Exhibit 2.1
AGREEMENT and PLAN OF MERGER
between
PREMIER BANCORP, INC.
and
PREMIER ACQUISITION CORPORATION
and
BANC ONE CORPORATION
TABLE OF CONTENTS TO MERGER AGREEMENT
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Page
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RECITALS
Section 1. Merger............................................... 2
Section 2. Name................................................. 2
Section 3. Business............................................. 2
Section 4. Effective Time of Merger; Articles of Incorporation.. 3
Section 5. Effect of Merger..................................... 3
Section 6. Liabilities upon Merger; Service of Process.......... 4
Section 7. Conversion of Shares................................. 5
Section 8. Board of Directors; Employees; and Name Change....... 9
Section 9. Employee Benefits and Stock Options.................. 9
Section 10. Undertakings of the Parties.......................... 10
Section 11. Tax Opinion.......................................... 18
Section 12. Representations and Warranties of BANC ONE........... 19
Section 13. Representations and Warranties of PAC................ 31
Section 14. Representations and Warranties of PREMIER............ 33
Section 15. Action by PREMIER Pending Effective Time............. 48
Section 16. Action by BANC ONE Pending Effective Time............ 52
Section 17. Conditions to Obligations of BANC ONE and PAC........ 54
Section 18. Conditions to Obligations of PREMIER................. 57
Section 19. Conditions to Obligations of All Parties............. 60
Section 20. Indemnification...................................... 61
Section 21. Non-Survival of Representations and Warranties....... 64
Section 22. Governing Law........................................ 65
Section 23. Assignment........................................... 65
Section 24. Satisfaction of Conditions; Termination.............. 65
Section 25. Waivers; Amendments.................................. 69
Section 26. Entire Agreement and 1992 Agreement.................. 69
Section 27. Captions; Counterparts............................... 70
Section 28. Notices.............................................. 70
SIGNATURES....................................................... 72
EXHIBIT A - PREMIER Subsidiaries List
EXHIBIT B - Form of Affiliates Agreement
EXHIBIT C - Opinion of Counsel for PREMIER
EXHIBIT D - Opinion of Counsel for BANC ONE and PAC
AGREEMENT AND PLAN OF MERGER
----------------------------
AGREEMENT AND PLAN OF MERGER dated as of July 19, 1995 (hereinafter called the
"Merger Agreement"), between Premier Bancorp, Inc. (hereinafter called
"PREMIER"), Premier Acquisition Corporation (hereinafter called "PAC") and BANC
ONE CORPORATION (hereinafter called "BANC ONE").
WITNESSETH:
PREMIER is a corporation duly organized under the laws of the State of
Louisiana. Its principal office is located at 451 Florida Street, Baton Rouge,
East Baton Rouge Parish, Louisiana. Except as set forth in Exhibit A hereto,
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PREMIER, or a subsidiary of PREMIER, owns, beneficially and of record, all of
the issued and outstanding capital stock of the banks listed in Exhibit A hereto
---------
(the "Banks") and of the corporations and limited liability companies listed in
Exhibit A hereto (collectively the "Companies"). The Banks and the Companies
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are hereinafter sometimes referred to collectively as the "Subsidiaries" and
each, sometimes, as a "Subsidiary."
PAC is a corporation duly organized under the laws of the State of Ohio. Its
principal office is located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇.
BANC ONE is a corporation duly organized under the laws of the State of Ohio.
Its principal office is located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇.
The respective Boards of Directors of PREMIER, PAC, and BANC ONE have each
approved this Merger Agreement and the consummation of the transactions
contemplated hereby and have approved the execution and delivery of this Merger
Agreement. This Merger Agreement provides for the merger of PREMIER with and
into PAC upon the terms and conditions of this Merger Agreement (the "Merger").
PAC will be the surviving corporation of the Merger. From and after the time
the Merger shall become effective as set forth in Section 4 of this Merger
Agreement,
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and as and when required by this Merger Agreement, BANC ONE will issue shares of
its common stock, without par value ("BANC ONE Common") in exchange for all of
the issued and outstanding shares of PREMIER common stock, without par value,
$5.00 stated value ("PREMIER Common"). It is understood by each of the parties
hereto that BANC ONE seeks, as a result of the Merger, to acquire PREMIER, the
Banks and the Companies and all of their respective operating assets and
liabilities. Subject to the terms and conditions of this Merger Agreement, all
parties will exert their best efforts to obtain such regulatory approvals and to
effect such other actions as are necessary or appropriate to consummate the
Merger.
In consideration of the premises, PREMIER, BANC ONE and PAC hereby make this
Merger Agreement and prescribe the terms and conditions of the Merger and the
mode of carrying the Merger into effect as follows:
1. Merger. Subject to the terms and conditions hereinafter set forth,
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PREMIER shall be merged with and into PAC pursuant to and in accordance
with applicable provisions of the Louisiana Business Corporation Law (the
"Louisiana BCL") and the General Corporation Law of the State of Ohio (the
"Ohio GCL"), with the result that PAC shall be the surviving corporation.
2. Name. The name of the surviving corporation (hereinafter called the
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"Surviving Corporation" whenever reference is made to it as of the
Effective Time or thereafter) shall be "Banc One Louisiana Corporation."
3. Business. The business of the Surviving Corporation shall be that of a
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bank holding company. The Surviving Corporation shall exist by virtue of,
and be governed by the laws of, the State of Ohio and shall have its
principal office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇.
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4. Effective Time of Merger; Articles of Incorporation. Certificates of Merger
---------------------------------------------------
shall be executed and filed with the Ohio Secretary of State and the
Louisiana Secretary of State pursuant to applicable provisions of the Ohio
GCL and the Louisiana BCL in order to cause the Merger to become effective
as soon as possible after the Closing (as defined in Section 10(c)). The
Merger shall become effective in accordance with applicable provisions of
the Ohio GCL and the Louisiana BCL on the later to occur of (i) the filing
with the Secretary of State of the State of Ohio of a Certificate of Merger
pursuant to Section 1701.81 of the Ohio GCL and (ii) the filing with the
Secretary of State of the State of Louisiana of a Certificate of Merger
pursuant to Section 12:112(F) of the Louisiana Revised Statutes (the
"Effective Time").
The Articles of Incorporation of PAC in effect as of the Effective Time
shall be the Articles of Incorporation of the Surviving Corporation, except
that Article FIRST of said Articles of Incorporation shall be amended,
effective as of the Effective Time, to be and read as follows:
FIRST: The name of this Corporation (hereinafter called the "Corporation")
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is Banc One Louisiana Corporation.
The Code of Regulations of PAC in effect as of the Effective Time shall be
the Code of Regulations of the Surviving Corporation.
5. Effect of Merger. At the Effective Time, the separate corporate existence
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of PREMIER and PAC, respectively, shall, as provided in applicable
provisions of the Ohio GCL and the Louisiana BCL, be merged into and
continued in PAC as the Surviving Corporation, which shall be deemed to be
the same corporation as PREMIER and PAC. All rights, franchises and
interests of PREMIER and PAC, respectively, in and to every type of
property, real, personal and mixed, and choses in action, shall be
transferred to and vested in PAC as the Surviving Corporation by virtue of
the Merger without any deed or other
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transfer in the same manner and to the same extent as such rights,
franchises and interests were held or enjoyed by PREMIER and PAC,
respectively, at the Effective Time, as provided in applicable provisions of
the Ohio GCL and the Louisiana BCL; provided, however, that with respect to
any real property of PREMIER situated in the State of Louisiana,
Certificates of Merger must be filed in the parishes in which such real
estate is situated in order to reflect transfer of such properties to the
Surviving Corporation.
6. Liabilities upon Merger; Service of Process. The Surviving Corporation
-------------------------------------------
shall be responsible for all of the liabilities of every kind and
description of PREMIER and PAC existing as of the Effective Time.
The filing of a Certificate of Merger with the Secretary of State of the
State of Louisiana, accompanied by such other documents as are required by
the Louisiana BCL, shall operate as a consent by the Surviving Corporation
that it may be sued and served with process in the State of Louisiana in any
suit, action or proceeding for the enforcement of any obligation or
liability of PREMIER; as an irrevocable consent by the Surviving Corporation
to service upon and by the Louisiana Secretary of State as agent of the
Surviving Corporation to accept service of process in any such suit, action
or proceeding for the enforcement of any such obligation or liability; and
as an appointment by the Surviving Corporation of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇ whose
address is ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as agent of the
Surviving Corporation for service of process in any action, suit or
proceeding to enforce any such obligation or liability of PREMIER, to whom
the Louisiana Secretary of State may mail a copy of any such process served
upon the Louisiana Secretary of State.
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7. Conversion of Shares.
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(a) At the Effective Time:
(i) Each share of PREMIER Common that is issued and outstanding
immediately prior to the Effective Time, together with any and all
PREMIER Common Stock purchase rights and related interests and
rights associated with each such share of PREMIER Common
("Rights") arising from, related to and/or issued pursuant to the
Rights Agreement dated January 18, 1989 between PREMIER and
Premier Bank, N.A., as Rights Agent (the PREMIER Rights Plan"), by
virtue of the Merger and without any action of the part of the
holder thereof shall thereupon be converted into 0.617761 share of
BANC ONE Common subject, however, to (i) the anti-dilution
provisions of Section 7(e) of this Merger Agreement and (ii)
provisions set forth in Section 7(c) with respect to fractional
shares (the "Exchange Rate").
(ii) The 500 shares of Common Stock of PAC issued and outstanding
immediately prior to the Effective Time shall, thereupon and
without further notice, continue to be issued and outstanding
shares of common stock of the Surviving Corporation.
(iii) Any shares of PREMIER Common held by PREMIER as treasury stock,
together with any and all Rights associated therewith arising
from, related to and/or issued pursuant to the PREMIER Rights
Plan, immediately prior to the Effective Time shall be canceled
and shall not represent capital stock of and/or any right or
interest with respect to BANC ONE or the Surviving Corporation and
shall not be exchanged for shares of BANC ONE Common.
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(iv) The Rights issued pursuant to the PREMIER Rights Plan shall
expire and neither the Surviving Corporation nor BANC ONE shall
have any obligations with respect thereto.
(b) PREMIER's shareholders of record at the Effective Time, for the shares
of PREMIER Common then held by them, respectively, shall be allocated
and be entitled to receive (upon surrender for cancellation of
certificates formerly representing shares of PREMIER Common and Rights
issued pursuant to the PREMIER Rights Plan) certificates for shares of
BANC ONE Common as shall be equal to the number of shares of PREMIER
Common outstanding immediately prior to the Effective Time multiplied
by the Exchange Rate.
(c) No certificate for fractional shares of BANC ONE Common will be issued
by BANC ONE in connection with the exchange contemplated by the Merger,
but in lieu thereof, any holder of PREMIER Common shall, upon surrender
of the certificate or certificates representing such PREMIER Common and
Rights issued pursuant to the PREMIER Rights Plan, be paid cash,
without interest, by BANC ONE for such fractional shares, if any, on
the basis of the BANC ONE Average Price (as hereinafter defined). The
BANC ONE Average Price shall mean the average of the closing prices of
BANC ONE Common on the New York Stock Exchange ("NYSE") during the
Valuation Period (as hereinafter defined) as reported in
The Wall Street Journal for NYSE Composite Transactions. The term
-----------------------
"Valuation Period" shall mean the ten consecutive NYSE trading days
ending on the eighth NYSE trading day immediately prior to the Closing
Date .
(d) As soon as practicable after the Effective Time, and subject to the
provisions set forth above relating to fractional shares, BANC ONE
will, or will cause ▇▇▇▇▇▇ Trust and Savings Bank, as Exchange Agent
for BANC ONE to, distribute to the former holders of PREMIER Common (or
their respective designees) in exchange
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for and upon surrender for cancellation by such holders of a
certificate or certificates formerly representing shares of PREMIER
Common and Rights issued pursuant to the PREMIER Rights Plan, the
certificate(s) for shares of BANC ONE Common in accordance with the
Exchange Rate. Each certificate formerly representing PREMIER Common
and Rights issued pursuant to the PREMIER Rights Plan shall be deemed
for all purposes to evidence the ownership of the number of shares of
BANC ONE Common into which such shares have been converted pursuant to
the Exchange Rate; provided, however, that, until such surrender of a
holder's certificate or certificates formerly representing shares of
PREMIER Common and Rights issued pursuant to the PREMIER Rights Plan,
the holder thereof shall not be entitled to receive any dividend or
other payment or distribution payable to holders of BANC ONE Common.
Upon such surrender (or, in lieu of surrender, other provisions
reasonably satisfactory to BANC ONE as are made as set forth in the
next following paragraph), there shall be paid to the person entitled
thereto the aggregate amount of dividends or other payments or
distributions (in each case without interest) which became payable
after the Effective Time, to the extent not previously paid to such
person, on the whole shares of BANC ONE Common represented by the
certificates issued upon such surrender and exchange or in accordance
with such other provisions, as the case may be. After the Effective
Time the holders of certificates formerly representing shares of
PREMIER Common and Rights issued pursuant to the PREMIER Rights Plan
shall cease to have rights with respect to such shares and to any
related Rights and their sole right shall be to exchange said
certificates for shares of BANC ONE Common and any fractional share
payment in accordance with this Merger Agreement.
Certificates formerly representing shares of PREMIER Common and Rights
issued pursuant to the PREMIER Rights Plan surrendered for cancellation
by each shareholder entitled to exchange such shares for shares of BANC
ONE Common
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shall be accompanied by such appropriate, executed letters of
transmittal as BANC ONE may reasonably require; provided, however, that
if there be delivered to BANC ONE by any person who is unable to
produce any such certificate formerly representing shares of PREMIER
Common and Rights issued pursuant to the PREMIER Rights Plan for
surrender (i) evidence to the reasonable satisfaction of BANC ONE that
any such certificate has been lost, wrongfully taken or destroyed, and
(ii) such security or indemnity as reasonably may be requested by BANC
ONE to save it harmless, and (iii) evidence to the reasonable
satisfaction of BANC ONE that such person is the owner of the shares
theretofore represented by each certificate claimed by him to be lost,
wrongfully taken or destroyed and that he is the person who would be
entitled to present each such certificate and to receive shares of BANC
ONE Common pursuant to this Merger Agreement, then BANC ONE, in the
absence of actual notice to it that any shares theretofore represented
by any such certificate have been acquired by a bona fide purchaser,
shall deliver to such person the certificate(s) representing shares of
BANC ONE Common (and any fractional share payment) which such person
would have been entitled to receive upon surrender of each such lost,
wrongfully taken or destroyed certificate representing shares of
PREMIER Common.
(e) If prior to the Effective Time, (i) PREMIER shall declare a stock
dividend or distribution upon or subdivide, split up, reclassify or
combine PREMIER Common or declare a dividend, or make a distribution,
on PREMIER Common in any security convertible into PREMIER Common or
(ii) BANC ONE shall declare a stock dividend or distribution upon or
subdivide, split up, reclassify or combine BANC ONE Common or declare a
dividend, or make a distribution, on BANC ONE Common in any security
convertible into BANC ONE Common, appropriate adjustment or adjustments
will be made in the Exchange Rate and other factors used to determine
or limit the Exchange Rate.
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8. Board of Directors, Employees and Name Changes. The directors of PREMIER
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immediately prior to the Effective Time shall serve as the directors of the
Surviving Corporation immediately following the Effective Time and until the
next annual meeting of shareholders at which their respective successors are
elected and qualified. The officers and employees of the Surviving
Corporation immediately following the Effective Time shall be the officers
and employees of PREMIER immediately before the Effective Time with each
such person to hold the same office in the Surviving Corporation as held by
such person in PREMIER. The directors, officers and employees of the
Subsidiaries immediately following the Effective Time shall be the officers
and employees of the respective Subsidiaries immediately before the
Effective Time. Subject to a review of the operations of PREMIER and its
Subsidiaries and to commercial conditions that exist as of the Effective
Time, it generally is the current intention of BANC ONE to retain the then
existing employees of PREMIER and the Subsidiaries.
PREMIER will cooperate with BANC ONE in the procurement of requisite
corporate and regulatory approvals and, if requested by BANC ONE, will use
its best efforts to take such other steps as are appropriate and necessary
to effect changes in the name of each of the Subsidiaries to include the
words "Bank One" or "Banc One" so that such name changes will become
effective at the Effective Time or such other time subsequent to the
Effective Time as may be requested by BANC ONE.
9. Employee Benefits and Stock Options. Following the Effective Time, the
-----------------------------------
stock options, if any, and employee benefit programs to be available and
applicable to the officers and employees of PREMIER and the Subsidiaries
shall be described in and governed by a Letter Agreement dated July 19, 1995
between PREMIER and BANC ONE (the "Benefits Agreement").
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10. Undertakings of the Parties. PREMIER, PAC and BANC ONE further agree as
---------------------------
follows:
(a) This Merger Agreement shall be submitted to the shareholders of PREMIER
for approval at a meeting to be called and held in accordance with
applicable law and the Articles of Incorporation and By-laws of
PREMIER. Such shareholders' meeting will be scheduled to be held at a
time mutually acceptable to PREMIER and BANC ONE approximately 30 to 45
days following the mailing by PREMIER of its proxy statement to its
shareholders, which mailing will promptly follow the effective date of
the registration statement to be filed by BANC ONE with the Securities
and Exchange Commission (the "SEC") as provided in Section 10(d).
PREMIER and BANC ONE will cooperate with each other in order to
facilitate the preparation, filing and clearance of the registration
statement and the proxy statement under federal and state securities
laws to be used with respect to such shareholders' meeting and the
exchange of shares as contemplated by this Merger Agreement. PREMIER's
obligation to submit this Merger Agreement to a vote at the
shareholders' meeting shall be subject to the receipt by PREMIER of the
opinion of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Incorporated, dated
as of a date not more than five days prior to the date of the Proxy
Statement/Prospectus with respect to the fairness of the transaction to
PREMIER's shareholders from a financial point of view satisfactory in
form and substance to PREMIER and its counsel.
(b) BANC ONE will promptly prepare and file an application (believed
in good faith by BANC ONE to be substantially complete in form and
substance) to the Board of Governors of the Federal Reserve System (the
"Board") under appropriate provisions of Section 3 and Section 4 of the
Bank Holding Company Act of 1956, as amended, and to the Louisiana
Commissioner of Financial Institutions (the "Commissioner") under
appropriate provisions of Louisiana Interstate Banking Law for prior
approval of the Merger or the proposed acquisition of PREMIER
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and/or one of more of the Subsidiaries by BANC ONE. PREMIER will
promptly furnish BANC ONE such information, appropriate representations
and documents as may be reasonably requested by BANC ONE in connection
therewith. BANC ONE will use its best efforts to cause such
applications to be approved by the Board and the Commissioner, and to
obtain such other regulatory consents and approvals as may be necessary
to facilitate the Merger, in each case as soon as possible. Before such
applications are filed, BANC ONE will provide PREMIER and its counsel
with an opportunity to promptly review drafts of all such applications
and to comment on the portions of such applications that contain
information about PREMIER. BANC ONE will promptly provide PREMIER and
its counsel with copies of all such applications as filed together with
correspondence to or from any such regulators related thereto.
(c) The closing of the Merger (the "Closing") shall, unless another date or
place is agreed to in writing by the parties hereto, take place at the
offices of BANC ONE, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ on the
last business day of a month which first occurs on or after the later
of (i) the expiration of any required waiting period following the
approval of the consummation of the Merger by the Board and
Commissioner, (ii) the date of the meeting of shareholders of PREMIER
to approve the Merger or (iii) the business day following the
satisfaction or waiver of all conditions to the Merger. The date on
which the closing is held is herein referred to as the "Closing Date."
(d) BANC ONE will promptly prepare and file with the SEC and use its best
efforts to cause to become effective as soon as possible, a
registration statement, including the related prospectus, and including
the proxy statement referred to in Section 10(a), above (the "Proxy
Statement/Prospectus"), and any required amendments thereto or
supplements to any prospectus contained therein, relating to the
issuance of BANC ONE Common in the Merger as contemplated by this
Merger
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Agreement. Such registration statement will not cover resales by any
persons who may be considered "underwriters" under Rule 145(c) of the
Securities Act of 1933, as amended (the "1933 Act"). PREMIER and its
counsel shall assist BANC ONE in the preparation of the Proxy
Statement/Prospectus and BANC ONE will provide PREMIER and its counsel
with an opportunity to prepare material particularly related to PREMIER
and matters with respect to disclosing the background of the
transaction and reasons for the transaction. Before being filed with
the SEC, BANC ONE will provide PREMIER and its counsel with the
opportunity to promptly review such filing and comment thereon, which
comments BANC ONE will reasonably consider. BANC ONE will promptly
provide PREMIER and its counsel with copies of all SEC filings related
to the Proxy Statement/Prospectus and the Registration Statement
together with correspondence to or from the SEC related thereto. BANC
ONE shall use its best efforts to have the shares of BANC ONE Common
qualified or exempted from qualification under all applicable state
securities laws as soon as possible. In the event that a stop order has
been issued, or threatened, by the SEC, that suspends or would suspend
the effectiveness of the registration statement, BANC ONE shall use its
best efforts to promptly remove, or cause not to be issued, any such
stop order.
(e) BANC ONE will assume and pay, or will cause PAC to pay, all expenses
incident to the obtaining of the requisite regulatory consents and
approvals. Without limiting the generality of the foregoing, the
expenses to be assumed and paid by BANC ONE shall include (i) all legal
and other expenses and taxes incurred by BANC ONE incident to the
consummation of the Merger contemplated by this Merger Agreement, (ii)
all legal and other expenses incurred by BANC ONE incident to the
preparation and filing of the applications to the Board and the
Commissioner and other requests for regulatory consents and approvals
with the appropriate bank regulatory agencies as set forth in or
contemplated by this Merger Agreement, (iii) all legal and other
expenses, if any, incurred in connection
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with the registration of BANC ONE Common under federal and state
securities laws, and (iv) expenses associated with obtaining the tax
opinion contemplated by Section 11 of this Merger Agreement. The
expenses to be assumed and paid by BANC ONE shall not include any legal
or other expenses incurred by PREMIER in the negotiation of this Merger
Agreement, the examination or review of documents for its own benefit,
in connection with its own corporate proceedings or to ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Incorporated or to any other investment banker
or advisor for services rendered on its behalf. BANC ONE will pay the
expenses of reproducing the Proxy Statement/Prospectus. PREMIER shall
be responsible for its legal and accounting fees associated with the
Proxy Statement/Prospectus, including the expenses and fees to ▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Incorporated with respect to any opinion
expressed with respect to the fairness of the Exchange Rate to the
holders of PREMIER Common.
(f) All information furnished by one party to another party in connection
with this Merger Agreement (whether before or after the date of this
Merger Agreement) and the transactions contemplated hereby which is
regarded by such furnishing party as confidential (and is so designated
not later than the time of delivery or the date of this Merger
Agreement) will be kept confidential by such other party and will be
used by such other party and its directors, officers, employees and
representatives of its advisors only in connection with this Merger
Agreement and the transactions contemplated hereby, except to the
extent that such information (i) is already known to such other party
when received, (ii) thereafter becomes lawfully obtainable from other
sources, otherwise than in violation of this paragraph or similar
duties or provisions regarding confidentiality, or (iii) is, in the
reasonable opinion of legal counsel for such other party, required to
be disclosed in any document filed with the SEC, the Board, the
Commissioner or any other governmental agency or authority.
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(g) Each of BANC ONE and PREMIER will provide the other with copies of all
filings it makes with the SEC under the Securities Exchange Act of
1934, as amended (the "1934 Act"), and the 1933 Act and the respective
rules and regulations of the SEC thereunder at the time such filings
are made at any time prior to the Effective Time. Insofar as any such
filing refers to or describes this Merger Agreement, the other party
hereto, or the transactions contemplated hereby, the filing party will
provide to the other party a draft thereof reasonably in advance of
making such filing, will provide the other party and its counsel
reasonable opportunity to comment on such filing and will give due
consideration to any comments of the other party and its counsel before
making such filing.
(h) BANC ONE and PAC will furnish to PREMIER all information concerning
BANC ONE and PAC reasonably required by PREMIER in connection with the
preparation of proxy solicitation materials for use in soliciting
proxies in connection with the meeting of PREMIER's shareholders called
for the purpose of voting on the Merger and will promptly advise
PREMIER if BANC ONE determines that any of such information is or
becomes false or misleading in any material respect. PREMIER will
furnish to BANC ONE all information concerning PREMIER and the
Subsidiaries reasonably required by BANC ONE in connection with BANC
ONE's preparation of the registration statement (including the related
prospectus) and any required amendments or supplements thereto, or in
connection with other filings by BANC ONE relating to the registration
of its shares to be issued in the Merger and will promptly advise BANC
ONE if PREMIER determines that any such information is or becomes false
or misleading in any material respect.
(i) No press release or other public disclosure of matters related to this
Merger Agreement or any of the transactions contemplated hereby shall
be made by PREMIER or BANC ONE unless the other party shall have
provided its prior
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consent to the form and substance thereof; provided, however, that
nothing herein shall be deemed to prohibit any party hereto from making
any disclosure which its counsel deems necessary or advisable in order
to fulfill such party's disclosure obligations imposed by law.
(j) As soon as possible after the execution of this Merger Agreement, BANC
ONE will vote all the shares of PAC to approve and adopt the proposal
to merge PREMIER with PAC at a meeting of the shareholders of PAC held
for such purpose or by means of a unanimous written consent of PAC's
shareholders adopted in lieu of a meeting to approve the Merger and
approve this Merger Agreement.
(k) BANC ONE will vote, and will cause its subsidiaries to vote, any shares
of PREMIER Common held by it or any such subsidiary, except for shares
held in a fiduciary capacity, to approve and adopt this Merger
Agreement and the Merger at a meeting of PREMIER shareholders held to
approve the Merger and adopt this Merger Agreement.
(l) For not less than the two-year period immediately following the
Effective Time, BANC ONE shall make available adequate current public
information about itself as that terminology is used in and as required
by Rule 144(c) of the SEC under the 1933 Act.
(m) PREMIER will use its reasonable best efforts to cause each person who,
in the joint opinion of counsel for BANC ONE and PREMIER, is at the
Effective Time or was, at the time of PREMIER's shareholders' meeting
referred to in Section 10 hereof, an "affiliate" of PREMIER (as that
term is used in Rules 144 and 145 promulgated by the SEC under the 1933
Act), to execute and deliver to BANC ONE a written agreement, in the
form of attached Exhibit B, that such person will
---------
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not sell, pledge, transfer or otherwise dispose of the shares of BANC
ONE Common to be received by such person in the Merger, except in
compliance with the applicable provisions of the 1933 Act.
(n) BANC ONE will initiate a pre-acquisition investigation and review of
the books, records and facilities of PREMIER and its Subsidiaries and
will complete such pre-acquisition investigation as soon as reasonably
possible but, in no event, not more than 60 days after the date of this
Merger Agreement. BANC ONE shall advise PREMIER at the conclusion of
such pre-acquisition investigation of all matters then known to BANC
ONE which are either (i) inconsistent in any material and adverse
respect with any of the representations and warranties of PREMIER
contained in this Merger Agreement or (ii), in the reasonable judgment
of the Board of Directors of BANC ONE, either (x) to be of such
significance as to materially and adversely affect the financial
condition or the results of operations of PREMIER and the Subsidiaries
on a consolidated basis or (y) to deviate materially and adversely from
PREMIER's audited financial statements for the year ended December 31,
1994 or PREMIER's unaudited financials for the three-month period ended
June 30, 1995. BANC ONE shall have the right to terminate this Merger
Agreement as set forth in Section 24(c).
(o) PREMIER will initiate a pre-acquisition investigation and review of the
books, records and facilities of BANC ONE and its subsidiaries and will
complete such pre-acquisition investigation not later than 10 business
days following the date of this Merger Agreement. PREMIER shall advise
BANC ONE at the conclusion of such pre-acquisition investigation of all
matters then known to PREMIER which are either (i) inconsistent in any
material and adverse respect with any of the representations and
warranties of BANC ONE contained in this Merger Agreement or (ii), in
the reasonable judgment of the Board of Directors of PREMIER, either
(x) to be of such significance as to materially and adversely affect
the financial
- 16 -
condition or the results of operations of BANC ONE and the subsidiaries
on a consolidated basis or (y) to deviate materially and adversely from
BANC ONE's audited financial statements for the year ended December 31,
1994 or BANC ONE's unaudited financials for the three-month period
ended June 30, 1995. PREMIER shall have the right to terminate this
Merger Agreement as set forth in Section 24(d).
(p) BANC ONE will use its reasonable best efforts to cause the shares of
BANC ONE Common to be issued to the shareholders of PREMIER pursuant to
this Merger Agreement to be listed on the NYSE as of the Closing Date.
(q) PREMIER shall take all action, as necessary, with respect to the
PREMIER Rights Plan, to prevent the approval, execution, delivery or
implementation of this Merger Agreement or the consummation of the
Merger, or the acquisition of shares of PREMIER Common by BANC ONE
pursuant to the provisions of this Merger Agreement from resulting in
the grant, issuance or triggering of any right or entitlement or the
obligation to grant or issue any interest in PREMIER Common, BANC ONE
Common or the common stock of the Surviving Corporation to any person
under the PREMIER Rights Plan or enabling or allowing any Right or
other interest associated with the PREMIER Rights Plan to be exercised,
distributed or triggered.
(r) PREMIER shall take all reasonable action pursuant to the provisions of
The Premier Bancorp, Inc. 1991 Stock Option Plan (the "PREMIER Stock
Option Plan") and the stock option agreements related thereto to
encourage the holders of such options to exercise such options so that
prior to the Closing Date all such options will have been converted
into shares of PREMIER Common.
- 17 -
(s) If at a time reasonably close to the anticipated Closing Date it
appears that options for shares of PREMIER Common issued to officers
and employees of PREMIER and the Subsidiaries related to the PREMIER
Stock Option Plan will not be exercised and converted into shares of
PREMIER Common prior to the Closing Date, BANC ONE will, prior to the
Effective Time, file with the SEC and use its reasonable best efforts
to cause to become effective not later than the Effective Time, a
registration statement on Form S-8 or other appropriate form to
register with the SEC the shares of BANC ONE Common which may be issued
to individuals upon the exercise of stock options assumed by BANC ONE
pursuant to the Benefits Agreement and will use its reasonable best
efforts to cause such registration statement to remain in effect until
the exercise or expiration of all such options and/or other stock-
related benefits. BANC ONE shall use its reasonable best efforts to
have the shares of BANC ONE Common which may be issued upon the
exercise of such options qualified or exempted from qualification from
all applicable state securities laws.
11. Tax Opinion. BANC ONE and PREMIER shall use their respective best
-----------
efforts to obtain from Coopers & ▇▇▇▇▇▇▇ a written opinion addressed to
PREMIER, its shareholders and BANC ONE that, based upon the Internal Revenue
Code and regulations thereunder and rulings issued by the Internal Revenue
Service in transactions similar to those contemplated by this Merger
Agreement:
(a) The statutory Merger of PREMIER with and into PAC will constitute a
reorganization within the meaning of Section 368(a)(1)(A) and Section
368(a)(2)(D) of the Internal Revenue Code;
(b) No gain or loss will be recognized by BANC ONE or PREMIER as a
consequence of the transactions herein contemplated;
- 18 -
(c) No gain or loss will be recognized to the shareholders of PREMIER on
the exchange of their shares of PREMIER Common for shares of BANC ONE
Common (disregarding for this purpose any cash received in lieu of
fractional share interests);
(d) The Federal income tax basis of the BANC ONE Common received by the
shareholders of PREMIER Common for their shares of PREMIER Common will
be the same as the Federal income tax basis of the PREMIER Common
surrendered in exchange therefor (reduced by any amount allocated to
fractional share interests for which cash is received); and
(e) The holding period of the BANC ONE Common received by a shareholder of
PREMIER will include the period for which the PREMIER Common exchanged
therefor was held, provided the exchanged PREMIER Common was held as a
capital asset by such shareholder on the date of the exchange.
12. Representations and Warranties of BANC ONE. BANC ONE represents and
------------------------------------------
warrants to PREMIER that, except as set forth in BANC ONE's disclosure
letter to PREMIER dated as of July 19, 1995 and delivered to PREMIER not
later than the time of the execution of this Merger Agreement (the "BANC ONE
Disclosure Letter"):
(a) BANC ONE is a corporation duly organized and validly existing in good
standing under the laws of the State of Ohio, is a registered bank
holding company under the Bank Holding Company Act of 1956, as amended,
and is qualified to do business and is in good standing in the State of
Ohio, together with all other jurisdictions where it is both required
to so qualify and where the failure to so qualify would have a material
adverse effect on the business, operations, financial condition or
results of operations of BANC ONE and its subsidiaries, taken as a
whole, or on the ability of BANC ONE to consummate the transactions
- 19 -
contemplated hereby (a "BANC ONE Material Adverse Effect"), and BANC
ONE has full power and authority (including all licenses, franchises,
permits and other governmental authorizations which are legally
required) to engage in the businesses and activities now conducted by
it and its subsidiaries. BANC ONE is not subject to any formal or
informal agreement or understanding with, nor is it subject to any
order of, any bank regulatory authority restricting or prohibiting or
attempting to restrict or prohibit any activities or conduct of BANC
ONE. Subject only to obtaining the required regulatory approvals, BANC
ONE is, and at all times after the date of this Merger Agreement to and
including the Effective Time will be, authorized to effect the Merger
under applicable law. As of March 31, 1995, the authorized capital
stock of BANC ONE consisted of (i) 600,000,000 shares of BANC ONE
Common, of which a total of 394,378,724 shares were issued and
outstanding and 15,630,500 were held by BANC ONE as treasury stock and
(ii) 35,000,000 shares of preferred stock without par value, of which
4,997,999 shares were issued and outstanding as Series C $3.50
Cumulative Convertible Preferred Stock. All of the issued and
outstanding shares of BANC ONE's capital stock are duly authorized,
validly issued, fully paid, nonassessable and subject to no pre-emptive
rights. Since March 31, 1995 BANC ONE has issued approximately 412,000
additional shares of BANC ONE Common and has issued no additional
shares of preferred stock.
(b) BANC ONE has furnished to PREMIER copies of the following financial
statements relating to BANC ONE and its consolidated subsidiaries: (i)
the audited Consolidated Balance Sheets of BANC ONE as of December 31,
1994 and 1993 and the Consolidated Statements of Income, Shareholders'
Equity and Cash Flows for each of the years in the three-year period
ended December 31, 1994, together with the notes thereto, as audited by
Coopers & ▇▇▇▇▇▇▇, independent auditors as included in BANC ONE's
Annual Report on Form 10-K for the year ended December 31, 1994 as
filed with the SEC; and (ii) the unaudited
- 20 -
Consolidated Balance Sheet of BANC ONE as at March 31, 1995 and the
related unaudited Consolidated Statements of Income, Shareholders'
Equity and Cash Flows for the quarter then ended, together with the
notes thereto as included in BANC ONE's Quarterly Report on Form 10-Q
for the quarter ended March 31, 1995, as filed with the SEC. Each of
the aforementioned financial statements, and all financial statements
included in Form 10-K or Forms 10-Q filed with the SEC subsequent to
the date of this Merger Agreement and prior to the Effective Time will,
present fairly, in accordance with generally accepted accounting
principles (applied on a consistent basis except as disclosed in the
footnotes thereto), the consolidated financial position and results of
operations of BANC ONE as of the dates and for the periods therein set
forth. Such financial statements do not or will not, as of the dates
thereof, include any material asset or omit any material liability,
absolute or contingent, or other fact, the inclusion or omission of
which renders or would render such financial statements, in light of
the circumstances under which they were made, misleading in any
material respect. Since March 31, 1995, there has not been any change
in the financial condition, results of operations or business of BANC
ONE and its subsidiaries that has had a BANC ONE Material Adverse
Effect.
(c) Since December 31, 1991, BANC ONE and each of its subsidiaries has
filed all reports, registrations and statements, together with any
required amendments thereto, that any of them was required to file with
(i) the SEC, including, but not limited to, all Forms 10-K, Forms 10-Q,
Forms 8-K, annual reports and proxy statements, (ii) the Board, (iii)
the Federal Deposit Insurance Corporation (the "FDIC"), (iv) the Office
of the Comptroller of the Currency (the "OCC") and (v) any applicable
state securities or banking authorities. All such reports and
statements filed (and to be filed in the future) with any such
regulatory body or authority are collectively referred to in this
Merger Agreement as the "Reports." As of their respective dates, the
Reports complied or, if filed in the future, will
- 21 -
comply, in all material respects with the respective rules and
regulations promulgated by the SEC, the Board, the FDIC, the OCC and
state securities or banking authorities, and did not contain at the
time filed, and all Reports to be filed after the date hereof and prior
to the Effective Time will not contain at the time filed, any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(d) The Boards of Directors of BANC ONE and PAC have duly authorized the
execution and delivery of this Merger Agreement and approved the Merger
as contemplated by this Merger Agreement. No authorization of this
Merger Agreement or of the transactions hereby contemplated is required
by the shareholders of BANC ONE. BANC ONE and PAC have all requisite
power and authority to enter into this Merger Agreement and BANC ONE
has and, after BANC ONE's vote of the shares of PAC in favor of the
Merger as contemplated by Section 10(j), BANC ONE and PAC will have the
corporate authority to consummate the transactions contemplated hereby.
Subject, with respect to PAC, to approval by BANC ONE as PAC's sole
shareholders, this Merger Agreement constitutes the valid and legally
binding and enforceable obligation of each of BANC ONE and PAC, and
this Merger Agreement and the consummation of the Merger have been duly
authorized and approved on behalf of BANC ONE and PAC by all requisite
corporate action. Neither the execution and delivery of this Merger
Agreement nor, provided the required approvals are obtained from the
Board and the Commissioner, the consummation of the Merger will
conflict with, result in the breach of, constitute a default under or
accelerate the performance provided by the terms of any law, or any
rule or regulation of any governmental agency or authority or any
judgment, order or decree of any court, bank regulatory agency or other
governmental agency to which BANC ONE is subject, any contract,
agreement or instrument to which BANC ONE is a party or by which
- 22 -
BANC ONE is bound or committed, or the Articles of Incorporation or
Code of Regulations of BANC ONE, or constitute an event which with the
lapse of time or action by a third party, could result in a default
under any of the foregoing or result in the creation of any lien,
charge or encumbrance upon any of the assets or properties of BANC ONE
or upon any of the stock of BANC ONE or adversely affect the ability of
BANC ONE to consummate the transactions contemplated hereby, except, in
the case of contracts, agreements or instruments, such defaults,
conflicts or breaches which either (i) will be cured or waived prior to
the Effective Time or (ii) if not so cured or waived would not, in the
aggregate, have a BANC ONE Material Adverse Effect.
(e) The reserve for possible loan and lease losses shown on the March 31,
1995 Consolidated Balance Sheet of BANC ONE is adequate in all material
respects under the requirements of generally accepted accounting
principles to provide for possible losses, net of recoveries relating
to loans previously charged off, on loans outstanding (including,
without limitation, accrued interest receivable) as of March 31, 1995.
(f) Except as disclosed in the financial statements referred to in Section
12(b), there is no litigation, action, suit, investigation or
proceeding pending or, to the best of the knowledge of BANC ONE and its
executive officers after due inquiry, overtly threatened against or
affecting BANC ONE or any of its subsidiaries or involving any of their
respective properties or assets, at law or in equity, before any
federal, state, municipal, local or other governmental authority, which
is reasonably likely to be resolved adversely to the interest of BANC
ONE or its subsidiaries and, if so resolved, would have a BANC ONE
Material Adverse Effect or materially impair its ability to perform
under this Merger Agreement, and to the best of the knowledge of BANC
ONE and its executive officers after due inquiry, no one has reasonable
or valid grounds on which it reasonably can be expected that anyone
- 23 -
will assert or initiate any such litigation, action, suit,
investigation or proceeding against BANC ONE or any of its
subsidiaries.
(g) At the Effective Time and on such subsequent dates when the former
shareholders of PREMIER surrender their PREMIER share certificates for
cancellation and exchange, the shares of BANC ONE Common to be
exchanged with former shareholders of PREMIER will have been duly
authorized and validly issued by BANC ONE and will be fully paid and
nonassessable and subject to no pre-emptive rights.
(h) BANC ONE and each of its subsidiaries have good and marketable title to
all their respective assets and properties, whether real or personal,
tangible or intangible, including without limitation the capital stock
of its subsidiaries and all other assets and properties reflected in
BANC ONE's Consolidated Balance Sheet as of March 31, 1995 or which
would be reflected thereon if not fully amortized or depreciated or
acquired subsequent thereto (except to the extent that such assets and
properties have been disposed of for fair value in the ordinary course
of business since March 31, 1995). Such assets and properties are
subject to no liens, mortgages, security interests, encumbrances,
pledges or charges of any kind, except (i) as noted in said
Consolidated Balance Sheet or the notes thereto or, with respect to
assets and properties acquired after March 31, 1995, as noted in BANC
ONE's Consolidated Balance Sheet or the notes thereto included in a
periodic report filed with the SEC; (ii) statutory liens for taxes not
yet delinquent; (iii) landlord's liens; and (iv) minor defects and
irregularities in title and encumbrances which do not materially impair
the use thereof for the purposes for which they are held; and such
liens, mortgages, security interests, encumbrances and charges do not,
in the aggregate, have a BANC ONE Material Adverse Effect. BANC ONE and
its subsidiaries as lessees have the unqualified right under valid and
subsisting leases to occupy, use, possess and control all property
leased by BANC ONE and
- 24 -
its subsidiaries. At the Effective Time all limitations affecting such
properties will not, in the aggregate, have a BANC ONE Material Adverse
Effect.
(i) To the best of the knowledge of BANC ONE and its executive officers
after due inquiry, BANC ONE and its subsidiaries have complied with all
laws, regulations and orders applicable to them and to the conduct of
their businesses, including without limitation all statutes, rules and
regulations pertaining to the conduct of banking activities, except for
violations which, together with any penalty which results therefrom,
have not had and will not have a BANC ONE Material Adverse Effect.
Neither BANC ONE nor any of its subsidiaries is in default under, and
no event has occurred which, to the best of the knowledge of BANC ONE
and its executive officers, after due inquiry, is likely to result in a
default under the terms of any judgment, decree, order, writ, rule or
regulation of any governmental authority or court, whether federal,
state or local and whether at law or in equity, in each case where the
default has had or is likely to have a BANC ONE Material Adverse
Effect.
(j) BANC ONE and PAC have not incurred and will not incur directly or
indirectly any liability for brokerage, finders' or investment bankers'
fees or commissions in connection with this Merger Agreement or the
transactions contemplated hereby.
(k) Each pension, stock bonus or purchase, profit-sharing, retirement,
health and welfare plan maintained by or covering employees of BANC ONE
or any subsidiary of BANC ONE other than a multi employer plan (for
purposes of this paragraph hereinafter referred to collectively as the
"Plans") which purports to be a qualified plan under Section 401(a) of
the Code is so qualified. All of the Plans which constitute employee
pension benefit or employee welfare benefit plans subject to the
Employee Retirement Income Security Act of 1974, as amended
- 25 -
("ERISA"), have been maintained in compliance in all material respects
with the applicable requirements of ERISA. All material notices,
reports and other filings required under applicable law to be given or
made to or with any governmental agency with respect to the Plans have
been timely filed or delivered. BANC ONE and its executive officers,
after due inquiry, have no knowledge of (i) any circumstances which
would adversely affect the qualification of the Plans or their
compliance with the applicable requirements of ERISA, or would result
or have resulted in liability under Title IV of ERISA or (ii) any
"reportable event" (as such term is defined in Section 4043(b) of
ERISA) or any "prohibited transaction" (as such term is defined in
Section 406 of ERISA and Section 4975(c) of the Code) which has
occurred since the date on which said sections became applicable to the
Plans and which could reasonably be expected to result in any material
liability of BANC ONE or any subsidiary to the Pension Benefit Guaranty
Corporation (the "PBGC"), the Department of Treasury, the Department of
Labor or any multiemployer plan. Those Plans which are defined benefit
plans within the meaning of ERISA meet the minimum funding standards
set forth in the Code and ERISA and the assets of such Plans equal or
exceed the current value of accrued benefits under such Plans on a
termination basis using PBGC interest rates as of the most recent plan
valuation dates. There are no pending or threatened claims (other than
claims for benefits in the ordinary course), lawsuits or arbitrations
which have been asserted or instituted against the Plans, any
fiduciaries thereof with respect to their duties to the Plans or the
assets of any of the trusts under any of the Plans which could
reasonably be expected to result in any material liability of BANC ONE
or any subsidiary to the PBGC, Department of Treasury, Department of
Labor or any multiemployer plan.
(l) Except where the failure to file would not have a BANC ONE Material
Adverse Effect, BANC ONE and/or its subsidiaries have duly filed all
federal, state, county and local income, franchise, bank, excise, real
and personal property and other tax
- 26 -
returns and reports (including, but not limited to, those relating to
social security, withholding, unemployment insurance, and occupation,
sales and use taxes and those filed on a consolidated, combined or
unitary basis) required to have been filed by BANC ONE or its
subsidiaries up to the date hereof. All of the foregoing returns are
true and correct in all material respects, and BANC ONE and its
subsidiaries have paid or, prior to the Effective Time, will pay all
taxes, interest, additions to tax, and penalties shown on such returns
or reports as being due or (except to the extent the same are contested
in good faith and, if material, summarized in the BANC ONE Disclosure
Letter) claimed to be due to any federal, state, county, local or other
taxing authority, and there is, and at the Effective Time will be, no
basis for any additional claim or assessment which might have a BANC
ONE Material Adverse Effect, except for those being contested in good
faith and summarized in the BANC ONE Disclosure Letter. BANC ONE and
its subsidiaries have paid or made adequate provision in their
financial statements or on their books and records for all taxes
payable in respect of all periods ending on or before the date hereof.
BANC ONE and its subsidiaries have, and at the Effective Time will
have, no liability for any taxes, interest, additions to tax, or
penalties of any nature whatsoever, except for those taxes which may
have arisen up to the Effective Time in the ordinary course of business
and are properly accrued on the books of BANC ONE and its subsidiaries
as of the Effective Time or are being contested in good faith and have,
if material, been summarized in the BANC ONE Disclosure Letter.
(m) BANC ONE and its subsidiaries have in effect insurance coverage with
reputable insurers, which in respect of amounts, premiums, types and
risks insured, constitutes reasonably adequate coverage against all
risks customarily insured against by bank holding companies and their
subsidiaries comparable in size and operations to BANC ONE and its
subsidiaries.
- 27 -
(n) Neither the Proxy Statement/Prospectus nor the related registration
statement nor any amendment or supplement thereto that is filed with
the SEC in connection with the transactions contemplated hereby (except
for any information which has been or shall be supplied in writing by
PREMIER specifically for inclusion in the Proxy Statement/Prospectus
and registration statement and is so included as so supplied) shall
contain (in the case of information relating to the Proxy
Statement/Prospectus, at the time it is mailed and in the case of
information relating to the registration statement at the time it
becomes effective and in both cases at the time of the meeting of
PREMIER's shareholders held to consider the proposed Merger) any untrue
statement of a material fact or shall omit to state any material fact
necessary to make the statements contained therein, in light of the
circumstances in which they are made, not misleading. The registration
statement and any amendments or supplements thereto that are filed with
the SEC in connection with the transactions contemplated hereby will
comply as to form in all material respects with the provisions of the
1933 Act and the rules and regulations promulgated thereunder.
(o) No employee of BANC ONE or any of its subsidiaries is represented, for
purposes of collective bargaining, by a labor organization of any type.
BANC ONE is unaware of any efforts during the past five years to
unionize or organize any employees of BANC ONE or any of its
subsidiaries, and no claim related to such employees under the Fair
Labor Standards Act, National Labor Relations Act, Civil Rights Act of
1964, ▇▇▇▇▇-▇▇▇▇▇ Act, ▇▇▇▇▇ ▇▇▇▇▇ Act, Civil Rights Act of 1866, Age
Discrimination in Employment Act, Equal Pay Act of 1963, Executive
Order No. 11246, Federal Unemployment Tax Act, Vietnam Era Veterans
Readjustment Act, Occupational Safety and Health Act, or any state or
local employment related law, order, ordinance or regulation, and no
unfair labor practice, discrimination or wage-and-hour claim is pending
or, to the best of the knowledge of BANC ONE and its executive officers
after due inquiry, threatened
- 28 -
against BANC ONE or any of its subsidiaries which claim has had or is
reasonably likely to have a BANC ONE Material Adverse Effect.
(p) To the best of knowledge of BANC ONE and its executive officers after
due inquiry: (i) with respect to any contaminant, pollutant, hazardous
substance, hazardous waste, hazardous pollutant, toxic pollutant, toxic
waste or toxic substance ("Contaminant"), there are no material
actions, proceedings or investigations pending or threatened before any
federal or state environmental regulatory body, or before any federal
or state court, alleging non-compliance with or liability in connection
with, by BANC ONE or any of its subsidiaries, the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C.
(S)(S) 9601 et seq. ("CERCLA"), the Resource Conservation and Recovery
Act, 42 U.S.C. (S)(S) 6901 et seq. ("RCRA"), the Clean Water Act, 33
U.S.C. (S)(S) 1251 et seq. ("CWA"), or the Clean Air Act, 42 U.S.C.
(S)(S) 7401 et seq. ("CAA"), as each is amended from time to time, or
any other federal, state, local or municipal statute, ordinance or
regulation, or order, ruling or other decision of any court,
administrative agency or other governmental authority relating to
health or safety or environmental protection (such statutes,
ordinances, regulations, orders, rulings and decisions, together,
"Environmental Laws"); (ii) there is no reasonable basis for the
institution of any material action, proceeding or investigation against
BANC ONE or any of its subsidiaries under any Environmental Law; (iii)
neither BANC ONE nor any of its subsidiaries is responsible in any
material respect under any Environmental Law for any release by any
person at or in the vicinity of real property of any Contaminant,
caused by the spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping or disposing of any
such hazardous substance into the environment (collectively "Release");
(iv) neither BANC ONE nor any of its subsidiaries is responsible for
any material costs of any response action required by virtue of any
Release of any Contaminant into the environment including, without
limitation, costs arising from
- 29 -
investigation, removal or remediation of Contaminants, security
fencing, alternative water supplies, temporary evacuation and housing
and other emergency assistance undertaken by any environmental
regulatory body or any other person; (v) BANC ONE and each of its
subsidiaries are, in all material respects, in compliance with all
applicable Environmental Laws; and (vi) no real property owned or used
by BANC ONE or any of its subsidiaries contains any Contaminant
including, without limitation, any asbestos, PCBs or petroleum products
or byproducts in any form, the presence, location or condition of which
(a) could require remediation or other corrective action pursuant to
any Environmental Law in any material respect, or (b) otherwise would
pose any significant health or safety risk unless remedial measures
were taken.
(q) BANC ONE and/or its subsidiaries (i) have surveyed the facilities where
BANC ONE and its subsidiaries conduct their businesses including,
without limitation, automatic teller machines (collectively, the "BANC
ONE Facilities") for compliance with the Americans with Disabilities
Act and the regulations issued thereunder (collectively, "ADA"); (ii)
have developed action plans to remove architectural barriers including
communication barriers that are structural in nature from existing BANC
ONE Facilities (collectively, the "BANC ONE Barriers") when such
removal is "readily achievable," as that term is defined in ADA; (iii)
have finalized action plans for automatic teller machines ("ATMs") in
conformance with the Joint Final Rule of the Architectural and
Transportation Barriers Compliance Board ("ATBCB") and the Department
of Transportation, effective August 16, 1993; (iv) have developed or
will develop schedules for BANC ONE Barrier removal from BANC ONE
Facilities in such action plans so that BANC ONE Barrier removal was
complete on January 26, 1992 or will be completed as soon as
practicable thereafter; and (v) have removed all BANC ONE Barriers in
BANC ONE Facilities or will cause all BANC ONE Barriers to be removed
in accordance with such action plans. All "alterations" (as such term
is
- 30 -
defined in ADA) to BANC ONE Facilities undertaken after January 26,
1992 comply with ADA and the ATBCB Accessibility Guidelines for
Buildings and Facilities ("ADAAG"). Effective January 26, 1992, all
plans and designs for new construction to be utilized by BANC ONE and
its subsidiaries comply with ADA and ADAAG. To the best of the
knowledge of BANC ONE and its executive officers, after due inquiry, no
material investigations, proceedings, or complaints, formal or
informal, are pending or threatened against BANC ONE and/or its
subsidiaries in connection with BANC ONE Facilities under ADA, ADAAG,
or any other state or federal law concerning accessibility for
individuals with disabilities.
(r) The statements made and the information included in the BANC ONE
Disclosure Letter and any attachments thereto shall be deemed to
constitute representations and warranties of BANC ONE under this Merger
Agreement to the same extent as if herein set forth in full. Anything
disclosed in the BANC ONE Disclosure Letter or the attachments thereto
shall be considered to have been disclosed for purposes of all
representations, warranties and covenants under this Merger Agreement.
13. Representations and Warranties of PAC and of BANC ONE with respect to PAC.
-------------------------------------------------------------------------
BANC ONE and PAC represent and warrant to PREMIER that, except as set forth
in the BANC ONE Disclosure Letter:
(a) PAC is a corporation duly organized and validly existing under the laws
of the State of Ohio and is qualified to do business and is in good
standing in the State of Ohio together with all other jurisdictions
where it is both required to so qualify and the failure to so qualify
would have a material adverse effect on the business, operations,
financial condition or result of operations of PAC or on the ability of
PAC to consummate the transactions contemplated hereby, and PAC has
full
- 31 -
power and authority (including all licenses, franchises, permits and
other governmental authorizations which are legally required) to engage
in the business and activities now conducted by it. The authorized
capital stock of PAC is, and at the Effective Time will be, 500 shares
of common stock, without par value, of which 500 shares are issued and
outstanding, all of which are, and at the Effective Time will be, owned
of record and beneficially by BANC ONE free and clear of all liens,
security interests or other encumbrances. PAC has no subsidiaries.
(b) The Board of Directors of PAC has authorized execution of this Merger
Agreement and approved the acquisition of PREMIER as contemplated by
this Merger Agreement. PAC has all requisite power and corporate
authority to enter into this Merger Agreement and, after the approval
of the Merger by BANC ONE, PAC will have the authority to consummate
the transactions contemplated hereby. Subject to shareholder approval,
this Merger Agreement will constitute the valid and legally binding
obligation of PAC and this Merger Agreement and the consummation hereof
have been duly authorized and approved on behalf of PAC by all
requisite corporate action. Neither the execution and delivery of this
Merger Agreement nor, subject to PAC shareholder approval and provided
the required approvals are obtained from the Board and the
Commissioner, the consummation of the Merger will conflict with, result
in the breach of, constitute a default under or accelerate the
performance provided by the terms of any law, or any rule or regulation
of any governmental agency or authority or any judgment, order or
decree of any court, bank regulatory agency or other governmental
agency to which PAC may be subject, any contract, agreement or
instrument to which PAC is a party or by which PAC is bound or
committed, or the Articles of Incorporation or Code of Regulations of
PAC, or constitute an event which with the lapse of time or action by a
third party, could result in a default under any of the foregoing or
result in the creation of any lien, charge or
- 32 -
encumbrance upon any of the assets or properties of PAC or adversely
affect the ability of PAC to consummate the transactions contemplated
hereby.
(c) PAC was incorporated on January 2, 1991 for the sole purpose of
effecting the acquisition of PREMIER, and has not conducted any
business other than in connection with the 1992 Agreement or this
Merger Agreement. Except as may be directly related to the 1992
Agreement or this Merger Agreement, PAC has no assets other than $500
in cash and no liabilities of any nature whatsoever.
14. Representations and Warranties of PREMIER. PREMIER represents and warrants
-----------------------------------------
to BANC ONE that, except as shall be set forth in PREMIER's disclosure
letter (and any attachments or schedules annexed thereto) to BANC ONE, to be
provided to BANC ONE by PREMIER pursuant to the provisions of Section 15(i)
of this Merger Agreement (the "PREMIER Disclosure Letter"):
(a) PREMIER is a corporation duly organized and validly existing in good
standing under the laws of the State of Louisiana, is a registered bank
holding company under the Bank Holding Company Act of 1956, as amended,
and is qualified to do business and is in good standing in all
jurisdictions where it is both required to so qualify and where the
failure to so qualify would have a material adverse effect on the
business, operations, financial condition or results of operations of
PREMIER and the Subsidiaries taken as a whole, or on the ability of
PREMIER to consummate the transactions contemplated hereby (a "PREMIER
Material Adverse Effect") and PREMIER has full corporate power and
authority (including all licenses, franchises, permits and other
governmental authorizations which are legally required) to engage in
the businesses and activities now conducted by it and the Subsidiaries.
PREMIER is not subject to any formal or informal agreement or
understanding with, nor is it subject to any order of, any bank
regulatory authority restricting or prohibiting or attempting to
restrict or prohibit
- 33 -
any activities or conduct of PREMIER. As of July 19, 1995, PREMIER had
authorized capital stock consisting of 100,000,000 shares of PREMIER
Common, of which a total of 33,828,969 shares were issued and
outstanding, not including 46,000 shares of treasury stock owned by
PREMIER, and 10,000,000 shares of PREMIER Preferred, none of which were
issued and outstanding. All of the issued and outstanding shares of
PREMIER Common are duly authorized, validly issued, fully paid and
nonassessable and none are issued in violation of the pre-emptive
rights of any shareholder. There are no outstanding options, warrants
or commitments of any kind related to PREMIER's capital stock and no
rights plan or other similar plan is related to PREMIER's capital stock
except for (i) options for not more than 1,132,090 shares of PREMIER
Common issued to officers and employees of PREMIER and its Subsidiaries
related to The Premier Stock Option Plan; (ii) certain rights and
interests granted to BANC ONE by PREMIER pursuant to the Amended and
Restated Agreement and Plan of Acquisition dated as of March 26, 1992
between BANC ONE and PREMIER, as amended by the First Amendment to
Amended and Restated Agreement and Plan of Acquisition dated as of
April 25, 1995 (together, the "1992 Agreement"); (iii) a commitment to
issue not more than 427,773 shares of PREMIER Common in exchange for
all the capital stock of HNB Corporation; (iv) shares issuable pursuant
to the Warrant Agreement dated as of March 26, 1992 between BANC ONE
and PREMIER (the "Warrant Agreement"); and (v) Rights issued or
issuable pursuant to the PREMIER Rights Plan.
(b) PREMIER has furnished to BANC ONE copies of the following financial
statements relating to PREMIER and the Subsidiaries on a consolidated
basis: (i) the audited Consolidated Balance Sheet of PREMIER as of
December 31, 1994 and 1993, and the Consolidated Statements of Income,
Stockholders' Equity and Cash Flows for each of the years in the three-
year period ended December 31, 1994, together with the notes thereto,
as audited by KPMG Peat Marwick,
- 34 -
Certified Public Accountants; and (ii) the unaudited Consolidated
Balance Sheet of PREMIER as at March 31, 1995 and the related unaudited
Consolidated Statement of Income and Cash Flows for the quarter then
ended, together with the notes thereto as included in PREMIER's
Quarterly Report on Form 10-Q for the quarter ended March 31, 1995 as
filed with the SEC. Each of the aforementioned financial statements,
and all financial statements included in Forms 10-K or Forms 10-Q filed
with the SEC subsequent to the date of this Merger Agreement and prior
to the Effective Time will, present fairly, in accordance with
generally accepted accounting principles (applied on a consistent basis
except as disclosed in the footnotes thereto), the consolidated
financial position and results of operations of PREMIER as of the dates
and for the periods therein set forth. Such financial statements do not
or will not, as of the dates thereof, include any material asset or
omit any material liability, absolute or contingent, or other fact, the
inclusion or omission of which renders or would render such financial
statements, in light of the circumstances under which they were made,
misleading in any material respect. Since March 31, 1995, there has not
been any change in the financial condition, results of operations or
business of PREMIER and the Subsidiaries that has had a PREMIER
Material Adverse Effect.
(c) Since December 31, 1991, PREMIER and each of its Subsidiaries has filed
all reports, registrations and statements, together with any required
amendments thereto, that any of them was required to file with (i) the
SEC, including, but not limited to, all Forms 10-K, Forms 10-Q, Forms
8-K, annual reports and proxy statements, (ii) the Board, (iii) the
FDIC, (iv) the OCC and (v) any applicable state securities or banking
authorities. All such reports and statements filed (and to be filed in
the future) with any such regulatory body or authority are collectively
referred to in this Merger Agreement as the "Reports." As of their
respective dates, the Reports complied or, if filed in the future, will
comply, with the respective rules and regulations promulgated by the
SEC, the Board, the FDIC,
- 35 -
the OCC and state securities or banking authorities, and did not
contain at the time filed, and all Reports to be filed after the date
hereof and prior to the Effective Time will not contain at the time
filed, any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading.
(d) The Board of Directors of PREMIER has duly authorized the execution and
delivery of this Merger Agreement and approved the Merger as
contemplated by the Merger Agreement and will recommend it to the
PREMIER shareholders for adoption unless, in the good faith judgment of
the Board of Directors such recommendation would be inconsistent with
its fiduciary duties. Subject to approval by the shareholders of
PREMIER and the contemplated regulatory approvals, this Merger
Agreement constitutes the valid, legally binding and enforceable
obligation of PREMIER and PREMIER has all requisite power and authority
to enter into this Merger Agreement and PREMIER has the authority to
consummate the transactions contemplated hereby so that, provided all
required corporate and regulatory approvals are obtained, neither the
execution and delivery of this Merger Agreement nor the consummation of
the Merger will conflict with, result in the breach of, constitute a
default under or accelerate the performance provided by the terms of
any law, or any rule or regulation of any governmental agency or
authority or any judgment, order or decree of any court, bank
regulatory agency or other governmental agency to which PREMIER is
subject, any contract, agreement or instrument to which PREMIER is a
party or by which PREMIER is bound or committed, or the Articles of
Incorporation or By-laws of PREMIER, or constitute an event which with
the lapse of time or action by a third party, could result in the
default under any of the foregoing or result in the creation of any
lien, charge or encumbrance upon any of the assets or properties of
PREMIER or upon any of PREMIER's capital stock, except, in the case of
contracts,
- 36 -
agreements or instruments, such defaults, conflicts or breaches which
either (i) will be cured or waived prior to the Effective Time or (ii)
if not so cured or waived would not, in the aggregate, have a PREMIER
Material Adverse Effect.
(e) The reserve for possible loan and lease losses shown on the March 31,
1995 Consolidated Balance Sheet of PREMIER is adequate in all material
respects under the requirements of generally accepted accounting
principles to provide for possible losses, net of recoveries relating
to loans previously charged off, on loans outstanding (including,
without limitation, accrued interest receivable) as of March 31, 1995.
(f) Except as disclosed in the financial statements referred to in Section
14(b), there is no litigation, action, suit, investigation or
proceeding pending or, to the best of the knowledge of PREMIER and its
executive officers after due inquiry, threatened against or affecting
PREMIER or any of its Subsidiaries or involving any of their respective
properties or assets, at law or in equity, before any federal, state,
municipal, local or other governmental authority which is reasonably
likely to be resolved adversely to the interest of PREMIER or its
Subsidiaries and, if so resolved, would have a PREMIER Material Adverse
Effect, and to the best of the knowledge of PREMIER and its executive
officers after due inquiry, no one has reasonable or valid grounds on
which it reasonably can be expected that anyone will assert or initiate
any such litigation, action, suit, investigation or proceeding against
PREMIER or any of the Subsidiaries.
(g) PREMIER and its Subsidiaries have good and marketable title to all
their respective assets and properties, whether real or personal,
tangible or intangible, including without limitation the capital stock
of its Subsidiaries and all other assets and properties reflected in
PREMIER's Consolidated Balance Sheet as of March 31, 1995 or which
would be reflected thereon if not fully amortized or
- 37 -
depreciated or acquired subsequent thereto (except to the extent that
such assets and properties have been disposed of for fair value in the
ordinary course of business since March 31, 1995). Such assets and
properties are subject to no liens, mortgages, security interests,
encumbrances, pledges or charges of any kind, except (i) as reflected
in said Consolidated Balance Sheet or the notes thereto or, with
respect to assets and properties acquired after March 31, 1995, as
noted in PREMIER's Consolidated Balance Sheet or the notes thereto
included in a periodic report filed with the SEC; (ii) statutory liens
for taxes not yet delinquent; (iii) landlord's liens; and (iv) minor
defects and irregularities in title and encumbrances which do not
materially impair the use thereof for the purposes for which they are
held; and such liens, mortgages, security interests, encumbrances and
charges do not, in the aggregate, have a PREMIER Material Adverse
Effect. PREMIER and its Subsidiaries as lessee have the right under
valid and subsisting leases to occupy, use, possess and control all
property leased by PREMIER and its Subsidiaries. At the Effective Time
all limitations affecting such properties will not, in the aggregate,
have a PREMIER Material Adverse Effect.
(h) To the best of the knowledge of PREMIER and its executive officers
after due inquiry, PREMIER and its Subsidiaries have complied with all
laws, regulations and orders applicable to them and to the conduct of
their businesses, including without limitation all statutes, rules and
regulations pertaining to the conduct of banking activities, except for
violations which, together with any penalty which results therefrom,
have not had and will not have a PREMIER Material Adverse Effect.
Neither PREMIER nor any of its Subsidiaries is in default under, and no
event has occurred which, to the best of the knowledge of PREMIER and
its executive officers, after due inquiry, is likely to result in a
default under the terms of any judgment, decree, order, writ, rule or
regulation of any governmental authority or court, whether federal,
state or local and whether at law or in equity,
- 38 -
in each case where the default has had or is likely to have a PREMIER
Material Adverse Effect.
(i) PREMIER has not, since March 31, 1995 to the date hereof, (i) sold or
issued any corporate debt securities, granted any option for the
purchase of capital stock or sold, issued, reissued or increased its
shares of its capital stock, except as may be permitted pursuant to
Section 15(b) hereof or as incurred in carrying out the transaction
contemplated by this Merger Agreement; (ii) declared or set aside or
paid any dividend or other distribution in respect of its capital
stock, except as may be permitted pursuant to Section 15(a) hereof;
(iii) directly or indirectly, purchased, redeemed or otherwise acquired
any shares of such stock; (iv) incurred any obligation or liability
(absolute or contingent) except obligations or liabilities incurred in
the ordinary course of business, or mortgaged, pledged or subjected to
lien or encumbrance on any of its material assets or properties except
in the ordinary cause of business; (v) discharged or satisfied any
material lien or encumbrance or paid any material obligation or
liability (absolute or contingent), except in the ordinary course of
business; (vi) sold, exchanged or otherwise disposed of any material
capital assets; (vii) made any extraordinary officers' salary increase
or wage increase, entered into any employment contract with any officer
or salaried employee or instituted any employee welfare, bonus, stock
option, profit-sharing, retirement or similar plan or arrangement;
(viii) suffered any damage, destruction or loss, whether or not covered
by insurance, that has had a PREMIER Material Adverse Effect or waived
any rights of value which, in the aggregate, have had a PREMIER
Material Adverse Effect; (ix) entered or agreed to enter into any
agreement or arrangement granting any preferential right to purchase
any of its material assets, properties or rights or requiring the
consent of any party to the transfer and assignment of any such
material assets, properties or rights; or (x) entered into any other
material transaction (other than in the ordinary course of business)
except as expressly contemplated by this Merger Agreement.
- 39 -
(j) Except as set forth in the PREMIER Document List (the "PREMIER Document
List") attached to the PREMIER Disclosure Letter, neither PREMIER nor
any of its Subsidiaries is a party to or bound by any written or oral
(i) employment or consulting contract which is not terminable by
PREMIER or its Subsidiaries on 60 days or less notice, (ii) employee
bonus, deferred compensation, pension, stock bonus or purchase, profit-
sharing, retirement or stock option plan, (iii) other employee benefit
or welfare plan, or (iv) other executory material agreements as defined
by the instructions to Exhibit 10 under Item 601 of SEC Regulation S-K.
All such pension, stock bonus or purchase, profit-sharing, retirement,
health and welfare plans (other than any multiemployer plans) set forth
in the PREMIER Document List are in this section hereinafter referred
to collectively as the "Plans." Those Plans intended to be qualified
plans under Section 401(a) of the Code meet any applicable requirements
for favorable tax treatment under the Code. All of the Plans which
constitute employee pension benefit plans or employee welfare plans
subject to ERISA have been maintained in compliance in all material
respects with the applicable requirements of ERISA. All material
notices, reports and other filings required under applicable law to be
given or made to or with any governmental agency with respect to the
Plans have been timely filed or delivered. PREMIER and its executive
officers after due inquiry have no knowledge of (i) any circumstances
which would adversely affect the qualification of the Plans or their
compliance with the applicable requirements of ERISA or would result or
have resulted in liability under Title IV of ERISA or (ii) any
unreported "reportable event" (as such term is defined in Section
4043(b) of ERISA) or any "prohibited transaction" (as such term is
defined in Section 406 of ERISA and Section 4975(c) of the Code) which
has occurred since the date on which said sections became applicable to
the Plans and which could reasonably be expected to result in any
material liability of PREMIER or any Subsidiary to the PBGC, the
Department of Treasury, the Department of Labor or any multiemployer
plan. Those Plans which are defined benefit plans within the meaning of
ERISA meet
- 40 -
the minimum funding standards set forth in the Internal Revenue Code
and ERISA and the assets of such Plans equal or exceed the current
value of accrued benefits on a termination basis under such Plans on a
termination basis using PBGC interest rates as of the most recent plan
valuation date. There are no pending or threatened claims (other than
claims for benefits in the ordinary course and pursuant to domestic
relations orders), lawsuits or arbitrations which have been asserted or
instituted against the Plans, any fiduciaries thereof with respect to
their duties to the Plans or the assets of any of the trusts under any
of the Plans which could reasonably be expected to result in any
material liability of PREMIER or any of its Subsidiaries to the PBGC,
the Department of Treasury, the Department of Labor or any
multiemployer plan.
(k) Except where the failure to file would not have a PREMIER Material
Adverse Effect, PREMIER and/or its Subsidiaries have duly filed all
federal, state, county and local income, franchise, bank, excise, real
and personal property and other tax returns and reports (including, but
not limited to, those relating to social security, withholding,
unemployment insurance, and occupation, sales, and use taxes and those
filed on a consolidated, combined or unitary basis) required to have
been filed by PREMIER or its Subsidiaries up to the date hereof.
PREMIER has made available to BANC ONE a copy of its Federal income tax
return for the years 1994 and 1993 and, if applicable, undertakes to
provide BANC ONE with a copy of its Federal income tax return for the
year 1995 when the same becomes available. All of the foregoing returns
are true and correct in all material respects, and PREMIER and its
Subsidiaries have paid or, prior to the Effective Time, will pay all
taxes, interest, additions to tax, and penalties shown on such returns
or reports as being due or (except to the extent the same are contested
in good faith and, if material, summarized in the PREMIER Disclosure
Letter) claimed to be due to any federal, state, county, local or other
taxing authority, and there is, and at the Effective Time will be, no
basis for any additional claim or assessment
- 41 -
which might have a PREMIER Material Adverse Effect, except for those
being contested in good faith and summarized in the PREMIER Disclosure
Letter. PREMIER and its Subsidiaries have paid or made adequate
provision in their financial statements or on their books and records
for all taxes payable in respect of all periods ending on or before the
date hereof. PREMIER and its Subsidiaries have, and at the Effective
Time will have, no liability for any taxes, interest, additions to tax,
or penalties of any nature whatsoever, except for those taxes which may
have arisen up to the Effective Time in the ordinary course of business
and are properly accrued on the books of PREMIER and the Subsidiaries
as of the Effective Time or are being contested in good faith and have,
if material, been summarized in the PREMIER Disclosure Letter.
(l) PREMIER and the Subsidiaries have in effect insurance coverage with
reputable insurers which in respect of amounts, premiums, types and
risks insured, constitutes reasonably adequate coverage against all
risks customarily insured against by bank holding companies and their
subsidiaries comparable in size and operations to PREMIER and the
Subsidiaries.
(m) PREMIER has not incurred and will not incur any liability for
brokerage, finders' or investment bankers' fees or commissions in
connection with this Merger Agreement or the transactions contemplated
hereby except for fees to ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇,
Incorporated as set forth in that certain letter dated March 18, 1994
between PREMIER and Merrill, Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇,
Incorporated which letter shall be included as an exhibit to the
PREMIER Disclosure Letter.
(n) PREMIER has annexed to the PREMIER Disclosure Letter a loan schedule
identifying certain loan agreements, notes and borrowing arrangements
(the "PREMIER Loan Schedule") between its Subsidiaries and borrowers
from its
- 42 -
Subsidiaries. Except as specifically noted on the PREMIER Loan
Schedule, as of June 30, 1995 no Subsidiary was a party to any (i)
written or oral loan agreement, note or borrowing arrangement under the
terms of which the obligor is delinquent more than 30 days, but less
than 90 days, in payment of principal or interest or, to the best of
PREMIER's knowledge, in default of any other provision as of the dates
shown thereon, other than (A) commercial loans the unpaid balance of
which does not exceed $100,000 per loan and (B) consumer, credit card
or other loans the unpaid balance of which does not exceed $50,000 per
loan; (ii) written or oral loan agreement, note or borrowing
arrangement which has been classified as "substandard," "doubtful,"
"loss," "other loans especially mentioned" or any comparable
classifications by PREMIER, such Subsidiary or any banking regulator;
(iii) written or oral loan agreement, note or borrowing arrangement,
including any loan guaranty, with any director, executive officer or
ten percent shareholder of PREMIER, or to the actual knowledge of
PREMIER and its executive officers, after due inquiry, any person,
corporation or enterprise controlling, controlled by or under common
control with any of the foregoing; or, (iv) to the best of PREMIER's
knowledge, any written or oral loan agreement, note or borrowing
arrangement in violation of any law, regulation or rule of any
governmental authority and which violation could, to the best of
PREMIER's knowledge after due inquiry, have a PREMIER Material Adverse
Effect.
(o) None of the information provided by PREMIER to BANC ONE for inclusion
in the Proxy Statement/Prospectus or related registration statement or
any amendment or supplement thereto (to the extent so included as so
provided) shall contain (in the case of information relating to the
Proxy Statement/Prospectus, at the time it is mailed and in the case of
information relating to the registration statement, at the time it
becomes effective and in both cases at the time of the meeting of
PREMIER's shareholders held to consider the proposed Merger) any untrue
statement of a material fact or shall omit to state any material fact
necessary to
- 43 -
make the statements contained therein, in light of the circumstances in
which they are made, not misleading. The Proxy Statement/Prospectus
that is filed with the SEC in connection with the meeting of the
shareholders of PREMIER will comply as to form in all material respects
with the provisions of the 1934 Act and the rules and regulations
promulgated thereunder.
(p) Except as specifically disclosed on the PREMIER Contracts Schedule
annexed to the PREMIER Disclosure Letter, neither PREMIER nor any
Subsidiary is, as of the date hereof, a party to any material contract
and/or any material credit agreement as obligor, maker, issuer or
guarantor and which contract or agreement contains covenants which make
the acquisition of PREMIER or any Subsidiary by or merger with another
entity a condition of default or acceleration.
(q) Attached hereto as Exhibit A is PREMIER's Subsidiaries List which sets
---------
forth the complete legal name of each Subsidiary and of any other
entity in which PREMIER and/or any Subsidiary owns or controls 5% or
more of its capital or voting stock, a designation of the laws under
which each is incorporated or organized, the percentage interest owned
by PREMIER or a Subsidiary in each such entity, the activities
conducted by each entity. Except as set forth in Exhibit A, PREMIER has
---------
no Subsidiaries or interests of 5% or more of the capital or voting
stock of any entity, except any entity in which such interest is owned
or controlled in a fiduciary capacity. Each of the Subsidiaries and
other entities set forth on Exhibit A is a corporation, limited
---------
liability company or similar entity duly organized and validly existing
in good standing under the laws of the United States or the state of
its incorporation and has full power and authority (including all
licenses, franchises, permits and other governmental authorizations
which are legally required) to engage in the businesses and activities
now conducted by it and is duly qualified to do business and is in good
standing in all jurisdictions where the failure to so qualify (together
with all such failures) would have a
- 44 -
PREMIER Material Adverse Effect. Except as may be set forth in
Exhibit A, PREMIER owns beneficially and of record all the outstanding
---------
shares of capital stock of each Subsidiary and entity listed on
Exhibit A, which stock is fully paid and non-assessable, except as
---------
provided by law. Neither PREMIER nor any Subsidiary listed on Exhibit A
---------
is a party to any partnership or joint venture except as may be set
forth and described in Exhibit A.
---------
(r) No employee of PREMIER or any of its Subsidiaries is represented, for
purposes of collective bargaining, by a labor organization of any type.
PREMIER is unaware of any efforts during the past five years to
unionize or organize any employees of PREMIER or any of its
Subsidiaries, and no claim related to such employees under the Fair
Labor Standards Act, National Labor Relations Act, Civil Rights Act of
1964, ▇▇▇▇▇-▇▇▇▇▇ Act, ▇▇▇▇▇ ▇▇▇▇▇ Act, Civil Rights Act of 1866, Age
Discrimination in Employment Act, Equal Pay Act of 1963, Executive
Order No. 11246, Federal Unemployment Tax Act, Vietnam Era Veterans
Readjustment Act, Occupational Safety and Health Act, or any state or
local employment related law, order, ordinance or regulation, and no
unfair labor practice, discrimination or wage-and-hour claim is pending
or, to the best of the knowledge of PREMIER and its executive officers
after due inquiry, threatened against PREMIER or its Subsidiaries,
which claim has had or is reasonably likely to have a PREMIER Material
Adverse Effect.
(s) To the best of the knowledge of PREMIER and its executive officers
after due inquiry: (i) with respect to any Contaminant, there are no
material actions, proceedings or investigations pending or threatened
before any federal or state environmental regulatory body, or before
any federal or state court, alleging non-compliance with or liability
in connection with, by PREMIER or any Subsidiary, CERCLA or any other
Environmental Laws; (ii) there is no reasonable basis for the
institution of any material action, proceeding or investigation against
- 45 -
PREMIER or any Subsidiary under any Environmental Law; (iii) neither
PREMIER nor any Subsidiary is responsible in any material respect under
any Environmental Law for any Release; (iv) neither PREMIER nor any
Subsidiary is responsible for any material costs of any response action
required by virtue of any Release of any Contaminant into the
environment including, without limitation, costs arising from
investigation, removal or remediation of Contaminants, security
fencing, alternative water supplies, temporary evacuation and housing
and other emergency assistance undertaken by any environmental
regulatory body or any other person; (v) PREMIER and each Subsidiary
is, in all material respects, in compliance with all applicable
Environmental Laws; and (vi) no real property owned or used by PREMIER
or any Subsidiary contains any Contaminant including, without
limitation, any asbestos, PCBs or petroleum products or byproducts in
any form, the presence, location or condition of which (a) could
require remediation or other corrective action pursuant to any
Environmental Law in any material respect, or (b) otherwise would pose
any significant health or safety risk unless remedial measures were
taken.
(t) PREMIER and/or the Subsidiaries (i) have surveyed the facilities where
PREMIER and its Subsidiaries conduct their businesses including,
without limitation, ATMs (collectively, the "PREMIER Facilities") for
compliance with ADA; (ii) have developed action plans to remove
architectural barriers including communication barriers that are
structural in nature from existing PREMIER Facilities (collectively,
the "PREMIER Barriers") when such removal is "readily achievable," as
that term is defined in ADA; (iii) have finalized action plans for ATMs
in conformance with the Joint Final Rule of the ATBCB and the
Department of Transportation, effective August 16, 1993; (iv) have
developed or will develop schedules for PREMIER Barrier removal from
PREMIER Facilities in such action plans so that PREMIER Barrier removal
was complete on January 26, 1992 or will be completed as soon as
practicable thereafter; and (v) have removed all
- 46 -
PREMIER Barriers in PREMIER Facilities or will cause all PREMIER
Barriers to be removed in accordance with such action plans. All
"alterations" (as such term is defined in ADA) to PREMIER Facilities
undertaken after January 26, 1992 comply with ADA and the ADAAG.
Effective January 26, 1992, all plans and designs for new construction
to be utilized by PREMIER and the Subsidiaries comply with ADA and
ADAAG. To the best of PREMIER's knowledge, after due inquiry, no
material investigations, proceedings, or complaints, formal or
informal, are pending or threatened against PREMIER and/or the
Subsidiaries in connection with PREMIER Facilities under ADA, ADAAG, or
any other state or federal law concerning accessibility for individuals
with disabilities.
(u) The statements made in the PREMIER Disclosure Letter and any
attachments thereto shall be deemed to constitute representations and
warranties of PREMIER under this Merger Agreement to the same extent as
if herein set forth in full. Anything disclosed in the PREMIER
Disclosure Letter or the attachments thereto shall be considered to
have been disclosed for purposes of all representations, warranties and
covenants under this Merger Agreement.
(v) PREMIER has taken or has the legal right to take all action with
respect to the PREMIER Rights Plan so that the execution of this Merger
Agreement and the consummation of the merger and other transactions, as
contemplated by the Merger Agreement, did not and will not result in
the grant, issuance or triggering of any right or entitlement or the
obligation to grant or issue any interest in PREMIER Common, BANC ONE
Common or the common stock of the Surviving Corporation to any person
under the PREMIER Rights Plan or enabling or allowing any Right
associated with the PREMIER Rights Plan to be exercised, distributed or
triggered at any time.
- 47 -
15. Action by PREMIER Pending Effective Time. PREMIER agrees that from the
----------------------------------------
date of this Merger Agreement until the earlier of the Effective Time or the
time that this Merger Agreement is terminated, except as stated in PREMIER's
Disclosure Letter and except with prior written permission of BANC ONE,
which, in any case covered by Section 15(d) hereof, shall not be
unreasonably withheld:
(a) Beginning with the third calendar quarter of 1995 and for each
succeeding calendar quarter thereafter prior to that calendar quarter
in which the Effective Time shall occur, PREMIER
(i) will not declare or pay any dividends or make any distributions
on shares of PREMIER Common, except cash dividends of $0.25 per
share per quarter;
(ii) except as hereinbelow provided, will not declare or pay any
dividends or make any distributions in any amount on its PREMIER
Common in the quarter in which the Effective Time shall occur
and for which quarter the shareholders of PREMIER Common are
entitled to receive regular quarterly dividends on the shares of
BANC ONE Common into which the shares of PREMIER Common have
been converted. It is the intent of this part (ii) to provide
that the holders of PREMIER Common will receive either the
payment of cash dividends on their shares of PREMIER Common or
the payment of cash dividends as the holders of shares of BANC
ONE Common received in exchange for the shares of PREMIER Common
for the calendar quarter during which the Effective Time shall
occur, but will not receive and will not become entitled to
receive for the same calendar quarter both the payment of a cash
dividend as shareholders of PREMIER and the payment of a cash
dividend as the holders of the shares of BANC ONE Common
received in exchange for the shares of
- 48 -
PREMIER Common. In the event that PREMIER does not declare and
pay cash dividends on its PREMIER Common in a particular
calendar quarter because of PREMIER's reasonable expectation
that the Effective Time would occur in said calendar quarter
wherein the holders of PREMIER Common would have become entitled
to receive cash dividends for such calendar quarter on the
shares of BANC ONE Common to have been exchanged for the shares
of PREMIER Common, and the Effective Time does not in fact occur
effective in said calendar quarter, then, as a result thereof,
PREMIER shall be entitled to declare and pay a cash dividend
(within the limitations of this Section 15) on said shares of
PREMIER Common for said calendar quarter as soon as reasonably
practicable.
For all cash dividends declared and/or paid by PREMIER pursuant to this
Section 15(a) prior to the Effective Time, PREMIER shall adopt a record
date for entitlement to receive any such quarterly dividend (the
"Record Date") which shall be the 15th day of the third month of any
such quarter; provided, however, that (i) the Record Date for a cash
dividend which may be declared and paid by PREMIER for and during the
third quarter of 1995 will not be so restricted with respect to the
Record Date and (ii) if BANC ONE and PREMIER agree that the Closing
will (a) not occur in a given calendar quarter or (b) will not occur
until after the 15th day of the third month of such given calendar
quarter, PREMIER will not be so restricted as to the selection of the
Record Date for such calendar quarter.
The declaration of any dividends within the limitations of this Section
15(a) shall remain within the discretion of the Board of Directors of
PREMIER.
- 49 -
(b) PREMIER will not (and will not contract or agree to) issue, sell, or
grant any warrant, option, phantom stock option, stock appreciation
right or commitment of any kind for or related to or acquire (or
contract or agree to acquire) for value any shares of its capital stock
or otherwise effect any change in connection with its equity
capitalization except as related to (i) the outstanding stock options
which have been granted to purchase not more than 1,132,090 shares of
PREMIER Common pursuant to the PREMIER Stock Option Plan and (ii) the
issuance of 427,773 shares of PREMIER Common in connection with
PREMIER's acquisition of HNB Corporation.
(c) Except as otherwise set forth in or contemplated by this Merger
Agreement, PREMIER will carry on its businesses in substantially the
same manner as heretofore, keep in full force and effect insurance
comparable in amount and scope of coverage to that now maintained by it
and use its best efforts to maintain and preserve its business
organization intact.
(d) Neither PREMIER nor any Subsidiary will (i) enter into any new line of
business or incur or agree to incur any obligation or liability except
liabilities and obligations (including corporate debt issuances)
incurred in the ordinary course of business, except as may be directed
by any regulatory agency; (ii) except as may be directed by any
regulatory agency or required by any law or regulation, change its or
the Subsidiaries' lending, investment, liability management and other
material banking policies in any material respect; (iii) except in the
ordinary course of business and consistent with prior practice, grant
any general or uniform increase in the rates of pay of employees; (iv)
establish any new employee benefit plan or amend any existing plan
(except as required by law) so as to increase by any significant amount
the benefits payable thereunder; (v) incur or commit to any capital
expenditures other than in the ordinary course of business (which will
in no event include the establishment of new branches or any other
facilities or any
- 50 -
capital expenditures in excess of $100,000 for any individual project
for any purpose); or (vi) merge into, consolidate with or, except for
the pending acquisition of HNB Corporation, permit any other
corporation to be merged or consolidated with it or any of its
Subsidiaries or acquire part of or all the assets or stock of any other
corporation or person or commit or agree to any such merger,
consolidation or acquisition.
(e) PREMIER will not change its or its Subsidiaries' methods of accounting
in effect at December 31, 1994, except as required by changes in
generally accepted accounting principles as concurred in by KPMG Peat
Marwick, or change any of its methods of reporting income and
deductions for Federal income tax purposes from those employed in the
preparation of PREMIER's federal income tax returns for the taxable
years ending December 31, 1994 and 1993, except as required by changes
in law.
(f) To the extent permitted by law, PREMIER will afford BANC ONE, its
officers and other authorized representatives, such access to all
books, records, bank examination reports, tax returns, leases,
contracts and documents of PREMIER and its Subsidiaries and will
furnish to BANC ONE such information with respect to the assets and
business of PREMIER and its Subsidiaries as BANC ONE may from time to
time reasonably request in connection with this Merger Agreement and
the transactions contemplated hereby.
(g) PREMIER will promptly provide BANC ONE with copies of all material
written resolutions of PREMIER's Board of Directors or shareholders,
furnish BANC ONE with copies of all monthly and other interim financial
statements of PREMIER as they become available, and keep BANC ONE fully
informed concerning all trends and developments which in the reasonable
opinion of PREMIER may have a PREMIER Material Adverse Effect.
- 51 -
(h) PREMIER, its Subsidiaries and their respective officers, directors and
employees will not contract for or acquire, at the expense of PREMIER
or any of its Subsidiaries, a policy or policies providing for
insurance coverage for directors, officers and/or employees of PREMIER
and/or its Subsidiaries for any period subsequent to the Effective Time
for events occurring before or after the Effective Time; provided,
however, that PREMIER may (i) renew, extend or replace existing
policies in the ordinary course consistent with past practices for
periods of not greater than one year and (ii) acquire a policy which
provides coverage through December 31, 1997 for those directors,
officers and/or employees of PREMIER and/or its Subsidiaries who are
presently provided coverage by policies obtained by PREMIER with
respect to (a) events related to this Merger Agreement and the events
contemplated by this Merger Agreement and (b) claims and/or causes of
action arising from or related to events which occurred prior to the
Closing Date.
(i) As soon as reasonably possible, but in any event within ten business
days from the date of this Merger Agreement, PREMIER will provide and
deliver to BANC ONE in final, executed form, the PREMIER Disclosure
Letter together with all schedules, lists, and other attachments
thereto as set forth and described in Section 14 of this Merger
Agreement.
16. Action by BANC ONE Pending Effective Time. BANC ONE agrees that from the
-----------------------------------------
date of this Agreement until the Effective Time, except as stated in BANC
ONE's Disclosure Letter and except with prior written permission of PREMIER:
(a) BANC ONE will not adopt or implement any amendment to its Articles of
Incorporation or any plan of reorganization which would affect in any
manner the terms and provisions of the shares of BANC ONE Common or the
rights of the holders of such shares or reclassify the BANC ONE Common.
- 52 -
(b) Except as otherwise set forth in or contemplated by this Merger
Agreement, BANC ONE will carry on its businesses in substantially the
same manner as heretofore, keep in full force and effect insurance
comparable in amount and scope of coverage to that now maintained by it
and use its best efforts to maintain and preserve its business
organization intact.
(c) BANC ONE will not change its methods of accounting in effect at
December 31, 1994, except as required by changes in generally accepted
accounting principles as concurred in with Coopers & ▇▇▇▇▇▇▇, its
independent auditors, or change any of its methods of reporting income
and deductions for federal income tax purposes from those employed in
the preparation of the federal income tax returns of BANC ONE for the
taxable years ending December 31, 1994 and 1993, except as required by
changes in law.
(d) To the extent permitted by law, BANC ONE will afford PREMIER, its
officers and other authorized representatives, such access to all
books, records, bank examination reports, tax returns, leases,
contracts and documents of BANC ONE and its subsidiaries and will
furnish to PREMIER such information with respect to the assets,
earnings and business of BANC ONE and its subsidiaries as PREMIER may
from time to time reasonably request in connection with this Merger
Agreement and the transactions contemplated hereby.
(e) BANC ONE agrees that while this Merger Agreement is in effect it will
not acquire, or enter into negotiations to acquire, directly or
indirectly, any bank located in Louisiana (other than Premier Bank)
with deposits in excess of $2 billion without the written consent of
PREMIER, which consent will not be unreasonably withheld.
- 53 -
17. Conditions to Obligations of BANC ONE and PAC. The obligations of BANC ONE
---------------------------------------------
and PAC to effect the Merger are subject, unless waived by BANC ONE, to the
satisfaction on or prior to the Effective Time of the following conditions:
(a) There shall not have been any change in the consolidated financial
condition, aggregate net assets, shareholders' equity, business or
operating results of PREMIER and its Subsidiaries, taken as a whole,
from, March 31, 1995 to the Effective Time that has had a PREMIER
Material Adverse Effect.
(b) PREMIER shall not have paid cash dividends from March 31, 1995 to the
Effective Time except as permitted under this Merger Agreement.
(c) All representations by PREMIER contained in this Merger Agreement shall
be true at, or as of, the Effective Time as though such representations
were made at and as of said date, except for (i) changes contemplated
by the Merger Agreement, (ii) representations as of a specified time
other than the Effective Time, which shall be true at such specified
time (provided, however, that the representation of PREMIER contained
in Section 14(e) shall be true in all material respects as applied to
the Consolidated Balance Sheet of PREMIER included in the most recently
available quarterly or annual report to PREMIER shareholders and/or
PREMIER's report to the SEC on Form 10-Q or Form 10-K as of the close
of the most recent calendar quarter prior to the Effective Time and the
reserve for possible loan and lease losses included therein, as though
each reference to "March 31, 1995" in such section were a reference to
the last day of the most recent calendar quarter prior to the Effective
Time), and (iii) inaccuracies or breaches which do not, individually or
in the aggregate, have a PREMIER Material Adverse Effect.
- 54 -
(d) BANC ONE shall have received the opinion of legal counsel for PREMIER,
dated as of the Closing Date, substantially to the effect set forth in
Exhibit C hereto, together with a copy of the Articles of
---------
Incorporation, as amended, of PREMIER certified by the Secretary of
State of the State of Louisiana and a copy of the charter documents, as
amended, of each Subsidiary and, for PREMIER and each Subsidiary,
Certificates of Good Standing dated as of a date not more than 20 days
prior to the Effective Time from the Louisiana Secretary of State, the
OCC, Commissioner or other appropriate government or regulatory
official.
(e) PREMIER shall have performed, in all material respects, all agreements
and conditions required by this Merger Agreement to be performed and
satisfied by it at or prior to the Effective Time.
(f) As of the close of the most recent calendar quarter (or if the
Effective Time shall occur within 20 days following the close of a
calendar quarter, then as of the next preceding calendar quarter)
cumulative per share earnings reported by PREMIER since March 31, 1995
shall be greater than or equal to the amount calculated by multiplying
(x) $0.50 by (y) the number of full calendar quarters which have passed
since March 31, 1995 and for which earnings have been reported by
PREMIER as of such date, times (z) 0.9. As used in this Section,
"reported" means reported on PREMIER's financial statements prepared in
accordance with generally accepted accounting principles applied on a
basis consistent with PREMIER's financial statements for the years
ended December 31, 1994 and 1993, as included in PREMIER's reports to
the SEC on Forms 10-K or PREMIER's annual reports to shareholders,
subject to any subsequent adjustments required to be reported whether
or not such adjustments have, as yet, been reported with the following
adjustments, if any, net of related income tax savings and costs, which
were reflected in net income for the relevant period(s) added back into
or deducted from net income for the applicable period: (i) investment
- 55 -
banking expenses and outside legal and accounting fees and expenses
associated with or resulting from the Merger; (ii) gains or losses on
sales of assets outside of the ordinary course of business; and (iii)
any other expenses upon which BANC ONE and PREMIER shall mutually
agree.
(g) The total number of shares of PREMIER Common issued and outstanding
(not including treasury shares held by PREMIER), together with the
total number of shares of PREMIER Common related to outstanding options
with respect to The Premier Stock Option Plan shares, shall not be more
than 35,388,832 shares.
(h) The holders of all credit agreements on which PREMIER or any of the
Subsidiaries is the maker, issuer or guarantor and which contain
provisions which make the acquisition of PREMIER by or merger into
another entity a condition of default or acceleration, which default or
acceleration would have a PREMIER Material Adverse Effect, shall have
provided BANC ONE with a written waiver of all such provisions.
(i) PREMIER shall have furnished BANC ONE a certificate, signed on its
behalf by the Chairman or President and the Secretary or an Assistant
Secretary of PREMIER and dated as of the Closing Date, certifying as to
the form of and adoption of resolutions of the Board and shareholders
of PREMIER approving the Merger Agreement and the Merger, respectively,
and to the effect that the conditions described in Paragraphs (a), (b),
(c), (e), (f) and (g) of this Section 17 have been satisfied.
(j) BANC ONE shall have received the opinion of Jones, Walker, Waechter,
Poitevent, Carrere & ▇▇▇▇▇▇▇, L.L.P., New Orleans, Louisiana, legal
counsel for PREMIER, dated as of the Effective Time, opining that in
the opinion of such counsel PREMIER has taken action with respect to
the PREMIER Rights Plan
- 56 -
appropriate to prevent the approval, execution or delivery of this
Merger Agreement or the acquisition of shares of PREMIER Common by BANC
ONE pursuant hereto, or consummation of the Merger or other transaction
contemplated by this Merger Agreement from resulting in the grant,
issuance or triggering of any right or entitlement or the obligation to
grant or issue any interest in PREMIER Common, BANC ONE Common or the
common stock of the Surviving Corporation to any person under the
PREMIER Rights Plan or enabling or allowing any right associated with
the PREMIER Rights Plan to be exercised, distributed or triggered.
(k) PREMIER shall have consummated its acquisition of HNB Corporation or
the agreement pursuant to which PREMIER had expected to acquire HNB
Corporation shall have terminated.
18. Conditions to Obligations of PREMIER. The obligations of PREMIER to effect
------------------------------------
the Merger are subject, unless waived by PREMIER, to the satisfaction on or
prior to the Effective Time of the following conditions:
(a) There shall not have been any change in the consolidated financial
condition, aggregate net assets, shareholders' equity, business, or
operating results of BANC ONE and its subsidiaries, taken as a whole,
from March 31, 1995 to the Effective Time that has had a BANC ONE
Material Adverse Effect.
(b) All representations by BANC ONE and PAC contained in this Merger
Agreement shall be true at, or as of, the Effective Time as though such
representations were made at and as of said date, except for changes
(i) contemplated by this Merger Agreement, (ii) representations as of a
specified time other than the Effective Time, which shall be true in
all material respects at such specified time (provided, however, that
the representation of BANC ONE contained in Section 12(e) shall
- 57 -
be true in all material respects as applied to the Consolidated Balance
Sheet of BANC ONE included in the most recently available quarterly or
annual report to BANC ONE's shareholders and/or BANC ONE's report to
the SEC on Form 10-Q or Form 10-K as of the close of the most recent
calendar quarter prior to the Effective Time and the reserve for
possible loan and lease losses included therein, as though each
reference to "March 31, 1995" in such section were a reference to the
last day of the most recent calendar quarter prior to the Effective
Time), and (iii) inaccuracies or breaches which do not, individually or
in the aggregate, have a BANC ONE Material Adverse Effect.
(c) PREMIER shall have received the opinion of counsel for BANC ONE and
PAC, (i) on and dated the date on which the registration statement
described in Section 10(d) of this Merger Agreement shall have become
effective as described in Section 19(c) of this Merger Agreement
substantially to the effect of paragraphs numbered 6, 7 and 8 of
Exhibit D hereto and (ii) on and dated as of the Closing Date
---------
substantially to the effect set forth in Exhibit D hereto, together
---------
with copies of the Articles of Incorporation of each of BANC ONE and
PAC certified by the Secretary of State of the State of Ohio and copies
of such other charter documents and Certificates of Good Standing of
BANC ONE and PAC dated as of a date not more than 20 days prior to the
day of the Effective Time from the Ohio Secretary of State as PREMIER
shall reasonably require.
(d) BANC ONE and PAC shall have performed, in all material respects, all
agreements and conditions required by this Merger Agreement to be
performed and satisfied by it at or prior to the Effective Time.
(e) As of the close of the most recent calendar quarter (or if the
Effective Time shall occur within 20 days following the close of a
calendar quarter, then as of the close of the next preceding calendar
quarter) cumulative per share earnings reported by
- 58 -
BANC ONE since March 31, 1995 shall be greater than or equal to the
amount calculated by multiplying (x) $0.77 by (y) the number of full
calendar quarters which have passed since March 31, 1995 and for which
earnings have been reported by BANC ONE as of such date, times (z) 0.9.
As used in this Section, "reported" means reported on BANC ONE's
consolidated financial statements prepared in accordance with generally
accepted accounting principles applied on a basis consistent with BANC
ONE's consolidated financial statements for the years ended December
31, 1994 and 1993, as included in BANC ONE's reports to the SEC on
Forms 10-K or BANC ONE's annual reports to shareholders subject to any
subsequent adjustments required to be reported to the SEC whether or
not such adjustments have, as yet, been reported with the effect of any
changes in accounting principles required to be adopted by BANC ONE by
any regulatory authority or under generally accepted accounting
principles, if any, net of related income tax savings and costs, which
were reflected in net income for the relevant period(s) added back into
or deducted from net income for the relevant period(s).
(f) BANC ONE shall have furnished PREMIER a certificate, signed by the
Chairman or President or an Executive Vice President and by the
Secretary or Assistant Secretary of BANC ONE and dated as of the
Closing Date certifying as to the form of and adoption of the
resolutions of the Board of BANC ONE approving the Merger Agreement and
the Merger, and to the effect that the conditions described in
Paragraphs (a), (b), (d), (e), (g) and (h) of this Section 18 have been
satisfied as to it.
(g) This Merger Agreement and the Merger shall have been duly approved and
adopted by the requisite affirmative vote of BANC ONE as the sole
shareholder of PAC or by the unanimous written consent of BANC ONE as
the sole shareholder of PAC.
- 59 -
(h) The shares of BANC ONE Common to be issued to the holders of PREMIER
Common shall have been approved for listing on the NYSE.
(i) PREMIER shall have received the opinion of ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇, Incorporated, dated as of a date not more than five
days prior to the date of the Proxy Statement/Prospectus with respect
to the fairness of the transaction to PREMIER's shareholders from a
financial point of view satisfactory in form and substance to PREMIER
and its counsel, and such opinion shall not have been withdrawn prior
to the Effective Time.
19. Conditions to Obligations of All Parties. In addition to the provisions of
----------------------------------------
Sections 17 and 18 hereof, the obligations of BANC ONE and PREMIER to effect
the Merger shall be subject to the satisfaction of the following conditions
on or prior to the Effective Time:
(a) The parties hereto shall have received all necessary approvals of
governmental agencies and authorities of the transactions contemplated
by this Merger Agreement and each of such approvals shall remain in
full force and effect at the Effective Time. BANC ONE shall notify
PREMIER promptly upon receipt of all necessary governmental approvals.
(b) At the Effective Time, (i) no party hereto shall be subject to any
order, decree or injunction of a court or governmental agency of
competent jurisdiction which enjoins or prohibits the consummation of
the Merger; (ii) no statute, rule, regulation, order, injunction or
decree shall have been enacted, entered, promulgated or enforced by any
governmental authority which prohibits or makes illegal consummation of
the Merger; and (iii) there shall have been no stop order issued or
threatened by the SEC that suspends or would suspend the effectiveness
of the registration statement, and no proceeding by the SEC shall have
been commenced, pending or overtly threatened for such purpose.
- 60 -
(c) The registration statement required to be filed by BANC ONE pursuant to
Section 10(d) of this Merger Agreement shall have become effective by
an order of the SEC, and the shares of BANC ONE Common to be exchanged
in the Merger shall have been qualified or exempted under all
applicable state securities laws.
(d) This Merger Agreement and the Merger shall have been duly approved and
adopted by the requisite affirmative vote of the shareholders of
PREMIER.
(e) Coopers & ▇▇▇▇▇▇▇ shall have issued its written opinion, dated as of
the Closing Date, satisfactory to PREMIER and BANC ONE, respectively,
substantially to the effect set forth in clauses (a) through (e) of
Section 11 of this Merger Agreement and there shall exist as of, at or
immediately prior to the Effective Time, no facts or circumstances
which would render such opinion inapplicable in any respect to the
transactions to be consummated hereunder.
20. Indemnification.
---------------
(a) In the event of any threatened or actual claim, action, suit,
proceeding or investigation, whether formal or informal and whether
civil, administrative or criminal, including, without limitation, any
such claim, action, suit, proceeding or investigation pursuant to which
any person who is now, or has been at any time prior to the date
hereof, or who becomes prior to the Effective Time, a director,
officer, employee, fiduciary or agent of PREMIER or any of its
Subsidiaries (the "Indemnified Parties") is, or is threatened to be,
made a party or a witness, based in whole or in part on, or arising in
whole or in part out of, or pertaining to, this Merger Agreement or any
of the transactions contemplated hereby (a "Merger Related Event"),
whether in any case asserted or arising before or after the Effective
Time, the parties hereto agree to cooperate and use their reasonable
best efforts to defend against and respond to such claim, action, suit,
proceedings or
- 61 -
investigation. With respect to any Merger Related Event, and
conditioned upon the Merger becoming effective, BANC ONE shall
indemnify, defend and hold harmless, as and to the fullest extent
permitted by applicable law, each Indemnified Party against any and all
losses, claims, damages, liabilities, costs, expenses (including
attorneys' fees and expenses), judgments and fines, and amounts paid in
settlement, in connection with any such threatened or actual claim,
action, suit, proceedings or investigation; provided, however, that
BANC ONE shall not be liable for any settlement effected without its
prior written consent (which consent shall not be unreasonably
withheld). In the event of any such threatened or actual claim, action,
suit, proceedings or investigation (whether asserted or arising before
or after the Effective Time), (i) BANC ONE shall pay expenses
(including attorney's fees and expenses) in advance of the final
disposition of any claim, suit, proceedings or investigation to each
Indemnified Party to the fullest extent permitted by applicable law,
and (ii) BANC ONE shall use its reasonable best efforts to vigorously
defend any such matter; provided, however, that BANC ONE's obligations
as herein set forth shall not apply to any losses, claims, damages,
liabilities, costs, expenses, judgments, fines and amounts paid in
settlement by any Indemnified Party involving the fraud, bad faith
and/or reckless disregard of such Indemnified Party or related to any
threatened or actual claim, action, suit, proceedings or investigation
brought by BANC ONE against any Indemnified Party. Any Indemnified
Party wishing to claim indemnification and defense under this Section
20(a) shall, upon the earlier to occur of (A) receiving actual notice
of any such claim, action, suit, proceeding or investigation, (B)
otherwise learning of such claim, action, suit, proceeding or
investigation or (C) receiving other information which would give a
reasonably prudent person reason to believe that such a claim, action,
suit, proceeding or investigation had or might be brought, notify BANC
ONE thereof as soon as reasonably practicable thereafter. BANC ONE's
obligations pursuant to this Section 20(a) are conditioned upon BANC
ONE being given prompt written notice of any such
- 62 -
claim, action, suit, proceeding or investigation, together with the
right to control and direct the investigation, defense and/or
settlement of each such matter, and further provided that the
Indemnified Party shall reasonably cooperate with BANC ONE in
connection therewith.
(b) BANC ONE shall insure that all rights to indemnification and defense
and all limitations of liability existing in favor of the Indemnified
Parties as provided in PREMIER's Articles of Incorporation and By-laws
or similar governing documents of any of its Subsidiaries, as in effect
as of February 20, 1991, or as otherwise provided for or allowed under
applicable law as in effect as of the date hereof or as such law is
amended at a time prior to the Effective Time, with respect to claims
or liabilities arising from facts or events existing or occurring prior
to the Effective Time, shall survive the Merger and shall continue in
full force and effect, without any amendment thereto, for a period of
ten (10) years from the Effective Time; provided, however, that all
rights to indemnification in respect of any claim asserted or made
within such period shall continue until the final disposition of such
claim.
(c) From and after the Effective Time, persons who, immediately prior to
the Effective Time, served as the directors, officers and employees of
PREMIER and its Subsidiaries, who, following the Effective Time,
continue as directors, officers and/or employees of the Surviving
Corporation or one of its subsidiaries, shall have indemnification and
defense rights having prospective application only, except, however,
for the indemnification and defense rights set forth in paragraphs (a)
and (b) of this Section 20. These prospective indemnification and
defense rights shall consist of (i) such rights to which directors,
officers and employees are entitled under the provisions of the
Articles of Incorporation, By-laws or similar governing documents of
the Surviving Corporation and its subsidiaries, as applicable, as in
effect from time to time after the Effective Time, as applicable,
- 63 -
and provisions of applicable law as in effect from time to time after
the Effective Time and (ii) those indemnification and defense rights
set forth in agreements, if any, between BANC ONE and the directors and
executive officers of the Surviving Corporation and its subsidiaries.
Such agreements, if any, which shall be executed as soon as practicable
following the Effective Time, shall provide certain indemnification and
defense rights that are comparable to those provided to directors,
officers and employees of BANC ONE and its subsidiaries generally, but
which rights may be greater or lesser than the indemnification and
defense rights available in clause (i) above.
(d) The obligations of BANC ONE and PAC provided under paragraphs (a) and
(b) of this Section 20 are intended to be the joint and several
obligations of BANC ONE and the Surviving Corporation and to benefit,
and be enforceable against BANC ONE and the Surviving Corporation
directly by the Indemnified Parties, and shall be binding on all
respective successors and permitted assigns of BANC ONE and the
Surviving Corporation.
(e) In the event BANC ONE or the Surviving Corporation or any of its
successors or assigns (i) consolidates with or merges into any other
person and shall not be the continuing or surviving corporation or
entity of such consolidation or merger, or (ii) transfers or conveys
all or substantially all of its properties and assets to any person,
then, and in each such case, proper provision shall be made so that the
successors and assigns of BANC ONE or the Surviving Corporation, as the
case may be, assume the obligations set forth in this Section 20.
21. Non-Survival of Representations and Warranties. The respective
----------------------------------------------
representations and warranties of PREMIER, BANC ONE and PAC contained in
this Merger Agreement shall not survive the Effective Time.
- 64 -
22. Governing Law. This Merger Agreement shall be construed and interpreted
-------------
according to the applicable laws of the State of Louisiana, except as the
laws of the State of Ohio are expressly applicable to the Merger.
23. Assignment. This Merger Agreement and all of the provisions hereof shall
----------
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Merger
Agreement nor any of the rights, interests, or obligations hereunder shall
be assigned by any of the parties hereto without the prior written consent
of the other parties.
24. Satisfaction of Conditions; Termination.
---------------------------------------
(a) BANC ONE and PAC agree to use their best efforts to obtain satisfaction
of the conditions of this Merger Agreement insofar as they relate to
BANC ONE and PAC, and PREMIER agrees to use its best efforts to obtain
the satisfaction of the conditions of this Merger Agreement insofar as
they relate to PREMIER, and in each case as soon as possible.
(b) At any time prior to the Effective Time, whether before or after
approval of the Merger by BANC ONE, as the sole shareholder of PAC, or
by PREMIER's shareholders, this Merger Agreement may be terminated upon
the occurrence of any of the following by written notice from BANC ONE
to PREMIER (authorized by the Board of Directors of BANC ONE), or by
written notice from PREMIER to BANC ONE (authorized by the Board of
Directors of PREMIER), as the case may be:
(i) By BANC ONE, if any material condition to the obligations of BANC
ONE and/or PAC set forth in Section 17 or 19 is not substantially
satisfied at the time or times contemplated thereby and such
condition is not waived
- 65 -
by BANC ONE, or by PREMIER, if any material condition to the
obligations of PREMIER set forth in Section 18 or 19 is not
substantially satisfied at the time or times contemplated thereby
and such condition is not waived by PREMIER;
(ii) In the event of a material breach by the other of any
representation, warranty, condition or agreement contained in
this Merger Agreement that is not cured within 30 days of the
time that written notice of such breach is received by such other
party from the party giving notice; or
(iii) If the Merger shall not have been consummated on or before July
1, 1996.
(c) In the event that PREMIER fails to deliver the PREMIER Disclosure
Letter to BANC ONE as set forth in Section 15(i) of this Merger
Agreement, BANC ONE may, upon written notice to PREMIER, terminate this
Merger Agreement; provided, however that notice of termination because
of such failure of delivery must be given by BANC ONE to PREMIER within
thirteen business days of the date of this Merger Agreement. If, upon
BANC ONE's review of the PREMIER Disclosure Letter delivered to BANC
ONE as required by Section 15(i), BANC ONE determines, in its sole
discretion, not to proceed with the Merger Agreement, BANC ONE may,
upon written notice to PREMIER, terminate this Merger Agreement;
provided, however, that BANC ONE shall complete its review of the
PREMIER Disclosure Letter and give PREMIER written notice of whether it
will or will not terminate the Merger Agreement pursuant to this
paragraph as soon as reasonably possible and, in any event, within ten
business days following the date on which the PREMIER Disclosure Letter
is received by BANC ONE.
In the event that the pre-acquisition investigation and review
described in Section 10(n) of this Merger Agreement discloses matters
which BANC ONE in good faith
- 66 -
believes to be either (i) inconsistent in any material respect with any
of the representations and warranties of PREMIER contained in this
Agreement or (ii) in the reasonable judgment of the Board of Directors
of BANC ONE, to be either (x) of such significance as to materially and
adversely affect the financial condition or the results of operations
of PREMIER and its Subsidiaries on a consolidated basis or (y) to
deviate materially and adversely from PREMIER's audited financial
statements for the year ended December 31, 1994 or PREMIER's unaudited
financials for the three-month period ended June 30, 1995, BANC ONE may
elect to terminate this Merger Agreement by giving written notice of
termination to PREMIER within seven days of the conclusion of such pre-
acquisition investigation.
(d) In the event that the pre-acquisition investigation and review
described in Section 10(o) of this Merger Agreement discloses matters
which PREMIER in good faith believes to be either (i) inconsistent in
any material respect with any of the representations and warranties of
BANC ONE contained in this Agreement or (ii) in the reasonable judgment
of the Board of Directors of PREMIER, to be either (x) of such
significance as to materially and adversely affect the financial
condition or the results of operations of BANC ONE and its subsidiaries
on a consolidated basis or (y) to deviate materially and adversely from
BANC ONE's audited financial statements for the year ended December 31,
1994 or BANC ONE's unaudited financials for the three-month period
ended June 30, 1995, PREMIER may elect to terminate this Merger
Agreement by giving written notice of termination to PREMIER within
seven days of the conclusion of such pre-acquisition investigation.
(e) This Merger Agreement may be terminated and abandoned (whether before
or after approval of the Merger by the shareholder of PAC or by
PREMIER's
- 67 -
shareholders) by mutual written consent of PREMIER, PAC and BANC ONE
authorized by their respective Boards of Directors.
(f) In the event of termination of this Merger Agreement for any reason,
including, but not limited to, the failure to receive the approval of
PREMIER's shareholders, the failure to receive or the withdrawal prior
to the Effective Time of the fairness opinion described in Section
18(i) of this Merger Agreement, or the failure of PREMIER to deliver
the PREMIER Disclosure Letter as set forth in Section 15(i) of this
Merger Agreement or BANC ONE's termination pursuant to the provisions
of Section 24(c), (i) this Merger Agreement shall cease and terminate
and the acquisition of PREMIER shall not be consummated pursuant to the
terms of this Merger Agreement and (ii) the 1992 Agreement, the Warrant
Agreement, the Amended and Restated Capital Note Agreement dated March
26, 1992 by and between PREMIER and BANC ONE (the "Capital Note
Agreement") and the related Subordinated Term Capital Note dated March
25, 1992 of PREMIER to BANC ONE (the "Capital Note") shall remain in
full force and effect without modification or amendment as more fully
set forth in Section 26.
Additionally, in the event of termination of this Merger Agreement
caused otherwise than by a willful breach of this Merger Agreement,
none of BANC ONE, PAC nor PREMIER shall have any liability to any other
party under this Merger Agreement of any nature whatever, except for
(i) obligations to pay expenses expressly assumed by BANC ONE in
Section 10(e) and (ii) the obligations of the parties with respect to
confidential information as set forth in Section 10(f), which
obligations shall survive any such termination.
(g) If termination of this Merger Agreement shall be judicially determined
to have been caused by willful breach of this Merger Agreement, in
addition to other remedies at law or equity for breach of this Merger
Agreement, the party so found
- 68 -
to have willfully breached this Merger Agreement shall indemnify the
other parties for their respective costs, fees and expenses of their
counsel, accountants and other experts and advisors as well as fees and
expenses incident to negotiation, preparation and execution of this
Merger Agreement and related documentation and their shareholders'
meetings and consents.
25. Waivers; Amendments. Any of the provisions of this Merger Agreement may
-------------------
be waived at any time by the party which is, or the shareholders of which
are, entitled to the benefit thereof. This Merger Agreement may be amended
or modified in whole or in part by an agreement in writing executed in the
same manner (but not necessarily by the same persons) as this Merger
Agreement and which makes reference to this Merger Agreement; provided,
however, such amendment or modification may be made only following due
authorization by the respective Boards of Directors of PREMIER, PAC and BANC
ONE; provided, further, however, that after a favorable vote by the
shareholders of PREMIER any such action shall be taken by PREMIER only if,
in the opinion of its Board of Directors, such amendment or modification
will not have any material adverse effect on the benefits intended under
this Merger Agreement for the shareholders of PREMIER, will not violate
Section 112H(2) of the Louisiana BCL, and will not require resolicitation of
any proxies from such shareholders.
26. Entire Agreement and 1992 Agreement. Subject to the exceptions noted in
-----------------------------------
this Section 26, this Merger Agreement supersedes any other agreement,
whether written or oral, that may have been made or entered into by PREMIER,
PAC and BANC ONE or by any officer or officers of such parties relating to
the acquisition of the business or the capital stock of PREMIER and/or its
Subsidiaries by BANC ONE or PAC. Except for the BANC ONE Disclosure Letter
and any attachments thereto, the PREMIER Disclosure Letter and any
attachments thereto, the Benefits Agreement addressing benefit plans and
policies, and the 1992 Agreement, the Warrant Agreement, the Capital Note
Agreement and the Capital Note, this Merger Agreement and the exhibits
hereto constitute the entire
- 69 -
agreement by the parties, and there are no agreements or commitments except
as set forth herein and therein.
Until this Merger Agreement is terminated pursuant to the provisions of
Section 24 or the Merger becomes effective pursuant hereto, this Merger
Agreement supersedes the 1992 Agreement, the Warrant Agreement and any other
agreement related to the 1992 Agreement, other than the Capital Note
Agreement and related Capital Note. In the event that this Merger Agreement
is terminated or if, for any reason, the Merger does not, pursuant to this
Merger Agreement, become effective, the 1992 Agreement, the Warrant
Agreement, the Capital Note Agreement, the Capital Note and any other
agreement related to the 1992 Agreement shall remain in full force and
effect, without amendment, and the parties shall have the rights and
obligations therein set forth. If the Merger becomes effective pursuant to
this Merger Agreement, the 1992 Agreement, the Warrant Agreement and any
related agreement shall become null and void and shall have no force and
effect; provided, however, the Capital Note Agreement and the related
Capital Note will remain in full force and effect. It is the intent of the
parties that until the Merger becomes effective pursuant to this Merger
Agreement, none of the 1992 Agreement, the Warrant Agreement, the Capital
Note Agreement, the Capital Note or other agreement between BANC ONE and
PREMIER of even date therewith shall be vacated or otherwise terminated as a
result of this Merger Agreement and/or any provision of this Merger
Agreement.
27. Captions; Counterparts. The captions in this Merger Agreement are for
----------------------
convenience only and shall not be considered a part of or affect the
construction or interpretation of any provision of this Merger Agreement.
This Merger Agreement may be executed in several counterparts, each of which
shall constitute one and the same instrument.
28. Notices. Any notice or other communication given under this Merger
-------
Agreement shall be in writing, and shall be deemed duly delivered when
received upon delivery either
- 70 -
(i) by hand, (ii) by telegram or facsimile transmission, (iii) by a
nationally recognized overnight courier service, or (iv) by registered or
certified mail, postage prepaid, addressed as set forth below.
(a) If to BANC ONE, to:
BANC ONE CORPORATION
Attention of: Chief Executive Officer
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
With a copy to:
BANC ONE CORPORATION
Attention of: ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
General Counsel
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
(b) If to PREMIER, to:
Premier Bancorp, Inc.
Attention of: Chief Executive Officer
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to:
Premier Bancorp, Inc.
Attention: General Counsel
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(c) If to PAC, to:
Premier Acquisition Corporation
Attention of: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Chairman
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
- 71 -
IN WITNESS WHEREOF, this Merger Agreement has been executed the day and year
first above written.
BANC ONE CORPORATION
ATTEST:
/s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------- --------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Assistant Secretary Senior Executive Vice President
Premier Bancorp, Inc.
ATTEST:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇ By: /s/ G. ▇▇▇ ▇▇▇▇▇▇▇
-------------------------------- --------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇ G. ▇▇▇ ▇▇▇▇▇▇▇
Secretary Chief Executive Officer
Premier Acquisition Corporation
ATTEST:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------- --------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Secretary Chairman
- 72 -
EXHIBITS TO AGREEMENT AND PLAN OF MERGER
----------------------------------------
Exhibit A - PREMIER Subsidiaries List
Exhibit B - Form of Affiliate Agreement
Exhibit C - Opinion of Counsel for PREMIER
Exhibit D - Opinion of Counsel for BANC ONE and PAC
EXHIBIT A
---------
List of Subsidiaries
of
PREMIER BANCORP, INC. (1)
-------------------------
Premier Bank, National Association -- Jurisdiction, United States 1933. Member
of the Federal Reserve System.
Premier Leasing Corporation -- Incorporated in Louisiana -- 12/28/62.
Subsidiary of Premier Bank, engages in vehicle and equipment leasing.
Louisiana National Leasing Corporation of Texas -- Incorporated in Texas --
5/13/82. Inactive subsidiary of Premier Leasing Corporation.
Tri-State Minerals, Inc. -- Incorporated in Louisiana -- 6/19/86. Premier Bank
acquired the stock through foreclosure, holds title to various oil and gas
producing properties; dividends minimal amounts of royalities to Premier Bank
from time to time.
Pyramid Land & Investment Company -- Incorporated in Louisiana. Inactive
subsidiary of Tri-State Minerals, Inc. acquired through foreclosure, formerly
held title to various oil and gas producing properties.
Premier Mortgage Company, L.C. -- Limited Liability Company in Lousiana --
12/30/93. Subsidiary of Premier Bank (99.9% ownership), engages in the
origination and servicing of residential mortgage loans.
Premier Venture Capital Corporation, II -- Incoporated in Louisiana -- 11/12/93.
Subsidiary of Premier Bank, small business investment corporation organized to
provide start-up capital for small high-technology companies located in
Louisiana.
Louisiana Credit Life Agency, Inc. -- Incorporated in Louisiana -- 4/19/84.
Inactive subsidiary of Premier Bank, established to engage in credit/mortgage
insurance business.
Louisiana Credit Life Insurance Co., Inc. -- Incorporated in Arizona --
12/12/83. Subsidiary of Premier Bank, engages in underwriting, as reinsurer, of
credit/mortgage life and credit/mortgage disability insurance.
Premier LLC, Inc. -- Incorporated in Lousiana -- 3/2/84. Active subsidiary of
Premier Bank which holds .01% ownership in each of Premier Bank's limited
liability subsidiaries.
Terre Reality, Inc. -- Incorporated in Louisiana --5/5/88. Inactive subsidiary
of Premier Bank formerly held title to foreclosed property.
KSS, Inc. -- Incorporated in Louisiana -- 12/29/88. Subsidiary of Premier Bank,
holds title to oil field equipment acquired through foreclosure.
Premier Investment Advisors, L.L.C. -- Limited Liability Company in Louisiana --
12/30/93. Subsidiary of Premier Bank (99.9% ownership), provides investment
advisor services.
Premier Securities Corporation -- Incorporated in Louisiana -- 8/29/85.
Provides brokerage services to customers.
Premier Acquisition, Inc. -- Incorporated in Louisiana -- 6/8/94. Formed in
connection with merger of Heritage Financial Corporation.
Terre Agency, Inc. -- Incorporated in Louisiana -- 6/7/76. Inactive subsidiary,
formerly acted as agent in the sale of credit life insurance.
Louisiana Bancshares, Inc. -- Incorporated in Louisiana -- 1/24/85. Name saver
subsidiary.
---------------
\1\ Unless otherwise noted above, all corporations are wholly-owned
subsidiaries of Premier Bancorp, Inc.
EXHIBIT B
---------
(FORM OF AFFILIATE AGREEMENT)
AFFILIATE AGREEMENT
-------------------
, 1995
------------------
In consideration and anticipation of the receipt by the undersigned of Common
Stock of BANC ONE CORPORATION ("BANC ONE") upon consummation of a proposed
merger (the "Merger") of Premier Bancorp, Inc. ("PREMIER") and Premier
Acquisition Corporation, a subsidiary of BANC ONE, pursuant to the terms of a
certain Agreement and Plan of Merger dated , 1995, (the "Merger
----------
Agreement"), and in view of the fact that the undersigned has, pursuant to the
Merger Agreement, been identified as a possible "affiliate" of PREMIER within
the meaning of Rules 144 and 145 ("Rule 144" and "Rule 145," respectively), as
amended, of the General Rules and Regulations under the Securities Act of 1933,
as amended (the "1933 Act"), the undersigned (the "Affiliate") represents and
undertakes as follows:
The Affiliate shall not offer, sell or otherwise dispose of or transfer any of
the shares of the Common Stock of BANC ONE to be received by him upon
consummation of the Merger, including shares of BANC ONE Common Stock acquired
by the Affiliate within the two year period following the Merger as a result of
the Affiliate's exercise of options on BANC ONE Common Stock acquired in
substitution for unexercised options on PREMIER Common Stock, (the "Shares"),
except the Affiliate may offer, sell or transfer the Shares (1) in a manner and
to the extent permitted by the applicable provisions of Rule 145, (2) pursuant
to an effective registration statement relating to the Shares under the 1933
Act, or (3) in a transaction which, in the opinion of counsel for the Affiliate
or as described in a "no-action" or interpretive letter from the staff of the
Securities and Exchange Commission, in each case reasonably satisfactory in form
and substance to BANC ONE, is exempt from the registration requirements of the
1933 Act.
BANC ONE's transfer agents may be given appropriate instructions prohibiting
transfer of the Shares unless these provisions are complied with and the
certificate(s) for the Shares may bear a restrictive legend in substantially the
following form:
The shares represented by this certificate have been issued to the registered
holder as a result of a transaction to which Rule 145 under the Securities Act
of 1933, as amended (the "1933 Act") applies. The shares represented by this
certificate may not be sold, transferred or assigned, and the issuer shall not
be required to give effect to any attempted sale, transfer or assignment, except
pursuant to (i) a registration statement then in effect under the 1933 Act, (ii)
a transaction permitted by Rule 145 as to which the issuer has received evidence
of compliance with the provisions of said Rule 145 reasonably satisfactory to it
or (iii) a transaction which, in the opinion of counsel for the Affiliate or as
described in a 'no action' or interpretive letter from the staff of the
Securities and Exchange Commission, in each case reasonably satisfactory in form
and substance to the issuer, is exempt from the registration requirements of the
1933 Act. The restrictions of this paragraph shall become null and void and
this paragraph shall have no effect on and after .
---------------
The undersigned undertakes to take such action as shall be necessary to cause
the Shares to be received by the undersigned to be registered in a manner that
will allow for the placement of a restrictive legend on the certificate(s)
representing such Shares.
IN WITNESS WHEREOF, the Affiliate has executed this Affiliate Agreement as of
the day and year first above written.
------------------------------------
(OPINION OF COUNSEL FOR PREMIER) EXHIBIT C
---------
, 199
------------- -
BANC ONE CORPORATION
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Gentlemen:
We are counsel to Premier Bancorp, Inc., a Louisiana corporation and a
registered bank holding company ("PREMIER") and have acted as counsel for
PREMIER in connection with the merger (the "Merger") of PREMIER with and into
Premier Acquisition Corporation ("PAC"), an Ohio corporation and a wholly owned
subsidiary of BANC ONE CORPORATION ("BANC ONE"), pursuant to which each of the
issued and outstanding shares of PREMIER's Common Stock will be converted into
shares of BANC ONE Common Stock. The Merger is to be consummated pursuant to
the terms of an Agreement and Plan of Merger dated , 1995 ("Merger
-------------
Agreement"), between PAC, PREMIER and BANC ONE. This opinion is furnished to
you pursuant to Section 17(d) of the Merger Agreement.
Except as otherwise indicated herein, capitalized terms used in this Opinion
Letter are defined in the Merger Agreement or the Legal Opinion Accord (the
"Accord") of the ABA Section of Business Law (1991), respectively. In the event
of any inconsistency between the definition of any such term in the Merger
Agreement and the Accord, the definition set forth in the Accord shall govern.
This Opinion Letter is governed by, and is to be interpreted in accordance with,
the Accord. As a consequence, it is subject to a number of qualifications,
exceptions, definitions, limitations on coverage, and other limitations, all as
more particularly described in the Accord, and this Opinion Letter should be
read in conjunction therewith.
The law covered by the opinions expressed herein is limited solely to the laws
of the State of Louisiana and the Federal Laws of the United States generally.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Merger Agreement is enforceable against PREMIER.
BANC ONE CORPORATION
, 1995
-----------
Page 2
2. Except as set forth in the PREMIER Disclosure Letter, the execution and
delivery by PREMIER of, and the performance by PREMIER of its agreements in,
the Merger Agreement does not (a) violate the respective Constituent
Documents of PREMIER; (b) violate applicable provisions of statutory law or
regulation; (c) breach or otherwise violate any existing obligation of
PREMIER under any Court Orders of which the Opinion Giver has Actual
Knowledge; or (d) to the Opinion Giver's Actual Knowledge, breach, or result
in a default under, any material obligation of PREMIER under a material
Other Agreement.
3. To the Opinion Giver's Actual Knowledge, there are no actions or proceedings
against PREMIER or any of its subsidiaries, pending or overtly threatened in
writing, before any court, governmental agency or arbitrator which seek to
affect the enforceability of the Merger Agreement.
The General Qualifications apply to each of the opinions set forth above.
We are rendering this opinion solely for the benefit of BANC ONE and PAC in
connection with the transactions described in the Merger Agreement. It may not
be relied upon by any other person or for any other person, or quoted or filed
with any regulatory agency without our prior approval.
Very truly yours,
--------------------
--------------------
EXHIBIT D
---------
(OPINION OF COUNSEL FOR BANC ONE AND PAC)
, 199
--------------- -
Premier Bancorp, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chairman
Gentlemen:
I am counsel for BANC ONE CORPORATION, an Ohio corporation and a registered bank
holding company ("BANC ONE"), and Premier Acquisition Corporation ("PAC"), an
Ohio corporation, registered bank holding company and wholly owned subsidiary of
BANC ONE. I have acted as counsel for BANC ONE and PAC in connection with the
merger (the "Merger") of Premier Bancorp, Inc. ("PREMIER") and PAC pursuant to
which each of the issued and outstanding shares of PREMIER Common Stock will be
converted into shares of BANC ONE Common Stock. Such Merger is to be
consummated pursuant to the terms of an Agreement and Plan of Merger dated
, 1995("Merger Agreement") between PREMIER, PAC and BANC ONE. This
-----------
opinion is furnished to you pursuant to Section 18(c) of the Merger Agreement.
Except as otherwise indicated herein, capitalized terms used in this Opinion
Letter are defined in the Merger Agreement or the Legal Opinion Accord (the
"Accord") of the ABA Section of Business Law (1991), respectively. In the event
of any inconsistency between the definition of any such term in the Merger
Agreement and the Accord, the definition set forth in the Accord shall govern.
This Opinion Letter is governed by, and is to be interpreted in accordance with,
the Accord. As a consequence, it is subject to a number of qualifications,
exceptions, definitions, limitations on coverage, and other limitations, all as
more particularly described in the Accord, and this Opinion Letter should be
read in conjunction therewith.
The law covered by the opinions expressed herein is limited solely to the laws
of the State of Ohio and the Federal Laws of the United States generally.
Based upon and subject to the foregoing, I am of the opinion that:
Premier Bancorp, Inc.
, 1995
------------
Page 3
1. The Merger Agreement is enforceable against BANC ONE.
2. The Merger Agreement is enforceable against PAC.
3. Except as set forth in the BANC ONE Disclosure Letter, the execution and
delivery by BANC ONE and PAC of, and the performance by BANC ONE and PAC of
their agreements in, the Merger Agreement does not (a) violate the respective
Constituent Documents of BANC ONE and PAC; (b) violate applicable provisions
of statutory law or regulation; (c) breach or otherwise violate any existing
obligation of BANC ONE or PAC under any Court Orders of which the Opinion
Giver has Actual Knowledge; or (d) breach, or result in a default under, any
material obligation of BANC ONE or PAC under a material Other Agreement of
which the Opinion Giver has Actual Knowledge.
4. Insofar as I am aware, the conditions to obligations of PREMIER as set forth
in the Merger Agreement have been satisfied or waived by PREMIER and the
representations and warranties of BANC ONE and PAC as set forth in the Merger
Agreement were true as of the date of the Merger Agreement and are, to the
extent required by Section 18(b) of the Merger Agreement, true as of the date
hereof.
5. To the best of my actual knowledge, I hereby confirm to you, pursuant to the
requirements of Section 12(f) of the Merger Agreement, that there are no
actions or proceedings against BANC ONE or any of its subsidiaries, pending
or overtly threatened in writing, before any court, governmental agency or
arbitrator which (i) seek to affect the enforceability of the Merger
Agreement or (ii) come within the objective standard established in the
Merger Agreement for disclosure, except as set forth in the BANC ONE
Disclosure Letter.
6. I have participated in the preparation of the Registration Statement on Form
S-4 or other appropriate registration statement form (No. ) of
------------
BANC ONE ("Registration Statement"), and in rendering this opinion have
limited my review of the facts concerning the Registration Statement to
discussions with and inquiry of Directors, officers and employees of BANC
ONE, and Coopers & ▇▇▇▇▇▇▇, the independent accountants who examined certain
of the financial statements of BANC ONE included in the Registration
Statement, and based thereon and subject to the General Qualifications, I am
of the opinion that such Registration Statement, and the Prospectus included
in the Registration Statement (except as to financial statements, other
financial data and any information concerning PREMIER included therein, as to
which I express no opinion) at the time the Registration Statement became
effective under the Securities Act of 1933 (the "1933 Act") complied as to
form in all material respects with the 1933 Act and the rules and regulations
of the Securities and Exchange Commission thereunder.
Premier Bancorp, Inc.
, 1995
-----------
Page 4
7. I confirm that the Registration Statement has become effective under the 1933
Act, and to the best of my Actual Knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the ▇▇▇▇ ▇▇▇.
8. I have not checked the accuracy or completeness of, or otherwise verified,
any statement of fact contained in the Registration Statement and Prospectus.
Based on the participations, discussions and inquiries described above,
however, I have no reason to believe that the Registration Statement (except
as to financial statements, other financial data and any information
concerning PREMIER included therein, as to which no view is expressed) at the
time it became effective and as of the date of this letter contained any
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, or that the Prospectus (except as to financial
statements, other financial data and any information concerning PREMIER
included therein, as to which no view is expressed) at such times contained
any untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading or that since the
effective date of the Registration Statement, any event has occurred which
should have been set forth in an amendment or supplement to the Registration
Statement or the Prospectus which has not been set forth in such an amendment
or supplement.
The General Qualifications apply to all of the opinions set forth above.
I am rendering this opinion solely for the benefit of BANC ONE and PAC in
connection with the transactions described in the Merger Agreement. It may not
be relied upon by any other person or for any other person, or quoted or filed
with any regulatory agency without my prior approval.
Very truly yours,
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