Voting Agreements
Simultaneous with the execution of the Merger Agreement, UBSH and XBKS entered into a Voting Agreement (collectively, the Voting Agreements) with
each of the following shareholders of XBKS:
ACMO-HR,
L.L.C., CapGen Capital Group VI LP, Carlyle Financial Services Harbor, L.P., and BCP Fund I Virginia Holdings, LLC (the Institutional
Shareholders).
Each Institutional Shareholder agreed, among other things, to vote the shares of XBKS Common Stock owned beneficially and over which
such Institutional Shareholder has voting power in favor of the Merger Agreement, the Merger, the Plan of Merger and any related matters and against any alternative acquisition proposal, any corporate action the consummation of which would
reasonably be expected to frustrate the purposes, or prevent or materially delay the consummation of, the transactions contemplated by the Merger Agreement, any corporate action the consummation of which would reasonably be expected to result in a
breach of any covenant, representation or warranty or any other obligation or agreement of XBKS under the Merger Agreement and any other matter relating to, or in connection with, any of the foregoing.
The Institutional Shareholders have agreed to customary
lock-up
restrictions on the transfer of their shares of UBSH
Common Stock for a period of 60 days following the Effective Time. The Institutional Shareholders have also agreed to customary
non-solicitation
covenants relating to alternative acquisition proposals. The
Voting Agreements also provide that any investor agreement between XBKS and such Institutional Shareholder will terminate at the Effective Time. Each Institutional Shareholder and UBSH have also agreed, at each Institutional Shareholders
option, to enter into a registration rights agreement within 30 days following the Effective Time, which registration rights agreement would apply to up to all the shares of UBSH Common Stock that the Institutional Shareholder, as of the Effective
Time, owns or has the right to receive pursuant to the terms of the Merger Agreement.
The Voting Agreements will terminate in certain circumstances,
including at the Effective Time, upon the termination of the Merger Agreement in accordance with its terms or upon entry into any amendment to the Merger Agreement which reduces the consideration payable to the shareholder or otherwise materially
and adversely impacts the shareholder. The foregoing description of the Voting Agreements does not purport to be complete and is qualified in its entirety by reference to the full text of the Voting Agreements, a form of which is attached as Exhibit
99.1 to this Current Report on Form
8-K
and is incorporated by reference herein.
Affiliate Agreements
Simultaneous with the execution of the Merger Agreement, UBSH and XBKS entered into Affiliate Agreements with each of the directors of XBKS
(collectively, the UBSH Affiliate Agreements), and XBKS and UBSH entered into substantially similar Affiliate Agreements with each of the directors of UBSH (collectively with the UBSH Affiliate Agreements, the Affiliate
Agreements).
Each shareholder party to an Affiliate Agreement agreed, among other things, to vote the shares of XBKS Common Stock or UBSH Common
Stock, as applicable, owned beneficially or of record by such shareholder, and over which such shareholder has the sole power to vote or direct the disposition, in favor of the Merger Agreement and against any alternative acquisition proposal, any
action, proposal, transaction or agreement which could reasonably be expected to result in a breach of any covenant, representation or warranty or any other obligation or agreement of XBKS under the Merger Agreement or of the shareholder under his
or her Affiliate Agreement and any other action, proposal, transaction or agreement that could reasonably be expected to impede, interfere with, delay, discourage, adversely affect or inhibit the timely consummation of the Merger, as well as certain
other restrictions with respect to the voting and transfer of such shareholders shares of XBKS Common Stock or UBSH Common Stock, as applicable. The shareholders have also agreed to customary
non-solicitation
covenants relating to alternative acquisition proposals.
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The Affiliate Agreements will terminate in certain circumstances, including at the Effective Time or upon the
termination of the Merger Agreement in accordance with its terms. The foregoing description of the Affiliate Agreements does not purport to be complete and is qualified in its entirety by reference to the full text of the Affiliate Agreements, forms
of which are attached as Exhibit 99.2 and Exhibit 99.3 to this Current Report on Form
8-K
and are incorporated by reference herein.
Forward-Looking Statements
Certain statements
made in this Form
8-K
may constitute forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Forward-looking statements are statements that include
projections, predictions, expectations, or beliefs about future events or results or otherwise are not statements of historical fact, are based on certain assumptions as of the time they are made, and are inherently subject to risks and
uncertainties, some of which cannot be predicted or quantified. Such statements are often characterized by the use of qualified words (and their derivatives) such as expect, believe, estimate, plan,
project, anticipate, intend, will, may, view, opportunity, potential, or words of similar meaning or other statements concerning opinions or judgment of
UBSH or XBKS or their management about future events. Such statements include statements as to the anticipated Effective Time of the Merger. Although each of UBSH and XBKS believes that its expectations with respect to forward-looking statements are
based upon reasonable assumptions within the bounds of its existing knowledge of its business and operations, there can be no assurance that actual results, performance, or achievements of UBSH or XBKS will not differ materially from any projected
future results, performance, or achievements expressed or implied by such forward-looking statements. Actual future results and trends may differ materially from historical results or those anticipated depending on a variety of factors, including
but not limited to: (1) the businesses of UBSH and XBKS may not be integrated successfully or such integration may be more difficult, time-consuming or costly than expected; (2) expected revenue synergies and cost savings from the Merger
may not be fully realized or realized within the expected time frame; (3) revenues following the Merger may be lower than expected; (4) customer and employee relationships and business operations may be disrupted by the Merger;
(5) the ability to obtain required regulatory and shareholder approvals, and the ability to complete the Merger on the expected timeframe may be more difficult, time-consuming or costly than expected; (6) changes in interest rates, general
economic conditions, tax rates, legislative/regulatory changes, monetary and fiscal policies of the U.S. government, including policies of the U.S. Treasury and the Board of Governors of the Federal Reserve System; the quality and composition of the
loan and securities portfolios; demand for loan products; deposit flows; competition; demand for financial services in the companies respective market areas; their implementation of new technologies; their ability to develop and maintain
secure and reliable electronic systems; and accounting principles, policies, and guidelines, and (7) other risk factors detailed from time to time in filings made by UBSH or XBKS with the SEC. Forward-looking statements speak only as of the
date they are made and UBSH and XBKS undertake no obligation to update or clarify these forward-looking statements, whether as a result of new information, future events or otherwise.
Additional Information About the Proposed Transaction and Where to Find It
In connection with the proposed Merger, UBSH will file with the SEC a registration statement on Form
S-4
to register
the shares of UBSH Common Stock to be issued to the shareholders of XBKS. The registration statement will include a joint proxy statement of UBSH and XBKS and a prospectus of UBSH. A definitive joint proxy statement/prospectus will be sent to the
shareholders of UBSH and XBKS seeking their approval of the proposed Merger and related matters. This Form
8-K
does not constitute an offer to sell or the solicitation of an offer to buy any securities or a
solicitation of any vote or approval. Before making any voting or investment decision, investors and shareholders of UBSH and XBKS are urged to read carefully the
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entire registration statement and joint proxy statement/prospectus when they become available, including any amendments thereto, because they will contain important information about the proposed
transaction. Free copies of these documents may be obtained as described below.
Investors and shareholders of both companies are urged to read the
registration statement on Form
S-4
and the joint proxy statement/prospectus included within the registration statement and any other relevant documents to be filed with the SEC in connection with the proposed
Merger because they will contain important information about UBSH, XBKS and the proposed Merger. Investors and shareholders of both companies are urged to review carefully and consider all public filings by UBSH and XBKS with the SEC, including but
not limited to their Annual Reports on Form
10-K,
their proxy statements, their Quarterly Reports on Form
10-Q,
and their Current Reports on Form
8-K.
Investors and shareholders may obtain free copies of these documents through the website maintained by the SEC at www.sec.gov. Free copies of the joint proxy statement/prospectus and other documents filed with
the SEC also may be obtained by directing a request by telephone or mail to Union Bankshares Corporation, 1051 East Cary Street, Suite 1200, Richmond, Virginia 23219, Attention: Investor Relations (telephone: (804)
633-5031),
or Xenith Bankshares, Inc., 901 E. Cary Street Richmond, Virginia, 23219, Attention: Thomas W. Osgood (telephone: (804)
433-2200),
or by accessing UBSHs
website at www.bankatunion.com under Investor Relations or XBKSs website at www.xenithbank.com under Investor Relations under About Us. The information on UBSHs and XBKSs websites is not, and
shall not be deemed to be, a part of this release or incorporated into other filings either company makes with the SEC.
UBSH and XBKS and their
respective directors and executive officers may be deemed to be participants in the solicitation of proxies from the shareholders of UBSH and/or XBKS in connection with the proposed Merger. Information about the directors and executive officers of
UBSH is set forth in the proxy statement for UBSHs 2017 annual meeting of shareholders filed with the SEC on March 21, 2017. Information about the directors and executive officers of XBKS is set forth in XBKSs Annual Report on Form
10-K,
as amended, filed with the SEC on May 1, 2017. Additional information regarding the interests of these participants and other persons who may be deemed participants in the proposed Merger may be obtained
by reading the joint proxy statement/prospectus regarding the proposed Merger when it becomes available. Free copies of these documents may be obtained as described above.