EXHIBIT 2
AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF MERGER
OF
LEWISTOWN TRUST COMPANY
WITH AND INTO
THE JUNIATA VALLEY BANK,
A WHOLLY OWNED SUBSIDIARY OF
JUNIATA VALLEY FINANCIAL CORP.
THIS AGREEMENT AND PLAN OF MERGER ("Agreement") made and entered into this
30TH day of December, 1997 by and among LEWISTOWN TRUST COMPANY ("Lewistown"), a
Pennsylvania trust company organized and existing under the laws of the
Commonwealth of Pennsylvania, having its headquarters at P. O. Box 270, 000 Xxxx
Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxx 00000; THE JUNIATA VALLEY BANK ("JVB"), a
Pennsylvania chartered banking institution, having its headquarters at Xxx 00,
Xxxxxx xxx Xxxx Xxxxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxx 00000; and JUNIATA VALLEY
FINANCIAL CORP. ("Juniata"), a Pennsylvania business corporation having its
corporate headquarters at Xxx 00, Xxxxxx xxx Xxxx Xxxxxxx, Xxxxxxxxxxx,
Xxxxxxxxxxxx 00000.
WHEREAS, the Boards of Directors of Lewistown, JVB, and Juniata deem it
advisable and in the reasonable best interest of their respective shareholders
that under and pursuant to the terms and conditions herein set forth, Lewistown
be merged with and into JVB (the "Merger"); and
WHEREAS, this Agreement has been approved by the Board of Directors of each
party hereto; and
WHEREAS, the parties hereto desire to adopt this Agreement as a Plan of
Merger and to consummate the Merger in accordance with the provisions of
Section 368(a)(1)(A) of the Internal Revenue Code of 1986, as amended.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, acting pursuant to resolutions of their respective Boards of
Directors, and in accordance with the provisions of the laws of the Commonwealth
of Pennsylvania, Lewistown, JVB, and Juniata hereby agree as follows:
ARTICLE I
THE MERGER
1.1 Lewistown shall be merged into JVB upon the terms and provisions of
this Agreement and under the Articles of Incorporation and By-Laws of JVB
(subject to future alteration, amendment, or repeal). The Merger shall be
pursuant to the provisions of, and with the effect provided in, the Pennsylvania
Banking Code of 1965 as amended and shall be expressly conditioned upon receipt
of all necessary regulatory and corporate approvals.
1.2 The name of the surviving banking institution shall be THE JUNIATA
VALLEY BANK. The Articles of Incorporation and the Bylaws of the surviving
banking institution shall be the Articles of Incorporation and the Bylaws of JVB
in effect immediately prior to the Merger.
1.3 The business of the surviving banking institution after the Effective
Date of the Merger shall be a Pennsylvania chartered banking institution which
shall be conducted by JVB at its main office as then located and at its legally
established branches including all branches and the main office of Lewistown
immediately prior to the Merger.
1.4 At the Effective Date of the Merger, the separate existence of
Lewistown shall cease and JVB, as the surviving entity, shall continue
unaffected and unimpaired by the Merger and shall be liable for all of the
liabilities of Lewistown existing at the Effective Date.
1.5 All assets, rights, privileges, immunities, powers, franchises and
interests of Lewistown in and to every type of property (real, personal and
mixed) and choses in action, as they exist as of the Effective Date, shall pass
and be transferred to and vest in JVB by virtue of the Merger on the Effective
Date without any deed, conveyance or other transfer; the separate existence of
Lewistown shall cease and the existence of JVB as the surviving Pennsylvania
chartered bank and as a Pennsylvania chartered banking institution organized
under the Pennsylvania Banking Code of 1965 shall continue unaffected and
unimpaired by the Merger; and JVB shall be deemed to be the same institution as
Lewistown and shall be subject to all of its duties and liabilities of every
kind and description.
JVB, upon the Merger and without any order or other action on the part of
any court or otherwise, shall possess, hold and enjoy all rights, privileges,
immunities, franchises and interests, both as a public nature and as a private
nature, in the same manner and to the same extent as such rights, privileges,
immunities, franchises and interests were possessed, held, or enjoyed by
Lewistown as of the Effective Date. All property, real, personal and mixed, and
all debts due on whatever account, including subscriptions to share and all
other choses in action, and all and every other interest, of or belonging to or
due to Lewistown, shall be taken and deemed to be transferred to and vested in
JVB without further act or deed. The title to any real estate, or any interest
therein, vested in Lewistown shall not revert or be in any way impaired by
reason of the Merger.
1.6 JVB shall be responsible and liable for all the liabilities and
obligations of Lewistown and any claim existing or action or proceeding pending
by or against Lewistown may be prosecuted as if the Merger had not taken place,
or JVB may be substituted in its place. Neither the rights of creditors nor any
liens upon the property of Lewistown shall be impaired by reason of the Merger.
1.7 The shares of capital stock of JVB issued and outstanding immediately
prior to the Effective Date shall at the Effective Date continue to be issued
and outstanding.
ARTICLE II
CONVERSION AND EXCHANGE OF LEWISTOWN'S COMMON STOCK
2.1 At the Effective Date of the Merger, by virtue of the Merger and
without any action on the part of any holder thereof:
(a) Each share of Lewistown's Common Stock issued and outstanding
immediately prior to the Effective Date of the Merger, except for (i)
Perfected Dissenting Shares (as defined in Section 2.4) and (ii) shares of
Lewistown's Common Stock held and beneficially owned by Juniata or any Juniata
subsidiary (other than shares of Lewistown's Common Stock held in a fiduciary
or similar capacity on behalf of others) which shall be canceled by virtue of
the Merger, shall automatically be converted into one (1) share (as adjusted
pursuant to Section 2.6 herein), (the "Conversion Factor") of common stock,
$1.00 par value, of Juniata ("Juniata Common Stock").
(b) Each share of Lewistown's Common Stock which, immediately prior to
the Effective Date of the Merger, was issued and held in the treasury of
Lewistown, if any, will be canceled and retired.
(c) No Perfected Dissenting Shares will be converted into Juniata Common
Stock under this Section 2.1, but such Perfected Dissenting Shares will be
subject to the provisions of Section 2.4.
(d) Each authorized but unissued share of Lewistown's Common Stock will
cease to exist.
(e) Each share of Juniata's Common Stock issued and outstanding shall
remain issued and outstanding.
2.2 Neither certificates nor scrip for fractional interests in Juniata's
Common Stock will be issued, but in lieu thereof each holder of shares of
Lewistown's Common Stock who would otherwise have been entitled to a fraction of
a share of Juniata's Common Stock will be paid an amount in cash equal to such
fraction multiplied by the market value per share of Juniata as of the close of
business on the fifth (5) day preceding the Effective Date of the Merger. For
purposes of this Agreement, "market value per share" shall mean with respect to
a calculation date the average of the closing sales price of Juniata's Common
Stock as reported by the Over The Counter ("OTC") Bulletin Board for the thirty
(30) consecutive trading days ending on and including the date as of which the
market value per share is to be calculated.
2.3 As soon as practicable after the Effective Date of the Merger, holders
of shares of Lewistown's Common Stock shall be furnished a form letter of
transmittal for the tender of their shares to an Exchange Agent appointed by
Juniata, to be exchanged for new certificates for the appropriate number of
shares of Juniata's Common Stock. Juniata shall be required to issue Juniata's
Common Stock only upon the actual surrender of Lewistown's shares and will
require an indemnity agreement or a bond from any Lewistown shareholder who is
unable to surrender his or her certificate by reason of loss, theft or
destruction of the certificate.
2.4 Each outstanding share of Lewistown's Common Stock, the holder of
which has timely filed a written notice of intention to demand appraisal for his
shares pursuant to the Pennsylvania Banking Code and Subchapter D of the
Pennsylvania Business Corporation Law of 1988 as amended (the "BCL") is herein
called a "Dissenting Share." Dissenting Shares, the holders of which have not
effectively withdrawn or lost (for failure to timely file a demand for appraisal
of their shares or otherwise) their dissenters' rights under the BCL ("Perfected
Dissenting Shares"), shall not be converted pursuant to Section 2.1 hereof, but
the holders thereof shall be entitled only to such rights as are granted by
Subchapter D of the BCL. Each holder of Dissenting Shares who becomes entitled
to payment for his Lewistown Common Stock pursuant to the provisions of
Subchapter D of the BCL shall receive payment therefor from Juniata but only
after the amount thereof shall have been agreed upon or finally determined
pursuant to such provisions.
2.5(a) As of the Effective Date of the Merger, Juniata will issue and will
deliver to the Exchange Agent certificates representing a sufficient number of
shares of Juniata's Common Stock issuable in the Merger and a sufficient amount
of cash in lieu of fractional shares payable in the Merger.
(b) Upon surrender for cancellation to the Exchange Agent of one or more
certificates for shares of Lewistown's Common Stock ("Old Certificates"),
accompanied by a duly executed letter of transmittal in proper form, the
Exchange Agent shall, promptly after the Effective Date of the Merger, deliver
to each holder of such surrendered Old Certificates new certificates
representing the appropriate number of shares of Juniata's Common Stock ("New
Certificates") together with checks for payment of cash in lieu of fractional
interests to be issued in respect of the Old Certificates.
(c) Until Old Certificates have been surrendered and exchanged as herein
provided for New Certificates, each outstanding Old Certificate shall be deemed,
for all corporate purposes of Juniata, to be the number of whole shares of
Juniata's Common Stock into which the number of shares of Lewistown's Common
Stock shown thereon have been converted. At the option of Juniata, no dividends
or other distributions which are declared on Juniata's Common Stock will be
paid to persons otherwise entitled to receive the same until the Old
Certificates have been surrendered in exchange for New Certificates in the
manner herein provided, but upon such surrender, such dividends or other
distributions, from and after the Effective Date of the Merger, will be paid to
such persons in accordance with the terms of such Juniata's Common Stock. In no
event shall the persons entitled to receive such dividends or other
distributions be entitled to receive interest on such dividends or other
distributions.
2.6 The Conversion Factor shall be subject to adjustment from time to time
as follows:
(a) Whenever, subsequent to the date hereof but prior to the Effective
Date of the Merger, (i) a record date occurs for the purpose of determining
the holders of Juniata's Common Stock entitled to receive a dividend declared
payable in shares of Juniata's Common Stock, (ii) Juniata subdivides the
outstanding shares
of Juniata's Common Stock, (iii) Juniata combines the outstanding shares of
Juniata's Common Stock into a smaller number of shares, or (iv) Juniata issues
by reclassification of its shares of Juniata's Common Stock any shares of
stock of Juniata (all shares so issued being included in the "Juniata Common
Stock" as used in this Section 2.6), the Conversion Factor shall be adjusted
so that each share of Lewistown's Common Stock shall under Section 2.1(a)
thereafter be convertible into and exchangeable for the number of shares of
Juniata's Common Stock which the shares of Lewistown's Common Stock would have
represented had such shares of Lewistown's Common Stock been converted into
and exchanged for shares of Juniata's Common Stock prior to the happening of
such event and such Juniata Common Stock had been entitled to the benefit of
the happening of such event.
ARTICLE III
BOARD OF DIRECTORS AND OFFICERS OF
JUNIATA AND JVB
3.1 On the Effective Date, the Board of Directors of Juniata shall consist
of the following:
(a) The 11 persons who are then members of the Board of Directors of
Juniata (the "Juniata Directors");
(b) The 9 persons who are then members of the Board of Directors of
Lewistown (the "Lewistown Directors"). On the Effective Date, in accordance
with Juniata's current classification of directors, Juniata shall appoint:
(1) Three (3) such Lewistown Directors as Class A Directors, to
continue in office until 2000;
(2) Three (3) such Lewistown Directors as Class B Directors, to
continue in office until 2001;
(3) Three (3) such Lewistown Directors as Class C Directors, to
continue in office until 1999.
3.2 From and after the Effective Date, the officers of Juniata shall be
those persons who were the officers and directors of Juniata provided, however,
that Xxxxxxx X. Xxxxxxxxx shall be appointed the President and Chief Operating
Officer of Juniata, A. Xxxxxx Xxxx shall be appointed Chief Executive Officer
and Chairman of the Board of Directors of Juniata, and Xxxxx X. Xxxxx shall be
appointed Executive Vice-President and Chief Financial Officer of Juniata. The
officers of Juniata shall also consist of such other officers as the Juniata
Board of Directors may appoint. Such officers shall hold office until such time
as their successors have been elected or appointed and have qualified unless
sooner removed, resigned, disqualified, or deceased. On the date hereof the
Board of Directors of Juniata shall enter into an Employment Agreement which
shall be conditioned upon consummation of the Merger and shall become effective
on the Effective Date with Xxxxxxx X. Xxxxxxxxx pursuant to which he shall
become President and Chief Operating Officer of Juniata and JVB. The Employment
Agreement shall be in the form attached hereto as Exhibit "A".
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3.3 On the Effective Date, Juniata shall appoint the then members of the
Board of Directors of Lewistown to the Board of Directors of JVB so that the
Board of Directors of JVB shall be and consist of those persons who were then
members of the Board of Directors of Lewistown and those persons who are then
members of the Board of Directors of JVB. From and after the Effective Date,
the officers of JVB shall be and consist of those persons who were then officers
of JVB provided that Xxxxxxx X. Xxxxxxxxx shall be appointed President and
Chief Operating Officer of JVB, A. Xxxxxx Xxxx shall be appointed Chief
Executive Officer and Chairman of the Board of Directors of JVB, and Xxxxx X.
Xxxxx shall be appointed Executive Vice-President and Chief Financial Officer of
JVB. Such officers shall hold office until such time as their successors have
been duly elected or appointed and have qualified, unless sooner removed,
resigned, disqualified, or deceased.
3.4 On the Effective Date, the Juniata Directors and the Lewistown
Directors shall each appoint two (2) vice-chairman of the Boards of Directors of
Juniata and JVB.
3.5 On the Effective Date, the Bylaws of Juniata and JVB shall be amended
to create the offices herein appointed.
3.6 The Juniata Board of Directors shall nominate and support for
reelection each former Lewistown Director whose term as a director of Juniata
and JVB expires on or before the 2001 annual meeting of the shareholders of
Juniata.
ARTICLE IV
AMENDMENT AND WAIVER
4.1 This Agreement may be amended by the parties hereto, by action taken
by or on behalf of their respective Boards of Directors, at any time before or
after approval of the Merger by the shareholders of Lewistown and Juniata;
provided, however, that after such approval by the shareholders of Lewistown and
Juniata no such amendment, without further shareholder approval, shall reduce
the amount or change the form of the consideration to be delivered to the
shareholders of Lewistown as contemplated by this Agreement or alter or change
any of the terms or conditions of this Agreement if such alteration or change
would materially adversely affect the shareholders of Lewistown and Juniata.
This Agreement may not be amended except by an instrument in writing signed on
behalf of each of the parties hereto.
4.2 Any of the terms or conditions of this Agreement may be waived at any
time by whichever of the parties is, or the shareholders of which are, entitled
to the benefit thereof, in the case of a party, by action taken by the Board of
Directors of such party. The failure of any party at any time or times to
require performance of any provision hereof shall in no manner affect such
party's right at a later time to enforce the same. No waiver by any party of
any condition, or of the breach of any term, covenant, representation or
warranty contained in this Agreement, whether by conduct or otherwise, in any
one or more instances shall be deemed to be or construed as a further or
continuing waiver of any such condition or breach or waiver of any other
condition or of the breach of any other term, covenant, representation or
warranty.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.1 Representations and Warranties of Lewistown. Lewistown represents and
-------------------------------------------
warrants to Juniata that:
(a) Lewistown is a trust company that is duly organized, validly existing
and in good standing under the laws of the Commonwealth of Pennsylvania.
Lewistown is an "insured depository institution" as defined in the Federal
Deposit Insurance Act, as amended ("FDIA").
(b) The copies of the Articles of Incorporation and the Bylaws of
Lewistown delivered to Juniata and which are included in Schedule I attached
hereto and made a part hereof by reference thereto are complete and accurate
copies thereof as in effect on the date hereof. The minute books of Lewistown
which have been made available for inspection by Juniata contain a complete
and accurate record of all meetings of Lewistown.
(c) Lewistown (i) has corporate power to own its properties and to conduct
its business as currently conducted, (ii) has substantially complied with, and
is not in default in any material respect under, any laws, regulations,
ordinances, orders or decrees applicable to the conduct of its business and
the ownership of its properties, including regulatory minimum capital
requirements, the non-compliance with which or the default under which in the
aggregate would materially adversely affect the business of Lewistown, (iii)
has not failed to file with the proper federal, state, local or other
authorities any material report or other document required to be so filed, and
(iv) has all approvals, authorizations, consents, licenses, clearances and
orders of, and has currently effective all registrations with, all
governmental and regulatory authorities, which are necessary to the business
or operations of Lewistown, the non-receipt of which would in the aggregate
materially adversely affect the business of Lewistown.
(d) The authorized capital stock of Lewistown consists of 1,200,000 shares
of Lewistown Common Stock, par value $1.25 per share, of which 937,024 shares
of Common Stock were validly authorized, issued and outstanding, fully paid
and nonassessable as of December 30, 1997. As of the date hereof there are
outstanding no subscriptions, options, warrants, calls or rights or other
agreements or commitments of any kind obligating Lewistown to issue or dispose
of any securities of Lewistown or securities of Lewistown convertible into any
shares of Lewistown's Common Stock. From December 31, 1996 to the date hereof,
no dividends or other distributions (including, without limitation, any stock
dividend or distribution) have been declared, set aside or paid to the holders
of Lewistown Common Stock except those permitted under Section 6.2(a)(3)
below.
(e) Except as disclosed in Schedule I, Lewistown does not own, directly or
indirectly, any equity interest in any bank, corporation, general partnership,
limited partnership or other equity, except in a fiduciary capacity.
(f)(1) Lewistown has delivered to Juniata a copy of the following
financial statements, each of which (including any related notes and
schedules) is included in Schedule I and presents fairly the financial
condition and results of operations of Lewistown, at the dates and for the
periods covered by such statements in accordance with generally accepted
accounting principles consistently applied throughout the periods covered by
such statements (It being understood that Lewistown's financial statements,
except the June 30, 1996 Balance Sheet, are not audited and are not prepared
with related notes but reflect all adjustments which are, in the opinion of
Lewistown, necessary for a fair presentation of such financial statements):
(A) The June 30, 1996 Balance Sheet (the "Lewistown June 30, 1996
Balance Sheet") prepared and audited by KPMG Peat Marwick;
(B) Balance Sheet (the "Lewistown 1996 Balance Sheet"), Statement
of Income, Statement of Stockholders' Equity and Statement of Cash Flows at
December 31, 1996 and for the twelve months then ended, prepared by
Lewistown;
(C) Balance Sheets, Statements of Income, Statements of
Stockholders' Equity and Statements of Cash Flows at December 31, 1995 and
1994, and for the years then ended, prepared by Lewistown;
(D) Interim Balance Sheets (the "Lewistown's September 31, 1997
Balance Sheet"), Statements of Income, Statements of Stockholders' Equity
and Statements of Cash Flows at September 30,1997, and for the nine months
then ended.
(2) Lewistown has provided Juniata with copies of all financial
statements, proxy statements, reports and other documents issued to its
shareholders after December 31, 1996 which are included in Schedule I and will
provide Juniata with copies of such statements, reports, and documents issued
after the date hereof, but on or prior to the Effective Date, and all reports
and other documents filed by it with any federal or state authority during
such period, and Lewistown shall make available for inspection by officials or
representatives of Juniata all financial statements prepared by Lewistown.
(g)(1) Lewistown has delivered to Juniata copies of:
(A) its Annual Report to Shareholders for the years ended
December 31, 1996 and 1995;
(B) Lewistown's Annual Report to the Pennsylvania Department of
Banking, and the FDIC for the years ended December 31, 1996 and 1995;
(C) all other periodic reports filed by Lewistown with the
Pennsylvania Department of Banking and the FDIC; and
(D) all proxy statements and other written materials furnished to
Lewistown's shareholders since January 1, 1995;
true and correct copies of which are included in Schedule I.
(2) No statement contained in any of the documents referred to in
Section 5.1(g)(1), or to be contained in any financial statement, proxy
statement, report, document or other written materials provided or to be
provided to Juniata as required by Section 5.1(f), as of the date of such
document or other materials, contained, or as to documents or other materials
to be delivered after the date hereof will contain, any untrue statement of
material fact, or, at the date thereof, omitted or will omit to state a
material fact necessary in order to make the statements contained therein, in
light of the circumstances under which such statements are or will be made,
not misleading; provided, however, that information as of a later date shall
be deemed to modify information as of any earlier date.
(h)(1) Lewistown has timely filed all federal, state, county and local
returns in respect of taxes, including, without limitation, estimated tax
returns, employer's withholding tax returns, other withholding tax returns and
Federal Unemployment Tax Act returns, and all other reports or other
information required or requested to be filed by it, and each such return,
report or other information is complete and accurate in all material respects.
Lewistown has paid the amounts shown as owing on such returns (collectively,
"Taxes"). No waivers of statutes of limitations, and no agreement relating to
assessment or collection, are in effect in respect of any Taxes. Except as
disclosed in Schedule I, there are no claims pending against Lewistown for the
alleged deficiency in the payment of any Taxes, and Lewistown does not know of
any pending or threatened audits, investigations or claims for unpaid Taxes or
relating to any liability in respect of Taxes.
(2) Lewistown has heretofore delivered to Juniata copies of its
United States federal and Pennsylvania tax returns for the fiscal years ended
December 31, 1995 and 1996, true and correct copies of which are included in
Schedule I.
(3) To the extent required by generally accepted accounting
principles, the provision for current taxes payable reflected in "Other
Liabilities" in the Lewistown's 1996 Balance Sheet, as of the date hereof and
as of the Effective Date, is and will be adequate to cover (A) all or
substantially all accrued and unpaid taxes of Lewistown, whether or not
disputed, for the period ended December 31, 1996, and for all prior periods,
and (B) all or substantially all Taxes that may become due and payable by
Lewistown in future periods (i) in respect of transactions, sales or services
occurring or performed on or prior to December 31, 1996, which by virtue of
tax or accounting treatment will not be included in income until subsequent to
such date, or (ii) in respect of deductions, costs or other allowances taken
for federal income tax purposes which Lewistown has reason to believe are
likely to be disallowed by the Internal Revenue Service if audited by such
Service. The provision for applicable taxes stated on the books of Lewistown
as of the date hereof and as of the Effective Date, is and will be adequate to
cover (A) all accrued and unpaid federal, state, county and local taxes of
Lewistown, whether or not disputed, for the period ended on the date hereof or
on the Effective Date, as the case may be, and for all prior periods, and (B)
all federal, state, county and local Taxes that may become due and payable by
Lewistown in future periods (i) in respect of such transactions, sales or
services occurring or performed on or prior to the date hereof or the
Effective Date, as the case may be, which by virtue of tax or accounting
treatment will not be included in income until subsequent to such dates, or
(ii) in respect of deductions, costs or other allowances taken for federal
income tax purposes which Lewistown has reason to believe are likely to be
disallowed by the Internal Revenue Service if audited by such Service.
(4) No consent has been filed relating to Lewistown pursuant to
Section 341(f) of the Internal Revenue Code of 1986, as amended (the "Code").
(i) Since September 30,1997, (1) there has been no material adverse
change in the business or financial condition of Lewistown, and (2) except as
set forth in Schedule I, no event described in Section 6.2(a)has occurred.
(j)(1) Except as disclosed in Schedule I, Lewistown has good and
marketable title, free and clear of all liens and encumbrances, and the right
of possession subject to existing leaseholds, to all real properties and good
title to all other property and assets, tangible and intangible, reflected in
Lewistown's 1996 Balance Sheet or purported to have been acquired by it since
the date thereof (except property held as lessee under leases and disclosed in
writing prior to the date hereof and except real or personal property sold or
otherwise disposed of since December 31, 1996, in the Ordinary Course of
Business (as defined in Section 6.2(a)(5) hereof)), except liens for taxes or
assessments not delinquent, pledges to secure deposits, repurchase agreements
in the Ordinary Course of Business and such other liens and encumbrances and
imperfections of title as do not materially affect the value of such property
or as reflected in Lewistown's 1996 Balance Sheet or as currently shown on the
books and records of it and which do not interfere with or impair its present
and continued use. All real properties owned or leased by Lewistown which are
material to the business, operations or financial condition of Lewistown are
in substantially good operating condition and repair (ordinary wear and tear
excepted).
(2) All properties held by Lewistown under leases are held by it
under valid, binding and enforceable leases (subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and subject,
as to enforceability, to general principles of equity), with such exceptions
as are not material and do not interfere with the conduct of its business, as
the case may be, and it enjoys quiet and peaceful possession of such leased
properties. Lewistown is not in default in any material respect under any
material lease, agreement or obligation regarding its properties to which it
is a party or by which it is bound.
(k) Except as specifically disclosed in Schedule I, and other than loans
in the Ordinary Course of Business, time deposits and leases of less than two
years duration on which less than $5,000 in annual rental is payable,
Lewistown is not a party to or bound by any contract or other agreement made
in the Ordinary Course of Business which involves aggregate future payments by
it of more than $25,000 and which is made for a fixed period expiring more
than one year from the date hereof, and Lewistown is not a party to or bound
by any agreement not made in the Ordinary Course of Business which is to be
performed at or after the date hereof. Each of the contracts and agreements
disclosed in Schedule I pursuant to this Section 5.1(k) are valid, binding and
enforceable (subject to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally and subject, as to enforceability, to
general principles of equity) and no breach or default (and no condition
which, with notice or passage of time, could become a breach or default)
exists as to Lewistown with respect thereto, except such as in the aggregate
are not material to the business or financial condition of Lewistown.
(l) Except as specifically disclosed in Schedule I, as of
September 30,1997, there are no commercial, commercial real estate or
residential real estate loans of Lewistown in excess of $25,000 that have been
classified by any financial institution examiner as "Other Loans Especially
Mentioned," "Special Mention," "Substandard," "Doubtful" or "Loss" or
internally classified in a similar or comparable category. Except as
specifically disclosed in Schedule I, as of September 30, 1997, there are no
consumer loans that are delinquent more than thirty (30) days as to payment of
principal and interest. Except as specifically disclosed in Schedule I, as of
September 30, 1997, the reserve for loan losses in Lewistown's September 30,
1997 Balance Sheet is adequate under the requirements of generally accepted
accounting principles and standard banking practice to provide for possible
losses on outstanding loans, net of recoveries. Except as disclosed in
Schedule I, there are no loans or loan commitments outstanding to executive
officers or directors of Lewistown, including their immediate families and
entities with which they are associated. All such loans and commitments to
loan were made on substantially the same terms, including interest rates and
collateral, as those prevailing at the time for comparable transactions with
other persons and do not involve more than the normal risk of collectibility
or present other unfavorable features and, except as disclosed in Schedule I,
none of such loans and commitments to related parties disclosed in said
Audited Financial Statements or in writing to Juniata are delinquent in
payment of principal or interest.
(m) Except for pledges to secure public and trust deposits, repurchase
agreements in the Ordinary Course of Business, and other pledges required by
law, none of the
investments reflected in Lewistown's September 30, 1997 Balance Sheet
under the heading "Investment Securities," and none of the investments
made since September 30, 1997, is subject to any restriction, whether
contractual or statutory, which materially impairs the ability of
Lewistown freely to dispose of such investment at any time.
(n) Except as otherwise identified and disclosed in Schedule I, Lewistown
has no pension, retirement, stock purchase, stock bonus, savings, or profit
sharing plan, any deferred compensation, consultant, bonus, life insurance,
death or survivor benefit health insurance, sickness, disability, medical,
surgical, hospital, severance, layoff, or vacation plan or group insurance
contract, or any other incentive, welfare, or employee benefit plan or
arrangement ("Benefit Plans"). With respect to each qualified retirement plan
and other Benefit Plans, included in Schedule I is an accurate and complete
copy of (a) the most recent plan documents, (b) the most recent annual report
filed with the United States Department of Labor and the Internal Revenue
Service, (c) the most recent financial and actuarial reports, (d) the most
recently issued Internal Revenue Service rulings or determination letters, and
(e) all notices to the Pension Benefit Guaranty Corporation of "Reportable
Events" as defined in the Employee Retirement Income Security Act of 1974
("ERISA"). As of January 1, 1997, all accrued contributions and other payments
to be made under each qualified retirement plan for such purpose have been set
aside therefor. Except as specifically disclosed and identified in Schedule I,
Lewistown has no contracts or other agreements with any member of management
or any management or consultation agreement not terminable at will by it
without liability, and no such contract or agreement has been requested by or
is under discussion by management with any group of employees, any member of
management or any other person.
(o) Except as specifically disclosed in Schedule I, there are no actions,
suits, investigations or proceedings instituted, pending or, to the knowledge
of Lewistown, threatened against Lewistown before any court, any arbitrator of
any kind or any government agency (including any bank regulatory authority),
and Lewistown is not subject to any potential adverse claim, the outcome of
which could involve the payment by Lewistown of an amount in excess of $25,000
or, which could materially affect Lewistown or its business or property or the
transactions contemplated hereby. Lewistown has no knowledge of any pending or
threatened claims or charges under the Community Reinvestment Act or before
the Equal Employment Opportunity Commission, the Office of Federal Contract
Compliance, any Human Relations Commission or any other federal, state or
local government agency.
(p)(1) The execution and delivery of this Agreement has been duly
authorized by the Board of Directors of Lewistown and, when the Merger has
been duly approved by the affirmative vote of the shareholders of Lewistown
owning at least two-thirds (2/3) of its capital stock outstanding at a meeting
of shareholders duly called and held in accordance with the provisions of
Pennsylvania law, this Agreement shall be duly and validly authorized by all
necessary action on the part of Lewistown.
(2) This Agreement has been duly executed and delivered by
Lewistown and (assuming due execution and delivery by Juniata) constitutes,
and, upon its execution and delivery shall constitute, a valid, binding and
enforceable obligation of Lewistown, subject to (i) bankruptcy, insolvency,
moratorium, reorganization, conservatorship, receivership or other similar
laws from time to time in effect relating to or affecting the enforcement of
creditors' rights generally or the rights of creditors of Pennsylvania state
chartered banking institutions, (ii) laws relating to the safety and soundness
of depository institutions and their holding companies, and (iii) general
principles of equity, and except that the availability of equitable remedies
or injunctive relief is within the discretion of the appropriate court.
(3) The execution and delivery by Lewistown of this Agreement and
the consummation of the transactions herein contemplated do not violate any
provision of the Articles of Incorporation or Bylaws of Lewistown, any
provisions of federal or state law or any governmental rule or regulation
assuming the appropriate filing of the Articles of Merger with the
Pennsylvania Department of Banking, the receipt of the Government Approvals,
the receipt of the requisite Lewistown shareholder approval referred to in
Section 5.1(p)(1), and the accuracy of the representations of Juniata set
forth in Sections 5.2(f) and (g)), and do not require any consent of any
person under, conflict with or result in a breach of or accelerate the
performance required by any of the terms of, any material debt instrument,
lease, license, covenant, agreement or
understanding to which Lewistown is a party or by which it is bound or any
order, ruling, decree, judgment, arbitration award or stipulation to which it
is subject, or constitute a default thereunder or result in the creation of
any lien, claim, security interest, encumbrance, charge, restriction or right
of any third party of any kind whatsoever upon any of its properties or
assets.
(q) Except for RP Financial, LC., which will be entitled to a fee to be
paid by Lewistown for rendering a fairness opinion and for other services
related to the Merger, no broker, agent, finder, consultant or other party
(other than legal and accounting advisors) has been retained by Lewistown or
is entitled to be paid based upon any agreements, arrangements or
understandings made by Lewistown in connection with any of the transactions
contemplated by this Agreement.
(r) Lewistown is, and continuously since at least January 1, 1996 has
been, insured with reputable insurers against all risks normally insured
against by financial institutions, and all of the insurance policies or bonds
maintained by it are in full force and effect. Lewistown is not in default
thereunder and all material claims thereunder have been filed in due and
timely fashion.
(s) Lewistown is not in violation of, and has not received notice of a
potential or actual violation of, any applicable federal, state or local laws,
statutes, rules, regulations or ordinances relating to public health, safety
or the environment, including, without limitation, relating to releases,
discharges, emissions or disposals to air, water, land or ground water, to the
withdrawal or use of ground water, to the use, handling or disposal of
polychlorinated biphenyls (PCB's), asbestos or urea formaldehyde, to the
treatment, storage, disposal or management of hazardous substances (including,
without limitation, petroleum, crude oil or any fraction thereof, or other
hydrocarbons), pollutants or contaminants, to exposure to toxic, hazardous or
other controlled, prohibited or regulated substances which violation could
have a material adverse effect on the business, properties or financial
condition of Lewistown.
To the best knowledge of Lewistown, improvements on any real estate owned
or leased by Lewistown do not contain friable asbestos or substances containing
asbestos and deemed hazardous by any federal, state or local laws, regulations
or orders respecting such materials. Lewistown does not know of any liability or
class of liability of Lewistown under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601 et
seq.), or the Resource Conservation and Recovery Act of 1976, as amended (42
U.S.C. Section 6901 et seq.).
(t) The information pertaining to Lewistown, which has been or will be
furnished to Juniata by or on behalf of Lewistown for inclusion in the Juniata
Registration Statement, the Prospectus or the Proxy Statement (each as
hereinafter defined in Section 7.1 hereof), or in the applications to be filed
to obtain the Government Approvals (the "Applications"), will contain no
untrue statement of any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they are made, not misleading; provided, however, that information
as of a later date shall be deemed to modify the information as of an earlier
date. All financial statements of Lewistown included in the Prospectus or the
Proxy Statement will present fairly the consolidated financial condition and
results of operations of Lewistown at the dates and for the periods covered by
such statements in accordance with generally accepted accounting principles
consistently applied throughout the periods covered by such statements.
Lewistown shall promptly advise Juniata in writing if prior to the Effective
Date it shall obtain knowledge of any facts that would make it necessary to
amend the Juniata Registration Statement, the Proxy Statement or any
Application, or to supplement the Prospectus, in order to make the statements
therein not misleading or to comply with applicable law.
(u) No representation or warranty by Lewistown and no statement by
Lewiston in any certificate, agreement, schedule or other document furnished
in connection with the transactions contemplated by this Agreement, shall
contain any untrue statement of a material fact or omit to state any material
fact necessary to make such representation, warranty or statement not
misleading to Juniata; provided, however, that information as of a later date
shall be deemed to modify information as of an earlier date.
5.2 Representations, Warranties and Covenants of Juniata. Juniata, for
-----------------------------------------------------
itself and on behalf of JVB, represents and warrants to Lewistown that:
(a) Juniata is a corporation duly incorporated, validly existing and in
good standing under the Pennsylvania Business Corporation Law (BCL), and is a
registered bank holding company under the Bank Holding Company Act of 1956 as
amended (the "BHC Act"). Juniata has corporate power to own its properties and
to conduct its business as currently conducted, and Juniata has corporate
power to enter into this Agreement and to carry out all of the terms and
provisions hereof to be carried out by it, subject to receipt of Government
Approvals. As of the date hereof, the authorized capital stock of Juniata
consists of 5,000,000 shares of Juniata Common Stock, $1.00 par value, of
which 1,385,491 shares are validly authorized, issued and outstanding, fully
paid and nonassessable, and 14,898 shares are held as treasury shares, and
500,000 shares of preferred stock of which no shares have been issued. The
outstanding Juniata Common Stock has been duly and validly registered pursuant
to Section 12(g) of the 1934 Act, which registration is in full force and
effect, and is quoted in the OTC Over the Counter Bulletin Board Service. As
of the date hereof, there are outstanding no subscriptions, options, warrants,
calls or rights or other agreements or commitments of any kind obligating
Juniata to issue or dispose of any securities of Juniata or securities of
Juniata convertible into any shares of Juniata Common Stock or preferred
stock, other than the Juniata Employee Stock Purchase Plan.
(b) Juniata owns 100% of the issued and outstanding shares of JVB free and
clear of any liens, claims, security interests, encumbrances, charges,
restrictions, or rights of third parties of any kind whatsoever.
(c) JVB is a Pennsylvania state chartered banking institution that is duly
organized, validly existing, and in good standing under the laws of the
Commonwealth of Pennsylvania. JVB is an "Insured Depository Institution" as
defined in the Federal Deposit Insurance Act, as amended.
(d) The copies of the Articles of Incorporation and By-Laws of Juniata and
JVB heretofore delivered to Lewistown and which are included in Schedule II
attached hereto and made a part hereof and incorporated herein by reference
thereto are complete and accurate copies thereof as in effect on the date
hereof. The minute books of Juniata and JVB which have been made available for
inspection by Lewistown contain a complete and accurate record of all meetings
of said corporations.
(e) Juniata and JVB (i) have corporate power to own their respective
properties and to conduct their respective businesses as currently conducted,
(ii) have substantially complied with, and are not in default in any material
respect under, any laws, regulations, ordinances, orders or decrees applicable
to the conduct of their businesses and the ownership of their respective
properties, the non-compliance with which or the default under which in the
aggregate would materially adversely affect their businesses on a consolidated
basis, (iii) have not failed to file with the proper federal, state, local or
other authorities any material report or other document required to be so
filed, and (iv) have all approvals, authorizations, consents, licenses,
clearances and orders of, and have currently effective all registrations with,
all governmental and regulatory authorities, which are necessary to the
business or operations of Juniata and JVB as they are now being conducted.
(f) Except as disclosed in Schedule II and except for JVB, neither Juniata
nor JVB owns, directly or indirectly, any equity interest in any bank,
corporation, general partnership, limited partnership, or other equity, except
in a fiduciary capacity.
(g)(1) Juniata has delivered to Lewistown a copy of the following
consolidated financial statements, each of which (including any related notes
and schedules) is included in Schedule II and presents fairly the consolidated
financial condition and results of operations of Juniata and JVB at the dates
and for the periods covered by such statements in accordance with generally
accepted accounting principles consistently applied throughout the periods
covered by such statements (it being understood that Juniata's interim
financial statements are not audited and are not prepared with related notes
but reflect all adjustments which are, in the opinion of Juniata, necessary
for a fair presentation of such financial statements):
(A) Consolidated Balance Sheet (the "Juniata 1996 Balance
Sheet"), Consolidated Statement of Income, Consolidated Statement of
Stockholders' Equity and Consolidated Statement of Cash Flows, together
with the notes thereto, at December 31, 1996, and for the year then ended,
audited by Xxxxx and Company, Inc.; and
(B) Consolidated Balance Sheets, Consolidated Statements of
Income, Consolidated Statements of Stockholders' Equity, and Consolidated
Statements of Cash Flows, together with the notes thereto, at December 31,
1995 and 1994 and for the years then ended, audited by Xxxxx and Company,
Inc.
(C) Consolidated Balance Sheets (the "Juniata September 30, 1997
Balance Sheet"), Consolidated Statements of Income, Consolidated Statements
of Stockholders' Equity, and Consolidated Statements of Cash Flows, at
September 30, 1997 and for the six months then ended.
(2) Juniata has delivered to Lewistown a copy of consolidating
balance sheets, consolidating statements of income, consolidating statements
of stockholders' equity, and consolidating statements of cash flows (the
"Consolidating Statements") for Juniata and JVB as of December 31, 1996 and
1995 and for the 12-month periods then ending, and such interim statements as
of September 30, 1997 and for the nine (9) months then ending, which are
included in Schedule II, each of which presents fairly the separate financial
condition and results of operations of Juniata and JVB at the dates and for
the periods covered by such statements.
(3) Juniata has provided Lewistown with copies of all financial
statements, proxy statements, reports and other documents issued to its
shareholders after December 31, 1996, and will provide Juniata with copies of
such statements, reports, and documents issued after the date hereof and on or
prior to the Effective Date. Juniata has delivered to Lewistown copies of:
(a) its annual report to shareholders for the years ending
December 31, 1996 and 1995;
(b) its annual report to the Securities and Exchange
Commission (the "SEC") on Form 10-K for the years ending December 31, 1996
and 1995;
(c) JVB's annual report to Pennsylvania Department of
Banking and the FDIC for the years ending December 31, 1996 and 1995;
(d) all other periodic reports filed by Juniata with the
SEC (including all quarterly reports on Form 10-Q and all current reports
on Forms 8-K, the Federal Reserve Board, the Pennsylvania Department of
Banking and the FDIC since January 1, 1995);
(e) all proxy statements and other written materials
furnished to Juniata shareholders since January 1, 1995.
True and correct copies of which are included in Schedule II. No statement
contained in any of such documents, or to be contained in any financial
statement, proxy statement, report, document or other written materials to be
provided to Lewistown as required above, as of the date of such document or
other materials, contained, or as to documents or other materials to be
delivered after the date hereof will contain, any untrue statement of material
fact, or, at the date thereof, omitted or will omit to state a material fact
necessary in order to make the statements contained therein, in light of the
circumstances under which such statements are or will be made, not misleading;
provided, however, that information as of a later date shall be deemed to
modify information as of any earlier date.
(h) Except as specifically disclosed in Schedule II and other than loans
by JVB in the Ordinary Course of Business, time deposits and leases of less
than two years' duration on which less than $25,000 in annual rental is
payable, neither Juniata nor JVB is a party to or bound by any contract or
other agreement made in the Ordinary Course of Business which involves
aggregate future payments by it of more than $100,000 and
which is made for a fixed period expiring more than one year from the date
hereof, and neither Juniata nor JVB is a party to or bound by any agreement
not made in the Ordinary Course of Business which is to be performed at or
after the date hereof. Each of the contracts and agreements disclosed in
Schedule II pursuant to this Section 5.2(h) are valid, binding and enforceable
(subject to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and subject, as to enforceability, to general
principles of equity) and no breach or default (and no condition which, with
notice or passage of time, could become a breach or default) exists with
respect thereto, except such as in the aggregate are not material to the
business or financial condition of Juniata and JVB taken as a whole.
(i) Except as specifically disclosed in Schedule II, as of September 30,
1997, there are no commercial, commercial real estate or residential real
estate loans of Juniata or JVB in excess of $25,000 that have been classified
by any financial institution examiner as "Other Loans Especially Mentioned,"
"Special Mention," "Substandard," "Doubtful" or "Loss" or internally
classified in a similar or comparable category. Except as specifically
disclosed in Schedule II, as of December 31, 1996, there are no consumer loans
that are delinquent more than thirty (30) days as to payment of principal and
interest. Except as specifically disclosed in Schedule II, as of December 31,
1996 the reserve for loan losses in the Juniata 1996 Balance Sheet is adequate
under the requirements of generally accepted accounting principles and
standard banking practice to provide for possible losses on outstanding loans,
net of recoveries. Except as disclosed in the notes to the Audited
Consolidated Financial Statements for the year ended December 31, 1996, or as
disclosed in Schedule II, there are no loans or loan commitments outstanding
to executive officers or directors of Juniata or JVB, including their
immediate families and entities with which they are associated. All such loans
and commitments to loan were made on substantially the same terms, including
interest rates and collateral, as those prevailing at the time for comparable
transactions with other persons and do not involve more than the normal risk
of collectibility or present other unfavorable features and, except as
disclosed in Schedule II, none of such loans and commitments to related
parties disclosed in said Audited Consolidated Financial Statements or in
writing to Lewistown are delinquent in payment of principal or interest.
(j) Except for (i) Juniata's Defined Benefit Pension Plan which covers
eligible employees of Juniata and JVB, and (ii) as otherwise identified and
disclosed in Schedule II, neither Juniata nor JVB has any pension, retirement,
stock purchase, stock bonus, savings, or profit sharing plan, any deferred
compensation, consultant, bonus, life insurance, death or survivor benefit
health insurance, sickness, disability, medical, surgical, hospital,
severance, layoff, or vacation plan or group insurance contract, or any other
incentive, welfare, or employee benefit plan or arrangement ("Benefit Plans").
With respect to each qualified retirement plan and other Benefit Plans,
including but not limited to the Defined Benefit Pension Plan, included in
Schedule II is an accurate and complete copy of (a) the most recent plan
documents, (b) the most recent annual report filed with the United States
Department of Labor and the Internal Revenue Service, (c) the most recent
financial and actuarial reports, (d) the most recently issued Internal Revenue
Service rulings or determination letters, and (e) all notices to the Pension
Benefit Guaranty Corporation of "Reportable Events" as defined in the Employee
Retirement Income Security Act of 1974 ("ERISA"). As of January 1, 1997, all
accrued contributions and other payments to be made under the Defined Benefit
Group Pension Plan have been made or reserves adequate for such purpose have
been set aside therefor. As of the date hereof, there was no unfunded
liability and no funding deficiency existing with regard to the Defined
Benefit Pension Plan. Neither Juniata nor JVB has any union or collective
bargaining agreements, any contracts or other agreements with any labor
organization or, except as specifically disclosed in Schedule II, any
contracts or other agreements with any member of management or any management
or consultation agreement not terminable at will by it without liability, and
no such contract or agreement has been requested by or is under discussion by
management with any group of employees, any member of management or any other
person.
(k) Except as disclosed in Schedule II, since September 30, 1997, (i)
neither Juniata nor JVB has incurred any material liability or obligation,
accrued or contingent and whether due or to become due, other than as a result
of operations in the ordinary course of business, and (ii) there has been no
material adverse change in the business or financial condition of Juniata and
JVB on a consolidated basis.
(l) Except as disclosed in Schedule II, neither Juniata nor JVB is engaged
in, or a party to, or threatened with, any legal action or other proceeding
before any court, any arbitrator of any kind or any government agency
(including any bank regulatory authority), and neither Juniata nor JVB is
subject to any potential adverse claim, the outcome of which could involve the
payment by Juniata or JVB of an amount in excess of $50,000 or which could
materially affect Juniata and JVB on a consolidated basis or its business or
property or the transactions contemplated hereby. Juniata has no knowledge of
any pending or threatened claims or charges under the Community Reinvestment
Act or before the Equal Employment Opportunity Commission, the Office of
Federal Contract Compliance, any Human Relations Commission or any other
federal, state or local government agency. There is no labor strike, dispute,
slow-down or stoppage pending or, to the best knowledge of Juniata, threatened
against Juniata or JVB. There are no outstanding orders, rulings, decrees,
judgments or stipulations, to which Juniata is a party or by which it is
bound, by or with any court, arbitrator, or government agency, involving an
amount in excess of $50,000.
(m)(1) The execution and delivery of this Agreement has been duly and
validly authorized by the Boards of Directors of Juniata and JVB, and the
Merger and this Agreement have been duly and validly authorized by all
necessary corporate action on the part of Juniata and JVB (subject to approval
of Juniata's shareholders in accordance with Juniata's Articles of
Incorporation.
(2) This Agreement has been duly executed and delivered by
Juniata and JVB and (assuming due execution and delivery by Lewistown)
constitutes, and, upon its execution and delivery this Agreement shall
constitute a valid, binding and enforceable obligation of Juniata and JVB,
subject to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally, and subject, as to enforceability, to general
principles of equity.
(3) The execution and delivery of this Agreement by Juniata and
JVB and the consummation of the transactions herein contemplated (A) do not
violate any provisions of the Articles of Incorporation or Bylaws of Juniata
or JVB, any provisions of federal or state law or any governmental rule or
regulation (assuming (i) the appropriate filing of the Articles of Merger with
the Pennsylvania Department of Banking, (ii) receipt of the Government
Approvals, (iii) the due registration of the offering of the Juniata Common
Stock under the Securities Act of 1933, as amended (the "1933 Act"), (iv) the
receipt of appropriate permits or approvals under state securities or "blue
sky" laws, (v) the receipt of the requisite Juniata shareholders' approval,
(vi) the accuracy of the representations of Lewistown set forth in Sections
5.1(t) and (u)), and (B) do not require any consent of any person under,
conflict with or result in a breach of or accelerate the performance required
by any of the terms of, any material debt instrument, lease, license,
covenant, agreement or understanding to which Juniata or JVB is a party or by
which either is bound or any order, ruling, decree, judgment, arbitration
award or stipulation to which Juniata or JVB is subject, or constitute a
default thereunder or result in the creation of any lien, claim, security
interest, encumbrance, change, restriction, or right of any third party of any
kind whatsoever upon any of their properties or assets.
(n) Neither Juniata nor JVB is in violation of, or has received notice of
a potential or actual violation of, any applicable federal, state, or local
laws, statutes, rules, regulations, or ordinances relating to public health,
safety, or the environment, including, without limitation, relating to
releases, discharges, emissions, or disposals to air, water, land, or ground
water to the withdrawal or use of ground water, to the use, handling, or
disposal of polychlorinated biphenyls ("PCB's"), asbestos, or urea
formaldehyde, to the treatment, storage, disposal or management of hazardous
substances (including, without limitation, petroleum, crude oil or any
fraction thereof, or other hydrocarbons), pollutants or contaminants, to
exposure to toxic, hazardous or other controlled, prohibited or regulated
substances which violation could have a material adverse effect on the
business, properties or financial condition of Juniata and JVB on a
consolidated basis. To the best knowledge of Juniata, any improvements on
other real estate owned or leased by Juniata or JVB do not contain friable
asbestos or substances containing asbestos and deemed hazardous by any
federal, state, or local laws, regulations, or orders respecting such
materials. Neither Juniata nor JVB knows of any liability or class of
liability of Juniata or JVB under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601 et
seq) or the Resource Conservation and Recovery Act of 1976, as amended (42
U.S.C. Section 6901 et seq).
(o) The information pertaining to Juniata and JVB which will appear in the
Juniata Registration Statement, the Prospectus or the Proxy Statement, in the
form filed with the SEC, or in the applications to be filed to obtain the
Government Approvals, will contain no untrue statement of any material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which
they are made, not misleading; provided, however, that information as of a
later date shall be deemed to modify information as of an earlier date. All
financial statements of Juniata included in the Prospectus or the Proxy
Statement will present fairly the consolidated financial condition and results
of operations of Juniata or JVB at the dates and for the periods covered by
such statements in accordance with generally accepted accounting principles
consistently applied throughout the periods covered by such statements (it
being understood that Juniata's interim financial statements are not audited
and are not prepared with related notes but reflect all adjustments which are,
in the opinion of Juniata, necessary for a fair presentation of such financial
statements).
(p)(1) Juniata and JVB have timely filed all federal, state, county and
local returns in respect of taxes, including, without limitation, estimated
tax returns, employer's withholding tax returns, other withholding tax returns
and Federal Unemployment Tax Act returns, and all other reports or other
information required or requested to be filed by it, and each such return,
report or other information is complete and accurate in all material respects.
Juniata and JVB have paid the amounts shown as owing on such returns
(collectively, "Taxes"). No waivers of statutes of limitations, and no
agreement relating to assessment or collection, are in effect in respect of
any Taxes. Except as disclosed in Schedule II, there are no claims pending
against Juniata or JVB for the alleged deficiency in the payment of any Taxes,
and neither Juniata nor JVB knows of any pending or threatened audits,
investigations or claims for unpaid Taxes or relating to any liability in
respect of Taxes.
(2) Juniata has heretofore delivered to Lewistown copies of its
consolidated United States federal and Pennsylvania corporate tax returns for
the fiscal years ended December 31, 1996, 1995, 1994, 1993 and 1992, true and
correct copies of which are included in Schedule II.
(3) The consolidated provision for current taxes payable
reflected in "Other Liabilities" in the Juniata 1996 Balance Sheet, as of the
date hereof and as of the Effective Date, is and will be adequate to cover (A)
all or substantially all accrued and unpaid Taxes of Juniata and JVB, whether
or not disputed, for the period ended December 31, 1996, and for all prior
periods, and (B) all or substantially all Taxes that may become due and
payable by Juniata and JVB in future periods (i) in respect of transactions,
sales or services occurring or performed on or prior to December 31, 1996,
which by virtue of tax or accounting treatment will not be included in income
until subsequent to such date, or (ii) in respect of deductions, costs or
other allowances taken for federal income tax purposes which Juniata's
auditors have reason to believe are likely to be disallowed by the Internal
Revenue Service if audited by such Service. The provision for applicable taxes
stated on the consolidated books of Juniata as of the date hereof and as of
the Effective Date, is and will be adequate to cover (A) all accrued and
unpaid federal, state, county, and local taxes of Juniata and JVB, whether or
not disputed, for the period ended on the date hereof or on the Effective
Date, as the case may be, and for all prior periods, and (B) all federal,
state, county and local Taxes that may become due and payable by Juniata and
JVB in future periods (i) in respect of such transactions, sales or services
occurring or performed on or prior to the date hereof or the Effective Date,
as the case may be, which by virtue of tax or accounting treatment will not be
included in income until subsequent to such dates, or (ii) in respect of
deductions, costs or other allowances taken for federal income tax purposes
which Juniata's auditors have reason to believe are likely to be disallowed by
the Internal Revenue Service if audited by such Service.
(4) No consent has been filed relating to Juniata or JVB pursuant
to Section 341(f) of the Code.
(q)(1) Each of Juniata and JVB have good and marketable title, free and
clear of all liens and encumbrances, and the right of possession subject to
existing leaseholds, to all real properties and good title to all other
property and assets, tangible and intangible, reflected in the Juniata 1996
Balance Sheet or purported to have been acquired by it since the date thereof
(except property held as lessee under leases and
disclosed in writing prior to the date hereof and except real or personal
property sold or otherwise disposed of since December 31, 1996, in the Ordinary
Course of Business), except liens for taxes or assessments not delinquent,
pledges to secure deposits, repurchase agreements in the Ordinary Course of
Business and such other liens and encumbrances and imperfections of title as do
not materially affect the value of such property or as reflected in the Juniata
1996 Balance Sheet or as currently shown on the books and records of it and
which do not interfere with or impair its present and continued use. All real
properties owned or leased by Juniata or JVB which are material to the
business, operations or financial condition of Juniata or JVB are in
substantially good operating condition and repair (ordinary wear and tear
excepted).
(2) All properties held by Juniata or JVB under leases are held by it
under valid, binding and enforceable leases (subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and subject,
as to enforceability, to general principles of equity), with such exceptions as
are not material and do not interfere with the conduct of its business, as the
case may be, and it enjoys quiet and peaceful possession of such leased
properties. Neither Juniata nor JVB is in default in any material respect
under any material lease, agreement, or obligation regarding its properties to
which it is a party or by which it is bound.
(r) Each of Juniata and JVB is, and continuously since at least January 1,
1996 has been, insured with reputable insurers against all risks normally
insured against by companies of the same type and in the same line of business,
and all of the insurance policies or bonds maintained by it are in full force
and effect. Neither Juniata nor JVB is in default thereunder and all material
claims thereunder have been filed in due and timely fashion.
(s) No representation or warranty by Juniata and no statement by Juniata
in any certificate, agreement, schedule or other document furnished in
connection with the transactions contemplated by this Agreement, shall contain
any untrue statement of a material fact or omit to state any material fact
necessary to make such representation, warranty or statement not misleading to
Lewistown; provided, however, that information as of a later date shall be
deemed to modify information as of an earlier date.
(t) Other than Xxxxxx Xxxxxxx and Co., Inc., no broker, agent, finder,
consultant or other party (other than legal accounting or financial advisors)
has been retained by Juniata or is entitled to be paid based upon any
agreements, arrangements or understandings made by Juniata in connection with
any of the transactions contemplated by this Agreement.
(u) Except for pledges to secure public and trust deposits, repurchase
agreements in the Ordinary Course of Business, and other pledges required by
laws, none of the investments reflected in Juniata's 1996 Balance Sheet under
the heading "Investment Securities," and none of the investments made since
December 31, 1996, is subject to any restriction, whether contractual or
statutory, which materially impairs the ability of Juniata freely to dispose of
such investment at any time.
ARTICLE VI
AGREEMENTS OF JUNIATA AND LEWISTOWN
6.1 Agreements of Juniata.
(a) Juniata and/or JVB has or will promptly following the execution of
this Agreement, use its best efforts in good faith to take as promptly as
practicable all such steps as shall be necessary in order to cause the Merger
to be consummated as expeditiously as possible.
(b) As the sole shareholder of JVB, Juniata has by unanimous shareholder
action ratified and confirmed the merger of Lewistown into JVB and caused the
Board of Directors of JVB to approve the Merger.
(c) Prior to the Effective Date, Juniata shall take appropriate action to
reserve a sufficient number of authorized but unissued shares of Juniata Common
Stock to be issued in accordance with this Agreement.
Juniata shall issue shares of Juniata Common Stock in accordance with the
Conversion Factor, as it may be adjusted in accordance with this Agreement,
which shares will, when issued and delivered pursuant to this Agreement, be
duly authorized and legally and validly issued, fully paid and nonassessable.
(d) Prior to the Effective Date, Juniata shall appoint an Exchange Agent
for the purpose of exchanging certificates representing shares of Juniata
Common Stock for certificates representing shares of Lewistown Common Stock,
and thereafter Juniata shall issue and deliver to the Exchange Agent
certificates representing shares of Juniata Common Stock, and shall pay to the
Exchange Agent such amounts of cash as shall be required to be delivered to
holders of shares of Lewistown Common Stock entitled to cash in lieu of a
fractional share pursuant to Article II of this Agreement. Any Juniata Common
Stock and any amounts of cash delivered to the Exchange Agent and unclaimed at
the end of two years from the Effective Date shall be repaid to Juniata, in
which event the persons entitled thereto shall look only to Juniata for payment
thereof; provided, however, that if Juniata shall, as required by law, pay to
the Commonwealth of Pennsylvania any unclaimed Juniata Common Stock or monies
so repaid to Juniata, said persons shall thereafter look only to the
Commonwealth of Pennsylvania for payment thereof. All costs and expenses
associated with the foregoing surrender and exchange procedure shall be borne
by Juniata.
(e) Prior to the Effective Date, Juniata, separately and jointly with
Lewistown, shall use its best efforts in good faith to take or cause to be
taken as promptly as practicable all such steps as shall be necessary to obtain
(i) the prior approval of the Merger by the Pennsylvania Department of Banking
("PA DOB"), and the Federal Reserve Bank of Philadelphia (the "Federal
Reserve") the Federal Deposit Insurance Corporation ("FDIC"), and (ii) all
other consents and approvals of government agencies as are required by law or
otherwise (such approvals referred to in clauses (i) and (ii) of this Section
6.1(e) herein referred to as the "Government Approvals"), and shall do any and
all acts and things deemed by Juniata to be necessary or appropriate in order
to cause the Merger of Lewistown with and into JVB to be consummated on the
terms provided in this Agreement as promptly as practicable. Juniata shall
provide Lewistown and its representatives with the right to review in advance
any filing to be made with, or written material to be submitted to, any third
party or governmental body in connection with the transactions contemplated by
this Agreement. Juniata shall provide Lewistown and its counsel with a copy of
all applications and other written material filed with or provided to any such
third party or governmental body, together with a copy of all correspondence to
or from any such third party or governmental body, in each case promptly
following the filing, submission or receipt of such materials.
(f) Juniata shall promptly give written notice to Lewistown upon becoming
aware of the impending or threatened occurrence of any event which would cause
or constitute a breach of any of the agreements, representations and warranties
of Juniata contained or referred to in this Agreement and shall use its best
efforts to prevent the same or remedy the same promptly.
(g) Prior to the Effective Date, Juniata and JVB shall give Lewistown and
its counsel, financial advisor and accountants full access, during normal
business hours and upon reasonable request, to its properties, books,
contracts, commitments and records, and shall furnish Lewistown during such
period with all such information concerning its affairs as Lewistown may
reasonably request. The availability or actual delivery of information about
Juniata or JVB to Lewistown shall not affect the covenants, representations and
warranties of Juniata contained in this Agreement. Lewistown shall treat as
confidential all such information in the same manner as Lewistown treats
similar confidential information of its own, and if this Agreement is
terminated, Lewistown shall continue to treat all such information as
confidential and cause its employees and agents to keep all such information
confidential and shall return such documents theretofore delivered by Juniata
as Juniata shall request.
(h) Juniata shall cause JVB to employ as employees of JVB persons who are
employees of Lewistown immediately prior to the Effective Date and to pay
compensation to each such person that is consistent with the compensation
policies of JVB then in effect, and to provide employee benefits to each such
employee that are no less favorable than employee benefits afforded to
similarly situated employees of Juniata and JVB. For vesting and eligibility
purposes for employee benefits, former Lewistown employees shall receive credit
for years of service with Lewistown. With respect to any welfare benefit plans
to which such employees may become eligible, Juniata and JVB shall cause such
plans to provide credit for any co-payments or deductibles by such employees
and waive all pre-existing condition exclusions and waiting periods. In the
event the application of Juniata/JVB compensation policies and employee
benefits to an individual Lewistown employee causes a reduction in the overall
level of compensation and benefits to such employee, Juniata shall use its
reasonable best effort to increase such employee's aggregate compensation and
benefits to the level in effect prior to the Effective Date over a period of
two (2) years. In the event JFB terminates the employment (other than
unsatisfactory performance of their respective duties) of any employee of
Lewistown within one (1) year of the effective date, Juniata shall cause JVB to
pay severance benefits to such employees in accordance with such severance
policy as established by Juniata's CEO and President agreed to by Juniata's
Chairman and President from time to time adopted.
(i) Prior to the Effective Date, Juniata and JVB shall conduct its
respective business in the ordinary course as heretofore conducted and shall
use its best efforts (i) to preserve its respective business and business
organization intact, (ii) to preserve the good will of its customers and others
having business relations with it, (iii) to maintain its properties in
customary repair, working order and condition (reasonable wear and tear
excepted), (iv) to comply with all laws applicable to it and the conduct of its
business, (v) to keep in force at not less than their present limits all
policies of insurance (including deposit insurance of the FDIC with respect to
JVB), (vi) to file in a due and timely manner all reports, tax returns and
other documents required to be filed with federal, state, local and other
authorities, and (vii) unless it is contesting the same in good faith and has
established reasonable reserves therefor, to pay when required to be paid all
Taxes (as hereinafter defined) indicated by tax returns so filed or otherwise
lawfully levied or assessed upon it or any of its properties and to withhold or
collect and pay to the proper governmental authorities or hold in separate bank
accounts for such payment all Taxes and other assessments which it believes in
good faith to be required by law to be so withheld or collected.
(j) Juniata will not take any actions or engage in any transaction
following the Merger that would cause the Merger to fail to qualify as a
reorganization within the meaning of Section 368 of the Code or fail to qualify
for pooling of interests accounting treatment. Consummation of the
transactions contemplated by this Agreement shall be conditioned upon the
Merger being accounted for under the pooling of interests method of accounting.
(k) Juniata shall cause the issues of shares of Juniata common stock in
connection with the Merger and this Agreement to be submitted promptly for the
approval of its shareholders at a meeting to be called and held in accordance
with Juniata's Articles of Incorporation and Bylaws and the BCL.
(l) Juniata shall not adopt any amendments to its charter or bylaws or
other organizational documents that would alter the terms of Juniata's Common
Stock or could reasonably be expected to have a material adverse effect on the
ability of Juniata to perform its obligations under this Agreement.
(m) Juniata shall take no action which would have the effect of causing the
Merger not to qualify for pooling-of-interests accounting treatment or
reorganization tax treatment.
6.2 Agreements of Lewistown.
(a) At or after the date hereof and on or prior to the Effective Date,
except with the prior written consent of Juniata, or as otherwise provided in
this Agreement, Lewistown shall not:
(1) Amend its Articles of Incorporation or Bylaws; enter into any
shareholder agreement, understanding or commitment relating to the right to
vote its shares of capital stock; purchase, redeem, retire or otherwise
acquire any share of, or any security convertible into shares of, its
capital stock or other equity security; or agree to do any of the
foregoing;
(2) Issue, deliver or sell shares of capital stock or securities
convertible into any such shares or issue or grant any right, option or
other commitment for the issuance, delivery or sale of any such shares or
such securities (other than pursuant to subsection (4) below);
(3) Declare, set aside or pay any dividend or other distribution in
respect of its capital stock (including, without limitation, any stock
dividend or distribution) other than regular quarterly cash dividends
payable in accordance with customary dividend policy, which shall mean cash
dividends payable with respect to Lewistown's Common Stock at a semi-annual
rate not in excess of $.31 per share.
(4) Enter into or amend, or increase the contribution to or
obligation under, any employment contract or any bonus, stock option,
profit sharing, pension, retirement, savings, incentive, deferral or
similar employee benefit program or arrangement, or authorize the creation
of any new or replacement job classifications or staff positions, pay
bonuses or other extraordinary compensation, or grant any salary or wage
increase except normal individual increases in compensation to employees in
accordance with established employee procedures of Lewistown, as the case
may be.
(5) Authorize or make any material change in its business or
operations, other than in the Ordinary Course of Business as hereinafter
defined; incur any material direct or contingent liabilities or commitments
other than in the Ordinary Course of Business; sell or dispose of any
shares of its capital stock or lease, sell or dispose of any other material
part of its assets, in each case except in the Ordinary Course of Business
and for adequate value; establish any new branch banking offices, loan
production offices, or other offices, or make any capital expenditures in
excess in the aggregate of $5,000 (except for ordinary repairs, renewals or
replacements); waive or release any right or cancel or compromise any of
its debts or claims except in the Ordinary Course of Business; or otherwise
enter into any material contract, transaction or commitment on its behalf,
except in the Ordinary Course of Business. For purposes of this Agreement,
the Ordinary Course of Business shall consist of the banking business as
presently conducted by Lewistown and not prohibited by the Pennsylvania
Banking Code (herein referred to as the "Ordinary Course of Business"); or
(6) Except to the extent which the Board of Directors in good faith
believes it is required to discharge its fiduciary duties after
consultation with its legal counsel, Lewistown agrees that neither it nor
any of its officers and directors shall (and Lewistown shall direct and use
its best efforts to cause its employees, agents and representatives
including, without limitation, any investment banker, attorney or
accountant retained by it not to) initiate, solicit or encourage, directly
or indirectly, any inquiries or the making of any proposal or offer
(including, without limitation, any proposal or offer to stockholders of
Lewistown but excluding the transactions contemplated by this Agreement)
with respect to a merger, consolidation or similar transaction involving,
or any purchase of all or any significant portion of the assets or any
equity securities of, Lewistown (any such proposal or offer being
hereinafter referred to as an "Acquisition Proposal") or, engage in any
negotiations concerning, or provide any confidential information or data
to, or have any discussions with, any person relating to an Acquisition
Proposal, or otherwise facilitate any effort or attempt to make or
implement an Acquisition Proposal. Lewistown will immediately cease and
cause to be terminated any existing activities, discussions or negotiations
with any parties conducted heretofore with respect to any of the foregoing.
Lewistown will take the necessary steps to inform the appropriate
individuals or entities referred to in the first sentence hereof of the
obligations undertaken in this Section 6.2(a)(6). Lewistown will notify
Juniata immediately if any such inquiries or proposals are received by, any
such information is requested from, or any such negotiations or discussions
are sought to be initiated or continued with or on behalf of any
corporation, partnership, person or other entity or group other than
Juniata with respect to any Acquisition Proposal.
(b) Prior to the Effective Date, Lewistown shall conduct its business in
the ordinary course as heretofore conducted and shall use its best efforts (i)
to preserve its respective business and business organization intact, (ii) to
keep available to Juniata the services of its present officers (provided,
however, that it shall have the right to terminate the employment of any such
officer for cause in accordance with its
established employee procedures), (iii) to preserve the good will of its
customers and others having business relations with it, (iv) to consult with
Juniata as to the making of any decisions or the taking of any actions in
matters other than in the Ordinary Course of Business, (v) to maintain its
properties in customary repair, working order and condition (reasonable wear
and tear excepted), (vi) to comply with all laws applicable to it and the
conduct of its business, (vii) to keep in force at not less than their present
limits all policies of insurance (including deposit insurance of the FDIC with
respect to Lewistown), (viii) to make no material change in the general terms,
policies and conditions upon which it presently does business other than in the
Ordinary Course of Business, (ix) to file in a due and timely manner all
reports, tax returns and other documents required to be filed with federal,
state, local and other authorities, and (x) unless it is contesting the same in
good faith and has established reasonable reserves therefor, to pay when
required to be paid all Taxes (as hereinafter defined) indicated by tax returns
so filed or otherwise lawfully levied or assessed upon it or any of its
properties and to withhold or collect and pay to the proper governmental
authorities or hold in separate bank accounts for such payment all Taxes and
other assessments which it believes in good faith to be required by law to be
so withheld or collected.
(c) Charge-offs and charge-downs of loans will be taken against
Lewistown's allowance for loan losses in the Ordinary Course of Business when
the potential loss has been quantified by the executive officers of Lewistown.
(d) Prior to the Effective Date, Lewistown shall give Juniata and its
counsel, financial advisors, and accountants full access, during normal
business hours and upon reasonable request, to its properties, books,
contracts, commitments and records, and shall furnish Juniata during such
period with all such information concerning its affairs as Juniata may
reasonably request. The availability or actual delivery of information about
Lewistown to Juniata shall not affect the covenants, representations and
warranties of Lewistown contained in this Agreement. Juniata shall treat as
confidential all such information in the same manner as Juniata treats similar
confidential information of its own, and if this Agreement is terminated,
Juniata shall continue to treat all such information as confidential and cause
its employees and agents to keep all such information confidential and shall
return such documents theretofore delivered by Lewistown as Lewistown shall
request.
(e) Lewistown shall cause the Merger and this Agreement to be submitted
promptly for the approval of its shareholders at a meeting to be called and
held in accordance with the Pennsylvania Banking Code and the BCL. Except as
required by applicable fiduciary duties, in the opinion of counsel to
Lewistown, the Board of Directors of Lewistown shall recommend in Lewistown's
Proxy Statement that the Merger and this Agreement be approved, which
recommendation shall not be withdrawn. In addition thereto, concurrently with
the execution of this Agreement, each member of Lewistown's Board of Directors
shall execute and deliver to Juniata the Directors Letter attached hereto and
made a part hereof as Exhibit "B".
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(f) After execution hereof, Lewistown shall deliver to Juniata a correct
and complete list of holders of the outstanding Lewistown's Common Stock of
record with addresses.
(g) Lewistown, separately and jointly with Juniata, shall use its best
efforts in good faith to take or cause to be taken as promptly as practicable
all such steps as shall be necessary to obtain the Government Approvals, and
shall do any and all acts and things deemed by Lewistown or Juniata to be
necessary or appropriate in order to cause the Merger to be consummated on the
terms provided in this Agreement.
(h) Lewistown shall promptly give written notice to Juniata upon becoming
aware of the impending or threatened occurrence of any event which would cause
or constitute a breach of any of the agreements, representations and warranties
of Lewistown contained or referred to in this Agreement, and shall use its best
efforts to prevent the same or remedy the same promptly.
(i) From and after the date hereof until the Effective Date of the Merger,
Lewistown shall not take any actions with respect to its business or operations
that in the reasonable judgment of Juniata or its accountants
would cause the Merger or any related transaction contemplated by this
Agreement to fail to meet the relevant criteria for pooling of interests
accounting treatment.
(j) Lewistown shall cause its auditors, Xxxxx and Company, Inc., to
perform audits of the balance sheets of Lewistown as of December 31, 1997,
1996, and 1995 and the related statements of income, changes, and stockholders'
equity and cash flows for each of the three (3) years in the period ended
December 31, 1997, in accordance with generally-accepted auditing standards,
and otherwise in a manner which will provide a reasonable basis for the
auditors rendering an opinion that the financial statements referred to above
present fairly in all material respects the financial position of Lewistown as
of December 31, 1997, 1996, and 1995 and the results of operations and cash
flows for each of the three (3) years in the period ended December 31, 1997 in
conformity with generally-accepted accounting principles.
6.3 Agreements of Juniata and Lewistown.
(a) Each party hereto shall, and shall cause its directors, officers,
attorneys and advisors, to maintain, unless otherwise required by applicable
law, the confidentiality of all information obtained in connection with this
Agreement, including the negotiation and performance thereof, which is not
otherwise publicly disclosed by the other party or publicly available, said
agreement with respect to confidentiality to survive any termination of this
Agreement pursuant to Section 11.1.
(b) Juniata and Lewistown shall agree with each other as to the form and
substance of any press release related to this Agreement or the transactions
contemplated hereby, and shall consult each other as to form and substance of
other public disclosures related thereto.
ARTICLE VII
SECURITIES ACT OF 1933;
SECURITIES EXCHANGE ACT OF 1934
7.1 Juniata shall promptly prepare and file with the SEC a registration
statement on Form S-4 (the "Juniata Registration Statement") under and pursuant
to the provisions of the 1933 Act for the purpose of registering the offering of
Juniata Common Stock. Lewistown in cooperation with Juniata shall promptly
prepare for inclusion in the Juniata Registration Statement a proxy statement
(the "Proxy Statement") for the purpose of submitting this Agreement to the
shareholders of Juniata and Lewistown for approval. The Proxy Statement in
definitive form will serve as the prospectus (the "Prospectus") to be included
in the Juniata Registration Statement. Juniata and Lewistown shall each provide
promptly to the other such information concerning its business and financial
condition and affairs as may be required or appropriate for inclusion in the
Juniata Registration Statement, the Prospectus or the Proxy Statement, and shall
cause its counsel and auditors to cooperate with the other's counsel and
auditors in the preparation of the Juniata's Registration Statement, the
Prospectus and the Proxy Statement.
7.2 Juniata and Lewistown shall use their best efforts to have the Juniata
Registration Statement declared effective under the 1933 Act as soon as may be
practicable, and thereafter Lewistown shall distribute the Proxy Statement to
its shareholders in accordance with applicable law and its Articles of
Incorporation and Bylaws, not less than twenty (20) business days prior to the
date upon which the Merger and this Agreement are submitted to its shareholders
for approval. Lewistown shall not mail or otherwise furnish the Proxy Statement
to its shareholders unless and until Juniata shall have received letters from
Xxxxx and Company, Inc. dated the effective date of the Juniata Registration
Statement, to the effect set forth in Section 8.1(j)and 8.2(l).
7.3 Juniata shall not be required to maintain the effectiveness of the
Juniata Registration Statement for the purpose of sale or resale of Juniata
Common Stock by any person; provided, however, that Juniata shall file all
periodic reports which are required under the 1934 Act in order for Juniata to
satisfy the current public information requirement of Rule 144(c), as
promulgated under the 1933 Act, as amended.
7.4 Securities representing shares of the Common Stock issued to
Affiliates (as hereinafter defined in Section 8.1(m) hereof) pursuant to this
Agreement may be subject to stop transfer orders and may bear a restrictive
legend in substantially the following form:
"The shares represented by this Certificate were issued in a transaction to
which Rule 145 promulgated under the Securities Act of 1933, as amended (the
"Act"), applies and may be sold or otherwise transferred only in compliance
with the limitations of such Rule 145, or upon receipt by Juniata of an opinion
of counsel acceptable to it that some other exemption from registration under
the Act is available, or pursuant to a registration statement under the Act."
Should an opinion of counsel indicate that the legend and any stop transfer
order then in effect with respect to the shares may be removed, Juniata will
upon request substitute unlegended securities and remove any stop transfer
orders.
ARTICLE VIII
CONDITIONS
8.1 Conditions to the Obligations of Juniata. The obligations of Juniata
under this Agreement are, at its option (subject to the provisions of Section
11.1(a)), subject to fulfillment on or prior to the Effective Date of each of
the following conditions:
(a) Except as affected by the transactions contemplated by this Agreement,
the representations and warranties of Lewistown in Section 5.1 shall be true
and correct in all material respects on and as of the Effective Date, except as
to any representation or warranty which specifically relates to an earlier
date.
(b) Lewistown shall have performed and complied in all material respects
with all terms of this Agreement required to be performed or complied with by
it on or prior to the Effective Date.
(c) No material adverse change shall have occurred since September 30,
1997 in the business or financial condition of Lewistown, and Lewistown shall
not be engaged in, or a party to or threatened with, any legal action or other
proceeding before any court, any arbitrator of any kind or any government
agency if, in the reasonable judgment of Juniata, such legal action or
proceeding could materially adversely affect the business or financial
condition of Lewistown. For purposes of this section, any change in the
business or financial condition of Lewistown on a consolidated basis which
results from any changes occurring after the date hereof in any federal or
state law, rule or regulation, in generally accepted accounting principles or
in market rates of interest, which change affects banks or their holding
companies generally, shall not be deemed to be a material adverse change.
(d) This Agreement shall have been duly approved by the affirmative vote
of the shareholders of Lewistown owning at least two-thirds (2/3) of its
capital stock outstanding at a meeting of shareholders duly called and held
after distributing the Proxy Statement to all shareholders entitled to vote at
such meeting as required by Section 6.2(e).
(e) Juniata shall have received a certificate, dated the Effective Date,
signed on behalf of Lewistown by its President certifying the fulfillment of
the conditions stated in paragraphs (a), (b), and (c) of this Section 8.1 by
Lewistown.
(f) Lewistown shall have delivered to Juniata such documents as may
reasonably be requested by Juniata to evidence compliance by Lewistown with the
provisions of this Agreement including an opinion of its counsel confirming its
representations as set forth in Subsections (a), (c) (l), (o), and (p) of
Section 5.1 (subject to appropriate assumptions and qualifications), and
setting forth counsel's opinion that the Merger has been approved by all
necessary corporate action of Lewistown, including the Lewistown shareholders.
Lewistown shall also have delivered to Juniata on the Effective Date, a letter
of its litigation counsel setting forth pending litigation involving Lewistown
which was not previously disclosed in writing to Juniata.
(g) The Juniata Registration Statement shall have become effective under
the 1933 Act, no stop order suspending the effectiveness of such Registration
Statement shall be in effect and no proceedings for such purpose shall have
been initiated or threatened by or before the SEC. All state securities and
"blue sky" permits or approvals required (in the opinion of Juniata) to
consummate the transactions contemplated by this Agreement shall have been
received.
(h) All Government Approvals shall be in effect, all conditions or
requirements prescribed by law or by any such Approval shall have been
satisfied, and all required waiting periods shall have expired; provided,
however, that no approval shall be deemed to have been received if it shall
require the divestiture or cessation of any of the present businesses or
operations conducted by either of the parties hereto or of a subsidiary of or
shall impose any other nonstandard condition or requirement, which divestiture,
cessation, condition or requirement Juniata reasonably and in good faith
determines would (i) have a material adverse effect on the business or
financial condition of Juniata and JVB on a consolidated basis or (ii)
otherwise materially impair the value of Lewistown to Juniata (in which case
Juniata shall promptly notify Lewistown).
(i) Juniata shall have received an opinion of its counsel, Mette, Xxxxx &
Xxxxxxxx, substantially to the effect that, under the provisions of the Code:
(1) the Merger of Lewistown with and into JVB upon the terms and
conditions of this Agreement will constitute a reorganization within the
meaning of Section 368 of the Code and will not result in any recognized
gain or loss to Juniata, JVB, or Lewistown;
(2) except for any cash received in lieu of any fractional share, no
gain or loss will be recognized by holders of Lewistown Common Stock who
receive Juniata Common Stock in exchange for the shares of Lewistown Common
Stock which they hold. A holder of Lewistown Common Stock who receives cash
in lieu of a fractional share of Juniata Common Stock will be treated as if
he received a fractional share of Juniata Common Stock pursuant to the
reorganization and Juniata then redeemed such fractional share for the
cash. The holder of Lewistown Common Stock will recognize capital gain or
loss on the constructive redemption of the fractional share in an amount
equal to the difference between the cash received and the adjusted basis of
the fractional share;
(3) the holding period of Juniata Common Stock received in exchange
for Lewistown Common Stock will include the holding period of Lewistown
Common Stock for which it is exchanged, assuming the shares of Lewistown
Common Stock are capital assets in the hands of the holder thereof on the
Effective Date; and
(4) the basis of Juniata Common Stock received in exchange for
Lewistown Common Stock will be the basis of Lewistown Common Stock for
which it is exchanged, less any basis attributable to fractional shares for
which cash is received.
Such opinion shall be given, subject to the receipt, and the accuracy on the
Effective Date of:
(1) representations by Juniata satisfactory to such counsel; and
(2) representations by Lewistown satisfactory to such counsel.
(j) Subject to satisfaction of the requirements of Statement on Auditing
Standards No. 72 of the American Institute of Certified Public Accountants if
applicable, Juniata and its directors and officers shall have received a letter
from Xxxxx and Company, Inc. dated the effective date of the Juniata
Registration Statement, to be in form and substance satisfactory to Juniata, to
the effect that:
(1) In their opinion, the financial statements of Lewistown examined
by them and included in the Juniata Registration Statement comply as to
form in all material respects with the applicable accounting requirements
of the 1933 Act and the published rules and regulations thereunder; and
(2) On the basis of limited procedures, not constituting an audit,
including a limited review of the unaudited financial statements referred
to below, a limited review of the latest available unaudited consolidated
interim financial statements of Lewistown, inspection of the minute book of
Lewistown since December 31, 1997, inquiries of officials of Lewistown
responsible for financial and accounting matters and such other inquiries
and procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) any unaudited Balance Sheets, Statements of Income,
Statements of Stockholders' Equity and Statements of Cash Flows of
Lewistown included in the Juniata Registration Statement are not in
conformity with generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial statements
covered by their report included in the Juniata Registration Statement;
(B) as of a specified date not more than five days prior to the
date of delivery of such letter, there have been any changes in the capital
stock, decreases in capital surplus or increases in debt of Lewistown as
compared with amounts shown in the balance sheet as of December 31, 1997
included in the Juniata Registration Statement, except in each case for
such changes, increases or decreases which the Juniata Registration
Statement discloses have occurred or may occur and except for such changes,
decreases or increases as aforesaid which are immaterial; and
(C) for the period from January 1, 1998 to such specified date,
there were any decreases in the total or per share amounts of income before
securities gains or losses or net income of Lewistown as compared with the
comparable period of the preceding year, except in each case for decreases
which the Juniata Registration Statement discloses have occurred or may
occur, and except for such decreases which are immaterial.
(k) The aggregate number of shares of Lewistown Common Stock held by
persons who have taken all of the steps required prior to the Effective Date to
perfect their right (if any) to be paid the fair value of such shares under the
BCL("Dissenting Shares") shall not be more as to prevent Juniata from meeting
the continuity of business enterprise requirement of Section 368(a)(1)(A) of
the Code with respect to the Lewistown acquisition, and the number of
Dissenting Shares, the number of shares owned by Juniata or its affiliates,
together with the aggregate number of fractional shares with respect to which
persons will receive cash in lieu of Juniata Common Stock pursuant to this
Agreement, shall be less than ten (10%) percent of the number of outstanding
shares of Lewistown Common Stock or such number, if less, which will allow
Juniata to account for the Merger as a "pooling of interests".
(l) Juniata shall have received from each of the persons who, in the
opinion of counsel for Juniata, might be deemed to be affiliates of Lewistown
under Rule 145 of the Rules and Regulations under the 1933 Act (the
"Affiliates"), a signed undertaking satisfactory to Counsel for Juniata,
acknowledging and agreeing to abide by the limitations imposed by law in
respect of the sale or other disposition of the Juniata Common Stock received
by such person pursuant to the Merger. Lewistown agrees to use its best efforts
to have each Affiliate enter into the undertakings referred to in this Section
8.1(l) on or prior to the Effective Date.
(m) This Agreement and the issuance of Juniata Common Stock in connection
with the Merger shall have been duly approved by the affirmative vote of a
sixty-six and two-thirds (66 and 2/3) percent majority of Juniata's Common
Stock outstanding at a duly called meeting of the shareholders of Juniata.
(n) Juniata and JVB, as the case may be, shall have entered into an
Employment Agreement with Xxxxxxx X. Xxxxxxxxx, a copy of which is attached
hereto and made a part hereof, which Employment Agreement shall be the valid
and enforceable obligations of the parties thereto.
(o) Juniata shall have received an opinion from Xxxxxx Xxxxxxx and
Company, Inc. dated as of a date within five (5) business days of the date of
the Juniata Proxy Statement to the effect that the consideration to
be paid by Juniata to the holders of Lewistown Common Stock is fair from a
financial point of view to the Juniata shareholders.
(p) The financial statements of Lewistown examined by Xxxxx and Company
and described in Section 6.2(j) of this Agreement and included in the Juniata
Registration Statement do not vary in any material respect from the unaudited
financial statements of Lewistown for the years then ended and referred to in
Section 5.1(f) of this Agreement.
8.2 Conditions to the Obligations of Lewistown. The obligations of
Lewistown under this Agreement are, at its option (subject to the provisions of
Section 11.1(a)), subject to the fulfillment on or prior to the Effective Date
of each of the following conditions:
(a) Except as affected by the transactions contemplated by this
Agreement and as affected by events occurring or arising after the date first
above written in the ordinary course of the business of Juniata which do not
materially adversely affect the business of Juniata, the representations and
warranties of Juniata in Section 5.2 shall be true and correct in all
material respects on and as of the Effective Date, except as to any
representation or warranty which specifically relates to an earlier date.
(b) Juniata shall have performed and complied in all material
respects with all terms of this Agreement required to be performed or
complied with by it on or prior to the Effective Date. Juniata as the sole
shareholder of JVB shall have approved the merger of Juniata into JVB.
(c) No material adverse change shall have occurred since September
30, 1997 in the business or financial condition of Juniata and JVB on a
consolidated basis, and neither Juniata nor JVB shall be engaged in, or a
party to or threatened with, any legal action or other proceeding before any
court, any arbitrator of any kind or any government agency if, in the
reasonable judgment of Lewistown, such legal action or proceeding could
materially adversely affect the business or financial condition of Juniata
and JVB, considered as a whole. For purposes of this section, any change in
the business or financial condition of Juniata on a consolidated basis which
results from any changes occurring after the date hereof in any federal or
state law, rule or regulation, in generally accepted accounting principles or
in market rates of interest, which change affects banks or their holding
companies generally, shall not be deemed to be a material adverse change.
(d) This Agreement shall have been duly approved by the affirmative
vote of (i) Lewistown shareholders owning at least two-thirds (2/3) of its
capital stock outstanding and (ii) Juniata's shareholders pursuant to
Juniata's Articles of Incorporation and the listing requirements of the
American Stock Exchange.
(e) Lewistown shall have received a certificate, dated the Effective
Date, signed on behalf of Juniata by its Chairman and Chief Executive Officer
or President, certifying the fulfillment of the conditions stated in
paragraphs (a), (b), (c), and (d) of this Section 8.2.
(f) Juniata shall have delivered to Lewistown such documents as may
reasonably be requested by Lewistown to evidence compliance by Juniata with
the provisions of this Agreement including an opinion of its counsel
confirming its representation set forth in Subsections (a), (e), (i), (l),
and (m) of Section 5.2 and to the effect that the shares to be issued in the
Merger are duly and validly authorized and issued.
(g) The Juniata Registration Statement shall have become effective
under the 1933 Act, no stop order suspending the effectiveness of the Juniata
Registration Statement shall be in effect and no proceedings for such purpose
shall have been initiated or threatened by or before the SEC. All state
securities and "blue sky" permits or approvals required (in the opinion of
Lewistown) to consummate the transactions contemplated by this Agreement
shall have been received.
(h) All Government Approvals shall have been received and shall be in
effect, all conditions or requirements prescribed by law or by any such
Approval shall have been satisfied, and all required waiting periods shall
have expired.
(i) Lewistown shall have received the opinion of Juniata's counsel
referred to in Section 8.1(i).
(j) the Employment Agreement shall become effective.
(k) Lewistown shall have received an opinion from RP Financial, LC.
dated as of a date within five (5) days of the date of the Lewistown Proxy
Statement to the effect that the consideration to be received by the holders
of Lewistown common stock pursuant to the Merger is fair from a financial
point of view to Lewistown shareholders.
(l) Subject to satisfaction of the requirements of Statement on
Auditing Standards No. 72 of the American Institute of Certified Public
Accountants if applicable, Lewistown and its directors and officers shall
have received a letter from Xxxxx and Company, Inc. dated the effective date
of the Juniata Registration Statement, to be in form and substance
satisfactory to Lewistown, to the effect that:
(1) In their opinion, the consolidated financial statements of
Juniata examined by them and included in the Juniata Registration
Statement comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the published
rules and regulations thereunder; and
(2) On the basis of limited procedures, not constituting an
audit, including a limited review of the unaudited financial
statements referred to below, a limited review of the latest available
unaudited consolidated interim financial statements of Juniata,
inspection of the minute book of Juniata since December 31, 1997,
inquiries of officials of Juniata responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused
them to believe that:
(A) any unaudited Balance Sheets, Statements of Income,
Statements of Stockholders' Equity and Statements of Cash Flows of
Juniata included in the Juniata Registration Statement are not in
conformity with generally accepted accounting principles applied on a
basis substantially consistent with that of the audited financial
statements covered by their report included in the Juniata
Registration Statement;
(B) as of a specified date not more than five days prior to
the date of delivery of such letter, there have been any changes in
the capital stock, decreases in capital surplus or increases in debt
of Juniata as compared with amounts shown in the balance sheet as of
December 31, 1997 included in the Juniata Registration Statement,
except in each case for such changes, increases or decreases which the
Juniata Registration Statement discloses have occurred or may occur
and except for such changes, decreases or increases as aforesaid which
are immaterial; and
(C) for the period from January 1, 1998 to such specified
date, there were any decreases in the total or per share amounts of
income before securities gains or losses or net income of Juniata as
compared with the comparable period of the preceding year, except in
each case for decreases which the Juniata Registration Statement
discloses have occurred or may occur, and except for such decreases
which are material.
(m) Juniata and Lewistown shall have been advised in writing by Xxxxx
and Company, Inc. on the Effective Date that the Merger should be treated as
a pooling transaction for financial accounting purposes.
(n) The election of the officers and directors of Lewistown to the
positions with Juniata set forth in Sections 3.1 and 3.2 shall become
effective.
ARTICLE IX
CLOSING
9.1 The transactions contemplated by this Agreement shall be consummated
at a closing (the "Closing") to be held at the executive offices of Juniata at
10:00 a.m. on a date to be designated by Juniata, which date shall not be later
than thirty (30) days after the receipt of all required Governmental Approvals
and Shareholder approvals and after the expiration of all applicable waiting
periods with the Merger to be consummated in such order and after such
intermediate steps as the parties hereto may agree. The Closing Date shall
(unless otherwise provided) be the Effective Date.
9.2 At the Closing, the opinions, certificates and other documents
required to be delivered by this Agreement shall be delivered.
9.3 At the Closing, Juniata and Lewistown shall instruct their respective
representatives to make or confirm such filings as shall be required in the
opinion of counsel to Juniata to give effect to the Merger.
ARTICLE X
EXPENSES
10.1 Each of the parties hereto agrees to pay, without right of
reimbursement from the other party and whether or not the transactions
contemplated by this Agreement shall be consummated, the costs incurred by it
incident to the performance of its obligations under this Agreement, including,
without limitation, costs incident to the preparation of this Agreement, the
Juniata Registration Statement, the Prospectus and the Proxy Statement
(including the audited financial statements of the parties contained therein)
and to the consummation of the Merger and of the other transactions contemplated
herein, including the fees and disbursements of counsel, accountants and
consultants employed by such party in connection therewith; except that in the
event that the transactions contemplated in this Agreement are not consummated
for any reason, Juniata and Lewistown shall each pay one-half of (a) the
aggregate costs theretofore incurred in printing the Juniata Registration
Statement, the Prospectus and the Proxy Statement, (b) the registration fee for
the Juniata Registration Statement, and (c) the fees for filing applications for
Government Approvals.
ARTICLE XI
INDEMNIFICATION; DIRECTORS' AND OFFICERS' INSURANCE
11.1 From and after the Effective Date, JVB agrees to indemnify and hold
harmless each present and former director and officer of Lewistown and each
officer or employee of Lewistown that is serving or has served as a director or
trustee of another entity expressly at Lewistown request or direction (the
"Indemnified Parties"), against any and all costs or expenses (including
reasonable attorneys' fees), judgments, fines, losses, claims, damages or
liabilities (collectively, "Costs") incurred in connection with any and all
claims, actions, suits, proceedings or investigations, whether civil, criminal,
administrative or investigative, arising out of or pertaining to matters arising
out of or in connection with such party's position as, or actions taken as, a
director or officer of Lewistown or a subsidiary or director or trustee of
another entity at the request or direction of Lewistown, at or prior to the
Effective Date, whether asserted or claimed prior to, at or after the Effective
Date, to the fullest extent permitted by applicable law (and also advance
expenses incurred to the fullest extent permitted by applicable law); provided,
however, that JVB shall not have any obligation hereunder to any Indemnified
Party when and if a court of competent jurisdiction shall ultimately determine,
and such determination shall have become final and nonappealable, that the
indemnification of such Indemnified Party in the manner contemplated hereby is
prohibited by applicable law. If such indemnity is determined not to be
available as a matter of law
with respect to any Indemnified Party, then JVB and the Indemnified Party shall
contribute to the amount payable in such proportion as is appropriate to reflect
relative faults and benefits and other relevant equitable considerations.
11.2 Any Indemnified Party wishing to claim indemnification under Section
11.1, upon learning of any such claim, action, suit, proceeding or
investigation, shall promptly notify JVB thereof, but the failure to so notify
shall not relieve JVB of any liability it may have to such Indemnified Party if
such failure does not materially prejudice Juniata. In the event of any such
claim, action, suit, proceeding or investigation (whether arising before or
after the Effective Date): (i) JVB shall have the right to assume the defense
thereof and JVB shall not be liable to such Indemnified Parties for any legal
expenses of other counsel or any other expenses subsequently incurred by such
Indemnified Parties in connection with the defense thereof, except that if
Juniata elects not to assume such defense, or counsel for the Indemnified
Parties advises that there are issues which raise conflicts of interest between
JVB and the Indemnified Parties, the Indemnified Parties may retain counsel
satisfactory to them, and JVB shall pay the reasonable fees and expenses of such
counsel for the Indemnified Parties promptly as statements therefor are
received; (ii) the Indemnified Parties will cooperate in the defense of any such
matter; and (iii) JVB shall not be liable for any settlement effected without
its prior written consent which shall not be unreasonably withheld.
11.3 For a period of six years after the Effective Date, JVB shall use all
reasonable efforts to cause to be maintained in effect the current policies of
directors' and officers' liability insurance maintained by Lewistown (provided
that JVB may substitute therefor policies of at least the same coverage and
amounts containing terms and conditions which are substantially no less
advantageous to such directors and officers) with respect to claims arising from
facts or events which occurred before the Effective Date; provided, however,
that in no event shall JVB be obligated to expend, in order to maintain or
provide insurance coverage pursuant to this Section 11.3, any amount per annum
in excess of one hundred fifty percent (150%) of the amount of the annual
premiums paid as of the date hereof by Lewistown for such insurance (the
"Maximum Amount"). If the amount of the annual premiums necessary to maintain
or procure such insurance coverage exceeds the Maximum Amount, Juniata shall use
all reasonable efforts to maintain the most advantageous policies of directors'
and officers' insurance obtainable for an annual premium equal to the Maximum
Amount.
ARTICLE XII
TERMINATION
12.1 This Agreement may be terminated as follows:
(a) By the mutual consent of the Board of Directors of both Juniata and
Lewistown at any time prior to the consummation of the Merger;
(b) By the Board of Directors of Juniata on or after September 30, 1998,
if (i) any of the conditions in Section 8.1 to which the obligations of Juniata
are subject have not been fulfilled, or (ii) such conditions have been
fulfilled or waived by Juniata but Lewistown shall have failed to complete the
Merger.
(c) By the Board of Directors of Juniata if, in its reasonable opinion,
(i) a material adverse change shall have occurred since September 30, 1997, in
the business or financial condition of Lewistown, or (ii) there has been
failure on the part of Lewistown to comply with its obligations under this
Agreement, or any failure to comply with any condition set forth in Section
8.1.
(d) By the Board of Directors of Juniata if the Merger and this Agreement
are not approved by the affirmative vote of the sixty-six and two-thirds (66
and 2/3) percent majority vote of Juniata's shareholders as required by
Juniata's Articles of Incorporation;
(e) By the Board of Directors of either party if there shall be pending or
threatened any material action, proceeding or investigation before any court or
administrative agency by any governmental agency or any other person
challenging, or seeking material damages in connection with, the Merger.
(f) By the Board of Directors of Lewistown on or after September 30, 1998,
if (i) any of the conditions contained in Section 8.2 to which the obligations
of Lewistown are subject have not been fulfilled (provided, however, that if
Juniata is engaged at the time in litigation or an appeal procedure relating to
an attempt to obtain one or more of the Government Approvals, such non-
fulfillment shall not give Lewistown the right to terminate this Agreement for
an additional period of three months); or (ii) such conditions have been
fulfilled or waived but Juniata shall have failed to complete the Merger.
(g) By the Board of Directors of Lewistown if, in its reasonable opinion,
(i) a material adverse change shall have occurred since September 30, 1997, in
the business or financial condition of Juniata or (ii) there has been a failure
on the part of Juniata to comply with its obligations under this Agreement, or
any failure to comply with any condition set forth in Section 8.2.
(h) By the Board of Directors of Lewistown if the Merger and this
Agreement are not approved by the affirmative vote of Lewistown shareholders
having at least two-thirds (2/3) of its capital stock, called pursuant to
Section 6.2(e) of this Agreement; provided, that Juniata and Lewistown may
mutually agree to keep this Agreement in effect and to call an additional
meeting of the shareholders of Lewistown to obtain such shareholder approval.
(i) By the Board of Directors of Lewistown if, prior to the effective
date: (1) Juniata executes a letter of intent or other evidence of commitment
by Juniata to merge with or be acquired by another financial institution; (2)
an actual "change in control" (as defined in the Employment Agreement)of
Juniata occurs; or (3) Juniata enters into any agreement relating to a
transaction which would require the approval of its shareholders under
Juniata's Articles of Incorporation or Bylaws or the BCL.
The power of termination hereunder may be exercised by Juniata and
Lewistown, as the case may be, only by giving written notice, signed on behalf
of such party by its Chairman (or President) and Chief Executive Officer, to the
other party.
12.2 Termination of this Agreement shall not terminate or affect the
obligations of the parties to pay expenses as provided in Section 10 and shall
not affect any agreement after such termination.
ARTICLE XIII
MISCELLANEOUS
13.1 Any notice or other communication required or permitted under this
Agreement or the Bank Merger Agreement shall be effective only if it is in
writing and delivered personally or sent by registered or certified mail,
postage prepaid, or by recognized overnight delivery service guaranteeing next
day delivery, addressed as follows:
If to Juniata:
Juniata Valley Financial Corp.
Box 66 - Bridge & Main Sts.
Xxxxxxxxxxx, XX 00000
Attention: A. Xxxxxx Xxxx, President and CEO
With a copy to:
Mette, Xxxxx & Xxxxxxxx
0000 Xxxxx Xxxxx Xxxxxx
P. O. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxx, Esquire
If to Lewistown:
Lewistown Trust Company
000 Xxxx Xxxxxx Xxxxxx
P. O. Xxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Executive Vice President
With a copy to:
Barley, Snyder, Xxxxx & Xxxxx, LLC
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxxxx, Esquire
or to such other address as either party may designate by notice to the other,
and shall be deemed to have been given upon receipt.
13.2 Subject to the provisions of Section 12.1(i), Juniata may, prior to
the Effective Date of the Merger, consolidate with or merge with or into one or
more other banks or bank holding companies so long as Juniata and JVB are the
surviving corporations. The terms and conditions of this Agreement shall not be
affected by such merger or consolidation, and the shareholders of Lewistown
shall receive the common stock of the surviving bank holding company, unless the
provisions of Section 8.2(c) or (k) hereof should apply.
13.3 This Agreement is binding upon and is for the benefit of Juniata and
Lewistown and their respective successors and permitted assigns. This Agreement
is not made for the benefit of any person, firm, corporation or association not
a party hereto and no other person, firm, corporation or association shall
acquire or have any right under or by virtue of this Agreement.
13.4 Except for the agreements of Juniata set forth herein, the
representations, warranties and agreements of Juniata and Lewistown contained in
this Agreement shall not survive the consummation of the Merger; provided,
however, that in the event of the consummation of the Merger, no such
representations, warranties or agreements shall be deemed to be terminated so as
to deprive Juniata and Lewistown (or any director, officer or controlling person
of Juniata and Lewistown) of any defense in law or in equity which otherwise
would be available against the claims of any persons, including shareholders.
13.5 This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Pennsylvania.
13.6 This Agreement may be executed in several counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, Juniata and Lewistown have each caused this Agreement
to be signed by its Chief Executive Officer and its corporate seal to be
hereunto affixed and attested by the signature of its Secretary, assistant
Secretary, a Vice President or its Clerk, all as of the day and year first above
written.
JUNIATA VALLEY FINANCIAL CORP.
By:
-------------------- ----------------------------------
Secretary President and Chief Executive Officer
LEWISTOWN TRUST COMPANY
By:
-------------------- ----------------------------------
Secretary President and Chief Executive Officer
