Exhibit 2.1 Amended and Restated Bank Merger Agreement and Contract for Union
AMENDED AND RESTATED
BANK MERGER AGREEMENT AND CONTRACT FOR UNION
AMENDED AND RESTATED BANK MERGER AGREEMENT AND CONTRACT FOR UNION,
dated July 7, 2005 (the "Agreement"), pursuant to the Revised Statutes
Annotated of the State of New Hampshire (the "NHRSA") and Section 215a of the
National Bank Act (the "NBA"), by and between The Berlin City Bank, a New
Hampshire-chartered trust company ("BCB"), and The Pemigewasset National Bank
of Plymouth, New Hampshire, a national banking association ("PNB").
WHEREAS, BCB and PNB are both wholly owned subsidiaries of Xxxxxxxx
Financial, Inc. ("NFI");
WHEREAS, BCB, PNB and NFI all have concluded that, to achieve certain
marketing, branding and cost efficiencies, the merger of PNB into BCB (the
"Bank Merger") is desirable and advantageous;
WHEREAS, BCB and PNB, to effect the Bank Merger, entered into a Bank
Merger Agreement and Contract for Union, dated as of May 31, 2005 (the
"Original Agreement"); and
WHEREAS, BCB, PNB and NFI have determined that it is in the best
interests of BCB and PNB to amend the Original Agreement to reflect a change in
the Effective Time of the Agreement from 8:59 a.m. to 8:29 a.m. on October 1,
2005, but that all other terms of the Agreement and Contract should and shall
remain unchanged.
NOW, THEREFORE, for $1 and other good and valuable consideration, the
sufficiency of which is hereby acknowledged by both parties, BCB and PNB hereby
agree as follows:
ARTICLE I
THE BANK MERGER
1.01 THE BANK MERGER. The constituent corporations to the Bank Merger
shall be BCB and PNB. Subject to the terms and conditions of this Agreement, in
accordance with Chapter 388 of the NHRSA and Section 215a of the NBA, each as
in effect at the Effective Time (as defined in Section 1.02 hereof), PNB shall
merge with and into BCB. BCB shall be the surviving corporation (sometimes
referred to herein as the "Surviving Bank") of the Bank Merger and shall
continue its corporate existence as a New Hampshire-chartered trust company
under the NHRSA following consummation of the Bank Merger. Upon consummation of
the Bank Merger, the separate corporate existence of PNB shall cease.
1.02 EFFECTIVE TIME. The Bank Merger shall become effective on the
date that this Agreement is filed with the Secretary of State of the State of
New Hampshire or on such other date as is designated in the filing. The term
"Effective Time" shall be the date and time when the Bank Merger becomes
effective. BCB and PNB will use their respective best efforts to cause the
Effective Time of the Bank Merger to be at 8:29 a.m. (which is before the
opening of business) on October 1, 2005.
1.03 EFFECTS OF THE BANK MERGER. At and after the Effective Time, the
Bank Merger shall have the effects provided herein and set forth in the
applicable provisions of the NHRSA. Without limiting the generality of the
foregoing and subject thereto, all the property, rights, privileges, powers and
franchises of PNB and BCB shall vest in BCB as the Surviving Bank, and all
debts, liabilities (including deposit liabilities), obligations, restrictions,
disabilities and duties of PNB and BCB shall become the debts, liabilities
(including deposit liabilities), obligations, restrictions, disabilities and
duties of BCB as the Surviving Bank.
1.04 ARTICLES OF AGREEMENT. At the Effective Time, the Articles of
Agreement of BCB, as in effect immediately prior to the Effective Time, shall
be the Articles of Agreement of BCB as the Surviving Bank, until thereafter
amended in accordance with applicable law and such Articles of Agreement.
1.05 BY-LAWS. At the Effective Time, the By-Laws of BCB, as in effect
immediately prior to the Effective Time, shall be the By-Laws of the Surviving
Bank until thereafter amended in accordance with applicable law, the Articles
of Agreement of the Surviving Bank and such By-Laws.
1.06 NAME. At the Effective Time, the name of the Surviving Bank shall
be changed to "Xxxxxxxx Bank," until thereafter changed in accordance with
applicable law and the Articles of Agreement of the Surviving Bank.
1.07 CAPITAL STOCK. Unless otherwise determined by BCB prior to the
Effective Time by delivery to PNB of an addendum to this Agreement, from and
after the Effective Time, the total number of shares and the par value of each
class of stock that the Surviving Bank shall be authorized to issue shall be
one hundred fifty thousand (150,000) shares of common stock, par value $5.00
per share and fifty thousand (50,000) shares of preferred stock, par value
$1.00 per share, until thereafter amended in accordance with applicable law and
the Articles of Agreement of the Surviving Bank.
1.08 DIRECTORS AND OFFICERS. At the Effective Time, the initial
directors and officers of the Surviving Bank shall be the directors and
officers of BCB immediately prior to the Effective Time. The senior executive
officers and directors of the Surviving Bank at the Effective Time shall be
those named on Schedule A attached hereto, each to hold office in accordance
with the Articles of Agreement and By-Laws of the Surviving Bank until their
respective successors are duly elected or appointed and qualified.
1.09 MAIN OFFICE. At the Effective Time, the main office of the
Surviving Bank shall be located in Berlin, New Hampshire.
ARTICLE II
CANCELLATION OF SHARES
Each share of common stock, par value $25.00 per share, of PNB issued
and outstanding immediately prior to the Effective Time shall, by virtue of the
Bank Merger and without any action on the part of the holder thereof, be
canceled.
ARTICLE III
REPRESENTATIONS
Each of BCB and PNB represents that this Agreement has been duly
authorized, executed and delivered by such party and constitutes a legal, valid
and binding obligation of such party, enforceable against it in accordance with
the terms hereof.
ARTICLE IV
CONDITIONS TO CLOSING
Consummation of the Bank Merger contemplated hereunder is conditioned
upon the satisfaction of all conditions set forth below:
(i) that all representations of BCB and PNB remain true, or any
breach thereof has been cured in accordance with Article V (ii)
herein;
(ii) that all approvals required for the consummation of the Bank
Merger from the Federal Deposit Insurance Corporation ("FDIC")
shall have been obtained;
(iii) that all approvals required for the consummation of the Bank
Merger from the Commissioner of the New Hampshire Banking
Department (the "Commissioner") shall have been obtained and
that modifications, if any, to the terms and conditions of this
Agreement prescribed by the Commissioner shall have been made.
ARTICLE V
TERMINATION
This Agreement may be terminated and the Bank Merger and the other
transactions contemplated by the Agreement may be abandoned at any time prior
to the Effective Time:
(i) by mutual consent of BCB and PNB;
(ii) by either BCB or PNB for a material breach on the part of the
other party of any representation, warranty or covenant
contained in the Agreement that (a) is not cured within 30 days
after the giving of written notice to the breaching party of
such breach or (b) by its nature cannot be cured prior to the
Effective Time; and
(iii) by either BCB or PNB if an approval of either of the FDIC or the
Commissioner required for consummation of the Bank Merger is
denied by final, nonappealable action of the FDIC or the
Commissioner, as the case may be, or if any governmental entity
of competent jurisdiction has issued a final, nonappealable
order enjoining or otherwise prohibiting the consummation of the
Bank Merger.
IN WITNESS WHEREOF, BCB and PNB have each caused this Agreement to be
executed as a sealed instrument by their duly authorized officers as of the day
and year first above written.
THE BERLIN CITY BANK
By:
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Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman, President and
Chief Executive Officer
Attest:
By:
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------------------------- Name: Xxxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxx Title: Chief Financial
Clerk Officer and Treasurer
THE PEMIGEWASSET NATIONAL BANK OF
PLYMOUTH, NEW HAMPSHIRE
By:
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Name: Xxxxxxx X. Xxxxxxxx
Title: President and Chief Executive
Officer
Attest:
-------------------------
Xxxxxx X. Xxxxx By:
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Assistant Secretary Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer and
Treasurer
Schedule A
Senior Executive Officers and Directors of Xxxxxxxx Bank
(Subsequent to the Merger)
Senior Executive Officers:
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Years Experience
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Name Title NWFI & Banking
Affiliates
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Xxxxxxx X. Xxxxxxxx Chairman, President & CEO 30 30
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Xxxxxx X. Xxxx SVP/Retail Lending 6 40
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Xxxxxx X. Xxxxxxxx SVP/Operations Officer 17 29
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Xxxxxxx X. Xxxxxxxx SVP/Senior Lender Commercial 14 39
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Xxxx X. Xxxxx SVP/Senior Technology Officer 1 6
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Xxxxxxx X. Xxxxxxx SVP/CFO & Treasurer 6 35
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Xxxx X. Xxxxxxxx, Xx. SVP/Retail Banking 15 34
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Xxxxxx X. Xxxxx Clerk 33 33
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Directors:
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Shares of Holding
Company Common
Stock Owned at
Name Address Principal Occupation 4/1/05
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Xxxxxxxx X. Xxxxx 0 Xxxx Xxxxxx Xxxx-Xxxxxxxx of the Board,
Xxxxxx, XX 00000 Xxxxxxxx Financial, Inc,;
Chairman of the Board, The
Pemigewasset National Bank of
Plymouth, New Hampshire 54,500
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Xxxxxxxxx X. Xxxxxxxx 000 Xxxxxx Xxxxxxxx Xxxxxxx Xxxxxxxxx & XXX, XX Electric
Xxxxxxxx, XX 00000 Cooperative, Inc. 1,145
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Xxxxxxx X. Xxxxxx 35 Meadowbrook Drive Chief Executive Officer and
Xxxxxxx, XX 00000 Chairman of the Board, Airmar
Technology Corp. 250
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Xxxxxx X. Xxxxxx, Xx. XX Xxx 00 President, Xxxxxxxx
00 Xxxxxxx Xxxx Structural Steel, Inc.
Xxxxxx, XX 00000 19,312
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Xxxxx X. Xxxxx XX Xxx 0 President, White Mountain
00 Xxxx Xxxxx Xxxx Xxxxxx, Xx.
Xxxxxx, XX 00000 42,439
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Xxxxxxx X. Xxxxxx XX Xxx 000 Xxxxxxx Xxxxxxx, Xxxx &
Xxxxxx, XX 00000 Country Motor Inn 3,072
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Xxxx X. Xxxxx XX Xxx 000 President, Xxxxx Insurance
00 Xxxx Xxxxxx Agency, Inc.; President,
Xxxxxxxx, XX 00000 Central Square Insurance, Inc. 22,708
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Brien X. Xxxx XX Xxx 0 Xxxxxxxx
00 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 167
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Xxxxxxx X. Xxxxxxxx 0 Xxxx Xxxxxx Chairman of the Board,
Xxxxxx, XX 00000 President, Chief Executive
Officer, Xxxxxxxx Financial,
Inc. and The Berlin City
Bank; Chief Executive Officer
and President, The
Pemigewasset National Bank of
Plymouth, New Hampshire 89,088
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