Form of Voting Agreement
Form of Voting
Agreement
Exhibit
10.2
December
5, 2008
000 X.
Xxxxxxxxxx Xxxxxx
Xxxxxxxx,
XX 00000
Attn;
President and Chief Executive Officer
Ladies
and Gentlemen:
Penseco
Financial Services Corporation, a Pennsylvania corporation (“Penseco”), its
wholly-owned subsidiary, Penn Security Bank and Trust Company, a Pennsylvania
commercial bank and trust company (“Penn Security”) and Old Forge Bank, a
Pennsylvania commercial bank (“Old Forge”) have entered into an Agreement and
Plan of Merger dated as of December 5, 2008 (the “Merger Agreement”). pursuant
to which, subject to the terms and conditions set forth therein, Old Forge, in a
two-step transaction, will merge with and into Penn Security (the “Merger”).
Penseco has requested, as a condition to its execution. and delivery of the
Merger Agreement, that the undersigned, a shareholder of Old Forge. execute and
deliver to Penseco this Letter Agreement.
The
undersigned, solely in his, her or its capacity as a shareholder of Old Forge,
in order to induce Penseco to execute and deliver the Merger Agreement, and
intending to be legally bound, hereby irrevocably:
a. Agrees
to be present (in person or by proxy) at all meetings of shareholders of Old
Forge called to vote for approval of the Merger so that all shares of common
stock of Old Forge which are owned by the undersigned and/or his or her spouse,
or over which the undersigned and/or his or her spouse have actual voting
control (collectively, the “Covered Shares”) will be counted present thereat for
the purpose of determining the presence of a quorum at such meetings and to vote
the Covered Shares, or cause the Covered Shares to be voted, in person or by
proxy, in favor of approval and adoption of the Merger Agreement and the
transactions contemplated thereby (including any amendments or modifications of
the terms thereof approved by the board of directors of Old Forge and any other
action of Old Forge’s shareholders requested in furtherance thereof). The term
“Covered Shares” shall include any shares of common stock of Old Forge acquired
after the date hereof;
b. Agrees
not to vote the Covered Shares, or cause the Covered Shares not to be voted, to
rescind or amend in any manner any prior vote approving or adopting the Merger
Agreement;
c. Agrees
to vote the Covered Shares, or cause the Covered Shares to be voted, against, as
a shareholder of Old Forge, (i) any (A) extraordinary corporate transaction,
such as a merger, consolidation or other business combination involving Old
Forge, including an Alternative Proposal (as defined in the Merger Agreement),
(B) sale, lease, sublease, license, sublicense or transfer of a material portion
of the rights or other assets of Old Forge, (C) change in a majority of the
board of directors of Old Forge, (D) amendment to Old Forge’s articles of
incorporation or bylaws, (E) material change in the capitalization of Old Forge
or Old Forge’s
corporate
structure, or (F) any other action which is intended, or could reasonably be
expected, to impede, interfere with, delay, postpone, discourage or adversely
affect the Merger or any of the other transactions contemplated by the Merger
Agreement or this Letter Agreement. and (ii) any action or agreement that would
result in a breach of any representation warranty, covenant or agreement of Old
Forge contained in the Merger Agreement or that would result in any of the
conditions to the obligations of Old Forge under the Merger Agreement not being
fulfilled;
d. (i)
Hereby revokes any and all previous proxies granted with respect to the Covered
Shares and grants to the president of Penseco a proxy to vote the Covered Shares
(in the event the undersigned fails to vote the Covered Shares in accordance
with this Letter Agreement) as indicated in Sections (b) and (c) above (which
proxy shall be limited to the matters set forth in Sections (b) and (c)); (ii)
intends that such proxy will be irrevocable and coupled with an interest, and
shall not be terminated by any act of the undersigned or by operation of law,
and (iii) agrees to take such further action or execute such other instruments
as may be necessary to effectuate the intent of this proxy; provided that such
proxy will expire automatically and without further action by the parties upon
termination of the Merger Agreement or this Letter Agreement;
e. Agrees
not to sell, transfer or otherwise dispose or limit its right; to vote in any
manner any of the Covered Shares, or grant any proxy to vote the Covered Shares
otherwise than in accordance with this Letter Agreement unless otherwise agreed
to in writing by Penseco;
f. Subject
to paragraph (k) below, agrees not to, directly or indirectly, through any
officer, director, employee, investment banker, financial advisor, attorney,
accountant or other representative of any of them or otherwise, initiate,
solicit or encourage, including by way of furnishing non-public information or
assistance, or participate in any discussion or negotiations of any type,
directly or indirectly, or enter into a confidentiality agreement, letter of
intent or purchase agreement, merger agreement or other similar agreement with
any Person (as defined in the Merger Agreement) other than Penseco and Penn
Security with respect to the Merger Agreement and the transactions contemplated
thereby. The undersigned and his, her or its representatives immediately shall
cease and cause to be terminated any existing activities, discussions or
negotiations with any parties other than Penseco and Penn Security with respect
to the Merger Agreement and the transactions contemplated thereby;
g. Represents
that the undersigned has the capacity to enter into this Letter Agreement and
that it is a valid and binding obligation enforceable against the undersigned in
accordance with its terms, subject to bankruptcy, insolvency and other laws
affecting creditors’ rights and general equitable principles;
h. Agrees
that irreparable damage would occur in the event that any of the provisions of
this Letter Agreement were not performed in accordance with their specific terms
and agrees that Penseco is entitled to an injunction or injunctions to prevent
breaches of this Letter Agreement by the undersigned to enforce specifically the
terms and provisions hereof, this being in addition to any other available
remedy;
i. Agrees
to execute and deliver all such further documents, certificates and instruments
and take all such further reasonable action necessary or appropriate to
effectuate the intent of this Letter Agreement;
j. Agrees
that this Letter Agreement may not be amended except by an instrument in writing
signed by each of the undersigned and Penseco. Neither this Letter Agreement nor
any of the rights, interests or obligations of the undersigned hereunder shall
be assigned by the undersigned without the prior written consent of
Penseco;
k. Nothing
herein shall impose any obligation on the undersigned to take any action nor
omit to take action that would prevent the undersigned, if applicable, from
discharging his or her fiduciary duties as a member of the board of directors or
as an officer of Old Forge;
l. Agrees
that, in addition to any restrictions under applicable law, during the
twelve-month period from and after the effective time of the Merger, the shares
of Penseco common stock sold by or for the account of the undersigned, together
with all sales of shares of Penseco common stock sold by or for the account of
the undersigned within the three months preceding any such sale, shall not
exceed one percent of the shares of Penseco common stock outstanding as shown by
the most recent report or statement published by Penseco;
m. Agrees
that this Letter Agreement shall be construed in accordance with and governed by
the laws of the Commonwealth of Pennsylvania without regard to any applicable
principles of conflict of law; and
n. Nothing
herein shall be deemed to vest in Penseco any direct or indirect ownership or
incidence of ownership of or with respect to any shares of common stock of Old
Forge held by the undersigned.
The
obligations set forth herein shall terminate concurrently with the earlier of
(i) any termination of the Merger Agreement, (ii) the completion of the Merger,
or (iii) the withdrawal by the board of directors of Old Forge, consistent with
the terms of the Merger Agreement, of its recommendation that its shareholders
approve the Merger; provided, however, that the obligations set forth in
paragraph (1) shall survive the Merger. Upon such termination, except as set
forth in paragraph (1), no party shall have any further obligations or
liabilities hereunder; provided, however, such termination shall not relieve any
party from liability for any willful breach of this Agreement prior to such
termination.
This
Letter Agreement may be executed in two or more counterparts, each of which
shall be deemed to constitute an original, but all of which together shall
constitute one and the same Letter Agreement.
Very
truly yours,
Acknowledged
and agreed to this _____ day of December, 2008.
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