AGREEMENT AND PLAN OF MERGER
AGREEMENT and PLAN OF MERGER, dated this 5th day of September, 1996 (the
"Plan"), by and among United Valley Bancorp, Inc. ("UVHC"), United Valley Bank
("United Valley"), JeffBanks, Inc. ("JBI") and JeffBanks Acquisitioncorp., Inc.
("JBI Merger Sub").
RECITALS:
A. UVHC: UVHC is a corporation, duly organized and validly existing in
good standing under the laws of the Commonwealth of Pennsylvania, with its
headquarters located in Philadelphia, Pennsylvania. UVHC's authorized capital
stock consists of 6,000,000 shares of Class A common stock, $2.50 par value per
share ("UVHC Class A Common Stock") and 500,000 shares of Class B Common Stock,
$2.50 par value per share ("UVHC Class B Common Stock") (collectively the UVHC
Class A Common Stock and UVHC Class B Common Stock are referred to as "UVHC
Common Stock"). As of the date hereof, there are outstanding (i) 2,210,261
shares of UVHC Class A Common Stock, (ii) no shares of UVHC Class B Common Stock
and (iii) warrants to purchase 753,335 shares of UVHC Class A Common Stock at an
exercise price of $4.00 per share.
B. United Valley: United Valley is a banking corporation, duly
authorized and validly existing in good standing under the laws of the
Commonwealth of Pennsylvania, with its headquarters located in Philadelphia,
Pennsylvania. United Valley's authorized capital stock consists of 6,000,000
shares of Class A Common Stock, $2.50 par value per share ("United Valley Class
A
Common Stock") and 500,000 shares of Class B Common Stock, $2.50 par value per
share ("United Valley Class B Common Stock") (collectively the United Valley
Class A Common Stock and the United Valley Class B Common Stock are referred to
as the "United Valley Common Stock"). As of the date hereof, there are
outstanding (i) 2,210,261 shares of United Valley Class A Common Stock, all of
which are owned by UVHC, and (ii) no shares of United Valley Class B Common
Stock.
C. JBI: JBI is a corporation duly organized and validly existing in
good standing under the laws of the Commonwealth of Pennsylvania with its
principal executive offices located in Philadelphia, Pennsylvania. JBI's
authorized capital stock consists of 10,000,000 shares of common stock, $1.00
par value per share ("JBI Common Stock"). As of the date hereof, there are
outstanding 3,957,198 shares of JBI Common Stock.
D. JBI Merger Sub: JBI Merger Sub is a corporation duly organized and
validly existing in good standing under the laws of the Commonwealth of
Pennsylvania with its principal executive offices located in Philadelphia,
Pennsylvania. JBI Merger Sub's authorized capital stock consists of 100 shares
of Common Stock, $.01 par value per share ("JBI Merger Sub Common Stock"). As of
the date hereof, there are outstanding 100 shares of JBI Merger Sub Common
Stock, all of which are owned by JBI.
E. Merger and Bank Acquisition: Pursuant to this Plan, the parties have
agreed that JBI will acquire UVHC and United Valley by means of a merger of JBI
Merger Sub with and into UVHC
-2-
(the "Merger") as a result of which UVHC will become a direct wholly-owned
subsidiary of JBI and United Valley will become a second-tier subsidiary of JBI
(the "Bank Acquisition").
F. Approvals: The Board of Directors of each of UVHC, United Valley,
JBI and JBI Merger Sub has approved, at meetings of each of such Boards of
Directors, this Plan and has authorized the execution hereof in counterparts.
G. Fairness Opinion: UVHC has received the written opinion of Xxxxxxxxx
Associates, Inc., in form and substance satisfactory to UVHC, as to the fairness
of the Merger and Bank Acquisition to the shareholders of UVHC from a financial
point of view.
In consideration of their mutual premises and obligations, the parties
hereto, intending to be legally bound, adopt and make this Plan and prescribe
the terms and conditions hereof and the manner and basis of carrying it into
effect, which shall be as follows:
I. THE MERGER AND BANK ACQUISITION.
In the event that all of the conditions set forth in Article VI hereof have been
satisfied or waived:
(A) The Continuing Corporation. On the Merger Effective Date (as
hereinafter defined), JBI Merger Sub shall merge with and into UVHC, the
separate existence of JBI Merger Sub shall cease and UVHC (sometimes hereinafter
referred to as the "Continuing Corporation") shall survive. The name of the
-3-
continuing Corporation shall be "JeffBanks Acquisitioncorp., Inc."
(B) Rights, Etc. Upon consummation of the Merger, the Continuing
Corporation shall thereupon and thereafter possess all of the rights,
privileges, immunities and franchises, of a public as well as of a private
nature, of UVHC and JBI Merger Sub; and all property, real, personal and mixed
and all debts due on whatever account, and all other choses in action, all and
every other interest of or belonging to or due to each of the corporations so
merged, shall be deemed to be vested in the Continuing Corporation without
further act or deed; and the title to any real estate or any interest therein,
vested in any of such corporations, shall not revert or be in any way impaired
by reason of the Merger as provided by the laws of the Commonwealth of
Pennsylvania.
(C) Liabilities. Upon consummation of the Merger, the Continuing
Corporation shall thenceforth be responsible and liable for all the liabilities,
obligations and penalties of each of the corporations so merged.
(D) Articles of Incorporation; Bylaws; Directors; Officers. The
Articles of Incorporation and Bylaws of the Continuing Corporation shall be
those of JBI Merger Sub, as in effect immediately prior to the Merger Effective
Date (as hereinafter defined). The directors and officers of JBI Merger Sub in
office immediately prior to the Merger Effective Date shall be the directors and
officers of the Continuing Corporation, together
-4-
with such additional directors and officers as may thereafter be elected, who
shall hold office until such time as their successors are elected and qualified.
On or before the Merger Effective Date, JBI shall cause the election or
appointment of two (2) of the directors of United Valley in office immediately
prior to the Merger Effective Date as additional directors of JBI and three (3)
of the directors of United Valley in office immediately prior to the Merger
Effective Date as additional directors of Jefferson Bank, ("Jefferson"), a
wholly-owned subsidiary of JBI. The individuals elected or appointed as
directors of JBI may be the same or different from those individuals elected or
appointed as directors of Jefferson.
(E) Merger Effective Date; Closing. The Merger shall become effective
upon the filing and acceptance of articles of merger by the Pennsylvania
Department of State (the "Merger Effective Date") which such articles of merger
shall be filed within ten (10) days after satisfaction of all conditions set
forth in Article VI, including, without limitation, the receipt of the
regulatory approvals referred to in Paragraphs (B) and (C) thereof unless
otherwise agreed to in writing by the parties hereto. All documents required by
the terms of this Plan to be delivered at or prior to consummation of the Merger
shall be exchanged by the parties at the closing of the Merger, which shall take
place contemporaneously with the closing of the Bank Acquisition (the
"Closing"), and which shall be held on the Merger Effective Date at the offices
of Jefferson, 1609 Walnut
-5-
Street, Philadelphia, Pennsylvania (or at such other location as may be mutually
agreed upon) at 10:00 a.m.
(F) Other Matters: Notwithstanding any term of this Plan to the
contrary, JBI may, in its discretion at any time prior to the Merger Effective
Date, designate a direct or indirect wholly-owned subsidiary to substitute for
JBI Merger Sub as a constituent corporation in the Merger by written notice to
UVHC so long as the exercise of this right does not materially adversely affect
the interests of the UVHC shareholders, or cause a material delay in
consummation of the transactions contemplated herein. JBI shall also have the
right to cause JBI Merger Sub or such substitute, to be the surviving
corporation of the Merger, so long as the exercise of such right does not have a
material adverse effect on the interests of the holders of the capital stock of
UVHC, or cause a material delay in, or otherwise adversely affect, consummation
of the transactions described herein. Nothing in this Plan shall be deemed to
restrict the ability of JBI or any of its subsidiaries to merge with or with and
into another entity so long as no such other transaction shall have a Material
Adverse Effect on the parties' ability to consummate the Bank Acquisition or
cause a material delay in, or otherwise adversely affect, consummation of the
transactions contemplated herein.
-6-
II. MERGER CONSIDERATION.
(A) Outstanding JBI Common Stock. The shares of JBI Common Stock issued
and outstanding immediately prior to the Merger Effective Date shall, on and
after the Merger Effective Date, remain issued and outstanding shares of JBI
Common Stock.
(B) Outstanding UVHC Common Stock. On the Merger Effective Date, each
share of UVHC Common Stock (excluding shares owned by UVHC) issued and
outstanding immediately prior to the Merger Effective Date shall, by virtue of
the Merger, automatically and without any action on the part of the holder
thereof, become and be converted into the right to receive .339 shares (subject
to possible adjustment as set forth in Article II, Paragraph I (the "Exchange
Ratio")) of JBI Common Stock. Any shares of UVHC Common Stock owned by UVHC
shall be canceled and retired upon the Merger Effective Date and no
consideration shall be issued in exchange therefor.
(C) Outstanding Shares of JBI Merger Sub. The shares of JBI Merger Sub
Common Stock issued and outstanding immediately prior to the Merger shall, by
virtue of and after the Merger, be converted into and thereafter constitute the
issued and outstanding shares of the capital stock of the Continuing
Corporation.
(D) Outstanding Shares of United Valley. The shares of United Valley
Common Stock issued and outstanding immediately prior to the Merger shall, on
and after the Merger, remain issued and outstanding shares of United Valley
Common Stock.
-7-
(E) Shareholder Rights; Stock Transfers. On the Merger Effective Date,
holders of UVHC Common Stock shall cease to be, and shall have no rights as,
shareholders of UVHC, other than to receive the Merger consideration provided
under Paragraph (B) above and Paragraph (F) below. After the Merger Effective
Date, there shall be no transfers on the stock transfer books of UVHC or the
Continuing Corporation of the shares of UVHC Common Stock which were issued and
outstanding immediately prior to the Merger Effective Date.
(F) Fractional Shares. Notwithstanding any other provision hereof, no
fractional shares of JBI Common Stock, and no certificates or scrip therefor, or
other evidence of ownership thereof, will be issued in the Merger. Instead, JBI
shall pay to each holder of UVHC Common Stock who would otherwise be entitled to
a fractional share of JBI Common Stock an amount in cash determined by
multiplying such fractional share of JBI Common Stock by the Index Price (as
hereinafter defined). As used herein, the term "Index Price" shall mean the
average of the daily closing prices for JBI Common Stock on the Nasdaq National
Market System ("Nasdaq NMS") for the twenty (20) consecutive full trading days
ending at the close of trading on the business day immediately prior to the
Merger Effective Date.
(G) Exchange Procedures. As promptly as practicable after the Merger
Effective Date, JBI shall send or cause to be sent to each former shareholder of
record of UVHC immediately prior to the Merger Effective Date transmittal
materials for use in
-8-
exchanging such shareholder's certificates of UVHC Common Stock for the
consideration set forth in Paragraphs (B) and (F) above. Any fractional share
checks which a UVHC shareholder shall be entitled to receive in exchange for
such shareholder's shares of UVHC Common Stock, and any dividends paid on any
shares of JBI Common Stock that such shareholder shall be entitled to receive
prior to the delivery to Xxxxx Xxxxxx Securities Transfer Company (the "Exchange
Agent") of such shareholder's certificates representing all of such
shareholder's shares of UVHC Common Stock will be delivered to such shareholder
only upon delivery to the Exchange Agent of the certificates representing all of
such shares (or indemnity satisfactory to JBI and the Exchange Agent, in their
judgement, if any of the certificates are lost, stolen or destroyed). No
interest will be paid on any such fractional share checks or dividends to which
the holder of such shares shall be entitled to receive upon such delivery. After
the Merger Effective Date, to the extent required by law, former shareholders of
record of UVHC shall be entitled to vote at any meeting of holders of JBI Common
Stock the number of whole shares of JBI Common Stock into which their respective
shares of UVHC Common Stock are converted, regardless of whether such holders
have exchanged their certificates representing UVHC Common Stock for
certificates representing JBI Common Stock in accordance with the provisions of
this Plan.
(H) Options and Warrants. Any valid option or warrant to
purchase shares of UVHC Common Stock (a "UVHC Warrant"),
-9-
outstanding and unexercised immediately prior to the Merger shall, by virtue of
the Merger, automatically and without any action on the part of the holder
thereof, (i) become and be converted into a warrant to purchase that number of
shares of JBI Common Stock as shall equal the Exchange Ratio multiplied by that
number of shares of UVHC Common Stock which such option or warrant entitled the
holder thereof to purchase, at an exercise price equal to the exercise price per
share of the UVHC Warrant divided by the Exchange Ratio; (ii) be amended to
delete the provision relating to termination of such warrant or option upon
termination of the directorship held by the warrant or option holder and (iii)
in the event that the Shelf Registration Statement (as such term is defined in
Article V, Paragraph (E) hereof) has not become effective on or before the
expiration date of any warrant, be amended to extend the expiration date of such
warrant until such date that the Shelf Registration Statement shall become
effective and for a period of thirty (30) days after notice of the effectiveness
of the Shelf Registration Statement shall be sent to the holder of the warrant
at his address as it appears on the books and records of JBI (hereinafter
collectively referred to as the "JBI Warrants"). Any JBI Warrant to purchase a
fractional share which results from application of the Exchange Ratio shall be
cancelled. The maximum number of shares of UVHC Common Stock which are issuable
upon exercise of the warrants referred to above, as of the date hereof, has been
Previously
-10-
Disclosed (as such term is defined in Paragraph H(3) of Article VIII).
(I) Anti-Dilution Provisions. In the event JBI changes the number of
shares of JBI Common Stock issued and outstanding prior to the Merger Effective
Date as a result of a stock split, stock dividend, recapitalization or similar
transaction with respect to the outstanding JBI Common Stock and the record date
therefor shall be prior to the Merger Effective Date, the Exchange Ratio shall
be proportionately adjusted.
III. ACTIONS PENDING MERGER.
After the date hereof but prior to the consummation of the Merger, without the
prior written consent or approval of the Chairman or President of JBI, neither
United Valley nor UVHC will:
(A) make, declare or pay any dividend;
(B) enter into any employment contracts with, increase the
rate of compensation of (except in accordance with existing policy consistent
with past practice), or pay or agree to pay any bonus to, any of its directors,
officers or employees, except in accordance with plans or agreements existing,
as Previously Disclosed and as in effect on the date hereof;
(C) enter into or modify (except as may be required by applicable law)
any pension, retirement, stock option, stock purchase, savings, profit sharing,
deferred compensation, consulting, bonus, group insurance, or other employee
benefit,
-11-
incentive or welfare contract, plan or arrangement, or any trust agreement
related thereto, in respect of any of its directors, officers or other
employees, including without limitation taking any action that accelerates (i)
the vesting or exercise of any benefits payable thereunder; or (ii) the right to
exercise any employee stock options outstanding thereunder.
(D) dispose of or discontinue any portion of its assets, business or
properties (except for the sale of foreclosed properties, or properties received
in lieu of foreclosure, in the ordinary course of business, consistent with past
practice), which is material to United Valley or UVHC, or merge or consolidate
with, or acquire all or any substantial portion of, the business or property of
any other entity (except for properties received through, or in lieu of,
foreclosure in the ordinary course of business, consistent with past practice);
(E) amend its Articles of Incorporation or Bylaws;
(F) take any other action or engage in any loan, deposit,
investment or other transaction not in the usual, regular and ordinary course of
business consistent with past practice, including, but not limited to, (i)
significantly changing asset liability sensitivity, (ii) making loans which are
not consistent with past practice, (iii) purchasing securities or (iv) entering
into any material contract, except for this Plan, to be performed after the date
hereof; or
(G) agree to take any of the foregoing actions.
-12-
IV. REPRESENTATIONS AND WARRANTIES.
Each of United Valley and UVHC hereby represents and warrants to JBI Merger Sub
and JBI, and each of JBI Merger Sub and JBI hereby represents and warrants to
United Valley and UVHC as follows:
(A) the facts set forth in the Recitals of this Plan with
respect to it are true and correct;
(B) the outstanding shares of it are validly issued and
outstanding, fully paid and nonassessable, and subject to no
preemptive rights;
(C) it and each of its subsidiaries is duly qualified to do business
and is in good standing in the states of the United States and foreign
jurisdictions where its ownership or leasing of property or the conduct of its
business requires it to be so qualified. It has in effect all federal, state and
local authorizations, licenses and approvals necessary for it to own or lease
its properties and assets and to carry on its business as it is now conducted;
(D) except as Previously Disclosed, in the case of United
Valley and UVHC, it does not have any subsidiaries;
(E) subject to receipt of any necessary approval by its shareholders
and the regulatory approvals referred to in Paragraphs (B) and (C) of Article
VI, this Plan has been authorized by all necessary corporate action by it and is
a valid and binding agreement of it enforceable against it in accordance with
its terms, subject to bankruptcy, insolvency, receivership, conservatorship and
other laws of general applicability relating
-13-
to or affecting creditors rights and to general equity
principles;
(F) the execution, delivery and performance of this Plan and the
consummation of the transactions contemplated hereby by it, will not constitute
(i) a breach or violation of, or a default under, any law, rule or regulation or
any judgment, decree, order, governmental permit or license, or agreement,
indenture or instrument of it or of any of its subsidiaries or to which it or
any of its subsidiaries or properties is subject or by which any of them are
bound, which breach, violation or default is reasonably likely to have, either
by itself or in the aggregate with one or more other events, occurrences or
circumstances, a Material Adverse Effect (as such term is defined in Paragraph
H(2) of Article VIII) on it, or (ii) a breach or violation of, or a default
under, its Articles of Incorporation or Bylaws; and the consummation of the
transactions contemplated by this Plan will not require any consent or approval
under any such law, rule, regulation, judgment, decree, order, governmental
permit or license or, except as Previously Disclosed, the consent or approval of
any other party to any such agreement, indenture or instrument, other than the
required approvals of applicable regulatory authorities referred to in
Paragraphs (B) and (C) of Article VI.
(G) except as Previously Disclosed, its Annual Report, for the fiscal
year ended December 31, 1995, its Quarterly Report for the fiscal quarter ended
June 30, 1996 and all other documents,
-14-
as amended prior to the date of this Plan, delivered or to be delivered to
shareholders (in each such case, a "Financial Report" or, collectively, the
"Financial Reports"), did not and will not contain any untrue statement of
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements made therein, in light of the circumstances
under which they were made, not misleading; and each of the balance sheets in or
incorporated by reference into the Financial Reports (including the related
notes and schedules thereto) fairly presents and will fairly present the
financial position of the entity or entities to which it relates as of its date
and each of the statements of income and changes in shareholders' equity and
cash flows or equivalent statements in the Financial Reports (including any
related notes and schedules thereto) fairly presents and will fairly present the
results of operations of the entity or entities to which it relates for the
periods set forth therein, in each case in accordance with generally accepted
accounting principles consistently applied to banks and bank holding companies
during the periods involved, except as may be noted therein, subject to normal
and recurring year-end audit adjustments in the case of unaudited statements;
and it has previously delivered to the other parties true and complete copies of
its Financial Reports for all periods ended after January 1, 1993 through the
date of this Plan;
(H) except as Previously Disclosed, since December 31, 1995, or, with
respect to loans, since August 31, 1996 (i) it and
-15-
each of its subsidiaries have conducted their respective businesses in the
ordinary and usual course (excluding the incurrence of expenses related to this
Plan and the transactions contemplated hereby) and (ii) no event has occurred
which, either by itself or in the aggregate with one or more other events,
occurrences or circumstances, is reasonably likely to have a Material Adverse
Effect on it;
(I) except as Previously Disclosed, no litigation, proceeding, or
controversy before any court or governmental agency is pending which, either by
itself or in the aggregate with one or more other events, occurrences or
circumstances, is reasonably likely to have a Material Adverse Effect on it and,
to the best of its knowledge, no such litigation, proceedings or controversy has
been threatened; and except as Previously Disclosed, neither it nor any of its
subsidiaries is a party to, or subject to any order, decree, agreement,
memorandum of understanding or similar arrangement with, or a commitment letter
or similar submission to, or has adopted any board resolution at the request of,
any federal, state or other government, governmental agency or authority charged
with the supervision or regulation of financial institutions or their holding
companies or the issuance of securities or engaged in the insurance of deposits
(including, without limitation, the Pennsylvania Department of Banking, the
Board of Governors of the Federal Reserve System and the Federal Deposit
Insurance Corporation (the "FDIC")) or the supervision or regulation of it or
any of its
-16-
subsidiaries or properties (collectively, the "Regulatory Authorities"); and
except as Previously Disclosed, neither it nor any of its subsidiaries has been
advised by any Regulatory Authority that such authority is contemplating issuing
or requesting (or is considering the appropriateness of issuing or requesting)
any such order, decree, agreement, memorandum of understanding, commitment
letter or similar submission or any such resolutions;
(J) except as Previously Disclosed, it and each of its subsidiaries is
in material compliance, in the conduct of its business, with all applicable
federal, state and local statutes, laws, regulations, ordinances, rules,
judgments, orders or decrees applicable thereto or to the employees conducting
such businesses, including, without limitation, the Equal Credit Opportunity
Act, the Fair Housing Act, the Community Reinvestment Act, the Home Mortgage
Disclosure Act and all other applicable fair lending laws relating to
discriminatory business practices; and except as Previously Disclosed, it and
each of its subsidiaries has all permits, licenses, authorizations, orders and
approvals of, and has made all filings, applications and registrations with, all
Regulatory Authorities that are required in order to permit them to conduct
their businesses substantially as presently conducted; all such permits,
licenses, certificates of authority, orders and approvals are in full force and
effect and, to the best of its knowledge, no suspension or cancellation of any
of them is threatened; and except as Previously Disclosed,
-17-
neither it nor any of its subsidiaries has received notification or
communication from any Regulatory Authority (i) asserting that it or any of its
subsidiaries is not in material compliance with any of the statutes,
regulations, or ordinances which such Regulatory Authority enforces or (ii)
threatening to revoke any license, franchise, permit, or governmental
authorization or (iii) threatening or contemplating revocation or limitation of,
or which would have the effect of revoking or limiting, federal deposit
insurance (nor, to its knowledge, do any grounds for any of the foregoing
exist);
(K) except as Previously Disclosed or set forth in the Financial
Reports, and except for this Plan and arrangements made in the ordinary course
of business, in the case of United Valley and UVHC only, it is not bound by any
material contract to be performed after the date hereof;
(L) except as Previously Disclosed, in the case of United Valley and
UVHC only, neither it nor any of its subsidiaries is in default under any
material contract, agreement, commitment, arrangement, lease, insurance policy,
or other instrument to which it is a party, by which its respective assets,
business, or operations may be bound or affected, or under which it or its
respective assets, business, or operations receives benefits, and there has not
occurred any event that, with the lapse of time or the giving of notice or both,
would constitute such a default;
(M) except as Previously Disclosed, in the case of UVHC
only, it and each of its subsidiaries has good and marketable
-18-
title, free and clear of any charge, mortgage, pledge, security interest,
restriction, claim, lien or encumbrance ("Liens") (other than Liens for current
taxes not yet delinquent, pledges to secure deposits or in the ordinary course
of business consistent with past practice) to all of the properties and assets,
tangible and intangible, owned by it or its subsidiaries. To the best of its
knowledge, all buildings and all fixtures, equipment and other property and
assets are held under valid leases or subleases by it or its subsidiaries
enforceable in accordance with their respective terms (except as may be limited
by bankruptcy, insolvency, receivership, conservatorship and other laws of
general applicability relating to or affecting creditors rights or by general
equity principles);
(N) all negotiations relative to this Plan and the transactions
contemplated hereby have been carried on by it and its agents directly with the
other parties hereto and their agents and no action has been taken by it that
would give rise to any valid claim against any party hereto for a brokerage
commission, finder's fee or other like payment;
(O) except as Previously Disclosed:
(1) United Valley has delivered to JBI a true and complete
copy of each "employee benefit plan" within the meaning of section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), covering
employees or former employees of it and its subsidiaries (the "Employees");
-19-
(2) all employee benefit plans of United Valley covering
Employees, to the extent subject to ERISA (the "ERISA Plans"), are in material
compliance with ERISA, except for failures to so comply which are not reasonably
likely, either by themselves or in the aggregate with one or more other events,
occurrences or circumstances, to have a Material Adverse Effect on it; each
ERISA Plan which is an "employee pension benefit plan" within the meaning of
Section 3(2) of ERISA ("Pension Plan") and which is intended to be qualified
under Section 401(a) of the Internal Revenue Code of 1986, as amended (the
"Code"), has either (a) received a favorable determination letter from the
Internal Revenue Service; or (b) is or will be the subject of an application for
a favorable determination letter, and it is not aware of any circumstances
likely to result in the revocation or denial of any such favorable determination
letter; there is no pending or, to the best of its knowledge, threatened
litigation relating to the ERISA Plans which is reasonably likely, either by
itself or in the aggregate with one or more other events, occurrences or
circumstances, to have a Material Adverse Effect on it; and neither it nor any
of its subsidiaries has engaged in a transaction with respect to any ERISA Plan
that, assuming the taxable period of such transaction expired as of the date
hereof, would subject it or any of its subsidiaries to a tax or penalty imposed
by either Section 4975 of the Code or Section 502(i) of ERISA in an amount which
is reasonably likely, individually or in the aggregate, to have a Material
Adverse Effect on it;
-20-
(3) no liability under Subtitle C or D of Title IV of ERISA
has been or is expected to be incurred by United Valley or any of its
subsidiaries with respect to any ongoing, frozen or terminated "single-employer
plan", within the meaning of Section 4001(a) (15) of ERISA, currently or
formerly maintained by any of them or any entity which is considered one
"employer" with it under Section 4001 (a) (14) of ERISA or Section 414 of the
Code (an "ERISA Affiliate"), which liability is reasonably likely to have either
by itself or in the aggregate with one or more other events, occurrences or
circumstances a Material Adverse Effect on it; United Valley and its
subsidiaries have not incurred and do not expect to incur any withdrawal
liability with respect to a multi-employer plan under Subtitle E of Title IV of
ERISA; and to the knowledge of United Valley no notice of a "reportable event"
within the meaning of Section 4043 of ERISA for which the 30-day reporting
requirement has not been waived, has been required to be filed for any Pension
Plan or the Pension Plan of an ERISA Affiliate within the 12-month period ending
on the date hereof;
(4) during the current plan year and the immediately preceding
three (3) plan years of such ERISA Plan, all contributions required to be made
under the terms of any ERISA Plan of United Valley, its subsidiaries, or an
ERISA Affiliate have been timely made; and no pension plan of United Valley, its
subsidiaries, or an ERISA Affiliate has an "accumulated funding deficiency"
(whether or not waived) within the meaning of Section 412 of the Code or Section
302 of ERISA which is reasonably
-21-
likely, either by itself or in the aggregate with one or more other events,
occurrences or circumstances, to have a Material Adverse Effect on it;
(5) under each Pension Plan of United Valley which is a
single-employer plan, as of the last day of the most recent plan year ended
prior to the date hereof, the actuarially determined present value of all
"benefit liabilities," within the meaning of Section 4001(a) (16) of ERISA (as
determined on the basis of the actuarial assumptions contained in the ERISA
Plan's most recent actuarial valuation) did not exceed the then current value of
the assets of such ERISA Plan, and there has been no material adverse change in
the financial position of such ERISA Plan since the last day of the most recent
plan year; and
(6) there are no material current or projected liabilities for
retiree health or life insurance benefits;
(P) it knows of no reason why the regulatory approvals referred to in
Paragraphs (B) and (C) of Article VI should not be obtained;
(Q) it is not a party to, or bound by any collective bargaining
agreement, contract or other agreement or understanding with a labor union or
labor organization, nor is it the subject of a proceeding asserting that it has
committed an unfair labor practice (within the meaning of the National Labor
Relations Act) or seeking to compel it to bargain with any labor organization as
to wages and conditions of employment, nor is there any strike or other labor
dispute involving it, pending or,
-22-
to the best of its knowledge, threatened, nor is it aware of any activity
involving its employees seeking to certify a collective bargaining unit or
engaging in any other organization activity;
(R) it and each of its subsidiaries has taken all requisite action
(including without limitation the making of claims and the giving of notices)
pursuant to its directors' and officers' liability insurance policy or policies
in order to preserve all rights thereunder with respect to all matters (other
than matters arising in connection with this Plan and the transactions
contemplated hereby) that are known to it;
(S) in the case of United Valley and UVHC only, it has Previously
Disclosed a list, accurate and complete in all material respects, of all loans,
extensions of credit or other assets of United Valley that are classified as of
July 31, 1996 by it (the "Asset Classification"); and no amounts of loans,
extensions of credit or other assets that are classified as of July 31, 1996 by
any regulatory examiner as "Other Assets Especially Mentioned", "Substandard",
"Doubtful," "Loss," or words of similar import are excluded from the amounts
disclosed in the Asset Classification, other than amounts of loans, extensions
of credit or other assets that were charged off by United Valley prior to July
31, 1996; and in the case of United Valley and UVHC only, the allowance for loan
and lease losses shown on its Financial Reports were, and the allowance for loan
and lease losses shown on its Financial Reports for periods ending after the
date of this Plan will be, adequate as of the
-23-
date thereof, under generally accepted accounting principles consistently
applied to banks and bank holding companies and all other applicable regulatory
requirements for all losses reasonably anticipated in the ordinary course of
business as of the date thereof based on information available as of such date;
and in the case of United Valley only, the assets comprising other real estate
owned and in-substance foreclosures included in any of its non-performing assets
are carried net of reserves at the lower of cost or market value based on
current independent appraisals or current management appraisals.
(T) except as Previously Disclosed, in the case of United Valley and
UVHC only, to the best of its knowledge, there is no person who, as of the date
of this Plan, may be deemed to be an "affiliate" of United Valley or UVHC as
that term is used in Rule 145 under the Securities Act of 1933, as amended
(together with the rules and regulations thereunder, the "Securities Act"):
(U) in the case of United Valley and UVHC only, it has taken all
necessary action to exempt the transactions contemplated by this Plan from, or
the transactions contemplated by this Plan are otherwise exempt from, any
applicable state takeover laws in effect as of the date of this Plan, including,
without limitation, the Pennsylvania Business Corporation Law. For purposes of
this Paragraph (U), Section 112 and Section 1610 of the Pennsylvania Banking
Code of 1965, as amended, are not deemed to be a state takeover law;
-24-
(V) it has taken all action so that the entering into of this Plan and
the consummation of the transactions contemplated hereby (including without
limitation the Merger) or any other action or combination of actions, or any
other transactions, contemplated hereby do not and will not (i) result in the
grant of any rights or claims that would give rise to monetary damages under the
Articles of Incorporation or Bylaws of United Valley or UVHC or under any
agreement to which United Valley or UVHC is a party, or (ii) restrict or impair
in any way the ability of JBI or JBI Merger Sub to exercise the rights granted
hereunder;
(W) except as Previously Disclosed, in the case of United Valley only,
to the best of the knowledge of UVHC or United Valley:
(1) neither United Valley nor any properties owned or operated
by United Valley has been or is in violation of or liable under any
Environmental Law, except for such violations or liabilities that, either by
themselves or in the aggregate with one or more other events, occurrences or
circumstances, would not have a Material Adverse Effect on the assets, business,
financial condition or results of operation of United Valley taken as a whole.
There are no actions, suits or proceedings, or demands, claims, notices or
investigations including, without limitation, notices, demand letters or
requests for information from any environmental agency or other person,
instituted, pending or threatened relating to the liability of any property
owned or operated by United Valley under any Environmental Law;
-25-
(2) Neither United Valley nor UVHC has received any notice,
citation, summons or order, complaint or penalty assessment by any governmental
or other entity or person with respect to a property in which it holds a
security interest or other lien for (i) any alleged violation of Environmental
Law, (ii) any failure to have any environmental permit, certificate, license,
approval, registration, and (iii) any use, possession, generation, treatment,
storage, recycling, transportation or disposal of any Hazardous Material;
(3) the following definitions apply for purposes of this
Paragraph (W): "Environmental Law" means (i) any federal, state or local law,
statute, ordinance, rule, regulation, code, license, permit, authorization,
approval, consent, legal doctrine, order, judgment, decree, injunction,
requirement or agreement with any governmental entity, relating to (a) the
protection, preservation or restoration of the environment, (including, without
limitation, air, water vapor, surface water, groundwater, drinking water supply,
surface land, subsurface land, plant and animal life or any other natural
resource), or to human health or safety, or (b) the exposure to, or the use,
storage, recycling, treatment, generation, transportation, processing, handling,
labeling, production, release or disposal of Hazardous Material, in each case as
amended and as in effect on or prior to the date of this Plan and includes,
without limitation, the Federal Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, the Superfund Amendments
-26-
and Reauthorization Act, the Federal Water Pollution Control Act of 1972, the
Federal Clean Air Act, the Federal Clean Water Act, the Federal Resource
Conservation and Recovery Act of 1976 (including the Hazardous and Solid Waste
Amendments thereto), the Federal Solid Waste Disposal and the Federal Toxic
Substances Control Act, and the Federal Insecticide, Fungicide and Rodenticide
Act, the Federal Occupational Safety and Health Act of 1970, each as amended and
as now in effect, and (ii) any common law or equitable doctrine (including,
without limitation, injunctive relief and tort doctrines such as negligence,
nuisance, trespass and strict liability) that may impose liability or
obligations for injuries or damages due to, or threatened as a result of, the
presence of or exposure to any Hazardous Material; "Hazardous Material" means
any substance presently listed, defined, designated or classified as hazardous,
toxic, radioactive or dangerous, or otherwise regulated, under any Environmental
Law, whether by type or quantity, and includes, without limitation, any oil or
other petroleum product, toxic waste, pollutant, contaminant, hazardous
substance, toxic substance, hazardous waste, special waste or petroleum or any
derivative or by-product thereof, radon, radioactive material, asbestos,
asbestos containing material, urea formaldehyde foam insulation, lead and
polychlorinated biphenyl;
(X) except as Previously Disclosed, in the case of United Valley and
UVHC only, (i) all reports and returns with respect to Taxes (as defined below)
that are required to be filed by or with
-27-
respect to it (collectively, the "Tax Returns"), have been duly filed, or
requests for extensions have been timely filed and have not expired, for all
periods immediately preceding the Merger Effective Date except to the extent
such filing is not yet due or all such failures to file, taken together, are not
reasonably likely to have either by themselves or in the aggregate with one or
more other events, occurrences or circumstances, a Material Adverse Effect on
it, and such Tax Returns were true, complete, accurate and correct in all
material respects, (ii) all taxes (which shall mean federal, state, local or
foreign income, gross receipts, windfall profits, severance, property,
production, sales, use, occupancy, license, excise, franchise, employment,
withholding or similar taxes imposed on the income, properties, operations or
activities of it, together with any interest, additions, or penalties with
respect thereto and any interest in respect of such additions or penalties,
collectively the "Taxes") shown to be due on the Tax Returns have been paid in
full on or before the due date or are being contested in good faith and
adequately reserved for on UVHC's consolidated balance sheet, (iii) the Tax
Returns have never been examined by the Internal Revenue Service, (iv) no notice
of deficiency, pending audit or assessment with respect to the Tax Returns has
been received from the appropriate state, local or foreign taxing authority, or
the period for assessment of the Taxes in respect of which such Tax Returns were
required to be filed has expired, (v) all Taxes due with respect to completed
and settled examinations have been paid
-28-
in full, (vi) no issues have been raised by the relevant taxing authority in
connection with the examination of any of the Tax Returns which are reasonably
likely to result in a determination that would have, either by themselves or in
the aggregate with one or more other events, occurrences or circumstances, a
Material Adverse Effect on it, except as reserved against in its Financial
Reports, and (vi) no waivers of statutes of limitations have been given by or
requested with respect to any Taxes of it;
(Y) it is aware of no reason why the Merger will fail to qualify (i)
for pooling-of-interests accounting treatment or (ii) as a reorganization under
Section 368(a) of the Code.
(Z) except as Previously Disclosed or pursuant to this Plan, in the
case of United Valley and UVHC only, there are no shares of United Valley or
UVHC Common Stock authorized and reserved for issuance and neither United Valley
nor UVHC has any commitment to authorize, issue, or sell any such shares or any
securities or obligations convertible into or exchangeable for, or giving any
person any right to subscribe for or acquire from such party, any such shares
and no securities or obligations representing any such rights are outstanding;
(AA) it has previously delivered to the other parties its Articles of
Incorporation and Bylaws which are true, correct and complete copies of such
documents as in effect on the date of this Plan.
(AB) in the case of JBI Merger Sub only, (i) it possesses no
assets nor is subject to any liabilities and will not acquire
-29-
assets or incur liabilities prior to the Merger Effective Date, and (ii) since
the date of its incorporation, it has not engaged in any activities other than
in connection with the consummation of the Merger and the Bank Acquisition or as
expressly contemplated by this Plan.
(AC) to the extent applicable to it, it has previously delivered to the
other parties (i) all of its annual reports on Form 10-K filed with the United
States Securities and Exchange Commission (the "SEC") since January 1, 1995 and
its annual reports to shareholders for each of the three years ended December
31, 1995, 1994 and 1993, respectively; (ii) all of its quarterly reports on Form
10-Q and current reports, if any, on Form 8-K filed with the SEC on or after
July 1, 1996; (iii) each final registration statement, prospectus or offering
circular which it has used in connection with the sale of securities since
January 1, 1995 and (iv) each definitive proxy statement distributed by it to
its shareholders since January 1, 1995. All such reports comply in all material
respects with the requirements of the Securities and Exchange Act of 1934, as
amended, and the rules and regulations thereunder, and do not contain any untrue
statement of material fact or omit to state a material fact required to be
stated therein or necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading.
-30-
V. COVENANTS.
United Valley and UVHC hereby covenant to JBI and JBI Merger Sub, and JBI and
JBI Merger Sub hereby covenant to United Valley and UVHC, that:
(A) subject to the terms and conditions of this Plan, it shall use its
best efforts in good faith to take, or cause to be taken, all actions, and to
do, or cause to be done, all things necessary, proper or desirable, or advisable
under applicable laws, as promptly as practicable so as to permit consummation
of the Merger at the earliest possible date and to otherwise enable consummation
of the transactions contemplated hereby and shall cooperate fully with the other
parties hereto, and each party shall use, and shall cause each of their
respective subsidiaries to use, its best efforts to cause to be satisfied the
conditions referred to in Article VI and to obtain all consents (governmental or
other) necessary or desirable for the consummation of the transactions
contemplated by this Plan;
(B) in the case of UVHC and United Valley only, it shall use its best
efforts to deliver to JBI on the date of this Plan irrevocable proxies from each
of the directors and executive officers of UVHC and United Valley, naming Xxxxx
X. Xxxxx, Xxxxxx X. Xxxxxx, or either of them, as the attorneys-in-fact for such
director and executive officer to vote the shares of UVHC held in his name (or
to instruct the record holder of any such shares held in nominee name for his
benefit) for approval of the Plan, the Merger and the Bank Acquisition.
-31-
(C) each shall use its best efforts in good faith and in cooperation
with the other parties to promptly prepare and file with the SEC in accordance
with the requirements of the Securities Act, a registration statement (the
"Registration Statement") in connection with the issuance of the JBI Common
Stock contemplated by this Plan (but excluding the issuance of JBI Common Stock
pursuant to the exercise of the JBI Warrants or with respect to shares of UVHC
Common Stock issued in connection with any exercise of the UVHC Warrants); each
shall use its best efforts to promptly prepare and, if required, file with the
SEC, a proxy or information statement to be mailed to the holders of JBI Common
Stock and UVHC Common Stock, respectively, and it shall call a special meeting
of the holders of such common stock to be held as soon as practicable after the
effective date of the Registration Statement for purposes of voting upon (i) in
the case of UVHC, a proposal seeking approval of this Plan and the Merger
contemplated hereby and thereby, and, subject to the fiduciary duties of the
Board of Directors of UVHC (as advised in writing by its counsel), UVHC shall
solicit and obtain a vote, of not less than 66 2/3% of all holders of UVHC
Common Stock entitled to vote, in favor of the above proposal and UVHC shall, at
JBI's request, recess or adjourn said meeting if such recess or adjournment is
deemed by JBI to be necessary or desirable; and (ii) in the case of JBI, a
proposal seeking approval of this Plan and the Merger contemplated hereby and
thereby, and, subject to the fiduciary duties of the Board of Directors of JBI
(as advised
-32-
in writing by its counsel), JBI shall solicit and obtain a vote of not less than
a majority of all votes cast by the holders of JBI Common Stock for such
proposal;
(D) in the case of JBI only: (i) it shall use its best efforts to cause
the Registration Statement to be declared effective as soon as practicable after
the filing thereof; (ii) it shall use its best efforts to obtain, prior to the
effective date of the Registration Statement, all necessary state securities
laws or "blue sky" permits and approvals, provided that JBI shall not be
required by virtue thereof to submit to general jurisdiction in any state; (iii)
when the Registration Statement or any post-effective amendment or supplement
thereto shall become effective, and at all times subsequent to such
effectiveness, up to and including the date of the meetings, such Registration
Statement and all amendments or supplements thereto, with respect to all
information set forth therein furnished by UVHC or United Valley relating to
UVHC, United Valley or their subsidiaries and by JBI relating to JBI and its
subsidiaries (a) will comply in all material respects with the provisions of the
Securities Act and any other applicable statutory or regulatory requirements,
and (b) will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements contained therein not misleading; provided however, in no event shall
any party hereto be liable for any untrue statement of a material fact or
omission to state a material fact in the Registration
-33-
Statement made in reliance upon and in conformity with, written information
concerning another party furnished by such other party specifically for use in
the Registration Statement;
(E) in the case of JBI only, it shall (a) prepare and file within ten
(10) days following the filing by JBI of its Quarterly Report on Form 10-Q for
its fiscal quarter ended June 30, 1997, a registration statement under the
Securities Act and Rule 415 thereunder (the "Shelf Registration Statement") with
respect to the offer and sale of the shares of JBI Common Stock issuable
pursuant to the JBI Warrants or issued in exchange for shares of UVHC Common
Stock issued pursuant to exercise of the UVHC Warrants; provided, however, that
JBI shall not be obligated to file the Shelf Registration Statement earlier than
six (6) months after the Merger Effective Date, but shall be obligated to file
the Shelf Registration Statement no later than nine (9) months following the
Merger Effective Date; (b) use its best efforts to cause the Shelf Registration
Statement to be declared effective as soon as practicable after the filing
thereof; and (c) use its best efforts to maintain the shelf registration in
effect for two (2) years from the effective date thereof. The provisions of this
Paragraph (E) are intended to be for the benefit of, and shall be enforceable
by, each holder of a JBI Warrant and each holder of shares of JBI Common Stock
issued in exchange for shares of UVHC Common Stock issued in connection with the
exercise of a UVHC Warrant and their respective heirs and representatives;
-34-
(F) it agrees that, unless approved by the other parties hereto in
advance, it will not issue any press release or written statement for general
circulation relating to the transactions contemplated hereby, except as
otherwise required by law or applicable stock exchange, National Association of
Securities Dealers, Inc. ("NASD") or Nasdaq NMS rule;
(G) (1) upon reasonable notice, it shall afford the other parties
hereto, and their owners, employees, counsel, accountants and other authorized
representatives, access, during normal business hours throughout the period
prior to the Merger Effective Date to all of its properties, books, contracts,
commitments and records and, during such period, it shall furnish promptly to
the other parties hereto, (i) a copy of each material report, schedule and other
document filed by it pursuant to the requirements of federal or state securities
or banking laws, and (ii) all other information concerning its business,
properties and personnel as the other parties hereto may reasonably request,
provided that no investigation pursuant to this Paragraph (G) by any party shall
affect or be deemed to modify or waive any representation or warranty made by
any other party hereto or the conditions to the obligation of the first party to
consummate the transactions contemplated by this Plan; and (2) each party hereto
will not use any information obtained pursuant to this Paragraph (G) for any
purpose unrelated to this Plan, the consummation of the transactions
contemplated hereby and, if the Merger is not consummated, will hold all
information and documents obtained
-35-
pursuant to this paragraph in confidence (as provided in Paragraph (F) of
Article VIII) unless and until such time as such information or documents become
publicly available other than by reason of any action or failure to act by such
party or as it is advised by counsel that any such information or document is
required by law or applicable stock exchange, NASD or Nasdaq NMS rule to be
disclosed, and in the event of the termination of this Plan, each party will,
upon request by the other party, deliver to the other all documents so obtained
by it or destroy such documents;
(H) in the case of United Valley and UVHC only, it shall not solicit or
encourage inquiries or proposals with respect to, or, except as required by the
fiduciary duties of the Board of Directors of United Valley or UVHC (as advised
in writing by its counsel), furnish any nonpublic information relating to or
participate in any negotiations or discussions concerning, any acquisition or
purchase of all or a substantial portion of the assets of, or a substantial
equity interest in, United Valley or UVHC or any merger or other business
combination with United Valley or UVHC other than as contemplated by this Plan
and it shall instruct its officers, directors, agents, advisors and affiliates
to refrain from doing any of the foregoing; provided that United Valley or UVHC
may communicate information about such proposal to its stockholders if and to
the extent that it is legally required to do so (as advised in writing by its
counsel); it shall notify JBI immediately if any such inquiries or
-36-
proposals are received by, or any such negotiations or discussions are sought to
be initiated with United Valley or UVHC;
(I) in the case of United Valley and UVHC only, it will cause each
person who may be deemed to be an "affiliate" of United Valley or UVHC for
purposes of Rule 145 under the Securities Act to execute and deliver to JBI on
or before the mailing of the proxy statements for the meetings referred to in
Paragraph (C) of this Article V an agreement in the form attached hereto as
Exhibit A restricting the disposition of such affiliate's shares of UVHC Common
Stock and the shares of JBI Common Stock to be received by such person in
exchange for such person's shares of UVHC Common Stock or shares of JBI Common
Stock issuable pursuant to the exercise of the JBI Warrants, as applicable;
(J) in the case of United Valley, it shall use its best efforts to make
reasonable modifications and changes to its loan, litigation and real estate
valuation policies and practices (including loan classifications and levels of
reserves) prior to the Merger Effective Date so as to be consistent on a
mutually satisfactory basis with those of JBI and generally accepted accounting
principles. United Valley shall not be required to modify or change any such
policies or practices, however, until (i) satisfaction of the conditions set
forth in Paragraph (A) of Article VI, (ii) commencement of the 30 day United
States Department of Justice review period set forth in 12 U.S.C. ss.1849;
-37-
(iii) such time as United Valley and JBI shall reasonably agree that the Merger
Effective Date will occur prior to public disclosure of such modifications or
changes in regular periodic earnings releases or periodic reports filed with any
Regulatory Authority, and (iv) such time as JBI acknowledges in writing that all
conditions to JBI's obligations to consummate the Merger (and JBI's rights to
terminate this Plan) have been waived or satisfied; provided, however, that in
all circumstances United Valley shall make such modifications and changes not
later than immediately prior to the expiration of the statutory waiting period
referred to above in clause (ii). United Valley's representations, warranties
and covenants contained in this Plan shall not be deemed to be untrue or
breached in any respect for any purpose as a consequence of any modifications or
changes undertaken solely on account of this Paragraph (J) nor will any such
modifications or changes affect or be considered in the definition of "Material
Adverse Effect" contained in Article VIII, Section H(2);
(K) in the case of JBI only, it shall use its best efforts to (i) list,
prior to the Merger Effective Date, on the Nasdaq NMS, upon official notice of
issuance, the shares of JBI Common Stock to be issued to the holders of United
Valley Common Stock pursuant to the Merger and (ii) list, prior to the effective
date of the Shelf Registration Statement, on the Nasdaq NMS, upon official
notice of issuance, the shares of JBI Common Stock to be issued to the holders
of the JBI Warrants upon exercise and sale
-38-
thereof and the shares of JBI Common Stock issued in exchange for shares of UVHC
Common Stock issued in connection with the exercise of a UVHC Warrant. The
provisions of clause (ii) of this Paragraph (K) are intended to be for the
benefit of, and shall be enforceable by, each holder of (i) a JBI Warrant and
(ii) JBI Common Stock issued in exchange for shares of UVHC Common Stock issued
in connection with the exercise of a UVHC Warrant, and their respective heirs
and representatives;
(L) in the case of United Valley and UVHC only, it shall not take any
action that would cause the transactions contemplated by this Plan to be subject
to any applicable state takeover statute in effect as of the date of this Plan
and United Valley shall take all necessary steps to exempt (or ensure the
continued exemption of) the transactions contemplated by this Plan from, or if
necessary challenge the validity or applicability of, any applicable state
takeover law, as now or hereafter in effect, including, without limitation, the
Pennsylvania Business Corporation Law;
(M) in the case of United Valley and UVHC only, it shall take all
necessary steps to ensure that the entering into of this Plan and the
consummation of the transactions contemplated hereby and thereby (including
without limitation the Merger) and any other action or combination of actions,
or any other transactions contemplated hereby or thereby do not and will not (i)
result in the grant of any rights or claims that would give rise to monetary
damages under the Articles of Incorporation or Bylaws of
-39-
United Valley or UVHC or under any agreement to which United Valley or UVHC is a
party, or (ii) restrict or impair in any way the ability of JBI or JBI Merger
Sub to exercise the rights granted hereunder;
(N) in the case of United Valley and UVHC only, it shall not adopt any
other plan or arrangement that would adversely affect in any way the rights of
JBI or JBI Merger Sub under this Plan;
(O) it undertakes and agrees to use its best efforts to cause the
Merger to be effected, including, without limitation, promptly preparing any and
all regulatory applications and disclosure documents, and to take no action
which would cause the Merger to fail to qualify for pooling-of-interests
accounting treatment;
(P) in the case of JBI, prior to the completion of the Merger, it will
advise each of the current employees of United Valley in writing that (i) it
will interview all current employees of United Valley; (ii) it will consider in
good faith continuing to employ each such employee upon the completion of the
Merger; and (iii) any employee of United Valley that is retained by JBI will be
given credit for his or her prior service with United Valley for the purposes of
determining the entitlement to and amount of (a) retirement benefits provided
under JBI's current retirement plans (and any successor thereto) and (b) the
required employer contribution for the group health insurance currently provided
by JBI;
-40-
(Q) in the case of JBI, with respect to the employment agreements of
Xxxxxx X. Xxxxx, R. Xxxxx Xxxxxx and Xxxxxx X. Xxxxxx, on or before September
30, 1996, it shall either (i) enter into a mutually acceptable amended
employment agreement or (ii) terminate such agreement as of the Merger Effective
Date;
(R) in the case of United Valley and UVHC only, it shall promptly after
the end of each fiscal quarter after the date of this Plan and on the Merger
Effective Date provide JBI with a list of all of its loans, extensions of credit
or other assets that have been classified internally or by any regulatory
examiner since the date it provided JBI with the Asset Classification; and
(S) in the case of JBI only:
(1) from and after the Merger Effective Date through the
second anniversary of the Merger Effective Date, it agrees to indemnify and hold
harmless each present and former director and officer of each of United Valley
and UVHC or its subsidiaries and each officer or employee of each of United
Valley and UVHC or its subsidiaries that is serving as a director or trustee of
another entity expressly at United Valley or UVHC's request or direction (each,
an "Indemnified Party"), against any costs or expenses (including reasonable
attorneys' fees), judgments, fines, losses, claims, damages or liabilities
(collectively, the "Costs") incurred in connection with any claim, action, suit,
proceeding or investigation, whether civil, criminal, administrative or
investigative, and whether or not the Indemnified Party is a
-41-
party thereto, arising out of matters existing or occurring at or prior to the
Merger Effective Date (including the transactions contemplated by this Plan),
whether asserted or claimed prior to, at or after the Merger Effective Date, to
the fullest extent permitted under the UVHC Articles of incorporation, the
charter of United Valley, or the bylaws of either in effect on the date hereof;
provided, however, that no Indemnified Party shall be entitled to
indemnification for Costs arising out of any matter that such Indemnified Party
had an obligation, pursuant to this Plan, to Previously Disclose to JBI and did
not so disclose;
(2) any Indemnified Party wishing to claim indemnification
under Paragraph S(1) above, upon learning of any such claim, action, suit,
proceeding or investigation, shall promptly notify JBI thereof, but the failure
to so notify shall not relieve JBI of any liability it may have hereunder to
such Indemnified Party if such failure does not materially prejudice JBI. In the
event of any such claim, action, suit, proceeding or investigation, (i) JBI
shall have the right to assume the defense thereof with counsel reasonably
acceptable to the Indemnified Party and JBI shall not be liable to such
Indemnified Party for any legal expenses of other counsel subsequently incurred
by such Indemnified Party in connection with the defense thereof, except that if
JBI does not elect to assume such defense within a reasonable time or if there
are issues which constitute conflicts of interest between JBI and the
Indemnified Party, the Indemnified Party may retain counsel satisfactory to such
-42-
Indemnified Party, and JBI shall remain responsible for the reasonable fees and
expenses of such counsel, with respect to those matters as to which a conflict
of interest exists as set forth above, promptly as statements therefor are
received; provided, however, that JBI shall be obligated pursuant to this
Paragraph S(2) to pay for only one firm of counsel for all Indemnified Parties
in any one jurisdiction with respect to any given claim, action, suit,
proceeding or investigation unless the use of one counsel for such Indemnified
Parties would present such counsel with a conflict of interest; (ii) the
Indemnified Party will reasonably cooperate in the defense of any such matter
and (iii) JBI shall not be liable for any settlement effected by an Indemnified
Party without its prior written consent, which consent may not be withheld
unless such settlement is unreasonable in light of such claims, actions, suits,
proceedings or investigations against and defenses available to, such
Indemnified Party;
(3) in the event JBI or any of its successors of assigns (1)
consolidates with or merges into any other corporation or entity and shall not
be the continuing or surviving corporation or entity of such consolidation or
merger, or (ii) transfers or conveys all or substantially all of its properties
and assets to any person or entity, then, and in each case, to the extent
necessary, proper provision shall be made so that the successors and assigns of
JBI assume the obligations set forth in this Paragraph S; and
-43-
(4) the provisions of this Paragraph S are intended to be for
the benefit of, and shall be enforceable by, each Indemnified Party and their
respective heirs and representatives.
VI. CONDITIONS TO CONSUMMATION OF THE MERGER.
Consummation of the Merger is conditioned upon:
(A) (i) approval of the Merger and the other transactions contemplated
hereby by the required vote of the shareholders of UVHC and as and to the extent
required by law, by UVHC, as the sole shareholder of United Valley, and (ii)
approval of the Merger by the shareholders of JBI and JBI Merger Sub;
(B) (i) procurement by JBI of approval by the Federal Reserve Board and
the Pennsylvania Department of Banking of the Merger and the Bank Acquisition
and the expiration of applicable statutory waiting periods relating thereto, and
(ii) procurement by Jefferson of approval by the FDIC and the Pennsylvania
Department of Banking of the Merger and the merger (immediately after
consummation of the Merger) of United Valley with and into Jefferson, with
Jefferson as the surviving entity, and the expiration of applicable statutory
waiting periods relating thereto;
(C) procurement of all other regulatory consents and approvals and
satisfaction of all other requirements prescribed by law which are necessary to
the consummation of the Merger and the Bank Acquisition;
-44-
(D) there not being in effect any order, decree or injunction of any
court or agency of competent jurisdiction that enjoins or prohibits consummation
of the Merger or the Bank Acquisition;
(E) upon the request of JBI, at least thirty (30) days prior to the
required date of receipt, receipt by JBI from Xxxxx Xxxxxxxx LLP of letters,
dated the date of or shortly prior to: (i) the mailing of the proxy statements,
(ii) the public offering of any securities by JBI prior to the Merger Effective
Date, and (iii) the Merger Effective Date, in form and substance satisfactory to
JBI, with respect to UVHC's and United Valley's consolidated financial position
and results of operations, which letters shall be based upon customary specified
procedures undertaken by such firm; and, further, receipt by JBI from Xxxxx
Xxxxxxxx LLP of a letter confirming that the Merger will be treated as a
pooling-of-interests for accounting purposes;
(F) the receipt by United Valley, UVHC and their directors and officers
of an opinion, dated the Merger Effective Date, of Ledgewood Law Firm, P.C.
counsel for JBI and Jefferson, in form and substance reasonably satisfactory to
United Valley;
(G) the receipt by JBI and its directors and officers who sign the
Registration Statement of an opinion, dated the Merger Effective Date, of Blank
Rome Xxxxxxx & XxXxxxxx, in form and substance reasonably satisfactory to JBI;
(H) (i) each of the representations and warranties
contained herein of any party being true and correct as of the
-45-
date of this Plan and upon the Merger Effective Date with the same effect as
though all such representations and warranties had been made on the Merger
Effective Date, except (x) for any such representations and warranties made as
of a specified date, which shall be true and correct as of such date, (y) as
expressly contemplated by this Plan, or (z) for representations and warranties
(other than the representations and warranties set forth in Paragraph (A) of
Article IV, which shall be true and correct in all material respects) the
inaccuracies of which relate to matters that, individually or in the aggregate,
do not materially adversely affect the Merger and the other transactions
contemplated by this Plan, and (ii) each and all of the agreements and covenants
contained herein of any party to be performed and complied with pursuant to this
Plan and the other agreements contemplated hereby prior to the Merger Effective
Date shall have been duly performed and complied with in all material respects,
and JBI and UVHC shall have received a certificate signed by the Chief Executive
Officer and the Chief Financial Officer of the other party dated the Merger
Effective Date, to such effect;
(I) the Registration Statement having become effective, no stop order
suspending the effectiveness of the Registration Statement having been issued
and no proceedings for that purpose having been initiated or threatened by the
SEC or any other regulatory authority;
-46-
(J) JBI having received all state securities laws and "blue sky"
permits and other authorizations necessary in connection with the issuance of
the JBI Common Stock as set forth in the Registration Statement and to otherwise
consummate the Merger;
(K) JBI and UVHC having received an opinion from Blank Rome Xxxxxxx &
XxXxxxxx to the effect that the Merger constitutes a reorganization under
Section 368 of the Code, which such opinion may rely upon factual
representations contained in certificates of officers of JBI, JBI Merger Sub,
UVHC, United Valley and others;
(L) the shares of JBI Common Stock issuable pursuant to the Merger
having been approved for listing on Nasdaq NMS, subject to official notice of
issuance;
(M) approval of the Merger and the other transactions contemplated
hereby by not less than the minimum stockholder vote required by applicable laws
or governing instrument by the shareholders of each of UVHC, United Valley, JBI
and JBI Merger Sub;
(N) INTENTIONALLY OMITTED;
(O) the sum of (i) the number of shares of UVHC Common Stock as to
which dissenters' rights have been elected, and (ii) the number of shares of
UVHC Common Stock, the conversion of
-47-
which to JBI Common Stock subsequent to the Merger would result in fractional
shares which JBI is required to purchase pursuant to Article II, Paragraph (F),
being equal to no more than ten percent (10%) of UVHC Common Stock outstanding
immediately prior to the Merger Effective Date;
(P) the election or appointment of two (2) of the directors of United
Valley in office immediately prior to the Merger Effective Date as additional
directors of JBI and three (3) of the directors of United Valley in office
immediately prior to the Merger Effective Date as additional directors of
Jefferson; and
(Q) UVHC having received the written opinion of Xxxxxxxxx Associates,
Inc., in form and substance satisfactory to UVHC, as to the fairness of the
Merger and Bank Acquisition to the shareholders of UVHC from a financial point
of view, dated as of a date not less than five (5) business days prior to the
date of mailing of the proxy statement with respect to the Merger and Bank
Acquisition.
Provided, however, a failure to satisfy any of the conditions set forth
in Paragraphs (G), (K), (N) or (O) of this Article VI shall only constitute
conditions if asserted by JBI; and a failure to satisfy any of the conditions
set forth in Paragraph (F) or (Q) of this Article VI shall only constitute
conditions if asserted by UVHC.
-48-
VII. TERMINATION.
This Plan may be terminated prior to the Merger Effective Date either before or
after receipt of required shareholder approvals:
(A) by the mutual consent of JBI and UVHC, if the Board of
Directors of each so determines by vote of a majority of the
members of its entire Board;
(B) by JBI or UVHC, if its Board of Directors so determines by vote of
a majority of the members of its entire Board, in the event of (i) a breach by
the other party of any representation or warranty contained herein, which breach
has not been cured within thirty (30) days after the giving of written notice to
the breaching party of such breach and which breaches, individually or in the
aggregate, materially adversely affect the Merger and the other transactions
contemplated by this Plan, (ii) a material breach by the other party of any of
the covenants or agreements contained herein, which breach has not been cured
within thirty (30) days after the giving of written notice to the breaching
party of such breach;
(C) by JBI or UVHC, if its Board of Directors so determines by vote of
a majority of the members of its entire Board, in the event that the Merger is
not consummated by June 30, 1997; provided, however, that such date may be
extended by an agreement in writing among the parties hereto approved by their
respective Boards of Directors and executed in the same manner as this Plan;
(D) by JBI or UVHC, if its Board of Directors so determines
by a vote of a majority of the members of its entire Board, in
-49-
the event that any shareholder approval contemplated by Paragraph (A) of Article
VI is not obtained at a meeting or meetings called for the purpose of obtaining
such approval; or
(E) by JBI, (i) if the sum of (a) the number of shares of UVHC Common
Stock as to which dissenters' rights have been elected, and (b) the number of
shares of UVHC Common Stock, the conversion of which to JBI Common Stock
subsequent to the Merger would result in fractional shares which JBI is required
to purchase pursuant to Article II, Paragraph (F), shall equal more than ten
percent (10%) of UVHC Common Stock outstanding immediately prior to the Merger
Effective Date, or (ii) a breach by UVHC of the covenant contained in Article V,
Paragraph B.
VIII. OTHER MATTERS.
(A) Survival. If the Merger Effective Date occurs, the agreements of
the parties in Paragraphs (E) and (K) of Article V and Paragraphs (A), (C), (D),
(F), (G), and (I) of this Article VIII shall survive the Merger Effective Date;
all other representations, warranties, agreements and covenants contained in
this Plan shall be deemed to be conditions of the Merger and shall not survive
the Merger Effective Date. If this Plan is terminated prior to the Merger
Effective Date, the agreements and representations of the parties in Paragraph
(N) of Article IV, Paragraph (G)(2) of Article V and Paragraphs (A), (D), (E),
(F) and (I) of this Article VIII shall survive such termination.
-50-
(B) Waiver or Amendment. Prior to the Merger Effective Date, any
provision of this Plan may be (i) waived by the party benefitted by the
provision, or (ii) amended or modified at any time (including the structure of
the transaction), by an agreement in writing among the parties hereto approved
by their respective Boards of Directors and executed in the same manner as this
Plan, except that, after the vote by the shareholders of UVHC, the consideration
to be received by the shareholders of UVHC for each share of UVHC Common Stock
shall not thereby be decreased.
(C) Counterparts. This Plan may be executed in one or more
counterparts, each of which shall be deemed to constitute an original. This Plan
shall become effective when one counterpart has been signed by each party
hereto.
(D) Governing Law. This Plan shall be governed by, and interpreted in
accordance with, the substantive laws of the Commonwealth of Pennsylvania
without regard to its principles of conflicts of laws, except as federal law may
be applicable.
(E) Expenses. Each party hereto will bear all expenses incurred by it
in connection with this Plan and the transactions contemplated hereby, except
printing expenses of the Registration Statement which shall be shared equally
between UVHC and JBI.
(F) Confidentiality. Except as otherwise provided in Paragraph (G)(2)
of Article V, each of the parties hereto and their respective agents, attorneys
and accountants will maintain
-51-
the confidentiality of all information provided in connection herewith which has
not been publicly disclosed.
(G) Notices. All notices, requests and other communications hereunder
to a party shall be in writing and shall be deemed to have been duly given when
delivered by hand, telegram or telex (confirmed in writing) to such party at its
address set forth below or such other address as such party may specify by
notice to the parties hereto:
If to JBI or JBI Xxxxx X. Xxxxx, Chairman
Merger Sub, to: and Chief Executive Officer
JeffBanks, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
With, in each X. Xxxx Xxxxxxxxxx, Esq.
instance, a copy to: Ledgewood Law Firm, P.C.
0000 Xxxxxx Xxxxxx - 0xx Xxxxx
Xxxxxxxxxxxx, XX 00000
If to UVHC or Xxxxxx X. Xxxxx, President
United Valley, to: United Valley Bank
0000 Xxxxxx Xxxxxx - 0xx Xxxxx
Xxxxxxxxxxxx, XX 00000
With, in each Xxxxxxxx Xxxxxxx, Esq.
instance, a copy to: Blank Rome Xxxxxxx & XxXxxxxx
Four Xxxx Xxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
(H) Definitions. Any term defined anywhere in this Plan shall have the
meaning ascribed to it for all purposes of this Plan (unless expressly noted to
the contrary). In addition:
(1) the term "knowledge" when used with respect to a party
shall mean the knowledge, after due inquiry, of any "Executive Officer" of such
party, as such term is defined in Regulation O of the Federal Reserve Board;
-52-
(2) the term "Material Adverse Effect" shall mean (a) in the
case of United Valley only, an event, occurrence or circumstance, which
individually or in the aggregate, results, or is reasonably likely to result, in
a decrease in the shareholders' equity account of United Valley, as determined
in accordance with generally accepted accounting principles and as measured from
the United Valley June 30, 1996 Financial Reports, in an amount equal to or
greater than $500,000, including, without limitation, (i) the making of any
provisions for possible loan and lease losses, write-downs of other real estate
and taxes, (ii) operating losses and (iii) a breach of a representation or
warranty, or (b) as applied to any of the parties, a breach of a representation
or warranty which would materially impair the party's ability to perform its
obligations under this Plan or the consummation of the Merger and the other
transactions contemplated by this Plan; provided, however, that the term
Material Adverse Effect shall not be deemed to include the impact of (a) changes
in banking and similar laws of general applicability or interpretations thereof
by courts or governmental authorities; (b) changes in generally accepted
accounting principles or regulatory accounting requirements applicable to banks
and bank holding companies generally, and (c) with respect to any loan of United
Valley, pursuant to Paragraph (J) of Article V, where the financial condition of
the borrower of such loan and the value of any and all collateral securing such
loan has not materially deteriorated, any material increase
-53-
in United Valley's loan loss reserve with respect to such loan or any loan
charge off with respect to such loan or any loan charge off in an amount which,
in the view of JBI, should be reserved against possible losses on such loan or
charged off with respect to such loan; and
(3) the term "Previously Disclosed" by a party shall mean
information set forth in a written disclosure letter that is delivered by that
party to the other party contemporaneously with the execution of this Plan and
specifically designated as information "Previously Disclosed" pursuant to this
Plan; provided, however, that any information so disclosed shall specify the
provision of this Plan pursuant to which such information is being disclosed and
shall not be deemed to be disclosed pursuant to any other provision of, or for
any other purpose under, this Plan.
(I) Entire Understanding. This Plan represents the entire understanding
of the parties hereto with reference to the transactions contemplated hereby and
thereby and supersedes any and all other oral or written agreements heretofore
made. Nothing in this Plan expressed or implied, is intended to confer upon any
person, other than the parties hereto or their respective successors, any
rights, remedies, obligations or liabilities under or by reason of this Plan.
-54-
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed in counterparts by their duly authorized officers, all as of the day
and year first above written.
Attest: JEFFBANKS, INC.
/s/Xxxxxxx Xxxxx By:/s/Xxxxx X. Xxxxx
Assistant Secretary Chairman and
Chief Executive Officer
[Corporate Seal]
Attest: JEFFBANKS ACQUISITIONCORP.,
INC.
/s/Xxxxxxx Xxxxx By:/s/Xxxxx X. Xxxxx
Assistant Secretary Chairman and
Chief Executive Officer
[Corporate Seal]
Attest: UNITED VALLEY BANCORP, INC.
/s/R. Xxxxx Xxxxxx By:/s/Xxxxxx X. Xxxxx
Secretary President and
Chief Executive Officer
[Corporate Seal]
Attest: UNITED VALLEY BANK
/s/R. Xxxxx Xxxxxx By:/s/Xxxxxx X. Xxxxx
Secretary President and
Chief Executive Officer
[Corporate Seal]
-55-
FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (the "Amendment")
dated this 30th day of September, 1996 (the "Amendment"), by and among United
Valley Bancorp, Inc. ("UVHC"), United Valley Bank ("United Valley"), JeffBanks,
Inc. ("JBI") and JeffBanks Acquisitioncorp., Inc. ("JBI Merger Sub").
RECITALS
A. Pursuant to an Agreement and Plan of Merger dated September 5, 1996 (the
"Plan"), UVHC, United Valley, JBI and JBI Merger Sub agreed that JBI will
acquire UVHC and United Valley by means of a merger of JBI Merger Sub with and
into UVHC (the "Merger") as a result of which UVHC will become a direct
wholly-owned subsidiary of JBI and United Valley will become a second-tier
subsidiary of JBI (the "Bank Acquisition").
B. The parties hereto wish to amend the Plan as hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Capitalized terms not otherwise defined herein shall have the same
meanings as set forth in the Plan.
2. Article I, Paragraph D of the Plan is hereby amended and restated in its
entirety to read as follows:
(D) Articles of Incorporation; Bylaws; Directors; Officers. The Articles of
Incorporation and Bylaws of the Continuing Corporation shall be those of
JBI Merger Sub, as in effect immediately prior to the Merger Effective Date
(as hereinafter defined). The directors and officers of UVHC in office
immediately prior to the Merger Effective Date shall be the directors and
officers of the Continuing Corporation, together with such additional
directors and officers as may thereafter be elected, who shall hold office
until such time as their successors are elected and qualified. On or before
the Merger Effective Date, JBI shall cause the election or appointment of
two (2) of the directors of United Valley in office immediately prior to
the Merger Effective Date as additional directors of JBI and three (3) of
the directors of United Valley in office immediately prior to the Merger
Effective Date as additional directors of Jefferson Bank, ("Jefferson"), a
wholly-owned subsidiary of JBI. The individuals elected or appointed as
directors of JBI may be the same or different from those individuals
elected or appointed as directors of Jefferson.
3. Article II, Paragraph H of the Plan is hereby amended and restated in
its entirety to read as follows:
(H) Options and Warrants. Any valid option or warrant to purchase shares of
UVHC Common Stock (a "UVHC Warrant"), outstanding and unexercised
immediately prior to the Merger shall, by virtue of the Merger,
automatically and without any action on the part of the holder thereof
become and be converted into a warrant to purchase that number of shares of
JBI Common Stock as shall equal the Exchange Ratio multiplied by that
number of shares of UVHC Common Stock which such option or warrant entitled
the holder thereof to purchase, at an exercise price equal to the exercise
price per share of the UVHC Warrant divided by the Exchange Ratio
(hereinafter collectively referred to as the "JBI Warrants"). Any JBI
Warrant to purchase a fractional share which results from application of
the Exchange Ratio shall be cancelled. The maximum number of shares of UVHC
Common Stock which are issuable upon exercise of the warrants referred to
above, as of the date hereof, has been Previously Disclosed (as such term
is defined in Paragraph H(3) of Article VIII).
4. Article V, Paragraph (C) of the Plan is hereby amended and restated in
its entirety to read as follows:
(C) each shall use its best efforts in good faith and in cooperation with
the other parties to promptly prepare and file with the SEC in accordance
with the requirements of the Securities Act, a registration statement (the
"Registration Statement") in connection with the issuance of the JBI Common
Stock contemplated by this Plan, including the shares of JBI Common Stock
(x) issuable pursuant to the exercise of any JBI Warrant which has an
expiration date on or before September 19, 1997 or (y) issued in exchange
for shares of UVHC Common Stock issued pursuant to exercise of any UVHC
Warrant which has an expiration date on or before September 19, 1997 (but
excluding the issuance of JBI Common Stock issuable pursuant to the
exercise of any JBI Warrant with an expiration date on or after September
20, 1997 or with respect to shares of UVHC Common Stock issued in
connection with any exercise of any UVHC Warrant with an expiration date on
or after September 20, 1997); each shall use its best efforts to promptly
prepare and, if required, file with the SEC, a proxy or information
statement to be mailed to the holders of JBI Common Stock and UVHC Common
Stock, respectively, and it shall call a special meeting of the holders of
such common stock to be held as soon as practicable after the effective
date of the Registration Statement for purposes of voting upon (i) in the
case of UVHC, a proposal seeking approval of this Plan and the Merger
contemplated hereby and thereby, and, subject to the fiduciary duties of
the Board of Directors of UVHC (as advised in writing by its counsel), UVHC
shall solicit and obtain a vote, of not less than 66 2/3% of all holders of
UVHC Common Stock entitled to vote, in favor of the above proposal and UVHC
shall, at JBI's request, recess or adjourn said meeting if such recess or
adjournment is deemed by JBI to be necessary or desirable; and (ii) in the
case of JBI, a proposal seeking approval of this Plan and the Merger
contemplated hereby and thereby, and, subject to the fiduciary duties of
the Board of Directors of JBI (as advised in writing by its counsel), JBI
shall solicit and obtain a vote of not less than a majority of all votes
cast by the holders of JBI Common Stock for such proposal;
5. Article V, Paragraph (E) of the Plan is hereby amended and restated in
its entirety to read as follows:
(E) in the case of JBI only, it shall (a) prepare and file within ten (10)
days following the filing by JBI of its Quarterly Report on Form 10-Q for
its fiscal quarter ended June 30, 1997, a registration statement under the
Securities Act and Rule 415 thereunder (the "Shelf Registration Statement")
with respect to the offer and sale of the shares of JBI Common Stock
issuable pursuant to JBI Warrants which have an expiration date on or after
September 20, 1997 or issued in exchange for shares of UVHC Common Stock
issued pursuant to exercise of UVHC Warrants which have an expiration date
on or after September 20, 1997; provided, however, that JBI shall not be
obligated to file the Shelf Registration Statement earlier than six (6)
months after the Merger Effective Date, but shall be obligated to file the
Shelf Registration Statement no later than nine (9) months following the
Merger Effective Date; (b) use its best efforts to cause the Shelf
Registration Statement to be declared effective as soon as practicable
after the filing thereof; and (c) use its best efforts to maintain the
shelf registration in effect for two (2) years from the effective date
thereof. The provisions of this Paragraph (E) are intended to be for the
benefit of, and shall be enforceable by, each holder of a JBI Warrant with
an expiration date on or after September 20, 1997 and each holder of shares
of JBI Common Stock issued in exchange for shares of UVHC Common Stock
issued in connection with the exercise of a UVHC Warrant with an expiration
date on or after September 20, 1997, and their respective heirs and
representatives;
6. Article V, Paragraph (K) of the Plan is hereby amended and restated in
its entirety to read as follows:
(K) in the case of JBI only, it shall use its best efforts to (i) list,
prior to the Merger Effective Date, on the Nasdaq NMS, upon official notice
of issuance, the shares of JBI Common Stock to be issued to the holders of
United Valley Common Stock pursuant to the Merger, including (x) the shares
of JBI Common Stock to be issued to the holders of the JBI Warrants which
have an expiration date on or before September 19, 1997 or (y) the shares
of JBI Common Stock to be issued in exchange for shares of UVHC Common
Stock issued in connection with the exercise of any UVHC Warrant which has
an expiration date on or before September 19, 1997 and (ii) list, prior to
the effective date of the Shelf Registration Statement, on the Nasdaq NMS,
upon official notice of issuance, the shares of JBI Common Stock to be
issued to the holders of the JBI Warrants, upon exercise and sale thereof,
which have expiration dates on or after September 20, 1997 and the shares
of JBI Common Stock issued in exchange for shares of UVHC Common Stock
issued in connection with the exercise of a UVHC Warrant with an expiration
date on or after September 20, 1997. The provisions of clause (ii) of this
Paragraph (K) are intended to be for the benefit of, and shall be
enforceable by, each holder of (i) a JBI Warrant with an expiration date on
or after September 20, 1997 and (ii) JBI Common Stock issued in exchange
for shares of UVHC Common Stock issued in connection with the exercise of a
UVHC Warrant with an expiration date on or after September 20, 1997, and
their respective heirs and representatives;
7. Article V, Paragraph T is hereby added to the Plan and reads as follows:
(T) in the case of JBI only, it shall (i) not dissolve, liquidate,
consolidate, merge or sell the Continuing Corporation from the Merger
Effective Date until the date that all of the JBI Warrants have either been
exercised or have expired pursuant to their terms and (ii) cause each
director, officer and special advisor of UVHC in office immediately prior
to the Merger Effective Date to continue as a director, officer or special
advisor of the Continuing Corporation from the Merger Effective Date until
the date that such director, officer or special advisor has either
exercised all of his or her JBI Warrants or his or her JBI Warrants have
expired pursuant to their terms.
8. Article VI, Paragraph (L) of the Plan is hereby amended and restated in
its entirety to read as follows:
(L) the shares of JBI Common Stock issuable pursuant to the Merger,
including the shares of JBI Common Stock (x) issuable pursuant to the
exercise of any JBI Warrant which has an expiration date on or before
September 19, 1997 or (y) issued in exchange for shares of UVHC Common
Stock issued pursuant to exercise of any UVHC Warrant which has an
expiration date on or before September 19, 1997, having been approved for
listing on Nasdaq NMS, subject to official notice of issuance;
9. Article VIII, Paragraph (A) of the Plan is hereby amended and restated
in its entirety to read as follows:
(A) Survival. If the Merger Effective Date occurs, the agreements of the
parties in Paragraphs (E), (K) and (T) of Article V and Paragraphs (A),
(C), (D), (F), (G), and (I) of this Article VIII shall survive the Merger
Effective Date; all other representations, warranties, agreements and
covenants contained in this Plan shall be deemed to be conditions of the
Merger and shall not survive the Merger Effective Date. If this Plan is
terminated prior to the Merger Effective Date, the agreements and
representations of the parties in Paragraph (N) of Article IV, Paragraph
(G)(2) of Article V and Paragraphs (A), (D), (E), (F) and (I) of this
Article VIII shall survive such termination.
10. Except as amended hereby, the Plan shall remain in full force and
effect and unmodified.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed in counterparts by their duly authorized officers, all as of the day
and year first above written.
Attest: JEFFBANKS, INC.
/s/Xxxxxxx Xxxxx By:/s/Xxxxx X. Xxxxx
Assistant Secretary Chairman and
Chief Executive Officer
[Corporate Seal]
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
Attest: JEFFBANKS ACQUISITIONCORP., INC.
/s/Xxxxxxx Xxxxx By:/s/Xxxxx X. Xxxxx
Assistant Secretary Chairman and
Chief Executive Officer
[Corporate Seal]
Attest: UNITED VALLEY BANCORP, INC.
/s/R. Xxxxx Xxxxxx By:/s/Xxxxxx X. Xxxxx
Secretary President and
Chief Executive Officer
[Corporate Seal]
Attest: UNITED VALLEY BANK
/s/R. Xxxxx Xxxxxx By:/s/Xxxxxx X. Xxxxx
Secretary President and
Chief Executive Officer
[Corporate Seal]
