EXHIBIT 10.1
AGREEMENT OF MERGER
This Agreement of Merger is made and entered into as of June 29, 2001,
between NBT BANK, NATIONAL ASSOCIATION ("NBT Bank"), a national banking
association organized under the laws of the United States, and CENTRAL NATIONAL
BANK, CANAJOHARIE ("Central National"), a national banking association organized
under the laws of the United States. NBT Bank and Central National are
hereinafter sometimes individually called a "Constituent Association" and
collectively called the "Constituent Associations."
RECITALS
NBT Bank is a national banking association organized under the laws of
the United States. As of June 19, 2001, the authorized capital stock of NBT Bank
consisted of 5,000,000 shares of Common Stock, $5.00 par value, of which
5,000,000 shares were issued and outstanding; no shares of capital stock were
held in its treasury on such date.
Central National is a national banking association organized under the
laws of the United States. As of June 19, 2001, the authorized capital stock of
Central National consisted of 2,250,000 shares of Central National Common Stock,
$5.00 par value ("Central National Common Stock"), of which 1,173,408 shares
were issued and outstanding; no shares of capital stock were held in its
treasury on such date.
NBT Bank and Central National and their respective stockholders have
entered into an Agreement and Plan of Merger, dated June 19, 2001 (the "Plan of
Merger"), setting forth certain representations, warranties, and agreements in
connection with the transactions therein and herein contemplated, which
contemplates the merger of Central National with and into NBT Bank (the
"Merger") in accordance with this Agreement of Merger (the "Agreement").
The Boards of Directors of each of NBT Bank and Central National deem
the Merger advisable and in the best interests of each association and its
stockholders. The Boards of Directors of each of NBT Bank and Central National,
by resolutions duly adopted, have approved this Agreement. The Boards of
Directors of each of NBT Bank and Central National have directed that this
Agreement, and authorization for the transactions contemplated hereby, be
submitted to stockholders of NBT Bank and Central National respectively for
approval.
In consideration of the premises and the mutual covenants and
agreements herein contained and subject to the terms and conditions of the
Agreement, the parties hereto hereby covenant and agree as follows:
ARTICLE I
1.1. Merger of Central National into NBT Bank. Central National shall
be merged with and into NBT Bank on the date and at the time to be specified in
documentation to be filed by NBT Bank with the Comptroller of the Currency
pursuant to the National Bank Act (such date and time being referred to herein
as the "Effective Time").
1.2. Effect of the Merger. At the Effective Time:
(a) Central National and NBT Bank shall be a single
association, which shall be NBT Bank. NBT Bank is hereby designated as the
surviving association in the Merger and is hereinafter sometimes called the
"Surviving Association."
(b) The separate existence of Central National shall cease.
(c) The currently outstanding 5,000,000 shares of common stock
of NBT Bank, each of $5.00 par value, will remain outstanding as shares of the
$5.00 par value common stock of NBT Bank, and the holders of such stock shall
retain their present rights.
(d) The shares of Central National Common Stock shall be
canceled.
(e) The Surviving Association shall have all the rights,
privileges, immunities, and powers and shall assume and be subject to all the
duties and liabilities of a national banking association organized under the
National Bank Act.
(f) The Surviving Association shall thereupon and thereafter
possess all of the rights, privileges, immunities, and franchises, of a public
as well as of a private nature, of each of the Constituent Associations; and all
property, real, personal, and mixed, and all debts due on whatever account,
including subscriptions to shares and all other choses in action, and all and
every other interest of and belonging to or due to each of the Constituent
Associations shall be taken and deemed to be transferred to and vested in the
Surviving Association without further act or deed; and the title to any real
estate, or any interest therein, vested in either of the Constituent
Associations shall not revert or be in any way impaired by reason of the Merger.
(g) The Surviving Association shall thenceforth be responsible
and liable for all the liabilities and obligations of each of the Constituent
Associations; and any claim existing or action or proceeding pending by or
against either of the Constituent Associations may be prosecuted as if the
Merger had not taken place, or the Surviving Association may be substituted in
its place. The Surviving Association expressly assumes and agrees to perform all
of the liabilities and obligations of Central National. Neither the rights of
creditors nor any liens upon the property of either Constituent Association
shall be impaired by the Merger.
(h) The name of the Surviving Association shall be "NBT Bank,
National Association."
(i) The Articles of Association of NBT Bank as they exist
immediately prior to the Effective Time shall be the Articles of Association of
the Surviving Association until later amended pursuant to the laws of the United
States.
(j) The By-Laws of NBT Bank as they exist immediately prior to
the Effective Time shall be the By-Laws of the Surviving Association until later
amended pursuant to the laws of the United States.
1.3. Acts to Carry Out This Merger Plan.
(a) Central National and its proper officers and directors
shall and will do all such acts and things as may be necessary or proper to
vest, perfect, or confirm title to such property or rights in NBT Bank and
otherwise to carry out the purposes of this Agreement.
(b) If, at any time after the Effective Time, NBT Bank shall
consider or be advised that any further assignments or assurances in law or any
other acts are necessary or desirable to (i) vest, perfect, or confirm, of
record or otherwise, in NBT Bank its right, title, or interest in or under any
of the
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rights, properties, or assets of Central National acquired or to be acquired by
NBT Bank as a result of, or in connection with, the Merger, or (ii) otherwise
carry out the purposes of this Agreement, Central National and its proper
officers and directors shall be deemed to have granted to NBT Bank an
irrevocable power of attorney to execute and deliver all such proper deeds,
assignments, and assurances in law and to do all acts necessary or proper to
vest, perfect, or confirm title to and possession of such rights, properties, or
assets in NBT Bank and otherwise to carry out the purposes of this Agreement;
and the proper officers and directors of NBT Bank are fully authorized in the
name of Central National or otherwise to take any and all such action.
ARTICLE II
2.1. Counterparts. This Agreement may be executed in two or more
counterparts each of which shall be deemed to constitute an original, but such
counterparts together shall be deemed to be one and the same instrument and to
become effective when one or more counterparts have been signed by each of the
parties hereto. It shall not be necessary in making proof of this Agreement or
any counterpart hereof to produce or account for the other counterpart.
2.2. Section Headings. The section and subsection headings herein have
been inserted for convenience of reference only and shall in no way modify or
restrict any of the terms or provisions hereof. Any reference to a "person"
herein shall include an individual, firm, corporation, partnership, trust,
government or political subdivision or agency or instrumentality thereof,
association, unincorporated organization, or any other entity.
2.3. Choice of Law and Venue. This Agreement shall be governed by,
construed, and enforced in accordance with the laws of the State of Delaware,
without giving effect to the principles of conflict of law thereof. The parties
hereby designate New Castle County, Delaware to be the proper jurisdiction and
venue for any suit or action arising out of this Agreement. Each of the parties
consents to personal jurisdiction in such venue for such a proceeding and agrees
that it may be served with process in any action with respect to this Agreement
or the transactions contemplated thereby by certified or registered mail, return
receipt requested, or to its registered agent for service of process in the
State of Delaware. Each of the parties irrevocably and unconditionally waives
and agrees, to the fullest extent permitted by law, not to plead any objection
that it may now or hereafter have to the laying of venue or the convenience of
the forum of any action or claim with respect to this Agreement or the
transactions contemplated thereby brought in the courts aforesaid.
2.4. Binding Agreement. This Agreement shall be binding upon the
parties and their respective successors and assigns.
2.5. Amendment. Anything herein or elsewhere to the contrary
notwithstanding, to the extent permitted by law, this Agreement may be amended,
supplemented, or interpreted at any time prior to the Effective Time by written
instrument duly authorized and executed by each of the parties hereto.
2.6. Termination. This Agreement shall terminate and be abandoned upon
(i) termination of the Plan of Merger or (ii) the mutual consent of NBT Bank and
Central National at any time prior to the Effective Time, and there shall be no
liability on the part of either of the parties hereto (or any of their
respective officers or directors) except to the extent provided in the Plan of
Merger.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
NBT BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxxxxx
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Xx. Xxxxx X. Xxxxxxxx
Chairman and Chief Executive Officer
CENTRAL NATIONAL BANK, CANAJOHARIE
By: /s/ Xxxxxx X. Brass
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Xxxxxx X. Brass
President and Chief Executive Officer
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