STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made as
of September 1, 1995, by and among HUNTINGTON BANCSHARES WEST
VIRGINIA, INC., an Ohio corporation ("Huntington"), THE
HUNTINGTON NATIONAL BANK OF PENNSYLVANIA, a national banking
association which is a wholly owned subsidiary of Huntington
("HNBP"), and BT FINANCIAL CORPORATION, a Pennsylvania
corporation ("BT Financial").
RECITALS:
A. HNBP is authorized under its Articles of Association to
issue 1,000,000 shares of common stock, $5.00 par value per share
("HNBP Common Stock"), all of which are issued and outstanding
and owned by Huntington (the "Shares").
B. BT Financial desires to purchase the Shares from
Huntington, either directly or through a wholly owned subsidiary
to be designated by BT Financial (the "Designated Subsidiary")
and Huntington desires to sell the Shares to BT Financial or to
the Designated Subsidiary, upon and subject to the terms and
conditions set forth herein (the "Acquisition"). It is BT
Financial's intention to cause HNBP to be merged with and into
Fayette Bank, a Pennsylvania state-chartered bank and a wholly
owned subsidiary of BT Financial ("Fayette"), immediately
following the consummation of the Acquisition.
AGREEMENTS:
In consideration of the foregoing Recitals and the mutual
covenants and agreements contained herein, the parties hereto
hereby agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1 Definitions. In addition to those terms defined
throughout this Agreement, the following terms, when used herein,
shall have the following meanings:
(a) an "Affiliate" of a party means a Person that, directly
or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, such Person;
(b) the "BHCA" means the Bank Holding Company Act of 1956,
as amended;
(c) a "Business Day" means any day which is not a Saturday
or Sunday and in the cities of Columbus, Ohio, Johnstown,
Pennsylvania, or Uniontown, Pennsylvania, is not a legal holiday
or a day on which banking institutions are authorized by law,
regulation, or executive order to be closed;
(d) "CERCLA" means the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended;
(e) the "Code" means the Internal Revenue Code of 1986, as
amended, and the rules and regulations promulgated thereunder;
(f) "Confidential Information" of or relating to a party
means any and all information received from or on behalf of such
party or their Affiliates concerning the Acquisition, the terms
of this Agreement, or the assets, business, operations, or
financial condition of such party or their Affiliates, unless and
to the extent that any such information is in the public domain;
(g) the "Confidentiality Agreement" means a certain letter
agreement, dated August 1, 1995, among BT Financial, Fayette,
Huntington Bancshares, Huntington, and HNBP, relating to certain
confidentiality obligations of the parties in connection with the
parties' analysis of the Acquisition;
(h) the "Disclosure Memorandum" means a certain Disclosure
Memorandum which will be delivered by Huntington to BT Financial
in accordance with the terms of this Agreement on or before
September 15, 1995, as the same may subsequently be amended prior
to the Closing Date;
(i) "Employee Benefit Plans" means any and all written and
unwritten "employee benefit plans" within the meaning of Section
3(3) of ERISA, and any profit sharing, pension, savings, deferred
compensation, fringe benefit, insurance, medical, medical
reimbursement, life, disability, accident, post-retirement health
or welfare benefit, stock option, stock purchase, sick pay,
vacation, employment, severance, termination or other plan,
agreement, contract, policy, trust fund or arrangement;
(j) "Environmental Condition" means (i) the presence in
surface water, groundwater, drinking water supply, land surface,
subsurface strata, above-ground or underground storage tanks or
other containers, or ambient air of any Hazardous Substances or
(ii) any violation of any statute, ordinance, regulation,
administrative order, judicial order or decree or other
governmental requirement relating to the emission, discharge,
deposit, disposal, leaching, migration or release of any
Hazardous Substance into the environment or the generation,
treatment, storage, transportation or disposal of any Hazardous
Substance (A) arising out of or otherwise related to the
operations or other activities (including the disposition of such
materials or substances) of HNBP or of any predecessor in title,
interest or line of business to HNBP, conducted or undertaken
prior to the Closing, or (B) existing at or prior to the Closing
at any Owned Real Property, Leased Real Property, or Prior Real
Property;
(k) "Environmental Laws" means all statutory and common
law, rules, regulations, ordinances, Governmental Approvals,
guidelines, policies, judicial or administrative orders or
decrees of any federal, state or local Governmental Authority
relating to the protection of human health and safety or the
environment;
(l) "ERISA" means the Employee Retirement Income Security
Act of 1974, as amended;
(m) "ERISA Affiliate" means each of the corporations,
trades, businesses or other entities that, together with HNBP,
are considered as a single employer under Sections 414(b), (c),
(m) or (o) of the Code;
(n) the "FDIC" means the Federal Deposit Insurance
Corporation;
(o) the "Federal Reserve Board" means the Board of
Governors of the Federal Reserve System;
(p) "Governing Documents" means, with respect to any Person
who is not a natural Person, the certificate or articles of
incorporation, bylaws, deed of trust, formation or governing
agreement and other charter documents or organization or
governing documents or instruments of such Person;
(q) "Governmental Approvals" means all permits, licenses,
authorizations, consents, approvals, waivers, variances, or
exemptions issued by any Governmental Authority that are required
under any federal, state, local or foreign statutory or common
law, rule, regulation, ordinance, code, policy, or guidelines,
relating to any Environmental Laws with respect to the ownership,
use, occupation, operation, and other activities of HNBP, on any
of the Owned Real Property, Leased Real Property, or Prior Real
Property;
(r) "Governmental Authority" means any federal, state,
local, foreign, regional, or other judicial, governmental,
administrative, or regulatory authority or instrumentality;
(s) "Governmental Filings" means all filings, reports,
registrations, notices, or other submissions required under any
Environmental Laws with respect to the ownership, use,
occupation, operation, and other activities of HNBP on any of the
Owned Real Property, Leased Real Property, or Prior Real
Property;
(t) a "Hazardous Substance" or "Hazardous Substances" means
any pollutant, contaminant, industrial waste, hazardous waste,
polychlorinated biphenyls, radioactive materials, or other toxic
or hazardous substances;
(u) "Huntington Bancshares" means Huntington Bancshares
Incorporated, a Maryland corporation and the owner of 100% of the
issued and outstanding capital stock of Huntington;
(v) the "IRS" means the Internal Revenue Service;
(w) the "Leased Real Property" means all of the Real
Property listed as leased by HNBP in the Disclosure Memorandum;
(x) the "OCC" means the Office of the Comptroller of the
Currency; and
(y) the "Owned Real Property" means all of the Real
Property listed as owned by HNBP in the Disclosure Memorandum;
(z) a "Person" means any individual, partnership, joint
venture, firm, corporation, limited liability company,
association, trust, or other enterprise or any government or
political subdivision or any agency, department, or
instrumentality thereof;
(aa) the "Prior Real Property" means any real property
previously owned, leased, occupied, or used by HNBP in the
operation of its business; and
(bb) the "Real Property" means all real property owned or
leased by HNBP and used in the operation of its business as of
the date of this Agreement.
Section 1.2 Principles of Construction.
(a) All references to sections, schedules, and exhibits are
to sections, schedules, and exhibits in or to this Agreement
unless otherwise specified.
(b) All accounting terms not specifically defined herein
shall be construed in accordance with United States generally
accepted accounting principles in the financial institutions
industry as in effect on the date hereof.
(c) Section references in this Agreement to any statutes or
laws are to such statutes and laws as in effect at the date of
this Agreement, and to any subsequent provisions of such statutes
or laws amendatory thereof, supplemental thereto or substituted
therefor.
ARTICLE 2
TERMS OF ACQUISITION; CLOSING
Section 2.1 Purchase and Sale of the Shares. At the
Closing (as defined below), and on the terms and subject to the
conditions set forth herein, Huntington shall sell and transfer
the Shares to BT Financial or to the Designated Subsidiary and BT
Financial or the Designated Subsidiary shall purchase and acquire
the Shares from Huntington, and BT Financial shall pay or shall
cause the Designated Subsidiary to pay to Huntington a total
purchase price for the Shares in the amount of Twenty-Five
Million Five Hundred Thousand Dollars ($25,500,000) (the
"Purchase Price"), which shall be payable in full at the time of
the Closing by wire transfer of funds in accordance with written
instructions delivered by Huntington to BT Financial not less
than five Business Days before the Closing Date (as defined
below).
Section 2.2 Closing. The consummation of the
Acquisition (the "Closing") shall occur at such time and place as
Huntington and BT Financial may agree, provided, however, that,
if the parties fail to so agree, the Closing shall take place at
the offices of Porter, Wright, Xxxxxx & Xxxxxx in Columbus, Ohio,
at 10:00 a.m., local time, on the last Business Day of the month
in which all required regulatory approvals or consents referred
to in Sections 8.7 and 9.4 have been received and all waiting
periods relating to such approvals or consents have expired,
provided, however, that, the Closing shall not take place any
earlier than five Business Days after the expiration of the last
to expire of any such waiting periods unless the parties
otherwise agree or unless the date set for the Closing pursuant
to this Section 2.2 is December 29, 1995 (the "Closing Date").
The Acquisition shall be effective as of the close of business on
the Closing Date.
Section 2.3 Deliveries by BT Financial at Closing. At
the Closing, BT Financial shall deliver the following items to
Huntington or its agent:
(a) evidence of the wire transfer of the Purchase Price in
accordance with Huntington's written instructions, or if no such
instructions have been received, a certified or cashier's check
in an amount equal to the Purchase Price;
(b) a certificate of good standing of BT Financial,
certified as of a recent date prior to the Closing Date, by the
Secretary of State of the Commonwealth of Pennsylvania;
(c) certificate from the Federal Reserve Bank of
Philadelphia, dated as of a recent date prior to the Closing
Date, to the effect that BT Financial is a bank holding company
as defined in the BHCA, is properly registered with the Federal
Reserve System, is duly organized and validly existing, and has
filed all reports required by the Federal Reserve Board;
(d) evidence of approval of the Acquisition by the Federal
Reserve Board and all other regulatory authorities having
jurisdiction and the expiration of all applicable waiting
periods;
(e) a certificate of the President or any Vice President
and the Secretary of BT Financial, dated as of the Closing Date,
stating that: (i) all of the representations and warranties of
BT Financial set forth in this Agreement are true and correct
with the same force and effect as if all of such representations
and warranties were made at the Closing Date, except for changes
contemplated by this Agreement and except also for
representations and warranties as of a specified time other than
the Closing Date which shall be true and correct at such
specified time, and (ii) BT Financial has performed or complied
with all of the covenants and obligations to be performed or
complied with by it under the terms of this Agreement on or prior
to the Closing Date;
(f) a certificate of the Secretary of BT Financial, dated
as of the Closing Date, as to the validity of the Governing
Documents of BT Financial and the taking of all corporate actions
necessary to authorize and approve this Agreement and to
authorize, approve, and consummate the Acquisition;
(g) an opinion in substantially the form attached as
Exhibit A from counsel for BT Financial, dated as of the Closing
Date and addressed to Huntington; and
(h) such other documents as Huntington, HNBP, or their
counsel may reasonably request.
All of such items shall be reasonably satisfactory in form
and substance to Huntington, HNBP, and their counsel.
Section 2.4 Deliveries by Huntington and HNBP at Closing.
At the Closing, Huntington and HNBP shall deliver the following
items to BT Financial or their agent:
(a) a stock certificate or certificates evidencing
ownership of the Shares, duly endorsed for transfer or
accompanied by a stock power or stock powers duly executed in
blank, all in such form as to cause title to the Shares to be
transferred to BT Financial Corporation on the books and records
of HNBP, with all transfer taxes, if any, paid in full;
(b) all minute books of HNBP;
(c) resignations effective on or before the Closing Date
from each of HNBP's directors and executive officers who are also
officers or employees of Huntington or any Huntington Affiliate
other than HNBP from all of his or her positions and offices with
HNBP;
(d) the Articles of Association of HNBP, certified as of a
recent date prior to the Closing Date, by the OCC;
(e) certificates of good standing of Huntington, issued as
of a recent date prior to the Closing Date, by the Secretary of
State of the State of Ohio;
(f) certificates of good standing of HNBP, issued as of a
recent date prior to the Closing Date, by the OCC;
(g) a certificate from the Federal Reserve Bank of
Cleveland, dated as of a recent date prior to the Closing Date,
to the effect that Huntington is a bank holding company as
defined in the BHCA, is properly registered with the Federal
Reserve System, is duly organized and validly existing, and has
filed all reports required by the Federal Reserve Board;
(h) a certificate of the FDIC, dated as of a recent date
prior to the Closing Date, as to HNBP's coverage under the
Federal Deposit Insurance Act and the absence of termination
proceedings;
(i) a certificate of the President or any Vice President
and the Secretary of Huntington, dated as of the Closing Date,
stating that: (i) all of the representations and warranties of
Huntington set forth in this Agreement are true and correct with
the same force and effect as if all of such representations and
warranties were made at the Closing Date, except for changes
contemplated by this Agreement and except also for
representations and warranties as of a specified time other than
the Closing Date which shall be true and correct at such
specified time; and (ii) Huntington has performed and complied
with all of the covenants and obligations to be performed or
complied with by it under the terms of this Agreement on or prior
to the Closing Date;
(j) a certificate of the secretary of HNBP, dated as of the
Closing Date, as to the validity of the Governing Documents of
HNBP, and certificates of the respective secretaries of HNBP and
Huntington as to the taking of all corporate actions necessary to
authorize and approve this Agreement and to authorize, approve,
and consummate the Acquisition;
(k) an opinion in substantially the form attached as
Exhibit B from Huntington's counsel, dated as of the Closing Date
and addressed to BT Financial; and
(l) such other documents as BT Financial or its counsel may
reasonably request.
(m) True and correct copies of (i) the Governing Documents
(other than the bylaws) of HNBP as of a date not more than 10
days prior to the Closing Date, certified by the Comptroller of
the Currency, and (ii) the bylaws of HNBP as of the Closing Date,
certified by its Secretary; and
(n) General releases by all officers and directors of HNBP
and Huntington of all liability of HNBP to them and of any claim
that they or any of them may have against HNBP, except for any
claim arising out of the obligations of HNBP existing as of the
Closing Date to indemnify any such officer or director for any
claims asserted by third parties against any such officer or
director in relation to the performance of his or her duties as
such officer or director.
All of such items shall be reasonably satisfactory in form
and substance to BT Financial and its counsel.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF HUNTINGTON AND HNBP
Huntington and HNBP hereby represent and warrant to BT
Financial as follows:
Section 3.1 Organization and Authority of Huntington.
Huntington is a corporation duly organized, validly existing, and
in good standing under the laws of the State of Ohio, is duly
qualified to do business and is in good standing in all
jurisdictions where its ownership or leasing of property or the
conduct of its business requires it to be so qualified, and has
full corporate power and authority to own its properties and
assets, to carry on its business as it is presently being
conducted, and to enter into and carry out its obligations under
this Agreement.
Section 3.2 Organization and Authority of HNBP. HNBP
is a national banking association, duly organized, validly
existing, and in good standing under the laws of the United
States, is duly qualified to do business and is in good standing
in all jurisdictions where its ownership or leasing of property
or the conduct of its business requires it to be so qualified,
and has full corporate power and authority to own its properties
and assets, to carry on its business as it is now being conducted
and to enter into and carry out its obligations under this
Agreement. HNBP's deposits are insured by the Bank Insurance
Fund of the FDIC.
Section 3.3 Capitalization of HNBP. The authorized
capital stock of HNBP consists, and at the Closing will consist,
of 1,000,000 shares of HNBP Common Stock, all of which shares are
issued and outstanding and owned of record and beneficially by
Huntington. All of the Shares have been duly and validly
authorized and issued, and are fully paid and nonassessable.
Huntington has good, marketable, and unencumbered title to the
Shares, free and clear of all pledges, security interests, liens,
claims, encumbrances, agreements (other than this Agreement),
rights of first refusal, and options of any kind or nature
whatsoever, and has full right and authority to transfer and
deliver all of the Shares to BT Financial as contemplated hereby.
Upon consummation of the transactions contemplated hereby,
Huntington will have transferred to BT Financial good, marketable
and unencumbered title to the Shares, free and clear of all
pledges, security interests, liens, claims, encumbrances,
agreements, rights of first refusal and options of any kind or
nature whatsoever. Other than this Agreement, there are no
outstanding subscriptions, contracts, conversion privileges,
options, warrants, calls, or other rights obligating Huntington
or HNBP to issue, sell, or otherwise dispose of, or to purchase,
redeem, or otherwise acquire, any shares of capital stock of
HNBP.
Section 3.4 Authorization. The execution, delivery,
and performance of this Agreement by Huntington and HNBP and the
consummation by them of the transactions contemplated hereby have
been duly authorized by all necessary corporate action. This
Agreement constitutes a legal, valid and binding obligation of
Huntington and HNBP, enforceable in accordance with its terms,
subject only to the approval of the OCC, the Federal Reserve
Board, and the Pennsylvania Department of Banking, except as such
enforcement may be limited by bankruptcy, insolvency,
reorganization, or other similar laws and subject to general
principles of equity.
Section 3.5 Articles of Association and Bylaws.
Schedule 3.5 to the Disclosure Memorandum sets forth true and
complete copies of the Articles of Association and Bylaws of
HNBP.
Section 3.6 Effect of Agreement. The execution,
delivery, and performance of this Agreement by Huntington and
HNBP and the consummation by them of the transactions
contemplated hereby do not and shall not: (a) require the
consent, waiver, order, registration, qualification, approval,
license, or authorization of any Person, court, regulatory
authority, or other governmental body, other than as specifically
contemplated by this Agreement; (b) violate, with or without the
giving of notice or the passage of time or both, in any material
respect any provision of law applicable to either of them; (c)
conflict with or result in a breach of any terms of their
respective charters or bylaws or code of regulations, or any
material agreement or instrument listed in the Disclosure
Memorandum; (d) give to others any right to accelerate or
terminate, or result in acceleration or termination of, any such
material agreement or instrument; (e) result in termination of
any provision of any such material agreement or instrument; or
(f) result in the creation of any lien, charge or encumbrance
upon any of the property or assets of HNBP.
Section 3.7 HNBP Financial Statements and Reports.
(a) True, correct, and complete copies of the following
financial statements and reports have been delivered to BT
Financial:
(i) HNBP's unaudited balance sheets as of December 31,
1991, 1992, 1993 and 1994, and the related statement of
income and statement of changes in stockholders' equity for
the year ended December 31, 1994, and any unaudited balance
sheets or income statements of HNBP heretofore furnished to
any regulatory authority or to HNBP's board of directors or
its officers, for any portion of fiscal year 1995;
(ii) HNBP's Financial Reports heretofore furnished to
the OCC for each of the years ended December 31, 1991, 1992,
1993 and 1994;
(iii) any other financial reports filed by HNBP, or
Huntington with respect to HNBP, with any regulatory
authority since January 1, 1991; and
(iv) all material notices, reports and review letters
received from the FDIC or any other governmental agency
since January 1, 1991 or prior to that date to the extent
the same remain in force as of the date of this Agreement.
(b) The financial statements described in this Section are
sometimes collectively referred to hereinafter as the "HNBP
Financial Statements." The HNBP Financial Statements have been
prepared in accordance with the rules and regulations applicable
thereto and consistent with past accounting practices and, except
to the extent indicated in Schedule 3.7 to the Disclosure
Memorandum, in accordance with generally accepted accounting
principles, and each of the HNBP Financial Statements fairly and
correctly presents the financial position, assets, liabilities,
and the results of operations of HNBP at the respective dates or
for the respective periods covered by such HNBP Financial
Statements. The books of account of HNBP accurately and fairly
reflect, in reasonable detail, the transactions of HNBP.
Notwithstanding anything contained herein to the contrary, the
HNBP Financial Statements are derived from the books and records
of HNBP.
(c) HNBP does not have, and at the time of the Closing will
not have any material liabilities or obligations, of any nature,
secured or unsecured (whether accrued, absolute, contingent, or
otherwise), other than those which are reflected or reserved
against in the HNBP Financial Statements for the year ended
December 31, 1994, or described in a Schedule to the Disclosure
Memorandum. HNBP does not have, and at the time of the Closing
will not have, any material liability or obligation of any kind
to Huntington or any Affiliate of Huntington.
Section 3.8 Loan Loss Reserves. Since June 30, 1995,
HNBP has not incurred any unusual or extraordinary loan losses.
The allowance for loan losses reflected on HNBP's balance sheet
as of June 30, 1995 (the "Balance Sheet"), has been determined in
accordance with all applicable regulations of all appropriate
regulatory agencies and is adequate in all respects. To
Huntington's knowledge, there are no potential losses that have
not been considered in establishing the allowance for loan losses
reflected on the Balance Sheet.
Section 3.9 Taxes.
(a) Either HNBP, or a Huntington Affiliate on HNBP's
behalf, has filed or caused to be filed on a timely basis, all
material returns, declarations, reports, claims for refund, or
information returns or statements, including any schedules or
attachments thereto, and including any amendments thereof
(individually, a "Tax Return" and collectively, the "Tax
Returns"), relating to any federal, state, local or foreign taxes
of any kind, including any interest or penalty thereon or
addition thereto, whether disputed or not (individually, a "Tax"
and collectively, the "Taxes"), that were or are required to be
filed by it prior to or on the Closing Date, pursuant to the laws
of those Governmental Authorities with taxing power over it.
Either HNBP, or a Huntington Affiliate on HNBP's behalf, has
paid, or made provision for the payment of, all Taxes that have
or may become due as shown on said Tax Returns or pursuant to any
assessment received as an adjustment of such Tax Returns, except
such Taxes, if any, as are being contested in good faith and such
accrued and unpaid Taxes, if any, for which appropriate accruals
are reflected in the HNBP Financial Statements, dated as of the
Closing Date or, if HNBP Financial Statements are not to be
prepared for the period ending as of the Closing Date, such
accrued and unpaid Taxes, if any, for which appropriate accruals
are reflected in the HNBP Financial Statements dated as of the
last day of the month ended immediately prior to the month in
which the Closing occurs. Except as set forth on Schedule 3.9 to
the Disclosure Memorandum, HNBP is not currently the beneficiary
of any extension of time within which to file any Tax Return. To
the best of Huntington's knowledge, no claim has ever been made
by a taxing authority in a jurisdiction where HNBP does not file
Tax Returns that it is or may be subject to taxation by that
jurisdiction.
(b) Except as set forth on Schedule 3.9 to the Disclosure
Memorandum, to the best of Huntington's knowledge, HNBP, or a
Huntington Affiliate on HNBP's behalf, has withheld and paid all
Taxes required to have been withheld and paid in connection with
amounts paid or owing to any employee, independent contractor,
creditor, stockholder, or other third party.
(c) Neither HNBP nor a Huntington Affiliate on HNBP's
behalf has filed a consent under Section 341(f) of the Code
concerning collapsible corporations. HNBP has not made any
payments, is not obligated to make any payments, and is not a
party to any agreement that under certain circumstances could
obligate it to make any payments, that will not be deductible
under either Section 280G or 162(m) of the Code.
Section 3.10 Insurance. Schedule 3.10 to the Disclosure
Memorandum lists the policies of insurance and fidelity bonds
maintained by HNBP on the date hereof. Concurrently with its
delivery of the Disclosure Memorandum, Huntington will deliver to
BT Financial complete and correct copies of all such policies and
bonds currently in effect together with all riders and amendments
thereto. Each such policy is, and will remain in full force and
effect (except for any expiring policy which is replaced by
coverage at least as extensive) through the Closing Date. All
premiums due on such policies have been paid. Neither Huntington
nor HNBP is in default with respect to any provisions of any
liability or other forms of insurance held by it or has failed to
give any notice or present any material claim thereunder in a due
and timely fashion. All polices are carried in an amount and are
otherwise adequate to protect HNBP from any material adverse loss
on a consolidated basis. Neither Huntington nor HNBP has been
denied any application for insurance or had any policy of
insurance terminated during the past three years, nor have they
been notified of any pending termination.
Section 3.11 Properties. Schedule 3.11 to the
Disclosure Memorandum will set forth a complete and correct list
of all of the Real Property. HNBP has good and marketable title
to all of the Owned Real Property and valid leasehold interests
in all of the Leased Real Property, free and clear of any liens
and encumbrances, except (a) as noted in the HNBP Financial
Statements or on Schedule 3.11 to the Disclosure Memorandum; (b)
statutory liens for taxes not yet delinquent or being contested
in good faith by appropriate proceedings and for which
appropriate reserves have been established and reflected on the
HNBP Financial Statements; (c) pledges or liens required to be
granted in connection with the acceptance of government deposits,
granted in connection with repurchase agreements or otherwise
incurred in the ordinary course of business; and (d) utility and
other easements or minor defects and irregularities in title and
encumbrances which do not impair the use thereof for the purposes
for which they are held. HNBP as lessee has the right under
valid and subsisting leases to occupy, use, possess, and control
any and all of the Leased Real Property. The present uses of the
Owned Real Property are in compliance with the present zoning
classifications assigned to such real property, and all
improvements constructed on the land included in the Owned Real
Property have been constructed in accordance with the material
requirements of all building, health, safety, environmental,
zoning and other federal, state and local laws, ordinances,
regulations, codes, licenses or permits applicable at the time of
such construction, do not contain any material defect in design
or construction or otherwise, and have access to existing
highways, roads and utility services. Neither Huntington nor
HNBP has received any notice or request from any Governmental
Authority, utility, insurer, board of fire authorities or similar
organization for the performance of any work or alteration with
respect to the Owned Real Property or for the termination or
limitation of any access, services, or insurance with respect
thereto. All Owned Real Property and Leased Real Property is
adequately insured against loss.
Section 3.12 Material Contracts.
(a) Schedule 3.12 to the Disclosure Memorandum lists or
describes the following:
(i) All loan and credit agreements, conditional sales
contracts, or other title retention agreements or security
agreements relating to money borrowed by HNBP, exclusive of
deposit agreements with customers of HNBP entered into in
the ordinary course of business, agreements for the purchase
of federal funds, and repurchase agreements;
(ii) All leases or licenses of HNBP with respect to
personal property, whether as lessee or licensee, with
annual rental or other payments due hereunder in excess of
$50,000;
(iii) All management, employment and consulting
contracts to which HNBP is a party (except for ordinary oral
arrangements with employees of HNBP creating at will
employment relationships), including, but not limited to,
any agreements between HNBP and Huntington or any Affiliate
of Huntington;
(iv) All agreements or commitments for sale (otherwise
than in the ordinary course of business) of assets exceeding
$50,000 in the aggregate;
(v) All agreements or commitments for capital
expenditures in excess of $50,000 in the aggregate;
(vi) All agreements, loans, contracts, leases,
guarantees, letters of credit, lines of credit, or
commitments of HNBP not referred to elsewhere in this
Article III which:
(A) involve payment by HNBP (other than as
disbursement of loan proceeds to customers) of more
than $50,000 in any year;
(B) involve payments based on profits of HNBP;
(C) relate to the future purchase of goods or
services in excess of the requirements of its business
at current levels or for normal operating purposes;
(D) were not made in the ordinary course of
business; or
(E) materially affect the business or financial
condition of HNBP.
(b) Copies of each document or contract listed and
described in Schedule 3.12 to the Disclosure Memorandum are
appended to such Schedule and included in the Disclosure
Memorandum. HNBP is not in material default or, to Huntington's
knowledge, alleged to be in material default under any of the
agreements listed on Schedule 3.12. Huntington has no knowledge
of any event or condition which, with notice or lapse of time or
both, would constitute a material default under any such
agreements. The consummation of the Acquisition will not
constitute a material default under any such agreements nor will
it otherwise cause any of such agreements to be terminated. All
such agreements, including but not limited to all contracts
relating to the purchase and sale of loans, will continue to be
in full force and effect following the Closing Date, without
further action by HNBP or BT Financial. HNBP is not currently
renegotiating any contract.
Section 3.13 Employee Benefit Plans.
(a) Schedule 3.13 to the Disclosure Memorandum contains a
complete list of all Employee Benefit Plans in which HNBP is
currently a participating employer or with respect to which HNBP
has or may have liability (hereinafter individually referred to
as an "HNBP Plan" and collectively referred to as the "HNBP
Plans"). For each HNBP Plan, to the extent applicable to each
such HNBP Plan, complete copies of the following have been
delivered to BT Financial or will be delivered as soon as
practicable to BT Financial (but in any event, no later than
seven (7) days prior to the Closing Date): the documents
embodying the HNBP Plans, including the plan documents, all
amendments thereto, the related trust or funding agreements,
Group Insurance Contracts ("GICs") and, in the case of any
unwritten HNBP Plans, written descriptions thereof; Forms 5500
and all schedules thereto for the last three years; financial
statements for the last three years; the most recent actuarial
report, if applicable, and all employee manuals, handbooks,
policy statements, and other written materials given to employees
relating to any HNBP Plans. To the knowledge of HNBP and
Huntington, no oral or written representations or commitments
inconsistent with such written materials have been made to any
employee or former employee of HNBP or agent thereof. All of the
HNBP Plans are in compliance in all material respects with all
applicable requirements of ERISA, and are in compliance in all
material respects with all applicable requirements (including
qualification and non-discrimination requirements in effect as of
the Closing) of the Code for obtaining the tax benefits the Code
thereupon permits with respect to such HNBP Plans. No such HNBP
Plan nor any other Employee Benefit Plan maintained or
contributed to by any corporation related to HNBP within the
meaning of Code Section 414(b) (an "Affiliate Plan") has, or as
of the Closing will have, any amount of unfunded benefit
liabilities (as defined in Section 4001(a)(18) of ERISA) for
which HNBP would be liable to any Person under Title IV of ERISA
if any such HNBP Plan were terminated as of the Closing Date.
Such HNBP Plans are funded in accordance with Section 412 of the
Code (if applicable). There would be no obligations which would
be material to HNBP under Title IV of ERISA relating to any such
HNBP Plan or Affiliate Plan that is a multiemployer plan if any
such plan were terminated or if HNBP or any related corporation
withdrew from any such plan as of the Closing.
(b) All HNBP Plans and all Affiliate Plans are sponsored by
Huntington or Huntington Bancshares. For the purpose of this
paragraph, all HNBP Plans and all Affiliate Plans are
collectively referred to as "Huntington Employee Benefit Plans."
As of the Closing Date, HNBP will cease to be a participating
employer with respect to Huntington Employee Benefit Plans.
Employees of HNBP who are participants in the Huntington Employee
Benefit Plans will stop accruing benefits as of the Closing Date
and participants' benefits will be determined according to the
terms of the Huntington Employee Benefit Plans. BT Financial
shall not have any obligation to employees of HNBP or any other
financial obligation or liability with respect to the Huntington
Employee Benefit Plans unless the obligation is expressly assumed
by BT Financial or expressly continued or established by BT
Financial after the Closing.
(c) The consummation of the transactions contemplated
hereby will not create, accelerate or increase any liability
under any HNBP Plan because of the creation, acceleration or
increase of any of the rights or benefits to which employees may
be entitled thereunder, including any obligation to make any
payment upon a "change in ownership or control" as such term is
defined for purposes of Section 280G of the Code. With respect
to the HNBP Plans, no prohibited transaction (within the meaning
of Section 406 of ERISA and Section 4975 of the Code) exists
which could subject HNBP, directly or indirectly, to any
liability or tax under Part 5 of Title I of ERISA or Section 4975
of the Code. No member of the HNBP Group, nor any administrator
or fiduciary of any HNBP Plan, nor any agent of any of the
foregoing, has engaged in any transaction or acted or failed to
act in a manner which is likely to subject HNBP to any material
liability for a breach of fiduciary or other duty under ERISA or
any other law. Schedule 3.13 to the Disclosure Memorandum
identifies each HNBP Plan that purports to be a qualified plan
under Section 401(a) of the Code and exempt from United States
federal income tax under Section 501(a) of the Code (a "Qualified
Plan"). Each Qualified Plan has received a determination letter
(or opinion or notification letter, if applicable) from the IRS,
or has timely filed for such a determination letter, to the
effect that such plan is qualified under Section 401(a) of the
Code and exempt from federal income tax under Section 501(a) of
the Code. No determination, opinion or notification letter has
been revoked nor has revocation been threatened, nor has any
Qualified Plan been amended since the date of the most recent
such letter in any respect that might jeopardize the tax
qualified status thereof. Each Qualified Plan has been
administered according to its terms.
Section 3.14 Litigation and Regulatory Matters.
Schedule 3.14 to the Disclosure Memorandum sets forth a list of
all actions, suits, or proceedings pending at any time since
January 1, 1993, in which HNBP is or was a named party, other
than collection or foreclosure actions brought by HNBP in the
ordinary course of business and where no counterclaim has been
filed against HNBP. Except as set forth on Schedule 3.14 to the
Disclosure Memorandum, there is no action, suit, proceeding,
claim, or formal written protest by any Person or agency, or any
investigation or report by any regulatory authority having
jurisdiction over Huntington, HNBP, or any of their Affiliates or
their respective businesses or assets which is pending or, to
Huntington's knowledge, threatened against Huntington, HNBP, or
any of their Affiliates, or their respective assets or businesses
which, if adversely determined, would have a material adverse
effect on (i) the ability of Huntington or HNBP to satisfy the
covenants of this Agreement or complete the Acquisition or (ii)
the assets or business of HNBP. HNBP is not subject to, or in
default with respect to, nor are any of its assets, its business,
the HNBP Common Stock, or the consummation of the Acquisition
subject to or affected by, any outstanding judgment, regulatory
agreement, injunction, writ, order, or decree or any other
requirement of any governmental body or court or of any
governmental agency or instrumentality.
Section 3.15 Compliance with Environmental Laws. Except
as disclosed in Schedule 3.15 to the Disclosure Memorandum:
(i) To the best of Huntington's and HNBP's knowledge,
there are no Environmental Conditions.
(ii) No investigation, administrative order, consent
order, agreement, litigation or settlement with respect to any
Environmental Condition is proposed, threatened or in existence
and neither Huntington nor HNBP has received any communication
from or on behalf of any Governmental Authority that alleges that
any such Environmental Condition exists.
(iii) HNBP has obtained, holds, and will maintain
all Governmental Approvals. Except as set forth on Schedule 3.15
to the Disclosure Memorandum, HNBP has made all Governmental
Filings to any Governmental Authority. Such Governmental
Approvals and Governmental Filings are listed on Schedule 3.15 to
the Disclosure Memorandum.
(iv) HNBP has not transported or disposed of any
Hazardous Substances or arranged for the transportation or
disposal of such Hazardous Substances to any location which is
listed or to the knowledge of HNBP or Huntington proposed for
listing under CERCLA, a comparable state statute or other
Environmental Law, or which is the subject of federal, state, or
local enforcement actions or other investigations which may lead
to claims against HNBP for clean-up costs, remedial work, damages
to natural resources or for personal injury claims, including,
but not limited to, claims under CERCLA. None of the Owned Real
Property, Leased Real Property, or Prior Real Property is listed
or, to the knowledge of HNBP or Huntington, proposed for listing
under CERCLA or under any comparable state or other Environmental
Law.
(v) Each of the Governmental Approvals set forth in
Schedule 3.15 to the Disclosure Memorandum is in full force and
effect and is final, any fixed period for appeal or review having
elapsed (other than as to ongoing compliance or modification
during the term of such Governmental Approval as otherwise
provided by law or as indicated in Schedule 3.15 to the
Disclosure Memorandum). No such Governmental Approval is subject
to any pending suit, action, investigation of which Huntington or
HNBP has notice, proceeding, or appeal (whether judicial,
administrative, or otherwise) and, to the best of Huntington's or
HNBP's knowledge, no such matter is threatened.
(vi) HNBP, with respect to its operation or other
activities, any Owned Real Property, Leased Real Property, or
Prior Real Property, has complied in all respects with, and
currently is in compliance in all respects with: (A) the terms
and conditions of all Governmental Approvals issued or required
pursuant to any Environmental Law, and (B) all other limitations,
restrictions, standards, prohibitions, requirements, obligations,
schedules, and timetables contained in any Environmental Law, or
in any written notice, order, or demand letter issued, entered,
promulgated, or approved pursuant to any Environmental Law.
(vii) HNBP has not received any notice of violation
or other notification from any Governmental Authority, or any
written notice from any third party, alleging that HNBP is now or
has been in violation of any Environmental Law.
(viii) No ozone depleting substances ("ODS"),
polychlorinated biphenyls ("PCBs"), asbestos containing material
("ACM"), or urea formaldehyde insulation is present on or at any
Owned Real Property, Leased Real Property, or Prior Real Property
and HNBP has complied with all regulatory requirements relating
to the storage, removal, disposal or release, if any, of ODS, ACM
or PCBs which currently are or may in the past have been located
on or at any Owned Real Property, Leased Real Property, and Prior
Real Property.
(ix) To the knowledge of HNBP or Huntington, there are
not now, any underground or aboveground storage tanks and
associated piping ("Storage Tanks") on or at any Owned Real
Property, Leased Real Property, or Prior Real Property, nor has
HNBP owned or operated Storage Tanks at any time. Any such
Storage Tanks described on Schedule 3.15 to the Disclosure
Memorandum on any Owned Real Property, Leased Real Property, or
Prior Real Property are in full compliance with Environmental
Laws, are in sound condition, and are not leaking and have not
leaked and any Storage Tanks owned or operated by HNBP were owned
or operated in compliance with all Environmental Laws, were in
sound condition and had not leaked.
(x) Neither Huntington nor HNBP, with respect to the
ownership, use, occupation, operation and other activities of
HNBP, any Owned Real Property, Leased Real Property, and Prior
Real Property, has received any written request for information
from any Governmental Authority or other person related to any
site which is, or may be, subject to actions for removal,
response, remediation or cleanup of Hazardous Substances,
including, but not limited to, any information request pursuant
to CERCLA, comparable state statutes, or other Environmental Law.
(xi) Neither HNBP, nor, to the knowledge of HNBP or
Huntington, any other person has ever caused or permitted any
Hazardous Substances to be placed, stored, treated, handled, or
located on, under or at any Owned Real Property, Leased Real
Property, or Prior Real Property or any part thereof other than
in the ordinary course of business and in compliance with all
Environmental Laws.
(xii) HNBP has fully complied with all applicable
provisions of any Environmental Laws that condition, restrict, or
prohibit the transfer, sale, lease, or closure of any property
for environmental reasons; no environmental lien has attached to
any portion of HNBP or any Owned Real Property, Leased Real
Property, or Prior Real Property and, no governmental actions
have been taken or are in progress that could subject any or all
of the foregoing to any such lien.
(xiii) There have been no past and there are no
pending or contemplated claims by HNBP, under any Environmental
Laws based on actions of others that may have impacted any Owned
Real Property, Leased Real Property, or Prior Real Property, and
HNBP has not entered into any agreement with any person regarding
liabilities or responsibilities with respect to (A) any
Environmental Law, (B) remedial action, or (C) other
environmental expense (including contingent liabilities).
(xiv) HNBP has not agreed to retain, assume, or
guarantee the costs of any investigation, removal, response,
remediation, or cleanup of any property.
(xv) HNBP has provided copies of all material reports,
documents, and other information pertaining to compliance with
Environmental Laws and environmental matters or liabilities
arising out of, resulting from, or in connection with the
operations of HNBP, any Owned Real Property, Leased Real
Property, or Prior Real Property.
Section 3.16 Interim Events. Except as disclosed on
Schedule 3.16 to the Disclosure Memorandum and as otherwise
permitted hereunder, since December 31, 1994, HNBP has not:
(a) Suffered any changes having a material adverse effect
on the financial condition, assets, liabilities, income, or
business of HNBP or in the operation or conduct of its business;
(b) Suffered any material damage, destruction, or loss to
any of its material properties whether covered by insurance or
not;
(c) Adopted any change in any accounting policy or method;
(d) Granted or agreed to grant any increase in benefits
payable or to become payable under any HNBP Employee Benefit
Plan;
(e) Cancelled or compromised any debt or claim, other than
in the ordinary course of business;
(f) Entered into any material transaction, contract, or
commitment, other than in the ordinary course of business;
(g) Incurred any obligation or liability (fixed or
contingent), other than obligations and liabilities incurred in
the ordinary course of its business;
(h) Mortgaged, pledged, or subjected to a lien, security
interest, or other encumbrance any of its assets except to tax
and other liens which arise by operation of law and with respect
to which payment is not past due and except for pledges or liens:
(i) required to be granted in connection with the acceptance by
HNBP of government deposits; (ii) granted in connection with
repurchase agreements; or (iii) otherwise incurred in the
ordinary course of the conduct of its business;
(i) Conducted its business in any manner other than
substantially as it was being conducted prior to such time;
(j) Leased, sold or otherwise disposed of any of its
assets, except in the ordinary course of business, or leased,
purchased, or otherwise acquired from third parties any assets
except in the ordinary course of business;
(k) Except for the transactions contemplated by this
Agreement, merged, consolidated, or agreed to merge or
consolidate with or into any other Person, or acquired or agreed
to acquire any stock, equity interest, or business of any other
Person;
(l) Agreed to enter into any transaction for the borrowing
or loaning of monies, other than in the ordinary course of
business;
(m) Increased the salary of any officer or the compensation
or fees payable to any director, except for normal increases in
the ordinary course of business or in accordance with any HNBP
Employee Benefit Plan, or entered into any employment contract
with any officer or salaried employee or installed any employee
welfare, stock option, profit sharing, or other similar plan or
arrangement; or
(n) Authorized or issued shares of HNBP Common Stock or
declared or paid distributions with respect to the HNBP Common
Stock or redeemed or repurchased any such shares, except as
otherwise provided in this Agreement.
Section 3.17 Disclosures. No representation or warranty
made herein (including the recitals hereto) by Huntington or HNBP
contains any untrue statement of a material fact, or omits to
state a material fact necessary to make the statements contained
herein or therein under the circumstances under which they were
made not misleading.
Section 3.18 Approval Delays. Huntington knows of no
reason why the granting of any of the regulatory approvals
referred to in Section 9.4 would be denied or unduly delayed.
Section 3.19 Brokerage Commissions. No broker or finder
has acted for Huntington, HNBP, or any of their respective
Affiliates in connection with the execution and delivery of this
Agreement or the Acquisition. Huntington shall indemnify and
hold harmless BT Financial from any claim, suit, loss, or expense
resulting from a breach of the foregoing representation and
warranty.
Section 3.20 No Subsidiaries. HNBP does not own,
directly or indirectly, 5% or more of the outstanding capital
stock or other voting securities of any corporation, bank, or
other organization.
Section 3.21 Compliance with Laws. Each of Huntington
and HNBP is in compliance in all material respects with all laws
and regulations applicable to its operations or with respect to
which compliance is a condition of engaging in the business
thereof. Each of Huntington and HNBP has paid all assessments
and filed all reports and statements required to be filed with
respect thereto under the rules and regulations of the Department
of Banking, the Federal Reserve Board and the OCC.
Section 3.22 Agreements with Banking Authorities.
Neither Huntington nor HNBP is a party to any written agreement
or memorandum of understanding with, or a party to any commitment
letter or similar undertaking to, or is subject to any order or
directive by, the Department of Banking, the OCC, the Federal
Reserve Board or any other regulatory agency which restricts its
activities in any manner, or in any manner relates to the capital
adequacy, credit policies or management of HNBP, nor has
Huntington or HNBP been advised by any such regulatory agency
that it is contemplating, issuing or requesting (or is
considering the appropriateness of issuing or requesting) any
such order, directive, agreement, memorandum of understanding,
commitment letter or similar undertaking.
Section 3.23 Loans. All loans made by HNBP have been
made in good faith and for good and valuable consideration in the
usual and ordinary course of HNBP's business, and all notes,
mortgages, deeds of trust, security agreements and other
evidences of such loans or the security therefor are true and
genuine and are what they purport to be. All loans reflected as
assets in HNBP's consolidated statement of financial condition
dated December 31, 1994 or made or acquired by HNBP since
December 31, 1994, through the date hereof, are, in all respects,
to the best of HNBP's or Huntington's knowledge, binding
obligations of the respective obligor named therein, subject to
bankruptcy, insolvency, fraudulent conveyance and other laws of
general applicability relating to or affecting creditors' rights
and to general equity principles, and no amount thereof is
subject to any defenses that have been asserted against HNBP.
All loans sold by HNBP, including whole loans and participations,
were sold without recourse except as set forth in Schedule 3.23
to the Disclosure Memorandum. As of December 31, 1994, except as
set forth in Schedule 3.23 to the Disclosure Memorandum, HNBP:
(i) had no loans, of any type or character, in its portfolio
(A) exceeding its lending limits under applicable provisions of
Pennsylvania and federal law, or (B) in violation of Regulation
0, 12 C.F.R. Part 215 or 12 C.F.R. 563.43, or similar provisions
under Pennsylvania law; (ii) had no loan in its portfolio in
excess of $100,000 which was not secured by a mortgage, note,
deed of trust, security agreement or other security, and (iii)
had no loans, of any type or character, in its portfolio in
excess of $100,000 which were or should have been as of such date
(A) considered non-performing or placed on a non-accrual status
or (B) classified by HNBP as other loans specially mentioned,
substandard, doubtful, or loss loans, except in any case such
loans as were listed on HNBP's most recent internal classified
asset report, a copy of which has been made available to
BT Financial. For purposes of this Agreement, "non-performing"
and "non-accrual" shall mean any loan delinquent for 90 days or
more as to the payment of interest and/or principal.
Section 3.24 Core Deposits. HNBP has delivered to, or
made available for inspection by, BT Financial a summary of the
total amounts held by depositors that in the aggregate each have
less than $100,000 on deposit with HNBP ("Core Deposits"). In
addition, HNBP has delivered to, or made available for inspection
by, BT Financial a complete list of all depositors that have
monies on deposit at Huntington that are not Core Deposits.
Section 3.25 Personal Property. All personal property
used by HNBP in its business is either owned or leased by HNBP
and is in good operating condition, excepting for normal
maintenance and replacements, and is suitable for the operations
and business as currently conducted by HNBP.
Section 3.26 Labor Relations. There are no pending or
threatened labor disputes with any employees of HNBP. HNBP is
not a party to a collective bargaining agreement with any of its
employees. HNBP has no existing employment contracts with any of
its current or former employees, directors or officers.
Section 3.27 Related Party Transactions. Except as
disclosed in Schedule 3.27 to the Disclosure Memorandum, (a) HNBP
has no current contractual arrangement with or commitment to or
from any of its officers, directors or employees other than such
as are terminable at will; (b) all current extensions of credit
to the shareholders, officers, directors and employees of HNBP as
well as business organizations, individuals and affiliates
associated with HNBP have been made in the ordinary course of
HNBP's business on substantially the same terms, including
interest rates and collateral, as those prevailing at the time
for comparable transactions with other banking customers, and did
not, at the time they were entered into, involve more than the
normal risk of collectibility or present other unfavorable
features and are in compliance with all applicable regulations of
the OCC and the Federal Reserve Board (including without
limitation 12 C.F.R. 563.43); (c) since January 1, 1990, all
transactions with the shareholders, officers, directors,
employees and affiliates of HNBP have complied in all respects
with the rules of the OCC and the Federal Reserve Board regarding
such transactions, including delivery of all reports required
thereunder; and (d) the transactions contemplated by this
Agreement will not (either alone, or upon the occurrence of any
act or event, lapse of time or the giving of notice or failure to
cure) result in any payment (severance or otherwise) becoming due
from any of the Parties to any director, officer, employee or
affiliate of HNBP.
Section 3.28 Consents and Approvals. Except for (a) the
approval of the Department of Banking, the OCC, and the Federal
Reserve Board of BT Financial's acquisition of all of the issued
and outstanding shares of HNBP; (b) the approval of the
shareholders of HNBP; (c) the obtaining of third party consents
as set forth in the Schedule 3.28 to the Disclosure Memorandum;
and (d) the expiration of any regulatory waiting period, no
consents or approvals of or filings or registrations with any
third party or any public body, agency or authority are necessary
in connection with the execution and delivery by Huntington or
HNBP of this Agreement and their performance of the transactions
contemplated hereby.
Section 3.29 Investments. Except as set forth in
Schedule 3.29 to the Disclosure Memorandum, (a) the investments
reflected in HNBP's consolidated statement of financial condition
as of [December 31, 1994] are a true, correct and complete list
of the investments of HNBP, (b) none of such investments are in
real estate, equity securities or corporate debt securities not
of investment grade as defined in Section 28(d) of the Federal
Deposit Insurance Act; (c) no restrictions, contractual,
statutory or other, exist which would impair the ability of
BT Financial to freely dispose of such investments at any time;
(d) HNBP does not engage in interest rate hedging contracts; (e)
HNBP does not engage in other off-balance sheet activities
requiring disclosure under Financial Accounting Standard Number
105; (f) all mortgage-backed securities contained in the
portfolio of HNBP are fully insured by the FHLMC, FNMA, or GNMA,
or qualify as high quality mortgage related securities; and (g)
the investment portfolio of HNBP does not contain any agreement,
document or instrument that could be considered a high risk
collateralized mortgage obligation under applicable financial
institutions regulatory guidelines.
Section 3.30 Intellectual Property. HNBP does not own
any patents, trademarks, tradenames, copyrights and applications
therefor, or trade secrets. No claim, suit, or action is pending
or, to the knowledge of HNBP, threatened against HNBP alleging
that HNBP has infringed or is infringing upon the intangible
rights of another party, or that HNBP's use of any patents,
trademarks, trade names, copyrights or applications therefor, or
trade secrets infringes or conflicts with the rights of another
party.
Section 3.31 Minute Books. The minute books of HNBP,
which have been and will continue to be made available through
the Closing Date to BT Financial, contain true, correct, and
complete records of all meetings of the shareholders, the Board
of Directors, and all committees thereof and accurately reflect
all of the corporate action of the shareholders, the Board of
Directors, and all committees thereof.
Section 3.32 Reverse Repurchase Agreements. With
respect to all agreements pursuant to which HNBP has purchased
securities subject to an agreement to resell, if any, HNBP has a
valid, perfected first lien or security interest in the
government securities or other collateral securing the reverse
repurchase agreement, and the value of such collateral equals or
exceeds the amount of the debt secured thereby.
Section 3.33 Administration of Trust Accounts. HNBP
does not engage in any trust activities.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BT FINANCIAL
BT Financial hereby represents and warrants to Huntington
and HNBP as follows:
Section 4.1 Organization and Authority. BT Financial
is a corporation duly organized, validly existing and in good
standing under the laws of the Commonwealth of Pennsylvania, is
duly qualified to do business and is in good standing in all
jurisdictions where its ownership or leasing of property or the
conduct of its business requires it to be so qualified, and has
full corporate power and authority to own its properties and
assets, to carry on its business as it is presently being
conducted, and to enter into and carry out its obligations under
this Agreement.
Section 4.2 Authorization. The execution, delivery,
and performance of this Agreement by BT Financial and the
consummation by it of the transactions contemplated hereby have
been duly authorized by all necessary corporate action. This
Agreement constitutes a legal, valid and binding obligation of BT
Financial, enforceable in accordance with its terms, subject only
to the approval of the Pennsylvania Department of Banking, the
Federal Reserve Board, and the OCC, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization, or
other similar laws and subject to general principles of equity.
Section 4.3 Absence of Defaults. The execution,
delivery, and performance of this Agreement by BT Financial and
the consummation by it of the transactions contemplated hereby
do not and shall not: (a) require the consent, waiver, order,
registration, qualification, approval, license, or authorization
of any Person, court, regulatory authority, or other governmental
body, other than as specifically contemplated by this Agreement;
(b) subject to compliance with all applicable laws and
regulations, violate, with or without the giving of notice or the
passage of time or both, in any material respect any provision of
law applicable to it; (c) conflict with or result in a breach of
any terms of their respective charters or bylaws, or any material
agreement which would have a material adverse effect on the
ability of BT Financial to satisfy the covenants of this
Agreement or to complete the Acquisition.
Section 4.4 Litigation and Regulatory Matters. There
is no action, suit, proceeding, claim, or formal written protest
by any Person or agency, or any investigation or report by any
regulatory authority having jurisdiction over BT Financial or any
of its Affiliates or any of their respective businesses or
assets which is pending, or, to the knowledge of BT Financial ,
threatened against BT Financial or any of its Affiliates, or
their respective business or assets, which, if adversely
determined, would have a material adverse effect on the ability
of BT Financial to satisfy the covenants of this Agreement or to
complete the Acquisition.
Section 4.5 Disclosures. No representation or warranty
made herein by BT Financial contains any untrue statement of a
material fact, or omits to state a material fact necessary to
make the statements contained herein under the circumstances
under which they were made not misleading.
Section 4.6 Approval Delays. BT Financial knows of no
reason why the granting of any of the regulatory approvals
referred to in Section 8.7 would be denied or unduly delayed.
Section 4.7 Brokerage Commissions. No broker or finder
has acted for BT Financial in connection with the execution and
delivery of this Agreement or the Acquisition. BT Financial
shall indemnify and hold harmless HNBP from any claim, suit, loss
or expense resulting from a breach of the foregoing
representation and warranty.
ARTICLE 5
COVENANTS OF HUNTINGTON
From and after the date hereof and until the Closing,
Huntington and HNBP hereby covenant and agree with BT Financial
as follows:
Section 5.1 Information; Access. BT Financial and its
representatives and agents shall, at all times during normal
business hours prior to the Closing Date, have full and
continuing access to the facilities, operations, records, and
properties of HNBP, and Huntington and HNBP shall take such steps
as may be necessary to ensure that BT Financial and its
representatives and agents may, prior to the Closing Date, make
or cause to be made such reasonable investigation of the
operations, records, and properties of HNBP and of its financial
and legal condition as BT Financial shall deem necessary or
advisable to familiarize itself with such records, properties,
and other matters; provided, that such access or investigation
shall not interfere unnecessarily with the normal operations of
HNBP. All such records shall be subject to the Confidentiality
Agreement.
Section 5.2 Conduct of Business.
(a) From the date hereof to the Closing, HNBP shall carry
on its business diligently and substantially in the same manner
as is presently being conducted and shall not make or institute
or permit to be made or instituted any unusual or material change
in HNBP's methods of doing business without the prior written
consent of BT Financial. From the date hereof until the
Closing, unless otherwise contemplated by this Agreement or
consented to in writing in advance by BT Financial, HNBP shall:
(i) Use all reasonable efforts to preserve its present
business organization intact, keep available the services of
its present officers and employees, and preserve its present
relationships with Persons having business dealings with it
and to maintain all of its tangible property in customary
repair, order and condition (reasonable wear and tear
excepted);
(ii) Maintain its books, accounts, and records in the
usual, regular, and ordinary manner, on a basis consistent
with prior years and comply in all material respects with
all laws and regulations applicable to it and to the conduct
of its business;
(iii) Make no amendment to its charter or bylaws
and enter into no merger or consolidation with, sell a
significant portion of its assets to, acquire substantially
all the assets of, or enter into any other transaction not
in the ordinary course of business with, any other Person;
(iv) Grant or make no option, warrant, call, right,
commitment, or any other security or agreement of any
character obligating it to issue any shares of its capital
stock;
(v) Make no increase in the compensation payable or to
become payable by it to any employee except for normal
periodic increases, and as may be required, or as is normal
and customary based upon past practices over the last fiscal
year, under the terms of any existing HNBP Employee Benefit
Plan;
(vi) File in a timely manner all required filings with
all proper regulatory authorities and cause such filings to
be true and correct in all material respects;
(vii) Enter into no employment, consulting, or
similar agreement or arrangement, create or award no pension
or profit sharing plan, bonus, deferred compensation, death
benefit or retirement plan, or any other employee benefit
plan, or grant no bonuses to any officer, director, or
employee, except as set forth in Schedule 5.2(vii) to the
Disclosure Memorandum;
(viii) Pay no cash dividends to its stockholder,
issue no capital notes or shares of its capital stock, and
declare, pay, or make no other distribution (including
distribution of a stock dividend) or payment in respect of,
or redemption of, shares of HNBP Common Stock other than the
Permitted Dividends (as defined below), and make no split
with respect to the HNBP Common Stock;
(ix) File with the appropriate governmental agencies
all federal, state, and local income, franchise, excise,
sales, use, real and personal property, and other tax
returns and reports required to be filed by it and pay when
due any tax or any other liability or charge, other than
charges contested in good faith by appropriate proceedings;
(x) Not make any direct or indirect redemption,
purchase or other acquisition of any of its capital stock;
(xi) Not incur any liability or obligation or make any
commitment or disbursement, acquire or dispose of any
property or asset, make any contract or agreement, or engage
in any transaction, except in the ordinary course of
business;
(xii) Not, unless permitted by BT Financial or as
set forth in Schedule 5.2(xii) to the Disclosure Memorandum,
take any action that would entitle any employees of HNBP to
receive severance pay prior to the Closing Date;
(xiii) Not intentionally do anything or
intentionally fail to do anything that will cause a breach
or a default under any contract, agreement, commitment or
obligation to which it is a party or by which it may be
bound;
(xiv) Not, except for securities transactions
effected in the ordinary course of business with the prior
consent of BT Financial (which consent shall not be
unreasonably withheld), make any capital expenditures in
excess of $5,000 for any individual item or $25,000 in the
aggregate;
(xv) Not modify or extend any service bureau contracts,
hardware/software maintenance agreements, lease agreements
or other contracts that involve annual payments by HNBP that
exceed $5,000 per contract or $25,000 in the aggregate;
(xvi) Not change its lending, borrowing,
investment, asset/liability management, or other material
banking policies in any material respect except as may be
required by changes in applicable law, regulation or
regulatory directives, except that, in connection with the
closing of the transactions contemplated hereby, HNBP shall
cooperate in good faith with BT Financial to adopt policies,
practices, and procedures consistent with those utilized by
BT Financial and its affiliates;
(xv) Not open any branch offices;
(xvi) Not make, change, or revoke any tax election
or make any agreement or settlement with any taxing
authority;
(xvii) Promptly advise BT Financial in writing of
(A) the initiation of any litigation of any kind against it
or any litigation by it and (B) the happening of any event
which in the reasonable belief of its management may have an
adverse effect on either HNBP;
(xviii) Continue in effect its present insurance
coverage at the present levels on all properties, assets,
business, and personnel; and
(xix) Use its best efforts to preserve its business
organization intact, to keep available its present
employees, to preserve its relationships with customers and
others having business dealings with it, and to maintain all
of its tangible property in customary repair, order, and
condition (reasonable wear and tear excepted).
(b) Except as otherwise agreed to in writing by Huntington
and BT Financial, on or before the Closing, Huntington shall
cause all contracts, agreements, or arrangements between HNBP and
Huntington or any Huntington Affiliate to be terminated or
cancelled effective as of the Closing. Huntington shall ensure
that neither BT Financial nor any of its Affiliates shall have
any liability or any obligation pursuant to any Huntington
Employee Benefit Plan or any HNBP Employee Benefit Plan.
Furthermore, Huntington shall take or cause to be taken such
action as may be necessary to terminate HNBP's participation in
all of the Huntington Employee Benefit Plans, to terminate all of
the HNBP Employee Benefit Plans, and to make any distributions
required by the terms of any such plans. Notwithstanding
anything contained herein to the contrary, the obligations of
Huntington contained in the immediately two preceding sentences
shall survive the Closing.
Section 5.3 Subsequent HNBP Financial Statements. As
soon as available after the date hereof, Huntington and HNBP will
furnish BT Financial copies of HNBP's unaudited balance sheets
and the related statements of income and statements of changes in
stockholders' equity for each annual and quarterly period
subsequent to June 30, 1995, completed prior to the Closing Date,
the Call Reports for each quarterly period completed prior to the
Closing Date, and all other financial reports or statements
submitted to regulatory authorities after the date hereof and
prior to the Closing Date to the extent permitted by law, and
monthly lists of all doubtful, non-performing, or problem loans
(collectively, the "Subsequent HNBP Financial Statements"). The
Subsequent HNBP Financial Statements shall be prepared on a basis
consistent with past accounting practices and shall fairly
present the financial condition and results of operations for the
dates and periods presented.
Section 5.4 Advice of Changes. Between the date hereof
and the Closing Date, Huntington and HNBP shall promptly advise
BT Financial in writing of any fact which, if existing or known
at the date hereof, would have been required to be set forth or
disclosed in or pursuant to this Agreement or of any fact which,
if existing or known at the date hereof, would have made any of
the representations contained herein materially untrue. Prior to
the Closing Date, Huntington shall deliver to BT Financial a
supplement to the Disclosure Memorandum, which shall contain a
description of any and all such matters.
Section 5.5 Information Provided to BT Financial.
Huntington and HNBP agree that none of the information concerning
Huntington, HNBP, or any Affiliate of either of them, which is
provided or to be provided by Huntington, HNBP, or any such
Affiliate to BT Financial for inclusion in any documents to be
filed with any Governmental Authority in connection with the
transactions contemplated by this Agreement will, at the
respective times such documents are filed, be false or misleading
with respect to any material fact, or omit to state any material
fact necessary in order to make the statements therein not
misleading. Notwithstanding the foregoing, Huntington shall have
no responsibility for the truth or accuracy of any information
with respect to BT Financial or any of its Affiliates contained
in such filings.
Section 5.6 Reasonable Efforts; Further Actions.
Subject to the terms and conditions of this Agreement, Huntington
and HNBP agree to use all reasonable efforts to take, or cause to
be taken, all actions and to do, or cause to be done, all things
necessary, proper, or advisable under applicable laws and
regulations to satisfy the conditions set forth herein and to
consummate and make effective the transactions contemplated by
this Agreement by December 31, 1995. In case at any time after
the Closing any further action is necessary and reasonable to
carry out the purposes of this Agreement or to vest BT Financial
or any of its Affiliates with full title to all properties,
assets, rights, approvals, immunities, and franchises of HNBP,
the proper officers and directors of Huntington shall take or
cause to be taken all such necessary and reasonable action.
Section 5.7 Acquisition Proposals. Neither Huntington,
HNBP, nor any of their respective officers, directors, or other
affiliates (as defined in Rule 12b-2 under the Exchange Act)
(each, for the purposes hereof, an "Affiliate") shall, and
Huntington and HNBP shall cause their respective employees,
agents, and representatives (including, without limitation, any
investment banking, legal, or accounting firm retained by
Huntington or HNBP and any individual member or employee of the
foregoing) (each, an "Agent") not to, (i) initiate, solicit, or
encourage, directly or indirectly, any inquiries or the making or
implementation of any proposal or offer (including, without
limitation, any proposal or offer to any of them or their
respective shareholders) with respect to a merger, acquisition,
consolidation, recapitalization, liquidation, dissolution, or
similar transaction involving, or any purchase of all or a
substantial portion of the assets or equity securities of, HNBP
(any such proposal or offer being hereinafter referred to as an
"Acquisition Proposal") or (ii) engage in any negotiations
concerning, or provide any confidential information or data to,
or have any discussions with, any person relating to an
Acquisition Proposal, or (iii) otherwise cooperate in any effort
or attempt to make, implement, or accept an Acquisition Proposal.
Huntington or HNBP shall notify BT Financial immediately if any
inquiries, proposals, or offers related to an Acquisition
Proposal are received by, any confidential information or data is
requested from, or any negotiations or discussions related to an
Acquisition Proposal are sought to be initiated or continued
with, them or any individual or entity referred to in the first
sentence of this Section 5.7, and of the terms and other details
of any such Acquisition Proposal or request.
ARTICLE 6
COVENANTS OF BT FINANCIAL
From and after the date hereof and until the Closing, BT
Financial hereby covenants and agrees with Huntington and HNBP as
follows:
Section 6.1 Regulatory Filings. As soon as practicable
after the date hereof, BT Financial shall make all appropriate
filings necessary to obtain the regulatory approvals referred to
in Sections 8.7 and 9.4. BT Financial shall in good faith pursue
the regulatory approvals necessary to consummate the transactions
contemplated in this Agreement. At a reasonable time prior to
any such filing, BT Financial shall provide to Huntington's
counsel a copy of each application and any subsequent written
responses to regulatory comments thereon filed with federal or
state regulatory officials to obtain such approvals and
Huntington's counsel shall be given a reasonable opportunity to
comment thereon. BT Financial will provide Huntington's counsel
with a copy of all such filings and with a copy of all written
communications between BT Financial and any such regulatory
authorities relating to such regulatory filings and promptly will
inform Huntington's counsel as to the substance of any oral
communications with regulatory authorities.
Section 6.2 Advice of Changes. Between the date hereof
and the Closing Date, BT Financial shall promptly advise
Huntington in writing of any fact which, if existing or. known at
the date hereof, would have been required to be set forth or
disclosed in or pursuant to this Agreement or of any fact which,
if existing or known at the date hereof, would have made any of
the representations contained herein materially untrue.
Section 6.4 Reasonable Efforts. Subject to the terms
and conditions of this Agreement, BT Financial agree to use all
reasonable efforts to take, or cause to be taken, all actions and
to do, or cause to be done, all things necessary, proper, or
advisable under applicable laws and regulations to satisfy the
conditions set forth herein and to consummate and make effective
the transactions contemplated by this Agreement by December 31,
1995.
Section 6.5 Change of Name. As soon as reasonably
practicable after the Closing, BT Financial shall cause the name
of HNBP to be changed to a name that does not include the word
"Huntington." Notwithstanding anything contained herein to the
contrary, the obligations of BT Financial contained in this
Section shall survive the Closing.
ARTICLE 7
ADDITIONAL COVENANTS OF THE PARTIES
Section 7.1 Cooperation. Each of the parties and their
respective Affiliates will fully and promptly cooperate with each
other and their respective counsel and accountants in connection
with any steps to be taken as part of their obligations under
this Agreement.
Section 7.2 Employees of HNBP. If within 60 days
following the Closing Date, BT Financial or an Affiliate of BT
Financial discharges a current officer or employee of HNBP, other
than officers and employees of HNBP who are also officers or
employees of Huntington or any Huntington Affiliate other than
HNBP (an "HNBP Employee"), other than for cause, BT Financial
shall, or shall cause an Affiliate of BT Financial to, pay to
such HNBP Employee severance pay in an amount equal to such
employee's regular daily salary multiplied by the number of days
between the effective date of such employee's termination and the
date that is 60 days after the Closing Date. Except with respect
to any defined benefit pension plans sponsored by BT Financial or
an Affiliate of BT Financial, after the Closing, it is the
present intent of BT Financial to provide to eligible HNBP
Employees the same employee benefits offered to employees of BT
Financial or its Affiliates and to give credit to such HNBP
Employees for all service with HNBP or its predecessor for
purposes of eligibility, participation, and vesting, but not
benefit accruals, to the extent permissible under all applicable
laws and regulations and the terms and benefits of BT Financial's
current employee benefit plans or those of its Affiliates. With
respect to any defined benefit pension plans sponsored by BT
Financial or an Affiliate of BT Financial, HNBP Employees will be
provided such service and benefits thereunder, if any, as may be
required by the Code, ERISA, or other applicable law. For
purposes of this Section, employment by BT Financial shall
include employment at HNBP's principal place of business in
excess of twenty hours per week or full-time employment in an
office of BT Financial or one of its subsidiaries, unless such
office is greater than 75 miles from HNBP's principal place of
business. Nothing contained in this Section shall be deemed to
be a contract for employment nor a guaranty or right to
employment with BT Financial or its Affiliates for any person,
nor shall anything contained in this Section constitute an
agreement by BT Financial or its Affiliates not to revise, amend,
revoke, or terminate any employee benefit plan or arrangement
that it may in the future make available to its employees,
including HNBP Employees. Notwithstanding anything contained
herein to the contrary, the obligations of BT Financial contained
in this Section shall survive the Closing.
Section 7.3 Expenses. Except as otherwise provided
herein, all costs and expenses incurred by BT Financial or an
Affiliate of BT Financial, including the fees of their
accountants and attorneys, in connection with this Agreement and
the Acquisition shall be borne by BT Financial, and all costs and
expenses incurred by Huntington, HNBP, or any of their
Affiliates, including the fees of their respective accountants
and attorneys, in connection with this Agreement or the
Acquisition, shall be borne by Huntington.
Section 7.4 Confidentiality; Publicity. The
Confidentiality Agreement will continue in full force and effect,
except that such agreement is hereby modified and amended to
redefine the term "Evaluation Material," as used in the
Confidentiality Agreement, to include all Confidential
Information received on or after the date hereof by any of the
parties to the Confidentiality Agreement. Prior to the Closing,
the parties hereto will consult with each other before issuing
any press releases or otherwise making any public statements with
respect to this Agreement or the transactions contemplated hereby
and shall not issue any such press release or make any such
public statement without the prior consent of the other parties,
except as may be required by law or by the rules of the NASD in
the opinion of counsel. A copy of such press release or public
disclosure (or, if not in written form, a written description
thereof) shall be provided to the other parties prior to the
dissemination thereof.
Section 7.5 Permitted Dividends. The parties agree
that HNBP may declare and pay dividends (the "Permitted
Dividends") to Huntington (a) during the third quarter of 1995,
in the amount of $260,000, (b) during the fourth quarter of 1995,
in the amount of $266,000, and (c) during the first and any
subsequent quarter of 1996 prior to the Closing Date, in an
amount equal to the net earnings of HNBP for such quarter or for
such part of the quarter ending on the Closing Date for the
quarter in which the Closing occurs. HNBP shall make the final
Permitted Dividend payment to Huntington on or before the Closing
Date.
Section 7.6 Tax Matters.
(a) Sales and Transfer Taxes. All sales and transfer
Taxes (including stock transfer Taxes, if any), incurred in
connection with this Agreement and the transactions contemplated
hereby shall be borne by BT Financial. BT Financial and
Huntington shall, at their own expense, file or prepare for
filing all necessary Tax Returns and other documentation with
respect to all such sales or transfer Taxes. If required by
applicable law or if necessary to secure any applicable
exemption, BT Financial or Huntington, as the case may be, shall
join in the execution of any such Tax Returns or other
documentation.
(b) Tax Sharing Agreements. Any tax sharing agreement
between Huntington Affiliates and HNBP (except as specified in
this Agreement) shall be terminated as of the Closing and will
have no further effect for any taxable year (whether the current
year, future year, or a past year).
(c) Taxes of Other Persons. Huntington agrees to
indemnify and hold harmless BT Financial and HNBP from and
against any adverse tax consequences that BT Financial or HNBP
may suffer resulting from, arising out of, relating to, in the
nature of, or caused by any tax liability of Huntington
Bancshares and its Affiliates, other than HNBP, arising under
Section 1.1502-6 of the rules and regulations promulgated by the
IRS pursuant to the Code (or any similar provision of state or
local law).
(d) Returns for Periods Through the Closing Date.
Huntington shall cause the income of HNBP to be included on
Huntington Bancshares' consolidated federal income tax returns
for all periods through and including the Closing Date and pay
all federal income taxes attributable to such income (other than
Taxes arising from an event occurring after the Closing which is
not in the ordinary course of business or an event referred to in
Section 7.6(e)). BT Financial agrees to report all transactions
occurring after the Closing Date, all transactions occurring
after the Closing which are not in the ordinary course of
business, and all transactions referred to in Section 7.6(e) on
BT Financial's or its Affiliates Tax Returns and pay the Taxes
attributable to such transactions. After the Closing, BT
Financial will furnish tax information to Huntington for
inclusion in Huntington Bancshares' federal income tax return for
the period which includes the Closing Date in accordance with
HNBP's past customs and practice. Such information shall be
provided within two months after the Closing Date. The income of
HNBP will be apportioned to Huntington for the period up to and
including the Closing Date and to BT Financial or its Affiliates
for the period after the Closing Date, by closing the books of
HNBP as of the Closing Date or, if the books of HNBP are not to
be closed as of the Closing Date, by reference to the HNBP
Financial Statements as of the last day of the month ended
immediately prior to the month in which the Closing occurs, with
an appropriate adjustment for the period between the end of such
prior month and the Closing Date. Prior to the Closing,
Huntington will direct HNBP to make a dividend or similar payment
to Huntington or a Huntington Affiliates equal to the unpaid
Taxes reflected in the HNBP Financial Statements as of the
Closing Date or, if HNBP Financial Statements are not to be
prepared for the period ending as of the Closing Date, equal to
the unpaid taxes reflected in the HNBP Financial Statements dated
as of the last day of the month ended immediately prior to the
month in which the Closing occurs, with an appropriate adjustment
for the period between the end of such prior month and the
Closing Date. Such amount shall be in addition to the Permitted
Dividends specified in Section 7.5. BT Financial will, at
Huntington's request, join in making any tax elections that do
not have a material adverse effect on BT Financial.
(e) Section 338 Election or Similar Tax Treatment. BT
Financial and its Affiliates shall be liable for, and shall
indemnify and hold Huntington and its Affiliates harmless
against, any liability for Taxes of Huntington or any of its
Affiliates resulting from: (i) an election or deemed election
under Section 338 of the Code in any way related to this
Agreement or attributable to an occurrence involving HNBP or its
successor after the Closing; or (ii) any other election,
distribution, contribution, liquidation, merger, reorganization,
reincorporation, or other event made or caused by BT Financial or
its Affiliates (including any event contemplated by this
Agreement) which occurs after the Closing.
(f) Indemnity for and Refund of Taxes.
(i) In addition to the indemnification provided in
Section 7.6(c), Huntington shall pay, indemnify, defend, and
hold harmless BT Financial and HNBP against all Taxes and
liability relating to Tax Returns (including interest and
penalties and any pending or future assessments),
attributable to HNBP with respect to any taxable period
ending on or prior to the Closing Date except those
resulting from an event occurring after the Closing which is
not in the ordinary course of business or an event referred
to in Section 7.6(e). The amount of Huntington's
indemnification obligation under this Section 7.6(f) shall
be reduced by any amount previously reserved or accrued for
Taxes on the HNBP Financial Statements dated as of the
Closing Date or, if the HNBP Financial Statements are not to
be prepared for the period ending as of the Closing Date,
such amount shall be reduced by any amount previously
reserved or accrued for Taxes on the HNBP Financial
Statements dated as of the last day of the month ended
immediately prior to the month in which the Closing occurs,
with an appropriate adjustment for the period between the
end of such prior month and the Closing Date.
Notwithstanding any other provisions of this Agreement, the
obligation of Huntington to indemnify and hold harmless BT
Financial and HNBP from Taxes under this Section 7.6(f)
shall begin on the Closing Date and end thirty (30) days
following the expiration of the statute of limitations
applicable to the assessment and collection of any Taxes for
and against which BT Financial and HNBP are indemnified and
held harmless by Huntington hereunder, to the extent that a
claim for indemnity hereunder has not theretofore been made
in writing.
(ii) BT Financial shall indemnify, defend, and hold
harmless Huntington and its Affiliates against all Taxes and
liabilities relating to Tax Returns attributable to HNBP
with respect to any taxable period beginning after the
Closing Date and for Taxes (including interest and penalties
and any pending or future assessments) resulting from any
transaction occurring after the Closing which is not in the
ordinary course of business and for any transaction referred
to in Section 7.6(e).
(iii) Huntington shall be entitled to any credits
or refunds of Taxes (including interest) attributable to
HNBP with respect to any taxable period ending on or prior
to the Closing Date. Any tax refund (including interest) to
which Huntington is entitled under this Section 7.6(f) but
that is received by or credited to BT Financial and HNBP at
any time after the Closing Date shall promptly be paid to
Huntington following such receipt or crediting.
(g) Income Tax Audits. BT Financial will have the
responsibility for all audits or other proceedings involving any
income tax liability involving HNBP, except that Huntington shall
be responsible for any audit or other proceeding involving a
period for which a return was (or which the taxing authority
alleges should have been) filed on a consolidated, combined, or
unitary basis with Huntington Bancshares. The party responsible
for the audit or other proceeding (the "Responsible Party") shall
be entitled to receive, at least five days in advance of any
payment that it makes in connection with the settlement or other
disposition of such proceeding, the part of any such payment for
which the other party (the "Other Party") is liable under this
Section. The Responsible Party shall give the Other Party prompt
notice of any preparer's adjustment and any discussions that are
likely to result in a preparer's adjustment to a return that may
result in an additional liability to the Other Party. Huntington
and BT Financial shall cooperate in the conduct of any audit or
other proceeding and each shall execute and deliver such powers
of attorney and other documents as are necessary to carry out the
intent of this Section.
(h) Preparation of W-2's. Huntington will provide BT
Financial with all necessary payroll records for the calendar
year which includes the Closing Date. BT Financial shall furnish
a Form W-2 and other appropriate state or local forms to each
employee employed by BT Financial who had been employed by
Huntington disclosing all wages and other compensation paid for
such calendar year, and taxes withheld therefrom, and Huntington
shall be relieved of the responsibility to do so.
Section 7.7 Environmental Study. Within 45 days
following the date of this Agreement, at the option of BT
Financial, BT Financial shall cause a Phase I environmental
assessment ("Phase I assessment") of each of HNBP's owned branch
offices to be completed, at its sole cost and expense. If BT
Financial should determine pursuant to the results of such Phase
I assessment that (i) there has been any storage, discharge,
disposal, release, or emission of any Hazardous Substance in, on,
or from any Owned Real Property and (ii) BT Financial reasonably
believes that it could become responsible for the remediation of
such storage, discharge, disposal, release, or emission or become
liable for monetary damages resulting therefrom, then BT
Financial shall inform Huntington and HNBP in writing with
specificity within fifteen days of BT Financial's receipt of the
Phase I assessment. Upon receipt of such notice, if the costs to
remedy the defects specified in such notice are reasonably
expected to be less than $50,000 in the aggregate, HNBP shall
take all necessary actions to correct the defects specified in
the notice. Upon completion of such corrective action to the
satisfaction of BT Financial, or HNBP's proving to BT Financial
that BT Financial would not be responsible for remediation or be
liable for monetary damages (unless, in BT Financial's reasonable
opinion, the results of the Phase I assessment would materially
adversely affect the marketability of said property), BT
Financial shall remove any objection it may have with respect to
that certain parcel of Owned Real Property and proceed promptly
toward Closing. If the costs to remedy the specific defects set
forth in such notice are reasonably expected to exceed $50,000 in
the aggregate, then HNBP may, but shall not be required to, take
all necessary actions to correct the defects specified in the
notice, and if HNBP corrects such defect to the satisfaction of
BT Financial, BT Financial shall remove any objection it may have
with respect to that certain parcel of Owned Real Property and
proceed promptly toward Closing, and, if HNBP elects not to
correct such defect or if HNBP fails to correct such defect, BT
Financial, in its sole discretion, may terminate this Agreement.
Section 7.8 Indemnification by Huntington. Huntington,
and, if there shall be no Closing, HNBP, shall indemnify, defend,
save, and hold BT Financial and its officers, directors,
employees, agents, and Affiliates, including, after the Closing,
HNBP (collectively, the "Indemnified Parties" and, individually,
an "Indemnified Party") harmless from and against all demands,
claims, allegations, assertions, actions or causes of action,
assessments, losses, damages, deficiencies, liabilities, costs,
and expenses (including reasonable legal fees, interest,
penalties, and all reasonable amounts paid in investigation,
defense or settlement of any of the foregoing, whether or not the
underlying demands, claims, allegations, etc., of third parties
are meritorious) (collectively, "Damages") asserted against,
imposed upon, resulting to, required to be paid by, or incurred
by any of the Indemnified Parties, directly or indirectly, in
connection with or arising out of (a) the EEOC claim filed
against HNBP by Xxxxx Xxxxxxx, (b) any potential claim that may
be asserted against HNBP in connection with or arising out of an
incident that occurred between Xxxxx Shinnshock, Jr., and an
individual employed by or otherwise affiliated with Xxxxxx Steel
Company, and (c) any liability relating in any way to the
resolution of the pending dispute with the Pennsylvania
Department of Taxation in relation to the New Bank Tax Credit
taken by HNBP for tax years 1990 and 1991 (the "New Bank Credit
Dispute"). The parties agree that, prior to the Closing Date,
Huntington shall transfer the liability currently on the books of
HNBP as a reserve in relation to the New Bank Tax Credit Dispute,
in the aggregate amount of $157,008, and shall be entitled to
transfer cash in the same amount from HNBP to Huntington, by way
of dividend or otherwise, which shall be in addition to the
Permitted Dividends specified in Section 7.5 hereof.
Section 7.9 Notice of Claims. If any Indemnified Party
believes that it has suffered or incurred or will suffer or incur
any Damages for which it is entitled to indemnification under
Section 7.5, such Indemnified Party shall so notify the party or
parties from whom indemnification is being claimed (the
"Indemnifying Party") with reasonable promptness and reasonable
particularity in light of the circumstances then existing. If
any action at law or suit in equity is instituted by or against a
third party with respect to which any Indemnified Party intends
to claim any Damages, such Indemnified Party shall promptly
notify the Indemnifying Party of such action or suit. The
failure of an Indemnified Party to give any notice required by
this Section shall not affect any of such party's rights under
Section 7.5 or otherwise except and to the extent that such
failure is actually prejudicial to the rights or obligations of
the Indemnified Party.
Section 7.10 Third Party Claims. The Indemnified Party
shall have the right to conduct and control, through counsel of
its choosing, the defense of any third party claim, action, or
suit, and the Indemnified Party may compromise or settle the
same, provided that the Indemnified Party shall give the
Indemnifying Party advance notice of any proposed compromise or
settlement. The Indemnified Party shall permit the Indemnifying
Party to participate in the defense of any such action or suit
through counsel chosen by the Indemnifying Party, provided that
the fees and expenses of such counsel shall be borne by the
Indemnifying Party. If the Indemnified Party permits the
Indemnifying Party to undertake, conduct, and control the conduct
and settlement of such action or suit, the Indemnifying Party
shall not thereby permit to exist any Encumbrance upon any asset
of the Indemnified Party; the Indemnifying Party shall not
consent to any settlement that does not include as an
unconditional term thereof the giving of a complete release from
liability with respect to such action or suit to the Indemnified
Party; the Indemnifying Party shall permit the Indemnified Party
to participate in such conduct or settlement through counsel
chosen by the Indemnified Party; and the Indemnifying Party shall
agree promptly to reimburse the Indemnified Party for the full
amount of any Damages, including fees and expenses of counsel for
the Indemnified Party, incurred after giving the foregoing notice
to the Indemnifying Party and prior to the assumption of the
conduct and control of such action or suit by the Indemnifying
Party.
ARTICLE 8
CONDITIONS PRECEDENT TO OBLIGATIONS OF BT FINANCIAL
The obligations of BT Financial under this Agreement are
subject, unless waived by BT Financial, to the satisfaction of
the following conditions on or prior to the Closing:
Section 8.1 Disclosure Memorandum. BT Financial shall
have reviewed the Disclosure Memorandum and all contracts,
commitments, leases, deeds, agreements, and other documents
relating to the information set forth therein or herein and shall
be satisfied, in a good faith exercise of its sole discretion,
that such Disclosure Memorandum and related documents do not
disclose any adverse facts, problems, or conditions which, when
viewed in the aggregate, are material. This condition shall be
deemed to have been satisfied on the close of business on the day
that is fifteen (15) Business Days after receipt by BT Financial
of the Disclosure Memorandum unless, prior to such time, BT
Financial has notified Huntington and HNBP that it is not
satisfied with the contents of the Disclosure Memorandum or
related documents. If BT Financial shall so notify Huntington
and HNBP that it is not satisfied with the contents of the
Disclosure Memorandum or related documents because such materials
disclose one or more adverse facts, problems, or conditions,
whether material or not, individually or in the aggregate,
Huntington and HNBP shall make a good faith effort to cure the
defect or defects to the satisfaction of BT Financial within a
period of fifteen (15) Business Days after receipt by Huntington
and HNBP of such notice. If Huntington and HNBP cure the defect
or defects within such cure period and BT Financial gives written
notice to Huntington and HNBP of its satisfaction with such cure,
or if BT Financial is willing to waive such defect or defects and
gives Huntington and HNBP written notice of such waiver, this
condition shall be deemed to have been satisfied. If BT
Financial has not given such written notice of either
satisfaction or waiver within ten (10) Business Days after the
expiration of such cure period, and if the adverse facts,
problems, or conditions which give rise to such defects, when
viewed in the aggregate, are material, then BT Financial shall
have the right to terminate this Agreement.
Section 8.2 Representations and Warranties. The
representations and warranties made by Huntington and HNBP in
this Agreement shall be true and correct on and as of the Closing
Date with the same effect as though such representations and
warranties had been made or given on and as of the Closing Date,
except for changes contemplated by this Agreement and except also
for representations and warranties as of a specified time other
than the Closing Date, which shall be true and correct as of such
specified time; Huntington and HNBP shall have performed and
complied with all of their obligations under this Agreement that
are to be performed or complied with prior to or on the Closing
Date; and Huntington and HNBP shall have delivered to BT
Financial a certificate of their respective Presidents or any
Vice President to the same effect.
Section 8.3 Opinion Of Counsel for Huntington. BT
Financial shall have received from Huntington's counsel an
opinion, dated as of the Closing Date, addressed to BT Financial
in substantially the form attached as Exhibit B.
Section 8.4 Litigation. HNBP shall not be a party to,
or to the knowledge of Huntington threatened by, any actions,
suits, proceedings, litigation, or legal proceedings which, in
the reasonable opinion of BT Financial, have or are likely to
have an adverse effect on the financial condition, assets, or
business of HNBP, and no action, suit, proceeding, or claim shall
have been instituted, made, or threatened by any Person relating
to the Acquisition or the validity or propriety of the
transactions contemplated by this Agreement which BT Financial
reasonably believes will result in material damages or an order
enjoining the Acquisition.
Section 8.5 Accuracy of Financial Statements. The HNBP
Financial Statements and the Subsequent HNBP Financial
Statements, previously or subsequently furnished to BT Financial
by Huntington shall not be inaccurate in any material respect.
At the time of the Closing, HNBP will not have any liability or
obligation of any kind to Huntington or any Affiliate of
Huntington.
Section 8.6 Absence of Certain Changes or Events. From
the date hereof until the time of the Closing, there shall be and
have been no material adverse change in the financial condition,
assets, business, results of operations, or prospects of HNBP
other than material adverse changes due to general economic
events outside the control of Huntington or HNBP or changes
resulting from or attributable to changes in laws or regulations,
or interpretations thereof, that affect the banking industry
generally.
Section 8.7 Regulatory Approvals. BT Financial shall
have received, in form and substance reasonably satisfactory to
BT Financial, any and all required approvals from the Federal
Reserve Board, the Pennsylvania Department of Banking, and any
other necessary Governmental Authority having jurisdiction, for
the consummation of the transactions contemplated by this
Agreement and all applicable waiting periods shall have expired.
No such approvals or consents shall require BT Financial or its
subsidiary to enter into any agreement or stipulation that is
inconsistent with prior OCC or Pennsylvania Department of Banking
practice or procedure.
Section 8.8 Performance of Covenants. Each of the acts
and undertakings to be performed by Huntington and HNBP hereunder
on or before the Closing Date shall have been duly performed; and
the President and Secretary of each of Huntington and HNBP shall
have executed and delivered to BT Financial a certificate, dated
as of the Closing Date, to the effect that such officers have no
knowledge of the nonfulfillment of the foregoing condition.
Section 8.9 No Injunction. No action, proceeding,
regulation, or legislation shall have been instituted or
threatened before any court, governmental agency, or legislative
body to enjoin, restrain, or prohibit, or to obtain substantial
damages in respect of, or which is related to or arises out of,
this Agreement or the consummation of the Acquisition, which, in
the good faith judgment of BT Financial, would make it
inadvisable to consummate the Acquisition.
Section 8.10 No Material Misstatements or Omissions
BT Financial shall not have discovered any material error,
misstatement, or omission in any of the representations or
warranties of Huntington or HNBP contained in this Agreement or
in any certification or information furnished in writing or to be
furnished in writing to BT Financial hereunder, or any material
failure to perform or satisfy any covenants of Huntington or HNBP
contained herein.
Section 8.11 Expenses. Huntington shall have paid all
out-of-pocket expenses and disbursements, including legal,
accounting and investment banking fees incurred by HNBP in
connection with the transactions contemplated hereby; and the
President and Secretary of each of Huntington and HNBP shall each
have executed and delivered to BT Financial a certificate, dated
as of the Closing Date, to the effect that such officers have no
knowledge of the nonfulfillment of the foregoing condition.
Section 8.12 Waivers. A condition precedent as set
forth in this Article 8 shall be deemed to be satisfied if it has
been materially and reasonably satisfied, and no Party shall fail
to consummate the transactions described herein by reason of a
breach of any covenant or the failure to satisfy a condition
precedent unless such breach or failure is material to such
transactions as a whole. Any condition waived in writing by the
Party entitled to the benefit thereof shall thereafter cease to
be a condition precedent for purposes of this Article 8.
ARTICLE 9
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF HUNTINGTON
The obligations of Huntington under this Agreement are
subject, unless waived by Huntington, to the satisfaction on or
prior to the Closing of the following conditions:
Section 9.1 Representations and Warranties True at
Closing Date. The representations and warranties made by BT
Financial in this Agreement shall be true and correct on and as
of the Closing Date with the same effect as though such
representations and warranties had been made or given on and as
of the Closing Date, except for changes contemplated by this
Agreement and except also for representations and warranties as
of a specified time other than the Closing Date which shall be
true and correct at such specified time; BT Financial shall have
performed and complied with all of its obligations under this
Agreement which are to be performed or complied with prior to or
on the Closing Date; and BT Financial shall have delivered to
Huntington a certificate of its Chairman, President, or any Vice
President to the same effect.
Section 9.2 Opinion of Counsel for BT Financial.
Huntington shall have received from counsel for BT Financial an
opinion, dated as of the Closing Date, addressed to Huntington in
substantially the form attached as Exhibit A.
Section 9.3 No Injunction. No action, proceeding,
regulation, or legislation shall have been instituted or
threatened before any court, governmental agency or legislative
body to enjoin, restrain or prohibit, or to obtain substantial
damages in respect of, or which is related to or arises out of,
this Agreement or the consummation of the Acquisition, which, in
the good faith judgment of Huntington and HNBP, would make it
inadvisable to consummate the Acquisition.
Section 9.4 Regulatory Approvals, Orders, Decrees, and
Judgments. BT Financial shall have received, in form and
substance reasonably satisfactory to Huntington, any and all
required approvals from the Federal Reserve Board, Pennsylvania
Department of Banking, and any other necessary Governmental
Authority having jurisdiction, for the consummation of the
transactions contemplated by this Agreement and all applicable
waiting periods shall have expired.
Section 9.5 Performance of Covenants. Each of the acts
and undertakings to be performed by BT Financial hereunder on or
before the Closing Date shall have been duly performed; and the
President and Secretary of BT Financial shall each have executed
and delivered to Huntington a certificate, dated as of the
Closing Date, to the effect that such officers have no knowledge
of the nonfulfillment of the foregoing condition.
Section 9.6 Waivers. A condition precedent as set
forth in this Article 9 shall be deemed to be satisfied if it has
been materially and reasonably satisfied, and no party shall fail
to consummate the transactions described herein by reason of a
breach of any covenant or the failure to satisfy a condition
precedent unless such breach or failure is material to such
transactions as a whole. Any condition waived in writing by the
party entitled to the benefit thereof shall thereafter cease to
be a condition precedent for purposes of this Article 9.
ARTICLE 10
TERMINATION AND ABANDONMENT
Section 10.1 Reasons for Termination and Abandonment.
This Agreement may be terminated and abandoned upon prompt
written notice to the other party or parties before the Closing:
(a) By mutual consent of the boards of directors of all the
parties;
(b) By Huntington or HNBP at any time after the date which
is six months after the date of this Agreement or such later date
as shall have been agreed to in writing by the parties (the later
of such dates being hereinafter referred to as the "Termination
Date"), if any of the conditions provided for in Article 9 of
this Agreement have not been met and have not been waived in
writing by Huntington or HNBP; provided that the terminating
party has given the other party written notice with respect
thereto at least 10 days prior to such termination and has given
the other party a reasonable opportunity to discuss the matter
with a view to achieving a mutually acceptable resolution;
(c) By BT Financial at any time after the Termination Date
if any of the conditions provided for in Article 8 of this
Agreement have not been met and have not been waived in writing
by BT Financial; provided that the terminating party has given
the other party written notice with respect thereto at least 10
days prior to such termination and has given the other party a
reasonable opportunity to discuss the matter with a view to
achieving a mutually acceptable resolution; or
(d) By any of the parties if the approval of any of the
applications referred to in Sections 8.7 and 9.4 is denied.
Section 10.2 Effect of Termination or Abandonment.
Except as otherwise expressly provided in this Agreement, in the
event of the termination of this Agreement and the abandonment of
the Acquisition pursuant to Section 10.1, this Agreement shall
become null and void and there shall be no liability or
restrictions on the future activities on the part of any party
hereto, or its directors, officers, or stockholders, except for
the obligations of the parties concerning confidentiality
referred to in the Confidentiality Agreement.
ARTICLE 11
MISCELLANEOUS
Section 11.1 Governing Law. All questions concerning
the construction, validity, and interpretation of this Agreement,
and the performance of the obligations imposed by this Agreement
shall be governed by the laws of the State of Pennsylvania
applicable to contracts made and wholly performed in such state
without regard to conflicts of laws, except to the extent
superseded by federal law.
Section 11.2 Assignment. Neither this Agreement nor any
of the rights or obligations hereunder may be assigned, in whole
or in part, by any of the parties hereto without the prior
written consent of the other parties hereto and any purported
assignment in violation hereof shall be void and of no effect.
Section 11.3 Amendment and Modification. The parties
may by written agreement signed by all parties: (a) extend the
time for the performance of any of the obligations or other acts
of the parties hereto; (b) waive any inaccuracies in the
representations or warranties contained in this Agreement or in
any document delivered pursuant to this Agreement; and (c) waive
compliance with or modify, amend, or supplement any of the
conditions, covenants, agreements, representations, or warranties
contained in this Agreement or waive or modify performance of any
of the obligations of any of the parties hereto which are for the
benefit of the waiving party. The failure of any party hereto to
enforce at any time any provision of this Agreement shall not be
construed to be a waiver of such provision, nor in any way affect
the validity of this Agreement or any part hereof or the right of
any party thereafter to enforce each and every such provision.
No waiver of any breach of this Agreement shall be held to
constitute a waiver of any other or subsequent breach.
Section 11.4 Notices. All notices, requests, and other
communications hereunder shall be in writing (which shall include
telecopier communication) and shall be deemed to have been duly
given if delivered by hand or by overnight express delivery
service, mailed with first class postage prepaid, or telecopied
if confirmed immediately thereafter by also mailing a copy of any
notice, request, or other communication by first class mail,
postage prepaid:
(a) If to Huntington to: and:
Zuheir Sofia Xxxxxxx X. XxXxxxxxxx XX
President Chairman and Chief
Executive Officer
Huntington Bancshares Huntington Bancshares
Incorporated West Virginia,Inc.
00 Xxxxx Xxxx Xxxxxx 000 Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000 Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
with a copy to: and:
Xxxxx X. Xxxxxxx, Esq. Xxxxxxx X. Xxxxxxxxx, Esq.
General Counsel and Porter, Wright, Xxxxxx & Xxxxxx
Secretary 00 Xxxxx Xxxx Xxxxxx
Xxxxxxxxxx Xxxxxxxxxx Xxxxxxxx, Xxxx 00000
Incorporated Telephone: (000) 000-0000
00 Xxxxx Xxxx Xxxxxx Telecopier: (000) 000-0000
Xxxxxxxx, Xxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
(b) If to BT Financial, to:
Xxxx X. Xxxxxxxx Xxxxxx X. Xxxxxxxx
Chairman, President, and President
Chief Executive Officer Fayette Bank
BT Financial Corporation 00 Xxxx Xxxx Xxxxxx
000 Xxxx Xxxxxx Xxxxxxxxx, Xxxxxxxxxxxx 00000
Xxxxxxxxx, Xxxxxxxxxxxx 00000 Telephone: (000) 000-0000
Telephone: (000) 000-0000 Telecopier: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxx Xxxxxxx, Esq.
Xxxxxxxxxxx & Xxxxxxxx
0000 Xxxxxx Xxxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
or to such other Person or place as the parties shall furnish to
each other in writing. Except as otherwise provided herein, all
such notices, requests, or other communications shall be
effective: (i) if delivered by hand, when delivered; (ii) if
mailed in the manner provided in this Section, five Business Days
after deposit with the United States Postal Service; (iii) if
delivered by overnight express delivery service, on the next
Business Day after deposit with such service; (iv) if by
telecopier, on the next Business Day if also confirmed by first
class mail, postage prepaid.
Section 11.5 Headings. The captions and headings of
articles, sections, schedules, and exhibits appearing in or
attached to this Agreement or to the Disclosure Memorandum have
been inserted solely for convenience of reference and shall not
be considered a part of this Agreement nor shall any of them
affect the meaning or interpretation of this Agreement or any of
its provisions.
Section 11.6 Entire Agreement. This Agreement and
exhibits hereto, the Disclosure Memorandum, and the
Confidentiality Agreement constitute the entire understanding and
agreement of the parties hereto and supersede all other prior
agreements and understandings, written or oral, relating to such
subject matter between the parties. This Agreement and every
representation, warranty, covenant, agreement, and provision
hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted
assigns.
Section 11.7 Severability. Whenever possible, each
provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but if any
provision of this Agreement is held to be prohibited by or
invalid under applicable law, such provision will be ineffective
only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining
provisions of this Agreement unless the consummation of the
transactions contemplated hereby is adversely affected thereby.
Upon such determination that any term or other provision is
invalid, illegal, or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so
as to effect the original intent of the parties as closely as
possible in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled to the fullest extent possible.
Section 11.8 Counterparts. This Agreement and any
amendments thereto may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 11.9 All Reasonable Efforts. Each party
covenants and agrees that it will use all reasonable efforts to
bring about the transactions contemplated by this Agreement as
soon as practicable and, if possible, by December 31, 1995,
provided, that this Section 11.9 shall not obligate the parties
to remedy any breach of any of its representations, warranties
and covenants herein. In the event that any party becomes aware
of the occurrence or impending occurrence of any event which
would constitute or cause a breach by it of any of the
representations or warranties herein, or would have constituted
or caused a breach by it of any of the representations or
warranties herein had such an event occurred or been known prior
to the date hereof, that party shall immediately give detailed
and written notice thereof to the other party.
Section 11.10 Survival of Representations and Warranties.
Except as otherwise expressly provided herein, the covenants,
representations, and warranties contained in this Agreement shall
not survive after the Closing.
Section 11.11 No Third Party Beneficiaries. This
Agreement is not intended to and shall not create any rights in
or confer any benefits upon any Person or entity other than the
parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers as of the
day and year first written above.
ATTEST: HUNTINGTON BANCSHARES WEST
VIRGINIA, INC.
By: ______________________ By: _______________________
Xxxx X. Xxxxxxxxxxx Zuheir Sofia
Assistant Secretary Vice Chairman
ATTEST: THE HUNTINGTON NATIONAL
BANK OF PENNSYLVANIA
By: ______________________ By: _______________________
Xxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxx,
Secretary President
(Seal of HNBP)
ATTEST: BT FINANCIAL CORPORATION
By: ______________________ By: _______________________
Xxxxxx X. Xxxxxx, Xx. Xxxx X. Xxxxxxxx
Secretary Chairman, President, and
Chief Executive Officer
EXHIBIT A
Opinion Letter
of
Xxxxxxxxxxx & Xxxxxxxx LLP
December 14, 0000
Xxxxxxxxxx Xxxxxxxxxx Xxxx Xxxxxxxx, Inc.
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
Ladies and Gentlemen:
We have acted as counsel for BT Financial Corporation,
a Pennsylvania corporation ("BT Financial"), in connection with
the Stock Purchase Agreement dated as of September 1, 1995 (the
"Agreement"), by and among BT Financial, Huntington Bancshares
West Virginia, Inc., an Ohio corporation ("Huntington"), and The
Huntington National Bank of Pennsylvania ("HNBP"), a national
banking association which is a wholly owned subsidiary of
Huntington. In that capacity we are furnishing this opinion to
you pursuant to Section 9.2 of the Agreement. Capitalized terms
used and not defined herein shall have the meanings set forth in
the Agreement.
We have examined (i) the Agreement, (ii) certified
copies of resolutions of the Board of Directors of BT Financial,
adopted on December 14, 1995, and (iii) the Restated and Amended
Articles of Incorporation and the Bylaws of BT Financial, as
amended to date. In addition, with your permission, we have
relied without independent investigation on a certificate of the
Treasurer of BT Financial, a copy of which is attached hereto, in
connection with the opinion set forth in paragraph 3 below. We
have also examined such other documents, corporate records,
certificates of public officials, legal opinions, statutes,
decisions and questions of law as we deemed necessary or
appropriate to enable us to express an informed opinion on the
matters hereinafter set forth.
In making such examinations and rendering an opinion on
the matters set forth below, we have assumed: (a) the legal
capacity of each natural person, (b) the genuineness of all
signatures, the authenticity of all documents submitted to us as
originals, the conformity to original documents of documents
submitted to us as certified, telecopied or photostatic copies or
as exhibits, the authenticity of the originals of such documents,
no modification of any provision of any document or waiver of any
right or remedy, and no exercise of any right or remedy other
than in a commercially reasonable or conscionable manner and in
good faith, (c) the due authorization, completion, execution,
acknowledgement (where provided for in the applicable documents)
and delivery of all documents and instruments, heretofore
executed and delivered or hereafter to be executed and delivered,
other than the due execution and delivery of such documents and
instruments by BT Financial, (d) that Huntington is duly
incorporated and validly subsisting under the laws of the
Commonwealth of Ohio, (e) that HNBP is duly organized and validly
existing under the laws of the United States of America, (f) that
Huntington and HNBP each have the requisite corporate power and
authority to execute and deliver the Agreement and to perform
their obligations thereunder and all such actions have been duly
and validly authorized by all necessary proceedings on their
parts and on the parts of their respective shareholders, and (g)
the legality, validity, binding effect and enforceability as to
each person, other than BT Financial, of each document heretofore
executed and delivered or hereafter to be executed and delivered
by such person. We express no opinion on any matter that is
affected by any actual fact or circumstance inconsistent with or
contrary to any assumption set forth in this letter or any
factual statement set forth in any certificate or document
referred to herein as one on which we have relied.
Whenever our opinion with respect to the existence or
absence of facts is indicated to be based on our knowledge, our
knowledge is based solely upon (i) the current actual knowledge
of those lawyers of this Firm engaged in the representation of BT
Financial with respect to the transactions to which this opinion
relates, (ii) statements or assurances as to matters of fact
contained in the certificates or comparable documents of officers
of BT Financial, and (iii) the representations and warranties
contained in the Agreement. Although we have made no independent
investigation or verification of any matter set forth in the
documents referred to in (ii) and (iii) above, nothing has come
to our attention indicating that such reliance by us or by you is
not justified. We further advise you that, with respect to
numbered paragraphs 4 and 5 below: (a) we have not been engaged
to give substantive attention to any legal or governmental
proceedings or orders to which BT Financial may be a party; and
(b) we have made no special investigation as to the factual
matters stated in our opinion, including any search of the
dockets or records of any court or governmental office, agency,
or authority to determine if any such proceedings are pending or
orders have been entered involving BT Financial.
We are opining herein only as to the effect on the
subject transactions of the laws of the Commonwealth of
Pennsylvania (excluding conflicts of laws rules) and the federal
laws of the United States of America, but only to the extent
referred to specifically herein, all as in effect on the date
hereof. Accordingly, we are not opining on, and we assume no
responsibility as to, the applicability to or effect on any of
the matters covered herein of any other laws of any jurisdiction.
We express no opinion concerning the applicability to
BT Financial, or to the Agreement or any other documents,
exhibits or schedules delivered in connection with the
Acquisition (collectively, the "Documents"), of federal, state or
local laws, rules, regulations or ordinances relating to: (a)
occupational health and safety, environmental sitting, impact and
discharge, or storage and discharge of flammable or hazardous
materials or solid or toxic waste; (b) any federal or state tax
consequences arising in connection with the transactions
contemplated in the Documents; (c) patent, copyright, service
xxxx, trade name or trademark rights; or (d) the accuracy,
adequacy or legal sufficiency of any personal property
descriptions contained in the Documents.
On the basis of and subject to the foregoing, we are
pleased to advise you that in our opinion:
1. BT Financial is a corporation duly organized,
validly subsisting and in good standing under the laws of the
Commonwealth of Pennsylvania and has full corporate power to own
its properties and to carry on its business as it is now being
conducted as a bank holding company and to enter into, and carry
out its obligations, under the Agreement.
2. The execution, delivery and performance by BT
Financial of the Agreement and the transactions contemplated
therein have been duly authorized by the Board of Directors of BT
Financial, this being the only corporate authorization thereof
required under the Articles of Incorporation or Bylaws of BT
Financial and under applicable law. The Agreement constitutes
the legal, valid and binding obligation of BT Financial,
enforceable in accordance with its terms except as enforceability
of the Agreement may be limited by (a) bankruptcy, insolvency,
bank conservatorship, fraudulent conveyance, moratorium,
reorganization, conservatorship, receivership or other similar
laws from time to time in effect affecting the enforcement of
creditors' rights generally or the rights of creditors of insured
depository institutions, (b) general equitable principles, (c)
laws relating to the safety and soundness of insured depository
institutions, (d) the possible unavailability of certain remedies
in the event of non-material breaches of such agreements, (e) the
effect or availability of equitable remedies or injunctive relief
(regardless of whether such enforceability is considered in a
proceeding in equity or at law), (f) any limitation insofar as
indemnification and contribution provisions thereof may be
limited by applicable laws, (g) general principles of public
policy and (h) the effect of judicial discretion on the
availability of remedies and realization of benefits and the
enforceability of the Agreement in all respects as written.
3. The execution, delivery, and performance by BT
Financial of the Agreement and the transactions contemplated
therein will not violate BT Financial's Articles of Incorporation
or Bylaws, and, to our knowledge, will not violate, result in a
breach of, or constitute a default under, any material lease,
mortgage, contract, agreement, instrument, judgment, order or
decree to which BT Financial is a party or to which it or any of
its properties or assets may be bound.
4. Other than as contemplated by the Agreement, no
consent, approval, authorization or order of any court or
governmental agency or body which has not been obtained is
required on behalf of BT Financial for consummation of the
transactions contemplated by the Agreement.
5. To our knowledge, there are no actions, suits or
proceedings, pending or threatened, against or affecting BT
Financial or its officers or directors, at law or in equity,
before or by any governmental department, commission, board,
bureau, agency or instrumentality, or before any arbitrator of
any kind, which seek to enjoin consummation of the transactions
contemplated by the Agreement or to obtain other relief in
connection with the Agreement or the transactions contemplated
thereby.
This opinion is furnished to you specifically in
connection with the Agreement, and solely for your information
and benefit. It may not be relied upon by you in any other
connection, and it may not be relied upon by any other person for
any purpose. It may not be assigned, quoted, used or delivered
to any other person without our prior written consent. This
opinion is rendered as of the date hereof, and we have not
undertaken to supplement this opinion with respect to factual
matters or changes in law that may occur hereafter. It is
limited to the matters set forth herein, and no opinion may be
inferred or implied beyond the matters expressly stated herein.
Yours truly,
XXXXXXXXXXX & XXXXXXXX LLP
EXHIBIT B
Proposed Form of Opinion Letter
of
Porter, Wright, Xxxxxx & Xxxxxx
-------------------------------
__________, 1995
BT Financial Corporation
000 Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000
Re: Acquisition of The Huntington National Bank of
Pennsylvania
Ladies and Gentlemen:
We have served as counsel to Huntington Bancshares West
Virginia, Inc., an Ohio corporation ("Huntington"), and The
Huntington National Bank of Pennsylvania, a national banking
association ("HNBP"), in connection with the purchase (the
"Acquisition") by BT Financial Corporation, a Pennsylvania
corporation ("BT Financial"), of all of the outstanding shares of
the capital stock of HNBP, pursuant to the terms of that certain
Stock Purchase Agreement, dated as of September 1, 1995, between
Huntington, HNBP, and BT Financial (the "Agreement"). All
capitalized terms used in this letter and not specifically
defined herein shall have the meanings ascribed to them in the
Agreement. This opinion is delivered to you pursuant to Section
8.2 of the Agreement.
As counsel for Huntington and HNBP, we have reviewed the
Agreement and have examined and relied upon such other documents
and instruments, and certificates of public officials, and have
made such other investigations and inquiries as we have deemed
necessary or appropriate for purposes of this opinion.
In stating our opinion, we have relied solely upon
certificates of officers of Huntington and HNBP with respect to
certain factual matters as we have deemed necessary. For
purposes of this opinion, we have assumed, without investigation:
(a) the legal capacity of each natural person; (b) the full power
and authority of each person, other than Huntington and HNBP and
their officers, to execute, deliver, and perform each document
heretofore executed and delivered or hereafter to be executed and
delivered, and to do each other act heretofore done or hereafter
to be done by such person; (c) the due authorization, execution,
and delivery by each person, other than Huntington and HNBP and
their officers, of each document heretofore executed and
delivered or hereafter to be executed and delivered by such
person; (d) the legality, validity, binding effect, and
enforceability as to each person, other than Huntington and HNBP
BT Financial Corporation
___________, 1995
and their officers, of each document heretofore executed and
delivered or hereafter to be executed and delivered by such
person; (e) the genuineness of each signature (other than
signatures of the officers of Huntington and HNBP) on, and the
completeness of, each document submitted to us as an original;
(f) the conformity to, and the authenticity of, the original of
each document submitted to us as a copy; (g) no modification of
any provision of any document or waiver of any right or remedy;
and (h) no exercise of any right or remedy other than in a
commercially reasonable and conscionable manner and in good
faith.
To the extent that any opinion expressed herein is limited
or qualified by reference to our knowledge, our knowledge is
based solely upon (i) the current actual knowledge of those
lawyers in this Firm engaged in the representation of Huntington
and HNBP with respect to the transactions to which this opinion
relates, (ii) statements or assurances as to matters of fact
contained in the certificates or comparable documents of officers
of Huntington and HNBP, and (iii) the representations and
warranties contained in the Agreement. Although we have made no
independent investigation or verification of any matter set forth
in the documents referred to in (ii) and (iii) above, nothing has
come to our attention indicating that such reliance by us or by
you is not justified. We further advise you that, with respect
to numbered paragraphs 5 and 6 below: (a) we have not been
engaged to give substantive attention to any legal or
governmental proceedings or orders to which HNBP may be a party;
and (b) we have made no special investigation as to the factual
matters stated in our opinion, including any search of the
dockets or records of any court or governmental office, agency,
or authority to determine if any such proceedings are pending or
orders have been entered involving Huntington or HNBP.
The opinions hereinafter expressed are qualified to the
extent that the remedies under the Documents (as defined below)
may be subject to or affected by: (a) bankruptcy, insolvency,
bank conservatorship, or receivership or similar laws affecting
creditors' rights and remedies generally, and the enforcement
thereof; (b) the unavailability of, or any limitation on the
availability of, any particular remedy (whether in a proceeding
in equity or at law) because of general principles of equity; and
(c) any limitation insofar as indemnification and contribution
provisions thereof may be limited by applicable law.
We express no opinion concerning the applicability to
Huntington or HNBP, or to the Agreement or any other documents,
exhibits, or schedules delivered in connection with the
Acquisition (collectively, the "Documents"), of federal, state,
or local laws, rules, regulations, or ordinances relating to:
BT Financial Corporation
___________, 1995
(a) occupational health and safety, environmental siting, impact,
and discharge, or storage and discharge of flammable or hazardous
materials or solid or toxic waste; (b) any federal or state tax
consequences arising in connection with the transactions
contemplated in the Documents; (c) patent, copyright, service
xxxx, trade name, or trademark rights; or (d) the accuracy,
adequacy, or legal sufficiency of any personal property
descriptions contained in the Documents.
On the basis of and subject to the foregoing and the
qualifications stated below, we are of the opinion that:
1. Huntington is a corporation duly organized, validly
existing, and in good standing under the laws of the State of
Ohio and has full corporate power to own its properties and to
carry on its business as it is now being conducted as a bank
holding company and to enter into, and carry out its obligations
under, the Agreement.
2. HNBP is a national banking association, duly organized
and validly existing under the laws of the United States of
America and is duly authorized and has full corporate power to
own its properties and carry on its business as it is presently
being conducted and to enter into, and carry out its obligations
under, the Agreement. HNBP has authorized capital stock of
1,000,000 shares of common stock, $5.00 par value per share, all
of which shares are issued and outstanding and owned of record by
Huntington. All such issued shares have been duly and validly
authorized and issued and are fully paid and nonassessable and
have not been issued in violation of any pre-emptive rights of
any of HNBP's stockholders. Except for the Agreement, we are not
aware of any: (a) outstanding options, warrants, commitments,
agreements, calls, claims, or rights binding upon HNBP relating
to the issuance, purchase, or acquisition of any authorized but
unissued or any outstanding shares of the capital stock of HNBP;
(b) commitments or agreements binding upon HNBP relating to the
authorization or issuance of any class of equity securities of
HNBP other than its shares of common stock presently authorized,
issued, and outstanding; or (c) outstanding securities of HNBP
which entitle the holder thereof to convert or exchange such
securities into or for shares of capital stock of HNBP.
3. The execution, delivery, and performance by Huntington
and HNBP of the Agreement and the transactions contemplated
therein have been duly authorized by their respective boards of
directors, this being the only corporate authorization thereof
required under the articles of incorporation or code of
regulations of Huntington, the articles of association or bylaws
of HNBP, or applicable law. The Agreement constitutes the legal,
BT Financial Corporation
___________, 1995
valid, and binding obligation of Huntington, enforceable in
accordance with its terms.
4. The execution, delivery, and performance by Huntington
and HNBP of the Agreement and the transactions contemplated
therein do not violate Huntington's articles of incorporation or
code of regulations or HNBP's articles of association or bylaws,
respectively, and, to our knowledge, will not violate, result in
a breach of, or constitute a default under, any material lease,
mortgage, contract, agreement, instrument, judgment, order, or
decree to which Huntington or HNBP is a party or to which either
of them or any of their properties or assets may be bound.
5. Other than as contemplated by the Agreement, no
consent, approval, authorization, or order of any court or
governmental agency or body which has not been obtained is
required on behalf of Huntington or HNBP for consummation of the
transactions contemplated by the Agreement.
6. To our knowledge, there are no actions, suits, or
proceedings, pending or threatened against or affecting
Huntington or HNBP or their respective officers or directors, at
law or in equity, before or by any governmental department,
commission, board, bureau, agency, or instrumentality, or before
any arbitrator of any kind, which, in our opinion, based upon
such knowledge, are likely to result in a material adverse change
in the business, operations, properties, or assets or in the
condition, financial or otherwise, of HNBP, or which seek to
enjoin consummation of the transactions contemplated by the
Agreement or to obtain other relief in connection with the
Agreement or the transactions contemplated thereby.
With respect to the opinions expressed above, we do not
purport to be experts in and do not express any opinion herein
concerning any law other than the laws of the State of Ohio and
the laws of the United States of America. With your consent and
approval, for purposes of our opinion in paragraph 3 above, we
have assumed for purposes of this opinion that the laws of the
Commonwealth of Pennsylvania are the same in all relevant
respects as the laws of the State of Ohio.
This opinion is being furnished to you solely for your
benefit. It may not be relied upon by, nor a copy of it
delivered to, any other party without our prior written consent.
Very truly yours,
PORTER, WRIGHT, XXXXXX & XXXXXX
