MERGER AGREEMENT
BY AND BETWEEN
THE WOODSTOWN NATIONAL BANK & TRUST COMPANY
AND
XXXXXX FINANCIAL CORPORATION
TABLE OF CONTENTS
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Page
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ARTICLE I PLAN OF MERGER................................................. 1
Section 1.1 Plan of Merger............................................. 1
ARTICLE II CONVERSION OF SHARES AND
EXCHANGE OF STOCK CERTIFICATES................................. 2
Section 2.1 Conversion of Shares....................................... 2
(a) General.................................................... 2
(b) Antidilution Provision..................................... 2
(c) No Fractional Shares....................................... 2
(d) Closing Market Price....................................... 2
Section 2.2 Exchange of Stock Certificates............................. 3
(a) Exchange Agent............................................. 3
(b) Surrender of Certificates.................................. 3
(c) Dividend Withholding....................................... 3
(d) Failure to Surrender Certificates.......................... 4
(e) Expenses................................................... 4
Section 2.3 Reservations of Shares..................................... 4
Section 2.4 Taking Necessary Actions................................... 4
Section 2.5 Press Releases............................................. 4
ARTICLE III REPRESENTATIONS AND WARRANTIES OF WNB.......................... 5
Section 3.1 Authority.................................................. 5
Section 3.2 Subsidiaries............................................... 5
Section 3.3 Organization and Standing.................................. 5
Section 3.4 Capitalization............................................. 5
Section 3.5 Charter, Bylaws and Minute Books........................... 6
Section 3.6 Financial Statements....................................... 6
Section 3.7 Absence of Undisclosed Liabilities......................... 6
Section 3.8 Absence of Changes......................................... 7
Section 3.9 Dividends, Distributions and Stock Purchases............... 7
Section 3.10 Taxes...................................................... 7
Section 3.11 Title to and Condition of Assets........................... 7
Section 3.12 Contracts.................................................. 8
Section 3.13 Litigation and Governmental Directives..................... 8
Section 3.14 Compliance with Laws; Governmental Authorizations.......... 9
Section 3.15 Insurance.................................................. 9
Section 3.16 Financial Institutions Bonds............................... 9
Section 3.17 Labor Relations and Employment Agreements.................. 10
Section 3.18 Employee Benefit Plans..................................... 10
Section 3.19 Related Party Transactions................................. 11
Section 3.20 No Finder.................................................. 11
Section 3.21 Complete and Accurate Disclosure........................... 11
Section 3.22 Environmental Matters...................................... 11
Section 3.23 Proxy Statement/Prospectus................................. 12
Section 3.24 SEC Filings................................................ 12
Section 3.25 Reports.................................................... 13
Section 3.26 Loan Portfolio of the WNB.................................. 13
Section 3.27 Investment Portfolio....................................... 13
Section 3.28 Regulatory Examinations.................................... 14
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF FFC.......................... 14
Section 4.1 Authority.................................................. 14
Section 4.2 Organization and Standing.................................. 14
Section 4.3 Capitalization............................................. 15
Section 4.4 Articles of Incorporation and Bylaws....................... 15
Section 4.5 Subsidiaries............................................... 15
Section 4.6 Financial Statements....................................... 15
Section 4.7 Absence of Undisclosed Liabilities......................... 16
Section 4.8 Absence of Changes......................................... 16
Section 4.9 Litigation and Governmental Directives..................... 16
Section 4.10 Compliance with Laws; Governmental Authorizations.......... 17
Section 4.11 Complete and Accurate Disclosure........................... 17
Section 4.12 Labor Relations............................................ 17
Section 4.13 Employee Benefits Plans.................................... 18
Section 4.14 Environmental Matters...................................... 18
Section 4.15 SEC Filings................................................ 18
Section 4.16 Proxy Statement/Prospectus................................. 18
Section 4.17 Accounting Treatment....................................... 19
ARTICLE V COVENANTS OF WNB............................................... 19
Section 5.1 Conduct of Business........................................ 19
Section 5.2 Best Efforts............................................... 21
Section 5.3 Access to Properties and Records........................... 21
Section 5.4 Subsequent Financial Statements............................ 21
Section 5.5 Update Schedules........................................... 21
Section 5.6 Notice..................................................... 21
Section 5.7 Other Proposals............................................ 22
Section 5.8 Affiliate Letters.......................................... 22
Section 5.9 No Purchases or Sales of FFC Common Stock
During Price Determination Period.......................... 22
Section 5.10 Accounting Treatment....................................... 22
Section 5.11 Dividends.................................................. 23
Section 5.12 Employment Obligations..................................... 23
ARTICLE VI COVENANTS OF FFC............................................... 23
Section 6.1 Best Efforts............................................... 23
(a) Applications for Regulatory Approval....................... 23
(b) Registration Statement..................................... 24
(c) State Securities Laws...................................... 24
(d) Stock Listing.............................................. 24
(e) WNB Interim Bank........................................... 24
(f) Accounting Treatment....................................... 24
Section 6.2 Access to Properties and Records........................... 24
Section 6.3 Subsequent Financial Statements............................ 25
Section 6.4 Update Schedule............................................ 25
Section 6.5 Notice..................................................... 25
Section 6.6 Employment Arrangements.................................... 25
Section 6.7 No Purchase or Sales of FFC Common Stock
During Price Determination Period.......................... 25
Section 6.8 Appointment of FFC Director................................ 26
Section 6.9 Continuation of WNB's Structure, Name and Directors........ 26
ARTICLE VII CONDITIONS PRECEDENT........................................... 27
Section 7.1 Common Conditions.......................................... 27
(a) Stockholder Approval....................................... 27
(b) Regulatory Approvals....................................... 27
(c) Stock Listing.............................................. 27
(d) Tax Opinion................................................ 27
(e) Registration Statement..................................... 28
(f) No Suits................................................... 29
Section 7.2 Conditions Precedent to Obligations of FFC................. 29
(a) Accuracy of Representations and Warranties................. 29
(b) Covenants Performed........................................ 29
(c) Opinion of Counsel for WNB................................. 29
(d) Affiliate Agreements....................................... 29
(e) Financial Confirmation..................................... 30
(f) Accountants' Letter........................................ 30
(g) Accounting Treatment....................................... 31
(h) Federal and State Securities and Antitrust Laws............ 31
(i) Dissenting Shareholders.................................... 31
(j) Environmental Matters...................................... 31
(k) Closing Documents.......................................... 32
Section 7.3 Conditions Precedent to the Obligations of WNB............. 32
(a) Accuracy of Representations and Warranties................. 32
(b) Covenants Performed........................................ 32
(c) Opinion of Counsel for FFC................................. 32
(d) Fairness Opinion........................................... 32
(e) Financial Confirmation..................................... 33
(f) Closing Documents.......................................... 33
ARTICLE VIII TERMINATION, AMENDMENT AND WAIVER.......................... 33
Section 8.1 Termination................................................ 33
(a) Mutual Consent............................................. 33
(b) Unilateral Action by FFC................................... 33
(c) Unilateral Action By WNB................................... 34
Section 8.2 Effect of Termination...................................... 34
(a) Effect..................................................... 34
(b) Limited Liability.......................................... 34
(c) Confidentiality............................................ 34
Section 8.3 Amendment.................................................. 35
Section 8.4 Waiver..................................................... 35
ARTICLE IX RIGHTS OF DISSENTING SHAREHOLDERS OF WNB......................... 35
Section 9.1 Rights of Dissenting Shareholders of WNB................... 35
ARTICLE X CLOSING AND EFFECTIVE DATE....................................... 35
Section 10.1 Closing.................................................... 36
Section 10.2 Effective Date............................................. 36
ARTICLE XI NO SURVIVAL OF REPRESENTATIONS AND WARRANTIES.................... 36
Section 11.1 No Survival................................................ 36
ARTICLE XII GENERAL PROVISIONS......................................... 36
Section 12.1 Expenses................................................... 36
Section 12.2 Other Mergers and Acquisitions............................. 36
Section 12.3 Notices.................................................... 36
Section 12.4 Counterparts............................................... 37
Section 12.5 Governing Law.............................................. 37
Section 12.6 Parties in Interest........................................ 38
Section 12.7 Entire Agreement........................................... 38
MERGER AGREEMENT
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Merger Agreement made as of the 30th day of September, 1996, by and
between XXXXXX FINANCIAL CORPORATION, a Pennsylvania business corporation having
its administrative headquarters at One Penn Square, P. O. Xxx 0000, Xxxxxxxxx,
Xxxxxxxxxxxx 00000 ("FFC"), and THE WOODSTOWN NATIONAL BANK & TRUST COMPANY, a
national banking association having its administrative headquarters at Xxx Xxxxx
Xxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx, 00000 ("WNB").
BACKGROUND:
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FFC is a Pennsylvania bank holding company. WNB is a national banking
association. FFC wishes to acquire WNB, and WNB wishes to be acquired by FFC.
Subject to the terms and conditions of this Agreement, the foregoing transaction
will be accomplished by means of a merger (the "Merger") in which (i) FFC will
organize a national banking association "(WNB Interim Bank") as a wholly-owned
subsidiary of FFC and cause WNB Interim Bank to become a party to this
Agreement, (ii) WNB Interim Bank will be merged with and into WNB, (iii) WNB
will survive the Merger, and (iv) all of the outstanding shares of the common
stock of WNB, par value $.22 per share ("WNB Common Stock"), will be converted
into shares of the common stock of FFC, par value $2.50 per share ("FFC Common
Stock"). WNB will become a wholly-owned subsidiary of FFC as a result of the
Merger. Simultaneously with the execution of this Agreement, the parties are
entering into a Warrant Agreement of even date herewith in the form of Exhibit A
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attached hereto (the "Warrant Agreement"), which provides for the delivery by
WNB of a warrant in the form of Exhibit B attached hereto (the "Warrant")
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entitling FFC to purchase shares of the WNB Common Stock in certain
circumstances.
WITNESSETH:
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NOW, THEREFORE, in consideration of the mutual covenants contained
herein and intending to be legally bound, the parties hereby agree as follows:
ARTICLE I
PLAN OF MERGER
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Section 1.1 Plan of Merger. Subject to the terms and conditions of
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this Agreement, WNB Interim Bank shall merge with and into WNB in accordance
with the Plan of Merger in the form of Exhibit C attached hereto.
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ARTICLE II
CONVERSION OF SHARES AND
EXCHANGE OF STOCK CERTIFICATES
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Section 2.1 Conversion of Shares. On the Effective Date (as defined
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in Section 10.2 herein) the shares of WNB Common Stock then outstanding shall be
converted into shares of FFC Common Stock, as follows:
(a) General: Subject to the provisions of Sections 2.1(b) and
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2.1(c) herein, each share of WNB Common Stock issued and outstanding immediately
before the Effective Date shall, on the Effective Date, be converted into and
become, without any action on the part of the holder thereof, 1.60 (such number,
as it may be adjusted under Section 2.1(b) herein, the "Conversion Ratio")
shares of FFC Common Stock.
(b) Antidilution Provision: In the event that FFC shall at any
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time before the Effective Date: (i) issue a dividend in shares of FFC Common
Stock, (ii) combine the outstanding shares of FFC Common Stock into a smaller
number of shares, or (iii) subdivide the outstanding shares of FFC Common Stock
into a greater number of shares, then the Conversion Ratio shall be
proportionately adjusted (calculated to three decimal places), so that each WNB
stockholder shall receive on the Effective Date, in exchange for his shares of
WNB Common Stock, the number of shares of FFC Common Stock as would then have
been owned by him if the Effective Date had occurred before the record date of
such event (for example, if FFC were to declare a ten percent (10%) stock
dividend after the date of this Agreement and if the record date for that stock
dividend were to occur before the Effective Date, the Conversion Ratio would be
adjusted from 1.60 shares to 1.76 shares).
(c) No Fractional Shares: No fractional shares of FFC Common
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Stock shall be issued in connection with the Merger. In lieu of the issuance of
any fractional share to which he would otherwise be entitled, each former
stockholder of WNB shall receive in cash an amount equal to the fair market
value of his fractional interest, which fair market value shall be determined by
multiplying such fraction by the Closing Market Price (as defined in Section
2.1(d) herein).
(d) Closing Market Price: For purposes of this Agreement, the
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Closing Market Price shall be the average of the average of the per share
closing bid prices for FFC Common Stock, rounded up to the nearest $.125, for
the ten (10) trading days immediately preceding the date which is two (2)
business days before the Effective Date, as reported on the National Market
System of the National Association of Securities Dealers Automated Quotation
System (NASDAQ), the foregoing period of ten (10) trading days being hereinafter
sometimes referred to as the "Price Determination Period." (For example, if
March 31, 1997 were to be the Effective Date, then the Price Determination
Period would be March 17, 18, 19, 20, 21, 24, 25,
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26, 27 and 28, 1997.) In the event that NASDAQ shall fail to report a closing
bid price for FFC Common Stock for any trading day during the Price
Determination Period, the closing bid prices for that day shall be equal to the
average of the closing bid prices and the average of the closing asked prices as
quoted: (i) by X. X. Xxxxxxxxx & Company, Inc. and by Xxxx, Xxxx & Co.; or, (ii)
in the event that both of these firms are not then making a market in FFC Common
Stock, by two brokerage firms then making a market in FFC Common Stock to be
selected by FFC and approved by WNB.
Section 2.2 Exchange of Stock Certificates. WNB Common Stock
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certificates shall be exchanged for FFC Common Stock certificates in accordance
with the following procedures:
(a) Exchange Agent: The transfer agent of FFC shall act as
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exchange agent (the "Exchange Agent") to receive WNB Common Stock certificates
from the holders thereof and to exchange such stock certificates for FFC Common
Stock certificates and (if applicable) to pay cash for fractional shares of WNB
Common Stock pursuant to Section 2.1(c) herein. The Exchange Agent shall, within
five business days after the Effective Date, mail to each former stockholder of
WNB a notice specifying the procedures to be followed in surrendering such
stockholder's WNB Common Stock certificates.
(b) Surrender of Certificates: As promptly as possible after
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receipt of the Exchange Agent's notice, each former stockholder of WNB shall
surrender his WNB Common Stock certificates to the Exchange Agent; provided,
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that if any former stockholder of WNB shall be unable to surrender his WNB
Common Stock certificates due to loss or mutilation thereof, he may make a
constructive surrender by following procedures comparable to those customarily
used by FFC for issuing replacement certificates to FFC shareholders whose FFC
Common Stock certificates have been lost or mutilated. Within 10 business days
following the receipt of a proper actual or constructive surrender of WNB Common
Stock certificates from a former WNB stockholder, the Exchange Agent shall issue
to such stockholder, in exchange therefor, an FFC Common Stock certificate
representing the whole number of shares of FFC Common Stock into which such
stockholder's shares of WNB Common Stock have been converted in accordance with
this Article II, together with a check in the amount of any cash to which such
stockholder is entitled, pursuant to Section 2.1(c) herein, in lieu of the
issuance of a fractional share.
(c) Dividend Withholding: Dividends, if any, payable by FFC
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after the Effective Date to any former stockholder of WNB who has not prior to
the payment date surrendered his WNB Common Stock certificates may, at the
option of FFC, be withheld. Any dividends so withheld shall be paid, without
interest, to such former stockholder of WNB upon proper surrender of his WNB
Common Stock certificates.
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(d) Failure to Surrender Certificates: All WNB Common Stock
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certificates must be surrendered to the Exchange Agent within two (2) years
after the Effective Date. In the event that any former stockholder of WNB shall
not have properly surrendered his WNB Common Stock certificates within two (2)
years after the Effective Date, the shares of FFC Common Stock that would
otherwise have been issued to him may, at the option of FFC, be sold and the net
proceeds of such sale, together with the cash (if any) to which he is entitled
in lieu of the issuance of a fractional share and any previously accrued
dividends, shall be held by the Exchange Agent in a noninterest bearing account
for his benefit. From and after any such sale, the sole right of such former
stockholder of WNB shall be the right to collect such net proceeds, cash and
accumulated dividends. Subject to all applicable laws of escheat, such net
proceeds, cash and accumulated dividends shall be paid to such former
stockholder of WNB, without interest, upon proper surrender of his WNB Common
Stock certificates.
(e) Expenses: All costs and expenses associated with the
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foregoing surrender and exchange procedure shall be borne by FFC.
Section 2.3 Reservation of Shares. FFC agrees that (i) prior to the
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Effective Date it will take appropriate action to reserve a sufficient number of
authorized but unissued shares of FFC Common Stock to be issued in accordance
with this Agreement, and (ii) on the Effective Date, FFC will issue shares of
FFC Common Stock to the extent set forth in, and in accordance with, this
Agreement.
Section 2.4 Taking Necessary Action. FFC and WNB shall take all such
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actions as may be reasonably necessary or appropriate in order to effectuate the
transactions contemplated hereby including, without limitation, providing
information necessary for preparation of any filings needed to obtain the
regulatory approvals required to consummate the Merger. In case at any time
after the Effective Date any further action is necessary or desirable to carry
out the purposes of this Agreement and to vest FFC with full title to all
properties, assets, rights, approvals, immunities and franchises of WNB, the
officers and directors of WNB, at the expense of FFC, shall take all such
necessary action.
Section 2.5 Press Releases. FFC and WNB agree that all press releases
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or other public communications relating to this Agreement or the transactions
contemplated hereby will require consultation among FFC and WNB, unless counsel
has advised any such party that such release or other public communication must
immediately be issued and the issuing party has not been able, despite its good
faith efforts, to effect such consultation.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF WNB
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WNB represents and warrants to FFC, as of the date of this Agreement
and as of the date of the Closing (as defined in Section 10.1 herein), as
follows:
Section 3.1 Authority. The execution and delivery of this Agreement,
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the Warrant Agreement and the Warrant and the performance of the transactions
contemplated herein and therein have been authorized by the Board of Directors
of WNB and, except for the approval of this Agreement by its stockholders, WNB
has taken all corporate action necessary on its part to authorize this
Agreement, the Warrant Agreement and the Warrant and the performance of the
transactions contemplated herein and therein. This Agreement, the Warrant
Agreement and the Warrant have been duly executed and delivered by WNB and,
assuming due authorization, execution and delivery by FFC, constitute valid and
binding obligations of WNB. The execution, delivery and performance of this
Agreement, the Warrant Agreement and the Warrant will not constitute a violation
or breach of or default under (i) the Articles of Association or Bylaws of WNB,
(ii) the Certificate of Incorporation or Bylaws of Woodstown Investment Company
("WIC"), (iii) any statute, rule, regulation, order, decree or directive of any
governmental authority or court applicable to WNB or WIC, or (iv) any agreement,
contract, memorandum of understanding, indenture or other instrument to which
WNB or WIC is a party or by which WNB, or WIC or any of their properties are
bound.
Section 3.2 Subsidiaries. WIC is a direct wholly-owned subsidiary of
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WNB. Except for WIC, WNB owns no subsidiaries, directly or indirectly.
Section 3.3 Organization and Standing. WNB is a bank that is duly
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organized, validly existing and in good standing under the laws of the United
States. WNB is an insured bank under the provisions of the Federal Deposit
Insurance Act, as amended (the "FDI Act"), and is a member of the Federal
Reserve System. WNB has full power and lawful authority to own and hold its
properties and to carry on its business as presently conducted. WIC is a
business corporation that is duly organized, validly existing and in good
standing of the laws of the State of Delaware. WIC has full power and lawful
authority to own and hold its properties and to carry on its business as
presently conducted.
Section 3.4 Capitalization. The authorized capital of WNB consists
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exclusively of 10,000,000 shares of WNB Common Stock, of which 1,800,000 shares
are validly issued, outstanding, fully paid and non-assessable, and no shares
are held as treasury shares. In addition, 358,200 shares of (or approximately
19.9% of the outstanding), WNB Common Stock are reserved for issuance upon
exercise of the Warrant. Except
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for the Warrant, there are no outstanding obligations, options or rights of any
kind entitling other persons to acquire shares of WNB Common Stock and there are
no outstanding securities or other instruments of any kind that are convertible
into shares of WNB Common Stock. WIC consists exclusively of 1,000 shares of
common stock, par value $1.00 per share (the "WIC Common Stock"), of which 1,000
shares are validly issued, outstanding, fully paid and non-assessable, and no
shares are held as treasury shares. All outstanding shares of WIC Common Stock
are owned beneficially and of record by WNB. There are no outstanding
obligations, options or rights of any kind entitling other persons to acquire
shares of WIC Common Stock, and there are no outstanding securities or
instruments of any kind that are convertible into shares of WIC Common Stock.
Section 3.5 Charter, Bylaws and Minute Books. The copies of the Articles of
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Association, Certificate of Incorporation and Bylaws of WNB and WIC that have
been delivered to FFC are true, correct and complete. Except as previously
disclosed to FFC in writing, the minute books of WNB and WIC that have been made
available to FFC for inspection are true, correct and complete in all respects
and accurately record the actions taken by the Boards of Directors and
stockholders of WNB and WIC at the meetings documented in such minutes.
Section 3.6 Financial Statements. WNB and WIC have delivered to FFC
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the following financial statements: (i) Consolidated Statements of Condition for
WNB at December 31, 1995 and 1994 and Consolidated Statements of Income,
Consolidated Statements of Changes in Shareholders' Equity, and Consolidated
Statements of Cash Flows of WNB for the years ended December 31, 1995 and 1994
certified by Xxxxxxx & Associates, and set forth in the 1995 Annual Report to
WNB's stockholders; and (ii) a Consolidated Statement of Condition of WNB at
June 30, 1996 and Consolidated Statements of Income, Consolidated Statements of
Changes in Shareholders' Equity and Consolidated Statements of Cash Flows of WNB
for the six-month period ended June 30, 1996, (the aforementioned Consolidated
Statement of Condition as of June 30, 1996 being hereinafter referred to as the
"WNB Balance Sheet"). Each of the foregoing financial statements fairly present
the consolidated financial condition, assets and liabilities, and results of
operations of WNB and WIC at their respective dates and for the respective
periods then ended and has been prepared in accordance with generally accepted
accounting principles consistently applied, except as otherwise noted in a
footnote thereto and subject, in the case of the interim financial statements
contained in WNB's above-mentioned Quarterly Report, to normal recurring year-
end adjustments, which are not material in any case or in the aggregate.
Section 3.7 Absence of Undisclosed Liabilities. Except as disclosed
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in Schedule 3.7, or as reflected, noted or adequately reserved against in the
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WNB Balance Sheet, as at June 30, 1996, WNB had no consolidated liabilities
(whether accrued, absolute, contingent or otherwise) which were required to be
reflected, noted or reserved
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against in the WNB Balance Sheet under generally accepted accounting principles
or which were in any case or in the aggregate material. Except as disclosed in
Schedule 3.7, WNB and WIC have not incurred, since June 30, 1996, any such
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liability, other than liabilities of the same nature as those set forth in the
WNB Balance Sheet, all of which have been reasonably incurred in the Ordinary
Course of Business. For purposes of this Agreement, the term "Ordinary Course
of Business" shall mean the ordinary course of business consistent with WNB's
and WIC's customary business practices.
Section 3.8 Absence of Changes. Since June 30, 1996, WNB and WIC have
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conducted their businesses in the Ordinary Course of Business and, except as
disclosed in Schedule 3.8, neither WNB nor WIC have undergone any changes in its
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condition (financial or otherwise), assets, liabilities, business or operations,
other than changes in the Ordinary Course of Business, which have not been, in
the aggregate, materially adverse as to WNB and WIC.
Section 3.9 Dividends, Distributions and Stock Purchases. Except as
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disclosed in Schedule 3.9, since January 1, 1996, WNB has not declared, set
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aside, made or paid any dividend or other distribution in respect of the WNB
Common Stock, or purchased, issued or sold any shares of WNB Common Stock or WIC
Common Stock.
Section 3.10 Taxes. WNB and WIC have filed all federal, state,
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county, municipal and foreign tax returns, reports and declarations which are
required to be filed by them or either of them as of June 30, 1996. Except as
disclosed in Schedule 3.10: (i) WNB has paid all taxes, penalties and interest
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which have become due pursuant thereto or which became due pursuant to federal,
state, county, municipal or foreign tax laws applicable to the periods covered
by the foregoing tax returns, (ii) neither WNB nor WIC have received any notice
of deficiency or assessment of additional taxes, and no tax audits are in
process; and (iii) the Internal Revenue Service (the "IRS") has not commenced or
given notice of an intention to commence any examination or audit of the federal
income tax returns of WNB for any year through and including the year ended
December 31, 1995. Except as disclosed in Schedule 3.10, neither WNB nor WIC
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have granted any waiver of any statute of limitations or otherwise agreed to any
extension of a period for the assessment of any federal, state, county,
municipal or foreign income tax. Except as disclosed in Schedule 3.10, the
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accruals and reserves reflected in the WNB Balance Sheet are adequate to cover
all taxes (including interest and penalties, if any, thereon) that are payable
or accrued as a result of WNB's consolidated operations for all periods prior to
the date of such Balance Sheet.
Section 3.11 Title to and Condition of Assets. Except as disclosed in
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Schedule 3.11; WNB and WIC have good and marketable title to all consolidated
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real and personal properties and assets reflected in the WNB Balance Sheet or
acquired
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subsequent to June 30, 1996 (other than property and assets disposed of
in the Ordinary Course of Business), free and clear of all liens or encumbrances
of any kind whatsoever; provided, however, that the representations and
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warranties contained in this sentence do not cover liens or encumbrances that:
(i) are reflected in the WNB Balance Sheet or in Schedule 3.11; (ii) represent
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liens of current taxes not yet due or which, if due, may be paid without
penalty, or which are being contested in good faith by appropriate proceedings;
and (iii) represent such imperfections of title, liens, encumbrances, zoning
requirements and easements, if any, as are not substantial in character, amount
or extent and do not materially detract from the value, or interfere with the
present or proposed use, of the properties and assets subject thereto. The
structures and other improvements to real estate, furniture, fixtures and
equipment reflected in the WNB Balance Sheet or acquired subsequent to June 30,
1996: (A) are in good operating condition and repair (ordinary wear and tear
excepted), and (B) comply in all material respects with all applicable laws,
ordinances and regulations, including without limitation all building codes,
zoning ordinances and other similar laws, except where any noncompliance would
not materially detract from the value, or interfere with the present or proposed
use, of such structures, improvements, furniture, fixtures and equipment. WNB
and WIC own or has the right to use all real and personal properties and assets
that are material to the conduct of their respective businesses as presently
conducted.
Section 3.12 Contracts. Each written or oral contract entered into by
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WNB or WIC (other than contracts with customers reasonably entered into by WNB
or WIC in the Ordinary Course of Business) which involves aggregate payments or
receipts in excess of $100,000 per year, including without limitation every
employment contract, employee benefit plan, agreement, lease, license,
indenture, mortgage and other commitment to which WNB or WIC is a party or by
which either WNB, WIC or any of their properties may be bound (collectively
referred to herein as "Material Contracts") is identified in Schedule 3.12.
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Except as disclosed in Schedule 3.12, all Material Contracts are valid and in
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full force and effect, and all parties thereto have in all material respects
performed all obligations required to be performed by them to date and are not
in default in any material respect. Schedule 3.12 identifies all Material
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Contracts which require the consent or approval of third parties to the
execution and delivery of this Agreement or to the consummation of the
transactions contemplated herein.
Section 3.13 Litigation and Governmental Directives. Except as
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disclosed in Schedule 3.13, (i) there is no litigation, investigation or
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proceeding pending, or to the knowledge of WNB threatened, that involves WNB,
WIC or any of their properties and that, if determined adversely, would
materially and adversely affect the condition (financial or otherwise), assets,
liabilities, business, operations or future prospects of WNB or WIC; (ii) there
are no outstanding orders, writs, injunctions, judgments, decrees, regulations,
directives, consent agreements or memoranda of understanding
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issued by any federal, state or local court or governmental authority or
arbitration tribunal issued against or with the consent of WNB or WIC that
materially and adversely affect the condition (financial or otherwise), assets,
liabilities, business, operations or future prospects of WNB, WIC or that in any
manner restrict the right of WNB or WIC to carry on their businesses as
presently conducted taken as a whole; and (iii) neither WNB nor WIC is aware of
any fact or condition presently existing that might give rise to any litigation,
investigation or proceeding which, if determined adversely to WNB or WIC , would
materially and adversely affect the consolidated condition (financial or
otherwise), assets, liabilities, business, operations or future prospects of WNB
or WIC or would restrict in any manner the right of WNB or WIC to carry on their
businesses as presently conducted taken as a whole. All litigation (except for
bankruptcy proceedings in which WNB or WIC have filed proofs of claim) in which
WNB or WIC is involved as a plaintiff (other than routine collection and
foreclosure suits initiated in the Ordinary Course of Business in which the
amount sought to be recovered is less than $25,000) is identified in Schedule
--------
3.13.
----
Section 3.14 Compliance with Laws; Governmental Authorizations.
------------ -------------------------------------------------
Except as disclosed in Schedule 3.14 or where noncompliance would not have a
-------------
material and adverse effect upon the condition (financial or otherwise), assets,
liabilities, business, operations or future prospects of WNB or WIC: (i) WNB and
WIC are in compliance with all statutes, laws, ordinances, rules, regulations,
judgments, orders, decrees, directives, consent agreements, memoranda of
understanding, permits, concessions, grants, franchises, licenses, and other
governmental authorizations or approvals applicable to WNB and WIC or to any of
their properties; and (ii) all permits, concessions, grants, franchises,
licenses and other governmental authorizations and approvals necessary for the
conduct of the business of WNB or WIC as presently conducted have been duly
obtained and are in full force and effect, and there are no proceedings pending
or threatened which may result in the revocation, cancellation, suspension or
materially adverse modification of any thereof.
Section 3.15 Insurance. All policies of insurance relating to WNB's
------------ ---------
and WIC's operations (except for title insurance policies), including without
limitation all financial institutions bonds, held by or on behalf of WNB or WIC
are listed in Schedule 3.15. All such policies of insurance are in full force
-------------
and effect, and no notices of cancellation have been received in connection
therewith.
Section 3.16 Financial Institutions Bonds. Since January, 1989, WNB
------------ ----------------------------
has continuously maintained in full force and effect one or more financial
institutions bonds listed in Schedule 3.16 insuring WNB against acts of
-------------
dishonesty by each of its employees. No claim has been made under any such bond
and WNB is not aware of any fact or condition presently existing which might
form the basis of a claim under any such bond. WNB has no reason to believe
that its present financial institutions
-9-
bond or bonds will not be renewed by its carrier on substantially the same terms
as those now in effect.
Section 3.17 Labor Relations and Employment Agreements. Neither WNB
------------ -----------------------------------------
nor WIC is a party to or bound by any collective bargaining agreement. WNB and
WIC enjoy good working relationships with their employees, and there are no
labor disputes pending, or to the knowledge of WNB or WIC threatened, that might
materially and adversely affect the condition (financial or otherwise), assets,
liabilities, business or operations of WNB or WIC. Except as disclosed in
Schedule 3.17, neither WNB nor WIC has employment contract, severance agreement,
-------------
deferred compensation agreement, consulting agreement or similar obligation (an
"Employment Obligation") with any director, officer, employee, agent or
consultant, and all such persons are serving at the will and pleasure of WNB or
WIC, as the case may be. Except as disclosed in Schedule 3.17, as of the
-------------
Effective Date (as defined in Section 10.2 herein), neither WNB nor WIC will
have any liability for employee termination rights arising out of any Employment
Obligation.
Section 3.18 Employee Benefit Plans. All employee benefit plans,
------------ ----------------------
contracts or arrangements to which WNB or WIC is a party or by which WNB or WIC
is bound, including without limitation all pension, retirement, deferred
compensation, incentive, bonus, profit sharing, stock purchase, stock option,
life insurance, death or survivor's benefit, health insurance, sickness,
disability, medical, surgical, hospital, severance, layoff or vacation plans,
contracts or arrangements, are identified in Schedule 3.18. WNB's retirement
-------------
savings plan, a contributory defined contribution plan (the "WNB 401(k) Plan")
is exempt from tax under Sections 401 and 501 of the Internal Revenue Code of
1986, as amended (the "Code"), has been maintained and operated in material
compliance with all applicable provisions of the Code and the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"). No "prohibited
transaction" (as such term is defined in the Code or in ERISA) has occurred in
respect of the WNB 401(k) Plan or any other employee benefit plan, including,
without limitation, WNB's nonqualified deferred compensation plan, nonqualified
salary continuation agreement and severance pay plan (all "employee benefit
pension plans" and all "employee welfare benefit plans", as those terms are
defined in ERISA, of WNB and WIC being collectively referred to herein as "WNB
Benefit Plans" and individually as a "WNB Benefit Plan"), to which WNB or WIC is
a party or by which WNB or WIC is bound. There have been no material breaches
of fiduciary duty by any fiduciary under or with respect to the WNB 401(k) Plan
or any other WNB Benefit Plan, and no claim is pending or threatened with
respect to any WNB Benefit Plan other than claims for benefits made in the
Ordinary Course of Business. Neither WNB nor WIC has incurred any material
liability for any tax imposed by Section 4975 of the Code or for any penalty
imposed by the Code or by ERISA with respect to the WNB 401(k) Plan or any other
WNB Benefit Plan. There has not been any audit of any WNB Benefit Plan by the
Department of Labor, the IRS or the PBGC since January 1, 1989.
-10-
Section 3.19 Related Party Transactions. Except as disclosed in
------------ --------------------------
Schedule 3.19, neither WNB nor WIC has any contract, extension of credit,
-------------
business arrangement or other relationship of any kind with any of the following
persons: (i) any executive officer or director (including any person who has
served in such capacity since January 1, 1994) of WNB or WIC; (ii) any
stockholder owning five percent (5%) or more of the outstanding WNB Common
Stock; and (iii) any "associate" (as defined in Rule 405 of the SEC) of the
foregoing persons or any business in which any of the foregoing persons is an
officer, director, employee or five percent (5%) or greater equity owner. Each
such contract or extension of credit disclosed in Schedule 3.19, except as
-------------
otherwise specifically described therein, has been made in the Ordinary Course
of Business on substantially the same terms, including interest rates and
collateral, as those prevailing at the time for comparable arms' length
transactions with other persons that do not involve more than a normal risk of
collectability or present other unfavorable features.
Section 3.20 No Finder. Except as disclosed in Schedule 3.20, neither
------------ --------- -------------
WNB nor WIC has paid or become obligated to pay any fee or commission of any
kind whatsoever to any broker, finder, advisor or other intermediary for, on
account of or in connection with the transactions contemplated in this
Agreement.
Section 3.21 Complete and Accurate Disclosure. Neither this Agreement
------------ --------------------------------
(insofar as it relates to WNB, WIC, WNB Common Stock, WIC Common Stock, and the
involvement of WNB in the transactions contemplated hereby) nor any financial
statement, schedule (including without limitation its Schedules to this
Agreement), certificate, or other statement or document delivered by WNB or WIC
to FFC in connection herewith contains any statement which, at the time and in
light of the circumstances under which it is made, is false or misleading with
respect to any material fact or omits to state any material fact necessary to
make the statements contained herein or therein not false or misleading. In
particular, without limiting the generality of the foregoing sentence, the
information provided and the representations made by WNB and WIC to FFC in
connection with the Registration Statement (as defined in Section 6.1(b)
herein), both at the time such information and representations are provided and
made and at the time of the Closing, will be true and accurate in all material
respects and will not contain any false or misleading statement with respect to
any material fact or omit to state any material fact required to be stated
therein or necessary in order (i) to make the statements made therein not false
or misleading, or (ii) to correct any statement contained in an earlier
communication with respect to such information or representations which has
become false or misleading.
Section 3.22 Environmental Matters. Except as disclosed in Schedule
------------ --------------------- --------
3.22, neither WNB nor WIC has knowledge that any environmental contaminant,
----
pollutant, toxic or hazardous waste or other similar substance has been
generated, used, stored,
-11-
processed, disposed of or discharged onto any of the real estate now or
previously owned or acquired (including without limitation any real estate
acquired by means of foreclosure or exercise of any other creditor's right) or
leased by WNB or WIC. In particular, without limiting the generality of the
foregoing sentence, except as disclosed in Schedule 3.22, neither WNB nor WIC
-------------
has any knowledge that: (i) any materials containing asbestos have been used
or incorporated in any building or other structure or improvement located on any
of the real estate now or previously owned or acquired (including without
limitation any real estate acquired by means of foreclosure or exercise of any
other creditor's right) or leased by WNB or WIC; (ii) any electrical
transformers, fluorescent light fixtures with ballasts or other equipment
containing PCB's are or have been located on any of the real estate now or
previously owned or acquired (including without limitation any real estate
acquired by means of foreclosure or exercise of any other creditor's right) or
leased by WNB or WIC; or (iii) any underground storage tanks for the storage of
gasoline, petroleum products or other toxic or hazardous wastes or similar
substances are or have ever been located on any of the real estate now or
previously owned or acquired (including without limitation any real estate
acquired by means of foreclosure or exercise of any other creditor's right) or
leased by WNB or WIC.
Section 3.23 Proxy Statement/Prospectus. At the time the Proxy
------------ --------------------------
Statement/Prospectus (as defined in Section 6.1(b) herein) is mailed to the
stockholders of WNB and at all times subsequent to such mailing, up to and
including the Effective Date, the Proxy Statement/Prospectus (including any pre-
and post-effective amendments and supplements thereto), with respect to all
information relating to WNB, WIC, WNB Common Stock, WIC Common Stock and all
actions taken and statements made by WNB and WIC in connection with the
transactions contemplated herein (except for information provided by FFC to WNB)
will: (i) comply in all material respects with applicable provisions of the
Securities Act of 1933, as amended (the "1933 Act"), and the Securities Exchange
Act of 1934, as amended (the "1934 Act"), and the applicable rules and
regulations of the Securities and Exchange Commission (the "SEC") or the Office
of the Comptroller of the Currency ("the OCC") thereunder; and (ii) not contain
any statement which, at the time and in light of the circumstances under which
it is made, is false or misleading with respect to any material fact, or omits
to state any material fact that is required to be stated therein or necessary in
order (A) to make the statements therein not false or misleading, or (B) to
correct any statement in an earlier communication with respect to the Proxy
Statement/Prospectus which has become false or misleading.
Section 3.24 SEC Filings. No registration statement, offering
------------ -----------
circular, proxy statement, schedule or report filed and not withdrawn, since
December 31, 1993, by WNB with the SEC or the OCC under the 1933 Act or the 1934
Act, on the date of effectiveness (in the case of any registration statement or
offering circular) or on the date of filing (in the case of any report or
schedule) or on the date of mailing (in the
-12-
case of any proxy statement), contained any untrue statement of a material fact
or omitted to state any material fact required to be stated therein or necessary
in order to make the statements made therein, in light of the circumstances
under which they were made, not misleading.
Section 3.25 Reports. WNB and WIC have filed all material reports,
------------ -------
registrations and statements that are required to be filed with the OCC, Federal
Reserve Board, the Federal Deposit Insurance Corporation (the "FDIC"), the New
Jersey Department of Banking and any other applicable federal, state or local
governmental or regulatory authorities and such reports, registrations and
statements referred to in this Section 3.25 were, as of their respective dates,
in compliance in all material respects with all of the statutes, rules and
regulations enforced or promulgated by the governmental or regulatory authority
with which they were filed; provided, however, that the failure to file any such
report, registration, or statement or the failure of any report, registration or
statement to comply with the applicable regulatory standard shall not be cleared
to be breach of the foregoing representation unless such failure has or may have
a material adverse impact on WNB or WIC on a consolidated basis. WNB has
furnished FFC with, or made available to FFC, copies of all such filings made in
the last three fiscal years and in the period from January 1, 1996 through the
date of this Agreement. The WNB Common Stock is traded in the over-the-counter
market.
Section 3.26 Loan Portfolio of WNB.
------------ ---------------------
(a) Attached hereto as Schedule 3.26 is a list of (w) all
-------------
outstanding commercial relationships, i.e. commercial loans, commercial loan
commitments and commercial letters of credit, of WNB with an aggregate principal
amount in excess of $500,000, (x) all loans of WNB classified by WNB or any
regulatory authority as "Substandard," "Doubtful" or "Loss," (y) all commercial
and mortgage loans of WNB classified as "non-accrual," and (z) all commercial
loans of WNB classified as "in substance foreclosed."
(b) WNB has adequately reserved for or charged off loans in
accordance with applicable regulatory requirements and WNB's reserve for loan
losses is adequate in all material respects.
Section 3.27 Investment Portfolio. Attached hereto as Schedule 3.27
------------ -------------------- -------------
is a list of all securities held by WNB and WIC for investment, showing the
principal amount, book value and market value of each security as of a recent
date, and of all short-term investments held by it as of June 30, 1996. These
securities are free and clear of all liens, pledges and encumbrances, except as
shown on Schedule 3.27.
-------------
-13-
Section 3.28 Regulatory Examinations.
------------ -----------------------
(a) Within the past five years, except for normal examinations
conducted by a regulatory agency in the regular course of the business of WNB or
WIC, no regulatory agency has initiated any proceeding or investigation into the
business or operations of WNB. Neither WNB nor WIC has received objection from
any regulatory agency to WNB's or WIC's response to any violation, criticism or
exception with respect to any report or statement relating to any examinations
of WNB and WIC which would have a materially adverse effect on WNB.
(b) Neither WNB nor WIC will be required to divest any assets
currently held by it or discontinue any activity currently conducted as a result
of the Federal Deposit Insurance Corporation Improvement Act of 1991, any
regulations promulgated thereunder, or otherwise which would have a materially
adverse effect on WNB and WIC on a consolidated basis.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF FFC
-------------------------------------
FFC represents and warrants to WNB, as of the date of this Agreement
and as of the date of the Closing, as follows:
Section 4.1 Authority. The execution and delivery of this Agreement
----------- ---------
and the consummation of the transactions contemplated herein have been
authorized by the Board of Directors of FFC, and no other corporate action on
the part of FFC is necessary to authorize this Agreement or the consummation by
FFC of the transactions contemplated herein. This Agreement has been duly
executed and delivered by FFC and, assuming due authorization, execution and
delivery by WNB, constitutes a valid and binding obligation of FFC. The
execution, delivery and consummation of this Agreement will not constitute a
violation or breach of or default under the Articles of Incorporation or Bylaws
of FFC or any statute, rule, regulation, order, decree, directive, agreement,
indenture or other instrument to which FFC is a party or by which FFC or any of
its properties are bound.
Section 4.2 Organization and Standing. FFC is a business corporation
----------- -------------------------
that is duly organized, validly existing and in good standing under the laws of
the Commonwealth of Pennsylvania. FFC is a registered bank holding company
under the Bank Holding Company Act of 1956, as amended (the "BHC Act"), and has
full power and lawful authority to own and hold its properties and to carry on
its present business.
-14-
Section 4.3 Capitalization. The authorized capital of FFC consists
----------- --------------
exclusively of 100,000,000 shares of FFC Common Stock and 10,000,000 shares of
preferred stock without par value (the "FFC Preferred Stock"). There are
validly issued 32,985,637 shares of FFC Common Stock as of the date of this
Agreement, of which 32,980,497 shares are outstanding, fully paid and non-
assessable and 5,140 shares are held as treasury shares. No shares of FFC
Preferred Stock have been issued as of the date of this Agreement, and FFC has
no present intention to issue any shares of FFC Preferred Stock. As of the date
of this Agreement, there are no outstanding obligations, options or rights of
any kind entitling other persons to acquire shares of FFC Common Stock or shares
of FFC Preferred Stock and there are no outstanding securities or other
instruments of any kind convertible into shares of FFC Common Stock or into
shares of FFC Preferred Stock, except as follows: (i) 868,141 shares of FFC
Common Stock are issuable upon the exercise of outstanding stock options granted
under the FFC Incentive Stock Option Plan and the FFC Employee Stock Purchase
Plan and (ii) there are outstanding 32,980,497 Rights representing the right
under certain circumstances to purchase shares of FFC Common Stock pursuant to
the terms of a Rights Agreement, dated June 20, 1989, entered into between FFC
and Xxxxxx Bank and (iii) shares of FFC Common Stock reserved from time to time
for issuance pursuant to FFC's Employee Stock Purchase and Dividend Reinvestment
Plans.
Section 4.4 Articles of Incorporation and Bylaws. The copies of the
----------- ------------------------------------
Articles of Incorporation, as amended, and of the Bylaws, as amended, of FFC
that have been delivered to WNB are true, correct and complete.
Section 4.5 Subsidiaries. Schedule 4.5 contains a list of all
----------- ------------ ------------
subsidiaries ("Subsidiaries") which FFC owns, directly or indirectly. Except as
otherwise disclosed on Schedule 4.5: (i) FFC owns, directly or indirectly, all
------------
of the outstanding shares of capital stock of each Subsidiary, and (ii) as of
the date of this Agreement: (A) there are no outstanding obligations, options or
rights of any kind entitling persons (other than FFC or any Subsidiary) to
acquire shares of capital stock of any Subsidiary, and (B) there are no
outstanding securities or other instruments of any kind held by persons (other
than FFC or any Subsidiary) that are convertible into shares of capital stock of
any Subsidiary. Each Subsidiary is duly organized, validly existing and in good
standing under the laws of the jurisdiction pursuant to which it is
incorporated. Each Subsidiary has full power and lawful authority to own and
hold its properties and to carry on its business as presently conducted. Each
Subsidiary which is a banking institution is an insured bank under the
provisions of the FDI Act.
Section 4.6 Financial Statements. FFC has delivered to WNB the
----------- --------------------
following financial statements: (i) Consolidated Balance Sheets, Consolidated
Statements of Income, Consolidated Statements of Shareholders' Equity, and
Consolidated Statements of Cash Flows for the years ended December 31, 1995,
1994 and 1993,
-15-
certified by Xxxxxx Xxxxxxxx LLP and set forth in the Annual Report to the
shareholders of FFC for the year ended December 31, 1995; and (ii) Consolidated
Balance Sheets as of June 30, 1996 and December 31, 1995, Consolidated
Statements of Income for the three-month and six-month periods ended June 30,
1996 and Consolidated Statements of Cash Flows for the six months ended June 30,
1996 and 1995,as filed with the SEC in a Quarterly Report on Form 10-Q (the
Consolidated Balance Sheet as of June 30, 1996 being hereinafter referred to as
the "FFC Balance Sheet"). Each of the foregoing financial statements fairly
presents the consolidated financial position, assets, liabilities and results of
operations of FFC at their respective dates and for the respective periods then
ended and has been prepared in accordance with generally accepted accounting
principles consistently applied, except as otherwise noted in a footnote thereto
and subject, in the case of the interim financial statements contained in FFC's
above-mentioned Quarterly Report, to normal recurring year-end adjustments,
which are not material in any case or in the aggregate.
Section 4.7 Absence of Undisclosed Liabilities. Except as disclosed
----------- ----------------------------------
in Schedule 4.7 or as reflected, noted or adequately reserved against in the FFC
------------
Balance Sheet, at June 30, 1996 FFC had no material liabilities (whether
accrued, absolute, contingent or otherwise) which are required to be reflected,
noted or reserved against therein under generally accepted accounting principles
or which are in any case or in the aggregate material. Except as described in
Schedule 4.7, since June 30, 1996 FFC has not incurred any such liability other
------------
than liabilities of the same nature as those set forth in the FFC Balance Sheet,
all of which have been reasonably incurred in the ordinary course of business.
Section 4.8 Absence of Changes. Since June 30, 1996, there has not
----------- ------------------
been any material and adverse change in the condition (financial or otherwise),
assets, liabilities, business, operations or future prospects of FFC.
Section 4.9 Litigation and Governmental Directives. Except as
----------- --------------------------------------
disclosed in Schedule 4.9: (i) there is no litigation, investigation or
------------
proceeding pending, or to the knowledge of FFC threatened, that involves FFC or
its properties and that, if determined adversely to FFC, would materially and
adversely affect the condition (financial or otherwise), assets, liabilities,
business, operations or future prospects of FFC; (ii) there are no outstanding
orders, writs, injunctions, judgments, decrees, regulations, directives, consent
agreements or memoranda of understanding issued by any federal, state or local
court or governmental authority or of any arbitration tribunal against FFC which
materially and adversely affect the condition (financial or otherwise), assets,
liabilities, business, operations or future prospects of FFC or restrict in any
manner the right of FFC to carry on its business as presently conducted; and
(iii) FFC is not aware of any fact or condition presently existing that might
give rise to any litigation, investigation or proceeding which, if determined
adversely to
-16-
FFC, would materially and adversely affect the condition (financial or
otherwise), assets, liabilities, business, operations or future prospects of FFC
or restrict in any manner the right of FFC to carry on its business as presently
conducted.
Section 4.10 Compliance with Laws; Governmental Authorizations.
------------ -------------------------------------------------
Except as disclosed in Schedule 4.10 or where noncompliance would not have a
-------------
material and adverse effect upon the condition (financial or otherwise), assets,
liabilities, business, operations or future prospects of FFC: (i) FFC and each
of its Subsidiaries are in compliance with all statutes, laws, ordinances,
rules, regulations, judgments, orders, decrees, directives, consent agreements,
memoranda of understanding, permits, concessions, grants, franchises, licenses,
and other governmental authorizations or approvals applicable to their
respective operations and properties; and (ii) all permits, concessions, grants,
franchises, licenses and other governmental authorizations and approvals
necessary for the conduct of the respective businesses of FFC and each of its
Subsidiaries as presently conducted have been duly obtained and are in full
force and effect, and there are not proceedings pending or threatened which may
result in the revocation, cancellation, suspension or materially adverse
modification of any thereof.
Section 4.11 Complete and Accurate Disclosure. Neither this Agreement
------------ --------------------------------
(insofar as it relates to FFC, FFC Common Stock, and the involvement of FFC in
the transactions contemplated hereby) nor any financial statement, schedule
(including, without limitation, its Schedules to this Agreement), certificate or
other statement or document delivered by FFC to WNB in connection herewith
contains any statement which, at the time and under the circumstances under
which it is made, is false or misleading with respect to any material fact or
omits to state any material fact necessary to make the statements contained
herein or therein not false or misleading. In particular, without limiting the
generality of the foregoing sentence, the information provided and the
representations made by FFC to WNB in connection with the Registration Statement
(as defined in Section 6.1(b)), both at the time such information and
representations are provided and made and at the time of the Closing, will be
true and accurate in all material respects and will not contain any false or
misleading statement with respect to any material fact or omit to state any
material fact required to be stated therein or necessary in order (i) to make
the statements made not false or misleading, or (ii) to correct any statement
contained in an earlier communication with respect to such information or
representations which has become false or misleading.
Section 4.12 Labor Relations. Neither FFC nor any of its Subsidiaries
------------ ---------------
is a party to or bound by any collective bargaining agreement. FFC and each of
its Subsidiaries enjoy good working relationships with their employees, and
there are no labor disputes pending, or to the knowledge of FFC or any
Subsidiary threatened, that might
-17-
materially and adversely affect the condition (financial or otherwise), assets,
liabilities, business or operations of FFC.
Section 4.13 Employee Benefits Plans. FFC's contributory profit-
------------ -----------------------
sharings plan, defined benefits pension plan and 401(k) plan (hereinafter
collectively referred to as the "FFC Pension Plans") are exempt from tax under
Sections 401 and 501 of the Code, have been maintained and operated in
compliance with all applicable provisions of the Code and ERISA, are not subject
to any accumulated funding deficiency within the meaning of ERISA and the
regulations promulgated thereunder, and do not have any outstanding liability to
the PBGC. No "prohibited transaction" or "reportable event" (as such terms are
defined in the Code or ERISA) has occurred with respect to the FFC Pension Plans
or any other FFC employee benefit plan (each hereinafter called an "FFC Benefit
Plan"). There have been no breaches of fiduciary duty by any fiduciary under or
with respect to the FFC Pension Plans or any other FFC Benefit Plan. FFC has
not incurred any liability for any tax imposed by Section 4975 of the Code or
for any penalty imposed by the Code or by ERISA with respect to the FFC Pension
Plans or any other FFC Benefit Plan.
Section 4.14 Environmental Matters. Except as disclosed in Schedule
------------ --------------------- --------
4.14 or as reflected, noted or adequately reserved against in the FFC Balance
----
Sheet, FFC has no knowledge of any material liability relating to any
environmental contaminant, pollutant, toxic or hazardous waste or other similar
substance that has been used, generated, stored, processed, disposed of or
discharged onto any of the real estate now or previously owned or acquired
(including without limitation real estate acquired by means of foreclosure or
other exercise of any creditor's right) or leased by FFC and which is required
to be reflected, noted or adequately reserved against in FFC's consolidated
financial statements under generally accepted accounting principles.
Section 4.15 SEC Filings. No registration statement, offering
------------ -----------
circular, proxy statement, schedule or report filed and not withdrawn, since
December 31, 1991, by FFC with the SEC under the 1933 Act or the 1934 Act, on
the date of effectiveness (in the case of any registration statement or offering
circular) or on the date of filing (in the case of any report or schedule) or on
the date of mailing (in the case of any proxy statement), contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading.
Section 4.16 Proxy Statement/Prospectus. At the time the Proxy
------------ --------------------------
Statement/Prospectus (as defined in Section 6.1(b)) is mailed to the
stockholders of WNB and at all times subsequent to such mailing, up to and
including the Effective Date, the Proxy Statement/Prospectus (including any pre-
and post-effective amendments and supplements thereto), with respect to all
information relating to FFC,
-18-
FFC Common Stock, and actions taken and statements made by FFC in connection
with the transactions contemplated herein (other than information provided by
WNB to FFC), will: (i) comply in all material respects with applicable
provisions of the 1933 Act and 1934 Act and the pertinent rules and regulations
thereunder; and (ii) not contain any statement which, at the time and in light
of the circumstances under which it is made, is false or misleading with respect
to any material fact, or omits to state any material fact that is required to be
stated therein or necessary in order (A) to make the statements therein not
false or misleading, or (B) to correct any statement in an earlier communication
with respect to the Proxy Statement/Prospectus which has become false or
misleading.
Section 4.17 Accounting Treatment. To the best of FFC's knowledge
------------ --------------------
after reasonable investigation and consultation with its advisors, the Merger
will qualify for pooling-of-interests accounting treatment.
ARTICLE V
COVENANTS OF WNB
----------------
From the date of this Agreement until the Effective Date, WNB
covenants and agrees to, and shall cause WIC to do the following:
Section 5.1 Conduct of Business. Except as otherwise consented to
----------- -------------------
by FFC in writing, which consent will not be unreasonably withheld, WNB and WIC
shall: (i) use all reasonable efforts to carry on their respective businesses
in, and only in, the Ordinary Course of Business; (ii) to the extent consistent
with prudent business judgment, use all reasonable efforts to preserve their
present business organizations, to retain the services of their present officers
and employees, and to maintain their relationships with customers, suppliers and
others having business dealings with WNB or WIC; (iii) maintain all of their
structures, equipment and other real property and tangible personal property in
good repair, order and condition, except for ordinary wear and tear and damage
by unavoidable casualty; (iv) use all reasonable efforts to preserve or collect
all material claims and causes of action belonging to WNB or WIC; (v) keep in
full force and effect all insurance policies now carried by WNB or WIC; (vi)
perform in all material respects each of their obligations under all Material
Contracts (as defined in Section 3.12 herein) to which WNB or WIC is a party or
by which either of them may be bound or which relate to or affect its
properties, assets and business; (vii) maintain their books of account and other
records in the Ordinary Course of Business; (viii) comply in all material
respects with all statutes, laws, ordinances, rules and regulations, decrees,
orders, consent agreements, memoranda of understanding and other federal, state,
and local governmental directives applicable to WNB or WIC and to the conduct of
their businesses; (ix) not amend WNB's or WIC's Articles of Association,
Certificate of Incorporation or Bylaws; (x) not enter into or assume any
Material Contract, incur any material liability or obligation, or make any
material commitment, except in the Ordinary Course of Business; (xi) except as
permitted in subparagraph (xxiii) below, not make any material acquisition or
disposition of any properties or assets or subject any of their properties
-19-
or assets to any material lien, claim, charge, or encumbrance of any kind
whatsoever; (xii) not take or permit to be taken any action which would
constitute a breach of any representation, warranty or covenant set forth in
this Agreement; (xiii) except as permitted in Section 5.11 herein, not declare,
set aside or pay any dividend or make any other distribution in respect of WNB
Common Stock; (xiv) not authorize, purchase, redeem, issue or sell (or grant
options or rights to purchase or sell) any shares of WNB Common Stock or any
other equity or debt securities of WNB; (xv) not increase the rate of
compensation of, pay a bonus or severance compensation to, establish or amend
any WNB Benefit Plan (as defined in Section 3.18 herein) for, or enter into or
amend any Employment Obligation (as defined in Section 3.17 herein) with, any
officer, director, employee or consultant of WNB or WIC, except that WNB and WIC
may grant reasonable salary increases and bonuses to their officers and
employees in the Ordinary Course of Business to the extent consistent with their
past practice; (xvi) not enter into any related party transaction of the kind
contemplated in Section 3.19 herein except in the Ordinary Course of Business
consistent with past practice (as disclosed on Schedule 3.19); (xvii) in
determining the additions to loan loss reserves and the loan write-offs,
writedowns and other adjustments that reasonably should be made by WNB with
respect to its fiscal year ending December 31, 1996, WNB and WIC shall consult
with FFC and shall act in accordance with generally accepted accounting
principles and WNB's and WIC's customary business practices; (xviii) file with
appropriate federal, state, local and other governmental agencies all tax
returns and other material reports required to be filed, pay in full or make
adequate provisions for the payment of all taxes, interest, penalties,
assessments or deficiencies shown to be due on tax returns or by any taxing
authorities and report all information on such returns truthfully, accurately
and completely; (xix) not renew any existing contract for services, goods,
equipment or the like or enter into, amend in any material respect or terminate
any contract or agreement (including without limitation any settlement agreement
with respect to litigation) that is or may reasonably be expected to have a
material adverse effect on WNB and WIC except in the Ordinary Course of Business
consistent with past practice (provided that FFC shall not unreasonably withhold
its consent to such transactions); (xx) except with respect to existing plans
related to the Mantua Township Branch, not make any capital expenditures other
than in the Ordinary Course of Business or as necessary to maintain existing
assets in good repair; (xxi) not make application for the opening or closing of
any, or open or close any, branches or automated banking facility; (xxii) not
make any equity investment or commitment to make such an investment in real
estate or in any real estate development project, other than in connection with
foreclosures, settlements in lieu of foreclosure or troubled loan or debt
restructuring in the Ordinary Course of Business consistent with customary
banking practice; (xxiii) not make purchases of securities for its investment
portfolio without prior consultation with FFC; or (xxiv) not take any other
action similar to the foregoing which would have the effect of frustrating the
purposes of this Agreement or the Merger or cause the Merger not to qualify for
pooling-of-interests accounting treatment or as a tax-free reorganization under
Section 368 of the Code.
-20-
Section 5.2 Best Efforts. WNB and WIC shall cooperate with FFC and
----------- ------------
shall use its best efforts to do or cause to be done all things necessary or
appropriate on its part in order to fulfill the conditions precedent set forth
in Article VII of this Agreement and to consummate this Agreement. In
particular, without limiting the generality of the foregoing sentence, WNB and
WIC shall: (i) cooperate with FFC in the preparation of all required
applications for regulatory approval of the transactions contemplated by this
Agreement and in the preparation of the Registration Statement (as defined in
Section 6.1(b)); (ii) call a meeting of its stockholders and take, in good
faith, all actions which are necessary or appropriate on its part in order to
secure the approval of this Agreement by its stockholders at that meeting; and
(iii) cooperate with FFC in making WNB's and WIC's employees reasonably
available for training by FFC at WNB's facilities prior to the Effective Date,
to the extent that such training is deemed reasonably necessary by FFC to ensure
that WNB's facilities will be properly operated in accordance with FFC's
policies after the Merger.
Section 5.3 Access to Properties and Records. WNB and WIC shall give
----------- --------------------------------
to FFC and its authorized employees and representatives (including without
limitation its counsel, accountants, economic and environmental consultants and
other designated representatives) such access during normal business hours to
all properties, books, contracts, documents and records of WNB and WIC as FFC
may reasonably request, subject to the obligation of FFC and its authorized
employees and representatives to maintain the confidentiality of all nonpublic
information concerning WNB and WIC obtained by reason of such access and subject
to applicable law.
Section 5.4 Subsequent Financial Statements. Between the date of
----------- -------------------------------
signing of this Agreement and the Effective Date, WNB and WIC shall promptly
prepare and deliver to FFC as soon as practicable all internal monthly and
quarterly financial statements, all quarterly and annual reports to stockholders
and all reports to regulatory authorities prepared by or for WNB or WIC (which
additional financial statements and reports are hereinafter collectively
referred to as the "Additional WNB Financial Statements"). The representations
and warranties set forth in Sections 3.6, 3.7 and 3.8 shall apply to the
Additional WNB Financial Statements.
Section 5.5 Update Schedules. WNB and WIC shall promptly disclose to
----------- ----------------
FFC in writing any change, addition, deletion or other modification to the
information set forth in its Schedules hereto.
Section 5.6 Notice. WNB and WIC shall promptly notify FFC in writing
----------- ------
of any actions, claims, investigations, proceedings or other developments which,
if pending or in existence on the date of this Agreement, would have been
required to be disclosed to FFC in order to ensure the accuracy of the
representations and warranties set forth in this Agreement or which otherwise
could materially and adversely affect the condition (financial or otherwise),
assets, liabilities, business operations or future
-21-
prospects of WNB or WIC or restrict in any manner their respective abilities to
carry on its business as presently conducted.
Section 5.7 Other Proposals. WNB and WIC shall not, nor shall they
----------- ---------------
permit any of their officers, directors, employees, agents, consultants or other
representatives to: (i) solicit, initiate or encourage any proposal for a merger
or other acquisition of WNB or WIC, or any material portion of their properties
or assets, with or by any person other than FFC, or (ii) cooperate with, or
furnish any nonpublic information concerning WNB or WIC to, any person in
connection with such a proposal (an "Acquisition Proposal"); provided, however,
that the obligations of WNB or WIC and their directors and other representatives
under this Section 5.7 are subject to the limitation that the Board of Directors
shall be free to take such action as the Board of Directors determines, in good
faith, that in the exercise of its fiduciary duties, after receipt of a written
opinion of outside counsel to that effect. WNB will notify FFC immediately if
any discussions or negotiations are sought to be initiated, any inquiry or
proposal is made, or any such information is requested, with respect to an
Acquisition Proposal or potential Acquisition Proposal or if any Acquisition
Proposal is received or indicated to be forthcoming.
Section 5.8 Affiliate Letters. WNB shall deliver or cause to be
----------- -----------------
delivered to FFC, at or before the Closing, a letter from each of the executive
officers and directors of WNB (and shall use its best efforts to obtain and
deliver such a letter from each stockholder of WNB) who may be deemed to be an
"affiliate" (as that term is defined for purposes of Rules 145 and 405
promulgated by the SEC under the 0000 Xxx) of WNB, in form and substance
satisfactory to FFC, under the terms of which each such officer, director or
stockholder acknowledges and agrees to abide by all limitations imposed by the
1933 Act and by all rules, regulations and releases promulgated thereunder by
the SEC with respect to the sale or other disposition of the shares of FFC
Common Stock to be received by such person pursuant to this Agreement.
Section 5.9 No Purchases or Sales of FFC Common Stock During Price
----------- ------------------------------------------------------
Determination Period. WNB and WIC shall not, and shall ensure that their
--------------------
executive officers and directors do not, and shall use their best efforts to
ensure that each stockholder of WNB who may be deemed an "affiliate" (as defined
in SEC Rules 145 and 405) of WNB does not, purchase or sell on NASDAQ, or submit
a bid to purchase or an offer to sell on NASDAQ, directly or indirectly, any
shares of FFC Common Stock or any options, rights or other securities
convertible into shares of FFC Common Stock during the Price Determination
Period.
Section 5.10 Accounting Treatment. WNB acknowledges that FFC
------------ --------------------
presently intends to treat the business combination contemplated by this
Agreement as a "pooling-of-interests" for financial reporting purposes. WNB
shall not take (and shall use its best efforts not to permit any of the
directors, officers, employees, stockholders, agents, consultants or other
representatives of WNB or WIC to take) any action that
-22-
would preclude FFC from treating such business combination as a "pooling-of-
interests" for financial reporting purposes.
Section 5.11 Dividends. WNB shall not declare or pay a cash dividend
------------ ---------
on the WNB Common Stock; provided, however, that WNB may declare and pay a
dividend of up to $.21 per share of WNB Common Stock on (i) December 15, 1996;
(ii) March 15, 1997, provided that the Effective Date does not occur (or is not
expected to occur) on or before the record date for the dividend on the FFC
Common Stock scheduled to be paid on April 15, 1997; (iii) June 15, 1997,
provided that the Effective Date does not occur (or is not expected to occur) on
or before the record date for the dividend on the FFC Common Stock scheduled to
be paid on July 15, 1997; and (iv) September 15, 1997, provided that the
Effective Date does not occur (or is not expected to occur) on or before the
record date for the dividend on the FFC Common Stock scheduled to be paid on
October 15, 1997 (it being the intent of FFC and WNB that WNB be permitted to
pay a dividend on the WNB Common Stock on the dates indicated in subsections
(ii), (iii) and (iv) above only if the shareholders of WNB, upon becoming
shareholders of FFC, would not be entitled to receive a dividend on the FFC
Common Stock on the payment dates indicated in such subsections).
Section 5.12 Employment Obligations. Prior to the Effective Date,
------------ ----------------------
without the prior written consent of FFC, WNB shall not modify the terms of the
Employment Obligations (as defined in Section 3.17) and neither WNB nor WIC
shall create any new Employment Obligation.
ARTICLE VI
COVENANTS OF FFC
----------------
From the date of this Agreement until the Effective Date, or until
such later date as may be expressly stipulated in any Section of this Article
VI, FFC covenants and agrees to do the following:
Section 6.1 Best Efforts. FFC shall cooperate with WNB and shall use
----------- ------------
its best efforts to do or cause to be done all things necessary or appropriate
on its part in order to fulfill the conditions precedent set forth in Article
VII of this Agreement and to consummate this Agreement. In particular, without
limiting the generality of the foregoing sentence, FFC agrees to do the
following:
(a) Applications for Regulatory Approval: FFC shall promptly
------------------------------------
prepare and file, with the cooperation and assistance of (and after review by)
WNB and its counsel and accountants, all required applications for regulatory
approval of the transactions contemplated by this Agreement, including without
limitation an application for approval
-23-
under the BHC Act, the National Bank Act, the New Jersey Banking Act of 1948, as
amended, and the Pennsylvania Banking Code of 1965, as amended, as required;
(b) Registration Statement: FFC shall promptly prepare, with the
----------------------
cooperation and assistance of (and after review by) WNB and its counsel and
accountants, and file with the SEC and the OCC a registration statement (the
"Registration Statement") and a proxy statement and prospectus which is prepared
as a part thereof (the "Proxy Statement/Prospectus") for the purpose of
registering the shares of FFC Common Stock to be issued to shareholders of WNB,
and the soliciting the proxies of WNB's shareholders in favor of the Merger,
under the provisions of this Agreement. FFC may rely upon all information
provided to it by WNB and WIC in this connection and FFC shall not be liable for
any untrue statement of a material fact or any omission to state a material fact
in the Registration Statement, or in the Proxy Statements/Prospectus, if such
statement is made by FFC in reliance upon any information provided to FFC by WNB
or WIC or by any of their officers, agents or representatives;
(c) State Securities Laws: FFC, with the cooperation and
---------------------
assistance of WNB and its counsel and accountants, shall promptly take all such
actions as may be necessary or appropriate in order to comply with all
applicable securities laws of any state having jurisdiction over the
transactions contemplated by this Agreement;
(d) Stock Listing: FFC, with the cooperation and assistance of
-------------
WNB and its counsel and accountants, shall promptly take all such actions as may
be necessary or appropriate in order to list the shares of FFC Common Stock to
be issued in the Merger on NASDAQ; and
(e) WNB Interim Bank. FFC shall organize WNB Interim Bank and
----------------
cause WNB Interim Bank to be a party to this Agreement.
(f) Accounting Treatment. FFC shall take no action which would
--------------------
have the effect of causing the Merger not to qualify for pooling-of-interests
accounting treatment.
Section 6.2 Access to Properties and Records. FFC shall give to WNB
----------- --------------------------------
and to its authorized employees and representatives (including without
limitation WNB's counsel, accountants, economic and environmental consultants
and other designated representatives) such access during normal business hours
to all properties, books, contracts, documents and records of FFC as WNB may
reasonably request, subject to the obligation of WNB and its authorized
employees and representatives to maintain the confidentiality of all nonpublic
information concerning FFC obtained by reason of such access.
-24-
Section 6.3 Subsequent Financial Statements. Between the date of
----------- -------------------------------
signing of this Agreement and the Effective Date, FFC shall promptly prepare and
deliver to WNB as soon as practicable each Quarterly Report to FFC's
shareholders and any Annual Report to FFC's shareholders normally prepared by
FFC. The representations and warranties set forth in Sections 4.5, 4.6 and 4.7
herein shall apply to the financial statements (hereinafter collectively
referred to as the "Additional FFC Financial Statements") set forth in the
foregoing Quarterly Reports and any Annual Report to FFC's shareholders.
Section 6.4 Update Schedule. FFC shall promptly disclose to WNB in
----------- ---------------
writing any change, addition, deletion or other modification to the information
set forth in its Schedule to this Agreement.
Section 6.5 Notice. FFC shall promptly notify WNB in writing of any
----------- ------
actions, claims, investigations or other developments which, if pending or in
existence on the date of this Agreement, would have been required to be
disclosed to WNB in order to ensure the accuracy of the representations and
warranties set forth in this Agreement or which otherwise could materially and
adversely affect the condition (financial or otherwise), assets, liabilities,
business, operations or future prospects of FFC or restrict in any manner the
right of FFC to carry on its business as presently conducted.
Section 6.6 Employment Arrangements.
----------- -----------------------
(a) From and after the Effective Date, FFC shall cause WNB: (i)
to satisfy each of the Employment Obligations (as defined in Section 3.17
herein), and (ii) to satisfy WNB's obligations under the WNB Benefit Plans.
(b) On and after the Effective Date for a period of at least five
(5) years, FFC shall cause WNB to (i) pay compensation to each person who was
employed by WNB or WIC as of the Effective Date and who continues to be employed
by WNB on or after the Effective Date, that is at least equal to the aggregate
compensation that such person was receiving from WNB or WIC prior to the
Effective Date, (ii) WNB shall provide employee benefits, including under the
WNB Benefit Plans, to each such person who is a full-time employee, on and after
the Effective Date, that are substantially equivalent in the aggregate to the
employee benefits that such person was receiving as a full-time employee from
WNB prior to the Effective Date, and (iii) WNB shall provide employee benefits
to each such person who is a part-time employee, on or after the Effective Date,
that are the same as the employee benefits that are being received at the
applicable time by part-time employees of other banking Subsidiaries owned by
FFC.
Section 6.7 No Purchase or Sales of FFC Common Stock During Price
----------- -----------------------------------------------------
Determination Period. Neither FFC nor any Subsidiary of FFC, nor any executive
--------------------
officer or director of FFC or any Subsidiary of FFC, nor any shareholder of
FFC who
-25-
may be deemed to be an "affiliate" (as that term is defined for purposes of
Rules 145 and 405 promulgated by the SEC under the 0000 Xxx) of FFC, shall
purchase or sell on NASDAQ, or submit a bid to purchase or an offer to sell on
NASDAQ, directly or indirectly, any shares of FFC Common Stock or any options,
rights or other securities convertible into shares of FFC Common Stock during
the Price Determination Period; provided, however, that FFC may purchase shares
-------- -------
of FFC Common Stock in the ordinary course of business during the Price
Determination Period pursuant to FFC's Benefit Plans or FFC's dividend
reinvestment plan.
Section 6.8 Appointment of FFC Director. FFC shall, on or promptly after
----------- ---------------------------
the Effective Date, appoint to FFC's Board of Directors one of WNB's current
directors (designated, subject to the reasonable approval of FFC, by vote of
WNB's Board of Directors prior to the Effective Date) to serve as a director of
FFC. During the five-year period after the Effective Date, the FFC Board of
Directors shall nominate such designee for election, and support his election,
at each annual meeting of shareholders of FFC at which such designee's term
expires. During such period, in the event such designee shall cease to serve as
a director of FFC, the Board of Directors of WNB shall have the right to
designate one other person then serving on as a director of WNB to serve as a
director of FFC (subject to the concurrence of FFC as to the person designated).
Section 6.9 Continuation of WNB's Structure, Name and Directors. For a
----------- ---------------------------------------------------
period of five (5) years after the Effective Date, FFC shall (subject to the
right of FFC to terminate its obligations under this Section 6.9 as a result of
regulatory considerations, safe and sound banking practices or the exercise of
their fiduciary duties by FFC's directors) (i) preserve the business structure
of WNB as a national banking association;; (ii) preserve the present name of
WNB; and (iii) continue in office the present directors of WNB who indicate
their desire to serve (the "WNB Continuing Directors"), provided, that (A) each
--------
non-employee WNB Continuing Director shall continue to receive director's fees
from WNB of $10,000 per director annually and shall continue to receive such
other incidental benefits as he was receiving from WNB prior to the Effective
Date (such benefits being previously disclosed to FFC), and (B) each WNB
Continuing Director who has reached the age of 70 as of the Effective Date, or
who reaches such age within three (3) years thereafter, shall be permitted to
serve for a period of three (3) years after the Effective Date before becoming
subject to FFC's mandatory retirement rules for directors. Notwithstanding
anything herein to the contrary, the WNB Continuing Directors, in their exercise
of their fiduciary duty as to the best interests of WNB and FFC, may, by a
majority vote of such directors, modify or waive any or all of the foregoing
provisions in this Section 6.9.
-26-
ARTICLE VII
CONDITIONS PRECEDENT
--------------------
Section 7.1 Common Conditions. The obligations of the parties to
----------- -----------------
consummate this Agreement shall be subject to the satisfaction of each of the
following common conditions prior to or as of the Closing, except to the extent
that any such condition shall have been waived in accordance with the provisions
of Section 8.4 herein:
(a) Stockholder Approval: This Agreement shall have been duly
--------------------
authorized, approved and adopted by the stockholders of WNB.
(b) Regulatory Approvals: The approval of each federal and state
--------------------
regulatory authority having jurisdiction over the transactions contemplated by
this Agreement, including without limitation, the Federal Reserve Board, the
OCC, the New Jersey Department of Banking, the Pennsylvania Department of
Banking and the Maryland Bank Commissioner, shall have been obtained and all
applicable waiting and notice periods shall have expired, subject to no terms or
conditions which would (i) require or could reasonably be expected to require
(A) any divestiture by FFC of a portion of the business of FFC, or any
subsidiary of FFC or (B) any divestiture by WNB or WIC of a portion of their
businesses which FFC in its good faith judgment believes will have a significant
adverse impact on the business or prospects of WNB or WIC, as the case may be,
or (ii) impose any condition upon FFC, or any of its subsidiaries, which in
FFC's good faith judgment (x) would be materially burdensome to FFC and its
subsidiaries taken as a whole, (y) would significantly increase the costs
incurred or that will be incurred by FFC as a result of consummating the Merger
or (z) would prevent FFC from obtaining any material benefit contemplated by it
to be attained as a result of the Merger.
(c) Stock Listing. The shares of FFC Common Stock to be issued in
-------------
the Merger shall have been authorized for listing on NASDAQ.
(d) Tax Opinion. Each of FFC and WNB shall have received an
-----------
opinion of FFC's counsel, Barley, Snyder, Xxxxx & Xxxxx, LLP, reasonably
acceptable to FFC and WNB, addressed to FFC and WNB, with respect to federal tax
laws or regulations, to the effect that:
(1) The Merger will constitute a reorganization within the
meaning of Section 368(a)(1)(A) and (a)(2)(E) of the Code;
(2) No gain or loss will be recognized by FFC, WNB Interim
Bank or WNB by reason of the Merger;
-27-
(3) The bases of the assets of WNB immediately after the
Merger will be the same as the bases of such assets immediately prior to the
Merger;
(4) The holding period of the assets of WNB immediately after
the Merger will include the period during which such assets were held by WNB
prior the Merger;
(5) A holder of WNB Common Stock who receives shares of FFC
Common Stock in exchange for his WNB Common Stock pursuant to the reorganization
(including fractional shares of FFC Common Stock deemed issued as described
below) will not recognize any gain or loss upon the exchange;
(6) A holder of WNB Common Stock who receives cash in lieu of
a fractional share of FFC Common Stock will be treated as if he received a
fractional share of FFC Common Stock pursuant to the reorganization and FFC then
redeemed such fractional share for the cash. The holder of WNB Common Stock will
recognize capital gain or loss on the constructive redemption of the fractional
share in an amount equal to the difference between the cash received and the
adjusted basis of the fractional share;
(7) The tax basis of the FFC Common Stock to be received by
the shareholders of WNB pursuant to the terms of this Agreement will be equal to
the tax basis of the WNB Common Stock surrendered in exchange therefor,
decreased by the amount of cash received and increased by the amount of any gain
(and by the amount of any dividend income) recognized on the exchange; and
(8) The holding period of the shares of FFC Common Stock to
be received by the shareholders of WNB will include the period during which they
held the shares of WNB Common Stock surrendered, provided the shares of WNB
Common Stock are held as a capital asset on the date of the exchange.
(e) Registration Statement: The Registration Statement (as
----------------------
defined in Section 6.1(b), including any amendments thereto) shall have been
declared effective by the SEC; the Proxy Statement/Prospectus shall have
received regulatory clearance from the OCC, the information contained in the
Registration Statement and the Proxy Statement/Prospectus shall be true,
complete and correct in all material respects as of the date of mailing of the
Proxy Statement/Prospectus (as defined in Section 6.1(b)) to the shareholders of
WNB; regulatory clearance for the offering contemplated by the Registration
Statement (the "Offering") shall have been received from each federal and state
regulatory authority having jurisdiction over the Offering; and no stop order
shall have been issued and no proceedings shall have been instituted or
threatened by any federal or state regulatory authority to suspend or terminate
the effectiveness of the Registration Statement or the Offering.
-28-
(f) No Suits: No action, suit or proceeding shall be pending or
--------
threatened before any federal, state or local court or governmental authority or
before any arbitration tribunal which seeks to modify, enjoin or prohibit or
otherwise adversely and materially affect the transactions contemplated by this
Agreement; provided, however, that if FFC agrees to defend and indemnify WNB and
-------- -------
their respective officers and directors with regard to any such action, suit or
proceeding pending or threatened against them or any of them, then such pending
or threatened action, suit or proceeding shall not be deemed to constitute the
failure of a condition precedent to the obligation of WNB to consummate this
Agreement.
Section 7.2 Conditions Precedent to Obligations of FFC. The
----------- ------------------------------------------
obligations of FFC to consummate this Agreement shall be subject to the
satisfaction of each of the following conditions prior to or as of the Closing,
except to the extent that any such condition shall have been waived by FFC in
accordance with the provisions of Section 8.4 herein:
(a) Accuracy of Representations and Warranties: All of the
------------------------------------------
representations and warranties of WNB as set forth in this Agreement, all of the
information contained in the Schedules hereto and all WNB Closing Documents (as
defined in Section 7.2(i)) shall be true and correct in all material respects as
of the Closing as if made on such date (or on the date to which it relates in
the case of any representation or warranty which expressly relates to an earlier
date); provided, that, without limiting the generality of the foregoing clause,
--------
a "material" deviation from the accuracy of WNB's representations and warranties
shall be deemed to exist for purposes of this Section 7.2(a) if, as of the
Closing, FFC shall have discovered information not previously disclosed in WNB's
Schedules or in the WNB Balance Sheet indicating that WNB or WIC has incurred or
will incur costs, expenses, losses and/or liabilities which would have a
material impact on WNB's financial condition or operating results.
(b) Covenants Performed: WNB shall have performed or complied in
-------------------
all material respects with each of the covenants required by this Agreement to
be performed or complied with by it.
(c) Opinion of Counsel for WNB: FFC shall have received an
--------------------------
opinion, dated the Effective Date, from Xxxxxxx, Xxxxxx & Xxxxxxxx, counsel to
WNB, in substantially the form of Exhibit D hereto. In rendering any such
---------
opinion, such counsel may require and, to the extent they deem necessary or
appropriate may rely upon, opinions of other counsel and upon representations
made in certificates of officers of WNB, FFC, affiliates of the foregoing, and
others.
(d) Affiliate Agreements. Shareholders of WNB who are or will be
--------------------
affiliates of WNB or FFC for the purposes of Accounting Series Release No. 135
and
-29-
the 1933 Act shall have entered into agreements with FFC, in form and substance
satisfactory to FFC, reasonably necessary to assure (i) the ability of FFC to
use pooling-of-interests accounting for the Merger; and (ii) compliance with
Rule 145 under the 1933 Act.
(e) Financial Confirmation: FFC (together with its accountants,
----------------------
if the advice of such accountants is deemed necessary or desirable by FFC) shall
have established to its reasonable satisfaction that the WNB Balance Sheet
fairly presents the financial condition, assets and liabilities of WNB as at
June 30, 1996, and that, since December 31, 1995, there has not been any
material and adverse change in the condition (financial or otherwise), assets,
liabilities, business, operations or future prospects of WNB. In particular,
without limiting the generality of the foregoing sentence, the Additional WNB
Financial Statements (as defined in Section 5.4) shall indicate that the
consolidated financial condition, assets, liabilities and results of operations
of WNB as of the respective dates reported therein do not vary adversely in any
material respect from the consolidated financial condition, assets, liabilities
and results of operations presented in the WNB Balance Sheet. For purposes of
this Section 7.2(f), the terms "material and adverse change" and "vary adversely
in any material respect" shall mean any change or changes that would result, in
a material adverse effect upon (A) the condition (financial or otherwise),
assets, liabilities, business, operations or future prospects of WNB, or (B) the
ability of WNB to consummate the transactions contemplated by this Agreement; it
being understood that such definition shall not include: (i) a change with
respect to, or effect on, the WNB resulting from a change in law, rule,
regulation, generally accepted accounting principles or regulatory accounting
principles, (ii) a change with respect to, or effect on, WNB resulting from
expenses (such as legal, accounting and investment bankers' fees) incurred in
connection with this Agreement or the transactions contemplated hereby which are
substantially consistent with the estimates thereof provided to FFC; or (iii) a
change with respect to, or effect on, the WNB resulting from any other matter
affecting depository institutions generally including, without limitation,
changes in general economic conditions and changes in prevailing interest and
deposit rates.
(f) Accountants' Letter. At its option, FFC shall have received a
-------------------
"comfort" letter from the independent certified public accountants for WNB,
dated (i) the effective date of the Registration Statement and (ii) the
effective date, in each case substantially to the effect that:
(1) it is a firm of independent public accounts with respect
to WNB and its subsidiaries within the meaning of the 1933 Act and the rules and
regulations of the SEC thereunder;
(2) in its opinion the audited financial statements of WNB
examined by it and included in the Registration Statement comply as to form in
all
-30-
material respects with the applicable requirements of the 1933 Act and the
applicable published rules and regulations of the SEC thereunder with respect to
registration statements on the form employed; and
(3) on the basis of specified procedures (which do not
constitute an examination in accordance with generally accepted audit
standards), consisting of a reading of the unaudited financial statements, if
any, of WNB included in such Registration Statement and of the latest available
unaudited financial statements of WNB, inquiries of officers responsible for
financial and accounting matters of WNB and a reading of the minutes of meetings
of shareholders and the Board of Directors of WNB, nothing has come to its
attention which causes it to believe: (i) that the financial statements, if any,
of WNB included in such Registration Statement do not comply in all material
respects with the applicable accounting requirements of the 1933 Act and the
published rules and regulations thereunder; and (ii) that any such unaudited
financial information set forth in such Registration Statement has been derived,
are not fairly presented in conformity with generally accepted accounting
principles applied on a basis consistent with that of the audited financial
statements.
(g) Accounting Treatment: FFC and its accountants shall have
--------------------
established to their satisfaction that, as of the Closing, the transactions
contemplated by this Agreement can be accounted for as a "pooling-of-interests"
for financial reporting purposes; provided, however, that FFC shall have no
right to terminate this Agreement pursuant to this Section 7.2(g) if the
inability to use "pooling of interest" accounting treatment is due solely to
actions by FFC taken after the date of this Agreement.
(h) Federal and State Securities and Antitrust Laws: FFC and its
-----------------------------------------------
counsel shall have determined to their satisfaction that, as of the Closing, all
applicable securities and antitrust laws of the federal government and of any
state government having jurisdiction over the transactions contemplated by this
Agreement shall have been complied with.
(i) Dissenting Shareholders: Dissenters' rights shall have been
-----------------------
exercised with respect to less than 10% of the outstanding shares of WNB Common
Stock.
(j) Environmental Matters: No environmental problem of the kind
---------------------
contemplated in Section 3.22 and not disclosed in Schedule 3.22 shall have been
-------------
discovered which would, or which potentially could, materially and adversely
affect the condition (financial or otherwise), assets, liabilities, business,
operations or future prospects of WNB, provided, that for purposes of
--------
determining the materiality of an undisclosed environmental problem or problems,
the definition of "material" shall be governed by the proviso to Section 7.2(a)
of this Agreement.
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(k) Closing Documents: WNB shall have delivered to FFC: (i) a
-----------------
certificate signed by WNB's President and Chief Executive Officer and by its
Secretary verifying that, to the best of their knowledge after reasonable
investigation, all of the representations and warranties of WNB set forth in
this Agreement are true and correct in all material respects as of the Closing
and that WNB has performed in all material respects each of the covenants
required to be performed by it under this Agreement; (ii) all consents and
authorizations of landlords and other persons that are necessary to permit this
Agreement to be consummated without violation of any lease or other agreement to
which WNB is a party or by which they or any of its properties are bound; and
(iii) such other certificates and documents as FFC and its counsel may
reasonably request (all of the foregoing certificates and other documents being
herein referred to as the "WNB Closing Documents").
Section 7.3 Conditions Precedent to the Obligations of WNB. The
----------- ----------------------------------------------
obligation of WNB to consummate this Agreement shall be subject to the
satisfaction of each of the following conditions prior to or as of the Closing,
except to the extent that any such condition shall have been waived by WNB in
accordance with the provisions of Section 8.4 herein:
(a) Accuracy of Representations and Warranties: All of the
------------------------------------------
representations and warranties of FFC as set forth in this Agreement, all of the
information contained in its Schedules and all FFC Closing Documents (as defined
in Section 7.3(e) of this Agreement) shall be true and correct in all material
respects as of the Closing as if made on such date (or on the date to which it
relates in the case of any representation or warranty which expressly relates to
an earlier date).
(b) Covenants Performed: FFC shall have performed or complied in
-------------------
all material respects with each of the covenants required by this Agreement to
be performed or complied with by FFC.
(c) Opinion of Counsel for FFC: WNB shall have received an
--------------------------
opinion from Barley, Snyder, Xxxxx & Xxxxx, LLP, counsel to FFC, dated the
Effective Date, in substantially the form of Exhibit E hereto. In rendering any
---------
such opinion, such counsel may require and, to the extent they deem necessary or
appropriate may rely upon, opinions of other counsel and upon representations
made in certificates of officers of FFC, WNB, affiliates of the foregoing, and
others.
(d) Fairness Opinion: WNB shall have obtained from [XxXxxxxxx,
----------------
Xxxx & Xxxxxx], or from another independent financial advisor selected by the
Board of Directors of WNB, an opinion dated within five (5) days of the Proxy
Statement/Prospectus to be furnished to the shareholders of WNB stating that the
terms of the acquisition contemplated by this Agreement are fair to the
shareholders of WNB from a financial point of view.
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(e) Financial Confirmation: WNB (together with its accountants,
----------------------
if the advice of such accountants is deemed necessary or desirable by WNB) shall
have established to its reasonable satisfaction that the FFC Balance Sheet
fairly presents the financial condition, assets and liabilities of FFC as at
June 30, 1996, and that, since December 31, 1995, there has not been any
material and adverse change in the condition (financial or otherwise), assets,
liabilities, business, operations or future prospects of FFC. In particular,
without limiting the generality of the foregoing sentence, the Additional FFC
Financial Statements shall indicate that the financial condition, assets,
liabilities and results of operations of FFC as of the respective dates reported
therein do not vary adversely in any material respect from the financial
condition, assets, liabilities and results of operations presented in the FFC
Balance Sheet. For purposes of this Section 7.3(g), the terms "material and
adverse change" and "vary adversely in any material respect" shall mean any
change or changes that would result, in the aggregate, in a reduction of more
than five percent (5%) in FFC's consolidated total shareholders' equity between
June 30, 1996 or December 31, 1995, as the case may be, and any later date up to
and including the Effective Date, as determined in accordance with generally
accepted accounting principles consistently applied.
(f) Closing Documents: FFC shall have delivered to WNB: (i) a
-----------------
certificate signed by FFC's President and Chief Executive Officer and by its
Secretary verifying that, to the best of their knowledge after reasonable
investigation, all of the representations and warranties of FFC set forth in
this Agreement are true and correct in all material respects as of the Closing
and that FFC has performed in all material respects each of the covenants
required to be performed by FFC; and (ii) such other certificates and documents
as WNB and its counsel may reasonably request (all of the foregoing certificates
and documents being herein referred to as the "FFC Closing Documents").
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
---------------------------------
Section 8.1 Termination. This Agreement may be terminated at any time
----------- -----------
before the Effective Date (whether before or after the authorization, approval
and adoption of this Agreement by the stockholders of WNB) as follows:
(a) Mutual Consent: This Agreement may be terminated by mutual
--------------
consent of the parties upon the affirmative vote of a majority of each of the
Boards of Directors of WNB and FFC, followed by written notices given to the
other party.
(b) Unilateral Action by FFC: This Agreement may be terminated
------------------------
unilaterally by the affirmative vote of the Board of Directors of FFC, followed
by
-33-
written notice given to WNB, if: (i) there has been a material breach by WNB
of any representation, warranty or covenant set forth in this Agreement which
breach results in a material and adverse change as to WNB (as such standard is
set forth in Section 7.2(c) herein) and such breach has not been cured within
thirty (30) days after written notice of such breach has been given by FFC to
WNB; or (ii) any condition precedent to FFC's obligations as set forth in
Article VII of this Agreement remains unsatisfied, through no fault of FFC, on
September 30, 1997.
(c) Unilateral Action By WNB: This Agreement may be terminated
------------------------
unilaterally by the affirmative vote of a majority of the Board of Directors of
WNB, followed by written notice given to FFC, if: (i) there has been a material
breach by FFC of any representation, warranty or covenant set forth in this
Agreement and such breach has not been cured within thirty (30) days after
written notice of such breach has been given by WNB to FFC; (ii) any condition
precedent to WNB's obligations as set forth in Article VII of this Agreement
remains unsatisfied, through no fault of WNB, on September 30, 1997; or (iii)
the Closing Market Price is equal to or less than $12.00.
Section 8.2 Effect of Termination.
----------- ---------------------
(a) Effect. In the event of a permitted termination of this
------
Agreement under Section 8.1 herein shall become null and void and the
transactions contemplated herein shall thereupon be abandoned, except that the
provisions relating to limited liability and confidentiality set forth in
Sections 8.2(b) and 8.2(c) herein shall survive such termination.
(b) Limited Liability. The termination of this Agreement in
-----------------
accordance with the terms of Section 8.1 herein shall create no liability on the
part of either party, or on the part of either party's directors, officers,
shareholders, agents or representatives, except that if this Agreement is
terminated by FFC by reason of a material breach by WNB, or if this Agreement is
terminated by WNB by reason of a material breach by FFC, and such breach
involves an intentional, willful or grossly negligent misrepresentation or
breach of covenant, the breaching party shall be liable to the nonbreaching
party for all costs and expenses reasonably incurred by the nonbreaching party
in connection with the preparation, execution and attempted consummation of this
Agreement, including the fees of its counsel, accountants, consultants and other
advisors and representatives.
(c) Confidentiality. In the event of a permitted termination of
---------------
this Agreement under Section 8.1 herein, neither FFC nor WNB shall use or
disclose to any other person any confidential information obtained by it during
the course of its investigation of the other party or parties, except as may be
necessary in order to
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establish the liability of the other party or parties for breach as contemplated
under Section 8.2(b) herein.
Section 8.3 Amendment. To the extent permitted by law, this Agreement
----------- ---------
may be amended at any time before the Effective Date (whether before or after
the authorization, approval and adoption of this Agreement by the stockholders
of WNB), but only by a written instrument duly authorized, executed and
delivered by FFC and by WNB; provided, however, that (i) any amendment to the
-------- -------
provisions of Section 2.1 herein relating to the consideration to be received by
the former stockholders of WNB in exchange for their shares of WNB Common Stock
shall not take effect until such amendment has been approved, adopted or
ratified by the stockholders of WNB in accordance with applicable law and (ii)
WNB Interim Bank shall be permitted to join as a party to this Agreement upon
its formation without execution of such joinder by FFC or WNB.
Section 8.4 Waiver. Any term or condition of this Agreement may be
----------- ------
waived, to the extent permitted by applicable federal and state law, by the
party or parties entitled to the benefit thereof at any time before the
Effective Date (whether before or after the authorization, approval and adoption
of this Agreement by the stockholders of WNB) by a written instrument duly
authorized, executed and delivered by such party or parties.
ARTICLE IX
RIGHTS OF DISSENTING SHAREHOLDERS OF WNB
----------------------------------------
Section 9.1 Rights of Dissenting Shareholders of WNB. The
----------- ----------------------------------------
stockholders of WNB shall be entitled to and may exercise dissenters' rights if
and to the extent they are entitled to do so under the provisions of 12 U.S.C
(S)215a(b), (c) and (d).
ARTICLE X
CLOSING AND EFFECTIVE DATE
--------------------------
Section 10.1 Closing. Provided that all conditions precedent set
------------ -------
forth in Article VII of this Agreement shall have been satisfied or shall have
been waived in accordance with Section 8.4 of this Agreement, the parties shall
hold a closing (the "Closing") at the offices of FFC at Xxx Xxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxx, within thirty (30) days after the receipt of all
required regulatory approvals and after the expiration of all applicable waiting
periods on a date to be agreed upon by the parties, at which time the parties
shall deliver the WNB Closing Documents, the FFC Closing Documents, the opinions
of counsel required by Sections 7.1(c), 7.2(c) and 7.3(c)
-35-
herein, and such other documents and instruments as may be necessary or
appropriate to effectuate the purposes of this Agreement.
Section 10.2 Effective Date. The merger of WNB with and into FFC
------------ --------------
shall become effective and this Agreement shall be consummated on the date (the
"Effective Date") approved by the OCC pursuant to the Plan of Merger and the
National Bank Act.
ARTICLE XI
NO SURVIVAL OF REPRESENTATIONS AND WARRANTIES
---------------------------------------------
Section 11.1 No Survival. The representations and warranties of WNB
------------ -----------
and of FFC set forth in this Agreement shall expire and be terminated on the
Effective Date by consummation of this Agreement, and no such representation or
warranty shall thereafter survive.
ARTICLE XII
GENERAL PROVISIONS
------------------
Section 12.1 Expenses. Except as provided in Section 8.2(b) herein,
------------ --------
each party shall pay its own expenses incurred in connection with this Agreement
and the consummation of the transactions contemplated herein. For purposes of
this Section 12.1 herein, the cost of printing the Proxy Statement/Prospectus
shall be deemed to be an expense of FFC.
Section 12.2 Other Mergers and Acquisitions. Subject to the right of
------------ ------------------------------
WNB to refuse to consummate this Agreement pursuant to Section 8.1(c) herein by
reason of a material breach by FFC of the warranty and representation set forth
in Section 4.7 herein, nothing set forth in this Agreement shall be construed:
(i) to preclude FFC from acquiring, or to limit in any way the right of FFC to
acquire, prior to or following the Effective Date, the stock or assets of any
other financial services institution or other corporation or entity, whether by
issuance or exchange of FFC Common Stock or otherwise; (ii) to preclude FFC from
issuing, or to limit in any way the right of FFC to issue, prior to or following
the Effective Date, FFC Common Stock, FFC Preferred Stock or any other equity or
debt securities; or (iii) to preclude FFC from taking, or to limit in any way
the right of FFC to take, any other action not expressly and specifically
prohibited by the terms of this Agreement.
Section 12.3 Notices. All notices, claims, requests, demands and
------------ -------
other communications which are required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been duly delivered if
delivered in
-36-
person, transmitted by telegraph or facsimile machine (but only if receipt is
acknowledged in writing), or mailed by registered or certified mail, return
receipt requested, as follows:
(a) If to FFC, to:
Xxxxx X. Xxxxxx, Xx., President
and Chief Executive Officer
Xxxxxx Financial Corporation
Xxx Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxx, Xxxxxxxxxxxx 00000
With a copy to:
Xxxx X. Xxxxxxxx, Esq.
Barley, Snyder, Xxxxx & Xxxxx, LLP
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
(b) If to WNB, to:
Xxxxx Xxxxx, Chief Executive Officer
The Woodstown National Bank & Trust Company
Xxx Xxxxx Xxxx Xxxxxx,
Xxxxxxxxx, Xxx Xxxxxx 00000
With a copy to:
Xxxxxx X. Passaic, Jr., Esq.
Xxxxxxx, Xxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Section 12.4 Counterparts. This Agreement may be executed
------------ ------------
simultaneously in several counterparts, each of which shall be deemed an
original, but all such counterparts together shall be deemed to be one and the
same instrument.
Section 12.5 Governing Law. This Agreement shall be deemed to have
------------ -------------
been made in, and shall be governed by and construed in accordance with the
substantive laws of, the Commonwealth of Pennsylvania.
-37-
Section 12.6 Parties in Interest. This Agreement shall be binding
------------ -------------------
upon and inure to the benefit of the parties hereto and their respective
successors, assigns and legal representatives; provided, however, that neither
-------- -------
party may assign its rights or delegate its duties under this Agreement without
the prior written consent of the other party.
Section 12.7 Entire Agreement. This Agreement, together with the
------------ ----------------
Warrant Agreement and the Warrant being executed by the parties on the date
hereof, sets forth the entire understanding and agreement of the parties hereto
and supersedes any and all prior agreements, arrangements and understandings,
whether oral or written, relating to the subject matter hereof and thereof.
-38-
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers all as of the day and year first
above written.
XXXXXX FINANCIAL CORPORATION
By:
--------------------------------
Xxxxx X. Xxxxxx, Xx., President
and Chief Executive Officer
Attest:
----------------------------
Xxxxxxx X. Xxxxxxx, Secretary
THE WOODSTOWN NATIONAL BANK &
TRUST COMPANY
By:
--------------------------------
Xxxxx Xxxxx, President
Attest:
----------------------------
, Secretary
-39-
INDEX OF SCHEDULES
------------------
Schedule 3.7 Undisclosed Liabilities
------------
Schedule 3.8 Changes
------------
Schedule 3.9 Dividends, Distributions and Stock Purchases
------------
Schedule 3.10 Taxes
-------------
Schedule 3.11 Title to and Condition of Assets
-------------
Schedule 3.12 Contracts
-------------
Schedule 3.13 Litigations and Governmental Directives
-------------
Schedule 3.14 Compliance with Laws; Governmental
-------------
Authorizations
Schedule 3.15 Insurance
-------------
Schedule 3.16 Financial Institution Bonds
-------------
Schedule 3.17 Labor Relations and Employment Agreements
-------------
Schedule 3.18 Employee Benefit Plans
-------------
Schedule 3.19 Related Party Transactions
-------------
Schedule 3.20 Finders
-------------
Schedule 3.22 Environmental Matters
-------------
Schedule 3.26 Loan Portfolio
-------------
Schedule 3.27 Investment Portfolio
-------------
Schedule 4.5 Subsidiaries
------------
Schedule 4.7 Undisclosed Liabilities
------------
Schedule 4.9 Litigation and Governmental Directives
------------
Schedule 4.10 Compliance with Laws; Governmental
------------- Authorizations
Schedule 4.14 Environmental Matters
-------------
INDEX OF EXHIBITS
-----------------
Exhibit A Form of Warrant Agreement
---------
Exhibit B Form of Warrant
---------
Exhibit C Form of Plan of Merger
---------
Exhibit D Form of Opinion of WNB's Counsel
---------
Exhibit E Form of Opinion of FFC's Counsel
---------
