AGREEMENT AND PLAN OF MERGER THE EPHRATA NATIONAL BANK with and into EPHRATA INTERIM NATIONAL BANK under the charter of THE EPHRATA INTERIM NATIONAL BANK under the title of THE EPHRATA NATIONAL BANK
Exhibit
2.2
AND
PLAN
OF MERGER
THE
EPHRATA NATIONAL BANK
with and
into
EPHRATA
INTERIM NATIONAL BANK
under the
charter of
THE
EPHRATA INTERIM NATIONAL BANK
under the
title of
THE
EPHRATA NATIONAL BANK
THIS PLAN
OF MERGER made between THE EPHRATA NATIONAL BANK (hereinafter referred to as
"Bank"), a banking association organized under the laws of the United States,
being located at 00 Xxxx Xxxx Xxxxxx, Xxxxxxx, Xxxxxx of Lancaster, in the
Commonwealth of Pennsylvania and THE EPHRATA INTERIM NATIONAL BANK (In
Organization) (hereinafter referred to as "Interim Bank"), a banking association
organized under the laws of the United States, also being located at 00 Xxxx
Xxxx Xxxxxx, Xxxxxxx, Xxxxxx of Lancaster, in the Commonwealth of Pennsylvania,
(collectively referred to as the “Parties”).
WHEREAS,
Bank, Interim Bank, and ENB Financial Corp (the “Holding Company”) (collectively
referred to as the “Participants”), a Pennsylvania business corporation of which
Interim Bank is a wholly-owned subsidiary, have entered into a Plan of
Reorganization of even date herewith (the “Plan of Reorganization”) providing
for, among other things, the execution of the Agreement and Plan of Merger (the
“Agreement”) and for the merger (the “Merger”) of Bank and Interim Bank in
accordance with the terms and conditions hereinafter set forth;
NOW,
THEREFORE, the Parties, each acting pursuant to a resolution of its board of
directors, adopted by a majority vote of its directors, pursuant to the
authority given by and in accordance with the provisions of the Act of November
7, 1918, as amended (12 U.S.C. Section 215a) (the "Bank Merger Act"), and
intending to be legally bound hereby, agree to effect the Merger in accordance
with the terms and conditions hereinafter set forth:
Section
1.
The Bank
shall be merged with and into the Interim Bank under the charter of the Interim
Bank and with the charter number of the Bank as of the effective time of the
Merger (“Effective Time”).
Section
2.
The
Receiving Association (hereinafter referred to as the "Association") shall be
the Interim Bank and shall be known as "The Ephrata National Bank" upon
completion of this transaction.
Section
3.
The
business of the Association shall be that of a national banking association.
This business shall be conducted by the Association at its main office which
shall be located at 00 Xxxx Xxxx Xxxxxx, Xxxxxxx, Xxxxxx of Lancaster,
Pennsylvania as well as at its legally established branches.
Section
4.
The
authorized amount of common stock is Twelve Million (12,000,000) shares, each of
Twenty Cents ($.20) par value or Two Million Four Hundred Thousand Dollars
($2,400,000) of capital stock. The aggregate amount outstanding upon
completion of the transaction shall be 2,858,216.301 shares of common stock,
each of Twenty Cents ($.20) par value, or $571,643.26 of capital
stock. At the Effective Time, the Association shall have a surplus of
$68,382,111, and undivided profits, including capital reserves, which when
combined with the capital and surplus, will be equal to the combined capital
structures of the merging banks as stated in the preamble of this Agreement,
adjusted, however, for normal earnings and expenses between November 30, 2007
and the Effective Time.
Section
5.
All
assets of the Bank, as they exist at the Effective Time, shall pass to and vest
in the Association without any conveyance or other transfer. The Association
shall be responsible for all of the liabilities of every kind and description of
each of the merging Parties existing as of the Effective Time. A committee of
six, three to be appointed by the Board of Directors of each bank at the
Effective Time, shall have satisfied themselves that the statement of condition
of each Party as of November 30, 2007, fairly presents its financial condition
and that since such date there has been no material adverse change in the
financial condition or business of either Party.
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Section 6.
The Bank
shall contribute to the Association acceptable assets having a book value, over
and above its liability to its creditors, of at least $68,382,111 to the
Association. The assets must also have an estimated fair value over
and above its liability to its creditors, of at least $68,382,111, or one
hundred percent (100%) of the estimated fair value of excess acceptable assets
over and above liabilities to creditors. The assets however, may be
adjusted for normal earnings and expenses between November 30, 2007, and the
Effective Time as well as for the allowance of cash payments, if any, permitted
under this Agreement.
Section
7.
The
manner and basis of converting shares of common stock of the Bank and Interim
Bank shall be as follows:
7.1.
Stock of the Interim
Bank. The shares of common stock, par value Twenty Cents ($.20) per
share, of the Interim Bank issued and outstanding immediately prior to the
Effective Time shall continue to be issued and outstanding shares of the
Association and shall be held by the Holding Company. From and after
the Effective Time, each certificate that prior to the Effective Time
represented shares of the Interim Bank shall evidence ownership of share of the
Association on the basis hereinbefore set forth.
7.2.
Stock of the
Bank. Each share of common stock, par value of Twenty Cents ($.20) per
share, of the Bank issued and outstanding immediately prior to the Effective
Time shall be converted into and become one (1) share of fully paid and
non-assessable common stock, par value Twenty Cents ($.20) per share, of the
Holding Company. This conversion will take place on the Effective
Time, by virtue of the merger, and without any action on the part of the holder
thereof. Notwithstanding the foregoing, shares that are owned by
shareholders who have duly perfected dissenters' rights in accordance with this
Plan of Merger and applicable law in addition to fractional shares will not
undergo such conversion. From and after the Effective Time, each
certificate that represented shares of common stock of the Bank prior to the
Effective Time shall evidence ownership of shares of common stock of the Holding
Company on the basis set forth herein. No fractional shares of common
and no scrip certificates therefore shall be issued in connection with the
Merger. In lieu of the issuance of any fractional share to which a
shareholder would otherwise be entitled, each shareholder of the Bank shall
receive in cash an amount equal to the fair market value of his or her
fractional interest. From and after the Effective Date, each
certificate that represented shares of Common Stock of the Bank prior to the
Effective Date shall evidence ownership of shares of common stick of the Holding
Company on the basis set forth herein.
7.3.
Treasury Stock.
Each share of common stock, par value Twenty Cents ($.20) per share, of the Bank
held as a treasury share immediately prior to the Effective Time, if any, shall
thereupon and without notice be canceled.
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7.4.
Exchange Agent.
If and when the Holding Company determines, the Bank shall designate the
Secretary or another officer of the Holding Company or the Bank to act as the
exchange agent. The exchange agent will receive certificates that
represented the Bank's common stock immediately prior to the Effective Time from
the holders thereof and will exchange such certificates for common stock of the
Holding Company as provided.
7.5.
Exchange
Procedure. If appointed pursuant to Section 7.4 hereof, the exchange
agent shall promptly mail a letter of transmittal to each record holder as of
the date of exchange of an outstanding certificate or certificates that
represented shares of the Bank's common stock prior to the Effective
Time. The letter of transmittal will specify how delivery will be
effected and state that the risk of loss and title to such certificate or
certificates will pass only upon proper delivery of such certificate or
certificates together with a properly executed letter of transmittal to the
exchange agent at its address stated therein. The letter of transmittal will
also include instructions for use in effecting the surrender of such certificate
or certificates for exchange therefor. Upon surrender to the exchange agent of
such certificate or certificates and a properly executed letter of transmittal,
the exchange agent shall exchange such certificate or certificates for shares of
common stock of the Holding Company as provided herein.
7.6.
Dissenters'
Rights. Shareholders of the Bank shall be entitled to exercise the rights
provided in the Bank Merger Act with respect to this Plan of
Merger.
Section
8.
Neither
Party shall declare nor pay any dividend to its shareholders between the date of
this Agreement and the time at which the merger shall become effective except
for the declaration and payment of any normal dividend. Neither Party
shall dispose of any of its assets in any other manner except in the normal
course of business and for adequate value.
Section
9.
The
present Board of Directors of the Bank shall continue to serve as the Board of
Directors of the Association until the next annual meeting or until such time as
their successors have been elected and have qualified.
Section
10.
The
articles of association of the Association shall become effective as specified
in the "Certificate Approving Merger" to be issued by the Comptroller of the
Currency effective as of the time this merger. The articles of
association of the Bank shall read in their entirety as follows:
FIRST.
The title of this Association shall be “The Ephrata National
Bank”.
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SECOND.
The main office shall be in Ephrata, Lancaster County, Pennsylvania.
The general business of the Association shall be conducted at its main
office and its legally established branches.
THIRD.
The Board of Directors of this Association shall consist of not less than
five nor more than twenty-five shareholders. At any meeting of the shareholders
held for the purpose of electing Directors, or changing the number thereof, the
number of Directors may be determined by a majority of the votes cast by the
shareholders in person or by proxy. A majority of the Board of Directors shall
be necessary to constitute a quorum for the transaction of business at any
Directors’ meeting. The Board of Directors shall have the power to fix a
mandatory retirement age for Directors, who are elected for the first time after
the effective date of this amendment, not however, lower than age seventy (70)
by making an appropriate amendment to the by-laws.
FOURTH.
The regular annual meeting of the shareholders of this Association shall be held
at its main office or other convenient place duly authorized by the Board of
Directors on such day of each year as specified in the bylaws, at which meeting
a Board of Directors shall be elected. If no such election shall be held on that
day, it may be held at any regular adjournment thereof or at a subsequent
special meeting called in accordance with the provisions of the laws of the
United States.
FIFTH.
The amount of capital stock of this Association shall be two million four
hundred thousand dollars ($2,400,000), divided into twelve million shares of
common stock of the par value of twenty cents ($.20) each. Said
capital stock may be increased or decreased from time to time in accordance with
the provisions of the laws of the United States.
If the
capital stock is increased by the sale of additional shares thereof, each
shareholder shall be entitled to subscribe for such additional shares in
proportion to the number of shares of said capital stock owned by him at the
time the increase is authorized by the shareholders, unless another time
subsequent to the date of the shareholders’ meeting is specified in a resolution
adopted by the shareholders at the time the increase is authorized. The Board of
Directors shall have the power to prescribe a reasonable period of time within
which the preemptive rights to subscribe to the new shares of capital stock must
be exercised.
If the
capital stock is increased by a stock dividend, each shareholder shall be
entitled to his proportionate amount of such increase in accordance with the
number of shares of capital stock owned by him at the time the increase is
authorized by the shareholders, unless another time subsequent to the date of
the shareholders’ meeting is specified in a resolution adopted by the
shareholders at the time the increase is authorized.
SIXTH.
The Board of Directors shall appoint one of its members President of this
Association, who shall be Chairman of the Board, unless the Board appoints
another
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director
to be the Chairman. The Board of Directors shall have the power to appoint one
or more Vice Presidents, at least one of whom shall also be a member of the
Board of Directors, and who shall be authorized, in the absence of the
President, to perform all acts and duties pertaining to the office of the
President; to appoint a Cashier and such other officers and employees as may be
required to transact the business of this Association; to fix the salaries to be
paid to such officers and employees of this Association, and to dismiss any of
such officers or employees and appoint others to take their place.
The Board
of Directors shall have the power to define the duties of officers and employees
of this Association and to require adequate bonds from them for the faithful
performance of their duties; to make all Bylaws that may be lawful for the
general regulation of the business of this Association and the management of its
affairs, and generally to do and perform all acts that may be lawful for a Board
of Directors to do and perform.
The Board
of Directors shall have the power to change the location of the main office of
this Association to any other place within the limits of Ephrata,
Pennsylvania
without
the approval of the shareholders of this Association but subject to the approval
of the Comptroller of the Currency; and shall have the power to change the
location of any branch or branches of this Association to any other location,
without the approval of the shareholders of this Association but subject to the
approval of the Comptroller of the Currency.
SEVENTH.
The corporate existence of this Association shall continue until
terminated in accordance with the laws of the United States.
EIGHTH.
The Board of Directors of this Association, or any three or more shareholders
owning, in the aggregate, not less than ten per centum (10%) of the stock of
this Association, may call a special meeting of shareholders at any
time.
Unless
otherwise provided by the laws of the United States, a notice of the time,
place, and purpose of every regular annual, and every special meeting of the
shareholders shall be given by first- class mail, postage prepaid, mailed at
least ten days prior to the date of such meeting to each shareholder of record
at his address as shown upon the books of this Association.
Subject
to the provisions of the laws of the United States, these Articles of
Association may be amended at any meeting of the shareholders for which adequate
notice has been given, by the affirmative vote of the owners of a majority of
the stock of this Association, voting in person or by proxy.
Section
11.
This
Agreement may be terminated by the unilateral action of the Board of Directors
of any Participant prior to the approval of the stockholders of said participant
or by the mutual consent of the Board of all Participants after any shareholder
group has taken
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affirmative
action. Since time is of the essence to the Agreement, if for any reason the
transaction shall not have been consummated by December 31, 2008, the Agreement
shall terminate automatically as of that date unless extended in writing prior
to said date by mutual action of the Boards of Directors of the
Participants.
Section
12.
The
Agreement shall be approved, adopted, ratified, and confirmed by the affirmative
vote of the shareholders of each of the Parties owning at least two-thirds (2/3)
of its capital stock outstanding at a meeting to be held on the call of the
Directors. The merger shall become effective at the time specified in
a certificate to be issued by the Comptroller of the Currency of the United
States, under the seal of office, approving the merger.
Section
13.
The
obligations of the Bank and the Interim Bank to effect the merger shall be
subject to all of the terms and conditions contained in the Plan of
Reorganization.
Section
14.
The
people who are executive or other officers of the Bank immediately prior to the
consummation of the merger shall serve as the officers of the Association from
and after the Effective Time and until such time as the Board of Directors of
the Association shall otherwise determine. At the Effective Time, all people who
are employees of the Bank and the Interim Bank shall become employees of the
Association.
[Signature
Page Follows]
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WITNESS
the signatures and seals of said merging banks this 14th day of
January, 2008, each hereunto set by its President or a Vice President and
attested by its Cashier or Secretary, pursuant to a resolution of its Board of
Directors, acting by a majority thereof.
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ATTEST:
/s/ Xxxx X.
Xxxxxxxx
Xxxx
X. Xxxxxxxx
Executive
Vice President and
Corporate
Secretary
|
THE
EPHRATA NATIONAL BANK
By: /s/ Xxxxx X. Xxxxx,
Xx.
Xxxxx X. Xxxxx, Xx.
President and Chief Executive
Officer
|
|
ATTEST:
/s/ Xxxx X.
Xxxxxxxx
Xxxx
X. Xxxxxxxx
Vice
President and Secretary
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THE
EPHRATA INTERIM NATIONAL BANK
By: /s/ Xxxxx X. Xxxxx,
Xx.
Xxxxx X. Xxxxx, Xx.
President and Chief Executive
Officer
|
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COMMONWEALTH
OF PENNSYLVANIA:
:
SS.
COUNTY
OF LANCASTER:
On this
14th
day of January, 2008, before me, a Notary Public for the Commonwealth and County
aforesaid, personally came Xxxxx X. Xxxxx, Xx., as President and Chief Executive
Officer, and Xxxx X. Xxxxxxxx, as Executive Vice President and Corporate
Secretary, of The Ephrata National Bank, and each in his said capacity
acknowledged the foregoing instrument to be the act and deed of said national
banking association and the seal affixed thereto to be its seal.
WITNESS
my official seal and signature this day and year aforesaid.
|
(Seal
of Notary)
|
/s/ Xxxxxx
Xxxxxxxxxx
Notary
Public, Lancaster County
My
commission expires: July 27, 0000
|
XXXXXXXXXXXX
XX XXXXXXXXXXXX:
:
SS.
COUNTY
OF LANCASTER:
On this
14th
day of January, 2008, before me, a Notary Public for the Commonwealth and County
aforesaid, personally came Xxxxx X. Xxxxx, Xx., as President and Chief Executive
Officer, and Xxxx X. Xxxxxxxx, as Executive Vice President and Corporate
Secretary, of The Ephrata Interim National Bank, and each in his capacity
acknowledged the foregoing instrument to be the act and deed of said national
banking association and the seal affixed thereto to be its seal.
WITNESS
my official seal and signature this day and year aforesaid.
|
(Seal
of Notary)
|
/s/ Xxxxxx
Xxxxxxxxxx
Notary
Public, Lancaster County
My
commission expires: July 27, 2011
|
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