AGREEMENT AND PLAN OF MERGER
BY AND BETWEEN
SKYLANDS FINANCIAL CORPORATION
AND
▇▇▇▇▇▇ FINANCIAL CORPORATION
TABLE OF CONTENTS
ARTICLE I. THE MERGER............................................................................................... 1
Section 1.1. Merger................................................................................................... 1
Section 1.2. Name..................................................................................................... 2
Section 1.3. Articles of Incorporation................................................................................ 2
Section 1.4. Bylaws................................................................................................... 2
Section 1.5. Directors and Officers................................................................................... 2
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............................................................................................ 3
(d) Closing Market Price............................................................................................ 3
Section 2.2. Exchange of Stock Certificates........................................................................... 3
(a) Exchange Agent.................................................................................................. 3
(b) Surrender of Certificates....................................................................................... 3
(c) Dividend Withholding............................................................................................ 4
(d) Failure to Surrender Certificates............................................................................... 4
(e) Expenses........................................................................................................ 4
Section 2.3. Treatment of Outstanding SFC Options..................................................................... 4
Section 2.4. Reservation of Shares.................................................................................... 5
Section 2.5. Taking Necessary Action.................................................................................. 5
Section 2.6. Press Releases........................................................................................... 6
Section 2.7. FFC Common Stock......................................................................................... 6
Section 2.8. No Right of Dissent...................................................................................... 6
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF SFC...................................................................... 6
Section 3.1. Authority................................................................................................ 6
Section 3.2. Organization and Standing................................................................................ 7
Section 3.3. Subsidiaries............................................................................................. 7
Section 3.4. Capitalization........................................................................................... 7
Section 3.5. Charter, Bylaws and Minute Books......................................................................... 8
Section 3.6. Financial Statements..................................................................................... 8
Section 3.7. Absence of Undisclosed Liabilities....................................................................... 8
Section 3.8. Absence of Changes....................................................................................... 8
Section 3.9. Dividends, Distributions and Stock Purchases............................................................. 9
Section 3.10. Taxes.................................................................................................... 9
Section 3.11. Title to and Condition of Assets......................................................................... 9
Section 3.12. Contracts................................................................................................ 9
Section 3.13. Litigation and Governmental Directives................................................................... 11
Section 3.14. Compliance with Laws; Governmental Authorizations........................................................ 11
Section 3.15. Insurance................................................................................................ 12
Section 3.16. Financial Institutions Bonds............................................................................. 12
Section 3.17. Labor Relations and Employment Agreements................................................................ 12
Section 3.18. Employee Benefit Plans................................................................................... 12
Section 3.19. Related Party Transactions............................................................................... 13
Section 3.20. No Finder................................................................................................ 13
Section 3.21. Complete and Accurate Disclosure......................................................................... 13
Section 3.22. Environmental Matters.................................................................................... 13
Section 3.23. Proxy Statement/Prospectus............................................................................... 14
Section 3.24. SEC Filings.............................................................................................. 14
Section 3.25. Reports.................................................................................................. 14
Section 3.26. Loan Portfolio of SCB.................................................................................... 15
Section 3.27. Investment Portfolio..................................................................................... 15
Section 3.28. Regulatory Examinations.................................................................................. 15
Section 3.29. Beneficial Ownership of FFC Common Stock................................................................. 16
Section 3.30. Fairness Opinion......................................................................................... 16
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF FFC.................................................................... 16
Section 4.1. Authority................................................................................................ 16
Section 4.2. Organization and Standing................................................................................ 16
Section 4.3. Capitalization........................................................................................... 16
Section 4.4. Articles of Incorporation and Bylaws..................................................................... 17
Section 4.5. Subsidiaries............................................................................................. 17
Section 4.6. Financial Statements..................................................................................... 17
Section 4.7. Absence of Undisclosed Liabilities....................................................................... 17
Section 4.8. Absence of Changes....................................................................................... 18
Section 4.9. Litigation and Governmental Directives................................................................... 18
Section 4.10. Compliance with Laws; Governmental Authorizations........................................................ 18
Section 4.11. Complete and Accurate Disclosure......................................................................... 18
Section 4.12. Labor Relations.......................................................................................... 19
Section 4.13. Employee Benefits Plans.................................................................................. 19
Section 4.14. Environmental Matters.................................................................................... 19
Section 4.15. SEC Filings.............................................................................................. 19
Section 4.16. Proxy Statement/Prospectus............................................................................... 20
Section 4.17. Regulatory Approvals..................................................................................... 20
Section 4.18. No Finder................................................................................................ 20
Section 4.19. Taxes.................................................................................................... 20
Section 4.20. Title to and Condition of Assets......................................................................... 20
Section 4.21. Contracts................................................................................................ 21
Section 4.22. Insurance................................................................................................ 21
Section 4.23. Reports.................................................................................................. 21
ARTICLE V. COVENANTS OF SFC......................................................................................... 21
Section 5.1. Conduct of Business...................................................................................... 21
Section 5.2. Best Efforts............................................................................................. 23
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Section 5.3. Access to Properties and Records......................................................................... 23
Section 5.4. Subsequent Financial Statements.......................................................................... 24
Section 5.5. Update Schedules......................................................................................... 24
Section 5.6. Notice................................................................................................... 24
Section 5.7. No Solicitation.......................................................................................... 24
Section 5.8. Affiliate Letters........................................................................................ 26
Section 5.9. No Purchases or Sales of FFC Common Stock During Price Determination Period.............................. 26
Section 5.10. Dividends................................................................................................ 26
ARTICLE VI. COVENANTS OF FFC......................................................................................... 27
Section 6.1. Best Efforts............................................................................................. 27
(a) Applications for Regulatory Approval............................................................................ 27
(b) Registration Statement.......................................................................................... 27
(c) State Securities Laws........................................................................................... 27
(d) Stock Listing................................................................................................... 27
(e) Adopt Amendments................................................................................................ 27
Section 6.2. Access to Properties and Records......................................................................... 28
Section 6.3. Subsequent Financial Statements.......................................................................... 28
Section 6.4. Update Schedules......................................................................................... 28
Section 6.5. Notice................................................................................................... 28
Section 6.6. Employment Arrangements.................................................................................. 28
Section 6.7. No Purchase or Sales of FFC Common Stock During Price Determination Period............................... 29
Section 6.8 Continuation of SCB's Structure, Name and Directors...................................................... 29
Section 6.9 Insurance................................................................................................ 30
ARTICLE VII. CONDITIONS PRECEDENT..................................................................................... 31
Section 7.1. Common Conditions........................................................................................ 31
(a) Shareholder Approval............................................................................................ 31
(b) Regulatory Approvals............................................................................................ 31
(c) Stock Listing................................................................................................... 31
(d) Tax Opinion..................................................................................................... 31
(e) Registration Statement.......................................................................................... 32
(f) No Suits........................................................................................................ 33
(g) Interim Condition............................................................................................... 32
Section 7.2. Conditions Precedent to Obligations of FFC............................................................... 33
(a) Accuracy of Representations and Warranties...................................................................... 33
(b) Covenants Performed............................................................................................. 33
(c) Opinion of Counsel for SFC...................................................................................... 33
(d) Affiliate Agreements............................................................................................ 33
(e) SFC Options..................................................................................................... 33
(f) No Material Adverse Change...................................................................................... 33
(g) Accountants' Letter............................................................................................. 34
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(g) Accountants' Letter............................................................................................. 35
(h) Federal and State Securities and Antitrust Laws................................................................. 35
(i) Environmental Matters........................................................................................... 35
(j) Closing Documents............................................................................................... 35
Section 7.3. Conditions Precedent to the Obligations of SFC........................................................... 35
(a) Accuracy of Representations and Warranties...................................................................... 36
(b) Covenants Performed............................................................................................. 36
(c) Opinion of Counsel for FFC...................................................................................... 36
(d) FFC Options..................................................................................................... 36
(e) No Material Adverse Change...................................................................................... 36
(e) Fairness Opinion................................................................................................ 37
(f) Closing Documents............................................................................................... 37
ARTICLE VIII. TERMINATION, AMENDMENT AND WAIVER........................................................................ 37
Section 8.1. Termination.............................................................................................. 37
(a) Mutual Consent.................................................................................................. 37
(b) Unilateral Action by FFC........................................................................................ 37
(c) Unilateral Action By SFC........................................................................................ 37
(d) Market Price of FFC Common Stock................................................................................ 38
Section 8.2. Effect of Termination.................................................................................... 38
(a) Effect.......................................................................................................... 38
(b) Limited Liability............................................................................................... 38
(c) Confidentiality................................................................................................. 39
Section 8.3. Amendment................................................................................................ 39
Section 8.4. Waiver................................................................................................... 39
ARTICLE IX. CLOSING AND EFFECTIVE TIME............................................................................... 39
Section 9.1. Closing.................................................................................................. 39
Section 9.2. Effective Time........................................................................................... 39
ARTICLE X. NO SURVIVAL OF REPRESENTATIONS AND WARRANTIES............................................................ 40
Section 10.1. No Survival.............................................................................................. 40
ARTICLE XI. GENERAL PROVISIONS....................................................................................... 40
Section 11.1. Expenses................................................................................................. 40
Section 11.2. Other Mergers and Acquisitions........................................................................... 40
Section 11.3. Notices.................................................................................................. 40
Section 11.4. Counterparts............................................................................................ 41
Section 11.5. Governing Law............................................................................................ 41
Section 11.6. Parties in Interest...................................................................................... 41
Section 11.7. Entire Agreement......................................................................................... 41
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INDEX OF SCHEDULES
Schedule 2.3 SFC Options
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Schedule 3.7 Undisclosed Liabilities
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Schedule 3.8 Changes
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Schedule 3.9 Dividends, Distributions and Stock Purchases
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Schedule 3.10 Taxes
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Schedule 3.11 Title to and Condition of Assets
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Schedule 3.12 Contracts
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Schedule 3.13 Litigations and Governmental Directives
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Schedule 3.14 Compliance with Laws; Governmental Authorizations
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Schedule 3.15 Insurance
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Schedule 3.16 Financial Institutions Bonds
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Schedule 3.17 Labor Relations and Employment Agreements
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Schedule 3.18 Employee Benefit Plans
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Schedule 3.19 Related Party Transactions
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Schedule 3.20 Finders
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Schedule 3.22 Environmental Matters
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Schedule 3.26 Loan Portfolio
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Schedule 3.27 Investment Portfolio
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Schedule 4.5 Subsidiaries
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Schedule 4.7 Undisclosed Liabilities
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Schedule 4.9 Litigation and Governmental Directives
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Schedule 4.10 Compliance with Laws; Governmental Authorizations
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Schedule 4.14 Environmental Matters
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Schedule 6.8 SCB Director Fees and Benefits
------------
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INDEX OF EXHIBITS
Exhibit A Form of Warrant Agreement
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Exhibit B Form of Warrant
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Exhibit C Form of Opinion of SFC's Counsel
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Exhibit D Form of Opinion of FFC's Counsel
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER made as of the 23rd day of February,
2000, by and between ▇▇▇▇▇▇ FINANCIAL CORPORATION, a Pennsylvania business
corporation having its administrative headquarters at One Penn Square, P. O. ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("FFC"), and SKYLANDS FINANCIAL CORPORATION,
a New Jersey business corporation having its administrative headquarters at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ("SFC").
BACKGROUND:
FFC is a bank holding company registered under the Bank Holding
Company Act of 1956, as amended (the "BHC Act"). SFC is a bank holding company
registered under the BHC Act which is the parent of Skylands Community Bank
("SCB"). SCB is the parent of Skylands Community Investment Co., Inc. ("SCI").
FFC and SFC wish to merge with each other. 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) SFC will be merged with and into FFC, (ii)
FFC will survive the Merger, and (iii) all of the outstanding shares of the
common stock of SFC, $2.50 par value per share ("SFC Common Stock"), will be
converted into shares of the common stock of FFC, par value $2.50 per share
("FFC Common Stock").
Simultaneously with the execution of this Agreement, the parties are
to enter into a Warrant Agreement in substantially the form of Exhibit A
---------
attached hereto (the "Warrant Agreement"), which provides for the delivery by
SFC of a warrant in substantially the form of Exhibit B attached hereto (the
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"Warrant") entitling FFC to purchase shares of the SFC Common Stock in certain
circumstances.
WITNESSETH:
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and intending to be legally bound, the parties hereby agree as follows:
ARTICLE I. THE MERGER
Subject to the terms and conditions of this Agreement, SFC shall merge
with and into FFC in accordance with the following:
Section 1.1. Merger. At the Effective Time (as defined in Section 9.2
----------- ------
herein) (i) SFC shall merge with and into FFC pursuant to the provisions of the
Pennsylvania Business Corporation Law of 1988 and the New Jersey Business
Corporation Act, whereupon the separate existence of SFC shall cease and FFC
shall be the surviving corporation (hereinafter sometimes referred to as the
"Surviving Corporation"), and (ii) the SFC Common Stock will be converted into
FFC Common Stock pursuant to the provisions of Article II hereof.
Section 1.2. Name. The name of the Surviving Corporation shall be
----------- ----
"▇▇▇▇▇▇ Financial Corporation". The address of the principal office of the
Surviving Corporation will be ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Section 1.3. Articles of Incorporation. The Articles of Incorporation
----------- -------------------------
of the Surviving Corporation shall be the Articles of Incorporation of FFC as in
effect at the Effective Time.
Section 1.4. Bylaws. The Bylaws of the Surviving Corporation shall be
----------- ------
the Bylaws of FFC as in effect at the Effective Time.
Section 1.5 Directors and Officers. The directors and officers of the
----------- ----------------------
Surviving Corporation shall be the directors and officers of FFC in office at
the Effective Time. Each of such directors and officers shall serve until such
time as his successor is duly elected and has qualified.
ARTICLE II CONVERSION OF SHARES AND EXCHANGE OF STOCK CERTIFICATES
Section 2.1. Conversion of Shares. At the Effective Time (as defined
----------- --------------------
in Section 9.2 herein) the shares of SFC 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),
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2.1(c) and 2.1(d) herein, each share of SFC Common Stock issued and outstanding
immediately before the Effective Time, (ii) shares of SFC Common Stock then
owned by FFC or any direct or indirect subsidiary of FFC, (except for trust
account shares or shares acquired in connection with debts previously
contracted), which shall be cancelled, and (iii) shares of SFC Common Stock
owned by SFC or any direct or indirect subsidiary of SFC, (except for trust
account shares or shares acquired in connection with debts previously
contracted), which shall be cancelled) shall, at the Effective Time, be
converted into and become without any action on the part of the holder thereof,
and in exchange therefor FFC shall issue, .78 (such number, as it may be
adjusted under Section 2.1(b) herein, the "Conversion Ratio") shares of FFC
Common Stock and the corresponding number of rights associated with the Rights
Agreement dated June 20, 1989, as amended and restated as of April 27. 1999,
between FFC and ▇▇▇▇▇▇ Bank. Each share of SFC Common Stock to be converted into
FFC Common Stock pursuant to this Section 2.1 shall, by virtue of the Merger and
without any action on the part of the holders thereof, cease to be outstanding,
be canceled and retired, and each holder of share certificates evidencing shares
of SFC Common Stock to be converted into the right to receive FFC Common Stock
pursuant to this Section 2.1 shall thereafter cease to have any rights with
respect to the shares represented thereby, except the right to receive the FFC
Common Stock therefor, without interest thereon, upon the surrender of the share
certificates evidencing the SFC Common Stock in accordance with Section 2.2
hereof.
(b) Antidilution Provision: In the event that FFC shall at any
----------------------
time before the Effective Time: (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
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proportionately adjusted (calculated to four decimal places), so that each SFC
shareholder shall receive at the Effective Time, in exchange for his shares of
SFC Common Stock, the number of shares of FFC Common Stock as would then have
been owned by him if the Effective Time had occurred before the record date of
such event (For example, if FFC were to declare a five percent (5%) stock
dividend after the date of this Agreement and if the record date for that stock
dividend were to occur before the Effective Time, the Conversion Ratio would be
adjusted from .78 shares to .8190 shares).
(c) No Fractional Shares: No fractional shares of FFC Common
--------------------
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
shareholder of SFC 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
--------------------
Closing Market Price shall be the average of the per share closing bid and asked
prices for FFC Common Stock, calculated to two decimal places, for the ten (10)
consecutive trading days during the twenty (20) trading days immediately
preceding the date which is two (2) business days before the Effective Date (as
such term is defined in Section 9.2 herein), as reported on the National Market
System of the National Association of Securities Dealers Automated Quotation
System ("NASDAQ") resulting in the lowest average, the foregoing period of
twenty (20) trading days being hereinafter sometimes referred to as the "Price
Determination Period" (For example, if September 30, 2000 were to be the
Effective Date, then the Price Determination Period would be August 31, 2000 and
September 1, 2, 5, 6, 7, 8, 11, 12, 13, 14, 15, 18, 19, 20, 21, 22, 25, 26 and
27, 2000). In the event that NASDAQ shall fail to report closing bid and asked
prices for FFC Common Stock for any trading day during the Price Determination
Period, the closing bid and asked prices for that day shall be equal to the
average of the closing bid and asked prices as quoted: (i) by ▇. ▇. ▇▇▇▇▇▇▇▇▇ &
Company, Inc. and by ▇▇▇▇, ▇▇▇▇ & 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
SFC.
Section 2.2. Exchange of Stock Certificates. SFC Common Stock
----------- ------------------------------
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
--------------
exchange agent (the "Exchange Agent") to receive SFC 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 FFC
Common Stock pursuant to Section 2.1(c) herein. FFC shall cause the Exchange
Agent on or promptly after the Effective Date, to mail to each former
shareholder of SFC a notice specifying the procedures to be followed in
surrendering such shareholder's SFC Common Stock certificates.
(b) Surrender of Certificates: As promptly as possible after
-------------------------
receipt of the Exchange Agent's notice, each former shareholder of SFC shall
surrender his SFC Common Stock certificates (which may be certificates for
shares of common stock of SCB) to the Exchange Agent;
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provided, that if any former shareholder of SFC shall be unable to surrender his
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SFC 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. Upon receiving a proper
actual or constructive surrender of SFC Common Stock certificates from a former
SFC shareholder, the Exchange Agent shall issue to such shareholder, in exchange
therefor, an FFC Common Stock certificate representing the whole number of
shares of FFC Common Stock into which such shareholder's shares of SFC Common
Stock have been converted in accordance with this Article II, together with a
check in the amount of any cash to which such shareholder 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
--------------------
after the Effective Time to any former shareholder of SFC who has not prior to
the payment date surrendered his SFC Common Stock certificates may, at the
option of FFC, be withheld. Any dividends so withheld shall be paid, without
interest, to such former shareholder of SFC upon proper surrender of his SFC
Common Stock certificates.
(d) Failure to Surrender Certificates: All SFC Common Stock
---------------------------------
certificates must be actually or constructively (as referenced in (b) above)
surrendered to the Exchange Agent within two (2) years after the Effective Date.
In the event that any former shareholder of SFC shall not have properly
surrendered his SFC 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 shareholder of SFC
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 shareholder of SFC, without
interest, upon proper actual or constructive surrender of his SFC 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. Treatment of Outstanding SFC Options.
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(a) Each holder of an option (collectively, "SFC Options") to
purchase shares of SFC Common Stock that (i) is outstanding at the Effective
Time, (ii) has been granted pursuant to the 1994 Amended and Restated Stock
Option Plan, 1991 Non-Qualified Stock Option Plan, as amended, 1996 Incentive
Stock Option Plan and 1997 Incentive Stock Option Plan (collectively, the "SFC
Stock Option Plans") and (iii) would otherwise survive the Effective Time shall
be entitled to receive, in cancellation of such SFC Option, an option to acquire
shares of FFC Common Stock on the terms set forth below (an "FFC Stock Option").
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(b) An FFC Stock Option shall be a stock option to acquire
shares of FFC Common Stock with the following terms: (i) the number of shares of
FFC Common Stock which may be acquired pursuant to such FFC Stock Option shall
be equal to the product of the number of shares of SFC Common Stock covered by
the SFC Option multiplied by the Conversion Ratio, provided that any fractional
share of FFC Common Stock resulting from such multiplication shall be rounded to
the nearest whole share; (ii) the exercise price per share of FFC Common Stock
shall be equal to the exercise price per share of SFC Common Stock of such SFC
Option, divided by the Conversion Ratio, provided that such exercise price shall
be rounded to the nearest whole cent; (iii) the duration and other terms of such
FFC Option shall be identical to the duration and other terms of such SFC
Option, except that all references to SFC shall be deemed to be references to
FFC and its affiliates, where the context so requires and shall remain
exercisable until the stated expiration date of the corresponding SFC Option;
(iv) FFC shall assume such SFC stock option, whether vested or not vested, as
contemplated by Section 424(a) of the Internal Revenue Code of 1986, as amended
(the "Code"); and (v) to the extent SFC Options qualify as incentive stock
options under Section 422 of the Code, the FFC Options exchanged therefor shall
also so qualify. Subject to the foregoing, the SFC Stock Option Plans and all
options or other rights to acquire SFC Common Stock issued thereunder shall
terminate at the Effective Time.
(c) FFC shall not issue or pay for any fractional shares
otherwise issuable upon exercise of a FFC Stock Option. Prior to the Effective
Time, FFC shall take appropriate action to reserve for issuance and, if not
previously registered pursuant to the Securities Act of 1933, as amended (the
"1933 Act"), register the number of shares of FFC Common Stock necessary to
satisfy FFC's obligations with respect to the issuance of FFC Common Stock
pursuant to the exercise of FFC Stock Options and under Section 2.3.
(d) Prior to the Effective Time (to the extent required as
determined by FFC and SFC), FFC shall receive agreements from each holder of a
SFC Option, pursuant to which each such holder agrees to accept such FFC Options
in exchange for the cancellation of such SFC Options, as of the Effective Time.
(e) Schedule 2.3 sets forth a listing of each SFC Option as of
------------
the date of this Agreement (copies of which have been provided to FFC),
including the optionee, date of grant, shares of SFC Common Stock subject to
such Option, the exercise price of such Option, expiration date, classification
as an incentive stock option or a nonqualified stock option, vesting schedule
and any special features thereof.
Section 2.4. Reservation of Shares. FFC agrees that (i) prior to the
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Effective Time 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) at the Effective Time, FFC will issue shares of
FFC Common Stock to the extent set forth in, and in accordance with, this
Agreement.
Section 2.5. Taking Necessary Action. FFC and SFC 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
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to obtain the regulatory approvals required to consummate the Merger. In case at
any time after the Effective Time 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 SFC, the
officers and directors of SFC, at the expense of FFC, shall take all such
necessary action.
Section 2.6. Releases. FFC and SFC agree that all press releases or
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other public communications relating to this Agreement or the transactions
contemplated hereby will require mutual approval by FFC and SFC, 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 obtain such approval.
Section 2.7. FFC Common Stock. Each share of FFC Common Stock that is
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issued and outstanding immediately before the Effective Time shall, on and after
the Effective Time, remain issued and outstanding as one (1) share of FFC Common
Stock, and each holder thereof shall retain his rights therein. The holders of
the shares of FFC Common Stock outstanding immediately prior to the Effective
Time shall, immediately after the Effective Time, continue to hold a majority of
the outstanding shares of FFC Common Stock.
Section 2.8. No Right of Dissent. Pursuant to Section 14A:11-
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1(1)(a)(i)(B) of the New Jersey Business Corporation Act, the shareholders of
SFC shall not be entitled to exercise dissenters' rights
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF SFC
SFC represents and warrants to FFC, as of the date of this Agreement,
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 SFC (its Board of Directors, at a meeting duly called and held, by a vote of
at least 80% of the full Board, (i) determined that the Merger is advisable and
in the best interests of SFC and its shareholders and (ii) directed that the
Agreement be submitted for consideration by its shareholders with the
recommendation of the Board of Directors that the shareholders of SFC approve
this Agreement and the transactions contemplated thereby), and, except for the
approval of this Agreement by its shareholders, SFC 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 SFC and, assuming due authorization, execution and
delivery by FFC, constitute valid and binding obligations of SFC. Upon execution
and delivery of the Warrant Agreement and the Warrant, such documents shall
constitute binding obligations of SFC. 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 Certificate of Incorporation or
Bylaws of SFC, (ii) the Certificate of Incorporation or Bylaws of SCB, (iii) any
statute, rule, regulation, order, decree or directive of any governmental
authority or court applicable to SFC or SCB, subject to the receipt of all
required
-6-
governmental approvals, or (iv) any agreement, contract, memorandum of
understanding, indenture or other instrument to which SFC or SCB is a party or
by which SFC or SCB or any of their properties are bound.
Section 3.2. Organization and Standing. SFC is a business corporation
----------- -------------------------
that is duly organized, validly existing and in good standing under the laws of
the State of New Jersey. SFC is a bank holding company under the BHC Act, and
has full power and lawful authority to own and hold its properties and to carry
on its business as presently conducted. SCB is a banking corporation that is
duly organized, validly existing and in good standing under the laws of the
State of New Jersey. SCB is an insured bank under the provisions of the Federal
Deposit Insurance Act, as amended (the "FDI Act"), and is not a member of the
Federal Reserve System. SCB has full power and lawful authority to own and hold
its properties and to carry on its business as presently conducted. SCI is a
business corporation that is duly organized, validly existing and in good
standing under the laws of the State of New Jersey. SCI has full power and
lawful authority to own and hold its properties and to carry on its business as
presently conducted.
Section 3.3. Subsidiaries. SCB is a wholly-owned direct subsidiary of
----------- ------------
SFC and SCI is a wholly-owned subsidiary of SCB. Except for SCB and SCI (the
"SFC Subsidiaries"), SFC owns no active subsidiaries, directly or indirectly.
Section 3.4. Capitalization. The authorized capital of SFC consists
----------- --------------
exclusively of 10,000,000 shares of SFC Common Stock and 1,000,000 shares of
serial preferred stock, $10.00 par value per share . There are 2,550,994 shares
of SFC Common Stock validly issued, outstanding, fully paid and non-assessable,
and no shares are held as treasury shares. There are no shares of preferred
stock issued. In addition, 308,084 shares of SFC Common Stock are reserved for
issuance upon the exercise of Stock Options granted under SFC's Stock Option
Plans and 625,000 shares of SFC Common Stock will be reserved for issuance upon
exercise of the Warrant. Except for the SFC Options and the Warrant, there are
no outstanding obligations, options or rights of any kind entitling other
persons to acquire shares of SFC Common Stock and there are no outstanding
securities or other instruments of any kind that are convertible into shares of
SFC Common Stock. The authorized capital of SCB consists exclusively of
10,000,000 shares of common stock, par value $2.50 per share (the "SCB Common
Stock"), of which 1,000 shares are validly issued, outstanding and fully-paid
and non-assessable, and no shares are held as treasury shares. All outstanding
shares of SCB Common Stock are owned beneficially and of record by SFC. There
are no outstanding obligations, options or rights of any kind entitling other
persons to acquire shares of SCB Common Stock, and there are no outstanding
securities or instruments of any kind that are convertible into shares of SCB
Common Stock. The authorized capital of SCI consists exclusively of 1,000 shares
of common stock, without par value (the "SCI Common Stock"), of which 100 shares
are validly issued, outstanding and fully-paid, non-assessable, and no shares
are held as treasury shares. All outstanding shares of SCI Common Stock are
owned beneficially and of record by SCB. There are not outstanding obligations,
options or rights of any kind entitling other persons to acquire shares of SCI
Common Stock, and there are no outstanding securities or instruments of any kind
that are convertible into shares of SCI Common Stock. The Common Stock of SCB
and SCI is sometimes collectively referred to herein as the "SFC Subsidiaries
Common Stock".
-7-
Section 3.5. Charter, Bylaws and Minute Books. The copies of the
----------- --------------------------------
Certificate of Incorporation and Bylaws of SFC and the SFC Subsidiaries that
have been delivered to FFC are true, correct and complete. Except as previously
disclosed to FFC in writing, the minute books of SFC and the SFC Subsidiaries
that have been made available to FFC for inspection are true, correct and
complete in all material respects and accurately record the actions taken by the
Boards of Directors and shareholders of SFC and the SFC Subsidiaries at the
meetings documented in such minutes.
Section 3.6. Financial Statements. SFC has delivered to FFC the
----------- --------------------
following financial statements: Statements of Condition at December 31, 1998 and
1997 and Statements of Income, Statements of Shareholders' Equity, and
Consolidated Statements of Cash Flows of SCB for the years ended December 31,
1996, 1997 and 1998, certified by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP, and set forth in the
1998 Annual Report to SCB's shareholders and Consolidated Statements of
Condition of SFC at September 30, 1999 and December 31, 1998 and Consolidated
Statements of Income for the three and nine-month periods ended September 30,
1999 and 1998, Consolidated Statements of Changes in Shareholders' Equity for
the nine-month periods ended September 30, 1999 and 1998 and Consolidated
Statements of Cash Flows for the nine-month periods ended September 30, 1999 and
1998, as filed with the Securities and Exchange Commission (the "SEC") in a
Quarterly Report on Form 10-QSB (the aforementioned Consolidated Statement of
Condition as of September 30, 1999 being hereinafter referred to as the "SFC
Balance Sheet"). Each of the foregoing financial statements fairly present the
consolidated financial condition, assets and liabilities, and results of
operations of SFC and SCB 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 except for the omission of the notes from the financial
statements applicable to any interim period.
Section 3.7. Absence of Undisclosed Liabilities. Except as disclosed
----------- ----------------------------------
in Schedule 3.7, or as reflected, noted or adequately reserved against in the
------------
SFC Balance Sheet, at September 30, 1999, SFC had no material liabilities
(whether accrued, absolute, contingent or otherwise) which were required to be
reflected, noted or reserved against in the SFC Balance Sheet under generally
accepted accounting principles. Except as disclosed in Schedule 3.7, SFC and the
------------
SFC Subsidiaries have not incurred, since September 30, 1999, any such
liability, other than liabilities of the same nature as those set forth in the
SFC 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 SFC's and
the SFC Subsidiaries' customary business practices.
Section 3.8. Absence of Changes. Since September 30, 1999, SFC and the
----------- ------------------
SFC Subsidiaries have each conducted their businesses in the Ordinary Course of
Business and, except as disclosed in Schedule 3.8, neither SFC nor the SFC
------------
Subsidiaries have undergone any changes in its 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 SFC and the SFC Subsidiaries on a consolidated basis.
-8-
Section 3.9. Dividends, Distributions and Stock Purchases. Except as
----------- --------------------------------------------
disclosed in Schedule 3.9, since September 30, 1999, SFC has not declared, set
------------
aside, made or paid any dividend or other distribution in respect of the SFC
Common Stock, or purchased, issued or sold any shares of SFC Common Stock or the
SFC Subsidiaries Common Stock.
Section 3.10. Taxes. SFC and SCB have filed all federal, state,
------------ -----
county, municipal and foreign tax returns, reports and declarations which are
required to be filed by them or either of them as of September 30, 1999. Except
as disclosed in Schedule 3.10: (i) SFC and SCB have paid all taxes, penalties
-------------
and interest 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 SFC nor the SFC
Subsidiaries 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 SFC or SCB for any
year through and including the year ended December 31, 1998. Except as disclosed
in Schedule 3.10, neither SFC nor the SFC Subsidiaries 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 accruals and reserves reflected
-------------
in the SFC Balance Sheet are adequate to cover all taxes (including interest and
penalties, if any, thereon) that are payable or accrued as a result of SFC'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
------------ --------------------------------
Schedule 3.11, SFC and the SFC Subsidiaries have good and marketable title to
-------------
all material consolidated real and personal properties and assets reflected in
the SFC Balance Sheet or acquired subsequent to September 30, 1999 (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 warranties contained in this sentence do not cover
liens or encumbrances that: (i) are reflected in the SFC Balance Sheet or in
Schedule 3.11; (ii) represent 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 use, of the properties and assets subject thereto.
The material structures and other improvements to real estate, furniture,
fixtures and equipment reflected in the SFC Balance Sheet or acquired subsequent
to September 30, 1999: (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 use, of such structures, improvements, furniture, fixtures and
equipment. SFC and the SFC Subsidiaries own or have 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. (a) Each written or oral contract entered
------------ ---------
into by SFC or the SFC Subsidiaries (other than contracts with customers
reasonably entered into by SFC or SCB in the
-9-
Ordinary Course of Business) which involves aggregate payments or receipts in
excess of $75,000 per year, including without limitation every employment
contract, employee benefit plan, agreement, lease, license, indenture, mortgage
and other commitment to which either SFC or the SFC Subsidiaries are a party or
by which SFC or the SFC Subsidiaries or any of their properties may be bound
(collectively referred to herein as "Material Contracts") is identified in
Schedule 3.12. Except as disclosed in Schedule 3.12, all Material Contracts are
------------- -------------
enforceable against SFC or the SFC Subsidiaries, as the case may be and , SFC or
the SFC Subsidiaries 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 and SFC is not aware of any default by a third party under a Material
Contract. Schedule 3.12 identifies all Material 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.
(b) Except for the Warrant Agreement and as set forth in Schedule
--------
3.12, as of the date of this Agreement, neither SFC nor the SFC Subsidiaries is
----
a party to, or bound by, any oral or written:
(i) "material contract" as such term is defined in Item
601(b)(10) of Regulation S-K promulgated by the SEC;
(ii) consulting agreement not terminable on thirty (30) days or
less notice involving the payment of more than $20,000 per annum, in the case of
any such agreement;
(iii) agreement with any officer or other key employee the
benefits of which are contingent, or the terms of which are materially altered,
upon the occurrence of a transaction of the nature contemplated by this
Agreement;
(iv) agreement with respect to any officer providing any term
of employment or compensation guarantee extending for a period longer than one
year or for a payment in excess of $25,000;
(v) agreement or plan, including any stock option plan, stock
appreciation rights plan, employee stock ownership plan, restricted stock plan
or stock purchase plan, any of the benefits of which will be increased, or the
vesting of the benefits of which will be accelerated, by the occurrence of any
of the transactions contemplated by this Agreement or the value of any of the
benefits of which will be calculated on the basis of any of the transactions
contemplated by this Agreement;
(vi) agreement containing covenants that limit its ability to
compete in any line of business or with any person, or that involve any
restriction on the geographic area in which, or method by which, it may carry on
its business (other than as may be required by law or any regulatory agency);
-10-
(vii) agreement, contract or understanding, other than this
Agreement, and the Warrant Agreement, regarding the capital stock of SFC and/or
SCB or committing to dispose of some or all of the capital stock or
substantially all of the assets of SFC and/or SCB; or
(viii) collective bargaining agreement, contract, or other
agreement or understanding with a labor union or labor organization.
(c) Neither SFC nor SCB is in default under or in violation of
any provision of any note, bond, indenture, mortgage, deed of trust, loan
agreement, lease or Material Contract to which it is a party or to which any of
its respective properties or assets is subject.
Section 3.13. Litigation and Governmental Directives. Except as disclosed
------------ --------------------------------------
in Schedule 3.13, (i) there is no litigation, investigation or proceeding
-------------
pending, or to the Knowledge of SFC or the SFC Subsidiaries (as the term is
defined below) threatened, that involves SFC or the SFC Subsidiaries 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 SFC or the SFC Subsidiaries; (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 arbitration
tribunal issued against or with the consent of SFC or the SFC Subsidiaries that
materially and adversely affect the condition (financial or otherwise), assets,
liabilities, business, operations or future prospects of SFC or the SFC
Subsidiaries or that in any manner restrict the right of SFC or the SFC
Subsidiaries to carry on their businesses as presently conducted taken as a
whole; and (iii) neither SFC nor the SFC Subsidiaries are aware of any fact or
condition presently existing that might give rise to any litigation,
investigation or proceeding which, if determined adversely to either SFC or the
SFC Subsidiaries, would materially and adversely affect the consolidated
condition (financial or otherwise), assets, liabilities, business, operations or
future prospects of SFC or the SFC Subsidiaries or would restrict in any manner
the right of SFC or the SFC Subsidiaries to carry on their businesses as
presently conducted taken as a whole. All litigation (except for bankruptcy
proceedings in which SFC or the SFC Subsidiaries have filed proofs of claim) in
which SFC or the SFC Subsidiaries are 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 greater than $50,000 is
identified in Schedule 3.13. In this Agreement, the terms "Knowledge of SFC or
-------------
SCB" and "Knowledge of SFC and the SFC Subsidiaries" shall mean the actual
knowledge of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ or any
member of the Board of Directors of SFC.
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 SFC or the SFC Subsidiaries: (i) SFC
and the SFC 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
-11-
governmental authorizations and approvals necessary for the conduct of the
business of SFC or the SFC Subsidiaries 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 SFC's and
------------ ---------
SFC Subsidiaries' operations (except for title insurance policies), including
without limitation all financial institutions bonds, held by or on behalf of SFC
or the SFC Subsidiaries 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 1, 1993, SCB
------------ ----------------------------
has continuously maintained in full force and effect one or more financial
institutions bonds listed in Schedule 3.16 insuring SCB against acts of
-------------
dishonesty by each of its employees. No claim has been made under any such bond
and SCB is not aware of any fact or condition presently existing which might
form the basis of a claim under any such bond. SCB has received no notice that
its present financial institutions 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 SFC nor
------------ -----------------------------------------
any of the SFC Subsidiaries are a party to or bound by any collective bargaining
agreement. SFC and the SFC Subsidiaries enjoy good working relationships with
their employees, and there are no labor disputes pending, or to the Knowledge of
SFC or SCB threatened, that might materially and adversely affect the condition
(financial or otherwise), assets, liabilities, business or operations of SFC or
the SFC Subsidiaries. Except as disclosed in Schedule 3.17, neither SFC nor the
-------------
SFC Subsidiaries have any employment contract, severance agreement, deferred
compensation agreement, consulting agreement or similar obligation (including
the amendments referred to in Section 7.1(g), an "Employment Obligation") with
any director, officer, employee, agent or consultant. For the purposes of this
Agreement, Messrs. Halpin, Marcmann, ▇▇▇▇▇▇ and Poolas shall be referred to
herein as the "Contract Employees.". Except as disclosed in Schedule 3.17, as of
-------------
the Effective Time (as defined in Section 9.2 herein), neither SFC nor the SFC
Subsidiary 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 SFC or the SFC Subsidiaries are a party or by
which SFC or the SFC Subsidiaries are bound, including without limitation all
pension, retirement, deferred compensation, savings, 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 (collectively the
"SFC Benefit Plans"), but not including the Employment Obligations described in
Section 3.17, are identified in Schedule 3.18. Each of the SFC Benefit Plans
-------------
which is an "employee pension benefit plan" as defined in Section 3(2) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"; each such
Plan being herein called an "SFC Pension Plan") is exempt from tax under
Sections 401 and 501 of the Code, has been maintained and operated in material
compliance with all applicable provisions of the Code and ERISA. No "prohibited
transaction" (as such term is defined in Section 4975 of the
-12-
Code or in ERISA) and not otherwise exempt under ERISA or the Code has occurred
in respect of the SFC Pension Plans. There have been no material breaches of
fiduciary duty by any fiduciary under or with respect to the SFC Pension Plans
or any other SFC Benefit Plan which is an employee welfare benefit plan as
defined in ERISA, and no claim is pending or, to the Knowledge of SFC,
threatened with respect to any SFC Benefit Plan other than claims for benefits
made in the Ordinary Course of Business. Neither SFC nor the SFC Subsidiaries
have incurred any material penalty imposed by the Code or by ERISA with respect
to the SFC Pension Plans or any other SFC Benefit Plan. There has not been any
audit of any SFC Benefit Plan by the Department of Labor or the IRS.
Section 3.19. Related Party Transactions. Except as disclosed in Schedule
------------ -------------------------- --------
3.19, neither SFC nor any of the SFC Subsidiaries have 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, 1998) of SFC or any of
the SFC Subsidiaries; (ii) any shareholder owning five percent (5%) or more of
the outstanding SFC Common Stock; and (iii) any "associate" (as defined in Rule
405 under the ▇▇▇▇ ▇▇▇) 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
------------ --------- -------------
SFC nor any of the SFC Subsidiaries have paid or become obligated to pay any fee
or commission of any kind whatsoever to any broker, finder, financial 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 SFC, the SFC Subsidiaries, SFC Common Stock, the SFC
Subsidiaries' Common Stock, and the involvement of SFC and the SFC Subsidiaries
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 SFC or the SFC Subsidiaries 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.
Section 3.22. Environmental Matters. Except as disclosed in Schedule
------------ --------------------- --------
3.22, or as reflected, noted or adequately reserved against in the SFC Balance
----
Sheet, neither SFC nor any of the SFC Subsidiaries have any environmental
contaminant, pollutant, toxic or hazardous waste or other similar substance has
been generated, used, stored, 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 SFC or any of the SFC Subsidiaries and
which is required to be reflected, noted or adequately reserved against
-13-
in SFC's consolidated financial statements under generally accepted accounting
principles. In particular, without limiting the generality of the foregoing
sentence, except as disclosed in Schedule 3.22, neither SFC nor any of the SFC
-------------
Subsidiaries have: (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 SFC or any of the SFC Subsidiaries; (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 SFC or any of the SFC Subsidiaries; 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 SFC or any of the SFC Subsidiaries.
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
shareholders of SFC and at all times subsequent to such mailing, up to and
including the Effective Time, the Proxy Statement/Prospectus (including any pre-
and post-effective amendments and supplements thereto), with respect to all
information relating to SFC, the SFC Subsidiaries, SFC Common Stock, the SFC
Subsidiaries Common Stock and all actions taken and statements made by SFC and
the SFC Subsidiaries in connection with the transactions contemplated herein
(except for information provided by FFC to SFC or the SFC Subsidiaries) will:
(i) comply in all material respects with applicable provisions of the 1933 Act,
and the Securities Exchange Act of 1934, as amended (the "1934 Act"), and the
applicable rules and regulations of the SEC 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 by SFC or SCB with
the SEC or the Federal Deposit Insurance Corporation (the "FDIC"), as
applicable, 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 made therein, in light of the circumstances
under which they were made, not misleading.
Section 3.25. Reports. SFC and SCB have filed all material reports,
------------ -------
registrations and statements that are required to be filed with the Federal
Reserve Board (the "FRB"), the FDIC, the New Jersey Department of Banking and
Insurance (the "Department") and any other applicable federal, state or local
governmental or regulatory authorities and such reports, registrations and
-14-
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 deemed
to be a breach of the foregoing representation unless such failure has or may
have a material adverse impact on SFC and the SFC Subsidiaries on a consolidated
basis. SFC 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,
2000 through the date of this Agreement. SFC is required to file reports with
the SEC pursuant to Section 12 of the 1934 Act, and SFC and SCB have made all
appropriate filings under the 1934 Act and the rules and regulations promulgated
thereunder. The SFC Common Stock is traded on the NASDAQ Small Cap Market under
the symbol "SKCB."
Section 3.26. Loan Portfolio of SCB.
------------ ---------------------
(a) hereto as Schedule 3.26 is a list of (i) all
-------------
outstanding commercial relationships, i.e. commercial loans, commercial loan
commitments and commercial letters of credit, of SCB (ii) all loans of SCB
classified by SCB or any regulatory authority as "Monitor," "Substandard,"
"Doubtful" or "Loss," (iii) all commercial and mortgage loans of SCB classified
as "non-accrual," and (iv) all commercial loans of SCB classified as "in
substance foreclosed."
(b) SCB has adequately reserved for or charged off loans in
accordance with applicable regulatory requirements and SCB'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 SFC and the SFC Subsidiaries for investment,
showing the holder, 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
September 30, 1999. These securities are free and clear of all liens, pledges
and encumbrances, except as shown on Schedule 3.27.
-------------
Section 3.28. Regulatory Examinations.
------------ -----------------------
(a) Except for normal examinations conducted by a
regulatory agency in the Ordinary Course of Business, no regulatory agency has
initiated any proceeding or investigation into the business or operations of SFC
or any of the SFC Subsidiaries. Neither SFC nor any of the SFC Subsidiaries have
received any objection from any regulatory agency to SFC's or any of the SFC
Subsidiaries' response to any violation, criticism or exception with respect to
any report or statement relating to any examinations of SFC and any of the SFC
Subsidiaries which would have a materially adverse effect on SFC and any of the
SFC Subsidiaries on a consolidated basis.
(b) Neither SFC nor any of the SFC Subsidiaries are
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
-15-
thereunder, or otherwise which would have a materially adverse effect on SFC and
any of the SFC Subsidiaries on a consolidated basis.
Section 3.29. Beneficial Ownership of FFC Common Stock. SFC and the SFC
------------ ----------------------------------------
Subsidiaries do not, and prior to the Effective Time, SFC and the SFC
Subsidiaries will not, own beneficially (within the meaning of SEC Rule 13-d-
3(d)(1)) more than five percent (5%) of the outstanding shares of FFC Common
Stock.
Section 3.30. Fairness Opinion. SFC's Board of Directors has received a
------------ ----------------
written opinion, a copy of which has been furnished to FFC, to be confirmed in
writing prior to the publication of the Proxy Statement/Prospectus (a copy of
such confirming written opinion being provided simultaneously to FFC at the time
of receipt), to the effect that the Exchange Ratio, at the time of execution of
this Agreement, is fair to SFC's shareholders from a financial point of view.
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF FFC
FFC represents and warrants to SFC, 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 SFC, 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 BHC Act and has full power and lawful authority to own and hold its
properties and to carry on its present business.
Section 4.3. Capitalization. The authorized capital of FFC consists
----------- --------------
exclusively of 400,000,000 shares of FFC Common Stock and 10,000,000 shares of
preferred stock without par value (the "FFC Preferred Stock"). As of December
31, 1999, there were 68,459,473 shares of FFC Common Stock validly issued,
outstanding, fully paid and non-assessable and 857,136 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 December 31, 1999, 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)
1,477,914 shares of
-16-
FFC Common Stock were 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 were outstanding 68,499,473 Rights representing the
right under certain circumstances to purchase shares of FFC Common Stock
pursuant to the terms of a Shareholder Rights Agreement, dated June 20, 1989, as
amended and restated as of April 27, 1999, entered into between FFC and ▇▇▇▇▇▇
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 SFC 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 SFC the
----------- --------------------
following financial statements: Consolidated Balance Sheets at December 31, 1998
and 1997 and Consolidated Statements of Income, Consolidated Statements of
Shareholders' Equity, and Consolidated Statements of Cash Flows for the years
ended December 31, 1998, 1997 and 1996, certified by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and set
forth in the Annual Report to the shareholders of FFC for the year ended
December 31, 1998 and Consolidated Balance Sheets as of September 30, 1999,
Consolidated Statements of Income for the three-month and nine-month periods
ended September 30, 1999, and Consolidated Statements of Cash Flows for the
nine-months ended September 30, 1999 and 1998, as filed with the SEC in a
Quarterly Report on Form 10-Q (the Consolidated Balance Sheet as of September
30, 1999 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.
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 September 30, 1999 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 September 30, 1999 FFC has not incurred any such liability
------------
other than liabilities of the
-17-
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 September 30, 1999 there has not
----------- ------------------
been any material and adverse change in the condition (financial or otherwise),
assets, liabilities, business, operations or future prospects of FFC and the FFC
Subsidiaries on a consolidated basis.
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 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 SFC 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 SFC 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
-18-
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 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-sharing
------------ -----------------------
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
employee benefit plan to which FFC or any of its subsidiaries are a party or by
which FFC or any of its subsidiaries are bound (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,
and no claim is pending or threatened with respect to any FCC Benefit Plan other
than claims for benefits made in the Ordinary Course of Business. Neither FCC or
any of its subsidiaries have 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. There has not
been any audit of any FCC Benefit Plan by the Department of Labor, the IRS or
the PBGC since 1990.
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 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 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.
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Section 4.16. Proxy Statement/Prospectus. At the time the Proxy
------------ --------------------------
Statement/Prospectus (as defined in Section 6.1(b)) is mailed to the
shareholders of SFC and at all times subsequent to such mailing, up to and
including the Effective Time, the Proxy Statement/Prospectus (including any pre-
and post-effective amendments and supplements thereto), with respect to all
information relating to FFC, FFC Common Stock, and actions taken and statements
made by FFC in connection with the transactions contemplated herein (other than
information provided by SFC or SCB 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. Regulatory Approvals. FFC is not aware of any reason why
------------ --------------------
any of the required regulatory approvals to be obtained in connection with the
Merger should not be granted by such regulatory authorities or why such
regulatory approvals should be conditioned on any requirement which would be a
significant impediment to FFC's ability to carry on its business.
Section 4.18. No Finder. FFC has not 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 4.19. Taxes. FFC has filed, or has received extension for filing,
------------ -----
all federal, state, county, municipal and foreign tax returns, reports and
declarations which are required to be filed by it as of September 30, 1999. To
the best of FFC's knowledge, (i) FFC has paid all taxes, penalties and interest
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, and (ii) FFC has not received any notice of
deficiency or assessment of additional taxes. To the best of FFC's knowledge,
the accruals and reserves reflected in the FFC Balance Sheet are adequate to
cover all material taxes (including interest and penalties, if any, thereon)
that are payable or accrued as a result of FFC's consolidated operations for all
periods prior to the date of such Balance Sheet.
Section 4.20. Title to and Condition of Assets. FFC has good and
------------ --------------------------------
marketable title to all material consolidated real and personal properties and
assets reflected in the FFC Balance Sheet or acquired subsequent to September
30, 1999 (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 warranties contained in this
-------- -------
sentence to not cover liens or encumbrances that: (i) are reflected in the FFC
Balance Sheet; (ii) represent 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.
-20-
Section 4.21. Contracts. To the best of FFC's knowledge, all FFC Material
------------ ---------
Contracts are enforceable against FFC, and FFC has in all material respects
performed all obligations required to be performed by it to date and is not in
default in any material respect. "FFC Material Contracts" shall be defined as
each written or oral contract entered into by FFC (other than contracts with
customers reasonably entered into by FFC 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
either FFC or FFC Subsidiaries are a party or by which FFC or any of the FFC
Subsidiaries or any of their properties may be bound.
Section 4.22. Insurance. To the best of FFC's knowledge, all policies of
------------ ---------
insurance covering operations of FFC which are, in the aggregate, material
(except for title insurance policies), including without limitation all
financial institutions bonds, held by or on behalf of FFC are in full force and
effect, and no notices of cancellation have been received in connection
therewith.
Section 4.23. Reports. FFC has filed all material reports, registrations
------------ -------
and statements that are required to be filed with the FRB, the FDIC, the
Pennsylvania 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 4.23 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 deemed
to be a breach of the foregoing representation unless such failure has or may
have a material adverse impact on FFC and the FFC Subsidiaries on a consolidated
basis. FFC has furnished SFC with, or made available to SFC, copies of all such
filings made in the last three fiscal years and in the period from January 1,
2000 to the date of this Agreement. FFC is required to file reports with the SEC
pursuant to Section 12 of the 1934 Act, and FFC has made all appropriate filings
under the 1934 Act and the rules and regulations promulgated thereunder. The FFC
Common Stock is traded on NASDAQ under the symbol "FULT."
ARTICLE V. COVENANTS OF SFC
From the date of this Agreement until the Effective Time, SFC covenants
and agrees to do, and shall cause the SFC Subsidiaries 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 or delayed, SFC
and the SFC Subsidiaries 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 SFC or any of the
SFC Subsidiaries; (iii) maintain all of their structures, equipment and other
real property and tangible personal property in good repair, order and
-21-
condition, except for ordinary wear and tear and damage by unavoidable casualty;
(iv) to the extent consistent with prudent business judgment, use all reasonable
efforts to preserve or collect all material claims and causes of action
belonging to SFC or any of the SFC Subsidiaries; (v) to the extent consistent
with prudent business judgment, keep in full force and effect all insurance
policies now carried by SFC or any of the SFC Subsidiaries; (vi) to the extent
consistent with prudent business judgment, perform in all material respects each
of their obligations under all Material Contracts (as defined in Section 3.12
herein) to which SFC or any of the SFC Subsidiaries are a party or by which any
of them may be bound or which relate to or affect their 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 SFC or any of the SFC Subsidiaries and to
the conduct of their businesses; (ix) not amend SFC's or any of the SFC
Subsidiaries' 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 for the establishment by SCB of a new branch office in Roxbury, New
Jersey, and the capital expenditure of approximately $800,000 in connection
therewith, in accordance with the information related thereto provided to FFC
prior to the date of this Agreement, not make any material acquisition or
disposition of any properties or assets (except for acquisitions or dispositions
of properties or assets which do not exceed, in any case, $75,000), or subject
any of their properties or assets to any material lien, claim, charge, or
encumbrance of any kind whatsoever; (xii) not knowingly take or permit to be
taken any action which would constitute or cause a material breach of any
representation, warranty or covenant set forth in this Agreement as of or
subsequent to the date of this Agreement or as of the Effective Date; (xiii)
except as permitted in Section 5.10 herein, not declare, set aside or pay any
dividend or make any other distribution in respect of SFC Common Stock; (xiv)
not authorize, purchase (other than open market purchases to obtain SFC Common
Stock for distribution pursuant to SFC's dividend reinvestment plan), redeem,
issue (except upon the exercise of outstanding options under the SFC Stock
Option Plans) or sell (or grant options or rights to purchase or sell) any
shares of SFC Common Stock or any other equity or debt securities of SFC (other
than the distribution, under SFC's dividend reinvestment plan, of shares
acquired in open market purchases, or the Warrant or the SFC Common Stock
issuable under the Warrant); (xv) not increase the rate of compensation of, pay
a bonus or severance compensation to, establish or amend any SFC Benefit Plan,
except as required by law (as defined in Section 3.18 herein) for, or enter into
or amend any Employment Obligation (as defined in Section 3.17 herein) with
(except as contemplated by Section 7.1(g)), any officer, director, employee or
consultant of SFC or any of the SFC Subsidiaries, except that SFC and the SFC
Subsidiaries 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, provided that SFC and the SFC Subsidiaries shall be
permitted to pay a pro rated portion of its customary bonuses to its employees
prior to the Effective Date to the extent such bonuses are consistent with the
budget for SFC and the SFC Subsidiaries provided to FFC prior to the date of
this Agreement and are consistent, in magnitude and otherwise, with the past
practices of SFC and the SFC Subsidiaries; (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
-------------
-22-
reserves and the loan write-offs, writedowns and other adjustments that
reasonably should be made by SCB during the fiscal year ending December 31,
2000, SFC and the SFC Subsidiaries shall consult with FFC and shall act in
accordance with generally accepted accounting principles and SFC's and the SFC
Subsidiaries' 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 SFC and the SFC Subsidiaries except in the Ordinary Course of Business
consistent with past practice (provided that FFC shall not unreasonably withhold
or delay its consent to such transactions); (xx) except as permitted by (xi)
above, not make any capital expenditures other than in the Ordinary Course of
Business or as necessary to maintain existing assets in good repair; (xxi)
except as permitted by (xi) above, 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; or (xxiii) 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 as a tax-free
reorganization under Section 368 of the Code.
Section 5.2. Best Efforts. SFC and the SFC Subsidiaries shall cooperate
----------- ------------
with FFC and shall use their 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 the
transactions contemplated by this Agreement, including the Merger. In
particular, without limiting the generality of the foregoing sentence, SFC and
the SFC Subsidiaries 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) subject to Section 5.7 herein, call a meeting
of its shareholders 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
shareholders at that meeting, including recommending the approval of this
Agreement by SFC's shareholders; and (iii) cooperate with FFC in making SFC's
and the SFC Subsidiaries' employees reasonably available for training by FFC at
SFC's and the SFC Subsidiaries' facilities prior to the Effective Time, to the
extent that such training is deemed reasonably necessary by FFC to ensure that
SFC's and the SFC Subsidiaries' facilities will be properly operated in
accordance with FFC's policies after the Merger.
Section 5.3. Access to Properties and Records. SFC and the SFC
----------- --------------------------------
Subsidiaries 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 SFC and the SFC Subsidiaries as FFC may reasonably request, subject
to the obligation of FFC and
-23-
its authorized employees and representatives to maintain the confidentiality of
all nonpublic information concerning SFC and the SFC Subsidiaries 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 Time, SFC and the SFC Subsidiaries
shall promptly prepare and deliver to FFC as soon as practicable all internal
monthly and quarterly financial statements, all quarterly and annual reports to
shareholders and all reports to regulatory authorities prepared by or for either
SFC or any of the SFC Subsidiaries (including, without limitation, delivery of
SFC's audited financial statements for 1999 as soon as they are available)
(which additional financial statements and reports are hereinafter collectively
referred to as the "Additional SFC Financial Statements"). The representations
and warranties set forth in Sections 3.6, 3.7 and 3.8 shall apply to the
Additional SFC Financial Statements.
Section 5.5. Update Schedules. SFC or any of the SFC Subsidiaries shall
----------- ----------------
promptly disclose to FFC in writing any material change, addition, deletion or
other modification to the information set forth in its Schedules hereto.
Section 5.6. Notice. SFC or any of the SFC Subsidiaries 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
prospects of SFC or any of the SFC Subsidiaries or restrict in any manner their
ability to carry on their respective businesses as presently conducted.
Section 5.7. No Solicitation.
----------- ---------------
(a) SFC and the SFC Subsidiaries shall not, and shall not authorize
or permit any of their officers, directors or employees or any investment
banker, financial advisor or attorney to initiate or encourage (including by way
of furnishing non-public information), or take any other action to facilitate,
any inquiries or the making of any proposal that constitutes, or may reasonably
be expected to lead to, an Acquisition Proposal, provided, however, that if, at
any time the Board of Directors of SFC determines in good faith, based on the
written advice of outside counsel, that failure to do so would be reasonably
likely to constitute a breach of its fiduciary duties to SFC's shareholders
under applicable law, SFC, in response to a written Acquisition Proposal that
(i) was unsolicited or that did not otherwise result from a breach of this
Section, and (ii) is reasonably likely to lead to a Superior Proposal, may (x)
furnish non-public information with respect to SFC or the SFC Subsidiaries to
the person who made such Acquisition Proposal pursuant to a customary
confidentiality agreement and (y) participate in negotiations regarding such
Acquisition Proposal. Without limiting the foregoing, it is understood that any
violation of the restrictions set forth in the preceding sentence by any
director or officer of SFC or any of the SFC Subsidiaries or any investment
banker, financial advisor, attorney, accountant, or other representative of SFC
or any of the SFC Subsidiaries, whether or not acting on behalf of SFC or any of
its subsidiaries, shall be deemed to be a breach of this Section by SFC.
-24-
(b) The Board of Directors of SFC shall not (1) withdraw or modify,
or propose to withdraw or modify, in a manner adverse to FFC, its approval or
recommendation of this Agreement or the Merger unless there is an Acquisition
Proposal outstanding, (2) approve or recommend, or propose to approve or
recommend, an Acquisition Proposal or (3) cause SFC to enter into any letter of
intent, agreement in principle, acquisition agreement or other agreement with
respect to an Acquisition Proposal unless (x) the Board of Directors of SFC
shall have determined in good faith, based on the written advice of outside
counsel, that failure to do so would be reasonably likely to constitute a breach
of its fiduciary duties to SFC's shareholders under applicable law and (y) the
applicable Acquisition Proposal is a Superior Proposal. In the event the Board
of Directors of SFC takes any of the actions set forth in clauses (1), (2)
and/or (3) in compliance with the standards in (x) and (y) above, such action
shall allow termination by FFC under Section 8.1(b)(iii) herein. In the event
the Board of Directors of SFC takes any of the actions set forth in clauses (1),
(2) and/or (3) above without compliance with the standards in (x) and (y) above,
such action shall constitute a breach allowing termination by FFC under Section
8.1(b)(i) herein.
(c) Nothing contained in this Section shall prohibit SFC from at
any time taking and disclosing to its shareholders a position contemplated by
Rule 14e-2(a) promulgated under the Securities Exchange Act of 1934, as amended,
provided, however, that neither SFC nor its Board of Directors shall, except as
permitted by paragraph (b) of this section, propose to approve or recommend, an
Acquisition Proposal.
(d) SFC shall promptly (but in any event within one day) advise FFC
orally and in writing of any Acquisition Proposal or any inquiry regarding the
making of an Acquisition Proposal including any request for information, the
material terms and conditions of such request, Acquisition Proposal or inquiry
and the identity of the person making such request, Acquisition Proposal or
inquiry. SFC will, to the extent reasonably practicable, keep FFC fully informed
of the status and details (including amendments or proposed amendments) of any
such request, Acquisition Proposal or inquiry.
For the purpose of this Section 5.7:
(i) "Acquisition Proposal" shall mean a written proposal or
written offer (other than by another party hereto) for a tender or exchange
offer for securities of SFC or any of the SFC Subsidiaries, or a merger,
consolidation or other business combination involving an acquisition of SFC or
any of the SFC Subsidiaries or any proposal to acquire in any manner a
substantial equity interest in or a substantial portion of the assets of SFC or
any of the SFC Subsidiaries.
(ii) A "Superior Proposal" shall be an Acquisition Proposal
that the Board of Directors of SFC believes in good faith (after consultation
with its financial advisor) is reasonably capable of being completed, taking
into account all relevant legal, financial, regulatory and other aspects of the
Acquisition Proposal and the source of its financing, on the terms proposed and,
believes in good faith (after consultation with its financial advisor and after
taking into account the strategic benefits anticipated to be derived from the
Merger and the long-term prospects of SFC
-25-
and the SFC Subsidiaries as a combined company), would, if consummated, result
in a transaction more favorable to the shareholders of SFC from a financial
point of view, than the transactions contemplated by this Agreement and believes
in good faith (after consultation with its financial advisor) that the person
making such Acquisition Proposal has, or is reasonably likely to have or obtain,
any necessary funds or customary commitments to provide any funds necessary to
consummate such Acquisition Proposal.
Section 5.8. Affiliate Letters. SFC shall deliver or cause to be delivered
----------- -----------------
to FFC, at or before the Closing, a letter from each of the officers and
directors of SFC (and shall use its best efforts to obtain and deliver such a
letter from each shareholder of SFC) 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 ▇▇▇▇ ▇▇▇) of SFC, in form and substance satisfactory to FFC, under the
terms of which each such officer, director or shareholder 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. SFC and the SFC Subsidiaries shall not, and shall use
--------------------
their best efforts to ensure that their executive officers and directors do not,
and shall use their best efforts to ensure that each shareholder of SFC who may
be deemed an "affiliate" (as defined in SEC Rules 145 and 405) of SFC 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. Dividends. SFC shall not declare or pay a cash dividend on
------------ ---------
the SFC Common Stock; provided, however, that SFC may declare and pay a dividend
of up to $.03 per share of SFC Common Stock (and up to $.04 per share of SFC
Common Stock if SFC and the SFC Subsidiaries results of operations are
consistent with the budget for SFC and the SFC Subsidiaries provided to FFC
prior to the date of this Agreement) on (i) ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇) June 30, 2000,
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, 2000; (iii) September 30, 2000, 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,
2000; and (iv) December 31, 2000, 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 January 15, 2001 (it
being the intent of FFC and SFC that SFC be permitted to pay a dividend on the
SFC Common Stock on the dates indicated in subsections (ii), (iii) and (iv)
above only if the shareholders of SFC, 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).
-26-
ARTICLE VI. COVENANTS OF FFC
From the date of this Agreement until the Effective Time, 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 SFC and the SFC
----------- ------------
Subsidiaries 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 the
transactions contemplated by this Agreement, including the Merger. 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)
SFC and its counsel and accountants, all required applications for regulatory
approval of the transactions contemplated by this Agreement, including without
limitation applications for approval under the BHC Act, the Pennsylvania Banking
Code of 1965, as amended, the New Jersey Banking Act of 1948, as amended, and
the Federal Deposit Insurance Act, as amended.
(b) Registration Statement: FFC shall promptly prepare, with the
----------------------
cooperation and assistance of (and after review by) SFC and its counsel and
accountants, and file with the SEC a registration statement (the "Registration
Statement") for the purpose of registering the shares of FFC Common Stock to be
issued to shareholders of SFC under the provisions of this Agreement 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's Common
Stock to be issued to the shareholders of SFC, and the soliciting of the proxies
of SFC's shareholders in favor of the Merger, under the provisions of this
Agreement. FFC may rely upon all information provided to it by SFC and SCB 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 Statement/Prospectus, if such statement is made by
FFC in reliance upon any information provided to FFC by SFC or the SFC
Subsidiaries or by any of their officers, agents or representatives.
(c) State Securities Laws: FFC, with the cooperation and
---------------------
assistance of SFC 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
-------------
SFC 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.
(e) Adopt Amendments: FFC shall not adopt any amendments to its
----------------
charter or bylaws or other organizational documents that would alter the terms
of FFC's Common Stock or could reasonably be expected to have a material adverse
effect on the ability of FFC to perform its obligations under this Agreement.
-27-
Section 6.2. Access to Properties and Records. FFC shall give to SFC and
----------- --------------------------------
to its authorized employees and representatives (including without limitation
SFC'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 SFC may reasonably
request, subject to the obligation of SFC and its authorized employees and
representatives to maintain the confidentiality of all nonpublic information
concerning FFC obtained by reason of such access.
Section 6.3. Subsequent Financial Statements. Between the date of signing
----------- -------------------------------
of this Agreement and the Effective Time, FFC shall promptly prepare and deliver
to SFC 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 4.6, 4.7 and 4.8 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 Schedules. FFC shall promptly disclose to SFC in
----------- -----------------
writing any change, addition, deletion or other modification to the information
set forth in its Schedules to this Agreement.
Section 6.5. Notice. FFC shall promptly notify SFC 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 SFC 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 Time, (i) FFC shall cause each of
the SFC Subsidiaries or their respective successors: (A) to satisfy each of the
Employment Obligations (as defined, and amended as set forth, in Section 3.17
herein), (B) use their best efforts to retain each present full-time employee of
SCB at such employee's current position (or, if offered to, and accepted by, an
employee, a position for which the employee is qualified with FFC or an FFC
subsidiary bank at a salary commensurate with the position), (C) pay
compensation to each person who was employed as of the Effective Time and who
continues to be employed by SFC on and after the Effective Time, that is at
least equal to the aggregate compensation that such person was receiving from
SFC or the SFC Subsidiaries prior to the Effective Time (unless there is a
material change in the duties and responsibilities of such employee).(ii) in the
event that FFC causes the SFC Subsidiaries or their successors to continue to
employ officers or employees of SFC and the SFC Subsidiaries as of the Effective
Time, the SFC Subsidiaries or their successors shall employ such persons on the
Effective Time who are not Contract Employees (as that term is defined in
Section 3.17 herein) will be employed as "at will" employees, (iii) officers and
employees of SFC and/or the SFC Subsidiaries who continue employment with SFC
and/or the SFC Subsidiaries or their
-28-
successors after the Effective Time and who are Contract Employees (as that term
is defined in Section 3.17 herein) will be employed pursuant to the terms and
conditions of their respective Employment Obligations, and (iv) in the event the
SFC Subsidiaries or their successors do not employ, or terminate the employment
(other than as a result of unsatisfactory performance of their respective
duties) of any officers or employees of SFC or the SFC Subsidiaries as of the
Effective Time who are not Contract Employees, FFC shall cause the SFC
Subsidiaries or their successors to pay severance benefits to such employee as
follows: (A) in the event employment is terminated on or prior to the date which
is one year after the Effective Date, one week's salary plus an additional one
week's salary for each year of service with SFC or the SFC Subsidiaries; or (B)
in the event employment is terminated thereafter, in accordance with the then
existing severance policy of SCB or its successor.
(b) On and after the Effective Time, (i) FFC shall cause the SFC
Subsidiaries or their successors to satisfy the SFC Subsidiaries' obligations
under the SFC Benefit Plans; (ii) for a period of at least three (3) years after
the Effective Date, FFC shall cause the SFC Subsidiaries or their successors to
provide employee benefits to each such person who is an employee, on the
Effective Time, that are substantially equivalent in the aggregate to the
benefits under the SFC Benefit Plans prior to the Effective Time. For vesting
and eligibility purposes for employee benefits under each SFC Benefit Plan
and/or any employee benefit plan established by FFC after the Effective Date,
employees and/or directors, former employees and directors, if applicable, of
the SFC Subsidiaries shall receive credit for years of service with the SFC
Subsidiaries; and (iii) FFC may discontinue and terminate (A) the SCB Benefit
Plans (subject to the provisions of Section 6.8(e) herein) and (B) the SFC Stock
Option Plans subject to Section 2.3.
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 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 ▇▇▇▇ ▇▇▇) 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 Continuation of SCB's Structure, Name and Directors.
----------- ---------------------------------------------------
(a) For a period of three (3) years after the Effective Date,
FFC shall (subject to the right of FFC and the SCB Continuing Directors to
terminate such obligations under this Section 6.8(a) under subsections (c) and
(d) below) (i) preserve the business structure of SCB as a New Jersey bank; (ii)
preserve the present name of SCB; and (iii) continue in office the present
directors of SCB who indicate their desire to serve (the "SCB Continuing
Directors"), provided, that (A) for such three year period, each non-employee
--------
SCB Continuing Director shall continue to receive director's fees from SCB on
the same basis as prior to the Effective Date and shall continue to receive such
other incidental benefits as he or she was receiving from SCB prior to the
Effective
-29-
Date (the current fees and benefits being set forth on Schedule 6.8 and to
-------------------
remain unchanged through the Effective Date, such benefits to include existing
------------------------------------------------------------------------------
health insurance coverage for SFC's Chairman of the Board as of the date of this
--------------------------------------------------------------------------------
Agreement (the "Current Chairman") provided that the applicable plan allows such
--------------------------------------------------------------------------------
continued coverage and the Chairman pays the cost of such coverage), provided
-------------------------------------------------------------------
that, in the event an individual SCB Continuing Director ceases to act as a
director or as Chairman of SCB's Board of Directors or any committee thereof,
the foregoing obligation to maintain existing fees and benefits shall not apply
to successors (including other SCB Continuing Directors in the cases of
chairmanships) in such positions and (B) after such three-year period, each SCB
Continuing Director shall be subject to FFC's mandatory retirement rules for
directors.
(b) For a period of three (3) years after the Effective Date
(subject to the right of FFC and the SCB Continuing Directors to terminate such
obligations under this Section 6.8(b) under subsections (c) and (d) below), (i)
the Chairman of the Board of SCB shall be the Current Chairman or, if for any
reason he shall cease to serve, such member of the Board of Directors of SCB as
shall be elected by the Board of Directors of SCB (provided that FFC shall
consent to such successor (such consent not to be unreasonably withheld) and the
compensation arrangements with the Current Chairman shall not apply to such
successor), and (ii) the Board of Directors of SCB (or any committee thereof
appointed by the Board of Directors of SCB) shall have the exclusive right to
nominate persons for election to the Board of Directors of SCB (provided that
FFC shall consent to such directors (such consent not to be unreasonably
withheld)).
(c) Subject to subsection (e) below, FFC shall have the right to
terminate its obligations under subsections (a) and (b) of this Section 6.8 as a
result of (i) regulatory considerations, (ii) safe and sound banking practices,
(iii) the exercise of their fiduciary duties by FFC's directors; or (iv) the
direct or indirect acquisition by FFC of a financial institution which is larger
than SCB (in terms of asset size) with a location or locations in (A) any of the
counties in which SCB currently maintains offices or (B) any other county which
is contiguous to any counties referred to in (A).
(d) Notwithstanding anything herein to the contrary, the SCB
Continuing Directors, in their exercise of their fiduciary duty as to the best
interests of SCB and FFC, may, by a majority vote of such directors, modify or
waive any or all of the foregoing provisions in subsection (a) of this Section
6.8.
(e) In the case of termination of its obligations pursuant to
paragraph (c)(iv) above, FFC shall cause SCB to continue to make the payments
under Section 6.8(a) herein which would otherwise be made to the Current
Chairman for the three year period after the Effective Date.
Section 6.9 Insurance. For three years after the Effective Date, FFC
---------
shall (and SCB shall cooperate in these efforts) obtain and maintain (a) "tail"
coverage relating to SFC's existing directors and officers liability insurance
policy (provided that such insurance shall be in such amount and carry such
premium as may be reasonably acceptable to FFC (not to exceed the current
premium for SFC's existing directors and officers liability insurance policy)
and that FFC may substitute therefor policies of at least the same coverage and
amounts containing terms and conditions which are substantially no less
advantageous) with respect to claims arising from facts or
-30-
circumstances which occur prior to the Effective Date (other than relating to
this Agreement and the transactions contemplated hereby) and covering persons
who are covered by such insurance immediately prior to the Effective Date and
(b) provide the SCB Continuing Directors with coverage under a directors and
officers liability policy or policies similar to the coverage provided to
directors of other subsidiaries of FFC.
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) Shareholder Approval: This Agreement shall have been duly
---------------------
authorized, approved and adopted by the shareholders of SFC.
(b) Regulatory Approvals: The approval of each federal and state
--------------------
regulatory authority having jurisdiction over the transactions contemplated by
this Agreement (including the Merger), including without limitation, the Federal
Reserve Board, Pennsylvania Department of Banking, the Department and the
Federal Deposit Insurance Corporation, 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 SFC or the SFC Subsidiaries 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 SFC or the SFC
Subsidiaries, 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 SFC shall have received an opinion
-----------
of FFC's counsel, Barley, Snyder, ▇▇▇▇▇ & ▇▇▇▇▇, LLC, reasonably acceptable to
FFC and SFC, addressed to FFC and SFC, 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) of the Code;
(2) No gain or loss will be recognized by FFC, SFC or SCB by
reason of the Merger;
(3) The bases of the assets of SFC in the hands of FFC will be
the same as the bases of such assets in the hands of SFC immediately prior to
the Merger;
-31-
(4) The holding period of the assets of SFC in the hands of FFC
will include the period during which such assets were held by SFC prior to the
Merger;
(5) A holder of SFC Common Stock who receives shares of FFC
Common Stock in exchange for his SFC Common Stock pursuant to the reorganization
(except with respect to each received in lieu of 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 SFC 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 SFC 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 SFC pursuant to the terms of this Agreement will include the
holding period of the SFC Common Stock surrendered in exchange therefor,
provided that such SFC Common Stock is held as a capital interest at the
Effective Time.
(8) The holding period of the shares of FFC Common Stock to be
received by the shareholders of SFC will include the period during which they
held the shares of SFC Common Stock surrendered, provided the shares of SFC
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 information contained therein 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 SFC;
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.
(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 SFC and
-------- -------
SCB 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 SFC to
consummate this Agreement.
-32-
(g) Interim Condition. On or prior to March 8, 2000 (and effective as
-----------------
of the Effective Time), (i) each of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇.
▇▇▇▇▇▇ shall execute an amendment to his existing employment(s) with SFC and/or
the SFC Subsidiaries so as to, among other things, consent to certain respective
changes in his duties, powers and functions following the Merger and waiving any
right to resign from employment and/or obtain "change of control" or severance
payments as a result of the Merger, and (ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇ shall have entered
into an employment agreement with SCB. Such amendments and agreement shall be in
form mutually acceptable to FFC and such employees (the "Interim Condition").
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 SFC as set forth in this Agreement, all of the
information contained in Schedules hereto and all SFC Closing Documents (as
defined in Section 7.2(j)) 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), except to the extent that any misrepresentations and breaches of warranty
at the Closing shall not in the aggregate be material to SFC and the SFC
Subsidiaries taken as a whole.
(b) Covenants Performed: SFC 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 SFC: FFC shall have received an opinion,
--------------------------
dated the Effective Time, from ▇▇▇▇▇▇▇▇ & English, LLP, counsel to SFC, in
substantially the form of Exhibit C 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 SFC, FFC, affiliates of the foregoing, and others.
(d) Affiliate Agreements: Shareholders of SFC who are or will be
--------------------
affiliates of SFC or FFC for the purposes of Accounting Series Release No. 135
and the 1933 Act shall have entered into agreements with FFC, in form and
substance satisfactory to FFC, reasonably necessary to assure compliance with
Rule 145 under the 1933 Act.
(e) SFC Options: All holders of SFC Options shall have delivered
-----------
documentation reasonably satisfactory to FFC canceling the SFC Options in
exchange for FFC Stock Options pursuant to Section 2.3 herein.
(f) No Material Adverse Change: 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, since the date of this
Agreement, there shall not have been any material and adverse change in the
condition (financial or otherwise), assets, liabilities, business or
-33-
operations or future prospects of SFC or the SFC Subsidiaries. In particular,
without limiting the generality of the foregoing sentence, the Additional SFC
Financial Statements (as defined in Section 5.4) shall indicate that the
consolidated financial condition, assets, liabilities and results of operations
of SFC 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 SFC Balance Sheet. For purposes of
this Section 7.2 (f), a material and adverse change shall mean an event, change,
or occurrence which, individually or together with any other event, change, or
occurrence, has a material adverse impact on (i) the financial position,
business or results of operations or future prospects of SFC or (ii) the ability
of SFC to perform its obligations under this Agreement, provided that "material
and adverse change" shall not be deemed to include the impact of (a) changes in
banking and similar laws of general applicability or interpretations thereof by
courts or governmental authorities, (b) changes in GAAP or regulatory accounting
principles generally applicable to banks and their holding companies, (c)
actions or omissions of SFC taken at the direction or behest of FFC with the
prior written consent of FFC, including any action or actions, individually or
in the aggregate, taken by SFC or the SFC Subsidiaries, (d) changes in economic
conditions generally affecting financial institutions including changes in the
general level of interest rates, and (e) the direct effects of compliance with
this Agreement and of satisfying or causing to be satisfied the conditions set
forth in this Article VII on the operating performance of SFC, including
reasonable expenses incurred by SFC in consummating the transactions
contemplated by the Agreement. At the Closing, SFC shall deliver to FFC a
certificate confirming the absence of a material adverse change described
herein.
(g) Accountants' Letter. Subject to the requirements of Statement of
-------------------
Auditing Standards No. 72 of the American Institute of Certified Public
Accountants, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, or such other accounting firm as is acceptable
to FFC, shall have furnished to FFC an "agreed upon procedures" letter, dated
the Effective Date, in form and substance satisfactory to FFC to the effect
that:
(1) In their opinion, the consolidated financial statements of
SFC examined by them and included in the Registration Statement comply as to
form in all material respects with the applicable accounting requirements of the
1993 Act and the published rules and regulations thereunder; and
(2) On the basis of limited procedures, not constituting an
audit, including a limited review of the unaudited financial statements referred
to below, a limited review of the latest available unaudited consolidated
interim financial statements of SFC , inspection of the minute books of SFC and
the SFC Subsidiaries since December 31, 1999, inquiries of officials of SFC and
the SFC Subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing came
to their attention that caused them to believe that:
(A) any unaudited Consolidated Statements of Condition,
Consolidated Statements of Income, Consolidated Statements of Shareholders'
Equity and Consolidated Statements of Cash Flows of SFC included in the
Registration Statement are not in conformity with generally accepted accounting
principles applied on a basis substantially consistent
-34-
with that of the audited financial statements covered by their report included
in the Registration Statement;
(B) as of a specified date not more than five days
prior to the date of delivery of such letter, there have been any changes in the
consolidated shareholders' equity of SFC as compared with amounts shown in the
balance sheet as of December 31, 1999 included in the Registration Statement,
except in each cash for such changes, increases or decreases which the
Registration Statement disclosures have occurred or may occur and except for
such changes, decreases or increases as aforesaid which are immaterial; and
(C) for the period from January 1, 2000 to such
specified date, there were any decreases in the consolidated total or per share
amounts of net interest income, consolidated net interest income after provision
for loan losses, consolidated other income or consolidated net income of SFC as
compared with the comparable period of the preceding year, except in each case
for decreases which the Registration Statement discloses have occurred or may
occur, and except for such decreases which are immaterial.
(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) 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 or
operations of either SFC or SCB.
(j) Closing Documents: SFC shall have delivered to FFC: (i) a
-----------------
certificate signed by SFC's Chairman and President and Chief Executive Officer
and by its Secretary (or other officers reasonably acceptable to FFC) verifying
that all of the representations and warranties of SFC set forth in this
Agreement are true and correct in all material respects as of the Closing and
that SFC 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 SFC or
SCB is a party or by which they or any of their 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 "SFC Closing Documents").
(k) Section 7.3. Conditions Precedent to the Obligations of
----------- ------------------------------------------
SFC. The obligation of SFC 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 SFC in
accordance with the provisions of Section 8.4 herein:
-35-
(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 hereto and all FFC Closing Documents (as
defined in Section 7.3(g) 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), except to the extent that any misrepresentations
and breaches of warranty at the Closing shall not in the aggregate be material
to FFC and its subsidiaries taken as a whole.
(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: SFC shall have received an
--------------------------
opinion from Barley, Snyder, ▇▇▇▇▇ & ▇▇▇▇▇, LLC, counsel to FFC, dated the
Effective Time, 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 FFC, SFC, affiliates of the foregoing, and
others.
(d) FFC Options: FFC Options shall be substituted in
-----------
cancellation of the SFC Options pursuant to Section 2.3 herein.
(e) No Material Adverse Change: SFC (together with its
--------------------------
accountants, if the advice of such accountants is deemed necessary or desirable
by SFC) shall have established to its reasonable satisfaction that, since the
date of this Agreement, there shall not have been any material and adverse
change in the condition (financial or otherwise), assets, liabilities, business
or operations or future prospects of FFC. In particular, without limiting the
generality of the foregoing sentence, the Additional FFC Financial Statements
(as defined in Section 6.3) shall indicate that the consolidated 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 consolidated financial condition, assets, liabilities and results of
operations presented in the FFC Balance Sheet. For purposes of this Section
7.3(e), a material and adverse change shall mean an event, change, or occurrence
which, individually or together with any other event, change, or occurrence, has
a material adverse impact on (i) the financial position, business or results of
operations or future prospects of FFC or (ii) the ability of FFC to perform its
obligations under this Agreement, provided that "material and adverse change"
shall not be deemed to include the impact of (a) changes in banking and similar
laws of general applicability or interpretations thereof by courts or
governmental authorities, (b) changes in GAAP or regulatory accounting
principles generally applicable to banks and their holding companies, (c)
changes in economic conditions generally affecting financial institutions
including changes in the general level of interest rates, and (d) the direct
effects of compliance with this Agreement and of satisfying or causing to be
satisfied the conditions set forth in this Article VII on the operating
performance of FFC, including reasonable expenses incurred by FFC in
consummating the transactions contemplated by the Agreement. At the Closing, FFC
shall deliver to SFC a certificate confirming the absence of a material adverse
change described herein.
-36-
(f) Fairness Opinion: SFC shall have obtained from ▇▇▇▇▇▇▇▇▇,
----------------
▇▇▇▇ & ▇▇▇▇▇▇, or from another independent financial advisor selected by the
Board of Directors of SFC, an opinion dated within five (5) days of the Proxy
Statement/Prospectus to be furnished to the Board of Directors of SFC stating
that the Conversion Ratio contemplated by this Agreement is fair to the
shareholders of SFC from a financial point of view.
(g) Closing Documents: FFC shall have delivered to SFC: (i) a
-----------------
certificate signed by FFC's President and Chief Executive Officer (or other
officer reasonably acceptable to SFC) verifying that 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 SFC 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 Time (whether before or after the authorization,
approval and adoption of this Agreement by the shareholders of SFC) 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 SFC 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 written notice given promptly to SFC, if: (i) there has been a material
breach by SFC of any representation, warranty or material failure to comply with
any 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
FFC to SFC; (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
December 31, 2000; (iii) in the event the Board of Directors takes any of the
actions set forth in clauses (1), (2) and/or (3) of Section 5.7(b) herein in
compliance with the standards in (x) and (y) therein; (iv) in the event that,
prior to 9:00 a.m. on February 24, 2000, SFC does not execute and deliver the
Warrant Agreement and the Warrant (provided that SFC shall be under no
obligation to do so and the failure to do so will only permit termination of
this Agreement by FFC and shall not be a breach of this Agreement) or (v) in the
event the Interim Condition is not satisfied on or before March 8, 2000.
(c) Unilateral Action By SFC: This Agreement may be terminated
------------------------
unilaterally by the affirmative vote of a majority of the Board of Directors of
SFC, followed by written notice given promptly to FFC, if: (i) there has been a
material breach by FFC of any representation, warranty or material failure to
comply with any 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 SFC to FFC; or (ii) any condition precedent to SFC's obligations as set
forth in Article VII of this Agreement remains unsatisfied, through no fault of
SFC, on December 31, 2000.
-37-
(d) Market Price of FFC Common Stock. (i) SFC shall have the
---------------------------------
right to terminate this Agreement if the Closing Market Price is less than
$13.74, i.e. .85 multiplied by the Starting Price (the "Floor Price").
Notwithstanding the foregoing, FFC shall have the option to cause SFC to amend
this Agreement (and, upon such amendment, SFC shall not have the right to
terminate this Agreement) to increase the Conversion Ratio to a level,
calculated to four decimal places, equal to the Conversion Ratio multiplied by
the quotient of the Floor Price (the numerator) over the Closing Market Price
(the denominator). For example, if the Closing Market Price is $12.00 and the
Floor Price is $13.74, FFC would have the option to increase the Conversion
Ratio to .8931 (.78 x 13.74/12.00) in lieu of terminating this Agreement.
(ii) FFC shall have the right to terminate this
Agreement if the Closing Market Price is greater than $20.20, i.e. 1.25
multiplied by the Starting Price (the "Ceiling Price"). Notwithstanding the
foregoing, SFC shall have the option to cause FFC to amend this Agreement (and,
upon such amendment, FFC shall not have the right to terminate this Agreement)
to decrease the Conversion Ratio to a level, calculated to four decimal places,
equal to the Conversion Ratio multiplied by the quotient of the Ceiling Price
(the numerator) over the Closing Market Price (the denominator). For example, if
the Closing Market Price is $22.00 and the Ceiling Price is $20.20, SFC would
have the option to decrease the Conversion Ratio to .7162 (.78 x 20.20/22.00) in
lieu of terminating this Agreement.
(iii) For purposes of this Section 8.1(d), "Starting
Price" shall mean $16.16, i.e. the average of the per share closing bid and
asked prices for FFC Common Stock on February 22, 2000 as reported on NASDAQ.
(iv) The Starting Price and the Closing Market Price
shall be appropriately adjusted for an event described in Section 2.1(d) herein.
Section 8.2. Effect of Termination.
----------- ---------------------
(a) Effect. In the event of a permitted termination of this
------
Agreement under Section 8.1 herein, the Agreement 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. Subject to the terms of the Warrant
------------------
Agreement and the Warrant, 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 SFC, or if this Agreement is terminated by SFC 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 reasonable fees of its counsel, accountants, consultants and other advisors
and representatives.
-38-
(c) Confidentiality. In the event of a termination of this
---------------
Agreement, neither FFC nor SFC nor SCB 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 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 Time (whether before or after
the authorization, approval and adoption of this Agreement by the shareholders
of SFC), but only by a written instrument duly authorized, executed and
delivered by FFC and by SFC; provided, however, that, except as set forth in
-------- -------
Section 8.1(d) herein any amendment to the provisions of Section 2.1 herein
relating to the consideration to be received by the former shareholders of SFC
in exchange for their shares of SFC Common Stock shall not take effect until
such amendment has been approved, adopted or ratified by the shareholders of SFC
in accordance with applicable New Jersey law.
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 Time (whether before or after the authorization, approval and adoption
of this Agreement by the shareholders of SFC) by a written instrument duly
authorized, executed and delivered by such party or parties.
ARTICLE IX. CLOSING AND EFFECTIVE TIME
Section 9.1. 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 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, within thirty (30) days after the receipt of all required
regulatory and shareholder 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 SFC Closing Documents, the FFC Closing Documents, the
opinions of counsel required by Sections 7.1(d), 7.2(c) and 7.3(c) herein, and
such other documents and instruments as may be necessary or appropriate to
effectuate the purposes of this Agreement.
Section 9.2. Effective Time. Immediately following the Closing, and
----------- --------------
provided that this Agreement has not been terminated or abandoned pursuant to
Article VIII hereof, FFC and SFC will cause Articles of Merger (the "Articles of
Merger") to be delivered and properly filed with the Department of State of the
Commonwealth of Pennsylvania (the "Department of State") and the Office of the
Treasurer of the State of New Jersey (the "Treasurer"). The Merger shall become
effective on 11:59 p.m. on the day on which the Closing occurs and Articles of
Merger are filed with the Department of State and the Treasurer or such later
date and time as may be specified in the Articles of Merger (the "Effective
Time"). The "Effective Date" when used herein means the day on which the
Effective Time occurs.
-39-
ARTICLE X. NO SURVIVAL OF REPRESENTATIONS AND WARRANTIES
Section 10.1. No Survival. The representations and warranties of SFC
------------ -----------
and of FFC set forth in this Agreement shall expire and be terminated on the
Effective Time by consummation of this Agreement, and no such representation or
warranty shall thereafter survive. Except with respect to the agreements of the
parties which by their terms are intended to be performed either in whole or in
part after the Effective Time, the agreements of the parties set forth in this
Agreement shall not survive the Effective Time, and shall be terminated and
extinguished at the Effective Time, and from and after the Effective Time none
of the parties hereto shall have any liability to the other on account of any
breach of such agreements.
ARTICLE XI. GENERAL PROVISIONS
Section 11.1. 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 11.1 herein, the cost of printing the Proxy Statement/Prospectus
shall be deemed to be an expense of FFC.
Section 11.2. Other Mergers and Acquisitions. Subject to the right of
------------ ------------------------------
SFC to refuse to consummate this Agreement pursuant to Section 8.1(c) (i) 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 Time, 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 Time, 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 11.3. 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 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:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., President and Chief Executive Officer
▇▇▇▇▇▇ Financial Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-40-
With a copy to:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esquire
Barley, Snyder, ▇▇▇▇▇ & ▇▇▇▇▇, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(b) If to SFC, to:
Skylands Financial Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇ ▇. Poland, Esquire
▇▇▇▇▇▇▇▇ & English, LLP
Four Gateway Center
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Section 11.4. 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 11.5. 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.
Section 11.6. 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. Other than the right to receive
the consideration payable as a result of the Merger pursuant to Article II
hereof, this Agreement is not intended to and shall not confer upon any other
person any rights, benefits or remedies of any nature whatsoever under or by
reason of this Agreement.
Section 11.7. 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.
-41-
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.
▇▇▇▇▇▇ FINANCIAL CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., President and Chief
Executive Officer
Attest: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Secretary
SKYLANDS FINANCIAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ President and Chief
Executive Officer
By: /s/ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇, Chairman
Attest: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Secretary