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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) of the
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): January 12,
1996
BT Financial Corporation
(Exact name of registrant as specified in its charter)
Pennsylvania 0-12377 25-1441348
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
551 Main Street, Johnstown, Pennsylvania 15901
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code: 814-532-3801
Page 1 of 5 pages.
Exhibit Index on page 5.
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Item 5. Other Events.
On January 12, 1996, BT Financial Corporation, a
Pennsylvania corporation (the "Company") entered into an
Agreement and Plan of Reorganization (the "Merger Agreement")
with Moxham Bank Corporation, a Pennsylvania corporation
("Moxham"). Pursuant to the Merger Agreement, Moxham will merge
(the "Merger") with and into the Company, with the Company being
the surviving corporation, and immediately following the Merger,
the Company will merge (the "Bank Merger") The Moxham National
Bank of Johnstown, a national banking association and The First
National Bank of Garrett, a national banking association
(collectively the "Banks"), wholly-owned subsidiaries of Moxham,
with and into Johnstown Bank and Trust Company ("Johnstown
Bank"), a Pennsylvania bank and trust company and wholly-owned
subsidiary of the Company, with Johnstown Bank as the surviving
corporation.
The Merger Agreement is attached hereto as Exhibit 2
and incorporated by reference herein in its entirety.
2<PAGE>
(c) Exhibits.
Exhibit No. Description
----------- -----------
2 Agreement and Plan of
Reorganization dated January
12, 1996
3
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SIGNATURE
Pursuant to the requirements of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be
signed on its behalf by the undersigned hereunto duly authorized.
BT Financial Corporation
Date: March 18, 1996 By: /s/ John H. Anderson
---------------------------
John H. Anderson
Chairman and Chief Executive
Officer
4
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EXHIBIT INDEX
Sequential
Exhibit No. Description Page No.
----------- ----------- ----------
2 Agreement and Plan of __
Reorganization dated
January 12, 1996
5
AGREEMENT AND PLAN OF REORGANIZATION
BY AND BETWEEN
BT Financial Corporation
AND
Moxham Bank Corporation
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
1.1. Definitions . . . . . . . . . . . . . . . . . . . 2
1.2. Accounting Terms . . . . . . . . . . . . . . . . . 5
ARTICLE II
THE MERGER
2.1. Merger . . . . . . . . . . . . . . . . . . . . . . 6
2.2. Conversion of Shares of Moxham Stock . . . . . . . 6
2.3. Articles of Incorporation; By-Laws . . . . . . . . 7
2.4. Directors and Officers . . . . . . . . . . . . . . 7
2.5. Closing . . . . . . . . . . . . . . . . . . . . . 7
2.6. Exchange of Certificates for Stock and Cash . . . 8
(a) Moxham Stock . . . . . . . . . . . . . . . . 8
(b) Failure to Surrender Certificates . . . . . . 9
(c) Treasury Shares and Dissenters' Shares . . . 10
2.7. Termination of this Reorganization Agreement . . . 10
2.8. Confidentiality . . . . . . . . . . . . . . . . . 11
2.9. Public Disclosure . . . . . . . . . . . . . . . . 12
ARTICLE III
STOCKHOLDER APPROVAL
3.1. Moxham Stockholders Meeting . . . . . . . . . . . 12
3.2. BT Financial Stockholders Meeting . . . . . . . . 12
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
4.1. Representations and Warranties of Moxham . . . . . 13
(a) Organization and Capitalization . . . . . . . 13
(b) Authority for Transactions . . . . . . . . . 13
(c) No Conflicts . . . . . . . . . . . . . . . . 13
(d) Consents and Approvals . . . . . . . . . . . 14
(e) SEC Documents . . . . . . . . . . . . . . . . 14
(f) Subsidiaries . . . . . . . . . . . . . . . . 15
(g) Absence of Certain Changes or Events . . . . 15
(h) Certain Changes . . . . . . . . . . . . . . . 16
(i) Taxes . . . . . . . . . . . . . . . . . . . . 16
(j) Compliance with Laws . . . . . . . . . . . . 17
(k) Environmental . . . . . . . . . . . . . . . . 17
(l) Insurance . . . . . . . . . . . . . . . . . . 17
(m) ERISA . . . . . . . . . . . . . . . . . . . . 18
(n) Representations Not Misleading . . . . . . . . 19
(o) Information Supplied . . . . . . . . . . . . 19
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(p) Accounting Matters . . . . . . . . . . . . . 20
(q) Certain Agreements . . . . . . . . . . . . . 20
(r) Agreements with Bank Regulators . . . . . . . 20
(s) Loan Loss Reserve . . . . . . . . . . . . . . 21
(t) Fidelity Bonds . . . . . . . . . . . . . . . 21
4.2. Representations and Warranties of BT Financial . . 21
(a) Organization and Capitalization . . . . . . . 21
(b) Authority for Transactions . . . . . . . . . 22
(c) No Conflicts . . . . . . . . . . . . . . . . 22
(d) Consents and Approvals . . . . . . . . . . . 22
(e) SEC Documents . . . . . . . . . . . . . . . . 23
(f) Subsidiaries . . . . . . . . . . . . . . . . 24
(g) Absence of Certain Changes or Events . . . . 24
(h) Representations Not Misleading . . . . . . . 24
(i) Information Supplied . . . . . . . . . . . . 25
(j) Accounting Matters . . . . . . . . . . . . . 25
(k) Employment Matters . . . . . . . . . . . . . . 25
4.3. Covenants of Moxham . . . . . . . . . . . . . . . 25
(a) Access to Corporate Records . . . . . . . . . 25
(b) Financial Statements and Internal Audit
Reports . . . . . . . . . . . . . . . . . . . 26
(c) Negative Covenants - Conduct of Business . . 26
(d) Notice of Changes . . . . . . . . . . . . . . 28
(e) Acquisition Proposals . . . . . . . . . . . . 28
4.4. Covenants of Both Parties . . . . . . . . . . . . 29
(a) Conduct of Business . . . . . . . . . . . . . 29
(b) Best Efforts . . . . . . . . . . . . . . . . 30
(c) Other Actions . . . . . . . . . . . . . . . . 30
(d) Accounting Methods . . . . . . . . . . . . . 31
(e) Pooling and Tax-Free Reorganization
Treatment . . . . . . . . . . . . . . . . . . 31
(f) Environmental Studies . . . . . . . . . . . . 31
4.5. Covenants of BT Financial . . . . . . . . . . . . 32
(a) Access to Corporate Records . . . . . . . . . 32
(b) Financial Statements . . . . . . . . . . . . 32
(c) Notice of Changes . . . . . . . . . . . . . . 32
(d) Employee Matters . . . . . . . . . . . . . . 32
(e) Indemnification of Moxham Officers and
Directors . . . . . . . . . . . . . . . . . . 33
(f) Bank Regulatory Applications . . . . . . . . 34
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ARTICLE V
CONDITIONS PRECEDENT
5.1. Conditions Precedent to the Obligations of BT
Financial . . . . . . . . . . . . . . . . . . . . 35
(a) Performance of Covenants . . . . . . . . . . 35
(b) Representations True at Closing . . . . . . . 35
(c) Certified Resolutions . . . . . . . . . . . . 35
(d) Moxham Shareholder Approval . . . . . . . . . 35
(e) Government Approvals and Other Consents . . . 36
(f) No Injunction . . . . . . . . . . . . . . . . 36
(g) No Material Misstatements or Omissions . . . 36
(h) Changes in Financial Condition . . . . . . . 36
(i) Registration Statement . . . . . . . . . . . 37
(j) Opinion of Counsel . . . . . . . . . . . . . 37
(k) Fairness Opinion . . . . . . . . . . . . . . 37
(l) Accounting Opinion . . . . . . . . . . . . . 37
(m) BT Financial Shareholder Approval . . . . . . 37
(n) Tax Ruling or Opinion . . . . . . . . . . . . 37
(o) Dissenters' Shares . . . . . . . . . . . . . 38
5.2. Conditions Precedent to the Obligations of
Moxham . . . . . . . . . . . . . . . . . . . . . . 38
(a) Performance of Covenants . . . . . . . . . . 38
(b) Representations True at Closing . . . . . . . 38
(c) Certified Resolutions . . . . . . . . . . . . 39
(d) BT Financial Shareholder Approval . . . . . . 39
(e) Government Approvals and Other Consents . . . 39
(f) No Injunction . . . . . . . . . . . . . . . . 39
(g) No Material Misstatements or Omissions . . . 39
(h) Changes in Financial Condition . . . . . . . 39
(i) Registration Statement . . . . . . . . . . . 40
(j) Opinion of Counsel . . . . . . . . . . . . . 40
(k) Fairness Opinion . . . . . . . . . . . . . . 40
(l) Moxham Shareholder Approval . . . . . . . . . 40
(m) Tax Ruling or Opinion . . . . . . . . . . . . 40
5.3. Waivers . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE VI
BROKERS AND EXPENSES
6.1. Brokers . . . . . . . . . . . . . . . . . . . . . 41
6.2. Expenses . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE VII
MISCELLANEOUS
7.1. Further Assurances . . . . . . . . . . . . . . . . 42
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7.2. Survival of Representations, Warranties and
Covenants . . . . . . . . . . . . . . . . . . . . 42
7.3. Notices . . . . . . . . . . . . . . . . . . . . . 42
7.4 Third Party Beneficiaries . . . . . . . . . . . . 43
7.5. Binding Effect . . . . . . . . . . . . . . . . . . 43
7.6. Headings . . . . . . . . . . . . . . . . . . . . . 43
7.7. Counterparts . . . . . . . . . . . . . . . . . . . 44
7.8. Integration . . . . . . . . . . . . . . . . . . . 44
7.9. Amendments . . . . . . . . . . . . . . . . . . . . 44
7.10. Governing Law . . . . . . . . . . . . . . . . . . 44
7.11. Incorporation by Reference . . . . . . . . . . . 44
Exhibit A
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<PAGE>
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION is made and
entered into as of the ____ day of ____________, 1996 (the
"Reorganization Agreement"), by and among Moxham Bank
Corporation, a business corporation organized and existing under
the laws of the Commonwealth of Pennsylvania with its principal
office at 540 Central Avenue, Johnstown, Pennsylvania 15902
("Moxham"), and BT Financial Corporation, a business corporation
organized and existing under the laws of the Commonwealth of
Pennsylvania with its principal office at 551 Main Street,
Johnstown, PA 15901 ("BT Financial").
WITNESSETH:
WHEREAS, the respective Boards of Directors of Moxham and
BT Financial have determined that it would be in the best
interests of their respective organizations, stockholders and
customers and communities served by them for Moxham to be merged
with and into BT Financial (the "Merger") pursuant to this
Reorganization Agreement, whereby the stockholders of Moxham will
receive shares of common stock of BT Financial in exchange for
their shares of common stock of Moxham; and
WHEREAS, immediately following the Merger, BT Financial
shall merge First National Bank of Garrett, a national banking
association ("FNB Garrett") and Moxham National Bank, a national
banking association ("Moxham Bank"), wholly-owned subsidiaries of
Moxham, with and into Johnstown Bank and Trust Company, a
Pennsylvania bank and trust company and a wholly-owned subsidiary
of BT Financial ("Johnstown Bank"), which shall be the resulting
bank (the "Bank Merger"); and
WHEREAS, the respective Boards of Directors of Moxham and
BT Financial have approved the acquisition of Moxham and FNB
Garret and Moxham Bank by BT Financial through the proposed
merger of Moxham with and into BT Financial upon the terms and
conditions set forth in this Reorganization Agreement in
accordance with the provisions of Section 368(a) of the Internal
Revenue Code of 1986, as amended.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants, conditions and actions
hereinafter set forth, the parties hereto, each intending to be
legally bound hereby, agree as follows:
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ARTICLE I
DEFINITIONS
1.1. Definitions. The terms defined in this Section 1.1
shall have the meanings herein specified, unless the context
clearly requires otherwise. Other terms used herein are defined
elsewhere in this Reorganization Agreement.
"Articles of Merger" means the Articles of Merger delivered
to the Department of State of the Commonwealth of Pennsylvania
for filing pursuant to Sections 1921 et seq. of the BCL.
"BT Financial Common Stock" means the common stock, par
value $5 per share, of BT Financial.
"Bank Holding Company Act" means the Bank Holding Company
Act of ________, as amended.
"Bank Merger" means the merger of FNB Garrett and Moxham
Bank with and into Johnstown Bank, with Johnstown Bank as the
Resulting Institution.
"Bank Regulator" means all Federal or state Governmental
Entities charged with the supervision or regulation of banks or
bank holding companies engaged in the insurance of bank deposits.
"BCL" means the Pennsylvania Business Corporation Law of
1988, as amended.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"Closing and Closing Date" are defined in Section 2.5.
"COBRA" means the Consolidated Omnibus Budget
Reconciliation Act of 1986.
"Code" means the Internal Revenue Code of 1986, as amended.
"Common Exchange Ratio" is defined in Section 2.2.
"Consents" means all authorizations, consents, orders or
approvals of, or declarations of filings with, and all
expirations of waiting periods imposed by, any Governmental
Entity.
"Dissenters' Shares" means any shares of Moxham Common
Stock or Moxham Preferred Stock in respect of which the holders
thereof shall have objected to the Merger and otherwise complied
with such of the requirements of Section 1930 of the BCL in order
to be entitled to the rights and remedies of dissenting
stockholders.
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"DOB" means the Pennsylvania Department of Banking.
"Environmental Condition" means (x) the presence in surface
water, groundwater, drinking water supply, land surface,
subsurface strata, above-ground or underground storage tanks or
other containers, or ambient air of any pollutant, contaminant,
industrial solid waste, polychlorinated biphenyls or Hazardous
Substances or (y) any violation of any statute, ordinance,
regulation, administrative order, judicial order or decree or
other governmental requirement relating to the emission,
discharge, deposit, disposal, leaching, migration or release of
any Hazardous Substance into the environment or the generation,
treatment, storage, transportation or disposal of any Hazardous
Substance (i) arising out of or otherwise related to the
operations or other activities (including the disposition of such
materials or substances) of a company or any of its Subsidiaries,
or of any predecessor in title, interest or line of business to
such company, conducted or undertaken prior to the Closing, or
(ii) existing at or prior to the Closing at the Owned Real
Property, any Leased Real Property or any real property securing
outstanding loans owed to such company.
"Effective Time" means the date and time the Articles of
Merger are filed with the Secretary of State of the Commonwealth
of Pennsylvania pursuant to the provisions of Sections 1921 et
seq. of the BCL, which filing shall be made on the Closing Date
or such later date and time as may be mutually agreed upon by the
Parties and as specified in the Articles of Merger.
"ERISA" means the Employee Retirement Income Security Act
of 1974, as amended.
"Exchange Act" means the Securities Exchange Act of 1934,
as amended.
"FDIA" means the Federal Deposit Insurance Act.
"FDIC" means the Federal Deposit Insurance Corporation.
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System.
"Governmental Entity" means any court, administrative
agency or commission or other governmental authority or
instrumentality, domestic or foreign.
"Hazardous Substance" means any hazardous or toxic or
polluting substance or waste, pollutant, contaminant, industrial
solid waste, residual waste or special waste, including, but not
limited to, any substance, waste or other material included in
the definition of "Hazardous Substance" as set forth in Section
101(14) of CERCLA.
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"Leased Real Property" is defined in Section 4.1(k).
"Moxham Common Stock" means the common stock, $2 par value
per share, of Moxham.
"Moxham Preferred Stock" means Moxham's Series A $8.00
Cumulative Convertible Non-Voting Preferred Stock.
"NASD" means the National Association of Securities
Dealers, Inc.
"NASDAQ" means the NASD Automated Quotations System.
"OCC" means the Office of the Comptroller of the Currency.
"Owned Real Property" means all real property (including
real estate owned or acquired through foreclosure) owned by
Moxham or any of its Subsidiaries.
"Parties" means Moxham and BT Financial in connection with
this Reorganization Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Preferred Exchange Ratio" is defined in Section 2.2(a).
"Prospectus/Proxy Statement" means the Prospectus/Proxy
Statement, together with any supplements thereto, to be sent to
the stockholders of each of Moxham and BT Financial to solicit
their votes in connection with the transactions contemplated by
this Reorganization Agreement.
"Registration Statement" means the registration statement
on Form S-4 (or other appropriate form) of BT Financial,
including any amendments or supplements thereto, as declared
effective by the SEC under the Securities Act with respect to the
issuance of BT Financial Common Stock in connection with the
Merger and the approval by the stockholders of Moxham and BT
Financial of the transactions contemplated by this Reorganization
Agreement, which Registration Statement shall include the
Prospectus/Proxy Statement.
"Requisite Regulatory Approvals" means all Consents which
are necessary for the consummation of the Merger or Bank Merger,
other than immaterial Consents the failure to obtain which would
have no material adverse effect on the consummation of the Merger
or the Bank Merger or on BT Financial.
"Resulting Company" means BT Financial after consummation
of the Merger.
"SAIF" means the Savings Association Insurance Fund.
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"SEC" means the United States Securities and Exchange
Commission.
"Securities Act" means the Securities Act of 1933, as
amended.
"Securities Laws" means the Securities Act, the Exchange
Act and applicable state "blue sky" securities laws.
"Service" means the United States Internal Revenue Service.
"Subsidiary" means any corporation or other entity of which
the securities or other ownership interests having ordinary
voting power to elect a majority of the board of directors or
other persons performing similar functions of such corporation or
other entity are at the time directly or indirectly owned or
controlled by a Party.
"Taxes" means all federal, state and local taxes and
similar governmental charges.
"Transactions" means the negotiation and execution of this
Reorganization Agreement, the Merger, the Bank Merger and all
related transactions.
1.2. Accounting Terms. For all purposes of this
Reorganization Agreement, unless the context clearly requires
otherwise, any accounting term not specifically defined in this
Reorganization Agreement shall have the meaning given to it in
accordance with generally accepted accounting principles and
practices within the financial institutions industry as in effect
as of the date of this Reorganization Agreement.
ARTICLE II
THE MERGER
2.1. Merger.
(a) Holding Company Merger. Upon satisfaction of the
conditions set forth herein, at the Effective Time, Moxham shall
merge with and into BT Financial in accordance with the
provisions and procedures set forth herein, and BT Financial
shall be the Resulting Company. At the Effective Time, the
separate corporate existence of Moxham shall cease and BT
Financial shall succeed to all the rights, privileges, immunities
and franchises, and all the property and assets, real, personal
and mixed, of Moxham, without the necessity for any separate
conveyance or other transfer. The Resulting Company shall
thereafter be responsible and liable for all liabilities and
obligations of Moxham of every kind and description, and neither
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the rights of creditors nor any liens on the property of Moxham
shall be impaired by the Merger.
(b) Bank Merger. After the Effective Time, BT Financial
will cause the Bank Merger to occur in accordance with the Bank
Plan of Merger attached hereto as Exhibit A.
2.2. Conversion of Shares of Moxham Stock.
(a) At the Effective Time,
(i) each share of Moxham Common Stock then
outstanding, except Dissenters' Shares and treasury shares, shall
be converted into the right to receive 1.15 shares of BT
Financial Common Stock (the "Common Exchange Ratio"), in each
case except as set forth in Section 2.2(b) and (c), and
(ii) each share of Moxham Preferred Stock then
outstanding (except Dissenters Shares and treasury shares) shall
be converted into the right to receive 6.325 shares of BT
Financial Common Stock, (the "Preferred Exchange Ratio") plus
accrued but unpaid dividends thereon to the Effective Time, in
each case except as set forth in Section 2.2(b) and (c).
(b) On the Closing Date, by virtue of the Merger, and
without any action on the part of the stockholders of Moxham,
each of the then issued and outstanding shares of Moxham Common
Stock and Moxham Preferred Stock shall cease to exist and shall
be deemed canceled, retired and eliminated, and all rights in
respect thereof (other than with respect to Dissenters' Shares)
shall cease except the herein described rights to receive BT
Financial Common Stock, regardless of whether the certificates
representing such shares are surrendered to BT Financial by the
stockholders of Moxham.
(c) The Common Exchange Ratio and the Preferred Exchange
Ratio shall be adjusted at the Effective Time to reflect any
consolidation, split-up, other subdivision or combination of BT
Financial Common Stock, any dividend payable in BT Financial
Common Stock, or any capital reorganization involving the
reclassification of BT Financial Common Stock subsequent to the
date of this Reorganization Agreement and prior to such time. BT
Financial shall register under the Securities Act all shares of
BT Financial Common Stock to be issued in the Merger prior to the
Effective Time thereof.
2.3. Articles of Incorporation; By-Laws. At the Effective
Time, the articles of incorporation and bylaws of BT Financial as
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in effect immediately prior to the Effective Time shall be the
articles of incorporation and bylaws of the Resulting Company.
2.4. Directors and Officers.
(a) The directors and officers of the Resulting Company
from and after the Effective Time shall be the directors and
officers of BT Financial immediately prior to the Effective Time.
In addition, four directors of Moxham designated by Moxham who
shall be acceptable to BT Financial shall become directors of BT
Financial at the Effective Time to serve for such terms as may be
determined by BT Financial consistent with its director
retirement policies.
(b) Immediately after the Bank Merger, Charles T. Evans
and seven other directors of Moxham, selected by Moxham prior to
the Merger (who may include some of those persons selected to be
directors of BT Financial pursuant to clause (a) of this Section
2.4) and acceptable to BT Financial shall be appointed to the
Board of Directors of Johnstown Bank, each to serve until the
1997 annual meeting of the stockholders of BT Financial.
2.5. Closing. The closing hereunder ("Closing") shall
take place at the offices of Kirkpatrick & Lockhart LLP, 1500
Oliver Building, Pittsburgh, Pennsylvania 15222, or such
other place agreed upon by the Parties, on the closing date
selected by the Parties (the "Closing Date") which shall be the
latest of:
(a) Any business day between the thirtieth and forty-
fifth day following approval of the Merger and the Bank Merger by
the Federal Reserve Board, or other applicable federal or state
regulatory agency, if all other conditions set forth in Article V
have been satisfied or waived; or
(b) The fifth business day following approval of the Bank
Merger by the DOB; or
(c) The fifth business day after any stay of any approval
of the transactions referred to in clause (a) or (b) of this
Section 2.5 or any injunction against consummation of such
transactions is lifted, discharged or dismissed, if all other
conditions set forth in Article V have been satisfied or waived;
or
(d) Such other date as shall be mutually agreed to in
writing by the Parties on which all other conditions set forth in
Article V shall have been satisfied or waived.
Any Party may postpone the Closing Date once for a reasonable
period of time (which shall be no more than thirty (30) days and
in no event ending later than the day of automatic termination in
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accordance with Section 2.7(g)) if necessary to enable it to
perform any obligations hereunder; provided, that such Party
provides prompt written notice to the other Parties of such
postponement, stating the reasons therefor. If either Moxham or
BT Financial shall refuse to close because all the conditions
precedent to its obligation to close shall not have been met on
the Closing Date as postponed, such Party may immediately
terminate this Reorganization Agreement by giving written notice
of such termination to the other Parties.
2.6. Exchange of Certificates for Stock and Cash.
(a) Moxham Stock. After the Effective Time, each holder
of a certificate for theretofore outstanding shares of Moxham
Common Stock or Moxham Preferred Stock, upon surrender of such
certificate to BT Financial or its exchange agent, together with
a duly executed and completed letter of transmittal, which shall
be mailed to each holder of a certificate for theretofore
outstanding shares of Moxham Common Stock or Moxham Preferred
Stock by BT Financial or its exchange agent promptly following
the Effective Time, shall be entitled to receive in exchange
therefor a certificate or certificates representing the number of
whole shares of BT Financial Common Stock to which such
stockholder is entitled as provided in Section 2.2, plus cash
(payable by check) in lieu of any fractional share of BT
Financial Common Stock to which such holder would otherwise be
entitled. Neither certificates nor scrip certificates for
fractions of shares of BT Financial Common Stock shall be issued,
and holders of Moxham Common Stock or Moxham Preferred Stock who
would but for this Section 2.6(a) be entitled to receive
fractions of shares of BT Financial Common Stock shall have none
of the rights with respect to such fractions of shares
(including, without limitation, the right to receive dividends)
which a holder shall possess in respect of a full share of BT
Financial Common Stock, and each such holder shall receive, in
lieu of the applicable fraction of a share of BT Financial Common
Stock, a cash payment therefor equal to such fraction of a share
of BT Financial Common Stock multiplied by the closing sales
price on NASDAQ for a share of BT Financial Common Stock on the
Closing Date as reported in The Wall Street Journal, or, if BT
Financial Common Stock is not traded on such date, the next
preceding day on which such stock is traded. No interest will be
paid or accrued on cash payable upon surrender of certificates
previously representing Moxham Common Stock.
(b) Failure to Surrender Certificates. Until surrendered
in accordance with the provisions of this Section 2.6, the
certificates which immediately prior to the Effective Time
represented issued and outstanding shares of Moxham Common Stock
or Moxham Preferred Stock (except for certificates representing
Dissenters' Shares and treasury shares) shall from and after the
Effective Time represent for all purposes only the right to
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receive BT Financial Common Stock as provided in Section 2.2.
Upon surrender of a certificate for theretofore outstanding
shares of Moxham Common Stock or Moxham Preferred Stock, there
shall be paid to the recordholder of the certificate for shares
of BT Financial Common Stock issued in exchange therefor (i) on
the date of such exchange, the amount of dividends theretofore
accrued and payable with respect to such full shares of BT
Financial Common Stock as of any date subsequent to the Effective
Time which have not yet been paid to a public official pursuant
to abandoned property laws, (ii) on the date of such exchange
cash in an amount equal to the accrued but unpaid dividend in
respect of Moxham Preferred Stock represented by certificates
therefore surrendered for exchange through the Effective Date,
accrued at the dividend rate of the Preferred Stock for the
number of days between the last date on which dividends on the
Moxham Preferred Stock shall have been paid and the Effective
Date, based on a year of 360 days having months of 30 days each,
and (iii) at the appropriate payment date, the amount of
dividends with a record date after the Effective Time but prior
to such surrender and a payment date subsequent to such
surrender. No interest shall be payable with respect to such
dividends.
(c) Treasury Shares and Dissenters' Shares. At the
Effective Time, each share of Moxham Common Stock and Moxham
Preferred Stock held in treasury shall be canceled, retired and
cease to exist and no consideration shall be paid therefor and
each Dissenters' Share shall be treated in accordance with
Section 1930 of the BCL.
2.7. Termination of this Reorganization Agreement. This
Reorganization Agreement and the transactions contemplated hereby
may be terminated:
(a) at any time prior to the Effective Time by mutual
consent in writing of the Parties;
(b) as provided in Section 2.5;
(c) by either party in writing on or before the 60th day
after the date hereof, if anything has come to the attention of
such party in the course of its due diligence investigation of
the other party that in such party's reasonable, good faith
opinion adversely affects the business, financial condition or
results of operations of the other party so that it would be
inadvisable for such party to proceed with the transactions
contemplated herein; or
(d) at any time, by either Party hereto in writing, if
the applications for prior approval referred to in Section 4.5(f)
hereof have been denied, and the time period for appeals and
requests for reconsideration has run;
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(e) at any time, by either Party hereto in writing, if
the stockholders of either Moxham and BT Financial do not approve
the transactions contemplated herein at the respective annual or
special meetings duly called for that purpose;
(f) at any time, by either Party in writing, if such
party determines in good faith that any condition precedent to
such party's obligations to consummate the Merger and the Bank
Merger is or would be impossible to satisfy, provided that the
terminating party has given the other party written notice with
respect thereto at least 10 days prior to such termination and
has given the other party a reasonable opportunity to discuss the
matter with a view to achieving a mutually acceptable resolution;
(g) in any event, automatically on May 30, 1996 if the
Merger has not been consummated on or before such date, unless
extended by mutual consent of the Parties.
In the event of any termination hereunder, (i) Sections 2.7 and
2.8 and Article VI hereof shall survive any termination; (ii) if
BT Financial terminates this Reorganization Agreement under
Section 2.5 due to the failure of any condition set forth in
Section 5.1(a), (b), (c) or (g), then Moxham shall reimburse BT
Financial for attorneys' fees and other expenses reasonably
incurred in connection with the Transactions and such failure
shall constitute a breach of this Reorganization Agreement and BT
Financial shall have all rights available in law and at equity
for such breach of contract; (iii) if Moxham terminates this
Reorganization Agreement under Section 2.5 due to the failure of
any condition set forth in Section 5.2(a), (b), (c) or (g), then
BT Financial shall reimburse Moxham for attorneys' fees and other
expenses reasonably incurred in connection with the Transactions
and such failure shall constitute a breach of this Reorganization
Agreement and Moxham shall have all rights available in law and
at equity for such breach of contract; (iv) if BT Financial
terminates this Reorganization Agreement under Section 2.5 due to
the failure of any condition set forth in Section 5.1(h) or (o),
then Moxham shall reimburse BT Financial for attorneys' fees and
other expenses reasonably incurred in connection with the
Transactions (to the extent not already paid by Moxham to BT
Financial) and upon payment in full thereof, Moxham shall have no
further liability or obligation hereunder to BT Financial; (v) if
Moxham terminates this Reorganization Agreement under Section 2.5
due to the failure of any condition set forth in Section 5.2(h),
then BT Financial shall reimburse Moxham for attorneys' fees and
other expenses reasonably incurred in connection with the
Transactions and, upon payment in full thereof, BT Financial
shall have no further liability or obligation hereunder to
Moxham; and (vi) if either party terminates for any reason other
than those specified in clauses (ii) through (v) above, then
neither Party shall have any further liability to the other.
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2.8. Confidentiality. In connection with the Merger and
the Bank Merger, each Party has furnished and will furnish to the
officers, pursuant to this Reorganization Agreement or otherwise,
confidential information concerning its business and financial
condition. Each Party shall, and shall cause its employees,
agents, accountants, attorneys and investment advisors to,
maintain the confidentiality of such information received from
the other Parties and shall not use such information for any
purpose except in furtherance of the Merger, the Bank Merger and
the other transactions contemplated hereby. In the event of a
termination of this Reorganization Agreement, upon request by a
Party, the other Party shall return or destroy all copies of
written confidential information received from such Party,
whether pursuant to this Reorganization Agreement or otherwise,
and all documents prepared by them which contain such
information.
2.9. Public Disclosure. Each Party shall consult with the
other Party before issuing any press release or making any other
public disclosure regarding the proposed Merger, the Bank Merger
or the other transactions contemplated hereby and shall not issue
any press release or make any other public disclosure prior to
such consultations, except as may be required by law or by the
rules of NASD in the opinion of counsel. A copy of such press
release or public disclosure (or, if not in written form, a
written description thereof) shall be provided to the other Party
a reasonable period of time prior to the dissemination thereof.
ARTICLE III
STOCKHOLDER APPROVAL
3.1. Moxham Stockholders Meeting. Moxham shall submit
this Reorganization Agreement to its stockholders for approval in
accordance with the BCL at a meeting duly convened and held on
such date as shall be mutually agreed upon by Moxham and BT
Financial. In connection with such meeting, Moxham shall furnish
the Prospectus/Proxy Statement to its stockholders. The Board of
Directors of Moxham shall recommend the proposed Merger to its
stockholders and use its best efforts to obtain the affirmative
vote of the stockholders of Moxham required to approve the
transactions contemplated by this Reorganization Agreement.
3.2. BT Financial Stockholders Meeting. BT Financial
shall submit this Reorganization Agreement to its stockholders
for approval in accordance with the BCL at a meeting duly
convened and held on such date as shall be mutually agreed upon
by BT Financial and Moxham. In connection with such meeting, BT
Financial shall furnish the Prospectus/Proxy Statement to its
stockholders. The Board of Directors of BT Financial shall
recommend the proposed Merger to its stockholders and use its
best efforts to obtain the affirmative vote of the stockholders
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of BT Financial required to approve the transactions contemplated
by this Reorganization Agreement.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
4.1. Representations and Warranties of Moxham. Moxham
represents and warrants to BT Financial as follows:
(a) Organization and Capitalization. Moxham is a
corporation duly organized, validly existing and in good standing
under the laws of the Commonwealth of Pennsylvania and has full
power and authority to carry on its business as it is now being
conducted and to carry out the transactions contemplated by this
Reorganization Agreement. The authorized capital stock of Moxham
consists of 2,880,000 shares of common stock, $2 par value per
share, of which 905,437 shares are issued and outstanding as of
the date hereof and no shares are held in the treasury of Moxham,
and 250,000 shares of Moxham Preferred Stock, no par value, of
which 14,000 shares are issued and outstanding. All issued and
outstanding shares of Moxham Common Stock are validly issued,
fully paid and nonassessable. There is no subscription, option,
warrant, call, right, stock appreciation right or commitment of
any kind obligating Moxham to issue any of its stock or to
acquire any of its stock under any circumstances or to pay cash
on account of stock appreciation except as provided in its
articles of incorporation relating to conversion rights of the
Moxham Preferred Stock.
(b) Authority for Transactions. This Reorganization
Agreement has been, and the Articles of Merger and the
Certificate of Merger, when executed and delivered, will have
been, duly and validly authorized, executed and delivered by
Moxham, subject only to the approval of the stockholders of
Moxham and BT Financial, the DOB and the Federal Reserve Board,
and constitutes the valid and binding obligations of Moxham and
are and will be enforceable in accordance with their respective
terms.
(c) No Conflicts. Neither the execution, delivery and
performance of this Reorganization Agreement by Moxham nor the
consummation of the Transactions nor compliance by Moxham with
any of the provisions hereof will
(i) violate, or conflict with, or result in a breach
of any provisions of, or constitute a default (or an event which,
with notice or lapse of time or both, would constitute a default)
under, or result in the termination of, or accelerate the
performance required by, or result in a right of termination or
acceleration under, or result in the creation of any lien,
security interest, charge or encumbrance upon any of the
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properties or assets of Moxham or any of its Subsidiaries under
any of the terms, conditions or provisions of, (A) the articles
of incorporation or bylaws, as amended, of Moxham or any of its
Subsidiaries or (B) any note, bond, mortgage, indenture, deed of
trust, license, lease, agreement or other instrument or
obligation to which Moxham or any of its Subsidiaries is a party
or by which either of them is bound or to which any of their
respective properties or assets may be subject, or
(ii) violate any judgment, ruling, order, writ,
injunction, decree, statute, rule or regulation applicable to
them or any of their respective properties or assets.
(d) Consents and Approvals. No consents or approvals of
or filings or registrations with any third party or any public
body, agency or authority are necessary in connection with the
execution and delivery by Moxham of this Reorganization
Agreement, its performance of the transactions contemplated
hereby and consummation of the transactions contemplated hereby
except for
(i) the filing with any federal or state governmental
authority of a Prospectus/Proxy Statement, a Registration
Statement and any other applicable securities filings relating to
the issuance of BT Financial Common Stock and the meetings of the
stockholders of Moxham and BT Financial, respectively, at which
the Merger is to be considered;
(ii) the approval of the Federal Reserve Board and
the DOB of BT Financial's acquisition of all of the issued and
outstanding shares of Moxham;
(iii) the approval of the stockholders of Moxham;
(iv) the approval of the stockholders of BT
Financial; and
(vi) the expiration of any regulatory waiting period.
(e) SEC Documents. Moxham has made available to BT
Financial a true and complete copy of each report, schedule,
registration statement and definitive proxy statement filed by
Moxham with the SEC (other than reports filed pursuant to Section
13(d) or 13(g) of the Exchange Act) since December 31, 1993 (as
such documents have since the time of their filing been amended,
the "Moxham SEC Documents"), which are all the documents (other
than preliminary material and reports required pursuant to
Section 13(d) or 13(g) of the Exchange Act) that Moxham was
required to file with the SEC since that date. As of their
respective dates of filing with the SEC, the Moxham SEC Documents
complied in all material respects with the requirements of the
Securities Act, or the Exchange Act, as the case may be, and the
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rules and regulations of the SEC thereunder applicable to such
Moxham SEC Documents, and did not contain any untrue statement of
a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading. The financial statements of Moxham included in the
Moxham SEC Documents complied as to form, as of their respective
dates of filing with the SEC, in all material respects with
applicable accounting requirements and with the published rules
and regulations of the SEC with respect thereto, have been
prepared in accordance with generally accepted accounting
principles applied on a consistent basis during the periods
involved (except as may be indicated in the notes thereto or, in
the case of the unaudited statements, as permitted by Form 10-QSB
of the SEC) and fairly present in all material respects the
consolidated financial position of Moxham and its consolidated
Subsidiaries as at the dates thereof and the consolidated results
of operations, changes in stockholders' equity and cash flows of
such companies for the periods then ended. All material
agreements, contracts and other documents required to be filed as
exhibits to any of the Moxham SEC Documents have been so filed.
(f) Subsidiaries. Exhibit 21 to Moxham's Annual Report
on Form 10-KSB for the fiscal year ended December 31, 1994
includes all the Subsidiaries of Moxham as of the date of this
Agreement. Moxham owns, directly or indirectly, beneficially and
of record 100% of the issued and outstanding voting securities of
each such Subsidiary (other than directors' qualifying shares, if
any). Each of Moxham's Subsidiaries that is a bank (as defined
in the BHC Act) is an "insured bank" as defined in the FDIA and
applicable regulations thereunder. No deposits of Moxham's
subsidiaries are insured by the SAIF. All of the shares of
capital stock of each of the Subsidiaries held by Moxham
Subsidiary are fully paid and nonassessable and are owned by
Moxham or a Subsidiary of Moxham free and clear of any claim,
lien or encumbrance.
(g) Absence of Certain Changes or Events. Except as
disclosed in the Moxham SEC Documents filed prior to the date of
this Agreement, since December 31, 1994, Moxham and its
Subsidiaries have not incurred any material liability, except in
the ordinary course of their businesses consistent with their
past practices, nor has there been any change, or any event
involving a prospective change, in the business, financial
condition or results of operations of Moxham or any of its
Subsidiaries which has had, or is reasonably likely to have, a
material adverse effect on Moxham, and Moxham and its
Subsidiaries have conducted their respective businesses in the
ordinary course consistent with their past practices.
(h) Certain Changes. Since December 31, 1994, there has
been:
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(i) no change in the organization, key personnel or
method of doing business of Moxham or any of its Subsidiaries,
except for changes in the ordinary course of business, none of
which, individually or in the aggregate, has been material to the
business or financial condition of Moxham on a consolidated
basis;
(ii) no damage, destruction or casualty loss with
respect to property owned or leased by Moxham or any of its
Subsidiaries (whether or not covered by insurance) which affected
or could affect the business or financial condition or results of
Moxham on a consolidated basis;
(iii) no changes in the authorized or issued shares
of Moxham Common Stock or Moxham Preferred Stock and no
declaration or payment of distributions or dividends with respect
to the Moxham Common Stock or redemption or repurchase of any
such shares, except as otherwise permitted by Section 4.3(c) of
this Reorganization Agreement and except for changes occurring as
a result of any conversion of Moxham Preferred Stock into Moxham
Common Stock; and
(iv) no acquisition by Moxham or any of its
Subsidiaries of the assets or more than 5% of the outstanding
voting capital stock of another company.
(i) Taxes. Moxham and its Subsidiaries have filed when
due all returns ("Returns") for and paid in full all Taxes to the
extent such filings and payments were required prior to the date
of this Reorganization Agreement. Such filings comply with all
applicable laws and are true, correct and complete. Any amounts
set up as accruals or reserves in the audited consolidated
financial statements of Moxham are sufficient for the payment of
all Taxes, whether or not presently being asserted or assessed,
the liability for which has arisen from any action of Moxham or
any of its Subsidiaries prior to the dates of such financial
statements. No claims are currently being made by any taxing
authority with respect to any Return, and Moxham has no knowledge
of any basis for any such claims. Proper and accurate amounts
have been withheld and remitted by Moxham and its Subsidiaries
from and for their employees for all prior periods in compliance
with the tax withholding provisions of applicable federal, state
and local law. Moxham has not had any Tax deficiencies proposed
or assessed against it and has not executed any waiver or
extended the statute of limitations on the audit of any Return or
the assessment or collection of any Tax.
(j) Compliance with Laws. Moxham and each of its
Subsidiaries are in compliance in all material respects with all
laws and regulations applicable to their respective operations or
with respect to which compliance is a condition of engaging in
the business thereof. Moxham and its Subsidiaries have paid all
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assessments and filed all reports and statements required to be
filed with respect thereto under the rules and regulations of the
DOB and the OCC.
(k) Environmental.
(i) There are no Environmental Conditions applicable
to Moxham or any of its Subsidiaries;
(ii) There are no underground storage tanks located
beneath the Owned Real Property or any real property leased by
Moxham or any of its Subsidiaries (the "Leased Real Property");
(iii) No investigation, administrative order, consent
order, agreement, litigation or settlement with respect to any
Environmental Condition is proposed, threatened or in existence
and neither Moxham nor any of its Subsidiaries has received any
communication from or on behalf of any governmental authority
that alleges that any such Environmental Condition exists;
(iv) Neither Moxham nor any of its Subsidiaries has
transported any Hazardous Substances or arranged for the
transportation of such Hazardous Substances to any location which
is listed or proposed for listing under CERCLA or which is the
subject of federal, state or local enforcement actions or other
investigations which may lead to claims against Moxham or any of
its Subsidiaries for clean-up costs, remedial work, damages to
natural resources or for personal injury claims, including, but
not limited to, claims under CERCLA.
(l) Insurance. Neither Moxham nor any of its
Subsidiaries is in default with respect to any provisions of any
liability or other forms of insurance held by it or has failed to
give any notice or present any claim thereunder in a due and
timely fashion. All polices of insurance are in full force and
effect and are carried in an amount and are otherwise adequate to
protect Moxham from any material adverse loss on a consolidated
basis. Neither Moxham nor any of its Subsidiaries has been
denied any application for insurance or had any policy of
insurance terminated during the past three years, or has been
notified of any pending termination.
(m) ERISA.
(i) Disclosure. Moxham has previously delivered to
BT Financial a true, correct and complete list of all qualified
pension and profit-sharing plans, all deferred compensation,
consultant, bonus and group insurance contracts and other
incentive, welfare and employee benefit plans and agreements that
are presently in effect for the benefit of employees or former
employees of either Moxham or any of its Subsidiaries. Moxham
has made available to BT Financial, as to each plan where
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applicable, a true and correct copy of (A) such plan, (B) the
most recent annual report (Form 5500) filed with the Service, (C)
each trust agreement and group annuity contract relating to such
plan, (D) the most recent actuarial report or valuation relating
to such plan that was delivered to either Moxham or any of its
Subsidiaries by the actuary for the plan and (E) the most recent
favorable Service determination letter with respect to such plan.
Moxham has previously delivered to BT Financial a list of all
employee benefit plans (as defined in Section 3(3) of ERISA) and
each other employee benefit arrangement, contract, agreement or
policy, including, without limitation, pension or profit sharing
or thrift plans, contributions to medical benefit, death benefit
and disability programs, and vacation and sick leave policies
applicable to employees of either Moxham or any of its
Subsidiaries (hereinafter referred to collectively as the
"Plans"). All Plans have been operated substantially in
accordance with their respective terms and there have been no
operational defects in the operation of the Plans. All Plans
have complied in all material respects with applicable
requirements of the Code and any predecessor federal income tax
laws, ERISA, the health care continuation requirements of COBRA,
all other applicable laws, and any applicable collective
bargaining agreements. Without limiting the generality of the
foregoing, Moxham and its Subsidiaries have provided all notices
and other correspondence to employees and former employees
required by the health care continuation provisions of COBRA,
except where the failure to provide any such notice would not
have a material adverse effect on Moxham on a consolidated basis.
(ii) Liabilities. Neither Moxham nor its
Subsidiaries nor any Plan has incurred any liability to the PBGC
or excise tax payable to the Service with respect to any Plans,
and neither Moxham nor any of its Subsidiaries has incurred any
liability under Section 4201 of ERISA for a complete or partial
withdrawal from, nor does it have any obligation to contribute
to, a multiemployer plan. Neither Moxham nor its Subsidiaries
have knowledge of any circumstances that would adversely affect
the qualification of the Plans or their compliance with the
applicable requirements of ERISA, of any "reportable event"
(within the meaning of Section 4043(b) of ERISA) or of any
"prohibited transaction" (as such term is defined in Section 406
of ERISA and Section 4975(c) of the Code) which circumstances,
reportable event or prohibited transaction has occurred and which
could reasonably be expected to result in any tax or liability
material to Moxham on a consolidated basis. All such Plans have
assets valued at fair market value which are equal to 110% of the
accumulated benefit obligations (as calculated on a termination
basis using the actuarial assumptions set forth in the respective
plans and the interest rate for immediate annuities as published
by the PBGC and in effect for terminations in November, 1995
under such Plans).
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(n) Representations Not Misleading. No representation or
warranty by Moxham in this Reorganization Agreement contains, and
no written statement, exhibit or schedule furnished to BT
Financial by or on behalf of Moxham or any of its Subsidiaries
under this Reorganization Agreement will contain as of the date
thereof, any untrue statement of a material fact or omits, or
will omit, to state a material fact necessary to make the
statements contained herein or therein not misleading in any
material respect, when taken as a whole.
(o) Information Supplied. None of the information
supplied or to be supplied by Moxham for inclusion or
incorporation by reference in
(i) the Registration Statement will, at the time the
S-4 is filed with the SEC and at the time it becomes effective
under the Securities Act, contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, and
(ii) the Prospectus/Proxy Statement will, at the date
of mailing to stockholders and at the times of the meetings of
stockholders to be held in connection with the Merger, contain
any untrue statement of a material fact or omit 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. The Prospectus/Proxy
Statement (except for such portions thereof that relate only to
BT Financial) will comply as to form in all material respects
with the requirements of the Exchange Act and the rules and
regulations of the SEC thereunder.
(p) Accounting Matters. Neither Moxham nor any of its
Subsidiaries, has through the date hereof taken or agreed to take
any action that would prevent BT Financial from accounting for
the business combination to be effected by the Merger as a
"pooling of interests".
(q) Certain Agreements. Except as disclosed in the
Moxham SEC Documents filed prior to the date of this Agreement or
as disclosed in writing to the other party prior to the date
hereof and except for this Agreement, as of the date of this
Agreement, neither Moxham nor any of its Subsidiaries is a party
to any oral or written
(i) consulting agreement not terminable on six months
or less notice involving the payment of more than $50,000 per
annum;
(ii) collective bargaining agreement covering any
employees in the United States;
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(iii) employment agreement with any director, officer
or employee of Moxham or Subsidiary of Moxham;
(iv) other agreement with any director, officer or
other employee of Moxham or any Subsidiary of Moxham the benefits
of which are contingent, or the terms of which are materially
altered, upon the occurrence of a transaction involving Moxham,
Moxham Bank or FNB Garrett of the nature contemplated by this
Agreement, except for Moxham's Executive Retirement Plan, as
amended through December 12, 1995; or
(v) agreement or plan, including any stock option
plan, stock appreciation rights 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.
(r) Agreements with Bank Regulators. Neither Moxham nor
any of its Subsidiaries is a party to any written agreement or
memorandum of understanding with, or a party to any commitment
letter or similar undertaking to, or is subject to any order or
directive by, or is a recipient of any extraordinary supervisory
letter from, or has adopted any board resolutions at the request
of, any Bank Regulator which restricts materially the conduct of
its business, or in any manner relates to its capital adequacy,
its credit policies or its management, nor has Moxham been
advised by any Bank Regulator that it is contemplating issuing or
requesting (or is considering the appropriateness of issuing or
requesting) any such order, decree, agreement, memorandum of
understanding, extraordinary supervisory letter, commitment
letter or similar submission, or any such board resolutions.
(s) Loan Loss Reserve. The loan loss reserve maintained
by each of Moxham Bank and FNB Garrett for all loans in its
portfolio is adequate in all respects under the requirements of
generally accepted accounting principles and practices within the
financial institutions industry to cover all reasonably
anticipated risks of nonpayment with regard to the loan portfolio
of each of Moxham Bank and FNB Garrett.
(t) Fidelity Bonds. Each of Moxham Bank and FNB Garrett
has maintained continuously fidelity bonds insuring it against
acts of dishonesty by each of its employees in aggregate amounts
as are customary, usual and prudent for savings institutions of
its size, which coverage currently is $ 2,000,000. Since
December 31, 1994 there have been no claims under such bonds, and
Moxham is not aware of any facts which would form the basis of a
claim under such bonds. Moxham has no reason to believe that its
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fidelity coverage will not continue to be available on
substantially the same terms as its existing coverage.
4.2. Representations and Warranties of BT Financial. BT
Financial represents and warrants to Moxham as follows:
(a) Organization and Capitalization. BT Financial is a
corporation duly organized, validly existing and in good standing
under the laws of the Commonwealth of Pennsylvania and has full
power and authority to carry on its business as it is now being
conducted and to carry out the transactions contemplated by this
Reorganization Agreement. The authorized capital stock of BT
Financial consists of 10,000,000 shares of common stock, par
value $5 per share, of which 3,826,581 shares are issued and
outstanding as of the date hereof and no shares are held in the
treasury of BT Financial, and 2,000,000 shares of preferred
stock, of which no shares are issued and outstanding. All issued
and outstanding shares of BT Financial Common Stock are validly
issued, fully paid and nonassessable. There is no subscription,
option, warrant, call, right, stock appreciation right or
commitment of any kind obligating BT Financial to issue any of
its stock or to acquire any of its stock under any circumstances
or to pay cash on account of stock appreciation.
(b) Authority for Transactions. This Reorganization
Agreement has been, and the Articles of Merger and the
Certificate of Merger, when executed and delivered, will have
been, duly and validly authorized, executed and delivered by BT
Financial, subject only to the approval of the stockholders of BT
Financial and Moxham, the DOB and the Federal Reserve Board, and
constitutes the valid and binding obligations of BT Financial and
are and will be enforceable in accordance with their respective
terms.
(c) No Conflicts. Neither the execution, delivery and
performance of this Reorganization Agreement by BT Financial nor
the consummation of the Transactions nor compliance by BT
Financial with any of the provisions hereof will
(i) violate, or conflict with, or result in a breach
of any provisions of, or constitute a default (or an event which,
with notice or lapse of time or both, would constitute a default)
under, or result in the termination of, or accelerate the
performance required by, or result in a right of termination or
acceleration under, or result in the creation of any lien,
security interest, charge or encumbrance upon any of the
properties or assets of BT Financial or any of its Subsidiaries
under any of the terms, conditions or provisions of, (A) the
articles of incorporation or bylaws, as amended, of BT Financial
or any of its Subsidiaries or (B) any note, bond, mortgage,
indenture, deed of trust, license, lease, agreement or other
instrument or obligation to which BT Financial or any of its
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Subsidiaries is a party or by which either of them is bound or to
which any of their respective properties or assets may be
subject, or
(ii) violate any judgment, ruling, order, writ,
injunction, decree, statute, rule or regulation applicable to
them or any of their respective properties or assets.
(d) Consents and Approvals. No consents or approvals of
or filings or registrations with any third party or any public
body, agency or authority are necessary in connection with the
execution and delivery by BT Financial of this Reorganization
Agreement, its performance of the transactions contemplated
hereby and consummation of the transactions contemplated hereby
except for
(i) the filing with any federal or state governmental
authority of a Prospectus/Proxy Statement, a Registration
Statement and any other applicable securities filings relating to
the issuance of BT Financial Common Stock and the meetings of the
stockholders of Moxham and BT Financial, respectively, at which
the Merger is to be considered;
(ii) the approval of the Federal Reserve Board and
the DOB of BT Financial's acquisition of all of the issued and
outstanding shares of Moxham;
(iii) the approval of the stockholders of Moxham;
(iv) the approval of the stockholders of BT
Financial;
(v) the obtaining of any necessary third party
consents ; and
(vi) the expiration of any regulatory waiting period.
(e) SEC Documents. BT Financial has made available to
Moxham a true and complete copy of each report, schedule,
registration statement and definitive proxy statement filed by BT
Financial with the SEC (other than reports filed pursuant to
Section 13(d) or 13(g) of the Exchange Act) since December 31,
1993 (as such documents have since the time of their filing been
amended, the "BT Financial SEC Documents"), which are all the
documents (other than preliminary material and reports required
pursuant to Section 13(d) or 13(g) of the Exchange Act) that BT
Financial was required to file with the SEC since that date. As
of their respective dates of filing with the SEC, the BT
Financial SEC Documents complied in all material respects with
the requirements of the Securities Act, or the Exchange Act, as
the case may be, and the rules and regulations of the SEC
thereunder applicable to such BT Financial SEC Documents, and did
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not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances
under which they were made, not misleading. The financial
statements of BT Financial included in the BT Financial SEC
Documents complied as to form, as of their respective dates of
filing with the SEC, in all material respects with applicable
accounting requirements and with the published rules and
regulations of the SEC with respect thereto, have been prepared
in accordance with generally accepted accounting principles
applied on a consistent basis during the periods involved (except
as may be indicated in the notes thereto or, in the case of the
unaudited statements, as permitted by Form 10-Q of the SEC) and
fairly present in all material respects the consolidated
financial position of BT Financial and its consolidated
Subsidiaries as at the dates thereof and the consolidated results
of operations, changes in stockholders' equity and cash flows of
such companies for the periods then ended. All material
agreements, contracts and other documents required to be filed as
exhibits to any of the BT Financial SEC Documents have been so
filed.
(f) Subsidiaries. Exhibit 21 to BT Financial's Annual
Report on Form 10-K for the fiscal year ended December 31, 1994
includes all the Subsidiaries of BT Financial as of the date of
this Agreement. BT Financial owns, directly or indirectly,
beneficially and of record 100% of the issued and outstanding
voting securities of each such Subsidiary. Each of BT
Financial's Subsidiaries that is a bank (as defined in the Bank
Holding Company Act) is an "insured bank" as defined in the FDIA
and applicable regulations thereunder. All of the shares of
capital stock of each of the Subsidiaries held by BT Financial
Subsidiary are fully paid and nonassessable and are owned by BT
Financial or a Subsidiary of BT Financial free and clear of any
claim, lien or encumbrance.
(g) Absence of Certain Changes or Events. Except as
disclosed in the BT Financial SEC Documents filed prior to the
date of this Agreement, since December 31, 1994, BT Financial and
its Subsidiaries have not incurred any material liability, except
in the ordinary course of their businesses consistent with their
past practices, nor has there been any change, or any event
involving a prospective change, in the business, financial
condition or results of operations of BT Financial or any of its
Subsidiaries which has had, or is reasonably likely to have, a
material adverse effect on BT Financial, and BT Financial and its
Subsidiaries have conducted their respective businesses in the
ordinary course consistent with their past practices.
(h) Representations Not Misleading. No representation or
warranty by BT Financial in this Reorganization Agreement
contains, and no written statement, exhibit or schedule furnished
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to Moxham by or on behalf of BT Financial or any of its
Subsidiaries under this Reorganization Agreement will contain as
of the date thereof, any untrue statement of a material fact or
omits, or will omit, to state a material fact necessary to make
the statements contained herein or therein not misleading in any
material respect, when taken as a whole.
(i) Information Supplied. None of the information
supplied or to be supplied by BT Financial for inclusion or
incorporation by reference in
(i) the Registration Statement will, at the time the
S-4 is filed with the SEC and at the time it becomes effective
under the Securities Act, contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, and
(ii) the Prospectus/Proxy Statement will, at the date
of mailing to stockholders and at the times of the meetings of
stockholders to be held in connection with the Merger, contain
any untrue statement of a material fact or omit 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. The Prospectus/Proxy
Statement (except for such portions thereof that relate only to
Moxham) will comply as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations of
the SEC thereunder.
(j) Accounting Matters. Neither BT Financial nor any of
its Subsidiaries, has through the date hereof taken or agreed to
take any action that would prevent BT Financial from accounting
for the business combination to be effected by the Merger as a
"pooling of interests".
(k) Employment Matters. BT Financial intends to offer the
following employees of Moxham or its Subsidiaries employment at
will with BT Financial or its Subsidiaries with salaries and
benefits commensurate with the salaries and benefits available to
employees in comparable positions at BT Financial or its
Subsidiaries, as the case may be: Messrs. J.W. Smith, R.G. Case,
P.J. Hayes, R.L. Hackett, R.W. Brant, S.C. Witt, Ms. S.F. Joseph
and Mr. H.E. Hudnall.
4.3. Covenants of Moxham. Moxham hereby covenants and
agrees that:
(a) Access to Corporate Records. Until the Closing Date,
Moxham and its Subsidiaries shall give BT Financial and its
representatives full access during normal business hours to all
their property, documents, contracts and records and such
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information with respect to their business affairs and properties
as BT Financial from time to time may reasonably request;
provided, however, that neither Moxham nor its Subsidiaries shall
be required to give such access or information to the extent that
it is prohibited therefrom by a rule, regulation or order of any
regulatory body. All documents, contracts, records or
information obtained pursuant to this Section 4.3(a) shall be and
remain subject to the confidentiality provisions of Section 2.8
of this Reorganization Agreement. Moxham shall immediately
notify BT Financial of any amendment to or modification of any
forecasts previously delivered to BT Financial.
(b) Financial Statements and Internal Audit Reports.
Moxham shall promptly provide BT Financial with copies of its
annual, quarterly and monthly financial statements for the
periods ending between the date of this Reorganization Agreement
and the Effective Time. Moxham shall promptly forward to BT
Financial copies of Moxham's periodic internal audit reports.
Moxham shall also promptly provide or permit inspection of all
reports filed by it or any of its Subsidiaries during such period
with the OCC or the Federal Reserve Board and copies of all
notices or reports sent to its stockholders to the extent
permitted by law and all notices, reports, and review letters
received from the OCC or the Federal Reserve Board. Until the
Closing Date, Moxham will provide copies of all such financial
statements and notices, reports and review letters to BT
Financial on a prompt and timely basis.
(c) Negative Covenants - Conduct of Business. Except
with the prior written consent of BT Financial, neither Moxham
nor any of its Subsidiaries shall, on or after the date hereof:
(i) issue any capital notes or shares of its capital
stock, declare or distribute any stock dividend, authorize a
stock split, or authorize, issue or make any other distribution
of, on, or with respect to, its capital stock, except
(A) up to 74,722 shares of Moxham Common Stock
may be issued after December 31, 1994 in connection with Moxham's
Dividend Reinvestment Plan;
(B) Moxham may pay regular quarterly dividends
in an amount not to exceed $.16 per share of Moxham Common Stock
and $2.00 per share of Moxham Preferred Stock;
(C) issuance of Moxham Common Stock upon
conversion of Moxham Preferred Stock.
(ii) merge with, consolidate with, sell its assets
to, or acquire substantially all the assets of, any other
corporation, bank or person, or enter into any other transaction
not in the ordinary course of business;
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(iii) make any direct or indirect redemption,
purchase or other acquisition of any of its capital stock;
(iv) create any pension or profit sharing plan,
bonus, deferred compensation, death benefit or retirement plan,
or any other fringe benefit, enter into any employment contract
(written or otherwise), or grant any bonuses to any officer,
director or employee;
(v) amend its articles of incorporation or bylaws
except as may be necessary to consummate the transactions
contemplated by this Reorganization Agreement or as required by
law;
(vi) incur any liability or obligation or make any
commitment or disbursement, acquire or dispose of any property or
asset, make any contract or agreement, or engage in any
transaction, except in the ordinary course of business;
(vii) increase the rate of compensation of any
director, officer, employee or agent or enter into any agreement
to increase the rate of compensation of any director, officer or
employee, other than normal increases in the ordinary course of
business and consistent with past practice;
(viii) intentionally do anything or intentionally
fail to do anything which will cause a breach or a default under
any contract, agreement, commitment or obligation to which it is
a party or by which it may be bound;
(ix) except for securities transactions effected in
the ordinary course of business with the prior consent of BT
Financial (which consent shall not be unreasonably withheld),
make any capital expenditures in excess of $ 25,000 in the
aggregate; or modify or extend any service bureau contracts,
hardware/software maintenance agreements, lease agreements or
other contracts that involve annual payments by Moxham or any of
its Subsidiaries that exceed $ 5,000 per contract or $ 20,000 in
the aggregate;
(x) change its lending, borrowing, investment,
asset/liability management or other material banking policies in
any material respect except as may be required by changes in
applicable law, regulation or regulatory directives, except that,
in connection with the closing of the transactions contemplated
hereby, Moxham shall, and it shall cause its Subsidiaries to,
cooperate in good faith with BT Financial to adopt policies,
practices and procedures consistent with those utilized by BT
Financial and its Subsidiaries;
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(xi) open, close or move any of the branch offices of
Moxham Bank or FNB Garrett except for the pending sale of
Moxham's Salem 22 Plaza office;
(xii) purchase any securities, including, without
limitation, mortgage-backed securities, at a price approximately
fifty basis points above or below the face value of such
securities.
(d) Notice of Changes. Until the Effective Time, Moxham
and its Subsidiaries shall give BT Financial prompt written
notice of any change or inaccuracies in any data previously given
or made available to BT Financial pursuant to this Reorganization
Agreement.
(e) Acquisition Proposals. Neither Moxham nor any of its
Subsidiaries nor any of its officers and directors or the
directors and officers of its Subsidiaries nor any of its other
affiliates (as defined in Rule 12b-2 under the Exchange Act)
(each, an "Affiliate") shall, and Moxham shall cause it and its
Subsidiaries' employees, agents and representatives (including,
without limitation, any investment banking, legal or accounting
firm retained by Moxham or any of its Subsidiaries and any
individual member or employee of the foregoing) (each, an
"Agent") not to,
(i) initiate, solicit or encourage, directly or
indirectly, any inquiries or the making or implementation of any
proposal or offer (including, without limitation, any proposal or
offer to its respective stockholders or any of them) with respect
to a merger, acquisition, consolidation, recapitalization,
liquidation, dissolution or similar transaction involving, or any
purchase of all or a substantial portion of the assets or equity
securities of, it or any of its Subsidiaries (any such proposal
or offer being hereinafter referred to as an "Acquisition
Proposal") or
(ii) engage in any negotiations concerning, or
provide any confidential information or data to, or have any
discussions with, any person relating to an Acquisition Proposal,
or
(iii) otherwise cooperate in any effort or attempt to
make, implement or accept an Acquisition Proposal.
Moxham shall notify BT Financial immediately if any inquiries,
proposals or offers related to an Acquisition Proposal are
received by, any confidential information or data is requested
from, or any negotiations or discussions related to an
Acquisition Proposal are sought to be initiated or continued with
it or any individual or entity referred to in the first sentence
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of this Section 4.3(e), and of the terms and other details of any
such Acquisition Proposal or request.
4.4. Covenants of Both Parties. Both of the Parties
covenants and agrees that:
(a) Conduct of Business. From and after the date hereof
and until the Closing Date, each Party shall, and shall cause
each of its Subsidiaries to:
(i) carry on its business diligently and
substantially in the same manner as heretofore and, except as
otherwise provided in this Reorganization Agreement, will not
institute any unusual or novel methods of management or operation
of its properties or business;
(ii) maintain its books and records in the usual,
ordinary and normal course;
(iii) promptly advise the other Party in writing of
(A) the initiation of any litigation of any kind against it or
any litigation by it and (B) the happening of any event which in
the reasonable belief of its management may have an adverse
effect on either Moxham on a consolidated basis or BT Financial
on a consolidated basis, as the case may be;
(iv) continue in effect its present insurance
coverage at the present levels on all properties, assets,
business and personnel;
(v) use its best efforts to preserve its business
organization intact, to keep available its present employees, to
preserve its relationships with customers and others having
business dealings with it and to maintain all of its tangible
property in customary repair, order and condition (reasonable
wear and tear excepted); and
(vi) ensure that its executive officers shall meet
periodically with the executive officers of the other Party to
exchange information on their respective institutions, and to
facilitate an orderly transition following the Closing Date.
(b) Best Efforts. Each of Moxham and BT Financial
shall, and shall cause its Subsidiaries to, use all reasonable
efforts:
(i) to take, or cause to be taken, all actions
necessary to comply promptly with all legal requirements which
may be imposed on such party or its Subsidiaries with respect to
the Merger and to consummate the transactions contemplated by
this Agreement as promptly as practicable, subject to the
appropriate vote of stockholders of Moxham and BT Financial; and
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(ii) to obtain (and to cooperate with the other Party
to obtain) any consent, authorization, order or approval of, or
any exemption by, any Governmental Entity and or any other public
or private third party which is required to be obtained or made
by such Party or any of its Subsidiaries in connection with the
Merger and the transactions contemplated by this Agreement;
provided, however, that a Party shall not be obligated to take
any action pursuant to the foregoing if the taking of such action
or such compliance or the obtaining of such consent,
authorization, order, approval or exemption is likely, in such
Party's reasonable opinion, to result in a condition or
restriction on such Party or on BT Financial having an effect of
the type referred to in Section 4.1(g) or Section 4.2(g), as the
case may be. Each of Moxham and BT Financial will promptly
cooperate with and furnish information to the other in connection
with any such burden suffered by, or requirement imposed upon,
any of them or any of their Subsidiaries in connection with the
foregoing.
(c) Other Actions. No Party shall, or shall permit any
of its Subsidiaries to, intentionally take any action that would,
or reasonably might be expected to, result in any of its
representations and warranties set forth in this Agreement being
or becoming untrue, subject to such exceptions as do not have,
and would not reasonably be expected to have, individually or in
the aggregate, a material adverse effect on such Party or on the
BT Financial following the Effective Time, or in any of the
conditions to the Merger set forth in Article V not being
satisfied, or (unless such action is required by applicable law
or sound banking practice) which would adversely affect the
ability of any of them to obtain any of the Requisite Regulatory
Approvals without imposition of a condition or restriction which
would be unduly burdensome in the judgment of BT Financial.
(d) Accounting Methods. Neither BT Financial nor Moxham
shall change its methods of accounting in effect at December 31,
1994, except as required by changes in generally accepted
accounting principles as concurred in by such party's independent
auditors. Neither BT Financial nor Moxham will change its fiscal
year.
(e) Pooling and Tax-Free Reorganization Treatment.
Neither BT Financial nor Moxham shall, or shall permit any of its
Subsidiaries to, intentionally take or cause to be taken any
action, whether before or after the Effective Time, which would
disqualify the Merger and the Bank Merger as a "pooling of
interests" for accounting purposes or as a "reorganization"
within the meaning of Section 368(a) of the Code.
(f) Environmental Studies. Within forty-five days
following the date of this Reorganization Agreement, Moxham shall
cause to be completed by independent consultants that are
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acceptable to BT Financial, and, at Moxham's sole cost and
expense, a Phase I environmental assessment ("Phase I
assessment") and a structural site inspection, including a
written report thereof ("Site Inspection Report"), of each of
Moxham's Owned Real Property and shall deliver a copy of such
Phase I assessment to BT Financial. If BT Financial should
determine pursuant to the results of such Phase I assessment that
(i) there has been any storage, discharge, disposal, release or
emission of any Hazardous Substance in, on or from any Owned Real
Property and (ii) BT Financial reasonably believes that it could
become responsible for the remediation of such storage,
discharge, disposal, release or emission or become liable for
monetary damages resulting therefrom, then BT Financial shall
inform Moxham in writing with specificity within fifteen business
days of BT Financial's receipt of the Phase I assessment.
Further, if BT Financial should determine pursuant to the results
of the Site Inspection Report that any of the Owned Real Property
is structurally damaged, BT Financial shall inform Moxham in
writing within fifteen business days' receipt of the Site
Inspection Report of the specific structural damage to the Owned
Real Property. Upon receipt of a notice from BT Financial in
connection with the Phase I assessment or Site Inspection Report,
Moxham shall, at its sole cost and expense (subject to the
limitation set forth below), take necessary actions to correct
the specific defects set forth in the notice. Upon completion of
such corrective action to the satisfaction of BT Financial, or
Moxham's proving to BT Financial that BT Financial would not be
responsible for remediation or be liable for monetary damages
(unless, in BT Financial's reasonable opinion, the results of the
Phase I assessment or the Site Inspection Report would materially
adversely affect the marketability of said property), BT
Financial shall remove any objection it may have with respect to
that certain parcel of Owned Real Property and proceed promptly
toward Closing. If the costs to remedy the specific defects set
forth in the Phase I assessment or Site Inspection Report are
anticipated to exceed $100,000 in the aggregate, BT Financial, in
its sole discretion, may terminate this Reorganization Agreement.
4.5. Covenants of BT Financial. BT Financial hereby
covenants and agrees that:
(a) Access to Corporate Records. Until the Closing Date,
BT Financial shall give Moxham and its representatives full
access during normal business hours to all its property,
documents, contracts and records and such information with
respect to its business affairs and properties (in each case
including those of its Subsidiaries) as Moxham from time to time
may reasonably request; provided, however, that BT Financial
shall not be required to give such access or information to the
extent that it is prohibited therefrom by a rule, regulation or
order of any regulatory body. All documents, contracts, records
or information obtained pursuant to this Section 4.5(a) shall be
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and remain subject to the confidentiality provisions of Section
2.8 of this Reorganization Agreement.
(b) Financial Statements. BT Financial shall promptly
provide Moxham with copies of its annual and quarterly financial
statements, as included in its reports on Form 10-K or 10-Q,
respectively, as filed with the SEC pursuant to the requirements
of the Exchange Act, for the periods ending between the date of
this Reorganization Agreement and the Effective Time. Until the
Closing Date, BT Financial will provide copies of any reports it
files with the SEC under the Exchange Act to Moxham on a prompt
and timely basis.
(c) Notice of Changes. Until the Effective Time, BT
Financial shall give Moxham prompt written notice of any material
change or inaccuracies in any data previously given or made
available to Moxham pursuant to this Reorganization Agreement.
(d) Employee Matters.
(i) As of the Effective Time, BT Financial and its
Subsidiaries shall attempt to cause all persons who are employed
by Moxham and/or any of its Subsidiaries on such date to be
employed by Subsidiaries of BT Financial and, as soon as
practicable after the Effective Time, with benefits which in the
aggregate are no less favorable than those generally afforded to
other employees of BT Financial or its Subsidiary providing such
employment. Prior service with Moxham or its Subsidiaries shall
not be considered for purposes of determining eligibility for or
vesting of such employee benefits, nor for any other purpose.
This Section 4.5(d) shall not be construed
(A) to limit the ability of BT Financial and
its Subsidiaries to terminate the employment of any employee or
to review employee benefits programs from time to time and to
make such changes as they deem appropriate or
(B) to require BT Financial or its Subsidiaries
to provide employees or former employees with post-retirement
medical benefits.
Any employee who has the benefit of an employment or severance
agreement who shall be offered employment by BT Financial or any
BT Financial Subsidiary and who shall accept such employment
shall be required, as a condition to such employment, to agree in
writing to the termination of such agreement from and after the
Effective Time.
(ii) any full-time employee of Moxham or any Moxham
Subsidiary whose employment is terminated, other than for cause,
by BT Financial or Johnstown Bank, as the case may be, within six
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months after the Effective Time, and not offered a comparable job
with BT Financial or a Subsidiary of BT Financial, will be paid,
in addition to accrued vacation pay, sick leave and other similar
amounts customarily paid by such person's employer, severance pay
equal to one week's W-2 compensation multiplied by each year of
service with Moxham or any Moxham Subsidiary not exceeding three
months salary for any employee having less than 15 years of
continuous service as a full-time employee of Moxham and its
Subsidiaries and their respective predecessors and not exceeding
six months salary for any employee having 15 or more years of
such continuous service. For purposes of this section, a job
shall not be considered comparable if it requires the employee to
work less than 30 hours per week or is at a location more than 45
miles from an employee's office of employment as of the date of
this Reorganization Agreement.
(e) Indemnification of Moxham Officers and Directors.
After the Effective Time, BT Financial, as successor to Moxham,
shall indemnify and hold harmless any former directors, officers,
employees or agents of either Moxham, FNB Garrett or Moxham Bank
who have rights to indemnification under the articles of
incorporation and bylaws of Moxham, FNB Garrett or Moxham Bank,
as the case may be, and the BCL from and against any and all
claims, losses, liabilities or damages arising out of or in
connection with any of their activities in such capacities or on
behalf of, or at the request of Moxham, FNB Garrett or Moxham
Bank prior to the Effective Time ("Claims") in accordance with
and to the extent required under the articles of incorporation
and bylaws of Moxham, FNB Garrett and Moxham Bank and the BCL.
Further, BT Financial shall be obligated to advance expenses
incurred with respect to the foregoing, as they are incurred, in
each case only to the extent such advances are required under the
articles of incorporation and bylaws of Moxham, FNB Garrett or
Moxham Bank as in effect on the date hereof and the BCL. The
obligations of BT Financial specified in the preceding sentences
shall survive the Merger and shall continue in full force and
effect following the Effective Time for a period of no more than
one year; provided, that all rights to indemnification in respect
of any Claim asserted or made within such period shall continue
until the final disposition of such Claim. BT Financial shall
provide officers and directors liability insurance coverage for
all former directors and officers of Moxham, FNB Garrett and
Moxham Bank, whether or not they become part of the BT Financial
organization after the Effective Time, to the same extent as such
coverage is provided to BT Financial's officers and directors for
a period of one year following the Effective Time. This section
shall not increase, in any manner, any liabilities or obligations
BT Financial would otherwise have as the successor by merger to
Moxham, nor does it increase any rights or grant any additional
rights to any former directors, officers, employees or agents of
Moxham, FNB Garrett or Moxham Bank.
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(f) Bank Regulatory Applications. As promptly as
practicable after the date hereof.
(i) BT Financial and/or its Subsidiaries, as
appropriate, shall submit any requisite applications for prior
approval of the transactions contemplated herein and in the Bank
Plan of Merger to the appropriate federal and state (if
applicable) financial institution regulatory authorities
depending upon the structure of the Merger and the Bank Merger,
(ii) BT Financial shall submit an application for
prior approval of the Bank Merger to the Federal Reserve Board
pursuant to the Bank Merger Act and Section 5(d)(3) of the FDIA,
(iii) each of the Parties hereto shall, and they
shall cause their respective Subsidiaries to, submit any
applications, notices or other filings to any other state or
federal government agency, department or body the approval of
which is required for consummation of the Merger and the Bank
Merger. Moxham and BT Financial each represents and warrants to
the other that all information concerning it, its Subsidiaries
and their respective directors, officers, stockholders and
Subsidiaries included (or submitted for inclusion) in any such
application shall be true, correct and complete in all material
respects.
ARTICLE V
CONDITIONS PRECEDENT
5.1. Conditions Precedent to the Obligations of BT
Financial. The obligations of BT Financial to consummate the
transactions contemplated by this Reorganization Agreement shall
be subject to the satisfaction, on or before the Closing Date, of
each and every one of the following conditions, all or any of
which may be waived, in whole or in part, by BT Financial to the
extent permitted by law:
(a) Performance of Covenants. Each of the acts and
undertakings to be performed by Moxham hereunder on or before the
Closing Date shall have been duly performed; and the Chief
Executive Officer of Moxham shall have executed and delivered to
BT Financial a certificate, dated as of the Closing Date, to that
effect.
(b) Representations True at Closing. The representations
and warranties made by Moxham herein shall be true and correct in
all material respects on the Closing Date with the same force and
effect as though such representations and warranties had been
made on and as of such time (or as of the date when made in the
case of any representation and warranty which specifically
relates to an earlier date), and the Chief Executive Officer of
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Moxham shall have executed and delivered to BT Financial a
certificate, dated as of the Closing Date, to that effect.
(c) Certified Resolutions. Moxham shall have furnished
BT Financial with a certified copy of resolutions duly adopted by
its Board of Directors and stockholders authorizing and approving
this Reorganization Agreement and the transactions contemplated
hereby and thereby.
(d) Moxham Shareholder Approval. This Reorganization
Agreement shall have been approved by
(i) the affirmative vote of the holders of seventy
percent (70%) of the outstanding shares of Moxham Common Stock,
and
(ii) the affirmative vote of a majority of the
holders of Moxham Preferred Stock entitled to vote thereon.
(e) Government Approvals and Other Consents. BT
Financial, Moxham and their Subsidiaries shall have received in
form and substance satisfactory to BT Financial all necessary
federal and state governmental and regulatory approvals and other
consents necessary to permit consummation of the Merger and the
Bank Merger (including but not limited to approvals of the FDIC,
the Federal Reserve Board, the DOB or other applicable federal
regulatory agency and the stockholders of Moxham and the
stockholders of BT Financial). No such approvals and consents
shall require BT Financial or such Subsidiary to enter into any
agreement or stipulation that is inconsistent with prior OCC, DOB
or Federal Reserve Board practice or procedure, and all
applicable waiting periods required by law shall have expired or
elapsed.
(f) No Injunction. No action, proceeding, regulation or
legislation shall have been instituted or threatened before any
court, governmental agency or legislative body to enjoin,
restrain or prohibit, or to obtain substantial damages in respect
of, or which is related to or arises out of, this Reorganization
Agreement, the consummation of the transactions contemplated
hereby or the Bank Merger, which, in the good faith judgment of
BT Financial, would make it inadvisable to consummate such
transactions.
(g) No Material Misstatements or Omissions. BT Financial
shall not have discovered any material error, misstatement or
omission in any of the representations or warranties of Moxham
contained in this Reorganization Agreement or in any
certification or information furnished in writing or to be
furnished in writing to BT Financial hereunder, or in the
information to be furnished by Moxham and contained in the
Registration Statement or any material failure to perform or
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<PAGE>
satisfy any covenants of Moxham and its Subsidiaries contained
herein.
(h) Changes in Financial Condition. Since September 30,
1995, there shall not have occurred any material adverse change
in the business, financial condition, results of operations or
prospects of Moxham on a consolidated basis, other than changes
resulting from or attributable to changes in laws or regulations,
generally accepted accounting principles, or interpretations
thereof, that affect Moxham's industry generally.
(i) Registration Statement. The Registration Statement
covering the shares of BT Financial Common Stock to be issued to
the stockholders of Moxham under this Reorganization Agreement
shall have been declared effective by the SEC, shall be exempt or
declared effective in each state having jurisdiction thereon, and
no stop order proceeding shall be pending or threatened with
respect thereto.
(j) Opinion of Counsel. An opinion of Plowman, Spiegel &
Lewis, P.C., counsel for Moxham, FNB Garrett and Moxham Bank,
shall have been delivered to BT Financial, dated the Closing
Date, and in form and substance satisfactory to BT Financial and
its counsel, as to the matters set forth in Sections 4.1(a)
through (e) inclusive. In expressing such opinion, counsel may
rely on opinions of other counsel to Moxham and its Subsidiaries,
certificates of officers and other representatives of Moxham and
its Subsidiaries as to matters of fact and certificates of public
officials as to matters within their jurisdiction.
(k) Fairness Opinion. BT Financial shall have received a
fairness opinion from Berwind Financial Group, L.P. its financial
advisor, as of the date of the mailing of the Prospectus/Proxy
Statement to its stockholders, in form and substance satisfactory
to BT Financial, to the effect that the Merger is fair, from a
financial point of view, to the stockholders of BT Financial
based upon the market price of the BT Financial Common Stock as
of the date of such opinion.
(l) Accounting Opinion. BT Financial shall have received
an opinion from Coopers & Lybrand L.L.P. as of the Closing Date
that the Merger shall be accounted for as a pooling of interests
in accordance with generally accepted accounting principles.
(m) BT Financial Shareholder Approval. This
Reorganization Agreement shall have been approved by the
affirmative vote of the majority of votes cast by all holders of
BT Financial Common Stock entitled to vote thereon.
(n) Tax Ruling or Opinion. BT Financial shall have
received a Private Letter Ruling from the Service or an opinion
of Kirkpatrick & Lockhart LLP, counsel to BT Financial, in form
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<PAGE>
and substance reasonably satisfactory to BT Financial, dated as
of the Closing Date, substantially to the effect that, on the
basis of facts, representations and assumptions set forth in such
opinion, the Merger will be treated for Federal income tax
purposes as a reorganization within the meaning of Section 368 of
the Code and that accordingly:
(i) No gain or loss will be recognized by BT
Financial or Moxham as a result of the Merger; and
(ii) No gain or loss will be recognized by the
stockholders of Moxham who or which exchange their Moxham Common
Stock solely for BT Financial Common Stock pursuant to the Merger
(except with respect to cash received in lieu of a fractional
share interest in BT Financial Common Stock).
In rendering such opinion, Kirkpatrick & Lockhart LLP may require
and rely upon representations contained in certificates of
officers of BT Financial, Moxham and others.
(o) Dissenters' Shares. The number of Dissenters' Shares
(treating all Moxham Preferred Stock shares as if they had
converted into Moxham Common Stock) as of the Closing Date shall
be less than 10% of the issued and outstanding shares of Moxham
Common Stock.
5.2. Conditions Precedent to the Obligations of Moxham.
The obligations of Moxham to consummate the transactions
contemplated by this Reorganization Agreement shall be subject to
the satisfaction, on or before the Closing Date, of each and
every one of the following conditions, all or any of which may be
waived, in whole or in part, by Moxham to the extent permitted by
law:
(a) Performance of Covenants. Each of the acts and
undertakings to be performed by BT Financial hereunder on or
before the Closing Date shall have been duly performed; and the
Chief Executive Officer of BT Financial shall have executed and
delivered to Moxham a certificate, dated as of the Closing Date,
to that effect.
(b) Representations True at Closing. The representations
and warranties made by BT Financial herein shall be true and
correct in all material respects on the Closing Date with the
same force and effect as though such representations and
warranties had been made on and as of such time (or as of the
date when made in the case of any representation and warranty
which specifically relates to an earlier date), except for the
issuance of additional shares of BT Financial Common Stock or
preferred stock, and the Chief Executive Officer of BT Financial
shall have executed and delivered to Moxham a certificate, dated
as of the Closing Date, to that effect.
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<PAGE>
(c) Certified Resolutions. BT Financial shall have
furnished Moxham with a certified copy of resolutions duly
adopted by the Board of Directors of BT Financial authorizing
this Reorganization Agreement and the transactions contemplated
hereby.
(d) BT Financial Shareholder Approval. This
Reorganization Agreement shall have been approved by the
affirmative vote of the majority of votes cast by all holders of
BT Financial Common Stock entitled to vote thereon.
(e) Government Approvals and Other Consents. BT
Financial and Moxham shall have received all necessary federal
and state governmental and regulatory approvals, stockholder and
stockholder approvals and other consents necessary to permit
consummation of the Merger, the Bank Merger (including but not
limited to approvals of the Federal Reserve Board and the DOB and
the stockholders of Moxham and the stockholders of BT Financial),
and all applicable waiting periods required by law shall have
expired or elapsed.
(f) No Injunction. No injunction shall have been issued
by any court or governmental agency which prohibits or restricts
the consummation of the transactions contemplated by this
Reorganization Agreement which, in the good faith judgment of
Moxham, would make it inadvisable to consummate such
transactions.
(g) No Material Misstatements or Omissions. Moxham shall
not have discovered any material error, misstatement or omission
in any of the representations or warranties of BT Financial
contained in this Reorganization Agreement or in any
certification or information furnished in writing or to be
furnished in writing to Moxham hereunder, or in the information
to be furnished by BT Financial and contained in the
Prospectus/Proxy Statement furnished to the stockholders of
Moxham in connection with the Merger or any material failure to
perform or satisfy any covenants of BT Financial contained
herein.
(h) Changes in Financial Condition. Since September 30,
1995, there shall not have occurred any material adverse change
in the financial condition of BT Financial on a consolidated
basis, other than changes resulting from or attributable to
changes in laws or regulations, generally accepted accounting
principles, or interpretations thereof, that affect BT
Financial's industry generally.
(i) Registration Statement. The Registration Statement
covering the shares of BT Financial Common Stock to be issued to
the stockholders of Moxham under this Reorganization Agreement
shall have been declared effective by the SEC, shall be exempt or
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<PAGE>
declared effective in each state having jurisdiction thereon, and
no stop order proceeding shall be pending or threatened with
respect thereto.
(j) Opinion of Counsel. An opinion of Kirkpatrick &
Lockhart LLP, counsel for BT Financial, shall have been delivered
to Moxham, dated the Closing Date, and in form and substance
satisfactory to Moxham and its counsel, as to the matters set
forth in Sections 4.2(a) through (e) inclusive. In expressing
such opinion, counsel may rely on opinions of other counsel to BT
Financial, certificates of officers and other representatives of
BT Financial as to matters of fact and certificates of public
officials as to matters within their jurisdiction.
(k) Fairness Opinion. Moxham shall have received, as of
the date of the mailing of the Prospectus/Proxy Statement to its
stockholders to consider and vote upon the Merger, an opinion
from Hopper Soliday & Co., its investment advisor, in form and
content satisfactory to Moxham, to the effect that the Merger is
fair, from a financial point of view, to the stockholders of
Moxham.
(l) Moxham Shareholder Approval. This Reorganization
Agreement shall have been approved by
(i) the affirmative vote of the holders of seventy
percent (70%) of the outstanding shares of Moxham Common Stock,
and
(ii) the affirmative vote of a majority of the
holders of Moxham Preferred Stock entitled to vote thereon.
(m) Tax Ruling or Opinion. Moxham shall have received a
Private Letter Ruling from the Service or an opinion of
Kirkpatrick & Lockhart LLP, counsel to BT Financial, in form and
substance reasonably satisfactory to Moxham, dated as of the
Closing Date, substantially to the effect that, on the basis of
facts, representations and assumptions set forth in such opinion,
the Merger will be treated for Federal income tax purposes as a
reorganization within the meaning of Section 368 of the Code and
that accordingly:
(i) No gain or loss will be recognized by BT
Financial or Moxham as a result of the Merger; and
(ii) No gain or loss will be recognized by the
stockholders of Moxham who or which exchange their Moxham Common
Stock solely for BT Financial Common Stock pursuant to the Merger
(except with respect to cash received in lieu of a fractional
share interest in BT Financial Common Stock).
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<PAGE>
In rendering such opinion, Kirkpatrick & Lockhart LLP may require
and rely upon representations contained in certificates of
officers of BT Financial, Moxham and others.
5.3. Waivers. A condition precedent as set forth in this
Article V shall be deemed to be satisfied if it has been
materially and reasonably satisfied, and no Party shall fail to
consummate the transactions described herein by reason of a
breach of any covenant or the failure to satisfy a condition
precedent unless such breach or failure is material to such
transactions as a whole. Any condition waived in writing by the
Party entitled to the benefit thereof shall thereafter cease to
be a condition precedent for purposes of this Article V.
ARTICLE VI
BROKERS AND EXPENSES
6.1. Brokers. Each Party represents and warrants to each
other Party that no broker or finder has acted for it in
connection with the execution and delivery of this Reorganization
Agreement or the transactions contemplated hereby, except for
Berwind Financial Group, L.P. on behalf of BT Financial and
Hopper Soliday & Co. on behalf of Moxham. Each Party shall be
indemnified and held harmless by the other from any claim, suit,
loss or expense resulting from a breach of the foregoing
representation and warranty.
6.2. Expenses. Except as provided in Section 2.7 hereof,
all expenses incurred by each Party in connection with or related
to the authorization, preparation and execution of this
Reorganization Agreement, the solicitation of stockholder and
stockholder approval and all other matters related to the closing
of the transactions contemplated hereby and thereby, including
without limiting the generality of the foregoing, all fees and
expenses of agents, representatives, counsel and accountants
employed by any such Party and the broker referred to in Section
6.1, shall be borne solely and entirely by the Party which has
incurred the same.
ARTICLE VII
MISCELLANEOUS
7.1. Further Assurances. From time to time as and when
requested by BT Financial, or its successors or assigns, Moxham,
or the officers and directors of Moxham last in office prior to
consummation of the Merger, shall execute and deliver such
further agreements, documents, deeds and other instruments and
shall take or cause to be taken such other actions, including
those as shall be necessary to vest or perfect in or to confirm
of record or otherwise in the Resulting Company title to and
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<PAGE>
possession of all the property, interests, assets, rights,
privileges, immunities, powers, franchises and authority of
Moxham as shall be necessary or advisable to carry out the
purposes of and effect the transactions contemplated by this
Reorganization Agreement.
7.2. Survival of Representations, Warranties and
Covenants. All representations, warranties and covenants in this
Reorganization Agreement or in any instrument delivered pursuant
hereto shall expire on, and be terminated and extinguished on,
the Closing Date, other than covenants that by their terms are to
survive or be performed after the Closing Date.
7.3. Notices. All notices, requests, demands, and other
communications hereunder shall be in writing and shall be deemed
to have been duly given if delivered or sent by first-class
registered or certified mail, postage prepaid, with return
receipt requested, as follows:
(a) If to Moxham to:
J. William Smith
President and Chief Executive
Moxham Bank Corporation
540 Central Avenue
Johnstown, PA 15902
with a copy to:
Charles B. Jarrett, Jr., Esquire
Plowman, Spiegel & Lewis, P.C.
Grant Building, Suite 230
Pittsburgh, PA 15219
(b) If to BT Financial, to:
John H. Anderson
Chairman and Chief Executive Officer
BT Financial Corporation
551 Main Street
Johnstown, PA 15901
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<PAGE>
with a copy to:
Dennis M. Sheedy, Esq.
Kirkpatrick & Lockhart LLP
1500 Oliver Building
Pittsburgh, PA 15222
or to such other address as any such person may designate in
writing to the other Parties at the addresses listed above, in
accordance with this Section.
7.4 Third Party Beneficiaries. Nothing contained in this
Reorganization Agreement, including without limitation Sections
4.2(k) and 4.5(d), shall be deemed to be a contract for
employment nor a guaranty or right to employment with BT
Financial or its Subsidiaries for any person, nor shall anything
contained in this Reorganization Agreement constitute an
agreement by BT Financial or its Subsidiaries not to revise,
amend, revoke, or terminate any employee benefit plan or
arrangement that it may in the future make available to its
employees. This Agreement is not intended to confer third party
beneficiary rights on any person not a Party to this Agreement,
except that each of the eight persons named in Section 4.2(k)
shall have the right to sue BT Financial for breach of the
representation contained in Section 4.2(k) but only as such
representation applies to such person; such right to sue shall
expire six months after the Closing Date.
7.5. Binding Effect. This Reorganization Agreement shall
be binding upon and inure to the benefit of the Parties hereto
and their respective successors and assigns. This Reorganization
Agreement may not be assigned by any Party without the express
written consent of the other Party.
7.6. Headings. The Article, Section, paragraph and other
headings in this Reorganization Agreement are inserted solely as
a matter of convenience and for reference and are not a part of
this Reorganization Agreement.
7.7. Counterparts. This Reorganization Agreement may be
executed in one or more counterparts, each of which shall be
deemed an original but all of which together shall constitute one
and the same instrument.
7.8. Integration. This Reorganization Agreement
constitutes the entire understanding of the Parties with respect
to the subject matter hereof and supersedes all prior agreements,
arrangements or communications, oral or written, between the
Parties hereto with respect to the subject matter hereunder.
This Reorganization Agreement may be changed, waived, discharged
or terminated only by an instrument in writing signed by the
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<PAGE>
Party against which the enforcement of such change, waiver,
discharge or termination is sought.
7.9. Amendments. Any of the terms or conditions of this
Reorganization Agreement may be waived at any time by the Party
which is entitled to the benefit thereof, or any of such terms or
conditions may be amended or modified in whole or in part at any
time before or after the vote of the stockholders of Moxham and
stockholders of BT Financial on this Reorganization Agreement to
the extent permitted by law by agreement in writing, executed in
the same manner as this Reorganization Agreement after
authorization to do so by the Board of Directors of each Party;
provided, however, that such action shall be taken only if, in
the judgment of the Boards of Directors of each Party taking the
action, such waiver or such amendment or modification will not
have a material adverse effect on the benefits intended under
this Reorganization Agreement to such Party and its stockholders,
unless this Reorganization Agreement, as modified, is resubmitted
to the stockholders for their approval.
7.10. Governing Law. This Reorganization Agreement shall
be governed by and construed and enforced in accordance with the
laws of the Commonwealth of Pennsylvania, without giving effect
to its provisions regarding conflict of law, and, where the
context so requires, under applicable federal law.
7.11. Incorporation by Reference. Any and all schedules,
exhibits, annexes, statements, reports, certificates or other
documents or instruments referred to herein or attached hereto
are incorporated herein by reference thereto as though fully set
forth at the point referred to in this Reorganization Agreement.
Remainder of Page Intentionally Left Blank
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<PAGE>
IN WITNESS HEREOF, each Party hereto has caused this
Reorganization Agreement to be executed on its behalf and its
corporate seal to be affixed hereto by its duly authorized
officers, all as of the day and year first above set forth.
ATTEST: Moxham Bank Corporation
______________________ By:_____________________________
Secretary
J. William Smith
President and Chief Executive
Officer
ATTEST: BT Financial Corporation
______________________________ By:__________________________
Secretary John H. Anderson
Chairman and Chief Executive
Officer
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<PAGE>
EXHIBIT A
BANK PLAN OF MERGER
THIS PLAN OF MERGER ("Plan of Merger"), dated as of January
__, 1996, is made by and between Johnstown Bank and Trust
Company, a Pennsylvania chartered bank ("Johnstown Bank"), and
The Moxham National Bank of Johnstown, a national banking
association ("Moxham"), The First National Bank of Garrett, a
national banking association ("Garrett") (Moxham and Garrett
being referred to herein as the "Moxham Banks").
WHEREAS, the Board of Directors of Johnstown Bank has
determined that it is desirable and in the best interests of
Johnstown Bank, its depositors and the community it serves that
Johnstown Bank merge with the Moxham Banks, with Johnstown Bank
remaining as the resulting institution thereafter, pursuant to
the terms and conditions hereof;
WHEREAS, the Boards of Directors of the Moxham Banks have
determined that it is desirable and in the best interests of each
of the Moxham Banks, their depositors and the community they
serve that the Moxham Banks merge with and into Johnstown Bank,
with Johnstown Bank remaining as the resulting institution
thereafter, pursuant to the terms and conditions hereof;
WHEREAS, BT Financial Corporation, the sole holder of all
the outstanding capital stock of Johnstown Bank, has authorized
and approved the merger of the Moxham Banks into Johnstown Bank
as herein provided for; and
WHEREAS, Moxham Bank Corporation, the sole holder of all of
the outstanding capital stock of each of the Moxham Banks, has
authorized and approved the merger of the Moxham Banks into
Johnstown Bank as herein provided for.
NOW, THEREFORE, in consideration of the mutual covenants set
forth below, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged,
Johnstown Bank and the Moxham Banks hereby agree as follows:
1. The Merger. Subject to and on the terms and conditions
set forth in this Plan of Merger, on the Effective Date (as
defined in Section 3 below) the Moxham Banks shall be merged
simultaneously with and into Johnstown Bank, with Johnstown Bank
remaining as the resulting institution (the "Resulting
Institution"), pursuant to the laws of the Commonwealth of
Pennsylvania (the "Merger"). On the Effective Date, the
following shall occur:
(a) the existence of each party to this Plan of
Merger, except the Resulting Institution, shall cease as a
<PAGE>
separate entity but shall continue in, and the parties to this
Plan of Merger shall be, a single corporation, which shall be the
Resulting Institution and which shall have without further act or
deed, all the property, rights, powers, duties and obligations of
each party to this Plan of Merger; and
(b) no liability of any party to this Plan of Merger,
or of its trustees, officers or directors shall be affected, nor
shall any lien on any property of a party to this Plan of Merger
be impaired, by the Merger. Any claim existing or action pending
by or against any party to this Plan of Merger may be prosecuted
to judgment as if the Merger had not taken place or the Resulting
Institution may be substituted in its place.
2. Regulatory Approvals. Notwithstanding any other
provision of this Plan of Merger, the Merger shall not be
effective unless and until approved by the Pennsylvania
Department of Banking (the "Department of Banking") and the Board
of Governors of the Federal Reserve System (the "FRB") (the
Department of Banking and the FRB are collectively referred to
herein as the "Regulators"). Johnstown Bank and the Moxham Banks
shall cooperate in the preparation and filing of an Application
for Merger ("Merger Application") with the Department of Banking
and all other applications, documents and instruments required or
necessary to be prepared and filed with the Regulators to obtain
approval of the Merger.
3. Effective Date. As used in this Plan of Merger,
"Effective Date" shall mean the close of business on any date
following the merger of Moxham Bank Corporation into BT Financial
Corporation on which the Articles of Merger executed by Johnstown
Bank and the Moxham Banks are filed with the Pennsylvania
Department of State (the "Articles of Merger").
4. Conversion of Shares. The Merger shall be effected as
follows:
(a) All shares of the common stock of the Moxham Banks
issued and outstanding or held in the treasury of the Moxham
Banks immediately before the Effective Date shall, by virtue of
the Merger and without any action by the holder of such shares or
by the Moxham Banks, be canceled and retired on the Effective
Date, and no cash, securities or other consideration shall be
paid or delivered in exchange for the Moxham Banks common stock.
(b) Each authorized and issued share of the capital stock
of Johnstown Bank shall remain outstanding.
5. Name of the Resulting Institution. The name of the
Resulting Institution shall be "Johnstown Bank and Trust
Company."
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<PAGE>
6. Articles of Incorporation and Bylaws. At the Effective
Date, the articles of incorporation and bylaws of Johnstown Bank
as in effect immediately prior to the Effective Date shall be the
articles of incorporation and bylaws of the Resulting
Institution.
7. Directors. The persons who shall constitute the Board
of Directors of Johnstown Bank immediately prior to the Merger
shall, on the Effective Date, be the Board of Directors of the
Resulting Institution. In addition, Charles T. Evans and seven
additional persons selected by mutual agreement of Johnstown Bank
and the Moxham Banks shall become directors of the Resulting
Institution on the Effective Date. Such Directors shall serve
until the 1997 annual meeting of Shareholders of the Resulting
Institution, or until their successors are duly elected and
qualified.
8. Officers. Each individual who was an officer of
Johnstown Bank immediately prior to the Merger shall, on the
Effective Date, become an officer of the Resulting Institution
with the same title as such individual had immediately before the
Merger. The officers of the Moxham Banks shall not become
officers of the Resulting Institution unless elected to office by
resolution of the Board of Directors of the Resulting Institution
after the Merger.
9. Conditions. The obligations of the parties hereto to
effect the Merger are subject to the following conditions, any or
all of which may be waived by agreement of the parties, except
that the conditions set forth in subsections (b) and (c) of this
Section 9 are not waivable:
(a) each party hereto shall have performed and
complied with in all material respects its covenants and
agreements contained herein; and
(b) the Merger Application shall have been approved or
deemed approved by the Department of Banking and all other
applications, documents and instruments required or necessary in
order to effect the consummation of the Merger shall have been
approved by the Regulators; and
(c) if any waiting period imposed by applicable state
or federal law or the regulations promulgated thereunder shall
remain unexpired upon the satisfaction of the last to be
satisfied of subsections (a) and (b) of this Section 9, such
waiting period shall have expired; and
(d) the merger of The Moxham Bank Corporation with and
into BT Financial Corporation shall have become effective.
A-3
<PAGE>
10. Termination. This Plan of Merger may be terminated
(the "Termination Date") prior to the Effective Date (i) by the
mutual consent of the Boards of Directors of Johnstown Bank and
the Moxham Banks and (ii) automatically if the Effective Date
does not occur on or before May 30, 1996, or such later date as
Johnstown Bank and the Moxham Banks may mutually agree.
11. Expenses. Each of Johnstown Bank and the Moxham Banks
shall pay its own costs and expenses incurred in connection with
the Merger.
12. Notices. All notices, waivers and other communications
by Johnstown Bank and the Moxham Banks hereunder shall be in
writing and shall be deemed to have been given when delivered in
person or sent by registered or certified mail, postage prepaid,
addressed as follows:
If to Johnstown Bank: Johnstown Bank and Trust Company
532-534 Main Street
Johnstown, PA 15901
Attention: President
If to Moxham Bank: The Moxham National Bank
540 Central Avenue
Johnstown, PA 15902
Attention: President
If to FNB Garrett: The First National Bank of Garrett
Jackson Street
P.O. Box 247
Garrett, PA 15542
Attention: President
13. Amendments. To the extent permitted by law, this Plan
of Merger may be amended only by a writing duly executed by the
parties hereto.
14. Successors. This Plan of Merger shall be binding on
the successors of Johnstown Bank and the Moxham Banks.
15. Counterparts. This Plan of Merger may be executed in
one or more counterparts, all of which shall be considered one
and the same Plan of Merger and each of which shall be deemed an
original.
16. Headings. The section headings contained in this Plan
of Merger are for convenience of reference only and shall not
affect in any way the meaning or interpretation of this Plan.
A-4
<PAGE>
17. Governing Law. This Plan of Merger shall be governed
by and construed in accordance with the laws of the Commonwealth
of Pennsylvania.
IN WITNESS WHEREOF, Johnstown Bank and the Moxham Banks have
caused this Plan of Merger to be duly executed as of the date
first above written.
ATTEST JOHNSTOWN BANK & TRUST COMPANY
By:__________________________ By:___________________________
Eric Rummel, President
ATTEST THE MOXHAM NATIONAL BANK
By:__________________________ By:___________________________
J. William Smith, President
and Chief Executive Officer
A-5
<PAGE>
ATTEST THE FIRST NATIONAL BANK OF
GARRETT
By:__________________________ By:___________________________
Stanley C. Witt, President and
Chief Executive Officer
A-6
