<PAGE> 1
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 10-KSB
ANNUAL REPORT PURSUANT UNDER 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934 [Fee Required]
For the Fiscal Year Ended December 31, 1996
Commission File No. 33-29708
- --------------------------------------------------------------------------------
SUMMIT BANCORP
--------------------------------------------
Name of small business issuer in its charter
Ohio 34-1599501
- ------------------------------- ---------------------------------
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
2680 West Market Street, Akron, Ohio 44333
--------------------------------------------
(Address of principal executive offices)
(330) 864-8080
--------------------------------------------
Registrant's telephone number, including area code
Securities Registered Pursuant to Section 12(b) of the Exchange Act: None
------
Securities Registered Pursuant to Section 12(g) of the Exchange Act: None
------
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
l934 during the preceding 12 months, and (2) has been subject to such filing
requirements for the past 90 days. Yes X No
--- ---
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-B is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-KSB or any amendment to
this Form 10-KSB. [X]
Revenues for the year ended December 31, 1996 were $7,610,000.
The aggregate market value of the Company's voting stock beneficially
owned by non-affiliates of the Company as of March 12, 1997 was $12,142,000
computed on the basis of $65 per share, the most recent bid price. On that date,
235,019 shares of common stock, no par value, were outstanding.
1
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TABLE OF CONTENTS
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<TABLE>
<CAPTION>
Part I
<S> <C> <C>
Item 1. Description of Business..................................................................3
Item 2. Description of Properties................................................................7
Item 3. Legal Proceedings........................................................................7
Item 4. Submission of Matters to a Vote of Security Holders......................................7
Part II
Item 5. Market for Registrant's Common Equity and Related Shareholder Matters ...................8
Item 6. Management's Discussion and Analysis of Financial Condition and
Results of Operation.....................................................................8
Item 7. Financial Statements....................................................................14
Notes to Consolidated Financial Statements..............................................18
Independent Auditors' Report............................................................31
Item 8. Changes In or Disagreements with Accountants on Accounting and
Financial Disclosure, if any ...........................................................32
Part III
Item 9. Directors and Executive Officers........................................................32
Item 10. Executive Compensation..................................................................34
Item 11. Security Ownership of Certain Beneficial Owners and Management ........................36
Item 12. Certain Relationships and Related Transactions..........................................37
Item 13. Exhibits and Reports on Form 8-K........................................................37
Signatures..............................................................................................39
Shareholder Information.................................................................................40
Board of Directors......................................................................................41
Summit Bank Officers....................................................................................41
Summit Bank Advisory Board..............................................................................41
</TABLE>
2
<PAGE> 3
PART I
Item l. Business
- ----------------
Summit Bancorp (the "Company") operates two wholly owned subsidiaries: Summit
Bank (the "Bank"), a full service commercial bank and Summit Banc Investments
Corporation ("SBIC"), a registered investment advisor. The main office of the
Company is located at 2680 West Market Street, Akron, Ohio 44333. The Company's
telephone number is 330-864-8080.
The Bank is an independent community bank drawing customers primarily from the
Akron, Canton and Cleveland Metropolitan areas. The Bank's mission is to provide
personal banking service to businesses, individuals, and professionals delivered
by meeting one-on-one with customers in an upscale office setting. Approximately
11% of its gross revenue comes from mortgage banking through origination of and
sale of mortgage loans to the secondary market. The Bank's service-focused
strategy is a niche market within the financial services industry and differs
significantly from the high volume, impersonalized and bureaucratic service
provided by most of the Bank's competitors through drive-up windows, teller
lines and ATM machines. The Bank is staffed with experienced banking veterans,
each of whom is equipped with the resources and has the authority to personally
satisfy most customer banking needs and concerns.
Despite the Bank's excellent customer retention record, future success and
growth through providing superior service is a challenge due to intense price
competition within an industry faced with over-capacity. The bank competes with
commercial banks, savings and loan associations, thrifts, finance companies,
credit unions and various non-bank businesses providing financial services. Many
of the Bank's competitors have greater resources at their disposal such as a
higher equity base. Other competitors, such as non-bank financial service
providers, do not face nearly as much regulatory burden, giving them an
advantage over commercial banks.
Services
- --------
The Bank is a Federal Deposit Insurance Corporation (FDIC) insured institution.
The Bank offers traditional commercial and consumer checking accounts, savings
accounts, certificates of deposit, Individual Retirement Accounts, Keogh
Accounts, direct deposit, night depository, access to automated teller machine
networks, and corporate cash management.
Lending services offered to the Bank's customers include commercial loans,
commercial and residential real estate loans, leases, credit cards, letters of
credit, home equity loans and other consumer loans.
SBIC's services include brokerage, sales of annuities and insurance products,
financial planning and investment advisory services.
Supervision and Regulation
- --------------------------
REGULATION OF THE COMPANY. The Company is a registered bank holding company
organized under the laws of the State of Ohio on November 7, 1988. As such, the
Company is subject to the laws of the State of Ohio and is under the
jurisdiction of the Securities Act of 1933, as amended, and various Securities
Commissioners relating to the offering and sale of its securities. Summit
Bancorp is also subject to regulation under the Bank Holding Company Act of
1956, as amended. The Federal Reserve Board regulates bank holding companies and
may examine or inspect the Company and Bank.
REGULATION OF THE BANK. The Bank is chartered by the State of Ohio and regulated
by the Ohio Division of Financial Institutions. On November 25, 1994 the Bank
became a member of the Federal Reserve System. Accordingly, the Federal Reserve
also regulates the Bank. These regulatory agencies have the authority to examine
the Bank, and the Bank is subject to their regulations.
REGULATION OF SBIC. The Ohio Division of Financial Institutions and the Federal
Reserve Board have the authority to examine SBIC, and SBIC is subject to their
regulations. SBIC, as a registered investment advisor, is also subject to
regulation by the Securities and Exchange Commission.
Summit Bancorp is not aware of any current recommendations by regulatory
authorities that, if they were to be implemented, would have a material effect
on the Company.
3
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Environmental Matters
- ---------------------
The Company is not aware of any exposure to material costs associated with
environmental hazardous waste clean-up. Bank loan procedures require EPA studies
be performed and obtained by Bank management prior to approving commercial real
estate loans with such potential risk.
Employees
- ---------
The Company's thirty-five full-time employees and two part-time employees are
employed by the Bank and SBIC.
Statistical Information
- -----------------------
SELECTED FINANCIAL DATA:
<TABLE>
<CAPTION>
1996 1995
-----------------------------
Summary of operations
<S> <C> <C>
Interest income................................................. $ 6,306,274 $ 5,346,465
Interest expense................................................ 3,011,333 2,564,209
-----------------------------
Net interest income...................................... 3,294,941 2,782,256
Provision for loan losses....................................... 185,000 100,000
-----------------------------
Net interest income after provision for loan losses...... 3,109,941 2,682,256
Noninterest income.............................................. 1,303,678 1,037,723
Noninterest expense............................................. 3,208,118 2,762,936
Federal income taxes............................................ 405,000 277,250
-----------------------------
Net income .............................................. $ 800,501 $ 679,793
=============================
Per share
Net income ..................................................... $ 3.43 $ 2.79
Weighted average shares outstanding............................. 233,718 243,442
SELECTED RATIOS
1996 1995
-----------------------------
Return on average assets 1.02% 1.01%
Return on average equity 11.73% 10.61%
Average equity to average assets 8.73% 9.54%
</TABLE>
4
<PAGE> 5
SELECTED YEAR-END BALANCE SHEET ACCOUNTS
<TABLE>
<CAPTION>
As of December 31,
------------------
1996 1995 Increase
-------------------------------------------
<S> <C> <C> <C>
Assets..................................................................$ 81,245,445 $ 74,565,322 $6,680,123
Total loans.............................................................. 56,015,298 49,316,016 6,699,282
Deposits................................................................. 67,761,925 61,596,763 6,165,162
Allowance for loan losses................................................ 837,805 739,062 98,743
Shareholders' equity..................................................... 7,208,383 6,654,799 553,584
LOANS As of December 31,
------------------
1996 1995 Increase
------------------------------------------
Commercial..............................................................$ 34,377,508 $ 29,783,039 $4,594,469
Residential real estate mortgage......................................... 12,575,904 12,123,794 452,110
Consumer lines of credit................................................. 5,949,950 4,447,475 1,502,475
Installment and credit card.............................................. 3,111,936 2,961,708 150,228
------------------------------------------
TOTAL LOANS.............................................................$ 56,015,298 $ 49,316,016 $6,699,282
==========================================
</TABLE>
RESULTS OF OPERATIONS
The Bank's net interest income increased $512,685 in 1996. The net interest
margin is calculated by dividing the tax equivalent net interest income by
average earning assets. As with net interest income, the net interest margin is
affected by the level and mix of earning assets, the proportion of earning
assets funded by non interest bearing liabilities and the interest rate spread.
Average loans totaled 72% and 68% of average earning assets in 1996 and 1995,
respectively. Increased net interest income resulted from a $9.7 million
increase in average earning assets comparing 1996 to 1995.
5
<PAGE> 6
The following table presents the Company's average assets, liabilities,
shareholders' equity and related yields:
<TABLE>
<CAPTION>
December 31, 1996 December 31, 1995
----------------- -----------------
% %
Average Yield/ Average Yield/
Balance Interest Rate Balance Interest Rate
----------------------------------------------------------------
(Thousands of dollars) (Thousands of dollars)
Interest earning assets:
<S> <C> <C> <C> <C> <C> <C>
Loans, net........................... $ 52,239 $ 4,992 9.56% $ 42,970 $ 4,177 9.72%
Mortgage loans held for sale......... 1,262 98 7.77 1,251 87 6.95
FHLB deposit ........................ 335 18 5.37 614 34 5.54
Securities........................... 19,036 1,198 6.29 18,336 1,094 5.97
------ ----- ------- -----
Total interest earning assets............. 72,872 6,306 8.65 63,171 5,392 8.54
Non-interest earning assets.......... 4,319 4,001
------- --------
Total assets.............................. $ 77,191 $ 67,172
====== =======
Interest-bearing deposits:
Demand............................... $ 4,757 117 2.46 $ 5,094 128 2.51
Savings.............................. 15,780 614 3.89 12,603 450 3.57
Time................................. 34,638 1,959 5.66 28,607 1,596 5.58
------ ----- ------- -----
Total interest-bearing deposits........... 55,175 2,690 4.88 46,304 2,174 4.70
Other borrowings..................... 5,535 321 5.80 6,321 390 6.17
------- ------ -------- ------
Total interest-bearing liabilities........ 60,710 3,011 4.96 52,625 2,564 4.87
Non-interest-bearing liabilities:
Non-interest bearing deposits........ 8,882 7,556
Other liabilities.................... 794 584
Shareholders' equity...................... 6,805 6,407
------- --------
Total non-interest-bearing liabilities
and shareholders' equity................ 16,481 14,547
------ ------
Total liabilities and
shareholders' equity.................... $ 77,191 $ 67,172
====== ------
Net interest earnings..................... $ 3,295 $ 2,828
===== =====
Net yield on interest earning assets...... 4.52% 4.48%
==== ====
</TABLE>
Nonaccrual loans have been included in the average balances. Interest income on
tax-exempt securities, representing 2.5% of 1995 total interest income is
included at the fully taxable equivalent basis, computed at 34%. Loan fee income
is included in interest income.
6
<PAGE> 7
The following table shows changes in interest income, expenses and net interest
income due to volume and rate variances for major categories of assets and
liabilities. Changes attributable to both rate and volume which cannot be
segregated have been allocated in proportion to the changes due to rate and
volume.
<TABLE>
<CAPTION>
1995 vs. 1996 1994 vs. 1995
---------------------------- ---------------------------------
Due to Change in Due to Change in
---------------- -----------------
(Dollars in Thousands) Volume Rate Total Volume Rate Total
----------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Interest earning assets:
Loans, net........................... $ 887 $ (72) $ 815 $ 622 $ 353 $ 975
Mortgage loans held for sale......... 1 10 11 23 (12) 11
FHLB deposit......................... (15) (1) (16) 1 12 13
Securities........................... 36 68 104 139 96 235
--------------------------------------------------------------------
Total interest income........... 909 5 914 785 449 1,234
Interest-bearing liabilities:
Demand deposits...................... (8) (3) (11) 10 3 13
Savings.............................. 129 35 164 (22) 98 76
Time deposits........................ 342 21 363 309 213 522
Short term borrowings................ (43) (26) (69) 234 56 290
--------------------------------------------------------------------
Total interest expense.......... 420 27 447 531 370 901
--------------------------------------------------------------------
Net interest income............. $ 489 $ (22) $ 467 $ 254 $ 79 $ 333
====================================================================
</TABLE>
Item 2. Properties
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The Bank, SBIC and the offices of the Company are located at 2680 West Market
Street, Akron, Ohio, in a commercial building owned by Summit Properties Limited
Partnership. Two members of the Board of Directors serve as partners in Summit
Properties Limited Partnership.
The Bank and SBIC lease approximately 9,000 square feet of space in the building
for $9,018 per month, an annual cost of $108,216. The agreement provides for
lease payments of $108,216 per year over a five-year term beginning January 2,
1996. The lease may be renewed at the Bank's option for four additional
five-year periods. However, at the beginning of each five-year renewal period,
the lease payment will be increased by (i) 4% of the payment for the period just
ended or (ii) 85% of the average annual increase in the Consumer Price Index
(CPI) for the last month of the fifth year of the period just ended, whichever
is greater.
The Bank also leases approximately 1,127 square feet of space for $1,609 per
month, an annual cost of $19,308, for an office located at 126 West Streetsboro
Street, Hudson, Ohio. The term of the lease is for five years, with an option to
extend the lease for one five year period at the expiration of the initial term.
The agreement provides for lease payments of $19,308 per year over a two year
period beginning September 1, 1995. On the second anniversary of the
commencement date of the lease, and each two years thereafter, the base rate
shall increase for that two year period in proportion to the CPI.
The registrant considers its properties satisfactory for its current operations.
Item 3. Legal Proceedings
- -------------------------
Neither the Company nor any subsidiary, including the Bank and SBIC, are party
to any material pending legal proceeding.
Item 4. Submission of Matters to a Vote of Security Holders
- -----------------------------------------------------------
No matter was submitted to a vote of security holders during the fourth quarter
of the Company's fiscal year ended December 31, 1996.
7
<PAGE> 8
PART II
Item 5. Market For Registrant's Common Equity and Related Shareholder Matters
- ------------------------------------------------------------------------------
COMMON STOCK
The Company's common stock is not traded on any securities exchange or in the
over-the-counter market. The Ohio Company, McDonald & Company Securities, and
Sweney Cartwright, Columbus, Ohio, currently maintain a work out market for the
common stock of the Company. Common stock trades occurring throughout 1996
ranged in price from $34.25 to $40.00 per share and $30.125 to $33.25 during
1995. The most recent price at which the shares traded was $65.00 on February
12, 1997. As of December 31, 1996, there were approximately 440 holders of the
Company's common stock. The Company has not declared any dividends to date.
The reason for the large increase in the stock price is that the Company entered
into an Agreement of Affiliation and Plan of Merger with FirstFederal Financial
Services Corp of Wooster, Ohio (FirstFederal) on December 30, 1996. Under the
terms of the agreement, FirstFederal will exchange 1.87 shares of its common
stock for each share of the Company's stock. Based on the average of
FirstFederal's closing bid and ask price of $39.375 on December 30, 1996, the
transaction would be valued at approximately $17.3 million. Related to the
proposed merger, the Board of Directors has suspended future purchases of common
stock of the Company related to a treasury repurchase program.
Item 6. Management's Discussion and Analysis
- --------------------------------------------
INTRODUCTION
The purpose of this discussion is to focus on information about the Company, its
financial condition and results of operations which is not otherwise apparent
from the consolidated financial statements included in this annual report.
Reference should be made to those statements and the selected financial data
presented elsewhere in this report for an understanding of the following
discussion and analysis.
The performance of the Bank and SBIC significantly affects the Company.
SOURCES AND USES OF FUNDS
The Company functions as a financial intermediary, and as such, its financial
condition should be examined in terms of trends in its sources and uses of
funds. The Company uses its funds primarily to support its lending activities.
Total loans increased $6.7 million in 1996. The loan growth for real estate
mortgage, commercial and other loans was $.5, $4.6 and $1.6 million,
respectively, or 7%, 69% and 24% of loan growth for 1996. At December 31,1996,
real estate mortgage, commercial and other loans represented 22%, 61% and 17%,
respectively, of the Company's total loans.
Securities, another major use of funds, decreased to $18.1 million in 1996. As
more fully described in Note C, gross unrealized gains on securities totaled
$25,696 and $145,604, respectively on December 31, 1996 and 1995. Gross
unrealized losses totaled $122,198 and $31,575, respectively. The portfolio tax
equivalent yield on securities was 6.29% for 1996 and 5.97% for 1995. Liquidity
is discussed further below.
The growth in earning assets was funded primarily by increased deposits rather
than through purchased funds. As the primary source of funds, aggregate deposits
increased $6.2 million in 1996. Demand deposits declined $600,000 in 1996.
Savings deposits grew $2.8 million in 1996. Time deposits, the primary source of
deposit growth, grew $4.0 million in 1996. The Bank's annual cost of interest
bearing liabilities increased to 4.96% in 1996 from 4.87% in 1995.
LIQUIDITY AND INTEREST RATE
SENSITIVITY MANAGEMENT
The primary functions of asset/liability management are to manage liquidity and
maintain an appropriate balance between interest-sensitive earning assets and
interest-bearing liabilities. Liquidity management involves the ability to meet
the cash flow requirements of customers who may be either depositors wanting to
withdraw funds or borrowers
8
<PAGE> 9
Item 6. Management's Discussion and Analysis -- Continued
- ---------------------------------------------------------
needing assurance that sufficient funds will be available to meet their credit
needs. Interest rate sensitivity management seeks to avoid fluctuating net
interest margins in periods of changing interest rates.
Securities are a primary source of liquidity and totaled $18.1 million at
December 31, 1996 which represents 22% of total assets. Other types of assets,
such as mortgage loans held for sale, interest bearing deposits and maturing
loans are also sources of liquidity. Liquidity is further enhanced because of
the significant aggregate amount of core deposits. The Company does not rely
heavily on brokered deposits or large certificates of deposit as a significant
source of funds. Additionally, the Company has a line of credit for $10 million
providing supplemental liquidity.
Following is a summary of the remaining maturities of time certificates of
deposit of $100,000 or more and other time deposits of $100,000 or more
outstanding:
<TABLE>
<CAPTION>
As of December 31, 1996
------------------------------------------------
Time Other
Certificates Time
of Deposit Deposits Total
---------- -------- -----
(Dollars in thousands)
<S> <C> <C> <C>
Maturing in:
3 months or less.......................... $ 3,925 $ 687 $ 4,612
3-12 months............................... 2,171 279 2,450
Over 12 months............................ 2,232 697 2,929
----------------------------------------------
TOTAL..................................... $ 8,328 $1,663 $ 9,991
==============================================
</TABLE>
Interest rate sensitivity varies with different types of interest-earning
assets, deposits and other interest-bearing liabilities. Overnight federal funds
on which rates change daily and loans which are tied to the prime rate differ
considerably from long-term securities and fixed-rate loans. Similarly, time
deposits over $100,000 and money market certificates are much more interest
sensitive than passbook savings accounts. The shorter term interest rate
sensitivities are key to measuring the interest sensitivity gap, or excess
interest-sensitive earning assets over deposits and other interest-bearing
liabilities. Assets and liabilities that reprice have interest rate changes due
to one or more of the following factors: maturity, yield curve movement,
amortization, prepayment and contractual repricing terms.
The following table shows the interest sensitivity gaps for five different time
intervals as of December 31, 1996. Certain assumptions have been made by
management for prepayment speeds and core deposits. The table includes a
prepayment assumption for residential mortgage loans and mortgage-backed
securities of approximately 6%. For the first 30 days, total repricing assets
exceeded total repricing liabilities. Demand and savings deposits are
distributed over a five year period based upon the estimated duration of
customer relationships. For the next 60 days and for the remainder of the first
year, there was an excess of total repricing liabilities over total repricing
assets. The excess of total repricing assets over total repricing liabilities
for the one-to-five year period is primarily related to the longer maturities of
loans relative to deposits. The cumulative gap between total repricing assets
and repricing liabilities, based on a one year time period, was $1,364,000 or
1.8% of earning assets as of December 31, 1996.
INTEREST RATE SENSITIVITY GAPS AS OF DECEMBER 31, 1996
<TABLE>
<CAPTION>
0-30 31-90 91-365 1-5 Over 5
Days Days Days Years Years
--------------------------------------------------------
(Thousands of dollars)
<S> <C> <C> <C> <C> <C>
Net loans .................................. $ 21,749 $ 3,079 $ 8,767 $ 18,404 $ 4,016
Securities.................................. 564 1,120 4,013 10,012 2,365
All other assets............................ 3,684 -- -- -- --
------------------------------------------------------------
Total interest-earning assets............... 25,997 4,199 12,780 28,416 6,381
Time deposits............................... 4,294 7,185 11,470 12,487 55
FHLB Advances............................... 3,300 500 500 1,000 --
Demand and savings deposits................. 1,248 2,384 10,731 17,908 --
------------------------------------------------------------
Total deposits and FHLB advances............ 8,842 10,069 22,701 31,395 55
------------------------------------------------------------
Interest sensitivity gap.................... $ 17,155 $ (5,870) $ (9,921) $ (2,979) $ 6,326
============================================================
</TABLE>
9
<PAGE> 10
Item 6. Management's Discussion and Analysis -- Continued
- ---------------------------------------------------------
The primary interest sensitive assets and liabilities in the one year maturity
range are securities maturing in one year or less, mortgage-backed securities,
commercial loans, demand and savings deposits and large time deposits. Trying to
minimize the gap between interest sensitive assets and liabilities is a
continual challenge in a changing interest rate environment and one of the
objectives of the Company's asset/liability strategy.
CAPITAL RESOURCES
The Company uses its capital base to take advantage of business opportunities
while ensuring that it has resources to absorb the risks inherent in the
business.
Federal Reserve Board standards require banks and bank holding companies to
maintain capital based on "risk-adjusted" assets so that categories of assets
with potentially higher credit risk will require more capital backing than
assets with lower risk. In addition, banks and bank holding companies are
required to maintain capital to support, on a risk-adjusted basis, certain
off-balance-sheet activities such as loan commitments and interest rate swaps.
The Federal Reserve Board standards classify capital into two tiers, referred to
as Tier 1 and Tier 2. The Company's Tier 1 capital consists of common
shareholders' equity. The Company's Tier 2 capital consists of the allowance for
loan losses. All banks are required to meet minimum ratios. The minimum
requirements are:
<TABLE>
<CAPTION>
Capital to risk-
weighted assets
--------------- Tier 1 capital
Total Tier 1 to average assets
----- ------ -----------------
<S> <C> <C> <C>
Well capitalized 10% 6% 5%
Adequately capitalized 8% 4% 4%
Undercapitalized 6% 3% 3%
</TABLE>
The Company and the Bank at December 31, 1996 and 1995 were categorized as well
capitalized.
CAPITAL AND DIVIDENDS
The ability of the Company to pay dividends is dependent upon the Bank paying
dividends to the Company. These payments by the Bank are restricted by the
regulatory agencies. In 1996, the Bank paid $1,550,000 in dividends to the
Company. The Bank has accumulated earnings of $900,000 available for
distribution to the Company as of December 31, 1996. To date, the Company has
decided to reinvest earnings rather than pay a dividend to shareholders.
10
<PAGE> 11
Item 6. Management's Discussion and Analysis -- Continued
- ---------------------------------------------------------
MATURITIES OF INVESTMENT SECURITIES AND THE WEIGHTED AVERAGE YIELDS
FOR THE YEAR ENDED DECEMBER 31, 1996:
The amortized cost and estimated market value of debt securities at December 31,
1996, by expected maturity is shown below. Actual maturities will differ from
contractual maturities because borrowers may have the right to call or repay
obligations with or without call or repayment penalties. The average interest
rates are based on coupon rates adjusted for amortization and accretion.
<TABLE>
<CAPTION>
AMORTIZED ESTIMATED AVERAGE
COST FAIR VALUE YIELD
--------------------------------------------
<S> <C> <C> <C>
SECURITIES AVAILABLE-FOR-SALE
U.S. Treasury Notes:
One Through Five Years................. $ 1,996,974 $ 2,018,437 6.37%
Mortgage-backed securities:
Within One Year........................ 708,740 707,752 6.06
One Through Five Years................. 11,435,626 11,359,887 6.56
Over five years........................ 2,816,750 2,784,333 7.59
----------------------------------------------
TOTAL.............................. 14,961,116 14,851,972 6.73
Other Debt Securities:
Within One Year........................ 44,105 35,284 7.63
Other securities............................ 1,167,437 1,167,437 6.90
----------------------------------------------
TOTAL SECURITIES AVAILABLE-FOR-SALE......... $ 18,169,632 $18,073,130 6.69%
==============================================
</TABLE>
Loans are shown below based on contractual maturities. Actual maturities may
differ because borrowers may repay loans with or without repayment penalties.
MATURITIES AND SENSITIVITY OF LOANS TO CHANGES IN INTEREST RATES
DECEMBER 31, 1996 (in Thousands)
<TABLE>
<CAPTION>
Fixed and Other Adjustable Rate Loans
----------------------------------------------------------------------
Floating Maturities Maturities Maturities
Rate Less than 13-60 over 60
Loans (1) 12 Months Months Months Total Total
----------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Commercial............................ $ 10,963 $ 2,480 $ 10,103 $10,831 $ 23,414 $ 34,377
Real Estate/Mortgage (2).............. -- 32 254 12,290 12,576 12,576
Installment........................... 949 237 1,152 93 1,482 2,431
Lines of Credit....................... 5,950 -- -- -- -- 5,950
Credit Card........................... 681 -- -- -- -- 681
----------------------------------------------------------------------
Total Loans........................... $ 18,543 $ 2,749 $ 11,509 $23,214 $ 37,472 $ 56,015
======================================================================
Adjustable rate loans................. $ 18,543 $ 494 $ 1,661 $15,559 $ 17,714 $ 36,257
Predetermined interest rates.......... -- 2,255 9,848 7,655 19,758 19,758
----------------------------------------------------------------------
Total Loans........................... $ 18,543 $ 2,749 $ 11,509 $23,214 $ 37,472 $ 56,015
======================================================================
<FN>
(1) Floating rate loans reprice immediately with changes in the rate index.
(2) Real estate/mortgage primarily consist of loans for the purchase of
residential real estate.
</TABLE>
The Company's loan portfolio represents its largest and highest yielding earning
asset. It also contains the most risk of loss. This risk is due primarily to
changes in the borrowers' primary repayment capacity, and to collateral values
that are subject to change over time. These risks are managed with specific
underwriting guidelines, loan review procedures and training of personnel.
11
<PAGE> 12
Item 6. Management's Discussion and Analysis -- Continued
- ---------------------------------------------------------
The Company's primary source of income is net interest income: the difference
between interest income and fees derived from earning assets and interest paid
on liabilities. In 1996, net interest income was $3.3 million, an 18% increase
over 1995.
Non-interest income increased 26% or $266,000 in 1996. The increase relates to
origination fees on loans sold and security gains. Non-interest expenses
increased 16% or $445,000 reflecting expenses associated with the new Hudson
Financial Center and additional personnel.
ALLOWANCE FOR LOAN LOSSES
The allowance for loan losses is maintained at a level believed adequate by
management to absorb inherent losses in the loan portfolio. Management's
methodology to determine the adequacy of the allowance considers specific credit
reviews, the level of delinquent and nonperforming loans, past loan loss
experience, the past loss experience of peer group banks, current economic
conditions and trends, and the volume, growth and composition of the loan
portfolio.
The allowance for loan losses is charged when management determines that the
prospects of recovery of the principal of a loan has significantly diminished.
Subsequent recoveries, if any, are credited to the allowance. Credit card loans
are charged off at the earlier of notice of bankruptcy, when at least 120 days
past due, or when otherwise deemed to be uncollectible. All other installment
loans that are 90 to 120 days past due are charged off unless insured for credit
loss or where scheduled payments are being received. Real estate mortgage loans
are adjusted to fair value net of approximate selling costs upon the earlier of
receipt of a deed of foreclosure or upon completion of foreclosure proceedings.
Commercial and other loan charge-offs are made based on management's on-going
evaluation of nonperforming loans.
The following table presents the reconciliation of the loan loss allowance:
<TABLE>
<CAPTION>
1996 1995
---------------------------
<S> <C> <C>
Balance at beginning of year....................... $ 739,062 $ 618,788
Provision.......................................... 185,000 100,000
Loans charged off:
Commercial.................................... 82,408 62,208
Installment................................... 34,799 --
Lines of credit and other..................... 359 --
Credit card................................... 8,760 3,803
---------------------------
Total charge-offs............................. 126,326 66,011
Recoveries:
Commercial.................................... 36,460 74,711
Installment................................... 460 8,368
Lines of credit and other..................... 247 3,206
Credit card................................... 2,902 --
---------------------------
Total recoveries................................... 40,069 86,285
---------------------------
Net charged-off loans.............................. 86,257 (20,274)
---------------------------
Balance at end of year............................. $ 837,805 $ 739,062
===========================
Ratio of ending allowance to ending loans.......... 1.50% 1.50%
</TABLE>
NONPERFORMING ASSETS
Nonperforming assets include nonaccrual and restructured loans, accruing loans
past due 90 days or more, and other real estate which includes foreclosures,
deeds in lieu of foreclosure and impaired loans. A loan is considered impaired
when it is probable that all principal and interest amounts will not be
collected according to the loan contract.
12
<PAGE> 13
Item 6. Management's Discussion and Analysis -- Continued
- ---------------------------------------------------------
A loan generally is classified as nonaccrual when full collectibility of
principal or interest is doubtful or a loan becomes 90 days past due as to
principal or interest, unless management determines that the estimated net
realizable value of the collateral is sufficient to cover the principal balance
and accrued interest. When interest accruals are discontinued, unpaid interest
credited to income in the current year is reversed, and unpaid interest accrued
in prior years is charged to the allowance for loan losses. A loan is classified
as restructured if the original interest rate, repayment terms, or both were
restructured due to the deterioration in the financial condition of the
borrower. Nonperforming loans are returned to performing status when the loan is
brought current and has performed in accordance with contract terms for a period
of time.
A summary of nonperforming assets at December 31, 1996 and 1995 follows:
<TABLE>
<CAPTION>
1996 1995
-------------------------
<S> <C> <C>
Loans 90 days past due accruing interest...........................$ 82,336 $ 19,268
Nonaccrual loans:
Residential Mortgage........................................... 158,572 --
Commercial..................................................... 116,911 184,202
Lines of credit................................................ -- --
------------------------
Nonperforming assets...............................................$ 357,819 $ 203,470
========================
Interest income that would have been recorded
under the original terms of non accrual loans....................$ 30,821 $ 19,491
Interest income recognized.......................................... -- --
Loan loss allowance to nonperforming assets......................... 234% 363%
</TABLE>
Impaired loans of $275,483 and $48,244 at December 31, 1996 and 1995 are
included in the nonaccrual total.
The following table shows the allocation of the allowance for loan losses and
percentage of loans in each category to total loans at year end:
<TABLE>
<CAPTION>
1996 1995
--------------------- ----------------
Allowance Loans Allowance Loans
----------------------------------------------
<S> <C> <C> <C> <C>
Commercial......................................... $ 586,198 61.4% $ 388,044 60.4%
Real estate mortgage............................... 56,229 22.5 9,675 24.6
Installment........................................ 14,099 4.3 13,777 4.7
Lines of credit.................................... 35,160 10.6 24,955 9.0
Credit card........................................ 13,388 1.2 12,363 1.3
Unallocated reserve................................ 132,731 290,248
---------------------------------------------
TOTAL......................................... $ 837,805 100.0% $ 739,062 100.0%
=============================================
</TABLE>
REGULATORY MATTERS
During September 1996, Federal Reserve Bank examiners completed a safety and
soundness examination including an asset quality examination at the Company's
subsidiary Bank. The Company's level and classification of identified potential
problem loans was not revised as a result of this regulatory examination
process.
Examination procedures require individual judgments about a borrower's ability
to repay loans, sufficiency of collateral values and the effects of changing
economic circumstances. These procedures are similar to those employed by the
Company in determining the adequacy of the allowance for loan losses and in
classifying loans. Judgments made by regulatory examiners may differ from those
made by management.
Management and the boards of directors of the Company, Bank and SBIC evaluate
existing practices and procedures on an ongoing basis. In addition, regulators
often make recommendations during the course of their examinations that relate
to the operations of the Company and its subsidiaries. As a matter of practice,
management and the boards of directors of the Company and its subsidiaries
consider such recommendations promptly.
13
<PAGE> 14
Item 7. Financial Statements
- -----------------------------
<TABLE>
<CAPTION>
SUMMIT BANCORP
Consolidated Balance Sheets December 31, 1996 and 1995
1996 1995
------------------------------------
<S> <C> <C>
ASSETS
Cash and cash equivalents.......................................$ 2,111,588 $ 3,432,431
Securities available-for-sale at fair value..................... 18,073,130 18,949,702
Mortgage loans originated and held for sale..................... 3,527,817 1,768,019
Loans
Commercial .................................................. 34,377,508 29,783,039
Residential real estate mortgages............................ 12,575,904 12,123,794
Installment.................................................. 2,430,833 2,343,555
Lines of credit.............................................. 5,949,950 4,447,475
Credit card receivables...................................... 681,103 618,153
-----------------------------------------
Total loans.................... 56,015,298 49,316,016
Allowance for loan losses.................................... (837,805) (739,062)
-----------------------------------------
Net loans.................... 55,177,493 48,576,954
Premises and Equipment
Equipment and furniture...................................... 869,448 811,437
Leasehold improvements....................................... 565,639 345,714
Accumulated depreciation..................................... (551,689) (408,383)
-----------------------------------------
Premises and equipment, net........... 883,398 748,768
Accrued interest and other assets............................... 1,472,019 1,089,448
-----------------------------------------
TOTAL ASSETS................ $ 81,245,445 $ 74,565,322
=========================================
LIABILITIES
Deposits
Noninterest bearing demand...................................$ 8,012,995 $ 9,309,067
Interest bearing demand...................................... 5,528,169 4,829,560
Savings...................................................... 18,729,271 15,919,904
Time......................................................... 35,491,490 31,538,232
-------------------------------------------
Total deposits.................... 67,761,925 61,596,763
Borrowings...................................................... 5,300,000 5,650,000
Accrued interest payable and other liabilities.................. 975,137 663,760
------------------------------------------
TOTAL LIABILITIES.................... 74,037,062 67,910,523
SHAREHOLDERS' EQUITY
Common Stock, no par value, 3,000,000 shares authorized,
issued 252,590 shares as of December 31, 1996 and 1995 6,138,895 6,125,647
Unearned Restricted Stock Awards................................ (100,800) -
Treasury Stock, at cost, 17,674 shares held at
December 31, 1996 and 16,179 at December 31, 1995............. (574,724) (512,532)
Retained earnings............................................... 1,807,517 1,007,016
Securities equity valuation account............................. (62,505) 34,668
-----------------------------------------
TOTAL SHAREHOLDERS' EQUITY.................... 7,208,383 6,654,799
-----------------------------------------
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY...........$ 81,245,445 $ 74,565,322
=========================================
</TABLE>
See notes to consolidated financial statements.
14
<PAGE> 15
Item 7. Financial Statements -- continued
- -----------------------------------------
<TABLE>
<CAPTION>
SUMMIT BANCORP
Consolidated Statements of Income For the Years Ended December 31, 1996 and 1995
1996 1995
-----------------------------------
<S> <C> <C>
INTEREST INCOME
Loans, including fees..................................... $ 5,090,135 $ 4,264,306
Taxable securities ....................................... 1,197,971 912,441
Tax exempt securities..................................... - 135,372
Deposits with banks....................................... 18,168 34,346
---------------------------------
TOTAL INTEREST INCOME................................ 6,306,274 5,346,465
INTEREST EXPENSE
Deposits.................................................. 2,690,151 2,174,602
FHLB advances............................................. 321,182 264,412
Repurchase agreements..................................... - 125,195
---------------------------------
TOTAL INTEREST EXPENSE............................... 3,011,333 2,564,209
---------------------------------
NET INTEREST INCOME.................................. 3,294,941 2,782,256
PROVISION FOR LOAN LOSSES................................. 185,000 100,000
---------------------------------
Net interest income after provision for loan losses.. 3,109,941 2,682,256
NONINTEREST INCOME
Origination fees on loans sold............................ 922,121 766,811
Customer service fees..................................... 179,627 152,099
Commissions............................................... 126,830 60,055
Net security gains........................................ 45,547 14,923
Other income.............................................. 29,553 43,835
---------------------------------
TOTAL NONINTEREST INCOME............................. 1,303,678 1,037,723
NONINTEREST EXPENSE
Salaries and employee benefits............................ 1,737,785 1,385,272
Net occupancy expense..................................... 225,421 173,389
Depreciation.............................................. 173,647 126,484
Amortization.............................................. 10,665 86,374
Professional services..................................... 204,898 176,511
EDP and communications.................................... 362,706 264,700
Ohio franchise tax........................................ 98,001 81,119
FDIC insurance............................................ 2,000 58,995
Other insurance........................................... 34,145 35,835
Other operating costs..................................... 358,851 374,257
---------------------------------
TOTAL NONINTEREST EXPENSE............................ 3,208,118 2,762,936
---------------------------------
INCOME BEFORE INCOME TAXES................................ 1,205,501 957,043
Federal income taxes...................................... 405,000 277,250
---------------------------------
NET INCOME................................................ $ 800,501 $ 679,793
=================================
Net income per share...................................... $ 3.43 $ 2.79
=================================
Weighted average shares outstanding....................... 233,718 243,442
=================================
</TABLE>
See notes to consolidated financial statements.
15
<PAGE> 16
Item 7. Financial Statements -- continued
- -----------------------------------------
<TABLE>
<CAPTION>
SUMMIT BANCORP
Consolidated Statements of Shareholders' Equity For the Years Ended December 31, 1996 and 1995
Unearned Securities
Restricted Equity Total
Common Stock Treasury Retained Valuation Shareholders'
Stock Awards Stock Earnings Account Equity
--------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
BALANCE AT JANUARY 1, 1995.................. $ 6,125,647 $ (98,534) $ 327,223 $ (428,779) $ 5,925,557
Net income............................. 679,793 679,793
Purchase of 13,899 shares of
treasury stock, at cost............. (443,972) (443,972)
Sale of 995 shares of treasury stock... 29,974 29,974
Change in securities equity
valuation account................... 463,447 463,447
--------------------------------------------------------------------------------------
BALANCE AT DECEMBER 31, 1995................ 6,125,647 (512,532) 1,007,016 34,668 6,654,799
Net income............................. 800,501 800,501
Purchase of 6,151 shares of
treasury stock, at cost............. (216,169) (216,169)
Sale of 1,056 shares of treasury stock. 37,625 37,625
Restricted stock award grant -
3,600 shares from treasury.......... 13,248 $(129,600) 116,352
Restricted stock award earned-800 shares 28,800 28,800
Change in securities equity
valuation account.................... (97,173) (97,173)
--------------------------------------------------------------------------------------
BALANCE AT DECEMBER 31, 1996................ $ 6,138,895 $ (100,800) $(574,724) $ 1,807,517 $ (62,505) $ 7,208,383
====================================================================================
</TABLE>
See notes to consolidated financial statements.
16
<PAGE> 17
Item 7. Financial Statements -- continued
- -----------------------------------------
<TABLE>
<CAPTION>
SUMMIT BANCORP
Consolidated Statements of Cash Flows For the Years Ended December 31, 1996 and 1995
1996 1995
----------------------------
<S> <C> <C>
CASH FLOW FROM OPERATING ACTIVITIES:
Net income................................................................. $ 800,501 $ 679,793
Adjustments to reconcile net income to net cash used by operating activities:
Provision for loan losses............................................... 185,000 100,000
Depreciation and amortization........................................... 184,312 212,858
Amortization of premiums on investment securities....................... 131,252 90,849
Investment securities net gain.......................................... (45,547) (14,923)
FHLB stock dividends received........................................... (85,100) (52,900)
Deferred income taxes................................................... (85,033) 38,807
Change in mortgage loans originated for sale............................ (1,759,798) (306,149)
Restricted stock award earned........................................... 28,800 --
Changes in:
Accrued interest receivable and other assets......................... (196,478) (275,895)
Accrued interest payable and other liabilities....................... 311,377 155,261
----------------------------
NET CASH FROM OPERATING ACTIVITIES............................................ (530,714) 627,701
CASH FLOWS USED IN INVESTING ACTIVITIES:
Purchases of securities held to maturity................................... -- (5,036,938)
Purchases of securities available-for-sale................................. (15,530,013) (6,154,951)
Proceeds from the sales of securities held to maturity..................... -- 2,022,223
Proceeds from the sales of securities available-for-sale................... 11,313,757 5,439,677
Proceeds from maturities of securities held to maturity.................... -- 2,369,352
Proceeds from maturities of securities available-for-sale.................. 4,883,325 398,174
Net increase in loans...................................................... (6,785,539) (9,177,226)
Purchase of premises and equipment......................................... (308,277) (183,041)
----------------------------
NET CASH USED IN INVESTING ACTIVITIES......................................... (6,426,747) (10,322,730)
CASH FLOWS FROM FINANCING ACTIVITIES:
Net deposits............................................................... 6,165,162 10,140,819
Purchase of treasury stock................................................. (216,205) (443,972)
Proceeds from the sale of treasury stock................................... 37,661 29,974
Change in short term borrowings............................................ (3,350,000) (250,000)
Long-term advances from FHLB............................................... 3,000,000 1,000,000
----------------------------
NET CASH FROM FINANCING ACTIVITIES............................................ 5,636,618 10,476,821
----------------------------
Net change in cash and cash equivalents.................................... (1,320,843) 781,792
Cash and cash equivalents at the beginning of the year..................... 3,432,431 2,650,639
----------------------------
Cash and cash equivalents at the end of the year........................... $ 2,111,588 $ 3,432,431
----------------------------
</TABLE>
See notes to consolidated financial statements.
17
<PAGE> 18
SUMMIT BANCORP
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE YEARS ENDED DECEMBER 31, 1996 AND 1995
- ------------------------------------------------------------------------------
NOTE A -
ACCOUNTING POLICIES
PRINCIPLES OF CONSOLIDATION: The consolidated financial statements include the
accounts of Summit Bancorp (the Company) and its wholly owned subsidiaries
Summit Bank (the Bank) and Summit Banc Investments Corporation (SBIC). All
significant intercompany balances and transactions have been eliminated.
NATURE OF OPERATIONS: The Company is a bank holding company engaged in the
business of commercial and retail banking which accounts for substantially all
of its revenues, operating income and assets. Substantially all of the Bank's
customers are from the Akron, Canton and Cleveland metropolitan areas. The
Bank's revenues primarily arise from interest income from commercial and retail
lending activities and investments and revenue derived from mortgage banking
through origination of, and sales of, mortgage loans to the secondary market
with servicing retained, and related servicing income. Approximately 11% of its
gross revenues come from mortgage banking. SBIC's revenues are derived from
brokerage commissions, sales of annuities and insurance products, financial
planning and investment advisory fees.
USE OF ESTIMATES: In preparing financial statements, management must make
estimates and assumptions. These estimates and assumptions affect the amounts
reported for assets, liabilities, revenues and expenses, as well as affecting
the disclosures provided. Future results could differ from the current
estimates. The collectibility of loans, fair values of financial instruments,
and the status of contingencies are particularly subject to change.
CASH AND CASH EQUIVALENTS: Cash and cash equivalents include cash and
noninterest bearing and interest bearing balances with banks. The Company
reports net cash flows for short term investments, customer loan and deposit
transactions, and short term borrowings. For the years ended December 31, 1996
and 1995, interest paid totaled $3,061,420 and $2,528,213 and income taxes paid
totaled $311,262 and $284,545, respectively.
SECURITIES: The Company classifies securities as held-to-maturity,
available-for-sale or trading. Held-to-maturity securities are those which the
Company has the positive intent to hold to maturity and are reported at
amortized cost. Available-for-sale securities are those which the Company could
sell for liquidity, asset-liability management or other reasons even though the
Company does not intend to sell these securities at the present time.
Available-for-sale securities are reported at fair value, with unrealized gains
or losses included as a separate component of equity, net of tax. Trading
securities are bought principally for sale in the near term and are reported at
fair value with unrealized gains or losses included in earnings. At December 31,
1996 and 1995, the Company has classified all securities as available-for-sale.
Realized gains or losses are determined based on the amortized cost of the
specific security sold. Interest and dividend income, adjusted by amortization
or purchase premium or discount, is included in earnings.
MORTGAGE LOANS ORIGINATED AND HELD FOR SALE: Residential mortgage loans
originated and held for sale are valued at the lower of cost or estimated market
value in the aggregate. To mitigate interest rate risk, the Company generally
obtains fixed price commitments on loans held for sale.
LOANS: Loans are reported at the principal balance outstanding, net of deferred
loan fees and costs. Interest on loans is accrued over the term of the loans
based upon the principal outstanding. Management reviews loans delinquent 90
days or more to determine if the interest accrual should be discontinued. The
carrying value of impaired loans is periodically adjusted to reflect cash
payments, revised estimates of future cash flow, and increases in the present
value of expected cash flows due to the passage of time. Cash payments
representing interest income are reported as such. Other cash payments are
reported as reductions in carrying value. Increases or decreases in carrying
value
18
<PAGE> 19
SUMMIT BANCORP
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- CONTINUED
due to changes in estimates of future payments or the passage of time are
reported as reductions or increases in bad debt expense.
Fees and costs associated with originating loans are deferred and amortized as
an adjustment to the loan yield over the life of the respective loans. The net
amount of fees and costs deferred was $(33,850) and $17,909 at December 31, 1996
and 1995, respectively.
ALLOWANCE FOR LOAN LOSSES: Estimating possible losses inherent in a loan
portfolio is a necessarily subjective process. Accordingly, management maintains
the allowance for loan losses at a level considered adequate to cover possible
losses. Information used to assess the adequacy of the allowance for loan losses
includes specific borrower situations including the adequacy of their cash flow
from business operations and collateral values, past loan loss experience,
general economic conditions, volume, growth and composition of the loan
portfolio and other relevant factors. The allowance is increased by provisions
charged against income and recoveries of previous loan charge-offs. The
allowance is reduced by charging off loans that are deemed uncollectible by
management.
Smaller-balance homogeneous loans are evaluated for impairment in total. Such
loans include residential first mortgage loans secured by one-to-four family
residences, residential construction loans, automobile, home equity and second
mortgage loans. Commercial loans and mortgage loans secured by other properties
are evaluated individually for impairment. When analysis of borrower operating
results and financial condition indicates that underlying cash flows of the
borrower's business are not adequate to meet its debt service requirements, the
loan is evaluated for impairment. Impaired loans are measured based upon the
present value of expected future cash flows discounted at the loan's effective
interest rate or, as a practical expedient, at the loan's observable market
price or the fair value of the collateral if the loan is collateral dependent. A
loan is considered impaired when it is probable that all principal and interest
amounts will not be collected according to the loan contract. Often this is
associated with a delay or shortfall in payments of 30 days or more. Loans are
generally moved to nonaccrual status when 90 days or more past due. These loans
are often also considered impaired. Impaired loans, or portions thereof, are
charged off when deemed uncollectible. This typically occurs when the loan is
120 or more days past due.
LOAN SERVICING RIGHTS: The Company originates mortgage loans for sale to the
secondary market and sells the loans with servicing retained or released.
Beginning April 1, 1995, the total cost of mortgage loans originated with the
intent to sell is allocated between the loan servicing right and the mortgage
loan without servicing based on their relative fair values at the date of sale.
The capitalized cost of loan servicing rights is amortized in proportion to, and
over the period of, estimated net servicing revenue.
Mortgage servicing rights are periodically evaluated for impairment by
stratifying them based on predominant risk characteristics of the underlying
serviced loans. These risk characteristics include loan type (conventional or
government insured, fixed or adjustable rate), term (15 year or 30 year), and
note rate. Impairment represents the excess of cost of an individual mortgage
servicing rights stratum over its fair value, and is recognized through a
valuation allowance.
Fair values are based on quoted market prices. Estimates of fair value include
assumptions about prepayment, default and interest rates, and other factors
which are subject to change over time. Changes in these underlying assumptions
could cause the fair value of mortgage servicing rights, and the related
valuation allowance, to change significantly in the future.
PREMISES AND EQUIPMENT: Premises and equipment are stated at cost, less
accumulated depreciation and amortization. Depreciation is computed on the
straight-line method over the estimated useful life of the asset. Leasehold
improvements are amortized over the shorter of the terms of the respective
leases or the estimated useful lives. These assets are reviewed for impairment
under Statement of Financial Accounting Standards (SFAS) No. 121 when events
indicate the carrying amount may not be recoverable. Maintenance and repairs are
expensed, and major improvements are capitalized.
19
<PAGE> 20
SUMMIT BANCORP
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- CONTINUED
INCOME TAXES: The Company follows the liability method of accounting for income
taxes. The liability method provides that deferred tax assets and liabilities
are recorded based on the difference between the tax basis of assets and
liabilities and their carrying amounts for financial reporting purposes using
enacted tax rates.
NET INCOME PER SHARE: Net income per share is based on the weighted average
number of shares outstanding during each year. Stock options outstanding do not
presently have a dilutive effect of greater than 3% on net income per share.
ACCOUNTING FOR STOCK-BASED COMPENSATION: SFAS No. 123, "Accounting for
Stock-Based Compensation," issued in October 1995, encourages, but does not
require, entities to use a "fair value based method" to account for stock-based
compensation plans. If the fair value accounting encouraged by SFAS No. 123 is
not adopted, entities must disclose the pro forma effect on net income and on
earnings per share had the accounting been adopted. Fair value of a stock option
is to be estimated using an option-pricing model, such as Black-Scholes, that
considers: exercise price, expected life of the option, current price of the
stock, expected price volatility, expected dividends on the stock and the
risk-free interest rate. Once estimated, the fair value of an option is not
later changed. The accounting and disclosure requirements of this statement are
effective for transactions entered into in fiscal years beginning after December
15, 1995. Pro forma disclosures required for entities that elect to continue to
measure compensation cost using existing accounting methods must include the
effects of all awards granted in fiscal years beginning after December 15, 1994.
Stock option grants in 1996 of 1,950 shares do not materially affect current or
future pro forma earnings per share.
RECLASSIFICATION: Certain items from 1995 have been reclassified to conform to
the 1996 presentation.
NOTE B -
RESTRICTIONS ON CASH AND DUE FROM ACCOUNTS
The Bank is required to maintain certain balances with the Federal Reserve Bank.
At December 31, 1996 and 1995, the required reserve balance was approximately
$219,000 and $224,000, respectively.
20
<PAGE> 21
SUMMIT BANCORP
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- CONTINUED
NOTE C -
SECURITIES
The amortized cost and estimated fair value of securities are as follows:
<TABLE>
<CAPTION>
Gross Gross Estimated
Amortized Unrealized Unrealized Fair
Cost Gains Losses Value
-----------------------------------------------------------------
December 31, 1996
- -----------------
<S> <C> <C> <C> <C>
SECURITIES AVAILABLE FOR SALE:
Mortgage-backed securities.................$ 14,961,116 $ 4,233 $ 113,377 $ 14,851,972
Other debt security......................... 44,105 - 8,821 35,284
U.S. Treasuries obligations................. 1,996,974 21,463 - 2,018,437
----------------------------------------------------------------
TOTAL DEBT SECURITIES AVAILABLE FOR SALE 17,002,195 25,696 122,198 16,905,693
Other securities............................ 1,167,437 - - 1,167,437
----------------------------------------------------------------
TOTAL SECURITIES AVAILABLE FOR SALE $ 18,169,632 $ 25,696 $ 122,198 $ 18,073,130
================================================================
December 31, 1995
- -----------------
SECURITIES AVAILABLE FOR SALE:
Mortgage-backed securities.................$ 15,709,878 $ 101,913 $ 31,575 $ 15,780,216
Other debt security......................... 107,987 4,225 - 112,212
U.S. Treasuries obligations................. 1,994,908 39,466 - 2,034,374
----------------------------------------------------------------
TOTAL DEBT SECURITIES AVAILABLE FOR SALE 17,812,773 145,604 31,575 17,926,802
Other securities............................ 1,022,900 - - 1,022,900
----------------------------------------------------------------
TOTAL SECURITIES AVAILABLE FOR SALE $ 18,835,673 $ 145,604 $ 31,575 $ 18,949,702
================================================================
</TABLE>
The carrying value of mortgage-backed securities consist of the following:
<TABLE>
<CAPTION>
December 31,
1996 1995
------------------------------
<S> <C> <C>
Certificates of participation in pools of:
Residential mortgages issued by FNMA and FHLMC............................... $ 3,505,923 $ 6,336,580
Residential mortgages guaranteed by GNMA..................................... 2,784,333 3,380,085
Collateralized mortgage obligations:
Issued by FNMA and FHLMC..................................................... 8,561,716 6,063,551
-------------------------------
$ 14,851,972 15,780,216
===============================
</TABLE>
21
<PAGE> 22
SUMMIT BANCORP
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- CONTINUED
The amortized cost and estimated fair value of securities at December 31, 1996,
by contractual maturity, are shown below. Actual maturities may differ from
contractual maturities because borrowers may have the right to call or prepay
obligations.
<TABLE>
<CAPTION>
Amortized Estimated
Cost Fair Value
------------------------------------
<S> <C> <C>
SECURITIES AVAILABLE FOR SALE:
Within one year................................................................$ 708,740 $ 707,752
Due after 1 year through 5 years................................................ 4,515,409 4,523,419
Due after 5 years through 10 years.............................................. 3,862,050 3,837,265
Due after 10 years.............................................................. 7,915,996 7,837,257
Other securities................................................................ 1,167,437 1,167,437
-----------------------------------
TOTAL SECURITIES AVAILABLE FOR SALE............................................$ 18,169,632 $ 18,073,130
===================================
</TABLE>
Proceeds from sales of securities classified as available for sale during 1996
and 1995 were $11,313,757 and $5,439,677 respectively. Gross gains of $52,703
and $8,922 respectively were realized on those sales. Gross losses of $7,156 and
$28,431 were realized on those sales. At December 31, 1996 and 1995, securities
with a carrying amount of $888,575 and $270,000 were pledged as collateral for
public funds or other obligations.
During 1995, the Company sold a mortgage-backed security classified as held to
maturity for asset/liability purposes. As a result, all remaining held to
maturity securities were transferred to the available for sale portfolio.
Proceeds from this sale totaled $2,022,223 resulting in a gross gain of $34,432.
The amortized cost of the remaining held to maturity portfolio transferred to
available for sale was $5,734,526. The unrealized loss on these securities was
$72,148 on the date of transfer.
At December 31, 1996, there were no holdings of any one issuer, other than the
U.S. Government or its agencies and corporations, in an amount greater than 10%
of shareholders' equity.
NOTE D -
LOAN SERVICING
The unpaid principal balance of mortgage loans serviced for others, which are
not included on the balance sheet, was $11,528,000 and $12,353,000 at December
31, 1996 and 1995. The balance of loans serviced for others related to servicing
rights that have been capitalized was $8,876,000 and $6,411,000. The remaining
balance of loans serviced for others also have servicing rights associated with
them; however, these servicing rights arose prior to adoption of SFAS No. 122,
and accordingly, have not been capitalized on the balance sheet.
The carrying value and fair value of capitalized loan servicing rights was
$89,000 and $72,000 as of December 31, 1996 and 1995.
NOTE E
ALLOWANCE FOR LOAN LOSSES
Changes in the allowance for loan losses for the years ending December 31, 1996
and 1995 were as follows:
<TABLE>
<CAPTION>
1996 1995
--------------------------
<S> <C> <C>
Balance at beginning of year..................................................... $ 739,062 $ 618,788
Charge-offs...................................................................... (126,326) (66,011)
Recoveries....................................................................... 40,069 86,285
Provision for loan losses........................................................ 185,000 100,000
--------------------------
Balance at end of year........................................................... $ 837,805 $ 739,062
==========================
</TABLE>
The balance of impaired loans was $275,483 and $48,244 at December 31, 1996 and
1995, respectively, with $43,987 and $7,237 of the allowance for loan losses
allocated to them, respectively for 1996 and 1995, although the entire allowance
remains available for charge-offs of any loan.
The average balance of impaired loans was $171,200 for 1996 and $68,100 for
1995. No interest income was recognized on impaired loans.
22
<PAGE> 23
SUMMIT BANCORP
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- CONTINUED
Total loans on nonaccrual status at December 31, 1996 and 1995 were $275,483 and
$184,202, respectively. Impaired loans at December 31, 1996 and 1995 were also
on nonaccrual status.
NOTE F -
LOANS TO RELATED PARTIES
The Company has granted loans to officers and directors of the Company and to
their associates. A summary of aggregate related party loan activity, for loans
totaling $60,000 or more to any one related party for 1996, is as follows:
<TABLE>
<CAPTION>
<S> <C>
Balance, January 1, 1996.........................................$ 2,018,576
New loans......................................................... 524,415
Repayments........................................................ (582,985)
Other due to officer or director changes.......................... (365,739)
-----------
Balance, December 31, 1996.......................................$ 1,594,267
===========
</TABLE>
NOTE G -
DEPOSITS
At December 31, 1996 and 1995, the Bank had customer certificates of deposit in
denominations of $100,000 or more aggregating $9,991,000 and $9,762,000,
respectively. Interest on certificates of deposit in denominations of $100,000
or more during 1996 and 1995 totaled $552,000 and $463,000, respectively.
Included in certificates of deposit, the Bank had IRA accounts of $100,000 or
more aggregating $1,663,000 and $1,211,000 at December 31, 1996 and 1995,
respectively.
At year end 1996, stated maturities of time deposits were as follows:
<TABLE>
<CAPTION>
<S> <C>
1997 $ 22,948,566
1998 7,740,417
1999 2,903,417
2000 315,501
2001 1,528,808
Thereafter 54,781
--------------
$ 35,491,490
==============
</TABLE>
NOTE H -
BORROWINGS
At December 31, 1996, the Bank has a line of credit available enabling it to
borrow up to $10,000,000 from the Federal Home Loan Bank (FHLB). There was
$5,300,000 outstanding as of December 31, 1996 and $5,150,000 outstanding as of
December 31, 1995 from the FHLB. Of the total outstanding, there were $1,300,000
in short-term advances with original maturities of less than 90 days and
$4,000,000 in long-term advances. $1,000,000, $2,000,000 and $1,000,000 are due
to mature respectively in 1997, 1998 and 1999. The average borrowing rate for
outstanding advances was approximately 5.87% at December 31, 1996 and 6.26% at
December 31, 1995. Average outstanding balances during 1996 and 1995 were
$5,535,000 and $4,236,000 respectively with approximate weighted average rates
of 5.80% and 6.24%, respectively. Additional borrowings were obtained from
repurchase agreements in 1995. The average outstanding balance during 1995 was
$2,085,000 with an approximate weighted average rate of 6.01%. There were no
repurchase agreements entered into during 1996. At December 31, 1995, $500,000
was borrowed from a correspondent bank. The maximum amount of short-term
borrowings at any month end was $9,100,000 during 1996 and $10,362,000 during
1995. Advances under the FHLB agreement are collateralized by a blanket pledge
of the Company's residential mortgage loan portfolio and the Company's FHLB
stock.
23
<PAGE> 24
SUMMIT BANCORP
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- CONTINUED
NOTE I -
REGULATORY MATTERS
The Company and Bank are subject to regulatory capital requirements administered
by federal banking agencies. Capital adequacy guidelines and prompt corrective
action regulations involve quantitative measures of assets, liabilities, and
certain off-balance-sheet items calculated under regulatory accounting
practices. Capital amounts and classifications are also subject to qualitative
judgments by regulators about components, risk weightings, and other factors,
and the regulators can lower classifications in certain cases. Failure to meet
various capital requirements can initiate regulatory action that could have a
direct material effect on the financial statements.
The prompt corrective action regulations provide five classifications, including
well capitalized, adequately capitalized, undercapitalized, significantly
undercapitalized, and critically undercapitalized, although these terms are not
used to represent overall financial condition. If adequately capitalized,
regulatory approval is required to accept brokered deposits. If
undercapitalized, capital distributions are limited, as is asset growth and
expansion, and plans for capital restoration are required. The minimum
requirements are:
<TABLE>
<CAPTION>
Capital to risk-
weighted assets
---------------- Tier 1 capital
Total Tier 1 to average assets
----- ------ -----------------
<S> <C> <C> <C>
Well capitalized 10% 6% 5%
Adequately capitalized 8% 4% 4%
Undercapitalized 6% 3% 3%
</TABLE>
At year end, consolidated and Bank actual capital levels (in millions) and
minimum required levels were:
<TABLE>
<CAPTION>
Minimum Required
To be Well
Minimum Required Capitalized Under
For Capital Prompt Corrective
Actual Adequacy Purposes Action Regulations
------ ----------------- ------------------
Amount Ratio Amount Ratio Amount Ratio
------ ----- ------ ----- ------ -----
1996
- ----
<S> <C> <C> <C> <C> <C> <C>
Total capital (to risk weighted assets)
Consolidated $ 8.0 14.1% $ 4.5 8.0% $ 5.7 10.0%
Bank $ 7.7 13.6% $ 4.5 8.0% $ 5.7 10.0%
Tier 1 capital (to risk weighted assets)
Consolidated $ 7.3 12.8% $ 2.3 4.0% $ 3.4 6.0%
Bank $ 5.9 10.4% $ 2.3 4.0% $ 3.4 6.0%
Tier 1 capital (to average assets)
Consolidated $ 7.3 9.4% $ 3.1 4.0% $ 3.9 5.0%
Bank $ 5.9 7.5% $ 3.1 4.0% $ 3.9 5.0%
1995
- ----
Total capital (to risk weighted assets)
Consolidated $ 7.3 14.7% $ 4.0 8.0% $ 5.0 10.0%
Bank $ 7.3 14.6% $ 4.0 8.0% $ 5.0 10.0%
Tier 1 capital (to risk weighted assets)
Consolidated $ 6.6 13.2% $ 2.0 4.0% $ 3.0 6.0%
Bank $ 6.5 13.1% $ 2.0 4.0% $ 3.0 6.0%
Tier 1 capital (to average assets)
Consolidated $ 6.6 9.8% $ 2.7 4.0% $ 3.4 5.0%
Bank $ 6.5 9.7% $ 2.7 4.0% $ 3.4 5.0%
</TABLE>
The Company and Bank at December 31, 1996 and 1995 were categorized as well
capitalized.
24
<PAGE> 25
SUMMIT BANCORP
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- CONTINUED
NOTE J -
COMMITMENTS AND CONTINGENCIES
The Company has entered into a lease for an office and financial service center
located in Akron, Ohio, with a limited partnership. Two members of the Board of
Directors serve as partners of the lessor organization. The agreement provides
for lease payments of $108,216 per year over a five-year term beginning January
2, 1996. The lease contains options for four additional terms of five years
each. In 1995, the Bank entered into a five year lease agreement for a financial
service center in Hudson, Ohio. The lease agreement provides for lease payments
of $19,308 per year. The lease includes the option to renew for five years.
The Bank also leases certain of its equipment under operating leases. Rental
expense from all operating leases totaled $134,330 and $107,133 for the years
ended December 31, 1996 and 1995, respectively.
Minimum future lease payments are as follows:
<TABLE>
<CAPTION>
Year ending December 31
-----------------------
<S> <C>
1997.................................... $ 134,544
1998.................................... 128,694
1999.................................... 127,524
2000.................................... 122,697
$ 513,359
========
</TABLE>
NOTE K -
INCOME TAXES
The provision for income taxes consists of the following components:
<TABLE>
<CAPTION>
1996 1995
---- ----
<S> <C> <C>
Current tax expense .....................................$ 490,033 $ 238,443
Deferred tax expense (benefit) .......................... (85,033) 38,807
-------------------------
Total provision for income taxes.........................$ 405,000 $ 277,250
=========================
</TABLE>
The sources of gross deferred tax assets and gross deferred tax liabilities at
December 31, are as follows:
<TABLE>
<CAPTION>
1996 1995
-------------------
<S> <C> <C>
Items giving rise to deferred tax assets:
Allowance for loan losses..........................................................$ 255,041 $ 214,455
Securities equity valuation account................................................ 32,200 --
Deferred compensation.............................................................. 43,135 --
Other.............................................................................. 31,079 26,597
Items giving rise to deferred tax liabilities:
Depreciation....................................................................... (37,569) (54,825)
FHLB stock dividends............................................................... (65,858) (40,927)
Mortgage servicing rights.......................................................... (30,365) (24,402)
Securities equity valuation account................................................ -- (17,859)
Other.............................................................................. (3,293) (13,761)
-------------------------
Net deferred tax assets.................................................................$ 224,370 $89,278
=========================
</TABLE>
25
<PAGE> 26
SUMMIT BANCORP
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- CONTINUED
The difference between the statutory federal income tax rate and the effective
federal income tax rate is as follows:
<TABLE>
<CAPTION>
1996 1995
---- ----
<S> <C> <C>
Statutory federal income tax rate..................................................... 34.0% 34.0%
Tax exempt income..................................................................... - (4.0)
Tax credit ........................................................................... (2.2) -
Other................................................................................. 1.8 (1.0)
------------------------
Effective federal income tax rate..................................................... 33.6% 29.0%
========================
</TABLE>
As of December 31, 1996, the Company has $185,700 of tax credits from an
investment in a low income housing project available to offset taxable income
through 2005.
NOTE L -
STOCK INCENTIVE PLAN
Under the plan, options have been granted to key personnel for terms up to 10
years at not less than fair market value of the shares at the dates of grant,
and the amount first exercisable in a particular calendar year may not exceed
$100,000 for any one person. At December 31, 1996, there are no shares of the
Company's common stock available for future grants in connection with the stock
incentive plan.
Information about options granted is as follows:
<TABLE>
<CAPTION>
1996 1995
---------------------------- -----------------------------
Weighted Weighted
Number of Average Number of Average
Options Exercise Price Options Exercise Price
--------------------------------------------------------------
<S> <C> <C> <C> <C>
Options outstanding January 1 21,450 $ 26.80 21,450 $ 26.80
Options granted 1,950 35.79
Options forfeited (250) 27.00
------- ------
Options outstanding December 31 23,150 27.55 21,450 26.80
====== ======
Options exercisable 16,960 $ 26.06 14,920 $ 25.71
No options were exercised in 1996 or 1995.
</TABLE>
The Company authorized and granted 3,600 shares of restricted stock (RSA) to an
executive officer of the Company as of August 15, 1996 at the market value of
the Company's common shares on that date. Restrictions on 800 RSA shares lapsed
at the date of grant. The remaining RSA restrictions lapse over a two year
period ending August 15, 1998. Compensation expense related to the RSA was
$48,408.
As of December 31, 1996, 8,500 stock appreciation rights (SARs) are outstanding
and fully vested. The SARs were issued at a grant price of $33.25 per share. In
1996, 1,500 SARs terminated unexercised pursuant to the provisions of the plan.
Compensation expense related to the SARs was $57,375 in 1996. No compensation
expense was recognized in 1995.
26
<PAGE> 27
SUMMIT BANCORP
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- CONTINUED
NOTE M -
FAIR VALUES OF FINANCIAL INSTRUMENTS
The following table shows the estimated fair value of the Company's financial
instruments and the related carrying values at December 31, 1996.
<TABLE>
<CAPTION>
DECEMBER 31, 1996 DECEMBER 31, 1995
CARRYING ESTIMATED CARRYING ESTIMATED
AMOUNT FAIR VALUE AMOUNT FAIR VALUE
--------------------------------------------------------------
<S> <C> <C> <C> <C>
Cash and equivalents............................... $ 2,111,588 $ 2,111,588 $ 3,432,431 $ 3,432,431
Securities......................................... 18,073,130 18,073,130 18,949,702 18,949,702
Mortgage loans originated and held for sale........ 3,527,817 3,527,817 1,768,019 1,805,092
Loans, net of allowance for loan losses............ 55,177,493 53,874,505 48,576,954 47,796,000
Accrued interest receivable........................ 486,023 486,023 480,115 480,115
Mortgage servicing rights.......................... 89,308 89,308 71,772 71,772
Demand and savings deposits........................ (32,270,435) (32,270,435) (30,058,531) (30,058,531)
Time deposits...................................... (35,491,490) (35,597,321) (31,538,232) (31,722,000)
Borrowings......................................... (5,300,000) (5,273,000) (5,650,000) (5,674,000)
Accrued interest payable........................... (243,687) (243,687) (293,774) (293,774)
</TABLE>
For purposes of the above disclosures of estimated fair value, the following
assumptions were used as of December 31, 1996. The estimated fair value for cash
and cash equivalents is considered to approximate cost. The estimated fair value
for securities is based on quoted market values for the individual securities or
for equivalent securities. The estimated fair value of mortgage loans originated
and held for sale is the commitment price for the loans. Carrying value is
considered to approximate fair value for loans that contractually reprice at
intervals of less than six months, for short-term borrowings, and for deposit
liabilities subject to immediate withdrawal. The fair values of fixed-rate
loans, loans that reprice less frequently than each six months and time deposits
are approximated by a discount rate value technique utilizing estimated market
interest rates as of December 31, 1996. The estimated fair value for accrued
interest receivable, mortgage servicing rights and accrued interest payable is
considered to approximate cost. The fair values of unrecorded commitments at
December 31, 1996 are not material.
While these estimates are based on management's judgment of the appropriate
valuation factors, there is no assurance that were the Company to have
liquidated such items the estimated fair values would necessarily have been
realized. The estimated fair values should not be considered to apply at
subsequent dates.
Other assets and liabilities of the Company that are not defined as financial
instruments are not included in the above disclosures. These would include,
among others, such items as property and equipment, financing leases, and the
intangible value of the Company's customer base and profit potential.
NOTE N -
FINANCIAL INSTRUMENTS WITH OFF-BALANCE SHEET RISK AND CONCENTRATIONS OF CREDIT
RISK
There are various contingent liabilities that are not reflected in the financial
statements, including claims and legal actions arising in the ordinary course of
business. In the opinion of management, after consultation with legal counsel,
the ultimate disposition of these matters is not expected to have a material
effect on financial condition or results of operations.
The Company is a party to financial instruments with off-balance sheet risks in
the normal course of business to meet the financing needs of its customers.
These financial instruments include commitments to extend credit and standby
letters of credit. These instruments involve, to varying degrees, elements of
credit or interest rate risk in excess of the amounts recognized in the balance
sheets.
27
<PAGE> 28
SUMMIT BANCORP
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- CONTINUED
Loan commitments are made to accommodate the financial needs of the Company's
customers. Standby letters of credit commit the Company to make payments on
behalf of customers when certain specified future events occur. Traditionally,
standby letters of credit expire unfunded.
Both arrangements have credit risk essentially the same as that involved in
extending loans to customers and are subject to the Company's normal credit
policies. Collateral (e.g. securities, receivables, inventory and equipment) is
obtained based on management's credit assessment of the customer. The total
commitment amounts do not necessarily represent future cash disbursements, since
many of the commitments expire without being drawn upon. A summary of these
commitments and contingent liabilities follows:
<TABLE>
<CAPTION>
DECEMBER 31,
1996 1995
---- ----
<S> <C> <C>
Commitments to extend credit....................................$ 9,354,000 $ 10,046,000
Credit card arrangements........................................ 1,904,000 1,473,000
Standby letters of credit....................................... 537,500 148,000
</TABLE>
NOTE O -
PROFIT SHARING AND SAVINGS PLAN
The Company provides a profit sharing and savings plan which covers
substantially all employees after completing one year of service. Eligible
employees may contribute up to 15% of their compensation subject to a maximum
statutory limitation. The Company may make discretionary contributions. Employee
elective deferrals are 100% vested when made. Company discretionary
contributions are 100% vested after five years. The Company made discretionary
contributions of $27,700 for 1996 and $30,000 for 1995.
28
<PAGE> 29
SUMMIT BANCORP
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- CONTINUED
NOTE P -
SUMMIT BANCORP (PARENT COMPANY ONLY) FINANCIAL INFORMATION
BALANCE SHEETS
<TABLE>
<CAPTION>
DECEMBER 31
ASSETS 1996 1995
----------------------------
<S> <C> <C>
Cash and cash equivalents...........................................................$ 232,669 $ 20,523
Investment in subsidiaries.......................................................... 5,831,673 6,598,491
Loan to subsidiary.................................................................. 1,125,000 --
Other assets........................................................................ 43,629 35,785
TOTAL ASSETS...............................................................$ 7,232,971 $ 6,654,799
============================
LIABILITIES
Accrued expenses....................................................................$ 24,588 $ --
SHAREHOLDERS' EQUITY
Common stock........................................................................ 6,138,895 6,125,647
Unearned restricted stock awards.................................................... (100,800) --
Treasury stock...................................................................... (574,724) (512,532)
Retained earnings................................................................... 1,807,517 1,007,016
Securities equity valuation account................................................. (62,505) 34,668
----------------------------
TOTAL SHAREHOLDERS' EQUITY................................................. 7,208,383 6,654,799
----------------------------
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY.................................$ 7,232,971 $ 6,654,799
============================
STATEMENTS OF OPERATIONS For the Years Ended December 31, 1996 and 1995
1996 1995
----------------------------
Dividends from subsidiary bank......................................................$ 1,550,000 --
NONINTEREST EXPENSE
Amortization........................................................................ -- $ 43,489
Professional services............................................................... 29,126 6,318
Other operating costs............................................................... 27,622 20,179
TOTAL NONINTEREST EXPENSE.................................................. 56,748 69,986
---------------------------
Income (loss) before income taxes and equity in undistributed income of Bank ....... 1,493,252 (69,986)
Income tax benefit.................................................................. 8,000 8,000
Income (loss) before equity in undistributed income of the Bank 1,501,252 (61,986)
(Distributions in excess of earnings) equity in undistributed income of the Bank ... (700,751) 741,779
---------------------------
NET INCOME..........................................................................$ 800,501 $ 679,793
===========================
STATEMENTS OF CASH FLOWS For the Years Ended December 31, 1996 and 1995
1996 1995
----------------------------
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income.................................................................$ 800,501 $ 679,793
Adjustments to reconcile net income to net cash from operating activities:
Equity in undistributed income............................................. 700,751 (741,779)
Amortization............................................................... -- 43,489
Change in other assets and liabilities..................................... 14,438 (8,001)
---------------------------
Net cash from operating activities.................................................. 1,515,690 (26,498)
CASH FLOW FROM INVESTING ACTIVITIES:
Loan to subsidiary......................................................... (1,125,000) --
CASH FLOW FROM FINANCING ACTIVITIES:
Purchase of treasury stock................................................. (216,205) (443,972)
Proceeds from the sale of treasury stock................................... 37,661 29,974
---------------------------
Net cash used by financing activities............................................... (178,544) (413,998)
---------------------------
Net decrease in cash and cash equivalents........................................... 212,146 (440,496)
Cash and cash equivalents at the beginning of the year.............................. 20,523 461,019
---------------------------
CASH AND CASH EQUIVALENTS AT THE END OF THE YEAR....................................$ 232,669 $ 20,523
===========================
</TABLE>
29
<PAGE> 30
SUMMIT BANCORP
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- CONTINUED
NOTE Q -
PROPOSED AFFILIATION
The Company entered into an Agreement of Affiliation and Plan of Merger with
FirstFederal Financial Services Corp of Wooster, Ohio (FirstFederal) on December
30, 1996. Under the terms of the agreement, FirstFederal will exchange 1.87
shares of its common stock for each share of the Company's stock. Based on the
average of FirstFederal's closing bid and ask price of $39.375 on December 30,
1996, the transaction would be valued at approximately $17.3 million. The
merger, which will be accounted for as a pooling of interests, is expected to be
consummated during the third quarter of 1997, pending Summit Bancorp shareholder
approval, regulatory approval and other customary conditions of closing. The
transaction is expected to be a tax-free reorganization for federal income tax
purposes.
McDonald and Company Securities, Inc. is serving as the Company's financial
advisor in connection with this transaction.
Under the Merger Agreement, Summit has agreed to pay FirstFederal a fee of
$750,000 in the event the merger is not consummated and certain events occur.
30
<PAGE> 31
INDEPENDENT AUDITORS' REPORT
Board of Directors and Shareholders
Summit Bancorp
Akron, Ohio
We have audited the accompanying consolidated balance sheets of Summit Bancorp
as of December 31, 1996 and 1995, and the related consolidated statements of
income, changes in shareholders' equity, and cash flows for the years then
ended. These financial statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on these financial
statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the financial position of Summit Bancorp as of
December 31, 1996 and 1995, and the results of its operations and its cash flows
for the years then ended in conformity with generally accepted accounting
principles.
Crowe, Chizek and Company LLP
Columbus, Ohio
February 7, 1997
31
<PAGE> 32
Item 8. Changes in and Disagreements with Accountants on Accounting and
- -----------------------------------------------------------------------
Financial Disclosure
- --------------------
None.
Part III
- --------
Item 9. Directors and Executive Officers of the Registrant
- ----------------------------------------------------------
<TABLE>
<CAPTION>
DIRECTORS:
PRINCIPAL OCCUPATION FOR
NAME AGE TERM OF OFFICE AS A DIRECTOR PAST FIVE YEARS
- --------------------- ----- ---------------------------------------------- -----------------------------------
TERM EXPIRING IN 1997:
- ----------------------
<S> <C> <C> <C>
Robert G. Andrews 57 Company Director since June 1991 President, Empire Corporation
Bank Director since January 1991
W. Gary Diehl(3) 49 Company Director since June 1991 President, Adro, Inc.;
Bank Director since January 1991 President, Vinyl Advantage Inc.
Nicholas T. George(1) 52 Company Director since June 1991 President, Nicholas T. George &
Bank Director since January 1991 Associates
Philip P. Lutz, Jr.(1,2,3) 66 Company Director since July 1989 Retired
Bank Director since January 1991
David C. Vernon(1) 56 Company Director since July 1989 Chairman of the Board, President and
Bank Director since January 1991 CEO of the Company since November
SBIC Director since July 1996 1988 and of Summit Bank since its
inception in January 1991.
TERM EXPIRING IN 1998:
- ----------------------
Charles E. Conner(2,3) 45 Company Director since July 1989 CEO, Alcon Tool Company
Bank Director since January 1991
John J. Olszeski 65 Company Director since June 1991 President, Hartville Foods, Inc.
Bank Director since January 1991
Eva H. Poinar(1,2) 79 Company Director since June 1991 President, Curtis Steel & Supply, Inc.
Bank Director since January 1991
Jerry F. Whitmer(1,2,3) 61 Company Director since July 1989 Principal, Brouse & McDowell
Bank Director since January 1991 L.P.A.
Mr. Nicholas T. George is a director of Ravens Metal Products, Inc. No other
director serves as a director of any publicly held company other than the
Company.
There are (and there have been) no legal proceedings material to an evaluation
of the ability of any director or executive officer of the Company to act in
such capacity or of his or her integrity.
- --------------------------------------------------------------------------------
<FN>
1 Executive Committee Member
2 Compensation Committee Member
3 Audit Committee Member
</TABLE>
32
<PAGE> 33
ITEM 9. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT CONT'D.
- ------------------------------------------------------------------
<TABLE>
<CAPTION>
EXECUTIVE OFFICERS:
PRINCIPAL OCCUPATION AND
NAME AGE POSITIONS EMPLOYMENT HISTORY
- ---- --- --------- ------------------------
<S> <C> <C> <C>
Keith D. Anderson 41 Bank Senior Credit Officer since May National City Bank, 1990-1993 Credit
1993 Officer
William R. Carlyon 42 Bank Vice President and Senior Loan National City Bank, Asst. Vice
Officer since May 1993 President, Commercial Loans, February
1986 - August 1992
Deborah L. Jacob 42 Bank Senior Vice President since Bank Senior Vice President since
September 1995 and Company Secretary September 1995, Bank Vice President,
since May 1989 May 1989-September 1995
Raymond J. Kline 39 Hudson Community Executive since Fifth Third Bank, Officer, Stow Retail
August 1996 Center, September 1987-July 1996
Paul A. Manghillis 43 Bank Vice President since May 1993 Society National Bank, Vice President,
Commercial Banking, March 1990 -
May 1993
Charles P. Murphy 43 Bank Comptroller since November 1990 Bank Comptroller since November
1990, CPA since 1983
Jon W. Park 35 Bank Vice President and Chief Financial Ernst & Young LLP, 1984-1996,
Officer since December 1995 CPA since 1984
Della E. Porter 32 Bank Vice President since September 1996 Key Bank, Assistant Vice President,
Commercial Banking, April 1993-
August 1996
David C. Ray 50 Bank Vice President, Mortgage Lending NVR Inc., Mortgage Banker,
since September 1996 September 1988-July 1996
Donald G. Schwarber 53 Bank Vice President, Mortgage Lending Mortgage Loan Officer and Vice
since October 1991 President, Union National Mortgage
Company, March 1980 - October 1991
David C. Vernon 56 Chairman of the Board, President and Chairman of the Board, President and
Chief Executive Officer of the Company Chief Executive Officer of the Company
since November 1988 and the Bank since and Bank since inception
inception
</TABLE>
33
<PAGE> 34
Item 10. Executive Compensation
- -------------------------------
<TABLE>
<CAPTION>
SUMMARY COMPENSATION TABLE
- -----------------------------------------------------------------------------------------------------------------------------------
Annual Compensation
Long Term Compensation
----------------------------------------------
Awards Payouts
- --------------------- -------- ---------- ---------- --------------- ----------- ------------------ --------------- -------------
Securities
Underlying Long Term
Restricted Options/Stock Incentive
Name and Principal Other Annual Stock Appreciation Plan Payouts All Other
Position Year Salary Bonus Compensation Awards(2) Rights (#) Compensation
- --------------------- -------- ---------- ---------- --------------- ----------- ------------------ --------------- -------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
David C. Vernon 1996 $108,000 $ 13,978 $26,323(1) $28,800 50 Options $0 $ 4,485(3)
Chairman of the $ 22,921(4)
Board, President and $ 3,206(5)
Chief Executive
Officer 1995 $108,000 $ 25,000 -- 5,000 SARs $0 $ 5,142(3)
$ 19,951(4)
$ 3,206(5)
1994 $ 96,000 $ 10,000 -- 2,000 Options $0 $ 4,123(3)
$ 8,296(4)
$ 3,206(5)
- --------------------- -------- ---------- ---------- --------------- ----------- ------------------ --------------- -------------
Donald G. Schwarber 1996 $108,000 $102,216 -- -- -- -- $ 4,485(3)
Vice President, 1995 $108,000 $ 41,854 -- -- -- -- $ 2,893(3)
Mortgage Lending 1994 $108,000 $ 31,398 -- -- -- -- $ 5,759(3)
- -----------------------------------------------------------------------------------------------------------------------------------
<FN>
- --------
1 The total includes a $25,323 reimbursement for the payment of taxes.
2 The 3,600 shares of restricted stock (RSA) were granted as of August 15,
1996 at the market value of the Company's common shares on that date (valued at
$129,600 in aggregate on date of grant). Restrictions on 800 RSA shares lapsed
at the date of grant. Of the remaining 2,800 RSA shares, restrictions on 1,200
shares lapse on August 15, 1997 and restrictions on 1,600 shares lapse on August
15, 1998. Restrictions lapse immediately in the event of a change in control in
the Company.
3 Represents employer 401(k) Plan matching contributions.
4 Represents amounts earned, but not paid, related to Mr. Vernon's salary
continuation agreement.
5 Represents payments under a life insurance arrangement.
34
</TABLE>
<PAGE> 35
OPTIONS/STOCK APPRECIATION RIGHTS GRANTED IN 1996
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Number of Securities Underlying % of Total Options/Stock
Options/Stock Appreciation Rights Appreciation Rights Granted to
Name Granted (#) Employees in 1996 Exercise Price Expiration Date
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
David C. Vernon
Chairman of the Board, President
and Chief Executive Officer 50 Options 3.2% $35.00 4/11/06
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
AGGREGATED OPTIONS/STOCK APPRECIATION RIGHTS EXERCISED IN 1996 AND
FISCAL YEAR-END 1996 OPTIONS/STOCK APPRECIATION RIGHTS VALUES
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Number of Securities Underlying Unexercised Value of Unexercised In-The-Money
Options/Stock Appreciation Rights at Fiscal Options/Stock Appreciation Rights at Fiscal
Year-End 1996 (#) Year-End 1996
-----------------------------------------------------------------------------------------
Name Exercisable/Unexercisable Exercisable/Unexercisable
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
David C. Vernon 10,800 Options 1,250 Options $157,900 $12,100
Chairman of the Board, President and Chief 5,000 SARs $ 33,750
Executive Officer
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
NOTE: THERE WERE NO STOCK OPTIONS OR STOCK APPRECIATION RIGHTS EXERCISED IN
1996
EMPLOYMENT AGREEMENT
The Company has entered into an employment agreement and a salary continuation
agreement with Mr. Vernon, covering his service as an executive officer of the
Company and the Bank pursuant to which Mr. Vernon receives a salary of $108,000
per annum subject to such bonuses and increases, if any, as may be determined in
the discretion of the Board of Directors of the Company.
The salary continuation agreement provides for annual payments of $39,962 over a
fifteen-year period to either Mr. Vernon or his estate upon the occurrence of
his normal retirement at age sixty-five, disability, death, or in the event
Summit Bank, or Summit Bancorp, experiences a change in control. In addition,
should Mr. Vernon retire before age sixty-five, he shall receive the vested
portion of the above annual payment over a fifteen-year period. Such payment
vests at the rate of $3,074 per year of active employment over a thirteen year
period which commenced July 15, 1994.
TERMINATION AGREEMENT
On August 15, 1996 the Board of Directors adopted and entered into a Termination
Agreement (the Agreement) with the Chief Executive Officer (CEO).
The Board of Directors approved and adopted this Agreement to assure the present
and future continuity of executive management and as an inducement for the CEO
to remain in the employment of the Company and the Bank should a change of
control occur.
The Termination Agreement provides that upon termination of employment, as
defined in the Agreement, within two years following a change of control, unless
the CEO is terminated for good cause as defined in the Agreement, he will be
entitled to severance compensation.
In the event of the termination of the CEO's employment as described above, he
shall be entitled to receive either a lump sum cash payment equal to two years
of compensation (base salary plus incentive) or upon his election,
two years of compensation (base salary plus incentive) payable in equal monthly
payments, in cash, without interest.
Following the termination of the CEO's employment, the Company shall continue
his coverage in the Bank's health and life insurance plans, and at the same
levels that had been provided immediately prior to his termination
of employment, for a period of two years.
35
<PAGE> 36
Payments made to the CEO under the terms of the Agreement shall be included
within the definition of compensation for all qualified and non-qualified
retirement plans of the Company or the Bank.
In the event of the termination of employment of the CEO as defined in the
Agreement, he shall be entitled to one year of out-placement services following
termination of employment. All costs of such services shall be paid for by the
Company.
Item 11. Security Ownership of Certain Beneficial Owners and Management
--------------------------------------------------------------
<TABLE>
<CAPTION>
NAME SHARES BENEFICIALLY OWNED PERCENT
- ------------------------ ------------------------- -------------
DIRECTORS:
- ----------
<S> <C> <C>
Robert G. Andrews 8,751 3.72%
Akron, Ohio
Charles E. Conner 10,000 4.25%
Akron, Ohio
W. Gary Diehl 4,400 1.87%
Akron, Ohio
Nicholas T. George 2,020 .86%
Akron, Ohio
Philip P. Lutz, Jr. 2,600 1.11%
Hudson, Ohio
John J. Olszeski 1,334 .57%
Hartville, Ohio
Eva H. Poinar 6,261 2.66%
Akron, Ohio
David C. Vernon 20,755(1) 8.44%(1)
Akron, Ohio
Jerry F. Whitmer 2,000 .85%
Akron, OH
OTHER EXECUTIVE OFFICER:
- ------------------------
Donald G. Schwarber 250 .10%
ALL DIRECTORS AND EXECUTIVE
- ---------------------------
OFFICERS OF THE COMPANY AND
- ---------------------------
SUMMIT BANCORP AS A GROUP
- -------------------------
(13 PERSONS): 62,671(2) 25.15%(2)
- ------------
Except as disclosed in the table above, no other beneficial owner is known to
management as a holder of five percent (5%) or more of the total shares issued
and outstanding on March 12, 1997.
- -----------------------------------------------------
<FN>
1 Includes 10,800 stock options which are exercisable within 60 days.
2 Includes 15,680 stock options which are exercisable within 60 days.
</TABLE>
36
<PAGE> 37
Item 12. Certain Relationships and Related Transactions
----------------------------------------------
Summit Bank leases space at 2680 West Market Street from Summit Properties
Limited Partnership. The partners include David C. Vernon, Chairman of the
Board, President and Chief Executive Officer of the Company and Summit Bank, and
Philip P. Lutz, Jr., each of whom is a director of the Company and Summit Bank.
The annual lease rate paid by the Bank is $16.10 per square foot. The Company
believes the annual lease rate paid by the Company is consistent with other
lease arrangements in the area.
Jerry F. Whitmer is a director of the Company and a director of Summit Bank and
is a shareholder in the law firm of Brouse & McDowell, a legal professional
association which provides legal counsel to the Company and Summit Bank.
Item 13. Exhibits, Financial Statement Schedules and Reports on Form 8-K
- ------------------------------------------------------------------------
(a)(1) Financial Statements
--------------------
Page
----
Independent Auditors' Report 31
Consolidated Balance Sheets 14
Consolidated Statements of Income 15
Consolidated Statements of Shareholders' Equity 16
Consolidated Statements of Cash Flows 17
Notes to Consolidated Financial Statements 18
(2) Financial Statement Schedules
-----------------------------
All schedules are omitted because they are not applicable or the
required information is shown in the financial statements or notes
thereto.
37
<PAGE> 38
(3) Exhibits
--------
(2) Agreement of Affiliation and Plan of Merger dated as of
December 30, 1996 between the Company FirstFederal Financial
Services Corp (filed herewith)
(3)(i) Third Amended and Restated Articles of Incorporation of the
Company (incorporated by reference to the Company's
Registration Statement on Form S-1; File No. 33-29708)
(3)(ii) Amended and Restated Code of Regulations of the Company
(incorporated by reference to the Company's Registration
Statement on Form S-1; File No. 33-29708)
(4)(a) Form of Shares Certificate (incorporated by reference to the
Company's Registration Statement on Form S-1; File No.
33-29708)
(4)(b) Rights of Shareholders (included in Exhibit (3) (a)
(incorporated by reference to the Company's Registration
Statement on Form S-1; File No. 33-29708)
(10)(b) Summit Bancorp 1989 Stock Incentive Plan (incorporated by
reference to the Company's Registration Statement on Form S-1;
File No. 33-29708)
(10)(c) Employment Agreement dated as of January 1, 1995 between the
Bank and David C. Vernon (incorporated by reference to the
Company's Annual Report on Form 10-KSB for the year ended
December 31, 1995)
(10)(d) Salary Continuation Agreement dated as of July 15, 1993
between the Bank and David C. Vernon (incorporated by
reference to the Company's Annual Report on Form 10-KSB for
the year ended December 31, 1995)
(10)(e) Restricted Stock Award Agreement dated as of August 15, 1996
between the Company and David C. Vernon (filed herewith)
(13) The Annual Report of the Company for the year ended December
31, 1996 is incorporated by reference into the text of Form
10-KSB
(21) Subsidiaries of the Registrant (filed herewith)
(23) Consent of Crowe Chizek and Company LLP (filed herewith)
(27) Financial Data Schedule (filed herewith)
(b) Reports on Form 8-K
-------------------
No reports on Form 8-K were filed by the Company during the fourth quarter of
the year ended December 31, 1996.
38
<PAGE> 39
SIGNATURES
----------
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
SUMMIT BANCORP SUMMIT BANCORP
By: /s/ David C. Vernon By: /s/ Jon W. Park
------------------------------------- ------------------------------
David C. Vernon Jon W. Park
Chairman of the Board, President and Vice President and Chief
Chief Executive Officer Financial Officer
Dated: March 13, 1997
Pursuant to the requirements of the Securities Exchange Act of 1934, this report
has been signed on this 13th day of March 1997 by the following persons
(including a majority of the Board of Directors of the registrant) in the
capacities indicated:
/s/ David C. Vernon /s/ Eva H. Poinar
- ------------------------------------- -------------------------------------
David C. Vernon Eva H. Poinar
Chairman of the Board, President and Director
Chief Executive Officer
/s/ W. Gary Diehl
/s/ Jerry F. Whitmer -------------------------------------
- ------------------------------------- W. Gary Diehl
Jerry F. Whitmer Director
Director
/s/ Nicholar T. George
/s/ Charles E. Conner -------------------------------------
- ------------------------------------- Nicholas T. George
Charles E. Conner Director
Director
/s/ John J. Olszeski
/s/ Philip P. Lutz, Jr. -------------------------------------
- ------------------------------------- John J. Olszeski
Philip P. Lutz, Jr. Director
Director
/s/ Robert G. Andrews
- -------------------------------------
Robert G. Andrews
Director
39
<PAGE> 40
SHAREHOLDER INFORMATION
- -----------------------
MARKET MAKERS
The shares of Summit Bancorp are publicly traded
under the symbol SBCP. The following companies are
market makers for Summit Bancorp:
The Ohio Company, Columbus, Ohio
Sweney Cartwright & Company, Columbus, Ohio
McDonald & Company Securities, Cleveland, Ohio
INVESTOR RELATIONS
Information requests should be directed to Jon W.
Park, Vice President and Chief Financial Officer
TRANSFER AGENT AND REGISTRAR
State Street Bank and Trust Company
225 Franklin Street
Boston, Massachusetts 02110
SUMMIT BANCORP
2680 West Market Street, Akron, Ohio 44333
(330) 864-8080, (330) 864-1298 - Fax
SUMMIT BANK
2680 West Market Street, Akron, Ohio 44333
(330) 864-8080, (330) 864-1298 - Fax
SUMMIT BANC INVESTMENTS
CORPORATION
2680 West Market Street, Akron, Ohio 44333
(330) 864-8080, (330) 864-1298 - Fax
40
<PAGE> 41
<TABLE>
<CAPTION>
BOARD OF DIRECTORS SUMMIT BANK ADVISORY BOARD
<S> <C>
ROBERT G. ANDREWS, HAMILTON S. AMER,
President, Empire Corporation President, A.J. Amer Agency, Inc.
CHARLES E. CONNER, GARY L. AMOS
CEO, Alcon Tool Company President, Amos Data Systems, Inc.
W. GARY DIEHL, ORVILLE JONES, JR.,
President, Adro, Inc. and President, Midland Commerce Group
President, Vinyl Advantage Inc. ROSE A.O. KLEIDON,
NICHOLAS T. GEORGE, ESQ., Vice President, Kleidon & Associates
President, Nicholas T. George & Associates EDWARD J. METZGER,
PHILIP P. LUTZ, JR., Former President, Metzger Photo Supply Company
Retired Banker RONALD C. MIDCAP, CPA,
JOHN J. OLSZESKI, Midcap and Company
President, Hartville Foods, Inc. TIMOTHY M. NEWMAN, M.D.
EVA H. POINAR, President, Rapid Response
President, Curtis Steel & Supply, Inc. J. JOSEPH PAYTON, D.O.,
DAVID C. VERNON, Fairlawn Family Practice
Chairman of the Board, President and Chief Executive DEBORAH M. PRINZ,
Officer Summit Bancorp and Summit Bank National Marketing Vice President,
JERRY F. WHITMER, ESQ., The Life Insurance Marketing Company
Brouse & McDowell, L.P.A. ALBERT C. VAN KIRK,
President and CEO, King's Medical Company
SUMMIT BANK OFFICERS SUMMIT BANK INVESTMENTS CORPORATION
ALAN W. SHALL,
DAVID C. VERNON, Vice President
Chairman of the Board, President and Chief Executive
Officer
DEBORAH L. JACOB,
Senior Vice President
JON W. PARK,
Vice President and Chief Financial Officer
RAYMOND J. KLINE
Hudson Community Executive
WILLIAM R. CARLYON,
Vice President and Senior Loan Officer
PAUL A. MANGHILLIS,
Vice President
DELLA E. PORTER,
Vice President
DAVID C. RAY,
Vice President, Mortgage Loan
DONALD G. SCHWARBER,
Vice President, Mortgage Loan
KEITH D. ANDERSON,
Senior Credit Officer
CHARLES P. MURPHY,
Comptroller
</TABLE>
41
<PAGE> 1
Exhibit 2
AGREEMENT OF AFFILIATION AND
PLAN OF MERGER
BY AND AMONG
FIRSTFEDERAL FINANCIAL SERVICES CORP,
AND SUMMIT BANCORP
Dated December 30, 1996
--
<PAGE> 2
<TABLE>
<CAPTION>
INDEX
-----
Page
----
<S> <C> <C>
ARTICLE I Definitions............................................................................................1
1.1 DEFINED TERMS...................................................................................1
1.2 ACCOUNTING TERMS................................................................................6
ARTICLE II Merger and Conversion of Shares........................................................................6
2.1 THE MERGER......................................................................................6
2.2 EFFECTIVE TIME..................................................................................7
2.3 ARTICLES OF INCORPORATION AND REGULATIONS.......................................................7
2.4 DIRECTORS AND OFFICERS..........................................................................7
2.5 CONVERSION AND EXCHANGE OF CAPITAL STOCK........................................................7
2.6 STOCK OPTIONS...................................................................................9
2.7 STOCK APPRECIATION RIGHTS.......................................................................9
ARTICLE III Representations and Warranties of Summit Bancorp.....................................................10
3.1 ORGANIZATION OF SUMMIT.........................................................................10
3.2 AUTHORITY AND APPROVAL.........................................................................10
3.3 CAPITAL STOCK..................................................................................11
3.4 SEC DOCUMENTS/REGULATORY FILINGS...............................................................11
3.5 SUBSIDIARIES...................................................................................11
3.6 AFFILIATE TRANSACTIONS.........................................................................12
3.7 BOOKS AND RECORDS..............................................................................12
3.8 FINANCIAL STATEMENTS...........................................................................12
3.9 ABSENCE OF CHANGES.............................................................................13
3.10 CONSENT........................................................................................13
3.11 TAXES..........................................................................................13
3.12 LITIGATION.....................................................................................14
3.13 COMPLIANCE WITH LAWS...........................................................................14
3.14 BENEFIT PLANS..................................................................................15
3.15 REAL PROPERTY..................................................................................16
3.16 ASSETS.........................................................................................17
3.17 INTELLECTUAL PROPERTY..........................................................................18
3.18 CONTRACTS......................................................................................18
3.19 POOLING OF INTERESTS...........................................................................19
3.20 RESERVED.......................................................................................19
3.21 LICENSES.......................................................................................19
3.22 INSURANCE......................................................................................20
3.23 BROKERS AND FINDERS............................................................................20
3.24 EMPLOYEES; LABOR RELATIONS.....................................................................20
3.25 HAZARDOUS SUBSTANCES...........................................................................21
3.26 LOANS..........................................................................................21
3.27 AGREEMENTS WITH REGULATORS.....................................................................22
3.28 VOTE REQUIRED..................................................................................22
</TABLE>
<PAGE> 3
<TABLE>
<S> <C> <C>
3.29 SECURITIES.....................................................................................22
3.30 INDEMNIFICATION................................................................................22
3.31 DISCLOSURE.....................................................................................22
ARTICLE IV Representations and Warranties of FirstFederal Financial..............................................23
4.1 ORGANIZATION OF FIRSTFEDERAL...................................................................23
4.2 AUTHORITY AND APPROVAL.........................................................................23
4.3 CAPITAL STOCK..................................................................................24
4.4 SEC DOCUMENTS/REGULATORY FILINGS...............................................................24
4.5 SUBSIDIARIES...................................................................................25
4.6 AFFILIATE TRANSACTIONS.........................................................................25
4.7 BOOKS AND RECORDS..............................................................................25
4.8 FINANCIAL STATEMENTS...........................................................................25
4.9 ABSENCE OF CHANGES.............................................................................26
4.10 CONSENT........................................................................................26
4.11 TAXES..........................................................................................26
4.12 LITIGATION.....................................................................................27
4.13 COMPLIANCE WITH LAWS...........................................................................27
4.14 BENEFIT PLANS..................................................................................28
4.15 REAL PROPERTY..................................................................................29
4.16 ASSETS.........................................................................................31
4.17 INTELLECTUAL PROPERTY..........................................................................31
4.18 CONTRACTS......................................................................................31
4.19 POOLING OF INTERESTS...........................................................................33
4.20 RESERVED.......................................................................................33
4.21 LICENSES.......................................................................................33
4.22 INSURANCE......................................................................................33
4.23 BROKERS AND FINDERS............................................................................34
4.24 EMPLOYEES; LABOR RELATIONS.....................................................................34
4.25 HAZARDOUS SUBSTANCES...........................................................................34
4.26 LOANS..........................................................................................35
4.27 AGREEMENTS WITH REGULATORS.....................................................................35
4.28 RESERVED.......................................................................................35
4.29 SECURITIES.....................................................................................35
4.30 DISCLOSURE.....................................................................................36
ARTICLE V Covenants.............................................................................................36
5.1 SUMMIT'S COVENANTS.............................................................................36
5.1.1 ACCESS TO INFORMATION .........................................................................36
5.1.2 CONDUCT OF BUSINESS ...........................................................................36
5.1.3 CORPORATE MATTER ..............................................................................36
5.1.4 DISTRIBUTION AND STOCK ........................................................................36
5.1.5 INSURANCE .....................................................................................37
5.1.6 EMPLOYEES .................................................................................... 37
5.1.7 NEW BUSINESS ..................................................................................37
5.1.8 AGREEMENTS ....................................................................................37
5.1.9 BOOKS AND RECORDS .............................................................................37
</TABLE>
<PAGE> 4
<TABLE>
<S> <C> <C>
5.1.10 COMPLIANCE WITH LAWS ............................................................................38
5.1.11 SHAREHOLDERS' MEETING ...........................................................................38
5.1.12 SOLICITATIONS ...................................................................................38
5.1.13 BREAK-UP FEE ....................................................................................39
5.1.14 CONFIDENTIALITY .................................................................................41
5.1.15 RESTRICTED STOCK ................................................................................41
5.2 FIRSTFEDERAL'S COVENANTS ........................................................................41
5.2.1 LISTING .........................................................................................41
5.2.2 RESERVED ........................................................................................41
5.2.3 EMPLOYEE BENEFIT PLANS ..........................................................................41
5.2.4 CONFIDENTIALITY .................................................................................41
5.3 MUTUAL COVENANTS.................................................................................42
5.3.1 POOLING OF INTEREST .............................................................................42
5.3.2 PROXY STATEMENT; REGISTRATION STATEMENT..........................................................43
5.3.3 DISCLOSURE ......................................................................................43
5.3.4 APPLICATIONS ....................................................................................43
5.3.5 MUTUAL INDEMNITY ................................................................................44
5.3.6 BEST EFFORTS ....................................................................................44
5.3.7 DELIVERY OF SUPPLEMENTS TO DISCLOSURE SCHEDULES .................................................45
ARTICLE VI Conditions Precedent to FirstFederal's Performance.....................................................45
6.1 REPRESENTATIONS AND WARRANTIES TRUE..............................................................45
6.2 PERFORMANCE OF SUMMIT............................................................................45
6.3 NO MATERIAL CHANGES..............................................................................45
6.4 CORPORATE APPROVAL...............................................................................45
6.5 CONSENTS.........................................................................................46
6.6 EMPLOYMENT AGREEMENTS............................................................................46
6.7 OPINION OF COUNSEL...............................................................................46
6.8 FIRSTFEDERAL'S DUE DILIGENCE.....................................................................46
6.9 REGULATORY APPROVAL..............................................................................46
6.10 POOLING OF INTEREST..............................................................................46
6.11 ACCOUNTANT'S LETTERS.............................................................................46
6.12 BANK SUBSIDIARY BOARD OF DIRECTORS...............................................................47
6.13 OFFICER'S CERTIFICATES ......................................................................... 47
ARTICLE VII Conditions to Obligations of Summit...................................................................47
7.1 FIRSTFEDERAL'S WARRANTIES........................................................................47
7.2 FIRSTFEDERAL'S PERFORMANCE.......................................................................47
7.3 OPINION OF FIRSTFEDERAL'S COUNSEL................................................................47
7.4 CORPORATE APPROVAL...............................................................................47
7.5 EMPLOYMENT AGREEMENTS............................................................................47
7.6 FIRSTFEDERAL BOARD OF DIRECTORS..................................................................47
7.7 FAIRNESS OPINION.................................................................................48
ARTICLE VIII The Closing..........................................................................................48
8.1 TIME AND PLACE...................................................................................48
8.2 CLOSING ESCROW...................................................................................48
</TABLE>
<PAGE> 5
<TABLE>
<S> <C> <C>
ARTICLE IX Costs and Publicity..................................................................................48
9.1 EXPENSES.......................................................................................48
9.2 PUBLICITY......................................................................................48
ARTICLE X Form of Agreement and Parties.........................................................................48
10.1 HEADINGS.......................................................................................48
10.2 MODIFICATION AND WAIVER........................................................................48
10.3 COUNTERPARTS...................................................................................49
10.4 RIGHTS OF PARTIES..............................................................................49
10.5 ASSIGNMENT.....................................................................................49
ARTICLE XI Termination..........................................................................................49
11.1 TERMINATION....................................................................................49
11.2 EFFECT OF TERMINATION..........................................................................50
ARTICLE XII Miscellaneous.......................................................................................50
12.1 NOTICES........................................................................................50
12.2 ENTIRE AGREEMENT...............................................................................51
12.3 COSTS..........................................................................................52
12.4 FAIR INTERPRETATION............................................................................52
12.5 SEVERABILITY...................................................................................52
12.6 EFFECT OF CLOSING..............................................................................52
12.7 GOVERNING LAW..................................................................................52
</TABLE>
<PAGE> 6
AGREEMENT OF AFFILIATION AND PLAN OF MERGER
-------------------------------------------
This AGREEMENT OF AFFILIATION AND PLAN OF MERGER ("Merger Agreement")
dated as of December ___, 1996, is made and entered into by and between
FIRSTFEDERAL FINANCIAL SERVICES CORP, an Ohio corporation with its principal
office located in Wooster, Wayne County, Ohio, and SUMMIT BANCORP, an Ohio
corporation with its principal office located in Akron, Summit County, Ohio.
WHEREAS, FirstFederal and Summit desire to effect a merger under the
authority and provisions of the corporation laws of the State of Ohio pursuant
to which, at the effective time, Summit will be merged into FirstFederal with
FirstFederal to be and become the surviving corporation;
WHEREAS, for federal income tax purposes, it is intended that the
merger shall qualify as a reorganization under the provisions of Section 368 of
the Code;
WHEREAS, for accounting purposes, it is intended that the merger be
accounted for as a "pooling of interests."
WHEREAS, FirstFederal presently intends to operate Summit Bank as an
autonomous wholly owned bank subsidiary of FirstFederal.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Merger Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
---------
DEFINITIONS
-----------
1.1 DEFINED TERMS. As used in this Merger Agreement, the following
terms have the following meanings unless the context clearly indicates otherwise
(terms defined in the singular to have the same meaning when used in the plural
and vice versa):
"ACQUISITION TRANSACTIONS" has the meaning set out in Section 5.1.12.
"AFFILIATE" means any Person that directly or indirectly controls or is
controlled by or is under common control with a Person.
"ASSETS" means all assets and properties of every kind, nature,
character and description (whether real, personal or mixed, whether tangible or
intangible, whether absolute, accrued, contingent, fixed or otherwise and
wherever situated), including the goodwill related thereto, operated, owned or
leased by Summit or FirstFederal, including without limitation cash, cash
equivalents, notes, securities, loans, chattel paper, documents, instruments,
general intangibles, real
<PAGE> 7
estate, equipment, goods and Intellectual Property, regardless of whether such
items appear on the Financial Statements.
"BANK SUBSIDIARY" means Summit Bank, a state chartered bank under the
laws of the State of Ohio.
"BOOKS AND RECORDS" means all files, documents, instruments, papers,
books and records relating to the Business or Condition of Summit or
FirstFederal, as the case may be, including without limitation Financial
Statements, tax returns and related work papers and letters from accountants,
budgets, pricing guidelines, ledgers, journals, minute books, stock transfer
ledgers, Contracts, Licenses, loans, customer lists, computer files and
programs, retrieval programs, operating data and plans and environmental studies
and plans.
"BUSINESS OR CONDITION OF SUMMIT" means the business, condition
(financial or otherwise), results of operations, Assets and prospects of Summit
taken as a whole.
"BUSINESS OR CONDITION OF FIRSTFEDERAL" means the business, condition
(financial or otherwise), results of operations, Assets and prospects of
FirstFederal taken as a whole.
"CERTIFICATE" has the meaning set out in Section 2.5(e).
"CERTIFICATE OF MERGER" has the meaning set out in Section 2.2.
"CLOSING" AND "CLOSING DATE" shall be on or before July 31, 1997, or as
promptly as possible after Regulatory Approval is received, but in no event
later than September 30, 1997.
"CODE" means the Internal Revenue Code of 1986 and any amendments,
predecessor laws or successor laws, and all applicable interpretive authority
(including, but not limited to, regulations and revenue rulings).
"CONTRACT" means any agreement, lease, evidence of indebtedness,
mortgage, indenture, security agreement or other contract (whether written or
oral) to which Summit or FirstFederal is a party or bound other than as a
creditor in the ordinary course of business.
"DISCLOSURE SCHEDULE" means the record delivered to FirstFederal by
Summit and to Summit by FirstFederal herewith and dated as of the date hereof,
containing all lists, descriptions, exceptions and other information and
materials as are required to be included therein by Summit and FirstFederal
respectively pursuant to this Merger Agreement.
"EXCHANGE ACT" has the meaning set out in Section 5.1.13(i)(A).
"ERISA" has the meaning set out in Section 3.14(a).
"EFFECTIVE TIME" has the meaning set out in Section 2.2.
"EMPLOYEE BENEFIT PLANS" has the meaning set out in Section 3.14(a).
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"EMPLOYMENT AGREEMENTS" means the agreements by and between Summit Bank
and David C. Vernon, and FirstFederal Financial and Jon W. Park in the form set
forth in Exhibits A-1 and A-2.
"ENVIRONMENTAL LAW" means any law relating to human health, safety, or
protection of the environment or to omissions, discharges, releases, or
threatened releases of pollutants, contaminants, or hazardous substances in the
environment (including, without limitation, ambient air, surface water, ground
water, land surface, or subsurface strata) or otherwise relating to the
treatment, storage, disposal, transport, or handling of any hazardous substance.
"EXCHANGE RATIO" has the meaning set out in Section 2.5.
"FINANCIAL STATEMENTS" means the FirstFederal Financial Statements
and/or the Summit Financial Statements, as the case may be.
"FIRSTFEDERAL" means collectively FirstFederal Financial Services Corp
and each Subsidiary thereof, except in Articles II and XI, FirstFederal means
solely FirstFederal Financial Services Corp.
"FIRSTFEDERAL COMMON STOCK" means $1.00 par value common stock of
FirstFederal Financial Services Corp, of which 4,052,757 shares are issued and
outstanding as of September 30, 1996.
"FIRSTFEDERAL ENTITY" has the meaning set out in Section
5.1.13(i)(A).
"FIRSTFEDERAL FINANCIAL" means FirstFederal Financial Services Corp.
"FIRSTFEDERAL FINANCIAL STATEMENTS" means the consolidated balance
sheets of FirstFederal as of December 31, 1993, 1994, and 1995, and the related
consolidated statements of income, shareholders' equity and cash flows for the
years ending on those dates as audited by Deloitte & Touche, LLP, the
independent, certified public accountant for FirstFederal, including the reports
and letters of such accountant with respect to the Financial Statements.
Financial Statements also means the unaudited balance sheet as of September 30,
1996, and related statements of income, shareholders' equity and cash flows for
the period ending on such date. Said Statements are set out in Section 4.8 of
the Disclosure Schedule.
"FIRSTFEDERAL SHARE PRICE CHANGE" means a fraction expressed as a
percentage, the numerator of which is the difference between the average closing
Sales Price of FirstFederal Common Stock as recorded on Nasdaq for the 5
consecutive Trading Days ending on the Trading Day prior to the Trading Day this
Merger Agreement is executed by all parties and the average closing Sales Price
of FirstFederal Common Stock as recorded on Nasdaq for the 5 consecutive Trading
Days ending with the third Trading Day prior to the Closing Date and the
denominator of which is the average closing Sales Price of FirstFederal Common
Stock as recorded on Nasdaq for the 5 consecutive Trading Days ending on the
Trading Day prior to the Trading Day this Merger Agreement is executed by all
parties.
"GAAP" means American Institute of Certified Public Accountants'
generally accepted accounting principles, consistently applied.
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"INTELLECTUAL PROPERTY" means all patents and patent rights, trademarks
and trademark rights, trade names and trade name rights, service marks and
service mark rights, service names and service name rights, brand names,
inventions, processes, formulae, copyrights and copyright rights, trade dress,
business and product names, logos, slogans, trade secrets, processes, designs,
methodologies, computer programs (including all source codes) and related
documentation, and all pending applications for and registrations of patents,
trademarks, service marks and copyrights licensed or owned by Summit.
"LIABILITIES" means all indebtedness, obligations, guarantees, and
other liabilities (whether absolute, accrued, contingent, fixed or otherwise,
liquidated or unliquidated, or whether due or to become due).
"LICENSES" means all licenses, permits, charters, trade association
memberships, certificates of authority, authorizations, approvals,
registrations, franchises and similar consents.
"LIEN" means any mortgage, pledge assessment, security interest, lease,
lien, adverse claim, levy, charge or other encumbrance of any kind, or any
conditional sale contract, title retention contract or other contract to convey
any of the foregoing.
"MATERIAL ADVERSE EFFECT" means with respect to FirstFederal or Summit,
as the case may be, a material adverse effect on the business, results of
operations, or financial condition of such party and its Subsidiaries taken as a
whole.
"MATERIAL ADVERSE IMPACT OF FIRSTFEDERAL" means a material
misrepresentation or breach of warranty by FirstFederal or any other matter not
adequately disclosed on the Disclosure Schedule by FirstFederal which, in the
aggregate, would have potential pre-tax liability to FirstFederal in excess of
$4,000,000 (excluding therefrom change in financial position resulting from
general market fluctuations in the value of FirstFederal's investment securities
and loans).
"MATERIAL ADVERSE IMPACT OF SUMMIT" means a material misrepresentation
or breach of warranty by Summit or any other matter not adequately disclosed on
the Disclosure Schedule by Summit which, in the aggregate, would have potential
pre-tax liability to Summit in excess of $350,000 (excluding therefrom change in
financial position resulting from general market fluctuations in the value of
Summit's investment securities and loans).
"MATERIAL CONTRACT" means any Contract that involves the payment or
potential payment, pursuant to the terms of any such contract, by or to Summit
of more than $25,000.00 or any Contract that cannot be terminated within 360
calendar days after giving notice of termination without resulting in any
material cost or penalty to Summit.
"MCDONALD" has the meaning set out in Section 3.23.
"MERGER" has the meaning set out in Section 2.1.
"MERGER AGREEMENT" means this Agreement of Affiliation and Plan of
Merger, Exhibits and Schedules hereto and all certificates and documents
delivered in accordance herewith.
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"NASD" has the meaning set out in Section 5.2.1.
"NASDAQ" means the Nasdaq National Market System.
"OGCL" has the meaning set out in Section 2.1.
"ORDER" means any writ, judgment, decree, injunction or similar order
of any governmental or regulatory authority (in each such case whether
preliminary or final).
"PBGC" has the meaning set out in Section 3.14(b).
"PERSON" means any natural person, corporation, general partnership,
trust, proprietorship, limited liability company or other business organization.
"REAL PROPERTY" means all interests in real estate wherever located and
owned or leased.
"REGISTRATION STATEMENT" means the original filing and subsequent
amendments under Form S-4 with the Securities and Exchange Commission (SEC)
pursuant to the Securities Act of 1933 referred to in Articles V and VI.
"REGULATORY APPROVAL" means the approval of this Merger Agreement by
the appropriate agencies, commissions, and other instrumentalities of the United
States and State of Ohio.
"SALES PRICE" means the average of the closing bid and ask price of
FirstFederal Common Stock, as reported on Nasdaq.
"SEC" means the Securities and Exchange Commission.
"SNL INDEX" means the value as of a given date of the SNL Securities
National Bank and Thrift Index as reported by SNL Securities, which represents a
market value weighted average of the companies composing such index.
"SNL INDEX PRICE CHANGE" means a fraction expressed as a percentage the
numerator of which is the difference between the average closing value of the
SNL Index for the 5 consecutive Trading Days ending on the Trading Day prior to
the Trading Day this Merger Agreement is executed by all parties and the average
closing value of the SNL Index ending on the Trading Day the third Trading Day
prior to the Closing Date and the denominator of which is the average closing
value of the SNL Index for the 5 consecutive Trading Days ending on the Trading
Day prior to the Trading Day this Merger Agreement is executed by all parties.
"STOCK APPRECIATION RIGHTS" means any stock appreciation rights granted
under the Stock Option Plan.
"STOCK OPTION" means any stock option granted under the Stock Option
Plan.
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"STOCK OPTION PLAN" means Summit Bancorp 1989 Stock Incentive Plan and
certain stock option agreements with Summit Bancorp's directors as more fully
disclosed on Section 3.18(a)(i) of the Disclosure Schedule.
"SUBSIDIARY" means any corporation or other entity in which Summit or
FirstFederal, as the case may be, directly or indirectly through Subsidiaries or
otherwise, beneficially owns any equity interests in, or the voting control of,
such corporation or other entity.
"SUMMIT" means collectively Summit Bancorp and each Subsidiary thereof,
except in Articles II and XI, Summit means solely Summit Bancorp.
"SUMMIT ARTICLES" has the meaning set out in Section 3.1(b).
"SUMMIT COMMON STOCK" means the common stock without par value of
Summit Bancorp, of which 234,916 shares are issued and outstanding as of the
date hereof.
"SUMMIT FINANCIAL STATEMENTS" means the consolidated balance sheets of
Summit as of December 31, 1993, 1994, and 1995, and the related consolidated
statements of income, shareholders' equity and cash flows for the years ending
on those dates as audited by Crowe, Chizek and Company, the independent,
certified public accountant for Summit, including the reports and letters of
such accountant with respect to the Financial Statements. Financial Statements
also means the unaudited balance sheet as of September 30, 1996, and related
statements of income, shareholder's equity and cash flows for the period ending
on such date. Said Statements are set out in Section 3.8 of the Disclosure
Schedule.
"SUMMIT REGULATIONS" has the meaning set out in Section 3.1(b).
"SURVIVING CORPORATION" has the meaning set out in Section 2.1.
"THRIFT SUBSIDIARY" means First Federal Savings and Loan Association of
Wooster, a federally chartered savings and loan association.
"TRADING DAY" means a day stock is exchanged on Nasdaq.
"TRANSFER AGENT" means Chemical Mellon Shareholder Services, LLC.
"VERNON" has the meaning set out in Section 5.1.15.
1.2 ACCOUNTING TERMS. All accounting terms used herein and not
expressly defined herein shall have the meanings given to them under GAAP. All
financial data supplied pursuant to this Merger Agreement shall be prepared in
accordance with such principles, unless otherwise noted.
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ARTICLE II
----------
MERGER AND CONVERSION OF SHARES
-------------------------------
2.1 THE MERGER. At the Effective Time, upon the terms and subject to
the conditions of this Merger Agreement, Summit shall be merged (the "Merger")
with and into FirstFederal in accordance with the Ohio General Corporation Law
(the "OGCL"). FirstFederal shall be the surviving corporation in the Merger (the
"Surviving Corporation"), and the Surviving Corporation shall be an Ohio
corporation. The Surviving Corporation's name shall be FirstFederal Financial
Services Corp. FirstFederal and Summit are sometimes referred to herein as the
"Constituent Corporations." As a result of the Merger, the outstanding shares of
capital stock of Summit shall be converted or canceled in the manner provided in
Section 2.5.
2.2 EFFECTIVE TIME. As soon as practicable following the Closing, the
Constituent Corporations shall cause a certificate of merger complying with the
requirements of Section 1701.81 of the OGCL (the "Certificate of Merger")
attached hereto as Exhibit C to be filed with the Secretary of State of the
State of Ohio. The Merger will become effective at the time and date the
Certificate of Merger is filed with the Secretary of the State of Ohio (the
"Effective Time").
2.3 ARTICLES OF INCORPORATION AND REGULATIONS. The amended Articles of
Incorporation and Code of Regulations of FirstFederal effective immediately
before the Effective Time will be the Articles of Incorporation and Regulations
of the Surviving Corporation, until duly amended in accordance with the OGCL and
their respective terms.
2.4 DIRECTORS AND OFFICERS. The directors and officers of FirstFederal
immediately prior to the Effective Time will be the directors and officers,
respectively, of the Surviving Corporation, until their successors have been
duly elected or appointed and qualified or until their earlier death,
resignation or removal in accordance with the terms of FirstFederal's amended
Articles of Incorporation and Code of Regulations and the OGCL. As provided in
Section 7.6, the Board of Directors of FirstFederal will appoint to the
FirstFederal Board of Directors, at the Effective Time, David C. Vernon.
2.5 CONVERSION AND EXCHANGE OF CAPITAL STOCK.
(a) At the Effective Time, by virtue of the Merger and without
any action on the part of the holder thereof, each then outstanding
share of common stock, no par value, of Summit Common Stock will, by
virtue of the Merger, automatically be canceled and extinguished in
consideration and exchange for the right to receive 1.87 shares
("Exchange Ratio") of FirstFederal Common Stock.
(b) All shares of Summit Common Stock that are owned by Summit
as treasury stock and any shares of Summit Common Stock owned by
FirstFederal shall be canceled and retired and shall cease to exist and
no consideration whatsoever shall be delivered in exchange therefor in
connection with the Merger.
(c) Each outstanding share of FirstFederal Common Stock prior
to the Effective Time shall continue to be an issued and outstanding
common share $1.00 par value of the
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Surviving Corporation and each share of FirstFederal Common Stock held
in treasury prior to the Effective Time shall continue to be held in
treasury by the Surviving Corporation.
(d) If, between the date of this Merger Agreement and the
Effective Time, the shares of FirstFederal Common Stock shall be
changed into a different number of shares by reason of any
reclassification, recapitalization, split-up combination, or exchange
of shares, or by stock dividend or stock split thereon, declared with a
record date within said period, the applicable adjustment or
adjustments shall be made to the Exchange Ratio established by Section
2.5(a) and to the definition of "Sales Price."
(e) On and after the Effective Time, each holder of a
certificate or certificates theretofore representing outstanding shares
of Summit Common Stock (any such certificate being hereinafter referred
to as a "Certificate") may surrender the same to the Transfer Agent for
cancellation and each such holder shall be entitled upon such surrender
to receive in exchange therefor certificate(s) representing the number
of shares of FirstFederal Common Stock to which such holder is entitled
as provided herein and a check in an amount equal to the amount of cash
to be paid pursuant to subsection (f) of Section 2.5, without interest,
to which such holder is entitled. Until so surrendered, each
Certificate shall be deemed for all purposes to evidence ownership of
the number of shares of FirstFederal Common Stock into which the shares
represented by such Certificates have been changed or converted as
aforesaid. No dividends or other distributions declared after the
Effective Time with respect to FirstFederal Common Stock shall be paid
to the holder of any unsurrendered Certificate until the holder thereof
shall surrender such Certificate in accordance with this Section 2.5.
After the surrender of a Certificate in accordance with this Section
2.5, the record holder thereof shall be entitled to receive any such
dividends or other distributions, without any interest thereon, which
theretofore had become payable with respect to shares of FirstFederal
Common Stock represented by such Certificate. Holders of unsurrendered
Certificates shall be entitled to vote after the Effective Time, at any
meeting of FirstFederal shareholders, the number of whole shares of
FirstFederal Common Stock represented by such Certificates, regardless
of whether such holders have exchanged their Certificates; provided
that no holder of unsurrendered Certificates may vote at any meeting of
FirstFederal shareholders that is held more than 30 days after the
Effective Time. Certificates surrendered for exchange by any person
who is an "affiliate" of Summit for purposes of Rule 145(c) under the
Securities Act of 1933, as amended, shall not be exchanged for
certificates representing shares of FirstFederal Common Stock until
FirstFederal has received the written agreement of such person
contemplated by Section 5.19. If any certificate for shares of Summit
Common Stock is to be issued in a name other than that in which a
certificate surrendered for exchange is issued, the certificate so
surrendered shall be properly endorsed and otherwise in proper form
for transfer.
Upon the Effective Time, the stock transfer books of Summit
shall be closed and no transfer of Summit Common Stock shall thereafter
be made or recognized. Any other provision of this Merger Agreement
notwithstanding, neither FirstFederal or the Transfer Agent nor any
party to this Merger Agreement shall be liable to a holder of Summit
Common Stock for any amount paid or property delivered in good faith to
a public official pursuant to any applicable abandoned property,
escheat or similar law.
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(f) Notwithstanding any other provision hereof, each holder of
shares of Summit Common Stock who would otherwise have been entitled to
receive a fraction of a share of FirstFederal Common Stock (after
taking into account all Certificates delivered by such holder) shall
receive, in lieu thereof, cash in an amount equal to such fractional
part of a share of FirstFederal Common Stock valued as follows: the
average closing Sales Price as recorded on Nasdaq for the five
consecutive Trading Days ending with the third Trading Day prior to the
Closing Date. No such holder shall be entitled to dividends, voting
rights or any other shareholder right in respect of any fractional
share.
(g) To the extent provided by the OGCL, any holder of record
of Summit Common Stock as of the date fixed for the determination of
stockholders of Summit entitled to notice of the shareholders' meeting
called for the purposes of approving this Merger Agreement, and who
shall have filed with Summit, not later than ten (10) days after the
date on which the vote on such proposal was taken at such meeting, a
written demand for payment of the fair cash value of such shares in
compliance with Section 1701.85 of the OGCL, and whose shares shall not
have been voted in favor of the Merger or adoption of this Merger
Agreement, shall cease at the Effective Time to have any of the rights
of a stockholder in respect of such shares and shall only have the
right to be paid the fair cash value of such shares under Sections
1701.84 and 1701.85 of the OGCL. Any former holder of Summit Common
Stock who after the Effective Time (i) surrenders his certificates
representing shares of Summit Common Stock for exchange pursuant to
Section 2.5 hereof, or (ii) validly withdraws his written demand for
payment of fair cash value of such shares pursuant to Sections 1701.84
and 1702.85 of the OGCL, will thereupon be entitled to receive
FirstFederal Common Stock as of the Effective Time pursuant to this
Agreement.
2.6 STOCK OPTIONS. Stock Options outstanding immediately prior to the
Effective Time entitling the holders thereof to purchase shares of Summit Common
Stock will remain unchanged and will remain outstanding when the Merger becomes
effective, except that upon the Effective Time, (i) the holders thereof shall
become entitled to purchase the number of shares of FirstFederal Common Stock
(rounded up to the nearest whole share) to which such holders would have been
entitled to receive pursuant to Section 2.5(a) if immediately preceding the
Effective Time, such securities were converted into such number of shares of
Summit Common Stock to which the holders would be entitled under the terms of
the governing documents for such securities, disregarding for purposes of this
Section any limitations on exercise or vesting thereof; and (ii) the exercise
price of each respective Stock Option shall be divided by the Exchange Ratio.
2.7 STOCK APPRECIATION RIGHTS. Stock Appreciation Rights outstanding
immediately prior to the Effective Time entitling the holders thereof to receive
payment of an amount determined pursuant to the Stock Option Plan will remain
unchanged and will remain outstanding when the Merger becomes effective except
that upon the Effective Time: (i) the holders thereof shall become entitled to
Stock Appreciation Rights based upon FirstFederal Common Stock equal in number
to the product of the Stock Appreciation Rights for Summit Common Stock granted
immediately preceding the Effective Time times the Exchange Ratio rounded up to
the nearest whole share, disregarding for purposes of this Section any
limitations on exercise or vesting thereof; and (ii) the price fixed by the
Committee pursuant to the Stock Option Plan for each respective Stock
Appreciation Right shall be divided by the Exchange Ratio.
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ARTICLE III
-----------
REPRESENTATIONS AND WARRANTIES OF SUMMIT BANCORP
------------------------------------------------
REPRESENTATIONS AND WARRANTIES. In order to induce FirstFederal
Financial to enter into this Merger Agreement and to consummate the transactions
contemplated hereunder, Summit Bancorp makes the following representations,
warranties, covenants and agreements:
3.1 ORGANIZATION OF SUMMIT.
(a) Summit Bancorp is a corporation duly organized, validly
existing and in good standing under the laws of the State of Ohio, and
has all necessary corporate power and authority to conduct its business
as and to the extent now conducted and to own, use and lease its
Assets. Section 3.1 of the Disclosure Schedule lists all states in
which Summit is engaged in business, or owns, uses, or leases Assets.
Summit is qualified to do business and is in good standing in those
jurisdictions specified in Section 3.1 of the Disclosure Schedule,
which are the only jurisdictions in which such qualification is legally
required, except where the failure to be so qualified or in good
standing (considering all such failures together) does not and will not
have a Material Adverse Effect upon the Business or Condition of
Summit.
(b) The copies of Summit Bancorp's Third Amended and Restated
Articles of Incorporation as amended to date, certified by the
Secretary of State of Ohio ("Summit Articles"), and the Amended and
Restated Code of Regulations as amended to date, certified by Summit
Bancorp's Secretary ("Summit Regulations"), all of which have been
heretofore delivered to FirstFederal, are and at Closing will be
complete and correct. Further, the minute books and stock record books
of Summit are accurate and complete. Such minute books and stock
record books will be available for inspection at any reasonable time
by FirstFederal's duly authorized representatives, and copies of any
minutes of any meeting held or documents otherwise constituting
corporate action by Summit after the date of such inspection will be
furnished to FirstFederal promptly and in no event later than Closing.
3.2 AUTHORITY AND APPROVAL.
(a) Summit Bancorp has all requisite corporate power and
authority to enter into and perform all of its obligations under this
Merger Agreement. The execution and delivery of this Merger Agreement
and the consummation of the transactions contemplated hereby have been
duly and validly authorized by all necessary corporate action in
respect thereof on the part of Summit Bancorp.
(b) The consummation of the transactions contemplated hereby
and the compliance by Summit with the terms of this Merger Agreement do
not and will not conflict with, result in, or constitute any of the
following:
(i) A breach of any term or provision of this Merger
Agreement;
(ii) Except for the matters set out on Section 3.2 of
the Disclosure Schedule, a default or an event that, with
notice or lapse of time, or both, would be
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a default, breach or violation of the Summit Articles or Summit
Regulations or any Contract, License, commitment, or other agreement,
instrument, or arrangement to which Summit is a party or by which
Summit or its Assets are bound;
(iii) Except as to matters set out on Section 3.2 of the
Disclosure Schedule, an event that would permit any party to terminate
any agreement with Summit or to accelerate the maturity of any
obligation of Summit; or
(iv) The creation or imposition of any Lien on any of its Assets.
3.3 CAPITAL STOCK. The authorized capital stock of Summit Bancorp
consists of:
(a) 3,000,000 shares of common stock, of which 234,916 shares are
issued and outstanding; and 21,274 shares are held in treasury.
(b) 300,000 shares of Serial Preferred Stock without par value,
none of which is issued and outstanding.
All issued and outstanding shares of Summit Common Stock are validly
issued, fully paid and nonassessable and were not issued in violation of any
preemptive right of any stockholder of Summit Bancorp. All of the issued and
outstanding shares of Summit Common Stock will be entitled to vote to approve
this Merger Agreement. As of the date hereof, no shares of Summit Common Stock
were reserved for issuance except that 25,000 shares were reserved for issuance
upon the exercise of options granted heretofore pursuant to the Stock Option
Plan. Options have been granted with respect to 23,150 shares, all of which are
presently held by the employees, officers, and directors of Bank Subsidiary.
There are no other outstanding subscriptions, options, rights, warrants,
convertible securities, or other agreements or commitments obligating Summit to
issue (or to transfer from treasury) any additional shares of its capital stock
of any class.
Summit has taken all action necessary so that the execution of this
Merger Agreement and the consummation of the transactions contemplated hereby do
not and will not result in the grant of any rights to any person under any
agreements or enable rights to any capital stock of Summit to be exercised,
distributed, or triggered, except as otherwise provided in this Merger
Agreement.
3.4 SEC DOCUMENTS/REGULATORY FILINGS. Summit Bancorp has filed all SEC
documents required by the security laws and such SEC documents complied as of
their respective dates of filing in all material respects with security laws.
Summit has filed all reports required by statute or regulation to be filed with
any federal or state banking regulatory agency except where the failure to so
file would not have a Material Adverse Effect on Summit, and such reports were
prepared in accordance with the applicable statutes, regulations, and
instructions in existence as of the date of filing of such reports in all
material respects.
3.5 SUBSIDIARIES.
(a) Summit does not own, directly or indirectly, 5% or more of
the outstanding capital stock or other voting securities of any
corporation, bank, or other organization, except
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as disclosed on Section 3.5 of the Disclosure Schedule. The outstanding
shares of capital stock of each Subsidiary are validly issued and
outstanding, fully paid and nonassessable, and all such shares are
directly owned by Summit, free and clear of all liens, claims, and
encumbrances. No Subsidiary has any outstanding securities of any kind,
nor any outstanding options, warrants, or other rights entitling another
person to acquire any securities of a Subsidiary of any kind other than
the shares of capital stock owned by Summit.
(b) Each Subsidiary is a duly organized corporation or banking
association validly existing and in good standing under applicable laws.
Each Subsidiary (i) has all requisite corporate power and authority to
carry on its business as now conducted; and (ii) is duly licensed or
qualified to do business in the states of the United States where its
ownership or leasing of property or the conduct of its business requires
such licensing or qualification and where failure to be so licensed or
qualified would have a Material Adverse Effect on Summit. Each
Subsidiary has all federal, state, and local governmental authorizations
necessary for it to own or lease its properties or assets and to carry
on its business as is now being conducted, except where the failure to
be so authorized would not have a Material Adverse Effect on Summit.
3.6 AFFILIATE TRANSACTIONS. Except as disclosed in Section 3.6 of the
Disclosure Schedule, as of the date of this Merger Agreement:
(i) There are no Liabilities between Summit, on the
one hand, and the officers and directors of Summit, on the
other hand;
(ii) No executive officer, director, or Affiliate of
a director or executive officer provides, provided, or caused
or causes to be provided any Assets, services, or facilities
to Summit or otherwise does business with Summit.
3.7 BOOKS AND RECORDS. The Books and Records of Summit fairly reflect
in all material respects the transactions to which it is a party and by which
its properties are subject or bound. Such Books and Records have been properly
kept and maintained in compliance in all material respects with GAAP and all
applicable legal requirements.
3.8 FINANCIAL STATEMENTS. The Summit Financial Statements, all
previously provided to FirstFederal, fairly present the consolidated financial
position of Summit Bancorp and its consolidated Subsidiaries as of the date
indicated, and the consolidated results of operations, changes in shareholders'
equity and cash flows of Summit Bancorp and its consolidated Subsidiaries for
the period then ended in conformity with GAAP. There are no material Liabilities
of Summit required to be disclosed in Summit's Financial Statements other than
the Liabilities disclosed in such Financial Statements (including footnotes).
All monetary Liabilities and material non-monetary Liabilities incurred after
the date of the Financial Statements were incurred in the ordinary course of
business consistent with past practices and in the aggregate are not material to
Summit's business. Except for those Subsidiaries listed in Section 3.8 of the
Disclosure Schedule, the statements of financial condition and results of
operations of each Subsidiary are, and for all periods referred to in this
Section 3.8 have been, consolidated with those of Summit Bancorp.
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3.9 ABSENCE OF CHANGES. Since September 30, 1996: (i) there has not
been any material adverse change, or any event or development which,
individually or together with other such events, could reasonably be expected to
result in a material adverse change, in the Business or Condition of Summit;
(ii) neither Summit's chief executive officer nor its chief financial officer is
aware of any events which have occurred since September 30, 1996, or which are
reasonably certain to occur in the future and which reasonably can be expected
to result in any Material Adverse Effect in the Business or Condition of Summit;
and (iii) there have been no material changes in the methods of business
operation of Summit.
3.10 CONSENT. Except as set forth in Section 3.10 of the Disclosure
Schedule, no consent, approval, order or authorization of, or registration,
declaration or filing with, any federal or state governmental authority is
required by or with respect to Summit in connection with the execution and
delivery of this Merger Agreement or the consummation of the transactions
contemplated hereby.
3.11 TAXES.
(a) FILING OF TAX RETURNS. Except where properly extended,
within the times and in the manner prescribed by law, Summit has filed
all federal, state, and local tax returns required by law. Except as
disclosed in Section 3.11 of the Disclosure Schedule, the federal
income tax returns of Summit have not been audited or investigated by
the Internal Revenue Service for the preceding five years. Except as
reflected on Section 3.11 of the Disclosure Schedule, there are no
present disputes as to taxes payable by Summit. In addition, all tax
returns and reports required by applicable law or governmental
regulations have been filed by Summit, and such returns and reports are
(and as to such returns and reports not filed as of the date hereof,
will be) true, correct, and complete in all material respects and
present, fairly and accurately, the information required to be shown
therein. There are no tax deficiencies assessed against Summit that
would have a Material Adverse Effect on Summit, and there are no tax
deficiencies proposed or threatened, and no audit of Summit by any
federal, state or local authority is in progress, and Summit has not
received notice regarding any audit.
(b) PAYMENT OF TAXES. Except as disclosed in Section 3.11(b)
of the Disclosure Schedule, Summit has, within the time and in the
manner prescribed by law, paid in full (and until the Closing Date will
pay within the time and in the manner prescribed by law) payroll taxes
(including, but not limited to, Social Security taxes), franchise
taxes, sales and use taxes, personal property taxes, real estate taxes
and assessments, and local, state and federal income taxes. In
addition, Summit will pay or make timely provision for payment of all
such taxes thereafter payable by Summit so that no lien for any such
taxes will be placed (or attempted) upon any of the Assets, on or
following the Closing Date.
(c) TAX RESERVES. Except as disclosed in Section 3.11(c) of
the Disclosure Schedule, the amounts established as accruals for taxes
on the Financial Statements and on the Books and Records of Summit are
reasonably expected to be sufficient for the payment of all taxes of
any kind, whether disputed or not, and whether accrued, due, absolute,
contingent or otherwise, which were or which may be payable by Summit
for any periods or fiscal years prior to or including the Closing Date,
including all taxes imposed before or after
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the Closing Date which are attributable to any such period or fiscal
year. No differences exist between the amounts of the book basis and
the tax basis of Assets (net of Liabilities) that are not accounted
for by an accrual on the books for federal income tax purposes.
(d) EXTENSIONS AND WAIVERS. Except as disclosed in Section
3.11(d) of the Disclosure Schedule, Summit has not requested any
extension of time within which to file any tax return, which tax return
has not since been filed, nor has Summit executed any outstanding
waivers or comparable consents regarding the application of the statute
of limitations with respect to any taxes or tax returns.
3.12 LITIGATION. Except as disclosed in Section 3.12 of the
Disclosure Schedule:
(a) There is no pending or threatened litigation involving
Summit as defendant or plaintiff. There is no suit, action,
arbitration, or legal, administrative, or other proceeding, or
governmental investigation pending or threatened, against or affecting
Summit, or its business or Assets. The matters set forth in Section
3.12 of the Disclosure Schedule, if decided adversely to Summit, will
not result in a Material Adverse Effect on Summit. Summit is not in
default with respect to any Order of any federal, state, local or
foreign court, department, agency, or instrumentality.
(b) There are no facts or circumstances known to Summit that
could reasonably be expected to give rise to any claim that would be
required to be disclosed pursuant to clause (a) above.
3.13 COMPLIANCE WITH LAWS. Summit has complied with and is not in
violation of, applicable federal, state, or local statutes, laws and regulations
(including, without limitation, any applicable building, zoning, or other law,
ordinance, or regulation) affecting its properties or the operation of its
business, including without limitation the Real Estate Settlement Procedures
Act, Fair Debt Collection Practices Act, Fair Credit Reporting Act, Equal Credit
Opportunity Act, Truth in Lending Act, Occupational Safety and Health Act of
1970, the Fair Labor Standards Act of 1938, Title VII of the Civil Rights Act of
1964, the Rehabilitation Act of 1973, Federal Age Discrimination in Employment
Act of 1967, Consolidated Omnibus Budget Reconciliation Act of 1985, the Workers
Adjustment and Retraining Notification Act of 1988, Civil Rights Act of 1991,
Americans with Disabilities Act of 1991, the Family and Medical Leave Act of
1993, as all such have been amended, except which individually or in the
aggregate do not and insofar as reasonably can be foreseen, in the future will
not have a Material Adverse Effect on Summit. Except as disclosed in Section
3.13 of the Disclosure Schedule, no investigation or review by any governmental
entity with respect to Summit outside the ordinary course of business and not
generally applicable to entities engaged in the same business is pending or, to
the knowledge of Summit, threatened, nor has any governmental entity indicated
an intention to conduct the same in each case other than those, the outcome of
which will not have a Material Adverse Effect on Summit. Further, neither Summit
nor any employee, officer, or director has knowingly engaged in any activity or
knowingly omitted to take any action which, in any material way, has resulted or
reasonably could be expected to result in the violation of (i) any local, state
or federal law (including without limitation the Bank Secrecy Act, the Community
Reinvestment Act, applicable consumer protection and disclosure laws and
regulations, including without limitation, Truth in Lending, Truth in Savings
and similar disclosure laws and regulations,
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and equal employment and employment discrimination laws and regulations) or (ii)
any regulation, order, injunction or decree of any court or governmental body,
the violation of either of which could reasonably be expected to have a Material
Adverse Effect on Summit.
3.14 BENEFIT PLANS.
(a) Section 3.14 of the Disclosure Schedule contains a true
and complete list of all employee benefit plans within the meaning of
Section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA") ("Employee Benefit Plans"), whether or not any such
Employee Benefit Plans are otherwise exempt from the provisions of
ERISA, established, maintained or contributed to or obligated to form
a fund by Summit (Summit shall include, for purposes of this Section
3.14 only, all employers, whether or not incorporated, which by reason
of common control are treated together with Summit as a single employer
within the meaning of Code Section 414(b) and (c) since September 2,
1974.)
(b) Summit does not maintain or contribute to any such
employee benefit plan subject to ERISA which is not in substantial
compliance with ERISA, or which has incurred any accumulated funding
deficiency within the meaning of Section 412 or 418B of ERISA, or which
has applied for or obtained a waiver from the Internal Revenue Service
of any minimum funding requirement under Section 412 of the Code.
Summit has not incurred any liability to the Pension Benefit Guaranty
Corporation ("PBGC") in connection with any employee benefit plan
covering any employees of Summit or ceased operations at any facility
or withdrawn from such plan in a manner which could subject it to
liability under Section 4062(e), 4063 or 4064 of ERISA, and knows of no
facts or circumstances which might give rise to any liability of Summit
to the PBGC under Title IV of ERISA. Summit has not incurred any
withdrawal liability within the meaning of Sections 4201 and 4204 of
ERISA, to any employee benefit plan which is a multiemployer plan (as
defined in Section 4001 of ERISA), and no event has occurred, and there
exists no condition or set of circumstances, which presents a material
risk of the occurrence of any withdrawal from or the partition,
termination, reorganization or insolvency of any multiemployer plan
which could result in any liability to Summit.
(c) Full payment has been made of all amounts which Summit is
required for any reason to have paid as contributions to any Employee
Benefit Plan as of the last day of the most recent fiscal year of such
Employee Benefit Plan ended prior to the final Closing Date. Summit has
made adequate provision for reserves to meet contributions that have
not been made because they are not yet due under the terms of any
Employee Benefit Plan or related agreements. Benefits under all
Employee Benefit Plans are as represented and have not been increased
subsequent to the date as of which documents have been provided.
(d) Each Employee Benefit Plan intended to be qualified under
Section 401(a) of the Code has been determined to be so qualified by
the Internal Revenue Service and nothing has occurred since the
effective date of the last such determination which resulted in or is
likely to result in the revocation of such determination.
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(e) No reportable event (as defined in Section 4043 of ERISA)
has occurred with respect to any Employee Benefit Plan and Summit has
not engaged in any transaction with respect to the Employee Benefit
Plans which would subject Summit to a tax, penalty or liability for
prohibited transactions under ERISA or the Code nor have any of
Summit's directors, officers, or employees to the extent they or any of
them are fiduciaries with respect to such plans, breached any of their
responsibilities or obligations under Title I of ERISA.
(f) Summit has furnished FirstFederal with true and complete
copies of: (i) all Employee Benefit Plans as in effect, together with
all amendments thereto which will become effective at a later date;
(ii) the most recent Internal Revenue Service determination letter
issued with respect to each Employee Benefit Plan; and (iii) Form 5500
for the most recent completed fiscal year for each Employee Benefit
Plan required to file such form.
(g) There are no material actions, suits or claims pending or
threatened, against the Assets of any Employee Benefit Plan.
(h) The plans are qualified under Code Section 401 and the
associated trust funds are exempt from tax under Code Section 501.
(i) Each Employee Benefit Plan which Summit maintains has at
all times been administered in material compliance with all applicable
requirements of ERISA, including all reporting requirements, with
respect to the Internal Revenue Service, the Department of Labor and
the Pension Benefit Guaranty Corporation and including all disclosure
requirements with respect to plan participants and beneficiaries.
(j) Summit does not maintain nor is it under any obligation or
duty to establish any type of post retirement benefit, medical, or life
insurance plan for its employees.
3.15 REAL PROPERTY. In addition to the representations and warranties
contained in Section 3.16, Summit hereby makes the following additional
representations, warranties and covenants to and with FirstFederal regarding the
Real Property owned or leased by Summit as listed on Section 3.15 of the
Disclosure Schedule:
(a) Section 3.15(a) of the Disclosure Schedule contains a true
and correct list of (i) each parcel of Real Property owned by Summit,
(ii) each parcel of Real Property leased by Summit (as lessor or
lessee), and (iii) all Liens relating to or affecting any parcel of
Real Property owned by Summit, and except as listed in Section 3.15(a)
of the Disclosure Schedule, such Real Property owned by Summit is free
and clear of all Liens, encumbrances, security interests, pledges,
equities, claims of others or restrictions whatsoever, except:
(i) Zoning and building ordinances and regulations
which do not prohibit or restrict the present use of the Real
Property;
(ii) Real estate taxes and assessments, both general
and special, which may be a Lien but are not yet due and
payable as of the Closing Date;
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(iii) Easements, covenants, agreements, encumbrances,
conditions, reservations, restrictions of record or other
exceptions affecting the real estate, if any, which are
disclosed to FirstFederal and approved in writing by
FirstFederal prior to the Closing Date.
Summit has adequate rights of ingress and egress with respect to such
Real Property, buildings, structures, facilities, fixtures and other
improvements. Summit has not received any notice nor has knowledge that
the Real Property, as currently used by Summit, is in violation of any
applicable federal, state or local statute, ordinance, order,
requirement, law, rule or regulation (including without limitation,
building, zoning or Environmental Laws) affecting the Real Property, or
that would have a Material Adverse Effect on the value of the Real
Property or its continued operation and use in the ordinary course of
business.
(b) The zoning of the Real Property permits the presently
existing improvements and the conduct and continuation of the business
presently being conducted on such Real Property.
(c) Summit has a valid and subsisting leasehold estate in and
the right to quiet enjoyment of the Real Property leased by it for the
full term of the lease thereof. Each lease is a legal, valid and
binding agreement, enforceable in accordance with its terms, of Summit
and of each other person that is a party thereto, and except as set
forth in Section 3.15(c) of the Disclosure Schedule, there is no, and
Summit has not received notice of any default (or any condition or
event which, after notice or lapse of time or both, would constitute a
default) thereunder. None of the leases will terminate or lapse by
reason of the transactions contemplated by this Merger Agreement.
(d) Except as disclosed in Section 3.15(d) of the Disclosure
Schedule, the improvements on the Real Property are structurally sound
and in good operating condition and in a state of good maintenance and
repair, are adequate and suitable for the purposes for which they are
presently being used and, to the knowledge of Summit, there are no
condemnation or appropriation proceedings pending or threatened against
any of such Real Property or the improvements thereon.
3.16 ASSETS. With respect to the Assets:
(a) Except as listed on Section 3.16(a) of the Disclosure
Schedule, Summit has not received any notice nor does it have any
knowledge of any information that there has been any violation of any
statute, law, ordinance, or regulation of any governmental entity
affecting its Assets with respect to health, safety and environmental
and pollution control, including the disposition of hazardous or toxic
waste materials or emissions into the air, soil or water, or any form
of contamination that would have a Material Adverse Effect on the value
of the Assets or the continued use of the Assets by Summit in the
ordinary course of business.
(b) Except as provided in Section 3.16(b) of the Disclosure
Schedule, Summit has good and marketable title to the Assets, free and
clear of all Liens, encumbrances, security interests, pledges,
equities, claims of others or restrictions whatsoever.
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(c) All equipment owned by Summit and used in its business is
now in good working condition and, as of the Closing Date, will be in
good working condition with no material defects other than those items
identified to FirstFederal in Section 3.16(c) of the Disclosure
Schedule, and except as disclosed in Section 3.16(c) of the Disclosure
Schedule, no expenditures in excess of $10,000.00 are planned for the
routine, normal maintenance of such equipment. Except as stated in
Section 3.16(c) of the Disclosure Schedule, no personal property used
by Summit in connection with its business is held under any lease,
security agreement, conditional sales contract, or other title
retention or security arrangement, or is other than in the possession
and under the control of Summit. The tangible personal property
reflected in those Books and Records constitutes all such tangible
personal property necessary for the conduct by Summit of its business
as now conducted.
3.17 INTELLECTUAL PROPERTY. Except as disclosed in Section 3.17 of the
Disclosure Schedule, Summit owns the entire right, title and interest in and to,
or has valid Licenses with respect to, all of the Intellectual Property
necessary in all material respects to conduct the business and operations of
Summit as presently conducted, except where the failure to do so would not,
individually or in the aggregate, have a Material Adverse Effect on Summit. None
of such Intellectual Property is subject to any outstanding order, decree,
judgment, stipulation, settlement, lien, charge, encumbrance or attachment,
which order, decree, judgment, stipulation, settlement, lien, charge,
encumbrance or attachment would have a Material Adverse Effect on Summit.
3.18 CONTRACTS.
(a) Section 3.18(a) of the Disclosure Schedule (with paragraph
references corresponding to those set forth below) contains a true and
complete list of all material Contracts of Summit including, but not
limited to, the following:
(i) Contracts and other agreements with any current
or former officer, director, shareholder, affiliate, employee,
consultant, or agent;
(ii) Contracts with any person containing any
provision or covenant prohibiting or limiting the ability of
Summit to engage in any business activity or compete with any
person, or prohibiting or limiting the ability of any person
to compete with Summit;
(iii) Contracts relating to the future disposition or
acquisition of any Assets, other than dispositions or
acquisitions in the ordinary course of business consistent
with past practice;
(iv) Contracts under which Summit agrees to
indemnify any person;
(v) Contracts and other agreements relating to the
borrowing of money other than federally insured deposits,
creation of Liens, issuance of letters of credit, or the
guarantee of the payment of Liabilities or performance of
obligations by Summit;
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(vi) powers of attorney;
(vii) other contracts and other agreements made
outside the ordinary course of business; and
(viii) Material Contracts.
(b) Each Contract required to be disclosed in Section 3.18(a)
of the Disclosure Schedule is in full force and effect and constitutes
a legal, valid and binding agreement, enforceable in accordance with
its terms, of each party thereto; and except as disclosed in Section
3.18(b) of the Disclosure Schedule neither Summit, nor, to the
knowledge of Summit, any other party to such Contract, is or has
received notice that it is, in violation or breach of or default under
any such Contract (or with notice or lapse of time or both, would be in
violation or breach of or default under any such Contract). None of the
Contracts disclosed in Section 3.18(a) of the Disclosure Schedule will
terminate or lapse by reason of the transactions contemplated by this
Merger Agreement.
(c) Except as disclosed in Section 3.18(c) of the Disclosure
Schedule, Summit is not a party to or bound by any Contract that has
been or could reasonably be expected to have, individually or in the
aggregate with any other such Contracts, a Material Adverse Effect on
Summit.
(d) Except as disclosed in Section 3.18(d) of the Disclosure
Schedule attached hereto, there are no Contracts, commitments, leases,
permits or other instruments necessary to hold the Assets by Summit, as
and where now held by Summit, or to conduct the business of Summit, as
and where now operated by Summit, or related to the operation or
management of the Assets.
3.19 POOLING OF INTERESTS. As of the date of this Merger Agreement,
Summit knows of no reason relating to it which would reasonably cause it to
believe that the Merger will not qualify as a pooling of interests for financial
accounting purposes.
3.20 RESERVED.
3.21 LICENSES. Section 3.21 of the Disclosure Schedule contains a true
and complete list of all Licenses used in and material to the business or
operations of Summit, setting forth the owner, the function and the expiration
and renewal date of each. Prior to the execution of this Merger Agreement,
Summit has delivered to FirstFederal true and complete copies of all such
Licenses. Except as disclosed in Section 3.21 of the Disclosure Schedule:
(i) Summit owns or validly holds all Licenses that are material to
its business or operations;
(ii) each License listed in Section 3.21 of the Disclosure Schedule
is valid, binding and in full force and effect; and
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(iii) Summit has not received any notice that it is
in default (or with the giving of notice or lapse of time or
both, would be in default) under any such License.
None of the Licenses disclosed in Section 3.21 of the Disclosure Schedule will
terminate or lapse by reason of the transactions contemplated by this Merger
Agreement.
3.22 INSURANCE. Section 3.22 of the Disclosure Schedule lists all of
the insurance policies held by Summit concerning its business and Assets
(including the names and addresses of the insurers, the expiration dates
thereof, the annual premiums and payment terms thereof and a brief description
of the interests insured thereby). All these policies are in the respective
principal amounts set forth in Section 3.22 of the Disclosure Schedule. To the
best of Summit's knowledge, Summit has maintained and now maintains (i)
insurance on all its Assets of a type customarily insured, covering property
damage and loss of income by fire or other casualty including, but not limited
to, occurrence-based general liability insurance, and (ii) adequate insurance
protection against all Liabilities, claims and risks against which it is
customary to insure. To the best of Summit's knowledge after due inquiry, except
as disclosed in Section 3.22 of the Disclosure Schedule, there is no breach or
default with respect to any material provision contained in any policy or binder
described in this provision, and there has not been any failure to give any
notice or present any claim under any such policy or binder in due or timely
fashion. There are no outstanding unpaid premiums, and there are no provisions
for retrospective or retroactive premium adjustments except as set forth in
Section 3.22 of the Disclosure Schedule, and Summit has not received notice of
any cancellations or nonrenewal or disallowance of any claims under any such
policy or binder. Finally, except as disclosed in Section 3.22 of the Disclosure
Schedule, there has not been any instance since the formation of Summit where
there has not been in full force and effect insurance policies providing the
types of insurance as described above. The insurance coverage provided by the
policies described in this section will not terminate or lapse by reason of the
transactions contemplated by this Merger Agreement.
3.23 BROKERS AND FINDERS. Neither Summit nor any of its respective
officers, directors or employees, has employed any broker, finder or financial
advisor or incurred any liability for any fees or commissions in connection with
the transactions contemplated herein, except for Summit Bancorp's retention of
McDonald & Company Securities, Inc. ("McDonald") to perform certain financial
advisory services. The fee associated with McDonald's retention is equal to
1.50% of the "total aggregate fair market value" received as of the Closing of
this Merger as that term is defined in Section 3(F) of the engagement letter by
and between McDonald and Summit Bancorp.
3.24 EMPLOYEES; LABOR RELATIONS.
(a) Section 3.24 of the Disclosure Schedule is a list of all
severance contracts, employee handbooks or manuals, and settlements,
bonus, stock option, medical, dental or legal reimbursement plans, or
hospitalization or insurance plans, or other agreements or arrangements
providing for employee remuneration to which Summit is a party or by
which Summit is bound; all these contracts and arrangements are in full
force and effect, and neither Summit nor any other party is in default
thereunder.
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(b) Except as disclosed on Section 3.24 of the Disclosure
Schedule, the employees of Summit are not represented by any labor
union, and Summit is not and has not been involved in any
representative election, negotiations of a labor agreement, labor
dispute or grievance by any employee nor has it committed any act or
taken any action which is claimed or charged to have constituted an
unfair labor practice. There is no pending or threatened labor dispute,
strike, or work stoppage affecting the business.
(c) Except as disclosed in the Disclosure Schedule, all
employees of Summit are employed at will by Summit.
3.25 HAZARDOUS SUBSTANCES. Except as disclosed in Section 3.25 of the
Disclosure Schedule: (i) none of the Real Property or property previously owned
or occupied by Summit or in which Summit has or had any interest, legal or
equitable, is contaminated with any hazardous substance; (ii) Summit has, in
compliance with all applicable laws of federal, state or local governments,
arranged for the disposal of hazardous substances removed from the Real Property
and any real property previously owned or occupied by Summit or in which Summit
had any interest, legal or equitable through utilization of qualified licensed
waste disposal transporters and receivers; (iii) Summit has not caused and will
not cause, and to the best of its knowledge, after diligent investigation and
inquiry, there never has occurred, the release of any hazardous substance on the
Real Property or any real property previously owned or occupied by Summit or in
which Summit had any interest, legal or equitable; (iv) the Real Property or any
real property previously owned or occupied by Summit or in which Summit had any
interest, legal or equitable, is not subject to any federal, state or local
"superfund" lien, proceedings, claim, liability or action; (v) Summit is under
no threat or likelihood thereof for the cleanup, removal, or remediation of any
such hazardous substance from the Real Property or any real property previously
owned or occupied by Summit or in which Summit had any interest, legal or
equitable; (vi) there is no asbestos on the Real Property; (vii) there is no
underground storage tank on the Real Property. The terms "hazardous substance,"
"release," and "removal" as used herein shall have the same meanings and
definitions as set forth in paragraphs (14), (22), and (23), respectively, of
Title 42 U.S.C. Section 9601 provided, however, that the term "hazardous
substance" as used herein also shall include "hazardous waste" as defined in
paragraph (5) of 42 U.S.C. Section 6903 and "petroleum" as defined in paragraph
(8) of 42 U.S.C. Section 6991. The term "superfund" as used herein means the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended, being Title 42 U.S.C. Section 9601, ET SEQ., as amended, and any
similar state statute or local ordinance applicable to the property, including,
without limitation, all rules and regulations promulgated, administered and
enforced by any governmental agency or authority pursuant thereto. The term
"underground storage tank" as used herein shall have the same meaning and
definition as set forth in paragraph (1) of 42 U.S.C. Section 6991.
There have been no environmental investigations, studies, audits,
tests, reviews or other analyses conducted by, or which are in the possession
of, Summit in relation to any property or facility now or previously owned or
leased by Summit which have not been delivered to FirstFederal prior to the
execution of this Merger Agreement.
3.26 LOANS. Each loan reflected as an Asset in the Summit Financial
Statements (i) is evidenced by notes, agreements, or other evidences of
indebtedness which are true, genuine and what
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they purport to be, (ii) to the extent secured, has been secured by valid Liens
and security interests which have been perfected, and (iii) is the legal, valid
and binding obligation of the obligor named therein, enforceable in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent conveyance and
other laws of general applicability relating to or affecting creditors' rights
and to general equity principles, in each case other than loans as to which the
failure to satisfy the foregoing standards would not have a Material Adverse
Effect on Summit.
3.27 AGREEMENTS WITH REGULATORS. Summit is not 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, any governmental
entity outside the ordinary course of business and not generally applicable to
entities engaged in the same business, including, without limitation, cease and
desist orders of any regulatory authority, 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 Summit been advised by any
governmental entity that it is contemplating issuing, requiring, or requesting
(or is considering the appropriateness of issuing, requiring or requesting) any
such order, directive, agreement, memorandum of understanding, extraordinary
supervisory letter, commitment letter or similar undertaking. Except as set
forth in Section 3.27 of the Disclosure Schedule, Summit has not been cited in
any compliance report to Summit, as a result of an examination by any regulatory
authority for (i) material violations, or (ii) violations with respect to which
refunds or restitutions (which are material in amount to Summit, taken as a
whole) may be required.
3.28 VOTE REQUIRED. The affirmative vote of the holders of a majority
of the issued and outstanding shares of Summit Common Stock entitled to vote
thereon is the only vote of the holders of any class or series of Summit capital
stock necessary to approve this Merger Agreement and the transactions
contemplated hereby.
3.29 SECURITIES. The investment portfolios of Bank Subsidiary consist
of securities in marketable form. Except as disclosed in Section 3.29 of the
Disclosure Schedule, since September 30, 1996, to the date hereof, Bank
Subsidiary has not incurred any unusual or extraordinary losses in its
investment portfolio, and, except for events relating to the business
environment in general, including market fluctuations, the executive officers of
Summit are not aware of any events which are reasonably certain to occur in the
future and which reasonably can be expected to result in any material adverse
change in the quality or performance of Bank Subsidiary's investment portfolio
on a consolidated basis.
3.30 INDEMNIFICATION. To the best knowledge of Summit, except as set
forth in Section 3.30 of the Disclosure Schedule, no action or failure to take
action by any director, officer, employee or agent of Summit has occurred which
would give rise to a claim or a potential claim by any such person for
indemnification from Summit under the corporate indemnification provisions of
the Summit Articles or Summit Regulations applicable to Summit Bancorp on the
date of this Merger Agreement.
3.31 DISCLOSURE. To the best of Summit's knowledge after due inquiry,
all material facts relating to the business of Summit have been disclosed to
FirstFederal in this Merger Agreement. No representation or warranty contained
in this Merger Agreement, and no statement contained in the
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Disclosure Schedule or in any certificate, memorandum, list or other writing
provided or furnished to FirstFederal pursuant to any provision of this Merger
Agreement (including without limitation the Summit Financial Statements), by
Summit on its behalf, contains or will contain any untrue statement of a
material fact or omits any material fact, the omission of which would be
misleading.
ARTICLE IV
----------
REPRESENTATIONS AND WARRANTIES OF FIRSTFEDERAL FINANCIAL
--------------------------------------------------------
REPRESENTATIONS AND WARRANTIES. In order to induce Summit Bancorp to
enter into this Merger Agreement and to consummate the transactions contemplated
hereunder, FirstFederal Financial makes the following representations,
warranties, covenants and agreements:
4.1 ORGANIZATION OF FIRSTFEDERAL.
(a) FirstFederal Financial is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Ohio, and has all necessary corporate power and authority to conduct
its business as and to the extent now conducted and to own, use and
lease its Assets. Section 4.1 of the Disclosure Schedule lists all
states in which FirstFederal is engaged in business, or owns, uses, or
leases Assets. FirstFederal is qualified to do business and is in good
standing in those jurisdictions specified in Section 4.1 of the
Disclosure Schedule, which are the only jurisdictions in which such
qualification is legally required, except where the failure to be so
qualified or in good standing (considering all such failures together)
does not and will not have a Material Adverse Effect upon the Business
or Condition of FirstFederal.
(b) The copies of FirstFederal Financial's Articles of
Incorporation as amended to date, certified by the Secretary of State
of Ohio, and the Code of Regulations as amended to date, certified by
FirstFederal Financial's Secretary, all of which have been heretofore
delivered to Summit, are and at Closing will be complete and correct.
Further, the minute books and stock record books of FirstFederal are
accurate and complete. Such minute books and stock record books will be
available for inspection at any reasonable time by Summit's duly
authorized representatives, and copies of any minutes of any meeting
held or documents otherwise constituting corporate action by
FirstFederal after the date of such inspection will be furnished to
Summit promptly and in no event later than Closing.
4.2 AUTHORITY AND APPROVAL.
(a) FirstFederal Financial has all requisite corporate power
and authority to enter into and perform all of its obligations under
this Merger Agreement. The execution and delivery of this Merger
Agreement and the consummation of the transactions contemplated hereby
have been duly and validly authorized by all necessary corporate action
in respect thereof on the part of FirstFederal Financial.
(b) The consummation of the transactions contemplated hereby
and the compliance by FirstFederal with the terms of this Merger
Agreement do not and will not conflict with, result in, or constitute
any of the following:
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(i) A breach of any term or provision of this
Merger Agreement;
(ii) Except for the matters set out on Section 4.2
of the Disclosure Schedule, a default or an event that, with
notice or lapse of time, or both, would be a default, breach
or violation of the Articles of Incorporation or Code of
Regulations of FirstFederal or any Contract, License,
commitment, or other agreement, instrument, or arrangement to
which FirstFederal is a party or by which FirstFederal or its
Assets are bound;
(iii) Except as to matters set out on Section 4.2 of
the Disclosure Schedule, an event that would permit any party
to terminate any agreement with FirstFederal or to accelerate
the maturity of any obligation of FirstFederal; or
(iv) The creation or imposition of any Lien on any
of its Assets.
4.3 CAPITAL STOCK. The authorized capital stock of FirstFederal
Financial consists of:
(a) 20,000,000 shares of FirstFederal Common Stock, of which
4,052,757 shares are issued and outstanding; and 440,408 shares are
held in treasury as of September 30, 1996.
(b) 1,500,000 shares serial preferred stock, no par value, of
which (i) 500,094 shares of 7% Cumulative Convertible Series A are
outstanding and (ii) 480,977 shares of 6.5% Cumulative Convertible
Series B are outstanding as of September 30, 1996.
All issued and outstanding shares of FirstFederal Common Stock are
validly issued and outstanding, fully paid and nonassessable and were not issued
in violation of any preemptive right of any stockholder of FirstFederal. As of
the date hereof, no shares of FirstFederal Common Stock were reserved for
issuance except that 526,389 shares were reserved for issuance upon the exercise
of options granted heretofore pursuant to FirstFederal's stock option plan.
Options have been granted with respect to 410,349 shares, all of which are
presently held by the employees, officers, and directors of Thrift Subsidiary.
As of the date hereof, there are no other outstanding subscriptions, options,
rights, warrants, convertible securities, or other agreements or commitments
obligating FirstFederal to issue (or to transfer from treasury) any additional
shares of its capital stock of any class.
FirstFederal has taken all action necessary so that the execution of
this Merger Agreement and the consummation of the transactions contemplated
hereby do not and will not result in the grant of any rights to any person under
any agreements or enable rights to any capital stock of FirstFederal to be
exercised, distributed, or triggered, except as otherwise provided in this
Merger Agreement.
4.4 SEC DOCUMENTS/REGULATORY FILINGS. FirstFederal Financial has filed
all SEC documents required by the security laws and such SEC documents complied
as of their respective dates of filing in all material respects with security
laws. FirstFederal has filed all reports required by statute or regulation to be
filed with any federal or state banking or thrift regulatory agency except where
the failure to so file would not have a Material Adverse Effect on FirstFederal,
and such
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reports were prepared in accordance with the applicable statutes, regulations,
and instructions in existence as of the date of filing of such reports in all
material respects.
4.5 SUBSIDIARIES.
------------
(a) FirstFederal does not own, directly or indirectly, 5% or
more of the outstanding capital stock or other voting securities of any
corporation, thrift, or other organization, except as disclosed on
Section 4.5 of the Disclosure Schedule. The outstanding shares of
capital stock of each Subsidiary are validly issued and outstanding,
fully paid and nonassessable, and all such shares are directly owned by
FirstFederal, free and clear of all liens, claims, and encumbrances. No
Subsidiary has any outstanding securities of any kind, nor any
outstanding options, warrants, or other rights entitling another person
to acquire any securities of a Subsidiary of any kind other than the
shares of capital stock owned by FirstFederal.
(b) Each Subsidiary is a duly organized corporation or savings
and loan association validly existing and in good standing under
applicable laws. Each Subsidiary (i) has all requisite power and
authority to carry on its business as now conducted; and (ii) is duly
licensed or qualified to do business in the states of the United States
where its ownership or leasing of property or the conduct of its
business requires such licensing or qualification and where failure to
be so licensed or qualified would have a Material Adverse Effect on
FirstFederal. Each Subsidiary has all federal, state, and local
governmental authorizations necessary for it to own or lease its
properties or assets and to carry on its business as is now being
conducted, except where the failure to be so authorized would not have
a Material Adverse Effect on FirstFederal.
4.6 AFFILIATE TRANSACTIONS. Except as disclosed in Section 4.6 of
the Disclosure Schedule, as of the date of this Merger Agreement:
(i) There are no Liabilities between FirstFederal,
on the one hand, and the officers and directors of
FirstFederal, on the other hand, that were not incurred
on an arm's length basis;
(ii) No executive officer, director, or Affiliate of
a director or executive officer provides, provided, or caused
or causes to be provided any Assets, services, or facilities
to FirstFederal or otherwise does business with FirstFederal,
other than on an arm's length basis.
4.7 BOOKS AND RECORDS. The Books and Records of FirstFederal fairly
reflect in all material respects the transactions to which it is a party and by
which its properties are subject or bound. Such Books and Records have been
properly kept and maintained in compliance in all material respects with GAAP
and all applicable legal requirements.
4.8 FINANCIAL STATEMENTS. The FirstFederal Financial Statements, all
previously provided to Summit, fairly present the consolidated financial
position of FirstFederal Financial and its consolidated Subsidiaries as of the
date indicated, and the consolidated results of operations,
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changes in shareholders' equity and cash flows of FirstFederal Financial and its
consolidated Subsidiaries for the period then ended in conformity with GAAP.
There are no material Liabilities of FirstFederal required to be disclosed in
FirstFederal's Financial Statements other than the Liabilities disclosed in such
Financial Statements (including footnotes). All monetary Liabilities and
material non-monetary Liabilities incurred after the date of the Financial
Statements were incurred in the ordinary course of business consistent with past
practices and in the aggregate are not material to FirstFederal's business.
Except for those Subsidiaries listed in Section 4.8 of the Disclosure Schedule,
the statements of financial condition and results of operations of each
Subsidiary are, and for all periods referred to in this Section 4.8 have been,
consolidated with those of FirstFederal Financial.
4.9 ABSENCE OF CHANGES. Since September 30, 1996: (i) there has not
been any material adverse change, or any event or development which,
individually or together with other such events, could reasonably be expected to
result in a material adverse change, in the Business or Condition of
FirstFederal; (ii) neither FirstFederal's chief executive officer nor its chief
financial officer is aware of any events which have occurred since September 30,
1996, or which are reasonably certain to occur in the future and which
reasonably can be expected to result in any Material Adverse Effect in the
Business or Condition of FirstFederal; and (iii) there have been no material
changes in the methods of business operation of FirstFederal.
4.10 CONSENT. Except as set forth in Section 4.10 of the Disclosure
Schedule, no consent, approval, order or authorization of, or registration,
declaration or filing with, any federal or state governmental authority is
required by or with respect to FirstFederal in connection with the execution and
delivery of this Merger Agreement or the consummation of the transactions
contemplated hereby.
4.11 TAXES.
(a) FILING OF TAX RETURNS. Except where properly extended,
within the times and in the manner prescribed by law, FirstFederal has
filed all federal, state, and local tax returns required by law. Except
as disclosed in Section 4.11(a) of the Disclosure Schedule, the federal
income tax returns of FirstFederal have not been audited or
investigated by the Internal Revenue Service for the preceding five
years. Except as reflected on Section 4.11 of the Disclosure Schedule,
there are no present disputes as to taxes payable by FirstFederal. In
addition, all tax returns and reports required by applicable law or
governmental regulations have been filed by FirstFederal, and such
returns and reports are (and as to such returns and reports not filed
as of the date hereof, will be) true, correct, and complete in all
material respects and present, fairly and accurately, the information
required to be shown therein. There are not and will not be any tax
deficiencies assessed against FirstFederal that would have a Material
Adverse Effect on FirstFederal, and there are no tax deficiencies
proposed or threatened, and no audit of FirstFederal by any federal,
state or local authority is in progress, and FirstFederal has not
received notice regarding any audit.
(b) PAYMENT OF TAXES. FirstFederal has, within the time and in
the manner prescribed by law, paid in full (and until the Closing Date
will pay within the time and in the manner prescribed by law) payroll
taxes (including, but not limited to, Social Security taxes), franchise
taxes, sales and use taxes, personal property taxes, real estate taxes
and assessments,
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and local, state and federal income taxes. In addition, FirstFederal
will pay or make timely provision for payment of all such taxes
thereafter payable by FirstFederal so that no Lien for any such taxes
will be placed (or attempted) upon any of the Assets, on or following
the Closing Date.
(c) TAX RESERVES. Except as disclosed in Section 4.11(c) of
the Disclosure Schedule, the amounts established as accruals for taxes
on the Financial Statements and on the Books and Records of
FirstFederal are reasonably expected to be sufficient for the payment
of all taxes of any kind, whether disputed or not, and whether accrued,
due, absolute, contingent or otherwise, which were or which may be
payable by FirstFederal for any periods or fiscal years prior to or
including the Closing Date, including all taxes imposed before or after
the Closing Date which are attributable to any such period or fiscal
year. No differences exist between the amounts of the book basis and
the tax basis of Assets (net of Liabilities) that are not accounted for
by an accrual on the books for federal income tax purposes.
(d) EXTENSIONS AND WAIVERS. Except as disclosed in Section
4.11(d) of the Disclosure Schedule, FirstFederal has not requested any
extension of time within which to file any tax return, which tax return
has not since been filed, nor has FirstFederal executed any outstanding
waivers or comparable consents regarding the application of the statute
of limitations with respect to any taxes or tax returns.
4.12 LITIGATION. Except as disclosed in Section 4.12 of the
Disclosure Schedule:
(a) There is no material pending or threatened litigation
involving FirstFederal as defendant or plaintiff. There is no suit,
action, arbitration, or legal, administrative, or other proceeding, or
governmental investigation pending or threatened, against or affecting
FirstFederal, or its business or Assets that if decided adversely to
FirstFederal, would result in a Material Adverse Effect on
FirstFederal. FirstFederal is not in default with respect to any Order
of any federal, state, local or foreign court, department, agency, or
instrumentality.
(b) There are no facts or circumstances known to FirstFederal
that could reasonably be expected to give rise to any claim that would
be required to be disclosed pursuant to clause (a) above.
4.13 COMPLIANCE WITH LAWS. FirstFederal has complied with and is not in
violation of, applicable federal, state, or local statutes, laws and regulations
(including, without limitation, any applicable building, zoning, or other law,
ordinance, or regulation) affecting its properties or the operation of its
business, including without limitation the Real Estate Settlement Procedures
Act, Fair Debt Collection Practices Act, Fair Credit Reporting Act, Equal Credit
Opportunity Act, Truth in Lending Act, Occupational Safety and Health Act of
1970, the Fair Labor Standards Act of 1938, Title VII of the Civil Rights Act of
1964, the Rehabilitation Act of 1973, Federal Age Discrimination in Employment
Act of 1967, Consolidated Omnibus Budget Reconciliation Act of 1985, the Workers
Adjustment and Retraining Notification Act of 1988, Civil Rights Act of 1991,
Americans with Disabilities Act of 1991, the Family and Medical Leave Act of
1993, as all such have been amended, except which individually or in the
aggregate do not and insofar as reasonably can be foreseen, in the
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future will not have a Material Adverse Effect on FirstFederal. Except as
disclosed in Section 4.13 of the Disclosure Schedule, no investigation or review
by any governmental entity with respect to FirstFederal outside the ordinary
course of business and not generally applicable to entities engaged in the same
business is pending or, to the knowledge of FirstFederal, threatened, nor has
any governmental entity indicated an intention to conduct the same in each case
other than those, the outcome of which will not have a Material Adverse Effect
on FirstFederal.
Further, neither FirstFederal nor any employee, officer, or director
has knowingly engaged in any activity or knowingly omitted to take any action
which, in any material way, has resulted or reasonably could be expected to
result in the violation of (i) any local, state or federal law including without
limitation the Bank Secrecy Act, the Community Reinvestment Act, applicable
consumer protection and disclosure laws and regulations, including without
limitation, Truth in Lending, Truth in Savings and similar disclosure laws and
regulations, and equal employment and employment discrimination laws and
regulations) or (ii) any regulation, order, injunction or decree of any court or
governmental body, the violation of either of which could reasonably be expected
to have a Material Adverse Effect on FirstFederal.
4.14 BENEFIT PLANS.
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(a) Section 4.14 of the Disclosure Schedule contains a true
and complete list of all employee benefit plans within the meaning of
Section 3(3) of ERISA ("Employee Benefit Plans"), whether or not any
such Employee Benefit Plans are otherwise exempt from the provisions of
ERISA, established, maintained or contributed to or obligated to form a
fund by FirstFederal (FirstFederal shall include, for purposes of this
Section 4.14 only, all employers, whether or not incorporated, which by
reason of common control are treated together with FirstFederal as a
single employer within the meaning of Code Section 414(b) and (c) since
September 2, 1974.)
(b) FirstFederal does not maintain or contribute to any such
employee benefit plan subject to ERISA which is not in substantial
compliance with ERISA, or which has incurred any accumulated funding
deficiency within the meaning of Section 412 or 418B of ERISA, or which
has applied for or obtained a waiver from the Internal Revenue Service
of any minimum funding requirement under Section 412 of the Code.
FirstFederal has not incurred any liability to the Pension Benefit
Guaranty Corporation ("PBGC") in connection with any employee benefit
plan covering any employees of FirstFederal or ceased operations at any
facility or withdrawn from such plan in a manner which could subject it
to liability under Section 4062(e), 4063 or 4064 of ERISA, and knows of
no facts or circumstances which might give rise to any liability of
FirstFederal to the PBGC under Title IV of ERISA. FirstFederal has not
incurred any withdrawal liability within the meaning of Sections 4201
and 4204 of ERISA, to any employee benefit plan which is a
multiemployer plan (as defined in Section 4001 of ERISA), and no event
has occurred, and there exists no condition or set of circumstances,
which presents a material risk of the occurrence of any withdrawal from
or the partition, termination, reorganization or insolvency of any
multiemployer plan which could result in any liability to FirstFederal.
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(c) Full payment has been made of all amounts which
FirstFederal is required for any reason to have paid as contributions
to any Employee Benefit Plan as of the last day of the most recent
fiscal year of such Employee Benefit Plan ended prior to the final
Closing Date. FirstFederal has made adequate provision for reserves to
meet contributions that have not been made because they are not yet due
under the terms of any Employee Benefit Plan or related agreements.
Benefits under all Employee Benefit Plans are as represented and have
not been increased subsequent to the date as of which documents have
been provided.
(d) Each Employee Benefit Plan intended to be qualified under
Section 401(a) of the Code has been determined to be so qualified by
the Internal Revenue Service and nothing has occurred since the
effective date of the last such determination which resulted in or is
likely to result in the revocation of such determination.
(e) No reportable event (as defined in Section 4043 of ERISA)
has occurred with respect to any Employee Benefit Plan and FirstFederal
has not engaged in any transaction with respect to the Employee Benefit
Plans which would subject FirstFederal to a tax, penalty or liability
for prohibited transactions under ERISA or the Code nor have any of
FirstFederal's directors, officers, or employees to the extent they or
any of them are fiduciaries with respect to such plans, breached any of
their responsibilities or obligations under Title I of ERISA.
(f) FirstFederal has furnished Summit with true and complete
copies of: (i) all Employee Benefit Plans as in effect, together with
all amendments thereto which will become effective at a later date;
(ii) the most recent Internal Revenue Service determination letter
issued with respect to each Employee Benefit Plan; and (iii) Form 5500
for the most recent completed fiscal year for each Employee Benefit
Plan required to file such form.
(g) There are no material actions, suits or claims pending or
threatened, against the Assets of any Employee Benefit Plan.
(h) The plans are qualified under Code Section 401 and the
associated trust funds are exempt from tax under Code Section 501.
(i) Each Employee Benefit Plan which FirstFederal maintains
has at all times been administered in material compliance with all
applicable requirements of ERISA, including all reporting requirements,
with respect to the Internal Revenue Service, the Department of Labor
and the Pension Benefit Guaranty Corporation and including all
disclosure requirements with respect to plan participants and
beneficiaries.
(j) FirstFederal does not maintain nor is it under any
obligation or duty to establish any type of post retirement benefit,
medical, or life insurance plan for its employees.
4.15 REAL PROPERTY. In addition to the representations and warranties
contained in Section 4.16, FirstFederal hereby makes the following additional
representations, warranties and covenants to and with Summit regarding the Real
Property owned or leased by FirstFederal as listed on Section 4.15 of the
Disclosure Schedule:
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(a) Section 4.15(a) of the Disclosure Schedule contains a true
and correct list of (i) each parcel of Real Property owned by
FirstFederal, (ii) each parcel of Real Property leased by FirstFederal
(as lessor or lessee), and (iii) all Liens relating to or affecting any
parcel of Real Property owned by FirstFederal, and except as listed in
Section 4.15(a) of the Disclosure Schedule, such Real Property owned by
FirstFederal is free and clear of all Liens, encumbrances, security
interests, pledges, equities, claims of others or restrictions
whatsoever, except:
(i) Zoning and building ordinances and regulations
which do not prohibit or restrict the present use of the
Real Property;
(ii) Real estate taxes and assessments, both general
and special, which may be a Lien but are not yet due and
payable as of the Closing Date;
(iii) Easements, covenants, agreements, encumbrances,
conditions, reservations, restrictions of record or other
exceptions affecting the real estate, if any, which are
disclosed to Summit and approved in writing by Summit prior
to the Closing Date.
FirstFederal has adequate rights of ingress and egress with respect to
such Real Property, buildings, structures, facilities, fixtures and
other improvements. FirstFederal has not received any notice or has
knowledge that the Real Property, as currently used by FirstFederal, is
in violation of any applicable federal, state or local statute,
ordinance, order, requirement, law, rule or regulation (including
without limitation, building, zoning or Environmental Laws) affecting
the Real Property, or that would have a Material Adverse Effect on the
value of the Real Property or its continued operation and use in the
ordinary course of business.
(b) The zoning of the Real Property permits the presently
existing improvements and the conduct and continuation of the business
presently being conducted on such Real Property.
(c) FirstFederal has a valid and subsisting leasehold estate
in and the right to quiet enjoyment of the Real Property leased by it
for the full term of the lease thereof. Each lease is a legal, valid
and binding agreement, enforceable in accordance with its terms, of
FirstFederal and of each other person that is a party thereto, and
except as set forth in Section 4.15(c) of the Disclosure Schedule,
there is no, and FirstFederal has not received notice of any default
(or any condition or event which, after notice or lapse of time or
both, would constitute a default) thereunder. None of the leases will
terminate or lapse by reason of the transactions contemplated by this
Merger Agreement.
(d) Except as disclosed in Section 4.15(d) of the Disclosure
Schedule, the improvements on the Real Property are structurally sound
and in good operating condition and in a state of good maintenance and
repair, are adequate and suitable for the purposes for which they are
presently being used and, to the knowledge of FirstFederal, there are
no condemnation or appropriation proceedings pending or threatened
against any of such Real Property or the improvements thereon.
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4.16 ASSETS. With respect to the Assets:
(a) Except as listed on Section 4.16(a) of the Disclosure
Schedule, FirstFederal has not received any notice nor does it have any
knowledge of any information that there has been any violation of any
statute, law, ordinance, or regulation of any governmental entity
affecting its Assets with respect to health, safety and environmental
and pollution control, including the disposition of hazardous or toxic
waste materials or emissions into the air, soil or water, or any form
of contamination that would have a Material Adverse Effect on the
value of the Assets or the continued use of the Assets by FirstFederal
in the ordinary course of business.
(b) Except as provided in Section 4.16(b) of the Disclosure
Schedule, FirstFederal has good and marketable title to the Assets,
free and clear of all Liens, encumbrances, security interests, pledges,
equities, claims of others or restrictions whatsoever.
(c) All equipment owned by FirstFederal is now in good working
condition and, as of the Closing Date, will be in good working
condition with no material defects other than those items identified to
Summit in Section 4.16(c) of the Disclosure Schedule, and except as
disclosed in Section 4.16(c) of the Disclosure Schedule, no
expenditures in excess of $100,000.00 are planned for the routine,
normal maintenance of such equipment. Except as stated in Section
4.16(c) of the Disclosure Schedule, no personal property used by
FirstFederal in connection with its business is held under any lease,
security agreement, conditional sales contract, or other title
retention or security arrangement, or is other than in the possession
and under the control of FirstFederal. The tangible personal property
reflected in those Books and Records constitutes all such tangible
personal property necessary for the conduct by FirstFederal of its
business as now conducted.
4.17 INTELLECTUAL PROPERTY. Except as previously disclosed,
FirstFederal or a Subsidiary owns the entire right, title and interest in and
to, or has valid licenses with respect to, all of the Intellectual Property
necessary in all material respects to conduct the business and operations of
FirstFederal and the FirstFederal Subsidiaries as presently conducted, except
where the failure to do so would not, individually or in the aggregate, have a
Material Adverse Effect on FirstFederal. None of such Intellectual Property is
subject to any outstanding order, decree, judgment, stipulation, settlement,
lien, charge, encumbrance or attachment, which order, decree, judgment,
stipulation, settlement, lien, charge, encumbrance or attachment would have a
Material Adverse Effect on FirstFederal.
4.18 CONTRACTS.
(a) Section 4.18(a) of the Disclosure Schedule (with paragraph
references corresponding to those set forth below) contains a true and
complete list of all Material Contracts of FirstFederal including, but
not limited to, the following:
(i) Contracts and other agreements with any current or
former officer, director, shareholder, affiliate, employee,
consultant, or agent;
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(ii) Contracts with any person containing any provision
or covenant prohibiting or limiting the ability of
FirstFederal to engage in any business activity or compete
with any person, or prohibiting or limiting the ability of
any person to compete with FirstFederal;
(iii) Contracts relating to the future disposition or
acquisition of any Assets, other than dispositions or
acquisitions in the ordinary course of business consistent
with past practice;
(iv) Contracts under which FirstFederal agrees to
indemnify any person;
(v) Contracts and other agreements relating to the
borrowing of money other than federally insured deposits,
creation of Liens, issuance of letters of credit, or the
guarantee of the payment of Liabilities or performance of
obligations by FirstFederal;
(vi) Contracts and other agreements relating to
provision of services which are not cancelable without
penalty in thirty (30) or fewer days notice;
(vii) powers of attorney;
(viii) other contracts and other agreements made
outside the ordinary course of business; and
(ix) all other contracts that involve the payment or
potential payment, pursuant to the terms of any such
contract, by or to FirstFederal of more than $250,000 and
cannot be terminated within 360 calendar days after giving
notice of termination without resulting in any material cost
or penalty to FirstFederal or any Subsidiary.
(b) Each Contract required to be disclosed in Section 4.18(a)
of the Disclosure Schedule is in full force and effect and constitutes
a legal, valid and binding agreement, enforceable in accordance with
its terms, of each party thereto; and except as disclosed in Section
4.18(b) of the Disclosure Schedule neither FirstFederal, nor, to the
knowledge of FirstFederal, any other party to such Contract, is or has
received notice that it is, in violation or breach of or default under
any such Contract (or with notice or lapse of time or both, would be in
violation or breach of or default under any such Contract). None of the
Contracts disclosed in Section 4.18(a) of the Disclosure Schedule will
terminate or lapse by reason of the transactions contemplated by this
Merger Agreement.
(c) Except as disclosed in Section 4.18(c) of the Disclosure
Schedule, FirstFederal is not a party to or bound by any Contract that
has been or could reasonably be expected to have, individually or in
the aggregate with any other such Contracts, a Materially Adverse
Effect on FirstFederal.
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(d) Except as disclosed in Section 4.18(d) of the Disclosure
Schedule and any other Section of the Disclosure Schedule, there are no
Contracts, commitments, leases, permits or other instruments necessary
to hold the Assets by FirstFederal, as and where now held by
FirstFederal, or to conduct the business of FirstFederal, as and where
now operated by FirstFederal, or related to the operation or management
of the Assets.
4.19 POOLING OF INTERESTS. As of the date of this Merger Agreement,
FirstFederal knows of no reason relating to it which would reasonably cause it
to believe that the Merger will not qualify as a pooling of interests for
financial accounting purposes.
4.20 RESERVED.
4.21 LICENSES. Except as disclosed in Section 4.21 of the Disclosure
Schedule:
(i) FirstFederal owns or validly holds all Licenses
that are material to its business or operations;
(ii) each License of FirstFederal is valid, binding and
in full force and effect; and
(iii) FirstFederal has not received any notice that it
is in default (or with the giving of notice or lapse of time
or both, would be in default) under any such License.
None of the Licenses of FirstFederal will terminate or lapse by reason of the
transactions contemplated by this Merger Agreement.
4.22 INSURANCE. To the best of FirstFederal's knowledge, FirstFederal
has maintained and now maintains (i) insurance on all its Assets of a type
customarily insured, covering property damage and loss of income by fire or
other casualty including, but not limited to, occurrence- based general
liability insurance, and (ii) adequate insurance protection against all
Liabilities, claims and risks against which it is customary to insure. To the
best of FirstFederal's knowledge after due inquiry, except as disclosed in
Section 4.22 of the Disclosure Schedule, there is no breach or default with
respect to any material provision contained in any policy or binder described in
this provision and there has not been any failure to give any notice or present
any claim under any such policy or binder in due or timely fashion. There are no
outstanding unpaid premiums, and there are no provisions for retrospective or
retroactive premium adjustments except as set forth in Section 4.22 of the
Disclosure Schedule, and FirstFederal has not received notice of any
cancellations or nonrenewal or disallowance of any claims under any such policy
or binder. Finally, except as disclosed in Section 4.22 of the Disclosure
Schedule, there has not been any instance since the formation of FirstFederal
where there has not been in full force and effect insurance policies providing
the types of insurance as described above. The insurance coverage provided by
the policies described in this section will not terminate or lapse by reason of
the transactions contemplated by this Merger Agreement.
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4.23 BROKERS AND FINDERS. Neither FirstFederal nor any of its
respective officers, directors or employees, has employed any broker, finder or
financial advisor or incurred any liability for any fees or commissions in
connection with the transactions contemplated herein.
4.24 EMPLOYEES; LABOR RELATIONS.
(a) Section 4.24 of the Disclosure Schedule is a list of all
severance contracts, employee handbooks or manuals, and settlements,
bonus, stock option, medical, dental or legal reimbursement plans, or
hospitalization or insurance plans, or other agreements or arrangements
providing for employee remuneration to which FirstFederal is a party or
by which FirstFederal is bound; all these contracts and arrangements
are in full force and effect, and neither FirstFederal nor any other
party is in default thereunder.
(b) Except as disclosed on Section 4.24 of the Disclosure
Schedule, the employees of FirstFederal are not represented by any
labor union, and FirstFederal is not and has not been involved in any
representative election, negotiations of a labor agreement, labor
dispute or grievance by any employee nor has it committed any act or
taken any action which is claimed or charged to have constituted an
unfair labor practice. There is no pending or threatened labor dispute,
strike, or work stoppage affecting the business.
(c) Except as disclosed in the Disclosure Schedule, all
employees of FirstFederal and its Subsidiaries are employed at will by
FirstFederal or such Subsidiaries.
4.25 HAZARDOUS SUBSTANCES. FirstFederal represents that, except as
disclosed in Section 4.25 of the Disclosure Schedule: (i) none of the Real
Property or property previously owned or occupied by FirstFederal or in which
FirstFederal has or had any interest, legal or equitable, is contaminated with
any hazardous substance; (ii) FirstFederal has, in compliance with all
applicable laws of federal, state or local governments, arranged for the
disposal of hazardous substances removed from the Real Property and any real
property previously owned or occupied by FirstFederal or in which FirstFederal
had any interest, legal or equitable through utilization of qualified licensed
waste disposal transporters and receivers; (iii) FirstFederal has not caused and
will not cause, and to the best of its knowledge, after diligent investigation
and inquiry, there never has occurred, the release of any hazardous substance on
the Real Property or any real property previously owned or occupied by
FirstFederal or in which FirstFederal had any interest, legal or equitable; (iv)
the Real Property or any real property previously owned or occupied by
FirstFederal or in which FirstFederal had any interest, legal or equitable, is
not subject to any federal, state or local "superfund" lien, proceedings, claim,
liability or action; (v) FirstFederal is under no threat or likelihood thereof
for the cleanup, removal, or remediation of any such hazardous substance from
the Real Property or any real property previously owned or occupied by
FirstFederal or in which FirstFederal had any interest, legal or equitable; (vi)
there is no asbestos on the Real Property; (vii) there is no underground storage
tank on the Real Property. The terms "hazardous substance," "release," and
"removal" as used herein shall have the same meaning and definition as set forth
in paragraphs (14), (22), and (23), respectively, of Title 42 U.S.C. Section
9601 provided, however, that the term "hazardous substance" as used herein also
shall include "hazardous waste" as defined in paragraph (5) of 42 U.S.C. Section
6903 and "petroleum" as defined in paragraph (8) of 42 U.S.C. Section 6991. The
term "superfund" as used herein means the Comprehensive Environmental Response,
Compensation and Liability Act, as
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amended, being Title 42 U.S.C. Section 9601, ET SEQ., as amended, and any
similar state statute or local ordinance applicable to the property, including,
without limitation, all rules and regulations promulgated, administered and
enforced by any governmental agency or authority pursuant thereto. The term
"underground storage tank" as used herein shall have the same meaning and
definition as set forth in paragraph (1) of 42 U.S.C. Section 6991.
There have been no environmental investigations, studies, audits,
tests, reviews or other analyses conducted by, or which are in the possession
of, FirstFederal in relation to any property or facility now or previously owned
or leased by FirstFederal which have not been delivered to Summit prior to the
execution of this Merger Agreement.
4.26 LOANS. Each loan reflected as an Asset in the FirstFederal
Financial Statements (i) is evidenced by notes, agreements, or other evidences
of indebtedness which are true, genuine and what they purport to be, (ii) to the
extent secured, has been secured by valid Liens and security interests which
have been perfected, and (iii) is the legal, valid and binding obligation of the
obligor named therein, enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent conveyance and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles, in each case other than loans as to which the failure to satisfy the
foregoing standards would not have a Material Adverse Effect on FirstFederal.
4.27 AGREEMENTS WITH REGULATORS. FirstFederal is not 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,
any governmental entity outside the ordinary course of business and not
generally applicable to entities engaged in the same business, including,
without limitation, cease and desist orders of any regulatory authority, 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
FirstFederal been advised by any governmental entity that it is contemplating
issuing, requiring, or requesting (or is considering the appropriateness of
issuing, requiring or requesting) any such order, directive, agreement,
memorandum of understanding, extraordinary supervisory letter, commitment letter
or similar undertaking. Except as set forth in Section 4.27 of the Disclosure
Schedule, FirstFederal has not been cited in any compliance report to
FirstFederal, as a result of an examination by any regulatory authority for (i)
material violations, or (ii) violations with respect to which refunds or
restitutions (which are material in amount to FirstFederal, taken as a whole)
may be required.
4.28 RESERVED.
4.29 SECURITIES. The investment portfolios of Thrift Subsidiary consist
of securities in marketable form. Except as disclosed in Section 4.29 of the
Disclosure Schedule, since September 30, 1996, to the date hereof, Thrift
Subsidiary has not incurred any unusual or extraordinary losses in its
investment portfolio, and, except for events relating to the business
environment in general, including market fluctuations, the executive officers of
FirstFederal are not aware of any events which are reasonably certain to occur
in the future and which reasonably can be expected to result in any material
adverse change in the quality or performance of Thrift Subsidiary's investment
portfolio on a consolidated basis.
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4.30 DISCLOSURE. To the best of FirstFederal's knowledge after due
inquiry, all material facts relating to the business of FirstFederal have been
disclosed to Summit in this Merger Agreement. No representation or warranty
contained in this Merger Agreement, and no statement contained in the Disclosure
Schedule or in any certificate, memorandum, list or other writing provided or
furnished to Summit pursuant to any provision of this Merger Agreement
(including without limitation the FirstFederal Financial Statements), by
FirstFederal on its behalf, contains or will contain any untrue statement of a
material fact or omits any material fact, the omission of which would be
misleading.
ARTICLE V
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COVENANTS
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5.1 SUMMIT'S COVENANTS. Summit Bancorp covenants and agrees with
FirstFederal Financial that, at all times from and after the date of this Merger
Agreement until the Effective Time, Summit will comply with all covenants and
provisions of this Section 5.1, except to the extent FirstFederal Financial may
otherwise consent in writing.
5.1.1 ACCESS TO INFORMATION. FirstFederal and its counsel, accountants,
and other representatives shall have full access during normal business hours to
all Books and Records of Summit. Summit shall furnish to FirstFederal and its
representatives all data and information concerning the business and Assets of
Summit that may reasonably be requested. Further, during the period from the
date of this Merger Agreement until the Effective Time each of Summit and
FirstFederal will promptly notify the other of (i) any material change in the
normal course of its business; (ii) any governmental complaints, investigations
or hearings (or other communications indicating that the same may be
contemplated), or receipt of any memorandum or understanding or cease and desist
order from a regulatory authority; or (iii) the institution or threat of
material litigation involving such parties and will keep the other party fully
informed of such events. During such period, FirstFederal and Summit shall
promptly provide the other with monthly unaudited financial statements as soon
as they are available, and each shall promptly provide the other with copies of
all the reports filed by it with any regulatory authority after the date of this
Merger Agreement through the Effective Time. Each of Summit and FirstFederal
agrees to keep the information contained in the monthly unaudited financial
statements strictly confidential.
5.1.2 CONDUCT OF BUSINESS. Summit shall carry on its business and
activities diligently and in substantially the same manner as they previously
have been carried out, and shall not make or institute any unusual or novel
methods of management, accounting, or operation that will vary materially from
those methods used by Summit as of the date of this Merger Agreement.
5.1.3 CORPORATE MATTERS. Summit will not (i) amend its Articles of
Incorporation, Code of Regulations or other charter documents, (ii) issue any
shares of its capital stock, (iii) issue or create any warrants, obligations,
subscriptions, options, convertible securities, or other commitments under which
any additional shares of its capital stock of any class might be directly or
indirectly authorized, issued, or transferred from treasury, or (iv) agree to do
any of the acts listed above.
5.1.4 DISTRIBUTION AND STOCK. Summit shall not:
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(a) Declare, set aside, or pay any dividend, or authorize a stock
split, or make any distribution in respect of its capital stock;
(b) Directly or indirectly purchase, redeem, or otherwise acquire
any shares of its capital stock except that Summit Bancorp shall be
entitled to purchase its common stock for the purpose of making a
contribution of such common stock to its 401(k) profit sharing plan
provided that the cost of such common stock does not exceed $35,000;
(c) Enter into any agreement obligating it to do any of the
foregoing prohibited acts.
5.1.5 INSURANCE. Summit will continue to carry its existing insurance,
subject to variations in amounts required by the ordinary operations of its
business. At the request of FirstFederal and at FirstFederal's sole expense, the
amount of insurance against fire and other casualties which Summit carries on
any of its properties or in respect of its operations shall be increased by such
amount or amounts as FirstFederal shall specify.
5.1.6 EMPLOYEES. Except as disclosed in the Disclosure Schedule or
except in the ordinary course of business and consistent with past practice,
Summit will not do, or agree to do, any of the following acts: (i) grant any
increase in salaries or wages payable or to become payable to any officer,
employee, sales agent, or representative, or (ii) increase benefits payable to
any officer, employee, sales agent, or representative under any bonus or pension
plan or other Contract or commitment.
5.1.7 NEW BUSINESS. Summit will not, without FirstFederal's written
consent, do or agree to enter into any Contract, commitment, or transaction not
in the usual and ordinary course of business.
5.1.8 AGREEMENTS. Except as disclosed in the Disclosure Schedule,
Summit will not modify, amend, cancel, or terminate any of its existing
Contracts, or agree to do any of those acts nor enter into any agreement to
make, or become obligated to make, any capital expenditures in excess of
$25,000; make, enter into or review any agreement for services to be provided to
Summit Bancorp or Bank Subsidiary or permit the automatic renewal of any such
agreement, except any agreement for services having a term of not more than
three months or requiring the expenditure of not more than $25,000; apply to the
appropriate regulatory authorities to establish a new branch office or expand
any existing branch office; or acquire, become obligated to acquire, or enter
into any agreement to acquire, any banking or non-banking company or any branch
offices of any such companies.
5.1.9 BOOKS AND RECORDS. Except to the extent required by applicable
law, Summit shall: (i) cause Summit's Books and Records to be maintained in the
usual, regular and ordinary manner, and (ii) not permit any material change in
any pricing, investment, hedging, accounting, financial or managerial accounting
or reporting, credit or allowance or in any method of calculating any
contingency or other reserve of Summit Bancorp or any Subsidiary for accounting,
financial reporting or tax purposes.
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5.1.10 COMPLIANCE WITH LAWS. Summit shall comply, in all material
respects, with all laws, rules, regulations, and Orders applicable to the
business of Summit and promptly, following receipt thereof, give FirstFederal
copies of any notice received alleging any violation of any such law or Order.
5.1.11 SHAREHOLDERS' MEETING. Summit Bancorp, after consultation with
FirstFederal, will take all action necessary to call and hold its annual or a
special meeting of its shareholders for the purpose of approving this Merger
Agreement, and any other documents or actions necessary to the consummation of
the Merger provided for herein pursuant to law. Subject only to (i) Summit
Bancorp's Board of Directors' review of FirstFederal Financial's Registration
Statement to be filed with the SEC described in this subparagraph and its
reasonable satisfaction with the information set forth therein and (ii) the
exercise of their fiduciary duties, the Board of Directors of Summit Bancorp
intends to inform the shareholders of Summit Bancorp in the proxy materials
relating to the annual or special meeting that a majority of directors of Summit
Bancorp intend to vote all shares of Summit Common Stock which they own of
record or have voting control over in favor of approving this Merger Agreement
and any such other necessary documents or actions, and the requisite number of
directors under Summit's Articles will recommend approval of this Merger
Agreement to the other shareholders of Summit Bancorp. Summit shall cooperate
with FirstFederal in the preparation of such proxy materials which shall be
included and filed with, as a part of, FirstFederal Financial's Registration
Statement filed with the SEC for the registration of the Shares. Neither Summit
nor its officers, directors, and representatives will, without FirstFederal's
prior written consent, send or deliver any written communications to Summit
Bancorp's shareholders in their role as shareholders.
5.1.12 SOLICITATIONS. Summit shall not, directly or indirectly, and
shall cause their respective executive officers, directors, employees, agents
and advisors not to, directly or indirectly, solicit or initiate any proposals
or offers from any person, or discuss or negotiate with any such person,
relating to any acquisition or purchase of all or a material amount of the
assets of, or any equity securities of, or any merger, consolidation, or
business combination with, Summit Bancorp or the Bank Subsidiary (such
transactions are referred to herein as "Acquisition Transactions"), provided,
however, that nothing contained in this Section shall prohibit (i) Summit
Bancorp or the Bank Subsidiary, as the case may be, from furnishing information
to, or entering into discussions or negotiations with, any person or entity that
makes an unsolicited proposal of an Acquisition Transaction if and to the extent
that (a) the Board of Directors of Summit Bancorp, after consultation with and
based upon the written advice of legal counsel, determines in good faith that
such action is required for the directors of Summit Bancorp to fulfill their
fiduciary duties and obligations to the Summit Bancorp stockholders and other
constituencies under OGCL, taking into consideration the bidding procedures
engaged in connection with the transactions contemplated hereby and (b) prior to
furnishing such information to, or entering into discussions or negotiations
with, such person or entity, Summit Bancorp provides immediate written notice to
FirstFederal to the effect that it is furnishing information to, or entering
into discussions or negotiations with, such person or entity, or (ii) the Board
of Directors of Summit Bancorp from failing to make, withdrawing or modifying
its recommendation referred to in Section 5.11 following receipt of a proposal
for an Acquisition Transaction if the Board of Directors of Summit Bancorp,
after consultation with and based upon the written advice of legal counsel,
determines in good faith that such action is required for the directors of
Summit Bancorp to fulfill their fiduciary duties and obligations to the Summit
Bancorp
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stockholders and other constituencies under Ohio law, taking into consideration
the bidding procedures engaged in connection with the transactions contemplated
hereby.
5.1.13 BREAK-UP FEE.
(a) Summit Bancorp shall pay FirstFederal a fee of $750,000
promptly following termination of this Merger Agreement after the first
to occur of any of the following events:
(i) (A) the shareholders of Summit Bancorp shall not
have approved the Merger on or before September 30,
1997 if, prior thereto or the termination date of
this Merger Agreement, whichever is earlier,
FirstFederal is not in breach of its material
obligations, and (B) any person (other than
FirstFederal Financial or any affiliate of
FirstFederal Financial or any person or entity acting
in concert with FirstFederal Financial or such
affiliate (a "FirstFederal Entity")) shall have
"commenced" (as such term is defined in Rule 14d-2
under the Securities Exchange Act of 1934 (the
"Exchange Act")) a tender offer or exchange offer to
purchase shares of Summit Common Stock such that,
upon consummation of such offer, such person would
have Beneficial Ownership (as defined below) or the
right to acquire Beneficial Ownership of twenty-five
percent (25%) or more of the voting power of Summit
and (C) within twelve (12) months after the earliest
of the date of Summit Bancorp shareholders' meeting
at which the Merger is submitted for approval and
voted upon, the date this Agreement is terminated or
September 30, 1997, any person (other than a
FirstFederal Entity) shall have entered into a
written understanding in principle or an agreement to
consolidate or merge with Summit, to acquire all or
substantially all of Summit's assets or stock, or to
engage in a similar transaction;
(ii) (A) if, prior to the termination date of this
Merger Agreement, FirstFederal Financial is not in
breach of its obligations hereunder, and any person
(other than a FirstFederal Entity) shall have
acquired Beneficial Ownership or the right to acquire
Beneficial Ownership of twenty-five percent (25%) or
more of the voting power of Summit and (B) within
twelve (12) months after the earliest of the date of
Summit Bancorp's shareholders' meeting at which the
Merger is submitted for approval and voted upon, the
date this Merger Agreement is terminated or September
30, 1997, any person (other than a FirstFederal
Entity) shall have entered into a written
understanding in principle or an agreement to
consolidate or merge with Summit, to acquire all or
substantially all of Summit's assets or stock, or to
engage in a similar transaction;
(iii) (A) the shareholders of Summit Bancorp shall
not have approved the Merger on or before September
30, 1997, if, prior thereto or the termination date
of this Merger Agreement, whichever is earlier,
FirstFederal Financial is not in breach of its
obligations hereunder, and (B) subsequent to the date
hereof any person (other than a FirstFederal Entity)
shall have publicly
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announced a bona fide interest in (x) acquiring
Summit by merger, consolidation, purchase of all or
substantially all of its assets or any other similar
transaction or (y) making an offer described in clause
(i) above and in either such case, within twelve (12)
months after the earlier of the date of Summit Bancorp
shareholders' meeting at which the Merger is submitted
for approval and voted upon or September 30, 1997,
such person (other than a FirstFederal Entity) shall
have entered into a written understanding in principle
or an agreement to consolidate or merge with Summit,
to acquire all or substantially all of Summit's assets
or stock, or to engage in a similar transaction;
(iv) (A) the shareholders of Summit Bancorp shall not
have approved the Merger on or before September 30,
1997, if, prior thereto or the termination date of
this Merger Agreement, whichever is earlier,
FirstFederal Financial is not in breach of its
obligations hereunder, and (B) any person, with
respect to Summit Common Stock, shall have publicly
solicited proxies or written consents or become a
"participant" in any "solicitation" (as such terms
are defined in Regulation 14A under the Exchange Act)
in opposition to the Merger and within twelve (12)
months after the earlier of the date of Summit
Bancorp's shareholders' meeting at which the Merger
is submitted for approval and voted upon or September
30, 1997, such person (other than a FirstFederal
Entity) shall have entered into a written
understanding in principle or an agreement to
consolidate or merge with Summit, to acquire all or
substantially all of Summit's assets or stock, or to
engage in a similar transaction;
(v) unless FirstFederal Financial is in breach of its
obligations hereunder, the Board of Directors of
Summit Bancorp, other than as required in the
exercise of its fiduciary duties (as determined in
good faith by such directors), fails to make,
withdraws, or modifies in a manner adverse to
FirstFederal Financial, its recommendation that
shareholders of Summit Bancorp vote to approve the
Merger before the date of Summit Bancorp's
shareholders' meeting at which the Merger is to be
submitted for approval and voted upon and where
Summit Bancorp has not terminated this Merger
Agreement pursuant to the provisions of Section
5.1.11 hereof; or
(vi) unless FirstFederal Financial is in breach of its
obligations hereunder, at or prior to Summit Bancorp's
shareholders' meeting at which the Merger is submitted
for approval and voted upon or prior to the
termination date of this Agreement, whichever is
earlier, a person (other than a FirstFederal Entity)
enters into a written understanding in principle or an
agreement to consolidate or merge with Summit, to
acquire all or substantially all of Summit's assets or
to engage in a similar transaction.
(b) As used in this Section, Beneficial Ownership
shall have the meaning ascribed to it in Rule 13d-3 under the
Exchange Act.
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5.1.14 CONFIDENTIALITY. Except as may be required by law, Summit
agrees that unless and until the Closing has been consummated, Summit, its
officers, directors, and other representatives, will hold in strict confidence
and will not use to the detriment of FirstFederal any data or information
contained in connection with this transaction or Merger Agreement with respect
to FirstFederal's business. If the transactions contemplated by this Merger
Agreement are not consummated, Summit will return to FirstFederal all such data
and information that FirstFederal may reasonably request that was made available
to Summit in connection with this transaction.
5.1.15 RESTRICTED STOCK. Prior to the Closing Date but subsequent to
both Regulatory Approval, and approval of this Merger Agreement by Summit's
shareholders; Summit Bancorp shall (i) take all action necessary to cause the
release and lapse of the restrictions set forth in the Restricted Stock Award
Agreement dated August 15, 1996, by and between Summit Bancorp and David C.
Vernon ("Vernon") on the restricted Summit Common Shares owned by Vernon; and
(ii) notwithstanding any other provision to the contrary, pay a bonus to Vernon
in an amount not greater than $290,000 (the total local, state and federal
income and related withholding taxes payable by Vernon as a result of the
inclusion in his gross income of amounts attributable to the lapse of the
restrictions set forth in the Restricted Stock Award Agreement). In the event
the bonus is to be greater than $290,000, Summit Bancorp shall request that
FirstFederal Financial provide written consent prior to the authorization or
payment of such bonus.
5.2 FIRSTFEDERAL'S COVENANTS. FirstFederal Financial covenants and
agrees with Summit Bancorp that, at all times from and after the date of this
Merger Agreement until the Effective Time, FirstFederal will comply with all
covenants and provisions of this Section 5.2, except to the extent Summit
Bancorp may otherwise consent in writing.
5.2.1 LISTING. FirstFederal Financial will file the appropriate
form with the National Association of Securities Dealers, Inc. ("NASD") at the
time prescribed by applicable rules and regulations. In addition, FirstFederal
Financial will use its best efforts to maintain its listing on Nasdaq.
5.2.2 RESERVED.
5.2.3 EMPLOYEE BENEFIT PLANS. All Bank Subsidiary's employees
retained by FirstFederal shall receive the standard package of FirstFederal
employee welfare benefits which are in place throughout the FirstFederal holding
company system. These benefits include group health and major medical insurance,
group life insurance, and profit sharing participation, and other customary
benefits. Summit's employees shall be entitled to participate immediately
following the Closing Date in all employee benefit plans sponsored by
FirstFederal on the same terms and to the same extent as similarly situated
employees. Such employees shall receive credit for their period of service to
Summit for purposes of determining participation and vesting in all FirstFederal
employee benefit plans. An employee's entitlement to benefits under such
FirstFederal plans shall be subject to the limits set out in Section 415 of the
Code.
5.2.4 CONFIDENTIALITY. Except as may be required by law, FirstFederal
agrees that unless and until the Closing has been consummated, FirstFederal, its
officers, directors, and other representatives, will hold in strict confidence
and will not use to the detriment of Summit any data
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or information obtained in connection with this transaction or Merger Agreement
with respect to Summit's business. If the transactions contemplated by this
Merger Agreement are not consummated, FirstFederal will return to Summit all
such data and information that Summit may reasonably request that was made
available to FirstFederal in connection with this transaction.
5.3 MUTUAL COVENANTS. Summit Bancorp and FirstFederal Financial
covenant and agree with each other that, at all times from and after the date of
this Merger Agreement until the Effective Time, each will comply with all
covenants and provisions of this Section 5.3, except to the extent the other
party may otherwise consent in writing.
5.3.1 POOLING OF INTEREST.
(a) The merger between Summit Bancorp and FirstFederal
Financial is intended to be structured to qualify for treatment under
present accounting rules as a pooling of interests, and Summit and
FirstFederal agree to take no action which would disqualify this
treatment under GAAP.
(b) Consistent with GAAP, Summit Bancorp agrees that, on or
before the Effective Time, based on a review of Bank Subsidiary's loan
losses, current classified assets and commercial, multi-family and
residential mortgage loans, Summit will work with FirstFederal with a
goal of establishing collection procedures, internal valuation reviews,
credit policies and practices and general valuation allowances which
are consistent with guidelines used within the FirstFederal holding
company system to the extent permitted by law and consistent with the
fiduciary duties of the directors and other officers of Summit Bancorp
and Bank Subsidiary at such times as reasonably requested by
FirstFederal; provided, however, that neither Summit Bancorp nor Bank
Subsidiary shall be obligated to make any such changes or adjustments
until the following conditions have been satisfied: (i) each of the
conditions precedent to Closing specified in Articles VI and VII of
this Agreement shall have been satisfied and (ii) FirstFederal
Financial shall certify to Summit Bancorp in writing that, as of the
date as of which such request is being made, FirstFederal is aware of
no facts or circumstances which would permit FirstFederal to terminate
this Agreement pursuant to Article XI of this Merger Agreement.
FirstFederal shall provide such assistance and direction to Summit as
is necessary in conforming to such policies, practices and procedures.
(c) FirstFederal and Summit shall cooperate and use their best
efforts to identify those persons who may be deemed to be "affiliates"
of FirstFederal or Summit within the meaning of Rule 145 promulgated by
the SEC under the Securities Act and for purposes of qualifying the
Merger for "pooling of interests" accounting treatment. FirstFederal
and Summit shall use its respective best efforts to cause each person
so identified to deliver to FirstFederal or Summit, as the case may be,
no later than 30 days prior to the Effective Time, a written agreement
(which agreement shall be mutually satisfactory to counsel for
FirstFederal and Summit). Shares of FirstFederal Common Stock issued to
such FirstFederal and Summit affiliates in exchange for Summit Common
Stock or previously owned by them shall not be transferable until such
time as financial results covering at least 30 days of combined
operations of FirstFederal Financial and Summit Bancorp have been
published within the meaning of Section 201.01 of the SEC's
Codification of Financial Reporting
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Policies, regardless of whether each such affiliate has provided
the written agreement referred to in this section.
(d) FirstFederal Financial shall use its best efforts to
publish no later than ninety (90) days after the end of the first month
after the Effective Time in which there are at least thirty (30) days
of post-Merger combined operations (which month may be the month in
which the Effective Time occurs), combined sales and net income figures
as contemplated by and in accordance with the terms of SEC Accounting
Series Release No. 135.
5.3.2 PROXY STATEMENT; REGISTRATION STATEMENT. As promptly as
practicable after the date hereof, Summit and FirstFederal shall cooperate in
the preparation of the proxy statement to be mailed to the shareholders of
Summit Bancorp in connection with the Merger and the transactions contemplated
hereby and to be filed by FirstFederal Financial as part of the Registration
Statement. FirstFederal will advise Summit, promptly after it receives notice
thereof, of the time when the Registration Statement or any post-effective
amendment thereto has become effective or any supplement or amendment has been
filed, of the issuance of any stop order, of the suspension of qualification of
the FirstFederal Common Stock issuable in connection with the Merger for
offering or sale in any jurisdiction, or the initiation or threat of any
proceeding for any such purpose, or of any request by the SEC for the amendment
or supplement of the Registration Statement or for additional information.
FirstFederal shall take all actions necessary to register or qualify the shares
of FirstFederal Common Stock to be issued in the Merger pursuant to all
applicable state "blue sky" or securities laws and shall maintain such
registrations or qualifications in effect for all purposes hereof.
5.3.3 DISCLOSURE. None of the information supplied by Summit for
inclusion in the proxy statement or in the Registration Statement, will, in the
case of the proxy statement or any amendments thereof, at the time of the Summit
Bancorp shareholders' meetings or, in the case of the Registration Statement, at
the time it becomes effective and at the Effective Time, contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading.
5.3.4 APPLICATIONS. As promptly as practicable after the date hereof,
Summit and FirstFederal shall cooperate in the preparation and submission of any
requisite applications for prior approval of the transactions contemplated
herein, including applications and/or notices from the Office of Thrift
Supervision, Office of Comptroller of the Currency, Federal Reserve Board,
Department of Justice, and the Ohio Department of Commerce, Division of
Financial Institutions, as may be appropriate, and 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. FirstFederal Financial and Summit Bancorp each represents and
warrants to the other that all information concerning it and its directors,
officers, shareholders and Subsidiaries included (or submitted for inclusion) in
any such application and furnished by it shall be true, correct and complete in
all material respects. Further, each party shall provide such information and
communication as may be requested as part of such filings as promptly as
possible and shall cooperate with each other in connection with resolving any
investigation or other inquiry concerning the transactions contemplated by this
Merger Agreement commenced by any regulatory authority.
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5.3.5 MUTUAL INDEMNITY. FirstFederal Financial and Summit Bancorp shall
each indemnify and hold the other harmless for any claim, liability or expense
(including reasonable attorneys' fees) arising from a misstatement or omission
in the applications submitted to regulatory agencies for approval of the
transaction contemplated by this Merger Agreement relating to the indemnifying
party which is based or made in reliance upon any representation, warranty, or
covenant of such party in this Merger Agreement or any certification, document,
or other information furnished or to be furnished by such party pursuant to this
Merger Agreement. From and after the Closing Date, this section shall be of no
further force or effect.
5.3.6 BEST EFFORTS.
(a) FirstFederal Financial and Summit Bancorp shall each use
its best efforts in good faith, and each of them shall cause its
Subsidiaries to use their best efforts in good faith, to (i) furnish
such information as may be required in connection with the preparation
of the documents referred to in Sections 5.3.2 and 5.3.4 above, and
(ii) take or cause to be taken all action necessary or desirable on its
part so as to permit consummation of the Merger at the earliest
possible date, including, without limitation (1) obtaining the consent
or approval of each individual, partnership, corporation, association
or other business or professional entity whose consent or approval is
required for consummation of the transactions contemplated hereby,
provided that Summit Bancorp shall not agree to make any payments or
modifications to agreements in connection therewith without the prior
written consent of FirstFederal Financial, which consent shall not be
unreasonably withheld and (2) requesting the delivery of appropriate
opinions, consents and letters from its counsel and independent
auditors. No party hereto shall take or fail to take, or cause or
permit its Subsidiaries to take or fail to take, or to the best of its
ability permit to be taken or omitted to be taken by any third persons,
any action that would substantially impair the prospects of completing
the Merger pursuant to this Merger Agreement, that would materially
delay such completion, or that would adversely affect the qualification
of the Merger for pooling of interests accounting treatment or as a
reorganization within the meaning of Section 368(a) of the Code. In the
event that either party has taken any action, whether before, on or
after the date hereof, that would adversely affect such qualification,
each party shall take such action as the other party may reasonably
request to cure such effect to the extent curable without a Material
Adverse Effect on either of the parties within 30 days of such request.
(b) Summit Bancorp shall give prompt notice to FirstFederal
Financial, and FirstFederal Financial shall give prompt notice to
Summit Bancorp, of (i) the occurrence, or failure to occur, of any
event which occurrence or failure would be likely to cause any
representation or warranty contained in this Agreement to be untrue or
inaccurate in any material respect at any time from the date hereof to
the Closing Date and (ii) any material failure of FirstFederal or
Summit, as the case may be, to comply with or satisfy any covenant,
condition or agreement to be complied with or satisfied by it
hereunder, and each party shall use all reasonable efforts to remedy
such failure.
(c) Each party shall provide and shall request its auditors to
provide the other party with such historical financial information
regarding it (and related audit reports and
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consents and certificates) as the other party may reasonably request
for any securities disclosure purposes.
5.3.7 DELIVERY OF SUPPLEMENTS TO DISCLOSURE SCHEDULES. Five (5)
business days prior to the Effective Time, each party will supplement or amend
its Disclosure Schedule with respect to any matter hereafter arising which, if
existing or occurring at or prior to the date of this Merger Agreement, would
have been required to be set forth or described in such Disclosure Schedule or
which is necessary to correct any information in the Disclosure Schedule.
ARTICLE VI
----------
CONDITIONS PRECEDENT TO FIRSTFEDERAL'S PERFORMANCE
--------------------------------------------------
The obligations of FirstFederal Financial under this Merger Agreement
are subject to the satisfaction, at or before the Closing, of all the conditions
set out below in this Article VI. FirstFederal Financial may waive any or all of
these conditions in whole or in part without prior notice; provided, however,
that no such waiver of a condition shall constitute a waiver by FirstFederal
Financial of any of its other rights or remedies, at law or in equity, if Summit
Bancorp shall be in default of any of its representations, warranties, or
covenants under this Merger Agreement.
6.1 REPRESENTATIONS AND WARRANTIES TRUE. The representations and
warranties of Summit Bancorp contained in this Merger Agreement were true when
made in all material respects, and shall be true in all material respects as of
the Closing Date (after giving effect to any changes contemplated or provided
for in this Merger Agreement) with the same force and effect as if made at and
as at the time of the Closing Date, except for breaches of representations and
warranties which would not have or would not reasonably be expected to have a
Material Adverse Effect on Summit, and Summit Bancorp shall deliver at Closing a
written certification thereof.
6.2 PERFORMANCE OF SUMMIT. Summit Bancorp shall have performed,
satisfied, and complied with all covenants, agreements, and conditions required
by this Merger Agreement to be performed or complied with by it on or before the
Closing Date, except for breaches of obligations which would not have, or would
not reasonably be expected to have, any Material Adverse Effect on Summit.
6.3 NO MATERIAL CHANGES. During the period from September 30, 1996, to
the Closing Date, there shall not have been any material adverse change in the
Business or Condition of Summit, and Summit shall not have sustained any
material loss or damage to its Assets, whether or not insured, that has a
Material Adverse Effect on Summit.
6.4 CORPORATE APPROVAL. The execution and delivery of this Merger
Agreement by Summit Bancorp and the performance of its covenants and obligations
under it shall have been duly authorized by all necessary corporate and
shareholder action, and FirstFederal Financial shall have received copies of all
resolutions pertaining to that authorization certified by the Secretary of
Summit Bancorp.
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6.5 CONSENTS. All necessary agreements and consents of any parties to
the consummation of the transactions contemplated by this Merger Agreement, or
otherwise pertaining to the matters covered by it, shall have been obtained by
Summit Bancorp and delivered to FirstFederal Financial.
6.6 EMPLOYMENT AGREEMENTS. The Employment Agreements with David C.
Vernon and Jon W. Park in the form set forth in Exhibits A-1 and A-2, dated the
Closing Date, shall have been executed and delivered by the parties as called
for therein.
6.7 OPINION OF COUNSEL. FirstFederal Financial shall have received the
opinion of Brouse & McDowell, counsel to Summit, dated the Closing Date,
substantially in the form and to the effect of Exhibit E hereto, and to such
further effect as FirstFederal Financial may reasonably request.
6.8 FIRSTFEDERAL'S DUE DILIGENCE. Based upon FirstFederal's due
diligence from the date of the execution of this Merger Agreement to the Closing
Date, FirstFederal has not discovered any material misrepresentation or breach
of warranty or any other matters not adequately disclosed on the Disclosure
Schedule, that would have a Material Adverse Effect on Summit.
6.9 REGULATORY APPROVAL.
(a) FirstFederal shall have received all regulatory approvals required
or deemed necessary in connection with the transactions contemplated by this
Merger Agreement, all notice periods and waiting periods required after the
granting of any such approvals shall have passed and all conditions contained in
any such approval required to have been satisfied prior to consummation of such
transactions shall have been satisfied, provided, however, that no such approval
shall have imposed any condition or requirement which, in the reasonable opinion
of the Board of Directors of FirstFederal Financial so materially and adversely
affects the anticipated economic and business benefits to FirstFederal, of the
transactions contemplated by this Agreement as to render consummation of such
transaction inadvisable;
(b) The Registration Statement (including any post-effective amendment
thereto) shall be effective under the Securities Act, and no proceeding shall be
pending or to the knowledge of FirstFederal threatened by the SEC to suspend the
effectiveness of such Registration Statement, and FirstFederal shall have
received all state securities or "Blue Sky" permits or other authorizations, or
confirmations as to the availability of an exemption from registration
requirements as may be necessary.
6.10 POOLING OF INTEREST. FirstFederal Financial shall have received a
letter from KPMG Peat Marwick, LLP, FirstFederal Financial's independent public
accountants, to the effect that the Merger will qualify for pooling of interest
accounting treatment.
6.11 ACCOUNTANT'S LETTERS. FirstFederal Financial shall have received
from Crowe, Chizek and Company letters dated not more than five days prior to
(i) the effective date of the Registration Statement and (ii) the Closing Date,
with respect to certain financial information regarding Summit, each in form and
substance which is customary in transactions of the nature contemplated by this
Agreement.
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<PAGE> 52
6.12 BANK SUBSIDIARY BOARD OF DIRECTORS. Bank Subsidiary's Board of
Directors will appoint to the Bank Subsidiary's Board of Directors at the
Effective Time two individuals to be recommended by FirstFederal Financial but
subject to the approval of the Bank Subsidiary's Board of Directors.
6.13 OFFICER'S CERTIFICATES. Summit Bancorp shall deliver at Closing an
officer's certificate to the effect that all conditions precedent to
FirstFederal Financial's performance have been met or waived and that all action
required to be taken by Summit to consummate the transactions contemplated
herein has been taken.
ARTICLE VII
-----------
CONDITIONS TO OBLIGATIONS OF SUMMIT
-----------------------------------
The obligations of Summit Bancorp hereunder are subject to the
fulfillment, at or before the Closing, of each of the following conditions (all
or any of which may be waived in whole or in part by Summit Bancorp in its sole
discretion):
7.1 FIRSTFEDERAL'S WARRANTIES. All representations and warranties by
FirstFederal Financial contained in this Merger Agreement or in any written
statement delivered by FirstFederal Financial under this Merger Agreement shall
be true in all material respects on and as of the Closing as though such
representations and warranties were made on and as of that date, except for
breaches of representations and warranties which would not or would not
reasonably be expected to have a Material Adverse Effect on FirstFederal.
7.2 FIRSTFEDERAL'S PERFORMANCE. FirstFederal Financial shall have
performed and complied with all covenants and agreements, satisfied all
conditions that it is required by this Merger Agreement to perform, comply with,
or satisfy, before or at the Closing Date, except for breaches of obligations
which would not have, or would not reasonably be expected to have, any Material
Adverse Effect on FirstFederal.
7.3 OPINION OF FIRSTFEDERAL'S COUNSEL. FirstFederal Financial shall
have furnished Summit Bancorp with an opinion, dated the Closing Date, of
Critchfield, Critchfield & Johnston, Ltd., counsel for FirstFederal, in form and
substance as set forth in Exhibit F.
7.4 CORPORATE APPROVAL. The Board of Directors of FirstFederal
Financial shall have duly authorized and approved the execution and delivery of
this Merger Agreement and all corporate action necessary or proper to fulfill
the obligations of FirstFederal Financial to be performed under this Merger
Agreement on or before the Closing Date.
7.5 EMPLOYMENT AGREEMENTS. The Employment Agreement with Jon W. Park
in the form set forth in Exhibit A-2 dated the Closing Date, shall have been
executed and delivered by FirstFederal Financial.
7.6 FIRSTFEDERAL BOARD OF DIRECTORS. FirstFederal Financial's Board of
Directors will appoint or nominate to the FirstFederal Financial Board of
Directors at the Effective Time, David C. Vernon.
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<PAGE> 53
7.7 FAIRNESS OPINION. Summit Bancorp shall have received from McDonald
a written fairness opinion, dated on or about the date on which the proxy
statement is distributed to Summit Bancorp's stockholders, to the effect that
the Exchange Ratio is fair to Summit Bancorp's stockholders from a financial
point of view.
ARTICLE VIII
------------
THE CLOSING
-----------
8.1 TIME AND PLACE. The Closing shall occur at 10:00 a.m. at the
offices of Critchfield, Critchfield & Johnston, as promptly as practicable after
the date on which all of the conditions set forth in Articles VI and VII are
satisfied or duly waived, or at such other time and place and on such other date
as the parties hereto may agree.
8.2 CLOSING ESCROW. All documents to be delivered by Summit Bancorp
shall be delivered to counsel for FirstFederal in escrow and such documents
shall not be released by counsel for FirstFederal until receiving written
authorization from counsel for Summit. All documents to be delivered by
FirstFederal Financial to Summit shall be delivered to counsel for Summit in
escrow and not be released by counsel for Summit until receiving written
authority from counsel for FirstFederal.
ARTICLE IX
----------
COSTS AND PUBLICITY
-------------------
9.1 EXPENSES. Each of the parties shall pay all costs and expenses
incurred or to be incurred by it in negotiation and preparation of this Merger
Agreement and in closing and carrying out the transactions contemplated by this
Merger Agreement provided that Summit shall not incur any such costs and
expenses in excess of $150,000 in the aggregate; excluding therefrom the fee
payable to McDonald as more fully disclosed in Section 3.23 hereof.
9.2 PUBLICITY. All notices to third parties, employees of Summit and
FirstFederal and all other publicity concerning the transactions contemplated by
this Merger Agreement shall be jointly planned and coordinated by and between
FirstFederal Financial and Summit Bancorp. None of the parties shall act
unilaterally in this regard without the prior written approval of the others;
however, this approval shall not be unreasonably withheld.
ARTICLE X
---------
FORM OF AGREEMENT AND PARTIES
-----------------------------
10.1 HEADINGS. The subject headings of the paragraphs and subparagraphs
of this Merger Agreement are included for purposes of convenience only, and
shall not affect the construction or interpretation of any of its provisions.
10.2 MODIFICATION AND WAIVER. This Merger Agreement constitutes the
entire agreement between the parties pertaining to the subject matter hereof and
supersedes all prior and contemporaneous agreements, representations, and
understandings of the parties. No supplement,
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<PAGE> 54
modification, or amendment of this Merger Agreement shall be binding unless
executed in writing by all the parties. No waiver of any of the provisions of
this Merger Agreement shall be deemed, or shall constitute, a waiver of any
other provision, whether or not similar, nor shall any waiver constitute a
continuing waiver. No waiver shall be binding unless executed in writing by the
party making the waiver.
10.3 COUNTERPARTS. This Merger Agreement may be executed simultaneously
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.
10.4 RIGHTS OF PARTIES. Nothing in this Merger Agreement, whether
express or implied, is intended to confer any rights or remedies under or by
reason of this Merger Agreement on any persons other than the parties to it and
their respective successors and assigns, nor is anything in this Merger
Agreement intended to relieve or discharge the obligation or liability of any
third persons to any party to this Merger Agreement, nor shall any provision
give any third persons any right of subrogation or action over or against any
party to this Merger Agreement.
10.5 ASSIGNMENT. Neither Summit Bancorp nor FirstFederal Financial
may assign its rights or obligations under this Merger Agreement.
ARTICLE XI
----------
TERMINATION
-----------
11.1 TERMINATION. This Merger Agreement may be terminated, and the
transactions contemplated hereby may be abandoned:
(a) By the vote of a majority of the Board of Directors of
each of FirstFederal and Summit;
(b) By the vote of a majority of the Board of Directors of
either FirstFederal or Summit if the Merger shall not have been
consummated on or before July 31, 1997, unless the failure to
consummate by such date is related to the action or inaction of the
regulatory authorities, and such action or inaction is not directly
related to either FirstFederal's or Summit's breach of their respective
obligations under Articles III and IV;
(c) By the vote of a majority of the Board of Directors of
either FirstFederal or Summit if any regulatory agency has denied
approval of the Merger and neither Summit nor FirstFederal has timely
filed a request for a reconsideration or a petition seeking review of
such order;
(d) At any time before the Closing, by Summit, in the event of
the occurrence of a Material Adverse Impact of FirstFederal if
FirstFederal fails to cure such Material Adverse Impact thirty (30)
days following notification thereof by Summit;
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(e) At any time before the Closing, by FirstFederal, in the
event of the occurrence of a Material Adverse Impact of Summit if
Summit fails to cure such Material Adverse Impact within thirty (30)
days following notification thereof by FirstFederal;
(f) At any time after September 30, 1997, by Summit or
FirstFederal, upon notification of the non-terminating party by the
terminating party if the Closing shall not have occurred on or before
such date and such failure to consummate is not caused by a breach of
this Merger Agreement by the terminating party;
(g) By either party if any bona fide action or proceeding
shall be pending against either party on the Closing Date that could
result in an unfavorable judgment, decree, or order that would prevent
or make unlawful the carrying out of this Merger Agreement;
(h) By FirstFederal after Regulatory Approval if the
conditions precedent to FirstFederal's obligation to close as contained
in Article VI have not been satisfied or waived;
(i) By Summit after Regulatory Approval if the conditions
precedent to Summit's obligation to close as contained in Article VII
have not been satisfied or waived;
(j) By Summit if all of the following occur: (i) the
FirstFederal Share Price Change is greater than 15%; (ii) the
FirstFederal Share Price Change is greater than the SNL Share Price
Change by more than .1%; and (iii) the FirstFederal Share Price Change
is a positive number.
11.2 EFFECT OF TERMINATION. If this Merger Agreement is validly
terminated pursuant to Section 11.1, this Merger Agreement will forthwith become
null and void, and there will be no liability or obligation on the part of
Summit or FirstFederal (or any of their respective officers, directors,
employees, agents or other representatives of Affiliates), except as provided in
the next succeeding sentence and except that the provisions of the
Confidentiality Agreements entered into by Summit and FirstFederal on December
13, 1996, and November 27, 1996, respectively, will continue to apply following
any such termination. Notwithstanding any other provision in this Merger
Agreement to the contrary, upon termination of this Merger Agreement pursuant to
Section 11.1, Summit will remain liable to FirstFederal for any breach of this
Merger Agreement by Summit existing at the time of such termination, and
FirstFederal will remain liable to Summit for any breach of this Merger
Agreement by FirstFederal existing at the time of such termination, and Summit
or FirstFederal may seek such remedies, including damages, and fees of attorneys
and investment bankers, against the other with respect to any such breach as are
provided in this Merger Agreement or as are otherwise available at law or in
equity.
ARTICLE XII
-----------
MISCELLANEOUS
-------------
12.1 NOTICES. All notices, requests and other communications hereunder
must be in writing and will be deemed to have been duly given only if delivered
personally or by facsimile transmission or mailed (first class postage prepaid)
to the parties at the following addresses or facsimile numbers:
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<PAGE> 56
If to FirstFederal, to:
FirstFederal Financial Services Corp
135 E. Liberty St.
Wooster, OH 44691
Facsimile No.: (216) 262-1057
Attn: Gary G. Clark, Chief Executive Officer
with a copy to:
Critchfield, Critchfield & Johnston, Ltd.
225 N. Market Street
Wooster, OH 44691
Facsimile No.: (216) 263-9278
Attn: Daniel H. Plumly
If to Summit, to:
Summit Bancorp
2680 West Market Street
Akron, OH 44333
Attn: David C. Vernon
with a copy to:
Brouse & McDowell
500 First National Tower
Akron, OH 44308-1471
Facsimile No.: (330) 253-8601
Attn: Jerry F. Whitmer
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmissions to the facsimile number
as provided in this Section, be deemed given after receipt of confirmation of
such transmission, and (iii) if delivered by mail in the manner described above
to the address as provided in this Section, be deemed given within three days
following the mailing thereof. Any party from time to time may change its
address, facsimile number or other information for the purpose of notices to
that party by giving notice specifying such change to the other party hereto.
12.2 ENTIRE AGREEMENT. This Merger Agreement supersedes all prior
discussions and agreements between the parties with respect to the subject
matter hereof and thereof, including without limitation that certain letter of
interest from FirstFederal Financial to Summit Bancorp dated December 4, 1996,
and contains the sole and entire agreement between the parties hereto with
respect to the subject matter hereof and thereof.
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12.3 COSTS. If any legal action or other proceeding is brought for
the enforcement of this Merger Agreement, or because of an alleged dispute,
breach, default, or misrepresentation in connection with any of the provisions
of this Merger Agreement, the successful or prevailing party or parties shall be
entitled to recover reasonable attorneys' fees and other costs incurred in that
action or proceeding, in addition to any other relief to which it or they may be
entitled.
12.4 FAIR INTERPRETATION. Every covenant, term, and provision of
this Merger Agreement shall be construed simply according to its fair meaning
and not strictly for or against either party.
12.5 SEVERABILITY. Every provision of this Merger Agreement is
intended to be severable. If any term or provision thereof is illegal or invalid
for any reason whatsoever, such illegality or invalidity shall not affect the
validity or legality of the remainder of this Merger Agreement.
12.6 EFFECT OF CLOSING. No representations, warranties, covenants,
and agreements of the parties contained in this Merger Agreement shall survive
the Closing.
12.7 GOVERNING LAW. This Merger Agreement shall be governed by and
construed in accordance with the laws of the State of Ohio.
[Balance of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, this Merger Agreement has been duly executed and
delivered by the duly authorized officer of each party hereto as of the date
first above written.
FIRSTFEDERAL FINANCIAL SERVICES
CORP
By /s/ Gary G. Clark
------------------------------------
Name: Gary G. Clark
Title: Chief Executive Officer
SUMMIT BANCORP
By /s/ David C. Vernon
------------------------------------
Name: David C. Vernon
Title: Chairman of the Board,
President and Chief Executive
Officer
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<PAGE> 59
EXHIBIT A-1
-----------
EMPLOYMENT AGREEMENT
--------------------
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into this ___
day of ______________, 1997, by and between SUMMIT BANK, a bank chartered under
the laws of the State of Ohio ("Summit"), a subsidiary of FirstFederal Financial
Services Corp (the "Company"), and DAVID C. VERNON (the "Executive"), effective
for all purposes and in all respects at the Closing as such term is defined in
the Agreement of Affiliation and Plan of Merger dated December __, 1996, by and
between the Company and Summit Bancorp (the "Merger Agreement").
WHEREAS, prior to Closing, Executive was Chairman of the Board, Chief
Executive Officer, President, and a member of the Board of Directors of Summit;
WHEREAS, as a result of the Merger Agreement, Company is acquiring all
of the issued and outstanding capital stock of Summit;
WHEREAS, Executive has unique talents and experience which are of value
to Summit;
WHEREAS, Summit desires to employ Executive in the capacity of Chairman
of the Board, Chief Executive Officer, and President of Summit on and after the
Closing on the terms and conditions set forth herein;
WHEREAS, Executive desires to be employed by Summit in the aforesaid
capacity; and
WHEREAS, Executive and Summit desire to set forth in writing the terms
and conditions of their agreements and understandings.
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein and of other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties intending to be legally bound, agree as follows:
1. TERM. The term of this Agreement shall be a period of five (5) years
commencing on the Closing Date (the "Commencement Date"), subject to earlier
termination as provided herein. Beginning on the fifth anniversary of the
Commencement Date, and on each anniversary thereafter, the term of this
Agreement shall be extended for a period of one year, PROVIDED THAT neither the
Executive nor Summit has given notice to the other in writing at least 90 days
prior to such anniversary that the term of this Agreement shall not be extended
further. Reference herein to the term of this Agreement shall refer to both such
initial term and such extended terms.
2. EMPLOYMENT. The Executive is employed as the Chairman of the Board,
Chief Executive Officer, and President of Summit. As Chairman of the Board,
Chief Executive Officer, and President, Executive shall render administrative
and management services as are customarily performed by persons situated in
similar executive capacities, including but not limited to such duties
<PAGE> 60
and responsibilities as set forth in Exhibit A, and shall have such other powers
and duties of an officer of Summit as the Board of Directors may prescribe from
time to time. The Executive shall continue to devote his best efforts and all
his business time and attention to the business and affairs of Summit. During
the Executive's employment with Summit, the Executive shall not engage in any
activity which conflicts or interferes with the performance of the duties
hereunder or usurps the business interest, existing or potential, of Summit.
3. COMPENSATION.
(a) SALARY. Summit agrees to pay the Executive during the term of this
Agreement an annual base salary of One Hundred Thirty Thousand Dollars
($130,000.00) ("Base Salary"). The base salary shall be paid in accordance with
Summit's standard pay practices and shall be subject to all local, state, and
federal withholding requirements. The Base Salary may be raised from time to
time within the sound discretion of the Board of Directors.
(b) DISCRETIONARY BONUSES. The Executive shall be entitled to
discretionary bonuses as authorized and declared by the Company's Board of
Directors to its executives up to 20% of the Executive's Base Salary, subject to
such terms and conditions set forth in the Management Incentive Compensation
Plan.
(c) EXPENSES. The Executive shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by the Executive in
performing services under this Agreement in accordance with the policies and
procedures applicable to the executive officers of the Company and Summit,
PROVIDED THAT the Executive properly accounts for such expenses in accordance
with such policies and procedures.
(d) NONCOMPETITION PAYMENT. In partial consideration for the execution
of this Agreement, the Executive agrees to the noncompetition provisions set
forth in Section 7 hereof.
4. BENEFITS.
(a) PARTICIPATION IN RETIREMENT AND EXECUTIVE BENEFIT PLANS. The
Executive shall be entitled to participate in all plans relating to stock
options (at a minimum level of 5,000 option shares for the first year of this
Agreement; and thereafter as the Company's Stock Option Committee shall
determine), thrift, profit-sharing, group life insurance, medical and dental
coverage, education, and other retirement or employee benefits or combinations
thereof ("Plans") that are now or hereafter maintained for the benefit of
Summit's executive employees or its employees generally, provided that the
Executive meets all eligibility requirements of such Plans and subject to the
integration of such Plans into the Company's plans.
(b) FRINGE BENEFITS. The Executive shall be eligible to participate in,
and receive benefits under, any other fringe benefit plans which are or may
become applicable to Summit's executive officers specifically including but not
limited to a car allowance in an amount not in excess of $600 per month.
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(c) MEMBERSHIPS. Summit shall pay dues on behalf of Executive for
memberships in Firestone Country Club and Fairlawn Country Club. Executive shall
be responsible for all personal expenses incurred in connection with such
memberships.
5. VACATIONS; LEAVE. The Executive shall be entitled to annual paid
vacation in accordance with the policies established by Company's Board of
Directors for executive employees and to voluntary leave of absence, with or
without pay, from time to time at such times and upon such conditions as the
Board of Directors of Company may determine in its discretion.
6. TERMINATION OF EMPLOYMENT.
(a) INVOLUNTARY TERMINATION. The Summit Board of Directors may
terminate the Executive's employment at any time, but, except in the case of
Termination for Cause, termination of employment shall not prejudice the
Executive's right to compensation or other benefits under this Agreement. In the
event of Involuntary Termination, Summit shall pay to the Executive during the
remaining term of this Agreement, his Base Salary at the rate in effect
immediately prior to the Date of Termination, payable in such manner and at such
times as such salary would have been payable to the Executive under Section 1 if
the Executive had continued to be employed by Summit.
(b) TERMINATION FOR CAUSE. In the event of Termination for Cause,
Summit shall pay the Executive his salary through the Date of Termination, and
Summit shall have no further obligation to the Executive under this Agreement.
(c) DEATH; DISABILITY. In the event of the death of the Executive while
employed under this Agreement and prior to any termination of employment, the
Executive's estate, or such person as the Executive may have previously
designated in writing, shall be entitled to receive from Summit the salary of
the Executive through the last day of the calendar month in which the Executive
died. If the Executive becomes disabled as defined in Summit's then current
disability plan or if the Executive is otherwise unable to serve as Chairman of
the Board, Chief Executive Officer, or President, the Executive shall be
entitled to receive group and other disability income benefits of the type then
provided by Summit for executive officers.
7. NONCOMPETITION.
(a) Executive covenants and agrees that:
(i) Executive shall not, in the Market Area (as defined
below), directly or indirectly, for a period commencing on the closing
Date and terminating on the date three years if Executive is Terminated
for Cause or voluntarily terminates his employment or two years if
Executive is involuntarily terminated following the Date of Termination
(the "Restricted Period"), for whatever reason, directly or indirectly,
whether as shareholder, partner, employee, officer, joint venturer, or
agent of any person, firm or corporation or other entity or otherwise,
engage in any or all of the following activities:
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<PAGE> 62
(a) Enter into or engage in any business which directly or
indirectly competes with the business of Summit;
(b) Interfere or attempt to interfere with the business,
goodwill, trade, customers or employees of Summit or with any one
dealing with Summit in the operation of Summit's business;
(c) Solicit borrowers' and depositors' business, patronage, or
perform any services for, any business which directly or indirectly
competes with the business carried on by Summit;
(d) Promote or assist, financially or otherwise, any person,
firm, association or corporation engaged in any business which directly
or indirectly competes with the business carried on by Summit.
(ii) During the Restricted Period, the Executive shall not,
directly or indirectly, knowingly solicit or encourage to leave the
employment of Company or Summit, any employee of Summit or hire any
employee who has left the employment of Summit after the date of this
Agreement within one year of the termination of such employee's
employment with Summit or such shorter period as shall be agreed by
Summit in writing.
(b) If the Executive violates this restrictive covenant and Summit
brings legal action for injunctive or other relief, Summit shall not as a result
of the time involved in obtaining the relief be deprived of the benefit of the
full period of the restrictive covenant. Accordingly, the restrictive covenant
shall be deemed to have the duration specified herein, computed from the date
the relief is granted, but reduced by the time between the period when the
restriction began to run and the date of the first violation of the covenant by
Executive.
If any court shall determine that the duration or geographical limit of
any restriction contained in this paragraph is unenforceable, it is the
intention of the parties that the restrictive covenant set forth herein shall
not thereby be permitted to be terminated but shall be deemed amended to the
extent required to render it valid and enforceable. Such amendment shall apply
only with respect to the operation of this paragraph and the jurisdiction of the
court that has made the adjudication.
(c) If any court determines that any provision of this Section, or any
part thereof, is invalid or unenforceable, the remainder of the provisions of
this Section shall not thereby be affected and shall be given full effect,
without regard to the invalid portions.
(d) If any court determines that any of the provisions of this Section,
or any part thereof, is unenforceable because of the duration of such provision
or the area covered thereby, such court shall have the power to reduce the
duration or area of such provisions and, in its reduced form, such provision
shall then be enforceable and shall be enforced.
8. DISCLOSURE OF INFORMATION. The Executive acknowledges that in and as
a result of his employment hereunder, he will be making use of, acquiring and/or
adding to confidential information
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<PAGE> 63
of a special and unique nature and value relating to such matters as Summit's
and its affiliated companies' trade secrets, systems, procedures, manuals,
confidential reports, and lists of customers. As a material inducement to Summit
to enter into this Agreement and for Summit to pay Executive compensation stated
in Section 3, as well as any additional benefits provided for herein, Executive
covenants and agrees that he shall not at any time during or following the term
of his employment, directly or indirectly divulge or disclose for any purpose
whatsoever any confidential information that has been obtained by or disclosed
to him as the result of employment by Summit heretofore or hereafter, except
that there shall be no breach of this Section so long as Executive is acting in
good faith and there is no material harm to Summit; provided, however, that this
duty of confidentiality shall not apply to information which is on the date
hereof generally known to the public or which is subsequently made public by an
individual authorized to do so.
9. SURRENDER OF BOOKS AND RECORDS. Executive acknowledges that all
files, books, records, literature, products, and other materials owned by Summit
or its affiliates or used by it in connection with the conduct of its business
shall at all times remain the property of Summit and that upon termination of
the employment hereunder, irrespective of the time, manner, or cause of said
termination, Executive will surrender to Summit all such files, books, records,
literature, products, and other materials, other than such personal effects not
related to the operation of the business.
10. NO ASSIGNMENTS.
(a) This Agreement is personal to each of the parties hereto, and
neither party may assign or delegate any of its rights or obligations hereunder
without first obtaining the written consent of the other party.
(b) This Agreement and all rights of the Executive hereunder shall
inure to the benefit of and be enforceable by the Executive's personal and legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees.
11. REMEDIES. It is recognized by Executive that a special and
confidential relationship exists between Summit and Executive because of his
knowledge, expertise and judgment and the dependence of Summit upon his
knowledge, expertise and judgment. Executive agrees that the remedy at law for
any breach of threatened breach of the covenants set forth in paragraphs 7, 8
and 9 hereof will be inadequate and that any breach or attempted breach of such
covenants would cause such immediate and permanent damage as would be
irreparable and the exact amount of which would be impossible to ascertain.
Executive further agrees that in the event of any such breach or threatened
breach of such covenants by Executive, in addition to any and all other legal
and equitable remedies available, Summit may have any of such actions enjoined
by any court authorized by law to take such action. Executive acknowledges and
agrees that the limitations contained in paragraphs 7, 8 and 9 hereof are
reasonable and properly required for the adequate protection of Summit.
12. NOTICE. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when personally delivered or sent by certified
mail, return receipt requested, postage prepaid, to Summit at its home office,
to the attention of the Board of Directors with a copy to the secretary of
Summit,
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or, if to the Executive, to such home or other address as the Executive has most
recently provided, in writing to Summit.
13. AMENDMENTS. No amendments or additions to this Agreement shall be
binding unless in writing and signed by both parties, except as herein otherwise
provided.
14. HEADINGS. The headings used in this Agreement are included solely
for convenience and shall not affect, or be used in connection with, the
interpretation of this Agreement.
15. SEVERABILITY. The provisions of this Agreement shall be deemed
severable and the invalidity and unenforceability of any provisions shall not
affect the validity or enforceability of the other provisions hereof.
16. GOVERNING LAW. This Agreement shall be governed by and is to be
construed and enforced in accordance with the laws of the State of Ohio.
17. ARBITRATION. Any dispute or controversy arising hereunder or in
connection with this Agreement shall be finally and conclusively determined by
the decision of a board of arbitration consisting of three members (hereinafter
sometimes called the "Board of Arbitration") collected as hereinafter provided.
Both Summit and Executive shall select one member and the third member shall be
selected by mutual agreement of the other members, or if the other members fail
to reach an agreement on a third member within 20 days after their selection,
the third member shall thereafter be selected by the American Arbitration
Association upon application made to it for such purpose by Summit. The Board
of Arbitration shall meet in Wooster, Ohio, or in such other place as the
majority of the members of the Board of Arbitration determines more appropriate
and shall reach and render a decision in writing (concurred in by a majority by
the members of the Board of Arbitration) with respect to the resolution of the
dispute or controversy. In connection with rendering its decision, the Board of
Arbitration shall adopt and follow such rules and procedures, except with
regard to discovery matters, as a majority of the members of the Board of
Arbitration deem necessary or appropriate. Arbitration discovery shall be that
discovery allowed by Ohio Rules of Civil Procedure (Rule 5) as amended
and modified by the parties herein permitting discovery by deposition,
interrogatories, requests for admission, and production of documents, which
Rules are incorporated by reference herein, but shall be modified in their
application as follows: (i) depositions shall be limited to: the adversary (or
in case of a corporation or other entity to two agents thereof who may be
required to be identified as competent for the discovery purpose); other third
party witnesses whose discovery may lead to relevant evidence for the
preparation of the arbitration; other third party witnesses whose testimony
reasonably needs to be perpetuated, including witnesses who by affidavit, state
that they cannot be available for the hearing. Depositions of third party
witnesses shall be limited to three; (ii) request for production of documents
shall be limited to one set of relevant and reasonable requests and to such
supplemental requests as may be reasonably required from information produced;
(iii) each side shall be permitted one set of interrogatories and request for
admissions, each consisting of no more than thirty (30) items including
sub-parts; (iv) the limitations contained herein on the number of depositions,
requests for production of documents, interrogatories and requests for
admissions may be modified by a majority of the members of the Board of
Arbitration upon motion of a party; (v) all discovery disputes shall be
resolved by the Arbitrator
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whose decision shall be final, except as below provided, in any post-award
proceeding under O.R.C. Chapter 2711, the court may consider as an additional
ground for vacating or modifying the award an Arbitration Discovery decision
involving a gross abuse of discretion, the arbitrator and/or the court shall
also be empowered to impose costs, expenses (excluding attorney's fees) and
sanctions as provided in the Rules of Civil Procedure against any party for
failure to comply with the Arbitration Discovery, and to base such imposition on
the same criteria used by the courts in similar circumstances. To the extent
practical, decisions of the Board of Arbitration shall be rendered no more than
30 calendar days following commencement of proceedings with respect thereto. The
Board of Arbitration shall cause its written decision made by the Board of
Arbitration (either prior to or after the expiration of such 30 calendar day
period) shall be final, binding and conclusive on Summit and Executive and
entitled to be enforced to the fullest extent permitted by law and entered in
any court of competent jurisdiction. The party against whom any decision is
rendered by the Board of Arbitration shall pay (i) its own expenses in relation
to any arbitration, including but not limited to such party's attorneys' fees,
(ii) the expenses and fees of the Board of Arbitration, and (iii) all expenses,
including but not limited to attorneys' fees, of the prevailing party to any
such arbitration. Notwithstanding anything in this Agreement to the contrary,
nothing in this Agreement shall restrict or prohibit any party to any
arbitration under this Section from obtaining injunctive relief in connection
with any claim hereunder.
18. OTHER AGREEMENTS. At the Effective Time (as defined in the Merger
Agreement), all agreements by and between Executive and Summit Bancorp and/or
Summit Bank except the Salary Continuation Agreement dated July 15, 1993, shall
terminate and be null and void, including but not limited to: Summit Bancorp
Termination Agreement. At the Effective Time, this Agreement shall constitute
the sole agreement for employment for Executive.
19. DEFINITIONS.
(a) The term "Date of Termination" means the earlier of (1) the date
upon which Summit gives notice to the Executive of the termination of his
employment with Summit or (2) the date upon which the Executive ceases to serve
as an employee of Summit.
(b) The term "Involuntary Termination" means the termination of the
employment of Executive without his express written consent, and shall include a
material diminution of or interference with the Executive's duties,
responsibilities and benefits as Chairman of the Board, Chief Executive Officer,
and President of Summit, including (without limitation) any of the
following actions unless consented to in writing by the Executive; (1) a change
in the principal workplace of the Executive to a location outside of a 60 mile
radius from Summit's headquarters office as of the date hereof; (2) a material
demotion of the Executive; (3) a material reduction in the number or seniority
of other Summit personnel reporting to the Executive or a material reduction in
the frequency with which, or in the nature of the matters with respect to which,
such personnel are to report to the Executive, other than as part of an
Summit-wide reduction in staff; (4) a material adverse change in the Executive's
salary, perquisites, benefits, contingent benefits or vacation, other than as
part of an overall program applied uniformly and with equitable effect to all
members of the senior management of Summit or the Company; and (5) a material
permanent increase in the required hours of work or the workload of the
Executive. The term "Involuntary Termination" does not
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<PAGE> 66
include Termination for Cause or termination of employment due to retirement,
death, disability or suspension.
(c) The terms "Termination for Cause" and "Terminated for Cause" mean
termination of the employment of the Executive because of the Executive's gross
negligence, unethical behavior, or any other acts which subject Summit to civil
or criminal liability.
(d) The term "Market Area" means any county in any state in which
Company or any of Company's subsidiaries maintains an office.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE
ENFORCED BY THE PARTIES.
SUMMIT BANK
By
--------------------------------
Name:
Title:
EXECUTIVE:
-----------------------------------
David C. Vernon
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<PAGE> 67
EXHIBIT A
---------
To be provided by Executive
-9-
<PAGE> 68
EXHIBIT A-2
-----------
EMPLOYMENT AGREEMENT
--------------------
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into this ___
day of _______________, 1997, by and between FIRSTFEDERAL FINANCIAL SERVICES
CORP (the "Company"), and JON W. PARK (the "Executive"), effective for all
purposes and in all respects at the Closing as such term is defined in the
Agreement of Affiliation and Plan of Merger dated December __, 1996, by and
between the Company and Summit Bancorp (the "Merger Agreement").
WHEREAS, prior to Closing, Executive was Vice President and Chief
Financial Officer of Summit Bank and party to certain agreements which shall
terminate upon the Closing of the Merger Agreement;
WHEREAS, as a result of the Merger Agreement, Company is acquiring all
of the issued and outstanding capital stock of Summit Bank;
WHEREAS, Executive has unique talents and experience;
WHEREAS, Company desires to employ Executive in the capacity of
Treasurer of Company on and after the Closing on the terms and conditions set
forth herein;
WHEREAS, Executive desires to be employed by Company in the aforesaid
capacity; and
WHEREAS, Executive and Company desire to set forth in writing the terms
and conditions of their agreements and understandings.
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein and of other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties intending to be legally bound, agree as follows:
1. TERM. The term of this Agreement shall be a period of two (2) years
commencing on the Closing Date (the "Commencement Date"), subject to earlier
termination as provided herein. Beginning on the second anniversary of the
Commencement Date, and on each anniversary thereafter, the term of this
Agreement shall be extended for a period of one year, PROVIDED THAT neither the
Executive nor Company has given notice to the other in writing at least 90 days
prior to such anniversary that the term of this Agreement shall not be extended
further. Reference herein to the term of this Agreement shall refer to both such
initial term and such extended terms.
2. EMPLOYMENT. The Executive is employed as the Treasurer of Company.
As Treasurer, Executive shall render administrative and management services as
are customarily
<PAGE> 69
performed by persons situated in similar executive capacities, including but not
limited to such duties and responsibilities as set forth in Exhibit A attached
hereto and incorporated hereby by reference, and shall have such other powers
and duties as the Chief Executive Officer of the Company may prescribe from time
to time. The Executive shall devote his best efforts and all his business time
and attention to the business and affairs of Company.
3. COMPENSATION.
(a) SALARY. Company agrees to pay the Executive during the term of this
Agreement an annual base salary of Seventy Seven Thousand Dollars ($77,000.00).
The base salary shall be paid in accordance with Company's standard pay
practices and shall be subject to all local, state, and federal withholding
requirements.
(b) DISCRETIONARY BONUSES. The Executive shall be entitled to
discretionary bonuses as authorized and declared by the Company's Board of
Directors to its executives up to 15% of the Executive's Base Salary, subject to
such terms and conditions set forth in the Management Incentive Compensation
Plan.
(c) EXPENSES. The Executive shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by the Executive in
performing services under this Agreement in accordance with the policies and
procedures applicable to the executive officers of the Company and First Federal
Savings and Loan Association of Wooster, PROVIDED THAT the Executive properly
accounts for such expenses in accordance with such policies and procedures.
(d) NONCOMPETITION PAYMENT. In partial consideration for the execution
of this Agreement, the Executive agrees to the noncompetition provisions set
forth in Section 7 hereof.
4. BENEFITS.
(a) PARTICIPATION IN RETIREMENT AND EXECUTIVE BENEFIT PLANS. The
Executive shall be entitled to participate in all plans relating to stock
options (at a minimum level of 2,000 shares for the first year of this
Agreement; and thereafter as the Company's Stock Option Committee shall
determine), thrift, profit-sharing, group life insurance, medical and dental
coverage, education, and other retirement or employee benefits or combinations
thereof ("Plans") that are now or hereafter maintained for the benefit of First
Federal Savings and Loan Association of Wooster's executive employees or its
employees generally, provided that the Executive meets all eligibility
requirements of such Plans.
(b) FRINGE BENEFITS. The Executive shall be eligible to participate in,
and receive benefits under, any other fringe benefit plans which are or may
become applicable to Company's or First Federal Savings and Loan Association of
Wooster's executive officers.
5. VACATIONS; LEAVE. The Executive shall be entitled to annual paid
vacation in accordance with the policies established by Company's Board of
Directors for executive employees
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<PAGE> 70
and to voluntary leave of absence, with or without pay, from time to time at
such times and upon such conditions as the Treasurer of Company may determine in
his discretion.
6. TERMINATION OF EMPLOYMENT.
(a) INVOLUNTARY TERMINATION. The Board of Directors may terminate the
Executive's employment at any time, but, except in the case of Termination for
Cause, termination of employment shall not prejudice the Executive's right to
compensation or other benefits under this Agreement. In the event of Involuntary
Termination, Company shall pay to the Executive during the remaining term of
this Agreement, his salary at the rate in effect immediately prior to the Date
of Termination, payable in such manner and at such times as such salary would
have been payable to the Executive under Section 1 if the Executive had
continued to be employed by Company.
(b) TERMINATION FOR CAUSE. In the event of Termination for Cause,
Company shall pay the Executive his salary through the Date of Termination, and
Company shall have no further obligation to the Executive under this Agreement.
(c) DEATH; DISABILITY. In the event of the death of the Executive while
employed under this Agreement and prior to any termination of employment, the
Executive's estate, or such person as the Executive may have previously
designated in writing, shall be entitled to receive from Company the salary of
the Executive through the last day of the calendar month in which the Executive
died. If the Executive becomes disabled as defined in Company's then current
disability plan or if the Executive is otherwise unable to serve as Treasurer,
the Executive shall be entitled to receive group and other disability income
benefits of the type then provided by First Federal Savings and Loan Association
of Wooster for executive officers.
7. NONCOMPETITION.
(a) As a material inducement to Company to enter into this Agreement
and for Company to pay Executive compensation stated in Section 3, as well as
any additional benefits provided for herein, Executive covenants and agrees
that:
(i) Executive shall not, in the Market Area as defined below,
directly or indirectly, for a period commencing on the closing Date and
terminating on the date three years if Executive is Terminated for
Cause or voluntarily terminates his employment or two years if
Executive is involuntarily terminated following the Date of Termination
(the "Restricted Period"), for whatever reason, directly or indirectly,
whether as shareholder, partner, joint venturer, or agent of any
person, firm or corporation or other entity or otherwise, engage in any
or all of the following activities:
(a) Enter into or engage in any business which directly or
indirectly competes with the business of Company and its subsidiaries
(collectively for purposes only of this Section "Company");
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<PAGE> 71
(b) Interfere or attempt to interfere with the business,
goodwill, trade, customers or employees of Company or with any one
dealing with Company in the operation of Company's business;
(c) Solicit borrowers' and depositors' business, patronage, or
perform any services for, any business which directly or indirectly
competes with the business carried on by Company;
(d) Promote or assist, financially or otherwise, any person,
firm, association or corporation engaged in any business which directly
or indirectly competes with the business carried on by Company.
(ii) During the Restricted Period, the Executive shall not,
directly or indirectly, knowingly solicit or encourage to leave the
employment of Company, any employee of Company or hire any employee who
has left the employment of Company after the date of this Agreement
within one year of the termination of such employee's employment with
Company or such shorter period as shall be agreed by Company in
writing.
(b) If the Executive violates this restrictive covenant and Company
brings legal action for injunctive or other relief, Company shall not as a
result of the time involved in obtaining the relief be deprived of the benefit
of the full period of the restrictive covenant. Accordingly, the restrictive
covenant shall be deemed to have the duration specified herein, computed from
the date the relief is granted, but reduced by the time between the period when
the restriction began to run and the date of the first violation of the covenant
by Executive.
If any court shall determine that the duration or geographical limit of
any restriction contained in this paragraph is unenforceable, it is the
intention of the parties that the restrictive covenant set forth herein shall
not thereby be permitted to be terminated but shall be deemed amended to the
extent required to render it valid and enforceable. Such amendment shall apply
only with respect to the operation of this paragraph and the jurisdiction of the
court that has made the adjudication.
(c) If any court determines that any provision of this Section, or any
part thereof, is invalid or unenforceable, the remainder of the provisions of
this Section shall not thereby be affected and shall be given full effect,
without regard to the invalid portions.
(d) If any court determines that any of the provisions of this Section,
or any part thereof, is unenforceable because of the duration of such provision
or the area covered thereby, such court shall have the power to reduce the
duration or area of such provisions and, in its reduced form, such provision
shall then be enforceable and shall be enforced.
8. DISCLOSURE OF INFORMATION. The Executive acknowledges that in and as
a result of his employment hereunder, he will be making use of, acquiring and/or
adding to confidential information of a special and unique nature and value
relating to such matters as Company's and its affiliated
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<PAGE> 72
companies' trade secrets, systems, procedures, manuals, confidential reports,
and lists of customers. As a material inducement to Company to enter into this
Agreement and for Company to pay Executive compensation stated in Section 3, as
well as any additional benefits provided for herein, Executive covenants and
agrees that he shall not at any time during or following the term of his
employment, directly or indirectly divulge or disclose for any purpose
whatsoever any confidential information that has been obtained by or disclosed
to him as the result of employment by Company heretofore or hereafter, except
that there shall be no breach of this Section so long as Executive is acting in
good faith and there is no material harm to Company; provided, however, that
this duty of confidentiality shall not apply to information which is on the date
hereof generally known to the public or which is subsequently made public by an
individual authorized to do so.
9. SURRENDER OF BOOKS AND RECORDS. Executive acknowledges that all
files, books, records, literature, products, and other materials owned by
Company or its affiliates or used by it in connection with the conduct of its
business shall at all times remain the property of Company and that upon
termination of the employment hereunder, irrespective of the time, manner, or
cause of said termination, Executive will surrender to Company all such files,
books, records, literature, products, and other materials, other than such
personal effects not related to the operation of the business.
10. NO ASSIGNMENTS.
(a) This Agreement is personal to each of the parties hereto, and
neither party may assign or delegate any of its rights or obligations hereunder
without first obtaining the written consent of the other party.
(b) This Agreement and all rights of the Executive hereunder shall
inure to the benefit of and be enforceable by the Executive's personal and legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees.
11. REMEDIES. It is recognized by Executive that a special and
confidential relationship exists between Company and Executive because of his
knowledge, expertise and judgment and the dependence of Company upon his
knowledge, expertise and judgment. Executive agrees that the remedy at law for
any breach of threatened breach of the covenants set forth in paragraphs 7, 8
and 9 hereof will be inadequate and that any breach or attempted breach of such
covenants would cause such immediate and permanent damage as would be
irreparable and the exact amount of which would be impossible to ascertain.
Executive further agrees that in the event of any such breach or threatened
breach of such covenants by Executive, in addition to any and all other legal
and equitable remedies available, Company may have any of such actions enjoined
by any court authorized by law to take such action. Executive acknowledges and
agrees that the limitations contained in paragraphs 7, 8 and 9 hereof are
reasonable and properly required for the adequate protection of Company.
12. NOTICE. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when personally delivered or sent by certified
mail, return receipt requested, postage prepaid, to Company
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<PAGE> 73
at its home office, to the attention of the Board of Directors with a copy to
the secretary of Company, or, if to the Executive, to such home or other address
as the Executive has most recently provided, in writing to Company.
13. AMENDMENTS. No amendments or additions to this Agreement shall be
binding unless in writing and signed by both parties, except as herein otherwise
provided.
14. HEADINGS. The headings used in this Agreement are included solely
for convenience and shall not affect, or be used in connection with, the
interpretation of this Agreement.
15. SEVERABILITY. The provisions of this Agreement shall be deemed
severable and the invalidity and unenforceability of any provisions shall not
affect the validity or enforceability of the other provisions hereof.
16. GOVERNING LAW. This Agreement shall be governed by and is to be
construed and enforced in accordance with the laws of the State of Ohio.
17. ARBITRATION. Any dispute or controversy arising hereunder or in
connection with this Agreement shall be finally and conclusively determined by
the decision of a board of arbitration consisting of three members (hereinafter
sometimes called the "Board of Arbitration") collected as hereinafter provided.
Both Company and Executive shall select one member and the third member shall
be selected by mutual agreement of the other members, or if the other members
fail to reach an agreement on a third member within 20 days after their
selection, the third member shall thereafter be selected by the American
Arbitration Association upon application made to it for such purpose by
Company. The Board of Arbitration shall meet in Wooster, Ohio, or in such other
place as the majority of the members of the Board of Arbitration determines
more appropriate and shall reach and render a decision in writing (concurred in
by a majority by the members of the Board of Arbitration) with respect to the
resolution of the dispute or controversy. In connection with rendering its
decision, the Board of Arbitration shall adopt and follow such rules and
procedures, except with regard to discovery matters, as a majority of the
members of the Board of Arbitration deem necessary or appropriate. Arbitration
discovery shall be that discovery allowed by Ohio Rules of Civil Procedure
(Rule 5) as amended and modified by the parties herein permitting discovery by
deposition, interrogatories, requests for admission, and production of
documents, which Rules are incorporated by reference herein, but shall be
modified in their application as follows: (i) depositions shall be limited to:
the adversary (or in case of a corporation or other entity to two agents
thereof who may be required to be identified as competent for the discovery
purpose); other third party witnesses whose discovery may lead to relevant
evidence for the preparation of the arbitration; other third party witnesses
whose testimony reasonably needs to be perpetuated, including witnesses who by
affidavit, state that they cannot be available for the hearing. Depositions of
third party witnesses shall be limited to three; (ii) request for production of
documents shall be limited to one set of relevant and reasonable requests and
to such supplemental requests as may be reasonably required from information
produced; (iii) each side shall be permitted one set of interrogatories and
request for admissions, each consisting of no more than thirty (30) items
including sub-parts; (iv) the limitations
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<PAGE> 74
contained herein on the number of depositions, requests for production of
documents, interrogatories and requests for admissions may be modified by a
majority of the members of the Board of Arbitration upon motion of a party; (v)
all discovery disputes shall be resolved by the Arbitrator whose decision shall
be final, except as below provided, in any post-award proceeding under O.R.C.
Chapter 2711, the court may consider as an additional ground for vacating or
modifying the award an Arbitration Discovery decision involving a gross abuse of
discretion, the arbitrator and/or the court shall also be empowered to impose
costs, expenses (excluding attorney's fees) and sanctions as provided in the
Rules of Civil Procedure against any party for failure to comply with the
Arbitration Discovery, and to base such imposition on the same criteria used by
the courts in similar circumstances. To the extent practical, decisions of the
Board of Arbitration shall be rendered no more than 30 calendar days following
commencement of proceedings with respect thereto. The Board of Arbitration shall
cause its written decision made by the Board of Arbitration (either prior to or
after the expiration of such 30 calendar day period) shall be final, binding and
conclusive on Company and Executive and entitled to be enforced to the fullest
extent permitted by law and entered in any court of competent jurisdiction. The
party against whom any decision is rendered by the Board of Arbitration shall
pay (i) its own expenses in relation to any arbitration, including but not
limited to such party's attorneys' fees, (ii) the expenses and fees of the Board
of Arbitration, and (iii) all expenses, including but not limited to attorneys'
fees, of the prevailing party to any such arbitration. Notwithstanding anything
in this Agreement to the contrary, nothing in this Agreement shall restrict or
prohibit any party to any arbitration under this Section from obtaining
injunctive relief in connection with any claim hereunder.
18. OTHER AGREEMENTS. At the Effective Time (as defined in the Merger
Agreement), all agreements by and between Executive and Summit Bancorp and
Summit Bank shall terminate and be null and void, including but not limited to
Summit Bancorp Termination Agreement. At the Effective Time, this Agreement
shall constitute the sole agreement for employment for Executive.
19. DEFINITIONS.
(a) The term "Date of Termination" means the earlier of (1) the date
upon which Company gives notice to the Executive of the termination of his
employment with Company or (2) the date upon which the Executive ceases to serve
as an employee of Company.
(b) The term "Involuntary Termination" means the termination of the
employment of Executive without his express written consent, and shall include a
material diminution of or interference with the Executive's duties,
responsibilities and benefits as Treasurer of the Company, including (without
limitation) any of the following actions unless consented to in writing by the
Executive; (1) a change in the principal workplace of the Executive to a
location outside of a 60 mile radius from Company's headquarters office as of
the date hereof; (2) a material demotion of the Executive; (3) a material
adverse change in the Executive's salary, perquisites, benefits, contingent
benefits or vacation, other than as part of an overall program applied uniformly
and with equitable effect to all members of the senior management of the
Company; and (5) a material permanent increase in the required hours of work or
the workload of the Executive. The term "Involuntary Termination" does not
include Termination for Cause or termination of employment due to retirement,
death, disability or suspension.
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(c) The terms "Termination for Cause" and "Terminated for Cause" mean
termination of the employment of the Executive because of the Executive's
personal dishonesty, willful misconduct, willful violation of any law, rule or
regulation (other than traffic violations or similar offenses), incompetence, or
material breach of any provision of this Agreement. No act, or failure to act,
on the Executive's part shall be considered "willful" unless the Executive has
acted (or failed to act) with an absence of good faith and without reasonable
belief that the Executive's action or failure to act was in the best interest of
Company.
(d) The term "Market Area" means any county in any state in which
Company or any of Company's subsidiaries maintains an office.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE
ENFORCED BY THE PARTIES.
FIRSTFEDERAL FINANCIAL
SERVICES CORP
By
-------------------------
Name:
Title:
EXECUTIVE:
----------------------------
Jon W. Park
-8-
<PAGE> 76
EXHIBIT B
---------
None
<PAGE> 77
EXHIBIT B
---------
None
<PAGE> 78
EXHIBIT C
---------
Prescribed by Approved_______
Bob Taft, Secretary of State Date___________
30 East Broad Street, 14th Floor Fee____________
Columbus, Ohio 43266-0418
Form MER (July 1994)
CERTIFICATE OF MERGER
In accordance with the requirements of Ohio law, the undersigned
corporations, limited liability companies and/or limited partnerships, desiring
to effect a merger, set forth the following facts:
I. SURVIVING ENTITY
A. The name of the entity surviving the merger is:
FIRSTFEDERAL FINANCIAL SERVICES CORP
-----------------------------------------------------------------------
-----------------------------------------------------------------------
(if the surviving entity is an Ohio limited partnership or qualified
foreign limited partnership, its registration number must be provided)
B. NAME CHANGE: As a result of this merger, the name of the surviving
entity has been changed to the following: ________________________
________________________________________________________(COMPLETE
ONLY IF THE NAME OF SURVIVING ENTITY IS CHANGING THROUGH THE
MERGER)
C. The surviving entity is a: (PLEASE CHECK THE APPROPRIATE BOX AND
FILL IN THE APPROPRIATE BLANKS)
[X] Domestic (Ohio) corporation
[ ] Foreign (Non-Ohio) corporation incorporated under the laws
of the state/ country of _____________________ and licensed to
transact business in the state of Ohio.
[ ] Foreign (Non-Ohio) corporation incorporated under the laws
of the state/country of _____________________, and NOT
licensed to transact business in the state of Ohio.
[ ] Domestic (Ohio) limited liability company
[ ] Foreign (Non-Ohio) limited liability company organized under
the laws of the state/country of ______________________, and
registered to do business in the state of Ohio.
[ ] Foreign (Non-Ohio) limited liability company organized under
the laws of the state/country of _______________________, and
NOT registered to do business in the state of Ohio.
[ ] Domestic (Ohio) limited partnership, registration number _________
<PAGE> 79
[ ] Foreign (Non-Ohio) limited partnership organized under the
laws of the state/country of ________________________________,
and registered to do business in the state of Ohio, under
registration number ___________________
[ ] Foreign (Non-Ohio) limited partnership organized under the
laws of the state/country of ________________, and NOT
registered to do business in the state of Ohio.
II. MERGING ENTITIES
The name, type of entity, and state/country of incorporation or
organization, respectively, of each entity, other than the survivor, which is a
party to the merger are as follows: (IF INSUFFICIENT SPACE TO COVER THIS ITEM,
PLEASE ATTACH A SEPARATE SHEET LISTING THE MERGING ENTITIES;OHIO REGISTERED OR
FOREIGN QUALIFIED LIMITED PARTNERSHIPS MUST INCLUDE REGISTRATION NUMBER)
NAME STATE/ COUNTRY OF ORGANIZATION TYPE OF ENTITY
Summit Bancorp Ohio corporation
- ------------------------------- ------------------ --------------------
- ------------------------------- ------------------ --------------------
- ------------------------------- ------------------ --------------------
- ------------------------------- ------------------ --------------------
- ------------------------------- ------------------ --------------------
III. MERGER AGREEMENT ON FILE
The name and mailing address of the person or entity from whom/which
eligible persons may obtain a copy of the agreement of merger upon written
request:
NAME ADDRESS
Robert C. Berry 225 N. Market St., P.O. Box 599
- ------------------------------------ --------------------------------
Wooster, Ohio 44691
--------------------
IV. EFFECTIVE DATE OF MERGER
This merger is to be effective:
On ________________________(if a date is specified, the date must be a
date ON OR AFTER THE DATE OF FILING; the effective date of the merger cannot be
earlier than the date of filing; if no date is specified, the date of filing
will be the effective date of the merger).
V. MERGER AUTHORIZED
The laws of the state or country under which each constituent entity
exists, permits this merger.
<PAGE> 80
This merger was adopted, approved and authorized by each of the
constituent entities in compliance with the laws of the state under which it is
organized, and the persons signing this certificate on behalf of each of the
constituent entities are duly authorized to do so .
VI. STATUTORY AGENT
The name and address of the surviving entity's statutory agent upon
whom any process, notice or demand may be served is:
NAME ADDRESS
- -------------------------- ------------------------
------------------------
(THIS ITEM MUST BE COMPLETED IF THE SURVIVING ENTITY IS A FOREIGN ENTITY WHICH
IS NOT LICENSED, REGISTERED OR OTHERWISE AUTHORIZED TO CONDUCT OR TRANSACT
BUSINESS IN THE STATE OF OHIO)
ACCEPTANCE OF AGENT
The undersigned, named herein as the statutory agent for the above
referenced surviving entity, hereby acknowledges and accepts the appointment of
statutory agent for said entity.
--------------------------------------------
SIGNATURE OF AGENT
(THE ACCEPTANCE OF AGENT MUST BE COMPLETED BY DOMESTIC SURVIVING ENTITIES IF
THROUGH THIS MERGER THE STATUTORY AGENT FOR THE SURVIVING ENTITY HAS CHANGED, OR
THE NAMED AGENT DIFFERS IN ANY WAY FROM THE NAME REFLECTED ON THE SECRETARY OF
STATE'S RECORDS.)
VII. STATEMENT OF MERGER
Upon filing, or upon such later date as specified herein, the merging
entity/entities listed herein shall merge into the listed surviving entity.
VIII. AMENDMENTS
The articles of incorporation of the surviving domestic entity herein,
are amended as set forth in the attached "Exhibit A"
(PLEASE NOTE THAT ANY AMENDMENTS TO ARTICLES OF INCORPORATION, ARTICLES
OF ORGANIZATION OR TO A CERTIFICATE OF LIMITED PARTNERSHIP MUST BE ATTACHED IF
THE SURVIVING ENTITY IS A DOMESTIC CORPORATION, LIMITED LIABILITY COMPANY, OR
LIMITED PARTNERSHIP.)
IX. QUALIFICATION OR LICENSURE OF FOREIGN SURVIVING ENTITY
A. The listed surviving foreign corporation, limited liability company,
or limited partnership desires to transact business in Ohio as a foreign
corporation, foreign limited liability company, or foreign limited partnership,
and hereby appoints the following as its statutory agent upon whom process,
notice or demand
<PAGE> 81
against the entity may be served in the State of Ohio. The name and complete
address of the statutory agent is:
- ------------------------------- ---------------------------------
(name) ( street and number)
_______________________________________ , Ohio __________________
(city, village or township) ( zip code)
The subject surviving foreign corporation, limited liability company or
limited partnership irrevocably consents to service of process on the statutory
agent listed above as long as the authority of the agent continues, and to
service of process upon the Secretary of State if the agent cannot be found, if
the corporation, limited liability company or limited partnership fails to
designate another agent when required to do so, or if the corporation's, limited
liability company's, or limited partnership's license or registration to do
business in Ohio expires or is cancelled.
B. The qualifying entity also states as follows: (complete only if
applicable)
1. FOREIGN QUALIFYING LIMITED LIABILITY COMPANY
_________________________
month day year
(If the qualifying entity is a foreign limited liability
company, the following information must be completed)
a. The name of the limited liability company in its
state of organization/registration is ______________
____________________________________________________
b. The name under which the limited liability company
desires to transact business in Ohio is
_________________________________
c. The limited liability company was organized or
registered on ___________________________
month day year
under the laws of the state/country of
__________________________________________
d. The address to which interested persons may direct
request for copies of the articles of organization,
operating agreement, bylaws, or other charter
documents of the company is:________________________
____________________________________________________
2. FOREIGN QUALIFYING LIMITED PARTNERSHIP (If the qualifying
entity is a foreign limited partnership, the following
information must be completed)
a. The name of limited partnership is__________________
____________________________________________________
b. The limited partnership was formed on
_________________________
month day year
under the laws of the state/country of
________________________________________________
<PAGE> 82
c. The address of the office of the limited partnership
in its state/country of organization
is__________________________________________________
____________________________________________________
d. The limited partnership's principal office address
is _________________________________________________
____________________________________________________
e. The names and business or residence addresses of the
GENERAL partners of the partnership are as follows:
Name Address
----------------------------------------------------
----------------------------------------------------
----------------------------------------------------
(IF INSUFFICIENT SPACE TO COVER THIS ITEM, PLEASE
ATTACH A SEPARATE SHEET LISTING THE GENERAL PARTNERS
AND THEIR RESPECTIVE ADDRESSES)
f. The address of the office where a list of the names
and business or residence addresses of the limited
partners and their respective capital contributions
is to be maintained is:
---------------------------------------------------
---------------------------------------------------
The limited partnership hereby certifies that it
shall maintain said records until the registration
of the limited partnership in Ohio is cancelled or
withdrawn.
The undersigned constituent entities have caused this certificate of
merger to be signed by its duly authorized officers, partners and
representatives on the date(s) stated below.
FIRSTFEDERAL FINANCIAL SERVICES CORP SUMMIT BANCORP
By: By:
------------------------------------ ---------------------------
Its: Chief Executive Officer Its: Chief Executive Officer
Date:__________________ Date:_______________________
<PAGE> 83
EXHIBIT D
---------
None
<PAGE> 84
EXHIBIT E
---------
December 31, 1996
Board of Directors of
FirstFederal Financial Services Corp
135 E. Liberty St.
Wooster, OH 44691
Re: Agreement of Affiliation and Plan of Merger
Gentlemen:
We have acted as counsel to Summit Bancorp ("Summit"), an Ohio
corporation, and its subsidiaries, Summit Bank, a state chartered bank under the
laws of the State of Ohio and Summit Banc Investments Corporation, an Ohio
corporation (collectively "Subsidiary") in conjunction with the negotiation,
execution, and consummation of a certain Agreement of Affiliation and Plan of
Merger between FirstFederal Financial Services Corp ("FirstFederal") and Summit
dated ________________, 1996, along with certain other related agreements
(collectively "Merger Agreement").
As used herein, all terms which are defined in the Merger Agreement
shall be defined as set forth therein.
We have examined executed copies of the Merger Agreement and the
exhibits and schedules thereto and such other certificates of public officials,
shareholders and officers of Summit and Subsidiary and other documents that we
have deemed relevant and necessary as the basis for the opinions set forth
herein.
Subject to the limitations or qualifications expressly set forth
herein, we are of the opinion that:
1. Summit is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Ohio, and has all requisite
corporate power and authority to perform its obligations under the Merger
Agreement, to conduct its business as now conducted, and to own, use and lease
its Assets as now owned or leased.
<PAGE> 85
2. Summit Bank is a state chartered bank under the laws of the State of
Ohio, validly existing, and in good standing under the laws of the State of
Ohio, and has all requisite corporate power and authority to conduct its
business as now conducted and to own, use, and lease its Assets as now owned or
leased.
3. Summit Banc Investments Corporation is a corporation duly
incorporated, validly existing, and in good standing under the laws of the State
of Ohio, and has all requisite corporate power and authority to conduct its
business as now conducted and to own, use, and lease its Assets as now owned or
leased.
4. The execution, delivery and performance of the Merger Agreement by
Summit and the consummation by Summit of the transactions contemplated thereby
have been duly and validly approved by the Board of Directors of Summit and the
shareholders of Summit and no other corporate proceedings on the part of Summit
are necessary to authorize the execution, delivery and performance of the Merger
Agreement by Summit and the consummation by Summit of the transactions
contemplated thereby.
5. Summit's authorized capital stock consists of 3,000,000 shares of
common stock, of which only 234,916 Shares are issued and outstanding, and
300,000 Shares of Serial Preferred Stock without par value, none of which are
issued and outstanding. The common stock which is issued and outstanding is duly
authorized, validly issued, fully paid and nonassessable. To our knowledge and
except for the outstanding Stock Options as disclosed in the Merger Agreement
and Disclosure Schedule, there are no other Stock Options issued pursuant to the
Stock Option Plan and no other securities, warrants or other rights entitling
another person to acquire any securities of Summit.
6. The Merger Agreement has been duly and validly executed and
delivered by Summit and constitutes legal, valid and binding obligations of
Summit enforceable against Summit in accordance with its terms, except that such
enforcement may be subject to (i) bankruptcy, liquidation, conservation,
dissolution, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally and
(ii) the effects of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law), including,
without limitation, (A) the possible unavailability of specific performance,
injunctive relief or any other equitable remedy and (B) concepts of materiality,
reasonableness, good faith and fair dealing and (C) [FDIC exception].
7. Each subsidiary of Summit and Subsidiary are duly organized, validly
existing and qualified to do business and in good standing in those
jurisdictions in which such qualification is legally required, except where the
failure to be so qualified or in good standing does not have a Material Adverse
Effect on the Business or Condition of Summit or Subsidiary.
8. The execution, delivery and performance by Summit of the Merger
Agreement to which Summit is a party and the consummation of the transactions
contemplated thereby do not
<PAGE> 86
(a) conflict with or result in a violation or breach of any of the terms,
conditions or provisions of the Articles of Incorporation or Code of Regulations
of Summit, (b) conflict with or result in a violation or breach of any term or
provision of any law or any order of which we have knowledge applicable to
Summit or any of their respective Assets or (c) to our knowledge, except as
disclosed in the Disclosure Schedule, (i) conflict with or result in a violation
or breach of, (ii) constitute (with or without notice or lapse of time or both)
a default under, (iii) require Summit to obtain any consent, approval or action
of, make any filing with or give any notice to any Person as a result or under
the terms of, (iv) result in or give to any Person any right of termination,
cancellation, acceleration or modification in or with respect to, (v) result in
or give to any Person any additional rights or entitlement to increased,
additional, accelerated or guaranteed payments under, or (vi) result in the
creation or imposition of any Lien upon Summit or Subsidiary or any of their
respective Assets under any Contract or License to which Summit or Subsidiary is
a party or by which any of their respective Assets is bound.
9. To the best of such counsel's knowledge, there are no actions or
proceedings pending or threatened against, relating to or affecting Summit or
Subsidiary or any of their respective Assets which (a) could reasonably be
expected to result in the issuance of any Order restraining, enjoining or
otherwise prohibiting or making illegal the consummation of any of the
transactions contemplated by this Merger Agreement or otherwise result in a
material diminution of the benefits contemplated by this Merger Agreement to
FirstFederal, or (b) if determined adversely to Summit or Subsidiary, could
reasonably be expected to result in (i) any injunction or other equitable relief
against Summit or Subsidiary that would interfere in any material respect with
its business or operations or (ii) except for those matters disclosed on
Schedule 3.12 of the Disclosure Schedule, losses by Summit or Subsidiary,
individually or in the aggregate with losses in respect of other such actions or
proceedings, would have a Material Adverse Effect on Summit. To our knowledge,
there are no Orders outstanding against Summit or Subsidiary.
10. To the best of such counsel's knowledge, neither Summit nor
Subsidiary is in violation of any federal, state or local law, ordinance,
governmental rule or regulation or court decree to which it may be subject,
which violation will have a Material Adverse Effect on the Business or Condition
of Summit or Subsidiary.
11. Except for the acceptance by the Ohio Secretary of State of filing
of the Ohio Certificate of Merger, all necessary Regulatory Approvals for the
transactions provided by the Merger Agreement have been obtained from the
appropriate regulatory authorities and no additional consent, approval, or
action of, filing with, or notice to any governmental or regulatory authority of
the State of Ohio or the United States of America on the part of Summit or
Subsidiary is required in connection with the execution, delivery and
performance of the Merger Agreement or the consummation of the transaction
contemplated thereby.
12. To the best of such counsel's knowledge, there is nothing that
would render the Merger not effective.
<PAGE> 87
Although we have not checked the accuracy or completeness of, or
otherwise verified, the information furnished in the registration statement or
the prospectus, as such information relates to Summit or Subsidiary, there is no
reason to believe that at the effective date of the registration statement or
any further amendment thereto, that the registration statement or prospectus
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading or that any amendment or supplement thereto contains any
untrue statement of a material fact or omits to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except we express no comment on operating
statistics, financial statements, financial schedules, and other financial data.
To the best of such counsel's knowledge, Summit and Subsidiary have
obtained all Licenses which are required in respect of its business, operations
or Assets under applicable environmental laws; and to the best of our knowledge,
Summit and Subsidiary are in compliance in all material respects with the terms
and conditions of all such Licenses and with any applicable environmental law.
To the best of such counsel's knowledge, Summit and Subsidiary and each
subsidiary thereof have good and marketable title to all properties and Assets
owned by it or purported to be owned by it, free and clear of all Liens, except
such as are described or referred to in the Disclosure Schedule or do not
materially affect the value of such property and do not interfere with the use
made and proposed to be made of such property by Summit or Subsidiary.
SUCH ASSUMPTIONS, EXCEPTIONS, AND QUALIFICATIONS MUTUALLY
AGREED UPON.
BROUSE & MCDOWELL
By
--------------------------
<PAGE> 88
EXHIBIT F
---------
December 31, 1996
Board of Directors of
Summit Bancorp
2680 West Market Street
Akron, Ohio 44333
Re: Agreement of Affiliation and Plan of Merger
Gentlemen:
We have acted as counsel to FirstFederal Financial Services Corp
("FirstFederal") in connection with the negotiation, execution, and consummation
of a certain Agreement of Affiliation and Plan of Merger by and among
FirstFederal and Summit Bancorp ("Summit"), dated ____________________, 19___,
along with certain other related agreements (collectively hereinafter "Merger
Agreement").
As used herein, all terms which are defined in the Merger Agreement
shall be defined as set forth therein.
We have examined executed copies of the Merger Agreement and the
exhibits and schedules thereto and such other certificates of public officials
and officers of FirstFederal and other documents that we have deemed relevant
and necessary as the basis for the opinions set forth herein.
Subject to the limitations or qualifications expressly set forth
herein, we are of the opinion that:
1. FirstFederal is a corporation duly incorporated, validly existing,
and in good standing under the laws of the State of Ohio and has all requisite
corporate power and authority to perform its obligations under the Merger
Agreement, to conduct its business as now conducted, and to own, use and lease
its Assets as now owned or leased.
<PAGE> 89
2. The execution, delivery, and performance of the Merger Agreement by
FirstFederal and the consummation by FirstFederal of the transactions
contemplated thereby have been duly and validly approved by the Board of
Directors of FirstFederal and no other corporate proceedings on the part of
FirstFederal are necessary to authorize the execution, delivery, and performance
of the Merger Agreement by FirstFederal and the consummation by FirstFederal of
the transactions contemplated thereby.
3. FirstFederal is authorized to have outstanding the following stock
as of September 30, 1996: (a) 20,000,000 shares of common stock, $1.00 par
value, of which (i) _________ shares are issued and outstanding, and (ii)
_______ shares are treasury shares; (b) 1,500,000 shares serial preferred stock,
no par value, of which (i) _______ shares of 7% Cumulative Convertible Series A
are outstanding and (ii) _______ shares of 6.5% Cumulative Convertible Series B
are outstanding. All of the outstanding FirstFederal Common Stock and the
FirstFederal Common Stock to be issued in connection with the Merger will be,
when issued, validly issued, fully paid, and nonassessable.
4. The Merger Agreement has been duly and validly executed and
delivered by FirstFederal and constitutes legal, valid, and binding obligations
of FirstFederal enforceable against FirstFederal in accordance with its terms,
except that such enforcement may be subject to (i) bankruptcy, liquidation,
conservation, dissolution, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally and (ii) the effects of general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law),
including, without limitation, (A) the possible unavailability of specific
performance, injunctive relief or any other equitable remedy and (B) concepts of
materiality, reasonableness, good faith and fair dealing.
5. FirstFederal has taken all necessary and required corporate action
to authorize the issuance or transfer of the shares of its common stock to be
received by holders of the common stock of Summit as a result of the merger of
Summit with and into FirstFederal and, when so issued or transferred, such
shares will be legally and validly issued and outstanding, fully paid and
nonassessable, and will not upon such transfer or issuance be subject to the
preemptive rights of any shareholder of FirstFederal, and such shares have been
registered under the Securities Act of 1933, as amended.
6. The registration statement filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, Registration No.
_________ (the "Registration Statement"), by FirstFederal to register the shares
of Common Stock of FirstFederal being offered to the shareholders of Summit in
the merger provided for in the Merger Agreement has been declared effective and
no stop order has been issued and no proceeding for the purpose has been
initiated or, to our best knowledge, contemplated or threatened by the
Securities and Exchange Commission.
<PAGE> 90
7. The Registration Statement and the prospectus included therein at
the time it became effective complied as to form with the Securities Act of
1933, as amended, and the rules and regulations thereunder.
8. Although we have not checked the accuracy or completeness of, or
otherwise verified, the information furnished in the Registration Statement or
the prospectus, as such information relates to FirstFederal, there is no reason
to believe that at the effective date of the Registration Statement or any
further amendment thereto, that the Registration Statement or prospectus
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading or that any amendment or supplement thereto contains any
untrue statement of a material fact or omits to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except we express no comment on operating
statistics, financial statements, financial schedules, and other financial data.
9. Except for the acceptance by the Ohio Secretary of State of filing
of the Ohio Certificate of Merger, all necessary Regulatory Approvals for the
transactions provided by the Merger Agreement have been obtained from the
appropriate regulatory authorities and no additional consent, approval, or
action of, filing with, or notice to any governmental or regulatory authority of
the State of Ohio or the United States of America on the part of FirstFederal is
required in connection with the execution, delivery and performance of the
Merger Agreement or the consummation of the transaction contemplated thereby.
10. The execution, delivery and performance by FirstFederal of the
Merger Agreement to which FirstFederal is a party and the consummation of the
transactions contemplated thereby do not (a) conflict with or result in a
violation or breach of any of the terms, conditions or provisions of the
Articles of Incorporation or Code of Regulations of FirstFederal, (b) conflict
with or result in a violation or breach of any term or provision of any law or
any order of which we have knowledge applicable to FirstFederal or any of its
respective Assets or (c) to our knowledge, except as disclosed in the Disclosure
Schedule, (i) conflict with or result in a violation or breach of, (ii)
constitute (with or without notice or lapse of time or both) a default under,
(iii) require FirstFederal to obtain any consent, approval or action of, make
any filing with or give any notice to any Person as a result or under the terms
of, (iv) result in or give to any Person any right of termination, cancellation,
acceleration or modification in or with respect to, (v) result in or give to any
Person any additional rights or entitlement to increased, additional,
accelerated or guaranteed payments under, or (vi) result in the creation or
imposition of any Lien upon FirstFederal or any of their respective Assets under
any Contract or License to which FirstFederal is a party or by which any of its
respective Assets is bound.
11. To our knowledge, there are no actions or proceedings pending or
threatened against, relating to or affecting FirstFederal or any of its
respective Assets which (a) could reasonably be expected to result in the
issuance of any Order restraining, enjoining or otherwise prohibiting or making
illegal the consummation of any of the transactions contemplated by this
<PAGE> 91
Merger Agreement or otherwise result in a material diminution of the benefits
contemplated by this Merger Agreement to Summit, or (b) if determined adversely
to FirstFederal, could reasonably be expected to result in (i) any injunction or
other equitable relief against FirstFederal that would interfere in any material
respect with its business or operations or (ii) except for those matters
disclosed on Schedule 4.12 of the Disclosure Schedule, losses by FirstFederal,
individually or in the aggregate with losses in respect of other such actions or
proceedings, would have a Material Adverse Effect on FirstFederal. To our
knowledge, there are no Orders outstanding against FirstFederal.
A. This opinion is subject to the following assumptions, exceptions and
qualifications. The opinions set forth above in paragraphs 1 through 11 are
limited to the matters expressly set forth in this opinion letter and no opinion
is to be implied or may be inferred beyond the matters expressly so opined.
B. Capitalized terms used herein which are not defined shall have the
same meaning as those terms in the Merger Agreement.
C. In rendering this opinion, we have assumed, with your permission and
without independent verification, that:
(i) All documents submitted to us as originals or duplicate
originals are authentic;
(ii) All documents submitted to us as copies, whether
certified or not, conform to authentic original documents;
(iii) All signatures of persons signing all documents examined
in connection with this opinion are genuine;
(iv) All parties to the documents reviewed by us (other than
First Federal) have full power and authority to execute, deliver and
perform their obligations under such documents, and under the documents
required or permitted to be delivered and performed under the documents
reviewed by us, and all such documents have been duly authorized by all
necessary corporate or other action on the part of such parties.
D. The opinion set forth herein as to whether the Merger Agreement and
related documents are valid and binding obligations of FirstFederal and
enforceable in accordance with their terms are subject to the following
qualifications:
(i) Applicable bankruptcy, fraudulent conveyance, and other
laws affecting creditors' rights;
<PAGE> 92
(ii) The effect of rules of laws governing specific
performance, injunctive relief, and other equitable remedies on the
enforceability of the Merger Agreement and related documents;
(iii) Public policy limitations;
(iv) Limitations on the enforceability of provisions for
payment of attorney's fees under state law; and
(v) Any waiver of any common law or statutory right.
E. When reference is made in this opinion to "knowledge," it means the
actual knowledge of those members and associates of Critchfield, Critchfield &
Johnston, Ltd. who have given substantive attention to the Merger Agreement.
F. This opinion is limited to the present laws of the State of Ohio and
the federal laws of the United States of America, to present judicial
interpretation thereof and to the facts as they presently exist.
G. We disclaim any undertaking to update this letter or otherwise
advise you of any changes of law or fact which may hereafter be brought to our
attention.
H. In rendering this opinion, we have relied as to all matters of fact
on certificates of officers of FirstFederal and of public officials. As for
matters of fact on which we have relied on certificates of officers of
FirstFederal or public officials, nothing has come to our attention that leads
us to question or gives us grounds to question the accuracy or completeness of
such certificates.
I. The opinions expressed herein are expressed solely to the addressees
hereof, who may rely hereon, and this opinion shall not be deemed to extend to
any other person, firm or entity, and shall not be delivered to any person, firm
or entity or quoted or summarized in whole or in part, without the express prior
written consent of this firm.
CRITCHFIELD, CRITCHFIELD &
JOHNSTON, LTD.
Daniel H. Plumly, Member
<PAGE> 93
AGREEMENT AS TO PRICE
---------------------
WHEREAS, Summit Bancorp, an Ohio corporation, and FirstFederal
Financial Services Corp, an Ohio corporation, entered into on even date herewith
an Agreement of Affiliation and Plan of Merger ("Merger Agreement");
WHEREAS, under the definition of FirstFederal Share Price Change
contained in the Merger Agreement, a determination is required as to the average
closing Sales Price of FirstFederal Common Stock as reported on the Nasdaq for
five consecutive Trading Days ending on the Trading Day prior to the Trading Day
the Merger Agreement is executed by all parties;
WHEREAS, the average closing Sales Price for such days for FirstFederal
Common Stock as reported on Nasdaq is equal to $39.375;
WHEREAS, under the definition of SNL Index Price Change contained in
the Merger Agreement, a determination is required as to the average closing
value of SNL Index for five consecutive Trading Days ending on the Trading Day
prior to the Trading Day the Merger Agreement is executed by all parties;
WHEREAS, the average closing value for such days for the SNL Index is
equal to $268.033.
NOW, THEREFORE, the parties hereto agree as follows:
1. For purposes of the FirstFederal Share Price Change definition
contained in the Merger Agreement, the average closing Sales Price of
FirstFederal Common Stock as reported on Nasdaq for the five consecutive Trading
Days ending on the Trading Day prior to the Trading Day the Merger Agreement is
executed by all parties is equal to $39.375.
2. For purposes of the SNL Index Price Change definition contained in
the Merger Agreement, the average closing value of the SNL Index for the five
consecutive Trading Days ending on the Trading Day prior to the Trading Day the
Merger Agreement is executed by all parties is equal to $268.033.
3. As used herein, all terms which are defined in the Merger Agreement
shall be defined as set forth therein.
FIRSTFEDERAL FINANCIAL SERVICES
CORP
By /s/ Gary G. Clark
----------------------------------
Name: Gary G. Clark
Title: Chief Executive Officer
SUMMIT BANCORP
By /s/ David C. Vernon
----------------------------------
Name: David C. Vernon
Title: Chairman of the Board,
President and Chief Executive
Officer
<PAGE> 1
Exhibit 10(e)
RESTRICTED STOCK AWARD AGREEMENT
This Award Agreement is effective as of the 15th day of August, 1996 ("Date
of Award"), between Summit Bancorp, an Ohio corporation (the "Company"), and
David C. Vernon (the "Grantee"). In consideration of the agreements set forth
below, the Company and the Grantee agree as follows:
1. GRANT. A restricted stock award ("Award") of 3,600 shares ("Award
Shares") of the Company's common stock, no par value ("Common Stock"), is hereby
granted by the Company to the Grantee subject to the following terms and
conditions and to the provisions of the Summit Bancorp 1996 Restricted Stock
Plan (the "Plan"), the terms of which are hereby incorporated by reference.
2. TRANSFER RESTRICTIONS. None of the Award Shares shall be sold, assigned
or transferred, in whole or in part, voluntarily or involuntarily, by the
Grantee, nor made subject to any lien (except as provided in Section 6, below),
directly or indirectly, by operation of law or otherwise, including execution,
levy, garnishment, attachment, pledge or bankruptcy.
3. RELEASE OF RESTRICTIONS.
(A) The restrictions set forth in Section 2 above shall lapse as follows:
(i) with respect to 800 Award Shares, on the date of this Award
Agreement;
(ii) with respect to 1,200 Award Shares, on the first anniversary date
of this Award Agreement; and
(iii) with respect to 1,600 Award Shares, on the second anniversary
date of this Award Agreement; and
(B) The restrictions set forth in Section 2 above with respect to all of
the Award Shares, to the extent they have not lapsed in accordance with
subsection 3(A) and to the extent not related to shares which previously have
been forfeited to the Company, shall lapse on the first to happen of the
following:
(i) the Grantee's employment with the Company is terminated following
a Change of Control, or by reason of death, Disability, Termination of
Employment Without Cause or Termination of Employment for Good Reason (for
purposes of this subsection (i), the terms "Change of Control,"
"Disability," "Termination of Employment Without Cause," and "Termination
of Employment for Good Reason" shall have the same meanings ascribed to
such terms in the Termination Agreement, effective as of August 15, 1996,
between the Company and the Grantee (the "Termination Agreement")); or
(ii) an action by the Committee, in its sole discretion, terminating
such restrictions.
1
<PAGE> 2
The provisions of the second sentence of Section 14 of the Plan shall not apply
to this Award and, therefore, the lapse of the restrictions set forth in Section
2 upon the occurrence of a Change of Control, as provided in Section 3(B)(i),
shall not be limited as otherwise provided in Section 14 of the Plan.
4. FORFEITURE. The Award Shares shall be forfeited to the Company upon the
Grantee's termination of employment with the Company and its subsidiaries unless
on or prior to the date the restrictions lapse as provided in Section 3 above.
5. RIGHTS AS SHAREHOLDER. The Grantee shall be entitled to all of the
rights of a shareholder with respect to the Award Shares including the right to
vote such shares and to receive dividends and other distributions payable with
respect to such shares since the Date of Award.
6. ESCROW OF SHARE CERTIFICATES. For the purposes of securing the
re-transfer of the shares into the name of the Company in the event of
forfeiture and to ensure adequate provision for any tax withholding obligations
arising with respect to the Award, certificates for the Award Shares shall be
issued in the Grantee's name and shall be held in escrow by, and subject to a
security interest in favor of, the Company until restrictions with respect to
such shares lapse and all withholding obligations have been satisfied or such
shares are forfeited as provided herein; provided, however, that the terms of
such escrow shall make allowance for the transactions contemplated by Section
3(B)(i) above. A certificate or certificates representing the Award Shares as to
which restrictions have lapsed shall be delivered to the Grantee upon such lapse
and the satisfaction of any withholding obligations.
7. GOVERMMENT REGULATIONS. Notwithstanding anything contained herein to the
contrary, the Company's obligation to issue or deliver certificates evidencing
the Award Shares shall be subject to all applicable laws, rules and regulations
and to such approvals by any governmental agencies or national securities
exchanges as may be required.
8. WITHHOLDING TAXES. The Company shall have the right to require the
Grantee to remit to the Company, or to withhold from other amounts payable to
the Grantee, as compensation or otherwise, an amount sufficient to satisfy all
federal, state and local withholding tax requirements.
9. GOVERNING LAW. This Agreement shall be construed under the laws of the
State of Ohio.
10. RIGHT TO TERMINATE EMPLOYMENT. This Award shall not confer upon the
Grantee any right with respect to being continued in the employ of the Company
or to interfere in any way with the right of the Company to terminate his
employment at any time, for any reason, with or without cause, except as may
otherwise be stated in the Termination Agreement or other employment agreement
between the Company and Employee.
2
<PAGE> 3
IN WITNESS WHEREOF, the Company has caused the Award to be granted pursuant
to this Award Agreement on the date first above written.
SUMMIT BANCORP
By: /s/ Deborah L. Jacob
---------------------------------------------
Deborah L. Jacob, Vice President & Secretary
Accepted:
GRANTEE:
/s/ David C. Vernon
- -------------------------------
David C. Vernon
Date: August 15, 1996
3
<PAGE> 1
EXHIBIT 21
----------
SUBSIDIARIES OF THE REGISTRANT
- ------------------------------
Summit Bank
Summit Banc Investments Corporation
<PAGE> 1
Exhibit 23
[CROWE CHIZEK LOGO]
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement of
Summit Bancorp's 1989 Stock Incentive Plan on Form S-8, of our report dated
February 7, 1997 on the 1996 consolidated financial statements of Summit
Bancorp, which report is included in and incorporated by reference in the Annual
Report on Form 10-KSB of Summit Bancorp, for the year ended December 31, 1996.
/s/ Crowe, Chizek and Company LLP
Crowe, Chizek and Company LLP
Columbus, Ohio
March 13, 1997
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<ARTICLE> 9
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<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> DEC-31-1996
<CASH> 65,718
<INT-BEARING-DEPOSITS> 129,163
<FED-FUNDS-SOLD> 0
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<ALLOWANCE> 837,805
<TOTAL-ASSETS> 81,245,445
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<LONG-TERM> 3,000,000
0
0
<COMMON> 6,138,895
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<SECURITIES-GAINS> 45,547
<EXPENSE-OTHER> 3,208,117
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<EXTRAORDINARY> 0
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<NET-INCOME> 800,501
<EPS-PRIMARY> 3.43
<EPS-DILUTED> 3.36
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<LOANS-NON> 275,000
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