EXHIBIT 10.1
FORM OF VOTING AGREEMENT
This Voting Agreement, dated as of January 6, 2004 (this "Agreement"), is
by and among Community Bank System, Inc., a Delaware corporation ("CBSI"),
Community Bank, N.A., a national banking association ("CBNA"), and the
undersigned shareholder (the "Shareholder") of First Heritage Bank, a
Pennsylvania chartered bank ("First Heritage").
RECITALS
A. Concurrently with the execution of this Agreement, CBSI, CBNA and First
Heritage entered into an Agreement and Plan of Merger (the "Merger Agreement")
which provides for the merger (the "Merger") of First Heritage with and into
CBNA. Pursuant to the Merger, shares of capital stock of First Heritage will be
converted into merger consideration, consisting of shares of common stock of
CBSI and cash in lieu of fractional shares, on the basis set forth in the Merger
Agreement.
B. The Shareholder has the legal power to vote, or to direct the voting of
(by law, contract or otherwise), such number of shares of the outstanding common
stock of First Heritage as is indicated on the final page of this Agreement (the
"Shares").
C. As a material inducement to enter into the Merger Agreement, CBSI
desires the Shareholder to agree, and the Shareholder is willing to agree, to
vote or cause to be voted, as the case may be, the Shares and any other such
shares of capital stock of First Heritage subsequently acquired by the
Shareholder so as to facilitate consummation of the Merger as provided in this
Agreement.
NOW, THEREFORE, intending to be legally bound, the parties agree as
follows:
1. Agreement to Vote Shares; Additional Purchases.
1.1 Agreement to Vote Shares. At every meeting of the shareholders of
First Heritage called with respect to the approval of the Merger Agreement
and/or the Merger, and at every adjournment thereof, and on every action or
approval by written consent of the shareholders of First Heritage with respect
to the approval of the Merger Agreement and/or the Merger, the Shareholder shall
vote, or cause to be voted, the Shares and any New Shares (as defined below) in
favor of adoption and approval of the Merger Agreement and the Merger.
1.2 Agreement to Retain Shares. The Shareholder shall not transfer,
sell, exchange, pledge or otherwise dispose of or encumber the Shares or any New
Shares; provided, however, that the Shareholder may transfer the Shares if the
transferee, prior to such transfer, executes a voting agreement with respect to
the Shares to be transferred, substantially in the form of this Agreement, and
provides such executed agreement to CBSI.
1.3 Additional Purchases. The Shareholder agrees that any shares ("New
Shares") of capital stock of First Heritage that the Shareholder purchases or
with respect to which the Shareholder otherwise acquires the power to vote, or
to direct the voting, after the execution of this Agreement and prior to the
Expiration Date (as defined below) shall be subject to the terms and conditions
of this Agreement to the same extent as if they constituted Shares.
2. Representations and Warranties of the Shareholder. The Shareholder (i)
has the legal power and authority to vote, or to direct the voting of, the
Shares, which at the date hereof are (except to the extent set forth in a
schedule delivered herewith) free and clear of any liens, options, security
interests or other similar encumbrances; (ii) does not possess the right to
vote, or to direct the voting of, any shares of capital stock of First Heritage
other than the Shares; and (iii) has full power and authority to make, enter
into and carry out the terms of this Agreement.
3. Additional Documents. The Shareholder hereby covenants and agrees to
execute and deliver any additional documents necessary, including a proxy, in
the reasonable opinion of CBSI, to carry out the purpose of this Agreement. In
the event that the Shareholder grants a proxy to CBSI to vote the Shares and the
New Shares, if any, pursuant to CBSI's request in accordance with the foregoing
sentence, the Shareholder's obligation under this Agreement to vote such shares
in favor of the Merger and/or the Merger Agreement shall be deemed fully
satisfied, unless and until at such time as such proxy is revoked or otherwise
becomes invalid or defective (provided that in each case CBSI notifies the
Shareholder in writing of such revocation, invalidity or defect and provides
instructions to Shareholder consistent with this Agreement).
4. Termination. This Agreement shall terminate and shall have no further
force or effect as of the earlier to occur of (i) such date and time as the
Merger shall become effective in accordance with the terms and provisions of the
Merger Agreement, or (ii) such date and time as the Merger Agreement shall have
been terminated pursuant to Article VII thereof (the "Expiration Date").
5. Miscellaneous.
5.1 Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, then the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
5.2 Binding Effect and Assignment. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but, except as
otherwise specifically provided herein, neither this Agreement nor any of the
rights, interests or obligations of the parties hereto may be assigned by any of
the parties without prior written consent of the other parties.
5.3 Amendments and Modification. This Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by the parties hereto.
5.4 Specific Performance; Injunctive Relief. The parties hereto
acknowledge
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that CBSI will be irreparably harmed and that there will be no adequate remedy
at law for a violation of any of the covenants or agreements of the Shareholder
set forth herein. Therefore, it is agreed that, in addition to any other
remedies that may be available to CBSI upon any such violation, CBSI shall have
the right to enforce such covenants and agreements by specific performance,
injunctive relief or by any other means available to CBSI at law or in equity.
5.5 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be effective (i) when
delivered, if delivered by hand, (ii) the next business day, if sent by
nationally recognized overnight delivery specifying next day delivery, or (iii)
three business days after depositing in the United States mails, if sent by
certified mail, postage prepaid, receipt requested, in each case, addressed to a
party's address set forth below:
If to CBSI or CBNA:
Community Bank System, Inc.
5790 Widewaters Parkway
DeWitt, New York 13214
Attention: President and Chief Executive Officer
With a required copy to:
Bond, Schoeneck & King, PLLC
One Lincoln Center
Syracuse, New York 13202
Attention: George J. Getman, Esq.
If to the Shareholder: To the address for notice set forth on the last page
hereof.
With a required copy to:
Cozen O'Connor
1900 Market Street
Philadelphia, Pennsylvania 19103
Attention: John J. Cunningham, III, Esq.
or to such other address as any party may have furnished to the other in writing
in accordance herewith.
5.6 Governing Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of New York (without
regard to the principles of conflict of laws thereof).
5.7 Entire Agreement. This Agreement contains the entire understanding
of the parties in respect of the subject matter hereof, and supersedes all prior
negotiations and understandings between the parties with respect to such subject
matter.
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5.8 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
5.9 Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
5.10 Securities Law Matters. CBSI acknowledges and agrees that neither
the execution and delivery of this Agreement by the Shareholder, nor any of the
provisions of this Agreement, shall extinguish, limit or restrict any rights or
remedies under the Securities Act of 1933, as amended, or any applicable state
securities laws that the Shareholder would have had if he entered into this
Agreement in reliance upon the registration/proxy statement filed with the SEC
in connection with the Merger.
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IN WITNESS WHEREOF, the parties have caused this Voting Agreement to be
duly executed on the date and year first above written.
COMMUNITY BANK SYSTEM, INC.
By: _______________________________________________
Title: _____________________________________________
COMMUNITY BANK, N.A.
By: _______________________________________________
Title: _____________________________________________
SHAREHOLDER:
By: ________________________________________________
By: ________________________________________________
(All owners must sign if shares are jointly owned)
Shareholder's Address for Notice:
____________________________________________________
____________________________________________________
____________________________________________________
________ Shares of First Heritage Common Stock over
which the Shareholder has the legal power to vote or
direct the voting.
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