-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, SwhOK0j0gxWmErHWUXP964EddTEzaYacihRWtKKArMO87eDsYSoPjzqRoyHrlWrz 2tK/jgDp52t+g4MUct5ldw== 0001169232-06-004341.txt : 20061108 0001169232-06-004341.hdr.sgml : 20061108 20061108115022 ACCESSION NUMBER: 0001169232-06-004341 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 20060930 FILED AS OF DATE: 20061108 DATE AS OF CHANGE: 20061108 FILER: COMPANY DATA: COMPANY CONFORMED NAME: COMMUNITY BANK SYSTEM INC CENTRAL INDEX KEY: 0000723188 STANDARD INDUSTRIAL CLASSIFICATION: NATIONAL COMMERCIAL BANKS [6021] IRS NUMBER: 161213679 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-Q SEC ACT: 1934 Act SEC FILE NUMBER: 001-13695 FILM NUMBER: 061196222 BUSINESS ADDRESS: STREET 1: 5790 WIDEWATERS PKWY CITY: DEWITT STATE: NY ZIP: 13214 BUSINESS PHONE: 8007242262 MAIL ADDRESS: STREET 1: 5790 WIDEWATERS PARKWAY CITY: DEWITT STATE: NY ZIP: 13214 10-Q 1 d69791_10-q.txt QUARTERLY REPORT UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-Q |X| QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the quarterly period ended September 30, 2006 |_| TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from _______________ to _______________ Commission File Number 001-13695 COMMUNITY BANK SYSTEM, INC. (Exact name of registrant as specified in its charter) Delaware 16-1213679 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 5790 Widewaters Parkway, DeWitt, New York 13214-1883 (Address of principal executive offices) (Zip Code) (315) 445-2282 (Registrant's telephone number, including area code) 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 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes |X| No |_|. Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer. See definition of "accelerated filer and large accelerated filer" in Rule 12b-2 of the Exchange Act. (Check one): Large accelerated filer |_| Accelerated filer |X| Non-accelerated filer |_| Indicate by check mark whether the registrant is shell company (as defined in Rule 12b-2 of the Exchange Act). Yes |_| No |X| Indicate the number of shares outstanding of each of the issuer's classes of common stock, as of the latest practicable date. 29,931,042 shares of Common Stock, $1.00 par value, were outstanding on November 2, 2006. TABLE OF CONTENTS
Page ---- Part I. Financial Information Item 1. Financial Statements (Unaudited) Consolidated Statements of Condition September 30, 2006 and December 31, 2005 ........................................................ 3 Consolidated Statements of Income Three and nine months ended September 30, 2006 and 2005 ......................................... 4 Consolidated Statement of Changes in Shareholders' Equity Nine months ended September 30, 2006 ............................................................ 5 Consolidated Statements of Comprehensive Income Three and nine months ended September 30, 2006 and 2005 ......................................... 6 Consolidated Statements of Cash Flows Nine months ended September 30, 2006 and 2005 ................................................... 7 Notes to the Consolidated Financial Statements September 30, 2006 .............................................................................. 8 Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations ........ 14 Item 3. Quantitative and Qualitative Disclosure about Market Risk .................................... 29 Item 4. Controls and Procedures ...................................................................... 30 Part II. Other Information Item 1. Legal Proceedings ............................................................................ 30 Item 1A. Risk Factors ................................................................................. 30 Item 2. Unregistered Sales of Equity Securities and Use of Proceeds .................................. 30 Item 3. Defaults Upon Senior Securities .............................................................. 30 Item 4. Submission of Matters to a Vote of Securities Holders ........................................ 30 Item 5. Other Information ............................................................................ 30 Item 6. Exhibits ..................................................................................... 31
2 Part 1. Financial Information Item 1. Financial Statements COMMUNITY BANK SYSTEM, INC. CONSOLIDATED STATEMENTS OF CONDITION (Unaudited) (In Thousands, Except Share Data)
September 30, December 31, 2006 2005 - -------------------------------------------------------------------------------------------------------------------------------- Cash and cash equivalents $ 119,430 $ 114,605 Available-for-sale investment securities, at fair value 1,105,194 1,160,612 Held-to-maturity investment securities (fair value of $140,832 and $139,512, respectively) 145,057 142,505 - -------------------------------------------------------------------------------------------------------------------------------- Total investment securities 1,250,251 1,303,117 - -------------------------------------------------------------------------------------------------------------------------------- Loans 2,661,562 2,411,769 Allowance for loan losses (35,517) (32,581) - -------------------------------------------------------------------------------------------------------------------------------- Net loans 2,626,045 2,379,188 - -------------------------------------------------------------------------------------------------------------------------------- Core deposit intangibles, net 25,226 28,147 Goodwill 213,142 195,195 Other intangibles, net 1,267 1,536 - -------------------------------------------------------------------------------------------------------------------------------- Intangible assets, net 239,635 224,878 - -------------------------------------------------------------------------------------------------------------------------------- Premises and equipment, net 65,051 65,175 Accrued interest receivable and other assets 73,578 66,029 - -------------------------------------------------------------------------------------------------------------------------------- Total assets $ 4,373,990 $ 4,152,992 ================================================================================================================================ Liabilities: Non-interest bearing deposits $ 564,262 $ 601,544 Interest bearing deposits 2,576,042 2,382,425 - -------------------------------------------------------------------------------------------------------------------------------- Total deposits 3,140,304 2,983,969 Federal funds purchased 9,900 36,300 Borrowings 618,512 536,288 Subordinated debt held by unconsolidated subsidiary trusts 80,545 80,502 Accrued interest and other liabilities 60,130 58,338 - -------------------------------------------------------------------------------------------------------------------------------- Total liabilities 3,909,391 3,695,397 - -------------------------------------------------------------------------------------------------------------------------------- Commitment and contingencies (See Note I) Shareholders' equity: Preferred stock $1.00 par value, 500,000 shares authorized, 0 shares issued -- -- Common stock, $1.00 par value, 50,000,000 shares authorized; 32,620 32,451 32,620,463 and 32,450,563 shares issued in 2006 and 2005, respectively Additional paid-in capital 200,089 196,312 Retained earnings 289,708 276,809 Accumulated other comprehensive income 3,798 8,420 Treasury stock, at cost (2,753,161 and 2,493,711 shares, respectively) (61,616) (56,074) Employee stock plan - unearned -- (323) - -------------------------------------------------------------------------------------------------------------------------------- Total shareholders' equity 464,599 457,595 - -------------------------------------------------------------------------------------------------------------------------------- Total liabilities and shareholders' equity $ 4,373,990 $ 4,152,992 ================================================================================================================================
The accompanying notes are an integral part of the consolidated financial statements. 3 COMMUNITY BANK SYSTEM, INC. CONSOLIDATED STATEMENTS OF INCOME (Unaudited) (In Thousands, Except Per-Share Data)
Three Months Ended Nine Months Ended September 30, September 30, --------------------- ----------------------- 2006 2005 2006 2005 - -------------------------------------------------------------------------------------------------- ----------------------- Interest income: Interest and fees on loans $43,482 $37,133 $121,570 $108,792 Interest and dividends on taxable investments 10,033 11,315 31,407 37,881 Interest and dividends on nontaxable investments 5,646 5,724 17,324 17,576 - -------------------------------------------------------------------------------------------------- ----------------------- Total interest income 59,161 54,172 170,301 164,249 - -------------------------------------------------------------------------------------------------- ----------------------- Interest expense: Interest on deposits 16,357 11,140 43,998 30,603 Interest on short-term borrowings 1,327 2,523 3,935 9,301 Interest on subordinated debt held by unconsolidated subsidiary trusts 1,937 1,715 5,624 4,911 Interest on long-term borrowings 5,748 3,748 15,658 10,559 - -------------------------------------------------------------------------------------------------- ----------------------- Total interest expense 25,369 19,126 69,215 55,374 - -------------------------------------------------------------------------------------------------- ----------------------- Net interest income 33,792 35,046 101,086 108,875 Less: provision for loan losses 1,300 2,275 5,175 6,284 - -------------------------------------------------------------------------------------------------- ----------------------- Net interest income after provision for loan losses 32,492 32,771 95,911 102,591 - -------------------------------------------------------------------------------------------------- ----------------------- Non-interest income: Deposit service fees 7,329 7,135 21,001 19,844 Other banking services 1,329 1,411 2,166 2,177 Benefit plan administration, consulting and actuarial fees 3,271 2,767 9,807 8,256 Trust, investment and asset management fees 1,815 1,823 5,631 5,463 Gain on sales of investment securities -- 5,305 -- 12,195 - -------------------------------------------------------------------------------------------------- ----------------------- Total non-interest income 13,744 18,441 38,605 47,935 - -------------------------------------------------------------------------------------------------- ----------------------- Operating expenses: Salaries and employee benefits 16,741 16,458 49,948 48,836 Occupancy and equipment 4,350 4,483 13,557 13,355 Data processing and communications 3,359 3,467 9,923 10,258 Amortization of intangible assets 1,520 1,553 4,502 5,521 Legal and professional fees 1,119 923 3,510 3,250 Office supplies and postage 1,004 1,024 3,063 2,914 Business development and marketing 1,095 545 2,909 2,132 Other 2,652 2,274 7,071 6,692 - -------------------------------------------------------------------------------------------------- ----------------------- Total operating expenses 31,840 30,727 94,483 92,958 - -------------------------------------------------------------------------------------------------- ----------------------- Income before income taxes 14,396 20,485 40,033 57,568 Income taxes 3,517 5,621 9,808 15,089 - -------------------------------------------------------------------------------------------------- ----------------------- Net income $10,879 $14,864 $ 30,225 $ 42,479 ================================================================================================== ======================= Basic earnings per share $ 0.36 $ 0.49 $ 1.01 $ 1.40 Diluted earnings per share $ 0.36 $ 0.48 $ 1.00 $ 1.37 Dividends declared per share $ 0.20 $ 0.19 $ 0.58 $ 0.55
The accompanying notes are an integral part of the consolidated financial statements. 4 COMMUNITY BANK SYSTEM, INC. CONSOLIDATED STATEMENT OF CHANGES IN SHAREHOLDERS' EQUITY (Unaudited) Nine Months Ended September 30, 2006 (In Thousands, Except Share Data)
Common Stock Accumulated --------------------- Additional Other Employee Shares Amount Paid-In Retained Comprehensive Treasury Stock Plan Outstanding Issued Capital Earnings Income Stock -Unearned Total --------------------------------------------------------------------------------------------- Balance at December 31, 2005 29,956,852 $32,451 $196,312 $276,809 $ 8,420 ($56,074) ($323) $457,595 Net income 30,225 30,225 Other comprehensive loss, net of tax (4,622) (4,622) Dividends declared: Common, $0.58 per share (17,326) (17,326) Common stock issued under employee stock plan, including tax benefits of $458 169,900 169 2,498 147 2,814 Employee stock options earned 1,455 1,455 Treasury stock purchased (259,450) (5,542) (5,542) Reclassification of unearned restricted stock awards to additional paid-in capital in accordance with SFAS No. 123(R) (176) 176 - ----------------------------------------------------------------------------------------------------------------------------------- Balance at September 30, 2006 29,867,302 $32,620 $200,089 $289,708 $ 3,798 ($61,616) -- $464,599 ===================================================================================================================================
The accompanying notes are an integral part of the consolidated financial statements. 5 COMMUNITY BANK SYSTEM, INC. CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME (Unaudited) (In Thousands)
Three Months Ended Nine Months Ended September 30, September 30, ---------------------- ---------------------- 2006 2005 2006 2005 - -------------------------------------------------------------------------------------------------- ---------------------- Other comprehensive loss, before tax: Change in minimum pension liability adjustment $ 0 $ 0 ($117) $ 0 Unrealized gain (loss) on securities: Unrealized holding gain (loss) arising during period 12,063 (16,842) (7,432) (20,010) Reclassification adjustment for gain included in net income 0 (5,305) 0 (12,195) - -------------------------------------------------------------------------------------------------- ---------------------- Other comprehensive gain (loss), before tax: 12,063 (22,147) (7,549) (32,205) Income tax (expense) benefit related to other comprehensive gain (loss) (4,627) 8,546 2,927 12,492 - -------------------------------------------------------------------------------------------------- ---------------------- Other comprehensive gain (loss), net of tax: 7,436 (13,601) (4,622) (19,713) Net income 10,879 14,864 30,225 42,479 - -------------------------------------------------------------------------------------------------- ---------------------- Comprehensive income $ 18,315 $ 1,263 $ 25,603 $ 22,766 ================================================================================================== ======================
The accompanying notes are an integral part of the consolidated financial statements. 6 COMMUNITY BANK SYSTEM, INC. CONSOLIDATED STATEMENTS OF CASH FLOWS (Unaudited) (In Thousands)
Nine Months Ended September 30, ------------------------ 2006 2005 - ---------------------------------------------------------------------------------------------------------------- Operating activities: Net income $ 30,225 $ 42,479 Adjustments to reconcile net income to net cash provided by operating activities: Depreciation 6,456 6,412 Amortization of intangible assets 4,502 5,521 Net amortization of premiums and discounts on securities and loans 971 772 Amortization of unearned compensation and discount on subordinated debt 95 227 Provision for loan losses 5,175 6,284 Gain on investment securities 0 (12,195) Gain on sale of loans and other assets (97) (40) Proceeds from the sale of loans held for sale 14,388 0 Origination of loans held for sale (14,347) 0 Excess tax benefits from share-based payment arrangements (245) 0 Change in other operating assets and liabilities 4,577 3,656 - ---------------------------------------------------------------------------------------------------------------- Net cash provided by operating activities 51,700 53,116 - ---------------------------------------------------------------------------------------------------------------- Investing activities: Proceeds from sales of available-for-sale investment securities 33,719 310,336 Proceeds from maturities of held-to-maturity investment securities 3,802 3,855 Proceeds from maturities of available-for-sale investment securities 88,118 98,097 Purchases of held-to-maturity investment securities (6,627) (8,294) Purchases of available-for-sale investment securities (70,909) (158,292) Net increase in loans outstanding (56,110) (58,287) Cash paid for acquisition, net of cash acquired of $1,097 and $0 (38,971) 0 Capital expenditures (4,142) (8,166) - ---------------------------------------------------------------------------------------------------------------- Net cash (used in) provided by investing activities (51,120) 179,249 - ---------------------------------------------------------------------------------------------------------------- Financing activities: Net change in demand deposits, NOW accounts and savings accounts (35,057) 11,739 Net change in time deposits 53,091 44,696 Net change in federal funds purchased (26,400) 47,600 Net change in short-term borrowings (70,000) (362,000) Change in long-term borrowings (net of payments of $91 and $148) 102,648 99,773 Issuance of common stock 2,309 2,738 Purchase of treasury stock (5,542) (24,217) Cash dividends paid (17,049) (16,425) Tax benefits from share-based payment arrangements 245 0 - ---------------------------------------------------------------------------------------------------------------- Net cash provided by (used in) financing activities 4,245 (196,096) - ---------------------------------------------------------------------------------------------------------------- Change in cash and cash equivalents 4,825 36,269 Cash and cash equivalents at beginning of period 114,605 118,405 - ---------------------------------------------------------------------------------------------------------------- Cash and cash equivalents at end of period $ 119,430 $ 154,674 ================================================================================================================ Supplemental disclosures of cash flow information: Cash paid for interest $ 66,919 $ 54,054 Cash paid for income taxes 5,621 10,446 Supplemental disclosures of non-cash financing and investing activities: Dividends declared and unpaid 5,972 5,687 Gross change in unrealized gain on available-for-sale investment securities (7,432) (32,205) Acquisitions: Fair value of assets acquired, excluding acquired cash and intangibles 208,963 0 Fair value of liabilities assumed 188,155 0
The accompanying notes are an integral part of the consolidated financial statements. 7 COMMUNITY BANK SYSTEM, INC. NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (Unaudited) September 30, 2006 NOTE A: BASIS OF PRESENTATION The interim financial data as of September 30, 2006 and for the three and nine months ended September 30, 2006 and 2005 is unaudited; however, in the opinion of the Company, the interim data includes all adjustments, consisting only of normal recurring adjustments, necessary for a fair statement of the results for the interim periods. The results of operations for the interim periods are not necessarily indicative of the results that may be expected for the full year or any other interim period. NOTE B: ACQUISITION AND OTHER MATTERS ES&L Bancorp On August 11, 2006, the Company acquired ES&L Bancorp ("Elmira"), the parent company of Elmira Savings and Loan, F.A., a federally chartered thrift in an all-cash transaction valued at approximately $40 million. Elmira operated two branches in the cities of Elmira and Ithaca, New York. The results of Elmira's operations have been included in the consolidated financial statements since that date. The estimated purchase price allocation of the assets acquired and liabilities assumed, including capitalized acquisition costs, is as follows: (000's omitted) - -------------------------------------------------------- Cash and due from banks $ 1,097 Available-for-sale investment securities 3,651 Loans net of allowance for loan losses 195,911 Premises and equipment, net 2,134 Other assets 6,170 Goodwill 17,947 Core deposits intangibles 1,313 - -------------------------------------------------------- Total assets acquired 228,223 - -------------------------------------------------------- Deposits 138,301 Borrowings 49,576 Other liabilities 278 - -------------------------------------------------------- Total liabilities assumed 188,155 - -------------------------------------------------------- Net assets acquired $ 40,068 ======================================================== ONB Corporation On August 3, 2006, the Company announced an agreement to acquire ONB Corporation ("ONB") in an all-cash transaction valued at approximately $15.7 million. ONB is the parent company of Ontario National Bank, a federally chartered national bank operating four branches in the villages of Clifton Springs, Phelps and Palmyra, New York. As of September 30, 2006 the Company held approximately $95 million in assets, including $60 million in loans. The acquisition is expected to close in the fourth quarter of 2006. Stock Repurchase Program On April 20, 2005, the Company announced a twenty-month authorization to repurchase up to 1,500,000 of its outstanding shares. Through September 30, 2006, the Company has repurchased against this authorization 853,161 shares at an aggregate cost of $19.5 million and an average price per share of $22.86. The repurchased shares will be used for general corporate purposes, including those related to stock plan activities. NOTE C: ACCOUNTING POLICIES Critical Accounting Policies Allowance for Loan Losses Management continually evaluates the credit quality of the Company's loan portfolio and performs a formal review of the adequacy of the allowance for loan losses on a quarterly basis. The allowance reflects management's best estimate of probable losses inherent in the loan portfolio. Determination of the allowance is subjective in nature and requires significant estimates. The Company's allowance methodology consists of two broad components, general and specific loan loss allocations. 8 The general loan loss allocation is composed of two calculations that are computed on four main loan segments: commercial, consumer direct, consumer indirect and residential real estate. The first calculation determines an allowance level based on the latest three years of historical net charge-off data for each loan category (commercial loans exclude balances with specific loan loss allocations). The second calculation is qualitative and takes into consideration five major factors affecting the level of loan loss risk: portfolio risk migration patterns (internal credit quality trends); the growth of the segments of the loan portfolio; economic and business environment trends in the Company's markets (includes review of bankruptcy, unemployment, population, consumer spending and regulatory trends); industry, geographical and product concentrations in the portfolio; and the perceived effectiveness of managerial resources and lending practices and policies. These two calculations are added together to determine the general loan loss allocation. The specific loan loss allocation relates to individual commercial loans that are both greater than $0.5 million and in a non-accruing status with respect to interest. Specific losses are based on discounted estimated cash flows, including any cash flows resulting from the conversion of collateral. Loan losses are charged off against the allowance, while recoveries of amounts previously charged off are credited to the allowance. A provision for loan loss is charged to operations based on management's periodic evaluation of factors previously mentioned. Income Taxes Provisions for income taxes are based on taxes currently payable or refundable, and deferred taxes which are based on temporary differences between the tax basis of assets and liabilities and their reported amounts in the financial statements. Deferred tax assets and liabilities are reported in the financial statements at currently enacted income tax rates applicable to the period in which the deferred tax assets and liabilities are expected to be realized or settled. Intangible Assets Intangible assets include core deposit intangibles, customer relationship intangibles and goodwill arising from acquisitions. Core deposit intangibles and customer relationship intangibles are amortized on either an accelerated or straight-line basis over periods ranging from 7 to 20 years. Goodwill is evaluated at least annually for impairment. The carrying value of goodwill and other intangible assets is based upon discounted cash flow modeling techniques that require management to make estimates regarding the amount and timing of expected future cash flows. It also requires use of a discount rate that reflects the current return requirements of the market in relation to present risk-free interest rates, required equity market premiums, and company-specific risk indicators. Retirement Benefits The Company provides defined benefit pension benefits and post-retirement health and life insurance benefits to eligible employees. The Company also provides deferred compensation and supplemental executive retirement plans for selected current and former employees and officers. Expense under these plans is charged to current operations and consists of several components of net periodic benefit cost based on various actuarial assumptions regarding future experience under the plans, including discount rate, rate of future compensation increases and expected return on plan assets. New Accounting Pronouncements In June 2006, the Financial Accounting Standards Board ("FASB") issued FASB Interpretation No. 48, "Accounting for Uncertainty in Income Taxes - an interpretation of FASB Statement No. 109" (FIN 48). FIN 48 clarifies the accounting for uncertainty in income taxes recognized in a company's financial statements and prescribes a recognition threshold and measurement attribute for the financial statement recognition and measurement of a tax position taken or expected to be taken in an income tax return. FIN 48 also provides guidance on derecognition, classification, interest and penalties, accounting in interim periods, disclosure and transition. FIN 48 is effective for fiscal years beginning after December 15, 2006. The Company is currently analyzing the effects FIN 48 will have on its financial statements. In March 2006, the FASB issued SFAS No. 156, "Accounting for Servicing of Financial Assets, an amendment of FASB Statement No. 140" (SFAS 158"). SFAS 156 requires all separately recognized servicing assets and servicing liabilities to be initially measured at fair value, if practicable. The standard permits an entity to subsequently measure each class of servicing assets or servicing liabilities at fair value and report changes in fair value in the statement of income in the period in which the changes occur. SFAS 156 is effective for the Company as of January 1, 2007. The Company is currently evaluating the impact of adopting SFAS 156. In September 2006, the FASB issued SFAS No. 158, "Employers' Accounting for Defined Benefit Pension and Other Postretirement Plans, an amendment of FASB Statements No. 87, 88, 106 and 132(R)" ("SFAS 158"). SFAS 158 requires an employer to recognize the funded status of defined benefit pension and other postretirement benefit plans as an asset or liability. SFAS 158 is effective for the Company as of December 31, 2006. The Company is currently evaluating the effects SFAS 158 will have on its financial statements. 9 In September 2006, the Securities and Exchange Commission issued Staff Accounting Bulletin No. 108, "Considering the Effects of Prior Year Misstatements When Quantifying Misstatements in Current Year Financial Statements" ("SAB 108"), which provides interpretive guidance on how the effects of the carryover or reversal of prior year misstatements should be considered in quantifying a current year misstatement. The provisions of SAB 108 are required in annual financial statements for fiscal year 2006. The Company does not believe that the adoption of SAB 108 will materially impact our consolidated financial statements. In September 2006, the FASB issued SFAS No. 157, "Fair Value Measurements" ("SFAS 157"). SFAS 157 does not address "what" to measure at fair value; instead, it addresses "how" to measure fair value. SFAS 157 applies (with limited exceptions) to existing standards that require assets or liabilities to be measured at fair value. SFAS 157 establishes a fair value hierarchy, giving the highest priority to quoted prices in active markets and the lowest priority to unobservable data and requires new disclosures for assets and liabilities measured at fair value based on their level in the hierarchy. SFAS 157 is effective for financial statements issued for fiscal years beginning after November 15, 2007. The Company is currently evaluating the impact of adopting SFAS 157. NOTE D: STOCK BASED COMPENSATION The Company has a long-term incentive program for directors, officers and employees. Under this program, the Company authorized 4,024,000 shares of Company common stock for the grant of incentive stock options, nonqualified stock options, restricted stock awards, retroactive stock appreciation rights, and offset options. The offset options in its Director's Stock Balance Plan vest and become exercisable immediately and expire one year after the date the director retires or two years in the event of death. The remaining options have a ten-year term, and vest and become exercisable on a grant-by-grant basis, ranging from immediate vesting to ratably over a five-year period. Activity in this long-term incentive program is as follows:
Stock Options Restricted Stock ----------------------------------- ------------------------------ Weighted Average Weighted Average Exercise Price of Grant Date Fair Outstanding Shares Outstanding Value of Shares - ----------------------------------------------------------------------------- ------------------------------ December 31, 2004 2,400,932 $15.59 34,818 $23.07 Granted 579,484 24.33 3,197 23.84 Exercised (417,824) 11.55 (16,921) 22.61 Forfeited (16,902) 17.86 0 0 - ---------------------------------------------------- ---------- Outstanding at December 31, 2005 2,545,690 18.23 21,094 23.56 Granted 392,211 23.61 0 0 Exercised (179,164) 13.65 (7,545) 23.09 Forfeited (21,296) 23.03 (4,206) 24.39 - ---------------------------------------------------- ---------- Outstanding at September 30, 2006 2,737,441 19.26 9,343 23.56 ============================================================================= ============================== Exercisable at September 30, 2006 1,851,534 $17.65 0 0 ============================================================================= ==============================
The weighted average remaining contractual term of outstanding and exercisable stock options at September 30, 2006 is 6.8 years and 6.2 years, respectively. The aggregate intrinsic value of outstanding and exercisable stock options at September 30, 2006 is $10.6 million and $9.6 million, respectively. The Company adopted Statement of Financial Accounting Standards No. 123(R), Share-Based Payment ("SFAS 123(R)"), on January 1, 2006 using the modified prospective method. Under this method, awards that are granted, modified, or settled after December 31, 2005, are measured and accounted for in accordance with SFAS 123(R). Also under this method, expense is recognized for unvested awards that were granted prior to January 1, 2006, based upon the fair value determined at the grant date under SFAS 123(R). Stock based compensation expense is recognized ratably over the requisite service period for all awards. Prior to the adoption of SFAS 123(R), the Company accounted for stock compensation under the intrinsic value method permitted by Accounting Principles Board Opinion No 25, Accounting for Stock Issued to Employees ("APB No. 25") and related interpretations. Accordingly, the Company previously recognized no compensation cost for employee stock options that were granted with an exercise price equal to the market value of the underlying common stock on the date of grant. As a result of applying the provisions of SFAS 123(R) during the three and nine months ended September 30, 2006, the Company recognized stock-based compensation expense related to incentive and non-qualified stock options of $0.4 million and $1.5 million, respectively and a related income tax benefit of $51,000 and $238,000, respectively. Compensation expense related to restricted stock recognized in the income statement for the three and nine months ended September 30, 2006 was $16,000 and $47,000, respectively. Compensation expense related to restricted stock recognized in the income statement for the three and nine months ended September 30, 2005 was $59,000 and $180,000, respectively. 10 The following table illustrates the effect on net income and earnings per share if the fair value based method established in SFAS No. 123(R) had been applied in 2005:
Three months ended Nine months ended (000's omitted except per share amounts) September 30, 2005 September 30, 2005 - ------------------------------------------------------------------------------------------------------------ Net income, as reported $14,864 $42,479 Plus: stock-based compensation expense as reported, net of tax 41 116 Less: stock-based compensation expense determined under fair value method, net of tax (332) (1,224) - ------------------------------------------------------------------------------------------------------------ Pro forma net income $14,573 $41,371 ============================================================================================================ Earnings per share: As reported: Basic $0.49 $1.40 Diluted $0.48 $1.37 Pro forma: Basic $0.48 $1.36 Diluted $0.47 $1.34
Management estimated the fair value of options granted using the Black-Scholes option-pricing model. This model was originally developed to estimate the fair value of exchange-traded equity options, which (unlike employee stock options) have no vesting period or transferability restrictions. As a result, the Black-Scholes model is not necessarily a precise indicator of the value of an option, but it is commonly used for this purpose. The Black-Scholes model requires several assumptions, which management developed based on historical trends and current market observations.
Nine months ended September 30, -------------------------------------------------------------------------- 2006 2005 -------------------------------------------------------------------------- Weighted Average Fair Value of Options Granted $ 6.10 $ 6.37 Assumptions: Weighted-average expected life (in years) 7.78 7.76 Future dividend yield 3.00% 3.00% Share price volatility 26.46% 26.78% Weighted average risk-free interest rate 4.37% 4.17% ==========================================================================
Unrecognized stock based compensation expense related to non-vested stock options totaled $4.3 million at September 30, 2006, which will be recognized as expense over the next five years. The weighted average period over which this unrecognized expense is expected to be recognized is 1.7 years. The total fair value of shares vested during the nine months ended September 30, 2006 and 2005 were $1.5 million and $1.7 million, respectively. During the nine months ended September 30, 2006 and 2005, proceeds from stock option exercises totaled $2.4 million and $3.1 million, respectively, and the related windfall tax benefits from exercise were approximately $245,000 and $694,000, respectively. During the nine months ended September 30, 2006 and 2005, 179,164 and 292,370 shares, respectively, were issued in connection with stock option exercise. All shares issued were new shares issued from available authorized shares. The total intrinsic value of options exercised during the nine months ended September 30, 2006 and 2005 were $1.5 million and $3.8 million, respectively. NOTE E: EARNINGS PER SHARE Basic earnings per share are computed based on the weighted-average common shares outstanding for the period. Diluted earnings per share are based on the weighted-average shares outstanding adjusted for the dilutive effect of the assumed exercise of stock options during the year. The dilutive effect of options is calculated using the treasury stock method of accounting. The treasury stock method determines the number of common shares that would be outstanding if all the dilutive options (average market price is greater than the exercise price) were exercised and the proceeds were used to repurchase common shares in the open market at the average market price for the applicable time period. There were 1,376,605 and 1,353,086 weighted-average anti-dilutive stock options outstanding for the three and nine months ended September 30, 2006 compared to 831,447 and 804,451 weighted-average anti-dilutive stock options outstanding for the three and nine months ended September 30, 2005. The following is a reconciliation of basic to diluted earnings per share for the three and nine months ended September 30, 2006 and 2005. 11
Per Share (000's omitted, except per share data) Income Shares Amount - ------------------------------------------------------------------------------------- Three Months Ended September 30, 2006 Basic EPS $10,879 29,932 $ 0.36 Stock options 402 - ----------------------------------------------------------------------- Diluted EPS $10,879 30,334 $ 0.36 ======================================================================= Three Months Ended September 30, 2005 Basic EPS $14,864 30,178 $ 0.49 Stock options 534 - ----------------------------------------------------------------------- Diluted EPS $14,864 30,712 $ 0.48 ======================================================================= Nine Months Ended September 30, 2006 Basic EPS $30,225 29,967 $ 1.01 Stock options 406 - ----------------------------------------------------------------------- Diluted EPS $30,225 30,373 $ 1.00 ======================================================================= Nine Months Ended September 30, 2005 Basic EPS $42,479 30,385 $ 1.40 Stock options 562 - ----------------------------------------------------------------------- Diluted EPS $42,479 30,947 $ 1.37 =======================================================================
NOTE F: INTANGIBLE ASSETS The gross carrying amount and accumulated amortization for each type of intangible asset are as follows:
As of September 30, 2006 As of December 31, 2005 ----------------------------------------- ----------------------------------------- Gross Net Gross Net Carrying Accumulated Carrying Carrying Accumulated Carrying (000's omitted) Amount Amortization Amount Amount Amortization Amount - ----------------------------------- ----------------------------------------- ----------------------------------------- Amortizing intangible assets: Core deposit intangibles $ 64,474 ($39,248) $ 25,226 $ 63,161 ($35,014) $ 28,147 Other intangibles 2,750 (1,483) 1,267 2,750 (1,214) 1,536 - ----------------------------------- ----------------------------------------- ----------------------------------------- Total amortizing intangibles 67,224 (40,731) 26,493 65,911 (36,228) 29,683 Non-amortizing intangible assets: Goodwill 213,142 0 213,142 195,195 0 195,195 - ----------------------------------- ----------------------------------------- ----------------------------------------- Total intangible assets, net $280,366 ($40,731) $239,635 $261,106 ($36,228) $224,878 =================================== ========================================= =========================================
No goodwill impairment adjustments were recognized in 2006 or 2005. The estimated aggregate amortization expense for each of the succeeding fiscal years ended December 31 is as follows: (000's omitted) Amount - ----------------------------- Oct-Dec 2006 $ 1,551 2007 5,847 2008 5,503 2009 4,982 2010 3,133 Thereafter 5,477 - --------------- ------- Total $26,493 =============== ======= 12 NOTE G: MANDATORILY REDEEMABLE PREFERRED SECURITIES The Company sponsors three business trusts, Community Capital Trust I, Community Capital Trust II, and Community Statutory Trust III, of which 100% of the common stock is owned by the Company. The trusts were formed for the purpose of issuing company-obligated mandatorily redeemable preferred securities to third-party investors and investing the proceeds from the sale of such preferred securities solely in junior subordinated debt securities of the Company. The debentures held by each trust are the sole assets of that trust. Distributions on the preferred securities issued by each trust are payable semi-annually or quarterly at a rate per annum equal to the interest rate being earned by the trust on the debentures held by that trust. The preferred securities are subject to mandatory redemption, in whole or in part, upon repayment of the debentures. The Company has entered into agreements which, taken collectively, fully and unconditionally guarantee the preferred securities subject to the terms of each of the guarantees. The terms of the preferred securities of each trust are as follows:
Issuance Par Maturity Date Amount Interest Rate Date Call Provision Call Price - ------------------------------------------------------------------------------------------------------------------------------------ I 2/3/1997 $30 million 9.75% 2/03/2027 10 year beginning 2007 104.5400% declining to par in 2017 II 7/16/2001 $25 million 6 month LIBOR plus 3.75% (9.30%) 7/16/2031 5 year beginning 2006 107.6875% declining to par in 2011 III 7/31/2001 $24.5 million 3 month LIBOR plus 3.58% (9.07%) 7/31/2031 5 year beginning 2006 107.5000% declining to par in 2011 ====================================================================================================================================
NOTE H: BENEFIT PLANS The Company provides defined benefit pension benefits and post-retirement health and life insurance benefits to eligible employees. The Company also provides supplemental pension retirement benefits for several current and former key employees. The Company accrues for the estimated cost of these benefits through charges to expense during the years that employees earn these benefits. The net periodic benefit cost for the three and nine months ended September 30 is as follows:
Pension Benefits Post-retirement Benefits --------------------------------------------- ----------------------------------------- Three Months Ended Nine Months Ended Three Months Ended Nine Months Ended September 30, September 30, September 30, September 30, ------------------ --------------------- ------------------- ------------------ (000's omitted) 2006 2005 2006 2005 2006 2005 2006 2005 - ----------------------------------------------------------- --------------------- ------------------- ------------------ Service cost $ 719 $ 641 $ 2,216 $ 1,922 $130 $110 $391 $330 Interest cost 635 651 1,902 1,953 119 104 355 311 Expected return on plan assets (827) (877) (2,482) (2,631) 0 0 0 0 Net amortization and deferral 270 318 900 953 27 19 81 58 Amortization of prior service cost 13 29 (71) 89 27 28 82 82 Amortization of transition obligation $ 0 0 0 0 10 10 31 31 - ----------------------------------------------------------- --------------------- ------------------- ------------------ Net periodic benefit cost $ 810 $ 762 $ 2,465 $ 2,286 $313 $271 $940 $812 =========================================================== ===================== =================== ==================
The Company is not required for regulatory purposes to make a contribution to its defined benefit pension plan. NOTE I: COMMITMENTS, CONTINGENT LIABILITIES AND RESTRICTIONS The Company is a party to financial instruments with off-balance-sheet risk in the normal course of business to meet the financing needs of its customers. These financial instruments consist primarily of commitments to extend credit and standby letters of credit. Commitments to extend credit are agreements to lend to customers, generally having fixed expiration dates or other termination clauses that may require payment of a fee. These commitments consist principally of unused commercial and consumer credit lines. Standby letters of credit generally are contingent upon the failure of the customer to perform according to the terms of an underlying contract with a third party. The credit risks associated with commitments to extend credit and standby letters of credit are essentially the same as that involved with extending loans to customers and are subject to normal credit policies. Collateral may be obtained based on management's assessment of the customer's creditworthiness. The contract amount of commitment and contingencies are as follows: September 30, December 31, (000's omitted) 2006 2005 - -------------------------------------------------------------------- Commitments to extend credit $437,628 $434,640 Standby letters of credit 24,337 25,638 - -------------------------------------------------------------------- Total $461,965 $460,278 ==================================================================== 13 Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations Introduction This Management's Discussion and Analysis of Financial Condition and Results of Operations ("MD&A") primarily reviews the financial condition and results of operations of Community Bank System, Inc. ("the Company" or "CBSI") as of and for the three and nine months ended September 30, 2006 and 2005, although in some circumstances the second quarter of 2006 is also discussed in order to more fully explain recent trends. The following discussion and analysis should be read in conjunction with the Company's Consolidated Financial Statements and related notes that appear on pages 3 through 13. All references in the discussion to the financial condition and results of operations are to those of the Company and its subsidiaries taken as a whole. Unless otherwise noted, the term "this year" refers to results in calendar year 2006, "third quarter" refers to the quarter ended September 30, 2006, earnings per share ("EPS") figures refer to diluted EPS, and net interest income and net interest margin are presented on a fully tax-equivalent ("FTE") basis. This MD&A contains certain forward-looking statements with respect to the financial condition, results of operations and business of the Company. These forward-looking statements involve certain risks and uncertainties. Factors that may cause actual results to differ materially from those proposed by such forward-looking statements are set herein under the caption, "Forward-Looking Statements," on page 28. Critical Accounting Policies As a result of the complex and dynamic nature of the Company's business, management must exercise judgment in selecting and applying the most appropriate accounting policies for its various areas of operations. The policy decision process not only ensures compliance with the latest generally accepted accounting principles, but also reflects on management's discretion with regard to choosing the most suitable methodology for reporting the Company's financial performance. It is management's opinion that the accounting estimates covering certain aspects of the business have more significance than others due to the relative importance of those areas to overall performance, or the level of subjectivity in the selection process. These estimates affect the reported amounts of assets and liabilities and disclosures of revenues and expenses during the reporting period. Actual results could differ from those estimates. Management believes that critical accounting estimates include: o Allowance for loan losses - The allowance for loan losses reflects management's best estimate of probable losses inherent in the loan portfolio. Determination of the allowance is inherently subjective. It requires significant estimates including the amounts and timing of expected future cash flows on impaired loans and the amount of estimated losses on pools of homogeneous loans which is based on historical loss experience and consideration of current economic trends, all of which may be susceptible to significant change. o Actuarial assumptions associated with pension, post-retirement and other employee benefit plans - These assumptions include discount rate, rate of future compensation increases and expected return on plan assets. o Provision for income taxes - The Company is subject to examinations from various taxing authorities. Such examinations may result in challenges to the tax return treatment applied by the Company to specific transactions. Management believes that the assumptions and judgements used to record tax related assets or liabilities have been appropriate. Should tax laws change or the taxing authorities determine that management's assumptions were inappropriate an adjustment may be required which could have a material effect on the Company's results of operations. o Carrying value of goodwill and other intangible assets - The carrying value of goodwill and other intangible assets is based upon discounted cash flow modeling techniques that require management to make estimates regarding the amount and timing of expected future cash flows. It also requires use of a discount rate that reflects the current return requirements of the market in relation to present risk-free interest rates, required equity market premiums, and company-specific risk indicators. A summary of the accounting policies used by management is disclosed in Note A, "Summary of Significant Accounting Policies" on pages 44-49 of the most recent Form 10-K (fiscal year ended December 31, 2005). 14 Executive Summary The Company's business philosophy is to operate as a community bank with local decision-making, principally in non-metropolitan markets, providing a broad array of banking and financial services to retail, commercial and municipal customers. The Company's core operating objectives are: (i) grow the branch network, primarily through a disciplined acquisition strategy, and certain selective de novo expansions, (ii) build high-quality, profitable loan and deposit portfolios using both organic and acquisition strategies, (iii) increase the non-interest income component of total revenues through development of banking-related fee income, growth in existing financial services business units, and the acquisition of additional financial services and banking businesses, and (iv) utilize technology to deliver customer-responsive products and services and to reduce operating costs. Significant factors management reviews to evaluate achievement of the Company's operating objectives and its operating results and financial condition include, but are not limited to: net income and earnings per share, return on assets and equity, net interest margins, non-interest income, operating expenses, asset quality, loan and deposit growth, capital management, performance of individual banking and financial services units, liquidity and interest rate sensitivity, enhancements to customer products and services, technology enhancements, market share, peer comparisons, and the performance of acquisition and integration activities. On August 11, 2006, the Company completed its acquisition of ES&L Bancorp, Inc. ("Elmira"), a $210 million asset bank based in Elmira, New York, in an all-cash transaction valued at approximately $40 million. Third quarter and September year-to-date ("YTD") earnings per share were $0.36 and $1.00, respectively, a decrease of $0.12 and $0.37 as compared to the respective prior year periods. The decrease was driven by a higher cost of funds, lower investment interest income, stock option expense as a result of the adoption of Statement of Financial Accounting Standards (SFAS) 123(R), Share-Based Payment, and the absence of gains on the sale of investment securities recorded in the third quarter and first nine months of 2005. These were partially offset by higher loan interest income and higher non-interest income (excluding gain on sales of investment securities). Cash earnings per share (which excludes the after-tax effect of the amortization of intangibles assets and acquisition-related market value adjustments) were $0.40 versus $0.53 for the prior year's third quarter and $0.37 for the second quarter of 2006. Asset quality continued to improve in the third quarter of 2006 in comparison to the first two quarters of 2006 and the same period last year, with reductions in the net charge-off, non-performing loan and total delinquent loan ratios. The Company experienced year-over-year loan growth in all portfolios: consumer installment, consumer mortgage and business lending, due to both the Elmira acquisition and organic loan growth. The size of the investment portfolio was below that of third quarter of the prior year as the Company repositioned its balance sheet in 2005 by selling certain securities in its investment portfolio and using the proceeds to pay off variable and short-term borrowings. Average deposits increased in the third quarter of 2006 as compared to the second quarter of 2006 and the third quarter of 2005, again due to both organic growth and the Elmira acquisition. External borrowings, principally overnight borrowings and other short-term instruments, increased during the same time periods, due to the funding requirements of Elmira. On August 3, 2006, the Company announced an agreement to acquire ONB Corporation (ONB) in an all-cash transaction valued at approximately $15.7 million. ONB is the parent company of Ontario National Bank, a federally chartered national bank operating four branches in the villages of Clifton Springs, Phelps and Palmyra, New York. As of September 30, 2006, ONB held approximately $95 million in assets, including $60 million in loans. The acquisition is expected to close in the fourth quarter of 2006. Net Income and Profitability As shown in Table 2, earnings per share for the third quarter and September YTD of $0.36 and $1.00, respectively, were $0.12 and $0.37 lower than the EPS generated in the same periods of last year. Net income for the quarter of $10.9 million was 27% lower than the third quarter of 2005 and net income of $30.2 million for the first nine months of 2006 decreased 29% from the amount earned in the first nine months of 2005. As compared to the second quarter of 2006, net income increased $1.0 million or 10.1% and earnings per share increased $0.03 or 9.1%. Third quarter net interest income of $33.8 million was down $1.3 million or 3.6% from the comparable prior year period, while net interest income for the first nine months of 2006 decreased $7.8 million or 7.2% over the first nine months of 2005. The provision for loan losses decreased $1.0 million or 43% as compared to the third quarter of 2005 and decreased $1.1 million or 18% for the first nine months of 2006 compared to the equivalent period of 2005 as a result of strong asset quality. Third quarter non-interest income, excluding securities gains, was $13.7 million, up $0.6 million (4.6%) from third quarter 2005 and the YTD amount of $38.6 million rose $2.9 million or 8.0% from the prior year level. There were no security gains recorded in 2006, while the third quarter and YTD periods of 2005 included $5.3 million and $12.2 million of net gains, respectively. Operating expenses of $31.8 million for the quarter and $94.5 million for the first nine months of 2006 were up 3.6% and 1.6%, respectively, from the comparable prior year periods. 15 Excluding the impact of adopting SFAS 123(R), Share-Based Payment, total operating expenses for the third quarter increased 2.3% versus the prior year and were consistent for the YTD periods. In addition to the earnings results presented above in accordance with generally accepted accounting principles ("GAAP"), the Company provides cash earnings per share, which excludes the after-tax effect of the amortization of intangible assets and acquisition-related market value adjustments. Management believes that this information helps investors better understand the effect of acquisition activity in reported results. Cash earnings per share for the third quarter and the first nine months of 2006 were $0.40 and $1.13, respectively, down 25% and 26% from the $0.53 and $1.52 earned in the comparable periods of 2005. As reflected in Table 2, the primary reasons for lower earnings in both periods were lower net interest income, gains on sales of investment securities and slightly higher operating expenses, partially offset by increases in non-interest income excluding securities gain and a lower loan loss provision. The decrease in net interest income for both periods was due to a higher cost of funds and lower average investment balances, partially offset by both acquired and organic loan growth and higher loan yields. Excluding security gains, non-interest income increased due to a strong performance by the employee benefits consulting and plan administration business and higher banking service fees. The decrease in security gains was due to $5.3 million and $12.2 million of gains on the sale of securities recognized in the third quarter and first nine months of 2005, respectively, with no corresponding gains in the comparable period of 2006. Improved net charge-off and non-performing loan ratios were the primary reasons for the decrease in loan loss provision, despite an increase in total loans outstanding. Excluding stock option costs, operating expenses increased for the quarter primarily due to higher business development and marketing expenditures as well as costs associated with the Elmira acquisition, partially offset by reductions in customer processing costs and occupancy costs. A reconciliation of GAAP-based earnings results to cash-based earnings results and a condensed income statement are as follows: Table 1: Reconciliation of GAAP Net Income to Cash Net Income
Three Months Ended Nine Months Ended September 30, September 30, ----------------------- ----------------------- (000's omitted) 2006 2005 2006 2005 ------------------------------------ ----------------------- ----------------------- Net income $10,879 $14,864 $30,225 $42,479 After-tax cash adjustments: Amortization of premium on net assets acquired in merger 200 222 612 436 Amortization of intangible assets 1,149 1,119 3,399 4,074 ------------------------------------ ----------------------- ----------------------- Net income - cash $12,228 $16,205 $34,236 $46,989 ==================================== ======================= =======================
Table 2: Summary Income Statements
Three Months Ended Nine Months Ended September 30, September 30, ----------------------- ------------------------- (000's omitted, except per share data) 2006 2005 2006 2005 --------------------------------------------- ----------------------- ------------------------- Net interest income $33,792 $35,046 $101,086 $108,875 Provision for loan losses 1,300 2,275 5,175 6,284 Non-interest income excluding security gains 13,744 13,136 38,605 35,740 Gains on sales of investment securities 0 5,305 0 12,195 Operating expenses 31,840 30,727 94,483 92,958 --------------------------------------------- ----------------------- ------------------------- Income before taxes 14,396 20,485 40,033 57,568 Income taxes 3,517 5,621 9,808 15,089 --------------------------------------------- ----------------------- ------------------------- Net income $10,879 $14,864 $ 30,225 $ 42,479 ============================================= ======================= ========================= Diluted earnings per share $ 0.36 $ 0.4 $ 1.00 $ 1.37 Diluted earnings per share - cash (1) $ 0.40 $ 0.5 $ 1.13 $ 1.52
(1) Cash earnings are reconciled to GAAP net income in Table 1. 16 Net Interest Income Net interest income is the amount by which interest and fees on earning assets (loans, investments and cash) exceed the cost of funds, primarily interest paid to the Company's depositors and interest on external borrowings. Net interest margin is the difference between the gross yield on earning assets and the cost of interest-bearing funds as a percentage of earning assets. As shown in Table 3, net interest income (with non-taxable income converted to a fully tax-equivalent basis) for third quarter 2006 was $37.6 million, down $1.0 million or 2.7% from the same period last year. A $103.4 million increase in interest-bearing liabilities and a 19 basis point decrease in the net interest margin more than offset a $72.3 million increase in average interest-earning assets. As reflected in Table 4, the volume and rate increases to interest bearing liabilities had a $6.2 million negative impact on net interest income, while the volume and rate increases to interest bearing assets had a smaller $5.2 million favorable impact to net interest income. September 2006 YTD net interest income of $112.1 million was down $7.7 million or 6.4% from the year-earlier period. A $55.7 million decrease in earning assets and a 21 basis point decrease in the net interest margin more than offset a $66.3 million decrease in interest bearing liabilities. Interest bearing asset and liability volume changes resulted in $1.7 million less net interest income, while a lower net interest margin had a negative $5.9 million impact on net interest income. Higher third quarter and September YTD average loan balances were attributable to $55.7 million of quarterly average organic loan growth since the third quarter of 2005, driven by growth in all portfolios: consumer installment, consumer mortgage and business lending, as well as a $105.0 million increase in third quarter 2006 average loans from the Elmira acquisition. Average investments for the third quarter and YTD periods were $110 million and $170 million less than the respective periods of 2005. The decrease was principally a result of the Company's decision to sell certain securities and not fully reinvest cash flows from maturing securities in a flat yield-curve environment, in order to take advantage of market conditions to shorten the average life of the portfolio, improve its interest-rate sensitivity profile in a rising-rate environment, and maximize the expected total return. In comparison to the prior year, total average deposits were up $110.2 million or 3.7% for the quarter and $65.8 million or 2.2% for the YTD period as a result of growth in both IPC and public fund balances. Average deposits acquired in the Elmira acquisition for the third quarter and YTD periods were $68.1 million and $22.9 million, respectively. Cash flows from the investment sales and maturities were used to pay down external borrowings over the last twelve months, resulting in average quarterly and YTD borrowings being $50.5 million and $152.2 million lower in the third quarter of 2006 and the first nine months of 2006, in comparison to the comparable 2005 periods. The net interest margin of 3.87% for the third quarter and 3.98% for the year to date period dropped 19 basis points and 21 basis points, respectively, versus the same periods in the prior year. These declines were primarily attributable to an increase in the cost of funds (quarter up 63 basis points, YTD up 55 basis points), due principally to the effect of the eight rate hikes (25 basis points each) by the Federal Reserve since September 2005, while earning assets yields increased at a slower rate (quarter up 42 basis points, YTD up 31 basis points). The change in the earning-asset yield was driven by an increase in loan yields of 60 basis points for the quarter and 45 basis points for the YTD period, while investment yields increased 5 basis points for the quarter and three basis points for the YTD period. Results included the impact of the Elmira acquisition, which had lower net interest margin attributes than the Company's historical averages. The third quarter cost of funds increased 63 basis points due to a 62 basis point increase in deposit costs and a 96 basis point increase in the average interest rate paid on external borrowings. The increase in the YTD cost of funds was driven by a 56 basis point increase in deposit costs and borrowing rates that were up 108 basis points. Interest rates on selected categories of deposit accounts were raised throughout 2005 and the first nine months of 2006 in response to the Federal Reserve rate increases. Additionally, customers continued to transfer funds from low rate and non-interest earning accounts to higher yielding checking and time deposit accounts. The increase in the borrowing rates is mostly attributable to the rate increases by the Federal Reserve. Additionally, the long-term rate was impacted by the more than 100 basis point increase in three and six month LIBOR (London Interbank Offered Rates) over the last twelve months, from which the interest rate on the majority of the mandatorily redeemable preferred securities is based. 17 Table 3 below sets forth information related to average interest-earning assets and interest-bearing liabilities and their associated yields and rates for the periods indicated. Interest income and yields are on a fully tax-equivalent basis using marginal income tax rates of 38.4% in 2006 and 38.6% in 2005. Average balances are computed by summing the daily ending balances in a period and dividing by the number of days in that period. Loan yields and amounts earned include loan fees. Average loan balances include non-accrual loans and loans held for sale. Table 3: Quarterly Average Balance Sheet
Three Months Ended Three Months Ended (000's omitted except yields and rates) September 30, 2006 September 30, 2005 - ----------------------------------------------------------------------------------------------------------------------------------- Avg. Avg. Average Yield/Rate Average Yield/Rate Balance Interest Paid Balance Interest Paid - ----------------------------------------------------------------------------------------------------------------------------------- Interest-earning assets: Time deposits in other banks $ 34,264 $ 431 4.99% $ 13,105 $ 106 3.20% Taxable investment securities (1) 741,764 10,031 5.37% 840,872 11,581 5.46% Non-taxable investment securities (1) 512,721 8,823 6.83% 523,212 8,753 6.64% Loans (net of unearned discount) 2,558,137 43,640 6.77% 2,397,410 37,265 6.17% --------------------- --------------------- Total interest-earning assets 3,846,886 62,925 6.49% 3,774,599 57,705 6.07% ------- ------- Non-interest earning assets 425,828 456,167 ---------- ---------- Total assets $4,272,714 $4,230,766 ========== ========== Interest-bearing liabilities: Interest checking, savings and money market deposits $1,161,076 3,186 1.09% $1,168,047 2,352 0.80% Time deposits 1,379,074 13,171 3.79% 1,218,291 8,788 2.86% Short-term borrowings 125,013 1,327 4.21% 338,405 2,523 2.96% Long-term borrowings 534,811 7,685 5.70% 371,877 5,463 5.83% --------------------- --------------------- Total interest-bearing liabilities 3,199,974 25,369 3.15% 3,096,620 19,126 2.45% ------- ------- Non-interest bearing liabilities: Demand deposits 558,060 601,702 Other liabilities 57,684 63,885 Shareholders' equity 456,996 468,559 ---------- ---------- Total liabilities and shareholders' equity $4,272,714 $4,230,766 ========== ========== Net interest earnings $37,556 $38,579 ======= ======= Net interest spread 3.34% 3.62% Net interest margin on interest-earnings assets 3.87% 4.06% Fully tax-equivalent adjustment $ 3,764 $ 3,533
(1) Averages for investment securities are based on historical cost basis and the yields do not give effect to changes in fair value that is reflected as a component of shareholders' equity and deferred taxes. 18 Table 3a: Year-to-Date Average Balance Sheet
Nine Months Ended Nine Months Ended (000's omitted except yields and rates) September 30, 2006 September 30, 2005 - ------------------------------------------------------------------------------------------------------------------------------------ Avg. Avg. Average Yield/Rate Average Yield/Rate Balance Interest Paid Balance Interest Paid - ------------------------------------------------------------------------------------------------------------------------------------ Interest-earning assets: Time deposits in other banks $ 24,917 $ 910 4.88% $ 8,664 $ 190 2.94% Taxable investment securities (1) 764,116 31,715 5.55% 918,230 38,780 5.65% Non-taxable investment securities (1) 517,680 26,689 6.89% 533,436 26,990 6.76% Loans (net of unearned discount) 2,462,185 121,962 6.62% 2,364,296 109,132 6.17% --------------------- --------------------- Total interest-earning assets 3,768,898 181,276 6.43% 3,824,626 175,092 6.12% -------- -------- Non-interest earning assets 426,721 480,693 ---------- ---------- Total assets $4,195,619 $4,305,319 ========== ========== Interest-bearing liabilities: Interest checking, savings and money market deposits $1,139,608 8,475 0.99% $1,178,517 6,493 0.74% Time deposits 1,331,294 35,523 3.57% 1,206,555 24,110 2.67% Short-term borrowings 138,578 3,935 3.80% 412,141 9,301 3.02% Long-term borrowings 504,507 21,282 5.64% 383,113 15,470 5.40% --------------------- --------------------- Total interest-bearing liabilities 3,113,987 69,215 2.97% 3,180,326 55,374 2.33% -------- -------- Non-interest bearing liabilities: Demand deposits 571,088 591,124 Other liabilities 54,692 64,384 Shareholders' equity 455,852 469,485 ---------- ---------- Total liabilities and shareholders' equity $4,195,619 $4,305,319 ========== ========== Net interest earnings $112,061 $119,718 ======== ======== Net interest spread 3.46% 3.79% Net interest margin on interest-earnings assets 3.98% 4.19% Fully tax-equivalent adjustment $ 10,975 $ 10,843
(1) Averages for investment securities are based on historical cost basis and the yields do not give effect to changes in fair value that is reflected as a component of shareholders' equity and deferred taxes. 19 As discussed above and disclosed in Table 4 below, the quarterly change in net interest income (fully tax-equivalent basis) may be analyzed by segregating the volume and rate components of the changes in interest income and interest expense for each underlying category. Table 4: Rate/Volume
Nine Months Ended September 30, 2006 3rd Quarter 2006 versus 3rd Quarter 2005 versus September 30, 2005 ------------------------------------------ ------------------------------------------ Increase (Decrease) Due to Change in (1) Increase (Decrease) Due to Change in (1) ------------------------------------------ ------------------------------------------ Volume Rate Net Change Volume Rate Net Change ------------------------------------------ ------------------------------------------ (000's omitted) Interest earned on: Time deposits in other banks $ 242 $ 83 $ 325 $ 532 $ 188 $ 720 Taxable investment securities (1,344) (206) (1,550) (6,407) (658) (7,065) Non-taxable investment securities (177) 248 71 (806) 505 (301) Loans (net of unearned discount) 2,597 3,777 6,374 4,638 8,192 12,830 Total interest-earning assets (2) 1,122 4,098 5,220 (2,580) 8,764 6,184 Interest paid on: Interest checking, savings and money market deposits (14) 848 834 (221) 2,203 1,982 Time deposits 1,269 3,114 4,383 2,690 8,723 11,413 Short-term borrowings (1,993) 797 (1,196) (7,320) 1,954 (5,366) Long-term borrowings 2,342 (120) 2,222 5,093 719 5,812 Total interest-bearing liabilities (2) 657 5,586 6,243 (1,177) 15,018 13,841 Net interest earnings (2) $ 729 $(1,752) $(1,023) $(1,724) $ (5,933) $ (7,657)
(1) The change in interest due to both rate and volume has been allocated in proportion to the relationship of the absolute dollar amounts of change in each. (2) Changes due to volume and rate are computed from the respective changes in average balances and rates and are not a summation of the changes of the components. 20 Non-interest Income The Company's sources of non-interest income are of three primary types: general banking services related to loans, deposits and other core customer activities typically provided through the branch network; employee benefit plan administration, actuarial and consulting services (BPA-Harbridge), trust services, investment and insurance products (Community Investment Services, Inc. or CISI) and asset management (Nottingham Advisors or Nottingham); and periodic transactions, most often net gains (losses) from the sale of investment securities and prepayment of term debt. Table 5: Non-interest Income
Three Months Ended Nine Months Ended September 30, September 30, (000's omitted) 2006 2005 2006 2005 ------------------------------------------------------ ---------------------- ---------------------- Deposit service charges and fees $ 7,329 $ 7,135 $21,001 $19,844 Benefit plan administration, consulting and actuarial fees 3,271 2,767 9,807 8,256 Trust, investment and asset management fees 1,815 1,823 5,631 5,463 Other banking services 1,113 1,122 1,706 1,779 Mortgage banking 216 289 460 398 ------------------------------------------------------ ---------------------- ---------------------- Subtotal 13,744 13,136 38,605 35,740 Gain on sales of investment securities 0 5,305 0 12,195 ------------------------------------------------------ ---------------------- ---------------------- Total non-interest income $13,744 $18,441 $38,605 $47,935 ====================================================== ====================== ====================== Non-interest income/total income (FTE) 26.8% 32.3% 25.6% 28.6%
As displayed in Table 5, non-interest income (excluding securities gains) was $13.7 million in the third quarter and $38.6 million for the first nine months of 2006. This corresponded to increases of $0.6 million (4.6%) for the quarter and $2.9 million (8.0%) for the YTD period in comparison to one year earlier. A significant portion of the growth in both time intervals was attributable to the $0.2 million and $1.2 million increases in recurring bank fees for the quarter and year-to-date periods, respectively, driven by several revenue enhancement initiatives put into place during 2005 and core deposit account growth. Offsetting these increases, was the absence of gains on the sales of investment securities which equaled $5.3 million and $12.2 million for the third quarter and first nine months of 2005, respectively, as the Company took advantage of market conditions to sell certain securities in the first nine months of 2005 in order to shorten the average length of the portfolio and maximize their expected total return. Consistent with prior years, other banking revenues for the third quarter include the annual dividends from creditor insurance programs in which the Company participates approximating $0.9 million. Strong performance at BPA-Harbridge generated revenue growth of $0.5 million (18%) for the quarter and $1.6 million (19%) for the first nine months of 2006, achieved primarily through enhanced service offerings to both new and existing clients. In comparison to the third quarter of the prior year, trust, investment and asset management fees were down due to softer demand for their traditional investment products. Year-to-date, trust, investment and asset management fees have increased as compared to the first nine months of 2005, as a result of development of new client relationships and improved market conditions. During the third quarter, our wealth management and advisory firm completed its re-branding efforts to become Nottingham Advisors, to underscore the increased product and service offerings it has recently developed. The ratio of non-interest income to total income (FTE basis) was 26.8% for the quarter and 25.6% for the year-to-date period versus 32.3% and 28.6% for the comparable periods in 2005. Excluding net security gains, the ratio of non-interest income to total income (FTE basis) was 26.8% and 25.6% for the third quarter and YTD periods of 2006, respectively, as compared to 25.4% and 23.0% for the same periods of 2005. This improvement is a function of rising non-interest banking and financial services income (excluding net security gains), combined with lower net interest income, attributable to reduced investment portfolio levels and a decline in the net interest margin. 21 Operating Expenses Table 6 below sets forth the quarterly results of the major operating expense categories for the current and prior year, as well as efficiency ratios (defined below), a standard measure of overhead utilization used in the banking industry. Table 6: Operating Expenses
Three Months Ended Nine Months Ended September 30, September 30, (000's omitted) 2006 2005 2006 2005 ---------------------------------------------- ------------------------ ------------------------ Salaries and employee benefits $16,332 $16,458 $48,735 $48,836 Stock option expense 409 0 1,456 0 Occupancy and equipment 4,350 4,483 13,557 13,355 Data processing and communications 3,359 3,467 9,923 10,258 Amortization of intangible assets 1,520 1,553 4,502 5,521 Legal and professional fees 1,119 923 3,267 3,250 Office supplies and postage 1,004 1,024 3,063 2,914 Business development and marketing 1,095 545 2,909 2,132 Other 2,652 2,274 7,071 6,692 ---------------------------------------------- ------------------------ ------------------------ Total operating expenses $31,840 $30,727 $94,483 $92,958 ============================================== ======================== ======================== Operating expenses/average assets 2.96% 2.88% 3.01% 2.89% Efficiency ratio 58.8% 56.4% 59.6% 56.2%
As shown in Table 6, third quarter 2006 operating expenses were $31.8 million, up $1.1 million or 3.6% from the prior year level and year-to-date operating expenses of $94.5 million rose $1.5 million or 1.6% compared to 2005. Excluding the effect of adopting SFAS 123(R), Share-Based Payment, operating expenses increased $0.7 million or 2.3% for the third quarter and were essentially flat with the first nine months of 2006 as compared to the prior year periods. The increase was primarily attributable to an increased level of business development and marketing expenses ($0.6 million for the quarter and $0.8 million YTD) associated with a bank-wide deposit generation program, an increased level of acquisition related costs ($0.2 million for the quarter and $0.1 million for the YTD) as well as a month and a half of incremental operating expense related to the Elmira acquisition ($0.2 million for both the quarter and YTD), partially offset by a reduction in the amortization of intangible assets (no impact for the quarter, $1.0 million YTD) and a reduction in data processing and communication expenses ($0.1 million for the quarter, $0.3 million YTD). The Company successfully managed all aspects of its operating expense structure in the first nine months of 2006, resulting in operating expense, excluding the effect of adopting SFAS 123(R) and acquisition related expense, decreasing slightly as compared to the year earlier period. During 2006, the Company consolidated three of its branch offices into nearby sister branches. This realignment will reduce market overlap and further strengthen its branch network, and reflects management's focus on achieving long-term performance improvements through proactive strategic decision-making. The Company's efficiency ratio (recurring operating expense excluding intangible amortization divided by the sum of net interest income (FTE) and recurring non-interest income) was 58.8% for the third quarter, 2.4 percentage points above the comparable quarter of 2005. This resulted from operating expenses (as described above) increasing 3.4% primarily due to stock option expense, while recurring operating income decreased 0.8% due to $1.0 million lower net interest income, partially offset by a $0.5 million increase in non-interest income excluding security gains. The efficiency ratio for the third quarter of 2006, excluding stock option expense was 58.0%, as compared to 56.4% in the comparable third quarter of 2005. The efficiency ratio of 59.6% for the first nine months of 2006 was up 3.4 percentage points from a year earlier due to core operating expenses increasing 2.8% while recurring operating income decreased 3.1% primarily as a result of the planned reduction of investment securities and a lower net interest margin. Operating expenses as a percentage of average assets increased eight basis points and 12 basis points for the quarter and year to date periods, respectively, primarily driven by the decrease in the investment portfolio during the comparable time periods. Income Taxes The third quarter effective income tax rate was 24.4%, compared to the 27.4% effective tax rate in the third quarter of 2005. The year-to-date effective tax rate was 24.5% as compared to 26.2% for the first nine months of 2005. The lower effective tax rate for 2006 was principally a result of a higher proportion of income being generated from tax-exempt securities and loans. 22 Investments As reflected in Table 7 below, the carrying value of investments (including unrealized gains on available-for-sale securities) was $1.25 billion at the end of the third quarter, a decrease of $53 million and $68 million from December 31, 2005 and September 30, 2005, respectively. The book value (excluding unrealized gains) of investments decreased $45 million from year-end 2005 and declined $51 million versus September 30, 2005. Over the last twelve months, the investment portfolio has been allowed to run off in the current flat yield curve environment. Cash flows have been used to support loan growth and repay borrowings until more advantageous investment opportunities become available. The overall mix of securities within the portfolio over the last year has remained relatively consistent, with a small increase in the proportion of obligations of state and political subdivisions and mortgage-backed securities, and a corresponding decrease in the proportion of U.S. Treasury and Agency securities. The change in the carrying value of investments is impacted by the amount of net unrealized gains in the available for sale portfolio at a point in time. At September 30, 2006, the portfolio had a $6.3 million net unrealized gain, a decrease of $7.4 million and $17.3 million from the unrealized gain at December 31, 2005 and September 30, 2005, respectively. This fluctuation is indicative of the interest rate movements during the respective time periods and the reduction in the size of the portfolio. Table 7: Investments
September 30, 2006 December 31, 2005 September 30, 2005 ------------------------- ------------------------- ------------------------- Amortized Amortized Amortized Cost/Book Fair Cost/Book Fair Cost/Book Fair (000's omitted) Value Value Value Value Value Value - --------------------------------------------------- ------------------------- ------------------------- ------------------------- Held-to-Maturity Portfolio: U.S. Treasury and Agency securities $ 127,236 $ 122,998 $ 127,345 $ 124,326 $ 127,381 $ 125,114 Obligations of state and political subdivisions 8,495 8,508 5,709 5,735 5,131 5,186 Other securities 9,326 9,326 9,451 9,451 9,461 9,461 - --------------------------------------------------- ------------------------- ------------------------- ------------------------- Total held-to-maturity portfolio 145,057 140,832 142,505 139,512 141,973 139,761 - --------------------------------------------------- ------------------------- ------------------------- ------------------------- Available-for-Sale Portfolio: U.S. Treasury and Agency securities 385,424 382,178 420,062 420,808 420,315 423,923 Obligations of state and political subdivisions 507,804 519,697 519,661 532,708 522,955 541,828 Corporate securities 35,639 35,021 35,744 35,559 35,780 35,881 Collateralized mortgage obligations 49,081 48,374 78,708 78,466 76,042 76,019 Mortgage-backed securities 78,247 77,204 53,021 53,365 55,640 56,667 - --------------------------------------------------- ------------------------- ------------------------- ------------------------- Subtotal 1,056,195 1,062,474 1,107,196 1,120,906 1,110,732 1,134,318 Equity securities 42,720 42,720 39,706 39,706 41,843 41,843 - --------------------------------------------------- ------------------------- ------------------------- ------------------------- Total available-for-sale portfolio 1,098,915 1,105,194 1,146,902 1,160,612 1,152,575 1,176,161 - --------------------------------------------------- ------------------------- ------------------------- ------------------------- Net unrealized gain on available-for-sale portfolio 6,279 -- 13,710 -- 23,586 -- - --------------------------------------------------- ------------------------- ------------------------- ------------------------- Total $1,250,251 $1,246,026 $1,303,117 $1,300,124 $1,318,134 $1,315,922 =================================================== ========================= ========================= =========================
23 Loans As shown in Table 8, loans ended the third quarter at $2.66 billion, up $249.8 million (10.4%) year-to-date and up $249.7 (10.4%) versus one year earlier. The Elmira acquisition added approximately $191 million of loans to the loan portfolio as of September 30, 2006. Excluding the impact of the Elmira acquisition, loans increased $59 million or 2.5% from the end of the prior year-end and third quarter 2005. As compared to the prior quarter and one year earlier, growth was produced in all three categories. During the third quarter, excluding the impact of the Elmira acquisition, loans increased $26.7 million with increases in the consumer installment portfolio ($14.1 million), consumer mortgage portfolio ($10.2 million) and the business lending portfolio ($2.4 million). Table 8: Loans
(000's omitted) September 30, 2006 December 31, 2005 September 30, 2005 ---------------------- -------------------- -------------------- -------------------- Business lending $ 953,808 35.8% $ 819,605 34.0% $ 816,145 33.8% Consumer mortgage 890,939 33.5% 815,463 33.8% 813,274 33.7% Consumer installment 816,815 30.7% 776,701 32.2% 782,419 32.5% ---------------------- -------------------- -------------------- -------------------- Total loans $2,661,562 100.0% $2,411,769 100.0% $2,411,838 100.0% ====================== ==================== ==================== ====================
Business lending increased $134.2 million in the first nine months of 2006 and increased $137.7 million versus one year ago. Excluding the impact of the Elmira acquisition, business lending was up $9.8 million over the last three quarters and $13.3 million over the last year. Growth in commercial mortgage and business line of credit activity during the first nine months has more than offset a planned and managed decline in automotive dealer floor plan outstandings. The Company continues to face competitive conditions in most of its markets and it maintains its commitment to generating growth in its business portfolio in a manner that adheres to its twin goals of maintaining strong asset quality and producing profitable margins. Consumer mortgages increased $77.7 million year over year and $75.5 million in the first nine months of 2006, despite the Company continuing to sell certain 30-year, fixed-rate new mortgage originations in the secondary market for the third consecutive quarter. Excluding the impact of the Elmira acquisition, consumer mortgage lending increased $17.0 million and $19.2 million for the past nine and twelve month periods, respectively. Consumer mortgage growth has remained steady over the last few quarters despite interest rates rising above prior year levels. Consumer installment loans, including borrowings originated in automobile, marine and recreational vehicle dealerships, as well as branch originated home equity and installment loans, rose $40.1 million (5.2%) in the first nine months of 2006 and increased $34.4 million (4.4%) on a year-over-year basis. Excluding the impact of the Elmira acquisition, consumer installment lending increased $32.4 million and $26.7 million for the first nine months and year-over-year periods, respectively. Continued moderate interest rates (by historical standards), aggressive dealer and manufacturer incentives on new vehicles, and enhanced business development efforts have helped drive profitable growth in this segment in all our markets. 24 Asset Quality Table 9 below exhibits the major components of non-performing loans and assets and key asset quality metrics for the periods ending September 30, 2006 and 2005 and December 31, 2005. Table 9: Non-performing Assets
September 30, December 31, September 30, (000's omitted) 2006 2005 2005 ------------------------------------------------------------- ------------- ------------ ------------- Non-accrual loans $10,114 $10,857 $12,896 Accruing loans 90+ days delinquent 1,133 1,075 672 Restructured loans 1,300 1,375 0 ------------------------------------------------------------- ------------- ------------ ------------- Total non-performing loans 12,547 13,307 13,568 Other real estate (OREO) 1,320 1,048 882 ------------------------------------------------------------- ------------- ------------ ------------- Total non-performing assets $13,867 $14,355 $14,450 ============================================================= ============= ============ ============= Allowance for loan losses to total loans 1.33% 1.35% 1.35% Allowance for loan losses to non-performing loans 283% 245% 239% Non-performing loans to total loans 0.47% 0.55% 0.56% Non-performing assets to total loans and other real estate 0.52% 0.59% 0.60% Delinquent loans (30 days old to non-accruing) to total loans 1.22% 1.46% 1.46% Net charge-offs to average loans outstanding (quarterly) 0.17% 0.35% 0.30% Loan loss provision to net charge-offs (quarterly) 117% 106% 125%
As displayed in Table 9, non-performing assets at September 30, 2006 were $13.9 million, a decrease of $0.5 million versus year-end 2005 and a $0.6 million decrease as compared to the level at the end of the third quarter of 2005. Non-performing loans are at the lowest level in over three years, reflective of disciplined credit management and a steady improvement in economic conditions over the past few years. Other real estate increased $0.4 million from one-year ago and increased $0.3 million from year-end 2005, a result of the Company managing 24 properties at September 30, 2006 as compared to 15 OREO properties at the end of 2005. No single property has a carrying value in excess of $350,000. Non-performing loans were 0.47% of total loans outstanding at the end of the third quarter, significantly below the 0.56% at September 30, 2005, 0.55% at year-end 2005 and 0.58% average for the previous eight quarters. The allowance for loan losses to non-performing loans ratio, a general measure of coverage adequacy, was 283% at the end of the third quarter compared to 245% at year-end 2005 and 239% at September 30, 2005, reflective of the low level of non-performing loans. Delinquent loans (30 days through non-accruing) as a percent of total loans was 1.22% at the end of the third quarter, substantially below the 1.46% at year-end 2005 and at September 30, 2005. Commercial and installment loan delinquency ratios at the end of the third quarter improved in comparison to both of the earlier periods. Real estate loan delinquency ratios increased slightly from the third quarter of 2005, but were improved from December 31, 2005. The delinquency level at the end of the current quarter was 15 basis points below the Company's average of 1.37% over the previous eight quarters. 25 Table 10: Allowance for Loan Losses Activity
Three Months Ended Nine Months Ended September 30, September 30, ----------------------- ----------------------- (000's omitted) 2006 2005 2006 2005 -------------------------------------------------- ----------------------- ----------------------- Allowance for loan losses at beginning of period $32,900 $32,011 $32,581 $31,778 Charge-offs: Business lending 582 577 3,138 2,138 Consumer mortgage 54 87 156 489 Consumer installment 1,548 2,130 4,410 5,727 -------------------------------------------------- ----------------------- ----------------------- Total charge-offs 2,184 2,794 7,704 8,354 -------------------------------------------------- ----------------------- ----------------------- Recoveries: Business lending 425 231 664 602 Consumer mortgage 23 3 100 137 Consumer installment 621 734 2,269 2,013 -------------------------------------------------- ----------------------- ----------------------- Total recoveries 1,069 968 3,033 2,752 -------------------------------------------------- ----------------------- ----------------------- Net charge-offs 1,115 1,826 4,671 5,602 Provision for loans losses 1,300 2,275 5,175 6,284 Allowance for acquired loans(1) 2,432 0 2,432 0 -------------------------------------------------- ----------------------- ----------------------- Allowance for loan losses at end of period $35,517 $32,460 $35,517 $32,460 ================================================== ======================= ======================= Net charge-offs to average loans outstanding: Business lending 0.07% 0.17% 0.39% 0.25% Consumer mortgage 0.01% 0.04% 0.01% 0.06% Consumer installment 0.46% 0.72% 0.36% 0.67% Total loans 0.17% 0.30% 0.25% 0.32%
(1) This reserve is attributable to loans purchased from ES&L Bancorp in August 2006. As displayed in Table 10, net charge-offs during the third quarter were $1.1 million, $0.7 million lower than the equivalent 2005 period. All portfolios, consumer mortgage, installment portfolios and business lending, experienced decreased levels of charge-offs. The net charge-off ratio (net charge-offs as a percentage of average loans outstanding) for the third quarter was 0.17%, thirteen basis points lower than the comparable quarter of 2005, and 16 basis points lower than average charge-off ratio for the previous eight quarters. On a year to date basis, net charge-offs decreased $0.9 million versus the prior year period, while average loans were up $97.9 million, resulting in a seven basis point decline in the net charge-off ratio to 0.25%. Net charge-offs and the corresponding net charge-off ratios are at their lowest level in years. The business lending net charge-off ratio for the quarter improved 45 basis points to 0.07%, the consumer mortgage portfolio experienced a one basis point improvement in it's net charge-off ratio and the consumer installment net charge-off ratio increased by 24 basis points to 0.46%. For the year-to-date period, the business lending net charge-off ratio increased 14 basis points, while the consumer mortgage and consumer installment charge-off ratios improved five basis points and 31 basis points, respectively. The increase in business lending charge-offs was adversely impacted by three commercial relationships in the auto industry. A loan loss allowance of $35.5 million was determined as of September 30, 2006, necessitating a $1.3 million loan loss provision for the quarter, compared to $2.3 million one year earlier. The third quarter 2006 loan loss provision was $0.2 million higher than net charge-offs. The allowance for loan losses rose $3.1 million or 9.4% over the last 12 months, slightly less than the 10.4% growth in the loan portfolio. Contributing to the changes was the acquired Elmira loans and reserves, with a coverage ratio of 1.27%. Consequently, the ratio of allowance for loan loss to loans outstanding decreased two basis points to 1.33% for the third quarter, as compared to the levels at December 31, 2005 and September 30, 2005. The decrease is attributable to the favorable charge-off, non-performing and delinquencies trends experienced over the same time period. Deposits As shown in Table 11, average deposits of $3.1 billion in the third quarter were up $119.1 million compared to fourth quarter 2005 and increased $110.2 million versus the same quarter of last year. Excluding the impact of the Elmira acquisition, average deposits increased $51.0 million and $42.1 million as compared to the fourth and third quarters of the prior year, respectively. The mix of average deposits changed slightly in the first nine months of 2006. The weightings of time deposits and interest checking deposits increased from their fourth quarter levels, while demand, savings and money market deposit weightings decreased. As interest rates continue to rise, time deposits have continued to attract more funds, as evidenced by their 7.6% and 9.4% increases, excluding the impact of the Elmira acquisition, as compared to the fourth and third quarters of 2005, respectively. Interest checking account 26 balances are above the prior year levels primarily as a result of new product initiatives that commenced in the second quarter of 2006. This shift in mix, combined with increasing interest rates on money market and time deposit accounts increased the quarterly cost of interest-bearing deposits from 2.19% in the first quarter of 2006 to 2.55% in the most recent quarter, noticeably above the 1.83% for the quarter ended September 30, 2005. Average third quarter IPC (individuals and businesses) deposits increased $88.6 million or 3.2% versus the fourth quarter of 2005, and were up $73.3 million or 2.6% compared to the year earlier period. Excluding the impact of the Elmira acquisition, average third quarter IPC deposits increased $20.5 million and $5.3 million from the fourth and third quarters of the prior years, respectively. Average public funds have increased $30.5 million or 15.8% and $36.8 million or 19.7% over the same periods. The increase in core deposits is the result of ongoing enhanced marketing efforts and new product offerings introduced throughout 2006. Table 11: Quarterly Average Deposits September 30, December 31, September 30, (000's omitted) 2006 2005 2005 ---------------------------- ------------- ------------ ------------- Demand deposits $ 558,060 $ 596,508 $ 601,702 Interest checking deposits 364,762 307,738 308,297 Savings deposits 464,037 484,908 506,408 Money market deposits 332,277 351,029 353,342 Time deposits 1,379,074 1,238,945 1,218,291 ---------------------------- ------------- ------------ ------------- Total deposits $3,098,210 $2,979,128 $2,988,040 ============================ ============= ============ ============= IPC deposits $2,874,584 $2,785,967 $2,801,255 Public fund deposits 223,626 193,161 186,785 ---------------------------- ------------- ------------ ------------- Total deposits $3,098,210 $2,979,128 $2,988,040 ============================ ============= ============ ============= Borrowings At the end of the third quarter, borrowings of $709 million were up $55.9 million from December 31, 2005 and up $2.3 million versus the end of the third quarter of 2005. Excluding the borrowings related to the Elmira acquisition, external borrowings have declined approximately $33 million and $87 million from the fourth quarter and third quarter of 2005. The reduction in borrowings was principally the result of the decision to use a portion of the cash flows from the maturities of investments to reduce debt levels in the current flat or inverted yield curve environment. The Company is currently in the process of reviewing market alternatives for the replacement of its $30 million, fixed-rate trust preferred obligations, which include a premium call provision currently at 4.54%, starting in February 2007. The Company estimates the impact of the one-time charge associated with this refinancing to be between $0.04 and $0.05 per share, and expects to conclude its evaluation in the fourth quarter. Shareholders' Equity On April 20, 2005, the Company announced that its Board of Directors had authorized a stock repurchase program to acquire up to 1.5 million of its shares, or approximately 5% of its outstanding common stock. The shares may be repurchased from time to time, in open market or privately negotiated transactions through December 31, 2006. All reacquired shares will become treasury shares and will be used for general corporate purposes. Through September 30, 2006, the Company had repurchased 853,161 shares at an aggregate cost of $19.5 million. Total shareholders' equity of $465 million at the end of the third quarter increased $7.0 million from the balance at December 31, 2005. This change consisted of net income of $30.2 million, $2.8 million from shares issued under the employee stock plan and $1.5 million from employee stock options earned, partially offset by a decrease in the after-tax market value adjustment on the available-for-sale investment portfolio of $4.6 million, dividends declared of $17.3 million and treasury stock purchases of $5.5 million. Over the past 12 months total shareholders' equity increased by $4.1 million, as net income and positive contributions from shares issued under the employee stock plan more than offset dividends declared, treasury stock purchases, and a lower market value adjustment. 27 The Company's Tier I leverage ratio, a primary measure of regulatory capital for which 5% is the requirement to be "well-capitalized," was 7.26% at the end of the third quarter, down 31 basis points from year-end 2005 and eight basis points lower than its level one year ago. The decrease in the Tier I leverage ratio compared to December 31, 2005 is primarily the result of a 1.1% decrease in shareholders equity excluding intangibles and market value adjustment, with a 3.1% increase in average assets excluding intangibles and market value adjustment, primarily as a result of the Elmira acquisition. The decrease in Tier I as compared to the prior year third quarter is the result of a 0.5% increase in shareholders equity excluding intangibles and market value adjustment combined with a 1.7 % increase in average assets excluding intangibles and market value adjustment. The tangible equity-to-assets ratio of 5.44% decreased 48 basis points versus December 31, 2005 and 42 basis points versus September 30, 2005 due to the acquisition of Elmira, treasury share purchases and a decline in the market value adjustment. The dividend payout ratio (dividends declared divided by net income) for the first nine months of 2006 was 57.3%, up from 39.1% for the first nine months of 2005. Excluding securities gains, the dividend payout ratio for 2005 was 49.6%. The ratio increased because dividends declared increased 4.4%, while net income including securities gains decreased 28.8% and net income excluding securities gains decreased 9.7%. The expansion of dividends declared was caused by the dividend per share being raised 5.3% in August 2006, from $0.19 to $0.20 and 5.6% in August 2005 from $0.18 to $0.19, partially offset by a reduction in the number of shares outstanding. Liquidity Management of the Company's liquidity is critical due to the potential for unexpected fluctuations in deposits and loans. Adequate sources of both on and off-balance sheet funding are in place to effectively respond to such unexpected fluctuations. The Company's primary approach to measuring liquidity is known as the Basic Surplus/Deficit model. It is used to calculate liquidity over two time periods: first, the amount of cash that could be made available within 30 days (calculated as liquid assets less short-term liabilities); and second, a projection of subsequent cash availability over an additional 60 days. The minimum policy level of liquidity under the Basic Surplus/Deficit approach is 7.5% of total assets for both the 30 and 90-day time horizons. As of September 30, 2006, this ratio was 13.8% for 30 days and 13.7% for 90 days, excluding the Company's capacity to borrow additional funds from the Federal Home Loan Bank. To measure longer-term liquidity, a baseline projection of loan and deposit growth for five years is made to reflect how current liquidity levels could change over time. This five-year measure reflects adequate liquidity to fund loan and other asset growth over the next five years. Forward-Looking Statements This document contains comments or information that constitute forward-looking statements (within the meaning of the Private Securities Litigation Reform Act of 1995), which involve significant risks and uncertainties. Actual results may differ materially from the results discussed in the forward-looking statements. Moreover, the Company's plans, objectives and intentions are subject to change based on various factors (some of which are beyond the Company's control). Factors that could cause actual results to differ from those discussed in the forward-looking statements include: (1) risks related to credit quality, interest rate sensitivity and liquidity; (2) the strength of the U.S. economy in general and the strength of the local economies where the Company conducts its business; (3) the effect of, and changes in, monetary and fiscal policies and laws, including interest rate policies of the Board of Governors of the Federal Reserve System; (4) inflation, interest rate, market and monetary fluctuations; (5) the timely development of new products and services and customer perception of the overall value thereof (including features, pricing and quality) compared to competing products and services; (6) changes in consumer spending, borrowing and savings habits; (7) technological changes; (8) any acquisitions or mergers that might be considered or consummated by the Company and the costs and factors associated therewith; (9) the ability to maintain and increase market share and control expenses; (10) the effect of changes in laws and regulations (including laws and regulations concerning taxes, banking, securities and insurance) and accounting principles generally accepted in the United States; (11) changes in the Company's organization, compensation and benefit plans and in the availability of, and compensation levels for, employees in its geographic markets; (12) the costs and effects of litigation and of any adverse outcome in such litigation; (13) other risk factors outlined in the Company's filings with the Securities and Exchange Commission from time to time; and (14) the success of the Company at managing the risks of the foregoing. The foregoing list of important factors is not all-inclusive. Such forward-looking statements speak only as of the date on which they are made and the Company does not undertake any obligation to update any forward-looking statement, whether written or oral, to reflect events or circumstances after the date on which such statement is made. If the Company does update or correct one or more forward-looking statements, investors and others should not conclude that the Company would make additional updates or corrections with respect thereto or with respect to other forward-looking statements. 28 Item 3. Quantitative and Qualitative Disclosure about Market Risk Market risk is the risk of loss in a financial instrument arising from adverse changes in market rates, prices or credit risk. Credit risk associated with the Company's loan portfolio has been previously discussed in the asset quality section of Management's Discussion and Analysis of Financial Condition and Results of Operations. Management believes that the tax risk of the Company's municipal investments associated with potential future changes in statutory, judicial and regulatory actions is minimal. The Company has an insignificant amount of credit risk in its investment portfolio because essentially all of the fixed-income securities in the portfolio are AAA-rated (highest possible rating). Therefore, almost all the market risk in the investment portfolio is related to interest rates. The ongoing monitoring and management of both interest rate risk and liquidity, in the short and long term time horizons is an important component of the Company's asset/liability management process, which is governed by limits established in the policies reviewed and approved annually by the Board of Directors. The Board of Directors delegates responsibility for carrying out the policies to the Asset/Liability Committee (ALCO) which meets each month and is made up of the Company's senior management as well as regional and line-of-business managers who oversee specific earning asset classes and various funding sources. As the Company does not believe it is possible to reliably predict future interest rate movements, it has maintained an appropriate process and set of measurement tools, which enable it to identify and quantify sources of interest rate risk in varying rate environments. The primary tool used by the Company in managing interest rate risk is income simulation. While a wide variety of strategic balance sheet and treasury yield curve scenarios are tested on an ongoing basis, the following reflects the Company's one-year net interest income sensitivity based on: o Asset and liability levels using September 30, 2006 as a starting point. o There are assumed to be conservative levels of balance sheet growth--low to mid single digit growth in loans and deposits, while using the cashflows from investment contractual maturities and prepayments to repay short-term capital market borrowings. o The prime rate and federal funds rates are assumed to move up 200 basis points and down 100 basis points over a 12-month period while moving the long end of the treasury curve to spreads over federal funds that are more consistent with historical norms. Deposit rates are assumed to move in a manner that reflects the historical relationship between deposit rate movement and changes in the federal funds rate. o Cash flows are based on contractual maturity, optionality and amortization schedules along with applicable prepayments derived from internal historical data and external sources. Net Interest Income Sensitivity Model Calculated annualized increase (decrease) in Change in interest projected net interest income rates at September 30, 2006 ----------------------------------------------------- + 200 basis points (0.8%) - 100 basis points (0.3%) The modeled net interest income remains neutral to changes in interest rates over a 12-month period. Over a longer time period, however, the growth in net interest income improves in a rising rate environment as a result of lower yielding earning assets running off and being replaced at increased rates. The analysis does not represent a Company forecast and should not be relied upon as being indicative of expected operating results. These hypothetical estimates are based upon numerous assumptions: the nature and timing of interest rate levels (including yield curve shape), prepayments on loans and securities, deposit decay rates, pricing decisions on loans and deposits, reinvestment/replacement of asset and liability cash flows, and other factors. While the assumptions are developed based upon current economic and local market conditions, the Company cannot make any assurances as to the predictive nature of these assumptions, including how customer preferences or competitor influences might change. Furthermore, the sensitivity analysis does not reflect actions that ALCO might take in responding to or anticipating changes in interest rates. 29 Item 4. Controls and Procedures The Company maintains disclosure controls and procedures, as defined in Rule 13a - - 15(e) under the Securities Exchange Act of 1934, designed to ensure that it is able to collect the information it is required to disclose in the reports that are filed with the Securities and Exchange Commission, (SEC), and to process, summarize and disclose this information within the time periods specified in the rules of the SEC. Based on management's evaluation of the Company's disclosure controls and procedures, with the participation of the Chief Executive Officer and the Chief Financial Officer, it has concluded that, as of the end of the period covered by this Quarterly Report on Form 10-Q, these disclosure controls and procedures were effective as of September 30, 2006. There have been no changes in the Company's internal controls over financial reporting in connection with the evaluation referenced in the paragraph above that occurred during the Company's last fiscal quarter that has materially affected, or is reasonably likely to materially affect, the Company's internal control over financial reporting. Part II. Other Information Item 1. Legal Proceedings. The Company and its subsidiaries are subject in the normal course of business to various pending and threatened legal proceedings in which claims for monetary damages are asserted. Management, after consultation with legal counsel, does not anticipate that the aggregate liability, if any, arising out of litigation pending against the Company or its subsidiaries will have a material effect on the Company's consolidated financial position or results of operations. Item 1A. Risk Factors There has not been any material change in the risk factors disclosure from that contained in the Company's 2005 Form 10-K for the fiscal year ended December 31, 2005. Item 2. Unregistered Sales of Equity Securities and Use of Proceeds. On April 20, 2005, the Company announced a twenty-month authorization to repurchase up to 1,500,000 of its outstanding shares in open market or privately negotiated transactions. These repurchases will be for general corporate purposes, including those related to stock plan activities. The following table shows treasury stock purchases during the third quarter 2006.
Number of Average Price Total Number of Shares Maximum Number of Shares Shares Paid Purchased as Part of Publicly That May Yet Be Purchased Purchased Per share Announced Plans or Programs Under the Plans or Programs - ----------------------------------------------------------------------------------------------------------------------------- July 2006 -- $ -- 852,761 647,239 August 2006 400 20.17 853,161 646,839 September 2006 -- -- 853,161 646,839 - ----------------------------------------------------------------------------------------------------------------------------- Total 400 $ 20.17 853,161 646,839 =============================================================================================================================
Item 3. Defaults Upon Senior Securities. Not applicable. Item 4. Submission of Matters to a Vote of Securities Holders. There were no matters submitted to a vote of the shareholders during the quarter ending September 30, 2006. Item 5. Other Information. Not applicable 30 Item 6. Exhibits Exhibit No. Description - ----------- ----------- 2.2 Agreement and Plan of Merger, dated August 2, 2006, by and among Community Bank System, Inc., Seneca Acquisition Corp. and ONB Corporation. 31.1 Certification of Mark E. Tryniski, President and Chief Executive Officer of the Registrant, pursuant to Rule 13a-15(e) or Rule 15d-15(e) under the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. 31.2 Certification of Scott Kingsley, Treasurer and Chief Financial Officer of the Registrant, pursuant to Rule 13a-15(e) or Rule 15d-15(e) under the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. 32.1 Certification of Mark E. Tryniski, President and Chief Executive Officer of the Registrant, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. 32.2 Certification of Scott Kingsley, Treasurer and Chief Financial Officer of the Registrant, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 31 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. Community Bank System, Inc. Date: November 8, 2006 /s/ Mark E. Tryniski -------------------- Mark E. Tryniski, President, Chief Executive Officer and Director Date: November 8, 2006 /s/ Scott Kingsley ------------------ Scott Kingsley, Treasurer and Chief Financial Officer 32 EX-2.2 2 d69791_ex2-2.txt AGREEMENT AND PLAN OF MERGER Exhibit 2.2 AGREEMENT AND PLAN OF MERGER THIS AGREEMENT AND PLAN OF MERGER ("Agreement") is made and entered into as of August 2, 2006, by and among COMMUNITY BANK SYSTEM, INC., a Delaware corporation ("CBSI"), SENECA ACQUISITION CORP., a New York corporation ("Merger Sub"), and ONB Corporation, a New York corporation ("ONBC"). WHEREAS, CBSI is a bank holding company, the principal banking subsidiary of which is Community Bank, N.A., a national banking association ("Community Bank"); WHEREAS, Merger Sub is a newly formed, wholly-owned subsidiary of CBSI; WHEREAS, ONBC is a bank holding company, the banking subsidiary of which is Ontario National Bank, a national banking association ("ONB"); WHEREAS, the respective Boards of Directors of CBSI, Merger Sub and ONBC have each determined that it is in the best interests of their respective shareholders for CBSI to acquire ONBC through the merger (the "Merger") of Merger Sub with and into ONBC, upon the terms and subject to the conditions set forth herein; WHEREAS, immediately following the consummation of the Merger, a subsequent merger is contemplated (the "Short-Form Merger") of the Surviving Corporation (as defined below) with and into CBSI, upon the terms and subject to the conditions set forth herein; WHEREAS, immediately following the consummation of the Merger and the Short-Form Merger, it is contemplated that ONB, which shall become a wholly-owned subsidiary of CBSI as a result of the Merger and the Short-Form Merger, shall merge (the "Bank Merger") with and into Community Bank, with Community Bank continuing as the surviving bank (the "Continuing Bank"), pursuant to a plan of merger; WHEREAS, it is the current intention of CBSI to operate, after the consummation of the Bank Merger, the existing business of ONB as additional branches of Community Bank; WHEREAS, in furtherance of such acquisition, the respective Boards of Directors of CBSI, Merger Sub and ONBC have each approved this Agreement and the Merger in accordance with the General Corporation Law of the State of Delaware (the "DGCL") and the Business Corporation Law of the State of New York (the "NYBCL") and upon the terms and conditions set forth herein; WHEREAS, upon the consummation and effectiveness of the Merger, all of the issued and outstanding shares of common stock, par value $1.00 per share, of ONBC ("ONBC Common Stock"), other than the Dissenting Shares (as defined below), shall be converted into the right to receive cash, without interest, as provided in Article II of this Agreement; 1 WHEREAS, concurrently with the execution of this Agreement, and as a condition and inducement to CBSI's willingness to enter into this Agreement, each executive officer and director of ONBC set forth on Schedule 1 hereto is entering into a Voting Agreement (collectively, the "Voting Agreements"), substantially in the form attached hereto as Exhibit A; WHEREAS, it is the intention of the parties that the Merger be treated, for federal income tax purposes, as an acquisition of all of the outstanding capital stock of ONBC by CBSI for Merger Consideration (as defined below); NOW, THEREFORE, in consideration of the foregoing and the mutual covenants, representations, and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: ARTICLE I DEFINITIONS "Advisory Board" is defined in Section 5.13 hereof. "Agreement" is defined in the preamble hereof. "Bank Examinations" is defined in Section 3.30 hereof. "Bank Holding Company Act" shall mean the Bank Holding Company Act of 1956, as amended. "Bank Merger" is defined in the preamble of this Agreement. "CBSI" is defined in the preamble of this Agreement. "CBSI Common Stock" shall mean common stock, par value $1.00 per share, of CBSI. "CBSI Plan" is defined in Section 5.10(a) hereof. "CERCLA" is defined in Section 3.20 hereof. "Closing Date" shall mean the date specified pursuant to Section 5.9 hereof as the date on which the parties hereto shall close the transactions contemplated herein. "Code" shall mean the Internal Revenue Code of 1986, as amended. "Commission" or "SEC" shall mean the Securities and Exchange Commission. "Community Bank" is defined in the preamble of this Agreement. "Continuing Bank" is defined in the preamble of this Agreement. 2 "CRA" is defined in Section 3.29 hereof. "DGCL" is defined in the preamble of this Agreement. "Dissenting Shares" is defined in Section 2.4 hereof. "Effective Time" is defined in Section 2.1(b) hereof. "Environmental Law" shall mean any federal, state, local or foreign law (including any common law), statute, code, ordinance, rule, regulation or other requirement relating to the environment, natural resources or public or employee health and safety, and includes, but not limited to, CERCLA, the Hazardous Materials Transportation Act, 49 U.S.C. ss. 1801 et seq., as amended, the Resource Conservation and Recovery Act, 42 U.S.C. ss. 6901 et seq., as amended, the Clean Water Act, 33 U.S.C. ss. 2601 et seq., as amended, the Toxic Substances Control Act, 15 U.S.C. ss. 6901 et seq., as amended, the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. ss. 136 et seq., as amended, the Oil Pollution Act of 1990, 33 U.S.C. ss. 2701 et seq., as amended, and the Occupational Safety and Health Act, 29 U.S.C. ss. 6901 et seq., as amended. "Environmental Costs and Liabilities" shall mean any and all losses, liabilities, obligations, damages, fines, penalties, judgments, actions, claims, costs and expenses (including, without limitation, fees, disbursements and expenses of legal counsel, experts, engineers and consultants and the costs of investigation and feasibility studies and remedial activities) arising from or under any Environmental Law or order or contract with any governmental authority or any other Person. "ERISA" shall mean the Employee Retirement Income Security Act of 1974, as amended. "ERISA Affiliate" is defined in Section 3.13(a) hereof. "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. "Exchange Agent" is defined in Section 2.5 hereof. "FDIA" shall mean the Federal Deposit Insurance Act. "FDIC" shall mean the Federal Deposit Insurance Corporation. "Federal Reserve Board" shall mean the Board of Governors of the Federal Reserve System. "Hazardous Materials" shall mean any petroleum or petroleum products, radioactive materials, asbestos containing materials, radon gas, PCBs and any other hazardous or toxic substance, material or waste which is or becomes regulated under, or defined as a "hazardous substance," "pollutant," "contaminant," "toxic chemical," "hazardous materials," "toxic substance" or "hazardous chemical" under any Environmental Law. 3 "Indemnified Parties" is defined in Section 5.11(c) hereof. "Intellectual Property" means domestic and foreign letters patent, patents, patent applications, patent licenses, software licensed or owned, know-how licenses, trade names, common law and other trademarks, service marks, licenses of trademarks, trade names and/or service marks, trademark registrations and applications, service mark registrations and applications and copyright registrations and applications. "Interested Party Transactions" is defined in Section 3.25 hereof. "IRS" means the Internal Revenue Service. "Material Adverse Effect" shall mean, with respect to any party, a material adverse effect on the business, results of operations or financial condition of such party and its Subsidiaries, taken as a whole, or a material adverse effect on such party's ability to consummate the transactions contemplated hereby; provided, however, that in determining whether a Material Adverse Effect has occurred there shall be excluded any effect on the affected party the primary cause of which is (i) any change in banking or similar laws, rules or regulations of general applicability or interpretations thereof by courts or governmental authorities, (ii) any change in generally accepted accounting principles or regulatory accounting requirements applicable to banks or their holding companies generally, (iii) general changes in conditions, including interest rates, in the banking industry or in the global or United States economy or financial markets, with respect to clause (i), (ii) or (iii), to the extent that such a change does not materially affect the referenced party to a materially different extent than other similarly situated banking organizations, and (iv) any action or omission of the referenced party or any of its Subsidiaries taken with the prior written consent of the other party to this Agreement in contemplation of the Merger. "Maximum Amount" is defined in Section 5.10(c)(3) hereof. "Merger" is defined in the preamble of this Agreement. "Merger Consideration" is defined in Section 2.2(a) hereof. "NYBCL" is defined in the preamble of this Agreement. "NYSE" shall mean the New York Stock Exchange. "OCC" shall mean the Office of the Comptroller of Currency. "ONB" is defined in the preamble of this Agreement. "ONBC" is defined in the preamble of this Agreement. "ONBC Common Stock" is defined in the preamble of this Agreement. "ONBC Plan" is defined in Section 3.13(a) hereof. 4 "ONBC Shareholders' Meeting" shall mean the special meeting of the shareholders of ONBC to be called for the purpose of approving this Agreement and the transactions contemplated thereby. "ONBC Financial Statements" shall mean (i) the unaudited consolidated statements of condition of ONBC as of March 31, 2006 and the related unaudited consolidated statements of income, cash flows and changes in shareholders' equity (including related notes, if any) for the three months ended March 31, 2006; (ii) the audited consolidated statements of condition of ONBC as of December 31, 2005 and 2004 and the related consolidated statements of income, cash flows and changes in shareholders' equity (including related notes, if any) for each of the three years ended December 31, 2005, 2004 and 2003, and (iii) the consolidated statements of condition of ONBC and related consolidated statements of income, cash flows and changes in shareholders' equity (including related notes, if any) as of dates or with respect to periods ending subsequent to March 31, 2006. "PBGC" is defined in Section 3.13 hereof. "Person" shall mean an individual, corporation, partnership, bank, limited liability company, trust, association, unincorporated organization, other entity or group (as defined in Section 13(d)(3) of the Exchange Act). "Previously Disclosed" shall mean disclosed prior to the execution hereof in a letter dated of even date herewith from the party making such disclosure and delivered to the other party prior to the execution hereof. Any information disclosed by one party to the other for any purpose hereunder shall be deemed to be disclosed for all purposes hereunder provided that the relevance of the disclosed information to the representations or warranties in question is reasonably apparent. The inclusion of any matter in such letter shall not be deemed an admission or otherwise to imply that any such matter is material for purposes of this Agreement. With respect to CBSI, "Previously Disclosed" shall also mean disclosed or reflected in an SEC Document filed with the SEC subsequent to January 1, 2005 and prior to the date hereof. "Proxy Statement" shall mean the proxy statement, together with any amendments or supplements thereto, and related materials sent to the shareholders of ONBC to solicit their votes in connection with this Agreement and the Merger. "Related Party" is defined in Section 3.25 hereof. "Rights" shall mean warrants, options, rights, convertible securities and other arrangements or commitments which obligate an entity to issue or dispose of any of its capital stock, and stock appreciation rights, performance units and other similar stock-based rights whether they obligate the issuer thereof to issue stock or other securities or to pay cash. "SEC" shall mean the Securities and Exchange Commission. "SEC Documents" shall mean all reports and registration statements filed, or required to be filed, by a party hereto pursuant to the Securities Laws. "Securities Act" shall mean the Securities Act of 1933, as amended. 5 "Securities Laws" shall mean the Securities Act; the Exchange Act; the Investment Company Act of 1940, as amended; the Investment Advisers Act of 1940, as amended; the Trust Indenture Act of 1939, as amended; and the rules and regulations of the Commission promulgated thereunder. "Short-Form Merger" is defined in the preamble of this Agreement. "Superior Proposal" is defined in Section 5.12 hereof. "Subsidiary" shall mean with respect to any party, any Person which is consolidated with such party for financial reporting purposes; provided, however, that "Subsidiary" shall not include any subsidiary trust formed for the purpose of issuing trust preferred or similar securities. "Surviving Corporation" is defined in Section 2.1(a) hereof. "Takeover Laws" is defined in Section 5.11 hereof. "Takeover Proposal" is defined in Section 5.12 hereof. "Taxes" shall mean all taxes, however denominated, including any interest, penalties, criminal sanctions or additions to tax (including, without limitation, any underpayment penalties for insufficient estimated tax payments) or other additional amounts that may become payable in respect thereof (or in respect of a failure to file any Tax Return when and as required), imposed by any federal, state, local or foreign government or any agency or political subdivision of any such government, which taxes shall include, without limiting the generality of the foregoing, all income taxes, payroll and employment taxes, withholding taxes (including withholding taxes in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other person or entity), unemployment insurance taxes, social security (or similar) taxes, sales and use taxes, excise taxes, franchise taxes, gross receipts taxes, occupation taxes, real and personal property taxes, stamp taxes, value added taxes, transfer taxes, profits or windfall profits taxes, licenses in the nature of taxes, estimated taxes, severance taxes, duties (custom and others), workers' compensation taxes, premium taxes, environmental taxes (including taxes under Section 59A of the Code), payroll taxes, registration taxes, alternative or add-on minimum taxes, estimated taxes, and such other fees, assessments, charges or obligations of the same or of a similar nature that are in effect, a tax, whether or not called a tax. "Tax Returns" shall mean all returns, reports, estimates, information statements or other written submissions, and any schedules or attachments thereto, required or permitted to be filed pursuant to the statutes, rules and regulations of any federal, state, local or foreign government Tax authority, including but not limited to, original returns and filings, amended returns, claims for refunds, information returns and accounting method change requests. "Transaction Documents" shall mean, collectively, the Voting Agreements, any instruments to effect the Bank Merger and the Short-Form Merger, and certificates and other documents contemplated thereby or by this Agreement. "USA Patriot Act" is defined in Section 3.29 hereof. 6 "Voting Agreement" is defined in the preamble of this Agreement. For purposes of this Agreement, the terms "ONBC," "ONB," "CBSI," "Community Bank" and "Subsidiary" include all of the respective predecessors thereof (including without limitation, any previously acquired Person). ARTICLE II THE MERGER 2.1. The Merger. (a) At the Effective Time, and upon the terms and subject to the conditions of this Agreement, Merger Sub shall be merged with and into ONBC, the separate existence of Merger Sub shall cease and ONBC shall continue as the surviving corporation and wholly-owned subsidiary of CBSI. ONBC as the surviving corporation after the Merger is hereinafter sometimes referred to as the "Surviving Corporation." (b) As promptly as practicable after the satisfaction or waiver of the conditions set forth in Article VI, the parties shall cause the Merger to be consummated by filing articles of merger as contemplated by the NYBCL, together with any required related documents, with the Department of State of the State of New York, in such form as required by, and executed in accordance with, the relevant provisions of the NYBCL (the time of such filing, or the time specified in such filing as the effective time for the Merger, as applicable, being the "Effective Time"). 2.2. Merger Consideration. (a) ONBC Common Stock. At the Effective Time, by virtue of the Merger and without any further action by the parties, each share of ONBC Common Stock issued and outstanding immediately prior to the Effective Time (other than shares to be cancelled pursuant to Section 2.2(b) and Dissenting Shares, if any) shall be cancelled and shall be converted automatically into the right to receive $210 in cash, without interest, per share (the "Merger Consideration"). (b) Treasury Shares and Shares Held by CBSI. Each share of ONBC Common Stock held in treasury by ONBC or owned by any Subsidiary of ONBC, CBSI or any Subsidiary of CBSI (in each case other than shares held directly or indirectly in trust accounts, managed accounts and the like or otherwise held in a fiduciary capacity for the benefit of third parties), shall be cancelled without any consideration and no payment or distribution shall be made with respect thereto. (c) Merger Sub Common Stock. Each share of common stock of Merger Sub outstanding immediately prior to the Effective Time shall remain unchanged and shall constitute the common stock of the Surviving Corporation. 7 (d) Adjustments to Merger Consideration. If, subsequent to the date of this Agreement but prior to the Effective Time, the outstanding shares of ONBC Common Stock shall be increased, decreased, changed into or exchanged for a different number of shares, in each case by reason of any stock split, recapitalization, or reclassification or other similar change, the Merger Consideration shall be adjusted proportionately. 2.3. Effect of Merger. Upon the Effective Time of the Merger: (a) The certificate of incorporation and bylaws of Merger Sub, each as in effect immediately prior to the Effective Time, shall be the certificate of incorporation and bylaws, respectively, of the Surviving Corporation, in each case until amended in accordance with the NYBCL. (b) All respective assets, rights, franchises, and interest of ONBC and Merger Sub in and to every type of property shall be vested in the Surviving Corporation by virtue of the Merger without any deed or other transfer; and the Surviving Corporation, without any order or other action on the part of any court or otherwise, shall hold and enjoy all rights of property, franchises and interest, in the same manner and to the same extent as such rights, franchises and interests were held and enjoyed by ONBC and Merger Sub immediately prior to the Effective Time. (c) The Surviving Corporation shall be liable for all of the liabilities of ONBC and Merger Sub and shall be bound by and subject to all of the obligations and contracts of ONBC and Merger Sub. All rights of creditors and obligees and all liens on property of ONBC and Merger Sub shall be preserved and unimpaired. (d) The directors and officers of Merger Sub immediately prior to the Effective Time shall be the directors and officers, respectively, of the Surviving Corporation. 2.4. Dissenting Shares. Notwithstanding any other provision contained in this Agreement, no shares of ONBC Common Stock that are issued and outstanding as of the Effective Time and that are held by a shareholder who has properly exercised his or her appraisal rights (such shares being collectively referred to herein as "Dissenting Shares") under the NYBCL shall be converted into the right to receive the Merger Consideration as provided in Section 2.2(a) unless and until the holder shall have failed to perfect, or shall have effectively withdrawn or lost, such holder's right to dissent from the Merger under the NYBCL and to receive such consideration as may be determined to be due with respect to such Dissenting Shares pursuant to and subject to the requirements of the NYBCL. If any holder of Dissenting Shares shall have so failed to perfect or effectively withdrawn or lost such holder's right to dissent from the Merger, each of such holder's shares of ONBC Common Stock shall thereupon no longer be deemed Dissenting Shares and deemed to have become, as of the Effective Time, the right to receive the Merger Consideration pursuant to Section 2.2(a). ONBC shall give CBSI (a) prompt notice of any demands for appraisal, attempted withdrawals of such demands and any other instruments received by ONBC relating to shareholders' rights of appraisal, and (b) the opportunity to direct all negotiations and proceedings with respect to any demands for appraisal 8 under the NYBCL. ONBC shall not, except with the prior written consent of CBSI, voluntarily make any payment with respect to any demands for appraisal of any capital stock of ONBC or agree to do so, or offer to settle or settle any such demands or approve any withdrawals of any such demands. 2.5. Procedure to Exchange Shares. (a) Immediately prior to the Effective Time, CBSI shall cause to be deposited with American Stock Transfer & Trust Company or another financial institution experienced in serving as an exchange agent (the "Exchange Agent"), for exchange in accordance with this Article II, cash, by wire transfer of immediately available funds, into which the outstanding shares of ONBC Common Stock shall be converted pursuant to this Agreement. As soon as reasonably practicable after the Effective Time, CBSI shall use its commercially reasonable efforts to cause the Exchange Agent to mail to all holders of record of ONBC Common Stock, excluding any holders of Dissenting Shares, letters of transmittal specifying the procedures for delivery of such holders' certificates formerly representing ONBC Common Stock to the Exchange Agent in exchange for the Merger Consideration payable pursuant to this Article II. As soon as reasonably practicable, after surrender to the Exchange Agent of the certificates of ONBC Common Stock in accordance with the instructions of the letter of transmittal, CBSI shall cause the Exchange Agent to distribute to each former holder of shares of ONBC Common Stock a check for the Merger Consideration that such holder is entitled to receive pursuant to this Agreement. In no event shall the holder of any such surrendered certificates be entitled to receive interest on any cash to be received in the Merger. If any certificate surrendered for exchange is to be issued in a name other than that in which the surrendered certificate is issued, the certificate so surrendered shall be properly endorsed and otherwise in proper form for transfer and the Person requesting such exchange shall affix any required stock transfer tax stamps to the certificate or provide funds for their purchase or establish to the satisfaction of the Exchange Agent that such taxes are not payable. (b) At any time following the expiration of twelve (12) months following the Effective Time, CBSI shall be entitled to direct the Exchange Agent to deliver to it any funds which had been deposited with the Exchange Agent and not disbursed to holders of the ONBC Common Stock (including, without limitation, all interest and other earnings on such funds), and thereafter such holders shall be entitled to look to CBSI only as general creditors thereof with respect to any Merger Consideration that may be payable upon due surrender of their certificates, a letter of transmittal and other related documents to the Exchange Agent or CBSI, until at such time as such undisbursed cash is delivered to a public official pursuant to any applicable abandoned property, escheat or similar law. (c) At the Effective Time, the stock transfer books of ONBC shall be closed and no transfer of ONBC Common Stock shall thereafter be made or recognized. If, after the Effective Time, certificates representing such shares are presented for transfer, they shall be cancelled and exchanged for the Merger Consideration as provided in this Section. (d) In the event any certificate shall have been lost, stolen, destroyed or mutilated, upon the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen, destroyed or mutilated and, if required by CBSI, the making of an indemnity 9 agreement in a form reasonably requested by CBSI and/or the posting by such Person of a bond in such amount as CBSI may reasonably direct as indemnity against any claim that may be made against it with respect to such certificate, the Exchange Agent will issue in exchange for such lost, stolen, destroyed or mutilated certificate the Merger Consideration deliverable in respect thereof pursuant to this Agreement. (e) None of CBSI, Merger Sub or the Surviving Corporation shall be liable to any holder of shares of ONBC Common Stock for any dividends or other distributions with respect thereto, or any Merger Consideration payable in respect thereof, delivered to a public official pursuant to any applicable abandoned property, escheat or similar law. ARTICLE III REPRESENTATIONS AND WARRANTIES OF ONBC Except as Previously Disclosed, ONBC hereby represents and warrants to CBSI and Merger Sub as follows: 3.1. Capital Structure of ONBC. The authorized capital stock of ONBC consists solely of 200,000 shares of ONBC Common Stock, of which 74,615 shares are issued and outstanding. 385 shares of ONBC Common Stock are held in treasury. There are no outstanding options, warrants, agreements, arrangements, commitments or any similar rights in existence for the purchase of or issuance of, or which encumber in any way, ONBC Common Stock or any equity interest in any Subsidiary of ONBC. All outstanding shares of ONBC Common Stock have been duly authorized and validly issued and are fully paid and nonassessable. None of the shares of ONBC's capital stock has been issued in violation of the preemptive rights of any Person. 3.2. Organization, Standing and Authority of ONBC. Each of ONBC and its Subsidiaries is a duly organized corporation, validly existing and in good standing under the laws of its incorporation with full corporate power and authority to own, lease and operate the properties it purports to own, lease or operate and to carry on its business as now conducted. Each of ONBC and its Subsidiaries is duly licensed or qualified to do business in the states of the United States and foreign jurisdictions where its ownership or leasing of property or the conduct of its business requires such qualification. ONBC is a registered bank holding company under the Bank Holding CompanyAct. True, correct and complete copies of the articles of incorporation and bylaws of ONBC and each of its Subsidiaries, as in effect on the date hereof, have been Previously Disclosed to CBSI. 3.3. Ownership of ONBC Subsidiaries; Capital Structure of ONBC Subsidiaries. A true and complete list of all of ONBC's Subsidiaries, together with the jurisdiction of incorporation of each Subsidiary and the percentage of each Subsidiary's outstanding capital stock or other equity interest owned by ONBC or another subsidiary of ONBC, has been Previously Disclosed. Except as Previously Disclosed, ONBC does not, directly or indirectly, own any equity or similar interest in, or any interest convertible into or exchangeable or exercisable for, any equity or similar interest in, any Person. 10 3.4. Authorized and Effective Agreement. (a) ONBC has all requisite corporate power and authority to enter into and perform all of its obligations under this Agreement and each of the Transaction Documents to which it is a party. The execution and delivery of this Agreement and each such Transaction Agreement and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action in respect thereof on the part of ONBC, except for the affirmative vote by the holders of two-thirds of all outstanding shares of ONBC Common Stock entitled to vote thereon (and no greater voting requirement is applicable by reason of Section 10 of the certificate of incorporation of ONBC), which is the only shareholder vote required to approve the Merger pursuant to ONBC 's certificate of incorporation and bylaws and the NYBCL. The Board of Directors of ONBC has approved and adopted this Agreement and the Merger, and directed that this Agreement be submitted to ONBC 's shareholders for approval at a special meeting to be held in accordance with this Agreement. The Board of Directors of ONBC has unanimously recommended that the shareholders of ONBC approve this Agreement and the Merger. (b) This Agreement and each Transaction Document to which ONBC is a party have been duly executed and delivered by ONBC and, assuming the accuracy of the representation contained in Section 4.2(b) hereof, this Agreement constitutes the legal, valid and binding obligations of ONBC, enforceable against ONBC in accordance with its terms, except that such enforceability may be subject to bankruptcy, insolvency and other laws of general applicability relating to or affecting creditors' rights and to general equity principles. (c) Neither the execution and delivery by ONBC of this Agreement or any Transaction Document to which it is a party, nor consummation of the transactions contemplated hereby or thereby, nor compliance by ONBC with any of the provisions hereof or thereof shall (i) conflict with or result in a breach of any provision of the certificate of incorporation or bylaws of ONBC, (ii) assuming the consents and approvals contemplated by Section 5.3 hereof and the consents and approvals which are Previously Disclosed are duly obtained, constitute or result in a breach of any term, condition or provision of, or constitute a default under, or give rise to any right of termination, cancellation or acceleration with respect to, or result in the creation of any lien, charge or encumbrance upon any property or asset of ONBC or any of its Subsidiaries pursuant to, any note, bond, mortgage, indenture, license, agreement or other instrument or obligation to which ONBC or any of its Subsidiaries is a party, or (iii) assuming the consents and approvals contemplated by Section 5.3 hereof and the consents and approvals which are Previously Disclosed are duly obtained, conflict with or violate any law, order, writ, injunction, decree, statute, rule or regulation applicable to ONBC or any of its Subsidiaries or their respective assets. (d) Other than as contemplated by Section 5.3 hereof, no consent, approval or authorization of, or declaration, notice, filing or registration with, any governmental or regulatory authority, or any other Person, is required to be made or obtained by ONBC on or prior to the Closing Date in connection with the execution, delivery and performance of this Agreement or any of the Transaction Documents to which it is a party or the consummation of the transactions contemplated hereby or thereby. As of the date hereof, ONBC is not aware of any reason that the condition set forth in Section 6.1(b) of this Agreement would not be satisfied. 11 3.5. Regulatory Filings. Each of ONBC and its Subsidiaries has filed all reports required by statute or regulation to be filed with any federal or state bank regulatory agency, 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. 3.6. Financial Statements; Books and Records; Minute Books. ONBC has Previously Disclosed true and complete copies of the ONBC Financial Statements to CBSI, and ONBC shall deliver to CBSI promptly upon preparation true and complete copies of any ONBC Financial Statements relating to any period subsequent to March 31, 2006. The ONBC Financial Statements fairly present, and the ONBC Financial Statements furnished by ONBC in respect of any period subsequent to March 31, 2006 will fairly present when so furnished, the consolidated financial position of ONBC as of the dates indicated and the consolidated income, changes in shareholders' equity and cash flows of ONBC and its consolidated Subsidiaries for the periods then ended and each such financial statement has been or will be, as the case may be, prepared in conformity with generally accepted accounting principles applicable to financial institutions applied on a consistent basis, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments which were not or are not expected to be material in amount, and may not contain certain related notes as may be required by generally accepted accounting principles. The books and records of ONBC and each of its Subsidiaries fairly reflect in all material respects the transactions to which it is a party or by which its properties are subject or bound. Such books and records have been properly kept and maintained and are in compliance with all applicable legal and accounting requirements in all material respects. The minute books of ONBC and each of its Subsidiaries contain records which are accurate in all material respects of all corporate actions of its shareholders and Board of Directors (including committees of its Board of Directors). 3.7. Material Adverse Change. ONBC has not, on a consolidated basis, suffered any change in its financial condition, results of operations, prospects or business since December 31, 2005, which, individually or in the aggregate with any other such changes, could reasonably be expected to constitute a Material Adverse Effect with respect to ONBC. 3.8. Absence of Undisclosed Liabilities. Neither ONBC nor any of its Subsidiaries has any liability (contingent or otherwise) that is material to ONBC on a consolidated basis, or that, when combined with all similar liabilities, would be material to ONBC on a consolidated basis, except as disclosed in the consolidated balance sheet at March 31, 2006 included in the ONBC Financial Statements and except for liabilities incurred in the ordinary course of business consistent with past practice since March 31, 2006. 3.9. Absence of Certain Changes. Since March 31, 2006, except as Previously Disclosed, neither ONBC nor any of its Subsidiaries has: (a) suffered any material damage, destruction or loss of physical property or assets (whether or not covered by insurance); (b) issued, sold or otherwise disposed of any of its capital stock; 12 (c) incurred or agreed to incur any material indebtedness for borrowed money, other than in the ordinary course of business consistent with past practice; (d) made or obligated itself to make any capital expenditure in excess of $25,000, individually or in the aggregate; (e) waived any material right, except in the ordinary course of business consistent with past practice; (f) sold, transferred or otherwise disposed of any assets, or canceled, or agreed to cancel, any material debts or claims, in each case, other than in the ordinary course of business consistent with past practice; (g) mortgaged, pledged or subjected to any charge, lien, claim or encumbrance any of its material properties or assets, other than in the ordinary course of business; (h) declared, set aside or paid any dividend (whether in cash, property or stock) with respect to any of its capital stock, or redeemed, purchased or otherwise acquired any of its capital stock; (i) increased the salaries, bonuses or other compensation of any of its directors, officers, employees or agents, or adopted or increased any benefits under any insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such director, officer, employee or agent, other than as Previously Disclosed; (j) made or permitted any amendment or termination of any material contract, agreement or license to which it is a party, other than in the ordinary course of business consistent with past practice; (k) made any material change in its accounting methods or practices with respect to its financial condition, properties, business or operations; (l) repaid any outstanding loans, other than repayments in the ordinary course of business; (m) entered into any other material transaction not in the ordinary course of business; (n) become aware of the need to make additional specific provisions for reserves for loan losses which would have a Material Adverse Effect on ONBC; (o) hired any new employees other than to fill vacancies in the ordinary course of business; (p) entered into any real estate or equipment lease, requiring aggregate rental payments in excess of $25,000; or 13 (q) agreed to or otherwise become obligated to do any of the foregoing. 3.10. Properties. ONBC and its Subsidiaries have good and marketable title free and clear of all liens, encumbrances, charges, defaults or equitable interests to all of their properties and assets, real and personal, except (i) liens for Taxes not yet due and payable, (ii) pledges to secure deposits and other liens incurred in the ordinary course of banking business as reflected in the books and records of ONBC, (iii) such imperfections of title, easements and encumbrances, if any, as are not material in character, amount or extent and (iv) dispositions and encumbrances for adequate consideration in the ordinary course of business consistent with past practice. All leases pursuant to which ONBC or any of its Subsidiaries, as lessee, leases real and personal property which, individually or in the aggregate, are material to the business of ONBC on a consolidated basis are, to ONBC's knowledge, valid and enforceable against the lessor in accordance with their respective terms. All tangible property used in the business of ONBC is in good condition, reasonable wear and tear excepted, and is usable in the ordinary course of business consistent with ONBC's past practices. 3.11. Loans. (a) Each loan reflected as an asset in the ONBC Financial Statements (i) is evidenced by notes, agreements or other evidences of indebtedness which are true, genuine and what they purport to be, and such documents comply in all material respects with all applicable laws, rules and regulations, (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, except that the enforceability thereof may be subject to bankruptcy, insolvency, fraudulent conveyance and other laws of general applicability relating to or affecting creditors' rights and to general equity principles, and (iv) was solicited, originated and existed, and will exist at the Effective Time, in material compliance with all applicable loan policies of ONBC and ONB. The information (including electronic information and information contained on tapes and computer disks) with respect to all loans of ONB and its Subsidiaries furnished to CBSI by ONBC is, as of the respective dates indicated therein, true and complete in all material respects. (b) The allowance for loan losses reflected on the ONBC Financial Statements, as of their respective dates, is consistent with the requirements of generally accepted accounting principles to provide for reasonably anticipated losses with respect to the loan portfolio of ONBC and its Subsidiaries based upon information available at the time. ONBC has made available to CBSI true, correct and complete (to the extent in its possession) information concerning its asset quality, including without limitation, delinquency reports and information concerning non-performing/non-accrual loans and loans classified as substandard or lower. 3.12. Tax Matters. (a) ONBC and each of its Subsidiaries have timely filed federal income tax returns for each year through December 31, 2005 and has timely filed, or caused to be filed, all other Tax Returns required to be filed with respect to ONBC or any of its Subsidiaries. All Taxes due by or on behalf of ONBC or any of its Subsidiaries have been paid or adequate reserves have been established on the ONBC Financial Statements for the payment of such 14 Taxes. Neither ONBC nor any of its Subsidiaries will have any liability for any such Taxes in excess of the amounts so paid or reserves or accruals so established. (b) All Tax Returns filed by ONBC and each of its Subsidiaries are complete and accurate in all material respects. Neither ONBC nor any of its Subsidiaries is delinquent in the payment of any material Tax, and none of them has requested any extension of time within which to file any Tax Returns which have not since been filed. No material audit examination, deficiency, adjustment, refund claim or litigation with respect to Tax Returns, paid Taxes, unpaid Taxes or Tax attributes of ONBC or any of its Subsidiaries has been proposed, asserted or assessed (tentatively or otherwise). There are currently no agreements in effect with respect to ONBC or any of its Subsidiaries to extend the period of limitations for the assessment or collection of any Tax. (c) Neither the transactions contemplated hereby nor the termination of the employment of any employees of ONBC prior to or following consummation of the transactions contemplated hereby will result in ONBC or any of its Subsidiaries (or any successor thereof) making or being required to make any "excess parachute payment" as that term is defined in Section 280G of the Code. (d) Neither ONBC nor any of its Subsidiaries is a party to any agreement providing for the allocation or sharing of, or indemnification for, Taxes. (e) Except as Previously Disclosed, neither ONBC nor any of its Subsidiaries is required to include in income any adjustment in any taxable period ending after the date hereof pursuant to Section 481(a) of the Code. (f) Neither ONBC nor any of its Subsidiaries has executed or entered into any written agreement with any Tax authority conceding or agreeing to any treatment of Taxes or Tax attributes, including, without limitation, an Internal Revenue Service Form 870 or Form 870-AD, closing agreement or special closing agreement, affecting ONBC or any of its Subsidiaries pursuant to Section 7121 of the Code or any predecessor provision thereof or any similar provision of state, local or foreign law, which agreement would have a material impact on the calculation of the Taxes of CBSI or any of its Subsidiaries after the Effective Time. 3.13. Employee Benefit Plans. (a) Each ONBC Plan is listed on Schedule 3.13(a) or has been Previously Disclosed. For purposes of this Section 3.13, the term "ONBC Plan" means each bonus, deferred compensation, incentive compensation, stock purchase, stock option, severance pay, medical, life or other insurance, profit-sharing, or pension plan, program, agreement or arrangement, and each other employee benefit plan, program, agreement or arrangement, sponsored, maintained or contributed to or required to be contributed to by ONBC or by any trade or business, whether or not incorporated, that together with ONBC would be deemed a "single employer" under Section 414 of the Code (an "ERISA Affiliate") for the benefit of any employee or director or former employee or former director of ONBC or any ERISA Affiliate of ONBC. (b) With respect to each of the ONBC Plans, ONBC has made available to CBSI true and complete copies of each of the following documents: (a) the ONBC Plan and 15 related documents (including all amendments thereto); (b) the most recent annual reports, financial statements, and actuarial reports, if any; (c) an estimate of the termination liability under Title IV of ERISA for the Ontario National Bank Retirement Plan, calculated as of January 1, 2006 by Harbridge Consulting Group, LLC; (d)the most recent summary plan description, together with each summary of material modifications, required under ERISA with respect to such ONBC Plan and all material communications relating to each such ONBC Plan; and (e) the most recent determination letter or opinion letter received from the IRS with respect to each ONBC Plan that is intended to be qualified under the Code and all material communications to or from the IRS or any other governmental or regulatory agency or authority relating to each ONBC Plan. (c) Neither ONBC nor, to the knowledge of ONBC, any ERISA Affiliate of ONBC, nor any of the ONBC Plans, nor, to the knowledge of ONBC, any trust created thereunder, nor any trustee, fiduciary or administrator thereof, nor any party in interest with respect thereto, has engaged in a non-exempt prohibited transaction (within the meaning of Section 406 of ERISA and Section 4975 of the Code) in connection with which ONBC or any ERISA Affiliate of ONBC could reasonably be expected to, either directly or indirectly, incur any material liability or material cost to ONBC or any ERISA Affiliate of ONBC. (d) Except as Previously Disclosed, full payment has been made, or will be made in accordance with Section 404(a)(6) of the Code, of all amounts that ONBC or any ERISA Affiliate of ONBC is required to pay under Section 412 of the Code or under the terms of the ONBC Plans. (e) No ONBC Plan subject to Section 412 of the Code had an "accumulated funding deficiency" within the meaning of Section 412(a) of the Code as of the end of the most recent plan year, taking into account contributions that have been made or will be made after the end of that plan year and within the time required by the Code. No reportable event under Section 4043 of ERISA has occurred with respect to any ONBC Plan other than any reportable event occurring by reason of the transactions contemplated by this Agreement or a reportable event for which the requirement of notice to the PBGC has been waived. (f) None of the ONBC Plans is a "multiemployer pension plan," as such term is defined in Section 3(37) of ERISA, a "multiple employer welfare arrangement," as such term is defined in Section 3(40) of ERISA, or a single employer plan that has two or more contributing sponsors, at least two of whom are not under common control, within the meaning of Section 4064(a) of ERISA. (g) A favorable determination letter or opinion letter has been issued by the Internal Revenue Service with respect to each of the ONBC Plans that is intended to be "qualified" within the meaning of Section 401(a) of the Code to the effect that such plan is so qualified and, to the knowledge of ONBC, no condition exists that could adversely affect the qualified status of any such ONBC Plan. Each of the ONBC Plans that is intended to satisfy the requirements of Section 125 or 501(c)(9) of the Code satisfies such requirements in all material respects. Each of the ONBC Plans has been operated and administered in all material respects in accordance with its terms and applicable laws, including but not limited to ERISA and the Code. 16 (h) There are no actions, suits or claims pending, or, to the knowledge of ONBC, threatened or anticipated (other than routine claims for benefits) against any ONBC Plan, any ONBC Plan fiduciary, the assets of any ONBC Plan or against ONBC or any ERISA Affiliate of ONBC with respect to any ONBC Plan. There is no judgment, decree, injunction, rule or order of any court, governmental body, commission, agency or arbitrator outstanding against or in favor of any ONBC Plan or any fiduciary thereof, other than rules of general applicability. There are no pending or, to the knowledge of ONBC, threatened audits, examinations or investigations by any governmental body, commission or agency involving any ONBC Plan. (i) Except as Previously Disclosed, the consummation of the transactions contemplated by this Agreement will not result in, and is not a precondition to, (i) any current or former employee or director of ONBC or any ERISA Affiliate of ONBC becoming entitled to severance pay, unemployment compensation or any similar payment, (ii) any acceleration in the time of payment or vesting, or increase in the amount, of any compensation due to any such current or former employee or director, or (iii) any renewal or extension of the term of any agreement regarding compensation for any such current or former employee or director. (j) The ONBC Plans have been maintained (and all obligations required to be performed have been performed), in all material respects, in accordance with their terms and with all applicable provisions of ERISA, the Code and other applicable laws. Participation in each ONBC Plan has been made available to all individuals who, pursuant to the terms of such ONBC Plan, are entitled to participate. (k) No ONBC Plan fiduciary has any liability (under ERISA Section 502(l) or otherwise) for breach of fiduciary duty for which ONBC or any ERISA Affiliate of ONBC is liable, or for any other failure to act or comply in connection with the administration or investment of the assets of any ONBC Plan that would cause material liability for which the ONBC or any ERISA Affiliate of ONBC is liable. Nothing has occurred, and nothing is anticipated to occur, that would be a breach of fiduciary responsibility by any fiduciary of any ONBC Plan that would cause material liability for which ONBC or any ERISA Affiliate of ONBC is or would be liable. (l) Except as set forth on Schedule 3.13(l), none of the ONBC Plans provides for post-employment welfare benefits other than (i) a governmental plan to which contributions are mandatory, such as Social Security or Medicare, (ii) any ONBC Plan for which the sole post-employment benefit is required under COBRA or similar laws of any state within the United States, or (iii) where all liabilities under such ONBC Plan are fully the obligation of an insurer or other person unaffiliated with ONBC or any Subsidiary or ERISA Affiliate of ONBC. (m) There are no contracts, plans, agreements or arrangements covering any current or former employee, director, contractor or other service provider that, individually or collectively, have resulted in or could give rise to (i) the payment of any amount that would not be deductible pursuant to the terms of Section 280G of the Code, or (ii) the payment of any excise tax pursuant to Section 409A of the Code. 17 (n) Neither ONBC nor any Subsidiary or ERISA Affiliate of ONBC, nor the PBGC has terminated any plan that is subject to Title IV of ERISA, nor has ONBC, or any Subsidiary or ERISA Affiliate of ONBC incurred any outstanding liability under Section 4062 of ERISA to the PBGC or to a trustee appointed under Section 4042 of ERISA. All premiums due the PBGC with respect to plans that are subject to Title IV of ERISA have been timely paid. (o) No stock or other security issued by ONBC or any of its Subsidiaries or ERISA Affiliates forms or has formed a part of the assets of any ONBC Plan. (p) Any individual who performs, or has performed, services for ONBC or any of its Subsidiaries or ERISA Affiliates and who is not, or has not been, treated as an employee of ONBC or any Subsidiary or ERISA Affiliate for federal income tax purposes is not, and was not, an employee for such purposes. 3.14. Material Contracts. (a) Except as set forth in Schedule 3.14, neither ONBC nor any of its Subsidiaries is a party to, or is bound by, (i) any material agreement or contract or similar arrangement or commitment (any contract or commitment which could reasonably be expected to involve expenditures or receipt by ONBC or any of its Subsidiaries in excess of $25,000 in the aggregate shall be deemed material for these purposes) whether or not made in the ordinary course of business (other than loans or loan commitments and funding transactions in the ordinary course of business consistent with past practice of ONB) or any agreement restricting the nature or geographic scope of its business activities in any material respect, (ii) any agreement, indenture or other instrument relating to the borrowing of money by ONBC or any of its Subsidiaries or the guarantee by ONBC of any of its Subsidiaries of any such obligation, other than instruments relating to transactions entered into in the ordinary course of business consistent with past practice, (iii) any agreement, arrangement or commitment relating to either the employment of a consultant who was a director or executive officer or the employment, election, retention in office or severance of any present or former director or officer, (iv) any contract, agreement or understanding with a labor union or (v) any contract, arrangement or understanding concerning the ownership, transfer or voting of any capital stock of ONBC or any of its Subsidiaries, in each case whether written or oral. (b) Neither ONBC nor any of its Subsidiaries is in default under any material agreement, commitment, arrangement, lease, insurance policy or other instrument (any contract or commitment which could reasonably be expected to involve expenditures or receipt by ONBC or any of its Subsidiaries in excess of $25,000 in the aggregate shall be deemed material for these purposes) whether entered into in the ordinary course of business or otherwise and whether written or oral, and there has not occurred any event that, with the lapse of time or giving of notice or both, would constitute such a default. 3.15. Legal Proceedings. Except as Previously Disclosed, there are no actions, suits or proceedings instituted, pending or, to the knowledge of ONBC, threatened against ONBC or any of its Subsidiaries or against any asset, interest or right of ONBC or any of its Subsidiaries. There are no actual or, to the knowledge of ONBC, threatened actions, suits or proceedings which present a claim to restrain or prohibit the transactions contemplated herein or 18 to impose any material liability or restrictions in connection therewith. There are no actions, suits or proceedings instituted, pending or, to the knowledge of ONBC, threatened against any present or former director or officer of ONBC or any of its Subsidiaries, that would reasonably be expected to give rise to a claim for indemnification. 3.16. Compliance with Laws. ONBC and each of its Subsidiaries is in compliance with all statutes and regulations applicable to the conduct of its business, and neither ONBC nor any of its Subsidiaries has received notification from any agency or department of federal, state or local government (i) asserting a violation of any such statute or regulation, (ii) threatening to revoke any license, franchise, permit or government authorization or (iii) in any way restricting or limiting its operations. Except as Previously Disclosed, neither ONBC nor any of its Subsidiaries is subject to any regulatory or supervisory cease and desist order, agreement, directive, memorandum of understanding or commitment, or has received any communication contemplating any of the foregoing. 3.17. Labor Matters. With respect to their employees, neither ONBC nor its Subsidiaries is a party to any collective bargaining or other similar agreement with any labor organization, group or association or has engaged in any unfair labor practice. Since January 1, 2003, neither ONBC nor its Subsidiaries has experienced any attempt by organized labor or its representatives to make ONBC or any of its Subsidiaries conform to demands of organized labor relating to their employees or to enter into a binding agreement with organized labor that would cover the employees of ONBC or any of its Subsidiaries. To the knowledge of ONBC, there is no unfair labor practice charge or other complaint by any employee or former employee of ONBC or any of its Subsidiaries against any of them pending before any court, arbitrator or governmental agency arising out of ONBC 's or such Subsidiary's activities or such employee's employment with ONBC or such Subsidiary. There is no strike, work stoppage or labor disturbance pending or, to the knowledge of ONBC, threatened against ONBC or any of its Subsidiaries, and neither ONBC nor any of its Subsidiaries has experienced any such strike, stoppage or disturbance since January 1, 2003. 3.18. Brokers and Finders; Fairness Opinion. Neither ONBC nor any of its Subsidiaries, nor any of their respective officers, directors or employees, has engaged any broker, finder or financial advisor or become obligated to or incurred any liability for any fees or commissions in connection with the transactions contemplated herein, except for the firm of Sandler O'Neill & Partners, L.P. to provide financial advice with respect to the transaction provided for in this Agreement. ONBC has Previously Disclosed to CBSI a complete and correct copy of all agreements between ONBC or any of its Subsidiaries and Sandler O'Neill & Partners, L.P., pursuant to which such firm would be entitled to any payment relating to the transactions contemplated hereunder. The Board of Directors of ONBC has received the opinion of its financial advisor, Sandler O'Neill & Partners, L.P. to the effect that the Merger Consideration is fair, from a financial point of view, to the holders of ONBC Common Stock as of the date of this Agreement. 3.19. Insurance. Each of ONBC and its Subsidiaries currently maintains insurance in amounts reasonably adequate for their operations. Neither ONBC nor any of its Subsidiaries has received any notice of a material premium increase over current rates or cancellation with respect to any of their insurance policies or bonds, and within the last three 19 years, neither ONBC nor any of its Subsidiaries has been refused any insurance coverage sought or applied for, and neither ONBC nor any of its Subsidiaries has any reason to believe that existing insurance coverage cannot be renewed as and when the same shall expire, upon terms and conditions as favorable as those presently in effect. ONBC has Previously Disclosed a list of all outstanding claims as of the date hereof by ONBC or any of its Subsidiaries under any insurance policy. The deposits of ONB are insured by the FDIC in accordance with the FDIA, and ONB has paid all assessments and filed all reports required by the FDIA. No proceedings for the revocation or termination of such deposit insurance are pending or, to the knowledge of ONBC, threatened. 3.20. Environmental Liability. (a) During the period that ONBC or any of its Subsidiaries has owned, leased or operated any properties or facilities, neither it nor any other Person has disposed, released, or participated in or authorized the release or threatened release of Hazardous Materials on, from or under such properties or facilities. There is not now nor has there ever been any presence, disposal, release or threatened release of Hazardous Materials on, from or under any of such properties or facilities, which may have occurred prior to ONBC having taken possession of any of such properties or facilities. For the purposes of this Agreement, the terms "disposal," "release," and "threatened release" shall have the definitions assigned thereto by the Comprehensive Environmental Response Compensation and Liability Act of 1980, 42 U. S.C. ss. 9601 et seq., as amended ("CERCLA"). (b) The operations of ONBC or any of its Subsidiaries, and properties that ONBC or any of its Subsidiaries owns or leases, are in compliance with Environmental Law. During the time that ONBC or any of its Subsidiaries has owned or leased its properties and facilities, neither ONBC or any of its Subsidiaries nor, to the knowledge of ONBC, any third party has used, generated, manufactured or stored on, under or about such properties or facilities or transported or arranged for disposal to or from such properties or facilities, any Hazardous Materials in violation of applicable Environmental Law. (c) During the time that ONBC or any of its Subsidiaries has owned or leased its properties and facilities, there has been no litigation brought or, to the knowledge ONBC, threatened against ONBC or any of its Subsidiaries by, or any settlement reached by ONBC or any of its Subsidiaries with, any Person alleging the presence, disposal, release or threatened release of any Hazardous Materials, on from or under any of such properties or facilities. (d) There are no facts, circumstances or conditions relating to the properties and facilities owned or leased by ONBC or any of its Subsidiaries known to ONBC which are reasonably likely to give rise to a claim under any Environmental Law or to any material Environmental Costs and Liabilities. 3.21. Discharge of Fiduciary Obligations. ONBC and each of its Subsidiaries have properly administered and discharged all obligations relating to funds and accounts for which each of them acts as a fiduciary or agent, including but not limited to accounts for which it serves as a trustee, agent, custodian, personal representative, guardian, conservator or investment advisor, in accordance with the terms of the governing documents and applicable state and 20 federal law and regulation and common law. Neither ONBC nor any of its Subsidiaries, nor any of their respective directors, officers or employees acting on behalf of ONBC or any of its Subsidiaries, has committed any breach of trust with respect to any fund or fiduciary or agency account, and the accountings for all funds and accounts are true and correct and accurately reflect the assets of such fund account. 3.22. Intellectual Property. Each of ONBC and its Subsidiaries 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 their respective businesses and operations as presently conducted. The ownership, licensing or use of Intellectual Property by ONBC or any of its Subsidiaries does not conflict with, infringe, misappropriate or otherwise violate the Intellectual Property rights of any other Person. None of such Intellectual Property is subject to any outstanding order, decree, judgment, stipulation, settlement, lien, charge, encumbrance or attachment. Except as Previously Disclosed, upon consummation of the transactions contemplated by this Agreement, the Surviving Corporation and Continuing Bank will be entitled to continue to use all such Intellectual Property without the payment of any fees, licenses or other payments. 3.23. Certain Information. When the Proxy Statement (or any supplement or amendment thereto) is first mailed to the shareholders of ONBC, and at all times subsequent thereto up to and including the time of the ONBC Shareholders' Meeting, such Proxy Statement and all amendments or supplements thereto, with respect to all information set forth or incorporated by reference therein furnished by ONBC relating to ONBC or any of its Subsidiaries, shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements contained therein, in the light of the circumstances under which they were made, not misleading. All information concerning ONBC and its Subsidiaries and their respective directors, officers, and shareholders included (or submitted for inclusion) in any application and furnished by it pursuant to Sections 5.2 or 5.3 of this Agreement shall be true, correct and complete. 3.24. Risk Management Instruments. All interest rate swaps, caps, floors, option agreements, futures and forward contracts and other similar risk management arrangements to which ONBC or any of its Subsidiaries is a party, whether entered into for ONBC's own account, or for the account of one or more of such Subsidiaries or their customers, were entered into (i) in accordance with prudent business practices and all applicable laws, rules, regulations and regulatory policies and (ii) with parties reasonably believed to be financially responsible; and each of them constitutes the valid and legally binding obligation of ONBC or such Subsidiary, enforceable in accordance with its terms (except that enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general equity principles), and neither ONBC nor any of its Subsidiaries nor to ONBC's knowledge, any other party thereto, is in breach of any of its obligations under any such agreement or arrangement. ONBC has previously made available to CBSI all of such agreements and arrangements that are in effect as of the date of this Agreement. 3.25. Interested Party Transactions. Except as Previously Disclosed, no Related Party (as defined below) has been directly or indirectly a party to any contract or other arrangement (whether written or oral) with ONBC or any of its Subsidiaries pertaining to 21 deposits, loans, services (other than as an employee), products, goods or supplies, rental of real or personal property, or otherwise requiring payments, provided from or to ONBC (collectively, the "Interested Party Transactions"). For purposes hereof, the term "Related Party" shall mean a 5%-or-greater shareholder of ONBC, a director or officer of ONBC or any of its Subsidiaries, or any member of such person's family or any corporation, partnership, limited liability company, other business entity or trust in which such person or any member of such person's family has greater than a ten percent (10%) interest, or of which such person or any member of such person's family is an officer, director, partner, member or trustee. Each Interested Party Transaction that is an arrangement to make a loan to the applicable Related Party, or is a deposit or other investment by the applicable Related Party, was an "arms'-length" transaction approved pursuant to the normal underwriting standards, and upon the normal commercial terms and conditions, that are applicable to ONBC's unaffiliated customers. 3.26. Takeover Statutes Not Applicable; No Rights Agreement. The Board of Directors of ONBC has taken all actions (if applicable) so that the restrictions contained in Section 912 of the NYBCL applicable to a "business combination" (as defined therein) will not apply to the execution or delivery of this Agreement or any Transaction Document to which ONBC is a party, or to the consummation of the Merger or the other transactions contemplated hereby or thereby. ONBC has no shareholder rights agreement or plan or other similar plan, agreement or arrangement. 3.27. Investment Securities. Except for pledges to secure public and trust deposits, Federal Reserve borrowings, repurchase agreements and reverse repurchase agreements entered into in "arms'-length" transactions pursuant to normal commercial terms and conditions and other pledges required by law, none of the investments reflected in the ONBC Financial Statements, and none of the material investments made by ONBC or any of its Subsidiaries since December 31, 2005, is subject to any restriction (contractual, statutory or otherwise) that would materially impair the ability of the entity holding such investment freely to dispose of such investment at any time. 3.28. Capitalization. Except as Previously Disclosed to CBSI, ONBC and ONB are "adequately capitalized" as such term is defined in the rules and regulations promulgated by the Federal Reserve Board and the FDIC. 3.29. CRA, Anti-Money Laundering and Customer Information Security. Neither ONBC nor ONB is aware of, has been advised of, or has reason to believe that any facts or circumstances exist which would cause ONB: (i) to be deemed not to be in satisfactory compliance in any material respect with the Community Reinvestment Act of 1977, as amended (the "CRA") and the regulations promulgated thereunder, or to be assigned a rating for CRA purposes by federal or state bank regulators of lower than "satisfactory," or (ii) to be deemed to be operating in violation in any material respect of the federal Bank Secrecy Act, as amended and its implementing regulations (31 CFR part 103), the USA Patriot Act of 2001, Public Law 107-56 (the "USA Patriot Act") and the regulations promulgated thereunder, any order issued with respect to anti-money laundering by the U.S. Treasury's Office of Foreign Assets Control, or any other applicable anti-money laundering statute, rule or regulation; or (iii) to be deemed not to be in satisfactory compliance in any material respect with the privacy of customer information requirements contained in Title V of the Gramm-Leach-Bliley Act of 1999 and 22 regulations promulgated thereunder as well as the provisions of the Information Security Program adopted by ONB pursuant to 12 CFR Part 364. Furthermore, the Board of Directors of ONB has adopted, and ONB has implemented, an anti-money laundering program that meets the requirements in all material respects of Section 352 of the USA Patriot Act and the regulations thereunder. 3.30. Agreements with and Examination by Banking Authorities. Except as Previously Disclosed, neither ONBC nor any of its Subsidiaries is a party to any commitment, letter (other than letters addressed to regulated depository institutions generally), written agreement, memorandum of understanding, order to cease and desist with, is subject to any order or directive specifically naming or referring to ONBC or any of its Subsidiaries by, has been required to adopt any board resolution by, any federal or state governmental entity charged with the supervision or regulation of banks or bank holding companies or engaged in the insurance of bank deposits which is currently in effect and restricts materially the conduct of its business, or in any manner relates to its capital adequacy, loan loss allowances or reserves, ability to perform its obligations hereunder, and neither ONBC nor any of its Subsidiaries has received written notification from any such federal or state governmental entity that any such Person may be required to enter into, or otherwise be subject to, any such commitment, letter, written agreement, memorandum of understanding or cease and desist order. Except as Previously Disclosed, neither ONBC nor any of its Subsidiaries has been informed by any bank regulator that it is contemplating issuing or requesting any such order, directive, agreement, memorandum of understanding, commitment letter or similar submission. Except as Previously Disclosed, neither ONBC nor any of its Subsidiaries is a party to any agreement or arrangement entered into in connection with the consummation of a federally assisted acquisition of a depository institution pursuant to which ONBC or any of its Subsidiaries is entitled to receive financial assistance or indemnification from any governmental agency. Except for normal periodic examinations (the "Bank Examinations") conducted by the Federal Reserve Board, the FDIC or the OCC in the regular course of the business of ONBC and its Subsidiaries, since January 1, 2003, no bank regulator has initiated any proceeding or, to the knowledge of ONBC, investigation into the business or operations of the ONBC or any of its Subsidiaries. ONBC and its Subsidiaries have addressed and responded to, or are addressing, any material violations, criticisms or exceptions by any bank regulator with respect to any Bank Examination. 3.31. Ownership of CBSI Common Stock. Neither ONBC nor any of its affiliates or associates beneficially owns in the aggregate three percent (3%) or more of the outstanding shares of CBSI Common Stock or, to the knowledge of ONBC, has acquired shares of CBSI Common Stock which were at any time in the past two years beneficially owned by an "Interested Shareholder" (as defined below) if such acquisition occurred other than pursuant to a public offering within the meaning of the Securities Act, in each case such that ONBC would be deemed an "Interested Shareholder" under CBSI's certificate of incorporation. 3.32. Internal Controls. Neither ONBC's nor any of its Subsidiaries' records, systems, controls data or information are recorded, stored, maintained, operated or otherwise wholly or partly dependent on or held by any means (including any electronic, mechanical or photographic process, whether computerized or not) which (including all means of access thereto and therefrom) are not under their exclusive ownership and direct control, except as would not reasonably be expected to have a material adverse effect on the system of internal accounting 23 controls described in the next sentence. ONBC and its Subsidiaries have devised and maintain a system of internal accounting controls sufficient to provide reasonable assurances regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. 3.33. Disclosure. None of the representations and warranties of ONBC contained in this Agreement or any of the Transaction Documents to which it is a party, taken as a whole, contains or will contain any untrue statement of a material fact, or omits to state any material fact required to be stated or necessary to make any such information or document, in light of the circumstances, not misleading. ARTICLE IV REPRESENTATIONS AND WARRANTIES OF CBSI AND MERGER SUB Except as Previously Disclosed, CBSI and Merger Sub hereby represent and warrant to ONBC as follows: 4.1. Organization, Standing and Authority of CBSI and Merger Sub. Each of CBSI and Merger Sub is a duly organized corporation or bank, validly existing and in good standing under the laws of its incorporation with full corporate power and authority to own, lease and operate the properties it purports to own, lease or operate and to carry on its business as now conducted, except where the failure to be in good standing or to have such power or authority would not have a Material Adverse Effect on CBSI. CBSI is a registered bank holding company under the Bank Holding Company Act. CBSI is duly licensed or qualified to do business in the states of the United States and foreign jurisdictions where its ownership or leasing of property or the conduct of its business requires such qualification or licensing, except where failure to be so licensed or qualified would not have a Material Adverse Effect on CBSI. 4.2. Authorized and Effective Agreement. (a) Each of CBSI and Merger Sub has all requisite corporate power and authority to enter into and perform all of its obligations under this Agreement and each of the Transaction Documents to which it is a party. The execution and delivery of this Agreement and each such Transaction Agreement and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action in respect thereof on the part of CBSI and Merger Sub, as the case may be. (b) This Agreement and each Transaction Document to which CBSI or Merger Sub is a party have been duly executed and delivered by CBSI or Merger Sub, respectively, and assuming the accuracy of the representation contained in Section 3.4(b) hereof, this Agreement and each Transaction Document to which CBSI or Merger Sub is a party constitutes the legal, valid and binding obligations of CBSI or Merger Sub, as the case may be, enforceable against such party in accordance with its terms, except that such enforceability may 24 be subject to bankruptcy, insolvency and other laws of general applicability relating to or affecting creditors' rights and to general equity principles. (c) Neither the execution and delivery by CBSI or Merger Sub of this Agreement or any Transaction Document to which it is a party, nor consummation of the transactions contemplated hereby or thereby, nor compliance by CBSI or Merger Sub with any of the provisions hereof or thereof shall (i) assuming the accuracy of the representation contained in Section 3.31 hereof, conflict with or result in a breach of any provision of the articles or certificate of incorporation or bylaws of CBSI or Merger Sub, (ii) assuming the consents and approvals contemplated by Section 5.3 hereof and the consents and approvals which are Previously Disclosed are duly obtained, constitute or result in a breach of any term, condition or provision of, or constitute a default under, or give rise to any right of termination, cancellation or acceleration with respect to, or result in the creation of any lien, charge or encumbrance upon any property or asset of CBSI or Merger Sub pursuant to, any note, bond, mortgage, indenture, license, agreement or other instrument or obligation to which CBSI or Merger Sub is a party, or (iii) assuming the consents and approvals contemplated by Section 5.3 hereof and the consents and approvals which are Previously Disclosed are duly obtained, conflict with or violate any law, order, writ, injunction, decree, statute, rule or regulation applicable to CBSI or Merger Sub or their respective assets; except, in case of clauses (ii) and (iii) above, for any such breach, default, right, lien, charge, encumbrances, violation or conflict which, individually or in the aggregate, would not have a Material Adverse Effect on CBSI. (d) Other than as contemplated by Section 5.3 hereof and the consents and approvals which are Previously Disclosed, no consent, approval or authorization of, or declaration, notice, filing or registration with, any governmental or regulatory authority, or any other Person, is required to be made or obtained by CBSI or Merger Sub on or prior to the Closing Date in connection with the execution, delivery and performance of this Agreement or any of the Transaction Documents to which it is a party or the consummation of the transactions contemplated hereby or thereby. As of the date hereof, neither CBSI nor Merger Sub is aware of any reason that the condition set forth in Section 6.1(b) of this Agreement would not be satisfied. 4.3. Regulatory Filings. Each of CBSI and its Subsidiaries has filed all reports required by statute or regulation to be filed with any federal or state bank regulatory agency, except where the failure to so file would not have a Material Adverse Effect on CBSI, 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. 4.4. Legal Proceedings. Except as Previously Disclosed, there are no actions, suits or proceedings instituted, pending or, to the knowledge of CBSI, threatened against CBSI or any of its Subsidiaries or against any asset, interest or right of CBSI or any of its Subsidiaries that, if decided against CBSI or any of its Subsidiaries, would, individually or in the aggregate, have a Material Adverse Effect on CBSI. There are no actual or threatened actions, suits or proceedings which present a claim to restrain or prohibit the transactions contemplated herein or to impose any material liability or restrictions in connection therewith. 4.5. Certain Information. When the Proxy Statement (or any supplement or amendment thereto) is first mailed to the shareholders of ONBC, and at all times subsequent 25 thereto up to and including the time of the ONBC Shareholders' Meeting, such Proxy Statement and all amendments or supplements thereto, with respect to all information set forth or incorporated by reference therein furnished by CBSI and relating to CBSI or any of its Subsidiaries, shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements contained therein, in the light of the circumstances under which they were made, not misleading. All information concerning CBSI and its directors, officers, and shareholders included (or submitted for inclusion) in any application and furnished by it pursuant to Sections 5.2 or 5.3 of this Agreement shall be true, correct and complete in all material respects. 4.6. Financial Resources. CBSI has, or will have prior to the Effective Time, sufficient cash funds to pay the aggregate Merger Consideration. 4.7. Compliance with Laws. CBSI and each of its Subsidiaries conducts its business in compliance with all statutes and regulations applicable to the conduct of its business in all material respects, and neither CBSI nor any of its Subsidiaries has received notification from any agency or department of federal, state or local government (i) asserting a violation of any such statute or regulation, (ii) threatening to revoke any license, franchise, permit or government authorization or (iii) in any way restricting or limiting its operations. Neither CBSI nor any of its Subsidiaries is subject to any regulatory or supervisory cease and desist order, agreement, directive, memorandum of understanding or commitment, or has received any communication contemplating any of the foregoing. 4.8. CRA, Anti-Money Laundering and Customer Information Security. Neither CBSI nor Community Bank is aware of, has been advised of, or has reason to believe that any facts or circumstances exist which would cause CBSI or Community Bank: (i) to be deemed not to be in satisfactory compliance in any material respect with the CRA and the regulations promulgated thereunder, or to be assigned a rating for CRA purposes by federal or state bank regulators of lower than "satisfactory;" or (ii) to be deemed to be operating in violation in any material respect of the federal Bank Secrecy Act, as amended and its implementing regulations (31 CFR part 103), the USA Patriot Act and the regulations promulgated thereunder, any order issued with respect to anti-money laundering by the U.S. Treasury's Office of Foreign Assets Control, or any other applicable anti-money laundering statute, rule or regulation; or (iii) to be deemed not to be in satisfactory compliance in any material respect with the privacy of customer information requirements contained in Title V of the Gramm-Leach-Bliley Act of 1999 and regulations promulgated thereunder. Furthermore, the Board of Directors of CBSI has adopted, and CBSI has implemented, an anti-money laundering program that meets the requirements in all material respects of Section 352 of the USA Patriot Act and the regulations thereunder. 4.9. Agreements with and Examination by Banking Authorities. Neither CBSI nor any of its Subsidiaries is a party to any commitment, letter (other than letters addressed to regulated depository institutions generally), written agreement, memorandum of understanding, order to cease and desist with, is subject to any order or directive specifically naming or referring to CBSI or any of its Subsidiaries by, has been required to adopt any board resolution by, any federal or state governmental entity charged with the supervision or regulation of banks or bank holding companies or engaged in the insurance of bank deposits which is currently in effect and 26 restricts materially the conduct of its business, or in any manner relates to its capital adequacy, loan loss allowances or reserves, ability to perform its obligations hereunder, and neither CBSI nor any of its Subsidiaries has received written notification from any such federal or state governmental entity that any such Person may be required to enter into, or otherwise be subject to, any such commitment, letter, written agreement, memorandum of understanding or cease and desist order. Neither CBSI nor any of its Subsidiaries has been informed by any bank regulator that it is contemplating issuing or requesting any such order, directive, agreement, memorandum of understanding, commitment letter or similar submission. Neither CBSI nor any of its Subsidiaries is a party to any agreement or arrangement entered into in connection with the consummation of a federally assisted acquisition of a depository institution pursuant to which CBSI or any of its Subsidiaries is entitled to receive financial assistance or indemnification from any governmental agency. Except for Bank Examinations since January 1, 2003, no bank regulator has initiated any proceeding or, to the knowledge of CBSI, investigation into the business or operations of the CBSI or any of its Subsidiaries. ARTICLE V COVENANTS 5.1. ONBC Shareholders' Meeting. ONBC shall call and give notice of the ONBC Shareholders' Meeting as promptly as practicable for the purpose of voting upon the approval of this Agreement, and ONBC shall use all reasonable efforts to hold the ONBC Shareholders' Meeting as soon as practicable thereafter, subject to the applicable notice requirements under the NYBCL. Subject to the fiduciary duties of the Board of Directors of ONBC, as determined after consultation with outside counsel and financial advisors, (i) the Board of Directors of ONBC shall recommend that the shareholders vote in favor of the approval of this Agreement, and (ii) ONBC shall solicit from its shareholders proxies in favor of approval of this Agreement and shall take all other action necessary or desirable to secure the vote of shareholders to obtain such approval. Notwithstanding any withdrawal, modification or change in any recommendation of the Board of Directors of ONBC, to the fullest extent permitted by law, ONBC agrees to hold the ONBC Shareholders' Meeting within the time period specified above unless this Agreement is terminated in accordance with its terms. 5.2. ONBC Proxy Statement. As promptly as practicable after the date hereof, ONBC shall prepare, and CBSI shall cooperate in the preparation of, the Proxy Statement to be mailed to the shareholders of ONBC in connection with obtaining their approval of this Agreement. ONBC shall provide CBSI and its counsel a reasonable opportunity for review and comment on the Proxy Statement. 5.3. Applications. As promptly as practicable after the date hereof, and after a reasonable opportunity for review by the other party and its counsel, CBSI, Merger Sub and ONBC shall submit any requisite applications for prior approval of, and notices with respect to, the transactions contemplated herein to the OCC and the Federal Reserve Board, and each of the parties hereto shall, and shall cause its 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 or desirable for consummation of the Merger, the Short-Form Merger or the Bank Merger. ONBC, on one hand, and CBSI and Merger Sub, on the other hand, each 27 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. Each party agrees to consult with the other parties with respect to obtaining all necessary approvals and consents and each will keep the other apprised of the status of matters relating to such approvals and consents. 5.4. Best Efforts. (a) Subject to the terms and conditions of this Agreement, each of the parties hereto will use reasonable best efforts in good faith to (i) furnish such information as may be required or desirable in connection with the preparation of the documents referred to in Sections 5.2 and 5.3 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, the Short-Form Merger and the Bank Merger at the earliest possible date, including, without limitation, (1) obtaining the consent or approval of any Person whose consent or approval is required for consummation of the transactions contemplated hereby, provided that ONBC shall not agree to make any payments or modifications to agreements in connection therewith without the prior written consent of CBSI, and (2) requesting the delivery of appropriate opinions, consents and letters from its counsel and independent auditors. Subject to the terms and conditions of this Agreement, 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 party, any action that would substantially impair the prospects of completing the Merger, the Short-Form Merger or the Bank Merger pursuant to this Agreement, or that would materially delay such completion. (b) Each party hereto shall give prompt notice to the other party of (i) the occurrence, or failure to occur, of any event which occurrence or failure would be reasonably likely to cause any representation or warranty contained in this Agreement to be untrue or inaccurate at any time from the date hereof to the Closing Date such that the condition set forth in Section 6.2(a) or 6.3(a), as applicable, would not be met if such failure to be true or accurate were to occur or be continuing on the Closing Date, and (ii) any material failure of any party 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 best efforts in good faith to remedy such failure. (c) From the date of this Agreement through the Effective Time, to the extent permitted by law, ONBC shall cause ONB to provide such assistance to Community Bank as is reasonably necessary for Community Bank to prepare for the conversion and transfer in connection with the Bank Merger all information concerning the loans, deposits and other assets and liabilities of ONB into Community Bank's own data processing system, with a view to facilitating the integration of Community Bank's and ONB's systems and otherwise combining Community Bank's and ONB's operations upon consummation of the Bank Merger. Such assistance shall include providing Community Bank with computer file instructions with respect to the information in its data processing system regarding the assets and liabilities of ONB, together with operational procedures designed to implement the transfer of such information to Community Bank, provided that the confidentiality of customer information shall be preserved and no such information shall be transferred until the Effective Time. After execution of this 28 Agreement, ONB and Community Bank shall each designate an individual to serve as liaison concerning the transfer of data processing information and other similar operational matters. (d) 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 consents) as the other party may reasonably request for disclosure purposes under the Securities Laws. 5.5. Investigation and Confidentiality. Each of the parties hereto will keep the other advised of all material developments relevant to its and its Subsidiaries' businesses and to consummation of the transactions contemplated herein. Each of the parties hereto may make or cause to be made such investigation of the financial and legal condition of the other as such party reasonably deems necessary or advisable in connection with the transactions contemplated herein, provided, however, that such investigation shall be reasonably related to such transactions and the party conducting such investigation shall use its reasonable best efforts to minimize any disruptions to the operations of the other party. Each of the parties hereto agrees to furnish the other and the other's advisors with such financial data and other information with respect to its business and properties as such other party shall from time to time reasonably request. No investigation pursuant to this Section 5.5 or otherwise shall affect or be deemed to modify any representation or warranty made by, or the conditions to the obligations to consummate the Merger of, any party hereto. Each party hereto shall hold all information furnished by the other party or any of such party's Subsidiaries or representatives pursuant to this Agreement in confidence and in accordance with the confidentiality agreement dated April 10, 2006, between ONBC and CBSI (the "Confidentiality Agreement"). 5.6. Press Releases and Other Public Disclosures. ONBC and CBSI shall agree with each other as to the form and substance of any press release related to this Agreement or the transactions contemplated hereby, and shall consult and agree with each other as to the form and substance of other public disclosures related thereto, including without limitation, any communications with securities market professionals and investors, provided, however, that nothing contained herein shall prohibit any party, following notification to the other party, from making any disclosure which is required by applicable law or NYSE rules. 5.7. Actions Pending the Merger. (a) Prior to the Closing Date, and except as otherwise provided for by this Agreement or consented to or approved in writing by the other party hereto, each of CBSI and ONBC shall, and shall cause each of its Subsidiaries to, use its reasonable best efforts to preserve its properties, business and relationships with customers, employees and other persons. (b) Except with the prior written consent of CBSI (which consent will not be unreasonably withheld) or as expressly permitted by this Agreement, ONBC shall not, and shall not permit any of its Subsidiaries to: (1) carry on its business other than in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, or incur an obligation in excess 29 of $25,000 in the aggregate or which requires performance over more than one year (other than loans and investments booked in the usual, regular and ordinary course of business); (2) declare, set aside, make or pay any dividend or other distribution in respect of its capital stock or earnings, other than dividends of $0.95 per share of ONBC Common Stock on each of October 1, 2006 and January 1, 2007, subject in each case to the approval of ONBC's Board of Directors and any applicable regulatory requirements; (3) issue any shares of its capital stock or permit any treasury shares to become outstanding; redeem, purchase or otherwise acquire any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock; (4) incur any additional debt obligation or other obligation for borrowed money other than in the ordinary course of business consistent with past practice; (5) issue, grant or authorize any Rights (or amend or modify the terms or exercisability of any outstanding Rights) or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization, or redeem, repurchase or otherwise acquire any shares of its capital stock; (6) amend or otherwise change its certificate of incorporation or articles of association or bylaws; impose, or suffer the imposition, on any share of capital stock of ONBC of any lien, charge or encumbrance; (7) merge or consolidate with, or acquire control over, any Person or create any Subsidiary; (8) waive or release any material right or cancel or compromise any material debt or claim other than in the ordinary course of business consistent with past practice with prior notice to CBSI; (9) sell, liquidate, pledge or encumber or dispose of, or acquire any, assets with a value in excess of $25,000 (other than assets acquired in foreclosure, in lieu of foreclosure or other legal proceedings relating to collateral for loans in each case in the ordinary course of business consistent with past practice); make any capital expenditure in excess of $25,000 in the aggregate; or establish new branches or other similar facilities, close existing branches or similar facilities or enter into or modify any leases or other contracts relating thereto; (10) other than as Previously Disclosed, increase the rate of compensation of, pay or agree to pay any bonus to, or provide any additional employee benefit or incentive (including without limitation, any "change of control" or severance payment) to, any of its directors, officers or employees except as required by law or contractual obligation in effect as of the date hereof; or become party to, adopt, terminate, amend, or commit itself to, any pension, retirement, profit sharing or welfare benefit plan or agreement or employment agreement, other than in the ordinary course of business consistent with past practice or except as required by existing plans or agreements; or accelerate the vesting of any deferred compensation; 30 (11) change its lending, investment, asset/liability management or other material banking policies in any material respect except as may be required by changes in applicable law, or as required by the OCC; (12) engage or enter into any new Interested Party Transactions, or modify, extend or renew any existing Interested Party Transactions other than renewal of loans or credit facilities in the ordinary course of business consistent with past practice, on terms and conditions substantially identical to the terms being renewed; (13) change its methods of accounting in effect at December 31, 2005, except as required by changes in generally accepted accounting principles concurred in by its independent certified public accountants, or change any of its methods of reporting income, deductions or other items for federal income tax purposes from those employed in the preparation of its federal income tax returns for the fiscal year ended December 31, 2005, except as required by applicable law; (14) take any action that would result in any of its representations or warranties in this Agreement being or becoming untrue in any material respects at any time prior to the Effective Time, or in any of the conditions to the Merger set forth in Article VI not being satisfied, except as may be required by law; or (15) agree to do any of the foregoing or take any other action which would in any manner interfere with, impede, delay, or make more costly the consummation of the transactions contemplated hereby. (c) CBSI shall not, except with the prior written consent of ONBC (which consent shall not unreasonably be withheld) or as expressly permitted by this Agreement, carry on its business other than in the usual, regular and ordinary course in substantially the same manner as heretofore conducted; provided, however, that nothing herein shall be construed to prevent CBSI from acquiring or agreeing to acquire any Person, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner, such Person or taking actions reasonably related thereto, so long as such transaction would not materially delay or prevent the consummation of the transactions contemplated by this Agreement. 5.8. Certain Policies. Prior to the Effective Time, but only after the satisfaction of the condition set forth in Section 6.1(b) hereof (other than with respect to any regulatory notices and filings which are to be given or made on or after the Closing Date) and the receipt of the shareholder approval contemplated by Section 5.1 hereof, (i) ONBC shall, consistent with generally accepted accounting principles and on a basis mutually satisfactory to it and CBSI, modify and change its loan, litigation and real estate valuation policies and practices (including loan classifications and levels of reserves) so as to be applied on a basis that is consistent with that of CBSI, and (ii) ONBC and CBSI shall review the adequacy of reserves for loan losses currently established by ONBC and, if deemed warranted by both parties under generally accepted accounting principles, ONBC shall make mutually acceptable changes to such reserves. From the date hereof until the Effective Time, ONBC shall cooperate with CBSI in mutually agreed actions designed to improve the short and long-term profitability of ONBC and 31 eliminate or reduce any potential earnings per share dilution of CBSI upon consummation of the Merger. 5.9. Closing. The transactions contemplated by this Agreement shall be consummated at a closing to be held at the offices of the law firm of Bond, Schoeneck & King, PLLC, One Lincoln Center, Syracuse, New York on the first business day, or other mutually agreeable time, following satisfaction or waiver of the conditions to consummation of the Merger set forth in Article VI hereof. 5.10. Employee Benefits; Indemnification. (a) The current employees of ONBC or any of its Subsidiaries who continue as employees of CBSI or its Subsidiaries after the Effective Time shall be given credit for past service with ONBC for purposes of determining eligibility for and vesting of employee benefits (but not for pension benefit accrual purposes) under all welfare and retirement programs maintained by CBSI or its Subsidiaries (collectively, the "CBSI Plans") in which such employees participate following the Merger. In the event that the employment of any current employee of ONBC or any of its Subsidiaries shall be terminated without cause after the Effective Time, such employees shall be entitled to receive benefits under CBSI's severance plan (without duplication, however, with any payment under any severance or separation plan, program, agreement or arrangement maintained or provided by ONBC or any of its Subsidiaries) in accordance with its terms. (b) Prior to the Effective Time, ONBC shall take all actions that may reasonably be requested by CBSI in writing upon advance notice of not less than 90 days with respect to (i) causing one or more ONBC Plans to terminate as of the Effective Time or for benefit accrual and entitlements to cease as of the Effective Time, (ii) causing the continuation on and after the Effective Time of any contract, arrangement or insurance policy relating to any ONBC Plan for such period as may be requested by CBSI, or (iii) cooperating with CBSI to facilitate the merger of any ONBC Plan into any CBSI Plan as of or following the Effective Time. Each ONBC Plan that is not terminated or amended pursuant to clause (i) above, or merged into a CBSI Plan pursuant to clause (iii) above, shall be assumed by CBSI to the extent permitted by the terms of the ONBC Plan; provided that, to the extent necessary, each ONBC Plan shall be amended, effective prior to the Effective Time, to provide that ONBC and its successors shall have the right to amend and/or terminate each such plan at any time, including any time on or after the Effective Time. (c) CBSI or the Merger Sub shall provide COBRA continuation coverage, to the extent required by the Code, to any qualified beneficiary who (i) is receiving COBRA continuation coverage as of the Effective Time, or (ii) experiences a qualifying event (as such term is defined in the Code and implementing regulations) as a result of the Merger. (d) (1) In the event of any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including, without limitation, any such claim, action, suit, proceeding or investigation in which any person (the "Indemnified Party") who is now, or has been at any time prior to the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of ONBC is, or is threatened to be, 32 made a party based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that he is or was a director, officer or employee of ONBC or any of its Subsidiaries, or (ii) this Agreement or any of the transactions contemplated hereby, whether in any case asserted or arising before or after the Effective Time, the parties hereto agree to cooperate and use their best efforts to defend against and respond thereto. For a period of six years after the Effective Time, CBSI shall indemnify and hold harmless, to the fullest extent permitted by law, each such Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorney's fees and expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by the DGCL upon receipt of any undertaking required by the DGCL), judgments, fines and amounts paid in settlement in connection with any such threatened or actual claim, action, suit, proceeding or investigation, and in the event of any such threatened or actual claim, action, suit, proceeding or investigation (whether asserted or arising before or after the Effective Time), the Indemnified Parties may retain counsel reasonably satisfactory to them after consultation with CBSI; provided, however, that (1) CBSI shall have the right to assume the defense thereof and upon such assumption CBSI shall not be liable to any Indemnified Party for any legal expenses of other counsel or any other expenses subsequently incurred by any Indemnified Party in connection with the defense thereof, except that if CBSI elects not to assume such defense or counsel for the Indemnified Parties reasonably advises the Indemnified Parties that there are issues which raise conflicts of interest between CBSI and the Indemnified Parties, the Indemnified Parties may retain counsel reasonably satisfactory to them after notification, and CBSI shall pay the reasonable fees and expenses of such counsel for the Indemnified Parties, (2) CBSI shall be obligated pursuant to this paragraph to pay for only one firm of counsel for all Indemnified Parties, (3) CBSI shall not be liable for any settlement effected without its prior written consent, and (4) CBSI shall have no obligation hereunder to any Indemnified Party when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and nonappealable, that indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law. Any Indemnified Party wishing to claim indemnification under this Section 5.10(d), upon becoming aware of any such claim, action, suit, proceeding or investigation, shall promptly notify CBSI thereof, provided that the failure of any Indemnified Party to so notify CBSI shall relieve it of its obligations to indemnify hereunder to the extent that such failure materially prejudices CBSI. (2) CBSI agrees that all rights to indemnification and all limitations on liability existing in favor of the directors, officers and employees of ONBC and any of its Subsidiaries as provided in their respective certificates of incorporation, bylaws or similar governing documents as in effect as of the date of this Agreement with respect to matters occurring prior to the Effective Time shall survive the Merger, and shall continue in full force and effect, and shall be honored by such entities or their respective successors as if they were the indemnifying party thereunder, without any amendment thereto, for a period of six years from the Effective Time. (3) CBSI will use its reasonable best efforts directly or indirectly to cause the persons who served as directors or officers of ONBC on or before the Effective Time to be covered by ONBC's existing directors' and officers' liability insurance policy (provided that CBSI may substitute therefor policies of at least the same coverage and amounts containing 33 terms and conditions which are not less advantageous than such policy) but in no event shall any insured person be entitled under this Section to insurance coverage more favorable than that provided to him or her in such capacities as of the date hereof with respect to acts or omissions resulting from their service as such on or prior to the Effective Time. Such insurance coverage shall commence at the Effective Time and will be provided for a period of no less than six years after the Effective Time; provided, however, that in no event shall CBSI be required to expend annually more than 200% of the current amount (the "Maximum Amount") expended by ONBC per year to maintain or procure insurance coverage pursuant hereto, and if such coverage cannot be maintained or procured for the Maximum Amount, then CBSI shall be required only to procure or maintain such coverage, if any, that can be purchased with the Maximum Amount. ONBC agrees to renew any such existing insurance or to purchase any "discovery period" insurance provided for thereunder at CBSI's request. 5.11. Takeover Laws. No party hereto shall take any action that would cause the transactions contemplated by this Agreement or any of the Transaction Documents to be subject to the requirements imposed by any Takeover Law, and each of them shall take all necessary steps within its control to exempt (or ensure the continued exemption of) all such transactions from, or if necessary challenge the validity or applicability of, any applicable Takeover Law, as now or hereafter in effect. For purposes of this Section, "Takeover Law" shall mean any legal requirement related to mergers, business combinations, sale of control, affiliate transactions, or antitrust laws or regulations which is applicable to the transactions contemplated by this Agreement. 5.12. No Solicitation. (a) Subject to Section 5.12(b) hereof, from and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, neither ONBC nor any Person acting on behalf of ONBC shall, directly or indirectly, (a) solicit, initiate or respond to discussions or engage in negotiations with any Person (whether such negotiations are initiated by ONBC or otherwise) or take any other action intended or designed to facilitate the efforts of any Person, other than CBSI, relating to the possible acquisition, recapitalization or other business combination involving ONBC or any of its Subsidiaries (whether by way of merger, purchase of capital stock, purchase of assets or otherwise) or any material portion of its capital stock or assets (with any such efforts by any such Person, including a firm proposal to make such an acquisition, to be referred to as "Takeover Proposal"), (b) provide non-public information with respect to ONBC or any of its Subsidiaries to any Person, other than CBSI and its professional advisors or ONBC's professional advisors, or (c) enter into an agreement, or a letter of intent or term sheet, with any Person, other than CBSI, providing for a possible Takeover Proposal. If ONBC receives any offer or proposal relating to a Takeover Proposal, ONBC shall promptly (but in any event within 24 hours of receipt) notify CBSI thereof, including information as to the identity of the party making any such offer or proposal and the specific terms of such offer or proposal, as the case may be. (b) (i) Notwithstanding anything to the contrary contained in Section 5.12(a), prior to the Closing or the termination of this Agreement in accordance with its terms, ONBC may, to the extent the Board of Directors of ONBC determines, in good faith, after consultation with outside legal counsel, that the Board's fiduciary duties require it to do so, 34 participate in discussions or negotiations with, and, subject to the requirements of Section 5.12(c), furnish non-public information, and afford access to the properties, books or records of ONBC or any of its Subsidiaries to any Person after such Person has delivered to ONBC in writing, an unsolicited bona fide Takeover Proposal with respect to ONBC or any of its Subsidiaries (which has not been withdrawn) which the Board of Directors of ONBC in its good faith judgment determines, after reasonable inquiry and consultation with its financial advisor (i) would be reasonably likely to result in a transaction more favorable than that contemplated by this Agreement to the shareholders of ONBC (which judgment must be reasonable), and (ii) that the Person making such Takeover Proposal is financially capable of consummating such Takeover Proposal or that the financing necessary to consummate such Takeover Proposal, to the extent required, is then committed or is capable of being obtained by such Person (a "Superior Proposal"). In addition, notwithstanding the provisions of Section 5.12(a) above, in connection with a submitted, written bona fide Takeover Proposal or potential Takeover Proposal, ONBC shall refer any third party to this Section 5.12 or make a copy of this Section 5.12 available to such third party. (ii) In the event ONBC or any of its Subsidiaries receives a Superior Proposal, nothing contained in this Agreement (but subject to the terms of this Section 5.12(b)) will prevent the Board of Directors of ONBC from recommending such Superior Proposal to the shareholders of ONBC, if the Board determines, in good faith, after consultation with outside legal counsel, that such action is required by its fiduciary duties; in such case, the Board of Directors of ONBC may withdraw, modify or refrain from making its recommendations set forth in the relevant sections in this Agreement; provided, however, that ONBC shall (A) provide CBSI notice of any meeting of the Board of Directors of ONBC at which such Board of Directors is reasonably expected to consider a Superior Proposal at the same time that notice thereof is given to the Board of Directors, (B) not recommend to its shareholders a Superior Proposal for a period of not less than the greater of two full business days and 48 hours after CBSI's receipt of a copy of such Superior Proposal and the identity of the third party, and (C) not enter into a definitive agreement relating to such Superior Proposal unless CBSI fails to match the terms of the Superior Proposal within the greater of two full business days and 48 hours after CBSI's receipt of a copy of such Superior Proposal and the identity of the third party; and provided, further, that unless this Agreement is terminated pursuant to Article VII, nothing contained in this Section 5.12(b) shall limit ONBC's obligation to hold and convene a special meeting of its shareholders (regardless of whether the recommendation of the Board of Directors of ONBC shall have been withdrawn, modified or not yet made) or to provide the shareholders of ONBC with material information relating to such meeting. (c) Notwithstanding anything to the contrary herein, neither ONBC nor any of its Subsidiaries shall provide any non-public information to a third party unless: (x) ONBC provides such non-public information pursuant to a nondisclosure agreement with terms regarding the protection of oral or written confidential information at least as restrictive as such terms in the confidentiality agreement heretofore entered into by the parties hereto; and (y) such non-public information has been previously delivered or made available to CBSI. 5.13. Advisory Board. If requested by CBSI, ONBC shall use its commercially reasonable efforts to assist CBSI in recruiting members of a regional advisory board (the "Advisory Board") to be established by CBSI after the Effective Time, 5.17. the purpose and function 35 of which shall be to advise Community Bank on deposit, lending and financial services activities in ONB's former market area and to insure a smooth transition of business relationships in connection with the Merger and the continued development of business relationships throughout such market area. The composition of, and the terms of participation on, the Advisory Board (including compensation therefor, frequency and location of meetings, etc.) shall be as determined by CBSI in its sole discretion. ARTICLE VI CONDITIONS PRECEDENT 6.1. Conditions Precedent to Obligations of CBSI and ONBC. The respective obligations of the parties to effect the Merger and to consummate the other transactions contemplated by this Agreement and the Transaction Documents shall be subject to satisfaction or waiver of the following conditions at or prior to the Closing Date: (a) All corporate action necessary to authorize the execution, delivery and performance of this Agreement and each of the other Transaction Documents (including, without limitation, the Bank Merger) and consummation of the transactions contemplated hereby and thereby, including without limitation the shareholder approval contemplated by Section 5.1 hereof, shall have been duly and validly taken; (b) The parties hereto shall have received all regulatory approvals required or mutually deemed necessary in connection with the transactions contemplated by this Agreement or any of the other Transaction Documents (including, without limitation, the Bank Merger), 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; and (c) There shall not have been instituted, pending or threatened in writing any action or proceeding by any governmental authority or administrative agency or in a court of competent jurisdiction, nor shall there be in any effect any judgment, order, decree or injunction of any governmental authority, administrative agency or court of competent jurisdiction, or any other legal restraint, preventing or seeking to prevent the consummation of the transactions contemplated by this Agreement. 6.2. Conditions Precedent to Obligations of ONBC. The obligations of ONBC to effect the Merger and to consummate the other transactions contemplated by this Agreement and the Transaction Documents shall be subject to satisfaction of the following additional conditions at or prior to the Closing Date unless waived by ONBC pursuant to Section 7.5 hereof: (a) The representations and warranties of CBSI and Merger Sub set forth in Article IV hereof shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (or, in the case of any representation and warranty which specifically relates to an earlier date, as of such earlier date), except as otherwise contemplated by this Agreement or consented to in writing by 36 ONBC; provided, however, that (i) in determining whether or not the condition contained in this paragraph (a) is satisfied, no effect shall be given to any qualifications or exceptions in any such representation or warranty relating to materiality or Material Adverse Effect, but (ii) the condition contained in this paragraph (a) shall be deemed to be satisfied unless the failure of such representations and warranties to be so true and correct constitute, individually or in the aggregate, a material adverse effect on CBSI and Merger Sub's ability to consummate the transactions contemplated by this Agreement and the other Transaction Documents; (b) CBSI and Merger Sub shall have in all material respects performed all obligations and complied with all covenants required by this Agreement to be performed or complied with at or prior to the Closing Date; (c) Each of CBSI and Merger Sub shall have delivered to ONBC a certificate, dated the Closing Date and signed by its President and Chief Executive Officer, to the effect that the conditions set forth in paragraphs (a) and (b) of this Section have been satisfied; and (d) ONBC shall have received a written certification signed by an authorized officer of the Exchange Agent confirming that the Exchange Agent holds in its possession cash or other immediately available funds sufficient to satisfy the requisite payment of the aggregate Merger Consideration under this Agreement. 6.3. Conditions Precedent to Obligations of CBSI and Merger Sub. The obligations of CBSI and Merger Sub to effect the Merger and to consummate the other transactions contemplated by this Agreement and the Transaction Documents shall be subject to satisfaction of the following additional conditions at or prior to the Closing Date, unless waived by CBSI pursuant to Section 7.5 hereof: (a) The representations and warranties of ONBC set forth in Article III hereof shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (or, in the case of any representation and warranty which specifically relates to an earlier date, as of such earlier date), except as otherwise contemplated by this Agreement or consented to in writing by CBSI; provided, however, that (i) in determining whether or not the condition contained in this paragraph (a) is satisfied, no effect shall be given to any qualifications or exceptions in any such representation or warranty relating to materiality or Material Adverse Effect but (ii) the condition contained in this paragraph (a) shall be deemed to be satisfied unless the failure of such representations and warranties to be so true and correct constitute, individually or in the aggregate, a Material Adverse Effect on ONBC; (b) ONBC shall have in all material respects performed all obligations and complied with all covenants required by this Agreement to be performed or complied with at or prior to the Closing Date; (c) ONBC shall have delivered to CBSI a certificate, dated the Closing Date and signed by its President and Chief Executive Officer, to the effect that the conditions set forth in paragraphs (a) and (b) of this Section have been satisfied; 37 (d) Dissenters' rights shall not have been exercised with respect to more than eight percent (8%) of the outstanding shares of ONBC Common Stock; and (e) To the extent that any material, lease, license, loan, financing agreement or other contract or agreement to which ONBC or any of its Subsidiaries is a party requires the consent of or waiver from the other party thereto as a result of the transactions contemplated by this Agreement, such consent or waiver shall have been obtained. ARTICLE VII TERMINATION, WAIVER AND AMENDMENT 7.1. Termination. This Agreement may be terminated at any time prior to the Effective Time, either before or after approval by the shareholders of ONBC: (a) by the mutual written consent duly authorized by the respective Boards of Directors of the parties hereto; (b) by CBSI in writing, if ONBC has, or by ONBC in writing, if CBSI has, breached (i) any covenant or agreement contained herein or (ii) any representation or warranty contained herein, and in either case if (x) to the extent that such breach is curable, such breach has not been cured within 30 days after the date on which written notice thereof is given to the breaching party and (y) such breach would entitle the non-breaching party not to consummate the transactions contemplated hereby under Article VI hereof; (c) by any party hereto in writing, if the applications for prior approval referred to in Section 5.3 hereof have been finally denied, and the time period for appeals and requests for reconsideration has expired, or if any governmental entity of competent jurisdiction shall have issued a final nonappealable order enjoining or otherwise prohibiting the Merger, the Short-Form Merger or the Bank Merger; (d) by any party hereto in writing, if the shareholders of ONBC do not approve this Agreement and the transactions contemplated hereby at the annual or special meeting duly called for that purpose; (e) by any party hereto in writing, if the Merger shall not have been consummated by the close of business on March 1, 2007, unless the failure to so consummate by such date shall be principally due to the failure of the party seeking to terminate this Agreement to perform or observe the covenants and agreements set forth herein; (f) by CBSI, if (i) the Board of Directors of ONBC shall withdraw, modify or change its approval or recommendation of this Agreement or the transactions contemplated thereby in a manner adverse to CBSI, or ONBC shall have failed to include in the Proxy Statement the recommendation of its Board of Directors in favor of the approval of this Agreement or the transactions contemplated thereby; (ii) following its receipt of a Takeover Proposal or the public announcement of a Takeover Proposal, ONBC shall fail to timely comply with the covenants contained in Section 5.1; (iii) the Board of Directors of ONBC shall have 38 recommended to the shareholders of ONBC a Superior Proposal, or ONBC shall have executed a letter of intent, a definitive agreement or similar document with respect to a Superior Proposal; (iv) a tender offer or exchange offer for 25% or more of the outstanding shares of ONBC Common Stock is commenced and ONBC shall not have sent to its shareholders, within 10 business days after the commencement of such tender or exchange offer, a statement that the Board of Directors of ONBC recommends rejection of such tender or exchange offer; (v) a Takeover Proposal (other than a tender or exchange offer covered by clause (iv) of this Section 7.1(f)) with respect to ONBC is publicly announced and, upon CBSI's request, ONBC fails to issue a press release announcing its opposition to such Takeover Proposal within three (3) business days after such request; or (vi) the Board of Directors of ONBC shall have resolved to take any action described in clauses (i) and (iii) of this Section 7.1(f); or (g) by ONBC, if the Board of Directors of ONBC shall have recommended to the shareholders of ONBC a Superior Proposal, or ONBC shall have executed a letter of intent, a definitive agreement or similar document with respect to a Superior Proposal, in each case in accordance with Section 5.12, provided that ONBC has complied with all provisions thereof. 7.2. Effect of Termination. In the event this Agreement is terminated pursuant to Section 7.1 hereof, this Agreement shall become void and have no effect, except that (i) the provisions relating to confidentiality and break-up fees and expenses set forth in Sections 5.5 and 7.3 hereof, respectively, shall survive any such termination and (ii) a termination pursuant to Section 7.1 shall not relieve the breaching party from liability for any willful breach of such covenant or agreement or representation or warranty giving rise to such termination. 7.3. Fees and Expenses. (a) Except as set forth in this Section 7.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such expenses, whether or not such transactions are consummated. (b) In the event that this Agreement is terminated (i) by CBSI pursuant to Section 7.1(b) (but only on account of a willful or knowing and material breach of a representation, warranty or covenant of ONBC) or Section 7.1(f), (ii) by ONBC pursuant to Section 7.1(g), or (iii) by either party pursuant to Section 7.1(d) after a Takeover Proposal from a third party is received by ONBC or made public or otherwise communicated to its shareholders (unless CBSI is then in breach of its representations, warranties or covenants contained in this Agreement such that conditions set forth in Section 6.2(a) or (b) would not be satisfied, and ONBC shall have duly given written notice to that effect prior to such termination), then in each case (without duplication) ONBC shall pay in immediately available funds to an account designated by CBSI, no later than three (3) business days after the date of such termination, all out-of-pocket costs and expenses (including limitation, professional fees of legal counsel, financial advisors and accountants, and their expenses) actually incurred by CBSI and its Subsidiaries in connection with the transactions contemplated by this Agreement, such costs and expenses not to exceed SEVENTY FIVE THOUSAND DOLLARS ($75,000) in the aggregate. In the event this Agreement is terminated under the circumstances described in the preceding sentence, and either (x) ONBC or any of its Subsidiaries shall have consummated a transaction with a third party with respect to a Takeover Proposal within one year of the termination of this 39 Agreement, or (y) within such one-year period, any third party Person consummates a tender or exchange offer for 25% or more of the outstanding ONBC Common Stock, then, in addition to the amounts required under the preceding sentence, ONBC shall pay in immediately available funds to an account designated by CBSI, no later than three (3) business days after the date of the applicable triggering event, a fee equal to SEVEN HUNDRED FIFTY THOUSAND DOLLARS ($750,000), as liquidated damages and not as a penalty. 7.4. Survival of Representations, Warranties and Covenants. All representations, warranties and covenants in this Agreement or in any instrument delivered pursuant hereto shall expire on, and be terminated and extinguished at, the Effective Time other than covenants that by their terms are to survive or be performed after the Effective Time; provided, that no such representations, warranties or covenants shall be deemed to be terminated or extinguished so as to deprive CBSI, Merger Sub or ONBC (or any director, officer or controlling person thereof) of any defense in law or equity which otherwise would be available against the claims of any Person, including, without limitation, any shareholder or former shareholder of either CBSI, Merger Sub or ONBC, the aforesaid representations, warranties and covenants being material inducements to the consummation by CBSI, Merger Sub and ONBC of the transactions contemplated herein. 7.5. Waiver. Except where not permitted by law, CBSI, Merger Sub or ONBC, by written instrument signed by an executive officer of such party, may at any time (whether before or after approval of this Agreement by the shareholders of ONBC) extend the time for the performance of any of the obligations or other acts of the other party, and may waive (i) any inaccuracies of such other party in the representations or warranties contained in this Agreement or any document delivered pursuant hereto, (ii) compliance with any of the covenants, undertakings or agreements of such other party, or satisfaction of any of the conditions precedent to its obligations, contained herein or (iii) the performance by such other party of any of its obligations set out herein or therein. No failure or delay on the part of any party hereto in the exercise of any right hereunder shall impair such right or be construed as a waiver of, or acquiescence in, any breach of any representation, warranty or agreement herein, nor shall any single or partial exercise of any such right preclude other or further exercise thereof or of any other right. 7.6. Amendment or Supplement. This Agreement may be amended or supplemented at any time prior to the Effective Time only by mutual agreement of the parties hereto evidenced by a written instrument signed by such parties; provided, however, that, after approval of this Agreement by the shareholders of ONBC, no amendment may be made which by law requires further approval by such shareholders without obtaining such further approval. ARTICLE VIII MISCELLANEOUS 8.1. Entire Agreement. This Agreement and the Transaction Documents contain the entire agreement between the parties with respect to the transactions contemplated hereunder and supersede all prior arrangements or understandings with respect thereto, written or oral, other than documents referred to herein. The terms and conditions of this Agreement shall 40 inure to the benefit of and be binding upon the parties hereto and thereto and their respective successors. Except as specifically set forth herein, nothing in this Agreement, expressed or implied, is intended to confer upon any party, other than the parties hereto and thereto, and their respective successors, any rights, remedies, obligations or liabilities. 8.2. No Assignment. No party hereto may assign any of its rights or obligations under this Agreement to any other Person. 8.3. Alternative Structure. Notwithstanding any provision of this Agreement to the contrary, CBSI may, with the written consent of ONBC, which consent shall not be unreasonably withheld or delayed, elect, subject to the filing of all necessary applications and the receipt of all required regulatory approvals, to modify the structure of the acquisition of ONBC set forth herein, provided, that (i) the consideration to be paid to the holders of the ONBC Common Stock is not thereby changed in kind or reduced in amount as a result of such modification and (ii) such modification will not materially delay or jeopardize the consummation of the transactions contemplated by the Agreement. 8.4. Notices. All notices or other communications which are required or permitted hereunder shall be in writing and sufficient if delivered personally or sent by facsimile transmission or overnight express or by registered or certified mail, postage prepaid, addressed as follows: If to ONBC: ONB Corporation 26 East Main Street Clifton Springs, NY 14432 Telecopy: (315) 462-2058 Attention: President and Chief Executive Officer With a required copy (which shall not constitute notice hereunder) to: Harter Secrest & Emery LLP 1600 Bausch & Lomb Place Rochester, NY 14604-2711 Telecopy: (585) 232-2152 Attention: Gary L. Karl, Esq. If to CBSI: Community Bank System, Inc. 5790 Widewaters Parkway DeWitt, New York 13214 Telecopy: (315) 445-2997 Attention: President and Chief Executive Officer 41 With a required copy (which shall not constitute notice hereunder) to: Bond, Schoeneck & King, PLLC One Lincoln Center Syracuse, New York 13210 Telecopy: (315) 218-8100 Attention: George J. Getman, Esq. 8.5. Captions. The captions contained in this Agreement are for reference purposes only and are not part of this Agreement. 8.6. Counterparts. This Agreement may be executed in any number of counterparts, and each such counterpart shall be deemed to be an original instrument, but all such counterparts together shall constitute but one agreement. 8.7. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and entirely to be performed within such jurisdiction, except to the extent federal law may be applicable. [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.] 42 IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have caused this Agreement to be executed by their duly authorized officers, all as of the day and year first above written. COMMUNITY BANK SYSTEM, INC. By: /s/ Mark E. Tryniski ----------------------------------------- Name: Mark E. Tryniski Title: President and Chief Executive Officer SENECA ACQUISITION CORP. By: /s/ Mark E. Tryniski ----------------------------------------- Name: Mark E. Tryniski Title: President ONB CORPORATION By: /s/ Jerry W. Zehr ----------------------------------------- Name: Jerry W. Zehr Title: President and Chief Executive Officer 43 EX-31.1 3 d69791_ex31-1.txt SECTION 302 CERTIFICATION OF CEO Exhibit 31.1 CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002 I, Mark E. Tryniski, certify that: 1. I have reviewed this quarterly report on Form 10-Q of Community Bank System, Inc.; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and we have: a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; c) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and d) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and 5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions): a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. Date: November 8, 2006 /s/ Mark E. Tryniski - -------------------- Mark E. Tryniski, President, Chief Executive Officer and Director EX-31.2 4 d69791_ex31-2.txt SECTION 302 CERTIFICATION OF CFO Exhibit 31.2 CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002 I, Scott Kingsley, certify that: 1. I have reviewed this quarterly report on Form 10-Q of Community Bank System, Inc.; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and we have: a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; c) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and d) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and 5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions): a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. Dated: November 8, 2006 /s/ Scott Kingsley - ------------------ Scott Kingsley, Treasurer and Chief Financial Officer EX-32.1 5 d69791_ex32-1.txt SECTION 906 CERTIFICATION OF CEO Exhibit 32.1 CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 In connection with the Quarterly Report of Community Bank System, Inc. (the "Company") on Form 10-Q for the quarter ended September 30, 2006 as filed with the Securities and Exchange Commission on the date hereof (the "Report"), I, Mark E. Tryniski, President and Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to the best of my knowledge: (1) the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and (2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. This certification accompanies this Form 10-Q and shall not be deemed "filed" for purposes of Section 18 of the Securities Exchange Act of 1934, or otherwise subject to the liability of that Section. /s/ Mark E. Tryniski - -------------------- Mark E. Tryniski President, Chief Executive Officer and Director November 8, 2006 EX-32.2 6 d69791_ex32-2.txt SECTION 906 CERTIFICATION OF CFO Exhibit 32.2 CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 In connection with the Quarterly Report of Community Bank System, Inc. (the "Company") on Form 10-Q for the quarter ended September 30, 2006 as filed with the Securities and Exchange Commission on the date hereof (the "Report"), I, Scott Kingsley, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to the best of my knowledge: (1) the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and (2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. This certification accompanies this Form 10-Q and shall not be deemed "filed" for purposes of Section 18 of the Securities Exchange Act of 1934, or otherwise subject to the liability of that Section. /s/ Scott Kingsley - ------------------ Scott Kingsley, Treasurer and Chief Financial Officer November 8, 2006 -----END PRIVACY-ENHANCED MESSAGE-----