Common use of RIGHTS OF DISSENTING STOCKHOLDERS Clause in Contracts

RIGHTS OF DISSENTING STOCKHOLDERS. Any Shareholder of Bank who has voted against the Consolidation at the meeting of stockholders of Bank, or has given notice in writing at or prior to such meeting to the presiding officer that he/she dissents from the Consolidation, shall be entitled to receive the value of the shares so held by him/her when the Consolidation shall be approved by the Comptroller upon written request made to the Holding Company at any time before thirty (30) days after the date of consummation of the Consolidation, accompanied by the surrender of his/her stock certificates. The value of the shares of any dissenting stockholder shall be ascertained, as to the Effective Time of the Consolidation, by an appraisal made by a committee of three persons, composed of: (1) one selected by the vote of the holders of the majority of the stock, the owners of which are entitled to payment in cash (by reason of such request for appraisal); (2) one selected by the directors of the Consolidated Bank or Holding Company; and (3) one selected by the two so selected. The valuation agreed upon by any two of the three appraisers shall govern. If the value so fixed shall not be satisfactory to any dissenting shareholder who has requested payment, the shareholder may, within five (5) days after being notified of the appraisal value of such shares, appeal to the Comptroller, who shall cause a reappraisal to be made which shall be final and binding as to the value of the shares of the appellant. If, within ninety (90) days from the date of consummation of the Consolidation, for any reason, one or more of the appraisers is not selected as herein provided, or the appraisers fail to determine the value of such shares, the Comptroller shall upon written request of any interested party cause an appraisal to be made which shall be final and binding on all parties. The expenses of the Comptroller in making the reappraisal or the appraisal, as the case may be, shall be paid by the Consolidated Bank or the Holding Company. The value of the shares ascertained shall be promptly paid to the dissenting shareholders by the Consolidated Bank and/or the Holding Company.

RIGHTS OF DISSENTING STOCKHOLDERS. Any Shareholder REPRESENTATIONS AND WARRANTIES The Merger Agreement contains various representations and warranties of Bank the parties thereto. The Merger Agreement includes representations and warranties by the Company as to (1) the corporate organization, standing and power of the Company and its subsidiaries, (2) approval by the Board, (3) capitalization, (4) brokers and financial advisors employed by the Company, (5) the satisfaction of certain conditions specified in the Harcourt Agreement, (6) the fact that the Merger Agreement and the transactions contemplated thereby do not constitute a violation, breach or default under any material corporate obligation or contract of the Company and that, except as expressly disclosed, no material filings, consents or approvals are necessary to approve the Merger Agreement or the transactions contemplated thereby, other than the approval of the Merger Agreement by the Company's stockholders, (7) certain actions taken by the Board with respect to Section 203 of the DGCL, (8) receipt by the Board of the opinion of BZW that the Merger Consideration is fair to such stockholders from a financial point of view and (9) the conclusion of the Board that the Merger is fair to, and in the best interest of, the Company and the holders of record of Shares (other than Shares held of record by Harcourt or the Company or any direct or indirect wholly-owned subsidiary of Harcourt or of the Company) and approving and adopting the Merger Agreement. The Merger Agreement also includes representations and warranties by Harcxxxx, XXC and Merger Sub as to (1) the corporate organization, standing and power of each of Harcourt, NEC and Merger Sub, (2) approval by the respective Boards of Directors of Harcourt, NEC and Merger Sub, (3) the prior activities of Merger Sub, and (4) the fact that the Merger Agreement and the transactions contemplated thereby do not 20 28 constitute a violation, breach or default under any material corporate obligation or contract of Harcourt, NEC or Merger Sub and that, except as expressly disclosed, no material filings, consents or approvals are necessary to authorize the Merger Agreement or the transactions contemplated thereby. BUSINESS OF THE COMPANY PENDING THE MERGER Pursuant to the Merger Agreement, the Company has agreed that, except as expressly contemplated by the Merger Agreement or as consented to by Harcourt, during the period from the date of the Merger Agreement to the Effective Time, the Company and its subsidiaries will conduct their operations only in the ordinary and usual course of business and consistent with past practice and will use their reasonable best efforts in the ordinary course of business and consistent with past practice to preserve intact the Company's business organization, assets, prospects and advantageous business relationships, to keep available the services of its officers and employees and to maintain satisfactory relationships with customers, suppliers, contractors, distributors, licensors, licensees and others having business relationships with it. ADDITIONAL COVENANTS The Merger Agreement also provides the following additional covenants: (1) the Company has agreed that during the time from the signing of the Merger Agreement to the Effective Time, subject to customary confidentiality agreements if requested, it will provide Harcourt, NEC, Merger Sub and their authorized representatives with reasonable access to corporate information of the Company and its Subsidiaries, (2) the Company, Harcourt, NEC and Merger Sub have agreed to use their reasonable best efforts to take or cause to be taken all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable to consummate and make effective the transactions contemplated by the Merger Agreement, including the filing of the Schedule 13E-3 with the Commission and the dissemination of certain information to the Company's stockholders, (3) Harcourt, NEC and Merger Sub have agreed to cause their affiliates who has voted are directors, officers, stockholders and/or employees of the Company to use their best efforts (to the extent reasonably within their power or ability) to honor the provisions of the Merger Agreement, (4) Harcourt, NEC, SVAC and the Company have agreed to consult with each other before making any public announcements relating to the Merger, (5) Harcxxxx xxx advised the Company that it is its desire to effect stockholder approval of the Merger by written consent in lieu of a stockholder meeting and (6) the Company, and after the Effective Time, the Surviving Corporation, have agreed to indemnify and hold harmless its officers and directors, including members of the Special Committee, against any claim or proceeding arising out of any actions taken prior to the Consolidation at Effective Time and to maintain for a period of five years after the meeting Effective Time directors' and officers' liability insurance covering those persons covered as of the date of the Merger Agreement on terms and in an amount comparable to such policies held by the Company as of the date of the Merger Agreement. CONDITIONS; WAIVERS Conditions to Each Party's Obligations to Effect the Merger. The respective obligations of each party to effect the Merger are subject to the satisfaction of the following conditions which may not be waived: (1) the Merger Agreement and the Merger will have been duly approved by the requisite vote (which may be effected by written consent in lieu of a meeting) of the holders of Shares in accordance with applicable law and the Certificate of Incorporation of the Company, (2) the Merger Agreement and the Merger will have been duly approved by the requisite vote (which may be effected by written consent in lieu of a meeting) of the stockholders of BankMerger Sub in accordance with applicable law and the certificate of incorporation of Merger Sub, (3) there shall not be outstanding any order, statute, rule, regulation, executive order, stay, decree, judgment, or has given notice injunction which restrains or prohibits the consummation of the Merger and (4) the terms and conditions of the Harcourt Agreement required to be satisfied in writing order to consummate the Merger shall have been satisfied by each of the parties thereto. Conditions to the Obligations of Harcourt, NEC and Merger Sub. The respective obligations of Harcourt, NEC and Merger Sub to effect the Merger are subject to the satisfaction or waiver of the following additional conditions: (1) each of the representations and warranties of the Company contained in the Merger Agreement that are qualified as to materiality will be true and correct, and the representations and warranties 21 29 that are not so qualified will have been true and correct in all material respects when made and at and as of the Effective Time, and (2) at or prior to such meeting the Effective Time, the Company will have performed or complied in all material respects with all agreements and conditions required of it pursuant to the presiding officer that he/she dissents from Merger Agreement. Conditions to the Consolidation, shall be entitled to receive the value Obligations of the shares so held by him/her when Company. The obligations of the Consolidation shall be approved by Company to effect the Comptroller upon written request made Merger are subject to the Holding Company at any time before thirty (30) days after the date of consummation satisfaction or waiver of the Consolidation, accompanied by the surrender of his/her stock certificates. The value of the shares of any dissenting stockholder shall be ascertained, as to the Effective Time of the Consolidation, by an appraisal made by a committee of three persons, composed offollowing additional conditions: (1) one selected by the vote each of the holders representations and warranties of Harcourt, NEC and Merger Sub contained in the Merger Agreement that are qualified as to materiality will be true and correct, and the representations and warranties that are not so qualified will have been true and correct in all material respects when made and at and as of the majority of the stockEffective Time, the owners of which are entitled to payment in cash (by reason of such request for appraisal); (2) one selected at or prior to the Effective Time, each of Harcourt, NEC and Merger Sub will have performed or complied in all material respects with all agreements and conditions required to be performed and complied with by them pursuant to the directors of the Consolidated Bank or Holding Company; and Merger Agreement, (3) one selected by the two so selected. The valuation agreed upon by any two Special Committee will not have modified or rescinded its recommendation with respect to the Merger as a result of the three appraisers shall govern. If withdrawal or material qualification, on or prior to the value so fixed shall not be satisfactory to any dissenting shareholder who has requested paymentEffective Time, the shareholder may, within five (5) days after being notified of the appraisal value of such shares, appeal fairness opinion delivered by BZW to the Comptroller, who shall cause a reappraisal to be made which shall be final and binding as to the value of the shares of the appellant. If, within ninety (90) days from Special Committee on the date of consummation the Merger Agreement, and (4) no event will have occurred nor circumstance exist which creates a reasonable doubt on the ability of Harcxxxx xx pay monies to the Exchange Agent as required under the terms of the ConsolidationMerger Agreement. TERMINATION; AMENDMENT The Merger Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time, for any reason, one before or more after the approval by the stockholders of the appraisers is not selected as herein providedCompany, or by the appraisers fail to determine the value of such shares, the Comptroller shall upon written request of any interested party cause an appraisal to be made which shall be final and binding on all parties. The expenses mutual consent of the Comptroller in making the reappraisal or the appraisal, as the case may be, shall be paid by the Consolidated Bank or the Holding Company. The value of the shares ascertained shall be promptly paid to the dissenting shareholders by the Consolidated Bank and/or the Holding Company.Boards of

RIGHTS OF DISSENTING STOCKHOLDERS. Any Shareholder REPRESENTATIONS AND WARRANTIES The Merger Agreement contains various representations and warranties of Bank the parties thereto. The Merger Agreement includes representations and warranties by the Company as to (1) the corporate organization, standing and power of the Company and its subsidiaries, (2) approval by the Board, (3) capitalization, (4) brokers and financial advisors employed by the Company, (5) the satisfaction of certain conditions specified in the Harcourt Agreement, (6) the fact that the Merger Agreement and the transactions contemplated thereby do not constitute a violation, breach or default under any material corporate obligation or contract of the Company and that, except as expressly disclosed, no material filings, consents or approvals are necessary to approve the Merger Agreement or the transactions contemplated thereby, other than the approval of the Merger Agreement by the Company's stockholders, (7) certain actions taken by the Board with respect to Section 203 of the DGCL, (8) receipt by the Board of the opinion of BZW that the Merger Consideration is fair to such stockholders from a financial point of view and (9) the conclusion of the Board that the Merger is fair to, and in the best interest of, the Company and the holders of record of Shares (other than Shares held of record by Harcourt or the Company or any direct or indirect wholly-owned subsidiary of Harcourt or of the Company) and approving and adopting the Merger Agreement. The Merger Agreement also includes representations and warranties by Harcxxxx, XXC and Merger Sub as to (1) the corporate organization, standing and power of each of Harcourt, NEC and Merger Sub, (2) approval by the respective Boards of Directors of Harcourt, NEC and Merger Sub, (3) the prior activities of Merger Sub, and (4) the fact that the Merger Agreement and the transactions contemplated thereby do not 19 27 constitute a violation, breach or default under any material corporate obligation or contract of Harcourt, NEC or Merger Sub and that, except as expressly disclosed, no material filings, consents or approvals are necessary to authorize the Merger Agreement or the transactions contemplated thereby. BUSINESS OF THE COMPANY PENDING THE MERGER Pursuant to the Merger Agreement, the Company has agreed that, except as expressly contemplated by the Merger Agreement or as consented to by Harcourt, during the period from the date of the Merger Agreement to the Effective Time, the Company and its subsidiaries will conduct their operations only in the ordinary and usual course of business and consistent with past practice and will use their reasonable best efforts in the ordinary course of business and consistent with past practice to preserve intact the Company's business organization, assets, prospects and advantageous business relationships, to keep available the services of its officers and employees and to maintain satisfactory relationships with customers, suppliers, contractors, distributors, licensors, licensees and others having business relationships with it. ADDITIONAL COVENANTS The Merger Agreement also provides the following additional covenants: (1) the Company has agreed that during the time from the signing of the Merger Agreement to the Effective Time, subject to customary confidentiality agreements if requested, it will provide Harcourt, NEC, Merger Sub and their authorized representatives with reasonable access to corporate information of the Company and its Subsidiaries, (2) the Company, Harcourt, NEC and Merger Sub have agreed to use their reasonable best efforts to take or cause to be taken all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable to consummate and make effective the transactions contemplated by the Merger Agreement, including the filing of the Schedule 13E-3 with the Commission and the dissemination of certain information to the Company's stockholders, (3) Harcourt, NEC and Merger Sub have agreed to cause their affiliates who has voted are directors, officers, stockholders and/or employees of the Company to use their best efforts (to the extent reasonably within their power or ability) to honor the provisions of the Merger Agreement, (4) Harcourt, NEC, SVAC and the Company have agreed to consult with each other before making any public announcements relating to the Merger, (5) Harcxxxx xxx advised the Company that it is its desire to effect stockholder approval of the Merger by written consent in lieu of a stockholder meeting and (6) the Company, and after the Effective Time, the Surviving Corporation, have agreed to indemnify and hold harmless its officers and directors, including members of the Special Committee, against any claim or proceeding arising out of any actions taken prior to the Consolidation at Effective Time and to maintain for a period of five years after the meeting Effective Time directors' and officers' liability insurance covering those persons covered as of the date of the Merger Agreement on terms and in an amount comparable to such policies held by the Company as of the date of the Merger Agreement. CONDITIONS; WAIVERS Conditions to Each Party's Obligations to Effect the Merger. The respective obligations of each party to effect the Merger are subject to the satisfaction of the following conditions which may not be waived: (1) the Merger Agreement and the Merger will have been duly approved by the requisite vote (which may be effected by written consent in lieu of a meeting) of the holders of Shares in accordance with applicable law and the Certificate of Incorporation of the Company, (2) the Merger Agreement and the Merger will have been duly approved by the requisite vote (which may be effected by written consent in lieu of a meeting) of the stockholders of BankMerger Sub in accordance with applicable law and the certificate of incorporation of Merger Sub, (3) there shall not be outstanding any order, statute, rule, regulation, executive order, stay, decree, judgment, or has given notice injunction which restrains or prohibits the consummation of the Merger and (4) the terms and conditions of the Harcourt Agreement required to be satisfied in writing order to consummate the Merger shall have been satisfied by each of the parties thereto. Conditions to the Obligations of Harcourt, NEC and Merger Sub. The respective obligations of Harcourt, NEC and Merger Sub to effect the Merger are subject to the satisfaction or waiver of the following additional conditions: (1) each of the representations and warranties of the Company contained in the Merger Agreement that are qualified as to materiality will be true and correct, and the representations and warranties 20 28 that are not so qualified will have been true and correct in all material respects when made and at and as of the Effective Time, and (2) at or prior to such meeting the Effective Time, the Company will have performed or complied in all material respects with all agreements and conditions required of it pursuant to the presiding officer that he/she dissents from Merger Agreement. Conditions to the Consolidation, shall be entitled to receive the value Obligations of the shares so held by him/her when Company. The obligations of the Consolidation shall be approved by Company to effect the Comptroller upon written request made Merger are subject to the Holding Company at any time before thirty (30) days after the date of consummation satisfaction or waiver of the Consolidation, accompanied by the surrender of his/her stock certificates. The value of the shares of any dissenting stockholder shall be ascertained, as to the Effective Time of the Consolidation, by an appraisal made by a committee of three persons, composed offollowing additional conditions: (1) one selected by the vote each of the holders representations and warranties of Harcourt, NEC and Merger Sub contained in the Merger Agreement that are qualified as to materiality will be true and correct, and the representations and warranties that are not so qualified will have been true and correct in all material respects when made and at and as of the majority of the stockEffective Time, the owners of which are entitled to payment in cash (by reason of such request for appraisal); (2) one selected at or prior to the Effective Time, each of Harcourt, NEC and Merger Sub will have performed or complied in all material respects with all agreements and conditions required to be performed and complied with by them pursuant to the directors of the Consolidated Bank or Holding Company; Merger Agreement and (3) one selected no event will have occurred nor circumstance exist which creates a reasonable doubt on the ability of Harcxxxx xx pay monies to the Exchange Agent as required under the terms of the Merger Agreement. TERMINATION; AMENDMENT The Merger Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time, before or after the approval by the two so selected. The valuation agreed upon by any two stockholders of the three appraisers shall govern. If Company, by the value so fixed shall not be satisfactory to any dissenting shareholder who has requested payment, the shareholder may, within five (5) days after being notified mutual consent of the appraisal value of such shares, appeal to the Comptroller, who shall cause a reappraisal to be made which shall be final and binding as to the value of the shares of the appellant. If, within ninety (90) days from the date of consummation of the Consolidation, for any reason, one or more of the appraisers is not selected as herein provided, or the appraisers fail to determine the value of such shares, the Comptroller shall upon written request of any interested party cause an appraisal to be made which shall be final and binding on all parties. The expenses of the Comptroller in making the reappraisal or the appraisal, as the case may be, shall be paid by the Consolidated Bank or the Holding Company. The value of the shares ascertained shall be promptly paid to the dissenting shareholders by the Consolidated Bank and/or the Holding Company.Boards of