1
EXHIBIT 99
PURCHASE AND ASSUMPTION AGREEMENT
Agreement, dated as of May 1, 2001, by and between (a) XXXXXX UNITED
BANK, a commercial bank organized under the laws of the State of New Jersey,
with its principal offices at 0000 XxxXxxxxx Xxxxxxxxx, Xxxxxx, Xxx Xxxxxx 00000
("Purchaser") and (b) FIRST INTERNATIONAL BANK, a bank organized under the laws
of the State of Connecticut, with its principal offices at 000 Xxxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxxx 00000 ("Seller").
WITNESSETH:
WHEREAS, Seller and Purchaser wish to enter into an agreement whereby
Purchaser will assume certain deposit liabilities of Seller and acquire certain
related assets of Seller as hereafter set forth;
NOW, THEREFORE, in consideration of the mutual promises herein
contained and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
"Accrued Interest" means, as of any date, the interest, dividends,
fees, costs and other charges that have been accrued on but not paid, credited
or charged to the Deposit Liabilities.
"Adjustment to Discount" means an amount determined as follows:
If the amount of Deposit Liabilities is less than the Base Deposit
Amount, then the Adjustment to Discount shall be an amount equal to the
product of (i) the Base Discount Amount, multiplied by (ii) a fraction,
the numerator of which is the result of (x) the Base Deposit Amount
minus (y) the amount of the Deposit Liabilities, and the denominator of
which is the Base Deposit Amount (i.e. the amount determined pursuant
to this sentence shall be subtracted from the Base Discount Amount for
the purpose of determining the Discount), provided that the amount of
the Adjustment to Discount pursuant to this sentence (and therefore the
amount subtracted from the Base Discount Amount pursuant to this
sentence) shall not exceed $45,000.
"Affiliate" means, with respect to any Person, any other Person
controlling, controlled by or under common control with, such Person. As used in
this definition, "control" (including, with its correlative meanings,
"controlled by" and "under common control with") means the possession, directly
or indirectly, of power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.
"Agreement" means this Purchase and Assumption Agreement, including all
schedules and exhibits hereto.
"Assigned Assets" has the meaning assigned to such term in Section 3.1
hereof.
2
-2-
"Assignment and Xxxx of Sale" means the agreement by which Seller
effects the transfer of the Assigned Assets in accordance with Section 3.1
hereof, which agreement shall be in the form of Exhibit A attached hereto.
"Assumed Liabilities" has the meaning assigned to such term in Section
2.1 hereof.
"Assumption Agreement" means the agreement by which Purchaser assumes
the liabilities of Seller specified in Section 2.1 hereof, which agreement shall
be in the form of Exhibit B attached hereto.
"Base Deposit Amount" means $253,716,766 (as set forth on Schedule
1.1(a) hereto).
"Base Discount Amount" means the sum of (a) $450,000, plus (b) (i) if
the Closing occurs on or before July 31, 2001, zero, and (ii) if the Closing
occurs after July 31, 2001, $25,000, provided that the amount pursuant to this
clause (ii) shall be reduced proportionately to the extent that the Deposit
Liabilities are less than the Base Deposit Amount, based upon a reduction to
zero if the Deposit Liabilities are equal to or less than ninety percent (90%)
of the Base Deposit Amount (e.g. if the Deposit Liabilities are ninety-five
percent (95%) of the Base Deposit Amount and the Closing occurs after July 31,
2001, the amount added to the Base Discount Amount pursuant to this clause (ii)
will be $12,500).
"Brokered Deposits" means those Deposit Liabilities which were obtained
by Seller from brokers pursuant to agreements which provided for such brokers to
purchase (or act as agent for their customers in purchasing) certificates of
deposit for their customers from Seller from time to time.
"Business Day" means any day other than a Saturday or Sunday or a day
on which banks are authorized or required to close in the State of Connecticut.
"CBD" means the Department of Banking of the State of Connecticut.
"Closing" means the consummation of the assumption of liabilities by
Purchaser pursuant to Section 4.3 hereof.
"Closing Conditions" means the conditions set forth in Article X hereof
which must be fulfilled prior to Closing.
"Closing Date" means the date on which the Closing occurs.
"Confidentiality Agreement" means that certain confidentiality
agreement, dated as of April 18, 2001, by and among Parent, Purchaser and
Seller.
"Customers" means, individually and collectively, the Persons named as
the owners of the deposit accounts relating to the Deposit Liabilities.
"Damages" has the meaning assigned to such term in Section 12.1 hereof.
3
-3-
"Deposit Liabilities" means all of Seller's obligations and liabilities
relating to deposit accounts that exist on the Closing Date including without
limitation the obligations and liabilities relating to (a) the deposit accounts
listed on Schedule 1.1(a) hereto, and (b) any and all deposit accounts which are
opened by Seller between the date hereof and the close of business on the day
immediately preceding the Closing Date, together with Accrued Interest thereon,
all as exists on the Closing Date.
"Discount" means an amount equal to the sum of (a) the Base Discount
Amount, minus (or plus, if and to the extent expressly provided herein) (b) the
amount of the Adjustment to Discount. The amount of the Deposit Liabilities used
for purposes of calculating the Discount shall be the amount of the Deposit
Liabilities transferred to Purchaser on the Closing Date.
"FDIA" means the Federal Deposit Insurance Act, as amended.
"FDIC" means the Federal Deposit Insurance Corporation.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System.
"Final Closing Schedule" has the meaning assigned to such term in
Section 13.1 hereof.
"IRS" means the United States Internal Revenue Service.
"Indemnified Party" has the meaning set forth in Section 12.3 hereof.
"Indemnitor" has the meaning set forth in Section 12.3 hereof.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended.
"Merger" means the merger of Parent and Stag Merger Company, Inc.,
pursuant to the terms of the Merger Agreement.
"Merger Agreement" means that certain Agreement and Plan of Merger,
dated as of January 15, 2001, by and among Parent, UPS and Stag Merger Company,
Inc.
"Parent" means First International Bancorp, Inc., the parent bank
holding company of Seller.
"Person" means any individual, partnership, joint venture, corporation,
trust, limited liability company, unincorporated organization, government or
other entity.
"Public Announcement" means a press release or public announcement by
Parent and Purchaser relating to the assumption by Purchaser of the Assumed
Liabilities.
"Purchaser" has the meaning set forth in the introductory paragraph
hereof.
"Regulatory Approvals" means all approvals and consents of federal and
state banking or other regulatory authorities necessary to consummate the
transactions contemplated by this Agreement.
4
-4-
"Retail Deposits" means certificate of deposits other than Brokered
Deposits.
"Schedule of Deposit Liabilities" means the schedule setting forth a
financial summary of deposit accounts giving rise to the Deposit Liabilities as
of the date set forth thereon, which is attached hereto as Schedule 1.1(a) and
made a part hereof.
"Seller" has the meaning set forth in the introductory paragraph
hereof.
"Seller's Closing Payment" means the sum of (a) the Deposit Liabilities
plus, (b) the Discount.
"Tax" means any federal, state, local or foreign income, profits,
gains, gross receipts, franchise, estimated, alternative minimum, add-on
minimum, sales, use, transfer, registration, value added, excise, natural
resources, telecommunications, severance, stamp, occupation, premium, windfall
profit, environmental (including Section 59A of the Internal Revenue Code),
customs, duties, real property, personal property, capital stock, intangibles,
social security, employment, unemployment, disability, payroll, license,
employee or other tax, withholding tax, or other governmental assessment,
charge, duty, or levy, of any kind whatsoever, including any interest, penalties
or additions to tax in respect of the foregoing.
"Third Party Consents" has the meaning assigned to such term in Section
7.3(a) hereof.
"UPS" means United Parcel Service, Inc., a Delaware corporation.
ARTICLE II
ASSUMPTION OF LIABILITIES
2.1. Assumed Liabilities. Subject to the terms and conditions hereof,
including without limitation the transfer of the Assigned Assets to Purchaser,
on the Closing Date, Purchaser shall assume, and Purchaser shall thereafter
honor and fully and timely, pay, perform and discharge when due, the Deposit
Liabilities and shall perform all duties, responsibilities and obligations of
Seller under the Deposit Liabilities, including without limitation, with respect
to (a) the abandoned property laws of any state, (b) any legal process which is
served on Seller on or before the Closing Date with respect to claims against or
related to the Deposit Liabilities, except for claims threatened or pending
prior to the Closing Date that arise out of or result from Seller's failure to
honor and fully and timely pay, perform and discharge when due Seller's
obligations relating to the Deposit Liabilities, or (c) any other applicable
law, in each case, to the extent that such liabilities, duties, responsibilities
and obligations arise or accrue on or after the Closing Date (collectively, the
"Assumed Liabilities"). In confirmation of the foregoing, Purchaser shall
execute and deliver the Assumption Agreement to Seller at the Closing.
2.2. No Other Liabilities Being Assumed. Except for the Assumed
Liabilities, Purchaser shall not assume or be bound by any duties,
responsibilities, obligations or liabilities of any kind or nature, whether
known or unknown, whether asserted or unasserted, whether accrued or unaccrued,
whether contingent or otherwise.
5
-5-
2.3. Schedule of Deposit Liabilities. The Schedule of Deposit
Liabilities attached hereto and made a part hereof sets forth the Deposit
Liabilities being assumed by Purchaser pursuant to Section 2.1 hereof. The
Deposit Liabilities set forth in such Schedule of Deposit Liabilities are as of
April 26, 2001 and shall be used and adjusted as provided in Article XIII
hereof.
ARTICLE III
ASSIGNMENT OF ASSETS
3.1. Assignment of Assets. Subject to the provisions of this Agreement,
and as consideration for Purchaser's assumption of the Assumed Liabilities, on
the Closing Date, Seller shall assign, convey and transfer to Purchaser, and
Purchaser shall accept from Seller, all of Seller's right, title and interest
in, to and under certain assets of Seller as described below (collectively, the
"Assigned Assets"):
(a) all of Seller's rights pertaining to the contracts and
relationships giving rise to the Deposit Liabilities;
(b) all insurance premiums paid by Seller to the FDIC which are
allocated to insurance coverage for Deposit Liabilities on and after the Closing
Date, to the extent that a proration or adjustment is made with respect thereto
pursuant to Section 4.2; and
(c) all of Seller's right, title and interest in and to all books and
records relating to the Assigned Assets and the Deposit Liabilities, as such
books and records may exist and as are held by Seller.
In confirmation of the foregoing, Seller shall execute and deliver the
Assignment and Xxxx of Sale to Purchaser at the Closing.
3.2. No Other Assets Being Assigned. Purchaser understands and agrees
that it is purchasing only the Assigned Assets (and assuming only the Assumed
Liabilities) specified in this Agreement and except as may be expressly provided
for in this Agreement, Purchaser has no interest in any other business
relationship which Seller has or may have with any Customer or any other
customer of Seller or their Affiliates. Purchaser further understands and agrees
that Seller and its Affiliates are retaining any and all rights and claims which
any of them may have, including but not limited to indemnification or
reimbursement rights, with respect to the Assigned Assets and the Assumed
Liabilities, to the extent that such rights or claims relate to the Assigned
Assets or the Assumed Liabilities prior to the Closing.
ARTICLE IV
CLOSING; CLOSING PAYMENT
4.1. Payment at Closing.
(a) Subject to the provisions of this Agreement, Seller agrees to pay
to Purchaser on the Closing Date, by wire transfer of immediately available
funds to an account designated in
6
-6-
writing by Purchaser on or before the date which is two (2) Business Days prior
to Closing Date, an amount in cash equal to Seller's Closing Payment. If
Seller's payment to Purchaser pursuant to this Section 4.1 is for any reason not
made on the Closing Date, then Seller shall pay interest on the amount to be
paid at an annual rate equal to the Federal Reserve Bank of Boston's discount
rate for overnight advances in Boston from the close of business on the Closing
Date to the date on which payment is made.
(b) Although Purchaser shall not be required to agree to increase the
Adjustment to Discount to an amount more than $45,000 or to include or increase
the Adjustment to Discount if the weighted average maturity of the Brokered
Deposits is less than six (6) months from the Closing Date and the weighted
average interest rate of Brokered Deposits renewed from the date of this
Agreement to the Closing Date is less than it would have been had such Brokered
Deposits been renewed at the current market rate (as had been quoted by one of
the following brokers selected by Seller: Xxxxxx Xxxxxxx Xxxx Xxxxxx & Co.,
Xxxxxxx Xxxxx Xxxxxx Xxxxxx & Xxxxx Incorporated, CIBC Xxxxxxxxxxx, UBS
PaineWebber, Inc., Xxxxxxx Xxxxx Xxxxxx, Xxxx, Xxxx & Co., Inc., or such other
broker as Purchaser had agreed could be selected by Seller) for brokered
deposits having the same weighted average maturity as such renewed Brokered
Deposits, Purchaser will consider such an increase in good faith. Although
Seller shall not be required to agree to decrease the Adjustment to Discount
(and therefore to increase the Discount) if the weighted average maturity of the
Brokered Deposits is more than six (6) months from the Closing Date or the
weighted average interest rate of Brokered Deposits renewed from the date of
this Agreement to the Closing Date is more than it would have been had such
Brokered Deposits been renewed at the current market rate (as had been quoted by
one of the following brokers selected by Seller: Xxxxxx Xxxxxxx Xxxx Xxxxxx &
Co., Xxxxxxx Xxxxx Xxxxxx Xxxxxx & Xxxxx Incorporated, CIBC Xxxxxxxxxxx, UBS
PaineWebber, Inc., Xxxxxxx Xxxxx Xxxxxx, Xxxx, Xxxx & Co., Inc., or such other
broker as Purchaser had agreed could be selected by Seller) for brokered
deposits having the same weighted average maturity as such renewed Brokered
Deposits, Seller will consider such a decrease in good faith.
4.2. Proration. Except as otherwise specifically provided in this
Agreement, it is the intention of the parties that Purchaser shall assume the
Assumed Liabilities (and all rights associated therewith) for its own account
from and after the Closing Date. Thus, except as otherwise specifically provided
in this Agreement, items of income and expense shall be prorated as of the close
of business on the day immediately preceding the Closing Date, and shall be
settled between Seller and Purchaser as of the Closing Date, whether or not such
adjustment would normally be made as of such time. Items of proration will be
handled as an adjustment to Seller's Closing Payment. For purposes of this
Agreement, items of proration and other adjustments shall include, without
limitation: (i) insurance premiums paid or payable to the FDIC attributable to
insurance coverage for the Deposit Liabilities for the period from and after the
Closing Date; (ii) fees for customary annual or periodic licenses or permits;
and (iii) other prepaid items of income and expense, in each case relating the
Assigned Assets and as of the close of business on the day immediately preceding
the Closing Date. Notwithstanding the foregoing, if accurate arrangements cannot
be made as of the Closing Date for any of the foregoing items of proration, the
parties shall apportion the charges for the foregoing items on the basis of the
xxxx therefor for the most recent billing period prior to the Closing Date.
7
-7-
4.3. Time and Place of Closing. The Closing shall be held at the
offices of Xxxxxxx Xxxx LLP, One Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00x00 at
10:00 a.m., local time, on the date all Closing Conditions have been satisfied.
4.4. Informational Tax Reporting. Purchaser and Seller shall each
provide to the IRS, on a timely basis and otherwise as required by law, Forms
1099INT, 1099R, W-2P, 5498 and any other required forms and reports with respect
to each deposit concerning interest paid, or contributions to and distributions
from, the deposit accounts, as appropriate, for the periods during which
Purchaser and Seller, respectively, administered such accounts, including
without limitation any information required by the IRS pursuant to any request
for backup withholding and TIN certification records and documents. Seller shall
make such reports for interest paid or credited to Customers before the Closing
Date, and Purchaser shall make such reports from and after the Closing Date.
4.5. Public Announcements; Communications with Customers.
(a) From the date of this Agreement to the Closing Date, neither party
shall make or send a Public Announcement unless the other party shall have been
afforded the opportunity to review and comment on (and, with respect to any
specific references to the other party, to approve of) such Public Announcement
in accordance with paragraph (b) below; provided, however, that nothing in this
section shall prohibit each party from making any press release or announcement
which its legal counsel deems necessary under law, if it makes a good faith
effort to obtain the other party's comment on (or, with respect to specific
references to the other party, approval of) the text of the press release or
announcement before making it public.
(b) Each party shall submit to the other the text of any proposed
Public Announcement (other than announcements described in the foregoing
proviso) at least two (2) Business Days before the date on which the Public
Announcement is to be made. The other party shall have until the close of
business on the second Business Day following receipt of such text to advise the
submitting party of specific objections to the proposed Public Announcement.
With respect to specific references to the other party for which approval is
required pursuant to the terms hereof, such other party shall be deemed to have
agreed to the form and substance of such Public Announcement unless it raises
specific objections thereto within the two (2) Business Day period described in
the foregoing sentence.
(c) From the date of this Agreement to the Closing Date, except as
contemplated by Section 5.4 hereto, Purchaser shall not communicate directly
with Customers regarding this Agreement or the transactions contemplated hereby.
The prohibition on communications shall not prohibit (i) advertising,
promotional campaigns, market surveys, face-to-face solicitations made at
Purchaser's premises or other similar activities which are conducted in the
ordinary course of Purchaser's business and not targeted at Customers or (ii)
communications with Customers who as of the date of such communication are also
customers of Purchaser, provided that such communication relates solely to such
Customer's relationship with Purchaser and does not directly or indirectly
concern such Customer's relationship with Seller.
8
-8-
ARTICLE V
TRANSITIONAL MATTERS
5.1. Conversion. The conversion of the data processing with respect to
the Assumed Liabilities to be assumed hereunder will be completed on the date of
the Closing. Seller and Purchaser agree to cooperate to facilitate the orderly
transfer of all such data processing information.
5.2. Pre-Transfer Conversion Services. (a) Seller and Purchaser shall
diligently pursue discussions regarding conversion issues among their operations
and systems personnel and Seller shall provide data conforming to industry
standards regarding the Deposit Liabilities to Purchaser, including a list of
all account numbers, account parties and addresses of such parties, on computer
readable magnetic tape with associated tape file layouts presented on magnetic
media and in such other form or forms agreed to by Seller and Purchaser, to
enable Purchaser to convert such data onto Purchaser's data processing systems
by the close of business on the day immediately preceding the Closing Date.
Purchaser hereby acknowledges that each such tape provided prior to the Closing
shall be based upon the best information available to Seller at the time of the
preparation thereof and may not reflect all of the information necessary for the
conversion onto the system of Purchaser of the Deposit Liabilities to be
transferred to Purchaser pursuant hereto.
(b) Notwithstanding the foregoing, Seller shall not be required to
reformat, recode or otherwise alter its data files or repeat delivery of its
data files, unless arrangements satisfactory to Seller are made for Purchaser's
payment of the cost of such incremental actions, nor shall Seller be required to
provide information to any third party unless such Person shall have executed a
confidentiality agreement in form and substance acceptable to Seller.
(c) All data and other information provided to Purchaser or any other
Person pursuant to this section shall remain Seller's sole and exclusive
property until the Closing and shall be subject to the confidentiality
provisions of this Agreement.
(d) Purchaser agrees and acknowledges that, except as expressly stated
above, it shall be solely responsible for, and shall indemnify and hold harmless
Seller for, all costs and expenses relating to the conversion process; provided,
however, that Purchaser shall have no liability for the assumption of any of the
Seller's data processing fees, including without limitation, payment of any
deconversion fees.
5.3. Records and Information. On the Closing Date, Seller (i) shall
turn over or deliver to Purchaser all books and records relating to the Deposit
Liabilities and the Assigned Assets; provided, however, that Purchaser agrees to
provide Seller with reasonable access to such books and records following the
Closing Date; and (ii) shall execute and deliver the Assignment and Xxxx of Sale
and such other conveyances, bills of sale, and assignments in order to effect
the sale, conveyance and transfer of the Assigned Assets from Seller to
Purchaser.
5.4. Covenants of Purchaser; Notification to Brokers. Between the date
of receipt of the last of the Regulatory Approvals and the Closing Date,
Purchaser, at its expense, may notify the Customers of the pending transfer of
his, her or its deposit account. The form of such notices
9
-9-
shall be subject to the prior written approval of Seller in accordance with the
procedures set forth in Section 4.5 hereof. Seller agrees to reasonably
cooperate with Purchaser on all matters relating to such notification. Purchaser
agrees to be in a position to process the deposit accounts related to the
Deposit Liabilities on its system as of the close of business on the day
immediately preceding the Closing Date. It is also contemplated that, prior to
the Closing, Seller will notify the brokers through which Brokered Deposits were
obtained of the agreement of the Purchaser to assume the Deposit Liabilities
hereunder, in order to give such brokers the opportunity to give any required
notices to their customers or to the Depository Trust Company.
5.5. Payment of Deposit Liabilities.
(a) From and after the Closing, Purchaser shall (i) pay all properly
drawn and presented checks, negotiable orders of withdrawal, drafts, debits and
other withdrawal orders presented to Purchaser by Deposit Liability account
customers, whether drawn on checks, negotiable orders of withdrawal, drafts, or
other withdrawal order forms provided by Seller or by Purchaser and (ii) in all
other respects discharge, in the usual course of the banking business, all of
the duties and obligations of Seller with respect to the balances due and owing
to the Customers who have Deposit Liability accounts. Purchaser acknowledges
that any delay, failure, or inability on its part to comply with the obligations
imposed upon it as a depository institution under applicable federal or state
law, with regard to such checks, drafts, negotiable orders of withdrawal or
other withdrawal orders shall not result in any liability or obligation of
Seller and shall not affect any of the rights of Seller under this Agreement.
Seller shall not be deemed to have made any representations or warranties to
Purchaser with respect to any such checks, drafts, negotiable orders of
withdrawal or other withdrawal orders and any such representations or warranties
implied by law are hereby disclaimed and are the responsibility of Purchaser.
(b) Purchaser hereby acknowledges that if, from and after the Closing
Date, any Customer who has a Deposit Liability account, instead of accepting the
obligation of Purchaser to pay the Deposit Liabilities (including Accrued
Interest thereon) shall demand payment from Seller for all or any part of any
such Deposit Liabilities (including Accrued Interest thereon), Seller shall not
be liable or responsible for making such payment.
5.6. Bulk Transfer Laws. Seller and Purchaser hereby waive compliance
with any applicable bulk transfer laws. If by reason of any applicable bulk
sales law any claims are asserted by creditors of Seller, such claims shall be
the responsibility of Purchaser in the case of claims arising under any of the
Assigned Assets or Assumed Liabilities.
5.7. Further Assurances. From and after the Closing Date, Seller and
Purchaser will (a) provide such further assurances to each other, (b) execute
and deliver all such further instruments and papers, (c) provide such records
and information and (d) take such further action as may be appropriate to carry
out the transactions contemplated by and to accomplish the purposes of this
Agreement; provided, however, that from and after the Closing Date, Seller shall
not be required to take any action or execute any document or instrument if the
taking of such action or the execution of such document or instrument would
cause Seller to be an "insured depository institution" under the FDIA or a
"bank" under the Bank Holding Company Act of 1956, as amended.
10
-10-
5.8 Efforts to Effect Closing. Each of Seller and Purchaser shall use
their best efforts to cause the Closing to occur on or before July 31, 2001,
provided, that this paragraph is not intended to require either party, in order
to cause such Closing to occur by such date, to expend any amount of money,
waive any rights or enter into any adverse agreement that such party would not
be required to expend, waive or enter into if the Closing were to occur after
July 31, 2001.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants as follows:
6.1. Organization of Seller. Seller is a bank duly organized and
validly existing under the laws of the State of Connecticut, and has full
corporate power and all necessary federal, state and local authorizations to
execute and deliver this Agreement, the instruments and other documents required
to be executed by Seller pursuant hereto, and carry out the transactions
contemplated hereunder and thereunder.
6.2. Authority of Seller. All necessary corporate action, including
without limitation, all corporate action necessary under the Merger Agreement,
has been taken by Seller to authorize the execution, delivery and performance of
this Agreement, the instruments and other documents required to be executed by
Seller pursuant hereto and consummation of the transactions contemplated hereby,
and the same are, or when executed at the Closing will be, the valid and binding
obligations of Seller enforceable in accordance with their respective terms,
except that enforcement thereof may be limited by receivership, conservatorship
and supervisory powers of bank regulatory agencies generally as well as
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting enforcement of creditors' rights generally and except that enforcement
thereof may be subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law) and the
availability of equitable remedies.
6.3. Non-Contravention. The execution and delivery of this Agreement
and the instruments and other documents executed pursuant hereto by Seller do
not and, subject to the receipt of all Regulatory Approvals and Third Party
Consents, the consummation of the transactions contemplated by this Agreement
will not, constitute (a) a breach or violation of or default under any law,
rule, regulation, judgment, order, governmental permit or license of Seller or
to which Seller is subject, or (b) a breach or violation of or a default under
the charter or Bylaws of Seller or any material contract, including without
limitation, the Merger Agreement, or other instrument to which Seller is a party
or by which Seller is bound, in each case, which breach, violation or default
would have a material adverse effect on Seller's ability to consummate the
transactions contemplated by this Agreement.
6.4. Legal Proceedings. There are no actions, suits or proceedings,
whether civil, criminal or administrative, pending or, to Seller's knowledge,
threatened against or affecting Seller which would reasonably be expected to
have a material adverse effect on Seller's ability to consummate the
transactions contemplated by this Agreement.
11
-11-
6.5. Assumed Deposit Liabilities. The Deposit Liabilities are insured
by the FDIC through the Bank Insurance Fund to the extent permitted by law, and
all premiums and assessments required to be paid in connection therewith have
been paid when due by Seller.
6.6. Brokerage. Except for Xxxxx, Xxxxxxxx & Xxxxx, Seller has not
incurred or become liable for any broker's commission or finder's fee relating
to or in connection with the transactions contemplated by this Agreement, and
Seller agrees that it will indemnify and hold harmless Purchaser against any
liability for any fees or commissions of any such broker.
ARTICLE VII
COVENANTS OF SELLER
Seller covenants and agrees with Purchaser (and, with respect to the
second sentence of Section 7.4, Purchaser covenants and agrees with Seller) as
follows:
7.1. Conduct of Business. From the date hereof through the Closing
Date, Seller shall conduct its business relating to the Assumed Liabilities in
the usual, regular and ordinary course consistent with past practice. In
addition, Seller shall endeavor (a) not to renew any maturing Brokered Deposit
for a renewal term of more than six (6) months, (b) not to renew any maturing
Brokered Deposit at an interest rate that is in excess of the then current
market rate (quoted by one of the following brokers selected by Seller: Xxxxxx
Xxxxxxx Xxxx Xxxxxx & Co., Xxxxxxx Xxxxx Xxxxxx Xxxxxx & Xxxxx Incorporated,
CIBC Oppenheimer, UBS PaineWebber, Inc., Xxxxxxx Xxxxx Xxxxxx, Xxxx, Xxxx & Co.,
Inc., or such other broker as Purchaser agrees can be selected by Seller), for
brokered deposits having the same maturity as the new maturity of such renewed
Brokered Deposits, and (c) not to renew any Retail Deposit at an interest rate
higher than the applicable special promotional rate, if any, offered by
Purchaser for certificates of deposit of the applicable maturity at the time of
such renewal as offered at Purchaser's Hartford, Connecticut branch or as posted
on Purchaser's website (whichever is higher), and Seller shall use its
reasonable efforts not to renew any Retail Deposit at an interest rate higher
than Purchaser's standard rates for certificates of deposit of the applicable
maturity at the time of such renewal as offered at Purchaser's Hartford,
Connecticut branch or as posted on Purchaser's website (whichever is higher).
7.2. Regulatory Approvals. Seller shall use reasonable efforts to
assist Purchaser in obtaining the Regulatory Approvals. Seller shall provide
Purchaser or the appropriate regulatory authorities all information reasonably
required to be submitted by Seller in connection with the Regulatory Approvals.
7.3. Corporate and Other Consents. Seller shall use reasonable efforts
to secure all corporate and other non-regulatory consents (except those
involving Purchaser) necessary to consummate the transactions contemplated by
this Agreement, including without limitation, any required consents of Customers
to the assumption of such Customers' Deposit Liabilities by Purchaser on the
Closing Date ("Third Party Consents"), and shall provide copies of the same to
Purchaser upon Purchaser's request.
7.4. Pledges of Certificates of Deposit to Seller After Closing Date.
In connection with each financing transaction as to which Seller will be
receiving a certificate of deposit as
12
-12-
collateral during the period of one (1) year commencing on the Closing Date,
Seller will suggest to the pledgor of such certificate of deposit that, if a new
certificate of deposit is to be obtained in order to make such pledge, such
certificate of deposit should be obtained from Purchaser (it being understood
that each borrower of Seller will have the right to obtain its certificates of
deposit at such bank as may be selected by such borrower, notwithstanding such
suggestion by Seller). In consideration of the covenant of Seller in the
preceding sentence, Purchaser agrees that, unless and until all indebtedness and
obligations owed to Seller which are secured by a certificate of deposit issued
by Purchaser or an affiliate of Purchaser have been paid in full, neither
Purchaser nor any of its affiliates will exercise any right to setoff against,
or will assert any priority claim or right to, any certificate of deposit issued
by Purchaser or any affiliate of Purchaser which is at such time pledged to
Seller as collateral for indebtedness or obligations owed to Seller.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants as follows:
8.1. Organization of Purchaser. Purchaser is a bank duly incorporated
and validly existing under the laws of New Jersey with full corporate power to
own or lease its properties, to conduct its business in substantially the same
manner as such business was being conducted prior to this Agreement and to
execute and deliver this Agreement, the instruments and other documents required
to be executed by Purchaser pursuant hereto and to carry out the transactions
contemplated hereunder and thereunder.
8.2. Authority of Purchaser. All necessary action, corporate or
otherwise, has been taken by Purchaser to authorize the execution, delivery and
performance of this Agreement, the instruments and other documents required to
be executed by Purchaser pursuant hereto and consummation of the transactions
contemplated hereby and thereby and the same are, or when executed at the
Closing will be, the valid and binding obligations of Purchaser enforceable in
accordance with their terms, except that enforcement thereof may be limited by
receivership, conservatorship and supervisory powers of bank regulatory agencies
generally as well as bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting enforcement of creditors' rights generally and except
that enforcement thereof may be subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law) and the availability of equitable remedies.
8.3. Non-Contravention. The execution and delivery of this Agreement
and any instruments or other documents executed pursuant hereto by Purchaser do
not and, subject to the receipt of all Regulatory Approvals and Third Party
Consents, the consummation of the transactions contemplated by this Agreement
will not, constitute (a) a breach or violation of or default under any law,
rule, regulation, judgment, order, governmental permit or license of Purchaser
or to which Purchaser is subject or (b) a breach or violation of or a default
under the charter or Bylaws of Purchaser or any material contract or other
instrument to which Purchaser is a party or by which Purchaser is bound, in each
case, which breach, violation or default would
13
-13-
not have a material adverse effect on Purchaser's ability to consummate the
transactions contemplated hereby.
8.4. Legal Proceedings. There are no actions, suits, or proceedings,
whether civil, criminal or administrative, pending or, to Purchaser's knowledge,
threatened against or affecting Purchaser which could have a material adverse
effect on Purchaser's ability to consummate the transactions contemplated
hereby.
8.5. Regulatory Matters.
(a) There are no pending or, to the knowledge of Purchaser, threatened,
disputes or controversies between Purchaser and any federal, state or local
governmental authority that (i) would reasonably be expected to have a material
adverse effect upon the financial condition of Purchaser, (ii) would reasonably
be expected to prevent or impair the ability of Purchaser to perform its
obligations under this Agreement in any material respect or (iii) would
reasonably be expected to impair the validity or consummation of this Agreement
or the transactions contemplated hereby. Purchaser has not received any
indication from any federal, state or other governmental agency that such agency
would oppose or refuse to grant or issue its consent or approval, if required,
with respect to the transactions contemplated hereby. Purchaser believes that it
can satisfy all capital and other regulatory requirements necessary to obtain
all Regulatory Approvals. To the best of Purchaser's knowledge, Purchaser will
not be required to divest deposit liabilities, branches, loans or any business
or line of business as a condition to the receipt of any of the Regulatory
Approvals. Purchaser has no knowledge of any fact or circumstance relating to
Purchaser that is reasonably likely to materially impede or delay receipt by
Purchaser of any of the Regulatory Approvals.
(b) The deposits of Purchaser are insured by the FDIC in accordance
with the FDIA and Purchaser has paid all assessments and has filed all reports
required by the FDIC.
(c) As of the date hereof, without giving effect to the transactions
contemplated hereby, and following the consummation of the transactions
contemplated hereby, on a pro forma basis, Purchaser will (i) remain "adequately
capitalized", as defined in the Federal Deposit Insurance Corporation
Improvement Act of 1991, as amended, and (ii) meet all capital requirements,
standards and ratios required by each state or federal bank regulator with
jurisdiction over Purchaser, including without limitation, any such higher
requirement, standard or ratio as shall apply to institutions engaging in the
acquisition of insured institution deposits, assets or branches, and no such
regulator has indicated that it will condition any of the Regulatory Approvals
upon an increase in Purchaser's capital or compliance with any special capital
requirement, standard or ratio.
(d) The Purchaser is a state non-member bank.
(e) The Purchaser has a "satisfactory" rating under the Community
Reinvestment Act.
8.6. Sufficient Capital. Purchaser will have sufficient capital on the
Closing Date to support the acquisition of the Assumed Liabilities by Purchaser
and to perform its other obligations hereunder and under any of the other
documents executed in connection herewith.
14
-14-
8.7. Brokerage. Purchaser has not incurred or become liable for any
broker's commission or finder's fee relating to or in connection with the
transactions contemplated by this Agreement, and Purchaser agrees that it will
indemnify and hold harmless Seller against any liability for any fees or
commissions of any such broker.
ARTICLE IX
COVENANTS OF PURCHASER
Purchaser covenants and agrees with Seller as follows:
9.1. Conduct of Business. Purchaser will operate its business in the
ordinary course between the date hereof and the Closing Date and will not
materially change its method or manner of doing business between the date hereof
and the Closing Date.
9.2. Confidentiality of Documents, Records and Information. Prior to
the Closing Date, Purchaser will hold in confidence all documents, records and
information concerning Seller furnished or made available to Purchaser and not
in the public domain and will not disclose such documents, records or
information other than to directors, principal executive officers, accountants
and lawyers of Purchaser on a need to know basis except pursuant to legal
process. If the transactions contemplated by this Agreement are not consummated,
Purchaser shall promptly return all such documents, records and information and
any copies thereof to Seller and Purchaser will hold in confidence all such
documents, records, and information concerning Seller and not use it for any
purpose whatsoever.
9.3. Regulatory Approvals and Standards.
(a) Purchaser will use its best efforts to obtain as expeditiously as
possible the Regulatory Approvals and will prepare and file within fifteen (15)
days after the execution of this Agreement all necessary applications of
Purchaser for the Regulatory Approvals. Purchaser will supply to Seller in
advance copies of all proposed regulatory applications and filings and will use
reasonable efforts to reflect any comments of Seller in such applications and
filings. Purchaser will supply to Seller upon filing copies of (i) all
regulatory applications and filings made by Purchaser in connection with
obtaining any Regulatory Approval and (ii) all written correspondence received
by Purchaser with respect to such regulatory applications and filings. Seller
shall be permitted to deliver copies of such regulatory applications, filings
and written correspondence to UPS, the FDIC, the Federal Reserve Board, the
Federal Reserve Bank of Boston, the CBD and the New Jersey Department of
Banking. As of the Closing Date, Purchaser will satisfy any and all of the
standards and requirements reasonably within its control imposed as a condition
to obtaining or necessary to comply with Regulatory Approvals. Purchaser shall
pay any fees charged by any regulatory authorities to which it must apply for
any of the Regulatory Approvals. Purchaser shall take no action which would
adversely affect or delay the ability of any party hereto to obtain any
Regulatory Approval or to perform such party's covenants and agreements under
this Agreement. Purchaser shall notify Seller promptly (and in no event later
than two (2) Business Day following notice) of any significant development with
respect to any application or notice Purchaser files with any governmental
authority in connection with the transactions contemplated by this Agreement. On
or before the Closing Date, if requested by Seller, Purchaser will submit to the
FDIC, the Federal Reserve Board, the Federal Reserve Bank of Boston and the CBD,
with a copy thereof to Seller and UPS, a
15
-15-
certificate in the form attached hereto as Exhibit C with such modifications, if
any, as may be requested by any of the foregoing agencies if such modifications
would not result in Purchaser (x) being unable to deliver such certificate, (y)
assuming additional risks not contemplated by this Agreement, or (z) incurring
incremental expense not reimbursed to it by Seller.
(b) From the date hereof through the Closing Date, Purchaser shall (i)
remain "adequately capitalized" as defined in the Federal Deposit Insurance
Corporation Improvement Act of 1991, as amended, and (ii) meet all capital
requirements, standards and ratios required by each state or federal bank
regulator with jurisdiction over Purchaser, including without limitation, any
such higher requirement, standard or ratio as shall apply to institutions
engaging in the acquisition of insured institution deposits, assets or branches.
9.4. Corporate and Other Consents; Compliance with Law. Purchaser shall
use its best efforts to secure all necessary Third Party Consents (except those
which Seller has expressly agreed herein to obtain) and shall provide copies to
Seller upon Seller's request.
9.5.Solicitation of Accounts Prior to Closing. Notwithstanding anything
to the contrary contained in this Agreement, prior to the Closing Date, neither
Purchaser nor its Affiliates shall directly solicit Customers through
advertising specifically referencing or targeted to such Customers in a way
which is likely to induce such customers to close Deposit Liability accounts and
open accounts directly with Purchaser or would otherwise result in the transfer
of all or a portion of an existing Deposit Liability from Seller.
ARTICLE X
CLOSING CONDITIONS
The obligations of each of Seller and Purchaser to complete the
transactions provided for in this Agreement are conditioned upon fulfillment at
or before the Closing of each of the following Closing Conditions:
(a) All Regulatory Approvals shall have been obtained and all
appropriate notices to bank regulatory agencies or authorities shall have been
given, including without limitation the notices to the FDIC, and the approvals
of the FDIC, the CDB and the New Jersey Department of Banking, and all necessary
conditions to such approvals, including without limitation any legally required
waiting periods, shall have been fully satisfied or expired.
(b) The Merger Agreement shall not have been terminated.
(c) Each party shall have complied, in all material respects, with each
of its covenants and undertakings set forth in this Agreement to be observed
through the Closing and each party will furnish the other party with such
certificates of its officers or others and such other documents to evidence such
compliance as the other party may reasonably request.
(d) The representations and warranties of each party set forth in this
Agreement shall continue to be accurate, in all material respects, as of the
Closing and each party will furnish to the other party such certificates of its
officers or others and such other documents to evidence such continued accuracy
as the other party may reasonably request.
16
-16-
(e) Each party shall have delivered to the other party copies of (i)
all records, certified by their Clerk or an Assistant Clerk or Secretary or
Assistant Secretary, as the case may be, to be true and complete on and as of
the day of Closing, of all corporate action taken to authorize the execution,
delivery and performance of this Agreement, and the instruments and other
documents required hereby to be executed by such party and consummation of the
transactions contemplated hereby and thereby and (ii) the incumbency and
signature of officers executing this Agreement and the instruments or other
documents contemplated hereby.
(f) Seller shall have obtained sufficient funds to fund Seller's
Closing Payment and shall have obtained all necessary consents from UPS for the
use of such funds to make Seller's Closing Payment.
(g) The amount of Deposit Liabilities on the Closing Date shall be not
less than ninety percent (90%) of the Base Deposit Amount.
ARTICLE XI
TERMINATION OF AGREEMENT
11.1. Termination. At any time prior to the Closing, this Agreement may
be terminated:
(a) by mutual consent of the parties with appropriate evidence of
corporate authority to so act,
(b) by either party, if there has been a material misrepresentation or
breach by the other party in its representations, warranties and covenants set
forth herein,
(c) by Purchaser or Seller, if the Closing Conditions have not been
satisfied at or prior to the Closing, other than a Closing Condition that is
reasonably within the electing party's control,
(d) by either party, if the Merger Agreement shall have been
terminated, or
(e) by either party, if the Closing has not occurred within 180 days
after the date of this Agreement or within such later time frame as the parties
shall have mutually agreed in writing.
11.2. Effect of Termination. If this Agreement shall be terminated as
provided in Section 11.1, all obligations of the parties hereunder shall
terminate without liability of either party to the other. In the event of a
termination of this Agreement pursuant to Section 11.1(b) on account of a
willful breach of any representation, warranty, covenant or agreement contained
in this Agreement, the breaching party shall remain liable for any and all
damages, costs and expenses, including all reasonable attorneys' fees, sustained
or incurred by the non-breaching party as a result thereof or in connection with
the enforcement of its rights thereunder. In any event, upon termination of this
Agreement, each party will return all papers, documents, financial statements
and other data furnished to it by or with respect to the other party, including
any copies thereof made by the returning party.
17
-17-
ARTICLE XII
INDEMNIFICATION
12.1. Seller's Indemnity. Except as otherwise provided in this
Agreement, Seller shall indemnify, hold harmless and defend Purchaser, its
Affiliates, and their respective directors, officers, agents and employees from
and against all claims, losses, liabilities, demands and obligations (including
reasonable legal fees and expenses) (collectively, "Damages") which Purchaser or
any of its Affiliates and their respective directors, officers, agents and
employees shall receive, suffer or incur arising out of or resulting from (a)
any liability of Seller not assumed by Purchaser hereunder, (b) any actions
taken or omitted to be taken by Seller prior to the Closing and relating to the
Assigned Assets or Assumed Liabilities, and (c) the breach of any material
representation, warranty or covenant made by Seller in this Agreement.
12.2. Purchaser's Indemnity. Except as otherwise provided in this
Agreement, Purchaser shall indemnify, hold harmless and defend Seller, its
Affiliates and their respective directors, officers, agents and employees from
and against all Damages which Seller or any of its Affiliates and their
respective directors, officers, agents, and employees shall receive, suffer or
incur arising out of or resulting from (a) any liability of Seller assumed by
Purchaser hereunder, including the Assumed Liabilities, (b) any actions taken or
omitted to be taken by Purchaser from or after the Closing, and relating to the
Assigned Assets and Assumed Liabilities, and (c) the breach of any material
representation, warranty or covenant made by Purchaser in this Agreement.
12.3. Indemnification Procedure. If a party entitled to indemnification
hereunder ("Indemnified Party") is aware that a claim, demand or other
circumstance exists that has given or may reasonably be expected to give rise to
a right of indemnification under this Article XII (whether or not the amount of
the claim is then quantifiable), such Indemnified Party shall promptly give
written notice thereof to the other party ("Indemnitor"), and the Indemnified
party will thereafter keep the Indemnitor reasonably informed with respect
thereto, provided that failure of the Indemnified Party to give the Indemnitor
prompt notice as provided herein shall not relieve the Indemnitor of its
obligations hereunder except to the extent, if any, that the Indemnitor's rights
shall have been prejudiced or the Indemnitor's liability shall have been
increased thereby. In case any such action, suit or proceeding is brought
against an Indemnified Party, the Indemnitor shall be entitled to participate in
(and, in its discretion, to assume) the defense thereof with counsel reasonably
satisfactory to the Indemnified Party, provided, however, that the Indemnified
Party shall be entitled to participate in any such action, suit or proceeding
with counsel of its own choice at the expense of the Indemnitor if, in the good
faith judgment of the Indemnified Party's counsel, representation by the
Indemnitor's counsel may present a conflict of interest or there may be defenses
available to the Indemnified Party which are different from or in addition to
those available to the Indemnitor. The Indemnitor will not settle any claim,
action, suit or proceeding which would give rise to the Indemnitor's liability
under its indemnity unless such settlement includes as an unconditional term
thereof the giving by the claimant or plaintiff of a release of the Indemnified
Party, in form and substance reasonably satisfactory to the Indemnified Party
and its counsel, from all liability with respect to such claim, action, suit or
proceeding. If the Indemnitor assumes the defense of any claim, action, suit or
proceeding as provided in this Section 12.3, the Indemnified Party shall be
18
-18-
permitted to join in the defense thereof with counsel of its own selection and
at its own expense. If the Indemnitor shall not assume the defense of any claim,
action, suit or proceeding, the Indemnified Party may defend against such claim,
action, suit or proceeding in such manner as it may deem appropriate, provided
that an Indemnified Party shall not settle any claim, action, suit or proceeding
which would give rise to the Indemnitor's liability under its indemnity without
the prior written consent of the Indemnitor, which consent shall not be
unreasonably withheld.
12.4. Survival. All indemnities contained in or made pursuant to this
Agreement shall survive the Closing for a period of one (1) year after the
Closing Date, except as to any claim for which written notice shall have been
given prior to such date.
12.5. Limitations on Liability. Notwithstanding anything to the
contrary contained in this Article XIII, no party shall be entitled to
indemnification pursuant to Sections 12.1(c) or 12.2(c) until, and only to the
extent, such aggregate Damages exceed $100,000. As provided in Section 14.3, in
no event shall any party be indemnified for any incidental, consequential,
special, exemplary or punitive damages. The aggregate amount that may be
received by either party hereto from the other party hereto pursuant to this
Article 12 shall not exceed the Discount.
12.6. General. (a) Each Indemnified Party shall be obligated in
connection with any claim for indemnification under this Article to use all
commercially reasonable efforts to obtain any insurance proceeds available to
such Indemnified Party with regard to the applicable claims. In addition, the
amount which any Indemnitor is or may be required to pay to any Indemnified
Party pursuant to this Article XII shall be reduced (retroactively, if
necessary) by any insurance proceeds or other amounts actually recovered (net of
any direct relevant collection costs) by or on behalf of such Indemnified Party
in reduction of the related Damages. If an Indemnified Party shall have received
the payment required by this Agreement from the Indemnitor in respect of Damages
and shall subsequently receive insurance proceeds or other amounts in respect of
such Damages, then such Indemnified Party shall promptly repay to the Indemnitor
a sum equal to the amount of such insurance proceeds or other amounts actually
received (net of any direct relevant collection costs).
(b) In addition to the requirements of paragraph (a) above, each
Indemnified Party shall be obligated in connection with any claim for
indemnification under this Article to use all commercially reasonable efforts to
mitigate Damages upon and after becoming aware of any event which could
reasonably be expected to give rise to such Damages.
(c) Subject to the rights of existing insurers of an Indemnified Party,
an Indemnitor shall be subrogated to any right of action which the Indemnified
Party may have against any other Person with respect to any matter giving rise
to a claim for indemnification from such Indemnitor hereunder.
(d) The indemnification provided in this Article shall be the exclusive
post-Closing Date remedy available to any Indemnified Party with respect to any
breach of any representation, warranty, covenant or agreement made by Purchaser
to Seller in this Agreement.
(e) Notwithstanding anything contained in any provision of this
Agreement to the contrary, each party hereto understands and agrees that neither
party hereto is making any
19
-19-
representation or warranty whatsoever, express or implied, other than the
representations and warranties expressly made by such party herein.
12.7. Claims of Depositors. If any Customer, instead of accepting the
obligation of Purchaser to pay the Deposit Liabilities, shall assert a claim
against Seller after the Closing for any part of any such assumed Deposit
Liabilities, Purchaser agrees to provide Seller on demand with money sufficient
to enable it to pay the claims of such depositors, not exceeding the amount set
forth opposite their respective names as they appear on the records of Purchaser
as of the time of making such demand.
ARTICLE XIII
OTHER ADJUSTMENTS
13.1. Closing Schedule. It is understood that the Schedule of Deposit
Liabilities was calculated as of the date set forth thereon. It is expected that
certain of the figures and items set forth on such schedule will change between
the time of execution hereof and the Closing and that, prior to the Closing,
such schedule may not represent the complete list of Deposit Liabilities which
Purchaser shall purchase or assume pursuant to the terms hereof. Seller shall,
periodically after the date hereof and five (5) Business Days prior to Closing,
recalculate the figures and reinventory the items set forth respectively on the
Schedule of Deposit Liabilities, and shall deliver a copy of such revised
schedule to Purchaser in order to enable Seller to estimate the closing payment
that will be required by it pursuant to Section 4.1 hereof. Seller shall further
adjust all such figures and items as of the close of business on the day
immediately preceding the Closing Date, and shall provide to Purchaser at the
Closing such revised schedule (the "Final Closing Schedule"). The Final Closing
Schedule shall be used in calculating the payment to be made by Seller to
Purchaser pursuant to Section 4.1.
13.2. Other Adjustments. After the Closing, the parties will make such
other adjustments as may be necessary to fulfill the provisions of this
Agreement, including, but not limited to, any adjustments required to correct
any error or mistake in the Final Closing Schedule.
ARTICLE XIV
MISCELLANEOUS
14.1. Fees and Expenses. Each of the parties will bear its own expenses
in connection with the negotiation and the consummation of the transactions
contemplated by this Agreement, except that Purchaser shall bear all costs of
the conversion contemplated by Article V hereof and Seller shall bear all costs
associated with the deconversion of its records as contemplated by Article V
hereof.
14.2. Law Governing. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
HEREUNDER SHALL BE CONSTRUED UNDER AND GOVERNED BY THE LAWS OF THE STATE OF
CONNECTICUT AND, TO THE EXTENT APPLICABLE, THE LAWS OF THE UNITED STATES OF
AMERICA.
20
-20-
14.3. Waiver of Certain Damages. EACH OF THE PARTIES HERETO TO THE
FULLEST EXTENT PERMITTED BY LAW IRREVOCABLY WAIVES ANY RIGHTS THAT THEY MAY HAVE
TO PUNITIVE, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES IN RESPECT
OF ANY LITIGATION BASED UPON, OR ARISING OUT OF, THIS AGREEMENT OR ANY RELATED
AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS OR ACTIONS OF
ANY OF THEM RELATING THERETO.
14.4. Consent to Jurisdiction; Waiver of Jury Trial. EACH PARTY HERETO,
TO THE EXTENT IT MAY LAWFULLY DO SO, HEREBY SUBMITS TO THE JURISDICTION OF THE
COURTS OF THE STATE OF NEW JERSEY AND THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW JERSEY, AS WELL AS TO THE JURISDICTION OF ALL COURTS FROM WHICH
AN APPEAL MAY BE TAKEN OR OTHER REVIEW SOUGHT FROM THE AFORESAID COURTS, FOR THE
PURPOSE OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF SUCH PARTY'S
OBLIGATIONS UNDER OR WITH RESPECT TO THIS AGREEMENT OR ANY OF THE AGREEMENTS,
INSTRUMENTS OR DOCUMENTS CONTEMPLATED HEREBY, AND EXPRESSLY WAIVES ANY AND ALL
OBJECTIONS IT MAY HAVE AS TO VENUE IN ANY OF SUCH COURTS.
EACH PARTY HERETO HEREBY WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM ARISING OUT OF OR IN ANY WAY CONCERNED WITH THIS AGREEMENT OR
ANY OF THE AGREEMENTS, INSTRUMENTS OR DOCUMENTS CONTEMPLATED HEREBY. NO PARTY
HERETO, NOR ANY ASSIGNEE OR SUCCESSOR OF A PARTY HERETO SHALL SEEK A JURY TRIAL
IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM OR ANY OTHER LITIGATION PROCEDURE BASED
UPON, OR ARISING OUT OF, THIS AGREEMENT OR ANY OF THE AGREEMENTS, INSTRUMENTS OR
DOCUMENTS CONTEMPLATED HEREBY. NO PARTY WILL SEEK TO CONSOLIDATE ANY SUCH
ACTION, IN WHICH A JURY TRIAL HAS BEEN WAIVED, WITH ANY OTHER ACTION IN WHICH A
JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS HAVE BEEN
FULLY DISCUSSED BY THE PARTIES HERETO, AND THE PROVISIONS SHALL BE SUBJECT TO NO
EXCEPTIONS. NO PARTY HAS IN ANYWAY AGREED WITH OR REPRESENTED TO ANY OTHER PARTY
THAT THE PROVISIONS OF THIS SECTION WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
14.5. Notices. All notices, requests, demands and other communications
hereunder shall be deemed to have been duly given if delivered by hand or by
express overnight courier service, or mailed by certified or registered mail,
return receipt requested, or sent by telecopy, transmission confirmed, addressed
as follows:
21
-21-
If to Seller:
First International Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00x00
Attention: Xxxxxx X. Xxxxxxxxx
President
Facsimile No. (000) 000-0000
with a copy to:
Xxxxxxx Xxxx LLP
Xxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Facsimile No. (000) 000-0000
If to Purchaser:
Xxxxxx United Bank
0000 XxxXxxxxx Xxxxxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
President & Chief Executive Officer
with a copy to:
Xxxxxx United Bank
0000 XxxXxxxxx Xxxxxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxx X. XxXxxxxxxx, Esq.
or to such other address of which either party may by registered mail notify the
other party at its then current notice address.
14.6. Entire Agreement. This Agreement is complete, and all promises,
representations, understandings, warranties and agreements with reference to the
subject matter hereof, and all inducements to the making of this Agreement
relied upon by either party hereto, have been expressed herein. This Agreement
supersedes any prior or contemporaneous agreement or understanding between the
parties hereto, oral or written, pertaining to any such matters which agreements
or understandings shall be of no further force or effect for any persons;
provided, however, that the terms of any confidentiality agreement between the
parties
22
-22-
hereto previously entered into, to the extent not inconsistent with any
provisions of this Agreement, shall continue to apply.
14.7. Assignability. This agreement shall be binding upon, and shall be
enforceable by and inure to the benefit of, the parties named herein and their
respective successors and assigns; provided, however, that this Agreement may
not be assigned by either party without the prior written consent of the other.
14.8. Survival. Except as otherwise provided in Sections 2.1, 2.2, 3.1,
3.2, 4.1, 4.2, 4.4, 5.3, 5.5, 5.6, 5.7, Article XII, Article XIII and Article
XIV or in any instrument or document furnished in connection herewith, no
representations, warranties, covenants or agreements made by the parties herein
or therein shall survive the Closing.
14.9. Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original and
all of which when taken together shall constitute one and the same Agreement.
14.10. Headings. The headings and subheadings of the Articles and
Sections contained in this Agreement, except the terms identified for definition
in Article I and elsewhere in this Agreement, are inserted for convenience only
and shall not affect the meaning or interpretation of this Agreement or any
provision thereof.
14.11. Modification; Assignment. No amendment or other modification,
rescission, release, annulment or assignment of any part of this Agreement shall
be effective except pursuant to a written agreement subscribed by the duly
authorized representatives of the parties hereto.
14.12. Third Party Beneficiaries. The parties hereto intend that this
Agreement shall not benefit or create any right or cause of action in or on
behalf of any person other than the parties hereto.
14.13. Specific Performance. The parties hereto acknowledge that
monetary damages could not adequately compensate either party hereto in the
event of a breach of this Agreement by the other, that the non-breaching party
would suffer irreparable harm in the event of such breach and that the
non-breaching party shall have, in addition to any other rights or remedies it
may have at law or in equity, specific performance and injunctive relief as a
remedy for the enforcement hereof.
14.14. Interpretation. Article titles, headings to sections and any
table of contents are inserted for convenience of reference only and are not
intended to be a part of or to affect the meaning or interpretation hereof. The
Schedules and Exhibits referred to herein shall be construed with and as an
integral part of this Agreement to the same extent as if they were set forth
verbatim herein. As used herein, "include", "includes" and "including" are
deemed to be followed by "without limitation" whether or not they are in fact
followed by such words or words of like import; "writing", "written" and
comparable terms refer to printing, typing , lithography and other means of
reproducing words in a visible form; references to a person are also to its
successors and assigns; except as the context may otherwise require, "hereof",
"herein", "hereunder" and comparable terms refer to the entirety hereof and not
to any particular
23
-23-
article, section or other subdivision hereof or attachment hereto; references to
any gender include the other; except as the context may otherwise require, the
singular includes the plural and vice versa; references to any agreement or
other document are to such agreement or document as amended and supplemented
from time to time; references to "Article", "Section" or another subdivision or
to an "Exhibit" or "Schedule" are to an article, section or subdivision hereof
or an "Exhibit" or "Schedule". The parties acknowledge that each party and its
counsel have reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation, construction and
enforcement of this Agreement or any amendment, schedule or exhibit hereto.
[Signatures Follow on Next Page]
24
-24-
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date set forth above by their duly authorized
representatives.
FIRST INTERNATIONAL BANK:
By: /s/Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
Its Director
By: /s/Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Its Director
By: /s/Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Its Director
By: /s/Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Its Director
By: /s/Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Its Director
By: /s/Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx
Its Director
By: /s/Xxxx Xxxxxxxxxx
Xxxx Xxxxxxxxxx
Its Director
By: /s/Xxxxx X. Xxxxxxxxxx
Xxxxx X. Xxxxxxxxxx
Its Director
25
-25-
By: /s/Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
Its Director
By: /s/Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Its Director
By: /s/Xxxxxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxxxxxx
Its Director
By: /s/Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Its Director
00
-00-
XXXXXX XXXXXX XXXX:
By: /s/Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Its Director
By: /s/Xxxxxx X.Xxxxxxxxxx
Xxxxxx X. Xxxxxxxxxx
Its Director
By: /s/Xxxx Xxxxx
Xxxx Xxxxx
Its Director
By:
Xxxx xxXxxxxxx, Xx.
Its Director
By: /s/Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Its Director
By: /s/Xxxxx X. Xxxxxxx
Its Director
By: /s/W. Xxxxx XxXxxxx
W. Xxxxx XxXxxxx
Its Director
By: /s/Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Its Director
27
-27-
By:
Xxxxxxx F.X. Xxxxx
Its Director
By: /s/Xxxxx X. Xxxxx
Xxxxx X.Xxxxx
Its Director
By:
Xxxxx X. Xxxxxxxxx
Its Director
By: /s/Sr. Grace Xxxxxxx Xxxxxxxx
Xx. Xxxxx Xxxxxxx Xxxxxxxx
Its Director
By: /s/Xxxx X. Xxxxxxxx, Xx.
Xxxx X. Xxxxxxxx, Xx.
Its Director
