AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated as of May 29, 1998
("Agreement"), is among Valley National Bancorp, a New Jersey corporation and
registered bank holding company ("Valley"), Valley National Bank, a national
banking association ("VNB"), Wayne Bancorp, Inc., a Delaware corporation and
registered unitary savings and loan holding company ("Wayne") and Xxxxx Savings
Bank, F.S.B., a federally-chartered savings bank (the "Bank").
RECITALS
Valley desires to acquire Wayne and Wayne's Board of Directors
has determined, based upon the terms and conditions hereinafter set forth, that
the acquisition is in the best interests of Wayne and its stockholders. The
acquisition will be accomplished by merging Wayne into Valley with Valley as the
surviving corporation and, at the same time, merging the Bank into VNB with VNB
as the surviving bank, and Wayne stockholders receiving the consideration
hereinafter set forth. The Boards of Directors of Wayne, Valley, the Bank and
VNB have duly adopted and approved this Agreement and the Board of Directors of
Wayne has directed that it be submitted to its stockholders for approval.
As a condition precedent to entering into this Agreement,
Valley has required that Xxxxx xxxxx it an option to purchase authorized but
unissued shares of Wayne common stock and, as a consequence, Valley and Wayne
have entered into a Stock Option Agreement, dated the date hereof (the "Valley
Stock Option").
NOW, THEREFORE, intending to be legally bound, the parties
hereto agree as follows:
ARTICLE I
THE MERGER
1.1. The Merger. Subject to the terms and conditions of this
Agreement, at the Effective Time (as hereafter defined), Wayne shall be merged
with and into Valley (the "Merger") in accordance with the New Jersey Business
Corporation Act ("NJBCA") and the Delaware General Corporation Law ("DGCL") and
Valley shall be the surviving corporation (the "Surviving Corporation").
Immediately following the Effective Time, the Bank shall be merged with and into
VNB as provided in Section 1.7 hereof.
1.2. Effect of the Merger. At the Effective Time (as hereafter
defined), the Surviving Corporation shall be considered the same business and
corporate entity as each of Wayne and Valley and thereafter all the property,
rights, powers and franchises of each of Wayne and Valley shall vest in the
Surviving Corporation and the Surviving Corporation shall be subject to and be
deemed to have assumed all of the debts, liabilities, obligations and duties of
each of Wayne and Valley and shall have succeeded to all of each of their
relationships, fiduciary or otherwise, as fully and to the same extent as if
such property, rights, privileges, powers, franchises, debts, obligations,
duties and relationships had been originally acquired, incurred or entered into
by the Surviving Corporation.
1.3. Certificate of Incorporation. The certificate of
incorporation of Valley as it exists immediately prior to the Effective Time
shall not be amended by the Merger, but shall continue as the certificate of
incorporation of the Surviving Corporation until otherwise amended as provided
by law.
1.4. Bylaws. The bylaws of Valley as they exist immediately
prior to the Effective Date shall continue as the by-laws of the Surviving
Corporation until otherwise amended as provided by law.
1.5. Directors and Officers. The directors and officers of
Valley as of the Effective Time shall continue as the directors and officers of
the Surviving Corporation, with the addition provided for in Section 5.15
hereof.
1.6 Closing Date, Closing and Effective Time. Unless a
different date, time and/or place are agreed to by the parties hereto, the
closing of the Merger (the "Closing") shall take place at 10:00 a.m., at the
offices of Valley, 0000 Xxxxxx Xxxx, Xxxxx, Xxx Xxxxxx, xx a date (the "Closing
Date") which shall be the tenth business day following the receipt of all
necessary regulatory and governmental approvals and consents and the expiration
of all statutory waiting periods in respect thereof and the satisfaction or
waiver of all of the conditions to the consummation of the Merger specified in
Article VI hereof (other than the delivery of certificates, opinions and other
instruments and documents to be delivered at the Closing). Notwithstanding the
foregoing, the Closing shall not occur prior to October 2, 1998 unless Valley
consents in writing. The Merger shall become effective (and be consummated) upon
the effective time specified by Valley and Wayne in the certificates of merger
(the "Certificates of Merger"), which shall be prepared by Valley, shall be in
form and substance satisfactory to Valley and Wayne, and shall be filed with the
Secretary of State of the State of New Jersey and with the Secretary of State of
the State of Delaware. The parties currently anticipate that the Certificates of
Merger shall specify as the effective time the opening of business on the first
business day following the Closing Date. If no effective time is specified in
the Certificates of Merger, the Merger shall become effective (and be
consummated) upon the later to be filed of the two Certificates of Merger.
1.7. The Bank Merger. Immediately following the Effective
Time, the Bank shall be merged with and into VNB (the "Bank Merger") in
accordance with the provisions of the National Bank Act, the Home Owners' Loan
Act of 1933 ("HOLA") and/or the regulations of the office of Thrift Supervision
("OTS"), and VNB shall be the surviving bank (the "Surviving Bank"). Upon the
consummation of the Bank Merger, the separate existence of the Bank shall cease
and the Surviving Bank shall be considered the same business and corporate
entity as each of the Bank and VNB and all of the property, rights, powers and
franchises of each of the Bank and VNB shall vest in the Surviving Bank and the
Surviving Bank shall be deemed to have assumed all of the debts, liabilities,
obligations and duties of each of the Bank and VNB and shall have succeeded to
all of each of their relationships, fiduciary or otherwise, as fully and to the
same extent as if such property, rights, privileges, powers, franchises, debts,
obligations, duties and relationships had been originally acquired, incurred or
entered into by the Surviving Bank. Upon the consummation of the Bank Merger,
the articles of association and bylaws of VNB shall become the articles of
association and bylaws of the Surviving Bank, the officers and employees of VNB
and the officers and employees of the Bank shall be the officers and employees
of the Surviving Bank with such additions as the Board of Directors of VNB shall
determine, and the directors of VNB shall be the directors of the Surviving Bank
with one addition from the directors of Wayne as specified herein. In connection
with the execution of this Agreement, the Bank and VNB shall execute and deliver
a separate merger agreement (the "Bank Merger Agreement") in substantially the
form of Exhibit A, annexed hereto, for delivery to the Office of the Comptroller
of the Currency ("OCC") and the OTS for approval of the Bank Merger.
1.8. Liquidation Account. The liquidation account established
by the Bank pursuant to the plan of conversion adopted in connection with its
conversion from mutual to stock form shall, to the extent required by applicable
law, continue to be maintained by VNB after the Bank Merger for the benefit of
those persons and entities who were savings account holders of the Bank on the
eligibility and supplemental eligibility record dates for such conversion and
who continue from time to time to have rights therein. If required by the rules
and regulations of the OTS, VNB shall amend its articles to specifically provide
for the continuation of the liquidation account previously established by the
Bank.
ARTICLE II
CONVERSION OF WAYNE COMMON STOCK AND OPTIONS
Each share of common stock, $0.01 par value, of Wayne ("Wayne
Common Stock"), issued and outstanding immediately prior to the Effective Time,
and each option to purchase shares of Wayne Common Stock validly issued pursuant
to the Xxxxx Bancorp, Inc. 1996 Stock-Based Incentive Plan (the "Wayne Option
Plan") and outstanding immediately prior to the Effective Time (each a "Wayne
Option") shall, by virtue of the Merger and without any action on the part of
the holder thereof, be converted or cancelled at the Effective Time in
accordance with this Article II.
2.1 Conversion of Wayne Common Stock; Exchange Ratio; Cash in
Lieu of Fractional Shares. Each share of Wayne Common Stock issued and
outstanding immediately prior to the Effective Time, other than shares to be
cancelled pursuant to Section 2.4 hereof, shall be converted into the right to
receive 1.10 (the "Exchange Ratio") shares of Common Stock, no par value, of
Valley ("Valley Common Stock"), subject to adjustment as set forth in Section
2.6 below. No fractional shares of Valley Common Stock will be issued, and in
lieu thereof, each holder of Wayne Common Stock who would otherwise be entitled
to a fractional interest will receive an amount in cash determined by
multiplying such fractional interest by the Average Pre-Closing Price of Valley
Common Stock. "Average Pre-Closing Price of Valley Common Stock" means the
average of the Closing Prices of Valley Common Stock for the five consecutive
full trading days in which such shares are quoted on the New York Stock Exchange
(the "NYSE") ending with (and including) the Determination Date. "Closing Price"
of Valley Common Stock means the daily closing sales price of such stock as
reported on the NYSE (as reported in The Wall Street Journal or, if not reported
thereby, another authoritative source as chosen by Valley). "Determination Date"
means the date of the correspondence by which the OCC notifies Valley that the
OCC has granted its approval required for consummation of the Merger.
2.2. Exchange of Shares.
(a) Wayne and Valley hereby appoint Valley National Bank,
Trust Department as the exchange agent (the "Exchange Agent") for purposes of
effecting the conversion of Wayne Common Stock and Wayne Options. As soon as
practicable after the Effective Time, the Exchange Agent shall mail to each
holder of record (a "Record Holder") of a Certificates or Certificates which,
immediately prior to the Effective Time represented outstanding shares of Wayne
Common Stock (the "Certificates"), a mutually agreed upon letter of transmittal
(which shall specify that delivery shall be effected, and risk of loss and title
to the Certificates shall pass, only upon delivery of the Certificates to the
Exchange Agent), and instructions for use in effecting the surrender of the
Certificates in exchange for Valley Common Stock (and cash in lieu of fractional
shares) as provided in Section 2.1 hereof.
(b) Upon surrender of Certificates for exchange and
cancellation to the Exchange Agent, together with such letter of transmittal,
duly executed, the Record Holder shall be entitled to promptly receive in
exchange for such Certificates the consideration as provided in Section 2.1
hereof and the Certificates so surrendered shall be canceled. The Exchange Agent
shall not be obligated to deliver or cause to be delivered to any Record Holder
the consideration to which such Record Holder would otherwise be entitled until
such Record Holder surrenders the Certificates for exchange or, in default
thereof, an appropriate Affidavit of Loss and Indemnity Agreement and/or a bond
as may be reasonably required in each case by Valley. Notwithstanding the time
of surrender of the Certificates, Record Holders shall be deemed stockholders of
Valley for all purposes from the Effective Time, except that Valley shall
withhold the payment of dividends from any Record Holder until such Record
Holder effects the exchange of Certificates for Valley Common Stock. (Such
Record Holder shall receive such withheld dividends, without interest, upon
effecting the share exchange.)
(c) After the Effective Time, there shall be no transfers on
the stock transfer books of Wayne of the shares of Wayne Common Stock which were
outstanding immediately prior to the Effective Time and, if any Certificates
representing such shares are presented for transfer, they shall be canceled and
exchanged for the consideration as provided in Section 2.1 hereof.
(d) If payment of the consideration pursuant to Section 2.1
hereof is to be made in a name other than that in which the Certificates
surrendered in exchange therefor is registered, it shall be a condition of such
payment that the Certificates so surrendered shall be properly endorsed (or
accompanied by an appropriate instrument of transfer) and otherwise in proper
form for transfer, and that the person requesting such payment shall pay to the
Exchange Agent in advance any transfer or other taxes required by reason of the
payment to a person other than that of the registered holder of the Certificates
surrendered, or required for any other reason, or shall establish to the
satisfaction of the Exchange Agent that such tax has been paid or is not
payable.
(e) With respect to each outstanding Wayne Option the Exchange
Agent shall, after the Effective Time, distribute to the Optionee an amendment
to the option grant evidencing the conversion of the grant to an option to
purchase Valley Common Stock in accordance with Section 2.7 hereof.
2.3. No Dissenters' Rights. Consistent with the provisions of
the DGCL, no stockholder of Wayne shall have appraisal rights with respect to
the Merger.
2.4. Cancelled Shares. Each share of Wayne Common Stock (i)
which is held by Wayne as treasury stock or (ii) which is held by Bank or any
other direct or indirect subsidiary of Bank (except as trustee or in a fiduciary
capacity) or (iii) which is held by Valley, shall be canceled and retired at the
Effective Time.
2.5. Valley Shares. The shares of Valley Common Stock
outstanding at the Effective Time shall not be affected by the Merger, but along
with the additional shares of Valley Common Stock to be issued as provided in
Section 2.1 hereof, shall become the outstanding common stock of the Surviving
Corporation.
2.6 Anti-Dilution Adjustments. The Exchange Ratio and the
Average Pre-Closing Price of Valley Common Stock shall be appropriately adjusted
for any stock split, stock dividend, stock combination, reclassification or
similar transaction ("Capital Change") effected by Valley with respect to Valley
Common Stock between the date hereof and the Effective Time.
2.7. Wayne Stock Options. At the Effective Time, each
outstanding Wayne Option granted to an eligible individual (an "Optionee") under
the Wayne Option Plan shall be converted into a option to purchase Valley Common
Stock (a "Stock Option"), wherein (x) the right to purchase shares of Wayne
Common Stock pursuant to the Wayne Option shall be converted into the right to
purchase that same number of shares of Valley Common Stock multiplied by the
Exchange Ratio, (y) the option exercise price per share of Valley Common Stock
shall be the previous option exercise price per share of Wayne Common Stock
divided by the Exchange Ratio and (z) in all other material respects the option
shall be subject to the same terms and conditions as governed the Wayne Option
on which it was based, including the length of time within which the option may
be exercised and for any options which are "incentive stock options" (as defined
in Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"),
the adjustments shall be and are intended to be effected in a manner which is
consistent with Section 424(a) of the Code. Shares of Valley Common Stock
issuable upon exercise of Stock Options shall be covered by an effective
registration statement on Form S-8, and Valley shall file a registration
statement on Form S-8 covering such shares as soon as practicable after the
Effective Time.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF WAYNE
References herein to "Wayne Disclosure Schedule" shall mean
all of the disclosure schedules required by this Article III, dated as of the
date hereof and referenced to the specific sections and subsections of Article
III of this Agreement, which have been delivered on the date hereof by Wayne to
Valley. Wayne hereby represents and warrants to Valley as follows:
3.1. Corporate Organization.
(a) Wayne is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. Wayne has the
corporate power and authority to own or lease all of its properties and assets
and to carry on its business as it is now being conducted and is duly licensed
or qualified to do business in each jurisdiction in which the nature of the
business conducted by it or the character or location of the properties and
assets owned or leased by it makes such licensing or qualification necessary,
except where the failure to be so licensed or qualified would not have a
material adverse effect on the business, operations, assets or financial
condition of Wayne on a consolidated basis. Wayne is registered as a unitary
savings and loan holding company under HOLA.
(b) Each of the Subsidiaries of Wayne are listed in the Wayne
Disclosure Schedule. The term "Subsidiary", when used in this Agreement with
respect to Wayne, means any corporation, joint venture, association,
partnership, trust or other entity in which Wayne has, directly or indirectly at
least a 50% interest or acts as a general partner. Each Subsidiary of Wayne is
duly organized, validly existing and in good standing under the laws of its
state of incorporation. The Bank is a federally-chartered savings bank whose
deposits are insured by the Savings Association Insurance Fund ("SAIF") of the
Federal Deposit Insurance Corporation ("FDIC") to the fullest extent permitted
by law. Each Subsidiary of Wayne has the corporate power and authority to own or
lease all of its properties and assets and to carry on its business as it is now
being conducted and is duly licensed or qualified to do business in each
jurisdiction in which the nature of the business conducted by it or the
character or location of the properties and assets owned or leased by it makes
such licensing or qualification necessary, except where the failure to be so
licensed or qualified would not have a material adverse effect on the business,
operations, assets or financial condition of Wayne and its Subsidiaries on a
consolidated basis. The Wayne Disclosure Schedule sets forth true and complete
copies of the Certificates of Incorporation or Charter, as the case may be, and
Bylaws of Wayne and each Wayne Subsidiary as in effect on the date hereof.
Except as set forth in the Xxxxx Disclosure Schedule, Wayne does not own or
control, directly or indirectly, any equity interest in any corporation,
company, association, partnership, joint venture or other entity and owns no
real estate, except (i) residential real estate acquired through foreclosure or
deed in lieu of foreclosure in each individual instance with a fair market value
less than $500,000 and (ii) real estate used for its banking premises.
3.2. Capitalization.
The authorized capital stock of Wayne consists of 8,000,000
shares of Wayne Common Stock and 2,000,000 shares of preferred stock ("Wayne
Preferred Stock"). As of the date hereof, there were 2,013,124 shares of Wayne
Common Stock issued and outstanding, and 218,259 shares issued and held in the
treasury, and no shares of Wayne Preferred Stock outstanding. As of the date
hereof, there were 281,310 shares of Wayne Common Stock issuable upon exercise
of outstanding Wayne Options (the "Option Shares") granted to, directors and
officers of Wayne or the Bank pursuant to the Xxxxx Option Plan. The Wayne
Disclosure Schedule sets forth (i) all options which may be exercised for
issuance of Wayne Common Stock and the terms upon which the options may be
exercised, and (ii) true and complete copies of each of the Wayne Option Plan
and a specimen of each form of agreement pursuant to which any outstanding stock
option was granted, including a list of each outstanding stock option issued
pursuant thereto. All issued and outstanding shares of Wayne Common Stock, and
all issued and outstanding shares of capital stock of each Wayne Subsidiary,
have been duly authorized and validly issued, are fully paid, and nonassessable.
The authorized capital stock of the Bank consists of 8,000,000 shares of common
stock, $1.00 par value and 2,000,000 shares of preferred stock, $1.00 par value.
All of the outstanding shares of capital stock of each Wayne Subsidiary are
owned by Wayne and are free and clear of any liens, encumbrances, charges,
restrictions or rights of third parties. Except for the Wayne Options and the
Valley Stock Option, neither Wayne nor any Wayne Subsidiary has or is bound by
any outstanding subscriptions, options, warrants, calls, commitments or
agreements of any character calling for the transfer, purchase or issuance of
any shares of capital stock of Wayne or any Wayne Subsidiary or any securities
representing the right to purchase or otherwise receive any shares of such
capital stock or any securities convertible into or representing the right to
purchase or subscribe for any such shares, and there are no agreements or
understandings with respect to voting of any such shares. There is no
acceleration of vesting of options or restricted stock in connection with the
Merger under the Xxxxx Bancorp Inc. 1996 Stock-Based Incentive Plan.
3.3. Authority; No Violation.
(a) Subject to the approval of this Agreement and the
transactions contemplated hereby by the stockholders of Wayne, and subject to
the parties obtaining all necessary regulatory approvals, Wayne and the Bank
have full corporate power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby in accordance with the
terms hereof. The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby have been duly and validly approved by
the Board of Directors of each of Wayne and the Bank. The execution and delivery
of the Bank Merger Agreement has been duly and validly approved by the Board of
Directors of the Bank. Except for the approvals described in paragraph (b)
below, no other corporate proceedings on the part of Wayne or the Bank are
necessary to consummate the transactions contemplated hereby. This Agreement has
been duly and validly executed and delivered by Wayne and the Bank, and
constitutes valid and binding obligations of Wayne and the Bank, enforceable
against Wayne and the Bank in accordance with its terms.
(b) Neither the execution and delivery of this Agreement by
Wayne and the Bank, nor the consummation by Wayne and the Bank of the
transactions contemplated hereby in accordance with the terms hereof, or
compliance by Wayne and the Bank with any of the terms or provisions hereof,
will (i) violate any provision of Wayne's or the Bank's Certificates of
Incorporation or Charter, as the case may be, or Bylaws, (ii) assuming that the
consents and approvals set forth below are duly obtained, violate any statute,
code, ordinance, rule, regulation, judgment, order, writ, decree or injunction
applicable to Wayne or the Bank or any of their respective properties or assets,
or (iii) except as set forth in the Wayne Disclosure Schedule, violate, conflict
with, result in a breach of any provisions of, constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default) under,
result in the termination of, accelerate the performance required by, or result
in the creation of any lien, security interest, charge or other encumbrance upon
any of the respective properties or assets of Wayne or the Bank under, any of
the terms, conditions or provisions of any note, bond, mortgage, indenture, deed
of trust, license, lease, agreement or other instrument or obligation to which
Wayne or the Bank is a party, or by which either or both of them or any of their
respective properties or assets may be bound or affected except, with respect to
(ii) and (iii) above, such as individually and in the aggregate will not have a
material adverse effect on the business, operations, assets or financial
condition of Wayne and its Subsidiaries on a consolidated basis, and which will
not prevent or delay the consummation of the transactions contemplated hereby.
Except for consents and approvals of or filings or registrations with or notices
to the OCC, the OTS, the Board of Governors of the Federal Reserve System
("FRB"), the Securities and Exchange Commission ("SEC"), applicable state
securities bureaus or commissions, the New Jersey Secretary of State, the
Delaware Secretary of State, and the stockholders of Wayne, no consents or
approvals of or filings or registrations with or notices to any third party or
any public body or authority are necessary on behalf of Wayne or the Bank in
connection with (x) the execution and delivery by Wayne and the Bank of this
Agreement and (y) the consummation by Wayne and the Bank of the transactions
contemplated hereby and (z) the execution and delivery by the Bank of the Bank
Merger Agreement and the consummation by the Bank of the transactions
contemplated thereby.
3.4. Financial Statements.
(a) The Wayne Disclosure Schedule sets forth copies of the
consolidated statements of condition of Wayne as of December 31, 1995, 1996 and
1997, and the related consolidated statements of income, stockholders' equity
and cash flows for the periods ended December 31 in each of the three years 1995
through 1997, in each case accompanied by the audit report of KPMG Peat Marwick,
LLP, independent public accountants with respect to Wayne, and the unaudited
consolidated statements of condition of Wayne as of March 31, 1998 and related
unaudited consolidated statements of income, changes in stockholders' equity and
cash flows for the three months then ended as reported in Wayne's Quarterly
Report on Form 10-Q, filed with the SEC under the Securities and Exchange Act of
1934, as amended (the "1934 Act") (collectively, the "Xxxxx Financial
Statements"). The Xxxxx Financial Statements (including the related notes) have
been prepared in accordance with generally accepted accounting principles
("GAAP") consistently applied during the periods involved, and fairly present
the consolidated financial condition of Wayne as of the respective dates set
forth therein, and the related consolidated statements of income, stockholders'
equity and cash flows fairly present the results of the consolidated operations,
stockholders' equity and cash flows of Wayne for the respective periods set
forth therein.
(b) The books and records of Wayne and its Subsidiaries have
been and are being maintained in material compliance with applicable legal and
accounting requirements, and reflect only actual transactions.
(c) Except as and to the extent reflected, disclosed or
reserved against in the Xxxxx Financial Statements (including the notes
thereto), as of March 31, 1998 neither Wayne nor any of its Subsidiaries had any
material liabilities, whether absolute, accrued, contingent or otherwise
material to the business, operations, assets or financial condition of Wayne or
any of its Subsidiaries. Since March 31, 1998 and to the date hereof, neither
Wayne nor any of its Subsidiaries have incurred any material liabilities except
in the ordinary course of business and consistent with prudent banking practice,
except as specifically contemplated by this Agreement.
3.5. Brokerage Fees; Financial Advisor. Other than Sandler
X'Xxxxx & Partners, L.P. ("Sandler X'Xxxxx"), neither Wayne nor any of its
Subsidiaries nor any of their respective directors or officers has employed any
broker or finder or incurred any liability for any broker's or finder's fees or
commissions in connection with any of the transactions contemplated by this
Agreement. Copies of Wayne's agreements with Sandler X'Xxxxx are set forth in
the Wayne Disclosure Schedule. Sandler X'Xxxxx has delivered to Wayne its
written opinion with respect to the fairness, from a financial point of view, of
the Exchange Ratio to the shareholders of Wayne in the Merger. There are no fees
(other than time charges billed at usual and customary rates) payable to any
consultants, including lawyers and accountants, in connection with this
transaction or which would be triggered by consummation of this transaction or
the termination of the services of such consultants by Wayne or any of its
Subsidiaries other than fees which will be payable by Wayne to Xxxxxxx X'Xxxxx.
3.6. Absence of Certain Changes or Events.
(a) There has not been any material adverse change in the
business, operations, assets or financial condition of Wayne and its
Subsidiaries on a consolidated basis since March 31, 1998 and, except for the
direct or indirect costs of the Merger, to Wayne's knowledge, no facts or
conditions exist which Wayne believes will cause or is likely to cause such a
material adverse change in the future.
(b) Except as set forth in the Xxxxx Disclosure Schedule,
neither Wayne nor any of its Subsidiaries has taken or permitted any of the
actions set forth in Section 5.2 hereof between March 31, 1998 and the date
hereof and Wayne and the Wayne Subsidiaries have conducted their business only
in the ordinary course, consistent with past practice.
3.7. Legal Proceedings. Except as disclosed in the Xxxxx
Disclosure Schedule, neither Wayne nor any of its Subsidiaries is a party to
any, and there are no pending or, to Wayne's knowledge, threatened, legal,
administrative, arbitral or other proceedings, claims, actions or governmental
investigations of any nature against Wayne or any of its Subsidiaries. Except as
disclosed in the Xxxxx Disclosure Schedule, neither Wayne nor any of its
Subsidiaries is a party to any order, judgment or decree entered against Wayne
or any Wayne Subsidiary in any lawsuit or proceeding.
3.8. Taxes and Tax Returns.
(a) To the knowledge of Xxxxx, Xxxxx and each Wayne Subsidiary
have duly filed (and until the Effective Time will so file) all returns,
declarations, reports, information returns and statements ("Returns") required
to be filed by them in respect of any federal, state and local taxes (including
withholding taxes, penalties or other payments required) and each has duly paid
(and until the Effective Time will so pay) all such taxes due and payable, other
than taxes or other charges which are being contested in good faith (and
disclosed to Valley in writing). Xxxxx and each Xxxxx Subsidiary have
established (and until the Effective Time will establish) on their books and
records reserves for the payment of all federal, state and local taxes not yet
due and payable, but incurred in respect of Xxxxx or any Xxxxx Subsidiary
through such date, which reserves are, to the knowledge of Xxxxx, adequate for
such purposes. Except as set forth in the Xxxxx Disclosure Schedule, the federal
income tax returns of Xxxxx and its Subsidiaries have been examined by the
Internal Revenue Service (the "IRS") (or are closed to examination due to the
expiration of the applicable statute of limitations) and no deficiencies were
asserted as a result of such examinations which have not been resolved and paid
in full. Except as set forth in the Xxxxx Disclosure Schedule, the applicable
state income tax returns of Xxxxx and its Subsidiaries have been examined by the
applicable authorities (or are closed to examination due to the expiration of
the statute of limitations) and no deficiencies were asserted as a result of
such examinations which have not been resolved and paid in full. To the
knowledge of Xxxxx, there are no audits or other administrative or court
proceedings presently pending nor any other disputes pending, or claims asserted
for, taxes or assessments upon Xxxxx or any of its Subsidiaries, nor has Xxxxx
or any of its Subsidiaries given any currently outstanding waivers or comparable
consents regarding the application of the statute of limitations with respect to
any taxes or Returns.
(b) Except as set forth in the Xxxxx Disclosure Schedule,
neither Xxxxx nor any of its Subsidiaries (i) has requested any extension of
time within which to file any tax Return which Return has not since been filed,
(ii) is a party to any agreement providing for the allocation or sharing of
taxes, (iii) is required to include in income any adjustment pursuant to Section
481(a) of the Code, by reason of a voluntary change in accounting method
initiated by Xxxxx or any Xxxxx Subsidiary (nor does Xxxxx have any knowledge
that the IRS has proposed any such adjustment or change of accounting method) or
(iv) has filed a consent pursuant to Section 341(f) of the Code or agreed to
have Section 341(f)(2) of the Code apply.
3.9. Employee Benefit Plans.
(a) Except as disclosed in the Xxxxx Disclosure Schedule,
neither Xxxxx nor any of its Subsidiaries maintains or contributes to any
"employee pension benefit plan", within the meaning of Section 3(2)(A) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA") (the
"Xxxxx Pension Plans"), "employee welfare benefit plan", within the meaning of
Section 3(1) of ERISA (the "Xxxxx Welfare Plans"), stock option plan, stock
purchase plan, deferred compensation plan, severance plan, bonus plan,
employment agreement or other similar plan, program or arrangement. Neither
Xxxxx nor any of its Subsidiaries has, since September 2, 1974, contributed to
any "Multiemployer Plan", within the meaning of Sections 3(37) and 4001(a)(3) of
ERISA.
(b) Xxxxx has delivered to Valley in the Xxxxx Disclosure
Schedule a complete and accurate copy of each of the following with respect to
each of the Xxxxx Pension Plans and Xxxxx Welfare Plans: (i) plan document,
summary plan description, and summary of material modifications (if not
available, a detailed description of the foregoing); (ii) trust agreement or
insurance contract, if any; (iii) most recent IRS determination letter, if any;
(iv) most recent actuarial report, if any; and (v) most recent annual report on
Form 5500.
(c) The present value of all accrued benefits both vested and
non-vested under each of the Xxxxx Pension Plans subject to Title IV of ERISA,
based upon the actuarial assumptions used for purposes of the most recent
actuarial valuation prepared by such Xxxxx Pension Plan's actuary, did not
exceed the then current value of the assets of such plans allocable to such
accrued benefits. To the best of Wayne's knowledge, the actuarial assumptions
then utilized for such plans were reasonable and appropriate as of the last
valuation date and reflect then current market conditions.
(d) During the last six years, the Pension Benefit Guaranty
Corporation (the "PBGC") has not asserted any claim for liability against Xxxxx
or any of its Subsidiaries which has not been paid in full.
(e) All premiums (and interest charges and penalties for late
payment, if applicable) due to the PBGC with respect to each Xxxxx Pension Plan
have been paid. All contributions required to be made to each Xxxxx Pension Plan
under the terms thereof, ERISA or other applicable law have been timely made,
and all amounts properly accrued to date as liabilities of Xxxxx and its
Subsidiaries which have not been paid have been properly recorded on the books
of Xxxxx and its Subsidiaries.
(f) Except as disclosed on the Xxxxx Disclosure Schedule, each
of the Xxxxx Pension Plans, the Xxxxx Welfare Plans and each other plan and
arrangement identified on the Xxxxx Disclosure Schedule has been operated in
compliance in all material respects with the provisions of ERISA, the Code, all
regulations, rulings and announcements promulgated or issued thereunder, and all
other applicable governmental laws and regulations. Furthermore, the IRS has
issued a favorable determination letter, which takes into account the Tax Reform
Act of 1986 and subsequent legislation, with respect to each of the Xxxxx
Pension Plans and Xxxxx is not aware of any fact or circumstance which would
disqualify any such plan, that could not be retroactively corrected (in
accordance with the procedures of the IRS).
(g) To the knowledge of Xxxxx, within the past two plan years
no non-exempt prohibited transaction, within the meaning of Section 4975 of the
Code or Section 406 of ERISA, has occurred with respect to any of the Xxxxx
Welfare Plans or Xxxxx Pension Plans.
(h) No Xxxxx Pension Plan or any trust created thereunder has
been terminated, nor have there been any "reportable events", within the meaning
of Section 4034(b) of ERISA, with respect to any of the Xxxxx Pension Plans.
(i) To the knowledge of Xxxxx, no "accumulated funding
deficiency", within the meaning of Section 412 of the Code, has been incurred
with respect to any of the Xxxxx Pension Plans.
(j) There are no pending, or, to the knowledge of Xxxxx,
threatened or anticipated claims (other than routine claims for benefits) by, on
behalf of or against any of the Xxxxx Pension Plans or the Xxxxx Welfare Plans,
any trusts related thereto or any other plan or arrangement identified in the
Xxxxx Disclosure Schedule.
(k) No Xxxxx Pension or Welfare Plan provides medical or death
benefits (whether or not insured) beyond an employee's retirement or other
termination of service, other than (i) coverage mandated by law, or (ii) death
benefits under any Xxxxx Pension Plan.
(l) Except with respect to customary health, life and
disability benefits or as disclosed in the Xxxxx Disclosure Schedule, there are
no unfunded benefits obligations which are not accounted for by reserves shown
on the Xxxxx Financial Statements and established under GAAP, or otherwise noted
on such financial statements.
(m) With respect to each Xxxxx Pension and Welfare Plan that
is funded wholly or partially through an insurance policy, there will be no
liability of Xxxxx or any Xxxxx Subsidiary as of the Effective Time under any
such insurance policy or ancillary agreement with respect to such insurance
policy in the nature of a retroactive rate adjustment, loss sharing arrangement
or other actual or contingent liability arising wholly or partially out of
events occurring prior to the Effective Time.
(n) Except as hereafter agreed to by Valley in writing or as
disclosed on the Xxxxx Disclosure Schedule, the consummation of the transactions
contemplated by this Agreement will not (i) entitle any current or former
employee of Xxxxx or any Xxxxx Subsidiary to severance pay, unemployment
compensation or any similar payment, or (ii) accelerate the time of payment,
accelerate the vesting, or increase the amount, of any compensation or benefits
due to any current employee or former employee under any Xxxxx Pension Plan or
Xxxxx Welfare Plan.
3.10. Reports.
(a) The Xxxxx Disclosure Schedule lists, and as to item (i)
below Xxxxx has previously delivered or made available to Valley a complete copy
of, each (i) final registration statement, prospectus, annual, quarterly or
special report and definitive proxy statement filed by Xxxxx since January 1,
1995 pursuant to the Securities Act of 1933, as amended ("1933 Act"), or the
1934 Act and (ii) communication (other than general advertising materials, press
releases and dividend checks) mailed by Xxxxx to its shareholders as a class
since January 1, 1995.
(b) Since June 1, 1996, (i) Xxxxx has filed all reports that
it was required to file with the SEC under the 1934 Act, and (ii) Xxxxx and the
Bank each has duly filed all material forms, reports and documents which they
were required to file with each agency charged with regulating any aspect of
their business, in each case in form which was correct in all material respects,
and, subject to permission from such regulatory authorities, Xxxxx promptly will
deliver or make available to Valley accurate and complete copies of such
reports. As of their respective dates, each such form, report, or document
referred to in either of clauses (i) or (ii) above, and each final registration
statement, prospectus, annual, quarterly or special report, definitive proxy
statement or communication referred to in either of clauses (i) or (ii) of
paragraph (b) above, complied in all material respects with all applicable
statutes, rules and regulations and did not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading; provided that
information contained in any such document as of a later date shall be deemed to
modify information as of an earlier date. The Xxxxx Disclosure Schedule lists
the dates of all examinations of Xxxxx or the Bank conducted by either the OTS
or the FDIC since January 1, 1995 and the dates of any responses thereto
submitted by Xxxxx or the Bank.
3.11. Xxxxx and Bank Information. The information relating to
Xxxxx and the Bank to be contained in the Proxy Statement/Prospectus (as defined
in Section 5.6(a) hereof) to be delivered to stockholders of Xxxxx in connection
with the solicitation of their approval of this Agreement and the transactions
contemplated hereby, as of the date the Proxy Statement/Prospectus is mailed to
stockholders of Xxxxx, and up to and including the date of the meeting of
stockholders to which such Proxy Statement/Prospectus relates, will not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
3.12. Compliance with Applicable Law.
(a) General. Except as set forth in the Xxxxx Disclosure
Schedule, each of Xxxxx and the Xxxxx Subsidiaries holds all licenses,
franchises, permits and authorizations necessary for the lawful conduct of its
business under and pursuant to each, and has complied with and is not in default
in any respect under any, applicable law, statute, order, rule, regulation,
policy and/or guideline of any federal, state or local governmental authority
relating to Xxxxx or any of its Subsidiaries (other than where such defaults or
non-compliances will not, alone or in the aggregate, result in a material
adverse effect on the business, operations, assets or financial condition of
Xxxxx and its Subsidiaries on a consolidated basis) and Xxxxx has not received
notice of violation of, and does not know of any violations of, any of the
above.
(b) CRA. Without limiting the foregoing, to its knowledge the
Bank has complied in all material respects with the Community Reinvestment Act
("CRA") and Xxxxx has no reason to believe that any person or group would object
to the consummation of this Merger due to the CRA performance of or rating of
the Bank. Except as listed on the Xxxxx Disclosure Schedule to the knowledge of
the Bank, no person or group has adversely commented upon the Bank's CRA
performance.
3.13. Certain Contracts.
(a) Except as disclosed in the Xxxxx Disclosure Schedule under
this Section or Section 3.5, (i) neither Xxxxx nor any Xxxxx Subsidiary is a
party to or bound by any contract or understanding (whether written or oral)
with respect to the employment or termination of any present or former officers,
employees, directors or consultants and (ii) the consummation of the
transactions contemplated by this Agreement will not (either alone or upon the
occurrence of any additional acts or events) result in any payment (whether of
severance pay or otherwise) becoming due from Xxxxx or any Xxxxx Subsidiary to
any officer, employee, director or consultant thereof. The Xxxxx Disclosure
Schedule sets forth true and correct copies of all employment agreements or
termination agreements with officers, employees, directors, or consultants to
which Xxxxx or any Xxxxx Subsidiary is a party.
(b) Except as disclosed in the Xxxxx Disclosure Schedule, (i)
as of the date of this Agreement, neither Xxxxx nor any Xxxxx Subsidiary is a
party to or bound by any commitment, agreement or other instrument which
contemplates the payment by Xxxxx or any Xxxxx Subsidiary of amounts in excess
of $100,000, or which has a term extending beyond November 1, 1998 and cannot be
terminated by Xxxxx or its subsidiary without consent of the other party
thereto, (ii) no commitment, agreement or other instrument to which Xxxxx or any
Xxxxx Subsidiary is a party or by which any of them is bound limits the freedom
of Xxxxx or any Xxxxx Subsidiary to compete in any line of business or with any
person, and (iii) neither Xxxxx nor any Xxxxx Subsidiary is a party to any
collective bargaining agreement.
(c) Except as disclosed in the Xxxxx Disclosure Schedule,
neither Xxxxx nor any Xxxxx Subsidiary nor, to the knowledge of Xxxxx, any other
party thereto, is in default in any material respect under any material lease,
contract, mortgage, promissory note, deed of trust, loan or other commitment or
arrangement.
3.14. Properties and Insurance.
(a) Xxxxx and its Subsidiaries have good, and as to owned real
property marketable, title to all material assets and properties, whether real
or personal, tangible or intangible, reflected in Wayne's consolidated balance
sheet as of March 31, 1998, or owned and acquired subsequent thereto (except to
the extent that such assets and properties have been disposed of for fair value
in the ordinary course of business since March 31, 1998), subject to no
encumbrances, liens, mortgages, security interests or pledges, except (i) those
items that secure liabilities that are reflected in such balance sheet or the
notes thereto or incurred in the ordinary course of business after the date of
such balance sheet, (ii) statutory liens for amounts not yet delinquent or which
are being contested in good faith, (iii) such encumbrances, liens, mortgages,
security interests, pledges and title imperfections that are not in the
aggregate material to the business, operations, assets, and financial condition
of Xxxxx and its Subsidiaries taken as a whole and (iv) with respect to owned
real property, title imperfections noted in title reports delivered to Valley
prior to the date hereof. Xxxxx and its Subsidiaries as lessees have the right
under valid and subsisting leases to occupy, use, possess and control all
property leased by them in all material respects as presently occupied, used,
possessed and controlled by them.
(b) The Xxxxx Disclosure Schedule lists all policies of
insurance covering business operations and all insurable properties and assets
of Xxxxx and its Subsidiaries showing all risks insured against, in each case
under valid, binding and enforceable policies or bonds, with such amounts and
such deductibles as are specified. As of the date hereof, neither Xxxxx nor any
of its Subsidiaries has received any notice of cancellation or notice of a
material amendment of any such insurance policy or bond or is in default under
such policy or bond, no coverage thereunder is being disputed and all material
claims thereunder have been filed in a timely fashion.
3.15. Minute Books. The minute books of Xxxxx and its
Subsidiaries contain records that are accurate in all material respects of all
meetings and other corporate action held of their respective stockholders and
Boards of Directors (including committees of their respective Boards of
Directors).
3.16. Environmental Matters. Except as set forth in the Xxxxx
Disclosure Schedule:
(a) Neither Xxxxx nor any Xxxxx Subsidiary has
received any written notice, citation, claim, assessment, proposed assessment or
demand for abatement alleging that Xxxxx or such Xxxxx Subsidiary (either
directly or as a trustee or fiduciary, or as a successor-in-interest in
connection with the enforcement of remedies to realize the value of properties
serving as collateral for outstanding loans) is responsible for the correction
or cleanup of any condition resulting from the violation of any law, ordinance
or other governmental regulation regarding environmental matters, which
correction or cleanup would be material to the business, operations, assets or
financial condition of Xxxxx and the Xxxxx Subsidiaries taken as a whole. Xxxxx
has no knowledge that any toxic or hazardous substances or materials have been
emitted, generated, disposed of or stored on any real property owned or leased
by Xxxxx or any Xxxxx Subsidiary, as OREO or otherwise, or owned or controlled
by Xxxxx or any Xxxxx Subsidiary as a trustee or fiduciary (collectively,
"Properties"), in any manner that violates or, after the lapse of time may
violate, any presently existing federal, state or local law or regulation
governing or pertaining to such substances and materials.
(b) Xxxxx has no knowledge that any of the Properties
has been operated in any manner in the three years prior to the date of this
Agreement that violated any applicable federal, state or local law or regulation
governing or pertaining to toxic or hazardous substances and materials, the
violation of which would have a material adverse effect on the business,
operations, assets or financial condition of Xxxxx and the Xxxxx Subsidiaries
taken as a whole.
(c) To the knowledge of Xxxxx, there are no
underground storage tanks on, in or under any of the Properties and no
underground storage tanks have been closed or removed from any of the Properties
while the property was owned, operated or controlled by Xxxxx or any Xxxxx
Subsidiary.
3.17. Reserves. As of the date hereof, the reserve for loan
and lease losses in the Xxxxx Financial Statements is adequate based upon past
loan loss experiences and potential losses in the current portfolio to cover all
known or anticipated loan losses.
3.18. No Excess Parachute Payments. Except as disclosed in the
Xxxxx Disclosure Schedule, no officer, director, employee or agent (or former
officer, director, employee or agent) of Xxxxx or any Xxxxx Subsidiary is
entitled now, or will or may be entitled to as a consequence of this Agreement,
the Merger or the Bank Merger, to any payment or benefit from Xxxxx, a Xxxxx
Subsidiary, Valley or VNB which if paid or provided would constitute an "excess
parachute payment", as defined in Section 280G of the Code or regulations
promulgated thereunder.
3.19. Year 2000 Compliance. Xxxxx and the Xxxxx Subsidiaries
have taken all reasonable steps necessary to address the software, accounting
and record keeping issues raised in order for the data processing systems used
in the business conducted by Xxxxx and the Xxxxx Subsidiaries to be
substantially Year 2000 compliant on or before the end of 1999 and, except as
set forth in the Xxxxx Disclosure Schedule, Xxxxx does not expect the future
cost of addressing such issues to be material. Neither Xxxxx nor any Xxxxx
Subsidiary has received a rating of less than satisfactory from any bank
regulatory agency with respect to Year 2000 compliance.
3.20. Agreements with Bank Regulators. Except as disclosed in
the Xxxxx Disclosure Schedule, neither Xxxxx nor any Xxxxx Subsidiary is a party
to any agreement or memorandum of understanding with, or a party to any
commitment letter, board resolution submitted to a regulatory authority or
similar undertaking to, or is subject to any order or directive by, or is a
recipient of any extraordinary supervisory letter from, any court, governmental
authority or other regulatory or administrative agency or commission, domestic
or foreign ("Governmental Entity") which restricts materially the conduct of its
business, or in any manner relates to its capital adequacy, its credit or
reserve policies or its management, except for those the existence of which has
been disclosed in writing to Valley by Xxxxx prior to the date of this
Agreement, nor has Xxxxx been advised by any Governmental Entity that it is
contemplating issuing or requesting (or is considering the appropriateness of
issuing or requesting) any such order, decree, agreement, memorandum of
understanding, extraordinary supervisory letter, commitment letter or similar
submission, except as disclosed in writing to Valley by Xxxxx prior to the date
of this Agreement. Neither Xxxxx nor any Xxxxx Subsidiary is required by Section
32 of the Federal Deposit Insurance Act to give prior notice to a Federal
banking agency of the proposed addition of an individual to its board of
directors or the employment of an individual as a senior executive officer,
except as disclosed in writing to Valley by Xxxxx prior to the date of this
Agreement.
3.21. Disclosure. No representation or warranty contained in
Article III of this Agreement contains any untrue statement of a material fact
or omits to state a material fact necessary to make the statements herein not
misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF VALLEY
References herein to the "Valley Disclosure Schedule" shall
mean all of the disclosure schedules required by this Article IV, dated as of
the date hereof and referenced to the specific sections and subsections of
Article IV of this Agreement, which have been delivered on the date hereof by
Valley to Xxxxx. Valley hereby represents and warrants to Xxxxx as follows:
4.1. Corporate Organization.
(a) Valley is a corporation duly organized and validly
existing and in good standing under the laws of the State of New Jersey. Valley
has the corporate power and authority to own or lease all of its properties and
assets and to carry on its business as it is now being conducted, and is duly
licensed or qualified to do business in each jurisdiction in which the nature of
the business conducted by it or the character or location of the properties and
assets owned or leased by it makes such licensing or qualification necessary,
except where the failure to be so licensed or qualified would not have a
material adverse effect on the business, operations, assets or financial
condition of Valley or its Subsidiaries (defined below). Valley is registered as
a bank holding company under the Bank Holding Company Act of 1956, as amended
("BHCA").
(b) Each of the Subsidiaries of Valley are listed in the
Valley Disclosure Schedule. The term "Subsidiary" when used in this Agreement
with reference to Valley, means any corporation, joint venture, association,
partnership, trust or other entity in which Valley has, directly or indirectly,
at least a 50% interest or acts as a general partner. Each Subsidiary of Valley
is duly organized and validly existing and in good standing under the laws of
the jurisdiction of its incorporation. VNB is a national bank whose deposits are
insured by the Bank Insurance Fund of the FDIC to the fullest extent permitted
by law. Each Subsidiary of Valley has the corporate power and authority to own
or lease all of its properties and assets and to carry on its business as it is
now being conducted and is duly licensed or qualified to do business in each
jurisdiction in which the nature of the business conducted by it or the
character or location of the properties and assets owned or leased by it makes
such licensing or qualification necessary, except where the failure to be so
licensed or qualified would not have a material adverse effect on the business,
operations, assets or financial condition of Valley and its Subsidiaries.
4.2. Capitalization. The authorized capital stock of Valley
consists solely of 98,437,500 shares of Valley Common Stock. As of March 31,
1998, there were 52,763,972 shares of Valley Common Stock issued and outstanding
net of treasury stock, and 295,913 treasury shares. Since March 31, 1998, to and
including the date of this Agreement, no additional shares of Valley Common
Stock have been issued except in connection with exercises of options granted
under the Long-Term Stock Incentive Plan of Valley (the "Valley Option Plan") or
grants of restricted stock under the Valley Option Plan. As of March 31, 1998,
except for: (a) 1,188,547 shares of Valley Common Stock issuable upon exercise
of outstanding stock options and stock appreciation rights granted pursuant to
the Valley Option Plan, and (b) 14,924 shares of Valley Common Stock issuable
upon exercise of outstanding stock options granted to a consultant for Valley,
there were no shares of Valley Common Stock issuable upon the exercise of
outstanding stock options or otherwise. All issued and outstanding shares of
Valley Common Stock, and all issued and outstanding shares of capital stock of
Valley's Subsidiaries, have been duly authorized and validly issued, are fully
paid, nonassessable and free of preemptive rights, and are free and clear of all
liens, encumbrances, charges, restrictions or rights of third parties. All of
the outstanding shares of capital stock of Valley's Subsidiaries are owned by
Valley free and clear of any liens, encumbrances, charges, restrictions or
rights of third parties. Except for the options and stock appreciation rights
referred to above under the Valley Option Plan, neither Valley nor any of
Valley's Subsidiaries has or is bound by any outstanding subscriptions, options,
warrants, calls, commitments or agreements of any character calling for the
transfer, purchase or issuance of any shares of capital stock of Valley or
Valley's Subsidiaries or any securities representing the right to otherwise
receive any shares of such capital stock or any securities convertible into or
representing the right to purchase or subscribe for any such shares, and there
are no agreements or understandings with respect to voting of any such shares.
4.3. Authority; No Violation.
(a) Valley and VNB have full corporate power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby in accordance with the terms hereof. Valley has a sufficient
number of authorized but unissued shares of Valley Common Stock to pay the
consideration for the Merger set forth in Article II of this Agreement. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly approved by the
Board of Directors of each of Valley and VNB. The execution and delivery of the
Bank Merger Agreement has been duly and validly approved by the Board of
Directors of VNB. No other corporate proceedings on the part of Valley and VNB
are necessary to consummate the transactions contemplated hereby (except for the
approval by Valley of the Bank Merger Agreement). This Agreement has been duly
and validly executed and delivered by Valley and VNB and constitutes a valid and
binding obligation of Valley and VNB, enforceable against Valley and VNB in
accordance with its terms.
(b) Neither the execution or delivery of this Agreement nor
the consummation by Valley and VNB of the transactions contemplated hereby in
accordance with the terms hereof, will (i) violate any provision of the
Certificate of Incorporation or Bylaws of Valley or the Articles of Association
or Bylaws of VNB, (ii) assuming that the consents and approvals set forth below
are duly obtained, violate any statute, code, ordinance, rule, regulation,
judgment, order, writ, decree or injunction applicable to Valley or VNB or any
of their respective properties or assets, or (iii) violate, conflict with,
result in a breach of any provision of, constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default) under, result
in the termination of, accelerate the performance required by, or result in the
creation of any lien, security interest, charge or other encumbrance upon any of
the properties or assets of Valley or VNB under, any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, deed of trust, license,
lease, agreement or other instrument or obligation to which Valley or VNB is a
party, or by which Valley or VNB or any of their properties or assets may be
bound or affected, except, with respect to (ii) and (iii) above, such as in the
aggregate will not have a material adverse effect on the business, operations,
assets or financial condition of Valley and Valley's Subsidiaries on a
consolidated basis, or the ability of Valley and VNB to consummate the
transactions contemplated hereby. Except for consents and approvals of or
filings or registrations with or notices to the OCC, the OTS, the FRB, the New
Jersey Secretary of State, the Delaware Secretary of State, the SEC, or
applicable state securities bureaus or commissions, no consents or approvals of
or filings or registrations with or notices to any third party or any public
body or authority are necessary on behalf of Valley or VNB in connection with
(a) the execution and delivery by Valley or VNB of this Agreement, (b) the
consummation by Valley of the Merger and the other transactions contemplated
hereby and (c) the execution and delivery by VNB of the Bank Merger Agreement
and the consummation by VNB of the Bank Merger and other transactions
contemplated thereby. To Valley's knowledge, no fact or condition exists which
Valley has reason to believe will prevent it or VNB from obtaining the
aforementioned consents and approvals.
4.4. Financial Statements.
(a) Valley has previously delivered to Xxxxx copies of the
consolidated statements of financial condition of Valley as of December 31,
1995, 1996 and 1997, the related consolidated statements of income, changes in
stockholders' equity and of cash flows for the periods ended December 31 in each
of the three fiscal years 1995 through 1997, in each case accompanied by the
audit report of KPMG Peat Marwick LLP, independent public accountants with
respect to Valley, and the unaudited consolidated statements of condition of
Valley as of March 31, 1998 and the related unaudited consolidated statements of
income, changes in stockholders' equity and cash flows for the three months then
ended as reported in Valley's Quarterly Report on Form 10-Q, filed with the SEC
under the 1934 Act (collectively, the "Valley Financial Statements"). The Valley
Financial Statements (including the related notes), have been prepared in
accordance with GAAP consistently applied during the periods involved, and
fairly present the consolidated financial position of Valley as of the
respective dates set forth therein, and the related consolidated statements of
income, changes in stockholders' equity and of cash flows (including the related
notes, where applicable) fairly present the results of the consolidated
operations and changes in stockholders' equity and of cash flows of Valley for
the respective fiscal periods set forth therein.
(b) The books and records of Valley and its subsidiaries have
been and are being maintained in material compliance with applicable legal and
accounting requirements, and reflect only actual transactions.
(c) Except as and to the extent reflected, disclosed or
reserved against in the Valley Financial Statements (including the notes
thereto), as of March 31, 1998 neither Valley nor any of its Subsidiaries had or
has, as the case may be, any material obligation or liability, whether absolute,
accrued, contingent or otherwise, material to the business, operations, assets
or financial condition of Valley or any of its Subsidiaries. Since March 31,
1998, neither Valley nor any of its Subsidiaries have incurred any material
liabilities, except in the ordinary course of business and consistent with
prudent banking practice.
4.5. Brokerage Fees. Except for fees to be paid to MG
Advisors, Inc., neither Valley nor VNB nor any of their respective directors or
officers has employed any broker or finder or incurred any liability for any
broker's or finder's fees or commissions in connection with any of the
transactions contemplated by this Agreement.
4.6. Absence of Certain Changes or Events. There has not been
any material adverse change in the business, operations, assets or financial
condition of Valley and Valley's Subsidiaries on a consolidated basis since
March 31, 1998 and to Valley's knowledge, no fact or condition exists which
Valley believes will cause or is likely to cause such a material adverse change
in the future.
4.7. Valley Information. The information relating to Valley
and its subsidiaries, this Agreement and the transactions contemplated hereby in
the Registration Statement and Proxy Statement/Prospectus (as defined in Section
5.6(a) hereof), as of the date of the mailing of the Proxy Statement/Prospectus,
and up to and including the date of the meeting of stockholders of Xxxxx to
which such Proxy Statement/Prospectus relates, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
4.8. Capital Adequacy. As of the date of this Agreement Valley
has, and at the Effective Time, after taking into effect the Merger and the
transactions contemplated hereunder, Valley will have, sufficient capital to
satisfy all applicable regulatory capital requirements.
4.9. Valley Common Stock. At the Effective Time, the Valley
Common Stock to be issued pursuant to the terms of Section 2.1, when so issued,
shall be duly authorized, validly issued, fully paid, and non-assessable, free
of preemptive rights and free and clear of all liens, encumbrances or
restrictions created by or through Valley, with no personal liability attaching
to the ownership thereof.
4.10. Legal Proceedings. Except as disclosed in the Valley
Disclosure Schedule, neither Valley nor its Subsidiaries is a party to any, and
there are no pending or, to Valley's knowledge, threatened, legal,
administrative, arbitral or other proceedings, claims, actions or governmental
investigations of any nature against Valley or any of its Subsidiaries which, if
decided adversely to Valley, or any of its Subsidiaries, would have a material
adverse effect on the business, operations, assets or financial condition of
Valley and its Subsidiaries on a consolidated basis. Except as disclosed in the
Valley Disclosure Schedule, neither Valley nor any of Valley's Subsidiaries is a
party to any order, judgment or decree entered against Valley or any such
Subsidiary in any lawsuit or proceeding which would have a material adverse
effect on the business, operations, assets or financial condition of Valley and
its Subsidiaries on a consolidated basis.
4.11. Taxes and Tax Returns. To the knowledge of Valley,
Valley and its Subsidiaries have duly filed (and until the Effective Time will
so file) all Returns required to be filed by them in respect of any federal,
state and local taxes (including withholding taxes, penalties or other payments
required) and have duly paid (and until the Effective Time will so pay) all such
taxes due and payable, other than taxes or other charges which are being
contested in good faith. Valley and its Subsidiaries have established (and until
the Effective Time will establish) on their books and records reserves for the
payment of all federal, state and local taxes not yet due and payable, but
incurred in respect of Valley and its Subsidiaries through such date, which
reserves are, to the knowledge of Valley, adequate for such purposes. No
deficiencies exist or have been asserted based upon the federal income tax
returns of Valley and VNB.
4.12. Employee Benefit Plans.
(a) Valley and its Subsidiaries maintain or contribute to
certain "employee pension benefit plans" (the "Valley Pension Plans"), as such
term is defined in Section 3 of ERISA, and "employee welfare benefit plans" (the
"Valley Welfare Plans"), as such term is defined in Section 3 of ERISA. Since
September 2, 1974, neither Valley nor its Subsidiaries have contributed to any
"Multiemployer Plan", as such term is defined in Section 3(37) of ERISA.
(b) Except as set forth in Valley Disclosure Schedule, to the
knowledge of Valley, each of the Valley Pension Plans and each of the Valley
Welfare Plans has been operated in compliance in all material respects with the
provisions of ERISA, the Code, all regulations, rulings and announcements
promulgated or issued thereunder, and all other applicable governmental laws and
regulations.
(c) To the knowledge of Valley, no "accumulated funding
deficiency" within the meaning of Section 412 of the Code has been incurred with
respect to any of the Valley Pension Plans.
(d) Except with respect to customary health, life and
disability benefits or as disclosed on the Valley Disclosure Schedule, there are
no unfunded benefit obligations which are not accounted for by reserves shown on
the financial statements of Valley and established under GAAP or otherwise noted
on such financial statements.
4.13. Reports.
(a) Each communication mailed by Valley to its stockholders
since January 1, 1995, and each annual, quarterly or special report, proxy
statement or communication, as of its date, complied in all material respects
with all applicable statutes, rules and regulations enforced or promulgated by
the applicable regulatory agency and did not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading; provided that
disclosures as of a later date shall be deemed to modify disclosures as of an
earlier date.
(b) Valley and VNB have, since January 1, 1995, duly filed
with the OCC and the FRB in correct form in all material respects the monthly,
quarterly and annual reports required to be filed under applicable laws and
regulations, and Valley, upon written request from Xxxxx, promptly will deliver
or make available to Xxxxx accurate and complete copies of such reports. The
Valley Disclosure Schedule lists the dates of all examinations of Valley or VNB
conducted by either the OCC, the FRB or the FDIC since January 1, 1995.
4.14. Compliance with Applicable Law. Valley and its
Subsidiaries hold all material licenses, franchises, permits and authorizations
necessary for the lawful conduct of their respective businesses under and
pursuant to each, and has complied with and is not in default in any respect
under any, applicable law, statute, order, rule, regulation, policy and/or
guideline of any federal, state or local governmental authority relating to
Valley and its Subsidiaries (other than where such default or non-compliance
will not result in a material adverse effect on the business, operations, assets
or financial condition of Valley and its Subsidiaries on a consolidated basis)
and Valley has not received notice of violations of, and does not know of any
violations of, any of the above. Without limiting the foregoing, to its
knowledge VNB has complied in all material respects with the CRA and Valley has
no reason to believe that any person or group would object to the consummation
of the Merger due to the CRA performance or rating of VNB. To the knowledge of
Valley, except as listed on the Valley Disclosure Schedule, no person or group
has adversely commented upon VNB's CRA performance.
4.15. Properties and Insurance.
(a) Valley and its Subsidiaries have good and, as to owned
real property, marketable title to all material assets and properties, whether
real or personal, tangible or intangible, reflected in Valley's consolidated
balance sheet as of March 31, 1998, or owned and acquired subsequent thereto
(except to the extent that such assets and properties have been disposed of for
fair value in the ordinary course of business since March 31, 1998), subject to
no encumbrances, liens, mortgages, security interests or pledges, except (i)
those items that secure liabilities that are reflected in such balance sheet or
the notes thereto or incurred in the ordinary course of business after the date
of such balance sheet, (ii) statutory liens for amounts not yet delinquent or
which are being contested in good faith, (iii) such encumbrances, liens,
mortgages, security interests, pledges and title imperfections that are not in
the aggregate material to the business, operations, assets, and financial
condition of Valley and its subsidiaries taken as a whole and (iv) with respect
to owned real property, title imperfections noted in title reports delivered to
Xxxxx prior to the date hereof. Valley and its Subsidiaries as lessees have the
right under valid and subsisting leases to occupy, use, possess and control all
property leased by them in all material respects as presently occupied, used,
possessed and controlled by them.
(b) The business operations and all insurable properties and
assets of Valley and its Subsidiaries are insured for their benefit against all
risks which, in the reasonable judgment of the management of Valley should be
insured against, in each case under valid, binding and enforceable policies or
bonds, with such deductibles and against such risks and losses as are in the
opinion of the management of Valley adequate for the business engaged in by
Valley and its Subsidiaries. As of the date hereof, neither Valley nor any of
its Subsidiaries has received any notice of cancellation or notice of a material
amendment of any such insurance policy or bond or is in default under such
policy or bond, no coverage thereunder is being disputed and all material claims
thereunder have been filed in a timely fashion.
4.16. Minute Books. The minute books of Valley and its
Subsidiaries contain records that are accurate in all material respects of all
meetings and other corporate action held of their respective stockholders and
Boards of Directors (including committees of their respective Boards of
Directors).
4.17. Environmental Matters. Except as disclosed in the Valley
Disclosure Schedule, neither Valley nor any of its Subsidiaries has received any
written notice, citation, claim, assessment, proposed assessment or demand for
abatement alleging that Valley or any of its Subsidiaries (either directly or as
a successor-in-interest in connection with the enforcement of remedies to
realize the value of properties serving as collateral for outstanding loans) is
responsible for the correction or clean-up of any condition material to the
business, operations, assets or financial condition of Valley or its
Subsidiaries. Except as disclosed in the Valley Disclosure Schedule, Valley has
no knowledge that any toxic or hazardous substances or materials have been
emitted, generated, disposed of or stored on any property owned or leased by
Valley or any of its Subsidiaries in any manner that violates or, after the
lapse of time may violate, any presently existing federal, state or local law or
regulation governing or pertaining to such substances and materials, the
violation of which would have a material adverse effect on the business,
operations, assets or financial condition of Valley and its Subsidiaries on a
consolidated basis.
4.18. Reserves. As of the date hereof, the reserve for loan
and lease losses in the Valley Financial Statements is, to Valley's knowledge,
adequate based upon past loan loss experiences and potential losses in the
current portfolio to cover all known or anticipated loan losses.
4.19. Year 2000 Compliance. Valley and the Valley Subsidiaries
have taken all reasonable steps necessary to address the software, accounting
and record keeping issues raised in order for the data processing systems used
in the business conducted by Valley and the Valley Subsidiaries to be
substantially Year 2000 compliant on or before the end of 1999 and Valley does
not expect the future cost of addressing such issues to be material. Neither
Valley nor any Valley Subsidiary has received a rating of less than satisfactory
from any bank regulatory agency with respect to Year 2000 compliance.
4.20. Disclosures. No representation or warranty contained in
Article IV of this Agreement contains any untrue statement of a material fact or
omits to state a material fact necessary to make the statements herein not
misleading.
ARTICLE V
COVENANTS OF THE PARTIES
5.1. Conduct of the Business of Xxxxx. During the period from
the date of this Agreement to the Effective Time, Xxxxx shall, and shall cause
each of its Subsidiaries to, conduct its respective business and engage in
transactions permitted hereunder only in the ordinary course and consistent with
prudent banking practice, except with the prior written consent of Valley, which
consent will not be unreasonably withheld. Xxxxx also shall use its best efforts
to (i) preserve its business organization and that of each Xxxxx Subsidiary
intact, (ii) keep available to itself the present services of its employees and
those of its Subsidiaries, provided that neither Xxxxx nor any of its
Subsidiaries shall be required to take any unreasonable or extraordinary act or
any action which would conflict with any other term of this Agreement, and (iii)
preserve for itself and Valley the goodwill of its customers and those of its
Subsidiaries and others with whom business relationships exist.
5.2. Negative Covenants and Dividend Covenants.
(a) Xxxxx agrees that from the date hereof to the Effective
Time, except as set forth in Section 5.2 of the Valley Disclosure Schedule or as
otherwise approved by Valley in writing or as permitted or required by this
Agreement, it will not, nor will it permit any of its Subsidiaries to:
(i) change any provision of its Certificate of Incorporation
or Charter, as the case may be, or Bylaws or any similar governing documents;
(ii) except for the issuance of Xxxxx Common Stock pursuant to
the present terms of the outstanding Xxxxx Options and the Valley Stock Option
and as disclosed in the Xxxxx Disclosure Schedule, change the number of shares
of its authorized or issued common or preferred stock or issue or grant any
option, warrant, call, commitment, subscription, right to purchase or agreement
of any character relating to the authorized or issued capital stock of Xxxxx or
any Xxxxx Subsidiary or any securities convertible into shares of such stock, or
split, combine or reclassify any shares of its capital stock, or redeem or
otherwise acquire any shares of such capital stock, or declare, set aside or pay
any dividend, or other distribution (whether in cash, stock or property or any
combination thereof) in respect of its capital stock;
(iii) grant any severance or termination pay (other than
pursuant to policies of Xxxxx in effect on the date hereof and disclosed in the
Xxxxx Disclosure Schedule or as agreed to by Valley in writing) to, or enter
into or amend any employment agreement with, any of its directors, officers or
employees, adopt any new employee benefit plan or arrangement of any type or
amend any such existing benefit plan or arrangement; or award any increase in
compensation or benefits to its directors, officers or employees;
(iv) sell or dispose of any substantial amount of assets or
incur any significant liabilities other than in the ordinary course of business
consistent with past practices and policies;
(v) make any capital expenditures in excess of $100,000 other
than pursuant to binding commitments existing on the date hereof and
expenditures necessary to maintain existing assets in good repair and
expenditures described in business plans or budgets previously furnished to
Valley;
(vi) file any applications or make any contract with respect
to branching or site location or relocation.
(vii) agree to acquire in any manner whatsoever (other than to
foreclose on collateral for a defaulted loan) any business or entity;
(viii) make any material change in its accounting methods or
practices, other than changes required in accordance with GAAP;
(ix) take any action that would result in any of the
representations and warranties contained in Article III of this Agreement not
being true and correct in any material respect at the Effective Time; or
(x) agree to do any of the foregoing.
(b) Valley agrees that from the date hereof to the Effective
Time, except as otherwise approved by Xxxxx in writing or as permitted or
required by this Agreement, it will not, nor will it permit any of its
Subsidiaries to:
(i) take any action that is intended or may reasonably be
expected to result in any of its representations and warranties set forth in
this Agreement being or becoming untrue in any material respect, or that may
result in any condition, agreement or covenant set forth in this Agreement not
being satisfied;
(ii) take or cause to be taken any action which would
disqualify the Merger as a tax free reorganization under Section 368 of the Code
or as a pooling of interests for accounting purposes;
(iii) consolidate with or merge with any other person or
entity in which Valley is not the surviving entity, or convey, transfer or lease
its properties and assets substantially as an entirety to any person or entity
unless such person or entity shall expressly assume the obligations of Valley
under this Agreement; or
(iv) authorize or enter into any agreement or commitment to do
any of the foregoing.
5.3. No Solicitation. So long as this Agreement remains in
effect, Xxxxx and the Bank shall not, directly or indirectly, encourage or
solicit or hold discussions or negotiations with, or provide any information to,
any person, entity or group (other than Valley) concerning any merger or sale of
shares of capital stock or sale of substantial assets or liabilities not in the
ordinary course of business, or similar transactions involving Xxxxx or the Bank
(an "Acquisition Transaction"). Notwithstanding the foregoing, Xxxxx may enter
into discussions or negotiations or provide information in connection with an
unsolicited possible Acquisition Transaction if the Board of Directors of Xxxxx,
after consulting with counsel, determines in the exercise of its fiduciary
responsibilities that such discussions or negotiations should be commenced or
such information should be furnished. Xxxxx shall promptly communicate to Valley
the terms of any proposal, whether written or oral, which it may receive in
respect of any such Acquisition Transaction and the fact that it is having
discussions or negotiations with a third party about an Acquisition Transaction.
5.4. Current Information. During the period from the date of
this Agreement to the Effective Time, Xxxxx will cause one or more of its
designated representatives to confer on a monthly or more frequent basis with
representatives of Valley regarding Wayne's business, operations, properties,
assets and financial condition and matters relating to the completion of the
transactions contemplated herein. Without limiting the foregoing, Xxxxx will
send to Valley a monthly list of each new loan or extension of credit, and each
renewal of an existing loan or extension of credit, in excess of $100,000, made
during such month, and provide Valley with a copy of the loan offering for any
such loan, extension of credit, or renewal upon request. As soon as reasonably
available, but in no event more than 45 days after the end of each fiscal
quarter (other than the last fiscal quarter of each fiscal year) ending after
the date of this Agreement, Xxxxx will deliver to Valley the Bank's call reports
filed with the OTS and FDIC and Wayne's quarterly reports on Form 10-Q as filed
with the SEC under the 1934 Act, and Valley will deliver to Xxxxx Valley's
quarterly reports on Form 10-Q, as filed with the SEC under the 1934 Act, and
VNB's call reports filed with the OCC and the FDIC. As soon as reasonably
available, but in no event more than 80 days after the end of each fiscal year,
Xxxxx will deliver to Valley and Valley will deliver to Xxxxx their respective
audited Annual Reports, in each case as filed on Form 10-K with the SEC under
the 1934 Act.
5.5. Access to Properties and Records; Confidentiality.
(a) Xxxxx and the Bank shall permit Valley and its
representatives, and Valley and VNB shall permit Xxxxx and its representatives,
accompanied by an officer of the respective party, reasonable access to their
respective properties, and shall disclose and make available to Valley and its
representatives or Xxxxx and its representatives as the case may be, all books,
papers and records relating to their respective assets, stock ownership,
properties, operations, obligations and liabilities, including, but not limited
to, all books of account (including the general ledger), tax records, minute
books of directors' and stockholders' meetings, organizational documents,
bylaws, material contracts and agreements, filings with any regulatory
authority, independent auditors' work papers (subject to the receipt by such
auditors of a standard access representation letter), litigation files, plans
affecting employees, and any other business activities or prospects in which
Valley and its representatives or Xxxxx and its representatives may have a
reasonable interest. Neither party shall be required to provide access to or to
disclose information where such access or disclosure would violate or prejudice
the rights of any customer or would contravene any law, rule, regulation, order
or judgment. The parties will use their best efforts to obtain waivers of any
such restriction and in any event make appropriate substitute disclosure
arrangements under circumstances in which the restrictions of the preceding
sentence apply. Xxxxx acknowledges that Valley may be involved in discussions
concerning other potential acquisitions and Valley shall not be obligated to
disclose such information to Xxxxx except as such information is publicly
disclosed by Valley.
(b) All information furnished by the parties hereto previously
in connection with transactions contemplated by this Agreement or pursuant
hereto shall be used solely for the purpose of evaluating the Merger
contemplated hereby and shall be treated as the sole property of the party
delivering the information until consummation of the Merger contemplated hereby
and, if such Merger shall not occur, each party and each party's advisors shall
return to the other party all documents or other materials containing,
reflecting or referring to such information, will not retain any copies of such
information, shall use its best efforts to keep confidential all such
information, and shall not directly or indirectly use such information for any
competitive or other commercial purposes. In the event that the Merger
contemplated hereby is abandoned, all documents, notes and other writings
prepared by a party hereto or its advisors based on information furnished by the
other party shall be promptly destroyed. The obligation to keep such information
confidential shall continue for five years from the date the proposed Merger is
abandoned but shall not apply to (i) any information which (A) the party
receiving the information can establish by convincing evidence was already in
its possession prior to the disclosure thereof to it by the other party; (B) was
then generally known to the public; (C) became known to the public through no
fault of the party receiving such information; or (D) was disclosed to the party
receiving such information by a third party not bound by an obligation of
confidentiality; or (ii) disclosures pursuant to a legal requirement or in
accordance with an order of a court of competent jurisdiction.
(c) Without limiting the rights provided under Section 5.5(a),
each of Valley and Xxxxx shall have the right to conduct a full and complete
acquisition audit and to perform such due diligence as it deems appropriate,
using its own officers and employees or third parties, for purposes of
determining whether there is a material breach of any representation or warranty
hereunder or a material adverse change in the business or financial condition of
the other party. Such acquisition audit or due diligence shall not be limited or
restricted by virtue of any audit or due diligence performed before the date
hereof or for any other reason, but shall not unduly interfere with the business
of the other party.
5.6. Regulatory Matters.
(a) For the purposes of holding the meeting of Xxxxx
stockholders referred to in Section 5.7 hereof and registering or otherwise
qualifying under applicable federal and state securities laws Valley Common
Stock to be issued to Record Holders and Optionees in connection with the
Merger, the parties hereto shall cooperate in the preparation and filing by
Valley of a Registration Statement with the SEC which shall include an
appropriate proxy statement and prospectus satisfying all applicable
requirements of applicable state and federal laws, including the Securities Act
of 1933, as amended (the "1933 Act"), the 1934 Act and applicable state
securities laws and the rules and regulations thereunder. (Such proxy statement
and prospectus in the form mailed by Xxxxx to the Xxxxx stockholders and
Optionees together with any and all amendments or supplements thereto, is herein
referred to as the "Proxy Statement/Prospectus" and the various documents to be
filed by Valley under the 1933 Act with the SEC to register for sale the Valley
Common Stock to be issued to Record Holders and Optionees, including the Proxy
Statement/Prospectus, are referred to herein as the "Registration Statement").
(b) Valley shall furnish information concerning Valley as is
necessary in order to cause the Proxy Statement/Prospectus, insofar as it
relates to Valley, to comply with Section 5.6(a) hereof. Valley agrees promptly
to advise Xxxxx if at any time prior to the Xxxxx stockholder meeting referred
to in Section 5.7 hereof, any information provided by Valley in the Proxy
Statement/Prospectus becomes incorrect or incomplete in any material respect and
to provide Xxxxx with the information needed to correct such inaccuracy or
omission. Valley shall xxxxxxx Xxxxx with such supplemental information as may
be necessary in order to cause the Proxy Statement/Prospectus, insofar as it
relates to Valley, to comply with Section 5.6(a) after the mailing thereof to
Xxxxx stockholders.
(c) Xxxxx shall furnish Valley with such information
concerning Xxxxx and the Bank as is necessary in order to cause the Proxy
Statement/Prospectus, insofar as it relates to such corporations, to comply with
Section 5.6(a) hereof. Xxxxx agrees promptly to advise Valley if, at any time
prior to the Xxxxx stockholder's meeting referred to in Section 5.6(a) hereof,
information provided by Xxxxx in the Proxy Statement/Prospectus becomes
incorrect or incomplete in any material respect and to provide Valley with the
information needed to correct such inaccuracy or omission. Xxxxx shall furnish
Valley with such supplemental information as may be necessary in order to cause
the Proxy Statement/Prospectus, insofar as it relates to Xxxxx and the Bank, to
comply with Section 5.6(a) after the mailing thereof to Xxxxx stockholders.
(d) Valley shall as promptly as practicable, at its sole
expense, make such filings as are necessary in connection with the offering of
the Valley Common Stock with applicable state securities agencies and shall use
all reasonable efforts to qualify the offering of the Valley Common Stock under
applicable state securities laws at the earliest practicable date. Xxxxx shall
promptly furnish Valley with such information regarding the Xxxxx stockholders
as Valley requires to enable it to determine what filings are required
hereunder. Xxxxx authorizes Valley to utilize in such filings the information
concerning Xxxxx and the Bank provided to Valley in connection with, or
contained in, the Proxy Statement/Prospectus. Valley shall xxxxxxx Xxxxx with
copies of all such filings and keep Xxxxx advised of the status thereof. Valley
and Xxxxx shall as promptly as practicable file the Registration Statement
containing the Proxy Statement/Prospectus with the SEC, and each of Valley and
Xxxxx shall promptly notify the other of all communications, oral or written,
with the SEC concerning the Registration Statement and the Proxy
Statement/Prospectus.
(e) Valley shall cause the Valley Common Stock to be issued in
connection with the Merger to be listed on the New York Stock Exchange.
(f) The parties hereto will cooperate with each other and use
their best efforts to prepare all necessary documentation, to effect all
necessary filings and to obtain all necessary permits, consents, waivers,
approvals and authorizations of all third parties and governmental bodies
necessary to consummate the transactions contemplated by this Agreement as soon
as possible, including, without limitation, those required by the OCC, the OTS,
the FDIC and the FRB. The parties shall each have the right to review in advance
(and shall do so promptly) all information relating to the other, as the case
may be, and any of their respective subsidiaries, which appears in any filing
made with, or written material submitted to, any third party or governmental
body in connection with the transactions contemplated by this Agreement. The
parties hereto shall use reasonable business efforts to file for approval or
waiver by the appropriate bank regulatory agencies within 60 days of the date
hereof.
(g) Each of the parties will promptly furnish each other with
copies of written communications received by them or any of their respective
subsidiaries from, or delivered by any of the foregoing to, any governmental
body in respect of the transactions contemplated hereby.
(h) Xxxxx acknowledges that Valley is in or may be in the
process of acquiring other banks and financial institutions and that in
connection with such acquisitions, information concerning Xxxxx may be required
to be included in the registration statements, if any, for the sale of
securities of Valley or in SEC reports in connection with such acquisitions.
Xxxxx agrees to provide Valley with any information, certificates, documents or
other materials about Xxxxx as are reasonably necessary to be included in such
other SEC reports or registration statements, including registration statements
which may be filed by Valley prior to the Effective Time. Xxxxx shall use its
reasonable efforts to cause its attorneys and accountants to provide Valley and
any underwriters for Valley with any consents, comfort letters, opinion letters,
reports or information which are necessary to complete the registration
statements and applications for any such acquisition or issuance of securities.
Valley shall reimburse Xxxxx for reasonable expenses thus incurred by Xxxxx
should this transaction be terminated for any reason. Valley shall not file with
the SEC any registration statement or amendment thereto or supplement thereof
containing information regarding Xxxxx unless Xxxxx shall have consented in
writing to such filing, which consent shall not be unreasonably delayed or
withheld.
(i) Between the date of this Agreement and the Effective Time,
Xxxxx shall cooperate with Valley to reasonably conform Wayne's policies and
procedures regarding applicable regulatory matters, to those of Valley as Valley
may reasonably identify to Xxxxx from time to time.
5.7. Approval of Stockholders. Xxxxx will (a) take all steps
necessary duly to call, give notice of, convene and hold a meeting of the
stockholders of Xxxxx as soon as reasonably practicable for the purpose of
securing the approval by such stockholders of this Agreement, (b) recommend to
the stockholders of Xxxxx the approval of this Agreement and the transactions
contemplated hereby and use its best efforts to obtain, as promptly as
practicable, such approvals, and (c) cooperate and consult with Valley with
respect to each of the foregoing matters. In connection therewith, Xxxxx will
use reasonable efforts to cause each director of Xxxxx to agree, (i) to vote in
favor of the Merger, and (ii) take such action as is necessary or is reasonably
required by Valley to consummate the Merger.
5.8. Further Assurances. Subject to the terms and conditions
herein provided, each of the parties hereto agrees to use its best efforts to
take, or cause to be taken, all actions and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
satisfy the conditions to Closing and to consummate and make effective the
transactions contemplated by this Agreement, including, without limitation,
using reasonable efforts to lift or rescind any injunction or restraining order
or other order adversely affecting the ability of the parties to consummate the
transactions contemplated by this Agreement and using its best efforts to
prevent the breach of any representation, warranty, covenant or agreement of
such party contained or referred to in this Agreement and to promptly remedy the
same. Valley will take the necessary actions to cure appropriate tainted
treasury shares so that the Merger meets the treasury stock condition for
pooling-of-interests accounting. Nothing in this section shall be construed to
require any party to participate in any threatened or actual legal,
administrative or other proceedings (other than proceedings, actions or
investigations to which it is otherwise a party or subject or threatened to be
made a party or subject) in connection with consummation of the transactions
contemplated by this Agreement unless such party shall consent in advance and in
writing to such participation and the other party agrees to reimburse and
indemnify such party for and against any and all costs and damages related
thereto.
5.9. Public Announcements. The parties hereto shall cooperate
with each other in the development and distribution of all news releases and
other public disclosures with respect to this Agreement or any of the
transactions contemplated hereby, except as may be otherwise required by law or
regulation or as to which the party releasing such information has used its best
efforts to discuss with the other party in advance.
5.10. Failure to Fulfill Conditions. In the event that Valley
or Xxxxx determines that a material condition to its obligation to consummate
the transactions contemplated hereby cannot be fulfilled on or prior to March
31, 1999 (the "Cutoff Date") and that it will not waive that condition, it will
promptly notify the other party. Except for any acquisition or merger
discussions Valley may enter into with other parties, Xxxxx and Valley will
promptly inform the other of any facts applicable to Xxxxx or Valley,
respectively, or their respective directors or officers, that would be likely to
prevent or materially delay approval of the Merger by any governmental authority
or which would otherwise prevent or materially delay completion of the Merger.
5.11. Disclosure Supplements. From time to time prior to the
Effective Time, each party hereto will promptly supplement or amend (by written
notice to the other) its respective Disclosure Schedules delivered pursuant
hereto with respect to any matter hereafter arising which, if existing,
occurring or known at the date of this Agreement, would have been required to be
set forth or described in such Schedules or which is necessary to correct any
information in such Schedules which has been rendered materially inaccurate
thereby. For the purpose of determining satisfaction of the conditions set forth
in Article VI, no supplement or amendment to such Schedules shall correct or
cure any warranty which was untrue when made, but supplements or amendments may
be used to disclose subsequent facts or events to maintain the truthfulness of
any warranty.
5.12 Transaction Expenses of Xxxxx.
(a) For planning purposes, Xxxxx shall, within 30 days from
the date hereof, provide Valley with its estimated budget of transaction-related
expenses reasonably anticipated to be payable by Xxxxx in connection with this
transaction based on facts and circumstances currently known, including the fees
and expenses of counsel, accountants, investment bankers and other
professionals. Xxxxx shall promptly notify Valley if or when it determines that
it will expect to exceed its budget. Xxxxx has previously disclosed to Valley
the method by which the fees of its investment bankers and counsel in connection
with this transaction are to be determined, and has disclosed to Valley the fees
of its counsel in connection with this transaction through a recent date.
(b) Promptly, but in any event within 30 days, after the
execution of this Agreement, Xxxxx shall ask all of its attorneys and other
professionals to render current and correct invoices for all unbilled time and
disbursements. Xxxxx shall accrue and/or pay all of such amounts as soon as
possible.
(c) Xxxxx shall cause its professionals to render monthly
invoices within 30 days after the end of each month. Xxxxx shall notify Valley
monthly of all out-of-pocket expenses which Xxxxx has incurred in connection
with this transaction.
(d) Valley, in reasonable consultation with Xxxxx, shall make
all arrangements with respect to the printing and mailing of the Proxy
Statement/Prospectus.
5.13. Closing. The parties hereto shall cooperate and use
reasonable efforts to try to cause the Effective Time to occur on or about
October 30, 1998.
5.14. Indemnification. After the Effective Time, to the extent
permitted by applicable law, and the Certificate of Incorporation or Articles of
Association, Valley agrees that it will, or will cause VNB to, provide to the
directors and officers of Xxxxx and the Bank indemnification equivalent to that
provided by the Certificate of Incorporation or Charter, as the case may be, and
Bylaws of each of Xxxxx and the Bank with respect to acts or omissions occurring
prior to the Effective Time, including without limitation, the authorization of
this Agreement and the transactions contemplated hereby, for a period of six
years from the Effective Time, or in the case of matters occurring prior to the
Effective Time which have not been resolved prior to the sixth anniversary of
the Effective Time, until such matters are finally resolved. To the extent
permitted by applicable law, and the Certificate of Incorporation or Articles of
Association, Valley or VNB (as applicable) shall advance expenses in connection
with the foregoing indemnification.
5.15. New Valley Director. As of the Effective Time, Valley
shall cause its Board of Directors and the VNB Board of Directors to take action
to appoint Xxxxxx X. Xxxx, III to the Boards of Directors of Valley and VNB,
respectively, at the Effective Time.
5.16. Employment Matters.
(a) Following consummation of the Merger, Valley will honor
the existing written employment and severance contracts with officers and
employees of Xxxxx and the Bank that are included in the Xxxxx Disclosure
Schedule.
(b) Following the consummation of the Merger and for one year
thereafter, VNB shall, to the extent not duplicative of other severance
benefits, honor the Bank's severance policy as specified in Section 5.16(b) of
the Xxxxx Disclosure Schedule to pay one week of severance for each year of
service completed while employed by Xxxxx and/or the Bank, with a maximum
benefit of 12 weeks. Following the expiration of the foregoing severance policy,
any years of service recognized for purposes of this Section 5.16(b) will be
taken into account under the terms of any applicable severance policy of VNB.
(c) Valley intends, to the extent practical, to continue the
employment of all officers and employees of the Bank, at or near the same
location, with the same or equivalent salary and benefits. Valley intends, to
the extent practical, to have all Xxxxx employees participate in the benefits
and opportunities available to all Valley employees.
5.17. Pooling and Tax-Free Reorganization Treatment. Neither
Valley nor Xxxxx shall intentionally take, fail to take or cause to be taken or
not be taken, any action within its control, whether before or after the
Effective Time, which would disqualify the Merger as a "pooling of interests"
for accounting purposes or as a "reorganization" within the meaning of Section
368(a) of the Code.
5.18. Xxxxx Option Plan. From and after the Effective Time,
each Xxxxx Option which is converted to an option to purchase Valley Common
Stock under Section 2.1(b) shall be administered, operated and interpreted by a
committee comprised of members of the Board of Directors of Valley appointed by
the Board of Directors of Valley. Valley shall reserve for issuance the number
of shares of Valley Common Stock necessary to satisfy Valley's obligations.
Valley shall also register, if not previously registered pursuant to the 1933
Act, the shares authorized for issuance under the Xxxxx Options so converted.
5.19. Affiliates.
(a) Promptly, but in any event within 30 days, after the
execution and delivery of this Agreement, (i) Xxxxx shall deliver to Valley (x)
a letter identifying all persons who, to the knowledge of Xxxxx, may be deemed
to be affiliates of Xxxxx under Rule 145 of the 1933 Act, including without
limitation all directors and executive officers of Xxxxx and (y) a letter
identifying all persons who, to the knowledge of Xxxxx, may be deemed to be
affiliates of Xxxxx as that term (affiliate) is used for purposes of qualifying
for pooling-of-interests accounting treatment; and (ii) Valley shall identify to
Xxxxx all persons who, to the knowledge of Valley, may be deemed affiliates of
Valley as that term (affiliates) is used for purposes of qualifying for
pooling-of-interests accounting treatment.
(b) Xxxxx shall cause each director of Xxxxx to, and Xxxxx
shall use its best efforts to cause each executive officer of Xxxxx and each
other person who may be deemed an affiliate of Xxxxx (under either Rule 145 of
the 1933 Act or the accounting treatment rules) to, execute and deliver to
Valley within 30 days after the execution and delivery of this Agreement, a
letter substantially in the form of Exhibit 5.19 hereto agreeing to be bound by
the restrictions of Rule 145 and agreeing to be bound by the rules which permit
the Merger to be treated as a pooling of interests for accounting purposes. In
addition, Valley shall cause each director and executive officer of Valley to,
and Valley shall use its best efforts to cause each other person who may be
deemed an affiliate of Valley (as that term is used for purposes of qualifying
for pooling of interests) to, execute and deliver to Valley within 30 days after
the execution and delivery of this Agreement, a letter substantially in the form
of Exhibit 5.19.1 hereto in which such persons agree to be bound by the rules
which permit the Merger to be treated as a pooling of interests for accounting
treatment.
5.20. Compliance with the Industrial Site Recovery Act. Xxxxx,
at its sole cost and expense, shall use its best efforts to obtain prior to the
Effective Time, with respect to each facility located in New Jersey owned or
operated by Xxxxx or any Xxxxx Subsidiary (each, a "Facility"), either: (a) a
Letter of Non-Applicability ("LNA") from the New Jersey Department of
Environmental Protection ("NJDEP") stating that the Facility is not an
"industrial establishment," as such term is defined under the Industrial Site
Recovery Act ("ISRA"); (b) a Remediation Agreement issued by the NJDEP pursuant
to ISRA authorizing the consummation of the transactions contemplated by this
Agreement; (c) a Negative Declaration approval, Remedial Action Workplan
approval, No Further Action letter or other document or documents issued by the
NJDEP advising that the requirements of ISRA have been satisfied with respect to
the Facility; or (d) an opinion addressed to Valley from New Jersey legal
counsel reasonably acceptable to Valley to the effect that ISRA has been
complied with, or is inapplicable, with respect to the Facility. In the event
Xxxxx obtains a Remediation Agreement, Xxxxx will post or have posted an
appropriate Remediation Funding Source or will have obtained the NJDEP's
approval to self-guaranty any Remediation Funding Source required under any such
Remediation Agreement.
5.21. Title Agency Subsidiary. If requested by Valley, Xxxxx,
at its sole cost and expense, shall immediately begin the process of
transferring ownership of Xxxxx Title, Inc. (the "Title Subsidiary") from Xxxxx
to the Bank, and obtaining all regulatory and other approvals and consents
necessary or desirable in order to permit the business of the Title Subsidiary
to be operated without interruption or diminution resulting from such change.
ARTICLE VI
CLOSING CONDITIONS
6.1. Conditions of Each Party's Obligations Under this
Agreement. The respective obligations of each party under this Agreement to
consummate the Merger shall be subject to the satisfaction, or, where
permissible under applicable law, waiver at or prior to the Effective Time of
the following conditions:
(a) Approval of Xxxxx Stockholders; SEC Registration. This
Agreement and the transactions contemplated hereby shall have been approved by
the requisite vote of the stockholders of Xxxxx. The Registration Statement
shall have been declared effective by the SEC and shall not be subject to a stop
order or any threatened stop order, and the issuance of the Valley Common Stock
shall have been qualified in every state where such qualification is required
under the applicable state securities laws. The Valley Common Stock to be issued
in connection with the Merger, including Valley Common Stock to be issued for
the Xxxxx Options, shall have been approved for listing on the New York Stock
Exchange.
(b) Regulatory Filings. All necessary regulatory or
governmental approvals and consents (including without limitation any required
approval of the OCC and any approval or waiver required by the FRB) required to
consummate the transactions contemplated hereby shall have been obtained without
any term or condition which would materially impair the value of Xxxxx and the
Bank, taken as a whole, to Valley. All conditions required to be satisfied prior
to the Effective Time by the terms of such approvals and consents shall have
been satisfied; and all statutory waiting periods in respect thereof shall have
expired.
(c) Suits and Proceedings. No order, judgment or decree shall
be outstanding against a party hereto or a third party that would have the
effect of preventing completion of the Merger; no suit, action or other
proceeding shall be pending or threatened by any governmental body in which it
is sought to restrain or prohibit the Merger or the Bank Merger; and no suit,
action or other proceeding shall be pending before any court or governmental
agency in which it is sought to restrain or prohibit the Merger or the Bank
Merger or obtain other substantial monetary or other relief against one or more
parties hereto in connection with this Agreement and which Valley or Xxxxx
determines in good faith, based upon the advice of their respective counsel,
makes it inadvisable to proceed with the Merger because any such suit, action or
proceeding has a significant potential to be resolved in such a way as to
deprive the party electing not to proceed of any of the material benefits to it
of the Merger or the Bank Merger.
(d) Tax Free Exchange. Valley and Xxxxx shall have received an
opinion, satisfactory to Valley and Xxxxx, of Pitney, Xxxxxx, Xxxx & Xxxxx,
counsel for Valley, to the effect that the transactions contemplated hereby will
result in a reorganization (as defined in Section 368(a) of the Code), and
accordingly no gain or loss will be recognized for federal income tax purposes
to Valley, Xxxxx, VNB or the Bank or to the stockholders of Xxxxx who exchange
their shares of Xxxxx for Valley Common Stock (except to the extent that cash is
received in lieu of fractional shares of Valley Common Stock).
(e) Pooling of Interests. The Merger shall be qualified to be
treated by Valley as a pooling-of-interests for accounting purposes and Valley
shall have received a letter from KPMG Peat Marwick LLP to the effect that the
Merger will qualify for pooling-of-interests accounting treatment if closed and
consummated in accordance with the Agreement.
6.2. Conditions to the Obligations of Valley Under this
Agreement. The obligations of Valley under this Agreement shall be further
subject to the satisfaction or waiver, at or prior to the Effective Time, of the
following conditions:
(a) Representations and Warranties; Performance of Obligations
of Xxxxx and Bank. The representations and warranties of Xxxxx contained in this
Agreement shall be true and correct in all material respects on the Closing Date
as though made on and as of the Closing Date. Xxxxx shall have performed in all
material respects the agreements, covenants and obligations necessary to be
performed by it prior to the Closing Date. With respect to any representation or
warranty which as of the Closing Date has required a supplement or amendment to
the Xxxxx Disclosure Schedule to render such representation or warranty true and
correct as of the Closing Date, the representation and warranty shall be deemed
true and correct as of the Closing Date only if (i) the information contained in
the supplement or amendment to the Disclosure Schedule related to events
occurring following the execution of this Agreement and (ii) the facts disclosed
in such supplement or amendment would not either alone, or together with any
other supplements or amendments to the Xxxxx Disclosure Schedule, materially
adversely effect the representation as to which the supplement or amendment
relates.
(b) Consents. Valley shall have received the written consents
of any person whose consent to the transactions contemplated hereby is required
under the applicable instrument.
(c) Opinion of Counsel. Valley shall have received an opinion
of counsel to Xxxxx, dated the date of the Closing, in form and substance
reasonably satisfactory to Valley, covering the matters set forth on Schedule
6.2 hereto and any other matters reasonably requested by Valley.
(d) Bank Action. The Bank shall have taken all necessary
corporate action to effectuate the Bank Merger immediately following the
Effective Time.
(e) Certificates. Xxxxx shall have furnished Valley with such
certificates of its officers or other documents to evidence fulfillment of the
conditions set forth in this Section 6.2 as Valley may reasonably request.
(f) Environmental Law Compliance. Xxxxx shall have obtained,
with respect to each Facility, an LNA, a Remediation Agreement, a Negative
Declaration approval, a Remedial Action Workplan approval (in which event Xxxxx
will post or have posted an appropriate Remediation Funding Source or will have
obtained the NJDEP's approval to self-guaranty any Remediation Funding Source
required under any such Remediation Agreement), a No Further Action letter or
other document or documents issued by the NJDEP advising that the requirements
of ISRA have been satisfied with respect to the Facility or an opinion of the
type referred to in Section 5.20(d) hereof.
(g) Title Agency Subsidiary. Xxxxx shall have completed the
process of transferring ownership of the Title Subsidiary from Xxxxx to the
Bank, and shall have obtained all regulatory and other approvals and consents
necessary or desirable in order to permit the business of the Title Subsidiary
to be operated without interruption or diminution resulting from such change.
6.3. Conditions to the Obligations of Xxxxx Under this
Agreement. The obligations of Xxxxx under this Agreement shall be further
subject to the satisfaction or waiver, at or prior to the Effective Time, of the
following conditions:
(a) Representations and Warranties; Performance of Obligations
of Valley. The representations and warranties of Valley contained in this
Agreement shall be true and correct in all material respects on the Closing Date
as though made on and as of the Closing Date. Valley shall have performed in all
material respects, the agreements, covenants and obligations to be performed by
it prior to the Closing Date. With respect to any representation or warranty
which as of the Closing Date has required a supplement or amendment to the
Valley Disclosure Schedule to render such representation or warranty true and
correct as of the Closing Date, the representation and warranty shall be deemed
true and correct as of the Closing Date only if (i) the information contained in
the supplement or amendment to the Disclosure Schedule related to events
occurring following the execution of this Agreement and (ii) the facts disclosed
in such supplement or amendment would not either alone, or together with any
other supplements or amendments to the Valley Disclosure Schedule, materially
adversely effect the representation as to which the supplement or amendment
relates.
(b) Opinion of Counsel to Valley. Xxxxx shall have received an
opinion of counsel to Valley, dated the date of the Closing, in form and
substance reasonably satisfactory to Xxxxx, covering the matters set forth on
Schedule 6.3 hereto and any other matter reasonably requested by Xxxxx.
(c) Fairness Opinion. Xxxxx shall have received an opinion
from Sandler X'Xxxxx as of the date of this Agreement and the date the Proxy
Statement/Prospectus is mailed to Wayne's stockholders, with respect to the
fairness, from a financial point of view, of the Exchange Ratio to the
shareholders of Xxxxx in the Merger.
(d) Xxxxx Director. Each of Valley and VNB shall have taken
all action necessary to appoint Xxxxxx X. Xxxx, III to its Board of Directors as
specified in Section 5.15.
(e) Certificates. Valley shall have furnished Xxxxx with such
certificates of its officers or others and such other documents to evidence
fulfillment of the conditions set forth in this Section 6.3 as Xxxxx may
reasonably request.
(f) VNB Action. VNB shall have taken all necessary corporate
action to effectuate the Bank Merger immediately following the Effective Time.
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
7.1. Termination. This Agreement may be terminated prior to
the Effective Time, whether before or after approval of this Agreement by the
stockholders of Xxxxx:
(a) By mutual written consent of the parties hereto.
(b) By Valley or Xxxxx (i) if the Effective Time shall not
have occurred on or prior to the Cutoff Date or (ii) if a vote of the
stockholders of Xxxxx is taken and such stockholders fail to approve this
Agreement at the meeting (or any adjournment thereof) held for such purpose,
unless in each case the failure of such occurrence shall be due to the failure
of the party seeking to terminate this Agreement to perform or observe its
agreements set forth herein to be performed or observed by such party (or, in
the case of Xxxxx, to be performed or observed by the directors of Xxxxx) at or
before the Effective Time.
(c) By Valley or Xxxxx upon written notice to the other if any
application for regulatory or governmental approval necessary to consummate the
Merger and the other transactions contemplated hereby shall have been denied or
withdrawn at the request or recommendation of the applicable regulatory agency
or governmental authority or by Valley upon written notice to Xxxxx if any such
application is approved with conditions which materially impair the value of
Xxxxx and the Bank, taken as a whole, to Valley.
(d) By Valley if (i) there shall have occurred a material
adverse change in the business, operations, assets, or financial condition of
Xxxxx or the Bank, taken as a whole, from that disclosed by Xxxxx on the date of
this Agreement; or (ii) if the net operating income excluding security gains and
losses (after tax but excluding expenses related to this Agreement) of Xxxxx for
any full fiscal quarter after March 31, 1998, is less than $375,000; or (iii)
there was a material breach in any representation, warranty, covenant, agreement
or obligation of Wayne hereunder.
(e) By Wayne, if (i) there shall have occurred a material
adverse change in the business, operations, assets or financial condition of
Valley or VNB from that disclosed by Valley on the date of this Agreement; or
(ii) there was a material breach in any representation, warranty, covenant,
agreement or obligation of Valley hereunder.
(f) By Valley or Wayne if any condition to Closing specified
under Article VI hereof applicable to such party cannot reasonably be met on or
before the Cutoff Date after giving the other party a reasonable opportunity to
cure any such condition.
(g) By Wayne if the Average Pre-Closing Price of Valley Common
Stock is less than $26.00.
7.2. Effect of Termination. In the event of the termination
and abandonment of this Agreement by either Valley or Wayne pursuant to Section
7.1, this Agreement shall forthwith become void and have no effect, without any
liability on the part of any party or its officers, directors or stockholders,
except that Sections 5.5(b) and 8.1 hereof shall have continuing effect as set
forth therein. Nothing contained herein, however, shall relieve any party from
any liability for any breach of this Agreement.
7.3. Amendment. This Agreement may be amended by mutual action
taken by the parties hereto at any time before or after adoption of this
Agreement by the stockholders of Wayne but, after any such adoption, no
amendment shall be made which reduces or changes the amount or form of the
consideration to be delivered to the stockholders of Wayne without the approval
of such stockholders. This Agreement may not be amended except by an instrument
in writing signed on behalf of Valley and Wayne.
7.4. Extension; Waiver. The parties may, at any time prior to
the Effective Time of the Merger, (i) extend the time for the performance of any
of the obligations or other acts of the other parties hereto; (ii) waive any
inaccuracies in the representations and warranties contained herein or in any
document delivered pursuant thereto; or (iii) waive compliance with any of the
agreements or conditions contained herein. Any agreement on the part of any
party to any such extension or waiver shall be valid only if set forth in an
instrument in writing signed on behalf of such party against which the waiver is
sought to be enforced.
ARTICLE VIII
MISCELLANEOUS
8.1. Expenses. All costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby (including legal,
accounting and investment banking fees and expenses) shall be borne by the party
incurring such costs and expenses, except that the cost of printing and mailing
the Proxy Statement/Prospectus shall be borne equally by the parties hereto if
the transaction is terminated.
8.2. Notices. All notices or other communications which are
required or permitted hereunder shall be in writing and sufficient if delivered
personally or sent by telecopier with confirming copy sent the same day by
registered or certified mail, postage prepaid, as follows:
(a) If to Valley, to:
Valley National Bancorp
0000 Xxxxxx Xxxx
Xxxxx, Xxx Xxxxxx 00000-0000
Attn.: Xxxxxx X. Xxxxxx
Chairman and Chief Executive Officer
Telecopier No. (000) 000-0000
Copy to:
Pitney, Xxxxxx, Xxxx & Xxxxx
Attn.: Xxxxxx X. Xxxxx, Esq.
Delivery:
000 Xxxxxx Xxxxx
Xxxxxxx Xxxx, Xxx Xxxxxx 00000
Mail:
X.X. Xxx 0000
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
Telecopier No. (000) 000-0000
(b) If to Wayne, to:
Wayne Bancorp, Inc.
0000 Xxxxxxx Xxxxxxxx
Xxxxx, Xxx Xxxxxx 00000
Attn.: Xxxxxxx X'Xxxxxxx, President
Telecopier No. (000) 000-0000
Copy to:
Xxxxxxx, Spidi, Sloane & Xxxxx, P.C.
One Franklin Square
0000 X Xxxxxx, X.X., Xxxxx 000X
Xxxxxxxxxx, X.X. 00000
Attn.: Xxxxxxx Xxxxx, Esq.
Telecopier No. (000) 000-0000
or such other addresses as shall be furnished in writing by
any party, and any such notice or communications shall be deemed to have been
given as of the date so delivered or telecopied and mailed.
8.3. Parties in Interest. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns. Nothing in this Agreement is intended to
confer, expressly or by implication, upon any other person any rights or
remedies under or by reason of this Agreement, except for the indemnitees
covered by Section 5.14 hereof. No assignment of this Agreement may be made
except upon the written consent of the other parties hereto.
8.4. Entire Agreement. This Agreement, the Disclosure
Schedules hereto and the other documents, agreements and instruments executed
and delivered pursuant to or in connection with this Agreement, contains the
entire agreement between the parties hereto with respect to the transactions
contemplated by this Agreement and supersedes all prior negotiations,
arrangements or understandings, written or oral, with respect thereto. If any
provision of this Agreement is found invalid, it shall be considered deleted and
shall not invalidate the remaining provisions.
8.5. Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement
and each of which shall be deemed an original.
8.6. Governing Law. This Agreement shall be governed by the
laws of the State of New Jersey, without giving effect to the principles of
conflicts of laws thereof.
8.7. Descriptive Headings. The descriptive headings of this
Agreement are for convenience only and shall not control or affect the meaning
or construction of any provision of this Agreement.
8.8. Survival. All representations, warranties and, except to
the extent specifically provided otherwise herein, agreements and covenants,
other than those agreements and covenants set forth in Sections 5.14 and 5.15
which shall survive the Merger, shall terminate as of the Effective Time.
8.9. Knowledge. Representations made herein which are
qualified by the phrase to the best of Wayne's knowledge or similar phrases
refer as of the date hereof to the best knowledge of the Chief Executive Officer
and the Chief Lending Officer of Wayne and thereafter refer to the best
knowledge of any senior officer of Wayne or any Wayne subsidiary.
Representations made herein which are qualified by the phrase to the best of
Valley's knowledge or similar phrases refer as of the date hereof to the best
knowledge of the President and Chief Executive Officer, the Executive Vice
President/Legal and the Chief Financial Officer of Valley and thereafter refer
to the best knowledge of any senior officer of Valley or any Valley subsidiary.
IN WITNESS WHEREOF, Valley, VNB, the Bank and Wayne have
caused this Agreement to be executed by their duly authorized officers as of the
day and year first above written.
ATTEST: VALLEY NATIONAL BANCORP
XXXXX XXXXXXXX XXXXXX X. XXXXXX
____________________________ By:--------------------------------------
Xxxxx Xxxxxxxx, Vice Chairman Xxxxxx X. Xxxxxx, Chairman, President
and Chief Executive Officer
ATTEST: WAYNE BANCORP, INC.
XXXXXX X. XXXXXXX XXXXXX X. XXXX, III
____________________________ By:--------------------------------------
Xxxxxx X. Xxxxxxx, Secretary Xxxxxx X. Xxxx, III, Chairman and
Chief Executive Officer
ATTEST: VALLEY NATIONAL BANK
XXXXX XXXXXXXX XXXXXX X. XXXXXX
____________________________ By:--------------------------------------
Xxxxx Xxxxxxxx, Vice Chairman Xxxxxx X. Xxxxxx, Chairman, President
and Chief Executive Officer
ATTEST: XXXXX SAVINGS BANK, F.S.B.
XXXXXX X. XXXXXXX XXXXXXX X'XXXXXXX
_____________________________ By:-------------------------------------
Xxxxxx X. Xxxxxxx , Secretary Xxxxxxx X'Xxxxxxx, President
and Chief Executive Officer
CERTIFICATE OF THE DIRECTORS OF
XXXXX BANCORP, INC. AND
XXXXX SAVINGS BANK, F.S.B.
Reference is made to the Agreement and Plan of Merger, dated
as of May 29, 1998 (the "Agreement"), among Valley National Bancorp, Valley
National Bank, Wayne Bancorp Inc., and Xxxxx Savings Bank, F.S.B. Capitalized
terms used herein have the meanings given to them in the Agreement.
Each of the following persons, being all of the directors of
Wayne and the Bank, express their intention, subject to their fiduciary duties,
to vote or cause to be voted all shares of Wayne Common Stock which are held by
such person, or over which such person exercises full voting control (other than
shares with respect to which such person exercises control in a fiduciary
capacity, as to which no agreement is made hereby), in favor of the Merger.
XXXXXX X. XXXX, III
------------------------
XXXXXX X. XXXX, III
XXXXXXX X'XXXXXXX
------------------------
XXXXXXX X'XXXXXXX
XXXXXXX X. XXXXX
------------------------
XXXXXXX X. XXXXX
XXXXX X. XXXXXXX
------------------------
XXXXX X. XXXXXXX
XXXXXX X. XXXXXXX
------------------------
XXXXXX X. XXXXXXX
XXXXXXXX X. XXXXXXX, XX.
------------------------
XXXXXXXX X. XXXXXXX, XX.
XXXXXX XXXXXXX
------------------------
XXXXXX XXXXXXX
XXXXXXX XXX
------------------------
XXXXXXX XXX
XXXXXXX XXXX
------------------------
XXXXXXX XXXX
XXXXXX XXXXXXX
------------------------
XXXXXX XXXXXXX
EXHIBIT A
AGREEMENT TO MERGE BETWEEN
VALLEY NATIONAL BANK
AND
XXXXX SAVINGS BANK, F.S.B.
UNDER THE CHARTER OF VALLEY NATIONAL BANK,
UNDER THE TITLE OF VALLEY NATIONAL BANK
THIS AGREEMENT made between Valley National Bank (hereinafter
referred to as "VNB"), a national banking association organized under the laws
of the United States, being located at 000 Xxxx Xxxxxx, Xxxxxxx, Xxx Xxxxxx,
with a capital of $____________ divided into ____________ shares of common
stock, each of $5.00 par value, $____________ of surplus, and undivided profits
of $____________, as of March 31, 1998, and Xxxxx Savings Bank, F.S.B.
(hereinafter referred to as "Wayne"), a federally-chartered savings bank
organized under the laws of the United States, being located at 0000 Xxxxxxx
Xxxxxxxx, Xxxxxx of Bergen, in the State of New Jersey, with a capital of
$____________, divided into ________ shares of common stock, each of $______ par
value, surplus of $___________, and undivided profits of $_________, as of March
31, 1998, each acting pursuant to a resolution of its board of directors,
adopted by the vote of a majority of its directors, pursuant to the authority
given by and in accordance with the provisions of the Act of November 7, 1918,
as amended (12 U.S.C. Section 215(a)), and the Home Owners' Loan Act of 1933, as
amended, witnesseth as follows:
Section 1. Wayne shall be merged into VNB under the charter of
VNB.
Section 2. The name of the receiving association (hereinafter
referred to as the "Association") shall be Valley National Bank.
Section 3. The business of the Association shall be that of a
national banking Association. This business shall be conducted by the
Association at its main office which shall be located at 000 Xxxx Xxxxxx,
Xxxxxxx, Xxx Xxxxxx, and at its legally established branches.
Section 4. The amount of capital stock of the Association
shall be $______________, divided into ____________ shares of common stock, each
of $5.00 par value, and at the time the merger shall become effective, the
Association shall have a surplus of $____________, and undivided profits,
including capital reserves, which when combined with the capital and surplus
will be equal to the combined capital structures of the merging banks as stated
in the preamble of this Agreement, adjusted however, for normal earnings and
expenses between March 31, 1998, and the effective time of the merger.
Section 5. All assets of each of the merging banks, as they
exist at the effective time of the merger, shall pass to and vest in the
Association without any conveyance or other transfer. The Association shall be
responsible for all of the liabilities of every kind and description, including
liabilities arising from the operation of their respective trust departments, of
each of the merging banks existing as of the effective time of the merger. After
the effective time of the merger, VNB will continue to maintain the Wayne
liquidation account established by Wayne upon its conversion to the stock form
of organization for the benefit of eligible account holders on the same basis as
immediately prior to the effective time of the merger, and Wayne's liquidation
account for the benefit of eligible account holders shall automatically be
deemed assumed by VNB, as of the effective time of the merger, on the same basis
as it existed immediately prior to the effective time of the merger.
Section 6. Wayne shall contribute to the Association its
capital set forth in the preamble, adjusted, however, for normal earnings,
expenses and dividends between March 31, 1998, and the effective time of the
merger.
VNB shall have on hand at the effective time of the merger its
capital as set forth in the preamble, adjusted, however, for normal earnings,
expenses and dividends between March 31, 1998 and the effective date of the
merger.
Section 7. The stockholders of VNB shall retain their rights
in the capital stock presently outstanding, which shall immediately and
automatically become ____________ shares of common stock of the Association,
each with $5.00 par value, and the stockholders of Wayne in exchange for the
excess acceptable assets contributed by their bank to the Association shall be
entitled to receive ___________ shares of common stock of the Association, each
with $5.00 par value.
Section 8. Neither of the banks shall declare nor pay any
dividend to its stockholders between the date of this Agreement and the time at
which the merger shall become effective, nor dispose of any of its assets in any
other manner except in the ordinary course of business consistent with prudent
banking practice. Provided, however, that VNB shall be entitled to pay dividends
to its parent without restriction and Bank may pay dividends to Wayne consistent
with past practice, so long as the payment of such dividends shall thereby not
cause a breach of any representation, covenant, agreement or condition to which
the Bank is subject under the Agreement and Plan of Merger, dated as of May 29,
1998 among Valley National Bancorp, Wayne Bancorp Inc., VNB and Wayne (the
"Merger Agreement").
Section 9. The present board of directors of VNB (with the
addition of Xxxxxx X. Xxxx, III) shall serve as the board of directors of the
Association until the next annual meeting or until such time as their successors
have been elected and have qualified.
Section 10. Effective as of the time this merger shall become
effective as specified in the merger approval to be issued by the Office of the
Comptroller of the Currency (the "OCC"), the articles of association of the
resulting bank shall read in their entirety as set forth in Schedule 1 annexed
hereto.
Section 11. This Agreement shall be terminated automatically
if the Merger Agreement is terminated as provided in the Merger Agreement.
Section 12. This Agreement shall be ratified and confirmed by
the affirmative vote of the stockholders of each of the merging banks owning at
least two-thirds of its capital stock outstanding, at a meeting to be held on
the call of the directors; and the merger shall become effective at the time
specified in the merger approval to be issued by the OCC.
Section 13. Each of the representations, warranties and
covenants of the parties hereto shall terminate as of the effective time of the
merger, other than Section 5 hereof which shall survive the effective time of
the merger.
Section 14. This Agreement may be executed in any number of
counterparts, and each counterpart shall constitute an original instrument, but
all such separate counterparts shall constitute only one and the same
instrument.
Section 15. Except as governed by federal law, the validity,
construction and enforceability of this Agreement shall be governed in all
respects by the laws of the State of New Jersey without regard to its conflicts
of laws or rules.
WITNESS, the signatures and seals of the merging banks this
_____ day of ____, 1998, each set by its president or a vice president and
attested to by its cashier or secretary, pursuant to a resolution of its board
of directors, acting by a majority.
ATTEST: VALLEY NATIONAL BANK
_______________________ By:-------------------------------------
, Cashier Xxxxxx X. Xxxxxx, Chairman, President
and Chief Executive Officer
ATTEST: XXXXX SAVINGS BANK, F.S.B.
________________________ By:--------------------------------------
, Secretary Xxxxxxx X'Xxxxxxx, President
and Chief Executive Officer
STATE OF NEW JERSEY )
: ss.
COUNTY OF ___________)
On this _____ day of _____________, 1998, before me, a Notary
Public for this state and county, personally came Xxxxxx X. Xxxxxx, as Chairman
and Chief Executive Officer, and ___________ _________________________, as
Cashier of VALLEY NATIONAL BANK, and each of his/her capacity acknowledged this
instrument to the act and deed of the association and the seal affixed to it to
be its seal.
WITNESS my official seal and signature this day and year.
----------------------------
(Seal of Notary)
STATE OF NEW JERSEY )
:ss.
COUNTY OF ___________)
On this _____ day of ____________, 1998, before me, a Notary
Public for this state and county, personally came Xxxxxxx X'Xxxxxxx, as
President and Chief Executive Officer, and ___________
_________________________, as Secretary of XXXXX SAVINGS BANK, F.S.B., and each
of his/her capacity acknowledged this instrument to the act and deed of the
association and the seal affixed to it to be its seal.
WITNESS my official seal and signature this day and year.
----------------------------
(Seal of Notary)
Schedule 1
ARTICLES OF ASSOCIATION
OF
VALLEY NATIONAL BANK1
NAME
FIRST. The title of the Association shall be "Valley National
Bank".
MAIN OFFICE
SECOND. The main office of the Association shall be in the
City of Passaic, County of Passaic, State of New Jersey. The general business of
the Association shall be conducted at its main office and its branches.
DIRECTORS
THIRD. The Board of Directors of this Association shall
consist of not less than five nor more than twenty-five directors the exact
number to be fixed and determined from time to time by resolution of a majority
of the full Board of Directors or by resolution of the shareholders at any
annual or special meeting thereof. Each director shall own $1,000 equity
interest in this Association or in a company which as control of the
Association. The amount of the equity interest shall meet this requirement if it
conforms to the requirements of 12 U.S.C. 72, as amended on March 31, 1980, or
as amended from time to time thereafter. Any vacancy in the Board of Directors
may be filled by action of the Board of Directors.
ANNUAL MEETING OF STOCKHOLDERS
FOURTH. There shall be an annual meeting of the stockholders,
the purpose of which shall be the election of Directors and the transaction of
whatever other business may be brought before the meeting. The meeting shall be
held at the main office of the Association or any other convenient place as the
Board of Directors may designate, on the date of each year specified therefor in
the By-laws, but if no election is held on that day, it may be held on any
subsequent day according to such lawful rules as may be prescribed by the Board
of Directors.
Nominations for election to the Board of Directors may be made
by the Board of Directors or by any stockholder of any outstanding class of
capital stock of the Association entitled to vote for election of directors.
Nominations other than those made by or on behalf of the existing management of
the Association, shall be made in writing and shall be delivered or mailed to
the President of the Association and to the Comptroller of the Currency,
Washington, D.C., not less than 14 days nor more than 50 days prior to any
meeting of stockholders called for the election of directors; provided, however,
that if less than 21 days' notice of the meeting is given to shareholders, such
nominations shall be mailed or delivered to the President of the Association and
to the Comptroller of the Currency not later than the close of business on the
seventh day following the day on which the notice of meeting was mailed. Such
notification shall contain the following information to the extent known to the
notifying shareholder: (a) the name and address of each proposed nominee; (b)
the principal occupation of each proposed nominee; (c) the total number of
shares of capital stock of the Association that will be voted for each proposed
nominee; (d) the name and residence address of the notifying shareholder; and
(e) the number of shares of capital stock of the Association owned by the
notifying shareholder. Nominations not made in accordance herewith may be
disregarded by the Chairman of the meeting, in his discretion, and upon his
instructions the vote tellers may disregard all votes cast for each such
nominee.
CAPITAL
FIFTH. The authorized amount of capital stock of this
Association shall be 3,191,862 shares of common stock of the par value of five
dollars ($5.00) each; but said capital stock may be increased or decreased from
time to time, in accordance with the provisions of the laws of the United
States.
No holder of shares of the capital stock of any class of the
Association shall have any pre-emptive or preferential right of subscription to
(i) any shares of any class of stock of the Association, whether now or
hereafter authorized, or (ii) to any obligations convertible into stock of the
Association, or (iii) to any right of subscription to any of the foregoing;
except any of the foregoing rights which the Board of Directors, in its sole
discretion may from time to time determine and at such price as the Board of
Directors may from time to time fix.
The Association, at any time and from time to time, may
authorize and issue debt obligations, whether or not subordinated, without the
approval of the stockholders.
OFFICERS
SIXTH. The Board of Directors shall appoint one of its members
President of this Association, who shall be Chairman of the Board, unless the
Board appoints another director to be the Chairman. The Board of Directors shall
have the power to appoint one or more Vice Presidents; and to appoint a Cashier
and such other officers and employees as may be required to transact the
business of this Association.
The Board of Directors shall have the power to define the
duties of the officers and employees of the Association; to fix the salaries to
be paid to them; to dismiss them; to require bonds from them and to fix the
penalty thereof; to regulate the manner in which any increase of the capital of
the Association shall be made; to manage and administer the business and affairs
of the Association; to make all By-Laws that it may be lawful for them to make;
and generally to do and perform all acts that it may be legal for a Board of
Directors to do and perform.
CHANGE OF MAIN OFFICE; BRANCHES
SEVENTH. The Board of Directors shall have the power, without
shareholder approval, to change the location of the main office to any other
authorized branch location within the limits of the City of Passaic and to
establish or change the location of any branch or branches of the Association.
Any change in the location of the main office to another authorized branch
location within the City of Passaic shall be effected upon written notice to the
Comptroller of the Currency. Any change in the location of the Main Office,
except to an authorized branch location within the City of Passaic, shall
require both the approval of the Comptroller of the Currency and the approval of
stockholders owning two-thirds of the stock of the Association and any such
change shall be to a place not more than 30 miles from the city limits of the
City of Passaic.
EXISTENCE
EIGHTH. The corporate existence of this Association shall
continue until terminated in accordance with the laws of the United States.
SPECIAL MEETINGS OF SHAREHOLDERS; NOTICE OF MEETINGS
NINTH. The Board of Directors of this Association, or any one
or more shareholders owning, in the aggregate, not less than ten percent of the
stock of this Association, may call a special meeting of shareholders at any
time. Unless otherwise provided by the laws of the United States, a notice of
the time, place, and purpose of every annual and special meeting of the
shareholders shall be given by first-class mail, postage prepaid, mailed at
least ten days prior to the date of such meeting to each shareholder of record
at his address as shown upon the books of this Association.
INDEMNIFICATION
TENTH. Any person, his heirs, executors or administrators, may
be indemnified or reimbursed by the Association for liability and reasonable
expenses, including amounts paid in settlement or in satisfaction of judgments
or as fines and/or penalties, actually incurred in connection with any action,
suit or proceeding, civil or criminal, to which he or they shall be involved or
threatened to be involved, as a party, or otherwise, by reason of his being or
having been a director, officer, or employee of the Association or of any firm,
corporation or organization which he served in any such capacity at the request
of the Association. Provided, however, that no person shall be so indemnified or
reimbursed in relation to any matter in such action, suit or proceeding as to
which he shall finally be adjudged to have been guilty of or liable for gross
negligence, willful misconduct or criminal acts in the performance of his duties
to the Association; and, provided further, that no person shall be so
indemnified or reimbursed in relation to any matter in such action, suit, or
proceeding which has been made the subject of a compromise settlement except
with: (i) the approval of a court of competent jurisdiction or; (ii) the holders
of record of a majority of the outstanding voting shares of the Association; or
(iii) the Board of Directors acting by vote of directors not parties to the same
or substantially the same action, suit, or proceeding, constituting a majority
of the whole number of directors. The foregoing right of indemnification or
reimbursement shall not be exclusive of other rights to which such persons, his
heirs, executors or administrators, may be entitled as a matter of law.
The Association may, upon the affirmative vote of a majority
of its Board of Directors, purchase insurance for the purpose of indemnifying
its directors, officers and other employees to the extent that such
indemnifications are allowed in the preceding paragraph. Such insurance may, but
need not, be for the benefit of all directors, officers or employees.
AMENDMENTS
ELEVENTH. These Articles of Association may be amended at any
regular or special meeting of the shareholders by the affirmative vote of the
holders of a majority of the stock of this Association, unless the vote of the
holders of a greater amount of stock is required by law, and in that case by the
vote of the holders of such greater amount.
EXHIBIT 5.19
WAYNE AFFILIATE LETTER
May __, 1998
Valley National Bancorp
0000 Xxxxxx Xxxx
Xxxxx, Xxx Xxxxxx 000000
Gentlemen:
I am delivering this letter to you in connection with the
proposed merger (the "Merger") of Wayne Bancorp, Inc., a Delaware corporation
(the "Company") with and into Valley National Bancorp, a New Jersey corporation
("Valley"), pursuant to the Agreement and Plan of Merger dated as of May 29,
1998 (the "Agreement") among the Company, Valley, Xxxxx Savings Bank, F.S.B. and
Valley National Bank. I currently own shares of the Company's common stock, par
value $0.01 per share ("Wayne Common Stock"). As a result of the Merger, I will
receive shares of Valley's common stock, no par value ("Valley Common Stock") in
exchange for my Wayne Common Stock. In addition, to the extent I own options to
acquire Wayne Common Stock, those options will be converted in the Merger into
Valley Common Stock or options to acquire Valley Common Stock.
I have been advised that as of the date of this letter I may
be deemed to be an "affiliate" of the Company, as the term "affiliate" is
defined for purposes of paragraphs (c) and (d) of Rule 145 of the rules and
regulations promulgated under the Securities Act of 1933, as amended (the "Act")
by the Securities and Exchange Commission (the "Commission") and as the term
"affiliate" is used for purposes of the Commission's rules and regulations
applicable to the determination of whether a merger can be accounted for as a
"pooling of interests" as specified in the Commission's Accounting Series
Release 135, as amended by Staff Accounting Bulletins Nos. 65 and 76 ("ASR
135").
I represent to and covenant with Valley that:
A. Transfer Restrictions Prior to Merger Consummation. During
the period beginning on the date hereof and ending 30 days prior to the
consummation of the Merger, I shall not sell, transfer or otherwise dispose of
("transfer") any Wayne Common Stock owned by me, and I shall not permit any
relative who shares my home, or any person or entity who or which I control,
from transferring any Wayne Common Stock owned by such person or entity, without
notifying Valley in advance of the proposed transfer and giving Valley a
reasonable opportunity to object to the transfer before it is consummated.
Valley, upon advice of its independent public accountants, may instruct me not
to make or permit the transfer because it may interfere with the "pooling of
interests" treatment of the Merger. I shall abide by any such instructions.
B. Post-Consummation Transfer Restrictions. During the period
beginning 30 days prior to the consummation of the Merger and ending immediately
after financial results covering at least 30 days of post-Merger combined
operations have been published by Valley by means of the filing of a Form 10-Q
or Form 8-K under the Securities Exchange Act of 1934, as amended, the issuance
of a quarterly earnings report, or any other public issuance which satisfies the
requirements of ASR 135, I shall not transfer any Wayne Common Stock owned by
me, and I shall not permit any relative who shares my home, or any person or
entity who or which I control, to transfer any Wayne Common Stock owned by such
person or entity. For purposes of this paragraph, "Wayne Common Stock" includes
the Valley Common Stock into which the Wayne Common Stock or Options is
converted.
C. Need for Registration or Exemption in Connection with
Transfers. I have been advised that the issuance of Valley Common Stock to me
pursuant to the Merger will be registered with the Commission under the Act on a
Registration Statement on Form S-4. However, I have also been advised that,
since I may be deemed to be an affiliate of the Company at the time the Merger
is submitted for a vote of the Company's stockholders, any transfer by me of
Valley Common Stock received by me in the Merger is restricted under Rule 145
promulgated by the Commission under the Act. I may not transfer Valley Common
Stock received by me or by any relative who shares my home or by any person or
entity who or which I control, unless (i) such transfer is registered under the
Act, (ii) such transfer is made in conformity with the volume and other
limitations of Rule 145 promulgated by the Commission under the Act, or (iii) in
the opinion of counsel reasonably acceptable to Valley, such transfer is
otherwise exempt from registration under the Act.
D. Stop Transfer Instructions; Legend on Certificates. I also
understand that stop transfer instructions will be given to Valley's transfer
agents with respect to the Valley Common Stock and that there will be placed on
the certificates of the Valley Common Stock issued to me or to any relative who
shares my home or to any person or entity who or which I control, or any
substitutions therefor, a legend stating in substance:
"THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A
TRANSACTION TO WHICH RULE 145 PROMULGATED UNDER THE SECURITIES ACT OF 1933
APPLIES. THE SHARES REPRESENTED BY THIS CERTIFICATE MAY ONLY BE TRANSFERRED IN
ACCORDANCE WITH THE TERMS OF AN AGREEMENT DATED MAY ___, 1998 BETWEEN THE
REGISTERED HOLDER HEREOF AND VALLEY NATIONAL BANCORP, A COPY OF WHICH AGREEMENT
IS ON FILE AT THE PRINCIPAL OFFICE OF VALLEY NATIONAL BANCORP."
E. Consultation with Counsel. I have carefully read this
letter and the Agreement and discussed the requirements of such documents and
other applicable limitations upon my ability to transfer Valley Common Stock to
the extent I felt necessary with my counsel or counsel for the Company.
Execution of this letter is not an admission on my part that I
am an "affiliate" of the Company as described in the second paragraph of this
letter, or a waiver of any rights I may have to object to any claim that I am
such an affiliate on or after the date of this letter. This letter shall
terminate concurrently with any termination of the Agreement in accordance with
its terms.
Very truly yours,
Name:
Accepted this ____ day of
_______________, 1998 by
VALLEY NATIONAL BANCORP
By:
Name:
Title:
EXHIBIT 5.19.1
VALLEY AFFILIATE LETTER
May __, 1998
Valley National Bancorp
0000 Xxxxxx Xxxx
Xxxxx, Xxx Xxxxxx 00000-0000
Gentlemen:
I am delivering this letter to you in connection with the
proposed merger (the "Merger") of Wayne Bancorp, Inc., a Delaware corporation
("Wayne") with and into Valley National Bancorp, a New Jersey corporation
("Valley"), pursuant to the Agreement and Plan of Merger dated as of May 29,
1998 (the "Agreement") among Valley, Wayne, Valley National Bank and Xxxxx
Savings Bank, F.S.B. I currently own shares of Valley's common stock, no par
value ("Valley Common Stock").
I have been advised that as of the date of this letter I may
be deemed to be an "affiliate" of Valley, as the term "affiliate" is used for
purposes of the rules and regulations of the Securities and Exchange Commission
(the "Commission") applicable to the determination of whether a merger can be
accounted for as a "pooling of interests" as specified in the Commission's
Accounting Series Release 135, as amended by Staff Accounting Bulletins Nos. 65
and 76 ("ASR 135").
I represent and covenant with Valley and Wayne that:
A. Transfer Restrictions Prior to Merger Consummation. During
the period beginning on the date hereof and ending 30 days prior to the
consummation of the Merger, I shall not sell, transfer or otherwise dispose of
("transfer") any Valley Common Stock owned by me, and I shall not permit any
relative who shares my home, or any person or entity who or which I control,
from transferring any Valley Common Stock owned by such person or entity,
without notifying Valley in advance of the proposed transfer and giving Valley a
reasonable opportunity to object to the transfer before it is consummated.
Valley, upon advice of its independent public accountants, may instruct me not
to make or permit the transfer because it may interfere with the "pooling of
interests" treatment of the Merger. I shall abide by any such instructions.
B. Post-Consummation Transfer Restrictions. During the period
beginning 30 days prior to the consummation of the Merger and ending immediately
after financial results covering at least 30 days of post-Merger combined
operations have been published by Valley by means of filing of a Form 10-Q or
Form 8-K under the Securities Exchange Act of 1934, the issuance of a quarterly
earnings report, or any other public issuance which satisfies the requirements
of ASR 135, I shall not transfer any Valley Common Stock owned by me, and I
shall not permit any relative who shares my home, or any person or entity who or
which I control, to transfer any Valley Common Stock owned by such person or
entity.
C. Consultation with Counsel. I have carefully read this
letter and the Agreement and discussed the requirements of such documents and
other applicable limitations upon my ability to transfer Valley Common Stock to
the extent I felt necessary with my counsel or counsel for Valley.
Execution of this letter is not an admission on my part that I
am an "affiliate" of Valley as described in the second paragraph of this letter,
or a waiver of any rights I may have to object to any claim that I am such an
affiliate on or after the date of this letter. This letter shall terminate
concurrently with any termination of the Agreement in accordance with its terms.
Very truly yours,
-----------------------------
Name:
Accepted this ___ day of
____________, 1998 by
VALLEY NATIONAL BANCORP
By: ___________________________
Name:
Title:
SCHEDULE 6.2
FORM OF OPINION OF COUNSELS TO
WAYNE TO BE DELIVERED TO
VALLEY AT THE EFFECTIVE TIME
(Capitalized terms used herein and not otherwise defined have the meanings
given them in the Agreement)
(a) Wayne is a corporation validly existing and in good
standing under the laws of the State of Delaware. Wayne has the corporate power
and authority to own or lease all of its properties and assets and to carry on
its business as described in the Proxy Statement/Prospectus on page __ under the
caption _________________. Wayne is registered as a savings and loan holding
company under the HOLA.
(b) Each Subsidiary of Wayne listed as such in the Wayne
Disclosure Schedule is validly existing and in good standing under the laws of
the jurisdiction of its incorporation. The Bank is a federally-chartered mutual
savings bank under the laws of the United States. The Bank has the corporate
power and authority to own or lease all of its properties and assets and to
carry on its business as described in the Proxy Statement/Prospectus on page __
under the caption _________________.
(c) The authorized capital stock of Wayne consists of
8,000,000 shares of Wayne Common Stock and 2,000,000 shares of Wayne Preferred
Stock. Except for any Wayne Common Stock issuable upon exercise of outstanding
Wayne Options granted pursuant to the Wayne Option Plan and the Valley Stock
Option, we have not become aware (through our representation of Wayne in
connection therewith or in the course of our representation of Wayne in
connection with the Agreement, or through Wayne's representations to us in the
attached certificate) of any outstanding subscription rights, options,
conversion rights, warrants or other agreements or commitments of any nature
whatsoever (either firm or conditional) obligating Wayne to issue, deliver or
sell, cause to be issued, delivered or sold, or restricting Wayne from selling
any Wayne Preferred Stock or any additional Wayne Common Stock or obligating
Wayne to xxxxx, extend or enter into any such agreement or commitment. Based
solely upon our review of the minute books of Wayne and its Subsidiaries, and
without independent verification of the matters recited therein, all of the
outstanding shares of capital stock of each Subsidiary of Wayne listed as such
in the Wayne Disclosure Schedule have been validly authorized and issued and we
are not aware of any liens, claims, equities, restrictions or encumbrances
created by Wayne on Wayne's ownership thereof.
(d) The Agreement has been authorized, executed and delivered
by Wayne and the Bank and constitutes the valid and binding obligations of Wayne
and the Bank, respectively, enforceable in accordance with its terms, except
that the enforceability of the obligations of Wayne and the Bank may be limited
by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, or
laws affecting federally chartered savings and loan holding companies or
institutions the deposits of which are insured by the FDIC or other laws
heretofore or hereafter enacted relating to or affecting the enforcement of
creditors' rights generally and by principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law). In
addition, certain remedial and other provisions of the Agreement may be limited
by implied covenants of good faith, fair dealing, and commercially reasonable
conduct, by judicial discretion, in the instance of equitable remedies, and by
applicable public policies and laws.
(e) The execution and delivery of the Agreement and the Bank
Merger Agreement and the consummation of the transactions contemplated thereby
will not (i) conflict with or violate any provision of or result in the breach
of any provision of the respective certificate of incorporation or charter, as
the case may be, or by-laws of Wayne or the Bank; (ii) conflict with or violate
in any material respect, or result in a material breach or violation of the
terms or provisions of, or constitute a default under, or result in (whether
upon or after the giving of notice or lapse of time or both) any material
obligation under, any indenture, mortgage, deed of trust or loan agreement or
any other agreement, instrument, judgment, order, arbitration award or decree of
which we are aware (through our representation of Wayne in connection therewith
or in the course of our representation of Wayne in connection with the
Agreement, or through Wayne's representations to us in the attached certificate)
and to which Wayne or the Bank is a party or by which Wayne or the Bank is
bound; or (iii) cause Wayne or the Bank to violate any law, rule or regulation
applicable to Wayne or the Bank: except with respect to (ii) and (iii) above,
such as in the aggregate will not have a material adverse effect on the ability
of Wayne and the Bank to consummate the transactions contemplated by the
Agreement.
(f) All actions of the directors and stockholders of Wayne and
of the Bank required by federal banking law or Delaware law, or by the
respective certificate of incorporation or charter, as the case may be, or
by-laws of Wayne or the Bank, to be taken by Wayne or the Bank to authorize the
execution, delivery and performance of the Agreement and consummation of the
Merger have been taken.
(g) No approvals, authorizations, consents or other actions or
filings under federal banking law or Delaware law ("Approvals") are required to
be obtained by Wayne or the Bank in order to permit the execution and delivery
of the Agreement by Wayne and the Bank and the performance by Wayne and the Bank
of the transactions contemplated thereby other than those Approvals which have
been obtained or those Approvals or consents required to be obtained by Valley
or VNB, or Approvals not required or necessary to be obtained on the date
hereof.
(h) Except as set forth in the Wayne Disclosure Schedule and
in Wayne's certificate addressed to us and attached hereto, and other than
ordinary routine litigation incidental to the business of Wayne or its
Subsidiaries, we are not aware of any material action, suit or proceeding or
investigation pending or threatened in writing against or affecting the
business, operations, property or financial condition of Wayne or any of its
Subsidiaries, at law or in equity, in any court or before any Federal, state,
municipal or other governmental department, commission, board, bureau, agency or
instrumentality, except those which, if decided adversely to Wayne or any of its
Subsidiaries, would not have a material adverse effect on Wayne and its
Subsidiaries, taken as a whole; provided, however, we are not counsel to Wayne
or its Subsidiaries in any litigation and with respect to litigation we are
relying upon the representation and warranty of Wayne made in Section 3.7 of the
Agreement with respect to material litigation and on Wayne's certificate
addressed to us and attached hereto.
* * * * * * *
We are not passing upon and do not assume any responsibility
for the accuracy, completeness or fairness of the statements and information
contained in the Proxy Statement/Prospectus and make no representation that we
have independently verified the accuracy, completeness or fairness of such
statements and information, but, without in any way limiting the generality of
the foregoing, based upon our review of the Proxy Statement/Prospectus (i) the
Proxy Statement/Prospectus (except for financial statements and other tabular
financial information, and other financial and statistical data and information,
as to which we express no opinion) complies as to form in all material respects
with the 1934 Act and the applicable laws and regulations thereunder, (ii) no
facts have come to our attention that caused us to believe that (except for
financial statements and other tabular financial information, as to which we do
not express any belief) the Proxy Statement/Prospectus on the date of the
mailing thereof and on the date of the meeting of stockholders of Wayne at which
the Agreement was approved, contained any untrue statement of a material fact
with respect to Wayne or omitted to state a material fact with respect to Wayne
necessary in order to make the statements therein with respect to Wayne, in
light of the circumstances under which they were made, not misleading.
* * * * * * *
In rendering their opinion, counsel to Wayne (A) may, to the
extent they deem proper and so specify in their opinion, rely upon the opinion
of other counsel as to matters involving the application of laws of any
jurisdiction other than the United States, or may exclude from their opinion the
substance included in the opinions of other counsel given directly to Wayne and
(B) may rely, as to matters of fact, on certificates of responsible officers of
Wayne, the Bank, or other Subsidiaries of Wayne and public officials; provided
copies of any such opinions or certificates are delivered to Wayne together with
the opinion to be rendered hereunder by counsel to Wayne. Counsel to Wayne may
assume that any agreement is the valid and binding obligation of any parties to
such agreement other than Wayne and the Bank. As to matters of fact, counsel to
Wayne may also rely upon the representations and warranties made by Wayne to
Wayne in the Agreement as though such representations and warranties were made
directly to counsel. Counsel to Wayne may also rely upon the genuineness of
signatures and the authenticity of copies.
SCHEDULE 6.3
FORM OF OPINION OF COUNSEL TO
VALLEY TO BE DELIVERED TO
WAYNE AT THE EFFECTIVE TIME
(Capitalized terms used herein and not otherwise defined have the meanings
given them in the Agreement)
(a) Valley is a corporation validly existing and in good
standing under the laws of the State of New Jersey. Valley has the corporate
power and authority to own or lease all of its properties and assets and to
carry on its business as described in the Proxy Statement/Prospectus on page __
under the caption _________________. Valley is registered as a bank holding
company under the BHCA.
(b) Each Subsidiary of Valley listed as such in the Valley
Disclosure Schedule is validly existing and in good standing under the laws of
the jurisdiction of its incorporation. VNB is a national banking association
chartered under the laws of the United States. VNB has the corporate power and
authority to own or lease all of its properties and assets and to carry on its
business as described in the Proxy Statement/Prospectus on page __ under the
caption _________________.
(c) The authorized capital stock of Valley consists of
___________ shares of common stock, no par value per share ("Valley Common
Stock"). Except for any Valley Common Stock issuable upon exercise of
outstanding stock options and stock appreciation rights granted pursuant to the
Valley Option Plan, we have not become aware (through our representation of
Valley in connection therewith or in the course of our representation of Valley
in connection with the Agreement, or through Valley's representations to us in
the attached certificate) of any outstanding subscription rights, options,
conversion rights, warrants or other agreements or commitments of any nature
whatsoever (either firm or conditional) obligating Valley to issue, deliver or
sell, cause to be issued, delivered or sold, or restricting Valley from selling
any additional Valley Common Stock or obligating Valley to grant, extend or
enter into any such agreement or commitment except as may be provided in any
acquisition agreement Valley may enter into after the date of execution of the
Agreement. Based solely upon our review of the minute books of Valley and its
Subsidiaries, and without independent verification of the matters recited
therein, all of the outstanding shares of capital stock of each Subsidiary of
Valley listed as such in the Valley Disclosure Schedule have been validly
authorized and issued and we are not aware of any liens, claims, equities,
restrictions or encumbrances created by Valley on Valley's ownership thereof.
The Valley Common Stock to be issued in connection with the Merger in accordance
with Article II of the Agreement, when so issued in accordance therewith, will
be duly authorized, validly issued, fully paid and non-assessable, free of
preemptive rights and free and clear of all liens, encumbrances or restrictions
created by Valley.
(d) The Agreement has been authorized, executed and delivered
by Valley and VNB and constitutes the valid and binding obligations of Valley
and VNB, respectively, enforceable in accordance with its terms, except that the
enforceability of the obligations of Valley and VNB may be limited by
bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, or
laws affecting institutions the deposits of which are insured by the FDIC or
other laws heretofore or hereafter enacted relating to or affecting the
enforcement of creditors' rights generally and by principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law). In addition, certain remedial and other provisions of the
Agreement may be limited by implied covenants of good faith, fair dealing, and
commercially reasonable conduct, by judicial discretion, in the instance of
equitable remedies, and by applicable public policies and laws.
(e) The execution and delivery of the Agreement and the Bank
Merger Agreement and the consummation of the transactions contemplated thereby
will not (i) conflict with or violate any provision of or result in the breach
of any provision of the respective certificates of incorporation or by-laws of
Valley or VNB; (ii) conflict with or violate in any material respect, or result
in a material breach or violation of the terms or provisions of, or constitute a
default under, or result in (whether upon or after the giving of notice or lapse
of time or both) any material obligation under, any indenture, mortgage, deed of
trust or loan agreement or any other agreement, instrument, judgment, order,
arbitration award or decree of which we are aware (through our representation of
Valley in connection therewith or in the course of our representation of Valley
in connection with the Agreement, or through Valley's representations to us in
the attached certificate) and to which Valley or VNB is a party or by which
Valley or VNB is bound; or (iii) cause Valley or VNB to violate any law, rule or
regulation applicable to Valley or VNB: except with respect to (ii) and (iii)
above, such as in the aggregate will not have a material adverse effect on the
ability of Valley and VNB to consummate the transactions contemplated by the
Agreement.
(f) All actions of the directors and stockholders of Valley
and of VNB required by federal banking law or New Jersey law, or by the
respective certificates of incorporation or by-laws of Valley or VNB, to be
taken by Valley or VNB to authorize the execution, delivery and performance of
the Agreement and consummation of the Merger have been taken.
(g) Assuming that there has been due authorization of the
Merger by all necessary corporate and governmental proceedings on the part of
Wayne and that Wayne has taken all action required to be taken by it prior to
the Effective Time, upon the appropriate filing of the Certificates of Merger in
respect of the Merger with the New Jersey Secretary of State and the Delaware
Secretary of State in accordance with Section 1.6 of the Agreement, the Merger
will become effective at the time of such filing, and upon effectiveness of the
Merger each share of Wayne Common Stock will be converted as provided in Article
II of the Agreement.
(h) No approvals, authorizations, consents or other actions or
filings under federal banking law or New Jersey law ("Approvals") are required
to be obtained by Valley or VNB in order to permit the execution and delivery of
the Agreement by Valley and VNB and the performance by Valley and VNB of the
transactions contemplated thereby other than those Approvals which have been
obtained or those Approvals or consents required to be obtained by Wayne or the
Bank, and Approvals not required or necessary to be obtained on the date hereof.
(i) Except as set forth in the Valley Disclosure Schedule and
in Valley's certificate addressed to us and attached hereto, and other than
ordinary routine litigation incidental to the business of Valley or its
Subsidiaries, we are not aware of any material action, suit or proceeding or
investigation pending or threatened in writing against or affecting the
business, operations, property or financial condition of Valley or any of its
Subsidiaries, at law or in equity, in any court or before any Federal, state,
municipal or other governmental department, commission, board, bureau, agency or
instrumentality, except those which, if decided adversely to Valley or any of
its Subsidiaries, would not have a material adverse effect on Valley and its
Subsidiaries, taken as a whole; provided, however, we are not counsel to Valley
or its Subsidiaries in certain litigation and with respect to any such
litigation we are relying upon the representation and warranty of Valley made in
Section 4.10 of the Agreement with respect to material litigation and on
Valley's certificate addressed to us and attached hereto.
(j) The Registration Statement has been declared effective by
the SEC under the 1933 Act and we are not aware that any stop order suspending
the effectiveness has been issued under the 1933 Act or proceedings therefor
initiated or threatened by the SEC.
* * * * * * *
We are not passing upon and do not assume any responsibility
for the accuracy, completeness or fairness of the statements and information
contained in the Proxy Statement/Prospectus and make no representation that we
have independently verified the accuracy, completeness or fairness of such
statements and information, but, without in any way limiting the generality of
the foregoing, based upon our review of the Proxy Statement/Prospectus (i) the
Proxy Statement/Prospectus (except for financial statements and other tabular
financial information, and other financial and statistical data and information,
as to which we express no opinion) complies as to form in all material respects
with the 1933 Act and the applicable laws and regulations thereunder, (ii) no
facts have come to our attention that caused us to believe that (except for
financial statements and other tabular financial information, as to which we do
not express any belief) the Proxy Statement/Prospectus on the date of the
mailing thereof and on the date of the meeting of stockholders of Wayne at which
the Agreement was approved, contained any untrue statement of a material fact
with respect to Valley or omitted to state a material fact with respect to
Valley necessary in order to make the statements therein with respect to Valley,
in light of the circumstances under which they were made, not misleading.
* * * * * * *
In rendering their opinion, counsel to Valley (A) may, to the
extent they deem proper and so specify in their opinion, rely upon the opinion
of other counsel as to matters involving the application of laws of any
jurisdiction other than the United States or the State of New Jersey, or may
exclude from their opinion the substance included in the opinions of other
counsel given directly to Wayne and (B) may rely, as to matters of fact, on
certificates of responsible officers of Valley, VNB, or other Subsidiaries of
Valley and public officials; provided copies of any such opinions or
certificates are delivered to Wayne together with the opinion to be rendered
hereunder by counsel to Valley. Counsel to Valley may assume that any agreement
is the valid and binding obligation of any parties to such agreement other than
Valley. As to matters of fact, counsel to Valley may also rely upon the
representations and warranties made by Valley to Wayne in the Agreement as
though such representations and warranties were made directly to counsel.
Counsel to Valley may also rely upon the genuineness of signatures and the
authenticity of copies.
1As will be in effect after the merger.
