AGREEMENT AND PLAN OF MERGER
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Exhibit
2.1
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AGREEMENT
AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF
MERGER, dated as of March 19, 2008 (this “Agreement”),
is among Valley National Bancorp, a New Jersey corporation and registered bank
holding company (“Valley”)
and Greater Community Bancorp, a New Jersey corporation and registered bank
holding company (“Greater
Community”).
RECITALS
Valley
desires to acquire Greater Community, and Greater Community’s Board of Directors
has determined, based upon the terms and conditions hereinafter set forth, that
the acquisition is in the best interests of Greater Community and its
shareholders. The acquisition will be accomplished by merging Greater
Community into Valley with Valley as the surviving corporation and, at the same
time, merging Greater Community Bank, a New Jersey state-chartered commercial
bank (“CB”) and
wholly-owned subsidiary of Greater Community into Valley National Bank, a
national banking association (“VNB”) and
wholly-owned subsidiary of Valley, with VNB as the surviving bank, and Greater
Community shareholders receiving the consideration hereinafter set
forth. The Boards of Directors of Greater Community and Valley have
duly adopted and approved this Agreement, and the Board of Directors of Greater
Community has directed that it be submitted to its shareholders for
approval. The Board of Directors of each of CB and VNB shall approve
the Bank Merger (as hereinafter defined) promptly after this Agreement is
executed.
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), Greater Community shall be merged with and into Valley (the “Merger”)
in accordance with the New Jersey Business Corporation Act (the “NJBCA”)
and Valley shall be the surviving corporation (the “Surviving
Corporation”). Immediately following the Effective Time, CB
shall be merged with and into VNB as provided in Section 1.7
hereof.
1.2. Effect of
the Merger. At the Effective
Time, the Surviving Corporation shall be considered the same business and
corporate entity as each of Valley and Greater Community and thereupon and
thereafter, all the property, rights, privileges, powers and franchises of each
of Valley and Greater Community 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 Valley and Greater
Community and shall have succeeded to all of each of their relationships, as
fully and to the same extent as if such property, rights, privileges, powers,
franchises, debts, liabilities, obligations, duties and relationships had been
originally acquired, incurred or entered into by the Surviving
Corporation. In addition, any reference to either Valley or Greater
Community in any contract or document, whether executed or taking effect before
or after the Effective Time, shall be considered a reference to the Surviving
Corporation if not inconsistent with the other provisions of the contract or
document; and any pending action or other judicial proceeding to which either of
Valley or Greater Community is a party shall not be deemed to have abated or to
have discontinued by reason of the Merger, but may be prosecuted to final
judgment, order or decree in the same manner as if the Merger had occurred; or
the Surviving Corporation may be substituted as a party to such action or
proceeding, and any judgment, order or decree may be rendered for or against it
that might have been rendered for or against either of Valley or Greater
Community if the Merger had not occurred.
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 bylaws of the Surviving Corporation until otherwise amended as provided by
law.
1.5. Directors
and Officers. Subject to
Section 5.15(d) hereof, the directors and officers of Valley as of the Effective
Time shall continue as the directors and officers of the Surviving
Corporation.
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 00000, on a date (the “Closing
Date”) which shall be on the last day of the month which is ten business
days or more 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), with the exact date determined by
Valley upon written notice to Greater Community (the “Closing
Notice”). Simultaneous with or immediately following the
Closing, Valley and Greater Community shall cause to be filed a certificate of
merger, in form and substance satisfactory to Valley and Greater Community, with
the Department of Treasury of the State of New Jersey (the “Certificate of
Merger”). The Certificate of Merger shall specify as the
“Effective
Time” of the Merger a date and time following the Closing agreed to by
Valley and Greater Community (which date and time the parties currently
anticipate will be the close of business on the Closing Date).
1.7. The Bank
Merger. Immediately
following the Effective Time, CB shall be merged with and into VNB (the “Bank
Merger”) in accordance with the provisions of the National Bank Act and,
to the extent applicable, New Jersey Banking Act of 1948 (the “Banking
Act”) and the regulations of the New Jersey Department of Banking and
Insurance (the “Department”),
and VNB shall be the surviving bank (the “Surviving
Bank”). Upon the consummation of the Bank Merger, the separate
existence of CB shall cease and the Surviving Bank shall be considered the same
business and corporate entity as each of CB and VNB and all of the property,
rights, privileges, powers and franchises of each of CB and VNB shall vest in
the Surviving Bank and the Surviving Bank shall be subject to and be deemed to
have assumed all of the debts, liabilities, obligations and duties of each of CB
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, liabilities, 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 CB shall be the officers and employees of the
Surviving Bank with such additions as officers as the Board of Directors of VNB
shall determine, and the directors of VNB shall be the directors of the
Surviving Bank. Within two weeks of the date of execution of this
Agreement, Greater Community and Valley shall cause the Boards of Directors of
CB and VNB, respectively to approve a separate merger agreement (the “Bank Merger
Agreement”) in substantially the form of Exhibit A, annexed
hereto, and cause the Bank Merger Agreement to be executed and delivered to the
Office of the Comptroller of the Currency (the “OCC”) and
the Department for approval of the Bank Merger.
ARTICLE
II
CONVERSION
OF GREATER COMMUNITY COMMON STOCK
Each
share of common stock, $0.50 par value per share, of Greater Community (“Greater Community
Common Stock”) issued and outstanding immediately prior to the Effective
Time, including, without limitation any shares of restricted Common Stock issued
and outstanding pursuant to Greater Community’s 2006 Long-Term Stock
Compensation Plan, 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 Greater Community Common Stock; Exchange Ratio; Cash in Lieu of Fractional
Shares. (a) At
the Effective Time, subject to the other provisions of this Section 2.1 and Section 2.2, each
share of Greater Community Common Stock issued and outstanding immediately prior
to the Effective Time (other than Excluded Shares (as such term is hereinafter
defined)), shall by virtue of the Merger and without any action on the part of
Greater Community, Valley or the holder thereof, cease to be outstanding and
shall be converted into and become the right to receive, (i) 0.95 shares (the
“Exchange
Ratio”) of no par value common stock of Valley (“Valley Common
Stock”) plus (ii) 0.10 of a warrant to purchase Valley Common Stock (the
“Warrants”)
at a price per share equal to the Average Closing Price plus $2.00 per share
(the “Exercise
Price”). Each Warrant shall be exercisable for a period
beginning two years after the Effective Time and ending seven years from the
Effective Time in accordance with the warrant agreement (the “Warrant
Agreement”) and form of Warrant attached hereto as Exhibit
B. No fractional shares of Valley Common Stock will be issued,
and in lieu thereof, each holder of Greater Community 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 Closing Price
as defined below. No
fractional Warrants shall be issued. In lieu of fractional Warrants,
Valley shall pay to each Greater Community shareholder who would otherwise be
entitled to receive a fractional Warrant an amount in cash equal to (A) the fair
market value of the Warrant as agreed by the respective Chief Executive Officers
of Valley and Greater Community, based on all relevant factors, including the
Black-Scholes model, which model shall take into account a discount with regard
to the lack of exercisability of the Warrant for the first two years, multiplied
by (B) the fraction of a Warrant such Greater Community shareholder would
otherwise have been entitled to receive. For purposes of this Section 2.1, the
following terms shall have the following meanings:
(i) “Closing
Price” shall mean the closing sale price of Valley Common Stock on a
Trading Day as supplied by the New York Stock Exchange (as reported in The Wall Street Journal or,
if not reported thereby, another mutually agreed to authoritative
source).
(ii) “Trading
Day” shall mean a day for which a Closing Price is so
supplied.
(iii) “Average Closing
Price” shall mean the average of the Closing Prices on the ten (10)
Trading Days immediately preceding the date which is five (5) Trading Days prior
to the Closing Date.
(b) At
the Effective Time, all shares of Greater Community Common Stock held by Greater
Community in its treasury or owned by Valley or by any of Valley’s Subsidiaries
(other than shares held as trustee or in a fiduciary capacity and shares held as
collateral on or in lieu of a debt previously contracted) (“Excluded
Shares”) shall be canceled and shall cease to exist and no shares of
Valley Common Stock or Warrants shall be delivered in exchange
therefor.
(c)
On and after the Effective Time, holders of certificates which immediately prior
to the Effective Time represented outstanding shares of Greater Community Common
Stock (the “Certificates”)
shall cease to have any rights as shareholders of Greater Community, except the
right to receive the consideration set forth in this Section 2.1 for each
such share held by them. The Valley Common Stock and Warrants which any one
Greater Community shareholder may receive pursuant to this Section 2.1 is
referred to herein as the “Merger
Consideration” and total number of Valley Common Stock and Warrants which
all of Greater Community shareholders are entitled to receive pursuant to this
Section 2.1 is
referred to herein as the “Aggregate Merger
Consideration”.
(d) Notwithstanding
any provision herein to the contrary, if, during the period from the date hereof
to the Effective Time, the shares of Valley Common Stock shall be changed into a
different number or class of shares by reason of any reclassification,
recapitalization, split-up, combination, exchange of shares or readjustment, or
a stock dividend thereon shall be declared with a record date within said
period, appropriate adjustments shall be made to the Exchange Ratio and the
Warrants, if necessary, to provide the Greater Community shareholders with the
equivalent value of the Merger Consideration set forth in Section
2.1.
2.2 Exchange
of Shares. (a) Greater
Community and Valley hereby appoint American Stock Transfer and Trust Company as
the exchange agent (the “Exchange
Agent”) for purposes of effecting the conversion of Greater Community
Common Stock. As soon as practicable after the Effective Time, the
Exchange Agent shall mail to each holder of record (a “Record
Holder”) a Certificate or Certificates, a letter of transmittal in form
mutually agreed upon by Valley
and Greater Community (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 the Valley Common Stock and
Warrants (and cash in lieu of fractional shares and Warrants) 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 completed and 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 bond as
may be required in each case by Valley. Notwithstanding the time of
surrender of the Certificates, Record Holders shall be deemed shareholders 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 and
Warrants. (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
Greater Community of the shares of Greater Community 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.
2.3 Stock
Options. (a) All options which may be exercised for
issuance of Greater Community Common Stock (each, a “Stock
Option” and collectively the “Stock
Options”) are described in the Greater
Community Disclosure Schedule and are issued and outstanding pursuant to
the Greater Community stock option plans described in the Greater
Community Disclosure Schedule (collectively, the
“Greater
Community Stock Option Plans”) and the forms of agreements pursuant to
which such Stock Options were granted (each, an “Option Grant
Agreement”). True and complete copies of Greater Community’s
Stock Option Plans relating to outstanding Stock Options will be delivered to
Valley promptly after execution of this Agreement. At the Effective Time, each
Stock Option which is outstanding and unexercised immediately prior thereto,
whether or not then vested or exercisable, shall be canceled and all rights
thereunder shall be extinguished and the holder thereof shall only be entitled
to receive the consideration set forth in Section
2.3(b).
(b) Holders
of unexercised Greater Community Stock Options will be entitled to receive, in
cancellation of their Stock Options, a cash payment from Greater Community
immediately prior to the Effective Time, in an amount equal to the product of
(A) the number of shares of Greater Community Common Stock into which such Stock
Options are convertible and (B) the excess, if any, of (x) the sum of (i) the
Average Closing Price times the Exchange Ratio, plus (ii) the fair market value
of 0.10 of a Warrant, based on all relevant factors, including the Black-Scholes model,
which model shall take into account a discount with regard to the lack of
exercisability of the Warrant for the first two years, over (y) the exercise
price per share provided for in such Greater Community Stock Option (the “Cash Option
Payment”), which cash payment shall be treated as compensation and shall
be net of any applicable federal and state withholding taxes. At the
time of receipt of such cash payment, each holder of a Greater Community Stock
Option shall acknowledge in writing, in a form reasonably satisfactory to Valley
that such cash payment is in full satisfaction of such holder’s rights under
such Greater Community Stock Option.
2.4. 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.
2.5. Tax
Consequences. It is intended that the Merger shall constitute
reorganization within the meaning of Section 368(a) of the Code and that this
Agreement shall constitute a "plan of reorganization" for purposes of Section
368 of the Code.
2.6. Changes
in Structure. As executed by the parties, this Agreement
contemplates the merger of Greater Community into Valley and the merger of CB
into VNB. In the event that (a) prior to the date on which the Proxy
Statement-Prospectus (as hereinafter defined) is mailed to Greater Community’s
shareholders, Valley proposes an alternative structure for the transactions
contemplated hereby, and (b) such alternate structure does not adversely affect
Greater Community’s shareholders in any financial respect or in any other
material respect, then Greater Community shall negotiate in good faith with
Valley and shall use commercially reasonable efforts to restructure the
transactions contemplated hereby in accordance with such proposal.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF GREATER COMMUNITY
References
herein to “Greater
Community 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 Greater
Community to Valley or will be delivered pursuant to Section 5.11 by
Greater Community to Valley. Greater Community hereby represents and
warrants to Valley as follows:
3.1. Corporate
Organization. (a)
Greater Community is a corporation duly organized, validly existing and in good
standing under the laws of the State of New Jersey. Greater Community
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 and in good standing 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
or in good standing would not have, or would not reasonably be expected to have,
either individually or in the aggregate, a Material Adverse Effect (as
hereinafter defined) on Greater Community. Greater Community is
registered as a bank holding company under The Bank Holding Company Act of 1956
(the “BHCA”).
As used
in this Agreement, the term “Material
Adverse Effect” means, with respect to Valley or Greater Community, as
the case may be, an effect which (i) is materially adverse to the business,
results of operations, assets or financial condition of such party and its
Subsidiaries on a consolidated basis, or (ii) materially impairs the ability of
such party and its Subsidiaries to consummate the transactions contemplated
hereby on a timely basis; provided,
however,
that “Material
Adverse Effect” shall not be deemed to include the impact of (a) changes
in laws and regulations affecting banks or thrift institutions or their holding
companies generally, or interpretations thereof by courts or governmental
agencies, (b) changes in GAAP or regulatory accounting principles generally
applicable to financial institutions and their holding companies, (c) actions
and omissions of a party hereto (or any of its Subsidiaries) taken with the
prior written consent of the other party, (d) the impact of the announcement of
this Agreement and the transactions contemplated hereby, and compliance with
this Agreement on the business, financial condition or results of operations of
the parties and their respective Subsidiaries, including the expenses (inclusive
of the change in control, severance and related payments to be made to employees
at or subsequent to the Closing Date) incurred by the parties hereto in
consummating the transactions contemplated by this Agreement (and any loss of
personnel subsequent to the date of this Agreement), (e) changes in national or
international political or social conditions including the engagement by the
United States in hostilities, whether or not pursuant to the declaration of a
national emergency or war, or the occurrence of any military or terrorist attack
upon or within the United States, or any of its territories, possessions or
diplomatic or consular offices or upon any military installation, equipment or
personnel of the United States, unless it uniquely and disproportionately
affects either or both of the parties or any of their Subsidiaries, (f) any
change in the value of the securities or loan portfolio, or any change in the
value of the deposits or borrowings, of Valley or Greater Community, or any of
their Subsidiaries, respectively, resulting from a change in interest rates
generally, or (g) changes relating to securities markets in general (including
any disruption thereof and any decline in the price of any security or market
index).
(b) All
of the Subsidiaries of Greater Community are listed in the Greater
Community Disclosure Schedule. For purposes of this Agreement,
a “Subsidiary”
shall mean any corporation, partnership, joint venture, limited liability
company or other entity of which at least a majority of the capital stock or
other ownership interest having ordinary voting power to elect a majority of the
board of directors or other persons performing similar functions are at the time
directly or indirectly owned by such person. Each Subsidiary of
Greater Community is duly organized, validly existing and in good standing under
the laws of its state of incorporation or organization. CB is a
commercial bank chartered under the laws of the State of New Jersey whose
deposits are insured by the Federal Deposit Insurance Corporation (the
“FDIC”)
to the fullest extent permitted by law. Each Subsidiary of Greater
Community has the 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 Greater Community. The Greater
Community Disclosure Schedule sets forth true and complete copies of the
certificate of incorporation, articles of association, bylaws or other
comparable formation and governing documents (together the “Charter
Documents”) of Greater Community and of each Greater Community Subsidiary
as in effect on the date hereof. Except as set forth in the Greater
Community Disclosure Schedule, Greater Community 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. (a) The
authorized capital stock of Greater Community consists of 20,000,000 shares of
Greater Community Common Stock and 1,000,000 shares of no par value preferred
stock (the “Greater Community
Preferred Stock”). As of the date hereof, there were 8,740,341
shares of Greater Community Common Stock issued and outstanding, and no shares
of Common Stock issued and held in the treasury and no shares of Greater
Community Preferred Stock issued and outstanding. All issued and
outstanding shares of Greater Community Common Stock, and all issued and
outstanding shares of capital stock or other securities of each Greater
Community Subsidiary, have been duly authorized and validly issued, are fully
paid, and nonassessable. The authorized capital stock of CB consists
of 380,000 shares of common stock, $5.00 par value per share. As of
the date hereof, there were 380,000 shares of CB common stock
outstanding. All of the outstanding shares of capital stock of each
Greater Community Subsidiary are owned by Greater Community and are free and
clear of any liens, encumbrances, charges, restrictions or rights of third
parties. Except as set forth in the Greater
Community Disclosure Schedule, neither Greater Community nor any Greater
Community 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 Greater
Community or any Greater Community 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.
(b) The
Greater
Community Disclosure Schedule contains a list setting forth as of the
date of this Agreement (i) all outstanding Greater Community Stock Options, the
names of the option holders, the date each such option was granted, the number
of shares subject to each such option, the expiration date of each such option,
any vesting schedule with respect to an option which is not yet fully vested,
and the price at which each such option may be exercised and (ii) comparable
information for any other outstanding awards under the Greater Community Stock
Option Plans.
(c) The
Greater
Community Disclosure Schedule lists the name, jurisdiction of
incorporation or organization, authorized and outstanding shares of capital
stock and record and beneficial owners of such capital stock for each Subsidiary
of Greater Community. Except as set forth in the Greater
Community Disclosure Schedule, Greater Community owns, directly or
indirectly, all of the issued and outstanding shares of capital stock of or all
other equity interests in each of Greater Community’s Subsidiaries, free and
clear of any lien, claim, charge, mortgage, pledge, security interest,
restriction, encumbrance or security interest (“Liens”),
and all of such shares are duly authorized, validly issued, fully paid,
nonassessable and free of preemptive rights. Neither Greater
Community nor any Subsidiary thereof has or is bound by any right with respect
to the capital stock or any other equity security of any Subsidiary of Greater
Community.
(d) Except
(i) as disclosed in the Greater
Community Disclosure Schedule, (ii) for Greater Community’s ownership in
its Subsidiaries set forth in the Greater
Community Disclosure Schedule, (iii) for securities held for the benefit
of third parties in trust accounts, managed accounts and the like for the
benefit of customers and (iv) for securities acquired after the date of this
Agreement in satisfaction of debts previously contracted in good faith, neither
Greater Community nor any of its Subsidiaries beneficially owns or controls,
directly or indirectly, any shares of stock or other equity interest in any
corporation, firm, partnership, joint venture or other entity.
3.3. Authority;
No Violation.
(a) Subject
to the approval of this Agreement and the transactions contemplated hereby by
the shareholders of Greater Community, and subject to the parties obtaining all
necessary regulatory approvals, Greater Community and CB 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. On or prior to the date of this Agreement, Greater
Community’s Board of Directors, by resolutions duly adopted by unanimous vote of
those voting at a meeting duly called and held, (i) determined that this
Agreement and the Merger are fair to and in the best interests of Greater
Community and its shareholders and declared the Merger and the other
transactions contemplated hereby to be advisable, (ii) approved this Agreement,
the Merger and the other transactions contemplated hereby and (iii) recommended
that the shareholders of Greater Community approve this Agreement at the Greater
Community Shareholders Meeting. The execution and delivery of the
Bank Merger Agreement has been duly and validly approved by the Board of
Directors of CB. Except for the approvals described in paragraph (b)
below, no other corporate proceedings on the part of Greater Community or CB are
necessary to consummate the transactions contemplated hereby. This
Agreement has been duly and validly executed and delivered by Greater Community
and CB, and constitutes valid and binding obligations of Greater Community and
CB, enforceable against Greater Community and CB in accordance with its
terms.
(b) Neither
the execution and delivery of this Agreement by Greater Community and CB, nor
the consummation by Greater Community and CB of the transactions contemplated
hereby in accordance with the terms hereof, or compliance by Greater Community
and CB with any of the terms or provisions hereof, will (i) violate any
provision of Greater Community’s or CB’s Charter Documents, (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 Greater Community or CB or any of their respective
properties or assets, or (iii) except as set forth in the Greater
Community 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 Greater Community or CB 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
Greater Community or CB 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 Greater Community, 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 Office of the Comptroller of the Currency
(the “OCC”),
the Department, the Board of Governors of the Federal Reserve System (the “FRB”),
the Securities and Exchange Commission (the “SEC”),
applicable state securities bureaus or commissions and the shareholders of
Greater Community, or as listed in the Greater
Community Disclosure Schedule, 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 Greater Community or CB in connection with (x) the
execution and delivery by Greater Community and CB of this Agreement and (y) the
consummation by Greater Community and CB of the transactions contemplated hereby
and (z) the execution and delivery by CB of the Bank Merger Agreement and the
consummation by CB of the transactions contemplated
thereby.
3.4. Financial
Statements.
(a) Greater
Community’s Annual Reports on Form 10-K filed with the SEC under the Securities
Exchange Act of 1934 (the “Exchange
Act”) and available on the SEC’s XXXXX system set forth the consolidated
statements of financial condition of Greater Community as of December 31,
2007, 2006 and 2005, and the related consolidated statements of income,
shareholders’ equity and cash flows for the periods ended December 31 in each of
the three years 2005 through 2007, in each case accompanied by the audit report
of Greater Community’s independent public accountants (collectively, the “Greater Community
Financial Statements”). The Greater Community 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 Greater Community as of the respective dates
set forth therein, and the related consolidated statements of income, changes in
shareholders’ equity and of cash flows (including the related notes, where
applicable) fairly present the results of the consolidated operations and
changes in shareholders’ equity and of cash flows of Greater Community for the
respective fiscal periods set forth therein.
(b) The
books and records of Greater Community 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 set forth in the Greater
Community Disclosure Schedule and except to the extent reflected,
disclosed or reserved against in the Greater Community Financial Statements, as
of December 31, 2007, neither Greater Community nor any of its Subsidiaries had
any liabilities, whether absolute, accrued, contingent or otherwise material to
the business, operations, assets or financial condition of Greater Community or
any of its Subsidiaries and which are required by GAAP to be disclosed in the
Greater Community Financial Statements. Except as set forth in the
Greater
Community Disclosure Schedule, since December 31, 2007 and to
the date hereof, neither Greater Community 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.
(d) The
Greater
Community Disclosure Schedule includes a copy of Greater Community’s
Consolidated Financial Statements for Bank Holding Companies (on Form FRY 9C) as
of December 31, 2007 which includes information regarding “off-balance sheet
arrangements” effected by Greater Community.
(e) McGladrey
and Xxxxxx LLP, which has expressed its opinion with respect to the financial
statements of Greater Community and its subsidiaries (including the related
notes), and to the knowledge of Greater Community, is and has been throughout
the periods covered by such financial statements (x) a registered public
accounting firm (as defined in Section 2(a)(12) of the Xxxxxxxx-Xxxxx Act of
2002 “Xxxxxxxx-Xxxxx
Act”), (y) “independent” with respect to Greater Community within the
meaning of the rules of applicable bank regulatory authorities and the Public
Company Accounting Oversight Board. The Greater
Community Disclosure Schedule lists all non-audit services performed by
McGladrey and Xxxxxx LLP (or any other of its then independent public
accountants) for Greater Community and its Subsidiaries since January 1,
2005.
(f) Greater
Community maintains accurate books and records reflecting its assets and
liabilities and maintains proper and adequate internal accounting controls which
provide reasonable assurance that (i) transactions are executed with
management’s authorization; (ii) transactions are recorded as necessary to
permit preparation of the consolidated financial statements of Greater Community
and to maintain accountability for Greater Community’s consolidated assets;
(iii) access to Greater Community’s assets is permitted only in accordance with
management’s authorization; (iv) the reporting of Greater Community’s assets is
compared with existing assets at regular intervals; and (v) accounts, notes and
other receivables and inventory are recorded accurately, and proper and adequate
procedures are implemented to effect the collection thereof on a current and
timely basis.
3.5. Brokerage
Fees; Financial Advisor. Other than
Sandler X’Xxxxx & Partners, L.P. (“Sandler”)
and The Xxxxxxxx Group (collectively, the “Investment
Bankers”), neither Greater Community 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 each of Greater Community’s agreements with the
Investment Bankers are set forth in the Greater
Community Disclosure Schedule. Sandler has delivered to
Greater Community its oral opinion with respect to the fairness, from a
financial point of view, of the Aggregate Merger Consideration to the
shareholders of Greater Community in the Merger. Other than pursuant
to the agreements with the Investment Bankers, 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 Greater Community or any of its
Subsidiaries.
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 Greater Community and its Subsidiaries on a consolidated
basis since December 31, 2007 and to Greater Community’s knowledge, no facts or
conditions exist which Greater Community believes will cause or is likely to
cause such a material adverse change in the future.
(b) Except
as set forth in the Greater
Community Disclosure Schedule, neither Greater Community nor any of its
Subsidiaries has taken or permitted any of the actions set forth in Section 5.2 hereof
between December 31, 2007 and the date hereof and Greater Community and the
Greater Community Subsidiaries have conducted their business only in the
ordinary course, consistent with past practice.
3.7. Legal
Proceedings. Except as
disclosed in the Greater
Community Disclosure Schedule, neither Greater Community nor any of its
Subsidiaries is a party to any, and there are no pending or, to Greater
Community’s knowledge, threatened, legal, administrative, arbitral or other
proceedings, claims, actions or governmental investigations of any nature
against Greater Community or any of its Subsidiaries. Except as
disclosed in the Greater
Community Disclosure Schedule, neither Greater Community nor any of its
Subsidiaries is a party to any order, judgment or decree entered against Greater
Community or any Greater Community Subsidiary in any lawsuit or
proceeding.
3.8. Taxes and Tax
Returns.
(a) Except
as set forth in the Greater
Community Disclosure Schedule, Greater Community, CB and each of their
Subsidiaries have timely filed (and until the Effective Time will so file) all
Returns required to be filed by them in respect of any Taxes (which such Returns
which have already been filed were and continue to be, true, correct and
complete in all material respects and which such Returns which will be filed
will be true, correct and complete in all material respects when filed) and, ,
each has duly paid (and until the Effective Time will so pay) all such Taxes
shown as due on such Returns, other than Taxes or other charges which are being
contested in good faith (and disclosed to Valley in writing). Except
as set forth in the Greater
Community Disclosure Schedule, Greater Community, CB and each of their
Subsidiaries have established (and until the Effective Time will establish) on
their books and records reserves for the payment of all Taxes not yet due and
payable, but incurred in respect of Greater Community, CB or any Subsidiary
through such date, which reserves are adequate for such
purposes. Except as set forth in the Greater
Community Disclosure Schedule, the federal income tax
Returns of Greater Community, CB and each of their 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 Greater
Community Disclosure Schedule, the applicable state income and local tax
returns of Greater Community, CB and each of their 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 each of Greater Community and CB, 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
Greater Community, CB or any of their Subsidiaries, nor has Greater Community,
CB or any of their 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 Greater
Community Disclosure Schedule, neither Greater Community, CB nor any of
their 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 (except agreements
between and/or among Greater Community, CB and/or any of their Subsidiaries;
(iii) is required to include in income any adjustment pursuant to Section 481(a)
of the Internal Revenue Code of 1986, as amended (the “Code”), by
reason of a voluntary change in accounting method initiated by Greater
Community, CB or any Subsidiary (nor does Greater Community or CB have any
knowledge that the IRS has proposed any such adjustment or change of accounting
method); (iv) has taken or agreed to take any action, has failed to take any
action, or knows of any fact, agreement, plan or other circumstances that could
prevent the Merger from qualifying as a “reorganization” within the meaning of
Section 368(a) of the Code; (v) has been included in any “consolidated,”
“unitary” or “combined” Return (other than the Returns which include Greater
Community, CB and each of their Subsidiaries) provided for under the laws of the
United States, any foreign jurisdiction or any state or locality; (vi) has
participated in or otherwise engaged in any transaction described in Treasury
Regulations Section 301.6111-2(b)(2) or any “Reportable Transaction” within the
meaning of Treasury Regulations Section 1.6011-4(b); (vii) is a party
to any agreement or arrangement that would result, separately or in the
aggregate, in the actual or deemed payment by Greater Community, CB or any of
their Subsidiaries of any “excess parachute payments” within the meaning of
Section 280G of the Code; and/or (viii) has received any claim by a Governmental
Entity in a jurisdiction where it does not file Returns that it is or may be
subject to taxation by that jurisdiction.
(c) Except
as set forth in the Greater
Community Disclosure Schedule, (i) Greater Community, CB and each of
their Subsidiaries has complied with all applicable laws, rules and regulations
relating to the payment and withholding of Taxes and has, within the time and in
the manner provided by law, withheld and paid over to the proper Governmental
Entities all amounts required to be so withheld and paid over under applicable
laws; and (ii) Greater Community, CB and each of their Subsidiaries has
maintained such records in respect to each transaction, event and item
(including as required to support otherwise allowable deductions and losses) as
are required under applicable Tax law, except where the failure to comply or
maintain records under (i) or (ii) will not result in a Material Adverse Effect
on Greater Community.
(d) Greater
Community has made available to Valley correct and complete copies of: (i) all
material Returns filed within the past three years by Greater Community, CB and
each of their Subsidiaries; (ii) all audit reports, letter rulings, technical
advice memoranda and similar documents issued by a Governmental Entity within
the past three years relating to Taxes due from or with respect to Greater
Community, CB or any of its Subsidiaries; and (iii) any closing letters or
agreements entered into by Greater Community, CB or any of their Subsidiaries
with any Governmental Entities within the past five years with respect to
Taxes.
(e) For
purposes of this Agreement, the terms: (i) “Tax” or
“Taxes” means: (A) any and all
taxes, customs, duties, tariffs, imposts, charges, deficiencies, assessments,
levies or other like governmental charges, including, without limitation,
income, gross receipts, excise, real or personal property, ad valorem, value
added, estimated, alternative minimum, stamp, sales, withholding, social
security, occupation, use, service, service use, license, net worth, payroll,
franchise, transfer and other recording taxes and charges, imposed by the IRS or
any other taxing authority (whether domestic or foreign, including, without
limitation, any state, county, local or foreign government or any subdivision or
taxing agency thereof (including a United States possession)), whether computed
on a separate, consolidated, unitary, combined or any other basis and such term
shall include any interest, fines penalties or additional amounts attributable
to, or imposed upon, or with respect to, any such amounts, (B) any liability for
the payment of any amounts described in (A) as a result of being a member of an
affiliated, consolidated, combined, unitary, or similar group or as a result of
transferor or successor liability, and (C) any liability for the payment of any
amounts as a result of being a party to any tax sharing agreement or as a result
of any obligation to indemnify any other person with respect to the payment of
any amounts of the type described in (A) or (B); (ii) “Return”
means any return, declaration, report, claim for refund, or information return
or statement relating to Taxes, including any schedule or attachment thereto,
and including any amendment thereof, which is required to be filed with a
Governmental Entity; and (iii) “Governmental
Entity” means any (A) Federal,
state, local, municipal or foreign government, (B) governmental,
quasi-governmental authority (including any governmental agency, commission,
branch, department or official, and any court or other tribunal) or body
exercising, or entitled to exercise, any governmentally-derived administrative,
executive, judicial, legislative, police, regulatory or taxing authority, or (C)
any self-regulatory organization, administrative or regulatory agency,
commission or authority.
3.9. Employee Benefit
Plans.
(a) Except
as disclosed in the Greater
Community Disclosure Schedule, neither Greater Community 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 “Greater Community
Pension Plans”), “employee welfare benefit plan”, within the meaning of
Section 3(1) of ERISA (the “Greater Community
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 Greater Community 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) Greater
Community has delivered to Valley in the Greater
Community Disclosure Schedule a complete and accurate copy of each of the
following with respect to each of the Greater Community Pension Plans and
Greater Community 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 or opinion letter, if any; (iv) most recent
actuarial report, if any; and (v) two most recent annual reports on Form 5500,
if any.
(c) The
present value of all accrued benefits both vested and non-vested under each of
the Greater Community 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 Greater Community Pension Plan’s actuary, did not exceed the
then current value of the assets of such plans allocable to such accrued
benefits. To Greater Community’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) Except
as disclosed on the Greater
Community Disclosure Schedule, during the last six years, the Pension
Benefit Guaranty Corporation (the “PBGC”) has
not asserted any claim for liability against Greater Community 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 Greater Community Pension Plan have been
paid. All contributions required to be made to each Greater Community
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 Greater
Community and its Subsidiaries which have not been paid have been properly
recorded on the books of Greater Community and its Subsidiaries.
(f) Except
as disclosed on the Greater
Community Disclosure Schedule, each of the Greater Community Pension
Plans, the Greater Community Welfare Plans and each other plan and arrangement
identified on the Greater
Community Disclosure Schedule has been operated in compliance in all
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 or opinion letter, which takes into account the Economic
Growth and Tax Relief Reconciliation Act and (to the extent it mandates
currently applicable requirements) subsequent legislation, with respect to each
of the Greater Community Pension Plans and Greater Community is not aware of any
fact or circumstance which would disqualify any such plan).
(g) To
Greater Community’s knowledge, except as disclosed on the Greater
Community Disclosure Schedule, 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 Greater Community Welfare Plans or Greater
Community Pension Plans.
(h) No
Greater Community 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 Greater Community Pension
Plans.
(i) To
Greater Community’s knowledge, except as disclosed on the Greater
Community Disclosure Schedule, no “accumulated funding deficiency”,
within the meaning of Section 412 of the Code, has been incurred with
respect to any of the Greater Community Pension Plans.
(j) There
are no pending, or, to Greater Community’s knowledge, threatened or anticipated
claims (other than routine claims for benefits) by, on behalf of or against any
of the Greater Community Pension Plans or the Greater Community Welfare Plans,
any trusts related thereto or any other plan or arrangement identified in the
Greater
Community Disclosure Schedule.
(k) Except
as disclosed in the Greater
Community Disclosure Schedule, no Greater Community 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 Greater Community Pension
Plan.
(l) Except
with respect to customary health, life and disability benefits or as disclosed
in the Greater
Community Disclosure Schedule, there are no unfunded benefits obligations
which are not accounted for by reserves shown on the Greater Community Financial
Statements and established under GAAP, or otherwise noted on such financial
statements.
(m) With
respect to each Greater Community Pension and Welfare Plan that is funded wholly
or partially through an insurance policy, there will be no liability of Greater
Community or any Greater Community 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 or at the Effective Time.
(n) Except
as may hereafter be expressly agreed to by Valley in writing or as disclosed on
the Greater
Community Disclosure Schedule, the consummation of the transactions
contemplated by this Agreement will not (i) entitle any current or former
employee of Greater Community or any Greater Community 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 Greater Community Pension Plan or Greater Community Welfare
Plan.
(o) Except
for the Greater Community Pension Plans and the Greater Community Welfare Plans,
and except as set forth on the Greater
Community Disclosure Schedule, Greater Community has no deferred
compensation agreements, understandings or obligations for payments or
benefits to any current or former director, officer or employee of Greater
Community or any Greater Community Subsidiary or any predecessor of any of
them. The Greater
Community Disclosure Schedule sets forth (or lists, if previously
delivered to Valley with respect to such items and any supplemental retirement
plan or arrangement): (i) true and complete copies of the deferred compensation
agreements, understandings or obligations with respect to each such current or
former director, officer or employee, and (ii) the most recent actuarial or
other calculation of the present value of such payments or
benefits.
(p) Except
as set forth in the Greater
Community Disclosure Schedule, Greater Community does not maintain or
otherwise pay for life insurance policies (other than group term life policies
on employees) with respect to any director, officer or employee. The
Greater
Community Disclosure Schedule lists each such insurance policy and any
agreement with a party other than the insurer with respect to the payment,
funding or assignment of such policy. To Greater Community’s
knowledge, neither Greater Community nor any Greater Community Pension Plan or
Greater Community Welfare Plan owns any individual or group insurance policies
issued by an insurer which has been found to be insolvent or is in
rehabilitation pursuant to a state proceeding.
(q) Except
as set forth in the Greater
Community Disclosure Schedule, Greater Community does not maintain any
retirement plan for directors. The Greater
Community Disclosure Schedule sets forth the complete documentation and
actuarial evaluation of any such plan.
(r)
Except as set forth in the Greater
Community Disclosure Schedule, Neither Greater Community nor any Greater
Community Subsidiary (i) has taken any action, or has failed to take any action,
that has resulted or could result in the interest and tax penalties specified in
Section 409A of the Code being owed by any employee, former employee, director,
former director or beneficiary or (ii) has agreed to reimburse or indemnify any
employee, former employee, director, former director or beneficiary for any of
the interest and tax penalties specified in Section 409A of the Code that may be
currently due or triggered in the future.
(s) Since
January 1, 2005, neither Greater Community nor any of its Subsidiaries have made
any payments to employees which are not deductible under Section 162(m) of the
Code and consummation of the Merger and the Bank Merger will not cause any
payments to employees made not to be deductible thereunder.
3.10. Reports. Except as set
forth in the Greater
Community Disclosure Schedule, CB has, since January 1, 2005, duly filed
with the Department and the FDIC, and Greater Community has duly filed with the
FRB, in correct form all documentation required to be filed under applicable
laws and regulations, and Greater Community promptly will deliver or make
available to Valley accurate and complete copies of such
documentation. The Greater
Community Disclosure Schedule lists all examinations of CB conducted by
the Department and the FDIC since January 1, 2005 and the dates of any responses
thereto submitted by CB.
3.11. Greater
Community and CB Information. The information
relating to Greater Community and its Subsidiaries to be provided by Greater
Community for inclusion in the Proxy Statement-Prospectus, any filing pursuant
to Rule 165 or Rule 425 under the Securities Act of 1933 (the “Securities
Act”) or Rule 14a-12 under the Exchange Act, or in any other document
filed with any other Governmental Entity in connection herewith, 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 in which
they are made, not misleading.
3.12. Compliance with Applicable
Law.
(a) Except
as set forth in the Greater
Community Disclosure Schedule, each of Greater Community and the Greater
Community 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 Governmental Entity relating to Greater Community or any of its
Subsidiaries, including, without limitation, consumer, community and fair
lending laws (other than where such defaults or non-compliances will not, alone
or in the aggregate, result in a Material Adverse Effect on Greater Community)
and neither Greater Community nor any of the Greater Community Subsidiaries has
received notice of violation of, and Greater Community does not know of any
violations of, any of the above.
(b) Without
limiting the foregoing, to Greater Community’s knowledge (i) CB has complied in
all material respects with the Community Reinvestment Act (“CRA”) and
(ii) no person or group would object to the consummation of this Merger due to
the CRA performance of or rating of CB. Except as listed on the Greater
Community Disclosure Schedule to Greater Community’s knowledge, no person
or group has adversely commented upon CB’s CRA performance.
3.13. Certain
Contracts.
(a) Except
as set forth in the Greater
Community Disclosure Schedule, neither Greater Community nor any of its
Subsidiaries is a party to or is bound by any contract, arrangement, commitment
or understanding (whether written or oral) (i) which is a material contract (as
defined in Item 601(b)(10) of Regulation S-K of the SEC) to be performed in
whole or in part after the date of this Agreement, (ii) which relates to the
incurrence of indebtedness (other than deposit liabilities, advances and loans
from the Federal Home Loan Bank and sales of securities subject to repurchase,
in each case incurred in the ordinary course of business) by Greater Community
or any of its Subsidiaries in the principal amount of $100,000 or more,
including any sale and leaseback transactions (other than sale and leaseback
transactions entered into by Greater Community’s Highland Capital Corp.
Subsidiary (“HCC”) in
the ordinary course of its business consistent with past practice), capitalized
leases and other similar financing transactions, (iii) which grants any right of
first refusal, right of first offer or similar right with respect to any
material assets or properties of Greater Community and its Subsidiaries, (iv)
which provides for material payments to be made by Greater Community or any of
its Subsidiaries upon a change in control thereof, (v) which (A) limits the
freedom of Greater Community or any of its Subsidiaries to compete in any line
of business, in any geographic area or with any person, (B) requires referrals
of business or requires Greater Community or any of its Subsidiaries to make
available investment opportunities to any person on a priority or exclusive
basis or (C) requires Greater Community or any of its Subsidiaries to use any
product or service of another person on an exclusive basis or (vi) which
involved payments by, or to, Greater Community or any of its Subsidiaries in
fiscal year 2007 of more than $500,000 or which could reasonably be expected to
involve payments during fiscal year 2008 of more than $500,000 (other than
pursuant to Loans originated or purchased by Greater Community and its
Subsidiaries in the ordinary course of business consistent with past practice or
leases entered into by HCC in the ordinary course of its business consistent
with past practice). Each contract, arrangement, commitment or
understanding of the type described in this Section 3.13(a), whether or not
publicly disclosed in the Greater Community SEC Reports (as such term is
hereinafter defined) filed prior to the date hereof or set forth in the Greater
Community Disclosure Schedule, is referred to herein as a “Greater Community
Contract.”
(b) Except
as set forth in the Greater
Community Disclosure Schedule, (i) each Greater Community Contract is
valid and binding on Greater Community or its applicable Subsidiary and in full
force and effect, and, to the knowledge of Greater Community, is valid and
binding on the other parties thereto, (ii) Greater Community and each of its
Subsidiaries and, to the knowledge of Greater Community, each of the other
parties thereto, has in all material respects performed all obligations required
to be performed by such party to date under each Greater Community Contract, and
(iii) no event or condition exists which constitutes or, after notice or lapse
of time or both, would constitute a material breach or default on the part of
Greater Community or any of its Subsidiaries or, to the knowledge of Greater
Community, any other party thereto, under any such Greater Community Contract,
except, in each case, where such invalidity, failure to be binding, failure to
so perform or breach or default, individually or in the aggregate, would not
have or reasonably be expected to have a Material Adverse Effect on Greater
Community.
3.14. Properties and
Insurance.
(a) To
Greater Community’s knowledge, and except as set forth in the Greater
Community Disclosure Schedule, Greater Community 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 Greater Community’s consolidated balance sheet as of December 31,
2007, 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 December 31, 2007 either (A) to third parties in arm’s
length transactions or (B) to insiders or to directors or officers of Greater
Community pursuant to the approval of the board of directors of Greater
Community and for fair value), 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 Greater Community 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. Greater Community 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. The Greater
Community Disclosure Schedule lists all leases pursuant to which Greater
Community or any Greater Community Subsidiary occupies any real property and for
each such lease lists annual base rentals, annual add-ons for taxes, maintenance
and the like, the annual increases to the end of the lease, the expiration date
and any option terms.
(b) The
Greater
Community Disclosure Schedule lists all policies of insurance covering
business operations and all insurable properties and assets of Greater Community
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 Greater
Community 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 Greater Community and its Subsidiaries contain records that are accurate in
all material respects of all meetings and other corporate action held of their
respective shareholders and Boards of Directors (including committees of their
respective Boards of Directors).
3.16. Environmental
Matters. Except as set
forth in the Greater
Community Disclosure Schedule:
(a) Neither
Greater Community nor any Greater Community Subsidiary has received any written
notice, citation, claim, assessment, proposed assessment or demand for abatement
alleging that Greater Community or such Greater Community 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 Greater Community and the Greater Community Subsidiaries
taken as a whole. Except as disclosed on the Greater
Community Disclosure Schedule, Greater Community 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 Greater Community
or any Greater Community Subsidiary, as OREO or otherwise, or owned or
controlled by Greater Community or any Greater Community Subsidiary as a trustee
or fiduciary (collectively, “Properties”),
in any manner that violates or, after the lapse of time is reasonably likely to
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 Greater Community.
(b) Greater
Community 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 Greater Community.
(c) To
Greater Community’s knowledge, except as set forth in the Greater
Community Disclosure Schedule, 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 Greater Community or any Greater Community
Subsidiary.
3.17. Reserves.
(a) As
of the date hereof, the reserve for loan and lease losses in the Greater
Community 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.
(b) As
of the date hereof, the reserve for Taxes as calculated under and required under
FIN 48 is adequate for all contingencies and includes all reasonably possible
contingencies.
3.18. No Excess
Parachute Payments. Except as set
forth in the Greater
Community Disclosure Schedule, no officer, director, employee or agent
(or former officer, director, employee or agent) of Greater Community or any
Greater Community 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 Greater Community, a Greater Community 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. Agreements
with Bank Regulators. Except as set forth in the Greater
Community Disclosure Schedule, neither Greater Community nor any Greater
Community 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 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 Greater Community prior to the date of this Agreement, nor
has Greater Community 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. Neither Greater Community nor any Greater Community
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 Greater
Community prior to the date of this Agreement.
3.20 Insider
Loans. The Greater
Community Disclosure Schedule sets forth, as of December 31, 2007, each
loan, extension of credit, or guaranty from Greater Community or any of its
Subsidiaries to any director or executive officer of Greater Community including
(i) the name of the person receiving the benefit of loan, extension of credit or
guaranty, (ii) the outstanding principal amount of such loan or extension of
credit, and (iii) type of loan.
3.21 SEC Documents; Other
Reports; Internal and Disclosure Controls.
(a) Greater
Community has filed all required reports, schedules, registration statements and
other documents, together with amendments thereto, with the SEC since
December 31, 2004 (the “Greater Community
SEC Reports”). As of their respective dates of filing with the
SEC (or, if amended or superseded by a subsequent filing prior to the date
hereof, as of the date of such subsequent filing), the Greater Community SEC
Reports complied, and each such Greater Community SEC Report filed subsequent to
the date hereof will comply, in all material respects with the applicable
requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act,
and did not or will not, as the case may be, contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. There are no outstanding
comments from, or unresolved issues raised by, the SEC with respect to any of
the Greater Community SEC Reports. None of Greater Community’s
Subsidiaries is required to file periodic reports with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act. No executive officer of
Greater Community has failed in any respect to make the certifications required
of him or her under Sections 302 or 906 of the Xxxxxxxx-Xxxxx Act and no
enforcement action has been initiated against Greater Community by the SEC
relating to disclosures contained in any Greater Community SEC
Report.
(b) Greater
Community and each of its Subsidiaries have timely filed all reports,
registrations and statements, together with any amendments required to be made
with respect thereto, that they were required to file since December 31, 2004
with any Governmental Entity (other than the SEC) and have paid all fees and
assessments due and payable in connection therewith. Except for
normal examinations conducted by a Governmental Entity in the regular course of
the business of Greater Community and its Subsidiaries or as set forth in the
Greater
Community Disclosure Schedule, no Governmental Entity has initiated any
proceeding or, to the best knowledge of Greater Community, threatened an
investigation into the business or operations of Greater Community or any of its
Subsidiaries since December 31, 2004. Except as set forth in the
Greater
Community Disclosure Schedule, there is no material unresolved violation,
criticism or exception by any Governmental Entity with respect to any report,
registration or statement filed by, or relating to any examinations by any such
Governmental Entity of, Greater Community or any of its
Subsidiaries.
(c) Except
as set forth in the Greater
Community Disclosure Schedule, the records, systems, controls, data and
information of Greater Community and its Subsidiaries are recorded, stored,
maintained and operated under means (including any electronic, mechanical or
photographic process, whether computerized or not) that are under the exclusive
ownership and direct control of Greater Community or its Subsidiaries or
accountants (including all means of access thereto and therefrom), except for
any non-exclusive ownership and non-direct control that would not reasonably be
expected to have a materially adverse effect on the system of internal
accounting controls described in the following sentence. Greater
Community and its Subsidiaries have devised and maintain a system of internal
accounting controls sufficient to provide reasonable assurances regarding the
reliability of financial reporting and the preparation of financial statements
for external purposes in accordance with U.S. GAAP, including that (i)
transactions are executed only in accordance with management’s authorization;
(ii) transactions are recorded as necessary to permit preparation of the
financial statements of Greater Community and to maintain accountability for
Greater Community’s assets; (iii) access to Greater Community’s assets is
permitted only in accordance with management’s authorization; (iv) the reporting
of Greater Community’s assets is compared with existing assets at regular
intervals; and (v) accounts, notes and other receivables and inventory are
recorded accurately, and proper and adequate procedures are implemented to
effect the collection thereof on a current and timely basis. Greater
Community (A) has designed disclosure controls and procedures (within the
meaning of Rules 13a-14(e) and 14d-14(e) of the Exchange Act) to ensure that
material information relating to Greater Community and its Subsidiaries is made
known to the management of Greater Community by others within those entities as
appropriate to allow timely decisions regarding required disclosure and to make
the certifications required by the Exchange Act with respect to the Greater
Community SEC Reports, and (B) has disclosed, based on its most recent
evaluation prior to the date hereof, to Greater Community’s auditors and the
audit committee of Greater Community’s Board (1) any significant deficiencies in
the design or operation of internal controls which could adversely affect in any
material respect Greater Community’s ability to record, process, summarize and
report financial data and have identified for Greater Community’s auditors any
material weaknesses in internal controls and (2) any fraud, whether or not
material, that involves management or other employees who have a significant
role in Greater Community’s internal controls. Greater Community has
made available to Valley a summary of any such disclosure made by management to
Greater Community’s auditors and the audit committee of Greater Community’s
Board since January 1, 2003. Greater Community is in compliance with
Section 404 of the Xxxxxxxx-Xxxxx Act.
(d) Except
as set forth in the Greater
Community Disclosure Schedule, since January 1, 2005, (x) neither Greater
Community nor any of its Subsidiaries nor, to the knowledge of Greater
Community, any member of Greater Community’s Board of Directors, executive
officer or controller of Greater Community or any of its Subsidiaries, has
received or otherwise had or obtained knowledge of any material complaint,
allegation, assertion or claim, whether written or oral, regarding the
accounting or auditing practices, procedures, methodologies or methods of
Greater Community or any of its Subsidiaries or their respective internal
accounting controls, including any material complaint, allegation, assertion or
claim that Greater Community or any of its Subsidiaries has engaged in
questionable accounting or auditing practices, and (y) no attorney representing
Greater Community or any of its Subsidiaries, whether or not employed by Greater
Community or any of its Subsidiaries, has reported evidence of a material
violation of securities laws, breach of fiduciary duty or similar violation by
Greater Community or any of its officers, directors, employees or agents to any
member of Greater Community’s Board of Directors or any executive officer of
Greater Community.
3.22. Loan
Matters.
(a) Except
as set forth in the Greater
Community Disclosure Schedule, each outstanding loan (including loans
held for resale to investors) held by Greater Community or its Subsidiaries (the
“Greater
Community Loans”) has been solicited and originated and is administered
and, where applicable, serviced, and the relevant Greater Community Loan files
are being maintained, in all material respects in accordance with the relevant
loan documents, Greater Community’s underwriting standards (and, in the case of
Greater Community Loans held for resale to investors, the underwriting
standards, if any, of the applicable investors) and with all applicable
requirements of federal, state and local laws, regulations and rules, except for
such exceptions as would not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect on Greater Community.
(b) Except
as set forth in the Greater
Community Disclosure Schedule, each Greater Community Loan (i) is
evidenced by notes, agreements or other evidences of indebtedness that are true,
genuine and what they purport to be, (ii) to the extent secured, has been
secured by valid Liens which have been perfected and (iii) to Greater
Community’s knowledge, is a legal, valid and binding obligation of the obligor
named therein, enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent conveyance and other laws of general applicability
relating to or affecting creditors’ rights and to general equity
principles. The loan documents with respect to each Greater Community
Loan were in material compliance with applicable laws and regulations at the
time of origination or purchase by Greater Community or its Subsidiaries and are
complete and correct in all material respects.
(c) (i)
The Greater
Community Disclosure Schedule sets forth a list of all Loans as of
December 31, 2007 by Greater Community and its Subsidiaries to any directors,
executive officers and principal shareholders (as such terms are defined in
Regulation O promulgated by the Federal Reserve Board (12 CFR Part 215)) of
Greater Community or any of its Subsidiaries; (ii) except as listed in the Greater
Community Disclosure Schedule, there are no employee, officer, director
or other affiliate loans on which the borrower is paying a rate other than that
reflected in the note or the relevant credit agreement or on which the borrower
is paying a rate which was below market at the time the loan was made; and (iii)
all such loans are and were made in compliance with all applicable laws and
regulations, except for such exceptions as would not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect on Greater
Community.
(d) The
Greater
Community Disclosure Schedule identifies (A) each Greater Community Loan
that as of December 31, 2007 was classified as “Special Mention,” “Substandard,”
“Doubtful,” “Loss,” “Classified,” “Criticized,” “Credit Risk Assets,” “Concerned
Loans,” “Watch List” or words of similar import by Greater Community, any of its
Subsidiaries or any bank examiner, together with the principal amount of and
accrued and unpaid interest on each such Greater Community Loan and the identity
of the borrower thereunder, (B) each Greater Community Loan that would
classified under FASB 114, and (C) each asset of Greater Community or any of its
Subsidiaries that as of December 31, 2007 was classified as OREO and the book
value thereof as of such date.
(e) Except
as set forth in the Greater
Community Disclosure Schedule, none of the agreements pursuant to which
Greater Community or any of its Subsidiaries has sold loans or pools of loans or
participations in loans or pools of loans contains any obligation to repurchase
such loans or interests therein solely on account of a payment default by the
obligor on any such loan.
(f) Except
as set forth in the Greater
Community Disclosure Schedule, Greater Community has not originated,
serviced, and does not currently hold, directly or indirectly, any loans which
would be commonly referred to a “subprime”, “Alt-A” or “negative amortization”
loans, or home equity loans or lines of credit with a loan to value ration of
over ninety percent (90%) (collectively, “High Risk
Loans”).
(g) Except
as set forth in the Greater
Community Disclosure Schedule, Greater Community does not own any
investment securities that are secured by High Risk Loans.
(h) In
making all Greater Community Loans and continuing such Greater Community Loans,
Greater Community and the Greater Community Subsidiaries have complied with and
are in compliance with the provisions of the National Flood Insurance Act of
1968 and the Flood Disaster Protection Act of 1973 and 12 CFR 22.1 et. seq.
(“Flood Insurance Laws and Regulations”), except as set forth in the Greater
Community Disclosure Schedule.
3.23. Antitakeover
Provisions. Greater Community has taken all action required to
be taken by it in order to exempt this Agreement and the transactions
contemplated hereby from the requirements of any “control share acquisition,”
“business combination moratorium,” “fair price,” “affiliate transaction,”
“anti-greenmail” or other form of antitakeover statute or regulation of any
jurisdiction, including without limitation Sections 14A:10A-1 et. seq. of the
NJBCA, known as the New Jersey Shareholders’ Protection Act.
3.24. Termination
of Oritani Merger Agreement and Related Expenses. Greater Community has
terminated the Agreement and Plan of Merger by and between Oritani Financial
Corp. (“Oritani”)
and Greater Community dated November 13, 2007 (the “Oritani Merger
Agreement”) and Greater Community shall not be responsible for any
termination fees or expenses to Oritani under the Oritani Merger Agreement in
excess of $700,000. Any expenses incurred and/or payments or other
financial or other commitments made by Greater Community to third parties or to
employees, officers or directors of Greater Community in connection with the
Oritani Merger Agreement, together with any estimates therefor, are set forth in
the Greater
Community Disclosure Schedule.
3.25 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 Greater
Community or will be delivered pursuant to Section 5.11 by
Valley to Greater Community. Valley hereby represents and warrants to
Greater Community 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, or would not reasonably be
expected to have, either individually or in the aggregate, a Material Adverse
Effect on Valley. Valley is registered as a bank holding company
under the BHCA.
(b) All
of the Subsidiaries of Valley are listed in the Valley
Disclosure Schedule. Each Subsidiary of Valley is duly
organized and validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization. VNB is a national
bank whose deposits are insured by the FDIC to the fullest extent permitted by
law. Each Subsidiary of Valley has the 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
Valley.
4.2. Capitalization. The
authorized capital stock of Valley consists solely of 181,796,274 shares of
Valley Common Stock and 30,000,000 shares of preferred stock, no par value per
share (the “Valley
Preferred Stock”), which may be divided into classes and into series
within any class as determined by the Board of Directors. As of the
date hereof, there were 119,933,384 shares of Valley Common Stock issued
and outstanding net of treasury stock, and 2,577,335 treasury shares and no
shares of Valley Preferred Stock outstanding. As of December 31,
2007, except for 3,392,420 shares of Valley Common Stock issuable upon exercise
of outstanding stock options granted pursuant to the Valley Option Plans or the
Acquired Stock Plans, 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 directly or indirectly by Valley free and clear
of any liens, encumbrances, charges, restrictions or rights of third parties,
except as listed in the Valley
Disclosure Schedule. Except for the options and stock
appreciation rights referred to above under the Valley Option Plans, 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. Except
for the approvals described in paragraph (b) below, no other corporate
proceedings on the part of Valley and VNB are necessary to consummate the
transactions contemplated hereby. 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 Charter Documents of Valley or 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 Valley, 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 Department, the FRB, the SEC, or
applicable state securities bureaus or commissions and the shareholders of
Valley, 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.
4.4. Financial
Statements.
(a) Valley’s
Annual Reports on Form 10-K filed with the SEC under the Exchange Act and
available on the SEC’s XXXXX system set forth the consolidated statements of
financial condition of Valley as of December 31, 2007, 2006 and 2005, and
the related consolidated statements of income, shareholders’ equity and cash
flows for the periods ended December 31 in each of the three years 2005 through
2007, in each case accompanied by the audit report of Valley’s independent
public accountants (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 shareholders’ equity and of cash
flows (including the related notes, where applicable) fairly present the results
of the consolidated operations and changes in shareholders’ 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 December 31, 2007
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 and which are required by GAAP to be
disclosed in the Valley Financial Statements. Since December 31,
2007, 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. and Xxxxxx, Xxxxxxxx & Company,
Incorporated, 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. Except as
disclosed in the Valley
Disclosure Schedule, 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 December 31, 2007 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
and VNB Information. The information
relating to Valley and its Subsidiaries to be provided by Valley for inclusion
in the Proxy Statement-Prospectus, any filing pursuant to Rule 165 or Rule 425
under the Securities Act or Rule 14a-12 under the Exchange Act, or in any other
document filed with any other Governmental Entity in connection herewith, 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 in
which they are made, not misleading. The Registration Statement
(except for such portions thereof as relate only to Greater Community or any of
its Subsidiaries) will comply as to form in all material respects with the
provisions of the Exchange Act and the rules and regulations
thereunder. The Registration Statement (except for such portions
thereof as relate only to Greater Community or any of its Subsidiaries) will
comply as to form in all material respects with the provisions of the Securities
Act and the rules and regulations thereunder.
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. As of the date
hereof, Valley has available and reserved shares of Valley Common Stock
sufficient for issuance pursuant to the Merger and upon the exercise of the
Warrants. The Valley Common Stock to be issued hereunder pursuant to
the Merger, and upon exercise of the Warrants, when so issued, will be duly
authorized and validly issued, fully paid, nonassessable, 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. The Warrants to be issued hereunder pursuant to the Merger,
and the Valley Common Stock to be issued upon exercise of the Warrants, when so
issued, will be registered under the Securities Act and issued in accordance
with all applicable state and federal laws, rules and regulations, and such
Valley Common Stock will be listed for trading on the New York Stock Exchange
(the “NYSE”).
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 Valley. 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.
(a) 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 Taxes 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 Taxes not yet due and payable, but incurred in
respect of Valley and its Subsidiaries through such date, which reserves are, to
Valley’s knowledge, adequate for such purposes. No deficiencies exist
or have been asserted based upon any Returns of Valley or its
Subsidiaries.
(b) Except
as set forth in the Valley
Disclosure Schedule, neither Valley, nor any of its Subsidiaries: (i) has
taken or agreed to take any action, has failed to take any action, or knows of
any fact, agreement, plan or other circumstances that could prevent the Merger
from qualifying as a “reorganization” within the meaning of Section 368(a) of
the Code; (ii) have participated in or otherwise engaged in any transaction
described in Treasury Regulations Section 301.6111-2(b)(2) or any “Reportable
Transaction” within the meaning of Treasury Regulations Section 1.6011-4(b);
and/or (iii) has received any claim by a Governmental Entity in a jurisdiction
where it does not file Returns that it is or may be subject to taxation by that
jurisdiction.
(c) Except
as set forth in the Valley
Disclosure Schedule, (i) Valley and its Subsidiaries have complied with
all applicable laws, rules and regulations relating to the payment and
withholding of Taxes and has, within the time and in the manner provided by law,
withheld and paid over to the proper Governmental Entities all amounts required
to be so withheld and paid over under applicable laws; and (ii) Valley and its
Subsidiaries have maintained such records in respect to each transaction, event
and item (including as required to support otherwise allowable deductions and
losses) as are required under applicable Tax law, except where the failure to
comply or maintain records under (i) or (ii) will not result in a Material
Adverse Effect on Valley.
4.12 Valley
Shareholder Approval Not Required. Neither the
execution of this Agreement nor the transactions contemplated hereby require the
approval of the shareholders of Valley.
4.13. 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 on the Valley
Disclosure Schedule, to Valley’s knowledge, 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
Valley’s knowledge, 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.
4.14.
Compliance
with Applicable Law.
Except as set forth on the Valley
Disclosure Schedule, 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 Valley’s knowledge (i) VNB has complied in all
material respects with the CRA and (ii) no person or group would object to
the consummation of the Merger due to the CRA performance or rating of VNB. To
Valley’s knowledge, except as listed on the Valley
Disclosure Schedule, no person or group has adversely commented upon
VNB’s CRA performance.
4.15. 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 Valley.
4.16. 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.
4.17. Agreements
with Bank Regulators.
Except as set forth on the Valley
Disclosure Schedule, neither Valley nor any Valley 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 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, nor
has Valley 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.
Neither VNB nor any Valley 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 Greater Community by Valley prior to the date of this
Agreement.
4.18.
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 Greater Community. During the period
from the date of this Agreement to the Effective Time, Greater Community 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. Greater Community also shall use its best efforts to (i)
preserve its business organization and that of each Greater Community Subsidiary
intact, (ii) keep available to itself the present services of its employees and
those of its Subsidiaries, provided that neither Greater Community 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. Greater Community agrees
that from the date hereof to the Effective Time, except as otherwise approved by
Valley in writing (and with respect to clauses (v), (viii) and (ix) below, which
approval shall not be unreasonably delayed or withheld) 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 Charter Documents;
(ii) change
the number of shares of its authorized or issued capital 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
Greater Community or any Greater Community 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, except as set forth in the Greater
Community Disclosure Schedule;
(iii) grant
any severance or termination pay (other than pursuant to policies of Greater
Community in effect on the date hereof and disclosed in the Greater
Community 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
except for increases in compensation to officers and employees in the usual and
ordinary course of business consistent with past practice;
(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, except as set forth in the Greater
Community Disclosure Schedule;
(v)
make any capital expenditures in excess of $200,000 in the aggregate
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, except as set forth in the Greater
Community Disclosure Schedule;
(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 realize upon on collateral
for a defaulted loan) any business or entity;
(viii) make
any new investments in securities other than investments in government,
municipal or agency bonds having an average maturity or duration of less than
five years;
(ix) make
any material change in its accounting methods or practices, other than changes
required in accordance with GAAP;
(x)
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 that would cause any of its conditions to Closing not
to be satisfied; or
(xi) agree
to do any of the foregoing.
5.3. No
Solicitation. So long as this
Agreement remains in effect, neither Greater Community nor CB shall, 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 (i) merger of Greater Community or CB, (ii) sale of a majority of
the outstanding shares of common stock of Greater Community or CB, (iii) sale of
substantial assets or liabilities of Greater Community or CB not in the ordinary
course of business, or (iv) similar transactions involving Greater Community or
CB (an “Acquisition
Transaction”). Notwithstanding the foregoing, Greater
Community may enter into discussions or negotiations or provide information in
connection with an unsolicited possible Acquisition Transaction if the Board of
Directors of Greater Community, 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. Greater
Community 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, Greater Community will
cause one or more of its designated representatives to confer on a monthly or
more frequent basis with representatives of Valley regarding Greater Community’s
business, operations, properties, assets and financial condition and matters
relating to the completion of the transactions contemplated
herein. Without limiting the foregoing, Greater Community shall
provide Valley with forty eight (48) hours’ prior written notice before it or
any of its Subsidiaries issue any new loan or lease, extension of credit, or
renewal of an existing loan, extension of credit, or lease in excess of
$1,000,000, or increase by $1,000,000 or more the aggregate credit outstanding
or lease commitment, and provide Valley with a copy of the loan offering for any
such loan, extension of credit, lease, or renewal upon request. As
soon as reasonably available, but in no event more than 45 days after the end of
each fiscal quarter ending after the date of this Agreement and prior to the
Effective Time, Greater Community will deliver to Valley CB’s call reports filed
with the Department and the FDIC.
5.5. Access to Properties and
Records; Confidentiality.
(a) Greater
Community and CB shall permit Valley and its representatives, and Valley and VNB
shall permit Greater Community 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 Greater Community 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 shareholders’ meetings, Charter
Documents, 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 Greater Community 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. Greater Community
acknowledges that Valley may be involved in discussions concerning potential
acquisitions of banks and other entities and Valley shall not be obligated to
disclose such information to Greater Community 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 Greater Community, for a period of 45 calendar days following the
date of this Agreement, 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 Shareholders Meeting (as defined in Section 5.7) and
qualifying under applicable federal and state securities laws the Valley Common
Stock and the Warrants to be issued to Greater Community shareholders in
connection with the Merger, the parties hereto shall cooperate in the
preparation and filing by Valley with the SEC of a Registration Statement
including a proxy statement and prospectus satisfying all applicable
requirements of applicable state and federal laws, including the Securities Act,
the Exchange Act and applicable state securities laws and the rules and
regulations thereunder (such proxy statement and prospectus in the form mailed
by Greater Community to its shareholders together with any and all amendments or
supplements thereto, being herein referred to as the “Proxy
Statement-Prospectus” and the various documents to be filed by Valley
under the Securities Act with the SEC to register the Valley Common Stock for
sale, including the Proxy Statement-Prospectus, are referred to herein as the
“Registration
Statement”).
(b) Valley
shall furnish Greater Community with such information concerning Valley and its
Subsidiaries as is necessary in order to cause the Proxy Statement-Prospectus,
insofar as it relates to such entities, to comply with Section 5.6(a)
hereof. Valley agrees promptly to advise Greater Community if at any
time prior to the Shareholders Meeting any information provided by Valley in the
Proxy Statement-Prospectus becomes incorrect or incomplete in any material
respect and promptly to provide Greater Community with the information needed to
correct such inaccuracy or omission. Valley shall promptly furnish
Greater Community with such supplemental information as may be necessary in
order to cause the Proxy Statement-Prospectus, insofar as it relates to Valley
and the Valley Subsidiaries, to comply with Section 5.6(a) after
the mailing thereof to Greater Community’s shareholders.
(c) Greater
Community shall furnish Valley with such information concerning Greater
Community as is necessary in order to cause the Proxy Statement-Prospectus,
insofar as it relates to Greater Community, to comply with Section 5.6(a)
hereof. Greater Community agrees promptly to advise Valley if at any
time prior to the Shareholders Meeting, any information provided by Greater
Community in the Proxy Statement-Prospectus becomes incorrect or incomplete in
any material respect and promptly to provide Valley with the information needed
to correct such inaccuracy or omission. Greater Community shall
promptly furnish Valley with such supplemental information as may be necessary
in order to cause the Proxy Statement-Prospectus, insofar as it relates to
Greater Community and CB to comply with Section 5.6(a) after
the mailing thereof to Greater Community’s shareholders.
(d) Valley
shall as promptly as practicable make such filings, if any, as are necessary in
connection with the offering of the Valley Common Stock and the Warrants with
applicable state securities agencies and shall use all reasonable efforts to
qualify the offering of such stock and Warrants under applicable state
securities laws at the earliest practicable date. Greater Community
shall promptly furnish Valley with such information regarding Greater Community
shareholders as Valley requires to enable it to determine what filings are
required hereunder. Greater Community authorizes Valley to utilize in
such filings the information concerning Greater Community and CB provided to
Valley in connection with, or contained in, the Proxy
Statement-Prospectus. Valley shall furnish Greater Community’s
counsel with copies of all such filings and keep Greater Community advised of
the status thereof. Valley and Greater Community shall as promptly as
practicable file the Registration Statement containing the Proxy
Statement-Prospectus with the SEC, and each of Valley and Greater Community
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 issuable pursuant to the Merger to be listed
on the NYSE at the Effective Time. Valley shall cause the Valley
Common Stock which shall be issuable pursuant to exercise of Warrants to be
accepted for listing on the NYSE when issued.
(f) Valley
shall use reasonable efforts to cause the Warrants to be listed on the NASDAQ
Stock Market or other national securities exchange, if possible; provided that
the decision to list shall be subject to Valley’s reasonable business discretion
based upon the cost of such listing and the listing standards. Valley
shall make the listing decision as soon as practical and, if possible, before
the Proxy Statement-Prospectus is finalized for mailing.
(g) The
parties hereto will cooperate with each other and use all reasonable efforts to
prepare all necessary documentation, to effect all necessary filings and to
obtain all necessary permits, consents, 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 FDIC, the FRB and the
Department. The parties shall each have the right to review in
advance and comment on all information relating to the other, as the case may
be, 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. Valley and VNB shall use their best
efforts to cause their applications to the OCC and the FRB to be filed within
thirty (30) days of the date hereof. Greater Community shall deliver
to Valley within ten (10) days of the date hereof all information necessary to
complete such application as requested in writing by Valley. Valley
shall provide to Greater Community drafts of all filings and applications
referred to in this Section 5.6(g) and
shall give Greater Community the opportunity to comment thereon prior to their
filing.
(h)
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
Entity in respect of the transactions contemplated hereby.
(i)
Greater Community acknowledges that Valley is in or may be in
the process of acquiring other banks and other entities and that in connection
with such acquisitions, information concerning Greater Community 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. Greater Community agrees to provide Valley with any
information, certificates, documents or other materials about Greater Community
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. Greater Community 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 Greater Community for reasonable
expenses thus incurred by Greater Community 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 Greater Community unless Greater Community shall have
consented in writing to such filing, which consent shall not be unreasonably
delayed or withheld.
(j)
Between the date of this Agreement and the
Effective Time, Greater Community shall cooperate with Valley to reasonably
conform Greater Community’s policies and procedures regarding applicable
regulatory matters, to those of Valley as Valley may reasonably identify to
Greater Community from time to time, provided that any required
change in Greater Community’s practices need not be effected (A) more than five
days prior to the Effective Time and (B) unless and until all necessary
regulatory, governmental and shareholder approvals and consents have been
received, all statutory waiting periods in respect thereof have expired, Valley
agrees in writing that all conditions precedent to the Closing have occurred
(other than the delivery of certificates, opinions and other instruments and
documents to be delivered at the Closing), and Valley has provided the Closing
Notice. To the extent that Greater Community or the Greater Community
Subsidiaries are not in compliance with Flood Insurance Laws and regulations,
they shall promptly take all actions necessary to bring Greater Community and
the Greater Community Subsidiaries into compliance prior to the
Closing.
5.7. Approval
of Shareholders.
Greater
Community will (i) take all steps necessary duly to call, give notice of,
convene and hold a meeting of the shareholders of Greater Community (such
meeting or any adjournment thereof, the “Shareholders
Meeting”) for the purpose of securing the approval of shareholders of
this Agreement, (ii) subject to the qualification set forth in Section 5.3 hereof
and the right not to make a recommendation or to withdraw a recommendation if
Greater Community’s Board of Directors, after consulting with counsel,
determines in the exercise of its fiduciary duties that such recommendation
should not be made or should be withdrawn, recommend to the shareholders of
Greater Community the approval of this Agreement and the transactions
contemplated hereby and use its reasonable best efforts to obtain, as promptly
as practicable, such approval, and (iii) cooperate and consult with Valley with
respect to each of the foregoing matters. Within five days of the
date of execution of this Agreement, Greater Community shall cause each of the
directors of Greater Community in their capacity as shareholders and Xxxx X.
Xxxxxxxxx to execute and deliver to Valley a Voting Agreement, the form of which
is attached hereto as Exhibit
C.
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 the 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. In case at any time after the Effective
Time any further action is necessary or desirable to carry out the purposes of
this Agreement, the proper officers and directors of each party to this
Agreement shall take all such necessary action. 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 Greater Community determines that a material condition to its
obligation to consummate the transactions contemplated hereby cannot be
fulfilled on or prior to November 30, 2008 (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, Greater Community and Valley will
promptly inform the other of any facts applicable to Greater Community 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 Delivery and
Disclosure Supplements.
(a)
Promptly, and in any event within ten days of the date hereof, Greater Community
shall deliver to Valley and its counsel a binder containing true copies of all
documents specifically required to be attached as set forth in the applicable
Greater
Community Disclosure Schedule. From time to time prior to the
Effective Time, Greater Community shall deliver to Valley and its counsel true
copies of such other documents referred to or described in the Greater
Community Disclosure Schedule, or otherwise, as requested by Valley
and/or its counsel.
(b) 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. If the disclosure contained in any
such supplement (i) relates to events occurring before execution of this
Agreement or (ii) alone or together with other supplements or amendments
materially adversely affects the representation to which the amendment or
supplement relates, the party receiving the amendment or supplement may
determine not to accept it as a modification of the relevant
representation. Notice of such determination, if made, shall be given
by the receiving party to the other party not later than 15 days after it
received the disclosure in question. If such notice is not timely
given, or if the disclosure in question did not contain any matter of the nature
specified in clause (i) or (ii) of the second preceding sentence, the relevant
representation shall be deemed modified by the disclosure in the amendment or
supplement with the same effect as though that disclosure had been included in
the relevant Disclosure Schedule as furnished prior to execution of this
Agreement.
5.12 Transaction Expenses of
Greater Community.
(a) For
planning purposes, Greater Community shall, within 30 days from the date hereof,
provide Valley with its estimated budget of transaction-related expenses
reasonably anticipated to be payable by Greater Community 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. Greater Community shall promptly notify Valley if or
when it determines that it will expect to exceed its budget. Prior to
signing this Agreement, Greater Community has 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, Greater
Community shall ask all of its attorneys and other professionals to render
current and correct invoices for all unbilled time and
disbursements. Greater Community shall accrue and/or pay all of such
amounts as soon as possible.
(c) Greater
Community shall cause its professionals to render monthly invoices within 30
days after the end of each month. Greater Community shall notify
Valley monthly of all out-of-pocket expenses which Greater Community has
incurred in connection with this transaction.
(d) Valley,
in reasonable consultation with Greater Community, 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 before July 31, 2008.
5.14. Indemnification.
(a) For
a period of six years after the Effective Time, Valley shall indemnify, defend
and hold harmless each person who is now, or has been at any time prior to the
date hereof or who becomes prior to the Effective Time, a director or officer of
Greater Community (collectively, the “Greater Community
Indemnitees”) against any and all claims, damages, liabilities, losses,
costs, charges, expenses (including, without limitation, reasonable costs of
investigation, and the reasonable fees and disbursements of legal counsel and
other advisers and experts as incurred), judgments, fines, penalties and amounts
paid in settlement, asserted against, incurred by or imposed upon any Greater
Community Indemnitee (“Costs”) by
reason of the fact that he or she is or was a director or officer of Greater
Community or acted as a director or officer of a third party at the request of
Greater Community, in connection with, arising out of or relating to any
threatened, pending or completed claim, action, suit or proceeding (whether
civil, criminal, administrative or investigative) (each a “Claim” and
collectively, “Claims”),
including without limitation any Claim which is based upon, arises out of or in
any way relates to the Merger, this Agreement, any of the transactions
contemplated by this Agreement, the Greater Community Indemnitee’s service as a
member of the Board of Directors of Greater Community or any committee thereof,
the events leading up to the execution of this Agreement, any statement,
announcement, recommendation or solicitation made in connection therewith or
related thereto and any breach of any duty in connection with any of the
foregoing, in each case to the fullest extent which Greater Community would have
been permitted under any applicable law and its Charter Documents had the Merger
not occurred (and Valley shall also advance expenses as incurred to the fullest
extent so permitted).
(b) From
and after the Effective Time, Valley shall assume and honor any obligation of
Greater Community immediately prior to the Effective Time with respect to the
indemnification of the Greater Community Indemnitees arising out of the Charter
Documents of Greater Community or arising out of any written indemnification
agreements between Greater Community and such persons disclosed in the Greater
Community Disclosure Schedule, as if such obligations were pursuant to a
contract or arrangement between Valley and such Greater Community
Indemnitees.
(c) In
the event Valley or any of its successors or assigns (i) reorganizes or
consolidates with or merges into or enters into another business combination
transaction with any other person or entity and is not the resulting, continuing
or surviving corporation or entity of such consolidation, merger or transaction,
or (ii) liquidates, dissolves or transfers all or substantially all of its
properties and assets to any person or entity, then, and in each such case,
proper provision shall be made so that the successors and assigns of Valley
assume the obligations set forth in this Section
5.14.
(d) Valley
shall cause Greater Community’s officers and directors to be covered, for a
period of six years after the Effective Time, at Valley’s option, under (i)
Valley’s then current officers’ and directors’ liability insurance policy
(providing substantially similar coverage to Greater Community’s officers and
directors such officers and directors had under Greater Community’s existing
policy), or (ii) an extension of Greater Community’s existing officers’ and
directors’ liability insurance policy. However, Valley shall only be
required to insure such persons upon terms and for coverages substantially
similar to Greater Community’s existing officers’ and directors’ liability
insurance, and if such coverage over a six year period would in the aggregate
cost more than 200% of the annual premium currently paid by Greater Community
for such coverage, then Valley shall be required only to obtain such coverage as
may be obtained by an expenditure equal to 200% of the annual premium currently
paid by Greater Community for such coverage.
(e) Any
Greater Community Indemnitee wishing to claim indemnification under this Section 5.14 shall
promptly notify Valley upon learning of any Claim, but the failure to so notify
shall not relieve Valley of any liability it may have to such Greater Community
Indemnitee if such failure does not materially prejudice Valley. In
the event of any Claim (whether arising before or after the Effective Time) as
to which indemnification under this Section 5.14 is
applicable, (x) Valley shall have the right to assume the defense thereof and
Valley shall not be liable to such Greater Community Indemnitees for any legal
expenses of other counsel or any other expenses subsequently incurred by such
Greater Community Indemnitee in connection with the defense thereof, except that
if Valley elects not to assume such defense, or counsel for the Greater
Community Indemnitees advises that there are issues which raise conflicts of
interest between Valley and the Greater Community Indemnitees, the Greater
Community Indemnitees may retain counsel satisfactory to them, and Valley shall
pay the reasonable fees and expenses of such counsel for the Greater Community
Indemnitees as statements therefor are received; provided, however, that
Valley shall be obligated pursuant to this Section 5.14(e) to
pay for only one firm of counsel for all Greater Community Indemnitees in any
jurisdiction with respect to a matter unless the use of one counsel for multiple
Greater Community Indemnitees would present such counsel with a conflict of
interest that is not waivable by the Greater Community Indemnitees, and (y) the
Greater Community Indemnitees will cooperate in the defense of any such
matter. Valley shall not be liable for settlement of any claim,
action or proceeding hereunder unless such settlement is effected with its prior
written consent, which will not be unreasonably
withheld. Notwithstanding anything to the contrary in this Section 5.14, Valley
shall not have any obligation hereunder to any Greater Community Indemnitee when
and if a court of competent jurisdiction shall ultimately determine, and such
determination shall have become final and nonappealable, that the
indemnification of such Greater Community Indemnitee in the manner contemplated
hereby is prohibited by applicable law or public policy.
5.15.
Employment and
Director Matters.
(a) Following
consummation of the Merger, Valley will honor the existing written employment
and severance contracts with officers and employees of Greater Community and CB
that exist on the date hereof and are included in the Greater
Community Disclosure Schedule.
(b) Before
or following consummation of the Merger, Valley will decide whether to continue
each of CB and/or Greater Community’s pension and welfare plans for the benefit
of employees of CB and Greater Community, or to have such employees become
covered under a Valley Pension and Welfare Plan. Subject to the
foregoing, following consummation of the Merger, Valley shall make available to
all employees and officers of Greater Community who become employed by VNB
coverage under the benefit plans generally available to VNB’s employees and
officers (including pension and health and hospitalization) on the terms and
conditions available to VNB’s employees and officers with no uninsured waiting
periods for enrollment in Valley or VNB medical and dental plans for Greater
Community employees and their dependents. No prior existing condition
limitation not currently imposed by Greater Community or CB medical or dental
plans shall be imposed with respect to Valley’s or VNB’s medical and dental
plans on Greater Community or CB employees. Greater Community and CB
employees shall receive credit for any deductibles paid under Greater Community
and CB existing medical and dental plans. Greater Community employees
will be given credit for voting and eligibility purposes (but not for benefit
and accrual purposes) under Valley’s or VNB’s medical, life, vacation, sick
leave, disability and other welfare plans for prior service with Greater
Community, and Greater Community’s employees will be granted credit for such
prior service with Greater Community, solely for purposes of eligibility and
vesting under Valley’s or VNB’s 401(k) plan. No Greater Community
employee will be given credit for prior service under Valley’s or VNB’s Pension
Plan.
(c)
Valley intends to give priority consideration to Greater
Community and CB Employees for open positions at Valley and its Subsidiaries to
the extent their jobs with Greater Community or CB are eliminated in connection
with the Merger.
(d)
Following the consummation of the Merger and for one
year thereafter, VNB shall, to the extent not duplicative of other severance
benefits, pay severance to Greater Community and CB employees in accordance with
Valley’s written severance policy (except that Greater Community and CB
employees will receive 2 weeks of salary for each year of service without cap)
and shall provide out placement assistance to each employee with a position of
Vice President or above at no cost to such employees, provided, however, that
Valley shall not be required to expend more than $5,000 per employee with regard
to such out placement assistance.
(e)
Greater Community shall be entitled to name one
non-management director to the Valley Board of Directors, subject to the Valley
Board of Directors’ Nominating and Corporate Governance Committee approval
process. Valley shall use its best efforts to take all
applicable corporate action to commence the approval process so
that such individual is added to the Valley Board of Directors upon or
promptly following the Closing Date.
(f)
Each non-management Greater Community director, other than the
individual appointed to the Valley Board of Directors, shall be offered the
opportunity to participate in a Valley regional advisory board which will be
established in the Passaic County, New Jersey area.
5.16. Tax-Free
Reorganization Treatment. Neither Valley
nor Greater Community shall intentionally take, fail to take or cause to be
taken or not taken, any action within its control, which would disqualify the
Merger as a “reorganization” within the meaning of Section 368(a) of the
Code.
5.17. Bank
Policies and Bank Mergers. Notwithstanding
that Greater Community believes that it has established all reserves and taken
all provisions for possible loan losses required by GAAP and applicable laws,
rules and regulations, Greater Community recognizes that Valley may have adopted
different loan, accrual and reserve policies (including loan classifications and
levels of reserves for possible loan losses). From and after the date
of this Agreement to the Effective Time and in order to formulate the plan of
integration for the Bank Merger, Greater Community and Valley shall consult
and cooperate with each other with respect to (i) conforming to the extent
appropriate, based upon such consultation, Greater Community’s loan, accrual and
reserve policies and Greater Community’s other policies and procedures regarding
applicable regulatory matters, including without limitation Federal Reserve,
Bank Secrecy Act and FDIC matters, to those policies of Valley as Valley may
reasonably identify to Greater Community from time to time, and
(ii) conforming, based upon such consultation, the composition of the
investment portfolio and overall asset/liability management position of Greater
Community and CB to the extent appropriate; provided that any required
change in Greater Community’s practices in connection with the matters described
above need not be effected (A) more than five days prior to the Effective Time
and (B) unless and until all necessary regulatory, governmental and shareholder
approvals and consents have been received, all statutory waiting periods in
respect thereof have expired, Valley agrees in writing that all conditions
precedent to the Closing have occurred (other than the delivery of certificates,
opinions and other instruments and documents to be delivered at the Closing),
and Valley has provided the Closing Notice. No accrual or reserve
made by Greater Community or any Greater Community Subsidiary pursuant to this
subsection, or any litigation or regulatory proceeding arising out of any such
accrual or reserve, shall constitute or be deemed to be a breach or violation of
any representation, warranty, covenant, condition or other provision of this
Agreement or to constitute a termination event within the meaning of Section 7.1(e)
or Section
7.1(f) hereof.
5.18 Certain
Tax Matters. With respect to
each compensatory agreement and arrangement of Greater Community, each Greater
Community Pension Plan and each Greater Community Welfare Plan, in each case
subject to Section 409A of the Code (if any), Greater Community shall amend each
such plan or cause each such plan to be amended to the extent necessary to
comply with Section 409A of the Code prior to the Effective
Time. Such amendments shall be provided to Valley and its counsel at
least ten days prior to their proposed adoption by Greater Community or CB and
shall be subject to the prior written approval of Valley, which shall not be
unreasonably withheld.
5.19. Valley
Board Observer. From the date hereof, Greater Community and CB
shall provide Valley with reasonable advance notice of any meetings or other
proceedings of the Board of Directors of Greater Community and CB and Valley
shall have the right to have an observer present at any such meetings or
proceedings. Greater Community and CB shall provide Valley and its
counsel with the written minutes of any such meetings or
proceedings.
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 Shareholders;
SEC Registration. This Agreement and the transactions
contemplated hereby shall have been approved by the requisite vote of the
shareholders of Greater Community. 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.
(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 Greater Community and CB,
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. Both VNB and CB shall have taken all necessary action
to consummate the Bank Merger immediately after the Effective Time.
(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 Greater Community determines
in good faith, based upon the advice of their respective counsel, and taking
into consideration insurance coverage, if any, 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
Opinion. Valley shall use its best efforts so that Greater
Community and Valley shall have received an opinion of Xxx Xxxxxx LLP reasonably satisfactory in
form and substance to Greater Community and its counsel and to Valley based, in
each case, upon representation letters required by Xxx Xxxxxx LLP, dated on or about the date
of such opinion, and such other facts and representations as counsel may
reasonably deem relevant, to the effect that: (i) the Merger will be treated for
federal income tax purposes as a “reorganization” qualifying under the
provisions of Section 368 of the Code; and (ii) no gain or loss will be
recognized for federal income tax purposes to Valley, Greater Community, VNB or
CB or to the shareholders of Greater Community upon the exchange of Greater
Community Common Stock solely for Valley Common Stock and the
Warrants. The tax opinions of Xxx Xxxxxx LLP, summarized above are or
will be based, among other things, on representations contained in certificates
of the officers of Greater Community and Valley.
(e) NYSE
Listing. The Valley Common Stock shall have been approved for
listing on the NYSE.
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 Greater Community and
CB. The representations and warranties of Greater Community
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. Greater Community 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 been the subject of a supplement or amendment
to the Greater
Community Disclosure Schedule, that representation or warranty shall be
deemed modified by the disclosure contained in such supplement or amendment only
under the circumstances set forth in Section
5.11.
(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) CB
Action. CB shall have taken all necessary corporate action to
effectuate the Bank Merger immediately following the Effective
Time.
(d) Legal Fees.
Greater Community shall have furnished Valley with letters from all attorneys
representing Greater Community and CB in any matters confirming that all
material legal fees have been paid in full for services rendered as of the
Effective Time.
(e)
Merger
Related Expense. Greater Community shall have provided Valley with
an accounting of all merger related expenses incurred by it through the Closing
Date, including a good faith estimate of such expenses incurred but as to which
invoices have not been submitted as of the Closing Date. The merger
related expenses of Greater Community, other than printing expenses (which are
within the control of Valley) shall be reasonable, taking into account normal
and customary billing rates, fees and expenses for similar
transactions.
(f)
Oritani
Merger Agreement. The Oritani Merger Agreement shall have been
terminated and, to the knowledge of Valley and Greater Community, neither
Oritani nor any other person shall have made a claim or instituted any suit,
action or other proceeding regarding the Oritani Merger Agreement other than a
claim for a termination fee by Oritani under such agreement not in excess of
$700,000.
(g) Certificates. Greater
Community 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.
6.3. Conditions
to the Obligations of Greater Community Under this Agreement. The obligations
of Greater Community 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 been the subject of a supplement or
amendment to the Valley
Disclosure Schedule, that representation or warranty shall be deemed
modified by the disclosure contained in such supplement or amendment only under
the circumstances set forth in Section 5.11.
(b) VNB
Action. VNB shall have taken all necessary corporate action to
effectuate the Bank Merger immediately following the Effective
Time.
(c) Warrant
Agreement. Valley shall have, at the Closing, entered into a
Warrant Agreement with a warrant agent to be chosen in the sole discretion of
Valley.
(d) Certificates. Valley
shall have furnished Greater Community 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
Greater Community may reasonably request.
ARTICLE
VII
TERMINATION
7.1 Permissive
Termination. This Agreement may be terminated at any time prior to the
Effective Time, whether before or after approval of the matters presented in
connection with the Merger by the shareholders of Greater
Community:
(a) by
mutual consent of Greater Community and Valley;
(b) by
either Valley or Greater Community upon written notice to the other party (i) 60
days after the date on which any request or application for a required
regulatory approval shall have been denied or withdrawn at the request or
recommendation of the Governmental Entity which must grant such approval, unless
within the 60-day period following such denial or withdrawal a petition for
rehearing or an amended application has been filed with the applicable
Governmental Entity, provided, however, that no party shall have the right to
terminate this Agreement pursuant to this Section 7.1(b)(i) if
such denial or request or recommendation for withdrawal shall be due to the
failure of the party seeking to terminate this Agreement to perform or observe
the covenants and agreements of such party set forth herein or (ii) if any
Governmental Entity of competent jurisdiction shall have issued a final
nonappealable order enjoining (other than on a temporary basis) or otherwise
prohibiting the Merger;
(c) by
either Valley or Greater Community, if the Merger shall not have been
consummated on or before the Cutoff Date unless the failure of the Closing to
occur by such date shall be due to the failure of the party seeking to terminate
this Agreement to perform or observe the covenants and agreements of such party
set forth herein;
(d) by
either Valley or Greater Community if the approval of the shareholders of
Greater Community required for the consummation of the Merger shall not have
been obtained by reason of the failure to obtain the required vote at a duly
held meeting of such shareholders or at any adjournment or postponement
thereof;
(e) by
either Valley or Greater Community (provided that the terminating party is not
then in material breach of any representation, warranty, covenant or other
agreement contained herein), if there shall have been a breach of any of the
representations or warranties set forth in this Agreement on the part of the
other party, which breach is not cured within 20 days following written notice
to the party committing such breach, or which breach, by its nature, cannot be
cured prior to the Closing, and which breach of a representation or warranty,
would, individually or in the aggregate with other breaches, result in a
Material Adverse Effect with respect to the party committing such
breach;
(f) by
either Valley or Greater Community (provided that the terminating party is not
then in material breach of any representation, warranty, covenant or other
agreement contained herein), if there shall have been a material breach of any
of the covenants or agreements set forth in this Agreement on the part of the
other party hereto, which breach shall not have been cured within thirty days
following receipt by the breaching party of written notice of such breach from
the other party hereto, or which breach, by its nature, cannot be cured prior to
the Closing;
(g) by
Greater Community, if Greater Community's Board of Directors shall have approved
a definitive agreement reflecting an Acquisition Transaction (the “Alternative
Agreement”), but only if (1) at least 48 hours prior to entering into the
Alternative Agreement, Greater Community provides a copy of the Alternative
Agreement to Valley, (2) the Board of Directors of Greater Community, after
consultation with outside legal counsel and after considering any response that
Valley may have after reviewing the Alternative Agreement, determines in good
faith that approving the Alternative Agreement is legally necessary for the
proper discharge of its fiduciary duties under applicable law, (3) the Board of
Directors of Greater Community, after consultation with its financial advisor
and after considering any response that Valley may have after reviewing the
Alternative Agreement, determines in good faith that the transactions
contemplated by the Alternative Agreement are reasonably likely to be
consummated, taking into account all legal, financial and regulatory aspects of
the transaction and the party offering to enter into the Alternative Agreement,
and would, if consummated, be more favorable to the shareholders of Greater
Community than the transaction contemplated by this Agreement and any
transaction then being proposed by Valley; and (4) prior to terminating
this Agreement, Greater Community (A) delivers to Valley a written
acknowledgment, in form and substance reasonably satisfactory to Valley, that
upon consummation of the first closing contemplated by the Alternative
Agreement, Greater Community (and its successors) shall be obligated to pay to
Valley the Valley Termination Fee (as hereinafter defined) and the Valley
Termination Expenses (as hereinafter defined) and (B) delivers to Valley a
release signed by the parties to the Alternative Agreement, which release shall
be in form and substance reasonably satisfactory to Valley and shall irrevocably
waive any right the releasing parties may have to challenge the payment to
Valley of the Valley Termination Fee and the payment to Valley of the Valley
Termination Expenses;
(h)
by Valley, if an event occurs which may give rise to the payment of
a Valley Termination Fee and/or Valley Termination Expenses pursuant to Section
7.3;
(i)
by Valley if the conditions set forth in Sections 6.1 and
6.2 are
not satisfied and are not capable of being satisfied by the Cutoff
Date; or
(j)
by Greater Community if the conditions set forth in Sections 6.1 and
6.3 are not
satisfied and are not capable of being satisfied by the Cutoff
Date.
7.2. Effect of
Termination. In the event of termination of this Agreement by either
Valley or Greater Community as provided in Section 7.1, this
Agreement shall forthwith become void and have no effect except that Sections 7.1, 7.3 and 7.4 shall survive any
termination of this Agreement.
7.3. Valley
Termination Fee; Expenses. In the event that at any time after the date
of this Agreement (A) the Greater Community Shareholders Meeting shall have been
adjourned or canceled without the written consent of Valley, which written
consent shall not be unreasonably delayed or withheld with respect to an
adjournment if such adjournment is sought for the sole purpose of obtaining
required Greater Community Shareholder approval of the Merger, such adjournment
not to exceed 45 days, (B) the Board of Directors of Greater Community shall
have publicly withdrawn or modified, or publicly announced its intent to
withdraw or modify, in any manner adverse to Valley, its recommendation, or
shall have failed to reconfirm its recommendation, that the shareholders of
Greater Community approve the transactions contemplated by this Agreement, or
(C) Greater Community shall have breached any covenant or obligation contained
in this Agreement and such breach would entitle Valley to terminate this
Agreement, and in any such case this Agreement is terminated, then Greater
Community shall pay to Valley on the date of such termination an amount equal to
the out-of-pocket expenses incurred by Valley in connection with the
transactions contemplated by this Agreement (as itemized by Valley) (the “Valley
Termination Expenses”). If such termination covered by items
(A) through (C) above occurs after either (x) a bona fide Acquisition
Transaction shall have been communicated to Greater Community or (y) after the
date hereof, it shall have been publicly announced that any person other than
Valley or any Subsidiary of Valley shall have made a bona fide proposal by
public announcement or written communication that becomes the subject of public
disclosure to engage in a merger, consolidation or similar transaction with, or
a purchase or other acquisition of all or substantially all of the assets or a
majority of the outstanding shares of Common Stock of, Greater Community, then,
in any such case, Greater Community shall, concurrent with the consummation of
an Acquisition Event (as hereinafter defined) occurring within 12 months after
such termination, pay to Valley (I) a fee of Six Million Dollars ($6,000,000)
(the “Valley
Termination Fee”) and (II) the Valley Termination Expenses. For purposes
of this Agreement, the term “Acquisition
Event” shall mean the earlier to occur of (x) the signing of a definitive
agreement to enter into an Acquisition Transaction and (y) the first closing
contemplated by an Acquisition Transaction. Notwithstanding anything
to the contrary in this Agreement, payment by Greater Community of the Valley
Termination Fee shall be Valley’s sole and exclusive remedy against Greater
Community and/or its Subsidiaries, or any officers, directors, employees,
representatives or agents of Valley and/or its Subsidiaries in connection with a
termination of this Agreement under this Section 7.3.
7.4 Greater
Community Termination Fee. In the event that at any
time after the date of this Agreement, Valley shall have willfully and without
reasonable justification breached a covenant or agreement contained in this
Agreement and such breach has resulted in a termination of this Agreement by
Greater Community in accordance with Section 7.1(f) (subject to the right of
Valley to cure set forth therein), Valley shall, pay to Greater Community on the
date of such termination an amount equal to Seven Hundred Thousand Dollars
($700,000) (the “Greater Community
Termination Fee”). Notwithstanding anything to the contrary in
this Agreement, Greater Community’s sole and exclusive remedy against Valley
and/or its Subsidiaries, or any officers, directors, employees, representatives
or agents of Valley or its Subsidiaries, in connection with a termination of
this Agreement shall be the right to receive the Greater Community Termination
Fee.
ARTICLE
VIII
MISCELLANEOUS
8.1. Expenses. Except
as set forth above, 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:
0000 Xxxxxx
Xxxx
Xxxxx, Xxx
Xxxxxx 00000
Attn.: Xxxxxx
Xxxxxx
Chairman,
President and Chief Executive Officer
Facsimile
No. (000) 000-0000
Copy
to:
Xxx Xxxxxx LLP
Attn.: Xxxxxx
X. Xxxxx, Esq.
0 Xxxxx
Xxxxxx
Xxx Xxxx, XX
00000
Facsimile No. (000)
000-0000
(b) If
to Greater Community, to:
Greater Community
Bancorp
00 Xxxxx
Xxxxxxxxx
Xxxxxx, Xxx Xxxxxx
00000
Attn.: Xxxxxxx
X. Xxxxx, Xx.
Chairman,
President and Chief Executive Officer
Facsimile
No. (000) 000-0000
Copy
to:
Xxxxxxx & Xxxxx LLP
Attn.: Xxxxxx
X. Xxxxxxx, Esq.
000 Xxxx
Xxxxxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
Facsimile
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 Valley, Greater
Community, VNB and CB and their respective successors. 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 rights conferred upon Greater Community Indemnitees pursuant to Section 5.14
hereof.
8.4. Entire
Agreement. This Agreement,
the Confidentiality Agreement between Valley and Greater Community dated March
6, 2008, 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 among 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 Section 5.14
which shall survive the Merger, shall terminate as of the Effective
Time. The provisions of Sections 5.5(b),
7.3, 7.4 and the
Confidentiality Agreement, shall survive the termination of this
Agreement.
IN
WITNESS WHEREOF, Valley and Greater Community have caused this Agreement to be
executed by their duly authorized officers as of the day and year first above
written.
| VALLEY NATIONAL BANCORP | |||
| By: | /s/ Xxxxxx X. Xxxxxx | ||
| Xxxxxx X. Xxxxxx | |||
| Chairman, President and | |||
| Chief Executive Officer | |||
| GREATER COMMUNITY BANCORP | |||
| By: | /s/ Xxxxxxx X. Xxxxx, Xx. | ||
| Xxxxxxx X. Xxxxx, Xx. | |||
| Chairman, President and | |||
| Chief Executive Officer | |||
Exhibit
B to
Agreement
and Plan of Merger
WARRANT
AGREEMENT
Agreement,
dated as of this ____ day of ________, 2008, by and between Valley National
Bancorp, a New Jersey corporation and registered bank holding company (“Valley”)
and [___________] a [_________] (the “Warrant
Agent”)
WITNESSETH
WHEREAS,
Valley and Greater Community Bancorp, a New Jersey corporation and registered
bank holding company (“Greater
Community”), have entered into an Agreement and Plan of Merger dated as
of March [__], 2008 (the “Merger
Agreement”); and
WHEREAS,
the Merger Agreement provides that (i) Greater Community shall be merged with
and into Valley, (ii) each issued and outstanding shares of common stock, $0.50
par value per share, of Greater Community (“Greater Community
Common Stock”) (other than shares for which the holders thereof have
exercised dissenters’ rights) shall be converted into 0.95 of a share of no par
value common stock of Valley (“Valley Common
Stock”) and 0.10 of a warrant to acquire a share of Valley Common Stock
(a “Warrant”),
which warrants shall be exercisable at a price of $[___] per share of Valley
Common Stock (“Warrant
Price”), and (ii) that all validly outstanding options to acquire Greater
Community Common Stock shall be cancelled in accordance with the terms of the
Merger Agreement and that holders of options to acquire Greater Community Common
Stock shall receive the consideration set forth in the Merger Agreement;
and
WHEREAS,
an aggregate of [_____] Warrants shall be originally issued to holders of
Greater Community Common Stock pursuant to the terms of the Merger Agreement and
this Warrant Agreement, and each Warrant shall represent the right to acquire
one share of Valley Common Stock, subject to adjustment as described herein;
and
WHEREAS,
Valley desires to appoint the Warrant Agent to act on its behalf in connection
with the (i) issuance, transfer and exchange of the certificates representing
the Warrants (the “Warrant
Certificates”), (ii) the exercise of the Warrants by the holders thereof
(together with any registered successors or assigns, the “Holders”) and (iii) the
adjustment of Warrants upon the occurrence of certain events as contained
herein;
NOW,
THEREFORE, the parties hereto hereby agree as
SECTION
1. APPOINTMENT
OF WARRANT AGENT. Valley hereby appoints the Warrant Agent as
its agent to issue the Warrant Certificates, as set forth herein, subject to
resignation or replacement as provided herein. The Warrant Agent agrees to
accept such appointment, subject to the terms and conditions as set forth herein
and to issue, transfer and exchange the Warrant Certificates pursuant to the
terms of the Merger Agreement and as provided for herein and to notify Valley’s
transfer agent to issue the certificates representing the appropriate number of
shares of Valley Common Stock (or other consideration) upon exercise of
the Warrants. Valley agrees to issue and honor the Warrants on the terms
and conditions as herein set forth and to instruct its transfer agent to issue
its Valley Common Stock upon notice from the Warrant Agent of the proper
exercise of any Warrant. The Warrant Agent is hereby empowered to enforce any
rights of the Holders for the benefit of any Holder subject to the terms and
conditions contained herein.
SECTION
2. ISSUANCE
OF WARRANT CERTIFICATES
2.1. Form of Warrant
Certificate. All Warrants shall issued substantially in the
form of the Warrant Certificate annexed hereto as Exhibit A attached
hereto. The terms of any such Certificate are incorporated herein by
reference.
2.2. Execution of
Warrants. No Warrants shall have been duly and validly issued
until a Holder has received a Warrant Certificate executed by the Chairman,
President and CEO of Valley and the Corporate Secretary of Valley and such
Certificate is countersigned by an authorized officer of the Warrant Agent. Any
Warrant Certificates may be executed by such officers of Valley by means of a
facsimile signature. The Warrant Agent shall maintain the register of all
Holders.
2.3. Maximum Number of
Warrants. Valley hereby authorizes the Warrant Agent to issue
an aggregate of [______] Warrants pursuant to the terms hereof and pursuant to
the terms of the Merger Agreement, subject to adjustment as hereafter provided
in Section 4 hereof.
2.4. Initial
Holders. The Exchange Agent (as defined in the Merger
Agreement) shall deliver to the Warrant Agent a list of the names of the persons
who shall be the initial Holders of the Warrants and the number of Warrants to
which each such person is entitled. The Warrant Agent is hereby authorized by
Valley to promptly issue Warrant Certificates for [_____] Warrants upon receipt
of the written request of the Exchange Agent, which shall include the list
referred to in the preceding sentence. Valley shall deliver to the Warrant
Agent, along with this Warrant Agreement, a sufficient number of duly executed
Warrant Certificates. The Warrant Certificates requested by the Exchange Agent
shall be completed and countersigned by the Warrant Agent and promptly delivered
to the Exchange Agent to be mailed or delivered to the Holders pursuant to the
terms hereof and pursuant to the tens of the Merger Agreement. When requested by
the Warrant Agent, from time to time hereafter, Valley will execute additional
Warrant Certificates in blank for the Warrant Agent to issue
hereunder.
2.5. Rights Of A
Holder. Subject to adjustment as provided herein, each Warrant
shall, evidence the right to purchase one share of Valley Common Stock at the
Warrant Price of $[_____]. Following the Expiration Date, as defined in Section 3.1 below,
the Warrant shall be null and void.
SECTION
3. EXERCISE OF
WARRANT.
3.1. Exercise
Period. The Warrants may be exercised, in whole or in part, at
any time commencing two years after the Effective Time, as defined in the Merger
Agreement, but not later than 5:00 P.M., New York City time, on [_________],
2015 (the “Expiration
Date”). If the Expiration Date is not a Business Day, it shall
automatically be extended to 5:00 P.M. on the next day which is a Business Day.
Business Day means any day other than a Saturday, Sunday, or holiday on which
banks in New Jersey are authorized by law to close.
-2-
Notwithstanding
that the Warrants are not exercisable for two years following the Effective
Time, as defined in the Merger Agreement, the adjustments provided for in Section 4.1 shall be
made and the actions required by Section 4 shall be
undertaken.
Notwithstanding
that Warrants otherwise would not be exercisable until two years after the
Effective Time, (i) the Warrants shall be exercisable from the Effective Time if
between the date of the execution of the Merger Agreement and the Effective
Time, Valley is acquired (whether by merger, stock sale, asset sale or
otherwise) by any other person (an “Acquisition”);
(ii) if such an Acquisition is closed after the Effective Time, the Warrants
shall become exercisable immediately upon the date such an Acquisition is
closed; and (iii) the Warrants shall become exercisable immediately upon the
date Valley signs a definitive agreement with respect to an Acquisition; and
(iv) the Warrants shall become exercisable immediately from the date Valley
sends (or should have sent) notice to the Holders of the applicable record date
specified in Section
4.2 or 4.3. In the event that the Warrants become exercisable
prior to two years after the Effective Time, Valley shall cause notice of the
exercisability to be promptly given to the all Holders.
3.2. Means of
Exercise. In order to exercise a Warrant, the Holder must
present and surrender the Warrant Certificate to the Warrant Agent at its
office, with the Subscription Form on the back of the Warrant Certificate duly
executed and it must be accompanied by payment in full, in the form of cash, by
certified or official bank check payable to the order of Valley or its
successor, of the aggregate Warrant Price for the number of shares of Valley
Common Stock specified in such Subscription Form.
3.3. Issuance of Valley Common
Stock. Upon the request of the Warrant Agent, Valley shall
promptly deliver or cause its transfer agent to deliver a certificate or
certificates evidencing the shares of Valley Common Stock purchased when any
Warrant is validly exercised.
3.4. Certain Exercise
Provisions. If any Warrant is exercised in part only, a new
Warrant Certificate, dated the date of such exercise, evidencing the rights of
the Holder thereof to purchase the balance of the shares of Valley Common Stock
purchasable under such original Warrant shall promptly be issued to such Holder.
Upon receipt of any Warrant Certificate by the Warrant Agent, at its office, in
proper form for exercise and accompanied by payments as herein provided, the
Holder shall be deemed to be the holder of record of the shares of Valley Common
Stock issuable upon such exercise, notwithstanding that the stock transfer books
of Valley shall then be closed or that certificates representing such shares of
Valley Common Stock shall not then be actually delivered to the
Holder.
SECTION
4. ADJUSTMENT OF WARRANT PRICE
AND NUMBER OF SHARES PURCHASABLE AND OTHER TERMS IN CERTAIN
EVENTS. The Warrant Price and the number of shares of Valley
Common Stock purchasable upon exercise of any Warrant and the other terms and
conditions of the Warrant shall be subject to adjustment and modification as
follows in the circumstances provided:
-3-
4.1. Declaration of Stock
Dividend, Splits, Reverse Splits or Reclassification or
Reorganization.
(a)
In case Valley shall declare any dividend or other distribution upon its
outstanding shares of Valley Common Stock in Valley Common Stock or shall
subdivide its outstanding shares of Valley Common Stock into a greater number of
shares, then the number of shares of Valley Common Stock which may thereafter be
purchased upon the exercise of any Warrant shall be increased in proportion to
the increase in the number of shares of Valley Common Stock outstanding through
such dividend or subdivision and the Warrant Price per share shall be decreased
in such proportion. In case Valley shall at any time combine the outstanding
shares of its Valley Common Stock into a smaller number of shares, the number of
shares of Valley Common Stock which may thereafter be purchased upon the
exercise of any Warrant shall be decreased in proportion to the decrease in the
number of shares of Valley Common Stock outstanding through such combination and
the Warrant Price per share shall be increased in such proportion. Valley shall
cause a notice to be mailed to each Holder at least 20 days prior to the
applicable record date for the activity covered by this Section 4.1(a).
Valley’s failure to give the notice required by this Section 4.1(a) or any
defect therein shall not affect the validity of the activity covered by this
Section
4.1(a).
(b)
In case Valley shall at any time (i) distribute any rights, options or
warrants to all holders of shares of Valley Common Stock, (ii) issue other
securities to all holders of shares of Valley Common Stock by reclassification
of its shares of Valley Common Stock, or (iii) issue by means of a capital
reorganization other securities of Valley in lieu of the Valley Common Stock or
in addition to the Valley Common Stock, then the number of shares purchasable
upon exercise of each Warrant immediately prior thereto shall be adjusted so
that the Holder of each Warrant shall be entitled to receive the kind and number
of shares or other securities of Valley which the Holder would have owned or
have been entitled to receive after the happening of the event described above,
had such Warrant been exercised immediately prior to the happening of such event
or any record date with respect thereto. Valley shall cause a notice to be
mailed to each Holder at least 20 days prior to the applicable record date for
the activity covered by this Section 4.1(b).
Valley’ failure to give the notice required by this Section 4.1(b) or any
defect therein shall not affect the validity of the activity covered by this
Section
4.1(b).
(c)
An adjustment made pursuant to this Section 4.1 shall
become effective immediately after the effective date of such event retroactive
to the record date, if any, for such event.
(d)
For the purpose of this Section 4.1, the term “shares of Valley
Common Stock” shall mean (x) the class of stock designated as the Valley
Common Stock at the date of this Warrant, or (y) any other class of stock
resulting from successive changes or reclassifications of such shares consisting
solely of changes in par value, from no par value to par value or from par value
to no par value. In the event that at any time, as a result of an adjustment
made pursuant to this Section 4.1, the
Holder shall become entitled to purchase any shares of Valley other than shares
of Valley Common Stock, thereafter the number of such other shares so
purchasable upon exercise of each Warrant and the Warrant Price of such shares
shall be subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to the shares of
Valley Common Stock contained in this Section
4.1.
-4-
4.2. Liquidation, Dissolution or
Winding Up. Notwithstanding any other provisions hereof, in
the event of the liquidation, dissolution, or winding up of the affairs of
Valley (other than in connection with a consolidation, merger or sale or
conveyance of all or substantially all of its assets outside of the ordinary
course of business), the right to exercise this Warrant shall terminate and
expire at the close of business on the last full business day before the
earliest date fixed for the payment of any distributable amount on the Valley
Common Stock. Valley shall cause a notice to be sent to each Holder at least 20
days prior to the applicable record date for such payment stating the date on
which such liquidation, dissolution or winding up is expected to become
effective, and the date on which it is expected that holders of shares of Valley
Common Stock of record shall be entitled to exchange their shares of Valley
Common Stock for securities or other property or assets (including cash)
deliverable upon such liquidation, dissolution or winding up, and that each
Holder may exercise outstanding Warrants during such 20 day period and, thereby,
receive consideration in the liquidation on the same basis as other previously
outstanding shares of the same class as the shares acquired upon exercise.
Valley’s failure to give notice required by this Section 4.2 or any
defect therein shall not affect the validity of such liquidation, dissolution or
winding up.
4.3. Merger, Consolidation,
etc.
(a)
In case of any consolidation with or merger of Valley into another
corporation or sale or conveyance of all or substantially all of its assets
outside of the ordinary course of business (such consolidation, merger, sale or
conveyance, a “Change of
Control”) then, as a condition of such Change of Control, lawful and
adequate provisions shall be made whereby the Holders shall thereafter have the
right to receive upon payment of the Warrant Price in effect immediately prior
to such Change of Control, upon the basis and upon the terms and conditions
specified in this Agreement (including but not limited to all provisions
contained in this Section 4), and in lieu of the shares of Valley Common Stock
purchasable upon the exercise of the Warrants, such shares of stock, securities,
cash or assets which such Holder would have been entitled to receive after the
happening of such Change of Control had such Warrant been exercised immediately
prior to such Change of Control. The provisions of this Section 4.3 shall
similarly apply to successive Change of Controls. Valley shall cause a notice to
be mailed to each Holder at least 20 days prior to the applicable record date
for the Change of Control covered by this Section 4.3(a) and
shall provide notice of the Change of Control and shall set forth the first and
last date on which the Holder may exercise outstanding Warrants. Valley’s
failure to give the notice required by this Section 4.3(a) or any
defect therein shall not affect the validity of the Change of Control covered by
this Section
4.3(a).
(b)
Notwithstanding the foregoing, if as a result of such Change of Control, holders
of Valley Common stock shall receive or be entitled to receive consideration
other than solely in shares of common stock or other securities in exchange for
their Valley Common Stock, Valley may, at its sole option, fulfill all of its
obligations under this Warrant Agreement by causing the Notice required by Section 4.3(a) hereof
to include notice to Holders of the opportunity to exercise their Warrants
before the consummation date of the Change of Control, and thereby receive
consideration in the Change of Control, on the same basis as the shares which
would be acquired upon exercise of the Warrant, immediately prior to the
consummation of the Change of Control. If the notice specified in the preceding
sentence is provided to Holders, Warrants not exercised in accordance with this
Section 4.3(b)
before consummation of the Change of Control shall be cancelled and become null
and void on the consummation date of the Change of Control. The notice provided
by the Warrant Agent pursuant to this Section 4.3(b) shall
include a description of the terms of this Agreement providing for cancellation
of the Warrants in the event that Warrants are not exercised by the prescribed
date. Valley’s failure to give any notice required by this Section 4.3(b) for
any reason whatsoever or any defect therein shall not affect the validity of any
such Change of Control. The failure of and Holder to receive such
notice shall not void the cancellation of the Warrants and the Warrants shall
nevertheless be cancelled.
-5-
4.4. Duty to Make Fair
Adjustments in Certain Cases. If any event occurs as to which
in the opinion of the Board of Directors of Valley the other provisions of this
Section 4 are
not strictly applicable or if strictly applicable would not fairly protect the
purchase rights of the Holders in accordance with the essential intent and
principles of this Agreement, then the Board of Directors shall make an
adjustment in the application of such provisions, in accordance with such
essential intent and principles, as to protect the purchase rights of the
Holders. Notwithstanding the foregoing, the issuance of Valley Common Stock or
any securities convertible into Valley Common Stock by Valley either for cash or
in a merger, consolidation, exchange or acquisition shall not, by itself,
constitute a basis for requiring any adjustment in the Warrants unless
specifically enumerated herein.
4.5. Good Faith
Determination. Any determination as to whether an adjustment
or limitation of exercise is required pursuant to this Section 4 (and the
amount of any adjustment), and any determination of whether a Change in Control
has occurred or will occur, or whether Warrants shall be cancelled in connection
with a Change in Control, shall be binding upon the Holders if made in good
faith by the Board of Directors of Valley (or any successor to
Valley).
4.6. Notice of
Adjustment. Whenever the number of shares of Valley Common
Stock purchasable upon the exercise of the Warrants or the Warrant Price is
adjusted, Valley shall promptly file in the custody of its Secretary or an
Assistant Secretary at its principal office and with the Warrant Agent, an
officer’s certificate setting forth the number of shares of Valley Common Stock
purchasable upon the exercise of the Warrants, the Warrant Price after such
adjustment, a statement, in reasonable detail, of the facts requiring such
adjustment and the computation by which such adjustment was made. Each such
officer’s certificate shall be made available at all reasonable times for
inspection by the Warrant Holders, and the Warrant Agent shall, forthwith after
each such adjustment, promptly mail a copy of such certificate to such Holders
by first class mail, postage prepaid.
4.7. No Change of Warrant
Necessary. Irrespective of any adjustment in the Warrant Price
or in the number or kind of shares issuable upon exercise of the Warrants, the
Warrant Certificates may continue to express the same price and number and kind
of shares as are stated in the Warrant Certificates as initially
issued.
SECTION
5. SHARES TO BE FULLY PAID;
RESERVATION OF SHARES. Valley covenants and agrees for the
benefit of the Holders:
5.1. That
all shares of Valley Common Stock which may be issued upon the exercise of the
rights represented by the Warrant Certificates will, upon issue and payment of
the aggregate Warrant Price therefor, be duly authorized, validly issued, fully
paid and non-assessable and free and clear of all liens and encumbrances, with
no personal liability attaching to the ownership thereof.
-6-
5.2. That
during the period within which the rights represented by the Warrant
Certificates may be exercised, Valley will at all times have authorized and
reserved for the purpose of issue upon exercise of the rights evidenced by the
Warrant Certificates, a sufficient number of shares of Valley Common Stock to
provide for the exercise of the rights represented by the Warrant
Certificates.
5.3. That
Valley will take all such action as may be necessary to ensure that the shares
of Valley Common Stock issuable upon the exercise of the Warrants may be so
issued without violation of any applicable federal law or regulation, or of any
requirements of any securities exchange upon which any capital stock of Valley
may be listed.
5.4. That
Valley has filed a registration statement under the Securities Act of 1933 with
the United States Securities and Exchange Commission with respect to the
issuance of the Warrants and will file a registration statement with the SEC
with respect to the Valley Common Stock issuable thereunder prior to the date
upon which the Warrants become exercisable. Valley shall not be
obligated to file or comply with the laws of any jurisdiction other than the
United States of America to permit the Warrants to be exercised and no Warrant
Holder shall have the right to exercise the Warrants in a jurisdiction where
such exercise would be unlawful.
SECTION
6. EXCHANGE, ASSIGNMENT OR LOSS
OF WARRANT CERTIFICATE.
6.1. Exchange. The
Warrants shall be exchangeable at the option of the Holder, upon presentation
and surrender of the Warrant Certificate at the office of the Warrant Agent for
other Warrant Certificates of different denominations. Any Warrant Certificate
may be divided or combined with other Warrant Certificates into a Warrant
Certificate evidencing the same aggregate number of Warrants.
6.2. Transfer or
Assignment. The Warrants and all rights of Holders thereof are
assignable and transferable in whole or in part by the Holders thereof, in
person or by duly authorized attorney, by surrender of any Warrant Certificate
to the Warrant Agent at its office with the Assignment Form annexed thereto duly
executed and funds sufficient to pay any applicable transfer tax. In such event
the Warrant Agent shall execute and deliver, in the case of an assignment or
transfer in whole, a new Warrant Certificate in the name of the assignee or
transferee, or, in the case of an assignment or transfer in part, a new Warrant
Certificate in the name of such assignee or transferee representing the number
of Warrants so assigned or transferred and a new Warrant Certificate in the name
of the assignor or transferor representing the number of Warrants not so
assigned or transferred.
6.3. Lost or Destroyed Warrant
Certificates. Upon receipt by the Warrant Agent of evidence
satisfactory to it of the loss, theft, destruction or mutilation of a Warrant
Certificate, and (i) in the case of such loss, theft or destruction, of
reasonably satisfactory indemnification and bonding, or (ii) if mutilated, upon
surrender and cancellation of such Warrant Certificate, the Warrant Agent shall
execute and deliver a new Warrant Certificate of like tenor. Any such new
Warrant Certificate executed and delivered shall constitute an additional
contractual obligation on the part of Valley, whether or not the Warrant
Certificate so lost, stolen, destroyed or mutilated shall be at any time
enforceable by anyone.
-7-
SECTION
7. NO ISSUANCE OF FRACTIONAL
INTERESTS IN COMMON STOCK. Valley shall not be required to
issue fractional shares of Valley Common Stock on the exercise of the Warrants.
If any fraction of a share of Valley Common Stock would be issuable upon the
exercise of the Warrants (or any specified portion thereof), Valley shall pay an
amount in cash equal to the product of (a) such fraction and (b) the closing
price per share of Valley Common Stock as quoted by the New York Stock Exchange,
or on any other exchange on which the Valley Common Stock is quoted, on the
trading day prior to the date the Warrant is exercised.
SECTION
8. NO RIGHTS AS SHAREHOLDERS;
CERTAIN NOTICES AND REPORTS TO HOLDERS. Except as specifically
provided in this Agreement, nothing contained in this Agreement or in the
Warrant Certificates shall be construed as conferring upon the Holders or any
transferees the right to vote or to receive dividends or to receive notice as
shareholders in respect of any meeting of shareholders for the election of
directors of Valley or any other matter, or any rights whatsoever as
shareholders of Valley.
8.1. Reports. Valley
shall transmit to all registered Holders, all reports and other documents that
Valley transmits to holders of shares of Valley Common Stock generally, at the
same time and in the same manner as such reports and other documents are
transmitted to holders of shares of Valley Common Stock.
SECTION
9. AGREEMENT OF WARRANT
HOLDERS. Every Holder of a Warrant, by his acceptance thereof,
consents and agrees with Valley, the Warrant Agent and every other Holder of a
Warrant that:
(a) The
Warrants are transferable only on the registry books of Valley by the Holder
thereof in person or by his attorney duly authorized in writing and only if the
Warrant certificates representing such Warrants are surrendered at the office of
the Warrant Agent, duly endorsed or accompanied by a proper instrument of
transfer satisfactory to the Warrant Agent and Valley in their sole discretion,
together with payment of any applicable transfer taxes; and
(b) Valley
and the Warrant Agent may deem and treat the person in whose name the Warrant
certificate is registered as the Holder and as the absolute, true and lawful
owner of the Warrants represented thereby for all purposes, and neither Valley
nor the Warrant Agent shall be affected by any notice or knowledge to the
contrary.
SECTION
10. DUTIES
OF WARRANT AGENT. The Warrant Agent acts hereunder as agent
and in a ministerial capacity for Valley, and its duties shall be determined
solely by the provisions hereof. The Warrant Agent shall not, by issuing and
delivering Warrant certificates or by any other act hereunder be deemed to make
any representations as to the validity, value or authorization of the Warrant
certificates or the Warrants represented thereby or of any securities or other
property delivered upon exercise of any Warrant or whether any stock issued upon
exercise of any Warrant is fully paid and nonassessable.
-8-
The
Warrant Agent shall not at any time be under any duty or responsibility to any
Holder of Warrant certificates to make or cause to be made any adjustment of the
Warrant Price provided in this Agreement, or to determine whether any fact
exists which may require any such adjustments, or with respect to the nature or
extent of any such adjustment, when made, or with respect to the method employed
in making the same. It shall not (i) be liable for any recital or statement of
facts contained herein or for any action taken, suffered or omitted by it in
reliance on any Warrant Certificate or other document or instrument believed by
it in good faith to be genuine and to have teen signed or presented by the
proper party or parties, (ii) be responsible for any failure on the part of
Valley to comply with any of its covenants and obligations contained in this
Agreement or in any Warrant Certificate, or (iii) be liable for any act or
omission in connection with this Agreement except for its own gross negligence
or willful misconduct.
The
Warrant Agent may at any time consult with counsel satisfactory to it (who may
be counsel for Valley) and shall incur no liability or responsibility for any
action taken, suffered or omitted by it in good faith in accordance with the
opinion or advice of such counsel.
Any
notice, statement, instruction, request, direction, order or demand of Valley
shall be sufficiently evidenced by an instrument signed by the Chairman,
President and CEO, any Executive Vice President, or the Secretary (unless other
evidence in respect thereof is herein specifically prescribed). The Warrant
Agent shall not be liable for any action taken, suffered or omitted by it in
accordance with such notice, statement, instruction, request, direction, order
or demand believed by it to be genuine.
Valley
agrees to pay the Warrant Agent reasonable compensation for its services
hereunder and to reimburse it for its reasonable expenses hereunder and further
agrees to indemnify the Warrant Agent and save it harmless against any and all
losses, expenses and liabilities, including judgments, costs and counsel fees,
for anything done or omitted by the Warrant Agent in the execution of its duties
and powers hereunder except losses, expenses and liabilities arising as a result
of the Warrant Agent’s gross negligence or willful misconduct.
The
Warrant Agent may resign its duties and be discharged from all further duties
and liabilities hereunder (except liabilities arising as a result of the Warrant
Agent’s own gross negligence or willful misconduct), after giving 30 days’ prior
written notice to Valley. At least 15 days prior to the date such resignation is
to become effective, the Warrant Agent shall cause a copy of such notice of
resignation to be mailed to the Holder of each Warrant Certificate at Valley’s
expense. Upon such resignation, or any inability of the Warrant Agent to act as
such hereunder, Valley shall appoint a new warrant agent in writing. Valley
shall have complete discretion in the naming of a new warrant agent, who may be
an affiliate, subsidiary or department of Valley, or any person used by Valley
as transfer agent for the Valley Common Stock. If Valley shall fail to make such
appointment within a period of 15 days after it has been notified in writing of
such resignation by the resigning Warrant Agent, then the Holder of any Warrant
Certificate may apply to any court of competent jurisdiction for the appointment
of a new warrant agent. Valley may, upon notice to the Holders, remove and
replace the Warrant Agent if the Warrant Agent is the transfer agent for Valley
Common Stock and the Warrant Agent ceases to be the transfer agent for Valley
Common Stock for any reason.
-9-
After
acceptance in writing of an appointment by a new warrant agent is received by
Valley, such new warrant agent shall be vested with the same powers, rights,
duties and responsibilities as if it had been originally named herein as the
Warrant Agent, without any further assurance, conveyance, act or deed. Any
former warrant agent hereby agrees to cooperate with and deliver all records and
Warrant Certificates to the new warrant agent at the direction of the new agent
and Valley.
Not later
than the effective date of an appointment of a new warrant agent by Valley,
Valley shall file notice with the resigning or terminated warrant agent and
shall forthwith cause a copy of such notice to be mailed to each
Holder.
Any
corporation into which the Warrant Agent or any new warrant agent may be
converted or merged or any corporation resulting from any consolidation to which
the Warrant Agent or any new warrant agent shall be a party or any corporation
succeeding to the trust business of the Warrant Agent shall be a successor
warrant agent under this Agreement without any further act. Any such successor
warrant agent shall promptly cause notice of its succession as warrant agent to
be mailed to Valley and to each Holder.
Nothing
herein shall preclude the Warrant Agent from acting in any other capacity for
Valley.
SECTION
11. MODIFICATION OF
AGREEMENT. The Warrant Agent and Valley may by supplemental
agreement make any changes or corrections in this Agreement: (i) that they shall
deem appropriate to cure any ambiguity or to correct any defective or
inconsistent provision or manifest mistake or error herein contained; or (ii)
that they may deem necessary or desirable and which shall not adversely affect
the purchase or other material rights of the Holders of Warrant Certificates.
This Agreement shall not otherwise be modified, supplemented or amended in any
respect except with the consent in writing of the Holders of Warrant
Certificates representing not less than 50% of the Warrants then outstanding,
but no such amendment, modification or supplement which changes the number or
nature of the securities purchasable upon the exercise of any Warrant, the
Warrant Price or accelerates the Expiration Date, shall be made without the
consent in writing of each and every Holder (but no consent shall be required
for such changes as are specifically prescribed by this Agreement as originally
executed).
SECTION
12. MISCELLANEOUS.
12.1. Entire
Agreement. This Agreement and the form of Warrant Certificate
annexed hereto as Exhibit A 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 with respect thereto.
12.2. 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.
12.3. 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.
-10-
12.4. 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.
12.5. Notices. Any
notice or other communications required hereunder to be given to a Holder shall
be in writing and shall be sufficiently given, if mailed or personally
delivered, or by any other means previously consented to by the Holder,
including, without limitation, electronic mail or facsimile. If
mailed, such notice shall be addressed in the name and at the address of such
Holder appearing from time to time on the records of the Warrant Agent. Notices
or other communications to Valley shall be deemed to have been sufficiently
given if mailed or personally delivered to Valley at its then principal office,
Attention: Chairman, President and CEO, or at such other address as Valley shall
have designated by written notice to the Warrant Agent. Notices or
other communications to the Warrant Agent shall be deemed to have been
sufficiently given if mailed or personally delivered to its then principal
office, or by any other means previously consented to by the Warrant Agent, with
respect to communications by such Holder or person. Notice by mail shall be
deemed given when deposited in the mail, postage prepaid.
-11-
IN
WITNESS WHEREOF, Valley and the Warrant Agent have executed this Agreement by
their duly authorized officers as of the date first set forth
above.
| VALLEY NATIONAL BANCORP | |||
|
|
By:
|
||
| [WARRANT AGENT] | |||
| By: | |||
-12-
Exhibit
A
Warrant
Certificate
| Certificate Number | ||||
| Initial Issuance | ||||
| Dated: |
Warrants
|
|||
VOID
AFTER ______________, 2015
WARRANT
CERTIFICATE FOR
PURCHASE
OF COMMON STOCK
| This certifies that FOR VALUE RECEIVED | |||
| or his registered assigns (the “Holder”) is the registered owner of | |||
|
Warrants
(“Warrants”)
issued by Valley National Bancorp, a New Jersey corporation and registered
bank holding company (“Valley”).
The Warrants are subject to the terms and conditions set forth in this
certificate and the Warrant Agreement (as hereinafter defined). Each
Warrant entitles the Holder to purchase one share of common stock, no par
value (“Valley
Common Stock”), of Valley, at any time from two years following the
initial issuance date of the Warrants set forth above until the Expiration
Date (as hereinafter defined), upon the presentation and surrender of this
Warrant Certificate with the Subscription Form on the reverse side hereof
duly executed, at the corporate office of the Warrant Agent (as hereafter
defined), accompanied by payment of $[____] (the “Warrant
Price”) in cash, by official bank or certified check made payable
to Valley or its successor. As provided in Section 3.1 of
the Warrant Agreement, the Warrant may also be exercisable in specified
circumstances during the six month period commencing with the initial
issuance date.
|
|||
This
Warrant Certificate and each Warrant represented hereby are issued pursuant to
and are subject in all respects to the terms and conditions set forth in the
Warrant Agreement (the “Warrant
Agreement”), dated ________________, 2008 by and between Valley and
[_____________] (the “Warrant
Agent”), a copy of which may be obtained from Valley at [_______________]
or the Warrant Agent at [_______________________], by a written request from the
Holder hereof or which may be inspected by any Holder or his agent at the
principal office of Valley or the Warrant Agent.
As
provided in Section
4 of the Warrant Agreement, in certain circumstances: (i) the Warrant
Price and the number of shares of Valley Common Stock the Holder is entitled to
receive upon the exercise of any Warrants may be adjusted; (ii) the Warrants
shall automatically represent the right to receive upon exercise consideration
which is different from or in addition to the consideration specified on the
face of this Certificate; and (iii) the Warrants, at the option of Valley under
certain circumstances, may expire prior to the Expiration Date.
No
fractional shares of Valley Common Stock will be issued upon exercise of the
Warrant. In the case of the exercise of less than all the Warrants represented
hereby, Valley shall cancel this Warrant Certificate upon the surrender hereof
and shall execute and deliver a new Warrant Certificate or Warrant Certificates
of like tenor, which the Warrant Agent shall countersign, for the balance of
such Warrants.
The term
“Expiration
Date” shall mean 5:00 P.M. (New Jersey time) on _____________, 2015. If
such date is not a Business Day, as defined in the Warrant Agreement, the
Expiration Date shall mean 5:00 P.M. (New Jersey time) the next following
Business Day. The Expiration Date may be accelerated by Valley under certain
circumstances, as provided in the Warrant Agreement.
This
Warrant shall not be exercisable by a Holder in any jurisdiction where such exercise would be
unlawful.
This
Warrant Certificate is exchangeable, upon the surrender hereof by the Holder at
the corporate office of the Warrant Agent, for a new Warrant Certificate or
Warrant Certificates of like tenor representing an equal aggregate number of
Warrants. Upon due presentment of this Warrant Certificate for registration or
transfer at such office, upon payment of any tax or governmental charge imposed
in connection therewith, a new Warrant Certificate or Warrant Certificates
representing an equal or aggregate number of Warrants will be issued to the
transferee in exchange therefor.
Prior to
the exercise of any Warrant represented hereby, the Holder shall not be entitled
to any rights of a shareholder of Valley, including, without limitation, the
right to vote or to receive dividends or other distributions, and shall not be
entitled to receive any notice of any proceedings of Valley, except as provided
in the Warrant Agreement.
Prior to
due presentment for registration of transfer hereof, Valley and the Warrant
Agent shall treat the Holder as the absolute owner hereof and of each Warrant
represented hereby for all purposes and shall not be affected by any notice to
the contrary.
This
Warrant Certificate shall be governed by and construed in accordance with the
laws of the State of New Jersey.
This
Warrant Certificate is not valid unless countersigned by the Warrant
Agent.
IN
WITNESS WHEREOF, Valley has caused this Warrant Certificate to be duly executed,
manually or in facsimile by two of its officers thereunto duly
authorized.
| By: |
|
|||||
|
|
||||||
|
[WARRANT
AGENT]
|
By: |
|
||||
|
|
||||||
|
As
Warrant Agent
|
|
|||||
| By: |
|
|||||
| Authorized Officer | ||||||
Exhibit
C to
Agreement
and Plan of Merger
VOTING
AGREEMENT
This
Voting Agreement (this “Agreement”)
is dated as of March [__], 2008, among Valley National Bancorp, a New Jersey
corporation and registered bank holding company (“Valley”),
and the shareholders of Greater Community Bancorp, a New Jersey corporation and
registered bank holding company (“Greater
Community”), executing this Agreement on the signature page hereto (each,
a “Shareholder”
and collectively, the “Shareholders”).
RECITALS
A. Concurrently
with the execution of this Agreement, Valley and Greater Community have entered
into an Agreement and Plan of Merger (the “Merger
Agreement”) which provides, among other things, for the merger (the
“Merger”)
of Greater Community with and into Valley upon the terms and subject to the
conditions set forth therein.
B. As
of the date hereof, each Shareholder is the record and Beneficial Owner (as
defined below) of that number of Greater Community Common Shares (as defined
below) set forth below such Shareholder’s name on the signature page
hereto.
C. As
a condition to Valley’s willingness to enter into and perform its obligations
under the Merger Agreement, each Shareholder has agreed to enter into this
Agreement.
NOW
THEREFORE, the parties hereto agree as follows:
I. CERTAIN
DEFINITIONS
1.1. Capitalized
Terms. Capitalized terms used in this Agreement and not
defined herein have the meanings ascribed to such terms in the Merger
Agreement.
1.2. Other
Definitions. For the purposes of this Agreement:
“Beneficial
Owner” or “Beneficial
Ownership” with respect to any securities means having “beneficial
ownership” of such securities (as determined pursuant to Rule 13d-3 under
the Securities Exchange Act of 1934, as amended).
“Greater Community
Common Share” means a share of common stock, par value $0.50 per share,
of Greater Community, including for purposes of this Agreement all shares or
other voting securities into which any Greater Community Common Share may be
reclassified, sub-divided, consolidated or converted and any rights and benefits
arising therefrom (including any dividends or distributions of securities which
may be declared in respect of Greater Community Common Shares).
II. SUPPORT
OBLIGATIONS OF THE SHAREHOLDER
2.1. Agreement to
Vote. Each Shareholder irrevocably and unconditionally agrees
that from and after the date hereof, at any meeting (whether annual or special,
and at each adjourned or postponed meeting) of shareholders of Greater
Community, however called, or in connection with any written consent of Greater
Community’s shareholders, each Shareholder will (x) appear at each such meeting
or otherwise cause all of its Owned Shares, as hereinafter defined, to be
counted as present thereat for purposes of calculating a quorum, and respond to
each request by Greater Community for written consent, if any, and (y) vote (or
consent), or cause to be voted (or validly execute and return and cause consent
to be granted with respect to), all of such Shareholder’s Greater Community
Common Shares Beneficially Owned by such Shareholder as of the applicable record
date (including any Greater Community Common Shares that such Shareholder may
acquire after the date hereof “Owned
Shares”) and all other voting securities of or equity interests in
Greater Community: (i) in favor of the adoption of the Merger Agreement
(whether or not recommended by the Board of Directors of Greater Community), and
(ii) against any action, agreement, transaction or proposal that (A) is made in
opposition to, or in competition or inconsistent with, the Merger or the Merger
Agreement, (B) relates to a Competing Proposal, Acquisition Transaction, Third
Party Public Event or Superior Competing Transaction, or (C) could otherwise
prevent, impede or delay the consummation of the Merger or the other
transactions contemplated by the Merger Agreement.
2.2. No
Solicitation. Each Shareholder agrees that it will comply with
Section 5.3 of
the Merger Agreement, which Section is incorporated by reference
herein. The foregoing shall not restrict or limit the ability of any
Person who is a director of Greater Community to take any action in his or her
capacity as a director of Greater Community to the extent expressly permitted by
the Merger Agreement.
2.3 No Restrictions on
Transfer. Nothing in this Agreement shall be deemed to
prohibit a Shareholder from selling, transferring, assigning, gifting, or
pledging any Owned Shares.
III. GENERAL
3.1. Governing
Law. This Agreement and any controversies arising with respect
hereto shall be construed in accordance with and governed by the law of the
State of New Jersey (without regard to principles of conflict of laws that would
apply the law of another jurisdiction).
3.2. Amendments. This
Agreement may not be amended except by written agreement signed by Valley and by
each Shareholder.
3.3. Entire
Agreement. This Agreement constitutes the entire agreement and
supersedes all other prior agreements, understandings, representations and
warranties, both written and oral, among the parties to this Agreement with
respect to the subject matter of this Agreement.
3.4. Counterparts;
Execution. This Agreement may be executed in any number of
counterparts, all of which are one and the same agreement. This
Agreement may be executed by facsimile signature by any party and such signature
is deemed binding for all purposes hereof, without delivery of an original
signature being thereafter required.
-2-
3.5. Effectiveness and
Termination. This Agreement will become effective when Valley has
received counterparts signed by all of the other parties and itself and shall
terminate on the date that the Merger is approved by Greater Community
shareholders. In the event the Merger Agreement is terminated in accordance with
its terms, this Agreement shall automatically terminate and be of no further
force or effect. Upon such termination, except for any rights any party may have
in respect of any breach by any other party of its or his obligations hereunder,
none of the parties hereto shall have any further obligation or liability
hereunder.
[Rest
of page intentionally left blank]
-3-
IN
WITNESS WHEREOF, each party hereto has caused this Agreement to be signed as of
the date first above written.
| VALLEY NATIONAL BANCORP | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
(Shareholder
signature pages follow)
| SHAREHOLDERS | |||
| Shareholder: | |||
| Signature: | |||
| Title, if applicable: | |||
| Owned Shares: | |||
| Notice Address: | |||
| Shareholder: | |||
| Signature: | |||
| Title, if applicable: | |||
| Owned Shares: | |||
| Notice Address: | |||
| Shareholder: | |||
| Signature: | |||
| Title, if applicable: | |||
| Owned Shares: | |||
| Notice Address: | |||
| Shareholder: | |||
| Signature: | |||
| Title, if applicable: | |||
| Owned Shares: | |||
| Notice Address: | |||
