VOTING AGREEMENT
Exhibit 10.1
Execution Version
This
Voting Agreement (this “Agreement”) is
dated as of November 6, 2017, among 1st Constitution Bancorp, a New
Jersey corporation and registered bank holding company
(“1st
Constitution”), 1st Constitution Bank, a New Jersey
state commercial bank and the wholly-owned banking subsidiary of
1st Constitution (the “Bank”), and
certain shareholders of New Jersey Community Bank, a New Jersey
state commercial bank (“NJCB”),
executing this Agreement on the signature page hereto (each, a
“Shareholder”
and collectively, the “Shareholders”).
RECITALS
A.
Concurrently with the execution of this Agreement, 1st
Constitution, the Bank and NJCB have entered into an Agreement and
Plan of Merger (the “Merger
Agreement”) which provides, among other things, for
the merger (the “Merger”) of
NJCB with and into the Bank 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 NJCB Common
Shares (as defined below) set forth below such Shareholder’s
name on the signature page hereto.
C.
As a condition to 1st Constitution’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).
“Permitted
Transferee” means, with respect to any Shareholder,
(i) an Affiliate of such Shareholder, (ii) any of the lawful issue
of such Shareholder, (iii) the spouse of such Shareholder, or (iv)
any trust, partnership, custodianship or other fiduciary account
established for the exclusive benefit of such Permitted
Transferee.
“NJCB Common
Share” means a share of common stock, par value $2.00
per share, of NJCB, including for purposes of this Agreement all
shares or other voting securities into which any NJCB 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
NJCB Common Shares).
“Transfer”
means, with respect to a security, the sale, grant, assignment,
transfer, pledge, hypothecation, encumbrance, constructive sale, or
other disposition of such security or the Beneficial Ownership
thereof, or the entry into of any contract, agreement or other
obligation to effect any of the foregoing, including, for purposes
of this Agreement, the transfer or sharing of any voting power of
such security.
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 NJCB, however called, or in connection with any
written consent of NJCB’s shareholders, each Shareholder will
(x) appear at each such meeting or otherwise cause all of his or
her Owned Shares, as hereinafter defined, to be counted as present
thereat for purposes of calculating a quorum, and respond to each
request by NJCB 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 NJCB Common Shares Beneficially Owned by such
Shareholder as of the applicable record date (including any NJCB
Common Shares that such Shareholder may acquire after the date
hereof, but less any NJCB Common Shares transferred in accordance
with Section 2.4 hereof, “Owned
Shares”) and all other voting securities of or equity
interests in NJCB Beneficially Owned by such Shareholder: (i) in
favor of the adoption of the Merger Agreement (whether or not
recommended by the Board of Directors of NJCB), 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 an Acquisition Proposal or
Superior Proposal, 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 has received and reviewed a
copy of the Merger Agreement and agrees that such Shareholder will
comply with (i) Section 5.3(a) of the Merger Agreement, and (ii)
the first sentence of Section 5.3(c) of the Merger
Agreement.
2.3 Fiduciary
Duties. Nothing contained in this Agreement shall be deemed
to apply to, or limit in any manner, the obligations of any
Shareholder to comply with whatever fiduciary duties he or she may
have as a director, officer or employee of NJCB and none of the
terms of this Agreement shall be deemed to prohibit or prevent any
director or executive officer from exercising his or her fiduciary
obligations in the context of a Superior Proposal pursuant to
Section 5.3 of the Merger Agreement.
2.4 Restrictions
on Transfer. Except as otherwise agreed to by 1st
Constitution and except as contemplated by the Merger Agreement,
each Shareholder agrees from and after the date hereof not to (a)
tender into any tender or exchange offer or otherwise directly or
indirectly Transfer any Owned Shares (or any rights, options or
warrants to acquire NJCB Common Shares), or (b) grant any proxies
with respect to such Shareholder’s Owned Shares, deposit such
Shareholder’s Owned Shares into a voting trust, enter into a
voting agreement with respect to any of such Shareholder’s
Owned Shares or otherwise restrict the ability of such Shareholder
freely to exercise all voting rights with respect thereto.
Notwithstanding the foregoing, the following transfers shall be
permitted: (a) transfers by will or operation of law; (b) any
transfer to a Permitted Transferee, subject to the Permitted
Transferee first agreeing in writing to be bound by the terms of
this Agreement; (c) the withholding of NJCB Common Shares by NJCB
to satisfy tax obligations upon the vesting of any shares of
restricted stock or the exercise of stock options; and (d) such
transfers as 1st Constitution may otherwise permit in its sole
discretion. Any action attempted to be taken in violation of this
Section 2.4 will be null and void. If so requested by 1st
Constitution, each Shareholder agrees that the certificates
representing Owned Shares shall bear a legend stating that they are
subject to this Agreement.
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2.5 1st
Constitution Common Stock. Each Shareholder agrees that,
during the period beginning on the date hereof and ending on the
earlier of the Closing Date and the termination of the Merger
Agreement, such Shareholder will not, and will not authorize or
permit any of his or her Affiliates to or solicit or encourage any
other person to, purchase, sell, contract to purchase, contract to
sell, pledge, hedge, grant any option to purchase, make any short
sale, Transfer or otherwise dispose of or acquire any 1st
Constitution Common Stock, or any securities convertible into,
exchangeable for or that represent the right to receive 1st
Constitution Common Stock, whether now owned or hereinafter
acquired, owned directly by such Shareholder (including holding as
a custodian) or with respect to which such Shareholder has
Beneficial Ownership.
2.6 Release
of Claims. Each Shareholder agrees to irrevocably and
unconditionally release, remit, acquit and discharge NJCB, 1st
Constitution and the Bank, their respective past and present
subsidiaries and Affiliates, and their respective past and present
officers, directors, attorneys, accountants, shareholders, and all
successors and assigns of any of the foregoing (hereinafter
referred to as “Releasees”),
jointly and individually, from any and all claims, civil or
criminal, vested or contingent, other than Excluded Claims, which
such Shareholder and his or her heirs, successors or assigns have
or may have against Releasees to the date of this Agreement, and
from any and all liability which Releasees have or may have to such
Shareholder and his or her heirs, successors or assigns, whether
denominated claims, demands, causes of action, obligations,
damages, or liabilities arising from any and all bases, to the date
of this Agreement. For purposes of this provision, “Excluded
Claims” shall mean (i) claims for indemnification from NJCB
or advancement of expenses by NJCB by each Shareholder relating to
that certain litigation matter captioned Xxxxxx X’Xxxxxxx v.
New Jersey Community Bank, Xxxxxx XxXxxxxx, Xxxxxx Xxxxxx (Docket
No. MON-L-4711-15) and (ii) with respect to a Shareholder, any
claim unknown to such Shareholder as of the date of this
Agreement.
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 laws of the State of New Jersey (without regard to
principles of conflict of laws that would apply the law of another
jurisdiction).
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3.2 Amendments.
This Agreement may not be amended except by written agreement
signed by 1st Constitution 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.
3.5 Effectiveness
and Termination. This Agreement will become effective when
1st Constitution has received counterparts signed by all of the
other parties and itself and shall terminate on the date that the
Merger is approved by NJCB shareholders. In the event the Merger
Agreement is terminated in accordance with its terms, this
Agreement, including specifically Section 2.6 hereof and the
release granted thereunder, shall automatically terminate and be of
no further force or effect. If the Merger Agreement is amended to
decrease the Aggregate Merger Consideration or to decrease the
Merger Consideration for any Shareholder, (x) 1st Constitution
shall give written notice of such amendment to each Shareholder
within one (1) business day after the public announcement of such
amendment, and (y) each Shareholder shall have the right to
terminate this Agreement, provided that such Shareholder sends
notice to 1st Constitution and the other Shareholders of such
Shareholder’s election to terminate not later than ten (10)
business days after the public announcement of such amendment, in
which case the term of this Agreement shall end on the date 1st
Constitution receives such notice of such Shareholder’s
election to terminate. Upon any such termination pursuant to this
Section 3.5, except for any rights any party may have in respect of
any breach by any other party of its, his or her obligations
hereunder, none of the parties hereto shall have any further
obligation or liability hereunder.
IN
WITNESS WHEREOF, each party hereto has caused this Agreement to be
signed as of the date first above written.
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1st
CONSTITUTION BANCORP
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By:
_________________________
Name:
Xxxxxx X. Xxxxxxx
Title:
President and CEO
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(Shareholder signature pages follow)
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SHAREHOLDERS
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Shareholder:
___________________________
Signature:
______________________________
Title,
if applicable: _______________________
Owned
Shares: __________________________
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Notice
Address: _________________________
_______________________________________
_______________________________________
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Shareholder:
____________________________
Signature:
______________________________
Title,
if applicable: _______________________
Owned
Shares: __________________________
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Notice
Address: _________________________
_______________________________________
_______________________________________
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Shareholder:
____________________________
Signature:
______________________________
Title,
if applicable: _______________________
Owned
Shares: __________________________
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Notice
Address: _________________________
______________________________________
_______________________________________
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Shareholder:
___________________________
Signature:
_____________________________
Title,
if applicable: ______________________
Owned
Shares: _________________________
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Notice
Address: ________________________
______________________________________
______________________________________
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SHAREHOLDERS
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Shareholder:
___________________________
Signature:
______________________________
Title,
if applicable: _______________________
Owned
Shares: __________________________
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Notice
Address: _________________________
_______________________________________
_______________________________________
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Shareholder:
____________________________
Signature:
______________________________
Title,
if applicable: _______________________
Owned
Shares: __________________________
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Notice
Address: _________________________
_______________________________________
_______________________________________
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Shareholder:
____________________________
Signature:
______________________________
Title,
if applicable: _______________________
Owned
Shares: __________________________
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Notice
Address: _________________________
______________________________________
_______________________________________
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Shareholder:
___________________________
Signature:
_____________________________
Title,
if applicable: ______________________
Owned
Shares: _________________________
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Notice
Address: ________________________
______________________________________
______________________________________
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SHAREHOLDERS
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Shareholder:
___________________________
Signature:
______________________________
Title,
if applicable: _______________________
Owned
Shares: __________________________
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Notice
Address: _________________________
_______________________________________
_______________________________________
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Shareholder:
____________________________
Signature:
______________________________
Title,
if applicable: _______________________
Owned
Shares: __________________________
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Notice
Address: _________________________
_______________________________________
_______________________________________
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