VOTING AGREEMENT
Exhibit 10.2
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
[__________________], a shareholder of New Jersey Community Bank, a
New Jersey state commercial bank (“NJCB”) (the
“Shareholder”).
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, the Shareholder is the record and Beneficial
Owner (as defined below) of that number of NJCB Common Shares (as
defined below) set forth below the 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, the
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 the Shareholder,
(i) an Affiliate of the Shareholder, (ii) any of the lawful issue
of the Shareholder, (iii) the spouse of the 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. The 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, the Shareholder will
(x) appear at each such meeting or otherwise cause all of his 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 the Shareholder’s NJCB
Common Shares Beneficially Owned by the Shareholder as of the
applicable record date (including any NJCB Common Shares that the
Shareholder may acquire after the date hereof, but less any NJCB
Common Shares transferred in accordance with Section 2.2 hereof,
“Owned
Shares”) and all other voting securities of or equity
interests in NJCB Beneficially Owned by the 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 Restrictions
on Transfer. Except as otherwise agreed to by 1st
Constitution and except as contemplated by the Merger Agreement,
the 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 the Shareholder’s Owned Shares, deposit the
Shareholder’s Owned Shares into a voting trust, enter into a
voting agreement with respect to any of the Shareholder’s
Owned Shares or otherwise restrict the ability of the 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 2.2 will be null and void. If so requested by 1st
Constitution, the Shareholder agrees that the certificates
representing Owned Shares shall bear a legend stating that they are
subject to this Agreement.
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2.3 1st
Constitution Common Stock. The 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, the Shareholder will not, and will not authorize or
permit any of his 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
the Shareholder (including holding as a custodian) or with respect
to which the Shareholder has Beneficial Ownership.
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).
3.2 Amendments.
This Agreement may not be amended except by written agreement
signed by 1st Constitution and by the 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 a counterpart signed by the
Shareholder 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 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 the
shareholders of NJCB, (x) 1st Constitution shall give written
notice of such amendment to the Shareholder within one (1) business
day after the public announcement of such amendment, and (y) the
Shareholder shall have the right to terminate this Agreement,
provided that the Shareholder sends notice to 1st Constitution of
the 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 the Shareholder’s
election to terminate. Upon any such termination pursuant to this
Section 3.5, except for any rights a party may have in respect of
any breach by the other party of its or his obligations hereunder,
neither of the parties hereto shall have any further obligation or
liability hereunder.
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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:
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Name:
Xxxxxx X. Xxxxxxx
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Title:
President and CEO
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THE SHAREHOLDER
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Shareholder:
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Signature:
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Title,
if applicable:
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Owned
Shares:
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Notice
Address:
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