AGREEMENT AND PLAN OF MERGER
Exhibit 2.1
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
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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
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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
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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
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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
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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
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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
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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
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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.
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(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.
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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
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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
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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
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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.
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(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. Xxx Xxxxxxx Xxxxxxxxx
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Xxxxxxxxxx Xxxxxxxx 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
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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
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(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.
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(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.
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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
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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
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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
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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.
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(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
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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
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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.
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(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
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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,
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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
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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
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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;
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(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.
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(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.
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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.
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Xxxxxxx Xxxxxxxxx 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
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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
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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
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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
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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
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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
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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
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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
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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.
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(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.
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(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;
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(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.
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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.
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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: | ||
| Valley National Bancorp 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. |
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| 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.
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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 | ||||
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Exhibit A to
Agreement and Plan of Merger
Agreement and Plan of Merger
AGREEMENT TO MERGE BETWEEN
VALLEY NATIONAL BANK
AND
GREATER COMMUNITY BANK
UNDER THE CHARTER OF VALLEY NATIONAL BANK,
UNDER THE TITLE OF VALLEY NATIONAL BANK
VALLEY NATIONAL BANK
AND
GREATER COMMUNITY BANK
UNDER THE CHARTER OF VALLEY NATIONAL BANK,
UNDER THE TITLE OF VALLEY NATIONAL BANK
THIS AGREEMENT made between Valley National Bank (hereinafter referred to as “VNB”), a
national banking association organized under the laws of the United States, being located at
[address], County of Passaic, in the State of New Jersey, with a capital of $[
] divided
into [
] shares of common stock, each of $5.00 par value, $[
] of surplus, and
undivided profits of $[
], as of December 31, 2007, and Greater Community Bank
(hereinafter referred to as “CB”), a state-chartered commercial bank organized under the laws of
the State of New Jersey being located at [address], County of Passaic in the State of New Jersey,
with a capital of $[
], divided into [
] shares of common stock, each of [$5.00] par
value, surplus of $[
], and undivided profits of $[
], as of December 31, 2007, each
acting pursuant to a resolution of its board of directors, adopted by the vote of a majority of its
directors, pursuant to the authority given by and in accordance with the provisions of the Act of
November 7, 1918, as amended (12 U.S.C. Section 215(a)), and the New Jersey Banking Law of 1948,
as amended, witnesseth as follows:
Section 1. CB shall be merged into VNB under the charter of VNB.
Section 2. The name of the receiving association (hereinafter referred to as the
“Association”) shall be [Venus Bank].
Section 3. The business of the Association shall be that of a national banking
Association. This business shall be conducted by the Association at its main office which shall be
located at [address], New Jersey, and at its legally established branches.
Section 4. The amount of capital stock of the Association shall be $ ,
divided into
shares of common stock, each of $___ par value, and at the Effective
Time, as hereinafter defined, the Association shall have a surplus of $
, and undivided
profits, including capital reserves, which when combined with the capital and surplus will be equal
to the combined capital structures of the merging banks as stated in the preamble of this
Agreement, adjusted however, for normal earnings and expenses between December 31, 2007, and the
Effective Time.
Section 5. All assets of each of the merging banks, as they exist at the Effective
Time, shall pass to and vest in the Association without any conveyance or other transfer. The
Association shall be responsible for all of the liabilities of every kind and description,
including liabilities arising from the operation of their respective trust departments, of each of
the merging banks existing as of the Effective Time.
Section 6. CB shall contribute to the Association its capital set forth in the
preamble, adjusted, however, for normal earnings, expenses and dividends between December 31, 2007,
and the Effective Time.
VNB shall have on hand at the Effective Time its capital as set forth in the preamble,
adjusted, however, for normal earnings, expenses and dividends between December 31, 2007 and the
Effective Time.
Section 7. The shareholder of VNB shall retain its rights in the capital stock
presently outstanding, which shall immediately and automatically become
shares of
common stock of the Association, each with $5.00 par value, and the shareholder of CB in exchange
for the excess acceptable assets contributed by CB to the Association shall be entitled to receive
shares of common stock of the Association, each with $5.00 par value.
Section 8. Neither of the banks shall declare nor pay any dividend to its shareholder
between the date of this Agreement and the time at which the merger shall become effective, nor
dispose of any of its assets in any other manner except in the ordinary course of business
consistent with prudent banking practice, provided, however, that VNB shall be entitled to pay
dividends to its parent without restriction and CB may pay dividends to its parent, consistent with
past practice, so long as the payment of such dividends shall thereby not cause a breach of any
representation, covenant, agreement or condition to which Greater Community Bancorp is subject
under the Agreement and Plan of Merger, dated as of March [___], 2008 among Valley National Bancorp,
Greater Community Bancorp, VNB and CB (the “Merger Agreement”).
Section 9. The present board of directors of VNB shall serve as the board of directors
of the Association until the next annual meeting or until such time as their successors have been
elected and have qualified.
Section 10. The merger will become effective at the time (the “Effective Time”)
specified in the merger approval to be issued by the Office of the Comptroller of the Currency. At
the Effective Time, the articles of association of the resulting bank shall read in their entirety
as set forth in Schedule 1 annexed hereto.
Section 11. This Agreement shall be terminated automatically if the Merger Agreement
is terminated as provided in the Merger Agreement.
Section 12. This Agreement shall be ratified and confirmed by the affirmative vote of
the shareholders of each of the merging banks owning at least two-thirds of its capital stock
outstanding, at a meeting to be held on the call of the directors; and the merger shall become
effective at the Effective Time.
Section 13. Each of the representations, warranties and covenants of the parties
hereto shall terminate as of the Effective Time, other than Section 5 hereof which shall survive
the Effective Time.
Section 14. This Agreement may be executed in any number of counterparts, and each
counterpart shall constitute an original instrument, but all such separate counterparts shall
constitute only one and the same instrument.
Section 15. Except as governed by federal law, the validity, construction and
enforceability of this Agreement shall be governed in all respects by the laws of the State of New
Jersey without regard to its conflicts of laws or rules.
WITNESS, the signatures and seals of the merging banks this ___day of March, 2008, each set
by its chairman, president or a vice president and attested to by its cashier or secretary,
pursuant to a resolution of its board of directors, acting by a majority.
| ATTEST: | VALLEY NATIONAL BANK | |||||||
| By: | ||||||||
| ATTEST: | GREATER COMMUNITY BANK | |||||||
| By: | ||||||||
STATE OF NEW JERSEY
|
) | |||||
| : ss. | ||||||
COUNTY OF PASSAIC
|
) | |||||
On this
day of
,
___, before me, a Notary Public for this state and
county, personally came
, as Chairman and Chief Executive Officer, and
,
as Cashier of Valley National Bank, and each of his/her capacity
acknowledged this instrument to be the act and deed of the association and the seal affixed to it
to be its seal.
WITNESS my official seal and signature this day and year.
(Seal of Notary) |
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STATE OF
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) | |||||
| : ss. | ||||||
COUNTY OF PASSAIC
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On this
day of ,
___, before me, a Notary Public for this state and county,
personally came
, as Chairman and Chief Executive Officer, and
,
as
of Greater Community Bank, and each of his/her capacity
acknowledged this instrument to be the act and deed of the corporation and the seal affixed to it
to be its seal.
WITNESS my official seal and signature this day and year.
(Seal of Notary)
Schedule 1
ARTICLES OF ASSOCIATION
OF
VALLEY NATIONAL BANK1
OF
VALLEY NATIONAL BANK1
NAME
FIRST. The title of the Association shall be “Valley National Bank”.
MAIN OFFICE
SECOND. The main office of the Association shall be in the City of , County of
, State of New Jersey. The general business of the Association shall be conducted at its
main office and its branches.
DIRECTORS
THIRD. The Board of Directors of this Association shall consist of not less than five nor
more than twenty-five directors the exact number to be fixed and determined from time to time by
resolution of a majority of the full Board of Directors or by resolution of the shareholders at any
annual or special meeting thereof. Each director shall own a $1,000 equity interest in this
Association or in a company which has control of the Association. The amount of the equity
interest shall meet this requirement if it conforms to the requirements of 12 U.S.C. 72, as amended
on March 31, 1980, or as amended from time to time thereafter. Any vacancy in the Board of
Directors may be filled by action of the Board of Directors.
ANNUAL MEETING OF SHAREHOLDERS
FOURTH. There shall be an annual meeting of the shareholders, the purpose of which shall be
the election of Directors and the transaction of whatever other business may be brought before the
meeting. The meeting shall be held at the main office of the Association or any other convenient
place as the Board of Directors may designate, on the date of each year specified therefor in the
By-laws, but if no election is held on that day, it may be held on any subsequent day according to
such lawful rules as may be prescribed by the Board of Directors.
Nominations for election to the Board of Directors may be made by the Board of Directors or by
any shareholder of any outstanding class of capital stock of the Association entitled to vote for
election of directors. Nominations other than those made by or on behalf of the existing
management of the Association, shall be made in writing and shall be delivered or mailed to the
President of the Association and to the Comptroller of the Currency, Washington, D.C., not less
than 14 days nor more than 50 days prior to any meeting of shareholders called for the election of
directors; provided, however, that if less than 21 days’ notice of the meeting is given to
shareholders, such nominations shall be mailed or delivered to the President of the
| 1 | As will be in effect after the merger. |
Association and to the Comptroller of the Currency not later than the close of business on the
seventh day following the day on which the notice of meeting was mailed. Such notification shall
contain the following information to the extent known to the notifying shareholder: (a) the name
and address of each proposed nominee; (b) the principal occupation of each proposed nominee; (c)
the total number of shares of capital stock of the Association that will be voted for each proposed
nominee; (d) the name and residence address of the notifying shareholder; and (e) the number of
shares of capital stock of the Association owned by the notifying shareholder. Nominations not
made in accordance herewith may be disregarded by the Chairman of the meeting, in his discretion,
and upon his instructions the vote tellers may disregard all votes cast for each such nominee.
CAPITAL
FIFTH. The authorized amount of capital stock of this Association shall be [ ]
shares of common stock of the par value of five dollars ($5.00) each; but said capital stock may be
increased or decreased from time to time, in accordance with the provisions of the laws of the
United States.
No holder of shares of the capital stock of any class of the Association shall have any
pre-emptive or preferential right of subscription to (i) any shares of any class of stock of the
Association, whether now or hereafter authorized, or (ii) to any obligations convertible into stock
of the Association, or (iii) to any right of subscription to any of the foregoing; except any of
the foregoing rights which the Board of Directors, in its sole discretion may from time to time
determine and at such price as the Board of Directors may from time to time fix.
The Association, at any time and from time to time, may authorize and issue debt obligations,
whether or not subordinated, without the approval of the shareholders.
OFFICERS
SIXTH. The Board of Directors shall appoint one of its members President of this Association,
who shall be Chairman of the Board, unless the Board appoints another director to be the Chairman.
The Board of Directors shall have the power to appoint one or more Vice Presidents; and to appoint
a Cashier and such other officers and employees as may be required to transact the business of this
Association.
The Board of Directors shall have the power to define the duties of the officers and employees
of the Association; to fix the salaries to be paid to them; to dismiss them; to require bonds from
them and to fix the penalty thereof; to regulate the manner in which any increase of the capital of
the Association shall be made; to manage and administer the business and affairs of the
Association; to make all By-Laws that it may be lawful for them to make; and generally to do and
perform all acts that it may be legal for a Board of Directors to do and perform.
CHANGE OF MAIN OFFICE; BRANCHES
SEVENTH. The Board of Directors shall have the power, without shareholder approval, to change
the location of the main office to any other authorized branch location within
the limits of the City of Passaic and to establish or change the location of any branch or
branches of the Association. Any change in the location of the main office to another authorized
branch location within the City of Passaic shall be effected upon written notice to the
Comptroller of the Currency. Any change in the location of the Main Office, except to an
authorized branch location within the City of Passaic, shall require both the approval of the
Comptroller of the Currency and the approval of shareholders owning two-thirds of the stock of the
Association and any such change shall be to a place not more than 30 miles from the city limits of
the City of Passaic.
EXISTENCE
EIGHTH. The corporate existence of this Association shall continue until terminated in
accordance with the laws of the United States.
SPECIAL MEETINGS OF SHAREHOLDERS; NOTICE OF MEETINGS
NINTH. The Board of Directors of this Association, or any one or more shareholders owning, in
the aggregate, not less than ten percent of the stock of this Association, may call a special
meeting of shareholders at any time. Unless otherwise provided by the laws of the United States, a
notice of the time, place, and purpose of every annual and special meeting of the shareholders
shall be given by first-class mail, postage prepaid, mailed at least ten days prior to the date of
such meeting to each shareholder of record at his address as shown upon the books of this
Association.
INDEMNIFICATION
TENTH. Any person, his heirs, executors or administrators, may be indemnified or reimbursed
by the Association for liability and reasonable expenses, including amounts paid in settlement or
in satisfaction of judgments or as fines and/or penalties, actually incurred in connection with any
action, suit or proceeding, civil or criminal, to which he or they shall be involved or threatened
to be involved, as a party, or otherwise, by reason of his being or having been a director,
officer, or employee of the Association or of any firm, corporation or organization which he served
in any such capacity at the request of the Association. Provided, however, that no person shall be
so indemnified or reimbursed in relation to any matter in such action, suit or proceeding as to
which he shall finally be adjudged to have been guilty of or liable for gross negligence, willful
misconduct or criminal acts in the performance of his duties to the Association; and, provided
further, that no person shall be so indemnified or reimbursed in relation to any matter in such
action, suit, or proceeding which has been made the subject of a compromise settlement except with:
(i) the approval of a court of competent jurisdiction or; (ii) the holders of record of a majority
of the outstanding voting shares of the Association; or (iii) the Board of Directors acting by vote
of directors not parties to the same or substantially the same action, suit, or proceeding,
constituting a majority of the whole number of directors. The foregoing right of indemnification
or reimbursement shall not be exclusive of other rights to which such persons, his heirs, executors
or administrators, may be entitled as a matter of law.
The Association may, upon the affirmative vote of a majority of its Board of Directors,
purchase insurance for the purpose of indemnifying its directors, officers and other
employees to the extent that such indemnifications are allowed in the preceding paragraph.
Such insurance may, but need not, be for the benefit of all directors, officers or employees.
AMENDMENTS
ELEVENTH. These Articles of Association may be amended at any regular or special meeting of
the shareholders by the affirmative vote of the holders of a majority of the stock of this
Association, unless the vote of the holders of a greater amount of stock is required by law, and in
that case by the vote of the holders of such greater amount.
Exhibit B to
Agreement and Plan of Merger
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
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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.
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:
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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.
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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
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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.
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-
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assessable and free and clear of all liens and encumbrances, with no personal liability
attaching to the ownership thereof.
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
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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.
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.
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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.
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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.
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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.
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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: | ||||
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Exhibit A
Warrant Certificate
Certificate Number
| Initial Issuance | ||
| Dated: | Warrants |
VOID AFTER ______________, 2015
WARRANT CERTIFICATE FOR
PURCHASE OF COMMON STOCK
VALLEY NATIONAL BANCORP
WARRANT CERTIFICATE FOR
PURCHASE OF COMMON STOCK
VALLEY NATIONAL BANCORP
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.
| VALLEY NATIONAL BANCORP | ||||||
| By: | ||||||
| [WARRANT AGENT] | By: | |||||
| As Warrant Agent |
||||||
By: |
||||||
| Authorized Officer | ||||||
Exhibit C to
Agreement and Plan of Merger
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
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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 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]
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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: | ||||||
