AGREEMENT OF MERGER
THIS AGREEMENT OF MERGER (the "Agreement") is dated as of the first day
of February 1999, by and between Independence Community Bank ("ICB"), a New
York-chartered stock savings bank, and Broad National Bank, a national
banking association ("Bank") with its executive offices located in Newark, New
Jersey.
W I T N E S S E T H:
WHEREAS, pursuant to an Agreement and Plan of Merger ("Merger
Agreement") dated as of February 1, 1999, Broad National Bancorporation
("BNC"), a New Jersey corporation, will be merged with and into ICB's parent
holding company, Independence Community Bank Corp. ("ICBC"), with the result
that the Bank will become a wholly owned subsidiary of ICBC; and
WHEREAS, the Merger Agreement provides that, simultaneously with or as
soon as practicable after the merger of BNC into the ICBC, the Bank shall be
merged with and into ICB.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and in the Merger Agreement and for
good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Bank and ICB hereby agree that, subject to the terms
and conditions hereinafter set forth, and in accordance with all applicable
laws and regulations, Bank shall be merged with and into ICB (the "Merger").
The parties hereto do hereby agree and covenant as follows:
ARTICLE I
DEFINITIONS
Except as otherwise provided herein, the capitalized terms set forth
below shall have the following meanings:
1.1 "EFFECTIVE TIME" shall mean the date and time at which the merger
contemplated by this Agreement of Merger becomes effective as provided in
Section 2.2 of this Agreement of Merger.
1.2 "MERGER" shall refer to the merger of the Bank with and into ICB
as provided in Section 2.1 of this Agreement of Merger.
1.3 "MERGING CORPORATIONS" shall collectively refer to the Bank and
ICB.
1.4 "NYBL" shall mean the New York Banking Law.
1.5 "SUPERINTENDENT" shall mean the Superintendent of the Banks of the
State of New York.
1.6 "SURVIVING CORPORATION" shall refer to ICB as the surviving
corporation of the Merger.
ARTICLE II
TERMS OF THE MERGER
2.1 THE MERGER.
(a) Subject to the terms and conditions set forth in the Merger
Agreement, at the Effective Time, the Bank shall be merged with and into ICB
pursuant to Section 601 of the NYBL and ICB shall be the Surviving
Corporation of the Merger and shall continue to be governed by the NYBL.
(b) As a result of the Merger, (i) each share of common stock, par
value $10.00 per share, of the Bank issued and outstanding immediately prior
to the Effective Time shall be cancelled and (ii) each share of common stock,
par value $1.00 per share, of ICB issued and outstanding immediately prior to
the Effective Time shall remain issued and outstanding and shall constitute
the only shares of capital stock of the Surviving Corporation issued and
outstanding immediately after the Effective Time.
(c) At the Effective Time, the Surviving Corporation shall be
considered the same business and corporate entity as each of the Merging
Corporations and thereupon and thereafter all the property, rights, powers and
franchises of each of the Merging Corporations 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
the Merging Corporations and shall have succeeded to all of each of their
relationships, fiduciary or otherwise, as fully and to the same extent as if
such property, rights, privileges, powers, franchises, debts, obligations,
duties and relationship had been originally acquired, incurred or entered into
by the Surviving Corporation. Schedule 2.1 contains a list of each of the
deposit taking offices of the Bank which shall be operated by the Surviving
Corporation as well as the home office thereof. In addition, any reference to
either of the Merging Corporations in any contract, will 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, will or document; and any pending action
or other judicial proceeding to which either of the Merger Corporations is a
party shall not be deemed to have abated or to have been 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 not been made 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 the Merger Corporations if the Merger had not occurred. After the
Effective Time, the Surviving Corporation will continue to issue savings and
other accounts on the same basis as immediately prior to the Effective Time.
2.2 EFFECTIVE TIME. The Merger shall become effective (a) on the date
and at the time immediately after which the Superintendent has (i) endorsed
his or her approval on this Agreement of Merger and caused said Agreement to
be filed with the Office of Superintendent pursuant to the provisions of
Section 601-b of the NYBL, together with such certificates and other documents
required by said Section 601-b, and (ii) filed this Agreement of Merger,
together with the officers' certificates, in the office of the clerk of the
county in which the principal office of the Surviving Corporation is located,
or (b) at such later time as may have been previously specified by both of the
parties hereto in a joint notice to the Superintendent.
2.3 NAME OF SURVIVING CORPORATION. The name of the Surviving
Corporation shall be "Independence Community Bank."
2.4 ORGANIZATION CERTIFICATE. On and after the Effective Time, the
Restated Organization Certificate of ICB shall be the Restated Organization
Certificate of the Surviving Corporation until amended in accordance with
applicable law.
2.5 BYLAWS. On and after the Effective Time, the Bylaws of ICB shall
be the Bylaws of the Surviving Corporation until amended in accordance with
applicable law.
2.6 DIRECTORS AND OFFICERS. On and after the Effective Time, until
changed in accordance with the Restated Organization Certificate and Bylaws of
the Surviving Corporation, (i) the directors of the Surviving Corporation
shall be the directors of ICB immediately prior to the Effective Time together
with the director appointed pursuant to 7.13 of the Merger Agreement and (ii)
the officers of the Surviving Corporation shall be the officers of ICB
immediately prior to the Effective Time together with the officer appointed
pursuant to Section 7.13 of the Merger Agreement. The directors and officers
of the Surviving Corporation shall hold office in accordance with the Restated
Organization Certificate and Bylaws of the Surviving Corporation.
ARTICLE III
MISCELLANEOUS
3.1 CONDITIONS PRECEDENT. The respective obligations of each party
under this Agreement of Merger shall be subject to (i) the satisfaction, or
waiver by the party permitted to do so, of the conditions set forth in Article
VIII of the Merger Agreement and (ii) the approval of this Agreement of Merger
by ICBC, in its capacity as sole stockholder of ICB and the Bank.
3.2 TERMINATION. This Agreement of Merger shall be terminated
automatically without further act or deed of either of the parties hereto in
the event of the termination of the Merger Agreement in accordance with
Section 9.1 thereof.
3.3 AMENDMENTS. To the extent permitted by the NYBL, this Agreement
of Merger may be amended by a subsequent writing signed by the parties hereto
upon the approval of the board of directors of each of the parties hereto.
3.4 SUCCESSORS. This Agreement of Merger shall be binding on the
successors of the Bank and ICB.
IN WITNESS WHEREOF, the Bank and ICB have cause this Agreement of Merger
to be executed by their duly authorized officers as of the day and year first
above written.
INDEPENDENCE COMMUNITY BANK
ATTEST:
_____________________ ________________________
Xxxx X. Xxxxxxx Xxxxxxx X. Xxxx
Senior Vice President, Chairman, President and
Secretary and Counsel Chief Executive Officer
BROAD NATIONAL BANK
ATTEST:
_____________________ _________________________
Xxxx X. Xxxxx Xxxxxx X . Xxxx
Secretary Chairman and Chief Executive Officer
