EXHIBIT 2.1
AGREEMENT AND PLAN OF REORGANIZATION
By and Among
NORTH FORK BANCORPORATION, INC.
NORTH FORK BANK
and
COMMERCIAL BANK OF NEW YORK
Dated as of February 13, 2001
TABLE of CONTENTS
Page
ARTICLE I
THE MERGER
1.1 The Merger.......................................................2
1.2 Effective Time...................................................2
1.3 Effects of the Merger............................................2
ARTICLE II
EFFECT OF THE MERGER ON THE CAPITAL STOCK
OF THE CONSTITUENT BANKS; EXCHANGE OF CERTIFICATES
2.1 Effect on Capital Stock..........................................3
2.2 Exchange of Certificates.........................................4
2.3 Stock Options....................................................6
2.4 No Liability.....................................................6
2.5 Dissenters' Rights...............................................7
ARTICLE III
DISCLOSURE SCHEDULES; STANDARDS
FOR REPRESENTATIONS AND WARRANTIES
3.1 Disclosure Schedules.............................................7
3.2 Standards........................................................8
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
4.1 Corporate Organization...........................................9
4.2 Capitalization..................................................10
4.3 Authority; No Violation.........................................11
4.4 Consents and Approvals..........................................12
4.5 Reports.........................................................12
4.6 Financial Statements............................................13
4.7 Broker's Fees...................................................14
4.8 Absence of Certain Changes or Events............................14
4.9 Legal Proceedings...............................................15
4.10 Taxes...........................................................15
4.11 Employees.......................................................17
4.12 FDIC Reports....................................................18
4.13 Company Information.............................................18
4.14 Compliance with Applicable Law..................................19
4.15 Certain Contracts...............................................19
4.16 Agreements with Regulatory Agencies.............................20
4.17 Investment Securities...........................................20
4.18 Environmental Matters...........................................20
4.19 Derivative Transactions.........................................21
4.20 Opinion.........................................................22
4.21 Approvals.......................................................22
4.22 Loan Portfolio..................................................22
4.23 Property........................................................23
4.24 Assets and Liabilities of B-D Sub...............................24
ARTICLE V
REPRESENTATIONS AND WARRANTIES
OF PARENT
5.1 Corporate Organization..........................................24
5.2 Authority; No Violation.........................................25
5.3 Consents and Approvals..........................................28
5.4 Parent Information..............................................28
5.5 Financing.......................................................28
5.6 Approvals.......................................................28
ARTICLE VI
COVENANTS
6.1 Covenants of the Company Relating to the Conduct of Business....29
6.2 Covenants of Parent and Buyer Bank Relating to the Conduct
of Business.....................................................33
ARTICLE VII
ADDITIONAL AGREEMENTS
7.1 Subscription Offering...........................................33
7.2 Regulatory Matters..............................................34
7.3 Access to Information...........................................35
7.4 Stockholder Meeting.............................................36
7.5 Legal Conditions to Merger......................................37
7.6 Employee Benefit Plans; Existing Agreements.....................37
7.7 Indemnification.................................................39
7.8 Additional Agreements...........................................41
7.9 Advice of Changes...............................................41
7.10 Current Information.............................................41
7.11 New Banking Subsidiary..........................................42
7.12 Execution and Authorization of Plan of Merger...................42
7.13 Surviving Bank Plan of Merger...................................42
7.14 Non-solicitation................................................42
7.16 International Offices...........................................43
ARTICLE VIII
CONDITIONS PRECEDENT
8.1 Conditions to Each Party's Obligation To Effect the Merger......43
8.2 Conditions to Obligations of Parent and New Bank................44
8.3 Conditions to Obligations of the Company........................45
ARTICLE IX
TERMINATION AND AMENDMENT
9.1 Termination.....................................................46
9.3 Amendment.......................................................48
9.4 Extension; Waiver...............................................48
ARTICLE X
GENERAL PROVISIONS
10.1 Closing.........................................................49
10.2 Nonsurvival of Representations, Warranties and Agreements.......49
10.3 Expenses........................................................49
10.4 Notices.........................................................50
10.5 Interpretation..................................................50
10.6 Counterparts....................................................51
10.7 Entire Agreement................................................51
10.8 Governing Law...................................................51
10.9 Enforcement of Agreement........................................51
10.10 Severability....................................................51
10.11 Publicity.......................................................52
10.12 Assignment; No Third Party Beneficiaries........................52
Exhibits
Exhibit A Plan of Merger...............................................A-1
Exhibit B Main Office and Branch Offices of the Company................B-1
Exhibit C The Subscription Offering....................................C-1
AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION, dated as of
February 13, 2001 (this "Agreement"), by and among North Fork
Bancorporation, Inc., a Delaware corporation ("Parent"), North Fork Bank, a
New York chartered commercial bank and a wholly owned subsidiary of Parent
("Buyer Bank"), and Commercial Bank of New York, a New York state chartered
trust company (the "Company").
WHEREAS, Parent will organize a New York state chartered
commercial bank ("New Bank") as either a direct wholly owned subsidiary of
Parent or a direct wholly owned subsidiary of Buyer Bank;
WHEREAS, the Boards of Directors of Parent, Buyer Bank
and the Company have determined that it is in the best interests of their
respective companies and their stockholders to consummate the business
combination transaction provided for herein and in the plan of merger, as
set forth on Exhibit A (the "Plan of Merger"), in which New Bank will,
subject to the terms and conditions set forth herein and therein, merge
(the "Merger") with and into the Company;
WHEREAS, after the Effective Time (as defined below), it
is anticipated that Parent will cause the Company, as the surviving bank of
the Merger, to be merged with and into Buyer Bank; and
WHEREAS, the parties hereto desire to make certain
representations, warranties and agreements in connection with the Merger
and also to prescribe certain conditions to the Merger.
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and agreements contained herein, and intending
to be legally bound hereby, the parties agree as follows:
ARTICLE I
THE MERGER
1.1 The Merger. Subject to the terms and conditions of
this Agreement and the terms and conditions of the Plan of Merger, in
accordance with the provisions of the laws and regulations of the State of
New York, including the New York Banking Law ("N.Y.B.L") Sections 600 and
601, at the Effective Time (as defined in Section 1.2 hereof), New Bank
shall merge with and into the Company. The Company shall be the surviving
bank (hereinafter sometimes called the "Surviving Bank") in the Merger, and
shall continue its existence under the laws of the State of New York. The
name of the Surviving Bank shall continue to be Commercial Bank of New
York." Upon consummation of the Merger, the separate existence of New Bank
shall terminate.
1.2 Effective Time. Subject to the provisions of this
Agreement and the Plan of Merger, the Merger shall become effective at the
date and time set forth in the certificate which shall be issued by the
Superintendent of Banks of the New York Banking Department (the
"Superintendent") pursuant to Section 601-b of the N.Y.B.L. The "Effective
Time" shall be the date and time when the Merger becomes effective, as
specified in the certificate of the Superintendent.
1.3 Effects of the Merger. (a) At the Effective Time, (i)
the separate existence of New Bank shall cease, and New Bank's organization
certificate shall be deemed cancelled, (ii) the organization certificate of
the Company as in effect immediately prior to the Effective Time shall be
the organization certificate of the Surviving Bank until duly amended in
accordance with applicable law, (iii) the bylaws of the Company as in
effect immediately prior to the Effective Time shall be the bylaws of the
Surviving Bank until duly amended in accordance with applicable law, (iv)
the main office and branch offices of the Company, established and
authorized immediately prior to the Effective Time and listed on Exhibit B
hereto, shall become established and authorized branch offices of the
Surviving Bank and (v) the directors and officers of New Bank immediately
prior to the Effective Time shall be the directors and officers of the
Surviving Bank, each to hold office in accordance with the organization
certificate and bylaws of the Surviving Bank until their respective
successors are duly elected or appointed and qualified.
(b) At and after the Effective Time, the Merger shall
have all the effects set forth in N.Y.B.L. Section 602 and, in connection
therewith, all assets of New Bank as they exist at the Effective Time shall
pass to and vest in the Surviving Bank without any conveyance or other
transfer. The Surviving Bank shall be responsible for all liabilities and
obligations of every kind and description of each of the Company and New
Bank existing as of the Effective Time, whether matured or unmatured,
accrued, absolute, contingent or otherwise, and whether or not reflected or
reserved against on balance sheets, books of account or records of the
Company or New Bank.
ARTICLE II
EFFECT OF THE MERGER ON THE CAPITAL STOCK
OF THE CONSTITUENT BANKS; EXCHANGE OF CERTIFICATES
2.1 Effect on Capital Stock. At the Effective Time, by
virtue of the Merger and without any action on the part of Parent, Buyer
Bank, New Bank, the Company or the holders of any shares of the common
stock, par value $5.00 per share, of the Company (the "Company Common
Stock"):
(a) Conversion of Company Common Stock.
(i) At the Effective Time, each share of Company
Common Stock issued and outstanding immediately prior to the
Effective Time (other than shares of Company Common Stock (A)
owned by the Company or any Subsidiary (as defined below) of the
Company, or Parent, Buyer Bank, New Bank or any other direct or
indirect Subsidiary of Parent (except for Trust Account Shares and
DPC Shares, as such terms are defined in Section 2.1(c)) or (B)
held by stockholders ("Dissenting Stockholders") duly exercising
appraisal rights, if any, pursuant to Section 604 of the N.Y.B.L.
("Dissenting Shares" and, collectively with the shares of Company
Common Stock owned by the Company or any of its Subsidiaries or
Parent, Buyer Bank, New Bank or any other direct or indirect
Subsidiary of Parent (except for Trust Account Shares and DPC
Shares), the "Excluded Shares") shall, by virtue of the Merger and
without any action on the part of the holder thereof, be converted
into the right to receive, without interest, $ 32.00 in cash (the
"Merger Consideration"). As used in this Agreement, the word
"Subsidiary" when used with respect to any party means any
corporation, partnership or other organization, whether
incorporated or unincorporated, which is consolidated with such
party for financial reporting purposes.
(ii) As of the Effective Time, all shares of Company
Common Stock shall no longer be outstanding and shall
automatically be cancelled and retired and shall cease to exist,
and each certificate previously representing any such shares shall
thereafter represent the right to receive the Merger Consideration
upon surrender of such certificates in accordance with Section 2.2
or the right, if any, to require the Surviving Bank to purchase
such shares of Company Common Stock for their "fair value" as
determined in accordance with Section 604 of the N.Y.B.L. The
holders of such certificates previously evidencing such shares of
Company Common Stock outstanding immediately prior to the
Effective Time shall cease to have any rights with respect to such
shares of Company Common Stock as of the Effective Time except as
otherwise provided herein or by law.
(b) Common Stock of New Bank. Each share of common stock
of New Bank issued and outstanding immediately prior to the Effective Time
shall be converted into one share of common stock of the Surviving Bank.
(c) Cancellation of Treasury Stock and Parent Owned
Stock. Each share of Company Common Stock that is owned by the Company or
by any Subsidiary of the Company and each share of Company Common Stock
that is owned by Parent, Buyer Bank, New Bank or any other direct or
indirect Subsidiary of Parent immediately prior to the Effective Time
(other than shares of Company Common Stock (x) held directly or indirectly
in trust accounts, managed accounts and the like or otherwise held in a
fiduciary capacity for the benefit of third parties (such shares, whether
held directly or indirectly by Parent or the Company, being referred to
herein as "Trust Account Shares" and (y) held by Parent or the Company or
any of their respective Subsidiaries in respect of a debt previously
contracted ("DPC Shares")) shall automatically be cancelled and retired and
shall cease to exist without any conversion thereof and no consideration
shall be delivered with respect thereto.
2.2 Exchange of Certificates.
(a) Promptly after the Effective Time, the Exchange Agent
(as defined below) shall mail to each holder of record of Company Common
Stock immediately prior to the Effective Time (other than Excluded Shares)
(i) a letter of transmittal (the "Company Letter of Transmittal") (which
shall specify that delivery shall be effected, and risk of loss and title
to the Company certificates representing shares of the Company Common Stock
(the "Certificates") shall pass, only upon delivery of such Certificates to
the Exchange Agent and shall be in such form and have such other provisions
as Parent shall reasonably specify) and (ii) instructions for use in
effecting the surrender of the Certificates in exchange for the Merger
Consideration with respect to the shares of Company Common Stock formerly
represented thereby.
(b) Prior to the Effective Time, Parent shall deposit or
cause to be deposited with the party specified by Parent as the exchange
agent (the "Exchange Agent") amounts sufficient in the aggregate to provide
all funds necessary for the Exchange Agent to make payments pursuant to
Section 2.1(a)(i) hereof to holders of Company Common Stock issued and
outstanding immediately prior to the Effective Time who are entitled to
receive the Merger Consideration.
(c) Upon surrender to the Exchange Agent of Certificates,
together with the Company Letter of Transmittal, duly executed and
completed in accordance with the instructions thereto, and only upon such
surrender, the holder of such Certificate shall be entitled to receive, in
exchange therefor, and the Exchange Agent shall promptly cause to be
delivered to such holder, a check in an amount equal to the Merger
Consideration payable for each such share of Company Common Stock
represented by such Certificate, after giving effect to any required tax
withholdings or transfer taxes or other similar taxes. The Certificates
surrendered pursuant to this Section 2.2(c) shall forthwith be cancelled.
If any Certificate shall have been lost, stolen, mislaid or destroyed, then
upon receipt of an affidavit of that fact from the holder claiming such
Certificate to be lost, mislaid, stolen or destroyed and a lost certificate
indemnity (in each case reasonably satisfactory to Parent and the Exchange
Agent), the Exchange Agent shall issue to such holder the Merger
Consideration into which the shares represented by such lost, stolen,
mislaid or destroyed Certificate shall have been converted.
(d) No interest will be paid or will accrue on the amount
payable upon the surrender of any Certificate. If payment is to be made to
a person other than the registered holder of the Certificate surrendered,
it shall be a condition of such payment that the Certificate so surrendered
shall be properly endorsed and otherwise in proper form for transfer, as
determined by the Exchange Agent, and that the person requesting such
payment shall pay any transfer or other taxes required by reason of the
payment to a person other than the registered holder of the Certificate
surrendered or establish to the satisfaction of the Exchange Agent that
such tax has been paid or is not payable. One hundred eighty (180) days
following the Effective Time, Parent shall be entitled to cause the
Exchange Agent to deliver to it or any Subsidiary thereof any funds
(including any interest received with respect thereto) made available to
the Exchange Agent which have not been disbursed to holders of certificates
formerly representing shares of Company Common Stock outstanding on the
Effective Time, and thereafter such holders shall be entitled to look to
Parent only as general creditors thereof with respect to cash payable upon
due surrender of their Certificates.
(e) The Merger Consideration paid upon the surrender for
exchange of Certificates in accordance with the terms of this Article II
shall be deemed to have been paid and issued in full satisfaction of all
rights pertaining to the shares of Company Common Stock theretofore
represented by such Certificates. At the Effective Time, the stock transfer
books of the Company shall be closed, and there shall be no further
registrations of transfers of shares of Company Common Stock thereafter on
the records of the Company.
2.3 Stock Options. (a) At the Effective Time, each
outstanding option to purchase shares of Company Common Stock (a "Company
Stock Option") issued pursuant to the Commercial Bank of New York Stock
Option Plan (the "Company Stock Option Plan"), whether vested or unvested,
shall be canceled and each holder of a Company Stock Option who immediately
prior to the Effective Time is employed by the Company, any Subsidiary of
the Company or B-D Sub (as hereinafter defined) shall be entitled to
receive in exchange therefor cash in an amount equal to the product of (a)
the amount by which the Merger Consideration exceeds the exercise price per
share of such Company Stock Option, multiplied by (b) the number of shares
of Company Common Stock subject to such Company Stock Option, less any
applicable withholding taxes. Parent shall, or shall cause the Surviving
Bank to, make such cash payments to holders of Company Stock Options
promptly following the Effective Time.
(b) The Company shall take all actions that are necessary
and appropriate with respect to the Company Stock Option Plan in order to
implement the provisions of Section 2.3(a), and the Company shall ensure
that following the Effective Time no holder of a Company Stock Option or
any participant in the Company Stock Option Plan shall have any rights
thereunder to acquire any capital stock of the Company, Parent or the
Surviving Bank.
2.4 No Liability. None of Parent, Buyer Bank, New Bank,
the Company, the Exchange Agent or any other person shall be liable to any
former holder of shares of Company Common Stock for any cash properly
delivered to a public official pursuant to any applicable abandoned
property, escheat or similar law.
2.5 Dissenters' Rights. If any Dissenting Stockholder
shall be entitled to require the Company to purchase such stockholder's
shares for their "fair value," as provided in Section 604 of the N.Y.B.L.,
the Company shall give Parent notice thereof and Parent shall have the
right to participate in all negotiations and proceedings with respect to
any such demands. Neither the Company nor the Surviving Bank shall, except
with the prior written consent of Parent, voluntarily make any payment with
respect to, or settle or offer to settle, any such demand for payment. If
any Dissenting Stockholder shall fail to perfect or shall have effectively
withdrawn or lost the right to dissent, the shares held by such stockholder
shall thereupon be entitled to be surrendered in exchange for the Merger
Consideration as provided by Sections 2.1 and 2.2 hereof.
ARTICLE III
DISCLOSURE SCHEDULES; STANDARDS
FOR REPRESENTATIONS AND WARRANTIES
3.1 Disclosure Schedules. Prior to the execution and
delivery of this Agreement, the Company has delivered to Parent a schedule
(the "Company Disclosure Schedule") setting forth, among other things,
items the disclosure of which is necessary or appropriate either in
response to an express disclosure requirement contained in a provision
hereof or as an exception to one or more of the Company's representations
or warranties contained in Article IV, or to one or more of the Company's
covenants contained in Articles VI or VII; provided, however, that
notwithstanding anything in this Agreement to the contrary, (a) no such
item is required to be set forth in the Company Disclosure Schedule as an
exception to a representation or warranty (other than a representation or
warranty contained in Sections 4.2, 4.3(a), 4.3(b)(i), 4.6, 4.7,
4.8(a)(ii), 4.8(b), 4.11(a), 4.12, 4.15(a) and 4.20) if its absence would
not result in the related representation or warranty being deemed untrue or
incorrect under the standard established by Section 3.2, and (b) the mere
inclusion of an item in the Company Disclosure Schedule as an exception to
a representation or warranty shall not be deemed an admission by the
Company that such item represents a material exception or material fact,
event or circumstance or that such item has had or is reasonably likely to
have a Material Adverse Effect (as defined herein) with respect to the
Company.
3.2 Standards. (a) No representation or warranty of the
Company contained in Article IV (other than the representations and
warranties contained in Sections 4.2, 4.3(a), 4.3(b)(i), 4.6, 4.7,
4.8(a)(ii), 4.8(b), 4.11(a), 4.12, 4.15(a) and 4.20) or of Parent contained
in Article V (other than the representations and warranties contained in
Sections 5.2(a), 5.2(b), 5.2(c) and 5.4) shall be deemed untrue or
incorrect for any purpose under this Agreement, and no party hereto shall
be deemed to have breached any such representation or warranty for any
purpose under this Agreement, in any case as a consequence of the existence
or absence of any fact, circumstance or event unless such fact,
circumstance or event, individually or when taken together with all other
facts, circumstances or events inconsistent with any representations or
warranties contained in Article IV, in the case of the Company, or Article
V, in the case of Parent, has had or is reasonably likely to have a
Material Adverse Effect with respect to the Company or Parent,
respectively.
(b) As used in this Agreement, the term "Material Adverse
Effect" means, (X) with respect to the Company, a material adverse effect
on (i) the business, asset and liabilities, results of operations or
financial condition of the Company and its Subsidiaries taken as a whole,
other than (x) any reduction in the size of the business, assets and
liabilities, earnings or scale of the business relating to International
Customers that does not materially adversely affect the business, assets
and liabilities, results of operations or financial condition of the
Company and its Subsidiaries (but excluding the business relating to
International Customers) taken as a whole, or (y) any such effect
attributable to or resulting from (I) any change in banking or similar
laws, rules or regulations of general applicability or interpretations
thereof by courts or governmental authorities, (II) any change in GAAP (as
defined herein) or regulatory accounting principles, in each case which
affects banks or their holding companies generally, except to the extent
any such condition or change affects the Company to a materially greater
extent than banks or their holding companies generally, or (III) any change
in interest rates, provided, that any such change in interest rates shall
not affect the Company to a materially greater extent than banks or their
holding companies generally, and provided further, that any such change
shall not have a materially adverse effect on the credit quality of the
Company's assets, or (ii) the ability of the Company and its Subsidiaries
to consummate the transactions contemplated hereby and (Y) with respect to
Parent, a material adverse effect on the ability of Parent or any of its
Subsidiaries to consummate the transactions contemplated hereby.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Subject to Article III hereof and except as set forth in
the Company Disclosure Schedule, the Company hereby represents and warrants
to Parent as follows:
4.1 Corporate Organization. (a) The Company is a state
chartered trust company duly organized, validly existing and in good
standing under the laws of the State of New York. The Company 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. The organization certificate and by-laws of the
Company, copies of which have previously been made available to Parent, are
true and correct copies of such documents as in effect as of the date of
this Agreement. The deposit accounts of the Company are insured by the
Federal Deposit Insurance Corporation (the "FDIC") to the fullest extent
permitted by law, and all premiums and assessments required to be paid in
connection therewith have been paid when due.
(b) Each of the Company's Subsidiaries is a corporation
duly organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation or organization. Each of the Company's
Subsidiaries 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 the location of the properties and assets owned or leased by
it makes such licensing or qualification necessary. The articles of
incorporation, by-laws and similar governing documents of each Subsidiary
of the Company, copies of which have previously been made available to
Buyer, are true and correct copies of such documents as in effect as of the
date of this Agreement.
(c) The minute books of the Company and each of its
Subsidiaries contain true and correct records of all meetings and other
corporate actions held or taken since December 31, 1998 of their respective
stockholders and Boards of Directors (including committees of their
respective Boards of Directors).
4.2 Capitalization. (a) The authorized capital stock of
the Company consists of 12,000,000 shares of Company Common Stock and
12,000,000 shares of preferred stock, par value $1.00 per share (the
"Company Preferred Stock"). As of the date of this Agreement, there are (x)
5,299,593 shares of Company Common Stock outstanding and no shares of
Company Common Stock held in the Company's treasury, (y) no shares of
Company Common Stock reserved for issuance upon exercise of outstanding
stock options or otherwise except for 369,870 shares of Company Common
Stock reserved for issuance pursuant to the Company Option Plan and
described in Section 4.2(a) of the Company Disclosure Schedule, and (z) no
shares of Company Preferred Stock issued or outstanding, held in the
Company's treasury or reserved for issuance upon exercise of outstanding
stock options or otherwise. All of the issued and outstanding shares of
Company Common Stock have been duly authorized and validly issued and are
fully paid, nonassessable and free of preemptive rights, with no personal
liability attaching to the ownership thereof. Except as referred to above
or reflected in Section 4.2(a) of the Company Disclosure Schedule, the
Company does not have and is not bound by any outstanding subscriptions,
options, warrants, calls, commitments or agreements of any character
calling for the purchase or issuance of any shares of Company Common Stock
or Company Preferred Stock or any other equity security of the Company or
any securities representing the right to purchase or otherwise receive any
shares of Company Common Stock or any other equity security of the Company.
The names of the optionees, the date of each option to purchase Company
Common Stock granted, the number of shares subject to each such option, the
expiration date of each such option, and the price at which each such
option may be exercised under the Company Option Plan are set forth in
Section 4.2(a) of the Company Disclosure Schedule.
(b) Section 4.2(b) of the Company Disclosure Schedule
sets forth a true and correct list of all of the Subsidiaries of the
Company. Except as set forth in Section 4.2(b) of the Company Disclosure
Schedule, the Company owns, directly or indirectly, all of the issued and
outstanding shares of the capital stock of each of such Subsidiaries, free
and clear of all liens, charges, encumbrances and security interests
whatsoever, and all of such shares are duly authorized and validly issued
and are fully paid, nonassessable and free of preemptive rights, with no
personal liability attaching to the ownership thereof. Except as
contemplated by Section 7.1, no Subsidiary of the Company has or is bound
by any outstanding subscriptions, options, warrants, calls, commitments or
agreements of any character calling for the purchase or issuance of any
shares of capital stock or any other equity security of such Subsidiary or
any securities representing the right to purchase or otherwise receive any
shares of capital stock or any other equity security of such Subsidiary.
Assuming compliance by Parent with Section 2.3 hereof, at the Effective
Time, there will not be any outstanding subscriptions, options, warrants,
calls, commitments or agreements of any character by which the Company or
any of its Subsidiaries will be bound calling for the purchase or issuance
of any shares of the capital stock of the Company or any of its
Subsidiaries.
4.3 Authority; No Violation. (a) The Company has full
corporate power and authority to execute and deliver this Agreement and the
Plan of Merger (this Agreement and the Plan of Merger, collectively, the
"Merger Documents") and to consummate the transactions contemplated hereby
and thereby. The execution and delivery of each of the Merger Documents and
the consummation of the transactions contemplated hereby and thereby have
been duly and validly approved by the Board of Directors of the Company.
The Board of Directors of the Company has directed that the Merger
Documents and the transactions contemplated hereby and thereby be submitted
to the Company's stockholders for approval at a meeting of such
stockholders and, except for the approval and adoption of the Merger
Documents by the affirmative vote of the holders of two-thirds of the
outstanding shares of the Company Common Stock, no other corporate
proceedings on the part of the Company are necessary to approve the Merger
Documents and to consummate the transactions contemplated hereby and
thereby. Each of the Merger Documents has been duly and validly executed
and delivered by the Company, and (assuming due authorization, execution
and delivery by Parent, Buyer Bank and New Bank, as applicable) each of the
Merger Documents will constitute a valid and binding obligation of the
Company, enforceable against the Company in accordance with their
respective terms, except as enforcement may be limited by general
principles of equity whether applied in a court of law or a court of equity
and by bankruptcy, insolvency and similar laws affecting creditors' rights
and remedies generally.
(b) Except as set forth in Section 4.3(b) of the Company
Disclosure Schedule, neither the execution and delivery of the Merger
Documents by the Company, nor the consummation by the Company of the
transactions contemplated hereby or thereby, nor compliance by the Company
with any of the terms or provisions hereof or thereof, will (i) violate any
provision of the organization certificate or by-laws of the Company or the
certificate of incorporation, by-laws or similar governing documents of any
of its Subsidiaries, or (ii) assuming that the consents and approvals
referred to in Section 4.4 hereof are duly obtained, (x) violate any
statute, code, ordinance, rule, regulation, judgment, order, writ, decree
or injunction applicable to the Company or any of its Subsidiaries, or any
of their respective properties or assets, or (y) violate, conflict with,
result in a breach of any provision of or the loss of any benefit under,
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 or a
right of termination or cancellation under, accelerate the performance
required by, or result in the creation of any lien, pledge, security
interest, charge or other encumbrance upon any of the respective properties
or assets of the Company or any of its Subsidiaries 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
the Company or any of its Subsidiaries is a party, or by which they or any
of their respective properties or assets may be bound or affected.
4.4 Consents and Approvals. Except for (a) the filing of
an application with the Board of Governors of the Federal Reserve System
(the "Federal Reserve Board") under the Bank Holding Company Act of 1956,
as amended (the "BHC Act") and approval of such application, (b) the filing
of applications with the Federal Deposit Insurance Corporation ("FDIC")
under the Bank Merger Act and the Federal Deposit Insurance Act and
approval of such applications, (c) the filing of applications with the New
York State Banking Department (the "Banking Department") and the approval
of such applications, (d) the filing with the FDIC of a proxy statement in
definitive form relating to the meeting of the Company's stockholders to be
held in connection with the Merger Documents and the transactions
contemplated hereby and thereby (the "Proxy Statement"), (e) the approval
of this Agreement by the requisite vote of the stockholders of the Company,
(f) the filing of the Plan of Merger with the Superintendent pursuant to
the N.Y.B.L., (g) the filing of a notice or application with the National
Association of Securities Dealers (the "NASD") and the approval or lack of
disapproval of such notice or application or (h) the filing of a notice or
application with the Cayman Islands banking authorities and the approval or
lack of disapproval of such notice or application and (i) such filings,
authorizations or approvals as may be set forth in Section 4.4 of the
Company Disclosure Schedule, no consents or approvals of or filings or
registrations with any court, administrative agency or commission or other
governmental authority or instrumentality (each a "Governmental Entity") or
with any third party are necessary in connection with the execution and
delivery by the Company of the Merger Documents or the consummation by the
Company of the Merger and the other transactions contemplated hereby and
thereby.
4.5 Reports. The Company 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, 1998 with (i) the FDIC, (ii) any state
banking commissions or any other state regulatory authority (each a "State
Regulator") and (iii) any other self-regulatory organization ("SRO")
(collectively, with the Federal Reserve Board, the "Regulatory Agencies"),
and have paid all fees and assessments due and payable in connection
therewith. Except for normal examinations conducted by a Regulatory Agency
in the regular course of the business of the Company and its Subsidiaries,
no Regulatory Agency has initiated any proceeding or, to the knowledge of
the Company, investigation into the business or operations of the Company
or any of its Subsidiaries since December 31, 1998. Except as set forth in
Section 4.5 of the Company Disclosure Schedule, there is no unresolved
violation, criticism, or exception by any Regulatory Agency with respect to
any report or statement relating to any examinations of the Company or any
of its Subsidiaries.
4.6 Financial Statements. The Company has previously made
available to Parent copies of (a) the consolidated statements of financial
condition of the Company and its Subsidiaries as of December 31 for the
fiscal years 1998 and 1999 and the related consolidated statements of
operations, changes in shareholders' equity and cash flows for the fiscal
years 1997 through 1999, inclusive, as reported in the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1999 filed with
the FDIC, in each case accompanied by the audit report of Deloitte & Touche
LLP, independent public accountants with respect to the Company, (b) the
unaudited consolidated statements of financial condition of the Company and
its Subsidiaries as of September 30, 1999 and September 30, 2000 and the
related unaudited consolidated statements of income, cash flows and changes
in shareholders' equity for the nine-month periods then ended as reported
in the Company's Quarterly Report on Form 10-Q for the period ended
September 30, 2000 filed with the FDIC, and (c) the consolidated statements
of financial condition of the Company and its Subsidiaries as of December
31 for the fiscal years 1999 and 2000, and the related consolidated
statements of income, changes in shareholders' equity and cash flows for
the fiscal years 1998 through 2000, inclusive, as reflected in the draft of
the Company's Annual Report for the fiscal year ended December 31, 2000 to
be filed with the FDIC (the "Draft Financials"). The December 31, 1999 and
December 31, 2000 consolidated statements of financial condition of the
Company (including the related notes, where applicable) fairly present the
consolidated financial position of the Company and its Subsidiaries as of
the dates thereof, and the other financial statements referred to in this
Section 4.6 (including the related notes, where applicable) fairly present,
and the financial statements to be filed by the Company with the FDIC after
the date of this Agreement will fairly present (subject, in the case of the
unaudited statements, to recurring audit adjustments normal in nature and
amount), the results of the consolidated operations and consolidated
financial position of the Company and its Subsidiaries for the respective
fiscal periods or as of the respective dates therein set forth; each of
such statements (including the related notes, where applicable) complies,
and the financial statements to be filed by the Company with the FDIC after
the date of this Agreement will comply, with applicable accounting
requirements and with the published rules and regulations of the FDIC with
respect thereto; and each of such statements (including the related notes,
where applicable) has been, and the financial statements to be filed by the
Company with the FDIC after the date of this Agreement will be, prepared in
accordance with generally accepted accounting principles ("GAAP")
consistently applied during the periods involved, except as indicated in
the notes thereto or, in the case of unaudited statements, as permitted by
Form 10-Q. The books and records of the Company and its Subsidiaries have
been, and are being, maintained in accordance with GAAP and any other
applicable legal and accounting requirements and reflect only actual
transactions.
4.7 Broker's Fees. Neither the Company nor any Subsidiary
of the Company nor any of their respective officers or directors has
employed any broker or finder or incurred any liability for any broker's
fees, commissions or finder's fees in connection with any of the
transactions contemplated by the Company Documents, except that the Company
has engaged, and will pay a fee or commission to, Sandler, X'Xxxxx &
Partners, L.P. ("Sandler X'Xxxxx") in accordance with the terms of a letter
agreement between Sandler X'Xxxxx and the Company, a true and correct copy
of which has been previously made available to Parent.
4.8 Absence of Certain Changes or Events. (a) Except as
disclosed in any Company Report filed with the FDIC prior to the date of
this Agreement, since December 31, 1999, (i) neither the Company nor any of
its Subsidiaries has incurred any liability, except in the ordinary course
of their business consistent with their past practices, and (ii) there has
been no change or development or combination of changes or developments
which has had, or is reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on the Company.
(b) Except as disclosed in any Company Report filed with
the FDIC prior to the date of this Agreement, since December 31, 1999, the
Company and its Subsidiaries have carried on their respective businesses in
the ordinary course consistent with their past practices.
(c) Except as set forth in Section 4.8(c) of the Company
Disclosure Schedule, since January 1, 2001 neither the Company nor any of
its Subsidiaries has (i) increased the wages, salaries, compensation,
pension, or other fringe benefits or perquisites payable to any executive
officer, employee, or director from the amount thereof in effect as of
January 1, 2001 (which amount has been previously disclosed to Parent),
granted any severance or termination pay, entered into any contract to make
or grant any severance or termination pay, or paid any bonus, other than
regular annual bonus payments in respect of services rendered in 1999 or
2000, (ii) suffered any strike, work stoppage, slow-down, or other labor
disturbance, (iii) been a party to a collective bargaining agreement,
contract or other agreement or understanding with a labor union or
organization, or (iv) had any union organizing activities.
4.9 Legal Proceedings. (a) Except as set forth in Section
4.9 of the Company Disclosure Schedule, neither the Company nor any of its
Subsidiaries is a party to any, and there are no pending or, to the
Company's knowledge, threatened, legal, administrative, arbitral or other
proceedings, claims, actions or governmental or regulatory investigations
(including Regulatory Agreements, as defined in Section 4.16) of any nature
against the Company or any of its Subsidiaries or challenging the validity
or propriety of the transactions contemplated by any of the Merger
Documents.
(b) There is no injunction, order, judgment, decree, or
regulatory restriction imposed upon the Company, any of its Subsidiaries or
the assets of the Company or any of its Subsidiaries.
4.10 Taxes. (a) Except as set forth in Section 4.10(a) of
the Company Disclosure Schedule, each of the Company and its Subsidiaries
has (i) duly and timely filed (including applicable extensions granted
without penalty) all Tax Returns (as hereinafter defined) required to be
filed at or prior to the Effective Time, and such Tax Returns are true and
correct, and (ii) paid in full or made adequate provision in the financial
statements of the Company (in accordance with GAAP) for all Taxes (as
hereinafter defined). No deficiencies for any Taxes have been proposed,
asserted, assessed or, to the knowledge of the Company, threatened against
or with respect to the Company or any of its Subsidiaries. Except as set
forth in Section 4.10(a) of the Company Disclosure Schedule, (i) there are
no liens for Taxes upon the assets of either the Company or its
Subsidiaries except for statutory liens for current Taxes not yet due, (ii)
neither the Company nor any of its Subsidiaries has requested any extension
of time within which to file any Tax Returns in respect of any fiscal year
which have not since been filed and no request for waivers of the time to
assess any Taxes are pending or outstanding, (iii) with respect to each
taxable period of the Company and its Subsidiaries, the federal and state
income Tax Returns of the Company and its Subsidiaries have been audited by
the Internal Revenue Service or appropriate state tax authorities or the
time for assessing and collecting income Tax with respect to such taxable
period has closed and such taxable period is not subject to review, (iv)
neither the Company nor any of its Subsidiaries has filed or been included
in a combined, consolidated or unitary income Tax Return other than one in
which the Company was the parent of the group filing such Tax Return, (v)
neither the Company nor any of its Subsidiaries is a party to any agreement
providing for the allocation or sharing of Taxes (other than the allocation
of federal income taxes as provided by Regulation 1.1552-1(a)(1) under the
Code), (vi) neither the Company nor any of its Subsidiaries is required to
include in income any adjustment pursuant to Section 481(a) of the Code (or
any similar or corresponding provision or requirement of state, local or
foreign income Tax law), by reason of the voluntary change in accounting
method (nor has any taxing authority proposed any such adjustment or change
of accounting method), (vii) neither the Company nor any of its
Subsidiaries has filed a consent pursuant to Section 341(f) of the Code,
and (viii) neither the Company nor any of its Subsidiaries has made any
payment or provided any benefit or may be obligated to make any payment or
provide any benefit (by contract or otherwise) which will not be deductible
by reason of Section 280G or Section 162(m) of the Code.
(b) Except as set forth in Section 4.10(b) of the Company
Disclosure Schedule, neither the Company nor any of its Subsidiaries owns,
directly or indirectly (including, without limitation, through
partnerships, corporations, trusts or other entities), interests in real
property ("Real Property Interests") situated in (A) New York State, which
by reason of the Merger would be subject to either (i) the New York State
Real Property Transfer Tax, or (ii) the New York City Real Property
Transfer Tax (collectively, the "New York Transfer Taxes"), or (B) any
state other than New York State which by reason of the Merger would be
subject to any tax similar to the New York Transfer Taxes. For purposes of
this Section 4.10(b), Real Property Interests include, without limitation,
titles in fee, leasehold interests, beneficial interests, encumbrances,
developments rights or any other interests with the right to use or occupy
real property or the right to receive rents, profits or other income
derived therefrom, or any options or contracts to purchase real property.
(c) For the purposes of this Agreement, "Taxes" shall
mean all taxes, charges, fees, levies, penalties or other assessments
imposed by any United States federal, state, local or foreign taxing
authority, including, but not limited to income, excise, property, sales,
transfer, franchise, payroll, withholding, social security or other taxes,
including any interest, penalties or additions attributable thereto. For
purposes of this Agreement, "Tax Return" shall mean any return, report,
information return or other document (including any related or supporting
information) with respect to Taxes.
4.11 Employees. (a) Section 4.11(a) of the Company
Disclosure Schedule sets forth a true and correct list of each deferred
compensation plan, incentive compensation plan, equity compensation plan,
employee welfare benefit plan or program (within the meaning of Section
3(1) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")), employee pension benefit plan or program (within the meaning of
Section 3(2) of ERISA); each employment, termination or severance
agreement; and each other employee benefit plan, program, agreement or
arrangement, in each case, that is sponsored, maintained or contributed to
or required to be contributed to (the "Plans") by the Company, any of its
Subsidiaries or by any trade or business, whether or not incorporated (an
"ERISA Affiliate"), all of which together with the Company would be deemed
a "single employer" within the meaning of ERISA, for the benefit of any
employee or former employee of the Company or any Subsidiary. The Company
has heretofore made available to Buyer Bank true and correct copies of each
of the Plans.
(b) Except as set forth in Section 4.11(b) of the Company
Disclosure Schedule, (i) each of the Plans has been operated and
administered in all material respects in accordance with its terms and
applicable law, including but not limited to ERISA and the Code, (ii) each
of the Plans intended to be "qualified" within the meaning of Section
401(a) of the Code either (1) has received a favorable determination letter
from the IRS, or (2) is or will be the subject of an application for a
favorable determination letter, and the Company is not aware of any
circumstances likely to result in the revocation or denial of any such
favorable determination letter, (iii) no Plan provides benefits, including
without limitation death or medical benefits (whether or not insured), with
respect to current or former employees of the Company or its Subsidiaries
beyond their retirement or other termination of service, other than (x)
coverage mandated by applicable law, (y) deferred compensation benefits
accrued as liabilities on the books of the Company or its Subsidiaries or
(z) benefits the full cost of which is borne by the current or former
employee (or his beneficiary), (iv) no liability under Title IV of ERISA
has been incurred by the Company, its Subsidiaries or any ERISA Affiliate
that has not been satisfied in full, and no condition exists that presents
a material risk to the Company, its Subsidiaries or an ERISA Affiliate of
incurring a material liability thereunder, (v) no Plan is a "multiemployer
pension plan," as such term is defined in Section 3(37) of ERISA, (vi)
neither the Company nor any ERISA Affiliate has engaged in a transaction in
connection with which the Company, its Subsidiaries or any ERISA Affiliate
could be subject to either a civil penalty assessed pursuant to Section 409
or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the
Code, (vii) there are no pending, or, to the best knowledge of the Company,
threatened or anticipated claims or proceedings (other than routine claims
for benefits) by, on behalf of or against any of the Plans or any trusts
related thereto, (viii) the consummation of the transactions contemplated
by this Agreement will not (y) entitle any current or former employee or
officer of the Company to severance pay, termination pay or any other
payment or benefit, except as expressly provided in this Agreement or (z)
accelerate the time of payment or vesting or increase the amount or value
of compensation or benefits due any such employee or officer and (ix) all
contributions or other amounts payable by the Company, its Subsidiaries or
any ERISA Affiliates as of the Effective Time with respect to each Plan in
respect of current or prior plan years have been paid or accrued in
accordance with generally accepted accounting practices and Section 412 of
the Code.
4.12 FDIC Reports. The Company has previously made
available to Parent a true and correct copy of each (a) final registration
statement, prospectus, report, schedule and definitive proxy statement (the
"Company Reports") filed since January 1, 1998 by the Company with the FDIC
pursuant to the FDIC Rules and Regulations, (the "FDIC Rules") and (b)
communication mailed by the Company to its stockholders since January 1,
1998, and no such registration statement, prospectus, report, schedule,
proxy statement or communication contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances in which they were made, not misleading. The Company has
timely filed all Company Reports and other documents required to be filed
by it under the FDIC Rules, and, as of their respective dates, all Company
Reports complied with the published rules and regulations of the FDIC with
respect thereto.
4.13 Company Information. The information relating to the
Company and its Subsidiaries which is provided to Parent by the Company or
any of its affiliates or representatives for inclusion in any document
filed with any regulatory agency 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 Proxy Statement (except for such
portions thereof that relate only to Parent and its Subsidiaries) will
comply with the provisions of the FDIC Rules.
4.14 Compliance with Applicable Law. The Company and each
of its Subsidiaries hold, and have at all times held, all licenses,
franchises, permits and authorizations necessary for the lawful conduct of
their respective businesses under and pursuant to all, and have complied
with and are not in default in any respect under any, applicable law,
statute, order, rule, regulation, policy and/or guideline of any
Governmental Entity relating to the Company or any of its Subsidiaries, and
except as disclosed in Section 4.14 of the Company Disclosure Schedule
neither the Company nor any of its Subsidiaries knows of or has received
notice of, any violations of any of the above.
4.15 Certain Contracts. (a) Except as set forth in
Section 4.15(a) of the Company Disclosure Schedule, neither the Company nor
any of its Subsidiaries is a party to or bound by any contract,
arrangement, commitment or understanding (whether written or oral) (i) with
respect to the employment of any directors, officers, employees or
consultants, (ii) which, upon the consummation of the transactions
contemplated by the Merger Documents, will (either alone or upon the
occurrence of any additional acts or events) result in any payment or
benefits (whether of severance pay or otherwise) becoming due, or any
increase in the amount of or acceleration or vesting of any rights to any
payment or benefits, from Parent, the Company, the Surviving Bank or any of
their respective Subsidiaries to any director, officer, employee or
consultant thereof, (iii) which is a material contract (as defined in Item
601(b)(10) of Regulation S-K of the Securities and Exchange Commission) to
be performed after the date of this Agreement that has not been filed or
incorporated by reference in the Company Reports, (iv) which is a
consulting agreement (including data processing, software programming and
licensing contracts) not terminable on 60 days or less notice involving the
payment of more than $100,000 per annum, or (v) which materially restricts
the conduct of any line of business by the Company or any of its
Subsidiaries. Each contract, arrangement, commitment or understanding of
the type described in this Section 4.15(a), whether or not set forth in
Section 4.15(a) of the Company Disclosure Schedule, is referred to herein
as a "Company Contract." The Company has previously delivered or made
available to Parent true and correct copies of each Company Contract.
(b) Except as set forth in Section 4.15(b) of the Company
Disclosure Schedule, (i) each Company Contract is valid and binding and in
full force and effect, (ii) the Company and each of its Subsidiaries has
performed all obligations required to be performed by it to date under each
Company Contract, (iii) no event or condition exists which constitutes or,
after notice or lapse of time or both, would constitute, a default on the
part of the Company or any of its Subsidiaries under any Company Contract,
and (iv) no other party to such Company Contract is, to the knowledge of
the Company, in default in any respect thereunder.
4.16 Agreements with Regulatory Agencies. Neither the
Company nor any of its Subsidiaries is subject to any cease-and-desist or
other order issued by, or is a party to any written agreement, consent
agreement or memorandum of understanding with, or is a party to any
commitment letter or similar undertaking to, or is subject to any order or
directive by, or is a recipient of any extraordinary supervisory letter
from, or has adopted any board resolutions at the request of (each, whether
or not set forth on Section 4.16 of the Company Disclosure Schedule, a
"Regulatory Agreement"), any Regulatory Agency or other Governmental Entity
that restricts the conduct of its business or that in any manner relates to
its capital adequacy, its credit policies, its management or its business,
nor has the Company or any of its Subsidiaries been advised by any
Regulatory Agency or other Governmental Entity that it is considering
issuing or requesting any Regulatory Agreement.
4.17 Investment Securities. Section 4.17 of the Company
Disclosure Schedule sets forth the book and market value as of December 31,
2000 of the investment securities, mortgage backed securities and
securities held for sale of the Company and its Subsidiaries. Section 4.17
of the Company Disclosure Schedule sets forth, with respect to such
securities, descriptions thereof, CUSIP numbers, pool face values and
coupon rates.
4.18 Environmental Matters. Except as set forth in
Section 4.18 of the Company Disclosure Schedule:
(a) Each of the Company and its Subsidiaries and, to the
knowledge of the Company, each of the Participation Facilities and the Loan
Properties (each as hereinafter defined) are and have been in compliance
with all applicable foreign, federal, state and local laws including common
law, regulations and ordinances and with all applicable decrees, orders and
contractual obligations relating to pollution or the discharge of, or
exposure to Hazardous Materials (as hereinafter defined) in the environment
or workplace ("Environmental Laws");
(b) There is no suit, claim, action or proceeding,
pending or, to the knowledge of the Company, threatened, before any
Governmental Entity or other forum in which the Company, any of its
Subsidiaries, any Participation Facility or any Loan Property, has been or,
with respect to threatened proceedings, may be, named as a defendant (x)
for alleged noncompliance (including by any predecessor), with any
Environmental Laws, or (y) relating to the release, threatened release or
exposure to any Hazardous Material whether or not occurring at or on a site
owned, leased or operated by the Company or any of its Subsidiaries, any
Participation Facility or any Loan Property;
(c) During the period of (x) the Company's or any of its
Subsidiaries' ownership or operation of any of their respective current or
former properties, (y) the Company's or any of its Subsidiaries'
participation in the management of any Participation Facility, or (z) to
the knowledge of the Company, the Company's or any of its Subsidiaries'
interest in a Loan Property, there has been no release of Hazardous
Materials in, on, under or affecting any such property. To the knowledge of
the Company, prior to the period of (x) the Company's or its Subsidiaries'
ownership or operation of any of their respective current or former
properties, (y) the Company's or any of its Subsidiaries' participation in
the management of any Participation Facility, or (z) the Company's or any
of its Subsidiaries' interest in a Loan Property, there was no release or
threatened release of Hazardous Materials in, on, under or affecting any
such property, Participation Facility or Loan Property; and
(d) The following definitions apply for purposes of this
Section 4.18: (x) "Hazardous Materials" means any chemicals, pollutants,
contaminants, wastes, toxic substances, petroleum or other regulated
substances or materials, (y) "Loan Property" means any property in which
the Company or any of its Subsidiaries holds a security interest, and,
where required by the context, said term means the owner or operator of
such property; and (z) "Participation Facility" means any facility in which
the Company or any of its Subsidiaries participates in the management and,
where required by the context, said term means the owner or operator of
such property.
4.19 Derivative Transactions. Except as set forth in
Section 4.19 of the Company Disclosure Schedule, since December 31, 1999,
neither the Company nor any of its Subsidiaries has engaged in transactions
in or involving forwards, futures, options on futures, swaps or other
derivative instruments except (i) as agent on the order and for the account
of others, or (ii) as principal for purposes of hedging interest rate risk
on U.S. dollar-denominated securities and other financial instruments. None
of the counterparties to any contract or agreement with respect to any such
instrument is in default with respect to such contract or agreement and no
such contract or agreement, were it to be a Loan (as defined below) held by
the Company or any of its Subsidiaries, would be classified as "Other Loans
Specially Mentioned", "Special Mention", "Substandard", "Doubtful", "Loss",
"Classified", "Criticized", "Credit Risk Assets", "Concerned Loans" or
words of similar import. The financial position of the Company and its
Subsidiaries on a consolidated basis under or with respect to each such
instrument has been reflected in the books and records of the Company and
such Subsidiaries in accordance with GAAP consistently applied, and no open
exposure of the Company or any of its Subsidiaries with respect to any such
instrument (or with respect to multiple instruments with respect to any
single counterparty) exceeds $250,000.
4.20 Opinion. Prior to the execution of this Agreement,
the Company has received an opinion from Sandler X'Xxxxx to the effect that
as of the date thereof and based upon and subject to the matters set forth
therein, the Merger Consideration is fair to the stockholders of the
Company from a financial point of view. Such opinion has not been amended
or rescinded as of the date of this Agreement.
4.21 Approvals. As of the date of this Agreement, the
Company knows of no reason why all regulatory approvals required for the
consummation of the transactions contemplated hereby should not be
obtained.
4.22 Loan Portfolio. (a) Except as set forth in Section
4.22 of the Company Disclosure Schedule, neither the Company nor any of its
Subsidiaries is a party to any written or oral (i) loan agreement, note or
borrowing arrangement (including, without limitation, leases, credit
enhancements, commitments, guarantees and interest-bearing assets)
(collectively, "Loans"), other than any Loan the unpaid principal balance
of which does not exceed $100,000, under the terms of which the obligor
was, as of December 31, 2000, over 90 days delinquent in payment of
principal or interest or in default of any other provision, or (ii) Loan
with any director, executive officer or five percent or greater stockholder
of the Company or any of its Subsidiaries, or to the knowledge of the
Company, any person, corporation or enterprise controlling, controlled by
or under common control with any of the foregoing. Section 4.22 of the
Company Disclosure Schedule sets forth (i) all of the Loans in original
principal amount in excess of $100,000 of the Company or any of its
Subsidiaries that as of December 31, 2000, were classified by any bank
examiner (whether regulatory or internal) as "Other Loans Specially
Mentioned", "Special Mention", "Substandard", "Doubtful", "Loss",
"Classified", "Criticized", "Credit Risk Assets", "Concerned Loans", "Watch
List" or words of similar import, together with the principal amount of and
accrued and unpaid interest on each such Loan and the identity of the
borrower thereunder, (ii) by category of Loan (i.e., commercial, consumer,
etc.), all of the other Loans of the Company and its Subsidiaries that as
of December 31, 2000, were classified as such, together with the aggregate
principal amount of and accrued and unpaid interest on such Loans by
category and (iii) each asset of the Company that as of December 31, 2000,
was classified as "Other Real Estate Owned" and the book value thereof. The
Company shall promptly inform Buyer Bank in writing of any Loan that
becomes classified in the manner described in the previous sentence, or any
Loan the classification of which is changed, at any time after the date of
this Agreement.
(b) Each Loan in original principal amount in excess of
$250,000 (i) is evidenced by notes, agreements or other evidences of
indebtedness which are true, genuine and what they purport to be, (ii) to
the extent secured, has been secured by valid liens and security interests
which have been perfected and (iii) is the 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.
4.23 Property. Each of the Company and its Subsidiaries
has good and marketable title free and clear of all liens, encumbrances,
mortgages, pledges, charges, defaults or equitable interests to all of the
properties and assets, real and personal, tangible or intangible, which are
reflected on the consolidated statement of financial condition of the
Company as of December 31, 2000 or acquired after such date, except (i)
liens for taxes not yet due and payable or contested in good faith by
appropriate proceedings, (ii) pledges to secure deposits and other liens
incurred in the ordinary course of business, (iii) such imperfections of
title, easements and encumbrances, if any, as do not interfere with the use
of the property as such property is used on the date of this Agreement,
(iv) for dispositions and encumbrances of, or on, such properties or assets
in the ordinary course of business or (v) mechanics', materialmen's,
workmen's, repairmen's, warehousemen's, carrier's and other similar liens
and encumbrances arising in the ordinary course of business. All leases
pursuant to which the Company or any of its Subsidiaries, as lessee, leases
real or personal property are valid and enforceable in accordance with
their respective terms and neither the Company nor any of its Subsidiaries
nor, to the knowledge of the Company, any other party thereto is in default
thereunder.
4.24 Assets and Liabilities of B-D Sub. Immediately prior
to the consummation of the Subscription Offering (as defined below), the
assets and liabilities of the B-D Sub (as defined below) shall consist
generally of the types of assets and liabilities set forth in Section 4.24
of the Company Disclosure Schedule.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
OF PARENT
Subject to Article III hereof and except as set forth in
the Parent Disclosure Schedule, Parent hereby represents and warrants to
the Company as follows:
5.1 Corporate Organization. (a) Parent is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware. Parent 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. Parent is duly
registered as a bank holding company under the BHC Act.
(b) Buyer Bank is a commercial bank duly organized,
validly existing and in good standing under the laws of the State of New
York. The deposit accounts of Buyer Bank are insured by the FDIC to the
fullest extent permitted by law, and all premiums and assessments required
in connection therewith have been paid when due. Buyer Bank 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. Each of Parent's other Subsidiaries is a
corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation. Each of Parent's other
Subsidiaries 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.
(c) Prior to the Effective Time, New Bank will be a
commercial bank duly organized, validly existing and in good standing under
the laws of the State of New York. The deposit accounts of New Bank will be
insured by the FDIC to the fullest extent permitted by law, and all
premiums and assessments required in connection therewith will be paid when
due. New Bank will have the corporate power and authority to own or lease
all of its properties and assets and to carry on its business, and will be
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.
5.2 Authority; No Violation. (a) (i) Parent has full
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. 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
Parent, and no other corporate proceedings on the part of Parent are
necessary to approve this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by Parent and (assuming due authorization, execution and delivery
by the Company) this Agreement constitutes a valid and binding obligation
of Parent, enforceable against Parent in accordance with its terms, except
as enforcement may be limited by general principles of equity whether
applied in a court of law or a court of equity and by bankruptcy,
insolvency and similar laws affecting creditors' rights and remedies
generally.
(ii) Neither the execution and delivery of this
Agreement by Parent nor the consummation by Parent of the
transactions contemplated hereby, nor compliance by Parent with
any of the terms or provisions hereof, will (A) violate any
provision of the restated certificate of incorporation or bylaws
of Parent or the articles of incorporation or by-laws or similar
governing documents of any of its Subsidiaries or (B) assuming
that the consents and approvals referred to in Section 5.3 are
duly obtained, (x) violate any statute, code, ordinance, rule,
regulation, judgment, order, writ, decree or injunction applicable
to Parent or any of its Subsidiaries or any of their respective
properties or assets, or (y) violate, conflict with, result in a
breach of any provision of or the loss of any benefit under,
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 or a right of termination or cancellation under,
accelerate the performance required by, or result in the creation
of any lien, pledge, security interest, charge or other
encumbrance upon any of its properties or assets of Parent or any
of its Subsidiaries 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 Parent
or any of its Subsidiaries is a party, or by which they or any of
their respective properties or assets may be bound or affected.
(b) (i) Buyer Bank has full corporate power and authority
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby. 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 Buyer Bank, and no other
corporate proceedings on the part of Buyer Bank are necessary to approve
this Agreement and to consummate the transactions contemplated hereby. This
Agreement has been duly and validly executed and delivered by Buyer Bank
and (assuming due authorization, execution and delivery by the Company)
this Agreement constitutes a valid and binding obligation of Buyer Bank,
enforceable against Buyer Bank in accordance with its terms, except as
enforcement may be limited by general principles of equity whether applied
in a court of law or a court of equity and by bankruptcy, insolvency and
similar laws affecting creditors' rights and remedies generally.
(ii) Neither the execution and delivery of this
Agreement by Buyer Bank nor the consummation by Buyer Bank of the
transactions contemplated hereby, nor compliance by Buyer Bank
with any of the terms or provisions hereof, will (A) violate any
provision of the organization certificate or bylaws of Buyer Bank
or (B) assuming that the consents and approvals referred to in
Section 5.3 are duly obtained, (x) violate any statute, code,
ordinance, rule, regulation, judgment, order, writ, decree or
injunction applicable to Buyer Bank or any of its properties or
assets, or (y) violate, conflict with, result in a breach of any
provision of or the loss of any benefit under, 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 or
a right of termination or cancellation under, accelerate the
performance required by, or result in the creation of any lien,
pledge, security interest, charge or other encumbrance upon any of
its properties or assets of Buyer Bank 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 Buyer Bank is a party, or by which it or any
of its properties or assets may be bound or affected.
(c) (i) Prior to the Effective Time, New Bank will have
the full corporate power and authority to execute and deliver the Plan of
Merger and to consummate the transactions contemplated thereby. The
execution and delivery of the Plan of Merger and the consummation of the
transactions contemplated thereby will be duly and validly approved by the
Board of Directors and sole stockholder of New Bank, and no other corporate
proceedings on the part of New Bank will be necessary to approve the Plan
of Merger and to consummate the transactions contemplated thereby. Prior to
the Effective Time, the Plan of Merger will be duly and validly executed
and delivered by New Bank and (assuming due authorization, execution and
delivery by the Company) the Plan of Merger will constitute a valid and
binding obligation of New Bank, enforceable against New Bank in accordance
with its terms, except as enforcement may be limited by general principles
of equity whether applied in a court of law or a court of equity and by
bankruptcy, insolvency and similar laws affecting creditors' rights and
remedies generally.
(ii) Neither the execution and delivery of the Plan
of Merger by New Bank nor the consummation by New Bank of the
transactions contemplated thereby, nor compliance by New Bank with
any of the terms or provisions thereof, will (A) violate any
provision of the organization certificate or bylaws of New Bank or
(B) assuming that the consents and approvals referred to in
Section 5.3 are duly obtained, (x) violate any statute, code,
ordinance, rule, regulation, judgment, order, writ, decree or
injunction applicable to New Bank or any of its properties or
assets, or (y) violate, conflict with, result in a breach of any
provision of or the loss of any benefit under, 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 or
a right of termination or cancellation under, accelerate the
performance required by, or result in the creation of any lien,
pledge, security interest, charge or other encumbrance upon any of
its properties or assets of New Bank 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 New Bank will be a party, or by which it or
any of its properties or assets may be bound or affected.
5.3 Consents and Approvals. Except for (a) the filing of
an application with the Federal Reserve Board under the BHC Act, and
approval of such application, (b) the filing of applications with the FDIC
under the Bank Merger Act and the Federal Deposit Insurance Act and
approval of such applications, (c) the filing of applications with the
Banking Department and approval of such applications, (d) the filing with
the FDIC of the Proxy Statement, (e) the approval of this Agreement by the
requisite vote of the stockholders of the Company, (f) the filing of the
Plan of Merger with the Superintendent pursuant to the N.Y.B.L., (g) the
filing of a notice or application with the NASD and the approval or lack of
disapproval of such notice or application, (h) the filing of a notice or
application with the Cayman Islands banking authorities and the approval or
lack of disapproval of such notice or application and (i) such filings,
authorizations or approvals as have been previously disclosed in writing by
Parent to the Company, no consents or approvals of or filings or
registrations with any Governmental Entity or with any third party are
necessary (x) in connection with the execution and delivery by Parent and
Buyer Bank of this Agreement or the consummation by Parent and Buyer Bank
of the Merger and the other transactions contemplated hereby or (y) in
connection with the execution and delivery by New Bank of the Plan of
Merger or the consummation by New Bank of the Merger and the other
transactions contemplated thereby.
5.4 Parent Information. The information relating to
Parent, New Bank or any of Parent's other Subsidiaries to be contained in
the Proxy Statement, or in any other document filed with any other
regulatory agency 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.
5.5 Financing. Parent or a Subsidiary of Parent will have
at the Effective Time sufficient funds to permit Parent to perform its
obligations under Section 2.1 hereof.
5.6 Approvals. As of the date of this Agreement, Parent
knows of no reason why all regulatory approvals required for the
consummation of the transactions contemplated hereby should not be
obtained.
ARTICLE VI
COVENANTS
6.1 Covenants of the Company Relating to the Conduct of
Business. During the period from the date of this Agreement and continuing
until the Effective Time, except as expressly contemplated or permitted by
this Agreement or with the prior written consent of Parent, the Company and
its Subsidiaries shall carry on their respective businesses in the ordinary
course consistent with past practice and consistent with prudent banking
practice. Except as otherwise contemplated by this Agreement, the Company
will use reasonable best efforts to (x) preserve its business organization
and that of its Subsidiaries intact, (y) keep available to itself and
Parent the present services of the employees of the Company and its
Subsidiaries and (z) preserve for itself and Parent the goodwill of the
customers of the Company and its Subsidiaries and others with whom business
relationships exist. Without limiting the generality of the foregoing, and
except as set forth in Section 6.1 of the Company Disclosure Schedule or as
otherwise contemplated by this Agreement or consented to in writing by
Parent, the Company shall not, and shall not permit any of its Subsidiaries
to:
(a) solely in the case of the Company, declare or pay any
dividends on, or make other distributions in respect of, any shares of its
capital stock, other than normal quarterly dividends not in excess of $.085
per share of Company Common Stock;
(b) (i) split, combine or reclassify any shares of its
capital stock or issue or authorize or propose the issuance of any other
securities in respect of, in lieu of or in substitution for shares of its
capital stock, (ii) repurchase, redeem or otherwise acquire (except for the
acquisition of Trust Account Shares and DPC Shares, as such terms are
defined in Section 2.1(c) hereof) any shares of the capital stock of the
Company or any Subsidiary of the Company, or any securities convertible
into or exercisable for any shares of the capital stock of the Company or
any Subsidiary of the Company; or (iii) issue, deliver or sell, or
authorize or propose the issuance, delivery or sale of, any shares of its
capital stock or any securities convertible into or exercisable for, or any
rights, warrants or options to acquire, any such shares, or enter into any
agreement with respect to any of the foregoing, except, in the case of
clauses (i) and (iii), for the issuance of Company Common Stock upon the
exercise or fulfillment of rights or options issued or existing pursuant to
employee benefit plans, programs or arrangements, all to the extent
outstanding and in existence on the date of this Agreement and in
accordance with their present terms;
(c) amend its organization certificate, by-laws or other
similar governing documents;
(d) authorize any of its officers, directors, or agents
to directly or indirectly solicit, initiate or encourage any inquiries
relating to, or the making of any proposal which constitutes, a "takeover
proposal" (as defined below), or recommend or endorse any takeover
proposal, or participate in any discussions or negotiations, or provide
third parties with any nonpublic information, relating to any such inquiry
or proposal or otherwise facilitate any effort or attempt to make or
implement a takeover proposal; provided, however, that the Company may
communicate information about any such takeover proposal to its
stockholders if, in the judgment of the Company's Board of Directors, based
upon the advice of outside counsel, such communication is required under
applicable law; provided further, however, that nothing contained in this
Section 6.1(d) shall prohibit the Company from furnishing information to,
or entering into discussions or negotiations with, any person or entity
that makes an unsolicited, bona fide takeover proposal that constitutes a
Superior Proposal (as defined below) in each case if, and only to the
extent that (A) such actions occur at a time prior to approval of the
Merger Agreement by the Company's stockholders, (B) the Board of Directors
of the Company concludes in good faith, after consultation with and based
upon the advice of outside counsel, that it is required to do so in order
to comply with its fiduciary duties to the Company's stockholders under
applicable law, and (C) prior to taking such action, the Company receives
from such person or entity an executed confidentiality agreement and an
executed standstill agreement, each in reasonably customary form (provided
that such agreements shall contain terms that are no less restrictive than
the terms of any such agreement between Buyer and the Company). For
purposes of this Agreement, "Superior Proposal" means any bona fide written
takeover proposal for or in respect of all of the outstanding shares of
Company Common Stock, (i) on terms that the Board of Directors of the
Company determines in its good faith judgment (after consultation with a
financial advisor of nationally recognized reputation and taking into
account all the terms and conditions of the takeover proposal deemed
relevant by such Board of Directors, including the consideration to be paid
pursuant thereto, any break-up fees, expense reimbursement provisions,
conditions to consummation, and the ability of the party making such
proposal to obtain financing therefor) are more favorable from a financial
point of view to its stockholders than the Merger, and (ii) that
constitutes a transaction that, in such Board of Directors' good faith
judgment, is reasonably likely to be consummated on the terms set forth,
taking into account all legal, financial, regulatory and other aspects of
such proposal. The Company will immediately cease and cause to be
terminated any existing activities, discussions or negotiations previously
conducted with any parties other than Parent with respect to any of the
foregoing. The Company will take all actions necessary or advisable to
inform the appropriate individuals or entities referred to in the first
sentence hereof of the obligations undertaken in this Section 6.1(d). The
Company will notify Parent immediately if any such inquiries or takeover
proposals are received by, any such information is requested from, or any
such negotiations or discussions are sought to be initiated or continued
with, the Company, and the Company will promptly inform Parent in writing
of all of the relevant details with respect to the foregoing. As used in
this Agreement, "takeover proposal" shall mean any tender or exchange
offer, proposal for a merger, consolidation or other business combination
involving the Company or any Subsidiary of the Company or any proposal or
offer to acquire in any manner a substantial equity interest in, or a
substantial portion of the assets of, the Company or any Subsidiary of the
Company other than the transactions contemplated or permitted by this
Agreement;
(e) make any capital expenditures other than those which
(i) are made in the ordinary course of business or are necessary to
maintain existing assets in good repair and (ii) in any event are in an
amount of no more than $500,000 in the aggregate;
(f) enter into any new line of business;
(g) acquire or agree to acquire, by merging or
consolidating with, or by purchasing a substantial equity interest in or a
substantial portion of the assets of, or by any other manner, any business
or any corporation, partnership, association or other business organization
or division thereof or otherwise acquire any assets, which would be
material, individually or in the aggregate, to the Company, other than in
connection with foreclosures, settlements in lieu of foreclosure or
troubled loan or debt restructurings in the ordinary course of business
consistent with prudent banking practices;
(h) take any action that is intended or may reasonably be
expected to result in any of its representations and warranties set forth
in this Agreement being or becoming untrue in any material respect, or in
any of the conditions to the Merger set forth in Article VIII not being
satisfied;
(i) change its methods of accounting in effect at
December 31, 2000 except as required by changes in GAAP or regulatory
accounting principles as concurred to by the Company's independent
auditors;
(j) (i) except as required by applicable law or as
required to maintain qualification pursuant to the Code, and other than in
connection with the formation of B-D Sub, the transfer of Company Employees
to B-D Sub as permitted by this Agreement and the approval of compensation
and employee benefit plans and third-party administrative agreements by B-D
Sub, adopt, amend, renew or terminate any employee benefit plan (including,
without limitation, any Plan) or any agreement, arrangement, plan or policy
between the Company or any Subsidiary of the Company and one or more of its
current or former directors, officers or employees or (ii) except for
normal increases in the ordinary course of business consistent with past
practice or except as required by applicable law, increase in any manner
the compensation or fringe benefits of any director, officer or employee or
pay any benefit not required by any Plan or agreement as in effect as of
the date hereof (including, without limitation, the granting of stock
options, stock appreciation rights, restricted stock, restricted stock
units or performance units or shares);
(k) other than activities in the ordinary course of
business consistent with past practice, sell, lease, encumber, assign or
otherwise dispose of, or agree to sell, lease, encumber, assign or
otherwise dispose of, any of its material assets, properties or other
rights or agreements;
(l) other than in the ordinary course of business
consistent with past practice, incur any indebtedness for borrowed money or
assume, guarantee, endorse or otherwise as an accommodation become
responsible for the obligations of any other individual, corporation or
other entity;
(m) file any application to relocate or terminate the
operations of any banking office of it or any of its Subsidiaries;
(n) make any equity investment or commitment to make such
an investment in real estate or in any real estate development project,
other than in connection with foreclosures, settlements in lieu of
foreclosure or troubled loan or debt restructurings in the ordinary course
of business consistent with prudent banking practices;
(o) create, renew, amend or terminate or give notice of a
proposed renewal, amendment or termination of, any material contract,
agreement or lease for goods, services or office space to which the Company
or any of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries or their respective properties is bound, or permit any lease
for office space to expire without giving reasonable prior notice to
Parent;
(p) other than in prior consultation with Parent,
restructure or materially change its investment securities portfolio,
through purchases, sales or otherwise, or the manner in which the portfolio
is classified or reported; or
(q) agree to do any of the foregoing.
6.2 Covenants of Parent and Buyer Bank Relating to the
Conduct of Business. During the period from the date of this Agreement and
continuing until the Effective Time, except as expressly contemplated or
permitted by this Agreement or with the prior written consent of the
Company and its Subsidiaries, Parent and Buyer Bank shall carry on their
respective businesses in the ordinary course consistent with prudent
banking practice. Except as otherwise contemplated by this Agreement or
consented to in writing by the Company, Parent and Buyer Bank shall not,
and shall not permit any of its Subsidiaries to take any action that is
intended or may reasonably be expected to result in any of their respective
representations and warranties set forth in this Agreement being or
becoming untrue in any material respect, or in any of the conditions to the
Merger set forth in Article VIII not being satisfied.
ARTICLE VII
ADDITIONAL AGREEMENTS
7.1 Subscription Offering. (a) From and after the date of
this Agreement, the Company shall or shall cause the B-D Sub to use all
reasonable efforts to promptly prepare and file on an appropriate form a
registration statement with the Securities and Exchange Commission
registering the B-D Sub Common Stock to be issued and sold in the
Subscription Offering and use all reasonable efforts to have such
registration statement declared effective. Following the effectiveness of
such registration statement, the Company or the B-D Sub, as the case may
be, shall commence the Subscription Offering at such time as will permit
the Subscription Offering to be consummated shortly prior to the Effective
Time.
(b) Immediately following the Subscription Offering and
prior to the Effective Time, the Company shall transfer and sell to the B-D
Sub, and shall cause the B-D Sub to purchase from the Company, all shares
of the B-D Sub Common Stock held by the Company for an aggregate purchase
price equal to the amount by which the book value of the assets of the B-D
Sub exceed the book value of the liabilities of B-D Sub, in each case as of
the day immediately preceding the consummation of the Subscription
Offering.
(c) The following definitions apply for purposes of this
Agreement: (i) "B-D Sub" means CBNY Investment Services Corp. (ii) "B-D Sub
Common Stock" means the common stock, par value $1.00 per share, of B-D
Sub; and (iii) "Subscription Offering" means the issuance of shares of B-D
Sub Common Stock pursuant to the exercise of subscription rights as
described on Exhibit C.
7.2 Regulatory Matters. (a) The Company shall promptly
prepare and file with the FDIC the Proxy Statement no later than thirty
days after the date of this Agreement and, upon clearance thereof by the
FDIC, shall promptly mail the Proxy Statement to its stockholders.
(b) The parties hereto shall cooperate with each other
and use their reasonable best efforts to promptly prepare and file all
necessary documentation, to effect all applications, notices, petitions and
filings, and to obtain as promptly as practicable all permits, consents,
approvals and authorizations of all third parties and Governmental Entities
which are necessary or advisable to consummate the transactions
contemplated by this Agreement. The Company and Parent shall have the right
to review in advance, and to the extent practicable each will consult the
other on, in each case subject to applicable laws relating to the exchange
of information, all the information relating to the Company or Parent, as
the case may be, and any of their respective Subsidiaries, which appears in
any filing made with, or written materials submitted to, any third party or
any Governmental Entity in connection with the transactions contemplated by
this Agreement. In exercising the foregoing right, each of the parties
hereto shall act reasonably and as promptly as practicable. The parties
hereto agree that they will consult with each other with respect to the
obtaining of all permits, consents, approvals and authorizations of all
third parties and Governmental Entities necessary or advisable to
consummate the transactions contemplated by the Merger Documents and each
party will keep the other apprised of the status of matters relating to
completion of the transactions contemplated herein.
(c) Parent and the Company shall, upon request, furnish
each other with all information concerning themselves, their Subsidiaries,
directors, officers and stockholders and such other matters as may be
reasonably necessary or advisable in connection with the Proxy Statement,
or any other statement, filing, notice or application made by or on behalf
of Parent or the Company or any of their respective Subsidiaries to any
Governmental Entity in connection with the Merger and the other
transactions contemplated by the Merger Documents.
(d) Parent and the Company shall promptly furnish each
other with copies of written communications received by Parent or the
Company, as the case may be, or any of their respective Subsidiaries,
Affiliates or Associates (as such terms are defined in Rule 12b-2 under the
Exchange Act as in effect on the date of this Agreement) from, or delivered
by any of the foregoing to, any Governmental Entity in respect of the
transactions contemplated hereby.
7.3 Access to Information. (a) Upon reasonable notice and
subject to applicable laws relating to the exchange of information, the
Company shall, and shall cause each of its Subsidiaries to, afford to the
officers, employees, accountants, counsel and other representatives of
Parent, access, during normal business hours during the period prior to the
Effective Time, to all its properties, books, contracts, commitments,
records, officers, employees, accountants, counsel and other
representatives and, during such period, the Company shall, and shall cause
its Subsidiaries to, make available to Parent (i) a copy of each report,
schedule, registration statement and other document filed or received by it
during such period pursuant to the requirements of Federal securities laws
or Federal or state banking laws (other than reports or documents which the
Company is not permitted to disclose under applicable law), (ii) upon
request by Parent from time to time, an updated true and correct schedule
containing the type of information set forth in Section 7.3(a) of the
Company Disclosure Schedule and (iii) all other information concerning its
business, properties and personnel as Parent may reasonably request.
Neither the Company nor any of its Subsidiaries shall be required to
provide access to or to disclose information where such access or
disclosure would violate or prejudice the rights of the Company's
customers, jeopardize any attorney-client privilege or contravene any law,
rule, regulation, order, judgment, decree, fiduciary duty or binding
agreement entered into prior to the date of this Agreement. The parties
hereto will make appropriate substitute disclosure arrangements under
circumstances in which the restrictions of the preceding sentence apply.
(b) All information furnished by the Company to the
Parent or its representatives pursuant hereto shall be treated as the sole
property of the Company and, if the Merger shall not occur, the Parent and
its representatives shall return to the Company all of such written
information and all documents, notes, summaries or other materials
containing, reflecting or referring to, or derived from, such information.
The Parent shall, and shall use its best efforts to cause its
representatives to, keep confidential all such information, and shall not
directly or indirectly use such information for any competitive or other
commercial purpose. The obligation to keep such information confidential
shall continue for ten years from the date the proposed Merger is abandoned
and shall not apply to (i) any information which (x) was already in the
Parent's possession prior to the disclosure thereof by the Company; (y) was
then generally known to the public; or (z) was disclosed to the Parent by a
third party not bound by an obligation of confidentiality or (ii)
disclosures made as required by law. It is further agreed that, if in the
absence of a protective order or the receipt of a waiver hereunder the
Parent is nonetheless, in the opinion of its counsel, compelled to disclose
information concerning the Company to any tribunal or governmental body or
agency or else stand liable for contempt or suffer other censure or
penalty, the Parent may disclose such information to such tribunal or
governmental body or agency without liability hereunder.
(c) No investigation by the Parent or its representatives
shall affect the representations, warranties, covenants or agreements of
the Company set forth herein.
7.4 Stockholder Meeting. The Company shall take all steps
necessary to duly call, give notice of, convene and hold a meeting of its
stockholders to be held as soon as is reasonably practicable for the
purpose of voting upon the approval of the Merger Documents and the
consummation of the transactions contemplated hereby and thereby. The
Company will, through its Board of Directors, recommend to its stockholders
approval of the Merger Documents and the transactions contemplated hereby
and thereby and such other matters as may be submitted to its stockholders
in connection with the Merger Documents (collectively, the "CBNY
Shareholder Matters"). The Company shall not (i) withdraw or modify, or
propose publicly to withdraw or modify, in a manner adverse to Parent, the
approval or recommendation by the Company of the CBNY Shareholders Matters,
(ii) approve or recommend, or propose publicly to approve or recommend, any
takeover proposal or (iii) enter into any letter of intent, agreement in
principle, acquisition agreement or other similar agreement (each, an
"Acquisition Agreement") related to any takeover proposal. Notwithstanding
the foregoing, in the event the Board of Directors of the Company
determines in good faith, after consultation with outside counsel, that in
light of a Superior Proposal it is necessary to do so in order to comply
with its fiduciary duties to the Company's shareholders under applicable
law, and provided the Company is not in breach of, and has not breached,
any of the provisions of Section 6.1(d), the Company may terminate this
Agreement solely in order to concurrently enter into an Acquisition
Agreement with respect to a Superior Proposal, but only after the third day
following Parent's receipt of written notice advising Parent that the Board
of Directors of the Company is prepared to accept a Superior Proposal, and
only if, during such three-day period, if Parent so elects, the Company and
its advisors shall have negotiated in good faith with Parent to make such
adjustments in the terms and conditions of this Agreement as would enable
the Company to proceed with the transactions contemplated herein on such
adjusted terms.
7.5 Legal Conditions to Merger. Each of Parent, Buyer
Bank and the Company shall, and shall cause its Subsidiaries to, use their
reasonable best efforts (a) to take, or cause to be taken, all actions
necessary, proper or advisable to comply promptly with all legal
requirements which may be imposed on such party or its Subsidiaries with
respect to the Merger and, subject to the conditions set forth in Article
VIII hereof, to consummate the transactions contemplated by the Merger
Documents and (b) to obtain (and to cooperate with the other party to
obtain) any consent, authorization, order or approval of, or any exemption
by, any Governmental Entity and any other third party which is required to
be obtained by the Company, Parent or Buyer Bank or any of their respective
Subsidiaries in connection with the Merger and the other transactions
contemplated by the Merger Documents, and to comply with the terms and
conditions of such consent, authorization, order or approval.
7.6 Employee Benefit Plans; Existing Agreements. (a)
Effective as of the Effective Time, the employees of the Company and its
Subsidiaries (the "Company Employees") shall be eligible to participate in
Parent's or Buyer Bank's employee benefit plans (including severance plans)
in which similarly situated employees of Buyer Bank participate, to the
same extent as similarly-situated employees of Buyer Bank (it being
understood that inclusion of Company Employees in such employee benefit
plans may occur at different times with respect to different plans);
provided, however, that Parent shall, or shall cause the Surviving Bank to,
continue the comparable plans of the Company and its Subsidiaries for the
exclusive benefit of Company Employees without adverse amendment thereto
until such time as Company Employees become eligible to participate in
plans of Parent or Buyer Bank.
(b) With respect to each Parent or Buyer Bank plan that
covers the Company Employees, for purposes of determining eligibility to
participate, vesting, and entitlement to benefits, including for severance
benefits and vacation entitlement (but not for defined benefit pension
accrual), service with the Company and its Subsidiaries (or credited by the
Company or its Subsidiaries) shall be treated as service with Buyer Bank.
Such service also shall apply for purposes of satisfying any waiting
periods, evidence of insurability requirements, or the application of any
preexisting condition limitations. Company Employees shall be given credit
for amounts paid under a comparable benefit plan during the same period for
purposes of applying deductibles, copayments and out-of-pocket maximums as
though such amounts had been paid in accordance with the terms and
conditions of the Parent or Buyer Bank plan.
(c) Parent shall honor and shall cause the Surviving Bank
to honor, in accordance with their terms, all employment, severance and
other compensation agreements and arrangements existing prior to the
execution of this Agreement which are between the Company or any of its
Subsidiaries and any director, officer or employee thereof and which have
been disclosed in the Company Disclosure Schedule.
(d) The Company shall be permitted to, and shall permit
its Subsidiaries to, pay bonuses in accordance with their respective past
practices for services through December 31, 2000, and the compensation with
respect to which bonuses are paid for any individual shall be for the
period of time that has elapsed since the payment of the last bonus. In
addition, at the Effective Time each Company Employee shall be entitled to
receive a bonus in respect of 2001 equal to the bonus received by such
Company Employee for the period ended as of December 31, 2000, multiplied
by a fraction, the numerator of which shall be the number of days from
December 31 through the date on which the Effective Time occurs and the
denominator of which is 365.
(e) The Company shall take all actions that are necessary
and appropriate to cause the employer matching contributions that have been
credited to the Company Employees' employer matching accounts under the
Company's 401(k) Profit-Sharing Plan immediately prior to the Effective
Time to be fully vested, effective as of the Effective Time.
(f) The Company shall be permitted to pay reasonable
retention bonuses to Company Employees after prior consultation with
Parent.
7.7 Indemnification. (a) In the event of any threatened
or actual claim, action, suit, proceeding or investigation, whether civil,
criminal or administrative, including, without limitation, any such claim,
action, suit, proceeding or investigation in which any person who is now,
or has been at any time prior to the date of this Agreement, or who becomes
prior to the Effective Time, a director or officer of the Company or any of
its Subsidiaries (the "Indemnified Parties") is, or is threatened to be,
made a party based in whole or in part on, or arising in whole or in part
out of, or pertaining to (i) the fact that he is or was a director or
officer of the Company, any of the Subsidiaries of the Company or any of
their respective predecessors or (ii) this Agreement or any of the
transactions contemplated hereby, whether in any case asserted or arising
before or after the Effective Time, the parties hereto agree to cooperate
and use their best efforts to defend against and respond thereto. It is
understood and agreed that after the Effective Time, Parent shall indemnify
and hold harmless, as and to the extent permitted by law, each such
Indemnified Party against any losses, claims, damages, liabilities, costs,
expenses (including reasonable attorney's fees and expenses in advance of
the final disposition of any claim, suit, proceeding or investigation to
each Indemnified Party to the fullest extent permitted by law upon receipt
of any undertaking required by applicable law), judgments, fines and
amounts paid in settlement in connection with any such threatened or actual
claim, action, suit, proceeding or investigation, and in the event of any
such threatened or actual claim, action, suit, proceeding or investigation
(whether asserted or arising before or after the Effective Time), the
Indemnified Parties may retain counsel reasonably satisfactory to them
after consultation with Parent; provided, however, that (1) Parent shall
have the right to assume the defense thereof with counsel reasonably
acceptable to the Indemnified Party and upon such assumption Parent shall
not be liable to any Indemnified Party for any legal expenses of other
counsel or any other expenses subsequently incurred by any Indemnified
Party in connection with the defense thereof, except that if Parent elects
not to assume such defense or counsel for the Indemnified Parties
reasonably advises that there are issues which raise conflicts of interest
between Parent and the Indemnified Parties, the Indemnified Parties may
retain counsel reasonably satisfactory to them after consultation with
Parent, and Parent shall pay the reasonable fees and expenses of such
counsel for the Indemnified Parties, (2) Parent shall in all cases be
obligated pursuant to this paragraph to pay for only one firm of counsel
with respect to any claim, action or suit for all Indemnified Parties, (3)
Parent shall not be liable for any settlement effected without its prior
written consent (which consent shall not be unreasonably withheld) and (4)
Parent shall have no obligation hereunder to any Indemnified Party when and
if a court of competent jurisdiction shall ultimately determine, and such
determination shall have become final and nonappealable, that
indemnification of such Indemnified Party in the manner contemplated hereby
is prohibited by applicable law. Any Indemnified Party wishing to claim
Indemnification under this Section 7.7, upon learning of any such claim,
action, suit, proceeding or investigation, shall promptly notify Parent
thereof, provided that the failure to so notify shall not affect the
obligations of Parent under this Section 7.7 except to the extent such
failure to notify prejudices Parent. Parent's obligations under this
Section 7.7 shall continue in full force and effect for a period of six (6)
years from the Effective Time; provided, however, that all rights to
indemnification in respect of any claim (a "Claim") asserted or made within
such period shall continue until the final disposition of such Claim.
(b) Parent shall cause the persons serving as officers
and directors of the Company immediately prior to the Effective Time to be
covered for a period of six (6) years from the Effective Time by the
directors' and officers' liability insurance policy maintained by the
Company (provided that Parent may substitute therefor policies of at least
the same coverage and amounts containing terms and conditions which are not
less advantageous than such policy) with respect to acts or omissions
occurring prior to the Effective Time which were committed by such officers
and directors in their capacity as such; provided, however, that in no
event shall Parent be required to expend on an annual basis more than 175%
of the current amount expended by the Company (the "Insurance Amount") to
maintain or procure insurance coverage, and further provided that if Parent
is unable to maintain or obtain the insurance called for by this Section
7.7(b) Parent shall use all reasonable efforts to obtain as much comparable
insurance as is available for the Insurance Amount.
(c) In the event Parent or any of its successors or
assigns (i) consolidates with or merges into any other person and shall not
be the continuing or surviving corporation or entity of such consolidation
or merger, or (ii) transfers or conveys all or substantially all of its
properties and assets to any person, then, and in each such case, to the
extent necessary, proper provision shall be made so that the successors and
assigns of Parent assume the obligations set forth in this section.
(d) The provisions of this Section 7.7 are intended to be
for the benefit of, and shall be enforceable by, each Indemnified Party and
his or her heirs and representatives.
7.8 Additional Agreements. In case at any time after the
Effective Time any further action is necessary or desirable to carry out
the purposes of this Agreement or to vest the Surviving Bank with full
title to all properties, assets, rights, approvals, immunities and
franchises of any of the parties to the Merger, the proper officers and
directors of each party to this Agreement and their respective Subsidiaries
shall take all such necessary action as may be reasonably requested by
Parent.
7.9 Advice of Changes. Parent and the Company shall
promptly advise the other party of any change or event having a Material
Adverse Effect on it or which it believes would or would be reasonably
likely to cause or constitute a material breach of any of its
representations, warranties or covenants contained herein. From time to
time prior to the Effective Time (and on the date prior to the Closing
Date), each party will supplement or amend its Disclosure Schedules
delivered in connection with the execution of this Agreement to reflect any
matter which, if existing, occurring or known at the date of this
Agreement, would have been required to be set forth or described in such
Disclosure Schedules or which is necessary to correct any information in
such Disclosure Schedules which has been rendered inaccurate thereby. No
supplement or amendment to such Disclosure Schedules shall have any effect
for the purpose of determining satisfaction of the conditions set forth in
Sections 8.2(a) or 8.3(a) hereof, as the case may be, or the compliance by
the Company or Parent, as the case may be, with the respective covenants
and agreements of such parties contained herein.
7.10 Current Information. During the period from the date
of this Agreement to the Effective Time, the Company will cause one or more
of its designated representatives to confer on a regular and frequent basis
(not less than monthly) with representatives of Parent and to report the
general status of the ongoing operations of the Company and its
Subsidiaries. The Company will promptly notify Parent of any material
change in the normal course of business or in the operation of the
properties of the Company or any of its Subsidiaries and of any
governmental complaints, investigations or hearings (or communications
indicating that the same may be contemplated), or the institution or the
threat of significant litigation involving the Company or any of its
Subsidiaries, and will keep Parent fully informed of such events.
7.11 New Banking Subsidiary. Parent shall use all
reasonable efforts to cause New Bank to be organized as either a direct
wholly owned subsidiary of Parent or a direct wholly owned subsidiary of
Buyer Bank, as Parent shall determine.
7.12 Execution and Authorization of Plan of Merger. As
soon as reasonably practicable after the date hereof, (a) Parent shall (i)
cause the Board of Directors of New Bank to approve the Plan of Merger,
(ii) cause New Bank to execute and deliver the Plan of Merger, and (iii)
approve as the sole stockholder, or cause the sole stockholder of New Bank
to approve, the Plan of Merger, and (b) the Company shall execute and
deliver the Plan of Merger.
7.13 Surviving Bank Plan of Merger. If requested by
Parent, the Company will enter into a plan of merger of like tenure to the
Plan of Merger providing for the merger of the Surviving Bank with and into
the Buyer Bank.
7.14 Non-solicitation
(a) From and after the date of this Agreement and until
the Effective Time, neither the Company nor the B-D Sub shall solicit nor
permit any of their officers, directors or employees, from soliciting, any
"Domestic Customers" (as defined below) to become customers of B-D Sub or
of any other "Financial Institution" (as defined below).
(b) Nothing contained in this Agreement or otherwise
shall be construed to prohibit the Company or B-D Sub or the officers,
directors, employees or stockholders of either, from soliciting
International Customers (as defined below) to become or continue as
customers of B-D Sub either before or after the Effective Time.
(c) "Domestic Customers" shall mean all customers of the
Company and its Subsidiaries (other than B-D Sub) who are not
"International Customers." "International Customers" shall mean all
customers, including loan customers, deposit customers and advisory,
custodial or investment management customers whose account(s) are
maintained by the Company or any of its Subsidiaries in accordance with
historical practice as part of the Private International Banking Division
of the Company. "Financial Institution" shall mean any FDIC-insured
depositary institution, trust company, broker-dealer, investment adviser,
insurance company, insurance agency, or corporation or other entity
controlled by any of the foregoing, other than (x) Parent, Buyer Bank or
the Company, or (y) any controlling corporation or Subsidiary of any of the
foregoing except for B-D Sub.
7.15 Certain Company Employees.
(a) Non-solicitation of Employees. From and after the
date of this Agreement and until the date three years after the Effective
Time, the B-D Sub shall not employ or seek to employ or solicit employment
of those individuals listed by name or job description in Section 7.15(a)
of the Company Disclosure Schedule.
(b) Certain Employees. Nothing in this Agreement or
otherwise shall prohibit the B-D Sub, before or after the Effective Time,
from offering employment or continuing employment to those individuals
listed by name or job description in Section 7.15(b) of the Company
Disclosure Schedule, or prohibit or preclude any such individuals from
accepting any such offers.
7.16 International Offices. If Parent so elects at its
sole discretion, by delivery of written notice to the Company on or before
the day that is 45 days after the date of this Agreement, the Company shall
surrender to the appropriate authorities or cancel, which surrender shall
have been accepted or cancellation shall have become effective at or prior
to the Effective Time, any license, approval, registration, or similar
authorization issued to or for any such office identified in Section 7.16
of the Company Disclosure Schedule, it being understood and agreed that the
Company may condition such transfer, surrender or cancellation on the
satisfaction of the conditions contained in Article VIII hereof.
ARTICLE VIII
CONDITIONS PRECEDENT
8.1 Conditions to Each Party's Obligation To Effect the
Merger. The respective obligations of each party to effect the Merger shall
be subject to the satisfaction at or prior to the Effective Time of the
following conditions:
(a) Stockholder Approval. The Merger Documents shall have
been approved and adopted by the requisite vote of the holders of the
outstanding shares of Company Common Stock under applicable law.
(b) Other Approvals. All regulatory approvals required to
consummate the transactions contemplated hereby (including the Merger)
shall have been obtained and shall remain in full force and effect and all
statutory waiting periods in respect thereof shall have expired (all such
approvals and the expiration of all such waiting periods being referred to
herein as the "Requisite Regulatory Approvals").
(c) No Injunctions or Restraints; Illegality. No order,
injunction or decree issued by any court or agency of competent
jurisdiction or other legal restraint or prohibition (an "Injunction")
preventing the consummation of the Merger shall be in effect. No statute,
rule, regulation, order, injunction or decree shall have been enacted,
entered, promulgated or enforced by any Governmental Entity which
prohibits, restricts or makes illegal consummation of the Merger.
8.2 Conditions to Obligations of Parent and New Bank. The
obligation of Parent and New Bank to effect the Merger is also subject to
the satisfaction or waiver by Parent and New Bank at or prior to the
Effective Time of the following conditions:
(a) Subscription Offering. The Subscription Offering
shall have been consummated by the Company
(b) Representations and Warranties. (i) Subject to
Section 3.2, the representations and warranties of the Company set forth in
this Agreement (other than those set forth in Sections 4.2, 4.3(a),
4.3(b)(i), 4.6, 4.7, 4.8(a)(ii), 4.8(b), 4.11(a), 4.12, 4.15(a) and 4.20)
shall be true and correct as of the date of this Agreement and (except to
the extent such representations and warranties speak as of an earlier date)
as of the Closing Date as though made on and as of the Closing Date; and
(ii) the representations and warranties of the Company set forth in
Sections 4.2, 4.3(a), 4.3(b)(i), 4.6, 4.7, 4.8(a)(ii), 4.8(b), 4.11(a),
4.12, 4.15(a) and 4.20 of this Agreement shall be true and correct in all
material respects (without giving effect to Section 3.2 of this Agreement)
as of the date of this Agreement and (except to the extent such
representations and warranties speak as of an earlier date) as of the
Closing Date as though made on and as of the Closing Date. Parent shall
have received a certificate signed on behalf of the Company by the Chief
Executive Officer and the Chief Financial Officer of the Company to the
foregoing effect.
(c) Performance of Obligations of the Company. The
Company shall have performed in all material respects all obligations
required to be performed by it under this Agreement at or prior to the
Closing Date, and, Parent shall have received a certificate signed on
behalf of the Company by the Chief Executive Officer and the Chief
Financial Officer of the Company to such effect.
(d) Consents Under Agreements. The consent, approval or
waiver of each person (other than the Governmental Entities referred to in
Section 8.1(c)) whose consent or approval shall be required in order to
permit the succession by the Surviving Bank pursuant to the Merger to any
obligation, right or interest of the Company or any Subsidiary of the
Company under any loan or credit agreement, note, mortgage, indenture,
lease, license or other agreement or instrument shall have been obtained,
except where the failure to obtain such consent, approval or waiver would
not have a Material Adverse Effect on the Company.
(e) No Pending Governmental Actions. No proceeding
initiated by any Governmental Entity seeking an Injunction shall be
pending.
8.3 Conditions to Obligations of the Company. The
obligation of the Company to effect the Merger is also subject to the
satisfaction or waiver by the Company at or prior to the Effective Time of
the following conditions:
(a) Subscription Offering. The Subscription Offering
shall have been consummated by the Company
(b) Representations and Warranties. (i) Subject to
Section 3.2, the representations and warranties of Parent (other than those
set forth in Sections 5.2(a), 5.2(b), 5.2(c) and 5.4) set forth in this
Agreement shall be true and correct as of the date of this Agreement and
(except to the extent such representations and warranties speak as of an
earlier date) as of the Closing Date as though made on and as of the
Closing Date; and (ii) the representations and warranties of Buyer Bank set
forth in Sections 5.2(a), 5.2(b), 5.2(c) and 5.4 of this Agreement shall be
true and correct in all material respects (without giving effect to Section
3.2 of this Agreement) as of the date of this Agreement and (except to the
extent such representations and warranties speak as of an earlier date) as
of the Closing Date as though made on and as of the Closing Date. The
Company shall have received a certificate signed on behalf of Parent by the
Chief Executive Officer or any Executive Vice President of Parent to the
foregoing effect.
(c) Performance of Obligations of Parent, Buyer Bank and
New Bank. Parent, Buyer Bank and New Bank shall have performed in all
material respects all obligations required to be performed by each of them
under the Merger Documents at or prior to the Closing Date, and the Company
shall have received a certificate signed on behalf of each of Parent by the
Chief Executive Officer or any Executive Vice President of each of Parent
to such effect.
(d) No Pending Governmental Actions. No proceeding
initiated by any Governmental Entity seeking an Injunction shall be
pending.
ARTICLE IX
TERMINATION AND AMENDMENT
9.1 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 stockholders of the
Company:
(a) by mutual consent of the Company and Parent in a
written instrument, if the Board of Directors of each so determines by a
vote of a majority of the members of its entire Board;
(b) by either Parent or the Company upon written notice
to the other party (i) 60 days after the date on which any request or
application for a Requisite Regulatory Approval shall have been denied or
withdrawn at the request or recommendation of the Governmental Entity which
must grant such Requisite Regulatory 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 9.1(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 or otherwise prohibiting the Merger;
(c) by either Parent or the Company if the Merger shall
not have been consummated on or before October 31, 2001, 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; provided, however,
that if the Company seeks to terminate this Agreement pursuant to this
Section 9.1(c), it shall provide written notice to Parent no later than
October 29, 2001, and if prior to October 31, 2001, Parent shall notify the
Company that it seeks to extend the termination date in this Section 9.1(c)
to December 31, 2001, then this Agreement may not be terminated pursuant to
this Section 9.1(c) until such date;
(d) by either Parent or the Company if any approval of
the stockholders of the Company 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 stockholders or at any
adjournment or postponement thereof, provided however, that the Company may
not terminate this Agreement pursuant to his Section 9.1(d) if the Company
is in material breach of any of its obligations under Section 7.4;
(e) by either Parent or the Company (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 representations or warranties set
forth in this Agreement on the part of the other party, which breach is not
cured within thirty days following written notice to the party committing
such breach, or which breach, by its nature, cannot be cured prior to the
Closing; provided, however, that neither party shall have the right to
terminate this Agreement pursuant to this Section 9.1(e) unless the breach
of representation or warranty, together with all other such breaches, would
entitle the party receiving such representation not to consummate the
transactions contemplated hereby under Section 8.2(a) (in the case of a
breach of representation or warranty by the Company) or Section 8.3(a) (in
the case of a breach of representation or warranty by Parent);
(f) by either Parent or the Company (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, 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 Parent, if the Board of Directors of the Company
does not publicly recommend in the Proxy Statement that the Company's
stockholders approve and adopt the Merger Documents or if, after
recommending in the Proxy Statement that stockholders approve and adopt the
Merger Documents, the Board of Directors of the Company shall have
withdrawn, modified or amended such recommendation in any manner adverse to
Parent; or
(h) by the Company, without any further action, if the
Company shall have entered into an Acquisition Agreement with any party
other than Parent as permitted by and in accordance with Section 7.4
hereof.
9.2 Effect of Termination; Expenses. (a) In the event of
termination of this Agreement by either Parent or the Company as provided
in Section 9.1, this Agreement shall forthwith become void and have no
effect except that (i) Sections 7.2(b), 9.2 and 10.4 shall survive any
termination of this Agreement, and (ii) notwithstanding anything to the
contrary contained in this Agreement, no party shall be relieved or
released from any liabilities or damages arising out of its willful breach
of any provision of this Agreement.
(b) If the Company terminates this Agreement pursuant to
Section 9.1 (h), the Company shall pay to Parent a termination fee of
$5,250,000 by wire transfer of same funds on the date of termination.
9.3 Amendment. Subject to compliance with applicable law,
this Agreement may be amended by the parties hereto, by action taken or
authorized by their respective Boards of Directors, at any time before or
after approval of the matters presented in connection with the Merger by
the stockholders of the Company; provided, however, that after any approval
of the transactions contemplated by this Agreement by the Company's
stockholders, there may not be, without further approval of such
stockholders, any amendment of this Agreement which reduces the amount or
changes the form of the consideration to be delivered to the Company
stockholders hereunder other than as contemplated by this Agreement. This
Agreement may not be amended except by an instrument in writing signed on
behalf of each of the parties hereto.
9.4 Extension; Waiver. At any time prior to the Effective
Time, each of the parties hereto, by action taken or authorized by its
Board of Directors, may, to the extent legally allowed, (a) extend the time
for the performance of any of the obligations or other acts of the other
party hereto, (b) waive any inaccuracies in the representations and
warranties of the other party contained herein or in any document delivered
pursuant hereto and (c) waive compliance by the other party with any of its
agreements contained herein, or waive compliance with any of the conditions
to its obligations hereunder. Any agreement on the part of a party hereto
to any such extension or waiver shall be valid only if set forth in a
written instrument signed on behalf of such party, but such extension or
waiver or failure to insist on strict compliance with an obligation,
covenant, agreement or condition shall not operate as a waiver of, or
estoppel with respect to, any subsequent or other failure.
ARTICLE X
GENERAL PROVISIONS
10.1 Closing. Subject to the terms and conditions of this
Agreement, the closing of the Merger (the "Closing") will take place at
10:00 a.m. on the first day which is (a) the last business day of a month
and (b) at least two business days after the satisfaction or waiver
(subject to applicable law) of the latest to occur of the conditions set
forth in Article VIII hereof (other than those conditions which relate to
actions to be taken at the Closing)(the "Closing Date"), at the offices of
the Company's counsel unless another time, date or place is agreed to in
writing by the parties hereto.
10.2 Nonsurvival of Representations, Warranties and
Agreements. None of the representations, warranties, covenants and
agreements in this Agreement or the Plan of Merger or in any instrument
delivered pursuant to this Agreement shall survive the Effective Time,
except for those covenants and agreements contained herein and therein
which by their terms apply in whole or in part after the Effective Time.
10.3 Expenses. All costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby
shall be paid by the party incurring such expense, provided, however, that
the costs and expenses of printing and mailing the Proxy Statement to the
stockholders of the Company, and all filing and other fees paid to the FDIC
or any other Governmental Entity in connection with the Merger and the
other transactions contemplated hereby, shall be borne equally by Parent
and the Company, provided further, however, that nothing contained herein
shall limit either party's rights to recover any liabilities or damages
arising out of the other party's willful breach of any provision of this
Agreement.
10.4 Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given if delivered
personally, telecopied (with confirmation), mailed by registered or
certified mail (return receipt requested) or delivered by an express
courier (with confirmation) to the parties at the following addresses (or
at such other address for a party as shall be specified by like notice):
(a) if to Parent or Buyer Bank, to
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
(000) 000-0000
Attn: Xxxxxx X. Xxxxx
with a copy to:
Xxxxxxx, Mag & Fizzell, P.C.
000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xx. Xxxxx, XX 00000
Facsimile (000) 000-0000
Attn: Xxxxxx X. Xxxxxxx, Esq.
and
(b) if to the Company, to:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile:(000) 000-0000
Attn: Xxxxx Xxxxxx
with a copy to:
Skadden, Arps Slate, Xxxxxxx
& Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxxxx, Esq.
10.5 Interpretation. When a reference is made in this
Agreement to Sections, Exhibits or Schedules, such reference shall be to a
Section of or Exhibit or Schedule to this Agreement unless otherwise
indicated. The table of contents and headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning
or interpretation of this Agreement. Whenever the words "include",
"includes" or "including" are used in this Agreement, they shall be deemed
to be followed by the words "without limitation".
10.6 Counterparts. This Agreement may be executed in
counterparts, all of which shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that
all parties need not sign the same counterpart.
10.7 Entire Agreement. This Agreement (including the
documents and the instruments referred to herein), together with the
Confidentiality Agreement between Parent and the Company dated February 11,
2001, constitutes the entire agreement and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect
to the subject matter hereof.
10.8 Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of New York, without
regard to any applicable conflicts of law.
10.9 Enforcement of Agreement. The parties hereto agree
that irreparable damage would occur in the event that the provisions
contained in and Section 8.2(c) of this Agreement were not performed in
accordance with its specific terms or was otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of Section 7.2(c) of this Agreement and to
enforce specifically the terms and provisions thereof in any court of the
United States or any state having jurisdiction, this being in addition to
any other remedy to which they are entitled at law or in equity.
10.10 Severability. Any term or provision of this
Agreement which is invalid or unenforceable in any jurisdiction shall, as
to that jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining
terms and provisions of this Agreement or affecting the validity or
enforceability of any of the terms or provisions of this Agreement in any
other jurisdiction. If any provision of this Agreement is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
10.11 Publicity. Except as otherwise required by law or
by the rules of the NYSE or The NASDAQ Stock Market, so long as this
Agreement is in effect, neither Buyer Bank nor the Company shall, or shall
permit any of its Subsidiaries to, issue or cause the publication of any
press release or other public announcement with respect to, or otherwise
make any public statement concerning, the transactions contemplated by this
Agreement without the consent of the other party, which consent shall not
be unreasonably withheld.
10.12 Assignment; No Third Party Beneficiaries. Neither
this Agreement nor any of the rights, interests or obligations hereunder
shall be assigned by any of the parties hereto (whether by operation of law
or otherwise) without the prior written consent of the other parties.
Subject to the preceding sentence, this Agreement will be binding upon,
inure to the benefit of and be enforceable by the parties and their
respective successors and assigns. Except as otherwise expressly provided
herein, this Agreement (including the documents and instruments referred to
herein) is not intended to confer upon any person other than the parties
hereto any rights or remedies hereunder.
IN WITNESS WHEREOF, Parent, Buyer Bank and the Company
have caused this Agreement to be executed by their respective officers
thereunto duly authorized as of the date first above written.
NORTH FORK BANCORPORATION, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
NORTH FORK BANK
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
COMMERCIAL BANK OF NEW YORK
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
Title: President and Chief Executive
Officer
EXHIBIT A
SEE ATTACHED
PLAN OF MERGER
This PLAN OF BANK MERGER (this "Agreement") dated as of
February __, 2001, by and between [___ Bank], ("New Bank") a New York
chartered commercial bank and a wholly owned subsidiary of North Fork
Bancorporation, Inc., a Delaware corporation ("Parent") and Commercial Bank
of New York, a New York state chartered trust company (the "Company").
WHEREAS, the Boards of Directors of Parent, Buyer Bank
and the Company have determined that it is in the best interests of their
respective companies and their stockholders to consummate the business
combination transaction provided for herein and in the Agreement and Plan
of Reorganization, dated as of February 13, 2000 (the "Plan of
Reorganization" and collectively with this Agreement, the "Merger
Documents"), by and among Parent, Buyer Bank and the Company, in which the
New Bank will, subject to the terms and conditions set forth herein and
therein, merge (the "Merger") with and into the Company; and
WHEREAS, the Boards of Directors of New Bank and the
Company have determined that it is in the best interests of their
respective companies and their stockholders to consummate the business
combination transaction provided for herein and in the Plan of
Reorganization, in accordance with the provisions of the laws and
regulations of the State of New York, including New York Banking Law
("N.Y.B.L.") Sections 600 and 601 and 3 New York Compilation of Codes,
Rules, and Regulations Part 16, as amended.
NOW, THEREFORE, in consideration of the mutual premises
contained herein, the parties hereto agree as follows:
ARTICLE I
THE MERGER
1.1 Constituent Banks; Surviving Bank. The name of the
merging bank is "_________." The name of the receiving bank is "Commercial
Bank of New York." The name of the bank surviving the Merger is "Commercial
Bank of New York" (the "Surviving Bank").
1.2 Effective Time of the Merger. Subject to the
provisions of this Agreement and the Plan of Reorganization, the Merger
shall become effective at the date and time set forth in the certificate
which shall be issued by the Superintendent of Banks of the New York
Banking Department (the "Superintendent"). The term "Effective Time" shall
mean the date and time when the Merger becomes effective, as specified in
the certificate of the Superintendent.
1.3 Effects of the Merger. (a) At the Effective Time, (i)
the separate existence of New Bank shall cease, and New Bank's organization
certificate shall be deemed cancelled, (ii) the organization certificate of
the Company as in effect immediately prior to the Effective Time shall be
the organization certificate of the Surviving Bank until duly amended in
accordance with applicable law, (iii) the bylaws of the Company as in
effect immediately prior to the Effective Time shall be the bylaws of the
Surviving Bank until duly amended in accordance with applicable law, (iv)
the main office and branch offices of the Company, established and
authorized immediately prior to the Effective Time and listed on Exhibit
1.3(a) , shall become established and authorized branch offices of the
Surviving Bank and (v) the directors and officers of New Bank immediately
prior to the Effective Time shall be the directors and officers of the
Surviving Bank, each to hold office in accordance with the organization
certificate and bylaws of the Surviving Bank until their respective
successors are duly elected or appointed and qualified.
(b) At and after the Effective Time, the Merger shall
have all the effects set forth in N.Y.B.L. Section 602 and, in connection
therewith, all assets of New Bank as they exist at the Effective Time shall
pass to and vest in the Surviving Bank without any conveyance or other
transfer. The Surviving Bank shall be responsible for all liabilities and
obligations of every kind and description of each of the Company and New
Bank existing as of the Effective Time, whether matured or unmatured,
accrued, absolute, contingent or otherwise, and whether or not reflected or
reserved against on balance sheets, books of account or records of the
Company or New Bank.
1.4 Principal Office. The principal office of the
Surviving Bank shall be at [-----------------------].
ARTICLE II
EFFECT OF THE MERGER ON THE CAPITAL STOCK
OF THE CONSTITUENT BANKS
2.1 Effect on Capital Stock. At the Effective Time, by
virtue of the Merger and without any action on the part of Parent, Buyer
Bank, New Bank, the Company or the holders of any shares of the common
stock, par value $5.00 per share, of the Company (the "Company Common
Stock"):
(a) Conversion of Company Common Stock.
(i) At the Effective Time, each share of Company
Common Stock issued and outstanding immediately prior to the Effective Time
(other than shares of Company Common Stock (A) owned by the Company or any
Subsidiary of the Company, or Parent, Buyer Bank, New Bank or any other
direct or indirect Subsidiary of Parent (except for Trust Account Shares
and DPC Shares, as such terms are defined in Section 2.1(c)) or (B) held by
stockholders ("Dissenting Stockholders") duly exercising appraisal rights,
if any, pursuant to Section 604 of the N.Y.B.L. ("Dissenting Shares" and,
collectively with the shares of Company Common Stock owned by the Company
or any of its Subsidiaries or Parent, Buyer Bank, New Bank or any other
direct or indirect Subsidiary of Parent (except for Trust Account Shares
and DPC Shares), the "Excluded Shares") shall, by virtue of the Merger and
without any action on the part of the holder thereof, be converted into the
right to receive, without interest, $ 32.00 in cash (the "Merger
Consideration"). As used in this Agreement, the word "Subsidiary" when used
with respect to any party means any corporation, partnership or other
organization, whether incorporated or unincorporated, which is consolidated
with such party for financial reporting purposes.
(ii) As of the Effective Time, all shares of Company
Common Stock shall no longer be outstanding and shall automatically be
cancelled and retired and shall cease to exist, and each certificate
previously representing any such shares shall thereafter represent the
right to receive the Merger Consideration upon surrender of such
certificates in accordance with Section 2.2 or the right, if any, to
require the Surviving Bank to purchase such shares of Company Common Stock
for their "fair value" as determined in accordance with Section 604 of the
N.Y.B.L. The holders of such certificates previously evidencing such shares
of Company Common Stock outstanding immediately prior to the Effective Time
shall cease to have any rights with respect to such shares of Company
Common Stock as of the Effective Time except as otherwise provided herein
or by law.
(b) Common Stock of New Bank. Each share of common stock
of New Bank issued and outstanding immediately prior to the Effective Time
shall be converted into one share of common stock of the Surviving Bank.
(c) Cancellation of Treasury Stock and Parent Owned
Stock. Each share of Company Common Stock that is owned by the Company or
by any Subsidiary of the Company and each share of Company Common Stock
that is owned by Parent, Buyer Bank, New Bank or any other direct or
indirect Subsidiary of Parent immediately prior to the Effective Time
(other than shares of Company Common Stock (x) held directly or indirectly
in trust accounts, manager accounts and the like or otherwise held in a
fiduciary capacity for the benefit of third parties (and such shares,
whether held directly or indirectly by Parent or the Company, being
referred to herein as "Trust Account Shares" and (y) held by Parent or the
Company or any of their respective Subsidiaries in respect of a debt
previously converted ("DPC Shares")) shall automatically be cancelled and
retired and shall cease to exist without any conversion thereof and no
consideration shall be delivered with respect thereto.
ARTICLE III
COVENANTS
3.1 Covenants of New Bank and the Company. During the
period from the date of this Agreement and continuing until the Effective
Time, each of the parties hereto agrees to observe and perform all
agreements and covenants of Parent, Buyer Bank and the Company in the Plan
of Reorganization that pertain or are applicable to New Bank and the
Company, respectively. Each of the parties hereto agrees to use all best
efforts to take, or cause to be taken, all action and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions contemplated
by this Agreement, subject to and in accordance with the applicable
provisions of the Plan of Reorganization.
ARTICLE IV
CONDITIONS PRECEDENT
4.1 Conditions to Each Party's Obligation To Effect the
Merger. The respective obligations of each party to effect the Merger shall
be subject to the satisfaction at or prior to the Effective Time of the
following conditions:
(a) Stockholder Approval. The Merger Documents shall have
been approved and adopted by the requisite vote of the holders of the
outstanding shares of Company Common Stock under applicable law.
(b) Other Approvals. All regulatory approvals required to
consummate the transactions contemplated hereby (including the Merger)
shall have been obtained and shall remain in full force and effect and all
statutory waiting periods in respect thereof shall have expired (all such
approvals and the expiration of all such waiting periods being referred to
herein as the "Requisite Regulatory Approvals").
(c) No Injunctions or Restraints; Illegality. No order,
injunction or decree issued by any court or agency of competent
jurisdiction or other legal restraint or prohibition (an "Injunction")
preventing the consummation of the Merger shall be in effect. No statute,
rule, regulation, order, injunction or decree shall have been enacted,
entered, promulgated or enforced by any Governmental Entity which
prohibits, restricts or makes illegal consummation of the Merger.
4.2 Conditions of New Bank To Effect the Merger. The
obligations of New Bank to effect the Merger shall be subject to the
satisfaction or waiver by Parent and New Bank at or prior to the Effective
Time of all conditions precedent to the obligations of Parent and New Bank
pursuant to Section 8.2 of the Plan of Reorganization.
4.3 Conditions of Company To Effect the Merger. The
obligations of the Company to effect the Merger shall be subject to the
satisfaction or waiver by the Company at or prior to the Effective Time of
all conditions precedent to the Company's obligations pursuant to Section
8.3 of the Plan of Reorganization.
ARTICLE V
TERMINATION AND AMENDMENT
5.1 Termination. This Agreement shall be terminated
immediately and without any action on the part of the Company or New Bank
upon any termination of the Plan of Reorganization. This Agreement may be
terminated at any time prior to the Effective Time by mutual consent of New
Bank and the Company in a written instrument, if the Board of Directors of
each so determines by a vote of a majority of the members of its entire
Board.
5.2 Effect of Termination. In the event of termination of
this Agreement as provided in Section 5.1, this Agreement shall forthwith
become void and there shall be no liability or obligation under this
Agreement on the part of New Bank, the Company or their respective
officers, directors or affiliates, except as otherwise provided in the Plan
of Reorganization.
5.3 Amendment. This Agreement may be amended by the
parties hereto by action taken or authorized by their respective Boards of
Directors. This Agreement may not be amended except by an instrument in
writing signed on behalf of each of the parties hereto.
ARTICLE VI
GENERAL PROVISIONS
6.1 Definitions. All capitalized terms which are used but
not defined herein shall have the meanings set forth in the Plan of
Reorganization.
6.2 Nonsurvival of Agreements. None of the agreements in
this Agreement or in any instrument delivered pursuant to this Agreement
shall survive the Effective Time, except to the extent set forth in the
Plan of Reorganization.
6.3 Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given if delivered
personally, telecopied (with confirmation) or mailed by registered or
certified mail (return receipt requested) to New Bank or the Company,
respectively, at the addresses for notices to Parent or the Company,
respectively, as set forth in the Plan of Reorganization, with copies to
the persons referred to therein.
6.4 Counterparts. This Agreement may be adopted,
certified and executed in separate counterparts, each of which shall be
considered one and the same agreement and shall become effective when all
counterparts have been signed by each of the parties and delivered to the
other party, it being understood that both parties need not sign the same
counterpart.
6.5 Entire Agreement. Except as otherwise set forth in
this Agreement or the Plan of Reorganization (including the documents and
the instruments referred to herein or therein), this Agreement constitutes
the entire agreement, and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to
the subject matter hereof.
6.6 Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of New York without
regard to any applicable conflicts of law.
6.7 Assignment. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other party.
IN WITNESS WHEREOF, New Bank and the Company have caused
this Agreement to be signed by their duly authorized officers as of the
date first above written.
Attest: [NEW BANK]
By
------------------------- ---------------------------------------
Name: Name:
Secretary Title:
COMMERCIAL BANK OF NEW YORK
Attest:
By
------------------------- --------------------------------------
Name: Name:
Secretary Title:
EXHIBIT 1.3(a)
Main Office and Branch Offices of the Company
Main Xxxxxx
000 Xxxx Xxxxxx (xx 00xx Xxxxxx)
Xxx Xxxx, XX 00000
Branch Offices
000 Xxxx 00xx Xxxxxx (xx 0xx Xxxxxx)
Xxx Xxxx, XX 00000
0000 Xxxxxxxx (xx 00xx Xxxxxx)
Xxx Xxxx, XX 00000
0000 Xxxxx Xxxxxx (xx 00xx Xxxxxx)
Xxx Xxxx, XX 00000
0000 Xxxxxx Xxxxxx (xx 00xx Xxxxxx)
Xxx Xxxx, XX 00000
000 Xxxxx Xxxxxx (xx 00xx Xxxxxx)
Xxx Xxxx, XX 00000
000 Xxxxx Xxxxxx (xx 00xx Xxxxxx)
Xxx Xxxx, XX 00000
0000 Xxxxxxxx (xx 00xx Xxxxxx)
Xxx Xxxx, XX 00000
000 Xxxxx Xxxxxx (xx 00xx Xxxxxx)
Xxx Xxxx, XX 00000
0 Xxxx Xxxxxx (xx 00xx Xxxxxx)
Xxx Xxxx, XX 00000
000 Xxxxxxxx
Xxx Xxxx, XX 00000
00-00 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
000 Xxxxxx Xxxx XxxxXxxxx Xxxx, XX 00000
0000 Xxx Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxx, Xxxxx Xxxxxx
Cayman Islands, BWI
EXHIBIT B
Main Office and Branch Offices of the Company
Main Xxxxxx
000 Xxxx Xxxxxx (xx 00xx Xxxxxx)
Xxx Xxxx, XX 00000
Branch Offices
000 Xxxx 00xx Xxxxxx (xx 0xx Xxxxxx)
Xxx Xxxx, XX 00000
0000 Xxxxxxxx (xx 00xx Xxxxxx)
Xxx Xxxx, XX 00000
0000 Xxxxx Xxxxxx (xx 00xx Xxxxxx)
Xxx Xxxx, XX 00000
0000 Xxxxxx Xxxxxx (xx 00xx Xxxxxx)
Xxx Xxxx, XX 00000
000 Xxxxx Xxxxxx (xx 00xx Xxxxxx)
Xxx Xxxx, XX 00000
000 Xxxxx Xxxxxx (xx 00xx Xxxxxx)
Xxx Xxxx, XX 00000
0000 Xxxxxxxx (xx 00xx Xxxxxx)
Xxx Xxxx, XX 00000
000 Xxxxx Xxxxxx (xx 00xx Xxxxxx)
Xxx Xxxx, XX 00000
0 Xxxx Xxxxxx (xx 00xx Xxxxxx)
Xxx Xxxx, XX 00000
000 Xxxxxxxx
Xxx Xxxx, XX 00000
00-00 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
000 Xxxxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
0000 Xxx Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxx, Xxxxx Xxxxxx
Cayman Islands, BWI
EXHIBIT C
The Subscription Offering
Securities Offered............................... 1,000,000 shares of B-D Sub Common
Stock.
Subscription Price............................... $10.00 per share of B-D Sub Common
Stock (the "Subscription Price").
Basic Subscription Right......................... Each holder of Company Common Stock
(the "Holder") at the close of business on
a record date to be determined (the
"Record Date"), will have the right to
purchase one share of B-D Sub Common
Stock for every [ ] shares of
Company Common Stock owned on the
Record Date (the "Basic Subscription
Right"). Holders are entitled to
subscribe for all or any portion of the shares
of B-D Sub Common Stock underlying their
Basic Subscription Right.
Oversubscription Right........................... Each Holder who subscribes for the full
number of shares of B-D Sub Common
Stock underlying such Holder's Basic
Subscription Right may subscribe for any
shares of B-D Sub Common Stock which
are not subscribed for by other Holders
pursuant to their Basic Subscription Right
(the "Oversubscription Right").
Proration of Oversubscription Rights............. If there are shares available for sale
pursuant to the exercise of
Oversubscription Rights and the number
of such shares is not sufficient to satisfy
in full all subscriptions submitted
pursuant to such requests, the available
shares of B-D Sub Common Stock will be
allocated among the Holders who exercise
Oversubscription Rights pro rata based
upon the number of shares of Company Common
Stock owned by each such Holder on the Record
Date.
Method of Exercising
Subscription Rights.............................. Basic Subscription Rights and
Oversubscription Rights (collectively,
"Subscription Rights") may be exercised
by properly completing, signing and
delivering the Subscription Rights Order
Form (the "Order Form") accompanied by
payment in full of the Subscription Price.
Expiration Date.................................. To be determined, but no later than 20
business days after commencement of the
Subscription Offer.
Transferability.................................. Subscription Rights are being distributed
only to Holders of the Company Common
Stock as of the Record Date and are non-
transferable.
Fractional Shares................................ No fractional shares of B-D Sub Common
Stock will be issued. Any fractional share
that Holders would otherwise be entitled
to will be rounded down to the next whole
share.
Mandatory Subscription Agreement................. The Company's majority stockholder shall
subscribe for all of the shares of B-D Sub
Common Stock relating to his Basic
Subscription Right. (The majority
stockholder will be permitted, but not
required, to exercise his Oversubscription
Right.) Upon consummation of the
Subscription Offering, the majority
stockholder shall also purchase from the
Company all the shares of B-D Sub
Common Stock not so purchased by other
Holders pursuant to the Subscription
Offering.
Capitalized terms used herein and not otherwise defined herein shall have
the same meanings herein as ascribed thereto in the Agreement and Plan of
Reorganization.
THE FOLLOWING DISCLOSURE SCHEDULES HAVE BEEN OMITTED FROM THIS EXHIBIT IN
ACCORDANCE WITH ITEM 601(b)(2) OF REGULATION S-K.
Schedule 4.2(a) - Options
Schedule 4.2(b) - Subsidiaries
Schedule 4.3(b) - No Violation
Schedule 4.4 - Consents and Approvals
Schedule 4.5 - Reports
Schedule 4.8(c) - Absence of Certain Changes or Events
Schedule 4.9 - Litigation
Schedule 4.10(a) - Taxes
Schedule 4.10(b) - Taxes
Schedule 4.11(a) - Employee Plans
Schedule 4.11(b) - Employee Plans
Schedule 4.14 - Compliance with Applicable Law
Schedule 4.15(a) - Contracts
Schedule 4.15(b) - Contracts
Schedule 4.16 - Agreements with Regulatory Agencies
Schedule 4.17 - Investment Securities
Schedule 4.18 - Environmental Matters
Schedule 4.19 - Derivative Transaction
Schedule 4.22 - Loan Portfolio
Schedule 4.24 - Broker-Dealer Subsidiary
Schedule 7.3(a) - Access to Information
Schedule 7.15(a) - Non-Solicitation of Employees
Schedule 7.15(b) - Certain Employees
Schedule 7.16 - International Offices
CBNY Investment Services Corp. will furnish supplementally a copy of any
omitted schedule to the Securities and Exchange Commission upon request;
provided, however, that the Company may request confidential treatment pursuant
to Rule 406 of the Securities Act of 1933, as amended, for any schedule so
furnished.
