STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "AGREEMENT") is dated as of September
29, 2004, by and among Center Bancorp, Inc., a New Jersey corporation (the
"COMPANY"), and the purchasers identified on the signature pages hereto (each, a
"PURCHASER" and collectively, the "PURCHASERS").
WHEREAS, subject to the terms and conditions set forth in this Agreement
and pursuant to Section 4(2) of the Securities Act (as defined below) and Rule
506 promulgated thereunder, the Company desires to issue and sell to the
Purchasers, and the Purchasers, severally and not jointly, desire to purchase
from the Company certain shares of Common Stock of the Company, as more fully
described in this Agreement.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this
Agreement, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Company and the Purchasers agree
as follows:
ARTICLE I.
DEFINITIONS
1.1 Definitions. In addition to the terms defined elsewhere in this
Agreement, for all purposes of this Agreement, the following terms shall have
the meanings indicated in this Section 1.1:
"ACTION" means any action, suit, governmental, administrative agency
or regulatory authority inquiry, notice of violation, proceeding (including,
without limitation, any partial proceeding such as a deposition) or
governmental, administrative agency or regulatory investigation pending or
threatened in writing against or affecting the Company, any Subsidiary or any of
their respective properties, including, without limitation, before or by any
court, arbitrator, governmental or administrative agency, regulatory authority
(federal, state, county, local or foreign), stock market, stock exchange or
trading facility.
"AFFILIATE" means any Person that, directly or indirectly through
one or more intermediaries, controls or is controlled by or is under common
control with a Person, as such terms are used in and construed under Rule 144.
"BUSINESS DAY" means any day except Saturday, Sunday and any day
which shall be a federal legal holiday or a day on which banking institutions in
the State of New York are authorized or required by law or other governmental
action to close.
"CLOSING" means the closing of the purchase and sale of the Shares
pursuant to Article II.
"CLOSING DATE" means the date hereof or such other date as the
parties may agree.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" means the common stock of the Company, no par value
per share, and any securities into which such common stock may hereafter be
reclassified.
"CONFIDENTIAL MEMORANDUM" means the Confidential Memorandum, dated
September 23, 2004 related to the Company and the Shares being offered to be
purchased as contemplated by this Agreement, in the form provided to the
Purchasers prior to the date hereof.
"DISCLOSURE MATERIALS" has the meaning set forth in Section 3.1(h).
"EFFECTIVE DATE" means the date that the initial Registration
Statement required by Section 2(a) of the Registration Rights Agreement is first
declared effective by the Commission.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"INVESTMENT AMOUNT" means, with respect to each Purchaser, the
investment amount indicated below such Purchaser's name on the signature page of
this Agreement.
"LIEN" means any lien, charge, encumbrance, security interest, right
of first refusal or other restrictions of any kind.
"PERSON" means an individual or corporation, partnership, trust,
incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof)
or other entity of any kind.
"PLACEMENT AGENT" means Xxxxx Bros. & Company.
"REGISTRATION STATEMENT" means a registration statement meeting the
requirements set forth in the Registration Rights Agreement and covering the
resale by the Purchasers of the Registrable Securities (as defined in the
Registration Rights Agreement).
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of the date of this Agreement, among the Company and the
Purchasers, in the form of Exhibit A.
"RULE 144" means Rule 144 promulgated by the Commission pursuant to
the Securities Act, as such Rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
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"SHARES" means the shares of Common Stock issued to the Purchasers
at the Closing, at a purchase price of $11.25 per share (the "PURCHASE PRICE PER
SHARE").
"SUBSIDIARY" means (i) any corporation, limited liability company,
partnership. statutory trust or other organization, whether incorporated or
unincorporated, which is consolidated with the Company for financial reporting
purposes, including, without limitation, Company Bank (as defined below) and
(ii) the Trusts (as defined below).
"TRADING DAY" means (i) a day on which the Common Stock is traded on
a Trading Market, or (ii) if the Common Stock is not listed on a Trading Market,
a day on which the Common Stock is traded in the over-the-counter market, as
reported by the OTC Bulletin Board, or (iii) if the Common Stock is not quoted
on the OTC Bulletin Board, a day on which the Common Stock is quoted in the
over-the-counter market as reported by the National Quotation Bureau
Incorporated (or any similar organization or agency succeeding to its functions
of reporting prices); provided, that in the event that the Common Stock is not
listed or quoted as set forth in (i), (ii) and (iii) hereof, then Trading Day
shall mean a Business Day.
"TRADING MARKET" means whichever of the New York Stock Exchange, the
American Stock Exchange, the NASDAQ National Market or the NASDAQ SmallCap
Market, on which the Common Stock is listed or quoted for trading on the date in
question.
"TRANSACTION DOCUMENTS" means this Agreement and the Registration
Rights Agreement, the schedules hereto and the certificate to be delivered
pursuant to Section 2.2(a)(iii).
ARTICLE II.
PURCHASE AND SALE
2.1 Closing. Subject to the terms and conditions set forth in this
Agreement, at the Closing the Company shall issue and sell to each Purchaser,
and each Purchaser shall, severally and not jointly, purchase from the Company,
the Shares representing such Purchaser's Investment Amount, up to an aggregate
of 888,888 Shares for all Purchasers. The Closing shall take place at the
offices of Xxxxxx, Xxxxx & Bockius LLP, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, XX
00000 on the Closing Date or at such other location or time as the parties may
agree.
2.2 Closing Deliveries. (a) At the Closing, the Company shall deliver or
cause to be delivered to each Purchaser the following:
(i) a certificate evidencing a number of Shares equal to such
Purchaser's Investment Amount divided by the Purchase Price Per Share,
registered in the name of such Purchaser;
(ii) the legal opinion of Xxxxxxxxxx Xxxxxxx PC, counsel to
the Company, in the form of Exhibit B, addressed to the Purchasers and the
Placement Agent;
(iii) a certificate from a duly authorized officer certifying
on behalf of the Company that each of the conditions set forth in Section 5.1
has been satisfied; and
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(iv) the Registration Rights Agreement duly executed by the
Company.
(b) At the Closing (or with respect to such Purchaser's Investment
Amount, at such Purchaser's option, prior to the Closing), each Purchaser shall
deliver or cause to be delivered to the Company the following:
(i) such Purchaser's Investment Amount in United States
dollars and in immediately available funds, by wire transfer to the escrow
account for such purpose identified on Schedule 2.2(b)(i); and
(ii) the Registration Rights Agreement duly executed by such
Purchaser.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Company. The Company hereby
makes the following representations and warranties to each Purchaser and to the
Placement Agent:
(a) Subsidiaries. The Company has no direct or indirect Subsidiaries
other than the Company Bank, the Trusts (each as defined below) and the
corporations identified on Schedule 3.1(a). The Company owns, directly or
indirectly, all of the capital stock of the Company Bank and, except as set
forth on Schedule 3.1(a), all of the trust securities of the Trusts, free and
clear of any and all Liens, and all the issued and outstanding shares of capital
stock of the Company Bank and all of the trust securities of the Trusts and all
of the securities of each other Subsidiary are validly issued and are fully
paid, non-assessable and free of any preemptive and similar rights granted by
the Company, the Company Bank, the Trusts or such other Subsidiaries. The
rights, preferences, privileges and restrictions of the trust securities of the
Trust I (as defined below) are as set forth in Exhibit 10.14 to the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 2001. The
rights, preferences, privileges and restrictions of the trust securities of the
Trust II (as defined below) are as set forth in Exhibit 10.17 to the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 2003. Except
as set forth on Schedule 3.1(a), each Subsidiary is "controlled by" the Company,
as the term "controlled by" is used in and construed under Rule 144, and there
are no agreements or understandings in effect or, to the Company or such
Subsidiary's knowledge, contemplated, that would cause any Subsidiary not to be
"controlled by" the Company.
(b) Organization and Qualification. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of New Jersey. Union Center National Bank, a wholly-owned subsidiary of
the Company ("COMPANY BANK"), is a national bank validly existing and continuing
to hold a valid certificate from the Office of the Comptroller of the Company to
transact the business of banking under the laws of the United States. Center
Bancorp Statutory Trust I (the "TRUST I"), a financing subsidiary of the
Company, is a statutory trust duly organized, validly existing and in good
standing (to the extent such concept or a similar concept, such as "on record
with," is recognized with respect to such trust) under the Connecticut Statutory
Trust Act. Center Bancorp Statutory Trust II (the "TRUST II" and together with
the Trust I, the "TRUSTS")), a financing subsidiary of the Company, is a
statutory trust duly organized, validly existing and in good standing (to the
extent such concept or a similar concept is recognized with respect to such
trust) under the Delaware Statutory Trust Act. Each other Subsidiary is duly
incorporated (or, in the case of a limited liability company, duly organized),
validly existing and in good standing under the laws of the jurisdiction in
which it was organized. Each of the Company and each Subsidiary has the
requisite power and authority to own and use its properties and assets and to
carry on its business as currently conducted. Neither the Company nor any
Subsidiary is in violation of any of the provisions of its respective
certificate or articles of incorporation, bylaws or other organizational, trust
or charter documents. Each of the Company and each Subsidiary is duly qualified
to conduct business and is in good standing as a foreign corporation, trust or
other entity in each jurisdiction in which the nature of the business conducted
or property owned by it makes such qualification necessary, except where the
failure to be so qualified or in good standing, as the case may be, could not,
individually or in the aggregate, have or reasonably be expected to result in
(i) an adverse effect on the legality, validity or enforceability of any
Transaction Document, (ii) a material and adverse effect on the results of
operations, assets, business or condition (financial or otherwise) of the
Company and the Subsidiaries, taken as a whole, or (iii) an adverse impairment
to the Company's ability to perform on a timely basis its obligations under any
Transaction Document (any of (i), (ii) or (iii), a "MATERIAL ADVERSE EFFECT").
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(c) Authorization; Enforcement. The Company has the requisite
corporate power and authority to enter into and to consummate the transactions
contemplated by each of the Transaction Documents and otherwise to carry out its
obligations thereunder. The execution and delivery of each of the Transaction
Documents by the Company and the consummation by it of the transactions
contemplated thereby have been duly authorized by all necessary corporate action
on the part of the Company and no further corporate action is required by the
Company in connection therewith. Each Transaction Document has been (or upon
delivery will have been) duly executed by the Company and, when delivered in
accordance with the terms hereof, will constitute the valid and binding
obligation of the Company enforceable against the Company in accordance with its
terms, except as rights to indemnity and contribution may be limited by state or
federal securities laws or the public policy underlying such laws, and except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally
and except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
(d) No Conflicts. The execution, delivery and performance of the
Transaction Documents by the Company and the consummation by the Company of the
transactions contemplated thereby do not and will not (i) conflict with or
violate any provision of the Company's or any Subsidiary's certificate or
articles of incorporation, bylaws or other organizational, trust or charter
documents, or (ii) conflict with, or constitute a default (or an event that with
notice or lapse of time or both would become a default) under, or give to others
any rights of termination, amendment, acceleration or cancellation (with or
without notice, lapse of time or both) of, any agreement, credit facility, debt
or other instrument (evidencing a Company or Subsidiary debt or otherwise) or
other understanding to which the Company or any Subsidiary is a party or by
which any property or asset of the Company or any Subsidiary is bound or
affected, or (iii) result in a violation of any law, rule, regulation, order,
judgment, injunction, decree or other restriction of any court or governmental
authority to which the Company or a Subsidiary is subject (including, without
limitation, federal and state securities laws and regulations), or by which any
property or asset of the Company or a Subsidiary is bound or affected; except in
the case of each of clauses (ii) and (iii), such as could not, individually or
in the aggregate, have or reasonably be expected to result in a Material Adverse
Effect.
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(e) Filings, Consents and Approvals. The Company is not required to
obtain any consent, waiver, authorization or order of, give any notice to, or
make any filing or registration with, any court or other federal, state, local
or other governmental authority or other Person in connection with the
execution, delivery and performance by the Company of the Transaction Documents,
other than: (i) the filing with the Commission of a Form D and one or more
Registration Statements in accordance with the requirements of the Registration
Rights Agreement, (ii) the filings required by state securities laws, (iii) the
filings required in accordance with Sections 4.4 and 4.7, and (iv) those that
have been made or obtained prior to the date of this Agreement.
(f) Issuance of the Shares. The Shares have been duly authorized
and, when issued and paid for in accordance with the Transaction Documents, will
be validly issued, fully paid and nonassessable, free and clear of all Liens.
(g) Capitalization. The number of shares and type of all authorized,
issued and outstanding capital stock of the Company as of the date hereof is as
described in the Company's Quarterly Report on Form 10-Q for the Quarter ended
June 30, 2004, as supplemented by Schedule 3.1(g)(i). No securities of the
Company are entitled to preemptive or similar rights. Neither the Company nor
any Subsidiary has granted to any Person any right of first refusal, preemptive
right, right of participation, or any similar right to participate in the
transactions contemplated by the Transaction Documents. Except as disclosed in
Schedule 3.1(g)(ii), there are no outstanding options, warrants, scrip rights to
subscribe to, calls or commitments of any character whatsoever relating to, or
securities, rights or obligations convertible into or exchangeable for, or
giving any Person any right to subscribe for or acquire, any shares of Common
Stock, or contracts, commitments, understandings or arrangements by which the
Company or any Subsidiary is or may become bound to issue additional shares of
Common Stock, or securities or rights convertible or exchangeable into shares of
Common Stock. The issue and sale of the Shares will not, immediately or with the
passage of time, obligate the Company to issue shares of Common Stock or other
securities to any Person (other than the Purchasers) and will not result in a
right of any holder of Company securities to adjust the exercise, conversion,
exchange or reset price under such securities.
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(h) SEC Reports; Financial Statements. The Company has filed all
reports, proxy statements, documents and other information required to be filed
by it under the Securities Act and the Exchange Act, including, without
limitation, pursuant to Section 13(a) or 15(d) thereof, for the twelve months
preceding the date hereof (the foregoing materials including, without
limitation, all exhibits and schedules thereto, and all documents and other
information incorporated by reference therein, being collectively referred to
herein as the "SEC REPORTS" and, together with the Schedules to this Agreement
and the Confidential Memorandum, the "DISCLOSURE MATERIALS") on a timely basis
or has timely filed a valid extension of such time of filing on Form 12b-25 and
has filed any such SEC Reports prior to the expiration of any such extension. As
of their respective dates, the SEC Reports complied in all material respects
with the applicable requirements of the Securities Act and the Exchange Act and
the rules and regulations of the Commission promulgated thereunder, and none of
the SEC Reports, when filed, contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading. The financial statements of the Company
included in the SEC Reports comply in all material respects with applicable
accounting requirements and the rules and regulations of the Commission with
respect thereto as in effect at the time of filing. Such financial statements
have been prepared in accordance with generally accepted accounting principles
applied on a consistent basis during the periods involved ("GAAP"), except as
may be otherwise specified in such financial statements or the notes thereto,
and fairly present in all material respects the financial position of the
Company and its consolidated Subsidiaries as of and for the dates thereof and
the results of operations and cash flows for the periods then ended, subject, in
the case of unaudited statements, to normal, immaterial, year-end audit
adjustments or as otherwise disclosed in the SEC Reports.
(i) Material Changes. Since the date of the latest audited financial
statements included within the SEC Reports, except as specifically disclosed in
the Disclosure Materials, (i) there has been no event, occurrence or development
that has had or is reasonably likely to result in a Material Adverse Effect,
(ii) the Company has not incurred any material liabilities (contingent or
otherwise) other than (A) liabilities occurring in the ordinary course of
business consistent with past practice that could not reasonably be expected to
have a Material Adverse Effect, (B) liabilities associated with the transactions
contemplated hereby and (C) liabilities not required to be reflected in the
Company's financial statements pursuant to GAAP or required to be disclosed in
filings made with the Commission, (iii) the Company has not altered its method
of accounting or changed its auditors, (iv) except for normal quarterly cash
dividends, the Company has not declared or made any dividend or distribution of
cash or other property to its stockholders or purchased, redeemed or made any
agreements to purchase or redeem any shares of its capital stock, and (v) the
Company has not issued any equity securities to any officer, director or
Affiliate, except pursuant to existing Company stock option, dividend
reinvestment or stock purchase plans. The Company does not have pending before
the Commission any request for confidential treatment of information.
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(j) Litigation. There is no Action which (i) adversely affects or
challenges the legality, validity or enforceability of any of the Transaction
Documents or the Shares or (ii) except as disclosed in the Disclosure Materials,
could, if there were an unfavorable decision, individually or in the aggregate,
have or reasonably be expected to result in a Material Adverse Effect. Neither
the Company nor any Subsidiary, nor any director or officer thereof, is or has
been the subject of any Action involving a claim of violation of or liability
under federal or state securities laws or a claim of breach of fiduciary duty.
There has not been, and to the knowledge of the Company, there is not pending or
contemplated, any investigation by the Commission involving the Company or any
current or former director or officer of the Company. The Commission has not
issued any stop order or other order suspending the effectiveness of any
registration statement filed by the Company or any Subsidiary under the Exchange
Act or the Securities Act.
(k) Employment Matters. The Company and the Subsidiaries are in
compliance with all applicable federal, state, local and foreign laws and
regulations respecting employment and employment practices, terms and conditions
of employment and wages and hours except where failure to be in compliance would
not have a Material Adverse Effect. Neither the Company nor any Subsidiary is
bound by or subject to (and none of the Company's or any of its Subsidiaries'
assets or properties are bound by or subject to) any written or oral, express or
implied, contract, commitment or arrangement with any labor union, and, since
January 1, 1998, no labor union has requested or, to the Company's knowledge,
has sought to represent any of the employees, representatives or agents of the
Company or the Subsidiaries. There is no strike or other material labor dispute
involving the Company or the Subsidiaries pending, or to the Company's
knowledge, threatened, nor is the Company aware of any labor organization
activity involving its or its Subsidiaries' employees. The Company is not aware
that any current officer intends to terminate his or her employment with the
Company, nor does the Company have a present intention to terminate the
employment of any current officer.
(l) Compliance. Neither the Company nor any Subsidiary (i) is in
default under or in violation of (and no event has occurred that, with notice or
lapse of time or both, would result in a default by the Company or any
Subsidiary under), nor has the Company or any Subsidiary received notice of a
claim that it is in default under or that it is in violation of, any indenture,
loan or credit agreement or any other agreement or instrument to which it is a
party or by which it or any of its properties is bound (whether or not such
default or violation has been waived), (ii) is in violation of any order of any
court, arbitrator or governmental body, or (iii) is or has been in violation of
any statute, rule or regulation of any governmental authority, including,
without limitation, all foreign, federal, state and local laws relating to
taxes, environmental protection, occupational health and safety, product quality
and safety and employment, labor matters, financial, banking and depository
institutions, internal controls, insurance, community reinvestment, and gaming
matters, except in each case as could not, individually or in the aggregate,
have or reasonably be expected to result in a Material Adverse Effect. The
Company is in compliance with the applicable requirements of the Xxxxxxxx-Xxxxx
Act of 2002 and the rules and regulations thereunder promulgated by the
Commission, except where such noncompliance could not have or reasonably be
expected to result in a Material Adverse Effect.
(m) Regulatory Permits. The Company and the Subsidiaries possess all
certificates, authorizations and permits issued by the appropriate federal,
state, local or foreign regulatory authorities necessary to conduct their
respective businesses as described in the SEC Reports, except where the failure
to possess such permits would not, individually or in the aggregate, have or
reasonably be expected to result in a Material Adverse Effect ("MATERIAL
PERMITS"), and neither the Company nor any Subsidiary has received any notice of
Actions relating to the revocation or modification of any Material Permit.
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(n) Title to Assets. The Company and the Subsidiaries have good and
marketable title in all personal property owned by them that is material to
their respective businesses, in each case free and clear of all Liens, except
for Liens as do not materially affect the value of such property and do not
materially interfere with the use made and proposed to be made of such property
by the Company and the Subsidiaries. Any real property and facilities held under
lease by the Company and the Subsidiaries are held by them under valid,
subsisting and, to the Company's knowledge, enforceable leases of which the
Company and the Subsidiaries are in compliance, except as could not,
individually or in the aggregate, have or reasonably be expected to result in a
Material Adverse Effect.
(o) Patents and Trademarks. The Company and the Subsidiaries have,
or have rights to use, all patents, patent applications, trademarks, trademark
applications, service marks, trade names, copyrights, licenses and other similar
rights that are necessary or material for use in connection with their
respective businesses as described in the SEC Reports (collectively, the
"INTELLECTUAL PROPERTY RIGHTS"). Except as set forth in the Disclosure
Materials, since January 1, 1998, neither the Company nor any Subsidiary has
received a written notice that the Intellectual Property Rights used by the
Company or any Subsidiary violates or infringes upon the rights of any Person.
Except as set forth in the Disclosure Materials, to the knowledge of the
Company, all such Intellectual Property Rights are enforceable and there is no
existing infringement by another Person of any of the Intellectual Property
Rights other than infringements which could not, individually or in the
aggregate, have or reasonably be expected to result in a Material Adverse
Effect.
(p) Insurance. The Company and the Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the businesses in which the
Company and the Subsidiaries are engaged. The Company does not believe that it
will be unable to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business without a material increase in cost.
(q) Transactions With Affiliates and Employees. Except as set forth
in the Disclosure Materials or in Schedule 3.1(q), none of the officers or
directors of the Company and, to the knowledge of the Company, none of the
employees of the Company, is presently a party to any transaction with the
Company or any Subsidiary (other than for services as employees, officers and
directors, other than transactions that meet the terms and conditions set forth
in Section 13(k)(2) or (3) of the Exchange Act, and other than transactions that
would not be required to be disclosed under Item 404 of Regulation S-K were such
persons directors or executive officers of the Company), including, without
limitation, any contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of the Company, any entity in
which any officer, director, or any such employee has a substantial interest or
is an officer, director, trustee or partner.
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(r) Internal Accounting Controls; Disclosure Controls and
Procedures; Off-Balance Sheet Arrangements. The Company and the Subsidiaries
maintain a system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with
management's general or specific authorizations, (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset accountability,
(iii) access to assets is permitted only in accordance with management's general
or specific authorization, and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences. The Company has established disclosure
controls and procedures (as defined in Exchange Act Rules 13a-15(e) and
15d-15(e)) for the Company and designed such disclosure controls and procedures
to ensure that material information relating to the Company, including, without
limitation, the Subsidiaries, is made known to the certifying officers by others
within those entities, particularly during the period in which the Company's
Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be,
is being prepared. The Company's certifying officers have evaluated the
effectiveness of the Company's controls and procedures as of the end of the
period covered by the most recently filed Company periodic report under the
Exchange Act (such date, the "EVALUATION DATE"). The Company presented in its
most recently filed Quarterly Report on Form 10-Q the conclusions of the
certifying officers about the effectiveness of the disclosure controls and
procedures based on their evaluations as of the Evaluation Date. Since the
Evaluation Date, there have been no changes in the Company's internal control
over financial reporting (as such term is defined in Exchange Act Rules
13a-15(f) and 15d-15(f)) that has materially affected, or is reasonably likely
to materially affect the Company's internal control over financial reporting.
Except as disclosed in the SEC Reports, there is no material transaction,
arrangement or other relationship between the Company and an unconsolidated or
other off-balance sheet entity.
(s) Solvency. Based on the financial condition of the Company as of
the Closing (and assuming that the Closing shall have occurred), (i) the
Company's fair saleable value of its assets exceeds the amount that will be
required to be paid on or in respect of the Company's existing debts and other
liabilities (including, without limitation, known contingent liabilities) as
they mature; (ii) the Company's assets do not constitute unreasonably small
capital to carry on its business as now conducted and as proposed to be
conducted including, without limitation, its capital needs taking into account
the particular capital requirements of the business conducted by the Company,
and projected capital requirements and capital availability thereof; and (iii)
the current cash flow of the Company, together with the proceeds the Company
would receive, were it to liquidate all of its assets, after taking into account
all anticipated uses of the cash, would be sufficient to pay all amounts on or
in respect of its debt when such amounts are required to be paid. The Company
does not intend to incur debts beyond its ability to pay such debts as they
mature (taking into account the timing and amounts of cash to be payable on or
in respect of its debt).
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(t) Certain Fees. Except for dealings with the Placement Agent, no
brokerage or finder's fees or commissions are or will be payable by the Company
to any broker, financial advisor or consultant, finder, placement agent,
investment banker, bank or other Person with respect to the transactions
contemplated by this Agreement. The Purchasers shall have no obligation with
respect to any fees or with respect to any claims (other than such fees or
commissions owed by a Purchaser pursuant to written agreements executed by such
Purchaser, which fees or commissions shall be the sole responsibility of such
Purchaser) made by or on behalf of other Persons for fees of a type contemplated
in this Section that may be due in connection with the transactions contemplated
by this Agreement.
(u) Certain Registration Matters. Assuming the accuracy of the
Purchasers' representations and warranties set forth in Section 3.2(b) to (e),
no registration under the Securities Act is required for the offer and sale of
the Shares by the Company to the Purchasers under the Transaction Documents. The
Company is eligible to register the resale of its Common Stock for resale by the
Purchasers under Form S-3 promulgated under the Securities Act. No Person has
any rights (including, without limitation, "piggy-back" registration rights) to
have any securities of the Company registered with the Commission or any other
governmental authority.
(v) Listing and Maintenance Requirements. Except as specified in the
Disclosure Materials or in Schedule 3.1(v), the Company has not, in the two
years preceding the date hereof, received notice from any Trading Market on
which the Common Stock is or has been listed or quoted for trading to the effect
that the Company is not in compliance with the listing or maintenance
requirements thereof. Except as specified in the Disclosure Materials, the
Company is, and has no reason to believe that it will not in the foreseeable
future continue to be, in compliance with the listing and maintenance
requirements for continued listing of the Common Stock on the NASDAQ National
Market. The issuance and sale of the Shares under the Transaction Documents does
not contravene the rules and regulations of the Trading Market on which the
Common Stock is currently listed or quoted, and no approval of the stockholders
of the Company thereunder is required for the Company to issue and deliver to
the Purchasers the Shares pursuant to this Agreement.
(w) Investment Company. The Company is not, and is not an Affiliate
of, an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
(x) Application of Takeover Protections. The Company has taken all
necessary action, if any, in order to render inapplicable any control share
acquisition, business combination, poison pill (including, without limitation,
any distribution under a rights agreement) or other similar anti-takeover
provision under the Company's Certificate of Incorporation (or similar charter
documents) or the laws of its state of incorporation that is or could reasonably
be expected to become applicable to the Purchasers as a result of the Purchasers
and the Company fulfilling their obligations or exercising their rights under
the Transaction Documents, including, without limitation, the Company's issuance
of the Shares and the Purchasers' ownership of the Shares.
(y) No Additional Agreements. The Company does not have any
agreement or understanding with any Purchaser with respect to the transactions
contemplated by the Transaction Documents, other than as specified in this
Agreement.
-11-
(z) Taxes. The Company and the Subsidiaries have timely made or
filed all federal, state and foreign income and all other tax returns, reports
and declarations required by any jurisdiction to which the Company or such
Subsidiaries are subject (unless and only to the extent that the Company or such
Subsidiaries have set aside on their books provisions reasonably adequate for
the payment of all unpaid and unreported taxes) and have timely paid all taxes
and other governmental assessments and charges that are material in amount,
shown or determined to be due on such returns, reports and declarations, and
have set aside on their books provisions reasonably adequate in accordance with
GAAP for the payment of all taxes for periods subsequent to the periods to which
such returns, reports or declarations apply. To the Company's knowledge, there
are no unpaid taxes of the Company and the Subsidiaries in any material amount
claimed to be due by the taxing authority of any jurisdiction. Neither the
Company nor the Subsidiaries have executed a waiver with respect to the statute
of limitations relating to the assessment or collection of any foreign, federal,
state or local tax. None of the Company's or any of its Subsidiaries' tax
returns is presently being audited by any taxing authority. The Trusts are, and
will, under current laws, rules and regulations, be classified for federal
income tax purposes as grantor trusts and not as associations taxable as
corporations.
(aa) Holding Company and Bank Regulatory Matters.
(i) The Company is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended (the "BHC ACT") and the
regulations of the Board of Governors of the Federal Reserve System (the
"FEDERAL RESERVE BOARD"). The deposit accounts of the Company's Subsidiary
depository institutions are insured by the Federal Deposit Insurance Corporation
(the "FDIC") through the Savings Association Insurance Fund or the Bank
Insurance Fund to the fullest extent permitted by law and the rules and
regulations of the FDIC, and all premiums and assessments required to be paid in
connection therewith have been paid when due, and no Actions for the revocation
or termination of such insurance are pending or threatened.
(ii) 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
January 1, 1998 with any Regulatory Agency (as defined below), 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.
(iii) Neither the Company nor any of its Subsidiaries is
subject or is party to, or has received any notice or advice that any of them
may become subject or party to, any investigation with respect to, any
cease-and-desist order, agreement, consent agreement, memorandum of
understanding or other regulatory enforcement action, proceeding or order with
or by, or is a party to any commitment letter or similar undertaking to, or is
subject to any order or directive by, or has been a recipient of any supervisory
letter from, or has adopted any board resolutions at the request of, any
Regulatory Agency that currently restricts in any material respect the conduct
of their business or that in any material manner currently relates to their
capital adequacy, their credit policies, their management or their business
(each, a "REGULATORY AGREEMENT"), nor has the Company or any of its Subsidiaries
been advised by any Regulatory Agency that such Regulatory Agency is considering
issuing or requesting any such Regulatory Agreement.
-12-
(iv) As used herein, the term "REGULATORY AGENCY" means any
federal or state agency or self-regulatory organization charged with the
supervision or regulation of depository institutions, bank, financial or savings
and loan holding companies, or engaged in the insurance of depository
institution deposits, or any court, administrative agency or commission or other
governmental agency, authority or instrumentality having supervisory or
regulatory authority with respect to the Company or any of its Subsidiaries,
including, without limitation, the Federal Reserve Board, the FDIC and the
Office of the Comptroller of the Currency. The term "governmental authority"
when used throughout this Agreement shall include, without limitation, any
Regulatory Agency.
(bb) Disclosure. The Company confirms that neither it nor any
officers, directors or Affiliates, has provided any of the Purchasers or their
agents or counsel with any information that constitutes or might constitute
material, nonpublic information (other than (i) the existence and terms of the
issuance of Shares, as contemplated by this Agreement, and (ii) any such
information that will be included in the Current Report on Form 8-K to be filed
within four business days following execution of this Agreement). The Company
understands and confirms that the Purchasers will rely on the foregoing
representations and covenants in effecting transactions in securities of the
Company. All disclosure provided to the Purchasers regarding the Company, its
business and the transactions contemplated hereby, furnished by or on behalf of
the Company (including, without limitation, the Company's representations and
warranties set forth in this Agreement) are true and correct in all material
respects and do not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements made therein,
in light of the circumstances under which they were made, not misleading.
3.2 Representations and Warranties of the Purchasers. Each Purchaser
hereby, for itself and for no other Purchaser, represents and warrants to the
Company and the Placement Agent as follows:
(a) Organization; Authority. Such Purchaser is an entity duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with the requisite corporate or partnership
power and authority to enter into and to consummate the transactions
contemplated by the applicable Transaction Documents and otherwise to carry out
its obligations thereunder. The execution, delivery and performance by such
Purchaser of the transactions contemplated by this Agreement has been duly
authorized by all necessary corporate or, if such Purchaser is not a
corporation, such partnership, limited liability company or other applicable
like action, on the part of such Purchaser. Each of this Agreement and the
Registration Rights Agreement has been duly executed by such Purchaser, and when
delivered by such Purchaser in accordance with terms hereof, will constitute the
valid and legally binding obligation of such Purchaser, enforceable against it
in accordance with its terms, except as rights to indemnity and contribution may
be limited by state or federal securities laws or the public policy underlying
such laws, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
-13-
(b) Investment Intent. Such Purchaser is acquiring the Shares as
principal for its own account for investment purposes only and not with a view
to or for distributing or reselling such Shares or any part thereof, without
prejudice, however, to such Purchaser's right, subject to the provisions of this
Agreement and the Registration Rights Agreement, at all times to sell or
otherwise dispose of all or any part of such Shares pursuant to an effective
registration statement under the Securities Act or under an exemption from such
registration and in compliance with applicable federal and state securities
laws. Subject to the immediately preceding sentence, nothing contained herein
shall be deemed a representation or warranty by such Purchaser to hold the
Shares for any period of time. Such Purchaser is acquiring the Shares hereunder
in the ordinary course of its business. Such Purchaser does not have any
agreement or understanding, directly or indirectly, with any Person to
distribute any of the Shares.
(c) Purchaser Status. At the time such Purchaser was offered the
Securities, it was, and at the date hereof it is, an "accredited investor" as
defined in Rule 501(a) under the Securities Act. Such Purchaser is not a
registered broker-dealer under Section 15 of the Exchange Act.
(d) Experience of such Purchaser. Such Purchaser, either alone or
together with its representatives, has such knowledge, sophistication and
experience in business and financial matters so as to be capable of evaluating
the merits and risks of the prospective investment in the Shares, and has so
evaluated the merits and risks of such investment. Such Purchaser is able to
bear the economic risk of an investment in the Shares and, at the present time,
is able to afford a complete loss of such investment.
(e) Access to Information. Such Purchaser acknowledges that it has
reviewed the Disclosure Materials and has been afforded (i) the opportunity to
ask such questions as it has deemed necessary of, and to receive answers from,
representatives of the Company concerning the terms and conditions of the
offering of the Shares and the merits and risks of investing in the Shares; (ii)
access to information about the Company and the Subsidiaries and their
respective financial condition, results of operations, business, properties,
management and prospects sufficient to enable it to evaluate its investment; and
(iii) the opportunity to obtain such additional information that the Company
possesses or can acquire without unreasonable effort or expense that is
necessary to make an informed investment decision with respect to the
investment. Neither such inquiries nor any other investigation conducted by or
on behalf of such Purchaser or its representatives or counsel shall modify,
amend or affect such Purchaser's right to rely on the truth, accuracy and
completeness of the Disclosure Materials and the Company's representations and
warranties contained in the Transaction Documents.
-14-
(f) Reliance; Legend. Such Purchaser understands and acknowledges
that: (i) the Shares are being offered and sold to it without registration under
the Securities Act in a private placement that is exempt from the registration
provisions of the Securities Act and (ii) the availability of such exemption
depends in part on, and the Company will rely upon the accuracy and truthfulness
of, the foregoing representations and such Purchaser hereby consents to such
reliance. Such Purchaser acknowledges that the certificate representing the
Shares which such Purchaser shall acquire hereunder shall bear a legend that
will read substantially as set forth in section 4.1(b).
(g) Residency. Such Purchaser is a resident of the jurisdiction set
forth immediately below such Purchaser's name on the signature pages hereto.
(h) Certain Trading Activities. Such Purchaser has not directly or
indirectly, nor has any Person acting on behalf of or pursuant to any
understanding with such Purchaser, engaged in (i) any Short Sales (defined
below) involving the Company's securities during the 30 Trading Days immediately
preceding the date hereof or (ii) any transactions in any securities of the
Company following the date on which such Purchaser was aware of this Transaction
(other than this Transaction and other than transfers by a Purchaser to its
affiliated funds which affiliated funds have not engaged in any such
transactions). For purposes of this Section, "SHORT SALES" include, without
limitation, all types of direct and indirect stock pledges, forward sale
contracts, options, puts, calls, short sales, swaps and similar arrangements and
sales and other transactions through non-US broker dealers or foreign regulated
brokers having the effect of hedging the securities or investment made under
this Agreement.
(i) Acknowledgements Regarding Placement Agent. Such Purchaser
acknowledges that the Placement Agent (i) is acting as the Company's exclusive
placement agent for the sale of the securities being offered hereby, (ii) will
be compensated as set forth in the Confidential Memorandum solely by the Company
for its services in such capacity, (iii) is not guaranteeing or assuming
responsibility for the operation, management or possible liability of the
Company, including, without limitation, compliance by the Company with the
Transaction Documents, and (iv) will not supervise or participate in the
operation or management of the Company.
(j) Filings, Consents and Approvals. Such Purchaser is not required
to obtain any consent, waiver, authorization or order of, give any notice to, or
make any filing or registration with, any court or other federal, state, local
or other governmental authority or other Person in connection with the
execution, delivery and performance by such Purchaser of the Transaction
Documents. Without limiting the foregoing, such Purchaser is not required to
register as a bank holding company under the BHC Act in connection with the
execution, delivery and performance by such Purchaser of the Transaction
Documents.
The Company acknowledges and agrees that each Purchaser does not make or has not
made any representations or warranties with respect to the transactions
contemplated hereby other than those specifically set forth in this Section 3.2.
-15-
ARTICLE IV.
OTHER AGREEMENTS OF THE PARTIES
4.1 (a) The Shares may only be disposed of pursuant to an effective
registration statement under the Securities Act, to the Company or pursuant to
an available exemption from or in a transaction not subject to the registration
requirements of the Securities Act, and in compliance with any applicable state
securities laws. In connection with any transfer of the Shares other than
pursuant to an effective registration statement, to the Company, to an Affiliate
of a Purchaser or in connection with a pledge as contemplated in Section 4.1(b),
the Company may require the transferor thereof to provide to the Company an
opinion of counsel selected by the transferor and acceptable to the Company
(such acceptance not to be unreasonably withheld), the form and substance of
which opinion shall be reasonably satisfactory to the Company, to the effect
that such transfer does not require registration of such transferred Shares
under the Securities Act.
(b) Certificates evidencing the Shares will contain the following
legend, so long as is required by this Section 4.1(b) or Section 4.1(c):
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND
EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN
RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY,
MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL
OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE
OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. THESE
SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN
ACCOUNT SECURED BY SUCH SECURITIES.
The Company acknowledges and agrees that a Purchaser may from time
to time pledge, and/or grant a security interest in some or all of the Shares,
in accordance with applicable securities laws, pursuant to a bona fide margin
agreement in connection with a bona fide margin account and, if required under
the terms of such agreement or account, such Purchaser may transfer pledged or
secured Shares to the pledgees or secured parties. Such a pledge or transfer
would not be subject to approval or consent of the Company and no legal opinion
of legal counsel to the pledgee, secured party or pledgor shall be required in
connection with the pledge, but such legal opinion may be required in connection
with a subsequent transfer, following default by the Purchaser, to the
transferee of the pledge. No notice shall be required of such pledge. At the
appropriate Purchaser's expense, the Company will execute and deliver such
reasonable documentation as a pledgee or secured party of Shares may reasonably
request in connection with a pledge or transfer of the Securities including,
without limitation, the preparation and filing of any required prospectus
supplement under Rule 424(b)(3) of the Securities Act or other applicable
provision of the Securities Act to appropriately amend the list of Selling
Stockholders thereunder.
-16-
(c) Certificates evidencing the Shares shall not contain any legend
(including, without limitation, the legend set forth in Section 4.1(b)): (i)
while a registration statement (including, without limitation, the Registration
Statement) covering the resale of such Shares is effective under the Securities
Act or (ii) following any sale of such Shares pursuant to Rule 144, or (iii)
while such Shares are eligible for sale under Rule 144(k), or (iv) if such
legend is not required under applicable requirements of the Securities Act
(including, without limitation, judicial interpretations and pronouncements
issued by the Staff of the Commission). The Company shall use its best efforts
to cause its counsel to issue any legal opinion or instruction required by the
Company's transfer agent to comply with the requirements set forth in this
Section. At such time as a legend is no longer required for the Shares under
this Section 4.1(c), the Company will, no later than five Trading Days following
the delivery by a Purchaser to the Company or the Company's transfer agent of a
certificate representing Shares containing a restrictive legend, deliver or
cause to be delivered to such Purchaser a certificate representing such Shares
that is free from all restrictive and other legends. The Company may not make
any notation on its records or give instructions to any transfer agent of the
Company that enlarge the restrictions on transfer set forth in this Section
except as it may reasonably determine, upon written advice of counsel, are
necessary to comply or to ensure compliance with applicable laws; provided,
however, that at such time as such notation or enlarged restrictions are no
longer necessary to comply or to ensure compliance with applicable laws, the
Company shall take such actions as are necessary to immediately eliminate such
notation or enlarged restrictions.
4.2 Furnishing of Information. As long as any Purchaser owns Shares, the
Company covenants to timely file (or obtain extensions in respect thereof and
file within the applicable grace period) all reports required to be filed by the
Company after the date hereof pursuant to the Exchange Act. As long as any
Purchaser owns Shares, if the Company is not required to file reports pursuant
to such laws, it will prepare and furnish to the Purchasers and make publicly
available in accordance with Rule 144(c) such information as is required for the
Purchasers to sell the Shares under Rule 144. The Company further covenants that
it will take such further action as any holder of Shares may reasonably request,
all to the extent required from time to time to enable such Person to sell such
Shares without registration under the Securities Act within the limitation of
the exemptions provided by Rule 144.
4.3 Integration. The Company shall not, and shall use its best efforts to
ensure that no Affiliate of the Company shall, sell, offer for sale or solicit
offers to buy or otherwise negotiate in respect of any security (as defined in
Section 2 of the Securities Act) that will be integrated with the offer or sale
of the Shares in a manner that would require the registration under the
Securities Act of the sale of the Shares to the Purchasers, or that will be
integrated with the offer or sale of the Shares for purposes of the rules and
regulations of any Trading Market.
-17-
4.4 Securities Laws Disclosure; Publicity. The Company shall, on or before
8:30 a.m., New York time, on the first Business Day following execution of this
Agreement, issue a press release reasonably acceptable to the Purchasers
disclosing the consummation of the transactions contemplated hereby and, within
four Business Days following execution of this Agreement, file a Current Report
on Form 8-K disclosing the consummation of the transactions contemplated hereby,
and in connection therewith, shall be permitted to file true and correct copies
of this Agreement and the Registration Rights Agreement. In addition, the
Company will make such other filings and notices in the manner and time required
by the Commission and the Trading Market on which the Common Stock is listed.
Notwithstanding the foregoing, the Company shall not publicly disclose the name
of any Purchaser, or include the name of any Purchaser in any filing with the
Commission (other than the Registration Statement, the Current Report on Form
8-K required in connection with this transaction, and any exhibits to filings
made in respect of this transaction in accordance with periodic filing
requirements under the Exchange Act) or any regulatory agency or Trading Market,
without the prior written consent of such Purchaser, except to the extent such
disclosure is required by law or Trading Market or Commission regulations, in
which case the Company shall provide the Purchasers with reasonable prior notice
of such disclosure (other than a disclosure in such Current Report or in such
exhibits). The Company shall not, and shall use its best efforts to cause each
of its Subsidiaries and its and each of their respective officers, directors,
employees and agents not to, provide any Purchaser with any material nonpublic
information regarding the Company or any of its Subsidiaries from and after the
issuance of the above referenced press release without the express written
consent of such Purchaser.
4.5 Indemnification of Purchasers. In addition to the indemnity provided
in the Registration Rights Agreement, the Company will indemnify and hold the
Purchasers and their directors, officers, shareholders, partners, employees and
agents (each, a "PURCHASER PARTY") harmless from any and all losses,
liabilities, obligations, claims, contingencies, damages, costs and expenses,
including, without limitation, all judgments, amounts paid in settlements, court
costs and reasonable attorneys' fees and costs of investigation (collectively,
"LOSSES") that any such Purchaser Party may suffer or incur as a result of or
relating to (i) any misrepresentation, breach or inaccuracy of any
representation, warranty, covenant or agreement made by the Company in any
Transaction Document, or (ii) the failure of the Company to cause its counsel to
issue the legal opinion or instruction described in Section 4.1(c). In addition
to the indemnity contained herein, the Company will reimburse each Purchaser
Party for its reasonable legal and other expenses (including, without
limitation, the cost of any investigation, preparation and travel in connection
therewith) incurred in connection therewith, as such expenses are incurred.
4.6 Use of Proceeds. The Company shall use the net proceeds from the sale
of the Shares hereunder in the manner set forth in the description of "Use of
Proceeds" contained in the Confidential Memorandum. Such proceeds shall not be
used by the Company for the satisfaction of any portion of the Company's
outstanding debt (other than liabilities incurred in the ordinary course of the
Company's business and consistent with past practices and other than to make
payments on any outstanding indebtedness incurred under that certain Indenture,
dated as of December 18, 2001, between the Company and State Street Bank and
Trust Company as debenture trustee for floating rate junior subordinated
deferrable interest debentures due 2031 and that certain Indenture, dated as of
December 19, 2003, between the Company and Wilmington Trust Company relating to
$5.0 million aggregate principal amount of floating rate junior subordinated
debt securities due 2034), to redeem any capital stock of the Company or to
settle any outstanding Action.
-18-
4.7 Listing of Securities. The Company shall: (i) in the time and manner
required by each Trading Market on which the Common Stock is listed, prepare and
file with such Trading Market an additional shares listing application covering
the Shares, (ii) take all steps necessary to cause the Shares to be approved for
listing on each Trading Market on which the Common Stock is listed as soon as
possible thereafter, (iii) provide to each Purchaser evidence of such listing,
and (iv) maintain the listing of the Shares on each such Trading Market or
another eligible securities market.
ARTICLE V.
CLOSING CONDITIONS
5.1 Conditions Precedent to the Obligations of the Purchasers to Purchase
Shares on the Closing Date. The obligation of each Purchaser to acquire Shares
at the Closing is subject to the satisfaction or waiver by such Purchaser, at or
before the Closing, of each of the following conditions:
(a) Representations and Warranties. The representations and
warranties of the Company contained herein shall be true and correct in all
material respects as of the date when made and as of the Closing as though made
on and as of such date;
(b) Performance. The Company shall have performed, satisfied and
complied in all material respects with all covenants, agreements and conditions
required by the Transaction Documents to be performed, satisfied or complied
with by it at or prior to the Closing;
(c) No Injunction. No statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered, promulgated or
endorsed by any court or governmental authority of competent jurisdiction that
prohibits the consummation of any of the transactions contemplated by the
Transaction Documents; and
(d) No Suspensions of Trading in Common Stock; Listing. Trading in
the Common Stock shall not have been suspended by the Commission or any Trading
Market at any time since the date of execution of this Agreement, and the Common
Stock shall have been at all times since such date listed for trading on a
Trading Market.
5.2 Conditions Precedent to the Obligations of the Company to sell Shares
on the Closing Date. The obligation of the Company to sell Shares at the Closing
is subject to the satisfaction or waiver by the Company, at or before the
Closing, of each of the following conditions:
-19-
(a) Representations and Warranties. The representations and
warranties of each Purchaser contained herein shall be true and correct in all
material respects as of the date when made and as of the Closing Date as though
made on and as of such date;
(b) Performance. Each Purchaser shall have performed, satisfied and
complied in all material respects with all covenants, agreements and conditions
required by the Transaction Documents to be performed, satisfied or complied
with by such Purchaser at or prior to the Closing; and
(c) No Injunction. No statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered, promulgated or
endorsed by any court or governmental authority of competent jurisdiction that
prohibits the consummation of any of the transactions contemplated by the
Transaction Documents.
(d) Escrowed Funds. The Company shall have received an electronic
notification from the escrow agent identified in Schedule 2.2(b)(i), to the
effect that it has received (in its capacity as depositary for the Company), the
amount set forth on the funds disbursement instructions jointly agreed to by the
Company and the Placement Agent, and that, at the joint instructions of the
Company and the Placement Agent, it is prepared to wire transfer the amounts set
forth on such funds disbursement instructions, to the accounts designated in
such funds disbursement instructions.
ARTICLE VI.
MISCELLANEOUS
6.1 Fees and Expenses. At the Closing, the Company shall reimburse the
Placement Agent up to $50,000 of reasonable fees and disbursements of Xxxxxx,
Xxxxx & Xxxxxxx LLP in connection with the preparation of the Transaction
Documents, it being understood that Xxxxxx, Xxxxx & Bockius LLP has not rendered
any legal advice to the Company in connection with the transactions contemplated
hereby and that the Company has relied for such matters on the advice of its own
counsel. Except as specified in this Agreement or in the Registration Rights
Agreement, each party shall pay the fees and expenses of its advisers, counsel,
accountants and other experts, if any, and all other expenses incurred by such
party incident to the negotiation, preparation, execution, delivery and
performance of the Transaction Documents. The Company shall pay all stamp and
other taxes and duties levied in connection with the sale of the Shares.
6.2 Entire Agreement. The Transaction Documents, together with the
Exhibits and Schedules thereto, contain the entire understanding of the parties
with respect to the subject matter hereof and supersede all prior agreements and
understandings, oral or written, with respect to such matters, which the parties
acknowledge have been merged into such documents, exhibits and schedules.
-20-
6.3 Notices. Any and all notices or other communications or deliveries
required or permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of (a) the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile number
specified in this Section prior to 5:00 p.m. (New York time) on a Business Day,
and confirmation of such delivery is received, (b) the next Business Day after
the date of transmission, if such notice or communication is delivered via
facsimile at the facsimile number specified in this Section on a day that is not
a Business Day or later than 5:00 p.m. (New York time) on any date and earlier
than 11:59 p.m. (New York time) on such date, and confirmation of such delivery
is received, (c) the Business Day following the date of transmission, if sent by
U.S. nationally recognized overnight courier service, or (d) upon actual receipt
by the party to whom such notice is required to be given. The address for such
notices and communications shall be as follows:
If to the Company: Center Bancorp, Inc.
0000 Xxxxxx Xxxxxx
Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Chief Executive Officer
With a copy to: Xxxxxxxxxx Xxxxxxx PC
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000 (fax)
Attention: Xxxxx X. Xxxxxxxxx, Esquire
If to a Purchaser: To the address set forth under such Purchaser's
name on the signature pages hereof;
or such other address as may be designated in writing hereafter, in the same
manner, by such Person.
With a copy (for informational purposes only) to:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxx, Esq.
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6.4 Amendments; Waivers. No provision of this Agreement may be waived or
amended except in a written instrument signed by the Company and Purchasers of
not less than a majority of the Shares issued or issuable under this Agreement.
No waiver of any default with respect to any provision, condition or requirement
of this Agreement shall be deemed to be a continuing waiver in the future or a
waiver of any subsequent default or a waiver of any other provision, condition
or requirement hereof, nor shall any delay or omission of either party to
exercise any right hereunder in any manner impair the exercise of any such
right.
6.5 Construction. The headings herein are for convenience only, do not
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof. The language used in this Agreement will be deemed
to be the language chosen by the parties to express their mutual intent, and no
rules of strict construction will be applied against any party. This Agreement
shall be construed as if drafted jointly by the parties, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Agreement or any of the Transaction
Documents.
6.6 Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties and their successors and permitted assigns. The
Company may not assign its rights or obligations hereunder without the prior
written consent of each Purchaser except to any surviving or successor
corporation in connection with a merger or consolidation of the Company with
another corporation, after notice duly given by the Company in writing to each
Purchaser at least 20 days prior to the consummation of such transaction. Any
Purchaser may assign any or all of its rights under this Agreement to any Person
to whom such Purchaser assigns or transfers any Shares, provided such transferee
agrees in writing to be bound, with respect to the transferred Shares, by the
provisions hereof that apply to the "PURCHASERS."
6.7 No Third-Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective successors and permitted
assigns and except as otherwise expressly provided for herein, is not for the
benefit of, nor may any provision hereof be enforced by, any other Person.
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6.8 Governing Law. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of New
York, without regard to the principles of conflicts of law thereof. Each party
agrees that all Actions concerning the interpretations, enforcement and defense
of the transactions contemplated by this Agreement and any other Transaction
Documents (whether brought against a party hereto or its respective Affiliates,
employees or agents) may be commenced in the state and federal courts sitting in
the State of New York (the "NEW YORK COURTS"). Each party hereto hereby
irrevocably submits to the non-exclusive jurisdiction of the New York Courts for
the adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein (including, without
limitation, with respect to the enforcement of any of the Transaction
Documents), and hereby irrevocably waives, and agrees not to assert in any
Action, any claim that it is not personally subject to the jurisdiction of any
such New York Court, or that such Action has been commenced in an improper or
inconvenient forum. Each party hereto hereby irrevocably waives personal service
of process and consents to process being served in any such Action by mailing a
copy thereof via registered or certified mail or overnight delivery (with
evidence of delivery) to such party at the address in effect for notices to it
under this Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained herein shall
be deemed to limit in any way any right to serve process in any manner permitted
by law. Each party hereto hereby irrevocably waives, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any Action
arising out of or relating to this Agreement or the transactions contemplated
hereby. If either party shall commence an Action to enforce any provisions of a
Transaction Document, then the prevailing party in such Action shall be
reimbursed by the other party for its attorney's fees and other costs and
expenses incurred with the investigation, preparation and prosecution of such
Action.
6.9 Survival. The representations, warranties, agreements and covenants
contained herein shall survive the Closing and the delivery of the Shares.
6.10 Execution. This Agreement may be executed in two or more
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile signature page
were an original thereof.
6.11 Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their reasonable efforts to find and employ an alternative means to achieve the
same or substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and declared to be
the intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
6.12 Replacement of Shares. If any certificate or instrument evidencing
any Shares is mutilated, lost, stolen or destroyed, the Company shall issue or
cause to be issued in exchange and substitution for and upon cancellation
thereof, or in lieu of and substitution therefor, a new certificate or
instrument, but only upon receipt of evidence reasonably satisfactory to the
Company of such loss, theft or destruction and a customary and reasonable
indemnity and bond, if requested. The applicants for a new certificate or
instrument under such circumstances shall also pay any reasonable third-party
costs associated with the issuance of such replacement Shares. If a replacement
certificate or instrument evidencing any Shares is requested due to a mutilation
thereof, the Company may require delivery of such mutilated certificate or
instrument as a condition precedent to any issuance of a replacement.
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6.13 Remedies. In addition to being entitled to exercise all rights
provided herein or granted by law, including, without limitation, recovery of
damages, each of the Purchasers and the Company will be entitled to specific
performance under the Transaction Documents. The parties agree that monetary
damages may not be adequate compensation for any loss incurred by reason of any
breach of obligations described in the foregoing sentence and hereby agrees to
waive in any action for specific performance of any such obligation the defense
that a remedy at law would be adequate.
6.14 Payment Set Aside. To the extent that the Company makes a payment or
payments to any Purchaser pursuant to any Transaction Document or a Purchaser
enforces or exercises its rights thereunder, and such payment or payments or the
proceeds of such enforcement or exercise or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside, recovered
from, disgorged by or are required to be refunded, repaid or otherwise restored
to the Company, a trustee, receiver or any other person under any law
(including, without limitation, any bankruptcy law, state or federal law, common
law or equitable cause of action), then to the extent of any such restoration
and to the extent permitted by law, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such enforcement or setoff had not
occurred.
6.15 Independent Nature of Purchasers' Obligations and Rights. The
obligations of each Purchaser under any Transaction Document are several and not
joint with the obligations of any other Purchaser, and no Purchaser shall be
responsible in any way for the performance of the obligations of any other
Purchaser under any Transaction Document. The decision of each Purchaser to
purchase Shares pursuant to the Transaction Documents has been made by such
Purchaser independently of any other Purchaser. Nothing contained herein or in
any Transaction Document, and no action taken by any Purchaser pursuant thereto,
shall be deemed to constitute the Purchasers as a partnership, an association, a
joint venture or any other kind of entity, or create a presumption that the
Purchasers are in any way acting in concert or as a group with respect to such
obligations or the transactions contemplated by the Transaction Document. Each
Purchaser acknowledges that no other Purchaser has acted as agent for such
Purchaser in connection with making its investment hereunder and that no
Purchaser will be acting as agent of such Purchaser in connection with
monitoring its investment in the Shares or enforcing its rights under the
Transaction Documents. Each Purchaser shall be entitled to independently protect
and enforce its rights, including, without limitation, the rights arising out of
this Agreement or out of the other Transaction Document, and it shall not be
necessary for any other Purchaser to be joined as an additional party in any
Action for such purpose.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Stock Purchase
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.
CENTER BANCORP, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES FOR PURCHASERS FOLLOW]
SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Stock Purchase
Agreement as of the date first written above.
PURCHASERS:
BANC FUNDS V
By: /s/
BANC FUNDS VI
By: /s/
XXXXXXXX PARTNERS, L.P.
By: /s/
XXXXXXXX PARTNERS II, L.P.
By: /s/
XXXXXXXX OFFSHORE INVESTORS LTD
By: /s/
ENGINEERS JOINT PENSION PLAN
By: /s/
SUNOVA PARTNERS, L.P.
By: /s/
SUNOVA LONG TERM OPPORTUNITY FUND, L.P.
By: /s/
SUNOVA OFFSHORE LTD
By: /s/
FFC MANAGEMENT
By: /s/
SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT
