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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
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TABLE of CONTENTS
Page
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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
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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
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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
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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
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EXHIBIT 2.1
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:
1 ARTICLE
THE MERGER
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2.1 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.
2.2 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.
(a) Effects of the Merger. 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
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reflected or reserved against on balance sheets, books of account or records
of the Company or New Bank.
3 ARTICLE
EFFECT OF THE MERGER ON THE CAPITAL STOCK
OF THE CONSTITUENT BANKS; EXCHANGE OF CERTIFICATES
4.1 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
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"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.
4.2 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
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"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
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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.
(f) Stock Options. 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.
(g) 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.
4.3 No Liability 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.
4.4 Dissenters' Rights 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
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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.
5 ARTICLE
DISCLOSURE SCHEDULES; STANDARDS
FOR REPRESENTATIONS AND WARRANTIES
6.1 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.
(a) Standards. 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.
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(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.
7 ARTICLE
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:
(a) Corporate Organization Corporate Organization. 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
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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).
(d) Capitalization. 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
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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.
(e) 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.
(f) Authority; No Violation. 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
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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.
(g) 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.
8.2 Consents and Approvals 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
17
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.
8.3 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.
8.4 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
18
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.
8.5 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.
19
(a) Absence of Certain Changes or Events .
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.
(d) Legal Proceedings. 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.
(e) 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.
20
(f) Taxes. 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.
(g) 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)
21
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.
(h) 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.
(i) Employees. 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.
(j) 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
22
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.
8.6 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
23
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.
8.7 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.
8.8 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.
(a) Certain Contracts. 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
24
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.
8.9 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.
8.10 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.
8.11 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");
25
(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.
8.12 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
26
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.
8.13 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.
8.14 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.
(a) Loan Portfolio. 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
27
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.
8.15 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.
8.16 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.
28
9 ARTICLE
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:
(a) Corporate Organization. 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
29
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.
(i) Authority; No Violation. 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
30
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.
(iii) 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.
(iv) 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.
(v) 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
31
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.
(vi) 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.
10.2 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
32
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.
10.3 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.
10.4 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.
10.5 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.
11 ARTICLE
COVENANTS
12.1 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
33
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;
(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;
(b) amend its organization certificate, by-laws or other similar governing
documents;
(c) 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
34
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;
35
(d) 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;
(e) enter into any new line of business;
(f) 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;
(g) 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;
(h) 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;
(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);
36
(i) 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;
(j) 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;
(k) file any application to relocate or terminate the operations of any banking
office of it or any of its Subsidiaries;
(l) 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;
(m) 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;
(n) 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
(o) agree to do any of the foregoing.
12.2 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
37
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.
13 ARTICLE
ADDITIONAL AGREEMENTS
(a) Subscription Offering. 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.
(d) Regulatory Matters. 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.
(e) The parties hereto shall cooperate with each other and use their reasonable
best efforts to promptly prepare and file all necessary
38
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.
(f) 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.
(g) 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.
(h) Access to Information. 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
39
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.
(i) 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.
(j) No investigation by the Parent or its representatives shall affect the
representations, warranties, covenants or agreements of the Company set forth
herein.
40
14.2 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.
14.3 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
41
comply with the terms and conditions of such consent, authorization, order or
approval.
(a) Employee Benefit Plans; Existing Agreements. 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
42
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.
(g) Indemnification. 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
43
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.
(h) 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.
44
(i) 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.
(j) 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.
14.4 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.
14.5 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.
14.6 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
45
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.
14.7 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.
14.8 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.
14.9 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.
14.10 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
46
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.
14.11 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.
14.12 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.
15 ARTICLE
CONDITIONS PRECEDENT
16.1 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
47
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.
16.2 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.
48
(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.
16.3 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.
49
(d) No Pending Governmental Actions. No proceeding initiated by any Governmental
Entity seeking an Injunction shall be pending.
17 ARTICLE
TERMINATION AND AMENDMENT
18.1 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;
50
(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 this
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
51
(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.
18.2 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.
(a) 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.
18.3 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.
18.4 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.
52
19 ARTICLE
GENERAL PROVISIONS
20.1 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.
20.2 Nonsurvival of Representations, Warranties and Agreements 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.
20.3 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.
20.4 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.
53
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.
20.5 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".
20.6 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.
20.7 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.
54
20.8 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.
20.9 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.
20.10 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.
20.11 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.
20.12 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.
55
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
56
EXHIBIT A
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:
1 ARTICLE
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
1
57
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.
(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.
1.3 The principal office of the Surviving Bank shall be at
[_______________________].
2 ARTICLE
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.
2
58
(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.
3
59
3 ARTICLE
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.
4 ARTICLE
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
60
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.
5 ARTICLE
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.
6 ARTICLE
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,
5
61
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.
6
62
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:
7
63
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
64
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
65
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
66
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
67
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
68
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
2
69
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.
3
