EXHIBIT 2
AGREEMENT AND
PLAN OF MERGER
between
HUBCO, INC.
and
LAFAYETTE AMERICAN BANK AND TRUST COMPANY
Dated: February 5, 1996
TABLE OF CONTENTS
Page
ARTICLE I - THE MERGER . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1. The Merger . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2. Effect of the Merger . . . . . . . . . . . . . . . . . . . . 1
1.3. Certificate of Incorporation . . . . . . . . . . . . . . . . 2
1.4. By-laws . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.5. Directors and Officers . . . . . . . . . . . . . . . . . . . 2
1.6. Effective Time and Closing . . . . . . . . . . . . . . . . . 2
1.7. Assurance by HUBCO . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE II - CONVERSION OF LAFAYETTE SHARES AND OPTIONS . . . . . . . . 3
2.1. Conversion of Lafayette Common Stock . . . . . . . . . . . . 3
(a) Exchange Ratio . . . . . . . . . . . . . . . . . . . . . 3
(b) Cancellation of Lafayette Certificates . . . . . . . . . 3
(c) Capital Changes . . . . . . . . . . . . . . . . . . . . 4
(d) Treasury Shares . . . . . . . . . . . . . . . . . . . . 4
2.2. Exchange of Certificates . . . . . . . . . . . . . . . . . . 4
(a) Exchange Agent . . . . . . . . . . . . . . . . . . . . . 4
(b) Exchange Procedures . . . . . . . . . . . . . . . . . . 5
(c) Distributions with Respect to Unexchanged Shares of
HUBCO Common Stock . . . . . . . . . . . . . . . . . . . 5
(d) No Further Rights in Lafayette Common Stock . . . . . . 6
(e) No Fractional Shares . . . . . . . . . . . . . . . . . . 6
(f) Termination of Exchange Fund . . . . . . . . . . . . . . 6
(g) No Liability . . . . . . . . . . . . . . . . . . . . . . 7
(h) Withholding Rights . . . . . . . . . . . . . . . . . . . 7
2.3. Stock Transfer Books . . . . . . . . . . . . . . . . . . . . 7
2.4. Dissenting Shares . . . . . . . . . . . . . . . . . . . . . 7
2.5. Merger Sub Common Stock . . . . . . . . . . . . . . . . . . 7
2.6 Lafayette Stock Options . . . . . . . . . . . . . . . . . . 8
(a) Vested Options . . . . . . . . . . . . . . . . . . . . . 8
(b) Unvested Options . . . . . . . . . . . . . . . . . . . . 8
2.7. Lafayette Warrants . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE III - REPRESENTATIONS AND WARRANTIES OF LAFAYETTE . . . . . . . 9
3.1. Corporate Organization . . . . . . . . . . . . . . . . . . . 9
3.2. Capitalization . . . . . . . . . . . . . . . . . . . . . . . 10
3.3. Authority; No Violation . . . . . . . . . . . . . . . . . . 11
3.4. Financial Statements . . . . . . . . . . . . . . . . . . . . 12
3.5. Broker's and Other Fees . . . . . . . . . . . . . . . . . . 13
3.6. Absence of Certain Changes or Events . . . . . . . . . . . . 13
3.7. Legal Proceedings . . . . . . . . . . . . . . . . . . . . . 13
3.8. Taxes and Tax Returns . . . . . . . . . . . . . . . . . . . 14
3.9. Director, Officer and Employee Benefit Plans . . . . . . . . 15
3.10. Reports . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.11. Lafayette Information . . . . . . . . . . . . . . . . . . . 18
3.12. Compliance with Applicable Law . . . . . . . . . . . . . . . 18
3.13. Certain Contracts . . . . . . . . . . . . . . . . . . . . . 19
3.14. Properties and Insurance . . . . . . . . . . . . . . . . . . 20
3.15. Minute Books . . . . . . . . . . . . . . . . . . . . . . . . 20
3.16. Environmental Matters . . . . . . . . . . . . . . . . . . . 20
3.17. Reserves . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.18. No Parachute Payments . . . . . . . . . . . . . . . . . . . 22
3.19. Agreements with Bank Regulators . . . . . . . . . . . . . . 22
3.20. Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF HUBCO . . . . . . . . . 22
4.1. Corporate Organization . . . . . . . . . . . . . . . . . . . 23
4.2. Capitalization . . . . . . . . . . . . . . . . . . . . . . . 23
4.3. Authority; No Violation . . . . . . . . . . . . . . . . . . 24
4.4. Financial Statements . . . . . . . . . . . . . . . . . . . . 25
4.5. Brokerage Fees . . . . . . . . . . . . . . . . . . . . . . . 26
4.6. Absence of Certain Changes or Events . . . . . . . . . . . . 26
4.7. Legal Proceedings . . . . . . . . . . . . . . . . . . . . . 26
4.8. Compliance With Applicable Law . . . . . . . . . . . . . . . 26
4.9. HUBCO Information . . . . . . . . . . . . . . . . . . . . . 27
4.10. Funding and Capital Adequacy . . . . . . . . . . . . . . . . 27
4.11. HUBCO Common Stock . . . . . . . . . . . . . . . . . . . . . 27
4.12. Taxes and Tax Returns . . . . . . . . . . . . . . . . . . . 28
4.13. Employee Benefit Plans . . . . . . . . . . . . . . . . . . . 28
4.14. Contracts . . . . . . . . . . . . . . . . . . . . . . . . . 30
4.15. Properties and Insurance . . . . . . . . . . . . . . . . . . 30
4.16. Environmental Matters . . . . . . . . . . . . . . . . . . . 31
4.17. Reserves . . . . . . . . . . . . . . . . . . . . . . . . . . 31
4.18. Agreements with Bank Regulators . . . . . . . . . . . . . . 32
4.19. Disclosures . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE V - COVENANTS OF THE PARTIES . . . . . . . . . . . . . . . . . 32
5.1. Conduct of the Business of Lafayette . . . . . . . . . . . 32
5.2. Negative Covenants . . . . . . . . . . . . . . . . . . . . . 32
5.3. No Solicitation . . . . . . . . . . . . . . . . . . . . . . 34
5.4. Current Information . . . . . . . . . . . . . . . . . . . . 34
5.5. Access to Properties and Records; Confidentiality . . . . . 35
5.6. Regulatory Matters . . . . . . . . . . . . . . . . . . . . . 36
5.7. Approval of Stockholders . . . . . . . . . . . . . . . . . . 38
5.8. Further Assurances . . . . . . . . . . . . . . . . . . . . . 39
5.9. Public Announcements . . . . . . . . . . . . . . . . . . . . 40
5.10. Failure to Fulfill Conditions . . . . . . . . . . . . . . . 40
5.11. Indemnification and Insurance . . . . . . . . . . . . . . . 40
5.12. Employee Matters . . . . . . . . . . . . . . . . . . . . . . 42
5.13. Disclosure Supplements . . . . . . . . . . . . . . . . . . . 43
5.14. Expenses of Lafayette . . . . . . . . . . . . . . . . . . . 43
5.15. Compliance with Antitrust Laws . . . . . . . . . . . . . . . 44
5.16. Comfort Letters . . . . . . . . . . . . . . . . . . . . . . 44
5.17. Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . 45
5.18. Pooling and Tax-Free Reorganization Treatment . . . . . . . 45
ARTICLE VI - CLOSING CONDITIONS . . . . . . . . . . . . . . . . . . . . 45
6.1. Conditions of Each Party's Obligations Under this
Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . 45
(a) Approval of Lafayette Stockholders; SEC Registration . . 45
(b) Regulatory Filings . . . . . . . . . . . . . . . . . . . 46
(c) Suits and Proceedings . . . . . . . . . . . . . . . . . 46
(d) Tax Opinion . . . . . . . . . . . . . . . . . . . . . . 46
(e) Pooling of Interests . . . . . . . . . . . . . . . . . . 47
6.2. Conditions to the Obligations of HUBCO Under this
Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . 47
(a) Representations and Warranties; Performance of
Obligations of Lafayette . . . . . . . . . . . . . . . . 47
(b) Opinion of Counsel to Lafayette . . . . . . . . . . . . 47
(c) Consent of Holders of Stock Options . . . . . . . . . . 48
(d) Connecticut DEP Compliance . . . . . . . . . . . . . . . 48
(e) Resignations and Elections. . . . . . . . . . . . . . . 48
(f) No Ownership Change . . . . . . . . . . . . . . . . . . 48
(g) Certificates . . . . . . . . . . . . . . . . . . . . . . 48
6.3. Conditions to the Obligations of Lafayette Under this
Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . 48
(a) Representations and Warranties; Performance of
Obligations of HUBCO . . . . . . . . . . . . . . . . . . 48
(b) Opinion of Counsel to HUBCO . . . . . . . . . . . . . . 49
(c) Fairness Opinion . . . . . . . . . . . . . . . . . . . . 49
(d) Certain Contracts . . . . . . . . . . . . . . . . . . . 49
(e) Directors . . . . . . . . . . . . . . . . . . . . . . . 49
(f) Certificates . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE VII - TERMINATION, AMENDMENT AND WAIVER . . . . . . . . . . . . 49
7.1. Termination . . . . . . . . . . . . . . . . . . . . . . . . 49
7.2. Effect of Termination . . . . . . . . . . . . . . . . . . . 52
7.3. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . 53
7.4. Extension; Waiver . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE VIII - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . 53
8.1. Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . 53
8.2. Survival . . . . . . . . . . . . . . . . . . . . . . . . . . 53
8.3. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 54
8.4. Parties in Interest . . . . . . . . . . . . . . . . . . . . 54
8.5. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . 54
8.6. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . 55
8.7. Governing Law . . . . . . . . . . . . . . . . . . . . . . . 55
8.8. Descriptive Headings . . . . . . . . . . . . . . . . . . . . 55
8.9. Knowledge . . . . . . . . . . . . . . . . . . . . . . . . . 55
EXHIBIT 1 TO
HUBCO/LAFAYETTE MERGER AGREEMENT
EXHIBIT 5.17
FORM OF LAFAYETTE AFFILIATE LETTER
EXHIBIT 5.17-2
FORM OF AFFILIATE LETTER FOR HUBCO AFFILIATES
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated as of February 5, 1996
("Agreement"), between HUBCO, INC. ("HUBCO"), a New Jersey corporation and
registered bank holding company, and LAFAYETTE AMERICAN BANK AND TRUST
COMPANY, a commercial bank organized under the laws of Connecticut
("Lafayette").
WHEREAS, the respective Boards of Directors of HUBCO and
Lafayette, by the requisite vote required under applicable law, have each
determined that it is in the best interests of HUBCO and Lafayette and
their respective stockholders for HUBCO to acquire Lafayette (i) by HUBCO
organizing an interim commercial bank under the laws of Connecticut
("Merger Sub") and (ii) merging Merger Sub with and into Lafayette upon the
terms and subject to the conditions set forth herein;
WHEREAS, the respective Boards of Directors of HUBCO and
Lafayette, by the requisite vote required under applicable law, have each
approved this Agreement upon the terms and subject to the conditions set
forth herein;
WHEREAS, the Boards of Directors of Lafayette and HUBCO have
directed that this Agreement be submitted to HUBCO's and Lafayette's
shareholders for approval;
WHEREAS, upon the demand of and as an inducement for HUBCO to
enter into this transaction, Lafayette has entered into a Stock Option
Agreement, dated as of the date hereof (the "HUBCO Stock Option");
NOW, THEREFORE, intending to be legally bound, the parties hereto
hereby agree as follows:
ARTICLE I - THE MERGER
1.1. THE MERGER. Subject to the terms and conditions of this
Agreement, at the Effective Time (as hereinafter defined), Merger Sub shall
be merged with and into Lafayette (the "Merger") in accordance with Section
36a-125 of the Banking Law of Connecticut (the "Connecticut Banking Act")
and Lafayette shall be the surviving bank (the "Surviving Corporation"),
the name of which shall continue to be Lafayette American Bank and Trust
Company. Exhibit 1 to this Agreement lists (i) the locations of the main
office of and branch offices of Lafayette which shall be the main office
and branch offices of the Surviving Corporation; and (ii) the amount of the
capital stock, the number of shares, the par value and the amount of
surplus of the Surviving Corporation which shall be the same amounts as
Lafayette.
1.2. EFFECT OF THE MERGER. At the Effective Time, the Surviving
Corporation shall be considered the same business and corporate entity as
each of the Merger Sub and Lafayette and thereupon and thereafter, all the
property, rights, privileges, powers and franchises of each of the Merger
Sub and Lafayette shall vest in the Surviving Corporation and the Surviving
Corporation shall be subject to and be deemed to have assumed all of the
debts, liabilities, obligations and duties of each of the Merger Sub and
Lafayette and shall have succeeded to all of each of their relationships,
as fully and to the same extent as if such property, rights, privileges,
powers, franchises, debts, liabilities, obligations, duties and
relationships had been originally acquired, incurred or entered into by the
Surviving Corporation. In addition, any reference to either of the Merger
Sub or Lafayette in any contract or document, whether executed or taking
effect before or after the Effective Time, shall be considered a reference
to the Surviving Corporation if not inconsistent with the other provisions
of the contract or document; and any pending action or other judicial
proceeding to which either of the Merger Sub or Lafayette is a party, shall
not be deemed to have abated or to have discontinued by reason of the
Merger, but may be prosecuted to final judgment, order or decree in the
same manner as if the Merger had not been made, or the Surviving
Corporation may be substituted as a party to such action or proceeding, and
any judgment, order or decree may be rendered for or against it that might
have been rendered for or against either of the Merger Sub or Lafayette as
if the Merger had not occurred.
1.3. CERTIFICATE OF INCORPORATION. As of the Effective Time,
the certificate of incorporation of Lafayette as it exists at the Effective
Time shall be the certificate of incorporation of the Surviving Corporation
and shall not be amended by this Agreement or the Merger but may be amended
as provided by law thereafter.
1.4. BY-LAWS. As of the Effective Time, the By-laws of
Lafayette shall be the By-laws of the Surviving Corporation until otherwise
amended as provided by law.
1.5. DIRECTORS AND OFFICERS. There shall be not more than
fifteen or less than twelve directors of the Surviving Corporation as of
the Effective Time. As of the Effective Time, the directors of the
Surviving Corporation shall consist of three officers of HUBCO selected by
HUBCO and not fewer than nine directors of Lafayette nominated by Lafayette
and acceptable to HUBCO. As of the Effective Time, the officers of
Lafayette shall become the officers of the Surviving Corporation, subject
to any changes which HUBCO shall specify on or before the Closing.
1.6. EFFECTIVE TIME AND CLOSING. The Merger shall become
effective (and be consummated) upon the date specified in a certificate
executed by HUBCO and Lafayette filed with the Connecticut Secretary of
State after the approval of the Connecticut Commissioner of Banking (the
"Commissioner"). Lafayette shall not unreasonably withhold its approval of
the Effective Time, which shall be consistent with this section. A closing
(the "Closing") shall take place prior to the Effective Time at 10:00 a.m.,
10 days (or the first business day thereafter) following the receipt of all
necessary regulatory and governmental approvals and consents and the
expiration of all statutory waiting periods in respect thereof and the
satisfaction or waiver of all of the conditions to the consummation of the
Merger specified in Article VI hereof (other than the delivery of
certificates, opinions and other instruments and documents to be delivered
at the Closing), at the offices of Pitney, Xxxxxx, Xxxx & Xxxxx, 000 Xxxxxx
Xxxxx, Xxxxxxx Xxxx, Xxx Xxxxxx, or at such other place, time or date as
HUBCO and Lafayette may mutually agree upon. The certificate filed with
the Secretary of State shall specify as the Effective Time of the Merger a
date, immediately following the Closing, agreed to by HUBCO and Lafayette.
Following the execution of this Agreement, HUBCO and Lafayette shall, if
required or advised to do so by applicable regulatory authorities, execute
and deliver a simplified or supplemental merger agreement, both in form and
substance reasonably satisfactory to the parties hereto and consistent with
the terms hereof, for delivery to the Secretary of State and the
Commissioner in connection with the approval of the Merger by the
regulatory authorities.
1.7. ASSURANCE BY HUBCO. HUBCO shall provide the Commissioner
with such assurances as the Commissioner reasonably shall require that
after the Effective Time, Lafayette will comply with applicable minimum
capital requirements.
ARTICLE II - CONVERSION OF LAFAYETTE SHARES AND OPTIONS
2.1. CONVERSION OF LAFAYETTE COMMON STOCK. Each share of common
stock, no par value, of Lafayette ("Lafayette Common Stock"), issued and
outstanding immediately prior to the Effective Time (other than Dissenting
Shares as defined in Section 2.4) shall, by virtue of the Merger and
without any action on the part of the holder thereof, be converted as
follows:
(a) EXCHANGE RATIO. Subject to the provisions of this Section
2.1, each share of Lafayette Common Stock issued and outstanding
immediately prior to the Effective Time (excluding any treasury shares,
shares held by HUBCO and Dissenting Shares) shall be converted at the
Effective Time into the right to receive 0.5880 of a share (the "Exchange
Ratio") of common stock, no par value, of HUBCO ("HUBCO Common Stock").
(b) CANCELLATION OF LAFAYETTE CERTIFICATES. After the Effective
Time, all such shares of Lafayette Common Stock (other than those cancelled
pursuant to Section 2.1(d)) shall no longer be outstanding and shall
automatically be cancelled and retired and shall cease to exist, and each
certificate previously evidencing any such shares (other than Dissenting
Shares and those cancelled pursuant to Section 2.1(d)) shall thereafter
represent the right to receive the Merger Consideration (as defined in
Section 2.2(b)). The holders of such certificates previously evidencing
such shares of Lafayette Common Stock outstanding immediately prior to the
Effective Time shall cease to have any rights with respect to such shares
of Lafayette Common Stock except as otherwise provided herein or by law.
Such certificates previously evidencing such shares of Lafayette Common
Stock (other than Dissenting Shares and those cancelled pursuant to Section
2.1(d)) shall be exchanged for certificates evidencing shares of HUBCO
Common Stock issued pursuant to this Article II, upon the surrender of such
certificates in accordance with this Article II. No fractional shares of
HUBCO Common Stock shall be issued, and, in lieu thereof, a cash payment
shall be made pursuant to Section 2.2(e).
(c) CAPITAL CHANGES. If between the date hereof and the
Effective Time the outstanding shares of HUBCO Common Stock shall have been
changed into a different number of shares or a different class, by reason
of any stock dividend, stock split, reclassification, recapitalization,
merger, combination or exchange of shares, the Exchange Ratio and the
definition of Closing Price (as set forth in Section 2.2(e)) shall be
correspondingly adjusted to reflect such stock dividend, stock split,
reclassification, recapitalization, merger, combination or exchange of
shares.
(d) TREASURY SHARES. All shares of Lafayette Common Stock held
by Lafayette in its treasury or owned by HUBCO or Xxxxxx United Bank (the
"Bank") (other than shares held as trustee or in a fiduciary capacity and
shares held as collateral on or in lieu of a debt previously contracted)
immediately prior to the Effective Time shall be cancelled.
2.2. EXCHANGE OF CERTIFICATES.
(a) EXCHANGE AGENT. As of the Effective Time, HUBCO shall
deposit, or shall cause to be deposited, with a bank or trust company
designated by HUBCO (the "Exchange Agent"), which may be Xxxxxx United
Bank, Trust Department, for the benefit of the holders of shares of
Lafayette Common Stock, for exchange in accordance with this Article II,
through the Exchange Agent, certificates evidencing shares of HUBCO Common
Stock and cash in such amount such that the Exchange Agent possesses such
number of shares of HUBCO Common Stock and such amount of cash as are
required to provide all of the consideration required to be exchanged by
HUBCO pursuant to the provisions of this Article II (such certificates for
shares of HUBCO Common Stock, together with any dividends or distributions
with respect thereto, and cash being hereinafter referred to as the
"Exchange Fund"). The Exchange Agent shall, pursuant to irrevocable
instructions, deliver the HUBCO Common Stock and cash out of the Exchange
Fund in accordance with Section 2.1. Except as contemplated by Section
2.2(f) hereof, the Exchange Fund shall not be used for any other purpose.
(b) EXCHANGE PROCEDURES. As soon as reasonably practicable
either before or after the Effective Time, Earth will instruct the Exchange
Agent to mail to each holder of record of a certificate or certificates
which immediately prior to the Effective Time evidenced outstanding shares
of Lafayette Common Stock (other than Dissenting Shares) (the
"Certificates"), (i) a letter of transmittal (the form and substance of
which is reasonably agreed to by HUBCO and Lafayette prior to the Effective
Time and which shall specify that delivery shall be effected, and risk of
loss and title to the Certificates shall pass, only upon proper delivery of
the Certificates to the Exchange Agent and which shall have such other
provisions as HUBCO may reasonably specify) and (ii) instructions for
effecting the surrender of the Certificates in exchange for certificates
evidencing shares of HUBCO Common Stock. Upon surrender of a Certificate
for cancellation to the Exchange Agent together with such letter of
transmittal, duly executed, and such other customary documents as may be
required pursuant to such instructions, the holder of such Certificate
shall be entitled to receive in exchange therefor (A) certificates
evidencing that number of whole shares of HUBCO Common Stock which such
holder has the right to receive in respect of the shares of Lafayette
Common Stock formerly evidenced by such Certificate in accordance with
Section 2.1 and (B) cash in lieu of fractional shares of HUBCO Common Stock
to which such holder may be entitled pursuant to Section 2.2(e) (the shares
of HUBCO Common Stock and cash described in clauses (A) and (B) being
collectively, the "Merger Consideration") and the Certificate so
surrendered shall forthwith be cancelled. In the event of a transfer of
ownership of shares of Lafayette Common Stock which is not registered in
the transfer records of Lafayette, a certificate evidencing the proper
number of shares of HUBCO Common Stock and/or cash may be issued and/or
paid in accordance with this Article II to a transferee if the Certificate
evidencing such shares of Lafayette Common Stock is presented to the
Exchange Agent, accompanied by all documents required to evidence and
effect such transfer and by evidence that any applicable stock transfer
taxes have been paid. Until surrendered as contemplated by this Section
2.2, each Certificate shall be deemed at any time after the Effective Time
to evidence only the right to receive upon such surrender the Merger
Consideration. HUBCO shall establish appropriate procedures that will
enable holders of unexchanged stock certificates of Lafayette's
predecessors (which certificates represent shares of, or the right to
receive shares of, Lafayette Common Stock) to directly exchange such
certificates for the Merger Consideration.
(c) DISTRIBUTIONS WITH RESPECT TO UNEXCHANGED SHARES OF HUBCO
COMMON STOCK. No dividends or other distributions declared or made after
the Effective Time with respect to HUBCO Common Stock with a record date
after the Effective Time shall be paid to the holder of any unsurrendered
Certificate with respect to the shares of HUBCO Common Stock evidenced
thereby, and no other part of the Merger Consideration shall be paid to any
such holder, until the holder of such Certificate shall surrender such
Certificate (or a suitable affidavit of loss and customary bond). Subject
to the effect of applicable laws, following surrender of any such
Certificate, there shall be paid to the holder of the certificates
evidencing shares of HUBCO Common Stock issued in exchange therefor,
without interest, (i) promptly, the amount of any cash payable with respect
to a fractional share of HUBCO Common Stock to which such holder may have
been entitled pursuant to Section 2.2(e) and the amount of dividends or
other distributions with a record date on or after the Effective Time
theretofore paid with respect to such shares of HUBCO Common Stock, and
(ii) at the appropriate payment date, the amount of dividends or other
distributions, with a record date on or after the Effective Time but prior
to surrender and a payment date occurring after surrender, payable with
respect to such shares of HUBCO Common Stock.
(d) NO FURTHER RIGHTS IN LAFAYETTE COMMON STOCK. All shares of
HUBCO Common Stock issued and cash paid upon conversion of the shares of
Lafayette Common Stock in accordance with the terms hereof shall be deemed
to have been issued or paid in full satisfaction of all rights pertaining
to such shares of Lafayette Common Stock.
(e) NO FRACTIONAL SHARES. No certificates or scrip evidencing
fractional shares of HUBCO Common Stock shall be issued upon the surrender
for exchange of Certificates and such fractional share interests will not
entitle the owner thereof to vote or to any rights of a stockholder of
HUBCO. Cash shall be paid in lieu of fractional shares of HUBCO Common
Stock, based upon the Median Pre-Closing Price (as hereinafter defined) of
HUBCO Common Stock.
The "Median Pre-Closing Price" of HUBCO Common Stock shall mean
the Median Price (as hereinafter defined) calculated based upon the Closing
Price (as hereinafter defined) of HUBCO Common Stock during the first 20 of
the 25 consecutive trading days immediately preceding the date of the
Closing. The "Closing Price" shall mean the closing price of HUBCO Common
Stock as supplied by the National Association of Securities Dealers
Automated Quotation System ("NASDAQ") and published in THE WALL STREET
JOURNAL during the first 20 of the 25 consecutive trading days immediately
preceding the date of the Closing. The Median Price shall be determined by
taking the price half-way between the Closing Prices left after discarding
the 9 lowest and 9 highest Closing Prices in the 20 day period. A trading
day shall mean a day for which a Closing Price is so supplied and
published.
(f) TERMINATION OF EXCHANGE FUND. Any portion of the Exchange
Fund which remains undistributed to the holders of Lafayette Common Stock
for two years after the Effective Time shall be delivered to HUBCO, upon
demand, and any holders of Lafayette Common Stock who have not theretofore
complied with this Article II shall thereafter look only to HUBCO for the
Merger Consideration, dividends and distributions to which they are
entitled.
(g) NO LIABILITY. Neither HUBCO nor the Bank shall be liable to
any holder of shares of Lafayette Common Stock for any such shares of HUBCO
Common Stock or cash (or dividends or distributions with respect thereto)
delivered to a public official pursuant to any applicable abandoned
property, escheat or similar law.
(h) WITHHOLDING RIGHTS. HUBCO shall be entitled to deduct and
withhold, or cause the Exchange Agent to deduct and withhold, from funds
provided by the holder or from the consideration otherwise payable pursuant
to this Agreement to any holder of Lafayette Stock Options (as defined in
Section 3.2), the minimum amounts (if any) that HUBCO is required to deduct
and withhold with respect to the making of such payment under the Code (as
defined in Section 3.8), or any provision of state, local or foreign tax
law. To the extent that amounts are so withheld by HUBCO, such withheld
amounts shall be treated for all purposes of this Agreement as having been
paid to the holder of the Lafayette Stock Options in respect of which such
deduction and withholding was made by HUBCO.
2.3. STOCK TRANSFER BOOKS. At the Effective Time, the stock
transfer books of Lafayette shall be closed and there shall be no further
registration of transfers of shares of Lafayette Common Stock thereafter on
the records of Lafayette. On or after the Effective Time, any Certificates
presented to the Exchange Agent or HUBCO for transfer shall be converted
into the Merger Consideration.
2.4. DISSENTING SHARES. Notwithstanding anything in this
Agreement to the contrary, any holder of Lafayette Common Stock shall have
the right to dissent in the manner provided in the Connecticut Banking Act,
and if all necessary requirements of the Connecticut Banking Act are met,
such shares shall be entitled to payment in cash from Lafayette of the fair
value of such shares as determined in accordance with the Connecticut
Banking Act. All shares of Lafayette Common Stock as to which the holder
thereof properly exercises dissenters' rights in accordance with the
Connecticut Banking Act shall constitute "Dissenting Shares" unless and
until such rights are waived by the party initially seeking to exercise
such rights.
2.5. MERGER SUB COMMON STOCK. The shares of common stock of the
Merger Sub outstanding immediately prior to the Effective Time shall be
converted by the Merger into the number of shares of the Surviving
Corporation which shall equal the number of shares of Lafayette Common
Stock outstanding at the Effective Time.
2.6 LAFAYETTE STOCK OPTIONS.
(a) VESTED OPTIONS. To the extent permitted under the Lafayette
Stock Option Plans (as defined in Section 3.2), Lafayette shall cause all
Stock Options (as defined in Section 3.2), which, as of the Effective Time,
would be vested (a "Vested Stock Option"), to be terminated at the
Effective Time unless the holder consents to the provisions hereof. At the
Effective Time, each outstanding Vested Stock Option shall be converted
into HUBCO Common Stock in accordance with the following formula:
(i) Each outstanding Vested Stock Option shall be valued
on the basis of the Median Pre-Closing Price of HUBCO Common Stock (as
defined in Section 2.2(e)) multiplied by the Exchange Ratio and
subtracting the stated exercise price for each Vested Stock Option
from the product therefrom (the "Option Value"), and
(ii) Each holder of Vested Stock Options shall receive at
the Effective Time, a number of shares of HUBCO Common Stock equal to
the aggregate Option Value for all of such holder's Vested Stock
Options, divided by the Median Pre-Closing Price of HUBCO Common
Stock.
(iii) Cash shall be paid in lieu of fractional shares,
based upon the Median Pre-Closing Price of HUBCO Common Stock.
(b) UNVESTED OPTIONS. Each Stock Option not fully vested at the
Effective Time (an "Unvested Stock Option") shall be converted into an
option to purchase HUBCO Common Stock, wherein (i) the right to purchase
shares of Lafayette Common Stock pursuant to the Unvested Stock Option
shall be converted into the right to purchase that same number of shares of
HUBCO Common Stock multiplied by the Exchange Ratio, (ii) the option
exercise price per share of HUBCO Common Stock shall be the previous option
exercise price per share of the Lafayette Common Stock divided by the
Exchange Ratio, and (iii) in all other material respects the option shall
be subject to the same terms and conditions as governed the Unvested Stock
Option on which it was based, including the length of time within which the
option may be exercised (which shall not be extended) and for all Unvested
Stock Options, such adjustments shall be and are intended to be effected in
a manner which is consistent with Section 424(a) of the Code (as defined in
Section 3.2). Shares of HUBCO Common Stock issuable upon exercise of
Unvested Stock Options shall be covered by an effective registration
statement on Form S-8.
2.7. LAFAYETTE WARRANTS. Each Lafayette Warrant (as defined in
Section 3.2) which evidences the right to purchase a number of shares of
Lafayette Common Stock and which is outstanding at the Effective Time
automatically shall be converted, without further action on the part of the
holder, into a like warrant to purchase for the same aggregate purchase
price that number of shares of HUBCO Common Stock which equals the number
of shares of Lafayette Common Stock which may be purchased under the
Lafayette Warrant multiplied by the Exchange Ratio (each an "HUBCO
Warrant") and such HUBCO Warrant shall, in conformity with Section 3 of the
Lafayette Warrant, thereafter be subject to the same terms and conditions
as specified in the Lafayette Warrant, except that such HUBCO Warrant shall
be immediately exercisable. Prior to the Closing, HUBCO shall comply with
the provisions of Section 3.2 of the Lafayette Warrant and Lafayette shall
comply with the provisions of Section 1.5(b) of the Lafayette Warrant.
Following the Effective Time, any transferee of the Warrant Certificate
shall receive in exchange for any old Warrant Certificate a new HUBCO
Warrant Certificate evidencing the right to purchase HUBCO Common Stock.
Unless requested by a holder of an outstanding Lafayette Warrant, HUBCO
shall not be required to issue new Certificates evidencing the Warrant to
purchase HUBCO Common Stock but the old Lafayette Warrant certificates
shall continue to evidence such rights until exchanged, transferred or
exercised.
ARTICLE III - REPRESENTATIONS AND WARRANTIES OF LAFAYETTE
References herein to the "Lafayette Disclosure Schedule" shall
mean all of the disclosure schedules required by this Article III, dated as
of the date hereof and referenced to the specific sections and subsections
of Article III of this Agreement, which have been delivered on the date
hereof by Lafayette to HUBCO. Lafayette hereby represents and warrants to
HUBCO as follows:
3.1. CORPORATE ORGANIZATION.
(a) Lafayette is a banking corporation duly organized, validly
existing and in good standing under the laws of the State of Connecticut.
Lafayette has the corporate power and authority to own or lease all of its
properties and assets and to carry on its business as it is now being
conducted, and is duly licensed or qualified to do business and is in good
standing in each jurisdiction in which the nature of the business conducted
by it or the character or location of the properties and assets owned or
leased by it makes such licensing or qualification necessary, except where
the failure to be so licensed, qualified or in good standing would not have
a material adverse effect on the business, operations, assets or financial
condition of Lafayette. Lafayette is a state-chartered commercial bank
whose deposits are insured by the Bank Insurance Fund of the Federal
Deposit Insurance Corporation ("FDIC") to the fullest extent permitted by
law. The Lafayette Disclosure Schedule sets forth true and complete copies
of the Certificate of Incorporation and By-laws of Lafayette, as in effect
on the date hereof.
(b) Except as set forth in Lafayette Disclosure Schedule,
Lafayette has no Subsidiaries. When used with reference to Lafayette, the
term "Subsidiary" means any corporation, partnership, joint venture or
other legal entity in which Lafayette, directly or indirectly, owns at
least a 50 percent stock or other equity interest or for which Lafayette,
directly or indirectly, acts as a general partner. Each Subsidiary is a
corporation incorporated under the laws of the State of Connecticut. Each
subsidiary has the corporate power and authority to own or lease all of its
properties and assets and to carry on its business as it is now being
conducted and is duly licensed or qualified to do business and is in good
standing in each jurisdiction in which the nature of the business conducted
by it or the character or location of the properties and assets owned or
leased by it makes such licensing or qualification necessary, except where
the failure to be so licensed, qualified or in good standing would not have
a material adverse effect on the business, operations, assets or financial
condition of Lafayette and its Subsidiaries, taken as a whole. The
Lafayette Disclosure Schedule sets forth true and complete copies of the
certificate of incorporation and by-laws of each Subsidiary as in effect on
the date hereof.
3.2. CAPITALIZATION. The authorized capital stock of Lafayette
consists of 15,000,000 shares of Lafayette Common Stock, no par value, and
275,000 shares of Preferred Stock, par value $1.00 per share. As of the
date hereof, there are 10,006,529 shares of Lafayette Common Stock issued
and outstanding (excluding 7,000 shares held in treasury). All issued and
outstanding shares of Lafayette Common Stock have been duly authorized and
validly issued, are fully paid and non-assessable and free of preemptive
rights. No shares of Lafayette Preferred Stock have been issued. Except
for 11,250 shares issuable upon exercise of outstanding stock options
granted under the 1984 Incentive Stock Option Plan, 209,167 shares issuable
upon exercise of outstanding options granted under the 1994 Incentive Stock
Option Plan and 250,000 shares issuable upon exercise of stock options
granted to Xxxxxx Xxxxxxxxx pursuant to his employment agreement with
Lafayette (collectively all of such options are referred to herein as
"Stock Options" and the plans or terms under which they are granted are
referred to herein as the "Lafayette Stock Option Plans") and except for
122,980 shares issuable upon exercise of the Common Stock Purchase Warrants
(the "Lafayette Warrants") issued February 24, 1994 pursuant to a Standby
Purchase Agreement, dated as of November 15, 1993, and evidenced by Warrant
Certificates (the "Warrant Certificates"), as of the date hereof there are
no shares of Lafayette Common Stock issuable upon the exercise of
outstanding stock options or otherwise, and except for the Stock Options,
the Lafayette Warrants and the HUBCO Stock Option, Lafayette has not
granted and is not bound by any outstanding subscriptions, options,
warrants, calls, commitments or agreements of any character calling for the
transfer, purchase, subscription or issuance of any shares of capital stock
of Lafayette or any securities representing the right to purchase,
subscribe or otherwise receive any shares of such capital stock or any
securities convertible into any such shares, and there are no agreements or
understandings with respect to voting of any such shares. All outstanding
shares of capital stock of Lafayette's Subsidiaries, have been duly
authorized and validly issued, are fully paid, non-assessable and free of
preemptive rights, and are owned by Lafayette free and clear of all liens,
encumbrances, charges, restrictions or rights of third parties. True and
correct copies of each Stock Option grant, each Stock Option Plan and each
Lafayette Warrant are set forth in the Lafayette Disclosure Schedule.
3.3. AUTHORITY; NO VIOLATION.
(a) Subject to the approval of this Agreement and the
transactions contemplated hereby by the stockholders of Lafayette, the
receipt of all necessary governmental approvals, and the consent of any
Vested Stock Option holder necessary to exchange their option as provided
in Section 2.6(a), Lafayette has the full corporate power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby in accordance with the terms hereof. 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 Lafayette in accordance with the Certificate of Incorporation
of Lafayette and applicable laws and regulations. Except for such
approval, no other corporate proceedings on the part of Lafayette are
necessary to consummate the transactions so contemplated. This Agreement
has been duly and validly executed and delivered by Lafayette and
constitutes the valid and binding obligation of Lafayette, enforceable
against Lafayette in accordance with its terms.
(b) Neither the execution and delivery of this Agreement by
Lafayette, nor the consummation by Lafayette of the transactions
contemplated hereby in accordance with the terms hereof, or compliance by
Lafayette with any of the terms or provisions hereof, will (i) violate any
provision of Lafayette's Certificate of Incorporation or By-laws, (ii)
assuming that the consents and approvals set forth below are duly obtained,
violate any statute, code, ordinance, rule, regulation, judgment, order,
writ, decree or injunction applicable to Lafayette or any of its properties
or assets or those of any Subsidiary, or (iii) except as set forth in the
Lafayette Disclosure Schedule, violate, conflict with, result in a breach
of any provision of, constitute a default (or an event which, with notice
or lapse of time, or both, would constitute a default) under, result in the
termination of, accelerate the performance required by, or result in the
creation of any lien, security interest, charge or other encumbrance upon
any of the properties or assets of Lafayette or 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 Lafayette is a party, or by which it or any of its
properties or assets may be bound or affected, except, with respect to (ii)
and (iii) above, such as individually or in the aggregate will not have a
material adverse effect on the business, operations, assets or financial
condition of Lafayette and which will not prevent or delay the consummation
of the transactions contemplated hereby. Except for consents and approvals
of or filings or registrations with or notices to or required by the FDIC,
the Commissioner, the Connecticut Department of Banking (the "Department"),
the Connecticut Department of Environmental Protection ("DEP"), state blue
sky authorities or other applicable governmental authorities, the
stockholders of Lafayette, the holders of Lafayette Warrants and the
holders of Stock Options, no consents or approvals of or filings or
registrations with or notices to any third party or any public body or
authority are necessary on behalf of Lafayette or its Subsidiaries in
connection with (x) the execution and delivery by Lafayette of this
Agreement and (y) the consummation by Lafayette of the Merger and the other
transactions contemplated hereby, except (i) such as are listed in the
Lafayette Disclosure Schedule and (ii) such as individually or in the
aggregate will not (if not obtained) have a material adverse effect on the
business, operations, assets or financial condition of Lafayette and its
Subsidiaries taken as a whole or prevent or delay the consummation of the
transactions contemplated hereby. To the best of Lafayette's knowledge, no
fact or condition exists which Lafayette has reason to believe will prevent
it from obtaining the aforementioned consents and approvals.
3.4. FINANCIAL STATEMENTS.
(a) The Lafayette Disclosure Schedule sets forth copies of the
consolidated statements of condition of Lafayette as of December 31, 1994
and 1993, the related statements of operations, changes in shareholders'
equity and cash flows for the periods ended December 31, in each of the
three fiscal years 1992 through 1994, accompanied by the audit report
(which report includes explanatory paragraphs relating to certain
regulatory matters) of Xxxxxx Xxxxxxxx LLP, independent public accountants
with respect to Lafayette, and the unaudited consolidated statement of
condition of Lafayette as of September 30, 1995 and the related unaudited
statements of income and cash flows for the nine months then ended as
reported in Lafayette's Quarterly Report on Form F-4, filed with the FDIC
(collectively, the "Lafayette Financial Statements"). The Lafayette
Financial Statements (including the related notes) have been prepared in
accordance with generally accepted accounting principles ("GAAP")
consistently applied during the periods involved (except as may be
indicated therein or in the notes thereto and except for the omission of
notes from interim financial statements), and fairly present the financial
position of Lafayette as of the respective dates set forth therein, and the
related statements of operations, changes in shareholders' equity and cash
flows fairly present the results of operations, changes in stockholders'
equity and cash flows of Lafayette for the respective fiscal periods set
forth therein.
(b) The books and records of Lafayette and its Subsidiaries are
being maintained in material compliance with applicable legal and
accounting requirements, and reflect only actual transactions.
(c) Except as and to the extent reflected, disclosed or reserved
against in Lafayette Financial Statements (including the notes thereto) or
as specified in any of the Lafayette Disclosure Schedules, as of September
30, 1995, neither Lafayette nor any of its Subsidiaries had any
liabilities, whether absolute, accrued, contingent or otherwise, material
to the business, operations, assets or financial condition of Lafayette and
its Subsidiaries taken as a whole which were required by GAAP (consistently
applied) to be disclosed in Lafayette's consolidated statement of condition
or the notes thereto as of September 30, 1995. Since September 30, 1995,
Lafayette has not incurred any liabilities except in the ordinary course of
business and consistent with prudent banking practice, except as related to
the transactions contemplated by this Agreement or as set forth in the
Lafayette Disclosure Schedule.
3.5. BROKER'S AND OTHER FEES. Except for Belle Plaine Partners,
LLC ("Belle Plaine") or as set forth in the Lafayette Disclosure Schedule,
neither Lafayette (or its Subsidiaries) nor any of its directors or
officers has employed any broker or finder or incurred any liability for
any broker's or finder's fees or commissions in connection with any of the
transactions contemplated by this Agreement. The agreements with Belle
Plaine are set forth in the Lafayette Disclosure Schedule. Except as set
forth in the Lafayette Disclosure Schedule, there are no fees (other than
time charges billed at usual and customary rates) payable to any
consultants, including lawyers and accountants, in connection with this
transaction or which would be triggered by consummation of this transaction
or the termination of the services of such consultants by Lafayette.
3.6. ABSENCE OF CERTAIN CHANGES OR EVENTS.
(a) Except as set forth in the Lafayette Disclosure Schedule,
there has not been any material adverse change in the business, operations,
assets or financial condition of Lafayette or its Subsidiaries since
September 30, 1995 and to the best of Lafayette's knowledge, no facts or
condition exists which Lafayette believes will cause such a material
adverse change in the future.
(b) Except as set forth in the Lafayette Disclosure Schedule,
(i) each of Lafayette and its Subsidiaries has not taken or permitted any
of the actions set forth in Section 5.2 hereof between September 30, 1995
and the date hereof, and (ii) except for execution of this Agreement, the
HUBCO Stock Option, and the agreements described in Section 3.5, each of
Lafayette and its Subsidiaries has conducted its business only in the
ordinary course, consistent with past practice since September 30, 1995.
3.7. LEGAL PROCEEDINGS. Except as disclosed in the Lafayette
Disclosure Schedule, and except for ordinary routine litigation incidental
to the business of Lafayette, each of Lafayette and its Subsidiaries is not
a party to any, and there are no pending or, to the best of Lafayette's
knowledge, threatened legal, administrative, arbitral or other proceedings,
claims, actions or governmental investigations of any nature against
Lafayette or its Subsidiaries which, if decided adversely to Lafayette or
its Subsidiaries, are reasonably likely to have a material adverse effect
on the business, operations, assets or financial condition of Lafayette and
its Subsidiaries taken as a whole. Except as disclosed in the Lafayette
Disclosure Schedule, neither Lafayette or its Subsidiaries is a party to
any order, judgment or decree entered in any lawsuit or proceeding.
3.8. TAXES AND TAX RETURNS.
(a) Each of Lafayette and its Subsidiaries has duly filed (and
until the Effective Time will so file) all returns, declarations, reports,
information returns and statements ("Returns") required to be filed by it
in respect of any federal, state and local taxes (including withholding
taxes, penalties or other payments required) and has duly paid (and until
the Effective Time will so pay) all such taxes due and payable, other than
taxes or other charges which are being contested in good faith (and
disclosed to HUBCO in writing) or against which reserves have been
established. Lafayette has established (and until the Effective Time will
establish) on its consolidated books and records reserves that are adequate
for the payment of all federal, state and local taxes not yet due and
payable, but are incurred in respect of Lafayette and its Subsidiaries
through such date. The Lafayette Disclosure Schedule identifies the
federal income tax returns of Lafayette which have been examined by the
Internal Revenue Service (the "IRS") within the past six years. Except as
set forth in the Lafayette Disclosure Schedule, no deficiencies were
asserted as a result of such examinations which have not been resolved and
paid in full. The Lafayette Disclosure Schedule identifies the applicable
state income tax returns of Lafayette which have been examined by the
applicable authorities within the past six years. No deficiencies were
asserted as a result of such examinations which have not been resolved and
paid in full. To the best knowledge of Lafayette, there are no audits or
other administrative or court proceedings presently pending nor any other
disputes pending with respect to, or claims asserted for, taxes or
assessments upon Lafayette or its Subsidiaries, nor, except as set forth in
the Lafayette Disclosure Schedule, has Lafayette or its Subsidiaries given
any currently outstanding waivers or comparable consents regarding the
application of the statute of limitations with respect to any taxes or
Returns.
(b) Neither Lafayette nor its Subsidiaries (i) except as set
forth in the Lafayette Disclosure Schedule, has requested any extension of
time within which to file any Return which Return has not since been filed,
(ii) is a party to any agreement providing for the allocation or sharing of
taxes, (iii) is required to include in income any adjustment pursuant to
Section 481(a) of the Internal Revenue Code of 1986, as amended (the
"Code"), by reason of a voluntary change in accounting method initiated by
Lafayette (nor does Lafayette have any knowledge that the IRS has proposed
any such adjustment or change of accounting method) or (iv) has filed a
consent pursuant to Section 341(f) of the Code or agreed to have Section
341(f)(2) of the Code apply.
(c) From January 1, 1992 until the date hereof, to the best of
Lafayette's knowledge, there has been no "ownership change" of Lafayette as
defined in Section 382(g) of the Code.
3.9. DIRECTOR, OFFICER AND EMPLOYEE BENEFIT PLANS.
(a) Except for plans disclosed in any of the Lafayette
Disclosure Schedules and Stock Option Plans referenced elsewhere herein,
neither Lafayette or its Subsidiaries maintains or contributes to any
"employee pension benefit plan" (the "Lafayette Pension Plans"), within the
meaning of Section 3(2)(A) of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), "employee welfare benefit plan" within the
meaning of Section 3(1) of ERISA (the "Lafayette Welfare Plans"), stock
option plan, stock purchase plan (other than the Dividend Reinvestment and
Stock Purchase Plan referenced in the Lafayette Disclosure Schedule for
Section 3.6 hereof), deferred compensation plan, severance plan, bonus
plan, employment agreement or other similar plan, program or arrangement.
Lafayette has not, since September 2, 1974, contributed to any
"Multiemployer Plan", as such term is defined in Section 3(37) of ERISA.
(b) Except as disclosed in the Lafayette Disclosure Schedule,
Lafayette has delivered to HUBCO in Lafayette's Disclosure Schedule a
complete and accurate copy of each of the following with respect to each of
the Lafayette Pension Plans and Lafayette Welfare Plans, if any: (1) plan
document, summary plan description, and summary of material modifications
(if not available, a detailed description of the foregoing); (ii) trust
agreement or insurance contract, if any; (iii) most recent IRS
determination letter, if any; (iv) most recent actuarial report, if any;
and (v) most recent annual report on Form 5500.
(c) The present value of all accrued benefits, both vested and
non-vested, under each of the Lafayette Pension Plans subject to Title IV
of ERISA, based upon the actuarial assumptions used for funding purposes in
the most recent actuarial valuation prepared by such Lafayette Pension
Plan's actuary, did not exceed the then current value of the assets of such
plans allocable to such accrued benefits. The actuarial assumptions then
utilized for such plans were reasonable and appropriate as of the last
valuation date and reflect then current market conditions.
(d) During the last six years, the Pension Benefit Guaranty
Corporation ("PBGC") has not asserted any claim for liability against
Lafayette or any of its Subsidiaries which has not been paid in full.
(e) All premiums (and interest charges and penalties for late
payment, if applicable) due to the PBGC with respect to each Lafayette
Pension Plan have been paid. All contributions required to be made to each
Lafayette Pension Plan under the terms thereof, ERISA or other applicable
law have been timely made, and all amounts properly accrued to date as
liabilities of Lafayette which have not been paid have been properly
recorded on the books of Lafayette.
(f) Except as disclosed in the Lafayette Disclosure Schedule,
each of the Lafayette Pension Plans, Lafayette Welfare Plans and each other
employee benefit plan and arrangement identified on the Lafayette
Disclosure Schedule has, since January 1, 1990, been operated in compliance
in all material respects with any applicable provisions of ERISA, the Code,
all regulations, rulings and announcements promulgated or issued
thereunder, and all other applicable governmental laws and regulations.
Furthermore, if Lafayette maintains any Lafayette Pension Plan, Lafayette
has received a favorable determination letter from the IRS which takes into
account the Tax Reform Act of 1986 and, except as set forth in the
Lafayette Disclosure Schedule, subsequent legislation and, except as
disclosed in the Lafayette Disclosure Schedule, Lafayette is not aware of
any fact or circumstance which would disqualify any plan.
(g) To the best knowledge of Lafayette, no non-exempt prohibited
transaction, within the meaning of Section 4975 of the Code or Section 406
of ERISA, has occurred with respect to any of Lafayette Welfare Plans or
Lafayette Pension Plans.
(h) No Lafayette Pension Plan or any trust created thereunder
has been terminated, nor have there been any "reportable events" (notice of
which has not been waived by the PBGC), within the meaning of Section
4034(b) of ERISA, with respect to any of the Lafayette Pension Plans.
(i) No "accumulated funding deficiency", within the meaning of
Section 412 of the Code, has been incurred with respect to any of the
Lafayette Pension Plans.
(j) There are no material pending or, to the best knowledge of
Lafayette, material threatened claims (other than routine claims for
benefits) by, on behalf of or against any of the Lafayette Pension Plans or
Lafayette Welfare Plans, any trusts created thereunder or any other plan or
arrangement identified in the Lafayette Disclosure Schedule.
(k) Except as disclosed in the Lafayette Disclosure Schedule and
in the employment agreement with Xxxxxx Xxxxxxxxxx, no Lafayette Pension
Plan or Lafayette Welfare Plan provides medical or death benefits (whether
or not insured) beyond an employee's retirement or other termination of
service, other than (i) coverage mandated by law, or (ii) death benefits
under any Lafayette Pension Plan.
(l) Except with respect to customary health, life and disability
benefits or as disclosed in the Lafayette Disclosure Schedule, there are no
unfunded benefit obligations which are not accounted for by reserves shown
on the Lafayette Financial Statements and established under GAAP or
otherwise noted on such Financial Statements.
(m) With respect to each Lafayette Pension Plan and Lafayette
Welfare Plan that is funded wholly or partially through an insurance
policy, there will be no liability of Lafayette or its Subsidiaries as of
the Effective Time under any such insurance policy or ancillary agreement
with respect to such insurance policy in the nature of a retroactive rate
adjustment, loss sharing arrangement or other actual or contingent
liability arising wholly or partially out of events occurring prior to the
Effective Time.
(n) Except for benefits due pursuant to the employment
agreements included within the Lafayette Disclosure Schedule and as set
forth in the Lafayette Disclosure Schedule or as agreed to by HUBCO in
writing either pursuant to this Agreement or otherwise, the consummation of
the transactions contemplated by this Agreement will not (i) entitle any
current or former employee of Lafayette or its Subsidiaries to severance
pay, unemployment compensation or any similar payment or (ii) accelerate
the time of payment, vesting, or increase the amount, of any compensation
or benefits due to any current employee or former employee under any
Lafayette Pension Plan or Lafayette Welfare Plan.
(o) Except for the Lafayette Pension Plans and Lafayette Welfare
Plans, and except as set forth on the Lafayette Disclosure Schedule,
Lafayette has no deferred compensation agreements, understandings or
obligations for payments or benefits to any current or former director,
officer or employee of Lafayette or any Subsidiary or any predecessor. The
Lafayette Disclosure Schedule sets forth (i) true and complete copies of
the agreements, understandings or obligations listed with respect to each
such current or former director, officer or employee, and (ii) the most
recent actuarial or other calculation of the present value of such payments
or benefits.
(p) Except as set forth on the Lafayette Disclosure Schedule,
Lafayette maintains or otherwise pays for no life insurance policies (other
than group term life policies on employees) with respect to any director,
officer or employee. The Lafayette Disclosure Schedule lists each such
insurance policy and any agreement with a party other than the insurer with
respect to the payment, funding or assignment of such policy. Except as
set forth in the Lafayette Disclosure Schedule, to the best of Lafayette's
knowledge, neither Lafayette nor any Lafayette Pension Plan or Lafayette
Welfare Plan own any individual or group insurance policies issued by an
insurer which has been found to be insolvent or is in rehabilitation
pursuant to a state proceeding.
3.10. REPORTS.
(a) The Lafayette Disclosure Schedule lists, and Lafayette has
previously delivered to HUBCO a complete copy of, each communication (other
than general advertising materials and press releases) mailed by Lafayette
to its stockholders as a class since November 1, 1993, and each such
communication, as of its date, complied in all material respects with all
applicable statutes, rules and regulations and did not contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements made
therein, in light of the circumstances under which they were made, not
misleading; provided that information as of a later date shall be deemed to
modify information as of an earlier date.
(b) Lafayette has, since November 1, 1993, duly filed with the
FDIC in form which was correct in all material respects the monthly,
quarterly and annual financial reports required to be filed under
applicable laws and regulations (provided that information as of a later
date shall be deemed to modify information as of an earlier date), and,
subject to permission from such regulatory authorities, Lafayette promptly
will deliver or make available to HUBCO accurate and complete copies of
such reports. The Lafayette Disclosure Schedule lists all examinations of
Lafayette conducted by either the Department or the FDIC since January 1,
1993 and the dates of any responses thereto submitted by Lafayette.
3.11. LAFAYETTE INFORMATION. The information relating to
Lafayette or its Subsidiaries to be contained in the Proxy
Statement/Prospectus (as defined in Section 5.6(a) hereof) to be delivered
to stockholders of Lafayette in connection with the solicitation of their
approval of the Merger and to be delivered to the stockholders of HUBCO in
connection with their approval of the issuance of HUBCO Common Stock in
connection with the Merger, as of the date the Proxy Statement/Prospectus
is mailed to stockholders of Lafayette and HUBCO, and up to and including
the date of the meeting of stockholders to which such Proxy
Statement/Prospectus relates, will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
3.12. COMPLIANCE WITH APPLICABLE LAW.
(a) Since February 28, 1994, Lafayette has filed all reports
that it was required to file with the FDIC under the Securities Exchange
Act of 1934, as amended (the "1934 Act"), all of which complied in all
material respects with all applicable requirements of the 1934 Act and the
rules and regulations adopted thereunder. As of their respective dates,
each such report and each registration statement, proxy statement, form or
other document filed by Lafayette with the FDIC, including without
limitation, any financial statements or schedules included therein, did not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements made
therein, in light of the circumstances under which they were made, not
misleading, provided that information as of a later date shall be deemed to
modify information as of an earlier date. Since February 28, 1994,
Lafayette and its Subsidiaries have duly filed all material forms, reports
and documents which they were required to file with each other agency
charged with regulating any aspect of their business.
(b) Except as set forth in Lafayette Disclosure Schedule for
Section 3.7 hereof, each of Lafayette and its Subsidiaries holds all
material licenses, franchises, permits and authorizations necessary for the
lawful conduct of their business and since January 1, 1993 has complied
with and is not in default in any respect under any applicable law,
statute, order, rule, regulation, policy and/or guideline of any federal,
state or local governmental authority relating to Lafayette (including
without limitation consumer, community and fair lending laws) (other than
where such default or noncompliance will not result in a material adverse
effect on the business, operations, assets or financial condition of
Lafayette) and Lafayette has not received notice of violation of, and does
not know of any violations of, any of the above.
3.13. CERTAIN CONTRACTS.
(a) Except under plans referenced in Section 3.2 or 3.9 hereof,
contracts described in Section 3.5 hereof, arrangements described in
Section 5.12 hereof and plans referenced in the Lafayette Disclosure
Schedule, (i) Lafayette and its Subsidiaries is not a party to or bound by
any written contract or understanding (whether written or oral) with
respect to the employment of any officers, employees, directors or
consultants, and (ii) the consummation of the transactions contemplated by
this Agreement will not (either alone or upon the occurrence of any
additional acts or events) result in any payment (whether of severance pay
or otherwise) becoming due from Lafayette and its Subsidiaries to any
officer, employee, director or consultant thereof. The Lafayette
Disclosure Schedule (either in reference to this Section 3.13 or in
reference to Sections 3.2 or 3.9 hereof) sets forth true and correct copies
of any severance or employment agreements with officers, directors,
employees, agents or consultants to which Lafayette and its Subsidiaries is
a party.
(b) Except as disclosed in the Lafayette Disclosure Schedule and
except for loan agreements made and loan commitments issued in the ordinary
course of business, (i) as of the date of this Agreement, Lafayette and its
Subsidiaries is not a party to or bound by any commitment, agreement or
other instrument which is material to the business, operations, assets or
financial condition of Lafayette and its Subsidiaries as a whole (but in no
event shall a contract for less than $100,000 a year be deemed material
under this paragraph), (ii) no commitment, agreement or other instrument to
which Lafayette and its Subsidiaries is a party or by which it is bound
limits the freedom of Lafayette or its Subsidiaries to compete in any line
of business or with any person, and (iii) Lafayette is not a party to any
collective bargaining agreement.
(c) Neither Lafayette (including its Subsidiaries) nor, to the
best knowledge of Lafayette, any other party thereto, is in default in any
material respect under any material lease, contract, mortgage, promissory
note, deed of trust, loan or other commitment (except those under which
Lafayette is or will be the creditor) or arrangement, except for defaults
which individually or in the aggregate would not have a material adverse
effect on the business, operations, assets or financial condition of
Lafayette.
3.14. PROPERTIES AND INSURANCE.
(a) Lafayette and its Subsidiaries has good and, as to owned
real property, marketable title to all material assets and properties,
whether real or personal, tangible or intangible, reflected in Lafayette's
statement of condition as of September 30, 1995, or owned and acquired
subsequent thereto (except to the extent that such assets and properties
have been disposed of for fair value in the ordinary course of business
since September 30, 1995), subject to no encumbrances, liens, mortgages,
security interests or pledges, except (i) those items that secure
liabilities that are reflected in said statement of condition or the notes
thereto or that secure liabilities incurred in the ordinary course of
business after the date of such statement of condition, (ii) statutory
liens for amounts not yet delinquent or which are being contested in good
faith, (iii) such encumbrances, liens, mortgages, security interests,
pledges and title imperfections that are not in the aggregate material to
the business, operations, assets, and financial condition of Lafayette and
(iv) with respect to owned real property, title imperfections noted in
title reports delivered to HUBCO promptly after the date hereof. Except as
affected by the transactions contemplated hereby, Lafayette and its
Subsidiaries as lessee has the right under valid and subsisting leases to
occupy, use, possess and control all real property leased by Lafayette in
all material respects as presently occupied, used, possessed and controlled
by Lafayette and its Subsidiaries.
(b) The business operations and all insurable properties and
assets of Lafayette and its Subsidiaries are insured for its benefit
against all risks which, in the reasonable judgment of the management of
Lafayette, should be insured against, in each case under policies or bonds
issued by insurers of recognized responsibility, in such amounts with such
deductibles and against such risks and losses as are in the opinion of the
management of Lafayette adequate for the business engaged in by Lafayette.
As of the date hereof, Lafayette has not received any notice of
cancellation or notice of a material amendment of any such insurance policy
or bond and, to the best of its knowledge, is not in default under any such
policy or bond, no coverage thereunder is being disputed and all material
claims thereunder have been filed in a timely fashion. The Lafayette
Disclosure Schedule sets forth in summary form a list of all insurance
policies of Lafayette and its Subsidiaries.
3.15. MINUTE BOOKS. The minute books of Lafayette and its
Subsidiaries contain accurate records of all meetings and other corporate
action held of the stockholders and Board of Directors (including
committees of the Board of Directors) held since January 1, 1990, except
where the failure to so maintain such records would not have a material
adverse effect on the business, operations, assets or financial condition
of Lafayette and its Subsidiaries taken as a whole.
3.16. ENVIRONMENTAL MATTERS.
(a) Except as disclosed in the Lafayette Disclosure Schedule,
Lafayette and its Subsidiaries have not received any written notice,
citation, claim, assessment, proposed assessment or demand for abatement
alleging that Lafayette or its Subsidiaries (either directly or, as a
trustee or fiduciary, or as a successor-in-interest in connection with the
enforcement of remedies to realize the value of properties serving as
collateral for outstanding loans) is responsible for the correction or
cleanup of any condition resulting from the violation of any law, ordinance
or other governmental regulation regarding environmental matters which
correction or cleanup would be material to the business, operations, assets
or financial condition of Lafayette. Except as disclosed in the Lafayette
Disclosure Schedule, Lafayette has no knowledge that any toxic or hazardous
substances or materials have been emitted, generated, disposed of or stored
on any Properties (as hereinafter defined) in any manner that violates any
presently existing federal, state or local law or regulation governing or
pertaining to any toxic or hazardous substances and materials, the
violation of which would have a material adverse effect on the business,
operations, or assets or financial condition of Lafayette.
(b) Lafayette has no knowledge that any of the Properties has
been operated in any manner in the three years prior to the date of this
Agreement that violated any applicable federal, state or local law or
regulation governing or pertaining to such substances and materials, the
violation of which would have a material adverse effect on the business,
operations, assets or financial condition of Lafayette and its Subsidiaries
taken as a whole.
(c) Except as set forth on the Lafayette Disclosure Schedule,
(i) Lafayette has no knowledge that any of the real property owned or
leased by Lafayette or its Subsidiaries, as OREO or otherwise, or owned or
controlled by Lafayette or its Subsidiaries as a trustee or fiduciary (the
"Properties"), meets the statutory criteria of an "Establishment" as that
term is defined pursuant to the Connecticut Transfer of Establishments Act,
P.A. 95-183 (the "Connecticut Transfer Act"), and (ii) to the best of
Lafayette's knowledge, Lafayette, its Subsidiaries and any and all of their
tenants or subtenants have all necessary permits and have filed all
necessary registrations material to permit the operation of the Properties
in the manner in which the operations are currently conducted under all
applicable federal, state or local environmental laws, excepting only those
permits and registrations the absence of which would not have a material
adverse effect upon the operations requiring the permit or registration.
(d) Except as set forth in the Lafayette Disclosure Schedule, to
the knowledge of Lafayette, there are no underground storage tanks on, in
or under any of the Properties and no underground storage tanks have been
closed or removed from any of the Properties while the property was owned,
operated or controlled by Lafayette or its Subsidiaries.
3.17. RESERVES. As of September 30, 1995, the allowance for
possible loan losses in the Lafayette Financial Statements was adequate
based upon all factors required to be considered by Lafayette at that time
in determining the amount of such allowance. Except as set forth in the
Lafayette Disclosure Schedule, the methodology used to compute the
allowance for possible loan losses complies in all material respects with
all applicable policies of the FDIC and the Department. As of September
30, 1995, the valuation allowance for OREO properties in the Lafayette
Financial Statements was adequate based upon all factors required to be
considered by Lafayette at that time in determining the amount of such
allowance.
3.18. NO PARACHUTE PAYMENTS. Except as set forth in the
Lafayette Disclosure Schedule and except for benefits resulting from the
acceleration of Stock Options, no officer, director, employee or agent (or
former officer, director, employee or agent) of Lafayette is entitled now,
or will or may be entitled to as a consequence of this Agreement or the
Merger, to any payment or benefit from Lafayette, HUBCO or the Bank which
if paid or provided would constitute an "excess parachute payment", as
defined in Section 280G of the Code or regulations promulgated thereunder.
3.19. AGREEMENTS WITH BANK REGULATORS. Except as set forth in
Lafayette Disclosure Schedule, neither Lafayette or any of its Subsidiaries
is a party to any commitment letter, board resolution submitted to a
regulatory authority or similar undertaking to, or is subject to any order
or directive by, or is a recipient of any extraordinary supervisory letter
from, any court, governmental authority or other regulatory or
administrative agency or commission, domestic or foreign ("Governmental
Entity") which restricts materially the conduct of its business, or in any
manner relates to its capital adequacy, its credit or reserve policies or
its management, nor has Lafayette been advised by any Governmental Entity
that it is contemplating issuing or requesting (or is considering the
appropriateness of issuing or requesting) any such order, decree,
agreement, memorandum of understanding, extraordinary supervisory letter,
commitment letter or similar submission. Lafayette is not required by
Section 32 of the Federal Deposit Insurance Act to give prior notice to a
Federal banking agency of the proposed addition of an individual to its
board of directors or the employment of an individual as a senior executive
officer.
3.20. DISCLOSURE. No representation or warranty contained in
Article III of this Agreement contains any untrue statement of a material
fact or omits to state a material fact necessary to make the statements
herein not misleading.
ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF HUBCO
References herein to the "HUBCO Disclosure Schedule" shall mean
all of the disclosure schedules required by this Article IV, dated as of
the date hereof and referenced to the specific sections and subsections of
Article IV of this Agreement, which have been delivered on the date hereof
by HUBCO to Lafayette. HUBCO hereby represents and warrants to Lafayette
as follows:
4.1. CORPORATE ORGANIZATION.
(a) HUBCO is a corporation duly organized and validly existing
and in good standing under the laws of the State of New Jersey. HUBCO has
the corporate power and authority to own or lease all of its properties and
assets and to carry on its business as it is now being conducted, and is
duly licensed or qualified to do business and is in good standing in each
jurisdiction in which the nature of the business conducted by it or the
character or location of the properties and assets owned or leased by it
makes such licensing or qualification necessary, except where the failure
to be so licensed, qualified or in good standing would not have a material
adverse effect on the business, operations, assets or financial condition
of HUBCO or its subsidiaries (defined below), taken as a whole. HUBCO is
registered as a bank holding company under the Bank Holding Company Act of
1956, as amended.
(b) Each of the Subsidiaries of HUBCO are listed in the HUBCO
Disclosure Schedule. The term "Subsidiary", when used with reference to
HUBCO, means any corporation, partnership, joint venture or other legal
entity in which HUBCO directly or indirectly, owns at least a 50 percent
stock or other equity interest or for which HUBCO, directly or indirectly,
acts as a general partner. Each Subsidiary of HUBCO is duly organized and
validly existing and in good standing under the laws of the jurisdiction of
its incorporation. The Bank is a state-chartered commercial bank whose
deposits are insured by the FDIC to the fullest extent permitted by law.
Each Subsidiary has the corporate power and authority to own or lease all
of its properties and assets and to carry on its business as it is now
being conducted and is duly licensed or qualified to do business and is in
good standing in each jurisdiction in which the nature of the business
conducted by it or the character or location of the properties and assets
owned or leased by it makes such licensing or qualification necessary,
except where the failure to be so licensed, qualified or in good standing
would not have a material adverse effect on the business, operations,
assets or financial condition of HUBCO and its subsidiaries, taken as a
whole. The HUBCO Disclosure Schedule sets forth true and complete copies
of the certificate of incorporation and by-laws of HUBCO as in effect on
the date hereof.
4.2. CAPITALIZATION. The authorized capital stock of HUBCO
consists solely of 25,000,000 shares of HUBCO Common Stock and 4,500,000
shares of preferred stock ("HUBCO Authorized Preferred Stock"). As of
January 15, 1996, there were 13,105,627 shares of HUBCO Common Stock issued
and outstanding, excluding 39,432 shares of treasury stock. Since such
date, and from time to time hereafter, HUBCO may sell or repurchase shares
of HUBCO Common Stock subject to the covenant in Section 5.18. There are
no shares of HUBCO Authorized Preferred Stock outstanding. Except for
shares issuable under the HUBCO 1995 Stock Option Plan (the "HUBCO Stock
Option Plan"), there are no shares of HUBCO Common Stock issuable upon the
exercise of outstanding stock options or otherwise. All issued and
outstanding shares of HUBCO Common Stock, and all issued and outstanding
shares of capital stock of HUBCO's Subsidiaries, have been duly authorized
and validly issued, are fully paid, nonassessable and free of preemptive
rights, and are free and clear of all liens, encumbrances, charges,
restrictions or rights of third parties. All of the outstanding shares of
capital stock of HUBCO's Subsidiaries are owned by HUBCO free and clear of
any liens, encumbrances, charges, restrictions or rights of third parties.
Except for the shares issuable under the HUBCO Stock Option Plan, neither
HUBCO nor HUBCO's Subsidiaries has granted or is bound by any outstanding
subscriptions, options, warrants, calls, commitments or agreements of any
character calling for the transfer, purchase or issuance of any shares of
capital stock of HUBCO or HUBCO's Subsidiaries or any securities
representing the right to purchase, subscribe or otherwise receive any
shares of such capital stock or any securities convertible into any such
shares, and there are no agreements or understandings with respect to
voting of any such shares. Neither HUBCO nor any of HUBCO's Subsidiaries
is, as of the date hereof, the owner of any shares of Lafayette Common
Stock.
4.3. AUTHORITY; NO VIOLATION.
(a) HUBCO has the full corporate power and authority to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby in accordance with the terms hereof. 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 HUBCO in
accordance with its certificate of incorporation and applicable laws and
regulations. Except for the approval of the issuance of the HUBCO Common
Stock pursuant to the Merger by the requisite vote of HUBCO's shareholders
and the creation of Merger Sub, no other corporate proceedings on the part
of HUBCO are necessary to consummate the transactions so contemplated.
This Agreement has been duly and validly executed and delivered by HUBCO
and constitutes the valid and binding obligations of HUBCO, enforceable
against HUBCO in accordance with its terms.
(b) Neither the execution or delivery of this Agreement by
HUBCO, nor the consummation by HUBCO of the transactions contemplated
hereby in accordance with the terms hereof or compliance by HUBCO with any
of the terms or provisions hereof will (i) violate any provision of the
Certificate of Incorporation or By-laws of HUBCO, (ii) assuming that the
consents and approvals set forth below are duly obtained, violate any
statute, code, ordinance, rule, regulation, judgment, order, writ, decree
or injunction applicable to HUBCO or any of its respective properties or
assets, or (iii) violate, conflict with, result in a breach of any
provision of, constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, result in the
termination of, accelerate the performance required by, or result in the
creation of any lien, security interest, charge or other encumbrance upon
any of the respective properties or assets of HUBCO 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
HUBCO is a party, or by which HUBCO or any of its properties or assets may
be bound or affected, except, with respect to (ii) and (iii) above, such as
individually or in the aggregate will not have a material adverse effect on
the business, operations, assets or financial condition of HUBCO and
HUBCO's Subsidiaries, taken as a whole, and which will not prevent or delay
the consummation of the transactions contemplated hereby. Except for
consents and approvals of or filings or registrations with or notices to
the Board of Governors of the Federal Reserve System ("FRB"), the
Commissioner, the Department, the Securities and Exchange Commission
("SEC"), state blue sky authorities or other applicable governmental
authorities, no consents or approvals of or filings or registrations with
or notices to any third party or any public body or authority are necessary
on behalf of HUBCO in connection with (x) the execution and delivery by
HUBCO of this Agreement, and (y) the consummation by HUBCO and Lafayette of
the Merger and the other transactions contemplated hereby except such as
are listed in the HUBCO Disclosure Schedule or in the aggregate will not
(if not obtained) have a material adverse effect on the business,
operations, assets or financial condition of HUBCO. To the best of HUBCO's
knowledge, no fact or condition exists which HUBCO has reason to believe
will prevent it from obtaining the aforementioned consents and approvals.
4.4. FINANCIAL STATEMENTS.
(a) The HUBCO Disclosure Schedule sets forth copies of the
consolidated statements of financial condition of HUBCO as of December 31,
1994 and 1993, the related consolidated statements of income, changes in
stockholders' equity and cash flows for the periods ended December 31, in
each of the three fiscal years 1992 through 1994, in each case accompanied
by the audit report of Xxxxxx Xxxxxxxx LLP, independent public accountants
with respect to HUBCO, and the unaudited consolidated statement of
condition of HUBCO as of September 30, 1995 and the related unaudited
consolidated statements of income and cash flows for the nine months ended
September 30, 1995 and 1994, as reported in HUBCO's Quarterly Report on
Form 10-Q, filed with the SEC under the 1934 Act (collectively, the "HUBCO
Financial Statements"). The HUBCO Financial Statements (including the
related notes) have been prepared in accordance with GAAP consistently
applied during the periods involved (except as may be indicated therein or
in the notes thereto), and fairly present the consolidated financial
position of HUBCO as of the respective dates set forth therein, and the
related consolidated statements of income, changes in stockholders' equity
and cash flows (including the related notes, where applicable) fairly
present the consolidated results of operations, changes in stockholders'
equity and cash flows of HUBCO for the respective fiscal periods set forth
therein.
(b) The books and records of HUBCO and the Bank are being
maintained in material compliance with applicable legal and accounting
requirements, and reflect only actual transactions.
(c) Except as and to the extent reflected, disclosed or reserved
against in the HUBCO Financial Statements (including the notes thereto), as
of September 30, 1995 neither HUBCO nor any of its subsidiaries had any
obligation or liability, whether absolute, accrued, contingent or
otherwise, material to the business, operations, assets or financial
condition of HUBCO or any of its Subsidiaries which were required by GAAP
(consistently applied) to be disclosed in HUBCO's consolidated statement of
condition as of September 30, 1995 or the notes thereto. Except for the
acquisition of Growth Financial Corp. and other proposed acquisitions by
HUBCO since September 30, 1995 reflected in any Form 8-K filed by HUBCO
with the SEC, neither HUBCO nor any of its Subsidiaries have incurred any
liabilities since September 30, 1995, except in the ordinary course of
business and consistent with prudent banking practice.
4.5. BROKERAGE FEES. Neither HUBCO nor any of its directors or
officers has employed any broker or finder or incurred any liability for
any broker's or finder's fees or commissions in connection with any of the
transactions contemplated by this Agreement.
4.6. ABSENCE OF CERTAIN CHANGES OR EVENTS. There has not been
any material adverse change in the business, operations, assets or
financial condition of HUBCO and HUBCO's Subsidiaries taken as a whole
since September 30, 1995 and to the best of HUBCO's knowledge, no facts or
condition exists which HUBCO believes will cause such a material adverse
change in the future.
4.7. LEGAL PROCEEDINGS. Except for ordinary routine litigation
incidental to the business of HUBCO or its Subsidiaries, neither HUBCO nor
any of its Subsidiaries is a party to any, and there are no pending or, to
the best of HUBCO's knowledge, threatened legal, administrative, arbitral
or other proceedings, claims, actions or governmental investigations of any
nature against HUBCO or any of its Subsidiaries which, if decided adversely
to HUBCO or its Subsidiaries, would have a material adverse effect on the
business, operations, assets or financial condition of HUBCO or its
Subsidiaries. Except as disclosed in the HUBCO Disclosure Schedule,
neither HUBCO nor HUBCO's Subsidiaries is a party to any order, judgment or
decree entered in any lawsuit or proceeding which is material to HUBCO or
its Subsidiaries.
4.8. COMPLIANCE WITH APPLICABLE LAW.
(a) Since January 1, 1993, HUBCO has filed all reports that it
was required to file with the SEC under the 1934 Act, all of which complied
in all material respects with all applicable requirements of the 1934 Act
and the rules and regulations adopted thereunder. As of their respective
dates, each such report and each registration statement, proxy statement,
form or other document filed by HUBCO with the SEC, including without
limitation, any financial statements or schedules included therein, did not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements made
therein, in light of the circumstances under which they were made, not
misleading, provided that information as of a later date shall be deemed to
modify information as of an earlier date. Since January 1, 1993, HUBCO and
the Bank have duly filed all material forms, reports and documents which
they were required to file with each agency charged with regulating any
aspect of their business.
(b) Except as set forth in the HUBCO Disclosure Schedule, each
of HUBCO and HUBCO's Subsidiaries holds all material licenses, franchises,
permits and authorizations necessary for the lawful conduct of its
business, and has complied with and is not in default in any respect under
any applicable law, statute, order, rule, regulation, policy and/or
guideline of any federal, state or local governmental authority relating to
HUBCO or HUBCO's Subsidiaries (including without limitation consumer,
community and fair lending laws) (other than where such default or
noncompliance will not result in a material adverse effect on the business,
operations, assets or financial condition of HUBCO and HUBCO's Subsidiaries
taken as a whole) and HUBCO has not received notice of violation of, and
does not know of any violations of, any of the above.
4.9. HUBCO INFORMATION. The information relating to HUBCO and
its Subsidiaries (including, without limitation, information regarding
other transactions which HUBCO is required to disclose), this Agreement and
the transactions contemplated hereby in the Registration Statement and
Proxy Statement/Prospectus (as defined in Section 5.6(a) hereof), as of the
date of the mailing of the Proxy Statement/Prospectus, and up to and
including the date of the meeting of stockholders of Lafayette and HUBCO to
which such Proxy Statement/Prospectus relates, will not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they are made, not misleading. The
Registration Statement shall comply as to form in all material respects
with the provisions of the Securities Act of 1933, as amended (the "1933
Act"), the 1934 Act and the rules and regulations promulgated thereunder.
4.10. FUNDING AND CAPITAL ADEQUACY. At the Effective Time,
after giving pro forma effect to the Merger and any other acquisition which
HUBCO or its Subsidiaries have agreed to consummate, HUBCO will have
sufficient capital to satisfy all applicable regulatory capital
requirements.
4.11. HUBCO COMMON STOCK. At the Effective Time, the HUBCO
Common Stock issued hereunder will be duly authorized and validly issued,
fully paid, nonassessable, free of preemptive rights and free and clear of
all liens, encumbrances or restrictions created by or through HUBCO, with
no personal liability attaching to the ownership thereof. The HUBCO Common
Stock to be issued pursuant to the Merger (including the shares issued
pursuant to Section 2.6 and shares issued upon the exercise of HUBCO
Warrants) will be registered under the 1933 Act and issued in accordance
with all applicable state and federal laws, rules and regulations.
4.12. TAXES AND TAX RETURNS.
(a) HUBCO and HUBCO's Subsidiaries have duly filed all Returns
required to be filed by them in respect of any federal, state and local
taxes (including withholding taxes, penalties or other payments required)
and have duly paid all such taxes due and payable, other than taxes or
other charges which are being contested in good faith (and disclosed to
Lafayette in writing). HUBCO and HUBCO's Subsidiaries have established on
their books and records reserves that are adequate for the payment of all
federal, state and local taxes not yet due and payable, but are incurred in
respect of HUBCO or the Bank through such date. The HUBCO Disclosure
Schedule identifies the federal income tax returns of HUBCO and HUBCO's
Subsidiaries which have been examined by the IRS within the past six years.
No deficiencies were asserted as a result of such examinations which have
not been resolved and paid in full. The HUBCO Disclosure Schedule
identifies the applicable state income tax returns of HUBCO and HUBCO's
Subsidiaries which have been examined by the applicable authorities. No
deficiencies were asserted as a result of such examinations which have not
been resolved and paid in full. To the best knowledge of HUBCO, there are
no audits or other administrative or court proceedings presently pending
nor any other disputes pending with respect to, or claims asserted for,
taxes or assessments upon HUBCO or HUBCO's Subsidiaries, nor has HUBCO or
HUBCO's Subsidiaries given any currently outstanding waivers or comparable
consents regarding the application of the statute of limitations with
respect to any taxes or Returns.
(b) Except as set forth in the HUBCO Disclosure Schedule,
neither HUBCO nor any Subsidiary of HUBCO (i) has requested any extension
of time within which to file any Return which Return has not since been
filed, (ii) is a party to any agreement providing for the allocation or
sharing of taxes with third parties, (iii) is required to include in income
any adjustment pursuant to Section 481(a) of the Code, by reason of a
voluntary change in accounting method initiated by HUBCO (nor does HUBCO
have any knowledge that the IRS has proposed any such adjustment or change
of accounting method) or (iv) has filed a consent pursuant to Section
341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply.
4.13. EMPLOYEE BENEFIT PLANS.
(a) Except as disclosed in the HUBCO Disclosure Schedule and the
HUBCO Stock Option Plan, neither HUBCO or its Subsidiaries maintains or
contributes to any "employee pension benefit plan" (the "HUBCO Pension
Plans"), within the meaning of Section 3(2)(A) of ERISA, "employee welfare
benefit plan" within the meaning of Section 3(1) of ERISA (the "HUBCO
Welfare Plans"), stock option plan, stock purchase plan, deferred
compensation plan, severance plan, bonus plan, employment agreement or
other similar plan, program or arrangement. HUBCO has not, since September
2, 1974, contributed to any "Multiemployer Plan", as such term is defined
in Section 3(37) of ERISA.
(b) The present value of all accrued benefits, both vested and
non-vested, under each of HUBCO's Pension Plans subject to Title IV of
ERISA, based upon the actuarial assumptions used for funding purposes in
the most recent actuarial valuation prepared by such HUBCO Pension Plan's
actuary, did not exceed the then current value of the assets of such plans
allocable to such accrued benefits. The actuarial assumptions then
utilized for such plans were reasonable and appropriate as of the last
valuation date and reflect then current market conditions.
(c) During the last six years, the PBGC has not asserted any
claim for liability against HUBCO or any of its Subsidiaries which has not
been paid in full.
(d) All premiums (and interest charges and penalties for late
payment, if applicable) due to the PBGC with respect to each HUBCO Pension
Plan have been paid. All contributions required to be made to each HUBCO
Pension Plan under the terms thereof, ERISA or other applicable law have
been timely made, and all amounts properly accrued to date as liabilities
of HUBCO which have not been paid have been properly recorded on the books
of HUBCO.
(e) Except as disclosed in the HUBCO Disclosure Schedule, each
of the HUBCO Pension Plans, HUBCO Welfare Plans and each other employee
benefit plan and arrangement identified on the HUBCO Disclosure Schedule
has, since January 1, 1990, been operated in compliance in all material
respects with any applicable provisions of ERISA, the Code, all
regulations, rulings and announcements promulgated or issued thereunder,
and all other applicable governmental laws and regulations. Furthermore,
if HUBCO maintains any HUBCO Pension Plan, HUBCO has received a favorable
determination letter from the IRS which takes into account the Tax Reform
Act of 1986 and subsequent legislation and, except as disclosed in the
HUBCO Disclosure Schedule, HUBCO is not aware of any fact or circumstance
which would disqualify any plan.
(f) To the best knowledge of HUBCO, no non-exempt prohibited
transaction, within the meaning of Section 4975 of the Code or Section 406
of ERISA, has occurred with respect to any of the HUBCO Welfare Plans or
HUBCO Pension Plans.
(g) No HUBCO Pension Plan or any trust created thereunder has
been terminated, nor have there been any "reportable events" (notice of
which has not been waived by the PBGC), within the meaning of Section
4034(b) of ERISA, with respect to any of the HUBCO Pension Plans.
(h) No "accumulated funding deficiency", within the meaning of
Section 412 of the Code, has been incurred with respect to any of the HUBCO
Pension Plans.
(i) There are no material pending or, to the best knowledge of
HUBCO, material threatened claims (other than routine claims for benefits)
by, on behalf of, or against any of the HUBCO Pension Plans or HUBCO
Welfare Plans, any trusts created thereunder or any other plan or
arrangement identified in the HUBCO Disclosure Schedule.
(j) Except with respect to customary health, life and disability
benefits or as disclosed in the HUBCO Disclosure Schedule, there are no
unfunded benefit obligations which are not accounted for by reserves shown
on the HUBCO Financial Statements and established under GAAP or otherwise
noted on such Financial Statements.
(k) With respect to each HUBCO Pension Plan and HUBCO Welfare
Plan that is funded wholly or partially through an insurance policy, there
will be no liability of HUBCO or its Subsidiaries as of the Effective Time
under any such insurance policy or ancillary agreement with respect to such
insurance policy in the nature of a retroactive rate adjustment, loss
sharing arrangement or other actual or contingent liability arising wholly
or partially out of events occurring prior to the Effective Time.
4.14. CONTRACTS. Except as disclosed in the HUBCO Disclosure
Schedule, neither HUBCO nor its Subsidiaries, or to the best knowledge of
HUBCO, any party thereto, is in default in any material respect under any
material lease, contract, mortgage, promissory note, deed of trust, loan or
other commitment (except those under which the Bank is or will be the
creditor) or arrangement, except for defaults which individually or in the
aggregate would not have a material adverse effect on the business,
operations, assets or financial condition of HUBCO and the Bank, taken as a
whole.
4.15. PROPERTIES AND INSURANCE.
(a) HUBCO and the Bank have good and, as to owned real property,
marketable title to all material assets and properties, whether real or
personal, tangible or intangible, reflected in HUBCO's consolidated balance
sheet as of September 30, 1995, or owned and acquired subsequent thereto
(except to the extent that such assets and properties have been disposed of
for fair value in the ordinary course of business since September 30,
1995), subject to no encumbrances, liens, mortgages, security interests or
pledges, except (i) those items that secure liabilities that are reflected
in said balance sheet or the notes thereto or that secure liabilities
incurred in the ordinary course of business after the date of such balance
sheet, (ii) statutory liens for amounts not yet delinquent or which are
being contested in good faith, (iii) such encumbrances, liens, mortgages,
security interests, pledges and title imperfections that are not in the
aggregate material to the business, operations, assets, and financial
condition of HUBCO and the Bank taken as a whole and (iv) with respect to
owned real property, title imperfections noted in title reports. Except as
disclosed in the HUBCO Disclosure Schedule, HUBCO and the Bank as lessees
have the right under valid and subsisting leases to occupy, use, possess
and control all property leased by HUBCO or the Bank in all material
respects as presently occupied, used, possessed and controlled by HUBCO and
the Bank.
(b) The business operations and all insurable properties and
assets of HUBCO and the Bank are insured for their benefit against all
risks which, in the reasonable judgment of the management of HUBCO, should
be insured against, in each case under policies or bonds issued by insurers
of recognized responsibility, in such amounts with such deductibles and
against such risks and losses as are in the opinion of the management of
HUBCO adequate for the business engaged in by HUBCO and the Bank. As of
the date hereof, neither HUBCO nor the Bank has received any notice of
cancellation or notice of a material amendment of any such insurance policy
or bond or is in default under any such policy or bond, no coverage
thereunder is being disputed and all material claims thereunder have been
filed in a timely fashion.
4.16. ENVIRONMENTAL MATTERS. Except as disclosed in the HUBCO
Disclosure Schedule, neither HUBCO nor the Bank has received any written
notice, citation, claim, assessment, proposed assessment or demand for
abatement alleging that HUBCO, the Bank or any other Subsidiary of HUBCO
(either directly, or as a trustee or fiduciary, or as a successor-in-
interest in connection with the enforcement of remedies to realize the
value of properties serving as collateral for outstanding loans) is
responsible for the correction or cleanup of any condition resulting from
the violation of any law, ordinance or other governmental regulation
regarding environmental matters which correction or cleanup would be
material to the business, operations, assets or financial condition of
HUBCO and the Bank taken as a whole. Except as disclosed in the HUBCO
Disclosure Schedule, HUBCO has no knowledge that any toxic or hazardous
substances or materials have been emitted, generated, disposed of or stored
on any property currently owned or leased by HUBCO or the Bank or any other
Subsidiary in any manner that violates any presently existing federal,
state or local law or regulation governing or pertaining to such substances
and materials, the violation of which would have a material adverse effect
on the business, operations, assets or financial condition of HUBCO and the
Bank, taken as a whole.
4.17. RESERVES. As of September 30, 1995, the allowance for
possible loan losses in the HUBCO Financial Statements was adequate based
upon all factors required to be considered by HUBCO at that time in
determining the amount of such allowance. The methodology used to compute
the allowance for possible loan losses complies in all material respects
with all applicable FDIC and New Jersey Department of Banking policies. As
of September 30, 1995, the valuation allowance for OREO properties in the
HUBCO Financial Statements was adequate based upon all factors required to
be considered by HUBCO at that time in determining the amount of such
allowance.
4.18. AGREEMENTS WITH BANK REGULATORS. Neither HUBCO nor the
Bank is a party to any agreement or memorandum of understanding with, or a
party to any commitment letter, board resolution submitted to a regulatory
authority or similar undertaking to, or is subject to any order or
directive by, or is a recipient of any extraordinary supervisory letter
from, any Government Entity which restricts materially the conduct of its
business, or in any manner relates to its capital adequacy, its credit or
reserve policies or its management, except for those the existence of which
has been disclosed in writing to Lafayette by HUBCO prior to the date of
this Agreement, nor has HUBCO been advised by any Governmental Entity that
it is contemplating issuing or requesting (or is considering the
appropriateness of issuing or requesting) any such order, decree,
agreement, memorandum of understanding, extraordinary supervisory letter,
commitment letter or similar submission, except as disclosed in writing to
Lafayette by HUBCO prior to the date of this Agreement. Neither HUBCO nor
the Bank is required by Section 32 of the Federal Deposit Insurance Act to
give prior notice to a Federal banking agency of the proposed addition of
an individual to its board of directors or the employment of an individual
as a senior executive officer, except as disclosed in writing to Lafayette
by HUBCO prior to the date of this Agreement.
4.19. DISCLOSURES. No representation or warranty contained in
Article IV of this Agreement contains any untrue statement of a material
fact or omits to state a material fact necessary to make the statements
herein not misleading.
ARTICLE V - COVENANTS OF THE PARTIES
5.1. CONDUCT OF THE BUSINESS OF LAFAYETTE . During the period
from the date of this Agreement to the Effective Time, Lafayette shall
conduct its business only in the ordinary course and consistent with
prudent banking practice, except for transactions permitted hereunder or
with the prior written consent of HUBCO, which consent will not be
unreasonably withheld. Lafayette also shall use all reasonable efforts to
(i) preserve its business organization intact, (ii) keep available to
itself the present services of its employees and (iii) preserve for itself
and HUBCO the goodwill of its customers and others with whom business
relationships exist.
5.2. NEGATIVE COVENANTS.
(a) Lafayette agrees that from the date hereof to the Effective
Time, except as otherwise approved by HUBCO in writing or as permitted or
required by this Agreement, neither it or its Subsidiaries will:
(i) change any provision of its Certificate of
Incorporation or By-laws or any similar governing documents of
Lafayette;
(ii) change the number of shares of its authorized or
issued capital stock (other than upon the issuance of Lafayette Common
Stock upon exercise of Stock Options or Lafayette Warrants) or issue
or grant any subscription, option, warrant, call, commitment, right to
purchase or agreement of any character relating to the authorized or
issued capital stock of Lafayette or any securities convertible into
shares of such stock, or split, combine or reclassify any shares of
its capital stock, or declare, set aside or pay any dividend, or other
distribution (whether in cash, stock or property or any combination
thereof) in respect of its capital stock; PROVIDED, HOWEVER, from the
date hereof to the Effective Time, Lafayette may declare, set aside or
pay cash dividends per share of Lafayette Common Stock equivalent to
the cash dividends per share (I.E., at the same rate as that paid by
HUBCO multiplied by the Exchange Ratio) declared, set aside or paid by
HUBCO during such period, except that commencing with the June 1, 1996
dividend Lafayette shall pay such dividends on March 1, June 1,
September 1, and December 1 of each year and shall use the same record
date as that used by HUBCO; AND PROVIDED FURTHER that Lafayette may
continue to operate its Dividend Reinvestment and Stock Purchase Plan,
in the manner described in Lafayette's prospectus relating thereto,
only in respect of the dividend paid and cash contributions made
through February 15, 1996 and thereafter the Plan shall cease.
(iii) grant any severance or termination pay (other than
pursuant to policies or contracts of Lafayette in effect on the date
hereof or disclosed to HUBCO pursuant hereto) to, or enter into or
amend any employment or severance agreement with, any of its
directors, officers or employees, except as specified in Lafayette
Disclosure Schedule; adopt or approve any new employee benefit plan or
arrangement of any type or amend any existing employee benefit plan or
arrangement of any type; or award any increase in compensation or
benefits to its directors, officers or employees except with respect
to employee and officer increases in the ordinary course of business
and consistent with past practices and policies and the stay-on
bonuses set forth in the Lafayette Disclosure Schedule;
(iv) sell or dispose of any substantial amount of assets or
voluntarily incur any significant liabilities other than in the
ordinary course of business consistent with past practices and
policies or in response to substantial financial demands upon the
business of Lafayette;
(v) except as set forth in Lafayette Disclosure Schedule,
make any capital expenditures other than pursuant to binding
commitments existing on the date hereof, expenditures described in
business plans or budgets furnished to HUBCO prior to the date hereof
and other than expenditures necessary to maintain existing assets in
good repair;
(vi) except as set forth in Lafayette Disclosure Schedule,
file any applications or make any contract with respect to branching
or site location or relocation;
(vii) agree to acquire in any manner whatsoever (other than
to realize upon collateral for a defaulted loan) any business or
entity;
(viii) make any material change in its accounting methods
or practices, other than changes required in accordance with generally
accepted accounting principles;
(ix) take any action that would result in any of its
representations and warranties contained in Article III of this
Agreement not being true and correct in any material respect at the
Effective Time or that would cause any of its conditions to Closing
not to be satisfied; or
(x) agree to do any of the foregoing.
5.3. NO SOLICITATION. Lafayette shall not, directly or
indirectly, encourage or solicit or hold discussions or negotiations with,
or provide any information to, any person, entity or group (other than
HUBCO) concerning any merger or sale of shares of capital stock or sale of
substantial assets or liabilities not in the ordinary course of business,
or similar transactions involving Lafayette (an "Acquisition Transaction").
Notwithstanding the foregoing, Lafayette may enter into discussions or
negotiations or provide information in connection with an unsolicited
possible Acquisition Transaction if the Board of Directors of Lafayette,
after consulting with counsel, determines in the exercise of its fiduciary
responsibilities that such discussions or negotiations should be commenced
or such information should be furnished. Lafayette will promptly
communicate to HUBCO the material terms of any proposal, whether written or
oral, which it may receive in respect of any such Acquisition Transaction
and the fact that it is having discussions or negotiations with a third
party about an Acquisition Transaction.
5.4. CURRENT INFORMATION. During the period from the date of
this Agreement to the Effective Time, each of Lafayette and HUBCO will
cause one or more of its designated representatives to confer with
representatives of the other party on a monthly or more frequent basis
regarding its business, operations, properties, assets and financial
condition and matters relating to the completion of the transactions
contemplated herein. On a monthly basis, Lafayette agrees to provide
HUBCO, and HUBCO agrees to provide Lafayette, with internally prepared
profit and loss statements no later than 15 days after the close of each
calendar month. As soon as reasonably available, but in no event more than
45 days after the end of each fiscal quarter (other than the last fiscal
quarter of each fiscal year) ending on or after March 31, 1996, Lafayette
will deliver to HUBCO and HUBCO will deliver to Lafayette their respective
quarterly reports. As soon as reasonably available, but in no event more
than 90 days after the end of each calendar year, Lafayette will deliver to
HUBCO and HUBCO will deliver to Lafayette their respective Annual Reports.
5.5. ACCESS TO PROPERTIES AND RECORDS; CONFIDENTIALITY.
(a) Lafayette shall permit HUBCO and its representatives, and
HUBCO and the Bank shall permit Lafayette and its representatives,
reasonable access to their respective properties, and shall disclose and
make available to HUBCO and its representatives, or Lafayette and its
representatives, as the case may be, all books, papers and records relating
to its assets, stock ownership, properties, operations, obligations and
liabilities, including, but not limited to, all books of account (including
the general ledger), tax records, minute books of directors' and
stockholders' meetings, organizational documents, by-laws, material
contracts and agreements, filings with any regulatory authority,
accountants' work papers, litigation files, plans affecting employees, and
any other business activities or prospects in which HUBCO and its
representatives, or Lafayette and its representatives, may have a
reasonable interest. Neither party shall be required to provide access to
or to disclose information where such access or disclosure would violate or
prejudice the rights of any customer, would contravene any law, rule,
regulation, order or judgment or would waive any privilege. The parties
will use their best efforts to obtain waivers of any such restriction
(other than waivers of the attorney-client privilege) and in any event make
appropriate substitute disclosure arrangements under circumstances in which
the restrictions of the preceding sentence apply. Notwithstanding the
foregoing, Lafayette acknowledges that HUBCO may be involved in discussions
concerning other potential acquisitions and HUBCO shall not be obligated to
disclose such information to Lafayette except as provided in Section 5.8
hereof.
(b) All information furnished by the parties hereto previously
in connection with transactions contemplated by this Agreement or pursuant
hereto shall be used solely for the purpose of evaluating the Merger
contemplated hereby and shall be treated as the sole property of the party
delivering the information until consummation of the Merger contemplated
hereby and, if such Merger shall not occur, each party and each party's
advisors shall return to the other party all documents or other materials
containing, reflecting or referring to such information, will not retain
any copies of such information, shall use its best efforts to keep
confidential all such information, and shall not directly or indirectly use
such information for any competitive or other commercial purposes. In the
event that the Merger contemplated hereby does not occur, all documents,
notes and other writings prepared by a party hereto or its advisors based
on information furnished by the other party shall be promptly destroyed.
The obligation to keep such information confidential shall continue for
five years from the date the proposed Merger is abandoned but shall not
apply to (i) any information which (A) the party receiving the information
can establish by convincing evidence was already in its possession prior to
the disclosure thereof to it by the other party; (B) was then generally
known to the public; (C) became known to the public through no fault of the
party receiving such information; or (D) was disclosed to the party
receiving such information by a third party not bound by an obligation of
confidentiality; or (ii) disclosures pursuant to a legal requirement or in
accordance with an order of a court of competent jurisdiction.
5.6. REGULATORY MATTERS.
(a) For the purposes of holding the Stockholders' Meetings
referred to in Section 5.7 hereof and qualifying under applicable federal
and state securities laws the HUBCO Common Stock to be issued to Lafayette
stockholders in connection with the Merger, the parties hereto shall
cooperate in the preparation and filing by HUBCO or Lafayette (as
applicable) of a Registration Statement with the SEC and a proxy statement
with the FDIC which shall include an appropriate joint proxy statement and
prospectus satisfying all applicable requirements of applicable state and
federal laws, including the 1933 Act, the 1934 Act and applicable state
securities laws and the rules and regulations thereunder, and the rules and
regulations of the FDIC and SEC (such proxy statement and prospectus in the
form mailed by Lafayette and HUBCO to their respective shareholders
together with any and all amendments or supplements thereto, being herein
referred to as the "Proxy Statement/Prospectus" and the various documents
to be filed by HUBCO under the 1933 Act with the SEC to register the HUBCO
Common Stock for sale, including the Proxy Statement/Prospectus, are
referred to herein as the "Registration Statement").
(b) HUBCO shall furnish Lafayette with such information
concerning HUBCO and its Subsidiaries (including, without limitation,
information regarding other transactions which HUBCO is required to
disclose) as is necessary in order to cause the Proxy Statement/Prospectus,
insofar as it relates to such corporations, to comply with Section 5.6(a)
hereof. HUBCO agrees promptly to advise Lafayette if at any time prior to
HUBCO's or Lafayette's shareholders meeting referred to in Section 5.7
hereof, any information provided by HUBCO in the Proxy Statement/Prospectus
becomes incorrect or incomplete in any material respect and to provide
Lafayette with the information needed to correct such inaccuracy or
omission. HUBCO shall furnish Lafayette with such supplemental information
as may be necessary in order to cause the Proxy Statement/Prospectus,
insofar as it relates to HUBCO and its subsidiaries, to comply with Section
5.6(a) after the mailing thereof to Lafayette shareholders.
(c) Lafayette shall furnish HUBCO with such information
concerning Lafayette as is necessary in order to cause the Proxy
Statement/Prospectus, insofar as it relates to Lafayette, to comply with
Section 5.6(a) hereof. Lafayette agrees promptly to advise HUBCO if at any
time prior to HUBCO's or Lafayette's shareholders meeting referred to in
Section 5.6(a) hereof, any information provided by Lafayette in the Proxy
Statement/Prospectus becomes incorrect or incomplete in any material
respect and to provide HUBCO with the information needed to correct such
inaccuracy or omission. Lafayette shall furnish HUBCO with such
supplemental information as may be necessary in order to cause the Proxy
Statement/Prospectus, insofar as it relates to Lafayette, to comply with
Section 5.6(a) after the mailing thereof to Lafayette shareholders.
(d) HUBCO shall as promptly as practicable make such filings as
are necessary in connection with the offering of the HUBCO Common Stock
with applicable state securities agencies and shall use all reasonable
efforts to qualify the offering of such stock under applicable state
securities laws at the earliest practicable date. Lafayette shall promptly
furnish HUBCO with such information regarding Lafayette shareholders as
HUBCO requires to enable it to determine what filings are required
hereunder. Lafayette authorizes HUBCO to utilize in such filings the
information concerning Lafayette provided to HUBCO in connection with, or
contained in, the Proxy Statement/Prospectus. HUBCO shall furnish
Lafayette's counsel with copies of all such filings and keep Lafayette
advised of the status thereof. HUBCO shall as promptly as practicable file
the Registration Statement containing the Proxy Statement/Prospectus with
the SEC, Lafayette shall as promptly as practicable file the Proxy
Statement/Prospectus with the FDIC, and each of HUBCO and Lafayette shall
promptly notify the other of all communications, oral or written, with the
SEC and the FDIC concerning the Registration Statement and the Proxy
Statement/Prospectus.
(e) HUBCO shall cause the HUBCO Common Stock issuable pursuant
to the Merger (including, without limitation, shares issuable pursuant to
Section 2.6 and upon exercise of HUBCO Warrants) to be listed on the
National Association of Securities Dealers Automated Quotation ("NASDAQ")
System at the Effective Time.
(f) The parties hereto will cooperate with each other and use
their reasonable efforts to prepare all necessary documentation, to effect
all necessary filings and to obtain all necessary permits, consents,
approvals and authorizations of all third parties and governmental bodies
necessary to consummate the transactions contemplated by this Agreement as
soon as possible, including, without limitation, those required by the FRB,
the FDIC and the Department and those required to form the Merger Sub and
perform the Merger. The parties shall each have the right to review in
advance (and shall do so promptly) all proposed filings with, including all
information relating to the other, as the case may be, and any of their
respective Subsidiaries, if any, which appears in any filing made with, or
written material submitted to, any third party or governmental body in
connection with the transactions contemplated by this Agreement.
(g) Each of the parties will promptly furnish each other with
copies of written communications received by them or any of their
respective Subsidiaries, if any, from, or delivered by any of the foregoing
to, any governmental body in respect of the transactions contemplated
hereby with respect to the Merger.
(h) Lafayette acknowledges that HUBCO is in or may be in the
process of acquiring other banks and financial institutions and that in
connection with such acquisitions, information concerning Lafayette may be
required to be included in the registration statements, if any, for the
sale of securities of HUBCO or in SEC reports in connection with such
acquisitions. Lafayette acknowledges that, except as set forth in Section
5.8(b) hereof, prior to the public disclosure of any such acquisition HUBCO
shall be under no obligation to disclose to Lafayette its acquisition plans
or proposals formulated subsequent to the date hereof. Lafayette agrees to
provide HUBCO with any information, certificates, documents or other
materials about Lafayette as are reasonably necessary to be included in
such other SEC reports or registration statements, including registration
statements which may be filed by HUBCO prior to the Effective Time.
Lafayette shall use its reasonable efforts to cause its attorneys and
accountants to provide HUBCO and any underwriters for HUBCO with any
consents, comfort letters, opinion letters, reports or information which
are necessary to complete the registration statements and applications or
any such acquisition or issuance of securities. HUBCO shall reimburse
Lafayette for expenses thus incurred by Lafayette should this transaction
be terminated for any reason other than Section 7.1(h). HUBCO shall not
file with the SEC any registration statement or amendment thereto or
supplement thereof containing information regarding Lafayette unless
Lafayette shall have consented to such filing. Lafayette shall not
unreasonably delay or withhold any such consent.
(i) The parties shall use all reasonable efforts to cause the
filings with the SEC and FDIC of the Proxy Statement/Prospectus, and all
regulatory filings with the Commissioner and the FRB, to be made by April
2, 1996.
5.7. APPROVAL OF STOCKHOLDERS. Lafayette and HUBCO each will
(a) take all steps necessary duly to call, give notice of, convene and hold
a meeting of its stockholders (the "Stockholders' Meeting") for the purpose
of securing the approval of stockholders of this Agreement in the case of
Lafayette and the issuance of HUBCO Common Stock in the case of HUBCO, (b)
subject to the qualification set forth in Section 5.3 hereof with respect
to Lafayette and the right of Lafayette not to make a recommendation or to
withdraw a recommendation if its investment banker withdraws its fairness
opinion prior to the Stockholders' Meeting, recommend to their respective
stockholders the approval by Lafayette shareholders of this Agreement and
the transactions contemplated hereby and the approval of HUBCO shareholders
of the issuance of HUBCO Common Stock hereunder and use its reasonable
efforts to obtain, as promptly as practicable, such approvals, and (c)
cooperate and consult with each other with respect to each of the foregoing
matters.
5.8. FURTHER ASSURANCES.
(a) Subject to the terms and conditions herein provided, each of
the parties hereto agrees to use all reasonable efforts to take, or cause
to be taken, all actions and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
satisfy the conditions to Closing and to consummate and make effective the
transactions contemplated by this Agreement, including, without limitation,
using reasonable efforts to lift or rescind any injunction or restraining
order or other order adversely affecting the ability of the parties to
consummate the transactions contemplated by this Agreement and using its
reasonable efforts to prevent the breach of any representation, warranty,
covenant or agreement of such party contained or referred to in this
Agreement and to promptly remedy the same. In case at any time after the
Effective Time any further action is necessary or desirable to carry out
the purposes of this Agreement, the proper officers and directors of each
party to this Agreement shall take all such necessary action. Nothing in
this section shall be construed to require any party to participate in any
threatened or actual legal, administrative or other proceedings (other than
proceedings, actions or investigations to which it is a party or subject or
threatened to be made a party or subject) in connection with consummation
of the transactions contemplated by this Agreement unless such party shall
consent in advance and in writing to such participation and the other party
agrees to reimburse and indemnify such party for and against any and all
costs and damages related thereto.
(b) Except as set forth in the paragraph below, HUBCO agrees
that from the date hereof to the Effective Time, except as otherwise
approved by Lafayette in writing or as permitted or required by this
Agreement, it will not, nor will it permit its Subsidiaries to take any
action that would result in any of its representations and warranties
contained in Article IV of this Agreement not being true and correct in any
material respect at the Effective Time or that would cause any of its
conditions to Closing not to be satisfied.
Notwithstanding anything in this section or elsewhere in this
Agreement, HUBCO and its Subsidiaries may enter into one or more definitive
acquisition agreements to acquire another bank, thrift or financial
institution or the assets and/or liabilities of such an institution (each
of which is a "HUBCO Acquisition") prior to the Effective Time without the
prior written consent of Lafayette if, and only if, upon the consummation
of the acquisition or merger, (i) HUBCO's Board of Directors continues to
constitute a majority of the continuing Board of Directors of the surviving
company (disregarding the effect of this Merger); (ii) Xxxxxxx X. Xxxxxxx
continues to serve as the Chief Executive Officer of the surviving company;
(iii) the acquisition or merger involves the acquisition or merger with a
financial company which has its headquarters and a substantial majority of
its offices in New Jersey, New York or Connecticut; and (iv) HUBCO's pro
forma book value is diluted by 10% or less and HUBCO's pro forma tangible
book value is diluted by 15% or less as a result of the HUBCO Acquisition
or a series of HUBCO Acquisitions entered into after the date hereof and
before the Effective Time. If HUBCO enters into a definitive agreement for
any HUBCO Acquisition which does not require the prior written consent of
Lafayette, and such HUBCO Acquisition constitutes, in the reasonable
opinion of a majority of the entire Lafayette Board of Directors, a
material adverse change in the business, operations, assets or financial
condition of HUBCO and its Subsidiaries taken as a whole, as specified
under Section 7.1(e)(i) of this Agreement, then such action shall entitle
Lafayette to terminate this Agreement pursuant to Section 7.1(e)(i). In
the event of any termination of this Agreement under the prior sentence,
Lafayette shall reimburse HUBCO for its legal, accounting and advisory
expenses incurred by HUBCO hereunder. For purposes of the warranties and
representations set forth in Article IV hereof, the entity being acquired
in an HUBCO Acquisition shall not be deemed to be a subsidiary or otherwise
a part of HUBCO until the consummation of such HUBCO Acquisition.
5.9. PUBLIC ANNOUNCEMENTS. HUBCO and Lafayette shall cooperate
with each other in the development and distribution of all news releases
and other public filings and disclosures with respect to this Agreement or
the Merger transaction contemplated hereby, and HUBCO and Lafayette agree
that unless approved mutually by them IN ADVANCE, they will not issue any
press release or written statement for general circulation relating
primarily to the transaction contemplated hereby, except as may be
otherwise required by law or regulation in the opinion of counsel.
5.10. FAILURE TO FULFILL CONDITIONS. In the event that HUBCO or
Lafayette determines that a material condition to its obligation to
consummate the transactions contemplated hereby cannot be fulfilled on or
prior to December 31, 1996 and that it will not waive that condition, it
will promptly notify the other party. Except for any acquisition or merger
discussions HUBCO may enter into with other parties, Lafayette and HUBCO
will promptly inform the other of any facts applicable to Lafayette or
HUBCO, respectively, or their respective directors or officers, that would
be likely to prevent or materially delay approval of the Merger by any
governmental authority or which would otherwise prevent or materially delay
completion of the Merger.
5.11. INDEMNIFICATION AND INSURANCE.
(a) For a period of six years after the Effective Time, HUBCO
shall indemnify, defend and hold harmless each person who is now, or has
been at any time prior to the date hereof or who becomes prior to the
Effective Time, a director, officer, employee or agent of Lafayette or any
Subsidiary of Lafayette or serves or has served at the request of Lafayette
in any capacity with any other person (collectively, the "Indemnitees")
against any and all claims, damages, liabilities, losses, costs, charges,
expenses (including, without limitation, reasonable costs of investigation,
and the reasonable fees and disbursements of legal counsel and other
advisers and experts as incurred), judgments, fines, penalties and amounts
paid in settlement, asserted against, incurred by or imposed upon any
Indemnitee by reason of the fact that he or she is or was a director,
officer, employee or agent of Lafayette or any subsidiary of Lafayette or
serves or has served at the request of Lafayette in any capacity with any
other person, (i) in connection with, arising out of or relating to any
threatened, pending or completed claim, action, suit or proceeding (whether
civil, criminal, administrative or investigative), including, without
limitation, any and all claims, actions, suits, proceedings or
investigations by or on behalf of or in the right of or against Lafayette,
or by any present or former shareholder of Lafayette (collectively,
"Claims"), including, without limitation, any Claim which is based upon,
arises out of or in any way relates to the Merger, the Proxy
Statement/Prospectus mailed to Lafayette's stockholders to vote on the
Merger, this Agreement, any of the transactions contemplated by this
Agreement, the Indemnitee's service as a member of Lafayette's Board of
Directors or any committee of Lafayette's Board of Directors, the events
leading up to the execution of this Agreement, any statement,
recommendation or solicitation made in connection therewith or related
thereto and any breach of any duty in connection with any of the foregoing,
and (ii) in connection with, arising out of or relating to the enforcement
of the obligations of HUBCO set forth in this Section 5.11, in each case to
the fullest extent permitted under any of (a) any applicable law (including
without limitation, N.J.S.A. 14A:3-5(8)), (b) Lafayette's Certificate of
Incorporation or (c) its By-Laws (and HUBCO shall also advance expenses as
incurred to the fullest extent permitted under any thereof).
(b) From and after the Effective Time, HUBCO shall assume and
honor any obligation of Lafayette immediately prior to the Effective Time
with respect to the indemnification of the Indemnitees arising out of
Lafayette's Certificate of Incorporation or By-Laws as if such obligations
were pursuant to a contract or arrangement between HUBCO and such
Indemnitees.
(c) In the event HUBCO or any of its successors or assigns (i)
reorganizes or consolidates with or merges into or enters into another
business combination transaction with any other person or entity and is not
the resulting, continuing or surviving corporation or entity of such
consolidation, merger or transaction, or (ii) liquidates, dissolves or
transfers all or substantially all of its properties and assets to any
person or entity, then, and in each such case, proper provision shall be
made so that the successors and assigns of HUBCO assume the obligations set
forth in this Section 5.11.
(d) HUBCO shall have Lafayette's officers and directors covered
under either Lafayette's existing officers' and directors' liability
insurance policy or a rider to HUBCO's then current officers' and
directors' liability insurance ("D&O Insurance") policy for periods of at
least six years after the Effective Time. However, HUBCO only shall be
required to insure such persons upon terms and for coverages substantially
similar to Lafayette's existing D&O insurance.
(e) Any Indemnitee wishing to claim indemnification under
Section 5.11, upon learning of any such claim, action, suit or proceeding,
shall promptly notify HUBCO thereof, but the failure to so notify shall not
relieve HUBCO of any liability it may have to such Indemnitee if such
failure does not materially prejudice HUBCO. In the event of any such
claim, action, suit or proceeding (whether arising before or after the
Effective Time) as to which indemnification under this Section 5.11 is
applicable, (a) HUBCO shall have the right to assume the defense thereof
and HUBCO shall not be liable to such Indemnitees for any legal expenses of
other counsel or any other expenses subsequently incurred by such
Indemnitees in connection with the defense thereof, except that if HUBCO
elects not to assume such defense or counsel for the Indemnitees advises
that there are issues which raise conflicts of interest between HUBCO and
the Indemnitees, the Indemnitees may retain counsel satisfactory to them,
and HUBCO shall pay the reasonable fees and expenses of such counsel for
the Indemnitees as statements therefor are received; PROVIDED HOWEVER, that
HUBCO shall be obligated pursuant to this paragraph (e) to pay for only one
firm of counsel for all Indemnitees in any jurisdiction with respect to a
matter unless the use of one counsel for such Indemnitees would present
such counsel with a conflict of interest that is not waived and (b) the
Indemnitees will cooperate in the defense of any such matter. HUBCO shall
not be liable for settlement of any claim, action or proceeding hereunder
unless such settlement is effected with its prior written consent; PROVIDED
HOWEVER, that HUBCO shall not have any obligation hereunder to any
Indemnitee when and if a court of competent jurisdiction shall ultimately
determine, and such determination shall have become final and
nonappealable, that the indemnification of such Indemnitee in the manner
contemplated hereby is prohibited by applicable law or public policy.
5.12. EMPLOYEE MATTERS.
(a) Following consummation of the Merger, to the extent
practical HUBCO will seek to retain the existing employees of Lafayette in
their same or similar positions (but this paragraph shall not apply to any
employee with a contract).
(b) To the extent any officer or employee of Lafayette is
terminated following consummation of the Merger, such officer or employee
shall be covered by HUBCO's severance policy as described in the HUBCO
Disclosure Schedule with respect to retrenchment or reduction in force and
be given credit under such policy for their years of service with
Lafayette, provided, however, no officer or employee with a written
contract of employment shall be entitled to any additional severance pay
beyond that to which he or she is entitled pursuant to such contract.
(c) Following consummation of the Merger, HUBCO intends to make
available to all employees and officers of Lafayette coverage under the
benefit plans generally available to HUBCO's employees and officers
(including pension and health and hospitalization) on the terms and
conditions available to HUBCO's employees and officers. For purposes of
determining eligibility to participate in such plans, eligibility for
benefit forms and subsidies and vesting of benefits under such plans
(including, but not limited to, any pension, severance, 401(K), vacation
and sick pay), HUBCO shall give effect to years of service with Lafayette
or its Subsidiaries, as the case may be, as if they were with HUBCO or its
Subsidiaries. Additionally, for purposes of calculation of benefits under
vacation, medical, sick leave and disability plans with respect to such
employees and officers of Lafayette, HUBCO shall give effect to years of
service with Lafayette or its Subsidiaries, as the case may be, as if they
were with HUBCO or its Subsidiaries. No employee of Lafayette who becomes
an employee of HUBCO and who was covered by Lafayette's medical insurance
plans shall be excluded from coverage under HUBCO's medical insurance plan
(for such employee or any other covered person) and no medical conditions
of such employee or covered person shall be excluded from coverage on the
basis of a pre-existing condition unless the employee or covered person was
excluded from coverage or such medical condition was excluded from coverage
under Lafayette's medical insurance plans.
5.13. DISCLOSURE SUPPLEMENTS. From time to time prior to the
Effective Time, each party hereto will promptly supplement or amend (by
written notice to the other) its respective Disclosure Schedule delivered
pursuant hereto with respect to any matter hereafter arising which, if
existing, occurring or known at the date of this Agreement, would have been
required to be set forth or described in such Disclosure Schedule or which
is necessary to correct any information in such Disclosure Schedule which
has been rendered materially inaccurate thereby. For the purpose of
determining satisfaction of the conditions set forth in Article VI, no
supplement or amendment to such Disclosure Schedule shall correct or cure
any warranty which was untrue when made, but shall enable the disclosure of
subsequent facts or events to maintain the truthfulness of any warranty.
5.14. EXPENSES OF LAFAYETTE.
(a) For planning purposes Lafayette shall within 15 days from
the date hereof, provide HUBCO with its estimated budget of transaction-
related expenses reasonably anticipated to be payable by Lafayette in
connection with this transaction. Lafayette shall promptly notify HUBCO if
or when it determines that it will expect to exceed its budget; PROVIDED,
HOWEVER, that HUBCO acknowledges that Lafayette shall not be deemed to have
breached this Agreement by virtue of its exceeding such budget.
(b) Promptly after the execution of this Agreement, Lafayette
shall ask all of its attorneys and other professionals to render current
and correct invoices for all unbilled time and disbursements. Lafayette
shall accrue and/or pay all of such amounts as soon as possible.
(c) Lafayette shall advise HUBCO monthly of all out-of-pocket
expenses which Lafayette has incurred in connection with this transaction.
Lafayette shall mutually agree with HUBCO about printing arrangements for
the Proxy Statement/Prospectus before entering into any binding contract
for such expenses.
5.15. COMPLIANCE WITH ANTITRUST LAWS. Each of HUBCO and
Lafayette shall use its best efforts to resolve such objections, if any,
which may be asserted with respect to the Merger under antitrust laws,
including, without limitation, the Xxxx-Xxxxx-Xxxxxx Act. In the event a
suit is threatened or instituted challenging the Merger as violative of
antitrust laws, each of HUBCO and Lafayette shall use its best efforts to
avoid the filing of, resist or resolve such suit. HUBCO and Lafayette
shall use their best efforts to take such action as may be required: (a) by
the Antitrust Division of the Department of Justice or the Federal Trade
Commission in order to resolve such objections as either of them may have
to the Merger under antitrust laws, or (b) by any federal or state court of
the United States, in any suit brought by a private party or governmental
entity challenging the Merger as violative of antitrust laws, in order to
avoid the entry of, or to effect the dissolution of, any injunction,
temporary restraining order, or other order which has the effect of
preventing the consummation of the Merger. Best efforts shall include, but
not be limited to, the proffer by HUBCO of its willingness to accept an
order agreeing to the divestiture, or the holding separate, of any assets
of HUBCO or Lafayette, except to the extent that any such divestitures or
holding separate arrangement would have a material adverse effect on HUBCO.
The entry by a court, in any suit brought by a private party or
governmental entity challenging the Merger as violative of antitrust laws,
of an order or decree permitting the Merger, but requiring that any of the
businesses, product lines or assets of HUBCO or Lafayette be divested or
held separate thereafter shall not be deemed a failure to satisfy the
conditions specified in Section 6.1 hereof except to the extent that any
divestitures or holding separate arrangement would have a material adverse
effect on HUBCO and HUBCO shall not have voluntarily consented to such
divestitures or holding separate arrangements. For the purposes of this
Section 5.15, the divestiture or the holding separate of a branch of the
Bank or Lafayette with less than $20 million in assets shall not be
considered to have a material adverse effect on HUBCO.
5.16. COMFORT LETTERS. HUBCO shall cause Xxxxxx Xxxxxxxx LLP,
its independent public accountants, to deliver to Lafayette, and Lafayette
shall cause Xxxxxx Xxxxxxxx LLP, its independent public accountants, to
deliver to HUBCO and to its officers and directors who sign the
Registration Statement for this transaction, a short-form "comfort letter"
or "agreed upon procedures" letter, dated the date of the mailing of the
Proxy Statement/Prospectus for the Stockholders Meeting of Lafayette, in
the form customarily issued by such accountants at such time in
transactions of this type.
5.17. AFFILIATES. Promptly, but in any event within two weeks,
after the execution and delivery of this Agreement, Lafayette shall deliver
to HUBCO (a) a letter identifying all persons who, to the knowledge of
Lafayette, may be deemed to be affiliates of Lafayette under Rule 145 of
the 1933 Act and the pooling-of-interests accounting rules, including,
without limitation, all directors and executive officers of Lafayette and
(b) copies of letter agreements, each substantially in the form of Exhibit
5.17, executed by each such person so identified as an affiliate of
Lafayette agreeing to comply with Rule 145 and to refrain from transferring
shares as required by the pooling-of-interests accounting rules. Within
two weeks after the date hereof, HUBCO shall cause its directors and
executive officers to enter into letter agreements in the form of Exhibit
5.17-2 with HUBCO concerning the pooling-of-interests accounting rules.
HUBCO hereby agrees to publish, or file a Form 8-K, Form 10-K or Form 10-Q
containing financial results covering at least 30 days of post-Merger
combined operations of HUBCO and Lafayette as soon as practicable (but in
no event later than 30 days) following the close of the first calendar
month ending 30 days after the Effective Time, in form and substance
sufficient to remove the restrictions set forth in paragraph "B" of Exhibit
5.17.
5.18. POOLING AND TAX-FREE REORGANIZATION TREATMENT. Prior to
the date hereof, neither HUBCO or Lafayette has taken any action or failed
to take any action which would disqualify the Merger for pooling of
interests accounting treatment. Before the Effective Time, neither HUBCO
nor Lafayette shall intentionally take, fail to take, or cause to be taken
or not taken any action within its control, which would disqualify the
Merger as a "pooling-of-interests" for accounting purposes or as a
"reorganization" within the meaning of Section 368(a) of the Code. HUBCO
shall organize Merger Sub as a first-tier subsidiary of HUBCO. Subsequent
to the Effective Time, HUBCO shall not take and shall cause the Surviving
Corporation not to take any action within their control that would
disqualify the Merger as such a "reorganization" under the Code.
ARTICLE VI - CLOSING CONDITIONS
6.1. CONDITIONS OF EACH PARTY'S OBLIGATIONS UNDER THIS
AGREEMENT. The respective obligations of each party under this Agreement
to consummate the Merger shall be subject to the satisfaction, or, where
permissible under applicable law, waiver at or prior to the Effective Time
of the following conditions:
(a) APPROVAL OF LAFAYETTE STOCKHOLDERS; SEC REGISTRATION. This
Agreement and the transactions contemplated hereby shall have been approved
by the requisite vote of the stockholders of Lafayette and the issuance of
the HUBCO Common Stock (including without limitation the shares issuable
pursuant to Section 2.6 hereof and upon exercise of the HUBCO Warrants)
pursuant to this Agreement shall have been approved by the requisite vote
of the stockholders of HUBCO. The Lafayette Proxy Statement/Prospectus
shall have been cleared for distribution by the FDIC. The HUBCO
Registration Statement and Proxy Statement/Prospectus shall have been
declared effective by the SEC and shall not be subject to a stop order or
any threatened stop order, and the issuance of the HUBCO Common Stock
(including without limitation the shares issuable pursuant to Section 2.6
hereof and upon exercise of the HUBCO Warrants) shall have been qualified
in every state where such qualification is required under the applicable
state securities laws.
(b) REGULATORY FILINGS. All necessary regulatory or
governmental approvals and consents (including without limitation any
required approval of the FRB, the Department and the FDIC) required to
consummate the transactions contemplated hereby shall have been obtained
without any term or condition which would materially impair the value of
Lafayette to HUBCO. All conditions required to be satisfied prior to the
Effective Time by the terms of such approvals and consents shall have been
satisfied; and all statutory waiting periods in respect thereof (including
the Bank Merger Act and, if applicable, the Xxxx-Xxxxx-Xxxxxx waiting
period) shall have expired.
(c) SUITS AND PROCEEDINGS. No order, judgment or decree shall
be outstanding against a party hereto or a third party that would have the
effect of preventing completion of the Merger; no suit, action or other
proceeding shall be pending or threatened by any governmental body in which
it is sought to restrain or prohibit the Merger; and no suit, action or
other proceeding shall be pending before any court or governmental agency
in which it is sought to restrain or prohibit the Merger or obtain other
substantial monetary or other relief against one or more parties hereto in
connection with this Agreement and which HUBCO or Lafayette determines in
good faith, based upon the advice of their respective counsel, makes it
inadvisable to proceed with the Merger because any such suit, action or
proceeding has a significant potential to be resolved in such a way as to
deprive the party electing not to proceed of any of the material benefits
to it of the Merger.
(d) TAX OPINION. HUBCO and Lafayette shall each have received
an opinion, dated as of the Effective Time, of Pitney, Xxxxxx, Xxxx &
Xxxxx, reasonably satisfactory in form and substance to Lafayette and its
counsel Xxxxxxxxxx, Sandler, Kohl, Xxxxxx & Xxxxxx and to HUBCO, based upon
representation letters reasonably required by Pitney, Xxxxxx, Xxxx & Xxxxx,
dated on or about the date of such opinion, and such other facts and
representations as counsel may reasonably deem relevant, to the effect that
(i) the Merger will be treated for federal income tax purposes as
a reorganization qualifying under the provisions of Sections
368(a)(1)(A) and 368(a)(2)(E) of the Code; (ii) no gain or loss
will be recognized by Lafayette; (iii) no gain or loss shall be
recognized upon the exchange of Lafayette Common Stock solely for
HUBCO Common Stock; (iv) the basis of any HUBCO Common Stock
received in exchange for Lafayette Common Stock shall equal the
basis of the recipient's Lafayette Common Stock surrendered on
the exchange, reduced by the amount of cash received, if any, on
the exchange, and increased by the amount of the gain recognized,
if any, on the exchange (whether characterized as dividend or
capital gain income); and (v) the holding period for any HUBCO
Common Stock received in exchange for Lafayette Common Stock will
include the period during which Lafayette Common Stock
surrendered on the exchange was held, provided such stock was
held as a capital asset on the date of the exchange.
(e) POOLING OF INTERESTS. HUBCO shall have received a letter,
dated the Closing Date, from its accountants, Xxxxxx Xxxxxxxx LLP,
reasonably satisfactory to HUBCO and Lafayette, to the effect that the
Merger shall be qualified to be treated by HUBCO as a pooling-of-interests
for accounting purposes.
6.2. CONDITIONS TO THE OBLIGATIONS OF HUBCO UNDER THIS
AGREEMENT. The obligations of HUBCO under this Agreement shall be further
subject to the satisfaction or waiver, at or prior to the Effective Time,
of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF OBLIGATIONS
OF LAFAYETTE. Except for those representations which are made as of a
particular date, the representations and warranties of Lafayette contained
in this Agreement shall be true and correct in all material respects on the
date of the Closing ("Closing Date") as though made on and as of the
Closing Date. Lafayette shall have performed in all material respects the
agreements, covenants and obligations to be performed by it prior to the
Closing Date. With respect to any representation or warranty which as of
the Closing Date has required a supplement or amendment to Lafayette
Disclosure Schedule to render such representation or warranty true and
correct in all material respects as of the Closing Date, the representation
and warranty shall be deemed true and correct as of the Closing Date only
if (i) the information contained in the supplement or amendment to
Lafayette Disclosure Schedule related to events occurring following the
execution of this Agreement and (ii) the facts disclosed in such supplement
or amendment would not either alone, or together with any other supplements
or amendments to Lafayette Disclosure Schedule, materially adversely affect
the representation as to which the supplement or amendment relates.
(b) OPINION OF COUNSEL TO LAFAYETTE. HUBCO shall have received
an opinion of counsel to Lafayette, dated the Closing Date, in form and
substance reasonably satisfactory to HUBCO, covering matters customarily
covered in opinions of counsel in transactions of this type.
(c) CONSENT OF HOLDERS OF STOCK OPTIONS. Each holder of a
Vested Stock Option whose Vested Stock Option is outstanding at the Closing
shall consent to the conversion and cancellation of his Vested Stock
Options for the consideration set forth herein in Section 2.6(a).
(d) CONNECTICUT DEP COMPLIANCE. With respect to any Properties
which are Establishments under the Connecticut Transfer Act, prior to the
Closing Lafayette shall have delivered to HUBCO a Form in form and content
acceptable to the Connecticut DEP and prior to the Closing shall have fully
accrued on Lafayette's books and disclosed to HUBCO the entire anticipated
costs associated with any requested or reasonably anticipated clean-up.
(e) RESIGNATIONS AND ELECTIONS. HUBCO shall have received from
any person who will not continue as a director of the Surviving Corporation
under Section 1.5 a written resignation, effective at the Effective Time,
in form and substance acceptable to HUBCO; provided, however, that no such
resignation shall result in any person's forfeiting any benefits under any
contractual arrangement. Lafayette shall have taken action, acceptable to
HUBCO, to elect HUBCO's nominees as directors at the Effective Time, as
provided in Section 1.5.
(f) NO OWNERSHIP CHANGE. From January 1, 1992 until the date
upon which this Agreement is publicly announced, there has been no
"ownership change" of Lafayette as defined in Section 382(g) of the Code.
(g) CERTIFICATES. Lafayette shall have furnished HUBCO with
such certificates of its officers or other documents to evidence
fulfillment of the conditions set forth in this Section 6.2 as HUBCO may
reasonably request.
6.3. CONDITIONS TO THE OBLIGATIONS OF LAFAYETTE UNDER THIS
AGREEMENT. The obligations of Lafayette under this Agreement shall be
further subject to the satisfaction or waiver, at or prior to the Effective
Time, of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF OBLIGATIONS
OF HUBCO. Except for those representations which are made as of a
particular date, the representations and warranties of HUBCO contained in
this Agreement shall be true and correct in all material respects on the
Closing Date as though made on and as of the Closing Date. HUBCO and the
Bank shall have performed in all material respects, the agreements,
covenants and obligations to be performed by it prior to the Closing Date.
With respect to any representation or warranty which as of the Closing Date
has required a supplement or amendment to the HUBCO Disclosure Schedule to
render such representation or warranty true and correct in all material
respects as of the Closing Date, the representation and warranty shall be
deemed true and correct as of the Closing Date only if (i) the information
contained in the supplement or amendment to the HUBCO Disclosure Schedule
related to events occurring following the execution of this Agreement and
(ii) the facts disclosed in such supplement or amendment would not either
alone, or together with any other supplements or amendments to the HUBCO
Disclosure Schedule, materially adversely affect the representation as to
which the supplement or amendment relates.
(b) OPINION OF COUNSEL TO HUBCO. Lafayette shall have received
an opinion of counsel to HUBCO, dated the Closing Date, in form and
substance reasonably satisfactory to Lafayette , covering matters
customarily covered in opinions of counsel in transactions of this type.
(c) FAIRNESS OPINION. Lafayette shall have received an updated
opinion from Xxxxx, Xxxxxxxx & Xxxxx, dated as of the date the Proxy
Statement/Prospectus is mailed to Lafayette's stockholders (and, if it
shall become necessary to resolicit proxies thereafter, the date of any
substantive amendment to the Proxy Statement/Prospectus), to the effect
that, in its opinion, the Merger Consideration to be received by the
holders of Lafayette Common Stock is fair to the stockholders of Lafayette
from a financial point of view ("Fairness Opinion").
(d) CERTAIN CONTRACTS. HUBCO shall have specifically
acknowledged, accepted and assumed (in a document in form and substance
reasonably satisfactory to Lafayette) any written employment, severance and
other compensation contracts between Lafayette and its officers and
directors (including former officers and directors) contained in the
Lafayette Disclosure Schedules in a writing delivered to the officers and
directors covered thereby, unless the employment contract is terminated or,
if applicable, the employment of the officer by Lafayette is terminated for
any reason prior to the Closing.
(e) DIRECTORS. Three nominees, designated by Lafayette and
acceptable to HUBCO, shall be duly appointed by the Board of Directors of
HUBCO to HUBCO's Board of Directors, effective at the Effective Time.
(f) CERTIFICATES. HUBCO shall have furnished Lafayette with
such certificates of its officers or others and such other documents to
evidence fulfillment of the conditions set forth in this Section 6.3 as
Lafayette may reasonably request.
ARTICLE VII - TERMINATION, AMENDMENT AND WAIVER
7.1. TERMINATION. This Agreement may be terminated prior to the
Effective Time, whether before or after approval of this Agreement by the
stockholders of Lafayette:
(a) by mutual written consent of the parties hereto;
(b) (i) by Lafayette or HUBCO if the Effective Time shall not
have occurred on or prior to December 31, 1996 unless the failure of such
occurrence shall be due to the failure of the party seeking to terminate
this Agreement to perform or observe its agreements set forth herein to be
performed or observed by such party at or before the Effective Time, or
(ii) by HUBCO or Lafayette if a vote of the stockholders of Lafayette to
approve this Agreement, or the stockholders of HUBCO to approve the
issuance of HUBCO Common Stock under this Agreement, is taken and the
stockholders of either Lafayette or HUBCO fail to approve such action at
the meeting (or any adjournment thereof) held for such purpose;
(c) by HUBCO or Lafayette upon written notice to the other if
any application for regulatory or governmental approval necessary to
consummate the Merger and the other transactions contemplated hereby shall
have been denied or withdrawn at the request or recommendation of the
applicable regulatory agency or governmental authority or by HUBCO upon
written notice to Lafayette if any such application is approved with
conditions which materially impair the value of Lafayette to HUBCO;
(d) by HUBCO if (i) there shall have occurred a material adverse
change in the business, operations, assets, or financial condition of
Lafayette and its Subsidiaries taken as a whole from that disclosed by
Lafayette in Lafayette's Quarterly Report on Form F-4 for the nine months
ended September 30, 1995; or (ii) there was a material breach in any
representation, warranty, covenant, agreement or obligation of Lafayette
hereunder and such breach shall not have been remedied within 30 days after
receipt by Lafayette of notice in writing from HUBCO to Lafayette
specifying the nature of such breach and requesting that it be remedied;
(e) by Lafayette, if (i) there shall have occurred a material
adverse change in the business, operations, assets or financial condition
of HUBCO and its Subsidiaries taken as a whole from that disclosed by HUBCO
in HUBCO's Quarterly Report on Form 10-Q for the nine months ended
September 30, 1995; or (ii) there was a material breach in any
representation, warranty, covenant, agreement or obligation of HUBCO
hereunder and such breach shall not have been remedied within 30 days after
receipt by HUBCO of notice in writing from Lafayette specifying the nature
of such breach and requesting that it be remedied;
(f) by HUBCO if the conditions set forth in Section 6.2 are not
satisfied;
(g) by Lafayette if the conditions set forth in Section 6.3 are
not satisfied;
(h) by Lafayette, if Lafayette's Board of Directors shall have
approved an Acquisition Transaction after determining, upon advice of
counsel, that such approval was necessary in the exercise of its fiduciary
obligations under applicable laws; and
(i) by Lafayette, if (either before or after its approval by the
stockholders of Lafayette) its Board of Directors so determines by a vote
of a majority of the members of its entire Board, at any time during the
ten-day period commencing with the Determination Date, if either (x) both
of the following conditions are satisfied:
(1) the HUBCO Common Stock Average Price on the
Determination Date shall be less than $19.25; and
(2) (i) the number obtained by dividing the HUBCO Common
Stock Average Price on such Determination Date by the Starting Date
Closing Price (the "HUBCO Ratio") shall be less than (ii) the number
obtained by dividing the Index Price on the Determination Date by the
Index Price on the Starting Date and subtracting .075 from the
quotient in this clause (2)(ii) (such number being referred to herein
as the "Index Ratio");
or (y) the HUBCO Common Stock Average Price on the Determination Date of
shares of HUBCO Common Stock shall be less than $18.25. Notwithstanding
the foregoing, if Lafayette elects to exercise its termination right
pursuant either to clause (x) or (y) of this subsection (i), it shall give
prompt written notice to HUBCO (which notice shall specifically reference
which of clause (x) or (y) is applicable (provided that such notice of
election to terminate may be withdrawn at any time within the
aforementioned ten-day period)). During the seven-day period commencing
with its receipt of such notice, HUBCO shall have the option, in the case
of a failure to fulfill any condition in clause (x), of increasing the
consideration to be received by the holders of Lafayette Common Stock
hereunder by increasing the Exchange Ratio to equal the lesser of (i) a
number (rounded to four decimals) equal to a quotient, the numerator of
which is $19.25 multiplied by the Exchange Ratio (as then in effect) and
the denominator of which is the HUBCO Common Stock Average Price, and (ii)
a number equal to a quotient, the numerator of which is the Index Ratio
multiplied by the Exchange Ratio (as then in effect) and the denominator of
which is the HUBCO Ratio. During such seven-day period, HUBCO shall have
the option, in the case of a failure to fulfill clause (y), of increasing
the consideration to be received by holders of Lafayette Common Stock
hereunder by increasing the Exchange Ratio to equal a number (rounded to
four decimals) equal to a quotient, the numerator of which is $18.25
multiplied by the Exchange Ratio (as then in effect) and the denominator of
which is the HUBCO Common Stock Average Price. If HUBCO makes an election
contemplated by the two preceding sentences, within such seven-day period,
it shall give prompt written notice to Lafayette of such election and the
revised Exchange Ratio, whereupon no termination shall have occurred
pursuant to this subsection (i) and this Agreement shall remain in effect
in accordance with its terms (except as the Exchange Ratio shall have been
so modified), and any references in this Agreement to "Exchange Ratio"
shall thereafter be deemed to refer to the Exchange Ratio as adjusted
pursuant to this subsection (i).
For purposes of this subsection (i), the following terms shall
have the meanings indicated:
"HUBCO Common Stock Average Price" means the average of the daily
closing sales prices of HUBCO Common Stock as reported on the NASDAQ
National Market System (as reported in THE WALL STREET JOURNAL or, if not
reported thereby, another authoritative source as chosen by HUBCO) for the
20 consecutive full trading days in which such shares are quoted on the
NASDAQ National Market ending at the close of trading on the Determination
Date.
"Determination Date" means the date on which the approval of the
FRB required for consummation of the Merger shall be received.
"Index Group" means the 11 bank holding companies listed below,
the common stock of all of which shall be publicly traded and as to which
there shall not have been a publicly announced proposal since the Starting
Date and before the Determination Date for any such company to be acquired.
In the event that the common stock of any such company ceases to be
publicly traded or a proposal to acquire any such company is announced
after the Starting Date and before the Determination Date, such company
will be removed from the Index Group. The 11 bank holding companies are as
follows:
BANK HOLDING COMPANIES
Xxxxxxxxxx Corp. (CNDN)
Citizen BancShares (CICS)
Community Bank Systems (CBSI)
Commerce Bank Corp. (COBA)
First Western Bancorp (FWBI)
Xxxxxx Financial (FULT)
North Fork Bancorp (NFB)
Provident Bancorp., Inc. (PRBK)
S & T Bancorp (STBA)
Trust Co. Bancorp (TRST)
Valley National Bancorp (VLY)
"Index Price" on a given date means the average of the closing
prices of the companies composing the Index Group.
"Starting Date" means the first NASDAQ trading day immediately
following the date of the first public announcement of the entry into this
Agreement.
If any company belonging to the Index Group or HUBCO declares or
effects a stock dividend, reclassification, recapitalization, split-up,
combination, exchange of shares or similar transaction between the Starting
Date and the Determination Date, the prices for such company or HUBCO shall
be appropriately adjusted for the purposes of applying this subsection (i).
7.2. EFFECT OF TERMINATION. In the event of the termination and
abandonment of this Agreement by either HUBCO or Lafayette pursuant to
Section 7.1, this Agreement (other than Section 5.5(b), the third from the
last sentence of Section 5.6(h), the second from the last sentence of
Section 5.8(b), this Section 7.2 and Section 8.1) shall forthwith become
void and have no effect, without any liability on the part of any party or
its officers, directors or stockholders. Nothing contained herein,
however, shall relieve any party from any liability for any breach of this
Agreement.
7.3. AMENDMENT. This Agreement may be amended by action taken
by the parties hereto at any time before or after adoption of this
Agreement by the stockholders of Lafayette but, after any such adoption, no
amendment shall be made which reduces the amount or changes the form of the
consideration to be delivered to the stockholders of Lafayette without the
approval of such stockholders. This Agreement may not be amended except by
an instrument in writing signed on behalf of all the parties hereto.
7.4. EXTENSION; WAIVER. The parties may, at any time prior to
the Effective Time of the Merger, (i) extend the time for the performance
of any of the obligations or other acts of the other parties hereto; (ii)
waive any inaccuracies in the representations and warranties contained
herein or in any document delivered pursuant thereto; or (iii) waive
compliance with any of the agreements or conditions contained herein. Any
agreement on the part of any party to any such extension or waiver shall be
valid only if set forth in an instrument in writing signed on behalf of
such party against which the waiver is sought to be enforced.
ARTICLE VIII - MISCELLANEOUS
8.1. EXPENSES.
(a) Subject to Section 5.6(h) and Section 5.8(b) hereof, all
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby (including legal, accounting and
investment banking fees and expenses) shall be borne by the party incurring
such costs and expenses.
(b) Notwithstanding any provision in this Agreement to the
contrary, in the event that either of the parties shall willfully default
in its obligations hereunder, the non-defaulting party may pursue any
remedy available at law or in equity to enforce its rights and shall be
paid by the willfully defaulting party for all damages, costs and expenses,
including without limitation legal, accounting, investment banking and
printing expenses, incurred or suffered by the non-defaulting party in
connection herewith or in the enforcement of its rights hereunder if such
non-defaulting party prevails.
8.2. SURVIVAL. Except for the provisions of Article II, Section
5.8, Section 5.11, Section 5.17 and the last sentence of Section 5.18
hereof, the respective representations, warranties, covenants and
agreements of the parties to this Agreement shall not survive the Effective
Time, but shall terminate as of the Effective Time.
8.3. NOTICES. All notices or other communications which are
required or permitted hereunder shall be in writing and sufficient if
delivered personally or sent by registered or certified mail, postage
prepaid, as follows:
(a) If to HUBCO, to:
HUBCO, Inc.
0000 XxxXxxxxx Xxxxxxxxx
Xxxxxx, Xxx Xxxxxx 00000_
Attn.: Xx.Xxxxxxx X. Xxxxxxx, President and
Chief Executive Officer
Copy to:
Xxxxxx X. Xxxxx, Esq.
Pitney, Xxxxxx, Xxxx & Xxxxx
000 Xxxxxx Xxxxx
Xxxxxxx Xxxx, Xxx Xxxxxx 00000-0000
(b) If to Lafayette, to:
Lafayette American Bank and Trust Company
0000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxx 00000
Attn.: Xx. Xxxxxx X. Xxxxxxxxx, President and
Chief Executive Officer
Copy to:
Xxxxx X. Xxxxxxxxx, Esq.
Xxxxxxxxxx, Sandler, Kohl, Xxxxxx & Xxxxxx
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
or such other addresses as shall be furnished in writing by any party, and
any such notice or communications shall be deemed to have been given as of
the date so mailed.
8.4. PARTIES IN INTEREST. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns. Nothing in this Agreement is intended to confer,
expressly or by implication, upon any other person any rights or remedies
under or by reason of this Agreement, except for the Indemnitees covered by
Section 5.11 hereof.
8.5. ENTIRE AGREEMENT. This Agreement, which includes the
Disclosure Schedules hereto and the other documents, agreements and
instruments executed and delivered pursuant to or in connection with this
Agreement, contains the entire Agreement between the parties hereto with
respect to the transactions contemplated by this Agreement and supersedes
all prior negotiations, arrangements or understandings, written or oral,
with respect thereto.
8.6. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same
agreement and each of which shall be deemed an original.
8.7. GOVERNING LAW. This Agreement shall be governed by the
laws of the State of New Jersey, without giving effect to the principles of
conflicts of laws thereof.
8.8. DESCRIPTIVE HEADINGS. The descriptive headings of this
Agreement are for convenience only and shall not control or affect the
meaning or construction of any provision of this Agreement.
8.9. KNOWLEDGE. Representations made herein which are qualified
by the phrase to the best of Lafayette's knowledge or similar phrases,
refer as of the date hereof to the best knowledge of the Chairman of the
Board, the Chief Executive Officer, the Chief Financial Officer and the
Comptroller of Lafayette and thereafter refer to the best knowledge of any
senior officer of Lafayette or its Subsidiaries. Representations made
herein which are qualified by the phrase to the best of HUBCO's knowledge
or similar phrases, refer as of the date hereof to the best of the
knowledge of the President and Chief Executive Officer, the Executive Vice
President/Legal and the Chief Financial Officer of HUBCO and thereafter
refer to the best knowledge of any senior officer of HUBCO or its
Subsidiaries.
IN WITNESS WHEREOF, HUBCO and LAFAYETTE, pursuant to resolutions
adopted by its Board of Directors, have caused this Agreement and Plan of
Merger to be executed by their duly authorized officers as of the day and
year first above written.
HUBCO, INC.
By: /s/ XXXXXXX X. XXXXXXX
------------------------------
Xxxxxxx X. Xxxxxxx,
President and Chief Executive
Officer
LAFAYETTE AMERICAN BANK AND TRUST
COMPANY
By: /s/ XXXXXX X. XXXXXXXXX
------------------------------
Xxxxxx X. Xxxxxxxxx,
President and Chief Executive
Officer
EXHIBIT 1 TO
HUBCO/LAFAYETTE MERGER AGREEMENT
1. OFFICES:
MAIN OFFICE
0000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
BRANCHES
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
0000 Xxxxxxxx Xxxxxx (Xx. 10)
Cheshire, CT
0000 Xxxxx Xxxx Xxxxxxxx
Xxxxxxxxx, XX
0000 Xxxx Xxxx
Xxxxxxxxx, XX
0000 Xxxxxxx Xxxxxx
Xxxxxx, XX
0000 Xxxxxxx Xxxxxx
Xxxxxx, XX
Quinnipiac College
Hamden, CT
00 Xxxx Xxxx Xxxxxx
Xxxxxxx, XX
000 Xxxx Xxxxxx
Xxxxxxxxxxx, XX
0 Xxxxxxx Xxxxxx
Xxx Xxxxx, XX
0 Xxxxxxxx Xxxxxx
Xxxxx Xxxxx, XX
000 Xxxx Xxxxxx
Xxxxxxx, XX
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX
0000 Main Street
(Trumbull Shopping Park)
Trumbull, CT
000 Xxx Xxxxxx
Xxxx Xxxxx, XX
000 Xxxx Xxxx Xxxx
(Xxxxxxxx Xxxxx)
Xxxxxxxx, XX
000 Xxxx Xxxx Xxxx
(Xxxxxxxxx Xxxxxxx)
Xxxxxxxx/Xxxxxxx, XX
0. CAPITAL STOCK OF SURVIVING CORPORATION:
a. Amount of Capital Stock: $50,310,000
b. Number of Shares Issued: 10,006,529
c. Par Value: No par
d. Surplus: $50,110,000
EXHIBIT 5.17
FORM OF LAFAYETTE AFFILIATE LETTER
February __, 1996
HUBCO, Inc.
0000 XxxXxxxxx Xxxxxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Gentlemen:
I am delivering this letter to you in connection with the
proposed acquisition (the "Merger") of Lafayette American Bank and Trust
Company, a Connecticut commercial bank (the "Company"), by HUBCO, Inc., a
New Jersey corporation and registered bank holding company ("HUBCO"),
pursuant to the Agreement and Plan of Merger dated as of February 5, 1996
(the "Agreement") between the Company and HUBCO. I currently own shares of
the Company's common stock, no par value ("Lafayette Common Stock"). As a
result of the Merger, I will receive shares of HUBCO's common stock, no par
value ("HUBCO Common Stock") in exchange for my Lafayette Common Stock.
I have been advised that as of the date of this letter I may be
deemed to be an "affiliate" of the Company, as the term "affiliate" is
defined for purposes of paragraphs (c) and (d) of Rule 145 of the rules and
regulations promulgated under the Securities Act of 1933, as amended (the
"1933 Act") by the Securities and Exchange Commission ("SEC") and as the
term "affiliate" is used for purposes of the SEC's rules and regulations
applicable to the determination of whether a merger can be accounted for as
a "pooling of interests" as specified in the SEC's Accounting Series
Release 135, as amended by Staff Accounting Bulletins Nos. 65 and 76 ("ASR
135").
I represent to and agree with HUBCO that:
A. TRANSFER REVIEW RESTRICTIONS. During the period beginning on
the date hereof and ending 30 days prior to the consummation of the Merger,
I shall not sell, transfer, reduce my risk with respect to or otherwise
dispose of ("transfer") any Lafayette Common Stock owned by me, and I shall
not permit any relative who shares my home, or any person or entity who or
which I control, to transfer any Lafayette Common Stock owned by such
person or entity, without notifying HUBCO in advance of the proposed
transfer and giving HUBCO a reasonable opportunity to review the transfer
before it is consummated. HUBCO, if advised to do so by its independent
public accountants, may instruct me not to make or permit the transfer
because it may interfere with the "pooling of interests" treatment of the
Merger. I shall abide by any such instructions.
B. TRANSFER RESTRICTIONS DURING MERGER CONSUMMATION PERIOD. I
shall not transfer any Lafayette Common Stock owned by me, and I shall not
permit any relative who shares my home, or any person or entity who or
which I control, to transfer any Lafayette Common Stock owned by such
person or entity during the period beginning 30 days prior to the
consummation of the Merger and ending immediately after financial results
covering at least 30 days of post-Merger combined operations have been
published by HUBCO by means of the filing of a Form 10-Q or Form 8-K under
the Securities Exchange Act of 1934, as amended, the issuance of a
quarterly earnings report, or any other public issuance which satisfies the
requirements of ASR 135. For purposes of this paragraph only, "Lafayette
Common Stock" includes HUBCO Common Stock into which my Lafayette Common
Stock is converted.
C. COMPLIANCE WITH RULE 145. I have been advised that the
issuance of HUBCO Common Stock to me pursuant to the Merger will be
registered with the SEC under the 1933 Act on a Registration Statement on
Form S-4. However, I have also been advised that, since I may be deemed to
be an affiliate of the Company at the time the Merger is submitted for a
vote of the Company's stockholders, any transfer by me of HUBCO Common
Stock is restricted under Rule 145 promulgated by the SEC under the 1933
Act. I agree not to transfer the HUBCO Common Stock received by me or any
of my affiliates unless (i) such transfer is made in conformity with the
volume and other limitations of Rule 145 promulgated by the SEC under the
1933 Act, (ii) in the opinion of HUBCO's counsel or counsel reasonably
acceptable to HUBCO, such transfer is otherwise exempt from registration
under the 1933 Act or (iii) such transfer is registered under the 1933 Act.
D. STOP TRANSFER INSTRUCTIONS; LEGEND ON CERTIFICATES. I also
understand and agree that stop transfer instructions will be given to
HUBCO's transfer agents with respect to the HUBCO Common Stock received by
me and any of my affiliates and that there will be placed on the
certificates of the HUBCO Common Stock issued to me and any of my
affiliates, or any substitutions therefor, a legend stating in substance:
"THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A
TRANSACTION TO WHICH RULE 145 PROMULGATED UNDER THE SECURITIES ACT OF
1933 APPLIES. THE SHARES REPRESENTED BY THIS CERTIFICATE MAY ONLY BE
TRANSFERRED IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT DATED
FEBRUARY 5, 1996 BETWEEN THE REGISTERED HOLDER HEREOF AND HUBCO, INC.,
A COPY OF WHICH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICES OF
HUBCO, INC."
E. CONSULTATION WITH COUNSEL. I have carefully read this letter
and the Agreement and discussed the requirements of such documents and
other applicable limitations upon my ability to transfer HUBCO Common Stock
to the extent I felt necessary with my counsel or counsel for the Company.
Execution of this letter is not an admission on my part that I am
an "affiliate" of the Company as described in the second paragraph of this
letter, or a waiver of any rights I may have to object to any claim that I
am such an affiliate on or after the date of this letter. This letter shall
terminate concurrently with any termination of the Agreement in accordance
with its terms.
Very truly yours,
_____________________________
Name:
Accepted this _____ day of
February, 1996 by
HUBCO, INC.
By: ______________________________
Name:
Title:
EXHIBIT 5.17-2
FORM OF AFFILIATE LETTER FOR HUBCO AFFILIATES
February ___, 1996
HUBCO, Inc.
0000 XxxXxxxxx Xxxxxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Gentlemen:
I am delivering this letter to you in connection with the
proposed merger (the "Merger") of Lafayette American Bank and Trust
Company, a Connecticut commercial bank ("Lafayette"), with and into
_______________, an interim Connecticut commercial bank wholly-owned by
HUBCO, Inc., a New Jersey corporation and registered bank holding company
("HUBCO"), pursuant to the Agreement and Plan of Merger dated as of
February 5, 1996 (the "Agreement") between HUBCO and Lafayette. I
currently own shares of HUBCO's common stock, no par value ("HUBCO Common
Stock").
I have been advised that as of the date of this letter I may be
deemed to be an "affiliate" of HUBCO, as the term "affiliate" is used for
purposes of the rules and regulations of the Securities and Exchange
Commission (the "Commission") applicable to the determination of whether a
merger can be accounted for as a "pooling of interests" as specified in the
Commission's Accounting Series Release 135, as amended by Staff Accounting
Bulletins Nos. 65 and 76 ("ASR 135").
I represent and covenant with HUBCO and Lafayette that:
A. TRANSFER RESTRICTIONS PRIOR TO MERGER CONSUMMATION. During
the period beginning on the date hereof and ending 30 days prior to the
consummation of the Merger, I shall not sell, transfer, reduce my risk with
respect to or otherwise dispose of ("transfer") any HUBCO Common Stock
owned by me, and I shall not permit any relative who shares my home, or any
person or entity who or which I control, from transferring any HUBCO Common
Stock owned by such person or entity, without notifying HUBCO in advance of
the proposed transfer and giving HUBCO a reasonable opportunity to object
to the transfer before it is consummated. HUBCO, upon advice of its
independent public accountants, may instruct me not to make or permit the
transfer because it may interfere with the "pooling of interests" treatment
of the Merger. I shall abide by any such instructions.
B. POST-CONSUMMATION TRANSFER RESTRICTIONS. During the period
beginning 30 days prior to the consummation of the Merger and ending
immediately after financial results covering at least 30 days of post-
Merger combined operations have been published by HUBCO by means of filing
of a Form 10-Q or Form 8-K under the Securities Exchange Act of 1934, the
issuance of a quarterly earnings report, or any other public issuance which
satisfies the requirements of ASR 135, I shall not transfer any HUBCO
Common Stock owned by me, and I shall not permit any relative who shares my
home, or any person or entity who or which I control, to transfer any HUBCO
Common Stock owned by such person or entity.
C. CONSULTATION WITH COUNSEL. I have carefully read this
letter and the Agreement and discussed the requirements of such documents
and other applicable limitations upon my ability to transfer HUBCO Common
Stock to the extent I felt necessary with my counsel or counsel for HUBCO.
Execution of this letter is not an admission on my part that I am
an "affiliate" of HUBCO as described in the second paragraph of this
letter, or a waiver of any rights I may have to object to any claim that I
am such an affiliate on or after the date of this letter. This letter
shall terminate concurrently with any termination of the Agreement in
accordance with its terms.
Very truly yours,
_____________________________________
Name:
Title:
Accepted this ____ day of
February, 1996 by
HUBCO, INC.
By: ________________________________
Name:
Title:
