EXHIBIT 2.1
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AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
Between
NORTH FORK BANCORPORATION, INC.
and
RELIANCE BANCORP, INC.
Dated as of August 30, 1999
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TABLE of CONTENTS
Page
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ARTICLE I
THE MERGER.............................................................1
1.1. The Merger.......................................................1
1.2. Effective Time...................................................2
1.3. Effects of the Merger............................................2
1.4. Conversion of Company Common Stock...............................2
1.5. Stock Options....................................................3
1.6. Buyer Common Stock...............................................5
1.7. Certificate of Incorporation.....................................5
1.8. By-Laws..........................................................5
1.9. Directors and Officers...........................................5
1.10. Tax Consequences.................................................5
ARTICLE II
EXCHANGE OF SHARES.....................................................5
2.1. Buyer to Make Shares Available...................................5
2.2. Exchange of Shares...............................................6
ARTICLE III
DISCLOSURE SCHEDULES; STANDARDS
FOR REPRESENTATIONS AND WARRANTIES.....................................9
3.1. Disclosure Schedules.............................................9
3.2. Standards........................................................9
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.........................10
4.1. Corporate Organization..........................................11
4.2. Capitalization..................................................12
4.3. Authority; No Violation.........................................13
4.4. Consents and Approvals..........................................15
4.5. Reports.........................................................16
4.6. Financial Statements............................................16
4.7. Broker's Fees...................................................17
4.8. Absence of Certain Changes or Events............................18
4.9. Legal Proceedings...............................................18
4.10. Taxes...........................................................19
4.11. Employees.......................................................21
4.12. SEC Reports.....................................................23
4.13. Company Information.............................................23
4.14. Compliance with Applicable Law..................................23
4.15. Certain Contracts...............................................24
4.16. Agreements with Regulatory Agencies.............................25
4.17. Investment Securities...........................................25
4.18. State Takeover Laws; Business Combination
Provision.....................................................25
4.19. Environmental Matters...........................................26
4.20. Derivative Transactions.........................................27
4.21. Opinion.........................................................27
4.22. Approvals.......................................................28
4.23. Loan Portfolio..................................................28
4.24. Property........................................................29
4.25. Reorganization..................................................29
4.26. Company Rights Agreement........................................29
4.27. Equity and Real Estate Investments..............................30
4.28. Year 2000 Matters...............................................30
ARTICLE V
REPRESENTATIONS AND WARRANTIES
OF BUYER..............................................................30
5.1. Corporate Organization..........................................30
5.2. Capitalization..................................................31
5.3. Authority; No Violation.........................................33
5.4. Consents and Approvals..........................................34
5.5. Reports.........................................................35
5.6. Financial Statements............................................35
5.7. Broker's Fees...................................................36
5.8. Absence of Certain Changes or Events............................36
5.9. Legal Proceedings...............................................37
5.10. Taxes...........................................................37
5.11. Employees.......................................................38
5.12. SEC Reports.....................................................40
5.13. Buyer Information...............................................40
5.14. Compliance with Applicable Law..................................41
5.15. Ownership of Company Common Stock...............................41
5.16. Agreements with Regulatory Agencies.............................41
5.17. Approvals.......................................................42
5.18. Tax Treatment for the Merger;
Reorganization................................................42
5.19. Environmental Matters...........................................42
5.20. Loan Portfolio..................................................43
5.21. Property........................................................44
5.22. Derivative Transactions.........................................44
5.23. Year 2000 Matters...............................................45
5.24. Insurance.......................................................45
ARTICLE VI
COVENANTS RELATING TO CONDUCT OF BUSINESS.............................45
6.1. Covenants of the Company........................................45
6.2. Covenants of Buyer..............................................50
ARTICLE VII
ADDITIONAL AGREEMENTS.................................................51
7.1. Regulatory Matters..............................................51
7.2. Access to Information...........................................53
7.3. Stockholder Meetings............................................55
7.4. Legal Conditions to Merger......................................55
7.5. Affiliates......................................................56
7.6. Stock Exchange Listing..........................................56
7.7. Employee Benefit Plans; Existing
Agreements.....................................................56
7.8. Indemnification.................................................58
7.9. Additional Agreements...........................................60
7.10. Advice of Changes...............................................61
7.11. Current Information.............................................61
7.12. Execution and Authorization of Bank
Merger Agreement...............................................62
7.13. Coordination of Dividends.......................................62
7.14. Directorship....................................................62
7.15. Accountants' Letter.............................................63
7.16. Certain Revaluations, Changes and
Adjustments....................................................63
7.17. Year 2000.......................................................63
7.18. JSB Financial Merger............................................63
7.19. Advisory Board..................................................64
ARTICLE VIII
CONDITIONS PRECEDENT..................................................64
8.1. Conditions to Each Party's Obligation
To Effect the Merger...........................................64
8.2. Conditions to Obligations of Buyer..............................65
8.3. Conditions to Obligations of the Company........................66
ARTICLE IX
TERMINATION AND AMENDMENT.............................................68
9.1. Termination.....................................................68
9.2. Effect of Termination; Expenses.................................73
9.3. Amendment.......................................................73
9.4. Extension; Waiver...............................................74
ARTICLE X
GENERAL PROVISIONS....................................................74
10.1. Closing........................................................74
10.2. Alternative Structure..........................................75
10.3. Nonsurvival of Representations,
Warranties and Agreements.....................................75
10.4. Expenses.......................................................75
10.5. Notices........................................................76
10.6. Interpretation.................................................77
10.7. Counterparts...................................................77
10.8. Entire Agreement...............................................77
10.9. Governing Law..................................................77
10.10. Enforcement of Agreement.......................................77
10.11. Severability...................................................78
10.12. Publicity......................................................78
10.13. Assignment; No Third Party
Beneficiaries................................................78
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER, dated as of
August 30, 1999 (this "Agreement"), by and between North Fork
Bancorporation, Inc., a Delaware corporation ("Buyer"), and Reliance
Bancorp, Inc., a Delaware corporation (the "Company"). Buyer and the
Company are sometimes collectively referred to herein as the "Constituent
Corporations".
WHEREAS, the Boards of Directors of Buyer and the Company have
determined that it is in the best interests of their respective companies
and their stockholders to consummate the business combination transaction
provided for herein in which the Company will, subject to the terms and
conditions set forth herein, merge (the "Merger") with and into Buyer; and
WHEREAS, the parties desire to make certain representations,
warranties and agreements in connection with the Merger and also to
prescribe certain conditions to the Merger.
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and agreements contained herein, and intending
to be legally bound hereby, the parties agree as follows:
ARTICLE ARTICLE I
THE MERGER
Section 1.1 The Merger. Subject to the terms and conditions of
this Agreement, in accordance with the Delaware General Corporation Law
(the "DGCL"), at the Effective Time (as defined in Section 1.2 hereof), the
Company shall merge with and into Buyer. Buyer shall be the surviving
corporation (hereinafter sometimes called the "Surviving Corporation") in
the Merger, and shall continue its corporate existence under the laws of
the State of Delaware. The name of the Surviving Corporation shall continue
to be North Fork Bancorporation, Inc. Upon consummation of the Merger, the
separate corporate existence of the Company shall terminate.
Section 1.2 Effective Time. The Merger shall become effective
as set forth in the certificate of merger (the "Certificate of Merger")
which shall be filed with the Secretary of State of the State of Delaware
(the "Secretary") on the Closing Date (as defined in Section 10.1 hereof).
The term "Effective Time" shall be the date and time when the Merger
becomes effective, as set forth in the Certificate of Merger.
Section 1.3 Effects of the Merger. At and after the Effective
Time, the Merger shall have the effects set forth in Sections 259 and 261
of the DGCL.
Section 1.4 Conversion of Company Common Stock.
(a) At the Effective Time, subject to Section 2.2(e) and
Section 9.1(h) hereof, each share of the common stock, par value $0.01 per
share, of the Company (the "Company Common Stock") issued and outstanding
immediately prior to the Effective Time (other than (x) shares of Company
Common Stock held in the Company's treasury, (y) shares of Company Common
Stock held directly or indirectly by Buyer or the Company or any of their
respective Subsidiaries (as defined below) (except for Trust Account Shares
and DPC shares, as such terms are defined in Section 1.4(b) hereof), or (z)
unallocated shares of Company Common Stock held in the Company's
Recognition and Retention Plans) together with the related Company Rights
issued pursuant to the Company Rights Agreement (each as defined in Section
4.2(a) hereof) shall, by virtue of this Agreement and without any action on
the part of the holder thereof, be converted into and exchangeable for 2.0
(two) shares (the "Exchange Ratio") of the common stock, par value $2.50
per share, of Buyer ("Buyer Common Stock"). All of the shares of Company
Common Stock converted into Buyer Common Stock pursuant to this Article I
shall no longer be outstanding and shall automatically be cancelled and
shall cease to exist, and each certificate (each a "Certificate")
previously representing any such shares of Company Common Stock shall
thereafter only represent the right to receive (i) the number of whole
shares of Buyer Common Stock and (ii) the cash in lieu of fractional shares
into which the shares of Company Common Stock represented by such
Certificate have been converted pursuant to this Section 1.4(a) and Section
2.2(e) hereof. Certificates previously representing shares of Company
Common Stock shall be exchanged for certificates representing whole shares
of Buyer Common Stock and cash in lieu of fractional shares issued in
consideration therefor upon the surrender of such Certificates in
accordance with Section 2.2 hereof, without any interest thereon. If,
between the date of this Agreement and the Effective Time, the shares of
Buyer Common Stock shall be changed into a different number or class of
shares by reason of any reclassification, recapitalization, spilt-up,
combination, exchange of shares or readjustment, or a stock dividend
thereon shall be declared with a record date within said period, the
Exchange Ratio shall be adjusted accordingly.
(b) At the Effective Time, all shares of Company Common
Stock that are owned by the Company as treasury stock, all shares of
Company Common Stock that are owned directly or indirectly by Buyer or the
Company or any of their respective Subsidiaries (other than shares of
Company Common Stock (x) held directly or indirectly in trust accounts,
managed accounts and the like or otherwise held in a fiduciary capacity for
the benefit of third parties (any such shares, and shares of Buyer Common
Stock which are similarly held, whether held directly or indirectly by
Buyer or the Company, as the case may be, being referred to herein as
"Trust Account Shares") and (y) held by Buyer or the Company or any of
their respective Subsidiaries in respect of a debt previously contracted
(any such shares of Company Common Stock, and shares of Buyer Common Stock
which are similarly held, whether held directly or indirectly by Buyer or
the Company, being referred to herein as "DPC Shares") and all unallocated
shares of Company Common Stock that are held in the Company's Recognition
and Retention Plans) shall be cancelled and shall cease to exist and no
stock of Buyer or other consideration shall be delivered in exchange
therefor. All shares of Buyer Common Stock that are owned by the Company or
any of its Subsidiaries (other than Trust Account Shares and DPC Shares)
shall become treasury stock of Buyer.
Section 1.5 Stock Options. At the Effective Time, each option
granted by the Company to purchase shares of Company Common Stock (a
"Company Option") which is outstanding and unexercised immediately prior
thereto shall cease to represent a right to acquire shares of Company
Common Stock and shall be converted automatically into an option to
purchase shares of Buyer Common Stock in an amount and at an exercise price
determined as provided below (and otherwise subject to the terms of the
Company's Amended and Restated 1996 Incentive Stock Option Plan, 1994
Incentive Stock Option Plan or Amended and Restated 1994 Stock Option Plan
for Outside Directors (collectively, the "Company Option Plans"), the
agreements evidencing grants thereunder, and any other agreements between
the Company and an optionee regarding Company Options):
(1) the number of shares of Buyer Common Stock to be
subject to the new option shall be equal to the product of the number
of shares of Company Common Stock subject to the original option and
the Exchange Ratio, provided that any fractional share of Buyer
Common Stock resulting from such multiplication shall be rounded down
to the nearest whole share; and
(2) the exercise price per share of Buyer Common Stock
under the new option shall be equal to the exercise price per share
of Company Common Stock under the original option divided by the
Exchange Ratio, provided that such exercise price shall be rounded up
to the nearest cent.
The adjustment provided herein with respect to any options which are
intended to be "incentive stock options" (as defined in Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code")) shall be and is
intended to be effected in a manner which is consistent with Section 424(a)
of the Code, and to the extent it is not so consistent, such Section 424(a)
shall override such adjustment. The duration and other terms of the new
option shall be the same as the original option, except that all references
to the Company shall be deemed to be references to Buyer, it being
understood that any option that is intended to be an incentive stock option
and which is exercised by the option holder more than 3 (three) months from
the date of the option holder's termination of employment from the Company
or its Subsidiaries or from Buyer or its Subsidiaries shall be treated as a
non-statutory option.
Section 1.6 Buyer Common Stock. Except for shares of Buyer
Common Stock owned by the Company or any of its Subsidiaries (other than
Trust Account Shares and DPC Shares), which shall be converted into
treasury stock of Buyer as contemplated by Section 1.4 hereof, the shares
of Buyer Common Stock issued and outstanding immediately prior to the
Effective Time shall be unaffected by the Merger and such shares shall
remain issued and outstanding.
Section 1.7 Certificate of Incorporation. At the Effective
Time, the Restated Certificate of Incorporation of Buyer, as in effect at
the Effective Time, shall be the Certificate of Incorporation of the
Surviving Corporation.
Section 1.8 By-Laws. At the Effective Time, the ByLaws of
Buyer, as in effect immediately prior to the Effective Time, shall be the
By-Laws of the Surviving Corporation until thereafter amended in accordance
with applicable law.
Section 1.9 Directors and Officers. Except as provided in
Section 7.14 hereof, the directors and officers of Buyer immediately prior
to the Effective Time shall be the directors and officers of the Surviving
Corporation, each to hold office in accordance with the Certificate of
Incorporation and By-Laws of the Surviving Corporation until their
respective successors are duly elected or appointed and qualified.
Section 1.10 Tax Consequences. It is intended that the Merger
shall constitute a reorganization within the meaning of Section 368(a) of
the Code, and that this Agreement shall constitute a "plan of
reorganization" for the purposes of Section 368 of the Code.
ARTICLE ARTICLE II
EXCHANGE OF SHARES
Section 2.1 Buyer to Make Shares Available. At or prior to the
Effective Time, Buyer shall deposit, or shall cause to be deposited, with a
bank or trust company (which may be a Subsidiary of Buyer) (the "Exchange
Agent") selected by Buyer and reasonably satisfactory to the Company, for
the benefit of the holders of Certificates, for exchange in accordance with
this Article II, certificates representing the shares of Buyer Common Stock
and the cash in lieu of fractional shares (such cash and certificates for
shares of Buyer Common Stock, together with any dividends or distributions
with respect thereto, being hereinafter referred to as the "Exchange Fund")
to be issued pursuant to Section 1.4 and paid pursuant to Section 2.2(a) in
exchange for outstanding shares of Company Common Stock.
Section 2.2 Exchange of Shares. (a) As soon as practicable
after the Effective Time, and in no event more than three business days
thereafter, the Exchange Agent shall mail to each holder of record of a
Certificate or Certificates a form letter of transmittal (which shall
specify that delivery shall be effected, and risk of loss and title to the
Certificates shall pass, only upon delivery of the Certificates to the
Exchange Agent) and instructions for use in effecting the surrender of the
Certificates in exchange for certificates representing the shares of Buyer
Common Stock and the cash in lieu of fractional shares into which the
shares of Company Common Stock represented by such Certificate or
Certificates shall have been converted pursuant to this Agreement. Upon
surrender of a Certificate for exchange and cancellation to the Exchange
Agent, together with such letter of transmittal, duly executed, the holder
of such Certificate shall be entitled to receive in exchange therefor (x) a
certificate representing that number of whole shares of Buyer Common Stock
to which such holder of Company Common Stock shall have become entitled
pursuant to the provisions of Article I hereof and (y) a check representing
the amount of cash in lieu of fractional shares, if any, which such holder
has the right to receive in respect of the Certificate surrendered pursuant
to the provisions of this Article II, and the Certificate so surrendered
shall forthwith be cancelled. No interest will be paid or accrued on the
cash in lieu of fractional shares and unpaid dividends and distributions,
if any, payable to holders of Certificates.
(b) No dividends or other distributions declared after
the Effective Time with respect to Buyer Common Stock and payable to the
holders of record thereof shall be paid to the holder of any unsurrendered
Certificate until the holder thereof shall surrender such Certificate in
accordance with this Article II. After the surrender of a Certificate in
accordance with this Article II, the record holder thereof shall be
entitled to receive any such dividends or other distributions, without any
interest thereon, which theretofore had become payable with respect to
shares of Buyer Common Stock represented by such Certificate. No holder of
an unsurrendered Certificate shall be entitled, until the surrender of such
Certificate, to vote the shares of Buyer Common Stock into which his
Company Common Stock shall have been converted.
(c) If any certificate representing shares of Buyer
Common Stock is to be issued in a name other than that in which the
Certificate surrendered in exchange therefor is registered, it shall be a
condition of the issuance thereof that the Certificate so surrendered shall
be properly endorsed (or accompanied by an appropriate instrument of
transfer) and otherwise in proper form for transfer, and that the person
requesting such exchange shall pay to the Exchange Agent in advance any
transfer or other taxes required by reason of the issuance of a certificate
representing shares of Buyer Common Stock in any name other than that of
the registered holder of the Certificate surrendered, or required for any
other reason, or shall establish to the satisfaction of the Exchange Agent
that such tax has been paid or is not payable.
(d) After the Effective Time, there shall be no transfers
on the stock transfer books of the Company of the shares of Company Common
Stock which were issued and outstanding immediately prior to the Effective
Time. If, after the Effective Time, Certificates representing such shares
are presented for transfer to the Exchange Agent, they shall be cancelled
and exchanged for certificates representing shares of Buyer Common Stock as
provided in this Article II.
(e) Notwithstanding anything to the contrary contained
herein, no certificates or scrip representing fractional shares of Buyer
Common Stock shall be issued upon the surrender for exchange of
Certificates, no dividend or distribution with respect to Buyer Common
Stock shall be payable on or with respect to any fractional share, and such
fractional share interests shall not entitle the owner thereof to vote or
to any other rights of a shareholder of Buyer. In lieu of the issuance of
any such fractional share, Buyer shall pay to each former stockholder of
the Company who otherwise would be entitled to receive a fractional share
of Buyer Common Stock an amount in cash determined by multiplying (i) the
average of the closing sale prices of Buyer Common Stock on the New York
Stock Exchange (the "NYSE") as reported by The Wall Street Journal for the
five trading days immediately preceding the date on which the Effective
Time shall occur by (ii) the fraction of a share of Buyer Common Stock to
which such holder would otherwise be entitled to receive pursuant to
Section 1.4 hereof.
(f) Any portion of the Exchange Fund that remains
unclaimed by the stockholders of the Company for six months after the
Effective Time shall be paid to Buyer. Any stockholders of the Company who
have not theretofore complied with this Article II shall thereafter look
only to Buyer for payment of their shares of Buyer Common Stock, cash in
lieu of fractional shares and unpaid dividends and distributions on the
Buyer Common Stock deliverable in respect of each share of Company Common
Stock such stockholder holds as determined pursuant to this Agreement, in
each case, without any interest thereon. Notwithstanding the foregoing,
none of Buyer, the Company, the Exchange Agent or any other person shall be
liable to any former holder of shares of Company Common Stock for any
amount properly delivered to a public official pursuant to applicable
abandoned property, escheat or similar laws.
(g) In the event any Certificate shall have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the
person claiming such Certificate to be lost, stolen or destroyed and, if
required by Buyer, the posting by such person of a bond in such amount as
Buyer may direct as indemnity against any claim that may be made against it
with respect to such Certificate, the Exchange Agent will issue in exchange
for such lost, stolen or destroyed Certificate the shares of Buyer Common
Stock and cash in lieu of fractional shares deliverable in respect thereof
pursuant to this Agreement.
ARTICLE ARTICLE III
DISCLOSURE SCHEDULES; STANDARDS
FOR REPRESENTATIONS AND WARRANTIES
Section 3.1 Disclosure Schedules. Prior to the execution and
delivery of this Agreement, the Company has delivered to Buyer, and Buyer
has delivered to the Company, a schedule (in the case of the Company, the
"Company Disclosure Schedule," and in the case of Buyer, the "Buyer
Disclosure Schedule") setting forth, among other things, items the
disclosure of which is necessary or appropriate either in response to an
express disclosure requirement contained in a provision hereof or as an
exception to one or more of such party's representations or warranties
contained in Article IV, in the case of the Company, or Article V, in the
case of Buyer, or to one or more of such party's covenants contained in
Article VI; provided, however, that notwithstanding anything in this
Agreement to the contrary (a) no such item is required to be set forth in
the Disclosure Schedule as an exception to a representation or warranty
(other than a representation or warranty contained in Sections 4.2, 4.3(a),
4.3(b)(i), 4.6, 4.7, 4.8(a)(ii), 4.8(b), 4.11(a), 4.12, 4.15(a), 4.18,
4.21, 4.26 and 4.27, with respect to the Company Disclosure Schedule, or
Sections 5.2, 5.3(a), 5.3(b), 5.3(c)(i), 5.6, 5.7, 5.8(ii), 5.11(a) 5.12
and 5.15, with respect to the Buyer Disclosure Schedule) if its absence
would not result in the related representation or warranty being deemed
untrue or incorrect under the standard established by Section 3.2, and (b)
the mere inclusion of an item in a Disclosure Schedule as an exception to a
representation or warranty shall not be deemed an admission by a party that
such item represents a material exception or material fact, event or
circumstance or that such item has had or is reasonably likely to have a
Material Adverse Effect (as defined herein) with respect to either the
Company or Buyer, respectively.
Section 3.2 Standards. (a) No representation or warranty of the
Company contained in Article IV (other than the representations and
warranties contained in Sections 4.2, 4.3(a), 4.3(b)(i), 4.6, 4.7,
4.8(a)(ii), 4.8(b), 4.11(a), 4.12, 4.15(a), 4.18, 4.21, 4.26 and 4.27) or
of Buyer contained in Article V (other than the representations and
warranties contained in Sections 5.2, 5.3(a), 5.3(b), 5.3(c)(i), 5.6, 5.7,
5.8(ii), 5.11(a), 5.12 and 5.15) shall be deemed untrue or incorrect for
any purpose under this Agreement, and no party hereto shall be deemed to
have breached any such representation or warranty for any purpose under
this Agreement, in any case as a consequence of the existence or absence of
any fact, circumstance or event unless such fact, circumstance or event,
individually or when taken together with all other facts, circumstances or
events inconsistent with any representations or warranties contained in
Article IV, in the case of the Company, or Article V, in the case of Buyer,
has had or is reasonably likely to have a Material Adverse Effect with
respect to the Company or Buyer, respectively.
(b) As used in this Agreement, the term "Material Adverse
Effect" means, with respect to Buyer or the Company, as the case may be, a
material adverse effect on (i) the business, assets, liabilities, results
of operations or financial condition of such party and its Subsidiaries
taken as a whole, other than any such effect attributable to or resulting
from (x) any change in banking or similar laws, rules or regulations of
general applicability or interpretations thereof by courts or governmental
authorities, (y) any change in GAAP (as defined herein) or regulatory
accounting principles, in each case which affects banks, thrifts or their
holding companies generally, except to the extent any such condition or
change affects the referenced party to a materially greater extent than
banks, thrifts or their holding companies generally, or (z) any change in
interest rates, provided, that any such change in interest rates shall not
affect the referenced party to a materially greater extent than banks,
thrifts or their holding companies generally, and provided further, that
any such change shall not have a materially adverse effect on the credit
quality of such party's assets, or (ii) the ability of such party and its
Subsidiaries to consummate the transactions contemplated hereby.
ARTICLE ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Subject to Article III hereof and except as set forth in the
Company Disclosure Schedule, the Company hereby represents and warrants to
Buyer as follows:
Section 4.1 Corporate Organization. (a) The Company is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware. The Company has the corporate power and
authority to own or lease all of its properties and assets and to carry on
its business as it is now being conducted, and is duly licensed or
qualified to do business in each jurisdiction in which the nature of the
business conducted by it or the character or location of the properties and
assets owned or leased by it makes such licensing or qualification
necessary. The Company is duly registered as a non-diversified unitary
savings and loan holding company under the Home Owners' Loan Act of 1933,
as amended. The Restated Certificate of Incorporation and By-laws of the
Company, copies of which have previously been made available to Buyer, are
true and correct copies of such documents as in effect as of the date of
this Agreement. As used in this Agreement, the word "Subsidiary" when used
with respect to any party means any corporation, partnership or other
organization, whether incorporated or unincorporated, which is consolidated
with such party for financial reporting purposes.
(b) Reliance Federal Savings Bank (the "Company Bank") is
a stock savings bank duly organized, validly existing and in good standing
under the laws of the United States of America. The deposit accounts of the
Company Bank are insured by the Federal Deposit Insurance Corporation (the
"FDIC") through the Savings Association Insurance Fund to the fullest
extent permitted by law, and all premiums and assessments required to be
paid in connection therewith have been paid when due. Each of the Company's
other Subsidiaries is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation or
organization. Each of the Company's Subsidiaries has the corporate power
and authority to own or lease all of its properties and assets and to carry
on its business as it is now being conducted and is duly licensed or
qualified to do business in each jurisdiction in which the nature of the
business conducted by it or the character or the location of the properties
and assets owned or leased by it makes such licensing or qualification
necessary. The articles of incorporation, by-laws and similar governing
documents of each Subsidiary of the Company, copies of which have
previously been made available to Buyer, are true and correct copies of
such documents as in effect as of the date of this Agreement.
(c) The minute books of the Company and each of its
Subsidiaries contain true and correct records of all meetings and other
corporate actions held or taken since December 31, 1996 of their respective
stockholders and Boards of Directors (including committees of their
respective Boards of Directors).
Section 4.2 Capitalization. (a) The authorized capital stock of
the Company consists of 20,000,000 shares of Company Common Stock and
4,000,000 shares of preferred stock, par value $.01 per share (the "Company
Preferred Stock"). As of the date of this Agreement, there are (x)
8,584,410 shares of Company Common Stock outstanding and 2,166,410 shares
of Company Common Stock held in the Company's treasury, (y) no shares of
Company Common Stock reserved for issuance upon exercise of outstanding
stock options or otherwise except for (i) 1,080,876 shares of Company
Common Stock reserved for issuance pursuant to the Company Option Plans and
described in Section 4.2(a) of the Company Disclosure Schedule, and (ii)
1,708,297 shares of Company Common Stock reserved for issuance upon
exercise of the option issued to Buyer pursuant to the Stock Option
Agreement, dated August 30, 1999, between Buyer and the Company (the
"Option Agreement") and (z) no shares of Company Preferred Stock issued or
outstanding, held in the Company's treasury or reserved for issuance upon
exercise of outstanding stock options or otherwise, except for 150,000
shares of Company Series A Junior Participating Preferred Stock reserved
for issuance upon exercise of the rights (the "Company Rights") distributed
to holders of Company Common Stock pursuant to the Stockholder Protection
Rights Agreement, dated September 18, 1996 between the Company and
Registrar and Transfer Co., as Rights Agent (the "Company Rights
Agreement"). All of the issued and outstanding shares of Company Common
Stock have been duly authorized and validly issued and are fully paid,
nonassessable and free of preemptive rights, with no personal liability
attaching to the ownership thereof. Except as referred to above or
reflected in Section 4.2(a) of the Company Disclosure Schedule, and except
for the Option Agreement, the Company does not have and is not bound by any
outstanding subscriptions, options, warrants, calls, commitments or
agreements of any character calling for the purchase or issuance of any
shares of Company Common Stock or Company Preferred Stock or any other
equity security of the Company or any securities representing the right to
purchase or otherwise receive any shares of Company Common Stock or any
other equity security of the Company. The names of the optionees, the date
of each option to purchase Company Common Stock granted, the number of
shares subject to each such option, the expiration date of each such
option, and the price at which each such option may be exercised under the
Company Option Plans are set forth in Section 4.2(a) of the Company
Disclosure Schedule.
(b) Section 4.2(b) of the Company Disclosure Schedule
sets forth a true and correct list of all of the Subsidiaries of the
Company. Except as set forth in Section 4.2(b) of the Company Disclosure
Schedule, the Company owns, directly or indirectly, all of the issued and
outstanding shares of the capital stock of each of such Subsidiaries, free
and clear of all liens, charges, encumbrances and security interests
whatsoever, and all of such shares are duly authorized and validly issued
and are fully paid, nonassessable and free of preemptive rights, with no
personal liability attaching to the ownership thereof. No Subsidiary of the
Company has or is bound by any outstanding subscriptions, options,
warrants, calls, commitments or agreements of any character calling for the
purchase or issuance of any shares of capital stock or any other equity
security of such Subsidiary or any securities representing the right to
purchase or otherwise receive any shares of capital stock or any other
equity security of such Subsidiary. Assuming compliance by Buyer with
Section 1.5 hereof, at the Effective Time, there will not be any
outstanding subscriptions, options, warrants, calls, commitments or
agreements of any character by which the Company or any of its Subsidiaries
will be bound calling for the purchase or issuance of any shares of the
capital stock of the Company or any of its Subsidiaries.
Section 4.3 Authority; No Violation. (a) The Company has full
corporate power and authority to execute and deliver this Agreement and the
Option Agreement (this Agreement and the Option Agreement, collectively,
the "Company Documents") and to consummate the transactions contemplated
hereby and thereby. The execution and delivery of each of the Company
Documents and the consummation of the transactions contemplated hereby and
thereby have been duly and validly approved by the Board of Directors of
the Company. The Board of Directors of the Company has directed that this
Agreement and the transactions contemplated hereby be submitted to the
Company's stockholders for approval at a meeting of such stockholders and,
except for the approval and adoption of this Agreement by the affirmative
vote of the holders of a majority of the outstanding shares of the Company
Common Stock, no other corporate proceedings on the part of the Company are
necessary to approve the Company Documents and to consummate the
transactions contemplated hereby and thereby. Each of the Company Documents
has been duly and validly executed and delivered by the Company, and
(assuming due authorization, execution and delivery by Buyer) this
Agreement constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as
enforcement may be limited by general principles of equity whether applied
in a court of law or a court of equity and by bankruptcy, insolvency and
similar laws affecting creditors' rights and remedies generally.
(b) Except as set forth in Section 4.3(b) of the Company
Disclosure Schedule, neither the execution and delivery of the Company
Documents by the Company, nor the consummation by the Company of the
transactions contemplated hereby, nor compliance by the Company with any of
the terms or provisions hereof, will (i) violate any provision of the
Certificate of Incorporation or By-Laws of the Company or the certificate
of incorporation, by-laws or similar governing documents of any of its
Subsidiaries, or (ii) assuming that the consents and approvals referred to
in Section 4.4 hereof are duly obtained, (x) violate any statute, code,
ordinance, rule, regulation, judgment, order, writ, decree or injunction
applicable to the Company or any of its Subsidiaries, or any of their
respective properties or assets, or (y) violate, conflict with, result in a
breach of any provision of or the loss of any benefit under, constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, result in the termination of or a right of
termination or cancellation under, accelerate the performance required by,
or result in the creation of any lien, pledge, security interest, charge or
other encumbrance upon any of the respective properties or assets of the
Company or any of its Subsidiaries under, any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, deed of trust, license,
lease, agreement or other instrument or obligation to which the Company or
any of its Subsidiaries is a party, or by which they or any of their
respective properties or assets may be bound or affected.
Section 4.4 Consents and Approvals. Except for (a) the filing
of an application with the Board of Governors of the Federal Reserve System
(the "Federal Reserve Board") under the Bank Holding Company Act of 1956,
as amended (the "BHC Act") and approval of such application, (b) the filing
of an application with the FDIC under the Bank Merger Act and approval of
such application, in the event the parties enter into the Bank Merger
Agreement (as defined in Section 7.12) (c) the filing of applications and
notices, as applicable, with the Office of Thrift Supervision (the "OTS")
and approval of such applications and notices, (d) the filing of an
application with the New York State Banking Department (the "Banking
Department") and the approval of such application, (e) the filing with the
Securities and Exchange Commission (the "SEC") of a proxy statement in
definitive form relating to the meeting of the Company's stockholders to be
held in connection with this Agreement and the transactions contemplated
hereby (the "Proxy Statement") and the filing and declaration of
effectiveness of the registration statement on Form S-4 (the "S-4") in
which the Proxy Statement will be included as a prospectus, (f) the
approval of this Agreement by the requisite vote of the stockholders of the
Company, (g) the filing of the Certificate of Merger with the Secretary
pursuant to the DGCL, (h) such filings and approvals as are required to be
made or obtained under the securities or "Blue Sky" laws of various states
in connection with the issuance of the shares of Buyer Common Stock
pursuant to this Agreement, (i) approval of the listing of the Buyer Common
Stock to be issued in the Merger on the NYSE, and (j) such filings,
authorizations or approvals as may be set forth in Section 4.4 of the
Company Disclosure Schedule, no consents or approvals of or filings or
registrations with any court, administrative agency or commission or other
governmental authority or instrumentality (each a "Governmental Entity") or
with any third party are necessary in connection with the execution and
delivery by the Company of the Company Documents or the consummation by the
Company of the Merger and the other transactions contemplated hereby and
thereby.
Section 4.5 Reports. The Company and each of its Subsidiaries
have timely filed all reports, registrations and statements, together with
any amendments required to be made with respect thereto, that they were
required to file since December 31, 1996 with (i) the OTS, (ii) the FDIC,
(iii) any state banking commissions or any other state regulatory authority
(each a "State Regulator") and (iv) any other self-regulatory organization
("SRO") (collectively, with the Federal Reserve Board, the "Regulatory
Agencies"), and have paid all fees and assessments due and payable in
connection therewith. Except for normal examinations conducted by a
Regulatory Agency in the regular course of the business of the Company and
its Subsidiaries, and except as set forth in Section 4.5 of the Company
Disclosure Schedule, no Regulatory Agency has initiated any proceeding or,
to the knowledge of the Company, investigation into the business or
operations of the Company or any of its Subsidiaries since December 31,
1996. There is no unresolved violation, criticism, or exception by any
Regulatory Agency with respect to any report or statement relating to any
examinations of the Company or any of its Subsidiaries.
Section 4.6 Financial Statements. The Company has previously
made available to Buyer copies of (a) the consolidated statements of
condition of the Company and its Subsidiaries as of June 30 for the fiscal
years 1997 and 1998, and the related consolidated statements of income,
changes in stockholders' equity and cash flows for the fiscal years 1996
through 1998, inclusive, as reported in the Company's Annual Report on Form
10- K for the fiscal year ended June 30, 1998 filed with the SEC under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), in each
case accompanied by the audit report of KPMG LLP, independent public
accountants with respect to the Company, (b) the unaudited consolidated
statements of condition of the Company and its Subsidiaries as of March 31,
1998 and March 31, 1999 and the related unaudited consolidated statements
of income, cash flows and changes in stockholders' equity for the
nine-month periods then ended as reported in the Company's Quarterly Report
on Form 10-Q for the period ended March 31, 1999 filed with the SEC under
the Exchange Act, and (c) the consolidated statements of condition of the
Company and its Subsidiaries as of June 30 for the fiscal years 1998 and
1999, and the related consolidated statements of income, changes in
stockholders' equity and cash flows for the fiscal years 1997 through 1999,
inclusive, as reported in the draft of the Company's Annual Report for the
fiscal year ended June 30, 1999 to be filed with the SEC (the "Draft
Financials"). The June 30, 1998 and June 30, 1999 consolidated statements
of condition of the Company (including the related notes, where applicable)
fairly present the consolidated financial position of the Company and its
Subsidiaries as of the dates thereof, and the other financial statements
referred to in this Section 4.6 (including the related notes, where
applicable) fairly present, and the financial statements to be filed by the
Company with the SEC after the date of this Agreement will fairly present
(subject, in the case of the unaudited statements, to recurring audit
adjustments normal in nature and amount), the results of the consolidated
operations and consolidated financial position of the Company and its
Subsidiaries for the respective fiscal periods or as of the respective
dates therein set forth; each of such statements (including the related
notes, where applicable) complies, and the financial statements to be filed
by the Company with the SEC after the date of this Agreement will comply,
with applicable accounting requirements and with the published rules and
regulations of the SEC with respect thereto; and each of such statements
(including the related notes, where applicable) has been, and the financial
statements to be filed by the Company with the SEC after the date of this
Agreement will be, prepared in accordance with generally accepted
accounting principles ("GAAP") consistently applied during the periods
involved, except as indicated in the notes thereto or, in the case of
unaudited statements, as permitted by Form 10-Q. The books and records of
the Company and its Subsidiaries have been, and are being, maintained in
accordance with GAAP and any other applicable legal and accounting
requirements and reflect only actual transactions. Section 4.6 of the
Company Disclosure Schedule sets forth a true and correct description of
the Company's "Borrowed Funds" as reflected in the Draft Financials.
Section 4.7 Broker's Fees. Neither the Company nor any
Subsidiary of the Company nor any of their respective officers or directors
has employed any broker or finder or incurred any liability for any
broker's fees, commissions or finder's fees in connection with any of the
transactions contemplated by the Company Documents, except that the Company
has engaged, and will pay a fee or commission to, Sandler, X'Xxxxx &
Partners, L.P. ("Sandler X'Xxxxx") in accordance with the terms of a letter
agreement between Sandler X'Xxxxx and the Company, a true and correct copy
of which has been previously delivered by the Company to Buyer.
Section 4.8 Absence of Certain Changes or Events. (a) Except as
may be set forth in Section 4.8(a) of the Company Disclosure Schedule or as
disclosed in any Company Report filed with the SEC prior to the date of
this Agreement, since June 30, 1998, (i) neither the Company nor any of its
Subsidiaries has incurred any liability, except in the ordinary course of
their business consistent with their past practices, and (ii) there has
been no change or development or combination of changes or developments
which has had, or is reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on the Company.
(b) Except as set forth in Section 4.8(b) of the Company
Disclosure Schedule or as disclosed in any Company Report filed with the
SEC prior to the date of this Agreement, since June 30, 1998, the Company
and its Subsidiaries have carried on their respective businesses in the
ordinary course consistent with their past practices.
(c) Except as set forth in Section 4.8(c) of the Company
Disclosure Schedule, since June 30, 1999, neither the Company nor any of
its Subsidiaries has (i) increased the wages, salaries, compensation,
pension, or other fringe benefits or perquisites payable to any executive
officer, employee, or director from the amount thereof in effect as of June
30, 1999 (which amounts have been previously disclosed to Buyer), granted
any severance or termination pay, entered into any contract to make or
grant any severance or termination pay, or paid any bonus, (ii) suffered
any strike, work stoppage, slow-down, or other labor disturbance, (iii)
been a party to a collective bargaining agreement, contract or other
agreement or understanding with a labor union or organization, or (iv) had
any union organizing activities.
Section 4.9 Legal Proceedings. (a) Except as set forth in
Section 4.9 of the Company Disclosure Schedule, neither the Company nor any
of its Subsidiaries is a party to any, and there are no pending or, to the
Company's knowledge, threatened, legal, administrative, arbitral or other
proceedings, claims, actions or governmental or regulatory investigations
of any nature against the Company or any of its Subsidiaries or challenging
the validity or propriety of the transactions contemplated by any of the
Company Documents.
(b) There is no injunction, order, judgment, decree, or
regulatory restriction imposed upon the Company, any of its Subsidiaries or
the assets of the Company or any of its Subsidiaries.
Section 4.10 Taxes. (a) Except as set forth in Section 4.10(a)
of the Company Disclosure Schedule, each of the Company and its
Subsidiaries has (i) duly and timely filed (including applicable extensions
granted without penalty) all Tax Returns (as hereinafter defined) required
to be filed at or prior to the Effective Time, and such Tax Returns are
true and correct, and (ii) paid in full or made adequate provision in the
financial statements of the Company (in accordance with GAAP) for all Taxes
(as hereinafter defined). No deficiencies for any Taxes have been proposed,
asserted, assessed or, to the knowledge of the Company, threatened against
or with respect to the Company or any of its Subsidiaries. Except as set
forth in Section 4.10(a) of the Company Disclosure Schedule, (i) there are
no liens for Taxes upon the assets of either the Company or its
Subsidiaries except for statutory liens for current Taxes not yet due, (ii)
neither the Company nor any of its Subsidiaries has requested any extension
of time within which to file any Tax Returns in respect of any fiscal year
which have not since been filed and no request for waivers of the time to
assess any Taxes are pending or outstanding, (iii) with respect to each
taxable period of the Company and its Subsidiaries, the federal and state
income Tax Returns of the Company and its Subsidiaries have been audited by
the Internal Revenue Service or appropriate state tax authorities or the
time for assessing and collecting income Tax with respect to such taxable
period has closed and such taxable period is not subject to review, (iv)
neither the Company nor any of its Subsidiaries has filed or been included
in a combined, consolidated or unitary income Tax Return other than one in
which the Company was the parent of the group filing such Tax Return, (v)
neither the Company nor any of its Subsidiaries is a party to any agreement
providing for the allocation or sharing of Taxes (other than the allocation
of federal income taxes as provided by Regulation 1.1552-1(a)(1) under the
Code), (vi) neither the Company nor any of its Subsidiaries is required to
include in income any adjustment pursuant to Section 481(a) of the Code (or
any similar or corresponding provision or requirement of state, local or
foreign income Tax law), by reason of the voluntary change in accounting
method (nor has any taxing authority proposed any such adjustment or change
of accounting method), (vii) neither the Company nor any of its
Subsidiaries has filed a consent pursuant to Section 341(f) of the Code,
and (viii) neither the Company nor any of its Subsidiaries has made any
payment or provided any benefit or may be obligated to make any payment or
provide any benefit (by contract or otherwise) which will not be deductible
by reason of Section 280G or Section 162(m) of the Code.
(b) Except as set forth in Section 4.10(b) of the Company
Disclosure Schedule, neither the Company nor any of its Subsidiaries owns,
directly or indirectly (including, without limitation, through
partnerships, corporations, trusts or other entities), interests in real
property ("Real Property Interests") situated in (A) New York State, which
by reason of the Merger would be subject to either (i) the New York State
Real Property Transfer Tax, or (ii) the New York City Real Property
Transfer Tax (collectively, the "New York Transfer Taxes"), or (B) any
state other than New York State which by reason of the Merger would be
subject to any tax similar to the New York Transfer Taxes. For purposes of
this Section 4.10(b), Real Property Interests include, without limitation,
titles in fee, leasehold interests, beneficial interests, encumbrances,
developments rights or any other interests with the right to use or occupy
real property or the right to receive rents, profits or other income
derived therefrom, or any options or contracts to purchase real property.
(c) For the purposes of this Agreement, "Taxes" shall
mean all taxes, charges, fees, levies, penalties or other assessments
imposed by any United States federal, state, local or foreign taxing
authority, including, but not limited to income, excise, property, sales,
transfer, franchise, payroll, withholding, social security or other taxes,
including any interest, penalties or additions attributable thereto. For
purposes of this Agreement, "Tax Return" shall mean any return, report,
information return or other document (including any related or supporting
information) with respect to Taxes.
Section 4.11 Employees. (a) Section 4.11(a) of the Company
Disclosure Schedule sets forth a true and correct list of each deferred
compensation plan, incentive compensation plan, equity compensation plan,
"welfare" plan, fund or program (within the meaning of Section 3(1) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"));
"pension" plan, fund or program (within the meaning of Section 3(2) of
ERISA); each employment, termination or severance agreement; and each other
employee benefit plan, fund, program, agreement or arrangement, in each
case, that is sponsored, maintained or contributed to or required to be
contributed to (the "Plans") by the Company, any of its Subsidiaries or by
any trade or business, whether or not incorporated (an "ERISA Affiliate"),
all of which together with the Company would be deemed a "single employer"
within the meaning of Section 4001 of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), for the benefit of any employee
or former employee of the Company or any Subsidiary.
(b) The Company has heretofore made available to Buyer
true and correct copies of each of the Plans and all related documents,
including but not limited to (i) the actuarial report for such Plan (if
applicable) for each of the last two years, and (ii) the most recent
determination letter from the Internal Revenue Service (if applicable) for
such Plan.
(c) Except as set forth in Section 4.11(c) of the Company
Disclosure Schedule, (i) each of the Plans has been operated and
administered in all material respects in accordance with its terms and
applicable law, including but not limited to ERISA and the Code, (ii) each
of the Plans intended to be "qualified" within the meaning of Section
401(a) of the Code either (1) has received a favorable determination letter
from the IRS, or (2) is or will be the subject of an application for a
favorable determination letter, and the Company is not aware of any
circumstances likely to result in the revocation or denial of any such
favorable determination letter, (iii) with respect to each Plan which is
subject to Title IV of ERISA, the present value of accrued benefits under
such Plan, based upon the actuarial assumptions used for funding purposes
in the most recent actuarial report prepared by such Plan's actuary with
respect to such Plan, did not, as of its latest valuation date, exceed the
then current value of the assets of such Plan allocable to such accrued
benefits, (iv) no Plan provides benefits, including without limitation
death or medical benefits (whether or not insured), with respect to current
or former employees of the Company, its Subsidiaries or any ERISA Affiliate
beyond their retirement or other termination of service, other than (w)
coverage mandated by applicable law, (x) death benefits or retirement
benefits under any "employee pension plan," as that term is defined in
Section 3(2) of ERISA, (y) deferred compensation benefits accrued as
liabilities on the books of the Company, its Subsidiaries or the ERISA
Affiliates or (z) benefits the full cost of which is borne by the current
or former employee (or his beneficiary), (v) no liability under Title IV of
ERISA has been incurred by the Company, its Subsidiaries or any ERISA
Affiliate that has not been satisfied in full, and no condition exists that
presents a material risk to the Company, its Subsidiaries or an ERISA
Affiliate of incurring a material liability thereunder, (vi) no Plan is a
"multiemployer pension plan," as such term is defined in Section 3(37) of
ERISA, (vii) all contributions or other amounts payable by the Company, its
Subsidiaries or any ERISA Affiliates as of the Effective Time with respect
to each Plan in respect of current or prior plan years have been paid or
accrued in accordance with generally accepted accounting practices and
Section 412 of the Code, (viii) neither the Company, its Subsidiaries nor
any ERISA Affiliate has engaged in a transaction in connection with which
the Company, its Subsidiaries or any ERISA Affiliate could be subject to
either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA
or a tax imposed pursuant to Section 4975 or 4976 of the Code, (ix) there
are no pending, or, to the best knowledge of the Company, threatened or
anticipated claims or proceedings (other than routine claims for benefits)
by, on behalf of or against any of the Plans or any trusts related thereto
and (x) the consummation of the transactions contemplated by this Agreement
will not (y) entitle any current or former employee or officer of the
Company or any ERISA Affiliate to severance pay, termination pay or any
other payment or benefit, except as expressly provided in this Agreement or
(z) accelerate the time of payment or vesting or increase the amount or
value of compensation or benefits due any such employee or officer.
Section 4.12 SEC Reports. The Company has previously made
available to Buyer a true and correct copy of each (a) final registration
statement, prospectus, report, schedule and definitive proxy statement
filed since January 1, 1997 by the Company with the SEC pursuant to the
Securities Act of 1933, as amended (the "Securities Act") or the Exchange
Act (the "Company Reports") and (b) communication mailed by the Company to
its stockholders since January 1, 1997, and no such registration statement,
prospectus, report, schedule, proxy statement or communication contained
any untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances in which they were made,
not misleading. The Company has timely filed all Company Reports and other
documents required to be filed by it under the Securities Act and the
Exchange Act, and, as of their respective dates, all Company Reports
complied with the published rules and regulations of the SEC with respect
thereto.
Section 4.13 Company Information. The information relating to
the Company and its Subsidiaries which is provided to Buyer by the Company
or any of its affiliates or representatives for inclusion in the Proxy
Statement and the S-4, or in any other document filed with any other
regulatory agency in connection herewith, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in light of the circumstances in which they
are made, not misleading. The Proxy Statement (except for such portions
thereof that relate only to Buyer or any of its Subsidiaries) will comply
with the provisions of the Exchange Act and the rules and regulations
thereunder.
Section 4.14 Compliance with Applicable Law. The Company and
each of its Subsidiaries hold, and have at all times held, all licenses,
franchises, permits and authorizations necessary for the lawful conduct of
their respective businesses under and pursuant to all, and have complied
with and are not in default in any respect under any, applicable law,
statute, order, rule, regulation, policy and/or guideline of any
Governmental Entity relating to the Company or any of its Subsidiaries, and
neither the Company nor any of its Subsidiaries knows of, or has received
notice of, any violations of any of the above.
Section 4.15 Certain Contracts. (a) Except as set forth in
Section 4.15(a) of the Company Disclosure Schedule, neither the Company nor
any of its Subsidiaries is a party to or bound by any contract,
arrangement, commitment or understanding (whether written or oral) (i) with
respect to the employment of any directors, officers, employees or
consultants, (ii) which, upon the consummation of the transactions
contemplated by this Agreement, will (either alone or upon the occurrence
of any additional acts or events) result in any payment or benefits
(whether of severance pay or otherwise) becoming due, or any increase in
the amount of or acceleration or vesting of any rights to any payment or
benefits, from Buyer, the Company, the Surviving Corporation or any of
their respective Subsidiaries to any director, officer, employee or
consultant thereof, (iii) which is a material contract (as defined in Item
601(b)(10) of Regulation S-K of the SEC) to be performed after the date of
this Agreement that has not been filed or incorporated by reference in the
Company Reports, (iv) which is a consulting agreement (including data
processing, software programming and licensing contracts) not terminable on
60 days or less notice involving the payment of more than $100,000 per
annum, or (v) which materially restricts the conduct of any line of
business by the Company or any of its Subsidiaries. Each contract,
arrangement, commitment or understanding of the type described in this
Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company
Disclosure Schedule, is referred to herein as a "Company Contract." The
Company has previously delivered or made available to Buyer true and
correct copies of each Company Contract.
(b) Except as set forth in Section 4.15(b) of the Company
Disclosure Schedule, (i) each Company Contract is valid and binding and in
full force and effect, (ii) the Company and each of its Subsidiaries has
performed all obligations required to be performed by it to date under each
Company Contract, (iii) no event or condition exists which constitutes or,
after notice or lapse of time or both, would constitute, a default on the
part of the Company or any of its Subsidiaries under any Company Contract,
and (iv) no other party to such Company Contract is, to the knowledge of
the Company, in default in any respect thereunder.
Section 4.16 Agreements with Regulatory Agencies. Except as set
forth in Section 4.16 of the Company Disclosure Schedule, neither the
Company nor any of its Subsidiaries is subject to any cease-and-desist or
other order issued by, or is a party to any written agreement, consent
agreement or memorandum of understanding with, or is a party to any
commitment letter or similar undertaking to, or is subject to any order or
directive by, or is a recipient of any extraordinary supervisory letter
from, or has adopted any board resolutions at the request of (each, whether
or not set forth on Section 4.16 of the Company Disclosure Schedule, a
"Regulatory Agreement"), any Regulatory Agency or other Governmental Entity
that restricts the conduct of its business or that in any manner relates to
its capital adequacy, its credit policies, its management or its business,
nor has the Company or any of its Subsidiaries been advised by any
Regulatory Agency or other Governmental Entity that it is considering
issuing or requesting any Regulatory Agreement.
Section 4.17 Investment Securities. Section 4.17 of the Company
Disclosure Schedule sets forth the book and market value as of July 31,
1999 of the investment securities, mortgage backed securities and
securities held for sale of the Company and its Subsidiaries. Section 4.17
of the Company Disclosure Schedule sets forth, with respect to such
securities, descriptions thereof, CUSIP numbers, pool face values and
coupon rates.
Section 4.18 State Takeover Laws; Business Combination
Provision. The Board of Directors of the Company has approved the
transactions contemplated by this Agreement and the Option Agreement such
that the provisions of Section 203 of the DGCL and Article VIII of the
Company's Certificate of Incorporation will not, assuming the accuracy of
the representations contained in Section 5.15 hereof, apply to this
Agreement or the Option Agreement or any of the transactions contemplated
hereby or thereby.
Section 4.19 Environmental Matters. Except as set
forth in Section 4.19 of the Company Disclosure Schedule:
(a) Each of the Company and its Subsidiaries and, to the
knowledge of the Company, each of the Participation Facilities and the Loan
Properties (each as hereinafter defined) are and have been in compliance
with all applicable federal, state and local laws including common law,
regulations and ordinances and with all applicable decrees, orders and
contractual obligations relating to pollution or the discharge of, or
exposure to Hazardous Materials (as hereinafter defined) in the environment
or workplace ("Environmental Laws");
(b) There is no suit, claim, action or proceeding,
pending or, to the knowledge of the Company, threatened, before any
Governmental Entity or other forum in which the Company, any of its
Subsidiaries, any Participation Facility or any Loan Property, has been or,
with respect to threatened proceedings, may be, named as a defendant (x)
for alleged noncompliance (including by any predecessor), with any
Environmental Laws, or (y) relating to the release, threatened release or
exposure to any Hazardous Material whether or not occurring at or on a site
owned, leased or operated by the Company or any of its Subsidiaries, any
Participation Facility or any Loan Property;
(c) During the period of (x) the Company's or any of its
Subsidiaries' ownership or operation of any of their respective current or
former properties, (y) the Company's or any of its Subsidiaries'
participation in the management of any Participation Facility, or (z) to
the knowledge of the Company, the Company's or any of its Subsidiaries'
interest in a Loan Property, there has been no release of Hazardous
Materials in, on, under or affecting any such property. To the knowledge of
the Company, prior to the period of (x) the Company's or any of its
Subsidiaries' ownership or operation of any of their respective current or
former properties, (y) the Company's or any of its Subsidiaries'
participation in the management of any Participation Facility, or (z) the
Company's or any of its Subsidiaries' interest in a Loan Property, there
was no release or threatened release of Hazardous Materials in, on, under
or affecting any such property, Participation Facility or Loan Property;
and
(d) The following definitions apply for purposes of this
Section 4.19: (x) "Hazardous Materials" means any chemicals, pollutants,
contaminants, wastes, toxic substances, petroleum or other regulated
substances or materials, (y) "Loan Property" means any property in which
the Company or any of its Subsidiaries holds a security interest, and,
where required by the context, said term means the owner or operator of
such property; and (z) "Participation Facility" means any facility in which
the Company or any of its Subsidiaries participates in the management and,
where required by the context, said term means the owner or operator of
such property.
Section 4.20 Derivative Transactions. Except as set forth in
Section 4.20 of the Company Disclosure Schedule, since June 30, 1998,
neither Company nor any of its Subsidiaries has engaged in transactions in
or involving forwards, futures, options on futures, swaps or other
derivative instruments except (i) as agent on the order and for the account
of others, or (ii) as principal for purposes of hedging interest rate risk
on U.S. dollar-denominated securities and other financial instruments. None
of the counterparties to any contract or agreement with respect to any such
instrument is in default with respect to such contract or agreement and no
such contract or agreement, were it to be a Loan (as defined below) held by
the Company or any of its Subsidiaries, would be classified as "Other Loans
Specially Mentioned", "Special Mention", "Substandard", "Doubtful", "Loss",
"Classified", "Criticized", "Credit Risk Assets", "Concerned Loans" or
words of similar import. The financial position of the Company and its
Subsidiaries on a consolidated basis under or with respect to each such
instrument has been reflected in the books and records of the Company and
such Subsidiaries in accordance with GAAP consistently applied, and no open
exposure of the Company or any of its Subsidiaries with respect to any such
instrument (or with respect to multiple instruments with respect to any
single counterparty) exceeds $250,000.
Section 4.21 Opinion. Prior to the execution of this Agreement,
the Company has received an opinion from Sandler X'Xxxxx to the effect that
as of the date thereof and based upon and subject to the matters set forth
therein, the Exchange Ratio is fair to the stockholders of the Company from
a financial point of view. Such opinion has not been amended or rescinded
as of the date of this Agreement.
Section 4.22 Approvals. As of the date of this Agreement, the
Company knows of no reason why all regulatory approvals required for the
consummation of the transactions contemplated hereby should not be
obtained.
Section 4.23 Loan Portfolio. (a) Except as set forth in Section
4.23 of the Company Disclosure Schedule, neither the Company nor any of its
Subsidiaries is a party to any written or oral (i) loan agreement, note or
borrowing arrangement (including, without limitation, leases, credit
enhancements, commitments, guarantees and interest-bearing assets)
(collectively, "Loans"), other than any Loan the unpaid principal balance
of which does not exceed $100,000, under the terms of which the obligor
was, as of June 30, 1999, over 90 days delinquent in payment of principal
or interest or in default of any other provision, or (ii) Loan with any
director, executive officer or five percent or greater stockholder of the
Company or any of its Subsidiaries, or to the knowledge of the Company, any
person, corporation or enterprise controlling, controlled by or under
common control with any of the foregoing. Section 4.23 of the Company
Disclosure Schedule sets forth (i) all of the Loans in original principal
amount in excess of $100,000 of the Company or any of its Subsidiaries that
as of June 30, 1999, were classified by any bank examiner (whether
regulatory or internal) as "Other Loans Specially Mentioned", "Special
Mention", "Substandard", "Doubtful", "Loss", "Classified", "Criticized",
"Credit Risk Assets", "Concerned Loans", "Watch List" or words of similar
import, together with the principal amount of and accrued and unpaid
interest on each such Loan and the identity of the borrower thereunder,
(ii) by category of Loan (i.e., commercial, consumer, etc.), all of the
other Loans of the Company and its Subsidiaries that as of June 30, 1999,
were classified as such, together with the aggregate principal amount of
and accrued and unpaid interest on such Loans by category and (iii) each
asset of the Company that as of June 30, 1999, was classified as "Other
Real Estate Owned" and the book value thereof. The Company shall
promptly inform Buyer in writing of any Loan that becomes classified in the
manner described in the previous sentence, or any Loan the classification
of which is changed, at any time after the date of this Agreement.
(b) Each Loan in original principal amount in excess of
$250,000 (i) is evidenced by notes, agreements or other evidences of
indebtedness which are true, genuine and what they purport to be, (ii) to
the extent secured, has been secured by valid liens and security interests
which have been perfected and (iii) is the legal, valid and binding
obligation of the obligor named therein, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent conveyance and other
laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
Section 4.24 Property. Each of the Company and its Subsidiaries
has good and marketable title free and clear of all liens, encumbrances,
mortgages, pledges, charges, defaults or equitable interests to all of the
properties and assets, real and personal, tangible or intangible, which are
reflected on the consolidated statement of financial condition of the
Company as of June 30, 1999 or acquired after such date, except (i) liens
for taxes not yet due and payable or contested in good faith by appropriate
proceedings, (ii) pledges to secure deposits and other liens incurred in
the ordinary course of business, (iii) such imperfections of title,
easements and encumbrances, if any, as do not interfere with the use of the
property as such property is used on the date of this Agreement, (iv) for
dispositions and encumbrances of, or on, such properties or assets in the
ordinary course of business or (v) mechanics', materialmen's, workmen's,
repairmen's, warehousemen's, carrier's and other similar liens and
encumbrances arising in the ordinary course of business. All leases
pursuant to which the Company or any Subsidiary of the Company, as lessee,
leases real or personal property are valid and enforceable in accordance
with their respective terms and neither the Company nor any of its
Subsidiaries nor, to the knowledge of the Company, any other party thereto
is in default thereunder.
Section 4.25 Reorganization. As of the date of this Agreement,
the Company has no reason to believe that the Merger will fail to qualify
as a reorganization under Section 368(a) of the Code.
Section 4.26 Company Rights Agreement. The Company has (a) duly
entered into an appropriate amendment to the Company Rights Agreement and
(b) taken all other action necessary or appropriate, in each case so that
the execution of this Agreement and the Option Agreement and the
consummation of the transactions contemplated hereby and thereby
(including, without limitation, the Merger) do not and will not result in
the ability of any person to exercise any rights under the Company Rights
Agreement or enable or require the Company Rights to separate from the
shares of Company Common Stock to which they are attached or to be
triggered or become exercisable.
Section 4.27 Equity and Real Estate Investments. Except as set
forth in Section 4.27 of the Company Disclosure Schedule, neither the
Company nor any of its Subsidiaries has (i) equity investments other than
investments in wholly owned Subsidiaries or (ii) investments in real estate
or real estate development projects, other than assets classified as "other
real estate owned."
Section 4.28 Year 2000 Matters. Section 4.28 of the Company
Disclosure Schedule contains a true and correct copy of the Company's plan
for addressing year 2000 computer issues (the "Year 2000 Plan"). The
Company is in material compliance with the Company's Year 2000 Plan. The
Company has been examined by the OTS with respect to being "Year 2000
Compliant" and the Company's Year 2000 Plan has been reviewed by the OTS
and the Company has received a "satisfactory" rating in connection
therewith, and neither the Company nor the Company Bank has received any
written communication from the OTS commenting adversely with respect to the
ability of the Company to become Year 2000 compliant.
ARTICLE ARTICLE V
REPRESENTATIONS AND WARRANTIES
OF BUYER
Subject to Article III hereof and except as set forth in the
Buyer Disclosure Schedule, Buyer hereby represents and warrants to the
Company as follows:
Section 5.1 Corporate Organization. (a) Buyer is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware. Buyer has the corporate power and authority to own or
lease all of its properties and assets and to carry on its business as it
is now being conducted, and is duly licensed or qualified to do business in
each jurisdiction in which the nature of the business conducted by it or
the character or location of the properties and assets owned or leased by
it makes such licensing or qualification necessary. Buyer is duly
registered as a bank holding company under the BHC Act. The Restated
Certificate of Incorporation and By-laws of Buyer, copies of which have
previously been made available to the Company, are true and correct copies
of such documents as in effect as of the date of this Agreement.
(b) North Fork Bank ("Buyer Bank") is a commercial bank
duly organized, validly existing and in good standing under the laws of the
State of New York. The deposit accounts of Buyer Bank are insured by the
FDIC through the Bank Insurance Fund to the fullest extent permitted by
law, and all premiums and assessments required in connection therewith have
been paid when due. Each of Buyer's other Subsidiaries is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation. Each Subsidiary of Buyer has the
corporate power and authority to own or lease all of its properties and
assets and to carry on its business as it is now being conducted, and is
duly licensed or qualified to do business in each jurisdiction in which the
nature of the business conducted by it or the character or location of the
properties and assets owned or leased by it makes such licensing or
qualification necessary. The articles of organization and by-laws of Buyer
Bank, copies of which have previously been made available to the Company,
are true and correct copies of such documents as in effect as of the date
of this Agreement.
(c) The minute books of Buyer and each of its
Subsidiaries contain true and correct records of all meetings and other
corporate actions held or taken since December 31, 1996 of their respective
stockholders and Boards of Directors (including committees of their
respective Boards of Directors).
Section 5.2 Capitalization. (a) As of the date of this
Agreement, the authorized capital stock of Buyer consists of 200,000,000
shares of Buyer Common Stock and 10,000,000 shares of preferred stock, par
value $1.00 per share ("Buyer Preferred Stock"). As of August 23, 1999, (i)
135,802,670 shares of Buyer Common Stock were issued and outstanding, (ii)
no shares of Buyer Preferred Stock were issued and outstanding, (iii) no
shares of Buyer Common Stock were reserved for issuance, except that
2,000,000 shares of Buyer Common Stock were reserved for issuance pursuant
to the Buyer Dividend Investment and Stock Purchase Plan, 1,973,140 shares
of Buyer Common Stock were reserved for issuance pursuant to the Buyer 1985
Incentive Stock Option Plan, the Buyer 1987 Long-Term Incentive Plan, the
Buyer 1989 Executive Management and Compensation Plan, the Buyer 1994 Key
Employee Stock Plan, the Buyer 1997 Non-Officer Stock Plan and the Buyer
1998 Stock Compensation Plan (the "Buyer Stock Plans"), and 31,000,000
shares of Buyer Common Stock were reserved for issuance pursuant to the
Agreement and Plan of Merger, dated as of August 16, 1999, between Buyer
and JSB Financial, Inc., (iv) no shares of Buyer Preferred Stock were
reserved for issuance and (v) 9,323,852 shares of Buyer Common Stock were
held by Buyer in its treasury or by Buyer's Subsidiaries. All of the issued
and outstanding shares of Buyer Common Stock have been duly authorized and
validly issued and are fully paid, nonassessable and free of preemptive
rights, with no personal liability attaching to the ownership thereof. As
of the date of this Agreement, except as referred to above or reflected in
Section 5.2(a) of the Buyer Disclosure Schedule, Buyer does not have and is
not bound by any outstanding subscriptions, options, warrants, calls,
commitments or agreements of any character calling for the purchase or
issuance of any shares of Buyer Common Stock or Buyer Preferred Stock or
any other equity securities of Buyer or any securities representing the
right to purchase or otherwise receive any shares of Buyer Common Stock or
Buyer Preferred Stock or any other equity security of the Buyer. The shares
of Buyer Common Stock to be issued pursuant to the Merger will be duly
authorized and validly issued and, at the Effective Time, all such shares
will be fully paid, nonassessable and free of preemptive rights, with no
personal liability attaching to the ownership thereof.
(b) Section 5.2(b) of the Buyer Disclosure Schedule sets
forth a true and correct list of all of the Subsidiaries of the Buyer as of
the date of this Agreement. Except as set forth in Section 5.2(b) of the
Buyer Disclosure Schedule, as of the date of this Agreement, Buyer owns,
directly or indirectly, all of the issued and outstanding shares of capital
stock of each of the Subsidiaries of Buyer, free and clear of all liens,
charges, encumbrances and security interests whatsoever, and all of such
shares are duly authorized and validly issued and are fully paid,
nonassessable and free of preemptive rights, with no personal liability
attaching to the ownership thereof. As of the date of this Agreement, no
Subsidiary of Buyer has or is bound by any outstanding subscriptions,
options, warrants, calls, commitments or agreements of any character with
any party that is not a direct or indirect Subsidiary of Buyer calling for
the purchase or issuance of any shares of capital stock or any other equity
security of such Subsidiary or any securities representing the right to
purchase or otherwise receive any shares of capital stock or any other
equity security of such Subsidiary.
Section 5.3 Authority; No Violation. (a) Buyer has full
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery
of this Agreement and the consummation of the transactions contemplated
hereby have been duly and validly approved by the Board of Directors of
Buyer, and no other corporate proceedings on the part of Buyer are
necessary to approve this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by Buyer and (assuming due authorization, execution and delivery
by the Company) this Agreement constitutes a valid and binding obligation
of Buyer, enforceable against Buyer in accordance with its terms, except as
enforcement may be limited by general principles of equity whether applied
in a court of law or a court of equity and by bankruptcy, insolvency and
similar laws affecting creditors' rights and remedies generally.
(b) Except as set forth in Section 5.3(b) of the Buyer
Disclosure Schedule, neither the execution and delivery of this Agreement
by Buyer nor the consummation by Buyer of the transactions contemplated
hereby, nor compliance by Buyer with any of the terms or provisions hereof,
will (i) violate any provision of the Restated Certificate of Incorporation
or By-Laws of Buyer, or the articles of incorporation or by-laws or similar
governing documents of any of its Subsidiaries or (ii) assuming that the
consents and approvals referred to in Section 4.4 are duly obtained, (x)
violate any statute, code, ordinance, rule, regulation, judgment, order,
writ, decree or injunction applicable to Buyer or any of its Subsidiaries
or any of their respective properties or assets, or (y) violate, conflict
with, result in a breach of any provision of or the loss of any benefit
under, constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, result in the termination
of or a right of termination or cancellation under, accelerate the
performance required by, or result in the creation of any lien, pledge,
security interest, charge or other encumbrance upon any of the respective
properties or assets of Buyer or any of its Subsidiaries under, any of the
terms, conditions or provisions of any note, bond, mortgage, indenture,
deed of trust, license, lease, agreement or other instrument or obligation
to which Buyer or any of its Subsidiaries is a party, or by which they or
any of their respective properties or assets may be bound or affected.
Section 5.4 Consents and Approvals. Except for (a) the filing
of an application with the Federal Reserve Board under the BHC Act, and
approval of such application, (b) the filing of an application with the
FDIC under the Bank Merger Act and approval of such application, in the
event the parties enter into the Bank Merger Agreement (as defined in
Section 7.12), (c) the filing of applications and notices, as applicable,
with the OTS and approval of such applications and notices, (d) the State
Banking Approvals, (e) the filing with the SEC of the Proxy Statement and
the filing and declaration of effectiveness of the S-4, (f) the approval of
this Agreement by the requisite vote of the stockholders of the Company,
(g) the filing of the Certificate of Merger with the Secretary, (h) such
filings and approvals as are required to be made or obtained under the
securities or "Blue Sky" laws of various states in connection with the
issuance of the shares of Buyer Common Stock pursuant to this Agreement,
(i) approval of the listing of the Buyer Common Stock to be issued in the
Merger on the NYSE, and (j) such filings, authorizations or approvals as
may be set forth in Section 5.4 of the Buyer Disclosure Schedule, no
consents or approvals of or filings or registrations with any Governmental
Entity or with any third party are necessary in connection with the
execution and delivery by Buyer of this Agreement or the consummation by
Buyer of the Merger and the other transactions contemplated hereby.
Section 5.5 Reports. Buyer and each of its Subsidiaries have
timely filed all reports, registrations and statements, together with any
amendments required to be made with respect thereto, that they were
required to file since December 31, 1996 with any Regulatory Agency, and
have paid all fees and assessments due and payable in connection therewith.
Except for normal examinations conducted by a Regulatory Agency in the
regular course of the business of Buyer and its Subsidiaries, and except as
set forth in Section 5.5 of the Buyer Disclosure Schedule, no Regulatory
Agency has initiated any proceeding or, to the knowledge of Buyer,
investigation into the business or operations of Buyer or any of its
Subsidiaries since December 31, 1996. There is no unresolved violation,
criticism, or exception by any Regulatory Agency with respect to any report
or statement relating to any examinations of Buyer or any of its
Subsidiaries.
Section 5.6 Financial Statements. Buyer has previously made
available to the Company copies of (a) the consolidated statements of
financial condition of Buyer and its Subsidiaries as of December 31 for the
fiscal years 1997 and 1998 and the related consolidated statements of
income, changes in stockholders' equity and cash flows for the fiscal years
1996 through 1998, inclusive, as reported in Buyer's Annual Report on Form
10-K for the fiscal year ended December 31, 1998 filed with the SEC under
the Exchange Act, in each case accompanied by the audit report of KPMG LLP,
independent public accountants with respect to Buyer, and (b) the unaudited
consolidated statements of financial condition of Buyer and its
Subsidiaries as of March 31, 1998 and March 31, 1999 and the related
unaudited consolidated statements of income, changes in stockholder's
equity and cash flows for the three-month periods then ended as reported in
Buyer's Quarterly Report on Form 10-Q for the period ended March 31, 1999
filed with the SEC under the Exchange Act. The December 31, 1998
consolidated statements of financial condition of Buyer (including the
related notes, where applicable) fairly presents the consolidated financial
position of Buyer and its Subsidiaries as of the date thereof, and the
other financial statements referred to in this Section 5.6 (including the
related notes, where applicable) fairly present, and the financial
statements to be filed by Buyer with the SEC after the date of this
Agreement will fairly present (subject, in the case of the unaudited
statements, to recurring audit adjustments normal in nature and amount),
the results of the consolidated operations and changes in stockholders'
equity and consolidated financial position of Buyer and its Subsidiaries
for the respective fiscal periods or as of the respective dates therein set
forth; each of such statements (including the related notes, where
applicable) complies, and the financial statements to be filed by Buyer
with the SEC after the date of this Agreement will comply, with applicable
accounting requirements and with the published rules and regulations of the
SEC with respect thereto; and each of such statements (including the
related notes, where applicable) has been, and the financial statements to
be filed by Buyer with the SEC after the date of this Agreement will be,
prepared in accordance with GAAP consistently applied during the periods
involved, except as indicated in the notes thereto or, in the case of
unaudited statements, as permitted by Form 10-Q. The books and records of
Buyer and its Subsidiaries have been, and are being, maintained in
accordance with GAAP and any other applicable legal and accounting
requirements and reflect only actual transactions.
Section 5.7 Broker's Fees. Neither Buyer nor any Subsidiary of
Buyer, nor any of their respective officers or directors, has employed any
broker or finder or incurred any liability for any broker's fees,
commissions or finder's fees in connection with any of the transactions
contemplated by this Agreement or the Option Agreement, except that Buyer
has engaged, and will pay a fee or commission to, Xxxxxxxxx, Lufkin &
Xxxxxxxx Securities Corporation.
Section 5.8 Absence of Certain Changes or Events. (a) Except as
may be set forth in Section 5.8(a) of the Buyer Disclosure Schedule or as
disclosed in any Buyer Report filed with the SEC prior to the date of this
Agreement, since December 31, 1998, (i) neither Buyer nor any of its
Subsidiaries has incurred any liability, except in the ordinary course of
their business consistent with their past practices, and (ii) there has
been no change or development or combination of changes or developments
which has had, or is reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Buyer.
(b) Except as disclosed in any Buyer Report filed with
the SEC prior to the date of this Agreement, since December 31, 1998, the
Buyer and its Subsidiaries have carried on their respective businesses in
the ordinary course consistent with prudent banking practices.
(c) Since December 31, 1998, neither the Buyer nor any of
its Subsidiaries has (i)suffered any strike, work stoppage, slow-down, or
other labor disturbance, (ii) been a party to a collective bargaining
agreement, contract or other agreement or understanding with a labor union
or organization, or (iii) had any union organizing activities.
Section 5.9 Legal Proceedings. (a) Except as set forth in
Section 5.9 of the Buyer Disclosure Schedule, neither Buyer nor any of its
Subsidiaries is a party to any and there are no pending or, to Buyer's
knowledge, threatened, legal, administrative, arbitral or other
proceedings, claims, actions or governmental or regulatory investigations
of any nature against Buyer or any of its Subsidiaries or challenging the
validity or propriety of the transactions contemplated by this Agreement.
(b) There is no injunction, order, judgment, decree, or
regulatory restriction imposed upon Buyer, any of its Subsidiaries or the
assets of Buyer or any of its Subsidiaries.
Section 5.10 Taxes. Except as set forth in Section 5.10 of the
Buyer Disclosure Schedule, each of Buyer and its Subsidiaries has (i) duly
and timely filed (including applicable extensions granted without penalty)
all Tax Returns required to be filed at or prior to the Effective Time, and
such Tax Returns are true and correct, and (ii) paid in full or made
adequate provision in the financial statements of Buyer (in accordance with
GAAP) for all Taxes. No deficiencies for any Taxes have been proposed,
asserted, assessed or, to the best knowledge of Buyer, threatened against
or with respect to Buyer or any of its Subsidiaries. Except as set forth in
Section 5.10 of the Buyer Disclosure Schedule, (i) there are no liens for
Taxes upon the assets of either Buyer or its Subsidiaries except for
statutory liens for current Taxes not yet due, (ii) neither Buyer nor any
of its Subsidiaries has requested any extension of time within which to
file any Tax Returns in respect of any fiscal year which have not since
been filed and no request for waivers of the time to assess any Taxes are
pending or outstanding, (iii) with respect to each taxable period of Buyer
and its Subsidiaries, the federal and state income Tax Returns of Buyer and
its Subsidiaries have been audited by the Internal Revenue Service or
appropriate state tax authorities or the time for assessing and collecting
income Tax with respect to such taxable period has closed and such taxable
period is not subject to review, (iv) neither Buyer nor any of its
Subsidiaries has filed or been included in a combined, consolidated or
unitary income Tax Return other than one in which Buyer was the parent of
the group filing such Tax Return, (v) neither Buyer nor any of its
Subsidiaries is a party to any agreement providing for the allocation or
sharing of Taxes (other than the allocation of federal income taxes as
provided by Regulation 1.1552-1(a)(1) under the Code), (vi) neither Buyer
nor any of its Subsidiaries is required to include in income any adjustment
pursuant to Section 481(a) of the Code (or any similar or corresponding
provision or requirement of state, local or foreign income Tax law), by
reason of the voluntary change in accounting method (nor has any taxing
authority proposed in writing any such adjustment or change of accounting
method), and (vii) neither Buyer nor any of its Subsidiaries has filed a
consent pursuant to Section 341(f) of the Code.
Section 5.11 Employees. (a) Section 5.11(a) of the Buyer
Disclosure Schedule sets forth a true and correct list of each deferred
compensation plan, incentive compensation plan, equity compensation plan,
"welfare" plan, fund or program (within the meaning of section 3(1) of the
ERISA); "pension" plan, fund or program (within the meaning of section 3(2)
of ERISA); each employment, termination or severance agreement; and each
other employee benefit plan, fund, program, agreement or arrangement, in
each case, that is sponsored, maintained or contributed to or required to
be contributed to as of the date of this Agreement (the "Buyer Plans") by
Buyer, any of its Subsidiaries or by any trade or business, whether or not
incorporated (a "Buyer ERISA Affiliate"), all of which together with Buyer
would be deemed a "single employer" within the meaning of Section 4001 of
ERISA, for the benefit of any employee or former employee of Buyer, any
Subsidiary or any Buyer ERISA Affiliate.
(b) Except as set forth in Section 5.11(b) of the Buyer
Disclosure Schedule, (i) each of the Buyer Plans has been operated and
administered in accordance with its terms and applicable law, including but
not limited to ERISA and the Code, (ii) each of the Buyer Plans intended to
be "qualified" within the meaning of Section 401(a) of the Code has either
(1) received a favorable determination letter from the IRS, or (2) is or
will be the subject of an application for a favorable determination letter,
and Buyer is not aware of any circumstances likely to result in the
revocation or denial of any such favorable determination letter, (iii) with
respect to each Buyer Plan which is subject to Title IV of ERISA, the
present value of accrued benefits under such Buyer Plan, based upon the
actuarial assumptions used for funding purposes in the most recent
actuarial report prepared by such Buyer Plan's actuary with respect to such
Buyer Plan, did not, as of its latest valuation date, exceed the then
current value of the assets of such Buyer Plan allocable to such accrued
benefits, (iv) no Plan provides benefits, including without limitation
death or medical benefits (whether or not insured), with respect to current
or former employees of Buyer, its Subsidiaries or any Buyer ERISA Affiliate
beyond their retirement or other termination of service, other than (w)
coverage mandated by applicable law, (x) death benefits or retirement
benefits under any "employee pension plan," as that term is defined in
Section 3(2) of ERISA, (y) deferred compensation benefits accrued as
liabilities on the books of Buyer, its Subsidiaries or the ERISA Affiliates
or (z) benefits the full cost of which is borne by the current or former
employee (or his beneficiary), (v) no liability under Title IV of ERISA has
been incurred by Buyer, its Subsidiaries or any Buyer ERISA Affiliate that
has not been satisfied in full and no condition exists that presents a
material risk to the Buyer, its Subsidiaries or an ERISA Affiliate of
incurring a material liability thereunder, (vi) no Buyer Plan is a
"multiemployer pension plan," as such term is defined in Section 3(37) of
ERISA, (vii) all contributions or other amounts payable by Buyer, its
Subsidiaries or any ERISA Affiliate as of the Effective Time with respect
to each Plan in respect of current or prior plan years have been paid or
accrued in accordance with generally accepted accounting practices and
Section 412 of the Code, (viii) neither Buyer, its Subsidiaries nor any
Buyer ERISA Affiliate has engaged in a transaction in connection with which
Buyer, its Subsidiaries or any Buyer ERISA Affiliate could be subject to
either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA
or a tax imposed pursuant to Section 4975 or 4976 of the Code, (ix) there
are no pending, or, to the best knowledge of Buyer, threatened or
anticipated claims or proceedings (other than routine claims for benefits)
by, on behalf of or against any of the Buyer Plans or any trusts related
thereto and (x) the consummation of the transactions contemplated by this
Agreement will not (y) entitle any current or former employee or officer of
Buyer or any Buyer ERISA Affiliate to severance pay, termination pay or any
other payment or benefit, except as expressly provided in this Agreement or
(z) accelerate the time of payment or vesting or increase in the amount or
value of compensation or benefits due any such employee or officer.
Section 5.12 SEC Reports. Buyer has previously made available
to the Company a true and correct copy of each (a) final registration
statement, prospectus, report, schedule and definitive proxy statement
filed since January 1, 1997 by Buyer with the SEC pursuant to the
Securities Act or the Exchange Act (the "Buyer Reports") and (b)
communication mailed by Buyer to its stockholders since January 1, 1997,
and no such registration statement, prospectus, report, schedule, proxy
statement or communication contained any untrue statement of a material
fact or omitted to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances in which they were made, not misleading. Buyer has timely
filed all Buyer Reports and other documents required to be filed by it
under the Securities Act and the Exchange Act, and, as of their respective
dates, all Buyer Reports complied with the published rules and regulations
of the SEC with respect thereto.
Section 5.13 Buyer Information. The information relating to
Buyer and its Subsidiaries to be contained in the Proxy Statement and the
S-4, or in any other document filed with any other regulatory agency in
connection herewith, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances in which they are made, not
misleading. The S-4 will comply with the provisions of the Securities Act
and the rules and regulations thereunder.
Section 5.14 Compliance with Applicable Law. Buyer and each of
its Subsidiaries hold, and have at all times held, all licenses,
franchises, permits and authorizations necessary for the lawful conduct of
their respective businesses under and pursuant to all, and have complied
with and are not in default in any respect under any, applicable law,
statute, order, rule, regulation, policy and/or guideline of any
Governmental Entity relating to Buyer or any of its Subsidiaries, and
neither Buyer nor any of its Subsidiaries knows of, or has received notice
of violation of, any violations of any of the above.
Section 5.15 Ownership of Company Common Stock. (a) Except for
the Option Agreement and 55,000 shares of Company Common Stock beneficially
owned by Buyer, neither Buyer nor any of its affiliates or associates (as
such terms are defined under the Exchange Act), (i) beneficially owns,
directly or indirectly, or (ii) is a party to any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or disposing
of, in each case, any shares of capital stock of the Company (other than
Trust Account Shares and DPC Shares).
(b) Neither Buyer nor any of its Subsidiaries is an
"affiliate" (as such term is defined in DGCL ss. 203(c)(1)) or an
"associate" (within the meaning of DGCL ss. 203(c)(2)) of the Company or an
"Interested Stockholder" (as such term is defined in Article VIII of the
Company's Certificate of Incorporation).
Section 5.16 Agreements with Regulatory Agencies. Neither Buyer
nor any of its Subsidiaries is subject to any cease-and-desist or other
order issued by, or is a party to any written agreement, consent agreement
or memorandum of understanding with, or is a party to any commitment letter
or similar undertaking to, or is subject to any order or directive by, or
is a recipient of any extraordinary supervisory letter from, or has adopted
any board resolutions at the request of (each, whether or not set forth in
Section 5.16 of the Buyer Disclosure Schedule, a "Buyer Regulatory
Agreement"), any Regulatory Agency or other Governmental Entity that
restricts the conduct of its business or that in any manner relates to its
capital adequacy, its credit policies, its management or its business, nor
has Buyer or any of its Subsidiaries been advised by any Regulatory Agency
or other Governmental Entity that it is considering issuing or requesting
any Regulatory Agreement.
Section 5.17 Approvals. As of the date of this Agreement, Buyer
knows of no reason why all regulatory approvals required for the
consummation of the transactions contemplated hereby should not be
obtained.
Section 5.18 Tax Treatment for the Merger; Reorganization. As
of the date of this Agreement, Buyer has no reason to believe that the
Merger will fail to qualify as a reorganization under Section 368(a) of the
Code.
Section 5.19 Environmental Matters. Except as set
forth in Section 5.19 of the Buyer Disclosure Schedule:
(a) Each of Buyer and its Subsidiaries and, to the
knowledge of the Buyer, each of the Participation Facilities and the Loan
Properties (each as hereinafter defined) are and have been in compliance
with all Environmental Laws;
(b) There is no suit, claim, action or proceeding,
pending or, to the knowledge of Buyer, threatened, before any Governmental
Entity or other forum in which Buyer, any of its Subsidiaries, any
Participation Facility or any Loan Property, has been or, with respect to
threatened proceedings, may be, named as a defendant (x) for alleged
noncompliance (including by any predecessor) with any Environmental Laws,
or (y) relating to the release, threatened release or exposure to any
Hazardous Material whether or not occurring at or on a site owned, leased
or operated by Buyer or any of its Subsidiaries, any Participation Facility
or any Loan Property;
(c) During the period of (x) Buyer's or any of its
Subsidiaries' ownership or operation of any of their respective current or
former properties, (y) Buyer's or any of its Subsidiaries' participation in
the management of any Participation Facility, or (z) to the knowledge of
the Buyer, Buyer's or any of its Subsidiaries' interest in a Loan Property,
there has been no release of Hazardous Materials in, on, under or affecting
any such property. To the knowledge of the Buyer, prior to the period of
(x) Buyer's or any of its Subsidiaries' ownership or operation of any of
their respective current or former properties, (y) Buyer's or any of its
Subsidiaries' participation in the management of any Participation
Facility, or (z) Buyer's or any of its Subsidiaries' interest in a Loan
Property, there was no release of Hazardous Materials in, on, under or
affecting any such property, Participation Facility or Loan Property; and
(d) The following definitions apply for purposes of this
Section 5.19: (x) "Loan Property" means any property in which Buyer or any
of its Subsidiaries holds a security interest, and, where required by the
context, said term means the owner or operator of such property; (y)
"Participation Facility" means any facility in which Buyer or any of its
Subsidiaries participates in the management and, where required by the
context, said term means the owner or operator of such property; and (z)
"Hazardous Materials" means any chemicals, pollutants, contaminants,
wastes, toxic substances, petroleum or other regulated substances or
materials.
Section 5.20 Loan Portfolio. Section 5.20 of the Buyer
Disclosure Schedule sets forth, by category, the aggregate book value
amount of (i) all of the Loans in original principal amount in excess of
$100,000 of the Buyer or any of its Subsidiaries that as of July 31, 1999,
were classified by any bank examiner (whether regulatory or internal) as
"Other Loans Specially Mentioned", "Special Mention", "Substandard",
"Doubtful", "Loss", "Classified", "Criticized", "Credit Risk Assets",
"Concerned Loans", "Watch List" or words of similar import, together with
the principal amount of and accrued and unpaid interest on each such Loan
and the identity of the borrower thereunder and (ii) all assets of the
Buyer that as of June 30, 1999, were classified as "Other Real Estate
Owned".
(b) Each Loan in original principal amount in excess of
$250,000 (i) is evidenced by notes, agreements or other evidences of
indebtedness which are true, genuine and what they purport to be, (ii) to
the extent secured, has been secured by valid liens and security interests
which have been perfected and (iii) is the legal, valid and binding
obligation of the obligor named therein, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent conveyance and other
laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
Section 5.21 Property. Each of the Buyer and its Subsidiaries
has good and marketable title free and clear of all liens, encumbrances,
mortgages, pledges, charges, defaults or equitable interests to all of the
properties and assets, real and personal, tangible or intangible, which are
reflected on the consolidated statement of financial condition of the Buyer
as of June 30, 1999 or acquired after such date, except (i) liens for taxes
not yet due and payable or contested in good faith by appropriate
proceedings, (ii) pledges to secure deposits and other liens incurred in
the ordinary course of business, (iii) such imperfections of title,
easements and encumbrances, if any, as do not interfere with the use of the
property as such property is used on the date of this Agreement, (iv) for
dispositions and encumbrances of, or on, such properties or assets in the
ordinary course of business or (v) mechanics', materialmen's, workmen's,
repairmen's, warehousemen's, carrier's and other similar liens and
encumbrances arising in the ordinary course of business. All leases
pursuant to which the Buyer or any Subsidiary of the Buyer, as lessee,
leases real or personal property are valid and enforceable in accordance
with their respective terms and neither the Buyer nor any of its
Subsidiaries nor, to the knowledge of the Buyer, any other party thereto is
in default thereunder.
Section 5.22 Derivative Transactions. Except as set forth in
Section 5.22 of the Buyer Disclosure Schedule, since December 31, 1998,
neither Buyer nor any of its Subsidiaries has engaged in transactions in or
involving forwards, futures, options on futures, swaps or other derivative
instruments except (i) as agent on the order and for the account of others,
or (ii) as principal for purposes of hedging interest rate risk on U.S.
dollar-denominated securities and other financial instruments. None of the
counterparties to any contract or agreement with respect to any such
instrument is in default with respect to such contract or agreement and no
such contract or agreement, were it to be a Loan (as defined below) held by
the Buyer or any of its Subsidiaries, would be classified as "Other Loans
Specially Mentioned", "Special Mention", "Substandard", "Doubtful", "Loss",
"Classified", "Criticized", "Credit Risk Assets", "Concerned Loans" or
words of similar import. The financial position of Buyer and its
Subsidiaries on a consolidated basis under or with respect to each such
instrument has been reflected in the books and records of Buyer and such
Subsidiaries in accordance with GAAP consistently applied, and no open
exposure of Buyer or any of its Subsidiaries with respect to any such
instrument (or with respect to multiple instruments with respect to any
single counterparty) exceeds $250,000.
Section 5.23 Year 2000 Matters. Section 5.23 of the Buyer
Disclosure Schedule contains a true and correct copy of the Buyer's plan
for addressing year 2000 computer issues (the "Year 2000 Plan"). The Buyer
is in material compliance with the Buyer's Year 2000 Plan.
Section 5.24 Insurance. The Buyer and its Subsidiaries are
presently insured, and since December 31, 1998, have been insured, for
reasonable amounts with financially sound and reputable insurance
companies, against such risks as companies engaged in a similar business
would, in accordance with good business practice, customarily be insured.
All of the insurance policies and bonds maintained by the Buyer and its
Subsidiaries are in full force and effect, the Buyer and its Subsidiaries
are not in default thereunder and all material claims thereunder have been
filed in due and timely fashion.
ARTICLE ARTICLE VI
COVENANTS RELATING TO CONDUCT OF BUSINESS
Section 6.1 Covenants of the Company. During the period from
the date of this Agreement and continuing until the Effective Time, except
as expressly contemplated or permitted by this Agreement or the Option
Agreement or with the prior written consent of Buyer, the Company and its
Subsidiaries shall carry on their respective businesses in the ordinary
course consistent with past practice and consistent with prudent banking
practice. The Company will use its best efforts to (x) preserve its
business organization and that of its Subsidiaries intact, (y) keep
available to itself and Buyer the present services of the employees of the
Company and its Subsidiaries and (z) preserve for itself and Buyer the
goodwill of the customers of the Company and its Subsidiaries and others
with whom business relationships exist. Without limiting the generality of
the foregoing, and except as set forth in Section 6.1 of the Company
Disclosure Schedule or as otherwise contemplated by this Agreement or
consented to in writing by Buyer, the Company shall not, and shall not
permit any of its Subsidiaries to:
(a) solely in the case of the Company, declare or pay any
dividends on, or make other distributions in respect of, any of its capital
stock, other than normal quarterly dividends not in excess of $0.21 per
share of Company Common Stock;
(b) (i) split, combine or reclassify any shares of its
capital stock or issue or authorize or propose the issuance of any other
securities in respect of, in lieu of or in substitution for shares of its
capital stock, (ii) repurchase, redeem or otherwise acquire (except for the
acquisition of Trust Account Shares and DPC Shares, as such terms are
defined in Section 1.4(b) hereof) any shares of the capital stock of the
Company or any Subsidiary of the Company, or any securities convertible
into or exercisable for any shares of the capital stock of the Company or
any Subsidiary of the Company; or (iii) issue, deliver or sell, or
authorize or propose the issuance, delivery or sale of, any shares of its
capital stock or any securities convertible into or exercisable for, or any
rights, warrants or options to acquire, any such shares, or enter into any
agreement with respect to any of the foregoing, except, in the case of
clauses (i) and (iii), for the issuance of Company Common Stock upon the
exercise or fulfillment of rights or options issued or existing pursuant to
employee benefit plans, programs or arrangements, all to the extent
outstanding and in existence on the date of this Agreement and in
accordance with their present terms;
(c) amend its Certificate of Incorporation, By-laws or
other similar governing documents;
(d) authorize any of its officers, directors, or agents
to directly or indirectly solicit, initiate or encourage any inquiries
relating to, or the making of any proposal which constitutes, a "takeover
proposal" (as defined below), or recommend or endorse any takeover
proposal, or participate in any discussions or negotiations, or provide
third parties with any nonpublic information, relating to any such inquiry
or proposal or otherwise facilitate any effort or attempt to make or
implement a takeover proposal; provided, however, that the Company may
communicate information about any such takeover proposal to its
stockholders if, in the judgment of the Company's Board of Directors, based
upon the advice of outside counsel, such communication is required under
applicable law; provided further, however, that nothing contained in this
Section 6.1(d) shall prohibit the Company from furnishing information to,
or entering into discussions or negotiations with, any person or entity
that makes an unsolicited, bona fide takeover proposal that constitutes a
Superior Proposal (as defined below) in each case if, and only to the
extent that (A) such actions occur at a time prior to approval of the
Merger Agreement by the Company's stockholders, (B) the Board of Directors
of the Company concludes in good faith, after consultation with and based
upon the advice of outside counsel, that it is required to do so in order
to comply with its fiduciary duties to the Company's stockholders under
applicable law, and (C) prior to taking such action, the Company receives
from such person or entity an executed confidentiality agreement and an
executed standstill agreement, each in reasonably customary form (provided
that such agreements shall contain terms that are no less restrictive than
the terms of any such agreement between Buyer and the Company). For
purposes of this Agreement, "Superior Proposal" means any bona fide written
takeover proposal for or in respect of all of the outstanding shares of
Company Common Stock, (i) on terms that the Board of Directors of the
Company determines in its good faith judgment (after consultation with a
financial advisor of nationally recognized reputation and taking into
account all the terms and conditions of the takeover proposal deemed
relevant by such Board of Directors, including the consideration to be paid
pursuant thereto, any break-up fees, expense reimbursement provisions,
conditions to consummation, and the ability of the party making such
proposal to obtain financing therefor) are more favorable from a financial
point of view to its stockholders than the Merger, and (ii) that
constitutes a transaction that, in such Board of Directors' good faith
judgment, is reasonably likely to be consummated on the terms set forth,
taking into account all legal, financial, regulatory and other aspects of
such proposal. The Company will immediately cease and cause to be
terminated any existing activities, discussions or negotiations previously
conducted with any parties other than Buyer with respect to any of the
foregoing. The Company will take all actions necessary or advisable to
inform the appropriate individuals or entities referred to in the first
sentence hereof of the obligations undertaken in this Section 6.1(d). The
Company will notify Buyer immediately if any such inquiries or takeover
proposals are received by, any such information is requested from, or any
such negotiations or discussions are sought to be initiated or continued
with, the Company, and the Company will promptly inform Buyer in writing of
all of the relevant details with respect to the foregoing. As used in this
Agreement, "takeover proposal" shall mean any tender or exchange offer,
proposal for a merger, consolidation or other business combination
involving the Company or any Subsidiary of the Company or any proposal or
offer to acquire in any manner a substantial equity interest in, or a
substantial portion of the assets of, the Company or any Subsidiary of the
Company other than the transactions contemplated or permitted by this
Agreement and the Option Agreement;
(e) make any capital expenditures other than those which
(i) are made in the ordinary course of business or are necessary to
maintain existing assets in good repair and (ii) in any event are in an
amount of no more than $500,000 in the aggregate;
(f) enter into any new line of business;
(g) acquire or agree to acquire, by merging or
consolidating with, or by purchasing a substantial equity interest in or a
substantial portion of the assets of, or by any other manner, any business
or any corporation, partnership, association or other business organization
or division thereof or otherwise acquire any assets, which would be
material, individually or in the aggregate, to the Company, other than in
connection with foreclosures, settlements in lieu of foreclosure or
troubled loan or debt restructurings in the ordinary course of business
consistent with prudent banking practices;
(h) take any action that is intended or may reasonably be
expected to result in any of its representations and warranties set forth
in this Agreement being or becoming untrue in any material respect, or in
any of the conditions to the Merger set forth in Article VIII not being
satisfied;
(i) change its methods of accounting in effect at June
30, 1998 except as required by changes in GAAP or regulatory accounting
principles as concurred to by the Company's independent auditors;
(j) (i) except as required by applicable law or as
required to maintain qualification pursuant to the Code, adopt, amend,
renew or terminate any employee benefit plan (including, without
limitation, any Plan) or any agreement, arrangement, plan or policy between
the Company or any Subsidiary of the Company and one or more of its current
or former directors, officers or employees or (ii) except for normal
increases in the ordinary course of business consistent with past practice
or except as required by applicable law, increase in any manner the
compensation or fringe benefits of any director, officer or employee or pay
any benefit not required by any Plan or agreement as in effect as of the
date hereof (including, without limitation, the granting of stock options,
stock appreciation rights, restricted stock, restricted stock units or
performance units or shares);
(k) take or cause to be taken any action which would
disqualify the Merger as a tax free reorganization under Section 368(a) of
the Code;
(l) other than activities in the ordinary course of
business consistent with past practice, sell, lease, encumber, assign or
otherwise dispose of, or agree to sell, lease, encumber, assign or
otherwise dispose of, any of its material assets, properties or other
rights or agreements;
(m) other than in the ordinary course of business
consistent with past practice, incur any indebtedness for borrowed money or
assume, guarantee, endorse or otherwise as an accommodation become
responsible for the obligations of any other individual, corporation or
other entity;
(n) file any application to relocate or terminate
the operations of any banking office of it or any of its Subsidiaries;
(o) make any equity investment or commitment to make such
an investment in real estate or in any real estate development project,
other than in connection with foreclosures, settlements in lieu of
foreclosure or troubled loan or debt restructurings in the ordinary course
of business consistent with prudent banking practices;
(p) create, renew, amend or terminate or give notice of a
proposed renewal, amendment or termination of, any material contract,
agreement or lease for goods, services or office space to which the Company
or any of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries or their respective properties is bound;
(q) other than in prior consultation with Buyer,
restructure or materially change its investment securities portfolio,
through purchases, sales or otherwise, or the manner in which the portfolio
is classified or reported; or
(r) agree to do any of the foregoing.
Section 6.2 Covenants of Buyer. During the period from the date
of this Agreement and continuing until the Effective Time, except as
expressly contemplated or permitted by this Agreement or the Option
Agreement or with the prior written consent of the Company, Buyer and its
Subsidiaries shall carry on their respective businesses in the ordinary
course consistent with prudent banking practice. Except as set forth in
Section 6.2 of the Buyer Disclosure Schedule or as otherwise contemplated
by this Agreement or consented to in writing by the Company, Buyer shall
not, and shall not permit any of its Subsidiaries to:
(a) solely in the case of Buyer, declare or pay any
extraordinary or special dividends on or make any other extraordinary or
special distributions in respect of any of its capital stock; provided,
however, that nothing contained herein shall prohibit Buyer from increasing
the quarterly cash dividend on the Buyer Common Stock;
(b) take any action that is intended or may reasonably be
expected to result in any of its representations and warranties set forth
in this Agreement being or becoming untrue in any material respect, or in
any of the conditions to the Merger set forth in Article VIII not being
satisfied;
(c) change its methods of accounting in effect at
December 31, 1998, except in accordance with changes in GAAP or regulatory
accounting principles as concurred to by Buyer's independent auditors;
(d) take or cause to be taken any action which would
disqualify the Merger as a tax free reorganization under Section 368(a) of
the Code; or
(e) change any provisions of the Certificate of
Incorporation of the Buyer, other than as disclosed in Section 6.2(e) of
the Buyer Disclosure Schedule;
(f) agree to do any of the foregoing.
ARTICLE ARTICLE VII
ADDITIONAL AGREEMENTS
Section 7.1 Regulatory Matters. (a) The Company shall promptly
prepare and file with the SEC the Proxy Statement and Buyer shall promptly
prepare and file with the SEC the S-4, in which the Proxy Statement will be
included as a prospectus. Each of the Company and Buyer shall use all
reasonable efforts to have the S-4 declared effective under the Securities
Act as promptly as practicable after such filing, and the Company shall
thereafter mail the Proxy Statement to its stockholders. Buyer shall also
use all reasonable efforts to obtain all necessary state securities law or
"Blue Sky" permits and approvals required to carry out the transactions
contemplated by this Agreement, and the Company shall furnish all
information concerning the Company and the holders of Company Common Stock
as may be reasonably requested in connection with any such action.
(b) The parties hereto shall cooperate with each other
and use their reasonable best efforts to promptly prepare and file all
necessary documentation, to effect all applications, notices, petitions and
filings, and to obtain as promptly as practicable all permits, consents,
approvals and authorizations of all third parties and Governmental Entities
which are necessary or advisable to consummate the transactions
contemplated by this Agreement. The Company and Buyer shall have the right
to review in advance, and to the extent practicable each will consult the
other on, in each case subject to applicable laws relating to the exchange
of information, all the information relating to the Company or Buyer, as
the case may be, and any of their respective Subsidiaries, which appears in
any filing made with, or written materials submitted to, any third party or
any Governmental Entity in connection with the transactions contemplated by
this Agreement. In exercising the foregoing right, each of the parties
hereto shall act reasonably and as promptly as practicable. The parties
hereto agree that they will consult with each other with respect to the
obtaining of all permits, consents, approvals and authorizations of all
third parties and Governmental Entities necessary or advisable to
consummate the transactions contemplated by this Agreement and each party
will keep the other apprised of the status of matters relating to
completion of the transactions contemplated herein.
(c) Buyer and the Company shall, upon request, furnish
each other with all information concerning themselves, their Subsidiaries,
directors, officers and stockholders and such other matters as may be
reasonably necessary or advisable in connection with the Proxy Statement,
the S-4 or any other statement, filing, notice or application made by or on
behalf of Buyer, the Company or any of their respective Subsidiaries to any
Governmental Entity in connection with the Merger and the other
transactions contemplated by this Agreement.
(d) Buyer and the Company shall promptly furnish each
other with copies of written communications received by Buyer or the
Company, as the case may be, or any of their respective Subsidiaries,
Affiliates or Associates (as such terms are defined in Rule 12b-2 under the
Exchange Act as in effect on the date of this Agreement) from, or delivered
by any of the foregoing to, any Governmental Entity in respect of the
transactions contemplated hereby.
Section 7.2 Access to Information. (a) Upon reasonable notice
and subject to applicable laws relating to the exchange of information, the
Company shall, and shall cause each of its Subsidiaries to, afford to the
officers, employees, accountants, counsel and other representatives of
Buyer, access, during normal business hours during the period prior to the
Effective Time, to all its properties, books, contracts, commitments,
records, officers, employees, accountants, counsel and other
representatives and, during such period, the Company shall, and shall cause
its Subsidiaries to, make available to Buyer (i) a copy of each report,
schedule, registration statement and other document filed or received by it
during such period pursuant to the requirements of Federal securities laws
or Federal or state banking laws (other than reports or documents which the
Company is not permitted to disclose under applicable law) and (ii) all
other information concerning its business, properties and personnel as
Buyer may reasonably request. Neither the Company nor any of its
Subsidiaries shall be required to provide access to or to disclose
information where such access or disclosure would violate or prejudice the
rights of the Company's customers, jeopardize any attorney-client privilege
or contravene any law, rule, regulation, order, judgment, decree, fiduciary
duty or binding agreement entered into prior to the date of this Agreement.
The parties hereto will make appropriate substitute disclosure arrangements
under circumstances in which the restrictions of the preceding sentence
apply.
(b) Upon reasonable notice and subject to applicable laws
relating to the exchange of information, Buyer shall, and shall cause its
Subsidiaries to, afford to the officers, employees, accountants, counsel
and other representatives of the Company, access, during normal business
hours during the period prior to the Effective Time, to such information
regarding Buyer and its Subsidiaries as shall be reasonably necessary for
the Company to fulfill its obligations pursuant to this Agreement to assist
in the preparation of the Proxy Statement or which may be reasonably
necessary for the Company to confirm that the representations and
warranties of Buyer contained herein are true and correct and that the
covenants of Buyer contained herein have been performed in all material
respects. Neither Buyer nor any of its Subsidiaries shall be required to
provide access to or to disclose information where such access or
disclosure would violate or prejudice the rights of Buyer's customers,
jeopardize any attorney-client privilege or contravene any law, rule,
regulation, order, judgment, decree, fiduciary duty or binding agreement
entered into prior to the date of this Agreement. The parties hereto will
make appropriate substitute disclosure arrangements under circumstances in
which the restrictions of the preceding sentence apply.
(c) All information furnished by either party to the
other party or its representatives pursuant hereto shall be treated as the
sole property of the delivery party and, if the Merger shall not occur, the
receiving party and its representatives shall return to the delivering
party all of such written information and all documents, notes, summaries
or other materials containing, reflecting or referring to, or derived from,
such information. The receiving party shall, and shall use its best efforts
to cause its representatives to, keep confidential all such information,
and shall not directly or indirectly use such information for any
competitive or other commercial purpose. The obligation to keep such
information confidential shall continue for ten years from the date the
proposed Merger is abandoned and shall not apply to (i) any information
which (x) was already in the receiving party's possession prior to the
disclosure thereof by the delivering party; (y) was then generally known to
the public; or (z) was disclosed to the receiving party by a third party
not bound by an obligation of confidentiality or (ii) disclosures made as
required by law. It is further agreed that, if in the absence of a
protective order or the receipt of a waiver hereunder the receiving party
is nonetheless, in the opinion of its counsel, compelled to disclose
information concerning delivering party to any tribunal or governmental
body or agency or else stand liable for contempt or suffer other censure or
penalty, the receiving party may disclose such information to such tribunal
or governmental body or agency without liability hereunder.
(d) No investigation by either of the parties or their
respective representatives shall affect the representations, warranties,
covenants or agreements of the other set forth herein.
Section 7.3 Stockholder Meetings. The Company shall take all
steps necessary to duly call, give notice of, convene and hold a meeting of
its stockholders to be held as soon as is reasonably practicable after the
date on which the S-4 becomes effective for the purpose of voting upon the
approval of this Agreement and the consummation of the transactions
contemplated hereby. The Company will, through its Board of Directors,
recommend to its stockholders approval of this Agreement and the
transactions contemplated hereby and such other matters as may be submitted
to its stockholders in connection with this Agreement; provided, however,
that nothing shall prohibit the Board of Directors of the Company from
withdrawing or modifying in a manner adverse to Buyer such recommendation
to the Company's stockholders if (a) the Company is not in breach of, and
has not breached, any of the provisions of Section 6.1(d), (b) the Company
receives an unsolicited, bona fide written takeover proposal which
constitutes a Superior Proposal (each as defined in Section 6.1(d)), and
(c) the Board of Directors of the Company determines in good faith that it
is required to take such action, but only after consultation with outside
counsel and only if such outside counsel concludes and advises the Board
that the failure to take such action would result in a violation of its
fiduciary duties under applicable law.
Section 7.4 Legal Conditions to Merger. Each of Buyer and the
Company shall, and shall cause its Subsidiaries to, use their reasonable
best efforts (a) to take, or cause to be taken, all actions necessary,
proper or advisable to comply promptly with all legal requirements which
may be imposed on such party or its Subsidiaries with respect to the Merger
and, subject to the conditions set forth in Article VIII hereof, to
consummate the transactions contemplated by this Agreement and (b) to
obtain (and to cooperate with the other party to obtain) any consent,
authorization, order or approval of, or any exemption by, any Governmental
Entity and any other third party which is required to be obtained by the
Company or Buyer or any of their respective Subsidiaries in connection with
the Merger and the other transactions contemplated by this Agreement, and
to comply with the terms and conditions of such consent, authorization,
order or approval.
Section 7.5 Affiliates. The Company shall use its reasonable
best efforts to cause each director, executive officer and other person who
is an "affiliate" (for purposes of Rule 145 under the Securities Act) of
the Company to deliver to Buyer, as soon as practicable after the date of
this Agreement, a written agreement, in the form of Exhibit 7.5 hereto.
Section 7.6 Stock Exchange Listing. Buyer shall use all
reasonable efforts to cause the shares of Buyer Common Stock to be issued
in the Merger to be approved for listing on the NYSE, subject to official
notice of issuance, as of the Effective Time.
Section 7.7 Employee Benefit Plans; Existing Agreements. (a) As
soon as practicable following the Effective Time, the employees of the
Company and its Subsidiaries (the "Company Employees") shall be eligible to
participate in Buyer's employee benefit plans in which similarly situated
employees of Buyer or Buyer Bank participate, to the same extent as
similarly-situated employees of Buyer or Buyer Bank (it being understood
that inclusion of Company Employees in Buyer's employee benefit plans may
occur at different times with respect to different plans); provided,
however, that Buyer shall continue the comparable plans of Company and its
Subsidiaries for the exclusive benefit of Company Employees until such time
as Company Employees become eligible to participate in the plans of Buyer
or Buyer Bank. Company's ESOP shall terminate as of the Effective Time and
prior to such time Company shall make contributions to the ESOP sufficient
to enable the trustee of the plan to repay in full all outstanding
acquisition loans of the plan. If Company cannot make contributions
sufficient to enable the trustee to repay such loans in full by reason of
the operation of Section 415(c) of the Code then, in accordance with the
terms of the ESOP, the trustee shall sell a number of shares sufficient to
repay the remaining portion of the loan. All shares of stock and cash held
by the plan as of the Effective Time shall be allocated to participants of
the ESOP in accordance with its terms.
(b) With respect to each Buyer Plan that is an "employee
benefit plan," as defined in Section 3(3)of ERISA, for purposes of
determining eligibility to participate, vesting, and entitlement to
benefits, including for severance benefits and vacation entitlement (but
not for accrual of pension benefits), service with the Company and its
Subsidiaries shall be treated as service with Buyer; provided however, that
such service shall not be recognized to the extent that such recognition
would result in a duplication of benefits. Such service also shall apply
for purposes of satisfying any waiting periods, evidence of insurability
requirements, or the application of any preexisting condition limitations.
Company Employees shall be given credit for amounts paid under a
corresponding benefit plan during the same period for purposes of applying
deductibles, copayments and out-of-pocket maximums as though such amounts
had been paid in accordance with the terms and conditions of the Buyer
Plan.
(c) Buyer shall honor and shall cause the appropriate
Subsidiaries of Buyer to honor, and the Company shall pay at the Closing
Date, in accordance with their terms all employment, severance and other
compensation agreements and arrangements existing prior to the execution of
this Agreement which are between the Company or any of its Subsidiaries and
any director, officer or employee thereof and which have been disclosed in
the Company Disclosure Schedule and previously have been delivered to
Buyer. All payments under employment and change in control agreements
identified in Section 4.15(a) of the Company Disclosure Schedule between
the Company or its Subsidiaries and individual officers and employees of
the Company or its Subsidiaries shall be paid by the Company at the Closing
Date regardless of whether or not such individual continues in employment
with Buyer or its Subsidiaries. The Company Disclosure Schedule sets forth
the reasonable, good faith estimates of amounts payable under employment
and severance agreements between the Company or its Subsidiaries and
certain individuals and the amounts shown and methodology used in preparing
such estimates shall be followed in determining the actual amounts payable
under such agreements.
(d) Employees of the Company and its Subsidiaries shall be
entitled to receive payment for accrued but unused vacation days and any
accrued but unused vacation days of employees of the Company or its
Subsidiaries as of the Closing Date shall, at the employee's option, either
be paid immediately prior to the Closing Date or taken as vacation as soon
as practicable following the Closing Date; provided, however, that the
Company shall deliver to Buyer, not later than fifteen (15) business days
after the date of this Agreement, a schedule of employees indicating their
accrued but unused vacation days as of the most recent date practicable.
(e) The Company or its Subsidiaries shall pay bonuses in
accordance with its past practices through December 31, 1999, and the
compensation with respect to which bonuses are paid for any individual
shall be for the period of time that has elapsed since the payment of the
last bonus. At the Closing Date each Company Employee shall be entitled to
receive a bonus equal to the bonus received by such Company Employee for
the period ended as of December 31, 1999, multiplied by a fraction, the
numerator of which shall be the number of days from December 31 through the
date on which the Closing Date occurs and the denominator of which is 366
(in the case of employees who were paid annual bonuses as of December 31)
and 180 days (in the case of employees who received semi annual bonuses as
of both June 30 and December 31), as the case may be.
Section 7.8 Indemnification. (a) In the event of any threatened
or actual claim, action, suit, proceeding or investigation, whether civil,
criminal or administrative, including, without limitation, any such claim,
action, suit, proceeding or investigation in which any person who is now,
or has been at any time prior to the date of this Agreement, or who becomes
prior to the Effective Time, a director or officer of the Company or any of
its Subsidiaries (the "Indemnified Parties") is, or is threatened to be,
made a party based in whole or in part on, or arising in whole or in part
out of, or pertaining to (i) the fact that he is or was a director or
officer of the Company, any of the Subsidiaries of the Company or any of
their respective predecessors or (ii) this Agreement or any of the
transactions contemplated hereby, whether in any case asserted or arising
before or after the Effective Time, the parties hereto agree to cooperate
and use their best efforts to defend against and respond thereto. It is
understood and agreed that after the Effective Time, Buyer shall indemnify
and hold harmless, as and to the extent permitted by law, each such
Indemnified Party against any losses, claims, damages, liabilities, costs,
expenses (including reasonable attorney's fees and expenses in advance of
the final disposition of any claim, suit, proceeding or investigation to
each Indemnified Party to the fullest extent permitted by law upon receipt
of any undertaking required by applicable law), judgments, fines and
amounts paid in settlement in connection with any such threatened or actual
claim, action, suit, proceeding or investigation, and in the event of any
such threatened or actual claim, action, suit, proceeding or investigation
(whether asserted or arising before or after the Effective Time), the
Indemnified Parties may retain counsel reasonably satisfactory to them
after consultation with Buyer; provided, however, that (1) Buyer shall have
the right to assume the defense thereof with counsel reasonably acceptable
to the Indemnified party and upon such assumption Buyer shall not be liable
to any Indemnified Party for any legal expenses of other counsel or any
other expenses subsequently incurred by any Indemnified Party in connection
with the defense thereof, except that if Buyer elects not to assume such
defense or counsel for the Indemnified Parties reasonably advises that
there are issues which raise conflicts of interest between Buyer and the
Indemnified Parties, the Indemnified Parties may retain counsel reasonably
satisfactory to them after consultation with Buyer, and Buyer shall pay the
reasonable fees and expenses of such counsel for the Indemnified Parties,
(2) Buyer shall in all cases be obligated pursuant to this paragraph to pay
for only one firm of counsel with respect to any claim, action or suit for
all Indemnified Parties, (3) Buyer shall not be liable for any settlement
effected without its prior written consent (which consent shall not be
unreasonably withheld) and (4) Buyer shall have no obligation hereunder to
any Indemnified Party when and if a court of competent jurisdiction shall
ultimately determine, and such determination shall have become final and
nonappealable, that indemnification of such Indemnified Party in the manner
contemplated hereby is prohibited by applicable law. Any Indemnified Party
wishing to claim Indemnification under this Section 7.8, upon learning of
any such claim, action, suit, proceeding or investigation, shall notify
promptly Buyer thereof, provided that the failure to so notify shall not
affect the obligations of Buyer under this Section 7.8 except to the extent
such failure to notify prejudices Buyer. Buyer's obligations under this
Section 7.8 shall continue in full force and effect for a period of six (6)
years from the Effective Time; provided, however, that all rights to
indemnification in respect of any claim (a "Claim") asserted or made within
such period shall continue until the final disposition of such Claim.
(b) Buyer shall cause the persons serving as officers and
directors of the Company immediately prior to the Effective Time to be
covered for a period of six (6) years from the Effective Time by the
directors' and officers' liability insurance policy maintained by the
Company (provided that Buyer may substitute therefor policies of at least
the same coverage and amounts containing terms and conditions which are not
less advantageous than such policy) with respect to acts or omissions
occurring prior to the Effective Time which were committed by such officers
and directors in their capacity as such; provided, however, that in no
event shall Buyer be required to expend on an annual basis more than 175%
of the current amount expended by the Company (the "Insurance Amount") to
maintain or procure insurance coverage, and further provided that if Buyer
is unable to maintain or obtain the insurance called for by this Section
7.8(b) Buyer shall use all reasonable efforts to obtain as much comparable
insurance as is available for the Insurance Amount.
(c) In the event Buyer or any of its successors or
assigns (i) consolidates with or merges into any other person and shall not
be the continuing or surviving corporation or entity of such consolidation
or merger, or (ii) transfers or conveys all or substantially all of its
properties and assets to any person, then, and in each such case, to the
extent necessary, proper provision shall be made so that the successors and
assigns of Buyer assume the obligations set forth in this section.
(d) The provisions of this Section 7.8 are intended to be
for the benefit of, and shall be enforceable by, each Indemnified Party and
his or her heirs and representatives.
Section 7.9 Additional Agreements. In case at any time after
the Effective Time any further action is necessary or desirable to carry
out the purposes of this Agreement or to vest the Surviving Corporation
with full title to all properties, assets, rights, approvals, immunities
and franchises of any of the parties to the Merger, the proper officers and
directors of each party to this Agreement and their respective Subsidiaries
shall take all such necessary action as may be reasonably requested by
Buyer.
Section 7.10 Advice of Changes. Buyer and the Company shall
promptly advise the other party of any change or event having a Material
Adverse Effect on it or which it believes would or would be reasonably
likely to cause or constitute a material breach of any of its
representations, warranties or covenants contained herein. From time to
time prior to the Effective Time (and on the date prior to the Closing
Date), each party will supplement or amend its Disclosure Schedules
delivered in connection with the execution of this Agreement to reflect any
matter which, if existing, occurring or known at the date of this
Agreement, would have been required to be set forth or described in such
Disclosure Schedules or which is necessary to correct any information in
such Disclosure Schedules which has been rendered inaccurate thereby. No
supplement or amendment to such Disclosure Schedules shall have any effect
for the purpose of determining satisfaction of the conditions set forth in
Sections 8.2(a) or 8.3(a) hereof, as the case may be, or the compliance by
the Company or Buyer, as the case may be, with the respective covenants and
agreements of such parties contained herein.
Section 7.11 Current Information. (a)
During the period from the date of this Agreement to the Effective Time,
the Company will cause one or more of its designated representatives to
confer on a regular and frequent basis (not less than monthly) with
representatives of Buyer and to report the general status of the ongoing
operations of the Company and its Subsidiaries. The Company will promptly
notify Buyer of any material change in the normal course of business or
in the operation of the properties of the Company or any of its
Subsidiaries and of any governmental complaints, investigations or hearings
(or communications indicating that the same may be contemplated), or the
institution or the threat of significant litigation involving the Company
or any of its Subsidiaries, and will keep Buyer fully informed of such
events.
(b) During the period from the date of this Agreement
to the Effective Time, Buyer shall inform the Company of any proposed
acquisition or merger transaction involving Buyer.
Section 7.12 Execution and Authorization of Bank Merger
Agreement. As soon as reasonably practicable following a request made by
Buyer, (a) Buyer shall (i) cause the Board of Directors of Buyer Bank to
approve an Agreement and Plan of Merger providing for the merger of Company
Bank into Buyer Bank (the "Bank Merger Agreement"), (ii) cause Buyer Bank
to execute and deliver the Bank Merger Agreement, and (iii) approve the
Bank Merger Agreement as the sole stockholder of Buyer Bank, and (b) the
Company shall (i) cause the Board of Directors of the Company Bank to
approve the Bank Merger Agreement, (ii) cause the Company Bank to execute
and deliver the Bank Merger Agreement, and (iii) approve the Bank Merger
Agreement as the sole stockholder of the Company Bank. The Bank Merger
Agreement shall contain terms that are normal and customary in light of the
transactions contemplated hereby and such additional terms as are necessary
to carry out the purposes of this Agreement.
Section 7.13 Coordination of Dividends. From the date of this
Agreement to the Effective Time, each of Buyer and the Company shall
coordinate with the other the declaration, record and payment dates with
respect to dividends in respect of the Buyer Common Stock and the Company
Common Stock and the record dates and payments dates relating thereto, it
being the intention of the parties that the holders of Buyer Common Stock
or Company Common Stock shall not receive more than one dividend, or fail
to receive one dividend, for any single calendar quarter with respect to
their shares of Buyer Common Stock and/or Company Common Stock and any
shares of Buyer Common Stock any holder of Company Common Stock receives in
exchange therefor in the Merger.
Section 7.14 Directorship. Effective as of the Effective Time,
Buyer shall cause its Board of Directors to be expanded by one member and
shall appoint Xxxxxxx X. Xxxxxxx to fill the vacancy on Buyer's Board of
Directors created by such increase as of the Effective Time and shall cause
Xx. Xxxxxxx to be nominated for election to the Board of Directors for a
period not less than three (3) years.
Section 7.15 Accountants' Letter. The Company shall
use its reasonable efforts to cause to be delivered to Buyer a letter of
its independent public accountants dated (i) the date on which the S-4
shall become effective and (ii) a date shortly prior to the Effective Time,
and addressed to Buyer, in form and substance customary for "comfort"
letters delivered by independent accountants in accordance with Statement
of Financial Accounting Standards No. 72.
Section 7.16 Certain Revaluations, Changes and Adjustments. At
or before the Effective Time, upon the request of Buyer, the Company shall,
consistent with GAAP, modify and change its loan, litigation and real
estate valuation policies and practices (including loan classifications and
levels of reserves) so as to be applied consistently on a mutually
satisfactory basis with those of Buyer and establish such accruals and
reserves as shall be necessary to reflect Merger-related expenses and costs
incurred by the Company, provided, however, that the Company shall not be
required to take such action unless Parent acknowledges in writing that all
conditions to closing set forth in Article VIII have been satisfied or
waived (other than those conditions relating to delivery of documents on
the Closing Date); provided further, however, that no accrual or reserve
made by the Company or any Company Subsidiary pursuant to this Section 7.16
shall constitute or be deemed to be a breach, violation of or failure to
satisfy any representation, warranty, covenant, condition or other
provision of this Agreement or otherwise be considered in determining
whether any such breach, violation or failure to satisfy shall have
occurred.
Section 7.17 Year 2000. Each of Buyer and the Company shall use
its commercially reasonable efforts to implement its respective Y2K Plan.
At the request of the other party, each of Buyer and the Company shall
periodically update the other party regarding its process with respect to
its Y2K Plan.
Section 7.18 JSB Financial Merger. It is understood by the
parties that the Merger shall be accounted for under the purchase method of
accounting. Accordingly, the parties agree to use all reasonable efforts to
cause the Effective Time to occur prior to the consummation of the merger
between Buyer and JSB Financial, Inc. pursuant to the Agreement and Plan of
Merger (as amended) between such parties dated as of August 16, 1999.
Section 7.19 Advisory Board. Buyer shall, as of the Effective
Time, invite Xxxxxx X. Xxxxxxxx and all of the members of the Company's
Board of Directors as of the date of this Agreement, other than Xx.
Xxxxxxx, who are willing to serve to be appointed as members of Buyer's
advisory board (the "Advisory Board"). The members of the Advisory Board
who are willing to so serve shall be elected to a term of three (3) years
beginning on the Closing Date and shall receive an annual retainer fee in
the amount set forth in Section 7.19 of the Buyer Disclosure Schedule.
ARTICLE ARTICLE VIII
CONDITIONS PRECEDENT
Section 8.1 Conditions to Each Party's Obligation To Effect the
Merger. The respective obligations of each party to effect the Merger shall
be subject to the satisfaction at or prior to the Effective Time of the
following conditions:
(a) Stockholder Approval. This Agreement shall have been
approved and adopted by the requisite vote of the holders of the
outstanding shares of Company Common Stock under applicable law.
(b) NYSE Listing. The shares of Buyer Common Stock which
shall be issued to the stockholders of the Company upon consummation of the
Merger shall have been authorized for listing on the NYSE, subject to
official notice of issuance.
(c) Other Approvals. All regulatory approvals required to
consummate the transactions contemplated hereby (including the Merger)
shall have been obtained and shall remain in full force and effect and all
statutory waiting periods in respect thereof shall have expired (all such
approvals and the expiration of all such waiting periods being referred to
herein as the "Requisite Regulatory Approvals").
(d) S-4. The S-4 shall have become effective under the
Securities Act and no stop order suspending the effectiveness of the S-4
shall have been issued and no proceedings for that purpose shall have been
initiated or threatened by the SEC.
(e) No Injunctions or Restraints; Illegality. No order,
injunction or decree issued by any court or agency of competent
jurisdiction or other legal restraint or prohibition (an "Injunction")
preventing the consummation of the Merger shall be in effect. No statute,
rule, regulation, order, injunction or decree shall have been enacted,
entered, promulgated or enforced by any Governmental Entity which
prohibits, restricts or makes illegal consummation of the Merger.
Section 8.2 Conditions to Obligations of Buyer. The obligation
of Buyer to effect the Merger is also subject to the satisfaction or waiver
by Buyer at or prior to the Effective Time of the following conditions:
(a) Representations and Warranties. (i) Subject to
Section 3.2, the representations and warranties of the Company set forth in
this Agreement (other than those set forth in Sections 4.2, 4.3(a),
4.3(b)(i), 4.6, 4.7, 4.8(a)(ii), 4.8(b), 4.11(a), 4.12, 4.15(a), 4.18,
4.21, 4.26 and 4.27) shall be true and correct as of the date of this
Agreement and (except to the extent such representations and warranties
speak as of an earlier date) as of the Closing Date as though made on and
as of the Closing Date; and (ii) the representations and warranties of the
Company set forth in Sections 4.2, 4.3(a), 4.3(b)(i), 4.6, 4.7, 4.8(a)(ii),
4.8(b), 4.11(a), 4.12, 4.15(a), 4.18, 4.21, 4.26 and 4.27 of this Agreement
shall be true and correct in all material respects (without giving effect
to Section 3.2 of this Agreement) as of the date of this Agreement and
(except to the extent such representations and warranties speak as of an
earlier date) as of the Closing Date as though made on and as of the
Closing Date. Buyer shall have received a certificate signed on behalf of
the Company by the Chief Executive Officer and the Chief Financial Officer
of the Company to the foregoing effect.
(b) Performance of Obligations of the Company. The
Company shall have performed in all material respects all obligations
required to be performed by it under this Agreement at or prior to the
Closing Date, and Buyer shall have received a certificate signed on behalf
of the Company by the Chief Executive Officer and the Chief Financial
Officer of the Company to such effect.
(c) Consents Under Agreements. The consent, approval or
waiver of each person (other than the Governmental Entities referred to in
Section 8.1(c)) whose consent or approval shall be required in order to
permit the succession by the Surviving Corporation pursuant to the Merger
to any obligation, right or interest of the Company or any Subsidiary of
the Company under any loan or credit agreement, note, mortgage, indenture,
lease, license or other agreement or instrument shall have been obtained,
except where the failure to obtain such consent, approval or waiver would
not have a Material Adverse Effect on the Company.
(d) No Pending Governmental Actions. No proceeding
initiated by any Governmental Entity seeking an Injunction shall be pending.
(e) Federal Income Tax Opinion. Buyer shall have received
an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to Buyer
("Buyer's Counsel"), dated the Effective Date, in form and substance
reasonably satisfactory to Buyer, substantially to the effect that, on the
basis of facts, representations and assumptions set forth in such opinion
which are consistent with the state of facts existing at the Effective
Time, the Merger will be treated as a reorganization within the meaning of
Section 368(a) of the Code. In rendering such opinion, Buyer's Counsel may
require and rely upon representations and covenants, including those
contained in certificates of officers of Buyer, the Company and others
reasonably satisfactory in form and substance to such counsel.
Section 8.3 Conditions to Obligations of the Company. The
obligation of the Company to effect the Merger is also subject to the
satisfaction or waiver by the Company at or prior to the Effective Time of
the following conditions:
(a) Representations and Warranties. (i) Subject to
Section 3.2, the representations and warranties of Buyer (other than those
set forth in Sections 5.2, 5.3(a), 5.3(b), 5.3(c)(i), 5.6, 5.7, 5.8(ii),
5.11(a), 5.12 and 5.15) set forth in this Agreement shall be true and
correct as of the date of this Agreement and (except to the extent such
representations and warranties speak as of an earlier date) as of the
Closing Date as though made on and as of the Closing Date; and (ii) the
representations and warranties of Buyer set forth in Sections 5.2, 5.3(a),
5.3(b), 5.3(c)(i), 5.6, 5.7, 5.8(ii), 5.11(a), 5.12 and 5.15 of this
Agreement shall be true and correct in all material respects (without
giving effect to Section 3.2 of this Agreement) as of the date of this
Agreement and (except to the extent such representations and warranties
speak as of an earlier date) as of the Closing Date as though made on and
as of the Closing Date. The Company shall have received a certificate
signed on behalf of Buyer by the Chief Executive Officer and the Chief
Financial Officer of Buyer to the foregoing effect.
(b) Performance of Obligations of Buyer. Buyer shall have
performed in all material respects all obligations required to be performed
by it under this Agreement at or prior to the Closing Date, and the Company
shall have received a certificate signed on behalf of Buyer by the Chief
Executive Officer and the Chief Financial Officer of Buyer to such effect.
(c) Consents Under Agreements. The consent, approval or
waiver of each person (other than the Governmental Entities referred to in
Section 8.1(c)) whose consent or approval shall be required in connection
with the transactions contemplated hereby under any loan or credit
agreement, note, mortgage, indenture, lease, license or other agreement or
instrument to which Buyer or any of its Subsidiaries is a party or is
otherwise bound shall have been obtained, except where failure to obtain
such consents and approvals would not, individually or in the aggregate,
have a Material Adverse Effect on Buyer and its Subsidiaries taken as a
whole (after giving effect to the transactions contemplated hereby).
(d) No Pending Governmental Actions. No proceeding
initiated by any Governmental Entity seeking an Injunction shall be pending.
(e) Federal Income Tax Opinion. The Company shall have
received an opinion of Xxxxxxx, Xxxxxx & Xxxxxxxx LLP (the "Company's
Counsel"), in form and substance reasonably satisfactory to the Company,
dated the Effective Date, substantially to the effect that, on the basis of
facts, representations and assumptions set forth in such opinion which are
consistent with the state of facts existing at the Effective Time, the
Merger will be treated as a reorganization within the meaning of Section
368(a) of the Code. In rendering such opinion, the Company's Counsel may
require and rely upon representations and covenants, including those
contained in certificates of officers of Buyer, the Company and others,
reasonably satisfactory in form and substance to such counsel.
ARTICLE ARTICLE IX
TERMINATION AND AMENDMENT
Section 9.1 Termination. This Agreement may be terminated at
any time prior to the Effective Time, whether before or after approval of
the matters presented in connection with the Merger by the stockholders of
the Company:
(a) by mutual consent of the Company and Buyer in a
written instrument, if the Board of Directors of each so determines by a
vote of a majority of the members of its entire Board;
(b) by either Buyer or the Company upon written notice to
the other party (i) 60 days after the date on which any request or
application for a Requisite Regulatory Approval shall have been denied or
withdrawn at the request or recommendation of the Governmental Entity which
must grant such Requisite Regulatory Approval, unless within the 60-day
period following such denial or withdrawal a petition for rehearing or an
amended application has been filed with the applicable Governmental Entity,
provided, however, that no party shall have the right to terminate this
Agreement pursuant to this Section 9.1(b)(i) if such denial or request or
recommendation for withdrawal shall be due to the failure of the party
seeking to terminate this Agreement to perform or observe the covenants and
agreements of such party set forth herein or (ii) if any Governmental
Entity of competent jurisdiction shall have issued a final nonappealable
order enjoining or otherwise prohibiting the Merger;
(c) by either Buyer or the Company if the Merger shall
not have been consummated on or before June 30, 2000, unless the failure of
the Closing to occur by such date shall be due to the failure of the party
seeking to terminate this Agreement to perform or observe the covenants and
agreements of such party set forth herein;
(d) by either Buyer or the Company (provided that the
terminating party shall not be in material breach of any of its obligations
under Section 7.3) if any approval of the stockholders of the Company
required for the consummation of the Merger shall not have been obtained by
reason of the failure to obtain the required vote at a duly held meeting of
such stockholders or at any adjournment or postponement thereof;
(e) by either Buyer or the Company (provided that the
terminating party is not then in material breach of any representation,
warranty, covenant or other agreement contained herein) if there shall have
been a material breach of any of the representations or warranties set
forth in this Agreement on the part of the other party, which breach is not
cured within thirty days following written notice to the party committing
such breach, or which breach, by its nature, cannot be cured prior to the
Closing; provided, however, that neither party shall have the right to
terminate this Agreement pursuant to this Section 9.1(e) unless the breach
of representation or warranty, together with all other such breaches, would
entitle the party receiving such representation not to consummate the
transactions contemplated hereby under Section 8.2(a) (in the case of a
breach of representation or warranty by the Company) or Section 8.3(a) (in
the case of a breach of representation or warranty by Buyer);
(f) by either Buyer or the Company (provided that the
terminating party is not then in material breach of any representation,
warranty, covenant or other agreement contained herein) if there shall have
been a material breach of any of the covenants or agreements set forth in
this Agreement on the part of the other party, which breach shall not have
been cured within thirty days following receipt by the breaching party of
written notice of such breach from the other party hereto, or which breach,
by its nature, cannot be cured prior to the Closing;
(g) by Buyer, if the Board of Directors of the Company
does not publicly recommend in the Proxy Statement that the Company's
stockholders approve and adopt this Agreement or if, after recommending in
the Proxy Statement that stockholders approve and adopt this Agreement, the
Board of Directors of the Company shall have withdrawn, modified or amended
such recommendation in any manner adverse to Buyer; or
(h) by the Company at any time during the five business-day
period commencing on the first business day after the Determination Date (as
defined below), if both of the following conditions are satisfied:
(1) the Average Closing Price (as defined below) shall be less
than $16.20 and
(2) (i) the number obtained by dividing the Average Closing
Price by the Starting Price (such number being referred to herein as
the "Buyer Ratio") shall be less than (ii) the number obtained by
dividing the Final Index Price by the Initial Index Price and
subtracting 0.15 from such quotient (such number being referred to
herein as the "Index Ratio"),
subject to the following provisions. If the Company elects to exercise its
termination right pursuant to the immediately preceding sentence, it shall
give prompt written notice to Buyer; provided that such notice of election
to terminate may be withdrawn at any time within the aforementioned five
business-day period. During the five business-day period commencing with
its receipt of such notice, Buyer shall have the option of adjusting the
Exchange Ratio to equal the lesser of (i) a number equal to a quotient
(rounded to the nearest one-ten-thousandth), the numerator of which is the
product of 0.85, the Starting Price and the Exchange Ratio (as then in
effect) and the denominator of which is the Average Closing Price, and (ii)
a number equal to a quotient (rounded to the nearest one-ten-thousandth),
the numerator of which is the Index Ratio multiplied by the Exchange Ratio
(as then in effect) and the denominator of which is the Buyer Ratio. If
Buyer makes the election contemplated by the preceding sentence, within
such five business-day period, it shall give prompt written notice to the
Company of such election and the revised Exchange Ratio, whereupon no
termination shall have occurred pursuant to this Section 9.1(h) 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 Section 9.1(h). For purposes of
this Section 9.1(h), the following terms shall have the meanings indicated:
"Average Closing Price" means the average of the last reported
sale prices per share of Buyer Common Stock as reported on NYSE (as
reported in The Wall Street Journal or, if not reported therein, in another
mutually agreed upon authoritative source) for the 20 consecutive trading
days on the NYSE ending at the close of trading on the Determination Date.
"Determination Date" means the business day prior to the date
on which the last of the Requisite Regulatory Approvals shall have been
received, without regard to any requisite waiting periods in respect
thereof.
"Final Index Price" means the sum of the Final Prices for each
company comprising the Index Group.
"Final Price", with respect to any company belonging to the
Index Group, means the product of (x) the average of the daily closing
sales prices of a share of common stock of such company (and if there is no
closing sales price on any such day, then the mean between the closing bid
and the closing asked prices on that day), as reported on the consolidated
transaction reporting system for the market or exchange on which such
common stock is principally traded, for the 20 consecutive trading days
ending at the close of trading on the Determination Date, and (y) the
weighting set forth opposite such company's name in the definition of
"Index Group" below.
"Index Group" means the group of each of the twenty (20) bank
holding companies listed below, the common stock of each of which shall be
publicly traded and as to which there shall not have been, since the
Starting Date and before the Determination Date, an announcement of a
proposal (i) for such company to be acquired or (ii) for such company to
acquire another company or companies in transactions with a value exceeding
25% of the acquiror's market capitalization as of the Starting Date. In the
event that, on or prior to the date immediately preceding the Determination
Date, the common stock of any such company ceases to be publicly traded or
any such announcement is made with respect to any such company, such
company will be removed from the Index Group, and the weights (which have
been determined based on the number of outstanding shares of common stock)
redistributed proportionately for purposes of determining the Index Price.
The twenty (20) bank holding companies and the weights attributed to them
are as follows:
Company Symbol Weighting
------- ------ ---------
Astoria Financial Corporation ASFC 4.76%
CCB Financial Corporation CCB 3.45%
Charter One Financial, Inc. COFI 14.35%
Xxxxxxxxxx Corporation CHZ 2.45%
Commerce Bancorp, Inc./NJ CBH 2.41%
First Commonwealth Financial Corporation FCF 2.69%
FirstMerit Corporation FMER 7.86%
Xxxxxx Financial Corporation FULT 6.00%
GreenPoint Financial Corp. GPT 9.50%
Independence Community Bank Corp. ICBC 5.91%
Keystone Financial, Inc. KSTN 4.21%
M & T Bank Corporation MTB 0.68%
Peoples Heritage Financial Group, Inc. PHBK 9.10%
Queens County Bancorp, Inc. QCSB 1.86%
Richmond County Financial Corp. RCBK 2.79%
Xxxxxx Bancorp, Inc. RSLN 6.68%
Staten Island Bancorp, Inc. SIB 3.54%
Susquehanna Bancshares, Inc. SUSQ 3.21%
Valley National Bancorp VLY 5.25%
Xxxxxxx Financial Corporation WBST 3.31%
-----
100.00%
"Initial Index Price" means the sum of the Initial Prices for
each company comprising the Index Group. The "Initial Price," with respect
to any company belonging to the Index Group, means the product of (x) the
per share closing sales price of the common stock of such company, as such
price was reported on the consolidated transaction reporting system for the
market or exchange on which such common stock was principally traded on
August 27, 1999, multiplied by (y) the weighting set forth opposite such
company's name above.
"Starting Date" means August 27, 1999.
"Starting Price" means $19.0625.
If Buyer of any company belonging to the Index Group 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 weighting and/or the prices for the
common stock of such company or Buyer shall be appropriately adjusted for
the purposes of applying this Section 9.1(h).
Section 9.2 Effect of Termination; Expenses. In the event of
termination of this Agreement by either Buyer or the Company as provided in
Section 9.1, this Agreement shall forthwith become void and have no effect
except that (i) Sections 7.2(c), 9.2 and 10.4 shall survive any termination
of this Agreement, and (ii) notwithstanding anything to the contrary
contained in this Agreement, no party shall be relieved or released from
any liabilities or damages arising out of its willful breach of any
provision of this Agreement.
Section 9.3 Amendment. Subject to compliance with applicable
law, this Agreement may be amended by the parties hereto, by action taken
or authorized by their respective Boards of Directors, at any time before
or after approval of the matters presented in connection with the Merger by
the stockholders of the Company; provided, however, that after any approval
of the transactions contemplated by this Agreement by the Company's
stockholders, there may not be, without further approval of such
stockholders, any amendment of this Agreement which reduces the amount or
changes the form of the consideration to be delivered to the Company
stockholders hereunder other than as contemplated by this Agreement. This
Agreement may not be amended except by an instrument in writing signed on
behalf of each of the parties hereto.
Section 9.4 Extension; Waiver. At any time prior to the
Effective Time, each of the parties hereto, by action taken or authorized
by its Board of Directors, may, to the extent legally allowed, (a) extend
the time for the performance of any of the obligations or other acts of the
other party hereto, (b) waive any inaccuracies in the representations and
warranties of the other party contained herein or in any document delivered
pursuant hereto and (c) waive compliance by the other party with any of its
agreements contained herein, or waive compliance with any of the conditions
to its obligations hereunder. Any agreement on the part of a party hereto
to any such extension or waiver shall be valid only if set forth in a
written instrument signed on behalf of such party, but such extension or
waiver or failure to insist on strict compliance with an obligation,
covenant, agreement or condition shall not operate as a waiver of, or
estoppel with respect to, any subsequent or other failure.
ARTICLE ARTICLE X
GENERAL PROVISIONS
Section 10.1 Closing. Subject to the terms and conditions of
this Agreement, the closing of the Merger (the "Closing") will take place
at 10:00 a.m. on the first day which is (a) the last business day of a
month and (b) at least two business days after the satisfaction or waiver
(subject to applicable law) of the latest to occur of the conditions set
forth in Article VIII hereof (other than those conditions which relate to
actions to be taken at the Closing)(the "Closing Date"), at the offices of
Buyer's Counsel unless another time, date or place is agreed to in writing by
the parties hereto.
Section 10.2 Alternative Structure. Notwithstanding anything to
the contrary contained in this Agreement, prior to the Effective Time,
Buyer shall be entitled to revise the structure of the Merger and the
related transactions contemplated hereby (including, without limitation,
(x) substituting a subsidiary of Buyer as a Constituent Corporation in the
Merger, (y) providing that a different entity shall be the Surviving
Corporation in the Merger, and (z) providing for the merger of Company Bank
into Buyer Bank in accordance with a Bank Merger Agreement), provided that
each of the transactions comprising such revised structure shall (i) fully
qualify as, or fully be treated as part of, one or more tax-free
reorganizations within the meaning of Section 368(a) of the Code, (ii) not
change the amount of consideration to be received by the stockholders of
the Company, and (iii) be capable of consummation in as timely a manner as
the structure contemplated herein. This Agreement and any related documents
shall be appropriately amended in order to reflect any such revised
structure.
Section 10.3 Nonsurvival of Representations, Warranties and
Agreements. None of the representations, warranties, covenants and
agreements in this Agreement or in any instrument delivered pursuant to
this Agreement (other than pursuant to the Option Agreement which shall
terminate in accordance with its terms) shall survive the Effective Time,
except for those covenants and agreements contained herein and therein
which by their terms apply in whole or in part after the Effective Time.
Section 10.4 Expenses. All costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby
shall be paid by the party incurring such expense, provided, however, that
the costs and expenses of printing and mailing the Proxy Statement to the
stockholders of the Company and Buyer, and all filing and other fees paid
to the SEC or any other Governmental Entity in connection with the Merger
and the other transactions contemplated hereby, shall be borne equally by
Buyer and the Company, provided further, however, that nothing contained
herein shall limit either party's rights to recover any liabilities or
damages arising out of the other party's willful breach of any provision of
this Agreement.
Section 10.5 Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given if delivered
personally, telecopied (with confirmation), mailed by registered or
certified mail (return receipt requested) or delivered by an express
courier (with confirmation) to the parties at the following addresses (or
at such other address for a party as shall be specified by like notice):
(a) if to Buyer, to:
North Fork Bancorporation, Inc.
000 Xxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xx. Xxxx Xxxx Xxxxx
Chairman, President and
Chief Executive Officer
with a copy to:
Xxxxxxx X. Xxxxxxxxxx, Esq.
Skadden, Arps Slate, Xxxxxxx
& Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
and
(b) if to the Company, to:
Reliance Bancorp, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xx. Xxxxxxx X. Xxxxxxx
President and Chief
Executive Officer
with a copy to:
Xxxxxxxx X.X. Spaccasi
Xxxxxxx, Xxxxxx & Xxxxxxxx
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Facsimile: (000) 000-0000
Section 10.6 Interpretation. When a reference is made in
this Agreement to Sections, Exhibits or Schedules, such reference
shall be to a Section of or Exhibit or Schedule to this Agreement
unless otherwise indicated. The table of contents and headings contained in
this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement. Whenever the words
"include", "includes" or "including" are used in this Agreement, they shall
be deemed to be followed by the words "without limitation". The phrases
"the date of this Agreement", "the date hereof" and terms of similar
import, unless the context otherwise requires, shall be deemed to refer to
August 30, 1999.
Section 10.7 Counterparts. This Agreement may be executed in
counterparts, all of which shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that
all parties need not sign the same counterpart.
Section 10.8 Entire Agreement. This Agreement (including the
documents and the instruments referred to herein), together with the Option
Agreement, constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among the parties
with respect to the subject matter hereof.
Section 10.9 Governing Law. This Agreement shall be governed
and construed in accordance with the laws of the State of New York, without
regard to any applicable conflicts of law.
Section 10.10 Enforcement of Agreement. The parties hereto
agree that irreparable damage would occur in the event that the provisions
contained in and Section 7.2(c) of this Agreement were not performed in
accordance with its specific terms or was otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of Section 7.2(c) of this Agreement and to
enforce specifically the terms and provisions thereof in any court of the
United States or any state having jurisdiction, this being in addition to
any other remedy to which they are entitled at law or in equity.
Section 10.11 Severability. Any term or provision of this
Agreement which is invalid or unenforceable in any jurisdiction shall, as
to that jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining
terms and provisions of this Agreement or affecting the validity or
enforceability of any of the terms or provisions of this Agreement in any
other jurisdiction. If any provision of this Agreement is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
Section 10.12 Publicity. Except as otherwise required by law or
by the rules of the NYSE or The NASDAQ Stock Market, so long as this
Agreement is in effect, neither Buyer nor the Company shall, or shall
permit any of its Subsidiaries to, issue or cause the publication of any
press release or other public announcement with respect to, or otherwise
make any public statement concerning, the transactions contemplated by this
Agreement without the consent of the other party, which consent shall not
be unreasonably withheld.
Section 10.13 Assignment; No Third Party Beneficiaries. Neither
this Agreement nor any of the rights, interests or obligations hereunder
shall be assigned by any of the parties hereto (whether by operation of law
or otherwise) without the prior written consent of the other parties.
Subject to the preceding sentence, this Agreement will be binding upon,
inure to the benefit of and be enforceable by the parties and their
respective successors and assigns. Except as otherwise expressly provided
herein, this Agreement (including the documents and instruments referred to
herein) is not intended to confer upon any person other than the parties
hereto any rights or remedies hereunder.
IN WITNESS WHEREOF, Buyer and the Company have caused this
Agreement to be executed by their respective officers thereunto duly
authorized as of the date first above written.
NORTH FORK BANCORPORATION, INC.
By: /s/Xxxx Xxxx Xxxxx
--------------------------------
Xxxx Xxxx Xxxxx
Chairman of the Board,
President and Chief Executive
Officer
RELIANCE BANCORP, INC.
By: /s/Xxxxxxx X. Xxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxx
President and Chief Executive
Officer
