AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated August 26, 1999 (this
"Agreement"), is among Peapack-Gladstone Financial Corporation, a corporation
chartered under the laws of the State of New Jersey ("PGFC"), Peapack-Gladstone
Bank, a commercial bank chartered under the laws of the State of New Jersey and
a wholly-owned subsidiary of PGFC ("PGB"), Chatham Savings, FSB, a
federally-chartered savings bank ("CSB"), and Xxxxx X. Weichert, sole
shareholder of CSB ("Weichert").
WHEREAS, PGFC and PGB desire to acquire CSB and CSB's Board of
Directors has determined, based upon the terms and conditions hereinafter set
forth, that the acquisition described herein is in the best interests of CSB and
its sole shareholder; and
WHEREAS, the acquisition will be accomplished by merging CSB
into PGB with PGB as the surviving bank, and the shareholder of CSB receiving
the consideration hereinafter set forth; and
WHEREAS, the Boards of Directors of CSB, PGFC and PGB have
each duly adopted and approved this Agreement and the sole shareholder has
approved this Agreement as of the date hereof; and
WHEREAS, at the closing PGFC and Weichert will execute and
deliver a registration rights agreement (the "Registration Rights Agreement") in
the form of Exhibit A, annexed hereto, to provide Weichert with certain rights
and PGFC with certain obligations to register for resale the shares of PGFC
common stock to be issued in connection with the merger;
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements herein contained, and intending to be legally
bound, the parties hereto agree as follows:
ARTICLE I
THE MERGER
1.1. The Merger. Subject to the terms and conditions of this
Agreement, at the Effective Time (as defined in Section 1.6), CSB shall be
merged with and into PGB under the charter of PGB (the "Merger") in accordance
with the provisions of the Home Owners Loan Act, as amended and the regulations
of the Office of Thrift Supervision (the "OTS") and the New Jersey Banking Act
of 1948, as amended, and PGB shall be the surviving bank (the "Surviving Bank"),
the name of which shall be Peapack-Gladstone Bank. The principal office of the
Surviving Bank shall be the principal office of the PGB. Exhibit 1 to this
Agreement lists (i) the locations of the principal and branch offices of CSB and
PGB, (ii) the locations of all branch offices and the main office of the
Surviving Bank, (iii) the amount of the capital stock, the number of shares, the
par value and the amount of surplus of the Surviving Bank.
1.2. Effect of the Merger. At the Effective Time, the
Surviving Bank shall be considered the same business and corporate entity as
each of CSB and PGB and thereupon and thereafter, all the property, rights,
powers and franchises of each of CSB and PGB shall vest in the Surviving Bank
and the Surviving Bank shall be subject to and be deemed to have assumed all of
the debts, liabilities, obligations and duties of each of CSB and PGB and shall
have succeeded to all of each of their relationships, fiduciary or otherwise, as
fully and to the same extent as if such property rights, privileges, powers,
franchises, debts, obligations, duties and relationships had been originally
acquired, incurred or entered into by the Surviving Bank.
1.3. Certificate of Incorporation. The Certificate of
Incorporation of PGB as it exists immediately prior to the Effective Time shall
continue as the Certificate of Incorporation of the Surviving Bank.
1.4. Bylaws. The Bylaws of PGB as they exist immediately prior
to the Effective Time shall continue as the Bylaws of the Surviving Bank until
otherwise amended as provided by law.
1.5. Directors and Officers. At the Effective Time, the
directors and officers of PGB shall become the directors and officers of the
Surviving Bank, with the addition of one director provided for in Section 5.17
hereof. The names of the persons who will be directors and officers of the
Surviving Bank (not including the name of the director to be nominated pursuant
to Section 5.17) are included on Exhibit 1.
1.6. Effective Time and Closing. The Merger shall become
effective (and be consummated) at the date and time (the "Effective Time")
specified in a notice to the FRB (the "FRB Notice") which will be filed by PGB
with the approval of CSB, which approval shall not be unreasonably withheld or
delayed. PGB shall file the FRB Notice immediately after the closing of the
Merger (the "Closing"). The FRB Notice shall specify as the Effective Time the
close of business on the date of the Closing unless a different Effective Time
is agreed to by PGB and CSB. The Closing shall take place at 10:00 a.m., at the
offices of Pitney, Xxxxxx, Xxxx & Xxxxx, Florham Park, New Jersey, on the tenth
business day following the Determination Date, or at such other place, time or
date as PGB and CSB may mutually agree upon. The "Determination Date" shall mean
the first date on which all necessary regulatory and governmental approvals and
consents have been received, all statutory waiting periods in respect thereof
have expired, and all other conditions to the consummation of the Merger
specified in Article VI hereof (other than the delivery of certificates,
opinions and other instruments and documents to be delivered at the Closing)
have been satisfied or waived.
1.7. Capital Stock. As of June 30, 1999, PGB had capital of
$3,892,063, divided into 1,167,619 shares of common stock, each of $3.33 par
value, $6,218,047 of surplus, and undivided profits of $27,414,328. As of June
30, 1999, CSB had capital of $6,680,419, divided into 140,000 shares of common
stock, each of $.01 par value, $1,528,120 of surplus, and $5,128,787 of
undivided profits. At the Effective Time, the amount of capital stock of PGB
shall be $3,892,063, divided into 1,167,619 shares of common stock, each of
$3.33 par value, and PGB shall have a surplus of $6,218,047 and undivided
profits, including capital reserves, which when combined with the capital and
surplus will be equal to the combined capital structures of PGB and CSB as
stated in the preceding two sentences, adjusted however, for earnings and
dividends declared and paid by PGB and CSB between June 30, 1999 and the
Effective Time.
ARTICLE II
CONVERSION OF CHATHAM SAVINGS, FSB SHARES
2.1. Conversion of CSB Common Stock. Each share of common
stock, par value $.01 per share, of CSB ("CSB Common Stock"), issued and
outstanding immediately prior to the Effective Time (other than any shares of
CSB Common Stock retired pursuant to Section 2.4) shall, by virtue of the Merger
and without any action on the part of the holder thereof, be converted at the
Effective Time as follows:
(a) Exchange Ratio. Subject to the provisions of this Section
2.1, each share of CSB Common Stock issued and outstanding immediately prior to
the Effective Time (excluding any shares of CSB Common Stock retired pursuant to
Section 2.4) shall be converted at the Effective Time into the right to receive
2.0798 shares (the "Exchange Ratio") of common stock, no par value, of PGFC
("PGFC Common Stock"). An appropriate legend will be placed on all certificates
representing PGFC Common Stock issued in the Merger evidencing that the shares
are being issued in a private placement. PGFC agrees to remove such legends upon
written request, accompanied by a letter, from a law firm and in form and
substance acceptable to PGFC, opining that such legends are no longer required
by applicable securities laws.
(b) Fractional Shares. No fractional shares of PGFC Common
Stock shall be issued pursuant to the Merger, and, in lieu thereof, a cash
payment shall be made equal to $52.38 multiplied by the fraction of a share held
by the shareholder.
(c) Capital Changes. If between the date of this Agreement and
the Effective Time the outstanding shares of PGFC Common Stock shall have been
changed into a different number of shares or a different class, by reason of any
stock dividend, stock split, reclassification, recapitalization, combination or
exchange of shares ("Capital Change"), the Exchange Ratio shall be
correspondingly adjusted to reflect such stock dividend, stock split,
reclassification, recapitalization, combination or exchange of shares.
(d) Cancellation of CSB Certificates. After the Effective
Time, each such share of CSB Common Stock shall no longer be outstanding and
shall automatically be cancelled, and each of the certificates (the
"Certificates") previously evidencing any shares of CSB Common Stock outstanding
immediately prior to the Effective Time (other than any shares of CSB Common
Stock retired pursuant to Section 2.4) shall thereafter represent the right to
receive the consideration described in Sections 2.1(a) and 2.1(b) hereof. After
the Effective Time, the shareholder (or shareholders, as the case may be, of CSB
(referred to interchangeably as the "Shareholder" or "Shareholders") shall cease
to have any rights with respect to such shares of CSB Common Stock except as
otherwise provided herein or by law. The Certificates shall be exchanged for
certificates evidencing shares of PGFC Common Stock issued pursuant to this
Article II, upon the surrender of such Certificates in accordance with this
Article II.
2.2. Exchange of Shares.
(a) The parties shall exchange all the Certificates for all of
the consideration provided for in Section 2.1 at the Closing. Upon surrender of
a Certificate for exchange and cancellation at Closing, the record holder of the
shares represented by the Certificate shall on the date of the Closing receive
in exchange for the Certificate the consideration as provided in Section 2.1
hereof and the Certificate so surrendered shall be cancelled. No Shareholder
will receive the consideration to which that Shareholder would otherwise be
entitled until the Shareholder surrenders the Certificate for exchange or, in
lieu thereof, an appropriate Affidavit of Loss and Indemnity Agreement and/or a
bond as may be reasonably required in each case by PGFC. Notwithstanding the
time of surrender of the Certificates, the Shareholders shall be deemed
shareholders of PGFC for all purposes from the Effective Time, except that PGFC
shall withhold the payment of dividends from any Shareholder until that
Shareholder effects the exchange of his Certificates for PGFC Common Stock. The
Shareholder shall receive such withheld dividends, without interest, upon
effecting the share exchange.
(b) After the Effective Time, there shall be no transfers on
the stock transfer books of CSB of the shares of CSB Common Stock which were
outstanding immediately prior to the Effective Time and, if any Certificates
representing such shares are presented for transfer, they shall be cancelled and
exchanged for the consideration as provided in Section 2.1 hereof.
(c) If payment of the consideration as provided in Section 2.1
hereof is to be made in a name other than that in which the Certificate
surrendered in exchange therefor is registered, it shall be a condition of such
payment 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 payment shall pay to the
Trust Department of PGB (the "Exchange Agent") in advance any transfer or other
taxes required by reason of the payment to a person other than that of the
registered holder of the Certificate surrendered, or required for any other
reason, or shall establish to the reasonable satisfaction of the Exchange Agent
that such tax has been paid or is not payable.
2.3 PGB Common Stock. The shares of common stock of PGB
outstanding immediately prior to the Effective Time shall not be affected by the
Merger but shall be the same number of shares of the Surviving Bank.
2.4 Certain CSB Shares Retired. Each share of CSB Common Stock
that is either (a) owned by PGFC or any direct or indirect wholly-owned
subsidiary of PGFC (other than shares held in trust accounts, managed accounts
or in any similar manner as trustee or in a fiduciary capacity and shares held
as collateral or in lieu of a debt previously contracted) or (b) held in the
treasury of CSB shall be cancelled and retired at the Effective Time and no
capital stock of PGFC, cash or other consideration shall be paid or delivered in
exchange therefor.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
CHATHAM SAVINGS, FSB
References herein to the "CSB Disclosure Schedule" shall mean
all of the disclosure schedules required by this Agreement, dated as of the date
hereof and referenced to the specific sections and subsections of this
Agreement, which have been delivered on the date hereof, by CSB to PGFC and PGB.
CSB hereby represents and warrants to PGFC and PGB as follows:
3.1. Organization.
(a) CSB is a federally-chartered savings bank the deposits of
which are insured by the Savings Association Insurance Fund ("SAIF") of the
Federal Deposit Insurance Corporation (the "FDIC") to the fullest extent
permitted by law. CSB is duly organized, validly existing and in good standing
under the laws of the United States. CSB has the corporate power and authority
to own or lease all of its properties and assets and to carry on its business as
it is now being conducted and is duly licensed or qualified to do business and
is in good standing in each jurisdiction in which the nature of the business
conducted by it or the character or location of the properties and assets owned
or leased by it makes such licensing or qualification necessary, except where
the failure to be so licensed, qualified or in good standing would not have a
material adverse effect on the business, operations, assets or financial
condition of CSB. The CSB Disclosure Schedule sets forth true and complete
copies of the Charter and Bylaws (together, the "Governing Documents") of CSB as
in effect on the date hereof.
(b) Except as set forth on the CSB Disclosure Schedule, CSB
does not have any Subsidiaries. Each of the Subsidiaries set forth on the CSB
Disclosure Schedule are duly organized, validly existing and in good standing
under the laws of their respective jurisdictions. All of the CSB Subsidiaries,
including those set forth on the CSB Disclosure Schedule, are not active. The
term "Subsidiaries", when used in this Agreement with respect to CSB, means any
corporation, joint venture, association, partnership, trust or other entity in
which CSB has, directly or indirectly, at least a 50 percent interest or acts as
a general partner. Except as set forth in the CSB Disclosure Schedule, CSB does
not own or control, directly or indirectly, any equity interest in any
corporation, company, association, partnership, joint venture or other entity
and owns no real estate, except real estate used for its banking premises and
real estate in foreclosure.
3.2. Capitalization. The authorized capital stock of CSB
consists of 140,000 shares of CSB Common Stock. As of the date hereof, there
were 140,000 shares of CSB Common Stock issued and outstanding and no shares of
CSB Common Stock held in the treasury. As of the date hereof, there were no
shares of CSB Common Stock issuable upon exercise of outstanding options granted
pursuant to any CSB stock option plan. All issued and outstanding shares of CSB
Common Stock have been duly authorized and validly issued, and are fully paid
and no assessment has been made on such shares. The authorized but unissued
shares of CSB Common Stock are not subject to pre-emptive rights. CSB does not
have, nor is it bound by, any outstanding subscriptions, options, warrants,
calls, commitments or agreements of any character calling for the transfer,
purchase or issuance of any shares of capital stock of CSB or any securities
representing the right to purchase or otherwise receive any shares of such
capital stock or any securities convertible into or representing the right to
subscribe for any such shares, and there are no agreements or understandings
with respect to voting of any such shares.
3.3. Authority; No Violation.
(a) There is only one shareholder of CSB and, other than his
approval of this Agreement and the Merger in accordance with Section 5.7 hereof,
no shareholder consent or action is necessary to consummate the transactions
contemplated hereby. Subject to the parties obtaining all necessary regulatory
approvals, CSB has full corporate power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated hereby in
accordance with the terms hereof. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly and
validly approved by the Board of Directors of CSB. Except for the consents and
approvals described in paragraph (b) below, no other corporate proceedings on
the part of CSB are necessary to consummate the transactions contemplated
hereby. This Agreement has been duly and validly executed and delivered by CSB
and constitutes the valid and binding obligation of CSB, enforceable against CSB
in accordance with its terms, except to the extent that enforcement may be
limited by (i) bankruptcy, insolvency, reorganization, moratorium,
conservatorship, receivership or other similar laws now or hereafter in effect
relating to or affecting the enforcement of creditors' rights generally or the
rights of creditors of federally-chartered savings banks, (ii) general equitable
principles, and (iii) laws relating to the safety and soundness of insured
depository institutions and except that no representation is made as to the
effect or availability of indemnification, equitable remedies or injunctive
relief.
(b) Neither the execution and delivery of this Agreement by
CSB, nor the consummation by CSB of the transactions contemplated hereby in
accordance with the terms hereof, or compliance by CSB with any of the terms or
provisions hereof, will (i) violate any provision of CSB's Governing Documents
or the Governing Documents of any of the CSB Subsidiaries, (ii) assuming that
the consents and approvals set forth below are duly obtained, violate any
statute, code, ordinance, rule, regulation, judgment, order, writ, decree or
injunction applicable to CSB or its Subsidiaries or any of its properties or
assets, or (iii) except as set forth in the CSB Disclosure Schedule, violate,
conflict with, result in a breach of any provisions of, constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, result in the termination of, accelerate the performance
required by, or result in the creation of any lien, security interest, charge or
other encumbrance upon any of the properties or assets of CSB 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 CSB or any of its Subsidiaries is a party, or
by which CSB or any of its Subsidiaries or any of their properties or assets may
be bound or affected except, with respect to (ii) and (iii) above, such as
individually and in the aggregate will not have a material adverse effect on the
business, operations, assets or financial condition of CSB, or the ability of
CSB to consummate the transactions contemplated hereby. Except for consents and
approvals of or filings or registrations with or notices to the OTS, and
stockholder approval, no consents or approvals of or filings or registrations
with or notices to any public body or authority are necessary on behalf of CSB
in connection with (x) the execution and delivery by CSB of this Agreement and
(y) the consummation by CSB of the transactions contemplated hereby.
3.4. Financial Statements.
(a) The CSB Disclosure Schedule sets forth copies of the
statements of condition of CSB as of December 31, 1997 and 1998, and the related
statements of income, stockholders' equity and cash flows for the periods ended
December 31 in each of the three years 1996 through 1998 (the "CSB Audited
Statements"), in each case accompanied by the audit report of Fontenella &
Babbits, independent public accountants with respect to CSB, and the unaudited
statement of condition as of June 30, 1999 and the related unaudited statement
of income of CSB for the three months ended June 30, 1999, as filed with the OTS
(the "CSB Unaudited Statements" and, collectively with the CSB Audited
Statements, the "CSB Financial Statements"). The CSB Financial Statements
(including the related notes) have been prepared in accordance with generally
accepted accounting principles ("GAAP") consistently applied during the periods
involved. The CSB Financial Statements fairly present the financial condition of
CSB as of the respective dates set forth therein and fairly present the results
of the operations, and with respect to the CSB Audited Statements the changes in
stockholders' equity and cash flows, of CSB for the respective periods set forth
therein.
(b) The books and records of CSB and all of its Subsidiaries
have been and are being maintained in material compliance with applicable legal
and accounting requirements, and reflect only actual transactions.
(c) Except as and to the extent reflected, disclosed or
reserved against in the CSB Audited Statements (including the notes thereto), as
of December 31, 1998 CSB or any of its Subsidiaries did not have any
liabilities, whether absolute, accrued, contingent or otherwise, which are
material to the business, operations, assets or financial condition of CSB and
which are required by GAAP to be disclosed in the CSB Audited Statements. Except
as set forth in the CSB Disclosure Schedule, as and to the extent reflected,
disclosed or reserved against in the CSB Unaudited Statements (including the
notes thereto), as of June 30, 1999 CSB and its Subsidiaries did not have any
liabilities, whether absolute, accrued, contingent or otherwise, which are
material to the business, operations, assets or financial condition of CSB.
Since June 30, 1999 and to the date hereof, CSB and its Subsidiaries has not
incurred any liabilities except in the ordinary course of business and
consistent with prudent banking practice or except as specifically contemplated
by this Agreement.
3.5. Financial Advisor; Broker's and Other Fees. Neither CSB
nor any of its directors or officers has employed any broker or finder or
incurred any finder's fees or commissions in connection with any of the
transactions contemplated by this Agreement. Except as set forth in the CSB
Disclosure Schedule, there are no fees (other than time charges billed at usual
and customary rates) payable to any brokers, finders or consultants in
connection with this transaction or which would be triggered by consummation of
this transaction or the termination of the services of such persons by CSB.
3.6. Absence of Certain Changes or Events. Except as set forth
in the CSB Disclosure Schedule, there has not been any material adverse change
in the business, operations, assets or financial condition of CSB since June 30,
1999 (including without limitation a material adverse change arising from the
institution of Legal Proceedings (as defined in Section 3.7) or the occurrence
of a default as described in Section 3.12(c)), and to CSB's knowledge, no facts
or conditions exist (other than regional or national economic conditions which
affect financial institutions generally) which are reasonably likely to cause
such a material adverse change in the future.
3.7. Legal Proceedings. Except as disclosed in the CSB
Disclosure Schedule, as of the date of this Agreement CSB is not a party to any,
and there are no pending or, to CSB's knowledge, threatened, legal,
administrative, arbitral or other proceedings, claims, actions or governmental
investigations of any nature ("Legal Proceedings") against CSB or against any
present or former CSB officer or director in their capacity as a CSB officer or
director which are material to CSB. Except as disclosed in the CSB Disclosure
Schedule, as of the date of this Agreement CSB is not a party to any material
order, judgment or decree entered against CSB in any lawsuit or proceeding.
3.8. Taxes and Tax Returns.
(a) CSB has duly filed (and until the Effective Time will so
file) all returns, declarations, reports, information returns and statements
("Returns") required to be filed by it in respect of any federal, state and
local taxes (including withholding taxes, penalties or other payments required)
and has duly paid (and until the Effective Time will so pay) all such taxes due
and payable, other than taxes or other charges which are being contested in good
faith. CSB has established (and until the Effective Time will establish) on its
books and records reserves that it reasonably believes are adequate for the
payment of all federal, state and local taxes not yet due and payable, but are
anticipated to be incurred in respect of CSB through the Effective Time. Except
as set forth in the CSB Disclosure Schedule, the federal income tax returns of
CSB have been examined by the Internal Revenue Service (the "IRS") (or are
closed to examination due to the expiration of the applicable statute of
limitations) and no deficiencies were asserted as a result of such examinations
which have not been resolved and paid in full. Except as set forth in the CSB
Disclosure Schedule, the applicable state income tax returns of CSB have been
examined by the applicable authorities (or are closed to examination due to the
expiration of the statute of limitations) and no deficiencies were asserted as a
result of such examinations which have not been resolved and paid in full. To
the knowledge of CSB, there are no audits or other administrative or court
proceedings presently pending, or claims asserted, for taxes or assessments upon
CSB nor has CSB given any currently outstanding waivers or comparable consents
regarding the application of the statute of limitations with respect to any
taxes or tax Returns.
(b) Except as set forth in the CSB Disclosure Schedule, CSB
(i) has not requested any extension of time within which to file any tax Return
which Return has not since been filed, (ii) is not a party to any agreement
providing for the allocation or sharing of taxes, (iii) is not required to
include in income any adjustment pursuant to Section 481(a) of the Internal
Revenue Code of 1986, as amended (the "Code"), by reason of a voluntary change
in accounting method initiated by CSB (nor does CSB have any knowledge that the
IRS has proposed any such adjustment or change of accounting method) and (iv)
has not filed a consent pursuant to Section 341(f) of the Code or agreed to have
Section 341(f)(2) of the Code apply.
3.9. Employee Benefit Plans.
(a) Except as disclosed in the CSB Disclosure Schedule, CSB
does not maintain or contribute to any "employee pension benefit plan", within
the meaning of Section 3(2)(A) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA") (the "CSB Pension Plans"), "employee welfare benefit
plan", within the meaning of Section 3(1) of ERISA (the "CSB Welfare Plans"), or
any stock option plan, stock purchase plan, deferred compensation plan,
severance plan, bonus plan, employment agreement or other similar plan, program
or arrangement. CSB has not, since September 2, 1974, contributed to any
"Multiemployer Plan", within the meaning of Sections 3(37) and 4001(a)(3) of
ERISA. None of the CSB Pension Plans are subject to Title IV of ERISA, nor has
CSB sponsored an CSB Pension Plan that was subject to Title IV of ERISA within
six years from the date hereof.
(b) CSB has delivered to PGFC in the CSB Disclosure Schedule a
complete and accurate copy of each of the following with respect to each of the
CSB Pension Plans and CSB Welfare Plans: (i) plan document, summary plan
description, and summary of material modifications (if not available, a detailed
description of the foregoing); (ii) trust agreement or insurance contract, if
any; (iii) most recent IRS determination letter, if any; (iv) most recent
actuarial report, if any; and (v) most recent annual report on Form 5500.
(c) All contributions required to be made to each CSB Pension
Plan under the terms thereof, ERISA or other applicable law have been timely
made, and all amounts properly accrued to date as liabilities of CSB which have
not been paid have been properly recorded on the books of CSB.
(d) Except as disclosed on the CSB Disclosure Schedule, each
of the CSB Pension Plans, the CSB Welfare Plans and each other plan and
arrangement identified on the CSB Disclosure Schedule has been operated in
compliance in all material respects with the provisions of ERISA, the Code,
regulations, rulings and announcements promulgated or issued thereunder, and
other applicable governmental laws and regulations and CSB is not aware of any
fact or circumstance that would disqualify any such plan. Furthermore, the IRS
has issued a favorable determination letter, which takes into account the Tax
Reform Act of 1986 and subsequent legislation, with respect to each of the CSB
Pension Plans that are intended to satisfy the requirements of Section 401(a)
and/or (k) of the Code.
(e) To the knowledge of CSB, within the past three plan years,
no non-exempt prohibited transaction, within the meaning of Section 4975 of the
Code or Section 406 of ERISA, has occurred with respect to any of the CSB
Welfare Plans or CSB Pension Plans.
(f) Except as set forth on the CSB Disclosure Schedule, no CSB
Pension Plan or any trust created thereunder has been terminated, nor have there
been any "reportable events", within the meaning of Section 4034(b) of ERISA,
with respect to any of the CSB Pension Plans. The most recent IRS determination
letters with respect to any such plans are disclosed on the CSB Disclosure
Schedule.
(g) There are no pending, or, to the knowledge of CSB,
threatened or anticipated claims (other than routine claims for benefits) by, on
behalf of or against any of the CSB Pension Plans or the CSB Welfare Plans, any
trusts related thereto or any other plan or arrangement identified in the CSB
Disclosure Schedule.
(h) No CSB Welfare Plan provides medical or death benefits
beyond an employee's retirement or other termination of service, other than
coverage mandated by law.
(i) Each CSB Welfare Plan that provides health, life and/or
disability benefits is funded exclusively through insurance policies or
contracts.
(j) Except as hereafter agreed to by PGFC in writing or as
disclosed on the CSB Disclosure Schedule, the consummation of the transactions
contemplated by this Agreement will not (i) entitle any current or former
employee of CSB to severance pay, unemployment compensation or any similar
payment, or (ii) accelerate the time of payment, accelerate the vesting, or
increase the amount, of any compensation or benefits due to any current employee
or former employee under any CSB Pension Plan or CSB Welfare Plan.
(l) Except with respect to customary health, life and
disability benefits, there are no unfunded benefit obligations which are not
accounted for by reserves shown on the CSB Financial Statements and established
in accordance with GAAP.
(m) Except for the CSB Pension Plans and the CSB Welfare
Plans, and except as set forth on the CSB Disclosure Schedule, CSB has no
deferred compensation agreements, understandings or obligations for payments or
benefits to any current or former director, officer or employee of CSB or any
CSB Subsidiary or any predecessor of any thereof. The CSB Disclosure Schedule
sets forth: (i) true and complete copies of the agreements, understandings or
obligations with respect to each such current or former director, officer or
employee, and (ii) the most recent actuarial or other calculation of the present
value of such payments or benefits.
(n) Except as set forth in the CSB Disclosure Schedule, CSB
does not maintain or otherwise pay for life insurance policies (other than group
term life policies on employees) with respect to any director, officer or
employee. The CSB Disclosure Schedule lists each such insurance policy and
includes a copy of each agreement with a party other than the insurer with
respect to the payment, funding or assignment of such policy. To the best of CSB
`s knowledge, neither CSB nor any CSB Pension Plan or CSB Welfare Plan owns any
individual or group insurance policies issued by an insurer which has been found
to be insolvent or is in rehabilitation pursuant to a state proceeding.
(o) Except as set forth in the CSB Disclosure Schedule, CSB
does not maintain any retirement plan or retiree medical plan or arrangement for
directors. The CSB Disclosure Schedule sets forth the complete documentation and
actuarial evaluation of any such plan.
3.10. Reports. CSB has, since January 1, 1996, duly filed with
the OTS in correct form all documentation required to be filed under applicable
laws and regulations, and CSB promptly will deliver or make available to PGFC
accurate and complete copies of such documentation. The CSB Disclosure Schedule
lists all examinations of CSB conducted by the OTS since January 1, 1997 and the
dates of any responses thereto submitted by CSB.
3.11. Compliance with Applicable Law. Except as set forth in
the CSB Disclosure Schedule, CSB holds all material licenses, franchises,
permits and authorizations necessary for the lawful conduct of its business, and
has complied with and is not in default in any respect under any, applicable
law, statute, order, rule, regulation, policy and/or guideline of any federal,
state or local governmental authority relating to CSB (other than where such
defaults or non-compliances will not, alone or in the aggregate, result in a
material adverse effect on the business, operations, assets or financial
condition of CSB) and CSB has not received notice of violation of, nor does it
know of any violations (other than violations which will not, alone or in the
aggregate, result in a material adverse effect on the business, operations,
assets or financial condition of CSB) of, any of the above.
3.12. Certain Contracts.
(a) Except for plans referenced in Section 3.9 hereof or
disclosed in the CSB Disclosure Schedule, (i) CSB is not a party to or bound by
any contract or understanding (whether written or, to its knowledge, oral) with
respect to the employment or termination of any present or former officers,
employees, directors or consultants. The CSB Disclosure Schedule sets forth true
and correct copies of all written employment agreements or termination
agreements with officers, employees, directors, or consultants to which CSB is a
party.
(b) Except as disclosed in the CSB Disclosure Schedule, (i) as
of the date of this Agreement, CSB is not a party to or bound by any commitment,
agreement or other instrument (excluding commitments and agreements in
connection with extensions of credit by CSB) which contemplates the payment of
amounts in excess of $100,000, or which otherwise is material to the operations,
assets or financial condition of CSB, (ii) no commitment, agreement or other
instrument to which CSB is a party or by which it is bound limits the freedom of
CSB to compete in any line of business or with any person, and (iii) CSB is not
a party to any collective bargaining agreement.
(c) As of the date of this Agreement, except as disclosed in
the CSB Disclosure Schedule, CSB is not in default in any material respect under
any material lease, contract, mortgage, promissory note, deed of trust, loan
agreement or other commitment or arrangement.
(d) , As of the date of this Agreement, except as disclosed in
the CSB Disclosure Schedule, to the knowledge of CSB, any other party thereto is
not in default in any material respect under any material lease, contract,
mortgage, promissory note, deed of trust, loan agreement or other commitment or
arrangement that is material to CSB.
3.13. Properties and Insurance.
(a) CSB has good and, as to owned real property, if any,
marketable title to all material assets and properties, whether real or
personal, tangible or intangible, reflected in CSB's balance sheet as of
December 31, 1998, or owned and acquired subsequent thereto (except to the
extent that such assets and properties have been disposed of for fair value in
the ordinary course of business since December 31, 1998), subject to no
encumbrances, liens, mortgages, security interests or pledges, except (i) those
items that secure liabilities that are reflected in such balance sheet or the
notes thereto or incurred in the ordinary course of business after the date of
such balance sheet, (ii) statutory liens for amounts not yet delinquent or which
are being contested in good faith, (iii) such encumbrances, liens, mortgages,
security interests, pledges and title imperfections that are not in the
aggregate material to the business, operations, assets, and financial condition
of CSB and (iv) with respect to owned real property, if any, title imperfections
noted in title reports delivered to PGFC prior to the date hereof. CSB, as
lessee, has the right under valid and subsisting leases to occupy, use, possess
and control, in all material respects, all real property leased by it, as
presently occupied, used, possessed and controlled by it.
(b) The CSB Disclosure Schedule lists all policies of
insurance and bonds covering business operations and insurable properties and
assets of CSB, all risks insured against, and the amount thereof and deductibles
relating thereto. Except as set forth in the CSB Disclosure Schedule, as of the
date hereof, CSB has not, since January 1, 1996, received any notice of
cancellation or notice of a material amendment of any such insurance policy or
bond and it is not in default in any material respect under such policy or bond,
and, to CSB's knowledge, no coverage thereunder is being disputed and all
material claims thereunder have been filed in a timely fashion.
3.14. Minute Books. The minute books of CSB contain records
which, in all material respects, accurately record all meetings and other
corporate action of its shareholders and Board of Directors (including
committees of its Board of Directors).
3.15. Environmental Matters. Except as disclosed in the CSB
Disclosure Schedule:
(a) CSB has not received any written notice, citation, claim,
assessment, proposed assessment or demand for abatement alleging that CSB
(either directly or as a trustee or fiduciary, or as a successor-in-interest in
connection with the enforcement of remedies to realize the value of properties
serving as collateral for outstanding loans) is responsible for the correction
or cleanup of any condition resulting from the violation of any law, ordinance
or other governmental regulation regarding environmental matters, which
correction or cleanup would be material to the business, operations, assets or
financial condition of CSB. CSB has no knowledge that any toxic or hazardous
substances or materials have been emitted, generated, disposed of or stored on
any real property owned or leased by CSB, as OREO or otherwise, or owned or
controlled by CSB as a trustee or fiduciary (collectively, "Properties"), in any
manner that violates or, after the lapse of time may violate, any presently
existing federal, state or local law or regulation governing or pertaining to
such substances and materials, the violation of which would have a material
adverse effect on the business, operations, assets or financial condition of
CSB.
(b) CSB has no knowledge that any of the Properties has been
operated in any manner in the ten years prior to the date of this Agreement that
violated any applicable federal, state or local law or regulation governing or
pertaining to toxic or hazardous substances and materials, the violation of
which would have a material adverse effect on the business, operations, assets
or financial condition of CSB.
(c) To the knowledge of CSB, there are no underground storage
tanks on, in or under any of the Properties and no underground storage tanks
have been closed or removed from any of the Properties while the property was
owned, operated or controlled by CSB.
3.16. Reserves. To the knowledge of CSB, the allowance for
possible loan and lease losses in the June 30, 1999 CSB Financial Statements was
adequate at the time based upon past loan loss experiences and potential losses
in the portfolio at the time to cover all known or reasonably anticipated loan
losses.
3.17. Year 2000 Compliance. CSB has taken all reasonable steps
necessary to address the software, accounting and record keeping issues raised
in order for the data processing systems used in the business conducted by CSB
to be Year 2000 ready in accordance with applicable regulatory guidelines,
except as set forth in the CSB Disclosure Schedule. CSB does not expect the
future cost of addressing such issues to be material.
3.18. Agreements with Bank Regulators. Except as disclosed in
the CSB Disclosure Schedule, CSB is not a party to any agreement or memorandum
of understanding with, or a party to any commitment letter, board resolution
submitted to a regulatory authority or similar undertaking to, and is not
subject to any order or directive by, and is not a recipient of any
extraordinary supervisory letter from, any court, governmental authority or
other regulatory or administrative agency or commission, domestic or foreign
("Governmental Entity") which restricts materially the conduct of its business,
or in any manner relates to its capital adequacy, its credit or reserve policies
or its management, except for those the existence of which has been disclosed in
writing to PGFC by CSB prior to the date of this Agreement, nor has CSB been
advised by any Governmental Entity that it is contemplating issuing or
requesting (or is considering the appropriateness of issuing or requesting) any
such order, decree, agreement, memorandum of understanding, extraordinary
supervisory letter, commitment letter or similar submission, except as disclosed
in writing to PGFC by CSB prior to the date of this Agreement.
3.19. Disclosure. No representation or warranty contained in
Article III of this Agreement contains any untrue statement of a material fact
or omits to state a material fact necessary to make the statements herein not
misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PGB AND PGFC
References herein to the "PGFC Disclosure Schedule" shall mean
all of the disclosure schedules required by this Agreement, dated as of the date
hereof and referenced to the specific sections and subsections of this
Agreement, which have been delivered on the date hereof by PGFC and PGB to CSB.
PGFC and PGB hereby represent and warrant to CSB and Weichert as follows:
4.1. Corporate Organization.
(a) PGFC is a corporation duly organized and validly existing
and in good standing under the laws of the State of New Jersey. PGFC has the
corporate power and authority to own or lease all of its properties and assets
and to carry on its business as it is now being conducted, and is duly licensed
or qualified to do business and is in good standing in each jurisdiction in
which the nature of the business conducted by it or the character or location of
the properties and assets owned or leased by it makes such licensing or
qualification necessary, except where the failure to be so licensed, qualified
or in good standing would not have a material adverse effect on the business,
operations, assets or financial condition of PGFC or any of its Subsidiaries
(defined below). PGFC is registered as a bank holding company under the Bank
Holding Company Act of 1956, as amended (the "BHCA"). The PGFC Disclosure
Schedule sets forth true and complete copies of the Governing Documents of PGFC.
(b) Each of the Subsidiaries of PGFC are listed in the PGFC
Disclosure Schedule. The term "Subsidiary" when used in this Agreement with
reference to PGFC means any corporation, joint venture, association,
partnership, trust or other entity in which PGFC has, directly or indirectly, at
least a 50 percent interest or acts as a general partner. Each Subsidiary of
PGFC is duly organized and validly existing and in good standing under the laws
of the jurisdiction of its incorporation. PGB is a New Jersey chartered
commercial bank whose deposits are insured to the fullest extent permitted by
law by the Bank Insurance Fund ("BIF") of the FDIC. Each Subsidiary of PGFC has
the corporate power and authority to own or lease all of its properties and
assets and to carry on its business as it is now being conducted and is duly
licensed or qualified to do business and is in good standing in each
jurisdiction in which the nature of the business conducted by it or the
character or location of the properties and assets owned or leased by it makes
such licensing or qualification necessary, except where the failure to be so
licensed, qualified or in good standing would not have a material adverse effect
on the business, operations, assets or financial condition of PGFC or any of its
Subsidiaries. The PGFC Disclosure Schedule sets forth true and complete copies
of the Governing Documents of PGB as in effect on the date hereof.
4.2. Capitalization. The authorized capital stock of PGFC
consists of 10,000,000 shares of PGFC Common Stock and no shares of preferred
stock. As of June 30, 1999, there were 2,451,444 shares of PGFC Common Stock
issued and outstanding, including 11,063 treasury shares. Since June 30, 1999,
to and including the date of this Agreement, no additional shares of PGFC Common
Stock have been issued, except in connection with the exercise of options
granted under the PGFC 1995 Stock Option Plan, the PGFC 1995 Stock Option Plan
for Outside Directors, the PGFC 1998 Stock Option Plan or the PGFC 1998 Stock
Option Plan for Outside Directors (together, the "PGFC Option Plans"). As of
June 30, 1999, except for 107,870 shares of PGFC Common Stock issuable upon
exercise of outstanding stock options granted pursuant to the PGFC Option Plans,
there were no shares of PGFC Common Stock issuable upon the exercise of
outstanding stock options or otherwise. All issued and outstanding shares of
PGFC Common Stock, and all issued and outstanding shares of capital stock of
PGFC's Subsidiaries, have been duly authorized and validly issued, are fully
paid, nonassessable and free of preemptive rights, and are free and clear of all
liens, encumbrances, charges, restrictions or rights of third parties. All of
the outstanding shares of capital stock of PGFC's Subsidiaries are owned by PGFC
free and clear of any liens, encumbrances, charges, restrictions or rights of
third parties. Except for the options referred to above under the PGFC Option
Plans, neither PGFC nor any of PGFC's Subsidiaries has or is bound by any
outstanding subscriptions, options, warrants, calls, commitments or agreements
of any character calling for the transfer, purchase or issuance of any shares of
capital stock of PGFC or PGFC's Subsidiaries or any securities representing the
right to otherwise receive any shares of such capital stock or any securities
convertible into or representing the right to purchase or subscribe for any such
shares, and there are no agreements or understandings with respect to voting of
any such shares. No additional grants of awards, or exercises of outstanding
awards, under either of the PGFC Option Plans, or repurchases of PGFC Common
Stock, prior to the Effective Time shall be required to be disclosed or reported
to CSB to keep the representations in this section true or correct.
4.3. Authority; No Violation.
(a) PGFC and PGB have full corporate power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby in accordance with the terms hereof. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby have been duly and validly approved by the Boards of Directors of PGFC
and PGB. No other corporate proceedings on the part of PGFC and PGB are
necessary to consummate the transactions contemplated hereby. This Agreement has
been duly and validly executed and delivered by PGFC and PGB and constitutes a
valid and binding obligation of PGFC and PGB, enforceable against PGFC and PGB
in accordance with its terms, except to the extent that enforcement may be
limited by (i) bankruptcy, insolvency, reorganization, moratorium,
conservatorship, receivership or other similar laws now or hereafter in effect
relating to or affecting the enforcement of creditors' rights generally or the
rights of national banks or their holding companies, (ii) general equitable
principles, and (iii) laws relating to the safety and soundness of insured
depository institutions and except that no representation is made as to the
effect or availability of equitable remedies or injunctive relief.
(b) Neither the execution or delivery of this Agreement nor
the consummation by PGFC and PGB of the transactions contemplated hereby in
accordance with the terms hereof or compliance by PGFC or PGB with any of the
terms or provisions hereof, will (i) violate any provision of the Governing
Documents of PGFC or PGB, (ii) assuming that the consents and approvals set
forth below are duly obtained, violate any statute, code, ordinance, rule,
regulation, judgment, order, writ, decree or injunction applicable to PGFC or
PGB or any of their respective properties or assets, or (iii) violate, conflict
with, result in a breach of any provision of, constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default) under,
result in the termination of, accelerate the performance required by, or result
in the creation of any lien, security interest, charge or other encumbrance upon
any of the properties or assets of PGFC or PGB 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 PGFC or PGB
is a party, or by which PGFC or PGB or any of their properties or assets may be
bound or affected, except, with respect to (ii) and (iii) above, such as
individually and in the aggregate will not have a material adverse effect on the
business, operations, assets or financial condition of PGFC and PGFC's
Subsidiaries on a consolidated basis, or the ability of PGFC and PGB to
consummate the transactions contemplated hereby. No consents or approvals of or
filings or registrations with or notices to any third party or any public body
or authority are necessary on behalf of PGFC or PGB in connection with (a) the
execution and delivery by PGFC or PGB of this Agreement and (b) the consummation
by PGFC of the Merger and the other transactions contemplated hereby, except
that filings with and the consent of the FRB, the FDIC and the New Jersey
Department of Banking and Insurance (the "NJDOBI") and notice to the OTS are
required prior to consummation of the Merger, and the Registration Rights
Agreement describes certain consents, approvals, filings, registrations and
notices which may be required in order to consummate the registration of shares
contemplated thereby. To PGFC's knowledge, no fact or condition exists which
PGFC has reason to believe will prevent it or PGB from obtaining the
aforementioned consents and approvals within the time frame contemplated hereby.
4.4. Financial Statements.
(a) PGFC has previously delivered to CSB copies of the
consolidated statements of condition of PGFC as of December 31, 1998 and 1997,
and the related consolidated statements of income, changes in stockholders'
equity and cash flows for the each of the years in the three-year period ended
December 31 1998, in each case accompanied by the audit report of KPMG LLP, the
current independent public accountants with respect to PGFC, and the unaudited
consolidated statements of condition of PGFC as of June 30, 1999, and the
related unaudited consolidated statements of income, changes in stockholders'
equity and cash flows for the three months and six months then ended as reported
in PGFC's Quarterly Report on Form 10-Q, filed with the Securities and Exchange
Commission (the "SEC") under the Securities Exchange Act of 1934, as amended
(the "1934 Act") (collectively, the "PGFC Financial Statements"). The PGFC
Financial Statements (including the related notes), have been prepared in
accordance with GAAP consistently applied during the periods involved and fairly
present the consolidated financial position of PGFC and its consolidated
subsidiaries as of the respective dates set forth therein, and the related
consolidated statements of income, changes in stockholders' equity and cash
flows (including the related notes, where applicable) fairly present the results
of the consolidated operations, changes in stockholders' equity and cash flows
of PGFC and its consolidated subsidiaries for the respective fiscal periods set
forth therein.
(b) The books and records of PGFC have been and are being
maintained in material compliance with applicable legal and accounting
requirements, and reflect only actual transactions.
(c) Except as and to the extent reflected, disclosed or
reserved against in the PGFC Financial Statements (including the notes thereto),
as of June 30, 1999 neither PGFC nor any of its Subsidiaries had or has, as the
case may be, any obligation or liability, whether absolute, accrued, contingent
or otherwise, which is material to the business, operations, assets or financial
condition of PGFC or any of its Subsidiaries and which are required by GAAP to
be disclosed in the PGFC Financial Statements. Since June 30, 1999, neither PGFC
nor any of its Subsidiaries have incurred any liabilities, except in the
ordinary course of business and consistent with prudent banking practice.
4.5. Brokerage and Other Fees. Except as set forth in the PGFC
Disclosure Schedule, neither PGFC nor PGB nor any of their respective directors
or officers has employed any broker or finder or incurred any liability for any
broker's or finder's fees or commissions in connection with any of the
transactions contemplated by this Agreement.
4.6. Absence of Certain Changes or Events. There has not been
any material adverse change in the business, operations, assets or financial
condition of PGFC and PGFC's Subsidiaries on a consolidated basis since June 30,
1999 (including, without limitation, a material adverse change arising from
institution of Legal Proceedings or the occurrence of a default as described in
Section 3.12(c) of this Agreement) and, to PGFC's knowledge, no facts or
conditions exist (other than regional or national economic conditions which
affect financial institutions generally) which are reasonably likely to cause
such a material adverse change in the future.
4.7. Capital Adequacy. At the Effective Time, after taking
into effect the Merger and the transactions contemplated hereunder, PGFC will
have sufficient capital to satisfy all applicable regulatory capital
requirements.
4.8. PGFC Common Stock. At the Effective Time, the PGFC Common
Stock to be issued pursuant to the terms of Section 2.1, when so issued, shall
be duly authorized, validly issued, fully paid, and non-assessable, free of
preemptive rights and free and clear of all liens, encumbrances or restrictions
and the rights of third parties created by or through PGFC, with no personal
liability attaching to the ownership thereof, other than those restrictions
contemplated by this Agreement.
4.9. Legal Proceedings. Except as disclosed in the PGFC
Disclosure Schedule, neither PGFC nor any of its Subsidiaries is a party to any,
and there are no pending or, to PGFC's knowledge, threatened, Legal Proceedings
against PGFC or any of its Subsidiaries which, if decided adversely to PGFC, or
any of its Subsidiaries, would have a material adverse effect on the business,
operations, assets or financial condition of PGFC and its Subsidiaries on a
consolidated basis. Except as disclosed in the PGFC Disclosure Schedule, neither
PGFC nor any of PGFC's Subsidiaries is a party to any order, judgment or decree
entered against PGFC or any such Subsidiary in any lawsuit or proceeding which
would have a material adverse affect on the business, operations, assets or
financial condition of PGFC and its Subsidiaries on a consolidated basis.
4.10. Taxes and Tax Returns. PGFC and each of its Subsidiaries
has duly filed (and until the Effective Time will so file) all Returns required
to be filed by it in respect of any federal, state and local taxes (including
withholding taxes, penalties or other payments required) and has duly paid (and
until the Effective Time will so pay) all such taxes due and payable, other than
taxes or other charges which are being contested in good faith. PGFC and each of
its Subsidiaries have established (and until the Effective Time will establish)
on its books and records reserves that it reasonably believes are adequate for
the payment of all federal, state and local taxes not yet due and payable, but
anticipated to be incurred in respect of PGFC and its Subsidiaries through the
Effective Time. No deficiencies exist or have been asserted based upon the
federal income tax returns of PGFC and PGB. To the knowledge of PGFC, there are
no audits or other administrative or court proceedings pending, or claims
asserted, for taxes or assessments upon PGFC or any of its Subsidiaries.
4.11. Employee Benefit Plans.
(a) PGFC and its Subsidiaries maintain or contribute to
certain "employee pension benefit plans" (the "PGFC Pension Plans"), as such
term is defined in Section 3 of ERISA, and "employee welfare benefit plans" (the
"PGFC Welfare Plans"), as such term is defined in Section 3 of ERISA. Since
September 2, 1974, neither PGFC nor its Subsidiaries have contributed to any
"Multiemployer Plan", as such term is defined in Section 3(37) of ERISA.
(b) Each of the PGFC Pension Plans and each of the PGFC
Welfare Plans has been operated in compliance in all material respects with the
provisions of ERISA, the Code, all regulations, rulings and announcements
promulgated or issued thereunder, and all other applicable governmental laws and
regulations.
4.12. Reports.
(a) Since its formation in 1997, PGFC has filed all reports
that it was required to file with the SEC under the 1934 Act, all of which
complied in all material respects with all applicable requirements of the 1934
Act and the rules and regulations adopted thereunder. As of their respective
dates, each such report, and each registration statement, proxy statement, form
or other document filed by PGFC with the SEC, including without limitation any
financial statements or schedules included therein, did not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements made therein, in
light of the circumstances under which they were made, not misleading; provided
that disclosures as of a later date shall be deemed to modify disclosures as of
an earlier date.
(b) Since the formation of PGFC in 1997, PGFC and PGB have
duly filed with the SEC and the FRB in correct form the monthly, quarterly and
annual reports required to be filed under applicable laws and regulations, and
PGFC, upon request, promptly will deliver or make available to CSB accurate and
complete copies of such reports. Since January 1, 1997, PGB has duly filed with
the Commissioner (the "Commissioner") of the NJDOBI and the FDIC in correct form
the monthly, quarterly and annual reports required to be filed under applicable
laws and regulations, and PGFC, upon request, promptly will deliver or make
available to CSB accurate and complete copies of such reports.
4.13. Compliance with Applicable Law. PGFC and its
Subsidiaries hold all material licenses, franchises, permits and authorizations
necessary for the lawful conduct of their respective businesses under and
pursuant to each, and has complied with and is not in default in any respect
under any, applicable law, statute, order, rule, regulation, policy and/or
guideline of any federal, state or local governmental authority relating to PGFC
and its Subsidiaries (other than where such default or non-compliance will not
result in a material adverse effect on the business, operations, assets or
financial condition of PGFC and its Subsidiaries on a consolidated basis), and
neither PGFC nor any of its Subsidiaries has received notice of violation of,
nor does it know of any violations (other than violations which will not, alone
or in the aggregate, result in a material adverse effect on the business
operations, assets or financial condition of PGFC and its Subsidiaries on a
consolidated basis) of, any of the above.
4.14. Properties and Insurance.
(a) PGFC and its Subsidiaries have good and, as to owned real
property, marketable title to all material assets and properties, whether real
or personal, tangible or intangible, reflected in PGFC's consolidated balance
sheet as of December 31, 1998, or owned and acquired subsequent thereto (except
to the extent that such assets and properties have been disposed of for fair
value in the ordinary course of business since December 31, 1998). PGFC and its
Subsidiaries as lessees have the right under valid and subsisting leases to
occupy, use, possess and control in all material respects, all real property
leased by them as presently occupied, used, possessed and controlled by them.
(b) The business operations and all insurable properties and
assets of PGFC and its Subsidiaries are insured for their benefit against all
risks which, in the reasonable judgment of the management of PGFC should be
insured against, with such deductibles and against such risks and losses as are
in the opinion of the management of PGFC adequate for the business engaged in by
PGFC and its Subsidiaries. As of the date hereof, PGFC has not received any
notice of cancellation of or material amendment to any such insurance policy or
bond and is not in default in any material respect under any such policy or
bond, and, to its knowledge, no coverage thereunder is being disputed and all
material claims thereunder have been filed in a timely fashion.
4.15. Minute Books. The minute books of PGFC and its
Subsidiaries contain accurate records of all meetings and other corporate action
held of their respective stockholders and Boards of Directors (including
committees of their respective Boards of Directors).
4.16. Environmental Matters.
(a) Except as disclosed in the PGFC Disclosure Schedule,
neither PGFC nor any of its Subsidiaries has received any written notice,
citation, claim, assessment, proposed assessment or demand for abatement
alleging that PGFC or any of its Subsidiaries (either directly or as a
successor-in-interest in connection with the enforcement of remedies to realize
the value of properties serving as collateral for outstanding loans) is
responsible for the correction or clean-up of any condition material to the
business, operations, assets or financial condition of PGFC or its Subsidiaries.
Except as disclosed in the PGFC Disclosure Schedule, PGFC has no knowledge that
any toxic or hazardous substances or materials have been emitted, generated,
disposed of or stored on any property owned or leased by PGFC or any of its
Subsidiaries, as OREO or otherwise, or owned or controlled by PGFC or PGB as
trustee or fiduciary ("PGFC Properties") in any manner that violates or, after
the lapse of time may violate, any presently existing federal, state or local
law or regulation governing or pertaining to such substances and materials, the
violation of which would have a material adverse effect on the business,
operations, assets or financial condition of PGFC and its Subsidiaries on a
consolidated basis.
(b) PGFC has no knowledge that any of the PGFC Properties has
been operated in any manner in the three years prior to the date of this
Agreement that violated any applicable federal, state or local law or regulation
governing or pertaining to toxic or hazardous substances and materials, the
violation of which would have a material adverse effect of the business,
operations, assets or financial condition of PGFC.
4.17. Reserves. To the knowledge of PGFC, the allowance for
possible loan and lease losses in the June 30, 1999 PGFC Financial Statements
was adequate based at the time upon past loan loss experiences and potential
losses in the portfolio at the time to cover all known or reasonably anticipated
loan losses.
4.18. Year 2000 Compliance. PGFC and the PGFC Subsidiaries
have taken all reasonable steps necessary to address the software, accounting
and record keeping issues raised in order for the data processing systems used
in the business conducted by PGFC and the PGFC Subsidiaries to be Year 2000
compliant in accordance with applicable regulatory guidelines and PGFC does not
expect the future cost of addressing such issues to be material. Neither PGFC
nor any PGFC Subsidiary has received a rating of less than satisfactory from any
bank regulatory agency with respect to Year 2000 compliance.
4.19 Agreements with Bank Regulators. Except as disclosed in
the PGFC Disclosure Schedule, neither PGFC nor any PGFC Subsidiary is a party to
any agreement or memorandum of understanding with, or a party to any commitment
letter, board resolution submitted to a regulatory authority or similar
undertaking to, or is subject to any order or directive by, or is a recipient of
any extraordinary supervisory letter from, any Governmental Entity which
restricts materially the conduct of its business, or in any manner relates to
its capital adequacy, its credit or reserve policies or its management, except
for those the existence of which has been disclosed in writing to CSB by PGFC
prior to the date of this Agreement, nor has PGFC or PGB been advised by any
Governmental Entity that it is contemplating issuing or requesting (or is
considering the appropriateness of issuing or requesting) any such order,
decree, agreement, memorandum of understanding, extraordinary supervisory
letter, commitment letter or similar submission, except as disclosed in writing
to CSB by PGFC prior to the date of this Agreement. Neither PGFC nor any PGFC
Subsidiary is required by Section 32 of the Federal Deposit Insurance Act to
give prior notice to a Federal banking agency of the proposed addition of an
individual to its board of directors or the employment of an individual as a
senior executive officer, except as disclosed in writing to CSB by PGFC prior to
the date of this Agreement.
4.20. Disclosures. There are no material facts concerning the
business, operations, assets or financial condition of PGFC which would have a
material adverse effect on the business, operations or financial condition of
PGFC which have not been disclosed to CSB directly or indirectly by access to
any filing by PGFC under the 1934 Act. No representation or warranty contained
in Article IV of this Agreement contains any untrue statement of a material fact
or omits to state a material fact necessary to make the statements herein not
misleading.
ARTICLE V
COVENANTS OF THE PARTIES
5.1. Conduct of the Business of CSB. During the period from
the date of this Agreement to the Effective Time, CSB shall conduct its business
and engage in transactions permitted hereunder only in the ordinary course and
consistent with prudent banking practice, except with the prior written consent
of PGFC, which consent will not be unreasonably withheld. CSB also shall use all
reasonable efforts to (i) preserve its business organization intact, (ii) keep
available to itself the present services of its employees and (iii) preserve for
itself and PGFC the goodwill of its customers and others with whom business
relationships exist, in each case provided that CSB shall not be required to
take any unreasonable or extraordinary act or any action which would conflict
with any other term of this Agreement.
5.2. Negative Covenants and Dividend Covenants. CSB agrees
that from the date hereof to the Effective Time, except as otherwise approved by
PGFC in writing, or as permitted or required by this Agreement or as contained
in the CSB Disclosure Schedule, it will not:
(a) change any provision of its Governing Documents;
(b) change the number of shares of its authorized capital
stock or issue any shares of CSB Common Stock or other capital stock or issue or
grant any option, warrant, call, commitment, subscription, right to purchase or
agreement of any character relating to the authorized or issued capital stock of
CSB or any securities convertible into shares of such stock, or split, combine
or reclassify any shares of its capital stock, or declare, set aside or pay any
dividend, or other distribution (whether in cash, stock or property or any
combination thereof) in respect of its capital stock, or redeem or otherwise
acquire any shares of such capital stock;
(c) other than as set forth on Schedule 5.23, grant any
severance or termination pay (other than pursuant to policies of CSB in effect
on the date hereof and disclosed to PGFC in the CSB Disclosure Schedule) to, or
enter into or amend any employment agreement with, any of its directors,
officers or employees; adopt any new employee benefit plan or arrangement of any
type or amend any such existing benefit plan or arrangement; or award any
increase in compensation or benefits to its directors, officers or employees
except with respect to salary increases and bonuses for employees in the
ordinary course of business and consistent with past practices and policies;
(d) sell or dispose of any substantial amount of assets or
incur any significant liabilities other than in the ordinary course of business
consistent with past practices and policies;
(e) make any capital expenditures outside of the ordinary
course of business other than pursuant to binding commitments existing on the
date hereof and other than expenditures necessary to maintain existing assets in
good repair;
(f) make any capital expenditures in excess of $10,000,
excluding those capital expenditures permitted by subsection (e) ;
(g) file any applications or make any contract with respect to
branching or site location or relocation;
(h) agree to acquire in any manner whatsoever (other than to
realize upon collateral for a defaulted loan) any business or entity;
(i) make any material change in its accounting methods or
practices, other than changes required in accordance with generally accepted
accounting principles; or
(j) agree to do any of the foregoing.
5.3. No Solicitation. CSB and Weichert shall not, directly or
indirectly, encourage or solicit or hold discussions or negotiations with, or
provide any information to, any person, entity or group (other than PGFC)
concerning any merger or sale of shares of capital stock or sale of substantial
assets or liabilities not in the ordinary course of business, or similar
transactions involving CSB (an "Acquisition Transaction"). Following
consultation with CSB's counsel, CSB will promptly communicate to PGFC the terms
of any proposal, whether written or oral, which is communicated to any member of
the Board of Directors or any executive officer of CSB or to Weichert or his
agent in respect of any Acquisition Transaction; providing, however, that
Weichert need not inform PGFC of any oral proposal communicated to him
informally if his sole response is to merely state that the transaction with
PGFC is final and he will not entertain other offers.
5.4. Current Information. During the period from the date of
this Agreement to the Effective Time, CSB will, at the request of PGFC, cause
one or more of its designated representatives to confer on a monthly or more
frequent basis with representatives of PGFC regarding CSB's business,
operations, properties, assets and financial condition and matters relating to
the completion of the transactions contemplated herein. Without limiting the
foregoing, promptly after granting any new loan or extension of credit, or any
renewal of an existing loan or extension of credit, in excess of $150,000, CSB
will send to PGFC a description thereof, and thereafter CSB will promptly send
to PGFC copies of such documents relating thereto as PGFC shall reasonably
request. As soon as reasonably available, but in no event more than 45 days
after the end of each fiscal quarter (other than the last fiscal quarter of each
fiscal year) ending after the date of this Agreement, CSB will deliver to PGFC
any financial documentation filed with the OTS and PGFC will deliver to CSB
PGFC's quarterly reports on Form 10-Q, as filed with the SEC under the 1934 Act.
5.5. Access to Properties and Records; Confidentiality.
(a) CSB shall permit PGFC and its agents and representatives,
including, without limitation, officers, directors, employees, attorneys,
accountants and financial advisors (collectively, "Representatives"), and PGFC
and PGB shall permit CSB and its Representatives, reasonable access to their
respective properties, and shall disclose and make available to PGFC and its
Representatives or CSB and its Representatives, as the case may be, all books,
papers and records relating to their respective assets, stock ownership,
properties, operations, obligations and liabilities, including, but not limited
to, all books of account (including the general ledger), tax records, minute
books of directors' and stockholders' meetings, organizational documents,
bylaws, material contracts and agreements, filings with any regulatory
authority, independent auditors' work papers (subject to the receipt by such
auditors of a standard access representation letter), litigation files, plans
affecting employees, and any other business activities or prospects in which
PGFC and its representatives or CSB and its representatives may have a
reasonable interest. Neither party shall be required to provide access to or to
disclose information where such access or disclosure would violate or prejudice
the rights of any customer or would contravene any law, rule, regulation, order
or judgment or, in the case of a document which is subject to an attorney-client
privilege, would compromise the right of the disclosing party to claim that
privilege. The parties will use all reasonable efforts to obtain waivers of any
such restriction (other than the attorney client privilege) and in any event
make appropriate substitute disclosure arrangements under circumstances in which
the restrictions of the preceding sentence apply. CSB acknowledges that PGFC may
be involved in discussions concerning other potential acquisitions and PGFC
shall not be obligated to disclose such information to CSB except as such
information is publicly disclosed by PGFC.
(b) All information furnished by the parties hereto previously
in connection with transactions contemplated by this Agreement or pursuant
hereto shall be used solely for the purpose of evaluating the Merger
contemplated hereby, shall be kept confidential and shall be treated as the sole
property of the party delivering the information until consummation of the
Merger contemplated hereby and, if such Merger shall not occur, each party and
each party's Representatives shall return to the other party all documents or
other materials containing, reflecting or referring to such information, will
not retain any copies of such information, shall keep confidential all such
information, and shall not directly or indirectly use such information for any
competitive or commercial purposes or any other purpose not expressing permitted
hereby. Each party hereto shall inform its Representatives of the terms of this
Section 5.5. Any breach of this Section 5.5 by a Representative of a party
hereto shall conclusively be deemed to be a breach thereof by such party. In the
event that the Merger contemplated hereby does not occur or this Agreement is
terminated, all documents, notes and other writings prepared by a party hereto
or its Representatives based on information furnished by the other party, and
all other documents and records obtained from another party hereto in connection
herewith, shall be promptly destroyed. The obligation to keep such information
confidential shall continue for 30 months from the date the proposed Merger is
abandoned but shall not apply to (i) any information which (A) the party
receiving the information can establish by convincing evidence was already in
its possession prior to the disclosure thereof to it by the other party; (B) was
then generally known to the public other than as a result of a disclosure by any
party hereto or its Representative; (C) became known to the public through no
fault of the party receiving such information; or (D) was disclosed to the party
receiving such information by a third party not bound by an obligation of
confidentiality; or (ii) disclosures pursuant to a legal, regulatory or
examination requirement or in accordance with an order of a court of competent
jurisdiction, provided that in the event of any disclosure required by this
clause (ii), the disclosing party will give reasonable prior written notice of
such disclosure to the other parties and shall not disclose any such information
without an opinion of counsel supporting its position that such information must
be disclosed.
(c) In addition to all other remedies that may be available to
any party hereto in connection with a breach by any other party hereto of its or
its Representative's obligations under this Section 5.5, each party hereto shall
be entitled to specific performance and injunctive and other equitable relief
with respect to this Section 5.5. Each party hereto waives, and agrees to use
all reasonable efforts to cause its Representatives to waive, any requirement to
secure or post a bond in connection with any such relief.
5.6. Regulatory Matters.
(a) The parties hereto will cooperate with each other and use
all reasonable efforts to prepare all necessary documentation, to effect all
necessary filings and to obtain all necessary permits, consents, approvals and
authorizations of all third parties and governmental bodies necessary to
consummate the transactions contemplated by this Agreement as soon as possible,
including, without limitation, those required by the FRB, the OTS and the
NJDOBI. The parties shall each have the right to review in advance and comment
on all information relating to the other, as the case may be, which appears in
any filing made with, or written material submitted to, any third party or
governmental body in connection with the transactions contemplated by this
Agreement. PGFC and PGB shall cause their application to the FRB to be filed (i)
within 45 days of the date hereof, so long as CSB provides all information
necessary to complete the application within 30 days of the date hereof, or (ii)
within 15 days after all such information is provided, if CSB does not provide
all such information within such 30 day period. PGFC shall provide to CSB drafts
of all filings and applications referred to in this Section 5.6(a) and shall
give CSB the opportunity to comment thereon prior to their filing.
(b) Each of the parties will promptly furnish each other with
copies of written communications received by them or any of their respective
Subsidiaries from, or delivered by any of the foregoing to, any governmental
body in respect of the transactions contemplated hereby.
(c) Between the date of this Agreement and the Effective Time,
CSB shall cooperate with PGFC to reasonably conform (as of the Effective Time)
CSB's policies and procedures, to those of PGFC as PGFC may reasonably identify
to CSB from time to time.
(d) Between the date of this Agreement and the Effective Time,
Weichert agrees to file any and all notices, if any, required by the Change in
Bank Control Act and the regulations promulgated thereunder and to promptly
respond to any inquiries from the FRB concerning the same. Weichert further
agrees to make such filings in a timely fashion so that any required waiting
periods will have lapsed on or before December 1, 1999, and before the Effective
Time. Weichert shall provide PGFC copies of all such filings, but need not
provide copies of any personal financial information required by such filings.
5.7. Approval of the Sole Shareholder. Weichert, in his
capacity as sole shareholder of CSB simultaneously with the execution of this
Agreement, shall execute a unanimous written consent of the sole shareholder of
CSB approving this Agreement, in the form set forth in Schedule 5.7.
5.8. Further Assurances. Subject to the terms and conditions
herein provided, each of the parties hereto agrees to use all reasonable efforts
to take, or cause to be taken, all actions and to do, or cause to be done, all
things reasonably necessary, proper or advisable under applicable laws and
regulations to satisfy the conditions to Closing and to consummate and make
effective the transactions contemplated by this Agreement, including, without
limitation, using reasonable efforts to lift or rescind any injunction or
restraining order or other order adversely affecting the ability of the parties
to consummate the transactions contemplated by this Agreement and using all
reasonable efforts to prevent the breach of any representation, warranty,
covenant or agreement of such party contained or referred to in this Agreement
and to promptly remedy the same. Nothing in this section shall be construed to
require any party to participate in any threatened or actual Legal Proceedings
(other than Legal Proceedings to which it is otherwise a party or subject or
threatened to be made a party or subject) in connection with consummation of the
transactions contemplated by this Agreement unless such party shall consent in
advance and in writing to such participation and the other party agrees to
reimburse and indemnify such party for and against any and all costs and damages
related thereto.
5.9. Public Announcements. The parties hereto shall cooperate
with each other in the development and distribution of all news releases and
other public disclosures with respect to this Agreement or any of the
transactions contemplated hereby, except as may be otherwise required by law or
regulation or as to which the party releasing such information has used all
reasonable efforts to discuss with the other party in advance; provided,
however, notwithstanding any other provision of this Agreement to the contrary,
in no event shall any such news release or other public disclosure contain any
reference to, or mention of, Mr. Weichert, but PGFC may file this Agreement as
an Exhibit to a Form 8-K filing and Weichert acknowledges that he must file a
Form 13D or G.
5.10. Failure to Fulfill Conditions. PGFC shall use its best
efforts to cause the Closing to occur on or before January 5, 2000. In the event
that PGFC or CSB reasonably determines that a material condition to its
obligation to consummate the transactions contemplated hereby cannot be
fulfilled on or prior to February 15, 2000 (the "Cutoff Date"), and that it will
not waive that condition, it will promptly notify the other party. CSB and PGFC
will promptly inform the other of any facts applicable to CSB or PGFC,
respectively, or their respective directors, officers or Subsidiaries, that
would be likely to prevent or materially delay approval of the Merger by any
governmental authority or which would otherwise prevent or materially delay
completion of the Merger.
5.11. Disclosure Supplements. Each party hereto will promptly
supplement or amend (by written notice to the other) its respective Disclosure
Schedules delivered pursuant hereto with respect to any matter hereafter arising
which, if existing, occurring or known at the date of this Agreement, would have
been required to be set forth or described in such Schedules or which is
necessary to correct any information in such Schedules which has been rendered
materially inaccurate thereby. For the purpose of determining satisfaction of
the conditions set forth in Article VI, no supplement or amendment to such
Schedules shall correct or cure any warranty which was untrue when made, but
supplements or amendments may be used to disclose subsequent facts or events to
maintain the truthfulness of any warranty.
5.12. Indemnification.
(a) For a period of six years after the Effective Time, PGFC
shall indemnify, defend and hold harmless each person who is now, or has been at
any time prior to the date hereof or who becomes prior to the Effective Time, a
director or officer of CSB (collectively, the "Indemnitees") against any and all
claims, damages, liabilities, losses, costs, charges, expenses (including,
without limitation, reasonable costs of investigation, and the reasonable fees
and disbursements of legal counsel and other advisers and experts as incurred),
judgments, fines, penalties and amounts paid in settlement, asserted against,
incurred by or imposed upon any Indemnitee by reason of the fact that he or she
is or was a director or officer of CSB or acted as a director or officer of a
third party at the request of CSB, in connection with, arising out of or
relating to any threatened, pending or completed claim, action, suit or
proceeding (whether civil, criminal, administrative or investigative),
including, without limitation, any and all claims, actions, suits, proceedings
or investigations by or on behalf of or in the right of or against CSB or any of
its affiliates, or by any former or present shareholder of CSB (each a "Claim"
and collectively, "Claims"), including, without limitation, any Claim which is
based upon, arises out of or in any way relates to the Merger, this Agreement,
any of the transactions contemplated by this Agreement, the Indemnitee's service
as a member of the Board of Directors of CSB or any committee thereof, the
events leading up to the execution of this Agreement, any statement,
announcement, recommendation or solicitation made in connection therewith or
related thereto (or the absence of any of the foregoing) and any breach of any
duty in connection with any of the foregoing, in each case to the fullest extent
which CSB would have been permitted under any applicable law and its Governing
Documents had the Merger not occurred (and PGFC shall also advance expenses as
incurred to the fullest extent so permitted).
(b) From and after the Effective Time, PGFC shall assume and
honor any obligation of CSB immediately prior to the Effective Time with respect
to the indemnification of the Indemnitees arising out of the Governing Documents
of CSB or arising out of any written indemnification agreements between CSB and
such persons disclosed in the CSB Disclosure Schedule, as if such obligations
were pursuant to a contract or arrangement between PGFC and such Indemnitees.
(c) In the event PGFC or any of its successors or assigns (i)
reorganizes or consolidates with or merges into or enters into another business
combination transaction with any other person or entity and is not the
resulting, continuing or surviving corporation or entity of such consolidation,
merger or transaction, or (ii) liquidates, dissolves or transfers all or
substantially all of its properties and assets to any person or entity, then,
and in each such case, proper provision shall be made so that the successors and
assigns of PGFC assume the obligations set forth in this Section 5.12.
(d) PGFC shall cause CSB's officers and directors to be
covered, for a period of six years after the Effective Time, under (i) PGFC's
then current officers' and directors' liability insurance policy or (ii) an
extension of CSB's existing officers' and directors' liability insurance policy.
However, PGFC shall only be required to insure such persons upon terms and for
coverages substantially similar to CSB's existing officers' and directors'
liability insurance.
(e) Any Indemnitee wishing to claim indemnification under this
Section 5.12 shall promptly notify PGFC upon learning of any Claim, but the
failure to so notify shall not relieve PGFC of any liability it may have to such
Indemnitee if such failure does not materially prejudice PGFC. In the event of
any Claim (whether arising before or after the Effective Time) as to which
indemnification under this Section 5.12 is applicable, (x) PGFC shall have the
right to assume the defense thereof and PGFC shall not be liable to such
Indemnitees for any legal expenses of other counsel or any other expenses
subsequently incurred by such Indemnitee in connection with the defense thereof,
except that if PGFC elects not to assume such defense, or counsel for the
Indemnitees advises that there are issues which raise conflicts of interest
between PGFC and the Indemnitees, the Indemnitees may retain counsel
satisfactory to them, and PGFC shall pay the reasonable fees and expenses of
such counsel for the Indemnitees as statements therefor are received; provided,
however, that PGFC shall be obligated pursuant to this Section 5.12(e) to pay
for only one firm of counsel for all Indemnitees in any jurisdiction with
respect to a matter unless the use of one counsel for multiple Indemnitees would
present such counsel with a conflict of interest that is not waivable by the
Indemnitees, and (y) the Indemnitees will cooperate in the defense of any such
matter. PGFC shall not be liable for settlement of any claim, action or
proceeding hereunder unless such settlement is effected with its prior written
consent, which will not be unreasonably withheld. Notwithstanding anything to
the contrary in this Section 5.12, PGFC shall not have any obligation hereunder
to any Indemnitee when and if a court of competent jurisdiction shall ultimately
determine, and such determination shall have become final and nonappealable,
that the indemnification of such Indemnitee in the manner contemplated hereby is
prohibited by applicable law or public policy.
5.13. Pooling, Tax-Free Reorganization Treatment and Private
Placement. Neither PGFC, CSB or Weichert shall intentionally take, fail to take
or cause to be taken or not be taken, any action within its control, whether
before or after the Effective Time, which would disqualify the Merger as a (i) a
private placement, (ii) a "pooling of interests" for accounting purposes, or
(iii) as a "reorganization" within the meaning of Section 368(a) of the Code.
PGFC, CSB and Weichert acknowledge that PGFC expects the transaction to be (i) a
private placement, (ii) a tax free "reorganization", and (iii) accounted for as
a "pooling" transaction.
5.14. Securities Law Compliance; Affiliates.
(a) Weichert acknowledges that the shares of PGFC Common Stock
to be issued in the Merger have not been registered, and in connection with the
Merger will not be registered under the Securities Act of 1933, as amended (the
"1933 Act") and, therefore, cannot be resold unless they are registered under
the 1933 Act or unless an exemption from registration is available. Weichert
acknowledges that the PGFC Common Stock to be issued to him in the Merger will
be acquired by him for his own account for the purpose of investment. Weichert
agrees that he will refrain from transferring or otherwise disposing of any of
the CSB Common Stock, or any interest therein, prior to the Merger, or from
transferring or otherwise disposing of any of the PGFC Common Stock he receives
in the Merger, or any interest therein, in such manner as to cause PGFC to be in
violation of the registration requirements of the 1933 Act, or applicable state
securities or blue sky laws. Weichert, upon the signing of this Agreement, has
executed a Subscription Agreement in the form of Schedule 5.14(a). In
furtherance and not in limitation of the foregoing, Weichert will notify PGFC
prior to making any transfer of CSB Common Stock prior to the Closing and shall
make such transfer only if first advised by counsel to PGFC and CSB that the
transferee would not disqualify treatment of the Merger as a private placement
not requiring registration under the 1933 Act or any state blue sky laws or
regulations. Any such transferee must properly complete and execute a
Subscription Agreement in the form of Schedule 5.14(a).
(b) Contemporaneously with the execution and delivery of this
Agreement Weichert shall execute, and any transferee of CSB Common Stock who is
an affiliate of CSB contemporaneously with the receipt of the CSB Common Stock
shall execute, a letter substantially in the form of Schedule 5.14 annexed
hereto agreeing to be bound by the rules which permit the Merger to be treated
as a pooling of interests for accounting purposes. In addition, PGFC shall cause
its affiliates (as that term is used for purposes of qualifying for pooling of
interests) to execute a letter substantially in the form of Schedule 5.14-1
annexed hereto within two weeks of the date hereof, in which such persons agree
to be bound by the rules which permit the Merger to be treated as a pooling of
interests for accounting treatment.
5.15. Compliance with the Industrial Site Recovery Act. CSB,
at PGFC's sole cost and expense, shall obtain prior to the Effective Time,
either: (a) a Letter of Non-Applicability from the New Jersey Department of
Environmental Protection ("NJDEP") stating that none of the facilities located
in New Jersey owned or operated by CSB (each, a "Facility") is an "industrial
establishment," as such term is defined under the Industrial Site Recovery Act
("ISRA"); (b) a Remediation Agreement issued by the NJDEP pursuant to ISRA
authorizing the consummation of the transactions contemplated by this Agreement;
or (c) a Negative Declaration approval, Remedial Action Workplan approval, No
Further Action letter or other document or documents issued by the NJDEP
advising that the requirements of ISRA have been satisfied with respect to each
Facility subject to ISRA. In the event CSB obtains a Remediation Agreement, CSB
will post or have posted an appropriate Remediation Funding Source or will have
obtained the NJDEP's approval to self-guaranty any Remediation Funding Source
required under any such Remediation Agreement.
5.16. Employees Following consummation of the Merger, PGFC
shall make available to all employees and officers of CSB who become employed by
PGB coverage under the benefit plans generally available to PGB's employees and
officers (including pension and health and hospitalization) on the terms and
conditions available to PGB's employees and officers with no uninsured waiting
periods for enrollment in PGFC or PGB medical and dental plans for CSB employees
and their dependents. As soon as administratively feasible following the
consummation of the Merger, the sponsor of the Weichert Profit Sharing and
401(k) Plan (the "Weichert Plan") shall do everything necessary to transfer the
account balances of active CSB employees in the Weichert Plan to the
Peapack-Gladstone Bank Employees' Savings and Investment Plan, and PGFC and PGB
shall do everything necessary to facilitate such transfer. CSB employees will be
given credit under PGFC's or PGB's medical, life, vacation, sick leave,
disability and other welfare plans for prior service with CSB, and CSB's
employees will be granted credit for prior service with CSB, solely for purposes
of eligibility and vesting (but not accrual of benefits) under PGFC's or PGB's
pension and 401(k) plans.
5.17. New PGFC and PGB Director. No later than November 15,
1999, Weichert shall give PGFC notice of his nomination of one of the following:
Xxxxxx Xxxx, Xxxxxxx XxXxxxxxx, Xxxxx X. Weichert or Xxxxxxx X. Xxxxx, XX, each
of who is a current member of the CSB Board of Directors and who has agreed to
serve on the PGFC and PGB Boards, to serve as a PGFC and PGB Board member until
the next annual meeting of shareholders. As of the Effective Time, PGFC shall
cause its Board of Directors and the PGB Board of Directors to appoint to each
such Board Weichert's nominee, and such person shall be elected to serve as such
until the next annual meeting of shareholders. Such director will be entitled to
all fees and PGFC Options Plans in accordance with PGFC's customary practices
and the PGFC Option Plans. If before the Closing all of the aforementioned CSB
Board members cannot serve on the PGFC or PGB Board for any reason, Weichert
shall nominate another person who was a CSB director on the date hereof within
seven days of notice that all of the designated persons is not serving (the
"Replacement Director"). The Replacement Director must be approved by the PGFC
Board.
5.18 Transfer of Shares. Weichert may transfer shares,
provided that before each proposed transfer he furnish PGFC and its counsel with
the number and percentage of total shares outstanding he proposes to transfer
and provided that the transfer would not interfere with the "pooling of
interests" treatment of the Merger or the private placement and each such
transferee complies with Section 5.14.
5.19 Cease Litigation. Prior to the Closing, CSB agrees to
terminate its participation in the action Chatham Savings, FSB and Xxxxx X.
Weichert vs. United States of America, No-783C (the "Litigation") at no cost to
CSB, other than the cost of filing fees and related expenses, which, in the
aggregate, shall not exceed $1,000, and by means reasonably acceptable to PGFC.
Further, CSB will segregate all documents and materials relating to the
Litigation so that PGFC will incur no further obligations with the Litigation
other than supplying the aforementioned segregated documentation. Neither CSB
nor PGFC will benefit or bear any risk concerning the disposition of the
Litigation.
5.22 Demand Registration Rights. PGFC will grant demand
registration rights in customary form to Weichert in connection with the
possible resale of shares of PGFC Common Stock that Weichert will receive in the
Merger. The form of Agreement evidencing such demand registration rights is set
forth in Exhibit A to this Agreement.
5.23 Stay Bonuses and Severance Pay. PGFC or PGB will offer to
enter into agreements in the form and with the persons set forth on Schedule
5.23 to this Agreement.
5.24 Director's Fees. Other than CSB Directors Xxxxx X.
Weichert and Xxxxxxx X. Xxxxx, XX, on or prior to the Effective Time, each
director of CSB who continues to be a director of CSB as of the Effective Time,
shall be paid an advisory fee equal to $10,400.
ARTICLE VI
CLOSING CONDITIONS
6.1. Conditions of Each Party's Obligations Under this
Agreement. The respective obligations of each party under this Agreement to
consummate the Merger shall be subject to the satisfaction, or, where
permissible under applicable law, waiver at or prior to the Effective Time of
the following conditions:
(a) Approval by Weichert; Blue Sky Qualification. This
Agreement and the transactions contemplated hereby shall have been approved by
Weichert in accordance with Section 5.7. The issuance of the PGFC Common Stock
in the Merger shall have been qualified in any state where such qualification is
required under the applicable state securities laws.
(b) Regulatory Filings. All necessary regulatory or
governmental approvals and consents (including without limitation any required
approval of the Commissioner, the OTS or the FRB) required to consummate the
transactions contemplated hereby shall have been obtained without any term or
condition which would materially impair the value of CSB to PGFC. All conditions
required to be satisfied prior to the Effective Time by the terms of such
approvals and consents shall have been satisfied; and all statutory waiting
periods in respect thereof shall have expired.
(c) Suits and Proceedings. No order, judgment or decree shall
be outstanding against a party hereto or a third party that would have the
effect of preventing completion of the Merger; no Legal Proceeding shall be
pending or threatened by any governmental body in which it is sought to restrain
or prohibit the Merger and no Legal Proceeding shall be pending before any court
or governmental agency in which it is sought to restrain or prohibit the Merger
or obtain other substantial monetary or other relief against one or more parties
hereto in connection with this Agreement and which PGFC or CSB determines in
good faith, based upon the advice of their respective counsel, makes it
inadvisable to proceed with the Merger because any such Legal Proceeding has a
significant potential to be resolved in such a way as to deprive the party
electing not to proceed of any of the material benefits to it of the Merger.
(d) Tax Free Exchange. PGFC and CSB shall have received an
opinion, satisfactory to PGFC and CSB, of Pitney, Xxxxxx, Xxxx & Xxxxx, counsel
for PGFC, issued in reliance on tax representation letters from PGFC and CSB
that are customary and reasonable under the circumstances, to the effect that
the transactions contemplated hereby will result in a reorganization (as defined
in Section 368(a) of the Code), and accordingly no gain or loss will be
recognized for federal income tax purposes to PGFC, CSB or PGB or to the
shareholders of CSB who exchange their shares of CSB for PGFC Common Stock
(except to the extent that cash is received in lieu of fractional shares of PGFC
Common Stock).
(e) Pooling of Interests. The Merger shall be qualified to be
treated by PGFC as a pooling-of-interests for accounting purposes and PGFC shall
have received a letter from KPMG LLP to the effect that the Merger will qualify
for pooling-of-interests accounting treatment if closed and consummated in
accordance with this Agreement.
(f) Registration Rights Agreement. PGFC and Weichert shall
have executed a registration rights agreement in the form annexed hereto as
Exhibit A.
(g) Election of Director. PGFC and PGB shall have elected a
person to its Board of Directors selected by Weichert from the current Board of
Directors of CSB.
6.2. Conditions to the Obligations of PGFC Under this
Agreement. The obligations of PGFC under this Agreement shall be further subject
to the satisfaction or waiver, at or prior to the Effective Time, of the
following conditions:
(a) Representations and Warranties; Performance of Obligations
of CSB. The representations and warranties of CSB contained in this Agreement,
other than representations and warranties which are expressly stated to be made
as of the date hereof or as of any other particular date, shall be true and
correct in all material respects on the Closing Date as though made on and as of
the Closing Date. Each of CSB shall have performed in all material respects the
agreements, covenants and obligations necessary to be performed by it or him
prior to the Closing Date. With respect to any representation or warranty which
as of the Closing Date has required a supplement or amendment to the CSB
Disclosure Schedule to render such representation or warranty true and correct
as of the Closing Date, the representation and warranty shall be deemed true and
correct as of the Closing Date only if (i) the information contained in the
supplement or amendment to the Disclosure Schedule related to events occurring
following the execution of this Agreement and (ii) the facts disclosed in such
supplement or amendment would not either alone, or together with any other
supplements or amendments to the CSB Disclosure Schedule, materially adversely
effect the representation as to which the supplement or amendment relates.
(b) Consents. PGFC shall have received the written consents of
any person whose consent to the transactions contemplated hereby is required
under the applicable instrument.
(c) Certificates. CSB shall have furnished PGFC with such
certificates of its officers or others and such other documents to evidence
fulfillment of the conditions set forth in this Section 6.2 as PGFC may
reasonably request.
(d) Litigation. CSB shall have terminated its participation in
the Litigation and segregated the documentation and materials in accordance with
Section 5.19.
6.3. Conditions to the Obligations of CSB Under this
Agreement. The obligations of CSB under this Agreement shall be further subject
to the satisfaction or waiver, at or prior to the Effective Time, of the
following conditions:
(a) Representations and Warranties; Performance of Obligations
of PGFC and PGB. The representations and warranties of PGFC and PGB contained in
this Agreement, other than representations and warranties which are expressly
stated to be made as of the date hereof or as of any other particular date,
shall be true and correct in all material respects on the Closing Date as though
made on and as of the Closing Date. PGFC and PGB shall have performed in all
material respects, the agreements, covenants and obligations to be performed by
them prior to the Closing Date. With respect to any representation or warranty
which as of the Closing Date has required a supplement or amendment to the PGFC
Disclosure Schedule to render such representation or warranty true and correct
as of the Closing Date, the representation and warranty shall be deemed true and
correct as of the Closing Date only if (i) the information contained in the
supplement or amendment to the Disclosure Schedule related to events occurring
following the execution of this Agreement and (ii) the facts disclosed in such
supplement or amendment would not either alone, or together with any other
supplements or amendments to the PGFC Disclosure Schedule, materially adversely
effect the representation as to which the supplement or amendment relates.
(b) Certificates. PGFC shall have furnished CSB with such
certificates of its officers or others and such other documents to evidence
fulfillment of the conditions set forth in this Section 6.3 as CSB may
reasonably request.
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
7.1. Termination. This Agreement may be terminated prior to
the Effective Time, whether before or after approval of this Agreement by
Weichert:
(a) By mutual written consent of the parties hereto;
(b) By PGFC or CSB if the Effective Time shall not have
occurred on or prior to the Cutoff Date unless the failure of such occurrence
shall be due to the failure of the party seeking to terminate this Agreement to
perform or observe its agreements set forth herein to be performed or observed
by such party (or in the case of CSB, the failure of Weichert) at or before the
Effective Time;
(c) By PGFC or CSB upon written notice to the other if any
application for regulatory or governmental approval necessary to consummate the
Merger and the other transactions contemplated hereby shall have been denied or
withdrawn at the request or recommendation of the applicable regulatory agency
or governmental authority or by PGFC upon written notice to CSB if any such
application is approved with conditions which materially impair the value of
CSB, taken as a whole, to PGFC;
(d) By PGFC if (i) there shall have occurred a material
adverse change in the business, operations, assets, or financial condition of
CSB from that disclosed by CSB on the date of this Agreement, or (ii) there was
a material breach in any representation, warranty, covenant, agreement or
obligation of CSB hereunder and such breach shall not have been remedied within
30 days after receipt by CSB of notice in writing from PGFC to CSB specifying
the nature of such breach and requesting that it be remedied;
(e) By CSB if (i) there shall have occurred a material adverse
change in the business, operations, assets or financial condition of PGFC and
its Subsidiaries on a consolidated basis from that disclosed by PGFC on the date
of this Agreement; or (ii) there was a material breach in any representation,
warranty, covenant, agreement or obligation of PGFC or PGB hereunder and such
breach shall not have been remedied within 30 days after receipt by PGFC of
notice in writing from CSB to PGFC specifying the nature of such breach and
requesting that it be remedied;
(f) By CSB, if its respective Board of Directors so determines
by a vote a majority of the members of its entire Board, or Weichert, at any
time during the three business day period commencing with (and including) the
Determination Date if both of the following conditions are satisfied:
(i) the Average Pre-Closing Price of PGFC Common
Stock on the Determination Date (the "Determination Price") is less than the
PGFC Floor Price. The "PGFC Floor Price" is 80% of the PGFC Average Starting
Date Price. The "PGFC Average Starting Date Price" is the average of the high
and low sale price of the PGFC Common Stock on the business day after the
business day this transaction is announced either through a press release or
similar announcement (the "Starting Date"), as the same shall be adjusted to
reflect any Capital Change; and
(ii) (x) the quotient obtained by dividing the
Determination Price by the PGFC Average Starting Date Price (the "PGFC Ratio")
is less than (y) the quotient obtained by dividing the number calculated using
the index of the financial institutions set forth on Schedule 7.1(f) (the "Index
Price") as of the close of business on the Determination Date by the Index Price
as of the close of business of the Starting Date and subtracting 0.20 from the
quotient in this clause (ii)(y) (such number being referred to herein as the
"Index Ratio").
(g) By PGFC if any condition to Closing specified in Section
6.1 or Section 6.2 is not satisfied and is not capable of being satisfied by the
Cutoff Date unless the failure is due to the failure of PGFC to perform or
observe its agreements set forth herein or to be performed by PGFC; or
(h) By CSB if any condition to Closing specified in Section
6.1 or Section 6.3 is not satisfied and is not capable of being satisfied by the
Cutoff Date unless the failure is due to the failure of CSB or Weichert to
perform or observe its agreements set forth herein or to be performed by such
party.
7.2. Effect of Termination. In the event of the termination
and abandonment of this Agreement by either PGFC or CSB pursuant to Section 7.1
hereof, this Agreement (except the provisions of Sections 5.5(b) and 8.1 hereof)
shall forthwith become void and have no effect, without any liability on the
part of any party or its officers, directors or stockholders. Nothing contained
herein, however, shall relieve any party from any liability for any intentional
or material breach of this Agreement. Notwithstanding anything in this Agreement
to the contrary, in no event shall Weichert be liable or responsible to PGFC, or
any other person or entity, pursuant to this Agreement for any monetary
liability, claim or damages, personally or otherwise, for breach of this
agreement or for otherwise failing to perform any of the covenants or agreements
imposed on him hereby. The parties agree that any intentional or material breach
of this Agreement by Weichert shall be deemed a breach in his capacity as
director so that CSB shall incur liability for such breach.
7.3. Amendment. This Agreement may be amended by mutual action
taken by the parties hereto at any time before or after adoption of this
Agreement by Weichert, as sole shareholder of CSB. This Agreement may not be
amended except by an instrument in writing signed on behalf of PGFC, PGB, CSB
and Weichert.
7.4. Extension; Waiver. The parties may, at any time prior to
the Effective Time of the Merger, (i) extend the time for the performance of any
of the obligations or other acts of the other parties hereto; (ii) waive any
inaccuracies in the representations and warranties contained herein or in any
document delivered pursuant thereto; or (iii) waive compliance with any of the
agreements or conditions contained herein. Any agreement on the part of any
party to any such extension or waiver shall be valid only if set forth in an
instrument in writing signed on behalf of such party against which the waiver is
sought to be enforced.
ARTICLE VIII
MISCELLANEOUS
8.1. Expenses. All costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby (including legal,
accounting and investment banking fees and expenses) shall be borne by the party
incurring such costs and expenses.
8.2. Notices. All notices or other communications which are
required or permitted hereunder shall be in writing and sufficient if delivered
personally or sent by telecopier with confirming copy sent promptly thereafter
by overnight courier, messenger or by registered or certified mail, postage
prepaid, as follows:
If to PGFC or PGB:
Peapack-Gladstone Financial Corporation
000 Xxxxx 000 Xxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attn.: Xxxxx X. Xxxxxx, President
With a copy to:
Pitney, Xxxxxx, Xxxx & Xxxxx
Delivery:
000 Xxxxxx Xxxxx
Xxxxxxx Xxxx, Xxx Xxxxxx 00000-0000
Mail:
X.X. Xxx 0000
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
Attn.: Xxxxxx X. Xxxxx, Esq.
If to CSB:
Weichert Co. Realtors
0000 Xxxxx Xxxxxxx 00
Xxxxxx Xxxxxx, Xxx Xxxxxx 00000
Attn.: Xxxxxxx X. Xxxxx, XX, Chairman
With a copy to:
Xxxxxxx Spidi & Xxxxx, PC
One Franklin Square
0000 X Xxxxxx, XX, Xxxxx 000 Xxxx
Xxxxxxxxxx, XX 00000
Attn.: Xxxx X. Spidi, Esq.
If to Xxxxx X. Weichert:
Xxxxx X. Weichert
Weichert Co. Realtors
0000 Xxxxx Xxxxxxx 00
Xxxxxx Xxxxxx, Xxx Xxxxxx 00000
or such other addresses as shall be furnished in writing by any party, and any
such notice or communication shall be deemed to have been given as of the date
so delivered or telecopied and mailed or otherwise transmitted.
8.3. Parties in Interest. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns. No voluntary assignment of this Agreement may
be made except upon the written consent of the other parties hereto. No person
or entity shall be deemed a third-party beneficiary under this Agreement, other
than current and former directors and officers of CSB with respect to Section
5.12 hereof.
8.4. Entire Agreement. This Agreement, which includes the
Disclosure Schedules and other Schedules hereto and the other documents,
agreements and instruments executed and delivered pursuant to or in connection
with this Agreement, contains the entire Agreement between the parties hereto
with respect to the transactions contemplated by this Agreement and supersedes
all prior negotiations, arrangements or understandings, written or oral, with
respect thereto.
8.5. Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement
and each of which shall be deemed an original.
8.6. Governing Law. This Agreement shall be governed by the
laws of the State of New Jersey, without giving effect to the principles of
conflicts of laws thereof.
8.7. Descriptive Headings. The descriptive headings of this
Agreement are for convenience only and shall not control or affect the meaning
or construction of any provision of this Agreement.
8.8. No Survival. Except for Section 3.9, the representations
and warranties set forth in Articles III and IV hereof shall not survive the
Closing, but shall expire as of the Effective Time. Those agreements and
covenants of the parties which by their terms are intended to be performed after
the Effective Time shall survive the Closing.
8.9. Knowledge. For purposes of this Agreement, information
shall be deemed known to a party hereto if it is actually know by one or more of
such party's executive officers.
IN WITNESS WHEREOF, PGFC, PGB and CSB have caused this
Agreement to be executed by their duly authorized officers and Weichert has
executed this Agreement in his capacity as sole shareholder, all as of the date
first above written.
ATTEST: PEAPACK-GLADSTONE
FINANCIAL CORPORATION
By: ___________________________ By: _____________________________
Xxxxxx X. Birmingham, Senior Xxxxx X. Xxxxxx, President
Vice President & Comptroller
ATTEST: PEAPACK-GLADSTONE BANK
By: _____________________________ By: _____________________________
Xxxxxx X. Birmingham, Cashier Xxxxx X. Xxxxxx, President
ATTEST: CHATHAM SAVINGS, FSB
By: ____________________________ By: _____________________________
, Secretary Xxxxxxx X. Xxxxx, XX, Chairman
WITNESS:
____________________________ ______________________________
Xxxxx X. Weichert, shareholder
SCHEDULE 5.7
WRITTEN CONSENT OF SOLE STOCKHOLDER
OF
CHATHAM SAVINGS, FSB
In accordance with Article II, Section 16 of the Bylaws
In accordance with Article II, Section 16, of the Bylaws of Chatham
Savings, FSB (the "Savings Bank"), Xxxxx X. Weichert, as the sole stockholder of
the Savings Bank, does hereby consent to the following action taken by the
Savings Bank:
1. RESOLVED, that the Agreement and Plan of Merger dated August
26, 1999, a copy of which is attached hereto as Exhibit A (the
"Agreement"), by and between Peapack-Gladstone Financial
Corporation and the Savings Bank, whereby the Savings Bank
will be merged with and into Peapack-Gladstone Bank, which
bank shall survive the merger, be, and it hereby is,
authorized, adopted, ratified and approved.
Date: August 26, 1999 By: ___________________________
Xxxxx X. Weichert
Stockholder
STATE OF NEW JERSEY )
) ss:
COUNTY OF SOMERSET )
Subscribed and sworn to before me this 26th day of August, 1999.
[SEAL] ____________________________
NOTARY PUBLIC
My commission expires: _________________
SCHEDULE 5.14(a)
FORM OF SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT made as of this ___ day of ___________, 1999
between Peapack-Gladstone Financial Corporation, a New Jersey corporation and
bank holding company (the "Company"), and the undersigned (the "Subscriber").
WHEREAS, pursuant to a private placement, the Company will issue
291,172 shares of its common stock (the "Company Common Stock") in exchange for
the 140,000 shares of Chatham Savings, FSB common stock, par value $.01 per
share ("CSB Common Stock") issued and outstanding pursuant to an Agreement and
Plan of Merger among the Company, Chatham Savings, FSB ("CSB") and Xxxxx X.
Weichert (the "Merger Agreement").
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants hereinafter set forth, the parties hereto do hereby agree as follows:
I. SUBSCRIPTION FOR SHARES AND REPRESENTATIONS BY SUBSCRIBER
Subscriber hereby represents and warrants to the Company as follows:
1.1 Subscriber owns _______ shares of CSB Common Stock. The
shares will be exchanged for Company Common Stock in accordance with the Merger
Agreement.
1.2 Subscriber acknowledges that this offering of Shares
pursuant to the Merger has not been registered with the Securities and Exchange
Commission ("SEC") because it is intended to be a private placement pursuant to
Section 4(2) of the Act and Regulation D thereunder. In order to assure that the
offering is a private placement, each subscriber must meet certain
qualifications. Subscribers representation that he is an accredited investor and
the representations set forth below are material facts relating to the
qualification as a private placement.
1.3 Subscriber represents that the Shares are being acquired
for his own account, for investment and not with a view to the distribution or
resale to others. Subscriber acknowledges that the Shares have not been
registered under the Act, or any state securities laws, and may not be offered,
sold or transferred by Subscriber unless registered under the Act and applicable
state securities laws, or an exemption from registration is available in the
opinion of Company counsel.
1.4 Subscriber represents that he is an "accredited investor"
as such term in defined in Rule 501 of Regulation D promulgated under the
Securities Act of 1933 (the "Act"), and as indicated by his response below, and
that he is able to bear the economic risk of an investment in the Shares;
Accredited Investor Questionnaire
Please check the following that apply to you:
____ (1) A natural person whose individual net worth,
or joint net worth with that person's spouse, at the
time of his purchase exceeds $1,000,000;
____ (2) A natural person who had individual income in
excess of $200,000, or joint income with that
person's spouse in excess of $300,000, in each of the
two most recent years and reasonably expects to reach
or exceed said income level this year; and
____ (3) An entity in which all of the equity owners are
accredited investors.
1.5 Subscriber acknowledges that he has prior investment
experience, including investment in securities not listed on an exchange or
NASDAQ, and/or he has employed the services of an attorney or accountant to read
all of the documents furnished or made available by the Company to him and to
evaluate the merits and risks of such an investment on his behalf.
1.6 Subscriber acknowledges that he has been furnished by the
Company during the course of this transaction with all information regarding the
Company which he had requested or desired to know; that all documents which
could be reasonably provided have been made available for his inspection and
review; that he has been afforded the opportunity to ask questions of and
receive answers from duly authorized officers or other representatives of the
Company concerning the terms and conditions of the offering, and any additional
information which he had requested.
1.7 Subscriber understands that the Company will review this
Subscription Agreement and that the Company reserves the right to refuse to
close if this subscription would disqualify the offering as a private placement.
1.8 Subscriber hereby represents that, except for the Merger
Agreement, no representations or warranties have been made to Subscriber by the
Company or any agent, employee or affiliate of the Company and in entering into
this transaction. Subscriber is not relying on any information, other than that
contained in the SEC public filings by the Company and the FDIC filings by
Chatham, the Merger Agreement (including all Exhibits and Schedules) and the
results of any independent investigation by Subscriber.
1.9 Certificates representing the Shares to be issued
hereunder shall bear the following, or similar legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A PRIVATE
PLACEMENT TRANSACTION AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED. THE SHARES REPRESENTED BY THIS CERTIFICATE MAY
ONLY BE TRANSFERRED IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT AND
PLAN OF MERGER DATED AUGUST 26, 1999, AMONG THE REGISTERED HOLDER
HEREOF AND PEAPACK-GLADSTONE FINANCIAL CORPORATION ("PGFC"), A COPY OF
WHICH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF PGFC."
1.10 Subscriber expressly authorizes that the Company and its
counsel to rely on the foregoing representations in determining whether there
has been a private placement in connection with the Merger Agreement.
II. MISCELLANEOUS
2.1 This Subscription Agreement shall not be changed, modified
or amended except by a writing signed by the parties to be charged.
2.2 This Subscription Agreement shall be binding upon and
inure to the benefit of the parties hereto and to their respective heirs, legal
representatives, successors and assigns.
2.3 The parties expressly agree that all the terms and
provisions hereof shall be construed in accordance with and governed by the laws
of the State of New Jersey.
2.4 This Subscription Agreement may be executed in
counterparts.
IN WITNESS WHEREOF, the subscriber has executed and delivered this
Subscription Agreement as of the day and year first written above.
____________________________________ ____________________________________
Name of Subscriber Signature of Subscriber
Date: ______________________________ ____________________________________
Number of Shares of CSB Common Stock
Subscriber Owns
Subscription Accepted:
Peapack-Gladstone Financial Corporation
By:_______________________________
Xxxxx X. Xxxxxx, President
SCHEDULE 5.14
FORM OF CHATHAM SAVINGS, FSB AFFILIATE LETTER
__________ __, 0000
Xxxxxxx-Xxxxxxxxx Financial Corporation
000 Xxxxx 000 Xxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attn.: Xxxxx X. Xxxxxx, President
Gentlemen:
I am delivering this letter to you in connection with the
proposed merger (the "Merger") of Chatham Savings, FSB (the "Company"), with and
into Peapack-Gladstone Bank ("PGB") pursuant to the Agreement and Plan of Merger
dated August 26, 1999 (the "Agreement") among the Company, Peapack-Gladstone
Financial Corporation ("PGFC"), PGB and Xxxxx X. Weichert. I currently own
shares of the Company's common stock ("CSB Common Stock"). As a result of the
Merger, I will receive shares of PGFC's common stock ("PGFC Common Stock"), in
exchange for my CSB Common Stock.
I have been advised that as of the date of this letter I may
be deemed to be an "affiliate" of the Company, as the term "affiliate" is used
for purposes of the SEC's rules and regulations applicable to the determination
of whether a merger can be accounted for as a "pooling of interests" as
specified in Accounting Series Release 135 of the Securities and Exchange
Commission (the "SEC"), as amended by Staff Accounting Bulletins Nos. 65 and 76
("ASR 135").
I represent to and agree with PGFC that:
A. Transfer Review Restrictions. During the period beginning
on the date hereof and ending 30 days prior to the consummation of the Merger, I
shall not sell, transfer or otherwise dispose of ("transfer") any CSB Common
Stock owned by me, and I shall not permit any relative who shares my home, or
any person or entity who or which I control, from transferring any CSB Common
Stock owned by such person or entity, without notifying PGFC in advance of the
proposed transfer and giving PGFC a reasonable opportunity to review the
transfer before it is consummated. PGFC, if advised to do so by its independent
public accountants, may instruct me not to make or permit the transfer because
it may interfere with the affiliate rules relating to the "pooling of interests"
treatment of the Merger. I shall abide by any such instructions.
B. Transfer Restrictions During Merger Consummation Period.
Other than with PGFC's prior written consent, I shall not transfer any CSB
Common Stock owned by me, and I shall not permit any relative who shares my
home, or any person or entity who or which I control, to transfer any CSB Common
Stock owned by such person or entity during the period beginning 30 days prior
to the consummation of the Merger and ending immediately after financial results
covering at least 30 days of post-Merger combined operations have been published
by means of the filing of a Form 10-Q, Form 10-K or Form 8-K under the
Securities Exchange Act of 1934, as amended, the issuance of a quarterly or
year-end earnings report, or any other public issuance which satisfies the
requirements of ASR 135. For purposes of this paragraph only, "CSB Common Stock"
includes PGFC Common Stock into which my CSB Common Stock is converted.
C. Compliance with 1933 Act. I have been advised that the
issuance of PGFC Common Stock to me pursuant to the Merger will be issued in a
private placement and not registered with the SEC under the Securities Act of
1933, as amended (the "1933 Act"). This stock will be restricted under the 1933
Act. I may not transfer such PGFC Common Stock unless (i) in the opinion of
PGFC's counsel or counsel reasonably acceptable to PGFC, such transfer is exempt
from registration under the 1933 Act or (ii) such transfer is registered under
the 1933 Act.
D. Stop Transfer Instructions; Legend on Certificates. I also
understand that stop transfer instructions will be given to PGFC's transfer
agents with respect to the PGFC Common Stock and that there will be placed on
the certificates of the PGFC Common Stock issued to me, or any substitutions
therefor, a legend stating in substance:
"THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A PRIVATE
PLACEMENT TRANSACTION AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED. THE SHARES REPRESENTED BY THIS CERTIFICATE MAY
ONLY BE TRANSFERRED IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT AND
PLAN OF MERGER DATED AUGUST 26, 1999, AMONG THE REGISTERED HOLDER
HEREOF AND PEAPACK-GLADSTONE FINANCIAL CORPORATION ("PGFC"), A COPY OF
WHICH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF PGFC."
E. Consultation with Counsel. I have carefully read this
letter and the Agreement and discussed the requirements of such documents and
other applicable limitations upon my ability to transfer PGFC Common Stock to
the extent I felt necessary with my counsel or counsel for the Company.
Execution of this letter is not an admission on my part that I
am an "affiliate" of the Company as described in the second paragraph of this
letter, or a waiver of any rights I may have to object to any claim that I am
such an affiliate on or after the date of this letter. This letter shall
terminate concurrently with any termination of the Agreement in accordance with
its terms.
Very truly yours,
-----------------------------
Name:
Accepted this _____ day of
________, 1999 by
PEAPACK-GLADSTONE FINANCIAL CORPORATION
By: _________________________
SCHEDULE 5.14-1
FORM OF PEAPACK-GLADSTONE FINANCIAL CORPORATION AFFILIATE LETTER
Peapack-Gladstone Financial Corporation
000 Xxxxx 000 Xxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attn.: Xxxxx X. Xxxxxx, President
Gentlemen:
I am delivering this letter to you in connection with the
proposed merger (the "Merger") of Chatham Savings, FSB ("CSB"), with and into
Peapack-Gladstone Bank ("PGB"), pursuant to the Agreement and Plan of Merger
dated as of August 26, 1999 (the "Agreement") among Peapack-Gladstone Financial
Corporation ("PGFC"), PGB, CSB and Xxxxx X. Weichert. I currently own shares of
PGFC's common stock ("PGFC Common Stock").
I have been advised that as of the date of this letter I may
be deemed to be an "affiliate" of PGFC, as the term "affiliate" is used for
purposes of the rules and regulations of the Securities and Exchange Commission
(the "SEC") applicable to the determination of whether a merger can be accounted
for as a "pooling of interests" as specified in the SEC's Accounting Series
Release 135, as amended by Staff Accounting Bulletins Nos.
65 and 76 ("ASR 135").
I represent and covenant with PGFC and CSB that:
A. Transfer Restrictions Prior to Merger Consummation. During
the period beginning on the date hereof and ending 30 days prior to the
consummation of the Merger, I shall not sell, transfer or otherwise dispose of
("transfer") any PGFC Common Stock owned by me, and I shall not permit any
relative who shares my home, or any person or entity who or which I control,
from transferring any PGFC Common Stock owned by such person or entity, without
notifying PGFC in advance of the proposed transfer and giving PGFC a reasonable
opportunity to object to the transfer before it is consummated. PGFC, upon
advice of its independent public accountants, may instruct me not to make or
permit the transfer because it may interfere with the affiliate rules relating
to the "pooling of interests" treatment of the Merger. I shall abide by any such
instructions.
B. Transfer Restrictions During Merger Consummation Period.
Other than with PGFC's prior written consent, I shall not transfer any PGFC
Common Stock owned by me, and I shall not permit any relative who shares my
home, or any person or entity who or which I control, to transfer any PGFC
Common Stock owned by such person or entity during the period beginning 30 days
prior to the consummation of the Merger and ending immediately after financial
results covering at least 30 days of post-Merger combined operations have been
published by means of the filing of a Form 10-Q, Form 10-K or Form 8-K under the
Securities Exchange Act of 1934, as amended, the issuance of a quarterly or
year-end earnings report, or any other public issuance which satisfies the
requirements of ASR 135.
C. Consultation with Counsel. I have carefully read this
letter and the Agreement and discussed the requirements of such documents and
other applicable limitations upon my ability to transfer PGFC Common Stock to
the extent I felt necessary with my counsel or counsel for PGFC.
Execution of this letter is not an admission on my part that I
am an "affiliate" of PGFC as described in the second paragraph of this letter,
or a waiver of any rights I may have to object to any claim that I am such an
affiliate on or after the date of this letter. This letter shall terminate
concurrently with any termination of the Agreement in accordance with its terms.
Very truly yours,
-----------------------------
Name:
Accepted this ___ day of
____________, 1999 by
PEAPACK-GLADSTONE FINANCIAL CORPORATION
By: ___________________________
Name:
Title:
SCHEDULE 5.23
[CSB LETTERHEAD]
[DATE]
Xxxx Xxxxxxxxx
President
Chatham Savings, FSB
000 Xxxx Xxxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Dear Xxxx:
This letter is being written to you in connection with the acquisition
of Chatham Savings, FSB ("CSB") by Peapack-Gladstone Financial Corporation
("PGFC") pursuant to the merger ("Merger") contemplated by the Agreement and
Plan of Merger, dated August 26, 1999, between CSB, PGFC and Xxxxx X. Weichert
(the "Merger Agreement").
The purpose of this Letter Agreement is to provide you with certain
incentives to assure that you will be willing to remain in CSB's employ or, in
certain circumstances described below, PGFC's employ during the transition
period described below.
For purposes of this Letter Agreement, the following terms shall have
the following meanings:
(a) "Transition Period" shall mean the period commencing on the date
hereof and expiring on the Closing (as defined in the Merger Agreement), and the
last day of the Transition Period is referred to herein as the "Final Day".
(b) "Employer" shall mean CSB. However, should you accept employment by
PGFC or any affiliate of PGFC, then after you commence working for PGFC or any
such affiliate, the term "Employer" shall mean PGFC or such affiliate.
(c) "Cause" shall mean (i) willful and continued failure by the
Executive to perform his duties for the Company under this Agreement after at
least one warning in writing from the Board identifying specifically any such
failure; (ii) the willful engaging by the Executive in misconduct which causes
material injury to the Company as specified in a written notice to the Executive
from the Board; or (iii) conviction of a crime, other than a traffic violation,
habitual drunkenness, drug abuse, or excessive absenteeism other than for
illness, after a warning (with respect to drunkenness or absenteeism only) in
writing from the Board to refrain from such behavior, provided that "Cause"
shall not exist if either (i) the instruction which you fail to follow differ
materially from action regularly performed by you prior to August 1, 1999, or
(ii) you honor such instructions to a reasonable extent within 15 days after you
receive written notice describing such willful refusal in reasonable detail.
(d) Your employment with Employer shall be deemed to have "Terminated
Without Good Reason" in the event of (i) a termination by the Employer of your
employment with the Employer during the Transition Period without Cause, or (ii)
a termination by you or your employment with the Employer during the Transition
Period if such termination by you occurs within thirty days after (a) the
Employer requires you to perform services as an employee from locations which
are more than thirty miles further from your current home than the locations
from which you currently provide services or (b) your cash salary or other forms
of compensation specified by contract are reduced by the Employer during the
Transition Period.
To induce you to remain in the employ of the Employer during the
Transition Period, CSB hereby agrees to pay you the following:
(i) Stay Bonus. As a bonus if you stay through the end of the
Transition Period or you are Terminated Without Good Reason, the Employer will
pay you a $30,000 bonus.
(ii) Severance Pay. If you stay through the end of the Transition
Period or your employment with the Employer is Terminated Without Good Reason
during the Transition Period, you shall receive the following severance benefits
(subject to your providing an agreement satisfactory to us that you are not
entitled to any other compensation or severance pay):
(a) provide outplacement service for six months;
(b) compensation for unused accrued vacation;
(c) health and dental COBRA paid for three months; and
(d) either provide you with:
(i) salary paid in normal increments for three months;
or
(ii) salary paid in normal increments for six months if
you enter into a non-compete agreement with us on a
form to be provided.
(iii)No other plan coverage. You will not be covered by
any other severance plan for Chatham Bank
employees.
Please note that applicable payroll taxes will be withheld from any
payments to be made to you hereunder. Furthermore, as I am sure you recognize,
this letter does not constitute a contract of employment and does not limit in
any way the Employer's right to terminate your employment at any time prior to
the Merger or PGFC's right to terminate your employment at or subsequent to the
Merger.
By its execution hereof, PGFC hereby agrees to assume all of CSB's
obligations hereunder from and after the date on which the Merger is
consummated.
CHATHAM SAVINGS, FSB
_______________________________
Xxxxxxx X. Xxxxx, XX, Chairman
ACCEPTED
PEAPACK-GLADSTONE FINANCIAL CORPORATION
__________________________
Xxxxx X. Xxxxxx, President
[CSB LETTERHEAD]
[DATE]
Xxxx Xxxxxxx
Senior Lender
Chatham Savings, FSB
000 Xxxx Xxxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Dear Xxxx:
This letter is being written to you in connection with the acquisition
of Chatham Savings, FSB ("CSB") by Peapack-Gladstone Financial Corporation
("PGFC") pursuant to the merger ("Merger") contemplated by the Agreement and
Plan of Merger, dated August 26, 1999, between CSB, PGFC and Xxxxx X. Weichert
(the "Merger Agreement").
The purpose of this Letter Agreement is to provide you with certain
incentives to assure that you will be willing to remain in CSB's employ or, in
certain circumstances described below, PGFC's employ during the transition
period described below.
For purposes of this Letter Agreement, the following terms shall have
the following meanings:
(a) "Transition Period" shall mean the period commencing on the date
hereof and expiring on the date of the computer conversion, but not later than
the 180th day after the Merger is consummated, and the last day of the
Transition Period is referred to herein as the "Final Day".
(b) "Employer" shall mean CSB. However, should you accept employment by
PGFC or any affiliate of PGFC, then after you commence working for PGFC or any
such affiliate, the term "Employer" shall mean PGFC or such affiliate.
(c) "Cause" shall mean (i) willful and continued failure by the
Executive to perform his duties for the Company under this Agreement after at
least one warning in writing from the Board identifying specifically any such
failure; (ii) the willful engaging by the Executive in misconduct which causes
material injury to the Company as specified in a written notice to the Executive
from the Board; or (iii) conviction of a crime, other than a traffic violation,
habitual drunkenness, drug abuse, or excessive absenteeism other than for
illness, after a warning (with respect to drunkenness or absenteeism only) in
writing from the Board to refrain from such behavior, provided that "Cause"
shall not exist if either (i) the instruction which you fail to follow differ
materially from action regularly performed by you prior to August 1, 1999, or
(ii) you honor such instructions to a reasonable extent within 15 days after you
receive written notice describing such willful refusal in reasonable detail.
(d) Your employment with Employer shall be deemed to have "Terminated
Without Good Reason" in the event of (i) a termination by the Employer of your
employment with the Employer during the Transition Period without Cause, or (ii)
a termination by you or your employment with the Employer during the Transition
Period if such termination by you occurs within thirty days after (a) the
Employer requires you to perform services as an employee from locations which
are more than thirty miles further from your current home than the locations
from which you currently provide services or (b) your cash salary or other forms
of compensation specified by contract are reduced by the Employer during the
Transition Period.
To induce you to remain in the employ of the Employer during the
Transition Period, CSB hereby agrees to pay you the following:
(i) Stay Bonus. The Employer will pay you $15,000 as a bonus if you
stay through the Final Day or you are Terminated Without Good Reason before the
Final Day. This bonus will be forfeited if you leave employment of the Employer
before the Final Day. If you are employed with the Employer after the Final Day,
you will be guaranteed the annualized base salary of $50,880 and your annualized
incentive compensation for six months or such shorter period as you are employed
by us.
(ii) Severance Pay. If your employment with the Employer is Terminated
Without Good Reason before the Final Day, you shall receive two weeks salary per
full year of employment as severance benefits (subject to your providing an
agreement satisfactory to us that you are not entitled to any other compensation
or severance pay). If employment with the Employer is Terminated Without Good
Reason during the six month period after the Final Day, you will receive $25,440
and six months of your annualized incentive compensation minus the salary and
incentive compensation you have received since the Final Day date as severance
benefits (subject to your providing an agreement satisfactory to us that you are
not entitled to any other compensation or severance pay).
(iii) No other plan coverage. You will not be covered by any other
severance plan for Chatham Bank employees.
Please note that applicable payroll taxes will be withheld from any
payments to be made to you hereunder. Furthermore, as I am sure you recognize,
this letter does not constitute a contract of employment and does not limit in
any way the Employer's right to terminate your employment at any time prior to
the Merger or PGFC's right to terminate your employment at or subsequent to the
Merger.
By its execution hereof, PGFC hereby agrees to assume all of CSB's
obligations hereunder from and after the date on which the Merger is
consummated.
CHATHAM SAVINGS, FSB
________________________________
Xxxxxxx X. Xxxxx, XX, Chairman
ACCEPTED
PEAPACK-GLADSTONE FINANCIAL CORPORATION
_______________________________________
Xxxxx X. Xxxxxx, President
[CSB LETTERHEAD]
[DATE]
Xxxxxxx Xxxx
AVP/Corporate Secretary
Chatham Savings, FSB
000 Xxxx Xxxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Dear Xxxxxxx:
This letter is being written to you in connection with the acquisition
of Chatham Savings, FSB ("CSB") by Peapack-Gladstone Financial Corporation
("PGFC") pursuant to the merger ("Merger") contemplated by the Agreement and
Plan of Merger, dated August 26, 1999, among CSB, PGFC, Peapack-Gladstone Bank
("PGB") and Xxxxx X. Weichert (the "Merger Agreement").
We hereby offer you the job of Assistant Vice President of PGB
following the Closing (as defined in the Merger Agreement). To induce you to
remain in the employ of PGB following the Closing, we have been instructed to
inform you that PGB will increase your annual salary from $43,566 to $48,000 and
you will be granted at closing 200 stock options subject to the terms of PGFC's
stock option plan and a grant agreement vesting over 5 years.
Please note that applicable payroll taxes will be withheld from any
payments to be made to you hereunder. Furthermore, as I am sure you recognize,
this letter does not constitute a contract of employment and does not limit in
any way CSB's right to terminate your employment at any time prior to the Merger
or PGB's right to terminate your employment at or subsequent to the Merger.
By its execution hereof, PGB hereby agrees to assume all of CSB's
obligations hereunder from and after the date on which the Merger is
consummated.
CHATHAM SAVINGS, FSB
______________________________
Xxxxxxx X. Xxxxx, XX, Chairman
ACCEPTED
PEAPACK-GLADSTONE BANK
__________________________
Xxxxx X. Xxxxxx, President
SCHEDULE 7.1(f)
Index
----------------------------------------- ------------ --------------- ------------------- ---------------- ===============
07/28/99 Market
07/28/99 Capitalization Index
Closing Price ($M) Weighting (%) Weighting
Company Name Ticker ($) Price ($)
----------------------------------------- ------------ --------------- ------------------- ---------------- ===============
1 Center Bancorp, Inc. CNBC 14.125 53.17 0.0383 0.5410
2 Interchange Financial Services ISB 19.625 140.89 0.1025 1.9916
Corporation
3 Vista Bancorp, Inc. VBNJ 19.000 91.43 0.0659 1.2513
4 Yardville National Bancorp YANB 13.375 88.56 0.0638 0.8532
5 Mid Penn Bancorp, Inc. MBP 24.625 71.24 0.0513 1.2636
0 Xxxx Xxxx Xxxx Corporation BMTC 27.188 116.77 0.0841 2.2868
7 Xxxxxxx Valley Bancorp Inc. CVAL 17.000 62.88 0.0453 0.7700
8 CNB Financial Corp. CNBF 15.500 117.20 0.0844 1.3085
9 Comm Bancorp, Inc. CCBP 34.000 70.86 0.0510 1.7354
10 Drovers Bancshares Corporation DROV 23.000 108.00 0.0778 1.7892
11 Greater Community Bancorp GFLS 10.500 58.90 0.0424 0.4455
12 Progress Financial Corporation PFNC 14.125 76.23 0.0549 0.7756
13 Royal Bancshares of RBPAA 16.125 121.02 0.0872 1.4056
Pennsylvania, Inc.
14 Sterling Financial Corporation SLFI 32.750 211.15 0.1521 4.9810
------ ------
TOTALS 1,388.00 21.40
The "Index Price" is determined by adding the weighted price per common share of
each of the companies listed above on the appropriate date (i.e., the Starting
Date or the Determination Date, as the case nay be). If 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 price per
share of the common stock of such company on the Determination Date shall be
appropriately adjusted.
If, at any time after the Starting Date and before the Determination Date, the
common stock of any company on this Schedule ceases to be publicly traded or any
public announcement of a proposal for such company to be acquired or for such
company to acquire another company or companies in transactions with a value
exceeding 25% of the acquiror's market capitalization, such company shall be
removed from the Index Group effective as of the Starting Date (i.e., such
Company shall not be considered part of the Index Group for any purposes in
connection with this Merger Agreement) and the Index Weighting of the remaining
companies in the Index Group shall be increased proportionately to their prior
Index Weighting, so that the total Index Weighting is 100%.
Exhibit 1
Principal and Branch Offices of Peapack-Gladstone Bank
Loan & Administration Building
000 Xxxxx 000 Xxxxx
Xxxxxxxxx, XX 00000
000-000-0000
Gladstone (Principal Office)
000 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
000-000-0000
Califon
000 Xxxxx 000
Xxxxxxx, XX 00000
000-000-0000
Far Hills
00 Xxxxxx Xxxx
Xxx Xxxxx, XX 00000
000-000-0000
Long Valley
00 Xxxx Xxxx Xxxx (Xxxxx 00)
Xxxx Xxxxxx, XX 00000
000-000-0000
Pluckemin
000 Xxxxx 000 Xxxxx
Xxxxxxxxxx, XX 00000
000-000-0000
Bernardsville
00 Xxxxxxxxxx Xxxx
Xxxxxxxxxxxxx, XX 00000
000-000-0000
Chester
000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
000-000-0000
Fellowship Village
0000 Xxxxxxxxxx Xxxx
Xxxxxxx Xxxxx, XX 00000
000-000-0000
Mendham
00 Xxxx Xxxx Xxxxxx
Xxxxxxx, XX 00000
000-000-0000
Pottersville
00 Xxxxxxxxxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
000-000-0000
Principal and Branch Offices of Chatham Savings, FSB
000 Xxxx Xxxxxx (Xxxxxxxxx Xxxxxx)
Xxxxxxx, Xxx Xxxxxx 00000
000 Xxxxxxxx Xxxx
Xxxxxxx, Xxx Xxxxxx 00000
Location of All Branch Offices of the Surviving Bank
Loan & Administration Building
000 Xxxxx 000 Xxxxx
Xxxxxxxxx, XX 00000
000-000-0000
Gladstone (Principal Office)
000 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
000-000-0000
Califon
000 Xxxxx 000
Xxxxxxx, XX 00000
000-000-0000
Far Hills
00 Xxxxxx Xxxx
Xxx Xxxxx, XX 00000
000-000-0000
Long Valley
00 Xxxx Xxxx Xxxx (Xxxxx 00)
Xxxx Xxxxxx, XX 00000
000-000-0000
Pluckemin
000 Xxxxx 000 Xxxxx
Xxxxxxxxxx, XX 00000
000-000-0000
Bernardsville
00 Xxxxxxxxxx Xxxx
Xxxxxxxxxxxxx, XX 00000
000-000-0000
Chester
000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
000-000-0000
Fellowship Village
0000 Xxxxxxxxxx Xxxx
Xxxxxxx Xxxxx, XX 00000
000-000-0000
Mendham
00 Xxxx Xxxx Xxxxxx
Xxxxxxx, XX 00000
000-000-0000
Pottersville
00 Xxxxxxxxxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
000-000-0000
Chatham
000 Xxxx Xxxxxx
Xxxxxxx, Xxx Xxxxxx 00000
000 Xxxxxxxx Xxxx
Xxxxxxx, Xxx Xxxxxx 00000
Capital Stock, Number of Shares, Par Value and Surplus of Surviving Bank
The Surviving Bank will have capital of $3,892,063, divided into 1,167,619
shares of common stock, each of $3.33 par value, $6,218,047 of surplus, and
undivided profits of $27,414,328.
Directors of Surviving Bank
Xxxxxx Xxxx
Xxxxx X. Xxxxxx
Xxxxx X. Xxxx, Esq.
Xxxxxx X. Xxxxxx
Xxxx X. Xxxxxxx
Xxxx X. Xxxxx
T. Xxxxxxx Xxxx
Xxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
X. Xxxxxxxx Xxxxxxxxx
Xxxxxxx X. Xxxxx III
Xxxxxxx Xxxxxxxx
_______________ [ONE MORE PURSUANT TO ss.5.17]
Officers of Surviving Bank
T. Xxxxxxx Xxxx, Chairman of the Board
Xxxxxx X. Xxxxxx, Senior Vice President & COO
Xxxxxx X. Birmingham, Senior Vice President & Comptroller
Xxxxxxx X. Xxxxx, Senior Vice President-Personnel
Xxxxx X. Xxxxxx, President & CEO
Xxxx X. Xxxx, Senior Vice President
Xxxxxxx X. Xxxxxxx, Senior Vice President-Lending
Xxxxx X. Xxxxxxxxx, Senior Vice President & Trust Officer
Exhibit A
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made
and entered into as of ___________, by and between Peapack-Gladstone Financial
Corporation, a New Jersey corporation ("PGFC"), and Xxxxx Xxxxxxxx (the
"Shareholder").
WHEREAS, immediately prior to the consummation of the Merger
(as defined below), the Shareholder was the owner of _____ shares of common
stock in Chatham Savings FSB, a federally-chartered savings bank (the "Bank");
WHEREAS, the Shareholder has been issued Common Shares
(defined below) in connection with the merger (the "Merger") of the Bank with
and into Peapack-Gladstone Bank ("Merger Subsidiary"), a commercial bank
chartered under the laws of the State of New Jersey and a wholly-owned
subsidiary of PGFC, pursuant to the terms of the Agreement and Plan of Merger,
dated as of __________ (the "Merger Agreement"), by and among PGFC, Merger
Subsidiary, the Bank, and the Shareholder;
WHEREAS, pursuant to the terms of the Merger Agreement and
subject to the terms hereof, PGFC has agreed to grant to the Shareholder the
registration rights provided for below.
NOW, THEREFORE, the parties hereto, in consideration of the
foregoing, the mutual covenants and agreements set forth in the Merger Agreement
and hereinafter set forth, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, agree as follows:
1. Certain Definitions. As used in this Agreement, the
following capitalized defined terms shall have the following meanings:
"Common Shares" shall mean shares of common stock, no par
value, of PGFC.
"Person" shall mean any individual, corporation, company,
partnership, association, trust, estate or other natural or juridical entity or
organization, including without limitation any foreign, domestic, federal,
territorial, state or local governmental authority, quasi-governmental
authority, instrumentality, court, government, self-regulatory organization,
commission, or tribunal or any regulatory, administrative or other agency, or
political or other subdivision, department or branch of any of the foregoing.
"Prospectus" shall mean any prospectus included in the
Registration Statement, including any resale prospectus and any preliminary
prospectus, and any amendment or supplement thereto, and in each case including
all material incorporated by reference therein.
"Registration Expenses" shall mean the following expenses
incident to performance of or compliance with this Agreement: (i) all applicable
registration and filing fees imposed by the SEC and such securities exchange or
exchanges, if any, on which Common Shares are then listed or the National
Association of Securities Dealers, Inc. (the "NASD"); (ii) all fees and expenses
incurred in connection with compliance with state securities or "blue sky" laws
(including reasonable fees and disbursements of counsel in connection with
qualification of any of the Shares under any state securities or blue sky laws
and the preparation of a blue sky memorandum) and compliance with the rules of
the NASD; (iii) all expenses of any Persons in preparing or assisting in
preparing, printing and distributing the Registration Statement, any Prospectus,
stock certificates and other documents relating to the performance of and
compliance with this Agreement; (iv) all fees and expenses incurred in
connection with the listing, if any, of any of the Shares on any securities
exchange or exchanges pursuant to Section 3(i) hereof; and (v) the fees and
disbursements of counsel for PGFC and of the independent public accountants of
PGFC, including the expenses relating to any special audits or "cold comfort"
letters required by or incident to such performance and compliance. Registration
Expenses shall specifically exclude underwriting discounts and commissions
relating to the Shares, the fees and disbursements of counsel representing the
Shareholder, the fees and disbursements of counsel representing any underwriters
relating to the Shares, transfer taxes, if any, relating to the sale or
disposition of Shares by the Shareholder and any other expenses not included in
the preceding sentence.
"SEC" shall mean the Securities and Exchange Commission or any
successor entity.
"Securities Act" shall mean the Securities Act of 1933, as
amended from time to time.
"Shares" shall mean the Common Shares now or hereafter issued
to the Shareholder pursuant to the Merger Agreement, and any additional Common
Shares that may be received as stock dividends payable with respect to the
Shares or otherwise received in connection with any stock split, exchange,
conversion or recapitalization.
2. Registration Under the Securities Act.
(a) Registration. Subject to Section 6(b) below and
provided the Shareholder have fulfilled their obligations under Section 4
hereof, PGFC shall file a registration statement on Form S-3, or any applicable
form promulgated by the SEC for which PGFC is eligible (including any amendments
thereto, the "Registration Statement"), relating to the sale of all of the
Shares within thirty (30) days following receipt of a written request, and PGFC
shall use its best efforts to cause such Registration Statement to be declared
effective by the SEC as soon as practicable thereafter. Subject to Section 6(b)
below, PGFC agrees to use its best efforts to keep the Registration Statement
continuously effective (the "Effectiveness Period") pursuant to Rule 415
promulgated under the Securities Act (and to include therein a prospectus at all
times meeting the requirements of the Securities Act) until the earlier of (i)
two years from the date of effectiveness of the Registration Statement, or (ii)
the expiration of the holding period applicable to the Shares issued to the
Shareholder in the Merger pursuant to Rule 144(k), or any successor provision,
promulgated under the Securities Act, as such provision may be amended from time
to time.
(b) Expenses. PGFC shall pay all Registration
Expenses in connection with a registration pursuant to this Agreement. The
Shareholder shall pay all underwriting discounts and commissions relating to the
Shares, the fees and disbursements of counsel representing the Shareholder, the
fees and disbursements of counsel representing any underwriters relating to
Shares, transfer taxes, if any, relating to the sale or disposition of Shares by
the Shareholder and any other expenses of the Shareholder not included in the
definition of Registration Expenses.
(c) Subsequent Shelf Registration. If the Initial
Shelf Registration or any Subsequent Shelf Registration ceases to be effective
for any reasons at any time during the Effectiveness Period (other than because
of the sale of all of the securities registered thereunder), PGFC shall use its
best efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within 30 days of such cessation
of effectiveness amend the Shelf Registration in a manner to obtain the
withdrawal of the order suspending the effectiveness thereof, or file an
additional "shelf" Registration Statement pursuant to Rule 415 covering all of
the Shares (a "Subsequent Shelf Registration"). If a Subsequent Shelf
Registration is filed, PGFC shall use its best efforts to cause the Subsequent
Shelf Registration to be declared effective as soon as practicable after such
filing and to keep such Subsequent Shelf Registration continuously effective
during the Effectiveness Period. As used herein, the term "Shelf Registration"
means the Initial Shelf Registration and any Subsequent Shelf Registration.
3. Registration Procedures. In connection with the obligations
of PGFC under Section 2 hereof, PGFC shall:
(a) prepare and file with the SEC, within the time
period set forth in Section 2 hereof, and use its best efforts to have declared
effective by the SEC, the Registration Statement, which shall (i) be available
for public resale of the Shares by the Shareholder; and (ii) comply as to form
in all material respects with the requirements of the applicable form and
include all financial statements required by the SEC to be filed therewith;
(b) (i) prepare and file with the SEC such amendments
to the Registration Statement as may be necessary to keep it effective for the
applicable period; (ii) cause any Prospectus to be amended or supplemented as
required and to be filed as required by Rule 424 or any similar rule that may be
adopted under the Securities Act; and (iii) respond as promptly as practicable
to any comments received from the SEC with respect to the Registration Statement
or any amendment thereto;
(c) furnish to the Shareholder, upon request and
without charge, as many copies of any Registration Statement, preliminary
Prospectus or Prospectus and any amendment or supplement thereto as the
Shareholder may reasonably request in order to facilitate the public sale or
other disposition of the Shares;
(d) use its best efforts to register or qualify the
Shares under all applicable state securities or blue sky laws of such
jurisdictions in the United States and its territories and possessions as the
Shareholder may reasonably request in writing and keep such registration or
qualification effective during the period the Registration Statement is required
to be kept effective; provided, however, that in connection therewith, PGFC
shall not be required to (i) qualify as a foreign corporation to do business or
to register as a broker or dealer in any such jurisdiction where it would not
otherwise be required to qualify or register but for this section 3(d), or (ii)
subject itself to taxation in any such jurisdiction with respect to such
registration or qualification;
(e) notify the Shareholder promptly and, if requested
by the Shareholder, confirm in writing, (i) when the Registration Statement and
any post-effective amendments thereto have become effective, (ii) when any
amendment or supplement to a Prospectus has been filed with the SEC, (iii) of
the issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of the Registration Statement or any part thereof
or the initiation of any proceedings for that purpose, (iv) if PGFC receives any
notification with respect to the suspension of the qualification of the Shares
for offer or sale in any jurisdiction or the initiation of any proceeding for
such purpose, and (v) of the happening of any event during the period the
Registration Statement is effective as a result of which (A) the Registration
Statement contains any untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading or (B) a Prospectus as then amended or supplemented
contains any untrue statement of a material fact or omits to state any material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(f) use best efforts to obtain the withdrawal of any
order suspending the effectiveness of the Registration Statement by the SEC or
any state securities authority as promptly as possible;
(g) furnish to the Shareholder upon request, without
charge, at least one conformed copy of the Registration Statement and any
post-effective amendment thereto (without documents incorporated therein by
reference or exhibits thereto); and
(h) cooperate with the Shareholder to facilitate the
timely preparation and delivery of certificates representing Shares to be sold
and not bearing any Securities Act legend and enable certificates for such
Shares to be issued for such numbers of Shares and registered in such names as
the Shareholder may reasonably request.
4. Certain Agreements of the Shareholder. The Shareholder
agrees to furnish to PGFC in writing such information regarding the Shareholder
and his proposed distribution of Shares as PGFC may from time to time reasonably
request in connection with the preparation of the Registration Statement or the
registration or qualification of the Shares under state securities or blue sky
laws.
5. Indemnification, Contribution.
(a) Indemnification by PGFC. PGFC agrees to indemnify
and hold harmless the Shareholder as follows:
(i) subject to the limitation set forth in
Section 5(c), against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to which the Shareholder may become
subject under the Securities Act or otherwise (A) that arise out of or
are based upon any untrue or alleged untrue statement of a material
fact contained in the Registration Statement or any amendment thereto,
or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading or (B) that arise out of or are based upon any
untrue statement or alleged untrue statement of material fact contained
in any Prospectus or any amendment or supplement thereto, or, the
omission or alleged omission to state therein a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) subject to the limitation set forth in
Section 5(c), against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or alleged untrue
statement, any omission or alleged omission, if such settlement is
effected with the written consent of PGFC; and
(iii) subject to the limitations set forth
in Section 5(c), against any and all expense (including reasonable fees
and disbursements of counsel) reasonably incurred in investigating,
preparing or defending against any litigation, investigation or
proceeding by any governmental agency or body, commenced or threatened,
in each case whether or not a party, or any claim whatsoever based upon
any such untrue statement or alleged untrue statement, omission or
alleged omission that relates to the sale by the Shareholder of Shares
under the Registration Statement, to the extent that any such expense
is not paid under subparagraph (i) above or (d) below;
provided, however, that the indemnity provided pursuant to this Section 5(a)
shall not apply to the Shareholder with respect to any loss, liability, claim,
damage or expense that arises out of or is based solely upon (1) any untrue
statement or alleged untrue statement or omission or alleged omission made in
reliance upon and in conformity with written information furnished to PGFC by
the Shareholders with respect to the Shareholders use in the Registration
Statement or any amendment thereto or a Prospectus or any amendment or
supplement thereto or (2) trades made by the Shareholder in violation of section
6(a) below or (3) trades made by the Shareholder in violation of the prospectus
delivery requirements of Section 5(b) of the Securities Act. This indemnity in
Section 5(a) is in addition to any liability which PGFC may otherwise have. PGFC
will also indemnify any selling brokers, dealer managers, and similar securities
industry professionals participating in the distribution and their officers and
directors and each person who controls such persons or entities (within the
meaning of the Securities Act) to the same extent as provided above with respect
to the indemnification of the Shareholders of registrable securities under the
Registration Statement.
(b) Indemnification by the Shareholder. The
Shareholder agrees to indemnify and hold harmless PGFC, each director of PGFC,
each officer of PGFC who signed the Registration Statement and each other
Person, if any, who controls PGFC within the meaning of Section 15 of the
Securities Act, to the same extent as the indemnity contained in Section 5(a)
hereof, but only insofar as such loss, liability, claim damage or expense arises
out of or is based solely upon (i) any untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration Statement or
any amendment thereto or a Prospectus or any amendment or supplement thereto in
reliance upon and in conformity with written information furnished to PGFC by
the Shareholder with respect to the Shareholder for use therein or (ii) trades
made by the Shareholder in violation of Section 6(a) below or (iii) trades made
by the Shareholder in violation of the prospectus delivery requirements of
Section 5(b) of the Securities Act or (iv) any sale of Shares by the Shareholder
at any time prohibited by this Agreement; provided, that, in the case of the
Shareholder's obligation set forth in this Section 5(b) relating to Section
5(a)(ii) above, such settlement must be effected with the written consent of the
Shareholder.
(c) Conduct of Indemnification Proceedings. The
indemnified party shall give prompt notice to the indemnifying party of any
action or proceeding commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party (i) shall not
relieve it from any liability that it may have under the indemnity agreement
provided in Section 5(a) or (b) above, unless and to the extent it did not
otherwise learn of such action and the lack of notice by the indemnified party
prejudices the indemnifying party or results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) shall not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided under Section 5(a) or
(b) above. After receipt of such notice, the indemnifying party shall be
entitled to participate in and, at its option, jointly with any other
indemnifying party so notified, to assume the defense of such action or
proceeding at such indemnifying party's own expense with counsel chosen by such
indemnifying party; provided, however, that, if the defendants in any such
action or proceeding include both an indemnified party and an indemnifying party
and the indemnified party reasonably determines, upon advice of counsel, that a
conflict of interest exists or that there may be legal defenses available to it
or other indemnified parties that are different from or in addition to those
available to the indemnifying parties, then the indemnified parties shall be
entitled to counsel (which shall be limited to a single law firm for all
indemnified parties) the reasonable fees and expenses of which shall be paid by
the indemnifying parties. If the indemnifying party does not assume the defense
of any such action or proceeding, after having received the notice referred to
in the first sentence of this paragraph, the indemnifying parties will pay the
reasonable fees and expenses of counsel (which will be limited to a single law
firm for all indemnified parties) for the indemnified parties. In such event,
however, no indemnifying party will be liable for any settlement effected
without the prior written consent of such indemnifying party. If one or more of
the indemnifying parties assumes the defense of any such action or proceeding in
accordance with this paragraph, such indemnifying party shall not be liable for
any fees and expenses of counsel for the indemnified parties incurred thereafter
in connection with such action or proceeding except as set forth in the proviso
in the second sentence of this Section 5(c).
(d) Contribution.
(i) In order to provide for just and
equitable contribution in circumstances in which the indemnity
agreement provided for in this Section 5 is for any reason held to be
unenforceable although applicable in accordance with its terms, the
indemnifying parties shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by
such indemnity agreement incurred by the indemnified party, in such
proportion as is appropriate to reflect the relative fault of and
benefits to each indemnifying party and each indemnified party in
connection with the statements or omissions that resulted in such
losses, claim, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits to the
indemnifying parties and indemnified parties shall be determined by
reference to, among other things, the total proceeds received by each
indemnifying party and indemnified party in connection with the
offering to which such losses, claims, damages, liabilities or expenses
relate. The relative fault of each indemnifying party and indemnified
party shall be determined by reference to, among other things, whether
the action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact, has been made by, or relates to information supplied by,
such indemnifying party or indemnified party, and the parties' relative
intent, access to information and opportunity to correct or prevent
such action.
(ii) The parties hereto agree that it would
not be just or equitable if contribution pursuant to this Section 5(d)
were determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable considerations
referred to in Section 5(d)(i) above.
(iii) Notwithstanding the foregoing, no
Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution
from any Person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 5(d), each director of
PGFC, each officer of PGFC who signed the Registration Statement and
each Person, if any, who controls PGFC within the meaning of Section 15
of the Securities Act shall have the same rights to contribution as
PGFC.
(e) Notwithstanding any term or condition to the
contrary, the liability of the Shareholder pursuant to this Section 5 shall be
limited to the gross proceeds received by the Shareholder as a result of the
sale giving rise to the liability.
(f) The obligations of PGFC and the Shareholder under
this Section 5 shall survive the completion of any offering of the Shares
pursuant to the Registration Statement.
6. Suspension of Registration Requirement.
(a) Immediately prior to any anticipated sale of the
Shares subject to the Registration Statement, the Shareholder shall notify PGFC
in writing of the anticipated sale of the Shares. The Shareholder agrees that he
will not effect any sales of Shares pursuant to the Registration Statement after
the Shareholder has received notice from PGFC to suspend sales as a result of
the occurrence or existence of any Suspension Event (as defined in section 6(b)
below) until PGFC provides written notice to the Shareholder that all Suspension
Events have ceased to exist. The Shareholder agrees that he will not effect any
sales of Shares pursuant to the Registration Statement after the Shareholder has
received notice from PGFC to suspend sales because the Registration Statement,
any Prospectus or any supplement thereto contains an untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, until PGFC notifies the Shareholder that the misstatement
or omission has been corrected. PGFC agrees that the period of time during which
the Registration Statement must be kept effective pursuant to clause (i) of
Section 2(a) shall be extended by a period which is not less than the aggregate
number of days during which any Suspension Event is in effect.
(b) Notwithstanding anything to the contrary set
forth in this Agreement, PGFC's obligation to file the Registration Statement
and make any filings with any state securities authority, to use its best
efforts to cause the Registration Statement or any state securities filings to
become effective or to remain effective, or to amend or supplement the
Registration Statement or any state securities filings shall be suspended in the
event of and during a Suspension Event. A "Suspension Event" shall exist at such
times as circumstances exist that PGFC determines in good faith on advice of
counsel, make it impractical or inadvisable for PGFC to file, amend or
supplement the Registration Statement or such filings or to cause the
Registration Statement or such filings to become effective or to remain
effective or for the sale of Shares to occur under the Registration Statement
(such circumstances to include, without limitation, (i) pending negotiations
relating to, or consummation of, a significant acquisition, corporate
reorganization, material proposed financing, the offer or sale of securities, or
other similar transaction involving PGFC, or (ii) the occurrence of some other
event (X) where any of the foregoing would require disclosure under applicable
securities laws of material information in the Registration Statement (or any
other document incorporated into the Registration Statement by reference) or
such state securities filings and (Y) as to which PGFC has a bona fide business
purpose for preserving confidentiality or which renders PGFC unable to comply
with SEC requirements). PGFC shall notify the Shareholder promptly after any
Suspension Event occurs or ceases to exist. Suspension of PGFC's obligations
pursuant to this Section 6(b) shall continue for so long as a Suspension Event
or its effect is continuing.
(c) Notwithstanding anything to the contrary in this
Agreement, the Shareholders may sell their Shares at any time, regardless of the
existence of a Suspension Event, so long as the Shareholders comply with Rule
144 in effecting any sale of the Shares.
7. Miscellaneous.
(a) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified, supplemented or waived, nor may consent to departures therefrom be
given, without the written consent of PGFC and the Shareholder.
(b) Notices. Unless otherwise provided, all notices
or other communications required or permitted to be given to the parties hereto
shall be in writing and shall, be deemed to have been given as if personally
delivered (including personal delivery by facsimile, provided that the sender
receives telephonic or electronic confirmation that the facsimile was received
by the recipient), or three (3) days after mailing by certified or registered
mad, return receipt requested, first class postage prepaid, addressed as shown
under the Notice provision of the Merger Agreement (or at such other address as
the addressed party may have substituted by notice pursuant to this Section
4.1).
(c) Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the successors and assigns of PGFC.
This Agreement and the registration rights granted hereunder shall inure to the
benefit of and be binding upon the legal representatives and heirs of the
Shareholder if he becomes disabled or deceased, and may be assigned by the
Shareholder to any immediate family member of the Shareholder (including any
great grandchild or grandchild) or a trust or limited partnership established by
the Shareholder, in any such case in connection with an assignment of Common
Shares by the Shareholder to such family member, trust or limited partnership by
gift or for estate planning purposes, but otherwise may not be assigned by the
Shareholder. Notwithstanding the foregoing, no purported assignment by the
Shareholder shall be valid unless the assignee agrees to be bound by the
provisions of this Agreement.
(d) Counterparts. This Agreement may be executed in
any number of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(e) Headings and Interpretation. The headings in this
Agreement are for convenience of reference only and shall not limit or otherwise
affect the meaning hereof. In construing the meaning of this Agreement, no party
hereto shall be deemed the drafter of this Agreement and this Agreement shall be
construed according to its fair meaning and not strictly against any person as
the drafter hereof.
(f) Governing Law. This Agreement shall be governed
by and construed in accordance with the internal laws of the State of New Jersey
without giving effect to the conflicts of law provisions thereof.
(g) Entire Agreement. This Agreement is intended by
the parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. This Agreement
supersedes all prior oral and written agreements and understandings and all
contemporaneous written agreements and understandings between the parties with
respect to such subject matter.
(h) This Agreement shall terminate and be of no
further force and effect upon the earlier of the sale of all of the Shares by
the Shareholders or the expiration of the restrictions on resale resulting from
Rule 145 under the Securities Act.
IN WITNESS WHEREOF, PGFC and PGB have caused this Agreement to
be executed by their duly authorized officers and Weichert has executed this
Agreement in his individual capacity, all as of the day and year first above
written.
ATTEST: PEAPACK-GLADSTONE
FINANCIAL CORPORATION
By: _________________________________ By:_________________________________
, Secretary Xxxxx X. Xxxxxx, President
_________________________________
Xxxxx X. Weichert
