APPENDIX A
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
AGREEMENT AND PLAN OF MERGER
dated as of September 15, 1999
between
XXXXXX UNITED BANCORP
and
DIME BANCORP, INC.
------------------------------------------------------
As Amended and Restated
on
December 27, 1999
------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
RECITALS.................................................... A-1
A. Dime.............................................. A-1
X. Xxxxxx........................................... A-1
C. The Merger........................................ A-1
D. Stock Option Agreements........................... A-1
E. Intention of the Parties......................... A-1
F. Approvals........................................ A-1
G. Subsidiary Bank................................... A-1
ARTICLE I
THE MERGER; EFFECTIVE TIME; CLOSING
1.1 The Merger....................................... A-2
1.2 Effective Time................................... A-2
1.3 Closing.......................................... A-2
ARTICLE II
GOVERNING DOCUMENTS OF THE SURVIVING CORPORATION
2.1 Certificate of Incorporation of the Surviving
Corporation........................................... A-2
2.2 By-laws of the Surviving Corporation............. A-2
ARTICLE III
CORPORATE GOVERNANCE OF THE SURVIVING CORPORATION
3.1 Survival of Article III.......................... A-3
3.2 Board of Directors of Surviving Corporation...... A-3
(a) Composition.................................. A-3
(b) Nomination of Directors...................... A-3
(c) Committees of the Board of Directors......... A-3
3.3 Officers of the Surviving Corporation............ A-3
(a) Composition.................................. A-3
(b) Succession................................... A-3
(c) Employment Agreements........................ A-3
3.4 Modifications to Corporate Governance
Provisions............................................ A-4
ARTICLE IV
CONVERSION OR CANCELLATION AND EXCHANGE OF SHARES
4.1 Conversion or Cancellation of Shares............. A-4
4.2 Exchange of Old Certificates for New
Certificates..................................... A-4
(a) Appointment of Exchange Agent................ A-4
(b) Exchange Procedures.......................... A-5
(c) Fractional Shares............................ A-5
(d) Transfers.................................... A-5
(e) No Liability................................. A-5
4.3 Xxxxxx Options and Warrants...................... A-6
4.4 Dime Options and Warrants........................ A-6
Page
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.1 Disclosure Schedules............................. A-6
5.2 Standard......................................... A-7
5.3 Representations and Warranties of Dime and
Xxxxxx........................................... A-7
(a) Recitals True............................... A-7
(b) Corporate Organization and Qualification.... A-7
(c) Subsidiaries................................ A-7
(d) Capital Stock............................... A-7
(e) Corporate Authority......................... A-9
(f) Governmental Filings; No Violations......... A-9
(g) Reports and Financial Statements............ A-10
(h) Asset Classification......................... A-11
(i) Absence of Certain Events and Changes....... A-11
(j) Properties.................................. A-11
(k) Compliance with Laws........................ A-11
(l) Litigation.................................. A-12
(m) Taxes........................................ A-12
(n) Insurance................................... A-12
(o) Labor Matters............................... A-13
(p) Employee Benefits........................... A-13
(q) Environmental Matters....................... A-14
(r) Risk Management Instruments................. A-15
(s) Material Agreements......................... A-16
(t) Knowledge as to Conditions.................. A-16
(u) Year 2000 Compliance........................ A-16
(v) Brokers and Finders......................... A-16
ARTICLE VI
COVENANTS
6.1 Conduct of Business Pending the Effective Time... A-17
6.2 Dividends........................................ A-18
6.3 Acquisition Proposals............................ A-18
6.4 Stockholder Approvals; Election of Directors..... A-19
6.5 Filings; Other Actions........................... A-19
6.6 Information Supplied............................. A-20
6.7 Accountants' Letters............................. A-20
6.8 Access........................................... A-20
6.9 Notification of Certain Matters.................. A-21
6.10 Publicity........................................ A-21
6.11 Benefit Plans.................................... A-21
6.12 Expenses......................................... A-21
6.13 Indemnification; Directors' and Officers'
Insurance............................................. A-21
6.14 Antitakeover Provisions.......................... A-22
6.15 Affiliate Agreements............................. A-22
6.16 Stock Exchange Listing........................... A-23
6.17 Efforts to Consummate............................ A-23
A-ii
Page
6.18 Reports.......................................... A-23
6.19 Accounting and Tax Treatment..................... A-23
6.20 Assumptions...................................... A-23
6.21 Bank Combination and Governance.................. A-23
ARTICLE VII
CONDITIONS
7.1 Conditions to Each Party's Obligation to Effect
the Merger....................................... A-24
(a) Stockholder Approval........................ A-24
(b) Governmental and Regulatory Consents......... A-24
(c) Third Party Consents........................ A-24
(d) Litigation................................... A-24
(e) Registration Statement...................... A-24
(f) Listing..................................... A-24
(g) Accountants' Pooling Letter................. A-24
(h) Employment Agreements........................ A-24
7.2 Conditions to Obligation of Xxxxxx............... A-24
(a) Representations and Warranties.............. A-24
(b) Performance of Obligations of Dime........... A-25
(c) Opinion of Counsel.......................... A-25
(d) Opinion of Tax Counsel....................... A-25
(e) Accountants' Letters........................ A-25
7.3 Conditions to Obligation of Dime................. A-25
(a) Representations and Warranties.............. A-25
(b) Performance of Obligations of Xxxxxx......... A-25
(c) Opinion of Tax Counsel...................... A-26
(d) Accountants' Letters......................... A-26
ARTICLE VIII
TERMINATION
8.1 Termination by Mutual Consent.................... A-26
8.2 Termination by Xxxxxx Xxxx or Xxxxxx............. A-26
8.3 Termination by Xxxxxx............................ A-26
8.4 Termination by Dime.............................. A-26
8.5 Effect of Termination and Abandonment............ A-27
ARTICLE IX
MISCELLANEOUS
9.1 Survival......................................... A-27
9.2 Modification or Amendment........................ A-27
9.3 Waiver of Conditions............................. A-27
9.4 Counterparts and Facsimile....................... A-27
9.5 Governing Law.................................... A-27
9.6 Notices.......................................... A-27
9.7 Entire Agreement, Etc............................ A-28
9.8 Definition of "subsidiary"; Covenants with
Respect to Subsidiaries............................... A-28
A-iii
Page
9.9 Captions......................................... A-29
9.10 Severability..................................... A-29
9.11 No Third Party Beneficiaries..................... A-29
ANNEXES
1. Form of Amendments to Certificate of Incorporation
2. Form of Amendments to By-laws
Understanding regarding Committees of Board of Surviving
3. Corporation
4(a). Form of Xxxxxx Affiliate Agreement
4(b). Form of Dime Affiliate Agreement
5. Senior Executive Officers of Surviving Corporation
A-iv
INDEX OF DEFINED TERMS
Location of
Term Definition
---- -----------
Acquisition Proposal........................................ 6.3
Affiliates.................................................. 6.15
Agreement................................................... Preamble
Antitakeover Provisions..................................... 6.14
Asset Classification........................................ 5.3(h)
BHCA........................................................ Recital B
Business.................................................... 5.3(q)(1)
By-laws..................................................... 2.2
Certificate of Incorporation................................ 2.1
Certificates of Merger...................................... 1.2(a)
Closing..................................................... 1.3
Closing Date................................................ 1.3
Compensation Plans.......................................... 5.3(p)(1)
Confidentiality Agreements.................................. 6.8
Contracts................................................... 5.3(f)(2)
Costs....................................................... 6.13
DGCL........................................................ 1.1
Dime........................................................ Preamble
Dime Common Stock........................................... Recital A
Dime Meeting................................................ 6.4
Dime Option................................................. 4.4
Dime Preferred Stock........................................ Recital A
Dime Stock Option Agreement................................. Recital D
Dime Stock Plans............................................ 5.3(d)(1)
Disclosure Schedule......................................... 5.1
Effective Time.............................................. 1.2(a)
Employees................................................... 5.3(p)(1)
Employment Agreement........................................ 3.3(c)
Environmental Law........................................... 5.3(q)(1)
ERISA....................................................... 5.3(p)(1)
ERISA Affiliate............................................. 5.3(p)(4)
Exception Shares............................................ 4.1(b)
Exchange Act................................................ 5.3(f)(1)
Exchange Agent.............................................. 4.2(a)
Exchange Ratio.............................................. 4.1(a)
FDIA........................................................ 5.3(c)
FDIC........................................................ 5.3(g)(1)
Federal Reserve............................................. 5.3(k)(3)
FHLB........................................................ 5.3(g)(1)
A-v
Location of
Term Definition
---- -----------
Financial Statements........................................ 5.3(g)(4)
Former Dime Directors....................................... 3.2(a)
Former Xxxxxx Directors..................................... 3.2(a)
Former Xxxxxx Employees..................................... 6.11(a)
Former Dime Employees....................................... 6.11(a)
Governmental Entity......................................... 5.3(f)(1)
Hazardous Substances........................................ 5.3(q)(1)
HOLA........................................................ Recital A
Xxxxxx...................................................... Preamble
Xxxxxx Common Stock......................................... Recital B
Xxxxxx Meeting.............................................. 6.4
Xxxxxx Option............................................... 4.3
Xxxxxx Preferred Stock...................................... Recital B
Xxxxxx Stock Option Agreement............................... Recital X
Xxxxxx Stock Plans.......................................... 5.3(d)(2)
Indemnified Parties......................................... 6.13
Internal Revenue Code....................................... Recital E
Joint Proxy Statement....................................... 6.5
Liens....................................................... 5.3(d)(1)
Material Adverse Effect..................................... 5.1(b)
Merger...................................................... Recital C
NASD........................................................ 5.3(f)
New Certificate............................................. 4.1(d)
NJBCA....................................................... 1.1
NYSE........................................................ 5.3(f)
Old Certificate............................................. 4.1(d)
OTS......................................................... 5.3(g)(1)
PCBs........................................................ 5.3(q)(1)
Pending Transactions........................................ 5.3(t)(2)
Pension Plan................................................ 5.3(p)(3)
Person...................................................... 6.1(c)
Plans....................................................... 5.3(p)(3)
Previously Disclosed........................................ 5.1(c)
Registration Statement...................................... 6.5
Reports..................................................... 5.3(g)(2)
Representatives............................................. 6.8
SEC......................................................... 5.3(g)(1)
Securities Act.............................................. 5.3(f)(1)
Securities Laws............................................. 5.3(g)(2)
Stock Option Agreements..................................... Recital D
Subject Property............................................ 5.3(q)(1)
A-vi
Location of
Term Definition
---- -----------
subsidiary.................................................. 9.8(a)
Subsidiary Bank............................................. Recital G
Surviving Corporation....................................... Recital C
Surviving Corporation Common Stock.......................... 4.1(a)
Tax......................................................... 5.3(m)
Termination Date............................................ 3.1
Year 2000 Compliant......................................... 5.3(u)(3)
A-vii
AGREEMENT AND PLAN OF MERGER, dated as of September 15, 1999 (this
"Agreement"), between Xxxxxx United Bancorp ("Xxxxxx") and Dime Bancorp, Inc.
("Dime") (as amended and restated on December 27, 1999).
RECITALS
A. Dime. Dime has been duly incorporated and is an existing corporation
in good standing under the laws of the State of Delaware, with its principal
executive offices located in New York, New York. As of the date hereof, Dime has
350 million authorized shares of common stock, par value $0.01 per share ("Dime
Common Stock"), of which not more than 111,918,002 shares were outstanding as of
August 31, 1999, and 40 million authorized shares of preferred stock, par value
$0.01 per share ("Dime Preferred Stock"), none of which is outstanding as of the
date hereof (no other class or series of capital stock being authorized). Dime
is a savings and loan holding company registered under the Home Owners' Loan Act
of 1933, as amended ("HOLA").
X. Xxxxxx. Xxxxxx has been duly incorporated and is an existing
corporation in good standing under the laws of the State of New Jersey, with its
principal executive offices located in Mahwah, New Jersey. As of the date
hereof, Xxxxxx has 100 million authorized shares of common stock, no par value
("Xxxxxx Common Stock"), of which not more than 40,899,905 shares are
outstanding as of the date hereof, and 25 million authorized shares of preferred
stock, no par value ("Xxxxxx Preferred Stock"), none of which is outstanding as
of the date hereof (no other class or series of capital stock being authorized).
Xxxxxx is a bank holding company registered under the Bank Holding Company Act
of 1956, as amended (the "BHCA").
C. The Merger. At the Effective Time (as defined in Section 1.2), the
parties to this Agreement intend to effect the merger (the "Merger") of Xxxxxx
with and into Dime, with Dime the surviving corporation of the Merger. At and
after the Effective Time, Dime, as the surviving corporation in the Merger, is
referred to herein as the "Surviving Corporation". The name of the Surviving
Corporation shall be "Dime United Bancorp, Inc."
D. Stock Option Agreements. As an inducement to and condition of Xxxxxx'x
willingness to enter into this Agreement and the Xxxxxx Stock Option Agreement
(as defined in the following sentence), Dime will grant to Xxxxxx an option
pursuant to a Stock Option Agreement (the "Dime Stock Option Agreement"). As an
inducement to and condition of Xxxx's willingness to enter into this Agreement
and the Dime Stock Option Agreement, Xxxxxx will xxxxx to Dime an option
pursuant to a Stock Option Agreement (the "Xxxxxx Stock Option Agreement" and,
together with the Dime Stock Option Agreement, the "Stock Option Agreements").
The Stock Option Agreements will be entered into immediately following the
execution and delivery hereof.
E. Intention of the Parties. It is the intention of the parties to this
Agreement that the Merger (a) shall be accounted for as a "pooling of interests"
under generally accepted accounting principles and (b) shall qualify as a tax
free reorganization under Section 368(a) of the Internal Revenue Code of 1986,
as amended (the "Internal Revenue Code").
F. Approvals. The Boards of Directors of Dime and Xxxxxx (at meetings
duly called and held) have determined that this Agreement and the transactions
contemplated hereby are in the best interests of Dime and Xxxxxx, respectively,
and their respective stockholders and have approved this Agreement and the Stock
Option Agreements.
G. Subsidiary Bank. It is the intention of the parties that the Surviving
Corporation shall be a bank holding company registered pursuant to the BHCA and
that the operation of the federal savings bank subsidiary of Dime and the New
Jersey state-chartered commercial bank subsidiary of Xxxxxx shall be combined,
in a manner to be determined, so that the primary depository institution
subsidiary of the Surviving Corporation is a New Jersey state-chartered
commercial bank (the "Subsidiary Bank"). It is the intention of the parties that
the Board of Directors of the Surviving Corporation and the Board of Directors
of the Subsidiary Bank shall be the same, until otherwise modified, and that the
charter and by-
laws of the Subsidiary Bank shall contain those provisions (or other provisions
of similar effect) discussed in Article III hereof with respect to the Surviving
Corporation.
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements set forth herein, the
parties hereto agree as follows:
ARTICLE I
THE MERGER: EFFECTIVE TIME; CLOSING
1.1 The Merger. On the terms, and subject to the conditions, of this
Agreement, at the Effective Time, Xxxxxx shall merge with and into Dime, and the
separate corporate existence of Xxxxxx shall thereupon cease. The Surviving
Corporation shall continue to be governed by the laws of the State of Delaware.
The Merger shall have the effects specified in the Delaware General Corporation
Law (the "DGCL") and the New Jersey Business Corporation Act (the "NJBCA").
1.2 Effective Time. (a) Subject to the conditions of this Agreement, the
parties to this Agreement will cause certificates of merger to be executed,
acknowledged and filed with the Secretary of State of the State of Delaware as
provided in Section 252 of the DGCL, and executed, acknowledged and filed with
the Secretary of State of the State of New Jersey as provided in Sections 14A:
10-7 and 14A: 10-4.1 of the NJBCA (collectively, the "Certificates of Merger").
The Merger shall become effective at such time as a Certificate of Merger has
been filed with the Secretary of State of the State of Delaware in accordance
with the provisions of Section 252 of the DGCL and a Certificate of Merger has
been filed with the Secretary of State of the State of New Jersey in accordance
with the provisions of Sections 14A: 10-7 and 14A: 10-4.1 of the NJBCA, or at
such other time as may be specified in the Certificates of Merger in accordance
with applicable law. The date and time when the Merger shall become effective is
herein referred to as the "Effective Time".
(b) Dime and Xxxxxx each will use reasonable efforts to cause the
Effective Time to occur on the fifth business day after the date of satisfaction
or waiver of the last of the conditions specified in Sections 7.1(a) and (b) of
this Agreement has occurred. Notwithstanding anything to the contrary in this
Section 1.2, Xxxx and Xxxxxx may cause the Effective Time to occur on such
earlier or later day following the satisfaction or waiver of such conditions as
they may agree in writing, consistent with the provisions of the DGCL, the NJBCA
and other applicable law.
1.3 Closing. The closing of the Merger (the "Closing") shall take place
at the offices of Xxxxxxxx & Xxxxxxxx, New York, New York, at 10:00 a.m. on the
date when the Effective Time is to occur or at such other place or time as Dime
and Xxxxxx shall agree. The date upon which the Closing shall occur is herein
referred to as the "Closing Date".
ARTICLE II
GOVERNING DOCUMENTS OF THE SURVIVING CORPORATION
2.1 Certificate of Incorporation of the Surviving Corporation. At the
Effective Time, the certificate of incorporation of Dime, as then in effect,
shall by virtue of the Merger be amended as set forth in Annex 1; such
certificate of incorporation, as so amended, shall be the certificate of
incorporation of the Surviving Corporation (the "Certificate of Incorporation"),
until duly amended in accordance with the terms thereof and the DGCL.
2.2 By-laws of the Surviving Corporation. At the Effective Time, the
by-laws of Dime, as then in effect, shall by virtue of the Merger be amended as
set forth in Annex 2, and such by-laws, as so amended, shall be the by-laws of
the Surviving Corporation (the "By-laws"), until duly amended in accordance with
the terms thereof, the Certificate of Incorporation and the DGCL.
A-2
ARTICLE III
CORPORATE GOVERNANCE OF THE SURVIVING CORPORATION
3.1 Survival of Article III. Notwithstanding any other provision in this
Agreement, the provisions of this Article III shall survive the Effective Time
and remain continuously in effect until December 31, 2002 (the "Termination
Date"), on which date the provisions of this Article III shall terminate. This
Section 3.1 shall not affect the term of any Employment Agreements referred to
in this Article III.
3.2 Board of Directors of Surviving Corporation.
(a) Composition. The Board of Directors will consist of 25 members, 13 of
whom shall be designated by Dime ("Former Dime Directors") and 12 of whom shall
be designated by Xxxxxx ("Former Xxxxxx Directors"), in each case, such
designation to occur prior to the Closing Date. Dime will designate four
directors, five directors and four directors to classes one, two and three,
respectively, of directors of the Surviving Corporation and Xxxxxx will
designate four directors to each of the three classes of directors of the
Surviving Corporation. The current Chairman and Chief Executive Officer of Dime,
Xx. Xxxxxxxx X. Xxxx, will be a member of the Board of Directors and will serve
as its Chairman. The current Chairman and Chief Executive Officer of Xxxxxx, Xx.
Xxxxxxx X. Xxxxxxx, will be a member of the Board of Directors. As set forth in
Section 6.4 and Annex 2 to this Agreement, prior to the Effective Time, the
Board of Directors of Dime will adopt resolutions, effective at the Effective
Time: (1) electing such persons designated in accordance with this Section
3.2(a) as directors of the Surviving Corporation and (2) amending the By-laws as
set forth in Annex 2.
(b) Nomination of Directors. As set forth in Annex 1, certain provisions
regarding qualifications for nomination of directors will be contained in the
Certificate of Incorporation.
(c) Committees of the Board of Directors. Annex 3 to this Agreement sets
forth certain agreements of the parties with regard to committees of the Board
of Directors and their composition. Prior to the Closing Date, Xxxx will
designate the Former Dime Directors who are to be members of each of the
committees set forth in Annex 3 and Xxxxxx will designate the Former Xxxxxx
Directors who are to be members of each of the committees set forth in Annex 3.
Prior to the Effective Time, the Board of Directors of Dime will adopt
resolutions, effective at the Effective Time, to establish the committees set
forth in Annex 3 as committees of the Board of Directors of the Surviving
Corporation and to specify the members and chairpersons of each such committee
as designated pursuant to this Section 3.2(c).
3.3 Officers of the Surviving Corporation.
(a) Composition. In addition to serving as Chairman of the Board of
Directors, Xx. Xxxx shall be Chief Executive Officer of the Surviving
Corporation as of the Effective Time. Xx. Xxxxxxx shall be President and Chief
Operating Officer of the Surviving Corporation as of the Effective Time. Both
Xx. Xxxx and Xx. Xxxxxxx shall serve in the positions described in this Section
3.3(a) until the Termination Date or until otherwise determined in accordance
with the Certificate of Incorporation. The Board of Directors of Dime will adopt
resolutions prior to the Effective Time electing Xx. Xxxx and Xx. Xxxxxxx to the
positions described in this Section 3.3(a) as of the Effective Time. In
addition, the Board of Directors of Dime will adopt resolutions prior to the
Effective Time electing those persons set forth in Annex 5 to the positions
described in Annex 5 as of the Effective Time.
(b) Succession. As set forth in Annex 1, certain provisions regarding the
succession of Xx. Xxxxxxx to the positions of Chairman of the Board of
Directors, Chairman of the Executive Committee of the Board of Directors and
Chief Executive Officer of the Surviving Corporation will be contained in the
Certificate of Incorporation.
(c) Employment Agreements. Dime or its depository institution subsidiary
has entered into an employment agreement with Xx. Xxxx (this agreement, or any
successor agreement, including any amendment thereto, an "Employment Agreement")
and Xxxxxx has entered into an employment agreement (concurrently with or
immediately prior to entering into this Agreement) with Xx. Xxxxxxx (this
agreement, or any successor agreement, including any amendment thereto, also an
"Employment
A-3
Agreement"), each of which will be assumed by the Surviving Corporation. During
the terms of their respective Employment Agreements, Xx. Xxxx and Xx. Xxxxxxx
shall have the respective powers, and perform the respective duties, set forth
in each of their respective Employment Agreements, along with the duties of
their offices as described in this Article III and the Certificate of
Incorporation or By-laws.
3.4 Modifications to Corporate Governance Provisions. As set forth in
Annex 1, provisions regarding certain actions of the Board of Directors of the
Surviving Corporation and the votes required for such actions will be contained
in the Certificate of Incorporation.
ARTICLE IV
CONVERSION OR CANCELLATION AND EXCHANGE OF SHARES
4.1 Conversion or Cancellation of Shares. At the Effective Time, by
virtue of the Merger and without any action on the part of any stockholder of
either Dime or Xxxxxx:
(a) Each share of Dime Common Stock issued and not retired or canceled
immediately prior to the Effective Time, including treasury stock, shall be
combined into 0.60255 (the "Exchange Ratio") of a fully paid and
nonassessable share of common stock, par value $0.01 per share, of the
Surviving Corporation ("Surviving Corporation Common Stock").
(b) Other than Exception Shares, each share of Xxxxxx Common Stock
outstanding immediately prior to the Effective Time shall be converted into
and constitute one fully paid and nonassessable share of Surviving
Corporation Common Stock. Each holder of a certificate representing ads
such shares of Xxxxxx Common Stock shall cease to have any rights with
respect thereto, except that, from and after the Effective Time,
certificates representing Xxxxxx Common Stock, other than Exception Shares,
immediately prior to the Effective Time shall be deemed for all purposes to
represent the number of shares of Surviving Corporation Common Stock into
which they were converted pursuant to this Section. "Exception Shares"
means shares of Xxxxxx Common Stock held by Xxxxxx or any of its
subsidiaries or by Dime or any of its subsidiaries, in each case other than
in a fiduciary capacity or in satisfaction of a debt previously contracted
in good faith.
(c) Each share of Xxxxxx Common Stock constituting an Exception Share
immediately prior to the Effective Time shall be canceled and retired at
the Effective Time and no consideration shall be issued in exchange
therefor.
(d) Holders of certificates formerly representing Xxxxxx Common Stock
shall not be required to exchange such certificates for certificates
representing Surviving Corporation Common Stock, provided, however, that if
an exchange of such certificates is required by law or applicable rule or
regulation, the parties will cause the Surviving Corporation to arrange for
such exchange on a one-share-for-one-share basis. Holders of certificates
representing the Dime Common Stock referred to in Section 4.1(a) ("Old
Certificates") shall exchange such Old Certificates for certificates
representing shares of Surviving Corporation Common Stock ("New
Certificates") in the manner described in Section 4.2.
(e) In the event that, subsequent to the date of this Agreement but
prior to the Effective Time, the shares of Dime Common Stock or Xxxxxx
Common Stock issued and outstanding shall, through a reorganization,
recapitalization, reclassification, stock dividend, stock split, reverse
stock split, or other similar change in the capitalization of Dime or
Xxxxxx, as the case may be, increase or decrease in number or be changed
into or exchanged for a different issue or number of securities, then an
appropriate and proportionate adjustment shall be made to the Exchange
Ratio.
4.2 Exchange of Old Certificates for New Certificates. (a) Appointment of
Exchange Agent. From the Effective Time until the end of the one-year period
following the Effective Time, the Surviving Corporation shall make available to
an exchange agent (which may be a subsidiary bank of the Surviving Corporation)
appointed prior to the Effective Time by Xxxx and Xxxxxx jointly on behalf of
the Surviving Corporation (the "Exchange Agent") New Certificates and cash in
amounts sufficient to allow the
A-4
Exchange Agent to make all deliveries of New Certificates and payments that may
be required in exchange for Old Certificates pursuant to this Article IV. At the
end of such one-year period, any such New Certificates and cash remaining in the
possession of the Exchange Agent (together with any dividends or earnings in
respect thereof) shall be returned to the Surviving Corporation. Any former
holders of Old Certificates who have not theretofore exchanged their Old
Certificates for New Certificates and cash pursuant to this Article IV shall
thereafter be entitled to look exclusively to the Surviving Corporation, and
only as general creditors thereof, for the shares of Surviving Corporation
Common Stock and any cash to which they become entitled upon exchange of their
Old Certificates pursuant to this Article IV.
(b) Exchange Procedures. Promptly after the Effective Time, the Surviving
Corporation shall cause the Exchange Agent to mail or deliver to each person who
was, immediately prior to the Effective Time, a holder of record of Dime Common
Stock, a form (mutually agreed upon by Xxxx and Xxxxxx) of letter of transmittal
containing instructions for use in effecting the surrender of Old Certificates
in exchange for New Certificates and any payments pursuant to this Article IV.
Upon surrender to the Exchange Agent of an Old Certificate for cancellation
together with such letter of transmittal, duly executed and completed in
accordance with the instructions thereto, the holder of such Old Certificate
shall be entitled to receive in exchange therefor a New Certificate representing
the shares of Surviving Corporation Common Stock, and a check in the amount, if
any, to which such holder is entitled pursuant to this Article IV, and the Old
Certificate so surrendered shall forthwith be canceled. No interest will be paid
or will accrue on any amount payable upon surrender of Old Certificates. If any
New Certificate or cash payment is to be issued or made in a name other than
that in which the Old Certificate surrendered in exchange therefor is
registered, it shall be a condition of such exchange that the person requesting
such exchange shall pay any transfer or other taxes required by reason of the
issuance of such New Certificate or the making of such cash payment in a name
other than that of the registered holder of the Old Certificate surrendered, or
shall establish to the satisfaction of the Surviving Corporation that any such
taxes have been paid or are not applicable. An Affiliate (as defined in Section
6.15) of Dime shall not be entitled to receive any New Certificate or payment
pursuant to this Article IV until such Affiliate shall have duly executed and
delivered an appropriate agreement described in Section 6.15.
(c) Fractional Shares. Upon giving effect to the combination and exchange
described in Section 4.1(a), the resulting number of shares of Surviving
Corporation Common Stock of each registered holder of Dime Common Stock shall be
rounded down to the nearest whole number and each such registered holder shall
be entitled to receive from the Surviving Corporation in lieu of any fractional
share of Surviving Corporation Common Stock prior to such rounding down an
amount in cash (without interest) equal to the product obtained by multiplying
(a) the fraction of a share of Surviving Corporation Common Stock to which such
holder would otherwise be entitled and (b) the average of the closing price per
share of Xxxxxx Common Stock for the ten trading days most recently preceding
the Closing Date as reported on the New York Stock Exchange, Inc. (the "NYSE")
Composite Transactions reporting system. Notwithstanding the foregoing,
fractional shares of Surviving Corporation Common Stock that would be issued
into a dividend reinvestment plan, 401(k) plan or other similar stock plan
maintained by Dime prior to the Effective Time shall be issued within such plan
as a fractional share of Surviving Corporation Common Stock at the Effective
Time.
(d) Transfers. At or after the Effective Time, there shall be no
transfers on the stock transfer books of the Surviving Corporation of the shares
of Xxxxxx Common Stock which were outstanding immediately prior to the Effective
Time.
(e) No Liability. In the event that any Old Certificate shall have been
lost, stolen or destroyed, upon the making of an affidavit of that fact by the
person claiming such Old Certificate to be lost, stolen or destroyed and, if
required by the Surviving Corporation, the posting by such person of a bond in
such reasonable amount as the Surviving Corporation may direct as indemnity
against any claim that may be made against it with respect to such Old
Certificate, the Surviving Corporation shall, in exchange for such lost, stolen
or destroyed Old Certificate, issue or cause to be issued the shares of
Surviving Corporation
A-5
Common Stock and pay or cause to be paid the amounts, if any, deliverable in
respect thereof pursuant to this Article IV.
4.3 Xxxxxx Options and Warrants. At the Effective Time, by virtue of the
Merger and without any action on the part of any holder of any such option or
warrant, each option or warrant granted by Xxxxxx to purchase shares of Xxxxxx
Common Stock (any such option or warrant being referred to as a "Xxxxxx Option")
that is outstanding and unexercised immediately prior thereto shall constitute
an option or warrant, as the case may be, to purchase Shares of Surviving
Corporation Common Stock, on the same terms and conditions as are in effect
immediately prior to the Effective Time.
4.4 Dime Options and Warrants. At the Effective Time, without any action
on the part of any holder of any such option or warrant, each option or warrant
granted by Dime to purchase shares of Dime Common Stock (any such option or
warrant being referred to as a "Dime Option") that is outstanding and
unexercised immediately prior thereto shall be converted into an option or
warrant, as the case may be, to purchase, on the same terms and conditions as
are in effect for such Dime Option immediately prior to the Effective Time, such
number of shares of Surviving Corporation Common Stock at an exercise price
determined as provided below (and otherwise having the same duration and other
terms as the original Dime Option):
(a) the number of shares of Surviving Corporation Common Stock to be
subject to the new option or warrant shall be equal to the product of (1)
the number of shares of Dime Common Stock purchasable upon exercise of the
original Dime Option and (2) the Exchange Ratio, the product being rounded,
if necessary, up or down, to the nearest whole share; and
(b) the exercise price per share of Surviving Corporation Common Stock
under the new option or warrant shall be equal to (1) the exercise price
per share of Dime Common Stock under the original Dime Option divided by
(2) the Exchange Ratio, the quotient being rounded, if necessary, up or
down to the nearest cent.
The terms of each Dime Option shall, in accordance with its terms, be subject to
further adjustment as appropriate to reflect any reorganization,
recapitalization, reclassification, stock dividend, stock split, reverse stock
split or other similar change in capitalization of Dime subsequent to the
Closing Date. With respect to any Dime Options that are "incentive stock
options" (as defined in Section 422 of the Internal Revenue Code), the foregoing
adjustments shall be effected in a manner consistent with Section 424(a) of the
Internal Revenue Code.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.1 Disclosure Schedules. (a) On or prior to the date hereof, Dime has
delivered to Xxxxxx and Xxxxxx has delivered to Dime a schedule (respectively,
its "Disclosure Schedule") setting forth, among other things, items the
disclosure of which is necessary or appropriate either in response to an express
disclosure requirement contained in a provision hereof or as an exception to one
or more representations or warranties contained in Section 5.3 or to one or more
of its covenants contained in Article VI; provided that (1) no such item is
required to be set forth in a Disclosure Schedule as an exception to a
representation or warranty if its absence is not reasonably likely to result in
the related representation or warranty being deemed untrue or incorrect under
the standard established by Section 5.2, and (2) the mere inclusion of an item
in a Disclosure Schedule as an exception to a representation or warranty shall
not be deemed an admission by a party that such item represents a material
exception or fact, event or circumstance or that such item is reasonably likely
to result in a Material Adverse Effect.
(b) "Material Adverse Effect" shall mean with respect to Dime, Xxxxxx or
the Surviving Corporation any effect that (1) is material and adverse to the
financial position, results of operations or business of Dime and its
subsidiaries taken as a whole, Xxxxxx and its subsidiaries taken as a whole or
the Surviving Corporation and its subsidiaries taken as a whole, respectively,
or (2) would materially impair the ability
A-6
of either Dime or Xxxxxx to perform its obligations under this Agreement or
otherwise materially threaten or materially impede the consummation of the
Merger and the other transactions contemplated by this Agreement; provided,
however, that Material Adverse Effect shall not be deemed to include the impact
of (A) changes in banking and similar laws of general applicability or
interpretations thereof by courts or governmental authorities, (B) changes in
generally accepted accounting principles or regulatory accounting requirements
applicable to depository institutions and their holding companies generally, (C)
actions or omissions of Dime or Xxxxxx taken with the prior written consent of
Xxxxxx or Dime, as applicable, in contemplation of the transactions contemplated
hereby, (D) any modifications or changes to valuation policies and practices in
connection with the Merger or restructuring charges taken in connection with the
Merger, in each case in accordance with generally accepted accounting principles
and (E) the effects of any change attributable to or resulting from changes in
economic conditions applicable to depository institutions or their holding
companies generally or in general levels of interest rates, except to the extent
that the effect of such change is materially more severe for Dime, Xxxxxx or the
Surviving Corporation, as the case may be, than for depository institutions or
their holding companies generally.
(c) "Previously Disclosed" by a party shall mean information set forth on
its Disclosure Schedule corresponding to the provision of this Agreement to
which such information relates; provided that information which, on its face,
reasonably should indicate to the reader that it relates to another provision of
this Agreement shall also be deemed to be Previously Disclosed with respect to
such other provision.
5.2 Standard. No representation or warranty of Dime or Xxxxxx contained
in Section 5.3 shall be deemed untrue or incorrect, and no party hereto shall be
deemed to have breached a representation or warranty, as a consequence of the
existence of any fact, circumstance or event unless such fact, circumstance or
event, individually or taken together with all other facts, circumstances or
events inconsistent with any representation or warranty contained in Section 5.3
has had or is reasonably likely to result in a Material Adverse Effect.
5.3 Representations and Warranties of Dime and Xxxxxx. Except as
Previously Disclosed, Dime hereby represents and warrants to Xxxxxx, and Xxxxxx
hereby represents and warrants to Dime, that:
(a) Recitals True. The statements of fact set forth in Recitals A, B
and F of this Agreement with respect to it are true.
(b) Corporate Organization and Qualification. It is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation and is in good standing as a foreign
corporation in each jurisdiction where the properties owned, leased or
operated or the business conducted by it require such qualification. It has
the requisite corporate power and authority to own or lease its properties
and assets and to carry on its businesses as they are now being conducted.
It has made available to the other party hereto a complete and correct copy
of its certificate of incorporation and by-laws, each as amended to date
and currently in full force and effect.
(c) Subsidiaries. It has Previously Disclosed a list of its
subsidiaries as of the date of this Agreement and the amount and percent of
its ownership thereof. Each of its subsidiaries is duly organized, validly
existing, and in good standing under the laws of the jurisdiction in which
such subsidiary is incorporated or organized, and is duly qualified to do
business and in good standing in each jurisdiction where the property
owned, leased or operated, or the business conducted, by such subsidiary
requires such qualification. Each of its subsidiaries has the requisite
power and authority to own or lease its properties and assets and to carry
on its business as it is now being conducted. Each of its subsidiaries that
is a depository institution is an "insured depository institution" as
defined in the Federal Deposit Insurance Act ("FDIA") and applicable
regulations thereunder.
(d) Capital Stock. (1) In the case of the representations and
warranties made by Dime and in addition to the statements set forth in
Recital A:
As of the date of this Agreement, there were outstanding under the
stock option and other plans Previously Disclosed (the "Dime Stock
Plans"), options or rights to acquire not more than
A-7
an aggregate of 8,078,022 shares of Dime Common Stock (subject to
adjustment on the terms set forth in the Dime Stock Plans). As of the
date of this Agreement, Dime has no shares of Dime Common Stock reserved
for issuance, other than 15,954,541 shares reserved for issuance under
the Dime Stock Plans and the shares reserved for issuance under the Dime
Stock Option Agreement, and has no shares of Dime Preferred Stock
reserved for issuance. All the outstanding shares of Dime Common Stock
have been duly authorized and validly issued and are fully paid and
nonassessable. All the outstanding shares of capital stock of each of
Dime's subsidiaries owned by Dime or a subsidiary of Dime have been duly
authorized and validly issued and are fully paid and nonassessable, and
are owned by Dime or a subsidiary of Dime free and clear of all liens,
pledges, security interests, claims, proxies, preemptive or subscriptive
rights or other encumbrances or restrictions of any kind (collectively,
"Liens"). Except as set forth above (including in Recital A) or in the
Dime Stock Option Agreement or in the Stockholder Protection Rights
Agreement (the "Dime Rights Agreement"), dated as of October 20, 1995,
between Dime and The First National Bank of Boston, as Rights Agent, and
except for Dime Common Stock issued after the date hereof pursuant to
the terms of Dime Stock Plans, there are no shares of capital stock of
Dime authorized, issued or outstanding and there are no preemptive
rights or any outstanding subscriptions, options, warrants, rights,
convertible securities or other agreements or commitments of Dime or any
of its subsidiaries of any character relating to the issued or unissued
capital stock or other securities of Dime or any of its subsidiaries
(including, without limitation, those relating to the issuance, sale,
purchase, redemption, conversion, exchange, registration, voting or
transfer thereof). Other than pursuant to the Xxxxxx Stock Option
Agreement, as of the date hereof, neither Dime nor any of its
subsidiaries beneficially owns, directly or indirectly, or is party to
any agreement, arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of, any shares of Xxxxxx Common
Stock that are, or if owned would be, Exception Shares.
(2) In the case of the representations and warranties made by Xxxxxx
and in addition to the statements set forth in Recital B:
As of the date of this Agreement, there were outstanding under the
stock option and other plans Previously Disclosed (the "Xxxxxx Stock
Plans"), options or rights to acquire not more than an aggregate of
1,141,768 shares of Xxxxxx Common Stock (subject to adjustment on the
terms set forth in the Xxxxxx Stock Plans). As of the date of this
Agreement, Xxxxxx has no shares of Xxxxxx Common Stock reserved for
issuance, other than 13,736,445 shares reserved for issuance under the
Xxxxxx Stock Plans and the shares reserved for issuance under the Xxxxxx
Stock Option Agreement, and has no shares of Xxxxxx Preferred Stock
reserved for issuance. All the outstanding shares of Xxxxxx Common Stock
have been duly authorized and validly issued and are fully paid and
nonassessable. All the outstanding shares of capital stock of each of
Xxxxxx'x subsidiaries owned by Xxxxxx or a subsidiary of Xxxxxx have
been duly authorized and validly issued and are fully paid and
nonassessable and owned by Xxxxxx or a subsidiary of Xxxxxx free and
clear of all Liens. Except as set forth above (including in Recital B)
or in the Xxxxxx Stock Option Agreement and except for Xxxxxx Common
Stock issued after the date hereof pursuant to the terms of the Xxxxxx
Stock Plans, there are no shares of capital stock of Xxxxxx authorized,
issued or outstanding, and there are no preemptive rights or any
outstanding subscriptions, options, warrants, rights, convertible
securities or other agreements or commitments of Xxxxxx or any of its
subsidiaries of any character relating to the issued or unissued capital
stock or other securities of Xxxxxx or any of its subsidiaries
(including, without limitation, those relating to the issuance, sale,
purchase, redemption, conversion, exchange, registration, voting or
transfer thereof). Other than pursuant to the Dime Stock Option
Agreement, as of the date hereof, neither Xxxxxx nor any of its
subsidiaries beneficially owns, directly or indirectly, or is party to
any agreement, arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of, any shares of Dime Common
Stock.
A-8
(e) Corporate Authority. (1) In the case of the representations and
warranties made by Dime: It has the requisite corporate power and authority
and has taken all corporate action necessary in order to execute and
deliver this Agreement and the Stock Option Agreements and, subject only to
the adoption by a majority of holders of the outstanding shares of Dime
Common Stock entitled to vote thereon of the agreement of merger (including
the amendments to the Certificate of Incorporation and By-laws contemplated
by Sections 2.1 and 2.2) contained in this Agreement insofar as required by
Sections 251 and 252 of the DGCL, to consummate the transactions
contemplated hereby. This Agreement is a valid and legally binding
agreement of it enforceable in accordance with the terms hereof. Its Board
of Directors (at a meeting duly called and held) has by requisite vote (A)
authorized and approved this Agreement, the Stock Option Agreements and the
transactions, including the Merger, contemplated hereby and thereby, (B)
directed that the agreement of merger (as such term is used in Section 252
of the DGCL) contained in this Agreement be submitted for consideration to,
and adoption by, its stockholders in accordance with Sections 251 and 252
of the DGCL and (C) approved the execution of the Dime Stock Option
Agreement and authorized and approved the Merger (prior to the execution by
Dime of this Agreement and prior to the date of execution of the Dime Stock
Option Agreement) in accordance with Section 203 of the DGCL.
(2) In the case of the representations and warranties made by Xxxxxx:
It has the requisite corporate power and authority and has taken all
corporate action necessary in order to execute and deliver this Agreement
and the Stock Option Agreements and, subject only to the adoption by a
majority of the votes cast by holders of the outstanding shares of Xxxxxx
Common Stock entitled to vote thereon of the plan of merger contained in
this Agreement insofar as required by Section 14A: 10-3 of the NJBCA, to
consummate the transactions contemplated hereby. Article IX of its
certificate of incorporation is not applicable to the Merger or other
transactions contemplated hereby. This Agreement is a valid and legally
binding agreement of it enforceable in accordance with the terms hereof.
Its Board of Directors (at a meeting duly called and held) has by requisite
vote (A) authorized and approved this Agreement, the Stock Option
Agreements and the transactions, including the Merger, contemplated hereby
and thereby, (B) directed that the plan of merger (as such term is used in
Section 14A: 10-7 of the NJBCA) contained in this Agreement be submitted
for consideration to, and adoption by, its stockholders in accordance
Section 14A: 10-3 of the NJBCA and (C) approved the execution of the Xxxxxx
Stock Option Agreement and authorized and approved the Merger (prior to the
execution by Xxxxxx of this Agreement and prior to the date of execution of
the Xxxxxx Stock Option Agreement) in accordance with Section 14A: 10A-5 of
the NJBCA.
(f) Governmental Filings; No Violations. (1) Other than the approvals
Previously Disclosed, and other than as required under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, the
Securities Exchange Act of 1934, as amended (including the rules and
regulations thereunder, the "Exchange Act"), the Securities Act of 1933, as
amended (including the rules and regulations thereunder, the "Securities
Act"), state securities laws and the rules of the New York Stock Exchange
(the "NYSE") or the National Association of Securities Dealers, Inc. (the
"NASD"), or under any federal or state banking laws or regulations, no
notices, reports or other filings are required to be made by it with, nor
are any consents, registrations, approvals, permits or authorizations
required to be obtained by it from, any governmental or regulatory
authority, agency, court, commission or other entity, domestic or foreign
("Governmental Entity"), in connection with the execution, delivery or
performance of this Agreement by it and the consummation by it of the
transactions contemplated hereby.
(2) The execution, delivery and performance of this Agreement does not
and will not, and the consummation by it of the transactions contemplated
hereby will not, constitute or result in (A) a breach or violation of, or a
default under, its certificate or articles of incorporation or by-laws, or
the comparable governing instruments of any of its subsidiaries, or (B) a
breach or violation of, or a default under, or the acceleration of or the
creation of a Lien (with or without the giving of notice, the lapse of time
or both) pursuant to, any provision of any agreement, lease, contract,
note,
A-9
mortgage, indenture, arrangement or other obligation ("Contracts") of it or
any of its subsidiaries or any law, rule, ordinance or regulation or
judgment, decree, order, award or governmental or non-governmental permit
or license to which it or any of its subsidiaries is subject, or any change
in the rights or obligations of any party under any Contracts. It has
Previously Disclosed a list of all consents of third parties required under
any Contracts to be obtained by it or its subsidiaries prior to
consummation of the Merger.
(g) Reports and Financial Statements. (1) With respect to periods
since January 1, 1997, each of it and its subsidiaries has filed all
reports and statements, together with any amendments required to be made
with respect thereto, that it was required to file with (A) the Securities
and Exchange Commission (the "SEC"), (B) the Office of Thrift Supervision
(the "OTS"), (C) the Federal Deposit Insurance Corporation (the "FDIC"),
(D) the Federal Home Loan Bank System (the "FHLB"), (E) in the case of
representations and warranties of Xxxxxx, the Federal Reserve (as defined
in Section 5.3(k)(3)) and the New Jersey Department of Banking and
Insurance, (F) any other applicable federal or state banking, insurance,
securities, or other regulatory authorities or (G) the NYSE or the NASD,
and, as of their respective dates (and, in the case of reports or
statements filed prior to the date hereof, without giving effect to any
amendments or modifications filed after the date of this Agreement), each
such report or statement, including the financial statements and exhibits
thereto, complied (or will comply, in the case of reports or statements
filed after the date of this Agreement) as to form in all material respects
with all applicable statutes, rules and regulations.
(2) It has delivered to the other of Dime or Xxxxxx each registration
statement, offering circular, report, definitive proxy statement or
information statement under the Securities Act, the Exchange Act and state
securities laws (collectively, the "Securities Laws") filed, used or
circulated by it with respect to periods since January 1, 1997 through the
date of this Agreement and will promptly deliver each such registration
statement, offering circular, report, definitive proxy statement or
information statement filed, used or circulated after the date hereof
(collectively, its "Reports"), each in the form (including exhibits and any
amendments thereto) filed with the SEC (or if not so filed, in the form
used or circulated).
(3) As of their respective dates (and without giving effect to any
amendments or modifications filed after the date of this Agreement), each
of the Reports, including the financial statements, exhibits and schedules
thereto, filed, used or circulated prior to the date hereof complied (and
each of the Reports filed after the date of this Agreement, will comply) in
all material respects with the applicable Securities Laws and did not (or
in the case of reports, statements, or circulars filed after the date of
this Agreement, will not) contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary
to make the statements made therein, in the light of the circumstances
under which they were made, not misleading.
(4) Each of its consolidated balance sheets included in or
incorporated by reference into its Reports, including the related notes and
schedules, fairly presents the consolidated financial position of it and
its subsidiaries as of the date of such balance sheet and each of the
consolidated statements of income, cash flows and stockholders' equity
included in or incorporated by reference into its Reports, including any
related notes and schedules, fairly presents the consolidated results of
operations, retained earnings and cash flows, as the case may be, of it and
its subsidiaries for the periods set forth therein (subject, in the case of
unaudited statements, to normal year-end audit adjustments), in each case
in accordance with generally accepted accounting principles consistently
applied during the periods involved, except as may be noted therein.
Collectively, its foregoing consolidated balance sheets, statements of
income, cash flows and stockholders' equity are referred to as its
"Financial Statements".
(5) It knows of no reason why the allowance or loan and lease losses
shown in its consolidated balance sheet dated June 30, 1999 included in its
Financial Statements was not adequate as of such
A-10
date to provide for estimable and probable losses, net of recoveries
relating to loans previously charged off, inherent in its loan portfolio.
(h) Asset Classification. It has Previously Disclosed a list,
accurate and complete in all material respects, of the aggregate amounts of
loans, extensions of credit and other assets of it and its subsidiaries
that have been criticized or classified as of June 30, 1999 by it,
separated by category of classification or criticism (the "Asset
Classification"); and no amounts of loans, extensions of credit or other
assets that have been classified or criticized as of the date hereof by any
representative of any Governmental Entity as "Other Loans Especially
Mentioned", "Substandard", "Doubtful", "Loss" or words of similar import
are excluded from the amounts disclosed in the Asset Classification, other
than amounts of loans, extensions of credit or other assets that were
charged off by it or its subsidiaries prior to the date hereof.
(i) Absence of Certain Events and Changes. Except as disclosed in its
Reports filed by it with the SEC since December 31, 1998, and, except as
expressly contemplated by this Agreement, it and its subsidiaries have
conducted their respective businesses only in the ordinary and usual course
of such businesses and since that date, without giving effect to the
proviso of Section 5.1(a) or to Section 5.2, there has not been any change
or development or combination of changes or developments which,
individually or in the aggregate, is reasonably likely to result in a
Material Adverse Effect.
(j) Properties. Except as disclosed or reserved against in its
Reports or Financial Statements, it and its subsidiaries have good and
marketable title, free and clear of all Liens (other than Liens for current
taxes not yet delinquent or pledges to secure deposits) to all of the
material properties and assets, tangible or intangible, reflected in its
Reports as being owned by it or its subsidiaries as of the dates thereof.
All leased buildings and all leased fixtures, equipment and other property
and assets that are material to its business on a consolidated basis are
held under valid leases or subleases by it or its subsidiaries enforceable
in accordance with their respective terms (except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally or by general equity principles).
(k) Compliance with Laws. It and each of its subsidiaries:
(1) is in compliance with all applicable federal, state, local and
foreign statutes, laws, regulations, ordinances, rules, judgments,
orders or decrees applicable thereto or to the employees conducting such
businesses;
(2) has all permits, licenses, certificates of authority, orders,
and approvals of, and has made all filings, applications, and
registrations with, federal, state, local, and foreign governmental or
regulatory bodies that are required in order to permit it or such
subsidiary to carry on its business as it is presently conducted;
(3) has received since January 1, 1997 no notification or
communication from any Governmental Entity (including the OTS, the FDIC,
the Board of Governors of the Federal Reserve System (the "Federal
Reserve") and any other bank, insurance or securities regulatory
authorities) or the staff thereof (A) asserting that it or any of its
subsidiaries is not in compliance with any of the statutes, regulations
or ordinances that such Governmental Entity enforces; (B) threatening to
revoke any license, franchise, permit or governmental authorization; or
(C) threatening or contemplating revocation or limitation of, or which
would have the effect of revoking or limiting, FDIC deposit insurance
(nor, to its knowledge, do any grounds for any of the foregoing exist);
and
(4) is not required to give prior notice to any federal banking or
thrift agency of the proposed addition of an individual to its board of
directors or the employment of an individual as a senior executive.
A-11
(l) Litigation. Except as disclosed in its Reports filed with the SEC
prior to the date hereof, there are no criminal or administrative
investigations or hearings of, before or by any Governmental Entity, or
civil, criminal or administrative actions, suits, claims or proceedings of,
before or by any person (including any Governmental Entity) pending or, to
its knowledge, threatened, against it or any of its subsidiaries; and
neither it nor any of its subsidiaries (nor any officer, director,
controlling person or property of it or any of its subsidiaries) is a party
to or is subject to any order, decree, agreement, memorandum of
understanding or similar arrangement with, or a commitment letter or
similar submission to, any Governmental Entity charged with the supervision
or regulation of depository institutions or engaged in the insurance of
deposits (including, without limitation, the OTS, the Federal Reserve, the
FHLB and the FDIC) or the supervision or regulation of it or any of its
subsidiaries and neither it nor any of its subsidiaries has been advised by
any such Governmental Entity that such Governmental Entity is contemplating
issuing or requesting (or is considering the appropriateness of issuing or
requesting) any such order, decree, agreement, memorandum of understanding,
commitment letter or similar submission.
(m) Taxes. (1) The term "Tax" or "Taxes" includes any tax or similar
governmental charge, impost or levy (including, without limitation, income
taxes, franchise taxes, transfer taxes or fees, stamp taxes, sales taxes,
use taxes, excise taxes, ad valorem taxes, withholding taxes, employee
withholding taxes, worker's compensation, payroll taxes, unemployment
insurance, social security, minimum taxes or windfall profits taxes),
together with any related liabilities, penalties, fines, additions to tax
or interest, imposed by the United States or any state, county, provincial,
local or foreign government or subdivision or agency thereof.
(2) All federal, state and local Tax returns, including all
information returns, required to be filed by or on behalf of it or any of
its subsidiaries have been timely filed or requests for extensions have
been timely filed and any such extension shall have been granted and not
have expired, and all such filed returns are complete and accurate in all
material respects. Except as disclosed in its Reports, all Taxes
attributable to it or any of its subsidiaries that are or were due or
payable (without regard to whether such Taxes have been assessed) have been
paid in full or have been adequately provided for on its consolidated
balance sheet and consolidated statement of earnings or income (in
accordance with generally accepted accounting principles). Adequate
provision in accordance with generally accepted accounting principles
appropriately and consistently applied has been made in the Reports
relating to all Taxes for the periods covered thereby that were not yet due
and payable as of the dates thereof, regardless of whether the liability
for such Taxes is disputed. As of the date of this Agreement and except as
disclosed in its Reports, there is no outstanding audit examination,
deficiency, refund litigation or outstanding waivers or agreements
extending the applicable statute of limitations for the assessment or
collection of any Taxes for any period with respect to any Taxes of it or
its subsidiaries. All Taxes, interest, additions and penalties due with
respect to completed and settled examinations or concluded litigation
relating to it or any of its subsidiaries have been paid in full or have
been recorded on its or such subsidiary's balance sheet and consolidated
statement of earnings or income (in accordance with generally accepted
accounting principles). Neither it nor any of its subsidiaries is a party
to a tax sharing or similar agreement or any agreement pursuant to which it
or any of its subsidiaries has indemnified any party (other than it or one
of its subsidiaries) with respect to Taxes. The proper and accurate amounts
have been or will be withheld from all employees (and timely paid to the
appropriate Governmental Entity or set aside in an account for such
purposes) for all periods through the Closing Date in compliance with all
Tax withholding provisions of applicable federal, state, local and foreign
laws (including, without limitation, income, social security and employment
tax withholding for all types of compensation).
(n) Insurance. Each of it and its subsidiaries has taken all
requisite action (including without limitation the making of claims and the
giving of notices) pursuant to its directors' and officers' liability
insurance policy or policies in order to preserve all rights thereunder
with respect to all matters (other than matters arising in connection with
this Agreement and the transactions
A-12
contemplated hereby) that are known to it. It has Previously Disclosed a
list of all directors' and officers' liability insurance policies
maintained by it or its subsidiaries.
(o) Labor Matters. Neither it nor any of its subsidiaries is a party
to, or is bound by, any collective bargaining agreement, contract or other
agreement or understanding with a labor union or labor organization, nor is
it or any of its subsidiaries the subject of any material proceeding
asserting that it or any such subsidiary has committed an unfair labor
practice or seeking to compel it or such subsidiary to bargain with any
labor organization as to wages or conditions of employment, nor is there
any strike involving it or any of its subsidiaries pending or, to its
knowledge, threatened, nor is it aware of any activity involving its or any
of its subsidiaries' employees seeking to certify a collective bargaining
unit or engaging in any other organizational activity.
(p) Employee Benefits. (1) As of the date of this Agreement, it has
Previously Disclosed a list of all bonus, deferred compensation, pension,
retirement, profit-sharing, thrift, savings, employee stock ownership,
stock bonus, stock purchase, restricted stock and stock option plans, all
material employment or severance contracts, consulting agreements and all
other material employee benefit plans that cover employees, former
employees, directors or independent contractors (and their spouses,
dependents or beneficiaries) of it and its subsidiaries (its "Compensation
Plans"). True and complete copies of the Compensation Plans (and, as
applicable, copies of summary plan descriptions, governmental filings (on
Form 5500 series or otherwise), actuarial reports and reports under
Financial Accounting Standards Board Statement No. 106 relating thereto)
and all other benefit plans, contracts or arrangements (regardless of
whether they are funded or unfunded or foreign or domestic) covering
current or former employees, directors or independent contractors (and
their spouses, dependents or beneficiaries) of it or its subsidiaries (its
"Employees"), including, but not limited to, "employee benefit plans"
within the meaning of Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), and all amendments thereto,
have been made available to the other party.
(2) Except as disclosed in its Reports or as provided in this
Agreement, the transactions contemplated by this Agreement and the Stock
Option Agreements will not result in the vesting or acceleration of any
amounts under any Compensation Plan, any material increase in benefits
under any Compensation Plan or payment of any severance or similar
compensation under any Compensation Plan.
(3) All of its and its subsidiaries' employee benefit plans, within
the meaning of Section 3(3) of ERISA, other than "multiemployer plans"
within the meaning of Section 3(37) or 4001(a)(3) of ERISA, covering
Employees (collectively, its "Plans") are in compliance with the applicable
provisions of ERISA and the Internal Revenue Code, and other applicable
laws in all material respects. Each of its Plans which is an "employee
pension benefit plan" within the meaning of Section 3(2) of ERISA ("Pension
Plan") and which is intended to be qualified under Section 401(a) of the
Internal Revenue Code has received a favorable determination letter from
the Internal Revenue Service, and it is not aware of any circumstances
likely to result in revocation of any such favorable determination letter.
There is no pending or, to its knowledge, threatened litigation relating to
its Plans. Neither it nor any of its subsidiaries has engaged in a
transaction with respect to any Plan that could subject it or any of its
subsidiaries to a tax or penalty imposed by either Section 4975 of the
Internal Revenue Code or Section 502(i) of ERISA.
(4) No liability under Subtitle C or D of Title IV of ERISA (other
than payment of applicable premiums) has been or is expected to be incurred
by it or any of its subsidiaries with respect to any ongoing, frozen or
terminated "single-employer plan", within the meaning of Section
4001(a)(15) of ERISA, currently or formerly maintained by any of them, or
the single-employer plan of any entity which is considered one employer
with it under Section 4001 of ERISA or Section 414 of the Internal Revenue
Code (an "ERISA Affiliate"). It and its subsidiaries and ERISA Affiliates
have not incurred and do not expect to incur any material withdrawal
liability with respect to a multiemployer plan under Subtitle E of Title IV
of ERISA (regardless of whether based on contributions of an
A-13
ERISA Affiliate), nor has it or any of its subsidiaries or ERISA Affiliates
been notified by any multiemployer plan to which it or any of its
subsidiaries or ERISA Affiliates is contributing, or may be obligated to
contribute, that such multiemployer plan is currently in reorganization or
insolvency under and within the meaning of Section 4241 or 4245 of ERISA or
that such multiemployer plan intends to terminate or has been terminated
under Section 4041A of ERISA. No notice of a "reportable event", within the
meaning of Section 4043 o of
unaudited statements, to normal year-end audit adjustments), in each case
in accordance with generally accepted accounting principles consistently
applied during the periods involved, except as may be noted therein.
Collectively, its foregoing consolidated balance sheets, statements of
income, cash flows and stockholders' equity are referred to as its
"Financial Statements".
(5) It knows of no reason why the allowance for loan and lease losses
shown in its consolidated balance sheet dated June 30, 1999 included in its
Financial Statements was not adequate as of such
A-10
date to provide for estimable and probable losses, net of recoveries
relating to loans previously charged off, inherent in its loan portfolio.
(h) Asset Classification. It has Previously Disclosed a list,
accurate and complete in all material respects, of the aggregate amounts of
loans, extensions of credit and other assets of it and its subsidiaries
that have been criticized or classified as of June 30, 1999 by it,
separated by category of classification or criticism (the "Asset
Classification"); and no amounts of loans, extensions of credit or other
assets that have been classified or criticized as of the date hereof by any
representative of any Governmental Entity as "Other Loans Especially
Mentioned", "Substandard", "Doubtful", "Loss" or words of similar import
are excluded from the amounts disclosed in the Asset Classification, other
than amounts of loans, extensions of credit or other assets that were
charged off by it or its subsidiaries prior to the date hereof.
(i) Absence of Certain Events and Changes. Except as disclosed in its
Reports filed by it with the SEC since December 31, 1998, and, except as
expressly contemplated by this Agreement, it and its subsidiaries have
conducted their respective businesses only in the ordinary and usual course
of such businesses and since that date, without giving effect to the
proviso of Section 5.1(a) or to Section 5.2, there has not been any change
or development or combination of changes or developments which,
individually or in the aggregate, is reasonably likely to result in a
Material Adverse Effect.
(j) Properties. Except as disclosed or reserved against in its
Reports or Financial Statements, it and its subsidiaries have good and
marketable title, free and clear of all Liens (other than Liens for current
taxes not yet delinquent or pledges to secure deposits) to all of the
material properties and assets, tangible or intangible, reflected in its
Reports as being owned by it or its subsidiaries as of the dates thereof.
All leased buildings and all leased fixtures, equipment and other property
and assets that are material to its business on a consolidated basis are
held under valid leases or subleases by it or its subsidiaries enforceable
in accordance with their respective terms (except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally or by general equity principles).
(k) Compliance with Laws. It and each of its subsidiaries:
(1) is in compliance with all applicable federal, state, local and
foreign statutes, laws, regulations, ordinances, rules, judgments,
orders or decrees applicable thereto or to the employees conducting such
businesses;
(2) has all permits, licenses, certificates of authority, orders,
and approvals of, and has made all filings, applications, and
registrations with, federal, state, local, and foreign governmental or
regulatory bodies that are required in order to permit it or such
subsidiary to carry on its business as it is presently conducted;
(3) has received since January 1, 1997 no notification or
communication from any Governmental Entity (including the OTS, the FDIC,
the Board of Governors of the Federal Reserve System (the "Federal
Reserve") and any other bank, insurance or securities regulatory
authorities) or the staff thereof (A) asserting that it or any of its
subsidiaries is not in compliance with any of the statutes, regulations
or ordinances that such Governmental Entity enforces; (B) threatening to
revoke any license, franchise, permit or governmental authorization; or
(C) threatening or contemplating revocation or limitation of, or which
would have the effect of revoking or limiting, FDIC deposit insurance
(nor, to its knowledge, do any grounds for any of the foregoing exist);
and
(4) is not required to give prior notice to any federal banking or
thrift agency of the proposed addition of an individual to its board of
directors or the employment of an individual as a senior executive.
A-11
(l) Litigation. Except as disclosed in its Reports filed with the SEC
prior to the date hereof, there are no criminal or administrative
investigations or hearings of, before or by any Governmental Entity, or
civil, criminal or administrative actions, suits, claims or proceedings of,
before or by any person (including any Governmental Entity) pending or, to
its knowledge, threatened, against it or any of its subsidiaries; and
neither it nor any of its subsidiaries (nor any officer, director,
controlling person or property of it or any of its subsidiaries) is a party
to or is subject to any order, decree, agreement, memorandum of
understanding or similar arrangement with, or a commitment letter or
similar submission to, any Governmental Entity charged with the supervision
or regulation of depository institutions or engaged in the insurance of
deposits (including, without limitation, the OTS, the Federal Reserve, the
FHLB and the FDIC) or the supervision or regulation of it or any of its
subsidiaries and neither it nor any of its subsidiaries has been advised by
any such Governmental Entity that such Governmental Entity is contemplating
issuing or requesting (or is considering the appropriateness of issuing or
requesting) any such order, decree, agreement, memorandum of understanding,
commitment letter or similar submission.
(m) Taxes. (1) The term "Tax" or "Taxes" includes any tax or similar
governmental charge, impost or levy (including, without limitation, income
taxes, franchise taxes, transfer taxes or fees, stamp taxes, sales taxes,
use taxes, excise taxes, ad valorem taxes, withholding taxes, employee
withholding taxes, worker's compensation, payroll taxes, unemployment
insurance, social security, minimum taxes or windfall profits taxes),
together with any related liabilities, penalties, fines, additions to tax
or interest, imposed by the United States or any state, county, provincial,
local or foreign government or subdivision or agency thereof.
(2) All federal, state and local Tax returns, including all
information returns, required to be filed by or on behalf of it or any of
its subsidiaries have been timely filed or requests for extensions have
been timely filed and any such extension shall have been granted and not
have expired, and all such filed returns are complete and accurate in all
material respects. Except as disclosed in its Reports, all Taxes
attributable to it or any of its subsidiaries that are or were due or
payable (without regard to whether such Taxes have been assessed) have been
paid in full or have been adequately provided for on its consolidated
balance sheet and consolidated statement of earnings or income (in
accordance with generally accepted accounting principles). Adequate
provision in accordance with generally accepted accounting principles
appropriately and consistently applied has been made in the Reports
relating to all Taxes for the periods covered thereby that were not yet due
and payable as of the dates thereof, regardless of whether the liability
for such Taxes is disputed. As of the date of this Agreement and except as
disclosed in its Reports, there is no outstanding audit examination,
deficiency, refund litigation or outstanding waivers or agreements
extending the applicable statute of limitations for the assessment or
collection of any Taxes for any period with respect to any Taxes of it or
its subsidiaries. All Taxes, interest, additions and penalties due with
respect to completed and settled examinations or concluded litigation
relating to it or any of its subsidiaries have been paid in full or have
been recorded on its or such subsidiary's balance sheet and consolidated
statement of earnings or income (in accordance with generally accepted
accounting principles). Neither it nor any of its subsidiaries is a party
to a tax sharing or similar agreement or any agreement pursuant to which it
or any of its subsidiaries has indemnified any party (other than it or one
of its subsidiaries) with respect to Taxes. The proper and accurate amounts
have been or will be withheld from all employees (and timely paid to the
appropriate Governmental Entity or set aside in an account for such
purposes) for all periods through the Closing Date in compliance with all
Tax withholding provisions of applicable federal, state, local and foreign
laws (including, without limitation, income, social security and employment
tax withholding for all types of compensation).
(n) Insurance. Each of it and its subsidiaries has taken all
requisite action (including without limitation the making of claims and the
giving of notices) pursuant to its directors' and officers' liability
insurance policy or policies in order to preserve all rights thereunder
with respect to all matters (other than matters arising in connection with
this Agreement and the transactions
A-12
contemplated hereby) that are known to it. It has Previously Disclosed a
list of all directors' and officers' liability insurance policies
maintained by it or its subsidiaries.
(o) Labor Matters. Neither it nor any of its subsidiaries is a party
to, or is bound by, any collective bargaining agreement, contract or other
agreement or understanding with a labor union or labor organization, nor is
it or any of its subsidiaries the subject of any material proceeding
asserting that it or any such subsidiary has committed an unfair labor
practice or seeking to compel it or such subsidiary to bargain with any
labor organization as to wages or conditions of employment, nor is there
any strike involving it or any of its subsidiaries pending or, to its
knowledge, threatened, nor is it aware of any activity involving its or any
of its subsidiaries' employees seeking to certify a collective bargaining
unit or engaging in any other organizational activity.
(p) Employee Benefits. (1) As of the date of this Agreement, it has
Previously Disclosed a list of all bonus, deferred compensation, pension,
retirement, profit-sharing, thrift, savings, employee stock ownership,
stock bonus, stock purchase, restricted stock and stock option plans, all
material employment or severance contracts, consulting agreements and all
other material employee benefit plans that cover employees, former
employees, directors or independent contractors (and their spouses,
dependents or beneficiaries) of it and its subsidiaries (its "Compensation
Plans"). True and complete copies of the Compensation Plans (and, as
applicable, copies of summary plan descriptions, governmental filings (on
Form 5500 series or otherwise), actuarial reports and reports under
Financial Accounting Standards Board Statement No. 106 relating thereto)
and all other benefit plans, contracts or arrangements (regardless of
whether they are funded or unfunded or foreign or domestic) covering
current or former employees, directors or independent contractors (and
their spouses, dependents or beneficiaries) of it or its subsidiaries (its
"Employees"), including, but not limited to, "employee benefit plans"
within the meaning of Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), and all amendments thereto,
have been made available to the other party.
(2) Except as disclosed in its Reports or as provided in this
Agreement, the transactions contemplated by this Agreement and the Stock
Option Agreements will not result in the vesting or acceleration of any
amounts under any Compensation Plan, any material increase in benefits
under any Compensation Plan or payment of any severance or similar
compensation under any Compensation Plan.
(3) All of its and its subsidiaries' employee benefit plans, within
the meaning of Section 3(3) of ERISA, other than "multiemployer plans"
within the meaning of Section 3(37) or 4001(a)(3) of ERISA, covering
Employees (collectively, its "Plans") are in compliance with the applicable
provisions of ERISA and the Internal Revenue Code, and other applicable
laws in all material respects. Each of its Plans which is an "employee
pension benefit plan" within the meaning of Section 3(2) of ERISA ("Pension
Plan") and which is intended to be qualified under Section 401(a) of the
Internal Revenue Code has received a favorable determination letter from
the Internal Revenue Service, and it is not aware of any circumstances
likely to result in revocation of any such favorable determination letter.
There is no pending or, to its knowledge, threatened litigation relating to
its Plans. Neither it nor any of its subsidiaries has engaged in a
transaction with respect to any Plan that could subject it or any of its
subsidiaries to a tax or penalty imposed by either Section 4975 of the
Internal Revenue Code or Section 502(i) of ERISA.
(4) No liability under Subtitle C or D of Title IV of ERISA (other
than payment of applicable premiums) has been or is expected to be incurred
by it or any of its subsidiaries with respect to any ongoing, frozen or
terminated "single-employer plan", within the meaning of Section
4001(a)(15) of ERISA, currently or formerly maintained by any of them, or
the single-employer plan of any entity which is considered one employer
with it under Section 4001 of ERISA or Section 414 of the Internal Revenue
Code (an "ERISA Affiliate"). It and its subsidiaries and ERISA Affiliates
have not incurred and do not expect to incur any material withdrawal
liability with respect to a multiemployer plan under Subtitle E of Title IV
of ERISA (regardless of whether based on contributions of an
A-13
ERISA Affiliate), nor has it or any of its subsidiaries or ERISA Affiliates
been notified by any multiemployer plan to which it or any of its
subsidiaries or ERISA Affiliates is contributing, or may be obligated to
contribute, that such multiemployer plan is currently in reorganization or
insolvency under and within the meaning of Section 4241 or 4245 of ERISA or
that such multiemployer plan intends to terminate or has been terminated
under Section 4041A of ERISA. No notice of a "reportable event", within the
meaning of Section 4043 o of
unaudited statements, to normal year-end audit adjustments), in each case
in accordance with generally accepted accounting principles consistently
applied during the periods involved, except as may be noted therein.
Collectively, its foregoing consolidated balance sheets, statements of
income, cash flows and stockholders' equity are referred to as its
"Financial Statements".
(5) It knows of no reason why the allowance for loaand lease losses
shown in its consolidated balance sheet dated June 30, 1999 included in its
Financial Statements was not adequate as of such
A-10
date to provide for estimable and probable losses, net of recoveries
relating to loans previously charged off, inherent in its loan portfolio.
(h) Asset Classification. It has Previously Disclosed a list,
accurate and complete in all material respects, of the aggregate amounts of
loans, extensions of credit and other assets of it and its subsidiaries
that have been criticized or classified as of June 30, 1999 by it,
separated by category of classification or criticism (the "Asset
Classification"); and no amounts of loans, extensions of credit or other
assets that have been classified or criticized as of the date hereof by any
representative of any Governmental Entity as "Other Loans Especially
Mentioned", "Substandard", "Doubtful", "Loss" or words of similar import
are excluded from the amounts disclosed in the Asset Classification, other
than amounts of loans, extensions of credit or other assets that were
charged off by it or its subsidiaries prior to the date hereof.
(i) Absence of Certain Events and Changes. Except as disclosed in its
Reports filed by it with the SEC since December 31, 1998, and, except as
expressly contemplated by this Agreement, it and its subsidiaries have
conducted their respective businesses only in the ordinary and usual course
of such businesses and since that date, without giving effect to the
proviso of Section 5.1(a) or to Section 5.2, there has not been any change
or development or combination of changes or developments which,
individually or in the aggregate, is reasonably likely to result in a
Material Adverse Effect.
(j) Properties. Except as disclosed or reserved against in its
Reports or Financial Statements, it and its subsidiaries have good and
marketable title, free and clear of all Liens (other than Liens for current
taxes not yet delinquent or pledges to secure deposits) to all of the
material properties and assets, tangible or intangible, reflected in its
Reports as being owned by it or its subsidiaries as of the dates thereof.
All leased buildings and all leased fixtures, equipment and other property
and assets that are material to its business on a consolidated basis are
held under valid leases or subleases by it or its subsidiaries enforceable
in accordance with their respective terms (except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally or by general equity principles).
(k) Compliance with Laws. It and each of its subsidiaries:
(1) is in compliance with all applicable federal, state, local and
foreign statutes, laws, regulations, ordinances, rules, judgments,
orders or decrees applicable thereto or to the employees conducting such
businesses;
(2) has all permits, licenses, certificates of authority, orders,
and approvals of, and has made all filings, applications, and
registrations with, federal, state, local, and foreign governmental or
regulatory bodies that are required in order to permit it or such
subsidiary to carry on its business as it is presently conducted;
(3) has received since January 1, 1997 no notification or
communication from any Governmental Entity (including the OTS, the FDIC,
the Board of Governors of the Federal Reserve System (the "Federal
Reserve") and any other bank, insurance or securities regulatory
authorities) or the staff thereof (A) asserting that it or any of its
subsidiaries is not in compliance with any of the statutes, regulations
or ordinances that such Governmental Entity enforces; (B) threatening to
revoke any license, franchise, permit or governmental authorization; or
(C) threatening or contemplating revocation or limitation of, or which
would have the effect of revoking or limiting, FDIC deposit insurance
(nor, to its knowledge, do any grounds for any of the foregoing exist);
and
(4) is not required to give prior notice to any federal banking or
thrift agency of the proposed addition of an individual to its board of
directors or the employment of an individual as a senior executive.
A-11
(l) Litigation. Except as disclosed in its Reports filed with the SEC
prior to the date hereof, there are no criminal or administrative
investigations or hearings of, before or by any Governmental Entity, or
civil, criminal or administrative actions, suits, claims or proceedings of,
before or by any person (including any Governmental Entity) pending or, to
its knowledge, threatened, against it or any of its subsidiaries; and
neither it nor any of its subsidiaries (nor any officer, director,
controlling person or property of it or any of its subsidiaries) is a party
to or is subject to any order, decree, agreement, memorandum of
understanding or similar arrangement with, or a commitment letter or
similar submission to, any Governmental Entity charged with the supervision
or regulation of depository institutions or engaged in the insurance of
deposits (including, without limitation, the OTS, the Federal Reserve, the
FHLB and the FDIC) or the supervision or regulation of it or any of its
subsidiaries and neither it nor any of its subsidiaries has been advised by
any such Governmental Entity that such Governmental Entity is contemplating
issuing or requesting (or is considering the appropriateness of issuing or
requesting) any such order, decree, agreement, memorandum of understanding,
commitment letter or similar submission.
(m) Taxes. (1) The term "Tax" or "Taxes" includes any tax or similar
governmental charge, impost or levy (including, without limitation, income
taxes, franchise taxes, transfer taxes or fees, stamp taxes, sales taxes,
use taxes, excise taxes, ad valorem taxes, withholding taxes, employee
withholding taxes, worker's compensation, payroll taxes, unemployment
insurance, social security, minimum taxes or windfall profits taxes),
together with any related liabilities, penalties, fines, additions to tax
or interest, imposed by the United States or any state, county, provincial,
local or foreign government or subdivision or agency thereof.
(2) All federal, state and local Tax returns, including all
information returns, required to be filed by or on behalf of it or any of
its subsidiaries have been timely filed or requests for extensions have
been timely filed and any such extension shall have been granted and not
have expired, and all such filed returns are complete and accurate in all
material respects. Except as disclosed in its Reports, all Taxes
attributable to it or any of its subsidiaries that are or were due or
payable (without regard to whether such Taxes have been assessed) have been
paid in full or have been adequately provided for on its consolidated
balance sheet and consolidated statement of earnings or income (in
accordance with generally accepted accounting principles). Adequate
provision in accordance with generally accepted accounting principles
appropriately and consistently applied has been made in the Reports
relating to all Taxes for the periods covered thereby that were not yet due
and payable as of the dates thereof, regardless of whether the liability
for such Taxes is disputed. As of the date of this Agreement and except as
disclosed in its Reports, there is no outstanding audit examination,
deficiency, refund litigation or outstanding waivers or agreements
extending the applicable statute of limitations for the assessment or
collection of any Taxes for any period with respect to any Taxes of it or
its subsidiaries. All Taxes, interest, additions and penalties due with
respect to completed and settled examinations or concluded litigation
relating to it or any of its subsidiaries have been paid in full or have
been recorded on its or such subsidiary's balance sheet and consolidated
statement of earnings or income (in accordance with generally accepted
accounting principles). Neither it nor any of its subsidiaries is a party
to a tax sharing or similar agreement or any agreement pursuant to which it
or any of its subsidiaries has indemnified any party (other than it or one
of its subsidiaries) with respect to Taxes. The proper and accurate amounts
have been or will be withheld from all employees (and timely paid to the
appropriate Governmental Entity or set aside in an account for such
purposes) for all periods through the Closing Date in compliance with all
Tax withholding provisions of applicable federal, state, local and foreign
laws (including, without limitation, income, social security and employment
tax withholding for all types of compensation).
(n) Insurance. Each of it and its subsidiaries has taken all
requisite action (including without limitation the making of claims and the
giving of notices) pursuant to its directors' and officers' liability
insurance policy or policies in order to preserve all rights thereunder
with respect to all matters (other than matters arising in connection with
this Agreement and the transactions
A-12
contemplated hereby) that are known to it. It has Previously Disclosed a
list of all directors' and officers' liability insurance policies
maintained by it or its subsidiaries.
(o) Labor Matters. Neither it nor any of its subsidiaries is a party
to, or is bound by, any collective bargaining agreement, contract or other
agreement or understanding with a labor union or labor organization, nor is
it or any of its subsidiaries the subject of any material proceeding
asserting that it or any such subsidiary has committed an unfair labor
practice or seeking to compel it or such subsidiary to bargain with any
labor organization as to wages or conditions of employment, nor is there
any strike involving it or any of its subsidiaries pending or, to its
knowledge, threatened, nor is it aware of any activity involving its or any
of its subsidiaries' employees seeking to certify a collective bargaining
unit or engaging in any other organizational activity.
(p) Employee Benefits. (1) As of the date of this Agreement, it has
Previously Disclosed a list of all bonus, deferred compensation, pension,
retirement, profit-sharing, thrift, savings, employee stock ownership,
stock bonus, stock purchase, restricted stock and stock option plans, all
material employment or severance contracts, consulting agreements and all
other material employee benefit plans that cover employees, former
employees, directors or independent contractors (and their spouses,
dependents or beneficiaries) of it and its subsidiaries (its "Compensation
Plans"). True and complete copies of the Compensation Plans (and, as
applicable, copies of summary plan descriptions, governmental filings (on
Form 5500 series or otherwise), actuarial reports and reports under
Financial Accounting Standards Board Statement No. 106 relating thereto)
and all other benefit plans, contracts or arrangements (regardless of
whether they are funded or unfunded or foreign or domestic) covering
current or former employees, directors or independent contractors (and
their spouses, dependents or beneficiaries) of it or its subsidiaries (its
"Employees"), including, but not limited to, "employee benefit plans"
within the meaning of Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), and all amendments thereto,
have been made available to the other party.
(2) Except as disclosed in its Reports or as provided in this
Agreement, the transactions contemplated by this Agreement and the Stock
Option Agreements will not result in the vesting or acceleration of any
amounts under any Compensation Plan, any material increase in benefits
under any Compensation Plan or payment of any severance or similar
compensation under any Compensation Plan.
(3) All of its and its subsidiaries' employee benefit plans, within
the meaning of Section 3(3) of ERISA, other than "multiemployer plans"
within the meaning of Section 3(37) or 4001(a)(3) of ERISA, covering
Employees (collectively, its "Plans") are in compliance with the applicable
provisions of ERISA and the Internal Revenue Code, and other applicable
laws in all material respects. Each of its Plans which is an "employee
pension benefit plan" within the meaning of Section 3(2) of ERISA ("Pension
Plan") and which is intended to be qualified under Section 401(a) of the
Internal Revenue Code has received a favorable determination letter from
the Internal Revenue Service, and it is not aware of any circumstances
likely to result in revocation of any such favorable determination letter.
There is no pending or, to its knowledge, threatened litigation relating to
its Plans. Neither it nor any of its subsidiaries has engaged in a
transaction with respect to any Plan that could subject it or any of its
subsidiaries to a tax or penalty imposed by either Section 4975 of the
Internal Revenue Code or Section 502(i) of ERISA.
(4) No liability under Subtitle C or D of Title IV of ERISA (other
than payment of applicable premiums) has been or is expected to be incurred
by it or any of its subsidiaries with respect to any ongoing, frozen or
terminated "single-employer plan", within the meaning of Section
4001(a)(15) of ERISA, currently or formerly maintained by any of them, or
the single-employer plan of any entity which is considered one employer
with it under Section 4001 of ERISA or Section 414 of the Internal Revenue
Code (an "ERISA Affiliate"). It and its subsidiaries and ERISA Affiliates
have not incurred and do not expect to incur any material withdrawal
liability with respect to a multiemployer plan under Subtitle E of Title IV
of ERISA (regardless of whether based on contributions of an
A-13
ERISA Affiliate), nor has it or any of its subsidiaries or ERISA Affiliates
been notified by any multiemployer plan to which it or any of its
subsidiaries or ERISA Affiliates is contributing, or may be obligated to
contribute, that such multiemployer plan is currently in reorganization or
insolvency under and within the meaning of Section 4241 or 4245 of ERISA or
that such multiemployer plan intends to terminate or has been terminated
under Section 4041A of ERISA. No notice of a "reportable event", within the
meaning of Section 4043 o of
unaudited statements, to normal year-end audit adjustments), in each case
in accordance with generally accepted accounting principles consistently
applied during the periods involved, except as may be noted therein.
Collectively, its foregoing consolidated balance sheets, statements of
income, cash flows and stockholders' equity are referred to as its
"Financial Statements".
(5) It knows of no reason why the allowance for loan and lease losses
shown in its consolidated balance sheet dated June 30, 1999 included in its
Financial Statements was not adequate as of such
A-10
date to provide for estimable and probable losses, net of recoveries
relating to loans previously charged off, inherent in its loan portfolio.
(h) Asset Classification. It has Previously Disclosed a list,
accurate and complete in all material respects, of the aggregate amounts of
loans, extensions of credit and other assets of it and its subsidiaries
that have been criticized or classified as of June 30, 1999 by it,
separated by category of classification or criticism (the "Asset
Classification"); and no amounts of loans, extensions of credit or other
assets that have been classified or criticized as of the date hereof by any
representative of any Governmental Entity as "Other Loans Especially
Mentioned", "Substandard", "Doubtful", "Loss" or words of similar import
are excluded from the amounts disclosed in the Asset Classification, other
than amounts of loans, extensions of credit or other assets that were
charged off by it or its subsidiaries prior to the date hereof.
(i) Absence of Certain Events and Changes. Except as disclosed in its
Reports filed by it with the SEC since December 31, 1998, and, except as
expressly contemplated by this Agreement, it and its subsidiaries have
conducted their respective businesses only in the ordinary and usual course
of such businesses and since that date, without giving effect to the
proviso of Section 5.1(a) or to Section 5.2, there has not been any change
or development or combination of changes or developments which,
individually or in the aggregate, is reasonably likely to result in a
Material Adverse Effect.
(j) Properties. Except as disclosed or reserved against in its
Reports or Financial Statements, it and its subsidiaries have good and
marketable title, free and clear of all Liens (other than Liens for current
taxes not yet delinquent or pledges to secure deposits) to all of the
material properties and assets, tangible or intangible, reflected in its
Reports as being owned by it or its subsidiaries as of the dates thereof.
All leased buildings and all leased fixtures, equipment and other property
and assets that are material to its business on a consolidated basis are
held under valid leases or subleases by it or its subsidiaries enforceable
in accordance with their respective terms (except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally or by general equity principles).
(k) Compliance with Laws. It and each of its subsidiaries:
(1) is in compliance with all applicable federal, state, local and
foreign statutes, laws, regulations, ordinances, rules, judgments,
orders or decrees applicable thereto or to the employees conducting such
businesses;
(2) has all permits, licenses, certificates of authority, orders,
and approvals of, and has made all filings, applications, and
registrations with, federal, state, local, and foreign governmental or
regulatory bodies that are required in order to permit it or such
subsidiary to carry on its business as it is presently conducted;
(3) has received since January 1, 1997 no notification or
communication from any Governmental Entity (including the OTS, the FDIC,
the Board of Governors of the Federal Reserve System (the "Federal
Reserve") and any other bank, insurance or securities regulatory
authorities) or the staff thereof (A) asserting that it or any of its
subsidiaries is not in compliance with any of the statutes, regulations
or ordinances that such Governmental Entity enforces; (B) threatening to
revoke any license, franchise, permit or governmental authorization; or
(C) threatening or contemplating revocation or limitation of, or which
would have the effect of revoking or limiting, FDIC deposit insurance
(nor, to its knowledge, do any grounds for any of the foregoing exist);
and
(4) is not required to give prior notice to any federal banking or
thrift agency of the proposed addition of an individual to its board of
directors or the employment of an individual as a senior executive.
A-11
(l) Litigation. Except as disclosed in its Reports filed with the SEC
prior to the date hereof, there are no criminal or administrative
investigations or hearings of, before or by any Governmental Entity, or
civil, criminal or administrative actions, suits, claims or proceedings of,
before or by any person (including any Governmental Entity) pending or, to
its knowledge, threatened, against it or any of its subsidiaries; and
neither it nor any of its subsidiaries (nor any officer, director,
controlling person or property of it or any of its subsidiaries) is a party
to or is subject to any order, decree, agreement, memorandum of
understanding or similar arrangement with, or a commitment letter or
similar submission to, any Governmental Entity charged with the supervision
or regulation of depository institutions or engaged in the insurance of
deposits (including, without limitation, the OTS, the Federal Reserve, the
FHLB and the FDIC) or the supervision or regulation of it or any of its
subsidiaries and neither it nor any of its subsidiaries has been advised by
any such Governmental Entity that such Governmental Entity is contemplating
issuing or requesting (or is considering the appropriateness of issuing or
requesting) any such order, decree, agreement, memorandum of understanding,
commitment letter or similar submission.
(m) Taxes. (1) The term "Tax" or "Taxes" includes any tax or similar
governmental charge, impost or levy (including, without limitation, income
taxes, franchise taxes, transfer taxes or fees, stamp taxes, sales taxes,
use taxes, excise taxes, ad valorem taxes, withholding taxes, employee
withholding taxes, worker's compensation, payroll taxes, unemployment
insurance, social security, minimum taxes or windfall profits taxes),
together with any related liabilities, penalties, fines, additions to tax
or interest, imposed by the United States or any state, county, provincial,
local or foreign government or subdivision or agency thereof.
(2) All federal, state and local Tax returns, including all
information returns, required to be filed by or on behalf of it or any of
its subsidiaries have been timely filed or requests for extensions have
been timely filed and any such extension shall have been granted and not
have expired, and all such filed returns are complete and accurate in all
material respects. Except as disclosed in its Reports, all Taxes
attributable to it or any of its subsidiaries that are or were due or
payable (without regard to whether such Taxes have been assessed) have been
paid in full or have been adequately provided for on its consolidated
balance sheet and consolidated statement of earnings or income (in
accordance with generally accepted accounting principles). Adequate
provision in accordance with generally accepted accounting principles
appropriately and consistently applied has been made in the Reports
relating to all Taxes for the periods covered thereby that were not yet due
and payable as of the dates thereof, regardless of whether the liability
for such Taxes is disputed. As of the date of this Agreement and except as
disclosed in its Reports, there is no outstanding audit examination,
deficiency, refund litigation or outstanding waivers or agreements
extending the applicable statute of limitations for the assessment or
collection of any Taxes for any period with respect to any Taxes of it or
its subsidiaries. All Taxes, interest, additions and penalties due with
respect to completed and settled examinations or concluded litigation
relating to it or any of its subsidiaries have been paid in full or have
been recorded on its or such subsidiary's balance sheet and consolidated
statement of earnings or income (in accordance with generally accepted
accounting principles). Neither it nor any of its subsidiaries is a party
to a tax sharing or similar agreement or any agreement pursuant to which it
or any of its subsidiaries has indemnified any party (other than it or one
of its subsidiaries) with respect to Taxes. The proper and accurate amounts
have been or will be withheld from all employees (and timely paid to the
appropriate Governmental Entity or set aside in an account for such
purposes) for all periods through the Closing Date in compliance with all
Tax withholding provisions of applicable federal, state, local and foreign
laws (including, without limitation, income, social security and employment
tax withholding for all types of compensation).
(n) Insurance. Each of it and its subsidiaries has taken all
requisite action (including without limitation the making of claims and the
giving of notices) pursuant to its directors' and officers' liability
insurance policy or policies in order to preserve all rights thereunder
with respect to all matters (other than matters arising in connection with
this Agreement and the transactions
A-12
contemplated hereby) that are known to it. It has Previously Disclosed a
list of all directors' and officers' liability insurance policies
maintained by it or its subsidiaries.
(o) Labor Matters. Neither it nor any of its subsidiaries is a party
to, or is bound by, any collective bargaining agreement, contract or other
agreement or understanding with a labor union or labor organization, nor is
it or any of its subsidiaries the subject of any material proceeding
asserting that it or any such subsidiary has committed an unfair labor
practice or seeking to compel it or such subsidiary to bargain with any
labor organization as to wages or conditions of employment, nor is there
any strike involving it or any of its subsidiaries pending or, to its
knowledge, threatened, nor is it aware of any activity involving its or any
of its subsidiaries' employees seeking to certify a collective bargaining
unit or engaging in any other organizational activity.
(p) Employee Benefits. (1) As of the date of this Agreement, it has
Previously Disclosed a list of all bonus, deferred compensation, pension,
retirement, profit-sharing, thrift, savings, employee stock ownership,
stock bonus, stock purchase, restricted stock and stock option plans, all
material employment or severance contracts, consulting agreements and all
other material employee benefit plans that cover employees, former
employees, directors or independent contractors (and their spouses,
dependents or beneficiaries) of it and its subsidiaries (its "Compensation
Plans"). True and complete copies of the Compensation Plans (and, as
applicable, copies of summary plan descriptions, governmental filings (on
Form 5500 series or otherwise), actuarial reports and reports under
Financial Accounting Standards Board Statement No. 106 relating thereto)
and all other benefit plans, contracts or arrangements (regardless of
whether they are funded or unfunded or foreign or domestic) covering
current or former employees, directors or independent contractors (and
their spouses, dependents or beneficiaries) of it or its subsidiaries (its
"Employees"), including, but not limited to, "employee benefit plans"
within the meaning of Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), and all amendments thereto,
have been made available to the other party.
(2) Except as disclosed in its Reports or as provided in this
Agreement, the transactions contemplated by this Agreement and the Stock
Option Agreements will not result in the vesting or acceleration of any
amounts under any Compensation Plan, any material increase in benefits
under any Compensation Plan or payment of any severance or similar
compensation under any Compensation Plan.
(3) All of its and its subsidiaries' employee benefit plans, within
the meaning of Section 3(3) of ERISA, other than "multiemployer plans"
within the meaning of Section 3(37) or 4001(a)(3) of ERISA, covering
Employees (collectively, its "Plans") are in compliance with the applicable
provisions of ERISA and the Internal Revenue Code, and other applicable
laws in all material respects. Each of its Plans which is an "employee
pension benefit plan" within the meaning of Section 3(2) of ERISA ("Pension
Plan") and which is intended to be qualified under Section 401(a) of the
Internal Revenue Code has received a favorable determination letter from
the Internal Revenue Service, and it is not aware of any circumstances
likely to result in revocation of any such favorable determination letter.
There is no pending or, to its knowledge, threatened litigation relating to
its Plans. Neither it nor any of its subsidiaries has engaged in a
transaction with respect to any Plan that could subject it or any of its
subsidiaries to a tax or penalty imposed by either Section 4975 of the
Internal Revenue Code or Section 502(i) of ERISA.
(4) No liability under Subtitle C or D of Title IV of ERISA (other
than payment of applicable premiums) has been or is expected to be incurred
by it or any of its subsidiaries with respect to any ongoing, frozen or
terminated "single-employer plan", within the meaning of Section
4001(a)(15) of ERISA, currently or formerly maintained by any of them, or
the single-employer plan of any entity which is considered one employer
with it under Section 4001 of ERISA or Section 414 of the Internal Revenue
Code (an "ERISA Affiliate"). It and its subsidiaries and ERISA Affiliates
have not incurred and do not expect to incur any material withdrawal
liability with respect to a multiemployer plan under Subtitle E of Title IV
of ERISA (regardless of whether based on contributions of an
A-13
ERISA Affiliate), nor has it or any of its subsidiaries or ERISA Affiliates
been notified by any multiemployer plan to which it or any of its
subsidiaries or ERISA Affiliates is contributing, or may be obligated to
contribute, that such multiemployer plan is currently in reorganization or
insolvency under and within the meaning of Section 4241 or 4245 of ERISA or
that such multiemployer plan intends to terminate or has been terminated
under Section 4041A of ERISA. No notice of a "reportable event", within the
meaning of Section 4043 of ERISA, for which the 30-day reporting
requirement has not been waived, has been required to be filed for any of
its Pension Plans or by any of its ERISA Affiliates within the 12-month
period ending on the date hereof. Neither it, its subsidiaries nor any of
their respective ERISA Affiliates has incurred or is aware of any facts
that are reasonably likely to result in any liability pursuant to Section
4069 or 4204 of ERISA.
(5) All material contributions required to be made by it and its
subsidiaries under the terms of any of its Plans have been timely made or
have been reflected on its Financial Statements. Neither any of its Pension
Plans nor any single-employer plan of any of its ERISA Affiliates has an
"accumulated funding deficiency" (whether or not waived) within the meaning
of Section 412 of the Internal Revenue Code or Section 302 of ERISA. None
of it, its subsidiaries or its ERISA Affiliates has provided, or is
required to provide, security to any Pension Plan or to any single-employer
plan of an ERISA Affiliate pursuant to Section 401(a)(29) or 412(f)(3) of
the Internal Revenue Code or Section 306, 307 or 4204 of ERISA.
(6) Under each of its and its ERISA Affiliates' Pension Plans which is
a single-employer plan, as of the last day of the most recent plan year
ended prior to the date of this Agreement, the actuarially determined
present value of all "benefit liabilities", within the meaning of Section
4001(a)(16) of ERISA (as determined on the basis of the actuarial
assumptions contained in the Pension Plan's most recent actuarial
valuation), did not exceed the then current value of the assets of such
Pension Plan, and to its knowledge, there has been no change in the
financial condition of such Pension Plan since the last day of the most
recent plan year which reasonably could be expected to change such
conclusion. There would be no withdrawal liability of it and its
subsidiaries under each benefit plan which is a multiemployer plan to which
it, its subsidiaries or its ERISA Affiliates has contributed during the
preceding 12 months, if such withdrawal liability were determined as if a
"complete withdrawal", within the meaning of Section 4203 of ERISA, had
occurred as of the date hereof.
(7) Except as disclosed in its Reports, neither it nor its
subsidiaries have any obligations for retiree health and life benefits.
(8) There are no restrictions on the rights of it or its subsidiaries
to amend or terminate any Plan without incurring any liability thereunder
in addition to normal liabilities for benefits.
(q) Environmental Matters. (1) For purposes of this Section 5.3(q),
the following terms shall have the indicated meaning:
"Business" means the business conducted by it and its subsidiaries.
"Environmental Law" means any federal, state, local or foreign law,
regulation, agency policy, order, decree, judgment or judicial opinion
or any agreement with any Government Entity, presently in effect or
hereinafter adopted relating to (A) the manufacture, generation,
transport, use, treatment, storage, recycling, disposal, release,
threatened release or presence of Hazardous Substances or (B) the
preservation, restoration or protection of the environment, natural
resources or human health.
"Hazardous Substances" means substances which are: (A) listed,
classified or regulated pursuant to any Environmental Law; (B) any
petroleum products or by-products, asbestos containing material,
polychlorinated biphenyls ("PCBs"), radioactive materials or radon gas;
or (C) any other matter to which exposure is prohibited, limited or
regulated by any government authority or Environmental Law.
A-14
"Subject Property" means (A) all real property at which the
businesses of it or any of its subsidiaries have been conducted, all
property in which it or any of its subsidiaries holds a security or
other interest (including, without limitation, a fiduciary interest),
and, where required by the context, includes any such property where
under any Environmental Law it or any of its subsidiaries constitutes
the owner or operator of such property, but only with respect to such
property, (B) any facility in which it or any of its subsidiaries
participates in the management, including, where required by the
context, participating in the management of the owner or operator of
such property, and (C) all other real property which for purposes of any
Environmental Law it or any of its subsidiaries otherwise could be
deemed to be an owner or operator or otherwise control.
(2) To its knowledge, it and each of its subsidiaries and the Subject
Property are, and have been, in compliance with all Environmental Laws and
there are no circumstances that with the passage of time or the giving of
notice would be reasonably likely to result in noncompliance.
(3) To its knowledge, there are no pending or threatened claims,
actions, investigations, notices of non-compliance, information requests or
notices of potential responsibility or proceedings involving it or any of
its subsidiaries or any Subject Property relating to:
(A) an asserted liability of it or any of its subsidiaries or any
prior owner, occupier or user of Subject Property under any
Environmental Law or the terms and conditions of any permit, license,
authority, settlement, agreement, decree or other obligation arising
under any Environmental Law;
(B) the handling, storage, use, transportation, removal or disposal
of Hazardous Substances;
(C) the actual or threatened discharge, release or emission of
Hazardous Substances from, on or under or within Subject Property into
the air, water, surface water, ground water, land surface or subsurface
strata; or
(D) personal injuries or damage to property related to or arising
out of exposure to Hazardous Substances;
and, to its knowledge, there is no reasonable basis for any of the
foregoing.
(4) To its knowledge, there are no storage tanks underground or
otherwise present on the Subject Property or, if present, all such tanks
are not leaking and are in full compliance with any Environmental Law. To
its knowledge, with respect to any Subject Property, it and its
subsidiaries do not own, possess or control any PCBs, PCB-contaminated
fluids, wastes or equipment, and it and its subsidiaries do not own,
possess or control any asbestos or asbestos-containing material. To its
knowledge, no Hazardous Substances have been used, handled, stored,
discharged, released or emitted, or are threatened to be discharged,
released or emitted, at or on any Subject Property, except for those types
and quantities of Hazardous Substances typically used in an office
environment and which have not created conditions requiring remediation
under any Environmental Law.
(5) To its knowledge and except for investigation or monitoring by the
Environmental Protection Agency or similar state agencies in the ordinary
course, no part of the Subject Property has been or is scheduled for
investigation or monitoring pursuant to any Environmental Law.
(r) Risk Management Instruments. All swaps, caps, floors, option
agreements, futures and forward contracts and other similar risk management
arrangements, whether entered into for its own account, or for the account
of one or more of its subsidiaries or their customers, were entered into
(1) in accordance with prudent business practices and all applicable laws,
rules, regulations and regulatory policies and (2) with counterparties
believed to be financially responsible at the time; and each of them
constitutes the valid and legally binding obligation of it or one of its
subsidiaries, enforceable in accordance with its terms (except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and similar laws of general
applicability relating to or affecting creditors' rights or by general
equity principles), and are in full
A-15
force and effect. Neither it nor its subsidiaries, nor to its knowledge any
other party thereto, is in breach of any of its obligations under any such
agreement or arrangement.
(s) Material Agreements. (1) As of the date of this Agreement,
without giving effect to the proviso of Section 5.1(a) and to Section 5.2,
except for (A) the Stock Option Agreements, and (B) arrangements made after
the date and in accordance with the terms of this Agreement, it and its
subsidiaries are not bound by any material contract (as defined in Item
601(b)(10) of Regulation S-K under the Securities Act, but without giving
effect to the ordinary course of business exception provided for therein)
to be performed after the date hereof that has not been filed with or
incorporated by reference in its Reports.
(2) None of it nor any of its subsidiaries is in default under any
contract, agreement, commitment, arrangement, indenture, lease, insurance
policy or other instrument.
(t) Knowledge as to Conditions. (1) As of the date of this Agreement,
it knows of no reason why any regulatory approvals and, to the extent
necessary, any other approvals, authorizations, filings, registrations, and
notices should not be obtained without the imposition of any condition or
restriction described in the proviso to Section 7.1(b), or why the
accountants' letters referred to in Section 7.1(g) or the opinions of tax
counsel referred to in Sections 7.2(d) and 7.3(c) cannot be obtained.
(2) In the case of the representations and warranties made by Xxxxxx,
as of the date hereof, Xxxxxx knows of no reason why either of the
transactions (the "Pending Transactions") contemplated by (A) the Agreement
and Plan of Merger, dated June 28, 1999 by and among Xxxxxx, Xxxxxx United
Bank, a New Jersey bank and wholly owned subsidiary of Xxxxxx, JeffBanks,
Inc., a Pennsylvania corporation, Jefferson Bank, a Pennsylvania bank and
wholly owned subsidiary of JeffBanks, and Jefferson Bank of New Jersey, a
New Jersey bank and wholly owned subsidiary of JeffBanks, and (B) the
Agreement and Plan of Merger, dated June 28, 1999, by and among Xxxxxx,
Xxxxxx United Bank and Southern Jersey Bancorp of Delaware, Inc., a
Delaware corporation, and Farmers and Merchants National Bank, a national
banking association, should not be consummated. In case either or both of
the Pending Transactions shall fail to be consummated, such mere failure,
in and of itself, shall not constitute a breach of any provision of this
Agreement or give Dime any right of termination hereunder.
(u) Year 2000 Compliance. (1) All computer software and hardware used
in its businesses is Year 2000 Compliant (as defined below) or is
scheduled, according to an internal plan and budget, to be Year 2000
Compliant prior to December 31, 1999.
(2) It has disclosed to the other party its plans for evaluating
whether the business conducted by it or its subsidiaries is Year 2000
Compliant. Neither it or its subsidiaries has received any written notice
or, to its knowledge, oral notice from any Governmental Entity which
indicates that such Governmental Entity considers or would consider the
businesses conducted by it or its subsidiaries not to be Year 2000
Compliant.
(3) "Year 2000 Compliant" means, with respect to any computer software
or hardware and other processing capabilities of a party, that such
software or hardware and processing capabilities are able, in all material
respects, accurately to process date and time data (including calculating,
comparing, and sequencing) from, into and between the years 1999 and 2000
and leap year calculations, and will not generate erroneous data or cause a
system to fail because of a date of the year 1999 or greater or spanning
the years 1999 and 2000.
(v) Brokers and Finders. None of it, its subsidiaries or any of their
officers, directors or employees has employed any broker or finder or
incurred any liability for any brokerage fees, commissions or finder's fees
in connection with the transactions contemplated herein, except that Xxxxxx
has retained Xxxxxxx, Xxxxx & Co. as its financial advisor and Dime has
retained Credit Suisse First Boston as its financial advisor, the
arrangements with which have been disclosed in writing to the other party
prior to the date hereof.
A-16
ARTICLE VI
COVENANTS
6.1 Conduct of Business Pending the Effective Time. Each of Dime and
Xxxxxx agrees as to itself and its subsidiaries that, from and after the date
hereof until the Effective Time, except insofar as the other party shall
otherwise consent in writing (such consent not to be unreasonably withheld or
delayed) or except as otherwise expressly contemplated by this Agreement or the
Stock Option Agreements or as Previously Disclosed:
(a) The business of it and its subsidiaries will be conducted only in
the ordinary and usual course and, to the extent consistent therewith, it
and its subsidiaries will use all reasonable efforts to preserve intact
their business organizations and assets and maintain their rights,
franchises and existing relations with customers, suppliers, employees and
business associates and to take no action that would (1) adversely affect
the ability of any of them to obtain any necessary approvals of
Governmental Entities required for the transactions contemplated hereby
without imposition of a condition or restriction of the type referred to in
the proviso to Section 7.1(b), (2) adversely affect its ability to perform
its obligations under this Agreement or the Stock Option Agreements or (3)
be reasonably likely to result in a Material Adverse Effect.
(b) It will not (1) sell or pledge or agree to sell or pledge or
permit any Lien to exist on any stock owned by it of any of its material
subsidiaries; (2) amend its certificate of incorporation or by-laws; (3)
split, combine or reclassify any outstanding capital stock; (4) other than
as permitted by Section 6.2, declare, set aside or pay any dividend payable
in cash, stock or other property with respect to any of its capital stock;
or (5) repurchase, redeem or otherwise acquire, or permit any subsidiary to
purchase or otherwise acquire, directly or indirectly, any shares of its
capital stock or any securities convertible into or exercisable for any
shares of its capital stock (other than such capital stock repurchased
pursuant to the Dime Stock Plans and the Xxxxxx Stock Plans, as the case
may be).
(c) Notwithstanding anything to the contrary contained in Section 6.3,
neither it nor any of its subsidiaries will (1) issue, sell, pledge,
dispose of or encumber, or authorize or propose the issuance, sale, pledge,
disposition or encumbrance of, any shares of, or securities convertible or
exchangeable for, or options, warrants, calls, commitments or rights of any
kind to acquire, any shares of its capital stock of any class, with the
exception of Dime Common Stock or Xxxxxx Common Stock issuable as of the
date hereof pursuant to the Dime Stock Plans or Xxxxxx Stock Plans,
respectively, consistent with past practice, and the Stock Option
Agreements; (2) transfer, lease, license, guarantee, sell, mortgage, pledge
or dispose of any other material property or assets or encumber any
property or assets other than to a direct or indirect wholly owned
subsidiary of it; (3) cancel, release, assign or modify any material amount
of indebtedness of any other individual, corporation or other entity
(collectively, a "Person") other than in the ordinary and usual course of
business; or (4) authorize capital expenditures other than in the ordinary
and usual course of business.
(d) Except as expressly contemplated in this Agreement and except for
internal reorganizations involving existing subsidiaries, neither it nor
any of its subsidiaries will make any material acquisition of, or
investment in, assets or stock of any other Person not in the ordinary and
usual course of business.
(e) Other than in the ordinary course of business consistent with past
practice, it will not incur or permit any of its subsidiaries to incur any
indebtedness for borrowed money or assume, guarantee, endorse or otherwise
as an accommodation become responsible for the obligations of any other
Person or make any loan or advance.
(f) Except as required by agreements or arrangements Previously
Disclosed or as provided in Section 6.1(k) or as contemplated by Article
III, neither it nor any of its subsidiaries will (1) grant any increase in
compensation or benefits to its Employees or to its officers, except for
normal increases consistent with past practice or as required by law; (2)
pay any bonus except as consistent
A-17
with past practice; (3) grant any severance or termination pay to any
director, officer or other of its Employees except as consistent with past
practice; (4) enter into or amend any employment or severance agreement
with any director, officer or other of its Employees (provided that this
clause (4) shall not prohibit either party from approving a renewal or
other extension of an existing employment or severance agreement in
accordance with its terms and in the ordinary course of business); (5)
grant any increase in fees or other increases in compensation or other
benefits to any of its present or former directors; or (6) effect any
change in retirement benefits for any class of its Employees or officers
(unless such change is required by applicable law or, in the written
opinion of counsel, is necessary or advisable to maintain the tax
qualification of any plan under which the retirement benefits are
provided); provided, however, that nothing in this Section 6.1 shall
prevent Dime from renegotiating, amending or modifying the current
Employment Agreement with Xx. Xxxx provided that (i) any additional
benefits provided to Xx. Xxxx thereunder are commensurate with those to be
provided to Xx. Xxxxxxx subsequent to the Effective Time under the
Employment Agreement with Xx. Xxxxxxx and that such amendment or
modification shall not extend Xx. Xxxx'x employment beyond that permitted
by the provisions of Article III of this Agreement and (ii) such amendment
or modification is approved by the Compensation Committee or other similar
committee of the Board of Directors of Dime.
(g) Except as provided in Section 6.1(k) and as may be required to
satisfy contractual obligations existing as of the date hereof and the
requirements of applicable law, neither it nor any of its subsidiaries will
establish, adopt, enter into or make any new, or amend any existing,
collective bargaining, bonus, profit sharing, thrift, compensation, stock
option, restricted stock, pension, retirement, employee stock ownership,
deferred compensation, employment, termination, severance or other plan,
agreement, trust, fund, policy or arrangement for the benefit of any
directors, officers or employees.
(h) Neither it nor any of its subsidiaries will implement or adopt any
change in its accounting principles, practices or methods, other than as
may be required by generally accepted accounting principles.
(i) Neither it nor any of its subsidiaries shall make any tax
election, other than in the ordinary course of business.
(j) Neither it nor any of its subsidiaries will authorize or enter
into an agreement to take any of the actions referred to in paragraphs (a)
through (i) above.
(k) Notwithstanding the provisions of Sections 6.1(f) and (g) herein,
each party hereto shall be permitted to take, or authorize or agree to
take, any of the actions contemplated in such Sections without the consent
of the other party, if such action (1) is reasonably necessary to qualify
for, or preserve, an exemption of certain transactions from the operation
of Section 16(b) of the Exchange Act in accordance with the provisions of
SEC Rule 16b-3, as amended, or (2) is Previously Disclosed.
6.2 Dividends. Unless Dime and Xxxxxx otherwise agree in writing, neither
Dime nor Xxxxxx will declare or pay any dividend or distribution on shares of
their capital stock, whether payable in cash, stock or other property, other
than (a) dividends from subsidiaries of Dime or Xxxxxx to Dime or Xxxxxx or to
another subsidiary of Dime or Xxxxxx, as applicable, consistent with past
practice or (b) regular quarterly dividends or distributions, provided that (1)
such dividends or distributions, and their corresponding record dates and
payment dates, are coordinated between the parties and are in the ordinary
course consistent with past practice and (2) such dividends or distributions are
not in amounts exceeding $0.25 per quarter in the case of Xxxxxx and $0.06 per
quarter in the case of Dime, subject to and consistent with each party's normal
practice for scheduled increases in the rate of dividends paid on its common
stock.
6.3 Acquisition Proposals. Each of Dime and Xxxxxx agrees that neither it
nor any of its subsidiaries nor any of its respective officers and directors or
the officers and directors of its subsidiaries shall, and it shall direct and
use all reasonable efforts to cause its employees, agents and representatives
A-18
(including, without limitation, any investment banker, attorney or accountant
retained by it or any of its subsidiaries) not to, initiate, solicit or
encourage, directly or indirectly, any inquiries or the making or implementation
of any proposal or offer with respect to a merger, acquisition, consolidation or
similar transaction involving, or any purchase of all or any substantial part of
the assets or any equity securities of, it or any of its subsidiaries (any such
proposal or offer being hereinafter referred to as an "Acquisition Proposal") or
engage in any negotiations concerning, or provide any confidential information
or data to, or have any discussions with, any such person relating to an
Acquisition Proposal. Xxxxxx will notify Dime, and Dime will notify Xxxxxx,
immediately if any such inquiries or proposals are received by, any such
information is requested from, or any such negotiations or discussions are
sought to be initiated or continued with, it.
6.4 Stockholder Approvals; Election of Directors. Each of Dime and Xxxxxx
agrees to take, in accordance with applicable law and its respective certificate
of incorporation and by-laws, all action necessary to convene a meeting of
holders of Dime Common Stock (the "Dime Meeting") and Xxxxxx Common Stock (the
"Xxxxxx Meeting"), respectively, as promptly as practicable after the
Registration Statement (as defined in Section 6.5) is declared effective to
consider and vote upon the adoption of the agreement of merger (within the
meaning of Section 252 of the DGCL) or plan of merger (within the meaning of
Section 14A: 10-3 of the NJBCA) contained in this Agreement. The Board of
Directors of each of Dime and Xxxxxx will recommend such adoption, and each of
Dime and Xxxxxx will take all reasonable action to solicit such adoption by its
respective stockholders, and the Governance and Nominating Committee of the
Board of Directors of Dime will nominate the Former Xxxxxx Directors (as
designated pursuant to Section 3.2(a)) for, and prior to the Effective Time
Dime's Board of Directors will adopt such resolutions necessary for, the
election of such persons as directors of the Surviving Corporation, with such
election to take effect at the Effective Time.
6.5 Filings; Other Actions. (a) Each of Dime and Xxxxxx agrees to
cooperate in the preparation of a registration statement on Form S-4 to be filed
by Dime with the SEC in connection with the issuance of Surviving Corporation
Common Stock in the Merger (including the joint proxy statement and prospectus
and other proxy solicitation materials of Dime and Xxxxxx constituting a part
thereof (the "Joint Proxy Statement"), the "Registration Statement"). Dime
agrees to use all reasonable efforts to cause the Registration Statement to be
declared effective under the Securities Act as promptly as practicable after
filing thereof. Dime also agrees to use all reasonable efforts to obtain all
necessary state securities law permits and approvals required to carry out the
transactions contemplated by this Agreement, and Xxxxxx agrees to furnish all
information concerning Xxxxxx and the holders of Xxxxxx Common Stock as may be
reasonably requested in connection with any such action.
(b) Each of Dime and Xxxxxx agrees to cooperate and consult with the other
and, on the terms and subject to the conditions set forth in this Agreement, use
reasonable efforts to prepare and file all necessary documentation, to effect
all necessary applications, notices, petitions, filings and other documents, and
to obtain all necessary permits, consents, orders, approvals and authorizations
of, or any exemption by, all third parties and Governmental Entities necessary
or advisable to consummate the transactions contemplated by this Agreement. Each
of Dime and Xxxxxx shall have the right to review in advance, and to the extent
practicable each will consult with the other, in each case subject to applicable
laws relating to the exchange of information, with respect to all the
information relating to the other party, and any of their respective
subsidiaries, which appear in any filing made with, or written materials
submitted to, any third party or any Governmental Entity in connection with the
transactions contemplated by this Agreement. In exercising the foregoing right,
each of the parties hereto agrees to act reasonably and as promptly as
practicable. Each party hereto agrees to keep the other party apprised of the
status of matters relating to completion of the transactions contemplated
hereby.
(c) Each party agrees, upon request, to furnish the other party with all
information concerning itself, its subsidiaries, directors, officers and
stockholders and such other matters as may be reasonably necessary or advisable
in connection with the Registration Statement or Joint Proxy Statement or any
other statement, filing, notice or application made by or on behalf of such
other party or any of its subsidiaries
A-19
to any Governmental Entity in connection with the Merger and the other
transactions contemplated by this Agreement.
(d) Each of Dime and Xxxxxx agrees to consult and cooperate with the other
in effecting actions and measures for the purpose of ensuring the orderly
consummation of the transactions contemplated hereby and the efficient conduct
of the combined businesses of Dime and Xxxxxx following the Merger. Without
limiting the foregoing, each of Dime and Xxxxxx agrees, to the extent consistent
with applicable law, to consult and cooperate with the other in (1) developing a
joint business plan for periods beginning at the Effective Time and (2) taking
reasonable steps in an effort to enable the Surviving Corporation to achieve the
objectives stated in such joint business plan.
6.6 Information Supplied. Each of Xxxxxx and Dime agrees, as to itself
and its subsidiaries, that none of the information supplied or to be supplied by
it for inclusion or incorporation by reference in (a) the Registration Statement
will, at the time the Registration Statement and each amendment and supplement
thereto, if any, become effective under the Securities Act, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, and
(b) the Joint Proxy Statement and any amendment or supplement thereto will, at
the date of mailing to stockholders and at the times of the Dime Meeting and the
Xxxxxx Meeting to be held in connection with this Agreement, contain any
statement which, in the light of the circumstances under which such statement is
made, will be false or misleading with respect to any material fact, or which
will omit to state any material fact necessary in order to make the statements
therein not false or misleading or necessary to correct any statement in any
earlier statement in the Joint Proxy Statement or any amendment or supplement
thereto. Neither the Joint Proxy Statement nor the Registration Statement shall
be filed, and, prior to the termination of this Agreement, no amendment or
supplement to the Joint Proxy Statement or the Registration Statement shall be
filed, by Dime or Xxxxxx without consultation with the other party and its
counsel.
6.7 Accountants' Letters. Dime agrees to use all reasonable efforts to
cause to be delivered to Xxxxxx a letter of KPMG LLP, independent auditors to
Dime, and Xxxxxx agrees to use all reasonable efforts to cause to be delivered
to Dime a letter of Xxxxxx Xxxxxxxx, independent auditors to Xxxxxx, each dated
(1) the date on which the Registration Statement shall become effective and (2)
a date shortly prior to or on the Closing Date, and addressed to such other
party in form and substance customary for "comfort" letters delivered by
independent accountants in connection with registration statements similar to
the Registration Statement.
6.8 Access. Upon reasonable notice, each party agrees to (and shall cause
each of its subsidiaries to) afford the other party's officers, employees,
counsel, accountants and other authorized representatives ("Representatives")
access, during normal business hours throughout the period until the Closing
Date, to its properties, books, contracts and records and, during such period,
shall (and shall cause each of its subsidiaries to) furnish promptly to the
other party all information concerning its business, properties and personnel as
may reasonably be requested; provided that no investigation pursuant to this
Section 6.8 shall affect or be deemed to modify any representation or warranty
made by the party furnishing such information. Each party will not, and will
cause its respective Representatives not to, use any information obtained
pursuant to this Section 6.8 for any purpose unrelated to the consummation of
the transactions contemplated by this Agreement. Subject to the requirements of
applicable law, pending consummation of the transactions herein contemplated,
each party conducting an investigation hereunder will keep confidential, and
will cause its Representatives to keep confidential, all information and
documents obtained from the other party pursuant to this Section 6.8 or during
the investigation leading up to the execution of this Agreement. The agreements
between Dime and Xxxxxx regarding the confidentiality of such information in
effect at the date hereof (the "Confidentiality Agreements") shall continue and
survive in full force and effect until the Effective Time or, in the event this
Agreement is terminated, shall continue in accordance with the terms thereof.
Upon any termination of this Agreement, each party will collect and deliver to
the other party all nonpublic documents obtained by it or any of its
Representatives and then in their possession and any copies thereof and destroy
or cause to be destroyed all notes, memoranda or other documents in the
possession of it or of its Representatives containing or reflecting any
A-20
nonpublic information obtained from the other party, except to the extent that
any such information may be embodied in minutes of the meetings of such party's
Board of Directors or in filings, reports or submissions to or with any
Governmental Entity.
6.9 Notification of Certain Matters. Each of Dime and Xxxxxx will give
prompt notice to the other of any fact, event or circumstance known to it that
(a) is reasonably likely to result in any Material Adverse Effect, (b) would
cause or constitute a material breach of any of the representations, warranties,
covenants or agreements of such party contained herein or (c) is reasonably
likely to result in the failure of a condition to consummation set forth in
Article VII to be satisfied on or prior to June 30, 2000.
6.10 Publicity. The initial press release relating hereto will be a joint
press release and thereafter Xxxxxx and Dime shall consult with each other prior
to issuing any press releases or otherwise making public statements with respect
to the transactions contemplated hereby and prior to making any filings with any
Governmental Entity or with the NYSE or the NASD with respect thereto.
6.11 Benefit Plans. (a) At or as promptly as practicable following the
Effective Time, the Surviving Corporation and its subsidiaries will adopt
employee benefit plans (including, without limitation, severance plans) covering
persons who become and remain employees of the Surviving Corporation or its
subsidiaries and who were immediately prior to the Effective Time employees of
Dime or its subsidiaries (the "Former Dime Employees") or employees of Xxxxxx or
its subsidiaries (the "Former Xxxxxx Employees") or will amend existing plans to
provide coverage for Former Dime Employees and Former Xxxxxx Employees. It is
the express understanding and intention of the parties that no Former Dime
Employee or Former Xxxxxx Employee or other person shall be deemed to be a third
party beneficiary, or have or acquire any right to enforce the provisions, of
this Section 6.11(a), and that nothing in this Agreement shall be deemed to
constitute a Plan or an amendment to a Plan.
(b) Each of Dime and Xxxxxx agrees, with respect to any Pension Plans
maintained by them or any of their subsidiaries with respect to which the
"remedial amendment period" described in Revenue Procedure 99-23, 1999-16 I.R.B.
5 (4/19/99), and any subsequent pronouncement by the Internal Revenue Service
extending or modifying the remedial amendment period as so described, ends prior
to the Closing Date and with respect to any amendments to such plans required to
be adopted before the end of such remedial amendment period, that to the extent
a determination letter with respect to the qualification of such Pension Plan or
Plans under the Internal Revenue Code reflecting such amendments has not been
obtained, an application for such a letter shall be filed with the Internal
Revenue Service on or before the last day of such remedial amendment period.
6.12 Expenses. Each of the parties shall bear and pay all costs and
expenses incurred by it or on its behalf in connection with the transactions
contemplated hereunder, including fees and expenses of its own financial or
other consultants, investment bankers, accountants and counsel, except that Dime
and Xxxxxx each shall bear and pay one-half of the following expenses: (a) the
costs (excluding the fees and disbursements of counsel, financial advisors and
accountants) incurred in connection with the preparation (including copying and
printing and distribution) of the Registration Statement, the Joint Proxy
Statement and applications to Governmental Entities for the approval of the
Merger and (b) all listing, filing or registration fees, including, without
limitation, fees paid for filing the Registration Statement with the SEC and
fees paid for filings with Governmental Entities.
6.13 Indemnification; Directors' and Officers' Insurance. (a) Each of
Dime and Xxxxxx agrees that, from and after the Effective Time, the Surviving
Corporation will indemnify and hold harmless each present and former director
and officer of Dime, Xxxxxx and their respective subsidiaries, determined as of
the Effective Time (the "Indemnified Parties"), against any costs or expenses
(including reasonable attorneys' fees), judgments, fines, losses, claims,
damages or liabilities (collectively, "Costs") incurred in connection with any
claim, action, suit, proceeding or investigation, whether civil, criminal,
administrative or investigative, arising out of or pertaining to matters
existing or occurring at or prior to the Effective Time, whether asserted or
claimed prior to, at or after the Effective Time, to the fullest extent that
Dime, Xxxxxx or such subsidiary would have been permitted under applicable law
of the jurisdiction of its incorporation and the certificate of incorporation or
by-laws of Dime, Xxxxxx or such subsidiary in effect
A-21
on the date hereof to indemnify such person (and the Surviving Corporation shall
also advance expenses as incurred to the fullest extent permitted under
applicable law; provided that the person to whom expenses are advanced provides
an undertaking to repay such advances if it is ultimately determined that such
person is not entitled to indemnification).
(b) To the extent that paragraph (a) shall not serve to indemnify and hold
harmless an Indemnified Party, for a period of six years after the Effective
Time, each of Dime and Xxxxxx agrees that the Surviving Corporation shall,
subject to the terms set forth herein, indemnify and hold harmless, to the
fullest extent permitted under applicable law (and the Surviving Corporation
shall also advance expenses as incurred to the fullest extent permitted under
applicable law, provided that the person to whom expenses are advanced provides
an undertaking to repay such advances if it is ultimately determined that such
person is not entitled to indemnification), each Indemnified Party against any
Costs incurred in connection with any claim, action, suit, proceeding or
investigation, whether civil, criminal, administrative or investigative, arising
out of or pertaining to the transactions contemplated by this Agreement. In the
event any claim or claims are asserted or made within such six-year period, all
rights to indemnification in respect of any such claim or claims shall continue
until final disposition of any and all such claims.
(c) For a period of six years from the Effective Time, the Surviving
Corporation shall provide that portion of directors' and officers' liability
insurance that serves to reimburse the present and former officers and directors
of Xxxxxx or any of its subsidiaries (determined as of the Effective Time) with
respect to claims against such directors and officers arising from facts or
events which occurred before the Effective Time, which insurance shall contain
at least the same coverage and amounts, and contain terms and conditions no less
advantageous, as that coverage currently provided by Xxxxxx.
(d) Any Indemnified Party wishing to claim indemnification under Section
6.13(a) or (b), upon learning of any such claim, action, suit, proceeding or
investigation, shall promptly notify the Surviving Corporation thereof, but the
failure to so notify shall not relieve the Surviving Corporation of any
liability it may have to such Indemnified Party if such failure does not
materially prejudice the Surviving Corporation. In the event of any such claim,
action, suit, proceeding or investigation (whether arising before or after the
Effective Time), the Surviving Corporation shall have the right to assume the
defense thereof and the Surviving Corporation shall not be liable to such
Indemnified Parties for any legal expenses of other counsel or any other
expenses subsequently incurred by such Indemnified Parties in connection with
the defense thereof, except that, if the Surviving Corporation elects not to
assume such defense or counsel for the Indemnified Parties advises that there
are issues which raise conflicts of interest between the Surviving Corporation
and the Indemnified Parties, the Indemnified Parties may retain counsel
satisfactory to them, and the Surviving Corporation shall pay all reasonable
fees and expenses of such counsel for the Indemnified Parties promptly as
statements therefor are received. If such indemnity is not available with
respect to any Indemnified Party, then the Surviving Corporation and the
Indemnified Party shall contribute to the amount payable in such proportion as
is appropriate to reflect relative faults and benefits.
6.14 Antitakeover Provisions. If any "business combination",
"moratorium", "control share" or other state antitakeover statute or regulation
(collectively, "Antitakeover Provisions") may become applicable to the
transactions contemplated hereby, each of Dime and Xxxxxx and the members of
their respective Boards of Directors will grant such approvals and take such
actions as are necessary so that the transactions contemplated by this Agreement
may be consummated as promptly as practicable on the terms contemplated hereby
and otherwise act to eliminate or minimize the effects of any Antitakeover
Provision on any of the transactions contemplated by this Agreement.
6.15 Affiliate Agreements. (a) As soon as practicable after the date
hereof, Dime shall identify to Xxxxxx and Xxxxxx shall identify to Dime all
persons who are at the date hereof (or at another reasonably proximate date)
possible "affiliates" of Dime or Xxxxxx, respectively, as that term is used in
paragraphs (c) and (d) of Rule 145 under the Securities Act and/or Accounting
Series Releases 130 and 135, as amended, of the SEC ("Affiliates"). Each of Dime
and Xxxxxx shall use their best efforts to obtain a written agreement in the
form of Annex 4(a) (for Affiliates of Xxxxxx) or 4(b) (for Affiliates of
A-22
Dime) from each person who is so identified as a possible Affiliate and shall
deliver copies of such written agreements to the other party as soon as
practicable.
(b) As soon as practicable after the date of the Dime Meeting or Xxxxxx
Meeting, as applicable, Dime shall identify to Xxxxxx and Xxxxxx shall identify
to Dime all persons who were, at the time of the Dime Meeting or the Xxxxxx
Meeting, possible Affiliates of Dime and Xxxxxx, respectively, and who were not
previously identified in accordance with Section 6.15(a). Each of Dime and
Xxxxxx shall use their best efforts to obtain a written agreement in the form of
Annex 4(a) or 4(b), as the case may be, from each person who is so identified
and shall deliver copies of such written agreements to the other party as soon
as practicable.
6.16 Stock Exchange Listing. The parties agree to use all reasonable
efforts to cause to be listed on the NYSE, subject to official notice of
issuance, the shares of Surviving Corporation Common Stock to be issued in the
Merger.
6.17 Efforts to Consummate. On the terms and subject to the conditions of
this Agreement, each of Dime and Xxxxxx agrees to use reasonable efforts to
take, or cause to be taken, all actions, and to do, or cause to be done, all
things necessary, proper or advisable to consummate and make effective, as soon
as practicable after the date of this Agreement, the transactions contemplated
hereby, 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 hereby.
6.18 Reports. Each of Dime and Xxxxxx agrees to file, and to cause its
respective subsidiaries to file, all reports required to be filed with all
Governmental Entities pursuant to the Securities Laws or Federal or state
banking laws between the date of this Agreement and the Effective Time, and to
deliver to the other party copies of all such reports promptly after the same
are filed.
6.19 Accounting and Tax Treatment. Neither Dime nor Xxxxxx will take,
cause or to the best of its ability permit to be taken any action that would
adversely affect the qualification of the Merger for pooling-of-interests
accounting treatment or the qualification of the Merger as a "reorganization"
within the meaning of Section 368 of the Internal Revenue Code; provided, that
nothing in this Section 6.19 shall preclude either party from exercising its
respective rights under the Stock Option Agreements.
6.20 Assumptions. The parties agree to take all reasonable action for the
Surviving Corporation to assume any guaranties or indentures to which Xxxxxx is
currently a party, including, without limitation, guaranties and indentures
associated with the Xxxxxx-guarantied mandatorily redeemable preferred capital
securities, Series B, of Xxxxxx Capital Trust I and Xxxxxx Capital Trust II
which hold solely junior subordinated debentures of Xxxxxx.
6.21 Bank Combination and Governance. The parties agree to take all
reasonable actions necessary prior to the Effective Time to cause the federal
savings bank subsidiary of Dime and New Jersey state-chartered commercial bank
subsidiary of Xxxxxx to be combined, in a manner to be determined, effective as
soon as possible after the Effective Time, as the Subsidiary Bank, so that (a)
the Subsidiary Bank is a New Jersey state-chartered commercial bank, (b) the
Board of Directors and senior executive officers of the Subsidiary Bank shall be
the same persons in the same positions as the Board of Directors and senior
executive officers of the Surviving Corporation and (c) the committees and
composition of committees of the Board of Directors of the Subsidiary Bank shall
be the same as the committees and composition of committees of the Board of
Directors of the Surviving Corporation.
A-23
ARTICLE VII
CONDITIONS
7.1 Conditions to Each Party's Obligation to Effect the Merger. The
respective obligation of each of Dime and Xxxxxx to consummate the Merger is
subject to the fulfillment or written waiver by Xxxx and Xxxxxx prior to the
Effective Time of each of the following conditions:
(a) Stockholder Approval. The agreement of merger contained in this
Agreement shall have been duly adopted by the holders of Dime Common Stock
and the holders of Xxxxxx Common Stock in accordance with Sections 251 and
252 of the DGCL and Section 14A: 10-3 of the NJBCA, as the case may be, and
each such stockholder approval shall be in accordance with other applicable
law.
(b) Governmental and Regulatory Consents. All approvals and
authorizations of, filings and registrations with, and notifications to,
all Governmental Entities required for the consummation of the Merger and
for the prevention of any termination of any material right, privilege,
license or agreement of either Dime or Xxxxxx or their respective
subsidiaries shall have been obtained or made and shall be in full force
and effect and all waiting periods required by law shall have expired;
provided, however, that none of the preceding shall be deemed obtained or
made if it shall be conditioned or restricted in a manner that would result
in a Material Adverse Effect on the Surviving Corporation.
(c) Third Party Consents. All consents or approvals of all persons
(other than Governmental Entities) required for or in connection with the
execution, delivery and performance of this Agreement and the consummation
of the Merger shall have been obtained and shall be in full force and
effect, unless the failure to obtain any such consent or approval is not
reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on the Surviving Corporation.
(d) Litigation. No Governmental Entity of competent jurisdiction
shall have enacted, issued, promulgated, enforced or entered any statute,
rule, regulation, judgment, decree, injunction or other order (whether
temporary, preliminary or permanent) that prohibits consummation of the
transactions contemplated by this Agreement.
(e) Registration Statement. The Registration Statement shall have
become effective under the Securities Act and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been initiated or threatened by the
SEC. All permits and other authorizations under the Securities Laws and
other authorizations necessary to consummate the transactions contemplated
hereby and to issue the shares of Surviving Corporation Common Stock to be
issued in the Merger shall have been received and be in full force and
effect.
(f) Listing. The shares of Surviving Corporation Common Stock to be
issued in the Merger shall have been approved for listing on the NYSE,
subject to official notice of issuance.
(g) Accountants' Pooling Letter. Each of Dime and Xxxxxx shall have
received a letter, dated as of the Effective Time, from KPMG LLP and Xxxxxx
Xxxxxxxx, their respective independent auditors, to the effect that the
Merger will qualify for pooling-of-interests accounting treatment under
Accounting Principles Board Opinion No. 16 and SEC Accounting Series
Releases 130 and 135, as amended, if consummated in accordance with this
Agreement.
(h) Employment Agreements. Unless Xx. Xxxxxxx or Xx. Xxxx is unable
or unwilling to serve in the capacity or capacities described therein, the
Employment Agreement for each of Xx. Xxxxxxx and Xx. Xxxx, respectively,
shall be in full force and effect.
7.2 Conditions to Obligation of Xxxxxx. The obligation of Xxxxxx to
consummate the Merger is also subject to the fulfillment or written waiver by
Xxxxxx prior to the Effective Time of each of the following conditions:
(a) Representations and Warranties. The representations and
warranties of Dime set forth in this Agreement shall be true and correct as
though made on and as of the Closing Date (except that
A-24
representations and warranties that by their terms speak as of the date of
this Agreement or some other date shall be true and correct as of such
date), and Xxxxxx shall have received a certificate, dated the Closing
Date, signed on behalf of Dime by the Chief Executive Officer and the Chief
Financial Officer of Dime to such effect.
(b) Performance of Obligations of Dime. Prior to the Effective Time,
the Board of Directors of Dime shall have adopted resolutions sufficient to
ensure that, at the Effective Time, (1) the composition of the Board of
Directors of the Surviving Corporation (including designation of directors
in particular classes of the Board of Directors of the Surviving
Corporation) shall be as designated under Section 3.2(a), including those
persons whom Xxxxxx shall have designated in writing to Dime pursuant to
Section 3.2(a), (2) the establishment and composition of committees of the
Board of Directors of the Surviving Corporation shall be as set forth in
Annex 3, including those persons whom Xxxxxx shall have designated in
writing to Dime pursuant to Section 3.2(c), and (3) the senior executive
officers of the Surviving Corporation shall be as set forth in Annex 5.
Dime shall have performed in all material respects all obligations required
to be performed by it under this Agreement at or prior to the Closing Date,
and Xxxxxx shall have received a certificate, dated the Closing Date,
signed on behalf of Dime by the Chief Executive Officer and the Chief
Financial Officer of Dime to such effect.
(c) Opinion of Counsel. Xxxxxx shall have received an opinion, dated
the Closing Date, of Xxxxxxxx & Xxxxxxxx, reasonably satisfactory to
Xxxxxx, to the effect that the shares of Surviving Corporation Common Stock
to be issued in the Merger, when issued in accordance with the terms
hereof, will be duly authorized, validly issued, fully paid and
nonassessable.
(d) Opinion of Tax Counsel. Xxxxxx shall have received an opinion
(based on customary assumptions and representations) of Pitney, Xxxxxx,
Xxxx & Xxxxx, counsel to Xxxxxx, dated the Closing Date, to the effect that
(1) the Merger is a "reorganization" within the meaning of Section 368(a)
of the Internal Revenue Code, (2) Dime and Xxxxxx are parties to such
"reorganization" and (3) the exchange in the Merger of shares of Xxxxxx
Common Stock for shares of Surviving Corporation Common Stock will not
result in the recognition of income, gain or loss to Dime, Xxxxxx or the
stockholders of Xxxxxx in each case for federal income tax purposes
(subject to customary exceptions and except to the extent of any cash paid
in lieu of fractional shares or any state and local transfer taxes paid on
behalf of a stockholder).
(e) Accountants' Letters. Xxxxxx and its directors and officers who
sign the Registration Statement shall have received the letters referred to
in Section 6.7 from KPMG LLP, as Dime's independent auditors.
7.3 Conditions to Obligation of Dime. The obligation of Dime to
consummate the Merger is also subject to the fulfillment or written waiver by
Dime prior to the Effective Time of each of the following conditions:
(a) Representations and Warranties. The representations and
warranties of Xxxxxx set forth in this Agreement shall be true and correct
as though made on and as of the Closing Date (except that representations
and warranties that by their terms speak as of the date of this Agreement
or some other date shall be true and correct as of such date) and Dime
shall have received a certificate, dated the Closing Date, signed on behalf
of Xxxxxx by the Chief Executive Officer and the Chief Financial Officer of
Xxxxxx to such effect.
(b) Performance of Obligations of Xxxxxx. Prior to the Effective
Time, Xxxxxx, in its capacity as sole shareholder of Xxxxxx United Bank,
shall have adopted resolutions sufficient to ensure that, at the Effective
Time, the composition of the Board of Directors of the Subsidiary Bank
shall be the same as the composition of the Board of Directors of the
Surviving Corporation at the Effective Time, including those persons whom
Dime shall have designated in writing to Xxxxxx pursuant to Section 3.2(a).
Prior to the Effective Time, the Board of Directors of Xxxxxx United Bank
shall have adopted resolutions, effective at the Effective Time, sufficient
to (1) elect the senior executive officers
A-25
of the Subsidiary Bank, as such officers are set forth in Annex 5 and (2)
establish and compose the committees of the Board of Directors of the
Subsidiary Bank in the same manner as the committees of the Board of
Directors of the Surviving Corporation at the Effective Time, pursuant to
Section 6.21, including those persons whom Dime shall have designated in
writing to Xxxxxx pursuant to Section 3.2(c). Xxxxxx shall have performed
in all material respects all obligations required to be performed by it
under this Agreement at or prior to the Closing Date, and Dime shall have
received a certificate, dated the Closing Date, signed on behalf of Xxxxxx
by the Chief Executive Officer and the Chief Financial Officer of Xxxxxx to
such effect.
(c) Opinion of Tax Counsel. Dime shall have received an opinion
(based on customary assumptions and representations) of Xxxxxxxx &
Xxxxxxxx, counsel to Dime, dated the Closing Date, to the effect that (1)
the Merger is a "reorganization" within the meaning of Section 368(a) of
the Internal Revenue Code and (2) Dime and Xxxxxx are parties to such
"reorganization".
(d) Accountants' Letters. Dime and its directors and officers who
sign the Registration Statement shall have received the letters referred to
in Section 6.7 from Xxxxxx Xxxxxxxx, as Xxxxxx'x independent auditors.
ARTICLE VIII
TERMINATION
8.1 Termination by Mutual Consent. This Agreement may be terminated and
the Merger may be abandoned at any time prior to the Effective Time, before or
after the approval by the stockholders of Dime and Xxxxxx, respectively, by the
mutual agreement of Dime and Xxxxxx, approved by their respective Boards of
Directors.
8.2 Termination by Xxxxxx Xxxx or Xxxxxx. This Agreement may be
terminated and the Merger may be abandoned by action of the Board of Directors
of either Dime or Xxxxxx if the Merger shall not have been consummated by June
30, 2000 or any approval or authorization of any Governmental Entity, the lack
of which would result in the failure to satisfy the closing condition set forth
in Section 7.1(b), shall have been denied by such Governmental Entity or such
Governmental Entity shall have requested the withdrawal of any application
therefor or indicated an intention to deny, or impose a condition of a type
referred to in the proviso to Section 7.1(b) with respect to, such approval or
authorization (provided, that the terminating party is not then in material
breach of its obligations under Section 6.4).
8.3 Termination by Xxxxxx. This Agreement may be terminated and the
Merger may be abandoned at any time prior to the Effective Time by action of the
Board of Directors of Xxxxxx (a) before or after the adoption by stockholders of
Xxxxxx referred to in Section 7.1(a), if Dime shall have breached any
representation, warranty, covenant or agreement contained herein that would
result in the failure to satisfy the closing condition set forth in Section
7.2(a) or 7.2(b) and such breach cannot be or has not been cured within 30 days
after the giving of a written notice to Dime of such breach or (b) before the
adoption and approval by stockholders of Xxxxxx referred to in Section 7.1(a),
if the Board of Directors of Dime shall have failed to recommend to its
stockholders the adoption of the plan of merger contained in this Agreement.
8.4 Termination by Dime. This Agreement may be terminated and the Merger
may be abandoned at any time prior to the Effective Time by action of the Board
of Directors of Dime (a) before or after the approval by the stockholders of
Dime referred to in Section 7.1(a), if Xxxxxx shall have breached any
representation, warranty, covenant or agreement contained herein that would
result in the failure to satisfy the closing condition set forth in Section
7.3(a) or 7.3(b) and such breach cannot be or has not been cured within 30 days
after the giving of a written notice to Xxxxxx of such breach or (b) before the
adoption by stockholders of Dime referred to in Section 7.1(a), if the Board of
Directors of Xxxxxx shall have failed to recommend to its stockholders the
adoption of the agreement of merger contained in this Agreement.
A-26
8.5 Effect of Termination and Abandonment. In the event of termination of
this Agreement and the abandonment of the Merger pursuant to this Article VIII,
no party to this Agreement shall have any liability or further obligation to any
other party hereunder except (a) as set forth in Section 9.1, (b) each of the
Stock Option Agreements shall be governed by its own terms as to termination and
(c) termination will not relieve a breaching party from liability for any breach
directly or indirectly giving rise to such termination.
ARTICLE IX
MISCELLANEOUS
9.1 Survival. Only those agreements and covenants of the parties that by
their express terms apply in whole or in part after the Effective Time shall
survive the Effective Time. All other representations, warranties, agreements
and covenants shall be deemed only to be conditions of the Merger and shall not
survive the Effective Time. If the Merger shall be abandoned and this Agreement
terminated, the provisions of Section 8.5 shall apply and the agreements of the
parties in Sections 6.8 (excluding the first sentence thereof), 6.10 and 6.12
shall survive such abandonment.
9.2 Modification or Amendment. (a) Subject to the applicable provisions
of the DGCL and the NJBCA, at any time prior to the Closing Date, the parties
hereto may modify or amend this Agreement, by written agreement executed and
delivered by duly authorized officers of the respective parties.
(b) At any time prior to the Effective Time, Dime and Xxxxxx may enter
into an amendment to this Agreement in accordance with Section 9.2(a) in order
to modify the structure of the Merger or the other transactions contemplated
hereby, or the manner of effecting such transactions; provided that after the
adoption of the agreement of merger contained in this Agreement by the
stockholders of Dime and Xxxxxx referred to in Section 7.1(a), no such amendment
shall adversely affect the consideration to be received by the stockholders of
Dime or Xxxxxx, respectively, unless such amendment is approved by such
stockholders of Dime or Xxxxxx, respectively, prior to the Effective Time.
9.3 Waiver of Conditions. The conditions to each party's obligation to
consummate the Merger are for the sole benefit of such party and may be waived
by such party in whole or in part to the extent permitted by applicable law. No
waiver shall be effective unless it is in a writing signed by a duly authorized
officer of the waiving party that makes express reference to the provision or
provisions subject to such waiver.
9.4 Counterparts and Facsimile. For the convenience of the parties
hereto, this Agreement may be executed in any number of separate counterparts,
each such counterpart being deemed to be an original instrument, and all such
counterparts shall together constitute the same agreement. Executed signature
pages to this Agreement may be delivered by facsimile and such facsimiles shall
be deemed as sufficient as if actual signature pages had been delivered.
9.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed entirely within such State.
9.6 Notices. Any notice, request, instruction or other document to be
given hereunder by any party to the other shall be in writing and shall be
deemed to have been duly given (i) on the date of delivery if delivered
personally, or by telecopy or telefacsimile, upon confirmation of receipt, (ii)
on the first business day following the date of dispatch if delivered by a
recognized next-day courier service, or (iii) on the third business day
following the date of mailing if delivered by registered or certified mail,
return receipt requested, postage prepaid. All notices hereunder shall be
delivered as set forth below, or pursuant to such other instructions as may be
designated in writing by the party to receive such notice.
A-27
(a) If to Xxxxxx:
Xxxxxx United Bancorp
0000 XxxXxxxxx Xxxxxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attention: Chairman & Chief Executive Officer
Telecopy: (000) 000-0000
with copies to:
Xxxxxx United Bancorp
0000 XxxXxxxxx Xxxxxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attention: General Counsel
Telecopy: (000) 000-0000
and
Xxxxxx, Xxxxxx, Xxxx & Xxxxx
000 Xxxxxx Xxxxx
Xxxxxxx Xxxx, Xxx Xxxxxx 00000-0950
Attention: Xxxxxx X. Xxxxx, Esq.
Xxxxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
(b) If to Dime:
Dime Bancorp, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Executive Officer
Telecopy: (000) 000-0000
with copies to:
Dime Bancorp, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Telecopy: (000) 000-0000
and
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
9.7 Entire Agreement, Etc. (a) This Agreement (including the Annexes
hereto and the Disclosure Letters), the Stock Option Agreements and the
Confidentiality Agreements constitute the entire agreement, and supersede all
other prior agreements, understandings, representations and warranties, both
written and oral, between the parties, with respect to the subject matter
hereof, and (b) this Agreement shall not be assignable by operation of law or
otherwise (any attempted assignment in contravention hereof being null and
void).
9.8 Definition of "subsidiary"; Covenants with Respect to
Subsidiaries. (a) When a reference is made in this Agreement to a subsidiary of
a person, the term "subsidiary" means those corporations, banks, savings banks,
associations and other entities of which such person owns or controls 25% or
more of the outstanding equity securities either directly or through an unbroken
chain of entities as to each of which 25% or more of the outstanding equity
securities is owned directly or indirectly by its parent; provided however,
that, except for purposes of Section 5.3(q), there shall not be included any
such entity
A-28
to the extent that the equity securities of such entity were acquired in
satisfaction of a debt previously contracted in good faith or are owned or
controlled in a bona fide fiduciary capacity.
(b) Insofar as any provision of this Agreement shall require a subsidiary
to take or omit to take any action, such provision shall be deemed a covenant by
Dime or Xxxxxx, as the case may be, to cause such action or omission to occur.
9.9 Captions. The Article, Section and paragraph captions herein are for
convenience of reference only, do not constitute part of this Agreement and
shall not be deemed to limit or otherwise affect any of the provisions hereof.
9.10 Severability. If any provision of this Agreement or the application
thereof to any person (including, without limitation, the officers and directors
of Dime and Xxxxxx) or circumstance is determined by a court of competent
jurisdiction to be invalid, void or unenforceable, the remaining provisions
hereof, or the application of such provision to persons or circumstances other
than those as to which it has been held invalid or unenforceable, shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated thereby, so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination, the parties shall negotiate in
good faith in an effort to agree upon a suitable and equitable substitute
provision to effect the original intent of the parties. Prior to the termination
of this Agreement in accordance with its terms, the absence of adoption by the
stockholders of a party hereto shall not render invalid or inoperative any
provision hereof not required to be contained in the agreement of merger to be
adopted by such stockholders pursuant to Sections 251 and 252 of the DGCL, or
Section 14A: 10-3 of the NJBCA, as the case may be, and the certificate of
incorporation and by-laws of such party.
9.11 No Third Party Beneficiaries. Nothing contained in this Agreement,
expressed or implied, is intended to confer upon any person or entity other than
the parties hereto, any benefit right or remedies except that the provisions of
Section 4.3 shall inure to the benefit of the holders of stock options and
Article III (subject to the limitations set forth in such Article III) and
Section 6.13 shall inure to the benefit of the persons referred to therein.
* * *
A-29
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the duly authorized officers of the parties hereto as of the date first
hereinabove written.
XXXXXX UNITED BANCORP
By: /s/ XXXXXXX X. XXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President and Chief
Executive Officer
DIME BANCORP, INC.
By: /s/ XXXXXXXX XXXX
------------------------------------
Name: Xxxxxxxx Xxxx
Title: Chief Executive Officer
A-30
ANNEX 1
TO THE MERGER AGREEMENT
AMENDMENTS TO
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
SURVIVING CORPORATION
The following amendments shall be made to the Amended and Restated
Certificate of Incorporation of the Surviving Corporation, effective as of the
Effective Time:
1. Article I of the Amended and Restated Certificate of Incorporation of
Dime Bancorp, Inc. shall be amended to read in its entirety as follows:
"The name of the Corporation is Dime United Bancorp, Inc."
2. The following Article XIII shall be added to the Amended and Restated
Certificate of Incorporation of Dime Bancorp, Inc. after Article XII
and shall read in its entirety as follows:
ARTICLE XIII
PROVISIONS RELATED TO MERGER
OF
DIME BANCORP, INC. AND XXXXXX UNITED BANCORP
The following provisions in Article XIII of this Amended and Restated
Certificate of Incorporation shall be effective until December 31, 2002 and are
effected by consummation of, and at the Effective Time of, the Agreement and
Plan of Merger, dated as of September 15, 1999, between Dime Bancorp, Inc. and
Xxxxxx United Bancorp, as amended and restated on December 27, 1999 (the "Merger
Agreement"). Capitalized terms used in this Article XIII and not otherwise
defined herein have the meanings ascribed to such terms in the Merger Agreement.
A. Qualifications for Directors. Subject to the provisions of this
Article XIII, until December 31, 2002, (1) in order to qualify for election as a
director of the Corporation at an annual or special meeting of stockholders or
by written consent of stockholders, an individual must be nominated either by
(a) a stockholder entitled to vote in the election of directors who has complied
with all requirements for such nomination provided for in this Amended and
Restated Certificate of Incorporation and the Corporation's bylaws or (b) the
board of directors after having been nominated to the board of directors by a
Nominating Committee (as defined below) provided for in this Section A of this
Article XIII and (2) in order to qualify for election as a director of the
Corporation by the board of directors to fill a vacancy or newly created
directorship, an individual must be nominated to the board of directors by a
Nominating Committee (as defined below) provided for in this Section A of this
Article XIII. The qualification procedures for clauses (1)(b) and (2) of the
previous sentence are known herein as the "Nominating Committee Procedures".
(i) (A) If the Board of Directors shall decide to increase at any time
the number of members of the Board of Directors, the Board of Directors
shall designate such new directorships in such a way as to cause the ratio
of the number of Former Dime Directorships (as defined below) to the number
of Former Xxxxxx Directorships (as defined below) to be equal (or as close
to equal as possible) to the ratio (the "Ratio") of Former Dime Directors
to Former Xxxxxx Directors that existed at the Effective Time.
(B) If the Board of Directors shall decide to decrease the number of
members of the Board of Directors and such decrease coincides with an
annual stockholders' meeting, the Board of Directors shall designate those
directorships that are up for election at such annual stockholders' meeting
in such a way as to cause the ratio of the number of Former Dime
Directorships (as defined below) to
the number of Former Xxxxxx Directorships (as defined below) to be equal
(or as close to equal as possible) to the Ratio.
(C) If the Board of Directors shall decide to decrease, during any
period between consecutive annual stockholders meetings, the number of
members of the Board of Directors, the Former Dime Directors and the Former
Xxxxxx Directors shall use their best efforts, giving due consideration to
the provisions of this Certificate, to cause the ratio of the number of
Former Dime Directorships (as defined below) to the number of Former Xxxxxx
Directorships (as defined below) to be equal (or as close to equal as
possible) to the Ratio.
(ii) The board of directors may decide, on the recommendation of both
a Dime Nominating Committee (as defined below) and a Xxxxxx Nominating
Committee (as defined below), (A) not to designate any one or more
directorships in the manner described in the previous paragraph (i), or (B)
to determine that the Nominating Committee Procedures shall not apply to
any one or more directorships.
(iii) For any directorship occupied by, vacated by, to be occupied by,
or designated for a Former Dime Director (a "Former Dime Directorship"),
the Nominating Committee will consist of two Former Dime Directors and one
Former Xxxxxx Director (a "Dime Nominating Committee"); for any
directorship occupied by, vacated by, to be occupied by, or designated for
a Former Xxxxxx Director (a "Former Xxxxxx Directorship"), the Nominating
Committee will consist of two Former Xxxxxx Directors and one Former Dime
Director (a "Xxxxxx Nominating Committee"). The terms "Former Dime
Director" and "Former Xxxxxx Director" will have the meanings assigned to
such terms in this Article. Either a Dime Nominating Committee or a Xxxxxx
Nominating Committee may be referred to herein by the general term
"Nominating Committee".
(iv) A Nominating Committee shall act by the vote of not less than
two-thirds of the members of the Nominating Committee.
(v) Former Dime Directors on a Nominating Committee shall be appointed
from time to time at the recommendation of Xx. Xxxxxxxx X. Xxxx; Former
Xxxxxx Directors on a Nominating Committee shall be appointed from time to
time at the recommendation of Xx. Xxxxxxx X. Xxxxxxx; provided, that,
should Xx. Xxxx or Xx. Xxxxxxx be otherwise unable to recommend for
appointment such members of a Nominating Committee, the Former Dime
Directors will be appointed at the recommendation of the most senior Former
Dime Director then serving on the Board of Directors and the Former Xxxxxx
Directors will be appointed at the recommendation of the most senior Former
Xxxxxx Director then serving on the Board of Directors.
(vi) At the Effective Time, any director who was formerly a director
of Dime Bancorp, Inc. shall be a "Former Dime Director" and any director
who was formerly a director of Xxxxxx United Bancorp shall be a "Former
Xxxxxx Director." Any person filling (by election or appointment) a Former
Dime Directorship and qualified by the Nominating Committee Procedures
shall be considered a "Former Dime Director"; any person filling (by
election or appointment) a Former Xxxxxx Directorship and qualified by the
Nominating Committee Procedures shall be considered a "Former Xxxxxx
Director." Any person who is a Former Dime Director or Former Xxxxxx
Director under this paragraph (vi) shall also be a "Continuing Director".
X. Xxxxxxx Officers and Actions by Special Majority. (1) As of the
Effective Time, and thereafter until December 31, 2002, subject to this Article
XIII, Xx. Xxxx will be Chairman of the Board and Chief Executive Officer of the
Corporation and Xx. Xxxxxxx will be President and Chief Operating Officer of the
Corporation. On December 31, 2002 or such earlier date (if any) that Xx. Xxxx
ceases to serve as the Chairman of the Board and Chief Executive Officer of the
Corporation, Xx. Xxxxxxx will succeed Xx. Xxxx in those positions, unless the
Board of Directors, by vote of a Special Majority (as defined below), decides to
the contrary.
A-1-2
(2) In addition, until December 31, 2002, the following actions will also
require the vote of a Special Majority (as defined below):
(a) the removal, as an officer of the Corporation, of the Chairman of
the Board and Chief Executive Officer or the President and Chief Operating
Officer, as such positions are occupied at the Effective Time of the merger
under the Merger Agreement; or
(b) any action to make a material modification or amendment to or to
breach the employment agreements of the Chairman of the Board and Chief
Executive Officer or the President and Chief Operating Officer, as such
positions are occupied at the Effective Time of the merger under the Merger
Agreement.
(3) A "Special Majority" shall mean a majority of the directors voting,
provided that a Special Majority shall also require the vote of at least that
number of Continuing Directors equal to the number of Former Dime Directors then
in office plus three (3) out of the number of Former Xxxxxx Directors then in
office (or if there are less than 3 Former Xxxxxx Directors in office at such
time, then plus that number of Former Xxxxxx Directors then in office).
A-1-3
ANNEX 2
TO THE MERGER AGREEMENT
AMENDMENTS TO
BY-LAWS
OF
SURVIVING CORPORATION
The following amendments shall be made to the By-laws of the Surviving
Corporation by resolution of the Board of Directors of Dime, effective as of the
Effective Time:
1. Article III, Section 2, Subsection (a) of the By-laws of Dime Bancorp,
Inc. shall be amended to read in its entirety as follows:
"SECTION 2. Number and term. (a) The Board of Directors shall
consist of not less than seven nor more than 25 members, such number of
Directors to be determined from time to time by resolution adopted by a
vote of a majority of the Directors then in office."
ANNEX 3
TO THE MERGER AGREEMENT
COMMITTEES
OF THE
BOARD OF DIRECTORS
OF THE
SURVIVING CORPORATION
The following sets forth certain agreements between Dime Bancorp, Inc.
("Dime") and Xxxxxx United Bancorp ("Xxxxxx") as to the composition of board
committees of the Surviving Corporation (as that term is defined in the
Agreement and Plan of Merger between Dime and Xxxxxx, dated as of September 15,
1999). The committees described below are to be made up of Continuing Directors
(as defined in the Agreement and Plan of Merger)
Executive Committee: CEO is Chairman; other members are the six
committee chairpersons (three from each
company, plus Xx. Xxxxxxx plus one additional
member from Dime). At present this committee
never meets.
Audit Committee: Dime selects chairperson; total of six members;
three from each company
Compensation Committee: Dime selects chairperson; total of six members;
three from each company
Nominating/Governance
Committee: Dime selects chairperson; total of six members;
three from each company
Investment Committee: Xxxxxx selects chairperson; total of six
members; three from each company; reviews
policies and performance of portfolios
including loan portfolios
Strategic Planning Committee: Xxxxxx selects chairperson; total of six
members; three from each company; establishes
long range strategy and reviews adherence;
reviews acquisitions and oversees progress on
goodwill claim
CRA Committee: Xxxxxx selects chairperson; total of six
members; three from each company; oversight
committee which monitors progress against
goals.
---------------
(1) CEO and COO are ex officio on all committees, to the extent permitted
(2) Bank Trust Committee will also be split at three from each
(3) Stated goal for reduction of Board from 25
(4) New Board members through acquisitions not to participate in
responsibilities of Continuing Directors through 2002.
ANNEX
4(a)
TO THE
MERGER AGREEMENT
[Form of Xxxxxx Affiliate Agreement]
Dime Bancorp, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx United Bancorp
0000 XxxXxxxxx Xxxxxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Re: Agreement and Plan of Merger between
Dime Bancorp, Inc. and Xxxxxx United Bancorp
----------------------------------------------------------------
Ladies and Gentlemen:
I have been advised that I may be considered an "affiliate" of Xxxxxx
United Bancorp (the "Company") for purposes of (i) Rule 145 of the General Rules
and Regulations (the "Rules and Regulations") of the Securities and Exchange
Commission (the "SEC") under the Securities Act of 1933, as amended (the
"Securities Act"), and/or (ii) SEC Accounting Series Releases 130 and 135, as
amended. Pursuant to the Agreement and Plan of Merger, dated as of the 15th day
of September, 1999 (the "Merger Agreement"), by and between the Company and Dime
Bancorp, Inc. ("Dime"), I may receive securities (the "Shares"), in exchange for
the shares of stock of the Company owned by me at the effective date of the
merger provided for in the Merger Agreement (the "Merger").
I represent and warrant to, and agree with, the Company and Dime (for their
benefit and the benefit of the surviving corporation of the Merger) that:
A. I have carefully read this letter agreement and the Merger
Agreement and have discussed their requirements and other applicable
limitations upon my ability to sell, transfer or otherwise dispose of the
Shares, to the extent I felt necessary, with my counsel or counsel for the
Company.
B. I will not make any sale, transfer or other disposition of my
Shares in violation of the Securities Act or the Rules and Regulations.
C. I have been advised that the offering, sale and delivery of the
Shares to me in the Merger have been registered under the Securities Act on
a Registration Statement on Form S-4. I have also been advised, however,
that, since I may be considered an "affiliate" of the Company at the time
the Merger Agreement is submitted for a vote of the stockholders of the
Company, any public offering or sale by me of any of the Shares will, under
current law, require either (i) the further registration under the
Securities Act of the Shares to be offered and sold, (ii) compliance by me
with SEC Rule 145 under the Securities Act in connection with such offer
and sale or (iii) the availability of another exemption from registration
of such Shares under the Securities Act for such offer and sale.
D. I have been informed by the Company that the Shares have not been
registered under the Securities Act for distribution by me and that the
Shares must be held by me unless (i) such Shares have been registered for
distribution under the Securities Act, (ii) a sale of the Shares is made in
conformity with the volume and other limitations of SEC Rule 145 under the
Securities Act or (iii) in the opinion of counsel reasonably acceptable to
the surviving corporation, some other exemption from registration under the
Securities Act is available with respect to any such proposed sale,
transfer or other disposition of the Shares.
Dime Bancorp, Inc.
Xxxxxx United Bancorp
E. I understand that the surviving corporation is under no obligation
to register the sale, transfer or other disposition of the Shares by me or
on my behalf under the Securities Act or to take any other action necessary
in order to make compliance with an exemption from such registration
available to me.
F. I also understand that stop transfer instructions will be given to
all transfer agents for the Shares and that there will be placed on the
certificates for the Shares issued to me, or any replacements or
substitutes therefor, a legend stating in substance:
"The shares represented by this certificate were issued in a
transaction to which Rule 145 under the Securities Act of 1933 applies.
The shares represented by this certificate may only be transferred in
accordance with the terms of an agreement, dated [ ], 1999,
between the registered holder hereof and the issuer, a copy of which
agreement will be mailed to the holder hereof without charge promptly
after receipt by the issuer of a written request therefor."
It is understood and agreed that the legend set forth in paragraph F above
shall be removed by the delivery of substitute certificates without such legend
if I shall have delivered to the surviving corporation (1) a copy of a letter
from the staff of the SEC, or an opinion of counsel in form and substance
reasonably satisfactory to the surviving corporation, to the effect that such
legend is not required for purposes of the Act or (2) evidence or
representations satisfactory to the surviving corporation that the Shares
represented by such certificate are being or have been sold in conformity with
the provisions of Rule 145(d).
I further represent to and covenant with each of the Company and Dime (for
their benefit and the benefit of the surviving corporation) that (1) I will not,
within the 30 days prior to the Closing Date (as defined in the Merger
Agreement), sell, transfer or otherwise dispose of any shares of stock of the
Company and (2) I will not sell, transfer or otherwise dispose of any Shares
(whether or not acquired by me in the Merger) until after such time as results
covering at least 30 days of combined operations of the Company and Dime have
been published by the surviving corporation, in the form of a quarterly earnings
report, an effective registration statement filed with the SEC, a report filed
with the SEC on Form 10-K, 10-Q or 8-K or any other public filing or
announcement that includes such combined results of operations. Furthermore, I
understand that the Company and the surviving corporation will give stop
transfer instructions to their respective transfer agents in order to prevent
the breach of the covenants made by me in this paragraph. I also understand that
the Merger is intended to be treated for accounting purposes as a
"pooling-of-interests", and I agree that, if the Company or the surviving
corporation advises me in writing that additional restrictions apply to my
ability to sell, transfer or otherwise dispose of stock of the Company or Shares
in order to be entitled to use the pooling of interests accounting method, I
will abide by such restrictions.
I further understand and agree that this letter agreement shall apply to
all shares of the stock of the Company and all of the Shares that I am deemed to
beneficially own pursuant to applicable federal securities laws.
By its acceptance hereof, Dime Bancorp, Inc. agrees, for a period of two
years after the effective date of the Merger, that it, as the surviving
corporation, will file on a timely basis all reports required to be filed by it
pursuant to Section 13 of the Securities Exchange Act of 1934, as amended, so
that the public information provisions of SEC Rule 144(c) under the Securities
Act are satisfied and the resale provisions of SEC Rules 145(d)(1) and (2) are
therefore available to me in the event I desire to transfer any Shares issued to
me in the Merger.
A-4(a)-2
Dime Bancorp, Inc.
Xxxxxx United Bancorp
This letter constitutes the complete understanding between the Company,
Dime and me concerning the subject matter hereof. The surviving corporation is
expressly intended to be a beneficiary of this letter agreement. Any notice
required to be sent to any party hereunder shall be sent by registered or
certified mail, return receipt requested, using the addresses set forth herein
or such other address as shall be furnished in writing by the parties. This
letter shall be governed by, and construed and interpreted in accordance with,
the laws of the State of New York applicable to contracts made and to be
performed within such state.
Very truly yours,
--------------------------------------
(Name of Affiliate)
ACCEPTED:
DIME BANCORP, INC.
By:
-------------------------------------------------
XXXXXX UNITED BANCORP
By:
-------------------------------------------------
A-4(a)-3
ANNEX 4(b)
TO THE MERGER AGREEMENT
[Form of Dime Affiliate Agreement]
Dime Bancorp, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx United Bancorp
0000 XxxXxxxxx Xxxxxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Re: Agreement and Plan of Merger between
Dime Bancorp, Inc. and Xxxxxx United Bancorp
----------------------------------------------------------------
Ladies and Gentlemen:
I have been advised that, by reason of my beneficial ownership of shares of
common stock in Dime Bancorp, Inc. (the "Shares"), among other things, I may be
considered an "affiliate" of Dime Bancorp, Inc. (the "Company") for purposes of
(i) Rule 145 of the General Rules and Regulations (the "Rules and Regulations")
of the Securities and Exchange Commission (the "SEC") under the Securities Act
of 1933, as amended (the "Securities Act"), and/or (ii) SEC Accounting Series
Releases 130 and 135, as amended. I understand that, pursuant to the Agreement
and Plan of Merger, dated as of the 15th day of September, 1999 (the "Merger
Agreement"), by and between the Company and Xxxxxx United Bancorp ("Xxxxxx"),
Xxxxxx will merge with and into the Company (the "Merger").
I represent and warrant to, and agree with, the Company and the Xxxxxx (for
their benefit and the benefit of the surviving corporation of the Merger) that:
A. I have carefully read this letter agreement and the Merger
Agreement and have discussed their requirements and other applicable
limitations upon my ability to sell, transfer or otherwise dispose of the
Shares, to the extent I felt necessary, with my counsel or counsel for the
Company.
B. I will not make any sale, transfer or other disposition of my
Shares in violation of the Securities Act or the Rules and Regulations.
C. I will not (1) within the 30 days prior to the Closing Date (as
defined in the Merger Agreement), sell, transfer or otherwise dispose of
any shares of stock of the Company and (2) sell, transfer or otherwise
dispose of any Shares (whether or not acquired by me in the Merger) until
after such time as results covering at least 30 days of combined operations
of the Company and the Other Party have been published by the surviving
corporation, in the form of a quarterly earnings report, an effective
registration statement filed with the SEC, a report filed with the SEC on
Form 10-K, 10-Q or 8-K or any other public filing or announcement that
includes such combined results of operations. Furthermore, I understand
that the Company and the surviving corporation will give stop transfer
instructions to their respective transfer agents in order to prevent the
breach of the covenants made by me in this paragraph. I also understand
that the Merger is intended to be treated for accounting purposes as a
"pooling of interests", and I agree that, if the Company or the surviving
corporation advises me in writing that additional restrictions apply to my
ability to sell, transfer or otherwise dispose of stock of the Company or
Shares in order to be entitled to use the pooling of interests accounting
method, I will abide by such restrictions.
Dime Bancorp, Inc.
Xxxxxx United Bancorp
I further understand and agree that this letter agreement shall apply to
all shares of the stock of the Company and all of the Shares that I am deemed to
beneficially own pursuant to applicable federal securities laws.
This letter constitutes the complete understanding between the Company,
Xxxxxx and me concerning the subject matter hereof. The surviving corporation is
expressly intended to be a beneficiary of this letter agreement. Any notice
required to be sent to any party hereunder shall be sent by registered or
certified mail, return receipt requested, using the addresses set forth herein
or such other address as shall be furnished in writing by the parties. This
letter shall be governed by, and construed and interpreted in accordance with,
the laws of the State of New York applicable to contracts made and to be
performed within such state.
Very truly yours,
--------------------------------------
(Name of Affiliate)
ACCEPTED:
DIME BANCORP, INC.
By:
-------------------------------------------------
XXXXXX UNITED BANCORP
By:
-------------------------------------------------
A-4(b)-2
ANNEX 5
TO THE MERGER AGREEMENT
Senior Executive Officers
of
Surviving Corporation
Position with Surviving Corporation
Name and Current Position and Subsidiary Bank
------------------------- -----------------------------------
Xxxxxxx X. Xxxxxxxxx, current Executive Vice President Chief Financial Officer
and Chief Financial Officer of Dime
Xxxx X. XxXxxxxx, current Executive Vice President and Chief Credit & Risk Management Officer
Chief Credit Officer of Xxxxxx
Xxxxxxx X. Xxxxx, current Executive Vice President and Mortgage Banking Executive (Chairman and
Chief Executive Officer, Mortgage Banking of Dime Chief Executive Officer of North America
Mortgage Company)
Xxxxxx X. Xxxxx, current Executive Vice President of Commercial Banking General Manager
Commercial Lending and Senior Lending Officer of
Xxxxxx
Xxxxx X. Xxxxxxxxx, current Executive Vice President of Chief Marketing Officer
Retail Banking of Xxxxxx
Xxxxx X. Xxxxx, current Executive Vice President and General Counsel
General Counsel of Xxxx
Xxxxxx X. Xxxxx, current Executive Vice President and Chief Information Officer
Chief Information Officer of Dime
Xxxxxx X. Xxxxxxx, current Executive Vice President and Chief Human Resources Officer
Chief Human Resources and Corporate Services Executive
of Dime
Xxxxxx X. Xxxxxxxx, current Executive Vice President and Consumer Lending General Manager
General Manager, Business Banking of Xxxx
Xxxxxx X. Xxxxxx, current Executive Vice President and Commercial Real Estate General Manager
General Manager, Commercial Real Estate of Dime
Xxxxxx X. Xxxxxxxxx, current Executive Vice President Retail Banking General Manager
and General Manager, Consumer Financial Services of
Dime
Xxxxxx X. Xxxxxx, current Senior Vice President and Insurance General Manager
General Manager of Dime Insurance Group
Xxxxxx X. Xxxxxx, current President of Shoppers Charge Shoppers Charge President
(private label credit card of Xxxxxx)
Xxxx X. Xxxxxx, current Executive Vice President, Goodwill Litigation Executive
Director of the Office of the Corporate Secretary and
Senior Legal Advisor of Dime
X. Xxxx Van Borkulo-Xxxxx, current Executive Vice Corporate Secretary
President, General Counsel and Corporate Secretary of
Xxxxxx
Xxxxxxxx X. Xxxxxx, current Executive Vice President and Executive Center Executive
Executive Center, External Affairs and Investor
Relations Executive of Dime
