FIRST AMENDMENT TO MERGER AGREEMENT
Exhibit
10.1
FIRST
AMENDMENT TO MERGER AGREEMENT
THIS FIRST AMENDMENT TO MERGER
AGREEMENT (this “Amendment”), dated as of March 9, 2009, is by and
between Investors Bancorp, Inc., a Delaware corporation (“Investors”), and
American Bancorp of New Jersey, Inc., a New Jersey corporation (“ABNJ”), and
amends the Merger Agreement (the “Merger Agreement”), dated as of December 14,
2008, by and between Investors and ABNJ, pursuant to which ABNJ is to merge with
and into Investors (the “Merger”). Capitalized terms used herein and
not otherwise defined herein shall have the meanings given to them in the Merger
Agreement.
WHEREAS, the Board of Directors
of each of Investors and ABNJ has determined that this Amendment is in the best
interests of their respective companies and shareholders and wish to proceed
with the Merger in accordance with the terms of the Merger Agreement, as amended
hereby.
NOW, THEREFORE, in consideration
of the mutual agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are acknowledged, Investors
and ABNJ, intending to be legally bound, agree as follows:
1. Amendment to Section 3.2 of
the Merger Agreement. Section 3.2.1 of the Merger Agreement is
revised and replaced in its entirety to read as follows:
3.2.1 Holders
of ABNJ Common Stock may elect to receive shares of Investors Common Stock or
cash (in either case without interest) in exchange for their shares of ABNJ
Common Stock in accordance with the procedures set forth herein; provided that,
in the aggregate, and subject to the provisions of Section 3.2.7, 65% of the
total number of shares of ABNJ Common Stock issued and outstanding at the
Effective Time, excluding any Treasury Shares (the “Stock Conversion Number”),
shall be converted into the Stock Consideration and the remaining outstanding
shares of ABNJ Common Stock shall be converted into the Cash
Consideration. Shares of ABNJ Common Stock as to which a Cash
Election (including, pursuant to a Mixed Election) has been made are referred to
herein as “Cash Election Shares.” Shares of ABNJ Common Stock as to
which a Stock Election has been made (including, pursuant to a Mixed Election)
are referred to as “Stock Election Shares.” Shares of ABNJ Common
Stock as to which no election has been made (or as to which an Election Form is
not returned properly completed) are referred to herein as “Non-Election
Shares.” The aggregate number of shares of ABNJ Common Stock with
respect to which a Stock Election has been made is referred to herein as the
“Stock Election Number.”
2. Amendment to Section 11.1 of
the Merger Agreement. Section 11.1.10 of the Merger Agreement
is revised and replaced in its entirety to read as follows:
11.1.10 By ABNJ, if its Board
of Directors so determines by a majority vote of the members of its entire
Board, at any time during the five-day period commencing on and following the
Determination Date, such termination to be effective on the 10th day
following such Determination Date (“Effective Termination Date”), if both of the
following conditions are satisfied:
(i)
The Investors Market Value on the Determination Date is less than $9.49,
adjusted as indicated in the last sentence of this Section 11.1.10;
and
(ii)
(a) the number obtained by dividing the Investors Market Value on the
Determination Date by the Initial Investors Market Value (“Investors Ratio”)
shall be less than (b) the quotient obtained by dividing the Final Index Price
by the Initial Index Price minus 0.30;
subject,
however, to the following three sentences. If ABNJ elects to exercise
its termination right pursuant to this Section 11.1.10, it shall give prompt
written notice thereof to Investors. During the five business day
period commencing with its receipt of such notice, Investors shall have the
option to increase the consideration to be received by the holders of ABNJ
Common Stock who are to receive Investors Common Stock hereunder by adjusting
the Exchange Ratio to one of the following quotients at its sole discretion:
(i) a quotient, the numerator of which is equal to the product of the
Initial Investors Market Value, the Exchange Ratio (as then in effect), and the
Index Ratio minus 0.30, and the denominator of which is equal to Investors
Market Value on the Determination Date; or (ii) the quotient determined by
dividing the Initial Investors Market Value by the Investors Market Value on the
Determination Date, and multiplying the quotient by the product of the Exchange
Ratio (as then in effect) and 0.70. If Investors so elects, it shall
give, within such five business-day period, written notice to ABNJ of such
election and the revised Exchange Ratio, whereupon no termination shall be
deemed to have occurred pursuant to this Section 11.1.10 and this Agreement
shall remain in full force and effect in accordance with its terms (except as
the Exchange Ratio shall have been so modified).
For
purposes of this Section 11.1.10, the following terms shall have the meanings
indicated below:
“Determination
Date” shall mean the first date on which all Regulatory Approvals (and waivers,
if applicable) necessary for consummation of the Merger and the Bank Mergers
have been received (disregarding any waiting period).
“Final
Index Price” means the average of the daily closing value of the Index for the
five consecutive trading days immediately preceding the Determination
Date.
“Initial
Index Price” means the closing value of the Index on the trading day ended two
days preceding the execution of this Agreement.
“Index
Group” means the SNL Thrift Index.
“Index
Ratio” shall be the Final Index Price divided by the Initial Index
Price.
“Initial
Investors Market Value” means $13.56, adjusted if applicable as indicated in the
last sentence of Section 11.1.10.
“Investors
Market Value” shall be the average of the daily closing sales prices of a share
of Investors Common Stock as reported on the Nasdaq for the five consecutive
trading days immediately preceding the Determination Date.
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If
Investors declares or effects a stock dividend, reclassification,
recapitalization, split-up, combination, exchange of shares or similar
transaction between the date of this Agreement and the Determination Date, the
prices of Investors Common Stock shall be appropriately adjusted for the
purposes of applying this Section 11.1.10.
3. Remainder
Unaffected. The other terms and provisions of the Merger
Agreement shall not be affected by this Amendment, and the Merger Agreement
shall continue in full force and effect as amended hereby.
4. Counterparts. This
Amendment may be executed in two or more counterparts, each of which shall be
deemed to be an original, but all of which together shall constitute one and the
same instrument.
5. Governing
Law. Regardless of any conflict of law or choice of law
principles that might otherwise apply, the parties agree that this Amendment
shall be governed by and construed in all respects in accordance with the
internal laws and judicial decisions of the State of Delaware.
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IN WITNESS WHEREOF, each of
the parties has caused this Amendment to be executed on its behalf by its duly
authorized officer as of the day and year first above written.
| Investors Bancorp, Inc. | ||||
| By: |
/s/Xxxxx Xxxxxxxx
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Name:
|
Xxxxx Xxxxxxxx | |||
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Title:
|
President
and
Chief Executive Officer
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| American Bancorp of New Jersey, Inc. | ||||
| By: |
/s/Xxxxxx Xxxxxxxxx
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|||
|
Name:
|
Xxxxxx Xxxxxxxxx | |||
|
Title:
|
Chief Executive Officer | |||
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