AGREEMENT AND PLAN OF MERGER BY AND BETWEEN INVESTORS BANCORP, INC. AND AMERICAN BANCORP OF NEW JERSEY, INC.
Exhibit
10.1
AGREEMENT
AND PLAN OF MERGER
BY AND BETWEEN
INVESTORS BANCORP, INC.
AND
AMERICAN BANCORP OF NEW JERSEY, INC.
BY AND BETWEEN
INVESTORS BANCORP, INC.
AND
AMERICAN BANCORP OF NEW JERSEY, INC.
TABLE OF
CONTENTS
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| A-44 | ||||||
| ABNJ Shareholder Meeting | A-44 | |||||
| Proxy Statement-Prospectus | A-44 | |||||
| Regulatory Approvals | A-45 | |||||
| A-46 | ||||||
| Conditions to Each Party’s Obligations under this Agreement | A-46 | |||||
| Conditions to the Obligations of Investors under this Agreement | A-46 | |||||
| Conditions to the Obligations of ABNJ under this Agreement | A-47 | |||||
| A-47 | ||||||
| Time and Place | A-47 | |||||
| Deliveries at the Pre-Closing and the Closing | A-48 | |||||
| A-48 | ||||||
| Termination | A-48 | |||||
| Effect of Termination | A-50 | |||||
| Amendment, Extension and Waiver | A-50 | |||||
| A-51 | ||||||
| Confidentiality | A-51 | |||||
| Public Announcements | A-51 | |||||
| Survival | A-51 | |||||
| Notices | A-51 | |||||
| Parties in Interest | A-52 | |||||
| Complete Agreement | A-52 | |||||
| Counterparts | A-52 | |||||
| Severability | A-52 | |||||
| Governing Law | A-52 | |||||
| Waiver of Trial by Jury | A-52 | |||||
| Interpretation | A-53 | |||||
| Specific Performance | A-53 | |||||
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This AGREEMENT AND PLAN OF MERGER (this “Agreement”)
is dated as of December 14, 2008, by and between Investors
Bancorp, Inc., a Delaware corporation (“Investors”),
and American Bancorp of New Jersey, Inc., a New Jersey
corporation (“ABNJ”).
WHEREAS, the Board of Directors of each of Investors and
ABNJ (i) has determined that this Agreement and the
business combination and related transactions contemplated
hereby are in the best interests of their respective companies
and shareholders and (ii) has determined that this
Agreement and the transactions contemplated hereby are
consistent with and in furtherance of their respective business
strategies, and (iii) has adopted a resolution approving
this Agreement and declaring its advisability; and
WHEREAS, in accordance with the terms of this Agreement,
ABNJ will merge with and into Investors (the
“Merger”), and immediately thereafter American Bank of
New Jersey, a federally chartered stock savings bank and wholly
owned subsidiary of ABNJ (“American Bank”), will be
merged with and into Investors Savings Bank, a New Jersey
chartered stock savings bank and wholly owned subsidiary of
Investors (“Investors Savings Bank”); and
WHEREAS, as a condition to the willingness of Investors
to enter into this Agreement, each of the directors and
executive officers of ABNJ has entered into a Voting Agreement,
substantially in the form of Exhibit A hereto, dated as of
the date hereof, with Investors (the “ABNJ Voting
Agreement”), pursuant to which each such director has
agreed, among other things, to vote all shares of common stock
of ABNJ owned by such person in favor of the approval of this
Agreement and the transactions contemplated hereby, upon the
terms and subject to the conditions set forth in such Voting
Agreements; and
WHEREAS, the parties intend the Merger to qualify as a
reorganization within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the
“Code”), and that this Agreement be and is hereby
adopted as a “plan of reorganization” within the
meaning of Sections 354 and 361 of the Code; and
WHEREAS, the parties desire to make certain
representations, warranties and agreements in connection with
the business transactions described in this Agreement and to
prescribe certain conditions thereto.
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and agreements herein contained, and
of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
Certain
Definitions
1.1. Certain Definitions.
As used in this Agreement, the following terms have the
following meanings (unless the context otherwise requires,
references to Articles and Sections refer to Articles and
Sections of this Agreement).
“ABNJ” shall mean American Bancorp of New Jersey,
Inc., a New Jersey corporation, with its principal offices
located at 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000.
“ABNJ Common Stock” shall mean the common stock, par
value $0.10 per share, of ABNJ.
“ABNJ DISCLOSURE SCHEDULE” shall mean a written
disclosure schedule delivered by ABNJ to Investors specifically
referring to the appropriate section of this Agreement.
“ABNJ Financial Statements” shall mean (i) the
audited consolidated balance sheets (including related notes and
schedules, if any) of ABNJ and subsidiaries as of
September 30, 2008 and 2007 and the consolidated statements
of operations, stockholders’ equity and cash flows
(including related notes and schedules, if any) of ABNJ and
subsidiaries for each of the three years ended
September 30, 2008, 2007 and 2006, and (ii) the
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unaudited interim consolidated financial statements of ABNJ and
subsidiaries as of the end of each calendar quarter following
September 30, 2008 and for the periods then ended.
“ABNJ Equity Plans” shall mean the ABNJ 2005 Stock
Option Plan, the ABNJ 2005 Restricted Stock Plan and the ABNJ
2006 Equity Incentive Plan and any amendments thereto.
“ABNJ Option” shall mean an option to purchase shares
of ABNJ Common Stock granted pursuant to the ABNJ Equity Plans
and as set forth in ABNJ DISCLOSURE SCHEDULE 4.3.1.
“ABNJ Regulatory Agreement” shall have the meaning set
forth in Section 4.12.3.
“ABNJ Regulatory Reports” means the Thrift Financial
Reports of American Bank and accompanying schedules, as filed
with the OTS, for each calendar quarter beginning with the
quarter ended March 31, 2007, through the Closing Date, and
all Reports filed with the OTS by ABNJ from March 31, 2007
through the Closing Date.
“ABNJ Shareholders Meeting” shall have the meaning set
forth in Section 8.1.1.
“ABNJ Subsidiary” means any corporation, of which more
than 50% of the capital stock is owned, either directly or
indirectly, by ABNJ or American Bank, except any corporation the
stock of which is held in the ordinary course of the lending
activities of American Bank.
“Affiliate” means any Person who directly, or
indirectly, through one or more intermediaries, controls, or is
controlled by, or is under common control with, such Person and,
without limiting the generality of the foregoing, includes any
executive officer or director of such Person and any Affiliate
of such executive officer or director.
“Agreement” means this agreement and any amendment
hereto.
“American Bank” shall mean American Bank of New
Jersey, a stock savings bank chartered by the OTS, with its
principal offices located at 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxx
Xxxxxx 00000, which is a wholly owned subsidiary of ABNJ.
“Applications” means the applications for regulatory
approval that are required by the transactions contemplated
hereby.
“Bank Merger” shall mean the merger of American Bank
with and into Investors Savings Bank, with Investors Savings
Bank as the surviving institution, which merger shall occur
immediately following the Merger.
“Bank Regulator” shall mean any Federal or state
banking regulator, including but not limited to the OTS, FDIC,
FRB and the Department, which regulates Investors Savings Bank
or American Bank, or any of their respective holding companies
or subsidiaries, as the case may be.
“BHCA” shall mean the Bank Holding Company Act of
1956, as amended.
“Cash Consideration” shall have the meaning set forth
in Section 3.1.3.
“Cash Election” shall have the meaning set forth in
Section 3.1.3.
“Cash Election Shares” shall have the meaning set
forth in Section 3.1.3.
“Certificate” shall mean certificates evidencing
shares of ABNJ Common Stock.
“Closing” shall have the meaning set forth in
Section 2.2.
“Closing Date” shall have the meaning set forth in
Section 2.2.
“COBRA” shall mean the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended.
“Code” shall mean the Internal Revenue Code of 1986,
as amended.
“Confidentiality Agreement” shall mean the
confidentiality agreement referred to in Section 12.1 of
this Agreement.
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“Department” shall mean the New Jersey Department of
Banking and Insurance.
“DGCL” shall mean the Delaware General Corporation Law.
“Effective Time” shall mean the date and time
specified pursuant to Section 2.2 hereof as the effective
time of the Merger.
“Election Deadline” shall have the meaning set forth
in Section 3.2.3.
“Election Form” shall have the meaning set forth in
Section 3.2.2.
“Election Form Record Date” shall have the
meaning set forth in Section 3.2.2.
“Environmental Laws” means any applicable Federal,
state or local law, statute, ordinance, rule, regulation, code,
license, permit, authorization, approval, consent, order,
judgment, decree, injunction or agreement with any governmental
entity relating to (1) the protection, preservation or
restoration of the environment (including, without limitation,
air, water vapor, surface water, groundwater, drinking water
supply, surface soil, subsurface soil, plant and animal life or
any other natural resource),
and/or
(2) the use, storage, recycling, treatment, generation,
transportation, processing, handling, labeling, production,
release or disposal of Materials of Environmental Concern. The
term Environmental Law includes without limitation (a) the
Comprehensive Environmental Response, Compensation and Liability
Act, as amended, 42 U.S.C. § 9601, et seq; the
Resource Conservation and Recovery Act, as amended,
42 U.S.C. § 6901, et seq; the Clean Air Act, as
amended, 42 U.S.C. § 7401, et seq; the Federal
Water Pollution Control Act, as amended, 33 U.S.C.
§ 1251, et seq; the Toxic Substances Control Act, as
amended, 15 U.S.C. § 2601, et seq; the Emergency
Planning and Community Right to Xxxx Xxx, 00 X.X.X.
§ 00000, et seq; the Safe Drinking Water Act,
42 U.S.C. § 300f, et seq; and all comparable
state and local laws, and (b) any common law (including
without limitation common law that may impose strict liability)
that may impose liability or obligations for injuries or damages
due to the presence of or exposure to any Materials of
Environmental Concern.
“ERISA” shall mean the Employee Retirement Income
Security Act of 1974, as amended.
“Exchange Act” shall mean the Securities Exchange Act
of 1934, as amended.
“Exchange Agent” shall mean such bank or trust company
or other agent designated by Investors, which shall act as agent
for Investors in connection with the exchange procedures for
converting Certificates into the Merger Consideration.
“Exchange Fund” shall have the meaning set forth in
Section 3.3.1.
“Exchange Ratio” shall have the meaning set forth in
Section 3.1.3.
“FDIA” shall mean the Federal Deposit Insurance Act,
as amended.
“FDIC” shall mean the Federal Deposit Insurance
Corporation or any successor thereto.
“FHLB” shall mean the Federal Home Loan Bank of New
York.
“FINRA” shall mean the Financial Institutions
Regulatory Authority.
“FRB” shall man the Board of Governors of the Federal
Reserve or any successor thereto.
“GAAP” shall mean accounting principles generally
accepted in the United States of America, consistently applied
with prior practice.
“Governmental Entity” shall mean any Federal or state
court, administrative agency or commission or other governmental
authority or instrumentality.
“HOLA” shall mean the Home Owners’ Loan Act, as
amended.
“Investors Savings Bank” shall mean Investors Savings
Bank, a New Jersey chartered stock savings bank, with its
principal offices located at 000 XXX Xxxxxxx, Xxxxx Xxxxx, Xxx
Xxxxxx 00000, which is a wholly owned subsidiary of Investors.
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“Investors” shall mean Investors Bancorp, Inc., a
Delaware corporation, with its principal executive offices
located at 000 XXX Xxxxxxx, Xxxxx Xxxxx, Xxx Xxxxxx 00000.
“Investors Common Stock” shall mean the common stock,
par value $.01 per share, of Investors.
“INVESTORS DISCLOSURE SCHEDULE” shall mean a written
disclosure schedule delivered by Investors to ABNJ specifically
referring to the appropriate section of this Agreement.
“Investors Financial Statements” shall mean the
(i) the audited consolidated statements of condition
(including related notes and schedules) of Investors and
subsidiaries as of June 30, 2008, 2007 and 2006 and the
consolidated statements of income, comprehensive income, changes
in stockholders’ equity and cash flows (including related
notes and schedules, if any) of Investors and subsidiaries for
each of the three years ended June 30, 2008, 2007 and 2006,
as set forth in Investors’ annual report for the year ended
June 30, 2008, and (ii) the unaudited interim
consolidated financial statements of Investors and subsidiaries
as of the end of each calendar quarter following June 30,
2008, and for the periods then ended, as filed by Investors in
its Securities Documents.
“Investors Stock Benefit Plans” shall mean the 2006
Equity Incentive Plan.
“Investors Subsidiary” means any corporation, of which
more than 50% of the capital stock is owned, either directly or
indirectly, by Investors or Investors Savings Bank, except any
corporation the stock of which is held in the ordinary course of
the lending activities of Investors Savings Bank.
“IRS” shall mean the United States Internal Revenue
Service.
“Proxy Statement-Prospectus” shall have the meaning
set forth in Section 8.2.1.
“Knowledge” as used with respect to a Person
(including references to such Person being aware of a particular
matter) means those facts that are known or should have been
known by the executive officers and directors of such Person,
and includes any facts, matters or circumstances set forth in
any written notice from any Bank Regulator or any other material
written notice received by that Person.
“Material Adverse Effect” shall mean, with respect to
Investors or ABNJ, respectively, any effect that (i) is
material and adverse to the financial condition, results of
operations or business of Investors and its Subsidiaries taken
as a whole, or ABNJ and its Subsidiaries taken as a whole,
respectively, or (ii) does or would materially impair the
ability of either ABNJ, on the one hand, or Investors, on the
other hand, to perform its obligations under this Agreement or
otherwise materially threaten or materially impede the
consummation of the transactions contemplated by this Agreement.
With respect to ABNJ, and without limiting the foregoing, a
Material Adverse Effect shall be deemed to have occurred if
loans accounted for on a non-accrual basis, together with loans
90 days or more delinquent (“non-performing
loans”) at any month end prior to Closing exceed 4% of
total loans at such month end (provided that loans (or any
amount thereof) accounted for on a non-accrual basis together
with loans 90 days or more delinquent that are charged-off
after the date hereof but prior to Closing shall be considered
non-performing loans for purposes of this calculation). For
purposes of this Agreement, the term “Material Adverse
Effect” shall not be deemed to include the impact of
(a) changes in laws and regulations affecting banks or
thrift institutions or their holding companies generally, or
interpretations thereof by courts or governmental agencies,
(b) changes in GAAP or regulatory accounting principles
generally applicable to financial institutions and their holding
companies, (c) the impact of compliance with this Agreement
on the business, financial condition or results of operations of
the parties and their respective subsidiaries, including the
expenses incurred by the parties hereto in consummating the
transactions contemplated by this Agreement, (d) the
payment of any amounts due to, or the provision of any other
benefits to, any directors, officers or employees of ABNJ and
its Subsidiaries pursuant to the employment agreements, plans
and other arrangements described in Section 7.8 of this
Agreement, (e) any charge or reserve taken by ABNJ at the
request of Investors pursuant to Section 6.11 of this
Agreement, (f) actions and omissions of a party hereto (or
any of its Subsidiaries) taken with the prior written consent of
the other party or pursuant to the terms of this Agreement,
(g) changes in national or international political or
social conditions including the engagement by the United States
in hostilities, whether or not pursuant to the declaration of a
national emergency or war, or the occurrence of any military or
terrorist attack upon or within
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the United States, or any of its territories, possessions or
diplomatic or consular offices or upon any military
installation, equipment or personnel of the United States,
unless it uniquely affects either or both of the parties or any
of their Subsidiaries or (e) any change in the value of the
securities or loan portfolio, or any change in the value of the
deposits or borrowings, of Investors or ABNJ, or any of their
Subsidiaries, respectively, resulting from a change in interest
rates generally.
“Materials of Environmental Concern” means pollutants,
contaminants, wastes, toxic substances, petroleum and petroleum
products, and any other materials regulated under Environmental
Laws.
“Merger” shall mean the merger of ABNJ with and into
Investors (or a subsidiary thereof) pursuant to the terms hereof.
“Merger Consideration” shall have the meaning set
forth in Section 3.1.6.
“Merger Registration Statement” shall mean the
registration statement, together with all amendments, filed with
the SEC under the Securities Act for the purpose of registering
shares of Investors Common Stock to be offered to holders of
ABNJ Common Stock in connection with the Merger.
“Nasdaq” shall mean the Nasdaq Global Select Market.
“NJBCA” shall mean the New Jersey Business Corporation
Act.
“OTS” shall mean the Office of Thrift Supervision or
any successor thereto.
“PBGC” shall mean the Pension Benefit Guaranty
Corporation, or any successor thereto.
“Pension Plan” shall have the meaning set forth in
Section 4.13.2.
“Person” shall mean any individual, corporation,
partnership, joint venture, association, trust or
“group” (as that term is defined under the Exchange
Act).
“Regulatory Approvals” means the approval of any Bank
Regulator that is necessary in connection with the consummation
of the Merger, the Bank Merger and the related transactions
contemplated by this Agreement.
“Rights” shall mean warrants, options, rights,
convertible securities, stock appreciation rights and other
arrangements or commitments which obligate an entity to issue or
dispose of any of its capital stock or other ownership interests
or which provide for compensation based on the equity
appreciation of its capital stock.
“SEC” shall mean the Securities and Exchange
Commission or any successor thereto.
“Securities Act” shall mean the Securities Act of
1933, as amended.
“Securities Documents” shall mean all reports,
offering circulars, proxy statements, registration statements
and all similar documents filed, or required to be filed,
pursuant to the Securities Laws.
“Securities Laws” shall mean the Securities Act; the
Exchange Act; the Investment Company Act of 1940, as amended;
the Investment Advisers Act of 1940, as amended; the
Trust Indenture Act of 1939, as amended, and the rules and
regulations of the SEC promulgated thereunder.
“Shortfall Number” shall have the meaning set forth in
Section 3.2.5.
“Significant Subsidiary” shall have the meaning set
forth in
Rule 1-02
of
Regulation S-X
of the SEC.
“Stock Consideration” shall have the meaning set forth
in Section 3.1.3.
“Stock Conversion Number” shall have the meaning set
forth in Section 3.2.1.
“Stock Election Shares” shall have the meaning set
forth in Section 3.1.3.
“Stock Election Number” shall have the meaning set
forth in Section 3.2.4.
“Stock Election” shall have the meaning set forth in
Section 3.1.3.
“Stock Exchange” shall mean the Nasdaq Stock Market.
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“Surviving Corporation” shall have the meaning set
forth in Section 2.1 hereof.
“Termination Date” shall mean September 30, 2009.
“Treasury Stock” shall have the meaning set forth in
Section 3.1.2.
Other terms used herein are defined in the preamble and
elsewhere in this Agreement.
ARTICLE II
The Merger
2.1. Merger.
Subject to the terms and conditions of this Agreement, at the
Effective Time: (a) ABNJ shall merge with and into
Investors, with Investors as the resulting or surviving
corporation (the “Surviving Corporation”); and
(b) the separate existence of ABNJ shall cease and all of
the rights, privileges, powers, franchises, properties, assets,
liabilities and obligations of ABNJ shall be vested in and
assumed by Investors. As part of the Merger, each share of ABNJ
Common Stock (other than Treasury Stock) will be converted into
the right to receive the Merger Consideration pursuant to the
terms of Article III hereof. Immediately after the Merger,
American Bank shall merge with and into Investors Savings Bank,
with Investors Savings Bank as the resulting institution.
2.2. Effective Time.
The Closing shall occur no later than the close of business on
the tenth business day following the latest to occur of
(i) all Regulatory Approvals of the Merger and the Bank
Merger, (ii) ABNJ shareholder approval of the Merger, or
(iii) the passing of any applicable waiting periods; or at
such other date or time upon which Investors and ABNJ mutually
agree (the “Closing”). The Merger shall be effected by
the filing of a certificate of merger with the Delaware Office
of the Secretary of State and with the New Jersey Secretary of
State on the day of the Closing (the “Closing Date”),
in accordance with the DGCL. The “Effective Time”
means the date and time upon which the certificate of merger is
filed with the Delaware Office of the Secretary of State and the
New Jersey Office of the Secretary of State, or as otherwise
stated in the certificate of merger, in accordance with the DGCL
and the NJBCA.
2.3. Certificate of Incorporation and Bylaws.
The Certificate of Incorporation and Bylaws of Investors as in
effect immediately prior to the Effective Time shall be the
Certificate of Incorporation and Bylaws of the Surviving
Corporation, until thereafter amended as provided therein and by
applicable law.
2.4. Directors and Officers of Surviving
Corporation.
The directors of Investors immediately prior to the Effective
Time shall remain directors of the Surviving Corporation.
Effective upon the Effective Time, the number of persons
comprising the Board of Directors of Investors and Investors
Savings Bank shall each be increased by one, and Xxxxx X.
Xxxx III shall be appointed to the Board of Directors of
Investors and Investors Savings Bank. The officers of Investors
immediately prior to the Effective Time shall remain the
officers of Surviving Corporation, in each case until their
respective successors are duly elected or appointed and
qualified.
2.5. Effects of the Merger.
At and after the Effective Time, the Merger shall have the
effects as set forth in the DGCL and the NJBCA.
2.6. Tax Consequences.
It is intended that the Merger shall constitute a reorganization
within the meaning of Section 368(a) of the Code, and that
this Agreement shall constitute a “plan of
reorganization” as that term is used in Sections 354
and 361 of the Code. From and after the date of this Agreement
and until the Closing, each party
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hereto shall use its reasonable best efforts to cause the Merger
to qualify, and will not knowingly take any action, cause any
action to be taken, fail to take any action or cause any action
to fail to be taken which action or failure to act could prevent
the Merger from qualifying as a reorganization under
Section 368(a) of the Code. Following the Closing, neither
Investors, ABNJ nor any of their affiliates shall knowingly take
any action, cause any action to be taken, fail to take any
action or cause any action to fail to be taken, which action or
failure to act could cause the Merger to fail to qualify as a
reorganization under Section 368(a) of the Code. Investors
and ABNJ each hereby agrees to deliver certificates
substantially in compliance with IRS published advance ruling
guidelines, with customary exceptions and modifications thereto,
to enable counsel to deliver the legal opinion contemplated by
Section 9.1.6, which certificates shall be effective as of
the date of such opinion.
2.7. Possible Alternative Structures.
Notwithstanding anything to the contrary contained in this
Agreement, prior to the Effective Time, Investors shall be
entitled to revise the structure of the Merger or the Bank
Merger, including without limitation, by merging ABNJ into a
wholly owned subsidiary of Investors, provided that (i) any
such subsidiary shall become a party to, and shall agree to be
bound by, the terms of this Agreement (ii) there are no
adverse Federal or state income tax consequences to ABNJ
shareholders as a result of the modification; (iii) the
consideration to be paid to the holders of ABNJ Common Stock
under this Agreement is not thereby changed in kind, value or
reduced in amount; and (iv) such modification will not
delay materially or jeopardize the receipt of Regulatory
Approvals or other consents and approvals relating to the
consummation of the Merger and the Bank Merger or otherwise
cause any condition to Closing set forth in Article IX not
to be capable of being fulfilled. The parties hereto agree to
appropriately amend this Agreement and any related documents in
order to reflect any such revised structure.
2.8. Bank Merger
Investors and ABNJ shall use their reasonable best efforts to
cause the merger of American Bank with and into Investors
Savings Bank, with Investors Savings Bank as the surviving
institution, to occur as soon as practicable after the Effective
Time. In addition, following the execution and delivery of this
Agreement, Investors will cause Investors Savings Bank, and ABNJ
will cause American Bank, to execute and deliver the Plan of
Bank Merger substantially in the form attached to this Agreement
as Exhibit A.
2.9. Additional Actions
If, at any time after the Effective Time, Investors shall
consider or be advised that any further deeds, assignments or
assurances in law or any other acts are necessary or desirable
to (i) vest, perfect or confirm, of record or otherwise, in
Investors its right, title or interest in, to or under any of
the rights, properties or assets of ABNJ, American Bank, or
(ii) otherwise carry out the purposes of this Agreement,
ABNJ and its officers and directors shall be deemed to have
granted to Investors an irrevocable power of attorney to execute
and deliver, in such official corporate capacities, all such
deeds, assignments or assurances in law or any other acts as are
necessary or desirable to (a) vest, perfect or confirm, of
record or otherwise, in Investors its right, title or interest
in, to or under any of the rights, properties or assets of ABNJ
or (b) otherwise carry out the purposes of this Agreement,
and the officers and directors of the Investors are authorized
in the name of ABNJ or otherwise to take any and all such action.
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ARTICLE III
Conversion
of Shares
3.1. Conversion of ABNJ Common Stock; Merger
Consideration.
At the Effective Time, by virtue of the Merger and without any
action on the part of Investors, ABNJ or the holders of any of
the shares of ABNJ Common Stock, the Merger shall be effected in
accordance with the following terms:
3.1.1. Each share of Investors Common Stock that is issued
and outstanding immediately prior to the Effective Time shall
remain issued and outstanding following the Effective Time and
shall be unchanged by the Merger.
3.1.2. All shares of ABNJ Common Stock held in the treasury
of ABNJ (“Treasury Stock”) and each share of ABNJ
Common Stock owned by Investors immediately prior to the
Effective Time (other than shares held in a fiduciary capacity
or in connection with debts previously contracted) shall, at the
Effective Time, cease to exist, and the certificates for such
shares shall be canceled as promptly as practicable thereafter,
and no payment or distribution shall be made in consideration
therefor.
3.1.3. Subject to the provisions of this Article III,
each share of ABNJ Common Stock issued and outstanding
immediately prior to the Effective Time (other than Treasury
Stock) shall become and be converted into, as provided in and
subject to the limitations set forth in this Agreement, the
right to receive at the election of the holder thereof as
provided in Section 3.2, the following, without interest:
(A) for each share of ABNJ Common Stock with respect to
which an election to receive cash has been effectively made and
not revoked or lost, pursuant to Section 3.2 (a “Cash
Election”), cash from Investors in an amount equal to
$12.50 (the “Cash Consideration”) (collectively,
“Cash Election Shares”);
(B) for each share of ABNJ Common Stock with respect to
which an election to receive Investors Common Stock has been
effectively made and not revoked or lost, pursuant to
Section 3.2 (a “Stock Election”),
0.9218 shares (“the Exchange Ratio”) of Investors
Common (the “Stock Consideration”) (collectively, the
“Stock Election Shares”);
(C) a combination of the Cash Consideration and the Stock
Consideration (a “Mixed Election” and collectively the
“Mixed Election Shares”); and
(D) for each share of ABNJ Common Stock other than shares
as to which a Cash Election, a Stock Election or a Mixed
Election has been effectively made and not revoked or lost,
pursuant to Section 3.2 (collectively, “Non-Election
Shares”), such Stock Consideration
and/or Cash
Consideration as is determined in accordance with
Section 3.2.
3.1.4. After the Effective Time, shares of ABNJ Common
Stock shall be no longer outstanding and shall automatically be
canceled and shall cease to exist, and shall thereafter by
operation of this section represent the right to receive the
Merger Consideration and any dividends or distributions with
respect thereto or any dividends or distributions with a record
date prior to the Effective Time that were declared or made by
ABNJ on such shares of ABNJ Common Stock in accordance with the
terms of this Agreement on or prior to the Effective Time and
which remain unpaid at the Effective Time.
3.1.5. In the event Investors changes (or establishes a
record date for changing) the number of, or provides for the
exchange of, shares of Investors Common Stock issued and
outstanding prior to the Effective Time as a result of a stock
split, stock dividend, recapitalization, reclassification, or
similar transaction with respect to the outstanding Investors
Common Stock and the record date therefor shall be prior to the
Effective Time, the Exchange Ratio shall be proportionately and
appropriately adjusted; provided, that no such adjustment shall
be made with regard to Investors Common Stock if Investors
issues additional shares of Common Stock and receives fair
market value consideration for such shares.
3.1.6. The consideration that any one ABNJ shareholder may
receive pursuant to Article III is referred to herein as
the “Merger Consideration.”
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3.2. Election Procedures.
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, 70% 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.”
3.2.2. An election form and other appropriate and customary
transmittal materials (which shall specify that delivery shall
be effected, and risk of loss and title to the Certificates
shall pass, only upon proper delivery of such Certificates to
the Exchange Agent), in such form as ABNJ and Investors shall
mutually agree (“Election Form”), shall be mailed no
more than 40 business days and no less than 20 business days
prior to the anticipated Effective Time or on such earlier date
as Investors and ABNJ shall mutually agree (the “Mailing
Date”) to each holder of record of ABNJ Common Stock as of
five business days prior to the Mailing Date (the “Election
Form Record Date”). Each Election Form shall permit
such holder, subject to the allocation and election procedures
set forth in this Section 3.2, (i) to elect to receive
the Cash Consideration for all of the shares of ABNJ Common
Stock held by such holder, in accordance with
Section 3.1.3, (ii) to elect to receive the Stock
Consideration for all of such shares, in accordance with
Section 3.1.3, (iii) elect to receive the Stock
Consideration for a part of such holder’s ABNJ Common Stock
and the Cash consideration for the remaining part of such
holder’s ABNJ Common Stock, or (iv) to indicate that
such record holder has no preference as to the receipt of cash
or Investors Common Stock for such shares. A holder of record of
shares of ABNJ Common Stock who holds such shares as nominee,
trustee or in another representative capacity (a
“Representative”) may submit multiple Election Forms,
provided that each such Election Form covers all the shares of
ABNJ Common Stock held by such Representative for a particular
beneficial owner. Any shares of ABNJ Common Stock with respect
to which the holder thereof shall not, as of the Election
Deadline, have made an election by submission to the Exchange
Agent of an effective, properly completed Election Form shall be
deemed Non-Election Shares.
3.2.3. To be effective, a properly completed Election Form
shall be submitted to the Exchange Agent on or before
5:00 p.m., New York City time, on the 25th day
following the Mailing Date (or such other time and date as
Investors and ABNJ may mutually agree) (the “Election
Deadline”); provided, however, that the Election Deadline
may not occur on or after the Closing Date. ABNJ shall use its
reasonable best efforts to make available up to two separate
Election Forms, or such additional Election Forms as Investors
may permit, to all persons who become holders (or beneficial
owners) of ABNJ Common Stock between the Election
Form Record Date and the close of business on the business
day prior to the Election Deadline. ABNJ shall provide to the
Exchange Agent all information reasonably necessary for it to
perform as specified herein. An election shall have been
properly made only if the Exchange Agent shall have actually
received a properly completed Election Form by the Election
Deadline. An Election Form shall be deemed properly completed
only if accompanied by one or more Certificates (or customary
affidavits and indemnification regarding the loss or destruction
of such Certificates or the guaranteed delivery of such
Certificates) representing all shares of ABNJ Common Stock
covered by such Election Form, together with duly executed
transmittal materials included with the Election Form. If an
ABNJ shareholder either (i) does not submit a properly
completed Election Form in a timely fashion or (ii) revokes
its Election Form prior to the Election Deadline (without later
submitting a properly completed Election Form prior to the
Election Deadline), the shares of ABNJ Common Stock held by such
shareholder shall be designated as Non-Election Shares. Any
Election Form may be revoked or changed by the person submitting
such Election Form to the Exchange Agent by written notice
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to the Exchange Agent only if such notice of revocation or
change is actually received by the Exchange Agent at or prior to
the Election Deadline. Investors shall cause the Certificate or
Certificates relating to any revoked Election Form to be
promptly returned without charge to the person submitting the
Election Form to the Exchange Agent. Subject to the terms of
this Agreement and of the Election Form, the Exchange Agent
shall have discretion to determine when any election,
modification or revocation is received and whether any such
election, modification or revocation has been properly made. All
Elections shall be revoked automatically if the Exchange Agent
is notified in writing by Investors or ABNJ, upon exercise by
Investors or ABNJ of its respective or their mutual rights to
terminate this Agreement to the extent provided under
Article XI, that this Agreement has been terminated in
accordance with Article XI.
3.2.4. If the aggregate number of shares of ABNJ Common
Stock with respect to which Stock Elections shall have been made
(the “Stock Election Number”) exceeds the Stock
Conversion Number, then all Cash Election Shares and all
Non-Election Shares of each holder thereof shall be converted
into the right to receive the Cash Consideration, and Stock
Election Shares of each holder thereof will be converted into
the right to receive the Stock Consideration in respect of that
number of Stock Election Shares equal to the product obtained by
multiplying (x) the number of Stock Election Shares held by
such holder by (y) a fraction, the numerator of which is
the Stock Conversion Number and the denominator of which is the
Stock Election Number, with the remaining number of such
holder’s Stock Election Shares being converted into the
right to receive the Cash Consideration.
3.2.5. If the Stock Election Number is less than the Stock
Conversion Number (the amount by which the Stock Conversion
Number exceeds the Stock Election Number being referred to
herein as the “Shortfall Number”), then all Stock
Election Shares shall be converted into the right to receive the
Stock Consideration and the Non-Election Shares and Cash
Election Shares shall be treated in the following manner:
(A) If the Shortfall Number is less than or equal to the
number of Non-Election Shares, then all Cash Election Shares
shall be converted into the right to receive the Cash
Consideration and the Non-Election Shares of each holder thereof
shall convert into the right to receive the Stock Consideration
in respect of that number of Non-Election Shares equal to the
product obtained by multiplying (x) the number of
Non-Election Shares held by such holder by (y) a fraction,
the numerator of which is the Shortfall Number and the
denominator of which is the total number of Non-Election Shares,
with the remaining number of such holder’s Non-Election
Shares being converted into the right to receive the Cash
Consideration; or
(B) If the Shortfall Number exceeds the number of
Non-Election Shares, then all Non-Election Shares shall be
converted into the right to receive the Stock Consideration and
Cash Election Shares of each holder thereof shall convert into
the right to receive the Stock Consideration in respect of that
number of Cash Election Shares equal to the product obtained by
multiplying (x) the number of Cash Election Shares held by
such holder by (y) a fraction, the numerator of which is
the amount by which (1) the Shortfall Number exceeds
(2) the total number of Non-Election Shares and the
denominator of which is the total number of Cash Election
Shares, with the remaining number of such holder’s Cash
Election Shares being converted into the right to receive the
Cash Consideration.
3.2.6. Adjustment to Preserve Tax
Treatment. Notwithstanding anything in this
Article III to the contrary, if the aggregate value of the
Stock Consideration to be delivered as of the Effective Time,
less the amount of cash paid in lieu of fractional shares of
Investors Common Stock pursuant to Section 3.2.7 (the
“Stock Value”), is less than 42.5% of the sum of
(i) the aggregate value of the Merger Consideration to be
delivered as of the Effective Time, plus (ii) the value of
any consideration described in Treasury Regulations
Section 1.368-1(e)(1)(ii),
plus (iii) the value of any consideration paid by Investors
or any of its Subsidiaries (or any “related person” to
Investors or any of its Subsidiaries within the meaning of
Treasury Regulations
Section 1.368-1(e)(3))
to acquire shares of ABNJ Common Stock prior to the Effective
Time (such sum, the “Aggregate Value”), then Investors
may reduce the number of shares of outstanding ABNJ Common Stock
entitled to receive the Cash Consideration and correspondingly
increase the number of shares of ABNJ Common Stock entitled to
receive the Stock Consideration by the minimum amount necessary
to cause the Stock Value to equal 42.5% of the Aggregate Value.
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3.2.7. No Fractional
Shares. Notwithstanding anything to the contrary
contained herein, no certificates or scrip representing
fractional shares of Investors Common Stock shall be issued upon
the surrender for exchange of Certificates, no dividend or
distribution with respect to Investors Common Stock shall be
payable on or with respect to any fractional share interest, and
such fractional share interests shall not entitle the owner
thereof to vote or to any other rights of a shareholder of
Investors. In lieu of the issuance of any such fractional share,
Investors shall pay to each former holder of ABNJ Common Stock
who otherwise would be entitled to receive a fractional share of
Investors Common Stock, an amount in cash, rounded to the
nearest cent and without interest, equal to the product of
(i) the fraction of a share to which such holder would
otherwise have been entitled and (ii) 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 Closing Date. For purposes of
determining any fractional share interest, all shares of ABNJ
Common Stock owned by a ABNJ shareholder shall be combined so as
to calculate the maximum number of whole shares of Investors
Common Stock issuable to such ABNJ shareholder.
3.3. Procedures for Exchange of ABNJ Common
Stock.
3.3.1. Investors to Make Merger Consideration
Available. After the Election Deadline and no
later than the Closing Date, Investors shall deposit, or shall
cause to be deposited, with the Exchange Agent for the benefit
of the holders of ABNJ Common Stock, for exchange in accordance
with this Section 3.3, certificates representing the shares
of Investors Common Stock and an aggregate amount of cash
sufficient to pay the aggregate amount of cash payable pursuant
to this Article III (including any cash that may be payable
in lieu of any fractional shares of ABNJ Common Stock) (such
cash and certificates for shares of Investors Common Stock,
together with any dividends or distributions with respect
thereto, being hereinafter referred to as the “Exchange
Fund”).
3.3.2. Exchange of
Certificates. Investors shall take all steps
necessary to cause the Exchange Agent, within five
(5) business days after the Effective Time, to mail to each
holder of a Certificate or Certificates, a form letter of
transmittal for return to the Exchange Agent and instructions
for use in effecting the surrender of the Certificates for the
Merger Consideration and cash in lieu of fractional shares, if
any, into which the ABNJ Common Stock represented by such
Certificates shall have been converted as a result of the
Merger. The letter of transmittal shall specify that delivery
shall be effected, and risk of loss and title to the
Certificates shall pass, only upon delivery of the Certificates
to the Exchange Agent. Upon proper surrender of a Certificate
for exchange and cancellation to the Exchange Agent, together
with a properly completed letter of transmittal, duly executed,
the holder of such Certificate shall be entitled to receive in
exchange therefor, as applicable, (i) a certificate
representing that number of shares of Investors Common Stock (if
any) to which such former holder of ABNJ Common Stock shall have
become entitled pursuant to the provisions of Section 3.1
or 3.2 hereof, (ii) a check representing that amount of
cash (if any) to which such former holder of ABNJ Common Stock
shall have become entitled pursuant to the provisions of
Section 3.1 or 3.2 hereof and (iii) a check
representing the amount of cash (if any) payable in lieu of
fractional shares of Investors Common Stock, which such former
holder has the right to receive in respect of the Certificate
surrendered pursuant to the provisions of Section 3.2, and
the Certificate so surrendered shall forthwith be cancelled. No
interest will be paid or accrued on the cash payable in lieu of
fractional shares.
3.3.3. Rights of Certificate Holders after the Effective
Time. The holder of a Certificate that prior to
the Merger represented issued and outstanding ABNJ Common Stock
shall have no rights, after the Effective Time, with respect to
such ABNJ Common Stock except to surrender the Certificate in
exchange for the Merger Consideration as provided in this
Agreement. No dividends or other distributions declared after
the Effective Time with respect to Investors Common Stock shall
be paid to the holder of any unsurrendered Certificate until the
holder thereof shall surrender such Certificate in accordance
with this Section 3.3. After the surrender of a Certificate
in accordance with this Section 3.3, the record holder
thereof shall be entitled to receive any such dividends or other
distributions, without any interest thereon, which theretofore
had become payable with respect to shares of Investors Common
Stock represented by such Certificate.
3.3.4. Surrender by Persons Other than Record
Holders. If the Person surrendering a Certificate
and signing the accompanying letter of transmittal is not the
record holder thereof, then it shall be a condition of
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the payment of the Merger Consideration that: (i) such
Certificate is properly endorsed to such Person or is
accompanied by appropriate stock powers, in either case signed
exactly as the name of the record holder appears on such
Certificate, and is otherwise in proper form for transfer, or is
accompanied by appropriate evidence of the authority of the
Person surrendering such Certificate and signing the letter of
transmittal to do so on behalf of the record holder; and
(ii) the person requesting such exchange shall pay to the
Exchange Agent in advance any transfer or other taxes required
by reason of the payment to a person other than the registered
holder of the Certificate surrendered, or required for any other
reason, or shall establish to the satisfaction of the Exchange
Agent that such tax has been paid or is not payable.
3.3.5. Closing of Transfer Books. From
and after the Effective Time, there shall be no transfers on the
stock transfer books of ABNJ of the ABNJ Common Stock that were
outstanding immediately prior to the Effective Time. If, after
the Effective Time, Certificates representing such shares are
presented for transfer to the Exchange Agent, they shall be
exchanged for the Merger Consideration and canceled as provided
in this Section 3.3.
3.3.6. Return of Exchange Fund. At any
time following the six (6) month period after the Effective
Time, Investors shall be entitled to require the Exchange Agent
to deliver to it any portions of the Exchange Fund which had
been made available to the Exchange Agent and not disbursed to
holders of Certificates (including, without limitation, all
interest and other income received by the Exchange Agent in
respect of all funds made available to it), and thereafter such
holders shall be entitled to look to Investors (subject to
abandoned property, escheat and other similar laws) with respect
to any Merger Consideration that may be payable upon due
surrender of the Certificates held by them. Notwithstanding the
foregoing, neither Investors nor the Exchange Agent shall be
liable to any holder of a Certificate for any Merger
Consideration delivered in respect of such Certificate to a
public official pursuant to any abandoned property, escheat or
other similar law.
3.3.7. Lost, Stolen or Destroyed
Certificates. In the event any Certificate shall
have been lost, stolen or destroyed, upon the making of an
affidavit of that fact by the person claiming such Certificate
to be lost, stolen or destroyed and, if required by Investors,
the posting by such person of a bond in such amount as Investors
may reasonably direct as indemnity against any claim that may be
made against it with respect to such Certificate, the Exchange
Agent will issue in exchange for such lost, stolen or destroyed
Certificate the Merger Consideration deliverable in respect
thereof.
3.3.8. Withholding. Investors or the
Exchange Agent will be entitled to deduct and withhold from the
consideration otherwise payable pursuant to this Agreement or
the transactions contemplated hereby to any holder of ABNJ
Common Stock such amounts as Investors (or any Affiliate
thereof) or the Exchange Agent are required to deduct and
withhold with respect to the making of such payment under the
Code, or any applicable provision of U.S. federal, state,
local or
non-U.S. tax
law. To the extent that such amounts are properly withheld by
Investors or the Exchange Agent, such withheld amounts will be
treated for all purposes of this Agreement as having been paid
to the holder of the ABNJ Common Stock in respect of whom such
deduction and withholding were made by Investors or the Exchange
Agent.
3.3.9. Treatment of ABNJ Options. ABNJ
DISCLOSURE SCHEDULE 4.3.1 sets forth all of the outstanding
ABNJ Options as of the date hereof. Prior to and effective as of
the Effective Time, ABNJ shall take all actions necessary to
terminate the ABNJ Equity Plans. Holders of all unexercised ABNJ
Options as of the Effective Time will receive, in cancellation
of their ABNJ Options, a cash payment from ABNJ immediately
prior to the Effective Time, in an amount equal to the product
of (x) the number of shares of ABNJ Common Stock provided
for in such ABNJ Option and (y) the excess, if any, of
$12.50 over the exercise price per share provided for in such
ABNJ Option (the “Cash Option Payment”), which cash
payment shall be treated as compensation and shall be net of any
applicable federal or state withholding tax. Subject to the
foregoing, ABNJ Options not exercised prior to the Effective
Time shall terminate. Prior to the Effective Time, ABNJ shall
obtain the written consent of each option holder to the
cancellation of the ABNJ Options in exchange for the Cash Option
Payment.
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3.4. Reservation of Shares.
3.4.1. Investors shall reserve for issuance a sufficient
number of shares of the Investors Common Stock for the purpose
of issuing shares of Investors Common Stock to the ABNJ
shareholders in accordance with this Article III.
3.5. Modification of Merger Consideration
Notwithstanding anything in this Agreement to the contrary, in
the event that by May 31, 2009 Investors has not received
Regulatory Approvals to issue shares of Investors Common Stock
in the Merger, in accordance with the terms hereof, then
Investors may elect to proceed with the Merger on the basis of
converting each outstanding share of ABNJ Common Stock into the
right to receive the Cash Consideration, all references to
Merger Consideration shall mean the Cash Consideration, and the
applicable provisions of this Agreement shall be deemed modified
accordingly. In such event, and notwithstanding anything
contained in Section 2.7 hereof, the Merger shall be
accomplished by merging a newly formed, wholly owned first tier
subsidiary of Investors with and into ABNJ.
ARTICLE IV
Representations
and Warranties of ABNJ
ABNJ represents and warrants to Investors that the statements
contained in this Article IV are correct and complete as of
the date of this Agreement and will be correct and complete as
of the Closing Date (as though made then and as though the
Closing Date were substituted for the date of this Agreement
throughout this Article IV), subject to the standard set
forth in Section 4.1 and except as set forth in the ABNJ
DISCLOSURE SCHEDULE delivered by ABNJ to Investors on the date
hereof, and except as to any representation or warranty which
specifically relates to an earlier date, which only need be so
correct as of such earlier date. ABNJ has made a good faith
effort to ensure that the disclosure on each schedule of the
ABNJ DISCLOSURE SCHEDULE corresponds to the section referenced
herein. However, for purposes of the ABNJ DISCLOSURE SCHEDULE,
any item disclosed on any schedule therein is deemed to be fully
disclosed with respect to all schedules under which such item
may be relevant as and to the extent that it is reasonably clear
on the face of such schedule that such item applies to such
other schedule. References to the Knowledge of ABNJ shall
include the Knowledge of American Bank.
4.1. Standard.
No representation or warranty of ABNJ contained in this
Article IV shall be deemed untrue or incorrect, and ABNJ
shall not 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 paragraph of
Article IV, has had or is reasonably expected to have a
Material Adverse Effect, disregarding for these purposes
(x) any qualification or exception for, or reference to,
materiality in any such representation or warranty and
(y) any use of the terms “material”,
“materially”, “in all material respects”,
“Material Adverse Effect” or similar terms or phrases
in any such representation or warranty. The foregoing standard
shall not apply to representations and warranties contained in
Sections 4.2 (other than the last sentence of
Section 4.2.1 and 4.2.2, 4.2.4 and 4.2.5), 4.3, 4.4, 4.8,
4.9.5, 4.13.5, 4.13.8, 4.13.10 and 4.13.11, which shall be
deemed untrue, incorrect and breached if they are not true and
correct in all material respects based on the qualifications and
standards therein contained. Provided further, that as to the
representations contained in Sections 4.13.5, 4.13.8,
4.13.10, 4.13.11, if there is a breach that relates to an
undisclosed payment, expense accrual or cost in excess of
$300,000 (either individually or in the aggregate), such breach
shall be considered material.
4.2. Organization.
4.2.1. ABNJ is a corporation duly organized, validly
existing and in good standing under the laws of the State of New
Jersey, and is duly registered as a savings and loan holding
company under the HOLA. ABNJ has full corporate power and
authority to carry on its business as now conducted and is duly
licensed or
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qualified to do business in the states of the United States and
foreign jurisdictions where its ownership or leasing of property
or the conduct of its business requires such qualification.
4.2.2. American Bank is a federally chartered savings bank
duly organized and validly existing under the laws of the United
States. The deposits of American Bank are insured by the FDIC to
the fullest extent permitted by law, and all premiums and
assessments required to be paid in connection therewith have
been paid by American Bank when due. American Bank is a member
in good standing of the FHLB and owns the requisite amount of
stock therein.
4.2.3. ABNJ DISCLOSURE SCHEDULE 4.2.3 sets forth each
ABNJ Subsidiary. Each ABNJ Subsidiary is a corporation or
limited liability company duly organized, validly existing and
in good standing under the laws of its jurisdiction of
incorporation or organization.
4.2.4. The respective minute books of ABNJ, American Bank
and each other ABNJ Subsidiary accurately records, in all
material respects, all material corporate actions of their
respective shareholders and boards of directors (including
committees).
4.2.5. Prior to the date of this Agreement, ABNJ has made
available to Investors true and correct copies of the
certificate of incorporation or charter and bylaws of ABNJ,
American Bank and each other ABNJ Subsidiary.
4.3. Capitalization.
4.3.1. The authorized capital stock of ABNJ consists of
20,000,000 shares of common stock, $0.10 par value per
share, of which 10,859,692 shares are outstanding, validly
issued, fully paid and nonassessable and free of preemptive
rights, and 10,000,000 shares of Preferred Stock, par value
$0.10 per share, of which there are no shares issued and
outstanding. There are 3,668,261 shares of ABNJ Common
Stock held by ABNJ as Treasury Stock. Neither ABNJ nor any ABNJ
Subsidiary has or is bound by any Rights of any character
relating to the purchase, sale or issuance or voting of, or
right to receive dividends or other distributions on any shares
of ABNJ Common Stock, or any other security of ABNJ or a ABNJ
Subsidiary or any securities representing the right to vote,
purchase or otherwise receive any shares of ABNJ Common Stock or
any other security of ABNJ or any ABNJ Subsidiary, other than
shares issuable under the ABNJ Equity Plans. ABNJ DISCLOSURE
SCHEDULE 4.3.1 sets forth the name of each holder of
options to purchase ABNJ Common Stock, the number of shares each
such individual may acquire pursuant to the exercise of such
options, the grant and vesting dates, and the exercise price
relating to the options held.
4.3.2. ABNJ owns all of the capital stock of American Bank,
free and clear of any lien or encumbrance. Except for the ABNJ
Subsidiaries, ABNJ does not possess, directly or indirectly, any
material equity interest in any corporate entity, except for
equity interests held in the investment portfolios of ABNJ
Subsidiaries, equity interests held by ABNJ Subsidiaries in a
fiduciary capacity, and equity interests held in connection with
the lending activities of ABNJ Subsidiaries, including stock in
the FHLB. Either ABNJ or American Bank owns all of the
outstanding shares of capital stock of each ABNJ Subsidiary free
and clear of all liens, security interests, pledges, charges,
encumbrances, agreements and restrictions of any kind or nature.
4.3.3. To ABNJ’s Knowledge, no Person or
“group” (as that term is used in Section 13(d)(3)
of the Exchange Act), is the beneficial owner (as defined in
Section 13(d) of the Exchange Act) of 5% or more of the
outstanding shares of ABNJ Common Stock, except as listed on
ABNJ’s DISCLOSURE SCHEDULE 4.3.3.
4.4. Authority; No Violation.
4.4.1. ABNJ has full corporate power and authority to
execute and deliver this Agreement and, subject to the receipt
of the Regulatory Approvals and the approval of this Agreement
by ABNJ’s shareholders, to consummate the transactions
contemplated hereby. The execution and delivery of this
Agreement by ABNJ and the completion by ABNJ of the transactions
contemplated hereby, including the Merger, have been duly and
validly approved by the Board of Directors of ABNJ, and no other
corporate proceedings on the part of ABNJ, except for the
approval of the ABNJ shareholders, is necessary to complete the
transactions contemplated hereby, including the Merger. This
Agreement has been duly and validly executed and delivered
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by ABNJ, and subject to approval by the shareholders of ABNJ and
receipt of the Regulatory Approvals and due and valid execution
and delivery of this Agreement by Investors, constitutes the
valid and binding obligation of ABNJ, enforceable against ABNJ
in accordance with its terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors’ rights
generally, and subject, as to enforceability, to general
principles of equity.
4.4.2. Subject to receipt of Regulatory Approvals and
ABNJ’s and Investors’ compliance with any conditions
contained therein, and to the receipt of the approval of the
shareholders of ABNJ, (A) the execution and delivery of
this Agreement by ABNJ, (B) the consummation of the
transactions contemplated hereby, and (C) compliance by
ABNJ with any of the terms or provisions hereof will not
(i) conflict with or result in a breach of any provision of
the certificate of incorporation or bylaws of ABNJ or any ABNJ
Subsidiary or the charter and bylaws of American Bank;
(ii) violate any statute, code, ordinance, rule,
regulation, judgment, order, writ, decree or injunction
applicable to ABNJ or any ABNJ Subsidiary or any of their
respective properties or assets; or (iii) violate, conflict
with, result in a breach of any provisions of, constitute a
default (or an event which, with notice or lapse of time, or
both, would constitute a default), under, result in the
termination of, accelerate the performance required by, or
result in a right of termination or acceleration or the creation
of any lien, security interest, charge or other encumbrance upon
any of the properties or assets of ABNJ or American Bank under
any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, deed of trust, license, lease, agreement or
other investment or obligation to which ABNJ or American Bank is
a party, or by which they or any of their respective properties
or assets may be bound or affected, except for such violations,
conflicts, breaches or defaults under clause (ii) or
(iii) hereof which, either individually or in the
aggregate, will not have a Material Adverse Effect on ABNJ and
the ABNJ Subsidiaries taken as a whole.
4.5. Consents.
Except for (a) filings with Bank Regulators, the receipt of
the Regulatory Approvals, and compliance with any conditions
contained therein and filing of Articles of Combination with
Bank Regulators, (b) the filing of the Certificate of
Merger with the Secretary of State of the States of Delaware and
New Jersey, (c) the filing with the SEC of (i) the
Merger Registration Statement and (ii) such reports under
Sections 13(a), 13(d), 13(g) and 16(a) of the Exchange Act
as may be required in connection with this Agreement and the
transactions contemplated hereby and the obtaining from the SEC
of such orders as may be required in connection therewith,
(d) approval of the listing of Investors Common Stock to be
issued in the Merger on the Nasdaq, (e) such filings and
approvals as are required to be made or obtained under the
securities or “Blue Sky” laws of various states in
connection with the issuance of the shares of Investors Common
Stock pursuant to this Agreement, and (f) the approval of
this Agreement by the requisite vote of the shareholders of
ABNJ, no consents, waivers or approvals of, or filings or
registrations with, any Governmental Entity are necessary, and,
to ABNJ’s Knowledge, no consents, waivers or approvals of,
or filings or registrations with, any other third parties are
necessary, in connection with (x) the execution and
delivery of this Agreement by ABNJ, and (y) the completion
of the Merger and the Bank Merger. ABNJ has no reason to believe
that (i) any Regulatory Approvals or other required
consents or approvals will not be received, or that
(ii) any public body or authority, the consent or approval
of which is not required or to which a filing is not required,
will object to the completion of the transactions contemplated
by this Agreement.
4.6. Financial Statements.
4.6.1. ABNJ has previously made available to Investors the
ABNJ Regulatory Reports. The ABNJ Regulatory Reports have been
prepared in all material respects in accordance with applicable
regulatory accounting principles and practices throughout the
periods covered by such statements.
4.6.2. ABNJ has previously made available to Investors the
ABNJ Financial Statements. The ABNJ Financial Statements have
been prepared in accordance with GAAP, and (including the
related notes where applicable) fairly present in each case in
all material respects (subject in the case of the unaudited
interim statements to normal year-end adjustments), the
consolidated financial position, results of operations and cash
flows of ABNJ and the ABNJ Subsidiaries on a consolidated basis
as of and for the respective periods ending
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on the dates thereof, in accordance with GAAP during the periods
involved, except as indicated in the notes thereto, or in the
case of unaudited statements, as permitted by
Form 10-Q.
4.6.3. At the date of each balance sheet included in the
ABNJ Financial Statements or the ABNJ Regulatory Reports,
neither ABNJ nor American Bank, as applicable, had any
liabilities, obligations or loss contingencies of any nature
(whether absolute, accrued, contingent or otherwise) of a type
required to be reflected in such ABNJ Financial Statements or
ABNJ Regulatory Reports or in the footnotes thereto which are
not fully reflected or reserved against therein or fully
disclosed in a footnote thereto, except for liabilities,
obligations and loss contingencies which are not material
individually or in the aggregate or which are incurred in the
ordinary course of business, consistent with past practice, and
except for liabilities, obligations and loss contingencies which
are within the subject matter of a specific representation and
warranty herein and subject, in the case of any unaudited
statements, to normal, recurring audit adjustments and the
absence of footnotes.
4.6.4. The records, systems, controls, data and information
of ABNJ and its Subsidiaries are recorded, stored, maintained
and operated under means (including any electronic, mechanical
or photographic process, whether computerized or not) that are
under the exclusive ownership and direct control of ABNJ or its
Subsidiaries or accountants (including all means of access
thereto and therefrom), except for any non-exclusive ownership
and non-direct control that would not reasonably be expected to
have a material adverse effect on the system of internal
accounting controls described below in this Section 4.6.4.
ABNJ (x) has implemented and maintains a system of internal
control over financial reporting (as required by
Rule 13a-15(a)
of the Exchange Act) that is designed to provide reasonable
assurances regarding the reliability of financial reporting and
the preparation of its financial statements for external
purposes in accordance with GAAP, (y) has implemented and
maintains disclosure controls and procedures (as defined in
Rule 13a-15(e)
of the Exchange Act) to ensure that material information
relating to ABNJ, including its consolidated Subsidiaries, is
made known to the chief executive officer and the chief
financial officer of ABNJ by others within those entities, and
(z) has disclosed, based on its most recent evaluation
prior to the date hereof, to ABNJ’s outside auditors and
the audit committee of ABNJ’s Board of Directors
(i) any significant deficiencies and material weaknesses in
the design or operation of internal control over financial
reporting (as defined in
Rule 13a-15(f)
of the Exchange Act) which are reasonably likely to adversely
affect ABNJ’s ability to record, process, summarize and
report financial information and (ii) any fraud, whether or
not material, that involves management or other employees who
have a significant role in ABNJ’s internal control over
financial reporting. These disclosures (if any) were made in
writing by management to ABNJ’s auditors and audit
committee and a copy has previously been made available to
Investors. As of the date hereof, to the knowledge of ABNJ, its
chief executive officer and chief financial officer will be able
to give the certifications required pursuant to the rules and
regulations adopted pursuant to Section 302 of the
Xxxxxxxx-Xxxxx Act, without qualification, when next due.
4.6.5. Since October 1, 2006, (i) neither ABNJ
nor any of its Subsidiaries nor, to the knowledge of ABNJ, any
director, officer, employee, auditor, accountant or
representative of ABNJ or any of its Subsidiaries has received
or otherwise had or obtained knowledge of any material
complaint, allegation, assertion or claim, whether written or
oral, regarding the accounting or auditing practices,
procedures, methodologies or methods of ABNJ or any of its
Subsidiaries or their respective internal accounting controls,
including any material complaint, allegation, assertion or claim
that ABNJ or any of its Subsidiaries has engaged in questionable
accounting or auditing practices, and (ii) no attorney
representing ABNJ or any of its Subsidiaries, whether or not
employed by ABNJ or any of its Subsidiaries, has reported
evidence of a material violation of securities laws, breach of
fiduciary duty or similar violation by ABNJ or any of its
officers, directors, employees or agents to the Board of
Directors of ABNJ or any committee thereof or to any director or
officer of ABNJ.
4.7. Taxes.
Except as set forth in ABNJ DISCLOSURE SCHEDULE 4.7, ABNJ
and the ABNJ Subsidiaries that are at least 80 percent
owned by ABNJ are members of the same affiliated group within
the meaning of Code Section 1504(a). ABNJ has duly filed
all federal, state and material local tax returns required to be
filed by or with respect to ABNJ and every ABNJ Subsidiary on or
prior to the Closing Date, taking into account any
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extensions (all such returns, to ABNJ’s Knowledge, being
accurate and correct in all material respects) and has duly paid
or made provisions for the payment of all material federal,
state and local taxes which have been incurred by or are due or
claimed to be due from ABNJ and any ABNJ Subsidiary by any
taxing authority or pursuant to any written tax sharing
agreement on or prior to the Closing Date other than taxes or
other charges which (i) are not delinquent, (ii) are
being contested in good faith, or (iii) have not yet been
fully determined. Except as set forth in ABNJ DISCLOSURE
SCHEDULE 4.7(b), as of the date of this Agreement, ABNJ has
received no written notice of, and to ABNJ’s Knowledge
there is no audit examination, deficiency assessment, tax
investigation or refund litigation with respect to any taxes of
ABNJ or any of its Subsidiaries, and no claim has been made by
any authority in a jurisdiction where ABNJ or any of its
Subsidiaries do not file tax returns that ABNJ or any such
Subsidiary is subject to taxation in that jurisdiction. Except
as set forth in ABNJ DISCLOSURE SCHEDULE 4.7 (c), ABNJ and
its Subsidiaries have not executed an extension or waiver of any
statute of limitations on the assessment or collection of any
material tax due that is currently in effect. ABNJ and each of
its Subsidiaries has withheld and paid all taxes required to
have been withheld and paid in connection with amounts paid or
owing to any employee, independent contractor, creditor,
shareholder or other third party, and ABNJ and each of its
Subsidiaries, to ABNJ’s Knowledge, has timely complied with
all applicable information reporting requirements under
Part III, Subchapter A of Chapter 61 of the Code and
similar applicable state and local information reporting
requirements.
4.8. No Material Adverse Effect.
ABNJ has not suffered any Material Adverse Effect since
September 30, 2007 and no event has occurred or
circumstance arisen since that date which, in the aggregate, has
had or is reasonably likely to have a Material Adverse Effect on
ABNJ.
4.9. Material Contracts; Leases; Defaults.
4.9.1. Except as set forth in ABNJ DISCLOSURE
SCHEDULE 4.9.1, neither ABNJ nor any ABNJ Subsidiary is a
party to or subject to: (i) any employment, consulting or
severance contract or material arrangement with any past or
present officer, director or employee of ABNJ or any ABNJ
Subsidiary, except for “at will” arrangements;
(ii) any plan, material arrangement or contract providing
for bonuses, pensions, options, deferred compensation,
retirement payments, profit sharing or similar material
arrangements for or with any past or present officers, directors
or employees of ABNJ or any ABNJ Subsidiary; (iii) any
collective bargaining agreement with any labor union relating to
employees of ABNJ or any ABNJ Subsidiary; (iv) any
agreement which by its terms limits the payment of dividends by
ABNJ or any ABNJ Subsidiary; (v) any instrument evidencing
or related to material indebtedness for borrowed money whether
directly or indirectly, by way of purchase money obligation,
conditional sale, lease purchase, guaranty or otherwise, in
respect of which ABNJ or any ABNJ Subsidiary is an obligor to
any person, which instrument evidences or relates to
indebtedness other than deposits, repurchase agreements, FHLB
advances, bankers’ acceptances, and “treasury tax and
loan” accounts and transactions in “federal
funds” in each case established in the ordinary course of
business consistent with past practice, or which contains
financial covenants or other restrictions (other than those
relating to the payment of principal and interest when due)
which would be applicable on or after the Closing Date to
Investors or any Investors Subsidiary; (vi) any other
agreement, written or oral, that obligates ABNJ or any ABNJ
Subsidiary for the payment of more than $25,000 annually or for
the payment of more than $50,000 over its remaining term, which
is not terminable without cause on 60 days’ or less
notice without penalty or payment, or (vii) any agreement
(other than this Agreement), contract, arrangement, commitment
or understanding (whether written or oral) that restricts or
limits in any material way the conduct of business by ABNJ or
any ABNJ Subsidiary (it being understood that any non-compete or
similar provision shall be deemed material).
4.9.2. Each real estate lease that requires the consent of
the lessor or its agent resulting from the Merger or the Bank
Merger by virtue of the terms of any such lease, is listed in
ABNJ DISCLOSURE SCHEDULE 4.9.2 identifying the section of
the lease that contains such prohibition or restriction. Subject
to any consents that may be required as a result of the
transactions contemplated by this Agreement, to its Knowledge,
neither ABNJ nor any ABNJ Subsidiary is in default in any
material respect under any material contract, agreement,
commitment, arrangement, lease, insurance policy or other
instrument to which it is a
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party, by which its assets, business, or operations may be bound
or affected, or under which it or its assets, business, or
operations receive benefits, and there has not occurred any
event that, with the lapse of time or the giving of notice or
both, would constitute such a default.
4.9.3. True and correct copies of agreements, contracts,
arrangements and instruments referred to in Section 4.9.1
and 4.9.2 have been made available to Investors on or before the
date hereof, are listed on ABNJ DISCLOSURE SCHEDULE 4.9.1
and are in full force and effect on the date hereof and neither
ABNJ nor any ABNJ Subsidiary (nor, to the Knowledge of ABNJ, any
other party to any such contract, arrangement or instrument) has
materially breached any provision of, or is in default in any
respect under any term of, any such contract, arrangement or
instrument. Except as listed on ABNJ DISCLOSURE
SCHEDULE 4.9.3(a), no party to any material contract,
arrangement or instrument will have the right to terminate any
or all of the provisions of any such contract, arrangement or
instrument as a result of the execution of, and the consummation
of the transactions contemplated by, this Agreement. Except as
set forth in ABNJ DISCLOSURE SCHEDULE 4.9.3(b), no plan,
contract, employment agreement, termination agreement, or
similar agreement or arrangement to which ABNJ or any ABNJ
Subsidiary is a party or under which ABNJ or any ABNJ Subsidiary
may be liable contains provisions which permit an employee or
independent contractor to terminate it without cause and
continue to accrue future benefits thereunder. Except as set
forth in ABNJ DISCLOSURE SCHEDULE 4.9.3(c), no such
agreement, plan, contract, or arrangement (x) provides for
acceleration in the vesting of benefits or payments due
thereunder upon the occurrence of a change in ownership or
control of ABNJ or any ABNJ Subsidiary or upon the occurrence of
a subsequent event; or (y) requires ABNJ or any ABNJ
Subsidiary to provide a benefit in the form of ABNJ Common Stock
or determined by reference to the value of ABNJ Common Stock.
4.9.4. Since December 31, 2007, through and including
the date of this Agreement, except as publicly disclosed by ABNJ
in the Securities Documents filed or furnished by ABNJ prior to
the date hereof, neither ABNJ nor any ABNJ Subsidiary has
(i) except for (A) normal increases for employees
(other than officers and directors subject to the reporting
requirements of Section 16(a) of the Exchange Act) made in
the ordinary course of business consistent with past practice,
or (B) as required by applicable law, increased the wages,
salaries, compensation, pension, or other fringe benefits or
perquisites payable to any executive officer, employee, or
director from the amount thereof in effect as of
December 31, 2007 (which amounts have been previously made
available to Investors), granted any severance or termination
pay, entered into any contract to make or grant any severance or
termination pay (except as required under the terms of
agreements or severance plans listed on ABNJ DISCLOSURE
SCHEDULE 4.13.1, as in effect as of the date hereof), or
paid any bonus other than the customary year-end bonuses in
amounts consistent with past practice, (ii) granted any
options to purchase shares of ABNJ Common Stock, or any right to
acquire any shares of its capital stock to any executive
officer, director or employee other than grants to employees
(other than officers subject to the reporting requirements of
Section 16(a) of the Exchange Act) made in the ordinary
course of business consistent with past practice under ABNJ
Equity Plans, (iii) increased or established any bonus,
insurance, severance, deferred compensation, pension,
retirement, profit sharing, stock option (including, without
limitation, the granting of stock options, stock appreciation
rights, performance awards, or restricted stock awards), stock
purchase or other employee benefit plan, (iv) made any
material election for federal or state income tax purposes,
(v) made any material change in the credit policies or
procedures of ABNJ or any of its Subsidiaries, the effect of
which was or is to make any such policy or procedure less
restrictive in any material respect, (vi) made any material
acquisition or disposition of any assets or properties, or any
contract for any such acquisition or disposition entered into
other than loans and loan commitments, (vii) entered into
any lease of real or personal property requiring annual payments
in excess of $100,000, other than in connection with foreclosed
property or in the ordinary course of business consistent with
past practice, (viii) changed any accounting methods,
principles or practices of ABNJ or its Subsidiaries affecting
its assets, liabilities or businesses, including any reserving,
renewal or residual method, practice or policy or
(ix) suffered any strike, work stoppage, slow-down, or
other labor disturbance.
4.9.5. ABNJ did not apply to participate in the Capital
Purchase Program established by the United States Treasury
Department under the Troubled Assets Relief Program, pursuant to
the Emergency Economic Stabilization Act of 2008.
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4.10. Ownership of Property; Insurance
Coverage.
4.10.1. ABNJ and each ABNJ Subsidiary has good and, as to
real property, marketable title to all material assets and
properties owned by ABNJ or each ABNJ Subsidiary in the conduct
of its businesses, whether such assets and properties are real
or personal, tangible or intangible, including assets and
property reflected in the balance sheets contained in the ABNJ
Regulatory Reports and in the ABNJ Financial Statements or
acquired subsequent thereto (except to the extent that such
assets and properties have been disposed of in the ordinary
course of business, since the date of such balance sheets),
subject to no material encumbrances, liens, mortgages, security
interests or pledges, except (i) those items which secure
liabilities for public or statutory obligations or any discount
with, borrowing from or other obligations to FHLB, inter-bank
credit facilities, or any transaction by an ABNJ Subsidiary
acting in a fiduciary capacity, (ii) statutory liens for
amounts not yet delinquent or which are being contested in good
faith, (iii) non-monetary liens affecting real property
which do not adversely affect the value or use of such real
property, and (iv) those described and reflected in the
ABNJ Financial Statements. ABNJ and the ABNJ Subsidiaries, as
lessee, have the right under valid and existing leases of real
and personal properties used by ABNJ and its Subsidiaries in the
conduct of their businesses to occupy or use all such properties
as presently occupied and used by each of them. Such existing
leases and commitments to lease constitute or will constitute
operating leases for both tax and financial accounting purposes
and the lease expense and minimum rental commitments with
respect to such leases and lease commitments are as disclosed in
all material respects in the notes to the ABNJ Financial
Statements.
4.10.2. With respect to all material agreements pursuant to
which ABNJ or any ABNJ Subsidiary has purchased securities
subject to an agreement to resell, if any, ABNJ or such ABNJ
Subsidiary, as the case may be, has a lien or security interest
(which to ABNJ’s Knowledge is a valid, perfected first
lien) in the securities or other collateral securing the
repurchase agreement, and the value of such collateral equals or
exceeds the amount of the debt secured thereby.
4.10.3. ABNJ and each ABNJ Subsidiary currently maintain
insurance considered by each of them to be reasonable for their
respective operations. Neither ABNJ nor any ABNJ Subsidiary,
except as disclosed in ABNJ DISCLOSURE SCHEDULE 4.10.3(a),
has received notice from any insurance carrier during the past
five years that (i) such insurance will be canceled or that
coverage thereunder will be reduced or eliminated, or
(ii) premium costs (other than with respect to health
insurance) with respect to such policies of insurance will be
substantially increased. There are presently no material claims
pending under such policies of insurance and no notices have
been given by ABNJ or any ABNJ Subsidiary under such policies.
All such insurance is valid and enforceable and in full force
and effect, and within the last three years ABNJ and each ABNJ
Subsidiary has received each type of insurance coverage for
which it has applied and during such periods has not been denied
indemnification for any material claims submitted under any of
its insurance policies. ABNJ DISCLOSURE SCHEDULE 4.10.3(b)
identifies all material policies of insurance maintained by ABNJ
and each ABNJ Subsidiary as well as the other matters required
to be disclosed under this Section.
4.11. Legal Proceedings.
Except as set forth in ABNJ DISCLOSURE SCHEDULE 4.11,
neither ABNJ nor any ABNJ Subsidiary is a party to any, and
there are no pending or, to ABNJ’s Knowledge, threatened
legal, administrative, arbitration or other proceedings, claims
(whether asserted or unasserted), actions or governmental
investigations or inquiries of any nature (i) against ABNJ
or any ABNJ Subsidiary, (ii) to which ABNJ or any ABNJ
Subsidiary’s assets are or may be subject,
(iii) challenging the validity or propriety of any of the
transactions contemplated by this Agreement, or (iv) which
could adversely affect the ability of ABNJ or American Bank to
perform under this Agreement, except for any proceeding, claim,
action, investigation or inquiry which, if adversely determined,
individually or in the aggregate, would not be reasonably
expected to have a Material Adverse Effect on ABNJ.
4.12. Compliance With Applicable Law.
4.12.1. To ABNJ’s Knowledge, each of ABNJ and each
ABNJ Subsidiary is in compliance in all material respects with
all applicable federal, state, local and foreign statutes, laws,
regulations, ordinances, rules,
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judgments, orders or decrees applicable to it, its properties,
assets and deposits, its business, and its conduct of business
and its relationship with its employees, including, without
limitation, the USA Patriot Act, the Equal Credit Opportunity
Act, the Fair Housing Act, the Community Reinvestment Act of
1977, the Home Mortgage Disclosure Act, and all other applicable
fair lending laws and other laws relating to discriminatory
business practices and neither ABNJ nor any ABNJ Subsidiary has
received any written notice to the contrary. The Board of
Directors of American Bank has adopted and American Bank has
implemented an anti-money laundering program that contains
adequate and appropriate customer identification verification
procedures that has not been deemed ineffective by any
Governmental Authority and that meets the requirements of
Sections 352 and 326 of the USA Patriot Act and the
regulations thereunder.
4.12.2. Each of ABNJ and each ABNJ Subsidiary has all
material permits, licenses, authorizations, orders and approvals
of, and has made all filings, applications and registrations
with, all Governmental Entities and Bank Regulators that are
required in order to permit it to own or lease its properties
and to conduct its business as presently conducted; all such
permits, licenses, certificates of authority, orders and
approvals are in full force and effect and, to the Knowledge of
ABNJ, no suspension or cancellation of any such permit, license,
certificate, order or approval is threatened or will result from
the consummation of the transactions contemplated by this
Agreement, subject to obtaining Regulatory Approvals.
4.12.3. For the period beginning January 1, 2003,
neither ABNJ nor any ABNJ Subsidiary has received any written
notification or, to ABNJ’s Knowledge, any other
communication from any Bank Regulator (i) asserting that
ABNJ or any ABNJ Subsidiary is not in material compliance with
any of the statutes, regulations or ordinances which such Bank
Regulator enforces; (ii) threatening to revoke any license,
franchise, permit or governmental authorization which is
material to ABNJ or any ABNJ Subsidiary; (iii) requiring,
or threatening to require, ABNJ or any ABNJ Subsidiary, or
indicating that ABNJ or any ABNJ Subsidiary may be required, to
enter into a cease and desist order, agreement or memorandum of
understanding or any other agreement with any federal or state
governmental agency or authority which is charged with the
supervision or regulation of banks or engages in the insurance
of bank deposits restricting or limiting, or purporting to
restrict or limit, in any material respect the operations of
ABNJ or any ABNJ Subsidiary, including without limitation any
restriction on the payment of dividends; or (iv) directing,
restricting or limiting, or purporting to direct, restrict or
limit, in any manner the operations of ABNJ or any ABNJ
Subsidiary, including without limitation any restriction on the
payment of dividends (any such notice, communication,
memorandum, agreement or order described in this sentence is
hereinafter referred to as a “ABNJ Regulatory
Agreement”). Neither ABNJ nor any ABNJ Subsidiary has
consented to or entered into any ABNJ Regulatory Agreement that
is currently in effect or that was in effect since
January 1, 2003. The most recent regulatory rating given to
American Bank as to compliance with the Community Reinvestment
Act (“CRA”) is satisfactory or better.
4.12.4. Since the enactment of the Xxxxxxxx-Xxxxx Act, ABNJ
has been and is in compliance in all material respects with
(i) the applicable provisions of the Xxxxxxxx-Xxxxx Act and
(ii) the applicable listing and corporate governance rules
and regulations of the Nasdaq. ABNJ DISCLOSURE
SCHEDULE 4.12.4 of sets forth, as of November 30,
2008, a schedule of all officers and directors of ABNJ who have
outstanding loans from ABNJ or American Bank, and there has been
no default on, or forgiveness or waiver of, in whole or in part,
any such loan during the two years immediately preceding the
date hereof.
4.13. Employee Benefit Plans.
4.13.1. ABNJ DISCLOSURE SCHEDULE 4.13.1 includes a
descriptive list and copy of all existing bonus, incentive,
deferred compensation, pension, retirement, profit-sharing,
thrift, savings, employee stock ownership, stock bonus, stock
purchase, restricted stock, stock option, stock appreciation,
phantom stock, severance, welfare benefit plans (including paid
time off policies and other benefit policies and procedures),
fringe benefit plans, employment, severance and change in
control agreements, split dollar life insurance and any
supplemental life insurance agreements
and/or
policies, and all other material benefit practices, policies and
arrangements maintained by ABNJ or any ABNJ Subsidiary in which
any employee or former employee, consultant or former consultant
or director or former director of ABNJ or any ABNJ Subsidiary
participates or to which any such employee, consultant or
director is a party or is otherwise entitled to receive benefits
(the
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“ABNJ Compensation and Benefit Plans”). Except as set
forth in ABNJ DISCLOSURE SCHEDULE 4.13.1, neither ABNJ nor
any of its Subsidiaries has any commitment to create any
additional ABNJ Compensation and Benefit Plan or to materially
modify, change or renew any existing ABNJ Compensation and
Benefit Plan (any modification or change that increases the cost
of such plans would be deemed material), except as required to
maintain the qualified status thereof.
4.13.2. To the Knowledge of ABNJ and except as disclosed in
ABNJ DISCLOSURE SCHEDULE 4.13.2, each ABNJ Compensation and
Benefit Plan has been operated and administered in all material
respects in accordance with its terms and with applicable law,
including, but not limited to, ERISA, the Code, the Securities
Act, the Exchange Act, the Age Discrimination in Employment
Act, COBRA, the Health Insurance Portability and Accountability
Act (“HIPAA”) and any regulations or rules promulgated
thereunder, and all material filings, disclosures and notices
required by ERISA, the Code, the Securities Act, the Exchange
Act, the Age Discrimination in Employment Act, COBRA and
HIPAA and any other applicable law have been timely made or any
interest, fines, penalties or other impositions for late filings
have been paid in full and each ABNJ Compensation and Benefit
Plan that is subject to Code Section 409A is in compliance
with Code Section 409A. Each ABNJ Compensation and Benefit
Plan which is an “employee pension benefit plan”
within the meaning of Section 3(2) of ERISA (a
“Pension Plan”) and which is intended to be qualified
under Section 401(a) of the Code has received a favorable
determination letter from the IRS, and ABNJ is not aware of any
circumstances which are reasonably likely to result in
revocation of any such favorable determination letter. There is
no material pending or, to the Knowledge of ABNJ, threatened
action, suit or claim relating to any of the ABNJ Compensation
and Benefit Plans (other than routine claims for benefits).
Neither ABNJ nor any ABNJ Subsidiary has engaged in a
transaction, or omitted to take any action, with respect to any
ABNJ Compensation and Benefit Plan that would reasonably be
expected to subject ABNJ or any ABNJ Subsidiary to an unpaid tax
or penalty imposed by either Section 4975 of the Code or
Section 502 of ERISA.
4.13.3. ABNJ does not maintain any defined benefit pension
plan. To the Knowledge of ABNJ, and except as set forth in ABNJ
DISCLOSURE SCHEDULE 4.13.3, there is no pending
investigation or enforcement action by any Governmental Entity
or Bank Regulator with respect to any ABNJ Compensation and
Benefit Plan, or any plan maintained by any entity which is
considered one employer with ABNJ under Section 4001(b)(1)
of ERISA or Code Section 414 (“ERISA
Affiliate”)(such plan being referred to as an “ERISA
Affiliate Plan”). Neither ABNJ, its Subsidiaries, nor any
ERISA Affiliate has contributed to any “multiemployer
plan,” as defined in Section 3(37) of ERISA.
4.13.4. Except as set forth in ABNJ DISCLOSURE
SCHEDULE 4.13.4, all material contributions required to be
made under the terms of any ABNJ Compensation and Benefit Plan
or ERISA Affiliate Plan or any employee benefit arrangements to
which ABNJ or any ABNJ Subsidiary is a party or a sponsor have
been timely made, and all anticipated contributions and funding
obligations are accrued on ABNJ’s consolidated financial
statements to the extent required by GAAP. ABNJ and its
Subsidiaries have expensed and accrued as a liability the
present value of future benefits under each applicable ABNJ
Compensation and Benefit Plan for financial reporting purposes
as required by GAAP.
4.13.5. Except as set forth in ABNJ DISCLOSURE
SCHEDULE 4.13.5(a), neither ABNJ nor any ABNJ Subsidiary
has any obligations to provide retiree health, life insurance,
disability insurance, or other retiree death benefits under any
ABNJ Compensation and Benefit Plan, other than benefits mandated
by COBRA or other applicable law to any employee or director.
Except as set forth in ABNJ DISCLOSURE SCHEDULE 4.13.5(b),
there has been no communication to employees by ABNJ or any ABNJ
Subsidiary that would reasonably be expected to promise or
guarantee such employees or directors retiree health, life
insurance, disability insurance, or other retiree death benefits.
4.13.6. Except as set forth in ABNJ DISCLOSURE
SCHEDULE 4.13.6, ABNJ and its Subsidiaries do not maintain
any ABNJ Compensation and Benefit Plans covering employees who
are not United States residents.
4.13.7. With respect to each ABNJ Compensation and Benefit
Plan, if applicable, ABNJ has provided or made available to
Investors copies of the: (A) plan documents, administrative
forms, any loan documents under an ABNJ employee stock ownership
plan, trust instruments and insurance contracts; (B) three
most
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recent Forms 5500 as filed; (C) three most recent
actuarial reports and financial statements; (D) most recent
summary plan description; (E) most recent determination
letter issued by the IRS; (F) any Form 5310 or
Form 5330 filed with the IRS within the last three years;
(G) most recent nondiscrimination tests performed under
ERISA and the Code (including 401(k) and 401(m) tests);
(H) ESOP allocation and suspense account records for the
past three years; and (I) copies of all equity grant
agreements.
4.13.8. Except as disclosed in ABNJ DISCLOSURE
SCHEDULE 4.13.8, the consummation of the Merger will not,
directly or indirectly (including, without limitation, as a
result of any termination of employment or service at any time
prior to or following the Effective Time) (A) entitle any
employee, consultant or director to any payment or benefit
(including severance pay, change in control benefit, or similar
compensation) or any increase in compensation, (B) result
in the vesting or acceleration of any benefits under any ABNJ
Compensation and Benefit Plan or (C) result in any material
increase in benefits payable under any ABNJ Compensation and
Benefit Plan.
4.13.9. Except as disclosed in ABNJ DISCLOSURE
SCHEDULE 4.13.9, neither ABNJ nor any ABNJ Subsidiary
maintains any compensation plans, programs or arrangements under
which any payment is reasonably likely to become non-deductible,
in whole or in part, for tax reporting purposes as a result of
the limitations under Section 162(m) of the Code and the
regulations issued thereunder.
4.13.10. To the Knowledge of ABNJ, the consummation of the
Merger and the Bank Merger will not, directly or indirectly
(including without limitation, as a result of any termination of
employment or service at any time prior to or following the
Effective Time), entitle any current or former employee,
director or independent contractor of ABNJ or any ABNJ
Subsidiary to any actual or deemed payment (or benefit) which
could constitute a “parachute payment” (as such term
is defined in Section 280G of the Code), except as set
forth in ABNJ DISCLOSURE SCHEDULE 4.13.10.
4.13.11. Except as disclosed in ABNJ DISCLOSURE
SCHEDULE 4.13.11, there are no stock options, stock
appreciation or similar rights, earned dividends or dividend
equivalents, or shares of restricted stock or restricted stock
units, outstanding under any of the ABNJ Compensation and
Benefit Plans or otherwise as of the date hereof and none will
be granted, awarded, or credited after the date hereof.
4.13.12. ABNJ DISCLOSURE SCHEDULE 4.13.12(a) sets
forth, as of the payroll date immediately preceding the date of
this Agreement, a list of the full names of all officers, and
employees whose annual rate of salary is $50,000 or greater, of
American Bank or ABNJ, their title and rate of salary, and their
date of hire. ABNJ DISCLOSURE SCHEDULE 4.13.12(b) also sets
forth any changes to any ABNJ Compensation and Benefit Plan
since December 31, 2007.
4.14. Brokers, Finders and Financial Advisors.
Neither ABNJ nor any ABNJ Subsidiary, nor any of their
respective officers, directors, employees or agents, has
employed any broker, finder or financial advisor in connection
with the transactions contemplated by this Agreement, or
incurred any liability or commitment for any fees or commissions
to any such person in connection with the transactions
contemplated by this Agreement except for the retention of
Xxxxx, Xxxxxxxx & Xxxxx, Inc. (“KBW”) by
ABNJ and the fee payable pursuant thereto. A true and correct
copy of the engagement agreement with KBW, setting forth the fee
payable to KBW for its services rendered to ABNJ in connection
with the Merger and transactions contemplated by this Agreement,
is attached to ABNJ DISCLOSURE SCHEDULE 4.14.
4.15. Environmental Matters.
4.15.1. Except as may be set forth in ABNJ DISCLOSURE
SCHEDULE 4.15 and any Phase I Environmental Report
identified therein, with respect to ABNJ and each ABNJ
Subsidiary:
(A) To ABNJ’s Knowledge, each of ABNJ and the ABNJ
Subsidiaries, the Participation Facilities, and, to ABNJ’s
Knowledge, the Loan Properties are, and have been, in
substantial compliance with, and are not liable under, any
Environmental Laws;
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(B) ABNJ has received no written notice that there is any
suit, claim, action, demand, executive or administrative order,
directive, investigation or proceeding pending and, to
ABNJ’s Knowledge, no such action is threatened, before any
court, governmental agency or other forum against it or any of
the ABNJ Subsidiaries or any Participation Facility (x) for
alleged noncompliance (including by any predecessor) with, or
liability under, any Environmental Law or (y) relating to
the presence of or release (as defined herein) into the
environment of any Materials of Environmental Concern (as
defined herein), whether or not occurring at or on a site owned,
leased or operated by it or any of the ABNJ Subsidiaries or any
Participation Facility;
(C) ABNJ has received no written notice that there is any
suit, claim, action, demand, executive or administrative order,
directive, investigation or proceeding pending and, to
ABNJ’s Knowledge no such action is threatened, before any
court, governmental agency or other forum relating to or against
any Loan Property (or ABNJ or any of the ABNJ Subsidiaries in
respect of such Loan Property) (x) relating to alleged
noncompliance (including by any predecessor) with, or liability
under, any Environmental Law or (y) relating to the
presence of or release into the environment of any Materials of
Environmental Concern, whether or not occurring at or on a site
owned, leased or operated by a Loan Property;
(D) To ABNJ’s Knowledge, the properties currently
owned or operated by ABNJ or any ABNJ Subsidiary (including,
without limitation, soil, groundwater or surface water on, or
under the properties, and buildings thereon) are not
contaminated with and do not otherwise contain any Materials of
Environmental Concern other than as permitted under applicable
Environmental Law;
(E) Neither ABNJ nor any ABNJ Subsidiary during the past
five years has received any written notice, demand letter,
executive or administrative order, directive or request for
information from any federal, state, local or foreign
governmental entity or any third party indicating that it may be
in violation of, or liable under, any Environmental Law;
(F) To ABNJ’s Knowledge, there are no underground
storage tanks on, in or under any properties owned or operated
by ABNJ or any of the ABNJ Subsidiaries or any Participation
Facility, and to ABNJ’s Knowledge, no underground storage
tanks have been closed or removed from any properties owned or
operated by ABNJ or any of the ABNJ Subsidiaries or any
Participation Facility; and
(G) To ABNJ’s Knowledge, during the period of
(s) ABNJ’s or any of the ABNJ Subsidiaries’
ownership or operation of any of their respective current
properties or (t) ABNJ’s or any of the ABNJ
Subsidiaries’ participation in the management of any
Participation Facility, there has been no contamination by or
release of Materials of Environmental Concerns in, on, under or
affecting such properties that could reasonably be expected to
result in material liability under the Environmental Laws. To
ABNJ’s Knowledge, prior to the period of
(x) ABNJ’s or any of the ABNJ Subsidiaries’
ownership or operation of any of their respective current
properties or (y) ABNJ’s or any of the ABNJ
Subsidiaries’ participation in the management of any
Participation Facility, there was no contamination by or release
of Materials of Environmental Concern in, on, under or affecting
such properties that could reasonably be expected to result in
material liability under the Environmental Laws.
4.15.2. “Loan Property” means any property in
which the applicable party (or a Subsidiary of it) holds a
security interest, and, where required by the context, includes
the owner or operator of such property, but only with respect to
such property. “Participation Facility” means any
facility in which the applicable party (or a Subsidiary of it)
participates in the management (including all property held as
trustee or in any other fiduciary capacity) and, where required
by the context, includes the owner or operator of such property,
but only with respect to such property.
4.16. Loan Portfolio.
4.16.1. The allowance for loan losses reflected in
ABNJ’s audited consolidated balance sheet at
September 30, 2008 was, and the allowance for loan losses
shown on the balance sheets in ABNJ’s Securities Documents
for periods ending after September 30, 2007 was or will be,
as the case may be, adequate, as of the dates thereof, under
GAAP.
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4.16.2. ABNJ DISCLOSURE SCHEDULE 4.16.2 sets forth a
listing, as of the most recently available date (and in no event
later than November 30, 2008), by account, of: (A) all
loans (including loan participations) of American Bank or any
other ABNJ Subsidiary that have been accelerated during the past
twelve months; (B) all loan commitments or lines of credit
of American Bank or any other ABNJ Subsidiary which have been
terminated by American Bank or any other ABNJ Subsidiary during
the past twelve months by reason of a default or adverse
developments in the condition of the borrower or other events or
circumstances affecting the credit of the borrower; (C) all
loans, lines of credit and loan commitments as to which American
Bank or any other ABNJ Subsidiary has given written notice of
its intent to terminate during the past twelve months;
(D) with respect to all commercial loans (including
commercial real estate loans), all notification letters and
other written communications from American Bank or any other
ABNJ Subsidiary to any of their respective borrowers, customers
or other parties during the past twelve months wherein American
Bank or any other ABNJ Subsidiary has requested or demanded that
actions be taken to correct existing defaults or facts or
circumstances which may become defaults; (E) each borrower,
customer or other party which has notified American Bank or any
other ABNJ Subsidiary during the past twelve months of, or has
asserted against American Bank or any other ABNJ Subsidiary, in
each case in writing, any “lender liability” or
similar claim, and, to the Knowledge of American Bank, each
borrower, customer or other party which has given American Bank
or any other ABNJ Subsidiary any oral notification of, or orally
asserted to or against American Bank or any other ABNJ
Subsidiary, any such claim; (F) all loans, (1) that
are contractually past due 90 days or more in the payment
of principal
and/or
interest, (2) that are on non-accrual status, (3) that
as of the date of this Agreement are classified as “Other
Loans Specially Mentioned”, “Special Mention”,
“Substandard”, “Doubtful”, “Loss”,
“Classified”, “Criticized”, “Watch
list” or words of similar import, together with the
principal amount of and accrued and unpaid interest on each such
Loan and the identity of the obligor thereunder, (4) where
a reasonable doubt exists as to the timely future collectability
of principal
and/or
interest, whether or not interest is still accruing or the loans
are less than 90 days past due, (5) where, during the
past three years, the interest rate terms have been reduced
and/or the
maturity dates have been extended subsequent to the agreement
under which the loan was originally created due to concerns
regarding the borrower’s ability to pay in accordance with
such initial terms, or (6) where a specific reserve
allocation exists in connection therewith, and (G) all
assets classified by American Bank or any American Bank
Subsidiary as real estate acquired through foreclosure or in
lieu of foreclosure, including in-substance foreclosures, and
all other assets currently held that were acquired through
foreclosure or in lieu of foreclosure. DISCLOSURE
SCHEDULE 4.16.2 may exclude any individual loan with a
principal outstanding balance of less than $50,000, provided
that DISCLOSURE SCHEDULE 4.16.2 includes, for each category
described, the aggregate amount of individual loans with a
principal outstanding balance of less than $50,000 that has been
excluded.
4.16.3. All loans receivable (including discounts) and
accrued interest entered on the books of ABNJ and the ABNJ
Subsidiaries arose out of bona fide arm’s-length
transactions, were made for good and valuable consideration in
the ordinary course of ABNJ’s or the appropriate ABNJ
Subsidiary’s respective business, and the notes or other
evidences of indebtedness with respect to such loans (including
discounts) are true and genuine and are what they purport to be,
except as set forth in ABNJ DISCLOSURE SCHEDULE 4.16.3. To
the Knowledge of ABNJ, the loans, discounts and the accrued
interest reflected on the books of ABNJ and the ABNJ
Subsidiaries are subject to no defenses, set-offs or
counterclaims (including, without limitation, those afforded by
usury or
truth-in-lending
laws), except as may be provided by bankruptcy, insolvency or
similar laws affecting creditors’ rights generally or by
general principles of equity. Except as set forth in ABNJ
DISCLOSURE SCHEDULE 4.16.3, all such loans are owned by
ABNJ or the appropriate ABNJ Subsidiary free and clear of any
liens.
4.16.4. The notes and other evidences of indebtedness
evidencing the loans described above, and all pledges,
mortgages, deeds of trust and other collateral documents or
security instruments relating thereto are, in all material
respects, valid, true and genuine, and what they purport to be.
4.17. Securities Documents.
ABNJ has made available to Investors copies of its
(i) annual reports on
Form 10-K
for the years ended September 30, 2007, 2006 and 2005 and
(ii) proxy materials used or for use in connection with its
meetings of
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shareholders held in 2008, 2007 and 2006. Such reports and proxy
materials complied, at the time filed with the SEC, in all
material respects, with the Securities Laws.
4.18. Related Party Transactions.
Except as described in ABNJ’s Proxy Statement distributed
in connection with the annual meeting of shareholders held in
February 2008 (which has previously been provided to Investors),
or as set forth in ABNJ DISCLOSURE SCHEDULE 4.18, neither
ABNJ nor any ABNJ Subsidiary is a party to any transaction
(including any loan or other credit accommodation) with any
Affiliate of ABNJ or any ABNJ Affiliate. All such transactions
(a) were made in the ordinary course of business,
(b) were made on substantially the same terms, including
interest rates and collateral, as those prevailing at the time
for comparable transactions with other Persons, and (c) did
not involve more than the normal risk of collectability or
present other unfavorable features. No loan or credit
accommodation to any Affiliate of ABNJ or any ABNJ Subsidiary is
presently in default or, during the three year period prior to
the date of this Agreement, has been in default or has been
restructured, modified or extended. Neither ABNJ nor any ABNJ
Subsidiary has been notified that principal and interest with
respect to any such loan or other credit accommodation will not
be paid when due or that the loan grade classification accorded
such loan or credit accommodation by ABNJ is inappropriate.
4.19. Deposits.
Except as set forth in ABNJ DISCLOSURE SCHEDULE 4.19, none
of the deposits of ABNJ or any ABNJ Subsidiary is a
“brokered deposit” as defined in 12 CFR
Section 337.6(a)(2).
4.20. Antitakeover Provisions Inapplicable;
Required Vote.
The affirmative vote of a majority of the votes cast by the
holders of ABNJ Common Stock is required to approve this
Agreement and the Merger under the NJBCA. The requirements of
the New Jersey Shareholders Protection Act do not apply to the
Merger and the Agreement.
4.21. Registration Obligations.
Neither ABNJ nor any ABNJ Subsidiary is under any obligation,
contingent or otherwise, which will survive the Effective Time
by reason of any agreement to register any transaction involving
any of its securities under the Securities Act.
4.22. Risk Management Instruments.
All material interest rate swaps, caps, floors, option
agreements, futures and forward contracts and other similar risk
management arrangements, whether entered into for ABNJ’s
own account, or for the account of one or more of ABNJ’s
Subsidiaries or their customers (all of which are set forth in
ABNJ DISCLOSURE SCHEDULE 4.22), were in all material
respects entered into in compliance with all applicable laws,
rules, regulations and regulatory policies, and to the Knowledge
of ABNJ, with counterparties believed to be financially
responsible at the time; and to ABNJ’s Knowledge each of
them constitutes the valid and legally binding obligation of
ABNJ 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 is in full force and effect. Neither ABNJ nor
any ABNJ Subsidiary, nor to the Knowledge of ABNJ any other
party thereto, is in breach of any of its obligations under any
such agreement or arrangement in any material respect.
4.23. Fairness Opinion.
ABNJ has received a written opinion from KBW to the effect that,
subject to the terms, conditions and qualifications set forth
therein, as of the date hereof, the Merger Consideration to be
received by the shareholders of ABNJ pursuant to this Agreement
is fair to such shareholders from a financial point of view.
Such opinion has not been amended or rescinded as of the date of
this Agreement.
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4.24. Intellectual Property
ABNJ and each ABNJ Subsidiary owns or, to ABNJ’s Knowledge,
possesses valid and binding licenses and other rights (subject
to expirations in accordance with their terms) to use all
patents, copyrights, trade secrets, trade names, servicemarks
and trademarks used in their business, each without payment
(except as set forth in ABNJ DISCLOSURE SCHEDULE 4.24), and
neither ABNJ nor any ABNJ Subsidiary has received any notice of
conflict with respect thereto that asserts the rights of others.
ABNJ and each ABNJ Subsidiary have performed all the obligations
required to be performed, and are not in default in any respect,
under any contract, agreement, arrangement or commitment
relating to any of the foregoing. To the Knowledge of ABNJ, the
conduct of the business of ABNJ and each ABNJ Subsidiary as
currently conducted or proposed to be conducted does not, in any
respect, infringe upon, dilute, misappropriate or otherwise
violate any intellectual property owned or controlled by any
third party.
4.25. Labor Matters
There are no labor or collective bargaining agreements to which
ABNJ or any ABNJ Subsidiary is a party. To the Knowledge of
ABNJ, there is no union organizing effort pending or threatened
against ABNJ or any ABNJ Subsidiary. There is no labor strike,
labor dispute (other than routine employee grievances that are
not related to union employees), work slowdown, stoppage or
lockout pending or, to the Knowledge of ABNJ, threatened against
ABNJ or any ABNJ Subsidiary. There is no unfair labor practice
or labor arbitration proceeding pending or, to the Knowledge of
ABNJ, threatened against ABNJ or any ABNJ Subsidiary (other than
routine employee grievances that are not related to union
employees). ABNJ and each ABNJ Subsidiary is in compliance in
all material respects with all applicable laws respecting
employment and employment practices, terms and conditions of
employment and wages and hours, and are not engaged in any
unfair labor practice.
4.26. ABNJ Information Supplied
The information relating to ABNJ and any ABNJ Subsidiary to be
contained in the Merger Registration Statement, or in any other
document filed with any Bank Regulator or other Governmental
Entity in connection herewith, will not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the
circumstances in which they are made, not misleading. The Merger
Registration Statement will comply with the provisions of the
Exchange Act and the rules and regulations thereunder and the
provisions of the Securities Act and the rules and regulations
thereunder, except that no representation or warranty is made by
ABNJ with respect to statements made or incorporated by
reference therein based on information supplied by Investors
specifically for inclusion or incorporation by reference in the
Merger Registration Statement.
ARTICLE V
REPRESENTATIONS
AND WARRANTIES OF INVESTORS
Investors represents and warrants to ABNJ that the statements
contained in this Article V are correct and complete as of
the date of this Agreement and will be correct and complete as
of the Closing Date (as though made then and as though the
Closing Date were substituted for the date of this Agreement
throughout this Article V), subject to the standard set
forth in Section 5.1, and except as set forth in the
Investors DISCLOSURE SCHEDULE delivered by Investors to ABNJ on
the date hereof, and except as to any representation or warranty
which specifically relates to an earlier date, which only need
be so correct as of such earlier date. Investors has made a good
faith effort to ensure that the disclosure on each schedule of
the Investors DISCLOSURE SCHEDULE corresponds to the section
referenced herein. However, for purposes of the Investors
DISCLOSURE SCHEDULE, any item disclosed on any schedule therein
is deemed to be fully disclosed with respect to all schedules
under which such item may be relevant as and to the extent that
it is reasonably clear on the face of such schedule that such
item applies to such other schedule. References to the Knowledge
of Investors shall include the Knowledge of Investors Savings
Bank.
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5.1. Standard.
No representation or warranty of Investors contained in this
Article V shall be deemed untrue or incorrect, and
Investors shall not 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 paragraph of
Article V, has had or is reasonably expected to have a
Material Adverse Effect, disregarding for these purposes
(x) any qualification or exception for, or reference to,
materiality in any such representation or warranty and
(y) any use of the terms “material”,
“materially”, “in all material respects”,
“Material Adverse Effect” or similar terms or phrases
in any such representation or warranty. The foregoing standard
shall not apply to representations and warranties contained in
Sections 5.2 (other than the last sentence of
Sections 5.2.1 and 5.2.2, 5.2.4 and 5.2.5), 5.3, 5.4, and
5.8 which shall be deemed untrue, incorrect and breached if they
are not true and correct in all material respects based on the
qualifications and standards therein contained.
5.2. Organization.
5.2.1. Investors is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware, and is duly registered as a bank holding company under
the BHCA. Investors has full corporate power and authority to
carry on its business as now conducted and is duly licensed or
qualified to do business in the states of the United States and
foreign jurisdictions where its ownership or leasing of property
or the conduct of its business requires such qualification.
5.2.2. Investors Savings Bank is a savings bank duly
organized, validly existing and in good standing (to the extent
required) under New Jersey law. The deposits of Investors
Savings Bank are insured by the FDIC to the fullest extent
permitted by law, and all premiums and assessments required to
be paid in connection therewith have been paid when due.
Investors Savings Bank is a member in good standing of the FHLB
and own the requisite amount of stock therein.
5.2.3. INVESTORS DISCLOSURE SCHEDULE 5.2.3 sets forth
each Investors Subsidiary. Each Investors Subsidiary is a
corporation or limited liability company duly organized, validly
existing and in good standing under the laws of its jurisdiction
of incorporation or organization.
5.2.4. The respective minute books of Investors and each
Investors Subsidiary accurately records, in all material
respects, all material corporate actions of their respective
shareholders and boards of directors (including committees).
5.2.5. Prior to the date of this Agreement, Investors has
made available to ABNJ true and correct copies of the
certificate of incorporation and bylaws of Investors and
Investors Savings Bank and the Investors Subsidiaries.
5.3. Capitalization.
5.3.1. The authorized capital stock of Investors consists
of 200,000,000 shares of common stock, $0.01 par
value, of which 108,927,929 shares are outstanding, validly
issued, fully paid and nonassessable and free of preemptive
rights, and 50,000,000 shares of preferred stock,
$0.01 par value (“Investors Preferred Stock”),
none of which are outstanding. There are 9,092,351 shares
of Investors Common Stock held by Investors as treasury stock.
Neither Investors nor any Investors Subsidiary has or is bound
by any Rights of any character relating to the purchase, sale or
issuance or voting of, or right to receive dividends or other
distributions on any shares of Investors Common Stock, or any
other security of Investors or any securities representing the
right to vote, purchase or otherwise receive any shares of
Investors Common Stock or any other security of Investors, other
than shares issuable under the Investors Stock Benefit Plans.
5.3.2. Investors owns all of the capital stock of Investors
Savings Bank free and clear of any lien or encumbrance.
5.4. Authority; No Violation.
5.4.1. Investors has full corporate power and authority to
execute and deliver this Agreement and, subject to receipt of
the Regulatory Approvals, to consummate the transactions
contemplated hereby. The execution
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and delivery of this Agreement by Investors and the completion
by Investors of the transactions contemplated hereby, including
the Merger, have been duly and validly approved by the Board of
Directors of Investors, and no other corporate proceedings on
the part of Investors are necessary to complete the transactions
contemplated hereby, including the Merger. This Agreement has
been duly and validly executed and delivered by Investors, and
subject to the receipt of the Regulatory Approvals and due and
valid execution and delivery of this Agreement by ABNJ,
constitutes the valid and binding obligations of Investors,
enforceable against Investors in accordance with its terms,
subject to applicable bankruptcy, insolvency and similar laws
affecting creditors’ rights generally, and subject, as to
enforceability, to general principles of equity.
5.4.2. Subject to receipt of Regulatory Approvals and
ABNJ’s and Investors’ compliance with any conditions
contained therein, (A) the execution and delivery of this
Agreement by Investors, (B) the consummation of the
transactions contemplated hereby, and (C) compliance by
Investors with any of the terms or provisions hereof will not
(i) conflict with or result in a breach of any provision of
the certificate of incorporation or bylaws of Investors or any
Investors Subsidiary; (ii) violate any statute, code,
ordinance, rule, regulation, judgment, order, writ, decree or
injunction applicable to Investors or any Investors Subsidiary
or any of their respective properties or assets; or
(iii) violate, conflict with, result in a breach of any
provisions of, constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default),
under, result in the termination of, accelerate the performance
required by, or result in a right of termination or acceleration
or the creation of any lien, security interest, charge or other
encumbrance upon any of the properties or assets of Investors or
any Investors Subsidiary under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, deed of
trust, license, lease, agreement or other investment or
obligation to which any of them is a party, or by which they or
any of their respective properties or assets may be bound or
affected, except for such violations, conflicts, breaches or
defaults under clause (ii) or (iii) hereof which,
either individually or in the aggregate, will not have a
Material Adverse Effect on Investors.
5.5. Consents.
Except for (a) filings with Bank Regulators, the receipt of
the Regulatory Approvals, compliance with any conditions
contained therein and the filing of Articles of Combination with
Bank Regulators, (b) the filing of the Certificate of
Merger with the Secretary of States of the States of Delaware
and New Jersey, (c) the filing with the SEC of (i) the
Merger Registration Statement and (ii) such reports under
Sections 13(a), 13(d), 13(g) and 16(a) of the Exchange Act
as may be required in connection with this Agreement and the
transactions contemplated hereby and the obtaining from the SEC
of such orders as may be required in connection therewith,
(d) approval of the listing of Investors Common Stock to be
issued in the Merger on the Nasdaq, (e) such filings and
approvals as are required to be made or obtained under the
securities or “Blue Sky” laws of various states in
connection with the issuance of the shares of Investors Common
Stock pursuant to this Agreement, and (f) the approval of
this Agreement by the requisite vote of the shareholders of
ABNJ, no consents, waivers or approvals of, or filings or
registrations with, any Governmental Entity are necessary, and,
to Investors’ Knowledge, no consents, waivers or approvals
of, or filings or registrations with, any other third parties
are necessary, in connection with (x) the execution and
delivery of this Agreement by Investors, and (y) the
completion of the Merger and the Bank Merger. Investors has no
reason to believe that (i) any Regulatory Approvals or
other required consents or approvals will not be received, or
that (ii) any public body or authority, the consent or
approval of which is not required or to which a filing is not
required, will object to the completion of the transactions
contemplated by this Agreement.
5.6. Financial Statements.
5.6.1. Investors has previously made available to ABNJ the
Investors Financial Statements. The Investors Financial
Statements have been prepared in accordance with GAAP, and
(including the related notes where applicable) fairly present in
each case in all material respects (subject in the case of the
unaudited interim statements to normal year-end adjustments) the
consolidated financial position, results of operations and cash
flows of Investors and the Investors Subsidiaries on a
consolidated basis as of and for the respective periods ending
on the dates thereof, in accordance with GAAP during the periods
involved, except as indicated in the notes thereto, or in the
case of unaudited statements, as permitted by
Form 10-Q.
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5.6.2. At the date of each balance sheet included in the
Investors Financial Statements, Investors did not have any
liabilities, obligations or loss contingencies of any nature
(whether absolute, accrued, contingent or otherwise) of a type
required to be reflected in such Investors Financial Statements
or in the footnotes thereto which are not fully reflected or
reserved against therein or fully disclosed in a footnote
thereto, except for liabilities, obligations and loss
contingencies which are not material individually or in the
aggregate or which are incurred in the ordinary course of
business, consistent with past practice, and except for
liabilities, obligations and loss contingencies which are within
the subject matter of a specific representation and warranty
herein and subject, in the case of any unaudited statements, to
normal, recurring audit adjustments and the absence of footnotes.
5.6.3. The records, systems, controls, data and information
of Investors and its Subsidiaries are recorded, stored,
maintained and operated under means (including any electronic,
mechanical or photographic process, whether computerized or not)
that are under the exclusive ownership and direct control of
Investors or its Subsidiaries or accountants (including all
means of access thereto and therefrom), except for any
non-exclusive ownership and non-direct control that would not
reasonably be expected to have a material adverse effect on the
system of internal accounting controls described below in this
Section 5.6.3. Investors (x) has implemented and
maintains a system of internal control over financial reporting
(as required by
Rule 13a-15(a)
of the Exchange Act) that is designed to provide reasonable
assurances regarding the reliability of financial reporting and
the preparation of its financial statements for external
purposes in accordance with GAAP, (y) has implemented and
maintains disclosure controls and procedures (as defined in
Rule 13a-15(e)
of the Exchange Act) to ensure that material information
relating to Investors, including its consolidated Subsidiaries,
is made known to the chief executive officer and the chief
financial officer of Investors by others within those entities,
and (z) has disclosed, based on its most recent evaluation
prior to the date hereof, to Investors’ outside auditors
and the audit committee of Investors’ Board of Directors
(i) any significant deficiencies and material weaknesses in
the design or operation of internal control over financial
reporting (as defined in
Rule 13a-15(f)
of the Exchange Act) which are reasonably likely to adversely
affect Investors’ ability to record, process, summarize and
report financial information and (ii) any fraud, whether or
not material, that involves management or other employees who
have a significant role in Investors’ internal control over
financial reporting. As of the date hereof, to the knowledge of
Investors, its chief executive officer and chief financial
officer will be able to give the certifications required
pursuant to the rules and regulations adopted pursuant to
Section 302 of the Xxxxxxxx-Xxxxx Act, without
qualification, when next due.
5.6.4. The allowance for credit losses reflected in
Investors’ audited statement of condition at June 30,
2008 was, and the allowance for credit losses shown on the
balance sheets in Investors’ Securities Documents for
periods ending after June 30, 2008 was or will be,
adequate, as of the dates thereof, under GAAP.
5.7. Taxes.
Investors and the Investors Subsidiaries that are at least
80 percent owned by Investors are members of the same
affiliated group within the meaning of Code
Section 1504(a). Investors has duly filed all federal,
state and material local tax returns required to be filed by or
with respect to Investors and each Investors Subsidiary on or
prior to the Closing Date, taking into account any extensions
(all such returns, to the Knowledge of Investors, being accurate
and correct in all material respects) and has duly paid or made
provisions for the payment of all material federal, state and
local taxes which have been incurred by or are due or claimed to
be due from Investors and any Investors Subsidiary by any taxing
authority or pursuant to any written tax sharing agreement on or
prior to the Closing Date other than taxes or other charges
which (i) are not delinquent, (ii) are being contested
in good faith, or (iii) have not yet been fully determined.
Investors and each of its Subsidiaries has withheld and paid all
taxes required to have been withheld and paid in connection with
amounts paid or owing to any employee, independent contractor,
creditor, shareholder or other third party, and Investors and
each of its Subsidiaries, to the Knowledge of Investors, has
timely complied with all applicable information reporting
requirements under Part III, Subchapter A of
Chapter 61 of the Code and similar applicable state and
local information reporting requirements.
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5.8. No Material Adverse Effect.
Investors has not suffered any Material Adverse Effect since
June 30, 2008 and no event has occurred or circumstance
arisen since that date which, in the aggregate, has had or is
reasonably likely to have a Material Adverse Effect on Investors.
5.9. Ownership of Property; Insurance Coverage.
5.9.1. Investors and each Investors Subsidiary has good
and, as to real property, marketable title to all material
assets and properties owned by Investors or each Investors
Subsidiary in the conduct of their businesses, whether such
assets and properties are real or personal, tangible or
intangible, including assets and property reflected in the
balance sheets contained in the Investors Financial Statements
or acquired subsequent thereto (except to the extent that such
assets and properties have been disposed of in the ordinary
course of business, since the date of such balance sheets),
subject to no material encumbrances, liens, mortgages, security
interests or pledges, except (i) those items which secure
liabilities for public or statutory obligations or any discount
with, borrowing from or other obligations to FHLB, inter-bank
credit facilities, or any transaction by a Investors Subsidiary
acting in a fiduciary capacity, (ii) statutory liens for
amounts not yet delinquent or which are being contested in good
faith, (iii) non-monetary liens affecting real property
which do not adversely affect the value or use of such real
property, and (iv) those described and reflected in the
Investors Financial Statements. Investors and the Investors
Subsidiaries, as lessee, have the right under valid and existing
leases of real and personal properties used by Investors and its
Subsidiaries in the conduct of their businesses to occupy or use
all such properties as presently occupied and used by each of
them. Investors and each Investors Subsidiary currently maintain
insurance considered by each of them to be reasonable for their
respective operations.
5.10. Legal Proceedings.
Except as disclosed in INVESTORS DISCLOSURE SCHEDULE 5.10,
neither Investors nor any Investors Subsidiary is a party to
any, and there are no pending or, to the Knowledge of Investors,
threatened legal, administrative, arbitration or other
proceedings, claims (whether asserted or unasserted), actions or
governmental investigations or inquiries of any nature
(i) against Investors or any Investors Subsidiary,
(ii) to which Investors or any Investors Subsidiary’s
assets are or may be subject, (iii) challenging the
validity or propriety of any of the transactions contemplated by
this Agreement, or (iv) which would reasonably be expected
to adversely affect the ability of Investors to perform under
this Agreement, except for any proceeding, claim, action,
investigation or inquiry which, if adversely determined,
individually or in the aggregate, would not be reasonably
expected to have a Material Adverse Effect.
5.11. Compliance With Applicable Law.
5.11.1. To the Knowledge of Investors, each of Investors
and each Investors Subsidiary is in compliance in all material
respects with all applicable federal, state, local and foreign
statutes, laws, regulations, ordinances, rules, judgments,
orders or decrees applicable to it, its properties, assets and
deposits, its business, and its conduct of business and its
relationship with its employees, including, without limitation,
the USA Patriot Act, the Equal Credit Opportunity Act, the Fair
Housing Act, the Community Reinvestment Act of 1977, the Home
Mortgage Disclosure Act, and all other applicable fair lending
laws and other laws relating to discriminatory business
practices, and neither Investors nor any Investors Subsidiary
has received any written notice to the contrary. The Board of
Directors of Investors Savings Bank has adopted and Investors
Savings Bank has implemented an anti-money laundering program
that contains adequate and appropriate customer identification
verification procedures that has not been deemed ineffective by
any Governmental Authority and that meets the requirements of
Sections 352 and 326 of the USA Patriot Act and the
regulations thereunder.
5.11.2. Each of Investors and each Investors Subsidiary has
all material permits, licenses, authorizations, orders and
approvals of, and has made all filings, applications and
registrations with, all Bank Regulators that are required in
order to permit it to own or lease its properties and to conduct
its business as presently conducted; all such permits, licenses,
certificates of authority, orders and approvals are in full
force and effect and, to the Knowledge of Investors, no
suspension or cancellation of any such permit, license,
certificate, order
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or approval is threatened or will result from the consummation
of the transactions contemplated by this Agreement, subject to
obtaining the Regulatory Approvals.
5.11.3. For the period beginning January 1, 2003,
neither Investors nor any Investors Subsidiary has received any
written notification or, to the Knowledge of Investors, any
other communication from any Bank Regulator (i) asserting
that Investors or any Investors Subsidiary is not in material
compliance with any of the statutes, regulations or ordinances
which such Bank Regulator enforces; (ii) threatening to
revoke any license, franchise, permit or governmental
authorization which is material to Investors or Investors
Savings Bank; (iii) requiring or threatening to require
Investors or any Investors Subsidiary, or indicating that
Investors or any Investors Subsidiary may be required, to enter
into a cease and desist order, agreement or memorandum of
understanding or any other agreement with any federal or state
governmental agency or authority which is charged with the
supervision or regulation of banks or engages in the insurance
of bank deposits restricting or limiting, or purporting to
restrict or limit, in any material respect the operations of
Investors or any Investors Subsidiary, including without
limitation any restriction on the payment of dividends; or
(iv) directing, restricting or limiting, or purporting to
direct, restrict or limit, in any manner the operations of
Investors or any Investors Subsidiary, including without
limitation any restriction on the payment of dividends (any such
notice, communication, memorandum, agreement or order described
in this sentence is hereinafter referred to as an
“Investors Regulatory Agreement”). Neither Investors
nor any Investors Subsidiary has consented to or entered into
any currently effective Investors Regulatory Agreement. The most
recent regulatory rating given to Investors Savings Bank as to
compliance with the CRA is satisfactory or better.
5.11.4. Since the enactment of the Xxxxxxxx-Xxxxx Act,
Investors has been and is in compliance in all material respects
with (i) the applicable provisions of the Xxxxxxxx-Xxxxx
Act and (ii) the applicable listing and corporate
governance rules and regulations of the Nasdaq.
5.12. Employee Benefit Plans.
5.12.1. INVESTORS DISCLOSURE SCHEDULE 5.12 includes a
list of all existing bonus, incentive, deferred compensation,
pension, retirement, profit-sharing, thrift, savings, employee
stock ownership, stock bonus, stock purchase, restricted stock,
stock option, stock appreciation, phantom stock, severance,
welfare benefit plans, fringe benefit plans, employment,
severance and change in control agreements and all other benefit
practices, policies and arrangements maintained by Investors or
any Investors Subsidiary and in which employees in general may
participate (the “Investors Compensation and Benefit
Plans”). Each Investors Compensation and Benefit Plan has
been administered in form and in operation, in all material
respects with its terms and all applicable requirements of law
and no notice has been issued by any Governmental Authority
questioning or challenging such compliance.
5.12.2. To the Knowledge of Investors and except as
disclosed in INVESTORS DISCLOSURE SCHEDULE 5.12.2, each
Investors Compensation and Benefit Plan has been operated and
administered in all material respects in accordance with its
terms and with applicable law, including, but not limited to,
ERISA, the Code, the Securities Act, the Exchange Act, the
Age Discrimination in Employment Act, COBRA, the Health
Insurance Portability and Accountability Act and any regulations
or rules promulgated thereunder, and all material filings,
disclosures and notices required by ERISA, the Code, the
Securities Act, the Exchange Act, the Age Discrimination in
Employment Act and any other applicable law have been timely
made or any interest, fines, penalties or other impositions for
late filings have been paid in full. Each Investors Compensation
and Benefit Plan which is a Pension Plan and which is intended
to be qualified under Section 401(a) of the Code has
received a favorable determination letter from the IRS, and
Investors is not aware of any circumstances which are reasonably
likely to result in revocation of any such favorable
determination letter. There is no material pending or, to the
Knowledge of Investors, threatened action, suit or claim
relating to any of the Investors Compensation and Benefit Plans
(other than routine claims for benefits). Neither Investors nor
any Investors Subsidiary has engaged in a transaction, or
omitted to take any action, with respect to any Investors
Compensation and Benefit Plan that would reasonably be expected
to subject Investors or any Investors Subsidiary to an unpaid
tax or penalty imposed by either Section 4975 of the Code
or Section 502 of ERISA.
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5.12.3. All material contributions required to be made
under the terms of any Investors Compensation and Benefit Plan
or ERISA Affiliate Plan or any employee benefit arrangements to
which Investors or any Investors Subsidiary is a party or a
sponsor have been timely made, and all anticipated contributions
and funding obligations are accrued on Investors’
consolidated financial statements to the extent required by
GAAP. Investors and its Subsidiaries have expensed and accrued
as a liability the present value of future benefits under each
applicable Investors Compensation and Benefit Plan for financial
reporting purposes as required by GAAP.
5.13. Environmental Matters.
5.13.1. To the Knowledge of Investors, neither the conduct
nor operation of its business nor any condition of any property
currently or previously owned or operated by it (including,
without limitation, in a fiduciary or agency capacity), or on
which it holds a lien, results or resulted in a violation of any
Environmental Laws that is reasonably likely to impose a
material liability (including a material remediation obligation)
upon Investors or any Investors Subsidiary. To the Knowledge of
Investors, no condition has existed or event has occurred with
respect to any of them or any such property that, with notice or
the passage of time, or both, is reasonably likely to result in
any material liability to Investors or any Investors Subsidiary
by reason of any Environmental Laws. Neither Investors nor any
Investors Subsidiary during the past five years has received any
written notice from any Person that Investors or any Investors
Subsidiary or the operation or condition of any property ever
owned, operated, or held as collateral or in a fiduciary
capacity by any of them are currently in violation of or
otherwise are alleged to have financial exposure under any
Environmental Laws or relating to Materials of Environmental
Concern (including, but not limited to, responsibility (or
potential responsibility) for the cleanup or other remediation
of any Materials of Environmental Concern at, on, beneath, or
originating from any such property) for which a material
liability is reasonably likely to be imposed upon Investors or
any Investors Subsidiary.
5.13.2. There is no suit, claim, action, demand, executive
or administrative order, directive, investigation or proceeding
pending or, to Investors’s Knowledge, threatened, before
any court, governmental agency or other forum against Investors
or any Investors Subsidiary (x) for alleged noncompliance
(including by any predecessor) with, or liability under, any
Environmental Law or (y) relating to the presence of or
release (defined herein) into the environment of any Materials
of Environmental Concern (as defined herein), whether or not
occurring at or on a site owned, leased or operated by Investors
or any Investors Subsidiary.
5.14. Securities Documents.
Investors has made available to ABNJ copies of its
(i) annual reports on
Form 10-K
for the years ended June 30, 2008, 2007 and 2006, and
(ii) proxy materials used or for use in connection with its
meetings of shareholders held in 2008, 2007 and 2006. Such
reports and such proxy materials complied, at the time filed
with the SEC, in all material respects, with the Securities Laws.
5.15. Investors Common Stock
The shares of Investors Common Stock to be issued pursuant to
this Agreement, when issued in accordance with the terms of this
Agreement, will be duly authorized, validly issued, fully paid
and non-assessable and subject to no preemptive rights.
5.16. Investors Information Supplied
The information relating to Investors and any Investors
Subsidiary to be contained in the Merger Registration Statement,
or in any other document filed with any Bank Regulator or other
Governmental Entity in connection herewith, will not contain any
untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in light of the
circumstances in which they are made, not misleading. The Merger
Registration Statement will comply with the provisions of the
Exchange Act and the rules and regulations thereunder and the
provisions of the Securities Act and the rules and regulations
thereunder, except that no representation or warranty is made by
Investors with respect to statements made or incorporated by
reference therein based on information supplied by ABNJ
specifically for inclusion or incorporation by reference in the
Merger Registration Statement.
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ARTICLE VI
COVENANTS
OF ABNJ
6.1. Conduct of Business.
6.1.1. Affirmative Covenants. During the
period from the date of this Agreement to the Effective Time,
except with the written consent of Investors, which consent will
not be unreasonably withheld, conditioned or delayed, ABNJ will,
and it will cause each ABNJ Subsidiary to: operate its business,
only in the usual, regular and ordinary course of business; use
reasonable efforts to preserve intact its business organization
and assets and maintain its rights and franchises; and
voluntarily take no action which would (i) adversely affect
the ability of the parties to obtain any Regulatory Approval or
other approvals of Governmental Entities required for the
transactions contemplated hereby or materially increase the
period of time necessary to obtain such approvals, or
(ii) adversely affect its ability to perform its covenants
and agreements under this Agreement.
6.1.2. Negative Covenants. ABNJ agrees
that from the date of this Agreement to the Effective Time,
except as otherwise specifically permitted or required by this
Agreement, set forth in ABNJ DISCLOSURE SCHEDULE 6.1.2, or
consented to by Investors in writing (which consent shall not be
unreasonably withheld or delayed), it will not, and it will
cause each ABNJ Subsidiary not to:
(A) change or waive any provision of its Certificate of
Incorporation, Charter or Bylaws, except as required by law, or
appoint a new director to the board directors;
(B) change the number of authorized or issued shares of its
capital stock, issue any shares of ABNJ Common Stock, including
any shares that are held as “treasury shares” as of
the date of this Agreement, or issue or grant any Right or
agreement of any character relating to its authorized or issued
capital stock or any securities convertible into shares of such
stock, make any grant or award under the ABNJ Equity Plans, or
split, combine or reclassify any shares of capital stock, or
declare, set aside or pay any dividend or other distribution in
respect of capital stock, or redeem or otherwise acquire any
shares of capital stock, except that (i) ABNJ may continue
to pay its regular quarterly cash dividend of $0.05 per share,
with payment and record dates consistent with past practice,
(ii) ABNJ may issue shares of ABNJ Common Stock upon the
valid exercise, in accordance with the information set forth in
ABNJ DISCLOSURE SCHEDULE 4.3.1, of presently outstanding
ABNJ Options issued under the ABNJ Equity Plans, and
(iii) any ABNJ Subsidiary may pay dividends to its parent
company (as permitted under applicable law or regulations)
consistent with past practice.
(C) enter into, amend in any material respect or terminate
any contract or agreement (including without limitation any
settlement agreement with respect to litigation) except in the
ordinary course of business;
(D) other than as set forth in ABNJ DISCLOSURE
SCHEDULE 6.1.2(D), make application for the opening or
closing of any, or open or close any, branch or automated
banking facility;
(E) grant or agree to pay any bonus, severance or
termination to, or enter into, renew or amend any employment
agreement, severance agreement
and/or
supplemental executive agreement with, or increase in any manner
the compensation or fringe benefits of, any of its directors,
officers or employees, except (i) as may be required
pursuant to commitments existing on the date hereof and set
forth on ABNJ DISCLOSURE SCHEDULES 4.9.1 and 4.13.1, and
(ii) pay increases in the ordinary course of business
consistent with past practice to non-officer employees. Neither
ABNJ nor any ABNJ Subsidiary shall hire or promote any employee
to a rank having a title of vice president or other more senior
rank or hire any new employee at an annual rate of compensation
in excess of $50,000, provided that ABNJ or an ABNJ Subsidiary
may hire at-will, non-officer employees to fill vacancies that
may from time to time arise in the ordinary course of business.
(F) enter into or, except as may be required by law,
materially modify any pension, retirement, stock option, stock
purchase, stock appreciation right, stock grant, savings, profit
sharing, deferred compensation, supplemental retirement,
consulting, bonus, group insurance or other employee benefit,
incentive or welfare contract, plan or arrangement, or any trust
agreement related thereto, in respect of any of its
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directors, officers or employees; or make any contributions to
any defined contribution plan not in the ordinary course of
business consistent with past practice;
(G) merge or consolidate ABNJ or any ABNJ Subsidiary with
any other corporation; sell or lease all or any substantial
portion of the assets or business of ABNJ or any ABNJ
Subsidiary; make any acquisition of all or any substantial
portion of the business or assets of any other person, firm,
association, corporation or business organization other than in
connection with foreclosures, settlements in lieu of
foreclosure, troubled loan or debt restructuring, or the
collection of any loan or credit arrangement between ABNJ, or
any ABNJ Subsidiary, and any other person; enter into a purchase
and assumption transaction with respect to deposits and
liabilities; permit the revocation or surrender by any ABNJ
Subsidiary of its certificate of authority to maintain, or file
an application for the relocation of, any existing branch
office, or file an application for a certificate of authority to
establish a new branch office;
(H) sell or otherwise dispose of the capital stock of ABNJ
or sell or otherwise dispose of any asset of ABNJ or of any ABNJ
Subsidiary other than in the ordinary course of business
consistent with past practice; except for transactions with the
FHLB, subject any asset of ABNJ or of any ABNJ Subsidiary to a
lien, pledge, security interest or other encumbrance (other than
in connection with deposits, repurchase agreements, bankers
acceptances, “treasury tax and loan” accounts
established in the ordinary course of business and transactions
in “federal funds” and the satisfaction of legal
requirements in the exercise of trust powers) other than in the
ordinary course of business consistent with past practice; incur
any indebtedness for borrowed money (or guarantee any
indebtedness for borrowed money), except in the ordinary course
of business consistent with past practice;
(I) voluntarily take any action which would result in any
of the representations and warranties of ABNJ or American Bank
set forth in this Agreement becoming untrue as of any date after
the date hereof or in any of the conditions set forth in
Article IX hereof not being satisfied, except in each case
as may be required by applicable law;
(J) change any method, practice or principle of accounting,
except as may be required from time to time by GAAP (without
regard to any optional early adoption date) or any Bank
Regulator responsible for regulating ABNJ or American Bank;
(K) waive, release, grant or transfer any material rights
of value or modify or change in any material respect any
existing material agreement or indebtedness to which ABNJ or any
ABNJ Subsidiary is a party, other than in the ordinary course of
business, consistent with past practice;
(L) purchase any securities (other than FHLB stock as
required by the FHLB); or purchase any securities other than
securities (i) issued by a federal government agency, and
(iii) with a weighted average life of not more than one
year;
(M) except for commitments issued prior to the date of this
Agreement which have not yet expired and which have been
disclosed on the ABNJ DISCLOSURE SCHEDULE 6.12(M), and the
renewal of existing lines of credit, make any new loan or other
credit facility commitment (including without limitation, lines
of credit and letters of credit) in an amount in excess of
$1.0 million for a commercial real estate loan or $250,000
for a commercial business loan, or $500,000 for a construction
loan, or in excess of $750,000 for a residential loan. In
addition, the prior approval of Investors is required with
respect to the foregoing: (i) any new loan or credit
facility commitment to any borrower or group of affiliated
borrowers whose credit exposure with American Bank, ABNJ or any
ABNJ Subsidiary, in the aggregate, exceeds $5.0 million
prior thereto or as a result thereof; and (ii) any new loan
or credit facility commitment in any property located, outside
of New Jersey.
(N) except as set forth on the ABNJ DISCLOSURE
SCHEDULE 6.12(N), enter into, renew, extend or modify any
other transaction (other than a deposit transaction) with any
Affiliate;
(O) enter into (or renew) any futures contract, option,
interest rate caps, interest rate floors, interest rate exchange
agreement or other agreement or take any other action for
purposes of hedging the
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exposure of its interest-earning assets and interest-bearing
liabilities to changes in market rates of interest; enter into
(or renew) any structured financing transaction;
(P) except for the execution of this Agreement, and actions
taken or which will be taken in accordance with this Agreement
and performance thereunder, take any action that would give rise
to a right of payment to any individual under any employment
agreement;
(Q) make any material change in policies in existence on
the date of this Agreement with regard to: the extension of
credit, or the establishment of reserves with respect to the
possible loss thereon or the charge off of losses incurred
thereon; investments; asset/liability management; or other
material banking policies except as may be required by changes
in applicable law or regulations or by a Bank Regulator;
(R) except for the execution of this Agreement, and the
transactions contemplated therein, take any action that would
give rise to an acceleration of the right to payment to any
individual under any ABNJ Employee Plan;
(S) except as set forth in ABNJ DISCLOSURE
SCHEDULE 6.12(S), make any capital expenditures in excess
of $25,000 individually or $75,000 in the aggregate, other than
pursuant to binding commitments existing on the date hereof and
other than expenditures necessary to maintain existing assets in
good repair;
(T) except as set forth in ABNJ DISCLOSURE
SCHEDULE 6.12(T), purchase or otherwise acquire, or sell or
otherwise dispose of, any assets or incur any liabilities other
than in the ordinary course of business consistent with past
practices and policies;
(U) sell any participation interest in any loan (other than
sales of loans secured by one- to four-family real estate that
are consistent with past practice) (and provided that Investors
Savings Bank will be given the first opportunity to purchase any
loan participation being sold) or OREO properties (other than
sales of OREO which generate a net book loss of not more than
$10,000 per property);
(V) undertake or enter into any lease, contract or other
commitment for its account, other than in the normal course of
providing credit to customers as part of its banking business,
involving a payment by ABNJ or American Bank of more than
$25,000 annually, or containing any financial commitment
extending beyond 12 months from the date hereof;
(W) pay, discharge, settle or compromise any claim, action,
litigation, arbitration or proceeding, other than any such
payment, discharge, settlement or compromise in the ordinary
course of business consistent with past practice that involves
solely money damages in the amount not in excess of $25,000
individually or $75,000 in the aggregate, and that does not
create negative precedent for other pending or potential claims,
actions, litigation, arbitration or proceedings;
(X) foreclose upon or take a deed or title to any
commercial real estate without first conducting a Phase I
environmental assessment of the property or foreclose upon any
commercial real estate if such environmental assessment
indicates the presence of a Materials of Environmental Concern;
(Y) purchase or sell any mortgage loan servicing rights
other than in the ordinary course of business consistent with
past practice;
(Z) borrow or otherwise enter into any agreement (including
but not limited to structured borrowings or any indebtedness the
maturity date of which is in excess of 12 months) to
increase the indebtedness of ABNJ or any of its subsidiaries
except for liquidity and operational purposes;
(AA) issue any broadly distributed communication of a
general nature to employees (including general communications
relating to benefits and compensation) without prior
consultation with Investors and, to the extent relating to
post-Closing employment, benefit or compensation information
without the prior consent of Investors (which shall not be
unreasonably withheld) or issue any broadly distributed
communication of a general nature to customers without the prior
approval of Investors (which shall not be unreasonably
withheld), except as required by law or for communications in
the ordinary course of
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business consistent with past practice that do not relate to the
Merger or other transactions contemplated hereby; or
(BB) agree to do any of the foregoing.
6.2. Current Information.
6.2.1. During the period from the date of this Agreement to
the Effective Time, ABNJ will cause one or more of its
representatives to confer with representatives of Investors and
report the general status of its ongoing operations at such
times as Investors may reasonably request. ABNJ will promptly
notify Investors of any material change in the normal course of
its business or in the operation of its properties and, to the
extent permitted by applicable law, of any governmental
complaints, investigations or hearings (or communications
indicating that the same may be contemplated), or the
institution or the threat of material litigation involving ABNJ
or any ABNJ Subsidiary. Without limiting the foregoing, senior
officers of Investors and ABNJ shall meet on a reasonably
regular basis (expected to be at least monthly) to review the
financial and operational affairs of ABNJ and its Subsidiaries,
in accordance with applicable law, and ABNJ shall give due
consideration to Investors’ input on such matters, with the
understanding that, notwithstanding any other provision
contained in this Agreement, neither Investors nor any Investors
Subsidiary shall under any circumstance be permitted to exercise
control of ABNJ or any ABNJ Subsidiary prior to the Effective
Time.
6.2.2. American Bank and Investors Savings Bank shall meet
on a regular basis to discuss and plan for the conversion of
American Bank’s data processing and related electronic
informational systems to those used by Investors Savings Bank,
which planning shall include, but not be limited to, discussion
of the possible termination by American Bank of third-party
service provider arrangements effective at the Effective Time or
at a date thereafter, non-renewal of personal property leases
and software licenses used by American Bank in connection with
its systems operations, retention of outside consultants and
additional employees to assist with the conversion, and
outsourcing, as appropriate, of proprietary or self-provided
system services, it being understood that American Bank shall
not be obligated to take any such action prior to the Effective
Time and, unless American Bank otherwise agrees, no conversion
shall take place prior to the Effective Time. In the event that
American Bank takes, at the request of Investors Savings Bank,
any action relative to third parties to facilitate the
conversion that results in the imposition of any termination
fees or charges, Investors Savings Bank shall indemnify American
Bank for any such fees and charges, and the costs of reversing
the conversion process, if for any reason the Merger is not
consummated for any reason other than a breach of this Agreement
by ABNJ, or a termination of this Agreement under
Section 11.1.8 or 11.1.9.
6.2.3. American Bank shall provide Investors Savings Bank,
within fifteen (15) business days of the end of each
calendar month, a written list of nonperforming assets (the term
“nonperforming assets,” for purposes of this
subsection, means (i) loans that are “troubled debt
restructuring” as defined in Statement of Financial
Accounting Standards No. 15, “Accounting by Debtors
and Creditors for Troubled Debt Restructuring,”
(ii) loans on nonaccrual, (iii) real estate owned,
(iv) all loans ninety (90) days or more past due) as
of the end of such month and (iv) and impaired loans. On a
monthly basis, ABNJ shall provide Investors Savings Bank with a
schedule of all loan approvals, which schedule shall indicate
the loan amount, loan type and other material features of the
loan.
6.2.4. ABNJ shall promptly inform Investors upon receiving
notice of any legal, administrative, arbitration or other
proceedings, demands, notices, audits or investigations (by any
federal, state or local commission, agency or board) relating to
the alleged liability of ABNJ or any ABNJ Subsidiary under any
labor or employment law.
6.3. Access to Properties and Records.
Subject to Section 12.1 hereof, ABNJ shall permit Investors
reasonable access upon reasonable notice to its properties and
those of the ABNJ Subsidiaries, and shall disclose and make
available to Investors during normal business hours all of its
books, papers and records relating to the assets, properties,
operations, obligations and liabilities, including, but not
limited to, all books of account (including the general ledger),
tax records, minute books of directors’ (other than minutes
that discuss any of the transactions contemplated by this
Agreement or any other subject matter ABNJ reasonably determines
should be treated as confidential) and
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shareholders’ meetings, organizational documents, Bylaws,
material contracts and agreements, filings with any regulatory
authority, litigation files, plans affecting employees, and any
other business activities or prospects in which Investors may
have a reasonable interest; provided, however, that ABNJ shall
not be required to take any action that would provide access to
or to disclose information where such access or disclosure would
violate or prejudice the rights or business interests or
confidences of any customer or other person or would result in
the waiver by it of the privilege protecting communications
between it and any of its counsel. ABNJ shall provide and shall
request its auditors to provide Investors with such historical
financial information regarding it (and related audit reports
and consents) as Investors may reasonably request for securities
disclosure purposes. Investors shall use commercially reasonable
efforts to minimize any interference with ABNJ’s regular
business operations during any such access to ABNJ’s
property, books and records. ABNJ and each ABNJ Subsidiary shall
permit Investors, at its expense, to cause a “phase I
environmental audit” and a “phase II
environmental audit” to be performed at any physical
location owned or occupied by ABNJ or any ABNJ Subsidiary. In
the event any subsurface or phase II site assessments are
conducted, Investors shall indemnify ABNJ and its Subsidiaries
for all costs and expenses associated with returning the
property to its previous condition.
6.4. Financial and Other Statements.
6.4.1. Promptly upon receipt thereof, ABNJ will furnish to
Investors copies of each annual, interim or special audit of the
books of ABNJ and the ABNJ Subsidiaries made by its independent
auditors and copies of all internal control reports submitted to
ABNJ by such auditors in connection with each annual, interim or
special audit of the books of ABNJ and the ABNJ Subsidiaries
made by such auditors.
6.4.2. As soon as reasonably available, but in no event
later than the date such documents are filed with the SEC, ABNJ
will make available to Investors the Securities Documents filed
by it with the SEC under the Securities Laws. ABNJ will furnish
to Investors copies of all documents, statements and reports as
it or any ABNJ Subsidiary shall send to its shareholders, the
FDIC, the FRB, the Department or any other regulatory authority,
except as legally prohibited thereby. Within 25 days after
the end of each month, American Bank will deliver to Investors a
consolidated balance sheet and a consolidated statement of
income, without related notes, for such month prepared in
accordance with current financial reporting practices.
6.4.3. ABNJ will advise Investors promptly of the receipt
of any examination report of any Bank Regulator with respect to
the condition or activities of ABNJ or any of the ABNJ
Subsidiaries.
6.4.4. With reasonable promptness, ABNJ will furnish to
Investors such additional financial data that ABNJ possesses and
as Investors may reasonably request, including without
limitation, detailed monthly financial statements and loan
reports.
6.5. Maintenance of Insurance.
ABNJ shall maintain, and cause each ABNJ Subsidiary to maintain,
insurance in such amounts as are reasonable to cover such risks
as are customary in relation to the character and location of
theirs properties and the nature of their business.
6.6. Disclosure Supplements.
From time to time prior to the Effective Time, ABNJ will
promptly supplement or amend the ABNJ DISCLOSURE SCHEDULE
delivered in connection herewith with respect to any matter
hereafter arising which, if existing, occurring or known at the
date of this Agreement, would have been required to be set forth
or described in such ABNJ DISCLOSURE SCHEDULE or which is
necessary to correct any information in such ABNJ DISCLOSURE
SCHEDULE which has been rendered materially inaccurate thereby.
No supplement or amendment to such ABNJ DISCLOSURE SCHEDULE
shall have any effect for the purpose of determining
satisfaction of the conditions set forth in Article IX.
6.7. Consents and Approvals of Third Parties.
ABNJ shall use all commercially reasonable efforts to obtain as
soon as practicable all consents and approvals necessary or
desirable for the consummation of the transactions contemplated
by this Agreement.
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6.8. All Reasonable Efforts.
Subject to the terms and conditions herein provided, ABNJ agrees
to use all commercially reasonable efforts to take, or cause to
be taken, all action and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions
contemplated by this Agreement.
6.9. Failure to Fulfill Conditions.
In the event that ABNJ determines that a condition to its
obligation to complete the Merger cannot be fulfilled and that
it will not waive that condition, it will promptly notify
Investors.
6.10. No Solicitation.
(a) ABNJ shall not, and shall cause its Subsidiaries and
the respective officers, directors, employees, investment
bankers, financial advisors, attorneys, accountants,
consultants, affiliates and other agents (collectively, the
“Representatives”) not to, directly or indirectly,
(i) initiate, solicit, induce or knowingly encourage, or
take any action to facilitate the making of, any inquiry, offer
or proposal which constitutes, or could reasonably be expected
to lead to, an Acquisition Proposal; (ii) participate in
any discussions or negotiations regarding any Acquisition
Proposal or furnish, or otherwise afford access, to any Person
(other than Investors) any information or data with respect to
ABNJ or any of its Subsidiaries or otherwise relating to an
Acquisition Proposal; (iii) release any Person from, waive
any provisions of, or fail to enforce any confidentiality
agreement or standstill agreement to which ABNJ is a party; or
(iv) enter into any agreement, agreement in principle or
letter of intent with respect to any Acquisition Proposal or
approve or resolve to approve any Acquisition Proposal or any
agreement, agreement in principle or letter of intent relating
to an Acquisition Proposal. Any violation of the foregoing
restrictions by ABNJ or any Representative, whether or not such
Representative is so authorized and whether or not such
Representative is purporting to act on behalf of ABNJ or
otherwise, shall be deemed to be a breach of this Agreement by
ABNJ. ABNJ and its Subsidiaries shall, and shall cause each of
ABNJ Representative to, immediately cease and cause to be
terminated any and all existing discussions, negotiations, and
communications with any Persons with respect to any existing or
potential Acquisition Proposal.
For purposes of this Agreement, “Acquisition Proposal”
shall mean any inquiry, offer or proposal (other than an
inquiry, offer or proposal from Investors), whether or not in
writing, contemplating, relating to, or that could reasonably be
expected to lead to, an Acquisition Transaction. For purposes of
this Agreement, “Acquisition Transaction” shall mean
(A) any transaction or series of transactions involving any
merger, consolidation, recapitalization, share exchange,
liquidation, dissolution or similar transaction involving ABNJ
or any of its Subsidiaries; (B) any transaction pursuant to
which any third party or group acquires or would acquire
(whether through sale, lease or other disposition), directly or
indirectly, any assets of ABNJ or any of its Subsidiaries
representing, in the aggregate, fifteen percent (15%) or more of
the assets of ABNJ and its Subsidiaries on a consolidated basis;
(C) any issuance, sale or other disposition of (including
by way of merger, consolidation, share exchange or any similar
transaction) securities (or options, rights or warrants to
purchase or securities convertible into, such securities)
representing fifteen percent (15%) or more of the votes attached
to the outstanding securities of ABNJ or any of its
Subsidiaries; (D) any tender offer or exchange offer that,
if consummated, would result in any third party or group
beneficially owning fifteen percent (15%) or more of any class
of equity securities of ABNJ or any of its Subsidiaries; or
(E) any transaction which is similar in form, substance or
purpose to any of the foregoing transactions, or any combination
of the foregoing.
(b) Notwithstanding Section 6.10(a), ABNJ may take any
of the actions described in clause (ii) of
Section 6.10(a) if, but only if, (i) ABNJ has received
a bona fide unsolicited written Acquisition Proposal that did
not result from a breach of this Section 6.10;
(ii) ABNJ Board determines in good faith, after
consultation with and having considered the advice of its
outside legal counsel and its independent financial advisor,
that (A) such Acquisition Proposal constitutes or is
reasonably likely to lead to a Superior Proposal and
(B) the failure to take such actions would be inconsistent
with its fiduciary duties to ABNJ’s shareholders under
applicable law; (iii) ABNJ has provided Investors with at
least two (2) Business Days’ prior notice of such
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determination; and (iv) prior to furnishing or affording
access to any information or data with respect to ABNJ or any of
its Subsidiaries or otherwise relating to an Acquisition
Proposal, ABNJ receives from such Person a confidentiality
agreement with terms no less favorable to ABNJ than those
contained in the Confidentiality Agreement. ABNJ shall promptly
provide to Investors any non-public information regarding ABNJ
or its Subsidiaries provided to any other Person that was not
previously provided to Investors, such additional information to
be provided no later than the date of provision of such
information to such other party.
For purposes of this Agreement, “Superior Proposal”
shall mean any bona fide written proposal (on its most recently
amended or modified terms, if amended or modified) made by a
third party to enter into an Acquisition Transaction on terms
that ABNJ Board determines in its good faith judgment, after
consultation with and having considered the advice of outside
legal counsel and a financial advisor (i) would, if
consummated, result in the acquisition of all, but not less than
all, of the issued and outstanding shares of ABNJ Common Stock
or all, or substantially all, of the assets of ABNJ and its
Subsidiaries on a consolidated basis; (ii) would result in
a transaction that (A) involves consideration to the
holders of the shares of ABNJ Common Stock that is more
favorable, from a financial point of view, than the
consideration to be paid to ABNJ’s shareholders pursuant to
this Agreement, considering, among other things, the nature of
the consideration being offered and any material regulatory
approvals or other risks associated with the timing of the
proposed transaction beyond or in addition to those specifically
contemplated hereby, and which proposal is not conditioned upon
obtaining additional financing and (B) is, in light of the
other terms of such proposal, more favorable to ABNJ’s
shareholders than the Merger and the transactions contemplated
by this Agreement; and (iii) is reasonably likely to be
completed on the terms proposed, in each case taking into
account all legal, financial, regulatory and other aspects of
the proposal.
(c) ABNJ shall promptly (and in any event within
twenty-four (24) hours) notify Investors in writing if any
proposals or offers are received by, any information is
requested from, or any negotiations or discussions are sought to
be initiated or continued with, ABNJ or any ABNJ
Representatives, in each case in connection with any Acquisition
Proposal, and such notice shall indicate the name of the Person
initiating such discussions or negotiations or making such
proposal, offer or information request and the material terms
and conditions of any proposals or offers (and, in the case of
written materials relating to such proposal, offer, information
request, negotiations or discussion, providing copies of such
materials (including
e-mails or
other electronic communications) unless (i) such materials
constitute confidential information of the party making such
offer or proposal under an effective confidentiality agreement,
(ii) disclosure of such materials jeopardizes the
attorney-client privilege or (iii) disclosure of such
materials contravenes any law, rule, regulation, order, judgment
or decree. ABNJ agrees that it shall keep Investors informed, on
a current basis, of the status and terms of any such proposal,
offer, information request, negotiations or discussions
(including any amendments or modifications to such proposal,
offer or request).
(d) Neither the ABNJ Board nor any committee thereof shall
(i) withdraw, qualify or modify, or propose to withdraw,
qualify or modify, in a manner adverse to Investors in
connection with the transactions contemplated by this Agreement
(including the Merger), the ABNJ Recommendation (as defined in
Section 8.1), or make any statement, filing or release, in
connection with ABNJ Shareholders Meeting or otherwise,
inconsistent with the ABNJ Recommendation (it being understood
that taking a neutral position or no position with respect to an
Acquisition Proposal shall be considered an adverse modification
of the ABNJ Recommendation); (ii) approve or recommend, or
propose to approve or recommend, any Acquisition Proposal; or
(iii) enter into (or cause ABNJ or any of its Subsidiaries
to enter into) any letter of intent, agreement in principle,
acquisition agreement or other agreement (A) related to any
Acquisition Transaction (other than a confidentiality agreement
entered into in accordance with the provisions of
Section 6.10(b)) or (B) requiring ABNJ to abandon,
terminate or fail to consummate the Merger or any other
transaction contemplated by this Agreement.
(e) Notwithstanding Section 6.10(d), prior to the date
of ABNJ Shareholders Meeting, the ABNJ Board may approve or
recommend to the shareholders of ABNJ a Superior Proposal and
withdraw, qualify or modify ABNJ Recommendation in connection
therewith (a “ABNJ Subsequent Determination”) after
the fourth (4th) Business Day following Investors’ receipt
of a notice (the “Notice of Superior Proposal”) from
ABNJ advising Investors that the ABNJ Board has decided that a
bona fide unsolicited written Acquisition Proposal that it
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received (that did not result from a breach of this
Section 6.10) constitutes a Superior Proposal (it being
understood that ABNJ shall be required to deliver a new Notice
of Superior Proposal in respect of any revised Superior Proposal
from such third party or its affiliates that ABNJ proposes to
accept) if, but only if, (i) the ABNJ Board has reasonably
determined in good faith, after consultation with and having
considered the advice of outside legal counsel and a financial
advisor, that it is required to take such actions to comply with
its fiduciary duties to ABNJ’s shareholders under
applicable law, (ii) during the four (4) Business Day
Period after receipt of the Notice of Superior Proposal by
Investors, ABNJ and the ABNJ Board shall have cooperated and
negotiated in good faith with Investors to make such
adjustments, modifications or amendments to the terms and
conditions of this Agreement as would enable ABNJ to proceed
with the ABNJ Recommendation without a ABNJ Subsequent
Determination; provided, however, that Investors shall
not have any obligation to propose any adjustments,
modifications or amendments to the terms and conditions of this
Agreement and (iii) at the end of such four
(4) Business Day period, after taking into account any such
adjusted, modified or amended terms as may have been proposed by
Investors since its receipt of such Notice of Superior Proposal,
ABNJ Board has again in good faith made the determination
(A) in clause (i) of this Section 6.10(e) and
(B) that such Acquisition Proposal constitutes a Superior
Proposal. Notwithstanding the foregoing, the changing,
qualifying or modifying of the ABNJ Recommendation or the making
of a ABNJ Subsequent Determination by the ABNJ Board shall not
change the approval of the ABNJ Board for purposes of causing
any Takeover Laws to be inapplicable to this Agreement and the
Voting Agreements and the transactions contemplated hereby and
thereby, including the Merger.
(f) Nothing contained in this Section 6.10 shall
prohibit ABNJ or the ABNJ Board from complying with ABNJ’s
obligations required under
Rules 14d-9
and 14e-2(a)
promulgated under the Exchange Act; provided, however,
that any such disclosure relating to an Acquisition Proposal
shall be deemed a change in ABNJ Recommendation unless ABNJ
Board reaffirms ABNJ Recommendation in such disclosure.
6.11. Reserves and Merger-Related Costs.
ABNJ agrees to consult with Investors with respect to its loan,
litigation and real estate valuation policies and practices
(including loan classifications and levels of reserves).
Investors and ABNJ shall also consult with respect to the
character, amount and timing of restructuring charges to be
taken by each of them in connection with the transactions
contemplated hereby and shall take such charges as Investors
shall reasonably request and which are not inconsistent with
GAAP, provided that no such actions need be effected until
Investors shall have irrevocably certified to ABNJ that all
conditions set forth in Article IX to the obligation of
Investors to consummate the transactions contemplated hereby
(other than the delivery of certificates or opinions) have been
satisfied or, where legally permissible, waived.
6.12. Board of Directors and Committee
Meetings.
ABNJ and American Bank shall permit representatives of Investors
to attend any meeting of the Board of Directors of ABNJ
and/or
American Bank or the Executive and Loan Committees thereof as an
observer (the “Observer”), provided that neither ABNJ
nor American Bank shall be required to permit the Investors
representative to remain present during any confidential
discussion of this Agreement and the transactions contemplated
hereby or any third party proposal to acquire control of ABNJ or
American Bank or during any other matter that the respective
Board of Directors has reasonably determined to be confidential
with respect to Investors’ participation.
ARTICLE VII
COVENANTS
OF INVESTORS
7.1. Conduct of Business.
During the period from the date of this Agreement to the
Effective Time, except with the written consent of ABNJ, which
consent will not be unreasonably withheld, Investors will, and
it will cause each Investors Subsidiary to use reasonable
efforts to preserve intact its business organization and assets
and maintain its rights and franchises; and voluntarily take no
action that would: (i) adversely affect the ability of the
parties to
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obtain the Regulatory Approvals or materially increase the
period of time necessary to obtain such approvals;
(ii) adversely affect its ability to perform its covenants
and agreements under this Agreement; or (iii) result in the
representations and warranties contained in Article V of
this Agreement not being true and correct on the date of this
Agreement or at any future date on or prior to the Closing Date
or in any of the conditions set forth in Article IX hereof
not being satisfied.
7.2. Current Information.
During the period from the date of this Agreement to the
Effective Time, Investors will cause one or more of its
representatives to confer with representatives of ABNJ and
report the general status of its financial condition, operations
and business and matters relating to the completion of the
transactions contemplated hereby, at such times as ABNJ may
reasonably request. Investors will promptly notify ABNJ, to the
extent permitted by applicable law, of any governmental
complaints, investigations or hearings (or communications
indicating that the same may be contemplated), or the
institution of material litigation involving Investors and any
Investors Subsidiary. Investors shall be reasonably responsive
to requests by ABNJ for access to such information and personnel
regarding Investors and its Subsidiaries as may be reasonably
necessary for ABNJ to confirm that the representations and
warranties of Investors contained herein are true and correct
and that the covenants of Investors contained herein have been
performed in all material respects; provided, however, that
Investors shall not be required to take any action that would
provide access to or to disclose information where such access
or disclosure, in Investors’ reasonable judgment, would
interfere with the normal conduct of Investors’ business or
would violate or prejudice the rights or business interests or
confidences of any customer or other person or would result in
the waiver by it of the privilege protecting communications
between it and any of its counsel.
7.3. Financial and Other Statements.
Investors will make available to ABNJ the Securities Documents
filed by it with the SEC under the Securities Laws. Investors
will furnish to ABNJ copies of all documents, statements and
reports as it or Investors Savings Bank file with the FDIC or
any other Bank Regulator with respect to the Merger. Investors
will furnish to ABNJ copies of all documents, statements and
reports as it or any Investors Subsidiary sends to the
shareholders of Investors.
7.4. Disclosure Supplements.
From time to time prior to the Effective Time, Investors will
promptly supplement or amend the Investors DISCLOSURE SCHEDULE
delivered in connection herewith with respect to any material
matter hereafter arising which, if existing, occurring or known
at the date of this Agreement, would have been required to be
set forth or described in such Investors DISCLOSURE SCHEDULE or
which is necessary to correct any information in such Investors
DISCLOSURE SCHEDULE which has been rendered inaccurate thereby.
No supplement or amendment to such Investors DISCLOSURE SCHEDULE
shall have any effect for the purpose of determining
satisfaction of the conditions set forth in Article IX.
7.5. Consents and Approvals of Third Parties.
Investors shall use all commercially reasonable efforts to
obtain as soon as practicable all consents and approvals
necessary or desirable for the consummation of the transactions
contemplated by this Agreement.
7.6. All Reasonable Efforts.
Subject to the terms and conditions herein provided, Investors
agrees to use all commercially reasonable efforts to take, or
cause to be taken, all action and to do, or cause to be done,
all things necessary, proper or advisable under applicable laws
and regulations to consummate and make effective the
transactions contemplated by this Agreement.
7.7. Failure to Fulfill Conditions.
In the event that Investors determines that a condition to its
obligation to complete the Merger cannot be fulfilled and that
it will not waive that condition, it will promptly notify ABNJ.
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7.8. Employee Benefits.
7.8.1. Investors will review all ABNJ Compensation and
Benefit Plans to determine, subject to Section 7.8.3,
whether to maintain, terminate or continue such plans. In the
event employee compensation
and/or
benefits as currently provided by ABNJ or any ABNJ Subsidiary
are changed or terminated by Investors, in whole or in part,
Investors shall provide Continuing Employees (as defined below)
with compensation and benefits that are, in the aggregate,
substantially similar to the compensation and benefits provided
to similarly situated employees of Investors or applicable
Investors Subsidiary (as of the date any such compensation or
benefit is provided). Employees of ABNJ or any ABNJ Subsidiary
who become participants in an Investors Compensation and Benefit
Plan shall, for purposes of determining eligibility for and for
any applicable vesting periods of such employee benefits only
(and not for benefit accrual purposes unless specifically set
forth herein) be given credit for meeting eligibility and
vesting requirements in such plans for service as an employee of
ABNJ or American Bank or any predecessor thereto prior to the
Effective Time, provided, however, that credit for prior service
shall not be given for any purpose under the Investors ESOP, and
provided further, that credit for benefit accrual purposes will
be given only for purposes of Investors vacation policies or
programs and for purposes of the calculation of severance
benefits under any severance compensation plan of Investors.
This Agreement shall not be construed to limit the ability of
Investors or Investors Savings Bank to terminate the employment
of any employee or to review employee benefits programs from
time to time and to make such changes (including terminating any
program) as they deem appropriate.
7.8.2. Subject to the occurrence of the Effective Time, the
ABNJ ESOP shall be terminated immediately prior to and effective
as of the Effective Time (all shares held by the ABNJ ESOP shall
be converted into the right to receive the Merger Consideration,
as elected by the ABNJ ESOP participants), all outstanding ABNJ
ESOP indebtedness shall be repaid, and the balance of the shares
and any other assets remaining in the Loan Suspense Account (as
such term is defined in the ABNJ ESOP) shall be allocated and
distributed to ABNJ ESOP participants (subject to the receipt of
a favorable determination letter from the IRS), as provided for
in the ABNJ ESOP and unless otherwise required by applicable
law. Prior to the Effective Time, ABNJ, and following the
Effective Time, Investors shall use their respective best
efforts in good faith to obtain such favorable determination
letter (including, but not limited to, making such changes to
the ABNJ ESOP and the proposed allocations as may be requested
by the IRS as a condition to its issuance of a favorable
determination letter). ABNJ and following the Effective Time,
Investors, will adopt such amendments to the ABNJ ESOP as may be
reasonably required by the IRS as a condition to granting such
favorable determination letter on termination. Neither ABNJ, nor
following the Effective Time, Investors, shall make any
distribution from the ABNJ ESOP except as may be required by
applicable law until receipt of such favorable determination
letter. In the case of a conflict between the terms of this
Section 7.8.2 and the terms of the ABNJ ESOP, the terms of
the ABNJ ESOP shall control; however, in the event of any such
conflict, ABNJ before the Merger and Investors after the Merger,
shall use their best efforts to cause the ESOP to be amended to
conform to the requirements of this Section.
7.8.3. The payments and benefits that would be required to
be made under the employment agreements, Executive Salary
Continuation Agreements and split dollar agreements between
(i) ABNJ
and/or
American Bank and (ii) each of the following individuals,
Messrs. Kliminski, Kowal, Heyer, Bzdek and
Xxxxxxxx, Jr. and Xx. Xxxxxxxxx, assuming a
termination of employment as of the Effective Time and to any
current or former director under the Directors Consultation and
Retirement Plan assuming a termination of service as of the
Effective Time shall be made, unless otherwise set forth herein,
immediately prior to the Effective Time, and in accordance with
the principles set forth in such agreements and in INVESTORS
DISCLOSURE SCHEDULE 7.8.3 Each of the individuals
referenced in this Section 7.8.3 entitled to a payment
under the agreements shall sign an acknowledgement in connection
with the execution of this Agreement, which shall be included in
INVESTORS DISCLOSURE SCHEDULE 7.8.3, agreeing to the
application of the principles set forth in this Section, which
acknowledgement shall also include explanatory detail and
analysis as to the method of the calculation of the payments and
benefits due. INVESTORS DISCLOSURE SCHEDULE 7.8.3 shall
also include the form of the acknowledgment and release that
each executive and director or former
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director shall sign in connection with any payment
and/or
provision of benefits under their respective agreements.
7.8.4. Any employee of ABNJ or any ABNJ Subsidiary who is
not a party to an employment, change in control or severance
agreement or contract providing severance payments shall, at the
Effective Time, be covered by and eligible to receive severance
benefits under the severance plan set forth in ABNJ DISCLOSURE
SCHEDULE 7.8.4 in accordance with the terms of such plan or
policy.
7.8.5. In the event of any termination or consolidation of
any ABNJ health plan with any Investors health plan, Investors
shall make available to employees of ABNJ or any ABNJ Subsidiary
who continue employment with Investors or a Investors Subsidiary
(“Continuing Employees”) and their dependents
employer-provided health coverage on the same basis as it
provides such coverage to Investors employees. Unless a
Continuing Employee affirmatively terminates coverage under a
ABNJ health plan prior to the time that such Continuing Employee
becomes eligible to participate in the Investors health plan, no
coverage of any of the Continuing Employees or their dependents
shall terminate under any of the ABNJ health plans prior to the
time such Continuing Employees and their dependents become
eligible to participate in the health plans, programs and
benefits common to all employees of Investors and their
dependents. In the event of a termination or consolidation of
any ABNJ health plan, terminated ABNJ employees and qualified
beneficiaries will have the right to continued coverage under
group health plans of Investors in accordance with Code
Section 4980B(f), consistent with the provisions below. In
the event of any termination of any ABNJ health plan, or
consolidation of any ABNJ health plan with any Investors health
plan, any coverage limitation under the Investors health plan
due to any pre-existing condition shall be waived by the
Investors health plan to the degree that such condition was
covered by the ABNJ health plan and such condition would
otherwise have been covered by the Investors health plan in the
absence of such coverage limitation. Continuing Employees who
cease participating in an ABNJ health plan and become
participants in a comparable Investors health plan shall receive
credit for any co-payment and deductibles paid under ABNJ’s
health plan for purposes of satisfying any applicable deductible
or out-of-pocket requirements under the Investors health plan,
upon substantiation, in a form satisfactory to Investors or
Investors’ health insurance carrier that such co-payment
and/or
deductible has been satisfied.
7.9. Directors and Officers Indemnification and
Insurance.
7.9.1. For a period of six years after the Effective Time,
Investors shall indemnify, defend and hold harmless each person
who is now, or who has been at any time before the date hereof
or who becomes before the Effective Time, an officer, director
or employee of ABNJ or a ABNJ Subsidiary (the “Indemnified
Parties”) against all losses, claims, damages, costs,
expenses (including attorney’s fees), liabilities or
judgments or amounts that are paid in settlement (which
settlement shall require the prior written consent of Investors,
which consent shall not be unreasonably withheld) of or in
connection with any claim, action, suit, proceeding or
investigation, whether civil, criminal, or administrative (each
a “Claim”), in which an Indemnified Party is, or is
threatened to be made, a party or witness in whole or in part on
or arising in whole or in part out of the fact that such person
is or was a director, officer or employee of ABNJ or a ABNJ
Subsidiary if such Claim pertains to any matter of fact arising,
existing or occurring at or before the Effective Time
(including, without limitation, the Merger and the other
transactions contemplated hereby), regardless of whether such
Claim is asserted or claimed before, or after, the Effective
Time (the “Indemnified Liabilities”), to the fullest
extent that such Indemnified Parties were entitled to
indemnification under applicable New Jersey and federal law and
under ABNJ’s Certificate of Incorporation and Bylaws. This
right of indemnification shall include the right to be paid
expenses in advance of the final disposition of any such action
or proceeding upon receipt of an undertaking to repay such
advance payments if it shall be adjudicated or determined that
such Indemnified Party is not entitled to indemnification. Any
Indemnified Party wishing to claim indemnification under this
Section 7.9.1 upon learning of any Claim, shall notify
Investors (but the failure so to notify Investors shall not
relieve it from any liability which it may have under this
Section 7.9.1, except to the extent such failure materially
prejudices Investors) and shall deliver to Investors the
undertaking referred to in the previous sentence.
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7.9.2. In the event that either Investors or any of its
successors or assigns (i) consolidates with or merges into
any other person and shall not be the continuing or surviving
bank or entity of such consolidation or merger or
(ii) transfers all or substantially all of its properties
and assets to any person, then, and in each such case, proper
provision shall be made so that the successors and assigns of
Investors shall assume the obligations set forth in this
Section 7.9.
7.9.3. Investors shall maintain, or shall cause Investors
Savings Bank to maintain, in effect for six years following the
Effective Time, the current directors’ and officers’
liability insurance policies covering the officers and directors
of ABNJ (provided, that Investors may substitute therefor
policies of at least the same coverage containing terms and
conditions which are not materially less favorable) with respect
to matters occurring at or prior to the Effective Time;
provided, however, that in no event shall Investors be required
to expend pursuant to this Section 7.9.3 more than 175% of
the annual cost currently expended by ABNJ with respect to such
insurance (the “Maximum Amount”); provided,
further, that if the amount of the premium necessary to
maintain or procure such insurance coverage exceeds the Maximum
Amount, Investors shall maintain the most advantageous policies
of directors’ and officers’ insurance obtainable for a
premium equal to the Maximum Amount. In connection with the
foregoing, ABNJ agrees in order for Investors to fulfill its
agreement to provide directors and officers liability insurance
policies for six years to provide such insurer or substitute
insurer with such reasonable and customary representations as
such insurer may request with respect to the reporting of any
prior claims.
7.9.4. The obligations of Investors provided under this
Section 7.9 are intended to be enforceable against
Investors directly by the Indemnified Parties and shall be
binding on all respective successors and permitted assigns of
Investors.
7.10. Stock Listing.
Investors agrees to list on the Nasdaq (or such other national
securities exchange on which the shares of the Investors Common
Stock shall be listed as of the date of consummation of the
Merger), subject to official notice of issuance, the shares of
Investors Common Stock to be issued in the Merger.
7.11. Stock and Cash Reserve.
Investors agrees at all times from the date of this Agreement
until the Merger Consideration has been paid in full to reserve
a sufficient number of shares of its common stock and to
maintain sufficient liquid accounts or borrowing capacity to
fulfill its obligations under this Agreement.
ARTICLE VIII
REGULATORY
AND OTHER MATTERS
8.1. ABNJ Shareholder Meeting.
ABNJ will (i) as promptly as practicable after the Merger
Registration Statement is declared effective by the SEC, take
all steps necessary to duly call, give notice of, convene and
hold a meeting of its shareholders (the “ABNJ Shareholders
Meeting”), for the purpose of considering this Agreement
and the Merger, and for such other purposes as may be, in
ABNJ’s reasonable judgment, necessary or desirable,
(ii) subject to Section 6.10, have its Board of
Directors recommend approval of this Agreement to the ABNJ
shareholders.
8.2. Proxy Statement-Prospectus.
8.2.1. For the purposes (x) of registering Investors
Common Stock to be offered to holders of ABNJ Common Stock in
connection with the Merger with the SEC under the Securities Act
and (y) of holding the ABNJ Shareholders Meeting, Investors
shall draft and prepare, and ABNJ shall cooperate in the
preparation of, the Merger Registration Statement, including a
proxy statement and prospectus satisfying all applicable
requirements of applicable state securities and banking laws,
and of the Securities Act and the Exchange Act, and the rules
and regulations thereunder (such proxy statement/prospectus in
the form mailed to the ABNJ shareholders, together with any and
all amendments or supplements thereto, being herein referred to
as the “Proxy Statement-Prospectus”). Investors shall
file the Merger Registration Statement, including the Proxy
X-00
Xxxxxxxxx-Xxxxxxxxxx, with the SEC. Each of Investors and ABNJ
shall use their best efforts to have the Merger Registration
Statement declared effective under the Securities Act as
promptly as practicable after such filing, and ABNJ shall
thereafter promptly mail the Proxy Statement-Prospectus to the
ABNJ shareholders. Investors shall also use its best efforts to
obtain all necessary state securities law or “Blue
Sky” permits and approvals required to carry out the
transactions contemplated by this Agreement, and ABNJ shall
furnish all information concerning ABNJ and the holders of ABNJ
Common Stock as may be reasonably requested in connection with
any such action.
8.2.2. ABNJ shall provide Investors with any information
concerning itself that Investors may reasonably request in
connection with the drafting and preparation of the Proxy
Statement-Prospectus, and Investors shall notify ABNJ promptly
of the receipt of any comments of the SEC with respect to the
Proxy Statement-Prospectus and of any requests by the SEC for
any amendment or supplement thereto or for additional
information and shall provide to ABNJ promptly copies of all
correspondence between Investors or any of their representatives
and the SEC. Investors shall give ABNJ and its counsel the
opportunity to review and comment on the Proxy
Statement-Prospectus prior to its being filed with the SEC and
shall give ABNJ and its counsel the opportunity to review and
comment on all amendments and supplements to the Proxy
Statement-Prospectus and all responses to requests for
additional information and replies to comments prior to their
being filed with, or sent to, the SEC. Each of Investors and
ABNJ agrees to use all reasonable efforts, after consultation
with the other party hereto, to respond promptly to all such
comments of and requests by the SEC and to cause the Proxy
Statement-Prospectus and all required amendments and supplements
thereto to be mailed to the holders of ABNJ Common Stock
entitled to vote at the ABNJ Shareholders Meeting hereof at the
earliest practicable time.
8.2.3. ABNJ and Investors shall promptly notify the other
party if at any time it becomes aware that the Proxy
Statement-Prospectus or the Merger Registration Statement
contains any untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary
to make the statements contained therein, in light of the
circumstances under which they were made, not misleading. In
such event, ABNJ shall cooperate with Investors in the
preparation of a supplement or amendment to such Proxy
Statement-Prospectus that corrects such misstatement or
omission, and Investors shall file an amended Merger
Registration Statement with the SEC, and ABNJ shall mail an
amended Proxy Statement-Prospectus to the ABNJ shareholders.
8.3. Regulatory Approvals.
Each of ABNJ and Investors will cooperate with the other and use
all reasonable efforts to promptly prepare all necessary
documentation, to effect all necessary filings and to obtain all
necessary permits, consents, waivers, approvals and
authorizations of the SEC, the Bank Regulators and any other
third parties and governmental bodies necessary to consummate
the transactions contemplated by this Agreement. ABNJ and
Investors will furnish each other and each other’s counsel
with all information concerning themselves, their subsidiaries,
directors, officers and shareholders and such other matters as
may be necessary or advisable in connection with the Proxy
Statement-Prospectus and any application, petition or any other
statement or application made by or on behalf of ABNJ, Investors
to any Bank Regulatory or governmental body in connection with
the Merger, and the other transactions contemplated by this
Agreement. ABNJ shall have the right to review and approve in
advance all characterizations of the information relating to
ABNJ and any ABNJ Subsidiary, which appear in any filing made in
connection with the transactions contemplated by this Agreement
with any governmental body. Investors shall give ABNJ and its
counsel the opportunity to review and comment on each filing
prior to its being filed with a Bank Regulator and shall give
ABNJ and its counsel the opportunity to review and comment on
all amendments and supplements to such filings and all responses
to requests for additional information and replies to comments
prior to their being filed with, or sent to, a Bank Regulator.
Investors will file a regulatory application with the FRB for
approval to issue shares in Merger within 30 days of the
date hereof.
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ARTICLE IX
CLOSING
CONDITIONS
9.1. Conditions to Each Party’s Obligations
under this Agreement.
The respective obligations of each party under this Agreement
shall be subject to the fulfillment at or prior to the Closing
Date of the following conditions, none of which may be waived:
9.1.1. Shareholder Approval. This Agreement and the
transactions contemplated hereby shall have been approved by the
requisite vote of the shareholders of ABNJ.
9.1.2. Injunctions. None of the parties hereto shall
be subject to any order, decree or injunction of a court or
agency of competent jurisdiction that enjoins or prohibits the
consummation of the transactions contemplated by this Agreement
and no statute, rule or regulation shall have been enacted,
entered, promulgated, interpreted, applied or enforced by any
Governmental Entity or Bank Regulator, that enjoins or prohibits
the consummation of the transactions contemplated by this
Agreement.
9.1.3. Regulatory Approvals. Subject to
Section 3.5, all Regulatory Approvals and other necessary
approvals, authorizations and consents of any Governmental
Entities required to consummate the transactions contemplated by
this Agreement shall have been obtained and shall remain in full
force and effect and all waiting periods relating to such
approvals, authorizations or consents shall have expired; and no
such approval, authorization or consent shall include any
condition or requirement, excluding standard conditions that are
normally imposed by the regulatory authorities in bank merger
transactions, that would, in the good faith reasonable judgment
of the Board of Directors of Investors, materially and adversely
affect the business, operations, financial condition, property
or assets of the combined enterprise of ABNJ, American Bank and
Investors or materially impair the value of ABNJ or American
Bank to Investors.
9.1.4. Effectiveness of Merger Registration
Statement. The Merger Registration Statement shall have
become effective under the Securities Act and no stop order
suspending the effectiveness of the Merger Registration
Statement shall have been issued, and no proceedings for that
purpose shall have been initiated or threatened by the SEC and,
if the offer and sale of Investors Common Stock in the Merger is
subject to the blue sky laws of any state, shall not be subject
to a stop order of any state securities commissioner.
9.1.5. Nasdaq Listing. The shares of Investors
Common Stock to be issued in the Merger shall have been
authorized for listing on the Nasdaq, subject to official notice
of issuance.
9.1.6. Tax Opinion. On the basis of facts,
representations and assumptions which shall be consistent with
the state of facts existing at the Closing Date, Investors shall
have received an opinion of Xxxx Xxxxxx Xxxxxxxx &
Xxxxxx, P.C., reasonably acceptable in form and substance
to Investors and ABNJ, dated as of the Closing Date,
substantially to the effect that for federal income tax
purposes, the Merger will qualify as a reorganization within the
meaning of Section 368(a) of the Code. In rendering the tax
opinions described in this Section 9.1.6, the law firm may
require and rely upon customary representations contained in
certificates of officers of Investors and ABNJ and their
respective Subsidiaries. This condition shall not apply if the
Merger proceeds under Section 3.5.
9.2. Conditions to the Obligations of Investors
under this Agreement.
The obligations of Investors under this Agreement shall be
further subject to the satisfaction of the conditions set forth
in Sections 9.2.1 through 9.2.5 at or prior to the Closing
Date:
9.2.1. Representations and Warranties. Each of the
representations and warranties of ABNJ set forth in this
Agreement shall be true and correct as of the date of this
Agreement and upon the Effective Time with the same effect as
though all such representations and warranties had been made on
the Effective Time (except to the extent such representations
and warranties speak as of an earlier date), in any case subject
to the standard set forth in Section 4.1; and ABNJ shall
have delivered to Investors a certificate to such effect signed
by the Chief Executive Officer and the Chief Financial Officer
of ABNJ as of the Effective Time.
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9.2.2. Agreements and Covenants. ABNJ shall have
performed in all material respects all obligations and complied
in all material respects with all agreements or covenants to be
performed or complied with by it at or prior to the Effective
Time, and Investors shall have received a certificate signed on
behalf of ABNJ by the Chief Executive Officer and Chief
Financial Officer of ABNJ to such effect dated as of the
Effective Time.
9.2.3. Permits, Authorizations, Etc. ABNJ shall have
obtained any and all material permits, authorizations, consents,
waivers, clearances or approvals required for the lawful
consummation of the Merger and the Bank Merger.
9.2.4. No Material Adverse Effect. Since
September 30, 2007, no event has occurred or circumstance
arisen that, individually or in the aggregate, has had or is
reasonably likely to have a Material Adverse Effect on ABNJ.
ABNJ will furnish Investors with such certificates of its
officers or others and such other documents to evidence
fulfillment of the conditions set forth in this Section 9.2
as Investors may reasonably request.
9.3. Conditions to the Obligations of ABNJ under
this Agreement.
The obligations of ABNJ under this Agreement shall be further
subject to the satisfaction of the conditions set forth in
Sections 9.3.1 through 9.3.5 at or prior to the Closing
Date:
9.3.1. Representations and Warranties. Each of the
representations and warranties of Investors set forth in this
Agreement shall be true and correct as of the date of this
Agreement and upon the Effective Time with the same effect as
though all such representations and warranties had been made on
the Effective Time (except to the extent such representations
and warranties speak as of an earlier date), in any case subject
to the standard set forth in Section 5.1; and Investors
shall have delivered to ABNJ a certificate to such effect signed
by the Chief Executive Officer and the Chief Financial Officer
of Investors as of the Effective Time.
9.3.2. Agreements and Covenants. Investors shall
have performed in all material respects all obligations and
complied in all material respects with all agreements or
covenants to be performed or complied with by it at or prior to
the Effective Time, and ABNJ shall have received a certificate
signed on behalf of Investors by the Chief Executive Officer and
Chief Financial Officer to such effect dated as of the Effective
Time.
9.3.3. Permits, Authorizations, Etc. Investors shall
have obtained any and all material permits, authorizations,
consents, waivers, clearances or approvals required for the
lawful consummation of the Merger and the Bank Merger.
9.3.4. Payment of Merger Consideration. Investors
shall have delivered the Exchange Fund to the Exchange Agent on
or before the Closing Date and the Exchange Agent shall provide
ABNJ with a certificate evidencing such delivery.
9.3.5. No Material Adverse Effect. Since
June 30, 2008, no event has occurred or circumstance arisen
that, individually or in the aggregate, has had or is reasonably
likely to have a Material Adverse Effect on Investors. This
condition shall not apply if the Merger proceeds under
Section 3.5.
Investors will furnish ABNJ with such certificates of its
officers or others and such other documents to evidence
fulfillment of the conditions set forth in this Section 9.3
as ABNJ may reasonably request.
ARTICLE X
THE CLOSING
10.1. Time and Place.
Subject to the provisions of Articles IX and XI hereof, the
Closing of the transactions contemplated hereby shall take place
at the offices of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, 0000
Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, X.X. at
10:00 a.m., or at such other place or time upon which
Investors and ABNJ mutually agree. A pre-closing of the
transactions contemplated hereby (the “Pre-Closing”)
shall take place at the offices
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of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, 0000 Xxxxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxxxxx, X.X. at 10:00 a.m.
on the day prior to the Closing Date.
10.2. Deliveries at the Pre-Closing and the
Closing.
At the Pre-Closing there shall be delivered to Investors and
ABNJ the opinions, certificates, and other documents and
instruments required to be delivered at the Pre-Closing under
Article IX hereof. At or prior to the Closing, Investors
shall have delivered the Merger Consideration as set forth under
Section 9.3.4 hereof.
ARTICLE XI
TERMINATION,
AMENDMENT AND WAIVER
11.1. Termination.
This Agreement may be terminated at any time prior to the
Closing Date, whether before or after approval of the Merger by
the shareholders of ABNJ:
11.1.1. At any time by the mutual written agreement of
Investors and ABNJ;
11.1.2. By the Board of Directors of either party
(provided, that the terminating party is not then in material
breach of any representation, warranty, covenant or other
agreement contained herein) if there shall have been a material
breach of any of the representations or warranties set forth in
this Agreement on the part of the other party, which breach by
its nature cannot be cured prior to the Termination Date or
shall not have been cured within 30 days after written
notice of such breach by the terminating party to the other
party; provided, however, that neither party shall have the
right to terminate this Agreement pursuant to this
Section 11.1.2 unless the breach of representation or
warranty, together with all other such breaches, would entitle
the terminating party not to consummate the transactions
contemplated hereby under Section 9.2.1 (in the case of a
breach of a representation or warranty by ABNJ) or
Section 9.3.1 (in the case of a breach of a representation
or warranty by Investors);
11.1.3. By the Board of Directors of either party
(provided, that the terminating party is not then in material
breach of any representation, warranty, covenant or other
agreement contained herein) if there shall have been a material
failure to perform or comply with any of the covenants or
agreements set forth in this Agreement on the part of the other
party, which failure by its nature cannot be cured prior to the
Termination Date or shall not have been cured within
30 days after written notice of such failure by the
terminating party to the other party; provided, however, that
neither party shall have the right to terminate this Agreement
pursuant to this Section 11.1.3 unless the breach of
covenant or agreement, together with all other such breaches,
would entitle the terminating party not to consummate the
transactions contemplated hereby under Section 9.2.2 (in
the case of a breach of covenant by ABNJ) or Section 9.3.2
(in the case of a breach of covenant by Investors);
11.1.4. At the election of the Board of Directors of either
party if the Closing shall not have occurred by the Termination
Date, or such later date as shall have been agreed to in writing
by Investors and ABNJ; provided, that no party may terminate
this Agreement pursuant to this Section 11.1.4 if the
failure of the Closing to have occurred on or before said date
was due to such party’s material breach of any
representation, warranty, covenant or other agreement contained
in this Agreement;
11.1.5. By the Board of Directors of either party if the
shareholders of ABNJ shall have voted at its shareholders’
meeting on the transactions contemplated by this Agreement and
such vote shall not have been sufficient to approve such
transactions;
11.1.6. By the Board of Directors of either party if
(i) final action has been taken by a Bank Regulator whose
approval is required in connection with this Agreement and the
transactions contemplated hereby, which final action
(x) has become unappealable and (y) does not approve
this Agreement or the transactions contemplated hereby, or
(ii) any court of competent jurisdiction or other
governmental authority shall have issued an order, decree,
ruling or taken any other action restraining, enjoining or
otherwise prohibiting the Merger and such order, decree, ruling
or other action shall have become final and nonappealable;
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11.1.7. By the Board of Directors of either party
(provided, that the terminating party is not then in material
breach of any representation, warranty, covenant or other
agreement contained herein) in the event that any of the
conditions precedent to the obligations of such party to
consummate the Merger cannot be satisfied or fulfilled by the
date specified in Section 11.1.4 of this Agreement.
11.1.8. By the Board of Directors of Investors if ABNJ has
received a Superior Proposal, and in accordance with
Section 6.10 of this Agreement, the Board of Directors of
ABNJ has entered into an acquisition agreement with respect to
the Superior Proposal, terminated this Agreement, or withdraws
its recommendation of this Agreement, fails to make such
recommendation or modifies or qualifies its recommendation in a
manner adverse to Investors.
11.1.9. By the Board of Directors of ABNJ if ABNJ has
received a Superior Proposal, and in accordance with
Section 6.10 of this Agreement, the Board of Directors of
ABNJ has made a determination to accept such Superior Proposal.
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 $10.85; and
(ii) 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 the
quotient obtained by dividing the Final Index Price by the
Initial Index Price minus 0.20;
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 of paying additional Merger Consideration in the form
of Investors Common Stock, cash, or a combination of Investors
Common Stock and cash so that the Aggregate Investors Share
Amount shall be valued at the lesser of (i) the product of
0.80 and the Initial Investors Market Value or (ii) the
product obtained by multiplying the Index Ratio by the Initial
Investors Market Value. If within such five business day period,
Investors delivers written notice to ABNJ that it intends to
proceed with the Merger by paying such additional consideration,
as contemplated by the preceding sentence, then no termination
shall 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 that the Merger Consideration
shall have been so modified). Moreover, this
Section 11.1.10 shall not apply if the Merger proceeds in
accordance with the provisions of Section 3.5.
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.
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“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.
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.
11.2. Effect of Termination.
11.2.1. In the event of termination of this Agreement
pursuant to any provision of Section 11.1, this Agreement
shall forthwith become void and have no further force, except
that (i) the provisions of Sections 11.2, 12.1, 12.2,
12.6, 12.9, 12.10, and any other Section which, by its terms,
relates to post-termination rights or obligations, shall survive
such termination of this Agreement and remain in full force and
effect.
11.2.2. If this Agreement is terminated, expenses and
damages of the parties hereto shall be determined as follows:
(A) Except as provided below, whether or not the Merger is
consummated, all costs and expenses incurred in connection with
this Agreement and the transactions contemplated by this
Agreement shall be paid by the party incurring such expenses.
(B) In the event of a termination of this Agreement because
of a willful breach of any representation, warranty, covenant or
agreement contained in this Agreement, the breaching party shall
remain liable for any and all damages, costs and expenses,
including all reasonable attorneys’ fees, sustained or
incurred by the non-breaching party as a result thereof or in
connection therewith or with respect to the enforcement of its
rights hereunder.
(C) As a condition of Investors’ willingness, and in
order to induce Investors, to enter into this Agreement, and to
reimburse Investors for incurring the costs and expenses related
to entering into this Agreement and consummating the
transactions contemplated by this Agreement, ABNJ hereby agrees
to pay Investors, and Investors shall be entitled to payment of
a fee of $5.6 million (the “Investors Fee”),
within three business days after written demand for payment is
made by Investors, following the occurrence of any of the events
set forth below:
(i) ABNJ terminates this Agreement pursuant to
Section 11.1.9 or Investors terminates this Agreement
pursuant to Section 11.1.8; or
(ii) The entering into a definitive agreement by ABNJ
relating to an Acquisition Proposal or the consummation of an
Acquisition Proposal involving ABNJ within twelve months after
the occurrence of any of the following: (i) the termination
of the Agreement by Investors pursuant to Section 11.1.2 or
11.1.3 because of a willful breach by ABNJ; or (ii) the
failure of the shareholders of ABNJ to approve this Agreement
after the occurrence of an Acquisition Proposal.
(D) If demand for payment of the Investors Fee is made
pursuant to Section 11.2.2(C) and payment is timely made,
then Investors will not have any other rights or claims against
ABNJ, its Subsidiaries, and their respective officers and
directors, under this Agreement, it being agreed that the
acceptance of the Investors Fee under Section 11.2.2(C)
will constitute the sole and exclusive remedy of Investors
against ABNJ and its Subsidiaries and their respective officers
and directors.
11.3. Amendment, Extension and Waiver.
Subject to applicable law, at any time prior to the Effective
Time (whether before or after approval thereof by the
shareholders of ABNJ), the parties hereto by action of their
respective Boards of Directors, may (a) amend this
Agreement, (b) extend the time for the performance of any
of the obligations or other acts of any other party hereto,
(c) waive any inaccuracies in the representations and
warranties contained herein or in any document delivered
pursuant hereto, or (d) waive compliance with any of the
agreements or conditions
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contained herein; provided, however, that after any approval of
this Agreement and the transactions contemplated hereby by the
shareholders of ABNJ, there may not be, without further approval
of such shareholders, any amendment of this Agreement which
reduces the amount, value or changes the form of consideration
to be delivered to ABNJ’s shareholders pursuant to this
Agreement, except as provided in Section 3.5 hereof. This
Agreement may not be amended except by an instrument in writing
signed on behalf of each of the parties hereto. Any agreement on
the part of a party hereto to any extension or waiver shall be
valid only if set forth in an instrument in writing signed on
behalf of such party, but such waiver or failure to insist on
strict compliance with such obligation, covenant, agreement or
condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure.
ARTICLE XII
MISCELLANEOUS
12.1. Confidentiality.
Except as specifically set forth herein, Investors and ABNJ
mutually agree to be bound by the terms of the confidentiality
agreements dated October 14, 2008 (the
“Confidentiality Agreement”) previously executed by
the parties hereto, which Confidentiality Agreement is hereby
incorporated herein by reference. The parties hereto agree that
such Confidentiality Agreements shall continue in accordance
with their respective terms, notwithstanding the termination of
this Agreement.
12.2. Public Announcements.
ABNJ and Investors shall cooperate with each other in the
development and distribution of all news releases and other
public disclosures with respect to this Agreement, and except as
may be otherwise required by law, neither ABNJ nor Investors
shall issue any news release, or other public announcement or
communication with respect to this Agreement unless such news
release, public announcement or communication has been mutually
agreed upon by the parties hereto.
12.3. Survival.
All representations, warranties and covenants in this Agreement
or in any instrument delivered pursuant hereto or thereto shall
expire on and be terminated and extinguished at the Effective
Time, except for those covenants and agreements contained herein
which by their terms apply in whole or in part after the
Effective Time.
12.4. Notices.
All notices or other communications hereunder shall be in
writing and shall be deemed given if delivered by receipted hand
delivery or mailed by prepaid registered or certified mail
(return receipt requested) or by recognized overnight courier
addressed as follows:
|
If to ABNJ, to:
|
Xxxxxx Xxxxxxxxx Chief Executive Officer American Bancorp of New Jersey, Inc. 000 Xxxxx Xxxxxx Xxxxxxxxxx, Xxx Xxxxxx 00000 Fax: (000) 000-0000 |
|
|
With required copies to:
|
Xxxxx X. Xxxxxxxxx, Esq. Silver, Xxxxxxxx & Xxxx, L.L.P. 0000 X Xxxxxx, X.X., Xxxxx 000 Xxxxxxxxxx, X.X. 00000 Fax: (000) 000-0000 |
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|
If to Investors, to:
|
Xxxxx Xxxxxxxx President and Chief Executive Officer Investors Bancorp, Inc. 000 XXX Xxxxxxx Xxxxx Xxxxx, Xxx Xxxxxx 00000 Fax: (000) 000-0000 |
|
|
With required copies to:
|
Xxxx X. Xxxxxx, Esq. Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. 0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000 Xxxxxxxxxx, X.X. 00000 Fax: (000) 000-0000 |
or such other address as shall be furnished in writing by any
party, and any such notice or communication shall be deemed to
have been given: (a) as of the date delivered by hand;
(b) three (3) business days after being delivered to
the U.S. mail, postage prepaid; or (c) one
(1) business day after being delivered to the overnight
courier.
12.5. Parties in Interest.
This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors
and assigns; provided, however, that neither this Agreement nor
any of the rights, interests or obligations hereunder shall be
assigned by any party hereto without the prior written consent
of the other party. Except as provided in Article III and
Sections 7.8.2 and 7.9, nothing in this Agreement, express
or implied, is intended to confer upon any person, other than
the parties hereto and their respective successors, any rights,
remedies, obligations or liabilities under or by reason of this
Agreement.
12.6. Complete Agreement.
This Agreement, including the Exhibits and Disclosure Schedules
hereto and the documents and other writings referred to herein
or therein or delivered pursuant hereto, and the Confidentiality
Agreement, referred to in Section 12.1, contains the entire
agreement and understanding of the parties with respect to its
subject matter. There are no restrictions, agreements, promises,
warranties, covenants or undertakings between the parties other
than those expressly set forth herein or therein. This Agreement
supersedes all prior agreements and understandings (other than
the Confidentiality Agreements referred to in Section 12.1
hereof) between the parties, both written and oral, with respect
to its subject matter.
12.7. Counterparts.
This Agreement may be executed in one or more counterparts all
of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by
each of the parties and delivered to the other parties. A
facsimile or other electronic copy of a signature page shall be
deemed to be an original signature page.
12.8. Severability.
In the event that any one or more provisions of this Agreement
shall for any reason be held invalid, illegal or unenforceable
in any respect, by any court of competent jurisdiction, such
invalidity, illegality or unenforceability shall not affect any
other provisions of this Agreement and the parties shall use
their reasonable efforts to substitute a valid, legal and
enforceable provision which, insofar as practical, implements
the purposes and intents of this Agreement.
12.9. Governing Law
This Agreement shall be governed by the laws of Delaware,
without giving effect to its principles of conflicts of laws.
12.10. Waiver of Trial by Jury.
The parties hereto hereby knowingly, voluntarily and
intentionally waive the right any may have to a trial by jury in
respect to any litigation based hereon, or arising out of,
under, or in connection with this Agreement
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and any agreement contemplated to be executed in connection
herewith, or any course of conduct, course of dealing,
statements (whether verbal or written) or actions of either
party in connection with such agreements.
12.11. Interpretation.
When a reference is made in this Agreement to Sections or
Exhibits, such reference shall be to a Section of or Exhibit to
this Agreement unless otherwise indicated. The recitals hereto
constitute an integral part of this Agreement. References to
Sections include subsections, which are part of the related
Section (e.g., a section numbered “Section 5.5.1”
would be part of “Section 5.5” and references to
“Section 5.5” would also refer to material
contained in the subsection described as
“Section 5.5.1”). The table of contents, index
and headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the words
“include”, “includes” or
“including” are used in this Agreement, they shall be
deemed to be followed by the words “without
limitation”. The phrases “the date of this
Agreement”, “the date hereof” and terms of
similar import, unless the context otherwise requires, shall be
deemed to refer to the date set forth in the Recitals to this
Agreement. The parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the
parties and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of
any of the provisions of this Agreement.
12.12. Specific Performance.
The parties hereto agree that irreparable damage would occur in
the event that the provisions contained in this Agreement were
not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the parties
shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms
and provisions thereof in any court of the United States or any
state having jurisdiction, this being in addition to any other
remedy to which they are entitled at law or in equity.
IN WITNESS WHEREOF, Investors and ABNJ have caused this
Agreement to be executed under seal by their duly authorized
officers as of the date first set forth above.
| Investors Bancorp, Inc. | ||
|
Dated: December 14, 2008
|
By:
/s/ Xxxxx
Xxxxxxxx Name: Xxxxx
Xxxxxxxx
Title: President and Chief Executive Officer |
|
| American Bancorp of New Jersey, Inc. | ||
|
Dated: December 14, 2008
|
By:
/s/ Xxxxxx
Xxxxxxxxx Name: Xxxxxx
Xxxxxxxxx
Title: Chief Executive Officer |
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