Exhibit 10.9
STOCK AND WARRANT PURCHASE AGREEMENT
STOCK AND WARRANT PURCHASE AGREEMENT, dated as of April 29, 1988,
between COMMERCE BANK/HARRISBURG, a Pennsylvania banking corporation (the
"Bank"), and COMMERCE BANCORP, INC., a New Jersey business corporation (the
"Acquiror") which is registered as a bank holding company under the Bank Holding
Company Act of 1956, as amended.
BACKGROUND
The Bank proposes to issue and sell to the Acquiror and the Acquiror
proposes to purchase from the Bank 40,000 shares of a new class of Bank
cumulative preferred stock, par value $10.00 per share, the rights and relative
preference of which are set forth on Exhibit "A" attached hereto and made a part
hereof (the "Preferred Stock") and warrants (the "Warrants") to purchase in the
aggregate 40,000 shares of the Bank's common stock, par value $6.25 per share
(the "Common Stock") pursuant to an agreement, a copy of which is attached
hereto as Exhibit "B" and made a part hereof (the "Warrant Agreement"), all upon
the terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, In consideration of the mutual covenants and agreements
set forth herein and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Sale and Purchase of Preferred Stock and Warrants.
On the Closing Date (as hereinafter defined) and subject to
the conditions precedent set forth herein, the Bank shall sell, transfer, assign
and convey to Acquiror, and Acquiror shall purchase and acquire from the Bank
the Preferred Stock and Warrants.
2. Consideration for Preferred Stock and Warrants.
The total consideration for the Preferred Stock and Warrants
shall be $1,000,000 which shall be payable on the Closing Date by certified or
bank check or by other checks or funds acceptable to the Bank.
3. Representations, Warranties and Covenants of the Acquiror.
The Acquiror hereby represents, warrants and covenants to the
Bank, on the date hereof, as follows:
(a) The Acquiror is a corporation duly organized, validly
existing and in good standing under the laws of New Jersey. The Acquiror is duly
registered as a bank holding company under the Bank Holding Company Act of 1956,
as amended.
(b) Subject to the receipt of all necessary regulatory
approvals and consents, and the expiration of all applicable waiting periods
("Regulatory Approvals") (i) the Acquiror has full legal right, power and
authority to enter into and perform this Agreement, (ii) the execution and
delivery of this Agreement by the Acquiror and the consummation by the Acquiror
of the transactions contemplated hereby have been duly authorized by all
necessary corporate action on behalf of the Acquiror and (iii) this Agreement
constitutes a legally valid and binding agreement of the Acquiror, enforceable
in accordance with its terms, except as such enforceability may be limited by
equitable principles or by the application of bankruptcy, insolvency, or other
laws affecting creditor's rights generally.
(c) The Acquiror shall promptly make all regulatory filings
necessary to complete the Closing and all other transactions contemplated by
this Agreement and will use its best efforts to receive all Regulatory
Approvals.
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4. Representations, Warranties and Covenants of the Bank. The Bank
hereby represents, warrants and covenants to the Acquiror, on the date hereof as
follows:
(a) The Bank is a banking corporation (without trust powers)
duly organized, validly existing and in good standing under the laws of the
Commonwealth of Pennsylvania, has all power and authority necessary to own or
hold its properties and to conduct the business in which it is engaged. The Bank
has no subsidiaries.
(b) The Bank is in material compliance with, and conducts its
business in substantial conformity with, all applicable laws and governmental
regulations governing banks. The Bank is not in violation of its articles of
incorporation or by-laws or in default under any agreement, indenture or
instrument, the effect of which violation or default would be material to the
Bank.
(c) Subject to the receipt of all necessary Regulatory
Approvals, the issue and sale of the Preferred Stock and Warrants, the
compliance by the Bank with all of the terms and provisions of the resolutions
adopted by the Board of Directors of the Bank establishing the Preferred Stock
and determining the relative rights and preferences thereof, and establishing
the Warrants (collectively the "Resolution"), the execution, delivery and
performance of this Agreement and the Warrant Agreement by the Bank and the
consummation of the transactions contemplated in this Agreement and the Warrant
Agreement will not conflict with, result in the creation or imposition of any
lien, charge or encumbrance upon any of the assets of the Bank pursuant to the
terms of, or constitute a breach or violation of any of the terms or provisions
of or a material default under, any statute, agreement, indenture or instrument
by which the Bank is bound or result in a violation of the articles of
incorporation or by-laws of the Bank or any rule or regulation of any court,
regulatory authority or governmental agency having jurisdiction over
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the Bank or its properties; and except for the Regulatory Approvals, no consent,
authorization or order of, or filing or registration with, any court,
governmental agency or regulatory authority is required for the execution,
delivery and performance of this Agreement and the Warrant Agreement.
(d) The Bank has not sustained since December 31, 1986 any
material loss or interference with its business, whether or not covered by
insurance otherwise than as disclosed in writing to Acquiror, and since the
respective dates such information was given to the Acquiror, there has not been,
and prior to the Closing Date there will not be any adverse material changes in
(other than general economic conditions affecting banks generally) or any
adverse development that materially affects, and the Bank is aware of no
prospective change in or development that might have a material adverse effect
on the business, general affairs, properties, management, financial condition or
results of operations of the Bank.
(e) The Resolution has been duly adopted by the Bank and shall
be duly filed forthwith with the Department of Banking of the Commonwealth of
Pennsylvania along with a Certificate of Amendment to its Articles of
Incorporation, in accordance with the Pennsylvania Banking Code of 1965 and upon
its filing and acceptance shall constitute a valid and legal amendment to the
Articles of Incorporation of the Bank.
(f) The preferred Stock being sold by the Bank, when issued,
delivered and paid for by the Acquiror on the Closing Date, will be validly
authorized and issued, fully paid and nonassessable, no personal liability will
attach to the ownership thereof, and the Acquiror will receive good title to the
Preferred Stock free and clear of any lien, claim, encumbrance, preemptive
rights or any other claim of any third party.
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(g) When issued and delivered in accordance with the terms of
this Agreement, the preferred Stock and Warrants will conform to the
descriptions thereof contained in Exhibits "A" and "B", respectively.
(h) The Warrants being sold by the Bank, when issued,
delivered and paid for by the Acquiror on the Closing Date, will be validly
issued and constitute valid and legally binding obligations of the Bank and will
be entitled to the benefits and exercisable in accordance with the terms of the
Warrant Agreement, and the Acquiror will receive good title to such Warrants
free and clear of any lien, claim, encumbrance or any other claim of any third
party. The shares of Common Stock issuable upon exercise of the Warrants have
been duly authorized by the Bank, duly reserved for issuance upon the exercise
of the Warrants and, when issued upon such exercise in accordance with the terms
of the Warrant Agreement, will be validly issued and outstanding, fully paid and
nonassessable, no personal liability will attach to the ownership thereof and
will be free and clear of any liens, claims, encumbrances, preemptive rights or
any other claim of any third party.
(i) Subject to the acceptance of Regulatory Approvals, the
Bank has full legal right, power and authority to enter into and perform this
Agreement and the Warrant Agreement, and the execution and delivery of this
Agreement and the Warrant Agreement by the Bank and the consummation by the Bank
of the transactions contemplated hereby and thereby have been duly authorized by
all necessary corporate actions on behalf of the Bank. This Agreement has been
duly authorized, executed and delivered by the Bank and constitutes a legally
valid and binding agreement of the Bank, enforceable in accordance with its
terms, except as such enforceability may be limited by equitable principles or
by the application of bankruptcy, insolvency, or other laws affecting creditor's
rights generally. The Warrant Agreement has been
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duly authorized by the Bank and, when executed and delivered by the Bank in
accordance with the terms of this Agreement, will be the legal, valid and
binding obligation of the Bank enforceable in accordance with its terms, except
as such enforceability may be limited by equitable principles or by the
application of bankruptcy, insolvency or other laws affecting creditors' rights
generally.
(j) As of the date hereof, the Bank's authorized capital stock
consists of: (i) 500,000 shares of common stock, par value $6.25 per share,
288,271 shares of which have been duly and validly authorized and issued, are
fully paid and nonassessable; and (ii) 200,000 shares of preferred stock, par
value $10.00 per share, none of which have been issued. There are no outstanding
options, warrants, rights or other arrangements requiring the Bank at any time
to issue any capital stock except as set forth on Exhibit "C" attached hereto
and made a part hereof.
(k) The Preferred Stock, Warrants and shares of Common Stock
issuable upon exercise of the Warrants are exempt from the registration
provisions of Section 5 of the Securities Act of 1933, as amended (the "Act"),
pursuant to Section 3(a)(2) thereof; and registration of the Preferred Stock,
Warrants and shares of Common Stock issuable upon exercise of the Warrants will
not be required under the Act in connection with the offer, sale, issuance or
delivery of the Preferred Stock, Warrants and shares of Common Stock issuable
upon exercise of the Warrants.
5. Closing.
(a) The Closing shall take place after all Regulatory
Approvals have been obtained, at such time and place as is mutually agreed upon
among the Bank and the Acquiror (the "Closing Date"); provided, however, that
such Closing will occur no later than 10 days after such Regulatory Approvals.
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(b) At the Closing, the Bank shall deliver certificates
representing the preferred Stock and the Warrants and the Acquiror shall deliver
the aggregate purchase price.
6. Conditions Precedent to the Acquiror's Obligations.
The obligations of the Acquiror hereunder to close under this
Agreement are subject to the following conditions precedent (all or any of which
may be waived by the Acquiror in its sole discretion):
(a) Each of the representations and warranties herein made by
the Bank shall be true in all material respects on the Closing Date as if made
on, as of, and with respect to the Closing Date, and the agreements to be
performed by the Bank on or before the Closing Date shall have been so performed
in all material respects. On the Closing Date, the Bank will furnish a
certificate to the Acquiror, dated as of the Closing Date, of its President and
Secretary to the effect set forth in this Section 6(a) hereof.
(b) On or before the Closing Date, the Acquiror and the Bank
shall have received all required Regulatory Approvals (including, without
limitation, the Pennsylvania Department of Banking and the Federal Reserve
Board) and any applicable waiting periods shall have expired.
(c) On or before the Closing Date, the Bank shall have taken
all corporate action necessary to approve this Agreement and the Warrant
Agreement and the transactions contemplated hereby and thereby and shall have
delivered to the Bank certified copies of the minutes of the meetings of the
Board of Directors of the Bank approving this Agreement, the Warrant Agreement,
and the transactions contemplated hereby and thereby.
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(d) The audited financial statements of the Bank at, and for
the year ended, December 31, 1987 shall have been delivered to the Acquiror and
they shall be reasonably acceptable to the Acquiror.
7. Conditions Precedent to the Bank's Obligations.
The obligation of the Bank hereunder to close under this
Agreement is subject to the following conditions precedent (all or any of which
may be waived by the Bank in its sole discretion):
(a) Each of the representations and warranties herein made by
the Acquiror shall be true in all material respects on the Closing Date as if
made on, as of, and with respect to the Closing Date, and the agreements to be
performed by the Acquiror on or before the Closing Date shall have been so
performed in all material respects. On the Closing Date, the Acquiror shall
furnish a certificate to the Bank dated the Closing Date, of its Chairman of the
Board and President and its Secretary, to the effect set forth in this Section
7(a) hereof.
(b) On or before the Closing Date, the Acquiror and the Bank
shall have received all Regulatory Approvals (including, without limitation, the
Pennsylvania Department of Banking and the Federal Reserve Board) and any
applicable waiting periods shall have expired.
(c) On or before the Closing Date, the Acquiror shall have
taken all corporate actions necessary to approve this Agreement, and the
transactions contemplated hereby, and shall have delivered to the Bank certified
copies of the minutes of the meetings of the Board of Directors of the Acquiror
approving this Agreement and the transactions contemplated hereby.
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8. Prior to Closing.
(a) The Bank agrees that the Acquiror may, prior to Closing,
through its own representatives, make such investigation of the assets,
liabilities and business of the Bank as it deems necessary or advisable solely
for purposes of facilitating the transactions contemplated by this Agreement.
From and after the date hereof, the Bank, subject to applicable law, will
provide to the officers and authorized representatives of the Acquiror its books
and records at such times as the Bank shall reasonably request in order that
such party may have the full opportunity to make such investigation of the
business and affairs of the Bank as the Acquiror shall desire, provided that
such investigation shall not unduly interfere with the normal conduct by the
Bank of its business. The Bank shall furnish to the Acquiror such information
about its business and affairs as the Acquiror may reasonably request in order
to consummate the transactions contemplated by this Agreement. All non-public
materials and information furnished by the Bank hereto shall be held strictly
confidential and may not be used by the Acquiror for its own benefit whatsoever
and will be returned to the Bank if the closing contemplated by this Agreement
does not occur. The obligations of the parties pursuant to the preceding
sentence shall survive any termination of this Agreement for any reason
whatsoever.
(b) The Bank will cooperate with the Acquiror in promptly
obtaining all Government Approvals necessary for the consummation of the
transactions contemplated by this Agreement and the Warrant Agreement. Each
party shall cooperate with the other party and shall promptly furnish and make
available to the other party any and all information, data and facts which may
be required to obtain all Governmental Approvals.
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9. Right of First Refusal.
(a) The Acquiror shall not sell, or permit the sale of the
Preferred Stock and Warrant without (i) first notifying the Bank of its
intention to sell and of all the terms and conditions of its proposed sale
(including a copy of any proposed agreement of sale) and of the name and address
of the proposed buyer or buyers who shall have made such offer in good faith
("Acquiror's Notice"), and (ii) affording the Bank (or its holding company, if
any) or its good faith designees (herein called collectively the "Group"), the
opportunity (the "right of first refusal") to purchase all, but not less than
all, of the shares of Preferred Stock and Warrants intended to be sold on the
same terms and conditions. Such right of first refusal shall be exercised by
sending to the Acquiror, within twenty business days after receipt of the
Acquiror's Notice, a legally binding obligation of any member of the Group to
purchase such shares described in the Acquiror's Notice on the same terms and
conditions as are described in the Acquiror's Notice. Provided all members of
the Group shall have proceeded diligently and in good faith to obtain all
necessary Regulatory Approvals and such Regulatory Approvals shall have been
obtained, settlement shall be held on or prior to one-hundred twenty business
days after the exercise of the right of first refusal. The Acquiror will in good
faith cooperate with all members of the Group in obtaining all necessary
Regulatory Approvals. The consideration paid by the purchasing member of the
Group shall be in cash, if the consideration to be paid to the Acquiror in the
proposed sale was in cash, or, if the proposed sale consideration included debt
or equity securities, the consideration paid by the purchasing member of the
Group shall include debt or equity securities of comparable quality to that
offered to the Acquiror in the proposed sale.
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(b) In the event of the failure of any member of the Group to
send such legally binding obligation within said twenty business day period, or
to settle within said one-hundred twenty business day period due to the failure
of any member of the Group to obtain all necessary Regulatory Approvals or
otherwise, the Acquiror shall have the right (without prejudice to its other
rights and remedies against the purchasing member of the Group arising from the
breach) to sell such securities in accordance with the terms and conditions and
to the proposed buyer or buyers described in the Acquiror's Notice, provided
such sale is consummated within a period of twelve months after the date of the
Acquiror's Notice to the Bank. The buyer or buyers of such securities from the
Acquiror, who acquire such securities in accordance with the provisions of this
Section 4, shall be free from any restriction or covenants whatsoever set forth
in this Agreement. Unless the Bank in good faith determines consistent with its
fiduciary duties that it must oppose such proposed sale, the Bank shall not
oppose the acquisition by the buyer or buyers before any- regulatory agencies
and will cooperate with the buyer or buyers in obtaining all Regulatory
Approvals. If such shares sold by the Acquiror do not represent the Acquiror's
entire beneficial ownership of shares of Preferred Stock and Warrants, the
covenants contained in this Agreement shall continue to be in full force and
effect with respect to the remaining shares of Preferred Stock and Warrants
beneficially owned by the Bank.
(c) The Acquiror shall have the right to transfer (by sale,
dividend or other means of disposition) the shares of Preferred Stock and
Warrants which it owns to subsidiaries, provided that prior to any such transfer
the transferee agrees to be legally bound by the provisions of this Agreement.
The Acquiror may pledge the shares of Preferred Stock and Warrants, provided
that any foreclosure sale by the pledgee shall comply with this Agreement.
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(d) The Acquiror shall not be permitted to sell or otherwise
transfer the shares of Preferred Stock and Warrants except as provided in this
Section 9 hereof. Each certificate which represents Preferred Stock and/or
Warrants shall bear a legend to reflect the restrictions set forth in this
Section 9 hereof.
10. Specific Enforcement. The parties hereto acknowledge that
each would be irreparably damaged in the event that any of the provisions of
this Agreement are not performed by the other in accordance with their specific
terms or are otherwise breached. Accordingly, each party shall be entitled to an
injunction ox injunctions to prevent breaches of this Agreement by the other and
to specifically enforce this Agreement and the terms and provisions thereof
against the other in any action instituted in the United States District Court
for the Eastern District of Pennsylvania or the Pennsylvania Court of Common
Pleas, Philadelphia in addition to any other remedy to which such aggrieved
party may be entitled at law or in equity. The Bank and the Acquiror each
consents to personal jurisdiction in any such action brought in the United
States District Court for the Eastern District of Pennsylvania and the
Pennsylvania Court of Common Pleas, Philadelphia and to service of process upon
it in the manner set forth in Section 14 hereof.
11. Interpretation and Survival of Representations, Warranties and
Covenants.
(a) Notwithstanding any right of either party to fully
investigate the affairs of the other and notwithstanding any knowledge of facts
determined or determinable by either party pursuant to such investigation or
right of investigation, each party has the right to rely fully on the
representations, warranties and covenants of the other contained in this
Agreement or in any document delivered to either party by the other party or any
of its representatives in connection with the transactions contemplated by this
Agreement. Each warranty, representation and covenant contained in this
Agreement is independent of all other warranties, representations, and
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covenants
contained herein (whether or not covering identical or related subject matter)
and must be independently and separately complied with and satisfied.
(b) The respective representations, warranties and covenants
of the parties in this Agreement shall survive the Closing Date.
12. Termination.
This Agreement may be terminated at any time prior to the
Closing Date for the reasons and by the methods set forth below:
(a) By mutual written consents of the parties authorized by
their respective Boards of Directors;
(b) By written notice from one party to the other party, if
the Closing Date shall not have occurred by June 30, 1988.
13. Registration Rights.
(a) Demand Registration Rights. The parties hereto acknowledge
that the Bank shall have no obligation to comply with the provisions of this
Section 13(a) if, in the written opinion of counsel to the Bank reasonably
acceptable to the Acquiror or a subsequent holder thereof from whom such written
request has been received, preparation of an offering circular or registration
under the Act is not required for the transfer of the Preferred Stock, Warrants
and/or shares of Common Stock issuable upon the exercise of the Warrants in the
manner proposed by the Acquiror or that a post-effective amendment to an
existing registration statement would be legally sufficient for such transfer
(in which latter event the Bank shall promptly file such post-effective
amendment and use its best efforts to cause such amendment to become effective
under the Act).
Provided that the foregoing shall not be the case, the Bank
covenants and agrees with the Acquiror and any subsequent holders of the
Preferred Stock, Warrants and/or shares of
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Common Stock issuable upon the exercise of the Warrants that within sixty days
after receipt of a written request from the Acquiror or from holders of more
than 50% in interest of the aggregate number of shares of Preferred Stock,
Warrants and/or shares of Common Stock issuable upon the exercise of the Warrant
that the Acquiror or such holders of the Preferred Stock, Warrants and/or shares
of Common Stock issuable upon the exercise of the Warrant desire and intend to
transfer more than 50% in interest of the aggregate number of shares of
Preferred Stock, Warrants and/or shares of Common Stock issuable upon the
exercise of the Warrants under such circumstances that a public offering, within
the meaning of the Act, will be involved, the Bank shall prepare and deliver to
the Pennsylvania Department of Banking (the "Department") an offering circular
or file a registration statement with the Securities and Exchange Commission
(the "SEC") or other appropriate authority, whichever shall be appropriate, (and
use its best efforts to cause such offering circular to be declared acceptable
by the Department or such registration statement to become effective under the
Act, as the case may be) with respect to the offering and sale or other
disposition of the Preferred Stock, Warrants and/or shares of Common Stock
issuable upon exercise of the Warrants.
The Bank may defer the delivery of an offering circular or the
filing of a registration statement for up to sixty days after the request for
offering or registration is made if the Board of Directors determines in good
faith that such offering circular or registration or post-effective amendment,
as the case may be, would adversely affect or otherwise interfere with a
proposed or pending transaction by the Bank, including without limitation a
material financing or a corporate reorganization, or during any period of time
in which the Bank is in possession of material inside information concerning the
Bank or its securities, which information the Bank determines in good faith is
not ripe for disclosure.
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The Bank shall not be required to comply with more than one
request for preparation of an offering circular or registration statement, as
the case may be, pursuant to this Section 13(a); provided, however, that the
Bank covenants and agrees with the Acquiror and any subsequent holders of the
Preferred Stock, Warrants and/or shares of Common Stock issuable upon exercise
of the Warrants that in the event not all of the shares of Preferred Stock,
Warrants and/or shares of Common Stock issuable upon exercise of the Warrants
are included in an offering circular or registration statement, whichever shall
be appropriate, the Bank shall cooperate with the Acquiror and said holders in
the preparation of an offering circular or registration statement, whichever
shall be appropriate, and the Acquiror and said holders shall bear all
out-of-pocket expenses incurred in connection therewith (including all
reasonable legal and accounting expenses incurred by the Bank with respect to
such additional registration rights).
(b) Piggy-back Registration Rights. The Bank covenants and agrees
with the Acquiror and any subsequent holders of the Preferred Stock, Warrants
and/or shares of Common Stock issuable upon exercise of the Warrants that in the
event the Bank proposes to prepare and deliver an offering circular or file a
registration statement under the Act, as the case may be, with respect to any
class of security, including any securities to be sold by its stockholders,
(other than in connection with an exchange offer or a registration statement on
Form S-8 or other unsuitable registration statement form) which becomes or which
the Bank believes will become effective at any time, then the Bank shall in each
case give written notice of such proposed delivery or filing, as the case may
be, to the Acquiror or the holders of the Preferred Stock, Warrants and shares
of Common Stock issuable upon exercise of the Warrants at least 30 days before
the proposed delivery date or filing date, as the case may be, and such notice
shall offer to the Acquiror or the holders the opportunity to include in such
offering circular or registration statement, as the case
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may be, such Preferred Stock, Warrants and/or shares of Common Stock issuable
upon exercise of the Warrants as they may request, unless, in the opinion of
counsel to the Bank reasonably acceptable to the Acquiror or the holders of
Preferred Stock, Warrants or shares of Common Stock issuable upon exercise of
the Warrants who wishes to have Preferred Stock, Warrants or shares of Common
Stock issuable upon exercise of the Warrants included in such registration
statement, registration under the Act is not required for the transfer of such
Preferred Stock, Warrants and/or shares of Common Stock issuable upon exercise
of the Warrants in the manner proposed by the Acquiror or such holders. The Bank
shall permit, or shall cause the managing underwriter of a proposed offering to
permit the Acquiror or the holders of Preferred Stock, Warrants and/or shares of
Common Stock issuable upon exercise of the Warrants requested to be included in
the offering circular or registration statement, as the case may be,
(collectively hereinafter referred to as the "Piggy-back Shares") to include
such Piggy-back Shares in the proposed offering on the same terms and conditions
as applicable to securities of the Bank, if any, included therein for the
account of any person other than the Bank and the holders of Piggy-back Shares.
Notwithstanding the foregoing, if any such managing underwriter shall advise the
Bank in writing that it believes that the distribution of all or a portion of
the Piggy-back Shares requested to be included in the offering circular or
registration statement, as the case may be, concurrently with the securities
being offered thereby would materially adversely affect the distribution of such
securities by the Bank for its own account, then the holders of such Piggy-back
Shares shall delay their offering and sale of Piggy-back Shares (or the portion
thereof so designated by such managing underwriter) for such period, not to
exceed ninety days as the managing underwriter shall request provided that no
such delay shall be required as to Piggy-back Shares if any securities of the
Bank are included in such offering circular or registration
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statement, as the case may be, for the account of any person other than the Bank
and the holders of Piggy-back Shares. In the event of such delay, the Bank shall
deliver or file such supplements, post-effective amendments or separate offering
circular or registration statement, and take any such other steps as may be
necessary to permit such holders to make their proposed offering and sale for a
period of 90 days immediately following the end of such period of delay
("Piggy-back Termination Date"); provided, however, that if at the Piggy-back
Termination Date the Piggy-back Shares are covered by an offering circular or a
registration statement, as the case may be, which is, or is required to remain,
in effect beyond the Piggy-back Termination Date, the Bank shall maintain in
effect the offering circular or registration statement, as the case may be, as
it relates to the Piggy-back Shares for so long as such offering circular or
registration statement remains or is required to remain in effect for any of
such other securities.
(c) In connection with the offer pursuant to an offering
circular or registration of Preferred Stock, Warrants and/or shares of Common
Stock issuable upon exercise of the Warrants in accordance with Sections 13(a)
or 13(b) above, the Bank agrees to:
(i) Use its best efforts to register or qualify the
Preferred Stock, Warrants and/or shares of Common Stock issuable upon exercise
of the Warrants for offer or sale under the state securities or Blue Sky laws of
such states which the holders of such Preferred Stock, Warrants and/or shares of
Common Stock issuable upon exercise of the Warrants shall designate until the
dates specified in Sections 13(a) and 13(b) above in connection with offering
such Preferred Stock, Warrants and/or shares of Common Stock issuable upon
exercise of the Warrants pursuant to an offering circular or registration under
the Act as the case may be.
(ii) Pay all expenses in connection with the offering of
the Preferred Stock, Warrants and/or shares of Common Stock issuable upon
exercise of the Warrants under
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the Act, or otherwise pursuant to an exemption, and compliance with the
provisions of clause (i) above, except that underwriting commissions and
expenses attributable to the Preferred Stock, Warrants and/or shares of Common
Stock issuable upon exercise of the Warrants and fees and disbursements of
counsel (if any) to the holders requesting that such Preferred Stock, Warrants
and/or shares of Common Stock issuable upon exercise of the Warrants be
registered shall be borne by such holders and except as otherwise provided in
Section 13(a) with respect to the preparation of a second offering circular or
registration statement.
(iii) In the event of any offering with respect to any
Preferred Stock, Warrant and/or shares of Common Stock issuable upon exercise of
the Warrants pursuant to Section 13(a) or (b) above, the Bank will indemnify and
hold harmless any holder whose Preferred Stock, Warrants and/or shares of Common
Stock issuable upon exercise of the Warrants are being so offered and each
person, if any, who controls such holder, within the meaning of the Act, against
any losses, claims, damages or liabilities, joint or several, to which such
holder or such controlling person may be subject, under the Act or otherwise,
insofar as such losses, claims, damages, or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained, on the effective date thereof, in any
such offering circular, preliminary offering circular, or any amendment or
supplement thereto, or any such registration statement, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereto, as the case may be, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading; and will reimburse
each such holder and each such controlling person for any legal or other
expenses reasonably incurred by such holder or such controlling person in
connection
18
with the investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Bank will not be liable in such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any untrue statement or alleged untrue statement or omission or alleged
omission made in said offering circular or registration statement, said
preliminary offering circular or preliminary prospectus, or said prospectus, or
said prospectus, or any said amendment or supplement thereto, in reliance upon
and in conformity with written information furnished by such holder specifically
for use in the preparation thereof.
The Bank further agrees that if the foregoing provisions may
be held to be unenforceable, any such holder or controlling person of such
holder may recover contribution from the Bank in an amount which when added to
such contribution as the holder or controlling person has theretofore received
or concurrently receives from officers and directors of the Bank or controlling
persons of the Bank, will reimburse the holder or controlling person of the
holder for all of such losses, claims, damages or liabilities and such legal or
other expenses; provided, however, that if the full amount of the contribution
specified in this subparagraph may not be permitted by law, then the holder or
controlling person of the holder shall be entitled to contribution from the Bank
and its officers, directors and controlling persons to the full extent permitted
by law.
14. Miscellaneous.
(a) If any term or provision of this Agreement is held by a
court of competent jurisdiction or other authority to be invalid, void,
unenforceable or against its regulatory policy, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated.
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(b) Whether the transactions contemplated by this Agreement
are consummated or not, each party shall pay all of its own expenses incurred in
connection with this Agreement except all filing fees incurred in connection
with obtaining Regulatory Approvals shall be born solely by the Bank.
(c) This Agreement shall be binding upon and shall inure to
the benefit of and be enforceable by the successors and permitted assigns of the
parties hereto. Except as otherwise provided herein, this Agreement shall not be
assignable except by operation of law.
(d) This Agreement may not be modified, amended, altered or
supplemented except by a written agreement signed by the Bank and the Acquiror
which shall be authorized by all necessary corporate action of each party. Each
party may waive any condition to the obligations of such party hereunder.
(e) All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given if so given upon receipt) by hand delivery or by
mail (registered or certified mail, postage prepaid, return receipt requested)
as follows:
If to the Bank:
Commerce Bank/Harrisburg
Xxxxxx Road and Senate Avenue
East Pennsboro Township
Camp Hill, PA 17011
Attention: President
If to the Acquiror:
Commerce Bancorp, Inc.
0000 Xxxxx 00 Xxxx
Xxxxxx Xxxx, XX 00000
Attention: President
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or to such other address as any party may have furnished to the other in writing
in accordance herewith.
(f) This Agreement contains the entire understanding of the
parties with respect to its subject matter. There are no restrictions,
agreements, promises, warranties, covenants or undertakings other than those
expressly set forth herein with respect to the subject matter hereof. This
Agreement supersedes any and all prior agreements and understandings between the
parties with respect to its subject matter.
(g) No failure or delay on the part of either party in the
exercise of any power, right or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any power, right or
privilege preclude any other or further exercise thereof or of any other right,
power or privilege. All rights and remedies existing under this Agreement are
cumulative to, and not exclusive of, any rights or remedies otherwise available.
(h) This Agreement shall be governed by and construed in
accordance with the substantive law of the Commonwealth of Pennsylvania without
giving effect to the principles of conflict of laws.
(i) This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
(j) Anything in this Agreement and/or the Warrant Agreement to
the contrary notwithstanding, and subject to the receipt of all necessary
Regulatory Approvals, the Acquiror hereby consents to the formation by the Bank
of a one-bank holding company for the Bank whereby all of the shareholders of
the Bank would become shareholders of the one-bank holding company and agrees
that the formation of such one-bank holding
21
company will not be deemed a "change in control" of the Bank within the meaning
of Section 5B of the Warrant Agreement.
IN WITNESS WHEREOF, Commerce Bank/Harrisburg and Commerce Bancorp, Inc.
have caused this Agreement to be duly executed as of the day and year first
above written.
COMMERCE BANK/HARRISBURG
By:
---------------------------------
Attest:
-----------------------------
COMMERCE BANCORP, INC.
By:
---------------------------------
Attest:
-----------------------------
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