================================================================
AGREEMENT AND PLAN OF MERGER
DATED AS OF MAY 3, 2000
BY AND BETWEEN
PROVIDENT BANKSHARES CORPORATION
AND
HARBOR FEDERAL BANCORP, INC.
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TABLE OF CONTENTS
Page No.
Introductory Statement . . . . . . . . . . . . . . . . . . . 4
ARTICLE I - The Merger . . . . . . . . . . . . . . . . . . . 4
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Section 1.1. Structure of the Merger. . . . . . . . . 4
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Section 1.2. Effect on Outstanding Shares of Harbor
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Common Stock . . . . . . . . . . . . . . 5
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Section 1.3. Exchange Procedures. . . . . . . . . . . 5
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Section 1.4. Effect on Outstanding Shares of
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Provident Common Stock . . . . . . . . . 8
----------------------
Section 1.5. Directors and Officers of Provident
-----------------------------------
after Effective Time . . . . . . . . . . 8
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Section 1.6. Articles of Incorporation and Bylaws
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of Provident after Effective Time. . . . 8
---------------------------------
Section 1.7. Harbor Stock Options . . . . . . . . . . 8
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Section 1.8 Bank Merger. . . . . . . . . . . . . . . 9
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Section 1.9. Alternative Structure. . . . . . . . . . 9
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ARTICLE II - Representations and Warranties. . . . . . . . . 9
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Section 2.1. Representations and Warranties of
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Harbor . . . . . . . . . . . . . . . . . 9
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Section 2.2. Representations and Warranties of
---------------------------------
Provident. . . . . . . . . . . . . . . . 26
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ARTICLE III - Conduct Pending the Merger . . . . . . . . . . 35
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Section 3.1. Conduct of Harbor's Business Prior to
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the Effective Time . . . . . . . . . . . 35
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Section 3.2. Forbearance by Harbor. . . . . . . . . . 35
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Section 3.3. Conduct of Provident's Business Prior
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to the Effective Time. . . . . . . . . . 38
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Section 3.4. Forbearance by Provident . . . . . . . . 39
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ARTICLE IV - Covenants . . . . . . . . . . . . . . . . . . . 39
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Section 4.1. Acquisition Proposals. . . . . . . . . . 39
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Section 4.2. Certain Policies and Actions of Harbor . 40
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Section 4.3. Access and Information . . . . . . . . . 41
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Section 4.4. Applications; Consents . . . . . . . . . 42
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Section 4.5. Antitakeover Provisions. . . . . . . . . 43
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Section 4.6. Additional Agreements. . . . . . . . . . 43
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Section 4.7. Publicity. . . . . . . . . . . . . . . . 43
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Section 4.8. Stockholder Meeting. . . . . . . . . . . 43
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Section 4.9. Registration of Provident Common Stock . 44
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Section 4.10. Affiliate Letters. . . . . . . . . . . . 45
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Section 4.11. Notification of Certain Matters. . . . . 45
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Section 4.12. Employees, Directors and Officers. . . . 45
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Section 4.13. Indemnification. . . . . . . . . . . . . 46
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Section 4.14. Dividends. . . . . . . . . . . . . . . . 48
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Section 4.15. Section 16 Matters . . . . . . . . . . . 48
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2
ARTICLE V - Conditions to Consummation . . . . . . . . . . . 48
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Section 5.1. Conditions to Each Party's Obligations . 48
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Section 5.2. Conditions to the Obligations of
--------------------------------
Provident. . . . . . . . . . . . . . . . 50
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Section 5.3. Conditions to the Obligations of Harbor. 51
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ARTICLE VI - Termination . . . . . . . . . . . . . . . . . . 52
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Section 6.1. Termination. . . . . . . . . . . . . . . 52
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Section 6.2. Termination Fee. . . . . . . . . . . . . 54
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Section 6.3. Effect of Termination. . . . . . . . . . 55
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ARTICLE VII - Closing, Effective Date and Effective Time . . 55
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Section 7.1. Effective Date and Effective Time. . . . 55
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Section 7.2. Deliveries at the Closing. . . . . . . . 55
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ARTICLE VIII - Certain Other Matters . . . . . . . . . . . . 55
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Section 8.1. Certain Definitions; Interpretation. . . 55
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Section 8.2. Survival . . . . . . . . . . . . . . . . 58
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Section 8.3. Waiver; Amendment. . . . . . . . . . . . 58
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Section 8.4. Counterparts . . . . . . . . . . . . . . 58
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Section 8.5. Governing Law. . . . . . . . . . . . . . 58
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Section 8.6. Expenses . . . . . . . . . . . . . . . . 58
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Section 8.7. Notices. . . . . . . . . . . . . . . . . 59
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Section 8.8. Entire Agreement; etc. . . . . . . . . . 60
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Section 8.9. Successors and Assigns; Assignment . . . 60
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EXHIBITS
Exhibit A Bank Merger Agreement
Exhibit B Form of Affiliate Letter
3
AGREEMENT AND PLAN OF MERGER
----------------------------
This is an AGREEMENT AND PLAN OF MERGER, dated as of
the 3rd day of May, 2000 ("AGREEMENT"), by and between
Provident Bankshares Corporation, a Maryland corporation
("PROVIDENT"), and Harbor Federal Bancorp, Inc., a Maryland
corporation ("HARBOR").
INTRODUCTORY STATEMENT
----------------------
The Board of Directors of each of Provident and
Harbor (i) has determined that this Agreement and the business
combination and related transactions contemplated hereby are
advisable and in the best interests of Provident and Harbor,
respectively, and in the best long-term interests of their
respective stockholders and (ii) has determined that this
Agreement and the transactions contemplated hereby are
consistent with, and in furtherance of, its respective business
strategies.
The parties hereto intend that the Merger as defined
herein shall qualify as a reorganization under the provisions of
Section 368(a) of the IRC (as defined in Section 8.1) for
federal income tax purposes, and that the Merger shall be
accounted for as a purchase transaction for accounting purposes.
Provident and Harbor desire to make certain
representations, warranties and agreements in connection with
the business combination and related transactions provided for
herein and to prescribe various conditions to such transactions.
As a condition and inducement to Provident's
willingness to enter into this Agreement, each member of the
Board of Directors of Harbor has entered into an agreement
pursuant to which he (or she) will vote his (or her) shares of
Harbor Common Stock in favor of this Agreement and the
transactions contemplated hereby.
In consideration of their mutual promises and
obligations hereunder, the parties hereto adopt and make this
Agreement and prescribe the terms and conditions hereof and the
manner and basis of carrying it into effect, which shall be as
follows:
ARTICLE I
THE MERGER
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Section 1.1. Structure of the Merger. On the
-----------------------
Effective Date (as defined in Section 7.1), Harbor will merge
with and into Provident ("MERGER") pursuant to the provisions
of, and with the effect provided for in, Maryland General
Corporate Law ("MGCL"). Upon consummation of the Merger, the
separate corporate existence of Harbor shall cease. Provident
shall be the surviving corporation (hereinafter sometimes
referred to in such capacity as the "SURVIVING CORPORATION") in
the Merger and shall continue to be governed by the MGCL and its
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name and separate corporate existence, with all of its rights,
privileges, immunities, powers and franchises, shall continue
unaffected by the Merger. From and after the Effective Time (as
defined in Section 7.1), Provident shall possess all of the
properties and rights and be subject to all of the liabilities
and obligations of Harbor, all as more fully described in the
MGCL.
Section 1.2. Effect on Outstanding Shares of
-------------------------------
Harbor Common Stock.
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(a) By virtue of the Merger, automatically and
without any action on the part of the holder thereof, each share
of Harbor Common Stock (as defined in Section 8.1) issued and
outstanding at the Effective Time, other than Excluded Shares
(as defined in Section 8.1), shall be converted into the right
to receive 1.256 shares (the "EXCHANGE RATIO") of Provident's
common stock, par value $1.00 per share ("PROVIDENT COMMON
STOCK"); provided, however, that, notwithstanding any other
provision of this Agreement, no fraction of a share of Provident
Common Stock and no certificates or scrip therefor will be
issued in the Merger; instead, Provident shall pay to each
holder of Harbor Common Stock who would otherwise be entitled to
a fraction of a share of Provident Common Stock an amount in
cash, rounded to the nearest cent, determined by multiplying
such fraction by the average of the daily closing sales prices
of a share of Provident Common Stock (and if there is no closing
sales price on any such day, then the mean between the closing
bid and the closing asked prices on that day), as reported on
the Nasdaq Stock Market ("NASDAQ"), for the 15 consecutive
trading days immediately preceding the Effective Date. The
shares of Provident Common Stock and any cash for fractional
shares are collectively referred to in this Agreement as the
"MERGER CONSIDERATION."
(b) If, between the date of this Agreement and the
Effective Time (and as permitted by Section 3.2), the
outstanding shares of Provident Common Stock or the outstanding
shares of Harbor Common Stock shall have been changed into a
different number of shares or into a different class by reason
of any stock dividend, subdivision, reclassification,
recapitalization, split, combination or exchange of shares (each
a "STOCK ADJUSTMENT"), the Exchange Ratio shall be adjusted
correspondingly to provide the holders of Harbor Common Stock
the same economic effect as contemplated by this Agreement prior
to such event.
(c) As of the Effective Time, each Excluded Share
shall be canceled and retired and shall cease to exist, and no
exchange or payment shall be made with respect thereto. All
shares of Provident Common Stock that are held by Harbor, if
any, other than shares held in a fiduciary capacity or in
satisfaction of a debt previously contracted, shall be canceled
and shall constitute authorized but unissued shares.
Section 1.3. Exchange Procedures.
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(a) Appropriate transmittal materials ("LETTER OF
TRANSMITTAL") in a form satisfactory to Provident and Harbor
shall be mailed as soon as practicable (but in no event later
than five business days) after the Effective Time to each holder
of record of Harbor Common Stock as of the Effective Time. A
Letter of Transmittal will be deemed properly completed only
5
if accompanied by certificates representing all shares of Harbor
Common Stock to be converted thereby.
(b) At and after the Effective Time, each
certificate previously representing shares of Harbor Common
Stock ("CERTIFICATE") (except as specifically set forth in
Section 1.2) shall represent only the right to receive the
Merger Consideration.
(c) Prior to the Effective Time, Provident shall
deposit, or shall cause to be deposited, with the Exchange
Agent, for the benefit of the holders of shares of Harbor Common
Stock, for exchange in accordance with this Section 1.3, an
estimated amount of cash sufficient to pay the aggregate amount
of cash in lieu of fractional shares to be paid pursuant to
Section 1.2, and Provident shall reserve for issuance with its
transfer agent and registrar a sufficient number of shares of
Provident Common Stock to provide for payment of the Merger
Consideration.
(d) The Letter of Transmittal shall (i) 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, (ii) be in a form and
contain any other provisions as Provident may reasonably
determine and (iii) include instructions for use in effecting
the surrender of the Certificates in exchange for the Merger
Consideration. Upon the proper surrender of the Certificates to
the Exchange Agent, together with a properly completed and duly
executed Letter of Transmittal, the holder of such Certificates
shall be entitled to receive in exchange therefor a certificate
representing that number of whole shares of Provident Common
Stock that such holder has the right to receive pursuant to
Section 1.2, if any, and a check in the amount equal to the cash
in lieu of fractional shares, if any, that such holder has the
right to receive pursuant to Section 1.2 plus any dividends or
other distributions to which such holder is entitled pursuant to
this Section 1.3. Certificates so surrendered shall forthwith
be canceled. As soon as practicable following receipt of the
properly completed Letter of Transmittal and any necessary
accompanying documentation, the Exchange Agent shall distribute
Provident Common Stock and cash as provided herein. The
Exchange Agent shall not be entitled to vote or exercise any
rights of ownership with respect to the shares of Provident
Common Stock held by it from time to time hereunder, except that
it shall receive and hold all dividends or other distributions
paid or distributed with respect to such shares for the account
of the persons entitled thereto. If there is a transfer of
ownership of any shares of Harbor Common Stock not registered in
the transfer records of Harbor, the Merger Consideration shall
be issued to the transferee thereof if the Certificates
representing such Harbor Common Stock are presented to the
Exchange Agent, accompanied by all documents required, in the
reasonable judgment of Provident and the Exchange Agent, to
evidence and effect such transfer and to evidence that any
applicable stock transfer taxes have been paid.
(e) No dividends or other distributions declared
or made after the Effective Time with respect to Provident
Common Stock shall be remitted to any person entitled to receive
shares of Provident Common Stock hereunder until such person
surrenders his or her Certificates in accordance with this
Section 1.3. Upon the surrender of such person's Certificates,
such person shall be entitled to receive any dividends or other
distributions, without interest thereon,
6
which theretofore had become payable with respect to shares of
Provident Common Stock represented by such person's
Certificates.
(f) The stock transfer books of Harbor shall be
closed immediately upon the Effective Time and from and after
the Effective Time there shall be no transfers on the stock
transfer records of Harbor of any shares of Harbor Common Stock.
If, after the Effective Time, Certificates are presented to
Provident, they shall be canceled and exchanged for the Merger
Consideration deliverable in respect thereof pursuant to this
Agreement in accordance with the procedures set forth in this
Section 1.3.
(g) Any portion of the aggregate amount of cash to
be paid pursuant to Section 1.2, any dividends or other
distributions to be paid pursuant to this Section 1.3 or any
proceeds from any investments thereof that remains unclaimed by
the stockholders of Harbor for twelve months after the Effective
Time shall be repaid by the Exchange Agent to Provident upon the
written request of Provident. After such request is made, any
stockholders of Harbor who have not theretofore complied with
this Section 1.3 shall look only to Provident for the Merger
Consideration deliverable in respect of each share of Harbor
Common Stock such stockholder holds, as determined pursuant to
Section 1.2 of this Agreement, without any interest thereon. If
outstanding Certificates are not surrendered prior to the date
on which such payments would otherwise escheat to or become the
property of any governmental unit or agency, the unclaimed items
shall, to the extent permitted by any abandoned property,
escheat or other applicable laws, become the property of
Provident (and, to the extent not in its possession, shall be
paid over to it), free and clear of all claims or interest of
any person previously entitled to such claims. Notwithstanding
the foregoing, neither the Exchange Agent nor any party to this
Agreement (or any affiliate thereof) shall be liable to any
former holder of Harbor Common Stock for any amount delivered to
a public official pursuant to applicable abandoned property,
escheat or similar laws.
(h) Provident and the Exchange Agent shall be
entitled to rely upon Harbor's stock transfer books to establish
the identity of those persons entitled to receive the Merger
Consideration, which books shall be conclusive with respect
thereto. In the event of a dispute with respect to ownership of
stock represented by any Certificate, Provident and the Exchange
Agent shall be entitled to deposit any Merger Consideration
represented thereby in escrow with an independent third party
and thereafter be relieved with respect to any claims thereto.
(i) If 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 the Exchange Agent, the posting
by such person of a bond in such amount as the Exchange Agent
may 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 pursuant to Section 1.2.
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Section 1.4. Effect on Outstanding Shares of
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Provident Common Stock. At and after the Effective Time, each
- ----------------------
share of Provident Common Stock issued and outstanding
immediately prior to the Effective Time shall remain an issued
and outstanding share of common stock of the Surviving
Corporation and shall not be affected by the Merger.
Section 1.5. Directors and Officers of
-------------------------
Provident after Effective Time. From and after the Effective
- ------------------------------
Time, the directors and officers of the Surviving Corporation
shall consist of the directors and officers of Provident serving
immediately prior to the Effective Time until their respective
successors are duly elected or appointed and qualified.
Section 1.6. Articles of Incorporation and
-----------------------------
Bylaws of Provident after Effective Time. The articles of
- ----------------------------------------
incorporation and bylaws of Provident in effect immediately
prior to the Effective Time shall be the articles of
incorporation and bylaws of the Surviving Corporation until
thereafter amended in accordance with applicable law.
Section 1.7. Harbor Stock Options.
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(a) Each option to purchase shares of Harbor
Common Stock issued by Harbor and outstanding at the Effective
Time (a "HARBOR OPTION") pursuant to the Harbor 1995 Stock
Option and Incentive Plan (the "HARBOR OPTION PLAN") shall be
converted into an option to purchase shares of Provident Common
Stock as follows:
(i) The aggregate number of shares of
Provident Common Stock issuable upon the exercise of the
converted Harbor Option after the Effective Time shall be equal
to the product of the Exchange Ratio multiplied by the number of
shares of Harbor Common Stock issuable upon exercise of the
Harbor Option immediately prior to the Effective Time, such
product to be rounded to the nearest whole share of Provident
Common Stock; and
(ii) the exercise price per share of each
converted Harbor Option shall be equal to the quotient of the
exercise price of such Harbor Option immediately prior to the
Effective Time divided by the Exchange Ratio, such quotient to
be rounded to the nearest whole cent;
provided, however, that, in the case of any Harbor Option that
is intended to qualify as an incentive stock option under
Section 422 of the IRC, the number of shares of Provident Common
Stock issuable upon exercise of and the exercise price per share
for such converted Harbor Option determined in the manner
provided above shall be further adjusted in such manner as
Provident may determine to be necessary to conform to the
requirements of Section 424(b) of the IRC. Options to purchase
shares of Provident Common Stock that arise from the operation
of this Section 1.7 shall be referred to as the "CONVERTED
OPTIONS." All Converted Options shall be exercisable for the
same period and shall otherwise have the same terms and
conditions applicable to the Harbor Options that they replace.
Prior to the Effective Time, Provident shall take, or cause to
be taken, all necessary action to effect the intent of the
provisions set forth in this Section 1.7.
8
(b) Concurrently with the reservation of shares of
Provident Common Stock to provide for the payment of the Merger
Consideration, Provident shall take all corporate action
necessary to reserve for future issuance a sufficient additional
number of shares of Provident Common Stock to provide for the
satisfaction of its obligations with respect to the Converted
Options. Within 15 business days after the Effective Time,
Provident shall file a registration statement on Form S-8 (or
any successor or other appropriate form) and make any state
filings or obtain state exemptions with respect to the Provident
Common Stock issuable upon exercise of the Converted Options.
Section 1.8. Bank Merger.
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Concurrently with or as soon as practicable after
the execution and delivery of this Agreement, Provident Bank of
Maryland ("PROVIDENT BANK"), a wholly owned subsidiary of
Provident, and Harbor Federal Savings Bank ("HARBOR FEDERAL"), a
wholly owned subsidiary of Harbor, shall enter into the Plan of
Bank Merger, in the form attached hereto as Exhibit A, pursuant
to which Harbor Federal will merge with and into Provident Bank
(the "BANK MERGER"). The parties intend that the Bank Merger
will become effective on the Effective Date. The Plan of Bank
Merger shall provide that the directors of Provident Bank as the
surviving entity of the Bank Merger shall be all of the
directors of Provident Bank serving immediately prior to the
Bank Merger until their respective successors are duly elected
or appointed and qualified.
Section 1.9. Alternative Structure. Notwithstanding
---------------------
anything to the contrary contained in this Agreement, prior to
the Effective Time, Provident may specify that the structure of
the transactions contemplated by this Agreement be revised and
the parties shall enter into such alternative transactions as
Provident may determine to effect the purposes of this
Agreement; provided, however, that such revised structure shall
not (i) alter or change the amount or kind of the Merger
Consideration, (ii) change the intended federal income tax
consequences of the transactions contemplated by this Agreement,
or (iii) materially impede or delay the receipt of any
regulatory approval referred to in, or the consummation of the
transactions contemplated by, this Agreement. This Agreement
and any related documents shall be appropriately amended in
order to reflect any such revised structure.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
------------------------------
Section 2.1. Representations and Warranties of
---------------------------------
Harbor.
- ------
Except as set forth in the Disclosure Letter delivered by
Harbor to Provident prior to the execution of this Agreement,
Harbor represents and warrants to Provident that:
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(a) Organization.
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(i) Harbor is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Maryland and is registered as a savings and loan
holding company.
(ii) Harbor Federal is a federally chartered
savings bank duly organized and validly existing under the laws
of the United States of America. The deposits of Harbor Federal
are insured by the Savings Association Insurance Fund of the
FDIC (as defined in Section 8.1) to the extent provided in the
FDIA (as defined in Section 8.1).
(iii) Harbor and Harbor Federal each has all
requisite corporate power and authority to own, lease and
operate its properties and to conduct the business currently
being conducted by it. Harbor and Harbor Federal are each duly
qualified or licensed as a foreign corporation to transact
business and are in good standing in each jurisdiction in which
the character of the properties owned or leased by it or the
nature of the business conducted by it makes such qualification
or licensing necessary, except where the failure to be so
qualified or licensed and in good standing would not have a
Material Adverse Effect (as defined in Section 8.1) on Harbor.
(b) Subsidiaries.
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(i) Harbor's Disclosure Letter sets forth
(A) the name, percentage ownership and number of shares of stock
owned or controlled by Harbor of each Subsidiary (as defined in
Section 8.1); and (B) the jurisdiction of incorporation,
capitalization and ownership of each Subsidiary. All such
Subsidiaries and ownership interests are in compliance with all
applicable laws, rules and regulations relating to investments
in equity ownership interests by savings and loan holding
companies or federally chartered savings associations.
(ii) Harbor owns of record and beneficially
all the capital stock of each of its Subsidiaries free and clear
of any claims, liens, encumbrances or restrictions and there are
no agreements or understandings with respect to the voting or
disposition of any such shares. The outstanding shares of
capital stock of each Subsidiary have been validly authorized
and are validly issued, fully paid and nonassessable. Each of
Harbor's Subsidiaries is a corporation duly organized and
validly existing under the laws of its jurisdiction of
incorporation, has all requisite corporate power and authority
to own, lease and operate its properties and to conduct the
business currently being conducted by it and is duly qualified
or licensed as a foreign corporation to transact business and is
in good standing in each jurisdiction in which the character of
the properties owned or leased by it or the nature of the
business conducted by it makes such qualification or licensing
necessary, except where the failure to be so qualified or
licensed and in good standing would not have a Material Adverse
Effect on Harbor.
(iii) None of Harbor's Subsidiaries holds
shares of its capital stock in its treasury, and there are not,
and on the Closing Date there will not be, outstanding (A) any
10
options, warrants or other rights with respect to the capital
stock of any Subsidiary, (B) any securities convertible into or
exchangeable for shares of such capital stock or any other debt
or equity security of any Subsidiary or (C) any other
commitments of any kind for the issuance of additional shares of
capital stock or other debt or equity security of any Subsidiary
or options, warrants or other rights with respect to such
securities.
(iv) No Subsidiary of Harbor other than Harbor
Federal is an "insured depository institution" as defined in the
FDIA and the applicable regulations thereunder.
(c) Capital Structure.
-----------------
(i) The authorized capital stock of Harbor
consists of:
(A) 20,000,000 shares of Harbor Common
Stock; and
(B) 5,000,000 shares of preferred
stock, par value $.01 per share.
(ii) As of the date of this Agreement:
(A) 1,664,515 shares of Harbor Common
Stock are issued and outstanding, all of which are validly
issued, fully paid and nonassessable;
(B) no shares of Harbor preferred
stock are issued and outstanding or held in Harbor's treasury;
(C) 100,153 shares of Harbor Common
Stock are reserved for issuance pursuant to outstanding Harbor
Options under the Harbor Option Plan; and
(D) no shares of Harbor Common Stock
are held by Harbor in its treasury or by its Subsidiaries.
(iii) Set forth in Harbor's Disclosure Letter
is a complete and accurate list of all outstanding Harbor
Options, including the names of the optionees, dates of grant,
exercise prices, dates of vesting, dates of termination, shares
subject to each grant and whether limited rights were granted in
connection with such options.
(iv) No bonds, debentures, notes or other
indebtedness having the right to vote on any matters on which
stockholders of Harbor may vote are issued or outstanding.
(v) Except as set forth in this Section
2.1(c) or in Harbor's Disclosure Letter, as of the date of this
Agreement, (A) no shares of capital stock or other voting
securities of Harbor are issued, reserved for issuance or
outstanding and (B) neither Harbor nor any of its Subsidiaries
has or is bound by any outstanding subscriptions, options,
warrants, calls, rights,
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convertible securities, commitments or agreements of any
character obligating Harbor or any of its Subsidiaries to issue,
deliver or sell, or cause to be issued, delivered or sold, any
additional shares of capital stock of Harbor or obligating
Harbor or any of its Subsidiaries to grant, extend or enter into
any such option, warrant, call, right, convertible security,
commitment or agreement. As of the date hereof, there are no
outstanding contractual obligations of Harbor or any of its
Subsidiaries to repurchase, redeem or otherwise acquire any
shares of capital stock of Harbor or any of its Subsidiaries.
(d) Authority.
---------
(i) Harbor has all requisite corporate power
and authority to enter into this Agreement, to perform its
obligations hereunder and to consummate the transactions
contemplated by this Agreement. The execution and delivery of
this Agreement and the consummation of the transactions
contemplated by this Agreement have been duly authorized by all
necessary corporate actions on the part of Harbor's Board of
Directors, and no other corporate proceedings on the part of
Harbor are necessary to authorize this Agreement or to
consummate the transactions contemplated by this Agreement other
than the approval and adoption of this Agreement by the
affirmative vote of the holders of two-thirds of the outstanding
shares of Harbor Common Stock. This Agreement has been duly and
validly executed and delivered by Harbor and constitutes a valid
and binding obligation of Harbor, enforceable against Harbor in
accordance with its terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights and
remedies generally and, as to enforceability, to general
principles of equity, whether applied in a court of law or a
court of equity.
(ii) Harbor Federal has all requisite
corporate power and authority to enter into the Plan of Bank
Merger and to consummate the transactions contemplated thereby.
The execution and delivery of the Plan of Bank Merger and the
consummation of the transactions contemplated thereby have been
duly authorized by the Board of Directors of Harbor Federal and
approved by Harbor as the sole stockholder of Harbor Federal.
The Plan of Bank Merger, upon execution and delivery by Harbor
Federal, will be duly and validly executed and delivered by
Harbor Federal and will constitute a valid and binding
obligation of Harbor Federal, enforceable against Harbor Federal
in accordance with its terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights and
remedies generally and, as to enforceability, to general
principles of equity, whether applied in a court of law or a
court of equity.
(e) Fairness Opinion. Harbor has received the
----------------
opinion of Trident Securities to the effect that, as of the date
hereof, the Merger Consideration to be received by Harbor's
stockholders is fair, from a financial point of view, to such
stockholders.
(f) No Violations; Consents.
-----------------------
(i) The execution, delivery and performance
of this Agreement by Harbor do not, and the consummation of the
transactions contemplated by this Agreement will not,
(A) assuming that the consents and approvals referred to in
Section 2.1(f)(ii) are obtained
12
and the applicable waiting periods have expired and the approval
of Harbor's stockholders is obtained, violate any law, rule or
regulation or any judgment, decree, order, governmental permit
or license to which Harbor or any of its Subsidiaries (or any of
their respective properties) is subject, (B) violate the
articles of incorporation or bylaws of Harbor or the similar
organizational documents of any of its Subsidiaries or (C)
constitute a breach or violation of, or a default under (or an
event which, with due notice or lapse of time or both, would
constitute a default under), or result in the termination of,
accelerate the performance required by, or result in the
creation of any lien, pledge, security interest, charge or other
encumbrance upon any of the properties or assets of Harbor or
any of its Subsidiaries under, any of the terms, conditions or
provisions of any note, bond, indenture, deed of trust, loan
agreement or other agreement, instrument or obligation to which
Harbor or any of its Subsidiaries is a party, or to which any of
their respective properties or assets may be subject, except, in
the case of (C), for any such breaches, violations or defaults
that would not, individually or in the aggregate, have a
Material Adverse Effect on Harbor.
(ii) Except for (A) the filing of an application
with the FDIC under the Bank Merger Act (as defined in Section
8.1) and approval of such application, (B) the filing of
applications or notices, as applicable, with the Federal Reserve
Board and the OTS (as defined in Section 8.1) and approval of
such applications and/or lack of objection to any notice, (C)
the filing of applications or notices, as applicable, with the
Commissioner of Financial Regulators of the State of Maryland
(the "COMMISSIONER") and approval of such applications or
notices, (D) the filing of articles of merger with the Maryland
Department of Assessments and Taxation (the "DEPARTMENT")
pursuant to MGCL, (E) the registration under the Securities Act
(as defined in Section 8.1) of the shares of Provident Common
Stock to be issued in exchange for shares of Harbor Common
Stock, (F) the registration or qualification of the shares of
Provident Common Stock to be issued in exchange for shares of
Harbor Common Stock under state securities or "blue sky" laws,
(G) the listing of the shares of Provident Common Stock to be
issued in exchange for shares of Harbor Common Stock on the
Nasdaq Stock Market, and (H) such filings, authorizations
or approvals as may be set forth in Harbor's Disclosure Letter,
no consents or approvals of or filings or registrations with any
Governmental Entity (as defined in Section 8.1) or with any
third party are necessary in connection with the execution and
delivery by Harbor of this Agreement or the consummation by
Harbor of the Merger and the other transactions contemplated by
this Agreement, including the Bank Merger. As of the date
hereof, Harbor knows of no reason pertaining to Harbor why any
of the approvals referred to in this Section 2.1(f) should not
be obtained without the imposition of any material condition or
restriction described in Section 5.1(b).
(g) Reports and Financial Statements.
--------------------------------
(i) Harbor and each of its Subsidiaries have
each timely filed all material reports, registrations and
statements, together with any amendments required to be made
with respect thereto, that they were required to file since
December 31, 1997 with (A) the FDIC, (B) the OTS, (C) the NASD
(as defined in Section 8.1), and (D) the SEC (as defined in
Section 8.1) (collectively, "HARBOR'S REPORTS") and have paid
all fees and assessments due and
13
payable in connection therewith. As of their respective dates
(or, if amended or superseded by a filing prior to the date of
this Agreement, then on the date of such filing), none of
Harbor's Reports contained any untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements made therein, in
light of the circumstances under which they were made, not
misleading. All of Harbor's Reports filed with the SEC complied
in all material respects with the applicable requirements of the
Exchange Act (as defined in Section 8.1) and the rules and
regulations of the SEC promulgated thereunder.
(ii) Each of the financial statements of
Harbor included in Harbor's Reports filed with the SEC complied
as to form, as of their respective dates of filing with the SEC,
in all material respects with applicable accounting requirements
and with the applicable published rules and regulations of the
SEC with respect thereto. The financial statements included in
Harbor's Reports were prepared from the books and records of
Harbor and its Subsidiaries, fairly present the consolidated
financial position of Harbor and its Subsidiaries in each case
at and as of the dates indicated and the consolidated results of
operations, retained earnings and cash flows of Harbor and its
Subsidiaries for the periods indicated, and, except as otherwise
set forth in the notes thereto, were prepared in accordance with
GAAP (as defined in Section 8.1) consistently applied throughout
the periods covered thereby; provided, however, that the
unaudited financial statements for interim periods are subject
to normal year-end adjustments (which will not be material
individually or in the aggregate) and lack a statement of cash
flows and footnotes.
(h) Absence of Certain Changes or Events. Except
------------------------------------
as disclosed in Harbor's Reports filed with the SEC prior to the
date of this Agreement, since December 31, 1999 (i) Harbor and
its Subsidiaries have not incurred any material liability,
except in the ordinary course of their business consistent with
past practice, (ii) Harbor and its Subsidiaries have conducted
their respective businesses only in the ordinary and usual
course of such businesses consistent with their past practices,
(iii) there has not been any event or occurrence that has had a
Material Adverse Effect on Harbor, (iv) there has been no
increase in the salary, compensation, pension or other benefits
payable or to become payable by Harbor or any of its
Subsidiaries to any of their respective directors, officers or
employees, other than in conformity with the policies and
practices of such entity in the usual and ordinary course of its
business, (v) neither Harbor nor any of its Subsidiaries has
paid or made any accrual or arrangement for payment of bonuses
or special compensation of any kind or any severance or
termination pay to any of their directors, officers or
employees, and (vi) there has been no change in any accounting
principles, practices or methods of Harbor or any of its
Subsidiaries other than as required by GAAP.
(i) Absence of Claims. No litigation, controversy,
-----------------
claim, action, suit or other legal, administrative or
arbitration proceeding before any court, governmental agency
or arbitrator, other than in connection with routine foreclosure
and collection claims against borrowers, is pending against
Harbor or Harbor Federal and, to the knowledge of Harbor, no
such litigation, controversy, claim, action, suit or proceeding
has been threatened. To the knowledge of Harbor, there are no
investigations, reviews or inquiries by any court or
governmental agency pending or threatened against Harbor or
Harbor Federal. There are no
14
judgments, decrees, injunctions, orders or rulings of any
Governmental Entity or arbitrator outstanding against Harbor or
Harbor Federal.
(j) Absence of Regulatory Actions. Since December
-----------------------------
31, 1997, neither Harbor nor any of its Subsidiaries has been a
party to any cease and desist order, written agreement or
memorandum of understanding with, or any commitment letter or
similar undertaking to, or has been subject to any action,
proceeding, order or directive by, or has been a recipient of
any extraordinary supervisory letter from any Government
Regulator (as defined in Section 8.1), or has adopted any board
resolutions at the request of any Government Regulator, or has
been advised by any Government Regulator that it is
contemplating issuing or requesting (or is considering the
appropriateness of issuing or requesting) any such action,
proceeding, order, directive, written agreement, memorandum of
understanding, extraordinary supervisory letter, commitment
letter, board resolutions or similar undertaking.
(k) Taxes. All federal, state, local and foreign
-----
tax returns required to be filed prior to the date of this
Agreement, by or on behalf of Harbor or any of its Subsidiaries
have been timely filed or requests for extensions have been
timely filed and any such extension shall have been granted and
not have expired, and all such filed returns are complete and
accurate in all material respects. All taxes shown on such
returns, all taxes required to be shown on returns for which
extensions have been granted and all other taxes required to be
paid by Harbor or any of its Subsidiaries have been paid in full
or adequate provision has been made for any such taxes on
Harbor's balance sheet (in accordance with GAAP). As of the
date of this Agreement, there is no audit examination,
deficiency assessment, tax investigation or refund litigation
with respect to any taxes of Harbor or any of its Subsidiaries,
and no claim has been made by any authority in a jurisdiction
where Harbor or any of its Subsidiaries do not file tax returns
that Harbor or any such Subsidiary is subject to taxation in
that jurisdiction. All taxes, interest, additions and penalties
due with respect to completed and settled examinations or
concluded litigation relating to Harbor or any of its
Subsidiaries have been paid in full or adequate provision has
been made for any such taxes on Harbor's balance sheet (in
accordance with GAAP). Harbor 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. Harbor 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, stockholder or other third
party, and Harbor and each of its Subsidiaries has timely
complied with all applicable information reporting requirements
under Part III, Subchapter A of Chapter 61 of the IRC and
similar applicable state and local information reporting
requirements.
(l) Agreements.
----------
(i) Harbor and its Subsidiaries are not
bound by any material contract (as defined in Item 601(b)(10) of
Regulation S-K promulgated by the SEC), to be performed after
the date hereof that has not been filed with or incorporated by
reference in Harbor's Reports.
15
(ii) Harbor's Disclosure Letter lists any
contract, arrangement, commitment or understanding (whether
written or oral) to which Harbor or any of its Subsidiaries is a
party or is bound:
(A) with any executive officer or
other key employee of Harbor or any of its Subsidiaries the
benefits of which are contingent, or the terms of which are
materially altered, upon the occurrence of a transaction
involving Harbor or any of its Subsidiaries of the nature
contemplated by this Agreement;
(B) with respect to the employment of
any directors, officers employees or consultants;
(C) (including any stock option plan,
phantom stock or stock appreciation rights plan, restricted
stock plan or stock purchase plan) any of the benefits of which
will be increased, or the vesting or payment of the benefits of
which will be accelerated, by the occurrence of any of the
transactions contemplated by this Agreement, or the value of any
of the benefits of which will be calculated on the basis of any
of the transactions contemplated by this Agreement;
(D) containing covenants that limit
the ability of Harbor or any of its Subsidiaries to compete in
any line of business or with any person, or that involve any
restriction on the geographic area in which, or method by which,
Harbor (including any successor thereof) or any of its
Subsidiaries may carry on its business (other than as may be
required by law or any regulatory agency);
(E) pursuant to which Harbor or any of
its Subsidiaries may become obligated to invest in or contribute
capital to any entity;
(F) not fully disclosed in Harbor's
Reports that relates to borrowings of money (or guarantees
thereof) by Harbor or any of its Subsidiaries, other than in the
ordinary course of business; or
(G) which is a lease or license with
respect to any property, real or personal, whether as landlord,
tenant, licensor or licensee, involving a liability or
obligation as obligor in excess of $25,000 on an annual basis.
To the knowledge of Harbor, each of the agreements and other
documents referenced in Harbor's Disclosure Letter is a valid,
binding and enforceable obligation of the parties sought to be
bound thereby, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights and remedies generally
and, as to enforceability, to general principles of equity,
whether applied in a court of law or a court of equity. Harbor
has previously delivered to Provident true and complete copies
of each agreement and other documents referenced in Harbor's
Disclosure Letter.
16
(iii) Neither Harbor nor any of its
Subsidiaries is in default under (and no event has occurred
which, with due notice or lapse of time or both, would
constitute a default under) or is in violation of any provision
of any note, bond, indenture, mortgage, deed of trust, loan
agreement, lease or other agreement to which it is a party or by
which it is bound or to which any of its respective properties
or assets is subject and, to the knowledge of Harbor, no other
party to any such agreement (excluding any loan or extension of
credit made by Harbor or any of its Subsidiaries) is in default
in any respect thereunder, except for such defaults or
violations that would not, individually or in the aggregate,
have a Material Adverse Effect on Harbor.
(iv) Harbor and each of its Subsidiaries owns
or possesses valid and binding licenses and other rights to use
without payment all patents, copyrights, trade secrets, trade
names, service marks and trademarks used in its businesses, and
neither Harbor nor any of its Subsidiaries has received any
notice of conflict with respect thereto that asserts the right
of others. Each of Harbor and its Subsidiaries has performed
all the obligations required to be performed by it and are not
in default under any contact, agreement, arrangement or
commitment relating to any of the foregoing.
(m) Labor Matters. Harbor and its Subsidiaries
-------------
are in material compliance with all applicable laws respecting
employment, retention of independent contractors and employment
practices, terms and conditions of employment and wages and
hours. Neither Harbor nor any of its Subsidiaries is or has
ever been a party to, or is or has ever been bound by, any
collective bargaining agreement, contract or other agreement or
understanding with a labor union or labor organization with
respect to its employees, nor is Harbor or any of its
Subsidiaries the subject of any proceeding asserting that it has
committed an unfair labor practice or seeking to compel it or
any such Subsidiary to bargain with any labor organization as to
wages and conditions of employment nor has any such proceeding
been threatened, nor is there any strike, other labor dispute or
organizational effort involving Harbor or any of its
Subsidiaries pending or threatened.
(n) Employee Benefit Plans.
----------------------
(i) Harbor's Disclosure Letter contains a
complete and accurate list of all pension, retirement, stock
option, stock purchase, stock ownership, savings, stock
appreciation right, profit sharing, deferred compensation,
consulting, bonus, group insurance, severance and other benefit
plans, contracts, agreements and arrangements, including, but
not limited to, "employee benefit plans," as defined in Section
3(3) of ERISA (as defined in Section 8.1), incentive and welfare
policies, contracts, plans and arrangements and all trust
agreements related thereto with respect to any present or former
directors, officers or other employees of Harbor or any of its
Subsidiaries (hereinafter referred to collectively as the
"HARBOR EMPLOYEE PLANS"). Harbor has previously delivered or
made available to Provident true and complete copies of each
agreement, plan and other documents referenced in Harbor's
Disclosure Letter. There has been no announcement or commitment
by Harbor or any of its Subsidiaries to create an additional
Harbor Employee Plan, or to amend any Harbor Employee
17
Plan, except for amendments required by applicable law which do
not materially increase the cost of such Harbor Employee Plan.
With respect to each Harbor Employee Plan, Harbor has previously
made available to Provident a true and correct copy of (A) the
annual report on the applicable form of the Form 5500 series
filed with the IRS (as defined in Section 8.1) for the most
recent three plan years, if required to be filed, (B) such
Harbor Employee Plan, including amendments thereto, (C) each
trust agreement, insurance contract or other funding arrangement
relating to such Harbor Employee Plan, including amendments
thereto, (D) the most recent summary plan description and
summary of material modifications thereto for such Harbor
Employee Plan, to the extent available, if the Harbor Employee
Plan is subject to Title I of ERISA, (E) the most recent
actuarial report or valuation if such Harbor Employee Plan is a
Harbor Pension Plan (as defined below) and any subsequent
changes to the actuarial assumptions contained therein and (F)
the most recent determination letter issued by the IRS if such
Harbor Employee Plan is a Harbor Qualified Plan (as defined
below).
(ii) There is no pending or, to the knowledge
of Harbor, threatened litigation, administrative action or
proceeding relating to any Harbor Employee Plan. All of the
Harbor Employee Plans comply in all material respects with all
applicable requirements of ERISA, the IRC and other applicable
laws. There has occurred no "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the IRC) with
respect to the Harbor Employee Plans which is likely to result
in the imposition of any penalties or taxes upon Harbor or any
of its Subsidiaries under Section 502(i) of ERISA or Section
4975 of the IRC.
(iii) No liability to the Pension Benefit
Guarantee Corporation has been or is expected by Harbor or any
of its Subsidiaries to be incurred with respect to any Harbor
Employee Plan which is subject to Title IV of ERISA ("HARBOR
PENSION PLAN"), or with respect to any "single-employer plan"
(as defined in Section 4001(a) of ERISA) currently or formerly
maintained by Harbor or any ERISA Affiliate (as defined in
Section 8.1). No Harbor Pension Plan had an "accumulated
funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, as of the last day of the end of the most
recent plan year ending prior to the date hereof; the fair
market value of the assets of each Harbor Pension Plan exceeds
the present value of the "benefit liabilities" (as defined in
Section 4001(a)(16) of ERISA) under such Harbor Pension Plan as
of the end of the most recent plan year with respect to the
respective Harbor Pension Plan ending prior to the date hereof,
calculated on the basis of the actuarial assumptions used in the
most recent actuarial valuation for such Harbor Pension Plan as
of the date hereof; and no notice of a "reportable event" (as
defined in Section 4043 of ERISA) for which the 30-day reporting
requirement has not been waived has been required to be filed
for any Harbor Pension Plan within the 12-month period ending on
the date hereof. Neither Harbor nor any of its Subsidiaries has
provided, or is required to provide, security to any Harbor
Pension Plan or to any single-employer plan of an ERISA
Affiliate pursuant to Section 401(a)(29) of the IRC. Neither
Harbor, its Subsidiaries, nor any ERISA Affiliate has
contributed to any "multiemployer plan," as defined in Section
3(37) of ERISA, on or after September 26, 1980.
(iv) Except as disclosed in Harbor's Disclosure
Letter, each Harbor Employee Plan that is an "employee pension
benefit plan" (as defined in Section 3(2) of ERISA)
18
and which is intended to be qualified under Section 401(a) of
the IRC (a "HARBOR QUALIFIED PLAN") has received a favorable
determination letter from the IRS (as defined in Section 8.1),
and Harbor and its Subsidiaries are not aware of any
circumstances likely to result in revocation of any such
favorable determination letter. Each Harbor Qualified Plan that
is an "employee stock ownership plan" (as defined in Section
4975(e)(7) of the IRC) has satisfied all of the applicable
requirements of Sections 409 and 4975(e)(7) of the IRC and the
regulations thereunder in all material respects and any assets
of any such Harbor Qualified Plan that, as of the end of the
plan year, are not allocated to participants' individual
accounts are pledged as security for, and may be applied to
satisfy, any securities acquisition indebtedness.
(v) Harbor and its Subsidiaries do not have
any obligations for post-retirement or post-employment benefits
under any Harbor Employee Plan that cannot be amended or
terminated upon 60 days' notice or less without incurring any
liability thereunder, except for coverage required by Part 6 of
Title I of ERISA or Section 4980B of the IRC, or similar state
laws, the cost of which is borne by the insured individuals.
With respect to Harbor or any of its Subsidiaries, for the
Harbor Employee Plans listed in Harbor's Disclosure Letter, the
execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby will not result in any
payment or series of payments by Harbor or any of its
Subsidiaries to any person which is an "excess parachute
payment" (as defined in Section 280G of the IRC) or is a
nondeductible payment under Section 162(m) of the IRC, increase
or secure (by way of a trust or other vehicle) any benefits
payable under any Harbor Employee Plan or accelerate the time of
payment or vesting of any such benefit.
(o) Title to Assets. Harbor's Disclosure Letter
---------------
contains a complete and accurate list of all real property owned
or leased by Harbor or Harbor's Subsidiaries, including all
properties of Harbor or its Subsidiaries classified as "Real
Estate Owned" or words of similar impact. Harbor and each of
its Subsidiaries has good and insurable title to its properties
and assets (including any intellectual property asset such as
any trademark, service mark, trade name or copyright) and
property acquired in a judicial foreclosure proceeding or by way
of a deed in lieu of foreclosure or similar transfer whether
real or personal, tangible or intangible, in each case free and
clear of any liens, security interests, encumbrances, mortgages,
pledges, restrictions, charges or rights or interests of others,
except (i) liens for taxes not yet due and payable, (ii) pledges
to secure deposits and other liens incurred in the ordinary
course of business, and (iii) such easements, restrictions and
encumbrances, if any, as are not material in character, amount
or extent, and do not materially detract from the value, or
materially interfere with the present use of the properties
subject thereto or affected thereby. Each lease pursuant to
which Harbor or any of its Subsidiaries is lessee or lessor is
valid and in full force and effect and neither Harbor nor any of
its Subsidiaries, nor, to Harbor's knowledge, any other party to
any such lease is in default or in violation of any material
provisions of any such lease. All material tangible properties
of Harbor and each of its Subsidiaries are in a good state of
maintenance and repair (normal wear and tear excepted), conform
with all applicable ordinances, regulations and zoning laws and
are considered by Harbor to be adequate for the current business
of Harbor and its Subsidiaries. To the knowledge of Harbor,
none of the buildings, structures or other
19
improvements located on its real property encroaches upon or
over any adjoining parcel or real estate or any easement or
right-of-way.
(p) Compliance with Laws. Harbor and each of its
--------------------
Subsidiaries has all permits, licenses, certificates of
authority, orders and approvals of, and has made all filings,
applications and registrations with, all Governmental Entities
that are required in order to permit it to carry on its business
as it is presently conducted; all such permits, licenses,
certificates of authority, orders and approvals are in full
force and effect, and no suspension or cancellation of any of
them is threatened. Harbor's Disclosure Letter contains a
complete and accurate list of all permits, licenses,
certificates of authority, orders and approvals of all
Governmental Entities that are required in order to permit it to
carry on its business as it is presently conducted. Neither
Harbor nor any of its Subsidiaries is in violation of, and
Harbor and its Subsidiaries have not been given notice or been
charged with any violation of, any law, ordinance, regulation,
order, writ, rule, decree or condition to approval of any
Governmental Entity which, individually or in the aggregate,
would reasonably be expected to have a Material Adverse Effect
on Harbor.
(q) Fees. Other than financial advisory services
----
performed for Harbor by Trident Securities pursuant to an
agreement dated November 1, 1999, a true and complete copy of
which has been previously delivered to Provident, neither Harbor
nor any of its Subsidiaries, nor any of their respective
officers, directors, employees or agents, has employed any
broker or finder or incurred any liability for any financial
advisory fees, brokerage fees, commissions or finder's fees, and
no broker or finder has acted directly or indirectly for Harbor
or any of its Subsidiaries in connection with this Agreement or
the transactions contemplated hereby.
(r) Environmental Matters.
---------------------
(i) With respect to Harbor and Harbor
Federal:
(A) Each of Harbor and Harbor Federal,
the Participation Facilities (as defined below), and, to the
knowledge of Harbor, the Loan Properties (as defined below) are,
and have been, in substantial compliance with, and are not
liable under, all Environmental Laws (as defined below);
(B) There is no suit, claim, action,
demand, executive or administrative order, directive,
investigation or proceeding pending or, to the knowledge of
Harbor, threatened, before any court, governmental agency or
board or other forum against Harbor or Harbor Federal or any
Participation Facility (1) for alleged noncompliance (including
by any predecessor) with, or liability under, any Environmental
Law or (2) relating to the presence of or release into the
environment of any Hazardous Material (as defined below),
whether or not occurring at or on a site owned, leased or
operated by Harbor or Harbor Federal or any Participation
Facility;
(C) To the knowledge of Harbor, there
is no suit, claim, action, demand, executive or administrative
order, directive, investigation or proceeding pending or
20
threatened before any court, governmental agency or board or
other forum relating to or against any Loan Property (or Harbor
or Harbor Federal in respect of such Loan Property) (1) relating
to alleged noncompliance (including by any predecessor) with, or
liability under, any Environmental Law or (2) relating to the
presence of or release into the environment of any Hazardous
Material, whether or not occurring at a Loan Property;
(D) To the knowledge of Harbor, the
properties currently owned or operated by Harbor or Harbor
Federal (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
Hazardous Material other than as permitted under applicable
Environmental Law;
(E) Neither Harbor nor Harbor Federal
has received any notice, demand letter, executive or
administrative order, directive or request for information from
any Governmental Entity or any third party indicating that it
may be in violation of, or liable under, any Environmental Law;
(F) To the knowledge of Harbor, there
are no underground storage tanks on, in or under any properties
owned or operated by Harbor or Harbor Federal or any
Participation Facility and no underground storage tanks have
been closed or removed from any properties owned or operated by
Harbor or Harbor Federal or any Participation Facility; and
(G) To the knowledge of Harbor, during
the period of (1) Harbor's or Harbor Federal's ownership or
operation of any of their respective current properties or (2)
Harbor's or Harbor Federal's participation in the management of
any Participation Facility, there has been no contamination by
or release of Hazardous Materials in, on, under or affecting
such properties. To the knowledge of Harbor, prior to the
period of (1) Harbor's or Harbor Federal's ownership or
operation of any of their respective current properties or
(2) Harbor's or Harbor Federal's participation in the management
of any Participation Facility, there was no contamination by or
release of Hazardous Material in, on, under or affecting such
properties.
(ii) The following definitions apply for
purposes of Sections 2.1(r) and 2.2(n):
"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.
21
"ENVIRONMENTAL LAW" means (i) any federal,
state or local law, statute, ordinance, rule, regulation, code,
license, permit, authorization, approval, consent, legal
doctrine, order, directive, executive or administrative order,
judgment, decree, injunction, legal requirement or agreement
with any Governmental Entity relating to (A) the protection,
preservation or restoration of the environment (which includes,
without limitation, air, water vapor, surface water,
groundwater, drinking water supply, structures, soil, surface
land, subsurface land, plant and animal life or any other
natural resource), or to human health or safety as it relates to
Hazardous Materials, or (B) the exposure to, or the use,
storage, recycling, treatment, generation, transportation,
processing, handling, labeling, production, release or disposal
of, Hazardous Materials, in each case as amended and as now in
effect. The term Environmental Law includes all federal, state
and local laws, rules, regulations or requirements relating to
the protection of the environment or health and safety,
including, without limitation, (x) the Federal Comprehensive
Environmental Response, Compensation and Liability Act of 1980,
the Superfund Amendments and Reauthorization Act of 1986, the
Federal Water Pollution Control Act of 1972, the Federal Clean
Air Act, the Federal Clean Water Act, the Federal Resource
Conservation and Recovery Act of 1976 (including, but not
limited to, the Hazardous and Solid Waste Amendments thereto and
Subtitle I relating to underground storage tanks), the Federal
Solid Waste Disposal and the Federal Toxic Substances Control
Act, the Federal Insecticide, Fungicide and Rodenticide Act, the
Federal Occupational Safety and Health Act of 1970 as it relates
to Hazardous Materials, the Federal Hazardous Substances
Transportation Act, the Emergency Planning and Community
Right-To-Know Act, the Safe Drinking Water Act, the Endangered
Species Act, the National Environmental Policy Act, the Rivers
and Harbors Appropriation Act or any so-called "Superfund" or
"Superlien" law, each as amended and as now in effect, and (y)
any common law or equitable doctrine (including, without
limitation, injunctive relief and tort doctrines such as
negligence, nuisance, trespass and strict liability) that may
impose liability or obligations for injuries or damages due to,
or threatened as a result of, the presence of or exposure to any
Hazardous Material.
"HAZARDOUS MATERIAL" means any substance
(whether solid, liquid or gas) which is or could be detrimental
to human health or safety or to the environment, currently or
hereafter listed, defined, designated or classified as
hazardous, toxic, radioactive or dangerous, or otherwise
regulated, under any Environmental Law, whether by type or by
quantity, including any substance containing any such substance
as a component. Hazardous Material includes, without limitation,
any toxic waste, pollutant, contaminant, hazardous substance,
toxic substance, hazardous waste, special waste, industrial
substance, oil or petroleum, or any derivative or by-product
thereof, radon, radioactive material, asbestos,
asbestos-containing material, urea formaldehyde foam insulation,
lead and polychlorinated biphenyl.
22
(s) Loan Portfolio; Allowance;
Asset Quality.
----------------------------------------
(i) With respect to each Loan (as defined in
Section 8.1) owned by Harbor or its Subsidiaries in whole or in
part:
(A) to the knowledge of Harbor, the
note and the related security documents are each legal, valid
and binding obligations of the maker or obligor thereof,
enforceable against such maker or obligor in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent
conveyance and other laws of general applicability relating to
or affecting creditors' rights and to general equity principles;
(B) neither Harbor nor any of its
Subsidiaries, nor any prior holder of a Loan, has modified the
note or any of the related security documents in any material
respect or satisfied, canceled or subordinated the note or any
of the related security documents except as otherwise disclosed
by documents in the applicable Loan file;
(C) Harbor or a Subsidiary of Harbor
is the sole holder of legal and beneficial title to each Loan
(or Harbor's or its Subsidiary's applicable participation
interest, as applicable), except as otherwise referenced on the
books and records of Harbor or a Subsidiary of Harbor;
(D) the note and the related security
documents, copies of which are included in the Loan files, are
true and correct copies of the documents they purport to be and
have not been suspended, amended, modified, canceled or
otherwise changed except as otherwise disclosed by documents in
the applicable Loan file;
(E) to the knowledge of Harbor, there
is no pending or threatened condemnation proceeding or similar
proceeding affecting the property that serves as security for a
Loan, except as otherwise referenced on the books and records of
Harbor;
(F) to the knowledge of Harbor, there
is no litigation or proceeding pending or threatened relating to
the property that serves as security for a Loan that would have
a Material Adverse Effect upon the related Loan; and
(G) with respect to a Loan held in the
form of a participation, the participation documentation is
legal, valid, binding and enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent conveyance
and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(ii) The allowance for possible loan losses
reflected in Harbor's audited balance sheet at March 31, 1999
was, and the allowance for possible losses shown on the balance
sheets in Harbor's Reports for periods ending after March 31,
1999, in the opinion of management, was or will be adequate, as
of the dates thereof, under GAAP.
23
(iii) Harbor's Disclosure Letter sets forth a
true and complete listing, as of March 31, 2000, of:
(A) all Loans that have been
classified (whether regulatory or internal) as "Special
Mention," "Substandard," "Doubtful," "Loss" or words of similar
import listed by category, including the amounts thereof; and
(B) Loans (1) that are contractually
past due 90 days or more in the payment of principal and/or
interest, (2) that are on a non-accrual status, (3) where 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 (4) where a specific reserve allocation exists in connection
therewith, listed by category, including the amounts thereof.
(iv) To the knowledge of Harbor, neither
Harbor nor any of its Subsidiaries is a party to any Loan that
is in violation of any law, regulation or rule of any
Governmental Entity. Any asset of Harbor or any of its
Subsidiaries that is classified as "Real Estate Owned" or words
of similar import that is included in any non-performing assets
of Harbor or any of its Subsidiaries is listed in Harbor's
Disclosure Letter and is carried net of reserves at the lower of
cost or fair value, less estimated selling costs, based on
current independent appraisals or evaluations or current
management appraisals or evaluations; provided, however, that
"current" shall mean within the past 12 months.
(t) Deposits. None of the deposits of Harbor or
--------
any of its Subsidiaries is a "brokered" deposit.
(u) Anti-takeover Provisions Inapplicable.
-------------------------------------
Harbor and its Subsidiaries have taken all actions required to
exempt Provident, the Agreement, the Plan of Bank Merger, the
Merger and the Bank Merger from any provisions of an
antitakeover nature contained in their organizational documents,
and the provisions of any federal or state "anti-takeover,"
"fair price," "moratorium," "control share acquisition" or
similar laws or regulations.
(v) Material Interests of Certain Persons. No
-------------------------------------
officer or director of Harbor, or any "associate" (as such term
is defined in Rule 12b-2 under the Exchange Act) of any such
officer or director, has any material interest in any material
contract or property (real or personal), tangible or intangible,
used in or pertaining to the business of Harbor or Harbor
Federal.
(w) Insurance. In the opinion of management,
---------
Harbor and its Subsidiaries are presently insured for amounts
deemed reasonable by management against such risks as companies
engaged in a similar business would, in accordance with good
business practice, customarily be insured. All of the insurance
policies and bonds maintained by Harbor and its Subsidiaries are
in full force and effect, Harbor and its Subsidiaries are not in
default thereunder and all material claims thereunder have been
filed in due and timely fashion.
24
(x) Investment Securities; Derivatives.
----------------------------------
(i) Except for restrictions that exist for
securities to be classified as "held to maturity," none of the
investment securities held by Harbor or any of its Subsidiaries
is subject to any restriction (contractual or statutory) that
would materially impair the ability of the entity holding such
investment freely to dispose of such investment at any time.
(ii) Neither Harbor nor any of its
Subsidiaries is a party to or has agreed to enter into an
exchange-traded or over-the-counter equity, interest rate,
foreign exchange or other swap, forward, future, option, cap,
floor or collar or any other contract that is a derivative
contract (including various combinations thereof) or owns
securities that (A) are referred to generically as "structured
notes," "high risk mortgage derivatives," "capped floating rate
notes" or "capped floating rate mortgage derivatives" or (B) are
likely to have changes in value as a result of interest or
exchange rate changes that significantly exceed normal changes
in value attributable to interest or exchange rate changes.
(y) Indemnification. Except as provided in the
---------------
articles of incorporation or bylaws of Harbor and the similar
organizational documents of its Subsidiaries, neither Harbor nor
any Subsidiary is a party to any agreement that provides for the
indemnification of any of its present or former directors,
officers or employees, or other persons who serve or served as a
director, officer or employee of another corporation,
partnership or other enterprise at the request of Harbor and, to
the knowledge of Harbor, there are no claims for which any such
person would be entitled to indemnification under the articles
of incorporation or bylaws of Harbor or the similar
organizational documents of any of its Subsidiaries, under any
applicable law or regulation or under any indemnification
agreement.
(z) Books and Records. The books and records of
-----------------
Harbor and its Subsidiaries on a consolidated basis have been,
and are being, maintained in accordance with applicable legal
and accounting requirements and reflect in all material respects
the substance of events and transactions that should be included
therein.
(aa) Corporate Documents. Harbor has previously
-------------------
furnished or made available to Provident a complete and correct
copy of the articles of incorporation, bylaws and similar
organizational documents of Harbor and each of Harbor's
Subsidiaries, as in effect as of the date of this Agreement.
Neither Harbor nor any of Harbor's Subsidiaries is in violation
of its articles of incorporation, bylaws or similar
organizational documents. The minute books of Harbor and each
of Harbor's Subsidiaries constitute a complete and correct
record of all actions taken by their respective boards of
directors (and each committee thereof) and their stockholders.
(bb) Registration Statement. The information
----------------------
regarding Harbor and its Subsidiaries to be supplied by Harbor
for inclusion in the Registration Statement (as defined in
Section 4.9) will not, at the time the Registration Statement
becomes effective, contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein
25
or necessary in order to make the statements therein, in
light of the circumstances under which they are made, not
misleading.
(cc) Community Reinvestment Act Compliance. Harbor
-------------------------------------
Federal is in material compliance with the applicable provisions
of the CRA (as defined in Section 8.1) and the regulations
promulgated thereunder, and Harbor Federal currently has a CRA
rating of satisfactory or better. To the knowledge of Harbor,
there is no fact or circumstance or set of facts or
circumstances that would cause Harbor Federal to fail to comply
with such provisions or cause the CRA rating of Harbor Federal
to fall below satisfactory.
(dd) Undisclosed Liabilities. As of the date
-----------------------
hereof, Harbor and its Subsidiaries have not incurred any debt,
liability or obligation of any nature whatsoever (whether
accrued, contingent, absolute or otherwise and whether due or to
become due) except for (i) liabilities reflected on or reserved
against in the consolidated financial statements of Harbor as of
March 31, 1999, (ii) liabilities incurred since March 31, 1999
in the ordinary course of business consistent with past practice
that, either alone or when combined with all similar
liabilities, have not had, and would not reasonably be expected
to have, a Material Adverse Effect on Harbor and, (iii)
liabilities incurred for legal, accounting, financial advising
fees and out-of-pocket expenses in connection with the
transactions contemplated by this Agreement.
(ee) Year 2000 Matters. Harbor and its Subsidiaries
-----------------
have not experienced any data processing or other computer
malfunctions related to processing date information on and after
January 1, 2000 and none of the third party service providers or
customers of Harbor or its Subsidiaries have reported year 2000
data processing problems to Harbor that, individually or in the
aggregate, would have a Material Adverse Effect on Harbor.
(ff) Tax Treatment of the Merger. Harbor has no
---------------------------
knowledge of any fact or circumstance relating to it that would
prevent the transactions contemplated by this Agreement from
qualifying as a reorganization under the IRC.
(gg) Liquidation Account. Neither the Merger nor the
-------------------
Bank Merger will result in any payout or distribution payable
out of the liquidation account of Harbor Federal established in
connection with Harbor Federal's conversion from mutual to stock
form.
Section 2.2. Representations and Warranties of
---------------------------------
Provident. Except as set forth in the Disclosure Letter
- ---------
delivered by Provident to Harbor prior to the execution of this
Agreement, Provident represents and warrants to Harbor that:
(a) Organization.
------------
(i) Provident is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Maryland and is registered as a bank holding company.
26
(ii) Provident Bank is a state-chartered
commercial bank duly organized and validly existing under the
laws of the State of Maryland. The deposits of Provident Bank
are insured by the Bank Insurance Fund of FDIC to the extent
provided in the FDIA.
(iii) Each of Provident and Provident Bank
each has all requisite corporate power and authority to own,
lease and operate its properties and to conduct the business
currently being conducted by it. Provident and Provident Bank
are each duly qualified or licensed as a foreign corporation to
transact business and are in good standing in each jurisdiction
in which the character of the properties owned or leased by it
or the nature of the business conducted by it makes such
qualification or licensing necessary, except where the failure
to be so qualified or licensed and in good standing would not
have a Material Adverse Effect on Provident.
(b) Subsidiaries.
------------
(i) Exhibit 21 to Provident's Annual Report
on Form 10-K for the year ended December 31, 1999 lists all the
Subsidiaries of Provident. All such Subsidiaries and ownership
interests are in compliance with all applicable laws, rules and
regulations relating to investments in equity ownership
interests by bank holding companies or Maryland-chartered banks.
(ii) Provident owns of record and
beneficially all the capital stock of each of its Subsidiaries
free and clear of any claims, liens, encumbrances or
restrictions and there are no agreements or understandings with
respect to the voting or disposition of any such shares. The
outstanding shares of capital stock of each Subsidiary have been
validly authorized and are validly issued, fully paid and
nonassessable. Each of Provident's Subsidiaries is a
corporation duly organized and validly existing under the laws
of its jurisdiction of incorporation, has all requisite
corporate power and authority to own, lease and operate its
properties and to conduct the business currently being conducted
by it and is duly qualified or licensed as a foreign corporation
to transact business and is in good standing in each
jurisdiction in which the character of the properties owned or
leased by it or the nature of the business conducted by it makes
such qualification or licensing necessary, except where the
failure to be so qualified or licensed and in good standing
would not have a Material Adverse Effect on Provident.
(iii) No Subsidiary of Provident other than
Provident Bank is an "insured depository institution" as defined
in the FDIA and the applicable regulations thereunder.
(c) Capital Structure.
-----------------
(i) The authorized capital stock of Provident
consists of:
(A) 100,000,000 shares of Provident Common
Stock; and
27
(B) 5,000,000 of preferred stock, par value
$1.00 per share.
(ii) As of the date of this Agreement:
(A) 25,063,952 shares of Provident Common
Stock are issued and outstanding, all of which are validly
issued, fully paid and nonassessable;
(B) 899 shares of Provident preferred stock
are issued and outstanding;
(C) no shares of Provident preferred stock
are held in Provident's treasury;
(D) 250,639 shares of Class A Preferred
Stock are reserved for issuance upon exercise of the rights
distributed to holders of Provident Common Stock pursuant to the
Stockholder Protection Rights Agreement dated as of January 18,
1995, as amended as of July 15, 1998, between Provident and
Provident Bank, as rights agent.
(E) 2,115,763 shares of Provident Common
Stock are reserved for issuance pursuant to outstanding grants
or awards under Provident's stock option plans;
(F) 1,348,050 shares of Provident Common
Stock are reserved for issuance pursuant to Provident's Dividend
Reinvestment Plan; and
(G) 1,187,432 shares of Provident Common
Stock are held by Provident in its treasury or by its
Subsidiaries.
(iii) No bonds, debentures, notes or other
indebtedness having the right to vote on any matters on which
stockholders of Provident may vote are issued or outstanding.
(iv) Except as set forth in this Section
2.2(c), as of the date of this Agreement, (A) no shares of
capital stock or other voting securities of Provident are
issued, reserved for issuance or outstanding and (B) neither
Provident nor any of its Subsidiaries has or is bound by any
outstanding subscriptions, options, warrants, calls, rights,
convertible securities, commitments or agreements of any
character obligating Provident or any of its Subsidiaries to
issue, deliver or sell, or cause to be issued, delivered or
sold, any additional shares of capital stock of Provident or
obligating Provident or any of its Subsidiaries to grant, extend
or enter into any such option, warrant, call, right, convertible
security, commitment or agreement. As of the date hereof, there
are no outstanding contractual obligations of Provident or any
of its Subsidiaries to repurchase, redeem or otherwise acquire
any shares of capital stock of Provident or any of its
Subsidiaries.
(v) Prior to the filing of the Registration
Statement, the shares of Provident Common Stock to be issued in
exchange for shares of Harbor Common Stock upon
28
consummation of the Merger in accordance with this Agreement,
and upon exercise of options pursuant to Section 1.7 of this
Agreement, will have been duly authorized and such shares, when
issued in accordance with the terms of this Agreement, will be
validly issued, fully paid and nonassessable and subject to no
preemptive rights.
(d) Authority.
---------
(i) Provident has all requisite corporate
power and authority to enter into this Agreement, to perform its
obligations hereunder and to consummate the transactions
contemplated by this Agreement. The execution and delivery of
this Agreement and the consummation of the transactions
contemplated by this Agreement have been duly authorized by all
necessary corporate actions on the part of Provident's Board of
Directors, and no other corporate proceedings on the part of
Provident are necessary to authorize this Agreement or to
consummate the transactions contemplated by this Agreement.
This Agreement has been duly and validly executed and delivered
by Provident and constitutes a valid and binding obligation of
Provident, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency and similar laws affecting
creditors' rights and remedies generally and, as to
enforceability, to general principles of equity, whether applied
in a court of law or a court of equity.
(ii) Provident Bank has all requisite corporate
power and authority to enter into the Plan of Bank Merger and to
consummate the transactions contemplated thereby. The execution
and delivery of the Plan of Bank Merger and the consummation of
the transactions contemplated thereby have been duly authorized
by the Board of Directors of Provident Bank and approved by
Provident as the sole stockholder of Provident Bank. The Plan
of Bank Merger, upon execution and delivery by Provident Bank,
will be duly and validly executed and delivered by Provident
Bank and will constitute a valid and binding obligation of
Provident Bank, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights and remedies generally and, as to
enforceability, to general principles of equity, whether applied
in a court of law or a court of equity.
(e) No Violations; Consents.
-----------------------
(i) The execution, delivery and performance
of this Agreement by Provident do not, and the consummation of
the transactions contemplated by this Agreement will not,
(A) assuming that the consents and approvals referred to in
Section 2.2(e)(ii) are obtained, violate any law, rule or
regulation or any judgment, decree, order, governmental permit
or license to which Provident or any of its Subsidiaries (or any
of their respective properties) is subject, (B) violate the
articles of incorporation or bylaws of Provident or the similar
organizational documents of any of its Subsidiaries or
(C) constitute a breach or violation of, or a default under (or
an event which, with due notice or lapse of time or both, would
constitute a default under), or result in the termination of,
accelerate the performance required by, or result in the
creation of any lien, pledge, security interest, charge or other
encumbrance upon any of the properties or assets of Provident or
any of its Subsidiaries under, any of the terms, conditions or
provisions of any note, bond, indenture, deed of trust, loan
agreement or other agreement, instrument or
29
obligation to which Provident or any of its Subsidiaries is a
party, or to which any of their respective properties or assets
may be subject, except, in the case of (C), for any such
breaches, violations or defaults that would not, individually or
in the aggregate, have a Material Adverse Effect on Provident.
(ii) Except for (A) the filing of an
application with the FDIC under the Bank Merger Act and the
approval or waiver of such application, (B) the filing of
applications or notices, as applicable, with the Federal Reserve
Board and the OTS and approval of such application and/or lack
of objection to any notice, (C) the filing of applications or
notices, as applicable, with the Commissioner and approval of
such applications or notices, (D) the filing of articles of
merger with the Department pursuant to MGCL, (E) the
registration under the Securities Act of the shares of Provident
Common Stock to be issued in exchange for shares of Harbor
Common Stock, (F) the registration or qualification of the
shares of Provident Common Stock to be issued in exchange for
shares of Harbor Common Stock under state securities or "blue
sky" laws, (G) the listing of shares of Provident Common Stock
to be issued in exchange for shares Harbor Common Stock on the
Nasdaq Stock Market, and (H) such filings, authorizations or
approvals as may be set forth in Provident's Disclosure Letter,
no consents or approvals of or filings or registrations with any
Governmental Entity or with any third party are necessary in
connection with the execution and delivery by Provident of this
Agreement or the consummation by Provident of the Merger and the
other transactions contemplated by this Agreement, including the
Bank Merger. As of the date hereof, Provident knows of no
reason pertaining to Provident why any of the approvals referred
to in this Section 2.2(e) should not be obtained without the
imposition of any material condition or restriction described in
Section 5.1(b).
(f) Reports and Financial Statements.
--------------------------------
(i) Provident and each of its Subsidiaries
have each timely filed all material reports, registrations and
statements, together with any amendments required to be made
with respect thereto, that they were required to file since
December 31, 1997 with (A) the FDIC, (B) the Federal Reserve
Board, (C) the NASD, (D) the State of Maryland Department of
Labor, Licensing and Registration or (E) the SEC (collectively,
"PROVIDENT'S REPORTS") and have paid all fees and assessments
due and payable in connection therewith. As of their respective
dates, none of Provident's Reports contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under
which they were made, not misleading. All of Provident's
Reports filed with the SEC complied in all material respects
with the applicable requirements of the Exchange Act and the
rules and regulations of the SEC promulgated thereunder.
(ii) Each of the financial statements of
Provident included in Provident's Reports filed with the SEC
complied as to form, as of their respective dates of filing with
the SEC, in all material respects with applicable accounting
requirements and with the published rules and regulations of the
SEC with respect thereto. The financial statements included in
Provident's Reports were prepared from the books and records of
Provident and its Subsidiaries, fairly present the consolidated
financial position of Provident and its Subsidiaries in
30
each case at and as of the dates indicated and the consolidated
results of operations, retained earnings and cash flows of
Provident and its Subsidiaries for the periods indicated, and,
except as otherwise set forth in the notes thereto, were
prepared in accordance with GAAP consistently applied throughout
the periods covered thereby; provided, however, that the
unaudited financial statements for interim periods are subject
to normal year-end adjustments (which will not be material
individually or in the aggregate) and lack a statement of cash
flows and footnotes.
(g) Absence of Certain Changes or Events. Except
------------------------------------
as disclosed in Provident's Reports filed with the SEC prior to
the date of this Agreement, since December 31, 1999,
(i) Provident and its Subsidiaries have not incurred any
liability, except in the ordinary course of their business
consistent with past practice, (ii) Provident and its
Subsidiaries have conducted their respective businesses only in
the ordinary and usual course of such businesses consistent with
their past practices, (iii) there has not been any event or
occurrence that has had a Material Adverse Effect on Provident,
and (iv) there has been no change in any accounting principles,
practices or methods of Provident or any of its Subsidiaries
other than as required by GAAP.
(h) Absence of Claims. There are no suits,
-----------------
actions or proceedings pending or, to the knowledge of
Provident, threatened against or affecting Provident or any of
its Subsidiaries or any property or asset of Provident or any of
its Subsidiaries which, individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect on
Provident, nor are there any judgments, decrees, injunctions,
rules or orders of any Governmental Entity or arbitrator
outstanding against Provident which, individually or in the
aggregate, would reasonably be expected to have a Material
Adverse Effect on Provident.
(i) Absence of Regulatory Actions. Since December
-----------------------------
31, 1997, neither Provident nor any of its Subsidiaries has been
a party to any cease and desist order, written agreement or
memorandum of understanding with, or any commitment letter or
similar undertaking to, or has been subject to any action,
proceeding, order or directive by, or has been a recipient of
any extraordinary supervisory letter from Government Regulator,
or has adopted any board resolutions at the request of any
Government Regulator, or has been advised by any Government
Regulator that it is contemplating issuing or requesting (or is
considering the appropriateness of issuing or requesting) any
such action, proceeding, order, directive, written agreement,
memorandum of understanding, extraordinary supervisory letter,
commitment letter, board resolutions or similar undertaking.
(j) Taxes. All federal, state, local and foreign
-----
tax returns required to be filed by or on behalf of Provident or
any of its Subsidiaries have been timely filed or requests for
extensions have been timely filed and any such extension shall
have been granted and not have expired, and all such filed
returns are complete and accurate in all material respects. All
taxes shown on such returns, all taxes required to be shown on
returns for which extensions have been granted and all other
taxes required to be paid by Provident or any of its
Subsidiaries have been paid in full or adequate provision has
been made for any such taxes on Provident's balance sheet (in
accordance with GAAP). As of the date of this Agreement, there
is no audit examination, deficiency assessment, tax
investigation or refund litigation with respect to any taxes of
31
Provident or any of its Subsidiaries, and no claim has been made
by any authority in a jurisdiction where Provident or any of its
Subsidiaries do not file tax returns that Provident or any such
Subsidiary is subject to taxation in that jurisdiction. All
taxes, interest, additions and penalties due with respect to
completed and settled examinations or concluded litigation
relating to Provident or any of its Subsidiaries have been paid
in full or adequate provision has been made for any such taxes
on Provident's balance sheet (in accordance with GAAP).
Provident 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.
Provident 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, stockholder or other third party, and Provident and
each of its Subsidiaries has timely complied with all applicable
information reporting requirements under Part III, Subchapter A
of Chapter 61 of the IRC and similar applicable state and local
information reporting requirements.
(k) Agreements.
----------
(i) Provident and its Subsidiaries are not
bound by any material contract (as defined in Item 601(b)(10) of
Regulation S-K promulgated by the SEC), to be performed after
the date hereof that has not been filed with or incorporated by
reference in Provident's Reports.
(ii) neither Provident nor any of its
Subsidiaries is in default under (and no event has occurred
which, with due notice or lapse of time or both, would
constitute a default under) or is in violation of any provision
of any note, bond, indenture, mortgage, deed of trust, loan
agreement, lease or other agreement to which it is a party or by
which it is bound or to which any of its respective properties
or assets is subject and, to the knowledge of Provident, no
other party to any such agreement (excluding any loan or
extension of credit made by Provident or any of its
Subsidiaries) is in default in any respect thereunder, except
for such defaults or violations that would not, individually or
in the aggregate, have a Material Adverse Effect on Provident.
(l) Labor Matters. Provident and its Subsidiaries
-------------
are in material compliance with all applicable laws respecting
employment, retention of independent contractors and employment
practices, terms and conditions of employment and wages and
hours. Neither Provident nor any of its Subsidiaries is or has
ever been a party to, or is or has ever been bound by, any
collective bargaining agreement, contract or other agreement or
understanding with a labor union or labor organization with
respect to its employees, nor is Provident or any of its
Subsidiaries the subject of any proceeding asserting that it has
committed an unfair labor practice or seeking to compel it or
any such Subsidiary to bargain with any labor organization as to
wages and conditions of employment nor has any such proceeding
been threatened, nor is there any strike, other labor dispute or
organizational effort involving Provident or any of its
Subsidiaries pending or threatened.
32
(m) Compliance with Laws. Provident and each of
--------------------
its Subsidiaries has all permits, licenses, certificates of
authority, orders and approvals of, and has made all filings,
applications and registrations with, all Governmental Entities
that are required in order to permit it to carry on its business
as it is presently conducted; all such permits, licenses,
certificates of authority, orders and approvals are in full
force and effect, and no suspension or cancellation of any of
them is threatened. Neither Provident nor any of its
Subsidiaries is in violation of, and Provident and its
Subsidiaries have not been given notice or been charged with any
violation of, any law, ordinance, regulation, order, writ, rule,
decree or condition to approval of any Governmental Entity
which, individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect on Provident.
(n) Environmental Matters. With respect to
---------------------
Provident and Provident Bank:
(i) Each of Provident and Provident Bank,
the Participation Facilities and, to the knowledge of Provident,
the Loan Properties are, and have been, in substantial
compliance with, and are not liable under, all Environmental
Laws.
(ii) There is no suit, claim, action, demand,
executive or administrative order, directive, investigation or
proceeding pending or, to the knowledge of Provident,
threatened, before any court, governmental agency or board or
other forum against Provident or Provident Bank or any
Participation Facility (1) for alleged noncompliance (including
by any predecessor) with, or liability under, any Environmental
Law or (2) relating to the presence of or release into the
environment of any Hazardous Material, whether or not occurring
at or on a site owned, leased or operated by Provident or
Provident Bank or any Participation Facility;
(iii) To the knowledge of Provident, there is
no suit, claim, action, demand, executive or administrative
order, directive, investigation or proceeding pending or
threatened before any court, governmental agency or board or
other forum relating to or against any Loan Property (or
Provident or Provident Bank in respect of such Loan Property)
(a) relating to alleged noncompliance (including by any
predecessor) with, or liability under, any Environmental Law or
(b) relating to the presence of or release into the environment
of any Hazardous Material, whether or not occurring at a Loan
Property.
(iv) To the knowledge of Provident, the
properties currently owned or operated by Provident or Provident
Bank (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
Hazardous Material other than as permitted under applicable
Environmental Law; and
(v) Neither Provident nor Provident Bank has
received any notice, demand letter, executive or administrative
order, directive or request for information from any
Governmental Entity or any third party indicating that it may be
in violation of, or liable under, any Environmental Law;
33
(vi) To the knowledge of Provident, there are
no underground storage tanks on, in or under any properties
owned or operated by Provident or Provident Bank or any
Participation Facility and no underground storage tanks have
been closed or removed from any properties owned or operated by
Provident or Provident Bank, or any Participation Facility; and
(vii) To the knowledge of Provident, during
the period of (a) Provident or Provident Bank's ownership or
operation of any of their respective current properties or (b)
Provident or a Provident Bank's participation in the management
of any Participation Facility, there has been no contamination
by or release of Hazardous Materials in, on, under or affecting
such properties. To the knowledge of Provident, prior to the
period of (a) Provident or Provident Bank's ownership or
operation of any of their respective current properties or (b)
Provident or Provident Bank's participation in the management of
any Participation Facility, there was no contamination by or
release of Hazardous Material, in on, under or affecting such
properties.
(o) Allowance. The allowance for loan losses
---------
reflected in Provident's audited balance sheet at December 31,
1999 was, and the allowance for possible losses shown on the
balance sheets in Provident's Reports for periods ending after
December 31, 1999, in the opinion of management, was or will be
adequate, as of the dates thereof, under GAAP.
(p) Books and Records. The books and records of
-----------------
Provident and its Subsidiaries on a consolidated basis have
been, and are being, maintained in accordance with applicable
legal and accounting requirements and reflect in all material
respects the substance of events and transactions that should be
included therein.
(q) Corporate Documents. Provident has previously
-------------------
furnished or made available to Harbor a complete and correct
copy of the articles of incorporation, bylaws and similar
organizational documents of Provident and each of Provident's
Subsidiaries, as in effect as of the date of this Agreement.
Neither Provident nor any of Provident's Subsidiaries is in
violation of its articles of incorporation, bylaws or similar
organizational documents. The minute books of Provident and
each of Provident's Subsidiaries constitute a complete and
correct record of all actions taken by their respective boards
of directors (and each committee thereof) and their
stockholders.
(r) Registration Statement. The information
----------------------
regarding Provident and its Subsidiaries to be supplied by
Provident for inclusion in the Registration Statement will not,
at the time the Registration Statement becomes effective,
contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the
circumstances under which they are made, not misleading.
(s) Community Reinvestment Act Compliance.
-------------------------------------
Provident Bank is in material compliance with the applicable
provisions of the CRA and the regulations promulgated
thereunder, and Provident Bank currently has a CRA rating of
satisfactory or better. To the knowledge of Provident, there is
no fact or circumstance or set of facts or circumstances that
34
would cause Provident Bank to fail to comply with such
provisions or cause the CRA rating of Provident Bank to fall
below satisfactory.
(t) Undisclosed Liabilities. As of the date
-----------------------
hereof, Provident and its Subsidiaries have not incurred any
debt, liability or obligation of any nature whatsoever (whether
accrued, contingent, absolute or otherwise and whether due or to
become due) except for (i) liabilities reflected on or reserved
against in the consolidated financial statements of Provident as
of December 31, 1999, and (ii) liabilities incurred since
December 31, 1999, either alone or when combined with all
similar liabilities, have not had and would not reasonably be
expected to have, a Material Adverse Effect on Provident.
(u) Year 2000 Matters. Provident and its
-----------------
Subsidiaries have not experienced any data processing or other
computer malfunctions related to processing date information on
and after January 1, 2000 and none of the third party service
providers or customers of Provident or its Subsidiaries have
reported year 2000 data processing problems to Provident that,
individually or in the aggregate, would have a Material Adverse
Effect on Provident.
(v) Tax Treatment of the Merger. Provident has no
---------------------------
knowledge of any fact or circumstance relating to it that would
prevent the transactions contemplated by this Agreement from
qualifying as a reorganization under the IRC.
ARTICLE III
CONDUCT PENDING THE MERGER
--------------------------
Section 3.1. Conduct of Harbor's Business Prior to the
-----------------------------------------
Effective Time. Except as expressly provided in this
- --------------
Agreement, during the period from the date of this Agreement to
the Effective Time, Harbor shall, and shall cause each of its
Subsidiaries to, use commercially reasonable efforts to (i)
conduct its business in the regular, ordinary and usual course
consistent with past practice, (ii) maintain and preserve intact
its business organization, properties, leases, employees and
advantageous business relationships and retain the services of
its officers and key employees, (iii) take no action that would
adversely affect or delay the ability of Harbor or Provident to
perform their respective covenants and agreements on a timely
basis under this Agreement, (iv) take no action that would
adversely affect or delay the ability of Harbor, Harbor Federal,
Provident or Provident Bank to obtain any necessary approvals,
consents or waivers of any governmental authority required for
the transactions contemplated hereby or which would reasonably
be expected to result in any such approvals, consents or waivers
containing any material condition or restriction, and (v) take
no action that results in, or is reasonably likely to have, a
Material Adverse Effect on Harbor or Harbor Federal.
Section 3.2. Forbearance by Harbor. Without
---------------------
limiting the covenants set forth in Section 3.1 hereof, except
as expressly contemplated or permitted by this Agreement or as
set forth in Harbor's Disclosure Letter and except to the extent
required by law or regulation or any Governmental Entity, during
the period from the date of this Agreement to the Effective
Time,
35
Harbor shall not, nor shall Harbor permit any of their
respective Subsidiaries to, without the prior written consent of
Provident, which consent shall not be unreasonably withheld:
(a) other than in the ordinary course of business,
incur any indebtedness for borrowed money, assume, guarantee,
endorse or otherwise as an accommodation become responsible for
the obligations of any other individual, corporation or other
entity, or make any loan or advance (it being understood and
agreed that incurrence of indebtedness in the ordinary course of
business shall include, without limitation, the creation of
deposit liabilities, borrowings from the Federal Home Loan Bank,
sales of certificates of deposit and entering into repurchase
agreements);
(b) (i) adjust, split, combine or reclassify any
capital stock;
(ii) make, declare or pay any dividend, or
make any other distribution on its capital stock (except for
regular quarterly cash dividends at a rate not in excess of
$0.13 per share of Harbor Common Stock and dividends paid by any
of the Subsidiaries for the purpose of enabling Harbor to pay
such dividends);
(iii) grant any stock appreciation rights or any
limited rights under the Harbor Option Plan or grant any
individual, corporation or other entity any right to acquire any
shares of its capital stock; or
(iv) issue any additional shares of capital
stock or any securities or obligations convertible or
exercisable for any shares of its capital stock except pursuant
to the exercise of stock options outstanding as of the date
hereof;
(c) sell, transfer, mortgage, encumber or
otherwise dispose of any of its material properties or assets to
any individual, corporation or other entity other than a
Subsidiary, or cancel, release or assign any indebtedness to any
such person or any claims held by any such person, except in the
ordinary course of business or pursuant to contracts or
agreements in force at the date of this Agreement;
(d) except pursuant to contracts or agreements in
force at the date of or permitted by this Agreement, make any
equity investment, either by purchase of stock or securities,
contributions to capital, property transfers, or purchase of any
property or assets of any other individual, corporation or other
entity;
(e) enter into, renew, amend or terminate any
contract or agreement, or make any change in any of its leases
or contracts, other than with respect to those involving
aggregate payments of less than, or the provision of goods or
services with a market value of less than, $20,000 per annum and
other than contracts or agreements covered by Section 3.2(f);
36
(f) make, renegotiate, renew, increase, extend,
modify or purchase any loan, lease (credit equivalent), advance,
credit enhancement or other extension of credit, or make any
commitment in respect of any of the foregoing, except (i) in
conformity with existing lending practices in amounts not to
exceed an aggregate of $300,000 with respect to any individual
borrower, or (ii) loans or advances as to which Harbor has a
binding obligation to make such loan or advances as of the date
hereof;
(g) except for loans or extensions of credit made
on terms generally available to the public, make or increase any
loan or other extension of credit, or commit to make or increase
any such loan or extension of credit, to any director or
executive officer of Harbor or Harbor Federal, or any entity
controlled, directly or indirectly, by any of the foregoing,
other than renewals of existing loans or commitments to loan;
(h) (i) increase in any manner the compensation
or fringe benefits of any of its employees or directors other
than in the ordinary course of business consistent with past
practice and pursuant to policies currently in effect, or pay
any bonus, pension, retirement allowance or contribution not
required by any existing plan or agreement to any such employees
or directors;
(ii) become a party to, amend or commit
itself to any pension, retirement, profit-sharing or welfare
benefit plan or agreement or employment agreement with or for
the benefit of any employee or director;
(iii) voluntarily accelerate the vesting of, or
the lapsing of restrictions with respect to, any stock options
or other stock-based compensation; or
(iv) elect to any senior executive office any
person who is not a member of the senior executive officer team
of Harbor as of the date of this Agreement or elect to the Board
of Directors of Harbor any person who is not a member of the
Board of Directors of Harbor as of the date of this Agreement,
or hire any employee with annual compensation in excess of
$50,000;
(i) settle any claim, action or proceeding
involving payment by it of money damages in excess of $25,000 or
impose any material restriction on its operations or the
operations of any of its Subsidiaries;
(j) amend its articles of incorporation or its
bylaws;
(k) restructure or materially change its
investment securities portfolio or its gap position, through
purchases, sales or otherwise, or the manner in which the
portfolio is classified or reported;
37
(l) make any investment in any debt security,
including mortgage-backed and mortgage-related securities, other
than U.S. government and U.S. government agency securities with
final maturities not greater than five years;
(m) make any capital expenditures other than
pursuant to binding commitments existing on the date hereof and
other than expenditures necessary to maintain existing assets in
good repair or to make payment of necessary taxes;
(n) establish or commit to the establishment of
any new branch or other office facilities or file any
application to relocate or terminate the operation of any
banking office;
(o) take any action that is intended or expected
to result in any of its representations and warranties set forth
in this Agreement being or becoming untrue in any material
respect at any time prior to the Effective Time, or in any of
the conditions to the Merger set forth in Article V not being
satisfied or in a violation of any provision of this Agreement;
(p) engage in any transaction that is not in the
usual and ordinary course of business and consistent with past
practices;
(q) implement or adopt any change in its
accounting principles, practices or methods, other than as may
be required by GAAP or regulatory guidelines;
(r) knowingly take any action that would prevent
or impede the Merger from qualifying as a reorganization within
the meaning of Section 368 of the IRC; or
(s) agree to take, make any commitment to take, or
adopt any resolutions of its board of directors in support of,
any of the actions prohibited by this Section 3.2.
Any request by Harbor or response thereto by
Provident shall be made in accordance with the notice provisions
of Section 8.7 and shall note that it is a request pursuant to
this Section 3.2.
Section 3.3. Conduct of Provident's Business Prior
-------------------------------------
to the Effective Time. Except as expressly provided in this
- ---------------------
Agreement, during the period from the date of this Agreement to
the Effective Time, Provident shall, and shall cause each of its
Subsidiaries to, use commercially reasonable efforts to (i)
conduct its business in the regular, ordinary and usual course
consistent with past practice, (ii) maintain and preserve intact
its business organization, properties, leases, employees and
advantageous business relationships and retain the services of
its officers and key employees, (iii) take no action that would
adversely affect or delay the ability of Provident or Harbor to
perform their respective covenants and agreements on a timely
basis under this Agreement, (iv) take no action that would
adversely affect or delay the ability of Provident, Provident
Bank, Harbor or Harbor Federal to obtain any necessary
approvals, consents or waivers of any governmental authority
required for the transactions contemplated hereby; and (v)
38
take not action that results in, or is reasonably likely to
have, a Material Adverse Effect on Provident or Provident Bank.
Section 3.4. Forbearance by Provident. Without
------------------------
limiting the covenants set forth in Section 3.3 hereof, except
as expressly contemplated or permitted by this Agreement, and
except to the extent required by law or regulation or any
Governmental Entity, during the period from the date of this
Agreement to the Effective Time, Provident shall not, nor shall
Provident permit any of its Subsidiaries to, without the prior
written consent of Harbor:
(a) take any action that is intended to or expected
to result in any of its representations and warranties set forth
in this Agreement being or becoming untrue in any material
respect at any time prior to the Effective Time, or in any of
the conditions to the Merger set forth in Article V not being
satisfied or in a violation of any provision of this Agreement;
(b) knowingly take any action that would prevent
or impede the Merger from qualifying as a reorganization withing
the meaning of Section 368 of the IRC; or
(c) agree to take, make any commitment to take, or
adopt any resolutions of its Board of Directors in support of,
any of the actions prohibited by this Section 3.4.
ARTICLE IV
COVENANTS
---------
Section 4.1. Acquisition Proposals. From
---------------------
and after the date hereof until the termination of this
Agreement, Harbor agrees that neither it nor any of its
Subsidiaries nor any of the officers and directors of it or its
Subsidiaries shall, and that it shall use its reasonable best
efforts to cause its and its Subsidiaries' employees,
representatives, agents or affiliates (including, without
limitation, any investment banker, attorney or accountant
retained by it or any of its Subsidiaries) not to, directly or
indirectly, initiate, solicit or knowingly encourage (including
by way of furnishing non-public information or assistance), or
facilitate knowingly, any inquiries or the making of any
proposal that constitutes, or may reasonably be expected to lead
to, any Acquisition Proposal (as defined in Section 8.1), or
enter into or maintain or continue discussions or negotiate with
any person or entity in furtherance of such inquiries or to
obtain an Acquisition Proposal or agree to or endorse any
Acquisition Proposal, or authorize or permit any of its
officers, directors or employees or any of its Subsidiaries or
any investment banker, financial advisor, attorney, accountant
or other representative retained by any of its Subsidiaries to
take any such action, and that it shall notify Provident orally
(within 24 hours) and in writing (as promptly as practicable,
but in no event later than 2 calendar days) of such inquiries
and proposals (including, without limitation, the terms and
conditions of any such Acquisition Proposal and the identity of
the person making such Acquisition Proposal) which it or any of
its Subsidiaries or any such officer, director, employee,
investment banker, financial advisor, attorney, accountant or
other representative may receive relating to any of such matters
(and shall keep Provident informed of the status and details of
any such Acquisition Proposal) and, if such inquiry or proposal
39
is in writing, it shall deliver to Provident a copy of such
inquiry or proposal promptly; provided, however, that nothing
contained in this Section 4.1 shall prohibit the Board of
Directors of Harbor from:
(a) furnishing information to, or entering into
discussions or negotiations with any person or entity that makes
an unsolicited written, bona fide proposal to acquire Harbor
pursuant to a merger, consolidation, share exchange, business
combination, tender or exchange offer or other similar
transaction, if, and only to the extent that:
(i) the Board of Directors, after consultation
with its independent financial advisor, determines that such
proposal may be superior to the Merger from a financial
point-of-view to Harbor's stockholders;
(ii) the Board of Directors, after consultation
with independent legal counsel, determines in good faith that
such action is necessary for the Board of Directors to comply
with its fiduciary duties to stockholders under applicable law
(such proposal that satisfies (i) and (ii) being referred to
herein as a "SUPERIOR PROPOSAL"); and
(iii) prior to furnishing such information to,
or entering into discussions or negotiations with, such person
or entity, it:
(A) provides prompt notice to Provident to
the effect that it is furnishing information to, or entering
into discussions or negotiations with, another party; and
(B) receives from such person or entity an
executed confidentiality agreement in reasonably customary form;
(b) complying with Rule 14e-2 promulgated under
the Exchange Act with regard to a tender or exchange offer; or
(c) failing to make or withdrawing or modifying
its recommendation and entering into a Superior Proposal if
there exists a Superior Proposal and the Board of Directors
determines in good faith that such action is necessary for the
Board of Directors to comply with its fiduciary duties to
stockholders under applicable law.
Section 4.2. Certain Policies and Actions of Harbor.
--------------------------------------
At the request of Provident, Harbor shall cause Harbor
Federal to modify and change its loan, litigation and real
estate valuation policies and practices (including loan
classifications and levels of reserves) and investment and
asset/liability management policies and practices so as to be
consistent with those of Provident Bank; provided, however, that
Harbor shall not be required to take such action prior to the
date on which all regulatory and stockholder approvals required
to consummate the transactions contemplated hereby are received,
and until after receipt of written confirmation from Provident
that it is not aware of any fact or circumstance that would
prevent completion of the Merger, and provided, further, that
such policies and procedures are not prohibited by GAAP or any
applicable laws and regulations. Harbor's representations,
warranties and covenants
40
contained in this Agreement shall not be deemed to be untrue or
breached in any respect for any purpose as a consequence of any
modifications or changes undertaken solely on account of this
Section 4.2.
Section 4.3. Access and Information.
----------------------
(a) Upon reasonable notice, Harbor shall (and
shall cause Harbor Federal to) afford Provident and its
representatives (including, without limitation, directors,
officers and employees of Provident and its affiliates and
counsel, accountants and other professionals retained by
Provident) such reasonable access during normal business hours
throughout the period prior to the Effective Time to the books,
records (including, without limitation, tax returns and work
papers of independent auditors), contracts, properties,
personnel and to such other information relating to Harbor and
Harbor Federal as Provident may reasonably request; provided,
however, that no investigation pursuant to this Section 4.3shall
affect or be deemed to modify any representation or
warranty made by Harbor in this Agreement. Notwithstanding the
foregoing, neither Harbor nor any of its Subsidiaries shall be
required to provide access to or disclose information where such
access or disclosure would jeopardize any attorney-client
privilege. In furtherance, and not in limitation of the
foregoing, Harbor shall make available to Provident all
information necessary and appropriate for the preparation and
filing of all real property and real estate transfer tax returns
and reports required by reason of the Merger or the Bank Merger.
(b) Harbor shall provide Provident with true,
correct and complete copies of all financial and other
information relating to the business or operations of Harbor or
Harbor Federal that is provided to directors of Harbor and
Harbor Federal in connection with meetings of their Boards of
Directors or committees thereof.
(c) As soon as reasonably available, but in no
event more than 45 days after the end of each fiscal quarter
(and 90 days in the case of the fourth fiscal quarter), Harbor
shall deliver to Provident its Quarterly and Annual Reports, as
filed with the SEC under the Exchange Act. Harbor shall deliver
to Provident any Current Reports on Form 8-K promptly after
filing such reports with the SEC and shall provide Provident
with a copy of any press release promptly after such release is
made available to the public.
(d) Provident will not, and will cause its
representatives not to, use any information obtained pursuant to
this Section 4.3 for any purpose unrelated to the consummation
of the transactions contemplated by this Agreement. Subject to
the requirements of applicable law, Provident will keep
confidential, and will cause its representatives to keep
confidential, all information and documents obtained pursuant to
this Section 4.3 unless such information (i) was already known
to Provident or an affiliate of Provident, other than pursuant
to a confidentiality agreement or other confidential
relationship, (ii) becomes available to Provident or an
affiliate of Provident from other sources not known by such
party to be bound by a confidentiality agreement or other
obligation of secrecy, (iii) is disclosed with the prior written
approval of Harbor or (iv) is or becomes readily ascertainable
from published information or trade sources.
41
(e) During the period of time beginning on the day
application materials to obtain the requisite regulatory
approvals for the Merger are initially filed and continuing to
the Effective Time, including weekends and holidays, Harbor
shall cause Harbor Federal to provide Provident and Provident
Bank and their authorized agents and representatives full access
to Harbor Federal offices after normal business hours for the
purpose of installing necessary wiring and equipment to be
utilized by Provident Bank after the Effective Time; provided,
that:
(i) reasonable advance notice of each entry
shall be given to Harbor Federal and Harbor Federal approves of
each entry, which approval shall not be unreasonably withheld;
(ii) Harbor shall consent to the scope of
work to be performed, which consent shall not be unreasonably
withheld;
(iii) Harbor Federal shall have the right to
have its employees or contractors present to inspect the work
being done;
(iv) to the extent practicable, such work
shall be done in a matter that will not interfere with Harbor
Federal's business conducted at any affected branch offices;
(v) all such work shall be done in
compliance with all applicable laws and government regulations,
and Provident Bank shall be responsible for the procurement, at
Provident Bank's expense, of all required governmental or
administrative permits and approvals;
(vi) Provident Bank shall maintain
appropriate insurance satisfactory to Harbor Federal in
connection with any work done by Provident Bank's agents and
representatives pursuant to this Section 4.3;
(vii) Provident Bank shall reimburse Harbor
Federal for any material out-of-pocket costs or expenses
reasonably incurred by Harbor Federal in connection with this
undertaking, including, without limitation, employee overtime
expense; and
(viii) in the event this Agreement is
terminated in accordance with Article VI hereof, Provident Bank,
within a reasonable time period and at its sole cost and
expense, will restore such offices to their condition prior to
the commencement of any such installation.
Section 4.4. Applications; Consents.
----------------------
(a) As soon as practicable after the date hereof,
Provident shall use its reasonable best efforts to prepare and
file all necessary applications, notices and filings to obtain
all permits, consents, approvals and authorizations of all third
parties and Governmental Entities that are necessary or
advisable to consummate the transactions contemplated by this
Agreement. Harbor shall furnish Provident with all information
concerning Harbor's and its Subsidiaries'
42
directors, officers and stockholders and such other matters as
may be reasonably necessary or advisable in connection with any
application, notice or filing made by or on behalf of Provident
to any Governmental Entity in connection with the transactions
contemplated by this Agreement and the Plan of Bank Merger.
Provident shall permit Harbor and its counsel a reasonable
opportunity to review and comment upon such applications prior
to filing same.
(b) As soon as practicable after the date hereof,
each of the parties hereto shall, and they shall cause their
respective subsidiaries to, use its best efforts to obtain any
consent, authorization or approval of any third party that is
required to be obtained in connection with the Merger and the
Bank Merger.
Section 4.5. Antitakeover Provisions.
-----------------------
Harbor and its Subsidiaries shall take all steps required by any
relevant federal or state law or regulation or under any
relevant agreement or other document to exempt or continue to
exempt Provident, Provident Bank, the Agreement, the Plan of
Bank Merger and the Merger from any provisions of an
antitakeover nature in Harbor's or its Subsidiaries' articles of
incorporation and bylaws, or similar organizational documents,
and the provisions of any federal or state antitakeover laws.
Section 4.6. Additional Agreements.
---------------------
Subject to the terms and conditions herein provided, each of the
parties hereto agrees to use all reasonable efforts to take
promptly, or cause to be taken promptly, all actions and to do
promptly, or cause to be done promptly, all things necessary,
proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by
this Agreement as expeditiously as possible, including using
efforts to obtain all necessary actions or non-actions,
extensions, waivers, consents and approvals from all applicable
Governmental Entities, effecting all necessary registrations,
applications and filings (including, without limitation, filings
under any applicable state securities laws) and obtaining any
required contractual consents and regulatory approvals.
Section 4.7. Publicity. The initial press
---------
release announcing this Agreement shall be a joint press release
and thereafter Harbor and Provident shall consult with each
other prior to issuing any press releases or otherwise making
public statements with respect to the Merger and any other
transaction contemplated hereby and in making any filings with
any Governmental Entity or with any national securities exchange
or market with respect thereto; provided, however, that nothing
in this Section 4.7 shall be deemed to prohibit any party from
making any disclosure which its counsel deems necessary in order
to satisfy such party's disclosure obligations imposed by law.
Section 4.8. Stockholder Meeting. Harbor
-------------------
shall take all action necessary, in accordance with applicable
law and its articles of incorporation and bylaws, to convene a
meeting of its stockholders (the "STOCKHOLDER MEETING") as
promptly as practicable for the purpose of considering and
voting on approval and adoption of the transactions provided for
in this Agreement. Except to the extent legally required for
the discharge by the Board of Directors of its fiduciary duties,
Harbor's Board of Directors shall (i) recommend at its
Stockholder Meeting that the Harbor stockholders vote in favor
of and approve the transactions provided for
43
in this Agreement and (ii) use its reasonable best efforts to
solicit such approvals. Harbor shall coordinate and cooperate
with Provident with respect to the timing of the Stockholder
Meeting.
Section 4.9. Registration of Provident Common Stock.
--------------------------------------
(a) As promptly as reasonably practicable following
the date hereof, Provident and Harbor shall cooperate in
preparing a Proxy Statement-Prospectus relating to the
matters to be submitted to the Harbor stockholders at the Harbor
Stockholder Meeting (such proxy statement/prospectus, and any
amendments or supplements thereto, the "PROXY STATEMENT-
PROSPECTUS") and Provident shall prepare and file with the SEC a
registration statement on Form S-4 with respect to the issuance
of Provident Common Stock in the Merger (such Form S-4, and any
amendments or supplements thereto, the "REGISTRATION
STATEMENT"). The Proxy Statement-Prospectus will be included as
a prospectus in and will constitute a part of the Registration
Statement as Provident's prospectus. Each of Provident and
Harbor shall use reasonable best efforts to have the Proxy
Statement-Prospectus cleared by the SEC and the Registration
Statement declared effective by the SEC and to keep the
Registration Statement effective as long as is necessary to
consummate the Merger and the transactions contemplated
thereby. Provident and Harbor shall, as promptly as practicable
after receipt thereof, provide the other party copies of any
written comments and advise the other party of any oral
comments, with respect to the Proxy Statement-Prospectus or
Registration Statement received from the SEC. The parties shall
cooperate and provide the other with a reasonable opportunity to
review and comment on any amendment or supplement to the Proxy
Statement-Prospectus and the Registration Statement prior to
filing such with the SEC, and will provide each other with a
copy of all such filings made with the SEC. Harbor will use
reasonable best efforts to cause the Proxy Statement-Prospectus
to be mailed to Harbor's stockholders as promptly as practicable
after the Registration Statement is declared effective under the
Securities Act. Provident will advise Harbor, promptly after it
receives notice thereof, of the time when the Registration
Statement has become effective, the issuance of any stop order,
the suspension of the qualification of the Provident Common
Stock issuable in connection with the Merger for offering or
sale in any jurisdiction, or any request by the SEC for
amendment of the Proxy Statement-Prospectus or the Registration
Statement. If at any time prior to the Effective Time any
information relating to Provident or Harbor, or any of their
respective affiliates, officers or directors, should be
discovered by Provident or Harbor which should be set forth in
an amendment or supplement to any of the Registration Statement
or the Proxy Statement-Prospectus so that any of such documents
would not include any misstatement of a material fact or omit to
state any material fact necessary to make the statements
therein, in light of the circumstances under which they
were made, not misleading, the party which discovers such
information shall promptly notify the other party hereto and, to
the extent required by law, rules or regulations, an appropriate
amendment or supplement describing such information shall be
promptly filed with the SEC and disseminated to Harbor's
stockholders.
(b) Provident shall also take any action required to
be taken under any applicable state securities laws in
connection with the Merger and each of Harbor and Provident
44
shall furnish all information concerning it and the holders of
Harbor Common Stock as may be reasonably requested in connection
with any such action.
(c) Prior to the Effective Time, Provident shall
notify the Nasdaq National Market of the additional shares of
Provident Common Stock to be issued by Provident in exchange for
the shares of Harbor Common Stock.
Section 4.10. Affiliate Letters. Harbor
-----------------
shall use its best efforts to cause each director, executive
officer and other person who is an "affiliate" of Harbor under
Rule 145 of the Securities Act to deliver to Provident as soon
as practicable and prior to the mailing of the Proxy Statement-
Prospectus executed letter agreements, each substantially in the
form attached hereto as Exhibit B, providing that such person
will comply with Rule 145.
Section 4.11. Notification of Certain Matters.
-------------------------------
Each party shall give prompt notice to the other of: (i) any
event or notice of, or other communication relating to,
a default or event that, with notice or lapse of time or both,
would become a default, received by it or any of its
Subsidiaries subsequent to the date of this Agreement and prior
to the Effective Time, under any contract material to the
financial condition, properties, businesses or results of
operations of each party and its Subsidiaries taken as a whole
to which each party or any Subsidiary is a party or is subject;
and (ii) any event, condition, change or occurrence which
individually or in the aggregate has, or which, so far as
reasonably can be foreseen at the time of its occurrence, is
reasonably likely to result in a Material Adverse Effect. Each
of Harbor and Provident shall give prompt notice to the other
party of any notice or other communication from any third party
alleging that the consent of such third party is or may be
required in connection with any of the transactions contemplated
by this Agreement.
Section 4.12. Employees, Directors and Officers.
---------------------------------
(a) All persons who are employees of Harbor Federal
immediately prior to the Effective Time and whose employment is
not specifically terminated at or prior to the Effective Time (a
"CONTINUING EMPLOYEE") shall, at the Effective Time, become
employees of Provident Bank; provided, however, that in no event
shall any of Harbor's employees be officers of Provident Bank,
or have or exercise any power or duty conferred upon such an
officer, unless and until duly elected or appointed to such
position in accordance with the bylaws of Provident Bank. All
of the Continuing Employees shall be employed at the will of
Provident Bank and no contractual right to employment shall
inure to such employees because of this Agreement.
(b) As soon as administratively practicable
following the Effective Time, each Continuing Employee shall be
eligible to participate in the Provident Bank 401(k) Plan and
Provident Pension Plan with full credit for prior service with
Harbor and Harbor Federal for purposes of eligibility and
vesting, but not for purposes of benefit accruals. As of the
Effective Time, Provident shall make available employer-provided
health and other employee welfare benefit plans to each
Continuing Employee on the same basis as it provides such
coverage to Provident employees except that any pre-existing
condition, eligibility waiting period or other
45
limitations or exclusions otherwise applicable under such plans
to new employees shall not apply to a Continuing Employee or
their covered dependents who were covered under a similar Harbor
plan on the Effective Date of the Merger.
(c) The foregoing subparagraph (b) notwithstanding,
Provident agrees to honor in accordance with their terms all
benefits vested as of the Effective Time under the Harbor
Employee Plans and all vested benefits or other vested amounts
earned or accrued through such time under contracts, arrangement
commitments or understandings described in Harbor's Disclosure
Letter, including benefits which vest or are otherwise accrued
as a result of the consummation of the transactions contemplated
by this Agreement.
(d) The Harbor Employee Stock Ownership Plan
("HARBOR ESOP") shall be terminated as of, or prior to, the
Effective Time. As of the Effective Time, all shares held by
the Harbor ESOP shall be converted into the right to receive the
Merger Consideration. As soon as administratively practicable
following the Effective Time, all outstanding indebtedness of
the Harbor ESOP shall be repaid in full and the balance
remaining with respect to unallocated shares previously held by
the Harbor ESOP shall be allocated and distributed to Harbor
ESOP participants as provided in the Harbor ESOP, subject to
receipt of a favorable determination letter from the IRS and
unless otherwise required by applicable law. The Harbor Money
Purchase Defined Contribution Pension Plan ("HARBOR PENSION
PLAN") shall be terminated as of, or prior to, the Effective
Time and, subject to receipt of a favorable determination letter
from the IRS, distributions shall be made to participants as
provided in the plan.
(e) At the Effective Time, the employees of Harbor
shall be eligible for the payment of bonuses for 2000 pursuant
to Harbor's existing bonus program; provided, however, that the
aggregate bonus payments to be made to Harbor's employees
pursuant to this provision shall in no event be greater than the
amount Harbor has accrued for such bonus payments as of the
Effective Time, and Harbor shall accrue no more than $19,000 per
month for such bonus payments for each month beginning January,
2000 through the Effective Time.
Section 4.13. Indemnification.
---------------
(a) From and after the Effective Time through the
fifth anniversary of the Effective Date, Provident agrees to
indemnify and hold harmless each present and former director and
officer of Harbor and its Subsidiaries and each officer or
employee of Harbor and its Subsidiaries that is serving or has
served as a director or trustee of another entity expressly at
Harbor's request or direction (each, an "INDEMNIFIED PARTY"),
against any costs or expenses (including reasonable attorneys'
fees), judgments, fines, amounts paid in settlement, losses,
claims, damages or liabilities (collectively, "COSTS") incurred
in connection with any claim, action, suit, proceeding or
investigation, whether civil, criminal, administrative or
investigative, arising out of matters existing or occurring at
or prior to the Effective Time (including the transactions
contemplated by this Agreement), whether asserted or claimed
prior to, at or after
46
the Effective Time, and to advance any such Costs to each
Indemnified Party as they are from time to time incurred, in
each case to the fullest extent such Indemnified Party would
have been indemnified as a director, officer or employee of
Harbor and its Subsidiaries and as then permitted under
applicable law.
(b) Any Indemnified Party wishing to claim
indemnification under Section 4.13(a), upon learning of any such
claim, action, suit, proceeding or investigation, shall promptly
notify Provident thereof, but the failure to so notify shall not
relieve Provident of any liability it may have hereunder to such
Indemnified Party if such failure does not materially and
substantially prejudice Provident. In the event of any such
claim, action, suit, proceeding or investigation, (i) Provident
shall have the right to assume the defense thereof with counsel
reasonably acceptable to the Indemnified Party and Provident
shall not be liable to such Indemnified Party for any legal
expenses of other counsel subsequently incurred by such
Indemnified Party in connection with the defense thereof, except
that if Provident does not elect to assume such defense within a
reasonable time or counsel for the Indemnified Party at any time
advises that there are issues which raise conflicts of interest
between Provident and the Indemnified Party (and counsel for
Provident does not disagree), the Indemnified Party may retain
counsel satisfactory to such Indemnified Party, and Provident
shall remain responsible for the reasonable fees and expenses of
such counsel as set forth above, to be paid promptly as
statements therefor are received; provided, however, that
Provident shall be obligated pursuant to this paragraph (b) to
pay for only one firm of counsel for all Indemnified Parties in
any one jurisdiction with respect to any given claim, action,
suit, proceeding or investigation unless the use of one counsel
for such Indemnified Parties would present such counsel with a
conflict of interest; (ii) the Indemnified Party will reasonably
cooperate in the defense of any such matter; and (iii) Provident
shall not be liable for any settlement effected by an
Indemnified Party without its prior written consent, which
consent may not be withheld unless such settlement is
unreasonable in light of such claims, actions, suits,
proceedings or investigations against, or defenses available to,
such Indemnified Party.
(c) Provident shall pay all reasonable Costs,
including attorneys' fees, that may be incurred by any
Indemnified Party in successfully enforcing the indemnity and
other obligations provided for in this Section 4.13 to the
fullest extent permitted under applicable law. The rights of
each Indemnified Party hereunder shall be in addition to any
other rights such Indemnified Party may have under applicable
law.
(d) Provident shall maintain Harbor's existing
directors' and officers' liability insurance policy (or provide
a policy providing comparable coverage and amounts on terms no
less favorable to the persons currently covered by Harbor's
existing policy, including Provident's existing policy if it
meets the foregoing standard) covering persons who are currently
covered by such insurance for a period of three years after the
Effective Time; provided, however, that in no event shall
Provident be obligated to expend, in order to maintain or
provide insurance coverage pursuant to this Section 4.13(d), an
amount per annum in excess of 125% of the amount of the annual
premiums paid by Harbor as of the date hereof for such insurance
("MAXIMUM INSURANCE AMOUNT"); provided further, that if the
amount of the annual premiums necessary to
47
maintain or procure such insurance coverage exceeds the Maximum
Insurance Amount, Provident shall obtain the most advantageous
coverage obtainable for an annual premium equal to the Maximum
Insurance Amount.
(e) In the event Provident or any of its successors
or assigns (i) consolidates with or merges into any other person
or entity and shall not be the continuing or surviving
corporation or entity of such consolidation or merger, or (ii)
transfers or conveys all or substantially all of its properties
and assets to any person or entity, then, and in each such case,
to the extent necessary, proper provision shall be made so that
the successors and assigns of Provident assume the obligations
set forth in this Section 4.13.
(f) The provisions of this Section 4.13 are intended
to be for the benefit of, and shall be enforceable by, each
Indemnified Party and his or her representatives.
Section 4.14. Dividends. After the date of
---------
this Agreement, each of Harbor and Provident shall coordinate
with the other the declaration of any dividends in respect of
Harbor Common Stock and Provident Common Stock and the record
dates and payment dates relating thereto, it being the intention
of the parties hereto that holders of Harbor Common Stock shall
not receive two dividends, or fail to receive one dividend, for
any quarter with respect to their shares of Harbor Common Stock
and any shares of Provident Common Stock any such holder
receives in exchange therefor in the Merger.
Section 4.15. Section 16 Matters. Prior to
------------------
the Effective Time, Harbor and Provident shall take all such
steps as may be required to cause any dispositions of Harbor
Common Stock (including derivative securities with respect to
Harbor Common Stock) or acquisitions of Provident Common Stock
resulting from the transactions contemplated by this Agreement
by each individual who is subject to the reporting requirements
of Section 16(a) of the Exchange Act with respect to Harbor to
be exempt under Rule 16b-3 promulgated under the Exchange Act.
Harbor agrees to promptly furnish Provident with all requisite
information necessary for Provident to take the actions
contemplated by this Section 4.15.
ARTICLE V
CONDITIONS TO CONSUMMATION
--------------------------
Section 5.1. Conditions to Each Party's
--------------------------
Obligations. The respective obligations of each party to effect
- -----------
the Merger shall be subject to the satisfaction of the following
conditions:
(a) Stockholder Approval. This Agreement shall
--------------------
have been approved by the requisite vote of Harbor's
stockholders in accordance with applicable laws and regulations.
(b) Regulatory Approvals. All approvals, consents
--------------------
or waivers of any Governmental Entity required to permit
consummation of the transactions contemplated by this Agreement
shall have been obtained and shall remain in full force and
effect, and all statutory waiting periods shall have expired;
provided, however, that none of such approvals, consents or
48
waivers shall contain any condition or requirement that would so
materially and adversely impact the economic or business
benefits to Provident of the transactions contemplated hereby
that, had such condition or requirement been known, Provident
would not, in its reasonable judgment, have entered into this
Agreement.
(c) No Injunctions or Restraints; Illegality. No
----------------------------------------
party 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 Merger or the Bank Merger and
no Governmental Entity shall have instituted any proceeding for
the purpose of enjoining or prohibiting the consummation of the
Merger or the Bank Merger or any transactions contemplated by
this Agreement. No statute, rule or regulation shall have been
enacted, entered, promulgated or enforced by any Governmental
Entity which prohibits, restricts or makes illegal consummation
of the Merger.
(d) Registration Statement; Blue Sky Laws. The
-------------------------------------
Registration Statement shall have been declared effective by the
SEC and no proceedings shall be pending or threatened by the SEC
to suspend the effectiveness of the Registration Statement, and
Provident shall have received all required approvals by state
securities or "blue sky" authorities with respect to the
transactions contemplated by this Agreement.
(e) Third Party Consents. Provident and Harbor
--------------------
shall have obtained the consent or approval of each person
(other than the governmental approvals or consents referred to
in Section 5.1(b)) whose consent or approval shall be required
to consummate the transactions contemplated by this Agreement,
except those for which failure to obtain such consents and
approvals would not, individually or in the aggregate, have a
Material Adverse Effect on Provident (after giving effect to the
consummation of the transactions contemplated hereby) or upon
the consummation of the transactions contemplated hereby.
(f) Tax Opinion. Provident and Harbor shall have
-----------
received opinions of Muldoon, Murphy & Faucette LLP and Stradley
Ronon Housley Kantarian & Bronstein, LLP, respectively, dated as
of the Effective Date, in form and substance customary in
transactions of the type contemplated hereby, and reasonably
satisfactory to Harbor and Provident, as the case may be,
substantially to the effect that on the basis of the facts,
representations and assumptions set forth in such opinions which
are consistent with the state of facts existing at the Effective
Time, the Merger will be treated for federal income tax purposes
as a reorganization within the meaning of Section 368(a) of the
IRC and that accordingly:
(i) No gain or loss will be recognized by
Provident or Harbor as a result of the Merger;
(ii) Except to the extent of any cash
received in lieu of a fractional share interest in Provident
Common Stock, no gain or loss will be recognized by the
stockholders of Harbor who exchange their Harbor Common Stock
for Provident Common Stock pursuant to the Merger;
49
(iii) The tax basis of Provident Common Stock
received by stockholders who exchange their Harbor Common Stock
for Provident Common Stock in the Merger will be the same as the
tax basis of Harbor Common Stock surrendered pursuant to the
Merger, reduced by any amount allocable to a fractional share
interest for which cash is received and increased by any gain
recognized on the exchange; and
(iv) The holding period of Provident Common
Stock received by each stockholder in the Merger will include
the holding period of Harbor Common Stock exchanged therefor,
provided that such stockholder held such Harbor Common Stock as
a capital asset on the Effective Date.
Such opinions may be based on, in addition to the
review of such matters of fact and law as counsel considers
appropriate, representations contained in certificates of
officers of Provident, Harbor and others.
Section 5.2. Conditions to the Obligations
-----------------------------
of Provident. The obligations of Provident to effect the Merger
- ------------
shall be further subject to the satisfaction of the following
additional conditions, any one or more of which may be waived by
Provident:
(a) Representations and Warranties; Performance of
----------------------------------------------
Obligations. Each of the obligations of Harbor required to be
- -----------
performed by it at or prior to the Closing pursuant to the terms
of this Agreement shall have been duly performed and complied
with in all material respects and the representations and
warranties of Harbor contained in this Agreement shall be true
and correct as of the date of this Agreement and as of the
Effective Time as though made at and as of the Effective Time
(except as to any representation or warranty that specifically
relates to an earlier date), and Provident shall have received a
certificate to the foregoing effect signed by the chief
executive officer and the chief financial or principal
accounting officer of Harbor; provided, however, that for
purposes of this paragraph, such representations and warranties
shall be deemed to be true and correct unless the failure or
failures of such representations and warranties to be so true
and correct, either individually or in the aggregate, and
without giving effect to any qualification as to materiality set
forth in such representations and warranties, will have a
Material Adverse Effect on Harbor.
(b) Good Standing and Other Certificates.
------------------------------------
Provident shall have received certificates (such certificates to
be dated as of a day as close as practicable to the Closing
Date) from appropriate authorities as to the corporate existence
of Harbor and its Subsidiaries and such other documents and
certificates to evidence fulfillment of the conditions set forth
in Sections 5.1 and 5.2 as Provident may reasonably require.
(c) Corporate Authorization. All action required
to be taken by, or on the part of, Harbor and Harbor Federal to
authorize the execution, delivery and performance of this
Agreement and the consummation by Harbor and Harbor Federal of
the transactions contemplated thereby shall have been duly and
validly taken by the Board of Directors and
50
stockholders of Harbor or Harbor Federal, as the case may be,
and Provident shall have received certified copies of the
resolutions evidencing such authorization.
Section 5.3. Conditions to the Obligations of
--------------------------------
Harbor. The obligations of Harbor to effect the Merger shall
- ------
be further subject to the satisfaction of the following
additional conditions, any one or more of which may be waived by
Harbor:
(a) Representations and Warranties; Performance of
----------------------------------------------
Obligations. Each of the obligations of Provident required to
- -----------
be performed by it at or prior to the Closing pursuant to the
terms of this Agreement shall have been duly performed and
complied with in all material respects and the representations
and warranties of Provident contained in this Agreement shall be
true and correct as of the date of this Agreement and as of the
Effective Time as though made at and as of the Effective Time
(except as to any representation or warranty which specifically
relates to an earlier date), and Harbor shall have received a
certificate to the foregoing effect signed by the chief
executive officer and the chief financial or principal
accounting officer of Provident; provided, however, that for
purposes of this paragraph, such representations and warranties
shall be deemed to be true and correct unless the failure or
failures of such representations and warranties to be so true
and correct, either individually or in the aggregate, and
without giving effect to any qualification as to materiality set
forth in such representations and warranties, will have a
Material Adverse Effect on Provident.
(b) Good Standing and Other Certificates. Harbor
------------------------------------
shall have received certificates (such certificates to be dated
as of a day as close as practicable to the Closing Date) from
appropriate authorities as to the corporate existence of
Provident and its Subsidiaries and such other documents and
certificates to evidence fulfillment of the conditions set forth
in Sections 5.1 and 5.3 as Harbor may reasonably require.
(c) Corporate Authorization. All action required
-----------------------
to be taken by, or on the part of, Provident and Provident Bank
to authorize the execution, delivery and performance of this
Agreement and the consummation by Provident and Provident Bank
of the transactions contemplated thereby shall have been duly
and validly taken by the Board of Directors and stockholders of
Provident or Provident Bank, as the case may be, and Harbor
shall have received certified copies of the resolutions
evidencing such authorization.
(d) Exchange Agent Certificate. The Exchange
--------------------------
Agent shall have delivered to Harbor a certificate dated as of
the Effective Date to the effect that the Exchange Agent has
received from Provident due authorization to issue certificates
for the required number of shares of Provident Common Stock to
be issued in connection with the Merger and cash to cover
fractional shares.
51
ARTICLE VI
TERMINATION
-----------
Section 6.1. Termination. This Agreement
-----------
may be terminated, and the Merger abandoned, at any time prior
to the Effective Time, either before or after any requisite
stockholder approval:
(a) by the mutual consent of Provident and Harbor
in a written instrument, if the Board of Directors of each so
determines by vote of a majority of the members of its entire
Board; or
(b) by either the Board of Directors of Provident
or Harbor, in the event of the failure of the stockholders of
Harbor to approve the Agreement at its Stockholder Meeting
called to consider such approval; provided, however, that Harbor
shall only be entitled to terminate the Agreement pursuant to
this clause if it has complied in all material respects with its
obligations under Section 4.8; or
(c) by either the Board of Directors of Provident
or Harbor, if either (i) any approval, consent or waiver of a
Governmental Entity required to permit consummation of the
transactions contemplated by this Agreement shall have been
denied or (ii) any Governmental Entity of competent jurisdiction
shall have issued a final, unappealable order enjoining or
otherwise prohibiting consummation of the transactions
contemplated by this Agreement; or
(d) by either the Board of Directors of Provident
or Harbor, in the event that the Merger is not consummated by
December 31, 2000, unless the failure to so consummate by such
time is due to the breach of any representation, warranty or
covenant contained in this Agreement by the party seeking to
terminate; or
(e) by either the Board of Directors of Provident
or Harbor (provided that the party seeking termination is not
then in material breach of any representation, warranty,
covenant or other agreement contained herein), in the event of
(i) a failure to perform or comply by the other party with any
covenant or agreement of such other party contained in this
Agreement, which failure or non-compliance is material in the
context of the transactions contemplated by this Agreement, or
(ii) any inaccuracies, omissions or breach in the
representations, warranties, covenants or agreements of the
other party contained in this Agreement the circumstances as to
which either individually or in the aggregate have, or
reasonably could be expected to have, a Material Adverse Effect
on such other party; in either case which has not been or cannot
be cured within 30 calendar days after written notice thereof is
given by the party seeking to terminate to such other party; or
(f) by the Board of Directors of Provident, if the
Board of Directors of Harbor does not publicly recommend in the
Proxy Statement-Prospectus that Harbor's stockholders approve
and adopt this Agreement or if, after recommending in the Proxy
Statement-Prospectus that Harbor's stockholders approve and
adopt this Agreement, the Harbor Board of Directors
52
withdraws, qualifies or revises such recommendation in any
respect materially adverse to the party seeking to Provident; or
(g) By the Board of Directors of Harbor, if it
determines by a vote of a majority of the members of the Board
of Directors, at any time during the five-day period commencing
two days after the Determination Date, if both of the following
conditions are satisfied:
(i) The Average Closing Price shall be less
than $12.25;
(ii) (A) the quotient obtained by dividing
the Average Closing Price by the Starting Price (such number
being referred to herein as the "Provident Ratio") shall be less
than (B) the quotient obtained by dividing the Index Value on
the Determination Date by the Index Value on the Starting Date
and subtracting 0.15 from such quotient (such number being
referred to herein as the "Index Ratio");
subject, however, to the following three sentences. If Harbor
elects to exercise its termination right pursuant to this
Section 6.1(g), it shall give prompt written notice to
Provident; provided, that such notice of election to terminate
may be withdrawn at any time within the aforementioned five-day
period. During the five-day period commencing with its receipt
of such notice, Provident shall have the option to elect to
increase the Exchange Ratio to equal the lesser of (i) the
quotient obtained by dividing (A) the product of and the
Exchange Ratio (as then in effect) by (B) the Average Closing
Price, and (ii) the quotient obtained by dividing (A) the
product of the Index Ratio and the Exchange Ratio (as then in
effect) by (B) the Provident Ratio. If Provident makes an
election contemplated by the preceding sentence, within such
five-day period, it shall give prompt written notice to Harbor
of such election and the revised Exchange Ratio, whereupon no
termination shall have occurred pursuant to this Section
6.1(g)and this Agreement shall remain in effect in accordance
with its terms (except as the Exchange Ratio shall have been so
modified), and any references in this Agreement to the Exchange
Ratio shall thereafter be deemed to refer to the Exchange Ratio
as adjusted pursuant to this Section 6.1(g).
For purposed of this Section 6.1(g), the following terms
shall have the meanings indicated:
"AVERAGE CLOSING PRICE" shall mean the average of
the daily last sales prices of Provident Common Stock as
reported on the Nasdaq Stock Market (as reported in The
Wall Street Journal) for the 20 consecutive trading days
in which such shares are trading ending at the close of
trading on the Determination Date.
"DETERMINATION DATE" shall be the date on which the
last approval, consent or waiver of any Governmental
Entity required to permit consummation of the transactions
contemplated by this Agreement is received, without regard
to any requisite waiting period in respect thereof.
"INDEX GROUP" shall mean the Standard and Poor's
Regional Bank Index.
53
"INDEX VALUE" on a given date shall mean the value
of the Index.
"STARTING DATE" shall mean the fourth full trading
day after the announcement by press release of the Merger.
"STARTING PRICE" shall mean the closing price per
share of Provident Common Stock as reported on the Nasdaq
Stock Market on the Starting Date.
If Provident declares or effects a stock dividend,
reclassification, recapitalization, split-up, combination or
exchange of shares of similar transaction between the date of
this Agreement and the Determination Date, the prices for
Provident Common Stock shall be appropriately adjusted for the
purposes of applying this Section 6.1(g).
Section 6.2. Termination Fee. In recognition
---------------
of the efforts, expenses and other opportunities foregone by
Provident while structuring the Merger, the parties hereto agree
that:
(a) Harbor shall pay to Provident a termination
fee of Seven Hundred Thousand Dollars ($700,000) plus
Provident's documented, reasonable out-of-pocket expenses
(including fees and expenses of legal, financial and accounting
advisors) in cash on demand if, within 12 months after the date
of this Agreement, after a bona fide proposal is made after the
date of this Agreement by a third party to Harbor or its
stockholders to engage in an Acquisition Transaction (as defined
in Section 8.1), any of the following occur:
(i) Harbor shall have willfully breached any
covenant or obligation contained in this Agreement and such
breach would entitle Provident to terminate the Agreement;
(ii) the stockholders of Harbor shall not
have approved the Agreement at the Stockholder Meeting, such
meeting shall not have been held or shall have been canceled
prior to termination of the Agreement; or
(iii) Harbor's Board of Directors shall have
withdrawn or modified in a manner adverse to Provident the
recommendation of Harbor's Board of Directors with respect to
the Agreement; and
(b) Harbor shall pay to Provident a termination
fee of One Million Five Hundred Thousand Dollars ($1,500,000)
plus Provident's documented, reasonable out-of-pocket expenses
(including fees and expenses of legal, financial and accounting
advisors) in cash on demand if, during a period of 18 months
after the date hereof, Harbor or any of its Subsidiaries,
without having received Provident's prior written consent, shall
have entered into an agreement to engage in an Acquisition
Transaction (as defined in Section 8.1) with any person other
than Provident or any of its Subsidiaries or the Board of
Directors of Harbor shall have recommended that the stockholders
of Provident approve or accept an Acquisition Transaction with
any person other than Provident or any of its Subsidiaries. Any
fee payable to Provident pursuant to this Section 6.2(b) shall
be reduced dollar for dollar to the extent that any fee is
actually paid pursuant
54
to Section 6.2(a). Notwithstanding the foregoing, Harbor shall
not be obligated to pay to Provident the termination fee
described in Section 6.2(a) or Section 6.2(b) in the event that
at or prior to such time as such fee becomes payable (i)
Provident and Harbor validly terminate this Agreement pursuant
to Section 6.1(a), (ii) Provident or Harbor validly terminates
this Agreement pursuant to Sections 6.1(c) or 6.1(d), or (iii)
Harbor validly terminates this Agreement pursuant to Section
6.1(b) or 6.1(e).
Section 6.3. Effect of Termination. In the
---------------------
event of termination of this Agreement by either Provident or
Harbor as provided in Section 6.1, this Agreement shall
forthwith become void and, subject to Section 6.2, have no
effect, and there shall be no liability on the part of any party
hereto or their respective officers and directors, except (i)
Section 4.3 (d), and Sections 8.6 and 8.7, shall survive any
termination of this Agreement, and (ii) that notwithstanding
anything to the contrary contained in this Agreement, no party
shall be relieved or released from any liabilities or damages
arising out of its willful breach of any provision of this
Agreement.
ARTICLE VII
CLOSING, EFFECTIVE DATE AND EFFECTIVE TIME
------------------------------------------
Section 7.1. Effective Date and Effective Time.
---------------------------------
The closing of the transactions contemplated hereby ("CLOSING")
shall take place at the offices of Muldoon, Murphy & Faucette
LLP, 5101 Wisconsin Avenue, N.W., Washington, D.C. 20016,
unless another place is agreed to by Provident and Harbor, on a
date specified by the parties ("CLOSING DATE") that is no later
than 14 days following the date on which the expiration of the
last applicable waiting period in connection with notices to and
approvals of Governmental Entities shall occur and all
conditions to the consummation of this Agreement are satisfied
or waived (excluding conditions that, by their nature, cannot be
satisfied until the Closing Date) unless extended by mutual
agreement of the parties. Prior to the Closing Date, Provident
and Harbor shall execute articles of merger in accordance with
all appropriate legal requirements, which shall be filed as
required by law on the Closing Date, and the Merger provided for
therein shall become effective upon such filing or on such date
as may be specified in such articles of merger. The date of
such filing or such later effective date as specified in the
articles of merger is herein referred to as the "EFFECTIVE
DATE." The "Effective Time" of the Merger shall be as set forth
in the articles of merger.
Section 7.2. DELIVERIES AT THE CLOSING.
-------------------------
Subject to the provisions of Articles V and VI, on the Closing
Date there shall be delivered to Provident and Harbor the
documents and instruments required to be delivered under Article
V.
ARTICLE VIII
CERTAIN OTHER MATTERS
---------------------
Section 8.1. Certain Definitions; Interpretation.
-----------------------------------
For purposes of this Agreement:
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"ACQUISITION PROPOSAL" means any proposal or offer
with respect to any of the following (other than the
transactions contemplated hereunder) involving Harbor or any of
its Subsidiaries: (i) any merger, consolidation, share exchange,
business combination, or other similar transaction; (ii) any
sale, lease, exchange, mortgage, pledge, transfer or other
disposition of 25% or more of its consolidated assets in a
single transaction or series of transactions; (iii) any tender
offer or exchange offer for 25% or more of the outstanding
shares of its capital stock or the filing of a registration
statement under the Securities Act in connection therewith; or
(iv) any public announcement of a proposal, plan or intention to
do any of the foregoing or any agreement to engage in any of the
foregoing;
"ACQUISITION TRANSACTION" means any of the following
(other than the transactions contemplated hereunder) involving
Provident or any of its Subsidiaries: (i) any merger,
consolidation, share exchange, business combination, or other
similar transaction; (ii) any sale, lease, exchange, mortgage,
pledge, transfer or other disposition of 25% or more of its
consolidated assets in a single transaction or series of
transactions; or (iii) any tender offer or exchange offer for
25% or more of the outstanding shares of its capital stock or
the filing of a registration statement under the Securities Act
in connection therewith;
"BANK MERGER ACT" means the Bank Merger Act, as
amended;
"BHC ACT" means the Bank Holding Company Act of 1956,
as amended;
"CRA" means the Community Reinvestment Act;
"ERISA" means the Employee Retirement Income Security
Act of 1974, as
amended;
"ERISA AFFILIATE" means any entity that is considered
one employer with Provident or Harbor, as the case may be, under
Section 4001(b)(1) of ERISA or Section 414 of the IRC;
"EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended;
"EXCLUDED SHARES" shall consist of shares held
directly or indirectly by Provident (other than shares held in a
fiduciary capacity or in satisfaction of a debt previously
contracted);
"FDIA" means the Federal Deposit Insurance Act, as
amended;
"FDIC" means the Federal Deposit Insurance
Corporation;
"FEDERAL RESERVE BOARD" means the Board of Governors
of the Federal Reserve System;
"GAAP" means generally accepted accounting
principles;
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"GOVERNMENT REGULATORS" means any federal or state
governmental authority charged with the supervision or
regulation of depository institutions or depository
institution holding companies or engaged in the insurance of
bank deposits;
"GOVERNMENTAL ENTITY" means any court, administrative
agency or commission or other governmental authority or
instrumentality;
"HARBOR COMMON STOCK" means the common stock, par
value $.01 per share, of Harbor;
"HOLA" means the Home Owners' Loan Act, as amended;
"IRC" means the Internal Revenue Code of 1986, as
amended;
"IRS" means the Internal Revenue Service;
"KNOWLEDGE" means, with respect to a party hereto,
actual knowledge of the members of the Board of Directors of
that party or any officer of that party with the title ranking
not less than senior vice president;
"LOAN" means a loan, lease, advance, credit
enhancement, guarantee or other
extension of credit;
"MATERIAL ADVERSE EFFECT" means an effect which is
material and adverse to the business, financial condition or
results of operations of Harbor or Provident, as the context may
dictate, and its Subsidiaries taken as a whole;
provided,however, that any such effect resulting from any (i)
changes in laws, rules or regulations or generally accepted
accounting principles or regulatory accounting requirements or
interpretations thereof that apply to both Provident and
Provident Bank and Harbor and Harbor Federal, as the case may
be, or to similarly situated financial and/or depository
institutions or (ii) changes in economic conditions affecting
financial institutions generally, including but not limited to,
changes in the general level of market interest rates shall not
be considered in determining if a Material Adverse Effect has
occurred;
"MGCL" means the Maryland General Corporate Law;
"NASD" means the National Association of Securities
Dealers, Inc.;
"OTS" means the Office of Thrift Supervision;
"PERSON" means an individual, corporation, limited
liability company, partnership, association, trust,
unincorporated organization or other entity;
"SEC" means the Securities and Exchange Commission;
57
"SECURITIES ACT" means the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder;
"SUBSIDIARY" means a corporation, partnership, joint
venture or other entity in which Harbor or Provident, as the
case may be, has, directly or indirectly, an equity interest
representing 5% or more of any class of the capital stock
thereof or other equity interests therein;
"TAXES" means all income, franchise, gross receipts,
real and personal property, real property transfer and gains,
wage and employment taxes; and
When a reference is made in this Agreement to
Sections, Exhibits or Schedules, such reference shall be to a
Section of, Exhibit or Schedule to, this Agreement unless
otherwise indicated. The table of contents and headings
contained in this Agreement are for ease of reference only and
shall not affect the meaning or interpretation of this
Agreement. Whenever the words "include," "includes" or
"including" are used in this Agreement, they shall be deemed
followed by the words "without limitation." Any singular term
in this Agreement shall be deemed to include the plural, and any
plural term the singular. Any reference to gender in this
Agreement shall be deemed to include any other gender.
Section 8.2. Survival. Only those agreements
--------
and covenants of the parties that are by their terms applicable
in whole or in part after the Effective Time, including Sections
4.12 and 4.13 of this Agreement, shall survive the Effective
Time. All other representations, warranties, agreements and
covenants shall be deemed to be conditions of the Agreement and
shall not survive the Effective Time.
Section 8.3. Waiver; Amendment. Prior to the
-----------------
Effective Time, any provision of this Agreement may be: (i)
waived in writing by the party benefitted by the provision or
(ii) amended or modified at any time (including the structure of
the transaction) by an agreement in writing between the parties
hereto except that, after the vote by the stockholders of
Harbor, no amendment or modification may be made that would
reduce the amount or alter or change the kind of consideration
to be received by holders of Harbor Common Stock or contravene
any provision of MGCL or the federal banking laws, rules and
regulations.
Section 8.4. Counterparts. This Agreement may
------------
be executed in counterparts each of which shall be deemed to
constitute an original, but all of which together shall
constitute one and the same instrument.
Section 8.5. Governing Law. This Agreement
-------------
shall be governed by, and interpreted in accordance with, the
laws of the State of Maryland, without regard to conflicts of
laws principles.
Section 8.6. Expenses. Each party hereto will
--------
bear all expenses incurred by it in connection with this
Agreement and the transactions contemplated hereby, except that
58
expenses incurred in connection with the filing, printing and
mailing of the Proxy Statement-Prospectus and Registration
Statement shall be shared equally by Provident and Harbor.
Section 8.7. Notices. All notices, requests,
-------
acknowledgments and other communications hereunder to a party
shall be in writing and shall be deemed to have been duly given
when delivered by hand, overnight courier or facsimile
transmission (confirmed in writing) to such party at its address
or facsimile number set forth below or such other address or
facsimile transmission as such party may specify by notice (in
accordance with this provision) to the other party hereto.
If to Provident, to:
Provident Bankshares Corporation
114 East Lexington Street
Baltimore, Maryland 21202
Facsimile: (410) 277-2887
Attention: Robert L. Davis
General Counsel and
Corporate Secretary
With copies to:
Paul M. Aguggia, Esq.
Muldoon, Murphy & Faucette LLP
5101 Wisconsin Ave., NW
Washington, DC 20016
Facsimile: (202) 966-9409
59
If to Harbor, to:
Harbor Federal Bancorp, Inc.
705 York Road
Baltimore, Maryland 21204
Facsimile: (410) 296-0852
Attention: Robert A. Williams
President
With copies to:
Gary R. Bronstein, Esq.
Stradley Ronon Housley Kantarian &
Bronstein, LLP
1220 19th Street, N.W., Suite 700
Washington, D.C. 20036
Facsimile: (202) 822-0140
Section 8.8. Entire Agreement; etc. This
---------------------
Agreement, together with the Disclosure Letters, represents the
entire understanding of the parties hereto with reference to the
transactions contemplated hereby and supersedes any and all
other oral or written agreements heretofore made. All terms and
provisions of this Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective
successors and assigns. Except for Section 4.12 and 4.13, which
confer rights on the parties described therein, nothing in this
Agreement is intended to confer upon any other person any rights
or remedies of any nature whatsoever under or by reason of this
Agreement.
Section 8.9. Successors and Assigns; Assignment.
----------------------------------
This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns;
provided, however, that this Agreement may not be assigned by
either party hereto without the written consent of the other
party.
60
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed by their duly authorized officers
as of the 3rd day of May, 2000.
PROVIDENT BANKSHARES CORPORATION
By:/s/ Peter M. Martin
_____________________________
Peter M. Martin
President and Chief
Executive Officer
Chairman of the Board,
HARBOR FEDERAL BANCORP, INC.
By:/s/ Robert A. Williams
_____________________________
Robert A. Williams
President
61