AGREEMENT AND PLAN OF MERGER
by and between
CENTER BANCORP, INC.
and
LEHIGH SAVINGS BANK, S.L.A.
dated as of February 14, 1996
INDEX TO DEFINITIONS
Act.................................................................Section 1.1
Affected Loans......................................................Section 5.7
Agreement..........................................................Introduction
Association........................................................Introduction
Association Disclosure Schedule.....................................Article III
Association Financial Statements..................................Section 3.4.1
Association Statement of Condition Date...........................Section 3.4.3
Bank................................................................Section 4.7
Acquisition Transactions............................................Section 5.1
Agreement..........................................................Introduction
Branch Property....................................................Section 3.24
CERCLA.............................................................Section 3.24
Certificate.........................................................Section 1.5
Closing.............................................................Section 1.4
Code..............................................................Section 3.8.2
Collateral Shares.................................................Section 2.1.1
Commissioner........................................................Section 1.2
Common Stock......................................................Section 2.1.1
Company............................................................Introduction
Company Disclosure Schedule..........................................Article IV
Confidentiality Agreement...........................................Section 5.4
Consents..........................................................Section 6.1.2
Constituent Banks...................................................Section 5.6
Constituent Entities................................................Section 1.2
Department........................................................Section 3.3.2
DEPE..............................................................Section 3.3.2
Effective Date......................................................Section 1.2
Environmental Law..................................................Section 3.20
Escrow Account......................................................Section 2.3
Escrow Agent........................................................Section 2.3
Excess TILA Costs...................................................Section 2.3
FDIC..............................................................Section 3.1.1
GAAP..............................................................Section 3.4.1
Hazardous Substance................................................Section 3.20
Inducement Agreement...............................................Introduction
IRS...............................................................Section 3.8.1
ISRA...............................................................Section 3.20
Legal Proceedings...................................................Section 3.7
Material Adverse Effect...........................................Section 3.3.2
Merger.............................................................Introduction
Merger Sub.........................................................Introduction
OCC...............................................................Section 4.2.2
OTS................................................................Introduction
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PCBs................................................................Section 3.20
Post-Closing Merger..................................................Section 5.6
Qualifying TILA Costs................................................Section 2.3
RCRA................................................................Section 3.20
Real Property.......................................................Section 3.20
Returns............................................................Section 3.8.1
SAIF...............................................................Section 3.1.1
Settlement Agreement................................................Section 3.14
Side Letter.........................................................Section 5.17
Stockholder.........................................................Introduction
Surviving Bank.......................................................Section 5.6
Surviving Entity.....................................................Section 1.3
TILA................................................................Section 5.16
TILA Costs........................................................Section 6.3.10
TILA Violation......................................................Section 5.16
Trust Account Shares...............................................Section 2.1.1
Trust Agreement.....................................................Introduction
Trustee.............................................................Introduction
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER ("Agreement"), dated as of
February 14, 1996, is made by and between Center Bancorp, Inc., a New Jersey
corporation (the "Company"), and Lehigh Savings Bank, S.L.A., a New Jersey
chartered capital stock savings and loan association (the "Association").
WHEREAS, the respective Boards of Directors of the Company and the
Association, by the requisite vote required under applicable law, have each
determined that it is in the best interests of the Company and the Association
and their respective stockholders for the Company to acquire the Association by
(i) organizing an interim New Jersey-chartered capital stock savings and loan
association (the "Merger Sub") and (ii) merging Merger Sub with and into the
Association upon the terms and subject to the conditions set forth herein (the
"Merger");
WHEREAS, the respective Boards of Directors of the Company and the
Association, by the requisite vote required under applicable law, have each
approved the Merger upon the terms and subject to the conditions set forth
herein; and
WHEREAS, the trustee (the "Trustee") under the Trust Agreement, dated as of
November 9, 1992 (the "Trust Agreement"), by and among David Margolis (the
"Stockholder"), Mildred Margolis, the Trustee and the Office of Thrift
Supervision (the "OTS") has entered into an Inducement Agreement, dated of even
date herewith (the "Inducement Agreement"), pursuant to which, among other
things, the Trustee has agreed to vote the shares of the Association's common
stock held by him in favor of the Merger, subject to receipt of notice of
non-disapproval from the OTS;
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties and agreements contained herein, the parties hereto
hereby agree as follows:
ARTICLE I-THE MERGER
1.1. Merger. Subject to the terms and conditions of this Agreement, on the
Effective Date (as defined in Section 1.2), the Merger Sub shall be merged with
and into the Association and the separate legal existence of Merger Sub shall
thereupon cease in accordance with the applicable provisions of the New Jersey
Savings and Loan Act (the "Act"). The Merger shall be treated as a taxable
purchase of the Common Stock of the Association by the Company for federal and
state income tax purposes.
1.2. Effective Date. As soon as practicable following fulfillment or waiver
of the conditions specified in Article VI, and provided that this Agreement has
not been terminated or abandoned pursuant to Section 7.1, Merger Sub and the
Association (the "Constituent Entities") shall jointly certify to the New Jersey
Commissioner of Banking (the "Commissioner") that they
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have complied with all of the requirements of the Act. The Merger shall
become effective on the date such certification is approved by the Commissioner
(the "Effective Date").
1.3. Effect of Merger. The Merger shall have the effects specified in the
Act. Without limiting the generality of the foregoing, the corporate existence
of each of Merger Sub and the Association shall be merged into each other and
all of their respective rights, privileges and franchises, and their respective
right, title and interest in and to all property of whatever kind, whether real,
personal or mixed, and things in action and every right, privilege, interest or
asset of value or benefit then existing shall be vested in the Association as
the surviving entity of the Merger (sometimes hereinafter referred to as the
"Surviving Entity").
1.4. Consummation of Merger. The closing of the Merger (the "Closing")
shall take place (a) at the offices of Lowenstein, Sandler, Kohl, Fisher &
Boylan, 65 Livingston Avenue, Roseland, New Jersey 07068 five business days
after notification that all of the conditions set forth in Article VI have been
satisfied or duly waived or (b) at such other time and place and on such other
date as the Company and the Association may agree.
1.5. Certificate of Incorporation and By-laws. The Certificate of
Incorporation and By-Laws of Merger Sub in effect immediately prior to the
Effective Date shall be the Certificate of Incorporation and By-Laws of the
Surviving Entity, until duly amended in accordance with their terms and the Act.
1.6 Directors and Officers. The directors and officers of Merger Sub
immediately prior to the Effective Date shall be the directors and officers,
respectively, of the Surviving Entity, from and after the Effective Date, until
their successors have been duly elected or appointed and qualified or until
their earlier death, resignation or removal in accordance with the terms of the
Surviving Entity's Certificate of Incorporation and By-Laws and the Act.
ARTICLE II-CONVERSION OF SHARES
2.1. Conversion of Shares. By virtue of the Merger, automatically and
without any action on the part of the holder thereof, upon the effectiveness of
the Merger, the following shall occur:
2.1.1. Each then-outstanding share of common stock, par value $10 per
share, of the Association ("Common Stock"), other than (a) shares owned by
the Company, Merger Sub or any direct or indirect wholly-owned subsidiary
of the Company or Merger Sub (except for any shares of Common Stock held in
trust accounts, managed accounts or in any similar manner as trustee or in
a fiduciary capacity ("Trust Account Shares") and shares held as collateral
or in lieu of a debt previously contracted ("Collateral Shares")), (b)
shares held in the treasury of the Association and (c) shares of Common
Stock the holders of which perfect any dissenters' rights they may have
under applicable law, shall be converted into the right to receive $15.2867
per share (as such amount may be reduced pursuant to Section 2.3, the "Per
Share Consideration"), without interest;
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2.1.2. Each then-outstanding share owned by the Company, Merger Sub or
any direct or indirect wholly-owned subsidiary of the Company or Merger Sub
(except for any Shares that are Trust Account Shares or Collateral Shares)
shall be canceled and retired;
2.1.3. Each share issued and held in the Association's treasury shall
be canceled and retired;
2.14. Each issued and outstanding share of common stock of Merger Sub
shall be converted into one fully paid and nonassessable share of the
common stock of the Surviving Entity; and
2.1.5. Until surrendered and exchanged in accordance with this
Agreement, each certificate representing outstanding shares of Common Stock
entitled to the Per Share Consideration (each such certificate, a
"Certificate") shall, after the Effective Date, represent solely the right
to receive, without interest, the Per Share Consideration multiplied by the
number of shares of Common Stock evidenced by such Certificate and shall
have no other rights. Neither the Association, the Company or Merger Sub
shall be liable to any holder of shares of Common Stock for any Per Share
Consideration (or interest with respect thereto) delivered to a public
official pursuant to any applicable abandoned property, escheat or similar
law.
2.2. Dissenters' Rights. Notwithstanding any provision of this Agreement to
the contrary, any shares of Common Stock outstanding immediately prior to the
Effective Date held by a holder who has demanded and perfected the right, if
any, to dissent from this Agreement in accordance with applicable law and as of
the Effective Date has not withdrawn or lost such right to dissent shall not be
converted into or represent a right to receive the Per Share Consideration, but
the holder of such shares shall only be entitled to such rights as are granted
by applicable law. If a holder of shares of Common Stock who dissents shall
effectively withdraw or lose (through failure to perfect or otherwise) the right
to dissent, then, as of the Effective Date or the occurrence of such event,
whichever last occurs, those shares shall be converted into and represent only
the right to receive the Per Share Consideration as provided in Section 2.1.1,
without interest, upon the surrender of the Certificate representing those
shares. The Association shall give the Company copies of any notice of dissent
of any shares of Common Stock received by the Association, notice of any
attempted withdrawals of any such notices of dissent and any other instruments
served pursuant to applicable law received by the Association relating to
stockholders' rights, if any, to dissent. The Association shall not, except with
the prior written consent of the Company, voluntarily make any payment with
respect to any dissenting shares of the Association, offer to settle or settle
any demands for payment with respect thereto or approve any withdrawal of any
such demands.
2.3. Adjustment to Per Share Consideration; Escrow Account. (a) In the
event that the aggregate TILA Costs (as defined herein) exceed $30,000, the Per
Share Consideration shall be reduced by an amount (determined on a per share
basis) equal to the excess, in any, of the Qualifying TILA Costs (as defined
herein) actually incurred and paid by the Association on or prior to Closing
over $30,000. As used herein, the term "Qualifying TILA Costs" means only
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those TILA Costs which are (i) for a sum certain, (ii) liquidated, and
(iii) indefeasibly paid in full by the Association in cash on or prior to
Closing; such term specifically excludes any TILA Costs which are contingent,
unliquidated or unpaid. In the event that the Per Share Consideration is reduced
as provided in this Section 2.3(a), at the Closing the Company will cause the
Surviving Bank to assign to the Stockholder, as the representative of all of the
former stockholders of the Association, any claims which the Association may
have against any third party as a result of the TILA Violations (as defined in
Section 5.16) giving rise to the adjustment in the Per Share Consideration;
provided, however, that the Surviving Bank shall be entitled to receive the
first $30,000 of any recoveries based upon, resulting from or arising out of the
claims so assigned, together with the reimbursement in full of any out-of-pocket
expenses incurred by the Surviving Bank in connection therewith (including, but
not limited to, the fees and disbursements of counsel) before any amounts are
paid to the former stockholders of the Association in respect thereof. No later
than the business day immediately prior to the Closing, the Association shall
certify to the Company the amount of the Qualifying TILA Costs and shall provide
the Company with a reasonably detailed analysis of such Qualifying TILA Costs.
(b) If the aggregate amount of TILA Costs (net of Qualifying TILA Costs for
which a reduction in the Per Share Consideration has been made in accordance
with paragraph (a)) exceeds $30,000, then the Company shall have the right
exercisable at any time prior to the Closing, at its sole election, to either
terminate this Agreement as provided in Section 7.1 as a result of the failure
by the Association to satisfy the conditions of Section 6.3.10 or to further
reduce the Per Share Consideration otherwise payable pursuant to Section 2.1.1
by paying into an escrow account (the "Escrow Account") with an unrelated third
party financial institution selected by the Company and reasonably satisfactory
to the Association (the "Escrow Agent") an amount equal to the sum of (i) such
excess and (ii) the aggregate amount of the litigation expenses expected to be
incurred or paid after the Closing (the "Excess TILA Costs"); provided, however,
that the Company shall not have the right to terminate the Agreement as provided
above if the aggregate amount of the Excess TILA Costs is less than $100,000.
Amounts deposited into the Escrow Account shall be paid either to the Company
(or its designee) to the extent that any TILA Costs are actually incurred by the
Company or its subsidiaries or to the former shareholders of the Association in
accordance with the terms of a mutually satisfactory escrow agreement to be
entered into by the Company, the Stockholder, as the representative of the
former shareholders of the Association, and the Escrow Agent at the time the
Escrow Account is established. For purposes of this Agreement, TILA Costs shall
include the maximum amount of all disputed claims, unless otherwise mutually
agreed by the Association and the Company.
ARTICLE III-REPRESENTATIONS AND WARRANTIES OF THE ASSOCIATION
References herein to "Association Disclosure Schedules" shall mean all of
the disclosure schedules required by this Article III, dated as of the date
hereof and referenced to the specific sections and subsections of Article III of
this Agreement, which have been delivered on the date hereof by the Association
to the Company. The Association hereby represents and warrants to the Company as
follows:
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3.1. Organization.
3.1.1. Association. The Association is a capital stock savings and
loan association duly organized, validly existing and in good standing
under the laws of the State of New Jersey. The Association has full power
and authority, corporate and otherwise, to own or lease all of its
properties and assets and to carry on its business as it is now being
conducted. All eligible accounts of depositors issued by the Association
are insured by the Savings Association Insurance Fund ("SAIF") of the
Federal Deposit Insurance Corporation ("FDIC") to the fullest extent
permitted by law. The Association Disclosure Schedule sets forth true and
complete copies of the Association's Certificate of Incorporation and
By-Laws, as in effect on the date hereof.
3.1.2. Subsidiaries. The Association has not previously and does not
now own or control, directly or indirectly, any controlling equity interest
in any corporation, company, association, partnership, joint venture or
other entity or otherwise control, directly or indirectly, the management
and policies of any such entity.
3.2. Capitalization. The authorized capital stock of the Association
consists of 1,395,500 shares of Common Stock. As of the date hereof, there are
392,500 shares of Common Stock issued and outstanding. The Association
Disclosure Schedules accurately set forth the names and addresses of each of the
shareholders of the Association and the number of shares of Common Stock owned
by each such shareholder. There are no shares of Common Stock issuable upon
exercise of outstanding options. The Association has not adopted any plan
pursuant to which capital stock may be issued. All issued and outstanding shares
of Common Stock have been duly authorized and validly issued, have been issued
without violating the pre-emptive or other rights of third-parties or the
provisions of any applicable federal or state securities laws, are fully paid,
and are nonassessable. The Association has not granted and is not bound by any
outstanding subscriptions, options, warrants, calls, commitments or agreements
of any character calling for the transfer, purchase, subscription or issuance of
any shares of the Association's capital stock and has not issued any securities
representing the right to purchase, subscribe or otherwise receive any shares of
such capital stock or any securities convertible into any such shares, and there
are no agreements or understandings to which the Association is a party with
respect to voting of any such shares.
3.3. Authority; No Violation.
3.3.1. Authority. The Association has full power and authority,
corporate and otherwise, to execute and deliver this Agreement and to
consummate the transactions contemplated hereby in accordance with the
terms hereof. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and
validly approved by the Board of Directors of the Association in accordance
with the Certificate of Incorporation of the Association and all applicable
laws and regulations. Except for stockholder approval of the Merger, no
other corporate proceedings on the part of the Association are necessary to
consummate the transactions so contemplated.
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This Agreement constitutes a valid and binding obligation of the
Association, enforceable against the Association in accordance with its
terms.
3.3.2. Neither the execution and delivery of this Agreement by the
Association, nor the consummation by the Association of the transactions
contemplated hereby in accordance with the terms hereof, or compliance by
the Association with any of the terms or provisions hereof, will (i)
violate any provision of the Association's Certificate of Incorporation or
By-Laws, (ii) assuming that the consents and approvals set forth below are
duly obtained, violate any statute, code, ordinance, rule, regulation,
judgment, order, writ, decree or injunction applicable to the Association
or any of its properties or assets, or (iii) except as set forth in the
Association Disclosure Schedule, violate, conflict with, result in a breach
of any provisions of, constitute a default (or an event which, with notice
or lapse of time, or both, would constitute a default) under, result in the
termination of, accelerate the performance required by, or result in the
creation of any lien, security interest, charge or other encumbrance upon
any of the properties or assets of the Association under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture,
commitment, pledge, permit, deed of trust, license, lease, contract,
agreement or other instrument or obligation or (assuming that the consents
and approvals set forth below are duly obtained) any judgment, order,
decree, law, rule or other restriction of any governmental authority, in
each case to which the Association is a party, or by which the Association
may be bound or to which any of its assets or properties are subject
except, with respect to (ii) and (iii) above, such as individually or in
the aggregate would not have a material adverse effect on the business,
results of operations, assets, financial condition or prospects (financial
and otherwise) (a "Material Adverse Effect") of the Association and which
will not prevent or delay the consummation of the transactions contemplated
hereby. Except for consents and approvals of or filings or registrations
with or notices to the FDIC, the Office of Thrift Supervision ("OTS"), the
New Jersey Department of Banking ("Department"), the New Jersey Department
of Environmental Protection and Energy ("DEPE"), the stockholders of the
Association, no consents or approvals of or filings or registrations with
or notices to any third party or any public body or authority are necessary
on behalf of the Association in connection with (x) the execution and
delivery by the Association of this Agreement and (y) the consummation by
the Association of the Merger and the other transactions contemplated
hereby (including, without limitation, the "Post-Closing Merger" as defined
herein) (other than consents, approvals, filings, registrations or notices,
the failure of the Association to obtain which would not have a Material
Adverse Effect).
3.4. Financial Statements.
3.4.1. The Association Disclosure Schedule sets forth copies of the
consolidated statements of condition of the Association as of June 30, 1995
and June 30, 1994 and the related consolidated statements of income,
changes in stockholders' equity and cash flows for each of the fiscal years
in the three-year period ended June 30, 1995, in each case accompanied by
the audit reports of KPMG Peat Marwick LLP and Arthur Andersen LLP,
independent public accountants with respect to the Association, and the
unaudited
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Thrift Financial Reports of the Association as of September 30, 1995
and December 31, 1995 (collectively, the "Association Financial
Statements"). The audited Association Financial Statements (including the
related notes) have been prepared in accordance with generally accepted
accounting principles ("GAAP"), consistently applied during the periods
covered thereby (except as may be indicated therein or in the notes
thereto), and the Thrift Financial Reports have been prepared in accordance
with generally accepted regulatory accounting principles, consistently
applied during the periods covered thereby and the Association Financial
Statements fairly present the consolidated financial condition of the
Association as of the respective dates set forth therein, and the related
consolidated statements of income, changes in stockholders' equity and cash
flows (if any, in the case of the Thrift Financial Reports) fairly present
the results of the consolidated operations, changes in stockholders' equity
and cash flows of the Association for the respective periods set forth
therein.
3.4.2. The books and records of the Association have been maintained
in material compliance with all applicable legal and accounting
requirements.
3.4.3. Except as and to the extent reflected, disclosed or reserved
against in the Association Financial Statements (including the notes
thereto), as of December 31, 1995 (the "Association Statement of Condition
Date") the Association did not have any liabilities, whether absolute,
accrued, contingent or otherwise, material to the business, operations,
assets or financial condition of the Association which were required by
GAAP (consistently applied) to be disclosed in the Association's
consolidated statement of condition as of the Association Statement of
Condition Date or the notes thereto. Since the Association Statement of
Condition Date, the Association has not incurred any liabilities except in
the ordinary course of business and consistent with prudent banking
practice or except as related to the transactions contemplated by this
Agreement.
3.5. Broker's and Other Fees. Except for Alex Sheshunoff Investment
Banking, neither the Association nor any of its directors or officers has
employed any broker or finder or incurred any liability for any broker's or
finder's fees or commissions in connection with any of the transactions
contemplated by this Agreement. All agreements with Alex Sheshunoff Investment
Banking are set forth in the Association Disclosure Schedule. There are no other
fees (other than time charges billed at usual and customary rates) payable by
the Association to any consultants, including lawyers, accountants and
investment bankers, in connection with the Merger or which would be triggered by
consummation of the Merger or the termination of the services of such
consultants by the Association. The Association has not paid, and will not pay,
any fees to any attorney, accountant (other than customary accounting fees
payable to KPMG Peat Marwick in an amount not to exceed $5,000), investment
banker (other than fees payable to Alex Sheshunoff Investment Banking in an
amount not to exceed $15,000 plus reasonable out-of-pocket expenses) or other
consultant who or which represents any of the shareholders of the Association.
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3.6. Absence of Certain Changes or Events.
3.6.1. Except as disclosed in the Association Disclosure Schedule,
there has not been any material adverse change in the business, results of
operations, assets, prospects (financial or otherwise) or financial
condition of the Association since the Association Statement of Condition
Date, and to the best of the Association's knowledge, no facts or
conditions exist which are likely to cause such a material adverse change
in the future.
3.6.2 Except as disclosed in the Association Disclosure Schedule, the
Association has not taken or permitted any of the actions described in
Section 5.2 hereof between December 31, 1995 and the date hereof.
3.7. Legal Proceedings. Except as disclosed in the Association Disclosure
Schedule, the Association is not a party to any, and there are no pending or, to
the best of the Association's knowledge, threatened, legal, administrative,
arbitrable or other proceedings, claims, actions or governmental investigations
of any nature (collectively, "Legal Proceedings") against the Association and
there are no pending or, to the best of the Association's knowledge, threatened
Legal Proceedings which seek to enjoin, prohibit or delay the transactions
contemplated hereby. Except as disclosed in the Association Disclosure Schedule,
the Association is not a party to any order, judgment or decree entered in any
lawsuit or proceeding (other than routine foreclosure or collection orders
entered in the ordinary course of business).
3.8. Taxes and Tax Returns.
3.8.1. The Association has duly filed (and until the Effective Date
will so file) all returns, declarations, reports, information returns and
statements ("Returns") required to be filed by it in respect of any
federal, state and local taxes (including withholding taxes, penalties or
other payments required) and has duly paid when due (and until the
Effective Date will so pay) all such taxes due and payable, other than
taxes or other changes which are being contested in good faith (and
disclosed to the Company in writing). The Association has established (and
until the Effective Date will establish) on its books and records reserves
that are adequate for the payment of all federal, state and local taxes not
yet due and payable but which should be accrued in respect of the
Association through such date in accordance with GAAP. The Association
Disclosure Schedule identifies the federal income tax returns of the
Association which have been examined by the Internal Revenue Service (the
"IRS") within the past six years. No deficiencies were asserted as a result
of such examinations which have not been resolved and paid in full. To the
best knowledge of the Association, there are no audits or other
administrative or court proceedings presently pending nor any other
disputes pending with respect to, or claims asserted for, taxes or
assessments upon the Association, nor has the Association given any
currently outstanding waivers or comparable consents regarding the
application of the statute of limitations with respect to any taxes or
Returns.
3.8.2. Except as set forth in the Association Disclosure Schedule, the
Association (i) has not requested any extension of time within which to
file any Return which Return
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has not since been filed, (ii) is not a party to any agreement
providing for the allocation or sharing of taxes, (iii) is not required to
include in income any adjustment pursuant to Section 481(a) of the Internal
Revenue Code of 1986, as amended (the "Code"), by reason of a voluntary
change in accounting method initiated by the Association (nor does the
Association have any knowledge that the IRS has proposed any such
adjustment or change of accounting method), and (iv) has not filed a
consent pursuant to Section 341(f) of the Code or agreed to have Section
341(f)(2) of the Code apply.
3.9. Reports. The Association has, since January 1, 1991, duly filed
with the OTS and the Department in form which was correct in all material
respects the monthly, quarterly and annual financial reports required to be
filed under applicable laws and regulations, and the Association promptly
will deliver or make available to the Company accurate and complete copies
of such reports.
3.10. Certain Contracts.
3.10.1. Except as disclosed in the Association Disclosure Schedule,
(i) the Association is not a party to or bound by any written contract or
understanding (whether written or oral) with respect to the employment of
any officers, employees, directors or consultants, and (ii) the
consummation of the transactions contemplated by this Agreement will not
(either alone or upon the occurrence of any additional acts or events)
result in any payment (either of severance pay or otherwise) becoming due
from the Association, the Company or any affiliate of either such entity,
to any officer, employee, director or consultant of the Association. The
Association Disclosure Schedule sets forth true and correct copies of all
severance or employment agreements with officers, directors, employees,
agents or consultants to which the Association is a party.
3.10.2. Except as disclosed in the Association Disclosure Schedule and
except for loan commitments issued in the ordinary course of business, (i)
as of the date of this Agreement, the Association is not a party to or
bound by any commitment, agreement or other instrument which is material to
the business, operations, assets or financial condition of the Association,
but in no event shall a contract for less than $10,000 per year be deemed
material under this Section 3.10.2 or a contract for more than $25,000 per
year be deemed immaterial under this Section 3.10.2, (ii) no commitment,
agreement or other instrument to which the Association is a party or by
which it is bound limits the freedom of the Association to compete in any
line of business or with any person, and (iii) the Association is not a
party to any collective bargaining agreement.
3.10.3. Except as disclosed in the Association Disclosure Schedule,
the Association or, to the best knowledge of the Association, any other
party thereto, is not in default in any material respect under any material
lease, contract, mortgage, promissory note, deed of trust, loan or other
commitment or arrangement, except for defaults which individually or in the
aggregate would not have a Material Adverse Effect on the Association.
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3.11. Properties and Insurance.
3.11.1. The Association has good and, as to owned real property,
marketable title to all material assets and properties, whether real,
personal or mixed, tangible or intangible, reflected in the Association's
consolidated statement of condition (as set forth in the Association
Disclosure Schedule) as of the Association Statement of Condition Date, or
owned and acquired subsequent thereto (except to the extent that such
assets and properties have been disposed of for fair value in the ordinary
course of business since the Association Statement of Condition Date),
subject to no encumbrances, liens, mortgages, security interests or
pledges, except (i) those items that secure liabilities that are reflected
in said consolidated statement of condition or the notes thereto or that
secure liabilities incurred in the ordinary course of business after the
date of such consolidated statement of condition, (ii) statutory liens for
amounts not yet delinquent or which are being contested in good faith,
(iii) such encumbrances, liens, mortgages, security interests, pledges and
title imperfections that are not in the aggregate material to the business,
operations, assets and financial condition of the Association and (iv) with
respect to owned real property, title imperfections noted in title reports
set forth in the Association Disclosure Schedule. The Association as lessee
has the right under valid and subsisting leases to occupy, use, possess and
control all real property leased by the Association in all material
respects as presently occupied, used, possessed and controlled by the
Association.
3.11.2. The business operations and all insurable properties and
assets of the Association are insured for its benefit against all risks
which, in the reasonable judgment of the management of the Association,
should be insured against, in each case under policies or bonds issued by
insurers of recognized responsibility, in such amounts with such
deductibles and against such risks and losses as are in the reasonable
opinion of the management of the Association adequate for the business
engaged in by the Association. As of the date hereof, the Association has
not received any notice of cancellation or notice of a material amendment
of any such insurance policy or bond and is not in default under any such
policy or bond, no coverage thereunder is being disputed and all material
claims thereunder have been filed in a timely fashion.
3.12. Minute Books. The minute books of the Association contain accurate
records of all meetings and other corporate action held of its stockholders and
Board of Directors (including committees thereof), for all meetings held and
actions taken since January 1, 1991.
3.13. Reserves. As of the Association Statement of Condition Date, the
allowance for loan losses in the Association Financial Statements was adequate
based upon all factors required to be considered by the Association in
determining the amount of such allowance. The methodology used to compute such
allowance complies in all material respects with all applicable OTS and
Department policies. As of the Association Statement of Condition Date, the
reserve for OREO properties in the Association Financial Statements was adequate
based upon all factors required to be considered by the Association in
determining the amount of such reserve.
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3.14. No Parachute Payments. No officer, director, employee or agent (or
former officer, director, employee or agent) of the Association is entitled now,
or will or may be entitled to as a consequence of this Agreement or the Merger,
to any payment or benefit from the Association, the Company or any subsidiary of
the Association or the Company which if paid or provided would constitute an
"excess parachute payment", as defined in Section 280G of the Code or
regulations promulgated thereunder. The Association has established an adequate
reserve in accordance with GAAP on the Association Financial Statements for all
amounts payable to Gary Restivo pursuant to the Settlement Agreement, dated
February 9, 1995 (the "Settlement Agreement").
3.15. Disclosure. No representation or warranty contained in Article III of
this Agreement or in the Association Disclosure Schedule contains any untrue
statement of a material fact or omits to state a material fact necessary to make
the statements herein or therein not misleading.
3.16. Employee Plans. Except as set forth in the Association Disclosure
Schedule, the Association does not maintain, and has no liability of any kind or
nature whatsoever (whether known or unknown, actual or contingent) under any
former, employee benefit, welfare, bonus, deferred compensation, pension, profit
sharing, stock option, employee stock ownership, consulting, severance or fringe
benefit plans, formal or informal, written or oral, or any trust agreements
related thereto, relating to any present or former directors, officers or
employees of the Association
3.17. Compliance with Laws and Orders. Except as set forth in the
Association Disclosure Schedule, the business of the Association has not been,
and is not being, conducted in violation of any law, ordinance, regulation,
judgment, order, decree, license or permit of any governmental entity
(including, without limitation, all statutes, rules and regulations pertaining
to the conduct of the banking business and the exercise of trust powers), except
for possible violations which individually or in the aggregate do not, and,
insofar as reasonably can be foreseen, in the future shall not, have a Material
Adverse Effect on the Association. Except as set forth in the Association
Disclosure Schedule, no investigation or review by any governmental entity with
respect to the Association is pending or, to the knowledge of the Association,
threatened, nor has any governmental entity indicated an intention to conduct
the same, in each case other than those the outcome of which shall not have a
Material Adverse Effect on the Association.
3.18. Agreements with Bank Regulators. Except as set forth in the
Association Disclosure Schedule, neither the Association nor any of its
shareholders is a party to any agreement or memorandum of understanding with, or
a party to any commitment letter, Board resolution submitted to a regulatory
authority or similar undertaking to, or is subject to any order or directive by,
or is a recipient of any extraordinary supervisory letter from, any governmental
entity which restricts materially the conduct of the Association's business, or
in any manner relates to its capital adequacy, its credit or reserve policies,
its management or its stockholders, nor has the Association been advised by any
governmental entity that it is contemplating issuing or requesting (or is
considering the appropriateness of issuing or requesting) any such order,
decree,
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agreement, memorandum of understanding, extraordinary supervisory letter,
commitment letter or similar submission, except as set forth in the Association
Disclosure Schedule. The Association Disclosure Schedule also describes the
status of any such matter. The Association is required by Section 32 of the
Federal Deposit Insurance Act to give prior notice to a Federal banking agency
of the proposed addition of an individual to its board of directors or the
employment of an individual as a senior executive officer.
3.19. Association Action. The Board of Directors of the Association (at a
meeting duly called and held) has by the requisite vote of all directors present
(a) approved this Agreement and (b) directed that the Agreement be submitted for
consideration by the Association's stockholders.
3.20. Environmental Matters.
3.20.1. (a) For purposes of this Section 3.20.1, the following terms shall
have the following meanings:
"Branch Property" means all real property presently or formerly owned or
operated by the Association on which branches or facilities are or were located.
"Environmental Law" means any applicable federal, state or local statute,
law, ordinance, rule, regulation, code, license, permit, authorization,
approval, consent, order, judgment, decree, injunction, directive, requirement
or agreement with any Governmental Entity, now existing, relating to: (a) the
protection, preservation or restoration of the environment (including, without
limitation, air, water vapor, surface water, groundwater, drinking water supply,
surface land, subsurface land, plant and animal life or any other natural
resource), or to human health or safety, or (b) the exposure to, or the use,
storage, recycling, treatment, generation, transportation, processing, handling,
labeling, production, release or disposal of Hazardous Substances, in each case
as amended. The term Environmental Law includes, without limitation, (x) the
following statutes, each as amended:
(i) the federal Clean Air Act;
(ii) the federal Clean Water Act;
(iii) the federal Water Pollution Control Act of 1972;
(iv) the federal Resource Conservation and Recovery Act of 1976 (including
the Hazardous and Solid Waste Amendments thereto) ("RCRA");
(v) the federal Comprehensive Environmental Response Compensation Liability
Act of 1980 (including the Superfund Amendments and Reauthorization Act of 1986)
("CERCLA");
(vi) the federal Toxic Substances Control Act;
(vii) the federal Occupational Safety and Health Act of 1970;
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(viii) the federal Emergency Planning and Community Right-to-Know Act of
1986;
(ix) the federal Safe Drinking Water Act;
(x) the federal Solid Waste Disposal Act;
(xi) the federal Insecticide, Fungicide and Rodenticide Act; and
(xii) the Industrial Site Recovery Act ("ISRA").
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 Substance.
"Hazardous Substance" means any substance, whether liquid, solid or gas,
listed, defined, designated, or classified as hazardous, toxic, radioactive, or
dangerous under any applicable Environmental Law, whether by type or by
quantity. Hazardous Substance includes, without limitation, (i) any "hazardous
substance" as defined in CERCLA, (ii) any "hazardous waste" as defined in RCRA,
and (iii) any toxic waste, pollutant, contaminant, hazardous substance, toxic
substance, hazardous waste, special waste or petroleum or any derivative or
by-product thereof, radon, radioactive material, asbestos, asbestos containing
material, urea formaldehyde foam insulation, lead and poly chlorinated biphenyls
("PCBs").
"Real Property" means the Branch Property, all real property classified by
the Association as OREO and all real property (including property held as
trustee or in any other fiduciary capacity) over which the Association currently
or formerly has exercised dominion, management or control.
(b) Except as set forth in the Association Disclosure Schedule or as would
not have a Material Adverse Effect on the Association:
(i) the Association is and has been in compliance with all applicable
Environmental Laws,
(ii) the Real Property does not contain any Hazardous Substance in
violation of any applicable Environmental Law,
(iii) the Association has not received any written notices, demand letters
or written requests for information from any governmental entity or any
third-party indicating that the Association may be in violation of, or
liable under, any Environmental Law.
(iv) there are no civil, criminal or administrative actions, suits,
demands, claims, hearings, investigations or proceedings pending or
threatened against the Association
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with respect to the Association or the Real Property relating to any
violation, or alleged violation, of any Environmental Law;
(v) no reports have been filed, or are required to be filed, by the
Association concerning the release of any Hazardous Substance or the
threatened or actual violation of any Environmental Law on or at the Real
Property;
(vi) to the knowledge of the Association, there are no underground storage
tanks on, in or under any of the Branch Property and no underground storage
tanks have been abandoned or removed from any Branch Property while such
Branch Property was owned or operated by the Association; and
(vii) to the knowledge of the Association, the Association has not
incurred, and none of the Real Property is presently subject to, any
liabilities (fixed or, to the knowledge of the Association, contingent)
relating to any suit, settlement, court order, administrative order,
judgment or claim asserted or arising under any Environmental Law.
(c) For purposes of this Section 3.20, "to the knowledge of the
Association" shall mean to the knowledge of each person with the title of Vice
President of the Association or higher.
(d) There are no permits, licenses or registrations required under any
Environmental Law with respect to the Branch Property presently operated by the
Association;
(e) The Association has not received written notice that any part of the
Real Property has been or is listed as a site having thereon Hazardous
Substances pursuant to any Environmental Law.
3.21. Labor Relations. Except as set forth in the Association Disclosure
Schedule, the Association is not a party to or bound by any collective
bargaining agreement respecting its employees, nor is there pending, or to the
best knowledge of the Association threatened, any strike, walk out or other work
stoppage or labor organizational effort.
3.22. Indemnification. Except as set forth in the Certificate of
Incorporation and By-Laws of the Association or in the Association Disclosure
Schedule, (i) the Association is not a party to any indemnification agreement
with any of its present or future directors, officers, employees, agents or
other persons who serve or served in any other capacity with any other
enterprise at the request of the Association (a "Covered Person"), and (ii) to
the best knowledge of the Association, there are no claims for which any Covered
Person would be entitled to indemnification under the Certificate of
Incorporation or By-Laws of the Association, or otherwise.
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ARTICLE IV-REPRESENTATIONS AND WARRANTIES OF THE COMPANY
References herein to "Company Disclosure Schedules" shall mean all of the
disclosure schedules required by this Article IV, dated as of the date hereof
and referenced to the specific sections and subsections of Article IV of this
Agreement, which have been delivered on the date hereof by the Company to the
Association. The Company hereby represents and warrants to the Association as
follows:
4.1. Organization. The Company is a corporation duly organized, validly
existing and in good standing under the laws of New Jersey. The Company has full
power and authority, corporate and otherwise, to own or lease all of its
properties and assets and to carry on its business as it is now being conducted.
4.2 Authority; No Violation.
4.2.1. Authority. The Company has full power and authority, corporate
and otherwise, to execute and deliver this Agreement and to consummate the
transactions contemplated hereby in accordance with the terms hereof. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly approved by the
Board of Directors of the Company in accordance with the Certificate of
Incorporation of the Company and all applicable laws and regulations. No
other corporate proceedings on the part of the Company are necessary to
consummate the transactions so contemplated. This Agreement constitutes a
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms.
4.2.2. Neither the execution and delivery of this Agreement by the
Company, nor the consummation by the Company of the transactions
contemplated hereby in accordance with the terms hereof, or compliance by
the Company with any of the terms or provisions hereof, will (i) violate
any provision of the Company's Certificate of Incorporation or By-Laws,
(ii) assuming that the consents and approvals set forth below are duly
obtained, violate any statute, code, ordinance, rule, regulation, judgment,
order, writ, decree or injunction applicable to the Company or any of its
properties or assets, or (iii) except as set forth in the Company
Disclosure Schedule, violate, conflict with, result in a breach of any
provisions of, constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, result in the
termination of, accelerate the performance required by, or result in the
creation of any lien, security interest, charge or other encumbrance upon
any of the properties or assets of the Company under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture,
commitment, pledge, permit, deed of trust, license, lease, contract,
agreement or other instrument or obligation or any judgment, order, decree,
law, rule or other restriction of any governmental authority, in each case
to which the Company is a party, or by which the Company may be bound or to
which any of its assets or properties are subject except, with respect to
(ii) and (iii) above, such as individually or in the aggregate will not
have a Material Adverse Effect on the Company and its subsidiaries taken as
a whole and which will not prevent or delay the consummation of the
transactions contemplated hereby.
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Except for consents and approvals of or filings or registrations with
or notices to the FDIC, the Office of the Comptroller of the Currency (the
"OCC"), the Department, the DEPE, the Federal Reserve Board and the OTS, no
consents or approvals of or filings or registrations with or notices to any
third party or any public body or authority are necessary on behalf of the
Company in connection with (x) the execution and delivery by the Company of
this Agreement and (y) the consummation by the Company of the Merger and
the other transactions contemplated hereby.
4.3 Finances. At the Closing, the Company will have sufficient cash
resources to consummate the Merger and to pay the Per Share Consideration.
4.4 Capital Ratio. The Company has no reason to believe that as of the
Closing, on a pro forma basis giving effect to the Merger, (i) the Company's
Tier I risk-based capital ratio will be less than 4%, (ii) the Company's total
risk-based capital ratio will be less than 8%, or (iii) the Company's leverage
ratio will be less than 5%.
4.5 CRA Compliance. The Company has no reason to believe that it is in
material violation of the provisions of the Community Reinvestment Act of 1977,
as amended.
4.6. Absence of Certain Changes or Events. There has not been any material
adverse change in the business, results of operations, assets, prospects
(financial or otherwise) or financial condition of the Company and its
subsidiaries since September 30, 1995 and, to the best of the Company's
knowledge, no facts or conditions exist which are likely to cause such a
material adverse change in the future.
4.7. Reports. The Company's bank subsidiary, Union Center National Bank
(the "Bank"), has, since January 1, 1995, duly filed with the OCC in form which
was correct in all material respects the monthly, quarterly and annual financial
reports required to be filed under applicable laws and regulations, and the Bank
promptly will deliver or make available to the Association accurate and complete
copies of such reports.
4.8. Disclosure. No representation or warranty contained in Article IV of
this Agreement or in the Company Disclosure Schedule contains any untrue
statement of a material fact or omits to state a material fact necessary to make
the statements herein or therein not misleading.
4.9. Agreements with Bank Regulators. Neither the Company nor the Bank is a
party to any agreement or memorandum of understanding with, or a party to any
commitment letter, Board resolution submitted to a regulatory authority or
similar undertaking to, or is subject to any order or directive by, or is a
recipient of any extraordinary supervisory letter from, any governmental entity
which would materially affect the ability of the Company to perform its
obligations hereunder nor has the Company or the Bank been advised by any
governmental entity that it is contemplating issuing or requesting (or is
considering the appropriateness of issuing or requesting) any such order,
decree, agreement, memorandum of understanding, extraordinary
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supervisory letter, commitment letter or similar submission, except as
disclosed in the Company Disclosure Schedule.
4.10. Company Action. The Board of Directors of the Company (at a meeting
duly called and held) has by the requisite vote of all directors present (a)
determined that the Merger is advisable and in the best interests of the Company
and (b) approved this Agreement and the transactions contemplated hereby,
including the Merger.
4.11. Broker's Fees. Other than Capital Consultants of Princeton, Inc., no
person is or will be entitled to a broker's, finder's, investment banker's,
financial adviser's or similar fee from the Company in connection with this
Agreement or any of the transactions contemplated hereby. The fees and expenses
of Capital Consultants of Princeton, Inc. shall be the sole responsibility of
the Company.
ARTICLE V-COVENANTS
5.1. Acquisition Proposals. The Association shall not, directly or
indirectly, and shall instruct and otherwise use its best efforts to cause its
stockholders, officers, directors, employees, agents or advisors or other
representatives or consultants not to, directly or indirectly, (i) encourage,
solicit or initiate any proposals or offers from any person relating to any
acquisition or purchase of all or a material amount of the assets of, or any
securities of, or any merger, consolidation or business combination with, the
Association (such transactions are referred to herein as "Acquisition
Transactions") or (ii) participate in any discussions or negotiations regarding,
or furnish to any other person any information with respect to, an Acquisition
Transaction. The Association shall promptly notify the Company orally and in
writing of any proposal or offer regarding an Acquisition Transaction, any
inquiries with respect thereto and any request for information relating thereto.
Such written notification shall include the identity of the entity making such
inquiry or Acquisition Transaction proposal or offer or request and such other
information with respect thereto as is reasonably necessary to apprise the
Company of the material terms of such Acquisition Transaction proposal or offer
or request and all other material information relating thereto.
5.2. Interim Operations of the Association. During the period from the date
of this Agreement to the Effective Date, except as expressly provided in this
Agreement, as required by law, or as otherwise approved in writing and in
advance by the Company:
5.2.1. Conduct of Business. The Association shall conduct its business
only in, and not take any action except in, the ordinary course of the
Association's business. The Association shall use reasonable efforts to
preserve intact the business organization of the Association, to keep
available the services of its present key officers and employees and to
preserve the goodwill of those having business relationships with the
Association. Without limiting the generality of the foregoing, the
Association shall not pay interest on its deposits (or offer other
incentives which have the effect of increasing the rate of
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interest otherwise payable on such deposits) at a rate per annum which
is significantly in excess of market interest rates on deposits of similar
type, size and maturity.
5.2.2. Certificate of Incorporation and By-Laws. The Association shall
not make any chage or amendment to its Certificate of Incorporation or
By-Laws .
5.2.3. Capital Stock. The Association shall not issue or sell any
shares of capital stock or any other securities or issue any subscriptions,
options, warrants, rights, convertible securities or enter into any
agreements or commitments of any character relating to the issued or
unissued capital stock or other securities of the Association obligating
the Association to issue, deliver or sell, or cause to be issued, delivered
or sold, additional shares of capital stock of the Association or
obligating the Association to grant, extend or enter into any subscription,
option, warrant, right, convertible security or other similar agreement or
commitment or enter into any arrangement or contact with respect to the
purchase or voting of shares of its capital stock, or adjust, split,
combine or reclassify any of its capital stock or other securities or make
any other changes in its capital structure.
5.2.4. Dividends. The Association shall not declare, set aside, pay or
make any dividend or other distribution or payment (whether in cash, stock
or property) with respect to, or purchase or redeem, any shares of its
capital stock; provided, however, that the payments to Alex Sheshunoff
Investment Banking contemplated by Section 3.5 and compliance with the
provisions of Section 6.3.6 and 6.3.8 shall be deemed not to violate the
provisions of this Section 5.2.4.
5.2.5. Employee Plans, Compensation, Etc. Except as set forth in the
Association Disclosure Schedule, the Association shall not adopt or amend
any bonuses, profit sharing, compensation, severance, termination, stock
option, pension, retirement, deferred compensation, employment or other
employee benefit agreements, trusts, plans, funds, employee stock
ownership, consulting, severance or fringe benefit plan, formal or
informal, written or oral, or other arrangements for the benefit or welfare
of any director, officer or employee, or (except pursuant to commitments of
the Association existing as of the date hereof as disclosed in the
Association Disclosure Schedule) increase the compensation or fringe
benefits of any director, officer or employee (other than in the ordinary
course of business consistent with past practices) or pay any benefit not
required by any existing plan or arrangement (including, without
limitation, the granting of stock options or stock appreciation rights) or
take any action or grant any benefit not required under the terms of any
existing agreements, trusts, plans, funds or other such arrangements or
enter into any contract, agreement, commitment or arrangement to do any of
the foregoing.
5.2.6. Representations and Covenants. The Association shall not take
any action, or knowingly omit to take any action, that would, or that would
reasonably be expected to, result in (A) any of the representations and
warranties of the Association set forth in
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Article III becoming untrue or (B) any of the conditions to closing
set forth in Sections 6.1 or 6.3 not being satisfied.
5.2.7. Other Actions. The Association shall not take any action that
would, in any such case, (i) materially delay or adversely affect the
ability of the Association or its shareholders to obtain any approvals of
governmental entities required to permit consummation of the Merger or (ii)
materially adversely affect its ability to perform its obligations under
this Agreement.
5.2.8. Environmental Actions. The Association shall not change any of
its existing policies and practices with respect to taking any action that
results or would be likely to result in it being deemed to exercise
dominion, management or control over collateral securing any extension of
credit (other than residential and one-to-four-family dwellings); provided,
however that such practices comply with all Environmental Laws and provided
further, however that the Association shall not take any such action with
respect to any outstanding extension of credit (other than residential and
one-to-four-family dwellings) in an amount of $25,000 or more or in
connection with which there is reasonably anticipated to be an
environmental exposure of $5,000 or more without prior consultation with
the Company.
5.3. Company Representations and Covenants. The Company shall not take any
action, or knowingly omit to take any action, that would, or that would
reasonably be expected to, result in (A) any of the representations and
warranties of the Company set forth in Article IV becoming untrue or (B) any of
the conditions to closing set forth in Sections 6.1 or 6.2 not being satisfied.
5.4. Access and Information. Upon reasonable notice and at reasonable
times, the Association shall afford to the Company and its representatives
(including, without limitation, directors, officers and employees of the Company
and its affiliates and counsel, accountants and other professionals retained by
it) access during normal business hours throughout the period prior to the
Effective Date to the books, records (including, without limitation, tax returns
and work papers of independent auditors), properties, personnel and to such
other information as the Company reasonably requests; provided, however, that
the Association shall not be required to provide access to any such information
if the providing of such access (i) would violate a binding contractual
obligation, (ii) would, as advised by outside counsel, be reasonably likely to
result in the loss or impairment of any privilege with respect to such
information or (iii) would be precluded by any law, ordinance, regulation,
judgment, order, decree, license or permit of any governmental entity. Any
access granted to the Company pursuant to this Section 5.4 shall not in any way
limit any representation or warranty set forth in this Agreement. The rights and
obligations of each of the Bank and the Association pursuant to the
Confidentiality Letter Agreements ("Confidentiality Agreements") between the
Bank and the Association, shall survive the execution and delivery of this
Agreement, and all information heretofore and hereafter obtained by the Company
or any of its advisors pursuant to this Section 5.4 or otherwise shall be deemed
Evaluation Material (as that term is defined in such Confidentiality Agreements)
and shall remain subject to the provisions of such Confidentiality Agreements
until the Effective Date.
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5.5. Certain Filings, Consents and Arrangements. The Company, the Bank and
the Association shall (a) cooperate with the Company in filing all applications
and reports required to be filed with all applicable governmental entities
between the date of this Agreement and the Effective Date with respect to the
Merger and the other transactions contemplated by this Agreement (including
without limitation the Post-Closing Merger (as hereinafter defined) described in
Section 5.6 hereof), (b) cooperate with one another (i) in promptly determining
whether any other filings are required to be made or consents, approvals,
permits or authorizations are required to be obtained under any other applicable
federal, state or foreign law or regulation and (ii) in promptly making any such
filings, furnishing information required in connection therewith and seeking
timely to obtain any such consents, approvals, permits or authorizations and (c)
subject to the qualifications set forth in the proviso in Section 5.4, deliver
to the other party hereto copies of all such reports and filings promptly after
they are filed. Notwithstanding anything to the contrary contained in this
Agreement, the Company shall not be required to take any action that would
subject it to any obligations under ISRA unless the Effective Date shall have
occurred.
5.6 Post-Closing Merger. Immediately after the Effective Date, the Company,
as the sole shareholder of the Association and the Bank, intends to merge the
Association with and into the Bank (the "Post-Closing Merger"). The Association
shall, at the Company's expense, take all actions reasonably requested by the
Company, including without limitation the processing of all applications and
filings contemplated by Section 5.5 hereof) in order to enable the Company to
effect the Post-Closing Merger immediately after the Effective Date. For
purposes of this Agreement, the term "Surviving Bank" shall mean the Bank as the
surviving entity of the Post-Closing Merger and the term "Constituent Banks"
shall mean the parties to the Post-Closing Merger.
5.7. Loan Sales. From time to time after the date hereof and prior to the
Closing, the Company shall have the right to require the Association to dispose
of one or more of the loans or other extensions of credit listed on Schedule 5.7
(the "Affected Loans") at the Closing. In the event that the Company wishes to
exercise its rights under this Section 5.7, the Company shall give written
notice to the Association referencing this Section 5.7 and setting forth the
Affected Loans to be disposed. Promptly after receipt of such notice, the
Association shall use its best efforts to dispose of the Affected Loans for cash
to a bona fide purchaser in the open market at the Closing. The Association
shall provide the Company with regular updates regarding the status of the
Association's disposition activities upon request. Notwithstanding the
foregoing, the Association shall not be required to comply with the provisions
of this Section 5.7 until the Effective Date.
5.8. Assessment Accruals. To the extent permitted under GAAP, prior to the
Closing the Association shall make appropriate provisions on its financial
statements to account for any "special" or "one-time" SAIF assessments which may
be imposed on the deposits of the Association subsequent to the Effective Date.
Notwithstanding the foregoing, the Association shall not be required to comply
with the provisions of this Section 5.8 until the Effective Date.
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5.9. Other Adjustments. Prior to the Closing, the Association shall write
down the value of its bank premises to an amount which approximates the fair
value of such premises as determined by the appraisals obtained by the Company.
Notwithstanding the foregoing, the Association shall not be required to comply
with the provisions of this Section 5.9 until the Effective Date.
5.10. Additional Agreements. Subject to the terms and conditions herein
provided, each of the parties hereto shall use its best efforts to take
promptly, or cause to be taken, all actions and to do promptly, or cause to be
done, all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions contemplated by
this Agreement (including, without limitation, the Post-Closing Merger),
including, without limitation, using its best efforts to obtain all necessary
actions or non-actions, extensions, waivers, consents and approvals from all
applicable governmental entities, effecting all necessary registrations and
filings (including, without limitation, making all filings under any applicable
banking and securities laws) and obtaining any required contractual consents.
If, at any time after the Effective Date, the Surviving Bank considers or is
advised that any deeds, bills of sale, assignments, assurances or any other
actions or things are necessary or desirable to vest, perfect or confirm of
record or otherwise in the Surviving Bank its right, title or interest in, to or
under any of the rights, properties or assets of either of the Constituent Banks
acquired or to be acquired by the Surviving Bank as a result of, or in
connection with the Merger or the Post-Closing Merger or otherwise to carry out
the purposes of this Agreement, the officers and directors of the Surviving Bank
shall be authorized to execute and deliver, in the name and on behalf of each of
the Constituent Banks or otherwise, all such deeds, bills of sale, assignments
and assurances and to take and do, in the name and on behalf of each of the
Constituent Banks or otherwise, all such other actions and things as may be
necessary or desirable to vest, perfect or confirm any and al right, title and
interest in, to and under such rights, properties or assets in the Surviving
Bank or otherwise to carry out the purposes of this Agreement.
5.11. Publicity. The initial press release announcing this Agreement shall
be a joint press release reasonably acceptable to the Association and the
Company, and thereafter (until the Effective Date) the Association and the
Company shall consult with each other before issuing any press releases with
respect to the transactions contemplated hereby or making any filings with any
governmental entity with respect thereto.
5.12. ISRA Approval. The Association, at its sole cost and expense, shall
obtain prior to the Effective Date (i) a determination from the DEPE that the
Merger is not subject to the requirements of ISRA, or (ii) an order issued by
the DEPE pursuant to ISRA authorizing the consummation of the transaction
contemplated by this Agreement prior to the issuance of any "Negative
Declarations" or approval of any "Clean-Up Plans," as such terms are defined
under ISRA or (iii) "Negative Declarations" or approvals of any "Clean-up Plans"
with respect to each property in New Jersey which the Association owns or
operates, in each case to the extent that such property renders the provisions
of ISRA applicable to the transaction contemplated by this Agreement. The
Association will post or have posted with the DEPE a surety bond or other
financial security approved by the DEPE in an amount requested by the DEPE as
required in furtherance of the Association's obligations under this covenant.
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5.13. Employee Matters. The Company shall interview all of the existing
employees of the Association so as to determine their relative qualifications
and shall make appropriate staffing decisions with respect to those employees as
the Company may determine in its sole discretion.
5.14. Transfer Covenants. From and after the date hereof, the Association
shall not reflect on its books any Transfer (as such term is defined in the
Inducement Agreement) of Trust Shares (as such term is defined in the Inducement
Agreement) except in accordance with the terms of the Inducement Agreement.
5.15. Payment of Certain Amounts. Prior to Closing, the Association shall
have fully discharged all of its obligations under the Settlement Agreement.
5.16. Truth in Lending Covenants. The Association shall take all actions as
may be necessary or advisable to fully resolve all outstanding violations of the
Truth in Lending Act ("TILA") and/or the provisions of Regulation Z promulgated
thereunder, whether existing on the date hereof or arising prior to the Closing
(the "TILA Violations"), on or prior to the Closing or as soon thereafter as
practicable. Without limiting the generality of the foregoing, the Association
shall (i) within 40 business days after the date hereof, deliver to all persons
entitled thereto appropriate notices of their right to rescind extensions of
credit made by the Association meeting the requirements of TILA and 12 C.F.R.
226.23(A) (as determined in the written opinion of Hehl & Hehl, special
independent counsel to the Association, which opinion shall be satisfactory, in
form and substance, to the Company), (ii) rescind any outstanding extension of
credit which is the subject of a TILA Violation if such rescission is timely
requested by any person entitled by TILA and Regulation Z to rescind such
credit, (iii) pay any statutory and other damages resulting from the TILA
Violations, and (iv) pay any other fines, penalties, charges, costs, expenses or
damages incurred in connection with the provisions of this Section 5.16;
provided, however, that the Company expressly acknowledges that the Association
shall have the right to institute appropriate proceedings if the Association
deems such proceedings to be reasonably necessary in fully resolving the TILA
Violations and the effects thereof.
5.17. Planning Board Determinations. The Association shall use its best
efforts to obtain the Planning Board determinations contemplated by the letter
agreement, dated February 14, 1996 (the "Side Letter"), from Washington Group,
Ltd., Lehigh Financial Corp., the Stockholder and Mildred Margolis to the
Company and the Association.
ARTICLE VI-CONDITIONS
6.1. Conditions to Each Party's Obligations to Effect the Merger. The
respective obligations of each party to effect the Merger shall be subject to
the fulfillment at or prior to the Effective Date of the following conditions:
6.1.1. The Merger shall have been approved and adopted by the
requisite vote of the holders of the Common Stock.
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6.1.2. All authorizations, consents, orders or approvals of, and all
expirations of waiting periods imposed by, any governmental entity or other
third party (collectively, "Consents") which are necessary for the
consummation of the Merger and the Post-Closing Merger (other than
immaterial Consents, the failure to obtain which would not have a material
adverse effect on the Company or the Association) shall have been obtained
or shall have occurred and shall be in full force and effect at the
Effective Date; provided, however, that the entry by a court, in any suit
brought by a private party or governmental entity challenging the Merger or
the Post-Closing Merger as violative of the antitrust laws, of an order or
decree permitting the Merger or the Post-Closing Merger, but requiring that
any of the businesses, product lines or assets of the Bank or the
Association be held separate thereafter, shall not be deemed to satisfy the
conditions specified in this Section 6.1.2.
6.1.3. No temporary restraining order, preliminary or permanent
injunction or other order by any federal or state court in the United
States which prevents the consummation of the Merger or the Post-Closing
Merger shall have been issued and remains in effect.
6.2. Conditions to Obligations of the Association to Effect the Merger. The
obligation of the Association to effect the Merger shall be subject to the
fulfillment or waiver at or prior to the Effective Date of the additional
following conditions:
6.2.1. The Company shall have performed in all material respects its
covenants contained in this Agreement required to be performed at or prior
to the Effective Date.
6.2.2. The representations and warranties of the Company contained in
this Agreement shall be true in all material respects when made, and as of
the Effective Date as if made at and as of such time, except as expressly
contemplated or permitted by this Agreement and except for representations
and warranties relating to a time or times other than the Effective Date
which were or shall be true in all material respects at such time or times.
6.2.3. The Company shall have delivered to the Association a
Certificate dated the date of the Closing, signed by the President or Chief
Financial Officer of the Company that, to the best of his knowledge and
belief after due inquiry, the conditions set forth in Sections 6.2.1 and
6.2.2 have been satisfied.
6.3. Conditions to Obligation of the Company to Effect the Merger. The
obligation of the Company to effect the Merger shall be subject to the
fulfillment or waiver at or prior to the Effective Date of the additional
following conditions:
6.3.1. The Association shall have performed in all material respects
its covenants contained in this Agreement required to be performed at or
prior to the Effective Date.
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6.3.2. The representations and warranties of the Association contained
in this Agreement shall be true in all material respects when made, and as
of the Effective Date as if made at and as of such time, except as
expressly contemplated or permitted by this Agreement and except for
representations and warranties relating to a time or times other than the
Effective Date which were or shall be true in all material respects at such
time or times.
6.3.3. The Association shall have delivered to the Company a
Certificate dated the date of the Closing, signed by the Chief Executive
Officer or Chief Financial Officer of the Association that, to the best of
his knowledge and belief after due inquiry, the conditions set forth in
Sections 6.3.1 and 6.3.2 have been satisfied.
6.3.4. The Trustee shall have voted in favor of the transactions
contemplated hereby, including the Merger, and no default, breach or
violation of any of the representations, warranties, covenants and
agreements of the Trustee contained in the Inducement Agreement (or any
certificate or other document delivered pursuant thereto) shall have
occurred and be continuing.
6.3.5. Prior to or at the Closing, the Company shall have received
general releases, in form and substance satisfactory to the Company,
executed by each of the Trustee and the Stockholder, in favor of the
Association and certain related parties and containing such other terms as
the Company may reasonably require.
6.3.6. Prior to or at the Closing, the Bank and the Stockholder shall
have entered into an agreement, in form and substance satisfactory to the
Bank, granting the Bank the right to either terminate the Association's
lease of the premises located at 952 Stuyvesant Avenue, Union, New Jersey
on the 90th day after the Closing or, at the Bank's option, continue such
lease on a month-to month basis for up to three months after the end of
such 90-day period and containing such other terms as the Bank may
reasonably require.
6.3.7. The aggregate deposits of the Association as of a date not more
than five business days prior to the Closing shall not be less than $62.5
million and the Association shall have provided the Company with
satisfactory evidence regarding the composition and amounts of such
deposits as of such date.
6.3.8. The Association shall have entered into agreements satisfactory
to the Bank regarding the premises located at 944 Stuyvesant Avenue, Union,
New Jersey such that the Surviving Bank shall not be obligated either to
lease such premises from the owner thereof or to sublet such premises to
any sublessee thereof and such other agreements relating to such premises
as are described in the Side Letter.
6.3.9. The Company shall have received all such assurances as it shall
reasonably require to the effect that the Post-Closing Merger may be
consummated immediately after the Effective Date without any further
approvals or consents of any governmental authority.
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6.3.10. The Company shall have received satisfactory evidence that (i)
the Association has taken all actions necessary to resolve all outstanding
TILA Violations in accordance with Section 5.16 and (ii) subject to the
provisions of Section 5.16, at the Closing the Association is in full
compliance in all respects with the provisions of TILA and Regulation Z
promulgated thereunder; provided, however, that this condition shall be
deemed not to have been met if the costs incurred or expected to be
incurred by the Association in complying with the provisions of Section
5.16 (including, without limitation, all out-of-pocket expenses, the fees
and disbursements of counsel to the Association, all fines, penalties,
charges, costs, expenses or damages, all interest and fees foregone or
refunded in respect of extensions of credit which are rescinded pursuant to
Section 5.16 and all expenses incurred or to be incurred in connection with
any proceedings relating thereto) exceed $30,000 in the aggregate, net of
all amounts actually received by the Association in reimbursement thereof
prior to Closing (collectively, "TILA Costs"). For purposes of this Section
6.3.10, TILA Costs shall be reduced by the sum of (i) the aggregate amount
of Qualifying TILA Costs deducted from the Per Share Consideration in
respect thereof as provided in Section 2.3 hereof and (ii) the aggregate
amount, if any, deposited by the Company into the Escrow Account in
accordance with Section 2.3.
6.3.11. The Company shall have received satisfactory evidence that the
representations and warranties set forth in the second paragraph of the
Side Letter are true and correct in all material respects as of the
Closing.
ARTICLE VII-MISCELLANEOUS
7.1. Termination. This Agreement may be terminated at any time prior to the
Effective Date, whether before or after approval by the stockholders of the
Association:
7.1.1. by mutual consent of the Company and the Association;
7.1.2. by either the Company or the Association if the Merger shall
not have been consummated on or before December 31, 1996 (provided the
terminating party is not otherwise in material breach of its obligations
under this Agreement);
7.1.3. by either the Company or the Association, in the event of (i) a
breach by the other party of any representation or warranty contained
herein, which breach has not been cured within thirty (30) days after the
giving of written notice to the breaching party of such breach and which
breaches, individually or in the aggregate, would cause the conditions set
forth in Sections 6.2.2, 6.3.2 or 6.3.4 as the case may be, not to be met
if the date of the action described above were the date of the Closing or
(ii) a material breach by the other party of any of the covenants or
agreements contained herein, which breach has not been cured within thirty
(30) days after the giving of written notice to the breaching party of such
breach;
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7.1.4. by the Association if any of the conditions specified in
Sections 6.1 and 6.2 have not been met or waived by the Association at such
time as such conditions can no longer be satisfied;
7.1.5. by the Company if any of the conditions specified in Sections
6.1 and 6.3 have not been met or waived by the Company at such time as such
condition can no longer be satisfied; and
7.1.6. by the Company in the event of any material breach of the
provisions of the Inducement Agreement.
7.2. Non-Survival of Representations, Warranties, and Agreements. The
representations, warranties and covenants in this Agreement shall terminate at
the Effective Date or the earlier termination of this Agreement pursuant to
Section 7.1, as the case may be; provided, however, that if the Merger is
consummated, Sections 5.10, 7.2 and 7.5 hereof shall survive the Effective Date
to the extent contemplated by such Sections; provided, further, however that the
last sentence of Section 5.4 and all of Section 7.5 hereof shall in all events
survive any termination of this Agreement.
7.3. Interpretation. Unless the contest of this Agreement expressly
indicates otherwise, (i) any singular term in this Agreement shall include the
plural and any plural term shall include the singular and (ii) the term section
or schedule shall mean a section or schedule of or to this Agreement. Each of
the parties hereto acknowledge that this Agreement has been prepared jointly by
the parties hereto, and shall not be strictly construed against either party.
7.4. Parties in Interest; Assignment. This Agreement is not intended to nor
shall it confer upon any other person other than the parties hereto any rights
or remedies.
7.5. Expenses.
7.5.1. Subject to Section 7.5.2, the parties hereto shall each be
responsible for their own costs and expenses relating to this Agreement.
7.5.2. If this Agreement is terminated by the Association or the
Company pursuant to Sections 7.1.3, 7.1.4 or 7.1.5, respectively, because
of the willful breach of any representation, warranty, covenant,
undertaking or restriction contained in this Agreement and if the
terminating party is not in material breach of any representation,
warranty, covenant, undertaking or restriction contained in this Agreement,
then the breaching party shall pay all costs and expenses of the
terminating party; provided, however, that if this Agreement is terminated
under circumstances other than those described in the preceding clauses of
this Section 7.5.2, all costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the
party incurring such costs and expenses. Nothing contained in this Section
7.5.2 shall constitute or shall
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be deemed to constitute liquidated damages for the willful breach by a
party of the terms of this Agreement or otherwise limit the rights of the
non-breaching party.
7.5.3. Final settlement with respect to payment of fees and expenses
by the parties to this Agreement pursuant to Section 7.5.2 shall be made
within thirty (30) days of the termination of this Agreement.
7.6. Enforcement of the Agreement. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties hereto shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions hereof in any court of the
United States or any state having jurisdiction, this being in addition to any
other remedy to which they are entitled at law or in equity.
7.7. Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by and rule of law or public
policy, all other terms and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner adverse to
any party hereto. Upon any such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the partes hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that the transactions contemplated by this Agreement are consummated to the
extent possible.
7.8. Notices. All notices or other communications required or permitted
hereunder shall be in writing and shall be delivered personally, by facsimile or
sent by certified, registered or express air mail, postage prepaid, and shall be
deemed given when so delivered personally, or by facsimile, or if mailed, five
days after the date of mailing, as follows:
If to the Company: 2455 Morris Avenue
Union, New Jersey 07083
Telephone: (908) 688-9500
Facsimile: (908) 688-3043
Attention: Jack Davis
With a copy to: Lowenstein, Sandler, Kohl,
Fisher & Boylan
65 Livingston Avenue
Roseland, New Jersey 07068
Telephone: (201) 992-8700
Facsimile: (201) 992-5820
Attention: Peter H. Ehrenberg, Esq.
If to the Association: 950 Stuyvesant Avenue
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Union, New Jersey 07083
Telephone: (908) 686-6655
Facsimile: (908) 851-9523
Attention: Joseph LaMountain
With copies to: Levy, Lybeck, Bertele & Beck
385 Morris Avenue
P.O. Box 478
Springfield, New Jersey 07081
Telephone: (201) 912-7200
Facsimile: (201)912-7272
Attention: E. Robert Levy, Esq.
and: Horace J. DePodwin
c/o Economic Studies, Inc.
One Gateway Center
Suite 420
Newark, New Jersey 07102-4082
Telephone: (201) 621-0180
Facsimile: (201) 621-0182
and: Pitney, Hardin, Kipp & Szuch
200 Campus Drive
Florham Park, New Jersey 07932-0950
Telephone: (201) 966-6300
Facsimile: (201) 966-1550
Attention: Joseph Lunin, Esq.
7.9. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New Jersey without reference
to choice of law principles thereof.
7.10. Assignment; Successors and Assigns. This Agreement may not be
assigned, and any attempted assignment shall be null and void. This Agreement
shall be binding on and inure to the benefit of the parties hereto and their
respective successors, assigns and legal representatives.
7.11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original agreement, but all of
which together shall constitute one and the same instrument.
7.12. Titles and Headings. The titles, headings and table of contents in
this Agreement are for reference purposes only, and shall not in any way affect
the meaning or interpretation of this Agreement.
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7.13. Entire Agreement. This Agreement, including the Schedules attached
hereto, and the Confidentiality Agreement shall constitute the entire agreement
among the parties with respect to the matters covered hereby and shall supersede
all previous written, oral or implied understandings among them with respect to
such matters.
7.14. Amendment and Modification. This Agreement may only be amended or
modified in writing signed by the party against whom enforcement of such
amendment or modification is sought.
7.15. Waiver. Except as otherwise required by law, any of the terms and
conditions of this Agreement may be waived at any time by the party or parties
entitled to the benefit thereof, but only by a writing signed by the party or
parties waiving such terms or conditions.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
CENTER BANCORP, INC.
By: ________________________________
Name:
Title:
LEHIGH SAVINGS BANK, S.L.A.
By: ________________________________
Name:
Title:
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FIRST AMENDMENT
FIRST AMENDMENT, dated March , 1996 (this "Amendment"), to the Agreement
and Plan of Merger, dated as of February 14, 1996 (the "Merger Agreement"), by
and between Center Bancorp, Inc. (the "Company") and Lehigh Savings Bank, S.L.A.
("Lehigh").
W I T N E S S E T H:
WHEREAS, the Company and Lehigh previously entered into the Merger
Agreement;
WHEREAS, pursuant to the Merger Agreement a subsidiary of the Company
("Merger Sub") is to be merged with and into Lehigh; and
WHEREAS, the Merger Agreement provides that Merger Sub will be a New Jersey
state chartered capital stock savings and loan association; and
WHEREAS, the Company and Lehigh have agreed that it is in their mutual best
interests that the Merger Agreement be amended to provide that Merger Sub will
be a national association organized under the National Bank Act, as amended, and
to make certain other changes relating thereto; and
WHEREAS, except as expressly amended pursuant to the terms of this
Amendment, the Merger Agreement shall continue in full force and effect;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and intending to be legally bound, the parties hereto agree as follows:
Section 1. The first recital of the Merger Agreement is hereby deleted in
its entirety and replaced with the following:
"WHEREAS, the respective Boards of Directors of the Company and the
Association, by the requisite vote required under applicable law, have each
determined that it is in the best interests of the Company and the Association
and their respective stockholders for the Company to acquire the Association by
(i) organizing an interim national association (the "Merger Sub") and (ii)
merging Merger Sub with and into the Association upon the terms and subject to
the conditions set forth herein (the "Merger");"
Section 2. Section 1.1 of the Merger Agreement is hereby deleted in its
entirety and replaced with the following:
"1.1. Merger. Subject to the terms and conditions of this Agreement,
on the Effective Date (as defined in Section 1.2), the Merger Sub shall be
merged with and into the Association and the separate legal existence of
Merger Sub shall thereupon cease in accordance with the applicable
provisions of the National Bank
Act, as amended (the "Act"), and any other applicable law. The Merger shall
be treated as a taxable purchase of the Common Stock of the Association by
the Company for federal and state income tax purposes."
Section 3. Section 1.2 of the Merger Agreement is hereby deleted in its
entirety and replaced with the following:
"1.2. Effective Date. As soon as practicable following fulfillment or
waiver of the conditions specified in Article VI, and provided that this
Agreement has not been terminated or abandoned pursuant to Section 7.1,
Merger Sub and the Association (the "Constituent Entities") shall take all
action (in the manner contemplated by this Agreement) necessary under the
Act and any other applicable law to cause the Merger to become effective.
The date upon which the Merger is declared effective by the applicable
regulatory authority is hereinafter referred to as the "Effective Date.""
Section 4. Section 1.3 of the Merger Agreement is hereby deleted in its
entirety and replaced with the following:
"1.3. Effect of Merger. The Merger shall have the effects specified in
the Act and other applicable law. Without limiting the generality of the
foregoing, the corporate existence of each of Merger Sub and the
Association shall be merged into each other and all of their respective
rights, privileges and franchises, and their respective right, title and
interest in and to all property of whatever kind, whether real, personal or
mixed, and things in action and every right, privilege, interest or asset
of value or benefit then existing shall be vested in the Association as the
surviving entity of the Merger (sometimes hereinafter referred to as the
"Surviving Entity")."
Section 5. Section 1.5 of the Merger Agreement is hereby deleted in its
entirety and replaced with the following:
"1.5. Certificate of Incorporation and By-laws. The Certificate of
Incorporation and By-Laws of Merger Sub in effect immediately prior to the
Effective Date shall be the Certificate of Incorporation and By-Laws of the
Surviving Entity, until duly amended in accordance with their terms and
applicable law."
Section 6. Section 1.6 of the Merger Agreement is hereby deleted in its
entirety and replaced with the following:
"1.6 Directors and Officers. The directors and officers of Merger Sub
immediately prior to the Effective Date shall be the directors and
officers, respectively, of the Surviving Entity, from and after the
Effective Date, until their successors have been duly elected or appointed
and qualified or until their earlier
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death, resignation or removal in accordance with the terms of the Surviving
Entity's Certificate of Incorporation and By-Laws and applicable law."
Section 7. Except as expressly amended pursuant to the terms of this
Amendment, the Merger Agreement shall continue in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
CENTER BANCORP, INC.
By: ______________________________
Name: John J. Davis
Title: President and Chief Executive Officer
LEHIGH SAVINGS BANK, S.L.A.
By: ______________________________
Name: Joseph LaMountain
Title: President and Chief Executive Officer
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