AGREEMENT AND PLAN OF MERGER
Among
PSB BANCORP, INC.
and
JADE FINANCIAL CORP.
and
FUAD, INC.
November 2, 2000
AGREEMENT
THIS AGREEMENT AND PLAN OF MERGER, dated as of November 2,
2000, is made by and among PSB BANCORP, INC. ("PSB"), a
Pennsylvania bank holding corporation, having its principal
place of business in Philadelphia, Pennsylvania, and its wholly
owned subsidiary FUAD, INC. ("Newco"), a Pennsylvania
corporation, and JADE FINANCIAL CORP. ("JADE"), a Pennsylvania
savings and loan holding company, having its principal place of
business in Feasterville, Pennsylvania.
BACKGROUND
1. PSB and JADE desire for Newco to merge with and into
JADE, with JADE surviving such merger, in accordance with the
applicable laws of the Commonwealth of Pennsylvania, and in
accordance with this Agreement.
2. PSB and JADE desire to merge First Penn Bank, a
Pennsylvania chartered commercial bank and a wholly owned
subsidiary of PSB ("First Penn"), with and into JADE's wholly
owned subsidiary, IGA Federal Savings Bank, a federally
chartered stock savings bank ("IGA"), with First Penn surviving
such merger in accordance with the Bank Plan of Merger in the
form attached hereto as Exhibit "A".
AGREEMENT
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants, agreements, representations and warranties
herein contained, the parties hereto, intending to be legally
bound, do hereby agree as follows:
ARTICLE I
THE MERGER
Section 1.01. Definitions. As used in this Agreement, the
following terms shall have the indicated meanings (such meanings
to be equally applicable to both the singular and plural forms
of the terms defined):
Affiliate means, with respect to any Person, any Person who
directly, or indirectly, through one or more intermediaries,
controls, or is controlled by, or is under common control with,
such Person and, without limiting the generality of the
foregoing, includes any executive officer or director of such
Person and any Affiliate of such executive officer or director.
Agreement means this agreement, and any amendment or
supplement hereto.
Applications means the applications for regulatory approval
which are required by the transactions contemplated hereby.
Articles of Merger means the articles of merger to be
executed by JADE and PSB and to be filed in the PDS, in
accordance with the laws of the Commonwealth of Pennsylvania.
Bank Merger means the merger of First Penn with IGA, with
First Penn surviving the merger.
Bank Plan of Merger means the plan of merger set forth as
Exhibit "A" attached hereto.
BCL means the Pennsylvania Business Corporation Law of
1988, as amended.
BHC Act means the Bank Holding Company Act of 1956, as
amended.
Closing Date means the date specified by the parties within
five (5) business days after satisfaction or waiver (subject to
applicable law) of the conditions (excluding conditions that, by
their terms cannot be satisfied until the Closing Date) set
forth in Article V, or such other date as PSB and JADE shall
agree.
Dissenting JADE Shares has the meaning given to that term
in Section 1.02(e)(iii).
Effective Date means the date upon which the Articles of
Merger shall be filed in the PDS in accordance with the laws of
the Commonwealth of Pennsylvania, and shall be the same as the
Closing Date.
Environmental Law means any federal, state, local or
foreign law, statute, ordinance, rule, regulation, code,
license, permit, authorization, approval, consent, order,
judgment, decree, injunction or agreement with any Regulatory
Authority relating to (i) the protection, preservation or
restoration of the environment (including, without limitation,
air, water vapor, surface water, groundwater, drinking water
supply, surface soil, subsurface soil, plant and animal life or
any other natural resource), and/or (ii) the use, storage,
recycling, treatment, generation, transportation, processing,
handling, labeling, production, release or disposal of any
substance presently listed, defined, designated or classified as
hazardous, toxic, radioactive or dangerous, or otherwise
regulated, whether by type or by quantity, including any
material containing any such substance as a component.
ERISA means the Employee Retirement Income Security Act of
1974, as amended.
ESOP means the IGA Federal Savings Bank Employee Stock
Ownership Plan.
Exchange Act means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated from time to
time thereunder.
Exchange Ratio means $13.55 divided by the PSB Average
Closing Price.
FDIA means the Federal Deposit Insurance Act, as amended.
FDIC means the Federal Deposit Insurance Corporation.
FRB means the Federal Reserve Board.
GAAP means generally accepted accounting principles as in
effect at the relevant date.
IRC means the Internal Revenue Code of 1986, as amended.
IRS means the Internal Revenue Service.
IGA means IGA Federal Savings Bank, a federally chartered
savings bank and wholly-owned subsidiary of JADE.
JADE Common Stock has the meaning given to that term in
Section 2.02(a) of this Agreement.
JADE Disclosure Schedule means a disclosure schedule
delivered by JADE to PSB pursuant to Article II of this
Agreement.
JADE Employee Benefit Plans has the meaning given to that
term in Section 2.12 of this Agreement.
JADE Financials means (i) the audited consolidated
financial statements of JADE for the two years ended
December 31, 1999 and December 31, 1998, including the notes
thereto and (ii) the unaudited interim consolidated financial
statements of JADE as of each calendar quarter thereafter
included in Securities Documents filed by JADE.
JADE Regulatory Reports means the Annual Reports of JADE on
Form H-(b)(11) and any Current Report of JADE filed with the OTS
from December 31, 1999 through the Closing Date and the Reports
of Condition and Income of IGA and accompanying schedules for
each calendar quarter, beginning with the quarter ended
December 31, 1999 through the Closing Date.
JADE Subsidiaries means any corporation, 50% or more of the
capital stock of which is owned, either directly or indirectly,
by JADE, except any corporation the stock of which is held in
the ordinary course of the lending activities of IGA.
Material Adverse Effect shall mean, with respect to JADE or
PSB, any adverse effect on its assets, financial condition or
operations that is material to its assets, financial condition
or results of operations on a consolidated basis, except for any
material adverse effect caused by (i) any change in the value of
the respective investment portfolios of JADE or PSB or their
Subsidiaries resulting from a change in interest rates generally
or (ii) any change occurring after the date hereof in any
federal or state law, rule or regulation or in GAAP, which
change affects banking institutions generally, including any
changes affecting the Bank Insurance Fund or the Savings
Association Insurance Fund.
Merger means the merger of Newco with and into JADE, with
JADE surviving such merger, contemplated by this Agreement.
Notice of Completed Purchase means the written notification
to be delivered to JADE by PSB of the completion of the purchase
by PSB of the number of shares of PSB Common Stock that PSB
believes will be necessary to effect the provisions of Sections
1.02(e)(ii)(C)and 1.02(e)(ii)(D)(2) of this Agreement.
OTS means the Office of Thrift Supervision.
PDB means the Pennsylvania Department of Banking.
PDS means the Department of State of the Commonwealth of
Pennsylvania.
Person means any individual, corporation, partnership,
joint venture, association, trust or "group" (as that term is
defined under the Exchange Act).
PSB Average Closing Price means the average of the closing
prices of PSB Common Stock reported on the NASDAQ National
Market System for the 20 trading day period beginning 5 trading
days after the date of the Notice of Completed Purchase.
PSB Employee Benefits Plans has the meaning given to that
term in Section 3.12 of this Agreement.
PSB Common Stock means the common stock of PSB described in
Section 3.02(a).
PSB Disclosure Schedule means a disclosure schedule
delivered by PSB to JADE pursuant to Article III of this
Agreement.
PSB Financials means (i) the audited consolidated financial
statements of PSB as of December 31, 1999 and for the two years
ended December 31, 1999 and December 31, 1998, including the
notes thereto, and (ii) the unaudited interim consolidated
financial statements of PSB as of and for each calendar quarter
thereafter.
PSB Regulatory Reports means the Annual Reports of PSB on
Form FRY-6, any Current Report of PSB on Form FRY-6A filed with
the FRB from December 31, 1999 through the Closing Date and the
Reports of Condition and Income of First Penn and accompanying
schedules for each calendar quarter, beginning with the quarter
ended December 31, 1999 through the Closing Date.
PSB Subsidiaries means any corporation, 50% or more of the
capital stock of which is owned, either directly or indirectly,
by PSB, except any corporation the stock of which is held in the
ordinary course of the lending activities of First Penn.
Registration Statement means the registration statement on
Form S-4, including any pre-effective or post-effective
amendments or supplements thereto, as filed with the SEC under
the Securities Act with respect to the PSB Common Stock to be
issued in connection with the transactions contemplated by this
Agreement.
Regulatory Agreement has the meaning given to that term in
Section 2.11 of this Agreement.
Regulatory Authority or Regulatory Authorities means any
banking agency or department of any federal or state government,
including without limitation, the FDIC, the OTS, the FRB, the
PDB, the SEC and state "blue sky" authorities or the respective
staffs thereof.
Rights means warrants, options, rights, convertible
securities and other capital stock equivalents which obligate an
entity to issue its securities.
SEC means the Securities and Exchange Commission.
Securities Act means the Securities Act of 1933, as
amended, and the rules and regulations promulgated from time to
time thereunder.
Securities Documents means all registration statements,
schedules, statements, forms, reports, Registration Statement
material, and other documents required to be filed under the
Securities Laws.
Securities Laws means the Securities Act and the Exchange
Act and the rules and regulations promulgated from time to time
thereunder.
Subsidiary means any corporation or other entity, 50% or
more of the capital stock or ownership interests of which are
owned, either directly or indirectly, by another entity, except
any corporation or other entity the capital stock or ownership
interests of which are held in the ordinary course of the
lending activities of a bank.
Section 1.02. The Merger.
(a) Closing. The closing will take place at
10:00 a.m. on the Closing Date at the offices of PSB at 11 Penn
Center, Suite 2601, 1835 Market Street, Philadelphia,
Pennsylvania, unless another time and place are agreed to by the
parties hereto; provided, in any case, that all conditions to
closing set forth in Article V have been satisfied or waived at
or prior to the Closing Date. On the Closing Date, PSB and JADE
shall cause the Articles of Merger to be duly executed and to be
filed in the PDS.
(b) The Merger. Subject to the terms and conditions
of this Agreement, on the Effective Date: Newco shall merge
with and into JADE; the separate existence of Newco shall cease;
JADE shall be the surviving corporation in the Merger; and all
of the property (real, personal and mixed), rights, powers and
duties and obligations of Newco shall be taken and deemed to be
transferred to and vested in JADE, the surviving corporation in
the Merger, without further act or deed; all debts, liabilities
and duties of each of Newco and JADE shall thereafter be the
responsibility of JADE as the surviving corporation; all in
accordance with the applicable laws of the Commonwealth of
Pennsylvania. The name of the surviving corporation shall be
Jade Financial Corp. On or promptly after the Effective Date,
PSB shall contribute all shares of First Penn common stock owned
by PSB to JADE.
(c) PSB's and First Penn's Articles of Incorporation
and Bylaws. On and after the Effective Date, the articles of
incorporation and the bylaws of PSB shall be the articles of
incorporation and bylaws of PSB in effect prior to the merger,
until thereafter altered, amended or repealed; the articles of
incorporation and bylaws of First Penn, as the surviving
corporation in the Bank Merger, shall be the articles and bylaws
of First Penn in effect prior to the Bank Merger.
(d) Board of Directors and Officers of PSB. On the
Effective Date, the Board of Directors of PSB shall be appointed
the directors of JADE, and PSB shall appoint Messrs. John J.
O'Connell and Mario Incollingo, Jr. to PSB's Board of Directors.
(e) Conversion of Shares.
(i) Newco Common Stock.
(A) Each share of Newco Common Stock issued
and outstanding immediately prior to the Effective Date shall,
on and after the Effective Date, be converted into an identical
share of JADE Common Stock.
(B) Each share of Newco Common Stock issued
and held in the treasury of Newco as of the Effective Date, if
any, shall, on and after the Effective Date, shall be converted
into identical shares of JADE Common Stock and held in the
treasury of JADE.
(ii) JADE Common Stock.
(A) Subject to the provisions of Section
1.02(e)(ii)(C) and (D) and Section 1.02(e)(iii) hereof with
respect to dissenting shares, each share of JADE Common Stock
issued and outstanding immediately prior to the Effective Date
(other than shares then owned by Newco, if any) shall, on the
Effective Date, by reason of the Merger and without any action
on the part of the holder thereof, be canceled and extinguished
and converted into the right to receive a cash payment equal to
$13.55 per share.
(B) Each share of JADE Common Stock
issued and held in the treasury of JADE or owned by JADE or any
JADE Subsidiary as of the Effective Date, if any, shall be
canceled, and no cash, stock or other property shall be
delivered in exchange therefor.
(C) Each share of JADE Common Stock held
by the ESOP, and unallocated to the account of an ESOP
participant immediately prior to the Effective Date, shall on
the Effective Date be converted into a right to receive the
number of shares of fully paid and non-assessable shares of PSB
Common Stock equal to the Exchange Ratio or $13.55 in cash per
share at the option of PSB.
(D) Each share of JADE Common Stock
allocated and held in the account of an ESOP participant will be
converted, at the option of the participant, into either:
(1) $13.55 per share; or
(2) the number of shares, of fully
paid and non-assessable shares of PSB Common Stock equal to the
Exchange Ratio. In lieu of issuing fractional shares to the
account of any participant or with respect to the PSB Common
Stock to be issued in Section 1.02(e)(ii)(C)above, such
fractional share shall be converted to cash equal to the pro-
rata portion of the PSB Average Closing Price.
(E) In the event the Notice of Completed
Purchase is not received by JADE at least 25 trading days prior
to the Closing Date, the provisions of Sections 1.02(e)(ii)(C)
and 1.02(e)(ii)(D)of this Agreement shall be canceled and each
allocated or unallocated share of JADE Common Stock held by the
ESOP or by an ESOP participant shall be converted into a right
to receive $13.55 per share.
(iii) Dissenting Shareholders of JADE. If there
are holders of JADE Common Stock who dissent from the Merger and
exercise and perfect the right to obtain valuation of and
payment for their shares ("Dissenting JADE Shares") pursuant to
Section 1930(a) and Subchapter D of Chapter 15 of the BCL, the
following provisions will govern payments to be made in respect
of Dissenting JADE Shares:
(A) all payments in respect of Dissenting
JADE Shares, if any, will be made directly by PSB; and
(B) Dissenting JADE Shares, if any, will
be deemed to have been retired and canceled immediately prior to
the Merger, with the effect that no conversion thereof will
occur pursuant to Section 1.02(e)(ii) hereof.
(f) Surrender and Exchange of JADE Stock
Certificates.
(i) Exchange of Certificates. Each holder of
shares of JADE Common Stock, other than holders of Dissenting
JADE Shares, who surrenders to PSB (or its agent) the
certificate or certificates representing such shares will be
entitled to receive, as soon as practicable after the Effective
Date, (i) cash equal to $13.55 per share of JADE Common Stock or
(ii)the number of shares of PSB Common Stock computed in
accordance with Section 1.02(e)(ii)(D)(2).
(ii) Exchange Procedures. Each certificate for
shares of JADE Common Stock delivered for exchange under this
Section 1.02(f) must be endorsed in blank by the registered
holder thereof or be accompanied by a power of attorney to
transfer such shares endorsed in blank by such holder. If more
than one certificate is surrendered at one time and in one
transmittal package for the same shareholder account, the amount
of cash payable or the number of shares of PSB Common Stock, as
the case may be will be computed on the basis of the aggregate
number of shares represented by the certificates so surrendered.
If payments of cash or shares of PSB Common Stock are to be
issued or made to a person other than the one in whose name the
surrendered certificate is registered, the certificate so
surrendered must be properly endorsed in blank, with
signature(s) guaranteed, or otherwise in proper form for
transfer, and the person to whom cash is to be paid or the
shares of PSB Common Stock are to be issued shall pay any
transfer or other taxes required by reason of such issuance or
payment to a person other than the registered holder of the
certificate for shares of JADE Common Stock that are
surrendered. As promptly as practicable after the Effective
Date, PSB shall send or cause to be sent to each shareholder of
record of JADE Common Stock transmittal materials for use in
exchanging certificates representing JADE Common Stock for cash
equal to $13.55 per share of JADE Common Stock canceled in the
Merger or PSB Common Stock, as the case may be. Cash payment
shall be mailed to the former shareholders of JADE as soon as
reasonably possible but in no event later than twenty (20)
business days following the receipt of certificates representing
former shares of JADE Common Stock duly endorsed or accompanied
by the materials referenced herein and delivered by certified
mail, return receipt requested (but in no event earlier than the
second business day following the Effective Date).
(iii) Closing of Stock Transfer Books;
Cancellation of JADE Certificates. Upon the Effective Date, the
stock transfer books for JADE Common Stock will be closed and no
further transfers of shares of JADE Common Stock will thereafter
be made or recognized. All certificates for shares of JADE
Common Stock surrendered pursuant to this Section 1.02(f) will
be held by PSB.
Section 1.03. The Bank Merger.
(a) PSB and JADE shall use their best efforts to
cause First Penn and IGA to merge on the Effective Date with
First Penn surviving such merger. In connection with the Bank
Merger, the name of the surviving institution shall be First
Penn Bank.
(b) Board of Directors and Officers of First Penn.
On the Effective Date, PSB shall appoint (i) Mr. John J.
O'Connell as Chairman of the Board, (ii) Messers Dennis P.
Wesley, Clyde A. Warden, Robert E. Adelsberger, Edward D.
McBride and William L. Harm as directors, and (iii) Mr. Mario L.
Incollingo, Jr. as Executive Vice President and Chief Operating
Officer.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF JADE
JADE hereby represents and warrants to PSB on behalf of
JADE and its Subsidiaries that, except as specifically set forth
in the JADE Disclosure Schedule (which JADE Disclosure Schedule
qualifies and represents exceptions to all of the
representations and warranties of JADE contained in this
Agreement taken as a whole and does not relate to particular
representations and warranties) delivered to PSB on behalf of
JADE on the date hereof:
Section 2.01. Organization.
(a) JADE is a Pennsylvania corporation organized,
validly existing and in good standing under the laws of the
Commonwealth of Pennsylvania. JADE is a savings and loan
holding company registered under the Home Owners Loan Act. JADE
has the corporate power and authority to carry on its business
and operations as now being conducted and to own and operate the
properties and assets now owned and being operated by it. JADE
is not qualified or licensed to do business as a foreign
corporation in any other jurisdiction and is not required to be
so qualified or licensed as the result of the ownership or
leasing of property or the conduct of its business except where
the failure to be so qualified or licensed would not have a
Material Adverse Effect.
(b) IGA is a federally chartered stock savings bank
organized, validly existing, and in good standing under the laws
of the United States. IGA has the corporate power and authority
to carry on its business and operations as now being conducted
and to own and operate the properties and assets now owned and
being operated by it. IGA is not qualified or licensed to do
business as a foreign corporation in any other jurisdiction and
is not required to be so qualified or licensed as the result of
the ownership or leasing of property or the conduct of its
business except where the failure to be so qualified or licensed
would not have a Material Adverse Effect.
(c) All JADE Subsidiaries are listed on the JADE
Disclosure Schedule.
(d) The deposits of IGA are insured by the FDIC to
the extent provided in the Federal Deposit Insurance Act.
(e) The minute books of JADE and all JADE
Subsidiaries accurately record, in all material respects, all
material corporate actions of their respective shareholders and
boards of directors (including committees) through the date of
this Agreement.
(f) Prior to the date of this Agreement, JADE has
delivered to PSB true and correct copies of the articles of
incorporation and bylaws of JADE and IGA as in effect on the
date hereof.
Section 2.02. Capitalization.
(a) The authorized capital stock of JADE consists of
10,000,000 shares of common stock, $.01 par value ("JADE Common
Stock"), of which, at the date of this Agreement, 1,872,923
shares are outstanding, validly issued, fully paid and
nonassessable and free of preemptive rights, and 5,000,000
shares of preferred stock, of which, at the date of this
Agreement, no shares are issued or outstanding. Except as set
forth on Schedule 2.02(a), JADE neither has nor is bound by any
subscription, option, warrant, call, commitment, agreement, plan
or other Right of any character relating to the purchase, sale
or issuance or voting of, or right to receive dividends or other
distributions on any shares of JADE Common Stock or any other
security of JADE or any securities representing the right to
vote, purchase or otherwise receive any shares of JADE Common
Stock or any other security of JADE.
(b) The authorized capital stock of IGA consists of
10,000 shares of common stock, par value $1.00 per share, of
which 10,000 shares are outstanding, validly issued, fully paid,
nonassessable, free of preemptive rights and owned by JADE.
JADE or IGA owns all of the outstanding shares of capital stock
of each JADE Subsidiary free and clear of all liens, security
interests, pledges, charges, encumbrances, agreements and
restrictions of any kind or nature.
(c) Except for the JADE Subsidiaries, JADE does not
own any equity interest, directly or indirectly, or treasury
stock, in any other company or control any other company, except
for equity interests held in the investment portfolios of JADE
and JADE Subsidiaries, equity interests held by JADE in a
fiduciary capacity, and equity interests held in connection with
the commercial loan activities of JADE. Except as set forth in
the JADE Disclosure Schedule, there are no subscriptions,
options, warrants, calls, commitments, agreements or other
Rights outstanding and held by JADE with respect to any other
company's capital stock or the equity of any other person.
(d) To JADE's knowledge, no person or "group" (as
that term is used in Section 13(d)(3) of the Exchange Act), is
the beneficial owner (as defined in Section 13(d) of the
Exchange Act) of 5% or more of the outstanding shares of JADE
Common Stock, except as disclosed in reasonable detail (using
the principles described in Item 403 of the SEC's Regulation S-
K) in the JADE Disclosure Schedule.
Section 2.03. Authority; No Violation.
(a) JADE has full corporate power and authority to
execute and deliver this Agreement and to consummate the
transactions contemplated hereby. IGA has full corporate power
and authority to execute and deliver the Bank Plan of Merger and
to consummate the Bank Merger. The execution and delivery of
this Agreement by JADE and the consummation by JADE of the
transactions contemplated hereby have been duly and validly
approved by the Board of Directors of JADE and, except for
approval by the shareholders of JADE, no other corporate
proceedings on the part of JADE are necessary to complete the
transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by JADE and, subject to
approval of the shareholders of JADE and receipt of the required
approvals from Regulatory Authorities described in Section 3.04
hereof, constitutes the valid and binding obligation of JADE,
enforceable against JADE in accordance with its terms, subject
to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and subject, as to enforceability,
to general principles of equity. The Bank Plan of Merger, upon
its execution and delivery by IGA concurrently with the
execution and delivery of this Agreement, will constitute the
valid and binding obligation of IGA, enforceable against IGA in
accordance with its terms, subject to applicable conservatorship
or receivership provisions of the FDIA, or insolvency and
similar laws affecting creditors' rights generally and subject,
as to enforceability, to general principles of equity.
(b) (i) The execution and delivery of this Agreement
by JADE, (ii) the execution and delivery of the Bank Plan of
Merger by IGA, (iii) subject to receipt of approvals from the
Regulatory Authorities referred to in Section 3.04 hereof and
JADE's and PSB's compliance with any conditions contained
therein, the consummation of the transactions contemplated
hereby, and (iv) compliance by JADE with any of the terms or
provisions hereof, will not (A) conflict with or result in a
breach of any provision of the articles of incorporation or
bylaws of JADE; (B) violate any statute, code, ordinance, rule,
regulation, judgment, order, writ, decree or injunction
applicable to JADE or any of its properties or assets; or
(C) violate, conflict with, result in a breach of any provisions
of, constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under,
result in the termination of, accelerate the performance
required by, or result in a right of termination or acceleration
or the creation of any lien, security interest, charge or other
encumbrance upon any of the properties or assets of JADE under,
any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, deed of trust, license, lease, agreement,
commitment or other instrument or obligation to which JADE is a
party, or by which they or any of their respective properties or
assets may be bound or affected, except for such violations,
conflicts, breaches or defaults under clause (B) or (C) hereof
which, either individually or in the aggregate, will not have a
Material Adverse Effect on JADE.
Section 2.04. Consents. Except for the consents,
approvals, filings and registrations from or with the Regulatory
Authorities referred to in Section 3.04 hereof and compliance
with any conditions contained therein, and the approval of this
Agreement by the shareholders of JADE, no consents or approvals
of, or filings or registrations with, any public body or
authority are necessary, and no consents or approvals of any
third parties are necessary, or will be, in connection with
(a) the execution and delivery of this Agreement by JADE or the
Bank Plan of Merger by IGA, and (b) the completion by JADE of
the transactions contemplated hereby or the Bank Plan of Merger.
JADE has no reason to believe that (i) any required consents or
approvals will not be received or will be received with
conditions, limitations or restrictions unacceptable to it or
which would adversely impact JADE's ability to complete the
transactions contemplated by this Agreement or that (ii) any
public body or authority, the consent or approval of which is
not required or any filing with which is not required, will
object to the completion of the transactions contemplated by
this Agreement.
Section 2.05. Financial Statements.
(a) JADE has previously delivered, or will deliver,
to PSB the JADE Regulatory Reports. The JADE Regulatory Reports
have been, or will be, prepared in all material respects in
accordance with applicable regulatory accounting principles and
practices throughout the periods covered by such statements, and
fairly present, or will fairly present in all material respects,
the financial position, results of operations and changes in
shareholders' equity of JADE as of and for the periods ended on
the dates thereof, in accordance with applicable regulatory
accounting principles applied on a consistent basis.
(b) JADE has previously delivered, or will deliver,
to PSB the JADE Financials. The JADE Financials have been, or
will be, prepared in accordance with generally accepted
accounting principles and practices applied on a consistent
basis throughout the periods covered by such statements, and
fairly present, or will fairly present, the consolidated
financial position, results of operations and cash flows of JADE
as of and for the periods ending on the dates thereof, in
accordance with generally accepted accounting principles applied
on a consistent basis.
(c) At the date of each balance sheet included in the
JADE Financials or the JADE Regulatory Reports, JADE did not
have nor will it have, any liabilities, obligations or loss
contingencies of any nature (whether absolute, accrued,
contingent or otherwise) of a type required to be reflected,
reserved against, or disclosed in such JADE Financials or JADE
Regulatory Reports or in the footnotes thereto which are not
fully reflected or reserved against therein or fully disclosed
in a footnote thereto, except for liabilities, obligations and
loss contingencies which are not material in the aggregate and
which are incurred in the ordinary course of business,
consistent with past practice, and subject, in the case of any
unaudited statements, to normal, recurring audit adjustments and
the absence of footnotes.
Section 2.06. Taxes.
(a) JADE and the JADE Subsidiaries are members of the
same affiliated group within the meaning of IRC Section 1504(a).
JADE and the JADE Subsidiaries have duly filed, and will file,
all federal, state and local tax returns required to be filed by
or with respect to JADE or the JADE Subsidiaries on or prior to
the Closing Date (all such returns being accurate and correct in
all material respects) and has duly paid or will pay, or made or
will make, provisions for the payment of all federal, state and
local taxes which have been incurred by or are due or claimed to
be due from JADE or the JADE Subsidiaries by any taxing
authority or pursuant to any tax sharing agreement or
arrangement (written or oral) on or prior to the Closing Date
other than taxes which (i) are not delinquent or (ii) are being
contested in good faith.
(b) No consent pursuant to IRC Section 341(f) has
been filed (or will be filed prior to the Closing Date) by or
with respect to JADE or JADE Subsidiaries.
Section 2.07. No Material Adverse Effect. JADE has not
suffered any Material Adverse Effect since June 30, 2000.
Section 2.08. Contracts.
(a) Except as described in JADE's Annual Reports to
Shareholders on Form 10-K for the years ended December 31, 1999,
previously delivered or to be delivered to PSB, or in the JADE
Disclosure Schedule, JADE is not a party to or subject to:
(i) any employment, consulting or severance contract or
arrangement with any past or present officer, director or
employee of JADE, except for "at will" arrangements; (ii) any
plan, arrangement or contract providing for bonuses, pensions,
options, deferred compensation, retirement payments, profit
sharing or similar arrangements for or with any past or present
officers, directors or employees of JADE; (iii) any collective
bargaining agreement with any labor union relating to employees
of JADE; (iv) any instrument evidencing or related to
indebtedness for borrowed money whether directly or indirectly,
by way of purchase money obligation, conditional sale, lease
purchase, guaranty or otherwise, in respect of which JADE is an
obligor to any person, which instrument evidences or relates to
indebtedness other than deposits, repurchase agreements, bankers
acceptances and "treasury tax and loan" accounts established in
the ordinary course of business and transactions in "federal
funds" or which contains financial covenants or other
restrictions (other than those relating to the payment of
principal and interest when due) which would be applicable on or
after the Closing Date to PSB or any PSB Subsidiary; (v) any
contract (other than this Agreement) limiting the freedom of
JADE to engage in any type of banking or bank-related business
permissible under law or (vi) any other material contract.
(b) True and correct copies of agreements, plans,
arrangements and instruments referred to in Section 2.08(a) have
been provided to PSB on or before the date hereof, are listed on
the JADE Disclosure Schedule and are in full force and effect on
the date hereof and neither JADE nor, to the knowledge of JADE,
any other party to any such contract, plan, arrangement or
instrument has breached any provision of, or is in default in
any respect under any term of, any such contract, plan,
arrangement or instrument which breach has resulted in or will
result in a Material Adverse Effect with respect to JADE. No
party to any material contract, plan, arrangement or instrument
will have the right to terminate any or all of the provisions of
any such contract, plan, arrangement or instrument as a result
of the transactions contemplated by this Agreement. None of the
employees (including officers) of JADE or any JADE Subsidiary,
possess the right to terminate their employment as a result of
the execution of this Agreement. No plan, employment agreement,
termination agreement, or similar agreement or arrangement to
which JADE or any JADE Subsidiary is a party or under which JADE
or any JADE Subsidiary may be liable contains provisions which
permit an employee or independent contractor to terminate it
without cause and continue to accrue future benefits thereunder.
No such agreement, plan or arrangement (i) provides for
acceleration in the vesting of benefits or payments due
thereunder upon the occurrence of a change in ownership or
control of JADE or any JADE Subsidiary absent the occurrence of
a subsequent event; (ii) provides for benefits which may cause
the disallowance of a federal income tax deduction under IRC
Section 280G; or (iii) requires JADE or any JADE Subsidiary to
provide a benefit in the form of JADE Common Stock or determined
by reference to the value of JADE Common Stock.
Section 2.09. Ownership of Property; Insurance Coverage.
(a) JADE has, or will have as to property acquired
after the date hereof, good and, as to real property, marketable
title to all assets and properties owned by JADE in the conduct
of its business, whether such assets and properties are real or
personal, tangible or intangible, including assets and property
reflected in the balance sheets contained in the JADE Regulatory
Reports and in the JADE Financials or 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 date of such balance sheets), subject to no
encumbrances, liens, mortgages, security interests or pledges,
except (i) those items that secure liabilities for borrowed
money and that are described in the JADE Disclosure Schedule or
permitted under Article IV hereof and (ii) statutory liens for
amounts not yet delinquent or which are being contested in good
faith. JADE, as lessee, has the right under valid and
subsisting leases of real and personal properties used by JADE
in the conduct of its businesses to occupy or use all such
properties as presently occupied and used by it.
(b) With respect to all agreements pursuant to which
JADE has purchased securities subject to an agreement to resell,
if any, JADE has a valid, perfected first lien or security
interest in the securities or other collateral securing the
repurchase agreement, and the value of such collateral equals or
exceeds the amount of the debt secured thereby.
(c) JADE currently maintains insurance in amounts
considered by JADE to be reasonable for its operations and
similar in scope and coverage to that maintained by other
businesses similarly engaged. JADE has not received notice from
any insurance carrier that (i) such insurance will be cancelled
or that coverage thereunder will be reduced or eliminated or
(ii) premium costs with respect to such policies of insurance
will be substantially increased. There are presently no
material claims pending under such policies of insurance and no
notices have been given by JADE under such policies. All such
insurance is valid and enforceable and in full force and effect,
and within the last three years JADE has received each type of
insurance coverage for which it has applied and during such
periods has not been denied indemnification for any material
claims submitted under any of its insurance policies.
Section 2.10. Legal Proceedings. JADE is not a party to
any, and there are no pending or, to the best of JADE's
knowledge, threatened legal, administrative, arbitration or
other proceedings, claims (whether asserted or unasserted),
actions or governmental investigations or inquiries of any
nature (i) against JADE, (ii) to which JADE's assets are or may
be subject, (iii) challenging the validity or propriety of any
of the transactions contemplated by this Agreement, or
(iv) which could adversely affect the ability of JADE to perform
under this Agreement, except for any proceedings, claims,
actions, investigations or inquiries referred to in clauses (i)
or (ii) which, if adversely determined, individually or in the
aggregate, could not be reasonably expected to have a Material
Adverse Effect.
Section 2.11. Compliance With Applicable Law.
(a) JADE and the JADE Subsidiaries hold all licenses,
franchises, permits and authorizations necessary for the lawful
conduct of their businesses under, and have complied in all
material respects with, applicable laws, statutes, orders, rules
or regulations of any federal, state or local governmental
authority relating to them, other than where such failure to
hold or such noncompliance will neither result in a limitation
in any material respect on the conduct of their businesses or
otherwise have a Material Adverse Effect on JADE.
(b) Neither JADE nor any JADE Subsidiary has received
any notification or communication from any Regulatory Authority
(i) asserting that JADE or any JADE Subsidiary is not in
compliance with any of the statutes, regulations or ordinances
which such Regulatory Authority enforces; (ii) threatening to
revoke any license, franchise, permit or governmental
authorization which is material to JADE or any JADE Subsidiary;
(iii) requiring or threatening to require JADE or any JADE
Subsidiary or indicating that JADE or any JADE Subsidiary may be
required, to enter into a cease and desist order, agreement or
memorandum of understanding or any other agreement restricting
or limiting, or purporting to restrict or limit, in any manner
the operations of JADE or any JADE Subsidiary, including without
limitation any restriction on the payment of dividends; or
(iv) directing, restricting or limiting, or purporting to
direct, restrict or limit, in any manner the operations of JADE
or any JADE Subsidiary, including without limitation any
restriction on the payment of dividends (any such notice,
communication, memorandum, agreement or order described in this
sentence is hereinafter referred to as a "Regulatory
Agreement"). Neither JADE nor any JADE Subsidiary has consented
to or entered into any Regulatory Agreement, except as
heretofore disclosed to PSB.
Section 2.12. ERISA. JADE has previously delivered or
will deliver to PSB true and complete copies of all employee
pension benefit plans within the meaning of ERISA Section 3(2),
profit sharing plans, stock purchase plans, deferred
compensation and supplemental income plans, supplemental
executive retirement plans, employment agreements, annual or
long term incentive plans, settlement plans, policies and
agreements, group insurance plans, and all other employee
welfare benefit plans within the meaning of ERISA Section 3(1)
(including vacation pay, severance pay, bonus arrangements, sick
leave, short-term disability, long-term disability, medical
plans, fringe benefits, perquisites) and all other employee
benefit plans, policies, agreements and arrangements, trusts,
contracts, policies, and commitments ("JADE Employee Benefit
Plans"), all of which are set forth in the JADE Disclosure
Schedule, maintained or contributed to for the benefit of the
employees or former employees (including retired employees) and
any beneficiaries thereof or directors or former directors of
JADE, together with (i) the most recent actuarial (if any) and
financial reports relating to those plans which constitute
"qualified plans" under IRC Section 401(a), (ii) the most recent
annual reports relating to such plans filed by them,
respectively, with any government agency, and (iii) all rulings
and determination letters which pertain to any JADE Employee
Benefit Plans, (iv) the most recent summary plan description for
each JADE Employee Benefit Plan for which a summary plan
description is required, and (v) all prohibited transaction
exemptions requested of the Department of Labor with respect to
JADE Employee Benefit Plans. Neither JADE, nor any pension plan
maintained by JADE, has incurred, directly or indirectly, any
liability under Title IV of ERISA (including to the Pension
Benefit Guaranty Corporation) or to the IRS with respect to any
pension plan qualified under IRC Section 401(a) except
liabilities to the Pension Benefit Guaranty Corporation pursuant
to ERISA Section 4007, all of which have been fully paid, nor
has any reportable event under ERISA Section 4043 occurred with
respect to any such pension plan. With respect to each JADE
Employee Benefit Plan that is subject to Title IV of ERISA, the
present value of the accrued benefits under such plan, based
upon the actuarial assumptions used for funding purposes in the
plan's most recent actuarial report did not, as of its latest
valuation date, exceed the then current value of the assets of
such plan allocable to such accrued benefits. With respect to
each JADE Employee Benefit Plan, JADE will have made on or prior
to the Closing Date, all payments required to be made by it
prior to the Closing Date and will have accrued as of the
Closing Date all payments due but not yet payable so that there
will not have been nor will there be any accumulated funding
deficiencies (as defined in ERISA or the Code) or waivers of
such deficiencies. There are no JADE Employee Plans which are
multi-employer plans as defined in Section 3(37) of ERISA and
JADE has not incurred nor is it subject to any liability under
ERISA Section 4201 for a complete or partial withdrawal from a
multi-employer plan. All "employee benefit plans," as defined
in ERISA Section 3(3), comply, and have complied, in all
material respects with (i) relevant provisions of ERISA and
(ii), in the case of plans intended to qualify for favorable
income tax treatment, provisions of the IRC relevant to such
treatment and (iii) its respective plan terms. No prohibited
transaction (which shall mean any transaction prohibited by
ERISA Section 406 and not exempt under ERISA Section 408 or any
transaction prohibited under IRC Section 4975) has occurred with
respect to any employee benefit plan maintained by JADE or JADE
Employee Plan that would result in the imposition, directly or
indirectly, of an excise tax under IRC 4975 or other penalty
under ERISA or the IRC, which, individually or in the aggregate,
has resulted in or will result in a Material Adverse Effect with
respect to JADE. JADE provides continuation coverage under
group health plans for separating employees and "qualified
beneficiaries" in accordance with the provisions of IRC
Section 4980B(f). Such group health plans are in compliance
with Section 1862(b)(1) of the Social Security Act. There are
no pending actions, claims or lawsuits which have been asserted
or instituted against any of JADE's Employee Benefit Plans, the
assets of any of the trusts under such Plans, the plan sponsor,
the plan administrator or against any fiduciary of any of JADE's
Employee Benefit Plans (other than routine benefit claims) nor
does JADE have knowledge of facts which could form the basis of
any such action, claim or lawsuit. There are no investigations
or audits of any of JADE's Employee Benefit Plans, any trusts
under such plans, the plan sponsor, the plan administrator or
any fiduciary of any of JADE's Employee Benefit Plans which have
been threatened or instituted nor does JADE have knowledge of
facts which could form the basis for any such investigation or
audit. No event has occurred or will occur which will result in
liability to JADE in connection with any Employee Benefit Plan
established, maintained, or contributed to (currently or
previously) by JADE or by any other entity which, together with
JADE, constitute elements of either (i) a controlled group of
corporations (within the meaning of IRC Section 414(b)), (ii) a
group of trades or businesses under common control (within the
meaning of IRC Sections 414(c) or 4001), (iii) an affiliated
service group (within the meaning of IRC Section 414(m), or
(iv) another arrangement covered by IRC Section 414(o).
Section 2.13. Securities Documents. JADE has delivered,
or will deliver, to PSB copies of its (i) annual report on SEC
Form 10-K for the year ended December 31, 1999, and (ii)
quarterly reports on SEC Form 10-Q for the quarters ended March
31, 2000 and June 30, 2000. Such reports complied at the time
filed with the SEC, in all material respects, with the Exchange
Act and the applicable rules and regulations of the SEC.
Section 2.14. Brokers, Finders and Financial Advisors.
Except for Berwind Financial, L.P. ("Berwind"), neither JADE,
nor any of its respective officers, directors, employees or
agents, has employed any broker, finder or financial advisor in
connection with the transactions contemplated by this Agreement
or in connection with any transaction other than the Merger, or,
except for its commitments disclosed in JADE Disclosure
Schedule, incurred any liability or commitment for any fees or
commissions to any such person in connection with the
transactions contemplated by this Agreement or in connection
with any transaction other than the Merger, which has not been
reflected in the JADE Financials.
Section 2.15. Environmental Matters. To the knowledge of
JADE, neither JADE nor any properties owned or operated by JADE
has been or is in violation of or liable under any Environmental
Law which violation or liability, individually or in the
aggregate, resulted in, or will result, in a Material Adverse
Effect with respect to JADE. There are no actions, suits or
proceedings, or demands, claims, notices or investigations
(including without limitation notices, demand letters or
requests for information from any environmental agency)
instituted or pending, or to the knowledge of JADE, threatened,
relating to the liability of any property owned or operated by
JADE under any Environmental Law.
Section 2.16. Loan Portfolio. The allowance for loan
losses reflected, and to be reflected, in the JADE Regulatory
Reports, and shown, and to be shown, on the balance sheets
contained in the JADE Financials have been, and will be,
established in accordance with the requirements of generally
accepted accounting principles and all applicable regulatory
criteria.
Section 2.17. Information to be Supplied. The
information supplied, or to be supplied, by JADE for inclusion
in the Applications will, at the time such documents are filed
with any Regulatory Authority, be accurate in all material
aspects.
Section 2.18. Related Party Transactions. Except as
disclosed in the footnotes to the JADE Financials or the JADE
Disclosure Schedule, JADE is not a party to any transaction
(including any loan or other credit accommodation) with any
Affiliate of JADE. Any such transaction (a) was made in the
ordinary course of business, (b) was made on substantially the
same terms, including interest rates and collateral, as those
prevailing at the time for comparable transactions with other
Persons, and (c) did not involve more than the normal risk of
collectability or present other unfavorable features. No loan
or credit accommodation to any Affiliate of JADE is presently in
default or, during the three year period prior to the date of
this Agreement, has been in default or has been restructured,
modified or extended. JADE has not been notified that principal
and interest with respect to any such loan or other credit
accommodation will not be paid when due or that the loan grade
classification accorded such loan or credit accommodation by IGA
is inappropriate.
Section 2.19. Loans. Each loan reflected as an asset in
the JADE Financial Statements (i) is evidenced by notes,
agreements or other evidences of indebtedness which are true,
genuine and correct, (ii) to the extent secured, has been
secured by valid liens and security interests which have been
perfected, and (iii) is the legal, valid and binding obligation
of the obligor named therein, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent conveyance
and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles, in each case
other than loans as to which the failure to satisfy the
foregoing standards would not have a Material Adverse Effect on
JADE.
Section 2.20. Quality of Representations. The
representations made by JADE in this Agreement are true, correct
and complete in all material respects, and do not omit
statements necessary to make them not misleading under all facts
and circumstances.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PSB
PSB hereby represents and warrants to JADE that, except as
set forth in the PSB Disclosure Schedule (which PSB Disclosure
Schedule qualifies and represents exceptions to all of the
representations and warranties of PSB contained in this
Agreement taken as a whole and does not relate solely to
particular representations and warranties) delivered by PSB to
JADE on or prior to the date hereof:
Section 3.01. Organization.
(a) PSB is a corporation duly organized, validly
existing and in good standing under the laws of the Commonwealth
of Pennsylvania. PSB is a bank holding company duly registered
under the BHC Act. PSB has the corporate power and authority to
carry on its business and operations as now being conducted and
to own and operate the properties and assets now owned and being
operated by it. PSB is not qualified or licensed to do business
as a foreign corporation in any other jurisdiction and is not
required to be so qualified or licensed as the result of the
ownership or leasing of property or the conduct of its business,
except where the failure to be so qualified or licensed would
not have a Material Adverse Effect.
(b) First Penn is a state bank duly organized and
validly existing under the laws of the Commonwealth of
Pennsylvania. First Penn has the corporate power and authority
to carry on its business and operations as now being conducted
and to own and operate the properties and assets now owned and
being operated by it. Neither First Penn nor any other PSB
Subsidiary is qualified or licensed to do business as a foreign
corporation in any other jurisdiction and neither is required to
be so qualified or licensed as the result of the ownership or
leasing of property or the conduct of its business, except where
the failure to be so qualified or licensed would not have a
Material Adverse Effect.
(c) There are no PSB Subsidiaries other than First
Penn or as disclosed in PSB's Annual Report on Form 10-K for the
year ended December 31, 1999.
(d) The deposits of First Penn are insured by the
FDIC to the extent provided in the Federal Deposit Insurance
Act.
(e) The respective minute books of PSB and the PSB
Subsidiaries accurately record, in all material respects, all
material corporate actions of their respective shareholders and
boards of directors (including committees) through the date of
this Agreement.
(f) Prior to the execution of this Agreement, PSB has
delivered to JADE true and correct copies of the articles of
incorporation and the bylaws of PSB and the articles of
incorporation and bylaws of First Penn as in effect on the date
hereof.
Section 3.2. Capital Structure.
(a) The authorized capital stock of PSB consists of
(i) 15,000,000 shares of common stock, no par value ("PSB
Common Stock"), of which, at the date of this Agreement, no
shares are issued and held by PSB as treasury stock and
4,455,007 shares are outstanding, validly issued, fully paid and
nonassessable and free of preemptive rights. Except as set
forth in the PSB Disclosure Schedule, neither PSB nor First Penn
nor any other PSB Subsidiary has or is bound by any
subscription, option, warrant, call, commitment, agreement, plan
or other Right of any character relating to the purchase, sale
or issuance or voting of, or right to receive dividends or other
distributions on any shares of PSB Common Stock or any other
security of PSB or any securities representing the right to
vote, purchase or otherwise receive any shares of PSB Common
Stock or any other security of PSB.
(b) The authorized capital stock of First Penn
consists of 3,000 shares of common stock, par value $.01 per
share, of which 3,000 shares are outstanding, validly issued,
fully paid, nonassessable, free of preemptive rights and owned
by PSB. Neither PSB nor any PSB Subsidiary has or is bound by
any subscription, option, warrant, call, commitment, agreement
or other Right of any character relating to the purchase, sale
or issuance or voting of, or right to receive dividends or other
distributions on any shares of the capital stock of any PSB
Subsidiary or any other security of any PSB Subsidiary or any
securities representing the right to vote, purchase or otherwise
receive any shares of the capital stock or any other security of
any PSB Subsidiary. Either PSB, or First Penn owns all of the
outstanding shares of capital stock of each PSB Subsidiary free
and clear of all liens, security interests, pledges, charges,
encumbrances, agreements and restrictions of any kind or nature.
(c) Neither (i) PSB, (ii) First Penn, nor, (iii) any
other PSB Subsidiary, owns any equity interest, directly or
indirectly, in any other company or controls any other company,
except for equity interests held in the investment portfolios of
PSB or PSB Subsidiaries, equity interests held by PSB
Subsidiaries in a fiduciary capacity, equity interests held in
connection with the commercial loan activities of PSB
Subsidiaries, and equity interests disclosed in PSB's Annual
Report on Form 10-K for the year ended December 31, 1999.
Except as set forth in the PSB Disclosure Schedule, there are no
subscriptions, options, warrants, calls, commitments, agreements
or other Rights outstanding and held by PSB or any PSB
Subsidiary with respect to any other company's capital stock or
the equity of any other person.
(d) To PSB's knowledge, without any independent
investigation, except as disclosed in PSB's proxy statement
dated August 30, 1999, no person or "group" (as that term is
used in Section 13(d)(3) of the Exchange Act) is the beneficial
owner (as defined in Section 13(d) of the Exchange Act) of 5% or
more of the outstanding shares of PSB Common Stock.
Section 3.03. Authority; No Violation.
(a) PSB has full corporate power and authority to
execute and deliver this Agreement and to consummate the
transactions contemplated hereby. First Penn has full corporate
power and authority to execute and deliver the Bank Plan of
Merger and to consummate the Bank Merger. The execution and
delivery of this Agreement by PSB and the consummation by PSB of
the transactions contemplated hereby have been duly and validly
approved by the Board of Directors of PSB and, no other
corporate proceedings on the part of PSB are necessary to
complete the transactions contemplated hereby. This Agreement
has been duly and validly executed and delivered by PSB and,
subject to the receipt of the required approvals of Regulatory
Authorities described in Section 3.04 hereof, constitutes the
valid and binding obligation of PSB, enforceable against PSB in
accordance with its terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights
generally and subject, as to enforceability, to general
principles of equity. The Bank Plan of Merger, upon its
execution and delivery by First Penn concurrently with the
execution and delivery of this Agreement, will constitute the
valid and binding obligation of First Penn, enforceable against
First Penn in accordance with its terms, subject to applicable
conservatorship and receivership provisions of the FDIA, or
insolvency and similar laws affecting creditors' rights
generally and subject, as to enforceability, to general
principles of equity.
(b) (i) The execution and delivery of this Agreement
by PSB, (ii) the execution and delivery of the Bank Plan of
Merger by First Penn, (iii) subject to receipt of approvals from
the Regulatory Authorities referred to in Section 3.04 hereof
and JADE's and PSB's compliance with any conditions contained
therein, the consummation of the transactions contemplated
hereby, and (iv) compliance by PSB with any of the terms or
provisions hereof or of the Bank Plan of Merger will not
(A) conflict with or result in a breach of any provision of the
articles of incorporation or bylaws of PSB or any PSB Subsidiary
or the articles of incorporation or bylaws of First Penn,
(B) violate any statute, code, ordinance, rule, regulation,
judgment, order, writ, decree or injunction applicable to PSB or
any PSB Subsidiary or any of their respective properties or
assets; or (C) violate, conflict with, result in a breach of any
provisions of, constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default),
under, result in the termination of, accelerate the performance
required by, or result in a right of termination or acceleration
or the creation of any lien, security interest, charge or other
encumbrance upon any of the properties or assets of PSB or any
PSB Subsidiary under, any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, deed of trust, license,
lease, agreement or other instrument or obligation to which PSB
or any PSB Subsidiary is a party, or by which they or any of
their respective properties or assets may be bound or affected,
except for such violations, conflicts, breaches or defaults
under clause (B) or (C) hereof which, either individually or in
the aggregate, will not have a Material Adverse Effect on PSB.
Section 3.04. Consents. Except for any required consents,
approvals, filings and registrations from or with the Regulatory
Authorities, and compliance with any conditions contained
therein, and the approval of this Agreement by the shareholders
of PSB, no consents or approvals of, or filings or registrations
with, any public body or authority are necessary, and no
consents or approvals of any third parties are necessary, or
will be, in connection with (a) the execution and delivery of
this Agreement by PSB or the Bank Plan of Merger by First Penn,
and (b) the completion by PSB of the transactions contemplated
hereby or by First Penn of the Bank Merger. PSB has no reason
to believe that (i) any required consents or approvals will not
be received or will be received with conditions, limitations or
restrictions unacceptable to it or which would adversely impact
PSB's ability to complete the transactions contemplated by this
Agreement or that (ii) any public body or authority, the consent
or approval of which is not required or any filing with which is
not required, will object to the completion of the transactions
contemplated by this Agreement.
Section 3.05. Financial Statements.
(a) PSB has previously delivered, or will deliver, to
JADE the PSB Regulatory Reports. The PSB Regulatory Reports
have been, or will be, prepared in all material respects in
accordance with applicable regulatory accounting principles and
practices throughout the periods covered by such statements, and
fairly present, or will fairly present in all material respects,
the financial position, results of operations and changes in
shareholders' equity of PSB as of and for the periods ended on
the dates thereof, in accordance with applicable regulatory
accounting principles applied on a consistent basis.
(b) PSB has previously delivered, or will deliver, to
JADE the PSB Financials. The PSB Financials have been, or will
be, prepared in accordance with generally accepted accounting
principles and practices applied on a consistent basis
throughout the periods covered by such statements, and fairly
present, or will fairly present, the consolidated financial
position, results of operations and cash flows of PSB as of and
for the periods ending on the dates thereof, in accordance with
generally accepted accounting principles.
(c) At the date of each balance sheet included in the
PSB Financials or the PSB Regulatory Reports, neither PSB, First
Penn nor any other PSB Subsidiary (as the case may be) had or
will have any liabilities, obligations or loss contingencies of
any nature (whether absolute, accrued, contingent or otherwise)
of a type required to be reflected in such PSB Financials or the
PSB Regulatory Reports or in the footnotes thereto which are not
fully reflected or reserved against therein or disclosed in a
footnote thereto, except for liabilities, obligations or loss
contingencies which are not material in the aggregate and which
are incurred in the ordinary course of business, consistent with
past practice, and subject, in the case of any unaudited
statements, to normal, recurring audit adjustments and the
absence of footnotes.
Section 3.06. Taxes.
(a) PSB and the PSB Subsidiaries are members of the
same affiliated group within the meaning of IRC Section 1504(a).
PSB has duly filed, and will file, all federal, state and local
tax returns required to be filed by or with respect to PSB and
all PSB Subsidiaries on or prior to the Closing Date (all such
returns being accurate and correct in all material respects) and
has duly paid or will pay, or made or will make, provisions for
the payment of all federal, state and local taxes which have
been incurred by or are due or claimed to be due from PSB and
any PSB Subsidiary by any taxing authority or pursuant to any
tax sharing agreement or arrangement (written or oral) on or
prior to the Closing Date other than taxes which (i) are not
delinquent or (ii) are being contested in good faith.
(b) No consent pursuant to IRC Section 341(f) has
been filed (or will be filed prior to the Closing Date) by or
with respect to PSB or any PSB Subsidiary.
Section 3.07. No Material Adverse Effect. PSB has not
suffered any Material Adverse Effect since June 30, 2000.
Section 3.08 Contracts.
(a) Except as described in PSB's Annual Reports on
Form 10-K to Shareholders for the years ended December 31, 1999,
or on the PSB Disclosure Schedule, delivered or to be delivered
to JADE, neither PSB nor any PSB Subsidiary is a party to or
subject to: (i) any employment, consulting or severance
contract or arrangement with any past or present officer,
director or employee of PSB or any PSB Subsidiary, except for
"at will" arrangements; (ii) any plan, arrangement or contract
providing for bonuses, pensions, options, deferred compensation,
retirement payments, profit sharing or similar arrangements for
or with any past or present officers, directors or employees of
PSB or any PSB Subsidiary; (iii) any collective bargaining
agreement with any labor union relating to employees of PSB or
any PSB Subsidiary; (iv) any agreement which by its terms limits
the payment of dividends by any PSB Subsidiary; (v) any
instrument evidencing or related to indebtedness for borrowed
money whether directly or indirectly, by way of purchase money
obligation, conditional sale, lease purchase, guaranty or
otherwise, in respect of which PSB or any PSB Subsidiary is an
obligor to any person, which instrument evidences or relates to
indebtedness other than deposits, repurchase agreements, bankers
acceptances and "treasury tax and loan" accounts established in
the ordinary course of business and transactions in "federal
funds;" (vi) any contract (other than this Agreement) limiting
the freedom of any PSB Subsidiary to engage in any type of
banking or bank-related business permissible under law or
(vii) any other material contract.
(b) True and correct copies of agreements, plans,
arrangements and instruments referred to in Section 3.08(a) or
described in a footnote to such audited consolidated financial
statements, have been provided to JADE on or before the date
hereof, are listed on the PSB Disclosure Schedule and are in
full force and effect on the date hereof, and neither PSB nor
any PSB Subsidiary (nor, to the knowledge of PSB, any other
party to any such contract, plan, arrangement or instrument) has
breached any provision of, or is in default in any respect under
any term of, any such contract, plan, arrangement or instrument
which breach has resulted in or will result in a Material
Adverse Effect with respect to PSB. No party to any material
contract, plan, arrangement or instrument will have the right to
terminate any or all of the provisions of any such contract,
plan, arrangement or instrument as a result of the transactions
contemplated by this Agreement. None of the employees
(including officers) of PSB or any PSB Subsidiary, possess the
right to terminate their employment as a result of the execution
of this Agreement. No plan, employment agreement, termination
agreement, or similar agreement or arrangement to which PSB or
any PSB Subsidiary is a party or under which PSB or any PSB
Subsidiary may be liable contains provisions which permit an
employee or independent contractor to terminate it without cause
and continue to accrue future benefits thereunder. No such
agreement, plan or arrangement (i) provides for acceleration in
the vesting of benefits or payments due thereunder upon the
occurrence of a change in ownership or control of PSB or any PSB
Subsidiary absent the occurrence of a subsequent event;
(ii) provides for benefits which may cause the disallowance of a
federal income tax deduction under IRC Section 280G; or
(iii) requires PSB or any PSB Subsidiary to provide a benefit in
the form of PSB Common Stock or determined by reference to the
value of PSB Common Stock.
Section 3.09 Ownership of Property; Insurance Coverage.
(a) PSB and the PSB Subsidiaries have, or will have
as to property acquired after the date hereof, good and, as to
real property, marketable title to all assets and properties
owned by PSB or any PSB Subsidiary in the conduct of its
business, whether such assets and properties are real or
personal, tangible or intangible, including assets and property
reflected in the balance sheets contained in the PSB Regulatory
Reports and in the PSB Financials or 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 date of such balance sheets), subject to no
encumbrances, liens, mortgages, security interests or pledges,
except (i) those items that secure liabilities for borrowed
money and that are described in the PSB Disclosure Schedule or
permitted under Article IV hereof and (ii) statutory liens for
amounts not yet delinquent or which are being contested in good
faith. PSB and the PSB Subsidiaries, as lessee, have the right
under valid and subsisting leases of real and personal
properties used by PSB and the PSB Subsidiaries in the conduct
of their businesses to occupy and use all such properties as
presently occupied and used by each of them.
(b) With respect to all agreements pursuant to which
PSB or any PSB Subsidiary has purchased securities subject to an
agreement to resell, if any, PSB or such PSB Subsidiary, as the
case may be, has a valid, perfected first lien or security
interest in the securities or other collateral securing the
repurchase agreement, and the value of such collateral equals or
exceeds the amount of the debt secured thereby.
(c) PSB and the PSB Subsidiaries currently maintain
insurance in amounts considered by PSB to be reasonable for
their respective operations and similar in scope and coverage to
that maintained by other businesses similarly engaged. Neither
PSB nor any PSB Subsidiary has received notice from any
insurance carrier that (i) such insurance will be cancelled or
that coverage thereunder will be reduced or eliminated or
(ii) premium costs with respect to such insurance will be
substantially increased. There are presently no material claims
pending under such policies of insurance and no notices have
been given by PSB or any PSB Subsidiary under such policies.
All such insurance is valid and enforceable and in full force
and effect, and within the last three years PSB has received
each type of insurance coverage for which it has applied and
during such periods has not been denied indemnification for any
material claims submitted under any of its insurance policies.
Section 3.10. Legal Proceedings. Neither PSB nor any PSB
Subsidiary is a party to any, and there are no pending or, to
the best of PSB's knowledge, threatened legal, administrative,
arbitration or other proceedings, claims (whether asserted or
unasserted), actions or governmental investigations or inquiries
of any nature (i) against PSB or any PSB Subsidiary, (ii) to
which PSB's or any PSB Subsidiary's assets are or may be
subject, (iii) challenging the validity or propriety of any of
the transactions contemplated by this Agreement, or (iv) which
could adversely affect the ability of PSB to perform under this
Agreement, except for any proceedings, claims, actions,
investigations or inquiries referred to in clauses (i) or (ii)
which, individually or in the aggregate, could not be reasonably
expected to have a Material Adverse Effect.
Section 3.11. Compliance With Applicable Law.
(a) PSB and the PSB Subsidiaries hold all licenses,
franchises, permits and authorizations necessary for the lawful
conduct of their businesses under, and have complied in all
material respects with, applicable laws, statutes, orders, rules
or regulations of any federal, state or local governmental
authority relating to them, other than where such failure to
hold or such noncompliance will neither result in a limitation
in any material respect on the conduct of their businesses nor
otherwise have a Material Adverse Effect.
(b) Neither PSB nor any PSB Subsidiary has received
any notification or communication from any Regulatory Authority
(i) asserting that PSB or any PSB Subsidiary is not in
compliance with any of the statutes, regulations or ordinances
which such Regulatory Authority enforces; (ii) threatening to
revoke any license, franchise, permit or governmental
authorization which is material to PSB or any PSB Subsidiary;
(iii) requiring or threatening to require PSB or any PSB
Subsidiary, or indicating that PSB or any PSB Subsidiary may be
required, to enter into a cease and desist order, agreement or
memorandum of understanding or any other agreement restricting
or limiting, or purporting to restrict or limit, in any manner
the operations of PSB or any PSB Subsidiary, including without
limitation any restriction on the payment of dividends; or
(iv) directing, restricting or limiting, or purporting to
direct, restrict or limit, in any manner the operations of PSB
or any PSB Subsidiary, including without limitation any
restriction on the payment of dividends (any such notice,
communication, memorandum, agreement or order described in this
sentence is hereinafter referred to as a "Regulatory
Agreement"). Neither PSB nor any PSB Subsidiary has consented
to or entered into any Regulatory Agreement, except as
heretofore disclosed to JADE.
Section 3.12. ERISA. PSB has previously made available to
JADE true and complete copies of the PSB Employee Benefit Plans,
all of which are set forth on the PSB Disclosure Schedule,
maintained or contributed to for the benefit of the employees or
former employees (including retired employees) and any
beneficiaries thereof or directors or former directors of PSB or
any PSB Subsidiary, together with (i) the most recent actuarial
(if any) and financial reports relating to those plans which
constitute "qualified plans" under IRC Section 401(a), (ii) the
most recent annual reports relating to such plans filed by them,
respectively, with any government agency, and (iii) all rulings
and determination letters which pertain to any PSB Employee
Benefit Plans. Neither PSB nor any PSB Subsidiary, and no
pension plan maintained by PSB or any PSB Subsidiary, has
incurred, directly or indirectly, within the past six (6) years
any liability under Title IV of ERISA (including to the Pension
Benefit Guaranty Corporation) or to the IRS with respect to any
pension plan qualified under IRC Section 401(a) except
liabilities to the Pension Benefit Guaranty Corporation pursuant
to ERISA Section 4007, all of which have been fully paid, nor
has any reportable event under ERISA Section 4043(b) occurred
with respect to any such pension plan. With respect to each PSB
Employee Benefit Plan that is subject to Title IV of ERISA, the
present value of the accrued benefits under such plan, based
upon the actuarial assumptions used for funding purposes in the
plan's most recent actuarial report did not, as of its latest
valuation date, exceed the then current value of the assets of
such plan allocable to such accrued benefits. With respect to
each PSB Employee Benefit Plan, PSB will have made on or prior
to the Closing Date, all payments required to be made by it
prior to the Closing Date and will have accrued as of the
Closing Date all payments due but not yet payable so that there
will not have been nor will there be any accumulated funding
deficiencies (as defined in ERISA or the Code) or waivers of
such deficiencies. Neither PSB nor any PSB Subsidiary has
incurred or is subject to any liability under ERISA Section 4201
for a complete or partial withdrawal from a multi-employer plan.
All "employee benefit plans," as defined in ERISA Section 3(3),
comply, and in the past six (6) years have complied, in all
material respects with (i) relevant provisions of ERISA and
(ii), in the case of plans intended to qualify for favorable
income tax treatment, provisions of the IRC relevant to such
treatment. No prohibited transaction (which shall mean any
transaction prohibited by ERISA Section 406 and not exempt under
ERISA Section 408 or any transaction prohibited under IRC
Section 4975) has occurred within the past six (6) years with
respect to any employee benefit plan maintained by PSB or any
PSB Subsidiary that would result in the imposition, directly or
indirectly, of an excise tax under IRC Section 4975 or other
penalty under ERISA or the IRC, which individually or in the
aggregate, has resulted in or will result in a Material Adverse
Effect with respect to PSB. PSB and the PSB Subsidiaries
provide continuation coverage under group health plans for
separating employees and "qualified beneficiaries" in accordance
with the provisions of IRC Section 4980B(f). Such group health
plans are in compliance with Section 1862(b)(1) of the Social
Security Act. There are no pending actions, claims or lawsuits
which have been asserted or instituted against any of PSB's
Employee Benefit Plans, the assets of any of the trusts under
such Plans, the plan sponsor, the plan administrator or against
any fiduciary of any of PSB's Employee Benefit Plans (other than
routine benefit claims) nor does PSB have knowledge of facts
which could form the basis of any such action, claim or lawsuit.
There are no investigations or audits of any of PSB's Employee
Benefit Plans, any trusts under such plans, the plan sponsor,
the plan administrator or any fiduciary of any of PSB's Employee
Benefit Plans which have been threatened or instituted nor does
PSB's have knowledge of facts which could form the basis for any
such investigation or audit. No event has occurred or will
occur which will result in liability to PSB in connection with
any Employee Benefit Plan established, maintained, or
contributed to (currently or previously) by PSB or by any other
entity which, together with PSB, constitute elements of either
(i) a controlled group of corporations (within the meaning of
IRC Section 414(b)), (ii) a group of trades or businesses under
common control (within the meaning of IRC Sections 414(c) or
4001), (iii) an affiliated service group (within the meaning of
IRC Section 414(m), or (iv) another arrangement covered by IRC
Section 414(o).
Section 3.13. Securities Documents. PSB has delivered, or
will deliver, to JADE copies of its (i) annual reports on SEC
Form 10-K for the years ended December 31, 1999 and 1998, and
(ii) proxy statement dated August 30, 1999 used in connection
with its annual meeting of shareholders held on October 4, 1999.
Such reports and such proxy materials complied, at the time
filed with the SEC, in all material respects, with the Exchange
Act and the applicable rules and regulations of the SEC.
Section 3.14. Brokers and Finders. Except for Tucker
Anthony Cleary Gull ("Tucker Anthony"), neither PSB nor any PSB
Subsidiary, nor any of their respective officers, directors,
employees or agents, has employed any broker, finder or
financial advisor, or incurred any liability for any fees or
commissions to any such person, in connection with the
transactions contemplated by this Agreement or in connection
with any transaction other than the Merger, or, except for its
commitments disclosed in the PSB Disclosure Schedule, incurred
any liability or commitment for any fees or commissions to any
such person in connection with the transactions contemplated by
this Agreement or in connection with any transaction other than
the Merger, which has not been reflected in the PSB Financials.
Section 3.15. Environmental Matters. To the knowledge of
PSB, neither PSB nor any properties owned or operated by PSB has
been or is in violation of or liable under any Environmental Law
which violation or liability, individually or in the aggregate,
resulted in, or will result, in a Material Adverse Effect with
respect to PSB. There are no actions, suits or proceedings, or
demands, claims, notices or investigations (including without
limitation notices, demand letters or requests for information
from any environmental agency) instituted or pending, or to the
knowledge of PSB, threatened, relating to the liability of any
property owned or operated by PSB under any Environmental Law.
Section 3.16. Loan Portfolio. The allowance for loan
losses reflected, and to be reflected, in the PSB Regulatory
Reports, and shown, and to be shown, on the balance sheets
contained in the PSB Financials have been, and will be,
established in accordance with the requirements of generally
accepted accounting principles and all applicable regulatory
criteria.
Section 3.17. Information to be Supplied. The information
to be supplied by PSB for inclusion in the Registration
Statement will not, at the time the Registration Statement is
distributed to JADE Shareholders, contain any untrue statement
of a material fact or omit to state any material fact necessary
in order to make the statements therein not misleading. The
information supplied, or to be supplied, by PSB for inclusion in
the Applications will, at the time such documents are filed with
any Regulatory Authority, be accurate in all material aspects.
Section 3.18. Related Party Transactions. Except as
disclosed in the footnotes to the PSB Financials or the PSB
Disclosure Schedule, PSB is not a party to any transaction
(including any loan or other credit accommodation) with any
Affiliate of PSB. Any such transaction (a) was made in the
ordinary course of business, (b) was made on substantially the
same terms, including interest rates and collateral, as those
prevailing at the time for comparable transactions with other
Persons, and (c) did not involve more than the normal risk of
collectability or present other unfavorable features. No loan
or credit accommodation to any Affiliate of PSB is presently in
default or, during the three year period prior to the date of
this Agreement, has been in default or has been restructured,
modified or extended. PSB has not been notified that principal
and interest with respect to any such loan or other credit
accommodation will not be paid when due or that the loan grade
classification accorded such loan or credit accommodation by IGA
is inappropriate.
Section 3.19. Loans. Each loan reflected as an asset in
the PSB Financial Statements (i) is evidenced by notes,
agreements or other evidences of indebtedness which are true,
genuine and correct, (ii) to the extent secured, has been
secured by valid liens and security interests which have been
perfected, and (iii) is the legal, valid and binding obligation
of the obligor named therein, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent conveyance
and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles, in each case
other than loans as to which the failure to satisfy the
foregoing standards would not have a Material Adverse Effect on
PSB.
Section 3.20. Quality of Representations. The
representations made by PSB in this Agreement are true, correct
and complete in all material respects and do not omit statements
necessary to make the representations not misleading under the
circumstances.
ARTICLE IV
COVENANTS OF THE PARTIES
Section 4.01. Conduct of Business. From the date of this
Agreement to the Closing Date, the parties will conduct their
business and engage in transactions, including extensions of
credit, only in the ordinary course and consistent with past
practice and policies, except as otherwise required by this
Agreement or with the written consent of the other party. Each
party will use reasonable good faith efforts to (i) preserve its
business organizations intact, (ii) maintain good relationships
with employees, and (iii) preserve for itself the good will of
customers and others with whom business relationships exist.
From the date hereof to the Closing Date, except as otherwise
consented to or approved by PSB in writing or as permitted or
required by this Agreement, JADE will not:
(i) except for an amendment to the name of the
corporation, amend or change any provision of its articles of
incorporation, charter, or bylaws ;
(ii) change the number of authorized shares of
its capital stock or issue or grant any option, warrant, call,
commitment, subscription, Right or agreement of any character
relating to its authorized or issued capital stock or any
securities convertible into shares of such stock, or split,
combine or reclassify any shares of capital stock, or declare,
set aside or pay any dividend or other distribution in respect
of capital stock, or redeem or otherwise acquire any shares of
capital stock.
(iii) grant any severance or termination pay,
(other than pursuant to written policies or written agreements
of JADE in effect on the date hereof and provided to PSB prior
to the date hereof), enter into any new or amend any existing
employment agreement with, or increase the compensation of, any
employee, officer or director of JADE, except for routine
periodic increases, individually and in the aggregate, in
accordance with past practice, or hire or agree to hire any
additional employees, except for hiring in accordance with past
practice;
(iv) merge or consolidate with any other
corporation; sell or lease all or any substantial portion of its
assets or business; make any acquisition of all or any
substantial portion of the business or assets of any other
person, firm, association, corporation or business organization
other than in connection with the collection of any loan or
credit arrangement and any other person; enter into a purchase
and assumption transaction with respect to deposits and
liabilities; permit the revocation or surrender of its
certificate of authority to maintain, or file an application for
the relocation of, any existing branch office, or file an
application for a certificate of authority to establish a new
branch office;
(v) sell or otherwise dispose of any asset other
than in the ordinary course of business consistent with past
practice; subject any asset to a lien, pledge, security interest
or other encumbrance (other than in connection with deposits,
repurchase agreements, bankers acceptances, "treasury tax and
loan" accounts established in the ordinary course of business
and transactions in "federal funds" and the satisfaction of
legal requirements in the exercise of trust powers) other than
in the ordinary course of business consistent with past
practice; incur any indebtedness for borrowed money (or
guarantee any indebtedness for borrowed money), except in the
ordinary course of business consistent with past practice;
(vi) take any action which would result in any
of the representations and warranties set forth in this
Agreement becoming untrue as of any date after the date hereof
or in any of the conditions set forth in Article V hereof not
being satisfied;
(vii) change any method, practice or principle
of accounting, except as may be required from time to time by
GAAP (without regard to any optional early adoption date) or any
Regulatory Authority;
(viii) waive, release, grant or transfer any
rights of value or modify or change in any material respect any
existing material agreement to which they are a party, other
than in the ordinary course of business, consistent with past
practice;
(ix) implement any pension, retirement, profit
sharing, bonus, welfare benefit or similar plan or arrangement
that was not in effect on the date of this Agreement, or
materially amend any existing plan or arrangement except to the
extent such amendments do not result in an increase in cost;
(x) purchase any security for its investment
portfolio not rated investment grade or higher by Standard &
Poor's Corporation or "A-" by Moody's Investor Services, Inc.,
except in the ordinary course of business consistent with past
practice;
(xi) except as set forth in their respective
Disclosure Schedule, enter into, renew, extend or modify any
other transaction with any Affiliate other than a subsidiary;
(xii) enter into any interest rate swap or
similar commitment, agreement or arrangement, except in the
ordinary course of business;
(xiii) except for the execution of this
Agreement, take any action that would give rise to a right of
payment to any individual under any employment agreement; or
(xiv) agree to do any of the foregoing.
For purposes of this Section 4.01, it shall not be
considered in the ordinary course of business for JADE to do any
of the following: (i) make any capital expenditure of $100,000
or more not disclosed on JADE Disclosure Schedule 4.01, without
the prior written consent of the other party; (ii) make any
sale, assignment, transfer, pledge, hypothecation or other
disposition of any assets having a book or market value,
whichever is greater, in the aggregate in excess of $100,000,
other than pledges of assets to secure government deposits, to
exercise trust powers, sales of assets received in satisfaction
of debts previously contracted in the normal course of business,
issuance of loans, or transactions in the investment securities
portfolio or repurchase agreements made, in each case, in the
ordinary course of business; or (iii) undertake or enter any
lease, contract or other commitment for its account, other than
in the normal course of providing credit to customers as part of
its banking business, involving a payment of more than $100,000
annually, or containing a material financial commitment and
extending beyond 12 months from the date hereof.
Section 4.02. Access; Confidentiality.
(a) From the date of this Agreement through the
Closing Date, JADE or PSB, as the case may be, shall afford to,
and PSB and JADE shall cause each PSB Subsidiary and JADE
Subsidiary to afford to, the other party and its authorized
agents and representatives, complete access to their respective
properties, assets, books and records and personnel, at
reasonable hours and after reasonable notice for the purpose of
undertaking a comprehensive due diligence investigation; and the
officers of JADE and PSB will furnish any person making such
investigation on behalf of the other party with such financial
and operating data and other information with respect to the
businesses, properties, assets, books and records and personnel
as the person making such investigation shall from time to time
reasonably request.
(b) JADE and PSB each agree to conduct such
investigation and discussions hereunder in a manner so as not to
interfere unreasonably with normal operations and customer and
employee relationships of the other party.
(c) In addition to the access permitted by
subparagraph (a) above, from the date of this Agreement through
the Closing Date, each of PSB and JADE shall permit employees of
the other reasonable access to and participation in matters
relating to problem loans, loan restructurings and loan work-
outs, provided that nothing contained in this subparagraph shall
be construed to grant PSB or JADE or any of their respective
employees any final decision-making authority with respect to
such matters.
(d) If the transactions contemplated by this
Agreement shall not be consummated, JADE and PSB will each
destroy or return all documents and records obtained from the
other party or its representatives, during the course of its
investigation and will cause all information with respect to the
other party obtained pursuant to this Agreement or preliminary
thereto to be kept confidential, except to the extent such
information becomes public through no fault of the party to whom
the information was provided or any of its representatives or
agents and except to the extent disclosure of any such
information is legally required. JADE and PSB shall each give
prompt notice to the other party of any contemplated disclosure
where such disclosure is so legally required.
Section 4.03. Regulatory Matters and Consents.
(a) PSB and JADE will prepare all Applications and
make all filings for, and use their best efforts to obtain as
promptly as practicable after the date hereof, all necessary
permits, consents, approvals, waivers and authorizations of all
Regulatory Authorities necessary or advisable to consummate the
transactions contemplated by this Agreement.
(b) JADE will furnish PSB with all information
concerning JADE as may be necessary or advisable in connection
with any Application or filing made by or on behalf of PSB to
any Regulatory Authority in connection with the transactions
contemplated by this Agreement.
(c) PSB will promptly furnish JADE with copies of all
material written communications to, or received by PSB or any
PSB Subsidiary from, any Regulatory Authority in respect of the
transactions contemplated hereby.
(d) PSB will furnish JADE with (i) copies of all
Applications prior to filing with any Regulatory Authority and
provide JADE a reasonable opportunity to suggest changes to such
Applications, which suggested changes PSB may, in its reasonable
discretion accept or reject. JADE and PSB will jointly prepare
the Registration Statement prior to filing with the Securities
and Exchange Commission and provide each other a reasonable
opportunity to suggest changes to the Registration Statement,
which suggested changes.
(e) Each party will cooperate in the foregoing
matters and will furnish all information as may be necessary or
advisable in connection with any Application or filing
(including the Registration Statement and any report filed with
the SEC) made to any Regulatory Authority in connection with the
transactions contemplated by this Agreement, and such
information will be accurate and complete in all material
respects. In connection therewith, the parties will provide
certificates and other documents reasonably requested.
Section 4.04. Taking of Necessary Action.
(a) PSB and JADE shall each use its best efforts in
good faith, and PSB and JADE shall each cause its Subsidiaries
to use their best efforts in good faith, to (i) furnish such
information as may be required in connection with the
preparation of the documents referred to in Section 4.03 of this
Agreement, and (ii) take or cause to be taken all action
necessary or desirable on its part using its best efforts so as
to permit completion of the Merger including, without
limitation, (A) obtaining the consent or approval of each
individual, partnership, corporation, association or other
business or professional entity whose consent or approval is
required or desirable for consummation of the transactions
contemplated hereby (including assignment of leases without any
change in terms), provided that neither JADE nor PSB or its
Subsidiaries shall agree to make any payments or modifications
to agreements in connection therewith without the prior written
consent of the other party, and (B) requesting the delivery of
appropriate opinions, consents and letters from its counsel and
independent auditors. No party hereto shall take, or cause, or
to the best of its ability permit to be taken, any action that
would substantially impair the prospects of completing the
Merger pursuant to this Agreement; provided that nothing herein
contained shall preclude PSB or JADE from exercising its rights
under this Agreement.
(b) JADE and PSB shall jointly prepare the
Registration Statement to be mailed to Jade shareholders in
connection with the meeting of its shareholders and transactions
contemplated hereby, and to be filed by PSB with the SEC, which
Registration Statement shall conform in all material respects to
all applicable legal requirements.
Section 4.05. Certain Agreements.
(a) In the event of any threatened or actual claim,
action, suit, proceeding or investigation, whether civil,
criminal or administrative, whether or not brought by or in the
name of JADE, in which any person who is now, or has been at any
time prior to the date of this Agreement, or who becomes prior
to the Effective Date, a director or officer of JADE (the
"Indemnified Parties") is, or is threatened to be, made a party
to a suit based in whole or in part on, or arising in whole or
in part out of, or pertaining to (i) the fact that he is or was
a director, officer or employee of JADE, or any of its
respective predecessors (including in such person's capacity is
a trustee of the ESOP or any pension plan of JADE) or (ii) this
Agreement or any of the transactions contemplated hereby,
whether in any case asserted or arising before or after the
Effective Date, the parties hereto agree to cooperate and use
their best efforts to defend against and respond thereto to the
maximum extent permitted by the BCL and the Articles of
Incorporation and Bylaws of JADE. On or after the Effective
Date, PSB shall indemnify, defend and hold harmless all prior
and then-existing directors and officers of JADE (including in
such person's capacity as a trustee of any pension plan of
JADE), against (i) all losses, claims, damages, costs, expenses,
liabilities or judgments or amounts that are paid in settlement
(with the approval of PSB which approval shall not be
unreasonably withheld) of or in connection with any claim,
action, suit, proceeding or investigation, whether or not
brought by or in the name of JADE, based in whole or in part on
or arising in whole or in part out of the fact that such person
is or was a director, officer or employee of JADE, whether
pertaining to any matter existing or occurring at or prior to or
after the Effective Date and whether asserted or claimed prior
to, or at or after, the Effective Date ("Indemnified
Liabilities") and (ii) all Indemnified Liabilities based in
whole or in part on, or arising in whole or in part out of, or
pertaining to this Agreement or the transactions contemplated
hereby, to the same extent as such officer or director would
have been entitled to indemnification by JADE as of the date
hereof including the right to advancement of expenses; provided,
however, that any such officer, director or employee of JADE may
not be indemnified by PSB if such indemnification is prohibited
by applicable law.
(b) PSB shall maintain JADE's existing directors' and
officers' liability insurance policy (or a policy providing
comparable coverage amounts on terms generally no less
favorable, including PSB's existing policy if it meets the
foregoing standard) covering persons who are currently covered
by such insurance for a period of seven (7) years after the
Effective Date; provided, however, that in no event shall PSB be
obligated to expend, in order to maintain or provide insurance
coverage pursuant to this Section 4.05(b), any amount per annum
in excess of 150% of the amount of the annual premiums paid as
of the date hereof by JADE for such insurance (the "Maximum
Amount"). If the amount of the annual premiums necessary to
maintain or procure such insurance coverage exceeds the Maximum
Amount, PSB shall use all reasonable efforts to maintain the
most advantageous policies of directors' and officers' insurance
obtainable for an annual premium equal to the Maximum Amount.
Section 4.06. No Other Bids and Related Matters. So long
as this Agreement remains in effect, without the consent of PSB,
JADE shall not, nor shall it permit any JADE Subsidiary or any
other Affiliate or any officer, director or employee, or any
investment banker, attorney, accountant or other representative
retained by it, any JADE Subsidiary or any other Affiliate to,
directly or indirectly, solicit, encourage, initiate or engage
in discussions or negotiations with, or respond to requests for
information, inquiries, or other communications from, any person
other than PSB concerning the fact of, or the terms and
conditions of, this Agreement, or concerning any acquisition of
JADE, any JADE Subsidiary, or any assets or business
thereof (except that their respective officers may respond to
inquiries from analysts, Regulatory Authorities and holders of
JADE Common Stock, as the case may be, in the ordinary course of
business). JADE shall notify PSB immediately if (i) any such
discussions or negotiations are sought to be initiated with it
by any other person, or (ii) if any such requests for
information, inquiries, proposals or communications are received
from any other person, except analysts, Regulatory Authorities
and holders of JADE Common Stock in the ordinary course of
business. Notwithstanding the foregoing, the provisions of this
Section 4.06 shall not be applicable if the Board of Directors
of JADE has been advised by counsel in writing that compliance
with this Section 4.06 would constitute a breach of fiduciary
duty.
Section 4.07. Duty to Advise; Duty to Update Disclosure
Schedules. The parties shall promptly advise each other of any
change or event having a Material Adverse Effect or which it
believes would or would be reasonably likely to cause or
constitute a material breach of any of its representations,
warranties or covenants set forth herein. The parties shall
update their respective Disclosure Schedules as promptly as
practicable after the occurrence of an event or fact which, if
such event or fact had occurred prior to the date of this
Agreement, would have been disclosed in the respective
Disclosure Schedules. The delivery of such updated Disclosure
Schedules shall not relieve the parties from any breach or
violation of this Agreement and shall not have any effect for
the purposes of determining the satisfaction of the condition
set forth in Sections 5.02(c) hereof.
Section 4.08. Board and Committee Minutes. Each of PSB
and JADE shall provide the other, within 30 days after any
meeting of the Board of Directors of PSB or JADE or any
Subsidiary, or any committee thereof, or any senior management
committee, a copy of the minutes of such meeting, except that
with respect to any meeting held within 30 days of the Closing
Date, such minutes shall be provided prior to the Closing Date.
Section 4.09. Additional Undertakings by PSB and JADE.
(a) Reserves and Merger-Related Costs. From and
after the date of this Agreement, JADE shall on or before the
Effective Date, establish such additional accruals and reserves,
if any, as may be necessary to conform the accounting reserve
practices and methods (including credit loss practices and
methods) of JADE to those of PSB (as such practices and methods
are to be applied to JADE from and after the Closing Date) and
PSB's plans with respect to the conduct of the business of JADE
following the Merger and otherwise to reflect Merger-related
expenses and costs incurred by JADE, provided, however, that
JADE shall not be required to take such action (i) other than
immediately prior to Closing; and (ii) unless PSB agrees in
writing that all conditions to closing set forth in Section 5.02
have been satisfied or waived (except for the expiration of any
applicable waiting periods); prior to the delivery by PSB of the
writing referred to in the preceding clause, JADE shall provide
PSB a written statement, certified without personal liability by
the chief executive officer of JADE and dated the date of such
writing, that the representation made in Section 2.15 hereof is
true as of such date or, alternatively, setting forth in detail
the circumstances that prevent such representation from being
true as of such date; and no accrual or reserve made by JADE
pursuant to this subsection, or any litigation or regulatory
proceeding arising out of any such accrual or reserve, shall
constitute or be deemed to be a breach or violation of any
representation, warranty, covenant, condition or other provision
of this Agreement or to constitute a termination event within
the meaning of Section 6.01 hereof.
(b) From and after the date of this agreement, JADE
shall:
(i) Shareholders Meeting. Submit this Agreement
to its shareholders for approval at a meeting to be held on or
before March 31, 2001, and use its best efforts to cause its
Boards of Director to unanimously recommend approval of this
Agreement to its shareholders;
(c) From and after the date of this Agreement, PSB
and JADE shall each:
(i) Filings and Approvals. Cooperate with the
other in the preparation and filing, as soon as practicable, of
(A) the Applications, (B) the Registration Statement, (C) all
other documents necessary to obtain any other approvals and
consents required to effect the completion of the Merger, and
(D) all other documents contemplated by this Agreement;
(ii) Committee Meetings. Permit a
representative of the other, who is reasonably acceptable to it,
to attend all committee meetings of its management, including,
without limitation, any loan or asset/liability committee. Each
party shall respond reasonably and in good faith to any request
of the other to permit a representative, who is reasonably
acceptable to it, to attend any meeting of its Board of
Directors or the Executive Committee thereof;
(iii) Public Announcements. Cooperate and cause
their respective officers, directors, employees and agents to
cooperate in good faith, consistent with their respective legal
obligations, in the preparation and distribution of, and agree
upon the form and substance of, any press release related to
this Agreement and the transactions contemplated hereby, and any
other public disclosures related thereto, including without
limitation communications to their respective shareholders,
internal announcements and customer disclosures, but nothing
contained herein shall prohibit either party from making any
disclosure which its counsel deems legally necessary;
(iv) Maintenance of Insurance. Maintain, and
cause their Subsidiaries to maintain, insurance in such amounts
as are reasonable to cover such risks as are customary in
relation to the character and location of its properties and the
nature of its business;
(v) Maintenance of Books and Records. Maintain,
and cause their respective Subsidiaries to maintain, books of
account and records in accordance with generally accepted
accounting principles applied on a basis consistent with those
principles used in preparing the financial statements heretofore
delivered;
(vi) Delivery of Securities Documents. Deliver
to the other copies of all Securities Documents simultaneously
with the filing thereof;
(vii) Taxes. File all federal, state, and local
tax returns required to be filed by them or their respective
Subsidiaries on or before the date such returns are due
(including any extensions) and pay all taxes shown to be due on
such returns on or before the date such payment is due; and
(viii) List of Nonperforming Assets. Provide
the other, within ten (10) days of the end of each calendar
month, a written list of its nonperforming assets as of the end
of such month.
Section 4.10. Employee Benefits and Termination Benefits.
(a) Employee Benefits. On and after the Effective
Date, the employee pension and welfare benefit plans of PSB and
JADE may, at PSB's election and subject to the requirements of
the IRC, continue to be maintained separately or consolidated,
provided, however, that JADE employees shall receive benefits
that are substantially similar to the benefits to which PSB
employees in similar jobs or job classifications are entitled to
to on the Effective Date. In the event of a consolidation of
any or all of such plans or in the event of termination of the
JADE benefit plans, JADE employees shall receive credit for
service with JADE under any PSB benefit plan, or new PSB benefit
plan in which such employees would be eligible to enroll for
purposes of eligibility and vesting determination, but not for
purposes of benefit accrual.
Section 4.11. Stock Option Plan. PSB will use its best
efforts to have its shareholders ratify either: (i) a new stock
option and management recognition plan for the officers and
directors of PSB and the Bank; or (ii) an increase in the number
of shares authorized under the current PSB stock option and
management recognition plan; to allow option grants to be made
to directors and senior officers of PSB and First Penn within
one (1) year of the Effective Date.
ARTICLE V
CONDITIONS
Section 5.01. Conditions to JADE's Obligations under this
Agreement. The obligations of JADE hereunder shall be subject
to satisfaction at or prior to the Closing Date of each of the
following conditions, unless waived by JADE pursuant to
Section 7.03 hereof:
(a) Corporate Proceedings. All action required to be
taken by, or on the part of, PSB and First Penn to authorize the
execution, delivery and performance of this Agreement and the
Bank Plan of Merger, respectively, and the consummation of the
transactions contemplated by this Agreement and the Bank Plan of
Merger shall have been duly and validly taken by PSB and First
Penn; and JADE shall have received certified copies of the
resolutions evidencing such authorizations;
(b) Covenants. The obligations and covenants of PSB
required by this Agreement to be performed by PSB at or prior to
the Closing Date shall have been duly performed and complied
with in all material respects;
(c) Representations and Warranties. The
representations and warranties of PSB set forth in this
Agreement shall be true and correct, as of the date of this
Agreement, and as of the Closing Date as though made on and as
of the Closing Date, except as to any representation or warranty
(i) which specifically relates to an earlier date or (ii) where
the breach of the representation or warranty would not, either
individually or in the aggregate, constitute a Material Adverse
Effect with respect to PSB;
(d) Approvals of Regulatory Authorities. PSB shall
have received all required approvals of Regulatory Authorities
of the Merger and the Bank Merger, and delivered copies thereof
to JADE; and all notice and waiting periods required thereunder
shall have expired or been terminated;
(e) Registration Statement. The Registration
Statement shall be effective under the Securities Act and no
proceedings shall be pending or threatened by the SEC to suspend
the effectiveness of the Registration Statement; all required
approvals by state securities or "blue sky" authorities with
respect to the transactions contemplated by this Agreement,
shall have been obtained; and neither the Registration Statement
nor any such approval by state securities or "blue sky"
authorities shall be subject to a stop order or threatened stop
order by the SEC or any such authority;
(f) No Injunction. There shall not be in effect any
order, decree or injunction of a court or agency of competent
jurisdiction which enjoins or prohibits consummation of the
transactions contemplated hereby;
(g) No Material Adverse Effect. Since June 30, 2000,
there shall not have occurred any Material Adverse Effect with
respect to PSB;
(h) Officer's Certificate. PSB shall have delivered
to JADE a certificate, dated the Closing Date and signed,
without personal liability, by its chairman or president, to the
effect that the conditions set forth in subsections (a) through
(e) of this Section 5.01 have been satisfied, to the best
knowledge of the officer executing the same;
(i) Opinion of PSB's Counsel. JADE shall have
received an opinion of Dilworth Paxson LLP, counsel to PSB,
dated the Closing Date, in form and substance reasonably
satisfactory to JADE and its counsel to the effect set forth on
Exhibit "B" attached hereto;
(j) Approval of JADE's Shareholders. This Agreement
shall have been approved by the shareholders of JADE by such
vote as is required under JADE's articles of incorporation and
bylaws and by law;
(k) Investment Banking Opinion. JADE shall have
received an oral opinion from Berwind on or before the date of
this Agreement, and updated in writing as of a date within ten
(10) days of mailing the Registration Statement, to the effect
that the consideration to be received by shareholders of JADE
pursuant to this Agreement is fair, from a financial point of
view, to such shareholders; and
Section 5.02. Conditions to PSB's Obligations under this
Agreement. The obligations of PSB hereunder shall be subject to
satisfaction at or prior to the Closing Date of each of the
following conditions, unless waived by PSB pursuant to
Section 7.03 hereof:
(a) Corporate Proceedings. All action required to be
taken by, or on the part of, JADE and IGA to authorize the
execution, delivery and performance of this Agreement and the
Bank Plan of Merger, respectively, and the consummation of the
transactions contemplated by this Agreement and the Bank Plan of
Merger shall have been duly and validly taken by JADE and IGA;
and PSB shall have received certified copies of the resolutions
evidencing such authorizations;
(b) Covenants. The obligations and covenants of
JADE, required by this Agreement to be performed by it at or
prior to the Closing Date shall have been duly performed and
complied with in all material respects;
(c) Employment Agreements. John J. O' Connell,
Mario L. Incollingo, Jr. and Frank J. Moran shall have executed
their respective employment agreements and retainer agreement
attached hereto as Exhibits E, F and G;
(d) Representations and Warranties. The
representations and warranties of JADE set forth in this
Agreement shall be true and correct as of the date of this
Agreement, and as of the Closing Date as though made on and as
of the Closing Date, except as to any representation or warranty
(i) which specifically relates to an earlier date or (ii) where
the breach of the representation or warranty would not, either
individually or in the aggregate, result in a Material Adverse
Effect with respect to JADE;
(e) Approvals of Regulatory Authorities. PSB shall
have received all required approvals of Regulatory Authorities
for the Merger and the Bank Merger, without the imposition of
any term or condition that would have a Material Adverse Effect
on PSB upon completion of the Merger; and all notice and waiting
periods required thereunder shall have expired or been
terminated;
(f) Registration Statement. The Registration
Statement shall be effective under the Securities Act and no
proceedings shall be pending or threatened by the SEC to suspend
the effectiveness of the Registration Statement; all required
approvals by state securities or "blue sky" authorities with
respect to the transactions contemplated by this Agreement,
shall have been obtained; and neither the Registration Statement
nor any such approval by state securities or "blue sky"
authorities shall be subject to a stop order or threatened stop
order by the SEC or any such authority;
(g) No Injunction. There shall not be in effect any
order, decree or injunction of a court or agency of competent
jurisdiction which enjoins or prohibits consummation of the
transactions contemplated hereby;
(h) No Material Adverse Effect. Since June 30, 2000,
there shall not have occurred any Material Adverse Effect with
respect to JADE;
(i) ESOP Shares. Twenty-Five (25)trading days shall
have elapsed since PSB has purchased sufficient shares of PSB
Common Stock to enable PSB to give the Notice of Completed
Purchase;
(j) Officer's Certificate. JADE shall have delivered
to PSB a certificate, dated the Closing Date and signed, without
personal liability, by its chairman of the board or president,
to the effect that the conditions set forth in subsections (a)
through (e) of this Section 5.02 have been satisfied, to the
best knowledge of the officer executing the same;
(k) Opinions of JADE's Counsel. PSB shall have
received an opinion of Stevens & Lee, P.C., counsel to JADE,
dated the Closing Date, in form and substance reasonably
satisfactory to PSB and its counsel to the effect set forth on
Exhibit "C" attached hereto;
(l) Tax Opinion. JADE shall have received an opinion
of Stevens & Lee, P.C., its counsel, in form and substance
reasonably satisfactory to counsel to PSB, substantially in the
form attached as Exhibit "D"; and
(m) Investment Banking Opinion. PSB shall have
received an oral opinion from Tucker Anthony on or before the
date of this Agreement, and shall receive a written opinion to
the effect that the Merger is fair, from a financial point of
view, to the shareholders of PSB;
ARTICLE VI
TERMINATION, WAIVER AND AMENDMENT
Section 6.01. Termination. This Agreement may be
terminated on or at any time prior to the Closing Date:
(a) By the mutual written consent of the parties
hereto; or
(b) By PSB or JADE:
(i) if, in the case of termination by JADE,
there shall have been any breach of any representation or
warranty of PSB which results in a Material Adverse Effect with
respect to PSB, on the one hand, or, in the case of termination
by PSB, there shall have been any breach of any representation
or warranty of JADE which results in a Material Adverse Effect
with respect to JADE, on the other hand, and such breach cannot
be, or shall not have been, remedied within 30 days after
receipt by such other party of notice in writing specifying the
nature of such breach and requesting that it be remedied;
(ii) if, in the case of termination by JADE,
there shall have been any breach of any material covenant or
other obligation of PSB, on the one hand, or, in the case of
termination by PSB, there shall have been any breach of any
material covenant or other obligation of JADE, on the other
hand, and such breach cannot be, or shall not have been,
remedied within 30 days after receipt by such other party of
notice in writing specifying the nature of such breach and
requesting that it be remedied;
(iii) if the Closing Date shall not have
occurred on or before June 30, 2001, unless the failure of such
occurrence shall be due to the failure of the party seeking to
terminate this Agreement to perform or observe its agreements
set forth in this Agreement required to be performed or observed
by such party on or before the Closing Date; or
(c) if either party has been informed in writing by a
Regulatory Authority whose approval or consent has been
requested that such approval or consent is unlikely to be
granted, unless the failure of such occurrence shall be due to
the failure of the party seeking to terminate this Agreement to
perform or observe its agreements set forth herein required to
be performed or observed by such party on or before the Closing
Date.
Section 6.02. Effect of Termination. If this Agreement is
terminated pursuant to Section 6.01 hereof, this Agreement shall
forthwith become void (other than Section 4.02(d), Section 6.03
and Section 7.01 hereof, which shall remain in full force and
effect), and there shall be no further liability on the part of
PSB or JADE to the other, except for any liability arising out
of any breach of any covenant or other agreement contained in
this Agreement.
Section 6.03. Termination Fees.
(a) If, within one (1) year following the date of
termination of this Agreement, other than PSB or an Affiliate of
PSB, enters into an agreement with JADE pursuant to which such
Person or Affiliate would (i) merge or consolidate, or enter
into any similar transaction, with JADE, (ii) acquire all or
substantially all of the assets of JADE, or (iii) acquire
beneficial ownership of securities representing, or the right to
acquire beneficial ownership or to vote securities representing,
25% or more of the then outstanding shares of JADE Common Stock,
then JADE shall immediately pay to PSB a fee of $2.5 million,
which fee shall include reimbursement to PSB, for its costs and
expenses, including legal fees and expenses, incurred in
connection with this Agreement and the transactions contemplated
hereby. Nothing in this Section 6.03 shall constitute a waiver
or limitation, in whole or in part, of any legal or equitable
rights which PSB may possess against any Person or Affiliate
relating to this Agreement or the Affiliate Agreement, or
relating to PSB's relationship with JADE for any act or omission
of such Person or Affiliate, including any tortious interference
with this Agreement or the Affiliate Agreement or otherwise
wrongfully inducing or causing any breach of any such agreement.
The provisions of this Section 6.03(a) shall not apply in the
event of termination of this Agreement pursuant to
(i) Section 6.01(a), or (ii) Section 6.01(b)(i) or (ii) on
account of an unremedied material breach by PSB or JADE, or
(iii) on account of PSB being notified that the Federal Reserve
Board or Pennsylvania Department of Banking will not approve the
Merger because of the pro-forma capital ratio of PSB.
(b) The provisions of this Section 6.03 shall not
apply in the event of a merger, consolidation or similar
transaction involving JADE, in which (i) persons who were
members of the Board of Directors of JADE immediately prior to
such termination continue to constitute at least a majority of
the members of the Board of Directors of the surviving or
resulting entity following completion of such transaction and
(ii) shareholders JADE immediately prior to such transaction
continue to own at least a majority of the outstanding voting
securities of the surviving or resulting entity immediately
following completion of such transaction.
ARTICLE VII
MISCELLANEOUS
Section 7.01. Expenses. Each party hereto shall bear and
pay all costs and expenses incurred by it in connection with the
transactions contemplated hereby, including fees and expenses of
its own financial consultants, accountants and counsel.
Section 7.02. Non-Survival of Representations and
Warranties. All representations, warranties, agreements and
covenants set forth in this Agreement, shall terminate on the
Closing Date, except for covenants to be performed after the
Closing Date, which will continue until performed.
Section 7.03. Amendment, Extension and Waiver. Subject to
applicable law, at any time prior to the consummation of the
transactions contemplated by this Agreement, the parties may
(a) amend this Agreement, (b) extend the time for the
performance of any of the obligations or other acts of either
party hereto, (c) waive any inaccuracies in the representations
and warranties contained herein or in any document delivered
pursuant hereto, or (d) waive compliance with any of the
agreements or conditions contained in Articles IV and V hereof
or otherwise. This Agreement may not be amended except by an
instrument in writing authorized by the respective Boards of
Directors and signed, by duly authorized officers, on behalf of
the parties hereto. Any agreement on the part of a party hereto
to any extension or waiver shall be valid only if set forth in
an instrument in writing signed by a duly authorized officer on
behalf of such party, but such waiver or failure to insist on
strict compliance with such obligation, covenant, agreement or
condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure.
Section 7.04. Entire Agreement. This Agreement, including
the documents and other writings referred to herein or delivered
pursuant hereto, contains the entire agreement and understanding
of the parties with respect to its subject matter. This
Agreement supersedes all prior arrangements and understandings
between the parties, both written or oral with respect to its
subject matter. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective
successors; provided, however, that nothing in this Agreement,
expressed or implied, is intended to confer upon any party,
other than the parties hereto and their respective successors,
any rights, remedies, obligations or liabilities other than
pursuant to Sections 1.02(d), 1.03(b), 4.05, 4.10 and 4.11 with
respect to indemnification, employee benefits and certain other
matters.
Section 7.05. No Assignment. Neither party hereto may
assign any of its rights or obligations hereunder to any other
person, without the prior written consent of the other party
hereto.
Section 7.06. Notices. All notices or other
communications hereunder shall be in writing and shall be deemed
given if delivered personally, mailed by prepaid registered or
certified mail (return receipt requested), or sent by telecopy,
addressed as follows:
(a) If to PSB, to:
PSB Bancorp, Inc.
Eleven Penn Center
Suite 2601
1835 Market Street
Philadelphia, PA 19103
Attention: Anthony DiSandro
President
Telecopy No.: (215) 979-7979
with a copy to:
Dilworth Paxson LLP
3200 Mellon Bank Center
1735 Market Street
Philadelphia, Pennsylvania 19103
Attention: Joseph H. Jacovini, Esquire
Barbara Dubrow, Esquire
If to JADE, to:
JADE Financial Corp.
213 West Street Road
Feasterville, Pennsylvania 19053
Attention: John J. O'Connell
Chairman of the Board
Telecopy No.: (215) 322-2641
with a copy to:
Stevens & Lee, P.C.
One Glenhardie Corporate Center
Suite 202
1275 Drummers Lane
P.O. Box 236
Wayne, Pennsylvania 19087-0236
Attention: Jeffrey P. Waldron, Esquire
David R. Payne, Esquire
Telecopy No.: (610) 687-1384
Section 7.07. Captions. The captions contained in this
Agreement are for reference purposes only and are not part of
this Agreement.
Section 7.08. Counterparts. This Agreement may be
executed in any number of counterparts, and each such
counterpart shall be deemed to be an original instrument, but
all such counterparts together shall constitute but one
agreement.
Section 7.09. Severability. If any provision of this
Agreement or the application thereof to any person or
circumstance shall be invalid or unenforceable to any extent,
the remainder of this Agreement and the application of such
provisions to other persons or circumstances shall not be
affected thereby and shall be enforced to the greatest extent
permitted by law.
Section 7.10. Governing Law. This Agreement shall be
governed by and construed in accordance with the domestic
internal law (without regard to the law of conflict of laws) of
the Commonwealth of Pennsylvania.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have caused this Agreement
to be executed by their duly authorized officers as of the day
and year first above written.
PSB BANCORP, INC.
By_______________________________
Anthony DiSandro, President
JADE FINANCIAL CORP.
By _______________________________
John J. O'Connell, Chairman of
the Board
FUAD, Inc. (Newco)
By _______________________________
Gary Polimeno, President
