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FORM 8-K
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934
Date of Report (Date of earliest event reported): AUGUST 16, 1995
GREAT FALLS BANCORP
(Exact name of registrant as specified in its charter)
NEW JERSEY 0-14294 22-2545165
(State or other (Commission (IRS Employer
jurisdiction of File No.) Identification No)
incorporation)
55 UNION BOULEVARD, TOTOWA, NEW JERSEY 07512
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
201-942-1111
NONE
(Former name or former address, if changed since last report)
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Item 5. Other Events.
On August 16, 1995, the Corporation entered into an Acquisition
Agreement with Bergen Commercial Bank, of Paramus, New Jersey
("Bergen"), relating to the Corporation's acquisition of all of the
outstanding stock of Bergen solely in exchange for the
Corporation's common stock (except that cash will be paid in lieu
of fractional shares and except for payments to shareholders of
Bergen who exercise dissenters rights). Bergen would become a
wholly-owned bank subsidiary of the Corporation. The parties hope
to consummate the acquisition before December 31, 1995.
Bergen has 369,733 shares outstanding. The Corporation has
1,069,750 shares outstanding, after giving effect to a 10% stock
dividend paid on July 31, 1995 to shareholders of record on June
30, 1995. The agreed exchange ratio is 1.7 shares of common stock
of the Corporation for each share of Bergen stock. The Corporation
would also assume outstanding stock options to purchase Bergen
stock. Following the effective time of the share exchange, the
Corporation's Board of Directors shall be increased from 7 to 10
members and three Bergen directors will be elected to fill the
vacancies.
The acquisition requires approvals by (1) the holders of 2/3rds of
the outstanding stock of Bergen and (2) the holders of a majority
of votes cast by the Corporation's shareholders. The Acquisition
Agreement also specifies a number of other conditions of closing,
including approvals by the New Jersey Department of Banking and the
Board of Governors of the Federal Reserve System, an opinion of
counsel that the exchange of shares will be a tax free transaction
for federal income taxes, an opinion of the Corporation's certified
public accountants that the acquisition will qualify to be treated
as a pooling of interests for accounting purposes and an opinion of
an investment banker that the share exchange is fair to the
stockholders of Bergen.
Bergen has three banking offices in Bergen County, New Jersey. At
June 30, 1995, Bergen had approximately $71 million in total
assets, approximately $63.7 million in total deposits, and
approximately $6.7 million in shareholders' equity. Bergen
reported net income in the amount of $520,000 for the year ended
December 31, 1994, and net income in the amount of $265,000 for the
six months ended June 30, 1995.
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Item 7. Financial Statements and Exhibits.
(c) Exhibits. The following exhibit is being filed with this
Report and is attached hereto:
2.1 Acquisition Agreement dated August 16, 1995, with Exhibits (50
pages)
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
GREAT FALLS BANCORP
(Registrant)
/s/ George E. Irwin
(Signature)
GEORGE E. IRWIN
VICE PRESIDENT
Date: AUGUST 25, 1995
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EXHIBIT INDEX
Exhibit No. Title
2.1 Acquisition Agreement dated August 16, 1995, with Exhibits
(50 pages)
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EXHIBIT 2.1
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ACQUISITION AGREEMENT
By and Between
GREAT FALLS BANCORP
and
BERGEN COMMERCIAL BANK
August 16, 1995
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TABLE OF CONTENTS
ARTICLE I--THE EXCHANGE 1
1.1. Terms of Exchange 1
1.2. BCB Stock Options 1
1.3. No Fractional Interests 2
1.4. Plan of Acquisition 2
1.5. Meetings of Stockholders of BCB and GFB 3
1.6. Certification and Filing of Plan of Acquisition 3
1.7. Effective Time 3
1.8. Conflicts 3
1.9. Directors 4
1.10. BCB as Separate Subsidiary 4
1.11. Issuance and Delivery of GFB Common Stock 4
1.12. Stock Transfer Books 5
1.13. BCB Dissenting Shares 5
1.14 GFB Dissenting Shares 6
ARTICLE II--REPRESENTATIONS AND WARRANTIES OF BCB 6
2.1. Organization; Good Standing; Power; and
Qualification 6
2.2. Capitalization 6
2.3. BCB Stock Option Plan 6
2.4. Authority; No Violation. etc. 7
2.5. Governmental Approvals and Filings 7
2.6. Equity Investments 8
2.7. Financial Information 8
2.8. Regulatory Filings 8
2.9. Absence of Changes 8
2.10. Agreements, etc. 8
2.11. Absence of Undisclosed Liabilities 9
2.12. Condition of Tangible Assets 9
2.13. Litigation, etc. 9
2.14. Permits, Licenses, etc. 10
2.15. Compliance with Laws 10
2.16. Brokers' or Finders' Fees. etc. 10
2.17. Employees 10
2.18. Name 10
2.19. Environmental Matters 10
2.20. Benefit Plans; Employee Relations 11
2.21. Tax Matters 12
2.22. Insurance 13
2.23. Dealings with Officers and Directors 13
2.24. Securities Exchange Act of 1934 13
2.25. Disclosure Schedule and Other Materials Furnished by BCB 13
2.26. Survival 14
ARTICLE III--REPRESENTATIONS AND WARRANTIES OF GFB 14
3.1. Organization; Good Standing; Power; and Qualification 14
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3.2. Capitalization 14
3.3. GFB Stock Option Plans 15
3.4. Authority; No Violation. etc. 15
3.5. Governmental Approvals and Filings 16
3.6. Equity Investments 16
3.7. Financial Information 17
3.8. Regulatory Filings 17
3.9. Absence of Changes 17
3.10. Agreements. etc. 17
3.11. Absence of Undisclosed Liabilities 18
3.12. Condition of Tangible Assets 18
3.13. Litigation. etc. 18
3.14. Permits, Licenses, etc. 18
3.15. Compliance with Laws 19
3.16. Brokers' or Finders' Fees, etc. 19
3.17. Employees 19
3.18. Name 19
3.19. Environmental Matters 19
3.20. Benefit Plans; Employee Relations 20
3.21. Tax Matters 21
3.22. Insurance 22
3.23. Dealings with Officers and Directors 22
3.24. SEC Filings 22
3.25. Disclosure Schedule and Other Materials Furnished by GFB 22
3.26. Survival 23
ARTICLE IV--COVENANTS OF BCB 23
4.1. Regular Course of Business 23
4.2. Restricted Activities and Transactions 23
4.3. Dividends and Distributions; Repurchases 24
4.4. Advice of Changes 25
4.5. Acquisition Proposals 25
4.6. Affiliates 25
4.7. Consents, Approvals and Filings 25
4.8. Access to Records and Properties 26
ARTICLE V--COVENANTS OF GFB 26
5.1. Regular Course of Business 26
5.2. Restricted Activities and Transactions 26
5.3. Dividends and Distributions; Repurchases 28
5.4. Advice of Changes 28
5.5. Acquisition Proposals 29
5.6. Consents, Approvals and Filings 29
5.7. Access to Records and Properties 29
5.8. Affiliates 30
ARTICLE VI--MUTUAL COVENANTS AND AGREEMENTS 30
6.1. Confidentiality 30
6.2. Expenses 31
6.3. Public Announcements 31
6.4. Further Assurances 31
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6.5. Post-Effective Time Operations 31
6.6. GFB 401(k) Plan 31
6.7. Investment Bankers' Fees 31
ARTICLE VII--PROXY AND REGISTRATION STATEMENTS 31
7.1. Preparation 31
7.2. Representations. Warranties and Covenants of BCB 32
7.3. Representations, Warranties and Covenants of GFB 32
7.4. Mailings to Stockholders 32
7.5. Blue Sky 33
7.6. Tax Opinion 33
ARTICLE VIII--CONDITIONS TO OBLIGATIONS OF GFB 33
8.1. Representations and Warranties 33
8.2. Covenants 33
8.3. Certificates 33
8.4. Opinion of Counsel 34
8.5. Affiliates 34
8.6. Approval of Shareholders of GFB 34
8.7. Approval of Shareholders of BCB 34
8.8. No Governmental or Other Proceeding or Litigation 34
8.9. Approvals and Consents 34
8.10. Registration Statement Effective 34
8.11. Accountants' Opinion 35
8.12. Tax Opinion 35
8.13. Fairness Opinions 35
ARTICLE IX--CONDITIONS TO OBLIGATIONS OF BCB 35
9.1. Representations and Warranties 35
9.2. Covenants 35
9.3. Certificates 35
9.4. Opinion of Counsel 36
9.5. Tax Opinion 36
9.6. Approval of Shareholders of GFB and BCB 36
9.7. No Governmental or Other Proceeding or Litigation 36
9.8. Approvals and Consents 36
9.9. Registration Statement Effective 37
9.10. Fairness Opinions 37
9.11. Accountants' Opinion 37
9.12. Affiliates 37
ARTICLE X--CLOSING 37
ARTICLE XI--TERMINATION; LIQUIDATED DAMAGES 37
11.1. Termination 37
11.2. Liquidated Damages 38
ARTICLE XII--MISCELLANEOUS 38
12.1. Parties in Interest 38
12.2. Entire Agreement; Amendments 38
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12.3. Headings 38
12.4. Notices 39
12.5. Counterparts 39
12.6. Governing Law 40
12.7. Gender and Number; Person 40
12.8. Waivers 40
12.9. Assignments 40
Signatures 40
Exhibit A - Plan of Acquisition
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ACQUISITION AGREEMENT
THIS AGREEMENT, made this 16th day of August, 1995, by and between
GREAT FALLS BANCORP, a corporation duly organized and existing
under the laws of the State of New Jersey (hereinafter referred to
as "GFB"), having an address for purposes of this Agreement located
at 55 Union Boulevard, Totowa, New Jersey 07512; and BERGEN
COMMERCIAL BANK, a Banking Corporation organized and existing under
the laws of the State of New Jersey (hereinafter referred to as
"BCB"), having an address for purposes of this Agreement located at
Two Sears Drive, Paramus, New Jersey 07652;
W I T N E S S E T H
WHEREAS, GFB desires to acquire all of the outstanding shares of
capital stock of BCB by means of an exchange (the "Exchange") of
said shares for shares of the Common Stock of GFB on the terms and
conditions hereinafter set forth; and
WHEREAS, the Boards of Directors of GFB and BCB, deeming it
advisable for the mutual benefit of GFB, BCB and their respective
stockholders, that GFB acquire the outstanding shares of BCB by
means of an exchange of shares under the terms and conditions
hereinafter set forth, have each by duly adopted resolutions
approved this Acquisition Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
promises hereinafter set forth, the parties hereto agree as
follows:
ARTICLE I
THE EXCHANGE
1.1. Terms of Exchange. Upon performance in all material respects
of all covenants and obligations of the parties contained herein
and upon fulfillment in all material respects or waiver of all
conditions to the obligations of the parties contained herein, at
the Effective Time (as defined in Section 1.7 hereof) and pursuant
to N.J.S.A. 17:9A-355 through 17:9A-369, inclusive, the following
will occur: Each share of Common Stock of BCB ("BCB Stock") issued
and outstanding at the Effective Time, except for perfected
Dissenting Shares (as defined in Section 1.12 hereof and subject to
Section 1.3 hereof with respect to fractional shares) shall, at
said time and without any action on the part of any holder thereof,
be exchanged for 1.7 shares (the "Exchange Rate") of Common Stock
of GFB ("GFB Stock").
1.2. BCB Stock Options. As of the Effective Time, GFB shall assume
the rights and obligations of BCB under those stock options granted
by BCB prior to the date hereof with respect to BCB Stock
pursuant to the Bergen Commercial Bank Officers Stock Option Plan
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(the "BCBStock Option Plan") which are outstanding at the Effective Time
("Assumed Options"), to the extent such options shall not
theretofore have been exercised. Pursuant to such assumption, the
holder of each Assumed Option shall be entitled, subject to the
terms of his or her stock option and compliance with applicable
law, to purchase the number of shares (rounded to the nearest whole
number) of GFB Stock determined by multiplying the number of shares
covered by the Assumed Option by the Exchange Rate; the price per
share of GFB Stock under each Assumed Option shall be determined by
dividing the price per share of BCB Stock specified in the Assumed
Option by the Exchange Rate, so that the aggregate price for all
shares covered by the Assumed Option shall remain unchanged. Each
Assumed Option shall constitute a continuation of the corresponding
stock option issued under the BCB Stock Option Plan substituting
GFB for BCB and GFB Stock for BCB Stock in accordance with the
foregoing conversion formula, substituting the price per share
determined in accordance with the foregoing formula, and
substituting, for purposes of continuing eligibility under the BCB
Stock Option Plan, a relationship with GFB or any of its
subsidiaries for a relationship with BCB, effective as of the
Effective Time. Except as provided in this Section 1.2, all of the
terms and provisions of each Assumed Option shall remain the same,
including, but not limited to, the times when the Assumed Option
may be exercised. As soon as practicable after the Effective Time,
GFB will send written notice of the assumption of the Assumed
Options to each holder thereof. As of the Effective Time, GFB will
have taken all corporate and other action necessary to reserve
sufficient shares of GFB Stock for issuance upon exercise of the
Assumed Options. GFB will prepare and file with the Securities and
Exchange Commission (the "SEC") a registration statement on the
appropriate form relating to issuance upon exercise by the holder
thereof of the shares of GFB Stock underlying such Assumed Options
and will use its best efforts to have such registration statement
declared effective as soon as practicable after the Effective Time,
but in no case later than 6 months after the Effective Date.
1.3. No Fractional Interests. Neither certificates nor scrip for
fractional interests in shares of GFB Stock will be issued in
connection with the Exchange, but in lieu thereof each holder of
BCB Stock who would otherwise have been entitled to a fraction of a
share of GFB Stock will be paid an amount of cash equal to such
fraction multiplied by the average of the final bid prices for
shares of GFB Stock on each of the ten (10) business days preceding
the Effective Time. All shares of BCB Stock held by each record
holder shall be aggregated before determining the need to pay cash
in lieu of fractional shares.
1.4. Plan of Acquisition. A Plan of Acquisition prepared in
accordance with N.J.S.A. 17:9A-357, in the form of Exhibit A
hereto, describing the Exchange and related actions contemplated by
this Article I, shall be executed by the parties hereto and
submitted to the Commissioner of Banking of the State of New
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Jersey (the "Commissioner") in accordance with N.J.S.A. 17:9A-
358.
1.5. Meetings of Stockholders of BCB and GFB.
(a) The Board of Directors of BCB shall duly call, and cause to be
held, a special meeting of the stockholders of BCB and shall direct
that the Plan of Acquisition and this Acquisition Agreement be
submitted to said stockholders for the purpose of adopting and
approving the same, subject to prior approval of the Plan of
Acquisition by the Commissioner and all other required regulatory
approvals. The Board of Directors of BCB shall, consistent with
their fiduciary duties, recommend that the stockholders of BCB vote
to adopt and approve the Plan of Acquisition and this Acquisition
Agreement. GFB and BCB shall cooperate in soliciting proxies from
stockholders of BCB in favor of approval of the Plan of Acquisition
and this Acquisition Agreement.
(b) The Board of Directors of GFB shall duly call, and cause to be
held, a special meeting of the stockholders of GFB and shall direct
that the Plan of Acquisition and this Acquisition Agreement be
submitted to said stockholders for the purpose of adopting and
approving the same, subject to approval of the Plan of Acquisition
by the Commissioner and all other required regulatory approvals.
The Board of Directors of GFB shall, consistent with their
fiduciary duties, recommend that the stockholders of GFB vote to
adopt and approve the Plan of Acquisition and this Acquisition
Agreement. BCB and GFB shall cooperate in soliciting proxies from
stockholders of GFB in favor of approval of the Plan of Acquisition
and this Acquisition Agreement.
1.6. Certification and Filing of Plan of Acquisition. In the
event that the Plan of Acquisition and this Acquisition Agreement
are approved by 2/3 of the capital stock of BCB entitled to vote,
as required under N.J.S.A. 17:9A-359, such approval shall be
promptly certified by the president or a vice president of BCB and
the certifications shall be attached to the Plan of Acquisition.
Thereafter, upon satisfaction or waiver of all conditions specified
in Article VIII and Article IX hereof, the Plan of Acquisition
shall be filed in the Department of Banking of the State of New
Jersey, all as provided in N.J.S.A. 17:9A-359.
1.7. Effective Time. The date and time at which the Exchange
shall become effective (the "Effective Time") shall be 11:59 p.m.
on the last day of the calendar month during which the Plan of
Acquisition is filed with the Department of Banking of the State of
New Jersey in accordance with N.J.S.A. 17:9A-359 following the
Closing contemplated by Article X hereof.
1.8. Conflicts. The provisions of this Article I, and all other
terms and conditions set forth in this Acquisition Agreement,
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are intended to be consistent with the Plan of Acquisition. In the
event that there is any inconsistency between the provisions of
this Acquisition Agreement and the provisions of the Plan of
Acquisition, the latter shall govern.
1.9. Directors. Within ten (10) days following the Effective
Time, the Board of Directors of GFB shall amend the By-Laws of GFB
in order to increase the number of directors of GFB from 7 to 10
and, consistent with their fiduciary duties, shall elect Anthony M.
Bruno, Jr., C. Mark Campbell and Charles J. Volpe to fill the three
new directorships. In the event that one or more of Anthony M.
Bruno, Jr., C. Mark Campbell and Charles J. Volpe is unable to take
office, the Board of Directors of BCB shall designate a substitute,
acceptable to GFB, to be elected in his place by the Board of
Directors of GFB, consistent with their fiduciary duties.
1.10. BCB as Separate Subsidiary. Upon the Effective Time, BCB,
pursuant to N.J.S.A. 17:9A-356 et. seq. shall become a wholly owned
subsidiary of GFB. The Board of Directors of BCB immediately prior
to the Effective Time shall continue to be the Board of Directors
of BCB immediately after the Effective Time, the executive officers
of BCB immediately prior to the Effective Time shall continue to be
the executive officers of BCB immediately after the Effective Time,
and the Certificate of Incorporation and Bylaws of BCB as in
existence immediately prior to the Effective Time shall continue to
be the Certificate of Incorporation and Bylaws of BCB immediately
after the Effective Time. It is the present intention of GFB to
maintain the separate corporate existence of BCB following the
Effective Time. Provided, however, that nothing herein shall be
construed to limit the right of GFB to remove and/or replace any or
all of the directors and executive officers of BCB following the
Effective Time, to amend the Certificate of Incorporation and
Bylaws of BCB following the Effective Time, to terminate the
separate corporate existence of BCB following the Effective Time,
or otherwise to limit the rights and prerogatives of GFB as
stockholder of BCB following the Effective Time.
1.11. Issuance and Delivery of GFB Common Stock.
(a) As soon as practicable after the Effective Time, GFB will send
written notice to each record holder of certificates representing
shares of BCB Stock immediately prior to the Effective Time ("Old
Certificates"), which notice shall state the number of shares of
GFB Stock for which such holder's shares of BCB Stock have been
exchanged.
(b) Thereafter, upon surrender for cancellation to GFB of one or
more Old Certificates (or, in default thereof, an appropriate
affidavit of loss and indemnity agreement and/or bond as may be
reasonably required in each case by GFB), GFB shall cause to be
issued and delivered to the holder of each surrendered Old
Certificate a New Certificate representing the appropriate number
of shares of GFB Stock, together with checks for payment of cash in lieu
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of fractional interests to be issued in respect of the Old
Certificates.
(c) Until an outstanding Old Certificate has been surrendered and
exchanged as herein provided for a New Certificate (or until such
time as the record holder of an outstanding Old Certificate shall
have delivered an appropriate affidavit of loss and indemnity
agreement and/or bond as may be reasonably required by GFB), such
outstanding Old Certificate shall be deemed for all corporate
purposes of GFB, other than the payment of dividends or other
distributions, to evidence ownership of the number of shares of GFB
Stock which were exchanged for the shares of BCB Stock formerly
evidenced by the Old Certificate. No dividends (whether payable in
cash, stock or otherwise) or other distributions which are declared
on GFB Stock will be paid to any person otherwise entitled to
receive the same until such person's Old Certificates have been
surrendered in exchange for New Certificates in the manner herein
provided, but upon such surrender, such dividends and other
distributions, if any, payable from and after the Effective Time
will be paid to such person. In no event shall any person entitled
to receive such dividends or other distributions be entitled to
receive interest thereon.
1.12. Stock Transfer Books. At the Effective Time, the stock
transfer books of BCB shall be closed and no transfer of BCB Stock
shall thereafter be made.
1.13. BCB Dissenting Shares.
(a) Each outstanding share of BCB Stock, the holder of which has,
prior to the taking of the vote at the meeting of stockholders of
BCB contemplated by Section 1.5 hereof, filed with BCB a written
notice pursuant to N.J.S.A. 17:9A-360 that he is dissenting and
stating that he intends to demand payment for his shares if the
Plan of Acquisition becomes effective, is herein called a "BCB
Dissenting Share". BCB Dissenting Shares, the holders of which
have made written demand on BCB for the payment of the fair value
of such shares within 20 days after the mailing of notice to them
by BCB that the Plan of Acquisition has been approved and
thereafter have submitted their stock certificate or certificates
to BCB within 20 days after demanding payment of the fair value of
such shares, all as provided in N.J.S.A. 17:9A-360, are herein
called "Perfected BCB Dissenting Shares." Perfected BCB Dissenting
Shares shall not be converted into GFB Stock pursuant to Section
1.1 hereof, but the holders thereof shall be entitled only to such
rights as are granted by N.J.S.A. 17:9A-360 through 17:9A-369,
inclusive.
(b) BCB will give GFB (i) prompt notice of any written objections,
notices, withdrawals of objections or notices and any other
instruments served pursuant to N.J.S.A. 17:9A-360 through 17:9A-
369, inclusive, and received by BCB, and (ii) the opportunity to
direct all negotiations with and proceedings with respect to
holders of BCB Dissenting Shares. BCB will not, except with the
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prior written consent of GFB, (i) voluntarily make any payment with
respect to any demands for payment for shares under N.J.S.A. 17:9A-
360 or (ii) settle or offer to settle any such demands.
1.14 GFB Dissenting Shares. The shareholders of GFB shall have
such rights to dissent from the Exchange as are provided in Chapter
11 of the New Jersey Business Corporation Act.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF BCB
BCB hereby represents and warrants to GFB as follows:
2.1. Organization; Good Standing; Power; and Qualification. BCB
is a commercial bank duly organized, validly existing and in good
standing under the laws of the State of New Jersey, has all
requisite corporate power and authority to own, lease and operate
its properties, and to conduct its business as it is now being
conducted. Item 2.1(a) of the BCB Disclosure Schedule contains a
list of all of BCB's direct and indirect subsidiaries (the "BCB
Subsidiaries"). Each BCB Subsidiary is duly organized, validly
existing and in good standing under the laws of the State of New
Jersey, has all requisite corporate power and authority to own,
lease and operate its properties, and to conduct its business as it
is now being conducted. BCB has heretofore delivered to GFB true
and complete copies of the Certificates of Incorporation and By-
Laws, as amended to the date hereof, of BCB and each BCB
Subsidiary. Each of BCB and the BCB Subsidiaries is duly qualified
or licensed to do business and is in good standing as a foreign
corporation in each state or other jurisdiction in which the nature
of its business or operations requires such qualification or
licensing. Item 2.1(b) of the BCB Disclosure Schedule contains a
list of all foreign jurisdictions in which BCB and each BCB
Subsidiary is qualified or licensed to do business.
2.2. Capitalization. The authorized capital stock of BCB consists
of 2,000,000 shares of Common Stock, of which 369,733 shares are
issued and outstanding and no shares are held by BCB as treasury
stock. BCB has no outstanding convertible securities, warrants,
options, rights, calls or other commitments of any nature to issue
or sell its capital stock, other than stock options granted under
the BCB Stock Option Plan. All of the issued and outstanding
capital stock of each BCB Subsidiary is owned, directly or
indirectly, by BCB.
2.3. BCB Stock Option Plan. Stock options outstanding under the
BCB Stock Option Plan entitle the holders thereof (subject to
applicable vesting provisions) to purchase an aggregate of 1,464
shares of BCB Stock at a weighted average price of $18.23 per
share. Item 2.3 of the BCB Disclosure Schedule contains a true and
complete list of each holder of stock options granted under the BCB
Stock Option Plan, the number of shares under options to each such holder,
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the exercise price of each such option and the dates on
which each such option granted to such holder becomes exercisable
and the date on which each such option terminates. BCB has
heretofore delivered to GFB a true and complete copy of the BCB
Stock Option Plan, as amended to the date hereof, together with a
specimen stock option.
2.4. Authority; No Violation. etc. Subject to the approval of
this Acquisition Agreement and the Plan of Acquisition by the
shareholders of BCB, and subject to the parties obtaining all
necessary regulatory approvals, BCB has all requisite corporate
power to execute, deliver and perform its obligations under this
Agreement. The execution and delivery of this Agreement and
performance by BCB of its obligations hereunder have been duly
approved and authorized by all requisite corporate action of BCB,
subject to the shareholder approval contemplated by Section 1.5(a)
hereof and the parties obtaining all necessary regulatory
approvals. This Agreement has been duly executed and delivered by
BCB and, subject as aforesaid, constitutes the legal, valid and
binding agreement of BCB. Except for matters disclosed in Item 2.4
of the BCB Disclosure Schedule, neither the execution and delivery
of this Agreement by BCB nor compliance by BCB with any of the
provisions hereof will (a) conflict with or result in a breach of
any provision of BCB's Certificate of Incorporation, (b) violate,
or result with the passage of time in a violation of, or cause a
default or acceleration under, or give rise to any right to
termination, cancellation or acceleration (whether immediately, or
after the giving of notice, or after the passage of time, or a
combination thereof) under, or result in the creation of any lien,
charge or encumbrance on any assets of BCB or any BCB Subsidiary
pursuant to, any of the terms, conditions or provisions of any
agreement, instrument or obligation to which BCB or any BCB
Subsidiary is a party, or by which it or any of its properties or
assets may be bound, and which would have or might reasonably be
expected to have a material adverse effect on the financial
conditions or results of operations of BCB and the BCB
Subsidiaries, taken as a whole, or (c) violate any Federal or state
statute, rule or regulation or judgment, order, writ, injunction or
decree of any Federal or state court, administrative agency or
governmental body, in each case applicable to BCB or any BCB
Subsidiary, or any of their properties or assets, and which
violation would have, or might reasonably be expected to have, a
material adverse effect on the financial condition or results of
operations of BCB and the BCB Subsidiaries, taken as a whole, or
otherwise require any filing with, or obtaining any permit,
authorization, consent or approval of, any Federal, State or local
public body, commission or authority, including without limitation
the New Jersey Industrial Site Recovery Act (N.J.S.A. 13:1K-6 et.
seq.), except those approvals and authorizations specified in
Section 2.5 hereof.
2.5. Governmental Approvals and Filings. No approval,
authorization, consent, license, clearance or order of, declaration
or notification to, or filing, registration or compliance with, any
governmental or regulatory authority is required in order to (a)
authorize the Exchange or (b) prevent the termination of any material
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right, privilege, license or agreement of BCB or any BCB
Subsidiary, or to prevent any material loss to BCB or any BCB
Subsidiary or their businesses, taken as a whole, by reason of said
Exchange, except (i) compliance with N.J.S.A. 17:9A-355 through
17:9A-369, inclusive, including approval by the Commissioner and
filing of the Plan of Acquisition, certified as having been
approved by the stockholders of BCB, (ii) compliance with the
Federal Bank Holding Company Act, including approval by the Federal
Reserve Bank of New York, and the expiration of any required
waiting period, and (iii) the requirements of the Securities Act of
1933, the Securities Exchange Act of 1934 and any applicable state
securities laws.
2.6. Equity Investments. Except as set forth in Item 2.6 of the
BCB Disclosure Schedule, BCB does not own, directly or indirectly,
any voting shares of any company.
2.7. Financial Information. BCB has delivered to GFB the audited
consolidated statements of condition of BCB and its consolidated
subsidiaries as of December 31, 1994 and December 31, 1993, the
related audited consolidated statements of income and cash flows
for each of the three years ended December 31, 1994 (including the
notes thereto), the consolidated unaudited statement of condition
of BCB and its consolidated subsidiaries as at June 30, 1995, and
the related unaudited consolidated statements of income and cash
flows for the six months then ended. All of such financial
statements, with the related notes thereto (i) are in accordance
with the books of BCB, (ii) have been prepared in accordance with
generally accepted accounting principles consistently applied
throughout the periods involved, except if and as otherwise
indicated therein and (iii) fairly present the financial position
of BCB at such dates and the results of its operations and the cash
flows for the respective periods indicated therein, except, in the
case of the unaudited statements, for normal year-end adjustments.
The copies of the corporate income tax returns of BCB for the 12
month periods ended December 31, 1994 and December 31, 1993 which
have been delivered to GFB are each true, correct and complete.
2.8. Regulatory Filings. BCB has delivered to GFB true and
complete copies of all reports filed by BCB with the New Jersey
Department of Banking and the Federal Deposit Insurance Corporation
during the past 36 months.
2.9. Absence of Changes. Except for matters described in Item 2.9
of the BCB Disclosure Schedule, since June 30, 1995, there has been
no material adverse change in the assets, properties, business or
condition, financial or otherwise, of BCB and the BCB Subsidiaries,
taken as a whole.
2.10. Agreements, etc. Item 2.10(a) of the BCB Disclosure
Schedule contains a true and complete list of every agreement, to
which BCB or a BCB Subsidiary is a party or by which BCB or a BCB
Subsidiary is bound, which is performable in the future and which,
together with all other contracts of the same or similar nature,
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provides for the future obligation to pay or receive more than
$25,000.00 or is otherwise material to the business of BCB and the
BCB Subsidiaries, taken as a whole, including but not limited to
(a) the leases of BCB's headquarters and branches, (b) any
agreements for the sale of any assets of BCB other than in the
ordinary course of business and (c) any agreements pursuant to
which BCB or a BCB Subsidiary has borrowed money or may in the
future borrow money; provided, however, that such Item need not
list outstanding loans to unaffiliated persons made by BCB or loan
commitments and credit facilities pursuant to which BCB may be
obligated to lend money to unaffiliated persons. Except for
matters listed in Item 2.10(b) of the BCB Disclosure Schedule, BCB
and the BCB Subsidiaries have performed all obligations to be
performed by it to date under all contracts and other agreements
listed in Item 2.10(a) of the BCB Disclosure Schedule and is not in
default thereunder; and, to the best knowledge of BCB, there exists
no default, or any event which upon the giving of notice or the
passage of time would give rise to any default, in the performance
of any obligation to be performed by any other party to any such
contract or other agreement.
2.11. Absence of Undisclosed Liabilities. BCB and the BCB
Subsidiaries do not have any material liabilities (whether matured
or unmatured, accrued, absolute or contingent or otherwise) which
were not reflected, reserved against, accrued for or otherwise
disclosed on BCB's balance sheet dated as at June 30, 1995, except
for obligations to perform the contracts and the agreements listed
on Item 2.10(a) of the BCB Disclosure Schedule in accordance with
their respective terms.
2.12. Condition of Tangible Assets. Those assets of BCB and the
BCB Subsidiaries that are tangible property are in generally good
operating condition and repair.
2.13. Litigation, etc. Except for matters listed on Item 2.13 of
the BCB Disclosure Schedule: (a) there are no actions, suits,
claims, investigations or proceedings (legal, administrative or
arbitrative) pending or, to the best knowledge of BCB threatened,
against BCB or any of the BCB Subsidiaries, whether at law or in
equity, whether civil or criminal in nature or whether before or by
any Federal, state, municipal or other governmental court,
department, commission, board, bureau, agency or instrumentality,
domestic or foreign, which, if determined adversely to BCB or any
of the BCB Subsidiaries, would have, or could reasonably be
expected to have, a material adverse effect on the financial
condition or results of operations of BCB and the BCB Subsidiaries,
taken as a whole; and (b) there are no existing unsatisfied
judgments, decrees, injunctions or orders of any court,
governmental department, commission, agency, instrumentality or
arbitrator outstanding against BCB or any of the BCB Subsidiaries
which could have, or could reasonably be expected to have, a
material adverse effect on the financial condition or results of
operations of BCB and the BCB Subsidiaries, taken as a whole. No
petition for bankruptcy, voluntary or involuntarily, has been filed
by or against BCB or any of the BCB Subsidiaries, neither BCB nor any
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of the BCB Subsidiaries has made any assignment for the benefit
of its creditors and no receiver has been appointed for BCB or any
BCB Subsidiary or any of their assets.
2.14. Permits, Licenses, etc. Item 2.14 of the BCB Disclosure
Schedule contains a list of all licenses, permits, orders and
approvals issued by any department, commission, agency or other
instrumentality of any federal, state, county or local government
which pertains to the business conducted by BCB and the BCB
Subsidiaries, the absence, revocation or non-renewal of which would
have, or could reasonably be expected to have, a material adverse
effect on the financial condition or results of operations of BCB
and the BCB Subsidiaries, taken as a whole.
2.15. Compliance with Laws. Neither BCB nor any of the BCB
Subsidiaries is in violation, in any respect material to the
business or assets of BCB and the BCB Subsidiaries, taken as a
whole, of any federal, state, county or local law, ordinance,
regulation or order applicable to the business conducted by it.
BCB and each of the BCB Subsidiaries has all licenses, permits,
orders and approvals of any governmental or regulatory body which
are required for the conduct of the business conducted by it and
which, if not held by it, could reasonably be expected to have a
material adverse effect upon the business or assets of BCB and the
BCB Subsidiaries, taken as a whole (collectively, "Required
Permits"). All such Required Permits are in full force and effect,
no violations are or have been reported in respect of any Required
Permit and no proceeding is pending, or to the knowledge of BCB
threatened, to revoke or limit any such Required Permit.
2.16. Brokers' or Finders' Fees. etc. No agent, broker,
investment banker, person or firm acting on behalf of BCB or under
the authority of BCB is or will be entitled to any broker's or
finder's fee or any other commission or similar fee directly or
indirectly from GFB in connection with any of the transactions
contemplated hereby, except for fees payable to Capital Consultants
of Princeton, Inc. in connection with their rendering of the
fairness opinions contemplated by Sections 8.13 and 9.10 hereof,
which fees shall, in accordance with Section 6.7 hereof, be the
sole responsibility of BCB.
2.17. Employees. BCB has heretofore delivered to GFB a true and
complete list of the names, positions and rates of compensation of
all employees of BCB and the BCB Subsidiaries.
2.18. Name. During the last 3 years BCB has used no business name
other than the name Bergen Commercial Bank and the names of the BCB
Subsidiaries.
2.19. Environmental Matters. BCB and the BCB Subsidiaries have
never engaged in any use or operation involving the storage,
manufacture, generation or transportation of hazardous substances,
and there are no hazardous substances located on any properties owned
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or operated by BCB or the BCB Subsidiaries, including but not
limited to the premises in which the business of BCB is conducted.
Each of BCB and the BCB Subsidiaries is in compliance with all
environmental laws, rules and regulations applicable to it or its
properties. Neither BCB nor any of the BCB Subsidiaries has
received notice of any violation of any such law, rule or
regulation or of any enforcement action by any governmental agency
or authority pertaining to BCB or any of the BCB Subsidiaries or
any property now or heretofore owned or operated by any of them.
Neither BCB nor any of the BCB Subsidiaries has received notice of,
and is not otherwise aware of, any spills, releases or discharges
of hazardous substances on or from any property now or heretofore
owned or operated by BCB or any of the BCB Subsidiaries. For
purposes of this Agreement, the term "hazardous substances"
includes all substances defined as such under either the
Comprehensive Environmental Response Compensation and Liability Act
(42 U.S.C.A. 9601 et. seq.) or the New Jersey Industrial Site
Recovery Act (N.J.S.A. 13:1K et. seq.).
2.20. Benefit Plans; Employee Relations.
(a) Except as set forth in Item 2.20(a) of the BCB Disclosure
Schedule, (i) each of BCB and the BCB Subsidiaries is in material
compliance with all applicable Federal, state, local and foreign
laws and regulations respecting employment and employment
practices, and terms and conditions of employment and wages and
hours, (ii) no collective bargaining agreement presently covers
(nor has any, in the past, covered) any employees of BCB or any of
the BCB Subsidiaries, nor is any currently being negotiated by BCB
or any of the BCB Subsidiaries, nor is BCB or any of the BCB
Subsidiaries a party to any other written contract with or material
enforceable oral commitment to any labor union, (iii) there is no
unfair labor practice complaint against BCB or any of the BCB
Subsidiaries pending before the National Labor Relations Board or
any comparable state, local or foreign agency, and (iv) there is no
labor strike, dispute, slowdown, stoppage or organizational effort
actually pending or, to the best knowledge of BCB, threatened
against or involving BCB or any of the BCB Subsidiaries.
(b) Item 2.20(b) of the BCB Disclosure Schedule contains a true and
complete list of all written contracts with, or oral commitments
for the employment, retention or payment of any severance or other
benefit to, any employee, consultant or other person.
(c) Item 2.20(c) of the BCB Disclosure Schedule contains a true and
complete list of all Employee Pension Benefit Plans (as defined in
Section 3(2) of the Employee Retirement Income Security Act of 1974
("ERISA")), all Employee Welfare Benefit Plans (as defined in
Section 3(l) of ERISA), all incentive compensation plans (including
the BCB Stock Option Plan) and all other employee benefit programs
maintained by BCB and the BCB Subsidiaries in respect of their
employees (other than normal policies concerning vacations,
holidays and salary continuation during short absences for illness
or other reasons) (all of the foregoing appearing on such list being herein
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sometimes collectively referred to as "Employee
Benefit Programs"). BCB has heretofore delivered to GFB true and
complete copies of all plan texts and other agreements adopted in
connection with the Employee Benefit Programs (including separation
policies). With respect to such plans, Item 2.20(c) of the BCB
Disclosure Schedule contains a true and complete list of (and BCB
has heretofore delivered to GFB true and complete copies of):
(i) the most recent Internal Revenue Service ("IRS") determination
letter relating to each of the Employee Pension Benefit Plans
listed in such Item 2.20(c) (the "BCB Retirement Plans");
(ii) the most recent Annual Report (Form 5500 Series) and
accompanying schedules of each of the Employee Welfare Benefit
Plans listed in such Item (the "BCB Welfare Plans") and each of
BCB's Retirement Plans, as filed pursuant to applicable law;
(iii) the Summary Plan Description (as currently in effect)
distributed to employees for all of BCB's Retirement Plans and
Welfare Plans; and
(iv) the most recent actuarial report received with respect to each
of BCB's Retirement Plans that is a defined benefit plan.
(d) Except as disclosed in Item 2.20(d) of the BCB Disclosure
Schedule, (i) BCB's Retirement Plans are in substantial compliance
with ERISA and will constitute qualified plans under the Internal
Revenue Code of 1986 immediately prior to the Effective Time, (ii)
no material violation of ERISA has occurred in connection with the
administration of any of BCB's Retirement Plans or any of BCB's
Welfare Plans, (iii) there are no actions, suits or claims pending
or, to the BCB's best knowledge, threatened against any of BCB's
Retirement Plans or Welfare Plans, or any administrator of
fiduciary thereof, (iv) with respect to each of BCB's Retirement
Plans and Welfare Plans as to which an Annual Report is required to
be filed, no liabilities as of the date of the most recent Annual
Report relating to such Plan exist unless specifically referred to
in such Annual Report, and no materially adverse change has
occurred with respect to the financial materials covered by such
Annual Report since the date thereof, (v) no accumulated funding
deficiency (within the meaning of Section 412 of the Internal
Revenue Code of 1986) exists with respect to any of BCB's
Retirement Plans and (vi) no "reportable event" (as defined in
Section 4043 of ERISA) has occurred with respect to any of BCB's
Retirement Plans that are subject to Title IV of ERISA. All of
BCB's Welfare Plans are either self-funded, or are funded through a
contract with an insurance company.
2.21. Tax Matters. Each of BCB and the BCB Subsidiaries has filed
all Federal, state, local and foreign income and other tax returns,
required to be filed by it, and each such return is complete and
accurate in all material respects. Each of BCB and
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the BCB Subsidiaries has paid all taxes of any nature whatsoever, with any
related penalties, interest and liabilities (any of the foregoing
being referred to herein as a "Tax") that are shown on such tax
returns as due and payable on or before the date hereof, other than
such Taxes as are being contested in good faith and which are
listed in Item 2.21 of the BCB Disclosure Schedule. The provisions
for current and deferred Taxes reflected on the consolidated
statement of condition of BCB and its consolidated subsidiaries as
at June 30, 1995 are sufficient in all material respects. Except
as set forth in Item 2.21 of the BCB Disclosure Schedule, there are
no claims or assessments pending against BCB or any of the BCB
Subsidiaries for any alleged deficiency in Tax, and BCB does not
know of any threatened Tax claims or assessments against it or any
of the BCB Subsidiaries, which, in either case, involve amounts
either singly or in the aggregate in excess of $25,000.00.
2.22. Insurance. Item 2.22 of the BCB Disclosure Schedule contains
a true and complete list of all policies of liability, theft,
fidelity, property damage and other forms of insurance held by BCB
and the BCB Subsidiaries (specifying the insurer, amount of
coverage, annual premium, type of insurance, policy number and any
pending material claims thereunder). The policies listed in such
Item 2.22 are outstanding and duly in force and all premiums with
respect to such policies are currently paid. Except as set forth
in such Item 2.22, neither BCB nor any of the BCB Subsidiaries has,
during the past three fiscal years, been denied or had revoked or
rescinded any policy of insurance.
2.23. Dealings with Officers and Directors. Except as set forth
in Item 2.23 of the BCB Disclosure Schedule, there is no present
transaction, business relationship or indebtedness involving BCB or
any of the BCB Subsidiaries which is of a type described in Item
404 of Regulation S-K (promulgated by the Securities and Exchange
Commission) or which is a "covered transaction" as that term is
defined in Section 23A of the Federal Reserve Act (12 U.S. Code
371c), as amended, nor is BCB or any of the BCB Subsidiaries a
party to any agreement or understanding which provides for or
contemplates such a transaction, business relationship or
indebtedness in the future. Except for the Employee Benefit
Programs referred to in Section 2.20, neither BCB nor any of the
BCB Subsidiaries is a party to any agreement involving payments to
any person or entity based on the profits or gross revenues of BCB
or any of the BCB Subsidiaries.
2.24. Securities Exchange Act of 1934. No securities issued by
BCB, including but not limited to BCB Stock, are registered under
the Securities Exchange Act of 1934, and no such securities are
required to be registered under said Act.
2.25. Disclosure Schedule and Other Materials Furnished by BCB.
The disclosure schedule delivered simultaneously with this
Agreement by BCB to GFB and identified and initialed as such by an
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officer of BCB (the "BCB Disclosure Schedule"), together with any
materials furnished to GFB by BCB and referred to in this Article
II, are true and complete in all material respects and do not
contain any untrue statement of a material fact or omit to state
any material fact which is necessary to make the statements
contained therein not misleading. Any disclosure made in any Item
of the BCB Disclosure Schedule shall be deemed made for purposes of
all other applicable Items in the BCB Disclosure Schedule.
2.26. Survival. The representations and warranties of BCB
contained in this Article II shall not survive the Closing.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF GFB
GFB hereby represents and warrants to BCB as follows:
3.1. Organization; Good Standing; Power; and Qualification. GFB is
a corporation duly organized, validly existing and in good standing
under the laws of the State of New Jersey, has all requisite
corporate power and authority to own, lease and operate its
properties, and to conduct its business as it is now being
conducted. Item 3.1(a) of the GFB Disclosure Schedule contains a
list of all of GFB's direct and indirect subsidiaries (the "GFB
Subsidiaries"). Each GFB Subsidiary is duly organized, validly
existing and in good standing under the laws of the State of New
Jersey, has all requisite corporate power and authority to own,
lease and operate its properties, and to conduct its business as it
is now being conducted. GFB has heretofore delivered to BCB true
and complete copies of the Certificates of Incorporation and By-
Laws, as amended to the date hereof, of GFB and each GFB
Subsidiary. Each of GFB and the GFB Subsidiaries is duly qualified
or licensed to do business and is in good standing as a foreign
corporation in each state or other jurisdiction in which the nature
of its business or operations requires such qualification or
licensing. Item 3.1(b) of the GFB Disclosure Schedule contains a
list of all foreign jurisdictions in which GFB and each GFB
Subsidiary is qualified or licensed to do business.
3.2. Capitalization. The authorized capital stock of GFB consists
of 1,000,000 shares of Preferred Stock, without par value, of which
no shares are issued and outstanding and no shares are held by GFB
as treasury stock, and 4,000,000 shares of Common Stock, of which
1,069,750 shares were issued and outstanding as of August 9, 1995
and 0 shares are held by GFB as treasury stock. GFB has no
outstanding convertible securities, warrants, options, rights,
calls or other commitments of any nature to issue or sell its
capital stock, other than stock options granted under GFB's 1985
Incentive Stock Option Plan, GFB's 1988 Nonstatutory Stock Option
Plan, GFB's 1993 Stock Option Plan and GFB's 1995 Stock Option Plan
(collectively, the "GFB Stock Option Plans") and Cancellable
Mandatory Stock Purchase Contracts issued in December, 1993. All
of the issued and outstanding capital stock of each GFB
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Subsidiary is owned, directly or indirectly, by GFB.
3.3. GFB Stock Option Plans. Stock options outstanding under
GFB's 1985 Incentive Stock Option Plan entitle the holders thereof
(subject to applicable vesting provisions) to purchase an aggregate
of 0 shares of GFB Stock. Stock options outstanding under GFB's
1988 Nonstatutory Stock Option Plan entitle the holders thereof
(subject to applicable vesting provisions) to purchase an aggregate
of 56,988 shares of GFB Stock at a weighted average price of $9.23
per share. Item 3.3(a) of the GFB Disclosure Schedule contains a
true and complete list of each holder of stock options granted
under GFB's 1988 Nonstatutory Stock Option Plan, the number of
shares under options to each such holder, the exercise price of
each such option and the dates on which each such option granted to
such holder becomes exercisable and the date on which each such
option terminates. Stock options outstanding under GFB's 1993
Stock Option Plan entitle the holders thereof (subject to
applicable vesting provisions) to purchase an aggregate of 10,648
shares of GFB Stock at a weighted average price of $7.51 per share.
Item 3.3(b) of the GFB Disclosure Schedule contains a true and
complete list of each holder of stock options granted under GFB's
1993 Stock Option Plan, the number of shares under options to each
such holder, the exercise price of each such option and the dates
on which each such option granted to such holder becomes
exercisable and the date on which each such option terminates.
Stock options outstanding under GFB's 1995 Stock Option Plan
entitle the holders thereof (subject to applicable vesting
provisions) to purchase an aggregate of 29,700 shares of GFB Stock
at a weighted average price of $11.36 per share. Item 3.3(c) of
the GFB Disclosure Schedule contains a true and complete list of
each holder of stock options granted under GFB's 1995 Stock Option
Plan, the number of shares under options to each such holder, the
exercise price of each such option and the dates on which each such
option granted to such holder becomes exercisable and the date on
which each such option terminates. GFB has heretofore delivered to
BCB a true and complete copy of each of the GFB Stock Option Plans,
as amended to the date hereof, together with a specimen of the
stock options issued under each of said plans.
3.4. Authority; No Violation. etc. Subject to the approval of
this Acquisition Agreement and the Plan of Acquisition by the
shareholders of GFB, and subject to the parties obtaining all
necessary regulatory approvals, GFB has all requisite corporate
power to execute, deliver and perform its obligations under this
Agreement. The execution and delivery of this Agreement and
performance by GFB of its obligations hereunder have been duly
approved and authorized by all requisite corporate action of GFB,
subject to obtaining shareholder approval and the parties obtaining
all necessary regulatory approvals. This Agreement has been duly
executed and delivered by GFB and, subject as aforesaid,
constitutes the legal, valid and binding agreement of GFB. Neither
the execution and delivery of this Agreement by GFB nor
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compliance by GFB with any of the provisions hereof will (a) conflict with or
result in a breach of any provision of GFB's Certificate of
Incorporation, (b) violate, or result with the passage of time in a
violation of, or cause a default or acceleration under, or give
rise to any right to termination, cancellation or acceleration
(whether immediately, or after the giving of notice, or after the
passage of time, or a combination thereof) under, or result in the
creation of any lien, charge or encumbrance on any of assets of GFB
or any GFB Subsidiary pursuant to any of the terms, conditions or
provisions of any agreement, instrument or obligation to which GFB
or any GFB Subsidiary is a party, or by which it or any of its
properties or assets may be bound, and which would have or might
reasonably be expected to have a material adverse effect on the
financial conditions or results of operations of GFB and the GFB
Subsidiaries, taken as a whole, or (c) violate any Federal or state
statute, rule or regulation or judgment, order, writ, injunction or
decree of any Federal or state court, administrative agency or
governmental body, in each case applicable to GFB or any GFB
Subsidiary, or any of their properties or assets, and which
violation would have, or might reasonably be expected to have, a
material adverse effect on the financial condition or results of
operations of GFB and the GFB Subsidiaries, taken as a whole, or
otherwise require any filing with, or obtaining any permit,
authorization, consent or approval of, any Federal, State or local
public body, commission or authority, including without limitation
the New Jersey Industrial Site Recovery Act (N.J.S.A. 13:1K-6 et.
seq.), except those approvals and authorizations specified in
Section 3.5 hereof.
3.5. Governmental Approvals and Filings. No approval,
authorization, consent, license, clearance or order of, declaration
or notification to, or filing, registration or compliance with, any
governmental or regulatory authority is required in order to (a)
authorize the Exchange or (b) prevent the termination of any
material right, privilege, license or agreement of GFB or any GFB
Subsidiary, or to prevent any material loss to GFB or any GFB
Subsidiary or their businesses, taken as a whole, by reason of said
Exchange, except (i) compliance with N.J.S.A. 17:9A-355 through
17:9A-369, inclusive, including approval by the Commissioner and
filing of the Plan of Acquisition, certified as having been
approved by the stockholders of BCB, (ii) compliance with the
Federal Bank Holding Company Act, including approval by the Federal
Reserve Bank of New York, and the expiration of any required
waiting period, and (iii) the requirements of the Securities Act of
1933, the Securities Exchange Act of 1934 and any applicable state
securities laws.
3.6. Equity Investments. Except as set forth in Item 3.6 of the
GFB Disclosure Schedule, GFB does not own, directly or indirectly,
any voting shares of any company other than the GFB Subsidiaries.
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3.7. Financial Information. GFB has delivered to BCB the audited
consolidated statements of condition of GFB and its consolidated
subsidiary as of December 31, 1994 and December 31, 1993, the
related audited consolidated statements of income and cash flows
for each of the three years ended December 31, 1994 (including the
notes thereto), the unaudited consolidated statement of condition
of GFB and its consolidated subsidiary as at June 30, 1995, and the
related unaudited consolidated statements of income and cash flows
for the six months then ended. All of such financial statements,
with the related notes thereto (i) are in accordance with the books
of GFB and its consolidated subsidiaries, (ii) have been prepared
in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except if and
as otherwise indicated therein and (iii) fairly present the
consolidated financial position of GFB and its consolidated
subsidiaries at such dates and the results of their operations and
cash flows for the respective periods indicated therein, except, in
the case of the unaudited statements, for normal year-end
adjustments. The copies of the consolidated corporate income tax
returns of GFB and its consolidated subsidiaries for the 12 month
periods ended December 31, 1994 and December 31, 1993 which have
been delivered to BCB are each true, correct and complete.
3.8. Regulatory Filings. GFB has made available for inspection by
BCB true and complete copies of all reports filed by GFB and Great
Falls Bank with the New Jersey Department of Banking and the
Federal Reserve Board during the past 36 months.
3.9. Absence of Changes. Except for matters described in Item 3.9
of the GFB Disclosure Schedule, since June 30, 1995, there has been
no material adverse change in the assets, properties, business or
condition, financial or otherwise, of GFB and the GFB Subsidiaries,
taken as a whole.
3.10. Agreements. etc. Item 3.10(a) of the GFB Disclosure
Schedule contains a true and complete list of every agreement, to
which GFB or a GFB Subsidiary is a party or by which GFB or a GFB
Subsidiary is bound, which is performable in the future and which,
together with all other contracts of the same or similar nature,
provides for the future obligation to pay or receive more than
$25,000.00 or is otherwise material to the business of GFB and the
GFB Subsidiaries, taken as a whole, including but not limited to
(a) leases of bank branches, (b) any agreements for the sale of
assets other than in the ordinary course of business and (c) any
agreements pursuant to which GFB or a GFB Subsidiary has borrowed
money or may in the future borrow money; provided, however, that
such Item need not list outstanding loans to unaffiliated persons
made by Great Falls Bank or loan commitments and credit facilities
pursuant to which Great Falls Bank may be obligated to lend money
to unaffiliated persons. Except for matters listed in Item 3.10(b)
of the GFB Disclosure Schedule, GFB and the GFB Subsidiaries have
performed all obligations to be performed by
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them to date under all contracts and other agreements listed in Item 3.10(a)
of the GFB Disclosure Schedule and is not in default thereunder; and, to the
best knowledge of GFB, there exists no default, or any event which
upon the giving of notice or the passage of time would give rise to
any default, in the performance of any obligation to be performed
by any other party to any such contract or other agreement.
3.11. Absence of Undisclosed Liabilities. GFB and the GFB
Subsidiaries do not have any liabilities (whether matured or
unmatured, accrued, absolute or contingent or otherwise), which are
material to their businesses or assets, taken as a whole, and which
were not reflected, reserved against, accrued for or otherwise
disclosed on the consolidated balance sheet of GFB and its
consolidated subsidiaries dated as at June 30, 1995, except for
obligations to perform the contracts and the agreements listed on
Item 3.10(a) of the GFB Disclosure Schedule in accordance with
their respective terms.
3.12. Condition of Tangible Assets. Those assets of GFB and the
GFB Subsidiaries that are tangible property are in generally good
operating condition and repair.
3.13. Litigation. etc. Except for matters listed on Item 3.13 of
the GFB Disclosure Schedule: (a) there are no actions, suits,
claims, investigations or proceedings (legal, administrative or
arbitrative) pending or, to the best knowledge of GFB threatened,
against GFB or any of the GFB Subsidiaries, whether at law or in
equity, whether civil or criminal in nature or whether before or by
any Federal, state, municipal or other governmental court,
department, commission, board, bureau, agency or instrumentality,
domestic or foreign, which, if determined adversely to GFB or any
of the GFB Subsidiaries, would have, or could reasonably be
expected to have, a material adverse effect on the financial
condition or results of operations of GFB and the GFB Subsidiaries,
taken as a whole; and (b) there are no existing unsatisfied
judgments, decrees, injunctions or orders of any court,
governmental department, commission, agency, instrumentality or
arbitrator outstanding against GFB or any of the GFB Subsidiaries
which could have, or could reasonably be expected to have, a
material adverse effect on the financial condition or results of
operations of GFB and the GFB Subsidiaries, taken as a whole. No
petition for bankruptcy, voluntary or involuntarily, has been filed
by or against GFB or any of the GFB Subsidiaries, neither GFB nor
any of the GFB Subsidiaries has made any assignment for the benefit
of its creditors and no receiver has been appointed for GFB or any
GFB Subsidiary or any of their assets.
3.14. Permits, Licenses, etc. Item 3.14 of the GFB Disclosure
Schedule contains a list of all licenses, permits, orders and
approvals issued by any department, commission, agency or other
instrumentality of any federal, state, county or local government
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which pertains to the businesses conducted by GFB and the GFB
Subsidiaries, the absence, revocation or non-renewal of which would
have, or could reasonably be expected to have, a material adverse
effect on the financial condition or results of operations of GFB
and the GFB Subsidiaries, taken as a whole.
3.15. Compliance with Laws. Neither GFB nor any of the GFB
Subsidiaries is in violation, in any respect material to the
business or assets of GFB and the GFB Subsidiaries taken as a
whole, of any federal, state, county or local law, ordinance,
regulation or order applicable to the business conducted by it. GFB
and each of the GFB Subsidiaries has all licenses, permits, orders
and approvals of any governmental or regulatory body which are
required for the conduct of the business conducted by it, and
which, if not held by it, could reasonably be expected to have a
material adverse effect upon the business or assets of GFB and the
GFB Subsidiaries taken as a whole (collectively, "Required
Permits"). All such Required Permits are in full force and effect,
no violations are or have been reported in respect of any Required
Permit and no proceeding is pending, or to the knowledge of GFB
threatened, to revoke or limit any such Required Permit.
3.16. Brokers' or Finders' Fees, etc. No agent, broker,
investment banker, person or firm acting on behalf of GFB or under
the authority of GFB is or will be entitled to any broker's or
finder's fee or any other commission or similar fee directly or
indirectly from BCB in connection with any of the transactions
contemplated hereby, except for fees payable to Capital Consultants
of Princeton, Inc. in connection with their rendering of the
fairness opinions contemplated by Sections 8.13 and 9.10 hereof,
which fees shall, in accordance with Section 6.7 hereof, be the
sole responsibility of BCB. It is expressly understood that
Capital Consultants of Princeton, Inc. has been retained solely by
and is working solely for the benefit of BCB in connection with
this matter.
3.17. Employees. GFB has heretofore delivered to BCB a true and
complete list of the names, positions and rates of compensation of
all employees of GFB and the GFB Subsidiaries.
3.18. Name. During the last 3 years GFB has used no business name
other than the name Great Falls Bancorp and the names of the GFB
Subsidiaries.
3.19. Environmental Matters. GFB and the GFB Subsidiaries have
never engaged in any use or operation involving the storage,
manufacture, generation or transportation of hazardous substances,
and there are no hazardous substances located on any properties
owned or operated by GFB or the GFB Subsidiaries, including but not
limited to the premises in which the business of GFB or Great Falls
Bank is conducted. Each of GFB and the GFB Subsidiaries is in
compliance with all environmental laws, rules and regulations
applicable to it or its properties. Neither GFB nor any of the
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GFB Subsidiaries has received notice of any violation of any such law,
rule or regulation or of any enforcement action by any governmental
agency or authority pertaining to GFB or any of the GFB
Subsidiaries or any property now or heretofore owned or operated by
any of them. Neither GFB nor any of the GFB Subsidiaries has
received notice of, or is otherwise aware of, any spills, releases
or discharges of hazardous substances on or from any property now
or heretofore owned or operated by GFB or any of the GFB
Subsidiaries.
3.20. Benefit Plans; Employee Relations.
(a) Except as set forth in Item 3.20(a) of the GFB Disclosure
Schedule, (i) each of GFB and the GFB Subsidiaries is in material
compliance with all applicable Federal, state, local and foreign
laws and regulations respecting employment and employment practices
and terms and conditions of employment and wages and hours, (ii) no
collective bargaining agreement presently covers (nor has any, in
the past, covered) any employees of GFB or any of the GFB
Subsidiaries, nor is any currently being negotiated by GFB or any
of the GFB Subsidiaries, nor is GFB or any of the GFB Subsidiaries
a party to any other written contract with or material enforceable
oral commitment to any labor union, (iii) there is no unfair labor
practice complaint against GFB or any of the GFB Subsidiaries
pending before the National Labor Relations Board or any comparable
state, local or foreign agency, and (iv) there is no labor strike,
dispute, slowdown, stoppage or organizational effort actually
pending or, to the best knowledge of GFB, threatened against or
involving GFB or any of the GFB Subsidiaries.
(b) Item 3.20(b) of the GFB Disclosure Schedule contains a true and
complete list of all written contracts with, or oral commitments
for the employment, retention or payment of any severance or other
benefit to, any employee, consultant or other person.
(c) Item 3.20(c) of the GFB Disclosure Schedule contains a true and
complete list of all Employee Pension Benefit Plans (as defined in
Section 3(2) of ERISA), all Employee Welfare Benefit Plans (as
defined in Section 3(1) of ERISA), all incentive compensation plans
(including the GFB Stock Option Plans) and all other employee
benefit programs maintained by GFB and the GFB Subsidiaries in
respect of their employees (other than normal policies concerning
vacations, holidays and salary continuation during short absences
for illness or other reasons) (all of the foregoing appearing on
such list being herein sometimes collectively referred to as
"Employee Benefit Programs"). GFB has heretofore delivered to BCB
true and complete copies of all plan texts and other agreements
adopted in connection with the Employee Benefit Programs (including
separation policies). With respect to such plans, Item 3.20(c) of
the GFB Disclosure Schedule contains a true and complete list of
(and GFB has heretofore delivered to BCB
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true and complete copies of):
(i) the most recent IRS determination letter relating to each of
the Employee Pension Benefit Plans listed in such Item 3.20(c) (the
"GFB Retirement Plans");
(ii) the most recent Annual Report (Form 5500 Series) and
accompanying schedules of each of the Employee Welfare Benefit
Plans listed in such Item (the "GFB Welfare Plans") and each of the
GFB Retirement Plans, as filed pursuant to applicable law;
(iii) the Summary Plan Description (as currently in effect)
distributed to employees for each of the GFB Retirement Plans and
Welfare Plans; and
(iv) the most recent actuarial report received with respect to each
of the GFB Retirement Plans that is a defined benefit plan.
(d) Except as disclosed in Item 3.20(d) of the GFB Disclosure
Schedule, (i) the GFB Retirement Plans are in substantial
compliance with ERISA and will constitute qualified plans under the
Internal Revenue Code of 1986 immediately prior to the Effective
Time, (ii) no material violation of ERISA has occurred in
connection with the administration of any of the GFB Retirement
Plans or any of the GFB Welfare Plans, (iii) there are no actions,
suits or claims pending or, to the BCB's best knowledge, threatened
against any of the GFB Retirement Plans or Welfare Plans, or any
administrator or fiduciary thereof, (iv) with respect to each of
the GFB Retirement Plans and Welfare Plans as to which an Annual
Report is required to be filed, no liabilities as of the date of
the most recent Annual Report relating to such Plan exist unless
specifically referred to in such Annual Report, and no materially
adverse change has occurred with respect to the financial materials
covered by such Annual Report since the date thereof, (v) no
accumulated funding deficiency (within the meaning of Section 412
of the Internal Revenue Code of 1986) exists with respect to any of
the GFB Retirement Plans and (vi) no "reportable event" (as defined
in Section 4043 of ERISA) has occurred with respect to any of the
GFB Retirement Plans that are subject to Title IV of ERISA. All of
the GFB Welfare Plans are either self-funded, or are funded through
a contract with an insurance company.
3.21. Tax Matters. Each of GFB and the GFB Subsidiaries has filed
all Federal, state, local and foreign income and other tax returns,
required to be filed by it, and each such return is complete and
accurate in all material respects. Each of GFB and the GFB
Subsidiaries has paid all taxes of any nature whatsoever, with any
related penalties, interest and liabilities (any of the foregoing
being referred to herein as a "Tax") that are shown on such tax
returns as due and payable on or before the date hereof, other than
such Taxes as are being contested in good faith and
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which are listed in Item 3.21 of the GFB Disclosure Schedule. The provisions
for current and deferred Taxes reflected on the consolidated
statement of condition of GFB and its consolidated subsidiaries as
at June 30, 1995 are sufficient in all material respects. Except
as set forth in Item 3.21 of the GFB Disclosure Schedule, there are
no claims or assessments pending against GFB or any of the GFB
Subsidiaries for any alleged deficiency in Tax, and GFB does not
know of any threatened Tax claims or assessments against it or any
of the GFB Subsidiaries, which, in either case, involve amounts
either singly or in the aggregate in excess of $25,000.00.
3.22. Insurance. Item 3.22 of the GFB Disclosure Schedule contains
a true and complete list of all policies of liability, theft,
fidelity, property damage and other forms of insurance held by GFB
and the GFB Subsidiaries (specifying the insurer, amount of
coverage, annual premium, type of insurance, policy number and any
pending material claims thereunder). The policies listed in such
Item 3.22 are outstanding and duly in force and all premiums with
respect to such policies are currently paid. Except as set forth
in such Item 3.22, neither GFB nor any of the GFB Subsidiaries has,
during the past three fiscal years, been denied or had revoked or
rescinded any policy of insurance.
3.23. Dealings with Officers and Directors. Except as set forth
in Item 3.23 of the GFB Disclosure Schedule, there is no present
transaction, business relationship or indebtedness involving GFB or
any of the GFB Subsidiaries which is of a type described in Item
404 of Regulation S-K (promulgated by the Securities and Exchange
Commission), or which is a "covered transaction" as that term is
defined in Section 23A of the Federal Reserve Act (12 U.S. Code
371c), as amended, nor is GFB or any of the GFB Subsidiaries a
party to any agreement or understanding which provides for or
contemplates such a transaction, business relationship or
indebtedness in the future. Except for the Employee Benefit
Programs referred to in Section 3.20, neither GFB nor any of the
GFB Subsidiaries is a party to any agreement involving payments to
any person or entity based on the profits or gross revenues of GFB
or any of the GFB Subsidiaries.
3.24. SEC Filings. GFB has filed all reports required to be filed
by it pursuant to the Securities Exchange Act of 1934, as amended,
during the 36 months preceding the date of this Agreement.
3.25. Disclosure Schedule and Other Materials Furnished by GFB.
The disclosure schedule delivered simultaneously with this
Agreement by GFB to BCB and identified and initialed as such by an
officer of GFB (the "GFB Disclosure Schedule"), together with any
materials furnished to BCB by GFB and referred to in this Article
III, are true and complete in all material respects and do not
contain any untrue statement of a material fact or omit to state
any material fact which is necessary to make the statements
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contained therein not misleading. Any disclosure made in any Item
of the GFB Disclosure Schedule shall be deemed made for purposes of
all other applicable Items in the GFB Disclosure Schedule.
3.26. Survival. The representations and warranties of GFB
contained in this Article III shall not survive the Closing.
ARTICLE IV
COVENANTS OF BCB
4.1. Regular Course of Business. Except as otherwise consented to
in writing by GFB, prior to the Effective Time, BCB will carry on
its business diligently and in the ordinary course only consistent
with past practice through the date hereof, and, without limiting
the generality of the foregoing, BCB will use its best efforts to
preserve its present business organization (including that of the
BCB Subsidiaries) intact, keep available the services of the
present executive officers of BCB and the BCB Subsidiaries and
preserve the present relationships of BCB and the BCB Subsidiaries
with persons having business dealings with them; provided, that BCB
shall not be required to take any unreasonable or extraordinary act
or any action which would conflict with any other term of this
Acquisition Agreement.
4.2. Restricted Activities and Transactions. Except as otherwise
consented to in writing by GFB, prior to the Effective Time, BCB
will not, and will not permit the BCB Subsidiaries, to:
(a) amend its Certificate of Incorporation or By-Laws;
(b) issue, sell or deliver, or agree to issue, sell or deliver, any
shares of any class of capital stock of BCB or any securities
convertible into any such shares, or any options, warrants, or
other rights calling for the issuance, sale or delivery of any such
shares or convertible securities, except that BCB may issue shares
of BCB Stock upon exercise of stock options granted under the BCB
Stock Option Plan which are outstanding on the date hereof;
(c) issue any options under the BCB Stock Option Plan;
(d) except in the ordinary course of business (and consistent with
past practice) (i) borrow, or agree to borrow, any funds or
voluntarily incur, assume or become subject to, whether directly or
by way of guarantee or otherwise, any obligation or liability
(absolute or contingent), (ii) cancel or agree to cancel any debts
or claims, (iii) lease, sell or transfer, agree to lease, sell or
transfer, or grant or agree to grant any preferential rights to
lease or acquire, any of its assets, property or rights, (iv) make
or permit any amendment to or termination of any material contract,
agreement, license or other right to which it is a party or (v)
mortgage or pledge any of its assets, tangible or intangible;
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(e) grant any increase in compensation, other than normal merit
increases and cost-of-living increases required by collective
bargaining agreements, if any, or pursuant to its general
prevailing practices or existing employment agreements, to any
employee or group of employees or to all employees generally;
(f) enter into or make any change in any Employee Benefit Program,
except as required by law;
(g) acquire voting securities or any other ownership interest in
any corporation, association, joint venture, mutual savings
association, partnership, business trust or other business entity,
or acquire control or ownership of all or a substantial portion of
the assets of any of the foregoing, or merge, consolidate or
otherwise combine with any other entity, or acquire any branch of
any entity engaged in the business of banking, or enter into any
agreement providing for any of the foregoing;
(h) directly or indirectly solicit or authorize the solicitation of
or enter into any agreement or understanding or, except to the
extent required by law, engage in any discussions with, or furnish
any non-public information concerning BCB or the BCB Subsidiaries
to, any person or entity other than GFB or a representative thereof
with respect to any offer or possible offer from a third party (i)
to purchase shares of any class of capital stock of BCB or any of
the BCB Subsidiaries or any securities convertible into any such
shares, or to acquire any option, warrant or other right to
purchase or otherwise acquire any such shares or convertible
securities, (ii) to make a tender or exchange offer for any shares
of any class of capital stock of BCB or any of the BCB
Subsidiaries, (iii) to purchase, lease or otherwise acquire all or
a substantial portion of the assets of BCB or any of the BCB
Subsidiaries, or (iv) to merge, consolidate or otherwise combine
with BCB or any of the BCB Subsidiaries (the transactions described
in (i), (ii), (iii) and (iv) above are hereinafter sometimes
referred to as "Acquisition Transactions"); notwithstanding the
foregoing, BCB may enter into discussions or negotiations in
connection with a possible Acquisition Transaction which was not
solicited by BCB if the Board of Directors of BCB, after
consultation with counsel, determines that such discussions or
negotiations should be commenced in the exercise of the Board's
fiduciary responsibilities; or
(i) except in the ordinary course of business, enter into or agree
to enter into any agreement or transaction material to the business
of BCB and the BCB Subsidiaries, taken as a whole.
4.3. Dividends and Distributions; Repurchases. Except as
otherwise consented to in writing by GFB, prior to the Effective
Time, BCB will not declare or pay any dividend on its capital stock
in cash, stock or property, and will not redeem, repurchase or
otherwise acquire any shares of its capital stock; provided,
however, that BCB may continue to declare and pay its regular
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quarterly dividend of $0.10 per share in accordance with its
current practices.
4.4. Advice of Changes. BCB will promptly advise GFB in writing
of (i) any event occurring subsequent to the date of this Agreement
which would render any representation or warranty of BCB contained
in this Agreement, if made on or as of the date of such event or on
or as of the Closing, untrue or inaccurate in any material respect,
(ii) any material adverse change in the business of BCB and the BCB
Subsidiaries, taken as a whole, and (iii) any exercises of any
options outstanding under the BCB Stock Option Plan.
4.5. Acquisition Proposals. BCB will provide GFB with same-day
notice of any offer BCB receives from or on behalf of any third
party regarding a proposed Acquisition Transaction, including in
such notice the identity of the offeror and the complete terms of
any such offer, and will provide GFB with same day notice of the
receipt of any information that such an offer is likely to be made
and any available details with respect to such potential offer.
4.6. Affiliates. BCB will deliver to GFB as soon as practicable
after the execution of this Acquisition Agreement, but in no event
later than twenty (20) days hereafter, a letter identifying all
persons who may be deemed to be "affiliates" of BCB within the
meaning of Rule 145 promulgated under the Securities Act of 1933 or
who may be deemed to be "affiliates" of BCB as that term is used
for purposes of qualifying for "pooling of interests" accounting
treatment (collectively, "BCB Affiliates"). BCB will furnish such
information and documents as GFB's counsel may request for the
purpose of reviewing such letter. BCB will cause each BCB
Affiliate to issue and deliver to GFB within three (3) weeks after
the date hereof an agreement, in such form as GFB's counsel shall
reasonably require, to the effect that, among other things, no GFB
Securities to be acquired by such person in the Exchange will be
disposed of by such person except in compliance with Rule 145 under
the Securities Act of 1933 or another exemption from the
registration requirements of the Securities Act of 1933 or pursuant
to an effective registration statement under the Securities Act of
1933, and that such person agrees to be bound by the rules which
will permit the transaction contemplated by the Acquisition
Agreement to be treated as a pooling of interests for accounting
purposes.
4.7. Consents, Approvals and Filings.
(a) BCB will use its best efforts to (i) comply as promptly as
practicable with the governmental requirements specified in Section
2.5 and obtain all necessary approvals, authorizations, consents,
licenses, clearances or orders of governmental and regulatory
authorities referred to in such Section; provided, however, that
compliance with the Federal Bank
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Holding Company Act and state securities laws shall be GFB's responsibility
and responsibility for compliance with Federal securities laws shall be
allocated in accordance with Article VII hereof; further provided, that BCB
shall not be required to take any extraordinary action or enter
into any agreement which in the reasonable opinion of BCB is unduly
burdensome to BCB in order to obtain any such approvals,
authorizations, etc.
(b) BCB shall provide GFB with copies of all filings made by BCB
after the date hereof to the New Jersey Department of Banking, the
Federal Deposit Insurance Corporation and any other regulatory
agency which has authority to regulate BCB within two business day
of such filing.
(c) BCB shall prepare unaudited financial statements on a monthly
basis and shall furnish copies of such statements to GFB by the
10th day following the end of each month.
4.8. Access to Records and Properties. BCB agrees to assist GFB
in conducting such investigations and reviews of the business,
financial condition, properties, assets, books and records of BCB
and the BCB Subsidiaries as GFB deems necessary or desirable, and
will provide, and will cause its independent public accountants to
provide, GFB and its employees, agents and representatives full
access to, and complete information concerning, all properties,
books, records (including tax returns filed or in preparation),
personnel and premises, and audit work papers and other records of
its independent public accountants, pertaining to the business of
BCB and the BCB Subsidiaries. Neither any investigation by GFB nor
the receipt by GFB of any data or information from BCB shall affect
the right of GFB to rely on the representations, warranties or
covenants of BCB or the right of GFB to terminate this Agreement as
provided in Article XI hereof.
ARTICLE V
COVENANTS OF GFB
5.1. Regular Course of Business. Except as otherwise consented to
in writing by BCB, prior to the Effective Time, GFB will carry on
its business diligently and in the ordinary course only consistent
with past practice through the date hereof, and, without limiting
the generality of the foregoing, GFB will use its best efforts to
preserve its present business organization (including that of the
GFB Subsidiaries) intact, keep available the services of the
present executive officers of GFB and the GFB Subsidiaries and
preserve the present relationships of GFB and the GFB Subsidiaries
with persons having business dealings with them; provided, that GFB
shall not be required to take any unreasonable or extraordinary act
or any action which would conflict with any other term of this
Acquisition Agreement.
5.2. Restricted Activities and Transactions. Except as otherwise
consented to in writing by BCB, prior to the Effective
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Time, GFB will not, and will not permit the GFB Subsidiaries, to:
(a) amend its Certificate of Incorporation or By-Laws;
(b) issue, sell or deliver, or agree to issue, sell or deliver, any
shares of any class of capital stock of GFB or any securities
convertible into any such shares, or any options, warrants, or
other rights calling for the issuance, sale or delivery of any such
shares or convertible securities, except that GFB may (i) issue
shares of GFB Stock upon exercise of stock options granted under
the GFB Stock Option Plans which are outstanding on the date
hereof, (ii) issues shares of GFB Stock upon the exercise of
purchase rights by the holders of the Cancellable Mandatory Stock
Purchase Contracts outstanding on the date hereof, (iii) exercise
its rights to cancel any or all of the Cancellable Mandatory Stock
Purchase Contracts outstanding on the date hereof and (iv) issue
and deliver certificates for GFB stock in exchange for certificates
representing stock of Family First Federal Savings Bank in
accordance with the Agreement and Plan of Merger dated August 31,
1994, between GFB, Great Falls Bank and Family First Federal
Savings Bank;
(c) issue any options under the GFB Stock Option Plans;
(d) except in the ordinary course of business (and consistent with
past practice), (i) borrow, or agree to borrow, any funds or
voluntarily incur, assume or become subject to, whether directly or
by way of guarantee or otherwise, any obligation or liability
(absolute or contingent), (ii) cancel or agree to cancel any debts
or claims, (iii) lease, sell or transfer, agree to lease, sell or
transfer, or grant or agree to grant any preferential rights to
lease or acquire, any of its assets, property or rights, (iv) make
or permit any amendment to or termination of any material contract,
agreement, license or other right to which it is a party, except
that GFB may exercise its rights to redeem any or all of 8.5%
Redeemable Subordinated Debentures issued by GFB and due November
1, 1998 and except that GFB may exercise its rights to cancel any
or all of the Cancellable Mandatory Stock Purchase Contracts
outstanding on the date hereof, or (v) mortgage or pledge any of
its assets, tangible or intangible;
(e) grant any increase in compensation, other than normal merit
increases and cost-of-living increases required by collective
bargaining agreements, if any, or pursuant to its general
prevailing practices or existing employment agreements, to any
employee or group of employees or to all employees generally;
(f) enter into or make any change in any Employee Benefit Program,
except as required by law;
(g) acquire voting securities or any other ownership
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interest in any corporation, association, joint venture, mutual
savings association, partnership, business trust or other business entity,
or acquire control or ownership of all or a substantial portion of
the assets of any of the foregoing, or merge, consolidate or
otherwise combine with any other entity, or acquire any branch of
any entity engaged in the business of banking, or enter into any
agreement providing for any of the foregoing;
(h) directly or indirectly solicit or authorize the solicitation of
or enter into any agreement or understanding or, except to the
extent required by law, engage in any discussions with, or furnish
any non-public information concerning GFB or the GFB Subsidiaries
to, any person or entity other than BCB or a representative thereof
with respect to any offer or possible offer from a third party (i)
to purchase shares of any class of capital stock of GFB or any of
the GFB Subsidiaries or any securities convertible into any such
shares, or to acquire any option, warrant or other right to
purchase or otherwise acquire any such shares or convertible
securities, (ii) to make a tender or exchange offer for any shares
of any class of capital stock of GFB or any of the GFB
Subsidiaries, (iii) to purchase, lease or otherwise acquire all or
a substantial portion of the assets of GFB or any of the GFB
Subsidiaries, or (iv) to merge, consolidate or otherwise combine
with GFB or any of the GFB Subsidiaries; notwithstanding the
foregoing, GFB may enter into discussions or negotiations in
connection with a possible transaction of the type described in
(i), (ii), (iii) or (iv) above which was not solicited by GFB if
the Board of Directors of GFB, after consultation with counsel,
determines that such discussions or negotiations should be
commenced in the exercise of the Board's fiduciary
responsibilities; or
(i) except in the ordinary course of business or as expressly
permitted pursuant to any of the foregoing provisions of this
Section 5.2, enter into or agree to enter into any agreement or
transaction material to the business of GFB and the GFB
Subsidiaries, taken as a whole.
5.3. Dividends and Distributions; Repurchases. Except as
otherwise consented to in writing by BCB, prior to the Effective
Time, GFB will not declare or pay any dividend on its capital stock
in cash, stock or property, and will not redeem, repurchase or
otherwise acquire any shares of its capital stock; provided, that
GFB may continue to declare and pay periodic cash dividends in
accordance with its current practices.
5.4. Advice of Changes. GFB will promptly advise BCB in writing
of (i) any event occurring subsequent to the date of this Agreement
which would render any representation or warranty of GFB contained
in this Agreement, if made on or as of the date of such event or on
or as of the Closing, untrue or inaccurate in any material respect,
(ii) any material adverse change in the business of GFB and the GFB
Subsidiaries, taken as a whole, and (iii) any
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exercises of any options outstanding under the GFB Stock Option Plans.
5.5. Acquisition Proposals. GFB will provide BCB with same-day
notice of any offer GFB receives from or on behalf of any third
party of the type referred to in Section 5.2(h) hereof, including
in such notice the identity of the offeror and the complete terms
of any such offer, and will provide BCB with same day notice of the
receipt of any information that such an offer is likely to be made
and any available details with respect to such potential offer.
5.6. Consents, Approvals and Filings.
(a) GFB will use its best efforts to (i) comply as promptly as
practicable with the governmental requirements specified in Section
3.5 and obtain all necessary approvals, authorizations, consents,
licenses, clearances or orders of governmental and regulatory
authorities referred to in such Section; provided, however, that
responsibility for compliance with Federal securities laws shall be
allocated in accordance with Article VII hereof; further provided,
that GFB shall not be required to take any extraordinary action or
enter into any agreement which in the reasonable opinion of GFB is
unduly burdensome to GFB in order to obtain any such approvals,
authorizations, etc.
(b) GFB shall provide BCB with copies of all filings made by GFB or
Great Falls Bank after the date hereof to the New Jersey Department
of Banking, the Federal Deposit Insurance Corporation and any other
regulatory agency which has authority to regulate GFB or Great
Falls Bank within two business day of such filing.
(c) GFB shall prepare unaudited consolidated financial statements
on a monthly basis and shall furnish copies of such statements to
BCB by the 10th day following the end of each month.
5.7. Access to Records and Properties. GFB agrees to assist BCB
in conducting such investigations and reviews of the business,
financial condition, properties, assets, books and records of GFB
and the GFB Subsidiaries as BCB deems necessary or desirable, and
will provide, and will cause its independent public accountants to
provide, BCB and its employees, agents and representatives full
access to, and complete information concerning, all properties,
books, records (including tax returns filed or in preparation),
personnel and premises, and audit work papers and other records of
its independent public accountants, pertaining to the business of
GFB and the GFB Subsidiaries. Neither any investigation by BCB nor
the receipt by BCB of any data or information from GFB shall affect
the right of BCB to rely on the representations, warranties or
covenants of GFB or the right of BCB to terminate this Agreement as
provided in Article XI hereof.
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5.8. Affiliates. GFB will deliver to BCB as soon as practicable
after the execution of this Acquisition Agreement, but in no event
later than twenty (20) days hereafter, a letter identifying all
persons who may be deemed to be "affiliates" of BCB as that term is
used for purposes of qualifying for "pooling of interests"
accounting treatment (collectively, "GFB Affiliates"). GFB will
furnish such information and documents as BCB's counsel may request
for the purpose of reviewing such letter. GFB will cause each BCB
Affiliate to issue and deliver to BCB within three (3) weeks after
the date hereof an agreement, in such form as BCB's counsel shall
reasonably require, to the effect that, among other things, such
person agrees to be bound by the rules which will permit the
transaction contemplated by the Acquisition Agreement to be treated
as a pooling of interests for accounting purposes.
ARTICLE VI
MUTUAL COVENANTS AND AGREEMENTS
6.1. Confidentiality. Personnel of GFB have received in the
course of the negotiation of this Acquisition Agreement, and in the
course of prior negotiations, and are expected to continue to
receive, confidential information concerning BCB's assets, methods
of operation, loan and deposit pricing, investment policies, and
other trade secrets and confidential information concerning BCB's
business; and personnel of BCB have received in the course of the
negotiation of this Acquisition Agreement, and in the course of
prior negotiations, and are expected to continue to receive,
confidential information concerning the assets, methods of
operation, loan and deposit pricing and investment policies of GFB
and the GFB Subsidiaries, and other trade secrets and confidential
information concerning the businesses of GFB and the GFB
Subsidiaries. Such information has been furnished by the
respective parties in good faith to the other party in confidence
solely to enable the other party to evaluate the party furnishing
the information with a view to evaluating a proposed acquisition or
merger transaction, and with the agreement that the party receiving
such information will (1) treat all such information at all times
as being confidential and proprietary to the party furnishing the
information, (2) not improperly divulge or make any unauthorized
disclosure of such confidential information to any third parties,
and (3) not make any use of such confidential information except in
connection with its evaluation of the other party's business for
purposes of a proposed acquisition or merger transaction.
Following termination or cancellation of this Agreement, each party
shall, if requested to do so by the other, return all materials
furnished to it by the other which contain such confidential
materials, without retaining any copy thereof.
The provisions of this Section 6.1 will be specifically
enforceable, entitling each party to injunctive relief against the
other. The provisions of this Section 6.1 will survive any
termination or cancellation of this Agreement.
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6.2. Expenses. Subject to the provisions of Article XI hereof, in
the event the Exchange is not consummated, GFB and BCB will each
separately bear its own expenses incurred in connection with this
Agreement or any transaction contemplated hereby.
6.3. Public Announcements. Recognizing that they each have
independent obligations with respect to the dissemination of
material information to the public and to their respective
shareholders, GFB and BCB will to the maximum extent feasible
advise and confer with each other prior to the issuance of any
reports, statements or releases (including reports, statements or
releases to their respective employees) pertaining to this
Agreement.
6.4. Further Assurances. GFB and BCB agree to execute and deliver
such instruments and take such other actions as either of them may
reasonably require, consistent with the fiduciary duties of their
respective Boards of Directors, in order to carry out the intent of
this Agreement.
6.5. Post-Effective Time Operations. From and after the Effective
Time, BCB shall not take any of the following actions without the
prior approval of the Board of Directors of GFB: Any action of the
types described in Section 4.2 hereof, subject to such additions
and deletions as the Board of Directors of GFB may adopt from time
to time.
6.6. GFB 401(k) Plan. The employer contribution to GFB's 401(k)
Plan for calendar year 1995 shall be determined as though the
Exchange had not occurred.
6.7. Investment Bankers' Fees. All fees of Capital Consultants of
Princeton, Inc. for its services in connection with the transaction
contemplated by this Agreement, shall be the sole responsibility of
BCB.
ARTICLE VII
PROXY AND REGISTRATION STATEMENTS
7.1. Preparation. GFB and BCB acknowledge that the transactions
contemplated hereby are subject to the provisions of the Securities
Act of 1933 and Rule 145 promulgated thereunder by the Securities
and Exchange Commission (the "SEC"). GFB and BCB will cooperate in
the prompt preparation of a proxy statement for submission to the
stockholders of BCB in connection with the meeting of such
stockholders referred to in Section 1.5(a) and of a proxy statement
for submission to the stockholders of GFB in connection with the
meeting of such stockholders referred to in Section 1.5(b) (the
"GFB Proxy Statement"). The proxy statement to be submitted to
the stockholders of BCB, in its definitive form, together with any
and all amendments and supplements thereto and all information
incorporated by reference therein (the "BCB Proxy Statement") will
also serve as the prospectus (the
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"Prospectus") to be included in the Registration Statement (as defined below).
GFB will file a registration statement on Form
S-4 (which registration statement, in the form it is declared
effective by the SEC, together with any and all amendments and
supplements thereto and all information incorporated by reference
therein, is referred to herein as the "Registration Statement")
under and pursuant to the provisions of the Securities Act of 1933
for the purpose of registering the GFB Stock to be distributed to
holders of BCB Stock in accordance with the provisions of this
Agreement. Each of BCB and GFB agrees to provide promptly to the
other such information concerning its business and financial
statements and affairs as, in the reasonable judgment of the other
party or its counsel, may be required or appropriate for inclusion
in the Registration Statement, the BCB Proxy Statement or the GFB
Proxy Statement, or in any amendments or supplements thereto, and
to cause its counsel and auditors to cooperate with the other's
counsel and auditors in the preparation of the Registration
Statement, the BCB Proxy Statement and the GFB Proxy Statement.
GFB agrees to use its best efforts to have the Registration
Statement declared effective under the Securities Act of 1933 as
soon as may be practicable.
7.2. Representations. Warranties and Covenants of BCB. BCB
represents and warrants to GFB that the BCB Proxy Statement will
not, at the time of its issuance and at the time of the meeting of
stockholders of BCB contemplated by Section 1.5(a) hereof, contain
any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements made, in
the light of the circumstances under which they are made, not
misleading, except that no representation is made with respect to
information set forth in the BCB Proxy Statement concerning GFB or
the GFB Subsidiaries furnished or approved by GFB. BCB will
promptly advise GFB in writing if at any time prior to the
Effective Time it shall obtain knowledge of any facts that might
make it necessary or appropriate to amend or supplement the
Registration Statement, the BCB Proxy Statement or the GFB Proxy
Statement in order to make the statements contained or incorporated
by reference therein not misleading or to comply with applicable
law.
7.3. Representations, Warranties and Covenants of GFB. GFB
represents and warrants to BCB that the Registration Statement
(including the BCB Proxy Statement), at the time it becomes
effective and at the time of the meeting of stockholders of BCB
contemplated by Section 1.5(a) hereof, will not contain any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements made, in the light of the
circumstances under which they were made, not misleading, except
that no representation is made with respect to information set
forth in the Registration Statement (including the BCB Proxy
Statement) concerning BCB furnished or approved by BCB.
7.4. Mailings to Stockholders. BCB shall cause the BCB
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Proxy Statement to be mailed to its stockholders as soon as practicable
in accordance with applicable Federal and state law; provided,
however, that BCB shall not mail or otherwise furnish the BCB Proxy
Statement to its stockholders unless and until GFB advises BCB that
the Registration Statement is effective under the Securities Act of
1933. Neither GFB or BCB will use any proxy material other than
the BCB Proxy Statement and the other proxy material filed with the
SEC prior to or concurrently with the filing of the BCB Proxy
Statement, and other than the GFB Proxy Statement, without giving
prior notice to the other.
7.5. Blue Sky. GFB will use its best efforts to obtain all
necessary blue sky permits and approvals required to carry out the
transactions contemplated by this Agreement.
7.6. Tax Opinion. BCB shall obtain from Williams, Caliri, Miller
& Otley, or other counsel reasonably satisfactory to GFB, an
opinion regarding the federal tax consequences of the Exchange to
BCB stockholders.
ARTICLE VIII
CONDITIONS TO OBLIGATIONS OF GFB
The obligations of GFB to consummate the transactions contemplated
hereby are subject to the satisfaction of the following conditions
unless waived by GFB:
8.1. Representations and Warranties. The representations and
warranties of BCB set forth in Article II and Article VII hereof
shall be true and correct in all material respects as of the date
of this Agreement and as of the date of the Closing contemplated by
Article X hereof (the "Closing Date") as though made on and as of
the Closing Date.
8.2. Covenants. BCB shall have performed and complied in all
material respects with each and every covenant, agreement and
condition required by this Agreement to be performed or complied
with by it prior to the Closing Date.
8.3. Certificates. BCB shall have furnished to GFB a certificate
of its President in form and substance reasonably satisfactory to
GFB to the effect that (i) the representations and warranties of
BCB contained in Article II and Article VII of this Agreement are
true and correct in all material respects at and as of the Closing
Date as though such representations and warranties were made on the
date thereof, (ii) BCB has complied with all terms, covenants and
provisions of this Agreement required to be performed or complied
with by BCB prior to the Closing Date and (iii) the condition set
forth in Section 8.6 hereof and, to the knowledge of BCB, the
condition set forth in Section 8.8 hereof are each satisfied as of
the Closing Date. BCB shall also have furnished such other
certificates as GFB's counsel shall have reasonably requested.
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8.4. Opinion of Counsel. GFB shall have received an opinion of
McCarter & English, counsel to BCB, dated the date of the Closing
and addressed to GFB, in form and substance satisfactory to counsel
to GFB, as to such matters as counsel to GFB shall have reasonably
requested. In rendering such opinion, such counsel may rely upon
certificates of officers of BCB as to matters of fact.
8.5. Affiliates. GFB shall have received the letter identifying
the BCB Affiliates and the Affiliate Agreements required by Section
4.6 hereof.
8.6. Approval of Shareholders of GFB. The Plan of Acquisition and
this Acquisition Agreement shall have been approved at a meeting of
the shareholders of GFB by a majority of the votes cast by the
shareholders of GFB, as required by N.J.S.A. 14A:10-3.
8.7. Approval of Shareholders of BCB. The Plan of Acquisition and
this Acquisition Agreement shall have been approved at a meeting of
the shareholders of BCB by 2/3 of the capital stock of BCB entitled
to vote, as required by N.J.S.A. 17:9A-359.
8.8. No Governmental or Other Proceeding or Litigation. No order
of any court or administrative agency (including, without
limitations any banking regulatory authority) shall be in effect
which restrains or prohibits any transaction contemplated hereby or
which would limit or otherwise affect in a material respect GFB's
ownership of BCB; no suit, action, or proceeding by any
governmental body or other person or entity, or investigation or
inquiry by any governmental body, shall be pending or, in the case
of a governmental body, threatened against GFB or BCB, which
challenges the validity or legality, or seeks to restrain the
consummation, of any transaction contemplated hereby or which seeks
to limit or otherwise affect GFB's ownership of BCB; and no written
advice shall have been received by GFB or BCB or their respective
counsel from any governmental body, and remain in effect, stating
that an action or proceeding will, if the exchange of shares
contemplated hereby is consummated or sought to be consummated, be
filed seeking to invalidate or restrain said transaction or limit
or otherwise affect GFB's ownership of BCB.
8.9. Approvals and Consents. All approvals and authorizations of
the public authorities referred to in Sections 2.5 and 3.5 hereof,
shall have been obtained, and no such consents or approvals shall
have imposed a condition to such consent or approval which in the
reasonable opinion of GFB is unduly burdensome, and all waiting
periods specified by law shall have passed.
8.10. Registration Statement Effective. The Registration
Statement shall have become effective prior to the mailing of the
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Proxy Statement by BCB to its stockholders, no stop order
suspending the effectiveness of the Registration Statement shall
have been issued, and no proceedings for that purpose shall have
been initiated or threatened by the SEC.
8.11. Accountants' Opinion. GFB shall have received an opinion of
Arthur Andersen LLP that the acquisition of BCB by GFB will qualify
to be treated for accounting purposes as a pooling of interests.
8.12. Tax Opinion. GFB shall have received an opinion of
Williams, Caliri, Miller & Otley to the effect that the exchange of
shares contemplated hereby shall be a tax free transaction for
federal income tax purposes. Said opinion shall be reaffirmed as
of the Closing Date.
8.13. Fairness Opinions. The Board of Directors of BCB shall have
received an opinion of Capital Consultants of Princeton, Inc. in
form and substance reasonably satisfactory to said Board of
Directors, dated as of the date of the BCB Proxy Statement and
reaffirmed as of the Closing Date, that the Exchange is fair to the
stockholders of BCB. The opinion to be dated as of the date of the
BCB Proxy Statement shall be included in the BCB Proxy Statement.
ARTICLE IX
CONDITIONS TO OBLIGATIONS OF BCB
The obligations of BCB to consummate the transactions contemplated
hereby are subject to the satisfaction of the following conditions
unless waived by BCB:
9.1. Representations and Warranties. The representations and
warranties of GFB set forth in Article III and Article VII hereof
shall be true and correct in all material respects as of the date
of his Agreement and as of the Closing Date as though made on and
as of the Closing Date.
9.2. Covenants. GFB shall have performed and complied in all
material respects with each and every covenant, agreement and
condition required by this Agreement to be performed or complied
with by it prior to the Closing Date.
9.3. Certificates. GFB shall have furnished to BCB a certificate
of its President in form and substance reasonably satisfactory to
BCB to the effect that (i) the representations and warranties of
GFB contained in Article III and Article VII of this Agreement are
true and correct in all material respects at and as of the Closing
Date as though such representations and warranties were made on the
date thereof (ii) GFB has complied with all terms, covenants and
provisions of this Agreement required to be performed or complied
with by GFB prior to the Closing Date and (iii) to the knowledge of
GFB, the conditions set forth in Section
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9.7 hereof are each satisfied as of the Closing Date. GFB shall also have
furnished such other certificates as BCB's counsel shall have reasonably
requested.
9.4. Opinion of Counsel. BCB shall have received an opinion of
Williams, Caliri, Miller & Otley, counsel to GFB, dated the date of
the Closing and addressed to BCB, in form and substance
satisfactory to counsel to BCB, as to such matters as counsel to
BCB shall have reasonably requested. In rendering such opinion,
such counsel may rely upon certificates of officers of GFB as to
matters of fact.
9.5. Tax Opinion. BCB shall have received an opinion of Williams,
Caliri, Miller & Otley to the effect that the exchange of shares
contemplated hereby shall be a tax free transaction for federal
income tax purposes. Said opinion shall be reaffirmed as of the
Closing Date.
9.6. Approval of Shareholders of GFB and BCB.
(a) The Plan of Acquisition and this Acquisition Agreement shall
have been approved at a meeting of the shareholders of GFB by a
majority of the votes cast by the shareholders of GFB, as required
by N.J.S.A. 14A:10-3.
(b) The Plan of Acquisition and this Acquisition Agreement shall
have been approved at a meeting of the shareholders of BCB by 2/3
of the capital stock of BCB entitled to vote, as required by
N.J.S.A. 17:9A-359.
9.7. No Governmental or Other Proceeding or Litigation. No order
of any court or administrative agency (including, without
limitations any banking regulatory authority) shall be in effect
which restrains or prohibits any transaction contemplated hereby or
which would limit or otherwise affect in a material respect GFB's
ownership of BCB; no suit, action, or proceeding by any
governmental body or other person or entity, or investigation or
inquiry by any governmental body, shall be pending or, in the case
of a governmental body, threatened against GFB or BCB, which
challenges the validity or legality, or seeks to restrain the
consummation, of any transaction contemplated hereby or which seeks
to limit or otherwise affect GFB's ownership of BCB; and no written
advice shall have been received by GFB or BCB or their respective
counsel from any governmental body, and remain in effect, stating
that an action or proceeding will, if the exchange of shares
contemplated hereby is consummated or sought to be consummated, be
filed seeking to invalidate or restrain said transaction or limit
or otherwise affect GFB's ownership of BCB.
9.8. Approvals and Consents. All approvals and authorizations of
the public authorities referred to in Sections 2.5 and 3.5 hereof,
shall have been obtained, and no such consents or approvals shall
have imposed a condition to such consent or
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approval which in the reasonable opinion of BCB is unduly burdensome, and
all waiting periods specified by law shall have passed.
9.9. Registration Statement Effective. The Registration Statement
shall have become effective prior to the mailing of the Proxy
Statement by BCB to its stockholders, no stop order suspending the
effectiveness of the Registration Statement shall have been issued,
and no proceedings for that purpose shall have been initiated or
threatened by the SEC.
9.10. Fairness Opinions. The Board of Directors of BCB shall have
received an opinion of Capital Consultants of Princeton, Inc. in
form and substance reasonably satisfactory to said Board of
Directors, dated as of the date of the BCB Proxy Statement and
reaffirmed as of the Closing Date, that the Exchange is fair to the
stockholders of BCB. The opinion to be dated as of the date of the
BCB Proxy Statement shall be included in the BCB Proxy Statement.
9.11. Accountants' Opinion. BCB shall have received an opinion of
Arthur Andersen LLP that the acquisition of BCB by GFB will qualify
to be treated for accounting purposes as a pooling of interests.
9.12. Affiliates. BCB shall have received the letter identifying
the GFB Affiliates and the Affiliate Agreements required by Section
5.8 hereof.
ARTICLE X
CLOSING
Unless this Agreement shall have been terminated pursuant to a
provision of Article XI hereof, a closing (the "Closing") will be
held, as soon as practicable after the satisfaction or waiver of
the conditions set forth in Articles VIII and IX hereof, at the
offices of Williams, Caliri, Miller & Otley, 1428 Route 23, Wayne,
New Jersey. At the Closing, the documents referred to in Articles
VIII and IX hereof will be exchanged by the parties and,
immediately thereafter, the Plan of Acquisition will be filed by
BCB and GFB with the Department of Banking of the State of New
Jersey.
ARTICLE XI
TERMINATION; LIQUIDATED DAMAGES
11.1. Termination. This Agreement may be terminated at any time
prior to Closing:
(a) by GFB, by written notice to BCB, if (i) any representation or
warranty of BCB set forth in Article II or Article VII hereof shall
not be true and correct in all material respects, (ii) BCB shall
breach any covenant or agreement made by
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it herein or (iii) any other condition set forth in Article VIII hereof
shall not have been satisfied by December 31, 1995, provided that the failure
of such condition shall not be caused by a breach by GFB of any
covenant or agreement made by it herein; or
(b) by BCB, by written notice to GFB, if (i) any representation or
warranty of GFB set forth in Article III or Article VII hereof
shall not be true and correct in all material respects, (ii) GFB
shall breach any covenant or agreement made by it herein or (iii)
any other condition set forth in Article IX hereof shall not have
been satisfied by December 31, 1995, provided that the failure of
such condition shall not be caused by a breach by BCB of any
covenant or agreement made by it herein; or
(c) by BCB, by written notice to GFB, if BCB, without violating
any of its covenants hereunder, shall have received an unsolicited
offer to enter into an Acquisition Transaction and the Board of
Directors of BCB, after consulting with counsel, shall have
determined in the exercise of its fiduciary duties that it should
terminate this Agreement and pursue the potential Acquisition
Transaction. In the event BCB shall exercise its right of
termination under this paragraph (c), BCB shall pay to GFB a
termination fee of $500,000.00.
11.2. Liquidated Damages. In that any damages sustained by either
party to this Agreement in case of a breach would be difficult if
not impossible to determine, it is mutually agreed that in case
this Agreement is breached by either party, Five Hundred Thousand
Dollars ($500,000.00) is agreed upon as fixed and liquidated
damages and not as a penalty, which amount shall be due the
nonbreaching party from the breaching party without proof of loss
or damage.
ARTICLE XII
MISCELLANEOUS
12.1. Parties in Interest. Nothing expressed or implied in this
Agreement is intended or shall be construed to confer upon or give
to any person, firm or corporation other than the parties hereto
any rights or remedies under or by reason of this Agreement or any
transaction contemplated hereby, except as specifically provided in
this Agreement.
12.2. Entire Agreement; Amendments. This Agreement contains the
entire understanding of the parties with respect to its subject
matter. This Agreement supersedes all prior agreements and
understandings between the parties with respect to its subject
matter, except as specifically provided to the contrary herein.
This Agreement may be amended only by a written instrument duly
executed by the parties, and any condition to a party's obligations
hereunder may only be waived in writing by such party.
12.3. Headings. The article and section and headings
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contained in this Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this Agreement.
12.4. Notices. All notices, claims, certificates, requests,
demands and other communications hereunder shall be in writing and
shall be deemed to have been duly given if delivered personally or
mailed (by registered or certified mail, return receipt requested
and postage prepaid) as follows:
If to GFB:
Great Falls Bancorp
55 Union Boulevard
Totowa, New Jersey 07512
Attention: Mr. George E. Irwin, Vice President
with copy to:
Richard S. Miller, Esq.
Williams, Caliri, Miller & Otley
1428 Route 23
Wayne, New Jersey 07470
If to BCB:
Bergen Commercial Bank
Two Sears Drive
Paramus, New Jersey 07652
Attention: Mr. C. Mark Campbell, President
with copy to:
Robert Schwartz, Esq.
McCarter & English
Gateway 4
Newark, NJ 07102
or to such other address as the party to whom notice is to be given
may have furnished to the other parties in writing in accordance
herewith. If mailed as aforesaid, any such communication shall be
deemed to have been given on the third business day following that
on which the piece of mail containing such communication is posted;
provided that any communication sent by telecopy or telex and
confirmed by mail (postage prepaid) shall be deemed to have been
given at the time of transmission.
12.5. Counterparts. This Agreement may be executed in any number
of counterparts, and each such counterpart hereof shall be deemed
to be an original instrument, but all such counterparts together
shall constitute but one agreement.
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12.6. Governing Law. This Agreement shall be governed by and
construed in accordance with the substantive laws of the State of
New Jersey, without giving effect to the choice of laws provisions
thereof.
12.7. Gender and Number; Person. Any reference expressed in any
gender shall be deemed to include each of the other genders, and
the singular shall be deemed to include the plural and vice versa,
unless the context otherwise requires. The term "person" as used
in this Agreement, unless the context otherwise requires, shall
include any individual and any corporation, partnership,
association, or other entity or group.
12.8. Waivers. Any party to this Agreement may, by written notice
to the other parties hereto, waive any provision of this Agreement.
The waiver by any party hereto of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any
subsequent breach.
12.9. Assignments. This Agreement and all of the provisions
hereof shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and permitted
assigns, but neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by either
party hereto without the prior written consent of the other party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed and delivered as of the date first above written.
GREAT FALLS BANCORP
By: /s/George E. Irwin
Name: George E. Irwin
Title: Vice President
BERGEN COMMERCIAL BANK
By: /s/C. Mark Campbell
Name: C. Mark Campbell
Title: President
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EXHIBIT A
PLAN OF ACQUISITION
1. This Plan of Acquisition is to be approved and implemented
pursuant to and in accordance with N.J.S.A. 17:9A-355 through
17:9A-369, inclusive (hereinafter referred to as the "Act"). All
capitalized terms used herein which are not otherwise defined
herein shall have the same meanings herein as are ascribed to them
in the Act.
2. The name and address of the Acquiring Corporation is: Great
Falls Bancorp, 55 Union Boulevard, Totowa, New Jersey 07512.
3. The name and address of the sole Participating Bank is: Bergen
Commercial Bank, Two Sears Drive, Paramus, New Jersey 07652.
4. The names and addresses of the members of the board of directors
of the Acquiring Corporation are:
M. A. Bramante: 659 Valley Road
Wayne, New Jersey 07470
Robert J. Conklin: 3 Tice Road
Franklin Lakes, NJ 07417
William T. Ferguson: 515 Pelican Way
Delray Beach, Florida 33483
George E. Irwin: 17 Green Ridge Drive
Montville, New Jersey 07045
Joseph A. Lobosco: 56 Wigwam Avenue
North Haledon, New Jersey 07508
John L. Soldoveri: 3 Battle Ridge Trail
Totowa, New Jersey 07512
Alfred R. Urbano: 602 Mt. Lebanon Road
Wilmington, Delaware 19803
5. The name and address of the sole bank some or all of whose
shares of capital stock are owned by the Acquiring Corporation is
Great Falls Bank. The total number of shares of Great Falls Bank
which are issued and outstanding on the date hereof is 380,000; the
total number of shares of Great Falls Bank which are owned by the
Acquiring Corporation is 380,000.
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6. The following are the terms and conditions upon which the
acquisition shall occur:
a. Terms of Exchange.
Each share of Common Stock of the Participating Bank issued and
outstanding at the Effective Time (as that term is defined in
Section 7 hereof), except for Perfected Dissenting Shares (as
defined in Subsection 6(f) hereof and subject to Subsection 6(c)
hereof with respect to fractional shares) shall, at said time and
without any action on the part of any holder thereof, be exchanged
for 1.7 shares (the "Exchange Rate") of Common Stock of the
Acquiring Corporation.
b. Options.
As of the Effective Time, the Acquiring Corporation shall assume
the rights and obligations of the Participating Bank under those
stock options granted by the Participating Bank prior to the date
hereof with respect to Common Stock of the Participating Bank
pursuant to the Bergen Commercial Bank Officers Stock Option Plan
(the "Participating Bank Stock Option Plan") which are outstanding
at the Effective Time ("Assumed Options"), to the extent such
options shall not theretofore have been exercised. Pursuant to
such assumption, the holder of each Assumed Option shall be
entitled, subject to the terms of his or her stock option and
compliance with applicable law, to purchase the number of shares
(rounded to the nearest whole number) of Common Stock of the
Acquiring Corporation determined by multiplying the number of
shares covered by the Assumed Option by the Exchange Rate. Each
Assumed Option shall constitute a continuation of the corresponding
stock option issued under the Participating Bank Stock Option Plan
substituting the Acquiring Corporation for the Participating Bank
and Common Stock of the Acquiring Corporation Stock for Common
Stock of the Participating Bank in accordance with the foregoing
conversion formula, and substituting, for purposes of continuing
eligibility under the Participating Bank Stock Option Plan, a
relationship with the Acquiring Corporation or any of its
subsidiaries for a relationship with the Participating Bank,
effective as of the Effective Time. Except as provided in this
Subsection 6(b), all of the terms and provisions of each Assumed
Option shall remain the same, including, but not limited to, the
times when the Assumed Option may be exercised. As soon as
practicable after the Effective Time, the Acquiring Corporation
will send written notice of the assumption of the Assumed Options
to each holder thereof. As of the Effective
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Time, the Acquiring Corporation will have taken all corporate and other
action necessary to reserve sufficient shares of Common Stock of the
Acquiring Corporation for issuance upon exercise of the Assumed
Options. The Acquiring Corporation will prepare and file with the
Securities and Exchange Commission a registration statement on the
appropriate form relating to issuance upon exercise by the holder
thereof of the shares of Common Stock of the Acquiring Corporation
underlying such Assumed Options and will use its best efforts to
have such registration statement declared effective as soon as
practicable after the Effective Time, but in no case later than 6
months after the Effective Date.
c. No Fractional Interests.
Neither certificates nor scrip for fractional interests in shares
of Common Stock of the Acquiring Corporation will be issued in
connection with the Exchange, but in lieu thereof each holder of
Common Stock of the Participating Bank who would otherwise have
been entitled to a fraction of a share of Common Stock of the
Acquiring Corporation will be paid an amount of cash equal to such
fraction multiplied by the average of the final bid prices for
shares of Common Stock of the Acquiring Corporation on each of the
ten (10) business days preceding the Effective Time. All shares of
Common Stock of the Participating Bank held by each record holder
shall be aggregated before determining the need to pay cash in lieu
of fractional shares.
d. Directors.
Within ten (10) days following the Effective Time, the
Board of Directors of the Acquiring Corporation shall amend the By-
Laws of the Acquiring Corporation in order to increase the number
of directors of the Acquiring Corporation from 7 to 10 and,
consistent with their fiduciary duties, shall elect Anthony M.
Bruno, Jr., C. Mark Campbell and Charles J. Volpe to fill the three
new directorships. In the event that one or more of Anthony M.
Bruno, Jr., C. Mark Campbell or Charles J. Volpe is unable to take
office, the Board of Directors of the Participating Bank shall
designate a substitute, acceptable to the Acquiring Corporation, to
be elected in his place by the Board of Directors of the Acquiring
Corporation, consistent with their fiduciary duties.
e. Representations, Covenants, Conditions of Closing and other
Matters.
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This Plan of Acquisition is being entered into in connection with
and in furtherance of an Acquisition Agreement, dated August 16,
1995, between the Acquiring Corporation and the Participating Bank.
The Acquisition Agreement contains representations, covenants,
conditions of closing and agreements as to other matters pertaining
to this Plan of Acquisition. A copy of the Acquisition Agreement
is attached hereto. In the event that there is any inconsistency
between the provisions of the Acquisition Agreement and the
provisions of this Plan of Acquisition, the provisions of this Plan
of Acquisition shall govern.
f. Dissenting Shares.
Each shareholder of the Participating Bank who elects to dissent
from this Plan of Acquisition may do so by filing a written notice
of dissent with the Secretary of the Participating Bank at the
address set forth in paragraph 3 hereof, stating that he or she
intends to demand payment for his or her shares if this Plan of
Acquisition becomes effective; such notice must be filed prior to
the taking of the vote at the Special Meeting of Shareholders of
the Participating Bank which shall be held for the purpose of
voting on this Plan of Acquisition. Shares as to which a notice of
dissent has been filed pursuant to the preceding sentence are
referred to herein as "Dissenting Shares". Dissenting Shares, the
holders of which have made written demand on the Participating Bank
for the payment of the fair value of such shares within 20 days
after the mailing of notice by the Participating Bank that the Plan
of Acquisition has been approved and thereafter have submitted
their stock certificate or certificates to the Participating Bank
within 20 days after demanding payment of the fair value of such
shares, all as provided in N.J.S.A. 17:9A-360, are referred to
herein as "Perfected Dissenting Shares". Perfected Dissenting
Shares shall not be converted into Common Stock of the Acquiring
Corporation pursuant to Paragraph 6(a) hereof, but the holders
thereof shall be entitled only to such rights as are granted by
N.J.S.A. 17:9A-360 through 17:9A-369, inclusive.
The shareholders of Great Falls Bancorp shall have such rights of
dissent pursuant to the New Jersey Business Corporation Act as they
would have under that Act if they were shareholders of a surviving
corporation in a merger.
7.The date and time at which this Plan of Acquisition and the
exchange of securities provided for herein shall become effective
(the "Effective Time") shall be 11:59 p.m. on the
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last day of the calendar month during which this Plan of Acquisition is filed
with the Department of Banking of the State of New Jersey in accordance
with N.J.S.A. 17:9A-359.
IN WITNESS WHEREOF, the parties hereto have caused this Plan of
Acquisition to be duly executed this 16th day of August, 1995.
[Seal] GREAT FALLS BANCORP
Attest:
By:
Secretary President
[Seal] BERGEN COMMERCIAL BANK
By:
Secretary Chairman
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Great Falls Bancorp
55 Union Boulevard
Totowa, New Jersey 07512
August 29, 1995
Securities and Exchange Commission
Office of Registration and Reports
450 Fifth Street, N.W.
Washington, D.C. 20549
Gentlemen:
Enclosed for filing pursuant to Section 15(d) of the Securities Exchange Act of
1934 is Form 8-K, Current Report, for Great Falls Bancorp, Commission File No.
0-14294, dated August 16, 1995.
Very truly yours,
Naqi A. Naqvi
Treasurer
Enclosure
