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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) March 3, 1998
COMMUNITY FINANCIAL HOLDING CORPORATION
(Exact name of registrant as specified in its charter)
New Jersey 0-24316 52-1712224
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Ident. No.)
222 Haddon Avenue, Westmont, New Jersey 08108
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (609) 869-7900
N/A
(Former name or former address, if changed since last report.)
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Item 5. Other Events.
On March 3, 1998, Community Financial Holding Corporation
("CFHC") and HUBCO, Inc. ("HUBCO") issued the press release
attached hereto as Exhibit 99.1, which is incorporated herein by
reference. The terms of the transaction described in the press
release are qualified in their entirety by reference to the
Agreement and Plan of Merger attached hereto as Exhibit 99.2 and
incorporated by reference herein (the "Agreement").
On March 3, 1998, CFHC and HUBCO entered into the Agreement,
pursuant to which CFHC will be merged into HUBCO with HUBCO as
the surviving corporation. In the merger, each share of CFHC
common stock will be exchanged for 0.695 shares of HUBCO common
stock. Outstanding options to purchase CFHC common stock issued
under the CFHC 1994 Employee and Director Stock Option Plan will
be exchanged in the merger for HUBCO common stock in accordance
with the terms of such plan. The merger is expected to be
consummated during the third quarter of 1998, subject to the
satisfaction of certain conditions, including among others,
approval of the merger by CFHC's shareholders and receipt of
required regulatory approvals. The transaction will be accounted
for as a pooling of interests.
Concurrently with execution of the Agreement, CFHC entered
into a Stock Option Agreement with HUBCO pursuant to which CFHC
granted HUBCO an option to purchase up to 252,790 shares of CFHC
common stock at a price of $24.40 per share, exercisable upon the
occurrence of certain events. A copy of the Stock Option
Agreement is attached hereto as Exhibit 99.3.
Item 7. Financial Statements and Exhibits.
(a) Exhibits.
The following exhibits are filed herewith:
99.1 Joint press release of Community Financial Holding
Corporation and HUBCO, Inc. dated March 3, 1998.
99.2 Agreement and Plan of Merger, dated as of March 2,
1998, by and between Community Financial Holding
Corporation, Community National Bank of New
Jersey, HUBCO, Inc., and Hudson United Bank.
99.3 Stock Option Agreement, dated as of March 2, 1998,
by and between Community Financial Holding
Corporation and HUBCO, Inc.
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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.
COMMUNITY FINANCIAL HOLDING
CORPORATION
Dated: March 13, 1998
By/s/ Robert T. Pluese
Robert T. Pluese, Chairman
<PAGE>
EXHIBIT INDEX
Exhibit Number
99.1 Joint press release of Community Financial Holding
Corporation and HUBCO, Inc. dated March 3, 1998.
99.2 Agreement and Plan of Merger, dated as of March 2,
1998, by and between Community Financial Holding
Corporation, Community National Bank of New
Jersey, HUBCO, Inc. and Hudson United Bank.
99.3 Stock Option Agreement, dated as of March 2, 1998,
by and between Community Financial Holding
Corporation and HUBCO, Inc.
EXHIBIT 99.1
FOR IMMEDIATE RELEASE
March 3, 1998
HUBCO, INC. AND COMMUNITY FINANCIAL HOLDING CORPORATION
SIGN DEFINITIVE MERGER AGREEMENT
Mahwah, New Jersey, March 3, 1998 - HUBCO, Inc.
(NASDAQ:HUBC), and Community Financial Holding Corporation
(NASDAQ:CMFH), the holding company for Community National Bank of
New Jersey, today announced the signing of a definitive merger
agreement. Community Financial Holding Company is a $150 million
commercial bank holding company headquartered in Westmont, New
Jersey.
Under the terms of the agreement, each share of
Community Financial Common Stock will be exchanged for 0.695
shares of HUBCO Common Stock. The Community Financial Board of
Directors has certain rights to terminate the Agreement if the
median HUBCO price during a pricing period prior to the closing
is below $29.00, unless HUBCO agrees to increase the exchange
ratio to provide the value which would have been received based
on a $29.00 HUBCO price. Based on the closing price for HUBCO
Common Stock on March 2, 1998, the value of the acquisition is
$29.6 million or $25.28 per share of Community Financial Common
Stock. This represents a deposit premium of 10.3% and the value
of the transaction, including options, equates to 2.55 times
Community Financial's book value and 47 times 1997 earnings,
which were significantly impacted by the opening of four branches
during 1997.
In connection with the execution of the merger
agreement, Community Financial has issued an option to HUBCO
which, under certain defined circumstances, could result in the
issuance of 252,790 Community Financial Common Shares to HUBCO.
The transaction, which is expected to be treated as a tax-free
exchange to holders of Community Financial Common Stock, will be
accounted for as a pooling of interests. As part of the
transaction, Community National Bank of New Jersey will be merged
into Hudson United Bank but will be operated as the Community
National division of Hudson United Bank after the closing. The
merger is subject to approval by Federal and New Jersey bank
regulatory authorities as well as other customary conditions.
Kenneth T. Neilson, HUBCO's Chairman, President and CEO
commented, "We are pleased that Community National Bank has
chosen to join HUBCO. Hudson United Bank will bring new products
and services to Community National's customers, while the
addition of Community National will mark our first entry into
Camden, Burlington, and Gloucester counties."
HUBCO, Inc. is the holding company for Hudson United
Bank, a $1.7 billion asset bank in New Jersey, and Lafayette
American Bank, a $1.4 billion asset bank in Connecticut. In
addition, HUBCO has announced definitive agreements to acquire
Poughkeepsie Financial Corp., which owns Bank of the Hudson, and
MSB Bancorp, Inc., parent company for MSB Bank, in New York
State. Together these institutions will operate under the Bank
of the Hudson name with 32 branches in New York State. HUBCO
also recently announced the signing of an agreement to purchase
22 branches of First Union National Bank located in New Jersey,
Connecticut and New York. After closing all pending
acquisitions, HUBCO will have total assets in excess of $5
billion.
HUBCO's bank subsidiaries offer a full array of
innovative products and services to retail and commercial markets
including imaged checking accounts, 24-hour telephone banking,
loans by phone, alternative investments, insurance products,
private label credit programs, trust services, and a wide variety
of commercial loans and services including international
services, cash management services, asset based loans and SBA
loans.
EXHIBIT 99.2
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated as of March 2,
1998 ("Agreement"), is among HUBCO, Inc. ("HUBCO"), a New Jersey
corporation and registered bank holding company, Hudson United
Bank (the "Bank"), a New Jersey state-chartered commercial
banking corporation and wholly-owned subsidiary of HUBCO,
Community Financial Holding Company, a New Jersey corporation and
registered bank holding company ("CFHC"), and Community National
Bank, a federally-chartered banking association and wholly-owned
subsidiary of CFHC ("Community").
WHEREAS, the respective Board of Directors of HUBCO and
CFHC have each determined that it is in the best interests of
HUBCO and CFHC and their respective shareholders for HUBCO to
acquire CFHC by merging CFHC with and into HUBCO with HUBCO
surviving and CFHC shareholders receiving the consideration
hereinafter set forth. Immediately after the merger of CFHC into
HUBCO, Community shall be merged with and into the Bank with the
Bank surviving; and
WHEREAS, the respective Board of Directors of CFHC,
HUBCO, the Bank and Community have each duly adopted and approved
this Agreement and the Board of Directors of CFHC has directed
that it be submitted to CFHC's shareholders for approval; and
WHEREAS, as a condition for HUBCO to enter into this
Agreement, HUBCO has required that it receive an option on
certain authorized but unissued shares of CFHC Common Stock (as
hereinafter defined) and, simultaneously with the execution of
this Agreement, CFHC is issuing an option to HUBCO (the "HUBCO
Stock Option") to purchase 252,790 shares of the authorized and
unissued CFHC Common Stock subject to the terms and conditions
set forth in the Agreement governing the HUBCO Stock Option;
NOW, THEREFORE, intending to be legally bound, the
parties hereto hereby agree as follows:
ARTICLE I - THE MERGER
1.1 The Merger. Subject to the terms and conditions
of this Agreement, at the Effective Time (as hereafter defined),
CFHC shall be merged with and into HUBCO (the "Merger") in
accordance the New Jersey Business Corporation Act ("NJBCA") and
HUBCO shall be the surviving corporation (the "Surviving
Corporation").
1.2 Effect of the Merger. At the Effective Time, the
Surviving Corporation shall be considered the same business and
corporate entity as each of HUBCO and CFHC and thereupon and
thereafter, all the property, rights, privileges, powers and
franchises of each of HUBCO and CFHC shall vest in the Surviving
Corporation and the Surviving Corporation shall be subject to and
be deemed to have assumed all of the debts, liabilities,
obligations and duties of each of HUBCO and CFHC and shall have
succeeded to all of each of their relationships, as fully and to
the same extent as if such property, rights, privileges, powers,
franchises, debts, obligations, duties and relationships had been
originally acquired, incurred or entered into by the Surviving
Corporation. In addition, any reference to either of HUBCO and
CFHC in any contract or document, whether executed or taking
effect before or after the Effective Time, shall be considered a
reference to the Surviving Corporation if not inconsistent with
the other provisions of the contract or document; and any pending
action or other judicial proceeding to which either of HUBCO or
CFHC is a party, shall not be deemed to have abated or to have
discontinued by reason of the Merger, but may be prosecuted to
final judgment, order or decree in the same manner as if the
Merger had not been made; or the Surviving Corporation may be
substituted as a party to such action or proceeding, and any
judgment, order or decree may be rendered for or against it that
might have been rendered for or against either of HUBCO or CFHC
if the Merger had not occurred.
1.3 Certificate of Incorporation. As of the Effective
Time, the certificate of incorporation of HUBCO shall be the
certificate of incorporation of the Surviving Corporation until
otherwise amended as provided by law.
1.4 By-Laws. As of the Effective Time, the By-Laws of
HUBCO shall be the By-Laws of the Surviving Corporation until
otherwise amended as provided by law.
1.5 Directors and Officers. As of the Effective Time,
the directors and officers of HUBCO shall become the directors
and officers of the Surviving Corporation.
1.6 Closing Date, Closing and Effective Time. Unless
a different date, time and/or place are agreed to by the parties
hereto, the closing of the Merger (the "Closing") shall take
place at 10:00 a.m., at the offices of Pitney, Hardin, Kipp &
Szuch, 200 Campus Drive, Florham Park, New Jersey, on a date
determined by HUBCO on at least five business days notice (the
"Closing Notice") given to CFHC, which date (the "Closing Date")
shall be not less than seven nor more than 10 business days
following the receipt of all necessary regulatory and
governmental approvals and consents and the expiration of all
statutory waiting periods in respect thereof and the satisfaction
or waiver of all of the conditions to the consummation of the
Merger specified in Article VI hereof (other than the delivery of
certificates, opinions and other instruments and documents to be
delivered at the Closing). In the Closing Notice, HUBCO shall
specify the "Determination Date" for purposes of determining the
Median Pre-Closing Price (as hereinafter defined), which date
shall be not less than seven business days nor more than ten
business days prior to the Closing Date set forth in the Closing
Notice. Simultaneous with or immediately following the Closing,
HUBCO and CFHC shall cause to be filed a certificate of merger,
in form and substance satisfactory to HUBCO and CFHC, with the
Secretary of State of the State of New Jersey (the "Certificate
of Merger"). The Certificate of Merger shall specify as the
"Effective Time" of the Merger a date and time following the
Closing agreed to by HUBCO and CFHC (which date and time the
parties currently anticipate will be the close of business on the
Closing Date). In the event the parties fail to specify the date
and time in the merger certificates, the Merger shall become
effective upon (and the "Effective Time" shall be) the time of
the filing of the Certificate of Merger.
1.7 The Bank Merger. Immediately following the
Effective Time, Community shall be then merged with and into the
Bank (the "Bank Merger") in accordance with the provisions of the
New Jersey Banking Act of 1948, as amended (the "Banking Act")
and the National Bank Act. In the Bank Merger, the Bank shall be
the surviving bank (the "Surviving Bank"), except that at the
Effective Time, the business of Community shall be operated as a
division of the Surviving Bank named "Community National division
of Hudson United Bank" or such other similar name agreed to by
the parties hereto (the "New Division"). Upon the consummation
of the Bank Merger, the separate existence of Community shall
cease and the Surviving Bank shall be considered the same
business and corporate entity as each of Community and the Bank
and all of the property, rights, privileges, powers and
franchises of each of Community and the Bank shall vest in the
Surviving Bank and the Surviving Bank shall be deemed to have
assumed all of the debts, liabilities, obligations and duties of
each of Community and the Bank and shall have succeeded to all or
each of their relationships, fiduciary or otherwise, as fully and
to the same extent as if such property, rights, privileges,
powers, franchises, debts, obligations, duties and relationships
had been originally acquired, incurred or entered into by the
Surviving Bank. Upon the consummation of the Bank Merger, the
certificate of incorporation and By-Laws of the Bank shall become
the certificate of incorporation and By-Laws of the Surviving
Bank and the officers and directors of the Bank shall be the
officers and directors of the Surviving Bank, except as provided
in Section 5.20 hereof. Following the execution of this
Agreement, Community and the Bank shall execute and deliver a
merger agreement (the "Bank Merger Agreement"), both in form and
substance reasonably satisfactory to the parties hereto,
substantially as set forth in Exhibit 1.7 hereto, for delivery to
the Commissioner of the New Jersey Department of Banking and
Insurance (the "Department"), the Federal Deposit Insurance
Corporation (the "FDIC") and the Office of the Comptroller of the
Currency (the "OCC") for approval of the Bank Merger.
ARTICLE II - CONVERSION OF CFHC SHARES
2.1 Conversion of CFHC Common Stock. Each share of
common stock, par value $5.00 per share, of CFHC ("CFHC Common
Stock"), issued and outstanding immediately prior to the
Effective Time (other than Excluded Shares, as hereinafter
defined) shall, by virtue of the Merger and without any action on
the part of the holder thereof, be converted as follows:
(a) Exchange of Common Stock; Exchange Ratio;
Median Pre-Closing Price. Subject to the provisions of this
Section 2.1, each share of CFHC Common Stock issued and
outstanding immediately prior to the Effective Time (excluding
any treasury shares and shares to be canceled pursuant to
Section 2.1(d) hereof) shall be converted at the Effective Time
into the right to receive 0.695 shares (the "Exchange Ratio") of
Common Stock, no par value, of HUBCO ("HUBCO Common Stock")
subject to adjustment as provided in Section 2.1(c) and subject
to the payment of cash in lieu of fractional shares in accordance
with Section 2.2(e); provided, however, that if the Median Pre-
Closing Price of HUBCO Common Stock is less than or equal to
$29.00, CFHC shall have the right, exercisable only until
11:59 p.m. on the third business day following receipt by CFHC of
the Closing Notice, to terminate this Agreement by giving HUBCO
written notice of such termination, referring to this
Section 2.1, and this Agreement shall be terminated pursuant to
such notice, subject to Section 7.1, effective as of 11:59 p.m.
on the third business day following receipt of such notice by
HUBCO, provided further, that if HUBCO sends notice to CFHC prior
to 11:59 p.m. on the third business day following receipt of such
termination notice agreeing that the Exchange Ratio shall be
equal to the quotient obtained by dividing $20.30 by the Median
Pre-Closing Price, then the notice of termination shall be
voided.
The "Median Pre-Closing Price" shall be determined
by taking the price half-way between the Closing Prices left
after discarding the 4 lowest and 4 highest Closing Prices in the
10 consecutive trading day period which ends on (and includes)
the Determination Date. The "Closing Price" shall mean the
closing price of HUBCO Common Stock as supplied by the NASDAQ
Stock Market and published in The Wall Street Journal. A
"trading day" shall mean a day for which a Closing Price is so
supplied and published. (The NASDAQ Stock Market, or such other
national securities exchange on which HUBCO Common Stock may be
traded after the date hereof, is referred to herein as "NASDAQ").
(b) Cancellation of CFHC Certificates. After the
Effective Time, all such shares of CFHC Common Stock (other than
those canceled pursuant to Section 2.1(d)) shall no longer be
outstanding and shall automatically be canceled and retired and
shall cease to exist, and each certificate previously evidencing
any such shares (other than those canceled pursuant to
Section 2.1(d)) shall thereafter represent the right to receive
the Merger Consideration (as defined in Section 2.2(b)). The
holders of such certificates previously evidencing such shares of
CFHC Common Stock outstanding immediately prior to the Effective
Time shall cease to have any rights with respect to such shares
of CFHC Common Stock except as otherwise provided herein or by
law. Such certificates previously evidencing such shares of CFHC
Common Stock (other than those canceled pursuant to
Section 2.1(d)) shall be exchanged for certificates evidencing
shares of HUBCO Common Stock, as the case may be, issued pursuant
to this Article II, upon the surrender of such certificates in
accordance with this Article II. No fractional shares of HUBCO
Common Stock shall be issued, and, in lieu thereof, a cash
payment shall be made pursuant to Section 2.2(e).
(c) Capital Changes. If between the date hereof
and the Effective Time the outstanding shares of HUBCO Common
Stock shall have been changed into a different number of shares
or a different class, by reason of any stock dividend, stock
split, reclassification, recapitalization, merger, combination or
exchange of shares, the Exchange Ratio and the definition of
Closing Price (as set forth in Section 2.1(a)) shall be
correspondingly adjusted as appropriate to reflect such stock
dividend, stock split, reclassification, recapitalization,
merger, combination or exchange of shares.
(d) Excluded Shares. All shares of CFHC Common
Stock held by CFHC in its treasury or owned by HUBCO or by any of
HUBCO's wholly-owned subsidiaries which is a constituent party to
the Bank Merger (other than shares held as trustee or in a
fiduciary capacity and shares held as collateral on or in lieu of
a debt previously contracted) immediately prior to the Effective
Time ("Excluded Shares") shall be canceled.
2.2 Exchange of Certificates.
(a) Exchange Agent. As of the Effective Time,
HUBCO shall deposit, or shall cause to be deposited, with Hudson
United Bank, Trust Department or another bank or trust company
designated by HUBCO and reasonably acceptable to CFHC (the
"Exchange Agent"), for the benefit of the holders of shares of
CFHC Common Stock, for exchange in accordance with this
Article II, through the Exchange Agent, certificates evidencing
shares of HUBCO Common Stock and cash in such amount such that
the Exchange Agent possesses such number of shares of HUBCO
Common Stock and such amount of cash as are required to provide
all of the consideration required to be exchanged by HUBCO
pursuant to the provisions of this Article II (such certificates
for shares of HUBCO Common Stock, together with any dividends or
distributions with respect thereto, and cash being hereinafter
referred to as the "Exchange Fund"). The Exchange Agent shall,
pursuant to irrevocable instructions, deliver the HUBCO Common
Stock and cash out of the Exchange Fund in accordance with
Section 2.1. Except as contemplated by Section 2.2(f) hereof,
the Exchange Fund shall not be used for any other purpose.
(b) Exchange Procedures. As soon as reasonably
practicable either before or after the Effective Time, but in any
event no later than 15 business days after the Effective Time,
HUBCO will instruct the Exchange Agent to mail to each holder of
record of a certificate or certificates which immediately prior
to the Effective Time evidenced outstanding shares of CFHC Common
Stock (the "Certificates"), (i) a letter of transmittal (the form
and substance of which is reasonably agreed to by HUBCO and CFHC
prior to the Effective Time and which shall specify that delivery
shall be effected, and risk of loss and title to the Certificates
shall pass, only upon proper delivery of the Certificates to the
Exchange Agent and which shall have such other provisions as
HUBCO may reasonably specify) and (ii) instructions for effecting
the surrender of the Certificates in exchange for certificates
evidencing shares of HUBCO Common Stock and cash in lieu of
fractional shares. Upon surrender of a Certificate for
cancellation to the Exchange Agent together with such letter of
transmittal, duly executed, and such other customary documents as
may be required pursuant to such instructions, the holder of such
Certificate shall be entitled to receive in exchange therefor
(x) certificates evidencing that number of whole shares of HUBCO
Common Stock which such holder has the right to receive in
respect of the shares of CFHC Common Stock formerly evidenced by
such Certificate in accordance with Section 2.1 and (y) cash in
lieu of fractional shares of HUBCO Common Stock to which such
holder may be entitled pursuant to Section 2.2(e) (the shares of
HUBCO Common Stock and cash described in clauses (x) and (y)
being collectively referred to as the "Merger Consideration") and
the Certificates so surrendered shall forthwith be canceled. In
the event of a transfer of ownership of shares of CFHC Common
Stock which is not registered in the transfer records of CFHC, a
certificate evidencing the proper number of shares of HUBCO
Common Stock and/or cash may be issued and/or paid in accordance
with this Article II to a transferee if the Certificate
evidencing such shares of CFHC Common Stock is presented to the
Exchange Agent, accompanied by all documents required to evidence
and effect such transfer and by evidence that any applicable
stock transfer taxes have been paid. Until surrendered as
contemplated by this Section 2.2, each Certificate shall be
deemed at any time after the Effective Time to evidence only the
right to receive upon such surrender the Merger Consideration.
(c) Distributions with Respect to Unexchanged
Shares of HUBCO Common Stock. No dividends or other
distributions declared or made after the Effective Time with
respect to HUBCO Common Stock with a record date after the
Effective Time shall be paid to the holder of any unsurrendered
Certificate with respect to the shares of HUBCO Common Stock
evidenced thereby, and no other part of the Merger Consideration
shall be paid to any such holder, until the holder of such
Certificate shall surrender such Certificate (or a suitable
affidavit of loss and customary bond). Subject to the effect of
applicable laws, following surrender of any such Certificate,
there shall be paid to the holder of the certificates evidencing
shares of HUBCO Common Stock issued in exchange therefor, without
interest, (i) promptly, the amount of any cash payable with
respect to a fractional share of HUBCO Common Stock to which such
holder may have been entitled pursuant to Section 2.2(e) and the
amount of dividends or other distributions with a record date
after the Effective Time theretofore paid with respect to such
shares of HUBCO Common Stock, and (ii) at the appropriate payment
date, the amount of dividends or other distributions, with a
record date after the Effective Time but prior to surrender and a
payment date occurring after surrender, payable with respect to
such shares of HUBCO Common Stock. No interest shall be paid on
the Merger Consideration.
(d) No Further Rights in CFHC Common Stock. All
shares of HUBCO Common Stock issued and cash paid upon conversion
of the shares of CFHC Common Stock in accordance with the terms
hereof shall be deemed to have been issued or paid in full
satisfaction of all rights pertaining to such shares of CFHC
Common Stock.
(e) No Fractional Shares. No certificates or
scrip evidencing fractional shares of HUBCO Common Stock shall be
issued upon the surrender for exchange of Certificates and such
fractional share interests will not entitle the owner thereof to
vote or to any rights of a shareholder of HUBCO. Cash shall be
paid in lieu of fractional shares of HUBCO Common Stock, based
upon the Median Pre-Closing Price per whole share of HUBCO Common
Stock.
(f) Termination of Exchange Fund. Any portion of
the Exchange Fund which remains undistributed to the holders of
CFHC Common Stock for two years after the Effective Time shall be
delivered to HUBCO, upon demand, and any holders of CFHC Common
Stock who have not theretofore complied with this Article II
shall thereafter look only to HUBCO for the Merger Consideration,
dividends and distributions to which they are entitled.
(g) No Liability. Neither HUBCO, the Bank nor
the Exchange Agent shall be liable to any holder of shares of
CFHC Common Stock for any such shares of HUBCO Common Stock or
cash (or dividends or distributions with respect thereto)
delivered to a public official pursuant to any applicable
abandoned property, escheat or similar law.
(h) Withholding Rights. HUBCO shall be entitled
to deduct and withhold, or cause the Exchange Agent to deduct and
withhold, from funds provided by the holder or from the
consideration otherwise payable pursuant to this Agreement to any
holder of shares of CFHC Common Stock the minimum amounts (if
any) that HUBCO is required to deduct and withhold with respect
to the making of such payment under the Code (as defined in
Section 3.8), or any provision of state, local or foreign tax
law. To the extent that amounts are so withheld by HUBCO, such
withheld amounts shall be treated for all purposes of this
Agreement as having been paid to the holder of CFHC Common Stock
in respect of which such deduction and withholding was made by
HUBCO.
2.3 Stock Transfer Books. At the Effective Time, the
stock transfer books of CFHC shall be closed and there shall be
no further registration of transfers of shares of CFHC Common
Stock thereafter on the records of CFHC. On or after the
Effective Time, any Certificates presented to the Exchange Agent
or HUBCO for transfer shall be converted into the Merger
Consideration.
2.4 CFHC Stock Options and Warrants. The Stock
Options (as defined in Section 3.2) described in the CFHC
Disclosure Schedule are issued and outstanding pursuant to the
CFHC 1994 Employee and Director Stock Option Plan (the "CFHC
Stock Option Plan") and the agreements pursuant to which such
Stock Options were granted (each, an "Option Grant Agreement").
HUBCO acknowledges and agrees to honor the provisions of the CFHC
Stock Option Plan and the Option Grant Agreement, including those
relating to vesting and conversion in connection with a change in
control of CFHC. Certain warrants to acquire CFHC Common Stock
are issued and outstanding pursuant to the PMG Warrants (as
defined in Section 3.2 hereof). Each PMG Warrant which, as of
the Effective Time, is outstanding shall be converted into a
warrant to purchase HUBCO Common Stock as follows: (i) the right
to purchase shares of CFHC Common Stock pursuant to the PMG
Warrant shall be converted into the right to purchase that same
number of shares of HUBCO Common Stock multiplied by the Exchange
Ratio, (ii) the option exercise price per share of HUBCO Common
Stock shall be the previous PMG Warrant exercise price per share
of the CFHC Common Stock divided by the Exchange Ratio, and
(iii) in all other material respects the new warrant shall be
subject to the same terms and conditions as governed the PMG
Warrant on which it was based, including the length of time
within which the warrant may be exercised.
ARTICLE III - REPRESENTATIONS AND WARRANTIES OF CFHC
References herein to "CFHC Disclosure Schedules" shall
mean all of the disclosure schedules required by this
Article III, dated as of the date hereof and referenced to the
specific sections and subsections of Article III of this
Agreement, which have been delivered on the date hereof by CFHC
to HUBCO. CFHC hereby represents and warrants to HUBCO as
follows:
3.1 Corporate Organization.
(a) CFHC is a corporation duly organized, validly
existing and in good standing under the laws of the State of New
Jersey. CFHC has the corporate power and authority to own or
lease all of its properties and assets and to carry on its
business as it is now being conducted, and is duly licensed or
qualified to do business and is in good standing in each
jurisdiction in which the nature of the business conducted by it
or the character or location of the properties and assets owned
or leased by it makes such licensing or qualification necessary,
except where the failure to be so licensed, qualified or in good
standing would not have a material adverse effect on the
business, operations, assets or financial condition of CFHC and
the CFHC Subsidiaries (as defined below), taken as a whole. CFHC
is registered as a bank holding company under the Bank Holding
Company Act of 1956, as amended (the "BHCA").
(b) Each CFHC Subsidiary and its jurisdiction of
incorporation is listed in the CFHC Disclosure Schedule. For the
purpose of this Agreement, the term "CFHC Subsidiary" means any
corporation, partnership, joint venture or other legal entity in
which CFHC, directly or indirectly, owns at least a 50% stock or
other equity interest or for which CFHC, directly or indirectly,
acts as a general partner, provided that to the extent that any
representation or warranty set forth herein covers a period of
time prior to the date of this Agreement, the term "CFHC
Subsidiary" shall include any entity which was a CFHC Subsidiary
at any time during such period. Community is a federally-
chartered commercial banking association duly organized and
validly existing in stock form and in good standing under the
laws of the United States of America. All eligible accounts of
depositors issued by Community are insured by the Bank Insurance
Fund of the FDIC (the "BIF") to the fullest extent permitted by
law. Each CFHC Subsidiary has the corporate power and authority
to own or lease all of its properties and assets and to carry on
its business as it is now being conducted and is duly licensed or
qualified to do business and is in good standing in each
jurisdiction in which the nature of the business conducted by it
or the character or location of the properties and assets owned
or leased by it makes such licensing or qualification necessary,
except where the failure to be so licensed, qualified or in good
standing would not have a material adverse effect on the
business, operations, assets or financial condition of CFHC and
the CFHC Subsidiaries, taken as a whole.
(c) The CFHC Disclosure Schedule sets forth true
and complete copies of the Certificate of Incorporation and By-
Laws, as in effect on the date hereof, of CFHC and each CFHC
Subsidiary. Except as set forth in Disclosure Schedule 3.1(b),
Community and CFHC do not own or control, directly or indirectly,
any equity interest in any corporation, company, association,
partnership, joint venture or other entity.
3.2 Capitalization. The authorized capital stock of
CFHC consists of 3,200,000 shares of CFHC Common Stock and
200,000 shares of CFHC Preferred Stock, par value $5.00 per
share. As of December 31, 1997, there were 1,027,712 shares of
CFHC Common Stock issued and outstanding and no shares of CFHC
Preferred Stock issued and outstanding. As of December 31, 1997,
there were 276,077 shares of CFHC Common Stock issuable upon
exercise of outstanding stock options and 27,349 shares of CFHC
Common Stock issuable upon the exercise of outstanding warrants
held by Pennsylvania Merchant Group Ltd. (the "PMG Warrants").
The CFHC Disclosure Schedule sets forth (i) all options which may
be exercised for issuance of CFHC Common Stock (collectively, the
"Stock Options") and the terms upon which the options may be
exercised, and (ii) true and complete copies of each plan and a
specimen of each form of agreement pursuant to which any
outstanding Stock Option was granted, including a list of each
outstanding Stock Option issued pursuant thereto. All Stock
Options will be fully vested on the Closing Date, in each case in
accordance with the terms of the CFHC Stock Option Plan and
Option Grant Agreements pursuant to which such Stock Options were
granted. All issued and outstanding shares of CFHC Common Stock,
and all issued and outstanding shares of capital stock of each
CFHC Subsidiary, have been duly authorized and validly issued,
are fully paid, nonassessable and free of preemptive rights and
are free and clear of any liens, encumbrances, charges,
restrictions or rights of third parties imposed by CFHC or any
CFHC Subsidiary. Except for the Stock Options and the HUBCO
Stock Option and the PMG Warrants, neither CFHC nor Community has
granted nor is bound by any outstanding subscriptions, options,
warrants, calls, commitments or agreements of any character
calling for the transfer, purchase, subscription or issuance of
any shares of capital stock of CFHC or Community or any
securities representing the right to purchase, subscribe or
otherwise receive any shares of such capital stock or any
securities convertible into any such shares, and there are no
agreements or understandings with respect to voting of any such
shares.
3.3 Authority; No Violation.
(a) Subject to the approval of this Agreement and
the transactions contemplated hereby by all applicable regulatory
authorities and by the shareholders of CFHC, and except as set
forth in the CFHC Disclosure Schedule, CFHC and Community have
the full corporate power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated
hereby in accordance with the terms hereof. The execution and
delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly
approved by the directors of CFHC and Community in accordance
with their respective Certificate of Incorporation and By-Laws
and applicable laws and regulations. Except for such approvals,
no other corporate proceedings on the part of CFHC or Community
are necessary to consummate the transactions so contemplated.
This Agreement has been duly and validly executed and delivered
by CFHC and Community, and constitutes valid and binding
obligations of CFHC and Community, enforceable against CFHC and
Community in accordance with its terms, except to the extent that
enforcement may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium, conservatorship, receivership or
other similar laws now or hereafter in effect relating to or
affecting the enforcement of creditors' rights generally or the
rights of creditors of national banks or their holding companies,
(ii) general equitable principles, and (iii) laws relating to the
safety and soundness of insured depository institutions and
except that no representation is made as to the effect or
availability of equitable remedies or injunctive relief.
(b) Neither the execution and delivery of this
Agreement by CFHC or Community, nor the consummation by CFHC or
Community of the transactions contemplated hereby in accordance
with the terms hereof, or compliance by CFHC or Community with
any of the terms or provisions hereof, will (i) upon the approval
thereof by the CFHC shareholders, violate any provision of CFHC's
or Community's Certificate of Incorporation or By-Laws,
(ii) assuming that the consents and approvals set forth below are
duly obtained, violate any statute, code, ordinance, rule,
regulation, judgment, order, writ, decree or injunction
applicable to CFHC, Community or any of their respective
properties or assets, or (iii) except as set forth in the CFHC
Disclosure Schedule, violate, conflict with, result in a breach
of any provisions of, constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a
default) under, result in the termination of, accelerate the
performance required by, or result in the creation of any lien,
security interest, charge or other encumbrance upon any of the
respective properties or assets of CFHC or Community under, any
of the terms, conditions or provisions of any note, bond,
mortgage, indenture, deed of trust, license, lease, agreement or
other instrument or obligation to which CFHC or Community is a
party, or by which they or any of their respective properties or
assets may be bound or affected except, with respect to (ii) and
(iii) above, such as individually or in the aggregate will not
have a material adverse effect on the business, operations,
assets or financial condition of CFHC and the CFHC Subsidiaries,
taken as a whole, and which will not prevent or delay the
consummation of the transactions contemplated hereby. Except for
consents and approvals of or filings or registrations with or
notices to the Board of Governors of the Federal Reserve System
(the "FRB"), the FDIC, the OCC, the Department, the New Jersey
Department of Environmental Protection (the "DEP"), the SEC,
other applicable government authorities, and the shareholders of
CFHC, no consents or approvals of or filings or registrations
with or notices to any third party or any public body or
authority are necessary on behalf of CFHC or Community in
connection with (x) the execution and delivery by CFHC of this
Agreement and (y) the consummation by CFHC of the Merger, and the
consummation by CFHC and Community of the other transactions
contemplated hereby. To the best of CFHC's knowledge, no fact or
condition exists which CFHC has reason to believe will prevent it
and Community from obtaining the aforementioned consents and
approvals.
3.4 Financial Statements.
(a) The CFHC Disclosure Schedule sets forth
copies of the consolidated statements of financial condition of
CFHC as of December 31, 1995 and 1996, and the related
consolidated statements of income, changes in shareholders'
equity and of cash flows for the periods ended December 31, in
each of the two fiscal years 1995 through 1996, in each case
accompanied by the audit report of KPMG Peat Marwick independent
public accountants with respect to CFHC ("Peat Marwick"), and the
unaudited consolidated statement of condition of CFHC as of
September 30, 1997 and the related unaudited consolidated
statements of income and cash flows for the nine months ended
September 30, 1997 and 1996, as reported in CFHC's Quarterly
Report on Form 10-Q, filed with the SEC under the Securities
Exchange Act of 1934, as amended ("1934 Act") (collectively, the
"CFHC Financial Statements"). The CFHC Financial Statements
(including the related notes) have been prepared in accordance
with generally accepted accounting principles ("GAAP")
consistently applied during the periods involved (except as may
be indicated therein or in the notes thereto), and fairly present
the consolidated financial condition of CFHC as of the respective
dates set forth therein, and the related consolidated statements
of income, changes in shareholders' equity and cash flows fairly
present the results of the consolidated operations, changes in
shareholders' equity and cash flows of CFHC for the respective
periods set forth therein.
(b) The books and records of CFHC and each CFHC
Subsidiary are being maintained in material compliance with
applicable legal and accounting requirements and reflect only
actual transactions.
(c) Except as and to the extent reflected,
disclosed or reserved against in the CFHC Financial Statements
(including the notes thereto), as of September 30, 1997, neither
CFHC nor any CFHC Subsidiary had any liabilities, whether
absolute, accrued, contingent or otherwise, material to the
business, operations, assets or financial condition of CFHC and
any CFHC Subsidiary, taken as a whole which were required by GAAP
(consistently applied) to be disclosed in CFHC's consolidated
statement of condition as of September 30, 1997 or the notes
thereto. Since September 30, 1997, neither CFHC nor any CFHC
Subsidiary has incurred any liabilities except in the ordinary
course of business and consistent with prudent business practice,
except as related to the transactions contemplated by this
Agreement or except as set forth in the CFHC Disclosure Schedule.
3.5 Broker's and Other Fees. Except for Berwind
Financial, L.P. ("Berwind"), neither CFHC, any CFHC Subsidiary
nor any of their directors or officers has employed any broker or
finder or incurred any liability for any broker's or finder's
fees or commissions in connection with any of the transactions
contemplated by this Agreement. The agreement with Berwind is
set forth in the CFHC Disclosure Schedule. Other than pursuant
to the agreement with Berwind and an agreement with Law Offices
of Stevens & Lee, a Professional Corporation, pursuant to which
CFHC will pay a flat fee of $75,000 plus reasonable out-of-pocket
expenses for legal representation in connection with this
Agreement and the transactions contemplated hereunder, there are
no fees (other than time charges billed at usual and customary
rates) payable to any consultants, including lawyers and
accountants, in connection with this transaction or which would
be triggered by consummation of this transaction or the
termination of the services of such consultants by CFHC or any
CFHC Subsidiary.
3.6 Absence of Certain Changes or Events.
(a) Except as disclosed in the CFHC Disclosure
Schedule, there has not been any material adverse change in the
business, operations, assets or financial condition of CFHC and
any CFHC Subsidiary, taken as a whole, since December 31, 1997
and to the best of CFHC's knowledge, no fact or condition exists
which CFHC believes will cause such a material adverse change in
the future.
(b) Except as set forth in the CFHC Disclosure
Schedule, neither CFHC nor any CFHC Subsidiary has taken or
permitted any of the actions set forth in Section 5.2 hereof
between December 31, 1997 and the date hereof and, except for
execution of this Agreement, and the other documents contemplated
hereby, CFHC and each CFHC Subsidiary has conducted their
respective businesses only in the ordinary course, consistent
with past practice.
3.7 Legal Proceedings. Except as disclosed in
the CFHC Disclosure Schedule, and except for ordinary routine
litigation incidental to the business of CFHC and the CFHC
Subsidiaries, neither CFHC nor any CFHC Subsidiary is a party to
any, and there are no pending or, to the best of CFHC's
knowledge, threatened legal, administrative, arbitral or other
proceedings, claims, actions or governmental investigations of
any nature against CFHC or any CFHC Subsidiary which, if decided
adversely to CFHC or any CFHC Subsidiary, are reasonably likely
to have a material adverse effect on the business, operations,
assets or financial condition of CFHC and the CFHC Subsidiaries
taken as a whole. Except as disclosed in the CFHC Disclosure
Schedule, neither CFHC nor any CFHC Subsidiary is a party to any
order, judgment or decree entered in any lawsuit or proceeding
which is material to CFHC or such CFHC Subsidiary.
3.8 Taxes and Tax Returns.
(a) Except as set forth on the CFHC Disclosure
Schedule, CFHC and each CFHC Subsidiary has duly filed (and until
the Effective Time will so file) all returns, declarations,
reports, information returns and statements ("Returns") required
to be filed by it on or before the Effective Time in respect of
any federal, state and local taxes (including withholding taxes,
penalties or other payments required) and has duly paid (and
until the Effective Time will so pay) all such taxes due and
payable, other than taxes or other charges which are being
contested in good faith (and disclosed to HUBCO in writing) or
against which reserves have been established. CFHC and each CFHC
Subsidiary has established (and until the Effective Time will
establish) on their books and records reserves that are adequate
for the payment of all federal, state and local taxes not yet due
and payable, but are incurred in respect of CFHC or any CFHC
Subsidiary through such date. None of the federal or state
income tax returns of CFHC or any CFHC Subsidiary have been
examined by the Internal Revenue Service (the "IRS") or the New
Jersey Division of Taxation within the past six years. To the
best knowledge of CFHC, there are no audits or other
administrative or court proceedings presently pending nor any
other disputes pending with respect to, or claims asserted for,
taxes or assessments upon CFHC or any CFHC Subsidiary, nor has
CFHC or any CFHC Subsidiary given any currently outstanding
waivers or comparable consents regarding the application of the
statute of limitations with respect to any taxes or Returns.
(b) Neither CFHC nor any CFHC Subsidiary (i) has
requested any extension of time within which to file any Return
which Return has not since been filed, (ii) is a party to any
agreement providing for the allocation or sharing of taxes,
(iii) is required to include in income any adjustment pursuant to
Section 481(a) of the Internal Revenue Code of 1986, as amended
(the "Code"), by reason of a voluntary change in accounting
method initiated by CFHC or any CFHC Subsidiary (nor does CFHC
have any knowledge that the IRS has proposed any such adjustment
or change of accounting method), or (iv) has filed a consent
pursuant to Section 341(f) of the Code or agreed to have
Section 341(f)(2) of the Code apply.
3.9 Employee Benefit Plans.
(a) Except as set forth on the CFHC Disclosure
Schedule, neither CFHC nor any CFHC Subsidiary maintains or
contributes to any "employee pension benefit plan" (the "CFHC
Pension Plans") as such term is defined in Section 3(2)(A) of the
Employee Retirement Income Security Act of 1974, as amended
("ERISA"), "employee welfare benefit plan" (the "CFHC Welfare
Plans") as such terms is defined in Section 3(1) of ERISA, stock
option plan, stock purchase plan, deferred compensation plan,
severance plan, bonus plan, employment agreement, director
retirement program or other similar plan, program or arrangement.
Neither CFHC nor any CFHC Subsidiary has, since September 2,
1974, contributed to any "Multiemployer Plan," as such term is
defined in Section 3(37) of ERISA.
(b) CFHC has delivered to HUBCO in the CFHC
Disclosure Schedules (or previously made available to HUBCO) a
complete and accurate copy of each of the following with respect
to each of the CFHC Pension Plans and CFHC Welfare Plans, if any:
(i) plan document, summary plan description, and summary of
material modifications (if not available, a detailed description
of the foregoing); (ii) trust agreement or insurance contract, if
any; (iii) most recent IRS determination letter, if any;
(iv) most recent actuarial report, if any; and (v) most recent
annual report on Form 5500.
(c) The present value of all accrued benefits,
both vested and non-vested, under each of the CFHC Pension Plans
subject to Title IV of ERISA, based upon the actuarial
assumptions used for funding purposes in the most recent
actuarial valuation prepared by such CFHC Pension Plan's
actuary, did not exceed the then current value of the assets of
such plans allocable to such accrued benefits. To the best of
CFHC's knowledge, the actuarial assumptions then utilized for
such plans were reasonable and appropriate as of the last
valuation date and reflect then current market conditions.
(d) During the last six years, the Pension
Benefit Guaranty Corporation ("PBGC") has not asserted any claim
for liability against CFHC or any CFHC Subsidiary which has not
been paid in full.
(e) All premiums (and interest charges and
penalties for late payment, if applicable) due to the PBGC with
respect to each CFHC Pension Plan have been paid. All
contributions required to be made to each CFHC Pension Plan
under the terms thereof, ERISA or other applicable law have been
timely made, and all amounts properly accrued to date as
liabilities of CFHC which have not been paid have been properly
recorded on the books of CFHC .
(f) Each of the CFHC Pension Plans and each of
the CFHC Welfare Plans has been operated in compliance in all
material respects with the provisions of ERISA, the Code, all
regulations, rulings and announcements promulgated or issued
thereunder, and all other applicable governmental laws and
regulations. CFHC is not aware of any fact or circumstance which
would disqualify any plan that could not be retroactively
corrected (in accordance with the procedures of the IRS).
(g) To the best knowledge of CFHC, no non-exempt
prohibited transaction, within the meaning of Section 4975 of the
Code or Section 406 of ERISA, has occurred with respect to any
CFHC Welfare Plan or CFHC Pension Plan that would result in any
material tax or penalty for CFHC or any CFHC Subsidiary.
(h) Except as disclosed in the CFHC Disclosure
Schedule, no CFHC Pension Plan or any trust created thereunder
has been terminated, nor have there been any "reportable events"
(notice of which has not been waived by the PBGC), within the
meaning of Section 4034(b) of ERISA, with respect to any CFHC
Pension Plan.
(i) No "accumulated funding deficiency," within
the meaning of Section 412 of the Code, has been incurred with
respect to any CFHC Pension Plan.
(j) There are no material pending, or, to the
best knowledge of CFHC, material threatened or anticipated claims
(other than routine claims for benefits) by, on behalf of, or
against any of the CFHC Pension Plans or the CFHC Welfare Plans,
any trusts created thereunder or any other plan or arrangement
identified in the CFHC Disclosure Schedule.
(k) Except as disclosed in the CFHC Disclosure
Schedule, no CFHC Pension Plan or CFHC Welfare Plan provides
medical or death benefits (whether or not insured) beyond an
employee's retirement or other termination of service, other than
(i) coverage mandated by law or pursuant to conversion or
continuation rights set out in such Plan or an insurance policy
providing benefits thereunder, or (ii) death benefits under any
CFHC Pension Plan.
(l) Except with respect to customary health, life
and disability benefits, there are no unfunded benefit
obligations which are not accounted for by reserves shown on the
CFHC Financial Statements and established under GAAP or otherwise
noted on such Financial Statements.
(m) With respect to each CFHC Pension Plan and
CFHC Welfare Plan that is funded wholly or partially through an
insurance policy, there will be no liability of CFHC or any CFHC
Subsidiary as of the Effective Time under any such insurance
policy or ancillary agreement with respect to such insurance
policy in the nature of a retroactive rate adjustment, loss
sharing arrangement or other actual or contingent liability
arising wholly or partially out of events occurring prior to the
Effective Time.
(n) Except (i) for payments and other benefits
due pursuant to the employment or severance agreements included
within the CFHC Disclosure Schedule, and (ii) as set forth in
Section 3.9(n) of the CFHC Disclosure Schedule, or as expressly
agreed to by HUBCO in writing either pursuant to this Agreement
or otherwise, the consummation of the transactions contemplated
by this Agreement will not (x) entitle any current or former
employee of CFHC or any CFHC Subsidiary to severance pay,
unemployment compensation or any similar payment, or
(y) accelerate the time of payment or vesting, or increase the
amount of any compensation or benefits due to any current or
former employee under any CFHC Pension Plan or CFHC Welfare Plan.
(o) Except for the CFHC Pension Plans and the
CFHC Welfare Plans, and except as set forth on the CFHC
Disclosure Schedule, CFHC has no deferred compensation
agreements, understandings or obligations for payments or
benefits to any current or former director, officer or employee
of CFHC or any CFHC Subsidiary or any predecessor of any thereof.
The CFHC Disclosure Schedule sets forth (or lists, if previously
delivered to HUBCO): (i) true and complete copies of the deferred
compensation agreements, understandings or obligations with
respect to each such current or former director, officer or
employee, and (ii) the most recent actuarial or other calculation
of the present value of such payments or benefits.
(p) Except as set forth in the CFHC Disclosure
Schedule, CFHC does not maintain or otherwise pay for life
insurance policies (other than group term life policies on
employees) with respect to any director, officer or employee.
The CFHC Disclosure Schedule lists each such insurance policy and
any agreement with a party other than the insurer with respect to
the payment, funding or assignment of such policy. To the best
of CFHC 's knowledge, neither CFHC nor any CFHC Pension Plan or
CFHC Welfare Plan owns any individual or group insurance policies
issued by an insurer which has been found to be insolvent or is
in rehabilitation pursuant to a state proceeding.
(q) Except as set forth in the CFHC Disclosure
Schedule, CFHC does not maintain any retirement plan or retiree
medical plan or arrangement for directors. The CFHC Disclosure
Schedule sets forth the complete documentation and actuarial
evaluation of any such plan.
3.10 Reports.
(a) The CFHC Disclosure Schedule lists, and as to
item (i) below CFHC has previously delivered to HUBCO a complete
copy of, each (i) final registration statement, prospectus,
annual, quarterly or special report and definitive proxy
statement filed by CFHC since January 1, 1994 pursuant to the
Securities Act of 1933, as amended ("1933 Act"), or the 1934 Act
and (ii) communication (other than general advertising materials
and press releases) mailed by CFHC to its shareholders as a class
since January 1, 1994.
(b) Since January 1, 1994, (i) CFHC has filed all
reports that it was required to file with the SEC under the 1934
Act, and (ii) CFHC and Community each has duly filed all material
forms, reports and documents which they were required to file
with each agency charged with regulating any aspect of their
business, in each case in form which was correct in all material
respects, and, subject to permission from such regulatory
authorities, CFHC promptly will deliver or make available to
HUBCO accurate and complete copies of such reports. As of their
respective dates, each such form, report, or document referred to
in either of clauses (i) or (ii) above, and each final
registration statement, prospectus, annual, quarterly or special
report, definitive proxy statement or communication referred to
in either of clauses (i) or (ii) of paragraph (b) above, complied
in all material respects with all applicable statutes, rules and
regulations and did not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements made
therein, in light of the circumstances under which they were
made, not misleading; provided that information contained in any
such document as of a later date shall be deemed to modify
information as of an earlier date. The CFHC Disclosure Schedule
lists the dates of all examinations of CFHC or Community
conducted by either the FRB, the OCC or the FDIC since January 1,
1995 and the dates of any responses thereto submitted by CFHC or
Community.
3.11 CFHC and Community Information. The information
relating to CFHC and Community, this Agreement, and the
transactions contemplated hereby (except for information relating
solely to HUBCO) to be contained in the Proxy Statement-
Prospectus (as defined in Section 5.6(a) hereof) to be delivered
to shareholders of CFHC in connection with the solicitation of
their approval of the Merger, as of the date the Proxy Statement-
Prospectus is mailed to shareholders of CFHC, and up to and
including the date of the meeting of shareholders to which such
Proxy Statement-Prospectus relates, will not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading.
3.12 Compliance with Applicable Law. Except as set
forth in the CFHC Disclosure Schedule, CFHC and each CFHC
Subsidiary holds all licenses, franchises, permits and
authorizations necessary for the lawful conduct of its business
and has complied with and is not in default in any respect under
any applicable law, statute, order, rule, regulation, policy
and/or guideline of any federal, state or local governmental
authority relating to CFHC or such CFHC Subsidiary (including,
without limitation, consumer, community and fair lending laws)
(other than where the failure to have a license, franchise,
permit or authorization or where such default or noncompliance
will not result in a material adverse effect on the business,
operations, assets or financial condition of CFHC and the CFHC
Subsidiaries taken as a whole) and CFHC has not received notice
of violation of, and does not know of any violations of, any of
the above.
3.13 Certain Contracts.
(a) Except for plans referenced in Section 3.9
and disclosed in the CFHC Disclosure Schedule, (i) neither CFHC
nor any CFHC Subsidiary is a party to or bound by any written
contract or any understanding with respect to the employment of
any officers, employees, directors or consultants, and (ii) the
consummation of the transactions contemplated by this Agreement
will not (either alone or upon the occurrence of any additional
acts or events) result in any payment (whether of severance pay
or otherwise) becoming due from CFHC or any CFHC Subsidiary to
any officer, employee, director or consultant thereof. The CFHC
Disclosure Schedule sets forth true and correct copies of all
severance or employment agreements with officers, directors,
employees, agents or consultants to which CFHC or any CFHC
Subsidiary is a party.
(b) Except as disclosed in the CFHC Disclosure
Schedule or disclosed as an Exhibit to CFHC's Annual Report on
Form 10-K for the year end December 31, 1996 and except for loan
commitments, loan agreements and loan instruments entered into or
issued by Community in the ordinary course of business, (i) as of
the date of this Agreement, neither CFHC nor any CFHC Subsidiary
is a party to or bound by any commitment, agreement or other
instrument which is material to the business, operations, assets
or financial condition of CFHC and the CFHC Subsidiaries taken as
a whole, (ii) no commitment, agreement or other instrument to
which CFHC or any CFHC Subsidiary is a party or by which either
of them is bound limits the freedom of CFHC or any CFHC
Subsidiary to compete in any line of business or with any person,
and (iii) neither CFHC nor any CFHC Subsidiary is a party to any
collective bargaining agreement.
(c) Except as disclosed in the CFHC Disclosure
Schedule, neither CFHC nor any CFHC Subsidiary or, to the best
knowledge of CFHC, any other party thereto, is in default in any
material respect under any material lease, contract, mortgage,
promissory note, deed of trust, loan or other commitment (except
those under which Community is or will be the creditor) or
arrangement, except for defaults which individually or in the
aggregate would not have a material adverse effect on the
business, operations, assets or financial condition of CFHC and
the CFHC Subsidiaries, taken as a whole.
3.14 Properties and Insurance.
(a) Except as set forth in the CFHC Disclosure
Schedule, CFHC or a CFHC Subsidiary has good and, as to owned
real property, marketable title to all material assets and
properties, whether real or personal, tangible or intangible,
reflected in CFHC's consolidated balance sheet as of
September 30, 1997, or owned and acquired subsequent thereto
(except to the extent that such assets and properties have been
disposed of for fair value in the ordinary course of business
since September 30, 1997), subject to no encumbrances, liens,
mortgages, security interests or pledges, except (i) those items
that secure liabilities that are reflected in said balance sheet
or the notes thereto or that secure liabilities incurred in the
ordinary course of business after the date of such balance sheet,
(ii) statutory liens for amounts not yet delinquent or which are
being contested in good faith, (iii) such encumbrances, liens,
mortgages, security interests, pledges and title imperfections
that are not in the aggregate material to the business,
operations, assets, and financial condition of CFHC and the CFHC
Subsidiaries taken as a whole and (iv) with respect to owned real
property, title imperfections noted in title reports delivered to
HUBCO prior to the date hereof. Except as affected by the
transactions contemplated hereby, CFHC or one or more of the CFHC
Subsidiaries as lessees have the right under valid and subsisting
leases to occupy, use, possess and control all real property
leased by CFHC and such CFHC Subsidiaries in all material
respects as presently occupied, used, possessed and controlled by
CFHC and such CFHC Subsidiaries.
(b) The business operations and all insurable
properties and assets of CFHC and Community are insured for their
benefit against all risks which, in the reasonable judgment of
the management of CFHC, should be insured against, in each case
under policies or bonds issued by insurers of recognized
responsibility, in such amounts with such deductibles and against
such risks and losses as are in the opinion of the management of
CFHC adequate for the business engaged in by CFHC and Community.
As of the date hereof, neither CFHC nor Community has received
any notice of cancellation or notice of a material amendment of
any such insurance policy or bond or is in default under any such
policy or bond, no coverage thereunder is being disputed and all
material claims thereunder have been filed in a timely fashion.
3.15 Minute Books. As of the date of this Agreement,
the minute books of CFHC and the CFHC Subsidiaries contain
accurate records of all meetings and other corporate action held
of their respective shareholders and Boards of Directors
(including committees of their respective Boards of Directors)
through a date not later than 30 days prior to the date of this
Agreement, and except for the Merger, no material corporate
actions were considered or approved by the shareholders or Boards
of Directors (or committees thereof) between such date and the
date of this Agreement which are not fully disclosed in the CFHC
Disclosure Schedule. On the Closing Date, the minute books of
CFHC and the CFHC Subsidiaries shall contain accurate records of
all meetings and other corporate action held of their respective
shareholders and Boards of Directors (including committees of
their respective Boards of Directors) through the Closing Date.
3.16 Environmental Matters. Except as disclosed in the
CFHC Disclosure Schedule, neither CFHC nor any CFHC Subsidiary
has received any written notice, citation, claim, assessment,
proposed assessment or demand for abatement alleging that CFHC or
any CFHC Subsidiary (either directly or as a successor in
interest in connection with the enforcement of remedies to
realize the value of properties serving as collateral for
outstanding loans) is responsible for the correction or cleanup
of any condition resulting from the violation of any law,
ordinance or other governmental regulation regarding
environmental matters, other than corrections or cleanups which,
in the aggregate, are immaterial to CFHC and the CFHC
Subsidiaries, taken as a whole. Except as disclosed in the CFHC
Disclosure Schedule, CFHC has no knowledge that any toxic or
hazardous substances or materials have been emitted, generated,
disposed of or stored on any non-residential property currently
owned or leased by CFHC or any CFHC Subsidiary, or owned or
leased in the five years prior to the date of this Agreement in
any manner that violates any presently existing federal, state or
local law or regulation governing or pertaining to such
substances and materials, other than violations which, in the
aggregate, are immaterial to CFHC and the CFHC Subsidiaries,
taken as a whole. Except as disclosed in the CFHC Disclosure
Schedule, all property formerly owned or leased by CFHC or any
CFHC Subsidiary which was subject to the provisions of the
Industrial Site Recovery Act, N.J.S.A. 13:1K-6, et seq. as
amended ("ISRA"), complied with all applicable provisions of ISRA
at the time such property was sold or transferred other than non-
compliances which, in the aggregate, are immaterial to CFHC and
the CFHC Subsidiaries, taken as a whole
3.17. Reserves. As of September 30, 1997, the
allowance for loan losses in the CFHC Financial Statements was
adequate pursuant to GAAP (consistently applied), and the
methodology used to compute the loan loss reserve complied in all
material respects with GAAP (consistently applied) and all
applicable policies of the OCC. As of December 31, 1997, the
allowance for loan losses in the financial statements which will
be included in CFHC's Annual Report on Form 10-K for the year
ended December 31, 1997 will be adequate pursuant to GAAP
(consistently applied), and the methodology used to compute the
loan loss reserve will comply in all material respects with GAAP
(consistently applied) and all applicable policies of the OCC.
As of December 31, 1997, neither CFHC nor Community held any OREO
properties which required, or will require a reserve in the
financial statements which will be included in CFHC's Annual
Report on Form 10-K for the year ended December 31, 1997.
3.17 No Parachute Payments. Except as set forth in the
CFHC Disclosure Schedule, no officer, director, employee or agent
(or former officer, director, employee or agent) of CFHC or any
CFHC Subsidiary is entitled now, or will or may be entitled to as
a consequence of this Agreement or the Merger, to any payment or
benefit from CFHC, a CFHC Subsidiary, HUBCO or a HUBCO Subsidiary
which if paid or provided would constitute an "excess parachute
payment", as defined in Section 280G of the Code or regulations
promulgated thereunder.
3.18 Agreements with Bank Regulators. Neither CFHC nor
any CFHC Subsidiary is a party to any agreement or memorandum of
understanding with, or a party to any commitment letter, board
resolution submitted to a regulatory authority or similar
undertaking to, or is subject to any order or directive by, or is
a recipient of any extraordinary supervisory letter from, any
court, governmental authority or other regulatory or
administrative agency or commission, domestic or foreign
("Governmental Entity") which restricts materially the conduct of
its business, or in any manner relates to its capital adequacy,
its credit or reserve policies or its management, except for
those the existence of which has been disclosed in writing to
HUBCO by CFHC prior to the date of this Agreement, nor has CFHC
been advised by any Governmental Entity that it is contemplating
issuing or requesting (or is considering the appropriateness of
issuing or requesting) any such order, decree, agreement,
memorandum of understanding, extraordinary supervisory letter,
commitment letter or similar submission, except as disclosed in
writing to HUBCO by CFHC prior to the date of this Agreement.
Neither CFHC nor any CFHC Subsidiary is required by Section 32 of
the Federal Deposit Insurance Act to give prior notice to a
Federal banking agency of the proposed addition of an individual
to its board of directors or the employment of an individual as a
senior executive officer, except as disclosed in writing to HUBCO
by CFHC prior to the date of this Agreement.
3.19 Year 2000 Compliance. CFHC and the CFHC
Subsidiaries have taken all reasonable steps necessary to address
the software, accounting and record keeping issues raised in
order to be substantially Year 2000 compliant on or before the
end of 1999 and CFHC does not expect the future cost of
addressing such issues to be material.
3.20 Disclosure. No representation or warranty
contained in Article III of this Agreement contains any untrue
statement of a material fact or omits to state a material fact
necessary to make the statements herein not misleading.
ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF HUBCO
References herein to the "HUBCO Disclosure Schedule"
shall mean all of the disclosure schedules required by this
Article IV, dated as of the date hereof and referenced to the
specific sections and subsections of Article IV of this Agreement,
which have been delivered on the date hereof by HUBCO to CFHC.
HUBCO hereby represents and warrants to CFHC as follows:
4.1 Corporate Organization.
(a) HUBCO is a corporation duly organized and
validly existing and in good standing under the laws of the State
of New Jersey. HUBCO has the corporate power and authority to own
or lease all of its properties and assets and to carry on its
business as it is now being conducted, and is duly licensed or
qualified to do business and is in good standing in each
jurisdiction in which the nature of the business conducted by it or
the character or location of the properties and assets owned or
leased by it makes such licensing or qualification necessary,
except where the failure to be so licensed, qualified or in good
standing would not have a material adverse effect on the business,
operations, assets or financial condition of HUBCO and the HUBCO
Subsidiaries (defined below), taken as a whole. HUBCO is
registered as a bank holding company under the BHCA.
(b) Each HUBCO Subsidiary is listed in the HUBCO
Disclosure Schedule. For the purposes of this Agreement, the term
"HUBCO Subsidiary" means any corporation, partnership, joint
venture or other legal entity in which HUBCO directly or
indirectly, owns at least a 50% stock or other equity interest or
for which HUBCO, directly or indirectly, acts as a general partner
provided that to the extent that any representation or warranty set
forth herein covers a period of time prior to the date of this
Agreement, the term "HUBCO Subsidiary" shall include any entity
which was an HUBCO Subsidiary at any time during such period. Each
HUBCO Subsidiary is duly organized and validly existing and in good
standing under the laws of the jurisdiction of its incorporation.
The Bank is a state-chartered commercial banking corporation duly
organized and validly existing and in good standing under the laws
of the State of New Jersey. All eligible accounts of depositors
issued by the Bank are insured by the BIF to the fullest extent
permitted by law. Each HUBCO Subsidiary has the corporate power
and authority to own or lease all of its properties and assets and
to carry on its business as it is now being conducted and is duly
licensed or qualified to do business and is in good standing in
each jurisdiction in which the nature of the business conducted by
it or the character or location of the properties and assets owned
or leased by it makes such licensing or qualification necessary,
except where the failure to be so licensed, qualified or in good
standing would not have a material adverse effect on HUBCO and the
HUBCO Subsidiaries taken as a whole. The HUBCO Disclosure Schedule
sets forth true and complete copies of the Certificate of
Incorporation and By-Laws of HUBCO and the Bank as in effect on the
date hereof.
4.2 Capitalization. The authorized capital stock of
HUBCO consists solely of 53,045,000 common shares, no par value
("HUBCO Common Stock"), and 10,609,000 shares of preferred stock
("HUBCO Authorized Preferred Stock"). As of December 31, 1997,
there were 21,911,502 shares of HUBCO Common Stock issued and
outstanding, and no shares of treasury stock, and 1,250 shares of
HUBCO Authorized Preferred Stock outstanding, all of which were
designated Series B, no par value, Convertible Preferred Stock.
From time to time hereafter, subject to the covenant in
Section 5.17 below, HUBCO may sell or repurchase shares of HUBCO
Common Stock. Except for shares issuable under or arising from the
merger agreements by which HUBCO is to acquire Bank of the Hudson
("BTH") and its parent corporation, Poughkeepsie Financial Corp.
(the "BTH Agreement"), MSB Bank and its parent corporation MSB
Bancorp, Inc. (the "MSB Agreement"), the HUBCO 1995 Stock Option
Plan (the "HUBCO Stock Option Plans") and outstanding warrants to
purchase 33,284 shares of HUBCO Common Stock, there are no shares
of HUBCO Common Stock issuable upon the exercise of outstanding
stock options or otherwise. All issued and outstanding shares of
HUBCO Common Stock, and all issued and outstanding shares of
capital stock of the HUBCO Subsidiaries, have been duly authorized
and validly issued, are fully paid, nonassessable and free of
preemptive rights, and are free and clear of all liens,
encumbrances, charges, restrictions or rights of third parties.
All of the outstanding shares of capital stock of the HUBCO
Subsidiaries are owned by HUBCO free and clear of any liens,
encumbrances, charges, restrictions or rights of third parties.
Except for the shares issuable under the HUBCO Stock Option Plans
and HUBCO's obligations under the BTH Agreement and the MSB
Agreement, neither HUBCO nor any HUBCO Subsidiary has granted or is
bound by any outstanding subscriptions, options, warrants, calls,
commitments or agreements of any character calling for the
transfer, purchase or issuance of any shares of capital stock of
HUBCO or any HUBCO Subsidiary or any securities representing the
right to purchase, subscribe or otherwise receive any shares of
such capital stock or any securities convertible into any such
shares, and there are no agreements or understandings with respect
to voting of any such shares.
4.3 Authority; No Violation.
(a) Subject to the receipt of all necessary
governmental approvals, HUBCO has full corporate power and
authority to execute and deliver this Agreement and to consummate
the transactions contemplated hereby in accordance with the terms
hereof. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly
and validly approved by the Board of Directors of HUBCO in
accordance with its Certificate of Incorporation and applicable
laws and regulations. Except for such approvals, no other
corporate proceedings on the part of HUBCO are necessary to
consummate the transactions so contemplated. This Agreement has
been duly and validly executed and delivered by HUBCO and
constitutes the valid and binding obligation of HUBCO, enforceable
against HUBCO in accordance with its terms.
(b) Neither the execution or delivery of this
Agreement by HUBCO, nor the consummation by HUBCO of the
transactions contemplated hereby in accordance with the terms
hereof, or compliance by HUBCO with any of the terms or provisions
hereof will (i) violate any provision of the Certificate of
Incorporation or By-Laws of HUBCO, (ii) assuming that the consents
and approvals set forth below are duly obtained, violate any
statute, code, ordinance, rule, regulation, judgment, order, writ,
decree or injunction applicable to HUBCO, any HUBCO Subsidiary, or
any of their respective properties or assets, or (iii) violate,
conflict with, result in a breach of any provision of, constitute a
default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, result in the termination of,
accelerate the performance required by, or result in the creation
of any lien, security interest, charge or other encumbrance upon
any of the properties or assets of HUBCO under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture,
deed of trust, license, lease, agreement or other instrument or
obligation to which HUBCO is a party, or by which it or any of its
properties or assets may be bound or affected, except, with respect
to (ii) and (iii) above, such as individually or in the aggregate
will not have a material adverse effect on HUBCO, and which will
not prevent or materially delay the consummation of the
transactions contemplated hereby. Except for consents and
approvals of or filings or registrations with or notices to the
FDIC, the FRB, the OCC, the Department, the Secretary of State of
New Jersey, or other applicable Governmental Entities, no consents
or approvals of or filings or registrations with or notices to any
third party or any public body or authority are necessary on behalf
of HUBCO in connection with (x) the execution and delivery by HUBCO
of this Agreement, and (y) the consummation by HUBCO of the Merger
and the other transactions contemplated hereby, except such as are
listed in the HUBCO Disclosure Schedule or in the aggregate will
not (if not obtained) have a material adverse effect on HUBCO and
which will not prevent or materially delay the consummation of the
transactions contemplated hereby. To the best of HUBCO's
knowledge, no fact or condition exists which HUBCO has reason to
believe will prevent it from obtaining the aforementioned consents
and approvals.
4.4 Financial Statements.
(a) The HUBCO Disclosure Schedule sets forth
copies of the consolidated statements of financial condition of
HUBCO as of December 31, 1995 and 1996, and the related
consolidated statements of income, changes in shareholders' equity
and of cash flows for the periods ended December 31, in each of the
two fiscal years 1995 through 1996, in each case accompanied by the
audit report of Arthur Andersen, LLP independent public accountants
with respect to HUBCO ("Arthur Andersen"), and the unaudited
consolidated statement of condition of HUBCO as of September 30,
1997 and the related unaudited consolidated statements of income
and cash flows for the nine months ended September 30, 1997 and
1996, as reported in HUBCO's Quarterly Report on Form 10-Q, filed
with the SEC under the 1934 Act (collectively, the "HUBCO Financial
Statements"). The HUBCO Financial Statements (including the
related notes) have been prepared in accordance with GAAP
consistently applied during the periods involved (except as may be
indicated therein or in the notes thereto), and fairly present the
consolidated financial position of HUBCO as of the respective dates
set forth therein, and the related consolidated statements of
income, changes in shareholders' equity and of cash flows
(including the related notes, where applicable) fairly present the
consolidated results of operations, changes in shareholders' equity
and cash flows of HUBCO for the respective fiscal periods set forth
therein.
(b) The books and records of HUBCO and the HUBCO
Subsidiaries are being maintained in material compliance with
applicable legal and accounting requirements, and reflect only
actual transactions.
(c) Except as and to the extent reflected,
disclosed or reserved against in the HUBCO Financial Statements
(including the notes thereto), as of September 30, 1997 neither
HUBCO nor any of the HUBCO Subsidiaries had any obligation or
liability, whether absolute, accrued, contingent or otherwise,
material to the business, operations, assets or financial condition
of HUBCO or any of the HUBCO Subsidiaries which were required by
GAAP (consistently applied) to be disclosed in HUBCO's consolidated
statement of condition as of September 30, 1997 or the notes
thereto. Except for the transactions contemplated by this
Agreement, and the other proposed acquisitions by HUBCO reflected
in any Form 8-K filed by HUBCO with the SEC since September 30,
1997, neither HUBCO nor any HUBCO Subsidiary has incurred any
liabilities.
4.5 Broker's and Other Fees. Neither HUBCO, any HUBCO
Subsidiary nor any of its directors or officers has employed any
broker or finder or incurred any liability for any broker's or
finder's fees or commissions in connection with any of the
transactions contemplated by this Agreement.
4.6 Absence of Certain Changes or Events. There has
not been any material adverse change in the business, operations,
assets or financial condition of HUBCO and HUBCO's Subsidiaries
taken as a whole since September 30, 1997 and to the best of
HUBCO's knowledge, except for any merger related charges arising
from or connected with the consummation of the transactions
contemplated by the BTH Agreement, the MSB Agreement and the effect
of the consummation of other publicly announced mergers or
acquisitions, not yet consummated (the "Effects of Announced
Acquisitions"), no facts or condition exists which HUBCO believes
will cause such a material adverse change in the future.
4.7 Legal Proceedings. Except as disclosed in the
HUBCO Disclosure Schedule, and except for ordinary routine
litigation incidental to the business of HUBCO or the HUBCO
Subsidiaries, neither HUBCO nor any of its Subsidiaries is a party
to any, and there are no pending or, to the best of HUBCO's
knowledge, threatened legal, administrative, arbitral or other
proceedings, claims, actions or governmental investigations of any
nature against HUBCO or any of the HUBCO Subsidiaries which, if
decided adversely to HUBCO or the HUBCO Subsidiaries, are
reasonably likely to have a material adverse effect on HUBCO and
the HUBCO Subsidiaries taken as a whole. Except as disclosed in
the HUBCO Disclosure Schedule, neither HUBCO nor any HUBCO
Subsidiary is a party to any order, judgment or decree entered in
any lawsuit or proceeding which is material to HUBCO or the HUBCO
Subsidiaries taken as a whole.
4.8 Tax Returns.
(a) HUBCO and each HUBCO Subsidiary have duly
filed (and until the Effective Time will so file) all Returns
required to be filed by them in respect of any federal, state and
local taxes (including withholding taxes, penalties or other
payments required) and have duly paid (and until the Effective Time
will so pay) all such taxes due and payable, other than taxes or
other charges which are being contested in good faith (and
disclosed to CFHC in writing). HUBCO and HUBCO's Subsidiaries have
established (and until the Effective Time will establish) on their
books and records reserves that are adequate for the payment of all
federal, state and local taxes not yet due and payable, but are
incurred in respect of HUBCO or HUBCO's Subsidiaries through such
date. The HUBCO Disclosure Schedule identifies the federal income
tax returns of HUBCO and HUBCO's Subsidiaries which have been
examined by the IRS within the past six years. No deficiencies
were asserted as a result of such examinations which have not been
resolved and paid in full. The HUBCO Disclosure Schedule
identifies the applicable state income tax returns of HUBCO and
HUBCO's Subsidiaries which have been examined by the applicable
authorities. No deficiencies were asserted as a result of such
examinations which have not been resolved and paid in full. To the
best knowledge of HUBCO, there are no audits or other
administrative or court proceedings presently pending nor any other
disputes pending with respect to, or claims asserted for, taxes or
assessments upon HUBCO or HUBCO's Subsidiaries, nor has HUBCO or
HUBCO's Subsidiaries given any currently outstanding waivers or
comparable consents regarding the application of the statute of
limitations with respect to any taxes or Returns.
(b) Except as set forth in the HUBCO Disclosure
Schedule, neither HUBCO nor any Subsidiary of HUBCO (i) has
requested any extension of time within which to file any Return
which Return has not since been filed, (ii) is a party to any
agreement providing for the allocation or sharing of taxes with
third parties, (iii) is required to include in income any
adjustment pursuant to Section 481(a) of the Code, by reason of a
voluntary change in accounting method initiated by HUBCO (nor does
HUBCO have any knowledge that the IRS has proposed any such
adjustment or change of accounting method) or (iv) has filed a
consent pursuant to Section 341(f) of the Code or agreed to have
Section 341(f)(2) of the Code apply.
4.9 Employee Benefit Plans.
(a) HUBCO and the HUBCO Subsidiaries maintain or
contribute to certain "employee pension benefit plans" (the "HUBCO
Pension Plans"), as such term is defined in Section 3(2)(A) of
ERISA, and "employee welfare benefit plans" (the "HUBCO Welfare
Plans"), as such term is defined in Section 3(1) of ERISA. Since
September 2, 1974, neither HUBCO nor any HUBCO Subsidiary has
contributed to any "Multiemployer Plan", as such term is defined in
Section 3(37) of ERISA.
(b) Each of the HUBCO Pension Plans and each of
the HUBCO Welfare Plans has been operated in compliance in all
material respects with the provisions of ERISA, the Code, all
regulations, rulings and announcements promulgated or issued
thereunder, and all other applicable governmental laws and
regulations. HUBCO is not aware of any fact or circumstance which
would disqualify any plan that could not be retroactively corrected
(in accordance with the procedures of the IRS).
(c) The present value of all accrued benefits
under each of the HUBCO Pension Plans subject to Title IV of ERISA,
based upon the actuarial assumptions used for purposes of the most
recent actuarial valuation prepared by such HUBCO Pension Plan's
actuary, did not exceed the then current value of the assets of
such plans allocable to such accrued benefits. To the best of
HUBCO's knowledge, the actuarial assumptions then utilized for such
plans were reasonable and appropriate as of the last valuation date
and reflect the then current market conditions.
(d) During the last five years, the PBGC has not
asserted any claim for liability against HUBCO or any HUBCO
Subsidiary which has not been paid in full.
(e) All premiums (and interest charges and
penalties for late payment, if applicable) due to the PBGC with
respect to each HUBCO Pension Plan have been paid. All
contributions required to be made to each HUBCO Pension Plan under
the terms thereof, ERISA or other applicable law have been timely
made, and all amounts properly accrued to date as liabilities of
HUBCO which have not been paid have been properly recorded on the
books of HUBCO.
(f) No "accumulated funding deficiency", within
the meaning of Section 412 of the Code, has been incurred with
respect to any of the HUBCO Pension Plans.
(g) There are no pending or, to the best knowledge
of HUBCO, threatened or anticipated claims (other than routine
claims for benefits) by, on behalf of or against any of the HUBCO
Pension Plans or the HUBCO Welfare Plans, any trusts created
thereunder or any other plan or arrangement identified in the HUBCO
Disclosure Schedule.
(h) Except with respect to customary health, life
and disability benefits or as disclosed in the HUBCO Disclosure
Schedule, HUBCO has no unfunded benefit obligations which are not
accounted for by reserves shown on the financial statements and
established under GAAP or otherwise noted on such financial
statements.
(i) To the best knowledge of HUBCO, no non-exempt
prohibited transaction, within the meaning of Section 4975 of the
Code or Section 406 of ERISA, has occurred with respect to any
HUBCO Welfare Plan or HUBCO Pension Plan that would result in any
material tax or penalty for HUBCO or any HUBCO Subsidiary.
(j) Except as disclosed in the HUBCO Disclosure
Schedule, no HUBCO Pension Plan or any trust created thereunder has
been terminated, nor have there been any "reportable events"
(notice of which has not been waived by the PBGC), within the
meaning of Section 4034(b) of ERISA, with respect to any HUBCO
Pension Plan.
4.10 Reports. Since January 1, 1994, HUBCO has filed
all reports that it was required to file with the SEC under the
1934 Act, all of which complied in all material respects with all
applicable requirements of the 1934 Act and the rules and
regulations adopted thereunder. As of their respective dates, each
such report and each registration statement, proxy statement, form
or other document filed by HUBCO with the SEC, including without
limitation, any financial statements or schedules included therein,
did not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements made therein, in light of the circumstances
under which they were made, not misleading, provided that
information as of a later date shall be deemed to modify
information as of an earlier date. Since January 1, 1994, HUBCO
and each HUBCO Subsidiary has duly filed all material forms,
reports and documents which they were required to file with each
agency charged with regulating any aspect of their business.
4.11 HUBCO Information. The information relating to
HUBCO and the HUBCO Subsidiaries (including, without limitation,
information regarding other transactions which HUBCO is required to
disclose), this Agreement and the transactions contemplated hereby
to be contained in the Registration Statement and Proxy Statement-
Prospectus (as defined in Section 5.6(a) hereof), as of the date of
the mailing of the Proxy Statement-Prospectus, and up to and
including the date of the meeting of shareholders of CFHC to which
such Proxy Statement-Prospectus relates, will not contain any
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which
they are made, not misleading. The Registration Statement shall
comply as to form in all material respects with the provisions of
the 1933 Act, the 1934 Act and the rules and regulations
promulgated thereunder.
4.12 Compliance With Applicable Law. Except as set
forth in the HUBCO Disclosure Schedule, each of HUBCO and HUBCO's
Subsidiaries holds all material licenses, franchises, permits and
authorizations necessary for the lawful conduct of its business,
and has complied with and is not in default in any respect under
any applicable law, statute, order, rule, regulation, policy and/or
guideline of any federal, state or local governmental authority
relating to HUBCO or HUBCO's Subsidiaries (including without
limitation consumer, community and fair lending laws) (other than
where the failure to have a license, franchise, permit or
authorization or where such default or noncompliance will not
result in a Material Adverse Effect on HUBCO) and HUBCO has not
received notice of violation of, and does not know of any
violations of, any of the above.
4.13 Contracts. Except as disclosed in the HUBCO
Disclosure Schedule, neither HUBCO nor any HUBCO Subsidiary, or to
the best knowledge of HUBCO, any party thereto, is in default in
any material respect under any material lease, contract, mortgage,
promissory note, deed of trust, loan or other commitment (except
those under which the Bank or another HUBCO Subsidiary is or will
be the creditor) or arrangement, except for defaults which
individually or in the aggregate would not have a material adverse
effect on HUBCO.
4.14 Properties and Insurance.
(a) HUBCO and the HUBCO Subsidiaries have good
and, as to owned real property, marketable title to all material
assets and properties, whether real or personal, tangible or
intangible, reflected in HUBCO's consolidated balance sheet as of
September 30, 1997, or owned and acquired subsequent thereto
(except to the extent that such assets and properties have been
disposed of for fair value in the ordinary course of business since
September 30, 1997), subject to no encumbrances, liens, mortgages,
security interests or pledges, except (i) those items that secure
liabilities that are reflected in said balance sheet or the notes
thereto or that secure liabilities incurred in the ordinary course
of business after the date of such balance sheet, (ii) statutory
liens for amounts not yet delinquent or which are being contested
in good faith, and (iii) such encumbrances, liens, mortgages,
security interests, pledges and title imperfections that are not in
the aggregate material to the business, operations, assets, and
financial condition of HUBCO and the HUBCO Subsidiaries taken as a
whole. Except as disclosed in the HUBCO Disclosure Schedule, HUBCO
and the HUBCO Subsidiaries as lessees have the right under valid
and subsisting leases to occupy, use, possess and control all
property leased by HUBCO or the HUBCO Subsidiaries in all material
respects as presently occupied, used, possessed and controlled by
HUBCO and the HUBCO Subsidiaries.
(b) The business operations and all insurable
properties and assets of HUBCO and the HUBCO Subsidiaries are
insured for their benefit against all risks which, in the
reasonable judgment of the management of HUBCO, should be insured
against, in each case under policies or bonds issued by insurers of
recognized responsibility, in such amounts with such deductibles
and against such risks and losses as are in the opinion of the
management of HUBCO adequate for the business engaged in by HUBCO
and the HUBCO Subsidiaries. As of the date hereof, neither HUBCO
nor any HUBCO Subsidiary has received any notice of cancellation or
notice of a material amendment of any such insurance policy or bond
or is in default under any such policy or bond, no coverage
thereunder is being disputed and all material claims thereunder
have been filed in a timely fashion.
4.15 Environmental Matters. Except as disclosed in the
HUBCO Disclosure Schedule, neither HUBCO nor any HUBCO Subsidiary
has received any written notice, citation, claim, assessment,
proposed assessment or demand for abatement alleging that HUBCO or
any HUBCO Subsidiary (either directly, or as a trustee or
fiduciary, or as a successor-in-interest in connection with the
enforcement of remedies to realize the value of properties serving
as collateral for outstanding loans) is responsible for the
correction or cleanup of any condition resulting from the violation
of any law, ordinance or other governmental regulation regarding
environmental matters which correction or cleanup would be material
to the business, operations, assets or financial condition of HUBCO
and the HUBCO Subsidiaries taken as a whole. Except as disclosed
in the HUBCO Disclosure Schedule, HUBCO has no knowledge that any
toxic or hazardous substances or materials have been emitted,
generated, disposed of or stored on any non-residential property
currently owned or leased by HUBCO or any HUBCO Subsidiary, or
owned or leased in the five years prior to the date of this
Agreement in any manner that violates any presently existing
federal, state or local law or regulation governing or pertaining
to such substances and materials, other than violations which, in
the aggregate, are immaterial to HUBCO and the HUBCO Subsidiaries,
taken as a whole. Except as disclosed in the HUBCO Disclosure
Schedule, all property formerly owned or leased by HUBCO or any
HUBCO Subsidiary which was subject to ISRA, complied with all
applicable provisions of ISRA at the time such property was sold or
transferred other than non-compliances which, in the aggregate, are
immaterial to HUBCO and the HUBCO Subsidiaries, taken as a whole.
4.16 Reserves. As of September 30, 1997, each of the
allowances for loan losses and the reserve for OREO properties in
the HUBCO Financial Statements was adequate pursuant to GAAP
(consistently applied), and the methodology used to compute each of
the loan loss reserves and the reserve for OREO properties complies
in all material respects with GAAP (consistently applied) and all
applicable policies of the FDIC and the New Jersey Department of
Banking.
4.17 HUBCO Stock. As of the date hereof, HUBCO has
available and reserved shares of HUBCO Common Stock sufficient for
issuance pursuant to the Merger and upon the exercise of the CFHC
Stock Options and the PMG Warrants. The HUBCO Common Stock to be
issued hereunder pursuant to the Merger and upon the exercise of
the CFHC Stock Options and the PMG Warrants, when so issued, will
be duly authorized and validly issued, fully paid, nonassessable,
free of preemptive rights and free and clear of all liens,
encumbrances or restrictions created by or through HUBCO, with no
personal liability attaching to the ownership thereof. The HUBCO
Common Stock to be issued hereunder pursuant to the Merger, when so
issued, will be registered under the 1933 Act and issued in
accordance with all applicable state and federal laws, rules and
regulations and approved for listing on NASDAQ.
4.18 Agreements with Bank Regulators. Neither HUBCO nor
any HUBCO Subsidiary is a party to any agreement or memorandum of
understanding with, or a party to any commitment letter, board
resolution submitted to a regulatory authority or similar
undertaking to, or is subject to any order or directive by, or is a
recipient of any extraordinary supervisory letter from, any
Government Entity which restricts materially the conduct of its
business, or in any manner relates to its capital adequacy, its
credit or reserve policies or its management, except for those the
existence of which has been disclosed in writing to CFHC by HUBCO
prior to the date of this Agreement, nor has HUBCO been advised by
any Governmental Entity that it is contemplating issuing or
requesting (or is considering the appropriateness of issuing or
requesting) any such order, decree, agreement, memorandum of
understanding, extraordinary supervisory letter, commitment letter
or similar submission, except as disclosed in writing to CFHC by
HUBCO prior to the date of this Agreement. Neither HUBCO nor any
HUBCO Subsidiary is required by Section 32 of the Federal Deposit
Insurance Act to give prior notice to a Federal banking agency of
the proposed addition of an individual to its board of directors or
the employment of an individual as a senior executive officer,
except as disclosed in writing to CFHC by HUBCO prior to the date
of this Agreement.
4.19 Capital Adequacy. At the Effective Time, after
taking into account the effect of the Merger, the consummation of
the mergers contemplated by the BTH Agreement and the MSB Agreement
and the agreement whereby HUBCO will assume the deposits in 22
branches of First Union Bank, HUBCO will have sufficient capital to
satisfy all applicable regulatory capital requirements.
4.20 Minute Books. The minute books of HUBCO and its
bank subsidiaries contain records of all meetings and other
corporate action held of their respective shareholders and Boards
of Directors (including committees of their respective Boards of
Directors) that are complete and accurate in all material respects.
4.21 Year 2000 Compliance. HUBCO and the HUBCO
Subsidiaries have taken all reasonable steps necessary to address
the software, accounting and record keeping issues raised in order
to be Year 2000 compliant on or before the end of 1999 and HUBCO
does not expect the future cost of addressing such issues to be
material.
4.22 Disclosure. No representation or warranty
contained in Article IV of this Agreement contains any untrue
statement of a material fact or omits to state a material fact
necessary to make the statements herein not misleading.
ARTICLE V - COVENANTS OF THE PARTIES
5.1 Conduct of the Business of CFHC. During the period
from the date of this Agreement to the Effective Time, CFHC and
Community shall, and shall cause each CFHC Subsidiary to, conduct
their respective businesses only in the ordinary course and
consistent with prudent business practice, except for transactions
permitted hereunder or with the prior written consent of HUBCO,
which consent will not be unreasonably withheld. Each of CFHC and
Community also shall use its reasonable best efforts to
(i) preserve its business organization and that of the CFHC
Subsidiaries intact, (ii) keep available to itself the present
services of its employees and those of the CFHC Subsidiaries, and
(iii) preserve for itself and HUBCO the goodwill of its customers
and those of the CFHC Subsidiaries and others with whom business
relationships exist.
5.2 Negative Covenants. From the date hereof to the
Effective Time, except as otherwise approved by HUBCO in writing,
or as set forth in the CFHC Disclosure Schedule, or as permitted or
required by this Agreement, neither CFHC nor Community will:
(a) change any provision of its Certificate of
Incorporation or any similar governing documents;
(b) change any provision of its By-Laws without
the consent of HUBCO which consent shall not be unreasonably
withheld;
(c) change the number of shares of its authorized
or issued capital stock (other than upon exercise of stock options
or warrants described in the CFHC Disclosure Schedule in accordance
with the term thereof) or issue or grant any option, warrant, call,
commitment, subscription, right to purchase or agreement of any
character relating to its authorized or issued capital stock, or
any securities convertible into shares of such stock, or split,
combine or reclassify any shares of its capital stock, or declare,
set aside or pay any dividend, or other distribution (whether in
cash, stock or property or any combination thereof) in respect of
its capital stock; provided, however, that from the date hereof to
the Effective Time, CFHC may declare, set aside or pay dividends on
the CFHC Common Stock in a quarterly amount equal to $0.14 per
share.
(d) grant any severance or termination pay (other
than pursuant to policies or contracts of CFHC in effect on the
date hereof and disclosed to HUBCO in the CFHC Disclosure Schedule)
to, or enter into or amend any employment or severance agreement
with, any of its directors, officers or employees; adopt any new
employee benefit plan or arrangement of any type; or award any
increase in compensation or benefits to its directors, officers or
employees except in each case as specified in Section 5.2 of the
CFHC Disclosure Schedule.
(e) sell or dispose of any substantial amount of
assets or voluntarily incur any significant liabilities other than
in the ordinary course of business consistent with past practices
and policies or in response to substantial financial demands upon
the business of CFHC or Community.
(f) except for reasonable capital expenditures in
connection with the establishment of its branch in Medford, New
Jersey and other capital expenditures not to exceed $25,000 in the
aggregate, make any capital expenditures other than pursuant to
binding commitments existing on the date hereof, expenditures
necessary to maintain existing assets in good repair and
expenditures described in business plans or budgets previously
furnished to HUBCO.
(g) file any applications or make any contract
with respect to branching or site location or relocation.
(h) agree to acquire in any manner whatsoever
(other than to realize upon collateral for a defaulted loan) any
business or entity or make any new investments in securities other
than investments in government, municipal or agency bonds having a
maturity of less than five years.
(i) make any material change in its accounting
methods or practices, other than changes required in accordance
with generally accepted accounting principles or regulatory
authorities.
(j) take any action that would result in any of
its representations and warranties contained in Article III of this
Agreement not being true and correct in any material respect at the
Effective Time or that would cause any of its conditions to Closing
not to be satisfied;
(k) without first conferring with HUBCO, make or
commit to make any new loan or other extension of credit in an
amount of $500,000 or more, renew for a period in excess of one
year any existing loan or other extension of credit in an amount of
$500,000 or more, or increase by $500,000 or more the aggregate
credit outstanding to any borrower or group of affiliated borrowers
except such loan initiations, renewals or increases that are
committed as of the date of this Agreement and identified in the
CFHC Disclosure Schedule and residential loans made in the ordinary
course of business in accordance with past practice; or
(l) agree to do any of the foregoing.
5.3 No Solicitation. So long as this Agreement remains
in effect, CFHC and Community shall not, directly or indirectly,
encourage or solicit or hold discussions or negotiations with, or
provide any information to, any person, entity or group (other than
HUBCO) concerning any merger or sale of shares of capital stock or
sale of substantial assets or liabilities not in the ordinary
course of business, or similar transactions involving CFHC or
Community (an "Acquisition Transaction"). Notwithstanding the
foregoing, (i) CFHC may respond to inquiries from holders of CFHC
Common Stock in the ordinary course of business and (ii) CFHC may
enter into discussions or negotiations or provide any information
in connection with an unsolicited possible Acquisition Transaction
if the Board of Directors of CFHC, after consulting with counsel,
determines in the exercise of its fiduciary responsibilities that
such discussions or negotiations should be commenced or such
information should be furnished. CFHC shall promptly communicate
to HUBCO the terms of any proposal, whether written or oral, which
it may receive in respect of any such Acquisition Transaction and
the fact that it is having discussions or negotiations with a third
party about an Acquisition Transaction.
5.4 Current Information. During the period from the
date of this Agreement to the Effective Time, each of CFHC and
HUBCO will cause one or more of its designated representatives to
confer with representatives of the other party on a monthly or more
frequent basis regarding its business, operations, properties,
assets and financial condition and matters relating to the
completion of the transactions contemplated herein. On a monthly
basis, CFHC agrees to provide HUBCO, and HUBCO agrees to provide
CFHC, with internally prepared profit and loss statements no later
than 15 days after the close of each calendar month. As soon as
reasonably available, but in no event more than 45 days after the
end of each fiscal quarter (other than the last fiscal quarter of
each fiscal year), CFHC will deliver to HUBCO and HUBCO will
deliver to CFHC their respective quarterly reports on Form 10-Q, as
filed with the SEC under the 1934 Act. As soon as reasonably
available, but in no event more than 90 days after the end of each
calendar year, CFHC will deliver to HUBCO and HUBCO will deliver to
CFHC their respective Annual Reports on Form 10-K as filed with the
SEC under the 1934 Act.
5.5 Access to Properties and Records; Confidentiality.
(a) CFHC and Community shall permit HUBCO and its
representatives, and HUBCO shall permit, and cause each HUBCO
Subsidiary to permit, CFHC and its representatives, reasonable
access to their respective properties, and shall disclose and make
available to HUBCO and its representatives, or CFHC and its
representatives as the case may be, all books, papers and records
relating to its assets, stock ownership, properties, operations,
obligations and liabilities, including, but not limited to, all
books of account (including the general ledger), tax records,
minute books of directors' and shareholders' meetings,
organizational documents, By-Laws, material contracts and
agreements, filings with any regulatory authority, accountants'
work papers, litigation files, plans affecting employees, and any
other business activities or prospects in which HUBCO and its
representatives or CFHC and its representatives may have a
reasonable interest. Neither party shall be required to provide
access to or to disclose information where such access or
disclosure would violate or prejudice the rights of any customer,
would contravene any law, rule, regulation, order or judgment or
would waive any privilege. The parties will use their reasonable
best efforts to obtain waivers of any such restriction (other than
waivers of the attorney-client privilege) and in any event make
appropriate substitute disclosure arrangements under circumstances
in which the restrictions of the preceding sentence apply.
Notwithstanding the foregoing, CFHC acknowledges that HUBCO may be
involved in discussions concerning other potential acquisitions and
HUBCO shall not be obligated to disclose such information to CFHC
except as such information is disclosed to HUBCO's shareholders
generally.
(b) All information furnished by the parties
hereto previously in connection with transactions contemplated by
this Agreement or pursuant hereto shall be used solely for the
purpose of evaluating the Merger contemplated hereby and shall be
treated as the sole property of the party delivering the
information until consummation of the Merger contemplated hereby
and, if such Merger shall not occur, each party and each party's
advisors shall return to the other party all documents or other
materials containing, reflecting or referring to such information,
will not retain any copies of such information, shall use its
reasonable best efforts to keep confidential all such information,
and shall not directly or indirectly use such information for any
competitive or other commercial purposes. In the event that the
Merger contemplated hereby does not occur, all documents, notes and
other writings prepared by a party hereto or its advisors based on
information furnished by the other party shall be promptly
destroyed. The obligation to keep such information confidential
shall continue for five years from the date the proposed Merger is
abandoned but shall not apply to (i) any information which (A) the
party receiving the information can establish by convincing
evidence was already in its possession prior to the disclosure
thereof to it by the other party; (B) was then generally known to
the public; (C) became known to the public through no fault of the
party receiving such information; or (D) was disclosed to the party
receiving such information by a third party not bound by an
obligation of confidentiality; or (ii) disclosures pursuant to a
legal requirement or in accordance with an order of a court of
competent jurisdiction.
5.6 Regulatory Matters.
(a) For the purposes of holding the Shareholders
Meeting (as such term is defined in Section 5.7 hereof), and
qualifying under applicable federal and state securities laws the
HUBCO Common Stock to be issued to CFHC shareholders in connection
with the Merger, the parties hereto shall cooperate in the
preparation and filing by HUBCO with the SEC of a Registration
Statement including a proxy statement and prospectus satisfying all
applicable requirements of applicable state and federal laws,
including the 1933 Act, the 1934 Act and applicable state
securities laws and the rules and regulations thereunder (such
proxy statement and prospectus in the form mailed by CFHC and HUBCO
to the CFHC shareholders together with any and all amendments or
supplements thereto, being herein referred to as the "Proxy
Statement-Prospectus" and the various documents to be filed by
HUBCO under the 1933 Act with the SEC to register the HUBCO Common
Stock for sale, including the Proxy Statement-Prospectus, are
referred to herein as the "Registration Statement").
(b) HUBCO shall furnish CFHC with such information
concerning HUBCO and the HUBCO Subsidiaries (including, without
limitation, information regarding other transactions which HUBCO is
required to disclose) as is necessary in order to cause the Proxy
Statement-Prospectus, insofar as it relates to such corporations,
to comply with Section 5.6(a) hereof. HUBCO agrees promptly to
advise CFHC if at any time prior to the Shareholders' Meeting any
information provided by HUBCO in the Proxy Statement-Prospectus
becomes incorrect or incomplete in any material respect and to
provide CFHC with the information needed to correct such inaccuracy
or omission. HUBCO shall furnish CFHC with such supplemental
information as may be necessary in order to cause the Proxy
Statement-Prospectus, insofar as it relates to HUBCO and the HUBCO
Subsidiaries, to comply with Section 5.6(a) after the mailing
thereof to CFHC shareholders.
(c) CFHC shall furnish HUBCO with such information
concerning CFHC as is necessary to cause the Proxy Statement-
Prospectus, insofar as it relates to CFHC, to comply with
Section 5.6(a) hereof. CFHC agrees promptly to advise HUBCO if at
any time prior to the Shareholders' Meeting, any information
provided by CFHC in the Proxy Statement-Prospectus becomes
incorrect or incomplete in any material respect and to provide
HUBCO with the information needed to correct such inaccuracy or
omission. CFHC shall furnish HUBCO with such supplemental
information as may be necessary in order to cause the Proxy
Statement-Prospectus, insofar as it relates to CFHC and Community
to comply with Section 5.6(a) after the mailing thereof to CFHC
shareholders.
(d) HUBCO shall as promptly as practicable make
such filings as are necessary in connection with the offering of
the HUBCO Common Stock with applicable state securities agencies
and shall use all reasonable efforts to qualify the offering of
such stock under applicable state securities laws at the earliest
practicable date. CFHC shall promptly furnish HUBCO with such
information regarding the CFHC shareholders as HUBCO requires to
enable it to determine what filings are required hereunder. CFHC
authorizes HUBCO to utilize in such filings the information
concerning CFHC and Community provided to HUBCO in connection with,
or contained in, the Proxy Statement-Prospectus. HUBCO shall
furnish CFHC's counsel with copies of all such filings and keep
CFHC advised of the status thereof. HUBCO and CFHC shall as
promptly as practicable file the Registration Statement containing
the Proxy Statement-Prospectus with the SEC, and each of HUBCO and
CFHC shall promptly notify the other of all communications, oral or
written, with the SEC concerning the Registration Statement and the
Proxy Statement-Prospectus.
(e) HUBCO shall cause the HUBCO Common Stock
issuable pursuant to the Merger to be listed on NASDAQ at the
Effective Time. HUBCO shall cause the HUBCO Common Stock which
shall be issuable pursuant to exercise of Stock Options to be
accepted for filing on the NASDAQ when issued.
(f) The parties hereto will cooperate with each
other and use their reasonable best efforts to prepare all
necessary documentation, to effect all necessary filings and to
obtain all necessary permits, consents, approvals and
authorizations of all third parties and governmental bodies
necessary to consummate the transactions contemplated by this
Agreement as soon as possible, including, without limitation, those
required by the FDIC, the FRB, the OCC, the Department and the DEP.
Without limiting the foregoing, the parties shall use reasonable
business efforts to file for approval or waiver by the appropriate
bank regulatory agencies within 45 days after the date hereof. The
parties shall each have the right to review in advance (and shall
do so promptly) all filings with, including all information
relating to the other, as the case may be, and any of their
respective subsidiaries, which appears in any filing made with, or
written material submitted to, any third party or Governmental
Entity (including the SEC) in connection with the transactions
contemplated by this Agreement.
(g) Each of the parties will promptly furnish each
other with copies of written communications received by them or any
of their respective subsidiaries from, or delivered by any of the
foregoing to, any Governmental Entity in respect of the
transactions contemplated hereby.
(h) CFHC acknowledges that HUBCO is in or may be
in the process of acquiring other banks and financial institutions
and that in connection with such acquisitions, information
concerning CFHC may be required to be included in the registration
statements, if any, for the sale of securities of HUBCO or in SEC
reports in connection with such acquisitions. CFHC agrees to
provide HUBCO with any information, certificates, documents or
other materials about CFHC as are reasonably necessary to be
included in such other SEC reports or registration statements,
including registration statements which may be filed by HUBCO prior
to the Effective Time. CFHC shall use its reasonable efforts to
cause its attorneys and accountants to provide HUBCO and any
underwriters for HUBCO with any consents, comfort letters, opinion
letters, reports or information which are necessary to complete the
registration statements and applications or any such acquisition or
issuance of securities. HUBCO shall reimburse CFHC for reasonable
expenses thus incurred by CFHC should this transaction be
terminated for any reason other than Section 7.1(i). HUBCO shall
not file with the SEC any registration statement or amendment
thereto or supplement thereof containing information regarding CFHC
unless CFHC shall have consented to such filing, which consent
shall not be unreasonably delayed or withheld.
5.7 Approval of Shareholders. CFHC will (i) take all
steps necessary duly to call, give notice of, convene and hold a
meeting of the shareholders of CFHC (the "Shareholders Meeting")
for the purpose of securing the approval of shareholders of this
Agreement, (ii) subject to the qualification set forth in
Section 5.3 hereof and the right not to make a recommendation or to
withdraw a recommendation if (x) its investment banker withdraws
its fairness opinion prior to the Shareholders' Meeting or
(y) CFHC's Board of Directors, after consulting with counsel,
determines in the exercise of its fiduciary duties that such
recommendation should not be made or should be withdrawn, recommend
to the shareholders of CFHC the approval of this Agreement and the
transactions contemplated hereby and use its reasonable best
efforts to obtain, as promptly as practicable, such approval, and
(iii) cooperate and consult with HUBCO with respect to each of the
foregoing matters.
If it becomes necessary under NASDAQ rules or applicable
laws to obtain HUBCO shareholder approval, HUBCO shall take all
steps necessary to obtain the approval of its shareholders as
promptly as possible. In connection therewith, HUBCO shall take
all steps necessary to duly call, give notice and convene a meeting
of its shareholders for such purpose.
5.8 Further Assurances.
(a) Subject to the terms and conditions herein
provided, each of the parties hereto agrees to use its reasonable
best efforts to take, or cause to be taken, all action and to do,
or cause to be done, all things necessary, proper or advisable
under applicable laws and regulations to satisfy the conditions to
Closing and to consummate and make effective the transactions
contemplated by this Agreement, including, without limitation,
using reasonable efforts to lift or rescind any injunction or
restraining order or other order adversely affecting the ability of
the parties to consummate the transactions contemplated by this
Agreement and using its reasonable best efforts to prevent the
breach of any representation, warranty, covenant or agreement of
such party contained or referred to in this Agreement and to
promptly remedy the same. In case at any time after the Effective
Time any further action is necessary or desirable to carry out the
purposes of this Agreement, the proper officers and directors of
each party to this Agreement shall take all such necessary action.
Nothing in this section shall be construed to require any party to
participate in any threatened or actual legal, administrative or
other proceedings (other than proceedings, actions or
investigations to which it is a party or subject or threatened to
be made a party or subject) in connection with consummation of the
transactions contemplated by this Agreement unless such party shall
consent in advance and in writing to such participation and the
other party agrees to reimburse and indemnify such party for and
against any and all costs and damages related thereto if the Merger
is not consummated.
(b) HUBCO agrees that from the date hereof to the
Effective Time, except as otherwise approved by CFHC in writing or
as permitted or required by this Agreement, HUBCO will use
reasonable business efforts to maintain and preserve intact its
business organization, properties, leases, employees and
advantageous business relationships, and HUBCO will not, nor will
it permit any HUBCO Subsidiary to, take any action: (i) that would
result in any of its representations and warranties contained in
Article IV of this Agreement not being true and correct in any
material respect at, or prior to, the Effective Time, or (ii) that
would cause any of its conditions to Closing not to be satisfied,
or (iii) that would constitute a breach or default of its
obligations under this Agreement.
5.9 Public Announcements. HUBCO and CFHC shall
cooperate with each other in the development and distribution of
all news releases and other public filings and disclosures with
respect to this Agreement or the Merger transactions contemplated
hereby, and HUBCO and CFHC agree that unless approved mutually by
them in advance, they will not issue any press release or written
statement for general circulation relating primarily to the
transactions contemplated hereby, except as may be otherwise
required by law or regulation upon the advice of counsel.
5.10 Failure to Fulfill Conditions. In the event that
HUBCO or CFHC determines that a material condition to its
obligation to consummate the transactions contemplated hereby
cannot be fulfilled on or prior to September 30, 1998 (the "Cutoff
Date") and that it will not waive that condition, it will promptly
notify the other party. Except for any acquisition or merger
discussions HUBCO may enter into with other parties, CFHC and HUBCO
will promptly inform the other of any facts applicable to CFHC or
HUBCO, respectively, or their respective directors or officers,
that would be likely to prevent or materially delay approval of the
Merger by any Governmental Entity or which would otherwise prevent
or materially delay completion of the Merger.
5.11 Employee Matters.
(a) Following consummation of the Merger, HUBCO
agrees with CFHC to honor the existing written contracts with
officers and employees of CFHC and Community that are included in
the CFHC Disclosure Schedule.
(b) Following consummation of the Merger, the Bank
intends to make available to all employees of CFHC and Community
employed by the Bank coverage under the HUBCO Pension and Welfare
Plans generally available to the Bank's employees on the terms and
conditions available to the Bank's newly hired employees; provided,
however, that credit for prior service with CFHC and/or Community
will be given for the sole purpose of determining whether such
employees are eligible to participate, and vest, when applicable,
in the Bank's medical, vacation, sick leave, disability and 401(k)
plans. At HUBCO's option, CFHC's 401(k) plan will either be frozen
or merged into HUBCO's 401(k) plan; in either event, all employer
contributions to CFHC's 401(k) plan will become fully vested as of
the Effective Time.. No prior existing condition limitation shall
be imposed with respect to any medical coverage plan of the Bank.
(c) Following the consummation of the Merger, the
Bank intends to maintain Community' existing severance policy (as
restated on March 2, 1998) attached hereto as Exhibit 5.11, and
recognize years of service completed while employed by CFHC and/or
Community for purposes of such policy. Following the expiration of
the foregoing severance policy, any years of service recognized for
purposes of this Section 5.11(c) will be taken into account under
the terms of any applicable severance policy of HUBCO.
5.12 Disclosure Supplements. From time to time prior to
the Effective Time, each party hereto will promptly supplement or
amend (by written notice to the other) its respective Disclosure
Schedules delivered pursuant hereto with respect to any matter
hereafter arising which, if existing, occurring or known at the
date of this Agreement, would have been required to be set forth or
described in such Schedules or which is necessary to correct any
information in such Schedules which has been rendered materially
inaccurate thereby. For the purpose of determining satisfaction of
the conditions set forth in Article VI and subject to
Sections 6.2(a) and 6.3(a), no supplement or amendment to the
parties' respective Disclosure Schedules which corrects any
representation or warranty which was untrue when made shall
eliminate the other party's right (if any) to terminate this
Agreement based on the original untruth of the representation or
warranty; provided, that the other party shall be deemed to have
waived such right if it does not exercise such right within 15 days
after receiving the correcting supplement or amendment.
5.13 Transaction Expenses of CFHC.
(a) For planning purposes, CFHC shall, within 15
days from the date hereof, provide HUBCO with its estimated budget
of transaction-related expenses reasonably anticipated to be
payable by CFHC in connection with this transaction, including the
fees and expenses of counsel, accountants, investment bankers and
other professionals. CFHC shall promptly notify HUBCO if or when
it determines that it will expect to exceed its budget.
(b) Promptly after the execution of this
Agreement, CFHC shall ask all of its attorneys and other
professionals to render current and correct invoices for all
unbilled time and disbursements. CFHC shall accrue and/or pay all
of such amounts as soon as possible.
(c) CFHC shall advise HUBCO monthly of all out-of-
pocket expenses which CFHC has incurred in connection with this
transaction.
(d) HUBCO, in reasonable consultation with CFHC,
shall make all arrangements with respect to the printing and
mailing of the Proxy Statement-Prospectus.
5.14 Indemnification.
(a) For a period of six years after the Effective
Time, HUBCO shall indemnify, defend and hold harmless each person
who is now, or has been at any time prior to the date hereof or who
becomes prior to the Effective Time, a director, officer, employee
or agent of CFHC or Community or serves or has served at the
request of CFHC or Community in any capacity with any other person
(collectively, the "Indemnitees") against any and all claims,
damages, liabilities, losses, costs, charges, expenses (including,
without limitation, reasonable costs of investigation, and the
reasonable fees and disbursements of legal counsel and other
advisers and experts as incurred), judgments, fines, penalties and
amounts paid in settlement, asserted against, incurred by or
imposed upon any Indemnitee by reason of the fact that he or she is
or was a director, officer, employee or agent of CFHC or Community
or serves or has served at the request of CFHC or Community in any
capacity with any other person, in connection with, arising out of
or relating to (i) any threatened, pending or completed claim,
action, suit or proceeding (whether civil, criminal, administrative
or investigative), including, without limitation, any and all
claims, actions, suits, proceedings or investigations by or on
behalf of or in the right of or against CFHC or Community or any of
their respective affiliates, or by any shareholder of CFHC
(collectively, "Claims"), including, without limitation, any Claim
which is based upon, arises out of or in any way relates to the
Merger, this Agreement, any of the transactions contemplated by
this Agreement, the Indemnitee's service as a member of the Board
of Directors of CFHC or Community or of any committee of CFHC's or
Community's Board of Directors, the events leading up to the
execution of this Agreement, any statement, recommendation or
solicitation made in connection therewith or related thereto and
any breach of any duty in connection with any of the foregoing, or
(ii) the enforcement of the obligations of HUBCO set forth in this
Section 5.14, in each case to the fullest extent which CFHC or
Community would have been permitted under any applicable law, the
respective Certificate of Incorporation of CFHC or Community and
the respective By-Laws of CFHC or Community had the Merger not
occurred (and HUBCO shall also advance expenses as incurred to the
fullest extent so permitted). Notwithstanding the foregoing, HUBCO
shall not provide any indemnification not permitted by law nor
shall HUBCO advance expenses with respect to any Claim which
relates to a personal benefit improperly paid or provided, or
alleged to have been improperly paid or provided, to the
Indemnitee, but HUBCO shall reimburse the Indemnitee for costs
incurred by the Indemnitee with respect to such Claim when and if a
court of competent jurisdiction shall ultimately determine, and
such determination shall become final and nonappealable, that the
Indemnitee was not improperly paid or provided with the personal
benefit alleged in the Claim.
(b) From and after the Effective Time, HUBCO shall
assume and honor any obligation of CFHC or Community immediately
prior to the Effective Time with respect to the indemnification of
the Indemnitees arising out of the Certificate of Incorporation or
By-Laws of CFHC or Community as if such obligations were pursuant
to a contract or arrangement between HUBCO and such Indemnitees.
(c) In the event HUBCO or any of its successors or
assigns (i) reorganizes or consolidates with or merges into or
enters into another business combination transaction with any other
person or entity and is not the resulting, continuing or surviving
corporation or entity of such consolidation, merger or transaction,
or (ii) liquidates, dissolves or transfers all or substantially all
of its properties and assets to any person or entity, then, and in
each such case, proper provision shall be made so that the
successors and assigns of HUBCO assume the obligations set forth in
this Section 5.14.
(d) HUBCO shall cause CFHC's and Community's
officers and directors to be covered under HUBCO's then current
officers' and directors' liability insurance policy for a period of
six years after the Effective Time, or, in the alternative, to be
covered under an extension of CFHC's and Community's existing
officers' and directors' liability insurance policy. However,
HUBCO shall only be required to insure such persons upon terms and
for coverages substantially similar to CFHC's and Community's
existing officers' and directors' liability insurance.
(e) Any Indemnitee wishing to claim
indemnification under this Section 5.14 shall promptly notify HUBCO
upon learning of any Claim, but the failure to so notify shall not
relieve HUBCO of any liability it may have to such Indemnitee if
such failure does not materially prejudice HUBCO. In the event of
any Claim (whether arising before or after the Effective Time) as
to which indemnification under this Section 5.14 is applicable,
(x) HUBCO shall have the right to assume the defense thereof and
HUBCO shall not be liable to such Indemnitees for any legal
expenses of other counsel or any other expenses subsequently
incurred by such Indemnitee in connection with the defense thereof,
except that if HUBCO elects not to assume such defense, or counsel
for the Indemnitees advises that there are issues which raise
conflicts of interest between HUBCO and the Indemnitees, the
Indemnitees may retain counsel satisfactory to them, and HUBCO
shall pay the reasonable fees and expenses of such counsel for the
Indemnitees as statements therefor are received; provided, however,
that HUBCO shall be obligated pursuant to this Section 5.14(e) to
pay for only one firm of counsel for all Indemnitees in any
jurisdiction with respect to a matter unless the use of one counsel
for multiple Indemnitees would present such counsel with a conflict
of interest that is not waived, and (y) the Indemnitees will
cooperate in the defense of any such matter. HUBCO shall not be
liable for settlement of any claim, action or proceeding hereunder
unless such settlement is effected with its prior written consent.
Notwithstanding anything to the contrary in this Section 5.14,
HUBCO shall not have any obligation hereunder to any Indemnitee
when and if a court of competent jurisdiction shall ultimately
determine, and such determination shall have become final and
nonappealable, that the indemnification of such Indemnitee in the
manner contemplated hereby is prohibited by applicable law or
public policy.
5.15 Bank Policies and Bank Merger. Notwithstanding
that CFHC believes that it has established all reserves and taken
all provisions for possible loan losses required by GAAP and
applicable laws, rules and regulations, CFHC recognizes that HUBCO
may have adopted different loan, accrual and reserve policies
(including loan classifications and levels of reserves for possible
loan losses). From and after the date of this Agreement to the
Effective Time and in order to formulate the plan of integration
for the Bank Merger, CFHC and HUBCO shall consult and cooperate
with each other with respect to (i) conforming to the extent
appropriate, based upon such consultation, CFHC's loan, accrual and
reserve policies and CFHC's other policies and procedures regarding
applicable regulatory matters, including without limitation Federal
Reserve, the National Bank Act, the Bank Secrecy Act and FDIC
matters, to those policies of HUBCO as HUBCO may reasonably
identify to CFHC from time to time, (ii) new extensions of credit
or material revisions to existing terms of credits by Bank, in each
case where the aggregate exposure exceeds $500,000, and
(iii) conforming, based upon such consultation, the composition of
the investment portfolio and overall asset/liability management
position of CFHC and Community to the extent appropriate; provided
that any required change in CFHC's practices in connection with the
matters described in clause (i) or (iii) above need not be effected
until the parties receive all necessary governmental approvals and
consents to consummate the transactions contemplated hereby.
5.16 Compliance with Antitrust Laws. Each of HUBCO and
CFHC shall use its reasonable best efforts to resolve such
objections, if any, which may be asserted with respect to the
Merger under antitrust laws, including, without limitation, the
Hart-Scott-Rodino Act. In the event a suit is threatened or
instituted challenging the Merger as violative of antitrust laws,
each of HUBCO and CFHC shall use its reasonable best efforts to
avoid the filing of, resist or resolve such suit. HUBCO and CFHC
shall use their reasonable best efforts to take such action as may
be required: (a) by the Antitrust Division of the Department of
Justice or the Federal Trade Commission in order to resolve such
objections as either of them may have to the Merger under antitrust
laws, or (b) by any federal or state court of the United States, in
any suit brought by a private party or governmental entity
challenging the Merger as violative of antitrust laws, in order to
avoid the entry of, or to effect the dissolution of, any
injunction, temporary restraining order, or other order which has
the effect of preventing the consummation of the Merger.
Reasonable best efforts shall include, but not be limited to, the
proffer by HUBCO of its willingness to accept an order agreeing to
the divestiture, or the holding separate, of any assets of HUBCO or
CFHC, except to the extent that any such divestitures or holding
separate arrangement would have a material adverse effect on HUBCO.
The entry by a court, in any suit brought by a private party or
governmental entity challenging the Merger as violative of
antitrust laws, of an order or decree permitting the Merger, but
requiring that any of the businesses, product lines or assets of
HUBCO or CFHC be divested or held separate thereafter shall not be
deemed a failure to satisfy the conditions specified in Section 6.1
hereof except to the extent that any divestitures or holding
separate arrangement would have a material adverse effect on HUBCO
and HUBCO shall not have voluntarily consented to such divestitures
or holding separate arrangements. For the purposes of this
Section 5.16, the divestiture or the holding separate of a branch
or branches of the Bank with, in the aggregate, less than
$450,000,000 in assets shall not be considered to have a material
adverse effect on HUBCO.
5.17 Pooling and Tax-Free Reorganization Treatment.
Prior to the date hereof, neither HUBCO or CFHC has taken any
action or failed to take any action which would disqualify the
Merger for pooling of interests accounting treatment. Before the
Effective Time, neither HUBCO nor CFHC shall intentionally take,
fail to take, or cause to be taken or not taken any action within
its control, which would disqualify the Merger as a "pooling-of-
interests" for accounting purposes or as a "reorganization" within
the meaning of Section 368(a) of the Code. Subsequent to the
Effective Time, HUBCO shall not take and shall cause the Surviving
Corporation not to take any action within their control that would
disqualify the Merger as such a "reorganization" under the Code.
5.18 Comfort Letters. HUBCO shall cause Arthur
Andersen, its independent public accountants, to deliver to CFHC,
and CFHC shall cause Peat Marwick, its independent public
accountants, to deliver to HUBCO and to its officers and directors
who sign the Registration Statement for this transaction, a short-
form "comfort letter" or "agreed upon procedures" letter, dated the
date of the mailing of the Proxy Statement-Prospectus for the
Shareholders Meeting of CFHC, in the form customarily issued by
such accountants at such time in transactions of this type.
5.19 Affiliates. CFHC has previously delivered to HUBCO
a letter identifying all persons who, to the knowledge of CFHC, may
be deemed to be affiliates of CFHC under Rule 145 of the 1933 Act
and the pooling-of-interests accounting rules, including, without
limitation, all directors and executive officers of CFHC.
Promptly, but in any event within two weeks, after the execution
and delivery of this Agreement, CFHC shall deliver to HUBCO copies
of letter agreements, each substantially in the form of
Exhibit 5.19-1, executed by each such person who has been
identified by CFHC in such letter as an affiliate of CFHC agreeing
to comply with Rule 145 and to refrain from transferring shares as
required by the pooling-of-interests accounting rules. Within two
weeks after the date hereof, HUBCO shall cause its directors and
executive officers to enter into letter agreements in the form of
Exhibit 5.19-2 with HUBCO concerning the pooling-of-interests
accounting rules. HUBCO hereby agrees to publish, or file a
Form 8-K, Form 10-K or Form 10-Q containing financial results
covering at least 30 days of post-Merger combined operations of
HUBCO and CFHC as soon as practicable (but in no event later than
30 days) following the close of the first calendar month ending
30 days after the Effective Time, in form and substance sufficient
to remove the restrictions set forth in paragraph "B" of
Exhibit 5.19-1.
5.20 Appointments and Employees. HUBCO agrees to
(i) cause Robert T. Pluese to be appointed to the Board of
Directors of the Surviving Bank and to use its best efforts to
cause Mr. Pluese to be re-elected to the Board of the Surviving
Bank for a period of three years, (ii) cause each director of
Community to be appointed as a member of an advisory board of the
New Division for a period of three years and cause each such member
to receive fees for service on the advisory board equal to
$4,500.00 annually and (iii) cause Gerard M. Banmiller to be
appointed as Regional President of the New Division.
ARTICLE VI - CLOSING CONDITIONS
6.1 Conditions to Each Party's Obligations Under this
Agreement. The respective obligations of each party under this
Agreement to consummate the Merger shall be subject to the
satisfaction, or, where permissible under applicable law, waiver at
or prior to the Effective Time of the following conditions:
DMS Approval of CFHC Shareholders; SEC
Registration. This Agreement and the transactions contemplated
hereby shall have been approved by the requisite vote of the
shareholders of CFHC. The HUBCO Registration Statement shall have
been declared effective by the SEC and shall not be subject to a
stop order or any threatened stop order, and the issuance of the
HUBCO Common Stock shall have been qualified in every state where
such qualification is required under the applicable state
securities laws.
(b) Regulatory Filings. All necessary regulatory
or governmental approvals and consents (including without
limitation any required approval of the FDIC, the Department, the
FRB, the OCC, the SEC and the DEP) required to consummate the
transactions contemplated hereby shall have been obtained without
any term or condition which would materially impair the value of
CFHC and Community, taken as a whole, to HUBCO. All conditions
required to be satisfied prior to the Effective Time by the terms
of such approvals and consents shall have been satisfied; and all
statutory waiting periods in respect thereof (including the Hart-
Scott-Rodino waiting period if applicable) shall have expired.
(c) Suits and Proceedings. No order, judgment or
decree shall be outstanding against a party hereto or a third party
that would have the effect of preventing completion of the Merger;
no suit, action or other proceeding shall be pending or threatened
by any governmental body in which it is sought to restrain or
prohibit the Merger; and no suit, action or other proceeding shall
be pending before any court or governmental agency in which it is
sought to restrain or prohibit the Merger or obtain other
substantial monetary or other relief against one or more parties
hereto in connection with this Agreement and which HUBCO or CFHC
determines in good faith, based upon the advice of their respective
counsel, makes it inadvisable to proceed with the Merger because
any such suit, action or proceeding has a significant potential to
be resolved in such a way as to deprive the party electing not to
proceed of any of the material benefits to it of the Merger.
(d) Tax Opinion. HUBCO shall have received an
opinion, dated as of the Effective Time, of Pitney, Hardin, Kipp &
Szuch, reasonably satisfactory in form and substance to HUBCO, and
CFHC shall have received an opinion, dated as of the Effective
Time, of Stevens & Lee reasonably satisfactory in form and
substance to CFHC, in each case based upon representation letters
reasonably required by such counsel, dated on or about the date of
such opinion, and such other facts and representations as such
counsel may reasonably deem relevant, to the effect that
(i) the Merger will be treated for federal
income tax purposes as a reorganization qualifying under the
provisions of Section 368 of the Code;
(ii) no gain or loss will be recognized by
CFHC;
(iii) no gain or loss will be recognized by
the holders of CFHC Common Stock upon the exchange of CFHC
Common Stock solely for HUBCO Common Stock;
(iv) the tax basis of any HUBCO Common Stock
received in exchange for CFHC Common Stock shall equal the
basis of the recipient's CFHC Common Stock surrendered on the
exchange, reduced by the amount of cash received, if any, on
the exchange, and increased by the amount of the gain
recognized, if any, on the exchange (whether characterized as
dividend or capital gain income); and
(v) the holding period for any HUBCO Common
Stock received in exchange for CFHC Common Stock will include
the period during which CFHC Common Stock surrendered on the
exchange was held, provided such stock was held as a capital
asset on the date of the exchange.
(e) Pooling of Interests. HUBCO shall have
received a letter, dated the Closing Date, from its accountants,
Arthur Andersen, reasonably satisfactory to HUBCO and CFHC, to the
effect that the Merger shall be qualified to be treated by HUBCO as
a pooling-of-interests for accounting purposes.
6.2 Conditions to the Obligations of HUBCO Under this
Agreement. The obligations of HUBCO under this Agreement shall be
further subject to the satisfaction or waiver, at or prior to the
Effective Time, of the following conditions:
(a) Representations and Warranties; Performance of
Obligations of CFHC and Community. Except for those
representations which are made as of a particular date, the
representations and warranties of CFHC contained in this Agreement
shall be true and correct in all material respects on the Closing
Date as though made on and as of the Closing Date. CFHC shall
have performed in all material respects the agreements, covenants
and obligations to be performed by it prior to the Closing Date.
With respect to any representation or warranty which as of the
Closing Date has required a supplement or amendment to the CFHC
Disclosure Schedule to render such representation or warranty true
and correct in all material respects as of the Closing Date, the
representation and warranty shall be deemed true and correct as of
the Closing Date only if (i) the information contained in the
supplement or amendment to the Disclosure Schedule related to
events occurring following the execution of this Agreement and
(ii) the facts disclosed in such supplement or amendment would not
either alone, or together with any other supplements or amendments
to the CFHC Disclosure Schedule, materially adversely affect the
representation as to which the supplement or amendment relates.
(b) Opinion of Counsel. HUBCO shall have received
an opinion of counsel to CFHC, dated the Closing Date, in form and
substance reasonably satisfactory to HUBCO, substantially in
accordance with Exhibit 6.2(b) hereto.
(c) Certificates. CFHC shall have furnished HUBCO
with such certificates of its officers or other documents to
evidence fulfillment of the conditions set forth in this
Section 6.2 as HUBCO may reasonably request.
(d) Legal Fees. CFHC shall have furnished HUBCO
with letters from all attorneys representing CFHC and Community in
any matters confirming that all legal fees have been paid in full
for services rendered as of the Effective Time.
(e) Merger Related Expense. CFHC shall have
provided HUBCO with an accounting of all merger related expenses
incurred by it through the Closing Date, including a good faith
estimate of such expenses incurred but as to which invoices have
not been submitted as of the Closing Date.
6.3 Conditions to the Obligations of CFHC Under this
Agreement. The obligations of CFHC under this Agreement shall be
further subject to the satisfaction or waiver, at or prior to the
Effective Time, of the following conditions:
(a) Representations and Warranties; Performance of
Obligations of HUBCO. Except for those representations which are
made as of a particular date, the representations and warranties
of HUBCO contained in this Agreement shall be true and correct in
all material respects on the Closing Date as though made on and as
of the Closing Date. HUBCO shall have performed in all material
respects, the agreements, covenants and obligations to be performed
by it prior to the Closing Date. With respect to any
representation or warranty which as of the Closing Date has
required a supplement or amendment to the HUBCO Disclosure Schedule
to render such representation or warranty true and correct in all
material respects as of the Closing Date, the representation and
warranty shall be deemed true and correct as of the Closing Date
only if (i) the information contained in the supplement or
amendment to the Disclosure Schedule related to events occurring
following the execution of this Agreement and (ii) the facts
disclosed in such supplement or amendment would not either alone,
or together with any other supplements or amendments to the HUBCO
Disclosure Schedule, materially adversely effect the representation
as to which the supplement or amendment relates.
(b) Opinion of Counsel to HUBCO. CFHC shall have
received an opinion of counsel to HUBCO, dated the Closing Date, in
form and substance reasonably satisfactory to CFHC, substantially
in accordance with Exhibit 6.3(b) hereto.
(c) Fairness Opinion. CFHC shall have received an
opinion from Berwind, dated no more than three days prior to the
date the Proxy Statement-Prospectus is mailed to CFHC's
shareholders (and if it shall become necessary to resolicit proxies
thereafter, dated no more than three days prior to the date of any
substantive amendment to the Proxy Statement-Prospectus), to the
effect that, in its opinion, the consideration to be paid to
shareholders of CFHC hereunder is fair to such shareholders from a
financial point of view ("Fairness Opinion").
(d) Certificates. HUBCO shall have furnished CFHC
with such certificates of its officers or others and such other
documents to evidence fulfillment of the conditions set forth in
this Section 6.3 as CFHC may reasonably request.
(e) Officer and Director. Robert T. Pluese shall
be appointed by the Board of Directors of the Bank to the Surviving
Bank's Board of Directors and Gerard M. Banmiller shall be
appointed as Regional President of the New Division, effective at
the Effective Time.
ARTICLE VII - TERMINATION, AMENDMENT AND WAIVER
7.1 Termination. This Agreement may be terminated
prior to the Effective Time, whether before or after approval of
this Agreement by the shareholders of CFHC:
(a) by mutual written consent of the parties
hereto;
(b) by HUBCO or CFHC (i) if the Effective Time
shall not have occurred on or prior to the Cutoff Date unless the
failure of such occurrence shall be due to the failure of the party
seeking to terminate this Agreement to perform or observe its
agreements set forth herein to be performed or observed by such
party at or before the Effective Time, or (ii) if a vote of the
shareholders of CFHC is taken and such shareholders fail to approve
this Agreement at the meeting (or any adjournment or postponement
thereof) held for such purpose, or (iii) if a vote of the
shareholders of HUBCO is required by applicable NASDAQ rules, such
vote is taken and such shareholders fail to approve this Agreement
at the meeting (or any adjournment or postponement thereof) held
for such purpose;
(c) by HUBCO or CFHC upon written notice to the
other if any application for regulatory or governmental approval
necessary to consummate the Merger and the other transactions
contemplated hereby shall have been denied or withdrawn at the
request or recommendation of the applicable regulatory agency or
Governmental Entity or by HUBCO upon written notice to CFHC if any
such application is approved with conditions (other than conditions
which are customary in such regulatory approvals) which would have
a Material Adverse Effect on HUBCO;
(d) by HUBCO if (i) there shall have occurred a
change in the business, operations, assets, or financial condition
of CFHC and Community, taken as a whole, from that disclosed by
CFHC in CFHC's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1997 which change shall have resulted in a material
adverse effect on CFHC or (ii) there was a material breach in any
representation, warranty, covenant, agreement or obligation of CFHC
hereunder and such breach shall not have been remedied within 30
days after receipt by CFHC of notice in writing from HUBCO to CFHC
specifying the nature of such breach and requesting that it be
remedied, provided, that those matters disclosed in the CFHC
Disclosure Schedule shall not be deemed to have caused such a
material adverse effect and for the purposes of this Section 7.1(d)
only, the term material adverse effect shall not be deemed to
include the impact of any changes in the business, operations,
assets or financial condition of CFHC or Community, taken as a
whole, resulting from (x) changes in interest rates and economic
conditions affecting banking institutions generally, (y) changes in
banking and similar laws of general applicability or
interpretations thereof by courts or governmental authorities, and
(z) changes in generally accepted accounting principles or
regulatory accounting requirements applicable to banks and bank
holding companies;
(e) by CFHC, if (i) there shall have occurred a
change in the business, operations, assets or financial condition
of HUBCO and the HUBCO Subsidiaries taken as a whole from that
disclosed by HUBCO in HUBCO's Annual Report on Form 10-K for the
year ended December 31, 1996 and Quarterly Report on Form 10-Q for
the nine month period ending September 30, 1997 except for the
Effects of Announced Acquisitions, which change shall have resulted
in a material adverse effect on HUBCO (it being understood that
those matters disclosed in the HUBCO Disclosure Schedule shall not
be deemed to have caused such a material adverse effect); or
(ii) there was a material breach in any representation, warranty,
covenant, agreement or obligation of HUBCO hereunder and such
breach shall not have been remedied within 30 days after receipt by
HUBCO of notice in writing from CFHC specifying the nature of such
breach and requesting that it be remedied, provided, that those
matters disclosed in the HUBCO Disclosure Schedule shall not be
deemed to have caused such a material adverse effect and for the
purposes of this Section 7.1(e) only, the term material adverse
effect shall not be deemed to include the impact of any changes in
the business, operations, assets or financial condition of HUBCO or
the Bank, taken as a whole, resulting from (x) changes in interest
rates and economic conditions affecting banking institutions
generally, (y) changes in banking and similar laws of general
applicability or interpretations thereof by courts or governmental
authorities, and (z) changes in generally accepted accounting
principles or regulatory accounting requirements applicable to
banks and bank holding companies;
(f) by CFHC, if CFHC's Board of Directors shall
have approved an Acquisition Transaction after determining, upon
advice of counsel, that such approval was necessary in the exercise
of its fiduciary obligations under applicable laws;
(g) by HUBCO if the conditions set forth in
Section 6.2 are not satisfied and are not capable of being
satisfied by the Cutoff Date; or
(h) by CFHC if the conditions set forth in
Section 6.3 are not satisfied and are not capable of being
satisfied by the Cutoff Date;
(i) by CFHC, in accordance with Section 2.1(a).
7.2 Effect of Termination. In the event of the
termination and abandonment of this Agreement by either HUBCO or
CFHC pursuant to Section 7.1, this Agreement (other than
Section 5.5(b), the penultimate sentence of Section 5.6(h), this
Section 7.2 and Section 8.1) shall forthwith become void and have
no effect, without any liability on the part of any party or its
officers, directors or shareholders. Nothing contained herein,
however, shall relieve any party from any liability for any breach
of this Agreement.
7.3 Amendment. This Agreement may be amended by action
taken by the parties hereto at any time before or after adoption of
this Agreement by the shareholders of CFHC but, after any such
adoption, no amendment shall be made which reduces the amount or
changes the form of the consideration to be delivered to the
shareholders of CFHC without the approval of such shareholders.
This Agreement may not be amended except by an instrument in
writing signed on behalf of all the parties hereto.
7.4 Extension; Waiver. The parties may, at any time
prior to the Effective Time of the Merger, (i) extend the time for
the performance of any of the obligations or other acts of the
other parties hereto; (ii) waive any inaccuracies in the
representations and warranties contained herein or in any document
delivered pursuant thereto; or (iii) waive compliance with any of
the agreements or conditions contained herein. Any agreement on
the part of any party to any such extension or waiver shall be
valid only if set forth in an instrument in writing signed on
behalf of such party against which the waiver is sought to be
enforced.
ARTICLE VIII - MISCELLANEOUS
8.1 Expenses.
(a) Except as otherwise expressly stated herein,
all costs and expenses incurred in connection with this Agreement
and the transactions contemplated hereby (including legal,
accounting and investment banking fees and expenses) shall be borne
by the party incurring such costs and expenses. Notwithstanding
the foregoing, HUBCO shall bear all expenses of the financial
printer in connection with the Registration Statement and the Proxy
Statement-Prospectus and HUBCO may bear the expenses of the Bank
and CFHC may bear the expenses of Community.
(b) Notwithstanding any provision in this
Agreement to the contrary, in the event that either of the parties
shall willfully default in its obligations hereunder, the non-
defaulting party may pursue any remedy available at law or in
equity to enforce its rights and shall be paid by the willfully
defaulting party for all damages, costs and expenses, including
without limitation legal, accounting, investment banking and
printing expenses, incurred or suffered by the non-defaulting party
in connection herewith or in the enforcement of its rights
hereunder.
8.2 Survival. The respective representations,
warranties, covenants and agreements of the parties to this
Agreement shall not survive the Effective Time, but shall terminate
as of the Effective Time, except for Article II, this Section 8.2
and Sections 5.5(b), 5.8(a) and 5.14.
8.3 Notices. All notices or other communications which
are required or permitted hereunder shall be in writing and
sufficient if delivered personally or by reputable overnight
courier or sent by registered or certified mail, postage prepaid,
as follows:
(a) If to HUBCO, to:
HUBCO, Inc.
1000 MacArthur Boulevard
Mahwah, NJ 07430
Attn.: Kenneth T. Neilson, President and
Chief Executive Officer
Copy to:
HUBCO, Inc.
1000 MacArthur Boulevard
Mahwah, NJ 07430
Attn.: D. Lynn Van Borkulo-Nuzzo, Esq.
And copy to:
Pitney, Hardin, Kipp & Szuch
(mail to) P.O. Box 1945
Morristown, NJ 07962
(deliver to) 200 Campus Drive
Florham Park, NJ 07932
Attn.: Ronald H. Janis, Esq.
Michael W. Zelenty, Esq.
(b) If to CFHC, to:
Community Financial Holding Company
222 Haddon Avenue
Westmont, NJ 08108
Attn.: Robert T. Pluese, Chairman
Copy to:
Stevens & Lee
1415 Route 70 East, Suite 506
Cherry Hill, NJ 08034
Attn.: Jeffrey P. Waldron, Esq.
Edward C. Hogan, Esq.
or such other addresses as shall be furnished in writing by any
party, and any such notice or communications shall be deemed to
have been given as of the date actually received.
8.4 Parties in Interest; Assignability. This Agreement
shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns. Nothing in
this Agreement is intended to confer, expressly or by implication,
upon any other person any rights or remedies under or by reason of
this Agreement except the Indemnitees described in Section 5.14.
This Agreement and the rights and obligations of the parties
hereunder may not be assigned.
8.5 Entire Agreement. This Agreement, which includes
the Disclosure Schedules hereto and the other documents, agreements
and instruments executed and delivered pursuant to or in connection
with this Agreement, contains the entire Agreement between the
parties hereto with respect to the transactions contemplated by
this Agreement and supersedes all prior negotiations, arrangements
or understandings, written or oral, with respect thereto, other
than any confidentiality agreements entered into by the parties
hereto.
8.6 Counterparts. This Agreement may be executed in
one or more counterparts, all of which shall be considered one and
the same agreement and each of which shall be deemed an original.
8.7 Governing Law. This Agreement shall be governed by
the laws of the State of New Jersey, without giving effect to the
principles of conflicts of laws thereof.
8.8 Descriptive Headings. The descriptive headings of
this Agreement are for convenience only and shall not control or
affect the meaning or construction of any provision of this
Agreement.
IN WITNESS WHEREOF, HUBCO, the Bank, CFHC and Community
have caused this Agreement to be executed by their duly authorized
officers as of the day and year first above written.
ATTEST: HUBCO, INC.
By: /s/ D. Lynn Van Borkulo-Nuzzo By: /s/ Kenneth T. Neilson
D. Lynn Van Borkulo-Nuzzo, Kenneth T. Neilson,
Secretary President Secretary and
Chief Executive Officer
ATTEST: COMMUNITY FINANCIAL HOLDING
CORPORATION
By: /s/ Kevin Kutcher By: /s/ Gerard M. Banmiller
Kevin Kutcher Gerard M. Banmiller
Secretary
ATTEST: HUDSON UNITED BANK
By: /s/ D. Lynn Van Borkulo-Nuzzo By: /s/ Kenneth T. Neilson
D. Lynn Van Borkulo-Nuzzo, Kenneth T. Neilson,
Secretary President and Chief
Executive Officer
ATTEST: COMMUNITY NATIONAL BANK
By: /s/ Kevin Kutcher By: /s/ Gerard M. Banmiller
Kevin Kutcher Gerard M. Banmiller
Secretary<PAGE>
CERTIFICATE OF THE DIRECTORS OF COMMUNITY FINANCIAL
HOLDING CORPORATION AND COMMUNITY NATIONAL BANK
Reference is made to the Agreement and Plan of Merger,
dated as of March 2, 1998 (the "Agreement"), among HUBCO, Inc.,
Hudson United Bank, Community Financial Holding Corporation and
Community National Bank. Capitalized terms used herein have the
meanings given to them in the Agreement.
Each of the following persons, being all of the
directors of CFHC and Community, agrees to vote or cause to be
voted all shares of CFHC Common Stock which are held by such
person, or over which such person exercises full voting control, in
favor of the Merger, unless prior to such vote CFHC's Board of
Directors makes the determination described in clause (y) of
Section 5.7 of the Agreement.
/s/ Elizabeth Burns /s/ Frank Smith
Elizabeth Burns Frank Smith
/s/ Michael Brennan /s/ Marvin Samson
Michael Brennan Marvin Samson
/s/ Gerald DeFelicis /s/ Robert T. Pluese
Gerald DeFelicis Robert T. Pluese
/s/ Letitia Colombi /s/ Doris Damm
Letitia Colombi Doris Damm
/s/ Gerard M. Banmiller /s/ Joseph Riggs
Gerard M. Banmiller Joseph Riggs
Dated: As of March 2, 1998
<PAGE>
EXHIBIT 1.7
SUBSIDIARY AGREEMENT AND PLAN OF MERGER
This Subsidiary Agreement and Plan of Merger (this
"Agreement") is dated as of March __, 1998, among HUDSON UNITED
BANK (the "Bank"), a New Jersey state-chartered banking corporation
and a wholly-owned subsidiary of HUBCO, Inc., a New Jersey
corporation ("Parent"), and COMMUNITY NATIONAL BANK ("Community"),
a federally-chartered banking association and a wholly-owned
subsidiary of Community Financial Holding Corporation, a New Jersey
corporation ("CFHC"). The principal office of the Bank is located
at 3100 Bergenline Avenue, Union City, New Jersey. The Bank has
capital of $________, divided into _______ shares of common stock,
each of par value $___ per share (the "Bank Common Stock"), capital
surplus of $________ and undivided profits, including capital
reserves, of $_________, as of December 31, 1997. The principal
office of Community is located at ________________________________,
New Jersey. Community has capital of $_________ divided into ____
shares of common stock, each of $____ par value (the "Community
Common Stock"), capital surplus of $_________ and undivided
profits, including capital reserves, of $_________, as of
December 31, 1997.
WHEREAS, the respective Board of Directors of Parent,
CFHC, the Bank and Community has approved, and deem it advisable
and in the best interests of their respective shareholders to
consummate, the business combination transaction between Parent and
CFHC set forth in the Agreement and Plan of Merger, dated as of
February __, 1998 (the "Parent Merger Agreement"), by and among
Parent, CFHC, the Bank and Community, pursuant to which CFHC will
merge with and into Parent (the "Parent Merger"); and
WHEREAS, not less than a majority of each of the Boards
of Directors of the Bank and Community have approved, and deem it
advisable to consummate, the subsidiary merger provided for herein
(the "Subsidiary Merger") and in the Parent Merger Agreement, in
accordance with the provisions of applicable law;
NOW, THEREFORE, in consideration of the foregoing and
the respective representations, warranties, covenants and
agreements set forth herein and in the Parent Merger Agreement, and
intending to be legally bound hereby, the parties hereto agree as
follows:
ARTICLE I
THE MERGER
1.1 Effective Time of the Subsidiary Merger. Subject
to the provisions of this Agreement, the Subsidiary Merger shall
become effective in accordance with the terms of the Certificate of
Merger pursuant to N.J.S.A. 17:9A-137 (the "Certificate of Merger")
which shall be filed with the New Jersey Department of Banking and
Insurance (the "Banking Department") and the written notice
regarding the consummation of the Subsidiary Merger (the "Notice")
which shall be filed with the Office of the Comptroller of the
Currency (the "OCC") immediately following the Effective Time (as
defined in Section 1.6 of the Parent Merger Agreement). The term
"Subsidiary Merger Effective Time" shall be the date and time when
the Subsidiary Merger becomes effective, as set forth in the
Certificate of Merger and the Notice.
1.2 Closing. Notwithstanding anything to the contrary
contained in the Parent Merger Agreement, the closing of the
Subsidiary Merger will take place immediately subsequent to the
Parent Merger on the date and at the location specified in the
Parent Merger Agreement with respect to the Parent Merger or at
such other time, date or place as may be agreed to by the parties
hereto (the "Closing Date").
1.3. Effect of the Subsidiary Merger.
(a) At the Subsidiary Merger Effective Time:
(i) the separate existence of Community shall
cease and Community shall be merged with and into the Bank
(the Bank is sometimes referred to as herein as the "Surviving
Bank"), except that at the Effective Time the business of
Community shall be operated as a division of the Surviving
Bank called "Community National Division of Hudson United
Bank" or such other similar name as agreed to by the parties
(the "New Division");
(ii) the Certificate of Incorporation of the
Bank as in effect immediately prior to the Subsidiary Merger
Effective Time shall be the Certificate of Incorporation of
the Surviving Bank until duly amended in accordance with
applicable law, and the name of the Surviving Bank shall be
Hudson United Bank;
(iii) the Bylaws of the Bank as in effect
immediately prior to the Subsidiary Merger Effective Time
shall be the Bylaws of the Surviving Bank;
(iv) the main office and branch offices of
the Bank established and authorized immediately prior to the
Subsidiary Merger Effective Time and listed on Exhibit A
attached hereto and the main office and branch offices of
Community established and authorized immediately prior to the
Subsidiary Merger Effective Time and listed on Exhibit B
attached hereto shall become established and authorized branch
offices of the Surviving Bank;
(v) the directors of the Bank immediately
prior to the Subsidiary Merger Effective Time and Robert T.
Pluese who will be appointed by the Bank at the Subsidiary
Merger Effective Time, shall be the directors of the Surviving
Bank, each to hold office in accordance with the Certificate
of Incorporation and Bylaws of the Surviving Bank until their
respective successors are duly elected or appointed and
qualified (the names of the directors of the Surviving Bank
are listed on Exhibit C attached hereto);
(vi) the executive officers of the Bank
immediately prior to the Subsidiary Merger Effective Time
shall be the executive officers of the Surviving Bank, each to
hold office in accordance with the Certificate of
Incorporation and Bylaws of the Surviving Bank until their
respective successors are duly elected or appointed and
qualified (the names of the executive officers of the
Surviving Bank are listed on Exhibit D attached hereto); and
(vii) an advisory board to the New Division
shall be created and such other appointments shall be made
pursuant to Section 5.20 of the Parent Merger Agreement.
(b) At and after the Subsidiary Merger Effective
Time, the Subsidiary Merger shall have all the effects set forth in
N.J.S.A. 17:9A-139 and 12 U.S.C. 214a and, in connection therewith,
all assets of the Bank and Community as they exist at the
Subsidiary Merger Effective Time shall pass to and vest in the
Surviving Bank without any conveyance or other transfer. The
Surviving Bank shall be responsible for all liabilities and
obligations of every kind and description of each of Community and
the Bank existing as of the Subsidiary Merger Effective Time,
whether matured or unmatured, accrued, absolute, contingent or
otherwise, and whether or not reflected or reserved against on
balance sheets, books of account or records of Community or the
Bank.
(c) The business of the Surviving Bank shall be
that of a New Jersey banking corporation, which shall be conducted
as its headquarters or main office at 3100 Bergenline Avenue, Union
City, New Jersey and its established and authorized branch offices
which are listed on Exhibits A and B.
ARTICLE II
EFFECT OF THE SUBSIDIARY MERGER ON THE CAPITAL
OF THE CONSTITUENT BANKS; EXCHANGE OF CERTIFICATES
2.1 Effect on Community Capital Stock. At the
Subsidiary Merger Effective Time, by virtue of the Subsidiary
Merger and without any action on the part of the holder of any
shares of Community Common Stock, all shares of Community Common
Stock (other than shares of Community Common Stock that are owned
by Community as treasury stock) shall become and be converted into
the right to receive that number of shares of common stock, ___ par
value of the Bank as shall in the aggregate have a fair market
value equal to the fair market value of the shares of Community
Common Stock being exchanged at the Subsidiary Merger Effective
Time. All shares of Community Common Stock that are owned by
Community as treasury stock shall automatically be canceled and
retired and shall cease to exist and no stock of the Bank or other
consideration shall be delivered in exchange therefor.
2.2 The Bank Common Stock. The shares of the Bank
Common Stock issued and outstanding immediately prior to the
Subsidiary Merger Effective Time shall remain outstanding and
unchanged after the Subsidiary Merger.
2.3 Capital of Surviving Bank. The amount of capital
stock of the Surviving Bank immediately following the Subsidiary
Merger Effective Time shall be $_________, divided into ________
shares of common stock, each of $____ par value, and immediately
following the Subsidiary Merger Effective Time, the Surviving Bank
shall have a surplus of $_________ and undivided profits, including
capital reserves, which, when combined with the capital and
surplus, will be equal to the combined capital structures of
Community and the Bank referred to in the preamble of this
Agreement, adjusted, however, for normal earnings and expenses
between December 31, 1997 and the Subsidiary Merger Effective Time.
ARTICLE III
COVENANTS
3.1 Covenants of the Bank and Community. During the
period from the date of this Agreement and continuing until the
Subsidiary Merger Effective Time, each of the parties hereto agrees
to observe and perform all agreements and covenants of Parent,
CFHC, the Bank and Community in the Parent Merger Agreement that
pertain or are applicable to the Bank and Community, respectively.
Each of the parties hereto agrees to use all reasonable efforts to
take, or cause to be taken, all action and to do, or cause to be
done, all things necessary, proper or advisable under applicable
laws and regulations to consummate and make effective the
transactions contemplated by this Agreement, subject to and in
accordance with the applicable provisions of the Parent Merger
Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
4.1 Conditions to Each Party's Obligation To Effect the
Subsidiary Merger. The respective obligations of each party to
effect the Subsidiary Merger shall be subject to the satisfaction
prior to the Closing Date of the following conditions:
(a) Satisfaction of Conditions. Each condition to
consummation of the Parent Merger contained in the Parent Merger
Agreement shall have been satisfied (or waived by the party or
parties entitled to assert such condition), and each party shall
have received a certificate from the other party to the effect that
all of the conditions to its obligation to consummate the Parent
Merger contained in the Parent Merger Agreement have been satisfied
or waived.
(b) No Injunctions or Restraints; Illegality. No
order, injunction or decree issued by any court or agency of
competent jurisdiction or other legal restraint or prohibition
preventing the consummation of the Subsidiary Merger shall be in
effect. No statute, rule, regulation, order, injunction or decree
shall have been enacted, entered, promulgated or enforced by any
Governmental Entity which prohibits, restricts or makes illegal the
consummation of the Subsidiary Merger.
(c) Shareholder Approvals. This Agreement and the
transactions contemplated hereby shall have been duly approved,
ratified and confirmed in accordance with applicable law and the
respective certificate of incorporation and By-Laws of Community
and the Bank by the affirmative vote of the shareholders of
Community and the Bank, such vote adopted at a meeting of each such
sole shareholder or by each such shareholder's written consent in
lieu thereof.
(d) Other Approvals. Other than the filings and
approvals provided for by Section 1.1, all requisite regulatory
approvals relating to the Subsidiary Merger shall have been filed,
occurred or been obtained and shall continue to be in full force
and effect. In addition, all consents, approvals and permits of
and notices to non-governmental third parties that are necessary to
consummate the Subsidiary Merger shall have been filed, occurred or
been obtained and shall continue to be in full force and effect.
ARTICLE V
TERMINATION AND AMENDMENT
5.1 Termination. This Agreement shall be terminated
immediately and without any action on the part of Community or the
Bank upon termination of the Parent Merger Agreement. This
Agreement may be terminated at any time prior to the Subsidiary
Merger Effective Time by mutual consent of the Bank and Community
in a written instrument, if the Board of Directors of each so
determines by a vote of a majority of the members of its entire
board.
5.2 Effect of Termination. In the event of termination
of this Agreement as provided in Section 5.1, this Agreement shall
forthwith become void and there shall be no liability or obligation
under this Agreement on the part of the Bank, Community or their
respective officers, directors or affiliates.
5.3 Amendment. This Agreement may be amended by the
parties hereto, by action taken or authorized by their respective
Boards of Directors. This Agreement may not be amended except by
an instrument in writing signed on behalf of each of the parties
hereto.
ARTICLE VI
GENERAL PROVISIONS
6.1 Definitions. All capitalized terms which are used
but not defined herein shall have the meanings set forth in the
Parent Merger Agreement.
6.2 Nonsurvival of Agreements. None of the agreements
in this Agreement or in any instrument delivered pursuant to this
Agreement shall survive the Effective Time, except to the extent
set forth in the Parent Merger Agreement.
6.3 Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given if
delivered personally, telecopied (with confirmation) or mailed by
registered or certified mail (return receipt requested) to the Bank
or Community, respectively, at the addresses for notices to Parent
or CFHC, respectively, as set forth in the Parent Merger Agreement,
with copies to the persons referred to therein.
6.4 Counterparts. This Agreement may be adopted,
certified and executed in separate counterparts, each of which
shall be considered one and the same agreement and shall become
effective when all counterparts have been signed by each of the
parties and delivered to the other party, it being understood that
both parties need not sign the same counterpart.
6.5 Entire Agreement. Except as otherwise set forth in
this Agreement or the Parent Merger Agreement (including the
documents and the instruments referred to herein or therein), this
Agreement constitutes the entire agreement, and supersedes all
prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter hereof.
6.6 Governing Law. This Agreement shall be governed
and construed in accordance with the laws of the State of New
Jersey without regard to any applicable conflicts of law.
6.7 Binding Effect. This Agreement is intended to be
binding on any successors of the parties.
6.8 Assignment. Except as provided herein, neither
this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by any of the parties hereto (whether
by operation of law or otherwise) without the prior written consent
of the other party.
<PAGE>
IN WITNESS WHEREOF, the Bank and Community have caused
this Agreement to be signed by their duly authorized officers,
under the respective seal of such entities, all as of the date
first above written.
ATTEST: HUDSON UNITED BANK
___________________________ __________________________________
D. Lynn Van Borkulo-Nuzzo, Kenneth T. Neilson, President and
Secretary Chief Executive Officer
ATTEST: COMMUNITY NATIONAL BANK
___________________________ __________________________________
By: Gerard M. Banmiller, President
Title:
<PAGE>
EXHIBIT A
Names and Locations of the Main Office
and Branch Offices of the Bank
<PAGE>
EXHIBIT B
Names and Locations of the Main
Office and Branch Offices of Community
<PAGE>
EXHIBIT C
Names of the Directors of the Surviving Bank
<PAGE>
EXHIBIT D
Names of the Executive Officers of the Surviving Bank
<PAGE>
EXHIBIT 5.11
COMMUNITY NATIONAL BANK
OFFICER AND STAFF SEVERANCE POLICY
(restated March 2, 1998)
If an employee employed as of the date of the close of
business on March 2, 1998 is terminated within 14 months subsequent
to the consummation of the merger between CFHC and HUBCO, other
than (i) termination for cause, death, disability, retirement or
voluntary termination on the part of the employee, or
(ii) termination of an employee covered under an employment
agreement with CFHC or HUBCO, then said employee shall be entitled
to the following lump sum payment, subject to applicable
withholding, at the date of termination:
Full Time Staff:
5 or more Years of Service at Time of Termination -
2 weeks Salary for each Year of Service
0 to 5 Years of Service at Time of Termination -
1 week Salary for each one Year of Service
Part Time Staff:
Same as above except based on hours worked
For the purpose of this Officer and Staff Severance Policy,
the term "termination for cause" shall mean a termination upon ten
days written notice to the employee as a result of the employee's
(i) willful misconduct, (ii) intentional breach of fiduciary duty
involving personal profit, (iii) intentional refusal to perform
material stated duties, (iv) willful violation of any law, rule, or
regulation (other than traffic violations or similar offenses) or
final cease-and-desist order.
<PAGE>
EXHIBIT 5.19-1
FORM OF CFHC AFFILIATE LETTER
March __, 1998
HUBCO, Inc.
[ADDRESS]
Gentlemen:
I am delivering this letter to you in connection with the
proposed acquisition (the "Merger") of Community Financial Holding
Corporation (the "Company"), by HUBCO, Inc., a New Jersey
corporation and registered bank holding company ("HUBCO"), pursuant
to the Agreement and Plan of Merger dated March 2, 1998 (the
"Agreement") between the Company, its bank subsidiary, HUBCO and
its bank subsidiary. Capitalized terms used herein and not
otherwise defined have the meanings assigned to them in the
Agreement. I currently own shares of CFHC Common Stock. As a
result of the Merger, I will receive shares of HUBCO Common Stock
in exchange for my CFHC Common Stock.
I have been advised that as of the date of this letter I may
be deemed to be an "affiliate" of the Company, as the term
"affiliate" is defined for purposes of paragraphs (c) and (d) of
Rule 145 of the rules and regulations promulgated under the
Securities Act of 1933, as amended (the "1933 Act") by the
Securities and Exchange Commission ("SEC") and as the term
"affiliate" is used for purposes of the SEC's rules and regulations
applicable to the determination of whether a merger can be
accounted for as a "pooling of interests" as specified in the SEC's
Accounting Series Release 135, as amended by Staff Accounting
Bulletins Nos. 65 and 76 ("ASR 135").
I represent to and agree with HUBCO that:
A. Transfer Review Restrictions. During the period
beginning on the date hereof and ending 30 days prior to the
consummation of the Merger, I shall not sell, transfer, reduce my
risk with respect to or otherwise dispose of ("transfer") any CFHC
Common Stock owned by me, and I shall not permit any relative who
shares my home, or any person or entity who or which I control, to
transfer any CFHC Common Stock owned by such person or entity,
without notifying HUBCO in advance of the proposed transfer and
giving HUBCO a reasonable opportunity to review the transfer before
it is consummated. HUBCO, if advised to do so by its independent
public accountants in writing a copy of which is provided to me,
may instruct me not to make or permit the transfer because it may
interfere with the "pooling of interests" treatment of the Merger.
I shall abide by any such instructions.
B. Transfer Restrictions During Merger Consummation
Period. I shall not transfer any CFHC Common Stock owned by me,
and I shall not permit any relative who shares my home, or any
person or entity who or which I control, to transfer any CFHC
Common Stock owned by such person or entity during the period
beginning 30 days prior to the consummation of the Merger and
ending immediately after financial results covering at least
30 days of post-Merger combined operations have been published by
HUBCO by means of the filing of a Form 10-Q or Form 8-K under the
Securities Exchange Act of 1934, as amended, the issuance of a
quarterly earnings report, or any other public issuance which
satisfies the requirements of ASR 135. For purposes of this
paragraph only, "CFHC Common Stock" includes HUBCO Common Stock as
converted.
C. Compliance with Rule 145. I have been advised that
the issuance of HUBCO Common Stock to me pursuant to the Merger
will be registered with the SEC under the 1933 Act on a
Registration Statement on Form S-4. However, I have also been
advised that, since I may be deemed to be an affiliate of the
Company at the time the Merger is submitted for a vote of the
Company's shareholders, any transfer by me of HUBCO Common Stock is
restricted under Rule 145 promulgated by the SEC under the 1933
Act. I agree not to transfer any HUBCO Common Stock received by me
or any of my affiliates unless (i) such transfer is made in
conformity with the volume and other limitations of Rule 145
promulgated by the SEC under the 1933 Act, (ii) in the opinion of
HUBCO's counsel or counsel reasonably acceptable to HUBCO, such
transfer is otherwise exempt from registration under the 1933 Act
or (iii) such transfer is registered under the 1933 Act.
D. Stop Transfer Instructions; Legend on Certificates.
I also understand and agree that stop transfer instructions will be
given to HUBCO's transfer agents with respect to the HUBCO Common
Stock received by me and any of my affiliates and that there will
be placed on the certificates of the HUBCO Common Stock issued to
me and any of my affiliates, or any substitutions therefor, a
legend stating in substance:
"THE SHARES REPRESENTED BY THIS CERTIFICATE WERE
ISSUED IN A TRANSACTION TO WHICH RULE 145 PROMULGATED
UNDER THE SECURITIES ACT OF 1933 APPLIES. THE SHARES
REPRESENTED BY THIS CERTIFICATE MAY ONLY BE TRANSFERRED
IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT DATED
MARCH 2, 1998 BETWEEN THE REGISTERED HOLDER HEREOF AND
HUBCO, INC., A COPY OF WHICH AGREEMENT IS ON FILE AT THE
PRINCIPAL OFFICES OF HUBCO, INC."
E. Consultation with Counsel. I have carefully read
this letter and the Agreement and discussed the requirements of
such documents and other applicable limitations upon my ability to
transfer HUBCO Common Stock to the extent I felt necessary with my
counsel or counsel for the Company.
Execution of this letter is not an admission on my part that I
am an "affiliate" of the Company as described in the second
paragraph of this letter, or a waiver of any rights I may have to
object to any claim that I am such an affiliate on or after the
date of this letter. This letter shall terminate concurrently with
any termination of the Agreement in accordance with its terms.
Very truly yours,
_____________________________
Name:
Accepted this _____
day of _______, 199__ by
HUBCO, INC.
By:_________________________
Name:
Title:
<PAGE>
EXHIBIT 5.19-2
FORM OF AFFILIATE LETTER FOR HUBCO AFFILIATES
March __, 1998
HUBCO, Inc.
[ADDRESS]
Gentlemen:
I am delivering this letter to you in connection with the
proposed merger (the "Merger") of Community Financial Holding
Corporation ("CFHC") with and into HUBCO, Inc., a New Jersey
corporation and registered bank holding company ("HUBCO"), pursuant
to the Agreement and Plan of Merger dated March 2, 1998 (the
"Agreement") between CFHC, its bank subsidiary, HUBCO and its bank
subsidiary. I currently own shares of HUBCO's common stock, no par
value ("HUBCO Common Stock").
I have been advised that as of the date of this letter I may
be deemed to be an "affiliate" of HUBCO, as the term "affiliate" is
used for purposes of the rules and regulations of the Securities
and Exchange Commission (the "SEC") applicable to the determination
of whether a merger can be accounted for as a "pooling of
interests" as specified in the SEC's Accounting Series Release 135,
as amended by Staff Accounting Bulletins Nos. 65 and 76 ("ASR
135").
I represent and covenant with HUBCO and CFHC that:
A. Transfer Restrictions Prior to Merger Consummation.
During the period beginning on the date hereof and ending 30 days
prior to the consummation of the Merger, I shall not sell,
transfer, reduce my risk with respect to or otherwise dispose of
("transfer") any HUBCO Common Stock owned by me, and I shall not
permit any relative who shares my home, or any person or entity who
or which I control, from transferring any HUBCO Common Stock owned
by such person or entity, without notifying HUBCO in advance of the
proposed transfer and giving HUBCO a reasonable opportunity to
object to the transfer before it is consummated. HUBCO, upon
advice of its independent public accountants, may instruct me not
to make or permit the transfer because it may interfere with the
"pooling of interests" treatment of the Merger. I shall abide by
any such instructions.
B. Post-Consummation Transfer Restrictions. During the
period beginning 30 days prior to the consummation of the Merger
and ending immediately after financial results covering at least 30
days of post-Merger combined operations have been published by
HUBCO by means of filing of a Form 10-Q or Form 8-K under the
Securities Exchange Act of 1934, the issuance of a quarterly
earnings report, or any other public issuance which satisfies the
requirements of ASR 135, I shall not transfer any HUBCO Common
Stock owned by me, and I shall not permit any relative who shares
my home, or any person or entity who or which I control, to
transfer any HUBCO Common Stock owned by such person or entity.
C. Consultation with Counsel. I have carefully read this
letter and the Agreement and discussed the requirements of such
documents and other applicable limitations upon my ability to
transfer HUBCO Common Stock to the extent I felt necessary with my
counsel or counsel for HUBCO.
Execution of this letter is not an admission on my part that I
am an "affiliate" of HUBCO as described in the second paragraph of
this letter, or a waiver of any rights I may have to object to any
claim that I am such an affiliate on or after the date of this
letter. This letter shall terminate concurrently with any
termination of the Agreement in accordance with its terms.
Very truly yours,
__________________________________
Name:
Title:
Accepted this ____ day of
________________, 199_ by
HUBCO, INC.
By: ________________________________
Name:
Title:<PAGE>
EXHIBIT 6.2
FORM OF OPINION OF COUNSEL TO CFHC
TO BE DELIVERED TO HUBCO ON THE EFFECTIVE TIME
(a) CFHC and Community have full corporate power to
carry out the transactions contemplated in the Agreement. The
execution and delivery of the Agreement and the consummation of the
transactions contemplated thereunder have been duly and validly
authorized by all necessary corporate action on the part of CFHC
and Community, and the Agreement constitutes the valid and legally
binding obligations of CFHC and Community enforceable in accordance
with its terms, except as may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium, receivership,
conservatorship, and other laws now or hereafter in effect relating
to or affecting the enforcement of creditors' rights generally or
the rights of creditors of federal banking associations or their
holding companies, (ii) general equitable principles, and
(iii) laws relating to the safety and soundness of insured
depository institutions, and except that no opinion need be
rendered as to the effect or availability of equitable remedies or
injunctive relief (regardless of whether such enforceability is
considered in a proceeding in equity or at law). Subject to
satisfaction of the conditions set forth in the Agreement, neither
the transactions contemplated in the Agreement, nor compliance by
CFHC and Community with any of the provisions thereof, will
(i) conflict with or result in a breach or default under (A) the
certificate of incorporation or bylaws of CFHC or the charter or
bylaws of Community, or (B) based on certificates of officers and
without independent verification, to the knowledge of such counsel,
any note, bond, mortgage, indenture, license, agreement or other
instrument or obligation to which CFHC or Community is a party; or
(ii) to the knowledge of such counsel, result in the creation or
imposition of any material lien, instrument or encumbrance upon the
property of CFHC or Community, except such material lien,
instrument or obligation that has been disclosed to HUBCO pursuant
to the Agreement, or (iii) violate in any material respect any
order, writ, injunction, or decree known to such counsel, or any
statute, rule or regulation applicable to CFHC or Community.
(b) CFHC is a corporation validly existing and in good
standing under the laws of the State of New Jersey, Community is a
validly existing federally-chartered banking association under the
laws of the United States of America and each of CFHC and Community
has the corporate power and authority to own or lease all of its
properties and assets and to conduct the business in which it is
currently engaged as described on pages __ and __ under the caption
"_____________________" in the Proxy Statement-Prospectus. The
deposits of Community are insured to the maximum extent provided by
law by the Federal Deposit Insurance Corporation.
(c) Each CFHC Subsidiary listed as such in the CFHC
Disclosure Schedule is validly existing and in good standing under
the laws of the jurisdiction of its incorporation.
(d) There is, to the knowledge of such counsel, no
legal, administrative, arbitration or governmental proceeding or
investigation pending or threatened to which CFHC or Community is a
party which would, if determined adversely to CFHC or Community,
have a material adverse effect on the business, properties, results
of operations, or condition, financial or otherwise, of CFHC or
Community taken as a whole or which presents a claim to restrain or
prohibit the transactions contemplated by the Agreement.
(e) No consent, approval, authorization, or order of
any federal or state court or federal or state governmental agency
or body, or to such counsel's knowledge of any third party, is
required for the consummation by CFHC or Community of the
transactions contemplated by the Agreement, except for such
consents, approvals, authorizations or orders as have been obtained
or which would not have a material adverse effect upon HUBCO upon
consummation of the Merger.
In addition to the foregoing opinions, counsel shall
state that on the sole basis of such counsel's participation in
conferences with officers and employees of CFHC in connection with
the preparation of the Prospectus-Proxy Statement and without other
independent investigation or inquiry, such counsel has no reason to
believe that the Prospectus-Proxy Statement, including any
amendments or supplements thereto (except for the financial
information, financial statements, notes to financial statements,
financial schedules and other financial or statistical data and
stock valuation information contained or incorporated by reference
therein and except for any information supplied by HUBCO for
inclusion therein, as to which counsel need express no belief), as
of the date of mailing thereof and as of the date of the meeting of
shareholders of CFHC to approve the Merger, contained any untrue
statement of a material fact or omitted to state a material fact
necessary to make any statement therein, in light of the
circumstances under which it was made, not misleading. Counsel may
state in connection with the foregoing that such counsel has not
independently verified and does not assume any responsibility for
the accuracy, completeness or fairness of any information or
statements contained in the Prospectus-Proxy Statement, except with
respect to identified statements of law or regulations or legal
conclusions relating to CFHC or Community or the transactions
contemplated in the Agreement and that it is relying as to
materiality as to factual matters on certificates of officers and
representatives of the parties to the Agreement and other factual
representations by CFHC and Community.
Such counsel's opinion shall be limited to matters governed by
the laws of the State of New Jersey and federal laws and
regulations of the United States of America.
<PAGE>
EXHIBIT 6.3
FORM OF OPINION OF COUNSEL TO HUBCO
TO BE DELIVERED TO CFHC ON THE EFFECTIVE TIME
(a) HUBCO is a corporation validly existing and in good
standing under the laws of the State of New Jersey, the Bank is a
validly existing New Jersey state-chartered banking association
under the laws of the State of New Jersey and each of HUBCO and the
Bank has the corporate power and authority to own or lease all of
its properties and assets and to carry on its business as described
in the Proxy Statement-Prospectus on pages __ and __ under the
caption "_____________________________." HUBCO is registered as a
bank holding company under the BHCA.
(b) Each HUBCO Subsidiary listed as such in the HUBCO
Disclosure Schedule is validly existing under the laws of the
jurisdiction of its incorporation.
(c) The authorized capital stock of HUBCO consists of
____________ shares of common stock, no par value per share ("HUBCO
Common Stock") and _____________ shares of Series B, no par value,
Convertible Preferred Stock (the "Authorized Preferred Stock").
Except for
to our knowledge, there are no outstanding subscription rights,
options, conversion rights, warrants or other agreements or
commitments of any nature whatsoever (either firm or conditional)
obligating HUBCO to issue, deliver or sell, cause to be issued,
delivered or sold, or restricting HUBCO from selling any additional
HUBCO Common Stock or Authorized Preferred Stock or obligating
HUBCO to grant, extend or enter into any such agreement or
commitment. The HUBCO Common Stock to be issued in connection with
the Merger in accordance with Article II of the Agreement, when so
issued in accordance therewith, will be duly authorized, validly
issued, fully paid and non-assessable, free of preemptive rights
and free and clear of all liens, encumbrances or restrictions
created by HUBCO.
(d) The Agreement has been authorized, executed and
delivered by HUBCO and the Bank and constitutes the valid and
binding obligations of HUBCO and the Bank enforceable in accordance
with its terms, except that the enforceability of the obligations
of HUBCO and the Bank may be limited by bankruptcy, fraudulent
conveyance, insolvency, reorganization, moratorium, or laws
affecting institutions the deposits of which are insured by the
FDIC or other laws heretofore or hereafter enacted relating to or
affecting the enforcement of creditors' rights generally and by
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). In addition,
certain remedial and other provisions of the Agreement may be
limited by implied covenants of good faith, fair dealing, and
commercially reasonable conduct, by judicial discretion, in the
instance of equitable remedies, and by applicable public policies
and laws.
(e) Subject to satisfaction of the conditions set forth
in the Agreement, the execution and delivery of the Agreement and
the consummation of the transactions contemplated thereby will not
(i) conflict with or violate any provision of or result in the
breach of any provision of the Certificate of Incorporation or By-
Laws of HUBCO or the Charter and By-Laws of the Bank ; (ii) based
on certificates of officers of HUBCO and without independent
verification, conflict with or violate in any material respect, or
result in a material breach or violation of the terms or provisions
of, or constitute a default under, or result in (whether upon or
after the giving of notice or lapse of time or both) any material
obligation under, any indenture, mortgage, deed of trust or loan
agreement or any other agreement, instrument, judgment, order,
arbitration award or decree of which we have knowledge (through our
representation of HUBCO and the Bank in connection therewith or in
the course of our representation of HUBCO and the Bank in
connection with the Agreement) and to which HUBCO or the Bank is a
party or by which HUBCO or the Bank is bound; or (iii) cause HUBCO
or the Bank to violate any corporation or banking law applicable to
HUBCO.
(f) All actions of the directors and shareholders of
HUBCO and the Bank required by federal banking laws and regulations
and New Jersey law or by the Certificate of Incorporation or By-
Laws of HUBCO and the Bank, to be taken by HUBCO and the Bank to
authorize the execution, delivery and performance of the Agreement
and consummation of the Merger have been taken.
(g) Assuming that there has been due authorization of
the Merger by all necessary corporate and governmental proceedings
on the part of CFHC and that CFHC has taken all action required to
be taken by it prior to the Effective Time, upon the appropriate
filing of the Certificate of Merger in respect of the Merger with
the New Jersey Secretary of State in accordance with Section 1.6 of
the Agreement, the Merger will become effective at the Effective
Time, as such term is defined in Section 1.6, and upon
effectiveness of the Merger each share of CFHC Common Stock will be
converted as provided in Article II of the Agreement.
(h) No approvals, authorizations, consents or other
actions or filings under federal banking law or New Jersey law
("Approvals") are required to be obtained by HUBCO or the Bank in
order to permit the execution and delivery of the Agreement by
HUBCO or the Bank and the performance by HUBCO or the Bank of the
transactions contemplated thereby other than those Approvals which
have been obtained or those Approvals or consents required to be
obtained by CFHC.
(i) The Registration Statement has been declared
effective by the Securities and Exchange Commission ("SEC") under
the 1933 Act and we are not aware that any stop order suspending
the effectiveness has been issued under the 1933 Act or proceedings
therefor initiated or threatened by the SEC.
We are not passing upon and do not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Proxy Statement-Prospectus and make no
representation that we have independently verified the accuracy,
completeness or fairness of such statements, but from our
examination of the Proxy Statement-Prospectus and our general
familiarity with HUBCO no facts have come to our attention that
caused us to believe that (except for financial statements and
other tabular financial information, and other financial and
statistical data and information, as to which we do not express any
belief) the Proxy Statement-Prospectus on the date of the mailing
thereof and on the date of the meeting of stockholders of CFHC at
which the Agreement was approved, contained any untrue statement of
a material fact regarding HUBCO or the Merger, or omitted to make a
material fact regarding HUBCO or the Merger therein, in light of
the circumstances under which they were made, not misleading.
We are members of the Bar of the State of New Jersey and
we express no opinion as to any of the laws of any jurisdiction
other than the laws of the State of New Jersey and federal laws and
regulations of the United States of America.
EXHIBIT 99.3
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT ("Agreement") dated as of
March 2, 1998, is by and between HUBCO, Inc., a New Jersey
corporation and registered bank holding company ("HUBCO"), and
COMMUNITY FINANCIAL HOLDING CORPORATION, a New Jersey corporation
and registered bank holding company ("CFHC").
BACKGROUND
WHEREAS, HUBCO and CFHC, as of the date hereof, are
prepared to execute a definitive agreement and plan of merger
(the "Merger Agreement") pursuant to which CFHC will be merged
with and into HUBCO (the "Merger"); and
WHEREAS, HUBCO has advised CFHC that it will not
execute the Merger Agreement unless CFHC executes this Agreement;
and
WHEREAS, the Board of Directors of CFHC has determined
that the Merger Agreement provides substantial benefits to the
shareholders of CFHC; and
WHEREAS, as an inducement to HUBCO to enter into the
Merger Agreement and in consideration for such entry, CFHC
desires to grant to HUBCO an option to purchase authorized but
unissued shares of common stock of CFHC in an amount and on the
terms and conditions hereinafter set forth.
AGREEMENT
In consideration of the foregoing and the mutual
covenants and agreements set forth herein and in the Merger
Agreement, HUBCO and CFHC, intending to be legally bound hereby,
agree:
1. Grant of Option. CFHC hereby grants to HUBCO the
option to purchase 252,790 shares of common stock, $5.00 par
value, of CFHC (the "Common Stock") at a price of $24.40 per
share (the "Option Price"), on the terms and conditions set forth
herein (the "Option").
2. Exercise of Option. This Option shall not be
exercisable until the occurrence of a Triggering Event (as such
term is hereinafter defined). Upon or after the occurrence of a
Triggering Event (as such term is hereinafter defined), HUBCO may
exercise the Option, in whole or in part, at any time or from
time to time, subject to the terms and conditions set forth
herein and the termination provisions of Section 19 of this
Agreement.
The term "Triggering Event" means the occurrence of any
of the following events:
A person or group (as such terms are defined in the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and the rules and regulations thereunder) other than HUBCO or an
affiliate of HUBCO:
(a) acquires beneficial ownership (as such term
is defined in Rule 13d-3 as promulgated under the Exchange Act)
of at least 20% of the then outstanding shares of Common Stock;
or
(b) enters into a letter of intent or an
agreement, whether oral or written, with CFHC pursuant to which
such person or any affiliate of such person would (i) merge or
consolidate, or enter into any similar transaction, with CFHC,
(ii) acquire all or a significant portion of the assets or
liabilities of CFHC, or (iii) acquire beneficial ownership of
securities representing, or the right to acquire beneficial
ownership or to vote securities representing, 20% or more of the
then outstanding shares of Common Stock; or
(c) makes a filing with any bank regulatory
authorities or publicly announces a bona fide proposal (a
"Proposal") for (i) any merger with, consolidation with or
acquisition of all or a significant portion of all the assets or
liabilities of, CFHC or any other business combination involving
CFHC, or (ii) a transaction involving the transfer of beneficial
ownership of securities representing, or the right to acquire
beneficial ownership or to vote securities representing, 20% or
more of the outstanding shares of Common Stock, and thereafter,
if such Proposal has not been Publicly Withdrawn (as such term is
hereinafter defined) at least 15 days prior to the meeting of
shareholders of CFHC called to vote on the Merger and CFHC's
shareholders fail to approve the Merger by the vote required by
applicable law at the meeting of shareholders called for such
purpose; or
(d) makes a bona fide Proposal and thereafter,
but before such Proposal has been Publicly Withdrawn, CFHC
willfully takes any action in any manner which would materially
interfere with its ability to consummate the Merger or materially
reduce the value of the transaction to HUBCO.
The term "Triggering Event" also means the taking of
any material direct or indirect action by CFHC or any of its
directors, senior executive officers, investment bankers or other
person with actual or apparent authority to speak for the CFHC
Board of Directors, inviting, encouraging or soliciting any
proposal which has as its purpose a tender offer for the shares
of Common Stock, a merger, consolidation, plan of exchange, plan
of acquisition or reorganization of CFHC, or a sale of a
significant number of shares of Common Stock or any significant
portion of its assets or liabilities (any of the foregoing, an
"Insider Action"); provided, that such Insider Action shall not
constitute a Triggering Event if (i) promptly but in any event
within 24 hours after the Insider Action occurs, CFHC so notifies
HUBCO in a writing which describes the Insider Action in
reasonable detail, (ii) promptly but in any event within 48 hours
after HUBCO requests in writing, CFHC takes all actions which
HUBCO reasonably requests in order to ameliorate any actual or
potential negative effects of the Insider Action, and (iii) the
Insider Action does not actually have an adverse effect on HUBCO
or on the ability of HUBCO or CFHC to consummate the Merger or to
do so in a timely manner.
The term "significant portion" means 25% of the assets
or liabilities of CFHC. The term "significant number" means 20%
of the outstanding shares of Common Stock.
"Publicly Withdrawn", for purposes of clauses (c) and
(d) above, shall mean an unconditional bona fide withdrawal of
the Proposal coupled with a public announcement of no further
interest in pursuing such Proposal or in acquiring any
controlling influence over CFHC or in soliciting or inducing any
other person (other than HUBCO or any affiliate of HUBCO) to do
so.
Notwithstanding the foregoing, the Option may not be
exercised at any time (i) in the absence of any required
governmental or regulatory approval or consent necessary for CFHC
to issue the shares of Common Stock covered by the Option (the
"Option Shares") or HUBCO to exercise the Option or prior to the
expiration or termination of any waiting period required by law,
or (ii) so long as any injunction or other order, decree or
ruling issued by any federal or state court of competent
jurisdiction is in effect which prohibits the sale or delivery of
the Option Shares, or (iii) if at any time between the exercise
of the Option and the issuance of the Option Shares, HUBCO has
breached in a material respect any of the material covenants of
the Merger Agreement which remain applicable to it.
CFHC shall notify HUBCO promptly in writing of the
occurrence of any Triggering Event known to it, it being
understood that the giving of such notice by CFHC shall not be a
condition to the right of HUBCO to exercise the Option. CFHC
will not take any action which would have the effect of
preventing or disabling CFHC from delivering the Option Shares to
HUBCO upon exercise of the Option or otherwise performing its
obligations under this Agreement, except to the extent required
by applicable securities and banking laws and regulations.
In the event HUBCO wishes to exercise the Option, HUBCO
shall send a written notice to CFHC (the date of which is
hereinafter referred to as the "Notice Date") specifying the
total number of Option Shares it wishes to purchase and a place
and date between two and ten business days inclusive from the
Notice Date for the closing of such a purchase (a "Closing");
provided, however, that a Closing shall not occur prior to two
days after the later of receipt of any necessary regulatory
approvals and the expiration of any legally required notice or
waiting period, if any.
3. Payment and Delivery of Certificates. At any
Closing hereunder (a) HUBCO will make payment to CFHC of the
aggregate price for the Option Shares so purchased by wire
transfer of immediately available funds to an account designated
by CFHC; (b) CFHC will deliver to HUBCO a stock certificate or
certificates representing the number of Option Shares so
purchased, free and clear of all liens, claims, charges and
encumbrances of any kind or nature whatsoever created by or
through CFHC, registered in the name of HUBCO or its designee, in
such denominations as were specified by HUBCO in its notice of
exercise and bearing a legend as set forth below; and (c) HUBCO
shall pay any transfer or other taxes required by reason of the
issuance of the Option Shares so purchased.
A legend will be placed on each stock certificate
evidencing Option Shares issued pursuant to this Agreement, which
legend will read substantially as follows:
The shares of stock evidenced by this
certificate have not been registered for sale
under the Securities Act of 1933 (the "1933
Act"). These shares may not be sold,
transferred or otherwise disposed of unless a
registration statement with respect to the
sale of such shares has been filed under the
1933 Act and declared effective or, in the
opinion of counsel reasonably acceptable to
COMMUNITY FINANCIAL HOLDING CORPORATION, said
transfer would be exempt from registration
under the provisions of the 1933 Act and the
regulations promulgated thereunder.
No such legend shall be required if a registration statement is
filed and declared effective under Section 4 hereof.
4. Registration Rights. Upon or after the occurrence
of a Triggering Event and upon receipt of a written request from
HUBCO, CFHC shall, if necessary for the resale of the Option or
the Option Shares by HUBCO, prepare and file a registration
statement with the Securities and Exchange Commission and any
state securities bureau covering the Option and such number of
Option Shares as HUBCO shall specify in its request, and CFHC
shall use its best efforts to cause such registration statement
to be declared effective in order to permit the sale or other
disposition of the Option and the Option Shares, provided that
HUBCO shall in no event have the right to have more than one such
registration statement become effective, and provided further
that CFHC shall not be required to prepare and file any such
registration statement in connection with any proposed sale with
respect to which counsel to CFHC delivers to CFHC and to HUBCO
its opinion (which is reasonably acceptable to HUBCO) to the
effect that no such filing is required under applicable laws and
regulations with respect to such sale or disposition; provided
further, however, that CFHC may delay any registration of Option
Shares above for a period not exceeding 90 days in the event that
CFHC shall in good faith determine that any such registration
would adversely effect an offering of securities by CFHC for
cash. HUBCO shall provide all information reasonable requested
by CFHC for inclusion in any registration statement to be filed
hereunder.
In connection with such filing, CFHC shall use its best efforts
to cause to be delivered to HUBCO such certificates, opinions,
accountant's letters and other documents as HUBCO shall
reasonably request and as are customarily provided in connection
with registrations of securities under the Securities Act of
1933, as amended. All reasonable expenses incurred by CFHC in
complying with the provisions of this Section 4, including
without limitation, all registration and filing fees, printing
expenses, fees and disbursements of counsel for CFHC and blue sky
fees and expenses shall be paid by CFHC. Underwriting discounts
and commissions to brokers and dealers relating to the Option
Shares, fees and disbursements of counsel to HUBCO and any other
expenses incurred by HUBCO in connection with such registration
shall be borne by HUBCO. In connection with such filing, CFHC
shall indemnify and hold harmless HUBCO against any losses,
claims, damages or liabilities, joint or several, to which HUBCO
may become subject, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of
any material fact contained in any preliminary or final
registration statement or any amendment or supplement thereto, or
arise out of the omission of a material fact required to be
stated therein or necessary to make the statements therein not
misleading; and CFHC will reimburse HUBCO for any legal or other
expense reasonably incurred by HUBCO in connection with
investigating or defending any such loss, claim, damage,
liability or action; provided, however, that CFHC will not be
liable in any case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged
omission made in such preliminary or final registration statement
or such amendment or supplement thereto in reliance upon and in
conformity with written information furnished by or on behalf of
HUBCO specifically for use in the preparation thereof. HUBCO
will indemnify and hold harmless CFHC to the same extent as set
forth in the immediately preceding sentence but only with
reference to written information specifically furnished by or on
behalf of HUBCO for use in the preparation of such preliminary or
final registration statement or such amendment or supplement
thereto; and HUBCO will reimburse CFHC for any legal or other
expense reasonably incurred by CFHC in connection with
investigating or defending any such loss, claim, damage,
liability or action. Notwithstanding anything to the contrary
herein, no indemnifying party shall be liable for any settlement
effected without its prior written consent.
5. Adjustment Upon Changes in Capitalization. In the
event of any change in the Common Stock by reason of stock
dividends, split-ups, mergers, recapitalizations, combinations,
conversions, exchanges of shares or the like, then the number and
kind of Option Shares and the Option Price shall be appropriately
adjusted.
In the event any capital reorganization or
reclassification of the Common Stock, or any consolidation,
merger or similar transaction of CFHC with another entity, or any
sale of all or substantially all of the assets of CFHC, shall be
effected in such a way that the holders of Common Stock shall be
entitled to receive stock, securities or assets with respect to
or in exchange for Common Stock, then, as a condition of such
reorganization, reclassification, consolidation, merger or sale,
lawful and adequate provisions (in form reasonably satisfactory
to the holder hereof) shall be made whereby the holder hereof
shall thereafter have the right to purchase and receive upon the
basis and upon the terms and conditions specified herein and in
lieu of the Common Stock immediately theretofore purchasable and
receivable upon exercise of the rights represented by this
Option, such shares of stock, securities or assets as may be
issued or payable with respect to or in exchange for the number
of shares of Common Stock immediately theretofore purchasable and
receivable upon exercise of the rights represented by this Option
had such reorganization, reclassification, consolidation, merger
or sale not taken place; provided, however, that if such
transaction results in the holders of Common Stock receiving only
cash, the holder hereof shall be paid the difference between the
Option Price and such cash consideration without the need to
exercise the Option.
6. Filings and Consents. Each of HUBCO and CFHC will
use its reasonable efforts to make all filings with, and to
obtain consents of, all third parties and governmental
authorities necessary to the consummation of the transactions
contemplated by this Agreement.
Exercise of the Option herein provided shall be subject
to compliance with all applicable laws including, in the event
HUBCO is the holder hereof, approval of the Securities and
Exchange Commission, the Board of Governors of the Federal
Reserve System, the Office of Comptroller of the Currency, the
Federal Deposit Insurance Corporation or the New Jersey
Department of Banking and Insurance, and CFHC agrees to cooperate
with and furnish to the holder hereof such information and
documents as may be reasonably required to secure such approvals.
7. Representations and Warranties of CFHC. CFHC
hereby represents and warrants to HUBCO as follows:
a. Due Authorization. CFHC has full corporate
power and authority to execute, deliver and perform this
Agreement and all corporate action necessary for execution,
delivery and performance of this Agreement has been duly taken by
CFHC.
b. Authorized Shares. CFHC has taken and, as
long as the Option is outstanding, will take all necessary
corporate action to authorize and reserve for issuance all shares
of Common Stock that may be issued pursuant to any exercise of
the Option.
c. No Conflicts. Neither the execution and
delivery of this Agreement nor consummation of the transactions
contemplated hereby (assuming all appropriate regulatory
approvals) will violate or result in any violation or default of
or be in conflict with or constitute a default under any term of
the Certificate of Incorporation or Bylaws of CFHC or any
agreement, instrument, judgment, decree or order applicable to
CFHC.
8. Specific Performance. The parties hereto
acknowledge that damages would be an inadequate remedy for a
breach of this Agreement and that the obligations of the parties
hereto shall be specifically enforceable. Notwithstanding the
foregoing, HUBCO shall have the right to seek money damages
against CFHC for a breach of this Agreement.
9. Entire Agreement. This Agreement and the Merger
Agreement constitute the entire agreement between the parties
with respect to the subject matter hereof and supersedes all
other prior agreements and understandings, both written and oral,
among the parties or any of them with respect to the subject
matter hereof.
10. Assignment or Transfer. HUBCO may not sell,
assign or otherwise transfer its rights and obligations
hereunder, in whole or in part, to any person or group of persons
other than to a wholly-owned subsidiary of HUBCO. HUBCO
represents that it is acquiring the Option for HUBCO's own
account and not with a view to or for sale in connection with any
distribution of the Option or the Option Shares. HUBCO is aware
that neither the Option nor the Option Shares is the subject of a
registration statement filed with, and declared effective by, the
Securities and Exchange Commission pursuant to Section 5 of the
Securities Act, but instead each are being offered in reliance
upon the exemption from the registration requirement provided by
Section 4(2) thereof and the representations and warranties made
by HUBCO in connection therewith.
MS\ Amendment of Agreement. Upon mutual consent of
the parties hereto, this Agreement may be amended in writing at
any time, for the purpose of facilitating performance hereunder
or to comply with any applicable regulation of any governmental
authority or any applicable order of any court or for any other
purpose.
12. Validity. The invalidity or unenforceability of
any provision of this Agreement shall not affect the validity or
enforceability of any other provisions of this Agreement, which
shall remain in full force and effect.
13. Notices. All notices, requests, consents and
other communications required or permitted hereunder shall be in
writing and shall be deemed to have been duly given when
delivered personally, by express service, cable, telegram or
telex, or by registered or certified mail (postage prepaid,
return receipt requested) to the respective parties as follows:
If to HUBCO:
HUBCO, Inc.
1000 MacArthur Boulevard
Mahwah, NJ 07430
Attn.: Kenneth T. Neilson, President and Chief
Executive Officer
With a copy to:
HUBCO, Inc.
1000 MacArthur Boulevard
Mahwah, NJ 07430
Attn.: D. Lynn Van Borkulo-Nuzzo, Esq.
Pitney, Hardin, Kipp & Szuch
200 Campus Drive
Florham Park, NJ 07932
Attn.: Ronald H. Janis, Esq.
Michael W. Zelenty, Esq.
If to CFHC:
Community Financial Holding Corporation
222 Haddon Avenue
Westmont, NJ 08108
Attn.: Robert T. Pluese, Chairman
With a copy to:
Stevens & Lee
1415 Route 70 East, Suite 506
Cherry Hill, NJ 08034
Attn.: Jeffrey P. Waldron, Esq.
Edward C. Hogan, Esq.
or to such other address as the person to whom notice is to be
given may have previously furnished to the others in writing in
the manner set forth above (provided that notice of any change of
address shall be effective only upon receipt thereof).
14. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New
Jersey.
15. Captions. The captions in the Agreement are
inserted for convenience and reference purposes, and shall not
limit or otherwise affect any of the terms or provisions hereof.
16. Waivers and Extensions. The parties hereto may,
by mutual consent, extend the time for performance of any of the
obligations or acts of either party hereto. Each party may
waive (a) compliance with any of the covenants of the other party
contained in this Agreement and/or (b) the other party's
performance of any of its obligations set forth in this
Agreement.
17. Parties in Interest. This Agreement shall be
binding upon and inure solely to the benefit of each party
hereto, and nothing in this Agreement, express or implied, is
intended to confer upon any other person any rights or remedies
of any nature whatsoever under or by reason of this Agreement.
18. Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed to be an
original, but all of which shall constitute one and the same
agreement.
19. Termination. This Agreement shall terminate upon
either the termination of the Merger Agreement as provided
therein or the consummation of the transactions contemplated by
the Merger Agreement; provided, however, that if termination of
the Merger Agreement occurs after the occurrence of a Triggering
Event (as defined in Section 2 hereof) and the Merger Agreement
has not been terminated by CFHC due to a material breach by HUBCO
of a material covenants of the Merger Agreement applicable to
HUBCO, this Agreement shall not terminate until the later of 18
months following the date of the termination of the Merger
Agreement or the consummation of any proposed transactions which
constitute the Triggering Event.
IN WITNESS WHEREOF, each of the parties hereto,
pursuant to resolutions adopted by its Board of Directors, has
caused this Stock Option Agreement to be executed by its duly
authorized officer, all as of the day and year first above
written.
COMMUNITY FINANCIAL HOLDING
CORPORATION
By: /s/ Gerard M. Banmiller
Gerard M. Banmiller, President
HUBCO, INC.
By: /s/ Kenneth T. Neilson
Kenneth T. Neilson, President
and Chief Executive Officer
