MUTUAL TERMINATION AGREEMENT
This MUTUAL TERMINATION AGREEMENT is entered into as of March 19, 2008
(this "Agreement"), by and among Oritani Financial Corp., a federal corporation
("OFC"), and Greater Community Bancorp, a New Jersey corporation ("GCB").
RECITALS
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WHEREAS, OFC and GCB are parties to that certain Agreement and Plan of
Merger dated as of November 13, 2007 (the "Merger Agreement") (capitalized terms
used herein but not otherwise defined herein shall have the meanings ascribed to
them in the Merger Agreement); and
WHEREAS, the board of directors of OFC and the board of directors of GCB
have determined that it is in the best interests of their respective
corporations and stockholders to terminate the Merger Agreement as provided
herein effective immediately upon execution of this Agreement; and
WHEREAS, GCB has advised OFC that GCB intends to enter into a merger
agreement with Valley National Bancorp ("Valley National"), upon execution of
this Agreement.
AGREEMENT
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NOW, THEREFORE, in consideration of the premises and the agreements set
forth herein, and intending to be legally bound hereby, the parties agree as
follows:
1. Termination of Merger Agreement.
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(a) Pursuant to Section 11.1.1 of the Merger Agreement, and effective
immediately upon the execution of this Agreement, the Merger Agreement is hereby
terminated and shall be of no further force or effect, and there shall be no
further obligations, or restrictions on future activities on the part of OFC or
GCB, except as otherwise explicitly set forth in this Agreement.
(b) As a result of the termination of the Merger Agreement as set forth in
(a) above, OFC and GCB agree and acknowledge that the GCB Voting Agreements, the
MHC Voting Agreement and the Noncompete Agreement between OFC and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇. dated November 13, 2007, shall each terminate effective immediately
upon execution of this Agreement, and shall be of no further force or effect.
OFC and GCB shall mutually agree on the form of notification to be sent by GCB
to its employees who are party to Executive Retention Agreements with OFC and
GCB pursuant to the Merger Agreement and shall cooperate to timely notify those
government agencies with which regulatory applications relating to the matters
contemplated by the Merger Agreement were filed of the termination of the Merger
Agreement.
2. Survival of Confidentiality Obligations and Agreement.
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(a) Notwithstanding anything contained in this Agreement to the contrary,
the provisions of the Confidentiality Agreement dated as of August 30, 2007
between GCB and OFC (the "Confidentiality Agreement") shall survive and remain
in full force and effect in accordance with its terms.
(b) Each of GCB and OFC shall promptly return or use its reasonable efforts
to destroy all agreements, documents, contracts, instruments, books, records,
materials and other information (in any format) ("Proprietary Information") of
the other party (except for such agreements, documents, contracts, instruments,
books, records, material and other information that is otherwise publicly
available), as well as all copies, reproductions, summaries, analyses or
extracts thereof or based thereon (whether in hard-copy form or on intangible
media, such as electronic mail or computer files) in the party's possession or
in the possession of any of its representatives. Notwithstanding the return or
destruction of any Proprietary Information, or documents or material containing
or reflecting any Proprietary Information, the parties will continue to be bound
by their obligations of confidentiality and other obligations under the
Confidentiality Agreement.
3. Mutual Discharge and Release.
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Each party hereto, on behalf of itself and its affiliates, subsidiaries,
directors, and to the extent legally permissible, its officers and employees,
and the successors and assigns of each of them (each, a "Releasing Party"),
hereby fully, finally and forever releases the other party hereto and each of
its respective affiliates, subsidiaries, directors, officers, stockholders,
employees, agents, financial and legal advisors and other representatives, and
the successors and assigns of each of them, from any and all liabilities and
obligations, claims, causes of action and suits, at law or in equity, whether
arising under any United States federal, state or local or any foreign law or
otherwise, that any Releasing Party has, has had or may have, arising out of,
relating to, or in connection with the Merger Agreement and the transactions
contemplated thereby, including, without limitation, any liability or obligation
arising out of any breach of any representation, warranty, covenant or agreement
contained in the Merger Agreement, provided that nothing in this Section 3 shall
impair the survival and full force of the terms of the Confidentiality
Agreement. By authorizing the execution of this Agreement, each member of the
board of directors of each party acknowledges and agrees (and shall be estopped
from arguing otherwise) that they are bound by this release.
4. Expenses.
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(a) Except as provided in (b) below, each party agrees that it shall bear
all costs and expenses incurred by it and its affiliates and subsidiaries in
connection with the Merger Agreement and the transactions contemplated thereby,
and this Agreement, without recourse to the other party.
(b) Immediately following the execution of this Agreement by OFC and GCB,
GCB shall pay $700,000 to OFC. (the "OFC Payment") via wire transfer in
accordance with written instructions provided by OFC, which shall be paid in
full satisfaction of any and all claims that OFC and its affiliates and
subsidiaries may have against either GCB or the Valley National or their
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respective affiliates, subsidiaries, officers and directors in connection with
the Merger Agreement, including, without limitation any fee payable pursuant to
Section 11.2.2 of the Merger Agreement, it being agreed that the acceptance of
this OFC Payment will constitute the sole and exclusive remedy of OFC against
GCB, its affiliates and subsidiaries and their respective officers and
directors.
5. Representations and Warranties.
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Each of OFC and GCB hereby represents and warrants to the other party that:
(a) it has full power and authority to enter into this Agreement and to perform
its obligations hereunder in accordance with the provisions of this Agreement,
(b) this Agreement has been duly authorized, executed and delivered by such
party, and (c) this Agreement constitutes a legal, valid and binding obligation
of such party, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights and remedies
generally and to general principles of equity, whether applied in a court of law
or a court of equity. Each party agrees that no party is in breach or default of
the Merger Agreement, and each party has agreed to the terms of, and has
executed, this Agreement without admitting any liability or wrongdoing of any
nature.
6. Public Announcement.
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Promptly following the execution of this Agreement, OFC will issue the
press release (the "OFC Press Release") attached as Exhibit 1 to this Agreement,
and GCG will issue the press release attached as Exhibit 2 to this Agreement,
provided, however, that said OFC Press Release shall not be issued or otherwise
made public prior to the public announcement of the business combination between
the Valley National and GCB. Except as required by law or applicable listing
agreement, and except for any announcement by GCB as to entering into a business
combination agreement with Valley National no other press release or other form
of public announcement shall be issued regarding this Agreement and the
termination of the Merger Agreement by either OFC or GCB without the prior
written consent of the other, which consent shall not be unreasonably withheld
or delayed and OFC and GCB agree that they shall not file a Current Report on
Form 8-K with the Securities and Exchange Commission pursuant to the requirement
of the Securities Exchange Act of 1934, as amended (the "Exchange Act")with
respect to the termination of the Merger Agreement as contemplated hereby prior
to the public announcement of the business combination between the Valley
National and GCB, unless such failure to file would result in a violation of law
or of its reporting obligations under the Exchange Act. Notwithstanding the
foregoing, both OFC and GCB will be permitted to make reference to the matters
addressed in this Agreement (but only after the earlier of the public
announcement of the business combination between the Valley National and GCB or
four business days after the execution hereof) in other press releases or
required filings with the Securities and Exchange Commission, provided that such
references are consistent in substance with the Press Release or are required by
applicable law or listing requirements and each may issue general communications
regarding the termination of the Merger Agreement to its employees and
customers. OFC agrees that the joint press release to be issued by GCB and
Valley National that is attached to this Agreement as Exhibit 3 is consistent
with the requirements of this paragraph.
7. Waiver.
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In accordance with Section 11.3 of the Merger Agreement and by its
execution of this Agreement (and without regard to GCB's execution of this
Agreement), Oritani hereby waives compliance by GCB (including its Subsidiaries
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and Representatives) with Section 6.10 of the Merger Agreement with respect to
any actions taken by GCB on March 19, 2008. 8. Notices. All notices or other
communications hereunder shall be in writing and shall be deemed given if
delivered by receipted hand delivery or mailed by prepaid registered or
certified mail (return receipt requested) or by recognized overnight courier
addressed as follows:
If to GCB, to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Chairman, President and Chief Executive Officer
Greater Community Bancorp
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With required copies to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq
▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to OFC, to: ▇▇▇▇▇ ▇. ▇▇▇▇▇.
Chairman, President and Chief Executive Officer
Oritani Financial Corp.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With required copies to: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address as shall be furnished in writing by any party, and any
such notice or communication shall be deemed to have been given: (a) as of the
date delivered by hand; (b) three (3) business days after being delivered to the
U.S. mail, postage prepaid; or (c) one (1) business day after being delivered to
the overnight courier.
8. Complete Agreement.
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This Agreement, along with the Confidentiality Agreement, contains the
entire agreement and understanding of the parties with respect to its subject
matter. There are no restrictions, agreements, promises, warranties, covenants
or undertakings between the parties other than those expressly set forth herein
or therein. This Agreement supersedes, terminates and renders of no further
force or effect all prior or contemporaneous agreements and understandings
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(other than the Confidentiality Agreement) between the parties, both written and
oral, with respect to its subject matter.
10. Amendment; Modification.
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This Agreement may be amended, modified or supplemented only by a written
agreement executed by the parties hereto.
11. Severability.
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In the event that any one or more provisions of this Agreement shall for
any reason be held invalid, illegal or unenforceable in any respect, by any
court of competent jurisdiction, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Agreement and the parties shall
use their reasonable efforts to substitute a valid, legal and enforceable
provision which, insofar as practical, implements the purposes and intents of
this Agreement.
12. Governing Law.
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This Agreement shall be governed by and construed in accordance with the
laws of the State of New Jersey, without giving effect to the conflict of law
provisions thereof (except to the extent that mandatory provisions of federal
law are applicable). This Agreement shall be binding upon any successor to OFC
or GCB. The parties have participated jointly in the negotiation and drafting of
this Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any of the provisions of
this Agreement.
13. Counterparts.
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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. A facsimile copy of a signature page shall be deemed to be an
original signature page.
14. Headings.
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The headings in this Agreement have been inserted solely for ease of
reference and should not be considered in the interpretation or construction of
this Agreement.
15. Miscellaneous.
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In the event any action in law or equity or other proceeding is brought for
the enforcement of this Agreement or in connection with any of the provisions of
this Agreement, the prevailing party shall be entitled to its attorney's fees
and other costs reasonably incurred in such action or proceeding.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first written above.
ORITANI FINANCIAL CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
Chairman, President and Chief Executive Officer
GREATER COMMUNITY BANCORP
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Chairman, President and Chief Executive Officer
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