Exhibit 99(b)
STOCK PURCHASE AND STOCKHOLDER AGREEMENT
STOCK PURCHASE AND STOCKHOLDER AGREEMENT (this
"Agreement") dated as of October 24, 1995, among HUB Financial
Services, Inc., a New Jersey corporation (the "Company"), HUBCO,
Inc., a New Jersey corporation ("HUBCO"), ▇▇▇▇▇▇ UNITED BANK, a
commercial bank chartered under the laws of New Jersey and a
wholly-owned subsidiary of HUBCO ("▇▇▇▇▇▇"), UNITED NATIONAL
BANCORP, a New Jersey corporation ("UNB") and UNITED NATIONAL
BANK, a national banking association and a wholly-owned
subsidiary of UNB ("United").
The parties hereby agree as follows:
ARTICLE I
DEFINITIONS AND CONSTRUCTION
SECTION 1.01. CERTAIN DEFINITIONS. As used in this
Agreement, the following terms shall have the meanings specified
below:
"Affiliate" shall mean, when used with respect to a
specified Person, another Person that directly, or indirectly
through one or more intermediaries, controls or is controlled by
or is under common control with the Person specified.
"BCA" shall mean the Business Corporation Act of the
State of New Jersey.
A Person shall be deemed the "beneficial owner" of, and
shall be deemed to "beneficially own", any securities which such
Person or any of its Affiliates would be deemed to "beneficially
own" within the meaning of Rule 13d-3 under the Exchange Act if
the references to "within 60 days" in Rule 13d-3(d)(i) were
omitted.
"Board" shall mean the board of directors of the
Company.
"Business Plan" shall mean the Business Plan of the
Company from time to time in effect.
"Business Day" shall mean any day other than a day
which is a Saturday or Sunday or other day on which commercial
banks in New Jersey are authorized or required to remain closed.
"Certificate of Incorporation" shall mean the
certificate of incorporation of the Company in the form of
Exhibit D.
A "Change of Control" shall have occurred with respect
to a corporation for the purposes of this Agreement if:
(A) any of the following transactions shall be
consummated:
(i) a merger, consolidation, combination or exchange
with any other Person in which all common stock of such
corporation outstanding immediately prior thereto represents
(either by remaining outstanding or being converted into
common stock of the surviving corporation) less than 50% of
the common stock of such corporation or the surviving entity
outstanding immediately after such merger or consolidation;
or
(ii) the sale or disposition by such corporation
(in one transaction or a series of transactions) of all
or substantially all such corporation's assets;
(B) a plan of liquidation or dissolution of such
corporation is submitted to and approved by the stockholders of
such corporation; or
(C) any Person (other than (i) a trustee or other
fiduciary holding securities under an employee benefit plan of
such corporation or (ii) a Person owned directly or indirectly by
the stockholders of such corporation in substantially the same
proportions as their ownership of stock of such corporation) is
or becomes the beneficial owner, directly or indirectly, of 25%
or more of the common stock of such corporation.
"Closing" shall mean the closing of the purchase and
sale of the United Shares and the execution of the other
Operative Agreements, as set forth in Section 2.01.
"Closing Date" shall mean the date on which the Closing
shall occur.
"Common Stock" shall mean the Common Stock, no par
value, of the Company.
"Company Lease" shall mean one or more leases for space
between the Company and HUBCO, in the form annexed hereto as
Exhibit B, except that the Company's premises under the Lease are
15,873 square feet and the lease payments thereunder shall be
adjusted to reflect this increase.
"Contract" shall mean contract, indenture, mortgage,
lease, deed, commitment, agreement, arrangement or legally
binding understanding.
As used in this Agreement, "control" (including, with
its correlative meanings, "controlled by" and "under common
control with") shall mean possession, directly or indirectly, of
power to direct or cause the direction of management or policies
(whether through ownership of securities or partnership or other
ownership interests, by contract or otherwise).
"Dispose", with respect to Common Stock of the Company,
shall mean to sell, exchange, assign, transfer, pledge,
hypothecate or otherwise dispose of any interest, except by
operation of law in connection with a merger or consolidation of
the Holder thereof or the Company.
"Exchange Act" shall mean the Securities Exchange Act
of 1934.
"Fair Market Value" shall mean the fair market value of
the Company as a going concern in a sale on an arm's length basis
between an informed and willing buyer and an informed and willing
seller under no compulsion to buy or sell, taking into account
all the facts and circumstances then prevailing, including the
Company's business at the time of valuation, the terms of the
Operative Agreements and other Contracts to which the Company is
then a party and the effects, if any, of the sale on such
business, Operative Agreements and Contracts, assuming
consummation of the sale of the Company to a party not affiliated
with United or ▇▇▇▇▇▇ or any subsequent Holder.
"GAAP" shall mean generally accepted accounting
principles.
"Holder" shall mean any registered holder of Common
Stock.
"▇▇▇▇▇▇ Shares" shall mean 500 Shares, which constitute
the Shares owned by ▇▇▇▇▇▇ after the transfer from HUBCO to
▇▇▇▇▇▇.
"Initial Shares" shall mean the ▇▇▇▇▇▇ Shares and the
United Shares.
"Judgment" shall mean any judgment, order, decree or
arbitral award.
"Lien" shall mean, with respect to any asset, (i) any
mortgage, deed of trust, lien, pledge, charge, security interest,
easement, covenant, right of way, restriction, equity or
encumbrance of any nature whatsoever in or on such asset, and
(ii) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement
relating to such asset.
"Litigation" shall mean any written claim, action,
lawsuit, arbitration or proceeding.
"Operative Agreements" shall mean this Agreement, the
Servicing Agreements, the Company Lease and other attachments and
exhibits thereto.
"Person" shall mean any individual, firm, corporation,
partnership, trust, joint venture or other entity.
"SEC" shall mean the Securities and Exchange Commission
or any successor commission or agency having similar powers.
"Securities Act" shall mean the Securities Act of 1933.
"Shares" shall mean shares of Common Stock.
"Servicing Agreement" shall mean the data processing
servicing agreement between the Company and ▇▇▇▇▇▇ United Bank
and United, each in the form set forth as Exhibit A to this
Agreement. "▇▇▇▇▇▇ Servicing Agreement" shall mean the Servicing
Agreement between the Company and ▇▇▇▇▇▇, "United Servicing
Agreement" shall mean the Servicing Agreement between the Company
and United.
"Transfer" shall mean to sell, transfer or assign.
"Transactions" shall mean all of the transactions
contemplated hereby, as defined in Section 3.01(a), including the
transfer of the ▇▇▇▇▇▇ Shares from HUBCO to ▇▇▇▇▇▇, the sale by
HUBCO to United of the United Shares, and the execution and
performance of the Servicing Agreements.
"United Shares" shall mean 500 Shares, purchased by
United under Section 2.01 hereof.
SECTION 1.02. TERMS GENERALLY. The definitions in
Sections 1.01 and elsewhere in this Agreement shall apply equally
to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words
"include", "includes" and "including" shall be deemed to be
followed by the phrase "without limitation". Any reference in
this Agreement to a "day" or a number of "days" (without the
explicit qualification of "Business") shall be interpreted as a
reference to a calendar day or number of calendar days. If any
action or notice is to be taken or given on or by a particular
calendar day, and such calendar day is not a Business Day, then
such action or notice shall be deferred until, or may be taken or
given, on the next Business Day.
ARTICLE II
PURCHASE AND SALE OF SHARES
SECTION 2.01. PURCHASE OF SHARES AND EXECUTION OF
OPERATIVE AGREEMENTS.
(a) Prior to the Closing, HUBCO shall transfer 500
Shares of the Common Stock to ▇▇▇▇▇▇. At the Closing, in
reliance upon the representations and warranties set forth in
this Agreement, and upon the terms and subject to the conditions
set forth herein, (i) HUBCO shall sell to United, and United
shall purchase 500 Shares of the Common Stock (the "United
Shares") for the amount specified in Section 2.02 (the "Purchase
Price") payable as provided in Section 2.03 and (ii) United shall
enter into the United Servicing Agreement. In connection with
the United Servicing Agreement, United shall have provided, at
its sole cost, all necessary hook-ups to the Company and obtained
all terminals for use at United to utilize the hook-up.
(b) At the Closing, in reliance upon the
representations and warranties set forth in this Agreement, and
upon the terms and subject to the conditions set forth herein,
(i) ▇▇▇▇▇▇ shall enter into the ▇▇▇▇▇▇ Servicing Agreement and
(ii) HUBCO shall enter into the Company Lease and terminate the
existing lease with the Company and the existing servicing
agreement between the Company and ▇▇▇▇▇▇.
(c) At the Closing, in reliance upon the
representations and warranties set forth in this Agreement, and
upon the terms and subject to the conditions set forth herein,
the Company shall (i) enter into the United Servicing Agreement,
the ▇▇▇▇▇▇ Servicing Agreement and the Company Lease, and (ii)
terminate the existing lease for space for the Company and the
existing Servicing Agreement between the Company and ▇▇▇▇▇▇.
SECTION 2.02. CALCULATION OF PURCHASE PRICE. The
aggregate Purchase Price payable by United for the United Shares
shall be the sum of the following:
(a) 135% of 50% of the cost of the equipment owned by
the Company on the date hereof, as listed on Schedule 1 hereof;
(b) less 135% of 50% of the cost of any equipment on
Schedule 1 which is lost, stolen, destroyed or disposed of by the
Company on or before the Closing, unless with respect to any
lost, stolen or destroyed equipment only, the equipment is
replaced with substantially similar equipment;
(c) plus 50% of the equipment purchased and paid for
by the Company after the date hereof and before the Closing with
the consent of United, which consent shall not be unreasonably
withheld.
SECTION 2.03. PAYMENT OF PURCHASE PRICE. United shall
pay HUBCO the Purchase Price by check or wire transfer, in the
sole discretion of United. United shall advise HUBCO or ▇▇▇▇▇▇
in writing 5 Business Days prior to the Closing of the method by
which United shall pay the Purchase Price.
SECTION 2.04. CLOSING. (a) The Closing will take
place at 10:00 a.m. on November 2, 1995, or another date to be
specified by United and ▇▇▇▇▇▇ after satisfaction or waiver of
the last of the conditions set forth in Article III to be met to
the satisfaction of, or waived by, each party. The Closing shall
occur at the offices of Pitney, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ or at a
place to be agreed by the parties.
(b) At the Closing, (i) United shall pay to HUBCO the
Purchase Price by check or wire transfer, (ii) HUBCO shall
deliver to the Company stock certificates for 500 Shares for
transfer into the name of United, (iii) each party shall execute
and deliver each Operative Agreement to which it is a party that
has not previously been executed, and (iv) the Company shall
deliver to United stock certificates representing the United
Shares registered in the name of United.
SECTION 2.05. LEGENDS. Each stock certificate
evidencing the Initial Shares shall bear the following legends at
the time of issuance:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY
STATE SECURITIES LAWS AND MAY NOT BE SOLD OR OFFERED
FOR SALE EXCEPT IN COMPLIANCE WITH SUCH ACT AND LAWS.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE NOT
TRANSFERABLE, EXCEPT IN ACCORDANCE WITH THE PROCEDURES
AND RESTRICTIONS SET FORTH IN THE STOCK PURCHASE AND
STOCKHOLDER AGREEMENT DATED AS OF OCTOBER 24, 1995,
AMONG THE CORPORATION, HUBCO, INC., ▇▇▇▇▇▇ UNITED BANK,
UNITED NATIONAL BANK AND UNITED NATIONAL BANCORP
("STOCKHOLDER AGREEMENT"), COPIES OF WHICH ARE ON FILE
AT THE PRINCIPAL OFFICE OF THE CORPORATION AND ARE
AVAILABLE TO ANY HOLDER WITHOUT CHARGE UPON WRITTEN
REQUEST THEREFOR. ANY PURPORTED TRANSFER IN VIOLATION
OF SUCH RESTRICTIONS SHALL BE VOID AND OF NO EFFECT.
AS USED HEREIN, 'TRANSFER' SHALL MEAN SALE, EXCHANGE,
ASSIGNMENT, TRANSFER, PLEDGE, HYPOTHECATION OR OTHER
DISPOSITION OF ANY INTEREST IN A SHARE EXCEPT BY
OPERATION OF LAW IN CONNECTION WITH A MERGER OR
CONSOLIDATION OF THE CORPORATION.
THE VOTING OF THE SECURITIES EVIDENCED BY THIS
CERTIFICATE IS SUBJECT TO THE PROVISIONS OF THE
STOCKHOLDER AGREEMENT.
ARTICLE III
CONDITIONS TO CLOSING
SECTION 3.01. CONDITIONS TO EACH PARTY'S OBLIGATIONS.
The obligations of United and HUBCO to purchase and sell the
United Shares and the obligations of United, HUBCO and ▇▇▇▇▇▇ to
enter into the other Operative Agreements to which they are
parties, are subject to the satisfaction or waiver, as of the
Closing Date, of the following conditions:
(a) GOVERNMENTAL APPROVALS. All governmental
approvals necessary for the consummation of the transactions
contemplated hereby (the "Transactions") shall have been obtained
and all waiting periods imposed by any governmental authority or
law shall have expired and any such approvals shall not impose
any burdensome condition.
(b) NO INJUNCTIONS OR LITIGATION. No injunction
restraining or preventing the consummation of the Transactions
shall be in effect, and no litigation shall be pending or
threatened by or before any governmental authority that would
restrain or prevent the consummation of the Transactions or
impose any burdensome condition.
(c) OTHER OPERATIVE AGREEMENTS. The parties to each
other Operative Agreement shall have entered into all such other
Operative Agreements, each of which shall be in full force and
effect (except each such other Operative Agreement may be
similarly conditioned on the entering into of all other Operative
Agreements).
(d) APPROVALS. All approvals of any third party
necessary for the consummation of the Transactions shall have
been obtained.
(e) EMPLOYMENT MATTERS. (i) United and ▇▇▇▇▇▇ shall
have agreed upon the names and positions for all employees. Each
person designated by United and ▇▇▇▇▇▇ as an initial employee of
the Company shall have accepted employment with the Company on
initial terms reasonably satisfactory to United and ▇▇▇▇▇▇ and
signed standard non-disclosure agreements reasonably satisfactory
to United and ▇▇▇▇▇▇ (which actions in each case may be
conditional on the Closing occurring).
(ii) The Company shall have established initial
policies requiring all employees of the Company to accept
terms of employment based upon standard non-disclosure
agreements reasonably satisfactory to United and ▇▇▇▇▇▇.
(iii) The Company shall have adopted initial
policies, reasonably satisfactory to ▇▇▇▇▇▇ and United,
relating to relocation of employees, employee incentive
compensation and benefit plans.
(f) BUSINESS PLAN. The Company shall have approved
the initial Business Plan which shall provide, among other
things, that servicing to ▇▇▇▇▇▇ and United under the Servicing
Agreements shall be calculated on an approximately break-even
basis. The Business Plan shall have been agreed to by ▇▇▇▇▇▇ and
United.
(g) EQUIPMENT. All of the equipment listed on
Schedule 1 and Schedule 1-L shall have been contributed to the
Company by HUBCO, without cost or obligation to the Company, and
all of such equipment shall be owned free and clear of any liens
or encumbrances by the Company.
(h) LICENSES. The licensor of the software licenses
used or to be used to provide servicing under the Servicing
Agreements shall have consented and agreed to permit the Company
to undertake the servicing contemplated hereby without
terminating the rights of ▇▇▇▇▇▇ United Bank and United National
Bank to be serviced separately.
(i) TRANSFER OF SHARES. HUBCO shall have transferred
beneficially and of record to ▇▇▇▇▇▇ prior to the Closing 500
Shares of the Company.
SECTION 3.02. CONDITIONS TO HUBCO'S AND ▇▇▇▇▇▇'▇
OBLIGATIONS. The obligations of HUBCO to sell the United Shares
and the obligations of HUBCO and ▇▇▇▇▇▇ to enter into the
Operative Agreements to which each is a party are subject to the
satisfaction (or waiver by HUBCO or ▇▇▇▇▇▇), as of the applicable
Closing Date, of the following additional conditions:
(a) ACCURACY OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of the Company and United made in
each Operative Agreement shall be true and correct in all
material respects as of the Closing Date, as if made on and as of
the Closing Date.
(b) PERFORMANCE OF OBLIGATIONS. The Company and
United shall have performed or complied in all material respects
with their respective covenants and agreements contained in the
Operative Agreements required to be performed or complied with by
the Company or United on or prior to the Closing Date.
(c) DELIVERY OF COMPANY CERTIFICATES. The Company
shall have delivered to ▇▇▇▇▇▇ the following (in each case dated
the Closing Date, unless otherwise indicated):
(i) a certificate of the Chief Executive Officer and
the Secretary of the Company to the effect that the
conditions specified in Sections 3.02(a) and 3.02(b) have
been satisfied with respect to the Company;
(ii) a certified copy of the Certificate of
Incorporation of the Company as filed with the Secretary of
the State of New Jersey, dated a recent date; and
(iii) such other certificates or documents as
▇▇▇▇▇▇ or its counsel may reasonably request relating
to the satisfaction of the conditions to the Closing
and as to which ▇▇▇▇▇▇ shall have notified United at
least 3 days prior to Closing.
(d) DELIVERY OF UNITED CERTIFICATES. United shall
have delivered to ▇▇▇▇▇▇ the following (in each case dated the
Closing Date, unless otherwise indicated):
(i) a certificate of an authorized signatory of
United to the effect that the conditions specified in
Sections 3.02(a) and 3.02(b) have been satisfied with
respect to United; and
(ii) such other certificates or documents as
▇▇▇▇▇▇ or its counsel may reasonably request relating
to the satisfaction of the conditions to the Closing
and as to which ▇▇▇▇▇▇ shall have notified United at
least 3 days prior to Closing.
(e) PROCEEDINGS SATISFACTORY. All corporate and legal
proceedings required to be taken by the Company and United in
connection with the Transactions and all documents and papers
relating to such transactions shall be reasonably satisfactory in
form and substance to HUBCO and ▇▇▇▇▇▇ and their counsel, and
HUBCO and ▇▇▇▇▇▇ shall have received all such certified or other
copies of all such documents as HUBCO and ▇▇▇▇▇▇ or its counsel
shall reasonably require.
SECTION 3.03. CONDITIONS TO UNITED'S OBLIGATIONS. The
obligations of United to purchase and pay for the United Shares
and enter into the Operative Agreements to which it is a party
are subject to the satisfaction (or waiver by United), as of the
Closing Date, of the following additional conditions:
(a) ACCURACY OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of the Company, HUBCO and ▇▇▇▇▇▇
made in each Operative Agreement shall be true and correct in all
material respects as of the Closing Date, as if made on and as of
the Closing Date.
(b) PERFORMANCE OF OBLIGATIONS. The Company, HUBCO
and ▇▇▇▇▇▇ shall have performed or complied with in all material
respects their respective covenants and agreements contained in
the Operative Agreements required to be performed or complied
with by the Company, HUBCO or ▇▇▇▇▇▇ on or prior to the Closing
Date.
(c) DELIVERY OF COMPANY CERTIFICATES. The Company
shall have delivered to United the following:
(i) the documents referred to in Sections 3.02(c)(i)-
(iii); and
(ii) such other certificates or documents as United or
its counsel may reasonably request relating to the
satisfaction of the conditions to the applicable Closing and
as to which United shall have notified the Company at least
3 days prior to Closing.
(d) DELIVERY OF ▇▇▇▇▇▇ CERTIFICATES. ▇▇▇▇▇▇ shall
have delivered to United the following (in each case dated the
Closing Date, unless otherwise indicated):
(i) a certificate of an authorized signatory of ▇▇▇▇▇▇
to the effect that the conditions specified in Sections
3.03(a) and 3.03(b) have been satisfied with respect to
HUBCO and ▇▇▇▇▇▇; and
(ii) such other certificates or documents as United or
its counsel may reasonably request relating to the
satisfaction of the conditions to the Closing and as to
which United shall have notified ▇▇▇▇▇▇ at least 3 days
prior to Closing.
(e) PROCEEDING SATISFACTORY. All corporate and legal
proceedings required to be taken by the Company, HUBCO and ▇▇▇▇▇▇
in connection with the Transactions and all documents and papers
relating to such transactions shall be reasonably satisfactory in
form and substance to United and its counsel, and United shall
have received all such certified or other copies of all such
documents as United or its counsel shall reasonably require.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF THE
COMPANY. The Company hereby represents and warrants to United,
on the date hereof and on and as of the Closing Date, as follows:
(a) ORGANIZATION AND STANDING OF THE COMPANY. The
Company:
(i) is a corporation duly organized, validly existing
and in good standing under the laws of the State of New
Jersey;
(ii) has all requisite corporate power and authority
and possesses all permits and approvals from governmental
authorities necessary to enable it to own, lease or
otherwise hold its properties and assets and to carry on its
business as contemplated by the Business Plan; and
(iii) is duly qualified to do business and is in good
standing as a foreign corporation in each jurisdiction where
it is required by the nature of its business as contemplated
by the Business Plan to be so qualified.
(b) AUTHORITY. The Company has all requisite
corporate power and authority to enter into this Agreement and
the other Operative Agreements and to consummate the
Transactions. The execution and delivery by the Company of this
Agreement and the other Operative Agreements and the consummation
by the Company of the Transactions have been duly authorized by
all necessary corporate action on the part of the Company. This
Agreement and the other Operative Agreements have been, or will
at the Closing have been, duly executed and delivered by the
Company and constitute, or will at the Closing constitute, legal,
valid and binding obligations of the Company, enforceable against
the Company in accordance with their respective terms. The
execution and delivery by the Company of this Agreement and the
other Operative Documents do not and did not, and the
consummation of the Transactions and compliance with the terms of
the Operative Agreements will not, conflict with, result in any
violation of or default (with or without notice or lapse of time
or both) under, give rise to a right of termination, cancellation
or acceleration of any material obligation or to the loss of any
material benefit under or result in or require the creation,
imposition or extension of any lien or encumbrance upon any of
the properties or assets of the Company under (i) any contract,
(ii) any provision of the Certificate of Incorporation or By-laws
of the Company or (iii) any judgment or law. No governmental
approval or approval of any other Person is required to be
obtained or made by the Company in connection with the execution
and delivery of this Agreement or the other Operative Agreements
or the consummation of the Transactions.
(c) CAPITALIZATION OF THE COMPANY. Immediately prior
to the Closing, the authorized capital of the Company shall
consist of: 1,000 shares of Common Stock, of which 1,000 Shares
will be issued and outstanding as of the Closing Date and of
which 500 will be held by HUBCO and 500 held by ▇▇▇▇▇▇. The
outstanding Shares have been duly authorized and validly issued
(including, without limitation, issued in compliance with
applicable federal and state securities laws), fully-paid and
non-assessable. The Company is not authorized to issue preferred
shares and there are no outstanding warrants, options, conversion
privileges, preemptive rights or other rights or agreements to
purchase or otherwise acquire or issue any equity securities of
the Company, nor has the issuance of any of the aforesaid rights
to acquire securities of the Company been authorized. The
Company is not a party or subject to any agreement or
understanding and, to the Company's knowledge, there is no
agreement or understanding between any persons and/or entities,
which affects or relates to the voting or giving of written
consents with respect to any security other than as set forth in
this Agreement.
(d) LITIGATION. There is no action, proceeding or
investigation pending against the Company, or threatened, or any
basis therefor known to the Company. There is no judgment,
decree or order of any court in effect against the Company, and
the Company is not in default with respect to any order of any
governmental authority to which the Company is a party or by
which it is bound. There is no action, suit, proceeding or
investigation by the Company currently pending or which the
Company presently intends to initiate. The Company is not aware
of any pending or threatened claims against the Company.
(e) EQUIPMENT OWNED AND LEASED; TITLE TO PROPERTIES;
LIENS AND ENCUMBRANCES. Schedule 1 lists all of the items of
equipment (including hardware and software) owned by the Company,
identifies the equipment and lists its original cost and
acquisition date. Schedule 1-L lists all of the equipment leased
by the Company, identifies the equipment, shows the lease term
and shows the periodic costs and provides the information for
such equipment as would be listed on Schedule 1. All of the
equipment on Schedule 1-L as of the Closing has been transferred
to the Company, free and clear of all liens and encumbrances,
including the encumbrance of any leases. All of the information
on Schedule 1 and Schedule 1-L is correct, complete and accurate.
The Company has good and marketable title to all of its
properties and assets, both real and personal, and has good title
to all its leasehold interests, in each case subject to no
mortgage, pledge, lien, security interest, conditional sale
agreement, encumbrance or charge, other than the lien of current
taxes not yet due and payable.
(f) TAXES. All federal, state, local and foreign tax
returns required to be filed by the Company have been filed and
are true in all material respects, and all taxes, assessments,
fees and other governmental charges upon the Company, or upon any
of its properties, income or franchises, shown in such returns to
be due and payable have been paid. The Company has accrued on
its books any taxes not yet due and payable.
(g) DESCRIPTION OF COMPANY'S BUSINESS. The Company's
business is as described on Schedule 3. The Company has all
necessary governmental permits and approvals to carry on such
business.
(h) INSURANCE. Schedule 2 lists all of the insurance
that will be maintained by the Company on and after the Closing.
The insurance listed on Schedule 2 is of a type and in an amount
which similarly situated businesses normally carry.
(i) PERMITS. The Company has all franchises, permits,
licenses and any similar authority necessary for the conduct of
its business as now being conducted by it, the lack of which
would be material to the Company, and believes it can obtain,
without undue burden or expense, any similar authority for the
conduct of its business as planned to be conducted. The Company
is not in default in any material respect under any of such
franchises, permits, license or other similar authority.
(j) BALANCE SHEET. Schedule 4 contains a balance
sheet and income statement for the last fiscal quarter with
respect to the Company, prepared in accordance with GAAP. There
has been no material adverse change in such financial statements
since the last quarter and such statements are representative of
the financial condition of the Company in the last twelve months.
(k) LICENSES. Schedule 5 lists all of the licenses
used by the Company (or to be used) to perform any services under
the Servicing Agreements and, as of the Closing, the licensor
shall have consented to allow the Company to service ▇▇▇▇▇▇
United Bank and United National Bank using such licenses.
(l) ENVIRONMENTAL ISSUES. To the best of the
Company's knowledge, information and belief, no toxic wastes,
pollutants asbestos, PCB's or other toxic substances are located
upon or beneath any of the premises owned, leased, or operated,
in whole or in part, by the Company (the "Premises") nor has any
debris been buried beneath the surface of the Premises, nor has
the Company caused any such substances to be located upon or
beneath or buried beneath the surface of the Premises nor have
the Premises ever been used by the Company, any tenant or any
other person at any time, whether or not during the term of any
lease or ownership by the Company, to generate, refine, produce,
store, handle, transfer, process or transport any "Hazardous
Substance" or "Hazardous Waste", as such terms are defined in
N.J.S.A. 58:10-23.11.(b)(k) and/or N.J.A.C. 7:1-3.3 and the
Premises will not have been, or be, so used by any party at any
time, nor has the Company or any other person caused, by action
or omission, the releasing, spilling, pumping, pouring, emitting,
emptying or dumping of such "Hazardous Substances" or "Hazardous
Wastes" into the waters of the State of New Jersey where damages
may have resulted to the lands, waters, fish, shellfish,
wildlife, biota, air or other resources owned, managed, held in
trust or otherwise controlled by the State of New Jersey. The
Company has received no notice of any outstanding violation of
any governmental law, rule, statute, ordinance or regulation
(including, but not limited to, environmental laws, rules,
statutes, ordinances or regulation) delivered at any time by or
on behalf of the Company in connection with the transactions
contemplated by this Agreement. HUBCO and the Company, jointly
and severally, agree to hold UNB harmless and indemnify it for
all losses, damages, and expenses incurred as a result of any
representation set forth herein not being true.
(m) FULL DISCLOSURE. The representations and
warranties of the Company contained in this Agreement, and the
other provisions of this Agreement, when read together, do not
contain any untrue statement of a material fact or omit any
material fact necessary to make the statements contained therein
or herein in view of the circumstances under which they were made
not misleading.
SECTION 4.02. REPRESENTATIONS AND WARRANTIES OF HUBCO,
▇▇▇▇▇▇ AND UNITED. Each of HUBCO, ▇▇▇▇▇▇ and United represents
and warrants to each other party that, as of the date of this
Agreement and as of the Closing date, with respect to itself:
(a) ORGANIZATION AND STANDING. Such party:
(i) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of
its incorporation; and
(ii) has all requisite corporate power and corporate
authority necessary to enable it to use its corporate name
and to own, lease or otherwise hold its properties and
assets and to carry on its business as presently conducted.
(b) AUTHORITY. Such party has all requisite corporate
power and corporate authority to enter into this Agreement and
the other Operative Agreements to which it is a party and to
consummate the Transactions. The execution and delivery by such
party of this Agreement and the other Operative Agreements to
which it is a party and the consummation by such party of the
Transactions have been duly authorized by all necessary corporate
action on the part of such party. This Agreement and the other
Operative Agreements to which it is a party have been, or will at
the Closing have been, duly executed and delivered by such party
and constitute, or will at the Closing constitute, its legal,
valid and binding obligations, enforceable against such party in
accordance with their respective terms. The execution and
delivery by such party of this Agreement and the other Operative
Agreements to which it is a party do not and did not, and the
consummation of the Transactions and compliance with the terms of
the Operative Agreements to which it is a party will not,
conflict with, result in any violation of or default (with or
without notice or lapse of time or both) under, give rise to a
right of termination, cancellation or acceleration of any
material obligation or to the loss of any material benefit under
or result in or require the creation, imposition or extension of
any lien or other encumbrance upon any of its properties or
assets under (A) any contract, (B) any provision of its
constitutive documents or (C) any judgment or law, except, with
respect to clauses (A) or (C), for such conflicts, violations,
defaults, rights or losses that, individually or in the
aggregate, would not have a material adverse effect on such
party's ability to perform its obligations under this Agreement
and the other Operative Agreements to which it is a party in
accordance with their respective terms. No governmental
approval, approval or consent of any other person is required to
be obtained or made by such party or any of its Affiliates in
connection with the execution and delivery of this Agreement or
the other Operative Agreements to which it is a party or the
consummation of the Transactions.
(c) BROKERS OR FINDERS. No Person is or will be
entitled to any broker's or finder's fee or any other commission
or similar fee from such party in connection with any of the
Transactions.
(d) SECURITIES ACT. The Initial Shares when purchased
by such party pursuant to this Agreement or otherwise were, or
are being, acquired for its own account for the purpose of
investment only and not with a view to any public distribution
thereof. Such party is an "accredited investor" within the
meaning of Rule 501 under the Securities Act.
(e) SOURCE OF FUNDS. Such party will not acquire the
Initial Shares to be purchased by it with the assets of any
"employee benefit plan" as defined in ERISA.
(f) LABOR RELATIONS. With respect to any employees of
such party who have or will accept employment with the Company in
accordance with Sections 3.01(d) and 6.03, there is no existing
collective bargaining agreement with a labor union covering such
employee and no other contract, agreement, suit or claim (or
basis therefore) between the current employer and the employee,
except for the employee confidentiality agreements attached
hereto as Exhibit F.
ARTICLE V
COVENANTS OF THE PARTIES PENDING THE CLOSING
SECTION 5.01. COVENANTS PENDING THE CLOSING. (a)
From the date of this Agreement to the Closing Date, each party
agrees (except (i) as expressly contemplated by this Agreement,
or (ii) to the extent that the other parties shall otherwise
consent in writing) that such party shall carry on its respective
business (to the extent that it relates to the Transactions only)
in the usual, regular and ordinary course in substantially the
same manner as heretofore conducted.
(b) Each party shall take all actions reasonably
necessary or appropriate to ensure that the conditions to Closing
set forth herein to be satisfied by such party are satisfied on
or prior to the Closing Date and to obtain (and cooperate with
the other parties in obtaining) the governmental approvals
required to be obtained or made by it in connection with any of
the Transactions, except that such party shall not be required to
accept or comply with any Burdensome Condition. Each party shall
afford to the other parties and their representatives access to
properties, books and records relating to the Company and to the
Transactions, subject to appropriate confidentiality
restrictions, sufficient to permit such other parties to perform
adequately their due diligence and business reviews.
SECTION 5.02. CONSTITUTIVE DOCUMENTS. The Company
shall have as its Certificate of Incorporation Exhibit D, but
reflecting a name change to United Financial Services, Inc. or
(if such name is unavailable) a name mutually agreed to by ▇▇▇▇▇▇
and United, and (ii) have adopted as its By-laws the By-laws
attached as Exhibit E, if not already adopted.
ARTICLE VI
CONTINUING COVENANTS OF THE COMPANY
SECTION 6.01. FINANCIAL STATEMENTS. So long as ▇▇▇▇▇▇
and United own Shares of the Company, the Company shall deliver
to each of ▇▇▇▇▇▇ and United:
(i) as soon as practicable following the end of each
fiscal year (and in any event not later than 60 days after
the end of such fiscal year), consolidated statements of
income, changes in stockholders' equity and cash flows of
the Company for such year and a consolidated balance sheet
of the Company as at the end of such year, together with
appropriate notes to such financial statements, in each case
setting forth in comparative form the corresponding figures
for the preceding fiscal year and from the budget for the
fiscal year then ended, together with an opinion directed to
the Company of independent public accountants to the effect
that such financial statements have been prepared in
conformity with GAAP applied on a basis consistent with
prior years;
(ii) as soon as practicable following the end of each
fiscal quarter (and in any event not later than 15 days
after the end of such fiscal quarter), consolidated
statements of income and cash flows of the Company for such
fiscal quarter and for the period from the beginning of the
then current fiscal year to the end of such fiscal quarter
and a consolidated balance sheet of the Company as at the
end of such fiscal quarter, in each case setting forth in
comparative form the corresponding figures for the
corresponding periods in the preceding fiscal year and from
the budget for such fiscal quarter and the then current
fiscal year to date, all in reasonable detail and
accompanied by a certificate from the principal accounting
or financial officer of the Company to the effect that such
financial statements have been prepared under such officer's
supervision and that, although such financial statements do
not contain the footnotes and other disclosures required to
be presented in interim financial statements by GAAP, such
financial statements have been prepared in accordance with
GAAP.
SECTION 6.02. BUSINESS PLAN. The Company, at the
Closing, and annually thereafter, shall adopt a Business Plan by
action of its Board of Directors. The initial Business Plan
shall (i) specify the charges to be made under the Servicing
Agreements, (ii) shall generally set forth that the servicing
charges under the Servicing Agreements have been calculated to be
sufficient to permit the Company to run at an approximately
break-even level or a slight profit, (iii) if there is a need for
additional funds to purchase new equipment to be used in the
business, the Board of Directors in its discretion may seek to
have ▇▇▇▇▇▇ and United contribute new capital in proportion to
their Share ownership or create a cash reserve from servicing
charges (and take into account such need for additional cash in
setting servicing charges). The Company shall at all times
conduct its business and affairs in a manner substantially
consistent with the Business Plan. If at any time the Company
does not have a Business Plan, the Company shall conduct its
business and affairs in a manner substantially consistent with
the Business Plan in effect for the most recent fiscal year for
which the Company had a Business Plan.
SECTION 6.03. EMPLOYEE MATTERS. (a) Immediately
following the Closing, the Company will make offers of employment
to such employees of ▇▇▇▇▇▇ and United as ▇▇▇▇▇▇ and United shall
agree and specify to the Company prior to the Closing Date. Such
offers shall expire after 30 days if not previously accepted.
The initial terms of employment by the Company of such employees
shall be set by the Company with the prior approval of ▇▇▇▇▇▇ and
United. ▇▇▇▇▇▇ and United will each use its best efforts (which
shall neither require nor preclude the provision of financial
incentives) to encourage its respective specified employees to
accept employment with the Company.
(b) After the Closing, ▇▇▇▇▇▇ or United may from time
to time provide the Company with the names of employees of such
party the employment of whom by the Company such party believes
would be advantageous to the Company. The Company shall be
responsible for decisions regarding the employment by the Company
of such employees. ▇▇▇▇▇▇ and United will each use its best
efforts (which shall neither require nor preclude the provision
of financial incentives) to encourage its respective named
employees to accept employment with the Company.
(c) The parties acknowledge that the Company is the
sole employer of its employees. Subject to the express terms of
this Agreement and the Amended Certificate, the Company will be
solely responsible for administering the employment relationship
between itself and all its employees. This responsibility shall
include the establishment and administration of personnel
policies and practices, supervision, assignment of work, hiring,
training, discipline and performance reviews, benefits,
compensation, other conditions of employment and termination of
employment. The term "employee" as used herein does not include
independent contractors, employees of independent contractors or
temporary employment agency employees.
(d) Each employee shall be required to sign an
employee confidentiality agreement which shall insure that
financial and customer information for each customer of the
Company shall remain confidential and not be shared with any
other customer or person.
SECTION 6.04. APPOINTMENT OF OFFICERS. Immediately
prior to or at the Closing, the Company shall act to appoint as
officers of the Company the persons agreed to by ▇▇▇▇▇▇ and
United and such officers may thereafter be removed or changed by
the Board of Directors of the Company.
SECTION 6.05. COMPLIANCE WITH LAW; BHC LIMITATIONS.
The Company shall operate its business in compliance with all
applicable laws and regulations and shall observe and comply with
any limitations imposed under Section 3 and the other applicable
provisions of the Bank Service Corporation Act unless notified in
writing to the contrary by the written opinion of legal counsel
to the Company.
ARTICLE VII
CONTINUING COVENANTS OF ▇▇▇▇▇▇ AND UNITED
SECTION 7.01. APPOINTMENT OF DIRECTORS; VOTING OF
SHARES. (a) Except as provided in Section 7.02, in each
election of directors of the Company (whether at a meeting or by
written consent in lieu of a meeting) ▇▇▇▇▇▇ and United shall
each vote or cause to be voted all Shares beneficially owned by
it, and otherwise use its respective best efforts, so as to elect
as the Directors (i) three persons selected in writing by ▇▇▇▇▇▇
and (ii) three persons selected in writing by United.
(b) Unless waived in writing, the Company shall
provide ▇▇▇▇▇▇ and United with not less than 15 days prior
written notice of any intended mailing of notice to stockholders
of the Company for a meeting at which directors are to be
elected.
(c) If any director shall cease to be a director of
the Company, ▇▇▇▇▇▇ and United shall each vote or cause to be
voted all Shares beneficially owned by it to immediately replace
such person with a nominee selected by the party who selected the
former director.
(d) If ▇▇▇▇▇▇ or United fails or refuses to vote its
Shares as required by, or votes its shares in contravention of
this Section, the other shall have an irrevocable proxy pursuant
to Section 5-19 of the BCA, coupled with an interest, so as to
vote such Shares in accordance with this Section, and ▇▇▇▇▇▇ and
United each hereby grants to the other such irrevocable proxy.
(e) This Section shall terminate upon the earliest of
(i) the fifteenth anniversary of the Closing Date or (ii) if
▇▇▇▇▇▇ or United (or their successors) cease to beneficially own
Shares in the Company.
SECTION 7.02. ELECTION OF DIRECTORS AFTER A CHANGE OF
CONTROL. If there occurs a Change of Control affecting HUBCO or
UNB, the shareholder of the Company the parent of which has not
undergone a Change of Control shall be entitled to elect four of
the six directors of the Company commencing immediately upon the
date of the Change of Control. The Company shall hold a
stockholder's meeting immediately following the Change of Control
to effectuate such election or the shareholders shall act by
unanimous written consent. If the subsidiary (i.e., either
▇▇▇▇▇▇ or United) of the parent company undergoing the Change of
Control terminates its Servicing Agreement in connection with the
Change of Control, then after the effective date of such
termination, all six directors of the Company shall be elected
solely by the shareholder not affected by the Change of Control.
A subsequent Change of Control affecting the shareholder then
entitled to elect four (or six) of the directors shall not
deprive such shareholder of its rights hereunder. All of the
provisions of Section 7.01, except 7.01(a), shall apply to this
Section 7.02, as if set forth in this Section 7.02.
SECTION 7.03. RESTRICTIONS ON DISPOSAL OF VOTING
SECURITIES BY ▇▇▇▇▇▇ AND UNITED. (a) Any purported Disposal of
Voting Securities in violation of this Section shall be void and
of no effect. This Section shall not apply to a Transfer of
Shares pursuant to Section 7.04.
(b) ▇▇▇▇▇▇ and United may not Dispose of any Shares of
the Company otherwise than in compliance with the Securities Act
and all other applicable Laws.
(c) ▇▇▇▇▇▇ and United may not Dispose of any Shares of
the Company without the prior written consent of the other,
except as set forth in paragraph (d).
(d) After the fifth anniversary of the Closing, ▇▇▇▇▇▇
or United (the "Transferring Holder") may transfer any Shares for
cash, and only for cash, pursuant to the terms of this paragraph
(d). The Transferring Holder must first give the other party 30
days prior written notice of its intention to Transfer for cash
any Shares, identifying the proposed transferee and specifying
all proposed terms of the Transfer. The notice shall be
accompanied by a copy of a bona fide written proposal by a third
party to purchase shares. Such written notice shall constitute
an offer by the Transferring Holder to the other, irrevocable for
30 days, to sell all (but not less than all) the Shares to the
other party. Within 30 days after receipt of the notice the
receiving party shall give an irrevocable written notice to the
Transferring Holder whether (i) such other party consents to the
proposed Transfer or (ii) such other party elects to purchase the
Shares so offered for the same price as that specified in the
notice. If such other party fails to give such a notice by the
end of such 30 day period, such other party shall be deemed to
have consented to the proposed Transfer. If such other party
expressly consents to the Transfer or consents to the Transfer by
failure to give such notice within 30 days, the Transferring
Holder shall have the right, exercisable not later than 120 days
after the date of giving the original written notice, to sell the
Shares to the proposed transferee on the terms set forth in the
notice. Neither ▇▇▇▇▇▇ nor United may Transfer any Shares to a
third party unless the proposed buyer shall have (A) agreed in
writing to be bound by this Section 7.03 with respect to
subsequent Transfers and (B) acknowledged in writing its
understanding and acceptance of the other applicable terms
hereof. The closing of any purchase and sale of Shares to ▇▇▇▇▇▇
or United pursuant to this paragraph shall take place within 30
days of the receipt by the Transferring Holder of the acceptance
of the offer. At any such closing, (i) the Transferring Holder
shall deliver to the purchaser certificates representing the
Shares being purchased, and duly endorsed in favor of the
purchaser, against payment of the applicable purchase price by
wire transfer of same day funds and (ii) the Transferring Holder
shall give customary representations and warranties.
SECTION 7.04. BUY-OUT PROVISIONS. (a) If (i) ▇▇▇▇▇▇
holds any Shares and a Change of Control of UNB occurs, (ii)
United holds any Shares and a Change of Control of HUBCO occurs
or (iii) more than three years shall have passed since the
Closing, ▇▇▇▇▇▇ continues to hold Shares and United continues to
hold Shares and either ▇▇▇▇▇▇ or United elects to utilize this
Section, or (iv) ▇▇▇▇▇▇ and United continue to hold the Initial
Shares and have reached a disagreement and such disagreement
shall not have been resolved within a 60-day period and the two
CEOs shall have agreed that an impasse is declared with respect
to such matter, then either ▇▇▇▇▇▇ or United may utilize the buy-
out provisions of this Section.
(b) If any of the events set forth in (a) have
occurred and the only servicing that the Company is undertaking
is for ▇▇▇▇▇▇ and United, either party may request that the other
party purchase its shares for cost. "Cost" shall mean the cost
of the shares to United on the Closing of this Agreement. In the
event either party exercises this right, the party purchasing
these shares shall receive representations from the other party
that are typical in such a situation and shall have the benefit
of all existing Operative Agreements. However, the party whose
shares have been purchased may terminate the Servicing Agreement
by terminating the service on one year's notice and paying a six
month termination fee and the Company Lease may also be
terminated on one year's prior notice by the party terminating
the Agreement. A Closing shall be held at such time and date as
the parties shall agree.
If the Company is servicing another bank or financial
institution, at the time a party offers to sell its shares under
the provisions of this Section 7.04, then the following rules
shall apply: within ten business days of a written notice from
the other party that it is offering to sell its shares, ▇▇▇▇▇▇
and United shall each elect an independent appraiser, nationally
recognized as qualified to appraise data processing businesses,
each of whom shall deliver an appraisal of the Fair Market Value
to an independent person (to be agreed by ▇▇▇▇▇▇ and United and,
in the absence of such agreement, the independent accountants of
the Company) within 20 Business Days of its selection as an
appraiser. If the higher appraisal is more than 20% greater than
the lower appraisal, the independent person shall notify ▇▇▇▇▇▇
and United and each appraiser of that fact (but not of the
amounts). In such a case, the two appraisers shall within 10
Business Days of such notification from the independent person
agree on a third independent appraiser nationally recognized as
qualified to appraise businesses in the data processing industry,
who shall deliver its appraisal of Fair Market Value to the
independent person within 20 Business Days of the selection of
such third appraiser, and Fair Market Value shall be the median
of the three appraisals. If the higher of the first two
appraisals is not more than 20% greater than the lower of the
first two appraisals, the Fair Market Value shall be the
arithmetic mean of the first two appraisals and there shall not
be any third appraisal. The independent person shall promptly
give written notice of Fair Market Value to each of ▇▇▇▇▇▇ and
United.
▇▇▇▇▇▇ and United shall each submit a sealed notice (a
"Notice") to the independent person within 30 days of the
determination of Fair Market Value, stating that such party will
or will not purchase for cash all the Shares owned by the other
at the percentage of Fair Market Value represented by such
Shares. Upon receipt of both ▇▇▇▇▇▇'▇ and United's Notice, and
in any event no later than the end of such 30 day period, the
independent person shall give written notice to ▇▇▇▇▇▇ and United
of the contents of each written notice to ▇▇▇▇▇▇ and United of
the Notice received by the independent person.
If one party states in its Notice that it will purchase
and the other states in its Notice that it will not purchase (or
fails to submit a Notice within the 30 day period), the former
will purchase all the Shares owned by the latter, and the latter
will sell all such Shares to the former, at the percentage of
Fair Market Value represented by such Shares.
If ▇▇▇▇▇▇ and United each state in its respective
Notice that it will purchase, the party who first requested the
buyout shall sell all the Shares owned by it to the other, and
the other party shall purchase all such Shares, at the percentage
of Fair Market Value represented by such Shares.
If ▇▇▇▇▇▇ and United each state in its respective
Notice that it will not purchase, then the party that first
requested the buy-out shall purchase the Shares of the other.
(c) The closing of any purchase and sale of Shares
pursuant to the Section shall take place on the date and at the
location designated by the purchaser in a written notice to the
seller. Such date shall not be more than 30 nor less than 10
days after the date on which the obligations under this Section
to purchase and sell such Shares arose, except that such 30 day
period shall be extended as necessary in order to comply with any
applicable law. At any such closing, (i) the seller shall
deliver to the purchaser certificates representing all Shares
owned by the seller, duly endorsed in favor of the purchaser,
against payment of the applicable purchase price by wire transfer
of same day funds and (ii) the seller shall give customary
representations and warranties comparable to those contained in
this Agreement relating to absence of liens and the purchaser
shall give customary representations and warranties as contained
in this Agreement.
(d) If the buy-out occurs by reason of a Change of
Control of HUBCO or UNB, such party shall pay all costs of the
appraisals and any related court proceedings incurred by the
other party in enforcing this Agreement. Otherwise, ▇▇▇▇▇▇ and
United will pay all costs of the appraisals on an equal basis and
each shall bear its own costs.
SECTION 7.05. NOTICE OF CHANGE OF CONTROL. HUBCO and
UNB shall notify the other parties promptly upon the occurrence
of a Change of Control of such party (but not later than 30 days
after the earlier of (i) the occurrence of, or (ii) the execution
of an agreement, the consummation of which will result in, a
Change of Control). The obligations of HUBCO or UNB under this
Section shall terminate upon the other ceasing to own Shares.
SECTION 7.06. HUBCO AND ▇▇▇▇▇▇ INDEMNIFICATION. HUBCO
and ▇▇▇▇▇▇ shall indemnify and hold harmless the Company from (i)
any loss, expense (including reasonable attorneys fees), damage,
claim or suit arising out of the activities or business
operations of the Company prior to the Closing (but not for any
activities or business operations thereafter), (ii) any liability
not disclosed on the balance sheet of the Company annexed hereto
as Schedule 4 and (iii) any sales tax or use tax incurred by the
Company on or prior to the Closing or in connection with the
transfer of the equipment on Schedule 1 or Schedule 1-L to the
Company. United shall have the right to enforce this provision
on behalf of the Company if the Company fails to do so. The
obligation of HUBCO and ▇▇▇▇▇▇ under this Section shall expire
two years after the Closing except with respect to any claims
made by the Company (or United) against ▇▇▇▇▇▇ prior to the
expiration of such two year period.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
SECTION 8.01. TERMINATION. This Agreement may be
terminated prior to the Closing (but not thereafter):
(a) By mutual written consent of the parties hereto.
(b) By United if there shall have occurred a material
adverse change in the business, operations, assets, or financial
condition of the Company from that disclosed by the Company on
the date of this Agreement.
(c) By ▇▇▇▇▇▇ or United if any condition to Closing
specified under Article III hereof applicable to such party
cannot reasonably be met after giving the other party a
reasonable opportunity to cure any such condition.
SECTION 8.02. EFFECT OF TERMINATION. In the event of
the termination and abandonment of this Agreement by either
▇▇▇▇▇▇ or United pursuant to Section 8.01, this Agreement shall
forthwith become void and have no effect, without any liability
on the part of any party or its officers, directors or
stockholders, except as provided in Section 9.01. Nothing
contained herein, however, shall relieve any party from any
liability for any breach of this Agreement.
SECTION 8.03. AMENDMENT. This Agreement may be
amended by mutual agreement of the parties. This Agreement may
not be amended except by an instrument in writing signed on
behalf of HUBCO, ▇▇▇▇▇▇, UNB, United and the Company.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. EXPENSES. 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, except that the costs of Pitney, ▇▇▇▇▇▇,
▇▇▇▇ & ▇▇▇▇▇ shall be borne by the Company or one-half by each of
United and ▇▇▇▇▇▇. In the event that this Agreement is
terminated pursuant to Section 8.01, each of United and ▇▇▇▇▇▇
shall bear 50% of the costs of Pitney, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ and
50% of the loss incurred by the Company upon ordering equipment,
attributable to the anticipated servicing of United.
SECTION 9.02. NOTICES. All notices or other
communications which are required or permitted hereunder shall be
in writing and sufficient if delivered personally or sent by
telecopier with confirming copy sent the same day by registered
or certified mail, postage prepaid, as follows:
(a) If to ▇▇▇▇▇▇ or HUBCO, to:
▇▇▇▇▇▇ United Bank
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President and Chief Executive Officer
Telecopier No. ▇▇▇-▇▇▇-▇▇▇▇
Copy to:
▇▇▇▇▇▇ United Bank
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇. ▇▇▇▇ Van Borkulo-▇▇▇▇▇, Esq.
Telecopier No. ▇▇▇-▇▇▇-▇▇▇▇
(b) If to UNB or United, to:
United National Bank
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Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chairman, President and CEO
Telecopier No. ▇▇▇-▇▇▇-▇▇▇▇
Copy to:
United National Bank
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Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopier No. ▇▇▇-▇▇▇-▇▇▇▇
(c) If to Company, copy to:
Pitney, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇
Delivery:
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Mail:
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Attn.: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
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 so delivered or telecopied and
mailed.
SECTION 9.03. PARTIES IN INTEREST. This Agreement
shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and permitted
assigns. No assignment of this Agreement may be made except upon
the written consent of the other parties hereto. 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.
SECTION 9.04. SURVIVAL OF WARRANTIES. The
representations, warranties and covenants of the parties
contained in or made pursuant to this Agreement shall survive the
execution and delivery of this Agreement and the Closing;
provided, however, that the representations and warranties need
only be accurate as of the date of such execution and delivery
and as of the Closing.
SECTION 9.05. ENTIRE AGREEMENT. This Agreement, which
includes the Exhibits and 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, including the prior agreement dated
as of August 11, 1995 among UNB, HUBCO and the Company.
SECTION 9.06. 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.
SECTION 9.07. GOVERNING LAW. This Agreement shall be
governed by the laws of the State of New Jersey and the United
States of America, as applicable, without giving effect to the
principles of conflicts of laws thereof.
SECTION 9.08. 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, ▇▇▇▇▇▇, United, UNB, HUBCO and the
Company have caused this Agreement to be executed by their duly
authorized officers as of the day and year first above written.
ATTEST: ▇▇▇▇▇▇ UNITED BANK
By: /s/ ▇. ▇▇▇▇ VAN BORKULO-▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
President
ATTEST: UNITED NATIONAL BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Executive Vice President
ATTEST: HUB FINANCIAL SERVICES, INC.
By: /s/ ▇. ▇▇▇▇ VAN BORKULO-▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
Vice President
ATTEST: HUBCO, INC.
By: /s/ ▇. ▇▇▇▇ VAN BORKULO-▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
President
ATTEST: UNITED NATIONAL BANCORP
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Treasurer