AGREEMENT AND PLAN OF MERGER
DATED AS OF NOVEMBER 1, 1999
AMONG
INTERVEST BANCSHARES CORPORATION
ICNY ACQUISITION CORPORATION
AND
INTERVEST CORPORATION OF NEW YORK
TABLE OF CONTENTS
ARTICLE 1....................................................................1
THE MERGER...............................................................1
Section 1.1. The Merger............................................1
Section 1.2. Effective Time........................................1
Section 1.3. Closing of the Merger.................................2
Section 1.4. Effects of the Merger.................................2
Section 1.5. Certificate of Incorporation and Bylaws...............2
Section 1.6. Directors.............................................2
Section 1.7. Officers..............................................2
Section 1.8. Merger Consideration; Conversion of Shares............2
Section 1.9. Exchange of Certificates..............................3
ARTICLE 2....................................................................4
REPRESENTATIONS AND WARRANTIES OF THE COMPANY............................4
2.1. CAPITAL STRUCTURE OF THE COMPANY...........................4
2.2. ORGANIZATION, STANDING AND AUTHORITY OF THE COMPANY........4
2.3. OWNERSHIP OF THE COMPANY SUBSIDIARIES;
CAPITAL STRUCTURE OF THE COMPANY SUBSIDIARIES..............5
2.4. ORGANIZATION, STANDING AND AUTHORITY OF THE
COMPANY SUBSIDIARIES.......................................5
2.5. AUTHORIZED AND EFFECTIVE AGREEMENT.........................5
2.6. SEC DOCUMENTS; REGULATORY FILINGS..........................6
2.7. FINANCIAL STATEMENTS; BOOKS AND RECORDS; MINUTE BOOKS......7
2.8. MATERIAL ADVERSE CHANGE....................................7
2.9. ABSENCE OF UNDISCLOSED LIABILITIES.........................7
2.10. PROPERTIES.................................................7
2.11. LOANS......................................................8
2.12. TAX MATTERS................................................8
2.13. EMPLOYEE BENEFIT PLANS.....................................9
2.14. CERTAIN CONTRACTS..........................................9
2.15. LEGAL PROCEEDINGS.........................................10
2.16. COMPLIANCE WITH LAWS......................................10
2.17. LABOR MATTERS.............................................11
2.18. BROKERS AND FINDERS.......................................11
2.19. INSURANCE.................................................11
2.20. ENVIRONMENTAL LIABILITY...................................11
2.21. INTELLECTUAL PROPERTY.....................................12
2.22. INSIDER INTERESTS.........................................12
2.23. YEAR 2000.................................................12
2.24. TAX TREATMENT.............................................12
ARTICLE 3...................................................................13
REPRESENTATIONS AND WARRANTIES OF PARENT AND ACQUISITION................13
Section 3.1. Organization.........................................13
Section 3.2. Capitalization of Parent and its Subsidiaries........13
Section 3.3. Authority Relative to this Agreement.................13
Section 3.4. SEC Reports..........................................14
Section 3.5. Consents and Approvals; No Violations................14
Section 3.6. Litigation...........................................14
Section 3.7. Tax Treatment........................................15
Section 3.8. Brokers..............................................15
Section 3.9. No Prior Activities..................................15
Section 3.10. No Undisclosed Liabilities; Absence of Changes.......15
Section 3.11. Compliance with Applicable Law.......................15
Section 3.12. Representations Complete.............................15
ARTICLE 4...................................................................16
COVENANTS...............................................................16
Section 4.1. Conduct of Business of the Company...................16
Section 4.2. No Solicitation or Negotiation.......................17
Section 4.3. Meeting of Stockholders..............................18
Section 4.4. Sale of Shares; Stockholder Matters..................18
Section 4.5. Access to Information................................18
Section 4.6. Confidentiality......................................18
Section 4.7. Expenses.............................................19
Section 4.8. Consent..............................................19
Section 4.9. Reasonable Efforts...................................19
Section 4.10. Notification of Certain Matters......................20
Section 4.11 Additional Documents and Further Assurances..........20
Section 4.12. Certain Filings; Reasonable Efforts..................20
Section 4.13. Public Announcements.................................20
ARTICLE 5...................................................................21
CONDITIONS TO CONSUMMATION OF THE MERGER................................21
Section 5.1. Conditions to Each Party's Obligations to
Effect the Merger....................................21
Section 5.2. Conditions to the Obligations of the Company.........21
Section 5.3. Conditions to the Obligations of Parent and
Acquisition..........................................22
ARTICLE 6...................................................................23
TERMINATION; AMENDMENT; WAIVER..........................................23
Section 6.1. Termination..........................................23
Section 6.2. Effect of Termination................................24
Section 6.3. Amendment............................................24
Section 6.4. Extension; Waiver....................................24
ARTICLE 7...................................................................24
MISCELLANEOUS...........................................................24
Section 7.1. Nonsurvival of Representations and Warranties........24
Section 7.2. Entire Agreement; Assignment.........................24
Section 7.3. Validity.............................................24
Section 7.4. Notices..............................................24
Section 7.5. Governing Law and Venue; Waiver of Jury Trial........25
Section 7.6. Descriptive Headings.................................25
Section 7.7. Parties in Interest..................................25
Section 7.8. Certain Definitions..................................25
Section 7.9. Personal Liability...................................26
Section 7.10. Counterparts.........................................27
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") dated as of November
1, 1999, is by and among INTERVEST CORPORATION OF NEW YORK, a New York
corporation (the "Company"), INTERVEST BANCSHARES CORPORATION, a Delaware
corporation (the "Parent"), and ICNY ACQUISITION CORPORATION, a New York
corporation and a wholly owned subsidiary of Parent ("Acquisition"), Capitalized
terms not otherwise defined herein shall have the meanings ascribed to such
terms in Section 7.8 of this Agreement.
WHEREAS, the Boards of Directors of the Company, Parent and Acquisition
have each (i) determined that the Merger (as defined below) is advisable and
fair and in the best interests of their respective stockholders and (ii)
approved the Merger upon the terms and subject to the conditions set forth in
this Agreement; and
WHEREAS, for Federal income tax purposes it is intended that the Merger
qualify as a reorganization under the provisions of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code"); and
WHEREAS, the Company, Parent and Acquisition desire to make certain
representations and warranties and other agreements in connection with the
Merger,
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties, covenants and agreements herein contained, and
intending to be legally bound hereby, the Company, Parent and Acquisition hereby
agree as follows:
ARTICLE 1
THE MERGER
Section 1.1. The Merger. At the Effective Time (as defined below) and upon the
terms and subject to the conditions of this Agreement and in accordance with the
New York Business Corporation Law (the "NYBCL"), Acquisition shall be merged
with and into the Company (the "Merger"). Following the Merger, the Company
shall continue as the surviving corporation (the "Surviving Corporation") and
the separate corporate existence of Acquisition shall cease. The Merger is
intended to qualify as a tax-free reorganization under Section 368(a) of the
Code. Parent, as the sole stockholder of Acquisition, hereby approves the Merger
and this Agreement.
Section 1.2. Effective Time. Subject to the terms and conditions set forth in
this Agreement, on the Closing Date (as defined in Section 1.3), (a) a
Certificate of Merger (the "Certificate of Merger") shall be duly executed and
acknowledged by Acquisition and the Company and thereafter delivered for filing
to the Secretary of State of the State of New York for filing pursuant to
Section 904 of the NYBCL and (b) the parties shall make such other filings with
the Secretary of State of the State of New York as shall be necessary to effect
the Merger. The Merger shall become effective at such time as a properly
executed copy of the Certificate of Merger is duly filed with the Secretary of
State of the State of New York in accordance with Section 251 of the DGCL, or
such later time as Parent and the Company may agree upon and as may be set forth
in the Certificate of Merger (the time the Merger becomes effective being
referred to herein as the "Effective Time").
Section 1.3. Closing of the Merger. The closing of the Merger (the "Closing")
will take place at a time and on a date (the "Closing Date") to be specified by
the parties, which shall be no later than the second business day after
satisfaction (or waiver) of the latest to occur of the conditions set forth in
Article 5, at the offices of the Parent, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ unless another time, date or place is agreed to in writing
by the parties hereto.
Section 1.4. Effects of the Merger. The Merger shall have the effects set forth
in the NYBCL. Without limiting the generality of the foregoing and subject
thereto, at the Effective Time, all the properties, rights, privileges, powers
and franchises of the Company and Acquisition shall vest in the Surviving
Corporation, and all debts, liabilities and duties of the Company and
Acquisition shall become the debts, liabilities and duties of the Surviving
Corporation.
Section 1.5. Certificate of Incorporation and Bylaws. The Certificate of
Incorporation of the Company in effect at the Effective Time shall be the
Certificate of Incorporation of the Surviving Corporation until amended in
accordance with Applicable Law. The bylaws of the Company in effect at the
Effective Time shall be the bylaws of the Surviving Corporation until amended in
accordance with Applicable Law.
Section 1.6. Directors. The directors of the Company at the Effective Time shall
be the initial directors of the Surviving Corporation, each to hold office in
accordance with the Certificate of Incorporation and bylaws of the Surviving
Corporation until such director's successor is duly elected or appointed and
qualified.
Section 1.7. Officers. The officers of the Company at the Effective Time shall
be the initial officers of the Surviving Corporation, each to hold office in
accordance with the Certificate of Incorporation and bylaws of the Surviving
Corporation until such officer's successor is duly elected or appointed and
qualified.
Section 1.8. Merger Consideration; Conversion of Shares.
(a) At the Effective Time, each share of common stock and Class B Stock
of the Company (individually a "Share" and collectively the "Shares") issued and
outstanding immediately prior to the Effective Time shall, by virtue of the
Merger and without any action on the part of Acquisition, the Company or the
holder thereof, be converted into the right to receive a number of fully paid
and nonassessable shares of Class A common stock, par value $1.00 per share, of
Parent ("Parent Common Stock") equal to the Exchange Ratio (as defined below).
(b) The "Exchange Ratio" shall be 26,189 shares of Parent Common Stock
for each Share, so that an aggregate of 1,250,000 shares of Parent Common Stock
shall be issued for the 47.73 issued and outstanding Shares.
(c) If, between the date of this Agreement and the Effective Time, the
outstanding shares of Parent Common Stock or the Shares shall have been changed
into a different number of shares or a different class by reason of any stock
dividend, subdivision, reclassification, recapitalization, split, combination or
exchange of shares, then the Exchange Ratio shall be correspondingly adjusted to
reflect such stock dividend, subdivision, reclassification, recapitalization,
split, combination or exchange of shares.
Section 1.9. Exchange of Certificates.
(a) Following the Effective Time, Parent shall instruct its transfer
agent to issue certificates representing the appropriate number of shares of
Parent Common Stock issuable pursuant to Section 1.8 in exchange for outstanding
Shares.
(b) Not later than two (2) business days after the Effective Time,
Parent shall mail to each holder of record of a certificate or certificates that
immediately prior to the Effective Time represented outstanding Shares (the
"Certificates") and whose shares were converted into the right to receive shares
of Parent Common Stock pursuant to Section 1.8: (i) a letter of transmittal
(which shall specify that delivery shall be effected and risk of loss and title
to the Certificates shall pass only upon delivery of the Certificates to the
transfer agent and shall be in such form and have such other provisions as
Parent and the Company may reasonably specify) and (ii) instructions for use in
effecting the surrender of the Certificates in exchange for certificates
representing shares of Parent Common Stock. Upon surrender of a Certificate for
cancellation to the transfer agent together with such letter of transmittal duly
executed, the holder of such Certificate shall be issued a certificate
representing that number of whole shares of Parent Common Stock, and the
Certificate so surrendered shall forthwith be canceled. In the event of a
transfer of ownership of Shares that is not registered in the transfer records
of the Company, a certificate representing the proper number of shares of Parent
Common Stock shall be issued to a transferee if the Certificate representing
such Shares is presented to the transfer 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 1.9, each Certificate shall be deemed at any time
after the Effective Time to represent only the right to receive upon such
surrender the certificate representing shares of Parent Common Stock.
(c) No dividends or other distributions declared or made after the
Effective Time with respect to Parent 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 Parent Common Stock represented thereby, until the
holder of record of such Certificate shall surrender such Certificate. Subject
to the effect of Applicable Law, following surrender of any such Certificate
there shall be paid to the record holder of the certificates representing whole
shares of Parent Common Stock issued in exchange therefor without interest (i)
and the amount of dividends or other distributions with a record date after the
Effective Time theretofore paid with respect to such number of whole shares of
Parent 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 subsequent to surrender payable with
respect to such whole shares of Parent Common Stock.
(d) All shares of Parent Common Stock issued as part of the Merger
Consideration upon the surrender for exchange of Shares in accordance with the
terms hereof shall be deemed to have been issued in full satisfaction of all
rights pertaining to such Shares; subject, however, to the Surviving
Corporation's obligation to pay any dividends or make any other distributions
with a record date prior to the date hereof that remain unpaid at the Effective
Time, and there shall be no further registration of transfers on the stock
transfer books of the Surviving Corporation of the Shares that were outstanding
immediately prior to the Effective Time. If, after the Effective Time,
Certificates are presented to the Surviving Corporation for any reason, they
shall be canceled and exchanged as provided in this Article I.
(e) No fractions of a share of Parent Common Stock shall be issued in
the Merger. Rather, an aggregate of 1,250,000 shares of Parent Common Stock will
be allocated among the holders of Shares such that each holder of Shares shall
receive a whole number of shares, determined by rounding after application
of the Exchange Ratio, with the procedure for such rounding to be determined by
the Company. The Company shall, prior to the Closing Date, furnish Parent with a
list of its shareholders and the whole number of shares of Parent Common Stock
to be issued to each.
(f) If any certificate for shares of Parent Common Stock is to be
issued in a name other than that in which the Certificate surrendered in
exchange therefor is registered, it will be a condition of the issuance thereof
that the Certificate so surrendered will be properly endorsed and otherwise in
proper form for transfer and that the person requesting such exchange will have
paid to Parent or the transfer agent any transfer or other taxes required by
reason of the issuance of a certificate for shares of Parent Common Stock in any
name other than that of the registered holder of the Certificate surrendered, or
established to the satisfaction of Parent or the transfer agent that such tax
has been paid or is not payable.
(g) Notwithstanding anything to the contrary in this Section 1.9, none
of the transfer agent, the Surviving Corporation or any party hereto shall be
liable to any person for any amount properly paid to a public official pursuant
to any applicable abandoned property, escheat or Applicable Law.
(h) It is intended by the Company that the Merger shall constitute a
reorganization within the meaning of Section 368 of the Internal Revenue Code
(the "Code"). Neither Parent nor Acquisition makes any representation that the
transaction will in fact constitute a reorganization.
(i) The shares of Parent Common Stock to be issued in connection with
the Merger will be issued in a transaction exempt from registration under the
Securities Act, by reason of Section 4(2) thereof.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Parent and Acquisition as
follows:
2.1. CAPITAL STRUCTURE OF THE COMPANY
The authorized capital stock of the Company consists of 200 shares of
common stock, no par value and 100 shares of Class B stock, no par value of
which, as of the date hereof, 31.84 shares of Common Stock and 15.89 shares of
Class B stock are issued and outstanding.
2.2. ORGANIZATION, STANDING AND AUTHORITY OF THE COMPANY
The Company is a duly organized corporation, validly existing and in
good standing under the laws of New York with full corporate power and authority
to carry on its business as now conducted and is duly licensed or qualified to
do business in the states of the United States and foreign jurisdictions where
its ownership or leasing of property or the conduct of its business requires
such qualification, except where the failure to be so licensed or qualified
would not have a Material Adverse Effect on the Company.
2.3. OWNERSHIP OF THE COMPANY SUBSIDIARIES; CAPITAL STRUCTURE
OF THE COMPANY SUBSIDIARIES
Except as Previously Disclosed, as of the date hereof, the Company does
not own, directly or indirectly, 5% or more of the outstanding capital stock or
other voting securities of any corporation, bank or other organization except
the Company Subsidiaries as Previously Disclosed. Except as Previously
Disclosed, the outstanding shares of capital stock or other equity interests of
each Company Subsidiary have been duly authorized and validly issued and are
fully paid and (except as provided by applicable law) nonassessable and all such
shares or equity interests are directly or indirectly owned by the Company free
and clear of all liens, claims and encumbrances. No Company Subsidiary has or is
bound by any Rights which are authorized, issued or outstanding with respect to
the capital stock or other equity interests of any Company Subsidiary and,
except as Previously Disclosed, there are no agreements, understandings or
commitments relating to the right of the Company to vote or to dispose of said
shares. None of the shares of capital stock or other equity interests of any
Company Subsidiary has been issued in violation of the preemptive rights of any
person.
2.4. ORGANIZATION, STANDING AND AUTHORITY OF THE COMPANY
SUBSIDIARIES
Each Company Subsidiary is a duly organized corporation, banking
association or other organization, validly existing and in good standing under
applicable laws. Each Company Subsidiary (i) has full power and authority to
carry on its business as now conducted, and (ii) is duly licensed or qualified
to do business in the states of the United States and foreign jurisdictions
where its ownership or leasing of property or the conduct of its business
requires such licensing or qualification, except where failure to be so licensed
or qualified would not have a Material Adverse Effect on the Company. Each
Company Subsidiary has all federal, state, local and foreign governmental
authorizations necessary for it to own or lease its properties and assets and to
carry on its business as it is now being conducted, except where the failure to
be so authorized would not have a Material Adverse Effect on the Company.
2.5. AUTHORIZED AND EFFECTIVE AGREEMENT
(a) The Company has all requisite corporate power and authority to
enter into and perform all of its obligations under this Agreement and Plan of
Merger. The execution and delivery of this Agreement and Plan of Merger and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action in respect thereof on the part of
the Company.
(b) Assuming the accuracy of the representation contained in Section
3.5(b) hereof, this Agreement and Plan of Merger constitutes the legal, valid
and binding obligation of the Company, enforceable against it in accordance with
its terms, subject as to enforceability, to bankruptcy, insolvency and other
laws of general applicability relating to or affecting creditors' rights and to
general equity principles.
(c) Except as Previously Disclosed, neither the execution and delivery
of this Agreement and Plan of Merger nor consummation of the transactions
contemplated hereby, nor compliance by the Company with any of the provisions
hereof shall (i) conflict with or result in a breach of any provision of the
articles or certificate of incorporation or association, charter or bylaws of
the Company or any Company Subsidiary, (ii) assuming the consents and approvals
contemplated and the consents and approvals which are Previously Disclosed are
duly obtained, constitute or result in a breach of any term, condition or
provision of, or constitute a default under, or give rise to any right of
termination, cancellation or acceleration with respect to, or result in the
creation of any lien, charge or encumbrance upon any property or asset of the
Company or any Company Subsidiary pursuant to, any note, bond, mortgage,
indenture, license, agreement or other instrument or obligation, or (iii)
assuming the consents and approvals contemplated hereby and the consents and
approvals which are Previously Disclosed are duly obtained, violate any order,
writ, injunction, decree, statute, rule or regulation applicable to the Company
or any Company Subsidiary, except (in the case of clauses (ii) and (iii) above)
for such violations, rights, conflicts, breaches, creations or defaults which,
either individually or in the aggregate, would not have a Material Adverse
Effect on the Company.
(d) Other than as contemplated hereby and except as Previously
Disclosed, no consent, approval or authorization of, or declaration, notice,
filing or registration with, any governmental or regulatory authority, or any
other person, is required to be made or obtained by the Company or any Company
Subsidiary on or prior to the Closing Date in connection with the execution,
delivery and performance of this Agreement and the Plan of Merger or the
consummation of the transactions contemplated hereby or thereby. Neither the
Company nor any Company Subsidiary is aware of any reason why the conditions set
forth in this Agreement and Plan of Merger will not be satisfied without undue
delay and without the imposition of any condition or requirement of the type
referred to in the provisions thereof.
2.6. SEC DOCUMENTS; REGULATORY FILINGS
The Company has filed all required forms, reports and documents
("Company SEC Reports") with the SEC since January 1, 1997, each of which
complied at the time of filing in all material respects with all applicable
requirements of the Securities Act and the Exchange Act, each law as in effect
on the dates such forms, reports and documents were filed. None of such Company
SEC Reports, including any financial statements or schedules included or
incorporated by reference therein, contained when filed any untrue statement of
a material fact or omitted to state a material fact required to be stated or
incorporated by reference therein or necessary in order to make the statements
therein in light of the circumstances under which they were made not misleading,
except to the extent superseded by a Company SEC Report filed subsequently and
prior to the date hereof. The audited consolidated financial statements of the
Company included in the Company SEC Reports fairly present in conformity in all
material respects with generally accepted accounting principles applied on a
consistent basis (except as may be indicated in the notes thereto) the
consolidated financial position of the Company and its consolidated subsidiaries
as of the dates thereof and their consolidated results of operations and changes
in financial position for the periods then ended. The Company and each Company
Subsidiary has filed all reports required by statute or regulation to be filed
with any federal or state agency, except where the failure to so file would not
have a Material Adverse Effect on the Company, and such reports were prepared in
accordance with the applicable statutes, regulations and instructions in
existence as of the date of filing of such reports in all material respects, and
none of the reports contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements contained
therein not misleading.
2.7. FINANCIAL STATEMENTS; BOOKS AND RECORDS; MINUTE BOOKS
The financial statements filed by the Company in the Company SEC
Reports (the "Company Financial Statements"), prior to the date of this
Agreement fairly present in all material respects, and the Company Financial
Statements filed by the Company after the date of this Agreement will fairly
present in all material respects the consolidated financial position of the
Company and its consolidated Subsidiaries as of the dates indicated and the
consolidated results of operations, changes in stockholders' equity and cash
flows of the Company and its consolidated Subsidiaries for the periods then
ended and each such financial statement has been or will be, as the case may be,
prepared in conformity with generally accepted accounting principles applied on
a consistent basis. The books and records of the Company and each Company
Subsidiary fairly reflect in all material respects the transactions to which it
is a party or by which its properties are subject or bound. Such books and
records have been properly kept and maintained and are in compliance with all
applicable legal and accounting requirements in all material respects. The
minute books of the Company and each Company Subsidiary contain records which
are accurate in all material respects of all corporate actions of each of their
respective stockholders and board of directors (including committees of their
respective board of directors).
2.8. MATERIAL ADVERSE CHANGE
Except as Previously Disclosed, the Company has not, on a consolidated
basis, suffered any change in its financial condition, results of operations or
business since December 31, 1998 which individually or in the aggregate with any
other such changes would constitute a Material Adverse Effect with respect to
the Company.
2.9. ABSENCE OF UNDISCLOSED LIABILITIES
Neither the Company nor any Company Subsidiary has any liability
(contingent or otherwise), excluding contractually assumed contingencies, that
is material to the Company on a consolidated basis, or that, when combined with
all similar liabilities, would be material to the Company on a consolidated
basis, except as Previously Disclosed, as disclosed in the Company Financial
Statements filed with the SEC prior to the date hereof and except for
liabilities incurred in the ordinary course of business subsequent to September
30, 1999.
2.10. PROPERTIES
Except as Previously Disclosed, the Company and the Company
Subsidiaries have good and marketable title free and clear of all liens,
encumbrances, charges, defaults or equitable interests to all of the properties
and assets, real and personal, which, individually or in the aggregate, are
material to the business of the Company and its Subsidiaries taken as a whole,
and which are reflected on the Company Financial Statements as of September 30,
1999 or acquired after such date, except (i) liens for taxes not yet due and
payable, (ii) pledges to secure deposits and other liens incurred in the
ordinary course of banking business, (iii) such imperfections of title,
easements and encumbrances, if any, as are not material in character, amount or
extent and (iv) dispositions and encumbrances for adequate consideration in the
ordinary course of business. All leases pursuant to which the Company or any
Company Subsidiary, as lessee, leases real and personal property which,
individually or in the aggregate, are material to the business of the Company
and its Subsidiaries taken as a whole are valid and enforceable in accordance
with their respective terms except where the failure of such lease or leases to
be valid and enforceable would not, individually or in the aggregate, have a
Material Adverse Effect on the Company.
2.11. LOANS
Each loan reflected as an asset in the Company Financial Statements (i)
is evidenced by notes, agreements or other evidences of indebtedness which are
true, genuine and what they purport to be, (ii) to the extent secured, has been
secured by valid liens and security interests which have been perfected, and
(iii) is the legal, valid and binding obligation of the obligor named therein,
enforceable in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent conveyance and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles, in each case other
than loans as to which the failure to satisfy the foregoing standards would not
have a Material Adverse Effect on the Company.
2.12. TAX MATTERS
(a) Except as Previously Disclosed, the Company and each Company
Subsidiary have timely filed federal income tax returns for each year through
December 31, 1998 and have timely filed, or caused to be filed, all other
federal, state, local and foreign tax returns (including, without limitation,
estimated tax returns, returns required under Sections 1441-1446 and 6031-6060
of the Code and the regulations thereunder and any comparable state, foreign and
local laws, any other information returns, withholding tax returns, FICA and
FUTA returns and back up withholding returns required under Section 3406 of the
Code and any comparable state, foreign and local laws) required to be filed with
respect to the Company or any Company Subsidiary, except where the failure to
file timely such federal income and other tax returns would not, in the
aggregate, have a Material Adverse Effect on the Company. All taxes due in
respect of the periods covered by such tax returns have been paid or adequate
reserves have been established for the payment of such taxes and such reserves
are reflected on the Company Financial Statements, except where any such failure
to pay or establish adequate reserves would not, in the aggregate, have a
Material Adverse Effect on the Company and, as of the Closing Date, all taxes
due in respect of any subsequent periods (or portions thereof) ending on or
prior to the Closing Date will have been paid or adequate reserves will have
been established for the payment thereof, except where any such failure to pay
or establish adequate reserves would not, in the aggregate, have a Material
Adverse Effect on the Company. Except as Previously Disclosed, no material (i)
audit examination, (ii) deficiency, or (iii) refund litigation with respect to
such returns or periods has been proposed, asserted or assessed or is pending.
Neither the Company nor any Company Subsidiary will have any liability for any
such taxes in excess of the amounts so paid or reserves or accruals so
established except where such liability would not have a Material Adverse Effect
on The Company.
(b) All federal, state and local (and, if applicable, foreign) tax
returns filed by the Company and each Company Subsidiary are complete and
accurate in all material respects. Neither the Company nor any Company
Subsidiary is delinquent in the payment of any material tax, assessment or
governmental charge, and, except as Previously Disclosed, none of them has
requested any extension of time within which to file any tax returns in respect
of any fiscal year or portion thereof which have not since been filed. Except as
Previously Disclosed, no material deficiencies for any tax, assessment or
governmental charge have been proposed, asserted or assessed (tentatively or
otherwise) against the Company or any Company Subsidiary which have not been
settled and paid. Except as Previously Disclosed, there are currently no
agreements in effect with respect to the Company or any Company Subsidiary to
extend the period of limitations for the assessment or collection of any tax.
(c) Except as Previously Disclosed, neither the transactions
contemplated hereby nor the termination of the employment of any employees of
the Company or any Company Subsidiary prior to or following consummation of the
transactions contemplated hereby could result in the Company or any Company
Subsidiary making or being required to make any "excess parachute payment" as
that term is defined in Section 280G of the Code.
(d) Except as Previously Disclosed, neither the Company nor any Company
Subsidiary is a party to any agreement providing for the allocation or sharing
of, or indemnification for, taxes.
(e) Except as Previously Disclosed, neither the Company nor any Company
Subsidiary is required to include in income any adjustment in any taxable period
ending after the date hereof pursuant to Section 481(a) of the Code.
(f) Except as Previously Disclosed, neither the Company nor any Company
Subsidiary has entered into any agreement with any taxing authority that will
bind the Company or an affiliate thereof after the Closing Date.
(g) For purposes of this Section 2.12, references to the Company and
any Company Subsidiary shall include predecessors thereof.
2.13. EMPLOYEE BENEFIT PLANS
The Company has made available to Parent copies of all of the following
as to which the Company is a party or by which it is bound: contracts with
officers and employees, profit sharing, retirement, insurance and other employee
benefit or welfare plans or similar plans or arrangements; and published
employment policies. Except as Previously Disclosed, no corporation or other
entity is a member with the Company of a controlled group of corporations
defined in Section 4.1.4(b) of the Code, or is under common control with the
Company as defined in Section 4.1.4(c) of the Code. Except as Previously
Disclosed, no employee benefit plan maintained by the Company is a
"Multi-Employer Plan" as defined in Section 3(37)(A) of ERISA and, except as
Previously Disclosed, the Company does not maintain any plan that is subject to
the reporting and disclosure requirements of ERISA.
2.14. CERTAIN CONTRACTS
(a) Except as Previously Disclosed, neither the Company nor any Company
Subsidiary is a party to, or is bound by, (i) any material contract as defined
in Item 601(b)(10) of Regulation S-K of the SEC or any other material contract
or similar arrangement whether or not made in the ordinary course of business
(other than loans or loan commitments and funding transactions in the ordinary
course of business of any Company Subsidiary) or any agreement restricting the
nature or geographic scope of its business activities in any material respect,
(ii) any agreement, indenture or other instrument relating to the borrowing of
money by the Company or any Company Subsidiary or the guarantee by the Company
or any Company Subsidiary of any such obligation, other than instruments
relating to transactions entered into in the customary course, (iii) any
agreement, arrangement or commitment relating to the employment of a consultant
who was formerly a director or executive officer or the employment, election,
retention in office or severance of any present or former director or officer,
or (iv) any contract, agreement or understanding with a labor union, in each
case whether written or oral.
(b) Except as Previously Disclosed, neither the Company nor any Company
Subsidiary is in default under any material agreement, commitment, arrangement,
lease, insurance policy or other instrument whether entered into in the ordinary
course of business or otherwise and whether written or oral, and there has not
occurred any event that, with the lapse of time or giving of notice or both,
would constitute such a default, except for such defaults which would not,
individually or in the aggregate, have a Material Adverse Effect on the Company.
2.15. LEGAL PROCEEDINGS
Except as Previously Disclosed, there are no actions, suits or
proceedings instituted, pending or, to the knowledge of the Company or any
Company Subsidiary, threatened (or unasserted but considered probable of
assertion and which if asserted would have at least a reasonable probability of
an unfavorable outcome) against the Company or any Company Subsidiary or against
any asset, interest or right of the Company or any Company Subsidiary as to
which there is a reasonable probability of an unfavorable outcome and which, if
such an unfavorable outcome was rendered, would, individually or in the
aggregate, have a Material Adverse Effect on the Company. To the knowledge of
the Company or any Company Subsidiary, there are no actual or threatened
actions, suits or proceedings which present a claim to restrain or prohibit the
transactions contemplated herein or to impose any material liability in
connection therewith as to which there is a reasonable probability of an
unfavorable outcome and which, if such an unfavorable outcome was rendered,
would, individually or in the aggregate, have a Material Adverse Effect on the
Company. There are no actions, suits or proceedings instituted, pending or, to
the knowledge of the Company or any Company Subsidiary, threatened (or
unasserted but considered probable of assertion and which if asserted would be
reasonably expected to have an unfavorable outcome) against any present or
former director or officer of the Company or any Company Subsidiary, that might
give rise to a claim for indemnification and that (i) has a reasonable
probability of an unfavorable outcome and (ii) in the event of an unfavorable
outcome, would, individually or in the aggregate, have a Material Adverse Effect
on the Company.
2.16. COMPLIANCE WITH LAWS
Except as Previously Disclosed, the Company and each Company Subsidiary
is in compliance in all material respects with all statutes and regulations
applicable to the conduct of its business, and neither the Company nor any
Company Subsidiary has received notification from any agency or department of
federal, state or local government (i) asserting a material violation of any
such statute or regulation, (ii) threatening to revoke any license, franchise,
permit or government authorization or (iii) restricting or in any way limiting
its operations, except for such noncompliance, violations, revocations and
restrictions which would not, individually or in the aggregate, have a Material
Adverse Effect on the Company. Neither the Company nor any Company Subsidiary is
subject to any regulatory or supervisory cease and desist order, agreement,
directive, memorandum of understanding or commitment which could be reasonably
anticipated to have a Material Adverse Effect on the Company, and none of them
has received any communication requesting that they enter into any of the
foregoing.
2.17. LABOR MATTERS
With respect to their employees, neither the Company nor any Company
Subsidiary is a party to any labor agreement with any labor organization, group
or association and has not engaged in any unfair labor practice. Since January
1, 1999 and prior to the date hereof, the Company and Company Subsidiaries have
not experienced any attempt by organized labor or its representatives to make
the Company or any Company Subsidiary conform to demands of organized labor
relating to their employees or to enter into a binding agreement with organized
labor that would cover the employees of the Company or any Company Subsidiary.
There is no unfair labor practice charge or other complaint by any employee or
former employee of the Company or any Company Subsidiary against any of them
pending before any governmental agency arising out of the Company's or such
Company Subsidiary's activities, which charge or complaint (i) has a reasonable
probability of an unfavorable outcome and (ii) in the event of an unfavorable
outcome would, individually or in the aggregate, have a Material Adverse Effect
on the Company; there is no labor strike or labor disturbance pending or
threatened against any of them; and neither the Company nor any Company
Subsidiary has experienced a work stoppage or other labor difficulty since
January 1, 1999.
2.18. BROKERS AND FINDERS
Neither the Company nor any Company Subsidiary, nor any of their
respective officers, directors or employees, has employed any broker, finder or
financial advisor or incurred any liability for any fees or commissions in
connection with the transactions contemplated herein or the Plan of Merger.
2.19. INSURANCE
The Company and the Company Subsidiaries each currently maintains
insurance in amounts considered by the Company and any Company Subsidiary as
applicable, to be reasonably necessary for their operations. Neither the Company
nor any Company Subsidiary has received any notice of a material premium
increase or cancellation with respect to any of its insurance policies or bonds,
and within the last three years, neither the Company nor any Company Subsidiary
has been refused any insurance coverage sought or applied for, and the Company
has no reason to believe that existing insurance coverage cannot be renewed as
and when the same shall expire, upon terms and conditions as favorable as those
presently in effect, other than possible increases in premiums or unavailability
in coverage that have not resulted from any extraordinary loss experience of the
Company or any Company Subsidiary.
2.20. ENVIRONMENTAL LIABILITY
Except as Previously Disclosed, neither the Company nor any Company
Subsidiary has received any written notice of any legal, administrative,
arbitral or other proceeding, claim or action and, to the knowledge of the
Company and Company Subsidiaries, there is no governmental investigation of any
nature ongoing, in each case that could reasonably be expected to result in the
imposition, on the Company or any Company Subsidiary of any liability arising
under any local, state or federal environmental statute, regulation or ordinance
including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, which liability would have a
Material Adverse Effect on the Company; except as Previously Disclosed, there
are no facts or circumstances which could reasonably be expected to form the
basis for any such proceeding, claim, action or governmental investigation that
would impose any such liability; and neither the Company nor any Company
Subsidiary is subject to any agreement, order, judgment, decree or memorandum by
or with any court, governmental authority, regulatory agency or third party
imposing any such liability.
2.21. INTELLECTUAL PROPERTY
Except as Previously Disclosed, the Company or a Company Subsidiary
owns the entire right, title and interest in and to, or has valid licenses or
otherwise has the required legal rights with respect to, all of the Intellectual
Property necessary in all material respects to conduct the business and
operations of the Company and the Company Subsidiaries as presently conducted,
except where the failure to do so would not, individually or in the aggregate,
have a Material Adverse Effect on the Company. None of such Intellectual
Property is subject to any outstanding order, decree, judgment, stipulation,
settlement, lien, charge, encumbrance or attachment, which order, decree,
judgment, stipulation, settlement, lien, charge, encumbrance or attachment would
have a Material Adverse Effect on the Company. Except as Previously Disclosed,
upon consummation of the transactions contemplated by this Reorganization
Agreement the Company and Company Subsidiaries will be entitled to continue to
use all such Intellectual Property without the payment of any fees, licenses or
other payments (other than ongoing payments required under license agreements
for software used by the Company or the Company Subsidiaries in Previously
Disclosed amounts consistent with past practice).
2.22. INSIDER INTERESTS
All outstanding loans and other contractual arrangements (including
deposit relationships) between the Company or any Company Subsidiary and any
officer, director or employee of the Company or any Company Subsidiary conform
to the applicable rules and regulations and requirements of all applicable
regulatory agencies which were in effect when such loans and other contractual
arrangements were entered into.
2.23. YEAR 2000
The Company's disclosures contained in the Company SEC Reports related
to Year 2000 computer issues are true, complete and accurate in all material
respects.
2.24. TAX TREATMENT
As of the date of this Reorganization Agreement, the Company knows of
no reason relating to it or any of Company Subsidiaries which would reasonably
cause it to believe that the Merger will not qualify as tax free reorganization
under Section 368(a) of the Code.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF PARENT AND ACQUISITION
Parent and Acquisition hereby jointly and severally represent and
warrant to the Company as follows:
Section 3.1. Organization.
(a) Parent is duly organized, validly existing and in good standing
under the laws of Delaware and has all requisite power and authority to own,
lease and operate its properties and to carry on its business as now being
conducted. Acquisition is duly organized, validly existing and in good standing
under the laws of New York and has all requisite power and authority to own,
lease and operate its properties and to carry on its business as now being
conducted. Parent has heretofore made available to the Company accurate and
complete copies of the Certificates of Incorporation and bylaws as currently in
full force and effect, of Parent and Acquisition. (b) Each of Parent and
Acquisition is duly qualified or licensed and in good standing to do business in
each jurisdiction in which the property owned, leased or operated by it or the
nature of the business conducted by it makes such qualification or licensing
necessary, except in such jurisdictions where the failure to be so duly
qualified or licensed and in good standing would not have a Material Adverse
Effect on Parent. When used in connection with Parent or Acquisition the term
"Material Adverse Effect on Parent" means any circumstance, change in, or effect
on Parent and its subsidiaries, taken as a whole, that is, or is reasonably
likely in the future to be, materially adverse to the operations, financial
condition, assets, earnings, or results of operations, or the business
(financial or otherwise) of Parent and its subsidiaries, taken as a whole,
provided that none of the following shall be deemed, either alone or in
combination, to constitute a Material Adverse Effect on the Parent.
Section 3.2. Capitalization of Parent and its Subsidiaries.
(a) The authorized capital stock of Parent consists of 7,500,000 shares
of Parent Common Stock, 700,000 shares of Class B common stock and 300,000
shares of Series Preferred Stock, of which, as of September 30, 1999, 2,271,879
shares of Parent Common Stock, 305,000 shares of Class B common stock and no
shares of preferred stock were issued and outstanding.
(b) The shares of Acquisition Common Stock to be issued pursuant to the
Merger, when issued, will be duly authorized, validly issued, fully paid and
nonassessable.
Section 3.3. Authority Relative to this Agreement. Each of Parent and
Acquisition has all necessary corporate power and authority to execute and
deliver this Agreement, to perform its obligations under this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby have
been duly and validly authorized by the boards of directors of Parent and
Acquisition and by Parent as the sole stockholder of Acquisition, and except for
approval by the shareholders of Parent, no other corporate proceedings on the
part of Parent or Acquisition are necessary to authorize this Agreement or to
consummate the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by each of Parent and Acquisition and
constitutes, assuming the due authorization, execution and delivery hereof by
the Company, a valid, legal and binding agreement of each of Parent and
Acquisition enforceable against each of Parent and Acquisition in accordance
with its terms, subject to any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws now or hereafter in effect relating
to creditors' rights generally or to general principles of equity.
Section 3.4. SEC Reports. Parent has filed all required forms, reports and
documents ("Parent SEC Reports") with the SEC since January 1, 1997, each of
which complied at the time of filing in all material respects with all
applicable requirements of the Securities Act and the Exchange Act, each law as
in effect on the dates such forms, reports and documents were filed. None of
such Parent SEC Reports, including any financial statements or schedules
included or incorporated by reference therein, contained when filed any untrue
statement of a material fact or omitted to state a material fact required to be
stated or incorporated by reference therein or necessary in order to make the
statements therein in light of the circumstances under which they were made not
misleading, except to the extent superseded by a Parent SEC Report filed
subsequently and prior to the date hereof. The audited consolidated financial
statements of Parent included in the Parent SEC Reports fairly present in
conformity in all material respects with generally accepted accounting
principles applied on a consistent basis (except as may be indicated in the
notes thereto) the consolidated financial position of Parent and its
consolidated subsidiaries as of the dates thereof and their consolidated results
of operations and changes in financial position for the periods then ended.
Section 3.5. Consents and Approvals; No Violations. Except for filings, permits,
authorizations, consents and approvals as may be required under and other
applicable requirements of the Federal Reserves Act, the Securities Act, the
Exchange Act, state securities or blue sky laws, the HSR Act, and any filings
under similar merger notification laws or regulations of Governmental Entities
and the filing and recordation of the Certificate of Merger as required by the
NYBCL, no material filing with or notice to, and no material permit,
authorization, consent or approval of any Governmental Entity is necessary for
the execution and delivery by Parent or Acquisition of this Agreement or the
consummation by Parent or Acquisition of the transactions contemplated hereby.
Neither the execution, delivery and performance of this Agreement by Parent or
Acquisition or the consummation by Parent or Acquisition of the transactions
contemplated hereby will (i) conflict with or result in any breach of any
provision of the respective Certificates of Incorporation or bylaws (or similar
governing documents) of Parent or Acquisition, (ii) result in a violation or
breach of or constitute (with or without due notice or lapse of time or both) a
default (or give rise to any right of termination, amendment, cancellation or
acceleration or Lien) under any of the terms, conditions or provisions of any
material note, bond, mortgage, indenture, lease, license, contract, agreement or
other instrument or obligation to which Parent or Acquisition or any of Parent's
other subsidiaries is a party or by which any of them or any of their respective
properties or assets are bound or (iii) violate any material order, writ,
injunction, decree, law, statute, rule or regulation applicable to Parent or
Acquisition or any of Parent's other subsidiaries or any of their respective
properties or assets.
Section 3.6. Litigation. There is no suit, claim, action, proceeding or
investigation pending or, to the knowledge of Parent threatened, against Parent
or any of its subsidiaries or any of their respective properties or assets
before any Governmental Entity that could reasonably be expected to prevent or
delay the consummation of the transactions contemplated by this Agreement beyond
the Final Date. Neither Parent nor any of its subsidiaries is subject to any
outstanding order, writ, injunction or decree that could reasonably be expected
to prevent or delay the consummation of the transactions contemplated hereby.
Section 3.7. Tax Treatment. Neither Parent, Acquisition nor, to the knowledge of
Parent, any of its affiliates has taken, proposes to take, or has agreed to take
any action that would prevent the Merger from constituting are organization
qualifying under the provisions of Section 368(a) of the Code.
Section 3.8. Brokers. No broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of Parent or Acquisition.
Section 3.9. No Prior Activities. Except for obligations incurred in connection
with its incorporation or organization or the negotiation and consummation of
this Agreement and the transactions contemplated hereby, Acquisition has neither
incurred any obligation or liability nor engaged in any business or activity of
any type or kind or entered into any agreement or arrangement with any person.
Section 3.10. No Undisclosed Liabilities; Absence of Changes. Except as and to
the extent publicly disclosed by Parent in the Parent SEC Reports, neither
parent nor any of its subsidiaries has any material liabilities or obligations
of any nature, whether or not accrued, contingent or otherwise, that would be
required by generally accepted accounting principles to be reflected on a
consolidated balance sheet of Parent (including the notes thereto). There have
been no events, changes or effects with respect to Parent or its subsidiaries
that have had a Material Adverse Effect on Parent that have not been publicly
disclosed by Parent in the Parent SEC Reports.
Section 3.11. Compliance with Applicable Law. Except as publicly disclosed by
Parent in the Parent SEC Reports, to the knowledge of Parent, Parent and its
subsidiaries hold all material permits, licenses, variances, exemptions, orders
and approvals of all Governmental Entities necessary for the lawful conduct of
their respective businesses (the "Parent Permits"). Except as publicly disclosed
by Parent in the Parent SEC Reports, Parent and its subsidiaries are in material
compliance with the terms of Parent Permits. Except as publicly disclosed by
Parent in the Parent SEC Reports, to the knowledge of Parent, the businesses of
Parent and its subsidiaries have been and are being conducted in material
compliance with all material Applicable Laws. Except as publicly disclosed by
Parent in the Parent SEC Reports, no investigation or review by any Governmental
Entity with respect to Parent or any of its subsidiaries is pending or, to the
knowledge of Parent, threatened, nor, to the knowledge of Parent, has any
Governmental Entity indicated an intention to conduct the same.
Section 3.12. Representations Complete. None of the representations or
warranties made by Parent in this Agreement or any statement made in any
Schedule or certificate furnished by Parent pursuant to this Agreement, or
furnished in or in connection with documents mailed or delivered to the
stockholders of the Company in connection with soliciting their proxy or consent
to this Agreement and the Merger, contains or will contain at the Effective
Time, any untrue statement of a material fact, or omits or will omit at the
Effective Time to state any material fact necessary in order to make the
statements contained herein or therein, in the light of the circumstances under
which made, not misleading.
ARTICLE 4
COVENANTS
Section 4.1. Conduct of Business of the Company. Except as contemplated by this
Agreement, during the period from the date hereof to the Effective Time, the
Company covenants and agrees to conduct its operations in the ordinary course of
business consistent with past practice and, to the extent consistent therewith,
with no less diligence and effort than would be applied in the absence of this
Agreement, use commercially reasonable efforts to preserve intact its current
business organizations, keep available the service of its current officers and
employees and preserve its relationships with customers, suppliers,
distributors, lessors, creditors, employees, contractors and others having
business dealings with it with the intention that its goodwill and ongoing
businesses shall be unimpaired at the Effective Time. Without limiting the
generality of the foregoing, except as otherwise expressly provided in this
Agreement, prior to the Effective Time, neither the Company nor any of its
subsidiaries will, without the prior written consent of Parent:
(a) amend its Certificate of Incorporation or bylaws (or other similar
governing instrument);
(b) authorize for issuance, issue, sell, deliver or agree or commit to
issue, sell or deliver (whether through the issuance or granting of options,
warrants, commitments, subscriptions, rights to purchase or otherwise) any stock
of any class or any other debt or equity securities or equity equivalents;
(c) split, combine or reclassify any shares of its capital stock, 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, make any
other actual, constructive or deemed distribution in respect of its capital
stock or otherwise make any payments to stockholders in their capacity as such,
or redeem or otherwise acquire any of its securities or any securities of any of
its subsidiaries;
(d) adopt a plan of complete or partial liquidation, dissolution, merger,
consolidation, restructuring, recapitalization or other reorganization of the
Company or any of its subsidiaries (other than the Merger);
(e) alter through merger, liquidation, reorganization, restructuring or any
other fashion the corporate structure of any subsidiary;
(f) except as may be required by Applicable Law, enter into, adopt or amend
or terminate any bonus, special remuneration, compensation, severance, stock
option, stock purchase agreement, retirement, health, life, or disability
insurance, severance or other employee benefit plan agreement, trust, fund or
other arrangement for the benefit or welfare of any director, officer, employee
or consultant in any manner or increase in any manner the compensation or fringe
benefits of any director, officer or employee or pay any benefit not required by
any plan and arrangement as in effect as of the date hereof (including the
granting of stock appreciation rights or performance units);
(g) grant any severance or termination pay to any director, officer,
employee or consultant, except payments made pursuant to written agreements
outstanding on the date hereof or as required by applicable federal, state or
local law or regulations;
(h) except as may be required as a result of a change in law or in
generally accepted accounting principles, materially change any of the
accounting principles, practices or methods used by it;
(i) make any material tax election or settle or compromise any material
income tax liability or permit any material insurance policy naming it as a
beneficiary or loss-payable to expire, or to be canceled or terminated, unless a
comparable insurance policy reasonably acceptable to Parent is obtained and in
effect;
(j) fail to file any Tax Returns when due (or, alternatively, fail to file
for available extensions) or fail to cause such Tax Returns when filed to be
complete and accurate in all material respects;
(k) fail to pay any Taxes or other material debts when due;
(l) settle or compromise any pending or threatened suit, action or claim
not covered by insurance that (i) relates to the transactions contemplated
hereby or (ii) the settlement or compromise of which would involves more than
Fifty Thousand Dollars ($50,000) or that would otherwise be material to the
Company; or
(m) take or agree in writing or otherwise to take any of the actions
described in Sections 4.1(a) through 4.1(l) (and it shall use all reasonable
efforts not to take any action that would make any of the representations or
warranties of the Company contained in this Agreement (including the exhibits
hereto) untrue or incorrect).
Section 4.2. No Solicitation or Negotiation. Until the earlier of the Effective
Time and the date of termination of this Agreement pursuant to the provisions of
Section 6.1 hereof, the Company covenants and agrees that it shall not (nor will
the Company permit any of the Company's officers, directors, stockholders,
agents, representatives or affiliates to) directly or indirectly, take any of
the following actions with any party other than Parent and its designees: (a)
solicit, initiate, entertain, or encourage any proposals or offers from, or
conduct discussions with or engage in negotiations with, any person relating to
any possible acquisition of the Company (whether by way of merger, purchase of
capital stock, purchase of assets or otherwise), any material portion of its
capital stock or assets or any equity interest in the Company; (b) provide
information with respect to the Company to any person, other than Parent,
relating to, or otherwise cooperate with, facilitate or encourage any effort or
attempt by any such person with regard to, any possible acquisition of the
Company (whether by way of merger, purchase of capital stock, purchase of assets
or otherwise), any material portion of its capital stock or assets or any equity
interest in the Company; (c) enter into an agreement with any person, other than
Parent, providing for the acquisition of the Company (whether by way of merger,
purchase of capital stock, purchase of assets or otherwise), any material
portion of its capital stock or assets or any equity interest in the Company; or
(d) make or authorize any statement, recommendation or solicitation in support
of any possible acquisition of the Company (whether by way of merger, purchase
of capital stock, purchase of assets or otherwise), any material position of its
capital stock or assets or any equity interest in the Company by any person,
other than by Parent.
Section 4.3. Meeting of Stockholders. Parent shall take all actions necessary in
accordance with Delaware General Corporation Law ("DGCL"), the Nasdaq
Marketplace Rules and its Certificate of Incorporation and bylaws to duly call,
give notice of, convene and hold a meeting of its stockholders as promptly as
practicable to consider and vote upon the adoption and approval of this
Agreement and the transactions contemplated hereby (the"Meeting"). The
stockholder vote required for the adoption and approval of the transactions
contemplated by this Agreement shall be the vote required by the DGCL and the
Company's Certificate of Incorporation and bylaws. Parent will, through its
Board of Directors, recommend to its stockholders approval of such matters.
Section 4.4. Sale of Shares; Stockholder Matters.
(a) Sale of Shares. The parties hereto acknowledge and agree that the
Merger Consideration issuable to the Company's stockholders shall constitute
"restricted securities" within the meaning of the Securities Act. The
certificates for shares of Parent Common Stock to be issued in the Merger shall
bear appropriate legends to identify such privately placed shares as being
restricted under the Securities Act and to comply with applicable state
securities laws.
(b) Additional Assurances. At the request of Parent, the Company shall
execute and deliver to Parent such instruments and do and perform such acts and
things as may be necessary or desirable for complying with all applicable
securities laws and state corporate law.
Section 4.5. Access to Information. Each party shall afford the others and their
accountants, counsel and other representatives, reasonable access during normal
business hours during the period prior to the Effective Time to (a) all of its
properties, books, contracts, commitments and records, and (b) all other
information concerning its business, properties and personnel (subject to
restrictions imposed by applicable law) as the others may reasonably request,
subject, in the case of Parent, to reasonable limits on access to its technical
and other nonpublic information. No information or knowledge obtained in any
investigation pursuant to this Section 4.5 shall affect or be deemed to modify
any representation or warranty contained herein or the conditions of the parties
to consummate the Merger.
Section 4.6. Confidentiality. It is understood that the business of the Parent
and the Company, and all matters related thereto, are of a confidential nature.
Prior to the date hereof, there may have been revealed, and on or after the date
hereof there may be revealed, to Parent and its affiliates or representatives,
on the one hand, and to the Company and its affiliates and representatives, on
the other, "Confidential Information" (as hereinafter defined) concerning the
business of the Parent or the business of the Company. In consideration for and
as an inducement to the parties to execute, deliver and perform this Agreement,
each of the parties hereto hereby agrees that, following the termination of this
Agreement or any other failure of the Merger to be consummated, neither party
shall divulge or appropriate for their own use, or for the use of any third
party, any Confidential Information of the other party. As used herein, the term
"Confidential Information" means the following oral or written information
relating to each party's business: know-how, technology, inventions, designs,
methodologies, trade secrets, patents, secret processes and formulae,
information relating to the development, research, testing, manufacturing,
marketing, sales, distribution and uses of products, sources of supplies,
budgets and strategic plans, the identity and special needs of customers, plants
and other properties, and any other information which may give the party who
received such Confidential Information an opportunity to obtain an advantage
over its competitors who do not know or use such information; provided, however,
that the term "Confidential Information" shall not include (i) any such
information that, prior to its use or disclosure by any party hereto, can be
shown to have been in the public domain or generally known or available to
customers, suppliers or competitors of the business of Parent or the Company, as
the case may be, through no breach of the provisions of this Section 4.6 or
other non-disclosure covenants that were executed for the benefit of Parent or
the Company, as the case may be; (ii) any such information that, prior to its
use or disclosure by any party hereto was rightfully in the receiving party's
possession, without violation of the provisions of this Section 4.6 or other
non-disclosure covenants that were executed for the benefit of Parent or the
Company, as the case may be; or (iii) any such information that, prior to its
use or disclosure by Parent or the Company, as the case may be, was developed by
such party without violation of the provisions of this Section 4.6 or other
non-disclosure covenants that were executed for the benefit of Parent or the
Company, as the case may be. The parties hereto hereby acknowledge and agree
that the breach by any of the parties hereto of the restrictive covenant
contained in this Section 4.6 would cause irreparable injury to the other party
and that the remedy at law for any such breach would be inadequate. As a result,
each of the parties hereto hereby covenant, agree and consent that, in addition
to any other available remedy, temporary and permanent injunctive relief may be
granted in any proceeding which may be brought by any party to this Agreement to
enforce the restrictive covenant set forth above without necessity of proof that
any other remedy at law is inadequate.
Section 4.7. Expenses. Whether or not the Merger is consummated, all fees and
expenses incurred in connection with the Merger including, without limitation,
all legal, accounting, financial advisory, consulting and all other fees and
expenses of third parties ("Third Party Expenses") incurred by a party in
connection with the negotiation and effectuation of the terms and conditions of
this Agreement and the transactions contemplated hereby shall be the obligation
of the respective party incurring such fees and expenses.
Section 4.8. Consent. The Company shall use its best efforts to obtain the
consents, waivers and approvals under any of the Contracts as may be required in
connection with the Merger (all of such consents, waivers and approvals are set
forth in Company Schedules) so as to preserve all rights of and benefits to
Acquiror thereunder.
Section 4.9. Reasonable Efforts. Subject to the terms and conditions provided in
this Agreement, each of the parties hereto shall use its reasonable efforts to
ensure that its representations and warranties remain true and correct in all
material respects, and to take promptly, or cause to be taken, all actions, and
to do promptly, or cause to be done, all things necessary, proper or advisable
under applicable laws and regulations to consummate and make effective the
transactions contemplated hereby, to obtain all necessary waivers, consents and
approvals, to effect all necessary registrations and filings, and to remove any
injunctions or other impediments or delays, legal or otherwise, in order to
consummate and make effective the transactions contemplated by this Agreement
for the purpose of securing to the parties hereto the benefits contemplated by
this Agreement, and to cause the conditions to the opposite party's obligations
to be satisfied.
Section 4.10. Notification of Certain Matters.
(a) The Company shall give prompt written notice to Parent of (i) the
occurrence or non-occurrence of any event, the occurrence or non-occurrence of
which is likely to cause any representation or warranty of the Company contained
in this Agreement to be untrue or inaccurate at or prior to the Effective Time
and (ii) any failure of the Company to comply with or satisfy any covenant,
condition or agreement to be complied with or satisfied by it hereunder. The
delivery of any such notice pursuant to this Section 4.10(a) shall be deemed
disclosure for purposes of this Agreement as if fully disclosed by the Company
herein.
(b) Parent hereby covenants and agrees that it shall give prompt
written notice to the Company of (i) the occurrence or non-occurrence of any
event, the occurrence or non-occurrence of which is likely to cause any
representation or warranty of Parent contained in this Agreement to be untrue or
inaccurate at or prior to the Effective Time and (ii) any failure of Parent to
comply or satisfy any covenant, condition or agreement to be complied with or
satisfied by it hereunder. The delivery of any such notice pursuant to this
Section 4.10(b) shall be deemed disclosure for purposes of this Agreement as
fully disclosed by Parent hereunder.
Section 4.11 Additional Documents and Further Assurances. Each party hereto, at
the request of the other party hereto, shall execute and deliver such other
instruments and do and perform such other acts and things as may be necessary or
desirable for effecting completely the consummation of this Agreement and the
transactions contemplated hereby.
Section 4.12. Certain Filings; Reasonable Efforts.
Subject to the terms and conditions herein provided, 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 reasonably necessary, proper
or advisable under Applicable Law to consummate and make effective the
transactions contemplated by this Agreement, including using all reasonable
efforts to do the following, (i) cooperate in the preparation and filing of the
Proxy Statement and any amendments thereto, any filings that may be required
under the HSR Act and any filings under similar merger notification laws or
regulations of foreign Governmental Entities; (ii) obtain consents of all third
parties and Governmental Entities necessary, proper, advisable or reasonably
requested by Parent or the Company, for the consummation of the transactions
contemplated by this Agreement; (iii) contest any legal proceeding relating to
the Merger; and (iv) execute any additional instruments necessary to consummate
the transactions contemplated hereby. Subject to the terms and conditions of
this Agreement, Parent and Acquisition agree to use all reasonable efforts to
cause the Effective Time to occur as soon as practicable after the stockholder
vote with respect to the Merger. If at any time after the Effective Time any
further action is necessary to carry out the purposes of this Agreement the
proper officers and directors of each party hereto shall take all such necessary
action.
Section 4.13. Public Announcements. Neither Parent, Acquisition nor the Company
shall issue any press release or otherwise make any public statements with
respect to the transactions contemplated by this Agreement, including the
Merger, or any Third Party Acquisition, without the prior consent of Parent and
Acquisition (in the case of the Company) or the Company (in the case of Parent
or Acquisition, which consent may be unreasonably withheld), except as may be
required by Applicable Law, or by the rules and regulations of, or pursuant to
any agreement with, the Nasdaq Small Cap Market.
ARTICLE 5
CONDITIONS TO CONSUMMATION OF THE MERGER
Section 5.1. Conditions to Each Party's Obligations to Effect the Merger. The
respective obligations of each party hereto to effect the Merger are subject to
the satisfaction at or prior to the Effective Time of the following conditions:
(a) this Agreement shall have been approved and adopted by the
requisite vote of the stockholders of Parent;
(b) no statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or enforced by any
United States federal or state court or United States federal or state
Governmental Entity that prohibits, restrains, enjoins or restricts the
consummation of the Merger;
(c) any waiting period applicable to the Merger under the HSR Act
shall have terminated or expired;
(d) any governmental or regulatory notices, approvals or other
requirements necessary to consummate the transactions contemplated hereby and to
operate the Business after the Effective Time in all material respects as it was
operated prior thereto shall have been given, obtained or complied with, as
applicable; and
(e) Parent shall have received all state securities laws or "blue sky"
permits and authorizations necessary to issue shares of Parent Common Stock in
exchange for Shares in the Merger.
Section 5.2. Conditions to the Obligations of the Company. The obligation of the
Company to effect the Merger is subject to the satisfaction at or prior to the
Effective Time of the following conditions:
(a) the representations and warranties of Parent and Acquisition
contained in this Agreement shall be true and correct (except to the extent that
the aggregate of all breaches thereof would not have a Material Adverse Effect
on Parent) at and as of the Effective Time with the same effect as if made at
and as of the Effective Time (except to the extent such representations
specifically relate to an earlier date, in which case such representations shall
be true and correct as of such earlier date, and in any event, subject to the
foregoing Material Adverse Effect qualification) and, at the Closing, Parent and
Acquisition shall have delivered to the Company a certificate to that effect,
executed by executive officers of Parent and Acquisition;
(b) each of the covenants and obligations of Parent and Acquisition to
be performed at or before the Effective Time pursuant to the terms of this
Agreement shall have been duly performed in all material respects at or before
the Effective Time and, at the Closing, Parent and Acquisition shall have
delivered to the Company a certificate to that effect, executed by executive
officers of Parent and Acquisition; and
(c) the Company shall have received the opinion of tax counsel to the
Company or tax counsel to Parent to the effect that (i) the Merger will be
treated for Federal income tax purposes as a reorganization within the meaning
of Section 368(a) of the Code and (ii) each of Parent, Acquisition and the
Company will be a party to the reorganization within the meaning of Section
368(b) of the Code, which opinion may rely on such representations as such
counsel reasonably deems appropriate, and such opinion shall not have been
withdrawn or modified in any material respect.
Section 5.3. Conditions to the Obligations of Parent and Acquisition. The
respective obligations of Parent and Acquisition to effect the Merger are
subject to the satisfaction at or prior to the Effective Time of the following
conditions:
(a) the representations and warranties of the Company contained in this
Agreement shall be true and correct (except to the extent that the aggregate of
all breaches thereof would not have a Material Adverse Effect on the Company) at
and as of the Effective Time with the same effect as if made at and as of the
Effective Time (except to the extent such representations specifically relate to
an earlier date, in which case such representations shall be true and correct as
of such earlier date, and in any event, subject to the foregoing Material
Adverse Effect qualification) and, at the Closing, the Company shall have
delivered to Parent and Acquisition a certificate to that effect, executed by
executive officers of the Company;
(b) each of the covenants and obligations of the Company to be
performed at or before the Effective Time pursuant to the terms of this
Agreement shall have been duly performed in all material respects at or before
the Effective Time and, at the Closing, the Company shall have delivered to
Parent and Acquisition a certificate to that effect, executed by two (2)
executive officers of the Company;
(c) there shall have been no events, changes or effects, individually
or in the aggregate, with respect to the Company or its subsidiaries having, or
that would reasonably be expected to have, a Material Adverse Effect on the
Company;
(d) Parent shall have received the opinion of tax counsel to Parent or
tax counsel to the Company to the effect that (i) the Merger will be treated for
Federal income tax purposes as a reorganization within the meaning of Section
368(a) of the Code and (ii) each of Parent, Acquisition and the Company will be
a party to the reorganization within the meaning of Section 368(b) of the Code,
which opinion may rely on such representations as such counsel reasonably deems
appropriate, and such opinion shall not have been withdrawn or modified in any
material respect; and
(e) Parent shall have received an opinion from ▇▇▇▇▇▇▇/▇▇▇▇▇▇▇ Valuation,
Inc. to the effect that the Exchange Ratio is fair from a financial point
of view to the stockholders of Parent.
ARTICLE 6
TERMINATION; AMENDMENT; WAIVER
Section 6.1. Termination. This Agreement may be terminated and the Merger may be
abandoned at any time prior to the Effective Time whether before or after
approval and adoption of this Agreement by Parent's stockholders:
(a) by mutual written consent of Parent, Acquisition and the Company;
(b) by Parent and Acquisition or the Company if (i) any court of
competent jurisdiction in the United States or other United States federal or
state Governmental Entity shall have issued a final order, decree or ruling, or
taken any other final action, restraining, enjoining or otherwise prohibiting
the Merger and such order, decree, ruling or other action is or shall have
become nonappealable or (ii) the Merger has not been consummated by June 30,
2000 (the "Final Date"); provided that no party may terminate this Agreement
pursuant to this clause (ii) if such party's failure to fulfill any of its
obligations under this Agreement shall have been a principal reason that the
Effective Time shall not have occurred on or before said date;
(c) by the Company if (i) there shall have been a breach of any
representations or warranties on the part of Parent or Acquisition set forth in
this Agreement or if any representations or warranties of Parent or Acquisition
shall have become untrue, such that the conditions set forth in Section 4.2(a)
would be incapable of being satisfied by the Final Date, provided that the
Company has not breached any of its obligations hereunder in any material
respect; or (ii) there shall have been a breach by Parent or Acquisition of any
of their respective covenants or agreements hereunder having a Material Adverse
Effect on Parent or materially adversely affecting (or materially delaying) the
ability of Parent, Acquisition or the Company to consummate the Merger, and
Parent or Acquisition, as the case may be, has not cured such breach within
fifteen (15) business days after notice by the Company thereof, provided that
the Company has not breached any of its obligations hereunder in any material
respect; or
(d) by Parent and Acquisition if (i) there shall have been a breach of
any representations or warranties on the part of the Company set forth in this
Agreement or if any representations or warranties of the Company shall have
become untrue, such that the conditions set forth in Section 4.3(a) would be
incapable of being satisfied by the Final Date, provided that neither Parent nor
Acquisition has breached any of their respective obligations hereunder in any
material respect; or (ii) there shall have been a breach by the Company of one
or more of its covenants or agreements hereunder having a Material Adverse
Effect on the Company or materially adversely affecting (or materially delaying)
the ability of Parent, Acquisition or the Company to consummate the Merger, and
the Company has not cured such breach within fifteen (15) business days after
notice by Parent or Acquisition thereof, provided that neither Parent nor
Acquisition has breached any of their respective obligations hereunder in any
material respect; or
(e) by Parent or Acquisition if there shall be any action taken, or any
statute, rule, regulation or order enacted, promulgated or issued or deemed
applicable to the Merger, by any governmental entity, which would: (i) prohibit
Acquisition's or the Company's ownership or operation of all or any portion of
the business of the Company or (ii) compel Acquisition or the Company to dispose
of or hold separate all or a portion of the business or assets of the Company or
Acquisition as a result of the Merger
Section 6.2. Effect of Termination. In the event of the termination and
abandonment of this Agreement pursuant to Section 6.1, this Agreement shall
forthwith become void and have no effect without any liability on the part of
any party hereto or its affiliates, directors, officers or stockholders.
Section 6.3. Amendment. This Agreement may be amended by action taken by the
Company, Parent and Acquisition at any time before or after approval of the
Merger by the stockholders of Parent but after any such approval no amendment
shall be made that requires the approval of such stockholders under Applicable
Law without such approval. This Agreement may be amended only by an instrument
in writing signed on behalf of the parties hereto.
Section 6.4. Extension; Waiver. At any time prior to the Effective Time, each
party hereto may (i) extend the time for the performance of any of the
obligations or other acts of the other party, (ii) waive any inaccuracies in the
representations and warranties of the other party contained herein or in any
document certificate or writing delivered pursuant hereto or (iii) waive
compliance by the other party with any of the agreements or conditions contained
herein. Any agreement on the part of any party hereto to any such extension or
waiver shall be valid only if set forth in an instrument, in writing, signed on
behalf of such party. The failure of any party hereto to assert any of its
rights hereunder shall not constitute a waiver of such rights.
ARTICLE 7
MISCELLANEOUS
Section 7.1. Nonsurvival of Representations and Warranties. The representations
and warranties made herein shall not survive beyond the Effective Time or a
termination of this Agreement. This Section 7.1 shall not limit any covenant or
agreement of the parties hereto that by its terms requires performance after the
Effective Time.
Section 7.2. Entire Agreement; Assignment. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all other prior and contemporaneous agreements and understandings
both written and oral between the parties with respect to the subject matter
hereof and (b) shall not be assigned by operation of law or otherwise; provided,
however, that Parent may assign any or all of its rights and obligations under
this Agreement to any wholly owned subsidiary of Parent, but no such assignment
shall relieve Parent of its obligations hereunder if such assignee does not
perform such obligations.
Section 7.3. Validity. If any provision of this Agreement or the application
thereof to any person or circumstance is held invalid or unenforceable, the
remainder of this Agreement and the application of such provision to other
persons or circumstances shall not be affected thereby and to such end the
provisions of this Agreement are agreed to be severable.
Section 7.4. Notices. All notices and other communications pursuant to this
Agreement shall be in writing and shall be deemed given if delivered personally,
telecopied, sent by nationally-recognized overnight courier or mailed by
registered or certified mail (return receipt requested), postage prepaid, to the
parties at the addresses set forth below or to such other address as the party
to whom notice is to be given may have furnished to the other parties hereto in
writing in accordance herewith. Any such notice or communication shall be deemed
to have been delivered and received (A) in the case of personal delivery, on the
date of such delivery, (B) in the case of telecopier, on the date sent if
confirmation of receipt is received and such notice is also promptly mailed by
registered or certified mail (return receipt requested), (C) in the case of a
nationally-recognized overnight courier in circumstances under which such
courier guarantees next business day delivery, on the next business day after
the date when sent and (D) in the case of mailing, on the third business day
following that on which the piece of mail containing such communication is
posted:
if to Parent or Acquisition: Intervest Bancshares Corporation
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Suite 1015)
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Chairman
if to the Company to: Intervest Corporation of ▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Suite 1015)
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Chairman
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
Section 7.5. Governing Law and Venue; Waiver of Jury Trial.
THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL
BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAW OF THE
STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
Section 7.6. Descriptive Headings. The descriptive headings herein are inserted
for convenience of reference only and are not intended to be part of or to
affect the meaning or interpretation of this Agreement
Section 7.7. Parties in Interest. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto and its successors and permitted
assigns and, except as expressly provided herein, nothing in this Agreement is
intended to or shall confer upon any other person any rights, benefits or
remedies of any nature whatsoever under or by reason of this Agreement nor shall
any such person be entitled to assert any claim hereunder. In no event shall
this Agreement constitute a third party beneficiary contract.
Section 7.8. Certain Definitions. For the purposes of this Agreement the term:
(a) "affiliate" means a person that, directly or indirectly, through
one or more intermediaries controls, is controlled by or is under common control
with the first-mentioned person;
(b) "Applicable Law" means, with respect to any person, any domestic or
foreign, federal, state or local statute, law, ordinance, rule, regulation,
order, writ, injunction, judgment, decree or other requirement of any
Governmental Entity existing as of the date hereof or as of the Effective Time
applicable to such Person or any of its respective properties, assets, officers,
directors, employees, consultants or agents.
(c) "capital stock" means common stock, preferred stock, partnership
interests, limited liability company interests or other ownership interests
entitling the holder thereof to vote with respect to matters involving the
issuer thereof;
(d) "knowledge" or "known" means, with respect to any fact,
circumstance, event or other matter in question, the knowledge of such fact,
circumstance, event or other matter of any executive officer of the Company or
Parent, as the case may be, and, in addition, with respect to the Company, the
persons listed on Section 7.9(f) of the Company Disclosure Schedule. Any such
individual will be deemed to have knowledge of a particular fact, circumstance,
event or other matter if (1) such individual has actual knowledge of such fact,
circumstance, event or other matter, or (2) such fact, circumstance, event or
other matter is reflected in one or more documents (including e-mails sent to
such individual) in, or that have been in, such individual's files.
(e) "include" or "including" means "include, without limitation" or
"including, without limitation," as the case may be, and the language following
"include" or "including" shall not be deemed to set forth an exhaustive list.
(f) "person" means an individual, corporation, partnership, limited
liability company, association, trust, unincorporated organization or other
legal entity including any Governmental Entity;
(g) "Previously Disclosed" means disclosed in writing by either party
in any document filed with the SEC prior to the date hereof or in a writing
delivered to the other party prior to the execution of this Agreement. Any
information disclosed by one party to the other for any purpose hereunder shall
be deemed to be disclosed for all purposes hereunder. The inclusion of any
matter in information previously disclosed shall not be deemed an admission or
otherwise imply that any such matter is material for purposes of this Agreement.
(h) "Securities Act" means the Securities Act of 1933, as amended;
(i) "subsidiary" or "subsidiaries" of the Company, Parent, the
Surviving Corporation or any other person means any corporation, partnership,
limited liability company, association, trust, unincorporated association or
other legal entity of which the Company, Parent, the Surviving Corporation or
any such other person, as the case may be (either alone or through or together
with any other subsidiary), owns, directly or indirectly, 50% or more of the
capital stock the holders of which are generally entitled to vote for the
election of the board of directors or other governing body of such corporation
or other legal entity.
Section 7.9. Personal Liability. This Agreement shall not create or be deemed to
create or permit any personal liability or obligation on the part of any direct
or indirect stockholder of the Company or Parent or Acquisition or any officer,
director, employee, agent, representative or investor of any party hereto.
Section 7.10. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
shall constitute one and the same agreement.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
duly executed on its behalf as of the day and year first above written.
INTERVEST BANCSHARES CORPORATION
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
ICNY ACQUISITION CORPORATION
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
INTERVEST CORPORATION OF NEW YORK
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President