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AGREEMENT AND PLAN OF MERGER
BY AND BETWEEN
ORITANI FINANCIAL CORP.
AND
GREATER COMMUNITY BANCORP
NOVEMBER 13, 2007
<PAGE>
TABLE OF CONTENTS
ARTICLE I CERTAIN
DEFINITIONS..................................................2
1.1. Certain
Definitions..........................................2
ARTICLE II THE
MERGER..........................................................9
2.1.
Merger.......................................................9
2.2. Effective
Time..............................................10
2.3. Certificate of Incorporation and
Bylaws.....................10
2.4. Directors and Officers of Surviving
Corporation.............10
2.5. Additional Directors of OFC and Oritani Savings Bank;
Advisory
Board..............................................10
2.6. Effects of the
Merger.......................................11
2.7. Tax
Consequences............................................11
2.8. Possible Alternative
Structures.............................11
2.9. Bank
Merger.................................................11
2.10. Additional
Actions..........................................12
ARTICLE III CONVERSION OF
SHARES..............................................12
3.1. Conversion of GCB Common Stock; Merger
Consideration........12
3.2. Election
Procedures.........................................13
3.3. Procedures for Exchange of GCB Common
Stock.................16
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF
GCB..............................19
4.1.
Standard....................................................19
4.2.
Organization................................................19
4.3.
Capitalization..............................................20
4.4. Authority; No
Violation.....................................21
4.5.
Consents....................................................22
4.6. Financial
Statements........................................22
4.7.
Taxes.......................................................24
4.8. No Material Adverse
Effect..................................24
4.9. Material Contracts; Leases;
Defaults........................24
4.10. Ownership of Property; Insurance
Coverage...................26
4.11. Legal
Proceedings...........................................27
4.12. Compliance With Applicable
Law..............................27
4.13. Employee Benefit
Plans......................................29
4.14. Brokers, Finders and Financial
Advisors.....................31
4.15. Environmental
Matters.......................................32
4.16. Loan Portfolio and Investment
Securities....................33
4.17. Securities
Documents........................................34
4.18. Related Party
Transactions..................................35
4.19.
Deposits....................................................35
4.20. Required
Vote...............................................35
4.21. Registration
Obligations....................................35
4.22. Risk Management
Instruments.................................35
4.23. Fairness
Opinion............................................36
4.24. Trust
Accounts..............................................36
4.25. Intellectual
Property.......................................36
4.26. Labor
Matters...............................................36
4.27. GCB Information
Supplied....................................37
ARTICLE V REPRESENTATIONS AND WARRANTIES OF
OFC...............................37
5.1.
Standard....................................................37
5.2.
Organization................................................37
5.3.
Capitalization..............................................38
5.4. Authority; No
Violation.....................................39
5.5.
Consents....................................................39
5.6. Financial
Statements........................................40
5.7.
Taxes.......................................................41
5.8. No Material Adverse
Effect..................................42
5.9. Ownership of Property; Insurance
Coverage...................42
5.10. Legal
Proceedings...........................................43
5.11. Compliance With Applicable
Law..............................43
5.12. Employee Benefit
Plans......................................44
5.13. Environmental
Matters.......................................45
5.14. Loan
Portfolio..............................................46
5.15. Securities
Documents........................................47
5.16. Brokers, Finders and Financial
Advisors.....................47
5.17. OFC Common
Stock............................................47
5.18. Material
Contracts..........................................47
5.19.
Deposits....................................................47
5.20. Related Party
Transactions..................................48
5.21. Required
Vote...............................................48
5.22. Adequate
Cash...............................................48
5.23. Ownership of OFC Common
Stock...............................48
5.24. OFC Information
Supplied....................................48
ARTICLE VI COVENANTS OF
GCB...................................................49
6.1. Conduct of
Business.........................................49
6.2. Current
Information.........................................53
6.3. Access to Properties and
Records............................54
6.4. Financial and Other
Statements..............................55
6.5. Maintenance of
Insurance....................................55
6.6. Disclosure
Supplements......................................55
6.7. Consents and Approvals of Third
Parties.....................56
6.8. All Reasonable
Efforts......................................56
6.9. Failure to Fulfill
Conditions...............................56
6.10. No
Solicitation.............................................56
6.11. Reserves and Merger-Related
Costs...........................59
6.12. Board of Directors and Committee
Meetings...................59
6.13. GCB
DRIP....................................................59
ARTICLE VII COVENANTS OF
OFC..................................................60
7.1. Conduct of
Business.........................................60
7.2. Current
Information.........................................60
7.3. Financial and Other
Statements..............................60
7.4. Disclosure
Supplements......................................61
7.5. Consents and Approvals of Third
Parties.....................61
7.6. All Reasonable
Efforts......................................61
7.7. Failure to Fulfill
Conditions...............................61
7.8. Employee
Benefits...........................................61
7.9. Directors and Officers Indemnification and
Insurance........63
7.10. Stock
Listing...............................................65
7.11. Stock and Cash
Reserve......................................65
7.12. Section 16(b)
Exemption.....................................65
ARTICLE VIII REGULATORY AND OTHER
MATTERS.....................................65
8.1. GCB and OFC Shareholder
Meetings............................65
8.2. Joint Proxy
Statement-Prospectus............................66
8.3. Regulatory
Approvals........................................67
8.4.
Affiliates..................................................68
ARTICLE IX CLOSING
CONDITIONS.................................................68
9.1. Conditions to Each Party's Obligations under this
Agreement...................................................68
9.2. Conditions to the Obligations of OFC under this
Agreement...................................................69
9.3. Conditions to the Obligations of GCB under this
Agreement...................................................70
ARTICLE X THE
CLOSING.........................................................70
10.1. Time and
Place..............................................70
10.2. Deliveries at the Pre-Closing and the
Closing...............71
ARTICLE XI TERMINATION, AMENDMENT AND
WAIVER..................................71
11.1.
Termination.................................................71
11.2. Effect of
Termination.......................................73
11.3. Amendment, Extension and
Waiver.............................74
ARTICLE XII
MISCELLANEOUS.....................................................75
12.1.
Confidentiality.............................................75
12.2. Public
Announcements........................................75
12.3.
Survival....................................................75
12.4.
Notices.....................................................76
12.5. Parties in
Interest.........................................76
12.6. Complete
Agreement..........................................77
12.7.
Counterparts................................................77
12.8.
Severability................................................77
12.9. Governing
Law...............................................77
12.10.
Interpretation..............................................77
12.11. Specific
Performance........................................78
12.12. Disclosure
Schedule.........................................78
Exhibit A Form of GCB Voting Agreement
Exhibit B.........MHC Voting Agreement
Exhibit C.........Form of Bank Merger Agreement
Exhibit D.........Affiliates Agreement
<PAGE>
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this "Agreement") is dated as
of
November 13, 2007, by and between Oritani Financial Corp., a
federal corporation
("OFC"), and Greater Community Bancorp, a New Jersey corporation
("GCB").
WHEREAS, the Board of Directors of each of OFC and GCB (i) has
determined
that this Agreement and the business combination and related
transactions
contemplated hereby are in the best interests of their
respective companies and
shareholders and (ii) has determined that this Agreement and the
transactions
contemplated hereby are consistent with and in furtherance of
their respective
business strategies, and (iii) has adopted a resolution
approving this Agreement
and declaring its advisability; and
WHEREAS, in accordance with the terms of this Agreement, GCB
will merge
with and into OFC (the "Merger"), and immediately thereafter
Greater Community
Bank ("GC Bank"), a New Jersey chartered commercial bank and
wholly owned
subsidiary of GCB, will be merged with and into Oritani Savings
Bank ("Oritani
Savings Bank"), a New Jersey chartered stock savings bank and
wholly owned
subsidiary of OFC; and
WHEREAS, as a condition to the willingness of OFC to enter into
this
Agreement, the directors of GCB listed on GCB DISCLOSURE
SCHEDULE A-1 have
entered into a Voting Agreement, substantially in the form of
Exhibit A hereto,
dated as of the date hereof, with OFC (the "GCB Voting
Agreements"), pursuant to
which each such director has agreed, among other things, to vote
all shares of
common stock of GCB owned by such person in favor of the
approval of this
Agreement and the transactions contemplated hereby, upon the
terms and subject
to the conditions set forth in the GCB Voting Agreements;
and
WHEREAS, as a condition to the willingness of GCB to enter into
this
Agreement, Oritani Financial Corp. has entered into a Voting
Agreement,
substantially in the form of Exhibit B hereto, dated as of the
date hereof, with
GCB (the "MHC Voting Agreements"), pursuant to Oritani Financial
Corp., MHC has
agreed to vote all shares of common stock of OFC owned by it in
favor of the
approval of this Agreement and the transactions contemplated
hereby; and
WHEREAS, the parties intend the Merger to qualify as a
reorganization
within the meaning of Section 368(a) of the Internal Revenue
Code of 1986, as
amended (the "Code"), and that this Agreement be and is hereby
adopted as a
"plan of reorganization" within the meaning of Sections 354 and
361 of the Code;
and
WHEREAS, the parties desire to make certain representations,
warranties and
agreements in connection with the business transactions
described in this
Agreement and to prescribe certain conditions thereto.
NOW, THEREFORE, in consideration of the mutual covenants,
representations,
warranties and agreements herein contained, and of other good
and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the
parties hereto agree as follows:
<PAGE>
ARTICLE I
CERTAIN DEFINITIONS
1.1. Certain Definitions.
As used in this Agreement, the following terms have the
following meanings
(unless the context otherwise requires, references to Articles
and Sections
refer to Articles and Sections of this Agreement). Other terms
used herein are
defined in the preamble and elsewhere in this Agreement.
"Advisory Board" shall have the meaning set forth in Section
2.5.
"Affiliate" shall mean, with respect to any Person, any Person
who
directly, or indirectly, through one or more intermediaries,
controls, or is
controlled by, or is under common control with, such Person and,
without
limiting the generality of the foregoing, includes any executive
officer or
director of such Person and any Affiliate of such executive
officer or director.
"Agreement" shall mean this agreement, and any amendment
hereto.
"Applications" shall mean the applications for Regulatory
Approvals that
are required by the transactions contemplated hereby.
"Acquisition Proposals" shall have the meaning set forth in
Section
6.10(a).
"Acquisition Transaction" shall have the meaning set forth in
Section
6.10(a).
"Bank Merger" shall mean the merger of GC Bank with and into
Oritani
Savings Bank, with Oritani Savings Bank as the surviving
institution, which
merger shall occur immediately following the Merger.
"Bank Regulator" shall mean any Federal or state banking
regulator,
including but not limited to the OTS, the FRB, the FDIC and the
Department,
which regulates Oritani Savings Bank or GC Bank, or any of their
respective
holding companies or subsidiaries, as the case may be.
"BHCA" shall mean the Bank Holding Company Act of 1956, as
amended.
"Call Reports" shall mean the quarterly reports of income and
conditions
required to be filed with the FDIC.
"Cash Consideration" shall have the meaning set forth in Section
3.1.3.
"Cash Election" shall have the meaning set forth in Section
3.1.3.
"Cash Election Shares" shall have the meaning set forth in
Section 3.1.3.
"Cash Option Payment" shall have the meaning set forth in
Section 3.3.9.
"Certificate" shall mean certificates evidencing shares of GCB
Common
Stock.
<PAGE>
"Closing" shall have the meaning set forth in Section 2.2.
"Closing Date" shall have the meaning set forth in Section
2.2.
"COBRA" shall mean the Consolidated Omnibus Budget
Reconciliation Act of
1985, as amended.
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
"Confidentiality Agreements" shall mean the confidentiality
agreements
referred to in Section 12.1.
"Continuing Employees" shall have the meaning set forth in
Section 7.8.2.
"CRA" shall have the meaning set forth in Section 4.12.3.
"Defined Benefit Plan" shall have the meaning set forth in
Section 4.13.3.
"Department" shall mean the New Jersey Department of Banking and
Insurance
and where and as appropriate shall include the New Jersey
Commissioner of
Banking and Insurance.
"Director SERP" shall have the meaning set forth in Section
7.8.6.
"Directors Plans" shall have the meaning set forth in Section
7.8.6.
"Effective Time" shall mean the date and time specified pursuant
to Section
2.2 hereof as the effective time of the Merger.
"Election Deadline" shall have the meaning set forth in Section
3.2.3.
"Election Form" shall have the meaning set forth in Section
3.2.2.
"Election Form Record Date" shall have the meaning set forth in
Section
3.2.2.
"Environmental Laws" shall mean any applicable Federal, state or
local law,
statute, ordinance, rule, regulation, code, license, permit,
authorization,
approval, consent, order, judgment, decree, injunction or
agreement with any
governmental entity relating to (1) the protection, preservation
or restoration
of the environment (including, without limitation, air, water
vapor, surface
water, groundwater, drinking water supply, surface soil,
subsurface soil, plant
and animal life or any other natural resource), and/or (2) the
use, storage,
recycling, treatment, generation, transportation, processing,
handling,
labeling, production, release or disposal of Materials of
Environmental Concern.
The term Environmental Law includes without limitation (a) the
Comprehensive
Environmental Response, Compensation and Liability Act, as
amended, 42 U.S.C.
ss.9601, et seq; the Resource Conservation and Recovery Act, as
amended, 42
U.S.C. ss.6901, et seq; the Clean Air Act, as amended, 42 U.S.C.
ss.7401, et
seq; the Federal Water Pollution Control Act, as amended, 33
U.S.C. ss.1251, et
seq; the Toxic Substances Control Act, as amended, 15 U.S.C.
ss.2601, et seq;
the Emergency Planning and Community Right to Know Act, 42
U.S.C. ss.11001, et
<PAGE>
seq; the Safe Drinking Water Act, 42 U.S.C. ss.300f, et seq; and
all comparable
state and local laws, and (b) any common law (including without
limitation
common law that may impose strict liability) that may impose
liability or
obligations for injuries or damages due to the presence of or
exposure to any
Materials of Environmental Concern.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as
amended.
"ERISA Affiliate" shall have the meaning set forth in Section
4.13.3.
"ERISA Affiliate Plan" shall have the meaning set forth in
Section 4.13.3.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Exchange Agent" shall mean American Stock Transfer & Trust
Company, or
such other bank or trust company or other agent designated by
OFC, and
reasonably acceptable to GCB, which shall act as agent for OFC
in connection
with the exchange procedures for converting Certificates into
the Merger
Consideration.
"Exchange Fund" shall have the meaning set forth in Section
3.3.1.
"Exchange Ratio" shall mean a quotient (carried to the fourth
decimal
place) (a) the numerator of which is $21.40 and (b) the
denominator of which is
the OFC Market Value, provided however, that in no event shall
the Exchange
Ratio be greater than 1.4588 or less than 1.1935, subject to
adjustment as
provided in Section 3.1.5.
"Favorable Letter" shall have the meaning set forth in Section
4.13.2.
"FDIA" shall mean the Federal Deposit Insurance Act, as
amended.
"FDIC" shall mean the Federal Deposit Insurance Corporation or
any
successor thereto.
"FHLB" shall mean the Federal Home Loan Bank of New York.
"FRB" shall mean the Board of Governors of the Federal Reserve
System and,
where appropriate, the Federal Reserve Bank of Boston.
"GAAP" shall mean accounting principles generally accepted in
the United
States of America, consistently applied with prior practice.
"GCB" shall mean Greater Community Bancorp, a New Jersey
corporation, with
its principal offices located at 55 Union Boulevard, Totowa, New
Jersey, 07512.
"GCB Common Stock" shall mean the common stock, par value $0.50
per share,
of GCB.
"GCB Compensation and Benefit Plans" shall have the meaning set
forth in
Section 4.13.1.
<PAGE>
"GCB DISCLOSURE SCHEDULE" shall mean a written disclosure
schedule
delivered contemporaneously with this Agreement by GCB to OFC in
accordance with
Article IV of this Agreement.
"GCB DRIP" shall mean the Dividend Reinvestment Plan and Stock
Purchase
Plan of GCB.
"GCB Financial Statements" shall mean (i) the audited
consolidated balance
sheets (including related notes and schedules, if any) of GCB
and subsidiaries
as of December 31, 2006 and 2005 and the consolidated statements
of income,
comprehensive income, changes in shareholders' equity and cash
flows (including
related notes and schedules, if any) of GCB and subsidiaries for
each of the
three years ended December 31, 2006, 2005 and 2004, as set forth
in GCB's annual
report for the year ended December 31, 2006, and (ii) the
unaudited interim
consolidated financial statements of GCB and subsidiaries as of
the end of each
calendar quarter following December 31, 2006 and for the periods
then ended, as
filed by GCB in its Securities Documents.
"GCB Insiders" shall have the meaning set forth in Section
7.12.
"GCB Option" shall mean an option to purchase shares of GCB
Common Stock
granted pursuant to the GCB Stock Benefit Plans and as set forth
in GCB
DISCLOSURE SCHEDULE 4.3.1.
"GCB Recommendation" shall have the meaning set forth in Section
8.1.
"GCB Regulatory Agreement" shall have the meaning set forth in
Section
4.12.3.
"GCB Regulatory Reports" shall mean the Call Reports of GC Bank
and
accompanying schedules, for each calendar quarter beginning with
the quarter
ended March 31, 2007, through the Closing Date, and all reports
filed with the
FRB by GCB from March 31, 2007 through the Closing Date.
"GCB Section 16 Information" shall have the meaning set forth in
Section
7.12.
"GCB Shareholders Meeting" shall have the meaning set forth in
Section
8.1.1.
"GCB Stock Benefit Plans" shall mean the GCB 2001 Employee Stock
Option
Plan and the GCB 2001 Stock Option Plan for Nonemployee
Directors, and the 2006
Long-Term Stock Compensation Plan, and any amendments
thereto.
"GCB Subsequent Determination" shall have the meaning set forth
in Section
6.10(e).
"GCB Subsidiary" shall mean any corporation, of which more than
50% of the
capital stock is owned, either directly or indirectly, by GCB or
GC Bank, except
any corporation the stock of which is held in the ordinary
course of the lending
activities of GC Bank.
"GC Bank" shall mean Greater Community Bank, a New Jersey
chartered
commercial bank, with its principal offices located at 55 Union
Boulevard,
Totowa, New Jersey, 07512, which is a wholly owned subsidiary of
GCB.
"Governmental Entity" shall mean any Federal or state court,
administrative
agency or commission or other governmental authority or
instrumentality.
"HIPAA" shall have the meaning set forth in Section 4.13.2.
"HOLA" shall mean the Home Owners' Loan Act, as amended.
"Indemnified Parties" shall have the meaning set forth in
Section 7.9.1.
"IRS" shall mean the United States Internal Revenue Service.
"Joint Proxy Statement-Prospectus" shall have the meaning set
forth in
Section 8.2.1.
"Knowledge" as used with respect to a Person (including
references to such
Person being aware of a particular matter) shall mean those
facts that are known
or should have been known by the executive officers and
directors of such
Person, and includes any facts, matters or circumstances set
forth in any
written notice from any Bank Regulator or any other material
written notice
received by that Person.
"Material Adverse Effect" shall mean, with respect to OFC or
GCB,
respectively, any effect that (i) is material and adverse to the
financial
condition, results of operations or business of OFC and the OFC
Subsidiaries
taken as a whole, or GCB and the GCB Subsidiaries taken as a
whole,
respectively, or (ii) does or would materially impair the
ability of either GCB,
on the one hand, or OFC, on the other hand, to perform its
obligations under
this Agreement or otherwise materially threaten or materially
impede the
consummation of the transactions contemplated by this Agreement;
provided that
"Material Adverse Effect" shall not be deemed to include the
impact of (a)
changes in laws and regulations affecting banks or thrift
institutions or their
holding companies generally, or interpretations thereof by
courts or
governmental agencies, (b) changes in GAAP or regulatory
accounting principles
generally applicable to financial institutions and their holding
companies, (c)
actions and omissions of a party hereto (or any of its
Subsidiaries) taken with
the prior written consent of the other party, (d) the impact of
the announcement
of this Agreement and the transactions contemplated hereby, and
compliance with
this Agreement on the business, financial condition or results
of operations of
the parties and their respective Subsidiaries, including the
expenses (inclusive
of the change in control, severance and related payments to be
made to employees
at or subsequent to the Closing Date in accordance with the GCB
or OFC
DISCLOSURE SCHEDULES) incurred by the parties hereto in
consummating the
transactions contemplated by this Agreement (and any loss of
personnel
subsequent to the date of this Agreement), (e) changes in
national or
international political or social conditions including the
engagement by the
United States in hostilities, whether or not pursuant to the
declaration of a
national emergency or war, or the occurrence of any military or
terrorist attack
upon or within the United States, or any of its territories,
possessions or
diplomatic or consular offices or upon any military
installation, equipment or
personnel of the United States, unless it uniquely and
disproportionately
affects either or both of the parties or any of their
Subsidiaries (f) any
change in the value of the securities or loan portfolio, or any
change in the
<PAGE>
value of the deposits or borrowings, of OFC or GCB, or any of
their
Subsidiaries, respectively, resulting from a change in interest
rates generally,
(g) changes relating to securities markets in general (including
any disruption
thereof and any decline in the price of any security or market
index), or (g)
any acts of GCB, and any charge or reserve taken by GCB at the
request of OFC
pursuant to Section 6.11.
"Materials of Environmental Concern" shall mean pollutants,
contaminants,
wastes, toxic substances, petroleum and petroleum products, and
any other
materials regulated under Environmental Laws.
"Maximum Amount" shall have the meaning set forth in Section
7.9.3.
"Merger" shall mean the merger of GCB with and into OFC (or a
subsidiary
thereof) pursuant to the terms hereof.
"Merger Consideration" shall mean the cash or OFC Common Stock,
or
combination thereof, in an aggregate per share amount to be paid
by OFC for each
share of GCB Common Stock, as set forth in Section 3.1.
"Merger Registration Statement" shall mean the registration
statement,
together with all amendments, filed with the SEC under the
Securities Act for
the purpose of registering shares of OFC Common Stock to be
offered to holders
of GCB Common Stock in connection with the Merger.
"Nasdaq" shall mean the Nasdaq Global Market.
"NJBCA" shall mean the New Jersey Business Corporation Act, as
amended.
"Non-Election Shares" shall have the meaning set forth in
Section 3.2.1.
"Non-Exchangeable Shares" shall have the meaning set forth in
Section
3.1.2.
"Notice of Superior Proposal" shall have the meaning set forth
in Section
6.10(e).
"OFC" shall mean Oritani Financial Corp., a federal corporation,
with its
principal executive offices located at 370 Pascack Road,
Township of Washington,
New Jersey, 07676.
"OFC Common Stock" shall mean the common stock, par value $.01
per share,
of OFC.
"OFC DISCLOSURE SCHEDULE" shall mean a written disclosure
schedule
delivered contemporaneously with this Agreement by OFC to GCB in
accordance with
Article V of this Agreement.
"OFC Financial Statements" shall mean the (i) the audited
consolidated
balance sheets (including related notes and schedules) of OFC
and subsidiaries
as of June 30, 2007 and 2006 and the consolidated statements of
income,
comprehensive income, stockholders' equity and cash flows
(including related
notes and schedules, if any) of OFC and subsidiaries for each of
the three years
ended June 30, 2007, 2006 and 2005, as set forth in OFC's annual
report for the
year ended June 30, 2006, and (ii) the unaudited interim
consolidated financial
<PAGE>
statements of OFC and subsidiaries as of the end of each
calendar quarter
following June 30, 2007, and for the periods then ended, as
filed by OFC in its
Securities Documents.
"OFC Market Value" shall mean, as of any date, the average of
the closing
sales price of a share of OFC Common Stock, as reported on
Nasdaq, for the
twenty (20) consecutive trading days ending on the second
trading day preceding
the date as of which the OFC Market Value is determined.
"OFC Regulatory Agreement" shall have the meaning set forth in
Section
5.11.3.
"OFC Regulatory Reports" shall mean the Call Reports of Oritani
Savings
Bank and accompanying schedules, as filed with the FDIC, for
each calendar
quarter beginning with the quarter ended March 31, 2007, through
the Closing
Date, and all Reports filed with the OTS by OFC from March 31,
2007, through the
Closing Date.
"OFC Shareholders Meeting" shall have the meaning set forth in
Section
8.1.2.
"OFC Subsidiary" shall mean any corporation, of which more than
50% of the
capital stock is owned, either directly or indirectly, by OFC or
Oritani Savings
Bank, except any corporation the stock of which is held in the
ordinary course
of the lending activities of Oritani Savings Bank.
"Oritani Savings Bank" shall mean Oritani Savings Bank, a
federally
chartered stock savings association, with its principal offices
located at 370
Pascack Road, Township of Washington, New Jersey, 07676,which is
a wholly owned
subsidiary of OFC.
"OTS" shall mean the Office of Thrift Supervision or any
successor thereto.
"OTS Regulations" shall mean Title 12, Code of Federal
Regulations, Chapter
V.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or
any
successor thereto.
"Pension Plan" shall have the meaning set forth in Section
4.13.2.
"Person" shall mean any individual, corporation, partnership,
joint
venture, association, trust or "group" (as that term is defined
under the
Exchange Act).
"Regulatory Approvals" shall mean the approval of any Bank
Regulator and
any other Governmental Entity that is necessary in connection
with the
consummation of the Merger, the Bank Merger and the related
transactions
contemplated by this Agreement.
"Rights" shall mean warrants, options, rights, convertible
securities,
stock appreciation rights and other arrangements or commitments
which obligate
an entity to issue or dispose of any of its capital stock or
other ownership
interests or which provide for compensation based on the equity
appreciation of
its capital stock.
"SEC" shall mean the Securities and Exchange Commission or any
successor
thereto.
<PAGE>
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Securities Documents" shall mean all reports, offering
circulars, proxy
statements, registration statements and all similar documents
filed, or required
to be filed, pursuant to the Securities Laws.
"Securities Laws" shall mean the Securities Act; the Exchange
Act; the
Investment Company Act of 1940, as amended; the Investment
Advisers Act of 1940,
as amended; the Trust Indenture Act of 1939, as amended, and the
rules and
regulations of the SEC promulgated thereunder.
"Shortfall Number" shall have the meaning set forth in Section
3.2.5.
"Stock Consideration" shall have the meaning set forth in
Section 3.1.3.
"Stock Conversion Number" shall have the meaning set forth in
Section
3.2.1.
"Stock Election" shall have the meaning set forth in Section
3.1.3.
"Stock Election Number" shall have the meaning set forth in
Section 3.2.4.
"Stock Election Shares" shall have the meaning set forth in
Section 3.1.3.
"Subsidiaries" shall mean, with respect to GCB, the GCB
Subsidiaries, and
with respect to OFC, the OFC Subsidiaries.
"Superior Proposal" shall have the meaning set forth in Section
6.10(e).
"Surviving Corporation" shall have the meaning set forth in
Section 2.1
hereof.
"Termination Date" shall mean July 31, 2008.
"Treasury Regulations" shall have the meaning set forth in
Section 7.8.6.
"Treasury Stock" shall have the meaning set forth in Section
3.1.2.
"Trust" shall have the meaning set forth in Section 4.3.1.
ARTICLE II
THE MERGER
2.1. Merger.
Subject to the terms and conditions of this Agreement, at the
Effective
Time: (a) GCB shall merge with and into OFC, with OFC as the
resulting or
surviving corporation (the "Surviving Corporation"); and (b) the
separate
existence of GCB shall cease and all of the rights, privileges,
powers,
franchises, properties, assets, liabilities and obligations of
GCB shall be
<PAGE>
vested in and assumed by OFC. As part of the Merger, each share
of GCB Common
Stock (other than Non-Exchangeable Shares) will be converted
into the right to
receive the Merger Consideration pursuant to the terms of
Article III hereof.
Immediately after the Merger, GC Bank shall merge with and into
Oritani Savings
Bank, with Oritani Savings Bank as the resulting
institution.
2.2. Effective Time.
The Closing shall occur no later than the close of business on
the fifth
business day following the latest to occur of (i) the receipt of
all Regulatory
Approvals, (ii) GCB shareholder approval of the Merger, (iii)
OFC shareholder
approval of the Merger, or (iv) the passing of any applicable
waiting periods
required under law, or (iv) the satisfaction or waiver of all of
the conditions
set forth in Article IX of this Agreement, or at such other date
or time upon
which OFC and GCB mutually agree in writing (the "Closing"). The
Merger shall be
effected by the filing of the Articles of Combination with the
OTS in accordance
with OTS Regulations, and a certificate of merger with the New
Jersey Office of
the Secretary of State in accordance with the NJBCA on the day
of the Closing
(the "Closing Date"), in accordance with the applicable law. The
"Effective
Time" means the date and time upon which the Articles of
Combination are filed
with the OTS and the certificate of merger is filed with the New
Jersey Office
of the Secretary of State, or as otherwise stated in the
Articles of Combination
and the certificate of merger, in accordance with OTS
Regulations and the NJBCA.
2.3. Certificate of Incorporation and Bylaws.
The Certificate of Incorporation and Bylaws of OFC as in effect
immediately
prior to the Effective Time shall be the Certificate of
Incorporation and Bylaws
of the Surviving Corporation, until thereafter amended as
provided therein and
by applicable law.
2.4. Directors and Officers of Surviving Corporation.
Except as provided in Section 2.5, the directors of OFC
immediately prior
to 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. The
officers of OFC
immediately prior to the Effective Time shall be the initial
officers of
Surviving Corporation, in each case until their respective
successors are duly
elected or appointed and qualified.
2.5. Additional Directors of OFC and Oritani Savings Bank;
Advisory Board.
Prior to the Effective Time, OFC shall take action necessary to
increase
the number of persons constituting the Board of Directors of OFC
and Oritani
Savings Bank by two persons, and immediately after the Effective
Time, OFC shall
take all actions necessary to elect Alfred R. Urbano and Charles
J. Volpe to the
OFC and the Oritani Savings Bank Boards of Directors for a term
of not less than
one year. In addition, effective immediately after the Effective
Time, each
person who serves on the Board of Directors of GCB both on the
date of this
Agreement and as of the Effective Time (except for the two
persons who join the
OFC and Oritani Savings Bank Board of Directors in accordance
with the previous
sentences) shall be appointed to the Oritani Savings Bank
Advisory Board (the
"Advisory Board"). The Advisory Board shall be continued for a
period of at
<PAGE>
least one year following the Effective Time. OFC shall appoint a
former director
of GCB as the Chairman of the Advisory Board. The Advisory Board
shall meet
quarterly, and each advisory board member shall receive a fee of
$2,500 for each
quarterly meeting attended, and shall be entitled to indemnity
rights with
respect to their service on the Advisory Board to the fullest
extent permitted
by law.
2.6. Effects of the Merger.
At and after the Effective Time, the Merger shall have the
effects as set
forth in the HOLA, OTS Regulations and the NJBCA.
2.7. Tax Consequences.
It is intended that the Merger shall constitute a reorganization
within the
meaning of Section 368(a) of the Code, and that this Agreement
shall constitute
a "plan of reorganization" as that term is used in Sections 354
and 361 of the
Code. From and after the date of this Agreement and until the
Closing, each
party hereto shall use its commercially reasonable best efforts
to cause the
Merger to qualify, and will not knowingly take any action, cause
any action to
be taken, fail to take any action or cause any action to fail to
be taken which
action or failure to act could prevent the Merger from
qualifying as a
reorganization under Section 368(a) of the Code. Following the
Closing, neither
OFC, GCB nor any of their affiliates shall knowingly take any
action, cause any
action to be taken, fail to take any action or cause any action
to fail to be
taken, which action or failure to act could cause the Merger to
fail to qualify
as a reorganization under Section 368(a) of the Code. OFC and
GCB each hereby
agrees to deliver certificates substantially in compliance with
IRS published
advance ruling guidelines, with customary exceptions and
modifications thereto,
to enable counsel to deliver the legal opinion contemplated by
Section 9.1.6,
which certificates shall be effective as of the date of such
opinion.
2.8. Possible Alternative Structures.
Notwithstanding anything to the contrary contained in this
Agreement, prior
to the Effective Time OFC shall be entitled to revise the
structure of the
Merger or the Bank Merger, including without limitation, by
merging GCB into a
wholly owned subsidiary of OFC, provided that (i) any such
subsidiary shall
become a party to, and shall agree to be bound by, the terms of
this Agreement
(ii) there are no adverse Federal or state income tax
consequences to GCB
shareholders as a result of the modification; (iii) the
consideration to be paid
to the holders of GCB Common Stock under this Agreement is not
thereby changed
in kind, value or reduced in amount; and (iv) such modification
will not delay
materially or jeopardize the receipt of Regulatory Approvals or
other consents
and approvals relating to the consummation of the Merger and the
Bank Merger or
otherwise delay the Closing or cause any condition to Closing
set forth in
Article IX not to be capable of being fulfilled in a timely
manner. The parties
hereto agree to appropriately amend this Agreement and any
related documents in
order to reflect any such revised structure, all of which shall
be mutually
acceptable to the parties.
2.9. Bank Merger
OFC and GCB shall use their reasonable best efforts to cause the
merger of
GC Bank with and into Oritani Savings Bank, with Oritani Savings
Bank as the
<PAGE>
surviving institution, to occur as soon as practicable after the
Effective Time.
In addition, following the execution and delivery of this
Agreement, OFC will
cause Oritani Savings Bank, and GCB will cause GC Bank, to
execute and deliver
the Plan of Bank Merger substantially in the form attached to
this Agreement as
Exhibit C.
2.10. Additional Actions
If, at any time after the Effective Time, OFC shall reasonably
consider or
be advised that any further deeds, assignments or assurances in
law or any other
acts are necessary or desirable to (i) vest, perfect or confirm,
of record or
otherwise, in OFC its right, title or interest in, to or under
any of the
rights, properties or assets of GCB or GC Bank, or (ii)
otherwise carry out the
purposes of this Agreement, GCB and its officers and directors
shall be deemed
to have granted to OFC an irrevocable power of attorney to
execute and deliver,
in such official corporate capacities, all such deeds,
assignments or assurances
in law or any other acts as are necessary or desirable to (a)
vest, perfect or
confirm, of record or otherwise, in OFC its right, title or
interest in, to or
under any of the rights, properties or assets of GCB or (b)
otherwise carry out
the purposes of this Agreement, and the officers and directors
of the OFC are
authorized in the name of GCB or otherwise to take any and all
such action.
ARTICLE III
CONVERSION OF SHARES
3.1. Conversion of GCB Common Stock; Merger Consideration.
At the Effective Time, by virtue of the Merger and without any
action on
the part of OFC, GCB or the holders of any of the shares of GCB
Common Stock,
the Merger shall be effected in accordance with the following
terms:
3.1.1. Each share of OFC Common Stock that is issued and
outstanding
immediately prior to the Effective Time shall remain issued and
outstanding
following the Effective Time and shall be unchanged by the
Merger.
3.1.2. All shares of GCB Common Stock held in the treasury of
GCB
("Treasury Stock") and each share of GCB Common Stock owned by
OFC or any OFC
Subsidiary immediately prior to the Effective Time (other than
shares held in a
fiduciary capacity or in connection with debts previously
contracted)
(collectively, the "Non-Exchangeable Shares") shall, at the
Effective Time,
cease to exist, and the certificates for such shares shall be
canceled as
promptly as practicable thereafter, and no payment or
distribution shall be made
in consideration therefor.
3.1.3. Subject to the provisions of this Article III, each share
of GCB
Common Stock issued and outstanding immediately prior to the
Effective Time
(other than the Non-Exchangeable Shares) shall become and be
converted into, as
provided in and subject to the limitations set forth in this
Agreement, the
right to receive at the election of the holder thereof as
provided in Section
3.2, the following, without interest:
(A) for each share of GCB Common Stock with respect to which
an
election to receive cash has been effectively made and not
revoked, pursuant
<PAGE>
to Section 3.2 (a "Cash Election"), cash from OFC in an amount
equal to $21.40
(the "Cash Consideration") (collectively, "Cash Election
Shares");
(B) for each share of GCB Common Stock with respect to which
an
election to receive OFC Common Stock has been effectively made
and not revoked,
pursuant to Section 3.2 (a "Stock Election"), the number of
shares of OFC Common
Stock equal to the Exchange Ratio (the "Stock Consideration")
(collectively, the
"Stock Election Shares");
(C) a combination of the Cash Consideration and the Stock
Consideration (a "Mixed Election" and collectively the "Mixed
Election Shares");
and
(D) for each share of GCB Common Stock other than shares as to
which a
Cash Election, a Stock Election or a Mixed Election has been
effectively made
and not revoked, pursuant to Section 3.2 (collectively,
"Non-Election Shares"),
such Stock Consideration and/or Cash Consideration as is
determined in
accordance with Section 3.2.
3.1.4. After the Effective Time, shares of GCB Common Stock
shall be no
longer outstanding and shall automatically be canceled and shall
cease to exist,
and shall thereafter by operation of this section represent the
right to receive
the Merger Consideration and any dividends or distributions with
respect thereto
or any dividends or distributions with a record date prior to
the Effective Time
that were declared or made by GCB on such shares of GCB Common
Stock in
accordance with the terms of this Agreement on or prior to the
Effective Time
and which remain unpaid at the Effective Time.
3.1.5. In the event OFC changes (or establishes a record date
for changing)
the number of, or provides for the exchange of, shares of OFC
Common Stock
issued and outstanding prior to the Effective Time as a result
of a stock split,
stock dividend, recapitalization, reclassification, or similar
transaction
(including any exercise of any Rights by any Person pursuant to
which OFC
receives less than fair market value, which may be measured as
of the date of
the grant of the Right, for such shares) with respect to the
outstanding OFC
Common Stock and the record date therefor shall be prior to the
Effective Time,
the Exchange Ratio shall be proportionately and appropriately
adjusted to
provide the holders of GCB Common Stock the same economic effect
as contemplated
by this Agreement prior to such event; provided, that no such
adjustment shall
be made with regard to OFC Common Stock if OFC issues additional
shares of
Common Stock and receives fair market value consideration for
such shares and
provided, further, that no adjustment shall be made with regard
to OFC Common
Stock as a result of the grant of equity awards by OFC pursuant
to a stockholder
approved plan.
3.2. Election Procedures.
3.2.1. Holders of GCB Common Stock may elect to receive shares
of OFC
Common Stock or cash (in either case without interest) in
exchange for their
shares of GCB Common Stock in accordance with the procedures set
forth herein;
provided that, in the aggregate, and subject to the provisions
of this Section
3.2, 60% of the total number of shares of GCB Common Stock
issued and
outstanding at the Effective Time, excluding any
Non-Exchangeable Shares (the
"Stock Conversion Number"), shall be converted into the Stock
Consideration and
<PAGE>
the remaining outstanding shares of GCB Common Stock shall be
converted into the
Cash Consideration. Shares of GCB Common Stock as to which a
Cash Election
(including, pursuant to a Mixed Election) has been made are
referred to herein
as "Cash Election Shares." Shares of GCB Common Stock as to
which a Stock
Election has been made (including, pursuant to a Mixed Election)
are referred to
as "Stock Election Shares." Shares of GCB Common Stock as to
which no election
has been made (or as to which an Election Form is not returned
properly
completed) are referred to herein as "Non-Election Shares." The
aggregate number
of shares of GCB Common Stock with respect to which a Stock
Election has been
made is referred to herein as the "Stock Election Number."
3.2.2. An election form and other appropriate and customary
transmittal
materials (which shall specify that delivery shall be effected,
and risk of loss
and title to the Certificates shall pass, only upon proper
delivery of such
Certificates to the Exchange Agent), in such form as GCB and OFC
shall mutually
agree ("Election Form"), shall be mailed no more than 40
business days and no
less than 20 business days prior to the anticipated Effective
Time or on such
earlier date as OFC and GCB shall mutually agree (the "Mailing
Date") to each
holder of record of GCB Common Stock as of five business days
prior to the
Mailing Date (the "Election Form Record Date"). Each Election
Form shall permit
such holder, subject to the allocation and election procedures
set forth in this
Section 3.2, (i) to elect to receive the Cash Consideration for
all of the
shares of GCB Common Stock held by such holder, in accordance
with Section
3.1.3, (ii) to elect to receive the Stock Consideration for all
of such shares,
in accordance with Section 3.1.3, (iii) to elect to receive the
Stock
Consideration for a part of such holder's GCB Common Stock and
the Cash
Consideration for the remaining part of such holder's GCB Common
Stock, or (iv)
to indicate that such record holder has no preference as to the
receipt of cash
or OFC Common Stock for such shares. A holder of record of
shares of GCB Common
Stock who holds such shares as nominee, trustee or in another
representative
capacity (a "Representative") may submit multiple Election
Forms, provided that
each such Election Form covers all the shares of GCB Common
Stock held by such
Representative for a particular beneficial owner. Any shares of
GCB Common Stock
with respect to which the holder thereof shall not, as of the
Election Deadline,
have made an election by submission to the Exchange Agent of an
effective,
properly completed Election Form shall be deemed Non-Election
Shares.
3.2.3. To be effective, a properly completed Election Form shall
be
submitted to the Exchange Agent on or before 5:00 p.m., New
Jersey time, on the
20th day following the Mailing Date (or such other time and date
as OFC and GCB
may mutually agree) (the "Election Deadline"); provided,
however, that the
Election Deadline may not occur on or after the Closing Date.
GCB shall use its
reasonable best efforts to make available up to two separate
Election Forms, or
such additional Election Forms as OFC may permit, to all persons
who become
holders (or beneficial owners) of GCB Common Stock between the
Election Form
Record Date and the close of business on the business day prior
to the Election
Deadline. GCB shall provide to the Exchange Agent all
information reasonably
necessary for it to perform as specified herein. An election
shall have been
properly made only if the Exchange Agent shall have actually
received a properly
completed and duly executed Election Form by the Election
Deadline. An Election
Form shall be deemed properly completed only if accompanied by
one or more
Certificates (or customary affidavits and indemnification
regarding the loss or
destruction of such Certificates (including delivery by
electronic book-entry
form) or the guaranteed delivery of such Certificates)
representing all shares
of GCB Common Stock covered by such Election Form, together with
duly executed
transmittal materials included with the Election Form. If an GCB
shareholder
either (i) does not submit a properly completed Election Form in
a timely
fashion or (ii) revokes its Election Form prior to the Election
Deadline
(without later submitting a properly completed Election Form
prior to the
Election Deadline), the shares of GCB Common Stock held by such
shareholder
<PAGE>
shall be designated as Non-Election Shares. Any Election Form
may be revoked or
changed by the person submitting such Election Form to the
Exchange Agent by
written notice to the Exchange Agent only if such notice of
revocation or change
is actually received by the Exchange Agent at or prior to the
Election Deadline.
OFC shall cause the Certificate or Certificates relating to any
revoked Election
Form to be promptly returned without charge to the person
submitting the
Election Form to the Exchange Agent. Subject to the terms of
this Agreement and
of the Election Form, the Exchange Agent shall have discretion
to determine when
any election, modification or revocation is received and whether
any such
election, modification or revocation has been properly made. All
elections shall
be revoked automatically if the Exchange Agent is notified in
writing by OFC or
GCB, upon exercise by OFC or GCB of its respective or their
mutual rights to
terminate this Agreement to the extent provided under Article
XI, that this
Agreement has been terminated in accordance with Article XI and
OFC shall cause
all Certificates to be promptly returned without charge to all
persons
submitting Election Forms to the Exchange Agent.
3.2.4. If the aggregate number of shares of GCB Common Stock
with respect
to which Stock Elections shall have been made (the "Stock
Election Number")
exceeds the Stock Conversion Number, then all Cash Election
Shares and all
Non-Election Shares of each holder thereof shall be converted
into the right to
receive the Cash Consideration, and Stock Election Shares of
each holder thereof
will be converted into the right to receive the Stock
Consideration in respect
of that number of Stock Election Shares equal to the product
obtained by
multiplying (x) the number of Stock Election Shares held by such
holder by (y) a
fraction, the numerator of which is the Stock Conversion Number
and the
denominator of which is the Stock Election Number, with the
remaining number of
such holder's Stock Election Shares being converted into the
right to receive
the Cash Consideration.
3.2.5. If the Stock Election Number is less than the Stock
Conversion
Number (the amount by which the Stock Conversion Number exceeds
the Stock
Election Number being referred to herein as the "Shortfall
Number"), then all
Stock Election Shares shall be converted into the right to
receive the Stock
Consideration and the Non-Election Shares and Cash Election
Shares shall be
treated in the following manner:
(A) If the Shortfall Number is less than or equal to the number
of
Non-Election Shares, then all Cash Election Shares shall be
converted into the
right to receive the Cash Consideration and the Non-Election
Shares of each
holder thereof shall convert into the right to receive the Stock
Consideration
in respect of that number of Non-Election Shares equal to the
product obtained
by multiplying (x) the number of Non-Election Shares held by
such holder by (y)
a fraction, the numerator of which is the Shortfall Number and
the denominator
of which is the total number of Non-Election Shares, with the
remaining number
of such holder's Non-Election Shares being converted into the
right to receive
the Cash Consideration; or
(B) If the Shortfall Number exceeds the number of Non-Election
Shares,
then all Non-Election Shares shall be converted into the right
to receive the
Stock Consideration and Cash Election Shares of each holder
thereof shall
<PAGE>
convert into the right to receive the Stock Consideration in
respect of that
number of Cash Election Shares equal to the product obtained by
multiplying (x)
the number of Cash Election Shares held by such holder by (y) a
fraction, the
numerator of which is the amount by which (1) the Shortfall
Number exceeds (2)
the total number of Non-Election Shares and the denominator of
which is the
total number of Cash Election Shares, with the remaining number
of such holder's
Cash Election Shares being converted into the right to receive
the Cash
Consideration.
3.2.6. No Fractional Shares. Notwithstanding anything to the
contrary
contained herein, no certificates or scrip representing
fractional shares of OFC
Common Stock shall be issued upon the surrender for exchange of
Certificates, no
dividend or distribution with respect to OFC Common Stock shall
be payable on or
with respect to any fractional share interest, and such
fractional share
interests shall not entitle the owner thereof to vote or to any
other rights of
a shareholder of OFC. In lieu of the issuance of any such
fractional share, OFC
shall pay to each former holder of GCB Common Stock who
otherwise would be
entitled to receive a fractional share of OFC Common Stock, an
amount in cash,
rounded to the nearest cent and without interest, equal to the
product of (i)
the fraction of a share to which such holder would otherwise
have been entitled
and (ii) the OFC Market Value. For purposes of determining any
fractional share
interest, all shares of GCB Common Stock owned by a GCB
shareholder shall be
combined so as to calculate the maximum number of whole shares
of OFC Common
Stock issuable to such GCB shareholder.
3.3. Procedures for Exchange of GCB Common Stock.
3.3.1. OFC to Make Merger Consideration Available. After the
Election
Deadline and no later than the Closing Date, OFC shall deposit,
or shall cause
to be deposited, with the Exchange Agent for the benefit of the
holders of GCB
Common Stock, for exchange in accordance with this Section 3.3,
certificates
representing the shares of OFC Common Stock and an aggregate
amount of cash
sufficient to pay the aggregate amount of cash payable pursuant
to this Article
III (including any cash that may be payable in lieu of any
fractional shares of
GCB Common Stock) (such cash and certificates for shares of OFC
Common Stock,
together with any dividends or distributions with respect
thereto, being
hereinafter referred to as the "Exchange Fund").
3.3.2. Exchange of Certificates. OFC shall take all steps
necessary to
cause the Exchange Agent, within five (5) business days after
the Effective
Time, to mail to each holder of a Certificate or Certificates
(other than those
holders who submitted to the Exchange Agent all Certificates
held by such holder
pursuant to a properly completed Election Form, which was not
revoked), a form
letter of transmittal for return to the Exchange Agent and
instructions for use
in effecting the surrender of the Certificates for the Merger
Consideration and
cash in lieu of fractional shares, if any, into which the GCB
Common Stock
represented by such Certificates shall have been converted as a
result of the
Merger. The letter of transmittal 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 Exchange Agent. Upon proper surrender of
a Certificate
for exchange and cancellation to the Exchange Agent, pursuant to
a properly
completed Election Form or letter of transmittal, duly executed,
the holder of
such Certificate shall be entitled to receive in exchange
therefor, as
applicable, (i) a certificate representing that number of shares
of OFC Common
<PAGE>
Stock (if any) to which such former holder of GCB Common Stock
shall have become
entitled pursuant to the provisions of Section 3.1 or 3.2
hereof, (ii) a check
representing that amount of cash (if any) to which such former
holder of GCB
Common Stock shall have become entitled pursuant to the
provisions of Section
3.1 or 3.2 hereof and (iii) a check representing the amount of
cash (if any)
payable in lieu of fractional shares of OFC Common Stock, which
such former
holder has the right to receive in respect of the Certificate
surrendered
pursuant to the provisions of Section 3.2, and the Certificate
so surrendered
shall forthwith be cancelled. No interest will be paid or
accrued on the cash
payable in lieu of fractional shares. Certificates surrendered
for exchange by
any person who is an "affiliate" of GCB for purposes of Rule
145(c) under the
Securities Act shall not be exchanged for certificates
representing shares of
OFC Common Stock until OFC has received the written agreement of
such person
contemplated by Section 8.4 hereof.
3.3.3. Rights of Certificate Holders after the Effective Time.
The holder
of a Certificate that prior to the Merger represented issued and
outstanding GCB
Common Stock shall have no rights, after the Effective Time,
with respect to
such GCB Common Stock except to surrender the Certificate in
exchange for the
Merger Consideration as provided in this Agreement. No dividends
or other
distributions declared after the Effective Time with respect to
OFC Common Stock
shall be paid to the holder of any unsurrendered Certificate
until the holder
thereof shall surrender such Certificate in accordance with this
Section 3.3.
After the surrender of a Certificate in accordance with this
Section 3.3, the
record holder thereof shall be entitled to receive any such
dividends or other
distributions, without any interest thereon, which theretofore
had become
payable with respect to shares of OFC Common Stock represented
by such
Certificate.
3.3.4. Surrender by Persons Other than Record Holders. If the
Person
surrendering a Certificate and signing the accompanying letter
of transmittal is
not the record holder thereof, then it shall be a condition of
the payment of
the Merger Consideration that: (i) such Certificate is properly
endorsed to such
Person or is accompanied by appropriate stock powers, in either
case signed
exactly as the name of the record holder appears on such
Certificate, and is
otherwise in proper form for transfer, or is accompanied by
appropriate evidence
of the authority of the Person surrendering such Certificate and
signing the
letter of transmittal to do so on behalf of the record holder;
and (ii) the
person requesting such exchange shall pay to the Exchange Agent
in advance any
transfer or other taxes required by reason of the payment to a
person other than
the registered holder of the Certificate surrendered, or
required for any other
reason, or shall establish to the satisfaction of the Exchange
Agent that such
tax has been paid or is not payable.
3.3.5. Closing of Transfer Books. From and after the Effective
Time, there
shall be no transfers on the stock transfer books of GCB of the
GCB Common Stock
that were outstanding immediately prior to the Effective Time.
If, after the
Effective Time, Certificates representing such shares are
presented for transfer
to the Exchange Agent, they shall be exchanged for the Merger
Consideration and
canceled as provided in this Section 3.3.
3.3.6. Return of Exchange Fund. At any time following the six
(6) month
period after the Effective Time, OFC shall be entitled to
require the Exchange
Agent to deliver to it any portions of the Exchange Fund which
had been made
available to the Exchange Agent and not disbursed to holders of
Certificates
(including, without limitation, all interest and other income
received by the
<PAGE>
Exchange Agent in respect of all funds made available to it),
and thereafter
such holders shall be entitled to look to OFC (subject to
abandoned property,
escheat and other similar laws) with respect to any Merger
Consideration that
may be payable upon due surrender of the Certificates held by
them.
Notwithstanding the foregoing, neither OFC nor the Exchange
Agent shall be
liable to any holder of a Certificate for any Merger
Consideration delivered in
respect of such Certificate to a public official pursuant to any
abandoned
property, escheat or other similar law.
3.3.7. Lost, Stolen or Destroyed Certificates. In the event any
Certificate
shall have been lost, stolen or destroyed, upon the making of an
affidavit of
that fact by the person claiming such Certificate to be lost,
stolen or
destroyed and, if required by OFC, the posting by such person of
a bond in such
amount as OFC may reasonably direct as indemnity against any
claim that may be
made against it with respect to such Certificate, the Exchange
Agent will issue
in exchange for such lost, stolen or destroyed Certificate the
Merger
Consideration deliverable in respect thereof.
3.3.8. Withholding. OFC or the Exchange Agent will be entitled
to deduct
and withhold from the consideration otherwise payable pursuant
to this Agreement
or the transactions contemplated hereby to any holder of GCB
Common Stock such
amounts as OFC (or any Affiliate thereof) or the Exchange Agent
are required to
deduct and withhold with respect to the making of such payment
under the Code,
or any applicable provision of U.S. federal, state, local or
non-U.S. tax law.
To the extent that such amounts are properly withheld by OFC or
the Exchange
Agent, such withheld amounts will be treated for all purposes of
this Agreement
as having been paid to the holder of the GCB Common Stock in
respect of whom
such deduction and withholding were made by OFC or the Exchange
Agent.
3.3.9. Treatment of GCB Options. GCB DISCLOSURE SCHEDULE 4.3.1
sets forth
all of the outstanding GCB Options as of the date hereof. Prior
to and effective
as of the Effective Time, GCB shall take all actions necessary
to terminate the
GCB Stock Benefit Plans. Holders of all unexercised GCB Options
as of the
Effective Time will be entitled to receive, in cancellation of
their GCB
Options, a cash payment from GCB immediately prior to the
Effective Time, in an
amount equal to the product of (x) the number of shares of GCB
Common Stock
provided for in such GCB Option (whether vested or unvested) and
(y) the excess,
if any, of $21.40 over the exercise price per share provided for
in such GCB
Option (the "Cash Option Payment"), which cash payment shall be
treated as
compensation and shall be net of any applicable federal or state
withholding
tax. At the time of receipt of such cash payment, each holder of
a GCB Option
shall acknowledge in writing that such cash payment is in full
satisfaction of
such holder's rights under such GCB Option.
3.3.10. Reservation of Shares. OFC shall reserve for issuance a
sufficient
number of shares of the OFC Common Stock for the purpose of
issuing shares of
OFC Common Stock to the GCB shareholders in accordance with this
Article III.
3.3.11. Book Entry. Notwithstanding any other provision of this
Agreement,
the Election Form and the letter of transmittal may, at the
option of OFC,
provide for the ability of a holder of one or more Certificates
to elect that
<PAGE>
the OFC Common Stock be received in exchange for the GCB Common
Stock formerly
represented by such surrendered Certificates be issued in
book-entry form.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF GCB
GCB represents and warrants to OFC that the statements contained
in this
Article IV are correct and complete as of the date of this
Agreement and will be
correct and complete as of the Closing Date (as though made then
and as though
the Closing Date were substituted for the date of this Agreement
throughout this
Article IV), subject to the standard set forth in Section 4.1
and except as set
forth in the GCB DISCLOSURE SCHEDULE delivered by GCB to OFC on
the date hereof,
and except as to any representation or warranty which
specifically relates to an
earlier date, which only need be so correct as of such earlier
date. GCB has
made a good faith effort to ensure that the disclosure on each
schedule of the
GCB DISCLOSURE SCHEDULE corresponds to the section referenced
herein. However,
for purposes of the GCB DISCLOSURE SCHEDULE, any item disclosed
on any schedule
therein is deemed to be fully disclosed with respect to all
schedules under
which such item may be relevant as and to the extent that it is
reasonably clear
on the face of such schedule that such item applies to such
other schedule.
References to the Knowledge of GCB shall include the Knowledge
of GC Bank.
4.1. Standard.
No representation or warranty of GCB contained in this Article
IV shall be
deemed untrue or incorrect, and GCB shall not be deemed to have
breached a
representation or warranty, as a consequence of the existence of
any fact,
circumstance or event unless such fact, circumstance or event,
individually or
taken together with all other facts, circumstances or events
inconsistent with
any paragraph of Article IV, has had or is reasonably expected
to have a
Material Adverse Effect, disregarding for these purposes (x) any
qualification
or exception for, or reference to, materiality in any such
representation or
warranty and (y) any use of the terms "material", "materially",
"in all material
respects", "Material Adverse Effect" or similar terms or phrases
in any such
representation or warranty. The foregoing standard shall not
apply to
representations and warranties contained in Sections 4.2 (other
than the last
sentence of Sections 4.2.1 and 4.2.2), and Sections 4.2.4,
4.2.5, 4.3, 4.4, 4.8,
4.13.5, 4.13.8, 4.13.10 and 4.13.11, which shall be deemed
untrue, incorrect and
breached if they are not true and correct in all material
respects based on the
qualifications and standards therein contained. Provided
further, that as to the
representations contained in Sections 4.13.5, 4.13.8, 4.13.10,
4.13.11, if there
is a breach that relates to an undisclosed payment, expense
accrual or cost in
excess of $300,000 (either individually or in the aggregate),
such breach shall
be considered material.
4.2. Organization.
4.2.1. GCB is a corporation duly organized, validly existing and
in good
standing under the laws of the State of New Jersey, and is duly
registered as a
bank holding company under the BHCA. GCB has 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
<PAGE>
its ownership or leasing of property or the conduct of its
business requires
such qualification. 4.2.2. GC Bank is a New Jersey chartered
bank duly
organized, validly existing and in good standing (to the extent
required) under
the laws of the State of New Jersey. The deposits of GC Bank are
insured by the
FDIC to the fullest extent permitted by law, and all premiums
and assessments
required to be paid in connection therewith have been paid by GC
Bank when due.
GC Bank is a member in good standing of the FHLB and owns the
requisite amount
of stock therein.
4.2.3. GCB DISCLOSURE SCHEDULE 4.2.3 sets forth each GCB
Subsidiary. Each
GCB Subsidiary is a corporation or limited liability company
duly organized,
validly existing and in good standing under the laws of its
jurisdiction of
incorporation or organization.
4.2.4. The respective minute books of GCB, GC Bank and each
other GCB
Subsidiary accurately records, in all material respects, all
material corporate
actions of their respective shareholders and boards of directors
(including
committees).
4.2.5. Prior to the date of this Agreement, GCB has made
available to OFC
true and correct copies of the certificate of incorporation or
charter and
bylaws of GCB, GC Bank and each other GCB Subsidiary.
4.3. Capitalization.
4.3.1. The authorized capital stock of GCB consists of
20,000,000 shares of
common stock, $0.50 par value per share, of which, as of the
date hereof,
8,712,243.6460 shares are outstanding, validly issued, fully
paid and
nonassessable and free of preemptive rights, and 1,000,000
shares of preferred
stock, without par value, no shares of which are outstanding.
There are no
shares of GCB Common Stock held by GCB as treasury stock.
Neither GCB nor any
GCB Subsidiary has or is bound by any Rights of any character
relating to the
purchase, sale or issuance or voting of, or right to receive
dividends or other
distributions on any shares of GCB Common Stock, or any other
security of GCB or
a GCB Subsidiary or any securities representing the right to
vote, purchase or
otherwise receive any shares of GCB Common Stock or any other
security of GCB or
any GCB Subsidiary, other than (i) shares issuable under the GCB
Stock Benefit
Plans, (ii) capital securities issued by GCB Capital Trust III
(the "Trust");
(iii) debentures issued by GCB to the Trust; (iv) the guarantee
issued by GCB to
the holders of the capital securities issued by the Trust; and
the (v) the GCB
DRIP. GCB DISCLOSURE SCHEDULE 4.3.1 sets forth the name of each
holder of
options to purchase GCB Common Stock, the number of shares each
such individual
may acquire pursuant to the exercise of such options, the grant
and vesting
dates, and the exercise price relating to the options held, as
well as the names
of each holder of an outstanding restricted stock award under
the GCB Stock
Benefit Plans, the number of shares subject to each award, the
grant and vesting
date thereof.
4.3.2. GCB owns all of the capital stock of GC Bank, free and
clear of any
lien or encumbrance. Except for the GCB Subsidiaries, and as set
forth on GCB
DISCLOSURE SCHEDULE 4.3.2, GCB does not possess, directly or
indirectly, any
material equity interest in any corporate entity, except for
equity interests
<PAGE>
held in the investment portfolios of GCB Subsidiaries, equity
interests held by
GCB Subsidiaries in a fiduciary capacity, and equity interests
held in
connection with the lending activities of GCB Subsidiaries,
including stock in
the FHLB. Either GCB or GC Bank owns all of the outstanding
shares of capital
stock of each GCB Subsidiary free and clear of all liens,
security interests,
pledges, charges, encumbrances, agreements and restrictions of
any kind or
nature, except that, in the case of the Trust, GCB owns 100% of
the common
securities and less than 100% of the preferred securities.
4.3.3. To GCB's Knowledge, except as set forth in the GCB
DISCLOSURE
SCHEDULE 4.3.3, no Person or "group" (as that term is used in
Section 13(d)(3)
of the Exchange Act), is the beneficial owner (as defined in
Section 13(d) of
the Exchange Act) of 5% or more of the outstanding shares of GCB
Common Stock.
4.4. Authority; No Violation.
4.4.1. GCB has full corporate power and authority to execute and
deliver
this Agreement and, subject to the receipt of the Regulatory
Approvals and the
approval of this Agreement by GCB's and OFC's shareholders, to
consummate the
transactions contemplated hereby. The execution and delivery of
this Agreement
by GCB and the completion by GCB of the transactions
contemplated hereby,
including the Merger and the Bank Merger, have been duly and
validly approved by
the Board of Directors of GCB, and no other corporate
proceedings on the part of
GCB, except for the approval of the GCB shareholders, is
necessary to complete
the transactions contemplated hereby, including the Merger. This
Agreement has
been duly and validly executed and delivered by GCB, and subject
to approval by
the shareholders of GCB and receipt of the Regulatory Approvals
and due and
valid execution and delivery of this Agreement by OFC,
constitutes the valid and
binding obligation of GCB, enforceable against GCB in accordance
with its terms,
subject to applicable bankruptcy, insolvency and similar laws
affecting
creditors' rights generally, and subject, as to enforceability,
to general
principles of equity.
4.4.2. Subject to receipt of Regulatory Approvals and GCB's and
OFC's
compliance with any conditions contained therein, and to the
receipt of the
approval of the shareholders of GCB, (A) the execution and
delivery of this
Agreement by GCB, (B) the consummation of the transactions
contemplated hereby,
and (C) compliance by GCB with any of the terms or provisions
hereof will not
(i) conflict with or result in a breach of any provision of the
certificate of
incorporation or bylaws of GCB or any GCB Subsidiary or the
charter and bylaws
of GC Bank; (ii) violate any statute, code, ordinance, rule,
regulation,
judgment, order, writ, decree or injunction applicable to GCB or
any GCB
Subsidiary or any of their respective properties or assets; or
(iii) except as
set forth on GCB DISCLOSURE SCHEDULE 4.4.2, violate, conflict
with, result in a
breach of any provisions of, constitute a default (or an event
which, with
notice or lapse of time, or both, would constitute a default),
under, result in
the termination of, accelerate the performance required by, or
result in a right
of termination or acceleration or the creation of any lien,
security interest,
charge or other encumbrance upon any of the properties or assets
of GCB or GC
Bank under any of the terms, conditions or provisions of any
note, bond,
mortgage, indenture, deed of trust, license, lease, agreement or
other
investment or obligation to which GCB or GC Bank is a party, or
by which they or
any of their respective properties or assets may be bound or
affected, except
<PAGE>
for such violations, conflicts, breaches or defaults under
clause (ii) or (iii)
hereof which, either individually or in the aggregate, will not
have a Material
Adverse Effect on GCB.
4.5. Consents.
Except for (a) filings with Bank Regulators, the receipt of the
Regulatory
Approvals, and compliance with any conditions contained therein,
including the
filing of Articles of Combination with the OTS, (b) the filing
of the
Certificate of Merger with the Secretary of State of the State
of New Jersey,
(c) the filing with the SEC of (i) the Merger Registration
Statement and (ii)
such reports under Sections 13(a), 13(d), 13(g) and 16(a) of the
Exchange Act as
may be required in connection with this Agreement and the
transactions
contemplated hereby and the obtaining from the SEC of such
orders as may be
required in connection therewith, (d) approval of the listing of
OFC Common
Stock to be issued in the Merger on the Nasdaq, (e) such filings
and approvals
as are required to be made or obtained under the securities or
"Blue Sky" laws
of various states in connection with the issuance of the shares
of OFC Common
Stock pursuant to this Agreement, and (f) the approval of this
Agreement by the
requisite vote of the shareholders of GCB, no consents, waivers
or approvals of,
or filings or registrations with, any Governmental Entity are
necessary, and, to
GCB's Knowledge, except as set forth on GCB DISCLOSURE SCHEDULE
4.5, no
consents, waivers or approvals of, or filings or registrations
with, any other
third parties are necessary, in connection with (x) the
execution and delivery
of this Agreement by GCB, and (y) the completion of the Merger
and the Bank
Merger. GCB has no reason to believe that (i) any Regulatory
Approvals or other
required consents or approvals will not be received, or that
(ii) any public
body or authority, the consent or approval of which is not
required or to which
a filing is not required, will object to the completion of the
transactions
contemplated by this Agreement.
4.6. Financial Statements.
4.6.1. GCB has previously made available to OFC the GCB
Regulatory Reports.
The GCB Regulatory Reports have been prepared in all material
respects in
accordance with applicable regulatory accounting principles and
practices
throughout the periods covered by such statements.
4.6.2. GCB has previously made available to OFC the GCB
Financial
Statements. The GCB Financial Statements have been prepared in
accordance with
GAAP, and (including the related notes where applicable) fairly
present in each
case in all material respects (subject in the case of the
unaudited interim
statements to normal year-end adjustments), the consolidated
financial position,
results of operations and cash flows of GCB and the GCB
Subsidiaries on a
consolidated basis as of and for the respective periods ending
on the dates
thereof, in accordance with GAAP during the periods involved,
except as
indicated in the notes thereto, or in the case of unaudited
statements, as
permitted by Form 10-Q.
4.6.3. At the date of each balance sheet included in the GCB
Financial
Statements or the GCB Regulatory Reports, neither GCB nor GC
Bank, as
applicable, had any liabilities, obligations or loss
contingencies of any nature
(whether absolute, accrued, contingent or otherwise) of a type
required to be
reflected in such GCB Financial Statements or GCB Regulatory
Reports or in the
<PAGE>
footnotes thereto which are not fully reflected or reserved
against therein or
fully disclosed in a footnote thereto, except for liabilities,
obligations and
loss contingencies which are not material individually or in the
aggregate or
which are incurred in the ordinary course of business,
consistent with past
practice, and except for liabilities, obligations and loss
contingencies which
are within the subject matter of a specific representation and
warranty herein
and subject, in the case of any unaudited statements, to normal,
recurring audit
adjustments and the absence of footnotes.
4.6.4. The records, systems, controls, data and information of
GCB and its
Subsidiaries are recorded, stored, maintained and operated under
means
(including any electronic, mechanical or photographic process,
whether
computerized or not) that are under the exclusive ownership and
direct control
of GCB or its Subsidiaries or accountants (including all means
of access thereto
and therefrom), except for any non-exclusive ownership and
non-direct control
that would not reasonably be expected to have a material adverse
effect on the
system of internal accounting controls described below in this
Section 4.6.4.
GCB (x) has implemented and maintains a system of internal
control over
financial reporting (as required by Rule 13a-15(a) of the
Exchange Act) that is
designed to provide reasonable assurances regarding the
reliability of financial
reporting and the preparation of its financial statements for
external purposes
in accordance with GAAP, (y) has implemented and maintains
disclosure controls
and procedures (as defined in Rule 13a-15(e) of the Exchange
Act) to ensure that
material information relating to GCB, including its consolidated
Subsidiaries,
is made known to the chief executive officer and the chief
financial officer of
GCB by others within those entities, and (z) has disclosed,
based on its most
recent evaluation prior to the date hereof, to GCB's outside
auditors and the
audit committee of GCB's Board of Directors (i) any significant
deficiencies and
material weaknesses in the design or operation of internal
control over
financial reporting (as defined in Rule 13a-15(f) of the
Exchange Act) which are
reasonably likely to adversely affect GCB's ability to record,
process,
summarize and report financial information and (ii) any fraud,
whether or not
material, that involves management or other employees who have a
significant
role in GCB's internal control over financial reporting. These
disclosures (if
any) were made in writing by management to GCB's auditors and
audit committee
and a copy has previously been made available to OFC. As of the
date hereof, to
the knowledge of GCB, its chief executive officer and chief
financial officer
will be able to give the certifications required pursuant to the
rules and
regulations adopted pursuant to Section 302 of the
Sarbanes-Oxley Act, without
qualification, when next due.
4.6.5. Since December 31, 2003, (i) neither GCB nor any of its
Subsidiaries
nor, to the Knowledge of GCB, any director, officer, employee,
auditor,
accountant or representative of GCB or any of its Subsidiaries
has received or
otherwise had or obtained knowledge of any material complaint,
allegation,
assertion or claim, whether written or oral, regarding the
accounting or
auditing practices, procedures, methodologies or methods of GCB
or any of its
Subsidiaries or their respective internal accounting controls,
including any
material complaint, allegation, assertion or claim that GCB or
any of its
Subsidiaries has engaged in questionable accounting or auditing
practices, and
(ii) no attorney representing GCB or any of its Subsidiaries,
has reported
evidence of a material violation of Securities Laws, breach of
fiduciary duty or
similar violation by GCB or any of its officers, directors,
employees or agents
to the Board of Directors of GCB or any committee thereof or to
any director or
officer of GCB.
<PAGE>
4.7. Taxes.
GCB and the GCB Subsidiaries that are at least 80 percent owned
by GCB are
members of the same affiliated group within the meaning of Code
Section 1504(a).
GCB has duly filed all federal, state and material local tax
returns required to
be filed by or with respect to GCB and every GCB Subsidiary on
or prior to the
Closing Date, taking into account any extensions (all such
returns, to GCB's
Knowledge, being accurate and correct in all material respects)
and has duly
paid or made provisions for the payment of all material federal,
state and local
taxes which have been incurred by or are due or claimed to be
due from GCB and
any GCB Subsidiary by any taxing authority or pursuant to any
written tax
sharing agreement on or prior to the Closing Date other than
taxes or other
charges which (i) are not delinquent, (ii) are being contested
in good faith, or
(iii) have not yet been fully determined. Except as set forth in
GCB DISCLOSURE
SCHEDULE 4.7, as of the date of this Agreement, GCB has received
no written
notice of, and to GCB's Knowledge there is no audit examination,
deficiency
assessment, tax investigation or refund litigation with respect
to any taxes of
GCB or any of its Subsidiaries, and no claim has been made by
any authority in a
jurisdiction where GCB or any of its Subsidiaries do not file
tax returns that
GCB or any such Subsidiary is subject to taxation in that
jurisdiction. Except
as set forth in GCB DISCLOSURE SCHEDULE 4.7, GCB and its
Subsidiaries have not
executed an extension or waiver of any statute of limitations on
the assessment
or collection of any material tax due that is currently in
effect. GCB and each
of its Subsidiaries has withheld and paid all taxes required to
have been
withheld and paid in connection with amounts paid or owing to
any employee,
independent contractor, creditor, shareholder or other third
party, and GCB and
each of its Subsidiaries, to GCB's Knowledge, has timely
complied with all
applicable information reporting requirements under Part III,
Subchapter A of
Chapter 61 of the Code and similar applicable state and local
information
reporting requirements.
4.8. No Material Adverse Effect.
GCB has not suffered any Material Adverse Effect since December
31, 2006
and no event has occurred or circumstance arisen since that date
which, in the
aggregate, has had or is reasonably likely to have a Material
Adverse Effect on
GCB.
4.9. Material Contracts; Leases; Defaults.
4.9.1. Except as set forth in GCB DISCLOSURE SCHEDULE 4.9.1,
neither GCB
nor any GCB Subsidiary is a party to or subject to: (i) any
employment,
consulting or severance contract or material arrangement with
any past or
present officer, director or employee of GCB or any GCB
Subsidiary, except for
"at will" arrangements; (ii) any plan, material arrangement or
contract
providing for bonuses, pensions, options, deferred compensation,
retirement
payments, profit sharing or similar material arrangements for or
with any past
or present officers, directors or employees of GCB or any GCB
Subsidiary; (iii)
any collective bargaining agreement with any labor union
relating to employees
of GCB or any GCB Subsidiary; (iv) any agreement which by its
terms limits the
payment of dividends by GCB or any GCB Subsidiary; (v) any
instrument evidencing
or related to material indebtedness for borrowed money whether
directly or
indirectly, by way of purchase money obligation, conditional
sale, lease
purchase, guaranty or otherwise, in respect of which GCB or any
GCB Subsidiary
is an obligor to any person, which instrument evidences or
relates to
<PAGE>
indebtedness other than deposits, repurchase agreements, FHLB
advances, bankers'
acceptances, and "treasury tax and loan" accounts and
transactions in "federal
funds" in each case established in the ordinary course of
business consistent
with past practice, or which contains financial covenants or
other restrictions
(other than those relating to the payment of principal and
interest when due)
which would be applicable on or after the Closing Date to OFC or
any OFC
Subsidiary; (vi) any other agreement, written or oral, that
obligates GCB or any
GCB Subsidiary for the payment of more than $25,000 annually or
for the payment
of more than $50,000 over its remaining term, which is not
terminable without
cause on 60 days' or less notice without penalty or payment, or
(vii) any
agreement (other than this Agreement), contract, arrangement,
commitment or
understanding (whether written or oral) that restricts or limits
in any material
way the conduct of business by GCB or any GCB Subsidiary (it
being understood
that any non-compete or similar provision shall be deemed
material).
4.9.2. Each real estate lease that requires the consent of the
lessor or
its agent resulting from the Merger or the Bank Merger by virtue
of the terms of
any such lease, is listed in GCB DISCLOSURE SCHEDULE 4.9.2
identifying the
section of the lease that contains such prohibition or
restriction. Subject to
any consents that may be required as a result of the
transactions contemplated
by this Agreement, to its Knowledge, neither GCB nor any GCB
Subsidiary is in
default in any material respect under any material contract,
agreement,
commitment, arrangement, lease, insurance policy or other
instrument to which it
is a party, by which its assets, business, or operations may be
bound or
affected, or under which it or its assets, business, or
operations receive
benefits, and there has not occurred any event that, with the
lapse of time or
the giving of notice or both, would constitute such a
default.
4.9.3. True and correct copies of agreements, contracts,
arrangements and
instruments referred to in Section 4.9.1 and 4.9.2 have been
made available to
OFC on or before the date hereof, and are in full force and
effect on the date
hereof and neither GCB nor any GCB Subsidiary (nor, to the
Knowledge of GCB, any
other party to any such contract, arrangement or instrument) has
materially
breached any provision of, or is in default in any respect under
any term of,
any such contract, arrangement or instrument, except as set
forth in GCB
DISCLOSURE SCHEDULE 4.9.3. Except as listed on GCB DISCLOSURE
SCHEDULE 4.9.3, no
party to any material contract, arrangement or instrument will
have the right to
terminate any or all of the provisions of any such contract,
arrangement or
instrument as a result of the execution of, and the consummation
of the
transactions contemplated by, this Agreement. Except as set
forth in GCB
DISCLOSURE SCHEDULE 4.9.3, no plan, contract, employment
agreement, termination
agreement, or similar agreement or arrangement to which GCB or
any GCB
Subsidiary is a party or under which GCB or any GCB Subsidiary
may be liable
contains provisions which permit an employee or independent
contractor to
terminate it without cause and continue to accrue future
benefits thereunder.
Except as set forth in GCB DISCLOSURE SCHEDULE 4.9.3, no such
agreement, plan,
contract, or arrangement (x) provides for acceleration in the
vesting of
benefits or payments due thereunder upon the occurrence of a
change in ownership
or control of GCB or any GCB Subsidiary or upon the occurrence
of a subsequent
event; or (y) requires GCB or any GCB Subsidiary to provide a
benefit in the
form of GCB Common Stock or determined by reference to the value
of GCB Common
Stock.
4.9.4. Since December 31, 2006, through and including the date
of this
Agreement, except as set forth in GCB DISCLOSURE SCHEDULE 4.9.4,
neither GCB nor
<PAGE>
any GCB Subsidiary has (i) except for (A) normal increases for
employees (other
than officers and directors subject to the reporting
requirements of Section
16(a) of the Exchange Act) made in the ordinary course of
business consistent
with past practice, or (B) as required by applicable law,
increased the wages,
salaries, compensation, pension, or other fringe benefits or
perquisites payable
to any executive officer, employee, or director from the amount
thereof in
effect as of December 31, 2006 (which amounts have been
previously made
available to OFC), granted any severance or termination pay,
entered into any
contract to make or grant any severance or termination pay
(except as required
under the terms of agreements or severance plans listed on GCB
DISCLOSURE
SCHEDULE 4.13.1, as in effect as of the date hereof), or paid
any bonus other
than the customary year-end bonuses in amounts consistent with
past practice,
(ii) granted any options to purchase shares of GCB Common Stock,
or any right to
acquire any shares of its capital stock to any executive
officer, director or
employee other than grants to employees (other than officers
subject to the
reporting requirements of Section 16(a) of the Exchange Act)
made in the
ordinary course of business consistent with past practice under
GCB Stock
Benefit Plans, (iii) increased or established any bonus,
insurance, severance,
deferred compensation, pension, retirement, profit sharing,
stock option
(including, without limitation, the granting of stock options,
stock
appreciation rights, performance awards, or restricted stock
awards), stock
purchase or other employee benefit plan, (iv) made any material
election for
federal or state income tax purposes, (v) made any material
change in the credit
policies or procedures of GCB or any of its Subsidiaries, the
effect of which
was or is to make any such policy or procedure less restrictive
in any material
respect, (vi) made any material acquisition or disposition of
any assets or
properties, or any contract for any such acquisition or
disposition entered into
other than loans and loan commitments, (vii) entered into any
lease of real or
personal property requiring annual payments in excess of
$50,000, other than in
connection with foreclosed property or in the ordinary course of
business
consistent with past practice, (viii) changed any accounting
methods, principles
or practices of GCB or its Subsidiaries affecting its assets,
liabilities or
businesses, including any reserving, renewal or residual method,
practice or
policy or (ix) suffered any strike, work stoppage, slow-down, or
other labor
disturbance.
4.10. Ownership of Property; Insurance Coverage.
4.10.1. Except as set forth in GCB DISCLOSURE SCHEDULE 4.10, GCB
and each
GCB Subsidiary has good and, as to real property, marketable
title to all
material assets and properties owned by GCB or each GCB
Subsidiary in the
conduct of its businesses, whether such assets and properties
are real or
personal, tangible or intangible, including assets and property
reflected in the
balance sheets contained in the GCB Regulatory Reports and in
the GCB Financial
Statements or acquired subsequent thereto (except to the extent
that such assets
and properties have been disposed of in the ordinary course of
business, since
the date of such balance sheets), subject to no material
encumbrances, liens,
mortgages, security interests or pledges, except (i) those items
which secure
liabilities for public or statutory obligations or any discount
with, borrowing
from or other obligations to FHLB, inter-bank credit facilities,
or any
transaction by an GCB Subsidiary acting in a fiduciary capacity,
(ii) statutory
liens for amounts not yet delinquent or which are being
contested in good faith,
(iii) non-monetary liens affecting real property which do not
materially and
adversely affect the value or use of such real property, and
(iv) those
described and reflected in the GCB Financial Statements. GCB and
the GCB
Subsidiaries, as lessee, have the right under valid and existing
leases of real
and personal properties used by GCB and its Subsidiaries in the
conduct of their
<PAGE>
businesses to occupy or use all such properties as presently
occupied and used
by each of them.
4.10.2. With respect to all material agreements pursuant to
which GCB or
any GCB Subsidiary has purchased securities subject to an
agreement to resell,
if any, GCB or such GCB Subsidiary, as the case may be, has a
lien or security
interest (which to GCB's Knowledge is a valid, perfected first
lien) in the
securities or other collateral securing the repurchase
agreement, and the value
of such collateral equals or exceeds the amount of the debt
secured thereby.
4.10.3. GCB and each GCB Subsidiary currently maintain insurance
considered
by each of them to be reasonable for their respective
operations. Neither GCB
nor any GCB Subsidiary has received notice from any insurance
carrier during the
past two years that (i) such insurance will be canceled or that
coverage
thereunder will be materially reduced or eliminated, or (ii)
premium costs
(other than with respect to health or disability insurance) with
respect to such
policies of insurance will be substantially increased. There are
presently no
material claims pending under such policies of insurance and no
notices have
been given by GCB or any GCB Subsidiary under such policies
(other than with
respect to health, disability or worker's compensation
insurance). All such
insurance is valid and enforceable and in full force and effect
in all material
respects, and within the last two years GCB and each GCB
Subsidiary has received
each type of insurance coverage for which it has applied and
during such periods
has not been denied indemnification for any material claims
submitted under any
of its insurance policies. GCB DISCLOSURE SCHEDULE 4.10.3
identifies all
material policies of insurance maintained by GCB and each GCB
Subsidiary.
4.11. Legal Proceedings.
Except as set forth in GCB DISCLOSURE SCHEDULE 4.11, neither GCB
nor any
GCB Subsidiary is a party to any, and there are no pending or,
to GCB's
Knowledge, threatened legal, administrative, arbitration or
other proceedings,
claims (whether asserted or unasserted), actions or governmental
investigations
or inquiries of any nature (i) against GCB or any GCB
Subsidiary, (ii) to which
GCB or any GCB Subsidiary's assets are or may be subject, (iii)
challenging the
validity or propriety of any of the transactions contemplated by
this Agreement,
or (iv) which could adversely affect the ability of GCB or GC
Bank to perform
under this Agreement, except, in each of (i) through (iv) above,
for any
proceeding, claim, action, investigation or inquiry which, if
adversely
determined, individually or in the aggregate, would not be
reasonably expected
to have a Material Adverse Effect on GCB.
4.12. Compliance With Applicable Law.
4.12.1. To GCB's Knowledge, and except as set forth in GCB
DISCLOSURE
SCHEDULE 4.12.1, each of GCB and each GCB Subsidiary is in
compliance in all
material respects with all applicable federal, state, local and
foreign
statutes, laws, regulations, ordinances, rules, judgments,
orders or decrees
applicable to it, its properties, assets and deposits, its
business, and its
conduct of business and its relationship with its employees,
including, without
limitation, the USA Patriot Act, the Equal Credit Opportunity
Act, the Fair
Housing Act, the Community Reinvestment Act of 1977, the Home
Mortgage
Disclosure Act, and all other applicable fair lending laws and
other laws
<PAGE>
relating to discriminatory business practices and neither GCB
nor any GCB
Subsidiary has received, since December 31, 2003, any written
notice to the
contrary. The Board of Directors of GC Bank has adopted and GC
Bank has
implemented an anti-money laundering program that contains
adequate and
appropriate customer identification verification procedures that
has not been
deemed ineffective by any Governmental Authority and that meets
the requirements
of Sections 352 and 326 of the USA Patriot Act and the
regulations thereunder.
4.12.2. Each of GCB and each GCB Subsidiary has all material
permits,
licenses, authorizations, orders and approvals of, and has made
all filings,
applications and registrations with, all Governmental Entities
and Bank
Regulators that are required in order to permit it to own or
lease its
properties and to conduct its business as presently conducted;
all such permits,
licenses, certificates of authority, orders and approvals are in
full force and
effect and, to the Knowledge of GCB, no suspension or
cancellation of any such
permit, license, certificate, order or approval is threatened or
will result
from the consummation of the transactions contemplated by this
Agreement,
subject to obtaining Regulatory Approvals.
4.12.3. Since December 31, 2003, neither GCB nor any GCB
Subsidiary has
received any written notification or, to the Knowledge of GCB,
any other
communication from any Bank Regulator (i) asserting that GCB or
any GCB
Subsidiary is not in material compliance with any of the
statutes, regulations
or ordinances which such Bank Regulator enforces; (ii)
threatening to revoke any
license, franchise, permit or governmental authorization which
is material to
GCB or any GCB Subsidiary; (iii) requiring, or threatening to
require, GCB or
any GCB Subsidiary, or indicating that GCB or any GCB Subsidiary
may be
required, to enter into a cease and desist order, agreement or
memorandum of
understanding or any other agreement with any federal or state
governmental
agency or authority which is charged with the supervision or
regulation of banks
or engages in the insurance of bank deposits restricting or
limiting, or
purporting to restrict or limit, in any material respect the
operations of GCB
or any GCB Subsidiary, including without limitation any
restriction on the
payment of dividends; or (iv) directing, restricting or
limiting, or purporting
to direct, restrict or limit, in any material fashion the
operations of GCB or
any GCB Subsidiary, including without limitation any restriction
on the payment
of dividends (any such notice, communication, memorandum,
agreement or order
described in this sentence is hereinafter referred to as a "GCB
Regulatory
Agreement"). Neither GCB nor GC Bank nor any other GCB
Subsidiary has consented
to or entered into any GCB Regulatory Agreement that is
currently in effect or
that was in effect since December 31, 2003. The most recent
regulatory rating
given to GC Bank as to compliance with the Community
Reinvestment Act ("CRA") is
satisfactory or better.
4.12.4. Since the enactment of the Sarbanes-Oxley Act, GCB has
been and is
in compliance in all material respects with (i) the applicable
provisions of the
Sarbanes-Oxley Act and (ii) the applicable listing and corporate
governance
rules and regulations of the Nasdaq. GCB DISCLOSURE SCHEDULE
4.12.4 sets forth,
as of August 31, 2007, a schedule of all executive officers and
directors of GCB
who have outstanding loans from GCB or GC Bank, and there has
been no default
on, or forgiveness or waiver of, in whole or in part, any such
loan during the
two years immediately preceding the date hereof.
<PAGE>
4.13. Employee Benefit Plans.
4.13.1. GCB DISCLOSURE SCHEDULE 4.13.1 includes a descriptive
list of all
existing bonus, incentive, deferred compensation, pension,
retirement,
profit-sharing, thrift, savings, employee stock ownership, stock
bonus, stock
purchase, restricted stock, stock option, stock appreciation,
phantom stock,
severance, welfare benefit plans (including paid time off
policies and other
benefit policies and procedures), fringe benefit plans,
employment, severance
and change in control agreements and all other material benefit
practices,
policies and arrangements maintained by GCB or any GCB
Subsidiary in which any
employee or former employee, consultant or former consultant or
director or
former director of GCB or any GCB Subsidiary participates or to
which any such
employee, consultant or director is a party or is otherwise
entitled to receive
benefits (the "GCB Compensation and Benefit Plans"). Except as
set forth in GCB
DISCLOSURE SCHEDULE 4.13.1, neither GCB nor any of its
Subsidiaries has any
commitment to create any additional GCB Compensation and Benefit
Plan or to
materially modify, change or renew any existing GCB Compensation
and Benefit
Plan (any modification or change that increases the cost of such
plans would be
deemed material), except as required to maintain the qualified
status thereof,
GCB has made available to OFC true and correct copies of the GCB
Compensation
and Benefit Plans.
4.13.2. To the Knowledge of GCB and except as disclosed in GCB
DISCLOSURE
SCHEDULE 4.13.2, each GCB Compensation and Benefit Plan has been
operated and
administered in all material respects in accordance with its
terms and with
applicable law, including, but not limited to, ERISA, the Code,
the Securities
Act, the Exchange Act, the Age Discrimination in Employment Act,
COBRA, the
Health Insurance Portability and Accountability Act ("HIPAA")
and any
regulations or rules promulgated thereunder, and all material
filings,
disclosures and notices required by ERISA, the Code, the
Securities Act, the
Exchange Act, the Age Discrimination in Employment Act, COBRA
and HIPAA and any
other applicable law have been timely made or any interest,
fines, penalties or
other impositions for late filings have been paid in full. Each
GCB Compensation
and Benefit Plan which is an "employee pension benefit plan"
within the meaning
of Section 3(2) of ERISA (a "Pension Plan") and which is
intended to be
qualified under Section 401(a) of the Code, is subject of a
"Favorable Letter"
within the meaning of Rev. Proc. 2006-27 Section 5.01, and GCB
is not aware of
any circumstances which are reasonably likely to result in
revocation of any
such Favorable Letter. There is no material pending or, to the
Knowledge of GCB,
threatened action, suit or claim relating to any of the GCB
Compensation and
Benefit Plans (other than routine claims for benefits). Neither
GCB nor any GCB
Subsidiary has engaged in a transaction, or omitted to take any
action, with
respect to any GCB Compensation and Benefit Plan that would
reasonably be
expected to subject GCB or any GCB Subsidiary to an unpaid tax
or penalty
imposed by either Section 4975 of the Code or Section 502 of
ERISA.
4.13.3. Except as set forth in GCB DISCLOSURE SCHEDULE 4.13.3,
no liability
to any Governmental Entity, other than PBGC premiums arising in
the ordinary
course of business, has been or is expected by GCB or any of its
Subsidiaries to
be incurred with respect to any GCB Compensation and Benefit
Plan which is a
defined benefit plan subject to Title IV of ERISA ("Defined
Benefit Plan"), or
with respect to any "single-employer plan" (as defined in
Section 4001(a) of
ERISA) currently or formerly maintained by GCB or any entity
which is considered
one employer with GCB under Section 4001(b)(1) of ERISA or
Section 414 of the
<PAGE>
Code (an "ERISA Affiliate") (such plan hereinafter referred to
as an "ERISA
Affiliate Plan"). Except as set forth in GCB DISCLOSURE SCHEDULE
4.13.3, no GCB
Defined Benefit Plan had an "accumulated funding deficiency" (as
defined in
Section 302 of ERISA), whether or not waived, as of the last day
of the end of
the most recent plan year ending prior to the date hereof.
Except as set forth
in GCB DISCLOSURE SCHEDULE 4.13.3, the fair market value of the
assets of each
GCB Defined Benefit Plan exceeds the present value of the
benefits guaranteed
under Section 4022 of ERISA under such GCB Defined Benefit Plan
as of the end of
the most recent plan year with respect to the respective GCB
Defined Benefit
Plan ending prior to the date hereof, calculated on the basis of
the actuarial
assumptions used in the most recent actuarial valuation for such
GCB Defined
Benefit Plan as of the date hereof; and no notice of a
"reportable event" (as
defined in Section 4043 of ERISA) for which the 30-day reporting
requirement has
not been waived has been required to be filed for any GCB
Defined Benefit Plan
within the 12-month period ending on the date hereof. Neither
GCB nor any of its
Subsidiaries has provided, or is required to provide, security
to any GCB
Defined Benefit Plan or to any si
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