On August 7, 2016,
EverBank Financial Corp (which we refer to as the Company) and Teachers Insurance and Annuity Association of America (which we refer to as TIAA) entered into an Agreement and Plan of Merger (which we refer to as the
merger agreement) that provides for TIAA to acquire the Company. Under the merger agreement, Dolphin Sub Corporation, a wholly owned subsidiary of TIAA, will merge with and into the Company (which we refer to as the merger),
so that the Company is the surviving corporation in the merger and a wholly owned subsidiary of TIAA. Thereafter, through one or more transactions, TIAA-CREF Trust Company, FSB, a federal savings association and wholly owned subsidiary of TIAA, will
merge with and into EverBank, a federal savings association and wholly owned subsidiary of the Company (which we refer to as the bank merger), so that EverBank is the surviving company in the bank merger. As part of the bank merger,
TIAAs existing banking business and the Companys operations will be combined to form a full-service banking company uniquely positioned to help both companies customers succeed.
In the merger, each share of the Companys common stock, par value $0.01 per share (which we refer to as Company common stock
and holders of which we refer to as Company common stockholders), issued and outstanding immediately prior to the effective time of the merger (except for specified shares of Company common stock held by the Company, TIAA and their
respective subsidiaries and shares of Company common stock held by stockholders who properly exercise dissenters rights) will be automatically converted into the right to receive $19.50 in cash without interest (which we refer to as the
merger consideration). The merger consideration represents a premium of approximately 4.6% over $18.64, the closing price of Company common stock on The New York Stock Exchange (which we refer to as the NYSE) on August 5,
2016, the last trading day prior to the public announcement of the merger agreement, a premium of approximately 25.8% over $15.50, the closing price of Company common stock on the NYSE on July 22, 2016, the last trading day prior to the date on
which a news organization reported publicly that the Company was exploring a sale, and a premium of approximately 30.1% over $14.99, the Companys one-month volume-weighted average trading price for the trading period beginning June 23, 2016
and ended July 22, 2016. On [ ], the most recent practicable date before this proxy statement was mailed to our stockholders, the closing price for Company common stock on the
NYSE was $[ ] per share.
We urge you to obtain current market quotations for EverBank Financial Corp (trading symbol EVER).
In addition, each share of the Companys Series A 6.75% Non-Cumulative Perpetual Preferred Stock, par value $0.01 per share (which we
refer to as Company preferred stock and which trade in the form of depositary shares that each represents a 1/1000th interest in a share of Company preferred stock, which we refer to as Company depositary shares), issued and
outstanding immediately prior to the effective time of the merger (except for specified shares of Company preferred stock held by the Company, TIAA and their respective subsidiaries and shares of Company preferred stock held by stockholders who
properly exercise dissenters rights) will be converted into the right to receive $25,000 plus accrued and unpaid dividends on a share of Company preferred stock since the last dividend payment date for the Company preferred stock to but
excluding the closing date of the merger less any dividends declared but unpaid, if any, through the effective time of the merger, in cash without interest (which we refer to as the preferred stock consideration). If the merger is
completed, holders of Company depositary shares will be entitled to receive 1/1000th of the preferred stock consideration for each Company depositary share they hold immediately prior to the merger.
As a condition and inducement to the willingness of TIAA to enter into the merger agreement,
concurrently with the execution and delivery of the merger agreement, TIAA entered into voting and support agreements with certain stockholders, directors and executive officers of the Company, who collectively owned
[ ] shares of Company common stock as of the record date, representing approximately [ ]% of the outstanding Company common stock as of the record date, in
their capacity as stockholders of the Company. The voting agreements require such stockholders to, among other things, vote all of their Company common stock in favor of adoption of the merger agreement.
The Company will hold a special meeting of its stockholders (which we refer to as the special meeting) in connection with the
merger. Company common stockholders will be asked to vote to adopt the merger agreement and approve related matters, as described in the attached proxy statement. Adoption of the merger agreement requires the affirmative vote of the holders of a
majority of the outstanding shares of Company common stock.
Holders of Company preferred stock and holders of Company depositary shares
are not entitled to vote at the special meeting in such capacity.
The special meeting will be held on
[ ], at [ ], local time, at the EverBank Center Auditorium, 301 W. Bay Street, Jacksonville, FL 32202.
The accompanying proxy statement provides detailed
information about the special meeting, the merger, the merger agreement, the documents related to the merger and other related matters.
Please carefully read the entire proxy statement for discussions of the risks relating to the proposed
merger.
You can also obtain information about the Company from documents that the Company has filed with the Securities and Exchange Commission.
On behalf of the board of directors of the Company, thank you for your cooperation and continued support of the Company.
Robert M. Clements
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved the merger, passed upon the
merits or fairness of the merger agreement or the transactions contemplated thereby or passed upon the adequacy or accuracy of the disclosure in this proxy statement. Any representation to the contrary is a criminal offense.
The date of this proxy statement is [ ] and it is first being mailed or
otherwise delivered to the Companys stockholders on or about [ ].
STOCKHOLDER PROPOSALS
If the merger is consummated, we will not have public stockholders and there will be no public participation in any future meeting of
stockholders. However, if the merger is not completed prior to our 2017 annual meeting of stockholders (which we refer to as an annual meeting), we expect to hold a 2017 annual meeting and will provide notice of or otherwise publicly
disclose the date on which such meeting will be held. If we have public stockholders at the time of our 2017 annual meeting, the following deadlines apply to the submission of stockholder proposals.
Any stockholder who meets the requirements of the proxy rules under the Exchange Act may submit to the Company board proposals to be
considered for submission to the stockholders at, and included in the proxy materials for, our 2017 annual meeting. To be considered for inclusion in the proxy statement for the 2017 annual meeting, stockholder proposals, submitted in accordance
with the SECs Rule 14a-8, must be received by the Companys Corporate Secretary, at the Companys principal office at 501 Riverside Ave., Jacksonville, FL 32202, no later than December 7, 2016.
88
The Company bylaws provide an advance notice procedure for a stockholder to properly bring
business before an annual meeting or to nominate any person for election to the Company board. The stockholder must give advance written notice to the Companys Corporate Secretary no later than February 18, 2017 nor earlier than January 19,
2017, that is, a date that is not less than 90 nor more than 120 days prior to the anniversary of the date of the 2016 annual meeting, provided, however, that in the event the Companys 2017 annual meeting is called for a date that is not
within 25 days before or after the anniversary date of the 2016 annual meeting, notice by the stockholder in order to be timely must be so received not later than the close of business on the tenth day following the day on which such notice of the
date of the annual meeting was mailed or such public disclosure of the date of the annual meeting was made, whichever first occurs.
WHERE YOU CAN FIND MORE INFORMATION
The Company files annual, quarterly and current reports, proxy statements and other
information with the SEC under the Exchange Act. You may read and copy any reports, proxy statements or other information on file at the SECs Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1 (800)
SEC-0330 for further information regarding its public facilities. The Companys SEC filings are available to the public from commercial document retrieval services and also available at the Internet website maintained by the SEC at
https://www.sec.gov. You may also retrieve the Companys SEC filings at its Internet website at http://www.everbank.com under the heading Investors, and then under the heading Investor Relations and then under the
heading SEC Filings. The information contained on our Internet website, or any other Internet site described herein, is not a part of, and is not incorporated or deemed to be incorporated by reference in, this proxy statement.
Statements contained in this proxy statement, or in any document incorporated by reference in this proxy statement regarding the contents of
any contract or other document, are not necessarily complete and each such statement is qualified in its entirety by reference to that contract or other document filed as an exhibit with the SEC. The SECs rules allow the Company to
incorporate by reference information into this proxy statement, which means that we can disclose important information to you by referring you to another document filed separately with the SEC. The information incorporated by reference
is deemed to be part of this proxy statement from the date those documents are filed, except for any information superseded by information contained directly in this proxy statement. The Company has filed the documents listed below with the SEC
under the Exchange Act, and these documents are incorporated herein by reference (other than information in such documents that is furnished and not deemed to be filed):
|
|
|
Annual Report on Form 10-K for the year ended December 31, 2015, filed with the SEC on February 19, 2016;
|
|
|
|
Quarterly Reports on Form 10-Q for the quarters ended March 31, 2016 and June 30, 2016, filed with the SEC on April 27, 2016 and July 26, 2016, respectively; and
|
|
|
|
Current Reports on Form 8-K, filed with the SEC on January 5, 2016, January 27, 2016, February 11, 2016, March 10, 2016, March 14, 2016, April 6, 2016, April 27, 2016, May 5, 2016, May 23, 2016, July 26, 2016,
August 8, 2016 and September 7, 2016.
|
All documents that the Company files pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act from the date of this proxy statement to the date on which the special meeting is held, including any adjournments or postponements (other than information in such documents that is furnished and not deemed to be filed) shall also
be deemed to be incorporated by reference into this proxy statement from the date of filing of those documents.
89
You may obtain any of the documents incorporated by reference from the SECs Internet
website described above. Documents incorporated by reference in this proxy statement are also available from the Company without charge, excluding all exhibits unless specifically incorporated by reference in such documents. Stockholders may obtain
documents incorporated by reference in this proxy statement by requesting them in writing or by telephone from the Company at the following address:
EverBank Financial Corp
501
Riverside Ave.
Jacksonville, FL 32202
Telephone: (904) 281-6000
Attn:
Corporate Secretary
If you would like to request documents, please do so by
[ ] to receive them before the special meeting. If you request any incorporated documents, the Company undertakes to mail them to you by first-class mail, or another equally
prompt means, within one business day of receipt of your request.
You should rely only on the information contained in this proxy
statement, including the annexes attached hereto or the information incorporated by reference herein, to vote your Company common stock at the special meeting. The Company has not authorized anyone to provide you with information that differs from
that contained in this proxy statement. Therefore, if anyone does give you information of this sort, you should not rely on it. This proxy statement is dated
[ ]. You should not assume that the information contained in this proxy statement is accurate as of any date other than that date,
and the mailing of this proxy statement to stockholders will not create any implication to the contrary.
THIS PROXY STATEMENT DOES NOT
CONSTITUTE THE SOLICITATION OF A PROXY IN ANY JURISDICTION TO OR FROM ANY PERSON TO WHOM OR FROM WHOM IT IS UNLAWFUL TO MAKE SUCH PROXY SOLICITATION IN THAT JURISDICTION. YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED OR INCORPORATED BY REFERENCE
IN THIS PROXY STATEMENT TO VOTE YOUR SHARES AT THE SPECIAL MEETING.
90
Annex A
EXECUTION VERSION
AGREEMENT AND PLAN OF MERGER
by
and among
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA,
TCT HOLDINGS, INC.,
DOLPHIN SUB
CORPORATION
and
EVERBANK
FINANCIAL CORP
Dated as of August 7, 2016
TABLE OF CONTENTS
|
|
|
|
|
|
|
ARTICLE I
|
|
|
|
THE MERGER
|
|
|
A-2
|
|
|
|
|
1.1
|
|
The Merger
|
|
|
A-2
|
|
1.2
|
|
Closing
|
|
|
A-2
|
|
1.3
|
|
Effective Time
|
|
|
A-2
|
|
1.4
|
|
Effects of the Merger
|
|
|
A-2
|
|
1.5
|
|
Conversion of Company Stock
|
|
|
A-2
|
|
1.6
|
|
Parent Common Stock
|
|
|
A-4
|
|
1.7
|
|
Owner Common Stock
|
|
|
A-4
|
|
1.8
|
|
Merger Sub Common Stock
|
|
|
A-4
|
|
1.9
|
|
Treatment of Company Equity Awards
|
|
|
A-4
|
|
1.10
|
|
Certificate of Incorporation of Surviving Corporation
|
|
|
A-5
|
|
1.11
|
|
Bylaws of Surviving Corporation
|
|
|
A-5
|
|
1.12
|
|
Holdco Merger
|
|
|
A-6
|
|
1.13
|
|
Bank Merger
|
|
|
A-6
|
|
|
ARTICLE II
|
|
|
|
EXCHANGE OF CERTIFICATES AND PAYMENT OF COMPANY EQUITY AWARDS
|
|
|
A-6
|
|
|
|
|
2.1
|
|
Parent to Make Merger Consideration and Preferred Stock Consideration Available
|
|
|
A-6
|
|
2.2
|
|
Delivery of Merger Consideration and Preferred Stock Consideration
|
|
|
A-6
|
|
2.3
|
|
Payment of Company Equity Awards
|
|
|
A-8
|
|
2.4
|
|
Dissenting Shares
|
|
|
A-8
|
|
|
ARTICLE III
|
|
|
|
REPRESENTATIONS AND WARRANTIES OF COMPANY
|
|
|
A-9
|
|
|
|
|
3.1
|
|
Corporate Organization
|
|
|
A-9
|
|
3.2
|
|
Capitalization
|
|
|
A-11
|
|
3.3
|
|
Authority; No Violation
|
|
|
A-12
|
|
3.4
|
|
Consents and Approvals
|
|
|
A-13
|
|
3.5
|
|
Reports
|
|
|
A-14
|
|
3.6
|
|
Financial Statements
|
|
|
A-15
|
|
3.7
|
|
Brokers Fees
|
|
|
A-17
|
|
3.8
|
|
Absence of Certain Changes or Events
|
|
|
A-17
|
|
3.9
|
|
Legal Proceedings
|
|
|
A-17
|
|
3.10
|
|
Taxes and Tax Returns
|
|
|
A-17
|
|
3.11
|
|
Employees and Employee Benefit Plans
|
|
|
A-19
|
|
3.12
|
|
Compliance with Applicable Law
|
|
|
A-22
|
|
3.13
|
|
Certain Contracts
|
|
|
A-24
|
|
A-i
|
|
|
|
|
|
|
3.14
|
|
Agreements with Regulatory Agencies
|
|
|
A-25
|
|
3.15
|
|
Risk Management Instruments
|
|
|
A-25
|
|
3.16
|
|
Environmental Matters
|
|
|
A-26
|
|
3.17
|
|
Investment Securities and Commodities.
|
|
|
A-27
|
|
3.18
|
|
Real Property
|
|
|
A-27
|
|
3.19
|
|
Intellectual Property
|
|
|
A-27
|
|
3.20
|
|
Related Party Transactions
|
|
|
A-28
|
|
3.21
|
|
State Takeover Laws
|
|
|
A-28
|
|
3.22
|
|
Opinion
|
|
|
A-29
|
|
3.23
|
|
Company Information
|
|
|
A-29
|
|
3.24
|
|
Loan Portfolio
|
|
|
A-29
|
|
3.25
|
|
Insurance
|
|
|
A-31
|
|
3.26
|
|
Information Security
|
|
|
A-31
|
|
3.27
|
|
No Other Representations or Warranties
|
|
|
A-31
|
|
|
ARTICLE IV
|
|
|
|
REPRESENTATIONS AND WARRANTIES OF THE PARENT ENTITIES
|
|
|
A-32
|
|
|
|
|
4.1
|
|
Corporate Organization
|
|
|
A-32
|
|
4.2
|
|
Authority; No Violation
|
|
|
A-33
|
|
4.3
|
|
Consents and Approvals
|
|
|
A-34
|
|
4.4
|
|
Reports
|
|
|
A-35
|
|
4.5
|
|
Financial Statements
|
|
|
A-35
|
|
4.6
|
|
Absence of Certain Changes or Events
|
|
|
A-35
|
|
4.7
|
|
Legal Proceedings
|
|
|
A-35
|
|
4.8
|
|
Compliance with Applicable Law
|
|
|
A-36
|
|
4.9
|
|
Agreements with Regulatory Agencies
|
|
|
A-36
|
|
4.10
|
|
Parent Information
|
|
|
A-37
|
|
4.11
|
|
Availability of Funds
|
|
|
A-37
|
|
4.12
|
|
Ownership and Operations of Merger Sub
|
|
|
A-37
|
|
4.13
|
|
Ownership of Shares
|
|
|
A-37
|
|
4.14
|
|
No Interested Stockholder
|
|
|
A-37
|
|
4.15
|
|
No Other Representations or Warranties
|
|
|
A-37
|
|
|
ARTICLE V
|
|
|
|
COVENANTS RELATING TO CONDUCT OF BUSINESS
|
|
|
A-38
|
|
|
|
|
5.1
|
|
Conduct of Business of the Company Prior to the Effective Time
|
|
|
A-38
|
|
5.2
|
|
Company Forbearances
|
|
|
A-39
|
|
5.3
|
|
Parent Entity Forbearances
|
|
|
A-42
|
|
5.4
|
|
Representatives
|
|
|
A-43
|
|
A-ii
|
|
|
|
|
|
|
ARTICLE VI
|
|
|
|
ADDITIONAL AGREEMENTS
|
|
|
A-43
|
|
|
|
|
6.1
|
|
Regulatory Matters
|
|
|
A-43
|
|
6.2
|
|
Access to Information
|
|
|
A-45
|
|
6.3
|
|
Stockholders Approval
|
|
|
A-46
|
|
6.4
|
|
Legal Conditions to Merger
|
|
|
A-48
|
|
6.5
|
|
Employee Benefit Plans
|
|
|
A-48
|
|
6.6
|
|
Indemnification; Directors and Officers Insurance
|
|
|
A-51
|
|
6.7
|
|
Additional Agreements
|
|
|
A-53
|
|
6.8
|
|
Advice of Changes
|
|
|
A-53
|
|
6.9
|
|
Acquisition Proposals
|
|
|
A-54
|
|
6.10
|
|
Public Announcements
|
|
|
A-55
|
|
6.11
|
|
Change of Method
|
|
|
A-55
|
|
6.12
|
|
Restructuring Efforts
|
|
|
A-56
|
|
6.13
|
|
Takeover Statutes
|
|
|
A-56
|
|
6.14
|
|
Rule 16b-3
|
|
|
A-56
|
|
6.15
|
|
Stock Exchange Delisting
|
|
|
A-56
|
|
6.16
|
|
Stockholder Litigation
|
|
|
A-57
|
|
6.17
|
|
Transition
|
|
|
A-57
|
|
6.18
|
|
Employee Cooperation
|
|
|
A-57
|
|
6.19
|
|
Certain Indebtedness
|
|
|
A-58
|
|
|
ARTICLE VII
|
|
|
|
CONDITIONS PRECEDENT
|
|
|
A-58
|
|
|
|
|
7.1
|
|
Conditions to Each Partys Obligation to Effect the Merger
|
|
|
A-58
|
|
7.2
|
|
Conditions to Obligations of the Parent Entities and Merger Sub
|
|
|
A-59
|
|
7.3
|
|
Conditions to Obligations of the Company
|
|
|
A-60
|
|
|
ARTICLE VIII
|
|
|
|
TERMINATION
|
|
|
A-60
|
|
|
|
|
8.1
|
|
Termination
|
|
|
A-60
|
|
8.2
|
|
Effect of Termination
|
|
|
A-62
|
|
|
ARTICLE IX
|
|
|
|
GENERAL PROVISIONS
|
|
|
A-63
|
|
|
|
|
9.1
|
|
Nonsurvival of Representations, Warranties and Agreements
|
|
|
A-63
|
|
9.2
|
|
Amendment
|
|
|
A-64
|
|
9.3
|
|
Extension; Waiver
|
|
|
A-64
|
|
9.4
|
|
Expenses
|
|
|
A-64
|
|
A-iii
|
|
|
|
|
|
|
9.5
|
|
Notices
|
|
|
A-64
|
|
9.6
|
|
Interpretation
|
|
|
A-65
|
|
9.7
|
|
Counterparts
|
|
|
A-66
|
|
9.8
|
|
Entire Agreement
|
|
|
A-66
|
|
9.9
|
|
Governing Law; Jurisdiction
|
|
|
A-66
|
|
9.10
|
|
Waiver of Jury Trial
|
|
|
A-67
|
|
9.11
|
|
Assignment; Third Party Beneficiaries
|
|
|
A-67
|
|
9.12
|
|
Specific Performance
|
|
|
A-67
|
|
9.13
|
|
Severability
|
|
|
A-68
|
|
9.14
|
|
Delivery by Facsimile or Electronic Transmission
|
|
|
A-68
|
|
|
|
|
Exhibit A
|
|
Form of Bank Merger Agreement
|
A-iv
INDEX OF DEFINED TERMS
|
|
|
|
|
|
|
Page
|
|
2016 Bonus Payment Date
|
|
|
A-50
|
|
2016 Bonuses
|
|
|
A-50
|
|
Acquisition Proposal
|
|
|
A-54
|
|
affiliate
|
|
|
A-66
|
|
Agreement
|
|
|
A-1
|
|
Anti-Money Laundering Laws
|
|
|
A-22
|
|
Bank Merger
|
|
|
A-1
|
|
Bank Merger Agreement
|
|
|
A-6
|
|
Bank Merger Certificates
|
|
|
A-6
|
|
BD Compliance Policies
|
|
|
A-24
|
|
Bonus Plans
|
|
|
A-41
|
|
business day
|
|
|
A-66
|
|
Certificate
|
|
|
A-3
|
|
Certificate of Merger
|
|
|
A-2
|
|
CFPB
|
|
|
A-14
|
|
Change in Company Recommendation
|
|
|
A-48
|
|
Chosen Courts
|
|
|
A-67
|
|
Closing
|
|
|
A-2
|
|
Closing Date
|
|
|
A-2
|
|
Code
|
|
|
A-5
|
|
Company
|
|
|
A-1
|
|
Company 401(k) Plan
|
|
|
A-50
|
|
Company Bank
|
|
|
A-1
|
|
Company Benefit Plans
|
|
|
A-19
|
|
Company Broker-Dealer
|
|
|
A-13
|
|
Company Bylaws
|
|
|
A-10
|
|
Company Certificate
|
|
|
A-10
|
|
Company Common Stock
|
|
|
A-2
|
|
Company Compensation Committee
|
|
|
A-5
|
|
Company Contract
|
|
|
A-25
|
|
Company Disclosure Schedule
|
|
|
A-9
|
|
Company Equity Awards
|
|
|
A-5
|
|
Company Indemnified Parties
|
|
|
A-52
|
|
Company Meeting
|
|
|
A-46
|
|
Company Owned Properties
|
|
|
A-27
|
|
Company PBRSU
|
|
|
A-5
|
|
Company Preferred Stock
|
|
|
A-3
|
|
Company Qualified Plans
|
|
|
A-19
|
|
Company Real Property
|
|
|
A-27
|
|
Company Recommendation
|
|
|
A-47
|
|
Company Regulatory Agreement
|
|
|
A-25
|
|
Company Reports
|
|
|
A-14
|
|
Company Representative
|
|
|
A-43
|
|
A-v
|
|
|
|
|
|
|
Page
|
|
Company RSU
|
|
|
A-4
|
|
Company Stock
|
|
|
A-3
|
|
Company Stock Option
|
|
|
A-4
|
|
Company Stock Plans
|
|
|
A-4
|
|
Company Subsidiary
|
|
|
A-10
|
|
Confidentiality Agreement
|
|
|
A-46
|
|
Continuing Employees
|
|
|
A-48
|
|
Debt Tender Offer
|
|
|
A-58
|
|
Delaware Secretary
|
|
|
A-2
|
|
DGCL
|
|
|
A-2
|
|
Dissenting Shares
|
|
|
A-8
|
|
dollars
|
|
|
A-66
|
|
Effective Time
|
|
|
A-2
|
|
Employee Personal Data
|
|
|
A-50
|
|
Enforceability Exceptions
|
|
|
A-13
|
|
Environmental Laws
|
|
|
A-26
|
|
ERISA
|
|
|
A-19
|
|
ERISA Affiliate
|
|
|
A-20
|
|
Exchange Act
|
|
|
A-16
|
|
Exchange Agent
|
|
|
A-6
|
|
Exchange Fund
|
|
|
A-6
|
|
FDIC
|
|
|
A-11
|
|
Federal Reserve Board
|
|
|
A-9
|
|
FINRA
|
|
|
A-13
|
|
GAAP
|
|
|
A-10
|
|
General Account Share
|
|
|
A-2
|
|
Governmental Entity
|
|
|
A-13
|
|
HOLA
|
|
|
A-9
|
|
Holdco Merger
|
|
|
A-1
|
|
Holdco Merger Certificates
|
|
|
A-6
|
|
Indenture
|
|
|
A-58
|
|
Intellectual Property
|
|
|
A-28
|
|
Intervening Event
|
|
|
A-48
|
|
IRS
|
|
|
A-18
|
|
Key Employees
|
|
|
A-57
|
|
knowledge
|
|
|
A-66
|
|
Laws
|
|
|
A-22
|
|
Liens
|
|
|
A-12
|
|
Loan Interests
|
|
|
A-30
|
|
Loans
|
|
|
A-29
|
|
made available
|
|
|
A-66
|
|
Maintenance Period
|
|
|
A-48
|
|
Material Adverse Effect
|
|
|
A-9
|
|
Materially Burdensome Regulatory Condition
|
|
|
A-45
|
|
Merger
|
|
|
A-1
|
|
Merger Consideration
|
|
|
A-2
|
|
A-vi
|
|
|
|
|
|
|
Page
|
|
Merger Sub
|
|
|
A-1
|
|
Merger Sub Bylaws
|
|
|
A-5
|
|
Merger Sub Certificate
|
|
|
A-5
|
|
Merger Sub Common Stock
|
|
|
A-4
|
|
Multiemployer Plan
|
|
|
A-19
|
|
New Plans
|
|
|
A-49
|
|
Notes
|
|
|
A-58
|
|
Notifying Party
|
|
|
A-53
|
|
NYDFS
|
|
|
A-34
|
|
OCC
|
|
|
A-14
|
|
ordinary course of business
|
|
|
A-66
|
|
Owner
|
|
|
A-1
|
|
Owner Bylaws
|
|
|
A-32
|
|
Owner Certificate
|
|
|
A-32
|
|
Parent
|
|
|
A-1
|
|
Parent 401(k) Plan
|
|
|
A-51
|
|
Parent Bank
|
|
|
A-1
|
|
Parent Bylaws
|
|
|
A-32
|
|
Parent Certificate
|
|
|
A-32
|
|
Parent Disclosure Schedule
|
|
|
A-32
|
|
Parent Entities
|
|
|
A-1
|
|
Parent Entity
|
|
|
A-1
|
|
Parent Insurance Subsidiaries
|
|
|
A-37
|
|
Parent Regulatory Agreement
|
|
|
A-36
|
|
Parent Representative
|
|
|
A-43
|
|
Permitted Encumbrances
|
|
|
A-27
|
|
person
|
|
|
A-66
|
|
Preferred Stock Consideration
|
|
|
A-3
|
|
Preliminary 280G Calculations
|
|
|
A-21
|
|
Premium Cap
|
|
|
A-52
|
|
Proxy Statement
|
|
|
A-13
|
|
Regulatory Agencies
|
|
|
A-14
|
|
Related Party Contract
|
|
|
A-28
|
|
Representatives
|
|
|
A-54
|
|
Requisite Company Vote
|
|
|
A-12
|
|
Requisite Regulatory Approvals
|
|
|
A-45
|
|
Sarbanes-Oxley Act
|
|
|
A-15
|
|
SEC
|
|
|
A-13
|
|
Securities Act
|
|
|
A-14
|
|
SRO
|
|
|
A-14
|
|
Subsidiary
|
|
|
A-10
|
|
Superior Proposal
|
|
|
A-55
|
|
Surviving Corporation
|
|
|
A-1
|
|
Takeover Statutes
|
|
|
A-29
|
|
Tax
|
|
|
A-18
|
|
Tax Return
|
|
|
A-19
|
|
A-vii
|
|
|
|
|
|
|
Page
|
|
Taxes
|
|
|
A-18
|
|
Termination Date
|
|
|
A-61
|
|
Termination Fee
|
|
|
A-63
|
|
Transaction Bonus Agreements
|
|
|
A-1
|
|
Ultimate Parent
|
|
|
A-32
|
|
Volcker Rule
|
|
|
A-23
|
|
Voting and Support Agreement
|
|
|
A-1
|
|
A-viii
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of August 7, 2016 (this
Agreement
), by and among Teachers Insurance and Annuity
Association of America, a New York stock life insurance company (
Parent
), TCT Holdings, Inc., a Delaware corporation and a wholly owned Subsidiary of Parent (
Owner
and, together with Parent,
the
Parent Entities
and, each, a
Parent Entity
), Dolphin Sub Corporation, a Delaware corporation and wholly owned subsidiary of Owner (
Merger Sub
), and EverBank Financial Corp, a Delaware
corporation (the
Company
).
W I T N E S S E T H:
WHEREAS, the Boards of Directors of each of the Parent Entities, Merger Sub and the Company have determined that it is in the best interests
of their respective companies and their stockholders to consummate the strategic business combination transactions provided for herein, pursuant to which Merger Sub will, subject to the terms and conditions set forth herein, merge with and into the
Company (the
Merger
), so that the Company is the surviving corporation (hereinafter sometimes referred to in such capacity as the
Surviving Corporation
) in the Merger, and, immediately following the Merger,
Owner will, subject to the terms and conditions set forth herein (including Section 6.11(b)), merge with and into the Surviving Corporation (the
Holdco Merger
), so that the Surviving Corporation is the surviving corporation in the
Holdco Merger (hereinafter sometimes referred to in such capacity also as the Surviving Corporation);
WHEREAS, immediately following the
Holdco Merger (or, if Parent elects not to consummate the Holdco Merger pursuant to Section 6.11(b), immediately following the Merger), TIAA-CREF Trust Company, FSB (
Parent Bank
) will, subject to the terms and conditions set forth
herein and in the Bank Merger Agreement (as defined below), merge with and into EverBank (
Company Bank
) (the
Bank Merger
), so that Company Bank is the surviving company in the Bank Merger;
WHEREAS, concurrently with the execution of this Agreement, Parent is entering into Voting and Support Agreements (each, a
Voting and
Support Agreement
and, collectively, the
Voting and Support Agreements
) with certain directors, executive officers and stockholders of the Company, in each case in the form agreed to by the parties;
WHEREAS, prior to, or contemporaneously with, the execution of this Agreement, Owner has entered into transaction bonus agreements with
certain senior officers of the Company (the
Transaction Bonus Agreements
); and
WHEREAS, the parties desire to make
certain representations, warranties and agreements in connection with the Merger and also to prescribe certain conditions to the Merger.
NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and agreements contained herein, and intending to be
legally bound hereby, the parties agree as follows:
A-1
ARTICLE I
THE MERGER
1.1
The
Merger
. Subject to the terms and conditions of this Agreement, in accordance with the Delaware General Corporation Law (the
DGCL
), at the Effective Time, Merger Sub shall merge with and into the Company. The Company
shall be the Surviving Corporation in the Merger, and shall continue its corporate existence under the laws of the State of Delaware. Upon consummation of the Merger, the separate corporate existence of Merger Sub shall terminate.
1.2
Closing
. Subject to the terms and conditions of this Agreement, the closing of the Merger (the
Closing
)
will take place at 10:00 a.m. New York City time at the offices of Davis Polk & Wardwell LLP, on a date which shall be no later than five (5) business days after the satisfaction or waiver (subject to applicable Law) of the latest to occur
of the conditions set forth in Article VII hereof (other than those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), unless extended by mutual agreement of the parties (the
Closing Date
).
1.3
Effective Time
. The Merger shall become effective as set forth in the certificate of
merger to be filed with the Secretary of State of the State of Delaware (the
Delaware Secretary
) on the Closing Date (the
Certificate of Merger
). The term
Effective Time
shall be the date
and time when the Merger becomes effective, as set forth in the Certificate of Merger.
1.4
Effects of the Merger
. At and after
the Effective Time, the Merger shall have the effects set forth in the applicable provisions of the DGCL.
1.5
Conversion of Company
Stock
. At the Effective Time, by virtue of the Merger and without any action on the part of any of the Parent Entities, Merger Sub, the Company or the holder of any of the following securities:
(a) Subject to Section 2.4, each share of the common stock, par value $0.01 per share, of the Company issued and outstanding
immediately prior to the Effective Time (the
Company Common Stock
), except for shares of Company Common Stock owned by the Company as treasury stock, owned by any Subsidiary of the Company or owned by Parent or any Subsidiary of
Parent as a General Account Share (as defined below) (in each case other than shares held in managed accounts, separate accounts, mutual funds and the like, or otherwise held in a fiduciary or agency capacity or as a result of debts previously
contracted) and Dissenting Shares (as defined, and to the extent provided in Section 2.4), shall be converted into the right to receive $19.50 in cash without interest (the
Merger Consideration
). As used herein, the term
General Account Share
means any share of stock that is owned by Parent or any Subsidiary of Parent and is treated as part of Parents general account, but shall not include, for the avoidance of doubt, any shares held in
managed accounts, separate accounts, mutual funds and the like, or otherwise held in a fiduciary or agency capacity or as a result of debts previously contracted.
A-2
(b) Subject to Section 2.4, each share of Series A 6.75% Non-Cumulative Perpetual
Preferred Stock, par value $0.01 per share, of the Company issued and outstanding immediately prior to the Effective Time (the
Company Preferred Stock
), except for shares of Company Preferred Stock owned by the Company as treasury
stock, owned by any Subsidiary of the Company or owned by Parent or any Subsidiary of Parent as a General Account Share (in each case other than shares held in managed accounts, separate accounts, mutual funds and the like, or otherwise held in a
fiduciary or agency capacity or as a result of debts previously contracted) and Dissenting Shares (as defined, and to the extent provided in Section 2.4), shall be converted into the right to receive $25,000 plus accrued and unpaid dividends on a
share of Company Preferred Stock since the last dividend payment date for the Company Preferred Stock to but excluding the Closing Date less any dividends declared but unpaid, if any, through the Effective Time, in cash without interest (the
Preferred Stock Consideration
) (for the avoidance of doubt, the intention of this provision is that the holders of the Company Preferred Stock will receive dividends and a payment pursuant to this Section 1.5(b) that will make
them whole with respect to dividends through the day before the Closing without duplication).
(c) All of the shares of
Company Common Stock and Company Preferred Stock (together, the
Company Stock
) converted into the right to receive the Merger Consideration or the Preferred Stock Consideration pursuant to this Article I shall no longer be
outstanding and shall automatically be cancelled and shall cease to exist as of the Effective Time, and each certificate (each, a
Certificate
,
it
being
understood
that any reference herein to
Certificate
shall be deemed to include as applicable (and as reasonably interpreted by Parent) reference to
book-entry
account arrangements for the ownership of shares of Company Stock)
previously representing any such shares of Company Stock shall thereafter represent only the right to receive the Merger Consideration or the Preferred Stock Consideration, as applicable. Certificates previously representing shares of Company
Stock shall be exchanged for the Merger Consideration or the Preferred Stock Consideration, as applicable, upon the surrender of such Certificates in accordance with Section 2.2, without any interest thereon. If, prior to the Effective Time,
the outstanding shares of Company Common Stock or Company Preferred Stock shall have been increased, decreased, changed into or exchanged for a different number or kind of shares or securities as a result of any reclassification, recapitalization,
reorganization, stock split (including a reverse stock split) or subdivision or combination, exchange or readjustment of shares, or any stock dividend or stock distribution with a record date during such period, merger or other similar change in
capitalization (not including, for the avoidance of doubt, for any such change in the number of outstanding shares of Company Common Stock as a result of exercises of Company Stock Options or the settlement of Company Equity Awards, in each case, in
accordance with their terms), the Merger Consideration and the Preferred Stock Consideration shall be equitably adjusted to reflect such change;
provided
that nothing in this Section 1.5(c) shall be construed to permit the Company to take any
action with respect to its securities that is prohibited by the terms of this Agreement. No interest shall be paid on the Merger Consideration or the Preferred Stock Consideration.
(d) Notwithstanding anything in this Agreement to the contrary, at the Effective Time, all shares of Company Stock that are
owned by the Company as treasury stock, owned by any Subsidiary of the Company or owned by Parent or any Subsidiary of
A-3
Parent as a General Account Share (in each case other than shares held in managed accounts, separate accounts, mutual funds and the like, or otherwise held in a fiduciary or agency capacity or as
a result of debts previously contracted) shall be cancelled and shall cease to exist and no consideration shall be delivered in exchange therefor.
1.6
Parent Common Stock
. At and after the Effective Time, each share of Parent, $1,000 per share, issued and outstanding
immediately prior to the Effective Time shall remain issued and outstanding and shall not be affected by the Merger.
1.7
Owner Common
Stock
. At and after the Effective Time, each share of common stock of Owner, par value $1.00 per share, issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding and shall not be affected by the
Merger.
1.8
Merger Sub Common Stock
. At and after the Effective Time, each share of common stock of Merger Sub, par value
$0.01 per share, issued and outstanding immediately prior to the Effective Time (
Merger Sub Common Stock
) shall be converted into one issued and outstanding share of common stock of the Surviving Corporation.
1.9
Treatment of Company Equity Awards
.
(a) At the Effective Time, each option granted by the Company to purchase shares of Company Common Stock under the Amended and
Restated Company 2011 Omnibus Equity Incentive Plan, the Company 2011 Omnibus Equity Incentive Plan and the First Amended and Restated 2005 Equity Incentive Plan (collectively, the
Company Stock Plans
), whether vested or unvested,
that is outstanding and unexercised immediately prior to the Effective Time (a
Company Stock Option
) shall, automatically and without any required action on the part of the holder thereof, be cancelled and shall entitle the holder
of such Company Stock Option to receive (without interest), as soon as reasonably practicable after the Effective Time (but in any event no later than five (5) business days after the Effective Time), an amount in cash equal to the product of (x)
the number of shares of Company Common Stock subject to such Company Stock Option immediately prior to the Effective Time
multiplied by
(y) the excess, if any, of (A) the Merger Consideration over (B) the exercise price per share of
Company Common Stock of such Company Stock Option, less applicable Taxes required to be withheld with respect to such payment. For the avoidance of doubt, any Company Stock Option which has an exercise price per share of Company Common Stock
that is greater than or equal to the Merger Consideration shall be cancelled at the Effective Time for no consideration or payment.
(b) At the Effective Time, (A) any vesting conditions applicable to each outstanding restricted stock unit subject only to
service-based vesting conditions (a
Company RSU
) under the Company Stock Plans, shall, automatically and without any required action on the part of the holder thereof, accelerate in full, and (B) each Company RSU shall,
automatically and without any required action on the part of the holder thereof, be cancelled and shall entitle the holder of such Company RSU to receive (without interest), as soon as reasonably practicable after the Effective Time (but in any
event no later than five (5) business days after the Effective Time), an amount in cash equal to (x) the number of shares of Company Common Stock subject to such Company RSU immediately prior to the Effective
A-4
Time
multiplied by
(y) the Merger Consideration, less applicable Taxes required to be withheld with respect to such payment;
provided
, that, with respect to any Company RSUs that
constitute nonqualified deferred compensation subject to section 409A of the Internal Revenue Code of 1986 (the
Code
) and that are not permitted to be paid at the Effective Time without triggering a Tax or penalty under section
409A of the Code, such payment shall be made at the earliest time permitted under the applicable Company Stock Plan and award agreement that will not trigger a Tax or penalty under section 409A of the Code.
(c) At the Effective Time, (A) any vesting conditions applicable to each outstanding restricted stock unit subject to
performance-based vesting conditions (a
Company PBRSU
) under the Company Stock Plans, whether vested or unvested, shall, automatically and without any required action on the part of the holder thereof, accelerate as provided
herein, and (B) each Company PBRSU shall, automatically and without any required action on the part of the holder thereof, be cancelled and shall entitle the holder of such Company PBRSU to receive (without interest), as soon as reasonably
practicable after the Effective Time (but in any event no later than five (5) business days after the Effective Time), an amount in cash equal to (x) the number of shares of Company Common Stock subject to such Company PBRSU immediately prior to the
Effective Time based on target performance as of the Effective Time as reasonably determined by the compensation committee of the Board of Directors of the Company (the
Company Compensation Committee
) pursuant to the terms of such
award
multiplied by
(y) the Merger Consideration, less applicable Taxes required to be withheld with respect to such payment;
provided
, that, with respect to any Company PBRSUs that constitute nonqualified deferred compensation subject
to section 409A of the Code and that are not permitted to be paid at the Effective Time without triggering a Tax or penalty under section 409A of the Code, such payment shall be made at the earliest time permitted under the applicable Company Stock
Plan and award agreement that will not trigger a Tax or penalty under section 409A of the Code.
(d) At or prior to the
Effective Time, the Company, the Board of Directors of the Company and the Compensation Committee, as applicable, shall adopt any resolutions and take any actions that are necessary to effectuate the treatment of the Company Stock Options, Company
RSUs and Company PBRSUs (collectively, the
Company Equity Awards
) pursuant to this Section 1.9. The Company shall take all actions necessary to ensure that from and after the Effective Time neither Parent nor the
Surviving Corporation will be required to deliver shares of Company Common Stock or other capital stock of the Company to any person pursuant to or in settlement of Company Equity Awards.
1.10
Certificate of Incorporation of Surviving Corporation
. At the Effective Time, the certificate of incorporation of Merger Sub
(
Merger Sub Certificate
), as in effect at the Effective Time, shall be the certificate of incorporation of the Surviving Corporation until thereafter amended in accordance with applicable Law, except that references to the name of
Merger Sub shall be replaced by TIAA FSB Holdings, Inc.
1.11
Bylaws of Surviving Corporation
. At the Effective
Time, the bylaws of Merger Sub (
Merger Sub Bylaws
), as in effect immediately prior to the Effective Time, shall be the bylaws of the Surviving Corporation until thereafter amended in accordance with applicable Law, except that
references to the name of Merger Sub shall be replaced by TIAA
A-5
FSB Holdings, Inc.
1.12
Holdco Merger
. Subject to Section
6.11(b), immediately following the Effective Time, Owner and the Surviving Corporation will enter into an agreement and plan of merger pursuant to which, immediately following the execution and approval thereof, Owner will merge with and into the
Surviving Corporation. Subject to Section 6.11(b), the Surviving Corporation shall be the surviving entity in the Holdco Merger and, following the Holdco Merger, the separate corporate existence of Owner shall cease. The Surviving
Corporation and Owner shall execute or cause the execution of such certificates of merger and articles of combination and such other documents and certificates as are necessary to make the Holdco Merger effective (
Holdco Merger
Certificates
) immediately following the Effective Time.
1.13
Bank Merger
. Immediately following the Holdco Merger
(or, if Parent elects not to consummate the Holdco Merger pursuant to Section 6.11(b), immediately following the Merger), Parent Bank will merge with and into Company Bank. Subject to Section 6.11(b), Company Bank shall be the surviving entity
in the Bank Merger and, following the Bank Merger, the separate corporate existence of Parent Bank shall cease. The parties agree that the Bank Merger shall become effective immediately following the Holdco Merger (or, if Parent elects not to
consummate the Holdco Merger pursuant to Section 6.11(b), immediately following the Merger). Within thirty (30) days after the date of this Agreement, Parent Bank and Company Bank shall enter into the agreement and plan of merger in the form
attached hereto as
Exhibit A
(the
Bank Merger Agreement
) and (i) the Company shall cause the Bank Merger Agreement to be duly authorized, executed and delivered by Company Bank and (ii) Parent shall cause the Bank
Merger Agreement to be duly authorized, executed and delivered by Parent Bank. The Company shall cause Company Bank, and Parent shall cause Parent Bank, to execute such certificates of merger and articles of combination and such other documents
and certificates as are necessary to make the Bank Merger effective (
Bank Merger Certificates
) immediately following the Holdco Merger (or, if Parent elects not to consummate the Holdco Merger pursuant to Section 6.11(b),
immediately following the Merger). Within thirty (30) days after the date hereof, (i) the Company, in its capacity as sole stockholder of Company Bank, shall approve the Bank Merger Agreement and the Bank Merger and (ii) Owner, in its capacity
as sole stockholder of Parent Bank, shall approve the Bank Merger Agreement and the Bank Merger.
ARTICLE II
EXCHANGE OF CERTIFICATES AND PAYMENT OF COMPANY EQUITY AWARDS
2.1
Parent to Make Merger Consideration and Preferred Stock Consideration Available
. At or prior to the Effective Time, Parent
shall deposit, or shall cause to be deposited, with an exchange agent designated by Parent and reasonably acceptable to the Company (the
Exchange Agent
), for the benefit of the holders of Certificates, for exchange in
accordance with this Article II, an amount in cash sufficient to pay the aggregate Merger Consideration and the aggregate Preferred Stock Consideration (the
Exchange Fund
), to be paid pursuant to Section 2.2(a) in exchange for
outstanding shares of Company Stock.
2.2
Delivery of Merger Consideration and Preferred Stock Consideration
.
A-6
(a) As promptly as practicable after the Effective Time, but in no event later
than five (5) days thereafter, Parent shall cause the Exchange Agent to mail to each holder of record of one or more Certificates representing shares of Company Stock immediately prior to the Effective Time that have been converted at the Effective
Time into the right to receive the Merger Consideration or the Preferred Stock Consideration, as applicable, pursuant to Article I, a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the
Certificates shall pass, only upon proper delivery of the Certificates to the Exchange Agent) and instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration or the Preferred Stock Consideration, as
applicable. Upon proper surrender of a Certificate or Certificates for exchange and cancellation to the Exchange Agent, together with such properly completed letter of transmittal, duly executed, the holder of such Certificate or Certificates
shall be entitled to receive in exchange therefor a check representing the amount of the Merger Consideration or the Preferred Stock Consideration, as applicable, and the Certificate or Certificates so surrendered shall forthwith be
cancelled. No interest will be paid or accrued on any amount payable to holders of Certificates. Until surrendered as contemplated by this Section 2.2, and subject to Section 2.4, each Certificate shall be deemed at any time after the
Effective Time to represent only the right to receive, upon surrender, the Merger Consideration or the Preferred Stock Consideration, as applicable.
(b) In the event of a transfer of ownership of a Certificate representing Company Stock that is not registered in the stock
transfer records of the Company, the proper amount of cash shall be paid to a person other than the person in whose name the Certificate so surrendered is registered if the Certificate formerly representing such Company Stock shall be properly
endorsed or otherwise be in proper form for transfer and the person requesting such payment shall pay any transfer or other similar Taxes required by reason of the payment to a person other than the registered holder of the Certificate or establish
to the satisfaction of Parent that the Tax has been paid or is not applicable.
(c) After the Effective Time, there shall
be no transfers on the stock transfer books of the Company of the shares of Company Stock that were issued and 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 cancelled and exchanged for the Merger Consideration or the Preferred Stock Consideration, as applicable, to be paid in consideration therefor in accordance with the procedures in this
Article II.
(d) Any portion of the Exchange Fund that remains unclaimed by the stockholders of the Company for twelve (12)
months after the Effective Time shall be paid to the Surviving Corporation. Any former stockholders of the Company who have not theretofore complied with this Article II shall thereafter look only to the Surviving Corporation for payment of the
Merger Consideration or the Preferred Stock Consideration, as applicable, without any interest thereon, upon due surrender of their Certificate or Certificates. Notwithstanding the foregoing, none of the Parent Entities, Merger Sub, the
Company, the Surviving Corporation, the Exchange Agent or any other person shall be liable to any former holder of shares of Company Stock for any amount delivered in good faith to a public official pursuant to applicable abandoned property, escheat
or similar Laws.
A-7
(e) Parent shall be entitled to deduct and withhold, or cause the Exchange Agent
to deduct and withhold, from the Merger Consideration, the Preferred Stock Consideration or any other consideration otherwise payable pursuant to this Agreement to any holder of Company Stock, as applicable, such amounts as it is required to deduct
and withhold with respect to the making of such payment under the Code or any provision of state, local or foreign Tax law. To the extent that amounts are so withheld by Parent or the Exchange Agent, as the case may be, and paid over to the
appropriate Governmental Entity, the withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of Company Stock in respect of which the deduction and withholding was made by Parent or the Exchange Agent,
as the case may be.
(f) 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 Parent, the posting by such person of a bond in such amount as Parent may determine is reasonably necessary 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 or the Preferred Stock Consideration, as applicable, pursuant to
this Agreement.
2.3
Payment of Company Equity Awards
. Parent shall take all actions necessary so that, no later than five (5)
business days after the Effective Time, the Surviving Corporation shall pay or cause to be paid to each holder of a Company Equity Award the amounts to which such holder is entitled as determined in accordance with Sections 1.9(a), 1.9(b) and 1.9(c)
through the Surviving Corporations or applicable Company Subsidiarys payroll system, to the extent permitted thereby. In the event that the Surviving Corporation has insufficient cash to make such payment to each holder of Company
Equity Awards, Parent shall pay such amounts or provide to the Surviving Corporation sufficient cash to pay such amounts.
2.4
Dissenting Shares
.
(a) Notwithstanding anything to the contrary set forth in this Agreement, shares of Company
Stock issued and outstanding immediately prior to the Effective Time and held by a holder who has properly exercised appraisal rights in respect of such shares in accordance with Section 262 of the DGCL (such shares being referred to
collectively as the
Dissenting Shares
until such time as such holder fails to perfect, withdraws or otherwise loses such holders appraisal rights under applicable Law with respect to such shares) shall not be converted into
a right to receive the Merger Consideration or the Preferred Stock Consideration, as applicable, but instead shall be entitled to payment of such consideration as may be determined to be due in accordance with Section 262 of the DGCL;
provided
,
however
, that if, after the Effective Time, such holder fails to perfect, withdraws or otherwise loses such holders right to appraisal pursuant to Section 262 of the DGCL, or if a court of competent jurisdiction
shall determine that such holder is not entitled to the relief provided by Section 262 of the DGCL, such shares of Company Stock shall be treated as if they had been converted as of the Effective Time into the right to receive the Merger
Consideration or the Preferred Stock Consideration, as applicable, in accordance with Section 1.5 upon surrender of such shares of Company Stock.
A-8
(b) The Company shall give prompt notice to Parent of any demands received by the
Company for appraisal, of any withdrawals of such demands and of any other instruments served pursuant to the DGCL and received by the Company relating to Section 262 of the DGCL, and Parent shall direct all negotiations and proceedings with
respect to such demands. Prior to the Effective Time, the Company shall not, without the prior written consent of Parent, make any payment with respect to, or settle or compromise or offer to settle or compromise, any such demand, or agree to
any such appraisal demands.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF COMPANY
Except (a) as disclosed in the disclosure schedule delivered by the Company to Parent concurrently herewith (the
Company Disclosure
Schedule
);
provided
, that (i) no such item is required to be set forth as an exception to a representation or warranty if its absence would not result in the related representation or warranty being deemed untrue or incorrect, (ii)
the mere inclusion of an item in the Company Disclosure Schedule as an exception to a representation or warranty shall not be deemed an admission by the Company that such item represents a material exception or fact, event or circumstance or that
such item is reasonably likely to result in a Material Adverse Effect on the Company and (iii) any disclosures made with respect to a section of this Article III shall be deemed to qualify (1) any other section of this Article III
specifically referenced or cross-referenced therein and (2) other sections of this Article III to the extent it is reasonably apparent on its face (notwithstanding the absence of a specific cross reference) from reading only the disclosure that such
disclosure applies to such other sections or (b) as disclosed in any Company Reports filed by the Company after January 1, 2015 and prior to the date hereof (but disregarding any exhibits to any filed Company Reports or risk factor disclosures
contained under the heading Risk Factors, or disclosures of risks set forth in any forward-looking statements disclaimer or any other statements that are similarly non-specific or cautionary, predictive or forward-looking in
nature), the Company hereby represents and warrants to each of the Parent Entities as follows:
3.1
Corporate Organization
.
(a) The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware,
is a savings and loan holding company within the meaning of the Home Owners Loan Act of 1933 (the
HOLA
) and is duly registered with the Board of Governors of the Federal Reserve System (the
Federal Reserve
Board
). The Company has the corporate power and authority to own or lease all of its properties and assets and to carry on its business as it is now being conducted. The Company is duly licensed or qualified to do business in
each jurisdiction in which the nature of the business conducted by it or the character or location of the properties and assets owned or leased by it makes such licensing or qualification necessary, except where the failure to be so licensed or
qualified would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on the Company. As used in this Agreement, the term
Material Adverse Effect
means, with respect to Parent,
the Company or the Surviving Corporation, as the case may be, a material adverse effect on (i) the business, properties, assets, liabilities, results of operations or condition (financial or otherwise) of such party and
A-9
its Subsidiaries, taken as a whole (
provided
, that, with respect to this clause (i), Material Adverse Effect shall not be deemed to include the impact of (A) changes, after the date
hereof, in U.S. generally accepted accounting principles (
GAAP
) or applicable regulatory accounting requirements, (B) changes, after the date hereof, in Laws of general applicability to companies in the industries in which such
party and its Subsidiaries operate, or interpretations thereof by courts or Governmental Entities, (C) changes, after the date hereof, in global, national or regional political conditions (including the outbreak of war or acts of terrorism) or in
economic or market (including equity, credit and debt markets, as well as changes in interest rates) conditions affecting the financial services industry generally and not specifically relating to such party or its Subsidiaries, (D) public
disclosure of the execution of this Agreement, public disclosure or consummation of the transactions contemplated hereby (including any effect on a partys relationships with its customers or employees) or actions expressly required by this
Agreement (excluding the obligations with respect to the Company and its Subsidiaries operating in the ordinary course of business) in contemplation of the transactions contemplated hereby (
it
being
understood
that, for purposes
of Section 3.3(b) and Section 7.2(a) (to the extent relating to Section 3.3(b)), the exceptions set forth in this clause (D) shall not apply in determining whether a Material Adverse Effect has occurred), (E) a decline, in and of itself, in the
trading price of the Companys common stock or the failure, in and of itself, to meet earnings projections or internal financial forecasts (
it
being
understood
that the underlying cause of such decline or failure may be
taken into account in determining whether a Material Adverse Effect has occurred) or (F) the reasonable and customary expenses incurred by the Company or the Parent Entities in negotiating, documenting, effecting and consummating the transactions
contemplated by this Agreement; except, with respect to subclause (A), (B), or (C), to the extent that the effects of such change are disproportionately adverse to the business, properties, assets, liabilities, results of operations or condition
(financial or otherwise) of such party and its Subsidiaries, taken as a whole, as compared to other companies in the industry in which such party and its Subsidiaries operate), or (ii) the ability of such party or any Subsidiary of such party to
timely consummate the transactions contemplated hereby. As used in this Agreement, the word
Subsidiary
shall have the meaning ascribed to it in Section 10(a)(1)(G) of HOLA. True and complete copies of the amended and
restated certificate of incorporation of the Company (the
Company Certificate
) and the amended and restated bylaws of the Company (the
Company Bylaws
), as in effect as of the date of this Agreement, have
previously been made available by the Company to Parent, and the Company is not in violation of its organizational or governing documents, including the Company Certificate and Company Bylaws.
(b) Each Subsidiary of the Company (a
Company Subsidiary
) (i) is duly organized and validly existing under
the laws of its jurisdiction of organization, (ii) is duly qualified to do business and, where such concept is recognized under applicable Law, in good standing in all jurisdictions (whether federal, state, local or foreign) where its ownership or
leasing of property or the conduct of its business requires it to be so qualified and in which the failure to be so qualified would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on the Company and
(iii) has all requisite corporate power and authority to own or lease its properties and assets and to carry on its business as now conducted. There are no restrictions on the ability of any Company Subsidiary to pay dividends or distributions
except, in the case of a Company Subsidiary that is a regulated entity, for restrictions on dividends or distributions generally applicable to all such regulated
A-10
entities. The deposit accounts of Company Bank are insured by the Federal Deposit Insurance Corporation (the
FDIC
) through the Deposit Insurance Fund to the fullest extent
permitted by Law, all premiums and assessments required to be paid in connection therewith have been paid when due, and no proceedings for the termination of such insurance are pending or threatened. Section 3.1(b) of the Company Disclosure
Schedule sets forth a true and complete list of (x) all Subsidiaries of the Company as of the date hereof and (y) all persons (not including the Company Subsidiaries) in which the Company, together with any Company Subsidiaries, owns (directly or
indirectly) 5% or more of a class of voting securities.
3.2
Capitalization
.
(a) The authorized capital stock of the Company consists of 500,000,000 shares of Company Common Stock, par value $0.01 per
share, and 10,000,000 shares of Company Preferred Stock. As of the date hereof, there are (i) 125,325,210 shares of Company Common Stock issued and outstanding (which, for the avoidance of doubt, do not include shares held in
treasury), (ii) 6,000 shares of Company Preferred Stock issued and outstanding, (iii) zero shares of Company Common Stock held in treasury, (iv) 8,045,914 shares of Company Common Stock reserved for issuance upon the
exercise of outstanding Company Stock Options, (v) 931,264 shares of Company Common Stock reserved for issuance upon the settlement of outstanding Company RSUs, (vi) 271,701 shares of Company Common Stock reserved for issuance upon
the settlement of outstanding Company PBRSUs (assuming achievement of any applicable performance goals at the target level) and (vii) no other shares of capital stock or other voting securities of the Company issued, reserved for issuance or
outstanding. All the issued and outstanding shares of Company Common Stock have been duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights, with no personal liability attaching to the ownership
thereof. There are no bonds, debentures, notes or other indebtedness that have the right to vote on any matters on which stockholders of the Company may vote. Except as set forth in Section 3.2(a) of the Company Disclosure Schedule, no
trust preferred or subordinated debt securities of the Company or any Company Subsidiary are issued or outstanding. Other than the Company Equity Awards, there are no outstanding subscriptions, options, warrants, puts, calls, rights,
exchangeable or convertible securities or other commitments or agreements obligating the Company or any Company Subsidiary to issue, transfer, sell, purchase, redeem or otherwise acquire, any such securities. There are no voting trusts,
stockholder agreements, proxies or other agreements in effect with respect to the voting or transfer of the Company Common Stock or other equity interests of the Company. Each grant of a Company Equity Award was duly authorized no later than
the grant date of such award by all necessary corporate action, including, as applicable, approval by the Board of Directors of the Company (or a duly constituted and authorized committee thereof) and any required stockholder approval by the
necessary number of votes. Each such grant was made under a Company Stock Plan and in all material respects in accordance with the terms of the applicable Company Stock Plan, the Exchange Act and all other applicable Laws, including the rules
of the New York Stock Exchange. Each grant of a Company Equity Award was properly accounted for in accordance with GAAP in the financial statements (including the related notes) of the Company and disclosed in the Company Reports in accordance
with the Exchange Act and all other applicable Laws. No Company Subsidiary owns any shares of Company Common Stock (other than shares held in managed accounts, separate accounts,
A-11
mutual funds and the like, or otherwise held in a fiduciary or agency capacity or as a result of debts previously contracted).
(b) The Company owns, directly or indirectly, all of the issued and outstanding shares of capital stock or other equity
ownership interests of each of the Company Subsidiaries, free and clear of any liens, pledges, charges, encumbrances and security interests whatsoever (
Liens
), and all of such shares or equity ownership interests are duly
authorized and validly issued and are fully paid, nonassessable and free of preemptive rights, with no personal liability attaching to the ownership thereof. Neither the Company nor any Company Subsidiary has or is bound by any outstanding
subscriptions, options, warrants, calls, rights, commitments or agreements of any character calling for the purchase or issuance of any shares of capital stock or any other equity security of any Company Subsidiary or any securities representing the
right to purchase or otherwise receive any shares of capital stock or any other equity security of any Company Subsidiary.
(c) Section 3.2(c) of the Company Disclosure Schedule sets forth, as of the date hereof, a true, correct and complete list
of all Company Stock Options, Company RSUs and Company PBRSUs outstanding as of the date hereof specifying, on a holder-by-holder basis, (i) the name of each holder, (ii) the number of shares subject to each such Company Equity Award
(assuming achievement of any applicable performance goals at the target and maximum levels, respectively), (iii) the grant date of each such Company Equity Award, (iv) the vesting schedule for each such Company Equity Award and (v) the
exercise price for each such Company Stock Option.
3.3
Authority; No Violation
.
(a) The Company has full corporate power and authority to execute and deliver this Agreement and, subject to the stockholder
and other actions described below, to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated hereby have been duly, validly and
unanimously approved by the Board of Directors of the Company. The Board of Directors of the Company has unanimously (i) determined that the Merger, on the terms and conditions set forth in this Agreement, is fair to and in the best interests
of the Company and its stockholders and (ii) directed that this Agreement and the transactions contemplated hereby be submitted to the Companys stockholders for adoption at a meeting of such stockholders and (iii) subject to the provisions
hereof, resolved to recommend that this Agreement be adopted by the Companys stockholders at such meeting and has adopted a resolution to the foregoing effect. Except for (i) the adoption of this Agreement by the affirmative vote of the
holders of a majority of the outstanding shares of Company Common Stock (the
Requisite Company Vote
), (ii) the approval of the Bank Merger Agreement by the Board of Directors of Company Bank and the adoption and approval of the
Bank Merger Agreement by the Company as its sole stockholder and (iii) approvals by the Board of Directors of the Company and its stockholders with respect to the Holdco Merger, no other corporate proceedings (including approval of stockholders) on
the part of the Company or any Company Subsidiary are necessary to approve this Agreement or to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by the Company and (assuming due
authorization, execution
A-12
and delivery by each of the Parent Entities and Merger Sub) constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms (except in all
cases as such enforceability may be limited by bankruptcy, insolvency, moratorium, reorganization or similar Laws affecting the rights of creditors generally and the availability of equitable remedies (the
Enforceability
Exceptions
)).
(b) Neither the execution and delivery of this Agreement by the Company, nor the consummation by
the Company or any of its Subsidiaries of the transactions contemplated hereby, including the Bank Merger and the Holdco Merger, nor compliance by the Company with any of the terms or provisions hereof, will (i) violate any provision of the Company
Certificate or the Company Bylaws or any of the organizational or governing documents of any Company Subsidiary or (ii) assuming that the consents and approvals referred to in Section 3.4 are duly obtained, (x) violate any Law applicable to the
Company or any of its Subsidiaries or any of their respective properties or assets or (y) violate, conflict with, result in a breach of any provision of or the loss of any benefit under, 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 or a right of termination or cancellation under, accelerate the performance required by, or result in the creation of any Lien upon any of the respective properties or
assets of the Company or any of its Subsidiaries under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, deed of trust, license, lease, agreement or other instrument or obligation to which the Company or any of its
Subsidiaries is a party, or by which they or any of their respective properties or assets may be bound, except (in the case of clause (y) above) for such violations, conflicts, breaches or defaults which would not reasonably be expected to have,
either individually or in the aggregate, a Material Adverse Effect on the Company.
3.4
Consents and Approvals
. Except for (a)
the filing with the Securities and Exchange Commission (the
SEC
) of a proxy statement in preliminary and definitive form relating to the meeting of the Companys stockholders to be held in connection with this Agreement and
the transactions contemplated hereby (including any amendments or supplements thereto, the
Proxy Statement
), (b) if Company Bank is to be the surviving bank in the Bank Merger, the filing of an application by Company Bank
under the Bank Merger Act and approval of such application, (c) the filing of an amendment to EverBank Wealth Management, Inc.s Form ADV and an amendment to EverTrade Direct Brokerage, Inc.s (
Company
Broker-Dealer
) Form BD filed with the SEC, (d) the filing with the Financial Industry Regulatory Authority (
FINRA
) of an application by Company Broker-Dealer under NASD Rule 1017 and approval of such application, (e) the
filing of the Certificate of Merger with the Delaware Secretary pursuant to the DGCL and the filing of the Bank Merger Certificates and Holdco Merger Certificates, and (f) the filing of any required applications, filings or notices with any
Governmental Entities set forth in Section 3.4 of the Company Disclosure Schedule and the receipt of the necessary approvals and consents referenced therein, no consents or approvals of or filings or registrations with any court, administrative
agency or commission or other governmental authority or instrumentality or SRO (each a
Governmental Entity
) are necessary in connection with (i) the execution and delivery by the Company of this Agreement or (ii) the consummation
by the Company and its Subsidiaries of the Merger and the other transactions contemplated hereby (including the Bank Merger and the Holdco Merger). As of the date hereof, the Company is not aware of any reason why the necessary regulatory
approvals and
A-13
consents will not be received in order to permit consummation of the Merger, the Bank Merger and the Holdco Merger on a timely basis and without the imposition of a Materially Burdensome
Regulatory Condition. Notwithstanding anything in this Agreement to the contrary, to the extent the accuracy of the Companys representations and warranties set forth in this Section 3.4 are based on the accuracy of information provided by
the Parent Entities, the representations and warranties in this Section 3.4 shall be limited to the extent affected by any inaccuracy in such information.
3.5
Reports
.
(a) The Company and each of its Subsidiaries have timely filed (or furnished, as applicable) all reports, registrations,
statements and other documents, together with any amendments required to be made with respect thereto, that they were required to file (or furnish, as applicable) since January 1, 2013 with (i) any state regulatory authority, (ii) the SEC, (iii) the
Federal Reserve Board, (iv) the FDIC, (v) the Office of the Comptroller of the Currency (the
OCC
), (vi) the Consumer Financial Protection Bureau (the
CFPB
), if any, (vii) any foreign regulatory authority and
(viii) any self-regulatory organization (an
SRO
) ((i) (viii), collectively
Regulatory Agencies
), including any report, registration or statement required to be filed (or furnished, as applicable) pursuant
to the Laws of the United States, any state, any foreign entity, or any Regulatory Agency, and have paid all fees and assessments due and payable in connection therewith, except where the failure to file such report, registration or statement or to
pay such fees and assessments would not reasonably be expected to be, either individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole. As of their respective dates (and without giving effect to any
amendments or modifications filed after the date of this Agreement with respect to reports and documents filed before the date of this Agreement), each of such reports and documents, including the financial statements, exhibits and schedules
thereto, complied in all material respects with all of the statutes, rules and regulations enforced or promulgated by the Regulatory Agency with which they were filed. Except as set forth in Section 3.5 of the Company Disclosure Schedule and
for normal examinations conducted by a Regulatory Agency in the ordinary course of business of the Company and its Subsidiaries, (i) no Regulatory Agency has initiated or has pending any proceeding or, to the knowledge of the Company or any of its
Subsidiaries, investigation into the business or operations of the Company or any of its Subsidiaries since January 1, 2013, (ii) there is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any report or
statement relating to any examinations or inspections of the Company or any of its Subsidiaries and (iii) there has been no formal or informal inquiry by, or disagreement or dispute with, any Regulatory Agency with respect to the business,
operations, policies or procedures of the Company or any of its Subsidiaries since January 1, 2013, in each case of clauses (i) through (iii), which would reasonably be expected to be, either individually or in the aggregate, material to the Company
and its Subsidiaries, taken as a whole.
(b) An accurate and complete copy of each final registration statement,
prospectus, report, schedule and definitive proxy statement filed with or furnished to the SEC by the Company since January 1, 2013 pursuant to the Securities Act of 1933 (the
Securities Act
) or the Exchange Act (the
Company Reports
) is publicly available. No such Company Report, as of the date thereof (and, in the case of registration statements and proxy statements,
A-14
on the dates of effectiveness and the dates of the relevant meetings, respectively), contained any untrue statement of a material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the circumstances in which they were made, not misleading, except that information filed or furnished as of a later date (but before the date of this Agreement) shall be
deemed to modify information as of an earlier date. As of their respective dates, all Company Reports filed or furnished under the Securities Act and the Exchange Act complied in all material respects with the published rules and regulations of
the SEC with respect thereto. No executive officer of the Company has failed in any respect to make the certifications required of him or her under Section 302 or 906 of the Sarbanes-Oxley Act of 2002 (the
Sarbanes-Oxley Act
)
since January 1, 2013. As of the date of this Agreement, there are no outstanding comments from or unresolved issues raised by the SEC with respect to any of the Company Reports.
3.6
Financial Statements
.
(a) The financial statements of the Company and its Subsidiaries included (or incorporated by reference) in the Company Reports
(including the related notes, where applicable) (i) have been prepared from, and are in accordance with, the books and records of the Company and its Subsidiaries, (ii) fairly present in all material respects the consolidated results of
operations, cash flows, changes in stockholders equity and consolidated financial position of the Company and its Subsidiaries for the respective fiscal periods or as of the respective dates therein set forth (subject in the case of unaudited
statements to year-end audit adjustments normal and immaterial in nature and amount), (iii) complied, as of their respective dates of filing with the SEC, in all material respects with applicable accounting requirements and with the published
rules and regulations of the SEC with respect thereto, and (iv) have been prepared in accordance with GAAP consistently applied during the periods involved, except, in each case, as indicated in such statements or in the notes thereto. The
books and records of the Company and its Subsidiaries have been, and are being, maintained in all material respects in accordance with GAAP and any other applicable legal and accounting requirements and reflect only actual
transactions. Deloitte & Touche LLP has not resigned (or informed the Company that it intends to resign) or been dismissed as independent public accountants of the Company as a result of or in connection with any disagreements with the
Company on a matter of accounting principles or practices, financial statement disclosure or auditing scope or procedure.
(b) Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on
the Company, neither the Company nor any of its Subsidiaries has any liability of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether due or to become due), except for those liabilities (i) that are reflected
or reserved against on the consolidated balance sheet of the Company included in its Annual Report on Form 10-K for the fiscal year ended December 31, 2015 or its Quarterly Reports on Form 10-Q for the fiscal quarters ended June 30, 2016 and March
31, 2016 (including any notes thereto), (ii) incurred in the ordinary course of business consistent with past practice since June 30, 2016, (iii) incurred in connection with this Agreement and the transactions contemplated hereby, (iv) arising
under any contract or agreement set forth in Section 3.13(a) of the Company Disclosure Schedule except to the extent arising from the Companys or its applicable Subsidiarys breach of any such contract or agreement or
A-15
(v) disclosed pursuant to clause (a) or (b) of the first paragraph of this Article III. None of the Company or any of its Subsidiaries is a party to any material off-balance sheet
arrangements as defined in Item 303(a)(4) of Regulation S-K.
(c) The records, systems, controls, data and
information of the Company 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 the Company 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, either individually or in
the aggregate, a Material Adverse Effect on the Company. The Company (x) has implemented and maintains disclosure controls and procedures (as defined in Rule 13a-15(e) of the Securities Exchange Act of 1934 (the
Exchange
Act
)) to ensure that material information relating to the Company, including its Subsidiaries, is made known to the chief executive officer and the chief financial officer of the Company by others within those entities as appropriate to
allow timely decisions regarding required disclosures and to make the certifications required by the Exchange Act and Sections 302 and 906 of the Sarbanes-Oxley Act, and (y) has disclosed, based on its most recent evaluation prior to the date
hereof, to the Companys outside auditors and the audit committee of the Companys 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 the Companys ability to record, process, summarize and report financial information, and (ii) to the knowledge of the Company, any fraud,
whether or not material, that involves management or other employees who have a significant role in the Companys internal controls over financial reporting. These disclosures, if any, were made in writing by management to the
Companys auditor and audit committee and a copy of any such disclosure has been made available to Parent. There is no reason to believe that the Companys outside auditors and its chief executive officer and chief financial officer
will not be able to give the certifications and attestations required pursuant to the rules and regulations adopted pursuant to Section 404 of the Sarbanes-Oxley Act, without qualification, when next due.
(d) Since January 1, 2013, (i) neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any
director, officer, auditor, accountant or representative of the Company 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 (including with respect to loan loss reserves, write-downs, charge-offs and accruals) of the Company or any of its Subsidiaries or their respective internal accounting controls,
including any material complaint, allegation, assertion or claim, whether written or oral, that the Company or any of its Subsidiaries has engaged in questionable accounting or auditing practices, and (ii) no attorney representing the Company or any
of its Subsidiaries, whether or not employed by the Company or any of its Subsidiaries, has reported evidence of a material violation of securities Laws, breach of fiduciary duty or similar violation by the Company or any of its officers, directors,
employees or agents to the Board of Directors of the Company or any committee thereof or to the knowledge of the Company, to any director or officer of the Company.
A-16
3.7
Broker
s Fees
. With the exception of the engagement of UBS
Securities LLC, neither the Company nor any Company Subsidiary nor any of their respective officers or directors has employed any broker, finder or financial advisor or incurred any liability for any brokers fees, commissions or finders
fees in connection with the Merger or related transactions contemplated by this Agreement. The Company has made available to Parent true and complete copies of all contracts, agreements and arrangements with respect to the engagement by the
Company of UBS Securities LLC related to the Merger and the other transactions contemplated hereby.
3.8
Absence of Certain Changes or
Events
.
(a) Since December 31, 2015, no event or events have occurred that have had or would reasonably be expected to
have, either individually or in the aggregate, a Material Adverse Effect on the Company.
(b) Except as set forth in
Sections 3.8, 5.1 and 5.2 of the Company Disclosure Schedule (in the case of Sections 5.1 and 5.2 of the Company Disclosure Schedule, solely to the extent the applicable action occurs following the date hereof) and in connection with matters related
to this Agreement and the Companys review of its strategic alternatives (which, for the avoidance of doubt, shall not include entering into an agreement or transaction for an Acquisition Proposal), since December 31, 2015, the Company and its
Subsidiaries have carried on their respective businesses in all material respects in the ordinary course of business, and from such date until the date hereof, there has not been any action taken or committed to be taken by the Company or any of its
Subsidiaries which, if taken following entry by the Company into this Agreement, would have required the consent of Parent pursuant to Section 5.2(b), 5.2(g)(i), 5.2(g)(ii), 5.2(g)(iii), 5.2(k), 5.2(m), 5.2(p), 5.2(q) or 5.2(r).
3.9
Legal Proceedings
.
(a) Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on
the Company, neither the Company nor any of its Subsidiaries is a party to any, and there are no pending or, to the Companys knowledge, threatened, legal, administrative, arbitral or other proceedings, claims, actions or governmental or
regulatory investigations of any nature against the Company or any of its Subsidiaries or any of their current or former directors or executive officers or challenging the validity or propriety of the transactions contemplated by this Agreement.
(b) There is no material injunction, order, judgment, decree, or regulatory restriction imposed upon the Company, any of
its Subsidiaries or the assets of the Company or any of its Subsidiaries (or that, upon consummation of the Merger, would apply to the Surviving Corporation or any of its affiliates).
3.10
Taxes and Tax Returns
.
(a) Each of the Company and its Subsidiaries has duly and timely filed (including all applicable extensions) all material Tax
Returns in all jurisdictions in which Tax Returns are required to be filed by it, and all such Tax Returns are true, correct, and complete
A-17
in all material respects. Neither the Company nor any of its Subsidiaries is the beneficiary of any extension of time within which to file any material Tax Return (other than extensions to
file Tax Returns obtained in the ordinary course). All material Taxes of the Company and its Subsidiaries (whether or not shown on any Tax Returns) that are due have been fully and timely paid. Each of the Company and its Subsidiaries has
withheld and paid all material Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, creditor, stockholder, independent contractor or other third party. Neither the Company nor any of its
Subsidiaries has granted any extension or waiver of the limitation period applicable to any material Tax that remains in effect. Except as set forth in Section 3.10(a) of the Company Disclosure Schedule, the federal income Tax Returns of the
Company and its Subsidiaries for all years to and including 2015 have been examined by the Internal Revenue Service (the
IRS
) and are closed or are federal income Tax Returns with respect to which the applicable period for
assessment under applicable Law, after giving effect to extensions or waivers, has expired. Neither the Company nor any of its Subsidiaries has received written notice of assessment or proposed assessment in connection with any material amount
of Taxes, and there are no threatened in writing or pending disputes, claims, audits, examinations or other proceedings regarding any material Tax of the Company and its Subsidiaries or the assets of the Company and its Subsidiaries. The
Company has made available to Parent true and complete copies of any material private letter ruling requests, closing agreements or gain recognition agreements with respect to Taxes requested or executed in the last six (6) years. There are no
Liens for Taxes (except Taxes not yet due and payable) on any of the assets of the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification
agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and its Subsidiaries). Neither the Company nor any of its Subsidiaries (A) has been a member of an affiliated group (other than a group
the common parent of which was the Company) filing a joint, combined, unitary or consolidated Tax Return or (B) has any liability for the Taxes of any person (other than the Company or any of its Subsidiaries) under Treasury regulations section
1.1502-6 (or any similar provision of applicable Law), as a transferee or successor, by contract or otherwise. Neither the Company nor any of its Subsidiaries has been, within the past two (2) years or otherwise as part of a plan (or
series of related transactions) within the meaning of section 355(e) of the Code of which the Merger is also a part, a distributing corporation or a controlled corporation (within the meaning of section 355(a)(1)(A) of
the Code) in a distribution of stock intending to qualify for tax-free treatment under section 355 of the Code. Neither the Company nor any of its Subsidiaries has participated in a reportable transaction within the meaning of
Treasury regulations section 1.6011-4(b)(1). At no time during the past five (5) years has the Company been a United States real property holding corporation within the meaning of section 897(c)(2) of the Code.
(b) As used in this Agreement, the term
Tax
or
Taxes
means all federal, state, local, and
foreign income, excise, gross receipts, ad valorem, profits, gains, property, capital, sales, transfer, use, license, payroll, employment, social security, severance, unemployment, withholding, duties, excise, windfall profits, intangibles,
franchise, backup withholding, value added, alternative or add-on minimum, estimated and other taxes, charges, levies or like assessments together with all penalties and additions to tax and interest thereon.
A-18
(c) As used in this Agreement, the term
Tax Return
means any
return, declaration, report, claim for refund, or information return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof, supplied or required to be supplied to a Governmental Entity.
3.11
Employees and Employee Benefit Plans
.
(a) Section 3.11(a) of the Company Disclosure Schedule lists all material Company Benefit Plans. For purposes of this
Agreement,
Company Benefit Plans
means all employee benefit plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974 (
ERISA
)), whether or not subject to ERISA, and all stock
option, stock purchase, restricted stock or other equity or equity-based incentive, deferred compensation, retiree medical or life insurance, supplemental retirement, severance, retention, bonus, employment, change in control, termination or
severance plans, programs, agreements or arrangements that are maintained, contributed to or sponsored or maintained by, or required to be contributed to, by the Company or any of its Subsidiaries for the benefit of any current or former employee,
consultant, officer or director of the Company or any of its Subsidiaries and with respect to which any ongoing obligation exists or any potential liability is borne by the Company or any of its Subsidiaries, excluding, in each case, any
multiemployer plans within the meaning of Section 3(37) of ERISA (
Multiemployer Plan
).
(b) The Company has heretofore made available to Parent true and complete copies of (i) each material Company Benefit
Plan, including any amendments thereto, and (ii) to the extent applicable, (A) the most recent summary plan description, if any, required under ERISA with respect to such Company Benefit Plan, (B) the most recent annual report
(Form 5500), if any, filed with the IRS, (C) the most recently received IRS determination letter, if any, relating to such Company Benefit Plan, (D) the most recently prepared actuarial report for each Company Benefit Plan (if
applicable), and (E) all material correspondence to or from any Governmental Entity received in the last three years with respect to such Company Benefit Plan.
(c) Each Company Benefit Plan has been established, operated and administered in all material respects in accordance with its
terms and the requirements of all applicable Laws, including ERISA and the Code.
(d) Section 3.11(d) of the Company
Disclosure Schedule identifies each Company Benefit Plan that is intended to be qualified under section 401(a) of the Code (the
Company Qualified Plans
). The IRS has issued a favorable determination letter with respect
to each Company Qualified Plan and the related trust, and, to the knowledge of the Company, there are no existing circumstances and no events have occurred that would reasonably be expected to adversely affect the qualified status of any Company
Qualified Plan or the related trust.
(e) None of the Company, any of its Subsidiaries or any of their respective ERISA
Affiliates has contributed (or had any obligation to contribute) in the last six (6) years to an employee benefit plan that is subject to sections 412 or 302 of the Code or Title IV of ERISA. None of the Company, any of its Subsidiaries or any
of their respective ERISA
A-19
Affiliates has ever maintained, established, participated in or contributed to, or is or has ever been obligated to contribute to, or has ever otherwise incurred any obligation or liability
(including any contingent liability) under, Multiemployer Plan. For purposes of this Agreement,
ERISA Affiliate
means all employers (whether or not incorporated) that would be treated together with the Company or any of its
Subsidiaries as a single employer within the meaning of section 414 of the Code.
(f) Neither the Company nor
any of its Subsidiaries sponsors, or has any current or projected liability for, any employee benefit plan that provides for any post-employment or post-retirement health or medical or life insurance benefits for retired or former employees or their
dependents, except as required by section 4980B of the Code or similar state Law.
(g) All contributions required to
be made to any Company Benefit Plan by applicable Law or by any plan document, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any period through the date hereof, have been timely made or paid
in full or, to the extent not required to be made or paid on or before the date hereof, have been fully reflected on the books and records of the Company, except as, either individually or in the aggregate, would not reasonably be expected to result
in any material liability to the Company and its Subsidiaries.
(h) There are no, and since January 1, 2013 there have not
been any, pending or threatened claims (other than claims for benefits in the ordinary course), lawsuits, investigations, audits (other than routine audits by a Governmental Entity), proceedings or arbitrations that have been asserted or instituted,
and, to the Companys knowledge, no set of circumstances exists that may reasonably be expected to give rise to a claim, lawsuit, investigation, audit (other than a routine audit by a Governmental Entity), proceeding or arbitration against the
Company Benefit Plans, or the Company or any of its Subsidiaries with respect to any Company Benefit Plan, except as, either individually or in the aggregate, would not reasonably be expected to result in any material liability to the Company and
its Subsidiaries.
(i) Neither the execution and delivery of this Agreement nor the consummation of the transactions
contemplated hereby will (either alone or in conjunction with any other event) result in, cause the vesting, exercisability or delivery of, cause the Company or any of its Subsidiaries to transfer or set aside any assets to fund any material
benefits under any Company Benefit Plan, or increase in the amount or value of, any payment, right or other benefit to any employee, officer or director of the Company or any of its Subsidiaries, or result in any limitation on the right of the
Company or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Company Benefit Plan or related trust. Without limiting the generality of the foregoing, no amount paid or payable (whether in cash, in
property, or in the form of benefits) by the Company or any of its Subsidiaries in connection with the transactions contemplated hereby (either solely as a result thereof or as a result of such transactions in conjunction with any other event) will
be an excess parachute payment within the meaning of Section 280G of the Code. Neither the Company nor any of its Subsidiaries is a party to any plan, program, agreement or arrangement that provides for the gross-up or
reimbursement of Taxes imposed under
A-20
section 4999 of the Code (or any corresponding provisions of state or local Law relating to Tax). The Company has made available to Parent preliminary Section 280G calculations
(the
Preliminary 280G Calculations
) which, based on the assumptions set forth therein, are true and correct as of the date hereof.
(j) Each Company Benefit Plan, and any award thereunder, that is or forms part of a nonqualified deferred compensation
plan within the meaning of Section 409A of the Code has been timely amended (if applicable) to comply and has been operated in compliance with, and the Company and its Subsidiaries have complied in practice and operation with, all applicable
requirements of Section 409A of the Code in all material respects.
(k) The Company maintains a policy that restricts the
grant of Company Equity Awards immediately prior to, or otherwise in coordination with, the release or other public announcement of material information regarding the Company or any of the Company Subsidiaries or any of their financial results or
prospects and, to the knowledge of the Company, the Company has complied in practice and operation with such policy in all material respects.
(l) There are no and since January 1, 2013, there have not been any pending or, to the knowledge of the Company, threatened
material labor grievances or material unfair labor practice claims or charges against the Company or any of its Subsidiaries, or any strikes or other material labor disputes against the Company or any of its Subsidiaries. Neither the Company
nor any of its Subsidiaries is party to or bound by or since January 1, 2013 has been a party to or bound by, any collective bargaining or similar agreement with any labor organization, or work rules or practices agreed to with any labor
organization or employee association applicable to employees of the Company or any of its Subsidiaries and, to the knowledge of the Company, there are no organizing efforts by any union or other group seeking to represent any employees of the
Company and its Subsidiaries.
(m) The Company and each of its Subsidiaries are, and have been since January 1, 2013, in
compliance with all applicable Laws relating to labor and employment, including those relating to labor management relations, wages, hours, overtime, employee classification, discrimination, sexual harassment, civil rights, affirmative action, work
authorization, immigration, safety and health, information privacy and security, works compensation, continuation coverage under group health plans, wage payment and the payment of withholding of taxes, except for failures to comply that have not
had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. No employee of the Company or any of its Subsidiaries is employed by the Company or any of its Subsidiaries outside of the United
States.
(n) There has been no amendment to, written interpretation of or announcement (whether or not written) by the
Company or any of its Subsidiaries relating to, or making a change in employee participation or coverage under, any Company Benefit Plan that would materially increase the expense of maintaining such plan above the level of expense incurred in
respect thereof for the fiscal year ended December 31, 2015, except as required in order to comply with applicable Law.
A-21
3.12
Compliance with Applicable Law
.
(a) The Company and each of its Subsidiaries hold, and have at all times since January 1, 2013, held, all licenses, franchises,
permits and authorizations necessary for the lawful conduct of their respective businesses and ownership of their respective properties, rights and assets under and pursuant to each (and have paid all fees and assessments due and payable in
connection therewith), except where neither the cost of failure to hold nor the cost of obtaining and holding such license, franchise, permit or authorization (nor the failure to pay any fees or assessments) would reasonably be expected to have,
either individually or in the aggregate, a Material Adverse Effect on the Company, and, to the knowledge of the Company, no suspension or cancellation of any such necessary license, franchise, permit or authorization is threatened.
(b) The Company and each of its Subsidiaries have since January 1, 2013 (i) complied with and are not in default or
violation under any applicable federal, state, local or foreign law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation, order, injunction, judgment, decree, ruling or other similar requirement
enacted, adopted, promulgated or applied by a Governmental Entity (collectively,
Laws
), or policy and/or guideline of any Governmental Entity relating to the Company or any of its Subsidiaries, including all Laws related to data
protection or privacy, the USA PATRIOT Act, the Bank Secrecy Act, the Equal Credit Opportunity Act and Regulation B, the Fair Housing Act, the Community Reinvestment Act, the Fair Credit Reporting Act, the Truth in Lending Act and Regulation Z, the
Home Mortgage Disclosure Act, the Fair Debt Collection Practices Act, the Electronic Fund Transfer Act, the Foreign Corrupt Practices Act, the Dodd-Frank Wall Street Reform and Consumer Protection Act, the Investment Advisers Act of 1940, any
regulations promulgated by the CFPB, the Interagency Policy Statement on Retail Sales of Nondeposit Investment Products, the SAFE Mortgage Licensing Act of 2008, the Real Estate Settlement Procedures Act and Regulation X, and any other Law relating
to bank secrecy, discriminatory lending, financing or leasing practices, consumer protection, money laundering prevention, foreign assets control, Sections 23A and 23B of the Federal Reserve Act, the Sarbanes-Oxley Act, and all agency requirements
relating to the origination, sale and servicing of mortgage and consumer loans, (ii) been conducting operations at all times in compliance with applicable financial recordkeeping and reporting requirements of all money laundering laws
administered or enforced by any Governmental Entity in jurisdictions where the Company and its Subsidiaries conduct business (collectively, the
Anti-Money Laundering Laws
), and (iii) established and maintained a system of
internal controls designed to ensure compliance by the Company and its Subsidiaries with applicable financial recordkeeping and reporting requirements of the Anti-Money Laundering Laws, except where, in the case of clauses (i), (ii) and (iii), the
failure to comply would not reasonably be expected to be, either individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole.
(c) Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on
the Company, none of the Company, or its Subsidiaries, or to the knowledge of the Company, any director, officer, employee, agent or other person acting on behalf of the Company or any of its Subsidiaries has, directly or indirectly, (a) used any
funds of the Company or any of its Subsidiaries for unlawful
A-22
contributions, unlawful gifts, unlawful entertainment or other expenses relating to political activity, (b) made any unlawful payment to foreign or domestic governmental officials or employees or
to foreign or domestic political parties or campaigns from funds of the Company or any of its Subsidiaries, (c) violated any provision that would result in the violation of the Foreign Corrupt Practices Act of 1977 or any similar Law, (d)
established or maintained any unlawful fund of monies or other assets of the Company or any of its Subsidiaries, (e) made any fraudulent entry on the books or records of the Company or any of its Subsidiaries, or (f) made any unlawful bribe,
unlawful rebate, unlawful payoff, unlawful influence payment, unlawful kickback or other unlawful payment to any person, private or public, regardless of form, whether in money, property or services, to obtain favorable treatment in securing
business to obtain special concessions for the Company or any of its Subsidiaries, to pay for favorable treatment for business secured or to pay for special concessions already obtained for the Company or any of its Subsidiaries, or is currently
subject to any United States sanctions administered by the Office of Foreign Assets Control of the United States Treasury Department.
(d) Each of the Company and its Subsidiaries has complied in all material respects with, and is not in material default or
violation under, 12 U.S.C. § 1851 and the regulations promulgated by the Federal Reserve Board, the OCC and the SEC in connection therewith (collectively, the
Volcker Rule
) since April 1, 2014. Section 3.12(d) of the
Company Disclosure Schedule sets forth (i) all Company Subsidiaries engaged in activities that require the use of an exemption in 12 C.F.R. §§ 44.4-44.6, 248.4-248.6, or 17 C.F.R. §§ 255.4-255.6, and (ii) all covered funds that
the Company or any of its Subsidiaries sponsors, or in which the Company or any of its Subsidiaries holds an ownership interest (as defined in the Volcker Rule), as well as all the applicable exemptions or exclusions in 12 C.F.R. §§
44.11-44.13, 248.11-248.13, or 17 C.F.R. § 255.11-255.13 that the Company and its Subsidiaries rely upon with respect to such covered funds.
(e) Company and Company Bank are each well-capitalized (as that term is defined in the relevant regulation of the
institutions primary federal bank regulator).
(f) Company Bank is in compliance in all material respects with the
applicable provisions of the Community Reinvestment Act of 1977 and has had a rating of satisfactory or better since January 1, 2013.
(g) The Company and each of its Subsidiaries has properly administered in all material respects all accounts for which it acts
as a fiduciary, including accounts for which it serves as a trustee, agent, custodian, personal representative, guardian, conservator or investment adviser, in accordance with the terms of the applicable governing documents and applicable Law since
January 1, 2013. None of the Company, any of its Subsidiaries, or any of the respective directors, officers or employees has committed any material breach of trust or fiduciary duty with respect to any such fiduciary account, and the
accountings for each such fiduciary account are true and correct and accurately reflect the assets of such fiduciary account since January 1, 2013.
(h) Neither Company Broker-Dealer nor any person associated with it, is subject to a statutory disqualification (as
that term is used for purposes of the Exchange
A-23
Act) that would reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole. Company Broker-Dealer has in effect, and at all times required by legal or
regulatory requirements since January 1, 2013 has had in effect, such written supervisory policies and procedures as may be required by the SEC, FINRA, the Exchange Act and any SRO of which Company Broker-Dealer is or has been a member (
BD
Compliance Policies
), except where the failure to maintain any relevant component(s) of the BD Compliance Policies would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on the
Company. All BD Compliance Policies have been provided or made available to Parent. Company Broker-Dealer has provided Parent with a copy of all inspection or examination letters issued to Company Broker-Dealer and Company
Broker-Dealers response to each such letter.
3.13
Certain Contracts
.
(a) Except as set forth in Section 3.13(a) of the Company Disclosure Schedule, as of the date hereof, neither the Company nor
any of its Subsidiaries is a party to or bound by any contract, arrangement, commitment or understanding (whether written or oral) (i) which is a material contract (as such term is defined in Item 601(b)(10) of Regulation S-K of the
SEC), (ii) which contains a non-compete or client, customer or employee non-solicit requirement or any other provision that restricts the conduct of any line of business by the Company or any of its Subsidiaries or upon consummation of the
Merger will so restrict the ability of Surviving Corporation or any of its affiliates to engage in such activities, (iii) with or to a labor union or guild (including any collective bargaining agreement), (iv) other than (x) extensions of
credit, (y) other banking products offered by the Company and its Subsidiaries or (z) derivatives (in the case of each of sub-clauses (x) through (z), entered into in the ordinary course of business), that creates future aggregate payment
obligations in excess of $1,000,000 and that by its terms does not terminate or is not terminable without penalty upon notice of 60 days or less, (v) that relates to the incurrence of indebtedness by the Company or any of its Subsidiaries or the
guaranty of indebtedness of third parties (other than deposit liabilities, trade payables, federal funds purchased, advances and loans from the Federal Home Loan Bank and securities sold under agreements to repurchase, in each case incurred in the
ordinary course of business) with a principal amount in excess of $10,000,000, (vi) that grants any right of first refusal, right of first offer or similar right with respect to any material assets, rights or properties of the Company or any of
its Subsidiaries, (vii) that is material and obligates the Company or any of its Subsidiaries, or following the Closing, will obligate the Surviving Corporation or any of its affiliates, to conduct business with any third party on a preferential or
exclusive basis or that contains most favored nation or similar covenants, (viii) other than that entered into in the ordinary course of business consistent with past practice (including acquisition or disposition of blocks or pools of
loans in the ordinary course of business), that relates to the acquisition or disposition of any assets or any business for a purchase price in excess of $20,000,000 (whether by merger, sale of stock, sale of assets or otherwise) and with any
outstanding obligations as of the date of this Agreement that are material to the Company and its Subsidiaries, taken as a whole, (ix) that limits the payment of dividends by the Company or any of its Subsidiaries, (x) that is material to the
Company and its Subsidiaries, taken as a whole, or (xi) that would require any affiliate of Parent, other than the Surviving Corporation and its Subsidiaries, to purchase or acquire any goods or services. Each contract,
A-24
arrangement, commitment or understanding of the type described in this Section 3.13(a) in existence as of the date hereof (excluding any Company Benefit Plan), whether or not set forth in the
Company Disclosure Schedule, is referred to herein as a
Company Contract
(
provided
that, for purposes of the first sentence of Section 3.13(b) and the first reference to that term in Section 5.2(e), the term Company
Contract will include any of the above entered into after the date hereof that would have been a Company Contract if it had been in existence as of the date hereof) and neither the Company nor any of its Subsidiaries knows of, or has received
notice of, any violation of the above by any of the other parties thereto which would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on the Company.
(b) In each case, except as would not reasonably be expected to have, either individually or in the aggregate, a Material
Adverse Effect on the Company, (i) each Company Contract is valid and binding on the Company or one of its Subsidiaries, as applicable, and in full force and effect, (ii) the Company and each of its Subsidiaries has performed all obligations
required to be performed by it to date under each Company Contract, (iii) to the Companys knowledge each third-party counterparty to each Company Contract has performed all obligations required to be performed by it to date under such Company
Contract, and (iv) no event or condition exists which constitutes or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any such Company Contract. The Company has made
available to Parent prior to the date hereof true, correct and complete copies of each Company Contract in existence as of the date hereof.
3.14
Agreements with Regulatory Agencies
. Neither the Company nor any of its Subsidiaries is subject to any cease-and-desist or
other order or enforcement action issued by, or is a party to any written agreement, consent agreement or memorandum of understanding with, or is a party to any commitment letter or similar undertaking to, or is subject to any order or directive by,
or has been ordered to pay any civil money penalty by, or has been since January 1, 2013, a recipient of any supervisory letter from, or since January 1, 2013, has adopted any policies, procedures or board resolutions at the request or
suggestion of any Regulatory Agency or other Governmental Entity that currently restricts in any material respect the conduct of its business or that in any material manner relates to its capital adequacy, its ability to pay dividends, its credit or
risk management policies, its management or its business (each, whether or not set forth in the Company Disclosure Schedule, a
Company Regulatory Agreement
), nor has the Company or any of its Subsidiaries been advised since
January 1, 2013, by any Regulatory Agency or other Governmental Entity that it is considering issuing, initiating, ordering, or requesting any such Company Regulatory Agreement.
3.15
Risk Management Instruments
. All interest rate swaps, caps, floors, option agreements, futures and forward contracts and
other similar derivative transactions and risk management arrangements, whether entered into for the account of the Company, any of its Subsidiaries or for the account of a customer of the Company or one of its Subsidiaries, were entered into in the
ordinary course of business and in accordance with prudent business practices and applicable rules, regulations and policies of any Regulatory Agency and with counterparties believed to be financially responsible at the time and are legal, valid and
binding obligations of the Company or one of its Subsidiaries enforceable in accordance with their terms (except as
A-25
may be limited by the Enforceability Exceptions), and are in full force and effect. The Company and each of its Subsidiaries have duly performed in all material respects all of their
material obligations thereunder to the extent that such obligations to perform have accrued, and, to the Companys knowledge, there are no material breaches, violations or defaults or allegations or assertions of such by any party thereunder.
3.16
Environmental Matters
.
(a) Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on
the Company, the Company and its Subsidiaries are in compliance, and have complied since January 1, 2013, with all Laws, policies or guidelines of any Governmental Entity, permits, authorizations and requirements of any Governmental Entity relating
to: (i) the environment, health and safety as it relates to hazardous substance exposure, or natural resource damages, (ii) the handling, storage, labeling, notification, use, presence, disposal, release or threatened release of, or exposure to, any
hazardous substance, or (iii) noise, odor, wetlands, indoor air, pollution, contamination or any injury to persons or property from exposure to any hazardous substance (collectively,
Environmental Laws
). There are no legal,
administrative, arbitral or other proceedings, claims or actions, or to the knowledge of Company any private environmental investigations or remediation activities or governmental investigations of any nature seeking to impose, or that could
reasonably be expected to result in the imposition, on the Company or any of its Subsidiaries of any liability or obligation arising under any Environmental Law, pending or threatened against the Company, which liability or obligation would
reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on the Company. To the knowledge of the Company, there is no reasonable basis for any such proceeding, claim, action, private environmental
investigation or remediation activity or governmental investigation that would impose any liability or obligation that would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on the Company. To
the knowledge of the Company, except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on the Company, there are no liabilities of or relating to the Company or any of its Subsidiaries of
any kind whatsoever, whether accrued, contingent, absolute, determined, determinable or otherwise, arising under or relating to any Environmental Law and there are no facts, conditions, situations or set of circumstances which could reasonably be
expected to result in or be the basis for any such liability.
(b) As of the date hereof, there has been no material
written environmental investigation, study, audit, test, review or other analysis conducted in the possession of the Company or any of its Subsidiaries in relation to the current or prior business of the Company or any of its Subsidiaries or any
property or facility now or previously owned, leased or operated by the Company or any of its Subsidiaries which has not been made available to Parent prior to the date hereof.
(c) The consummation of this transaction will not require any filings or other action be taken pursuant to the New Jersey
Industrial Site Recovery Act or Connecticut Property Transfer Program.
A-26
3.17
Investment Securities and Commodities
.
(a) Each of the Company and its Subsidiaries has good title in all material respects to all securities and commodities owned by
it (except those sold under repurchase agreements), free and clear of any Lien, except as set forth in the financial statements included in the Company Reports or to the extent such securities or commodities are pledged in the ordinary course of
business to secure obligations of the Company or its Subsidiaries. Such securities and commodities are valued on the books of the Company in accordance with GAAP in all material respects.
(b) The Company and its Subsidiaries and their respective businesses employ investment, securities, commodities, risk
management and other policies, practices and procedures that the Company believes are prudent and reasonable in the context of such businesses. Prior to the date of this Agreement, the Company has made available to Parent the material terms of
such policies, practices and procedures.
3.18
Real Property
. Except as would not reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect on the Company, the Company or a Company Subsidiary (a) has good and marketable title to all the real property reflected in the latest audited balance sheet included in the Company
Reports as being owned by the Company or a Company Subsidiary or acquired after the date thereof (except properties sold or otherwise disposed of since such date in the ordinary course of business) (the
Company Owned Properties
),
free and clear of all Liens, except (i) statutory Liens securing payments not yet due, (ii) Liens for real property Taxes not yet due and payable, (iii) easements, rights of way, and other similar encumbrances that do not materially affect the value
or use of the properties or assets subject thereto or affected thereby or otherwise materially impair business operations at such properties and (iv) such imperfections or irregularities of title or Liens as do not materially affect the value or use
of the properties or assets subject thereto or affected thereby or otherwise materially impair business operations at such properties (clauses (i) through (iv), collectively,
Permitted Encumbrances
), and (b) is the lessee of all
leasehold estates reflected in the latest audited financial statements included in such Company Reports or acquired after the date thereof (except for leases that have expired by their terms since such date) (collectively with the Company Owned
Properties, the
Company Real Property
), free and clear of all Liens of any nature whatsoever, except for Permitted Encumbrances, and is in possession of the properties purported to be leased thereunder, and each such lease is
valid without default thereunder by the lessee or, to the Companys knowledge, the lessor. There are no pending or, to the knowledge of the Company, threatened condemnation proceedings against the Company Real Property. Except as
would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on the Company, the properties and assets of the Company and its Subsidiaries are in good condition and are sufficient for the continued
conduct of the business of the Company and its Subsidiaries after the Closing in substantially the same manner as conducted prior to the Closing and constitute all of the rights, property and assets that are necessary to conduct the business of the
Company and its Subsidiaries as currently conducted.
3.19
Intellectual Property
. The Company and each of its Subsidiaries
owns, or is licensed to use (in each case, free and clear of any material Liens), all Intellectual Property necessary for, or used in, the conduct of its business as currently conducted. Except as would not
A-27
reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on the Company, (a) (i) the use of any Intellectual Property by the Company and its Subsidiaries
does not infringe, misappropriate or otherwise violate (and has not infringed, misappropriated or otherwise violated) the rights of any person and is (and has been) in accordance with any applicable license pursuant to which the Company or any
Company Subsidiary acquired the right to use any Intellectual Property, and (ii) no person has asserted to the Company that the Company or any of its Subsidiaries has infringed, misappropriated or otherwise violated the Intellectual Property rights
of such person, (b) no person is challenging or, to the knowledge of the Company, infringing on or otherwise violating, any right of the Company or any of its Subsidiaries with respect to any Intellectual Property owned by the Company or its
Subsidiaries, (c) neither the Company nor any Company Subsidiary has received any notice of any pending claim with respect to any Intellectual Property owned by the Company or any Company Subsidiary, and the Company and its Subsidiaries have taken
commercially reasonable actions to avoid the abandonment, cancellation or unenforceability of all Intellectual Property owned or licensed, respectively, by the Company and its Subsidiaries and (d) to the knowledge of the Company, no third party has
breached or gained unauthorized access to any information technology networks or systems controlled by or used in the operation of the business of the Company or any of its Subsidiaries (or any data or information stored therein or transmitted
thereby). For purposes of this Agreement,
Intellectual Property
means trademarks, service marks, brand names, internet domain names, logos, symbols, certification marks, trade dress and other indications of origin, the
goodwill associated with the foregoing and registrations in any jurisdiction of, and applications in any jurisdiction to register, the foregoing, including any extension, modification or renewal of any such registration or application; patents,
applications for patents (including divisions, continuations, continuations in part and renewal applications), all improvements thereto, and any renewals, extensions or reissues thereof, in any jurisdiction; trade secrets and know-how, including
inventions, processes, technologies, protocols, formulae, prototypes and confidential information and rights in any jurisdiction to limit the use or disclosure thereof by any person; writings and other works, whether copyrightable or not and whether
in published or unpublished works, in any jurisdiction; copyrights registrations or applications for registration of copyrights in any jurisdiction, and any renewals or extensions thereof; and any similar intellectual property or proprietary rights.
3.20
Related Party Transactions
. There are no transactions (or series of related transactions), agreements, arrangements or
understandings, nor are there any currently proposed transactions or series of related transactions, between the Company or any of its Subsidiaries, on the one hand, and any current or former director or executive officer (as defined in
Rule 3b-7 under the Exchange Act) of the Company or any of its Subsidiaries or any person who beneficially owns (as defined in Rules 13d-3 and 13d-5 of the Exchange Act) or beneficially owned 5% or more of the outstanding Company Common Stock (or
any of such persons immediate family members or affiliates) (other than Subsidiaries of the Company), on the other hand, except those of a type available to employees of the Company or its Subsidiaries generally (each such agreement,
arrangement or understanding, a
Related Party Contract
).
3.21
State Takeover Laws
. The Board of Directors
of the Company has approved this Agreement and the transactions contemplated hereby as required to render inapplicable to this Agreement and the transactions contemplated hereby Section 203 of the DGCL and any other takeover Laws of any state,
including any moratorium, control share,
A-28
fair price, takeover or interested stockholder Law (any such Laws,
Takeover Statutes
).
3.22
Opinion
. Prior to the execution of this Agreement, the Board of Directors of the Company has received an opinion (which, if
initially rendered verbally, has been or will be confirmed by a written opinion, dated the same date) of UBS Securities LLC to the effect that, as of the date of such opinion, and based upon and subject to the factors, assumptions, and limitations
set forth therein, the Merger Consideration to be received by the holders of Company Common Stock in the Merger pursuant to this Agreement was fair, from a financial point of view, to the holders of Company Common Stock. Such opinion has not
been amended or rescinded as of the date of this Agreement.
3.23
Company Information
. The Proxy Statement will, when filed,
comply as to form in all material respects with the applicable requirements of the Exchange Act. At the time of the mailing of the Proxy Statement to the stockholders of the Company, at the time of the Company Meeting, and at the time of any
amendments thereof or supplements thereto, the Proxy Statement will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading;
provided
that no representation is made by the Company with respect to information supplied by any of the Parent Entities or any affiliate or representative of the Parent
Entities specifically for use or incorporation by reference in the Proxy Statement. None of the information supplied or to be supplied by the Company or its representatives specifically for inclusion or incorporation by reference in any other
document to be filed with any other Regulatory Agency in connection with the transactions contemplated hereby will contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which they were made, not misleading.
3.24
Loan Portfolio
.
(a) As of the date hereof, except as set forth in Section 3.24(a) of the Company Disclosure Schedule, neither the Company
nor any of its Subsidiaries is a party to any written or oral (i) loan, loan agreement, note or borrowing arrangement (including (A) leases, credit enhancements, commitments, guarantees and interest-bearing assets and (B) any participation in
any of the foregoing) (collectively,
Loans
) in which the Company or any Subsidiary of the Company is a creditor which, as of June 30, 2016, had an outstanding balance of $1,000,000 or more and under the terms of which the obligor
was, as of June 30, 2016, over ninety (90) days or more delinquent in payment of principal or interest, or (ii) Loan to any director, executive officer or 5% or greater stockholder of the Company or any of its Subsidiaries or any such
persons immediate family members or affiliates. Set forth in Section 3.24(a) of the Company Disclosure Schedule is a true, correct and complete list of (A) all of the Loans of the Company and its Subsidiaries (1) that, as of June 30,
2016, were (x) on non-accrual status or (y) classified by the Company as Other Loans Specially Mentioned, Special Mention, Substandard, Doubtful, Loss, Classified,
Criticized, Credit Risk Assets, Concerned Loans, Watch List or words of similar import, together with the principal amount, principal write-off amount and net principal of each such Loan and the
identity of the borrower thereunder, other than Loans with a principal amount of $100,000 or less individually or (2) with respect to which, since January 1, 2013,
A-29
the interest rate has been reduced and/or the maturity date has been extended subsequent to the agreement under which such Loan or Loan participation was originally created due to concerns
regarding the borrowers ability to pay in accordance with the initial terms, excluding, in the case of this clause (2), (x) those loans the Company classifies as government insured pool buyout loans or residential mortgage loans and (y) Loans
with a principal amount of $100,000 or less individually, and (B) each asset of the Company or any of its Subsidiaries that, as of June 30, 2016, is classified by the Company as Other Real Estate Owned and the book value thereof,
other than such assets with a book value of $100,000 or less individually. Notwithstanding anything to the contrary herein, Section 3.24(a) of the Company Disclosure Schedule shall not be considered disclosed for any other purposes of this
Agreement.
(b) Except as would not reasonably be expected to have, either individually or in the aggregate, a Material
Adverse Effect on the Company, each Loan of the Company and its Subsidiaries (i) is evidenced by notes, agreements or other evidences of indebtedness that are true, genuine and what they purport to be, (ii) to the extent carried on the
books and records of the Company and its Subsidiaries as a secured Loan, has been secured by valid charges, mortgages, pledges, security interests, restrictions, claims, liens or encumbrances, as applicable, which have been perfected and
(iii) is the legal, valid and binding obligation of the obligor named therein, enforceable in accordance with its terms, subject to the Enforceability Exceptions.
(c) Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on
the Company, each outstanding Loan of the Company and its Subsidiaries (including Loans held for resale to investors) was solicited and originated, and is and has been administered and, where applicable, serviced, and the relevant Loan files are
being maintained, in accordance with the relevant notes or other credit or security documents, the written underwriting standards of the Company and its Subsidiaries (and, in the case of Loans held for resale to investors, the underwriting
standards, if any, of the applicable investors) and with all applicable Laws.
(d) Except as set forth in Section
3.24(d)(i) of the Company Disclosure Schedule, none of the agreements pursuant to which the Company or any of its Subsidiaries has sold a material amount of Loans, pools of Loans, participations in Loans or mortgage servicing rights contains any
obligation to repurchase or take back any such Loans or interests therein or rights (collectively,
Loan Interests
) that is not in all material respects consistent with industry standard (or would be triggered solely be a failure
to pay) and, to the knowledge of the Company, other than in the ordinary course of business, there are no claims for any such repurchase or put back. Section 3.24(d)(ii) of the Company Disclosure Schedule sets forth summary information that is
accurate and complete in all material respects regarding the Companys and its Subsidiaries history with respect to such repurchases and put backs of Loan Interests and claims with respect thereto for each of the years ended December 31,
2013, December 31, 2014 and December 31, 2015 and the quarters ended June 30, 2016 and March 31, 2016.
(e) Except as
set forth in Section 3.24(e) of the Company Disclosure Schedule, there are no outstanding Loans made by the Company or any of its Subsidiaries to any executive officer or other insider (as each such term is defined in
Regulation O
A-30
promulgated by the Federal Reserve Board) of the Company or its Subsidiaries, other than Loans that are subject to and that were made and continue to be in compliance with Regulation O or that
are exempt therefrom.
(f) Neither the Company nor any of its Subsidiaries is (i) now nor has it ever been since January 1,
2013, subject to any fine, suspension, settlement or other contract or other administrative agreement or sanction by, or any reduction in any loan purchase commitment from, any Governmental Entity or Regulatory Agency relating to the origination,
sale or servicing of mortgage or consumer Loans, or (ii) aware of any claim, proceeding or investigation with respect thereto by any person.
3.25
Insurance
. Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse
Effect on the Company, the Company and its Subsidiaries are insured with reputable insurers against such risks and in such amounts as the management of the Company reasonably has determined to be prudent and consistent with industry practice, and
the Company and its Subsidiaries are in compliance with their insurance policies and are not in default under any of the terms thereof, each such policy is outstanding and in full force and effect and, except for policies insuring against potential
liabilities of officers, directors and employees of the Company and its Subsidiaries, the Company or the relevant Subsidiary thereof is the sole beneficiary of such policies, and all premiums and other payments due under any such policy have been
paid, and all claims thereunder have been filed in due and timely fashion.
3.26
Information Security
. Except as would not
reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on the Company, to the knowledge of Company, since January 1, 2013, no third party has gained unauthorized access to any information technology
networks used in the operation of the business of the Company and its Subsidiaries.
3.27
No Other Representations or
Warranties
.
(a) Except for the representations and warranties made by the Company in this Article III, neither the
Company nor any other person makes any express or implied representation or warranty with respect to the Company, its Subsidiaries, or their respective businesses, operations, assets, liabilities, conditions (financial or otherwise) or prospects,
and the Company hereby disclaims any such other representations or warranties. In particular, without limiting the foregoing disclaimer, neither the Company nor any other person makes or has made any representation or warranty to any of the
Parent Entities or any of their affiliates or representatives with respect to (i) any financial projection, forecast, estimate, budget or prospective information relating to the Company, any of its Subsidiaries or their respective businesses, or
(ii) except for the representations and warranties made by the Company in this Article III, any oral or written information presented to any of the Parent Entities or any of their affiliates or representatives in the course of their due diligence
investigation of the Company, the negotiation of this Agreement or in the course of the transactions contemplated hereby.
(b) The Company acknowledges and agrees that none of the Parent Entities
A-31
or any other person has made or is making any express or implied representation or warranty other than those contained in Article IV.
ARTICLE IV
REPRESENTATIONS AND
WARRANTIES OF THE PARENT ENTITIES
Except as disclosed in the disclosure schedule delivered by Parent to the Company concurrently herewith
(the
Parent Disclosure Schedule
);
provided
, that (a) no such item is required to be set forth as an exception to a representation or warranty if its absence would not result in the related representation or warranty being
deemed untrue or incorrect, (b) the mere inclusion of an item in the Parent Disclosure Schedule as an exception to a representation or warranty shall not be deemed an admission by any of the Parent Entities that such item represents a material
exception or fact, event or circumstance or that such item is reasonably likely to have a Material Adverse Effect on Parent or prevent, materially delay or materially impair the ability of the Parent Entities and Merger Sub to consummate the Merger
and the other transactions contemplated by this Agreement on a timely basis, and (c) any disclosures made with respect to a section of this Article IV shall be deemed to qualify (i) any other section of Article IV specifically referenced or
cross-referenced therein and (ii) other sections of this Article IV to the extent it is reasonably apparent on its face (notwithstanding the absence of a specific cross reference) from reading only the disclosure that such disclosure applies to such
other sections, each of the Parent Entities hereby represents and warrants to the Company as follows:
4.1
Corporate
Organization
.
(a) Each of the Parent Entities and Merger Sub is a state life insurance company or corporation duly
organized, validly existing and in good standing under the laws of its jurisdiction of incorporation and each of TIAA Board of Overseers (
Ultimate Parent
), Parent and Owner is a savings and loan holding company within the meaning
of the HOLA, is duly registered as such with the Federal Reserve Board and is a savings and loan holding company entitled to the exemptions set forth in Section 10(c)(9)(C) of the HOLA. Each of the Parent Entities and Merger Sub has the company
or corporate power and authority to own or lease all of its properties and assets and to carry on its business as it is now being conducted, and is duly licensed or qualified to do business in each jurisdiction in which the nature of the business
conducted by it or the character or location of the properties and assets owned or leased by it makes such licensing or qualification necessary, except where the failure to be so licensed or qualified would not, either individually or in the
aggregate, reasonably be expected to prevent, materially delay or materially impair the ability of the Parent Entities and Merger Sub to consummate the Merger and the other transactions contemplated by this Agreement on a timely basis. True and
complete copies of the articles of incorporation of Parent (
Parent Certificate
), bylaws of Parent (
Parent Bylaws
), certificate of incorporation of Owner (
Owner Certificate
), bylaws of Owner
(
Owner Bylaws
), Merger Sub Certificate and Merger Sub Bylaws, each as in effect as of the date of this Agreement, have previously been made available by Parent to the Company and none of the Parent Entities or Merger Sub is in
violation of its organizational or governing documents, except for any such violation that would not, either individually or in the aggregate, reasonably be expected to prevent,
A-32
materially delay or materially impair the ability of the Parent Entities and Merger Sub to consummate the Merger and the other transactions contemplated by this Agreement on a timely basis.
(b) The Parent Bank is duly organized and validly existing under the laws of the United States, is duly qualified to do
business and, where such concept is recognized under applicable Law, in good standing in all jurisdictions (whether federal, state, local or foreign) where its ownership or leasing of property or the conduct of its business requires it to be so
qualified and in which the failure to be so qualified would, either individually or in the aggregate, reasonably be expected to prevent, materially delay or materially impair the ability of the Parent Entities and Merger Sub to consummate the Merger
and the other transactions contemplated by this Agreement on a timely basis, and has all requisite corporate power and authority to own or lease its properties and assets and to carry on its business as now conducted.
(c) All of the outstanding shares of capital stock of Parent are owned by the Ultimate Parent, which is a New York
not-for-profit corporation. Parent owns, directly or indirectly, all of the issued and outstanding shares of capital stock or other equity ownership interests of Owner. Owner owns, directly or indirectly, all of the issued and outstanding
shares of capital stock or other equity ownership interests of Merger Sub and Parent Bank.
4.2
Authority; No Violation
.
(a) Each of the Parent Entities and Merger Sub has full company or corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly approved and authorized by the Board of
Directors of each of the Parent Entities and Merger Sub and no other company or corporate proceedings (including approval of stockholders) on the part of any of the Parent Entities or Merger Sub are necessary to approve this Agreement or to
consummate the transactions contemplated hereby, except (i) the approval of the Bank Merger Agreement by the Board of Directors of Parent Bank and approval and adoption of the Bank Merger Agreement by Owner as sole stockholder of Parent Bank and
(ii) approvals relating to the Holdco Merger. This Agreement has been duly and validly executed and delivered by each of the Parent Entities and Merger Sub and (assuming due authorization, execution and delivery by the Company) constitutes a
valid and binding obligation of each of the Parent Entities and Merger Sub, enforceable against each in accordance with its terms (except in all cases as such enforceability may be limited by the Enforceability Exceptions).
(b) The execution and delivery of this Agreement by each of the Parent Entities and Merger Sub, and the consummation by each of
the Parent Entities, Merger Sub and Parent Bank of the transactions contemplated hereby, including the Bank Merger and the Holdco Merger, and compliance by each of the Parent Entities, Merger Sub and Parent Bank with any of the terms or provisions
hereof, will not (i) violate any provision of the Parent Certificate, the Parent Bylaws, the Owner Certificate, the Owner Bylaws, Merger Sub Certificate, Merger Sub Bylaws, the articles of incorporation of Parent Bank or the bylaws of Parent Bank,
or (ii) assuming that the consents and approvals referred to in Section 4.3 are
A-33
duly obtained, (x) violate any Law applicable to any of the Parent Entities, Merger Sub or any of their Subsidiaries or any of their respective properties or assets or (y) violate, conflict with,
result in a breach of any provision of or the loss of any benefit under, 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 or a right of termination or
cancellation under, accelerate the performance required by, or result in the creation of any Lien upon any of the respective properties or assets of any of the Parent Entities, Merger Sub or any of their Subsidiaries under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, deed of trust, license, lease, agreement or other instrument or obligation to which any of the Parent Entities, Merger Sub or any of their Subsidiaries is a party, or by which they or
any of their respective properties or assets may be bound, except (in the case of clause (ii) above) for such violations, conflicts, breaches or defaults which would not, either individually or in the aggregate, reasonably be expected to prevent,
materially delay or materially impair the ability of the Parent Entities and Merger Sub to consummate the Merger and the other transactions contemplated by this Agreement on a timely basis.
4.3
Consents and Approvals
. Except for (a) the filing of applications, filings and notices, as applicable, with the Federal
Reserve Board, the OCC and, if required, the FDIC, in connection with the Bank Merger, including under the Bank Merger Act and HOLA, and approval of such applications, filings and notices, (b) the filing of applications, filings and notices, as
applicable, with the Federal Reserve Board under the HOLA and approval of such applications, filings and notices, (c) the filing of the Certificate of Merger with the Delaware Secretary pursuant to the DGCL, and the filing of the Bank Merger
Certificates and Holdco Merger Certificates, (d) the filing with FINRA of an application by Company Broker-Dealer under NASD Rule 1017 and approval of such application, (e) compliance with the Exchange Act, (f) the filing of a Preliminary
Information Report with the Superintendent of State of New York Department of Financial Services (the
NYDFS
) within 30 days following the Merger and (g) the filing of any required applications, filings or notices with any
Governmental Entities set forth in Section 4.3 of the Company Disclosure Schedule and the receipt of the necessary approvals and consents referenced therein, no consents or approvals of or filings or registrations with any Governmental Entity are
necessary in connection with (i) the execution and delivery by the Parent Entities and Merger Sub of this Agreement or (ii) the consummation by the Parent Entities, Merger Sub and Parent Bank of the Merger and the other transactions
contemplated hereby (including the Bank Merger and the Holdco Merger). Furthermore, no pre-Closing consents or approvals of or filings or registrations with the NYDFS are necessary in connection with (i) the execution and delivery by the Parent
Entities and Merger Sub of this Agreement or (ii) the consummation by the Parent Entities, Merger Sub and Parent Bank of the Merger and the other transactions contemplated hereby (including the Bank Merger and the Holdco Merger). As of the date
hereof, Parent is not aware of any reason why the necessary regulatory approvals and consents will not be received in order to permit consummation of the Merger, the Bank Merger and the Holdco Merger on a timely basis and without the imposition of a
Materially Burdensome Regulatory Condition. Notwithstanding anything in this Agreement to the contrary, to the extent the accuracy of the Parent Entities representations and warranties set forth in this Section 4.3 are based on the
accuracy of information provided by the Company, the representations and warranties in this Section 4.3 shall be limited to the extent affected by any inaccuracy in such information.
A-34
4.4
Reports
. Except as would not, either individually or in the aggregate, reasonably
be expected to prevent, materially delay or materially impair the ability of the Parent Entities and Merger Sub to consummate the Merger and the other transactions contemplated by this Agreement on a timely basis: (a) each of the Parent Entities and
its Subsidiaries has timely filed all reports, registrations, statements and other documents, together with any amendments required to be made with respect thereto, that it was required to file since January 1, 2013 with any Regulatory Agencies,
including any report, registration or statement required to be filed pursuant to the Laws of the United States, any state, any foreign entity, or any Regulatory Agency, and have paid all fees and assessments due and payable in connection therewith;
(b) as of their respective dates (and without giving effect to any amendments or modifications filed after the date of this Agreement with respect to reports and documents filed before the date of this Agreement), each of the reports and documents
referenced in clause (a) above, including the financial statements, exhibits and schedules thereto, complied in all material respects with all of the statutes, rules and regulations enforced or promulgated by the Regulatory Agency with which they
were filed; and (c) except as set forth in Section 4.4 of the Parent Disclosure Schedule and for normal examinations conducted by a Regulatory Agency in the ordinary course of business of Parent and its Subsidiaries, (i) no Regulatory Agency has
initiated or has pending any proceeding or, to the knowledge of any Parent Entity, investigation into the business or operations of Parent or any of its Subsidiaries since January 1, 2013, (ii) there is no unresolved violation, criticism or
exception by any Regulatory Agency with respect to any report or statement relating to any examinations or inspections of the Parent Entities or any of their Subsidiaries and (iii) there has been no formal or informal inquiries by, or disagreements
or disputes with, any Regulatory Agency with respect to the business, operations, policies or procedures of Parent or any of its Subsidiaries since January 1, 2013.
4.5
Financial Statements
. The financial statements of Parent that have previously been made available by Parent to the Company
(including the related notes, where applicable) (a) have been prepared from, and are in accordance with, the books and records of Parent, (b) fairly present in all material respects the statutory-basis statements of admitted assets,
liabilities, and capital and contingency reserves as of December 31, 2015 and 2014 and the related statutory-basis statements of operations, of changes in capital and contingency reserves and of cash flows for the years ended December 31, 2015, 2014
and 2013, (c) complied, as of their respective dates, in all material respects with applicable accounting requirements, and (d) have been prepared on the basis of the accounting practices prescribed or permitted by the NYDFS.
4.6
Absence of Certain Changes or Events
. Since December 31, 2015 through the date of this Agreement, no event or events have
occurred that have had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on Parent.
4.7
Legal Proceedings
.
(a) Except as would not, either individually or in the aggregate, reasonably be expected to prevent, materially delay or
materially impair the ability of the Parent Entities and Merger Sub to consummate the Merger and the other transactions contemplated by this Agreement on a timely basis, none of the Parent Entities nor any of their Subsidiaries is a party to any,
and there are no pending or, to any Parent Entitys knowledge, threatened, legal,
A-35
administrative, arbitral or other proceedings, claims, actions or governmental or regulatory investigations of any nature against any Parent Entity or any of their Subsidiaries or any of their
current or former directors or executive officers or challenging the validity or propriety of the transactions contemplated by this Agreement.
(b) There is no injunction, order, judgment, decree, or regulatory restriction imposed upon any Parent Entity, any of their
Subsidiaries or any of their assets (or that, upon consummation of the Merger, would apply to any of the Parent Entities or any of the affiliates) that would, either individually or in the aggregate, reasonably be expected to prevent, materially
delay or materially impair the ability of the Parent Entities and Merger Sub to consummate the Merger and the other transactions contemplated by this Agreement on a timely basis.
4.8
Compliance with Applicable Law
. Each of the Parent Entities and their Subsidiaries have complied in all material respects with
and are not in material default or violation under any, applicable Law or policy and/or guideline of any Governmental Entity relating to any of the Parent Entities or their Subsidiaries, except where neither such failure to comply with nor such
default or violation under any applicable Law or policy and/or guideline of any Governmental Entity relating to the Parent Entities or any of their Subsidiaries would, either individually or in the aggregate, reasonably be expected to prevent,
materially delay or materially impair the ability of the Parent Entities and Merger Sub to consummate the Merger and the other transactions contemplated by this Agreement on a timely basis. As of the date hereof, Parent Bank has a Community
Reinvestment Act rating of satisfactory or better.
4.9
Agreements with Regulatory Agencies
. Except as would not,
either individually or in the aggregate, reasonably be expected to prevent, materially delay or materially impair the ability of the Parent Entities and Merger Sub to consummate the Merger and the other transactions contemplated by this Agreement on
a timely basis:
(a) none of the Parent Entities or any of their Subsidiaries is subject to any cease-and-desist or other
order or enforcement action issued by, or is a party to any written agreement, consent agreement or memorandum of understanding with, or is a party to any commitment letter or similar undertaking to, or is subject to any order or directive by, or
has been ordered to pay any civil money penalty by, or has been since January 1, 2013, a recipient of any supervisory letter from, or since January 1, 2013, has adopted any policies, procedures or board resolutions at the request or suggestion of
any Regulatory Agency or other Governmental Entity that currently restricts in any material respect the conduct of its business or that in any material manner relates to its capital adequacy, its ability to pay dividends, its credit or risk
management policies, its management or its business (each, whether or not set forth in the Parent Disclosure Schedule, a
Parent Regulatory Agreement
), nor has any of the Parent Entities or any of their Subsidiaries been advised in
writing since January 1, 2013, by any Regulatory Agency or other Governmental Entity that it is considering issuing, initiating, ordering or requesting any such Parent Regulatory Agreement; and
(b) to the knowledge of any Parent Entity, no Insurance Regulator that noted any deficiencies or violations in any reports of
examination since January 1, 2013 has advised Parent or the applicable Subsidiaries of Parent through which the Parent Entities
A-36
conduct their insurance operations (collectively, the
Parent Insurance Subsidiaries
) of any intention to commence any material regulatory proceeding or to otherwise take any
material disciplinary action against such Parent Insurance Subsidiary based upon such deficiencies or violations.
4.10
Parent
Information
. None of the information supplied or to be supplied by any of the Parent Entities, Merger Sub or their respective representatives in writing for inclusion or incorporation by reference in the Proxy Statement will at the time of
the mailing of the Proxy Statement to the stockholders of the Company, at the time of the Company Meeting, and at the time of any amendments thereof or supplements thereto, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
provided
that no representation is made by any of the Parent Entities
or Merger Sub with respect to information supplied by the Company or any affiliate or representative of the Company specifically for use or incorporation by reference therein.
4.11
Availability of Funds
. As of the Closing Date, Parent shall have or have immediately available to it sufficient funds (which
funds, as well as the obligations of the Parent Entities and Merger Sub hereunder, shall not be subject to any financing condition or contingencies) to consummate the Merger and the other transactions contemplated hereby and required for the
satisfaction of all obligations of each of the Parent Entities and Merger Sub under this Agreement, including the payment of the Merger Consideration, the Preferred Stock Consideration, and the consideration in respect of the Company Equity Awards
under Section 1.9.
4.12
Ownership and Operations of Merger Sub
. As of the date of this Agreement, the authorized capital
stock of Merger Sub consists of 1,000 shares of Merger Sub Common Stock, 100 shares of which are validly issued and outstanding. All the issued and outstanding capital stock of Merger Sub is, and at the Effective Time will be, owned by Owner or
a direct or indirect wholly owned Subsidiary of Owner. Merger Sub has not conducted any business other than (x) incident to its formation for the sole purpose of carrying out the transactions contemplated by this Agreement or (y) in relation to
this Agreement, the Merger and the other transactions contemplated hereby and the financing of such transactions.
4.13
Ownership of
Shares
. None of the Parent Entities or any of their Subsidiaries owns as General Account Shares any Company Stock, beneficially, of record or otherwise, as of the date hereof or at any from the date hereof to the time that is immediately
prior to the Effective Time.
4.14
No Interested
Stockholder
. Prior to the Board of Directors of the Company approving
this Agreement, the Merger and the other transactions contemplated hereby for purposes of the applicable provisions
of the DGCL, none of the Parent Entities or Merger Sub, alone or together with any other person, was at any time, or became,
an interested stockholder thereunder, except as would not be material for purposes hereof.
4.15
No Other Representations
or Warranties
.
A-37
(a) Except for the representations and warranties made by the Parent Entities in
this Article IV, none of the Parent Entities or any other person makes any express or implied representation or warranty with respect to any of the Parent Entities, their Subsidiaries, or their respective businesses, operations, assets, liabilities,
conditions (financial or otherwise) or prospects, and each of the Parent Entities hereby disclaims any such other representations or warranties. In particular, without limiting the foregoing disclaimer, none of the Parent Entities or any other
person makes or has made any representation or warranty to the Company or any of its affiliates or representatives with respect to (i) any financial projection, forecast, estimate, budget or prospective information relating to any of the Parent
Entities, their Subsidiaries or their respective businesses, or (ii) except for the representations and warranties made by any of the Parent Entities in this Article IV, any oral or written information presented to the Company or any of its
affiliates or representatives in the course of their due diligence investigation of the Parent Entities, the negotiation of this Agreement or in the course of the transactions contemplated hereby.
(b) Each of the Parent Entities acknowledges and agrees that neither Company nor any other person has made or is making any
express or implied representation or warranty other than those contained in Article III.
ARTICLE V
COVENANTS RELATING TO CONDUCT OF BUSINESS
5.1
Conduct of Business of the Company Prior to the Effective Time
. During the period from the date of this Agreement to the
Effective Time or earlier termination of this Agreement, except as expressly contemplated or expressly permitted by this Agreement (including as expressly set forth in Section 5.1 or 5.2 of the Company Disclosure Schedule), required by applicable
Law or as consented to in writing by Parent (or, in the case of clause (b) in relation to the Parent Entities, the Company) (such consent not to be unreasonably withheld), (a) the Company shall, and shall cause its Subsidiaries to, (i) conduct its
business (x) in the ordinary course of business in all material respects and (y) in compliance with applicable Laws (except, in the case of this clause (y), as would not reasonably be expected to be, either individually or in the aggregate, material
to the Company and its Subsidiaries, taken as a whole) and (ii) use reasonable best efforts to maintain and preserve intact its business organization, employees and advantageous business relationships, and (b) each of the Company and the Parent
Entities shall, and shall cause their respective Subsidiaries to, take no action that would reasonably be expected to adversely and materially affect or materially delay the ability to obtain any necessary approvals of any Regulatory Agency or other
Governmental Entity required for the transactions contemplated hereby or to perform its respective covenants and agreements under this Agreement or to consummate the transactions contemplated hereby on a timely basis.
A-38
5.2
Company Forbearances
. During the period from the date of this Agreement to the
Effective Time or earlier termination of this Agreement, except as set forth in Sections 5.1 and 5.2 of the Company Disclosure Schedule, as expressly contemplated or expressly permitted by this Agreement or as required by applicable Law, the Company
shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Parent (such consent not to be unreasonably withheld):
(a) other than in the ordinary course of business consistent with past practice, incur any indebtedness for borrowed money
(other than indebtedness of the Company or any of its wholly owned Subsidiaries to the Company or any of its wholly owned Subsidiaries), or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any
other individual, corporation or other entity;
(b)
(i) adjust, split, combine or reclassify any capital stock;
(ii) make, declare or pay any dividend, or make any other distribution on, or directly or indirectly redeem, purchase or
otherwise acquire, any shares of its capital stock or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of
its capital stock (except (A) regular quarterly cash dividends by the Company in the ordinary course of business (including being declared and paid consistent with past practice from a timing perspective) at a rate not in excess of $0.06 per share
of Company Common Stock, (B) dividends payable on the Company Preferred Stock, (C) dividends payable on trust preferred securities, (D) dividends paid by any of the Subsidiaries of the Company to the Company or any of its wholly owned
Subsidiaries, or (E) the acceptance of shares of Company Common Stock as payment for the exercise price of Company Stock Options or for withholding Taxes incurred in connection with the exercise of Company Stock Options or the vesting or settlement
of Company Equity Awards, in each case, in accordance with past practice and the terms of the applicable award agreements);
(iii) grant any Company Equity Awards or any other stock options, stock appreciation rights, performance shares, restricted
stock units, restricted shares or other equity-based awards or interests, or grant any individual, corporation or other entity any right to acquire any shares of its capital stock; or
(iv) issue, sell or otherwise permit to become outstanding any additional shares of capital stock or securities convertible or
exchangeable into, or exercisable for, any shares of its capital stock or any options, warrants or other rights of any kind to acquire any shares of capital stock, except pursuant to the exercise of Company Stock Options or the settlement of Company
Equity Awards in accordance with their terms;
(c) sell, transfer, mortgage, encumber or otherwise dispose of any of its
material properties or assets or any business to any individual, corporation or other entity
A-39
other than a wholly owned Subsidiary, or cancel, release or assign any indebtedness to any such person or any claims held by any such person, in each case other than in the ordinary course of
business consistent with past practice, or pursuant to contracts or agreements in force at the date of this Agreement;
(d)
except for transactions in the ordinary course of business consistent with past practice (which shall include purchases of blocks or pools of loans in the ordinary course of business consistent with past practice), acquire any material assets or
make any material investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other individual, corporation or other entity other than a wholly owned Subsidiary of
the Company;
(e) (i) terminate, materially amend or waive any material provision of any Company Contract, or make any
change in any instrument or agreement governing the terms of any of its securities, or any material lease or contract, other than (x) any normal renewal of a contract or a lease that after the renewal (1) has aggregate future payment obligations of
$500,000 or less, (2) has a term of 36 months or less, and (3) does not have a termination fee in excess of the value of such contract or lease; and (y) any amendment(s) of a contract or a lease (1) that individually or in the aggregate result in an
increase in aggregate future payment obligations of no more than the lesser of 20% of the value of such contract or lease as of the date of this Agreement and $200,000, in each case, for all amendments of such contract or lease since the date of
this Agreement and (2) that does not extend the term of such contract or lease (
provided
, in the case of clauses (x) and (y), that no such contract or lease shall be both renewed and amended), in each case with respect to (x) and (y), without
material adverse changes of terms with respect to the Company or, following the closing, to the Surviving Corporation or any of its affiliates, or (ii) enter into any contract that would constitute a Company Contract if it were in effect on the date
of this Agreement;
(f) terminate, amend or waive any provision of any Related Party Contract or enter into any agreement,
arrangement or understanding that would constitute a Related Party Contract;
(g) except as required under applicable Law
or the terms of any Company Benefit Plan, (i) enter into, adopt, terminate or amend any Company Benefit Plan, other than amendments in the ordinary course of business consistent with past practice that do not materially increase the cost to the
Company of maintaining such Company Benefit Plan, (ii) increase the compensation or benefits payable to any current or former employee, officer or director, except for (w) the grant of cash bonus spot awards to employees below the
level of Senior Vice President in the ordinary course of business consistent with past practice, (x) annual merit-based increases in base salary or wage rate for employees below the level of Senior Vice President, in the ordinary course of business
consistent with past practice, (y) increases in base salary or wage rate for employees below the level of Senior Vice President in connection with and corresponding to any promotions or job transfers implemented in the ordinary course of business
consistent with past practice;
provided
that the increased base salary or wage rate is consistent with the Companys ordinary course practices for the new role of the promoted or transferred employee or (z) increases in base salary, wage
rate or bonus target for employees below the level of Senior Vice President in connection with
A-40
and corresponding to any market adjustments implemented in the ordinary course of business consistent with past practice;
provided
that the increased base salary, wage rate or bonus
target, as applicable, is supported by objective industry and job function survey data routinely consulted by the Company for the purposes of making such market adjustments;
provided
,
however
, that any increases pursuant to clauses
(w), (x), (y) and/or (z) hereof shall not, in the aggregate, increase by more than four percent (4%) the aggregate cost of base salaries and wage rates for all employees as in effect as of the date hereof, (iii) pay or award, or commit to pay or
award, any bonuses or incentive compensation, except for the payment of bonuses and incentive compensation in the ordinary course of business pursuant to the plans and programs listed in Section 5.2(g) of the Company Disclosure Schedule as in effect
as of the date hereof (the
Bonus Plans
) for completed periods;
provided
that with respect to any bonuses paid under any Bonus Plan that is designated in Section 5.2(g) of the Company Disclosure Schedule as a material
Bonus Plan, the Company shall consult with Parent prior to payment of bonuses under such Bonus Plan, (iv) enter into any new, or amend any existing, employment, severance, change in control, retention, collective bargaining agreement or
similar agreement or arrangement, (v) fund any rabbi trust or similar arrangement, or (vi) terminate the employment of any Key Employee, other than for cause, or hire any employee at or above the level of Senior Vice President;
(h) commence (except in the ordinary course of business in connection with the collection of debt) or settle any material
claim, suit, action or proceeding, except in the ordinary course of business in an amount and for consideration not in excess of $500,000 individually or $1,000,000 in the aggregate and that would not impose any material restriction on the business
of it or its Subsidiaries or the Surviving Corporation or any of its affiliates;
(i) amend the Company Certificate or
Company Bylaws or comparable governing documents of its Subsidiaries;
(j) merge or consolidate itself or
any of its Subsidiaries with any other person, or restructure, reorganize or completely or partially liquidate or dissolve it or any of its Subsidiaries;
(k) materially restructure or materially change its investment securities or derivatives portfolio or materially change the
interest rate exposure of either such portfolio, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported or purchase any security rated below investment grade;
(l) take any action that is intended or reasonably expected to result in any of the conditions to the Merger set forth in
Section 7.1 or 7.2 not being satisfied in a timely manner;
(m) implement or adopt any change in its accounting principles,
practices or methods, other than as may be required by GAAP;
(n) (i) enter into any new line of business, (ii) other than
in the ordinary course of business consistent with past practice and so long as it does not result in a material change in the risk profile, change in any material respect any of its lending, investment,
A-41
underwriting, risk, asset liability management or other banking or operating, securitization or servicing policies (including any change in the maximum ratio or similar limits as a percentage of
its capital exposure applicable with respect to its loan portfolio or any segment thereof), except as required by applicable Law or policies imposed by any Governmental Entity, or (iii) (1) make any unsecured loans or extensions of credit that
are in excess of $100,000 in a single transaction or $10,000,000 in the aggregate, except pursuant to existing commitments as of the date hereof or (2) make any secured loan or extension of credit that is in excess of $30,000,000 in a single
transaction, except pursuant to existing commitments as of the date hereof (notwithstanding the foregoing, if such secured loan or extension of credit is a mortgage warehouse finance facility, $75,000,000 shall substitute for
$30,000,000 in clause (2) hereof and, if such secured loan or extension of credit is a lender finance facility, $60,000,000 shall substitute for $30,000,000 in clause (2) hereof);
(o) make any material changes in any of its policies and practices with respect to (i) underwriting, pricing, originating,
acquiring, selling, servicing, or buying or selling rights to service, loans or (ii) its hedging practices and policies, in each case except as may be required by applicable Laws or guidelines or policies imposed by any Governmental Entity;
(p) make, or commit to make, any capital expenditures in excess of $3,000,000 individually or $15,000,000 in the aggregate;
(q) other than in the ordinary course of business, make, change or revoke any material Tax election, change an annual Tax
accounting period, adopt or change any material Tax accounting method, file any amended material Tax Return, enter into any closing agreement with respect to Taxes that results in a material assessment or material restriction on the business of the
Company or any of its Subsidiaries, or settle any material Tax claim, audit, assessment or dispute or surrender any material right to claim a refund of Taxes;
(r) make an application for the opening, relocation or closing of any, or open, relocate or close any, branch office, loan
production office or other significant office or operations facility of it or its Subsidiaries or acquire or sell or agree to acquire or sell, any branch office or any deposit liabilities; or
(s) agree to take, make any commitment to take, or adopt any resolutions of its Board of Directors or similar governing body in
support of, any of the actions prohibited by this Section 5.2.
5.3
Parent Entity Forbearances
. During the period from the
date of this Agreement to the Effective Time or earlier termination of this Agreement, except as set forth in Section 5.3 of the Parent Disclosure Schedule, as expressly contemplated or expressly permitted by this Agreement or as required by
applicable Law, each of the Parent Entities shall not, and shall not permit any of its Subsidiaries (to the extent applicable below) to, without the prior written consent of Company (such consent not to be unreasonably withheld):
(a) take any action that is intended or reasonably expected to result in any of the conditions to the Merger set forth in
Section 7.1 or 7.3 not being satisfied in a timely
A-42
manner; or
(b) agree to take, make any commitment to take, or adopt
any resolutions of its Board of Directors or similar governing body in support of, any of the actions prohibited by this Section 5.3.
5.4
Representatives
. Each of the Company and Parent agrees to make one or more of its authorized representatives (in the case of the Company, each, a
Company Representative
and in the case of Parent, each, a
Parent Representative
) reasonably available to consider requests from the other party for consents under Section 5.2 and/or Section 5.3, as applicable, and to use commercially reasonable efforts to cause a Company Representative
or Parent Representative, as applicable, to respond to such requests promptly (in any event within five (5) business days of such requests);
provided
that in the event that a Company Representative or Parent Representative, as applicable,
does not respond to any such request within five (5) business days, the Company or Parent, as applicable, shall be deemed to have consented to such request. Each request by the Company under Section 5.2 shall be made to the Parent
Representatives and shall specifically state that it is a request for consent under Section 5.2 of this Agreement and that if a response is not received within five (5) business days such consent will be deemed to have been granted. Each
request by Parent under Section 5.3 shall be made to the Company Representatives and shall specifically state that it is a request for consent under Section 5.3 of this Agreement and that if a response is not received within five (5) business days
such consent will be deemed to have been granted. The initial Company Representatives shall be Mark Baum and Jean-Marc Corredor or any of their designees, and the initial Parent Representatives shall be Michael Kahn and BJ Haughey or any of
their designees.
ARTICLE VI
ADDITIONAL AGREEMENTS
6.1
Regulatory Matters
.
(a) The Company shall promptly prepare and file with the SEC, no later than thirty-five (35)
days after the date of this Agreement, the Proxy Statement, and each of the Parent Entities shall cooperate with the Company in connection with the preparation of the Proxy Statement. The Company shall use its reasonable best efforts to have
the Proxy Statement cleared by the SEC as promptly as practicable after such filing and shall thereafter as promptly as practicable (but in any event no later than ten (10) days thereafter) mail or deliver the Proxy Statement to its
stockholders. The Company shall as promptly as reasonably practicable notify Parent of the receipt of any oral or written comments from the staff of the SEC relating to the Proxy Statement. The Company shall cooperate and provide Parent
with the opportunity to review and comment on (i) the draft of the Proxy Statement (including each amendment or supplement thereto) and (ii) all written responses to requests for additional information by and replies to written comments of the staff
of the SEC, prior to the filing of the Proxy Statement with or sending such to the SEC, and the Company will (x) consider Parents comments in good faith, (y) not make any statement therein regarding Parent or any of its affiliates without
Parents consent (not to be unreasonably withheld), except as may be required by applicable Law and (z) provide to Parent copies of all such
A-43
filings made and correspondence with the SEC or its staff with respect thereto. If at any time prior to the Effective Time, any information should be discovered by any party hereto which
should be set forth in an amendment or supplement to the Proxy Statement so that the Proxy Statement would not include any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and, to the extent required by applicable Law, an appropriate
amendment or supplement describing such information shall be promptly filed by the Company with the SEC and disseminated by the Company to its stockholders.
(b) The parties hereto shall cooperate with each other and use their reasonable best efforts to promptly prepare and file all
necessary documentation, to effect all applications, notices, petitions and filings, to obtain as promptly as practicable all permits, consents, approvals and authorizations of all third parties and Governmental Entities which are necessary or
advisable to consummate the transactions contemplated by this Agreement (including the Merger, the Bank Merger and the Holdco Merger), and to comply with the terms and conditions of all such permits, consents, approvals and authorizations of all
such third parties and Governmental Entities. Without limiting the generality of the foregoing, as soon as practicable and in no event later than forty-five (45) days after the date of this Agreement, each of the Parent Entities and the Company
shall, and shall cause their respective Subsidiaries to, prepare and file any applications, notices and filings required to be filed with any regulatory agency in order to obtain the Requisite Regulatory Approvals;
provided
, that,
notwithstanding that Company Bank is required to file an application under the Bank Merger Act, each of the Parent Entities shall, and shall cause their respective Subsidiaries to, prepare such application and be responsible for the approval process
relating thereto. In connection with the foregoing, any filing party shall request confidential treatment for any information another party shall request be kept confidential, to the extent permitted by applicable Law, and shall use reasonable
best efforts to cause such request to be granted. Subject to Section 6.1(c), each of the Parent Entities and the Company shall use, and shall cause its applicable Subsidiaries to use, reasonable best efforts to obtain each such Requisite
Regulatory Approval as promptly as reasonably practicable. Each of the Parent Entities and the Company shall have the right to review in advance, and, to the extent practicable, each will consult the other on, in each case subject to applicable
Laws relating to the exchange of information, any filing made with, or written materials submitted to, any third party or any Governmental Entity in connection with the transactions contemplated by this Agreement. In exercising the foregoing
right, each of the parties hereto shall act reasonably and as promptly as practicable. The parties hereto agree that they will consult with each other with respect to the obtaining of all permits, consents, approvals and authorizations of all
third parties and Governmental Entities necessary or advisable to consummate the transactions contemplated by this Agreement, and each party will keep the other parties apprised promptly of the status of filings and applications, including
communications with Governmental Entities, and all other matters relating to completion of the transactions contemplated hereby. Each party shall consult with the other parties in advance of any meeting or conference with any Governmental
Entity in connection with the transactions contemplated by this Agreement.
(c) In furtherance and not in limitation of the
foregoing, each of the Parent
A-44
Entities and the Company shall use its reasonable best efforts to avoid the entry of, or to have vacated, lifted, reversed or overturned, any decree, judgment, injunction or other order, whether
temporary, preliminary or permanent, that would restrain, prevent or delay the Closing;
provided
that none of the Parent Entities shall have any obligation to litigate or participate in the litigation of any action, suit or proceeding,
whether judicial or administrative, in order to oppose or defend any action, suit or proceeding by the Federal Reserve Board, the OCC, the FDIC, the NYDFS, the SEC or FINRA. Notwithstanding the foregoing, nothing contained in this Agreement
shall be deemed to require any of the Parent Entities or permit the Company to take any action, or commit to take any action, or agree to any condition or restriction that would (i) reasonably be expected to have a material adverse effect on the
business, properties, assets, liabilities, results of operations or condition (financial or otherwise) of Parent and its Subsidiaries, taken as a whole after giving effect to the transactions contemplated hereby (but measured on a scale relative to
the Company and its Subsidiaries, taken as a whole as of the date hereof), (ii) cause Parent to lose, suffer any diminution in or have otherwise adversely modified or impaired any of its legislative or regulatory rights, statuses or privileges or
have an adverse effect on the regulatory exemptions available to Parent due to any of the foregoing or (iii) cause Parent or any of its Subsidiaries (other than Parent Bank, Company Bank and their respective Subsidiaries) to either (x) divest,
restrict or be subject to any limit on any lawful business or activity (other than, in the case of this clause (iii), either (A) the closure of offices, or similar requirements, resulting from competition issues or (B) regulatory conditions that
would be
de minimis
) or (y) be subject to any prior notice or approval rights with respect to the ability to engage in any lawful business or activity (each of clauses (i), (ii) and (iii), a
Materially Burdensome Regulatory
Condition
).
(d) Each of the Parent Entities and the Company shall, upon request, furnish each other with all
information concerning themselves, their Subsidiaries, directors, officers and stockholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement or any other statement, filing, notice or
application made by or on behalf of Parent, the Company or any of their respective Subsidiaries to any Governmental Entity in connection with the Merger, the Bank Merger, the Holdco Merger and the other transactions contemplated by this Agreement.
(e) To the extent permitted by applicable Law, each of the Parent Entities and the Company shall promptly advise each
other upon receiving any communication from any Governmental Entity whose consent or approval is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood
that any Requisite Regulatory Approval will not be obtained or that the receipt of any such approval will be materially delayed. As used in this Agreement,
Requisite Regulatory Approvals
shall mean all regulatory
authorizations, consents, orders or approvals from the OCC, the Federal Reserve Board and, if required, the FDIC.
6.2
Access to
Information
.
(a) Upon reasonable notice and subject to applicable Laws, the Company shall, and shall cause each of its
Subsidiaries to, afford to the officers, employees, accountants, counsel, advisors and other representatives of the Parent Entities, for the
A-45
purposes of verifying the representations and warranties of the Company, preparing for the Merger and the other matters contemplated by this Agreement, or otherwise relating to the transactions
contemplated herein, access, during normal business hours during the period prior to the Effective Time, to all its properties, books, contracts, commitments, personnel, information technology systems and records, and the Company shall cooperate
with the Parent Entities in preparing to execute after the Effective Time the conversion or consolidation of systems and business operations generally, and, during such period, the Company shall, and shall cause its Subsidiaries to, make available
to the Parent Entities (i) a copy of each report, schedule, registration statement and other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of federal securities Laws or federal
or state banking Laws (other than reports or documents that the Company is not permitted to disclose under applicable Law), and (ii) all other information concerning the Companys and its Subsidiaries business, properties and personnel as
the Parent Entities may reasonably request. Neither the Company nor any of its Subsidiaries shall be required to provide access to or to disclose information where such access or disclosure would jeopardize the attorney-client privilege of the
institution in possession or control of such information (after giving due consideration to the existence of any common interest, joint defense or similar agreement between the parties) or contravene any Law, fiduciary duty or binding agreement
entered into prior to the date of this Agreement. The Company will make appropriate substitute disclosure arrangements under circumstances in which the restrictions of the preceding sentence apply.
(b) Parent shall hold all information furnished by or on behalf of the Company or any of the Companys Subsidiaries or
representatives pursuant to Section 6.2(a) in confidence to the extent required by, and in accordance with, the provisions of the confidentiality agreement, dated May 7, 2016, between Parent and the Company (the
Confidentiality
Agreement
), and Owner shall hold all such information in confidence to the extent required by, and in accordance with, the provisions of the Confidentiality Agreement as if it were a party thereto.
(c) No investigation by either of the parties or their respective representatives shall affect or be deemed to modify or waive
the representations and warranties of the other set forth herein.
(d) Nothing contained in this Agreement shall give either
the Company or any of the Parent Entities, directly or indirectly, the right to control or direct the operations of the other prior to the Effective Time. Prior to the Effective Time, each party shall exercise, consistent with the terms and
conditions of this Agreement, complete control and supervision over its and its Subsidiaries respective operations.
6.3
Stockholders
Approval
.
(a) The Company shall call, give notice of, convene and hold a meeting of
its stockholders (the
Company Meeting
) as soon as reasonably practicable after the Proxy Statement is cleared by the SEC for the purpose of obtaining the Requisite Company Vote required in connection with this Agreement and the
Merger and, if so desired and mutually agreed, upon other matters of the type customarily brought before an annual or special
A-46
meeting of stockholders to adopt a merger agreement. The Board of Directors of the Company shall use its reasonable best efforts to obtain from the stockholders of the Company the Requisite
Company Vote, including by communicating to its stockholders its recommendation (and including such recommendation in the Proxy Statement) that they adopt and approve this Agreement and the transactions contemplated hereby (the
Company
Recommendation
). The Company shall if requested by Parent engage a proxy solicitor reasonably acceptable to Parent to assist in the solicitation of proxies from stockholders relating to the Requisite Company Vote. However,
subject to Sections 8.1 and 8.2, if the Board of Directors of the Company, after receiving the advice of its outside counsel and, with respect to financial matters, its financial advisor, determines in good faith that it would be more likely than
not to result in a violation of its fiduciary duties under applicable Law to continue to recommend this Agreement, then in submitting this Agreement to the stockholders of the Company, the Board of Directors of the Company may submit this Agreement
to the stockholders of the Company without recommendation (although the resolutions approving this Agreement as of the date hereof may not be rescinded or amended), in which event the Board of Directors of the Company may communicate the basis for
its lack of a recommendation to its stockholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by Law;
provided
, that the Board of Directors of the Company may not take any actions under this
sentence unless (A) (1) the Company has received an Acquisition Proposal that did not result from a breach of Section 6.9 (and such proposal is not withdrawn) and the Board of Directors of the Company determines in good faith (after receiving the
advice of its outside counsel, and with respect to financial matters, its financial advisor) that such Acquisition Proposal constitutes a Superior Proposal (as defined below) or (2) an Intervening Event shall have occurred and the Board of Directors
of the Company determines in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisor) that continuing to recommend this Agreement would be more likely than not to result in a
violation of its fiduciary duties under applicable Law, (B) the Company gives Parent at least five (5) business days prior written notice of its intention to take such action and a reasonable description of the event or circumstances giving
rise to its determination to take such action (including (1) in the case of an Acquisition Proposal, the latest material terms and conditions of, and the identity of the third party making, any such Acquisition Proposal and any amendment or
modification thereof or (2) in the case of an Intervening Event, the nature of the Intervening Event in reasonable detail) and (C) at the end of such notice period, the Board of Directors of the Company takes into account any amendment or
modification to this Agreement proposed by Parent (which shall be negotiated in good faith by the Company) and after receiving the advice of its outside counsel and, with respect to financial matters, its financial advisor, determines in good faith
that it would nevertheless be more likely than not to result in a violation of its fiduciary duties under applicable Law to continue to recommend this Agreement. Any material amendment to any Acquisition Proposal will be deemed to be a new
Acquisition Proposal for purposes of this Section 6.3(a) and will require a new notice period as referred to in this Section 6.3(a). The Company shall adjourn or postpone the Company Meeting if, as of the time for which such meeting is
originally scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of such meeting, or if on the date of such meeting the Company has not
received proxies representing a sufficient number of
A-47
shares necessary to obtain the Requisite Company Vote. For the avoidance of doubt, but subject to the immediately preceding sentence, unless this Agreement has been terminated in accordance
with its terms, the Company Meeting shall be convened and this Agreement shall be submitted to the stockholders of the Company at the Company Meeting for the purpose of voting on the adoption of this Agreement and the other matters contemplated
hereby as provided for in this Agreement and nothing herein shall be deemed to relieve the Company of such obligation. Except as set forth in this Section 6.3(a), the Board of Directors of the Company shall not (i) withdraw, change, qualify or
modify or publicly and affirmatively propose to withdraw, change, qualify or modify the Company Recommendation, (ii) fail to recommend against acceptance of any tender offer or exchange offer for Company Common Stock within ten (10) business days
after the commencement of such offer or (iii) approve, resolve, adopt or recommend, or propose publicly to approve, resolve, adopt or recommend, any Acquisition Proposal (any action described in clauses (i) through (iii) being referred to as a
Change in Company Recommendation
).
(b) For purposes of this Agreement, an
Intervening
Event
means any event, change, effect, development or occurrence occurring or arising after the date of this Agreement that (i) was not known, or reasonably foreseeable, to the Board of Directors of the Company as of or prior to the date
of this Agreement and did not result from a breach of this Agreement by the Company and (ii) does not relate to or involve an Acquisition Proposal.
6.4
Legal Conditions to Merger
. Subject in all respects to Section 6.1 of this Agreement, each of the Parent Entities and the
Company shall, and shall cause their respective Subsidiaries to, use their reasonable best efforts (a) to take, or cause to be taken, all actions necessary, proper or advisable to comply promptly with all legal and regulatory requirements that may
be imposed on such party or its Subsidiaries with respect to the Merger, the Bank Merger and the Holdco Merger and, subject to the conditions set forth in Article VII hereof, to consummate the transactions contemplated by this Agreement, and (b) to
obtain (and to cooperate with the other party to obtain) any material consent, authorization, order or approval of, or any exemption by, any Governmental Entity and any other third party that is required to be obtained by the Company or any of the
Parent Entities or any of their respective Subsidiaries in connection with the Merger, the Bank Merger, the Holdco Merger and the other transactions contemplated by this Agreement.
6.5
Employee Benefit Plans
.
(a) During the period commencing at the Effective Time and ending on (i) if the Closing Date occurs on or prior to
March 31 of any calendar year, December 31 of such calendar year or (ii) if the Closing Date occurs after March 31 of any calendar year, the first anniversary of the Closing Date (such period, the
Maintenance
Period
), Parent shall cause the Surviving Corporation to provide each employee of the Company and its Subsidiaries who continues to be employed by Parent or its Subsidiaries (including the Surviving Corporation and its Subsidiaries)
immediately following the Effective Time for so long as such employee is employed following the Effective Time (collectively, the
Continuing Employees
) with (i) a base salary, base wage rate or commission schedule, as
applicable, that is no less favorable than the base salary, base wage rate or commission schedule, as applicable, provided by the Company or any such Subsidiary to such Continuing Employee immediately
A-48
prior to the Effective Time, (ii) short-term cash incentive opportunities that are substantially comparable to the short-term cash incentive opportunities provided by the Company or any such
Subsidiary to such Continuing Employee immediately prior to the Effective Time, (iii) a target long-term incentive opportunity that is substantially comparable to the target long-term incentive opportunity provided by the Company or any such
Subsidiary to such Continuing Employee immediately prior to the Effective Time;
provided
that such long-term incentive opportunity may be provided in the form of unrestricted or deferred cash, or a phantom or notional equity-based incentive
program, in the sole discretion of Parent, (iv) vacation, personal and sick day entitlements that are no less favorable than the vacation, personal and sick day entitlements provided by the Company or any such Subsidiary to such Continuing Employee
immediately prior to the Effective Time and (v) retirement and other employee benefits (excluding equity and other long term incentive benefits) that are substantially comparable in the aggregate to those retirement and other employee benefits
provided by the Company or any such Subsidiary to such Continuing Employee immediately prior to the Effective Time. Without limiting the immediately preceding sentence, Parent shall, or shall cause the Surviving Corporation or one of its
Subsidiaries to, provide to each Continuing Employee whose employment terminates during the Maintenance Period with severance benefits pursuant to and in accordance with the terms of the applicable Company Benefit Plan set forth in
Section 6.5(a) of the Company Disclosure Schedule.
(b) With respect to any employee benefit plans of Parent or its
Subsidiaries in which any Continuing Employees become eligible to participate on or after the Effective Time (the
New Plans
), Parent shall or shall cause the Surviving Corporation to: (i) waive all pre-existing
conditions, exclusions, evidence of insurability (other than with respect to life insurance,
provided
that Parent will cause the applicable New Plan to provide Continuing Employees with guaranteed issue amounts thereunder), and waiting
periods with respect to participation and coverage requirements applicable to such employees and their eligible dependents under any New Plans, except to the extent such pre-existing conditions, exclusions or waiting periods would apply under the
most closely analogous Company Benefit Plan, (ii) use commercially reasonable efforts to provide each such employee and their eligible dependents with credit for any eligible expenses incurred by such employee or dependent prior to the
Effective Time under a Company Benefit Plan (to the same extent that such credit was given under the most closely analogous Company Benefit Plan prior to the Effective Time) in satisfying any applicable deductible, co-payment or out-of-pocket
requirements under any New Plans, (iii) assume all obligations to provide continued health coverage in accordance with Section 4980B of the Code and Title I, Subtitle B, Part 6 of ERISA to the qualified beneficiaries of Continuing Employees and
(iv) use commercially reasonable efforts to recognize all service of such employees with the Company and its Subsidiaries for all purposes in any New Plan to the same extent that such service was taken into account under the most closely
analogous Company Benefit Plan prior to the Effective Time;
provided
, that the foregoing service recognition shall not apply (x) to the extent it would result in duplication of benefits for the same period of services, (y) for
purposes of benefit accrual under any defined benefit pension or the employer premium subsidy under any retiree medical plan, or (z) to any benefit plan that is a frozen plan or that provides benefits to a grandfathered employee population.
(c) Parent shall, or shall cause the Surviving Corporation to, assume and
A-49
honor all Company Benefit Plans in accordance with their terms;
provided
that nothing in this Section 6.5(c) is intended to prevent Parent from amending or terminating Company Benefit
Plans in accordance with their terms. Parent hereby acknowledges that a change in control (or similar phrase) within the meaning of the Company Benefit Plans will occur at the Effective Time.
(d) The Company shall be permitted to finally and conclusively determine, in good faith, the amounts earned under the Bonus
Plans in respect of the 2016 fiscal year (such amounts, the
2016 Bonuses
) based on funding at actual performance with respect to applicable financial and non-financial performance metrics;
provided
,
however
, that
solely with respect to those Bonus Plans listed on Section 6.5(d) of the Company Disclosure Schedule, any component of the financial performance metrics that is measured based on return on equity shall be deemed to have been achieved at the greater
of actual or target performance. 2016 Bonuses shall be paid in the ordinary course of business at such time when annual bonuses have historically been paid out by the Company (the
2016 Bonus Payment Date
). To the extent
that the Closing Date occurs on or before the 2016 Bonus Payment Date, (i) Parent shall, or shall cause the Surviving Corporation to pay out 2016 Bonuses on (or promptly following) the 2016 Bonus Payment Date and (ii) without limiting any other
provision of any Company Plan, if (x) the Closing Date occurs after December 31, 2016 and (y) an employees employment is terminated by the Surviving Corporation without cause after the Closing Date but prior to the 2016 Bonus Payment Date,
then (z) notwithstanding any provision to the contrary in any such Company Plan, such employee shall be entitled to receive payment of his or her 2016 Bonus upon the 2016 Bonus Payment Date (
provided
that any such payment shall not be
duplicative of any other similar right to payment of the 2016 Bonus or a pro-rata portion thereof under any other Company Plan). If the Closing Date occurs on or after January 1, 2017, upon notice to and in consultation with Parent, the Company
shall be permitted to establish annual bonus targets, maximums and performance award levels, performance measures and eligibility and participation requirements for the 2017 fiscal year under the Bonus Plans, in the ordinary course of business
consistent with business strategy objectives.
(e) Parent and the Company shall each, and shall cause each of their
respective affiliates to, comply with all Laws regarding the maintenance, use, sharing and processing of Employee Personal Data, including (i) compliance with any applicable legal requirements to provide notice to, or obtain consent from, the
employee for processing of the data and (ii) taking any other steps necessary to ensure compliance with applicable data protection Laws.
Employee Personal Data
means any information relating to the employees of the Company or
any of its Subsidiaries that (i) is obtained by Parent or its affiliates from the Company or any of its Subsidiaries or Representatives or (ii) is created by Parent or its affiliates based on such information.
(f) Unless otherwise requested by Parent not later than ten (10) business days prior to the Closing Date, the Company shall
take all actions, including through resolutions of the Companys Board of Directors (or a duly constituted and authorized committee thereof or other appropriate governing body) that may be necessary or appropriate to cause the EverBank Profit
Sharing and Savings Plan, as amended and restated effective January 1, 2014 (the
Company 401(k) Plan
), to terminate effective on the business day
A-50
immediately preceding the Closing Date, with such termination being contingent on the Closing. Such resolutions shall be subject to Parents reasonable prior review and approval.
(g) If Parent or any of its affiliates maintains a defined contribution plan that includes a qualified cash or deferred
arrangement within the meaning of Section 401(k) of the Code (the
Parent 401(k) Plan
) and Parent elects to terminate the Company 401(k) Plan pursuant to Section 6.5(f), Parent shall permit each Continuing Employee participating in
the Company 401(k) Plan to elect, and Parent agrees to cause the Parent 401(k) Plan to accept, in accordance with applicable Law and the terms of the Parent 401(k) Plan a direct rollover (within the meaning of Section 401(a)(31) of the
Code) of his or her account balances (including earnings thereon through the date of transfer and promissory notes evidencing all outstanding loans) under the Company 401(k) Plan. Each Continuing Employee shall become a participant in the
Parent 401(k) Plan on the Closing Date (giving effect to the service crediting provisions of Section 6.5(b)); it being agreed that no Continuing Employee shall experience a gap in eligibility to participate in a tax-qualified defined contribution
plan as a result of the transactions contemplated by this Agreement.
(h) Prior to making any written broad-based
communications to the employees of the Company of its Subsidiaries with respect to employment, compensation or benefits matters addressed in this Agreement or related, directly or indirectly, to the transactions contemplated by this Agreement
(excluding any communications relating to ordinary course employment, compensation or benefits matters unrelated thereto), the Company shall provide Parent with a copy of the intended communication, Parent shall have a reasonable period of time to
review and comment on the communication and the Company shall consider Parents comments in good faith.
(i) Nothing
in this Agreement shall confer upon any employee, officer, director or consultant of the Company or any of its Subsidiaries or affiliates any right to continue in the employ or service of the Surviving Corporation, the Company, or any Subsidiary or
affiliate thereof, or shall interfere with or restrict in any way the rights of the Surviving Corporation, the Company, Parent or any Subsidiary or affiliate thereof to discharge or terminate the services of any employee, officer, director or
consultant of the Company or any of its Subsidiaries or affiliates at any time for any reason whatsoever, with or without cause. Nothing in this Agreement shall be deemed to (i) establish, amend, or modify any Company Benefit Plan, New
Plan or any other benefit or employment plan, program, agreement or arrangement, or (ii) alter or limit the ability of the Surviving Corporation or any of its Subsidiaries or affiliates to amend, modify or terminate any particular Company
Benefit Plan, New Plan or any other benefit or employment plan, program, agreement or arrangement after the Effective Time. Without limiting the generality of the final sentence of Section 9.11, nothing in this Agreement, express or implied, is
intended to or shall confer upon any person, including any current or former employee, officer, director or consultant of the Company or any of its Subsidiaries or affiliates, any right, benefit or remedy of any nature whatsoever (including the
creation of any third-party beneficiary rights) under or by reason of this Agreement.
6.6
Indemnification;
Directors
and Officers
Insurance
.
A-51
(a) From and after the Effective Time, the Surviving Corporation shall indemnify
and hold harmless, to the fullest extent permitted by applicable Law, each present and former director or officer of the Company and its Subsidiaries (in each case, when acting in such capacity) (collectively, the
Company Indemnified
Parties
) against any costs or expenses (including reasonable attorneys fees), judgments, fines, losses, damages or liabilities incurred in connection with any threatened or actual claim, action, suit, proceeding or investigation,
whether civil, criminal, administrative or investigative, whether arising before or after the Effective Time, arising in whole or in part out of, or pertaining to, the fact that such person is or was a director or officer of the Company or any of
its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another person and pertaining to matters, acts or omissions existing or occurring at or prior to the Effective Time, including
matters, acts or omissions occurring in connection with the approval of this Agreement and the transactions contemplated by this Agreement; and the Surviving Corporation shall also advance expenses as incurred by such Company Indemnified Party to
the fullest extent permitted by applicable Law;
provided
, that the Company Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Company Indemnified Party is
not entitled to indemnification. Parent and the Surviving Corporation shall reasonably cooperate with the Company Indemnified Party, and the Company Indemnified Party shall reasonably cooperate with the Parent and the Surviving Corporation, in
the defense of any such claim, action, suit, proceeding or investigation.
(b) For a period of six (6) years after the
Effective Time, the Surviving Corporation shall cause to be maintained in effect the current policies of directors and officers liability insurance maintained by the Company (
provided
, that the Surviving Corporation may substitute
therefor policies with a substantially comparable insurer of at least the same coverage and amounts containing terms and conditions which are no less advantageous to the insured) with respect to claims against the present and former officers and
directors of the Company or any of its Subsidiaries arising from facts or events which occurred at or before the Effective Time (including the approval of this Agreement and the transactions contemplated by this Agreement);
provided
, that the
Surviving Corporation shall not be obligated to expend, on an annual basis, an amount in excess of 300% of the current annual premium paid as of the date hereof by the Company for such insurance (the
Premium Cap
), and if such
premiums for such insurance would at any time exceed the Premium Cap, then the Surviving Corporation shall cause to be maintained policies of insurance which, in the Surviving Corporations good faith determination, provide the maximum coverage
available at an annual premium equal to the Premium Cap. In lieu of the foregoing, the Company, with the prior consent of Parent (not to be unreasonably withheld), may (and at the request of Parent, the Company shall use its reasonable best
efforts to) obtain at or prior to the Effective Time a six (6)-year tail policy under the Companys existing directors and officers insurance policy providing coverage equivalent to the current policies of directors and
officers liability insurance maintained by the Company as of the date hereof if and to the extent that the same may be obtained for an amount that, in the aggregate, does not exceed the Premium Cap. If the Company purchases such a
tail policy, Surviving Corporation shall maintain such tail policy in full force and effect and continue to honor its obligations thereunder.
A-52
(c) Any Company Indemnified Party wishing to claim indemnification under this
Section 6.6, upon learning of any claim, action, suit, proceeding or investigation described above, will promptly notify the Surviving Corporation;
provided
, that failure to so notify will not affect the obligations of the Surviving
Corporation under this Section 6.6 unless and to the extent that the Surviving Corporation is actually prejudiced as a consequence.
(d) The obligations of the Surviving Corporation, Parent and the Company under this Section 6.6 shall not be terminated or
modified after the Effective Time in a manner so as to adversely affect any Company Indemnified Party or any other person entitled to the benefit of this Section 6.6 without the prior written consent of the affected Company Indemnified Party or
affected person.
(e) The provisions of this Section 6.6 shall survive the Effective Time and are intended to be for the
benefit of, and shall be enforceable by, each Company Indemnified Party and his or her heirs and representatives. If the Surviving Corporation or any of its successors or assigns will consolidate with or merge into any other entity and not be
the continuing or surviving entity of such consolidation or merger, transfer all or substantially all of its assets or liabilities to any other entity or engage in any similar transaction, then in each case to the extent the obligations set forth in
this Section 6.6 are not otherwise transferred and assumed by such successors and assigns by operation of law or otherwise, the Surviving Corporation will cause proper provision to be made so that the successors and assigns of the Surviving
Corporation will expressly assume the obligations set forth in this Section 6.6.
6.7
Additional Agreements
. In case at any
time after the Effective Time any further action is necessary or desirable to carry out the purposes of this Agreement (including any merger between a Subsidiary of a Parent Entity, on the one hand, and a Subsidiary of the Company, on the other) or
to vest the Surviving Corporation with full title to all properties, assets, rights, approvals, immunities and franchises of any of the parties to the Merger, the proper officers and directors of each party to this Agreement and their respective
Subsidiaries shall take, or cause to be taken, all such necessary action as may be reasonably requested by Parent.
6.8
Advice of
Changes
. Each of the Parent Entities, on the one hand, and the Company, on the other hand (in such capacity, the
Notifying Party
), shall promptly advise the other party of any change or event (i) that has had or is
reasonably likely to have a Material Adverse Effect on the Notifying Party or (ii) which the Notifying Party believes would or would be reasonably likely to cause or constitute a material breach of any of the Notifying Partys representations,
warranties or covenants contained herein that reasonably could be expected to give rise, individually or in the aggregate, to the failure of a condition set forth in, if a Parent Entity is the Notifying Party, Section 7.1 or 7.3, or if the Company
is the Notifying Party, Section 7.1 or 7.2;
provided
, that any failure to give notice in accordance with the foregoing with respect to any breach shall not be deemed to constitute a violation of this Section 6.8 or the failure of any
condition set forth in Section 7.2 or 7.3 to be satisfied, or otherwise constitute a breach of this Agreement by the party failing to give such notice, in each case, unless the underlying breach would independently result in a failure of the
conditions set forth in Section 7.2 or 7.3 to be satisfied.
A-53
6.9
Acquisition Proposals
.
(a) The Company agrees that it will not, and will cause its Subsidiaries and its and their officers, directors, agents,
advisors and representatives (collectively,
Representatives
) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate inquiries or proposals with respect to any Acquisition Proposal,
(ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to
any Acquisition Proposal, except to notify a person that makes any inquiry with respect to an Acquisition Proposal, of the existence of the provisions of this Section 6.9(a);
provided
, that, prior to the adoption of this Agreement by the
stockholders of the Company by the Requisite Company Vote, in the event the Company receives an unsolicited
bona fide
written Acquisition Proposal after the date of this Agreement (which Acquisition Proposal did not result from a breach of
this Section 6.9) and its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisor) that such Acquisition Proposal would reasonably be expected to
result in a Superior Proposal, the Company may, and may permit its Subsidiaries and its and its Subsidiaries Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions
to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisor) that failure to take such actions would be more likely than not to
result in a violation of its fiduciary duties under applicable Law;
provided
,
further
, that, prior to providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, (x) the Company shall have entered
into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with the Company and (y)
any non-public information to be provided to such third party shall have been previously provided to Parent. The Company will, and will cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or
negotiations conducted before the date of this Agreement with any person other than any of the Parent Entities with respect to any Acquisition Proposal and the Company shall promptly request the prompt return or destruction of all confidential
information previously furnished to any such other person. The Company will promptly (and in any event within twenty-four (24) hours) advise Parent in writing of the receipt of any Acquisition Proposal or any inquiry which could reasonably be
expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), and will keep Parent reasonably apprised of any related
developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal. The Company shall use its reasonable best efforts to enforce any existing
confidentiality, standstill or similar agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. The Company shall not, and shall cause its representatives not to on its behalf, enter into any binding
acquisition agreement, merger agreement or other definitive transaction agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.9(a)) relating to any Acquisition Proposal. As used in this
Agreement,
Acquisition Proposal
shall mean, other than the transactions contemplated by this Agreement, any offer or proposal relating to any
A-54
third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 20% or more of the consolidated assets of the Company and its Subsidiaries or 20% or more of any
class of equity or voting securities of the Company or one or more of its Subsidiaries whose assets, individually or in the aggregate, constitute more than 20% of the consolidated assets of the Company, (ii) any tender offer (including a self-tender
offer) or exchange offer that, if consummated, would result in such third party beneficially owning 20% or more of any class of equity or voting securities of the Company or one or more of its Subsidiaries whose assets, individually or in the
aggregate, constitute more than 20% of the consolidated assets of the Company, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving
the Company or one or more of its Subsidiaries whose assets, individually or in the aggregate, constitute more than 20% of the consolidated assets of the Company.
(b) As used in this Agreement,
Superior Proposal
means a
bona fide
unsolicited written Acquisition
Proposal (substituting 50% for 20% in the definition thereof) which the Board of Directors has determined in good faith, after consultation with outside counsel and financial advisors, taking into account all relevant legal,
financial, regulatory and other aspects of such offer or proposal and the person making the proposal, that, (i) if consummated, would be more favorable to the holders of Company Common Stock, from a financial point of view, than the transactions
contemplated by this Agreement (after taking into account any proposed revisions to the terms of this Agreement) and (ii) is more likely than not to be completed on the terms proposed on a timely basis.
(c) Nothing contained in this Agreement shall prevent the Company or its Board of Directors from complying with
Rules 14d-9 and 14e-2 under the Exchange Act or Item 1012(a) of Regulation M-A with respect to an Acquisition Proposal or from making any legally required disclosure to the Companys stockholders;
provided
, that such Rules will in
no way eliminate or modify the effect that any action pursuant to such Rules would otherwise have under this Agreement.
6.10
Public
Announcements
. The Company and Parent shall each use their reasonable best efforts to develop a joint communications plan to ensure that all press releases and other public statements with respect to the transactions contemplated
hereby shall be consistent with such joint communications plan and, except as required by applicable Law or by obligations pursuant to any listing agreement with or rules of any securities exchange, to consult with each other before issuing any
press release or, to the extent practical, otherwise making any public statement with respect to this Agreement or the transactions contemplated hereby.
6.11
Change of Method
.
(a) The Company and Parent shall be empowered, at any time prior to the Effective Time, to change the method or structure of
effecting the Merger (including the provisions of Article I), if and to the extent they both deem such change to be necessary, appropriate or desirable;
provided
, that no such change that requires any approval of the holders of the Company
Common Stock shall be made without (or without being subject to) such approval. The parties agree to reflect any such change in an appropriate amendment to this Agreement executed by both parties in accordance with Section 9.2.
A-55
(b) Parent shall be empowered, at any time prior to the Effective Time, to (i)
change the structure of effecting the Bank Merger so that Parent Bank would be the surviving entity and/or the Holdco Merger so that Owner would be the surviving entity or (ii) elect not to consummate the Holdco Merger, in each case so long as no
such change would reasonably be expected to (x) materially impede or materially delay the consummation of the transactions contemplated by this Agreement or (y) adversely affect the Tax treatment of the Companys stockholders pursuant to this
Agreement. If Parent elects not to consummate the Holdco Merger, references in this Agreement to the Holdco Merger shall be disregarded. For purposes of the representations and warranties in Article III, it shall be assumed that Owner is
the surviving entity in the Holdco Merger and Parent Bank is the surviving entity in the Bank Merger. For purposes of the representations and warranties in Article IV, it shall be assumed that the Surviving Corporation is the surviving entity
in the Holdco Merger and Company Bank is the surviving entity in the Bank Merger.
6.12
Restructuring Efforts
. Without
limiting Section 8.1(e), if the Company shall have failed to obtain the Requisite Company Vote at the duly convened Company Meeting, or any adjournment or postponement thereof, each of the parties shall in good faith use its reasonable best efforts
to negotiate a restructuring of the transactions contemplated by this Agreement (
it
being
understood
that none of the parties shall have any obligation to alter or change any material terms, including the Merger Consideration,
the amount or kind of the consideration to be issued to holders of the capital stock or equity rights of the Company as provided for in this Agreement, in a manner adverse to such party or the Companys stockholders) and/or resubmit this
Agreement and/or the transactions contemplated hereby (or as restructured pursuant to this Section 6.12) for adoption or approval, as applicable, by its stockholders.
6.13
Takeover Statutes
. None of the Company, the Parent Entities or their respective Boards of Directors shall take any action
that would cause any Takeover Statute to become applicable to this Agreement, the Merger or any of the other transactions contemplated hereby, and each shall take all necessary steps to exempt (or ensure the continued exemption of) the Merger and
the other transactions contemplated hereby from any applicable Takeover Statute now or hereafter in effect. If any Takeover Statute may become, or may purport to be, applicable to the transactions contemplated hereby, each party and the members
of their respective Boards of Directors will grant such approvals and take such actions as are necessary so that the transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms contemplated hereby and
otherwise act to eliminate or minimize the effects of any Takeover Statute on any of the transactions contemplated by this Agreement, including, if necessary, challenging the validity or applicability of any such Takeover Statute.
6.14
Rule 16b-3
. Prior to the Effective Time, the Company shall take such steps as may be reasonably necessary or advisable to
cause dispositions of Company equity securities (including derivative securities) pursuant to the transactions contemplated by this Agreement by each individual who is a director or officer of the Company to be exempt under Rule 16b-3 promulgated
under the Exchange Act.
6.15
Stock Exchange Delisting
. Prior to the Closing Date, the Company shall cooperate with Parent and
use reasonable best efforts to take, or cause to be taken, all actions,
A-56
and do or cause to be done all things, reasonably necessary, proper or advisable on its part under applicable Laws and rules and policies of the New York Stock Exchange to enable the delisting by
the Surviving Corporation of the Company Stock from the New York Stock Exchange and the deregistration of the Company Stock under the Exchange Act as promptly as practicable after the Effective Time.
6.16
Stockholder Litigation
. The Company shall cooperate and consult with the Parent Entities in the defense or settlement of any
stockholder litigation against the Company and/or its directors or affiliates relating to the transactions contemplated by this Agreement and shall afford the Parent Entities the opportunity to participate at their own expense in the defense or
settlement of any such litigation, and no such settlement shall be offered or agreed to without Parents prior written consent, which consent shall not be unreasonably withheld. In furtherance of and without in any way limiting the
foregoing, the Company shall use reasonable best efforts (without unreasonable expense) to prevail or settle on terms reasonably satisfactory to Parent in any such litigation so as to permit the consummation of the Merger in the manner contemplated
by this Agreement.
6.17
Transition
. Commencing following the date hereof, and in all cases subject to applicable Law, the
Company shall, and shall cause its Subsidiaries to, cooperate with Parent and its Subsidiaries to facilitate the integration of the parties and their respective businesses effective as of the Closing Date or such later date as may be determined by
Parent. Without limiting the generality of the foregoing, from the date hereof through the Closing Date and consistent with the performance of their day-to-day operations and the continuous operation of the Company and its Subsidiaries in the
ordinary course of business, the Company shall cause the employees, officers and representatives of the Company and its Subsidiaries to use their commercially reasonable efforts to provide support, including support from its outside contractors and
vendors, as well as data and records access, and take actions and assist Parent in performing all tasks, including conversion planning, assisting in any post-closing divestiture, post-closing equipment installation, training, the provision of
customer communications and notices (including joint communications and notices relating to anticipated account changes, branch closures, divestiture and/or systems conversion), and other matters reasonably required to result in a successful
transition and integration at the Closing or such later date as may be determined by Parent. Nothing contained in this Section 6.17 shall give Parent, directly or indirectly, any right to control or direct the operations of the Company and its
Subsidiaries prior to the Closing.
6.18
Employee Cooperation
. Between the date of this Agreement and the Closing Date, the
Company shall use commercially reasonable efforts to (a) assist Parent in identifying key employees of the Company and its Subsidiaries (such employees as are so identified by Parent,
Key Employees
), including providing any
information as reasonably requested by Parent about individual employees and groups of employees with respect to their roles, job descriptions, performance, compensation levels, retention risk factors and other similar information and (b) to the
extent requested by Parent, cooperate in good faith with Parent to help establish and implement, on behalf of Parent, any employee retention and transition incentive programs designed to encourage the retention and performance of Key Employees and
(c) ensure that no executive officer of, or written communication by, the Company or its Subsidiaries disparages Parent or any of its affiliates in any way or interferes with Parents retention efforts
A-57
with respect to employees of the Company and its Subsidiaries.
6.19
Certain
Indebtedness
. As soon as reasonably practicable after the receipt of any written request by Parent to do so, the Company shall use its reasonable best efforts to commence an offer to purchase related to any or all of the outstanding
aggregate principal amount and all other amounts due in respect of any notes (the
Notes
) of the Company issued pursuant to the Indenture, dated as of June 30, 2015, by and between the Company and Wells Fargo, N.A., as Trustee (as
amended, modified or supplemented, the
Indenture
), on such terms and conditions, including pricing terms, that are specified and requested, from time to time, by Parent (the
Debt Tender Offer
), and Parent shall
assist the Company in connection therewith;
provided
that (x) Parent shall only request the Company to conduct a Debt Tender Offer in compliance with the Indenture and the rules and regulations of the SEC, including Rule 14e-1 under the
Exchange Act, and (y) the Company shall not be required to take any action in connection with a Debt Tender Offer if such action would violate applicable Law. Notwithstanding the foregoing, the closing of any Debt Tender Offer shall be conditioned
on the occurrence of the Closing and obtaining any required regulatory approvals with respect to such Debt Tender Offer, and the parties shall use their respective reasonable best efforts to cause any such Debt Tender Offer to close on the Closing
Date or as soon as reasonably possible thereafter. Subject to the preceding sentence, the Company shall provide, and shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause its and their respective Representatives
to, provide all cooperation reasonably requested by Parent in connection with any Debt Tender Offer, including preparing the offer to purchase and letter of transmittal and engaging a dealer manager and information agent selected by Parent in
connection with any such Debt Tender Offer. The Company (i) shall waive any of the conditions to any Debt Tender Offer (other than the occurrence of the Closing) and make any change to any Debt Tender Offer, in each case, as may be reasonably
requested by Parent and (ii) shall not, without the written consent of Parent, waive any condition to any Debt Tender Offer or make any changes to any Debt Tender Offer. Parent shall ensure that at the Effective Time the Surviving Corporation
has all funds necessary to pay for such notes that have been properly tendered and not withdrawn pursuant to any Debt Tender Offer commenced pursuant to this Section 6.19. Parent shall reimburse the Company for all reasonable out-of-pocket
costs incurred by the Company in connection with its compliance with this Section 6.19. For the avoidance of doubt, the failure of any Debt Tender Offer shall not affect the obligations of the Parent Entities and Merger Sub to consummate the
transactions contemplated hereby.
ARTICLE VII
CONDITIONS PRECEDENT
7.1
Conditions to Each Party
s Obligation to Effect the Merger
. The respective obligations of the parties to effect the Merger shall be subject to the satisfaction at or prior to the Effective Time of the following
conditions:
(a)
Stockholder Approval
. This Agreement shall have been adopted by the stockholders of the
Company by the Requisite Company Vote.
(b)
No Injunctions or Restraints; Illegality
. No order, injunction or
decree
A-58
issued by any court or agency of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Merger, the Bank Merger, the Holdco Merger or any of the other
transactions contemplated by this Agreement shall be in effect. No statute, rule, regulation, order, injunction or decree shall have been enacted, entered, promulgated or enforced by any Governmental Entity or otherwise be in effect which
prohibits or makes illegal consummation of the Merger, the Bank Merger or the Holdco Merger.
7.2
Conditions to Obligations of
the Parent Entities and Merger Sub
. The obligation of each of the Parent Entities and Merger Sub to effect the Merger is also subject to the satisfaction, or waiver by Parent, at or prior to the Effective Time, of the following
conditions:
(a)
Representations and Warranties
. The representations and warranties of the Company set forth in
Sections 3.2(a), 3.2(b) (with respect to Company Bank) and 3.8(a) (in each case after giving effect to the lead in to Article III) shall be true and correct (other than, in the case of Sections 3.2(a) and 3.2(b) (with respect to Company Bank), such
failures to be true and correct as are
de minimis
) as of the date of this Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of the Closing Date as though made on and as of the Closing
Date, and the representations and warranties of the Company set forth in Sections 3.1, 3.2(b) (with respect to any material Subsidiary of the Company, other than Company Bank), 3.2(c), 3.3(a), 3.3(b)(i), 3.7, 3.21 and 3.22 (in each case, after
giving effect to the lead in to Article III) shall be true and correct in all material respects (or, if the representation and warranty is qualified by a materiality or Material Adverse Effect qualifier, in all respects) as of the date of this
Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of the Closing Date as though made on and as of the Closing Date. All other representations and warranties of the Company set forth in this
Agreement (read without giving effect to any qualification as to materiality or Material Adverse Effect set forth in such representations or warranties but, in each case, after giving effect to the lead in to Article III) shall be true and correct
in all respects as of the date of this Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of the Closing Date as though made on and as of the Closing Date;
provided
, that for purposes of
this sentence, such representations and warranties shall be deemed to be true and correct unless the failure or failures of such representations and warranties to be so true and correct, either individually or in the aggregate, and without giving
effect to any qualification as to materiality or Material Adverse Effect set forth in such representations or warranties, has had or would reasonably be expected to have a Material Adverse Effect on the Company or the Surviving
Corporation. Parent shall have received a certificate signed on behalf of the Company by the Chief Executive Officer and the Chief Financial Officer of the Company to the foregoing effects.
(b)
Performance of Obligations of the Company
. The Company shall have performed in all material respects the
obligations required to be performed by it under this Agreement at or prior to the Closing Date, and Parent shall have received a certificate signed on behalf of the Company by the Chief Executive Officer and the Chief Financial Officer of the
Company to such effect.
(c)
Regulatory Approvals; Materially Burdensome Regulatory
Condition
.
A-59
All Requisite Regulatory Approvals shall have been obtained and shall remain in full force and effect and all statutory waiting periods in respect thereof shall have expired, and no such
Requisite Regulatory Approval shall impose any term or condition that would constitute, either individually or in the aggregate, a Materially Burdensome Regulatory Condition.
(d)
Dissenting Stockholders
. Holders of not more than 15% of the outstanding Company Common Stock shall have duly
exercised their dissenters rights under Section 262 of the DGCL.
(e)
Bank Merger
. All conditions to the
consummation of the Bank Merger (other than the consummation of the Merger and the Holdco Merger) shall have been and remain satisfied, or then be capable of satisfaction, and Parent shall be reasonably satisfied that the Bank Merger can occur
immediately after the Merger or, if the Holdco Merger is taking place immediately after the Merger, immediately after the Holdco Merger, or at such other time thereafter as Parent may choose.
7.3
Conditions to Obligations of
the Company
. The obligation of the Company to effect the Merger is also subject to the
satisfaction, or waiver by the Company, at or prior to the Effective Time, of the following conditions:
(a)
Representations and Warranties
. The representations and warranties of each of the Parent Entities set forth in this Agreement shall be true and correct in all material respects as of the date of this Agreement and (except to the extent
such representations and warranties speak as of an earlier date) as of the Closing Date as though made on and as of the Closing Date. The Company shall have received a certificate signed on behalf of Parent by the Chief Executive Officer and
the Chief Financial Officer of Parent to the foregoing effect.
(b)
Performance of Obligations of the Parent Entities
and Merger Sub
. Each of the Parent Entities and Merger Sub shall have performed in all material respects the obligations required to be performed by it under this Agreement at or prior to the Closing Date, and the Company shall have
received a certificate signed on behalf of Parent by the Chief Executive Officer and the Chief Financial Officer of Parent to such effect.
(c)
Regulatory Approvals
. All Requisite Regulatory Approvals shall have been obtained and shall remain in full
force and effect and all statutory waiting periods in respect thereof shall have expired.
ARTICLE VIII
TERMINATION
8.1
Termination
. This Agreement may be terminated at any time prior to the Effective Time, whether before or after adoption of this Agreement by the stockholders of the Company:
(a) by the mutual consent of Parent and the Company in a written instrument, if the Board of Directors of each so determines by
a vote of a majority of the members of its entire Board;
A-60
(b) by either Parent or the Company if any Governmental Entity that must grant a
Requisite Regulatory Approval has denied approval of the Merger, the Bank Merger or the Holdco Merger and such denial has become final and nonappealable or any Governmental Entity of competent jurisdiction shall have issued a final nonappealable
order permanently enjoining or otherwise prohibiting or making illegal the consummation of the Merger, the Bank Merger or the Holdco Merger;
provided
that if the failure to obtain a Requisite Regulatory Approval shall be due to the failure of
the party seeking to terminate this Agreement to perform or observe the covenants and agreements of such party set forth herein, such party shall not be permitted to terminate this Agreement pursuant to this Section 8.1(b);
(c) by either Parent or the Company if the Merger shall not have been consummated on or before the fifteenth (15
th
) month anniversary of the date of this Agreement (the
Termination Date
);
provided
that if the failure of the Closing to occur by such date shall be due to the failure
of the party seeking to terminate this Agreement to perform or observe the covenants and agreements of such party set forth herein such party shall not be permitted to terminate this Agreement pursuant to this Section 8.1(c);
(d) by either Parent or the Company (
provided
, that the terminating party is not then in material breach of any
representation, warranty, covenant or other agreement contained herein) if there shall have been a breach of any of the covenants or agreements or any of the representations or warranties (or any such representation or warranty shall cease to be
true) set forth in this Agreement on the part of the Company, in the case of a termination by Parent, or any Parent Entity or Merger Sub, in the case of a termination by the Company, which breach or failure to be true, either individually or in the
aggregate with all other breaches by such party (or failures of such representations or warranties to be true), would constitute, if occurring or continuing on the Closing Date, the failure of a condition set forth in Section 7.2, in the case of a
termination by Parent, or Section 7.3, in the case of a termination by the Company, and which is not cured within thirty (30) days (or such fewer days as remain prior to the Termination Date) following written notice to the Company, in the case of a
termination by Parent, or Parent, in the case of a termination by the Company, or by its nature or timing cannot be cured during such period;
(e) by either Parent or the Company if the Company Meeting (including any adjournments or postponements thereof) shall have
concluded and the Requisite Company Vote shall not have been obtained;
(f) by Parent prior to such time as the Requisite
Company Vote is obtained, if (i) the Board of Directors of the Company shall have (A) failed to recommend in the Proxy Statement that the stockholders of the Company adopt this Agreement, (B) effected a Change in Company Recommendation,
(C) failed to issue a press release announcing its opposition to an Acquisition Proposal within ten (10) business days after such Acquisition Proposal is publicly announced or (D) submitted this Agreement to the holders of Company Common Stock for
approval without a recommendation for approval or (ii) the Company or its Board of Directors has breached its obligations under Section 6.3 or 6.9 in any material respect;
(g) by Parent, if the Federal Reserve Board or the OCC has granted a
A-61
Requisite Regulatory Approval but such Requisite Regulatory Approval contains or would result in the imposition of a Materially Burdensome Regulatory Condition and there is no meaningful
possibility that such Requisite Regulatory Approval could be revised prior to the Termination Date so as not to contain or result in a Materially Burdensome Regulatory Condition;
provided
that if (i) Parent does not elect to terminate this
Agreement within 60 days following any such termination right arising under this Section 8.1(g) and (ii) Parent has not by the end of such 60 day period waived the Materially Burdensome Regulatory Condition with respect to which such termination
right arose, then the Company may terminate this Agreement pursuant to this Section 8.1(g);
provided
,
further
, that, if during the 60 day period referred to in the preceding proviso any new material condition or restriction is imposed
by a Governmental Entity (regardless of whether such new condition or restriction would itself constitute a Materially Burdensome Regulatory Condition) such 60 day period shall be extended until 60 days after such new condition or restriction was
imposed with there being no meaningful possibility that such new condition or restriction would be revised prior to the Termination Date so as not to be a material condition or restriction; or
(h) by either Parent or the Company if the Federal Reserve Board or the OCC shall have requested in writing that the Company,
Parent or any of their respective affiliates withdraw (other than for technical reasons), and not be permitted to resubmit within 60 days, any application with respect to a Requisite Regulatory Approval.
The party desiring to terminate this Agreement pursuant to clause (b), (c), (d), (e), (f), (g) or (h) of this Section 8.1 shall give written notice of such
termination to the other party in accordance with Section 9.5, specifying the provision or provisions hereof pursuant to which such termination is effected.
8.2
Effect of Termination
.
(a) In the event of termination of this Agreement by either Parent or the Company as provided in Section 8.1, this Agreement
shall forthwith become void and have no effect, and none of the Parent Entities, the Company, any of their respective affiliates or any of the officers or directors of any of them shall have any liability of any nature whatsoever hereunder, or in
connection with the transactions contemplated hereby, except that (i) Section 6.2(b), this Section 8.2 and Article IX (
provided
that in such event Section 9.12 shall, for the avoidance of doubt, survive only with respect to the other
surviving provisions) shall survive any termination of this Agreement and (ii) notwithstanding anything to the contrary contained in this Agreement, none of the Parent Entities, Merger Sub or the Company shall be relieved or released from any
liabilities or damages arising out of its fraud or its willful and material breach of any provision of this Agreement (which, in the case of the Company, shall include the loss to the holders of Company Stock of the economic benefits of the Merger,
including the loss of the premium offered to the holders of Company Common Stock,
it
being
understood
that the Company shall be entitled to pursue damages for such losses and to enforce the right to recover such losses on behalf
of its stockholders in its sole and absolute discretion, and any amounts received by the Company in connection therewith may be retained by the Company).
(b) In the event that:
A-62
(i) (x) prior to the Effective Time and after the date hereof, any person shall
have made an Acquisition Proposal, which proposal has been publicly disclosed or made known to management of Company or its stockholders generally, or any person shall have publicly announced or made known to management of Company an intention
(whether or not conditional) to make an Acquisition Proposal, (y) thereafter this Agreement is terminated by either party pursuant to Section 8.1(c) without the Requisite Company Vote having been obtained or Section 8.1(e) or by Parent pursuant to
Section 8.1(d) and (z) within twelve (12) months after the termination of this Agreement, the Company enters into a definitive agreement or consummates a transaction with respect to an Acquisition Proposal (whether or not the same Acquisition
Proposal as that referred to above);
provided
that, for purposes of this Section 8.2(b)(i), all references in the definition of Acquisition Proposal to 20% shall instead refer to 50%; or
(ii) this Agreement is terminated by Parent pursuant to Section 8.1(f);
then the Company shall pay Parent a fee, in immediately available funds, in the amount of $93,200,000 (the
Termination Fee
) upon, in the
case of Section 8.2(b)(i), the earlier of the date it enters into the applicable definitive agreement and the date of the consummation of such transaction, and in the case of Section 8.2(b)(ii), as promptly as practicable after (and in any event
within two (2) business days of) the termination of this Agreement. In no event shall the Company be obligated to pay Parent the Termination Fee on more than one occasion.
(c) The Company and Parent acknowledge that the agreements contained in this Section 8.2 are an integral part of the
transactions contemplated by this Agreement, and that, without these agreements, the Parent Entities would not enter into this Agreement. The amounts payable by the Company pursuant to Section 8.2(b) constitute liquidated damages and not a
penalty and, except in the case of fraud or a willful and knowing breach, shall be the sole monetary remedy in a circumstance where the Termination Fee is payable and is paid in full. In the event that the Company fails to pay when due any
amounts payable under Section 8.2(b), then the Company shall (i) reimburse Parent for all costs and expenses (including disbursements and reasonable fees of counsel) incurred in connection with the collection of such overdue amount and (ii) pay
Parent interest on such overdue amount (for the period commencing as of the date that such overdue amount was originally required to be paid and ending on the date that such overdue amount is actually paid in full) at a rate per annum equal to the
prime rate published in
The Wall Street Journal
on the date such payment was required to be made.
ARTICLE IX
GENERAL PROVISIONS
9.1
Nonsurvival of Representations, Warranties and Agreements
. None of the representations, warranties, covenants and agreements in this Agreement or in any instrument delivered pursuant to this Agreement (other than the Confidentiality
Agreement, which shall survive in accordance with its terms) shall survive the Effective Time, except for Section 6.6 and for those other covenants and agreements contained herein and therein which by their terms are to be performed in whole or in
part after the Effective Time.
A-63
9.2
Amendment
. Subject to compliance with applicable Law, this Agreement may be
amended by the parties hereto, by action taken or authorized by their respective Boards of Directors, at any time before or after approval of the matters presented in connection with the Merger by the stockholders of the Company;
provided
,
that after adoption of this Agreement by the stockholders of the Company, there may not be, without further approval of such stockholders, any amendment of this Agreement that requires further approval under applicable Law. This Agreement may
not be amended, modified or supplemented in any manner, whether by course of conduct or otherwise, except by an instrument in writing specifically designated as an amendment hereto, signed on behalf of each of the parties hereto.
9.3
Extension; Waiver
. At any time prior to the Effective Time, the parties hereto may, to the extent legally allowed, (a) extend
the time for the performance of any of the obligations or other acts of the other parties hereto, (b) waive any inaccuracies in the representations and warranties contained herein or in any document delivered pursuant hereto, and (c) waive
compliance with any of the agreements or satisfaction of any conditions contained herein;
provided
, that after adoption of this Agreement by the stockholders of the Company, there may not be, without further approval of such stockholders, any
extension or waiver of this Agreement or any portion thereof that requires further approval under applicable Law. Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in a written
instrument signed on behalf of such party, but such extension or waiver or failure to insist on strict compliance with an obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent or
other failure.
9.4
Expenses
. Except as otherwise provided in Section 8.2, all costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be paid by the party incurring such expense.
9.5
Notices
. All
notices and other communications hereunder shall be in writing and shall be deemed duly given (a) on the date of delivery if delivered personally, or if by facsimile, upon confirmation of receipt, or if by e-mail so long as such e-mail states it is
a notice delivered pursuant to this Section 9.5 and a duplicate copy of such e-mail is promptly given by one of the other methods described in this Section 9.5, (b) on the first business day following the date of dispatch if delivered utilizing a
next-day service by a recognized next-day courier or (c) on the earlier of confirmed receipt or the fifth (5
th
) business day following the date of mailing if delivered by registered or certified
mail, return receipt requested, postage prepaid. All notices hereunder shall be delivered to the addresses set forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice:
(a) if to the Company, to:
EverBank Financial Corp
501 Riverside Avenue
Jacksonville, FL 32202
|
Attention:
|
James Hubbard, Executive Vice President,
General Counsel and Secretary
|
|
Facsimile:
|
(904) 623-8100
|
|
E-mail:
|
James.Hubbard@EverBank.com
|
A-64
With a copy (which shall not constitute notice) to:
Sullivan & Cromwell LLP
125 Broad Street
New York, NY 10004
|
Attention:
|
H. Rodgin Cohen
|
|
Facsimile:
|
(212) 291-9028
|
|
E-mail:
|
cohenhr@sullcrom.com
|
and
(b) if to any of the Parent Entities or Merger Sub, to:
Teachers Insurance and Annuity Association of America
730 Third Avenue
New York, NY 10017
|
Attention:
|
J. Keith Morgan
|
|
Facsimile:
|
(212) 916-4840
|
|
E-mail:
|
Keith.Morgan@tiaa.org
|
With a copy (which shall not constitute notice) to:
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, NY 10017
|
Attention:
|
John L. Douglas
|
|
Facsimile:
|
(212) 701-5800
|
|
E-mail:
|
john.douglas@davispolk.com
|
|
|
william.taylor@davispolk.com
|
9.6
Interpretation
. The parties have participated
jointly in negotiating and drafting this Agreement. In the event that an ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof
shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement. When a reference is made in this Agreement to Articles, Sections, Exhibits or Schedules, such reference shall be to an Article or
Section of or Exhibit or Schedule to this Agreement unless otherwise indicated. The table of contents and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this
Agreement. Whenever the words include, includes or including are used in this Agreement, they shall be deemed to be followed by the words without limitation. References to the date
hereof shall mean the date of this Agreement. As used in this
A-65
Agreement, the
knowledge
of the Company means the knowledge of any of the officers of the Company listed in Section 9.6 of the Company Disclosure Schedule after due inquiry,
and the
knowledge
of any Parent Entity means the knowledge of any of the officers of the Parent Entities listed in Section 9.6 of the Parent Disclosure Schedule after due inquiry. As used herein, (i)
business
day
means any day other than a Saturday, a Sunday or a day on which banks in New York, New York are authorized by law or executive order to be closed, (ii)
person
means any individual, corporation (including
not-for-profit),
general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, Governmental Entity or other entity of any
kind or nature, (iii) an
affiliate
of a specified person is any person that directly or indirectly controls, is controlled by, or is under common control with, such specified person, (iv)
made available
(and
similar expressions) means any document or other information that was (A) delivered by one party or its representatives to the other party or its representatives prior to the date hereof, (B) included in the virtual data room of a party at least two
(2) business days prior to the date hereof or (C) in the case of the Company only, filed by the Company with the SEC and publicly available on EDGAR prior to the date hereof, (v) the
transactions contemplated hereby
and
transactions contemplated by this Agreement
shall include the Merger, the Bank Merger and the Holdco Merger and (vi)
ordinary course of business
means ordinary course of business consistent with past practice,
whether or not the words consistent with past practice appear therein. The Company Disclosure Schedule and the Parent Disclosure Schedule, as well as all other schedules and all exhibits hereto, shall be deemed part of this
Agreement and included in any reference to this Agreement. All references to
dollars
or
$
in this Agreement are to United States dollars. This Agreement shall not be interpreted or construed to require any
person to take any action, or fail to take any action, if to do so would violate any applicable Law. References to any statute or regulation refer to such statute or regulation as amended, modified, supplemented or replaced from time to time
(and, in the case of statutes, include any rules and regulations promulgated under the statute) and references to any section of any statute or regulation include any successor to such section.
9.7
Counterparts
. This Agreement may be executed in two or more counterparts (including by facsimile or other electronic means)
all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each of the parties and delivered to the other parties,
it
being
understood
that all parties need not
sign the same counterpart.
9.8
Entire Agreement
. This Agreement (including the documents and the instruments referred to
herein) together with the Confidentiality Agreement constitutes the entire agreement among the parties and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof.
9.9
Governing Law; Jurisdiction
.
(a) This Agreement shall be governed and construed in accordance with the laws of the State of Delaware, without regard to any
applicable conflicts of law.
(b) Each party agrees that it will bring any action or proceeding in respect of any claim
arising out of or related to this Agreement or the transactions contemplated hereby exclusively in any federal or state court located in the State of Delaware (the
Chosen
A-66
Courts
), and, solely in connection with claims arising under this Agreement or the transactions that are the subject of this Agreement, (i) irrevocably submits to the exclusive
jurisdiction of the Chosen Courts, (ii) waives any objection to laying venue in any such action or proceeding in the Chosen Courts, (iii) waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any
party and (iv) agrees that service of process upon such party in any such action or proceeding will be effective if notice is given in accordance with Section 9.5.
9.10
Waiver of Jury Trial
. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY
TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY
OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT: (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) EACH
PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.10.
9.11
Assignment; Third Party Beneficiaries
. Neither this Agreement nor any of the rights, interests or obligations contained
herein shall be assigned by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent of the other parties. Any purported assignment in contravention hereof shall be null and void. Subject to
the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective permitted successors and assigns. Except as otherwise specifically provided in Section 6.6, which is
intended to benefit each Company Indemnified Party and his or her heir and representatives, this Agreement (including the documents and instruments referred to herein) is not intended to, and does not, confer upon any person other than the parties
hereto any rights or remedies hereunder, including the right to rely upon the representations and warranties set forth herein. The representations and warranties in this Agreement are the product of negotiations among the parties hereto and are
for the sole benefit of the parties. Any inaccuracies in such representations and warranties are subject to waiver by the parties hereto in accordance herewith without notice or liability to any other person. In some instances, the
representations and warranties in this Agreement may represent an allocation among the parties hereto of the risks associated with particular matters regardless of the knowledge of any of the parties hereto. Consequently, persons other than the
parties may not rely upon the representations and warranties in this Agreement as characterizations of actual facts or circumstances as of the date of this Agreement or as of any other date.
9.12
Specific Performance
. The parties hereto agree that irreparable damage would occur if any provision of this Agreement were
not performed in accordance with its
A-67
specific terms or otherwise breached. Accordingly, the parties shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of
this Agreement or to enforce specifically the performance of the terms and provisions hereof (including the parties obligation to consummate the Merger), in addition to any other remedy to which they are entitled at law or in equity. Each
of the parties hereby further waives (a) any defense in any action for specific performance that a remedy at law would be adequate and (b) any requirement under any Law to post security or a bond as a prerequisite to obtaining equitable relief.
9.13
Severability
. Whenever possible, each provision or portion of any provision of this Agreement shall be interpreted in such
manner as to be effective and valid under applicable Law, but if any provision or portion of any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable Law or rule in any jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other provision or portion of any provision in such jurisdiction, and this Agreement shall be reformed, construed and enforced in such jurisdiction such that the invalid, illegal or
unenforceable provision or portion thereof shall be interpreted to be only so broad as is enforceable.
9.14
Delivery by Facsimile or
Electronic Transmission
. This Agreement and any signed agreement or instrument entered into in connection with this Agreement, and any amendments or waivers hereto or thereto, to the extent signed and delivered by means of a facsimile machine or
by e-mail delivery of a .pdf format data file, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version
thereof delivered in person. No party hereto or to any such agreement or instrument shall raise the use of a facsimile machine or
e-mail
delivery of a .pdf format data file to deliver a
signature to this Agreement or any amendment hereto or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a facsimile machine or
e-mail
delivery of a
.pdf format data file as a defense to the formation of a contract and each party hereto forever waives any such defense.
[
Signature Pages Follow
]
A-68
IN WITNESS WHEREOF, Parent, Owner, Merger Sub and the Company have caused this Agreement to be
executed by their respective officers thereunto, duly authorized as of the date first above written.
|
|
|
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA
|
|
|
By:
|
|
/s/ Roger Ferguson
|
|
|
Name: Roger Ferguson
|
|
|
Title: President and Chief Executive Officer
|
[
Signature Page to
Agreement and Plan of Merger
]
|
|
|
TCT HOLDINGS, INC.
|
|
|
By:
|
|
/s/ Andrew Svarre
|
|
|
Name: Andrew Svarre
|
|
|
Title: Assistant Secretary
|
[
Signature Page to
Agreement and Plan of Merger
]
|
|
|
DOLPHIN SUB CORPORATION
|
|
|
By:
|
|
/s/ A. Roger Marinzoli
|
|
|
Name: A. Roger Marinzoli
|
|
|
Title: President
|
[
Signature Page to
Agreement and Plan of Merger
]
|
|
|
EVERBANK FINANCIAL CORP
|
|
|
By:
|
|
/s/ Robert M. Clements
|
|
|
Name: Robert M. Clements
|
|
|
Title: Chairman and Chief Executive Officer
|
[
Signature Page to
Agreement and Plan of Merger
]
EXHIBIT A
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this
Agreement
), dated as of [●], 2016, is made by and between TIAA-CREF Trust
Company, FSB, a federal savings association (
Parent Bank
), and EverBank, a federal savings association (
Company Bank
).
WITNESSETH:
WHEREAS,
Parent Bank, a wholly owned subsidiary of TCT Holdings, Inc., a Delaware corporation (
Owner
), is a chartered federal savings association;
WHEREAS, Company Bank, a wholly owned subsidiary of EverBank Financial Corp, a Delaware corporation (the
Company
), is a
chartered federal savings association;
WHEREAS, Owner, the Company, Teachers Insurance and Annuity Association of America, a New York
stock life insurance company (
Parent
), and Dolphin Sub Corporation, a Delaware corporation and wholly owned subsidiary of Owner (
Merger Sub
), have entered into an Agreement and Plan of Merger, dated as of August
7, 2016 (as amended from time to time, the
Parent Merger Agreement
), which, subject to the terms and conditions thereof, provides for the merger of Merger Sub with and into the Company (the
Parent Merger
), with
the Company as the surviving company in the Parent Merger;
WHEREAS, contingent upon the Parent Merger and, subject to the terms and
conditions set forth in the Parent Merger Agreement (including Section 6.11(b) thereof), immediately following the time at which the Parent Merger becomes effective, Owner will merge with and into the Company (the
Holdco Merger
),
with the Company as the surviving company in the Holdco Merger;
WHEREAS, contingent upon the Parent Merger and immediately following the
time at which the Holdco Merger becomes effective (or, in the event that Parent elects not to consummate the Holdco Merger pursuant to Section 6.11(b) of the Parent Merger Agreement, immediately following the time at which the Parent Merger becomes
effective), on the terms and subject to the conditions contained in this Agreement, the parties to this Agreement intend to effect the merger of Parent Bank with and into Company Bank, with Company Bank surviving the merger (the
Bank
Merger
); and
WHEREAS, the Boards of Directors of Parent Bank and Company Bank have each determined that the Bank Merger is
desirable and in the best interests of their respective banks, and have unanimously authorized and approved the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.
NOW, THEREFORE, in consideration of the premises and of the mutual agreements herein contained, the parties hereto do hereby agree as follows:
ARTICLE I
BANK
MERGER
Section 1.01
The Merger
. Subject to the terms and conditions of this Agreement, at the Effective Time (as defined
below), Parent Bank shall be merged with and into Company Bank in accordance with the provisions of
A-A-1
12 U.S.C. §§ 1828(c) and 1467a(s), and the regulations of the Office of the Comptroller of the Currency (
OCC
). At the Effective Time, the separate existence of Parent
Bank shall cease, and Company Bank, as the surviving entity (the
Surviving Bank
), shall continue unaffected and unimpaired by the Bank Merger. All rights, franchises, and interests of Parent Bank in and to every type of property
(real, personal, and mixed) and choses in action shall be vested in the Surviving Bank by virtue of such merger without any deed or other transfer. The Surviving Bank, upon the consummation of the Bank Merger and without any order or other action on
the part of any court or otherwise, shall hold and enjoy all rights of property, franchises, and interests, including appointments, designations, and nominations, and all other rights and interests as trustee, executor, administrator, registrar of
stocks and bonds, guardian of estates, assignee, and receiver, and in every other fiduciary capacity, in the same manner and to the same extent as such rights, franchises, and interests were held or enjoyed by Parent Bank or Company Bank at the time
of Bank Merger. The Surviving Bank shall be responsible for all of the liabilities of every kind and description, including liabilities arising from the operation of any trust department, of each of the merging banks existing as of the Effective
Time. Immediately following the Effective Time, the main office and any branches of the Parent Bank existing as of the Effective Time shall become branches of the Surviving Bank, although the main office of the Parent Bank shall be operated by the
Surviving Bank as a non-depository trust office.
Section 1.02
Effective Time
. Subject to applicable law, the Bank Merger shall
become effective at the date and time specified in the Certificate of Merger to be issued by the OCC. The date and time so specified shall be immediately following the effective time of the Holdco Merger (or, in the event that Parent elects not
to consummate the Holdco Merger pursuant to Section 6.11(b) of the Parent Merger Agreement, immediately following the time at which the Parent Merger becomes effective) when all of the conditions precedent to the consummation of the Bank Merger
specified in this Agreement shall have been satisfied or duly waived by the party entitled to satisfaction thereof (such date and time of the Bank Merger being herein referred to as the
Effective Time
).
Section 1.03
Charter and Bylaws
. The charter and bylaws of Company Bank in effect immediately prior to the Effective Time shall be the
charter and the bylaws of the Surviving Bank, in each case until amended in accordance with applicable law and the terms thereof, except that references to the name of Parent Bank shall be replaced by TIAA, FSB.
Section 1.04
Board of Directors
. At the Effective Time, the board of directors of the Surviving Bank shall consist of those persons
serving as directors of Parent Bank immediately prior to the Effective Time.
Section 1.05
Officers
. At the Effective Time, the
officers of the Surviving Bank shall consist of those persons serving as officers of Parent Bank immediately prior to the Effective Time.
Section 1.06
Name and Main Office
. The name of the Surviving Bank shall be TIAA, FSB and the main office of the Surviving
Bank shall be at Jacksonville, Florida.
Section 1.07
Tax Treatment
. It is the intention of the parties that the Bank Merger be
treated for U.S. federal income tax purposes as a reorganization pursuant to Section 368(a) of the Internal Revenue Code of 1986, as amended.
ARTICLE II
CONSIDERATION
Section
2.01
Effect on Parent Bank Capital Stock
. By virtue of the Bank Merger and without any action on the part of the holder of any capital stock of Parent Bank, at the Effective Time, all shares of Parent Bank capital stock issued and outstanding
shall be automatically cancelled and retired and shall cease to exist, and no cash, new shares of common stock, or other property shall be delivered in exchange therefor.
A-A-2
Section 2.02
Effect on Company Bank Capital Stock
. Each share of Company Bank capital
stock issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding and unaffected by the Bank Merger.
ARTICLE III
COVENANTS
Section 3.01
Further Action
. During the period from the date of this Agreement and continuing until the Effective Time,
subject to the provisions of the Parent Merger Agreement, each of the parties hereto agrees to use all reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under
applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01
Conditions to the Bank Merger
. The Bank Merger and the respective obligations of each party hereto to consummate the Bank
Merger are subject to the fulfillment or written waiver of each of the following conditions prior to the Effective Time:
|
a.
|
The approval of the OCC under 12 U.S.C. § 1828(c) and the rules and regulations of the OCC promulgated thereunder with respect to the Bank Merger shall have been obtained and shall be in full force and effect, and
all related waiting periods shall have expired; and all other material approvals and authorizations of, filings and registrations with, and notifications to, all governmental authorities required for the consummation the Bank Merger shall have been
obtained or made and shall be in full force and effect and all waiting periods required by law shall have expired.
|
|
b.
|
The Parent Merger shall have been consummated in accordance with the terms of the Parent Merger Agreement.
|
|
c.
|
The Holdco Merger shall have been consummated, unless Parent elects not to consummate the Holdco Merger pursuant to Section 6.11(b) of the Parent Merger Agreement.
|
|
d.
|
No order, injunction or decree issued by any court or agency of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Bank Merger shall be in effect. No statute, rule,
regulation, order, injunction or decree shall have been enacted, entered, promulgated or enforced by any Governmental Entity or otherwise be in effect which prohibits or makes illegal consummation of the Bank Merger.
|
|
e.
|
This Agreement shall have been adopted by the sole stockholder of each of Parent Bank and Company Bank.
|
ARTICLE V
TERMINATION
AND AMENDMENT
Section 5.01
Termination
.
This Agreement may be terminated at any time prior to the Effective Time by an
instrument executed by each of the parties hereto. This Agreement will terminate automatically and without any liability of either party hereto upon the termination of the Parent Merger Agreement.
A-A-3
Section 5.02
Amendment
.
This Agreement may be amended by an instrument in writing
signed on behalf of each of the parties hereto.
ARTICLE VI
GENERAL PROVISIONS
Section 6.01 Notices. All notices and other communications in connection with this Agreement shall be in writing and shall be deemed given if
delivered personally, sent via facsimile or email (with confirmation), mailed by registered or certified mail (return receipt requested) or delivered by an express courier (with confirmation) to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice):
(a) if to Company Bank, to:
|
|
|
EverBank Financial Corp
|
501 Riverside Avenue
|
Jacksonville, FL 32202
|
Attention:
|
|
James Hubbard, Executive Vice President,
|
|
|
General Counsel and Secretary
|
Facsimile:
|
|
(904) 623-8100
|
E-mail:
|
|
James.Hubbard@EverBank.com
|
|
With a copy (which shall not constitute notice) to:
|
|
Sullivan & Cromwell LLP
|
125 Broad Street
|
New York, NY 10004
|
Attention:
|
|
H. Rodgin Cohen
|
|
|
Mark J. Menting
|
Facsimile:
|
|
(212) 291-9028
|
|
|
(212) 291-9099
|
E-mail:
|
|
cohenhr@sullcrom.com
|
|
|
mentingm@sullcrom.com
|
|
and
|
(b) if to any of Parent Bank, to:
|
|
|
Teachers Insurance and Annuity Association of America
|
730 Third Avenue
|
New York, NY 10017
|
Attention:
|
|
Keith Morgan
|
|
|
Andrew Svarre
|
Facsimile:
|
|
(212) 916-4840
|
E-mail:
|
|
keith.morgan@tiaa.org
|
|
|
Asvarre@tiaa.org
|
|
|
|
With a copy (which shall not constitute notice) to:
|
|
Davis Polk & Wardwell LLP
|
450 Lexington Avenue
|
New York, NY 10017
|
Attention:
|
|
John L. Douglas
|
|
|
William L. Taylor
|
Facsimile:
|
|
(212) 701-5800
|
E-mail:
|
|
john.douglas@davispolk.com
|
|
|
william.taylor@davispolk.com
|
A-A-4
Section 6.02
Interpretation
. The words hereof, herein and
hereunder and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and section references are to this Agreement unless otherwise
specified. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
Section 6.03
Counterparts
. This Agreement may be executed in two (2) or more counterparts (including by facsimile or other electronic
means), all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each of the parties and delivered to the other party, it being understood that each party need not sign the same
counterpart.
Section 6.04
Entire Agreement
. This Agreement (including the documents and the instruments referred to herein)
constitutes the entire agreement among the parties and supersedes all prior agreements and understandings, both written and oral, among the parties, with respect to the subject matter hereof, other than the Parent Merger Agreement.
Section 6.05
Governing Law
. This Agreement shall be governed and construed in accordance with the laws of the State of Delaware,
without regard to any applicable conflicts of law, except to the extent that the federal laws of the United States shall be applicable hereto.
Section 6.06
Assignment
. Neither this Agreement nor any of the rights, interests or obligations contained herein shall be assigned by
any of the parties hereto without the prior written consent of the other parties. and any attempted assignment in contravention of this Section 6.06 shall be null and void.
[
Signature page follows
]
A-A-5
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in counterparts
by their duly authorized officers and attested by their officers thereunto duly authorized, all as of the day and year first above written.
|
|
|
TIAA-CREF TRUST COMPANY, FSB
|
|
|
By:
|
|
|
Title:
|
|
|
|
EVERBANK
|
|
|
By:
|
|
|
Title:
|
|
|
A-A-6
Annex B
FORM OF VOTING AND SUPPORT AGREEMENT
VOTING AND SUPPORT AGREEMENT (this
Agreement
), dated as of August 7, 2016, by and between Teachers Insurance and Annuity
Association of America, a New York stock life insurance company (
Parent
), and the individual or entity whose name appears in the signature block to this Agreement (the
Stockholder
).
W I T N E S S E T H:
WHEREAS, concurrently with the execution of this Agreement, EverBank Financial Corporation, a Delaware corporation (the
Company
), Parent, TCT Holdings, Inc., a Delaware corporation and a wholly owned Subsidiary of Parent (
Owner
), and Dolphin Sub Corporation, a Delaware corporation and a wholly owned Subsidiary of Owner
(
Merger Sub
) are entering into an Agreement and Plan of Merger, dated as of the date hereof (as amended, supplemented, restated or otherwise modified from time to time, the
Merger Agreement
), pursuant to which,
among other things, (i) each outstanding share of common stock, par value $0.01 per share, of the Company (the
Company Common Stock
) will be converted into the right to receive the Merger Consideration, and (ii) each outstanding
share of Series A 6.75% Non-Cumulative Perpetual Preferred Stock, par value $0.01 per share, of the Company (the
Company Preferred Stock
) will be converted into the right to receive the Preferred Stock Consideration, in each case
as specified in the Merger Agreement;
WHEREAS, as of the date hereof, the Stockholder is the Beneficial Owner (as defined herein) of such
Stockholders Existing Shares (as defined herein);
WHEREAS, as a condition and inducement to Parent entering into the Merger
Agreement, Parent has required that the Stockholder agree, and the Stockholder has agreed, to enter into this Agreement and abide by the covenants and obligations with respect to such Stockholders Covered Shares (as defined herein); and
WHEREAS, the Board of Directors of the Company has adopted the Merger Agreement and approved the transactions contemplated thereby,
understanding that the execution and delivery of this Agreement by the Stockholder, together with the voting and support agreements concurrently entered into by certain other stockholders of the Company (collectively, the
Covered
Stockholders
), is a material inducement and condition to Parents willingness to enter into the Merger Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants and agreements herein contained, and intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE 1
G
ENERAL
Section 1.01
.
Defined Terms.
Capitalized terms used but not otherwise defined herein shall have the
meanings ascribed thereto in the Merger Agreement. The following capitalized terms, as used in this Agreement, shall have the following meanings:
Affiliate
of a specified Person is any Person that directly or indirectly controls, is controlled by, or is under common
control with, such specified Person;
provided
that, for purposes of this Agreement, in no event shall (a) the Company or any of its controlled Affiliates or (b) any of the portfolio companies in which the Stockholder or its
Affiliates have an investment be deemed to be an Affiliate of such Stockholder so long as such portfolio company has not received confidential information regarding the Company, any of its Subsidiaries or the transactions contemplated by the Merger
Agreement and is not acting at the direction of or in active coordination with such Stockholder with respect to the Company, any of its Subsidiaries or the transactions contemplated by the Merger Agreement. For purposes of this Agreement,
control
when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms
controlling
and
controlled
have correlative meanings.
B-1
Beneficial Ownership
has the meaning ascribed to such term in Rule 13d-3 under
the Exchange Act. The terms
Beneficially Own
,
Beneficially Owned
and
Beneficial Owner
shall each have a correlative meaning.
Covered Shares
means the Stockholders Existing Shares, (i) together with any shares of Company Common Stock, Company
Preferred Stock or other capital stock of the Company and any shares of Company Common Stock, Company Preferred Stock or other capital stock of the Company issuable upon the conversion, exercise or exchange of securities that are as of the relevant
date securities convertible into or exercisable or exchangeable for shares of Company Common Stock, Company Preferred Stock or other capital stock of the Company, in each case that the Stockholder has or acquires Beneficial Ownership of on or after
the date hereof and over which the Stockholder has sole voting power (ii) less any shares disposed of pursuant to a Permitted Transfer.
Encumbrance
means any security interest, pledge, mortgage, lien (statutory or other), charge, option to purchase, lease or
other right to acquire any interest or any claim, restriction, covenant, title defect, hypothecation, assignment, deposit arrangement or other encumbrance of any kind or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement). The term
Encumber
shall have a correlative meaning.
Existing Shares
means the shares of Company Common Stock and Company Preferred Stock set forth opposite the
Stockholders name on Schedule 1.A hereto.
Expiration Date
means the date on which the Merger Agreement is
terminated in accordance with its terms;
provided
,
however
, that in the event of a dispute as to whether the Merger Agreement has been terminated in accordance with its terms (and such dispute is not resolved by the parties to the
Merger Agreement or one of the Chosen Courts prior to the termination hereunder), the Merger Agreement shall be deemed terminated in accordance with its terms on the later of (i) 30 days after any party to the Merger Agreement gives notice of
termination to the other parties thereto and such notice is not withdrawn during such 30 day period and (ii) the Termination Date.
Permitted Transfer
means (a) a Transfer of Covered Shares by the Stockholder to an Affiliate of such Stockholder or a
Transfer of Covered Shares by the Stockholder to any other Person that is reasonably acceptable to Parent and, in each case, who complies with clause (y) below or (b) if the Stockholder is an individual, a Transfer of Covered Shares (i) to any
member of such Stockholders immediate family or to a trust for the benefit of such Stockholder and/or any member of such Stockholders immediate family, (ii) upon the death of such Stockholder pursuant to the terms of any trust or will of
such Stockholder or by the Laws of intestate succession, or (iii) to any Person as a
bona fide
gift or gifts,
provided
that (x) in the case of clause (a), such Affiliate shall remain an Affiliate of such Stockholder at all times
following such Transfer and prior to the termination of this Agreement, and (y) in the case of both clauses (a) and (b), prior to the effectiveness of such Transfer, such transferee executes and delivers to Parent a written agreement, in form and
substance reasonably acceptable to Parent, to assume all of such Stockholders obligations hereunder in respect of the Covered Shares subject to such Transfer and to be bound by the terms of this Agreement, with respect to such Covered Shares,
to the same extent as such Stockholder is bound hereunder and to make each of the representations and warranties hereunder in respect of itself and such Covered Shares as such Stockholder shall have made hereunder.
Person
means an individual, corporation (including not-for-profit), general or limited partnership, limited liability
company, joint venture, estate, trust, association, organization, Governmental Entity or other entity of any kind or nature.
Representatives
means, with respect to a Person, such Persons Affiliates and its and their respective officers,
directors, employees, agents and advisors.
B-2
Stockholder Related Parties
means, collectively, the Stockholders
Affiliates and, in the case of any such Stockholder that is not a natural person, such Stockholders and its Affiliates respective current, former or future directors, officers, employees, agents, partners, managers, members,
stockholders, assignees and representatives.
Subsidiary
means, with respect to any Person, any other Person, whether
incorporated or unincorporated, (i) of which such first Person or any other Subsidiary of such first Person is a general partner or manager or (ii) at least a majority of the securities or other interests of which having by their terms ordinary
voting power to elect a majority of the board of directors or others performing similar functions with respect to such other Person is directly or indirectly owned or controlled by such first Person or by any one or more of its Subsidiaries;
provided
that the Company shall in no event be deemed a Subsidiary of the Stockholder.
Transfer
means, directly
or indirectly, to sell, transfer, assign, pledge, Encumber, hypothecate or similarly dispose of (including by merger (including by conversion into securities or other consideration), by tendering into any tender or exchange offer, by testamentary
disposition, by operation of law or otherwise), either voluntarily or involuntarily, or to enter into any contract, option or other arrangement or understanding with respect to the voting of or sale, transfer, assignment, pledge, Encumbrance,
hypothecation or similar disposition of (including by merger, by tendering into any tender or exchange offer, by testamentary disposition, by operation of law or otherwise).
ARTICLE 2
V
OTING
Section 2.01
.
Agreement
To
Vote.
(a) The Stockholder hereby irrevocably and unconditionally agrees that during the term of this Agreement, at the Company Meeting and at
any other meeting of the stockholders of the Company, however called, including any adjournment or postponement thereof, such Stockholder shall, in each case to the fullest extent that the Covered Shares of such Stockholder are entitled to vote
thereon or consent thereto:
(i) appear at each such meeting or otherwise cause the Covered Shares to be counted as present
thereat for purposes of calculating a quorum; and
(ii) vote (or cause to be voted), in person or by proxy, all of such
Covered Shares (A) in favor of (1) the adoption and approval of the Merger Agreement and approval of the Merger and other transactions contemplated by the Merger Agreement and (2) any proposal to adjourn or postpone any meeting of the stockholders
of the Company at which any of the foregoing matters are submitted for consideration and vote of the stockholders of the Company to a later date if there are not a quorum or sufficient votes for approval of such matters on the date on which the
meeting is held to vote upon any of the foregoing matters; (B) against any action or agreement that would result in a breach of any covenant, representation or warranty or any other obligation or agreement of the Company contained in the Merger
Agreement, or of such Stockholder contained in this Agreement, if requested by Parent in writing at least two (2) business days prior to the applicable vote; and (C) against any Acquisition Proposal or Superior Proposal and against any other action,
agreement or transaction involving the Company or any of its Subsidiaries that would reasonably be expected to materially impede, interfere with, delay, postpone, adversely affect or prevent the consummation of the Merger or the other transactions
contemplated by the Merger Agreement or this Agreement or the performance by the Company of its obligations under the Merger Agreement or by such Stockholder of its obligations under this Agreement, including (I) any extraordinary corporate
transaction, such as a merger, consolidation, share exchange or other business combination involving the Company or Company Bank (other than the Merger, the Bank Merger and the Holdco Merger); (II) a sale, lease or transfer of a material amount of
assets of the Company or Company Bank or any reorganization, recapitalization, liquidation, dissolution or other similar transaction involving the Company or Company Bank; or (III) any change in the present capitalization of the Company or any
amendment or other change to the Companys certificate of incorporation or bylaws.
B-3
(b) The Stockholder hereby (i) waives, and agrees not to exercise or assert, any appraisal
or similar rights (including under Section 262 of Delaware Law) in connection with the Merger and (ii) agrees (A) not to commence or participate in and (B) to take all actions necessary to opt out of any class in any class action with respect to,
any claim, derivative or otherwise, against Parent, Owner, Merger Sub, the Company or any of their respective Affiliates relating to the negotiation, execution or delivery of this Agreement or the Merger Agreement or the consummation of the
transactions contemplated hereby or thereby, including any claim (1) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or (2) alleging a breach of any fiduciary duty of the Board of Directors of the
Company in connection with this Agreement, the Merger Agreement or the transactions contemplated hereby or thereby.
(c) The
obligations of the Stockholder specified in this Section 2.01 shall apply whether or not the Merger or any action described above is recommended by the Board of Directors of the Company (or any committee thereof).
Section 2.02
.
No Inconsistent Agreements.
The Stockholder hereby covenants and agrees that, except for
this Agreement, such Stockholder (a) has not entered into, and shall not enter into at any time while the Merger Agreement remains in effect, any voting agreement or voting trust with respect to the Covered Shares of such Stockholder, (b) has not
granted, and shall not grant at any time while the Merger Agreement remains in effect, a proxy, consent or power of attorney with respect to the Covered Shares of such Stockholder (except pursuant to Section 2.03 or pursuant to any irrevocable proxy
card in form and substance reasonably satisfactory to Parent delivered to the Company directing that the Covered Shares of such Stockholder be voted in accordance with Section 2.01) and (c) has not taken and shall not knowingly take any action that
would make any representation or warranty of such Stockholder contained herein untrue or incorrect or have the effect of preventing or disabling such Stockholder from performing any of its obligations under this Agreement;
provided
,
however
, that this Section 2.02 shall not preclude such Stockholder from Transferring Covered Shares pursuant to a Permitted Transfer or taking any action permitted under the last sentence of Section 4.01. The Stockholder hereby
represents that all proxies, powers of attorney, instructions or other requests given by such Stockholder prior to the execution of this Agreement in respect of the voting of such Stockholders Covered Shares, if any, are not irrevocable and
such Stockholder hereby revokes (and shall cause to be revoked) any and all previous proxies, powers of attorney, instructions or other requests with respect to such Stockholders Covered Shares.
Section 2.03
.
Proxy.
The Stockholder hereby irrevocably appoints as its proxy and attorney-in-fact, Parent and
any Person designated in writing by Parent, each of them individually, with full power of substitution and resubstitution, to vote the Covered Shares Beneficially Owned by such Stockholder solely to the extent and in accordance with Section 2.01
during the term of this Agreement at the Company Meeting and at any annual or special meetings of stockholders of the Company (or adjournments or postponements thereof) prior to the termination of this Agreement in accordance with Section 5.01 at
which any of the matters described in Section 2.01 is to be considered;
provided
,
however
, that such Stockholders grant of the proxy contemplated by this Section 2.03 shall be effective if, and only if, such Stockholder fails to
be counted as present, to consent or to vote such Stockholders Covered Shares, as applicable, in accordance with this Agreement or has not delivered to the Secretary of the Company at least two (2) business days prior to the meeting at which
any of the matters described in Section 2.01 is to be considered a duly executed irrevocable proxy card in form and substance reasonably satisfactory to Parent directing that the Covered Shares of such Stockholder be voted in accordance with Section
2.01. This proxy, if it becomes effective, is coupled with an interest, is given as an additional inducement of Parent to enter into the Merger Agreement and shall be irrevocable prior to the termination of this Agreement in accordance with
Section 5.01, at which time any such proxy shall terminate. The Stockholder (solely in its capacity as such) shall take such further actions or execute such other instruments as may be necessary to effectuate the intent of this
proxy. Parent may terminate this proxy with respect to any such Stockholder at any time at its sole election by written notice provided to such Stockholder.
B-4
ARTICLE 3
R
EPRESENTATIONS
A
ND
W
ARRANTIES
The Stockholder hereby represents and warrants to Parent as follows:
Section 3.01.
Authorization; Validity of Agreement
. If such Stockholder is an entity, such Stockholder is duly organized,
validly existing and in good standing under the Laws of the jurisdiction of its organization. Such Stockholder has the requisite capacity and authority to execute and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. This Agreement has been duly authorized (to the extent authorization is required), executed and delivered by such Stockholder and, assuming this Agreement constitutes a valid and binding
obligation of Parent, constitutes a legal, valid and binding obligation of such Stockholder, enforceable against such Stockholder in accordance with its terms, subject to the Enforceability Exceptions. If such Stockholder is an individual and
is married and such Stockholders Covered Shares constitute community property under applicable Law, this Agreement has been duly authorized (to the extent authorization is required), executed and delivered by, and constitutes the valid and
binding agreement of, such Stockholders spouse, subject to the Enforceability Exceptions.
Section
3.02.
Ownership
. Unless Transferred pursuant to a Permitted Transfer, (i) such Stockholders Existing Shares are, and all of the Covered Shares Beneficially Owned by such Stockholder during the term of this Agreement will
be, Beneficially Owned by such Stockholder and (ii) such Stockholder has good and valid title to such Stockholders Existing Shares, free and clear of any Encumbrances other than pursuant to this Agreement, the Merger Agreement, under
applicable federal or state securities laws, pursuant to any written policies of the Company only with respect to restrictions upon the trading of securities under applicable securities laws, pursuant to agreements publicly filed by the Company with
the SEC in its Annual Report on Form 10-K for the year ended December 31, 2015, or as set forth on Schedule 1.B. With respect to any outstanding Covered Shares of which the Stockholder is not the record owner, such lack of record ownership will
not prevent or impair such Stockholder from complying with any obligation, agreement or covenant set forth herein. As of the date hereof, such Stockholders Existing Shares constitute all of the shares of Company Common Stock and Company
Preferred Stock (or any other equity interests of the Company) Beneficially Owned or owned of record by such Stockholder over which such Stockholder has sole voting power. Any shares of Company Common Stock and Company Preferred Stock (or any
other equity interests of the Company) Beneficially Owned or owned of record by the Stockholder and over which such Stockholder does not have sole voting power are covered by another voting and support agreement entered into on the date hereof by a
Covered Stockholder. Unless Transferred pursuant to a Permitted Transfer, such Stockholder has and will have at all times during the term of this Agreement sole voting power (including the right to control such vote as contemplated herein),
sole power of disposition, sole power to issue instructions with respect to the matters set forth in Article 2, and sole power to agree to all of the matters set forth in this Agreement, in each case with respect to all of such
Stockholders Existing Shares and with respect to all of the Covered Shares Beneficially Owned by such Stockholder and over which such Stockholder has sole voting power at all times during the term of this Agreement.
Section 3.03.
No Violation
. The execution and delivery of this Agreement by such Stockholder does not, and the performance by
such Stockholder of its obligations under this Agreement will not, (i) result in such Stockholder violating any Law applicable to such Stockholder or by which any of its assets or properties is bound or, if applicable, any certificate or articles of
incorporation, as applicable, or bylaws or other equivalent organizational documents of such Stockholder, or (ii) violate, conflict with, result in a breach of any provision of or the loss of any benefit under, 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 or a right of termination or cancellation under, accelerate the performance required by, or result in the creation of any Encumbrance upon
any of the properties or assets of such Stockholder under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, deed of trust, license, lease, agreement or other instrument or obligation to which such Stockholder is a
party, or by which it or any of its properties or assets may be bound that would adversely affect its ability to perform its obligations under this Agreement.
B-5
Section 3.04.
Consents and Approvals
. The execution and delivery of this
Agreement by such Stockholder does not, and the performance by such Stockholder of its obligations under this Agreement and the consummation by it of the transactions contemplated hereby will not, require such Stockholder to obtain any consent,
approval, authorization or permit of, or to make any filing with or notification to, any Governmental Entity, other than the filings of any required reports with the SEC.
Section 3.05.
Absence of Litigation
. As of the date hereof, there is no litigation, action, suit or proceeding pending or, to
the knowledge of such Stockholder, threatened against or affecting such Stockholder and/or any of its Affiliates before or by any Governmental Entity that would reasonably be expected to impair the ability of such Stockholder to perform its
obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.
Section 3.06.
Finders
Fees
. No investment banker, broker, finder or other intermediary is entitled to a fee or commission from Parent, Owner, Merger Sub or the Company in respect of this Agreement or the Merger Agreement based upon any arrangement or agreement
made by or on behalf of such Stockholder.
Section 3.07.
Reliance by Parent
. Such Stockholder understands and
acknowledges that Parent is entering into the Merger Agreement in reliance upon the execution and delivery of this Agreement by such Stockholder and the representations and warranties of such Stockholder contained herein. Such Stockholder
understands and acknowledges that the Merger Agreement governs the terms of the Merger and the other transactions contemplated thereby.
ARTICLE 4
O
THER
C
OVENANTS
Section 4.01
.
Prohibition
On
Transfers; Other Actions.
Until
the earlier of (a) the stockholder approval of the Merger and (b) termination of this Agreement in accordance with Section 5.01, the Stockholder agrees that it shall not (i) Transfer any of such Stockholders Covered Shares, Beneficial
Ownership thereof or any other interest therein (including any voting power with respect thereto) unless such Transfer is a Permitted Transfer; (ii) enter into any agreement, arrangement or understanding with any Person, or take any other action,
that violates or conflicts with or would reasonably be expected to violate or conflict with, or result in or give rise to a violation of or conflict with, such Stockholders representations, warranties, covenants and obligations under this
Agreement; or (iii) take any action that could reasonably be expected to restrict or otherwise affect such Stockholders legal power, authority and right to comply with and perform its covenants and obligations under this Agreement. Any
Transfer in violation of this provision shall be void
ab
initio
. The Stockholder shall not request that the Company or its transfer agent register the transfer (book-entry or otherwise) of any Certificate representing any of such
Stockholders Covered Shares. Notwithstanding anything in this Agreement to the contrary, if the Stockholder is an individual or an Affiliate of a Covered Stockholder that is an individual, as applicable, such Stockholder may (w) Transfer
any of the Covered Shares for
bona fide
charitable purposes (including any Transfer to donor advised funds);
provided
that the aggregate value of the Covered Shares Transferred by the Stockholder pursuant to this clause (w), together
with the aggregate value of other shares of Company Common Stock and/or Company Preferred Stock that are Beneficially Owned by the Stockholder or by any Affiliate of the Stockholder and are transferred pursuant to the equivalent of this clause (w)
in one or more other voting and support agreements entered into by one or more other Covered Stockholders, shall not in the aggregate exceed $500,000 in any twelve month period, (x) Transfer any of the Covered Shares in connection with the exercise
of options and other equity equivalents that, in either such case, would otherwise expire on a cashless exercise basis, (y) sell or surrender any of the Covered Shares to pay Taxes in connection with the vesting of any equity-based
compensation, and (z) Transfer any of the Covered Shares pursuant to a written trading plan of the Company in effect on the date hereof that is set forth on Schedule 1.C hereto and that is intended to satisfy the requirements of Rule 10b5-1
under the Exchange Act, in the case of each of (w), (x), (y) and (z), without any limitations or restrictions whatsoever, including this Article 4. Notwithstanding anything in
B-6
this Agreement to the contrary, nothing in this Agreement shall require any action, or restrict the Stockholder, with respect to any Covered Shares subject to any pledge or security interest in
effect as of the date hereof as set forth on Schedule 1.B hereto to the extent such action or restriction is inconsistent with the terms of such pledge or security interest;
provided
that, unless and until there is a
bona fide
foreclosure with respect to such pledge or security interest, such Stockholder agrees that there are no terms of any such pledge or security interest that will prevent or impair such Stockholder from complying with any obligation, agreement or
covenant set forth herein.
Section 4.02
.
Stock Dividends, Etc.
In the event of any change in the
Company Common Stock or Company Preferred Stock by reason of any reclassification, recapitalization, reorganization, stock split (including a reverse stock split) or subdivision or combination, exchange or readjustment of shares, or any stock
dividend or stock distribution, merger or other similar change in capitalization, the terms Existing Shares and Covered Shares shall be deemed to refer to and include such shares as well as all such stock dividends and
distributions and any securities into which or for which any or all of such shares may be changed or exchanged or which are received in such transaction.
Section 4.03.
No Solicitation; Support
Of
Acquisition Proposals.
(a) Subject to the provisions of Section 5.02 of this Agreement, prior to the Expiration Date the Stockholder agrees that it shall not,
and shall cause each of its Subsidiaries, Affiliates and Representatives not to, directly or indirectly (i) initiate, solicit, knowingly encourage or knowingly facilitate inquiries or proposals with respect to any Acquisition Proposal,
(ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to any
Acquisition Proposal, (iv) make or participate in, directly or indirectly, a solicitation of proxies (as such terms are used in the rules of the SEC) or powers of attorney or similar rights to vote, or seek to advise or
influence any Person, with respect to the voting of any shares of Company Common Stock or Company Preferred Stock in connection with any vote or other action on any matter, other than to recommend that the stockholders of the Company vote in favor
of the adoption and approval of the Merger Agreement and the transactions contemplated thereby as otherwise expressly provided in this Agreement, (v) approve, adopt, recommend or enter into, or publicly propose to approve, adopt, recommend or
enter into, or allow any of its Affiliates to enter into, a merger agreement, letter of intent, term sheet, agreement in principle, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement, voting, profit
capture, tender or other similar contract providing for, with respect to, or in connection with, or that is intended to or could reasonably be expected to result in any Acquisition Proposal, or (vi) agree or propose to do any of the
foregoing. The Stockholder and its Subsidiaries, Affiliates and Representatives shall immediately cease and cause to be terminated all discussions or negotiations with any Person conducted heretofore (other than with Parent) with respect to any
Acquisition Proposal, and shall take the necessary steps to inform its Affiliates and Representatives of the obligations undertaken pursuant to this Agreement, including this Section 4.03. Any violation of this Section 4.03 by the
Stockholders Affiliates or Representatives shall be deemed to be a violation by the Stockholder of this Section 4.03. The Stockholder agrees to promptly (and in any event within 24 hours) notify Parent after receipt by it of an
Acquisition Proposal or any indication to it that any Person is considering making an Acquisition Proposal or any request of such Stockholder for nonpublic information relating to the Company or any of its Subsidiaries or for access to the
properties, books or records of the Company or any of its Subsidiaries by any Person that such Stockholder has knowledge or reasonably expects to be considering making, or has made, an Acquisition Proposal and to keep Parent fully informed of the
status and details of any such Acquisition Proposal, indication or request.
(b) For the avoidance of doubt, for the purposes of this
Section 4.03, any officer, director, employee, agent or advisor of the Company (in each case, in their capacities as such) shall be deemed not to be a Representative of the Stockholder.
Section 4.04
.
Notice Of Acquisitions.
The Stockholder agrees to notify Parent as promptly as practicable
(and in any event within 24 hours after receipt) orally and in writing of the number of any additional shares of Company Common Stock, Company Preferred Stock, or other securities of the Company of which such Stockholder acquires Beneficial
Ownership on or after the date hereof.
B-7
Section 4.05
.
Matters Regarding Company Preferred Stock.
To
the extent the Stockholder owns any shares of Company Preferred Stock, such Stockholder hereby (a) acknowledges that holders of Company Preferred Stock, in such capacity, have no right to vote or consent as a separate class in connection with the
Merger or the Merger Agreement and (b) consents to the receipt with respect to its shares of Company Preferred Stock of Preferred Stock Consideration provided therefor in the Merger Agreement.
Section 4.06
.
Further Assurances; Disclosure.
From time to time, at Parents reasonable request and
without further consideration, the Stockholder agrees to cooperate with Parent with respect to Parents or the Companys or their respective Subsidiaries filings with Governmental Entities, to the extent relating to such
Stockholder, and to execute and deliver such additional documents and reasonably cooperate in connection with such further actions as may be necessary or desirable to effect the actions contemplated by this Agreement and the Merger Agreement;
provided
that, for the avoidance of doubt, this Section 4.06 shall not be interpreted to transfer to the Stockholder the responsibility to prepare and/or file any application or other filing that would traditionally be filed by Parent, the
Company or any of their respective Affiliates in connection with the transactions contemplated hereby. The Stockholder hereby authorizes Parent to publish and disclose in any announcement or disclosure required by the SEC and in the Proxy
Statement such Stockholders identity and ownership of such Stockholders Covered Shares and the nature of such Stockholders obligations under this Agreement.
ARTICLE 5
M
ISCELLANEOUS
Section 5.01
.
Termination.
This Agreement shall remain in effect until the earlier to occur of (a) the
Effective Time and (b) the Expiration Date. Neither the provisions of this Section 5.01 nor the termination of this Agreement shall (i) relieve any party hereto from any liability of such party to any other party incurred prior to such
termination or expiration, (ii) relieve any party hereto from any liability to any other party arising out of or in connection with a breach of this Agreement or (iii) terminate the obligations under Section 2.01(b), Section 4.05 or Article
5. The Stockholder shall also have the right to terminate this Agreement by written notice to Parent as specified below if the terms of the Merger Agreement are amended, modified or waived without the written consent of such Stockholder to
change the form or amount of the consideration payable with respect to the Covered Shares pursuant the Merger Agreement in a manner adverse to such Stockholder;
provided
that such Stockholder sends notice to Parent of such Stockholders
election to terminate within five business days after the public announcement of such amendment.
Section 5.02.
No Agreement
As
Director or Officer; Stockholder Capacity
. Notwithstanding any provision in this Agreement to the contrary, nothing in this Agreement shall limit or restrict the Stockholder (if an individual) in his or her capacity as a
director or officer of the Company from acting in such capacity or voting in such capacity in such persons sole discretion on any matter and no such actions shall be deemed a breach of this Agreement. Any trustee executing this Agreement
is executing this Agreement solely in his or her fiduciary capacity and shall have no personal liability or obligation under this Agreement in such capacity. It is understood that this Agreement shall apply to the Stockholder solely in such
Stockholders capacity as a stockholder of the Company.
Section 5.03
.
No Ownership
Interest.
The Stockholder has agreed to enter into this Agreement and act in the manner specified in this Agreement for consideration. Except as expressly set forth in this Agreement, all rights and all ownership and economic
benefits of and relating to the Stockholders Covered Shares shall remain vested in and belong to such Stockholder, and except as expressly set forth in this Agreement, nothing herein shall, or shall be construed to, grant Parent any power,
sole or shared, to direct or control the voting or disposition of any of such Covered Shares. Nothing in this Agreement shall be interpreted as creating or forming a group with any other Person, including Parent, for purposes of
Rule 13d-5(b)(1) of the Exchange Act or any other similar provision of applicable Law.
B-8
Section 5.04
.
Notices.
All notices and other communications
hereunder shall be in writing and shall be deemed duly given (a) on the date of delivery if delivered personally, or if by facsimile, upon confirmation of receipt, or if by e-mail so long as such e-mail states it is a notice delivered pursuant to
this Section 5.04 and a duplicate copy of such e-mail is promptly given by one of the other methods described in this Section 5.04, (b) on the first business day following the date of dispatch if delivered utilizing a next-day service by a
recognized next-day courier or (c) on the earlier of confirmed receipt or the fifth business day following the date of mailing if delivered by registered or certified mail, return receipt requested, postage prepaid. All notices hereunder shall
be delivered to the addresses set forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice:
Teachers Insurance and Annuity Association of America
730 Third Avenue
New York,
NY 10017
Attention: J. Keith Morgan
Facsimile: (212) 916-4840
E-mail: Keith.Morgan@tiaa.org
with a copy (which shall not constitute notice) to:
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York,
New York 10017
Attention: John L. Douglas
William L. Taylor
Facsimile: (212) 701-5800
E-mail: john.douglas@davispolk.com
william.taylor@davispolk.com
and
(ii) if to the Stockholder, to the applicable address set forth on Schedule 1.D.
Section 5.05
.
Interpretation.
The parties have participated jointly in negotiating and drafting this
Agreement. In the event that an ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any
party by virtue of the authorship of any provision of this Agreement. When a reference is made in this Agreement to Articles, Sections or Schedules, such reference shall be to an Article or Section of or Schedule to this Agreement unless
otherwise indicated. Headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words include, includes or
including are used in this Agreement, they shall be deemed to be followed by the words without limitation. References to the date hereof shall mean the date of this Agreement. As used herein, (i)
business day means any day other than a Saturday, a Sunday or a day on which banks in New York, New York are authorized by law or executive order to be closed and (ii) the transactions contemplated by the Merger Agreement
shall include the Merger, the Bank Merger and the Holdco Merger. All references to dollars or $ in this Agreement are to United States dollars. This Agreement shall not be interpreted or construed to require any
Person to take any action, or fail to take any action, if to do so would violate any applicable Law. References to any statute or regulation refer to such statute or regulation as amended, modified, supplemented or replaced from time to time
(and, in the case of statutes, include any rules and regulations promulgated under the statute) and references to any section of any statute or regulation include any successor to such section.
Section 5.06
.
Counterparts.
This Agreement may be executed in two or more counterparts (including by
facsimile or other electronic means) all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each of the parties and delivered to the other parties,
it
being
understood
that all parties need not sign the same counterpart.
B-9
Section 5.07
.
Entire Agreement.
This Agreement and, to the
extent referenced herein, the Merger Agreement, together with the several agreements and other documents and instruments referred to herein or therein or attached hereto or thereto, constitute the entire agreement among the parties and supersede all
prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof and thereof.
Section 5.08
.
Governing Law; Consent To Jurisdiction; Waiver Of Jury Trial.
(a) This Agreement shall be governed and construed in accordance with the laws of the State of Delaware, without regard to any applicable
conflicts of law.
(b) Each party agrees that it will bring any action or proceeding in respect of any claim arising out of or
related to this Agreement or the transactions contemplated hereby exclusively in any federal or state court located in the State of Delaware (the
Chosen Courts
), and, solely in connection with claims arising under this Agreement
or the transactions that are the subject of this Agreement, (i) irrevocably submits to the exclusive jurisdiction of the Chosen Courts, (ii) waives any objection to laying venue in any such action or proceeding in the Chosen Courts, (iii) waives any
objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any party and (iv) agrees that service of process upon such party in any such action or proceeding will be effective if notice is given in accordance with
Section 5.04.
(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT: (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (IV)
SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 5.08(c).
Section 5.09
.
Amendment; Waiver.
This Agreement may not be amended except by an instrument in writing
signed by Parent and the Stockholder. Each party may waive any right of such party hereunder by an instrument in writing signed by such party and delivered to the other parties, but such waiver shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure.
Section 5.10
.
Remedies.
The parties hereto agree that
irreparable damage would occur if any provision of this Agreement were not performed in accordance with its specific terms or were otherwise breached. Accordingly, the parties shall be entitled to specific performance of the terms hereof, including
an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof, in addition to any other remedy to which they are entitled at law or in equity. Each of the
parties hereby further waives (a) any defense in any action for specific performance that a remedy at law would be adequate and (b) any requirement under any Law to post security or a bond as a prerequisite to obtaining equitable relief.
Section 5.11
.
Severability.
Whenever possible, each provision or portion of any provision of this
Agreement shall be interpreted in such manner as to be effective and valid under applicable Law, but if any provision or portion of any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable
Law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other
B-10
provision or portion of any provision in such jurisdiction, and this Agreement shall be reformed, construed and enforced in such jurisdiction such that the invalid, illegal or unenforceable
provision or portion thereof shall be interpreted to be only so broad as is enforceable.
Section 5.12
.
Delivery by
Facsimile or Electronic Transmission.
This Agreement and any signed agreement or instrument entered into in connection with this Agreement, and any amendments or waivers hereto or thereto, to the extent signed and delivered by means
of a facsimile machine or by e-mail delivery of a .pdf format data file, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the
original signed version thereof delivered in person. No party hereto or to any such agreement or instrument shall raise the use of a facsimile machine or e-mail delivery of a .pdf format data file to deliver a signature to this
Agreement or any amendment hereto or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a facsimile machine or e-mail delivery of a .pdf format data file as a defense to the
formation of a contract and each party hereto forever waives any such defense.
Section 5.13
Successors And Assigns; Third
Party Beneficiaries.
Other than to a transferee pursuant to a Permitted Transfer, neither this Agreement nor any of the rights, interests or obligations contained herein shall be assigned by any of the parties hereto (whether by
operation of law or otherwise) without the prior written consent of the other parties. Any purported assignment in contravention hereof shall be null and void. Subject to the preceding sentences, this Agreement will be binding upon, inure
to the benefit of and be enforceable by the parties and their respective successors and permitted assigns. This Agreement (including the documents and instruments referred to herein) is not intended to, and does not, confer upon any person
other than the parties hereto any rights or remedies hereunder, including the right to rely upon the representations and warranties set forth herein, other than the Company which shall be, and hereby is, an express third party beneficiary of this
Agreement.
Section 5.14.
Expenses
. All costs and expenses incurred in connection with this Agreement shall be paid by
the party incurring such cost or expense.
Section 5.15.
Non-Recourse
. Notwithstanding anything to the contrary herein or in
any other documents delivered pursuant hereto, (i) this Agreement may be enforced only against, and any claim based upon, arising out of or related to a breach of this Agreement by the Stockholder may be made only against, such Stockholder,
(ii) none of the Stockholder Related Parties shall have any liability for any liabilities of the parties hereto for any such claims (whether in tort, contract or otherwise) for breach of this Agreement or in respect of any oral representations
made or alleged to be made in connection herewith, and (iii) Parent shall have no rights of recovery in respect of this Agreement against any Stockholder Related Party, whether by or through attempted piercing of the corporate veil, by or
through any claim (whether in tort, contract or otherwise) by or on behalf of the Stockholder against any Stockholder Related Party, by the enforcement of any judgment, fine or penalty or by virtue of any statute, regulation or other applicable
requirements of Law, or otherwise.
[Remainder of this page intentionally left blank]
B-11
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed (where applicable,
by their respective officers or other authorized Person thereunto duly authorized) as of the date first written above.
|
|
|
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA
|
|
|
By:
|
|
|
|
|
Name:
|
|
|
Title:
|
[S
IGNATURE
P
AGE
TO
V
OTING
AND
S
UPPORT
A
GREEMENT
]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed (where applicable,
by their respective officers or other authorized Person thereunto duly authorized) as of the date first written above.
|
|
|
[STOCKHOLDER]
|
|
|
By:
|
|
|
|
|
Name:
|
|
|
Title:
|
[S
IGNATURE
P
AGE
TO
V
OTING
AND
S
UPPORT
A
GREEMENT
]
SCHEDULE 1
A.
|
OWNERSHIP OF EXISTING SHARES
|
|
|
|
|
|
|
|
|
|
Stockholder
|
|
Number of Existing
Shares of Company
Common Stock
|
|
|
Number of Existing
Shares of Company
Preferred Stock
|
|
[Stockholder Name]
|
|
|
|
|
|
|
|
|
[The Stockholder has pledged [●] shares of the Existing Shares of Company Common Stock as
security.][None.]
[Rule 10b5-1 Trading Plan between [●] and [●], dated [●].][None.]
[Stockholder Name]
[Address]
|
|
|
Attention:
|
|
[●]
|
Facsimile:
|
|
[●]
|
E-mail:
|
|
[●]
|
Annex C
[LETTERHEAD OF UBS SECURITIES LLC]
August 7,
2016
EverBank Financial Corp
501 Riverside Avenue, 12
th
Floor
Jacksonville, FL 32202
Attention: Board of Directors
Dear Members of the Board:
We understand that EverBank Financial Corp, a Delaware corporation (the Company), is considering a transaction whereby Teachers
Insurance and Annuity Association of America, a New York stock life insurance company (Parent), will effect a merger involving the Company. Pursuant to the terms of an Agreement and Plan of Merger (the Agreement) by and
among Parent, TCT Holdings, Inc., a Delaware corporation and a wholly owned subsidiary of Parent (Owner), Dolphin Sub Corporation, a Delaware corporation and a wholly owned subsidiary of Owner (Merger Sub), and the Company,
(i) Merger Sub will merge with the Company and the Company will become a wholly owned subsidiary of Owner (the Merger), (ii) immediately following the Merger, Owner will (subject to Parents right under Section 6.11(b) of
the Agreement to elect not to do so) merge with the Company and the Company will become a wholly owned direct subsidiary of Parent (the Holdco Merger) and (iii) immediately following the Holdco Merger (or if Parent elects not
consummate the Holdco Merger pursuant to Section 6.11(b) of the Agreement, immediately following the Merger) and subject to the terms and conditions of the Agreement and the bank merger agreement attached as Exhibit A to the Agreement, TIAA-CREF
Trust Company, FSB will merge with EverBank (Company Bank) with Company Bank as the surviving company in the Bank Merger (the Bank Merger and, collectively with the Merger and the Holdco Merger, the
Transaction). Pursuant to the terms of the Agreement each issued and outstanding share of the common stock, par value of $0.01 per share, of the Company (Company Common Stock), will be converted into the right to receive
$19.50 in cash (the Consideration) in the Merger. The terms and conditions of the Transaction are more fully set forth in the Agreement.
You have requested our opinion as to the fairness, from a financial point of view, to the holders of the Company Common Stock of the
Consideration to be received by such holders in the Merger pursuant to the Agreement.
UBS Securities LLC (UBS) has acted as
financial advisor to the Company in connection with the Transaction and will receive a fee for its services, a portion of which is payable in connection with this opinion and a significant portion of which is contingent upon consummation of the
Merger. In the past, UBS and its affiliates have provided investment banking services to the Company and Parent unrelated to the proposed Transaction, for which UBS and its affiliates received compensation, including, during the past two years,
having provided financial advisory services to the Company in 2015 and having acted as joint bookrunning manager with respect to public offerings of debt securities by the Company in 2015 and having acted as passive joint bookrunning manager with
respect to a public offering of debt securities by Parent in 2014. In the ordinary course of business, UBS and its affiliates may hold or trade, for their own accounts and the accounts of their customers, securities of the Company and Parent
and, accordingly, may at any time hold a long or short position in such securities. The issuance of this opinion was approved by an authorized committee of UBS.
Our opinion does not address any other aspect or implication of the Merger or the Agreement, including, without limitation, the relative
merits of the Merger or any related transaction as compared to other business strategies or transactions that might be available with respect to the Company, or the Companys underlying business decision to effect the Merger or any related
transaction. In addition, our opinion does not address any aspect or implication of the Holdco Merger or the Bank Merger. Our opinion does not constitute a recommendation to any shareholder as to how such shareholder should vote or act
with respect to the Merger or
C-1
any related transaction. At your direction, we have not been asked to, nor do we, offer any opinion as to the terms, other than the Consideration to the extent expressly specified herein, of
the Agreement or any related documents or the form of the Merger or any related transaction. In addition, we express no opinion as to the fairness of the amount or nature of any compensation to be received by any officers, directors or
employees of any parties to the Transaction, or any class of such persons, relative to the Consideration. In rendering this opinion, we have assumed, with your consent, that (i) the final executed form of the Agreement will not differ in any
material respect from the draft, dated August 5, 2016, that we have reviewed, and (ii) the Transaction will be consummated in accordance with the terms of the Agreement without any adverse waiver or amendment of any material term or condition
thereof. We also have assumed that all governmental, regulatory or other consents and approvals necessary for the consummation of the Transaction will be obtained without any material adverse effect on the Company or the Transaction.
In arriving at our opinion, we have, among other things: (i) reviewed certain publicly available business and financial information relating
to the Company; (ii) reviewed certain internal financial information and other data relating to the business and financial prospects of the Company that were not publicly available, including financial forecasts and estimates prepared by the
management of the Company that you have directed us to utilize for purposes of our analysis; (iii) conducted discussions with members of the senior management of the Company concerning the business and financial prospects of the Company; (iv)
performed a dividend discount model analysis of the Company in which we analyzed the future dividends of the Company using financial forecasts and estimates prepared by the management of the Company; (v) reviewed publicly available financial and
stock market data with respect to certain other companies we believe to be generally relevant; (vi) compared the financial terms of the Transaction with the publicly available financial terms of certain other transactions we believe to be generally
relevant; (vii) reviewed current and historical market prices of Company Common Stock; (viii) reviewed a draft, dated August 5, 2016, of the Agreement; and (ix) conducted such other financial studies, analyses and investigations, and considered
such other information, as we deemed necessary or appropriate. At your request, we have contacted third parties to solicit indications of interest in a possible transaction with the Company and held discussions with certain of these parties
prior to the date hereof.
In connection with our review, with your consent, we have assumed and relied upon, without independent
verification, the accuracy and completeness in all material respects of the information provided to or reviewed by us for the purpose of this opinion. In addition, with your consent, we have not made any independent evaluation or appraisal of
any of the assets or liabilities (contingent or otherwise) of the Company, nor have we been furnished with any such evaluation or appraisal. With respect to the financial forecasts and estimates referred to above, we have assumed, at your
direction, that they have been reasonably prepared on a basis reflecting the best currently available estimates and judgments of the management of the Company as to the future financial performance of the Company. Our opinion is necessarily
based on economic, monetary, market and other conditions as in effect on, and the information available to us as of, the date hereof.
In
addition, we have not reviewed any individual credit files nor have we made an independent evaluation or appraisal of the assets and liabilities (including any contingent, derivative or off-balance-sheet assets and liabilities) of the Company or any
of its subsidiaries and we have not been furnished with any such evaluations or appraisals. We are not experts in the evaluation of loan, lease, investment or trading portfolios for purposes of assessing the adequacy of the allowances for losses
with respect thereto and, accordingly, we have assumed that the Companys allowances for losses are adequate to cover such losses. We have undertaken no independent analysis of any potential or actual litigation, regulatory action,
possible unasserted claims or other contingent liabilities, or any settlements thereof, to which the Company is or may be a party or is or may be subject, and this opinion does not consider the potential effects of any such litigation, actions,
claims, other contingent liabilities or settlements.
Based upon and subject to the foregoing, it is our opinion that, as of the date
hereof, the Consideration to be received by holders of Company Common Stock in the Merger pursuant to the Agreement is fair, from a financial point of view, to such holders.
C-2
This opinion is provided for the benefit of the Board of Directors (in its capacity as such) in
connection with, and for the purpose of, its evaluation of the Consideration in the Transaction.
|
Very truly yours,
|
|
/s/ UBS Securities LLC
|
|
UBS SECURITIES LLC
|
C-3
Annex D
SECTION 262 OF THE DGCL
§ 262
Appraisal rights
(a) Any stockholder of a corporation of this State who holds shares of stock on the date of the making of a demand pursuant to
subsection (d) of this section with respect to such shares, who continuously holds such shares through the effective date of the merger or consolidation, who has otherwise complied with subsection (d) of this section and who has neither voted in
favor of the merger or consolidation nor consented thereto in writing pursuant to § 228 of this title shall be entitled to an appraisal by the Court of Chancery of the fair value of the stockholders shares of stock under the circumstances
described in subsections (b) and (c) of this section. As used in this section, the word stockholder means a holder of record of stock in a corporation; the words stock and share mean and include what is ordinarily
meant by those words; and the words depository receipt mean a receipt or other instrument issued by a depository representing an interest in 1 or more shares, or fractions thereof, solely of stock of a corporation, which stock is
deposited with the depository.
(b) Appraisal rights shall be available for the shares of any class or series of stock of a constituent corporation in a
merger or consolidation to be effected pursuant to § 251 (other than a merger effected pursuant to § 251(g) of this title and, subject to paragraph (b)(3) of this section, § 251(h) of this title), § 252, § 254, § 255,
§ 256, § 257, § 258, § 263 or § 264 of this title:
(1) Provided, however, that, except as expressly provided in
§ 363(b) of this title, no appraisal rights under this section shall be available for the shares of any class or series of stock, which stock, or depository receipts in respect thereof, at the record date fixed to determine the stockholders
entitled to receive notice of the meeting of stockholders to act upon the agreement of merger or consolidation, were either: (i) listed on a national securities exchange or (ii) held of record by more than 2,000 holders; and further provided that no
appraisal rights shall be available for any shares of stock of the constituent corporation surviving a merger if the merger did not require for its approval the vote of the stockholders of the surviving corporation as provided in § 251(f) of
this title.
(2) Notwithstanding paragraph (b)(1) of this section, appraisal rights under this section shall be available for the shares of
any class or series of stock of a constituent corporation if the holders thereof are required by the terms of an agreement of merger or consolidation pursuant to §§ 251, 252, 254, 255, 256, 257, 258, 263 and 264 of this title to accept for
such stock anything except:
a. Shares of stock of the corporation surviving or resulting from such merger or consolidation, or depository
receipts in respect thereof;
b. Shares of stock of any other corporation, or depository receipts in respect thereof, which shares of stock
(or depository receipts in respect thereof) or depository receipts at the effective date of the merger or consolidation will be either listed on a national securities exchange or held of record by more than 2,000 holders;
c. Cash in lieu of fractional shares or fractional depository receipts described in the foregoing paragraphs (b)(2)a. and b. of this section;
or
d. Any combination of the shares of stock, depository receipts and cash in lieu of fractional shares or fractional depository receipts
described in the foregoing paragraphs (b)(2)a., b. and c. of this section.
(3) In the event all of the stock of a subsidiary Delaware
corporation party to a merger effected under § 251(h), § 253 or § 267 of this title is not owned by the parent immediately prior to the merger, appraisal rights shall be available for the shares of the subsidiary Delaware
corporation.
(4) In the event of an amendment to a corporations certificate of incorporation contemplated by § 363(a) of this
title, appraisal rights shall be available as contemplated by § 363(b) of this title, and the procedures of this section, including those set forth in subsections (d) and (e) of this section, shall apply as nearly as practicable, with the word
amendment substituted for the words merger or consolidation, and the word corporation substituted for the words constituent corporation and/or surviving or resulting corporation.
D-1
(c) Any corporation may provide in its certificate of incorporation that appraisal rights under this section
shall be available for the shares of any class or series of its stock as a result of an amendment to its certificate of incorporation, any merger or consolidation in which the corporation is a constituent corporation or the sale of all or
substantially all of the assets of the corporation. If the certificate of incorporation contains such a provision, the provisions of this section, including those set forth in subsections (d), (e), and (g) of this section, shall apply as nearly as
is practicable.
(d) Appraisal rights shall be perfected as follows:
(1) If a proposed merger or consolidation for which appraisal rights are provided under this section is to be submitted for approval at a
meeting of stockholders, the corporation, not less than 20 days prior to the meeting, shall notify each of its stockholders who was such on the record date for notice of such meeting (or such members who received notice in accordance with §
255(c) of this title) with respect to shares for which appraisal rights are available pursuant to subsection (b) or (c) of this section that appraisal rights are available for any or all of the shares of the constituent corporations, and shall
include in such notice a copy of this section and, if 1 of the constituent corporations is a nonstock corporation, a copy of § 114 of this title. Each stockholder electing to demand the appraisal of such stockholders shares shall deliver
to the corporation, before the taking of the vote on the merger or consolidation, a written demand for appraisal of such stockholders shares. Such demand will be sufficient if it reasonably informs the corporation of the identity of the
stockholder and that the stockholder intends thereby to demand the appraisal of such stockholders shares. A proxy or vote against the merger or consolidation shall not constitute such a demand. A stockholder electing to take such action must
do so by a separate written demand as herein provided. Within 10 days after the effective date of such merger or consolidation, the surviving or resulting corporation shall notify each stockholder of each constituent corporation who has complied
with this subsection and has not voted in favor of or consented to the merger or consolidation of the date that the merger or consolidation has become effective; or
(2) If the merger or consolidation was approved pursuant to § 228, § 251(h), § 253, or § 267 of this title, then either a
constituent corporation before the effective date of the merger or consolidation or the surviving or resulting corporation within 10 days thereafter shall notify each of the holders of any class or series of stock of such constituent corporation who
are entitled to appraisal rights of the approval of the merger or consolidation and that appraisal rights are available for any or all shares of such class or series of stock of such constituent corporation, and shall include in such notice a copy
of this section and, if 1 of the constituent corporations is a nonstock corporation, a copy of § 114 of this title. Such notice may, and, if given on or after the effective date of the merger or consolidation, shall, also notify such
stockholders of the effective date of the merger or consolidation. Any stockholder entitled to appraisal rights may, within 20 days after the date of mailing of such notice or, in the case of a merger approved pursuant to § 251(h) of this
title, within the later of the consummation of the offer contemplated by § 251(h) of this title and 20 days after the date of mailing of such notice, demand in writing from the surviving or resulting corporation the appraisal of such
holders shares. Such demand will be sufficient if it reasonably informs the corporation of the identity of the stockholder and that the stockholder intends thereby to demand the appraisal of such holders shares. If such notice did not
notify stockholders of the effective date of the merger or consolidation, either (i) each such constituent corporation shall send a second notice before the effective date of the merger or consolidation notifying each of the holders of any class or
series of stock of such constituent corporation that are entitled to appraisal rights of the effective date of the merger or consolidation or (ii) the surviving or resulting corporation shall send such a second notice to all such holders on or
within 10 days after such effective date; provided, however, that if such second notice is sent more than 20 days following the sending of the first notice or, in the case of a merger approved pursuant to § 251(h) of this title, later than the
later of the consummation of the offer contemplated by § 251(h) of this title and 20 days following the sending of the first notice, such second notice need only be sent to each stockholder who is entitled to appraisal rights and who has
demanded appraisal of such holders shares in accordance with this subsection. An affidavit of the secretary or assistant secretary or of the transfer agent of the corporation that is required to give either notice that such notice has been
given shall, in the absence of fraud, be prima facie evidence of the facts stated therein. For purposes of determining the stockholders
D-2
entitled to receive either notice, each constituent corporation may fix, in advance, a record date that shall be not more than 10 days prior to the date the notice is given, provided, that if the
notice is given on or after the effective date of the merger or consolidation, the record date shall be such effective date. If no record date is fixed and the notice is given prior to the effective date, the record date shall be the close of
business on the day next preceding the day on which the notice is given.
(e) Within 120 days after the effective date of the merger or consolidation, the
surviving or resulting corporation or any stockholder who has complied with subsections (a) and (d) of this section hereof and who is otherwise entitled to appraisal rights, may commence an appraisal proceeding by filing a petition in the Court of
Chancery demanding a determination of the value of the stock of all such stockholders. Notwithstanding the foregoing, at any time within 60 days after the effective date of the merger or consolidation, any stockholder who has not commenced an
appraisal proceeding or joined that proceeding as a named party shall have the right to withdraw such stockholders demand for appraisal and to accept the terms offered upon the merger or consolidation. Within 120 days after the effective date
of the merger or consolidation, any stockholder who has complied with the requirements of subsections (a) and (d) of this section hereof, upon written request, shall be entitled to receive from the corporation surviving the merger or resulting from
the consolidation a statement setting forth the aggregate number of shares not voted in favor of the merger or consolidation and with respect to which demands for appraisal have been received and the aggregate number of holders of such shares. Such
written statement shall be mailed to the stockholder within 10 days after such stockholders written request for such a statement is received by the surviving or resulting corporation or within 10 days after expiration of the period for
delivery of demands for appraisal under subsection (d) of this section hereof, whichever is later. Notwithstanding subsection (a) of this section, a person who is the beneficial owner of shares of such stock held either in a voting trust or by a
nominee on behalf of such person may, in such persons own name, file a petition or request from the corporation the statement described in this subsection.
(f) Upon the filing of any such petition by a stockholder, service of a copy thereof shall be made upon the surviving or resulting corporation, which shall
within 20 days after such service file in the office of the Register in Chancery in which the petition was filed a duly verified list containing the names and addresses of all stockholders who have demanded payment for their shares and with whom
agreements as to the value of their shares have not been reached by the surviving or resulting corporation. If the petition shall be filed by the surviving or resulting corporation, the petition shall be accompanied by such a duly verified list. The
Register in Chancery, if so ordered by the Court, shall give notice of the time and place fixed for the hearing of such petition by registered or certified mail to the surviving or resulting corporation and to the stockholders shown on the list at
the addresses therein stated. Such notice shall also be given by 1 or more publications at least 1 week before the day of the hearing, in a newspaper of general circulation published in the City of Wilmington, Delaware or such publication as the
Court deems advisable. The forms of the notices by mail and by publication shall be approved by the Court, and the costs thereof shall be borne by the surviving or resulting corporation.
(g) At the hearing on such petition, the Court shall determine the stockholders who have complied with this section and who have become entitled to appraisal
rights. The Court may require the stockholders who have demanded an appraisal for their shares and who hold stock represented by certificates to submit their certificates of stock to the Register in Chancery for notation thereon of the pendency of
the appraisal proceedings; and if any stockholder fails to comply with such direction, the Court may dismiss the proceedings as to such stockholder. If immediately before the merger or consolidation the shares of the class or series of stock of the
constituent corporation as to which appraisal rights are available were listed on a national securities exchange, the Court shall dismiss the proceedings as to all holders of such shares who are otherwise entitled to appraisal rights unless (1) the
total number of shares entitled to appraisal exceeds 1% of the outstanding shares of the class or series eligible for appraisal, (2) the value of the consideration provided in the merger or consolidation for such total number of shares exceeds $1
million, or (3) the merger was approved pursuant to § 253 or § 267 of this title.
(h) After the Court determines the stockholders entitled to
an appraisal, the appraisal proceeding shall be conducted in accordance with the rules of the Court of Chancery, including any rules specifically governing appraisal proceedings. Through such proceeding the Court shall determine the fair value of
the shares exclusive of any element of value arising from the accomplishment or expectation of the merger or consolidation, together
D-3
with interest, if any, to be paid upon the amount determined to be the fair value. In determining such fair value, the Court shall take into account all relevant factors. Unless the Court in its
discretion determines otherwise for good cause shown, and except as provided in this subsection, interest from the effective date of the merger through the date of payment of the judgment shall be compounded quarterly and shall accrue at 5% over the
Federal Reserve discount rate (including any surcharge) as established from time to time during the period between the effective date of the merger and the date of payment of the judgment. At any time before the entry of judgment in the proceedings,
the surviving corporation may pay to each stockholder entitled to appraisal an amount in cash, in which case interest shall accrue thereafter as provided herein only upon the sum of (1) the difference, if any, between the amount so paid and the fair
value of the shares as determined by the Court, and (2) interest theretofore accrued, unless paid at that time. Upon application by the surviving or resulting corporation or by any stockholder entitled to participate in the appraisal proceeding, the
Court may, in its discretion, proceed to trial upon the appraisal prior to the final determination of the stockholders entitled to an appraisal. Any stockholder whose name appears on the list filed by the surviving or resulting corporation pursuant
to subsection (f) of this section and who has submitted such stockholders certificates of stock to the Register in Chancery, if such is required, may participate fully in all proceedings until it is finally determined that such stockholder is
not entitled to appraisal rights under this section.
(i) The Court shall direct the payment of the fair value of the shares, together with interest, if
any, by the surviving or resulting corporation to the stockholders entitled thereto. Payment shall be so made to each such stockholder, in the case of holders of uncertificated stock forthwith, and the case of holders of shares represented by
certificates upon the surrender to the corporation of the certificates representing such stock. The Courts decree may be enforced as other decrees in the Court of Chancery may be enforced, whether such surviving or resulting corporation be a
corporation of this State or of any state.
(j) The costs of the proceeding may be determined by the Court and taxed upon the parties as the Court deems
equitable in the circumstances. Upon application of a stockholder, the Court may order all or a portion of the expenses incurred by any stockholder in connection with the appraisal proceeding, including, without limitation, reasonable
attorneys fees and the fees and expenses of experts, to be charged pro rata against the value of all the shares entitled to an appraisal.
(k) From
and after the effective date of the merger or consolidation, no stockholder who has demanded appraisal rights as provided in subsection (d) of this section shall be entitled to vote such stock for any purpose or to receive payment of dividends or
other distributions on the stock (except dividends or other distributions payable to stockholders of record at a date which is prior to the effective date of the merger or consolidation); provided, however, that if no petition for an appraisal shall
be filed within the time provided in subsection (e) of this section, or if such stockholder shall deliver to the surviving or resulting corporation a written withdrawal of such stockholders demand for an appraisal and an acceptance of the
merger or consolidation, either within 60 days after the effective date of the merger or consolidation as provided in subsection (e) of this section or thereafter with the written approval of the corporation, then the right of such stockholder to an
appraisal shall cease. Notwithstanding the foregoing, no appraisal proceeding in the Court of Chancery shall be dismissed as to any stockholder without the approval of the Court, and such approval may be conditioned upon such terms as the Court
deems just; provided, however that this provision shall not affect the right of any stockholder who has not commenced an appraisal proceeding or joined that proceeding as a named party to withdraw such stockholders demand for appraisal and to
accept the terms offered upon the merger or consolidation within 60 days after the effective date of the merger or consolidation, as set forth in subsection (e) of this section.
(l) The shares of the surviving or resulting corporation to which the shares of such objecting stockholders would have been converted had they assented to the
merger or consolidation shall have the status of authorized and unissued shares of the surviving or resulting corporation.
D-4
|
|
|
|
|
|
|
VOTE BY INTERNET - www.proxyvote.com
Use the Internet to transmit your voting instructions and for electronic delivery of information up until 11:59 P.M. Eastern Time on
[ ]. Have your proxy card in hand when you access the web site and follow the instructions to obtain your records and to create an electronic voting instruction form.
ELECTRONIC DELIVERY OF FUTURE PROXY MATERIALS
If you would like to reduce the costs incurred by our company in mailing proxy materials, you can consent to receiving all future proxy statements, proxy cards
and annual reports electronically via e-mail or the Internet. To sign up for electronic delivery, please follow the instructions above to vote using the Internet and, when prompted, indicate that you agree to receive or access proxy materials
electronically in future years.
VOTE BY PHONE - 1-800-690-6903
Use any touch-tone telephone to transmit your voting instructions up until 11:59 P.M. Eastern Time on
[ ]. Have your proxy card in hand when you call and then follow the instructions.
VOTE BY MAIL
Mark, sign and date your proxy card and return
it in the postage-paid envelope we have provided or return it to Vote Processing, c/o Broadridge, 51 Mercedes Way, Edgewood, NY 11717.
|
|
|
|
TO VOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS:
x
|
|
|
|
|
KEEP THIS PORTION FOR YOUR RECORDS
DETACH AND RETURN THIS
PORTION ONLY