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Title: |
Agreement and Plan of Merger |
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Date: |
2004 |
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Preview shows 68KB of 266KB total |
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$64 |
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ID: |
#795859 |
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AGREEMENT AND PLAN OF MERGER
TABLE OF CONTENTS
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| ARTICLE I DEFINITIONS; DISCLOSURE | 1 | |||||||
| 1.01 | Certain Definitions | 1 | ||||||
| 1.02 | Other Definitional Matters | 7 | ||||||
| 1.03 | Disclosure Schedules | 7 | ||||||
| ARTICLE II THE MERGER | 8 | |||||||
| 2.01 | The Merger | 8 | ||||||
| 2.02 | Effective Date and Effective Time; Closing | 8 | ||||||
| 2.03 | Parent Merger | 9 | ||||||
| ARTICLE III CONSIDERATION; EXCHANGE PROCEDURES | 9 | |||||||
| 3.01 | Conversion of Shares | 9 | ||||||
| 3.02 | Reserved | 9 | ||||||
| 3.03 | Election Procedures | 10 | ||||||
| 3.04 | Exchange Procedures | 12 | ||||||
| 3.05 | Rights as Shareholders; Stock Transfers | 13 | ||||||
| 3.06 | No Fractional Shares | 13 | ||||||
| 3.07 | Reserved | 14 | ||||||
| 3.08 | Anti-Dilution Provisions | 14 | ||||||
| 3.09 | Withholding Rights | 14 | ||||||
| 3.10 | Company Options | 14 | ||||||
| ARTICLE IV ACTIONS PENDING ACQUISITION | 14 | |||||||
| 4.01 | Agreements of the Company | 14 | ||||||
| 4.02 | Agreements of Parent and Merger Sub | 18 | ||||||
| ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE COMPANY | 18 | |||||||
| 5.01 | Organization, Standing and Authority | 18 | ||||||
| 5.02 | Company Capital Stock | 19 | ||||||
| 5.03 | Subsidiaries | 19 | ||||||
| 5.04 | Corporate Power | 20 | ||||||
| 5.05 | Corporate Authority | 20 | ||||||
| 5.06 | Regulatory Approvals; No Defaults | 20 | ||||||
| 5.07 | Reports | 21 | ||||||
| 5.08 | Absence of Undisclosed Liabilities | 22 | ||||||
| 5.09 | Absence of Certain Changes or Events | 22 | ||||||
| 5.10 | Litigation | 23 | ||||||
| 5.11 | Regulatory Matters | 23 | ||||||
| 5.12 | Compliance with Laws | 24 | ||||||
| 5.13 | Material Contracts; Defaults | 24 | ||||||
| 5.14 | No Brokers | 25 | ||||||
| 5.15 | Employee Benefit Plans | 25 | ||||||
| 5.16 | Labor Matters | 27 | ||||||
| 5.17 | Environmental Matters | 27 | ||||||
| 5.18 | Tax Matters | 28 | ||||||
| 5.19 | Risk Management Instruments | 29 | ||||||
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| 5.20 | Investment Securities | 29 | ||||||
| 5.21 | Loans; Nonperforming and Classified Assets | 30 | ||||||
| 5.22 | Bank Owned Life Insurance | 30 | ||||||
| 5.23 | Properties | 30 | ||||||
| 5.24 | Intellectual Property | 31 | ||||||
| 5.25 | Fiduciary Accounts | 31 | ||||||
| 5.26 | Capitalization | 31 | ||||||
| 5.27 | Community Reinvestment Act, Anti-Money Laundering and Customer Information Security | 31 |
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| 5.28 | Books and Records | 31 | ||||||
| 5.29 | Insurance | 31 | ||||||
| 5.30 | Allowance for Loan Losses | 32 | ||||||
| 5.31 | Credit Card Accounts | 32 | ||||||
| 5.32 | Merchant Processing | 32 | ||||||
| 5.33 | Transactions with Affiliates | 32 | ||||||
| 5.34 | Required Vote; Antitakeover Provisions | 32 | ||||||
| 5.35 | Fairness Opinion | 32 | ||||||
| 5.36 | Transactions in Securities | 32 | ||||||
| 5.37 | Disclosure | 33 | ||||||
| ARTICLE VI REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB | 33 | |||||||
| 6.01 | Organization, Standing and Authority | 33 | ||||||
| 6.02 | Parent Stock | 33 | ||||||
| 6.03 | Subsidiaries | 33 | ||||||
| 6.04 | Corporate Power | 34 | ||||||
| 6.05 | Corporate Authority | 34 | ||||||
| 6.06 | Regulatory Approvals; No Defaults | 34 | ||||||
| 6.07 | Financial Reports And SEC Documents; Material Adverse Effect | 35 | ||||||
| 6.08 | Litigation | 36 | ||||||
| 6.09 | No Brokers | 36 | ||||||
| 6.10 | Reserved | 36 | ||||||
| 6.11 | Regulatory Matters | 36 | ||||||
| 6.12 | Ownership of Company Common Stock | 36 | ||||||
| 6.13 | Financial Ability | 37 | ||||||
| 6.14 | Compliance with Laws | 37 | ||||||
| 6.15 | Books and Records | 37 | ||||||
| 6.16 | Allowance for Loan Losses | 37 | ||||||
| 6.17 | Environmental Matters | 37 | ||||||
| 6.18 | Disclosure | 38 | ||||||
| ARTICLE VII COVENANTS | 38 | |||||||
| 7.01 | Reasonable Best Efforts | 38 | ||||||
| 7.02 | Shareholder Approval | 38 | ||||||
| 7.03 | Registration Statement | 39 | ||||||
| 7.04 | Regulatory Filings | 39 | ||||||
| 7.05 | Press Releases | 40 | ||||||
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| 7.06 | Access; Information | 40 | ||||||
| 7.07 | Affiliates | 41 | ||||||
| 7.08 | Acquisition Proposals | 41 | ||||||
| 7.09 | Certain Policies | 42 | ||||||
| 7.10 | NASDAQ Listing | 42 | ||||||
| 7.11 | Indemnification | 42 | ||||||
| 7.12 | Employment and Benefit Matters | 43 | ||||||
| 7.13 | Bank Merger | 45 | ||||||
| 7.14 | Notification of Certain Matters | 45 | ||||||
| 7.15 | Update of Disclosure Schedules | 45 | ||||||
| 7.16 | Current Information | 46 | ||||||
| 7.17 | Reserved | 46 | ||||||
| 7.18 | Section 16 Matters | 46 | ||||||
| 7.19 | Reserved | 46 | ||||||
| 7.20 | Alco Management | 46 | ||||||
| 7.21 | Reserved | 46 | ||||||
| 7.22 | Deposit Incentive Plan | 46 | ||||||
| 7.23 | System Conversion | 47 | ||||||
| 7.24 | Transition Committee | 47 | ||||||
| 7.25 | Communications to Employees; Training | 47 | ||||||
| 7.26 | Communications with Customers | 48 | ||||||
| ARTICLE VIII CONDITIONS TO CONSUMMATION OF THE MERGER | 48 | |||||||
| 8.01 | Conditions to Each Partys Obligation to Effect the Merger | 48 | ||||||
| 8.02 | Conditions to Obligation of the Company | 49 | ||||||
| 8.03 | Conditions to Obligations of Parent | 50 | ||||||
| ARTICLE IX TERMINATION | 51 | |||||||
| 9.01 | Termination | 51 | ||||||
| 9.02 | Effect of Termination; Expenses | 53 | ||||||
| 9.03 | Company Special Payment | 53 | ||||||
| ARTICLE X MISCELLANEOUS | 54 | |||||||
| 10.01 | Survival | 54 | ||||||
| 10.02 | Waiver; Amendment | 54 | ||||||
| 10.03 | Counterparts | 54 | ||||||
| 10.04 | Governing Law | 54 | ||||||
| 10.05 | Expenses | 54 | ||||||
| 10.06 | Notices | 55 | ||||||
| 10.07 | Entire Understanding; No Third Party Beneficiaries | 55 | ||||||
| 10.08 | Severability | 55 | ||||||
| 10.09 | Enforcement of the Agreement | 55 | ||||||
| 10.10 | Interpretation | 56 | ||||||
| 10.11 | Assignment | 56 | ||||||
| 10.12 | Alternative Structure | 56 | ||||||
iii
AGREEMENT AND PLAN OF MERGER, dated as of January 8, 2004 (this Agreement), by and among Independent Bank Corp. (Parent), INDB Sub, Inc. (Merger Sub) and Falmouth Bancorp, Inc. (the Company).
RECITALS
WHEREAS, the Company is a Delaware corporation, having its principal place of business in Falmouth, Massachusetts.
WHEREAS, Parent is a Massachusetts corporation, having its principal place of business in Rockland, Massachusetts.
WHEREAS, Merger Sub, a wholly-owned subsidiary of Parent, is a Massachusetts corporation, having its principal place of business in Rockland, Massachusetts.
WHEREAS, the Boards of Directors of Parent and the Company have each determined that it is advisable and in the best interests of their respective companies and their stockholders for Merger Sub to merge with and into the Company and to cause the surviving corporation to merge with and into Parent, subject to the terms and conditions set forth herein.
WHEREAS, as a condition and inducement to Parent to enter into this Agreement, each Shareholder (as defined herein) is entering into an agreement, simultaneously with the execution of this Agreement, in the form of Annex A hereto (collectively, the Voting Agreements) pursuant to which each Shareholder has agreed, among other things, to vote the Shareholders shares of Company Common Stock in favor of this Agreement.
WHEREAS, the parties desire to make certain representations, warranties and agreements in connection with the Merger and to prescribe certain conditions to the Merger;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants, representations, warranties and agreements contained herein, and intending to be legally bound hereby, the parties agree as follows:
ARTICLE I
DEFINITIONS; DISCLOSURE
1.01 Certain Definitions. The following terms are used in this Agreement with the meanings set forth below:
| Acquisition Proposal shall mean (x) a bona fide proposal by any person (other than Parent or any subsidiary of Parent) to the Company or its stockholders to engage in a Change in Control Transaction, (y) a public statement by any person (other than Parent or any subsidiary of Parent) to the Company or its stockholders of such persons intention to make a proposal to engage in a Change in Control Transaction or (z) the filing by any person (other than Parent or any subsidiary of Parent) of an application or notice with any Governmental Authority to engage in a Change in Control Transaction. | |
| Affiliate Agreement has the meaning set forth in Section 7.07. | |
| Agreement means this Agreement, as amended or modified from time to time in accordance with Section 10.02. | |
| Aggregate Cash Consideration shall be the product of (i) the number of shares of Company Common Stock outstanding immediately prior to the Effective Time multiplied by 0.50 and (ii) the Per Share Cash Consideration. | |
| Articles of Merger has the meaning set forth in Section 2.02(a). |
| Average Closing Price of the Parent Common Stock shall be determined by obtaining the closing prices per share of Parent Common Stock on NASDAQ (as reported by the Wall Street Journal or, if not reported thereby, another authoritative source), for the 14 consecutive NASDAQ trading days ending on and including the Determination Date, discarding the two highest and the two lowest closing prices, and averaging the remaining closing prices. | |
| Bank Merger has the meaning set forth in Section 7.13. | |
| Bank Merger Agreement has the meaning set forth in Section 7.13. | |
| Bank Regulator shall mean and include, any pertinent federal or state Governmental Authority charged with the supervision of banks or bank or financial holding companies or engaged in the insurance of bank deposits, including without limitation, the Federal Reserve Board, the FDIC, the Share Insurance Fund of Massachusetts, the Massachusetts Bank Commissioner and the Massachusetts Board of Bank Incorporation. | |
| Benefit Plans has the meaning set forth in Section 4.01(b)(5). | |
| BHCA means the Bank Holding Company Act of 1956, as amended. | |
| Business Day means Monday through Friday of each week, except a legal holiday recognized as such by the U.S. Government or any day on which banking institutions in the Commonwealth of Massachusetts are authorized or obligated to close. | |
| Cash Election Shares has the meaning set forth in Section 3.03(b)(ii). | |
| Certificate means any certificate which immediately prior to the Effective Time represented shares of Company Common Stock. | |
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