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Section 1: 425 (8-K)

8-K

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(D)

OF THE SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported): June 25, 2019

 

 

ORITANI FINANCIAL CORP.

(Exact name of Registrant as specified in its charter)

 

 

 

Delaware   001-34786   30-0628335

(State or Other Jurisdiction

of Incorporation)

 

(Commission

File No.)

 

(I.R.S. Employer

Identification No.)

370 Pascack Road, Township of Washington, New Jersey   07676
(Address of Principal Executive Offices)   (Zip Code)

Registrant’s telephone number, including area code: (201) 664-5400

Not Applicable

(Former name or former address, if changed since last report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

 

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class

 

Trading

Symbol(s)

 

Name of each exchange

on which registered

Common Stock   ORIT   Nasdaq Global Market

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company  ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☐

 

 

 


Item 1.01

Entry into a Material Definitive Agreement.

On June 25, 2019, Valley National Bancorp (“Valley”) entered into an Agreement and Plan of Merger (the “Merger Agreement”) with Oritani Financial Corp. (“Oritani”), providing for the merger of Oritani with and into Valley, with Valley as the surviving entity (the “Merger”). Immediately following the Merger, Oritani Bank, a New Jersey state-chartered savings bank and wholly-owned subsidiary of Oritani, will merge with and into Valley National Bank, a national banking association and wholly-owned subsidiary of Valley, with Valley National Bank surviving the merger.

Subject to the terms and conditions of the Merger Agreement, upon consummation of the Merger, each share of common stock of Oritani will be converted into 1.60 shares of Valley common stock, subject to the payment of cash in lieu of fractional shares. Outstanding Oritani stock options will be converted into options to acquire Valley common stock with the conversion and exercise price to be adjusted to reflect the exchange ratio. Oritani restricted stock will vest and will be converted into the right to receive, at the effective time of the Merger, the same consideration as holders of Oritani common stock are receiving in the Merger. Kevin J. Lynch, director, Chief Executive Officer and President of Oritani, is expected to be appointed to serve as a director of Valley and Valley National Bank as of the effective time of the Merger.

The Merger Agreement contains representations, warranties, and covenants of Valley and Oritani, including, among others, a covenant that requires (i) each of Valley and Oritani to conduct its business in the ordinary course and consistent with past practice during the period between the execution of the Merger Agreement and consummation of the Merger and (ii) Oritani to not engage in certain kinds of transactions during such period (without the prior written consent of Valley). Oritani has also agreed, subject to certain exceptions generally related to the Board’s evaluation and exercise of its fiduciary duties, to not (i) solicit proposals relating to alternative business combinations or (ii) enter into discussions or negotiations or provide confidential information in connection with any proposals for alternative business combinations.

The Merger Agreement provides certain termination rights for both Valley and Oritani. In the event Valley’s volume-weighted average share price during the 10 trading day period ending on the trading date immediately preceding the date on which the last required approval of a governmental entity is obtained with respect to the Merger has decreased by more than 20% overall and by more than 20% relative to the KBW Nasdaq Regional Banking Index compared to Valley’s volume-weighted average share price during the 10 trading day period ending on the day immediately preceding date of the Merger Agreement, then Oritani may elect to terminate the Merger Agreement unless Valley increases the exchange ratio in accordance with the Agreement. The Merger Agreement further provides that upon termination of the Merger Agreement under certain circumstances Oritani will be obligated to pay Valley a termination fee of $28 million and/or Valley’s reasonable out of pocket expenses up to $1.8 million. If the Merger Agreement is terminated under other certain circumstances, Valley will be obligated to pay Oritani up to $1.8 million of Oritani’s reasonable out of pocket expenses.

Completion of the Merger is subject to various conditions, including (i) receipt of the requisite approval (a) of the Merger by stockholders of Oritani and (b) of the issuance of Valley common stock in the Merger by stockholders of Valley, (ii) receipt of regulatory approvals, (iii) the absence of any law or order prohibiting the closing, and (iv) effectiveness of the registration statement to be filed by Valley with respect to the capital stock to be issued in the Merger. In addition, each party’s obligation to consummate the Merger is subject to certain other conditions, including the accuracy of the representations and warranties of the other party and compliance of the other party with its covenants in all material respects.

The Merger Agreement also contains representations and warranties that the parties have made to each other as of specific dates. Except for its status as a contractual document that establishes and governs the legal relations among the parties with respect to the Merger described therein, the Merger Agreement


is not intended to be a source of factual, business or operational information about the parties. The representations and warranties contained in the Merger Agreement were made only for purposes of that agreement and as of specific dates, may be subject to a contractual standard of materiality different from what a stockholder might view as material, may have been used for purposes of allocating risk between the respective parties rather than establishing matters as facts, may have been qualified by certain disclosures not reflected in the Merger Agreement that were made to the other party in connection with the negotiation of the Merger Agreement and generally were solely for the benefit of the parties to that agreement.

In connection with the execution of the Merger Agreement, all of the directors of Oritani entered into voting agreements (the “Voting Agreement”) with Valley pursuant to which such individuals, in their capacities as stockholders, have agreed, among other things, to vote their respective shares of Oritani common stock in favor of the approval of the Merger Agreement and the Merger.

The foregoing description of the Merger Agreement and the Voting Agreement is not complete and is qualified in its entirety by reference to the Merger Agreement, which is included as Exhibit 2.1, and the form of Voting Agreement, which is included as Exhibit 10.1, both of which are incorporated herein by reference.

Additional Information and Where to Find It

In connection with the proposed Merger, Valley will file with the SEC a Registration Statement on Form S-4 that will include a joint proxy statement of Valley and Oritani and a prospectus of Valley, as well as other relevant documents concerning the proposed Merger. Before making any voting or investment decisions, investors and stockholders are urged to read the Registration Statement and the joint proxy statement/prospectus regarding the proposed Merger, as well as any other relevant documents filed with the SEC and any amendments or supplements to those documents, because they will contain important information. Both Valley and Oritani will mail the joint proxy statement/prospectus to their respective stockholders. Stockholders are also urged to carefully review and consider each of Valley’s and Oritani’s public filings with the SEC, including, but not limited to, their Annual Reports on Form 10-K, their proxy statements, their Quarterly Reports on Form 10-Q, and their Current Reports on Form 8-K. Copies of the Registration Statement and joint proxy statement/prospectus and other filings incorporated by reference therein, as well as other filings containing information about Valley and Oritani, may be obtained as they become available at the SEC’s Internet site (www.sec.gov). You will also be able to obtain these documents, free of charge, from Valley at www.valley.com or from Oritani at www.oritani.com.

Participants in the Solicitation

This communication is not a solicitation of a proxy from any security holder of Oritani or Valley. However, Valley, Oritani, their respective directors and executive officers and other persons may be deemed to be participants in the solicitation of proxies from Oritani’s stockholders in respect of approval of the Merger and the solicitation of proxies from Valley’s stockholders in respect of approval of the issuance of shares of common stock of Valley in connection with the Merger. Information regarding the directors and executive officers of Valley may be found in its definitive proxy statement relating to its 2019 Annual Meeting of Stockholders, which was filed with the Commission on March 8, 2019 and in its Annual Report on Form 10-K for the year ended December 31, 2018, each of which can be obtained free of charge from Valley’s website. Information regarding the directors and executive officers of Oritani may be found in its definitive proxy statement relating to its 2018 Annual Meeting of Stockholders, which was filed with the Commission on August 29, 2018 and in its Annual Report on Form 10-K for the year ended June 30, 2018, each of which can be obtained free of charge from Oritani’s website. Other information regarding the participants in the proxy solicitation and a description of their direct and indirect interests, by security holdings or otherwise, will be contained in the joint proxy statement/prospectus and other relevant materials to be filed with the SEC when they become available.


Forward Looking Statements

This Current Report on Form 8-K contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. These forward-looking statements include, but are not limited to, statements about (1) the benefits of the merger between Valley and Oritani, including anticipated future results, cost savings and accretion to reported earnings that may be realized from the merger; (2) Valley’s and Oritani’s plans, objectives, expectations and intentions and other statements contained in this presentation that are not historical facts; and (3) other statements identified by words such as “expects,” “anticipates,” “intends,” “plans,” “believes,” “seeks,” “estimates” or words of similar meaning.

Forward-looking statements involve risks and uncertainties that may cause actual results to differ materially from those in such statements. The following factors, among others, could cause actual results to differ materially from the anticipated results expressed in the forward-looking statements: the businesses of Valley and Oritani may not be combined successfully, or such combination may take longer than expected; the cost savings from the Merger may not be fully realized or may take longer than expected; operating costs, customer loss and business disruption following the Merger may be greater than expected; governmental approvals of the Merger may not be obtained, or adverse regulatory conditions may be imposed in connection with governmental approvals of the Merger or otherwise; the stockholders of Oritani and/or Valley may fail to approve the Merger; credit and interest rate risks associated with Valley’s and Oritani’s respective businesses; and difficulties associated with achieving expected future financial results. Additional factors that could cause actual results to differ materially from those expressed in the forward-looking statements are discussed in Valley’s and Oritani’s reports (such as the Annual Report on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K) filed with the SEC and available at the SEC’s Internet site. All subsequent written and oral forward-looking statements concerning the proposed transaction or other matters attributable to Valley or Oritani or any person acting on their behalf are expressly qualified in their entirety by the cautionary statements above. Except as required by law, Valley and Oritani do not undertake any obligation to update any forward-looking statement to reflect circumstances or events that occur after the date the forward-looking statement is made.

 

Item 8.01

Other Events

On June 26, 2019, Valley and Oritani issued a joint press release announcing the execution of the Merger Agreement. A copy of the joint press release is attached hereto as Exhibit 99.1.


Item 9.01

Financial Statements and Exhibits

 

  (a)

Financial Statements of Businesses Acquired. Not applicable.

 

  (b)

Pro Forma Financial Information. Not applicable.

 

  (c)

Shell Company Transactions. Not applicable.

 

  (d)

Exhibits.

 

Exhibit

    No.    

  

Description

  2.1    Agreement and Plan of Merger, dated as of June 25, 2019, between Valley National Bancorp and Oritani Financial Corp.*
10.1    Form of Voting Agreement
99.1    Joint Press Release dated June 26, 2019

 

*

Schedules and exhibits have been omitted pursuant to Item 601(b)(2) of Regulation S-K.


SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

      ORITANI FINANCIAL CORP.
Date: June 26, 2019     By:  

/s/ Kevin J. Lynch

      Kevin J. Lynch
      President and Chief Executive Officer
(Back To Top)

Section 2: EX-2.1 (EX-2.1)

EX-2.1

Exhibit 2.1

Execution Version

AGREEMENT AND PLAN OF MERGER

Dated as of June 25, 2019

Between

VALLEY NATIONAL BANCORP

and

ORITANI FINANCIAL CORP.


TABLE OF CONTENTS

 

         Page  

ARTICLE I. - THE MERGER

     1  

1.1

 

The Merger

     1  

1.2

 

Effect of the Merger

     1  

1.3

 

Certificate of Incorporation

     2  

1.4

 

Bylaws

     2  

1.5

 

Directors and Officers

     2  

1.6

 

Closing Date, Closing and Effective Time

     2  

1.7

 

The Bank Merger

     2  

ARTICLE II. - CONVERSION OF ORITANI COMMON STOCK AND OPTIONS

     2  

2.1

 

Conversion of Oritani Common Stock; Exchange Ratio; Cash in Lieu of Fractional Shares

     2  

2.2

 

Exchange of Shares

     4  

2.3

 

Treatment of Oritani Stock Options and Restricted Stock

     5  

2.4

 

Valley Shares

     6  

2.5

 

Tax Consequences

     6  

ARTICLE III. - REPRESENTATIONS AND WARRANTIES OF ORITANI

     6  

3.1

 

Corporate Organization

     7  

3.2

 

Capitalization

     8  

3.3

 

Authority; No Violation

     9  

3.4

 

Financial Statements

     10  

3.5

 

Financial Advisor Fees and Other Fees

     11  

3.6

 

Absence of Certain Changes or Events

     12  

3.7

 

Legal Proceedings

     12  

3.8

 

Taxes and Returns

     12  

3.9

 

Employee Benefit Plans

     14  

3.10

 

Reports

     17  

3.11

 

Compliance with Applicable Law

     17  

3.12

 

Certain Contracts

     18  

3.13

 

Properties and Insurance

     19  

3.14

 

Minute Books

     20  

3.15

 

Environmental Matters

     20  

3.16

 

Reserves

     21  

3.17

 

No Excess Parachute Payments or Non-Deductible Payments under Section 162(m)

     22  

3.18

 

Agreements with Bank Regulators

     22  

3.19

 

Insider Loans

     22  

3.20

 

Reports; Internal and Disclosure Controls

     23  

 

i


3.21

 

Loan Matters

     24  

3.22

 

Intellectual Property

     25  

3.23

 

Antitakeover Provisions

     25  

3.24

 

Indemnification

     26  

3.25

 

Reorganization

     26  

3.26

 

Investment Securities; Borrowings; Deposits

     26  

3.27

 

Vote Required

     26  

3.28

 

Questionable Payments

     27  

3.29

 

Anti-Money Laundering Laws

     27  

3.30

 

OFAC

     27  

3.31

 

Disclosure

     27  

ARTICLE IV. - REPRESENTATIONS AND WARRANTIES OF VALLEY

     28  

4.1

 

Corporate Organization

     28  

4.2

 

Capitalization

     28  

4.3

 

Authority; No Violation

     29  

4.4

 

Financial Statements

     30  

4.5

 

Brokerage Fees

     31  

4.6

 

Absence of Certain Changes or Events

     31  

4.7

 

Absence of Acceleration and Other Benefits

     31  

4.8

 

Valley Common Stock

     31  

4.9

 

Legal Proceedings

     31  

4.10

 

Taxes and Returns

     32  

4.11

 

Employee Benefit Plans

     33  

4.12

 

Compliance with Applicable Law

     34  

4.13

 

Environmental Matters

     34  

4.14

 

Reserves

     35  

4.15

 

Agreements with Bank Regulators

     35  

4.16

 

SEC Documents; Other Reports; Internal and Disclosure Controls

     36  

4.17

 

Certain Contracts

     37  

4.18

 

Loan Matters

     37  

4.19

 

Reports

     38  

4.20

 

Questionable Payments

     39  

4.21

 

Anti-Money Laundering Laws

     39  

4.22

 

Vote Required

     39  

4.23

 

OFAC

     39  

4.24

 

Properties

     40  

4.25

 

Reorganization

     40  

4.26

 

Investment Securities

     40  

4.27

 

Disclosures

     40  

ARTICLE V. - COVENANTS OF THE PARTIES

     41  

5.1

 

Conduct of the Business of Oritani and Valley

     41  

5.2

 

Negative Covenants and Dividend Covenants

     41  

5.3

 

No Solicitation

     44  

 

ii


5.4

 

Current Information

     46  

5.5

 

Access to Properties and Records; Confidentiality

     47  

5.6

 

Regulatory Matters

     47  

5.7

 

Approval of Shareholders

     50  

5.8

 

Further Assurances

     50  

5.9

 

Public Announcements

     50  

5.10

 

Failure to Fulfill Conditions

     51  

5.11

 

Disclosure Delivery and Disclosure Supplements

     51  

5.12

 

Indemnification

     51  

5.13

 

Employment and Director Matters; Other Post-Closing Items

     53  

5.14

 

Tax-Free Reorganization Treatment

     54  

5.15

 

Bank Policies and Bank Mergers

     55  

5.16

 

Section 16 Matters

     56  

5.17

 

Shareholder Litigation

     56  

5.18

 

Transaction Expenses of Oritani

     56  

5.19

 

Representation on Valley Board and VNB Board

     56  

ARTICLE VI. - CLOSING CONDITIONS

     57  

6.1

 

Conditions of Each Party’s Obligations Under this Agreement

     57  

6.2

 

Conditions to the Obligations of Valley Under this Agreement

     58  

6.3

 

Conditions to the Obligations of Oritani Under this Agreement

     58  

ARTICLE VII. - TERMINATION

     59  

7.1

 

Termination

     59  

7.2

 

Effect of Termination

     62  

7.3

 

Termination Fee; Expenses

     62  

ARTICLE VIII. - MISCELLANEOUS

     63  

8.1

 

Expenses

     63  

8.2

 

Notices

     63  

8.3

 

Parties in Interest

     64  

8.4

 

Entire Agreement

     64  

8.5

 

No Third Party Beneficiaries

     64  

8.6

 

Severability

     65  

8.7

 

Counterparts; PDF Signatures

     65  

8.8

 

Governing Law; Jurisdiction

     65  

8.9

 

Descriptive Headings

     65  

8.10

 

Survival

     65  

 

Exhibit A – Voting Agreement

     A-1  

Exhibit B – Bank Merger Agreement

     B-1  

 

iii


THIS AGREEMENT AND PLAN OF MERGER, dated as of June 25, 2019 (this “Agreement”), is between Valley National Bancorp, a New Jersey corporation and registered bank holding company (“Valley”), and Oritani Financial Corp., a Delaware corporation and registered savings and loan holding company (“Oritani”).

RECITALS

WHEREAS, the Boards of Directors of Valley and Oritani have determined that it is in the best interests of their respective companies and their respective shareholders, to consummate the strategic business combination transaction provided for herein, pursuant to which (i) Oritani will be merged with and into Valley with Valley as the surviving corporation and, (ii) immediately thereafter, Oritani Bank, a New Jersey state-chartered savings bank (the “Bank”) and wholly owned subsidiary of Oritani, will be merged with and into Valley National Bank, a national banking association (“VNB”) and wholly owned subsidiary of Valley, with VNB as the surviving bank, and Oritani shareholders receiving the consideration hereinafter set forth.

WHEREAS, it is the intention of the parties that the Merger (as hereinafter defined), for federal income tax purposes, shall qualify as a “reorganization” within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the “Code”) and this Agreement is intended to be, and is adopted as, a plan of reorganization for purposes of Sections 354, 361 and 368 of the Code and within the meaning of Treasury Regulation section 1.368-2(g).

WHEREAS, concurrently with the execution and delivery of this Agreement, the directors of Oritani have entered into Voting Agreements (the “Voting Agreements”) in the form attached hereto as Exhibit A.

WHEREAS, the parties desire to make certain representations, warranties, covenants and agreements in connection with the Merger and also to prescribe certain conditions precedent to the consummation of the Merger.

NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and agreements contained herein, and intending to be legally bound, the parties hereto agree as follows:

ARTICLE I. - THE MERGER

1.1    The Merger. Subject to the terms and conditions of this Agreement, at the Effective Time (as hereafter defined), Oritani shall be merged with and into Valley (the “Merger”) in accordance with the New Jersey Business Corporation Act (the “NJBCA”) and the Delaware General Corporation Law (the “DGCL”) and Valley shall be the surviving corporation (the “Surviving Corporation”). Immediately following the Effective Time, the Bank shall be merged with and into VNB as provided in Section 1.7 hereof.

1.2    Effect of the Merger. The Merger shall have the effects as set forth in the NJBCA and the DGCL.

 

1


1.3    Certificate of Incorporation. The certificate of incorporation of Valley as it exists immediately prior to the Effective Time shall not be amended by the Merger, but shall continue as the certificate of incorporation of the Surviving Corporation until otherwise amended as provided by law.

1.4    Bylaws. The bylaws of Valley as they exist immediately prior to the Effective Time shall continue as the bylaws of the Surviving Corporation until otherwise amended as provided by law.

1.5    Directors and Officers. Subject to Section 5.19, the directors and officers of Valley as of the Effective Time shall continue as the directors and officers of the Surviving Corporation.

1.6    Closing Date, Closing and Effective Time. Unless a different date, time and/or place are agreed to in writing by the parties hereto, the closing of the Merger (the “Closing”) shall take place by electronic (PDF), facsimile or overnight courier exchange of executed documents, or at 10:00 a.m., at the offices of Valley, 1455 Valley Road, Wayne, NJ, on a date (the “Closing Date”) which is the last day of the month which is three (3) business days following the last to occur of the receipt of all necessary regulatory and governmental approvals and consents and the expiration of all statutory waiting periods in respect thereof and the satisfaction or waiver of all of the conditions to the consummation of the Merger specified in Article VI hereof (other than the delivery of certificates, opinions and other instruments and documents to be delivered at the Closing). Simultaneous with the Closing, Valley and Oritani shall cause to be filed a certificate of merger, in form and substance satisfactory to Valley and Oritani, with the Department of Treasury of the State of New Jersey and the Secretary of State of the State of Delaware (the “Certificate of Merger”). The Certificate of Merger shall specify as the “Effective Time” of the Merger a date and time following the Closing agreed to by Valley and Oritani (which date and time the parties agree will be at 12:01 am on the date following the Closing Date).

1.7    The Bank Merger. Immediately following the Effective Time, the Bank shall be merged with and into VNB (the “Bank Merger”) in accordance with the provisions of the National Bank Act and, to the extent applicable, the relevant banking statutes of the State of New Jersey (the “Banking Law”) and the regulations of the New Jersey Department of Banking and Insurance (the “NJDOBI”), and VNB shall be the surviving bank. The Bank Merger shall have the effects as set forth in the National Bank Act and the Banking Law. Oritani and Valley shall cause the Boards of Directors of the Bank and VNB, respectively, to approve a separate merger agreement (the “Bank Merger Agreement”) in substantially the form of Exhibit B, annexed hereto, and cause the Bank Merger Agreement to be executed and delivered as soon as practicable following the date of execution of this Agreement.

ARTICLE II. - CONVERSION OF ORITANI COMMON STOCK AND OPTIONS

2.1    Conversion of Oritani Common Stock; Exchange Ratio; Cash in Lieu of Fractional Shares.

(a)    At the Effective Time, subject to the other provisions of this Section 2.1 and Section 2.2, each share of common stock, $0.01 par value per share, of Oritani (“Oritani Common

 

2


Stock”) issued and outstanding immediately prior to the Effective Time (other than Excluded Shares (as hereinafter defined) and including all unvested restricted stock awards), shall by virtue of the Merger and without any action on the part of Oritani, Valley or the holder thereof, cease to be outstanding and shall be converted into and become the right to receive that number of shares of common stock, no par value, of Valley (“Valley Common Stock”) equal to the Exchange Ratio (as hereinafter defined). No fractional shares of Valley Common Stock will be issued, and in lieu thereof, at the Effective Time each holder of Oritani Common Stock who would otherwise be entitled to a fractional interest of Valley Common Stock will receive an amount in cash determined by multiplying such fractional interest by the Average Closing Price as defined below. For purposes of this Section 2.1, the following terms shall have the following meanings:

(A)     “Average Closing Price” shall mean the average of the closing-sale prices of Valley Common Stock on the Nasdaq Global Select Market (“NASDAQ”) as reported by Bloomberg Financial Markets for the five (5) full Trading Days ending on the Trading Day immediately preceding the Closing Date.

(B)    “Exchange Ratio” shall mean 1.60.

(C)    “Trading Day” shall mean a day for which a closing price of a share of Valley Common Stock on NASDAQ is reported by Bloomberg Financial Markets.

(b)    At the Effective Time, all shares of Oritani Common Stock held by Oritani in its treasury or owned by Valley or by any of Valley’s Subsidiaries (other than shares held as trustee or in a fiduciary capacity and shares held as collateral on or in lieu of a debt previously contracted) (“Excluded Shares”) shall be canceled and shall cease to exist and no Merger Consideration (as hereinafter defined) shall be delivered in exchange therefor.

(d)    On and after the Effective Time, holders of certificates which immediately prior to the Effective Time represented outstanding shares of Oritani Common Stock (the “Certificates”), it being understood that any reference herein to “Certificates” shall be deemed to include reference to book-entry account statements relating to the ownership of shares of Oritani Common Stock, shall cease to have any rights as shareholders of Oritani, except the right to receive the consideration set forth in this Section 2.1 for each such share held by them. The Valley Common Stock and cash in lieu of fractional shares, which any one Oritani shareholder may receive pursuant to this Section 2.1 is referred to herein as the “Merger Consideration” and the total number of shares of Valley Common Stock, plus any cash in lieu of fractional shares which all of Oritani shareholders are entitled to receive pursuant to this Section 2.1 is referred to herein as the “Aggregate Merger Consideration”.

(e)    Notwithstanding any provision herein to the contrary, if, during the period from the date hereof to the Effective Time, the shares of Valley Common Stock shall be changed into a different number or class of shares by reason of any reclassification, recapitalization, split-up, combination, exchange of shares or readjustment, or a stock dividend thereon shall be declared with a record date within said period, appropriate adjustments shall be made to the Exchange Ratio to provide the Oritani shareholders with the equivalent value of the Merger Consideration set forth in this Section 2.1.

 

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2.2    Exchange of Shares.

(a)    Oritani and Valley hereby appoint American Stock Transfer and Trust Company as the exchange agent (the “Exchange Agent”) for purposes of effecting the conversion of Oritani Common Stock. Not later than five (5) business days after the Effective Time, Valley shall cause the Exchange Agent to mail to each holder of record of Oritani Common Stock as of the Effective Time (a “Record Holder”) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent), and instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration as provided in Section 2.1 hereof.

(b)    Upon surrender of Certificates for exchange and cancellation to the Exchange Agent, together with such letter of transmittal, duly completed and executed, the Record Holder shall be entitled to promptly, but in no event later than five (5) business days, receive in exchange for such Certificates the Merger Consideration which such Record Holder has the right to receive pursuant to Section 2.1 hereof. Certificates so surrendered shall be canceled. As soon as practicable, but no later than five (5) business days following receipt of the properly completed letter of transmittal and any necessary accompanying documentation, Valley shall cause the Exchange Agent to distribute the Merger Consideration. The Exchange Agent shall not be obligated to deliver or cause to be delivered to any Record Holder the consideration to which such Record Holder would otherwise be entitled until such Record Holder surrenders the Certificates for exchange or, in default thereof, an appropriate Affidavit of Loss and Indemnity Agreement and bond in such reasonable amount as may be required in each case by Valley. Notwithstanding the time of surrender of the Certificates, Record Holders shall be deemed shareholders of Valley for all purposes from the Effective Time, except that Valley shall withhold the payment of dividends from any Record Holder until such Record Holder effects the exchange of Certificates for Valley Common Stock. Such Record Holder shall receive such withheld dividends, without interest, upon effecting the share exchange.

(c)    After the Effective Time, there shall be no transfers on the stock transfer books of Oritani of the shares of Oritani Common Stock which were outstanding immediately prior to the Effective Time and, if any Certificates representing such shares are presented for transfer, they shall be canceled and exchanged for the consideration as provided in Section 2.1 hereof.

(d)    If payment of the consideration pursuant to Section 2.1 hereof is to be made in a name other than that in which the Certificates surrendered in exchange therefor is registered, it shall be a condition of such payment that the Certificates so surrendered shall be properly endorsed (or accompanied by an appropriate instrument of transfer) and otherwise in proper form for transfer, and that the person requesting such payment shall pay to the Exchange Agent in advance any transfer or other Taxes required by reason of the payment to a person other than that of the registered holder of the Certificates surrendered, or required for any other reason, or shall establish to the satisfaction of the Exchange Agent that such Tax has been paid or is not payable.

(e)    Valley and the Exchange Agent shall be entitled to rely upon Oritani’s stock transfer books to establish the identity of those persons entitled to receive the Merger Consideration, which books shall be conclusive with respect thereto. In the event of a dispute with

 

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respect to ownership of stock represented by any Certificate, Valley and the Exchange Agent shall be entitled to deposit any Merger Consideration or dividends or distributions thereon represented thereby in escrow with an independent third party and thereafter be relieved with respect to any claims thereto.

(f)    Immediately prior to the Effective Time, Valley shall deposit, or shall cause to be deposited, with the Exchange Agent for the benefit of the holders of Oritani Common Stock, for exchange in accordance with this Section 2.2, certificates (or other electronic evidence) representing the shares of Valley Common Stock to be issued to Oritani shareholders as part of the Aggregate Merger Consideration plus the cash in lieu of fractional shares of Valley Common Stock.

2.3    Treatment of Oritani Stock Options and Restricted Stock.

(a)    All options which may be exercised for issuance of Oritani Common Stock (each, a “Oritani Stock Option” and collectively the “Oritani Stock Options”) are described in the Oritani Disclosure Schedule and are issued and outstanding pursuant to the Oritani stock plans described in the Oritani Disclosure Schedule (collectively, the “Oritani Stock Plans”) and the forms of agreements pursuant to which such Oritani Stock Options were granted (each, an “Option Grant Agreement”).

(b)    At the Effective Time, Valley shall assume and adopt each of the Oritani Stock Plans and all of the rights, powers, discretions, obligations and duties of Oritani thereunder, and each outstanding Oritani Stock Option granted to an eligible individual under any Oritani Stock Plan shall vest only to the extent set forth in the relevant Oritani Stock Plan and Option Grant Agreement, and be converted into an option to purchase Valley Common Stock (a “Valley Stock Option”), wherein (x) the number of shares of Valley Common Stock subject to the Valley Stock Option shall be equal to the number of shares of Oritani Common Stock subject to the Oritani Stock Option multiplied by the Exchange Ratio (rounded down to the next whole share), and (y) the exercise price per share of Valley Common Stock subject to the Valley Stock Option shall be equal to the option exercise price per share of Oritani Common Stock subject to the Oritani Stock Option that is being converted divided by the Exchange Ratio (rounded up to the next whole cent) and (z) in all other respects the Oritani Stock Option shall be subject to the terms and conditions of the applicable Oritani Stock Plan and the relevant Option Grant Agreement as in effect immediately prior to the Effective Time and for any options which are “incentive stock options” (as defined in Section 422 of the Code), the adjustments shall be and are intended to be effected in a manner which is consistent with Section 424(a) of the Code. Shares of Valley Common Stock issuable upon exercise of Stock Options shall be covered by an effective registration statement on Form S-8 (or, to the extent that Form S-8 is not available for such purpose, an effective registration statement on Form S-3 or another available form), and Valley shall file a registration statement on Form S-8 (or other available form) covering such shares as soon as practicable, and in any event within five (5) business days, after the Effective Time. Concurrently with, or as soon as practicable following, the execution of this Agreement, Valley shall reserve, from its authorized but unissued or treasury shares, a sufficient number of shares of Valley Common Stock to provide for the shares issuable upon exercise of the Valley Stock Options.

 

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(c)    At or prior to the Effective Time, each share of Oritani restricted stock (“Oritani Restricted Stock”) under a Oritani Stock Plan which is outstanding immediately prior to the Effective Time, shall, by virtue of this Agreement and without any action on the part of the holder thereof, become vested only to the extent set forth under the relevant Oritani Stock Plan and award agreement for such Oritani Restricted Stock and shall be converted into the right to receive, at the Effective Time, and without duplication, the same consideration as holders of Oritani Common Stock are receiving in the Merger, provided, however, that with respect to any share of Oritani Restricted Stock that constitutes “deferred compensation” within the meaning of Section 409A of the Code, such conversion and settlement shall occur on the date that it would otherwise occur under the applicable award agreement absent the application of this Section 2.3(d) to the extent necessary to avoid the imposition of any penalty or other Taxes under Section 409A of the Code. Any shares of Oritani Restricted Stock that do not so vest shall remain outstanding, subject to adjustment as provided under the relevant Oritani Stock Plan and award agreement for such Oritani Restricted Stock.

(d)    At or prior to the Effective Time, (i) Oritani, the Oritani Board of Directors or the compensation committee of such board, and (ii) Valley, the Valley Board of Directors or the compensation committee of such board, as applicable, shall adopt any resolutions and take any actions (including obtaining any employee consents) that may be necessary to effectuate the provisions of this Section 2.3.

2.4    Valley Shares. The shares of Valley Common Stock outstanding at the Effective Time shall not be affected by the Merger, but along with the additional shares of Valley Common Stock to be issued as provided in Section 2.1 hereof, shall become the outstanding common stock of the Surviving Corporation.

2.5    Tax Consequences. It is intended that the Merger shall constitute a “reorganization” within the meaning of Section 368(a) of the Code and that this Agreement shall constitute a “plan of reorganization” within the meaning of Treasury Regulation Section 1.368-2(g).

ARTICLE III. - REPRESENTATIONS AND WARRANTIES OF ORITANI

References herein to “Oritani Disclosure Schedule” shall mean all of the disclosure schedules dated as of the date hereof and referenced to the specific sections and subsections of this Agreement, which have been delivered on the date hereof by Oritani to Valley. As used in this Agreement, the term “Material Adverse Effect” means, with respect to Oritani or Valley, as the case may be, an effect which (i) is material and adverse to the business, assets, liabilities, financial condition or results of operations of such party and its Subsidiaries on a consolidated basis, or (ii) prevents or materially impairs or would be reasonably likely to prevent or materially impair the ability of such party and its Subsidiaries to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not be deemed to include the impact of (a) changes in laws and regulations affecting banks or thrift institutions or their holding companies generally, or interpretations thereof by courts or governmental agencies, unless it uniquely or disproportionately affects either or both of the parties or any of their Subsidiaries, (b) changes in United States Generally Accepted Accounting Principles (“GAAP”) or regulatory accounting principles generally applicable to financial institutions and their holding companies,

 

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unless it uniquely or disproportionately affects either or both of the parties or any of their Subsidiaries, (c) actions and omissions of a party hereto (or any of its Subsidiaries) taken with the prior written consent of the other party, (d) the impact of the announcement of this Agreement and the transactions contemplated hereby, and compliance with this Agreement on the business, financial condition or results of operations of the parties and their respective Subsidiaries, including the expenses (inclusive of any change in control, severance and related payments to be made to employees prior to the Closing Date) incurred by the parties hereto in consummating the transactions contemplated by this Agreement (and any loss of personnel subsequent to the date of this Agreement), (e) changes in national or international political or social conditions, including the engagement by the United States in hostilities, whether or not pursuant to the declaration of a national emergency or war, or the occurrence of any military or terrorist attack upon or within the United States or any of its territories, possessions or diplomatic or consular offices or upon any military installation, equipment or personnel of the United States, unless it uniquely or disproportionately affects either or both of the parties or any of their Subsidiaries, (f) any change in the value of the securities or loan portfolio, or any change in the value of the deposits or borrowings, of Oritani or Valley, or any of their Subsidiaries, respectively, resulting from a change in interest rates generally, or (g) changes resulting from securities markets in general (including the disruption thereof and any decline in price of any security or market index). For the purposes of this Agreement, “knowledge” shall mean, with respect to a party hereto, actual knowledge of the members of the Board of Directors of that party, any executive officer of that party with the title ranking not less than executive vice president and that party’s corporate secretary. Oritani hereby represents and warrants to Valley as follows:

3.1    Corporate Organization. (a) Oritani is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. Oritani 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 and is duly licensed or qualified to do business and in good standing 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 or in good standing would not have, or would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on Oritani. Oritani is registered as a savings and loan holding company under the Home Owners’ Loan Act, as amended.

(b)    All of the Subsidiaries of Oritani are listed in the Oritani Disclosure Schedule with a designation of which Subsidiaries are Significant Subsidiaries (as hereinafter defined). For purposes of this Agreement, a “Subsidiary” shall mean any corporation, partnership, joint venture, limited liability company or other entity of which at least a majority of the capital stock or other ownership interest having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are at the time directly or indirectly owned by such person. As used in this Agreement, the term “Significant Subsidiary” shall mean each Subsidiary which is a “significant subsidiary” as defined in Regulation S-X, promulgated by the United States Securities and Exchange Commission (the “SEC”), as in effect as of the date hereof. Each Significant Subsidiary of Oritani is duly organized, validly existing and in good standing under the laws of its state of incorporation or organization. The Bank is a savings bank chartered under the laws of the State of New Jersey whose deposits are insured by the Federal Deposit Insurance Corporation (the “FDIC”) to the fullest extent permitted by law. Each Significant

 

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Subsidiary of Oritani has the 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 in all material respects 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 of each of the foregoing would not have a Material Adverse Effect on Oritani. The Oritani Disclosure Schedule sets forth true and complete copies of the certificate of incorporation, articles of association, bylaws or other comparable formation and governing documents of Oritani, the Bank, each Oritani Significant Subsidiary and the Oritani Bank Charitable Foundation (the “Foundation”) as in effect on the date hereof (the “Oritani Charter Documents”). Except as set forth in the Oritani Disclosure Schedule, Oritani has not amended any Oritani Charter Documents since January 1, 2019. Except as set forth in the Oritani Disclosure Schedule, Oritani does not own or control, directly or indirectly, any real estate, except (i) real estate acquired through foreclosure or deed in lieu of foreclosure in each individual instance with a fair market value less than $750,000 and (ii) real estate used for its banking premises.

3.2    Capitalization. (a) The authorized capital stock of Oritani consists of 150,000,000 shares of Oritani Common Stock. As of the date hereof, there were 45,097,052 shares of Oritani Common Stock issued and outstanding. As of the date hereof, except for 2,222,691 shares of Oritani Common Stock issuable upon exercise of outstanding Oritani Stock Options granted pursuant to the Oritani Stock Plans, there were no shares of Oritani Common Stock issuable upon the exercise of outstanding stock options, warrants or otherwise or as employee equity awards. All issued and outstanding shares of Oritani Common Stock have been duly authorized and validly issued, are fully paid, and nonassessable. The authorized capital stock of the Bank consists of 2,000,000 shares of common stock, $2.00 par value per share. As of the date hereof, there were 250,000 shares of the Bank common stock outstanding. Except as set forth in the Oritani Disclosure Schedule, neither Oritani nor any Oritani Subsidiary has or is bound by any outstanding subscriptions, options, warrants, calls, commitments or agreements of any character calling for the transfer, purchase or issuance of any shares of capital stock of Oritani or any Oritani Subsidiary or any securities representing the right to purchase or otherwise receive any shares of such capital stock or any securities convertible into or representing the right to purchase or subscribe for any such shares, and there are no agreements or understandings with respect to voting of any such shares.

(b)    The Oritani Disclosure Schedule contains a list setting forth as of the date of this Agreement (i) all outstanding Oritani Stock Options, the names of the option holders, the date each such option was granted, the number of shares subject to each such option, the expiration date of each such option, any vesting schedule with respect to an option which is not yet fully vested, and the price at which each such option may be exercised and (ii) comparable information for any other outstanding awards under the Oritani Stock Plans or otherwise, including, without limitation, Oritani Restricted Stock. Each Oritani Stock Option intended to qualify as an “incentive stock option” under Section 422 of the Code so qualifies. The exercise price of each Oritani Stock Option is not less than the fair market value of a share of Oritani Common Stock as determined on the date of grant of such Oritani Stock Option and within the meaning of Section 409A of the Code and associated guidance set forth by the United States Department of the Treasury. Oritani has made available to Valley true and complete copies of all Oritani Stock Plans and the forms of all award agreements and other agreements evidencing outstanding Oritani Stock Options.

 

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(c)    The Oritani Disclosure Schedule lists the name(s), jurisdiction of incorporation or organization, authorized and outstanding shares of capital stock and record and beneficial owners of such capital stock for each Subsidiary of Oritani. Except as set forth in the Oritani Disclosure Schedule, Oritani owns, directly or indirectly, all of the issued and outstanding shares of capital stock of or all other equity interests in each of Oritani’s Subsidiaries, free and clear of any lien, claim, charge, mortgage, pledge, security interest, restriction, encumbrance or security interest (“Liens”), and all of such shares are duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights. Neither Oritani nor any Subsidiary of Oritani has or is bound by any right with respect to the capital stock or any other equity security of any Subsidiary of Oritani.

(d)    Except (i) as disclosed in the Oritani Disclosure Schedule, (ii) for Oritani’s ownership in its Subsidiaries, (iii) for securities held for the benefit of third parties in trust accounts, managed accounts and the like for the benefit of customers, (iv) for securities acquired after the date of this Agreement in satisfaction of debts previously contracted in good faith, and (v) unmarketable Federal Home Loan Bank and Federal Reserve Bank stock, neither Oritani nor any of its Subsidiaries beneficially owns or controls, directly or indirectly, any shares of stock or other equity interest in any corporation, firm, partnership, joint venture or other entity.

(e)    The Oritani Disclosure Schedule contains complete information about all indebtedness of Oritani, including, without limitation, title of security, issue date, principal amount, interest rate, amount of current indebtedness and names of current holders thereof. Except as set forth in the Oritani Disclosure Schedule, no bonds, debentures, trust-preferred securities or other similar indebtedness of Oritani (parent company only) are issued or outstanding.

(f)    The Oritani Disclosure Schedule contains a list (by date and volume) of market repurchases of Oritani Common Stock made by Oritani since January 1, 2019.

3.3    Authority; No Violation.

(a)    Subject to the approval of this Agreement and the transactions contemplated hereby by the shareholders of Oritani, and subject to the parties obtaining all necessary regulatory approvals, Oritani has full corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby in accordance with the terms hereof and the Bank has full corporate power and authority to execute and deliver the Bank Merger Agreement and to consummate the transactions contemplated thereby in accordance with the terms thereof. On or prior to the date of this Agreement, Oritani’s Board of Directors, by resolutions duly adopted by unanimous vote of those voting at a meeting duly called and held, (i) determined that this Agreement and the Merger are in the best interests of Oritani and its shareholders and declared the Merger and the other transactions contemplated hereby to be advisable, (ii) approved this Agreement, the Merger and the other transactions contemplated hereby and (iii) resolved to recommend that the shareholders of Oritani approve this Agreement at the Oritani Shareholders Meeting (the “Oritani Recommendation”). The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly approved by

 

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the Board of Directors of Oritani. The execution and delivery of the Bank Merger Agreement has been duly and validly approved by the Board of Directors of the Bank and by Oritani in its capacity as sole shareholder of the Bank. Except for the approvals described in paragraph (b) below, no other corporate proceedings on the part of Oritani or the Bank are necessary to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by Oritani and, assuming due and valid execution and delivery of this Agreement by Valley, constitutes a valid and binding obligation of Oritani, enforceable against Oritani in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights and remedies generally and subject, as to enforceability, to general principles of equity, whether applied in a court of law or a court of equity.

(b)    Neither the execution and delivery of this Agreement by Oritani or the execution and delivery of the Bank Merger Agreement by the Bank, nor the consummation by Oritani of the transactions contemplated hereby in accordance with the terms hereof or the consummation by the Bank of the transactions contemplated thereby in accordance with the terms thereof, or compliance by Oritani with any of the terms or provisions hereof or compliance by the Bank with any of the terms of provisions thereof, will (i) violate any provision of the Oritani Charter Documents, (ii) assuming that the consents and approvals set forth below are duly obtained, violate any statute, code, ordinance, rule, regulation, judgment, order, writ, decree or injunction applicable to Oritani or the Bank or any of their respective properties or assets, or (iii) except as set forth in the Oritani Disclosure Schedule, violate, conflict with, result in a breach of any provisions of, constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, result in the termination of, accelerate the performance required by, or result in the creation of any Lien, security interest, charge or other encumbrance upon any of the respective properties or assets of Oritani or the Bank 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 Oritani or the Bank is a party, or by which either or both of them or any of their respective properties or assets may be bound or affected except, with respect to (ii) and (iii) above, such as individually and in the aggregate will not have a Material Adverse Effect on Oritani. Except for consents and approvals of or filings or registrations with or notices to the Office of the Comptroller of the Currency (the “OCC”), the Board of Governors of the Federal Reserve System (the “FRB”), the NJDOBI, the New Jersey Department of Treasury, the Secretary of State of the State of Delaware, the SEC, NASDAQ and the shareholders of Oritani, or as listed in the Oritani Disclosure Schedule, no consents or approvals of or filings or registrations with or notices to any federal or state governmental authority, instrumentality or administrative agency or, to the knowledge of Oritani, any third party are necessary on behalf of Oritani or the Bank in connection with (x) the execution and delivery by Oritani of this Agreement and (y) the consummation by Oritani of the transactions contemplated hereby and (z) the execution and delivery by the Bank of the Bank Merger Agreement and the consummation by the Bank of the transactions contemplated thereby. To the knowledge of Oritani, there is no reason why the consents and approvals referenced in the preceding sentence will not be obtained in a timely fashion.

3.4    Financial Statements.

(a)    Oritani’s (a) Annual Report on Form 10-K for the year ended June 30, 2018 filed with the SEC under the Exchange Act sets forth the consolidated balance sheets of Oritani as

 

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of June 30, 2018 and 2017, and the related consolidated statements of income, shareholders’ equity and cash flows for the periods ended June 30 in each of the three years 2016 through 2018, accompanied by the audit report of Oritani’s independent public accountants, and (b) Quarterly Report on Form 10-Q for the period ended March 31, 2019 filed with the SEC under the Exchange Act sets forth the unaudited consolidated balance sheets of Oritani as of March 31, 2019 and 2018 and the related unaudited consolidated statements of income, shareholders’ equity and cash flows for the nine months ended March 31, 2019 and 2018 ((a) and (b) collectively, the “Oritani Financial Statements”). The Oritani Financial Statements (including the related notes), have been prepared in accordance with GAAP consistently applied during the periods involved, and fairly present in all material respects the consolidated financial position of Oritani as of the respective dates set forth therein, and the related consolidated statements of income, changes in shareholders’ equity and of cash flows (including the related notes, where applicable) fairly present in all material respects the consolidated results of operations and changes in shareholders’ equity and of cash flows of Oritani for the respective fiscal periods set forth therein.

(b)    The books and records of Oritani and its Significant Subsidiaries have been and are being maintained in material compliance with applicable legal and accounting requirements, and reflect only actual transactions.

(c)    Except as set forth in the Oritani Disclosure Schedule and except to the extent reflected, disclosed or reserved against in the Oritani Financial Statements, as of June 30, 2018, neither Oritani nor any of its Significant Subsidiaries had any obligations or liabilities, whether absolute, accrued, contingent or otherwise material to the business, operations, assets or financial condition of Oritani or any of its Significant Subsidiaries and which are required by GAAP to be disclosed in the Oritani Financial Statements. Since March 31, 2019, neither Oritani nor any of its Significant Subsidiaries have incurred any material liabilities except in the ordinary course of business and consistent with past practice, except as specifically contemplated by or incurred in connection with this Agreement.

(d)    Crowe LLP, which has expressed its opinion with respect to the audited financial statements of Oritani and its Subsidiaries (including the related notes), is and has been throughout the periods covered by such applicable financial statements “independent” with respect to Oritani within the meaning of the rules of applicable bank regulatory authorities and the Public Company Accounting Oversight Board.

3.5    Financial Advisor Fees and Other Fees. Other than as disclosed on the Oritani Disclosure Schedule, neither Oritani nor any of its Subsidiaries nor any of their respective directors or officers has employed any broker, investment banker, financial advisor or finder or incurred any liability for any broker’s, financial advisors’, finder’s fees or similar fees or commissions in connection with any of the transactions contemplated by this Agreement. Copies of Oritani’s agreement with Keefe, Bruyette & Woods, Inc. (“KBW”) has previously been delivered to Valley. KBW has delivered to the Board of Directors of Oritani its opinion (which, if initially rendered verbally, has been or will be confirmed by a written opinion, dated the same date) with respect to the fairness, as of the date of such opinion and based upon and subject to the factors, limitations and assumptions set forth therein, from a financial point of view, of the Exchange Ratio to the shareholders of Oritani. Other than pursuant to the agreement with KBW, there are no fees (other than time charges billed at usual and customary rates) payable to any

 

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consultants, including lawyers and accountants, in connection with the transactions contemplated by this Agreement and which would be contingent upon the consummation of the Merger or the termination of services of such consultants by Oritani of any of its Subsidiaries.

3.6    Absence of Certain Changes or Events.

(a)    Since June 30, 2018, there has not been any condition, event, change or occurrence that, individually or in the aggregate, has had, or is reasonably likely to have, a Material Adverse Effect on Oritani.

(b)    Since June 30, 2018 Oritani and the Oritani Subsidiaries have conducted their business in the ordinary course, consistent with past practice.

3.7    Legal Proceedings. Except as disclosed in the Oritani Disclosure Schedule, neither Oritani nor any of its Subsidiaries is a party to any, and there are no pending or, to Oritani’s knowledge, threatened, legal, administrative, arbitral or other proceedings, claims, actions or governmental investigations of any nature against Oritani or any of its Subsidiaries which, if decided adversely to Oritani, or any of its Subsidiaries, would be reasonably likely to have a Material Adverse Effect on Oritani. Except as disclosed in the Oritani Disclosure Schedule, neither Oritani nor any of its Subsidiaries is a party to any order, judgment or decree entered against Oritani or any Oritani Subsidiary in any lawsuit or proceeding which would have a Material Adverse Effect on Oritani.

3.8    Taxes and Returns.

(a)    Except as set forth in the Oritani Disclosure Schedule or as would not have a Material Adverse Effect on Oritani or the Bank, Oritani, the Bank and each of their Subsidiaries have timely filed (and until the Effective Time will so file) all federal and state income and other material Returns required to be filed by them in respect of any Taxes (which such Returns which have already been filed were and continue to be, true, correct and complete in all material respects and which such Returns which will be filed will be true, correct and complete in all material respects when filed) and each has duly paid (and until the Effective Time will so pay) all such Taxes shown as due and payable on such Returns, other than Taxes or other charges which are being contested in good faith (and disclosed to Valley in writing). Except as set forth in the Oritani Disclosure Schedule, Oritani, the Bank and each of their Subsidiaries have established (and until the Effective Time will establish) on their books and records reserves for the payment of all Taxes not yet due and payable, but incurred in respect of Oritani, the Bank or any Subsidiary through such date, which reserves are adequate for such purposes. Except as set forth in the Oritani Disclosure Schedule, the federal income Returns of Oritani, the Bank and each of their Subsidiaries have been examined by the Internal Revenue Service (the “IRS”) (or are closed to examination due to the expiration of the applicable statute of limitations) and no deficiencies were asserted as a result of such examinations which have not been resolved and paid in full. Except as set forth in the Oritani Disclosure Schedule, the applicable state income and local Returns of Oritani, the Bank and each of their Subsidiaries have been examined by the applicable authorities (or are closed to examination due to the expiration of the statute of limitations) and no deficiencies were asserted as a result of such examinations which have not been resolved and paid in full. Except as set forth in the Oritani Disclosure Schedule, there are no audits or other administrative or court proceedings

 

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presently pending nor any other disputes pending, or claims asserted for, Taxes or assessments upon Oritani, the Bank or any of their Subsidiaries, nor has Oritani, the Bank or any of their Subsidiaries given any currently outstanding waivers or comparable consents regarding the application of the statute of limitations with respect to any Taxes or Returns.

(b)    Except as set forth in the Oritani Disclosure Schedule, neither Oritani, the Bank nor any of their Subsidiaries: (i) has requested any extension of time within which to file any Tax Return which Return has not since been filed; (ii) is a party to any agreement providing for the allocation or sharing of Taxes (except agreements between and/or among Oritani, the Bank and/or any of their Subsidiaries); (iii) is required to include in income any adjustment pursuant to Section 481(a) of the Code, by reason of a voluntary change in accounting method initiated by Oritani, the Bank or any Subsidiary (nor does Oritani or the Bank have any knowledge that the IRS has proposed any such adjustment or change of accounting method); (iv) has taken or agreed to take any action, has failed to take any action, or knows of any fact, agreement, plan or other circumstances that could prevent the Merger from qualifying as a “reorganization” within the meaning of Section 368(a)(1)(A) of the Code; (v) has been a party to any distribution occurring in the last five years in which the parties to such distribution treated the distribution as one to which Section 355 of the Code applied; (vi) has been included in any “consolidated,” “unitary” or “combined” Return (other than the Returns which include only Oritani, the Bank and each of their Subsidiaries) provided for under the laws of the United States, any foreign jurisdiction or any state or locality or has any liability for Taxes of any person (other than Oritani, the Bank and/or any of their Subsidiaries) arising from the application of Treasury Regulations Section 1.1502-6 or any analogous provision under the laws of any foreign jurisdiction or any state or locality, or as a transferee or successor, by contract, or otherwise; (vii) has participated in or otherwise engaged in any transaction described in Treasury Regulations Section 301.6111-2(b)(2) or any “Reportable Transaction” within the meaning of Treasury Regulations Section 1.6011-4(b); (viii) has been a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code; and/or (ix) has received any claim by a Governmental Entity in a jurisdiction where it does not file Returns that it is or may be subject to taxation by that jurisdiction.

(c)    Except as set forth in the Oritani Disclosure Schedule, (i) Oritani, the Bank and each of their Subsidiaries has complied with all applicable laws, rules and regulations relating to the payment and withholding of Taxes and has, within the time and in the manner provided by law, withheld and paid over to the proper Governmental Entities all amounts required to be so withheld and paid over under applicable laws; and (ii) Oritani, the Bank and each of their Subsidiaries has maintained such records in respect to each transaction, event and item (including as required to support otherwise allowable deductions and losses) as are required under applicable Tax law, except where the failure to comply or maintain records under (i) or (ii) will not result in a Material Adverse Effect on Oritani.

(d)    Oritani has made available to Valley true correct and complete copies of: (i) all material Returns filed within the past three years by Oritani, the Bank and each of their Subsidiaries; (ii) all audit reports, letter rulings, technical advice memoranda and similar documents issued by a Governmental Entity within the past three years relating to Taxes due from or with respect to Oritani, the Bank or any of its Subsidiaries; and (iii) any closing letters or agreements entered into by Oritani, the Bank or any of their Subsidiaries with any Governmental Entities within the past five years with respect to Taxes.

 

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(e)    Except as set forth in the Oritani Disclosure Schedule, neither Oritani, the Bank nor any of their Subsidiaries will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any (i) change in method of accounting for a taxable period ending on or prior to the Closing Date; (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. Tax law) executed on or prior to the Closing Date; (iii) intercompany transaction or any excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or foreign Tax law); (iv) installment sale or open transaction disposition made on or prior to the Closing Date; (v) prepaid amount received on or prior to the Closing Date; (vi) election under Section 108(i) of the Code; or (vii) income that accrued in a prior taxable period but that was not included in taxable income for that or another prior taxable period.

(f)    For purposes of this Agreement, the terms: (i) “Tax” or “Taxes” means: (A) any and all taxes, customs, duties, tariffs, imposts, charges, deficiencies, assessments, levies or other like governmental charges, including, without limitation, income, gross receipts, excise, real or personal property, ad valorem, value added, estimated, alternative minimum, stamp, sales, withholding, social security, occupation, use, service, service use, license, net worth, payroll, franchise, transfer and other recording taxes and charges, imposed by the IRS or any other taxing authority (whether domestic or foreign, including, without limitation, any state, county, local or foreign government or any subdivision or taxing agency thereof (including a United States possession)), whether computed on a separate, consolidated, unitary, combined or any other basis and such term shall include any interest, fines, penalties or additional amounts attributable to, or imposed upon, or with respect to, any such amounts, (B) any liability for the payment of any amounts described in (A) as a result of being a member of an affiliated, consolidated, combined, unitary, or similar group or as a result of transferor or successor liability, and (C) any liability for the payment of any amounts as a result of being a party to any tax sharing agreement or as a result of any obligation to indemnify any other person with respect to the payment of any amounts of the type described in (A) or (B); (ii) “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, which is required to be filed with a Governmental Entity; and (iii) “Governmental Entity means any (A) Federal, state, local, municipal or foreign government, (B) governmental, quasi-governmental authority (including any governmental agency, commission, branch, department or official, and any court or other tribunal) or body exercising, or entitled to exercise, any governmentally-derived administrative, executive, judicial, legislative, police, regulatory or taxing authority, or (C) any self-regulatory organization, administrative or regulatory agency, commission or authority.

3.9    Employee Benefit Plans.

(a)    Except as disclosed in the Oritani Disclosure Schedule, neither Oritani nor any of its Subsidiaries maintains or contributes to any “employee pension benefit plan”, within the meaning of Section 3(2)(A) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) (the “Oritani Pension Plans”), or “employee welfare benefit plan”, within the

 

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meaning of Section 3(1) of ERISA (the “Oritani Welfare Plans”), stock incentive plan, stock option plan, stock purchase plan, deferred compensation plan, severance plan, bonus plan, employment agreement or other similar plan, program or arrangement (collectively, the “Oritani Benefit Plans”). Neither Oritani nor any of its Subsidiaries has, since September 2, 1974, contributed to any “Multiemployer Plan”, within the meaning of Sections 3(37) and 4001(a)(3) of ERISA. Except as disclosed in the Oritani Disclosure Schedule, neither Oritani nor any of its Subsidiaries has, in the past six years, maintained or contributed to an employee pension benefit plan subject to Title IV of ERISA.

(b)    Oritani has previously delivered or made available to Valley a complete and accurate copy of each of the following with respect to each of the Oritani Pension Plans and Oritani Welfare Plans: (i) plan document, summary plan description, and summary of material modifications (if not available, a detailed description of the foregoing); (ii) trust agreement or insurance contract, if any; (iii) most recent IRS determination letter or opinion letter, if any; (iv) most recent actuarial report, if any; and (v) two most recent annual reports on Form 5500, if any.

(c)    All contributions required to be made to each Oritani Pension Plan under the terms thereof, ERISA or other applicable law have been timely made, and all amounts properly accrued to date as liabilities of Oritani and its Subsidiaries which have not been paid have been properly recorded on the books of Oritani and its Subsidiaries.

(d)    Except as disclosed on the Oritani Disclosure Schedule, each of the Oritani Pension Plans, the Oritani Welfare Plans and each other plan and arrangement identified on the Oritani Disclosure Schedule has been operated in compliance in all material respects with the provisions of ERISA, the Code, all regulations, rulings and announcements promulgated or issued thereunder, and all other applicable governmental laws and regulations. Furthermore, the IRS has issued a favorable determination or opinion letter, which takes into account the Economic Growth and Tax Relief Reconciliation Act and (to the extent it mandates currently applicable requirements) subsequent legislation, with respect to each of the Oritani Pension Plans, and Oritani has no knowledge of any fact or circumstance which could lead to the disqualification of any such plan).

(e)    To Oritani’s knowledge, except as disclosed on the Oritani Disclosure Schedule, no non-exempt prohibited transaction, within the meaning of Section 4975 of the Code or Section 406 of ERISA, has occurred with respect to any of the Oritani Welfare Plans or Oritani Pension Plans.

(f)    To Oritani’s knowledge, except as disclosed on the Oritani Disclosure Schedule, no “accumulated funding deficiency”, within the meaning of Section 412 of the Code, has been incurred with respect to any of the Oritani Pension Plans.

(g)    There are no pending, or, to Oritani’s knowledge, threatened or anticipated claims by, on behalf of or against any of the Oritani Pension Plans or the Oritani Welfare Plans, any trusts related thereto or any other plan or arrangement identified in the Oritani Disclosure Schedule other than claims for benefits in the ordinary course of business.

(h)    Except as disclosed in the Oritani Disclosure Schedule, no Oritani Pension Plan or Oritani Welfare Plan provides medical or death benefits (whether or not insured) beyond an employee’s retirement or other termination of service, other than (i) coverage mandated by law, or (ii) death benefits under any Oritani Pension Plan.

 

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(i)    Except as disclosed in the Oritani Disclosure Schedule, there are no funding obligations of any Oritani Benefit Plan which are not accounted for by reserves shown on the Oritani Financial Statements and established under GAAP, or otherwise noted on the Oritani Financial Statements.

(j)    Except as disclosed in the Oritani Disclosure Schedule, with respect to each Oritani Pension Plan and Oritani Welfare Plan that is funded wholly or partially through an insurance policy, there will be no liability of Oritani or any Oritani Subsidiary under any such insurance policy or ancillary agreement with respect to such insurance policy for any retroactive rate adjustment, loss sharing arrangement or other actual or contingent contractual liability arising wholly or partially out of events occurring prior to or at the Effective Time.

(k)    Except as may hereafter be expressly agreed to by Valley in writing or as disclosed on the Oritani Disclosure Schedule, the consummation of the transactions contemplated by this Agreement in accordance with its terms will not (i) entitle any current or former employee of Oritani or any Oritani Subsidiary to severance pay, unemployment compensation or any similar payment, or (ii) accelerate the time of payment, accelerate the vesting, or increase the amount, of any compensation or benefits due to any current employee or former employee under any Oritani Pension Plan, Oritani Welfare Plan, or Oritani Benefit Plan.

(l)    Except for the Oritani Pension Plans and the Oritani Welfare Plans, and except as set forth on the Oritani Disclosure Schedule, Oritani has no deferred compensation agreements, understandings or obligations for payments or benefits to any current or former director, officer or employee of Oritani or any Oritani Subsidiary or any predecessor of any of them. The Oritani Disclosure Schedule sets forth (or lists, if previously delivered to Valley with respect to such items and any supplemental retirement plan or arrangement): (i) true and complete copies of the deferred compensation agreements, understandings or obligations with respect to each such current or former director, officer or employee, (ii) the most recent actuarial or other calculation of the present value of such payments or benefits, and (iii) whether the financial statements provide a reserve for such items on the Oritani Financial Statements.

(m)    Except as set forth in the Oritani Disclosure Schedule, Oritani does not maintain or otherwise pay for life insurance policies (other than group term life policies on employees) with respect to any director, officer or employee. The Oritani Disclosure Schedule lists each such insurance policy and any agreement with a party other than the insurer with respect to the payment, funding or assignment of such policy. Such life insurance policies comply, in all material respects, with state and federal law, including, without limitation, ERISA, and the rules and regulations of all applicable Governmental Entities. To Oritani’s knowledge, neither Oritani nor any Oritani Pension Plan or Oritani Welfare Plan owns any individual or group insurance policies issued by an insurer which has been found to be insolvent or is in rehabilitation pursuant to a state proceeding.

(n)    Except as set forth in the Oritani Disclosure Schedule, Oritani does not maintain any retirement plan for directors. The Oritani Disclosure Schedule sets forth the complete documentation and actuarial evaluation (if any) of any such plan and the reserve on the Oritani Financial Statements for such plan.

 

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(o)    Except as set forth in the Oritani Disclosure Schedule, Neither Oritani nor any Oritani Subsidiary (i) has entered into a nonqualified deferred compensation arrangement with the meaning of Section 409A of the Code, or has failed to take any other action, that has resulted or could result in the interest and Tax penalties specified in Section 409A of the Code being owed by any employee, former employee, director, former director or beneficiary or (ii) has agreed to reimburse or indemnify any employee, former employee, director, former director or beneficiary for any of the interest and Tax penalties specified in Section 409A of the Code that may be currently due or payable in the future.

(p)    Except as disclosed in the Oritani Disclosure Schedule, or as would not have a Material Adverse Effect on Oritani, since January 1, 2018, neither Oritani nor any of its Subsidiaries have made any payments to employees which are not deductible under Section 162(m) of the Code.

(q)    Other than as identified on the Oritani Disclosure Schedule, Oritani maintains no split dollar life insurance for the benefit of any executive. The Oritani Disclosure Schedule contains a copy of each split dollar life insurance policy and the relevant consents for each person previously a beneficiary or owner of all or a portion of such policies.

3.10    Reports. Except as set forth in the Oritani Disclosure Schedule, the Bank has, since January 1, 2017, duly filed with the NJDOBI and the FDIC, and Oritani has duly filed with the FRB, in correct form all documentation required to be filed under applicable laws and regulations, and if requested by Valley, Oritani promptly will deliver or make available to Valley accurate and complete copies of such documentation. The Oritani Disclosure Schedule lists all examinations of the Bank conducted by the NJDOBI and the FDIC, and all examinations of Oritani conducted by the FRB, since January 1, 2017 and the dates of any responses thereto submitted by the Bank and Oritani, respectively. Notwithstanding the foregoing, nothing in this Section 3.10 or this Agreement shall require Oritani to provide Valley with any confidential regulatory supervisory information of Oritani or the Bank.

3.11    Compliance with Applicable Law.

(a)    Except as set forth in the Oritani Disclosure Schedule, each of Oritani and the Oritani Subsidiaries (i) holds all licenses, franchises, permits and authorizations necessary for the lawful conduct of its business, except where the failure to hold such license, franchise, permit or authorization would not, individually or in the aggregate, result in a Material Adverse Effect on Oritani, and (ii) has complied with and is not in default in any respect under any, applicable law, statute, order, rule, regulation, policy and/or guideline of any Governmental Entity relating to Oritani or any of its Subsidiaries, including, without limitation, consumer, community and fair lending laws, other than where any non-compliance or default would not reasonably be expected to, individually or in the aggregate, result in a Material Adverse Effect on Oritani and neither Oritani nor any of the Oritani Subsidiaries, since January 1, 2017, has received written notice of such violation of any of the above that has not been cured.

 

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(b)    Without limiting the foregoing, the Bank has complied in all material respects with the Community Reinvestment Act (“CRA”). Except as set forth on the Oritani Disclosure Schedule, since January 1, 2017, to Oritani’s knowledge, no third-party person or group has adversely commented upon the Bank’s CRA performance.

(c)    To the knowledge of Oritani, there is no reason why the granting of any of the necessary permits, consents, approvals and authorizations by the governmental bodies necessary to consummate the transactions contemplated by this Agreement would be denied or unduly delayed.

3.12    Certain Contracts.

(a)    Except as set forth in the Oritani Disclosure Schedule, neither Oritani nor any of its Subsidiaries is a party to or is bound by any contract, arrangement, commitment or understanding (whether written or oral) (i) which is a material contract (as defined in Item 601(b)(10) of Regulation S-K of the SEC) to be performed in whole or in part after the date of this Agreement, (ii) which relates to the incurrence of indebtedness (other than deposit liabilities, federal funds, advances and loans from the Federal Home Loan Bank and sales of securities subject to repurchase, in each case incurred in the ordinary course of business) by Oritani or any of its Subsidiaries in the principal amount of $750,000 or more, including any sale and leaseback transactions in the ordinary course of its business consistent with past practice, capitalized leases and other similar financing transactions, (iii) which grants any right of first refusal, right of first offer or similar right with respect to any material assets or properties of Oritani and its Subsidiaries, (iv) which provides for payments of $250,000 or more to be made by Oritani or any of its Subsidiaries upon a change in control thereof, (v) which involves products or services purchased or to be purchased by Oritani or any of its Subsidiaries with an annual value in excess of $500,000, and: (A) limits the freedom of Oritani or any of its Subsidiaries to compete in any line of business, in any geographic area or with any person, (B) requires referrals of business or requires Oritani or any of its Subsidiaries to make available investment opportunities to any person on a priority or exclusive basis or (C) requires Oritani or any of its Subsidiaries to use any product or service of another person on an exclusive basis, or (vi) which involved payments by, or to, Oritani or any of its Subsidiaries in fiscal year 2018 of more than $750,000 and not terminable on ninety (90) days or less notice or which could reasonably be expected to involve payments by, or to, Oritani, during fiscal year 2019 of more than $750,000 and not terminable on ninety (90) days or less notice (other than pursuant to Loans originated or purchased by Oritani and its Subsidiaries in the ordinary course of business consistent with past practice). Each contract, arrangement, commitment or understanding of the type described in this Section 3.12(a) or set forth in the Oritani Disclosure Schedule, is referred to herein as a “Oritani Contract.”

(b)    Except as set forth in the Oritani Disclosure Schedule, (i) each Oritani Contract is valid and binding on Oritani or its applicable Subsidiary and in full force and effect, and, to the knowledge of Oritani, is valid and binding on the other parties thereto, (ii) Oritani and each of its Subsidiaries and, to the knowledge of Oritani, each of the other parties thereto, has in all material respects performed all obligations required to be performed by such party to date under

 

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each Oritani Contract, and (iii) no event or condition exists which constitutes or, after notice or lapse of time or both, would constitute a material breach or default on the part of Oritani or any of its Subsidiaries or, to the knowledge of Oritani, any other party thereto, under any such Oritani Contract, except, in each case, where such invalidity, failure to be binding, failure to so perform or breach or default, individually or in the aggregate, would not have or reasonably be expected to have a Material Adverse Effect on Oritani.

(c)    The Oritani Disclosure Schedule contains a schedule showing the present value of the monetary amounts payable as of the date specified in such schedule and the most recently available valuation report, whether individually or in the aggregate (including good faith estimates of all amounts not subject to precise quantification as of the date of this Agreement, such as Tax indemnification payments in respect of income or excise Taxes), under any employment, change-in-control, severance or similar contract or plan with or which covers any present or former employee, director or consultant of Oritani or any of its Subsidiaries and identifying the types and estimated amounts of the in-kind benefits due under any Oritani Pension Plans, Oritani Welfare Plans or Oritani Contract (other than a Tax-qualified plan) for each such person, specifying the assumptions in such schedule. The failure of Oritani to include immaterial amounts (both individually or in the aggregate) under Section 3.12(c) shall not constitute a breach thereof.

3.13    Properties and Insurance.

(a)    The Oritani Disclosure Schedule contains a complete list of all real property owned (“Oritani Owned Real Property”) or leased by Oritani or any of its Subsidiaries, as other real estate owned (“OREO”) or otherwise, or owned, leased or controlled by Oritani or any Oritani Subsidiary as trustee or fiduciary (collectively, the “Oritani Properties”). To Oritani’s knowledge, and except as set forth in the Oritani Disclosure Schedule, Oritani and its Subsidiaries have good, and as to Oritani Owned Real Property, marketable and fee simple, title to all material assets and properties, whether real or personal, tangible or intangible, reflected in Oritani’s consolidated balance sheet as of June 30, 2018, or owned and acquired subsequent thereto (except to the extent that such assets and properties have been disposed of for fair value in the ordinary course of business since June 30, 2018 to third parties in arm’s length transactions).

(b)    Oritani and its Subsidiaries as lessees have the right under valid and subsisting leases to occupy, use, possess and control all property leased by them in all material respects as presently occupied, used, possessed and controlled by them. The Oritani Disclosure Schedule lists all leases pursuant to which Oritani or any Oritani Subsidiary occupies any real property (“Oritani Leases”) and for each such lease lists annual base rentals, the annual increases to base rentals to the end of the lease and the expiration date and any option terms. Except as otherwise set forth on the Oritani Disclosure Schedule, the Merger does not or will not trigger any provision of any of the Oritani Leases covering Oritani’s leased real property which would require the consent to assignment or approval by any of the lessors thereunder. Neither Oritani nor its Subsidiaries have assigned, subleased, transferred, conveyed, mortgaged or deeded in trust any interest in any of the Oritani Leases. Neither Oritani nor any of its Subsidiaries have received written notice of any threatened cancellations of any of the Oritani Leases. Oritani or its Subsidiaries, as the case may be, has in all material respects performed all obligations required to be performed by it to date pursuant to such Oritani Leases. Neither Oritani nor any of its Subsidiaries has received any written notice of any default or event that with notice or lapse of time, or both, would constitute a default by Oritani or any Subsidiary under any of the Oritani Leases.

 

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(c)    To Oritani’s knowledge, the Oritani Properties and all buildings and improvements thereon are free from any material interior or exterior structural defects. Neither Oritani nor its Subsidiaries have received written notice that any such buildings, structures, fixtures and improvements on any Oritani Owned Real Property are in violation, in any material respect, of any applicable laws. To Oritani’s knowledge, the buildings, structures, fixtures and improvements on each parcel of Oritani Owned Real Property lie entirely within the boundaries of such parcel of Oritani Owned Real Property. Neither Oritani nor its Subsidiaries have received written notice that any portion of Oritani Properties or any building, structure, fixture or improvement thereon is the subject of, or affected by, any condemnation, eminent domain or inverse condemnation proceeding currently instituted or pending, and to the knowledge of Oritani, none of the foregoing are, or have been threatened to be, the subject of, or affected by, any such proceeding. There are no persons other than Oritani and its Subsidiaries, or, to Oritani’s knowledge as to leased real property, the landlord (to the extent provided for in the relevant Oritani Lease), entitled to possession of the Oritani Owned Real Property. To Oritani’s knowledge, all of the Oritani Properties, and Oritani’s and its Subsidiaries’ use thereof, complies in all material respects with all applicable zoning, building, fire, use restriction, air, water or other pollution control, environmental protection, waste disposal, safety or health codes, or other ordinances, rules or regulations but excluding any Environmental Laws which are subject to Section 3.15 hereof. Except as set forth in the Oritani Disclosure Schedule, neither Oritani nor its Subsidiaries have received any notification of any asserted present or past failure by it to comply with such laws, rules, regulations or codes, or such orders, rules, writs, judgments, injunctions, decrees or ordinances except for past violations as to which the relevant statute of limitations has expired or as to which Oritani or its Subsidiaries have completed all actions required to be in compliance therewith.

(d)    The Oritani Disclosure Schedule lists all material policies of insurance of Oritani and its Significant Subsidiaries, in each case under valid, binding and enforceable policies or bonds, with such amounts and such deductibles as are specified. As of the date hereof, neither Oritani nor any of its Subsidiaries has received any notice of pending cancellation or notice of a pending material amendment of any such insurance policy or bond or is in default under such policy or bond, no material coverage thereunder is being disputed and all material claims thereunder have been filed in a timely fashion.

3.14    Minute Books. Since January 1, 2017, the minute books of Oritani and its Significant Subsidiaries contain records that are accurate in all material respects of all meetings of and other corporate action taken by their respective shareholders and Boards of Directors (including committees of their respective Boards of Directors).

3.15    Environmental Matters.

(a)    For purposes of this Section 3.15, the term, Environmental Law” means any foreign, federal, state or local statute, regulation, ordinance, rule of common law or other legal requirement in effect on or prior to the date hereof relating to the protection of human health and safety, the environment or natural resources, including, without limitation, the Comprehensive

 

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Environmental Response, Compensation and Liability Act (42 U.S.C. §§ 9601 et seq.), the Hazardous Materials Transportation Act (49 U.S.C. §§ 5101 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.), the Clean Water Act (33 U.S.C. §§ 1251 et seq.), the Clean Air Act (42 U.S.C. §§ 7401 et seq.) the Toxic Substances Control Act (15 U.S.C. §§ 2601 et seq.), the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. §§ 136 et seq.), and the Occupational Safety and Health Act (29 U.S.C. §§ 651 et seq.), as each has been or may be amended and the regulations promulgated pursuant thereto.

(b)    Except as set forth in the Oritani Disclosure Schedule, to Oritani’s knowledge, (i) the operations of Oritani and each of its Subsidiaries are in compliance with and have complied with all applicable Environmental Laws, (ii) neither Oritani nor any of its Subsidiaries has any liability known or unknown, contingent or absolute, under any Environmental Law, nor is Oritani or any Subsidiary responsible for any such liability of any other person or entity under any Environmental Law, whether by contract, by operation of law or otherwise, (iii) neither Oritani nor any Oritani Subsidiary has received any written notice, citation, claim, assessment, proposed assessment or demand for abatement in the last five years alleging that Oritani or such Oritani Subsidiary (either directly or as a trustee or fiduciary, or as a successor-in-interest in connection with the enforcement of remedies to realize the value of properties serving as collateral for outstanding loans) may be in violation of any Environmental Law or may have any liability under any Environmental Law, and (iv) no toxic or hazardous substances or materials have been emitted, generated, disposed of or stored on any Oritani Property in any manner that violates any Environmental Law given the current use of the Oritani Properties.

(c)    Except as set forth in the Oritani Disclosure Schedule, to Oritani’s knowledge, none of the Oritani Properties has been operated in any manner that violated any Environmental Law, the violation of which would have a Material Adverse Effect on Oritani.

(d) To Oritani’s knowledge, no Oritani Property is listed or proposed to be listed on the National Priorities List or the Comprehensive Environmental Response, Compensation, and Liability Information System or any other governmental database or list of properties that may or do require remedial action under Environmental Laws. Neither Oritani nor any of its Subsidiaries has arranged by contract, agreement or otherwise for the transportation, disposal or treatment of hazardous or toxic substances at any location such that it is or could be liable for remedial actions of such location pursuant to Environmental Laws.

(e)    Oritani and its Subsidiaries have furnished to Valley copies of all environmental assessments, reports, audits and other documents in their possession or under its control from the last five years that relate to the environmental condition of any Oritani Property.

3.16    Reserves.

(a)    The allowance for loan and lease losses in the Oritani Financial Statement, was, as of March 31, 2019, (i) adequate under GAAP, and (ii) adequate based upon Oritani’s estimate of probable credit losses inherent in the loan portfolio.

 

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(b)    As of March 31, 2019, the reserve for Taxes as calculated under and required under FIN 48 in the Oritani Financial Statements was adequate for all contingencies and includes all reasonably possible contingencies as of such date.

(c)    As of March 31, 2019, the impairment on loans, investments, derivatives and any other financial instrument in the Oritani Financial Statements was correctly accounted for under GAAP.

3.17    No Excess Parachute Payments or Non-Deductible Payments under Section 162(m). Except as set forth in the Oritani Disclosure Schedule, no officer, director, employee or agent (or former officer, director, employee or agent) of Oritani or any Oritani Subsidiary is entitled now, or will or may be entitled to as a consequence of this Agreement, the Merger or the Bank Merger, to any payment or benefit from Oritani, a Oritani Subsidiary, Valley or VNB which if paid or provided would constitute an “excess parachute payment”, as defined in Section 280G of the Code or regulations promulgated thereunder or would not be deductible under Section 162(m) of the Code. Any disclosures on the Oritani Disclosure Schedule pursuant to this section shall include the name of the person entitled to receive the payment of benefit, a calculation of the amounts due and a statement as to whether such amounts are deductible for federal income Tax purposes, along with any other relevant information. No officer or employee of Oritani or the Bank is entitled to a Section 280G “gross up” payment with regard to any payments or benefits set forth on the Oritani Disclosure Schedule or otherwise.

3.18    Agreements with Bank Regulators. Except as set forth in the Oritani Disclosure Schedule, neither Oritani nor any Oritani Subsidiary is a party to any agreement or memorandum of understanding with, or a party to any commitment letter, board resolution submitted to a regulatory authority or similar undertaking to, or is subject to any order or directive by, or is a recipient of any extraordinary supervisory letter from, any Governmental Entity which restricts materially the conduct of its business, or in any manner relates to its capital adequacy, its credit or reserve policies or its management, except for those the existence of which has been disclosed in writing to Valley by Oritani prior to the date of this Agreement, nor has Oritani been advised by any Governmental Entity that it is contemplating issuing or requesting (or is considering the appropriateness of issuing or requesting) any such order, decree, agreement, memorandum of understanding, extraordinary supervisory letter, commitment letter or similar submission. Neither Oritani nor any Oritani Subsidiary is required by Section 32 of the Federal Deposit Insurance Act to give prior notice to a federal banking agency of the proposed addition of an individual to its Board of Directors or the employment of an individual as a senior executive officer, except as disclosed in writing to Valley by Oritani prior to the date of this Agreement. The Oritani Disclosure Schedule sets forth the status of any action listed under Section 3.18 of the Oritani Disclosure Schedule. Notwithstanding the foregoing, nothing in this Section 3.18 or this Agreement shall require Oritani to provide Valley with any confidential regulatory supervisory information of Oritani or the Bank.

3.19    Insider Loans. The Oritani Disclosure Schedule sets forth, as of March 31, 2019, each loan, extension of credit, or guaranty from Oritani or any of its Subsidiaries to any director, executive officer and principal shareholders (as such terms are defined in Regulation O promulgated by the Federal Reserve Board (12 CFR Part 215)) of Oritani including (i) the name of the person receiving the benefit of such loan, extension of credit or guaranty, (ii) the outstanding

 

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principal amount of such loan or extension of credit, and (iii) the type of loan. Except as listed in the Oritani Disclosure Schedule, (i) there are no employee, officer, director or other affiliate loans on which the borrower is paying a rate other than that reflected in the note or the relevant credit agreement or on which the borrower is paying a rate which was below market at the time the loan was made and (ii) all such loans are and were made in compliance with all applicable laws and regulations. The schedule referred to in this Section 3.19 is accurate and complete in all material respects.

3.20    Reports; Internal and Disclosure Controls.

(a)    Oritani and each of its Significant Subsidiaries has filed all material reports, registrations and statements, together with any amendments required to be made with respect thereto, that they were required to file since January 1, 2017 with any Governmental Entity and have paid all fees and assessments due and payable in connection therewith. Except for normal examinations conducted by a Governmental Entity in the regular course of the business of Oritani and its Significant Subsidiaries or as set forth in the Oritani Disclosure Schedule, no Governmental Entity has initiated any proceeding or, to the knowledge of Oritani, threatened an investigation into the business or operations of Oritani or any of its Significant Subsidiaries since January 1, 2017. Except as set forth in the Oritani Disclosure Schedule, there is no material unresolved violation, criticism or exception by any Governmental Entity with respect to any report, registration or statement filed by, or relating to any examinations by any such Governmental Entity of, Oritani or any of its Subsidiaries.

(b)    Except as set forth in the Oritani Disclosure Schedule, the records, systems, controls, data and information of Oritani 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 Oritani or its Subsidiaries or accountants (including all means of access thereto and therefrom), except for any non-exclusive ownership and non-direct control that would not reasonably be expected to have a materially adverse effect on the system of internal accounting controls described in the following sentence. Oritani and its Subsidiaries have devised and maintain a system of internal accounting controls sufficient to provide reasonable assurances regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. Oritani (A) has designed disclosure controls and procedures to ensure that material information relating to Oritani and its Subsidiaries is made known to the management of Oritani, and (B) has disclosed, based on its most recent evaluation prior to the date hereof, to Oritani’s auditors and the audit committee of Oritani’s Board of Directors (1) any significant deficiencies in the design or operation of internal controls which could adversely affect in any material respect Oritani’s ability to record, process, summarize and report financial data and has identified for Oritani’s auditors any material weaknesses in internal controls and (2) any fraud, whether or not material, that involves management or other employees who have a significant role in Oritani’s internal controls.

(c)    Except as set forth in the Oritani Disclosure Schedule, since January 1, 2017, neither Oritani nor any of its Subsidiaries nor, to the knowledge of Oritani, any member of Oritani’s Board of Directors or executive officer of Oritani or any of its Subsidiaries, has received or otherwise had or obtained knowledge of any material written complaint, allegation, assertion or claim, regarding the accounting or auditing practices, procedures, methodologies or methods of

 

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Oritani or any of its Subsidiaries or their respective internal accounting controls including any material complaint, allegation, assertion or claim that Oritani or any of its Subsidiaries has engaged in questionable accounting or auditing practices, and no attorney representing Oritani or any of its Subsidiaries, whether or not employed by Oritani or any of its Subsidiaries, has reported evidence of a material violation of securities laws, breach of fiduciary duty or similar violation by Oritani or any of its officers, directors, employees or agents to any member of Oritani’s Board of Directors or any executive officer of Oritani.

3.21    Loan Matters.

(a)    Except as set forth in the Oritani Disclosure Schedule, each outstanding loan (including loans held for resale to investors) held by Oritani or its Subsidiaries (the “Oritani Loans”) has been solicited and originated and is administered and, where applicable, serviced, and the relevant Oritani Loan files are being maintained, in all material respects in accordance with the relevant loan documents, Oritani’s underwriting standards (and, in the case of Oritani Loans held for resale to investors, the underwriting standards, if any, of the applicable investors) and with all applicable requirements of federal, state and local laws, regulations and rules, except for such exceptions as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Oritani.

(b)    Except as set forth in the Oritani Disclosure Schedule or as would not have a Material Adverse Effect on Oritani, each Oritani Loan (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 secured has been secured by valid Liens which have been perfected and (iii) to Oritani’s knowledge, is a legal, valid and binding obligation of the obligor named therein, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent conveyance and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles. Except as would not have a Material Adverse Effect on Oritani, the loan documents with respect to each Oritani Loan were in compliance with applicable laws and regulations at the time of origination or purchase by Oritani or its Subsidiaries and are complete and correct in all material respects.

(c)    Oritani has previously delivered to Valley a schedule setting forth (A) each Oritani Loan that as of March 31, 2019 was classified as “Special Mention,” “Substandard,” “Doubtful,” “Loss,” “Classified,” “Criticized,” “Credit Risk Assets,” “Concerned Loans,” “Watch List” or words of similar import by Oritani, any of its Subsidiaries or any bank examiner, together with the principal amount of and accrued and unpaid interest on each such Oritani Loan, (B) each Oritani Loan that was classified as of March 31, 2019 under ASC 310, and (C) each asset of Oritani or any of its Subsidiaries that as of March 31, 2019 was classified as OREO and the book value thereof as of such date. Such schedule is accurate and complete in all material respects.

(d)    Except as set forth in the Oritani Disclosure Schedule, none of the agreements pursuant to which Oritani or any of its Subsidiaries has sold loans or pools of loans or participations in loans or pools of loans contains any obligation to repurchase such loans or interests therein solely on account of a payment default by the obligor on any such loan.

 

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(e)    The Oritani Disclosure Schedule sets forth each loan participation entered into by Oritani or any of its Subsidiaries as of May 31, 2019.

3.22    Intellectual Property.

(a)    Except as, individually or in the aggregate, has not had a Material Adverse Effect, (i) all marks, patents and registered copyrights, including any pending applications to register any of the foregoing, owned (in whole or in part) by Oritani or any of its Subsidiaries (collectively, “Oritani Registered IP”) (other than patent applications or applications to register trademarks) is, to the knowledge of Oritani, valid and enforceable and (ii) except as set forth in the Oritani Disclosure Schedule no Oritani Registered IP is involved in any interference, reissue, reexamination, opposition, cancellation or similar proceeding and, to the knowledge of Oritani, no such action is or has been threatened with respect to any of Oritani Registered IP.

(b)    Except as, individually or in the aggregate, has not had a Material Adverse Effect, Oritani or its Subsidiaries own exclusively (such exclusive right excluding any licenses granted by Oritani or its Subsidiaries), free and clear of any and all Liens, all Oritani Registered IP and all other intellectual property that is material to the businesses of Oritani or any of its Subsidiaries other than intellectual property owned by a third party that is licensed to Oritani or a Subsidiary thereof pursuant to an existing license agreement and used by Oritani or such Subsidiary within the scope of such license.

(c)    Each of Oritani and its Subsidiaries has taken all reasonable steps to protect and maintain its rights in its intellectual property and maintain the confidentiality of all information of Oritani or its Subsidiaries that derives economic value (actual or potential) from not being generally known to other persons who can obtain economic value from its disclosure or use, including safeguarding any such information that is accessible through computer systems or networks.

(d)    To the knowledge of Oritani, none of the activities or operations of Oritani or any of its Subsidiaries (including the use of any intellectual property in connection therewith) have infringed upon, misappropriated or diluted in any material respect any intellectual property of any third party and neither Oritani nor any of its Subsidiaries has received any notice or claim asserting or suggesting that any such infringement, misappropriation, or dilution is or may be occurring or has or may have occurred.

(e)    To the knowledge of Oritani, its information technology assets operate and perform in all material respects in accordance with their documentation and functional specifications and otherwise as required by Oritani in connection with its business, and no information technology assets that are material to the business of Oritani or any of its Subsidiaries or to any of their operations, have materially malfunctioned or materially failed within the last three years.

3.23    Antitakeover Provisions. Oritani has taken all action required to be taken by it in order to exempt this Agreement and the transactions contemplated hereby from the requirements of Section 203 of the DGCL.

 

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3.24    Indemnification. Except as provided in the Oritani Contracts or the Oritani Charter Documents, neither Oritani nor any of its Subsidiaries is a party to any indemnification agreement with any of its present or former directors, officers, employees, agents or with any other persons who serve or served in any other capacity with any other enterprise at the request of Oritani (a “Covered Person”), and, to the knowledge of Oritani, there are no claims for which any Covered Person would be entitled to indemnification under the Oritani Charter Documents, applicable law or any indemnification agreement.

3.25    Reorganization. Neither Oritani nor any of its Subsidiaries has taken or agreed to take any action, has failed to take any action, or knows of any fact, agreement, plan or other circumstances that could reasonably be expected to prevent the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code.

3.26    Investment Securities; Borrowings; Deposits.

(a)    Except for investments in Federal Home Loan Bank stock, Federal Reserve Bank stock and pledges to secure Federal Home Loan Bank or Federal Reserve Bank borrowings and reverse repurchase agreements entered into in arms-length transactions pursuant to normal commercial terms and conditions and entered into in the ordinary course of business and restrictions that exist for securities to be classified as “held to maturity,” none of the investment securities held by Oritani or any of its Subsidiaries as of the date of this Agreement is subject to any restriction (contractual or statutory) that would materially impair the ability of the entity holding such investment to freely dispose of such investment at any time.

(b)    Neither Oritani nor any of its Subsidiaries is a party to or has agreed to enter into an exchange-traded or over-the-counter equity, interest rate, foreign exchange or other swap, forward, future, option, cap, floor or collar or any other contract that is not included on the face of the Oritani Financial Statements and is a derivative contract (including various combinations thereof) (each, a “Derivatives Contract”) or owns securities that (A) are referred to generically as “structured notes,” “high risk mortgage derivatives,” “capped floating rate notes” or “capped floating rate mortgage derivatives” or (B) are likely to have changes in value as a result of interest or exchange rate changes that significantly exceed normal changes in value attributable to interest or exchange rate changes, except for those Derivatives Contracts and other instruments listed in the Oritani Disclosure Schedule.

(c)    Set forth in the Oritani Disclosure Schedule is a true and complete list of the borrowed funds (excluding deposit accounts) of Oritani and its Subsidiaries as of March 31, 2019.

(d)    Except as set forth in the Oritani Disclosure Schedule, none of the deposits of Oritani or any of its Subsidiaries is a “brokered” or “listing service” deposit.

3.27    Vote Required. Assuming that a quorum is present at the Oritani Shareholders Meeting, approval by holders of a majority of the outstanding shares of Oritani Common Stock entitled to vote shall be sufficient to constitute approval by Oritani’s shareholders of each of the matters set forth in Section 5.7(a) hereof. A majority of the outstanding shares of Oritani Common Stock constitutes a quorum for purposes of the Oritani Shareholders Meeting.

 

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3.28    Questionable Payments. To Oritani’s knowledge, neither Oritani, the Bank nor any of their Subsidiaries or affiliates has: (a) directly or indirectly, used any corporate funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to foreign or domestic political activity; (b) made any direct or indirect unlawful payments to any foreign or domestic governmental officials, employees or agents of any foreign or domestic government or to any foreign or domestic political parties or campaigns from corporate funds; (c) violated any provision of the Foreign Corrupt Practices Act of 1977, as amended; or (d) made any other unlawful bribe, rebate, payoff, influence payment, kickback, or other material unlawful payment to any foreign or domestic governmental official, employee, or agent of any foreign or domestic government.

3.29    Anti-Money Laundering Laws. Since January 1, 2016, Oritani has no knowledge of, nor has it been advised of, or has reason to believe that any facts or circumstances exist that would cause Oritani, the Bank or any of their Subsidiaries: (i) to be deemed to have knowingly acted, by itself or in conjunction with another, in any act in connection with the concealment of any currency, securities, other proprietary interest that is the result of a felony (“Unlawful Gains”) as defined in the Bank Secrecy Act of 1970 (the “Bank Secrecy Act”) and its implementing regulations (“U.S. Anti-Money Laundering Laws”); (ii) to be deemed to have knowingly accepted, transported, stored, dealt in or brokered any sale, purchase or any transaction of other nature for Unlawful Gains; or (iii) to be deemed to be operating in violation in any material respect of the U.S. Anti-Money Laundering Laws. Except as set forth in the Oritani Disclosure Schedule, the Board of Directors of Oritani and the Bank has adopted, and has implemented, an anti-money laundering program that contains adequate and appropriate customer identification verification procedures that comply in all material respects with the U.S. Anti-Money Laundering Laws and has kept and filed all material reports and other necessary material documents as required by such laws.

3.30    OFAC. Neither Oritani nor the Bank is, nor would either reasonably be expected to become, a person or entity with whom a United States person or entity is restricted from doing business under regulation of the Office of Foreign Assets Control (“OFAC”) (including those named on OFAC’s Specially Designated and Blocked Persons List) or under any statute, executive order (including, without limitation, the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action. Oritani and the Bank have implemented an OFAC compliance program that adequately covers in all material respects all elements of OFAC compliance, and to the knowledge of Oritani and to the knowledge of the Bank, no Subsidiary or affiliate of Oritani or the Bank is engaging nor has any Subsidiary or affiliate of Oritani or the Bank engaged in any dealings or transactions with, and no Subsidiary or affiliate of Oritani or the Bank has been otherwise associated with, such persons or entities.

3.31    Disclosure. No representation or warranty contained in Article III of this Agreement, including the Oritani Disclosure Schedule, contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements herein not misleading.

 

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ARTICLE IV. - REPRESENTATIONS AND WARRANTIES OF VALLEY

References herein to the “Valley Disclosure Schedule” shall mean all of the disclosure schedules dated as of the date hereof and referenced to the specific sections and subsections of this Agreement, which have been delivered on the date hereof by Valley to Oritani. Valley hereby represents and warrants to Oritani as follows:

4.1    Corporate Organization.

(a)    Valley is a corporation duly organized and validly existing and in good standing under the laws of the State of New Jersey. Valley 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, and is duly licensed or qualified to do business and in good standing 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 or in good standing would not have, or would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on Valley. Valley is registered as a bank holding company under the Bank Holding Company Act of 1956, as amended.

(b)    All of the Subsidiaries of Valley are listed in the Valley Disclosure Schedule with a designation of which Subsidiaries are Significant Subsidiaries. Each Significant Subsidiary of Valley is duly organized, validly existing and in good standing under the laws of its state of incorporation or organization. VNB is a national bank whose deposits are insured by the FDIC to the fullest extent permitted by law. Each Significant Subsidiary of Valley has the 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 of each of the foregoing would not have a Material Adverse Effect on Valley.

4.2    Capitalization.

(a)    The authorized capital stock of Valley consists solely of 450,000,000 shares of Valley Common Stock and 50,000,000 shares of preferred stock, no par value per share, of which 4,600,000 shares have been designated as Series A (the “Series A Preferred Stock”), 4,000,000 of which have been designated as Series B (the “Series B Preferred Stock”) and the rest of which may be divided into classes and into series within any class as determined by Valley’s Board of Directors. As of May 31, 2019, there were 331,747,425 shares of Valley Common Stock issued and outstanding, 354,100 treasury shares, 4,600,000 shares of Series A Preferred Stock outstanding and 4,000,000 shares of Series B Preferred Stock outstanding. As of May 31, 2019, except for 822,578 shares of Valley Common Stock issuable upon exercise of outstanding stock options granted pursuant to Valley’s stock plans listed on the Valley Disclosure Schedule (the “Valley Plans”) and 2,101,649 shares issued under the Valley Stock Plans as restricted stock units, there were no shares of Valley Common Stock issuable upon the exercise of outstanding stock options or otherwise. All issued and outstanding shares of Valley Common Stock, and all issued and outstanding shares of capital stock of Valley’s Significant Subsidiaries, have been duly authorized and validly issued, are fully paid, nonassessable and free of preemptive rights, and are free and clear of all Liens. All of the outstanding shares of capital stock of Valley’s Significant

 

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Subsidiaries are owned directly or indirectly by Valley free and clear of any Liens, except as listed in the Valley Disclosure Schedule. Except for the options referred to above under the Valley Plans, neither Valley nor any of Valley’s Significant Subsidiaries has or is bound by any outstanding subscriptions, options, warrants, calls, commitments or agreements of any character calling for the transfer, purchase or issuance of any shares of capital stock of Valley or Valley’s Significant Subsidiaries or any securities representing the right to purchase or otherwise receive any shares of such capital stock or any securities convertible into or representing the right to purchase or subscribe for any such shares, and there are no agreements or understandings with respect to voting of any such shares.

(b)    Except as set forth in the Valley Disclosure Schedule, no bonds, debentures, trust-preferred securities or other similar indebtedness of Valley (parent company only) are issued or outstanding.

4.3    Authority; No Violation.

(a)    Subject to the approval of this Agreement and the transactions contemplated hereby by the shareholders of Valley, and subject to the parties obtaining all necessary regulatory approvals, Valley has full corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby in accordance with the terms hereof and VNB has full corporate power and authority to execute and deliver the Bank Merger Agreement and to consummate the transactions contemplated thereby in accordance with the terms thereof. On or prior to the date of this Agreement, Valley’s Board of Directors, by resolutions duly adopted by unanimous vote of those voting at a meeting duly called and held, (i) declared the Merger and the other transactions contemplated hereby to be advisable, (ii) approved this Agreement, the Merger and the other transactions contemplated hereby and (iii) resolved to recommend that the shareholders of Valley approve the issuance of Valley Common Stock in connection with the Merger at the Valley Shareholders Meeting. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly approved by the Board of Directors of Valley. The execution and delivery of the Bank Merger Agreement has been duly and validly approved by the Board of Directors of VNB. Except for the approvals described in paragraph (b) below, no other corporate proceedings on the part of Valley or VNB are necessary to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by Valley and, assuming due and valid execution and delivery of this Agreement by Oritani, constitutes a valid and binding obligation of Valley, enforceable against Valley in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights and remedies generally and subject, as to enforceability, to general principles of equity, whether applied in a court of law or a court of equity.

(b)    Neither the execution and delivery of this Agreement by Valley nor the execution and delivery of the Bank Merger Agreement by VNB and by Valley in its capacity as sole shareholder of VNB, nor the consummation by Valley of the transactions contemplated hereby in accordance with the terms hereof or the consummation by VNB of the transactions contemplated thereby in accordance with the terms thereof or compliance by Valley with any of the terms or provisions hereof or compliance by VNB with any of the terms or provisions thereof, will (i) violate any provision of the Valley Charter Documents, (ii) assuming that the consents and approvals set forth below are duly obtained, violate any statute, code, ordinance, rule, regulation,

 

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judgment, order, writ, decree or injunction applicable to Valley or VNB or any of their respective properties or assets, or (iii) violate, conflict with, result in a breach of any provision of, constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, result in the termination of, accelerate the performance required by, or result in the creation of any lien, security interest, charge or other encumbrance upon any of the respective properties or assets of Valley or VNB 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 Valley or VNB is a party, or by which Valley or VNB or any of their respective properties or assets may be bound or affected, except, with respect to (ii) and (iii) above, such as individually or in the aggregate will not have a Material Adverse Effect on Valley. Except for consents and approvals of or filings or registrations with or notices to the OCC, the FRB, the NJDOBI, the New Jersey Department of Treasury, the Secretary of State of the State of Delaware, the SEC, NASDAQ and the shareholders of Valley, no consents or approvals of or filings or registrations with or notices to any federal or state governmental authority, instrumentality or administrative agency or, to the knowledge of Valley, any third party are necessary on behalf of Valley or VNB in connection with (a) the execution and delivery by Valley of this Agreement, (b) the consummation by Valley of the transactions contemplated hereby and (c) the execution and delivery by VNB of the Bank Merger Agreement and the consummation by VNB of the transactions contemplated thereby. To the knowledge of Valley, there is no reason why the consents and approvals referenced in the preceding sentence will not be obtained in a timely fashion.

4.4    Financial Statements.

(a)    Valley’s (a) Annual Report on Form 10-K for the year ended December 31, 2018 filed with the SEC under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), sets forth the consolidated balance sheets of Valley as of December 31, 2018 and 2017, and the related consolidated statements of income, shareholders’ equity and cash flows for the periods ended December 31 in each of the three years 2016 through 2018, accompanied by the audit report of Valley’s independent public accountants, and (b) Quarterly Report on Form 10-Q for the period ended March 31, 2019 filed with the SEC under the Exchange Act sets forth the unaudited consolidated balance sheets of Valley as of March 31, 2019 and 2018 and the related unaudited consolidated statements of income, shareholders’ equity and cash flows for the three months ended March 31, 2019 and 2018 ((a) and (b) collectively, the “Valley Financial Statements”). The Valley Financial Statements (including the related notes), have been prepared in accordance with GAAP consistently applied during the periods involved, and fairly present in all material respects the consolidated financial position of Valley as of the respective dates set forth therein, and the related consolidated statements of income, changes in shareholders’ equity and of cash flows (including the related notes, where applicable) fairly present in all material respects the consolidated results of operations and changes in shareholders’ equity and of cash flows of Valley for the respective fiscal periods set forth therein.

(b)    The books and records of Valley and its Significant Subsidiaries have been and are being maintained in material compliance with applicable legal and accounting requirements, and reflect only actual transactions.

(c)    Except as and to the extent reflected, disclosed or reserved against in the Valley Financial Statements (including the notes thereto), as of December 31, 2018, neither Valley

 

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nor any of its Significant Subsidiaries had any obligations or liabilities, whether absolute, accrued, contingent or otherwise material to the business, operations, assets or financial condition of Valley or any of its Significant Subsidiaries and which are required by GAAP to be disclosed in the Valley Financial Statements. Since March 31, 2019, neither Valley nor any of its Significant Subsidiaries have incurred any material liabilities, except in the ordinary course of business and consistent with past practice, except as specifically contemplated by or incurred in connection with this Agreement.

(d)    KPMG LLP, which has expressed its opinion with respect to the audited financial statements of Valley and its subsidiaries (including the related notes), is and has been throughout the periods covered by such applicable financial statements (x) a registered public accounting firm (as defined in Section 2(a)(12) of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”)) and (y) “independent” with respect to Valley within the meaning of the rules of applicable bank regulatory authorities and the Public Company Accounting Oversight Board.

4.5    Brokerage Fees. Other than as disclosed on the Valley Disclosure Schedule, neither Valley nor any of its Subsidiaries nor any of their respective directors or officers has employed any broker, investment banker, financial advisor or finder or incurred any liability for any broker’s, financial advisors’, finder’s fees or similar fees or commissions in connection with any of the transactions contemplated by this Agreement. J.P. Morgan Securities, LLC has delivered to the Board of Directors of Valley an opinion (which, if initially rendered orally, has been or will be confirmed in writing, dated the same date) to the effect that, as of the date of such opinion and based upon and subject to the factors, assumptions, qualifications and limitations set forth therein, the Exchange Ratio (without giving effect to any adjustment thereof pursuant to Section 7.1(k) hereof) is fair, from a financial point of view, to Valley.

4.6    Absence of Certain Changes or Events. Except as disclosed in the Valley Disclosure Schedule, since December 31, 2018, there has not been any condition, event, change or occurrence that, individually or in the aggregate, has had, or is reasonably likely to have, a Material Adverse Effect on Valley.

4.7    Absence of Acceleration and Other Benefits. The consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee of Valley or any Valley Subsidiary to severance pay, unemployment compensation or any similar payment, or (ii) accelerate the time of payment, accelerate the vesting, or increase the amount, of any compensation or benefits due to any current employee or former employee under any Valley pension plan, welfare plan, stock option plan, stock purchase plan, deferred compensation plan, severance plan, bonus plan, employment agreement or other similar plan, program or arrangement.

4.8    Valley Common Stock. The shares of Valley Common Stock to be issued hereunder pursuant to the Merger, will be duly and validly reserved for issuance, and when issued in accordance with the terms of this Agreement, will be duly authorized and validly issued, fully paid, nonassessable, free of preemptive rights and free and clear of all Liens created by or through Valley, with no personal liability attaching to the ownership thereof.

4.9    Legal Proceedings. Except as disclosed in the Valley Disclosure Schedule, neither Valley nor any of its Subsidiaries is a party to any, and there are no pending or, to Valley’s

 

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knowledge, threatened, legal, administrative, arbitral or other proceedings, claims, actions or governmental investigations of any nature against Valley or any of its Subsidiaries which, if decided adversely to Valley, or any of its Subsidiaries, would be reasonably likely to have a Material Adverse Effect on Valley. Except as disclosed in the Valley Disclosure Schedule, neither Valley nor any of Valley’s Subsidiaries is a party to any order, judgment or decree entered against Valley or any such Subsidiary in any lawsuit or proceeding which would have a Material Adverse Effect on Valley.

4.10    Taxes and Returns.

(a)    Except as set forth in the Valley Disclosure Schedule, or as would not have a Material Adverse Effect on Valley or VNB, Valley, VNB and each of their Subsidiaries have timely filed (and until the Effective Time will so file) all material Returns required to be filed by them in respect of any Taxes (which such Returns which have already been filed were and continue to be, true, correct and complete in all material respects and which such Returns which will be filed will be true, correct and complete in all material respects when filed) and each has duly paid (and until the Effective Time will so pay) all such Taxes shown as due and payable on such Returns, other than Taxes or other charges which are being contested in good faith (and disclosed to Oritani in writing). Except as set forth in the Valley Disclosure Schedule, Valley, VNB and each of their Subsidiaries have established (and until the Effective Time will establish) on their books and records reserves for the payment of all Taxes not yet due and payable, but incurred in respect of Valley, VNB or any Subsidiary through such date, which reserves are adequate for such purposes. Except as set forth in the Valley Disclosure Schedule, the federal income Returns of Valley, VNB and each of their Subsidiaries have been examined by the IRS (or are closed to examination due to the expiration of the applicable statute of limitations) and no deficiencies were asserted as a result of such examinations which have not been resolved and paid in full. Except as set forth in the Valley Disclosure Schedule, the applicable state income and local Returns of Valley, VNB and each of their Subsidiaries have been examined by the applicable authorities (or are closed to examination due to the expiration of the statute of limitations) and no deficiencies were asserted as a result of such examinations which have not been resolved and paid in full. Except as set forth in the Valley Disclosure Schedule, there are no audits or other administrative or court proceedings presently pending nor any other disputes pending, or claims asserted for, Taxes or assessments upon Valley, VNB or any of their Subsidiaries, nor has Valley, VNB or any of their Subsidiaries given any currently outstanding waivers or comparable consents regarding the application of the statute of limitations with respect to any Taxes or Returns.

(b)    Except as set forth in the Valley Disclosure Schedule, neither Valley, VNB nor any of their Subsidiaries: (i) has requested any extension of time within which to file any Tax Return which Return has not since been filed; (ii) is a party to any agreement providing for the allocation or sharing of Taxes (except agreements between and/or among Valley, VNB and/or any of their Subsidiaries; (iii) is required to include in income any adjustment pursuant to Section 481(a) of the Code, by reason of a voluntary change in accounting method initiated by Valley, VNB or any Subsidiary (nor does Valley or VNB have any knowledge that the IRS has proposed any such adjustment or change of accounting method); (iv) has taken or agreed to take any action, has failed to take any action, or knows of any fact, agreement, plan or other circumstances that could prevent the Merger from qualifying as a “reorganization” within the meaning of Section 368(a)(1)(A) of the Code; (v) has been a party to any distribution occurring in the last five years

 

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in which the parties to such distribution treated the distribution as one to which Section 355 of the Code applied; (vi) has been included in any “consolidated,” “unitary” or “combined” Return (other than the Returns which include Valley, VNB and each of their Subsidiaries) provided for under the laws of the United States, any foreign jurisdiction or any state or locality or has any liability for Taxes of any person (other than Valley, VNB and/or any of their Subsidiaries) arising from the application of Treasury Regulations Section 1.1502-6 or any analogous provision under the laws of any foreign jurisdiction or any state or locality, or as a transferee or successor, by contract, or otherwise; (vii) has participated in or otherwise engaged in any transaction described in Treasury Regulations Section 301.6111-2(b)(2) or any Reportable Transaction within the meaning of Treasury Regulations Section 1.6011-4(b); (viii) has been a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code; and/or (ix) has received any claim by a Governmental Entity in a jurisdiction where it does not file Returns that it is or may be subject to taxation by that jurisdiction.

(c)    Except as set forth in the Valley Disclosure Schedule, (i) Valley, VNB and each of their Subsidiaries has complied with all applicable laws, rules and regulations relating to the payment and withholding of Taxes and has, within the time and in the manner provided by law, withheld and paid over to the proper Governmental Entities all amounts required to be so withheld and paid over under applicable laws; and (ii) Valley, VNB and each of their Subsidiaries has maintained such records in respect to each transaction, event and item (including as required to support otherwise allowable deductions and losses) as are required under applicable Tax law, except where the failure to comply or maintain records under (i) or (ii) will not result in a Material Adverse Effect on Valley.

(d)    Valley has made available to Oritani true, correct and complete copies of: (i) all material Returns filed within the past three years by Valley, VNB and each of their Subsidiaries; (ii) all audit reports, letter rulings, technical advice memoranda and similar documents issued by a Governmental Entity within the past three years relating to Taxes due from or with respect to Valley, VNB or any of its Subsidiaries; and (iii) any closing letters or agreements entered into by Valley, VNB or any of their Subsidiaries with any Governmental Entities within the past five years with respect to Taxes.

4.11    Employee Benefit Plans.

(a)    Set forth on the Valley Disclosure Schedule are copies of the “employee pension benefit plans”, within the meaning of Section 3(2)(A) of ERISA (the “Valley Pension Plans”), or “employee welfare benefit plans”, within the meaning of Section 3(1) of ERISA (the “Valley Welfare Plans”), equity plans or other similar plans, programs or arrangements which are currently available to employees joining Valley.

(b)    Valley has previously delivered or made available to Oritani a complete and accurate copy of each of the following with respect to each of the Valley Pension Plans and Valley Welfare Plans: (i) plan document, summary plan description, and summary of material modifications (if not available, a detailed description of the foregoing); and (ii) the most recent annual reports on Form 5500, if any.

 

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(c)    All contributions required to be made to each Valley Pension Plan under the terms thereof, ERISA or other applicable law have been timely made, and all amounts properly accrued to date as liabilities of Valley and its Subsidiaries which have not been paid have been properly recorded on the books of Valley and its Subsidiaries.

(d)    Except as disclosed on the Valley Disclosure Schedule, each of the Valley Pension Plans, the Valley Welfare Plans and each other plan and arrangement identified on the Valley Disclosure Schedule has been operated in compliance in all material respects with the applicable provisions of ERISA, the Code, all regulations, rulings and announcements promulgated or issued thereunder, and all other applicable governmental laws and regulations.

(e)    There are no pending, or, to Valley’s knowledge, threatened or anticipated claims by, on behalf of or against any of the Valley Pension Plans or the Valley Welfare Plans, any trusts related thereto or any other plan or arrangement identified in the Valley Disclosure Schedule other than claims for benefits in the ordinary course of business.

4.12    Compliance with Applicable Law.

(a)    Except as set forth on the Valley Disclosure Schedule, each of Valley and the Valley Subsidiaries (i) holds all licenses, franchises, permits and authorizations necessary for the lawful conduct of its business, except where the failure to hold such license, franchise, permit or authorization would not, individually or in the aggregate, result in a Material Adverse Effect on Valley, and (ii) has complied with and is not in default in any respect under any, applicable law, statute, order, rule, regulation, policy and/or guideline of any Governmental Entity relating to Valley or any of its Subsidiaries, including, without limitation, consumer, community and fair lending laws, other than where any non-compliance or default would not reasonably be expected to, individually or in the aggregate, result in a Material Adverse Effect on Valley and neither Valley nor any of the Valley Subsidiaries, since January 1, 2017, has received written notice of such violation of any of the above that has not been cured.

(b)    Without limiting the foregoing and except as set forth on the Valley Disclosure Schedule, (i) VNB has complied in all material respects with the CRA and (ii) to Valley’s knowledge, no person or group would object to the consummation of the Merger due to the CRA performance of or rating of VNB. Except as set forth on the Valley Disclosure Schedule, since January 1, 2017, no person or group has adversely commented upon VNB’s CRA performance.

(c)    To the knowledge of Valley, there is no reason why the granting of any of the necessary permits, consents, approvals and authorizations by the governmental bodies necessary to consummate the transactions contemplated by this Agreement would be denied or unduly delayed.

4.13    Environmental Matters.

(a)    Except as set forth in the Valley Disclosure Schedule, to Valley’s knowledge, (i) the operations of Valley and each of its Subsidiaries are in compliance with and have complied with all applicable Environmental Laws, (ii) neither Valley nor any of its Subsidiaries has any liability known or unknown, contingent or absolute, under any Environmental

 

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Law, nor is Valley or any Subsidiary responsible for any such liability of any other person or entity under any Environmental Law, whether by contract, by operation of law or otherwise, (iii) neither Valley nor any Valley Subsidiary has received any written notice, citation, claim, assessment, proposed assessment or demand for abatement in the last five years alleging that Valley or such Valley Subsidiary (either directly or as a trustee or fiduciary, or as a successor-in-interest in connection with the enforcement of remedies to realize the value of properties serving as collateral for outstanding loans) may be in violation of any Environmental Law or may have any liability under any Environmental Law, and (iv) no toxic or hazardous substances or materials have been emitted, generated, disposed of or stored on any real property owned or leased by Valley or any Valley Subsidiary, OREO or otherwise, or owned or controlled by Valley or any Valley Subsidiary as a trustee or fiduciary (collectively, “Valley Properties”) in any manner that violates or, after the lapse of time is reasonably likely to violate, any Environmental Law given the current use of the Valley Properties.

(b)    Except as set forth in the Valley Disclosure Schedule, to Valley’s knowledge, none of the Valley Properties has been operated in any manner that violated any Environmental Law, the violation of which would have a Material Adverse Effect on Valley.

(c)    To Valley’s knowledge, no Valley Property is listed or proposed to be listed on the National Priorities List or the Comprehensive Environmental Response, Compensation, and Liability Information System or any other governmental database or list of properties that may or do require remedial action under Environmental Laws. Neither Valley nor any of its Subsidiaries has arranged by contract, agreement or otherwise for the transportation, disposal or treatment of hazardous or toxic substances at any location such that it is or could be liable for remedial actions of such location pursuant to Environmental Laws.

4.14    Reserves.

(a)    The allowance for loan and lease losses in the Valley Financial Statements, was, as of March 31, 2019, (i) adequate under GAAP, and (ii) adequate based upon Valley’s estimate of probable credit losses inherent in the loan portfolio.

(b)    As of March 31, 2019, the reserve for Taxes as calculated under and required under FIN 48 in the Valley Financial Statements was adequate for all contingencies and includes all reasonably possible contingencies known as of such date.

(c)    As of March 31, 2019, the impairment on loans, investments, derivatives, and any other financial instrument in the Valley Financial Statements was correctly accounted for under GAAP.

4.15    Agreements with Bank Regulators. Neither Valley nor any Valley Subsidiary is a party to any agreement or memorandum of understanding with, or a party to any commitment letter, board resolution submitted to a regulatory authority or similar undertaking to, or is subject to any order or directive by, or is a recipient of any extraordinary supervisory letter from, any Governmental Entity which restricts materially the conduct of its business, or in any manner relates to its capital adequacy, its credit or reserve policies or its management, except for those the existence of which has been disclosed in writing to Oritani by Valley prior to the date of

 

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this Agreement, nor has Valley been advised by any Governmental Entity that it is contemplating issuing or requesting (or is considering the appropriateness of issuing or requesting) any such order, decree, agreement, memorandum of understanding, extraordinary supervisory letter, commitment letter or similar submission. Neither Valley nor any Valley Subsidiary is required by Section 32 of the Federal Deposit Insurance Act to give prior notice to a federal banking agency of the proposed addition of an individual to its Board of Directors or the employment of an individual as a senior executive officer, except as disclosed in writing to Oritani by Valley prior to the date of this Agreement. Notwithstanding the foregoing, nothing in this Section 4.15 or this Agreement shall require Valley to provide Oritani with any confidential regulatory supervisory information of Valley or VNB.

4.16    SEC Documents; Other Reports; Internal and Disclosure Controls.

(a)    Valley has filed all reports, schedules, registration statements and other documents, together with amendments thereto, required to be filed with the SEC since December 31, 2017 (the “Valley SEC Reports”). As of their respective dates of filing with the SEC (or, if amended or superseded by a subsequent filing prior to the date hereof, as of the date of such subsequent filing), the Valley SEC Reports complied, and each such Valley SEC Report filed subsequent to the date hereof will comply, in all material respects with the applicable requirements of the Securities Act of 1933, as amended (the “Securities Act”), the Exchange Act, the Sarbanes-Oxley Act, the Dodd-Frank Wall Street Reform and Consumer Protection Act and did not or will not, as the case may be, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. There are no outstanding comments from, or unresolved issues raised by, the SEC with respect to any of the Valley SEC Reports. None of Valley’s Significant Subsidiaries is required to file periodic reports with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. No executive officer of Valley has failed in any respect to make the certifications required of him or her under Sections 302 or 906 of the Sarbanes-Oxley Act and to the knowledge of Valley no enforcement action has been initiated against Valley by the SEC relating to disclosures contained in any Valley SEC Report.

(b)    Valley and each of its Significant Subsidiaries have filed all material reports, registrations and statements, together with any amendments required to be made with respect thereto, that they were required to file since December 31, 2017 with any Governmental Entity (other than the SEC) and have paid all fees and assessments due and payable in connection therewith. Except as set forth in the Valley Disclosure Schedule, no Governmental Entity has initiated any proceeding or, to the knowledge of Valley, threatened an investigation into the business or operations of Valley or any of its Significant Subsidiaries since December 31, 2016. Except as set forth in the Valley Disclosure Schedule, there is no material unresolved violation, criticism or exception by any Governmental Entity with respect to any report, registration or statement filed by, or relating to any examinations by any such Governmental Entity of, Valley or any of its Subsidiaries.

(c)    Valley and its Subsidiaries have devised and maintain a system of internal accounting controls sufficient to provide reasonable assurances regarding the reliability of financial reporting and the preparation of Valley’s financial statements for external purposes in accordance with GAAP. Valley (A) has designed disclosure controls and procedures (within the

 

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meaning of Rules 13a-15(e) and 15d-15(e) of the Exchange Act) to ensure that material information relating to Valley and its Subsidiaries is made known to the management of Valley by others within those entities as appropriate to allow timely decisions regarding required disclosure and to make the certifications required by the Exchange Act with respect to the Valley SEC Reports, and (B) has disclosed, based on its most recent evaluation prior to the date hereof, to Valley’s auditors and the audit committee of Valley’s Board of Directors (1) any significant deficiencies in the design or operation of internal controls which could adversely affect in any material respect Valley’s ability to record, process, summarize and report financial data and have identified for Valley’s auditors any material weaknesses in internal controls and (2) any fraud, whether or not material, that involves management or other employees who have a significant role in Valley’s internal controls. Valley’s management has completed an assessment of the effectiveness of its internal control over financial reporting in compliance with the requirements of Section 404 of the Sarbanes-Oxley Act for the year ended December 31, 2018, and such assessment concluded that such controls were effective.

(d)    Except as set forth in the Valley Disclosure Schedule, since January 1, 2018, neither Valley nor any of its Subsidiaries nor, to the knowledge of Valley, any member of Valley’s Board of Directors or executive officer of Valley or any of its Subsidiaries, has received or otherwise had or obtained knowledge of any material written complaint, allegation, assertion or claim, regarding the accounting or auditing practices, procedures, methodologies or methods of Valley or any of its Subsidiaries or their respective internal accounting controls including any material complaint, allegation, assertion or claim that Valley or any of its Subsidiaries has engaged in questionable accounting or auditing practices, and no attorney representing Valley or any of its Subsidiaries, whether or not employed by Valley or any of its Subsidiaries, has reported evidence of a material violation of securities laws, breach of fiduciary duty or similar violation by Valley or any of its officers, directors, employees or agents to any member of Valley’s Board of Directors or any executive officer of Valley.

4.17    Certain Contracts. Except as set forth in the Valley Disclosure Schedule, (i) each Valley contract which is a material contract (as defined in Item 601(b)(10) of Regulation S-K of the SEC) to be performed in whole or in part after the date of this Agreement (each, a “Valley Contract”) is valid and binding on Valley or its applicable Significant Subsidiary and in full force and effect, and, to the knowledge of Valley, is valid and binding on the other parties thereto, (ii) Valley and each of its Significant Subsidiaries and, to the knowledge of Valley, each of the other parties thereto, has in all material respects performed all obligations required to be performed by such party to date under each Valley Contract, and (iii) no event or condition exists which constitutes or, after notice or lapse of time or both, would constitute a material breach or default on the part of Valley or any of its Significant Subsidiaries or, to the knowledge of Valley, any other party thereto, under any such Valley Contract, except, in each case, where such invalidity, failure to be binding, failure to so perform or breach or default, individually or in the aggregate, would not have or reasonably be expected to have a Material Adverse Effect on Valley.

4.18    Loan Matters.

(a)    Except as set forth in the Valley Disclosure Schedule, each outstanding loan (including loans held for resale to investors but excluding any loan covered by a loss-sharing agreement with the FDIC as described in the Valley Disclosure Schedule) held by Valley or its

 

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Significant Subsidiaries (the “Valley Loans”) has been solicited and originated and is administered and, where applicable, serviced, and the relevant Valley Loan files are being maintained, in all material respects in accordance with the relevant loan documents, Valley’s underwriting standards (and, in the case of Valley Loans held for resale to investors, the underwriting standards, if any, of the applicable investors) and with all applicable requirements of federal, state and local laws, regulations and rules, except for such exceptions as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Valley. Notwithstanding anything to the contrary in this Agreement, the representations and warranties of Valley with respect to Valley Loans that were acquired by Valley or its Subsidiaries from a third party (e.g., in connection with a merger or other acquisition) shall be made only to the knowledge of Valley.

(b)    Except as set forth in the Valley Disclosure Schedule or as would not have a Material Adverse Effect on Valley, each Valley Loan (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 secured, has been secured by valid Liens which have been perfected and (iii) to Valley’s knowledge, is a legal, valid and binding obligation of the obligor named therein, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent conveyance and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles. Except as would not have a Material Adverse Effect on Valley, the loan documents with respect to each Valley Loan were in compliance with applicable laws and regulations at the time of origination or purchase by Valley or its Subsidiaries and are complete and correct in all material respects.

(c)    Except as listed in the Valley Disclosure Schedule, (i) there are no employee, officer, director or other affiliate loans on which the borrower is paying a rate other than that reflected in the note or the relevant credit agreement or on which the borrower is paying a rate which was below market at the time the loan was made and (ii) all such loans are and were made in compliance with all applicable laws and regulations, except for such exceptions as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Valley.

(d)    Valley has previously delivered to Oritani a schedule setting forth (A) each Valley Loan that as of May 31, 2019 was classified as “Special Mention,” “Substandard,” “Doubtful,” “Loss,” “Classified,” “Criticized,” “Credit Risk Assets,” “Concerned Loans,” “Watch List” or words of similar import by Valley, any of its Subsidiaries or any bank examiner, together with the principal amount of and accrued and unpaid interest on each such Valley Loan, (B) each Valley Loan that was classified as of May 31, 2019 under ASC 310, and (C) each asset of Valley or any of its Subsidiaries that as of May 31, 2019 was classified as OREO and the book value thereof as of such date. Such schedule is accurate and complete in all material respects.

(e)    Except as set forth in the Valley Disclosure Schedule, none of the agreements pursuant to which Valley or any of its Significant Subsidiaries has sold loans or pools of loans or participations in loans or pools of loans contains any obligation to repurchase such loans or interests therein solely on account of a payment default by the obligor on any such loan.

4.19    Reports. Except as set forth in the Valley Disclosure Schedule, VNB has, since January 1, 2018, duly filed with the OCC, and Valley has duly filed with the FRB, in correct

 

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form all documentation required to be filed under applicable laws and regulations, and Valley promptly will deliver or make available to Oritani accurate and complete copies of such documentation. Notwithstanding the foregoing, nothing in this Section 4.19 or this Agreement shall require Valley to provide Oritani with any confidential regulatory supervisory information of Valley or VNB.

4.20    Questionable Payments. To Valley’s knowledge, neither Valley, VNB nor any of their Subsidiaries or affiliates has: (a) directly or indirectly, used any corporate funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to foreign or domestic political activity; (b) made any direct or indirect unlawful payments to any foreign or domestic governmental officials, employees or agents of any foreign or domestic government or to any foreign or domestic political parties or campaigns from corporate funds; (c) violated any provision of the Foreign Corrupt Practices Act of 1977, as amended; or (d) made any other unlawful bribe, rebate, payoff, influence payment, kickback, or other material unlawful payment to any foreign or domestic governmental official, or employee, or any agent of any foreign or domestic government.

4.21    Anti-Money Laundering Laws. Since January 1, 2016, Valley has no knowledge of, nor has it been advised of, or has reason to believe that any facts or circumstances exist that would cause Valley, VNB or any of their Subsidiaries: (i) to be deemed to have knowingly acted, by itself or in conjunction with another, in any act in connection with Unlawful Gains; (ii) to be deemed to have knowingly accepted, transported, stored, dealt in or brokered any sale, purchase or any transaction of other nature for Unlawful Gains; or (iii) to be deemed to be operating in violation in any material respect of the U.S. Anti-Money Laundering Laws. The Board of Directors of each of Valley and VNB has adopted, and has implemented, an anti-money laundering program that contains adequate and appropriate customer identification verification procedures that comply in all material respects with the U.S. Anti-Money Laundering Laws and has kept and filed all material reports and other necessary material documents as required by such laws.

4.22    Vote Required. Assuming that a quorum is present at the Valley Shareholders Meeting (as hereinafter defined), approval by holders of a majority of the outstanding shares of Valley Common Stock voting at the Valley Shareholder Meeting shall be sufficient to constitute approval by Valley’s shareholders of the matter set forth in Section 5.7(b) hereof. A majority of the outstanding shares of Valley Common Stock constitutes a quorum for purposes of the Valley Shareholders Meeting. The shares of Series A Preferred Stock and Series B Preferred Stock do not have the rights to vote with respect to any of the matters set forth in Section 5.7(b) hereof under the Valley Charter Documents, New Jersey law any written agreement or otherwise.

4.23    OFAC. Neither Valley nor VNB is, nor would either reasonably be expected to become, a person or entity with whom a United States person or entity is restricted from doing business under regulation of the OFAC (including those named on OFAC’s Specially Designated and Blocked Persons List) or under any statute, executive order (including, without limitation, the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action. Valley and VNB have implemented an OFAC compliance program that adequately covers in all material respects all elements of OFAC compliance, and to the knowledge

 

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of Valley and to the knowledge of VNB, no Subsidiary or affiliate of Valley or VNB is engaging nor has any Subsidiary or affiliate of Valley or VNB engaged in any dealings or transactions with, and no Subsidiary or affiliate of Valley or VNB has been otherwise associated with, such persons or entities.

4.24    Properties. To Valley’s knowledge, and except as set forth in the Valley SEC Reports or the Valley Disclosure Schedule, Valley and its Subsidiaries have good, and as to all real property owned by Valley or any of its Subsidiaries, as OREO or otherwise, marketable and fee simple, title to all material assets and properties, whether real or personal, tangible or intangible, reflected in Valley’s consolidated balance sheet as of December 31, 2018, or owned and acquired subsequent thereto (except to the extent that such assets and properties have been disposed of for fair value since December 31, 2018 to third parties in arm’s length transactions). Valley and its Subsidiaries as lessees have the right under valid and subsisting leases to occupy, use, possess and control all property leased by them in all material respects as presently occupied, used, possessed and controlled by them.

4.25    Reorganization. Neither Valley nor any of its Subsidiaries has taken or agreed to take any action, has failed to take any action, or knows of any fact, agreement, plan or other circumstances that could reasonably be expected to prevent the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code.

4.26    Investment Securities.

(a)    Except for investments in Federal Home Loan Bank stock, Federal Reserve Bank stock and pledges to secure Federal Home Loan Bank or Federal Reserve Bank borrowings and reverse repurchase agreements entered into in arms-length transactions pursuant to normal commercial terms and conditions and entered into in the ordinary course of business and restrictions that exist for securities to be classified as “held to maturity,” none of the investment securities held by Valley or any of its Subsidiaries is subject to any restriction (contractual or statutory) that would materially impair the ability of the entity holding such investment to freely dispose of such investment at any time.

(b)    Neither Valley nor any of its Subsidiaries is a party to or has agreed to enter into an exchange-traded or over-the-counter equity, interest rate, foreign exchange or other swap, forward, future, option, cap, floor or collar or any other contract that is not included on the face of the Valley Financial Statements and is a Derivatives Contract or owns securities that (A) are referred to generically as “structured notes,” “high risk mortgage derivatives,” “capped floating rate notes” or “capped floating rate mortgage derivatives” or (B) are likely to have changes in value as a result of interest or exchange rate changes that significantly exceed normal changes in value attributable to interest or exchange rate changes, except for those Derivatives Contracts and other instruments listed (as of the date hereof) in the Valley Disclosure Schedule.

4.27    Minute Books. Since January 1, 2017, the minute books of Valley and its Significant Subsidiaries contain records that are accurate in all material respects of all meetings of and other corporate action taken by their respective shareholders and Boards of Directors (including committees of their respective Boards of Directors).

 

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4.28    Disclosures. No representation or warranty contained in Article IV of this Agreement, including the Valley Disclosure Schedule, contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements herein not misleading.

ARTICLE V. - COVENANTS OF THE PARTIES

5.1    Conduct of the Business of Oritani and Valley. During the period from the date of this Agreement to the Effective Time, each of Oritani and Valley shall, and shall cause each of its respective Significant Subsidiaries to, (i) conduct its respective business and engage in transactions permitted hereunder only in the ordinary course and consistent with past practice and (ii) shall not, and shall cause their respective Significant Subsidiaries not to, knowingly take any action that would reasonably be expected to adversely 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. Each of Oritani and Valley shall also use its commercially reasonable efforts to preserve its business organization and that of its respective Significant Subsidiaries intact and maintain its rights, franchises and existing relations with customers, suppliers and employees.

5.2    Negative Covenants and Dividend Covenants. (a) Oritani agrees that from the date hereof to the Effective Time, except as otherwise approved by Valley in writing (such approval not to be unreasonably withheld, conditioned or delayed) or as otherwise permitted or required by this Agreement, it will not, nor will it permit any of its Subsidiaries to:

(i)    change any provision of the Oritani Charter Documents;

(ii)    change the number of shares of its authorized or issued capital stock (other than the issuance of capital stock in connection with the exercise of any previously issued Oritani Stock Options) or issue or grant any option, warrant, call, commitment, subscription, right to purchase or agreement of any character relating to the authorized or issued capital stock of Oritani or any Oritani Subsidiary or any securities convertible into shares of such stock or split, combine or reclassify any shares of its capital stock, or redeem or otherwise acquire any shares of such capital stock, or declare, set aside or pay any dividend, or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, except for the regular quarterly cash dividend of $0.25 per share of Oritani Common Stock paid with respect to the quarter and year ended June 30, 2019, with record and payment dates consistent with past practice; provided that quarterly cash dividends declared and paid thereafter by Oritani shall equal $0.18 per share of Oritani Common Stock (and if Valley increases its regular quarterly cash dividend from that paid for the quarter immediately prior to the date of this Agreement, then the Oritani quarterly cash dividend shall be increased to an amount equal to the Exchange Ratio multiplied by the increase quarterly cash dividend); provided further that for each quarter beginning in the fourth calendar quarter of 2019 to the Effective Time, Oritani shall have a record and payment date for its quarterly cash dividend consistent with Valley’s record and payment date (it being the intention of the parties hereto that holders of Oritani Common Stock shall not receive two dividends, or fail to receive one dividend, in any quarter with respect to their shares of Oritani Common Stock and any shares of Valley Common Stock any such holder receives in exchange therefor in the Merger);

 

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(iii)    repurchase any Oritani Common Stock except in connection with the exercise of any Oritani Stock Option or the vesting of Oritani Restricted Stock;

(iv)    Except for retention payments paid pursuant to Section 5.13(e), (A) grant any severance or termination pay (other than severance or termination pay pursuant to the Oritani Benefit Plans in effective on the date hereof or severance pay consistent with past practice) to, (B) enter into or amend any employment agreement with, any of its directors, officers or employees, adopt any new employee benefit plan or arrangement of any type or amend any such existing benefit plan or arrangement (other than amendments required to comply with applicable law and regulations) or (C) grant any salary or wage increase or increase any employee benefit or pay any incentive, commission or bonus payments, or grant any equity compensation except (1) for normal increases in base compensation to employees, including officers, in the ordinary course of business consistent with past practice and pursuant to written policies currently in effect, provided that such increases shall not result in an annual increase in total annual cash compensation of more than 3% for any individual or 3% in the aggregate for all employees of Oritani (provided, however, the 3% individual limit shall not apply to any employee whose annual compensation is less than $100,000), (2) to satisfy written contractual obligations existing as of the date of this Agreement and disclosed in the Oritani Disclosure Schedule, if any, and (3) for an annual bonus payment paid to any individual employee pursuant to written policies currently in effect and as to executive officers, as reflected in the Oritani Disclosure Schedules. Notwithstanding anything to the contrary contained in this Section 5.2(a), neither Oritani nor any of its Subsidiaries shall provide compensation of any type to any “disqualified individual” to the extent such compensation would be expected to constitute an “excess parachute payment” as defined in Section 280G of the Code;

(v)    sell or dispose of any assets with a market value greater than $300,000 or incur any liability with a principal balance greater than $300,000 other than sales of OREO and other than in the ordinary course of business consistent with past practices and policies or agree to a bulk sale of loans in excess of $25 million;

(vi)    (A) make any capital expenditures or (B) enter into any new service agreement or similar contract not terminable by Oritani within sixty (60) days and involving amounts in excess of $300,000 individually or $1,500,000 in the aggregate, other than pursuant to binding commitments existing on the date hereof and expenditures necessary to maintain existing assets in good repair and expenditures described in business plans or budgets previously furnished to Valley;

(vii)    file any applications or make any contract with respect to branching or site location or relocation;

(viii)    agree to acquire in any manner whatsoever (other than to realize upon on collateral for a defaulted loan) any business or entity;

 

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(ix)    make any new investments in securities other than investments in federal government or federal agency bonds having a weighted average life or duration of not greater than five years;

(x)    make any material change in its accounting methods or practices, other than changes required in accordance with GAAP or any applicable regulatory accounting requirements;

(xi)    take any action that would result in any of the representations and warranties contained in Article III of this Agreement not being true and correct in any material respect at the Effective Time or that would result in any of its conditions to Closing set forth in Section 6.1 and 6.2 not to be satisfied;

(xii)    make or commit to make any new loan or other extension of credit in an amount of $15,000,000 or more;

(xiii)    renew for a period in excess of one year any existing loan or other extension of credit which renewal would require Oritani to advance additional funds so that the aggregate outstanding balance of such renewed loan or other extension of credit would be greater than $15,000,000, or increase the outstanding balance of such renewed loan or other extension of credit to an amount in excess of $15,000,000 to any one borrower or to any group of affiliated borrowers, except such renewals or increases that are committed as of the date of this Agreement and identified on the Oritani Disclosure Schedule and residential mortgage loans made in the ordinary course of business consistent with past practice;

(xiv)    settle any claim, action or proceeding involving any liability of Oritani or any of its Subsidiaries for money damages in excess of $600,000 or involving any material restrictions upon the operations of Oritani or any of its Subsidiaries;

(xv)    make any investment or commitment to invest in real estate, other than investments related to maintenance of owned or leased real estate used by Oritani as of the date hereof, or in any real estate development project, other than real estate acquired in satisfaction of defaulted mortgage loans;

(xvi)    establish, or make any commitment relating to the establishment of, any new branch or other office facilities other than those for which all regulatory approvals have been obtained;

(xvii)    elect or nominate to the Board of Directors of Oritani any person who is not a member of the Board of Directors of Oritani as of the date hereof;

(xviii)    other than deposits at market rates, obtain, extend or modify any new debt or financing with a maturity greater than eighteen (18) months; or

(xix)    agree to do any of the foregoing.

 

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(b)    Valley agrees that from the date hereof to the Effective Time, except as otherwise approved by Oritani in writing (such approval not to be unreasonably withheld, conditioned or delayed) or as permitted or required by this Agreement, it will not, nor will it permit any of its Significant Subsidiaries to:

(i) change any provision of the Valley Charter Documents in a manner that would require the approval of the shareholders of Valley other than an increase in its authorized capital stock;

(ii) make any material change in its accounting methods or practices, other than changes required in accordance with GAAP or any applicable regulatory accounting requirements;

(iii) take any action that would result in any of the representations and warranties contained in Article IV of this Agreement not being true and correct in any material respect at the Effective Time or that would result in any of its conditions to Closing set forth in Section 6.1 and 6.3 not to be satisfied;

(iv) agree to do any of the foregoing.

5.3    No Solicitation. (a) Except as expressly permitted by this Section 5.3, Oritani and its Subsidiaries shall not, and Oritani and its Subsidiaries shall use their best efforts to cause their respective representatives not to initiate, solicit or knowingly encourage or facilitate inquiries or proposals with respect to, or engage in any negotiations concerning, or provide any confidential or nonpublic information or data to, or have any discussions with, any person relating to, any Acquisition Proposal (as hereinafter defined); provided that in the event, prior to the time the approval of Oritani’s shareholders (“Oritani Shareholder Approval”) is obtained but not after, (1) Oritani receives, after the execution of this Agreement, an unsolicited bona fide Acquisition Proposal from a person other than Valley, and (2) the Oritani Board of Directors concludes in good faith (A) that, after consulting with its financial advisor, such Acquisition Proposal constitutes a Superior Proposal (as hereinafter defined) or would reasonably be likely to result in a Superior Proposal and (B) that, after considering the advice of outside counsel, failure to take such actions would be inconsistent with its fiduciary duties to Oritani’s shareholders under applicable law, Oritani may, and may permit its Subsidiaries and its Subsidiaries’ representatives to, furnish or cause to be furnished nonpublic information or data and participate in negotiations or discussions with respect to such Acquisition Proposal; provided, that prior to providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, it shall have entered into an agreement with such third party on terms substantially similar to and no more favorable to such third party than those contained in the Confidentiality Agreement between Valley and Oritani dated May 8, 2019 (the “Confidentiality Agreement”), and any non-public information provided to any person given access to nonpublic information shall have previously been provided to Valley or shall be provided to Valley prior to or concurrently with the time it is provided to such person. Oritani will (A) immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any persons other than Valley with respect to any Acquisition Proposal, (B) not terminate, waive, amend, release or modify any provision of any confidentiality or standstill agreement relating to any Acquisition Proposal to which it or any of its affiliates or representatives is a party and (C) use its commercially reasonable efforts to enforce any confidentiality or similar agreement relating to any Acquisition Proposal.

 

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(b)    Neither the Oritani Board of Directors nor any committee thereof shall (i) (A) withdraw (or modify or qualify in any manner adverse to Valley) or refuse to make the Oritani Recommendation or (B) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal, or (ii) cause or permit Oritani or any of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other agreement constituting or related to, or which is intended to or is reasonably likely to lead to, any Acquisition Proposal (other than a confidentiality agreement permitted by the terms of Section 5.3(a) of this Agreement). Notwithstanding the foregoing, prior to the date of the Oritani Shareholders Meeting, the Oritani Board of Directors may take any of the actions specified in items (i) and (ii) of the preceding sentence (a “Oritani Subsequent Determination”) after the second (2nd) business day following Valley’s receipt of a written notice (the “Notice of Superior Proposal”) from Oritani (A) advising that the Oritani Board of Directors has decided that a bona fide unsolicited written Acquisition Proposal that it received (that did not result from a breach of this Section 5.3 or from an action by a representative of Oritani or its Subsidiaries that would have been such a breach if committed by Oritani or its Subsidiaries) constitutes a Superior Proposal (it being understood that Oritani shall be required to deliver a new Notice of Superior Proposal in respect of any revised Superior Proposal from such third party or its affiliates that Oritani proposes to accept), (B) specifying the material terms and conditions of, and the identity of the party making, such Superior Proposal, and (C) containing an unredacted copy of the relevant transactions agreements with the party making such Superior Proposal, if, but only if, (X) Valley does not make, after being provided with reasonable opportunity to negotiate with Oritani, within two (2) business days of receipt of a Notice of Superior Proposal, a written offer that the Board of Directors of Oritani determines, in good faith after consultation with its outside legal counsel and financial advisors, results in the applicable Acquisition Proposal no longer being a Superior Proposal, and (Y) the Oritani Board of Directors reasonably determines in good faith, after consultation with and having considered the advice of outside legal counsel and its financial advisor, that the failure to take such actions would be inconsistent with its fiduciary duties to Oritani’s shareholders under applicable law and that such Acquisition Proposal is a Superior Proposal and such Superior Proposal has been made and has not been withdrawn and continues to be a Superior Proposal after taking into account all adjustments to the terms of this Agreement that are committed to in writing by Valley pursuant to this Section 5.3(b).

Notwithstanding the foregoing, the changing, qualifying or modifying of the Oritani Recommendation or the making of a Oritani Subsequent Determination by the Oritani Board of Directors shall not change the approval of the Oritani Board of Directors for purposes of causing any takeover laws to be inapplicable to this Agreement and the Voting Agreements and the transactions contemplated hereby and thereby, including the Merger.

(c)    In addition to the obligations of Oritani set forth in Sections 5.3(a) and (b) of this Agreement, in the event Oritani or any of its Subsidiaries or representatives receives (i) any Acquisition Proposal or (ii) any request for non-public information or to engage in negotiations that the Oritani directors believe is reasonably likely to lead to or that contemplates an Acquisition Proposal, Oritani promptly (and in any event within two business days of receipt) shall advise

 

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Valley in writing of the existence of the matters described in this clause (i) or (ii), together with the material terms and conditions of such Acquisition Proposal or request and the identity of the person making any such Acquisition Proposal or request. Oritani shall keep Valley reasonably well informed in all material respects of the status (including after the occurrence of any material amendment or modification) of any such Acquisition Proposal or request. Without limiting any of the foregoing, Oritani shall promptly (and in any event within two business days) notify Valley in writing if it determines to begin providing non-public information or to engage in negotiations concerning an Acquisition Proposal pursuant to Sections 5.3(a) or (b) of this Agreement and shall in no event begin providing such information or engaging in such discussions or negotiations prior to providing such notice.

(d)    For purposes of this Agreement:

(i)    “Acquisition Proposal” means, other than the transactions contemplated by this Agreement, a tender or exchange offer to acquire 25% or more of the voting power in Oritani or any of its Subsidiaries, a proposal for a merger, consolidation, or other business combination involving Oritani or any of its Subsidiaries or any other proposal or offer to acquire in any manner 25% or more of the voting power in, or 25% or more of the business, assets or deposits of, Oritani or any of its Subsidiaries.

(ii)    “Superior Proposal” means an unsolicited bona fide written Acquisition Proposal (with the percentages set forth in the definition of such term changed from 25% to 50%) that the Oritani Board of Directors concludes in good faith to be more favorable from a financial point of view to its shareholders than the Merger and the other transactions contemplated hereby (including taking into account any adjustment to the terms and conditions proposed by Valley in response to such proposal pursuant to Section 5.3(b) of this Agreement or otherwise), (1) after receiving the advice of its financial advisor (which shall be a nationally recognized investment banking firm), (2) after taking into account the likelihood of consummation of such transaction on the terms set forth therein (as compared to, and with due regard for, the terms herein), and (3) after taking into account all legal (with the advice of outside counsel), financial (including the financing terms of any such proposal), regulatory and other aspects of such proposal and any other relevant factors permitted under applicable law.

(e)    Other than in connection with an Acquisition Proposal (which shall be subject to Section 5.3(a) and 5.3(b), and shall not be subject to this Section 5.3(e)), nothing in this Agreement shall prohibit or restrict Oritani’s Board of Directors from, prior to the receipt of the Oritani Shareholder Approval, effecting a Oritani Subsequent Determination if Oritani’s Board of Directors determines in good faith, after consultation with Oritani’s outside financial advisors and outside legal counsel, that the failure of Oritani’s Board of Directors to effect a Oritani Subsequent Determination would be inconsistent with its fiduciary duties under applicable law.

5.4    Current Information. During the period from the date of this Agreement to the Effective Time, Oritani will cause one or more of its designated representatives to confer on a monthly or more frequent basis with representatives of Valley regarding Oritani’s business, operations, properties, assets and financial condition and matters relating to the completion of the transactions contemplated herein. Without limiting the foregoing, Oritani shall provide Valley, on

 

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a monthly basis, with (i) financial statements, (ii) a list of securities purchased, (iii) monthly advances, and (iv) a schedule of all new loans, leases, extensions of credit, and renewal loans, leases and extensions of credit in excess of $1,000,000, or any increase by $1,000,000 or more in any customer’s aggregate credit outstanding or lease commitment (whether or not subject to prior approval under Section 5.2(a)), and provide Valley with a copy of, and the opportunity to discuss, the relevant documentation for any such loan, extension of credit, lease, or renewal upon request. Notwithstanding any other provision contained in this Agreement, neither Valley nor any Valley Subsidiary shall under any circumstance be permitted to exercise control of Oritani or any Oritani Subsidiary prior to the Effective Time. As soon as reasonably available, but in no event more than thirty-two (32) days after the end of each fiscal quarter ending after the date of this Agreement and prior to the Effective Time, Oritani will deliver to Valley the Bank’s call reports filed with the FDIC.

5.5    Access to Properties and Records; Confidentiality.

(a)    On reasonable advance notice, Oritani and the Bank shall permit Valley and its representatives, and Valley and VNB shall permit Oritani and its representatives, accompanied by an officer of the respective party, reasonable access during normal business hours to their respective properties, and shall make available to Valley and its representatives or Oritani and its representatives as the case may be, all books, papers and records relating to their respective assets, stock ownership, properties, operations, obligations and liabilities, including, but not limited to, all books of account (including the general ledger), Tax records, minute books of directors’ and shareholders’ meetings, charter documents, material contracts and agreements, filings with any regulatory authority, independent auditors’ work papers (subject to the receipt by such auditors of a standard access representation letter), litigation files, plans affecting employees, and any other business activities or prospects in which Valley and its representatives or Oritani and its representatives may have a reasonable interest. Neither party shall be required to provide access to or to disclose information where such access or disclosure would or would reasonably be expected to violate or prejudice the rights of any customer, violate the terms of any contract, jeopardize attorney-client privilege or contravene any law, rule, regulation, order or judgment. The parties will make appropriate substitute disclosure arrangements under circumstances in which the restrictions of the preceding sentence apply. Oritani acknowledges that Valley may be involved in discussions concerning potential acquisitions of banks and other entities and Valley shall not be obligated to disclose such information to Oritani except as such information is publicly disclosed by Valley.

(b)    Each party will hold any information that is confidential, proprietary or otherwise non-public in accordance with the Confidentiality Agreement.

5.6    Regulatory Matters.

(a)    For the purposes of holding the Oritani Shareholders Meeting and the Valley Shareholders Meeting (each as defined in Section 5.7) and qualifying under applicable federal and state securities laws the Valley Common Stock to be issued to Oritani shareholders in connection with the Merger, as soon as practicable, but in no event later than sixty (60) days following the date of this Agreement, the parties shall (i) jointly prepare, and Valley shall file with the SEC, a Registration Statement on Form S-4, including a prospectus and (ii) jointly prepare, and Valley shall file with the

 

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SEC, a proxy statement, satisfying all applicable requirements of applicable state and federal laws, including the Securities Act, the Exchange Act and applicable state securities laws and the rules and regulations thereunder (such proxy statement and prospectus in the form mailed by Valley and Oritani to its respective shareholders together with any and all amendments or supplements thereto, being herein referred to as the “Joint Proxy Statement-Prospectus” and the various documents to be filed by Valley under the Securities Act with the SEC to register the Valley Common Stock for sale, including the Joint Proxy Statement-Prospectus, are referred to herein as the “Registration Statement”). Prior to the filing of the Joint Proxy Statement-Prospectus and the Registration Statement, each party shall consult with the other party with respect to such filings and shall afford the other party and their representatives reasonable opportunity to comment thereon.

(b)    Each party shall furnish to the other party with such information concerning itself and its affiliates as is necessary in order to cause the Joint Proxy Statement-Prospectus and Registration Statement to comply with Section 5.6(a) hereof. Each party agrees promptly to advise the other party if at any time prior to the Effective Time, any information provided by such party in the Joint Proxy Statement-Prospectus or Registration Statement becomes incorrect or incomplete in any material respect and promptly to provide the information needed to correct such inaccuracy or omission. Each party shall promptly furnish to the other party such supplemental information as may be necessary in order to cause the Joint Proxy Statement-Prospectus or Registration Statement to comply with Section 5.6(a) hereof. The information relating to a party to be provided for inclusion or incorporation by reference in the Joint Proxy Statement-Prospectus or Registration Statement, any filing pursuant to Rule 165 or Rule 425 under the Securities Act, or in any other document filed with any other Governmental Entity in connection herewith, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading.

(c)    Valley shall as promptly as practicable make such filings, if any, as are necessary in connection with the offering of the Valley Common Stock with applicable state securities agencies and shall use all reasonable efforts to qualify the offering of such stock under applicable state securities laws at the earliest practicable date. Oritani shall promptly furnish Valley with such information regarding Oritani shareholders as Valley requires to enable it to determine what filings are required hereunder. Oritani authorizes Valley to utilize in such filings the information concerning Oritani and the Bank provided to Valley in connection with, or contained in, the Joint Proxy Statement-Prospectus. Valley shall furnish Oritani’s counsel with copies of all such filings and keep Oritani advised of the status thereof. Valley shall promptly notify Oritani of all communications, oral or written, with the SEC concerning the Registration Statement and the Joint Proxy Statement-Prospectus.

(d)    Valley shall cause the Valley Common Stock issuable pursuant to the Merger (including shares of Valley Common Stock to be reserved for issuance upon the exercise of Valley Stock Options), to be listed on NASDAQ at the Effective Time.

(e)    The parties hereto will cooperate with each other and use all reasonable efforts to prepare all necessary documentation, to effect all necessary filings and to obtain all necessary permits, consents, approvals and authorizations of all third parties and governmental bodies necessary to consummate the transactions contemplated by this Agreement as soon as possible, including, without limitation, those required by the OCC, the FRB, NASDAQ, the Department of Treasury of

 

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the State of New Jersey and the Secretary of State of the State of Delaware. The parties shall each have the right to review in advance and comment on all information relating to the other, as the case may be, which appears in any filing made with, or written material submitted to, any third party or governmental body in connection with the transactions contemplated by this Agreement. Valley and VNB shall use their best efforts to cause their applications to the OCC and the application or waiver request to the FRB to be filed within sixty (60) days of the date of this Agreement. Oritani shall cooperate with Valley to provide all information requested in writing by Valley to complete such application within ten (10) days of request from Valley. Valley shall provide to Oritani drafts of all filings and applications referred to in this Section 5.6(e) and shall give Oritani the opportunity to comment thereon prior to their filing. Notwithstanding the foregoing, nothing contained herein shall be deemed to require Valley or Oritani to take any action, or commit to take any action, or agree to any condition or restriction, in connection with obtaining the foregoing permits, consents, approvals and authorizations of governmental entities that would reasonably be expected to have a Material Adverse Effect on Valley following the merger, taken as a whole, after giving effect to the Merger (a “Materially Burdensome Regulatory Condition”). In furtherance and not in limitation of the foregoing, each of Valley and Oritani shall use its reasonable best efforts to, and cause its Subsidiaries to use reasonable best efforts to, (i) 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, and (ii) avoid or eliminate each and every impediment under any applicable law so as to enable the Closing to occur as soon as possible; provided, however, that nothing contained in this Agreement shall require Valley or Oritani to take any actions specified in this Section 5.6(e) that would reasonably be expected to constitute or result in a Materially Burdensome Regulatory Condition.

(f)    Each of the parties will promptly furnish each other with copies of written communications received by them or any of their respective Subsidiaries from, or delivered by any of the foregoing to, any Governmental Entity in respect of the transactions contemplated hereby.

(g)    Between the date of this Agreement and the Effective Time, Oritani shall cooperate with Valley, consistent with legal requirements, to prepare and assist for the prompt conversion of Oritani’s systems and procedures post-closing and other post-closing merger integration.

(h)    Oritani acknowledges that Valley is in or may be in the process of acquiring other bank holding companies, banks, financial institutions, and/or other entities and that in connection with other acquisitions, information concerning Oritani may be required to be included in the registration statements, if any, for the issuance of securities of Valley or in Valley Reports in connection with other acquisitions. Oritani agrees to provide Valley with any information, certificates, documents or other materials about Oritani as are reasonably necessary to be included in such other SEC reports or registration statements, including the Registration Statement referenced in Section 5.6(a) and any other registration statements which may be filed by Valley prior to the Effective Time. Oritani shall use its reasonable efforts to cause its attorneys and accountants to provide Valley and any underwriters for Valley with any consents, opinion letters, reports or information which are necessary to complete the registration statements and applications for any other acquisition or issuance of securities. Valley shall reimburse Oritani for all expenses reasonably incurred by Oritani related to another acquisition by Valley. Valley shall not file with the SEC any registration statement or amendment or supplement containing information regarding Oritani unless Oritani shall have consented to the disclosure contained in the filing, which consent shall not be unreasonably delayed or withheld.

 

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5.7    Approval of Shareholders.

(a)    The Oritani Board of Directors will, subject to the qualification set forth in Section 5.3(b) hereof, take all steps necessary to duly call, give notice of, convene and hold a meeting of the shareholders of Oritani (such meeting or any adjournment thereof, the “Oritani Shareholders Meeting”) for the purpose of securing the approval of the shareholders of Oritani of the Merger and this Agreement and use its commercially reasonable best efforts to obtain, as promptly as practicable, such approval. Oritani and Valley will cooperate with respect to each of the foregoing matters. Contemporaneously with the execution of this Agreement, Oritani shall cause each of the directors of Oritani in their capacity as shareholders to execute and deliver to Valley a Voting Agreement.

(b)    The Valley Board of Directors shall (i) take all steps necessary to duly call, give notice of, convene and hold a meeting of the shareholders of Valley (such meeting or any adjournment thereof, the “Valley Shareholders Meeting”) for the purpose of securing the approval of the shareholders of Valley of the issuance of shares of Valley Common Stock in connection with the Merger and this Agreement and use its commercially reasonable best efforts to obtain, as promptly as practicable, such approval and (ii) recommend to the shareholders of Valley the approval of such stock issuance. Oritani and Valley will cooperate with respect to each of the foregoing matters.

5.8    Further Assurances. Subject to the terms and conditions herein provided, each of the parties hereto agrees to use its commercially reasonable best 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 satisfy the conditions to the Closing and to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, using reasonable efforts to lift or rescind any injunction or restraining order or other order adversely affecting the ability of the parties to consummate the transactions contemplated by this Agreement and using its best efforts to prevent the breach of any representation, warranty, covenant or agreement of such party contained or referred to in this Agreement and to promptly remedy the same. In case at any time after the Effective Time any further action is necessary or desirable to carry out the purposes of this Agreement, the proper officers and directors of each party to this Agreement shall take all such necessary action. Nothing in this section shall be construed to require any party to participate in any threatened or actual legal, administrative or other proceedings (other than proceedings, actions or investigations to which it is otherwise a party or subject or threatened to be made a party or subject) in connection with the consummation of the transactions contemplated by this Agreement unless such party shall consent in advance and in writing to such participation and the other party agrees to reimburse and indemnify such party for and against any and all costs and damages related thereto.

5.9    Public Announcements. Oritani and Valley will consult with each other before issuing, and will cooperate with each other in the development and distribution of, all press releases and any other public disclosure with respect to this Agreement or any of the transactions contemplated hereby and will not issue any press release or written statement for general circulation relating to the transactions contemplated hereby or make any such public statements without the prior consent of the other party, which consent shall not be unreasonably withheld;

 

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provided, however, that a party may, without the prior consent of the other party (but after consultation with the other party), issue such press release or public statements as may be required by applicable law or the rules and regulations of any stock exchange.

5.10    Failure to Fulfill Conditions. In the event that Valley or Oritani determines that a material condition to its obligation to consummate the transactions contemplated hereby cannot be fulfilled on or prior to April 30, 2020 (the “Cutoff Date”) and that it will not waive that condition, it will promptly notify the other party. Oritani and Valley will promptly inform the other of any facts applicable to Oritani or Valley, respectively, or their respective directors or officers, that would be likely to prevent or materially delay approval of the Merger by any Governmental Entity or which would otherwise prevent or materially delay completion of the Merger.

5.11    Disclosure Delivery and Disclosure Supplements. From time to time prior to the Effective Time, each party hereto will promptly supplement or amend (by written notice to the other) its respective disclosure schedules delivered pursuant hereto with respect to any matter hereafter arising which, if existing, occurring or known at the date of this Agreement, would have been required to be set forth or described in such schedules or which is necessary to correct any information in such schedules which has been rendered materially inaccurate thereby. If the disclosure contained in any such supplement (i) relates to events occurring before the execution of this Agreement or (ii) alone or together with other supplements or amendments materially adversely affects the representation to which the amendment or supplement relates, the party receiving the amendment or supplement may determine not to accept it as a modification of the relevant representation. Notice of such determination, if made, shall be given by the receiving party to the other party not later than ten (10) days after it received the disclosure in question. If such notice is not timely given, or if the disclosure in question did not contain any matter of the nature specified in clause (i) or (ii) of the second preceding sentence, the relevant representation shall be deemed modified by the disclosure in the amendment or supplement with the same effect as though that disclosure had been included in the relevant disclosure schedule as furnished prior to execution of this Agreement.

5.12    Indemnification.

(a)    For a period of six years after the Effective Time, to the fullest extent permitted by law, Valley shall indemnify, defend and hold harmless each person who is now, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, a director or officer of Oritani or its Subsidiaries (collectively, the “Oritani Indemnitees”) against any and all claims, damages, liabilities, losses, costs, charges, expenses (including, without limitation, reasonable costs of investigation, and the reasonable fees and disbursements of legal counsel and other advisers and experts as incurred), judgments, fines, penalties and amounts paid in settlement, asserted against, incurred by or imposed upon any Oritani Indemnitee by reason of the fact that he or she is or was a director or officer of Oritani or its Subsidiaries, acted as a director or officer of a third party at the request of Oritani or its Subsidiaries or acted as a benefits plan fiduciary, in connection with, arising out of or relating to any threatened, pending or completed claim, action, suit or proceeding (whether civil, criminal, administrative or investigative) (each a “Claim” and collectively, “Claims”), including without limitation any Claim which is based upon, arises out of or in any way relates to the Merger, this Agreement, any of the transactions contemplated by this Agreement, the Oritani Indemnitee’s

 

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service as a member of the Board of Directors of Oritani or any of its Subsidiaries or any committee thereof, the events leading up to the execution of this Agreement, any statement, announcement, recommendation or solicitation made in connection therewith or related thereto and any breach of any duty in connection with any of the foregoing, in each case to the fullest extent which Oritani or any of its Subsidiaries, as applicable, would have been permitted under any applicable law and the Oritani Charter Documents had the Merger not occurred (and Valley shall also advance expenses as incurred to the fullest extent so permitted); provided, however, that all rights to indemnification in respect of any Claim asserted or made within such six year period shall continue until the final disposition of such Claim.

(b)    From and after the Effective Time, Valley shall assume and honor any obligation of Oritani immediately prior to the Effective Time with respect to the indemnification of the Oritani Indemnitees arising out of the Oritani Charter Documents of Oritani or arising out of any written indemnification agreements between Oritani and such persons disclosed in the Oritani Disclosure Schedule, as if such obligations were pursuant to a contract or arrangement between Valley and such Oritani Indemnitees.

(c)    In the event Valley or any of its successors or assigns (i) reorganizes or consolidates with or merges into or enters into another business combination transaction with any other person or entity and is not the resulting, continuing or surviving corporation or entity of such consolidation, merger or transaction, or (ii) liquidates, dissolves or transfers all or substantially all of its properties and assets to any person or entity, then, and in each such case, proper provision, if necessary, shall be made so that the successors and assigns of Valley assume the obligations set forth in this Section 5.12.

(d)    Valley shall cause Oritani’s and the Bank’s officers and directors to be covered, for a period of six years after the Effective Time, at Oritani’s option, under (i) Valley’s then current officers’ and directors’ liability insurance policy (providing substantially similar coverage to Oritani’s and the Bank’s officers and directors as such officers and directors had under Oritani’s existing policy), or (ii) an extension of Oritani’s existing officers’ and directors’ liability insurance policy or a substitute therefor, the material terms of which, including coverage and amount, are no less favorable in any material respect to covered persons than Oritani’s existing officers’ and directors’ liability insurance policy as of the date hereof. However, Valley shall only be required to insure such persons upon terms and for coverages substantially similar to Oritani’s existing officers’ and directors’ liability insurance, and if such coverage over a six year period would in the aggregate cost more than 200% of the annual premium currently paid by Oritani for such coverage, then Valley shall be required only to obtain such coverage as may be obtained by an expenditure equal to 200% of the annual premium currently paid by Oritani for such coverage.

(e)    Any Oritani Indemnitee wishing to claim indemnification under this Section 5.12 shall promptly notify Valley upon learning of any Claim, but the failure to so notify shall not relieve Valley of any liability it may have to such Oritani Indemnitee if such failure does not materially prejudice Valley.

 

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5.13    Employment and Director Matters; Other Post-Closing Items.

(a)    Except as otherwise set forth in the Oritani Disclosure Schedule, Valley and VNB hereby expressly agree to honor, effective from and after the Effective Time, each of the agreements entered into by Oritani’s executives on the date hereof and identified on the Oritani Disclosure Schedule and each of the Oritani Pension Plans, Oritani Welfare Plans and Oritani Benefit Plans as in effect as of the Effective Time, each in accordance with their respective terms.

(b)    Subject to the foregoing, as soon as possible following consummation of the Merger, Valley will decide whether to continue each of the Oritani Pension Plans and/or the Oritani Welfare Plans for the benefit of employees of the Bank and Oritani, or to have such employees become covered under a Valley welfare plan in accordance with the terms of the relevant Valley pension and/or welfare plans provided there is no gap in time in health coverage or coverage under the Valley 401(k) plan for all employees and officers of Oritani who become employed by VNB. Subject to the foregoing, within two (2) years following consummation of the Merger, Valley shall make available to all employees and officers of Oritani who become employed by VNB coverage under the benefit plans generally available to VNB’s employees and officers (including pension and health and hospitalization) on the terms and conditions available to VNB’s employees and officers in Valley or VNB medical and dental plans for Oritani employees and their dependents. No prior existing condition limitation not currently imposed by Oritani or the Bank medical or dental plans shall be imposed with respect to Valley’s or VNB’s medical and dental plans on Oritani or Bank employees. Oritani and Bank employees shall receive credit for any deductibles and co-payments paid under Oritani’s and the Bank’s existing medical and dental plans. Oritani employees will be given credit for eligibility and vesting purposes (but not for benefit accrual purposes) under Valley’s or VNB’s medical, life, vacation, sick leave, disability and other welfare plans for prior service with Oritani, and Oritani’s and the Bank’s employees will be granted credit for such prior service with Oritani, solely for purposes of eligibility and vesting under Valley’s or VNB’s 401(k) plan. No Oritani employee will be given credit for prior service under Valley’s or VNB’s Pension Plan for any purpose.

(c)    Valley and VNB will use reasonable efforts to retain Oritani and Bank employees following the Effective Time. Valley and VNB will endeavor to offer the Bank employees whose jobs are eliminated as a result of the Merger the opportunity to apply for open positions within Valley or VNB. In the event that Valley or VNB terminates or lays off a sufficient number of employees following the Effective Date to trigger a notice requirement under the Worker Adjustment and Retraining Notification Act of 1988 or any similar applicable Law (“WARN Act”) with respect to (i) Oritani and Bank employees employed during the 90-day period preceding the Effective Time, and (ii) Oritani and Bank employees employed by Valley or VNB after the Effective Time, Valley shall be solely responsible for compliance with, and any liabilities incurred pursuant to, the WARN Act. Oritani and the Bank shall cooperate in providing information reasonably requested by Valley that is necessary for Valley to prepare and distribute notices that Valley may desire to provide prior to the Effective Time under the WARN Act.

(d)    Except for Oritani and Bank employees who have individual severance or similar contractual agreement, following the consummation of the Merger and for one year thereafter, VNB shall pay severance to Oritani and Bank employees who are involuntarily terminated by Valley or VNB for reasons other than cause in an amount equal to two weeks salary for each year of service with Oritani and Bank, subject to a minimum of four weeks’ and a maximum of 26 weeks’ severance pay.

 

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(e)    Within two weeks of the date of this Agreement, Valley and VNB, with the cooperation of Oritani and the Bank, will develop, and thereafter implement and communicate to key employees of Oritani and the Bank identified as such by VNB executives together with the Chief Executive Officer and Chief Financial Officer of Oritani, a retention program, designed to retain the services of such key employees through the Effective Time and thereafter until one hundred and eighty (180) days following the Closing Date or such earlier or later time as Valley and VNB may determine consistent with their respective business needs.

(f)    Within thirty (30) days prior to the Closing Date, Oritani and the Bank shall terminate the plans and arrangements set forth on the Oritani Disclosure Schedule and the amounts set forth in such Oritani Disclosure Schedule shall be payable to the participants of such plans.

(g)    The Oritani Employee Stock Ownership Plan (the “ESOP”) and any related agreement shall be terminated on the Closing Date (all shares held by the ESOP shall be converted into the right to receive the Merger Consideration), subject to the preparation of a termination amendment setting forth the terms of termination and allocation and distribution of the ESOP assets. Any outstanding ESOP indebtedness shall be repaid from unallocated Oritani Common Stock held in the ESOP’s suspense account which shall be converted into Valley Common Stock at the Exchange Ratio and repurchased by Valley. The balance of the unallocated shares of Oritani Common Stock and any other assets remaining unallocated shall be allocated to ESOP participants (subject to the receipt of a favorable determination letter from the IRS as provided for below), as provided for in the ESOP (as amended for termination or unless otherwise required by applicable law). Prior to the Effective Time, Oritani, and following the Effective Time, Valley, shall use their commercially reasonable efforts in good faith to obtain such favorable determination letter (including, but not limited to, making such changes to the ESOP and the proposed allocations as may be requested by the IRS as a condition to its issuance of a favorable determination letter). Oritani, and following the Effective Time, Valley, will adopt such amendments to the ESOP as may be reasonably required by the IRS as a condition to granting such favorable determination letter on termination. Neither Oritani nor, following the Effective Time, Valley, shall make any distribution from the ESOP to any Oritani Employees who continue employment with Valley, except as may be required by applicable law or the terms of the ESOP, until receipt of such favorable determination letter. In the case of a conflict between the terms of this Section 5.13(g) and the terms of the ESOP, the terms of the ESOP shall control; however, in the event of any such conflict, Oritani before the Merger, and Valley after the Merger, shall use their commercially reasonable efforts to cause the ESOP to be amended to conform to the requirements of this Section 5.13(g).

5.14    Tax-Free Reorganization Treatment.

(a)    The parties intend that the Merger qualify as a reorganization within the meaning of Section 368(a) of the Code and that this Agreement constitute a “plan of reorganization” within the meaning of Section 1.368-2(g) of the income Tax regulations promulgated under the Code. From and after the date of this Agreement and until the Effective Time, each of Oritani and Valley shall use its commercially reasonable efforts to cause the Merger to qualify as a reorganization within the meaning of Section 368(a) of the Code, and will not knowingly take any action, cause any action to be taken, fail to take any action or cause any action to fail to be taken which action or failure to act could prevent the Merger from qualifying as a

 

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reorganization within the meaning of Section 368(a) of the Code. Following the Effective Time, neither Valley nor any affiliate shall knowingly take any action, cause any action to be taken, fail to take any action, or cause any action to fail to be taken, which action or failure to act could prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code.

(b)    As of the date hereof, Oritani does not know of any reason why it would not be able to deliver to counsel to Valley and counsel to Oritani certificates substantially in compliance with IRS published advance ruling guidelines, with reasonable or customary exceptions and modifications thereto (the “IRS Guidelines”), to enable counsel to Valley and counsel to Oritani to deliver the legal opinions contemplated by Section 6.1(d), and Oritani hereby agrees to deliver such certificates effective as of the date of such opinions to counsel to Valley and counsel to Oritani.

(c)    As of the date hereof, Valley does not know of any reason why it would not be able to deliver to counsel to Valley and counsel to Oritani certificates substantially in compliance with the IRS Guidelines, with reasonable or customary exceptions and modifications thereto, to enable counsel to Valley and counsel to Oritani to deliver the legal opinions contemplated by Section 6.1(d), and Valley hereby agrees to deliver such certificates effective as of the date of such opinions to counsel to Valley and counsel to Oritani.

5.15    Bank Policies and Bank Mergers. Notwithstanding that Oritani believes that it has established all reserves and taken all provisions for possible loan losses required by GAAP and applicable laws, rules and regulations, Oritani recognizes that Valley may have adopted different loan, accrual and reserve policies (including loan classifications and levels of reserves for possible loan losses). From and after the date of this Agreement to the Effective Time and in order to formulate the plan of integration for the Bank Merger, Oritani and Valley shall consult and cooperate with each other with respect to (i) conforming to the extent appropriate, based upon such consultation, Oritani’s loan, accrual and reserve policies and Oritani’s other policies and procedures regarding applicable regulatory matters, including without limitation FRB, Bank Secrecy Act and FDIC matters, to those policies of Valley as Valley may reasonably identify to Oritani from time to time, (ii) conforming, based upon such consultation, the composition of the investment portfolio and overall asset/liability management position of Oritani and the Bank to the extent appropriate, and (iii) developing a plan for the conversion of Oritani’s systems and processes to those of Valley’s so that such conversion can be implemented as soon as practicable following the Effective Time; provided that any required change in Oritani’s practices in connection with the matters described above need not be effected (A) more than five days prior to the Effective Time and (B) unless and until all necessary regulatory, governmental and shareholder approvals and consents have been received, all statutory waiting periods in respect thereof have expired and Valley agrees in writing that all conditions precedent to the Closing have occurred (other than the delivery of certificates, opinions and other instruments and documents to be delivered at the Closing). No accrual or reserve made by Oritani or any Oritani Subsidiary pursuant to this subsection, or any litigation or regulatory proceeding arising out of any such accrual or reserve, shall constitute or be deemed to be a breach or violation of any representation, warranty, covenant, condition or other provision of this Agreement or to constitute a termination event within the meaning of Section 7.1(e) or Section 7.1(f) hereof.

 

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5.16    Section 16 Matters. Prior to the Effective Time, the parties will each take such steps as may be reasonably necessary or appropriate to cause any disposition of shares of Oritani Common Stock or conversion of any derivative securities in respect of shares of Oritani Common Stock in connection with the consummation of the transactions contemplated by this Agreement to be exempt under Section 16(b) of the Exchange Act.

5.17    Shareholder Litigation. Oritani shall give Valley the opportunity to participate at its own expense in the defense or settlement of any shareholder litigation against Oritani and/or its directors or other affiliates relating to the transactions contemplated by this Agreement, and no such settlement shall be agreed to without Valley’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed).

5.18    Transaction Expenses of Oritani.

(a)    For planning purposes, Oritani shall, within 30 days from the date hereof, provide Valley with its estimated budget of transaction-related expenses reasonably anticipated to be payable by Oritani in connection with this transaction based on facts and circumstances currently known, including the fees and expenses of counsel, accountants, investment bankers and other professionals. Oritani shall promptly notify Valley if or when it determines that it will expect to exceed its budget. Prior to signing this Agreement, Oritani has disclosed to Valley the method by which the fees of its investment bankers, accountants and counsel in connection with this transaction are to be determined, and has disclosed to Valley the expected fees of KBW and Oritani’s accountants and counsel in connection with this transaction.

(b)    Promptly, but in any event within 30 days after the execution of this Agreement, Oritani shall ask all of its attorneys and other professionals to render current and correct invoices for all unbilled time and disbursements. Oritani shall accrue and/or pay all of such amounts as soon as possible.

(c)    Oritani shall cause its professionals to render monthly invoices within 30 days after the end of each month. Oritani shall notify Valley monthly of all out-of-pocket expenses which Oritani has incurred in connection with this transaction.

(d)    Valley, in reasonable consultation with Oritani, shall make all arrangements with respect to the printing and mailing of the Proxy Statement-Prospectus.

5.19    Representation on Valley Board and VNB Board. Prior to the Closing, the Board of Directors of Valley and the Board of Directors of VNB each shall increase by one (1) the number of directors constituting the entire Boards of Directors of Valley and VNB, respectively, effective as of and contingent upon the occurrence of the Effective Time, and shall duly appoint Kevin J. Lynch, or, if Kevin J. Lynch is unwilling or unable to serve, another designee to be selected by the Board of Directors of Valley from the current Oritani Board of Directors (the “Director Designee”), to become a director of Valley and VNB, effective as of and contingent upon the occurrence of the Effective Time. At a minimum, Valley shall nominate and recommend Kevin J. Lynch or the Director Designee for election by Valley shareholders at Valley’s 2020 annual shareholder meeting and Valley, as sole shareholder of VNB, shall appoint or elect Kevin J. Lynch, or the Director Designee, to the board of directors of VNB for the year ended December 31, 2020. Kevin J. Lynch or the Director Designee shall be subject to Valley’s customary

 

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background screening and evaluation procedures for potential directors and must meet all criteria set forth in Valley’s governance principles with respect to qualifications for directors and shall qualify as an independent director under NASDAQ rules.

ARTICLE VI. - CLOSING CONDITIONS

6.1    Conditions of Each Partys Obligations Under this Agreement. The respective obligations of each party under this Agreement to consummate the Merger shall be subject to the satisfaction, or, where permissible under applicable law, waiver at or prior to the Effective Time of the following conditions:

(a)    Approval of Shareholders. This Agreement and the transactions contemplated hereby shall have been duly adopted and approved by the requisite vote of the shareholders of Oritani. The issuance of Valley Common Stock in connection with the Merger shall have been approved by the requisite vote of the shareholders of Valley.

(b)    Regulatory Approvals. All regulatory or governmental approvals and consents (including without limitation any required approval of the OCC and any approval or waiver required by the FRB) required to consummate the transactions contemplated hereby shall have been obtained. All conditions required to be satisfied prior to the Effective Time by the terms of such approvals and consents shall have been satisfied and all statutory waiting periods in respect thereof shall have expired. Valley and VNB and Oritani and the Bank shall have taken all necessary action to consummate the Bank Merger immediately after the Effective Time.

(c)    Suits and Proceedings. No order shall be outstanding against a party or its Subsidiaries or a third party that would have the effect of preventing completion of the Merger or the Bank Merger; and no suit, action or other proceeding shall be pending or threatened by any Governmental Entity seeking to restrain or prohibit the Merger or the Bank Merger.

(d)    Tax Opinions. Valley shall have received a written opinion from Day Pitney LLP, counsel to Valley, and Oritani shall have received a written opinion from Luse Gorman P.C., counsel to Oritani, each dated as of the Closing Date, based on the facts, representations, assumptions and exclusions set forth or described in each such opinion, and in form and substance reasonably satisfactory to Valley and Oritani, to the effect that (i) the Merger will constitute a “reorganization” within the meaning of Section 368(a) of the Code; (ii) Oritani and Valley will each be a party to such reorganization within the meaning of Section 368(b) of the Code; and (iii) no gain or loss will be recognized by holders of Oritani Common Stock upon the receipt of shares of Valley Common Stock in exchange for their shares of Oritani Common Stock, except to the extent of any cash received. Such counsel shall be entitled to rely upon representation letters from each of Valley and Oritani, in each case, in form and substance as reasonably requested by such counsel and reasonably satisfactory to such counsel. Such representation letters shall be dated as of the date of such opinion.

(e)    NASDAQ Listing. The Valley Common Stock to be issued in connection with the Merger (including shares of Valley Common Stock to be reserved for issuance upon exercise of Valley Stock Options) shall have been approved for listing on NASDAQ.

 

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(f)    Registration Statement. The Registration Statement shall have become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement shall have been issued and be in effect and no proceedings for that purpose shall have been initiated by the SEC and not withdrawn.

6.2    Conditions to the Obligations of Valley Under this Agreement. The obligations of Valley under this Agreement to consummate the Merger shall be further subject to the satisfaction or waiver, at or prior to the Effective Time, of the following conditions:

(a)    Representations and Warranties; Performance of Obligations of Oritani. Each of the representations and warranties of Oritani contained in this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties expressly relate to an earlier date, in which case as of such earlier date), except for inaccuracies of representations and warranties which, individually or in the aggregate, have not had a Material Adverse Effect on Oritani (it being understood that, for purposes of determining the accuracy of such representations and warranties, all materiality and “Material Adverse Effect” qualifications and exceptions contained in such representations and warranties shall be disregarded), provided, however, that Oritani’s representations, warranties and covenants contained in this Agreement shall not be deemed to be untrue or breached for any purpose in this Agreement as a result of effects arising solely from actions taken in compliance with a written request of Valley. Oritani shall have performed in all material respects the agreements, covenants and obligations necessary to be performed by it prior to the Closing Date.

(b)    Certificates. Oritani shall have furnished Valley with such certificates of its officers or other documents to evidence fulfillment of the conditions set forth in this Section 6.2 as Valley may reasonably request.

6.3    Conditions to the Obligations of Oritani Under this Agreement. The obligations of Oritani under this Agreement to consummate the Merger shall be further subject to the satisfaction or waiver, at or prior to the Effective Time, of the following conditions:

(a)    Representations and Warranties; Performance of Obligations of Valley. Each of the representations and warranties of Valley contained in this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties expressly relate to an earlier date, in which case as of such earlier date), except for inaccuracies of representations and warranties which, individually or in the aggregate, have not had a Material Adverse Effect on Valley (it being understood that, for purposes of determining the accuracy of such representations and warranties, all materiality and “Material Adverse Effect” qualifications and exceptions contained in such representations and warranties shall be disregarded). Valley shall have performed in all material respects the agreements, covenants and obligations necessary to be performed by it prior to the Closing Date.

(b)    Certificates. Valley shall have furnished Oritani with such certificates of its officers or other documents to evidence fulfillment of the conditions set forth in this Section 6.3 as Oritani may reasonably request.

 

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ARTICLE VII. - TERMINATION

7.1    Termination. This Agreement may be terminated at any time prior to the Effective Time, whether before or after approval of the matters presented in connection with the Merger by the shareholders of Oritani:

(a)    by mutual consent of Oritani and Valley;

(b)    by either Valley or Oritani upon written notice to the other party if the approval of any Governmental Entity required for consummation of the Merger and the other transactions contemplated by this Agreement is denied by final, non-appealable action of such Governmental Entity; provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to any party whose failure to comply with any provision of this Agreement has been the cause of, or materially contributed to, such action;

(c)    by either Valley or Oritani, if the Merger shall not have been consummated on or before the Cutoff Date (or such later date as shall have been agreed to in writing by Valley and Oritani), provided, however, that no party may terminate this Agreement pursuant to this Section 7.1(c) if the failure of the Closing to have occurred on or before the Cutoff Date was due to such party’s material breach of any representation, warranty, covenant or agreement contained herein;

(d)    by either Valley or Oritani if (i) the approval of the shareholders of Oritani required for the consummation of the Merger shall not have been obtained by reason of the failure to obtain the required vote at a duly held meeting of such shareholders or at any adjournment or postponement thereof, or (ii) the approval of the shareholders of Valley required for the consummation of the Merger shall not have been obtained by reason of the failure to obtain the required vote at a duly held meeting of such shareholders or at any adjournment or postponement thereof;

(e)    by either Valley or Oritani (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 representations or warranties set forth in this Agreement on the part of the other party, which breach is not cured within thirty (30) days following written notice to the party committing such breach, or which breach, by its nature, cannot be cured prior to the Cutoff Date, and which breach of a representation or warranty, would, individually or in the aggregate with other breaches, (i) result in a Material Adverse Effect with respect to the party committing such breach, or (ii) result in one or more of the conditions set forth in Sections 6.1, 6.2 (in case of a termination by Valley) or 6.3 (in case of termination by Oritani) not to be satisfied or not capable of being satisfied by the Cutoff Date;

(f)    by either Valley or Oritani (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 set forth in this Agreement on the part of the other party, which breach is not cured within thirty (30) days following written notice to the party committing such breach, or which breach, by its nature, cannot be cured prior to the Cutoff Date, and which breach of a representation, warranty or covenant, would, individually

 

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or in the aggregate with other breaches, (i) result in a Material Adverse Effect with respect to the party committing such breach, or (ii) result in one or more of the conditions set forth in Sections 6.1, 6.2 (in case of a termination by Valley) or 6.3 (in case of termination by Oritani) not to be satisfied or not capable of being satisfied by the Cutoff Date;

(g)    by the Board of Directors of Valley if, (I) prior to receipt of the Oritani Shareholder Approval, Oritani or the Oritani Board of Directors (or any committee thereof) has (A) effected a Oritani Subsequent Determination or approved, adopted, endorsed or recommended any Acquisition Proposal, (B) failed to recommend the Merger and the approval of this Agreement by the shareholders of Oritani or failed to publicly re-affirm its recommendation of the Merger within five days after receipt from Valley of a written request to do so, (C) breached the terms of Section 5.3 in any material respect adverse to Valley, or (D) in response to the commencement (other than by Valley or a Subsidiary thereof) of a tender offer or exchange offer for 10% or more of the outstanding shares of Oritani Common Stock, recommended that the shareholders of Oritani tender their shares in such tender or exchange offer or otherwise failed to recommend that such shareholders reject such tender offer or exchange offer promptly upon written request of Valley, or (II) any other event occurs that gives rise to the payment of a Termination Fee (as hereafter defined) and Termination Expenses (as hereafter defined) pursuant to Section 7.3 of this Agreement;

(h)    by Oritani if, prior to receiving Oritani Shareholder Approval, (i) Oritani has received a Superior Proposal, and in accordance with Section 5.3 of this Agreement, has entered into an acquisition agreement with respect to the Superior Proposal, or (ii) if Oritani’s Board of Directors determines in good faith, after consultation with Oritani’s outside financial advisors and outside legal counsel, that the failure of Oritani’s Board of Directors to effect a Oritani Subsequent Determination would be inconsistent with its fiduciary duties under applicable law, but only if prior to terminating this Agreement, Oritani (A) pays to Valley the Termination Fee and Termination Expenses and (B) delivers to Valley a release signed by the parties to such acquisition agreement and any entity that controls such parties, which release shall irrevocably waive any right the releasing parties may have to challenge the payment to Valley of the Termination Fee and the payment to Valley of the Termination Expenses;

(i)    by Valley if one or more of the conditions set forth in Sections 6.1 and 6.2 are not satisfied and are not capable of being satisfied by the Cutoff Date;

(j)    by Oritani if one or more of the conditions set forth in Sections 6.1 and 6.3 are not satisfied and are not capable of being satisfied by the Cutoff Date; or

(k)    by Oritani, if the board of directors of Oritani so determines by a majority vote of its members, in the event that, as of the Determination Date, both of the following conditions are satisfied:

(i)    the Average Determination Price shall be less than 80% of the Valley Starting Price; and

(ii)    (A) the number obtained by dividing the Average Determination Price by the Valley Starting Price (such number, the “Valley Ratio”) is less than (B) the number obtained by dividing the Final Index Price by the Initial Index Price and subtracting 0.20 from such quotient (such number, the “Index Ratio”).

 

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If Oritani elects to exercise its termination right pursuant to this Section 7.1(k), it shall give written notice to Valley not later than the end of the third business day next following the Determination Date. During the five business day period commencing with its receipt of such notice, Valley may, at its option, increase the Exchange Ratio to a number equal to the lesser of (x) a quotient (rounded to the nearest one-ten-thousandth), the numerator of which is equal to the product of the Exchange Ratio (as then in effect) and the Index Ratio, and the denominator of which is equal to the Valley Ratio, or (y) a quotient (rounded to the nearest one-ten-thousandth), the numerator of which is the product of the Exchange Ratio (as then in effect), the Valley Starting Price and 0.80, and the denominator of which is the Average Determination Price. If Valley makes an election contemplated by the preceding sentence within such five (5) business day period, it shall give prompt written notice to Oritani of such election and the revised Exchange Ratio and no termination shall have occurred pursuant to this Section 7.1(k) and this Agreement shall remain in effect in accordance with its terms (except that the Exchange Ratio shall be modified), and any references in this Agreement to “Exchange Ratio” shall thereafter be deemed to refer to the Exchange Ratio as adjusted pursuant to this Section 7.1(k).

If the outstanding shares of Valley Common Stock or any company belonging to the Index shall be changed into a different number of shares by reason of any stock dividend, reclassification, recapitalization, split-up, combination, exchange of shares, or similar transaction between the date of the Agreement and the Determination Date, the prices for the common stock of such company will be appropriately adjusted.

For purposes of this Section 7.1(k), the following terms shall have the meanings set forth below:

Average Determination Price” of the Valley Common Stock shall mean the VWAP of the Valley Common Stock for the ten (10) trading day period ending on the trading date immediately preceding the Determination Date, rounded to the nearest one-tenth of a cent.

Determination Date” means the date on which the last required approval of a Governmental Entity is obtained with respect to the Merger, without regard to any requisite waiting period.

Final Index Price” means the average, rounded to the nearest one-tenth of a cent, of the closing prices of the Index for the same trading days used in calculating the Average Determination Price.

Index” means the KBW NASDAQ Regional Banking Index (the “KRX”) or, if such Index is not available, such substitute or similar index as substantially replicates the KRX.

Initial Index Price” means the average, rounded to the nearest one-tenth of a cent, of the closing prices of the Index for the same trading days used in calculating the Valley Starting Price.

 

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Valley Starting Price” shall mean the VWAP of the Valley Common Stock for the ten trading day period ending on the day immediately preceding the date of this Agreement, rounded to the nearest one-tenth of a cent.

7.2    Effect of Termination. In the event of termination of this Agreement by either Valley or Oritani as provided in Section 7.1, this Agreement shall forthwith become void and have no effect except that (i) Sections 5.5(b), 5.9, Articles VII and VIII and the Confidentiality Agreement shall survive any termination of this Agreement, and (ii) notwithstanding anything to the contrary contained in this Agreement, in the event that either of the parties shall willfully default in its obligations hereunder, the non-defaulting party may pursue any remedy available at law or in equity to enforce its rights and shall be paid by the willfully defaulting party for all damages, costs and expenses, including without limitation legal, accounting, investment banking and printing expenses, incurred or suffered by the non-defaulting party in connection herewith or in the enforcement of its rights hereunder.

7.3    Termination Fee; Expenses.

(a)     In the event that at any time after the date of this Agreement Valley or Oritani shall terminate this Agreement pursuant to Section 7.1(e) or 7.1(f), then the breaching party shall pay to the non-breaching party on the date of such termination, by wire transfer of immediately available funds, an amount equal to the out-of-pocket expenses incurred by Valley in connection with the transactions contemplated by this Agreement (as itemized by the non-breaching party), up to $1.8 million (the “Termination Expenses”).

(b)    In the event that:

(i)    (A) an Acquisition Proposal (whether or not conditional) or intention to make an Acquisition Proposal (whether or not conditional) shall have been made directly to Oritani’s shareholders or otherwise publicly disclosed or otherwise communicated or made known to senior management of Oritani or Oritani Board of Directors and (B) this Agreement is thereafter terminated (x) by Oritani or Valley pursuant to Section 7.1(c) or Section 7.1(d)(i) (but only if, in the case of a termination pursuant to Section 7.1(d)(i), the Registration Statement shall have been declared effective no later than sixty (60) days prior to the Cutoff Date), or (y) by Valley pursuant to Section 7.1(e) or Section 7.1(f), then, (I) Oritani shall pay to Valley, immediately upon such termination, by wire transfer of immediately available funds, the Termination Expenses, and, (II) if within 12 months after such termination, Oritani or any of its Subsidiaries enters into a definitive agreement with respect to, or consummates a transaction contemplated by, any Acquisition Proposal (which, in each case, need not be the same Acquisition Proposal that shall have been made, publicly disclosed or communicated prior to termination hereof), then Oritani shall pay Valley, on the earlier of the date of such execution or consummation, by wire transfer of immediately available funds, a fee of $28 million (the “Termination Fee”); or

(ii)    this Agreement is terminated by Valley pursuant to Section 7.1(g) or by Oritani pursuant to Section 7.1(h), then Oritani shall pay Valley, immediately upon such termination, by wire transfer of immediately available funds, the Termination Fee and Termination Expenses.

 

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(iii)    Notwithstanding anything to the contrary set forth in this Agreement, if Oritani pays or causes to be paid to Valley the Termination Fee, neither Oritani nor the Bank (or any successor in interest of Oritani or the Bank) nor any of their officers, directors or affiliates will have any further obligations or liabilities to Valley or VNB with respect to this Agreement or the transactions contemplated by this Agreement and, except in the case of fraud or willful misconduct, payment of the Termination Fee shall be the sole and exclusive remedy of Valley in the event of termination of this Agreement on the bases specified in Sections 7.3(b)(i) and 7.3(b)(ii) above.

For purposes of Section 7.3(b)(i), the term “Acquisition Proposal” shall have the meaning ascribed thereto in Section 5.3(d)(i) except that references in Section 5.3(d)(i) to “25%” shall be replaced by “50%”.

ARTICLE VIII. - MISCELLANEOUS

8.1    Expenses. Except as expressly set forth in Article VII, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby (including legal, accounting and investment banking fees and expenses) shall be borne by the party incurring such costs and expenses.

8.2    Notices. All notices or other communications which are required or permitted hereunder shall be in writing and sufficient if delivered personally or sent by electronic mail with confirming copy sent the same day by registered or certified mail, postage prepaid, as follows:

(a)        If to Valley, to:

Valley National Bancorp

1455 Valley Road

Wayne, NJ 07470

Attn.: Ira Robbins, President and CEO

E-mail: [email protected]

Copy to:

Valley National Bancorp

1455 Valley Road

Wayne, NJ 07470

Attn.: Ronald H. Janis, Esq., Senior Executive Vice President

and General Counsel

E-mail: [email protected]

 

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and to:

Day Pitney LLP

1 Jefferson Road

Parsippany, NJ 07054

Attn.: Michael T. Rave, Esq.

E-mail: [email protected]

(b)        If to Oritani, to:

Oritani Financial Corp

370 Pascack Road

Township of Washington, NJ 07676

Attn: Kevin J. Lynch, Chairman, President and CEO

E-mail:

Copy to:

Luse Gorman, PC

5335 Wisconsin Avenue, N.W.

Suite 780

Washington, DC 20015

Attn: John Gorman, Esq.

E-mail: [email protected]

or such other addresses as shall be furnished in writing by any party, and any such notice or communications shall be deemed to have been given as of the date so delivered or mailed.

8.3    Parties in Interest. This Agreement shall be binding upon and shall inure to the benefit of Valley and Oritani, and their respective successors. Nothing in this Agreement is intended to confer, expressly or by implication, upon any other person any rights or remedies under or by reason of this Agreement, except for the rights conferred upon Oritani Indemnitees pursuant to Section 5.12 hereof.

8.4    Entire Agreement. This Agreement, the Oritani Disclosure Schedule, the Valley Disclosure Schedule and the other documents, agreements and instruments executed and delivered pursuant to or in connection with this Agreement, contain the entire agreement among the parties hereto with respect to the transactions contemplated by this Agreement and supersede all prior negotiations, arrangements or understandings, written or oral, with respect thereto, other than the Confidentiality Agreement, which will survive the execution and delivery of this Agreement.

8.5    No Third Party Beneficiaries.

(a)    Nothing in this Agreement, express or implied, is intended to or shall confer upon any person other than Valley and Oritani any legal or equitable right, benefit or remedy of any nature under or by reason of this Agreement. 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. In some instances, the representations and warranties in this Agreement may represent an allocation among the parties hereto of 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.

 

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(b)    Notwithstanding the foregoing clause, following the Effective Time (but not unless and until the Effective Time occurs), the provisions of Section 5.12 shall be enforceable by each Oritani Indemnitee described therein.

8.6    Severability. If any provision of this Agreement or the application thereof to any person (including the officers and directors of Oritani or Valley) or circumstance is determined by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions, or the application of such provision to persons or circumstances other than those as to which it has been held invalid or unenforceable, will remain in full force and effect and will in no way be affected, impaired or invalidated thereby, so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party hereto. Upon such determination, the parties hereto will negotiate in good faith in an effort to agree upon a suitable and equitable substitute provision to effect the original intent of the parties hereto.

8.7    Counterparts; PDF Signatures. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and each of which shall be deemed an original. This Agreement may be executed and accepted by portable data file (pdf) signature and any such signature shall be of the same force and effect as an original signature.

8.8    Governing Law; Jurisdiction. This Agreement shall be governed by the laws of the State of New Jersey, without giving effect to the principles of conflicts of laws thereof. Any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby or thereby shall be brought exclusively in the United States District Court for the District of New Jersey or any New Jersey state court sitting in Passaic County, and each of the parties hereby consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocable waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding which is brought in any such court has been brought in an inconvenient forum. The consent to jurisdiction set forth in this Section 8.8 shall not constitute a general consent to service of process in the State of New Jersey and shall have no effect for any purpose except as provided in this Section 8.8. The parties hereto agree that final judgment in any suit, action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law.

8.9    Descriptive Headings. The descriptive headings of this Agreement are for convenience only and shall not control or affect the meaning or construction of any provision of this Agreement.

8.10    Survival. All representations, warranties and agreements and covenants shall terminate as of the Effective Time except for those covenants and agreements included herein which by their terms apply in whole or in part after the Effective Time. The provisions of Section 5.5(b), Articles VII and VIII and the Confidentiality Agreement, shall survive the termination of this Agreement.

 

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[Signature Page Follows]

 

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IN WITNESS WHEREOF, Valley and Oritani have caused this Agreement to be executed by their duly authorized officers as of the day and year first above written.

 

VALLEY NATIONAL BANCORP
By:  

/s/ Ira Robbins                                         

Name:   Ira Robbins
Title:   President and CEO
ORITANI FINANCIAL CORP.
By:  

/s/ Kevin J. Lynch                                         

Name:   Kevin J. Lynch
Title:   President and CEO

 

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Section 3: EX-10.1 (EX-10.1)

EX-10.1

Exhibit 10.1

Execution Version

VOTING AGREEMENT

This Voting Agreement (this “Agreement”) is dated as of June 25, 2019, among Valley National Bancorp, a New Jersey corporation and registered bank holding company (“Valley”), and the shareholder of Oritani Financial Corp., a Delaware corporation and registered savings and loan holding company (“Oritani”), executing this Agreement on the signature page hereto (the “Shareholder”).

RECITALS

A.    Concurrently with the execution of this Agreement, Valley and Oritani have entered into an Agreement and Plan of Merger (the “Merger Agreement”) which provides, among other things, for the merger (the “Merger”) of Oritani with and into Valley upon the terms and subject to the conditions set forth therein.

B.    As of the date hereof, the Shareholder is the record or Beneficial Owner (as defined below) of that number of Oritani Common Shares (as defined below) set forth below the Shareholder’s name on the signature page hereto.

C.    As a condition to Valley’s willingness to enter into and perform its obligations under the Merger Agreement, the Shareholder has agreed to enter into this Agreement.

NOW THEREFORE, the parties hereto agree as follows:

I.    CERTAIN DEFINITIONS

1.1.    Capitalized Terms. Capitalized terms used in this Agreement and not defined herein have the meanings ascribed to such terms in the Merger Agreement.

1.2.    Other Definitions. For the purposes of this Agreement:

Oritani Common Share” means a share of common stock, par value $0.01 per share, of Oritani, including for purposes of this Agreement all shares or other voting securities into which any Oritani Common Share may be reclassified, sub-divided, consolidated or converted and any rights and benefits arising therefrom (including any dividends or distributions of securities which may be declared in respect of Oritani Common Shares).

Beneficial Owner” or “Beneficial Ownership” with respect to any securities means having “beneficial ownership” of such securities (as determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as amended).

Transfer” means, with respect to a security, the sale, grant, assignment, transfer, pledge, hypothecation, encumbrance, constructive sale, or other disposition of such security or the Beneficial Ownership thereof (including by operation of law), or the entry into of any contract, agreement or other obligation to effect any of the foregoing, including, for purposes of this Agreement, the transfer or sharing of any voting power of such security.


II.    SUPPORT OBLIGATIONS OF THE SHAREHOLDER

2.1.    Agreement to Vote. The Shareholder irrevocably and unconditionally agrees that from and after the date hereof, at the Oritani Shareholders Meeting (whether annual or special, and at each adjourned or postponed meeting), the Shareholder will (x) appear at each such meeting or otherwise cause all of its Owned Shares, as hereinafter defined, to be counted as present thereat for purposes of calculating a quorum, and respond to each request by Oritani for written consent, if any, and (y) vote (or consent), or cause to be voted (or validly execute and return and cause consent to be granted with respect to), all of the Shareholder’s Oritani Common Shares Beneficially Owned by the Shareholder, and which the Shareholder has the power to vote or direct the voting of, as of the applicable record date (including any Oritani Common Shares that the Shareholder may acquire after the date hereof, the “Owned Shares”) and all other voting securities of or equity interests in Oritani: (i) in favor of the adoption of the Merger Agreement (whether or not recommended by the Board of Directors of Oritani), and (ii) against any action, agreement, transaction or proposal that (A) is made in opposition to, or in competition or inconsistent with, the Merger or the Merger Agreement, (B) relates to an Acquisition Proposal or Superior Proposal, or (C) could otherwise prevent, impede or delay the consummation of the Merger or the other transactions contemplated by the Merger Agreement.

2.2.    No Solicitation. The Shareholder agrees that it will comply with Section 5.3 of the Merger Agreement, which Section is incorporated by reference herein. The foregoing shall not restrict or limit the ability of any Person who is a director of Oritani from exercising the Shareholder’s fiduciary duties or to take any action in his or her capacity as a director of Oritani.

2.3.    Restrictions on Transfer. Except as otherwise agreed to by Valley, the Shareholder agrees that, from and after the date hereof, to not (a) tender into any tender or exchange offer or otherwise directly or indirectly Transfer any Owned Shares (or any rights, options or warrants to acquire Oritani Common Shares), or (b) grant any proxies with respect to the Shareholder’s Owned Shares, deposit the Shareholder’s Owned Shares into a voting trust, enter into a voting agreement with respect to any of the Shareholder’s Owned Shares or otherwise restrict the ability of the Shareholder to freely exercise all voting rights with respect thereto, provided, however, that the Shareholder shall be permitted to Transfer Owned Shares to any person (a “Transferee”) in the case of (i) any gift or similar estate planning transaction if, and only if, such Transferee agrees in writing to be bound by the terms of this Agreement and the Shareholder provides at least two (2) days prior written notice (which shall include the written consent of the Transferee agreeing to be bound by the terms of this Agreement) to Valley, (ii) a bequeath of Shareholder’s Owned Shares by will or operation of law, in which case this Agreement shall bind the transferee, or (iii) a surrender of Shareholder’s Owned Shares to Oritani in connection with the vesting, settlement or exercise of Oritani equity awards to satisfy any withholding for the payment of taxes incurred in connection with such vesting, settlement or exercise, or, in respect of Oritani equity awards, the exercise price thereon. Any action attempted to be taken in violation of the preceding sentence will be null and void.

2.4.    Valley Common Stock. The Shareholder agrees that, during the period beginning on the date hereof and ending on the earlier of the Closing Date and the termination of the Merger Agreement, the Shareholder will not, and will not authorize or knowingly permit any of its affiliates to or solicit or encourage any other person to, purchase, sell, contract to purchase, contract

 

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to sell, pledge, hedge, grant any option to purchase, make any short sale, Transfer or otherwise dispose of or acquire any Valley Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive Valley Common Stock, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has Beneficial Ownership and the power to dispose or direct the disposition thereof.

III.     GENERAL

3.1.    Governing Law. This Agreement and any controversies arising with respect hereto shall be construed in accordance with and governed by the laws of the State of New Jersey (without regard to principles of conflict of laws that would apply the law of another jurisdiction).

3.2.    Amendments. This Agreement may not be amended except by written agreement signed by Valley and by the Shareholder.

3.3.    Entire Agreement. This Agreement constitutes the entire agreement and supersedes all other prior agreements, understandings, representations and warranties, both written and oral, among the parties to this Agreement with respect to the subject matter of this Agreement.

3.4.    Counterparts; Execution. This Agreement may be executed in any number of counterparts, all of which are one and the same agreement and each of which shall be deemed an original. This Agreement may be executed and accepted by portable data file (pdf) signature and any such signature shall be of the same force and effect as an original signature.

3.5.    Effectiveness and Termination. This Agreement will become effective when Valley has received counterparts signed by the Shareholder and itself and shall terminate on the date that the Merger is approved by Oritani shareholders. In the event the Merger Agreement is terminated in accordance with its terms, this Agreement shall automatically terminate and be of no further force or effect. Upon any such termination, except for any rights any party may have in respect of any breach by any other party of its or his obligations hereunder, none of the parties hereto shall have any further obligation or liability hereunder.

[The Remainder of this Page is Intentionally Left Blank.]

 

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IN WITNESS WHEREOF, each party hereto has caused this Agreement to be signed as of the date first above written.

 

VALLEY NATIONAL BANCORP
By:  

                                                              

Name:  
Title:  

(Shareholder signature page follows)

 

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  SHAREHOLDER
 

Shareholder:                                                                    

 

Signature:                                                                        

 

Title, if applicable:                                                          

 

Owned Shares:                                                               

 

Notice Address:                                                               

                                                                                           
                                                                                           

 

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Section 4: EX-99.1 (EX-99.1)

EX-99.1

Exhibit 99.1

 

LOGO    LOGO

 

FOR IMMEDIATE RELEASE
Contacts:
Valley National Bancorp    Oritani Financial Corp.
Alan D. Eskow    Kevin J. Lynch
Senior Executive Vice President and    Chairman, President and
Chief Financial Officer    Chief Executive Officer
(973) 305-4003    (201) 664-5400

VALLEY NATIONAL BANCORP TO ACQUIRE ORITANI FINANCIAL CORP.

IN CAPITAL ACCRETIVE TRANSACTION

WAYNE, N.J., and TOWNSHIP of WASHINGTON, N.J. – Wednesday, June 26, 2019 – In a merger of two banks with a similar focus on the densely populated northern New Jersey markets, Valley National Bancorp (“Valley”) (NASDAQ:VLY) announced today that it is doubling its market share in demographically attractive Bergen County and enhancing its presence in Hudson County by acquiring Oritani Financial Corp. (“Oritani”) (NASDAQ: ORIT).

The companies have entered into a merger agreement in which the common shareholders of Oritani will receive 1.60 shares of Valley common stock for each Oritani share they own. The transaction is valued at an estimated $740 million, based on Valley’s closing stock price on June 25, 2019.

Valley, and its wholly-owned subsidiary, Valley National Bank, has approximately $32.5 billion in assets, $25.4 billion in loans, $24.9 billion in deposits and more than 200 branches in New Jersey, New York, Florida and Alabama.

Oritani, and its wholly-owned subsidiary, Oritani Bank has approximately $4.1 billion in assets, $3.5 billion in loans, $2.9 billion in deposits, and maintains a branch network of 26 offices.

The acquisition represents a significant addition to Valley’s New Jersey franchise, and will meaningfully enhance its presence in the densely populated and affluent Bergen County market. The acquisition will also bolster capital, providing greater balance sheet optionality and the acceleration of previously disclosed strategic initiatives.

Ira Robbins, Valley’s President & CEO commented that, “Oritani’s conservative credit culture, combined with their customer focus should mesh seamlessly with that of Valley and our vision forward.” He also stated, “I want to thank Kevin Lynch and his entire Oritani team for being responsible stewards of the franchise and balance sheet during his tenure. This capital-enriching transaction will enable Valley to continue to focus on improving the growth profile throughout its entire franchise, while providing enhanced products, services and delivery channels to Oritani’s existing customer base. We are excited about this in-market combination and the synergies that it will bring us.”


Kevin Lynch, Chairman, President & CEO of Oritani said, “We are thrilled about this combination with Valley. The infrastructure that has been assembled at Valley over the past few years will enable our customers to access a substantial product offering while still receiving the local decision making and the exceptional service they have become accustomed to at Oritani.” Mr. Lynch is expected to join the Boards of Directors of Valley and Valley National Bank upon completion of this transaction.

The combined company at close is expected to have approximately $38 billion in assets, $30 billion in loans, $29 billion in deposits, and 245 branches across New Jersey, New York, Florida, and Alabama.

The Boards of Directors of both companies, after extensive review and due diligence, unanimously approved the transaction. The acquisition is expected to close late in the fourth quarter of 2019, subject to standard regulatory approvals, shareholder approvals from Valley and Oritani, as well as other customary conditions.

In conjunction with the closing of this transaction, Valley is planning on restructuring approximately $635 million of higher cost FHLB borrowings. Valley anticipates the result of the merger, combined with debt restructuring will be immediately neutral to slightly accretive to earnings per share and tangible book value while increasing Tier 1 Common Equity by over 50 basis points.

Combination of Strong Banks with Significant Overlapping Presence

The transaction with Oritani is expected to substantially enhance all capital levels, allowing for a continuation of accelerated growth at Valley and providing an additional buffer for other forms of potential capital returns in the future. While we currently estimate 50% cost-savings, in addition to those related to legacy Oritani benefit plans, there has been no assumption of expense synergies due to branch closures, despite Valley and Oritani having 100% of their respective branches within a 3-mile radius of a competing branch. Valley has a track record of integrating mergers designed to minimize customer disruption, and deliver profitable growth while maintaining strong credit quality and a well-capitalized balance sheet. Selected data for the combined entity, on a pro-forma basis as of March 31, 2019, include:

 

 

Approximately $37 billion in assets

 

 

Approximately $29 billion in loans

 

 

245 branches, including 151 in northern and central New Jersey, 38 in Manhattan, Brooklyn, Queens and Long Island, 41 in Florida, and 15 in Alabama

Transaction Summary

Under the terms of the definitive agreement signed by the companies, each Oritani shareholder will receive 1.60 shares of Valley common stock for each share of Oritani common stock they own. Oritani’s normal quarterly cash dividend policy for the period ended June 30, 2019 (typically paid in August) will not be impacted by this transaction. However, any subsequent quarterly dividends declared by Oritani will be limited to the current rate paid by Valley, exchange adjusted to $0.18 per common until the close of the merger.

 

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The following are selected terms and metrics associated with the transaction based upon current projections, including the proposed refinancing of FHLB borrowings:

 

 

Purchase price represents a fixed 1.60x for 1 exchange ratio

 

 

Total transaction value of approximately $740 million

 

 

Price to 2020 Fully Synergized EPS of 9.8x

 

 

Price to tangible book value of 1.4x

 

 

Tangible book value accretion of 0.0%

 

 

Anticipated to be accretive to earnings in 2020, including FHLB restructuring

J.P. Morgan Securities LLC acted as financial advisor to Valley to provide a fairness opinion to Valley National Bancorp’s Board of Directors. The law firm of Day Pitney LLP acted as counsel to Valley. Oritani was advised by the investment banking firm of Keefe, Bruyette & Woods, a Stifel Company, and the law firm of Luse Gorman, PC.

Investor Conference Call

Executives from Valley and Oritani will host a conference call with investors and the financial community at 9:00 AM Eastern Standard Time, today to discuss this transaction. Those wishing to participate in the call may dial toll-free (866) 354-0432 using 2343569. An audio webcast will be available at https://edge.media-server.com/mmc/p/a8nhvz4s. Investor presentation materials on this transaction will be made available prior to the conference call at www.valley.com.

About Valley

As the principal subsidiary of Valley National Bancorp, Valley National Bank is a regional bank with approximately $32.5 billion in assets. Valley is committed to giving people and businesses the power to succeed. Valley operates over 200 branches across New Jersey, New York, Florida and Alabama, and is committed to providing the most convenient service, the latest innovations and an experienced and knowledgeable team dedicated to meeting customer needs. Helping communities grow and prosper is the heart of Valley’s corporate citizenship philosophy. To learn more about Valley, go to www.valley.com or call our Customer Service Center at 800-522-4100.

About Oritani

Oritani Financial Corp. is the holding company for Oritani Bank, a New Jersey state chartered bank offering a full range of retail and commercial loan and deposit products. Oritani Bank is dedicated to providing exceptional personal service to its individual and business customers. Oritani currently operates its main office and 25 full-service branches in the New Jersey Counties of Bergen, Hudson, Essex and Passaic. For additional information about Oritani Bank, please visit www.oritani.com.

 

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Additional Information and Where to Find It

This communication does not constitute an offer to sell or the solicitation of an offer to buy any securities or a solicitation of any vote or approval. In connection with the proposed Merger, Valley intends to file with the Securities and Exchange Commission (the “Commission”) a Registration Statement on Form S-4 containing a joint proxy statement of Valley and Oritani that also constitutes a prospectus of Valley. INVESTORS AND SECURITY HOLDERS ARE ADVISED TO READ THE JOINT PROXY STATEMENT/PROSPECTUS WHEN IT BECOMES AVAILABLE, AND ANY OTHER RELEVANT DOCUMENTS FILED WITH THE COMMISSION, AS WELL AS ANY AMENDMENTS OR SUPPLEMENTS TO THE DOCUMENTS, BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION. Investors and security holders may obtain a free copy of the registration statement (when available), including the joint proxy statement/prospectus, and other documents filed by Valley and Oritani with the Commission at the Commission’s web site at www.sec.gov. Valley’s documents may be accessed and downloaded for free at Valley’s web site at http://www.valley.com/filings.html or by directing a request to Ronald H. Janis, Senior Executive Vice President & General Counsel, Valley National Bancorp, at 1455 Valley Road, Wayne, New Jersey 07470, telephone (973) 305-8800. Oritani’s documents may be accessed and downloaded for free at Oritani’s website at www.oritani.com oritani.com or by directing a request to Kevin Lynch, Chairman, President and Chief Executive Officer, Oritani Financial Corp., at 370 Pascack Road, Township of Washington, New Jersey 07676, telephone (201) 664-5400.

Participants in the Solicitation

This communication is not a solicitation of a proxy from any security holder of Valley or Oritani. However, Valley, Oritani, their respective directors and executive officers and other persons may be deemed to be participants in the solicitation of proxies from security holders of Valley or Oritani in respect of the proposed transaction. Information regarding the directors and executive officers of Valley may be found in its definitive proxy statement relating to its 2019 Annual Meeting of Shareholders filed with the Commission on March 8, 2019 and its Annual Report on Form 10-K for the year ended December 31, 2018, each of which can be obtained free of charge from Valley’s website. Information regarding the directors and executive officers of Oritani may be found in its definitive proxy statement relating to its 2018 Annual Meeting of Stockholders filed with the Commission on October 11, 2018 and its Annual Report on Form 10-K for the year ended June 30, 2018, each of which can be obtained free of charge from Oritani’s website. Other information regarding the participants in the proxy solicitation and a description of their direct and indirect interests, by security holdings or otherwise, will be contained in the joint proxy statement/prospectus and other relevant materials to be filed with the Commission when they become available.

Forward Looking Statements

The foregoing contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995, including but not limited to those regarding the proposed Merger. Such statements are not historical facts and include expressions about management’s confidence and strategies and management’s expectations about new and existing programs and products, relationships, opportunities,

 

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taxation, technology and market conditions. These statements may be identified by such forward-looking terminology as “expect,” “believe,” “view,” “opportunity,” “allow,” “continues,” “reflects,” “typically,” “usually,” “anticipate,” or similar statements or variations of such terms. Such forward-looking statements involve certain risks and uncertainties. Actual results may differ materially from such forward-looking statements. Factors that may cause actual results to differ from those contemplated by such forward-looking statements include, but are not limited to, the following: failure to obtain shareholder or regulatory approval for the Merger or to satisfy other conditions to the Merger on the proposed terms and within the proposed timeframe including, without limitation, delays in closing the Merger; the inability to realize expected cost savings and synergies from the Merger in amounts or in the timeframe anticipated; changes in the estimates of non-recurring charges; the diversion of management’s time on issues relating to the Merger; costs or difficulties relating to Oritani integration matters might be greater than expected; changes in the stock price of Valley from the date of the Merger announcement to the closing date; material adverse changes in Valley’s or Oritani’s operations or earnings; the inability to retain customers and qualified employees of Oritani; the inability to repay $635 million of higher cost FHLB borrowings in conjunction with the Merger; developments in the DC Solar bankruptcy and federal investigations that could require the recognition of additional tax provision charges related to uncertain tax liability positions; higher or lower than expected income tax expense or tax rates, including increases or decreases resulting from changes in uncertain tax position liabilities, tax laws, regulations and case law; and weakness or a decline in the U.S. economy, in particular in New Jersey, the New York Metropolitan area (including Long Island), Florida and Alabama; an unexpected decline in commercial real estate values within our market areas, as well as the risk factors set forth in Valley’s Annual Report on Form 10-K for the year ended December 31, 2018 and Oritani’s Annual Report and Form 10-K for the year ended June 30, 2018. Valley and Oritani assume no obligation for updating any such forward-looking statement at any time.

 

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