Exhibit 10.1
SHAREHOLDER AGREEMENT
THIS SHAREHOLDER AGREEMENT dated as of June 25, 1996 (the "Agreement") is
entered into by and between Community First Bankshares, Inc., a Delaware
corporation ("CFB"), and Xxxxxx X. Xxxxxxxx ("Shareholder").
WITNESSETH:
WHEREAS, as of the date hereof, Shareholder owns certain shares of the
common stock of Mountain Parks Financial Corp., a Delaware corporation ("MPF"),
$.001 par value ("MPF Common Stock");
WHEREAS, CFB is contemplating the acquisition of MPF by means of a merger
(the "Merger") of MPF with and into CFB, pursuant to an Agreement and Plan of
Reorganization (the "Reorganization Agreement") and a related Plan of Merger,
each dated as of the date hereof (the "Merger Agreements");
WHEREAS, CFB is unwilling to expend the substantial time, effort and
expense necessary to implement the proposed acquisition of MPF, including
applying for and obtaining necessary approvals of federal and state banking
authorities, unless Shareholder enters into this Agreement with CFB;
WHEREAS, due to the number of shares of CFB Common Stock that Shareholder
will receive in the Merger, CFB is unwilling to enter into the Merger Agreements
unless Shareholder agrees to the additional rights and obligations with respect
to the CFB Common Stock set forth hereunder; and
WHEREAS, Shareholder believes it is in his best interest as well as the
best interest of MPF for CFB to consummate the Merger; and
WHEREAS, this Agreement is created under Section 218(c) of the Delaware
General Corporation Law ("DGCL");
NOW, THEREFORE, in consideration of the covenants and agreements of the
parties herein contained and as an inducement to CFB to incur the expenses
associated with the Merger and to enter into the Merger Agreements, the parties
hereto, intending to be legally bound, hereby agree as follows:
1. DEFINITIONS. All capitalized terms not otherwise defined herein are
as defined in the Reorganization Agreement.
2. REPRESENTATION AND WARRANTIES. Shareholder represents and warrants
that as of the date hereof Shareholder (a) owns beneficially the number of
shares of MPF Common Stock identified below, all of which shares are free and
clear of all liens, pledges, security interests,
claims, encumbrances, options and agreements to sell or otherwise transfer,
except as disclosed in the Disclosure Letter; and (b) has voting power with
respect to such shares.
3. VOTING AGREEMENTS. Shareholder shall vote all the shares of MPF
Common Stock he now beneficially owns or hereafter acquires and over which
Shareholder has voting control (the "Subject Shares") in favor of the Merger at
any meeting of shareholders of MPF called for the purpose of approving the
Merger. Shareholder shall not exercise, and hereby waives, any and all rights
he has or may have under Section 262 (Dissenters' Rights) of the DGCL in
connection with the Merger. Shareholder shall not vote the Subject Shares in
favor of or consent to (a) any issuance of stock to any party other than CFB or
its affiliates or (b) an acquisition of stock or all or substantially all of the
assets of MPF by any party other than CFB or its affiliates, prior to the
termination of this Agreement. Shareholder shall not sell, assign, pledge or
otherwise transfer the subject shares to a third party transferee unless as a
condition of such transfer the third party transferee shall execute a voting
agreement in form acceptable to CFB (and substantially in the form of this
Agreement). Such voting agreement shall be deemed a supplement to this
Agreement to which all shares of MPF Common Stock then or thereafter acquired by
the third party transferee shall be subject. Shareholder authorizes CFB to
deliver a copy of this Agreement to MPF to provide notice to MPF of the
foregoing restriction on transfer.
4. NO OWNERSHIP INTEREST. Nothing contained in this Agreement shall be
deemed to vest in CFB any direct or indirect ownership or incidence of ownership
of or with respect to any shares of MPF Common Stock. All rights, ownership and
economic benefits of and relating to the shares of MPF Common Stock shall remain
and belong to Shareholder, and except as otherwise expressly provided herein or
in the Merger Agreements, CFB shall have no authority to (i) manage, direct,
superintend, restrict, regulate, govern or administer any of the policies or
operations of MPF, (ii) exercise any power or authority to direct Shareholder in
the voting of any of the shares of MPF Common Stock, or (iii) exercise any power
or authority to direct Shareholder in the performance of his duties or
responsibilities as a director or officer of MPF.
5. EVALUATION OF INVESTMENT. Shareholder, by reason of his knowledge and
experience in financial and business matters or through serving as an officer or
director of a financial institution, believes himself capable of evaluating the
merits and risks of the investment in common stock of CFB, $.01 par value ("CFB
Common Stock"), contemplated by the Merger Agreements.
6. DOCUMENTS DELIVERED. Shareholder acknowledges receipt of copies of
the following documents:
a. Merger Agreements and all exhibits thereto;
b. CFB's 1995 Annual Report (including Annual Report on Form 10-K for the
year ended December 31, 1995);
c. Notice of 1995 Annual Meeting of Stockholders and Proxy Statement
dated April 11, 1996 of CFB; and
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d. CFB's Quarterly Report on Form 10-Q for the quarter ended March 31,
1996.
7. LIMITATION ON FURTHER OWNERSHIP OF CFB COMMON STOCK. Unless CFB
otherwise agrees in writing, Shareholder shall not directly or indirectly
acquire beneficial ownership of any CFB Common Stock, any securities convertible
into or exchangeable for CFB Common Stock, or any other right to acquire CFB
Common Stock or authorize or make a tender, exchange or other offer, except (i)
by way of stock dividends or other distributions or offerings made available to
holders of any CFB Common Stock generally or (ii) pursuant to the Merger
Agreement, or (iii) by way of stock options or other stock rights granted to
non-employee directors of CFB, if the effect of such acquisition would be to (A)
cause or constitute the occurrence of an Acquisition Event under the terms of
the Rights Agreement dated January 19, 1995 by and between CFB and Norwest Bank
Minnesota, N.A., as Rights Agent, or (B) increase the Voting Power of all CFB
Common Stock then owned by Shareholder or which he has a right to acquire to
more than the percentage of the Total Voting Power of CFB which Shareholder is
entitled to hold at such time as provided in this Section 7 (the "Ownership
Ceiling"). The Ownership Ceiling shall initially be ten percent (10%).
As used herein, the "Total Voting Power of CFB" means the total number of
votes which may be cast in the election of directors of CFB at any meeting of
stockholders of CFB if all securities entitled to vote in the election of
directors of CFB were present and voted at such meeting (other than votes that
may be cast only upon the happening of a contingency).
8. VOTING.
(a) Shareholder shall take such action as may be required so that all
shares of CFB Common Stock owned by Shareholder are voted for nominees to the
Board of Directors of CFB in accordance with the recommendation of the Board of
Directors.
(b) Unless CFB otherwise consents in writing, Shareholder shall take
such action as may be required so that all shares of CFB Common Stock owned by
Shareholder are voted in accordance with the recommendations of the Board of
Directors on all other matters to be voted on by holders of CFB Common Stock,
or, if Shareholder objects to the recommendation of CFB's Board of Directors,
then Shareholder shall vote his shares of CFB Common Stock in the same
proportion as the stockholders have voted on the matter.
(c) Shareholder, as the holder of shares of CFB Common Stock, shall
be present, in person or by proxy, at all meetings of stockholders of CFB so
that all shares of CFB Common Stock beneficially owned by him may be counted for
the purposes of determining the presence of a quorum at such meetings and to
vote such CFB Common Stock as provided herein.
9. NO VOTING TRUST, ETC. Shareholder shall not deposit any shares of CFB
Common Stock in a voting trust or, except as otherwise provided herein, subject
any CFB Common Stock to any proxy, arrangement or agreement with respect to the
voting of such CFB Common Stock other than a proxy granted to the proxy
holder(s) designated by CFB's Board of Directors.
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10. NO SOLICITATION OF PROXIES. Without CFB's prior written consent,
Shareholder shall not solicit proxies with respect to any CFB Common Stock, nor
shall he become a "participant" in any "election contest" (as such terms are
used in Rule 14a-11 of Regulation 14A under the Exchange Act) relating to the
election of directors of CFB).
11. NO ACTS IN CONCERT WITH OTHERS. Shareholder shall not join a
partnership, limited partnership, syndicate or other group, or otherwise act in
concert with any third person, for the purpose of acquiring, holding, or
disposing of CFB Common Stock.
12. AMENDMENT AND MODIFICATION. This Agreement may be amended, modified
or supplemented at any time by the written approval of such amendment,
modification or supplement by Shareholder and CFB.
13. ENTIRE AGREEMENT. This Agreement evidences the entire agreement among
the parties hereto with respect to the matters provided for herein and there are
no agreements, representations or warranties with respect to the matters
provided for herein other than those set forth herein and in the Merger
Agreements and their related written agreements. This Agreement supersedes any
agreements among MPF and its stockholders, concerning the acquisition,
disposition or control of the stock of MPF.
14. SEVERABILITY. The parties agree that if any provision of this
Agreement shall under any circumstances be deemed invalid or inoperative, this
Agreement shall be construed with the invalid or inoperative provisions deleted
and the rights and obligations of the parties shall be construed and enforced
accordingly.
15. COUNTERPARTS. This Agreement may be executed into two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one and the same instrument.
16. GOVERNING LAW. The validity, construction, enforcement and effect of
this Agreement shall be governed by the internal laws of the State of Delaware.
17. HEADINGS. The headings for the paragraphs of this Agreement are
inserted for convenience only and shall not constitute a part hereof or affect
the meaning or interpretation of this Agreement.
18. SUCCESSORS. This Agreement shall be binding upon and inure to the
benefit of CFB and its successors and Shareholder and Shareholder's spouse and
their respective executors, personal representatives, administrators, heirs,
legatees, guardians, and other legal representatives. This Agreement shall
survive the death or incapacity of Shareholder. This Agreement may be assigned
by CFB only to an affiliate of CFB.
19. JURY WAIVER. Each of the parties hereby waives any right to a trial
by jury with respect to any dispute arising out of or relating to this
Agreement.
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20. TERMINATION. Except as otherwise set forth herein, this Agreement
shall terminate at the earlier of: (a) the Effective Time (as defined in the
Reorganization Agreement); or (b) the termination of the Reorganization
Agreement. Notwithstanding the foregoing, Sections 2, 5 and 6 of this Agreement
shall survive the Effective Time and shall not terminate, and Sections 7, 8, 9,
10 and 11 of this Agreement shall not terminate until the earliest to occur of:
(a) the adjournment of the second Annual Meeting of Shareholders of CFB to occur
after the Effective Time; (b) in the event CFB earnings per share for the
then-current fiscal year are less than CFB earnings per share of common stock
for the immediately preceding fiscal year; or (c) the reduction in Shareholder's
percentage ownership of CFB Common Stock (including CFB Common Stock owned by
"affiliates" of Shareholder, determined in accordance with Rule 144 of the
General Rules and Regulations under the Securities Act of 1993) to less than
seven percent (7%) of total outstanding shares of CFB Common Stock. Upon
termination of this Agreement, no party shall have any further obligation or
liabilities hereunder, provided, that such termination shall not relieve any
party from liability for any breach of this Agreement prior to such termination.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
COMMUNITY FIRST BANKSHARES, INC.
By:
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Title:
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Shares of Mountain Parks Financial
Corp. Common Stock owned of
record or otherwise beneficially
Name:
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Xxxxxx X. Xxxxxxxx
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