Exhibit 2.3
Exhibit D
XXXXXXX BANCORPORATION, INC.
STOCKHOLDER AGREEMENT
This STOCKHOLDER AGREEMENT, dated as of March 15, 1998, is entered into by
and among St. Xxxx Bancorp, Inc., a Delaware corporation ("St. Xxxx"), Xxxxxxx
Bancorporation, Inc., a Delaware corporation ("Xxxxxxx Corp.") and the
stockholders of Xxxxxxx Corp. named on Schedule I hereto (collectively, the
"Stockholders") who are directors, executive officers or other affiliates of
Xxxxxxx Corp. (for purposes of Rule 145 under the Securities Act of 1933, as
amended, and for purposes of qualifying the Merger (defined below) for "pooling-
of-interests" accounting treatment).
WHEREAS, St. Xxxx and Xxxxxxx Corp. have entered into an Agreement and
Plan of Merger, dated as of March 15, 1998 (the "Agreement"), which is
conditioned upon, and requires, the execution of this Stockholder Agreement and
which provides for, among other things, the acquisition of Xxxxxxx Corp. by St.
Xxxx, to be effected by the merger of Xxxxxxx Corp. with and into St. Xxxx, in a
stock-for-stock transaction (the "Merger"); and
WHEREAS, in order to induce St. Xxxx to enter into or proceed with the
Agreement, Xxxxxxx Corp. represents and warrants as to that the facts provided
herein are accurate as to each of the Stockholders set forth herein, and each of
the Stockholders agrees to, among other things, vote in favor of the Agreement,
the Merger and the other transactions contemplated by the Agreement in his/her
capacity as a stockholder of Xxxxxxx Corp.;
NOW, THEREFORE in consideration of the premises, the mutual covenants
and agreements set forth herein and other good and valuable consideration, the
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Ownership of Xxxxxxx Corp. Common Stock. Xxxxxxx Corp. and each
Stockholder represents and warrants that the number of shares of Xxxxxxx Corp.
common stock, par value $.01 per share ("Xxxxxxx Corp. Common Stock"), set forth
opposite such Stockholder's name on Schedule I hereto is the total number of
shares of Xxxxxxx Corp. Common Stock over which such person has "beneficial
ownership" within the meaning of Rule 13d-3 under the Securities Exchange Act of
1934, as amended, except that the provisions of Rule 13d-3(d)(1)(i) shall be
considered without any limit as to time.
2. Agreements of the Stockholders. Each Stockholder covenants and
agrees that:
(a) Such Stockholder shall, at any meeting of the holders of Xxxxxxx
Corp. Common Stock called for the purpose, vote or cause to be voted all shares
of Xxxxxxx Corp. Common Stock with respect to which such Stockholder has the
right to vote (whether owned as of the date hereof or hereafter acquired) (i) in
favor of the Agreement, the Merger and the other transactions contemplated by
the Agreement and (ii) against any Acquisition Transaction (as defined in the
Agreement) with any party other than St. Xxxx or one of its Subsidiaries (as
defined in the Agreement) or affiliates, or any other transaction inconsistent
with the Agreement or the transactions contemplated thereby.
(b) Except as otherwise expressly permitted hereby, such Stockholder
shall not, during the risk sharing period as interpreted by the Securities and
Exchange Commission ("SEC"), sell, pledge, transfer or otherwise dispose of
his/her shares of Xxxxxxx Corp. Common Stock; provided, however, that this
Section 2(b) shall not apply to a pledge existing as of March 12, 1998.
(c) Such Stockholder shall not in his/her capacity as a stockholder of
Xxxxxxx Corp. directly or indirectly encourage or solicit or hold discussions or
negotiations with, or provide any information to, any person, entity or group
(other than St. Xxxx or an affiliate thereof) concerning any merger, sale of all
or substantially all of the assets or liabilities not in the ordinary course of
business, sale of shares of capital stock or similar transaction involving
Xxxxxxx Corp. or any other transaction inconsistent with the Agreement or the
transactions contemplated thereby. Nothing herein shall impair such
Stockholder's fiduciary obligations as a director of Xxxxxxx Corp.
(d) Such Stockholder shall use his/her best efforts to take or cause
to be taken all action, and to do or cause to be done all things necessary,
proper or advisable under applicable laws and regulations to consummate and make
effective the Merger contemplated by this Stockholder Agreement.
(e) Such Stockholder shall not, prior to the public release by St.
Xxxx of an earnings report to its stockholders covering at least one month of
operations after consummation of the Merger (the "Restricted Period"), sell,
pledge (other than the replacement of a pledge existing on March 12, 1998 of
Xxxxxxx Corp. Common Stock), transfer or otherwise dispose of the shares of St.
Xxxx common stock, par value $.01 per share (the "St. Xxxx Common Stock"), to be
received by him/her for his/her shares of Xxxxxxx Corp. Common Stock upon
consummation of the Merger.
(f) Such Stockholder shall comply with all applicable federal and
state securities laws in connection with any sale of St. Xxxx Common Stock
received in exchange for Xxxxxxx Corp. Common Stock in the Merger, including the
trading and volume limitations as to sales by affiliates contained in Rule 145
under the Securities Act of 1933, as amended.
(g) During the Restricted Period, such Stockholder shall not sell or
otherwise dispose of a number of shares of his/her Xxxxxxx Corp. Common Stock,
or shares of St. Xxxx Common Stock which are exchanged for said shares, (i)
which is greater than 10% of his/her total beneficial ownership of said shares
as of the date of the first such sale and (ii) which in the aggregate with
shares sold or otherwise disposed of by all other Stockholders will be greater
than 1% of the issued and outstanding shares of Xxxxxxx Corp. as of the date of
the first such sale. For purposes of this computation, outstanding stock
options that currently are exercisable would be considered as outstanding or
beneficially owned after such options are converted to common stock equivalents
using the treasury stock method in accordance with generally accepted accounting
principles.
(h) Such Stockholder has no present plan or intent and, as of the
effective time of the Merger, shall have no present plan or intent, to engage in
any sale, exchange, transfer, distribution (including a distribution by a
corporation to its shareholders), redemption, or reduction in any way of such
Stockholder`s risk of ownership by short sale or otherwise, or other
disposition, directly or indirectly (collectively a "Sale"), with respect to any
of the shares of St. Xxxx Common Stock to be received by such Stockholder upon
the Merger (except for cash received for fractional shares) that would
constitute a "related person acquisition" described in (S) 1.368-1(e)(2) of the
Regulations issued pursuant to the Internal Revenue Code of 1986, as amended
(the "Regulations") or that would otherwise cause the Merger to fail to satisfy
the continuity of interest requirement set
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out in (S) 1.368-1(e) of the Regulations (a "Disqualifying Transfer"). Such
Stockholder is not aware of, or participating in, any plan or intent on the part
of Xxxxxxx Corp. stockholders to engage in one or more Disqualifying Transfers
of the St. Xxxx Common Stock to be issued in the Merger.
3. Successors and Assigns. A Stockholder may sell, pledge, transfer
or otherwise dispose of his/her shares of Xxxxxxx Corp. Common Stock, provided
that such Stockholder obtains the prior written consent of St. Xxxx and that any
acquirer of such Xxxxxxx Corp. Common Stock agrees in writing to be bound by
this Stockholder Agreement.
4. Specific Performance; Termination. The parties agree and intend
that this Stockholder Agreement be a valid and binding agreement enforceable
against the parties hereto and that damages and other remedies at law for the
breach of this Stockholder Agreement are inadequate. Xxxxxxx Corp. and each of
the Stockholders agree that irreparable damage to St. Xxxx would occur in the
event that the provisions of this Stockholder Agreement were not performed in
accordance with its specific terms or were otherwise breached by Xxxxxxx Corp.
or any of the Stockholders. It is accordingly agreed that St. Xxxx shall be
entitled to an injunction or injunctions to prevent breaches of this Stockholder
Agreement by Xxxxxxx Corp. or any of the Stockholders and to enforce
specifically the terms and provisions hereof in any court of the United States
or any state having jurisdiction, this being in addition to any other remedy to
which St. Xxxx is entitled at law or in equity. This Stockholder Agreement may
be terminated at any time prior to the consummation of the Merger by the mutual
written consent of the parties hereto and shall be automatically terminated in
the event that the Agreement is terminated in accordance with its terms;
provided, however, that if the holders of Xxxxxxx Corp. Common Stock fail to
approve the Agreement or Xxxxxxx Corp. fails to hold a stockholders' meeting to
vote on the Agreement, then (i) Section 2(a) clause (ii) hereof shall continue
in effect as to any plan or proposal received by Xxxxxxx Corp. from any person,
entity or group (other than St. Xxxx or any affiliate thereof) prior to the
termination of the Agreement or within 180 days after such termination and (ii)
Section 2(b) hereof shall continue in effect to preclude a sale other than
pursuant to normal brokers transactions on the Nasdaq Stock Market, pledge other
than to a bona fide financial institution or recognized securities dealer,
transfer or other disposition directly or indirectly to any such person, entity
or group in connection with any such plan or proposal, except upon consummation
of such plan or proposal.
5. Notices. Notices may be provided to St. Xxxx and the Stockholders
in the manner specified in the Agreement, with all notices to the Stockholders
being provided to them at the addresses set forth at Schedule I.
6. Governing Law. This Stockholder Agreement shall be governed by the
laws of the State of Delaware, without giving effect to the principles of
conflicts of laws thereof.
7. Counterparts. This Stockholder Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same and each of
which shall be deemed an original.
8. Headings. The Section headings contained herein are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Stockholder Agreement.
9. Regulatory Approval. If any provision of this Stockholder
Agreement requires the approval of any regulatory authority in order to be
enforceable, then such provision shall not be effective until such approval is
obtained; provided, however, that the foregoing shall not affect the
enforceability of any other provision of this Stockholder Agreement.
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IN WITNESS WHEREOF, St. Xxxx and Xxxxxxx Corp., by their respective duly
authorized officers, and each of the Stockholders have caused this Stockholder
Agreement to be executed and delivered as of the day and year first above
written.
ST. XXXX BANCORP, INC.
By:
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Name:
Title:
XXXXXXX BANCORPORATION, INC.
By:
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Name:
Title:
STOCKHOLDERS:
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SCHEDULE I
Number of Shares of Xxxxxxx Corp. Common
Name and Address of Stockhold Stock Beneficially Owned
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