STOCKHOLDERS AGREEMENT
This
STOCKHOLDERS AGREEMENT, dated as of May 10, 2010 (this “Agreement”), is entered into
by and among Jacksonville Bancorp, Inc., a Florida corporation (“JBI”), Atlantic BancGroup,
Inc., a Florida corporation (“ABI”), and each of the
stockholders of ABI, whose names appear on the signature pages hereto (each a
“Stockholder,” and
together, the “Stockholders”).
Capitalized terms not
otherwise defined in this Agreement shall have meanings given to such terms in
the Merger Agreement.
WHEREAS,
concurrently with the execution and delivery of this Agreement, JBI and ABI are
entering into an Agreement and Plan of Merger (the “Merger Agreement”), pursuant
to which (and on the terms and subject to the conditions set forth in therein),
among other things, ABI will merge with and into JBI (the “Merger”) and each issued and
outstanding share of common stock, par value $0.01 per share, of ABI (the “Common Stock”) will be
converted into the right to receive the Merger consideration set forth in the
Merger Agreement; and
WHEREAS,
as of the date hereof, each Stockholder is the Beneficial Owner (defined below)
of such number of shares of Common Stock as is set forth by the name of such
Stockholder on the signature page hereto, and the Stockholders collectively are
the Beneficial Owners and record owners of, and have the sole right to vote and
dispose of, the aggregate number of shares of Common Stock set forth on the
signature page hereto (the “Owned Shares,” and together
with any shares of Common Stock of which any Stockholder acquires Beneficial
Ownership after the date hereof and prior to the termination hereof, whether
upon purchase or otherwise, are collectively referred to herein as the “Covered Shares”);
and
WHEREAS,
as an inducement and condition to entering into the Merger Agreement, JBI has
required that the Stockholders agree, and the Stockholders have agreed, to enter
into this Agreement.
NOW,
THEREFORE, in consideration of the representations, warranties, covenants and
agreements set forth herein, the parties hereto agree as follows:
ARTICLE
I
VOTING
AGREEMENT
Section
1.01 Agreement to
Vote.
(a) Each Stockholder undertakes that, prior to any termination in
accordance with Section 4.01 hereof, at such time as ABI conducts a meeting of,
or otherwise seeks a vote or consent of, its stockholders in connection with the
approval and adoption of the Merger Agreement and the Merger (any such meeting
or any adjournment thereof, or such consent process, the “ABI Stockholders’ Meeting”),
such Stockholder shall, and shall cause its Affiliates to, vote or provide a
consent (or cause to be voted or to provide a consent) with respect to all
Covered Shares Beneficially Owned by such Stockholder or its Affiliates, as the
case may be, and over which such Stockholder or one of its Affiliates has voting
power, in favor of the Merger Agreement and the Merger and each of the other
actions contemplated by the Merger Agreement and this Agreement and actions
required in furtherance thereof and hereof.
(b) Without
limiting the foregoing, it is understood that the obligations under this
Section 1.01 shall not be affected by any recommendation of the board of
directors of ABI as to the Merger at the time of any such meeting or consent
solicitation.
(c) At
any ABI Stockholders’ Meeting or at any adjournment thereof or in any other
circumstances upon which the vote, consent or other approval of ABI’s
stockholders is sought, each Stockholder shall, and shall cause its Affiliates
to, vote or provide a consent (or cause to be voted or to provide a consent)
with respect to all Covered Shares Beneficially Owned by such Stockholder or its
Affiliates, as the case may be, and over which such Stockholder or one of its
Affiliates has voting power, against (i) any Acquisition Proposal or
Acquisition Agreement, including, without limitation, any merger, consolidation
or exchange agreement or merger or exchange (other than the Merger Agreement),
consolidation, combination, sale of substantial assets, reorganization,
recapitalization, dissolution, liquidation or winding up of or by ABI, or
(ii) any amendment of ABI’s articles of incorporation or bylaws or other
proposal or transaction involving ABI, which amendment or other proposal or
transaction would in any manner delay, impede, frustrate, prevent or nullify the
Merger Agreement or the Merger (each of the foregoing in clause (i) or (ii)
above, a “Competing
Transaction”).
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF STOCKHOLDERS
Each
Stockholder, severally and not jointly, represents and warrants to JBI as
follows:
Section
2.01 Authority;
Authorization. (a) Such
Stockholder has all requisite power and authority to execute and deliver this
Agreement and to perform such Stockholder’s obligations hereunder.
(b) This
Agreement has been duly and validly authorized, executed and delivered by such
Stockholder and, assuming the authorization, execution and delivery of this
Agreement by JBI and each other Stockholder party hereto, constitutes a legal,
valid and binding obligation of such Stockholder, enforceable against such
Stockholder in accordance with its terms.
(c) If
such Stockholder is married and the Owned Shares set forth by the name of such
Stockholder on the signature page hereto opposite such Stockholder’s name
constitute property owned jointly with Stockholders’ spouse, this Agreement
constitutes the valid and binding agreement of such Stockholder’s
spouse. If this Agreement is being executed in a representative or
fiduciary capacity, the Person signing this Agreement has full power and
authority to enter into and perform this Agreement.
Section
2.02 Ownership of
Securities. (a) Such Stockholder is, and at all times
during the term of this Agreement will be, the record and Beneficial Owner of
the Covered Shares set forth by the name of such Stockholder on the signature
page hereto, and such Stockholder has,
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and at
all times during the term of this Agreement will have, good and marketable title
(which may include holding in nominee or “street name”) to all such Covered
Shares, free and clear of any Lien and any other restriction (including any
restriction on the right to vote or otherwise dispose of the Covered Shares)
other than as created by this Agreement.
(b) Except
for the Covered Shares set forth by the name of such Stockholder on the
signature page hereto, such Stockholder does not Beneficially Own any shares of
the capital stock of ABI.
(c) For
the purposes of this Agreement, the following terms shall have the meanings
assigned below:
(i) “Beneficially Owned” or “Beneficial Ownership” has the
meaning given to such term in Rule 13d-3 under the Exchange Act (disregarding
the phrase “within 60 days” in paragraph (d)(1)(i) thereof). Without
limiting the generality of the foregoing, a person shall be deemed to be the
Beneficial Owner of shares (A) which such person or any of its Affiliates
or associates (as such term is defined in Rule 12b-2 under the Exchange Act)
beneficially owns, directly or indirectly, (B) which such person or any of
its Affiliates or associates (as such term is defined in Rule 12b-2 of the
Exchange Act) has, directly or indirectly, (1) the right to acquire (whether
such right is exercisable immediately or subject only to the passage of time),
pursuant to any agreement, arrangement or understanding or upon the exercise of
consideration rights, exchange rights, warrants, options or otherwise, or (2)
the right to vote pursuant to any agreement, arrangement or understanding or
(C) which are beneficially owned, directly or indirectly, by any other
persons with whom such person or any of its Affiliates or associates has any
agreement, arrangement or understanding for the purpose of acquiring, holding,
voting or disposing of such shares.
(ii) “Beneficial Owner” means, with
respect to any securities, a Person who has Beneficial Ownership of such
securities.
Section
2.03 Non-Contravention.
(a) The
execution and delivery of this Agreement by such Stockholder does not, and the
performance of this Agreement by such Stockholder will not, (i) violate,
conflict with, or result in the breach of or constitute a default (or an event
which with notice or lapse of time or both would become a default) under, or
result in the termination of, or accelerate the performance required by, or
result in a right of termination or acceleration under, any note, bond,
mortgage, indenture, lease, license, contract, agreement or other instrument or
obligation to which such Stockholder is a party or by which any of his
properties (including the Covered Shares) may be bound, or (ii) violate or
conflict with or require any consent, approval, or notice under, any Order or
Law applicable to such Stockholder or by which any of his respective properties
may be bound.
(b) There
is no action pending or, to the knowledge of such Stockholder, threatened
against such Stockholder that questions the validity of this Agreement or any
action taken or to be taken by such Stockholder in connection with this
Agreement.
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(c) Without
limiting the generality of the foregoing, all proxies or powers-of-attorney
heretofore given by such Stockholder in respect of any of the Owned Shares, if
any, are not irrevocable and all such proxies and powers-of-attorney have been
properly revoked or are no longer in effect as of the date hereof.
Section
2.04 Reliance by
JBI. Such
Stockholder understands and acknowledges that JBI is entering into the Merger
Agreement in reliance upon such Stockholder’s execution, delivery and
performance of this Agreement.
Section
2.05 No
Broker. No broker, investment banker, financial adviser or
other Person is entitled to any broker’s, finder’s, financial adviser’s or other
similar fee or commission in connection with the transactions contemplated
hereby based upon arrangements made by or on behalf of the Stockholder in such
capacity.
ARTICLE
III
COVENANTS
Section
3.01 No
Solicitation.
Each of the Stockholders shall not and shall cause its Affiliates not to
directly or indirectly solicit, initiate or encourage any inquiries or proposals
from, discuss or negotiate with, or provide any non-public information to, any
Person relating to, or otherwise facilitate, any Acquisition Proposal other than
the Merger Agreement and the Merger. Nothing in this Section 3.01
shall prohibit a Stockholder from (i) furnishing information (including
non-public information) with respect to ABI to any Person in connection with an
Acquisition Proposal or (ii) participating in negotiations with any Person
regarding an Acquisition Proposal, as permitted (but only as permitted) by
Section 7.6 of the Merger Agreement. In addition, no Stockholder or
any of its Affiliates shall, directly or indirectly, make any proposal which
constitutes, or could reasonably be expected to lead to, an Acquisition
Proposal; provided that, nothing herein shall prevent a Stockholder from
presenting to the other stockholders of ABI an Acquisition Proposal presented by
any Person (other than such Stockholder or its Affiliates).
Section 3.02 Restrictions on Transfer and
Proxies; Non-Interference. (a) Each Stockholder
undertakes that, except as contemplated by this Agreement or the Merger
Agreement, such Stockholder shall not and shall cause its Affiliates not to (i)
grant or agree to grant any proxy or power-of-attorney with respect to any
Covered Shares (except pursuant to this Agreement), (ii) deposit any Covered
Shares into a voting trust or enter into any voting agreement or understanding
with respect to any Covered Shares (except pursuant to this Agreement) or (iii)
Transfer or agree to Transfer any Covered Shares other than with JBI’s prior
written consent. For purposes of this Agreement, “Transfer” shall mean, with
respect to a security, to offer, sell, contract to sell, pledge or otherwise
dispose of (or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition of (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise)), directly or indirectly, any shares of capital stock of ABI or any
securities convertible into, or exercisable or exchangeable for such capital
stock, or publicly announce an intention to effect any such
transaction.
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(b) Each
Stockholder further agrees not to take any action that would or is reasonably
likely to (i) make any representation or warranty contained herein untrue or
incorrect in any material respect or (ii) have the effect of preventing such
Stockholder from performing its obligations under this Agreement.
(c) ABI
agrees with, and covenants to, JBI that ABI shall not register the transfer of
any certificate representing any of the Covered Shares unless such transfer is
made to JBI or otherwise in compliance with this Agreement. Each
Stockholder agrees that, upon the request of JBI, such Stockholder will tender
to ABI any and all certificates and instruments representing such Stockholder’s
Covered Shares and ABI will prominently inscribe upon such certificates the
following legend:
THE
SHARES OF COMMON STOCK, $.01 PAR VALUE PER SHARE, OF ATLANTIC BANCGROUP, INC.
(THE “COMPANY”) REPRESENTED BY THIS CERTIFICATE OR HEREAFTER ACQUIRED IN RESPECT
OF SUCH SHARES ARE SUBJECT TO A STOCKHOLDERS AGREEMENT WITH JACKSONVILLE
BANCORP, INC. AND THE COMPANY DATED AS OF MAY 10, 2010, AND NONE OF SUCH SHARES,
NOR ANY INTEREST THEREIN MAY BE SOLD, PLEDGED, HYPOTHECATED, DONATED OR
OTHERWISE TRANSFERRED OR DISPOSED OF, EXCEPT IN ACCORDANCE
THEREWITH. COPIES OF SUCH AGREEMENT MAY BE OBTAINED AT THE PRINCIPAL
EXECUTIVE OFFICES OF THE COMPANY.”
Section
3.03 Dissenters’
Rights. Each
Stockholder agrees not to exercise any dissenters’ or appraisal rights
(including, without limitation, under any set forth in Section 607.1301, et.
seq., Florida Statutes) as to any shares of capital stock of ABI which may arise
with respect to the Merger.
Section
3.04 Stop
Transfer.
Each Stockholder agrees that it shall not request that ABI register the transfer
(book-entry or otherwise) of any certificate or uncertificated interest
representing any Covered Shares, unless such transfer is made in compliance with
this Agreement.
Section
3.05 Further Assurances;
Cooperation. (a) Each
Stockholder, without further consideration, will (provided that JBI is not in
material breach of the terms of the Merger Agreement), (i) use all reasonable
efforts to cooperate with JBI and ABI in furtherance of the transactions
contemplated by the Merger Agreement, (ii) promptly execute and deliver such
additional documents that may be reasonably necessary in furtherance of the
transactions contemplated by the Merger Agreement, and take such reasonable
actions as are necessary or appropriate to consummate such transactions and
(iii) promptly provide any information, and make all filings, reasonably
requested by ABI for any regulatory application or filing made or approval
sought in connection with such transactions (including filings with any
Regulatory Authority).
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(b) Each
Stockholder hereby consents, and shall cause its Affiliates to consent, to the
publication and disclosure in the Proxy Statement and the S-4 Registration
Statement (and, as and to the extent otherwise required by Law or any
Governmental Authority, in any other documents or communications provided by JBI
or ABI to any Governmental Authority or to securityholders of ABI or JBI) of
such Stockholder’s identity and Beneficial Ownership of the Covered Shares, the
nature of such Stockholder’s commitments, arrangements and understandings under
and relating to this Agreement and the Merger Agreement and any additional
requisite information regarding the relationship of such Stockholder and its
Affiliates with JBI and its Subsidiaries and/or ABI and its
Subsidiaries.
MISCELLANEOUS
Section
4.01 Termination. This
Agreement shall terminate and become null and void upon the earlier of (a) the
Effective Time and (b) the termination of the Merger Agreement in accordance
with its terms. Any such termination shall be without prejudice to
liabilities arising hereunder before such termination.
Section
4.02 Stockholder Capacity.
Notwithstanding
anything herein to the contrary, each Stockholder has entered into this
Agreement solely in such Stockholder’s capacity as the Beneficial Owner of
Covered Shares and, if applicable, nothing herein shall limit or affect any
actions taken or omitted to be taken at any time by such Stockholder in his or
her capacity as an officer or director of ABI.
Section
4.03 Amendment; Waivers.
This
Agreement may not be amended, changed, supplemented, or otherwise modified or
terminated, except upon the execution and delivery of a written agreement
executed by the parties hereto; provided, that JBI
may waive compliance by any Stockholder with any representation, agreement or
condition otherwise required to be complied with by such Stockholder under this
Agreement or release such Stockholder from its obligations under this Agreement,
but any such waiver or release shall be effective only if in writing and
executed by JBI and only with respect to such Stockholder.
Section
4.04 Expenses. Subject
to Section 4.10(c), all costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such expenses.
Section
4.05 Notices. All
notices, requests, claims, demands and other communications hereunder shall be
in writing and shall be given (and shall be deemed to have been duly given upon
receipt) by delivery in person, by facsimile or by registered or certified mail
(postage prepaid, return receipt requested) to the respective parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
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(a) if
to any Stockholder:
c/o Atlantic BancGroup,
Inc.
0000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxxx Xxxxx, Xxxxxxx
00000
Attention: Xxxxx X. Xxxxxxxx, President
and Chief Executive Officer
Facsimile: (000) 000-0000
with an
additional copy (which shall not constitute notice) to:
Xxxxx Xxxxxx & Xxxxx
000 Xxxxx
Xxxxxx
Xxxxx
0000
Xxxxxxxxxxxx,
XX 00000
Attention:
Xxxx Xxxxx, Esquire
Facsimile: (000)
000-0000
(b) if
to ABI:
Atlantic
BancGroup, Inc.
0000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxxx Xxxxx, Xxxxxxx
00000
Attention: Xxxxx X. Xxxxxxxx, President
and Chief Executive Officer
Facsimile: (000) 000-0000
with an
additional copy (which shall not constitute notice) to:
Xxxxx Xxxxxx & Xxxxx
000 Xxxxx
Xxxxxx
Xxxxx
0000
Xxxxxxxxxxxx,
XX 00000
Attention:
Xxxx Xxxxx, Esquire
Facsimile: (000)
000-0000
(c) if
to JBI:
Jacksonville Bancorp, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxxx,
Xxxxxxx 00000
Attention: Xxxxxxx
X. Xxxxx, III, President
Facsimile: (000)
000-0000
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with an
additional copy (which shall not constitute notice) to:
McGuireWoods
LLP
Bank of
America Tower
00 Xxxxx
Xxxxx Xxxxxx , Xxxxx 0000
Xxxxxxxxxxxx,
Xxxxxxx 00000
Attention: Halcyon
X. Xxxxxxx, Esquire
Facsimile: (000)
000-0000
Section
4.07 Entire Agreement;
Assignment. This
Agreement constitutes the entire agreement among the parties with respect to the
subject matter hereof and supersedes all other prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof. Neither this Agreement, nor any of the rights
and obligations under this Agreement, shall be transferred by any party without
the prior written consent of the other parties hereto; provided that JBI may
transfer any of its rights and obligations to any direct or indirect
wholly-owned Subsidiary of JBI, but no such transfer shall relieve JBI of its
obligations hereunder.
Section
4.07 Parties in
Interest. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto and their respective successors and
permitted assigns. Nothing in this Agreement, express or implied, is
intended to or shall confer upon any other Person any rights, benefits or
remedies of any nature whatsoever under or by reason of this
Agreement.
Section
4.08 Severability. Whenever
possible, each provision or portion of any provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable Law but
if any provision or portion of any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable Law or
rule in any jurisdiction, such invalidity, illegality or unenforceability will
not affect any other provision or portion of any provision in such jurisdiction,
and this Agreement will be reformed, construed and enforced in such jurisdiction
as if such invalid, illegal or unenforceable provision or portion of any
provision had never been contained herein.
Section
4.09 Specific Performance;
Remedies.
Each of the Stockholders acknowledges and agrees that in the event of any breach
of this Agreement, JBI would be irreparably and immediately harmed and could not
be made whole by monetary damages. It is accordingly agreed that (a)
each of the Stockholders will waive, in any action for specific performance, the
defense of adequacy of a remedy at law, and (b) JBI shall be entitled, in
addition to any other remedy to which it may be entitled at law or in equity, to
compel specific performance of this Agreement. All rights, powers and
remedies provided under this Agreement or otherwise available in respect hereof
at law or in equity shall be cumulative and not alternative, and the exercise of
any right, power or remedy thereof by any party shall not preclude the
simultaneous or later exercise of any other such right, power or remedy by such
party; provided,
however, JBI shall have no right to consequential damages for any alleged
breach of this Agreement by the Stockholders. The failure of any
party hereto to exercise any right, power or remedy provided under this
Agreement or otherwise available in respect hereof at law or in equity, or to
insist upon compliance by any other party hereto with its obligations hereunder,
and any custom or practice of the parties at variance with the terms hereof,
shall not constitute a waiver by such
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party of
its right to exercise any such or other right, power or remedy or to demand such
compliance.
Section
4.10 Governing Law;
Jurisdiction. (a) This
Agreement shall be governed by and construed in accordance with the laws of the
State of Florida, without giving effect to the choice of law principles
thereof.
(b) Each
of the parties hereto (i) consents to submit itself to the personal
jurisdiction of the courts of the State of Florida or the Federal courts of the
United States of America located in the State of Florida if any dispute arises
under this Agreement or any transaction contemplated by this Agreement,
(ii) agrees that it will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court,
(iii) waives any right to trial by jury with respect to any action, suit or
proceeding related to or arising out of this Agreement or any transaction
contemplated by this Agreement, (iv) waives any objection to the laying of
venue of any action, suit or proceeding arising out of this Agreement or any
transaction contemplated hereby in any such court, (v) waives and agrees
not to plead or claim that any such action, suit or proceeding brought in any
such court has been brought in an inconvenient forum and (vi) agrees that a
final judgment in any such action, suit or proceeding in any such court shall be
conclusive and may be enforced in any other jurisdiction by suit on the judgment
or in any other manner provided by applicable Law.
(c) Notwithstanding
any other provision in this Agreement, in the event of any action arising out of
or resulting from this Agreement, the prevailing party shall be entitled to
recover its costs and expenses (including reasonable attorneys’ fees and
expenses) incurred in connection therewith.
Section
4.11 Headings. The
descriptive headings herein are inserted for convenience of reference only and
are not intended to be part of or to affect the meaning or interpretation of
this Agreement.
Section
4.12 Counterparts. This
Agreement may be executed in one or more counterparts (including by facsimile),
each of which shall be deemed to constitute an original, but all of which
together shall constitute one and the same instrument.
[SIGNATURE
PAGES FOLLOW]
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IN
WITNESS WHEREOF, each of the parties has caused this Agreement to be duly
executed as of the day and year first above written.
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JACKSONVILLE
BANCORP, INC.
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By:
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Name:
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Xxxxxxx
X. Xxxxx, III
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Title:
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President
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ATLANTIC
BANCGROUP, INC.
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By:
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Name:
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Xxxxx
X. Xxxxxxxx
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Title:
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President
and Chief Executive
Officer
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[SIGNATURE
PAGE FOR STOCKHOLDERS FOLLOWS]
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IN
WITNESS WHEREOF, each of the parties has caused this Agreement to be duly
executed as of the day and year first above written.
STOCKHOLDERS
OF ATLANTIC BANCGROUP, INC.:
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__________________________________
Name:
Xx. Xxxxx X. Xxxxxxx
Shares
of Common Stock Beneficially Owned
(excluding
shares issuable upon exercise
of options): 14,740
Shares
of Common Stock subject to
options: -0-
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__________________________________
Name:
Xxxxxx X. Xxxxxx
Shares
of Common Stock Beneficially Owned
(excluding
shares issuable upon exercise
of options): 80,000
Shares
of Common Stock subject to
options: -0-
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__________________________________
Name: Xxxxx
X. Xxxxxxxx
Shares
of Common Stock Beneficially Owned
(excluding
shares issuable upon exercise
of options): 16,000
Shares
of Common Stock subject to
options: -0-
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__________________________________
Name: Xx.
Xxxxxx X. Xxxxxxxx
Shares
of Common Stock Beneficially Owned
(excluding
shares issuable upon exercise
of options): 6,120
Shares
of Common Stock subject to
options: -0-
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__________________________________
Name: Xxxxxx
X. Xxxxxxx, Xx.
Shares
of Common Stock Beneficially Owned
(excluding
shares issuable upon exercise
of options): 51,451
Shares
of Common Stock subject to
options: -0-
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__________________________________
Name:
Xxxxxx X. Xxxxxxx
Shares
of Common Stock Beneficially Owned
(excluding
shares issuable upon exercise
of options): 13,000
Shares
of Common Stock subject to
options: -0-
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