AGREEMENT
AGREEMENT
This
Agreement (the “Agreement”) is made and entered into as of January 23, 2007 by
and between _____________________________ (“Shareholder”), who is a shareholder
and may be an “Affiliate” of Commercial Bankshares, Inc. (“Acquired
Corporation”) within the meaning of Rule 145 under the Securities Act of 1933,
as amended (the “1933 Act”), and The Colonial BancGroup (“BancGroup”) with
regard to the following:
A.
Acquired Corporation and BancGroup have entered into an Agreement and Plan
of
Merger, dated as of even date herewith (the “Merger Agreement”), providing for
the merger of Acquired Corporation with and into BancGroup (the “merger”) and
for the payment of consideration of Acquired Corporation shareholders in the
form of BancGroup common stock, par value $2.50 (the “BancGroup Common
Stock”).
B.
Shareholder has the power to vote or direct the voting of the shares of Acquired
Corporation common stock identified on Annex I hereto (such shares, together
with all shares of Acquired Corporation common stock subsequently acquired
by
Shareholder during the term of this Agreement being referred to collectively
as
the “Shares”).
C.
In
order to induce BancGroup to enter into the Merger Agreement and in
consideration of the substantial expenses incurred and to be incurred by
BancGroup in connection therewith, Shareholder has agreed to enter into and
perform this Agreement solely in such person’s capacity as a Shareholder of
Acquired Corporation and not as a director and/or officer of Acquired
Corporation.
NOW
THEREFORE, for good and valuable consideration, the receipt, sufficiency and
adequacy of which are hereby acknowledged, the parties hereto agree as
follows:
1.
Agreement
to Vote Shares.
Shareholder shall vote or cause to be voted the Shares in favor of adoption
and
approval of the principal terms of the Merger Agreement and the Merger and
all
transactions relating thereto and against any business combination or other
reorganization of any kind involving Acquired Corporation or its subsidiaries
with any entity other than BancGroup at every meeting of Shareholders of
Acquired Corporation at which such matters are considered and at every
adjournment thereof, provided that the foregoing is subject to Shareholder’s
receipt of the Proxy Statement, as defined in the Merger Agreement.
2.
Voting
Trusts.
Shareholder agrees that Shareholder will not, nor will Shareholder permit any
entity directly or indirectly controlled by him or her, to place any Shares
in a
voting trust or subject the Shares to any agreement, arrangement or
understanding with respect to voting of the Shares inconsistent with this
Agreement.
3.
Sales
of Stock.
Shareholder agrees not to (i) make a “distribution” within the meaning of Rule
145 under the 1933 Act of the BancGroup Common Stock received by Shareholder
in
the Merger, or (ii) sell, transfer or otherwise dispose of shares of BancGroup
Common Stock received by Shareholder in the Merger, except pursuant to all
applicable provisions of the 1933 Act and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder. BancGroup, for a
period of two years from the Effective Time, shall timely file all reports
required to be filed by it under the Securities Act of 1934.
4.
Business
Protection and Non-Competition.
Paragraphs 4.3 and 4.4 of the provisions of this Section 4 shall apply only
to
those Directors who are not also Employees of an Acquired Corporation Company
and to Xxxxxx Xxxxxx. Neither Shareholder nor any corporation, partnership,
trust or other entity controlled by Shareholder, directly or indirectly,
shall:
4.1 at
any
time following the Effective Time of the Merger, without the prior written
consent of BancGroup, disclose confidential information regarding Acquired
Corporation or BancGroup to any third parties, except as required by law,
regulation or court order, in the defense of litigation for which Acquired
Corporation or BancGroup may be liable, or in any actions relating to this
Agreement or the Merger Agreement and the transactions contemplated hereby
or
thereby; or
4.2 for
the
period of ten (10) years from the Effective Time engage in any business which
uses the name “Commercial Bankshares, Inc.,” “Commercial Bank of Florida,” or
“Commercial Bank” or any name similar thereto or any name which could be readily
confused by the public with such names.
4.3 for
a
period of two years following the Effective Time of the Merger, solicit,
directly or indirectly, on its own behalf or on behalf of any other person
or
entity, management personnel employed by BancGroup or any of its subsidiaries
immediately after the Effective Time of the Merger for employment with any
other
business.
4.4 for
a
period of two years from the Effective Time of the Merger (i) engage in the
banking business (which term shall include the business of savings and loan
institutions, credit unions and other such financial institutions but not the
financial planning or investment advisory business if not conducted as an
employee, consultant or agent of a financial institution) other than on behalf
of BancGroup or its affiliates within the Designated Area (as hereinafter
defined), (ii) directly or indirectly own, manage, operate, control, be employed
by, or provide management or consulting services in any capacity to any firm,
corporation or other entity (other than BancGroup or its affiliates) with
respect to the conduct of banking business in the Designated Area, or (iii)
directly or indirectly solicit or otherwise intentionally cause any employee,
officer or member of the respective Boards of Directors of BancGroup or Acquired
Corporation or any of their affiliates to engage in any action prohibited under
(i) or (ii) of this paragraph 4.4, or (iv) solicit business that Resulting
Bank
or its affiliates does with its customers in the Designated Area; provided
that
the ownership of Shareholder as an investor of not more than one percent of
the
outstanding shares of stock of any corporation whose stock is listed for trading
on any securities exchange or is quoted on the automated quotation system of
the
National Association of Securities Dealers, Inc., or the shares of any
investment company as defined in Section 3 of the Investment Company Act of
1940, as amended, shall not in itself constitute a violation of Shareholder’s
obligations under this paragraph 4.4. As used herein, “Designated Area” shall
mean Dade and Broward Counties, Florida and any county contiguous
thereto.
5.
Specific
Performance and Remedies.
Shareholder acknowledges that it will be impossible to measure in money the
damages to BancGroup if Shareholder fails to comply with the obligations imposed
by this Agreement and that, in the event of any such failure, BancGroup will
not
have an adequate remedy at law or in damages. Accordingly, Shareholder agrees
that injunctive relief or other equitable remedy, in addition to remedies at
law
or in damages, is the appropriate remedy for any such failure and will not
oppose the granting of such relief on the basis that BancGroup has an adequate
remedy at law. In addition to all other rights or remedies which either party
may have against the other in an action to enforce the terms of this Agreement,
the prevailing party in such action shall be entitled to an award of all
reasonable litigation costs and attorneys' fees incurred in connection with
the
enforcement or defense of such action. In addition, after discussing the matter
with Shareholder, BancGroup shall have the right to provide a copy of this
Agreement to any third party that BancGroup reasonably believes to be, or to
be
contemplating, participating with Shareholder or receiving from Shareholder
assistance in violation of this Agreement. BancGroup shall also have the right
to advise such third party that BancGroup believes that participation by any
such persons with Shareholder in activities in violation of this Agreement
with
BancGroup set forth in this Agreement may give rise to claims by BancGroup
against such third party.
5A.
[This
Section 5A shall apply only to those Directors who are not also Employees of
an
Acquired Corporation Company]. Stock
Options.
Shareholder agrees that any stock options owned by Shareholder under the outside
director stock option plans of Acquired Corporation shall be converted to cash
in accordance with the provisions of Section 3.1(c) of the Merger Agreement,
provided that if the Merger does not close prior to May 25, 2007, the
Shareholder may exercise any stock options that by their terms expire on June
1,
2007.
6.
Term
of Agreement; Termination.
The
term of this Agreement shall commence on the date hereof and such term and
this
Agreement shall terminate upon the earlier to occur of (i) the Effective Time
of
the Merger, and (ii) the date on which the Merger Agreement is terminated in
accordance with its terms. Such termination shall not affect the provisions
of
Sections 3 and 4, which shall continue according to their terms and the
enforceability of which under the other provisions of this Agreement shall
also
continue. Termination shall not relieve any party from liability for any breach
of this Agreement prior to such termination.
7.
Future
Payments.
Except
for benefits set forth on Schedule A to this Agreement, Shareholder acknowledges
that after the Effective Time, no remuneration or other benefit of any kind
will
be paid to Shareholder, except in accordance with BancGroup=s
established policies and procedures.
8.
Entire
Agreement.
This
Agreement supersedes all prior agreements, written or oral, among the parties
hereto with respect to the subject matter hereof and contains the entire
agreement among the parties with respect to the subject matter hereof. This
Agreement may not be amended, supplemented or modified, and no provisions hereof
may be modified or waived, except by an instrument in writing signed by each
party hereto. No waiver of any provisions hereof by either party shall be deemed
a continuing waiver of any provision hereof by such party.
9.
Notices.
All
notices, requests, claims, demands or other communications hereunder shall
be in
writing and shall be deemed given when delivered personally, upon receipt of
a
transmission confirmation if sent by telecopy or like transmission and on the
next business day when sent by a reputable overnight courier service to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
If
BancGroup, to:
The
Colonial BancGroup, Inc.
Colonial
Corporate Campus
000
Xxxxxxxx Xxxx Xxxxxxxxx
Xxxxxxxxxx,
Xxxxxxx 00000
Facsimile:
(000)
000-0000
Attention:
Xxxxxx
X.
Xxxxxx, Chairman and CEO
Xxxxx
X.
Xxxxx, Xx. EVP-CFO
With
copies to:
Xxxxx
X.
Xxxxx, Xx.
EVP-General
Counsel
The
Colonial BancGroup, Inc.
Colonial
Corporate Campus
000
Xxxxxxxx Xxxx Xxxxxxxxx
Xxxxxxxxxx,
XX 00000
Facsimile: (000)
000-0000
And
Xxxx
X.
Xxxxxxx, III, Esq.
Miller,
Hamilton, Xxxxxx & Xxxx, L.L.C.
Xxx
Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx,
XX 00000
Facsimile:
(000) 000-0000
Email:
XxxxXxxxxxx@xxxxxxx.xxx
If
to
Shareholder, to:
_____________________________
_____________________________
_____________________________
_____________________________
With
copies to:
______________________________
______________________________
______________________________
______________________________
Telecopier:_____________________
Attention:______________________
10.
Miscellaneous.
10.1
Severability.
If any
provision of this Agreement or the application of such provision to any person
or circumstances shall be held invalid or unenforceable by a court of competent
jurisdiction, such provision or application shall be unenforceable only to
the
extent of such invalidity or unenforceability, and the remainder of the
provision held invalid or unenforceable and the application of such provision
to
persons or circumstances, other than the party as to which it is held invalid,
and the remainder of this Agreement, shall not be effected.
10.2
Capacity.
The
covenants contained herein shall apply to Shareholder solely in his or her
capacity as a Shareholder of Acquired Corporation, and no covenant contained
herein shall apply to Shareholder in his or her capacity as a director and/or
officer of Acquired Corporation.
10.3
Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original but all of which together shall constitute one and
the
same instrument.
10.4
Headings.
All
Section headings herein are for convenience of reference only and are not part
of this Agreement, and no construction or reference shall be derived
therefrom.
10.5
Choice
of Law.
This
Agreement shall be deemed a contract made under, and for all purposes shall
be
construed in accordance with, the laws of the State of Florida, without
reference to its conflicts of law principles.
10.6
Definitions.
Terms
not otherwise defined herein shall have the meanings assigned in the Merger
Agreement.
10.7
WAIVER
OF JURY TRIAL.
EACH OF
THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY
JURY
IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY AND DO HEREBY CONSENT TO TRIAL BY JUDGE ALONE
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF
ALABAMA.
[Signatures
on following Page]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
year
and day first above written.
THE
COLONIAL BANCGROUP, INC.
|
By:
|
Xxxxxx
X. Xxxxxx
|
|
Its:
|
Chairman
and CEO
|
_________________________________
(Print
or
Type Name)
_________________________________
(Signature)
