EXHIBIT 10.1
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "AGREEMENT") is entered into as of February 22,
2005, among PRINCETON NATIONAL BANCORP, INC., a Delaware corporation
("PRINCETON"), SOMONAUK FSB BANCORP, INC., a Delaware corporation ("SBI"), and
each of SBI's directors and executive officers who own voting stock of SBI
(collectively referred to in this Agreement as the "PRINCIPAL STOCKHOLDERS," and
individually as a "PRINCIPAL STOCKHOLDER.")
RECITALS
A. As of the date hereof, each Principal Stockholder is the owner of the
number of shares of SBI's common stock, $10.00 par value per share ("SBI COMMON
STOCK"), as is set forth opposite such Principal Stockholder's name on the
signature page attached hereto and such total number of shares represents
approximately the percentage of the issued and outstanding shares of SBI's
voting stock that is also set forth thereon opposite such Principal
Stockholder's name.
B. Princeton is contemplating the acquisition of SBI by means of a merger
(the "MERGER") of SBI with and into Somonauk Acquisition, Inc., a Delaware
corporation and a wholly-owned subsidiary of Princeton ("ACQUISITION"), with and
into SBI, pursuant to an Agreement and Plan of Merger dated of even date
herewith (the "MERGER AGREEMENT").
C. Princeton is unwilling to expend the substantial time, effort and
expense necessary to implement the Merger, including applying for and obtaining
necessary approvals of regulatory authorities, unless all of the Principal
Stockholders enter into this Agreement.
D. Each Principal Stockholder believes it is in his or her best interest as
well as the best interest of SBI for Princeton to consummate the Merger.
AGREEMENTS
In consideration of the foregoing premises, which are incorporated herein
by this reference, and the covenants and agreements of the parties herein
contained, and as an inducement to Princeton to enter into the Merger Agreement
and to incur the expenses associated with the Merger, the parties hereto,
intending to be legally bound, hereby agree as follows:
SECTION 1. DEFINITIONS; CONSTRUCTION. All terms that are capitalized and
used herein (and are not otherwise specifically defined herein) shall be used in
this Agreement as defined in the Merger Agreement. The parties hereby
incorporate by this reference the principles of construction set forth in
Section 1.2 of the Merger Agreement.
SECTION 2. REPRESENTATIONS AND WARRANTIES. Each Principal Stockholder
represents and warrants that as of the date hereof, he or she:
(A) owns beneficially and of record the number of shares of SBI Common
Stock as is set forth opposite such Principal Stockholder's name on the
signature page attached hereto, all of which shares are free and clear of all
liens, pledges, security interests, claims, encumbrances, options, voting
agreements, proxies, agreements to sell and commitments of every kind
(collectively, "ENCUMBRANCES");
(B) has the sole, or joint with any other Principal Stockholder,
voting power with respect to such shares of SBI Common Stock, and that he or she
does not own or hold any rights to acquire any additional shares of SBI's
capital stock (by exercise of stock options or otherwise) or any interest
therein or any voting rights with respect to any additional shares; and
(C) has all necessary power and authority to enter into this Agreement
and further represents and warrants that this Agreement is the legal, valid and
binding agreement of such Principal Stockholder, and is enforceable against such
Principal Stockholder in accordance with its terms.
SECTION 3. VOTING AGREEMENT. Each Principal Stockholder hereby agrees that
at any meeting of SBI's stockholders however called, and in any action by
written consent of SBI's stockholders, such Principal Stockholder shall vote all
shares of SBI Common Stock now or at any time hereafter owned or controlled by
him or her:
(A) in favor of the Merger and the other Contemplated Transactions as
described in the Merger Agreement, and any action or agreement that would
reasonably be expected to facilitate the Contemplated Transactions;
(B) against any acquisition of any capital stock of SBI or the Bank
through purchase, merger, consolidation or otherwise, or the acquisition by any
method of a substantial portion of the assets of SBI or the Bank, in any such
case by any party other than Princeton or its Subsidiaries (an "ACQUISITION
TRANSACTION");
(C) against any action or agreement that would reasonably be expected
to result in a material breach of any covenant, representation or warranty or
any other obligation of SBI under the Merger Agreement; and
(D) against any action or agreement that would reasonably be expected
to impede or interfere with the Contemplated Transactions, including any: (i)
change in SBI's board of directors; (ii) change in SBI's present capitalization;
or (iii) other material change in SBI's corporate structure or business, in each
such case except as otherwise agreed to in writing by Princeton.
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SECTION 4. ADDITIONAL COVENANTS. Except as required by law, each Principal
Stockholder agrees that he or she will:
(A) not, and will not permit any of his or her Affiliates, prior to
the Effective Time to sell, assign, transfer or otherwise dispose of, create an
Encumbrance with respect to, or permit to be sold, assigned, transferred or
otherwise disposed of, any SBI Common Stock owned of record or beneficially by
such Principal Stockholder, whether such shares of SBI Common Stock are owned of
record or beneficially by such Principal Stockholder on the date of this
Agreement or are subsequently acquired by any method, except: (i) for transfers
by will or by operation of law (in which case this Agreement shall bind the
transferee); (ii) with the prior written consent of Princeton (which consent
shall not be unreasonably withheld), for any sales, assignments, transfers or
other dispositions necessitated by hardship; or (iii) as Princeton may otherwise
agree in writing;
(B) not, and will not permit any of his or her Affiliates, directly or
indirectly (including through its Representatives), to initiate, solicit or
encourage any discussions, inquiries or proposals with any third party relating
to an Acquisition Transaction, or provide any such person with information or
assistance or negotiate with any such person with respect to an Acquisition
Transaction or agree to or otherwise assist in the effectuation of any
Acquisition Transaction;
(C) not vote or execute any written consent to rescind or amend in any
manner any prior vote or written consent to approve or adopt the Merger
Agreement or any of the other Contemplated Transactions;
(D) at Princeton's request, use his or her best efforts to cause any
necessary meeting of SBI's stockholders to be duly called and held, or any
necessary consent of stockholders to be obtained, for the purpose of approving
or adopting the Merger Agreement and the other Contemplated Transactions;
(E) cause any of his or her Affiliates to cooperate fully with
Princeton in connection with the Merger Agreement and the Contemplated
Transactions; and
(F) execute and deliver such additional instruments and documents and
take such further action as may be reasonably necessary to effectuate and comply
with his or her respective obligations under this Agreement.
SECTION 5. TERMINATION. Notwithstanding any other provision of this
Agreement, this Agreement shall automatically terminate on the earlier of: (i)
the date of termination of the Merger Agreement as set forth in Article 11
thereof, as such termination provisions may be amended by SBI, Princeton and
Acquisition from time to time; or (ii) the Effective Time.
SECTION 6. REMEDIES. Each Principal Stockholder understands and
acknowledges that if he or she should breach any of his or her covenants
contained in this Agreement, the damage to Princeton would be indeterminable in
view of the inability to measure the ultimate value and benefit to Princeton
resulting from its contemplated future ownership and control of
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SBI, and that Princeton therefore would not have an adequate remedy at law to
compensate Princeton for any such breach. Each Principal Stockholder agrees that
in addition to any other remedy available to Princeton at law or in equity,
Princeton shall be entitled to specific performance of this Agreement by such
Principal Stockholder upon application to any court having jurisdiction over the
parties. Accordingly, each Principal Stockholder: (a) irrevocably waives, to the
extent permitted by law, any defense that he or she might have based on the
adequacy of a remedy at law that might be asserted as a bar to specific
performance, injunctive relief or other equitable relief; and (b) agrees to the
granting of injunctive relief without the posting of any bond and further agrees
that if any bond shall be required, such bond shall be in a nominal amount.
SECTION 7. 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 SBI, Princeton and all of the Principal
Stockholders.
SECTION 8. 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
Agreement and written agreements related thereto. Except for the Merger
Agreement, this Agreement supersedes any agreements among any of SBI, its
stockholders, Princeton or Acquisition concerning the acquisition, disposition
or control of any SBI Common Stock.
SECTION 9. ABSENCE OF CONTROL. Subject to any specific provisions of this
Agreement, it is the intent of the parties to this Agreement that neither
Princeton nor Acquisition by reason of this Agreement shall be deemed (until
consummation of the Contemplated Transactions) to control, directly or
indirectly, any other party and shall not exercise, or be deemed to exercise,
directly or indirectly, a controlling influence over the management or policies
of any such other party. Pursuant to Section 2.11 in the Merger Agreement,
nothing contained herein shall be deemed to grant Princeton an ownership
interest in any shares of SBI Common Stock.
SECTION 10. INFORMED ACTION. Each Principal Stockholder acknowledges that
he or she has had an opportunity to be advised by counsel of his or her choosing
with regard to this Agreement and the transactions and consequences contemplated
hereby. Each Principal Stockholder further acknowledges that he or she has
received a copy of the Merger Agreement and is familiar with its terms.
SECTION 11. 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.
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SECTION 12. COUNTERPARTS. This Agreement may be executed in 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.
SECTION 13. GOVERNING LAW. All questions concerning the construction,
validity and interpretation of this Agreement and the performance of the
obligations imposed by this Agreement shall be governed by the internal laws of
the State of Illinois applicable to agreements made and wholly to be performed
in such state without regard to conflicts of laws.
SECTION 14. JURISDICTION AND SERVICE OF PROCESS. Any action or proceeding
seeking to enforce any provision of, or based on any right arising out of, this
Agreement shall be brought only in the courts of the State of Illinois, County
of Bureau or, if it has or can acquire jurisdiction, in the United States
District Court serving the County of Bureau, and each of the parties consents to
the jurisdiction of such courts (and of the appropriate appellate courts) in any
such action or proceeding and waives any objection to venue laid therein.
Process in any action or proceeding referred to in the preceding sentence may be
served on any party anywhere in the world.
SECTION 15. SUCCESSORS; ASSIGNMENT. This Agreement shall be binding upon
and inure to the benefit of SBI and Princeton, and their successors and
permitted assigns, and the Principal Stockholders and their respective spouses,
executors, personal representatives, administrators, heirs, legatees, guardians
and other legal representatives. This Agreement shall survive the death or
incapacity of any Principal Stockholder. This Agreement may be assigned only by
Princeton, and then only to a Subsidiary of Princeton.
SECTION 16. DIRECTORS. The parties hereto acknowledge that each Principal
Stockholder is entering into this agreement solely in his or her capacity as SBI
Stockholders and, notwithstanding anything to the contrary in this Agreement,
nothing in this Agreement is intended or shall be construed to require any
Principal Stockholder, in his or her capacity as a director of SBI, to act or
fail to act in accordance with his or her fiduciary duties in such director
capacity. Furthermore, no Principal Stockholder makes any agreement or
understanding herein in his or her capacity as a director of SBI. For the
avoidance of doubt, nothing in this SECTION 16 shall in any way limit, modify or
abrogate any of the obligations of the Principal Stockholders hereunder to vote
the shares owned by him or her in accordance with the terms of the Agreement and
not to transfer any shares except as permitted by this Agreement.
[THIS SPACE LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
individually, or have caused this Agreement to be executed by their respective
officers, on the day and year first written above.
SOMONAUK FSB BANCORP, INC. PRINCETON NATIONAL BANCORP, INC.
By: /s/ Xxxxxxx Xxx By: /s/ Xxxx X. Xxxxxx
--------------------------------- ------------------------------------
Name: Xxxxxxx Xxx Name: Xxxx X. Xxxxxx
Title: President Title: President & Chief Executive
Officer
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[SIGNATURE PAGE OF VOTING AGREEMENT CONTINUED]
PERCENTAGE
PRINCIPAL STOCKHOLDERS SHARES OWNED OWNERSHIP
---------------------- ------------ ----------
/s/ Xxxxx X. Xxxxx 30 0.06%
----------------------------------------------------
Signature
Xxxxx X. Xxxxx
Printed Name
/s/ Xxxxxx Bieber 10 0.02%
----------------------------------------------------
Signature
Xxxxxx Bieber
Printed Name
/s/ Xxxxxx X. Xxxxxxx 352 0.70%
----------------------------------------------------
Signature
Xxxxxx X. Xxxxxxx
Printed Name
/s/ Xxxx Xxx 10 0.02%
----------------------------------------------------
Signature
Xxxx Xxx
Printed Name
/s/ Xxxxxxxx X. Xxxxx 140 0.28%
----------------------------------------------------
Signature
Xxxxxxxx X. Xxxxx
Printed Name
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PERCENTAGE
PRINCIPAL STOCKHOLDERS SHARES OWNED OWNERSHIP
---------------------- ------------ ----------
/s/ Xxxx X. Xxx 817 1.61%
----------------------------------------------------
Signature
Xxxx X. Xxx
Printed Name
/s/ Xxxxxxx Xxx 6,765 13.37%
----------------------------------------------------
Signature
Xxxxxxx Xxx
Printed Name
/s/ Xxxxxx X. Xxxxxxxxxxxx 420 0.83%
----------------------------------------------------
Signature
Xxxxxx X. Xxxxxxxxxxxx
Printed Name
/s/ Xxx Xxxxxx 10 0.02%
----------------------------------------------------
Signature
Xxx Xxxxxx
Printed Name
/s/ Xxxxxx X. Xxxxxxxxxxx 170 0.34%
----------------------------------------------------
Signature
Xxxxxx X. Xxxxxxxxxxx
Printed Name
/s/ Xxxxx X. Xxxxxxxxxxx 22 0.04%
----------------------------------------------------
Signature
Xxxxx X. Xxxxxxxxxxx
Printed Name
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