SHAREHOLDER AGREEMENT
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THIS SHAREHOLDER AGREEMENT (this "Agreement") is made and
entered into as of the 5th day of May, 1999, by and among
JEFFERSON SAVINGS BANCORP, INC., a Delaware corporation (the
"Company"), and XXXX X. XXXXXXX, THE XXXX XXXXXXX TRUST (the
"Trust"), XXXX XXXXXX, XXXXXXX XXXXX, XXXX X. XXXXX, THE XXXX X.
XXXXX FAMILY LIMITED PARTNERSHIP, THE XXXXXXX X. XXXXX DEFINED
BENEFIT PLAN, CONTANGO LIMITED PARTNERSHIP, XXXXXX XXXXXX, XXXXX
X. XXXXXX, and INTREPID, LTD. (individually, a "Shareholder,"
collectively, the "Shareholders").
RECITALS
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A. Each Shareholder beneficially owns that number of
shares of common stock, par value $0.01 per share, of the
Company (the "Common Stock") set forth opposite the name of such
Shareholder on the signature page hereof.
B. The Company has requested that the Shareholders
enter into this Agreement and has made the covenants set forth
herein in exchange for the Shareholders entering into this
Agreement.
C. The Board of Directors of the Company believes that
the arrangements and understandings set forth herein with
respect to the Company and the Shareholders are in the best
interest of the Company and all of its shareholders.
AGREEMENT
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In consideration of the foregoing and the mutual covenants
contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Company and the Shareholders hereby agree as follows:
ARTICLE I
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REPRESENTATIONS AND AGREEMENTS OF COMPANY
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SECTION 1.01. REPRESENTATIONS OF COMPANY. The Company and,
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with respect to the representation and warranty set forth in
Section 1.01(d) hereof, the present directors of the Company,
represent and warrant to the Shareholders that (a) it is a
corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, (b) it has
full power, right and authority to enter into this Agreement and
consummate and perform each of the transactions and obligations
of the Company provided for herein, (c) the execution, delivery
and performance of this Agreement has been duly authorized and
approved by all necessary corporate action of the Company, (d)
this Agreement constitutes a valid and binding obligation of the
Company and each of its present directors enforceable in
accordance with its terms, (e) there are no pending or, to its
best knowledge, threatened claims, actions, proceedings or
litigation against the Company, Jefferson Heritage Bank
("Jefferson Heritage"), any other subsidiary or affiliate of the
Company or any of the respective directors of the Company or its
subsidiaries or affiliates (other than those which, individually
or together, are not material to the Company and its
subsidiaries on a consolidated basis), (f) the execution,
delivery and performance of this Agreement does not violate the
Company's Certificate of Incorporation or Bylaws or any law,
rule, regulation or governmental requirement or result in a
breach of or default under any contract, agreement, commitment,
arrangement or understanding to
which the Company is a party or otherwise bound, and (g) the
number of directors of the Company is currently fixed at six
(6), but may range from three (3) to seven (7) as provided in
the Company's Certificate of Incorporation and Bylaws.
SECTION 1.02. NOMINATIONS AND RELATED MATTERS.
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(a) Promptly following the execution of this
Agreement by all parties hereto, the Board of Directors of the
Company shall (i) increase the size of the Board of Directors
from six (6) members to seven (7) members (to be comprised of
three (3) directors in Class I, two (2) directors in Class II,
and two (2) directors in Class III); (ii) nominate Xxxx X.
Xxxxxxx, Xxxx Xxxxxx and Xxxxx X. Xxxxxxxxxxx as the Company's
sole nominees for election as directors of the Company (to serve
as Class I directors of the Company with three year terms each
expiring at the annual meeting of shareholders in 2002) and
revoke the prior nomination of Xxx X. Xxxxxxxx; (iii) include
Messrs. Holland, Barkau and Xxxxxxxxxxx as the only slate of
nominees to be set forth in the Company's proxy statement
relating to its 1999 annual meeting of shareholders ("1999
Annual Meeting"); (iv) recommend each of Messrs. Holland, Barkau
and Xxxxxxxxxxx to the Company's shareholders for election as
directors at the 1999 Annual Meeting; (v) solicit proxies and
vote pursuant thereto in favor of the election of each of
Messrs. Holland, Barkau and Xxxxxxxxxxx as directors of the
Company in accordance with this Section 1.02; and (vi) convene
the 1999 Annual Meeting no later than July 3, 1999. As a result
of the foregoing, Messrs. Barkau, Holland and Xxxxxxxxxxx shall
be Class I directors, Messrs. Xxxxxxxx and Xxxxxx shall be Class
II directors and Messrs. XxXxx and Xxxxxx shall be Class III
directors. Messrs. Holland and Barkau and their respective
successors in office pursuant to Section 2.05 hereof are
referred to herein together as the "New Directors" and
individually as a "New Director". Each of the New Directors
shall, at the time of his election to the Board of Directors of
the Company, affirm his duty of confidentiality to the Company
with regard to any non-public, confidential Company information
by means of a confidentiality agreement reasonably satisfactory
to the Company and the New Directors (provided that the New
Directors shall have no obligation to sign such an agreement
unless a similar agreement shall have been signed by each of the
other outside directors).
(b) The Company shall not, for so long as the New
Directors are directors of the Company pursuant to this
Agreement, issue any shares of preferred stock of the Company,
or options or rights to acquire or securities convertible into
preferred stock of the Company, with features that provide the
holders thereof with any voting rights (including, without
limitation, the right to vote as a separate class to elect one
or more directors of the Company) (other than upon default in
the payment of dividends thereon); provided, however, that the
Company may issue preferred stock or options or rights to
acquire or securities convertible into preferred stock, of the
type described above, if such issuance shall have been approved
by either the unanimous vote of the entire Board of Directors of
the Company or by the affirmative vote of the holders of 80% of
the issued and outstanding shares of Common Stock entitled to
vote generally in the election of directors (or such greater
vote as may be required by applicable law or by the Company's
Certificate of Incorporation).
(c) The Board of Directors of the Company currently
intends to nominate Xxxxxxx X. Xxxxxxxx and Xxxxxx X. Xxxxxx for
election as directors at the annual meeting of shareholders of
the Company to be held in 2000 (the "2000 Annual Meeting") to
serve as Class II directors with three year terms each expiring
at the annual meeting of shareholders of the Company in 2003
and, if either of Messrs. Xxxxxxxx or Xxxxxx are unwilling or
unable to serve in such capacity at such time, then the Board of
Directors of the Company currently intends to nominate Xxx X.
Xxxxxxxx for election as a director of the Company at the 2000
Annual Meeting.
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SECTION 1.03. JEFFERSON HERITAGE. Immediately following
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each New Director's election to the Board of Directors of the
Company, the Company, as the sole shareholder of Jefferson
Heritage, shall take all necessary and appropriate action to
elect each New Director to the Board of Directors of Jefferson
Heritage and to cause each New Director to remain on such Board
of Directors for so long as he serves as a director of the
Company.
SECTION 1.04. APPOINTMENT TO COMMITTEES. The Board of
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Directors and/or the Chairman of the Company and Jefferson
Heritage shall appoint either of the New Directors (but not
both) to the current Executive Committee, the Outside Loan
Committee and the Employee Compensation and Benefit Committee of
the Company and/or Jefferson Heritage (as requested by the New
Directors) and shall allow either of the New Directors to remain
on such committees for so long as he serves as a director of the
Company. For so long as the New Directors are directors of the
Company pursuant to this Agreement, the Company shall not
consider matters or conduct business at committees of the
Company, Jefferson Heritage or any other subsidiary or affiliate
of the Company with the intent being to prevent or otherwise
"freeze out" the New Directors from participating in the
management of the affairs of the Company, Jefferson Heritage or
their respective subsidiaries to the same extent as the other
outside directors of the Company.
SECTION 1.05. NO REMOVAL OR RECLASSIFICATION. The Board
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of Directors of the Company shall not initiate or recommend or
submit to shareholders of the Company any proposal to remove
either of the New Directors as a director of the Company unless
the Board of Directors of the Company has determined, by clear
and convincing evidence, and by the unanimous affirmative vote
of the full Board of Directors of the Company (excluding the New
Directors from such vote) that the removal of either of them, as
the case may be, should be submitted to a vote of the
shareholders of the Company in accordance with Article XIII of
the Company's Certificate of Incorporation. In addition, for so
long as the New Directors are directors of the Company pursuant
to this Agreement, the Company and its present directors hereby
covenant and agree not to reconfigure, reclassify or increase or
decrease the size of the Board of Directors of the Company
except in accordance with the Certificate of Incorporation of
the Company (including, without limitation, a prohibition of any
reclassification of the Board of Directors of the Company that
shall not comply with Article XII.B of the Company's Certificate
of Incorporation).
SECTION 1.06. INSURANCE; STOCK OPTIONS AND OTHER BENEFITS.
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Immediately upon the election of the New Directors to the Boards
of Directors of the Company and Jefferson Heritage, the Company
shall effective as of the date of the 1999 Annual Meeting (a)
cause the New Directors to become covered under the Company's
and Jefferson Heritage's directors and officers liability
insurance policies and all other insurance policies covering any
directors of the Company and Jefferson Heritage, (b) allow the
New Directors to participate in all stock option, management
recognition and other plans to the same extent and on the same
terms and conditions as the other outside directors of the
Company shall be entitled to participate from and after the 1999
Annual Meeting (but in no event shall the New Directors be
entitled to receive any such benefits that shall have been
received by any director of the Company prior to the date
hereof), (c) pay the New Directors the same director's fees as
the other outside directors of the Company, (d) reimburse the
New Directors for their reasonable travel expenses in connection
with their attendance at meetings of shareholders, directors and
committees of the Company and Jefferson Heritage, and (e)
otherwise treat the New Directors the same as the other outside
directors of the Company and its subsidiaries from and after the
date hereof.
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SECTION 1.07. VIOLATION OF CERTIFICATE OF INCORPORATION.
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Provided that the Shareholders abide by and comply with the
terms hereof in all material respects, the Company and its
present directors represent, warrant and agree that none of them
will take any action or allege, claim, determine, deem or
declare the existence of this Agreement or any or all of the
actions or activities of any or all of the Shareholders pursuant
hereto or prior to the date hereof, or any or all of the
Shareholders taking any action subsequent to the date hereof to
comply with any filing, notice or disclosure requirement under
any statute, law, rule, regulation or governmental requirement
(including, without limitation, the filing of any Schedule 13D
with the Securities and Exchange Commission) (a) to result in
any or all of the Shareholders being a group or "acting in
concert," as that term is defined in Article XIV of the
Company's Certificate of Incorporation, (b) to treat any or all
of the Shareholders as, or make any allegation or claim that any
or all of the Shareholders are or have been, a group or "acting
in concert" under Article XIV of the Company's Certificate of
Incorporation or under any statute, law, rule, regulation or
governmental requirement, including, without limitation, the
federal securities laws and the rules and regulations of the
Securities and Exchange Commission and the Office of Thrift
Supervision, and/or (c) to reduce the voting power of any shares
of Common Stock owned beneficially or of record by the
Shareholders as of the date of this Agreement. In addition,
neither the Company nor any of its present directors will,
directly or indirectly, take or attempt to take, or induce or
encourage or attempt to induce or encourage any person to take,
any action, or make any allegation, claim or determination
otherwise prohibited by this Section 1.07. This Section 1.07
shall not, however, prohibit the Company or any of its present
directors from testifying under oath or otherwise defending
itself or himself in a legal proceeding not initiated by the
Company or any present director.
SECTION 1.08. REIMBURSEMENT FOR COSTS. Within one
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business day after the execution of this Agreement by each of
the parties hereto, the Company shall pay Xx. Xxxxxxx'x
attorney's fees and expenses incurred through the date hereof
relating to this Agreement, his proposed proxy contest, any
applications filed with any regulatory agencies and his
discussions and efforts to become a director of the Company (up
to an aggregate of One Hundred Thousand Dollars ($100,000));
subject to the delivery by Xx. Xxxxxxx to the Company of a copy
of a summary invoice for legal services actually rendered by his
attorneys in connection with the matters described above
(although such summary invoice need not disclose a description
or the nature or scope of any work performed by such attorneys
if to do so could jeopardize any applicable attorney-client
privilege). In addition, for so long as the New Directors are
directors of the Company pursuant to the terms hereof, the
Company shall promptly upon any New Director's request reimburse
the New Director for his attorneys' fees and expenses (up to an
amount for both New Directors in the aggregate equal to Fifteen
Thousand Dollars ($15,000) per calendar year) incurred in
situations and under circumstances where the New Director
reasonably believes after consultation with the Board of
Directors of the Company that he needs legal counsel separate
from the legal counsel of the Company in order to carry out his
duties as a director of the Company or Jefferson Heritage.
SECTION 1.09. ENFORCEMENT. For so long as the New
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Directors are directors of the Company pursuant to this
Agreement, neither the Company nor its present directors shall
file, join or otherwise participate as a party plaintiff, or
promote, recommend, induce, solicit, encourage or support any
other person to file, join or otherwise participate, in any
litigation, suit, proceeding or cause of action that alleges, or
otherwise relates to facts or circumstances alleging, (a) that
any of the terms of this Agreement are not enforceable in
accordance with their terms, or (b) that any Shareholder should
not enforce this Agreement in any particular case or
circumstance.
SECTION 1.10. SUCCESSOR DIRECTORS. The Company shall use
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its reasonable efforts, for so long as the New Directors are
directors of the Company pursuant to this Agreement, to cause
each person
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nominated by the Board of Directors of the Company or the
Nominating Committee to become a director of the Company to
agree to be bound by the provisions of this Agreement to the
same extent as the present directors are expressly bound by the
terms hereof.
SECTION 1.11. OTS FILING. Upon the execution of this
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Agreement by all parties, the Company shall promptly withdraw
all requests made by it or on its behalf for the confidential
portions of the OTS Filing (as defined in Section 2.01 hereof)
filed by Xx. Xxxxxxx with the OTS in connection with the 1999
Annual Meeting.
ARTICLE II
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REPRESENTATIONS AND AGREEMENTS OF SHAREHOLDERS
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SECTION 2.01. TERMINATION OF PROXY SOLICITATION AND
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WITHDRAWAL OF NOTICE. Within one business day after the
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execution of this Agreement by each of the parties hereto, Xx.
Xxxxxxx and the Trust shall terminate and discontinue their
proxy solicitation and withdraw all proxy materials filed with
the Securities and Exchange Commission (including, without
limitation, the material filed on April 14, 1999) (the "SEC
Filing"), and withdraw the Notice of Change in Control filed by
Xx. Xxxxxxx with the Office of Thrift Supervision in connection
with the 1999 Annual Meeting (the "OTS Filing"). The
Shareholders shall vote their shares of Common Stock at the 1999
Annual Meeting in favor of the nominees for Class I directors
set forth in Section 1.02 hereof (and shall provide evidence of
such vote as provided in Section 2.03(b) hereof).
SECTION 2.02. REPRESENTATIONS OF SHAREHOLDERS. Each
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Shareholder represents and warrants to the Company that (a) such
Shareholder has full power, right and authority to enter into
this Agreement and consummate and perform each of the
transactions and obligations of such Shareholder provided for
herein and that this Agreement constitutes a valid and binding
obligation of such Shareholder enforceable in accordance with
its terms, (b) such Shareholder is the beneficial owner of the
number of shares of Common Stock set forth opposite the name of
such Shareholder on the signature page hereto and does not,
directly or indirectly, beneficially own any other shares of
Common Stock, (c) the execution of this Agreement does not
violate any law, rule, regulation or governmental requirement or
result in a breach of or a default under any contract,
agreement, commitment, arrangement or understanding to which
such Shareholder is a party or otherwise bound (including,
without limitation, any agreement or understanding with the
record owner of any shares of Common Stock beneficially owned by
such Shareholder), and (d) the Shareholder has not engaged in
actions or activities prior to the date hereof with any one or
more other Shareholders such that the Shareholder and any such
other Shareholder or Shareholders are or have been a group or
"acting in concert," as that term is defined in Article XIV of
the Company's Certificate of Incorporation or under any statute,
law, rule, regulation or governmental requirement, including,
without limitation, the federal securities laws and the rules
and regulations of the Securities and Exchange Commission and
the Office of Thrift Supervision.
SECTION 2.03. AGREEMENTS OF SHAREHOLDERS. Anything herein
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to the contrary notwithstanding, during the period commencing on
the date hereof and continuing until the first day following the
date of the 2000 Annual Meeting, but in any event not beyond
July 31, 2000 if the 2000 Annual Meeting shall not have been
held by such date (such period referred to herein as the
"Restricted Period"), each Shareholder shall (and each
Shareholder shall cause the record holder of any shares of
Common Stock beneficially owned by the Shareholder with respect
to the shares of Common Stock now or at any time during the
Restricted Period hereof beneficially owned by the Shareholder
and held by the record holder to):
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(a) except in connection with any sale, merger,
consolidation, combination, share exchange or sale of
substantially all of the assets of the Company (other than any
such transactions involving only the Company and/or its
subsidiaries), not engage, initiate or otherwise participate in,
or induce or attempt to induce any other person to engage,
initiate or participate in, any proxy fight or contest or
consent solicitation involving the Company and shall not solicit
proxies or consents or become a "participant" in a
"solicitation" (as such terms are defined in Regulation 14A
under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) or induce or attempt to induce any other person
to solicit proxies or consents or become a "participant" in a
"solicitation" in opposition to the recommendation of a majority
of the Board of Directors of the Company, and shall not
initiate, propose or otherwise solicit shareholders of the
Company in connection with a shareholder proposal or induce or
attempt to induce any person to initiate any shareholder
proposal (and the term "person," as used in this Agreement,
shall mean any individual, partnership, corporation, limited
liability company, trust or other entity);
(b) vote or assent (in person, by proxy, by written
consent or otherwise) at the 2000 Annual Meeting (provided the
2000 Annual Meeting is held prior to July 31, 2000), all shares
of Common Stock owned of record or beneficially by such
Shareholder in favor of the election as directors of Xxxxxxx X.
Xxxxxxxx and Xxxxxx X. Xxxxxx or, if one of the foregoing
individuals is unable or unwilling to serve as a director of the
Company, Xxx X. Xxxxxxxx (Messrs. Xxxxxxxx, Xxxxxx and Xxxxxxxx
are referred to herein collectively as the "Proposed 2000
Nominees"). In the event that two or more of the Proposed 2000
Nominees shall be unable or unwilling to accept the nomination
for election as directors at the 2000 Annual Meeting such that
the two Class II director positions currently up for election at
the 2000 Annual Meeting would not include any two of the three
Proposed 2000 Nominees, then the Shareholders shall nevertheless
vote or assent as provided above in this Section 2.03(b) for the
nominees proposed by the Board of Directors of the Company or
its Nominating Committee, provided such nominees are determined
as provided in the next two sentences. The Board of Directors
of the Company or the Nominating Committee shall propose one new
individual as the management nominee in the event that two of
the Proposed 2000 Nominees shall be unable or unwilling to
accept the nomination for election as a director at the 2000
Annual Meeting and two new individuals as the management
nominees in the event that all three of the Proposed 2000
Nominees shall be unable or unwilling to accept the nomination
for election as directors at the 2000 Annual Meeting. If the
nominee or nominees, as the case may be, initially proposed by
the Board of Directors of the Company or the Nominating
Committee as provided in the preceding sentence shall not be
satisfactory to both of the New Directors, then the Board of
Directors of the Company or the Nominating Committee shall
propose a new nominee, or nominees, as the case may be, and such
new nominee or nominees, as the case may be, shall be the
management nominees for the 2000 Annual Meeting, and the
Shareholders shall vote or assent for such nominees at the 2000
Annual Meeting as provided above in this Section 2.03(b) (i.e.,
the New Directors shall only have the right to one objection for
each board seat to be filled by a person other than a Proposed
2000 Nominee and thereafter the Shareholders shall be obligated
to vote or assent all of their shares of Common Stock in favor
of such nominees at the 2000 Annual Meeting as provided above in
this Section 2.03(b)). The Shareholder shall, not later than
five (5) days prior to the date of such annual meeting, deliver
to the Secretary of the Company (i) in the case of shares of
Common Stock beneficially owned by the Shareholder, a copy of
the proxy card or other voting instructions evidencing the
Shareholder's vote or assent as provided in this Section 2.03(b)
which shall have been theretofore delivered by the Shareholder
to the record owner of the shares of Common Stock, or (ii) in
the case of shares of Common Stock owned of record by the
Shareholder, the original executed proxy card or other voting
instructions evidencing the Shareholder's vote or assent as
provided in this Section 2.03(b); and the Shareholder shall not
thereafter revoke or otherwise modify or terminate such proxy
card or other voting instructions;
(c) not nominate any individual as a candidate for
election to, or to fill a vacancy on, the Board of Directors of
the Company, or support, endorse or otherwise encourage the
election of any
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candidate for election to the Board of Directors of the Company
other than a candidate nominated pursuant to Section 2.03(b)
hereof; provided, however, that this Section 2.03(c) shall not
prohibit or be deemed to prohibit the New Directors from (i)
participating in the same manner as any other director of the
Company in the nomination process employed by the Board of
Directors of the Company to nominate candidates for election
to the Board of Directors of the Company, or (ii) making the
proposals described in Section 2.05 hereof;
(d) ensure, with respect to the shares of Common
Stock owned of record or beneficially by such Shareholder at any
time during the Restricted Period, that such shares of Common
Stock are counted as being present for the purposes of any
quorum required for shareholder action of the Company; and
(e) not take or attempt to take any action, directly
or indirectly, alone or in concert with any other person or
group, to circumvent the obligations of the Shareholders set
forth herein, and shall not seek, initiate, promote, recommend,
induce, encourage or support any person to undertake or attempt
to undertake any of the actions or activities which the
Shareholders are not permitted to engage in under this Section
2.03.
SECTION 2.04. AGREEMENT OF NOMINEES. The New Directors
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agree to provide the Company with any information required to be
disclosed with respect to them in the Company's Proxy Statement
for the 1999 Annual Meeting and each annual meeting of the
shareholders of the Company thereafter as long as they are a
director of the Company under Regulation 14A under the Exchange
Act.
SECTION 2.05. REPLACEMENT OF NEW DIRECTORS. In the event
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that, during the period between the date of the 1999 Annual
Meeting and the annual meeting of shareholders of the Company in
2002, either of the New Directors become unable or unwilling to
continue to serve as a director of the Company, then the vacancy
created as a result of such inability or unwillingness of such
New Director, as the case may be, shall be filled by the
affirmative vote of two-thirds (2/3) of the directors of the
Company then in office as provided in Article XII.A. of the
Company's Certificate of Incorporation; provided, however, that
the Board of Directors shall only consider persons to fill such
vacancy that shall have been proposed by the New Director that
then remains in office, that the Board of Directors shall not
unreasonably withhold its approval of any person proposed by the
remaining New Director and that the Board of Directors shall act
promptly (including, without limitation, calling a special
meeting of directors) in order to vote to fill such vacancy.
SECTION 2.06. ENFORCEMENT. For so long as the New
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Directors are directors of the Company pursuant to this
Agreement, no Shareholder shall file, join or otherwise
participate as a party plaintiff, or promote, recommend, induce,
encourage, solicit, or support any other person to file, join or
otherwise participate, in any litigation, suit, proceeding or
cause of action (including any derivative suit) that alleges, or
otherwise relates to facts or circumstances alleging, (i) that
any of the terms of this Agreement are not enforceable in
accordance with their terms, or (ii) that the Board of Directors
of the Company should not enforce this Agreement in any
particular case or circumstance.
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ARTICLE III
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MISCELLANEOUS
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SECTION 3.01. ENFORCEMENT; SPECIFIC PERFORMANCE. Each of
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the Shareholders and the Company expressly acknowledge that it
would be extremely difficult to measure the damages that might
result from any breach of the obligations of the parties
hereunder, and that any breach of such obligations by one party
would result in irreparable injury to the nonbreaching party for
which money damages could not adequately compensate. If,
therefore, a Shareholder, a present director or the Company
shall breach any of his, her or its obligations hereunder, then
the nonbreaching party or parties shall be entitled, in addition
to all other rights and remedies that he, she or it may have at
law or in equity, to have an injunction issued by any competent
court enjoining and restraining such breaching party and all
other persons involved therein from continuing such breach. If
any of the obligations of a Shareholder, a present director or
the Company hereunder, or any part thereof, or the application
thereof, shall be construed to be invalid, illegal or
unenforceable, then the other obligations of such Shareholder,
present director or the Company hereunder, or the other portion
thereof, or the application thereof, shall not be affected
thereby and shall be enforceable without regard thereto. If any
of the obligations of a Shareholder, a present director or the
Company hereunder shall be determined to be unenforceable
because of its scope, duration or other factor, then the court
making such determination shall have the power to reduce or
limit such scope, duration or other factor, and such obligation
shall then be enforceable against such Shareholder, present
director or the Company in its reduced or limited form.
SECTION 3.02. ATTORNEYS' FEES. In the event of any suit
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or other proceeding between the Company and/or any present
director, on the one hand, and any Shareholder or Shareholders,
on the other hand, with respect to any of the transactions
contemplated hereby or the subject matter hereof, the prevailing
party shall, in addition to such other relief as the court may
award, be entitled to recover reasonable attorneys' fees,
expenses and costs of investigation from the breaching party or
parties, as the case may be, and not any non-breaching party,
all as actually incurred, including, without limitation,
attorneys' fees, costs and expenses of investigation incurred in
trial or appellate proceedings. In the event that the Company
and/or any present director shall be entitled to fees, expenses
and costs under this Section 3.02, then such recovery shall be
against only the breaching Shareholder or Shareholders, as the
case may be, and not against any non-breaching Shareholder.
SECTION 3.03. FAIR CONSTRUCTION. This Agreement is the
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product of negotiation and shall be deemed to have been drafted
by all of the parties hereto. It shall be construed in
accordance with the fair meaning of its terms and its language
shall not be strictly construed against, nor shall ambiguities
be resolved against, any particular party.
SECTION 3.04. AMENDMENT AND MODIFICATION; ENTIRE
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AGREEMENT. This Agreement contains the entire agreement between
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the parties hereto regarding the subject matter hereof, and may
not be amended, altered, modified or terminated prior to the
expiration of the Term except by a writing signed by all parties
hereto or except as otherwise expressly provided herein. This
Agreement supersedes all prior agreements, representations,
warranties, statements, promises, information, arrangements and
understandings, whether oral or written, express or implied,
with respect to the subject matter hereof, all of which are
specifically integrated into this Agreement.
SECTION 3.05. COUNTERPARTS; FACSIMILE. This Agreement may
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be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute
one and the same instrument. For purposes of this Agreement, a
document (or signature page thereto) signed
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and transmitted by facsimile machine or telecopier shall be
treated as an original document. The signature of any party
thereon, for purposes hereof, shall be considered as an original
signature, and the document transmitted shall be considered to
have the same binding effect as an original signature on an
original document. At the request of any party, any facsimile
or telecopied document shall be re-executed in original form by
the parties who executed the facsimile or telecopied document.
No party may raise the use of a facsimile machine or telecopier
or the fact that any signature was transmitted through the use
of a facsimile or telecopier machine as a defense to the
enforcement of this Agreement or any amendment or other document
executed in compliance with this Section 3.05.
SECTION 3.06. SUCCESSORS. All provisions of this Agreement
------------ ----------
shall be binding upon, inure to the benefit of, and shall be
enforceable by or against, the parties hereto and their
respective successors, assigns, heirs, executors, administrators
or other legal representatives; provided, however, that no party
hereto may assign this Agreement without the prior written
consent of each of the parties hereto; provided further,
however, that anything herein to the contrary notwithstanding,
this Agreement shall not be binding upon a successor or assign
of the Company in connection with a merger, consolidation or
other business combination transaction to which the Company is a
party (an "Acquisition") provided (i) the Company shall not be
the surviving entity in the Acquisition, (ii) the counter-party
to the Acquisition shall not be an affiliate of the Company (as
defined in the Exchange Act), and (iii) the Acquisition shall
have been approved by the shareholders of the Company entitled
to vote thereon under the Delaware General Corporation Law or
pursuant to other applicable law or the rules of The Nasdaq
Stock Market or any national securities exchange or automated
quotation system on which the Common Stock shall then be listed
or quoted.
SECTION 3.07. GOVERNING LAW. This Agreement shall be
------------ -------------
governed by and construed in accordance with the laws of the
State of Delaware, without reference to conflicts of laws
principles.
SECTION 3.08. PUBLIC ANNOUNCEMENTS. Promptly following
------------ --------------------
execution of this Agreement, the Company shall issue a press
release in the form attached hereto as Exhibit A. The Company,
each of its present directors and each of the Shareholders
agrees not to (i) make any public statement that is contrary to
such press release, or (ii) make any public statement or issue
any press release concerning the subject matter hereof which
contains any untrue information or statements regarding the
other parties hereto or their representatives.
SECTION 3.09. TERMINATION. This Agreement, and the
------------ -----------
covenants, agreements and obligations contained herein, shall
terminate automatically, without the need for any further action
or writing by any party hereto, if both of the New Directors are
not elected to the Board of Directors of the Company at the 1999
Annual Meeting and are not elected by the Company as directors
of Jefferson Heritage as required by this Agreement (provided
that the Shareholders shall have complied with the voting
requirements of Section 2.01 hereof and the Company and its
present directors shall have complied with their obligations set
forth in Sections 1.02(a) and 1.03 hereof).
SECTION 3.10. HEADINGS. The headings contained in this
------------ --------
Agreement have been inserted solely for ease of reference and
shall not be considered in the interpretation, construction or
enforcement of this Agreement.
[Signature pages follow on page 10.]
9
IN WITNESS WHEREOF, the parties hereto have executed,
entered into and delivered this Agreement on the day and year
first above written.
JEFFERSON SAVINGS BANCORP, INC.,
A DELAWARE CORPORATION
By: /s/ Xxxxx X. XxXxx
------------------------------------
Xxxxx X. XxXxx
Chairman and Chief Executive Officer
/s/ Xxxx X. Xxxxxxx
------------------------------------
XXXX X. XXXXXXX
THE XXXX X. XXXXXXX TRUST
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Trustee
Address:
000 Xxxxx Xxxxxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Number of shares beneficially owned:
411,200
Name of record holder and number of
shares held:
The Xxxx X. Xxxxxxx Trust: 100
Solomon Xxxxx Xxxxxx: 411,100
10
/s/ Xxxx Xxxxxx
---------------------------------------------
* XXXX XXXXXX
Address:
000 X. Xx. Xxxxx
X.X. Xxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Number of shares beneficially owned: 17,978
Name and address of record holder:
Xxxxxxx Xxxxxx & Co., Inc.
X.X. Xxx 0000
Xxxxxxxxxxxx, XX 00000-0000
*Xxxx Xxxxxx Cust For Xxxxx X. Xxxxxx UILUTMA
*Xxxx Xxxxxx Cust For Xxxx X. Xxxxxx UILUTMA
/s/ Xxxxxxx Xxxxx
---------------------------------------------
XXXXXXX XXXXX
Address:
0000 Xxx Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Number of shares beneficially owned: 200
Name and address of record holder:
Same as above
XXXXXXX X. XXXXX DEFINED BENEFIT PLAN
By: /s/ Xxxx X. Xxxxx
------------------------------------
Xxxx X. Xxxxx
Trustee
Address:
0000 Xxxxxxx
Xxxxxx Xxxx, XX 00000
Number of shares beneficially owned: 25,000
Name and address of record holder:
Same as above
11
THE DRAKE FAMILY LIMITED PARTNERSHIP
By: DRAKE FAMILY MANAGEMENT CO.
(n/k/a ALTA TIERRA CO.)
general partner
By: /s/ Xxxx X. Xxxxx
------------------------------------
Xxxx X. Xxxxx
Vice President
Address:
0000 Xxxxxxx
Xxxxxx Xxxx, XX 00000
Number of shares beneficially owned: 938,600
Name and address of record holder:
Same as above
CONTANGO LIMITED PARTNERSHIP
By: ALTA TIERRA CO.
general partner
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Xxxxxxx Xxxxx
President
Number of shares beneficially owned: 938,600
Name and address of record holder:
Contango Limited Partnership
0000 Xxxxxxx
Xxxxxx Xxxx, XX 00000
12
/s/ Xxxx X. Xxxxx
---------------------------------------------
XXXX X. XXXXX
Address:
0000 Xxxxxxx
Xxxxxx Xxxx, Xxxxx 00000
Number of shares beneficially owned: 963,800
Name and address of record holder:
Same as above
/s/ Xxxxxx Xxxxxx
---------------------------------------------
XXXXXX XXXXXX
/s/ Xxxxx X. Xxxxxx
---------------------------------------------
XXXXX X. XXXXXX
Address:
#7 Wild Tamarind Drive
Camperdown Heights, Nassau, Bahamas
Number of shares beneficially owned: 748,500
Name and address of record holder:
Intrepid Ltd.
X.X. Xxx X00000
Xxxxx 0, Insurance Management Bldg.
Pioneers Way, Grand Bahama
Freeport, Bahamas
13
INTREPID, LTD.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Xxxxxx X. Xxxxxx
Chief Executive Officer, Intrepid Ltd.
Address:
#7 Wild Tamarind Drive
Camperdown Heights, Nassau, Bahamas
Number of shares beneficially owned: 748,500
Name and address of record holder:
Intrepid Ltd.
X.X. Xxx X00000
Xxxxx 0, Xxxxxxxx Xxx
Xxxxx Xxxxxx, Freeport, Bahamas
Each of the undersigned directors and, if
applicable, officers of the Company hereby
signs this Agreement and is a party hereto
in his capacity as a director and, if
applicable, officer of the Company and solely
for the purpose of (a) agreeing to comply
with and be bound by his covenants,
agreements and obligations set forth in this
Agreement, and (b) making his representations
and warranties set forth in this Agreement.
/s/ Xxxxx X. XxXxx
---------------------------------------------
Xxxxx X. XxXxx
/s/ Xxxxx X. Xxxx
---------------------------------------------
Xxxxx X. Xxxx
/s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------------
Xxxxxxx X. Xxxxxxxx
/s/ Xxxxx X. Xxxxxxxxxxx
---------------------------------------------
Xxxxx X. Xxxxxxxxxxx
/s/ Xxxxxxx X. Xxxxxx, Xx.
---------------------------------------------
Xxxxxxx X. Xxxxxx, Xx.
/s/ Xxxxxx X. Xxxxxx
----------------------------------------------
Xxxxxx X. Xxxxxx
14
EXHIBIT A
---------
JEFFERSON SAVINGS NAMES SLATE OF NOMINEES;
------------------------------------------
SHAREHOLDER WITHDRAWS PROXY FILINGS
-----------------------------------
St. Louis, May 5, 1999 - - Jefferson Savings Bancorp, Inc.
(Nasdaq:JSBA) announced that it reached an agreement with Xxxx
Xxxxxxx pursuant to which he agreed to withdraw the proxy and
regulatory filings he made recently in his attempt to elect a
slate of his nominees to the board. As part of the agreement
the Company agreed to increase the size of the board from six to
seven members and to nominate and support Holland and one of his
other proposed nominees, Xxxx Xxxxxx, for election as directors
at the 1999 annual meeting. The Company's third nominee for
election in 1999 will be Xxxxx Xxxxxxxxxxx, a current member of
the board. The six individual shareholders who entered into the
agreement and who own in the aggregate approximately 22% of the
Company's stock also agreed to vote in favor of the Company's
proposed slate of directors at the June 21 annual meeting and
not to engage in a proxy contest at next year's annual meeting.
Xxxxx X. XxXxx, chairman and chief executive officer of the
Company, commented, "We are pleased that this matter has been
resolved amicably and in the spirit of cooperation by all
parties involved. This is a positive result for the Company.
We have resolved this matter without the significant additional
costs and diversion of management attention that oftentimes
results from a prolonged proxy contest and, at the same time, we
are pleased to welcome two very fine businessmen to our board.
We expect that Xx. Xxxxxxx and Xx. Xxxxxx will make a meaningful
contribution to the organization."
Holland said, "I am pleased to serve on the board and I
commend the current directors for the professional manner in
which they approached this situation. I am committed to
enhancing shareholder value and representing the best interests
of all of the shareholders. I look forward to the opportunity
to work productively with management and my fellow board
members."
Jefferson Savings Bancorp has total assets in excess of
$1.5 billion and operates 10 offices in Missouri and 19 offices
in Texas.
A-1
