EXHIBIT 2.3
Exhibit C
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NUTMEG FEDERAL SAVINGS & LOAN ASSOCIATION
STOCKHOLDER AGREEMENT
This STOCKHOLDER AGREEMENT, dated as of May 30, 2000, is entered into
by and among NewMil Bancorp, Inc., a Delaware corporation ("NewMil"), and the 15
stockholders of Nutmeg Federal Savings & Loan Association, a federally chartered
savings association ("Nutmeg"), named on Schedule I hereto (collectively, the
"Stockholders"), who are the directors and executive officers of Nutmeg and the
only "affiliates" (for purposes of Rule 145 under the Securities Act of 1933, as
amended) of Nutmeg.
WHEREAS, NewMil, New Milford Savings Bank, a wholly owned subsidiary
of NewMil ("NMSB"), and Nutmeg have entered into an Agreement and Plan of
Merger, dated as of the date hereof (the "Agreement"), which is conditioned upon
the execution of this Stockholder Agreement and which provides for, among other
things, the acquisition of Nutmeg by NewMil, to be effected by the merger of
Nutmeg with and into NMSB (the "Merger"); and
WHEREAS, in order to induce NewMil to enter into or proceed with the
Agreement, each of the Stockholders agrees to, among other things, vote in favor
of the Agreement, the Merger and the other transactions contemplated by the
Agreement in his/her capacity as a stockholder of Nutmeg;
NOW, THEREFORE in consideration of the premises, the mutual covenants
and agreements set forth herein and other good and valuable consideration, the
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Ownership of Nutmeg Common Stock. Each Stockholder represents and
warrants that the number of shares of Nutmeg common and preferred stock, par
value $.003 and $.005, respectively per share ("Nutmeg Capital Stock"), set
forth opposite such Stockholder's name on Schedule I hereto is the total number
of shares of Nutmeg Capital Stock over which such person has "beneficial
ownership" within the meaning of Rule 13d-3 under the Securities Exchange Act of
1934, as amended, except that the provisions of Rule 13d-3(d)(1)(i) shall be
considered without any limit as to time.
2. Agreements of the Stockholders. Each Stockholder covenants and
agrees that:
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(a) Such Stockholder shall, at any meeting of the holders of Nutmeg
Capital Stock called for the purpose, vote or cause to be voted all shares of
Nutmeg Capital Stock in which such Stockholder has the sole or shared right to
vote (whether owned as of the date hereof or hereafter acquired) (i) in favor of
the Agreement, the Merger and the other transactions contemplated by the
Agreement and (ii) against any plan or proposal pursuant to which Nutmeg is to
be acquired by or merged with, or pursuant to which Nutmeg proposes to sell all
or substantially all of its assets and liabilities to, any person, entity or
group (other than NMSB or any affiliate thereof).
(b) Such Stockholder shall not, prior to the consummation of the
Merger or the earlier termination of this Stockholder Agreement in accordance
with its terms, sell, pledge, transfer or otherwise dispose of his/her shares of
Nutmeg Capital Stock over which such stockholder has sole or shared dispositive
power; provided, however, that this Section 2(b) shall not apply to a pledge
existing as of May 26, 2000.
(c) Such Stockholder shall not in his/her capacity as a stockholder of
Nutmeg directly or indirectly encourage or solicit or hold discussions or
negotiations with, or provide any information to, any person, entity or group
(other than NewMil or an affiliate thereof) concerning any merger, sale of all
or substantially all of the assets or liabilities not in the ordinary course of
business, sale of shares of capital stock or similar transaction involving
Nutmeg. Nothing herein shall impair such Stockholder's fiduciary obligations
as a director of Nutmeg.
(d) Such Stockholder shall use his/her reasonable best efforts to take
or cause to be taken all action, and to do or cause to be done all things
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the Merger contemplated by the Agreement.
(e) Such Stockholder shall comply with all applicable federal and
state securities laws in connection with any sale of NewMil common stock, par
value $.50 per share ("NewMil Common Stock") received in exchange for Nutmeg
Capital Stock in the Merger, including the trading and volume limitations as to
sales by affiliates contained in Rule 145 under the Securities Act of 1933, as
amended.
(f) Except as set forth in the attached Schedule II, any such
Stockholder who presently intends to elect to receive NewMil Common Stock in the
Merger has no present plan or intent, and as of the effective time of the
Merger, shall have no present plan or intent, to engage in a sale, exchange,
transfer (other than an intrafamily gift), distribution (including a
distribution by a corporation to its shareholders), redemption, or reduction in
any way of such Stockholder's risk of ownership by short sale or otherwise, or
other disposition (not including a bona fide pledge), directly or indirectly,
with respect to any of the shares of NewMil Common Stock to be received by such
Stockholder upon the Merger (except for cash received for fractional shares).
3. Termination. The parties agree and intend that this Stockholder
Agreement is a valid and binding agreement enforceable against the parties
hereto and that damages and other remedies at
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law for the breach of this Stockholder Agreement are inadequate. This
Stockholder Agreement may be terminated at any time prior to the consummation of
the Merger by the mutual written consent of the parties hereto and shall be
automatically terminated in the event that the Agreement is terminated in
accordance with its terms; provided, however, that if the holders of Nutmeg
Capital Stock fail to approve the Agreement or Nutmeg fails to hold a
stockholders meeting to vote on the Agreement, then (i) Section 2(a) clause (ii)
hereof shall continue in effect as to any plan or proposal received by Nutmeg
from any person, entity or group (other than NewMil or any affiliate thereof)
prior to the termination of the Agreement or within 135 days after such
termination and (ii) Section 2(b) hereof shall continue in effect, except upon
consummation of such plan or proposal.
4. Notices. Notices may be provided to NewMil and the Stockholders in
the manner specified in the Agreement, with all notices to the Stockholders
being provided to them at the addresses set forth at Schedule I.
5. Governing Law. This Stockholder Agreement shall be governed by the
laws of the State of Delaware, without giving effect to the principles of
conflicts of laws thereof.
6. Counterparts. This Stockholder Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement
and each of which shall be deemed an original, and shall become effective when
counterparts have been signed by each of the parties and delivered to the other
party, it being understood that all parties need not sign the same counterpart.
7. Headings. The Section headings contained herein are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Stockholder Agreement.
8. Regulatory Approval. If any provision of this Stockholder Agreement
requires the approval of any regulatory authority in order to be enforceable,
then such provision shall not be effective until such approval is obtained;
provided, however, that the foregoing shall not affect the enforceability of any
other provision of this Stockholder Agreement.
IN WITNESS WHEREOF, NewMil Bancorp, Inc., by a duly authorized
officer, and each of the Stockholders have caused this Stockholder Agreement to
be executed and delivered as of the day and year first above written.
NEWMIL BANCORP, INC.
By:/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Its: Chairman, President and Chief Executive Officer
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By:/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Its: Chairman, President and Chief Executive Officer
STOCKHOLDERS:
/s/ Xxxxxx Xxxx /s/ Xxxx X. Xxxxx
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Xxxxxx Xxxx Xxxx X. Xxxxx
/s/ Xxxxxxxxxxx X. Xxxxxxxxxxx /s/ Xxxxxxx Xxxxxxxx
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Xxxxxxxxxxx X. Xxxxxxxxxxx Xxxxxxx Xxxxxxxx
/s/ Xxxx X. Xxxxx /s/ Xxxxxx X. Xxxxxxxx
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Xxxx X. Xxxxx Xxxxxx X. Xxxxxxx
/s/ Xxxx X. Deep /s/ Xxxxxxx Xxxxxxxxxx
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Xxxx X. Deep Xxxxxxx Xxxxxxxxxx
/s/ Xxxx X. Xxxx /s/ Xxxxx X. Xxxxxx
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Xxxx X. Xxxx Xxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxxxx /s/ Xxxxxxx X. Xxxxx, Xx.
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Xxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxx, Xx.
/s/ Xxxx X. Xxx /s/ Xxxxxxx X. Xxxxxxxx
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Xxxx X. Xxx Xxxxxxx X. Xxxxxxxx
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
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SCHEDULE I
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Number of Shares of Nutmeg
Name and Address of Stockholder Stock Beneficially Owned*
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Xxxxxx Xxxx 105,384
Xxxx X. Xxxxx 65,270
Xxxxxxxxxxx X. Xxxxxxxxxxx 124,662
Xxxxxxx Xxxxxxxx 35,194
Xxxx X. Xxxxx 11,596
Xxxxxx X. Xxxxxxx 45,704
Xxxx X. Deep 107,292
Xxxxxxx Xxxxxxxxxx 132,876
Xxxx X. Xxxx 39,789
Xxxxx X. Xxxxxx 148,776
Xxxxx X. Xxxxxxxx 38,301
Xxxxxxx X. Xxxxx, Xx. 117,773
Xxxx X. Xxx 53,835
Xxxxxxx X. Xxxxxxxx 49,025
Xxxxx Xxxxx 39,064
* Includes Common stock, common equivalent of Preferred stock and all
unexercised options whether vested or unvested.
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SCHEDULE II
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[None.]
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