FORM OF SUPPORT AGREEMENT
Exhibit
10.1
FORM
OF
THIS SUPPORT AGREEMENT (this
“Agreement”) is
made and entered into as of ___________ ___, 2009, by and among SP Acquisition Holdings, Inc.,
a Delaware corporation (“SPAH”), Frontier Financial
Corporation, a Washington corporation (“FFC”), and the
undersigned shareholder of FFC (the “Shareholder”).
The
Shareholder desires that SPAH and FFC enter into an Agreement and Plan of
Merger, dated as of July 30, 2009, between SPAH and FFC (as the same may be
amended or supplemented, the “Merger
Agreement”). The Merger Agreement provides for the merger of
FFC with and into SPAH (the “Merger”). The
transactions described in the Merger Agreement are subject to the approvals of
the shareholders of FFC, the shareholders of SPAH and certain regulatory
authorities, as well as to the satisfaction of certain other conditions
described in the Merger Agreement.
The
Shareholder and FFC are executing this Agreement as an inducement and condition
to SPAH entering into, executing and performing the Merger Agreement and the
transactions (the “Transactions”)
contemplated therein, including, without limitation, the Merger.
NOW,
THEREFORE, in consideration of the execution and delivery by SPAH of the Merger
Agreement and the mutual covenants, conditions and agreements contained herein
and therein, and other good and valuable consideration, the receipt and
sufficiency of which are acknowledged, the parties, intending to be legally
bound, hereby agree as follows:
1. Representations
and Warranties. The Shareholder
represents and warrants to SPAH as follows:
(a) The
Shareholder is the record and/or beneficial owner of the number of shares,
(“Shareholder’s
Shares”), of FFC Common Stock set forth below such Shareholder’s name on
the signature page hereof. Except for the Shareholder’s Shares, the
Shareholder is not the record or beneficial owner of any shares of FFC Common
Stock.
(b) This
Agreement has been duly authorized, executed and delivered by, and constitutes a
valid and binding agreement of, the Shareholder, enforceable in accordance with
its terms.
(c) None
of the execution and delivery of this Agreement nor the consummation by the
Shareholder of the transactions contemplated hereby will result in a violation
of, or a default under, or conflict with, any contract, loan and credit
arrangements, Liens (as defined in subsection 1(d) below), trust, commitment,
agreement, understanding, arrangement or restriction of any kind to which the
Shareholder is a party or bound or to which the Shareholder’s Shares are
subject. Consummation by the Shareholder of the transactions
contemplated hereby will not violate, or require any consent, approval, or
notice under, any provision of any judgment, order, decree, arbitral award or
holding, statute, law, rule or regulation applicable to the Shareholder or the
Shareholder’s Shares.
(d) The
Shareholder’s Shares and the certificates representing the Shareholder’s Shares,
if any, are now, and at all times during the term hereof will be, held by the
Shareholder, or by a nominee or custodian for the benefit of such Shareholder,
free and clear of all pledges, Liens, security interests, claims, proxies,
voting trusts or agreements, understandings or arrangements or any other
encumbrances whatsoever (a “Lien”), except for
(i) any Liens arising hereunder, and (ii) Liens, if any, which have been
disclosed on Exhibit A hereto and which will be satisfied and released at
Closing.
(e) Except
for FFC’s engagement of Sandler X’Xxxxx + Partners, L.P. and Xxxxx, Xxxxxxxx
& Xxxxx, Inc. as FFC’s investment bankers in connection with the
Transactions, 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 Shareholder.
(f) The
Shareholder understands and acknowledges that SPAH is entering into the Merger
Agreement in reliance upon the Shareholder’s execution, delivery and performance
of this Agreement. The Shareholder acknowledges that the irrevocable
proxy set forth in Section 2 of this Agreement is granted in consideration for
the execution and delivery of the Merger Agreement by SPAH.
2. Voting
Agreements. The Shareholder
agrees with, and covenants to, SPAH as follows:
(a) At
any meeting of shareholders of FFC called to vote upon the Merger Agreement
and/or the Transactions or at any adjournment or postponement thereof or in any
other circumstances upon which a vote, consent or other approval with respect to
the Merger Agreement and/or the Transactions is sought (collectively, the “Shareholders’
Meeting”), the Shareholder shall vote (or cause to be voted) all of the
Shareholder’s Shares in favor of the Merger Agreement, and the approval of the
terms thereof and each of the Transactions, and shall not grant any proxies to
any third party, except where such proxies are expressly directed to vote in
favor of the Merger Agreement and the Transactions. The Shareholder hereby
waives all notice and publication of notice of any Shareholders’ Meeting to be
called or held with respect to the Merger Agreement and the
Transactions. The Shareholder hereby grants SPAH an irrevocable
proxy, coupled with an interest, to vote all of the Shareholder’s Shares in
favor of the Merger Agreement and the Transactions, and against any competing
proposals or other Acquisition Proposal or Acquisition Transaction.
(b) At
any meeting of FFC’s shareholders or at any adjournment thereof or in any other
circumstances upon which their vote, consent or other approval is sought, the
Shareholder shall vote (or cause to be voted) such Shareholder’s Shares against
(i) any Acquisition Proposal or Acquisition Transaction, including, without
limitation, any merger, consolidation or exchange agreement or merger or
exchange (other than the Merger Agreement and the Transactions), consolidation,
combination, sale of substantial assets, reorganization, recapitalization,
dissolution, liquidation or winding up of or by FFC, or (ii) any amendment of
FFC’s articles of incorporation or bylaws or other proposal or transaction
involving FFC, which amendment or other proposal or transaction would in any
manner delay, impede, frustrate, prevent or nullify the Merger Agreement, or any
of the Transactions (each of the foregoing in clause (i) or (ii) above, a “Competing
Transaction”).
2
3. Covenants. The Shareholder
agrees with, and covenants to, SPAH as follows:
(a) The
Shareholder shall not (i) exercise any FFC Rights, (ii) “Transfer” (which term
shall include, without limitation, for the purposes of this Agreement, any sale,
gift, pledge, hypothecation or other disposition or transfer of the
Shareholder’s Shares or any interest therein), or consent to any Transfer of,
any or all of the Shareholder’s Shares or any interest therein, except to SPAH
pursuant to the Merger Agreement; (iii) enter into any contract, option or other
agreement, arrangement or understanding with respect to any Transfer of any or
all of Shareholder’s Shares or any interest therein, except to SPAH, (iv) grant
any proxy, written consent, power of attorney or other authorization in or with
respect to Shareholder’s Shares or the right to vote or provide a written
consent or waiver with respect to Shareholders’ Shares, except for this
Agreement, or (v) deposit Shareholder’s Shares into a voting trust or enter into
any voting agreement, arrangement or understanding with respect to Shareholder’s
Shares; provided that Shareholder may Transfer any of Shareholder’s Shares (a)
by will or pursuant to the laws of descent and distribution, or (b) to any
family member of Shareholder or charitable institution; provided further, that
such transferee shall, prior to such Transfer, become a party to this Agreement
subject to its terms and obligations to the same extent as the Shareholder, by
executing and delivering to SPAH a counterpart to this Agreement in form and
substance satisfactory to SPAH.
(b) In
connection with the Merger, each of Shareholder’s Shares shall, pursuant to the
terms of the Merger Agreement, be exchanged for 0.0530 shares of SPAH Common
Stock. The Shareholder hereby waives any rights of appraisal or
rights to dissent from the Transactions that such Shareholder may
have.
(c) Except
as specifically permitted by Section 8.3 of the Merger Agreement solely in such
Shareholder’s capacity, if any, as a director of FFC, the Shareholder shall not,
nor shall it permit any investment banker, attorney or other adviser or
representative of the Shareholder to, directly or indirectly, (i) solicit,
initiate or encourage the submission of, any Acquisition Proposal, Acquisition
Transaction or Competing Transaction or (ii) participate in any discussions or
negotiations regarding, or furnish to any Person any information with respect
to, or take any other action to facilitate any inquiries or the making of any
proposal that constitutes, or may reasonably be expected to lead to, any
Acquisition Proposal, Acquisition Transaction or Competing Transaction, other
than the Merger and the other Transactions contemplated by the Merger Agreement
and other than any Transfer expressly permitted by the proviso to Section 3(a)
of this Agreement.
4. No Prior
Proxies. The Shareholder
represents, warrants and covenants that any proxies or voting rights previously
given in respect of the Shareholder’s Shares other than to SPAH are not
irrevocable, and that any such proxies or voting rights are hereby irrevocably
revoked.
5. Certain
Events. The Shareholder
agrees that this Agreement and the obligations hereunder shall attach to the
Shareholder’s Shares and shall be binding upon any person or entity to which
legal or beneficial ownership of Shareholder’s Shares shall pass, whether by
operation of law or otherwise, including the Shareholder’s successors or
assigns. In the event of any stock split, stock dividend, merger,
exchange, reorganization, recapitalization or other change in the capital
structure of FFC affecting the FFC Common Stock, or the acquisition of
additional shares of FFC Common Stock (including pursuant to the exercise or
exchange of any FFC Rights) or other voting securities of FFC by any
shareholder, the number of shares of FFC Common Stock subject to the terms of
this Agreement shall be adjusted appropriately and this Agreement and the
obligations hereunder shall attach to any additional shares of FFC Common Stock
or other voting securities of FFC issued to or acquired by the
Shareholder.
3
6. Stop
Transfer. FFC agrees with,
and covenants to, SPAH that FFC shall not register the transfer of any
certificate representing any of the Shareholder’s Shares, including any
additional shares of FFC Common Stock acquired by the Shareholder and pursuant
to any FFC Rights, unless such transfer is made to SPAH or otherwise in
compliance with this Agreement. The Shareholder agrees that, upon the
request of SPAH at any time, the Shareholder will tender to FFC any and all
certificates and instruments representing such Shareholder’s Shares and FFC
Rights and FFC will prominently inscribe upon such certificates the following
legend in substantially the following form:
THE
SHARES OF COMMON STOCK OF FRONTIER FINANCIAL CORPORATION. REPRESENTED
BY THIS CERTIFICATE OR HEREAFTER ACQUIRED IN RESPECT OF SUCH SHARES ARE SUBJECT
TO A SUPPORT AGREEMENT WITH SP ACQUISITION HOLDINGS, INC. DATED AS OF _________,
2009, 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 FRONTIER FINANCIAL CORPORATION.
7. Further
Assurances. The Shareholder
shall, upon request of SPAH and at SPAH’s reasonable expense, execute and
deliver any additional documents and take such further actions as may reasonably
be deemed by SPAH to be necessary or desirable to carry out the provisions
hereof and to vest in SPAH the power to vote such Shareholder’s Shares as
contemplated by Section 2 of this Agreement and the other irrevocable proxies
provided therein.
8. Termination. This Agreement,
and all rights and obligations of the parties hereunder, shall terminate upon
the first to occur of (x) the Effective Time of the Merger or (y) the date upon
which the Merger Agreement is terminated in accordance with its terms, in which
event the provisions of this Agreement shall terminate, except for Section 9
(excluding the proviso appearing at the end of the first sentence of subsection
9(g)), which shall survive for two years.
9. Miscellaneous.
(a) Capitalized
terms used and not otherwise defined in this Agreement shall have the respective
meanings assigned to them in the Merger Agreement. As used herein,
the singular shall include the plural and any reference to gender shall include
all other genders. The terms “include,” “including” and similar
phrases shall mean including without limitation, whether by enumeration or
otherwise.
4
(b) All
notices, requests, claims, demands and other communications under this Agreement
shall be in writing and shall be deemed given if delivered personally or sent by
reliable overnight delivery or by facsimile to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice): (i) if to SPAH or FFC, to the addresses set forth in Section 11.7 of
the Merger Agreement; and (ii) if to the Shareholder, to its address shown below
its signature on the last page hereof.
(c) The
headings contained in this Agreement are for convenience of reference only and
shall not affect in any way the meaning or interpretation of this
Agreement.
(d) This
Agreement may be executed in two or more counterparts, all of which shall be
considered one and the same agreement. A facsimile signature shall
constitute an original signature and shall have the same force and effect as an
original manual signature for all purposes.
(e) This
Agreement (including the documents and instruments referred to herein)
constitutes the entire agreement and understanding of the parties with respect
to the subject matter hereof, and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof, but shall not modify the Merger Agreement or supersede
any other agreement entered into as part of the Merger Agreement or
thereafter.
(f) This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of Delaware, without regard to the applicable conflicts of laws
principles thereof.
(g) This
Agreement shall be binding upon and inure to the benefit of SPAH, FFC and the
Shareholder, and their respective successors, assigns, heirs and personal and
legal representatives; provided Shareholders may not transfer or assign any
rights or interests in the Shares, except to SPAH or as expressly permitted by
this Agreement. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned, in whole or in
part, by operation of law or otherwise, by FFC or the Shareholder without the
prior written consent of the other parties, except as expressly contemplated by
Section 3(a) of this Agreement. Any assignment in violation of the
foregoing shall be void.
(h) The
Shareholder agrees that irreparable damage would occur and that SPAH would not
have any adequate remedy at law in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. The Shareholder acknowledges and agrees that any
breach or threatened breach of this Agreement will result in irreparable damage
to SPAH and its subsidiaries and that SPAH and any of its Subsidiaries shall be
entitled to exercise all rights and remedies, including one or more temporary
restraining orders and/or injunctions and other equitable relief, including
specific performance, to prevent breaches or threatened breaches by the
Shareholder of this Agreement and to enforce specifically the terms and
provisions of this Agreement in any state or federal court located in the State
of Delaware without the necessity of posting any bond or security (all of which
are waived by the Shareholder), and to exercise all other rights and remedies at
law or in equity, including, without limitation, the right to damages. In
addition, each of the parties hereto (i) consents to submit such party to the
personal jurisdiction of any federal court located in the State of Delaware in
the event any dispute arises out of this Agreement or any of the transactions
contemplated hereby, and (ii) agrees that such party will not attempt to deny or
defeat such personal jurisdiction by motion or other request for leave from any
such court
5
(i) If
any term, provision, covenant or restriction herein, or the application thereof
to any circumstance, shall, to any extent, be held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions herein and the application thereof to any
other circumstances, shall remain in full force and effect, shall not in any way
be affected, impaired or invalidated, and shall be enforced to the fullest
extent permitted by law.
(j) No
amendment, modification or waiver in respect of this Agreement shall be
effective against any party unless it shall be in writing and signed by such
party.
[Signatures
on following page.]
6
IN
WITNESS WHEREOF, the undersigned parties have executed and delivered this
Shareholder Support Agreement as of the day and year first above
written.
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
FRONTIER
FINANCIAL CORPORATION
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
“Shareholder”
|
|
|
[If
Natural Person]
|
|
|
Name:
|
|
[If
Entity]
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
Number
of Shares Beneficially Owned and Capacity of Ownership:
|
|
7
