EXHIBIT 10.1
Standstill and Voting Agreement
This Standstill and Voting Agreement (this "Agreement") dated as of
December 5, 2002, is among Kankakee Bancorp, Inc., a Delaware corporation (the
"Company"), and the Company's Board of Directors (the "Board"), on one hand, and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Tontine Management L.L.C., TOntine Partners L.P., Tontine
Financial Partners, L.P. and Tontine Overseas Associates, L.L.C. (collectively,
the "Group," and individually, a "Group Member"), on the other hand.
Recitals
Whereas, the Company and the Group have agreed that it is in their mutual
interests to enter into this Agreement as hereinafter described;
Now therefore, in consideration of the Recital and the representations,
warranties, covenants and agreements contained herein and other good and
valuable consideration, the parties hereto mutually agree as follows:
Agreements
Section 1. Definitions. As used in this Agreement, the following terms
shall have the meanings indicated, unless the context otherwise requires:
(a) "Acquire" means every type of acquisition, whether effected by
purchase, exchange, operation of law or otherwise.
(b) "Acting in concert" means: (i) knowing participation in a
joint activity or conscious parallel action towards a common goal whether or not
pursuant to an express agreement; or (ii) a combination of pooling of voting or
other interests in the securities of an issuer for a common purpose pursuant to
any contract, understanding, relationship, agreement or other arrangement,
whether written or otherwise.
(c) "Affiliate" means a person or entity that directly, or
indirectly through one or more intermediaries, controls or is controlled by, or
is under common control with, one or more of the Group Members.
(d) "Bank" means KFS Bank, F.S.B., a federal savings bank with its
main office located in Kankakee, Illinois, which was formerly known as Kankakee
Federal Savings Bank.
(e) "Beneficial ownership" or "beneficially owned" mean all
capital securities of the Company owned or held in the name of a Group Member or
an associate thereof, individually or jointly with any other person; by any
trust in which the Group Member is a settlor, trustee or beneficiary; by any
corporation (whose shares are not publicly traded) in which the Group Member is
a stockholder (owning, together with all other Group Members and their
respective affiliates, more than five percent (5%) of the outstanding voting
power thereof), director or officer; by any partnership (whose partnership
interests are not publicly traded) in which the Group Member is a limited
partner (owning, together with all other Group Members and their respective
affiliates, more than five percent (5%) of the outstanding beneficial interests
thereof), or a general partner, employee or agent; or by any other entity in
which a Group Member holds, together with all other Group Members and their
respective affiliates, more than five percent (5%) of the outstanding beneficial
interests thereof.
(f) "Business day" means any day except Saturday, Sunday and any
day on which the Bank is authorized or required by law or other government
action to close.
(g) "Change in control" means: (i) any person or group becomes
the beneficial owner of any class of voting securities of the Company or the
Bank representing ten percent (10%) or more of the total number of votes that
may be cast for the election of the directors of the Company or the Bank; (ii)
in connection with any tender or exchange offer (other than an offer by the
Company or the Bank), merger or other business
combination, sale of assets or contested election, or any combination of the
foregoing, the persons who were directors of the Company or the Bank prior to
any such action cease to be a majority of the members of the board of directors
of the Company or the Bank, respectively; or (iii) stockholders of the Company
or the Bank approve a transaction pursuant to which substantially all of the
assets of the Company or the Bank will be sold.
(h) "Control" (including the terms "controlling," "controlled by,"
and "under common control with") means the possession, direct or indirect,
of the power to direct or cause the direction of the management, activities or
policies of a person or organization, whether through the ownership of capital
securities, by contract or otherwise.
(i) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(j) "Person" includes an individual, group acting in concert,
a corporation, a partnership, an association, a joint stock company, a trust, an
unincorporated organization or similar company, a syndicate or any other group
formed for the purpose of acquiring, holding or disposing of the equity
securities of the Company.
(k) "Transfer" means, directly or indirectly, to sell, gift,
transfer, assign, pledge, encumber, hypothecate or similarly dispose of (by
operation of law or otherwise), either voluntarily or involuntarily, or to enter
into any contract, option or other arrangement or understanding with respect to
the sale, gift, transfer, assignment, pledge, encumbrance, hypothecation or
similar disposition of (by operation of law or otherwise), any capital
securities, or any interest in any capital securities, of the Company; provided,
however, that a merger or consolidation in which the Company is a constituent
corporation shall not be deemed to be the transfer of any of the Company's
capital securities beneficially owned by the Group or a Group Member.
(l) "Vote" means to vote in person or by proxy, or to give or
authorize the giving of any consent as a stockholder on any matter.
Section 2. Representations and Warranties of the Group Members. The Group
Members hereby represent and warrant to the Company as follows:
(a) The Group and the Group Members, in the aggregate, beneficially
own, as of the date of this Agreement, 114,600 shares of the Company's common
stock, par value $0.01 per share. Except for these shares, neither the Group nor
any Group Member, nor any of their respective affiliates, has or has a right to
acquire any beneficial ownership interest in any capital securities of the
Company, and no such person has a right to vote any capital securities of the
Company.
(b) The Group and the Group Members have full power and
authority to enter into and perform their obligations under this Agreement, and
the execution and delivery of this Agreement by the Group and Group Members has
been duly authorized by the principals of the Group. This Agreement constitutes
a valid and binding obligation of the Group and the Group Members, subject to
the non-objection of the Office of Thrift Supervision ("OTS"), and the
performance of its terms shall not constitute a violation of any limited
partnership agreement, bylaws or any agreement or instrument to which the Group
or any Group Member is a party.
(c) There are no other persons who, by reason of their personal,
business, professional or other arrangement with the Group or any Group Member,
whether written or oral and whether existing as of the date hereof or in the
future, have agreed, explicitly or implicitly, to take any action on behalf of
or in lieu of the Group or any Group Member that would otherwise be prohibited
by this Agreement.
(d) Except for this Agreement, there are no arrangements,
agreements or understandings concerning the subject matter of this Agreement
between the Group (and/or any Group Member) and the Company.
Section 3. Representations and Warranties of the Company. The Company
hereby represents and warrants to the Group that the Company has full power and
authority to enter into and perform its obligations under this Agreement, and
that the execution and delivery of this Agreement by the Company has been duly
authorized by the Board. This Agreement constitutes a valid and binding
obligation of the Company and the Board
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and the performance of its terms shall not constitute a violation of the
Company's certificate of incorporation, bylaws or any agreement or instrument to
which it is a party.
Section 4. Covenants.
(a) Subject to subparagraph (b) of this Section, from the date
of this Agreement through the Expiration Date (as defined below), the Group and
each Group Member covenant and agree not to, and shall cause each of their
affiliates not to, directly or indirectly, alone or in concert with any other
affiliate, group or other person:
(i) acquire, offer or propose to acquire or agree to
acquire, directly or indirectly, whether by purchase, tender or exchange offer,
or through the acquisition of control of another person or entity (including by
way of merger or consolidation), the beneficial ownership of, or the right to
vote, any voting securities, direct or indirect rights or options to acquire any
voting securities, or securities or instruments convertible into voting
securities, of the Company if, after giving effect to the acquisition of such
voting securities (whether or not actually acquired), the Group would
beneficially own (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) in excess of 9.99% of the outstanding voting securities of the
Company; provided, however, that any increase in the Group's percentage
ownership of voting securities of the Company due to a redemption or repurchase
by the Company of any of its voting securities shall not be deemed to be an
acquisition by the Group of beneficial ownership of the Company's voting
securities;
(ii) transfer, or offer or propose to transfer or agree
to transfer, except in compliance with this Agreement, beneficial ownership of,
or the right to vote any capital securities of the Company owned as of the date
of this Agreement or hereafter acquired, whether acquired through the purchase
of any of the Company's capital securities, the acquisition of control of
another person or entity (including by way of merger or consolidation), or by
joining a partnership, syndicate or other group or otherwise, and the Group and
each Group member acknowledge and agree that any of the Company's capital
securities beneficially owned by them, whether acquired in compliance with or in
contravention of this Agreement, with or without actual knowledge, shall be
subject to the terms and conditions of this Agreement;
(iii) propose or seek to effect a merger, consolidation,
recapitalization, reorganization, sale, lease, exchange or other disposition of
substantially all the assets of or other business combination involving, or a
tender or exchange offer for securities of, the Company or any of its
subsidiaries or any material portion of its or such subsidiary's business or
assets or any other type of transaction that would result in a change in control
of the Company (any such action in this subparagraph being referred to herein as
a "Company Transaction Proposal");
(iv) seek to exercise any control or influence over the
management of the Company or the Board or any of the businesses, operations or
policies of the Company;
(v) present to the Company, its stockholders or any
third party any proposal constituting or that can reasonably be expected to
result in a Company Transaction Proposal;
(vi) seek to effect a change in control of the Company;
(vii) publicly suggest or announce its willingness or
desire to engage in a transaction or group of transactions or have another
person engage in a transaction or group of transactions that constitute or could
reasonably be expected to result in a Company Transaction Proposal, or take any
action that might require the Company to make a public announcement regarding
any such Company Transaction Proposal;
(viii) initiate, request, induce, encourage or attempt to
induce or give encouragement to any other person to initiate, or otherwise
provide assistance to any person who has made or is contemplating making, or
enter into discussions or negotiations with respect to, any proposal
constituting or that can reasonably be expected to result in a Company
Transaction Proposal;
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(ix) solicit proxies (or written consents) or assist or
participate in any other way, directly or indirectly, in any solicitation of
proxies (or written consents), or otherwise become a "participant" in a
"solicitation," or assist any "participant" in a "solicitation" (as such terms
are defined under the Exchange Act) in opposition to the recommendation or
proposal of the Board, or recommend or request or induce or attempt to induce
any other person to take any such actions, or seek to advise, encourage or
influence any other person with respect to the voting of (or the execution of a
written consent in respect of) any capital securities of the Company, or execute
any written consent in lieu of a meeting of the holders of any capital
securities of the Company or grant a proxy with respect to the voting of any
capital securities of the Company to any person other than a member of the
Board;
(x) initiate, propose, submit, encourage or otherwise
solicit stockholders of the Company for the approval of one or more stockholder
proposals or induce or attempt to induce any other person to initiate any
stockholder proposal, or seek election to or seek to place a representative or
other affiliate or nominee on the Board or seek removal of any member of the
Board;
(xi) form, join in or in any other way (including by
deposit of the Company's capital securities) participate in a partnership,
pooling agreement, syndicate, voting trust or other group with respect to any of
the Company's capital securities, or enter into any agreement or arrangement or
otherwise act in concert with any other person, for the purpose of acquiring,
holding, voting or disposing of any of the Company's capital securities;
(xii) join with or assist any person or entity, directly
or indirectly, in opposing, or make any statement in opposition to, any proposal
or director nomination submitted by the Board to a vote of the Company's
stockholders;
(xiii) join with or assist any person or entity, directly
or indirectly, in supporting or endorsing (including supporting, requesting or
joining in any request for a meeting of stockholders in connection with), or
make any statement in favor of, any proposal submitted to a vote of the
Company's stockholders that is opposed by the Board;
(xiv) vote for any nominee or nominees for election to
the Board, other than those nominated or supported by the Board, and no Group
Member shall consent to become a nominee for election as a director of the
Company, without the express written consent of the Company;
(xv) call, or participate in calling, any special
meeting of the stockholders of the Company;
(xvi) make any public statement, whether by press
release, comment to any news media or otherwise, regarding the affairs of the
Company or that reflects negatively against the Company or any subsidiary or the
Board or any subsidiary or any of the directors or officers of the Company or
any subsidiary; or
(xvii) advise, assist, encourage or finance (or arrange,
assist or facilitate financing to or for) any other person in connection with
any of the matters restricted by, or otherwise seek to circumvent the
limitations of, this Agreement.
(b) From the date of this Agreement and through the conclusion
of the Company's annual meeting of stockholders to be held in 2003, the Group
and each Group Member covenant and agree, and shall require each of their
affiliates, to vote and shall require any affiliate, group or other person
acting in concert with any Group Member to vote, all shares beneficially owned
in accordance with the recommendations of a majority of the members of the Board
then in office on any stockholder proposals that are made and on approval of
auditors.
Section 5. Directorship.
(a) The Company and the Board covenant and agree to increase
at its regularly scheduled board meeting to be held in December, 2002, the
number of directors from seven (7) to eight (8) members, to appoint a nominee
designated by the Group (the "Nominee") to fill the vacancy created by such
increase and to
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provide that the Nominee's term will expire at the Company's annual meeting of
stockholders to be held in 2004 (the "2004 Annual Meeting"), subject only to the
non-objection of the OTS to such appointment.
(b) The Company shall, upon execution of this Agreement,
notify the OTS in accordance with 12 C.F.R. (S) 563.60 et seq. of the
appointment of the Nominee to the Board, and shall promptly take any and all
other actions necessary to obtain, including the filing of any required notices,
forms or other instruments with the OTS and any other regulatory authority
having jurisdiction thereof, the approval or non-objection of which is required
for the Nominee to serve on the Board. The Group shall cause the Nominee to
provide such information as may reasonably be requested by the Company in order
for the Company to fulfill its obligations under 12 C.F.R. (S) 563.60 et seq.
(c) It is expressly agreed that the Nominee is not bound, and
no Replacement Director (as defined below) shall be bound, by the covenants,
obligations and duties imposed upon the Group in this Agreement with respect to
any actions taken by the Nominee or any Replacement Director solely in his or
her capacity as a director of the Company.
(d) If the OTS for any reason objects to the inclusion of the
Nominee on the Board, or if the Nominee for any reason terminates service as a
director of the Company prior to the 2004 Annual Meeting, the Company agrees to
appoint a replacement director selected by the Group (the "Replacement
Director"), subject to the approval of the remaining members of the Board, which
approval shall not be unreasonably withheld, to fill the resulting vacancy. All
of the provisions of this Section shall apply to any Replacement Director.
(e) In the event that the appointment of the Nominee or any
Replacement Director is not approved by the OTS within 90 days of delivery by
the Group or any Group Member to the Company of completed and executed forms and
disclosures necessary for submission to the OTS, this Agreement shall promptly
terminate.
Section 6. Notice of Breach, Remedies and Attorneys' Fees.
(a) The parties acknowledge the generally accepted principle
that a material breach by one party to a contract excuses further performance by
the other, but they expressly agree that an actual or threatened breach of this
Agreement by any party will give rise to irreparable injury that cannot
adequately be compensated by damages. Accordingly, in addition to any other
remedy to which it may be entitled, each party shall be entitled to seek a
temporary restraining order or injunctive relief to prevent a breach of the
provisions of this Agreement or to secure specific enforcement of its terms and
provisions.
(b) The Group (and each Group Member) expressly agree that
they will not be excused or claim to be excused from performance under this
Agreement as a result of any material breach by the Company unless and until the
Company is given written notice of such breach and ten (10) business days during
which time the Company may either cure such breach or obtain equitable relief.
If the Company seeks equitable relief, the Group (and each Group Member)
irrevocably stipulate that any failure to perform or any assertion by the Group
(or any Group Member) that they are excused from performing their obligations
under this Agreement would cause the Company irreparable harm, that the Company
shall not be required to provide further proof of irreparable harm in order to
obtain equitable relief and that the Group (and each Group Member) shall not
deny or contest that such actions would cause the Company irreparable harm. If,
after such ten (10) business day period, the Company has not either reasonably
cured such material breach or obtained equitable relief, the Group (or any Group
Member) may terminate this Agreement by delivery of written notice to Company.
(c) The Company expressly agrees that it will not be excused
or claim to be excused from performance under this Agreement as a result of any
material breach by the Group (or any Group Member) unless and until the Group
(and each Group Member) is given written notice of such breach and ten (10)
business days during which time the Group (or any Group Member) may either cure
such breach or obtain equitable relief. If the Group (or any Group Member) seeks
equitable relief, the Company irrevocably stipulates that any failure to perform
or any assertion by the Company that it is excused from performing its
obligations under this Agreement would cause the Group (and each Group Member)
irreparable harm, that the Group (or any Group Member) shall not be required to
provide further proof of irreparable harm in order to obtain equitable relief
and that the Company shall
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not deny or contest that such actions would cause the Group (and each Group
Member) irreparable harm. If, after such ten (10) business day period, the Group
(or the Group Member) has not either reasonably cured such material breach or
obtained equitable relief, the Company may terminate this Agreement by delivery
of written notice to the Group and each Group Member.
(d) If any party institutes an action to interpret this
Agreement, or to enforce its rights under or recover damages for breach of, this
Agreement, the prevailing party in such action or appeal shall be awarded all
costs and expenses of the litigation, including, but not limited to, attorneys'
fees, filing and service fees and witness fees. The prevailing party will be the
party that succeeds either affirmatively or defensively on claims having the
greatest value or importance, as determined by the court.
Section 7. Term. Except as otherwise expressly provided herein, this
Agreement shall be effective upon the execution of this Agreement by all parties
thereto as of the date set forth above and will remain in effect through the
first anniversary of such date (the "Expiration Date"). For the avoidance of
doubt, the parties agree that the expiration of this Agreement on the Expiration
Date without a breach thereof by the Group or any Group Member shall not result
in the removal of the Nominee or any Replacement Director, as the case may be,
from the Board.
Section 8. Notices. All notices, consents, waivers and other
communications under this Agreement must be in writing (which shall include
telecopier communication) and will be deemed to have been duly given if
delivered by hand or by nationally recognized overnight delivery service
(receipt requested), mailed by registered or certified U.S. mail (return receipt
requested) postage prepaid or telecopied if confirmed immediately thereafter by
also mailing a copy of any notice, request or other communication by U.S. mail
as provided in this Section:
Group: c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Company: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President and Chief Executive Officer
Kankakee Bancorp, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Barack ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other person or place as any party shall furnish to the other parties
hereto. Except as otherwise provided herein, all such notices, consents, waivers
and other communications shall be effective: (a) if delivered by hand,
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when delivered; (b) if mailed in the manner provided in this Section, five
business days after deposit with the United States Postal Service; (c) if
delivered by overnight express delivery service, on the next Business Day after
deposit with such service; and (d) if by telecopier, on the next business day if
also confirmed by mail in the manner provided in this Section.
Section 9. Governing Law. This Agreement shall be governed in all
respects, including validity, interpretation and effect, by the internal laws of
the State of Delaware, without regard to the principles of conflict of laws.
Section 10. Severability. If any term, provision, covenant or
restriction of this Agreement is held by any governmental authority or a court
of competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Agreement shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated.
Section 11. Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of and be enforceable by the successors and
assigns, and transferees by operation of law, of the parties. Except as
otherwise expressly provided for herein, this Agreement shall not inure to the
benefit of, be enforceable by or create any right or cause of action in any
person, including any stockholder of the Company, other than the parties hereto.
Section 12. Survival of Representations, Warranties and Agreements.
All representations, warranties, covenants and agreements made herein shall
survive the execution and delivery of this Agreement.
Section 13. Amendments. This Agreement may not be modified, amended,
altered or supplemented except upon the execution and delivery of a written
agreement executed by all of the parties hereto or their respective successors
and assigns.
Section 14. Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
Section 15. Duty to Execute. Each party agrees to execute any and all
documents, and to do and perform any and all acts and things necessary or proper
to effectuate or further evidence the terms and provisions of this Agreement.
[The remainder of this page is intentionally left blank.
Signatures are on following page.]
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the undersigned and duly authorized officers or representatives of the
undersigned as of the day and year first above written.
Kankakee Bancorp, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President and Chief
Executive Officer
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Tontine Management, L.L.C.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Member
Tontine Partners, L.P.
BY: Tontine Management, L.L.C.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Member
Tontine Financial Partners, L.P.
BY: Tontine Management, L.L.C.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Member
Tontine Overseas Associates, L.C.C.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Member
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