SUPPORT AGREEMENT
Exhibit
99.2
This
Support Agreement, dated as of February ___, 2017 (this
“Agreement”), is made and
entered into by and between Old Line Bancshares, Inc., a Maryland
corporation (“OLB”), and _________________ (the
“Stockholder”), as an
individual stockholder of DCB Bancshares, Inc. (“DCB”),
a Maryland corporation.
WHEREAS,
concurrently herewith, OLB and DCB are entering into an Agreement
and Plan of Merger (as such agreement may hereafter be amended and
supplemented from time to time, the “Merger Agreement”),
pursuant to which, among other things, DCB will be merged with and
into OLB, with OLB continuing as the surviving company (the
“Merger”);
and
WHEREAS, the
Stockholder is a member of the board of directors of DCB and its
subsidiary, Damascus Community Bank
(“DCBank”);
WHEREAS, as a
stockholder of DCB, the Stockholder will receive a significant
benefit from the transaction described in the Merger Agreement;
and
WHEREAS, to induce
OLB to enter into the Merger Agreement, and as a condition to the
transactions contemplated thereby, the Stockholder has agreed to
enter into this Agreement.
NOW,
THEREFORE, in consideration of the premises and mutual covenants,
agreements, representations and warranties contained herein, and
other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties, intending to be legally bound,
hereby agree as follows:
1. Definitions. Capitalized terms
used but not defined herein and defined in the Merger Agreement
have the respective meanings ascribed to them in the Merger
Agreement. In addition, for purposes of this
Agreement:
(a) “Affiliate” of a specified Person
means a Person that directly or indirectly, through one or more
intermediaries, Controls, is Controlled by or is under common
Control with, such specified Person.
(b) “Beneficially Own” or
“Beneficial
Ownership” with respect to any securities shall mean
having “beneficial ownership” of such securities (as
determined pursuant to Rule 13d-3 under the Securities Exchange Act
of 1934, as amended (the “Exchange Act”)),
including pursuant to any agreement, arrangement or understanding,
whether or not in writing. Without duplicative counting of the same
securities by the same holder, securities Beneficially Owned by a
Person shall include securities Beneficially Owned by all other
Persons who together with such Person would constitute a
“group” within the meaning of Section 13(d)(3) of the
Exchange Act.
(c) “Control” and “Controlled,” as used within the definition of
Affiliate, shall mean the possession, direct or indirect, of the
power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting
securities or by contract.
(d) “Effective Time,” means the time
when the Merger becomes effective in accordance as defined with the
Merger Agreement.
(e) “knowledge” or “known” means, with respect to the
Stockholder, the actual knowledge of such Stockholder as to the
fact or other matter, however obtained; provided that no Stockholder who serves
as a director or officer of DCB or DCBank may deny having actual
knowledge of a fact or other matter if a reasonably prudent
individual possessing the knowledge and experience of the
Stockholder and serving in such capacity could be expected to
discover or otherwise become aware of such fact or other matter in
the ordinary course of performing his, her or its duties as a
director or officer. Without limiting the scope of the foregoing
proviso, no Stockholder who serves as a director or officer of DCB
or DCBank may deny having actual knowledge of a fact or other
matter by reason of such Stockholder having failed to review
information available to such Stockholder that such Stockholder
would normally review in the ordinary course of business in his,
her or its capacity as a director or officer of DCB or
DCBank.
(f) “OLB Applications” means
all applications, notices and filings that OLB is required to file
with any Regulatory Authority (as defined in the Merger Agreement)
in connection with the Merger.
(g) “Superior Proposal” shall
have the meaning set forth in the Merger Agreement.
(h) “DCB Companies” shall mean
collectively DCB and any subsidiaries thereof.
(i) “Person” shall mean an individual,
corporation, limited liability company, partnership, joint venture,
association, trust, unincorporated organization or other
entity.
(j) “Shares” shall mean shares
of the common stock, $0.01 par value per share, of
DCB.
(k) “Stockholder’s Shares” shall
mean all Shares held of record or Beneficially Owned by the
Stockholder, whether currently issued and outstanding or hereafter
acquired by purchase, or by exercise of any options, warrants or
other securities convertible into or exchangeable or exercisable
for Shares.
(l) “Termination Date” shall mean the
date that the Merger Agreement has been terminated in accordance
with its terms.
2. Voting of Shares.
(a) From and after the
date of this Agreement and ending as of the first to occur of the
Effective Time or the Termination Date, at any meeting of the
holders of Shares, however called, or in any other circumstance
upon which the vote, consent or other approval of holders of Shares
is sought, the Stockholder shall vote or cause to be voted
(including by written consent, if applicable) all of the
Stockholder’s Shares entitled to vote thereon, (i) in favor
of approval of the Merger and the execution and delivery by DCB of
the Merger Agreement (ii) against any action or agreement that
would result in a material breach of any covenant, representation
or warranty or any other obligation or agreement of DCB under the
Merger Agreement and (iii) against the following actions:
(A) any Superior Proposal; and (B) to the extent that such are
intended to, or could reasonably be expected to, impede, interfere
with, delay, postpone or materially adversely affect the Merger or
the transactions contemplated by the Merger Agreement, or implement
or lead to: (1) any change in a majority of the persons who
constitute the board of directors of DCB; (2) any change in the
present capitalization of DCB or any amendment of DCB’s
Articles of Incorporation or Bylaws; or (3) any other material
change in DCB’s corporate structure. In addition to the other
covenants and agreements of the Stockholder provided for elsewhere
in this Agreement, during the above-described period, the
Stockholder shall not enter into any agreement or understanding
with any Person or entity the effect of which would be inconsistent
with or violate the provisions and agreements contained in this
Section 2.
(b) It is understood
and hereby agreed that this Agreement relates solely to the
capacity of the Stockholder as a holder of the Shares and is not in
any way intended to affect the exercise of the Stockholder’s
responsibilities and fiduciary duties as a director or officer of
DCB or DCBank, including, without limitation, the exercise or
performance of any of the Stockholder’s rights or obligations
as a director with respect to any matter that comes before the
board of directors of DCB or DCBank.
(c) The Stockholder
hereby authorizes disclosure of his, her or its identity and
ownership of the Stockholder’s Shares and the nature of his,
her or its commitments, arrangements and understandings under this
Agreement in any proxy statement and regulatory filing of DCB, and
in any regulatory filing by OLB related to the Merger.
3. Representations and Warranties of the
Stockholder. The Stockholder hereby makes the following
representations and warranties to OLB, which are true and correct
as of the date hereof and shall be true and correct as of the
Effective Date:
(a) Ownership. As of the date of
this Agreement, the Shares set forth on Exhibit A hereto constitute all
of the Stockholder’s Shares owned of record or Beneficially
Owned by the Stockholder. Except for Shares with respect to which
the Stockholder shares investment or dispositive power or that are
owned together with others, the Stockholder has sole power of
disposition, sole power to demand appraisal rights and sole power
to vote upon and agree to all of the matters set forth in this
Agreement, in each case with respect to all of the Shares set forth
on Exhibit A
hereto, with no material limitations, qualifications or
restrictions on such rights, subject to applicable securities laws
and the terms of this Agreement.
(b) Power; Binding Agreement. The
Stockholder has the legal capacity, power and authority to enter
into and perform all of the Stockholder’s obligations under
this Agreement. This Agreement has been or will be duly and validly
executed and delivered by the Stockholder and (assuming the due
authorization, execution and delivery by the counterparties hereto
and thereto) constitutes or will constitute the legal, valid and
binding obligation of the Stockholder, enforceable against the
Stockholder in accordance with its terms, subject to the effect of
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to creditors’ rights generally and general
equitable principles. There is no beneficiary or holder of a voting
trust certificate or other interest of any trust of which the
Stockholder is trustee whose consent is required for (i) the
execution and delivery of this Agreement or any other agreements,
documents or instruments contemplated hereby to which the
Stockholder is a party or (ii) the consummation by the Stockholder
of the transactions contemplated hereby. If the Stockholder is
married and the Stockholder’s Shares constitute community
property, this Agreement has been duly authorized, executed and
delivered by, and (assuming the due authorization, execution and
delivery by the Stockholder and Xxxxxxx) constitutes a valid and
binding agreement of, the Stockholder’s spouse, enforceable
against such person in accordance with its terms, subject to the
effect of bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to creditors’ rights generally
and general equitable principles.
(c) No Conflicts. No filing with,
and no permit, authorization, consent or approval of, any state or
federal public body or authority or any Person is necessary for the
execution of this Agreement by the Stockholder and the consummation
by the Stockholder of the transactions contemplated hereby, and
none of the execution and delivery of this Agreement by the
Stockholder, the consummation by the Stockholder of the
transactions contemplated hereby or compliance by the Stockholder
with any of the provisions hereof shall (i) result in a violation
or breach of, or constitute (with or without notice or lapse of
time or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration)
under any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation of any
kind to which the Stockholder is a party or by which the
Stockholder or any of his, her or its properties or assets may be
bound, or (ii) violate any order, writ, injunction, decree,
judgment, order, statute, rule or regulation applicable to the
Stockholder or any of his, her or its properties or assets, in each
such case except to the extent that any conflict, breach, default
or violation would not interfere in any material respect with the
ability of the Stockholder to perform his, her or its obligations
hereunder.
(d) Voting Agreements or
Arrangements. Stockholder is not a party to any voting
trusts, voting agreements, buy-sell agreements or other agreements
or arrangements affecting the Stockholder’s Shares, other
than this Agreement.
4. Covenants of the Stockholder.
The Stockholder hereby covenants and agrees with OLB as
follows:
(a) No Encumbrances. At all times
hereafter during the term hereof, all of the Stockholder’s
Shares will be held free and clear of all liens, claims, security
interests, proxies, voting trusts or agreements, understandings or
arrangements or any other encumbrances whatsoever, except for any
liens, claims, understandings or arrangements that do not limit or
impair in any material respect Stockholder’s ability to
perform his, her or its obligations under this Agreement, and
subject to applicable securities laws and the terms of this
Agreement.
(b) Actions; Information for
Applications.
(i) Subject to Section
2(b) of this Agreement, the Stockholder will take all reasonable
actions to and assist in the consummation of the Merger and the
transactions contemplated by the Merger Agreement, and will use
his, her or its best efforts to cause the DCB Companies to take the
actions that are described in the Merger Agreement.
(ii) The
Stockholder will furnish OLB with all information concerning the
Stockholder required for inclusion in the OLB Applications. All
information provided by the Stockholder about the Stockholder for
inclusion in the OLB Applications, at the time such information is
provided, shall be true and correct in all material respects and
will not omit any material fact necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading.
(c) Confidentiality. The
Stockholder shall not disclose or use for his, her or its own
purpose or the benefit of others any information that the DCB
Companies are prohibited from disclosing or using for their own
purposes or for the benefit of others under Section 5.3 of the
Merger Agreement. The Stockholder shall use his, her or its
commercially reasonable best efforts to keep confidential all such
information, and shall not directly or indirectly use such
information for any competitive or other commercial purposes. The
obligation to keep such information confidential shall continue for
one year from the date of this Agreement, or the Termination Date
or the date such information becomes publically known other than as
a result of a breach of this Agreement, whichever is
earlier.
(i) No Solicitation. The
Stockholder shall not take any action that is described in
Section 5.1 of the Merger Agreement as an action of which the
DCB Companies are prohibited from authorizing or permitting their
respective officers, directors or employees to take.
(d) Press Releases. The Stockholder
will not, directly or indirectly, without the prior approval of
OLB, issue any press release or written statement for general
circulation relating to the Merger Agreement or the Merger except
as otherwise required by applicable law or regulation, and then
only after making reasonable efforts to notify OLB in
advance.
(e) Restriction on Transfer and Proxies;
Non-Interference. From and after the date of this Agreement
and ending as of the first to occur of the Effective Time or the
date DCB Stockholders approve the Merger Agreement, the Stockholder
shall not, and shall cause each of his, her or its Affiliates who
Beneficially Own any of the Stockholder’s Shares not to,
directly or indirectly, without the consent of OLB: (i) offer
for sale, sell, transfer, tender, pledge, encumber, assign or
otherwise dispose of, or enter into any contract, option or other
arrangement or understanding with respect to or consent to the
offer for sale, sale, transfer, tender, pledge, encumbrance,
assignment or other disposition of, any or all of the
Stockholder’s Shares, or any interest therein; (ii) grant any
proxies or powers of attorney, deposit any of Stockholder’s
Shares into a voting trust or enter into a voting agreement with
respect to any of Stockholder’s Shares; (iii) enter into
any agreement or arrangement providing for any of the actions
described in clause (i) or (ii) above; or (iv) take any action that
could reasonably be expected to have the effect of preventing or
disabling the Stockholder from performing the Stockholder’s
obligations under this Agreement.
(f) Waiver of and Agreement Not to Assert
Appraisal Rights. The Stockholder hereby confirms (i) his or
her knowledge of the availability of the rights of objecting
stockholders under Subtitle 2 of Title 3 of the Corporations and
Associations Article of the Annotated Code of Maryland (the
“Appraisal Statute”) with respect to the Merger, and
(ii) receipt of a copy of the provisions of the Appraisal Statute
related to the rights of objecting stockholders. The Stockholder
hereby waives and agrees not to assert, and shall cause any of his
or her Affiliates who hold of record any of the Stockholder’s
Shares to waive and not to assert, any appraisal rights with
respect to the Merger that the Stockholder or such Affiliate may
now or hereafter have with respect to any of the
Stockholder’s Shares (or any other shares of capital stock of
Xxxxxxx that the Stockholder shall hold of record at the time that
the Stockholder may be entitled to assert appraisal rights with
respect to the Merger), whether pursuant to the Appraisal Statue or
otherwise.
(g) Further Assurances. From time
to time, at OLB’s request and without further consideration,
the Stockholder shall execute and deliver such additional documents
reasonably requested by OLB as may be necessary or desirable to
consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this
Agreement.
5. Representations and Warranties of
OLB. OLB hereby represents and warrants to the Stockholder
that:
(a) Organization, Standing and Corporate
Power. OLB is a corporation duly organized, validly existing
and in good standing under the laws of the State of Maryland, with
full corporate power and authority to carry on its business as
proposed and currently conducted. Except as described in the Merger
Agreement, OLB has the corporate power and authority to enter
into and perform
all of its obligations under this Agreement and to consummate the
transactions contemplated hereby.
(b) Execution, Delivery and Performance by
OLB. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated
hereby have been duly authorized by the Board of Directors of OLB.
Except as described in the Merger Agreement, OLB has taken all
actions required by law, its Articles of Incorporation, as amended,
and its Amended and Restated By-Laws to consummate the transactions
contemplated by this Agreement. This Agreement constitutes the
valid and binding obligation of OLB and is enforceable against OLB
in accordance with its terms, except as enforceability may be
subject to bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting creditors’ rights
generally and general equitable principles.
6. Stop Transfer. From and after
the date of this Agreement and ending as of the first to occur of
the Effective Time or the Termination Date, the Stockholder will
not request that DCB register the transfer (book-entry or
otherwise) of any certificate or uncertificated interest
representing any of the Stockholder’s Shares.
7. Recapitalization. In the event
of a stock dividend or distribution, or any change in the Shares
(or any class thereof) by reason of any split-up, recapitalization,
combination, exchange of shares or the like, the term
“Shares” shall include, without limitation, all such
stock dividends and distributions and any shares into which or for
which any or all of the Shares (or any class thereof) may be
changed or exchanged as may be appropriate to reflect such
event.
8. Binding on Successors and Assigns;
Assignment. Except as contemplated by Section 10(g) hereof,
neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by operation of law or
otherwise, except that OLB may, without the approval of the
Stockholder, assign any or all of its rights, interests and
obligations hereunder to any wholly-owned subsidiary of OLB.
Subject to the preceding sentence, this Agreement will be binding
upon, inure to the benefit of and be enforceable by the parties and
their respective successors and assigns. The Stockholder agrees
that this Agreement, and the obligations of the Stockholder
hereunder, shall attach to the Stockholder’s Shares and shall
be binding upon any Person to which legal or beneficial ownership
of such Shares shall pass, whether by operation of law or
otherwise, including, without limitation, the Stockholder’s
heirs, guardians, administrators or successors.
9. Termination. This Agreement
shall terminate without any further action on the part of any party
hereto upon to occur of (a) the termination of the Merger Agreement
pursuant to the terms thereof or (b) the Effective Time. Upon such
termination, this Agreement shall forthwith become void and of no
further force or effect. The representations and warranties of the
parties contained herein shall not survive the termination of this
Agreement.
10. Miscellaneous.
(a) Entire Agreement; Amendment.
This Agreement, along with any agreements referenced herein,
contains the entire, complete, and integrated agreement among the
parties with respect to the subject matter hereof, and supersedes
any prior or contemporaneous arrangements, agreements or
understandings among the parties, written or oral, express or
implied, that may have related to the subject matter hereof. This
Agreement may be amended only by a written instrument duly executed
by the parties.
(b) Governing Law. This Agreement
shall in all respects be interpreted, enforced, and governed under
the laws of the State of Maryland, without regard to
Maryland’s conflict-of-laws provisions. The parties hereby
submit to the jurisdiction and venue of the courts of Maryland, and
any legal or equitable action to enforce this or any related
agreements may only be brought in the circuit courts
therein.
(c) Captions. The headings of
Sections and subsections contained in this Agreement are provided
for convenience only. They form no part of this Agreement and shall
not affect its construction or interpretation. All references to
Sections, subsections, paragraphs, clauses or other subdivisions in
this Agreement refer to the corresponding Sections, subsections,
paragraphs, clauses or other subdivisions of this Agreement. All
words used in this Agreement shall be construed to be of such
gender or number as the circumstances require. Unless otherwise
specifically noted, the words “herein”,
“hereof”, “hereby”, “hereunder”
and words of similar import refer to this Agreement as a whole and
not to any particular Section, subsection, paragraph, clause or
other subdivision of this Agreement.
(d) Notices. All notices, claims,
certificates, requests, demands and other communications hereunder
shall be in writing and shall be deemed sufficient and duly given:
(i) when delivered personally to the recipient; (ii) email upon
confirmation of good transmission if sent by facsimile; or (iii)
when delivered to the last known address of the recipient (A) one
business day after delivery to a reputable express courier service
for next-day delivery (charges prepaid), or (B) three days after
being sent to the recipient by certified mail, return receipt
requested and postage prepaid, addressed as follows:
(1) If
to
OLB:
Xxxxx X. Xxxxxxxxx
President and Chief
Executive Officer
Old
Line Bancshares, Inc.
0000
Xxxxxxx Xxxxx Xx.
Xxxxx,
Xxxxxxxx 00000
with copy
to:
Baker, Donelson, Bearman, Xxxxxxxx
&
Xxxxxxxxx
A
Professional Corporation
000
Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx
00000
Attn:
Xxxxx X. Xxxxxxxxxxx, Xx., Esq.
(2)
If to the
Stockholder:
applicable
signature page hereto.
Addresses
may be changed by notice in writing signed by the
addressee.
(e) Severability. Whenever
possible, each provision or portion of any provision of this
Agreement will be interpreted in such manner as to be effective and
valid under applicable law, but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in
any jurisdiction, then such invalidity, illegality or
unenforceability will not affect any other provision or portion of
any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision or portion of any
provision had never been contained herein.
(f) Remedies Cumulative. All
rights, powers and remedies provided under this Agreement or
otherwise available in respect hereof at law or in equity shall be
cumulative and not alternative, and the exercise of any such right,
power or remedy by any party shall not preclude the simultaneous or
later exercise of any other such right, power or remedy by such
party.
(g) No Third Party Beneficiaries.
This Agreement is not intended to be for the benefit of, and shall
not be enforceable by, any person or entity who or which is not a
party hereto; provided that
in the event of the Stockholder’s death, the obligations of
the Stockholder hereunder shall attach to the Stockholder’s
Shares and shall be binding upon any Person to which legal or
beneficial ownership of such Shares shall pass, whether by
operation of law or otherwise, including without limitation the
Stockholder’s heirs, guardians, administrators or
successors.
(h) Counterparts; Facsimile. This
Agreement may be executed simultaneously in several counterparts,
each of which shall be deemed to be an original copy of this
Agreement and all of which together will be deemed to constitute
one and the same agreement. The exchange of copies of this
Agreement and of signature pages by facsimile transmission shall
constitute effective execution and delivery of this Agreement as to
the parties and may be used in lieu of the original Agreement for
all purposes. Signatures of the parties transmitted by facsimile
shall be deemed to be their original signatures for all
purposes.
(i) Construction. This Agreement
has been prepared by all parties hereto, and the language used
herein shall not be construed in favor of or against any particular
party.
(j) No Waiver. The delay or failure
on the part of any party to (i) insist upon the strict
compliance with any of the terms of this Agreement or
(ii) exercise any rights or remedies hereunder shall not
operate as a waiver of, or estoppel with respect to, any subsequent
or other failure, nor shall any single or partial exercise of any
right or remedy hereunder preclude any subsequent exercise thereof
or the exercise of any other right or remedy at any later time or
times.
(k) WAIVER OF JURY TRIAL. EACH
PARTY HEREBY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO
WHICH IT MAY BE A PARTY, ARISING OUT OF OR IN ANY WAY PERTAINING TO
THIS AGREEMENT. IT IS AGREED AND UNDERSTOOD THAT THIS WAIVER
CONSTITUTES A WAIVER OF TRIAL BY JURY OF ALL CLAIMS AGAINST ALL
PARTIES TO SUCH ACTIONS OR PROCEEDINGS, INCLUDING CLAIMS AGAINST
PARTIES WHO ARE NOT PARTIES HERETO. THIS WAIVER IS KNOWINGLY,
WILLINGLY AND VOLUNTARILY MADE BY EACH PARTY, AND EACH HEREBY
REPRESENTS THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN
MADE BY ANY INDIVIDUAL TO INDUCE THIS WAIVER OF TRIAL BY JURY OR TO
IN ANY WAY MODIFY OR NULLIFY ITS EFFECT. EACH PARTY FURTHER
REPRESENTS THAT IT HAS HAD THE OPPORTUNITY TO BE REPRESENTED IN THE
EXECUTION OF THIS AGREEMENT AND IN THE MAKING OF THIS WAIVER BY
INDEPENDENT LEGAL COUNSEL, SELECTED OF ITS OWN FREE WILL, AND THAT
IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH
COUNSEL.
[Signatures
appear on the following page.]
IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
OLD
LINE BANCSHARES, INC.
By:
Xxxxx
X. Xxxxxxxxx
President
and Chief Executive Officer
STOCKHOLDER:
Print
Name:
Address
for Notice:
EXHIBIT A
TO
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CLASS OF
SHARES
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CERTIFICATE
NO.
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NUMBER OF
SHARES
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RECORD
OWNER
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BENEFICIAL
OWNER
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Common
Stock
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Common
Stock
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