AGREEMENT
Exhibit 10.1
THIS AGREEMENT (the "Agreement"), dated this 5th day of February 2016, is by and among Sunshine Financial, Inc., a Maryland corporation (the "Company"), and its wholly owned subsidiary, Sunshine Savings Bank, a federally chartered savings bank (the "Bank," and collectively with the Company, "Sunshine"), Xxxxxxxx Value Partners VII, L.P., Xxxxxxxx Activist Fund, L.P., Xxxxxxxx Activist Investments, L.P., Xxxxxxxx Partners, L.P., each a Delaware limited partnership, and Xxxxxxxx Value LLC, a Delaware limited liability company (collectively, "The Xxxxxxxx Group," and each individually, a "Xxxxxxxx Group Member"), and Xxxxxxx X. Xxxxxxx, an individual (the "Nominee").
RECITAL
WHEREAS, Sunshine, The Xxxxxxxx Group and the Nominee have agreed that it is in their mutual interests to enter into this Agreement.
NOW THEREFORE, in consideration of the Recital and the representations, warranties, covenants and agreements contained herein and other good and valuable consideration, and intending to be legally bound hereby, the parties hereto mutually agree as follows:
1. Representations and Warranties of The Xxxxxxxx Group Members. Each Xxxxxxxx Group Member represents and warrants to Sunshine as follows:
(a) Each Xxxxxxxx Group Member (and the Nominee) has fully disclosed in Exhibit A to this Agreement the total number of shares of common stock of the Company, par value $0.01 per share ("Company Common Stock"), as to which it is the beneficial owner, and neither The Xxxxxxxx Group nor any Xxxxxxxx Group Member nor any of their affiliates has (i) a right to acquire any beneficial ownership interest in any capital stock of the Company (other than cross-trades in the open market or transfers between affiliated funds managed by Xxxxxxxx Value LLC that do not change the overall percentage of The Xxxxxxxx Group's total ownership), or (ii) a right to vote any shares of capital stock of the Company other than as set forth in Exhibit A;
(b) The Xxxxxxxx Group and the Xxxxxxxx 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 Xxxxxxxx Group and Xxxxxxxx Group Members has been duly authorized by The Xxxxxxxx Group and the Xxxxxxxx Group Members. This Agreement constitutes a valid and binding obligation of The Xxxxxxxx Group and the Xxxxxxxx Group Members, and the performance of its terms will not constitute a violation of any limited partnership agreement, operating agreement, bylaws, or any agreement or instrument to which The Xxxxxxxx Group or any Xxxxxxxx Group Member is a party;
(c) There are no other persons who, by reason of their personal, business, professional or other arrangement with The Xxxxxxxx Group or any Xxxxxxxx Group Member, have agreed, in writing or orally, explicitly or implicitly, to take any action, directly or indirectly, on behalf of or in lieu of The Xxxxxxxx Group or any Xxxxxxxx Group Member that would be prohibited by this Agreement; and
(d) Except for the Confidentiality Agreement dated February 2, 2016, between certain Xxxxxxxx Group Members and the Company (the "Confidentiality Agreement"), there are no arrangements, agreements or understandings concerning the subject matter of this Agreement between The Xxxxxxxx Group or any Xxxxxxxx Group Member and Sunshine or between The Xxxxxxxx Group or any Xxxxxxxx Group Member and the Nominee other than as set forth in this Agreement.
2. Representations and Warranties of the Company and the Bank. The Company and the Bank each hereby represent and warrant to The Xxxxxxxx Group as follows:
(a) The Company and the Bank have full power and authority to enter into and perform their respective obligations under this Agreement and that the execution and delivery of this Agreement by the Company and the Bank has been duly authorized by the Boards of Directors of the Company and the Bank. This Agreement constitutes a valid and binding obligation of the Company and the Bank, respectively, and the performance of its terms will not constitute a violation of their respective articles of incorporation, charter or bylaws, or any agreement or instrument to which the Company or the Bank is a party; and
(b) Except for the Confidentiality Agreement, there are no arrangements, agreements, or understandings concerning the subject matter of this Agreement between The Xxxxxxxx Group or any Xxxxxxxx Group Member and Sunshine other than as set forth in this Agreement.
3. Covenants.
(a) During the term of this Agreement, Sunshine covenants and agrees as follows:
(i) Upon execution of this Agreement, the Board of Directors of the Company will appoint the Nominee as a director of the Company to serve in the class of directors with terms expiring at the Company's 2018 annual meeting of stockholders ("2018 Meeting") or until her successor, if any, is elected and qualified. Following the Nominee's appointment as a director of the Company, the Company and the Bank shall take all necessary and appropriate action to appoint the Nominee to the Board of Directors of the Bank as promptly as possible following the completion of the Bank's conversion to a Florida chartered commercial bank. The parties hereto understand and agree that the Nominee must receive all necessary approvals and non-objections from the applicable banking regulatory agencies, to the extent required, before commencing service as a director of the Company and the Bank. The Company and the Bank agree to act in good faith and cooperate with the Nominee in promptly submitting all necessary applications and notices contemplated hereby. The parties acknowledge that upon appointment of the Nominee to the Company's Board of Directors and until such time as she is appointed the Bank's Board of Directors, the Nominee shall be invited and entitled to attend all meetings of the Bank's Board of Directors; provided, however, the Nominee (A) will attend such meetings in a non-voting, advisory capacity only and (B) shall be excluded only from any portions of such meetings involving matters for which the inclusion of the Nominee would or could reasonably be expected to violate applicable laws, regulations or orders, decrees or determinations of any applicable banking agency;
(ii) Upon the Nominee's appointment and qualification to the Company's and the Bank's Boards of Directors, the Nominee shall be treated on an equally consistent basis, prospectively, with other non-officer members of the Company's and the Bank's Boards of Directors with respect to compensation and benefits, including with respect to grants of shares and options to purchase shares; and
(iii) Should the Nominee's position as a director of the Company or the Bank be terminated during the term of this Agreement due to resignation, death, permanent disability or otherwise, the Company shall appoint a replacement director selected by The Xxxxxxxx Group (the "Replacement Director"), subject to the approval of the Company which approval shall not be unreasonably withheld, and the Replacement Director shall, subject to the receipt of any necessary approvals and non-objections from the applicable banking regulatory agencies, to the extent required, and his or her agreement to honor the provisions of Sections 3(c) and 3(d) hereof, be appointed to the Boards of the Company and the Bank and will execute a Non-Disclosure Agreement as contemplated in Section 3(e) hereof; provided, however,
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that notwithstanding the foregoing, in the event that the Nominee resigns pursuant to Section 3(d)(ii) hereof, no Replacement Director shall be appointed.
(b) During the term of this Agreement, so long as the requirements of Section 3(a) of this Agreement have been satisfied by Sunshine with respect to the Nominee, or the Replacement Director, The Xxxxxxxx Group and each Xxxxxxxx Group Member covenant and agree not to do the following, and agree to cause their affiliates not to do the following, directly or indirectly, alone or in concert with any affiliate, other group or other person:
(i) own, acquire, offer or propose to acquire or agree to acquire, 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) any additional shares of the outstanding Company Common Stock, any rights to vote or direct the voting of any additional shares (i.e., in excess of the aggregate number of shares held by The Xxxxxxxx Group as of the date hereof) of Company Common Stock, or any securities convertible into Company Common Stock EXCEPT for additional shares acquired by way of (A) stock splits, stock dividends, stock reclassifications or other distributions or offerings made available and, if applicable, exercised on a pro rata basis, to holders of the Company Common Stock generally, (B) inter-company or inter-fund transfers between members of The Xxxxxxxx Group and/or its affiliates, or (C) any securities acquired by the Nominee pursuant to her directorships contemplated herein (or issued to the Nominee upon exercise or conversion thereof in the case of convertible securities);
(ii) without the Company's prior written consent, directly or indirectly, sell, transfer or otherwise dispose of any interest in The Xxxxxxxx Group's shares of Company Common Stock to any person The Xxxxxxxx Group believes, after reasonable inquiry, would be beneficial owner after any such sale or transfer of more than 5% of the outstanding shares of the Company Common Stock;
(iii) (A) 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 the Bank or any material portion of the Company's or the Bank's business or assets or any other type of transaction that would result in a change in control of the Company (any such transaction described in this clause (A) is a "Company Transaction" and any proposal or other action seeking to effect a Company Transaction as described in this clause (A) is defined as a "Company Transaction Proposal"), (B) seek to exercise any control or influence over the management of the Company or the Boards of Directors of the Company or the Bank or any of the businesses, operations or policies of the Company or the Bank, (C) present to the Company, its stockholders or any third party any proposal constituting or that could reasonably be expected to result in a Company Transaction, or (D) seek to effect a change in control of the Company;
(iv) 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 would constitute or could reasonably be expected to result in a Company Transaction or take any action that might require the Company to make a public announcement regarding any such Company Transaction;
(v) initiate, request, induce, encourage or attempt to induce or give encouragement to any other person to initiate any Company Transaction Proposal, or otherwise provide assistance to any person who has made or is contemplating making, or enter into discussions or negotiations with respect to, any Company Transaction Proposal;
(vi) 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 in
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Rule 14a-1 of Regulation 14A and Instruction 3 of Item 4 of Schedule 14A, respectively, under the Securities Exchange Act of 1934) in opposition to any recommendation or proposal of the Company's Board of Directors, 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) the Company Common Stock, or execute any written consent in lieu of a meeting of the holders of the Company Common Stock or grant a proxy with respect to the voting of the capital stock of the Company to any person or entity other than the Board of Directors of the Company;
(vii) form, join in or in any other way (including by deposit of the Company's capital stock) participate in a partnership, pooling agreement, syndicate, voting trust or other group with respect to Company Common Stock, 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 Company Common Stock;
(viii) 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 Company's Board of Directors (other than with respect to the provisions of Sections 3(a)(i) and (iii), providing for the possible election of the Nominee or Replacement Director) or seek removal of any member of the Company's or the Bank's Boards of Directors;
(ix) (A) 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 Company's Board of Directors to a vote of the Company's stockholders, or (B) 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 Company's Board of Directors;
(x) vote for any nominee or nominees for election to the Board of Directors of the Company other than the Nominee and those other persons nominated or supported by the Company's Board of Directors;
(xi) except in connection with the enforcement of this Agreement, initiate or participate, by encouragement, or otherwise, in any litigation against the Company or the Bank or their respective officers and directors, or in any derivative litigation on behalf of the Company or the Bank, except for testimony which may be required by law; or
(xii) 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.
(c) During the term of this Agreement, each Xxxxxxxx Group Member and the Nominee agree not to disparage the Company, the Bank or any of their directors, officers or employees in any public or quasi-public forum, and the Company and the Bank agree not to disparage The Xxxxxxxx Group, any Xxxxxxxx Group Member, or the Nominee (or the Replacement Director, as the case may be) in any public or quasi-public forum.
(d) (i) The Nominee agrees that during the term of this Agreement she will not take any action, directly or indirectly, which, if the Nominee were deemed to be a Xxxxxxxx Group Member, would be in violation of or inconsistent with any of the covenants and agreements made by The Xxxxxxxx Group in clauses (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi) and (xii) of Section 3(b) hereof, provided, however, that nothing herein shall prevent or limit the Nominee, upon her appointment and/or election and qualification as a director of the Company and the Bank, from expressing her views or positions on
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matters related to the Company's or the Bank's business, operations or policies to other members of the Company's or the Bank's Board of Directors at either duly convened meetings of the Company's or the Bank's Board of Directors or in conversations with the Company's executive officers or members of either Board of Directors in such manner as may be necessary or appropriate in order to fulfill her duties as a director, or in order to conduct any other official business she is authorized to engage in on behalf of the Company or the Bank.
(ii) In the event that the Nominee breaches clause (i) of this Section 3(d), she shall promptly resign her positions as a director of the Company and the Bank or withdraw her name from nomination; in the event that the Nominee fails to resign or withdraw her name after a breach in accordance with the provisions of this Section 3(d)(ii), the Nominee agrees that the remaining directors of the Company and the Bank, by majority vote thereof, may remove the Nominee from her directorship positions with the Company and the Bank or remove her name from nomination, as the case may be.
(iii) The Nominee agrees to promptly submit her resignation as a director in the event of the termination of this Agreement prior to the Company's 2018 Meeting.
(e) Upon appointment and subsequent election of the Nominee, and the commencement of the Nominee's services as a director of the Company, the Company, The Xxxxxxxx Group and the Nominee will enter into a Non-Disclosure Agreement, substantially in the form attached as Exhibit B hereto, which shall remain in force through the Nominee's tenure on the Board of Directors.
(f) If the Company announces a merger, sale or the substantial disposition of its assets to a third-party, The Xxxxxxxx Group and each Xxxxxxxx Group Member shall be entitled to sell their shares.
4. Notice of Breach and Remedies.
(a) The parties 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 Xxxxxxxx Group and each Xxxxxxxx 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 Sunshine unless and until Sunshine is given written notice of such breach and thirty (30) business days either to cure such breach or seek relief in court. If Sunshine seeks relief in court, The Xxxxxxxx Group and each Xxxxxxxx Group Member irrevocably stipulate that any failure to perform by The Xxxxxxxxx Group and/or any Xxxxxxxx Group Member or any assertion by The Xxxxxxxx Group and/or any Xxxxxxxx Group Member that they are excused from performing their obligations under this Agreement would cause Sunshine irreparable harm, that Sunshine shall not be required to provide further proof of irreparable harm in order to obtain equitable relief and that The Xxxxxxxx Group and each Xxxxxxxx Group Member shall not deny or contest that such circumstances would cause Sunshine irreparable harm. If, after such thirty (30) business day period, Sunshine has not either reasonably cured such material breach or obtained relief in court, The Xxxxxxxx Group or each Xxxxxxxx Group Member may terminate this Agreement by delivery of written notice to Sunshine.
(c) Sunshine 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 Xxxxxxxx Group or any Xxxxxxxx Group Member unless and until The Xxxxxxxx Group and each Xxxxxxxx Group Member is given written notice of such breach and thirty (30) business days either to cure such breach or seek relief in court. If The Xxxxxxxx Group or any Xxxxxxxx Group Member seeks relief in court, Sunshine irrevocably stipulates that any failure to perform by Sunshine or any assertion by Sunshine that it is excused from
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performing its obligations under this Agreement would cause The Xxxxxxxx Group and each Xxxxxxxx Group Member irreparable harm, that The Xxxxxxxx Group or any Xxxxxxxx Group Member shall not be required to provide further proof of irreparable harm in order to obtain equitable relief and that Sunshine shall not deny or contest that such circumstances would cause The Xxxxxxxx Group and each Xxxxxxxx Group Member irreparable harm. If, after such thirty (30) business day period, The Xxxxxxxx Group or the Xxxxxxxx Group Member has not either reasonably cured such material breach or obtained relief in court, Sunshine may terminate this Agreement by delivery of written notice to The Xxxxxxxx Group and each Xxxxxxxx Group Member.
5. Term. This Agreement shall be effective upon the execution of the Agreement and will remain in effect for a period expiring as of the close of the 2018 Meeting, provided however The Xxxxxxxx Group may terminate this Agreement at any time after December 31, 2016, upon delivery of prior written notice to Sunshine, provided further that upon such notice the Nominee (or the Replacement Director, as the case may be) resigns as a director of the Company and the Bank in accordance with Section 3(d)(iii) hereof.
6. Publicity. Any press release or publicity with respect to this Agreement or any provisions hereof shall be jointly prepared and issued by the parties hereto. During the term of this Agreement, no party to this Agreement shall cause, discuss, cooperate or otherwise aid in the preparation of any press release or other publicity concerning any other party to this Agreement or its operations without the prior approval of such other party, which approval shall not be unreasonably withheld, provided that the parties shall be entitled to make such filings as each deems necessary to comply with securities laws.
7. Notices. All notices, communications and deliveries required or permitted by this Agreement shall be made in writing signed by the party making the same, shall specify the Section of this Agreement pursuant to which it is given or being made and shall be deemed given or made (a) on the date delivered if delivered by telecopy or in person, (b) on the third Business Day after it is mailed if mailed by registered or certified mail (return receipt requested) (with postage and other fees prepaid) or (c) on the day after it is delivered, prepaid, to an overnight express delivery service that confirms to the sender delivery on such day, as follows:
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Xxxxxxxx Group:
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Xxxxx Xxxxxx
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c/o The Xxxxxxxx Group
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000 Xxxxxxxx, 00xx Xxxxx
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Xxx Xxxx, Xxx Xxxx 00000
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Facsimile: 000-000-0000
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With a copy to:
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X. X. Xxxxxxx, Esq.
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c/o The Xxxxxxxx Group
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000 Xxxxxxxx, 00xx Xxxxx
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Xxx Xxxx, Xxx Xxxx 00000
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Facsimile: 000-000-0000
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Nominee:
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Xxxxxxx X. Xxxxxxx
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c/o The Xxxxxxxx Group
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000 Xxxxxxxx, 00xx Xxxxx
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Xxx Xxxx, Xxx Xxxx 00000
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Facsimile: 000-000-0000
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Sunshine:
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Xxxxx X. Xxxxx
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President and Chief Executive Officer
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Sunshine Financial, Inc.
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0000 Xxxx Xxxx Xxxxxx
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Xxxxxxxxxxx, XX 00000
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Facsimile: 000-000-0000
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With a copy to:
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Xxxxxxx Xxxxx, Esq.
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Silver, Xxxxxxxx, Xxxx & Xxxxxxx LLP
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0000 X Xxxxxx, X.X.
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Xxxxx 000
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Xxxxxxxxxx, XX 00000-0000
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Facsimile: 000-000-0000
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8. Governing Law and Choice of Forum. Unless applicable federal law or regulation is deemed controlling, Maryland law shall govern the construction and enforceability of this Agreement. Any and all actions concerning any dispute arising hereunder shall be filed in a state or federal court, as appropriate, sitting in the State of Maryland.
9. 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.
10. 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, 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 to the Agreement. Nothing contained herein shall prohibit any Xxxxxxxx Group Member from transferring any portion or all of the shares of Company Common Stock owned thereby at any time to any affiliate of The Xxxxxxxx Group or any other Xxxxxxxx Group Member but only if the transferee agrees in writing for the benefit of Sunshine (with a copy thereof to be furnished to Sunshine upon such transfer) to be bound by the terms of this Agreement (any such transferee shall be included in the terms "The Xxxxxxxx Group" and "Xxxxxxxx Group Member").
11. Survival of Representations, Warranties and Covenants. All representations, warranties and covenants shall survive the execution and delivery of this Agreement and shall continue for the term of this Agreement unless otherwise provided.
12. 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.
13. Definitions. As used in this Agreement, the following terms shall have the meanings indicated, unless the context otherwise requires:
(a) The term "acquire" means every type of acquisition, whether effected by purchase, exchange, operation of law, or otherwise.
(b) The term "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 or pooling of voting or other interests in the securities of an issuer for a common purpose
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pursuant to any contract, understanding, relationship, agreement or other arrangement, whether written or otherwise.
(c) The term "affiliate" means, with respect to any person, a person or entity that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with such other person.
(d) The term "beneficial owner" shall have the meaning ascribed to it, and be determined in accordance with, Rule 13d-3 of the Securities and Exchange Commission's Rules and Regulations under the Securities Exchange Act of 1934.
(e) The term "change in control" denotes circumstances under which: (i) any person or group becomes the beneficial owner of shares of capital stock of the Company or the Bank representing 25% or more of the total number of votes that may be cast for the election of the Boards of Directors of the Company or the Bank, (ii) the persons who were directors of the Company or the Bank cease to be a majority of the Board of Directors, 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 combination of the foregoing, 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.
(f) The term "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 stock, by contract, or otherwise.
(g) The term "group" has the meaning as defined in Section 13(d)(3) of the Securities Exchange Act of 1934.
(h) The term "person" includes an individual, group acting in concert, corporation, partnership, association, joint stock company, trust, unincorporated organization or similar company, syndicate, entity, or any other group formed for the purpose of acquiring, holding or disposing of the equity securities of the Company.
(i) The term "transfer" means, directly or indirectly, to sell, gift, 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, assignment, pledge, encumbrance, hypothecation or similar disposition of (by operation of law or otherwise), any Company Common Stock or any interest in any Company Common Stock; 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 common stock beneficially owned by The Xxxxxxxx Group or a Xxxxxxxx Group Member.
(j) The term "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.
14. Counterparts; Facsimile. This Agreement may be executed in any number of counterparts and by the parties in separate counterparts, and signature pages may be delivered by facsimile, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
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.
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16. Termination. This Agreement shall cease, terminate and have no further force and effect upon the expiration of the term as set forth in Section 5, unless earlier terminated pursuant to mutual written agreement of the parties.
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XXXXXXXX ACTIVIST FUND, L.P.
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By:
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Xxxxxxxx Value LLC
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General Partner
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By:
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/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
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Co-Managing Member
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XXXXXXXX VALUE PARTNERS VII, L.P.
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SUNSHINE FINANCIAL, INC.
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By:
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Xxxxxxxx Value LLC
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General Partner
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By:
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/s/ Xxxxx Xxxxxx
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By:
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/s/ Xxxxx X. Xxxxx
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Xxxxx Xxxxxx
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Xxxxx X. Xxxxx
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Co-Managing Member
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President & CEO
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XXXXXXXX ACTIVIST INVESTMENTS, L.P.
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SUNSHINE SAVINGS BANK
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By:
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Xxxxxxxx Value LLC
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General Partner
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By:
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/s/ Xxxxx Xxxxxx
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By:
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/s/ Xxxxx X. Xxxxx
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Xxxxx Xxxxxx
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Xxxxx X. Xxxxx
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Co-Managing Member
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President & CEO
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XXXXXXXX PARTNERS, L.P.
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By:
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Xxxxxxxx Value LLC
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XXXXXXX X. XXXXXXX
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General Partner
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By:
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/s/ Xxxxx Xxxxxx
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By:
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/s/ Xxxxxxx X. Xxxxxxx
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Xxxxx Xxxxxx
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Xxxxxxx X. Xxxxxxx
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Co-Managing Member
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XXXXXXXX VALUE LLC
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By:
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/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
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Co-Managing Member
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EXHIBIT A
The Xxxxxxxx Group currently holds 98,300 shares of Company Common Stock.
EXHIBIT B
NON-DISCLOSURE AGREEMENT
THIS NON-DISCLOSURE AGREEMENT (this "Agreement"), is made and entered into as of the date on which it is fully executed, as indicated by signatures below, by and among Sunshine Financial, Inc. (the "Company"), The Xxxxxxxx Group (composed of Xxxxxxxx Value Partners VII, L.P., Xxxxxxxx Activist Fund, L.P., Xxxxxxxx Activist Investments, L.P., Xxxxxxxx Partners, L.P., and Xxxxxxxx Value LLC, and their employees and representatives), and Xxxxxxx X. Xxxxxxx (the "Director").
WHEREAS, the Director is a member of the Board of Directors of the Company and its wholly owned subsidiary, Sunshine Savings Bank (the "Bank");
WHEREAS, the Company, The Xxxxxxxx Group and the Director have agreed that it is in their mutual interests to enter into this Agreement as hereinafter described.
NOW THEREFORE, for good and valuable consideration, and intending to be legally bound hereby, the parties hereto mutually agree as follows:
1. In connection with the Director serving on the Boards of Directors of the Company and the Bank, the Director and other Company employees, directors, and agents may divulge nonpublic information concerning the Company and its subsidiaries to The Xxxxxxxx Group and such information may be shared among The Xxxxxxxx Group's employees, representatives, and agents who have a need to know such information. The Xxxxxxxx Group expressly agrees to maintain all nonpublic information concerning the Company and its subsidiaries in confidence. The Xxxxxxxx Group expressly acknowledges that federal and state securities laws may prohibit a person from purchasing or selling securities of a company, or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such other person is likely to purchase or sell such securities, while the first-mentioned person is in possession of material nonpublic information about such company. The Xxxxxxxx Group agrees to comply with the Company's xxxxxxx xxxxxxx policies and procedures, as in effect from time to time, to the same extent as if it were a director of the Company. To the extent any nonpublic information concerning the Company and its subsidiaries received by The Xxxxxxxx Group is material, this Agreement is intended to satisfy the confidentiality agreement exclusion of Regulation FD of the U.S. Securities and Exchange Commission (the "SEC") set forth in Rule 100(b)(2)(ii) of Regulation FD of the SEC.
2. Each of The Xxxxxxxx Group and the Director represents and warrants to the Company that this Agreement has been duly and validly authorized (in the case of the entity members of The Xxxxxxxx Group), executed and delivered by them, and is a valid and binding agreement enforceable against them in accordance with its terms.
3. The Director hereby further confirms to the Company that no event has occurred with respect to the Director that would require disclosure in a document filed by the Company with the SEC pursuant to the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, under Item 401(f) or Item 404(a) of SEC Regulation S-K.
4. The Xxxxxxxx Group acknowledges that with regard to its obligations to maintain the confidentiality of nonpublic information of the Company and its subsidiaries, monetary damages may not be a sufficient remedy for any breach or threatened breach of this Agreement and that, in addition to all other remedies, the Company may be entitled to seek specific performance and injunctive or other equitable relief as a remedy for such breach, and agrees that in conjunction therewith the Company shall not be required to post any bond.
5. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not referred to herein.
6. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Maryland, without regard to choice of law principles that may otherwise compel the application of the laws of any
other jurisdiction. Each of the parties hereby irrevocably consents to the exclusive jurisdiction of the state and federal courts sitting in the State of Maryland to resolve any dispute arising from this Agreement and waives any defense of inconvenient or improper forum.
7. The terms and provisions of this Agreement shall be deemed severable and, in the event any term or provision hereof or portion thereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if possible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this Agreement shall nevertheless continue and be deemed to be in full force and effect and binding upon the parties.
8. All representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this Agreement.
9. 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.
10. 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.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by duly authorized officers of the undersigned as of as of the day and year indicated below.
THE XXXXXXXX GROUP
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By:
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_______________________
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Xxxxx Xxxxxx
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Co-Managing Member, Xxxxxxxx Value LLC
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Dated: February ___, 2016
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DIRECTOR
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_____________________
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Xxxxxxx X. Xxxxxxx
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Date: February ___, 2016
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SUNSHINE FINANCIAL, INC.
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By:
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________________________________
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Xxxxx X. Xxxxx
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President & CEO
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Date: February ____, 2016
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