IRREVOCABLE PROXY AND VOTING AGREEMENT
Exhibit 2.3
IRREVOCABLE PROXY AND VOTING AGREEMENT
This IRREVOCABLE PROXY AND VOTING AGREEMENT (this “Agreement”), dated as of July 1, 2013, is entered into by and among First National Security Company, an Arkansas corporation (the “Company”), and Bear State Financial Holdings, LLC (the “Majority Shareholder”). Capitalized terms used but not separately defined herein shall have the meanings assigned to such terms in the Merger Agreement (as defined below).
RECITALS
WHEREAS, in order to induce Company to enter into an Agreement and Plan of Merger dated as of the date hereof (the “Merger Agreement”) with First Federal Bancshares of Arkansas, Inc., an Arkansas corporation (“Parent”), Company has requested the Majority Shareholder, and the Majority Shareholder has agreed, to enter into this Agreement with respect to all shares of common stock of the Parent that the Majority Shareholder beneficially owns or may hereafter acquire (collectively, the “Shares”);
NOW THEREFORE, in consideration of the terms and conditions set forth below, the parties agree as follows:
Section 1. Voting Agreement.
(a) The Majority Shareholder hereby irrevocably and unconditionally agrees to vote all Shares that the Majority Shareholder is entitled to vote, at the time of any vote to approve and adopt the Merger Agreement, the Merger and all agreements related to the Merger and any actions related thereto at any meeting of the shareholders of the Parent, and at any adjournment thereof, at which such Merger Agreement and other related agreements (or any amended version thereof), or such other actions, are submitted for the consideration and vote of the shareholders of the Parent, in favor of the approval and adoption of the Merger Agreement, the Merger and the transactions contemplated by the Merger Agreement.
(b) The Majority Shareholder hereby agrees that it will not vote any Shares that the Majority Shareholder is entitled to vote in favor of the approval of any (i) Parent Competing Transaction, (ii) reorganization, recapitalization, liquidation or winding up of the Parent or any other extraordinary transaction involving the Parent, (iii) corporate action the consummation of which would frustrate the purposes, or prevent or delay the consummation, of the transactions contemplated by the Merger Agreement or (iv) other matter relating to, or in connection with, any of the foregoing matters.
(c) Notwithstanding the foregoing paragraphs 1(a) and (b) above, in the event the Parent is entitled to exercise its rights to terminate the Merger Agreement under Section 9.1 thereof, nothing contained herein shall prevent the Majority Shareholder from taking such action, in its capacity as an officer, director or shareholder of the Parent, as may be necessary to properly assert such rights.
(d) With respect to any Shares held of record on behalf or for the benefit of the Majority Shareholder or its immediate family by a custodian or trustee (including shares held in an XXX account or self-employed profit sharing account), the Majority Shareholder agrees to take such action as may be necessary to cause the custodian or trustee to vote such Shares in accordance with the provisions of paragraphs 1(a) and (b) above.
Section 2. Irrevocable Proxy. The Majority Shareholder hereby revokes any and all previous proxies granted with respect to the Shares beneficially owned by the Majority Shareholder. By entering into this Agreement, the Majority Shareholder hereby grants a proxy appointing Company as the Majority Shareholder’s attorney-in-fact and proxy, with full power of substitution, for and in the Majority Shareholder’s name, to vote, express, consent or dissent, or otherwise to utilize such voting power solely for the purposes contemplated by Section 1 above as Company or its proxy or substitute shall, in Company’ sole discretion, deem proper with respect to the Shares beneficially owned by the Majority Shareholder. THE PROXY GRANTED BY THE MAJORITY SHAREHOLDER PURSUANT TO THIS SECTION 2 IS IRREVOCABLE AND THE APPOINTMENT IS COUPLED WITH AN INTEREST, HAVING BEEN GRANTED IN CONSIDERATION OF COMPANY ENTERING INTO THIS AGREEMENT AND THE MERGER AGREEMENT, AND INCURRING CERTAIN RELATED FEES AND EXPENSES. The proxy granted by the Majority Shareholder shall be revoked upon termination of this Agreement or the Merger Agreement in accordance with its terms.
Section 3. Representations and Warranties of the Majority Shareholder. The Majority Shareholder represents and warrants to the Company that:
(a) Authorization, Enforceability. If the Majority Shareholder is not a natural person, the execution, delivery and performance by the Majority Shareholder of this Agreement and the consummation by the Majority Shareholder of the transactions contemplated hereby are within the powers of the Majority Shareholder. This Agreement constitutes a valid and binding Agreement of the Majority Shareholder. If the Majority Shareholder is executing this Agreement in a representative or fiduciary capacity, the person signing this Agreement has full power and authority to enter into and perform this Agreement. If the Majority Shareholder is a natural person, the Shares beneficially owned by the Majority Shareholder do not constitute marital property under the laws of the State of Arkansas or any other applicable laws, or if such Shares constitute marital property, the consent of the Majority Shareholder’s spouse is not required for the execution and delivery of this Agreement or the performance by the Majority Shareholder of the obligations of the Majority Shareholder hereunder.
(b) Non-Contravention. The execution, delivery and performance by the Majority Shareholder of this Agreement and the consummation of the transactions contemplated hereby do not and will not (i) violate any applicable law, rule, regulation, judgment, injunction, order or decree to which the Majority Shareholder is a party or by which the Majority Shareholder is bound, (ii) require any consent or other action by any person under, constitute a default under, or give rise to any right of termination, cancellation or acceleration or to a loss of any benefit to which the Majority Shareholder is entitled under any provision of any agreement or other instrument binding on the Majority Shareholder or (iii) result in the imposition of any lien on any asset of the Majority Shareholder.
(c) Ownership of Shares. The Majority Shareholder is the record and beneficial owner of the Shares set forth on the signature page hereto, free and clear of any liens and any other limitations or restrictions (including any restriction on the right to vote or otherwise dispose of such Shares). None of the Shares held by the Majority Shareholder are subject to any voting trust, irrevocable proxy or other agreement or arrangement with respect to the voting of such Shares (other than this Agreement).
(d) Total Shares. Except for the Shares set forth on the signature page hereto, the Majority Shareholder does not beneficially own any (i) shares of capital stock or voting securities of the Parent, (ii) securities of the Parent convertible into or exchangeable for shares of capital stock or voting securities of the Parent or (iii) options or other rights to acquire from the Parent any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Parent.
(e) Finder’s Fees. No investment banker, broker, finder or other intermediary is entitled to a fee or commission from Company or Parent in respect of this Agreement based upon any arrangement or agreement made by or on behalf of the Majority Shareholder.
Section 4. Covenants of the Majority Shareholder. The Majority Shareholder hereby covenants and agrees that:
(a) No Proxies for or Disposition of Shares. Except pursuant to the terms of this Agreement, the Majority Shareholder shall not, without the prior written consent of Company, directly or indirectly, (i) grant any proxies or enter into any voting trust or other agreement or arrangement with respect to the voting of any Shares beneficially owned by the Majority Shareholder, or (ii) sell, transfer, exchange or otherwise dispose of (including by merger, consolidation or otherwise by operation of law) the Shares during the term of this Agreement; provided, however, Majority Shareholder shall be permitted to sell 830,700 shares currently registered for resale with the Securities and Exchange Commission and certain members of Majority Shareholder shall be permitted to complete a current commitment to gift 160,000 shares.
(b) Other Offers.
(i) The Majority Shareholder, in its capacity as a holder of Shares, shall not, directly or indirectly, (1) solicit, initiate or take any action to facilitate or encourage the submission of any Parent Competing Transaction, (2) enter into or participate in any discussions or negotiations with, furnish any information relating to the Parent or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Parent or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any third party that is seeking to make, or has made, a Parent Competing Transaction.
(ii) The Majority Shareholder will promptly notify Company upon obtaining any knowledge of any Parent Competing Transaction or any request for nonpublic information relating to the Parent or any of its Subsidiaries or for access to the properties, books or records of the Parent or any of its Subsidiaries, or any request for a waiver or release under any standstill or similar agreement by any person who indicates that it is considering making, or has made, a Parent Competing Transaction and will keep Company fully informed, on a current basis, of any material developments with respect to any such Parent Competing Transaction, indication or request.
(c) Dissenter’s Rights. Majority Shareholder waives and agrees not to exercise any rights (including, without limitation, Section 4-27-1302 of the ABCA) to demand appraisal of any of the Shares which may arise with respect to the Merger.
Section 6. Miscellaneous.
(a) Further Assurances. Company and the Majority Shareholder will execute and deliver, or cause to be executed and delivered, all further documents and instruments and use its best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations, to consummate and make effective the transactions contemplated by this Agreement.
(b) Notices. All notices, requests and other communications to any party hereunder shall be in writing (including facsimile transmission) and shall be given,
if to Company, to:
Xxxxxx X. Xxxxxx
President and CEO
First National Security Company
000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxxxx, XX 00000
Fax: 000-000-0000
Email: xxxxxx.xxxxxx@xxxxxx.xxx
with a copy to:
C. Xxxx Xxxxxx
Xxxxxxxx, Williams, Selig, Gates & Xxxxxxxx, P. L. L. C.
000 Xxxx Xxxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Email: xxxxxxx@xxxxx.xxx
if to the Majority Shareholder, to:
Xxxxxxx Xxxxxxxx
Bear State Financial Holdings, LLC
000 X. Xxxxxxxxxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
Email: xxxxx@xxxxxxxxxxx.xxx
with a copy to:
Xxxxxx X. Xxxxx
Xxxxx Xxxx LLP
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Email: xxxxxx.xxxxx@xxxxxxxxx.xxx
(c) Amendments; Termination. Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is signed, in the case of an amendment, by each party to this Agreement or in the case of a waiver, by the party against whom the waiver is to be effective. This Agreement shall terminate upon Closing or termination of the Merger Agreement.
(d) Expenses. All costs and expenses incurred in connection with this Agreement shall be paid by the party incurring such cost or expense.
(e) Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided that no party may assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the consent of the other parties hereto, except that Company may transfer or assign its rights and obligations to any affiliate of Company.
(f) Governing Law. This Agreement shall be governed by and construed in accordance with the law of the State of Arkansas, without regard to the conflicts of law rules of such state.
(g) Counterparts; Effectiveness. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement shall become effective when each party hereto shall have received counterparts hereof signed by all of the other parties hereto.
(h) Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority 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 so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such a determination, the parties shall modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.
(i) Specific Performance. The parties hereto agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof in any federal court located in the State of Arkansas or any Arkansas state court, in addition to any other remedy to which they are entitled at law or in equity.
[SIGNATURES APPEAR ON IMMEDIATELY SUCCEEDING PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.
| FIRST NATIONAL SECURITY COMPANY | ||
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By: /s/ Xxxxxx X. Xxxxxx | |
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Name: |
Xxxxxx X. Xxxxxx |
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Title: |
President & CEO |
| MAJORITY SHAREHOLDER: | ||
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Shares: |
15,600,962 Shares of Common Stock and Warrant to Purchase 1,095,000 Shares of Common Stock | |
| By: /s/ Xxxxxxx Xxxxxxxx | ||
| Name: | Xxxxxxx “Goose” Changose | |
| Title: | Chief Operating Officer | |
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