RELATIONSHIP AGREEMENT
Exhibit
99.4
THIS RELATIONSHIP AGREEMENT (the
“Agreement”) is made and entered into as of the 7th day of
March, 2008, by and among TIB Financial Corp., a Florida corporation (the
“Company”) and those individuals and entities who are parties to this Agreement
by signing the signature page to this Agreement (collectively, the
“Purchaser”).
PREAMBLE
The Purchaser currently is the
beneficial owner of ____________ shares of Company Common Stock, which consists
of ____________ shares owned as of the date of this Agreement and ______________
shares which are subject to a Common Stock Warrant (the “Warrant”) granted to
the Purchaser. These shares are referred to as the “Owned
Shares.” The Parties desire to enter into this Agreement to set forth
their understanding regarding the acquisition by the Purchaser of additional
shares of Company Common Stock over and above the Owned Shares.
In consideration of the above, and the
mutual warranties, representations, covenants and agreements set forth herein,
the Parties agree as follows:
ARTICLE
ONE
DEFINITIONS
As used in this Agreement and any
amendments hereto, the following terms shall have the following meanings
respectively:
1.1 “1933
Act” shall mean the Securities Act of 1933, as amended, and “1934 Act” shall
mean the Securities Exchange Act of 1934, as amended.
1.2 “Affiliate”
shall have the meaning set forth in regulations of the Securities and Exchange
Commission included in Rule 405 under the 1933 Act, or, if amended, then as
amended and in effect at the time in question.
1.3 “Company
Common Stock” shall mean the $.10 par value common stock of the Company and any
security which is exchanged for such common stock in any transaction resulting
from any recapitalization or any combination or merger or other transaction of
the Company regardless of whether the Company is the surviving entity, if,
immediately after consummation of such transaction, at least 66 2/3% of the
shareholders of the resulting entity are shareholders who were shareholders of
the Company prior to such transaction.
1.4 “Beneficial
Owner” (and various derivations of such term such as “beneficially owns” and
“beneficially owned”) shall have the meaning set forth in the regulations of the
Securities and Exchange Commission in Rule 13d-3 under the 1934 Act, or, if
amended, then as amended and in effect at the time in question; provided, that
for purposes of this Agreement, any option, warrant, right, conversion privilege
or arrangement to purchase, acquire or vote Company Common Stock regardless of
the time period during or at which it may be exercised and regardless of the
consideration paid shall be deemed to give the holder thereof beneficial
ownership of the Company Common Stock to which it relates, except to the extent
that such option, warrant, right, privilege or arrangement is, by its terms, no
longer exercisable or convertible into shares of Company Common Stock due to the
expiration thereof. For purposes of determining the outstanding or
percentage of outstanding Company Common Stock that may be owned for purposes of
this Agreement, the beneficial ownership of a particular person or group shall
be calculated and based upon the amount of (i) Company Common Stock that are
issued and outstanding at the time in question and (ii) Company Common Stock not
outstanding but which are subject to options, warrants, rights or conversion
privileges as described in this Section and are owned by such person or group or
combination of groups. Any Company Common Stock which are subject to
options, warrants, rights or conversion privileges as described in this Section
and are owned by a particular person or group or combination of groups shall not
be deemed to be outstanding for the purpose of determining the percentage of
outstanding Company Common Stock owned by any other person or group or
combination of groups.
1.5 “Purchaser
Group” shall mean: the Purchaser and any Affiliate of the
Purchaser.
1.6 “Party”
shall mean either the Company, on the one hand, or Purchaser, on the other hand,
and “Parties” shall mean the Company and Purchaser.
ARTICLE
TWO
REPRESENTATIONS AND
WARRANTIES
2.1 Representations and
Warranties of the Company. The Company hereby represents and
warrants to Purchaser as follows:
(a) Organization, Standing and
Authority. The Company is a corporation in good standing under
the laws of the State of Florida. The Company has corporate power and
authority to execute and deliver this Agreement and, subject to the conditions
set forth in this Agreement, to perform its terms.
(b) Authority. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated herein, have been duly and validly authorized by all
necessary corporate action in respect thereof on the part of the
Company. This Agreement represents a valid and binding obligation of
the Company.
2.2 Representations and
Warranties of Purchaser. Purchaser hereby represents and
warrants to the Company as follows:
(a) Authority. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated herein, have been duly and validly authorized by all
necessary action in respect thereof on the part of the
Purchaser. This Agreement represents a valid and binding obligation
of the Purchaser..
(b) Ownership of Company Common
Stock. As of the date of this Agreement, Purchaser
beneficially owns the Owned Shares. As of the date of this Agreement
no member of the Purchaser Group (i) except for the Warrant, has any right to
acquire or vote, or to acquire the right to vote, any other Company Common
Stock, whether pursuant to any outstanding warrant, option, right, call, or
agreement or commitment of any character relating to Company Common Stock, or
otherwise, or (ii) has any understanding which, if implemented, could lead to
the acquisition or voting by any member of the Purchaser Group of any other
Company Common Stock.
ARTICLE
THREE
COVENANTS AND AGREEMENTS OF
PURCHASER
Purchaser hereby covenants and agrees
with the Company as follows:
3.1 Acquisition of Common
Stock. No member of the Purchaser Group shall, directly or
indirectly, acquire, or acquire beneficial ownership of, any additional Company
Common Stock, other than pursuant to dividends or distributions of Company
Common Stock made on or to Company Common Stock, if the effect of such
acquisition, calculated at the time of acquisition, would cause the aggregate
Company Common Stock then so beneficially owned by the Purchaser Group
(including the Owned Shares) to be more than 9.9% of the outstanding shares of
Company Common Stock. Notwithstanding the provision of this Section,
no member of the Purchaser Group shall be obligated to dispose of any Company
Common Stock if and to the extent the aggregate percentage ownership of the
Purchaser Group is increased as a result of a recapitalization of the Company,
or as a result of any options, warrants or other securities issued to all
holders of Company Common Stock, or as a result of any repurchase or redemption
of shares of Company Common Stock by the Company.
3.2 General
Support. From the date of this Agreement until such date as
Purchaser no longer is a Beneficial Owner of any Company Common Stock, no member
of the Purchaser Group shall, directly or indirectly: (i) initiate the
solicitation of proxies with respect to any Company Common Stock; (ii) solicit
proxies or “become a participant” in a “solicitation” (as such terms are defined
in Regulation 14A under the 0000 Xxx) with respect to any Company Common Stock
in opposition to the recommendation of the Board of Directors with respect to
any matter; (iii) initiate a tender offer to acquire any Company Common Stock;
(iv) initiate or institute any legal, regulatory or administrative actions or
proceedings in any court of competent jurisdiction or appropriate regulatory or
administrative body or agency with respect to Company, except with respect to
the enforcement of this Agreement; or (v) make any public statements which are
materially inconsistent with the positions taken by the Board of Directors while
there is pending a “solicitation” (as such terms are defined in Regulation 14A
under the 0000 Xxx) with respect to any Company Common Stock in opposition to
the recommendation of the Board of Directors with respect to any matter or while
there is pending any announcement by a party of an intention to initiate, or the
initiation, of a tender offer to acquire any Company Common
Stock. The parties understand and agree that the provisions of
Section 3.2(iv) shall not preclude any Purchaser from instituting any legal
action or proceeding in any court of competent jurisdiction (i) to enforce the
Purchaser’s rights as a shareholder or Warrantholder, including the Purchaser’s
rights under that certain Registration Rights Agreement of even date between the
Company and the Purchaser, (ii) arising out of ordinary banking transactions
between any subsidiary bank of TIB and the Purchaser, (iii) brought by the
Purchaser in a fiduciary capacity on behalf of other Purchasers or other
entities holding shares of Company Common Stock, or (iv) brought by the
Purchaser in a fiduciary capacity as a director of the Company. The
parties understand and agree that the provisions of Section 3.2(v) shall not
apply to any public statements made by a Purchaser following consultation with
legal counsel for such Purchaser that such statements are consistent with such
Purchaser’s fiduciary duties under law. The provisions of this
Section 3.2 shall not be applicable during those periods prior to the
termination of this Agreement at such times when the beneficial ownership of
shares of Company Common Stock by the Purchaser Group is less than 5% of the
outstanding shares of Company Common Stock .
ARTICLE
FOUR
ADDITIONAL
AGREEMENTS
4.1 Further
Assurances. From time to time after the execution of this
Agreement, as and when requested by the Company, the Parties shall take or cause
to be taken such further or other action as shall be necessary to carry out the
purposes of this Agreement.
ARTICLE
FIVE
TERM OF
AGREEMENT
5.1 Termination. This
Agreement may be terminated:
(a) by
the mutual written agreement of all of the Parties;
(b) by
Purchaser or by the Company if the other Party fails to observe its obligations
under this Agreement in any material respect; or
(c) by
Purchaser upon the closing date of an Acquisition. For purposes of
this Agreement, the term “Acquisition” shall mean (a) a merger in which the
Company is not the surviving entity or a sale by the Company or TIB Bank of all
or substantially all of its assets, (b) the acquisition by any individual or
group (other than the Company) of TIB Bank by means of a merger, consolidation
or purchase of 80% or more of its outstanding shares, or (c) the
acquisition by any individual or group of beneficial ownership of more than 50%
of the outstanding shares of the Company. The term “group” and the
concept of beneficial ownership shall have such meanings ascribed thereto, as
set forth in the Securities Exchange Act of 1934 and the regulations and rules
thereunder. For purposes of this Agreement, where an Acquisition
results from a series of related transactions, the Acquisition shall be deemed
to have occurred on the date of the consummation of the first such
transaction.
5.2 Survival of
Covenants. If this Agreement terminates pursuant to Section
5.1 of this Agreement, from and after the date of such termination, none of the
Parties shall have any continuing liability or obligation to perform any of
their covenants or agreements pursuant to this Agreement.
5.3 Remedies. The
Parties recognize and hereby acknowledge that it may be difficult to accurately
measure the amount of damages that would result to a Party by reason of a
failure of any of the other Parties to perform any of the obligations imposed on
it by this Agreement. The Parties accordingly agree that each such
Party who has not elected to terminate this Agreement shall be entitled to an
injunction to prevent breaches of this Agreement and to enforce specifically the
terms and provisions hereof in any court of the United States or any state
having jurisdiction, in addition to any other remedies to which such Party may
be entitled at law or in equity in accordance with this Agreement.
ARTICLE
SIX
MISCELLANEOUS
6.1 Notices. Any
notices or other communications required or permitted under this Agreement shall
be effective only if it is in writing and delivered personally, by facsimile
transmission, or by registered or certified mail, postage prepaid, addressed as
follows:
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Company:
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000
0xx
Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx,
XX 00000-0000
Attention: Xxxxxx
X. Xxxx
President
and Chief Executive Officer
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Purchasers:
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to
such addresses as are on the stock record books of TIB, or such other
address as the Purchasers provide through written notice to
TIB
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or such
other address as shall be furnished in writing by any of the
Parties. Any such notice or communication shall be deemed to have
been given as of the date so personally delivered or, if mailed, upon the date
received.
6.2 Amendments. This
Agreement may be amended by a subsequent writing signed by all of the Parties
upon the approval of each of the Parties.
6.3 Counterparts. This
Agreement may be executed in one or more counterparts all of which shall be one
and the same Agreement and shall become effective when one or more counterparts
have been signed by each of the Parties and delivered to each of the other
Parties.
6.4 Headings. The
headings in this Agreement are for convenience only and shall not affect the
construction or interpretation of this Agreement.
6.5 Successors and
Assigns. All terms and conditions of this Agreement shall be
binding upon and inure to the benefit of and be enforceable by heirs or devisees
to Purchaser and by any successor to the Company that does not cause this
Agreement to be terminated pursuant to the terms of Section 5.1 of this
Agreement; provided, however, that, notwithstanding anything herein to the
contrary, Purchaser and any other member of the Purchaser Group may in any event
sell, transfer or otherwise dispose of Company Common Stock owned by them to
third parties who are not members of the Purchaser Group and upon such
disposition the obligations of this Agreement shall remain applicable to
Purchaser but such third parties shall receive such securities free of any
obligations and restrictions contained in this Agreement. Except as
otherwise provided in this Section 6.5, any assignment of the rights and
obligations of the Parties under this Agreement shall be effective upon a
written agreement signed by all the Parties.
6.6 Enforceability. In
the event any term or provision of this Agreement is deemed to be invalid or
unenforceable, this entire Agreement shall be deemed to be invalid or
unenforceable and be of no further force and effect.
6.7 Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida, except to the extent that the
laws of the United States apply.
6.8 Venue. The
sole and exclusive venue for any action arising out of this Agreement shall be a
state or federal court situated in Xxxxxxx County, Florida, and the parties
agree to the personal jurisdiction of such courts. If any legal
action or other proceeding is brought for the enforcement of this Agreement, or
because of an alleged dispute, breach, default or misrepresentation in
connection with any provision of this Agreement, the successful or prevailing
party shall be entitled to recover reasonable attorneys’ fees, court costs and
expenses, incurred in that action or proceeding, in addition to any other relief
to which such party may be entitled.
IN WITNESS WHEREOF, each of the Parties
has caused this Agreement to be duly executed and delivered as of the date above
written.
By:
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Its: _____________________________________
PURCHASER:
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