EXHIBIT 10.1
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "AGREEMENT") is entered into as of April 18,
2005, among FIRST BANCTRUST CORPORATION, a Delaware corporation ("FBC"), RANTOUL
FIRST BANK, S.B., an Illinois savings bank ("BANK"), and each of Bank's
directors and executive officers who own voting stock of Bank (collectively
referred to in this Agreement as the "PRINCIPAL STOCKHOLDERS," and individually
as a "PRINCIPAL STOCKHOLDER.")
RECITALS
A. As of the date hereof, each Principal Stockholder is the owner of the
number of shares of Bank's common stock, $1.00 par value per share ("BANK COMMON
STOCK"), as is set forth opposite such Principal Stockholder's name on the
signature page attached hereto and such total number of shares represents
approximately the percentage of the issued and outstanding shares of Bank's
voting stock that is also set forth thereon opposite such Principal
Stockholder's name.
B. FBC is contemplating the acquisition of Bank (the "ACQUISITION"),
pursuant to an Agreement and Plan of Reorganization dated of even date herewith
(the "REORGANIZATION AGREEMENT").
C. FBC is unwilling to expend the substantial time, effort and expense
necessary to implement the Acquisition, including applying for and obtaining
necessary approvals of regulatory authorities, unless all of the Principal
Stockholders enter into this Agreement.
D. Each Principal Stockholder believes it is in his or her best interest
as well as the best interest of Bank for FBC to consummate the Acquisition.
AGREEMENTS
In consideration of the foregoing premises, which are incorporated herein
by this reference, and the covenants and agreements of the parties herein
contained, and as an inducement to FBC to enter into the Reorganization
Agreement and to incur the expenses associated with the Acquisition, the parties
hereto, intending to be legally bound, hereby agree as follows:
SECTION 1. DEFINITIONS; CONSTRUCTION. All terms that are capitalized and
used herein (and are not otherwise specifically defined herein) shall be used in
this Agreement as defined in the Reorganization Agreement. The parties hereby
incorporate by this reference the principles of construction set forth in
Section 1.2 of the Reorganization Agreement.
SECTION 2. REPRESENTATIONS AND WARRANTIES. Each Principal Stockholder
represents and warrants that as of the date hereof, he or she:
(a) owns beneficially and of record the number of shares of Bank
Common Stock as is set forth opposite such Principal Stockholder's name on the
signature page attached hereto, all of which shares are free and clear of all
liens, pledges, security interests, claims,
encumbrances, options, voting agreements, proxies, agreements to sell and
commitments of every kind (collectively, "ENCUMBRANCES");
(b) has the sole, or joint with any other Principal Stockholder,
voting power with respect to such shares of Bank Common Stock, and that he or
she does not own or hold any rights to acquire any additional shares of Bank's
capital stock (by exercise of stock options or otherwise) or any interest
therein or any voting rights with respect to any additional shares; and
(c) has all necessary power and authority to enter into this
Agreement and further represents and warrants that this Agreement is the legal,
valid and binding agreement of such Principal Stockholder, and is enforceable
against such Principal Stockholder in accordance with its terms.
SECTION 3. VOTING AGREEMENT. Each Principal Stockholder hereby agrees that
at any meeting of Bank's stockholders however called, and in any action by
written consent of Bank's stockholders, such Principal Stockholder shall vote
all shares of Bank Common Stock now or at any time hereafter owned or controlled
by him or her:
(a) in favor of the Acquisition and the other Contemplated
Transactions as described in the Reorganization Agreement, and any action or
agreement that would reasonably be expected to facilitate the Contemplated
Transactions;
(b) against any acquisition of any capital stock of Bank through
purchase, merger, consolidation or otherwise, or the acquisition by any method
of a substantial portion of the assets of Bank, in any such case by any party
other than FBC or its Subsidiaries (an "ACQUISITION TRANSACTION");
(c) against any action or agreement that would reasonably be
expected to result in a material breach of any covenant, representation or
warranty or any other obligation of Bank under the Reorganization Agreement; and
(d) against any action or agreement that would reasonably be
expected to impede or interfere with the Contemplated Transactions, including
any: (i) change in Bank's board of directors; (ii) change in Bank's present
capitalization; or (iii) other material change in Bank's corporate structure or
business, in each such case except as otherwise agreed to in writing by FBC.
SECTION 4. ADDITIONAL COVENANTS. Except as required by law or as may be
required pursuant to the exercise of his or her fiduciary duties pursuant to
Section 6.9% of the Reorganization Agreement, each Principal Stockholder agrees
that he or she will:
(a) not, and will not permit any of his or her Affiliates, prior to
the Effective Time to sell, assign, transfer or otherwise dispose of, create an
Encumbrance with respect to, or permit to be sold, assigned, transferred or
otherwise disposed of, any Bank Common Stock owned of record or beneficially by
such Principal Stockholder, whether such shares of Bank Common Stock are owned
of record or beneficially by such Principal Stockholder on the date of this
Agreement or are subsequently acquired by any method, except: (i) for transfers
by will or by operation of law (in which case this Agreement shall bind the
transferee); (ii) with the prior
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written consent of FBC (which consent shall not be unreasonably withheld), for
any sales, assignments, transfers or other dispositions necessitated by
hardship; or (iii) as FBC may otherwise agree in writing;
(b) not, and will not permit any of his or her Affiliates, directly
or indirectly (including through its Representatives), to initiate, solicit or
encourage any discussions, inquiries or proposals with any third party relating
to an Acquisition Transaction, or provide any such person with information or
assistance or negotiate with any such person with respect to an Acquisition
Transaction or agree to or otherwise assist in the effectuation of any
Acquisition Transaction;
(c) not vote or execute any written consent to rescind or amend in
any manner any prior vote or written consent to approve or adopt the
Reorganization Agreement or any of the other Contemplated Transactions;
(d) at FBC's request, use his or her best efforts to cause any
necessary meeting of Bank's stockholders to be duly called and held, or any
necessary consent of stockholders to be obtained, for the purpose of approving
or adopting the Reorganization Agreement and the other Contemplated
Transactions;
(e) cause any of his or her Affiliates to cooperate fully with FBC
in connection with the Reorganization Agreement and the Contemplated
Transactions; and
(f) execute and deliver such additional instruments and documents
and take such further action as may be reasonably necessary to effectuate and
comply with his or her respective obligations under this Agreement.
SECTION 5. TERMINATION. Notwithstanding any other provision of this
Agreement, this Agreement shall automatically terminate on the earlier of: (i)
the date of termination of the Reorganization Agreement as set forth in Article
11 thereof (including, but not limited to, a termination pursuant to Section
11.4 thereof), as such termination provisions may be amended by Bank and FBC
from time to time; or (ii) the Effective Time.
SECTION 6. REMEDIES. Each Principal Stockholder understands and
acknowledges that if he or she should breach any of his or her covenants
contained in this Agreement, the damage to FBC would be indeterminable in view
of the inability to measure the ultimate value and benefit to FBC resulting from
its contemplated future ownership and control of Bank, and that FBC therefore
would not have an adequate remedy at law to compensate FBC for any such breach.
Each Principal Stockholder agrees that in addition to any other remedy available
to FBC at law or in equity, FBC shall be entitled to specific performance of
this Agreement by such Principal Stockholder upon application to any court
having jurisdiction over the parties. Accordingly, each Principal Stockholder:
(a) irrevocably waives, to the extent permitted by law, any defense that he or
she might have based on the adequacy of a remedy at law that might be asserted
as a bar to specific performance, injunctive relief or other equitable relief;
and (b) agrees to the granting of injunctive relief without the posting of any
bond and further agrees that if any bond shall be required, such bond shall be
in a nominal amount.
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SECTION 7. AMENDMENT AND MODIFICATION. This Agreement may be amended,
modified or supplemented at any time by the written approval of such amendment,
modification or supplement by Bank, FBC and all of the Principal Stockholders.
SECTION 8. ENTIRE AGREEMENT. This Agreement evidences the entire agreement
among the parties hereto with respect to the matters provided for herein and
there are no agreements, representations or warranties with respect to the
matters provided for herein other than those set forth herein and in the
Reorganization Agreement and written agreements related thereto. Except for the
Reorganization Agreement, this Agreement supersedes any agreements among any of
Bank, its stockholders or FBC concerning the acquisition, disposition or control
of any Bank Common Stock.
SECTION 9. ABSENCE OF CONTROL. Subject to any specific provisions of this
Agreement, it is the intent of the parties to this Agreement that FBC shall not
by reason of this Agreement be deemed (until consummation of the Contemplated
Transactions) to control, directly or indirectly, any other party and shall not
exercise, or be deemed to exercise, directly or indirectly, a controlling
influence over the management or policies of any such other party. Pursuant to
Section 2.7 in the Reorganization Agreement, nothing contained herein shall be
deemed to grant FBC an ownership interest in any shares of Bank Common Stock.
SECTION 10. INFORMED ACTION. Each Principal Stockholder acknowledges that
he or she has had an opportunity to be advised by counsel of his or her choosing
with regard to this Agreement and the transactions and consequences contemplated
hereby. Each Principal Stockholder further acknowledges that he or she has
received a copy of the Reorganization Agreement and is familiar with its terms.
SECTION 11. SEVERABILITY. The parties agree that if any provision of this
Agreement shall under any circumstances be deemed invalid or inoperative, this
Agreement shall be construed with the invalid or inoperative provisions deleted
and the rights and obligations of the parties shall be construed and enforced
accordingly.
SECTION 12. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one and the same instrument.
SECTION 13. GOVERNING LAW. All questions concerning the construction,
validity and interpretation of this Agreement and the performance of the
obligations imposed by this Agreement shall be governed by the internal laws of
the State of Illinois applicable to agreements made and wholly to be performed
in such state without regard to conflicts of laws.
SECTION 14. JURISDICTION AND SERVICE OF PROCESS. Any action or proceeding
seeking to enforce any provision of, or based on any right arising out of, this
Agreement shall be brought only in the courts of the State of Illinois, County
of Xxxxx or, if it has or can acquire jurisdiction, in the United States
District Court serving the County of Xxxxx, and each of the parties consents to
the jurisdiction of such courts (and of the appropriate appellate courts) in any
such action or proceeding and waives any objection to venue laid therein.
Process in any action or proceeding referred to in the preceding sentence may be
served on any party anywhere in the world.
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SECTION 15. SUCCESSORS; ASSIGNMENT. This Agreement shall be binding upon
and inure to the benefit of Bank and FBC, and their successors and permitted
assigns, and the Principal Stockholders and their respective spouses, executors,
personal representatives, administrators, heirs, legatees, guardians and other
legal representatives. This Agreement shall survive the death or incapacity of
any Principal Stockholder. This Agreement may be assigned only by FBC, and then
only to a Subsidiary of FBC.
SECTION 16. DIRECTORS. The parties hereto acknowledge that each Principal
Stockholder is entering into this agreement solely in his or her capacity as a
Bank Stockholder and, notwithstanding anything to the contrary in this
Agreement, nothing in this Agreement is intended or shall be construed to
require any Principal Stockholder, in his or her capacity as a director of Bank,
to act or fail to act in accordance with his or her fiduciary duties in such
director capacity. Furthermore, no Principal Stockholder makes any agreement or
understanding herein in his or her capacity as a director of Bank. Nothing in
this Section 16 shall in any way limit, modify or abrogate any of the
obligations of the Principal Stockholders hereunder to vote the shares owned by
him or her in accordance with the terms of the Agreement and not to transfer any
shares except as permitted by this Agreement.
[THIS SPACE LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
individually, or have caused this Agreement to be executed by their respective
officers, on the day and year first written above.
RANTOUL FIRST BANK, S.B. FIRST BANCTRUST CORPORATION
By: /s/ Xxxxxx Xxxxxxxxx By: /s/ Xxxxx X. Xxxxxx
----------------------- ------------------------------
Name: Xxxxxx Xxxxxxxxx Name: Xxxxx X. Xxxxxx
Title: President/CEO Title: President & CEO
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[SIGNATURE PAGE OF VOTING AGREEMENT CONTINUED]
PERCENTAGE
PRINCIPAL STOCKHOLDERS SHARES OWNED OWNERSHIP
------------ ----------
/s/ Xxxxxx Xxxxxxxxx [9,745] [5.10]
------------------------
Signature
[Xxxxxx Xxxxxxxxx ]
------------------------
Printed Name
/s/ Xxxxxxx X. Xxxxxx [1,000] [0.52]
------------------------
Signature
[Xxxxxxx X. Xxxxxx ]
-----------------------
Printed Name
/s/ Xxxxx X. Xxxxxx [2,000] [1.05]
-----------------------
Signature
[Xxxxx X. Xxxxxx ]
-----------------------
Printed Name
/s/ Xxxxxxx Xxxxxxxx [2,500] [1.31]
-----------------------
Signature
[Xxxxxxx Xxxxxxxx ]
-----------------------
Printed Name
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[SIGNATURE PAGE OF VOTING AGREEMENT CONTINUED]
PERCENTAGE
PRINCIPAL STOCKHOLDERS SHARES OWNED OWNERSHIP
------------ ----------
/s/ Xxxx X. Xxxxxx [100] [_____]
----------------------
Signature
[Xxxx X. Xxxxxx ]
-----------------------
Printed Name
P
/s/ Xxxxx Xxxxxx [1,000] [0.52]
-----------------------
Signature
[Xxxxx Xxxxxx ]
-----------------------
Printed Name
/s/ Xxxxxx X. Xxxxx [2,420] [1.27]
-----------------------
Signature
[Xxxxxx X. Xxxxx ]
-----------------------
Printed Name
/s/ Xxxxx Xxxxxx [100] [_______]
-----------------------
Signature
[Xxxxx Xxxxxx ]
-----------------------
Printed Name
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