STOCKHOLDERS AGREEMENT
Exhibit 2.2
STOCKHOLDERS AGREEMENT, dated as of November 13, 2006 (this “Agreement”), by and among TIB
Financial Corp., a Florida corporation (“TIB”) and each of the stockholders of The Bank of Venice,
a Florida banking corporation (the “Bank”), whose names appear on the signature pages hereto (each,
a “Stockholder” and, together, the “Stockholders”).
WHEREAS, concurrently with the execution and delivery of this Xxxxxxxxx, XXX, XXX Interim Bank
(“TIB-SUB”), an interim banking corporation in organization under the laws of the State of Florida
as a direct wholly-owned subsidiary of TIB (“TIB-SUB”), and the Bank are entering into an Plan of
Merger and Merger Agreement (the “Merger Agreement”), pursuant to which (and on the terms and
subject to the conditions set forth in therein), among other things, TIB-SUB will merge with and
into the Bank (the “Merger”) and each issued and outstanding share of common stock, par value $5.00
per share, of the Bank (the “Common Stock”) will be converted into the right to receive the Merger
consideration set forth in the Merger Agreement; and
WHEREAS, as of the date hereof, each Stockholder is the Beneficial Owner (defined below) of
such number of shares of Common Stock as is set forth opposite such Stockholder’s name on Annex
A hereto, and the Stockholders collectively are the Beneficial Owners and record owners of, and
have the sole right to vote and dispose of, an aggregate of 241,751 shares of Common Stock (the
“Owned Shares” and together with any shares of Common Stock of which any Stockholder acquires
Beneficial Ownership after the date hereof and prior to the termination hereof, whether upon
purchase or otherwise, are collectively referred to herein as the “Covered Shares”); and
WHEREAS, as an inducement and condition to entering into the Merger Agreement, TIB and TIB-SUB
have required that the Stockholders agree, and the Stockholders have agreed, to enter into this
Agreement.
NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements
set forth herein, the parties hereto agree as follows:
ARTICLE I
VOTING AGREEMENT
Section 1.01 Agreement to Vote. (a) Each Stockholder undertakes that, prior to any termination in
accordance with Section 4.01 hereof, at such time as the Bank conducts a meeting of, or otherwise
seeks a vote or consent of, its stockholders in connection with the approval and adoption of the
Merger Agreement and the Merger (any such meeting or any adjournment thereof, or such consent
process, the “Bank Stockholders Meeting”), such Stockholder shall, and shall cause its Affiliates
to, vote or provide a consent with respect to all Covered Shares Beneficially Owned by such
Stockholder or its Affiliates, as the case may be, and over which such Stockholder or one of its
Affiliates has voting power, in favor of the Merger Agreement and the Merger and each of the other
actions contemplated by the Merger Agreement and this Agreement and actions required in furtherance
thereof and hereof.
(b) Without limiting the foregoing, it is understood that the obligations under this Section
1.01 shall not be affected by any recommendation of the board of directors of the Bank as to the
Merger at the time of any such meeting or consent solicitation.
Section 1.02 Defined Terms. Capitalized terms not otherwise defined in this Agreement
shall have meanings given to such terms in the Merger Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS
Each Stockholder, severally and not jointly, represents and warrants to TIB as follows:
Section 2.01
Authority; Authorization. (a) Such Stockholder has all requisite power and authority
to execute and deliver this Agreement and perform such Stockholder’s obligations hereunder.
(b) This Agreement has been duly and validly executed and delivered by such Stockholder and,
assuming the authorization, execution and delivery of this Agreement by TIB and each other
Stockholder party hereto, constitutes a legal, valid and binding obligation of such Stockholder,
enforceable against such Stockholder in accordance with its terms.
(c) If such Stockholder is married and the Owned Shares set forth on Annex A hereto
opposite such Stockholder’s name constitute property owned jointly with Stockholders’ spouse, this
Agreement constitutes the valid and binding agreement of, such Stockholder’s spouse. If this
Agreement is being executed in a representative or fiduciary capacity, the Person signing this
Agreement has full power and authority to enter into and perform this Agreement
Section 2.02 Ownership of Securities. (a) Such Stockholder is the record and Beneficial Owner of
the Covered Shares set forth opposite such Stockholder’s name on Annex A hereto, and such
Stockholder has good and marketable title (which may include holding in nominee or “street name”)
to all such Covered Shares, free and clear of any Lien and any other restriction (including any
restriction on the right to vote or otherwise dispose of the Covered Shares) other than as created
by this Agreement.
(b) Except for the Covered Shares set forth beside such Stockholder’s name on Annex A
hereto, such Stockholder does not Beneficially Own any shares of the capital stock of the Bank.
(c) For the purposes of this Agreement, the following terms shall have the meanings assigned
below:
(i) “Beneficially Owned” or “Beneficial Ownership” has the meaning given to such term in
Rule 13d-3 under the Exchange Act (disregarding the phrase “within 60 days” in paragraph
(d)(1)(i) thereof). Without limiting the generality of the foregoing, a person shall be
deemed to be the Beneficial Owner of shares (A) which such person or any of its Affiliates or
associates (as such term is defined in Rule 12b-2 under the Exchange Act) beneficially owns,
directly or indirectly, (B) which such person or any of
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its Affiliates or associates (as such
term is defined in Rule 12b-2 of the Exchange Act) has, directly or indirectly, (1) the right
to acquire (whether such right is exercisable immediately or subject only to the passage of
time), pursuant to any agreement, arrangement or understanding or upon the exercise of
consideration rights, exchange rights, warrants, options or otherwise, or (2) the right to
vote pursuant to any agreement, arrangement or understanding or (C) which are beneficially
owned, directly
or indirectly, by any other persons with whom such person or any of its Affiliates or
associates has any agreement, arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of such shares.
(ii) “Beneficial Owner” means, with respect to any securities, a Person who has
Beneficial Ownership of such securities.
Section 2.03 Non-Contravention. (a) The execution and delivery of this Agreement by such
Stockholder does not and the performance of this Agreement by such Stockholder will not (i)
violate, conflict with, or result in the breach of or constitute a default (or an event which with
notice or lapse of time or both would become a default) under, or result in the termination of, or
accelerate the performance required by, or result in a right of termination or acceleration under,
any note, bond, mortgage, indenture, lease, license, contract, agreement or other instrument or
obligation to which such Stockholder is a party or by which any of his properties (including the
Covered Shares) may be bound, or (ii) violate or conflict with any Order or Law applicable to such
Stockholder or by which any of his respective properties may be bound.
(b) There is no Action pending or, to the knowledge of such Stockholder, threatened against
such Stockholder that questions the validity of this Agreement or any action taken or to be taken
by such Stockholder in connection with this Agreement.
(c) Without limiting the generality of the foregoing, all proxies or powers-of-attorney
heretofore given by such Stockholder in respect of any of the Owned Shares, if any, are not
irrevocable and all such proxies and powers-of-attorney have been properly revoked or are no longer
in effect as of the date hereof.
Section 2.04 Reliance by TIB and TIB-SUB. Such Stockholder understands and acknowledges that TIB
and TIB-SUB are entering into the Merger Agreement in reliance upon such Stockholder’s execution,
delivery and performance of this Agreement.
ARTICLE III
COVENANTS OF STOCKHOLDERS
Section 3.01 No Solicitation. Each of the Stockholders shall not and shall cause its Affiliates
not to directly or indirectly solicit, initiate or encourage any inquiries or proposals from,
discuss or negotiate with, or provide any non-public information to, any Person relating to, or
otherwise facilitate, any Acquisition Proposal other than the Merger Agreement and the Merger. In
addition, no Stockholder or any of its Affiliates shall, directly or indirectly, make any proposal
which constitutes, or could reasonably be expected to lead to, an Acquisition Proposal other than
the Merger Agreement and the Merger.
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Section 3.02 Restrictions on Transfer and Proxies; Non-Interference. (a) Each
Stockholder undertakes that, except as contemplated by this Agreement or the Merger Agreement, such
Stockholder shall not and shall cause its Affiliates not to (i) grant or agree to grant any proxy
or power-of-attorney with respect to any Covered Shares (except pursuant to this Agreement) or (ii)
Transfer or agree to Transfer any Covered Shares other than with TIB’s prior written consent. For
purposes of this Agreement, “Transfer” shall mean, with respect to a security, to offer, sell,
contract to sell, pledge or otherwise dispose of (or enter into any transaction which is designed
to, or might reasonably be expected to, result in the disposition of (whether by actual disposition
or effective economic disposition due to cash settlement or otherwise)), directly or indirectly,
any shares of capital stock of the Bank or any securities convertible into, or exercisable or
exchangeable for such capital stock, or publicly announce an intention to effect any such
transaction.
(b) Each Stockholder further agrees not to take any action that would or is reasonably likely
to (i) make any representation or warranty contained herein untrue or incorrect in any material
respect or (ii) have the effect of preventing such Stockholder from performing its obligations
under this Agreement.
Section 3.03 Dissenters’ Rights. Each Stockholder agrees not to exercise any dissenters’ or
appraisal rights (including, without limitation, under any set forth in Section 658.44, Florida
Statutes) as to any shares of capital stock of the Bank which may arise with respect to the Merger.
Section 3.04 Stop Transfer. Each Stockholder agrees that it shall not request that the Bank
register the transfer (book-entry or otherwise) of any certificate or uncertificated interest
representing any Covered Shares, unless such transfer is made in compliance with this
Agreement.
Section 3.05 Further Assurances; Cooperation. (a) Each Stockholder, without further
consideration, will (provided that neither TIB nor TIB-SUB is in material breach of the terms of
the Merger Agreement), (i) use all reasonable efforts to cooperate with TIB, TIB-SUB and the Bank
in furtherance of the transactions contemplated by the Merger Agreement, (ii) promptly execute and
deliver such additional documents that may be reasonably necessary in furtherance of the
transactions contemplated by the Merger Agreement, and take such reasonable actions as are
necessary or appropriate to consummate such transactions and (iii) promptly provide any
information, and make all filings, reasonably requested by the Bank, TIB or TIB-SUB for any
regulatory application or filing made or approval sought in connection with such transactions
(including filings with any Regulatory Authority).
(b) Each Stockholder hereby consents, and shall cause its Affiliates to consent, to the
publication and disclosure in the Proxy Statement (and, as and to the extent otherwise required by
Law or any Governmental Authority, in any other documents or communications provided by TIB,
TIB-SUB or the Bank to any Governmental Authority or to securityholders of the Bank or TIB) of such
Stockholder’s identity and Beneficial Ownership of the Covered Shares, the nature of such
Stockholder’s commitments, arrangements and understandings under and relating to this Agreement and
the Merger Agreement and any additional requisite information regarding the
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relationship of such
Stockholder and its Affiliates with TIB and its Subsidiaries and/or the Bank and its Subsidiaries.
ARTICLE IV
MISCELLANEOUS
Section 4.01 Termination. This Agreement shall terminate and become null and void
upon the earlier of (a) the Effective Time and (b) the termination of the Merger Agreement in
accordance with its terms. Any such termination shall be without prejudice to liabilities arising
hereunder before such termination.
Section 4.02 Stockholder Capacity. Notwithstanding anything herein to the contrary, each
Stockholder has entered into this Agreement solely in such Stockholder’s capacity as the Beneficial
Owner of Covered Shares and, if applicable, nothing herein shall limit or affect any actions taken
or omitted to be taken at any time by such Stockholder in his or her capacity as an officer or
director of the Bank.
Section 4.03 Amendment; Waivers. This Agreement may not be amended, changed, supplemented, or
otherwise modified or terminated, except upon the execution and delivery of a written agreement
executed by the parties hereto; provided, that TIB may waive compliance by any Stockholder
with any representation, agreement or condition otherwise required to be complied with by such
Stockholder under this Agreement or release such Stockholder from its obligations under this
Agreement, but any such waiver or release shall be effective only if in writing and executed by TIB
and only with respect to such Stockholder.
Section 4.04 Expenses. Subject to Section 4.11(c), all costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by the party incurring
such expenses.
Section 4.05 Notices. All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be given (and shall be deemed to have been duly given upon
receipt) by delivery in person, by facsimile or by registered or certified mail (postage prepaid,
return receipt requested) to the respective parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
(a) | if to any Stockholder: |
c/o The Bank of Venice
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Facsimile: (000) 000-0000
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Facsimile: (000) 000-0000
with an additional copy (which shall not constitute notice) to:
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Xxxxxx & Xxxxx LLP
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxx, Esquire
Facsimile: (000) 000-0000
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxx, Esquire
Facsimile: (000) 000-0000
(b) | if to TIB: |
TIB Financial Corp.
000 0xx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxx
Facsimile: (000) 000-0000
000 0xx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxx
Facsimile: (000) 000-0000
with additional copies (which shall not constitute notice) to:
Xxxxx Xxxxxxxxx PA
000 X. Xxxxxx Xxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx, Esquire
Facsimile: (000) 000-0000
000 X. Xxxxxx Xxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx, Esquire
Facsimile: (000) 000-0000
Section 4.07 Entire Agreement; Assignment. This Agreement constitutes the entire agreement
among the parties with respect to the subject matter hereof and supersedes all other prior
agreements and understandings, both written and oral, among the parties with respect to the subject
matter hereof. Neither this Agreement, nor any of the rights and obligations under this Agreement
shall be transferred by any party without the prior written consent of the other parties hereto;
provided that TIB may transfer any of its rights and obligations to any direct or indirect
wholly-owned Subsidiary of TIB, but no such transfer shall relieve TIB of its obligations
hereunder.
Section 4.08 Parties in Interest. This Agreement shall be binding upon and inure solely to the
benefit of each party hereto and their respective successors and permitted assigns. Nothing in
this Agreement, express or implied, is intended to or shall confer upon any other Person any
rights, benefits or remedies of any nature whatsoever under or by reason of this Agreement.
Section 4.09 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 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.
Section 4.10 Specific Performance; Remedies. Each of the Stockholders acknowledges and agrees that
in the event of any breach of this Agreement, TIB would be irreparably and
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immediately harmed and
could not be made whole by monetary damages. It is accordingly agreed that (a) each of the
Stockholders will waive, in any action for specific performance, the defense of adequacy of a
remedy at law, and (b) TIB shall be entitled, in addition to any other remedy to which it may be
entitled at law or in equity, to compel specific performance of this Agreement. 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 right, power or remedy
thereof by any party shall not preclude the simultaneous or later exercise of any other such right,
power or remedy by such party; provided, however, TIB shall have no right to consequential damages
for any alleged breach of this Agreement by the Stockholders. The failure of any party hereto to
exercise any right, power or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party hereto with its
obligations hereunder, and any custom or practice of the parties at variance with the terms hereof,
shall not constitute a waiver by such party of its right to exercise any such or other right, power
or remedy or to demand such compliance.
Section 4.11 Governing Law; Jurisdiction. (a) This Agreement shall be governed by and construed
in accordance with the laws of the State of Florida, without giving effect to the choice of law
principles thereof.
(b) Each of the parties hereto (i) consents to submit itself to the personal jurisdiction of
the courts of the State of Florida or the Federal courts of the United States of America located in
the State of Florida if any dispute arises under this Agreement or any transaction contemplated by
this Agreement, (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction
by motion or other request for leave from any such court, (iii) waives any right to trial by jury
with respect to any action, suit or proceeding related to or arising out of this Agreement or any
transaction contemplated by this Agreement, (iv) waives any objection to the laying of venue of any
action, suit or proceeding arising out of this Agreement or any transaction contemplated hereby in
any such court, (v) waives and agrees not to plead or claim that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient forum and (vi) agrees that
a final judgment in any such
action, suit or proceeding in any such court shall be conclusive and may be enforced in any
other jurisdiction by suit on the judgment or in any other manner provided by applicable Law.
(c) Notwithstanding any other provision in this Agreement, in the event of any Action (as
defined in the Merger Agreement) arising out of or resulting from this Agreement, the prevailing
party shall be entitled to recover its costs and expenses (including reasonable attorneys’ fees and
expenses) incurred in connection therewith.
Section 4.12 Headings. The descriptive headings herein are inserted for convenience of reference
only and are not intended to be part of or to affect the meaning or interpretation of this
Agreement.
Section 4.13 Counterparts. This Agreement may be executed in one or more counterparts (including
by facsimile), each of which shall be deemed to constitute an original, but all of which together
shall constitute one and the same instrument.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be duly executed as of
the day and year first above written.
TIB FINANCIAL CORP. |
||||
By: | /s/ Xxxxxx X. Xxxx | |||
Name: | Xxxxxx X. Xxxx | |||
Title: | President and Chief Executive Officer | |||
STOCKHOLDERS:
|
||||
Xxxxx
X. Xxxxxx |
Xxxxxxx X. Xxxxxxxx | |||
Xxxxxx
Xxxxxx |
W. Xxxx Xxxxxx | |||
X. X.
Xxxxxx |
Xxxxx X. Xxxxxxx | |||
Xxxxxx
XxXxxx |
Xxxxx X. Xxxxxx | |||
Xxxxxxx
X. Xxxxxxx |
Xxxxx X. Xxxxx | |||
Xxxxxx
X. Xxxxxx |
Xxxx X. Xxxxxx, Xx. | |||
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Annex
A
Shares of Common Stock | ||||||||
Beneficially Owned | ||||||||
(excluding shares issuable | Shares of Common Stock | |||||||
Stockholder | upon exercise of options) | Subject o Options | ||||||
Xxxxx X. Xxxxxx |
27,704 | 4,030 | ||||||
Xxxxxx Xxxxxx |
13,012 | 3,784 | ||||||
X. X. Xxxxxx |
45,557 | 5,057 | ||||||
Xxxxxx XxXxxx |
12,452 | 3,284 | ||||||
Xxxxxxx X. Xxxxxxx |
25,000 | 3,767 | ||||||
Xxxxxx X. Xxxxxx |
12,452 | 3,784 | ||||||
Xxxxxxx X. Xxxxxxxx |
31,200 | 4,030 | ||||||
W. Xxxx Xxxxxx |
12,452 | 3,784 | ||||||
Xxxxx X. Xxxxxxx |
14,352 | 3,284 | ||||||
Xxxxx X. Xxxxxx |
20,570 | 3,548 | ||||||
Xxxxx X. Xxxxx |
11,500 | 15,000 | ||||||
Xxxx X. Xxxxxx, Xx. |
15,500 | 10,000 | ||||||
241,751 | 63,352 |
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