Exhibit 10.1
SHAREHOLDERS’
AGREEMENT
This Shareholders’ Agreement
(the “ Agreement ”) is entered into as of
December 13, 2005 by and among Erik D. Bolog, Michael A.
Postal, Joseph R. Schuble, Jr. and Steven M. Schuble
(collectively, the “Group ”) and American Bank
Holdings, Inc. (the “ Company ”), a
Delaware corporation and the holding company for American
Bank.
WHEREAS, the Group, together with Howard J. Postal, has
filed a Notice of Change In Control (the “ Notice
”) with the Office of Thrift Supervision (“ OTS
”) in connection with their proposed acquisition of a
substantial percentage of the outstanding shares of the common
stock of the Company;
WHEREAS, the Notice was filed with the OTS pursuant to
the Change in Bank Control Act, 12 U.S.C. 1817(j) and the
rules and regulations of the OTS promulgated thereunder
(“ Applicable Law and Regulations ”);
WHEREAS , the Board of Directors of the Company has
determined that it is in the best interests of the Company and all
of its stockholders that the majority of the directors of the
Company not be members of the Group or persons who subsequently
become or are presumed to become members of the group or are acting
in concert with members of the Group or are presumed to be acting
in concert with members of the Group pursuant to Applicable Law and
Regulations (the “ Expanded Group ”);
and
WHEREAS, the members of the Group desire to assure the
Board of Directors and the stockholders of the Company, in
connection with their proposed acquisition of a substantial
percentage of the outstanding common stock of the Company, that
they have no intention to control the Company or its Board of
Directors by electing a majority of directors who are members of
the Group or the Expanded Group;
NOW, THEREFORE,
in consideration of these premises
and the mutual agreements below, the parties hereto agree as
follows:
1.
Representations and Warranties of
the Group . The
Group hereby represents and warrants to the Company, jointly and
severally, as follows:
(i) The Group members have set forth in
Exhibit A the number of shares of capital stock of the Company
the Group members intend to purchase pursuant to the community
offering of the Company’s capital stock pursuant to the
registration statement on Form SB-2 declared effective by the
SEC on April 29, 2005 (collectively, the “Community
Offering Stock”).
(ii) The Group members have full and complete
authority to enter into this Agreement and to bind the entire
number of shares of Community Offering Stock. This Agreement
constitutes a valid and binding agreement of each member of the
Group.
(iii) There are no arrangements, agreements or
understandings between the members of the Group and the Company
other than as set forth in this Agreement.
2.
Representations and Warranties of
the Company . The
Company hereby represents and warrants to each member of the Group
, as follows:
(i) The Company has full power and authority to
enter into and perform its obligations under this Agreement, and
the execution and delivery of this Agreement by the Company
regarding the consummation of the transactions contemplated hereby
has been duly authorized by the Board of Directors of the Company
and requires no other Board of Directors or stockholder action.
This Agreement constitutes a valid and binding obligation of the
Company and the performance of its terms shall not constitute a
violation of its certificate of incorporation or bylaws.
(ii) There are no arrangements, agreements or
understandings between the members of the Group and the Company
other than as set forth in this Agreement.
3.
Covenants of the Group
. Each Group member covenants
and agrees that during the term of this Agreement:
(i) Except for open market transactions through a
broker, they shall not hereafter transfer or sell, or offer or
agree to transfer or sell, directly or indirectly, where they have
knowledge that the buyer will beneficially own more than 9.99% of
the Company’s shares, beneficial ownership of, or the right
to vote any shares of Community Offering Stock except with the
express approval of the Board of Directors of the Company, which
approval shall not be unreasonably withheld. It is the intent of
the parties hereto that the Group member’s shares of
Community Offering Stock may not be transferred or sold if the
Company’s Board of Directors reasonably believes it likely
that any person or group or affiliates of such person or group
acquiring such shares would, after such acquisition, beneficially
own more than 9.99% of the Company’s shares. Notwithstanding
the above, this subparagraph (i) shall not apply if the
transferee(s) expressly agree, in writing, to be bound by the
terms of this Agreement.
(ii) (a) In the event that a proposal is
properly introduced for consideration at a meeting of the
Company’s stockholders and such proposal is not approved by
the Company’s Board of Directors, then each member of the
Group shall have the right, at their discretion, to vote an amount
of shares of Community Offering Stock in favor of such proposal, as
applicable, equal to the total shares of Community Offering Stock
held by such member multiplied by the following
fraction:
The number of shares, other than Community
Offering Stock, voted in favor of the proposal
The total number of shares, excluding the
Community Offering Stock, voted with respect to such
proposal
(b) In the event that a
proposal is brought before the stockholders for a vote and is
approved by the Board of Directors but not approved by a member of
the Group seeking to vote his shares of Community Offering Stock,
then each member of the Group shall have the right, at their
discretion, to vote an amount of shares of Community
Offering
