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 Agreement,
TIB, TBV 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:
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.
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
2
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.
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,
di
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