Exhibit 10.1
XENITH VOTING
AGREEMENT
This VOTING AGREEMENT (this “
Agreement ”), dated as of May 12, 2009 by and
among First Bankshares, Inc., a Virginia bank holding company
incorporated pursuant to the Virginia Stock Corporation Act
(“ FBS ”), and T. Gaylon Layfield, III and
BCP Fund I Virginia Holdings, LLC (each of the foregoing persons, a
“ Shareholder ”).
WHEREAS, in order to induce FBS to
enter into an Agreement of Merger, dated as of the date hereof (the
“ Merger Agreement ”), between FBS and Xenith
Corporation, a Virginia corporation (“ Xenith
”), FBS has requested each Shareholder, and each Shareholder
has agreed, to enter into this Agreement with respect to all shares
of common stock, par value $1.00 per share, of Xenith that such
Shareholder beneficially owns (with respect to each Shareholder,
the “ Shares ”) (as used herein, the term
“ Shares” shall mean (i) all securities of
Xenith (including all shares of Xenith capital stock and all
options, warrants and other rights to acquire shares of Xenith
capital stock) owned by any of the Shareholders as of the date of
this Agreement and such other shares of Xenith capital stock over
which any of the Shareholders has voting power, all as indicated on
the signature page hereto, and (ii) all additional securities
of Xenith (including all additional shares of Xenith capital stock
and all additional options, warrants and other rights to acquire
shares of Xenith capital stock) of which any of the Shareholders
acquires beneficial ownership during the period commencing on the
execution and delivery of this Agreement until termination of this
Agreement in accordance with Section 5.02 hereof, but
excluding in either case any Shares Transferred (as defined below)
by a Shareholder to any Person (other than another Shareholder) in
accordance with the terms of this Agreement).
NOW, THEREFORE, the parties hereto
agree as follows:
ARTICLE 1
G RANT OF P
ROXY ; V OTING A GREEMENT
Section 1.01 . Voting
Agreement . Unless FBS is in material default with respect to
any covenant, representation, warranty or agreement with respect to
it contained in the Merger Agreement, (a) each Shareholder
hereby agrees to vote or exercise its right to consent with respect
to all Shares that such Shareholder is entitled to vote at the time
of any vote or action by written consent to approve and adopt the
Merger Agreement, the Merger, the Plan of Merger and all agreements
related to the Merger and any actions related thereto at any
meeting of the shareholders of Xenith, and at any adjournment
thereof, at which such Merger Agreement, Plan of Merger and other
related agreements (or any amended version thereof), or such other
actions, are submitted for the consideration and vote of the
shareholders of Xenith; and (b) each Shareholder hereby agrees
that, for so long
as this Agreement is in effect, it will not vote
any Shares in favor of, or consent to, and will vote such Shares
against and not consent to, the approval of any (i) merger,
share exchange, business combination, reorganization,
recapitalization, dissolution, liquidation or winding-up of Xenith
or any other extraordinary transaction involving Xenith, other than
to vote in favor of, or consent to, the Merger Agreement, the
Merger and the Plan of Merger, (ii) corporate action the
consummation of which may frustrate the purposes, or prevent or
delay the consummation of, the transactions contemplated by the
Merger Agreement or (iii) other matter relating to, or in
connection with, any of the foregoing matters.
Section 1.02 . Irrevocable
Proxy . Each Shareholder hereby revokes any and all previous
proxies granted with respect to such Shareholder’s Shares. By
entering into this Agreement, each Shareholder hereby grants a
proxy appointing FBS as such Shareholder’s attorney-in-fact
and proxy, with full power of substitution, for and in such
Shareholder’s name, to vote, express consent or dissent, or
otherwise to utilize such voting power in the manner contemplated
by Section 1.01 above as FBS or its proxy or substitute shall,
in FBS’s sole discretion, deem proper with respect to such
Shareholder’s Shares. The proxy granted by each Shareholder
pursuant to this Article 1 is irrevocable and is granted in
consideration of FBS entering into this Agreement and the Merger
Agreement and incurring certain related fees and expenses. The
proxy granted by each Shareholder shall be revoked upon termination
of this Agreement in accordance with its terms.
Section 1.03. No Ownership
Interest. Except as set forth in Section 1.02, nothing
contained in this Agreement shall be deemed to vest in FBS any
direct or indirect ownership or incidence of ownership of or with
respect to any Shares. Except as set forth in Section 1.02,
all rights, ownership and economic benefits of and related to the
Shares shall remain and belong to the Shareholders, and FBS shall
have no authority to manage, direct, superintend, restrict,
regulate, govern or administer any of the policies or operations of
Xenith or exercise any power or authority to direct the
Shareholders in the voting of any of the Shares, except as
otherwise expressly provided herein, or the performance of its
duties or responsibilities as a shareholder of Xenith.
Section 1.04. Other
Agreements . Prior to the termination of this Agreement in
accordance with Section 5.02 hereof, each of the Shareholders
shall not enter into any agreement or understanding with any person
to vote or give instructions in any manner inconsistent with this
Article 1.
ARTICLE 2
R EPRESENTATIONS AND W ARRANTIES OF THE S HAREHOLDERS
Each Shareholder severally
represents and warrants to Xenith that:
Section 2.01 . Authorization
. Such Shareholder has duly executed and delivered this Agreement
and the execution, delivery and performance by such Shareholder of
this Agreement and the consummation by such Shareholder of the
transactions contemplated hereby are within the powers and legal
capacity of such Shareholder and have been duly authorized by all
necessary action. Assuming due authorization, execution and
delivery by FBS, this Agreement is a valid and binding agreement of
such Shareholder. If such Shareholder is married and the Shares set
forth on the signature page hereto opposite such
Shareholder’s name constitute community property under
applicable laws, this Agreement has been duly authorized, executed
and delivered by, and constitutes the valid and binding agreement
of, such Shareholder’s spouse.
2
Section 2.02 .
Non-Contravention . The execution, delivery and performance by
such Shareholder of this Agreement and the consummation of the
transactions contemplated hereby do not and will not
(i) violate any applicable law, rule, regulation, judgment,
injunction, order or decree, (ii) require any consent or other
action by any Person under, constitute a default under, or give
rise to any right of termination, cancellation or acceleration or
to a loss of any benefit to which such Shareholder is entitled
under any provision of any agreement or other instrument binding on
such Shareholder or (iii) result in the imposition of any Lien
on any asset of such Shareholder.
Section 2.03 . Ownership of
Shares . Such Shareholder is the record and beneficial owner of
such Shareholder’s Shares, free and clear of any Lien and any
other limitation or restriction (including any restriction on the
right to vote or otherwise dispose of such Shares). None of such
Shareholder’s Shares is subject to any voting trust or other
agreement or arrangement with respect to the voting of such
Shares.
Section 2.04 . Total Shares.
Except for the Shares and the options to acquire Shares set forth
on the signature page hereto, such Shareholder does not
beneficially own any (i) shares of capital stock or voting
securities of Xenith, (ii) securities of Xenith convertible
into or exchangeable for shares of capital stock or voting
securities of Xenith or (iii) options or other rights to
acquire from Xenith any capital stock, voting securities or
securities convertible into or exchangeable for capital stock or
voting securities of Xenith.
Section 2.05 . Finder’s
Fees . Except as provided in Section 6.12 of the Merger
Agreement, no investment banker, broker, finder or other
intermed
