UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
January 20, 2016
ASB Bancorp, Inc.
(Exact Name of Registrant As Specified in Its
Charter)
North Carolina
(State or Other Jurisdiction of Incorporation)
001-35279 |
45-2463413 |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
11 Church Street, Asheville, North Carolina
28801
(Address of Principal Executive Offices) (Zip
Code)
(828) 254-7411
(Registrant's Telephone Number, Including Area
Code)
Not Applicable
(Former Name or Former Address, if Changed Since
Last Report.)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction
A.2. below):
| ¨ | Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17CFR 240.14d-2(b)) |
| ¨ | Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| Item 1.01 | Entry Into a Material Definitive Agreement |
On January 20, 2016, ASB Bancorp, Inc. (the
“Company”) and the Company’s wholly owned subsidiary, Asheville Savings Bank (the “Bank”), entered
into an Agreement (the “Agreement”) with Seidman and Associates, L.L.C. (“SAL”), Seidman Investment Partnership,
L.P. (“SIP”), Seidman Investment Partnership II, L.P. (“SIPII”), Seidman Investment Partnership III, L.P.
(“SIPIII”), LSBK06-08, L.L.C. (“LSBK”), Broad Park Investors, L.L.C. (“Broad Park”), Chewy
Gooey Cookies, L.P. (“Chewy”), 2514 Multi-Strategy Fund, L.P. (“2514 MSF”), CBPS, LLC (“CBPS”),
Veteri Place Corporation (“Veteri”), JBRC I, LLC (“JBRC”), and Lawrence B. Seidman, an individual (“Seidman”
and collectively with SAL, SIP, SIPII, SIPIII, LSBK, Broad Park, Chewy, 2514 MSF, CBPS, Veteri, and JBRC, the “Seidman Group”),
and Kenneth J. Wrench (“Wrench”), an individual who was recommended by the Seidman Group for appointment to the Boards
of Directors of the Company and the Bank. The Seidman Group owns approximately 6.7% of the outstanding shares of the Company’s
common stock.
The Agreement provides that Seidman will be
appointed by the Company to the class of directors whose term expires at the Annual Meeting of Shareholders to be held in May 2016
(the “2016 Annual Meeting”) and will be renominated at the 2016 Annual Meeting to a term to expire at the Annual Meeting
of Shareholders to be held in May 2019. Seidman will also be appointed to the Board of Directors of the Bank for a similar term.
The Agreement further provides that Wrench will
be appointed by the Company to the class of directors whose term expires at the Annual Meeting of Shareholders to be held in May
2018 (the “2018 Annual Meeting”) and will be renominated at the 2016 Annual Meeting to a term to expire at the 2018
Annual Meeting. Wrench will also be appointed to the Board of Directors of the Bank for a similar term.
During the term of the Agreement, which, with
respect to the Seidman Group, is scheduled to continue for so long as Seidman (or his replacement director as provided under the
Agreement) remains on the Board of Directors of the Company or the Bank and, with respect to Wrench, is scheduled to continue for
so long as Wrench (or his replacement director as provided under the Agreement) remains on the Board of Directors of the Company
or the Bank, the Seidman Group and Wrench will not, among other things, solicit proxies in opposition to any recommendations or
proposals of the Company’s Board of Directors, initiate or solicit shareholder proposals or seek to place any additional
representatives on the Company’s Board of Directors (other than any replacement director as provided under the Agreement),
oppose any proposal or director nomination submitted by the Board of Directors to the Company’s shareholders, vote for any
nominee to the Company’s Board of Directors other than those nominated or supported by the Board of Directors, seek to exercise
any control or influence over the management of the Company or the Boards of Directors of the Company or the Bank (although nothing
in the Agreement will prevent either Seidman or Wrench from expressing their views to other members of the Board or management
or otherwise engaging in lawful acts in their capacities as directors), propose or seek to effect a merger or sale of the Company,
or initiate litigation against the Company.
In addition, during the term of the Agreement,
the Seidman Group and Wrench have agreed to vote in favor of the nominees for election or re-election as directors of the Company
selected by the Board of Directors.
The foregoing description is qualified in its
entirety by reference to the full text of the Agreement, which is attached hereto as Exhibit 10.1 and is incorporated herein by
reference.
| Item 9.01. | Financial Statements and Exhibits. |
The following exhibits
are filed herewith:
Exhibit |
|
|
No. |
|
Description of Exhibit |
|
|
|
10.1 |
|
Agreement,
dated January 20, 2016, by and among ASB Bancorp, Inc., Asheville Savings Bank, Seidman and Associates, L.L.C., Seidman Investment
Partnership, L.P., Seidman Investment Partnership II, L.P., Seidman Investment Partnership III, L.P., LSBK06-08, L.L.C., Broad
Park Investors, L.L.C., Chewy Gooey Cookies, L.P., 2514 Multi-Strategy Fund, L.P., CBPS, LLC, Veteri Place Corporation, JBRC I,
LLC, Lawrence B. Seidman, and Kenneth J. Wrench. |
SIGNATURES
Pursuant to the requirements
of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned
hereunto duly authorized.
|
ASB BANCORP, INC. |
|
|
|
By: |
/s/ Suzanne S. DeFerie |
|
Name: |
Suzanne S. DeFerie |
|
Title: |
President and Chief Executive Officer |
Dated: January 21, 2016
EXHIBIT INDEX
Exhibit |
|
|
No. |
|
Description of Exhibit |
|
|
|
10.1 |
|
Agreement, dated January 20, 2016, by and among ASB Bancorp, Inc., Asheville Savings Bank, Seidman and Associates, L.L.C., Seidman Investment Partnership, L.P., Seidman Investment Partnership II, L.P., Seidman Investment Partnership III, L.P., LSBK06-08, L.L.C., Broad Park Investors, L.L.C., Chewy Gooey Cookies, L.P., 2514 Multi-Strategy Fund, L.P., CBPS, LLC, Veteri Place Corporation, JBRC I, LLC, Lawrence B. Seidman, and Kenneth J. Wrench |
Exhibit 10.1
AGREEMENT
THIS AGREEMENT (the “Agreement”),
dated this 20th day of January, 2016, is by and among ASB Bancorp, Inc. (the “Company”) and Asheville
Savings Bank (the “Bank,” and collectively with the Company, “ASB”), Seidman and Associates,
L.L.C. (“SAL”), Seidman Investment Partnership, L.P. (“SIP”), Seidman Investment Partnership
II, L.P. (“SIPII”), Seidman Investment Partnership III, L.P. (“SIPIII”), LSBK06-08, L.L.C.
(“LSBK”), Broad Park Investors, L.L.C. (“Broad Park”), Chewy Gooey Cookies, L.P. (“Chewy”),
2514 Multi-Strategy Fund, L.P. (“2514 MSF”), CBPS, LLC (“CBPS”), Veteri Place Corporation
(“Veteri”), JBRC I, LLC (“JBRC”), and Lawrence B. Seidman, an individual (“Seidman”
and collectively with SAL, SIP, SIPII, SIPIII, LSBK, Broad Park, Chewy, 2514 MSF, CBPS, Veteri, and JBRC, the “Seidman
Group” (each a “Seidman Group Member”)), and Kenneth J. Wrench, an individual (“Wrench”).
RECITALS
WHEREAS, ASB, the Seidman Group,
and Wrench have agreed that it is in their mutual interests to enter into this Agreement.
NOW THEREFORE, in consideration of
the Recitals and the representations, warranties, covenants, and agreements contained herein and other good and valuable consideration,
and intending to be legally bound hereby, the parties hereto agree as follows:
1. Representations
and Warranties of the Seidman Group Members. The Seidman Group Members represent and warrant to ASB as follows:
(a) The
Seidman Group has fully disclosed in Exhibit A to this Agreement the total number of shares of common stock of the Company,
par value $0.01 per share (“Company Common Stock”), to which it or Wrench is the beneficial owner, and neither
the Seidman Group nor any Seidman Group Member nor any of their affiliates has (i) a right to acquire any interest in any capital
stock of the Company, or (ii) a right to vote any shares of capital stock of the Company other than as set forth in Exhibit
A;
(b) The
Seidman Group and the Seidman Group Members have full power and authority to enter into and perform their obligations under this
Agreement, and the execution and delivery of this Agreement by the Seidman Group and Seidman Group Members has been duly authorized
by the Seidman Group and the Seidman Group Members. This Agreement constitutes a valid and binding obligation of the Seidman Group
and each Seidman Group Member, and the performance of its terms will not constitute a violation of any limited partnership agreement,
articles of incorporation, bylaws, operating agreement, or any agreement or instrument to which the Seidman Group or any Seidman
Group Member is a party; and
(c) There
are no arrangements, agreements, or understandings concerning the subject matter of this Agreement between the Seidman Group or
any Seidman Group Member and ASB or between the Seidman Group or any Seidman Group Member and Wrench other than as set forth in
this Agreement.
2. Representations
and Warranties of the Company and the Bank.
(a) The
Company and the Bank hereby represent and warrant to the Seidman Group that the Company and the Bank have full power and authority
to enter into and perform their respective obligations under this Agreement and that the execution and delivery of this Agreement
by the Company and the Bank has been duly authorized by the Board of Directors of the Company and the Bank. This Agreement constitutes
a valid and binding obligation of the Company and the Bank, and the performance of its terms will not constitute a violation of
their respective articles of incorporation, charter, or bylaws or any agreement or instrument to which the Company or the Bank
is a party; and
(b) The
Company and the Bank hereby represent and warrant to the Seidman Group that there are no arrangements, agreements, or understandings
concerning the subject matter of this Agreement between the Seidman Group or any Seidman Group Member and ASB other than as set
forth in this Agreement.
3. Covenants.
(a) During
the term of this Agreement, ASB covenants and agrees as follows:
(i) Upon
receipt of all necessary regulatory approvals for the appointment of Seidman, the Company will take all necessary and appropriate
corporate action to appoint Seidman to the class of directors thereof whose term expires at the Annual Meeting of Shareholders
expected to be held in May 2016 (the “2016 Annual Meeting”) and to renominate him at the 2016 Annual Meeting
for a three-year term to expire at the Annual Meeting of Shareholders currently expected to be held in May 2019. Upon receipt of
all necessary regulatory approvals for the appointment of Seidman, the Company and the Bank shall take all necessary and appropriate
action to appoint Seidman to the same terms of office on the Board of Directors of the Bank. The parties hereto understand and
agree that any new director of the Company and the Bank, including Seidman, must receive all necessary regulatory approvals and
non-objections, including those of the North Carolina Commissioner of Banks (“NCCOB”), before commencing service
as a director of the Company or the Bank. The parties hereto agree to act in good faith and cooperate with each other in promptly
submitting all necessary notices to the NCCOB contemplated hereby. The parties hereto acknowledge and agree that they anticipate
that Seidman will be added to the Boards of Directors of the Company and the Bank starting with the March 2016 meetings of the
Boards of Directors of the Company and the Bank;
(ii) Upon
receipt of all necessary regulatory approvals for the appointment of Wrench, the Company will take all necessary and appropriate
corporate action to appoint Wrench to the class of directors thereof whose term expires at the Annual Meeting of Shareholders expected
to be held in May 2018 (the “2018 Annual Meeting”) and to renominate him at the 2016 Annual Meeting for a two-year
term set to expire at the 2018 Annual Meeting. Upon receipt of all necessary regulatory approvals for the appointment of Wrench,
the Company and the Bank shall take all necessary and appropriate action to appoint Wrench to the same terms of office on the Board
of Directors of the Bank. The parties hereto understand and agree that any new director of the Company and the Bank, including
Wrench, must receive all necessary regulatory approvals and non-objections, including those of the NCCOB, before commencing service
as a director of the Company or the Bank. The parties hereto agree to act in good faith and cooperate with each other in promptly
submitting all necessary notices to the NCCOB contemplated hereby. The parties hereto acknowledge and agree that they anticipate
that Wrench will be added to the Boards of Directors of the Company and the Bank starting with the March 2016 meetings of the Boards
of Directors of the Company and the Bank;
(iii) Upon
their appointment and qualification to the Company’s and the Bank’s Boards of Directors, Seidman and Wrench shall be
treated on a consistent basis with other members of the Company’s and the Bank’s Board of Directors with respect to
compensation and benefits; and
(iv) Should
Seidman’s position (or the position of any replacement appointed pursuant to this Section 3(a)(iv)) as a director of the
Company or the Bank be terminated during the term of this Agreement due to his resignation, death, permanent disability, or otherwise,
or should Seidman (or any such replacement) fail to receive the necessary regulatory approvals for his appointment, the Company
and the Bank shall each appoint a replacement director, selected by Seidman (each, a “Seidman Replacement Director”),
subject to the approval of the Company, which approval shall not be unreasonably withheld, and such Seidman Replacement Director
shall, subject to his or her agreement to honor the provisions of Sections 3(d) and 3(e) hereof and any required regulatory approval,
be appointed promptly (within 60 days) to the Boards of the Company and the Bank.
(v) Should
Wrench’s position (or the position of any replacement appointed pursuant to this Section 3(a)(v)) as a director of the Company
or the Bank be terminated during the term of this Agreement due to his resignation, death, permanent disability, or otherwise,
or should Wrench (or any such replacement) fail to receive the necessary regulatory approvals for his appointment, the Company
and the Bank shall each appoint a replacement director, selected by Seidman (each, a “Wrench Replacement Director”),
subject to the approval of the Company, which approval shall not be unreasonably withheld, and such Wrench Replacement Director
shall, subject to his or her agreement to honor the provisions of Sections 3(d) and 3(e) hereof and any required regulatory approval,
be appointed promptly (within 60 days) to the Boards of the Company and the Bank.
(b) During
the term of this Agreement, the Seidman Group and each Seidman Group Member covenant and agree not to do the following, directly
or indirectly, alone or in concert with any affiliate, other group, or other person; provided, however, that nothing herein shall
prevent or limit Seidman from (x) expressing his views or positions on matters related to the Company’s or the Bank’s
business, operations, or policies to other members of the Company’s or the Bank’s Board of Directors or management,
or (y) otherwise engaging in lawful acts in his capacity as a director of the Company or the Bank in such manner as may be necessary
or appropriate in order to fulfill his duties as a director:
(i) acquire,
offer, or propose to acquire or agree to acquire, whether by purchase, tender or exchange offer, or through the acquisition of
control of another person or entity (including by way of merger or consolidation) any additional shares of the outstanding Company
Common Stock, any rights to vote or direct the voting of any additional shares of Company Common Stock, or any securities convertible
into Company Common Stock (except by way of stock splits, stock dividends, stock reclassifications, or other distributions or offerings
made available and, if applicable, exercised on a pro rata basis, to holders of the Company Common Stock generally); provided,
however, notwithstanding anything to the contrary set forth herein, the Seidman Group may acquire additional shares of the outstanding
Company Common Stock provided that the Seidman Group’s Beneficial Ownership will not exceed 9.9% of the outstanding shares
of Company Common Stock;
(ii) without
the Company’s prior written consent, directly or indirectly, sell, transfer, or otherwise dispose of any interest in the
Seidman Group’s shares of Company Common Stock to any person the Seidman Group believes, after reasonable inquiry, would
be the beneficial owner after any such sale or transfer of more than 5% of the outstanding shares of the Company Common Stock;
(iii) (A)
propose or seek to effect a merger, consolidation, recapitalization, reorganization, sale, lease, exchange, or other disposition
of substantially all the assets of, or other business combination involving, or a tender or exchange offer for securities of, the
Company or the Bank or any material portion of the Company’s or the Bank’s business or assets or any type of transaction
that would result in a change in control of the Company (any such transaction described in this clause (A) is a “Company
Transaction” and any proposal or other action seeking to effect a Company Transaction as described in this clause (A)
is defined as a “Company Transaction Proposal”), (B) seek to exercise any control or influence over the management
of the Company or the Boards of Directors of the Company or the Bank or any of the businesses, operations, or policies of the Company
or the Bank, (C) present to the Company, its shareholders, or any third party any proposal constituting or that could reasonably
be expected to result in a Company Transaction, or (D) seek to effect a change in control of the Company;
(iv) publicly
suggest or announce its willingness or desire to engage in a transaction or group of transactions or have another person engage
in a transaction or group of transactions that would constitute or could reasonably be expected to result in a Company Transaction
or take any action that might require the Company to make a public announcement regarding any such Company Transaction;
(v) initiate,
request, induce, encourage, or attempt to induce or give encouragement to any other person to initiate any proposal constituting
or that can reasonably be expected to result in a Company Transaction Proposal, or otherwise provide assistance to any person who
has made or is contemplating making, or enter into discussions or negotiations with respect to, any proposal constituting or that
can reasonably be expected to result in a Company Transaction Proposal;
(vi) solicit
proxies or written consents or assist or participate in any other way, directly or indirectly, in any solicitation of proxies or
written consents, or otherwise become a “participant” in a “solicitation,” or assist any “participant”
in a “solicitation” (as such terms are defined in Rule 14a-1 of Regulation 14A and Instruction 3 of Item 4 of Schedule
14A, respectively, under the Securities Exchange Act of 1934 (the “Exchange Act”)) in opposition to any recommendation
or proposal of the Company’s Board of Directors, or recommend or request or induce or attempt to induce any other person
to take any such actions, or seek to advise, encourage, or influence any other person with respect to the voting of (or the execution
of a written consent in respect of) the Company Common Stock, or execute any written consent in lieu of a meeting of the holders
of the Company Common Stock or grant a proxy with respect to the voting of the capital stock of the Company to any person or entity
other than the Board of Directors of the Company;
(vii) (A)
initiate, propose, submit, encourage, or otherwise solicit shareholders of the Company for the approval of one or more shareholder
proposals or induce or attempt to induce any other person to initiate any shareholder proposal, (B) seek election to, or seek to
place a representative or other affiliate or nominee on, the Company’s Board of Directors (other than with respect to the
provisions of Sections 3(a)(i), (ii), (iv), and (v), providing for the possible election of Seidman, Wrench, a Seidman Replacement
Director, or a Wrench Replacement Director), or (C) seek removal of any member of the Company’s or the Bank’s Boards
of Directors or any executive officer of the Company or the Bank;
(viii) form,
join in, or in any other way (including by deposit of the Company’s capital stock), participate in a partnership, pooling
agreement, syndicate, voting trust, or other group with respect to Company Common Stock, or enter into any agreement or arrangement
or otherwise act in concert with any other person, for the purpose of acquiring, holding, voting, or disposing of Company Common
Stock;
(ix) (A)
join with or assist any person or entity, directly or indirectly, in opposing, or make any statement in opposition to, any proposal
or director nomination submitted by the Company’s Board of Directors to a vote of the Company’s shareholders, or (B)
join with or assist any person or entity, directly or indirectly, in supporting or endorsing (including supporting, requesting,
or joining in any request for a meeting of shareholders in connection with), or make any statement in favor of, any proposal submitted
to a vote of the Company’s shareholders that is opposed by the Company’s Board of Directors;
(x) vote
for any proposal, nominee, or nominees for election to the Board of Directors of the Company other than those nominated or supported
by the Company’s Board of Directors;
(xi) except
in connection with the enforcement of this Agreement, initiate or participate, by encouragement or otherwise, in any litigation
against the Company or the Bank or their respective officers and directors, or in any derivative litigation on behalf of the Company
or the Bank, except for testimony which may be required by law;
(xii) request,
or induce or encourage any other person to request, that the Company amend or waive any of the provisions of this Agreement; and
(xiii) advise,
assist, encourage, or finance (or arrange, assist, or facilitate financing to or for) any other person in connection with any of
the matters restricted by, or otherwise seek to circumvent the limitations of, this Agreement.
(c) In
the event that Seidman breaches Section 3(b), he shall promptly resign his positions as a director of the Company and the Bank
or withdraw his name from nomination; in the event that Seidman fails to resign or withdraw his name after a breach in accordance
with the provisions of this Section 3(c), the Seidman Group agrees that the remaining directors of the Company and the Bank, by
majority vote thereof, may remove Seidman from his directorship positions with the Company and the Bank or remove his name from
nomination, as the case may be. Any resignation by Seidman pursuant to this Section 3(c) shall not trigger the right to appoint
a Seidman Replacement Director as provided in Section 3(a)(iv).
(d) (i) Wrench
agrees that during the term of this Agreement he will not take any action, directly or indirectly, which, if Wrench were deemed
to be a Seidman Group Member, would be in violation of or inconsistent with any of the covenants and agreements made by the Seidman
Group in Section 3(b) hereof; provided, however, that nothing herein shall prevent Wrench from acquiring additional shares of Company
Common Stock in order to meet at least the minimum requirements for Company directors under the Company’s policies; and provided,
further, that nothing herein shall prevent or limit Wrench from (x) expressing his views or positions on matters related to the
Company’s or the Bank’s business, operations, or policies to other members of the Company’s or the Bank’s
Board of Directors or management, or (y) otherwise engaging in lawful acts in his capacity as a director of the Company or the
Bank in such manner as may be necessary or appropriate in order to fulfill his duties as a director; and
(ii) In
the event that Wrench breaches clause (i) of this Section 3(d), he shall promptly resign his positions as a director of the Company
and the Bank or withdraw his name from nomination; in the event that Wrench fails to resign or withdraw his name after a breach
in accordance with the provisions of this clause (ii), Wrench and the Seidman Group agree that the remaining directors of the Company
and the Bank, by majority vote thereof, may remove Wrench from his directorship positions with the Company and the Bank or remove
his name from nomination, as the case may be. Any resignation by Wrench pursuant to this Section 3(d) shall not trigger the right
to appoint a Wrench Replacement Director as provided in Section 3(a)(v).
(e) During
the term of this Agreement, each Seidman Group Member and Wrench agree not to disparage the Company, the Bank, or any of their
directors (including nominees supported by the Company’s Board of Directors), officers, or employees in any public or quasi-public
forum, and the Company and the Bank agree not to disparage any Seidman Group Member or Wrench in any public or quasi-public forum.
(f) During
the term of this Agreement, at any Annual Meeting of Shareholders of the Company, the Seidman Group, each Seidman Group Member,
and Wrench, if applicable, covenant and agree, and shall require each of their affiliates, to vote all the shares of Company Common
Stock beneficially owned by them in favor of the nominees for election or re-election as directors of the Company selected by the
Board of Directors of the Company and otherwise support such director candidates.
4. Notice
of Breach and Remedies. The parties expressly agree that an actual or threatened breach of this Agreement by any party will
give rise to irreparable injury that cannot adequately be compensated by damages.
Accordingly, in addition to any other remedy
to which it may be entitled, each party shall be entitled to seek a temporary restraining order or injunctive relief to prevent
a breach of the provisions of this Agreement or to secure specific enforcement of its terms and provisions.
The Seidman Group and each Seidman Group
Member expressly agree that they will not be excused or claim to be excused from performance under this Agreement as a result of
any material breach by ASB unless and until ASB is given written notice of such breach and allowed 30 business days either to cure
such breach or seek relief in court. If ASB seeks relief in court, the Seidman Group and each Seidman Group Member irrevocably
stipulate that any failure to perform by the Seidman Group and/or any Seidman Group Member or any assertion by the Seidman Group
and/or any Seidman Group Member that they are excused from performing their obligations under this Agreement because it would cause
ASB irreparable harm, then ASB shall not be required to provide further proof of irreparable harm in order to obtain equitable
relief and that the Seidman Group and each Seidman Group Member shall not deny or contest that such circumstances would cause ASB
irreparable harm. If, after such 30 business day period, ASB has not either reasonably cured such material breach or obtained relief
in court, the Seidman Group or each Seidman Group Member may terminate this Agreement by delivery of written notice to ASB.
ASB expressly agrees that it will not be
excused or claim to be excused from performance under this Agreement as a result of any material breach by the Seidman Group or
any Seidman Group Member unless and until the Seidman Group and each Seidman Group Member is given written notice of such breach
and allowed 30 business days either to cure such breach or seek relief in court. If the Seidman Group or any Seidman Group Member
seeks relief in court, ASB irrevocably stipulates that any failure to perform by ASB or any assertion by ASB that it is excused
from performing its obligations under this Agreement because it would cause the Seidman Group and each Seidman Group Member irreparable
harm, then the Seidman Group or any Seidman Group Member shall not be required to provide further proof of irreparable harm in
order to obtain equitable relief and that ASB shall not deny or contest that such circumstances would cause the Seidman Group and
each Seidman Group Member irreparable harm. If, after such 30 business day period, the Seidman Group or the Seidman Group Member
has not either reasonably cured such material breach or obtained relief in court, ASB may terminate this Agreement by delivery
of written notice to the Seidman Group and each Seidman Group Member.
5. Term.
This Agreement shall be effective upon the execution of the Agreement and, with respect to the Seidman Group, will remain in effect
for so long as Seidman (or a Seidman Replacement Director) remains a director of the Company or the Bank and, with respect to Wrench,
will remain in effect for so long as Wrench (or a Wrench Replacement Director) remains a director of the Company or the Bank.
6. Publicity.
Attached as Exhibit B is the mutually agreed upon disclosure the Company shall include in its Form 8-K reporting the entry
into this Agreement. In addition, during the term of this Agreement, ASB and the Seidman Group shall each provide to the other
party for such party’s prior review and approval any additional disclosure proposed to be made by ASB or the Seidman Group
concerning this Agreement, unless such additional disclosure is substantially identical to or consistent with the disclosures mutually
agreed to in Exhibit B. During the term of this Agreement, no party to this Agreement shall cause, discuss, cooperate, or
otherwise aid in the preparation of any press release or other publicity concerning any other party to this Agreement or its operations
without the prior approval of such other party.
7. Notices.
All notices, communications and deliveries required or permitted by this Agreement shall be made in writing signed by the party
making the same, shall specify the section of this Agreement pursuant to which it is given or being made and shall be deemed given
or made (a) on the date delivered if delivered by electronic mail, by facsimile, or in person (with receipt confirmed), (b) on
the third business day after it is mailed if mailed by registered or certified mail (return receipt requested) (with postage and
other fees prepaid) or (c) on the day after it is delivered, prepaid, to an overnight express delivery service that confirms to
the sender delivery on such day, as follows:
Seidman Group: |
Lawrence B. Seidman |
|
Seidman and Associates, L.L.C. |
|
100 Misty Lane, 1st Floor |
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Parsippany, New Jersey 07054 |
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Facsimile: (973) 781-0876 |
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Email: lseidman@seidman-associates.com |
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With a copy to: |
Michael R. Neidell, Esq. |
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Olshan Frome Wolosky LLP |
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Park Avenue Tower |
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65 East 55th Street |
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New York, New York 10022 |
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Facsimile: (212) 451-2222 |
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Email: mneidell@olshanlaw.com |
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Nominee: |
Kenneth J. Wrench |
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10602 B Bailey Road |
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Cornelius, North Carolina 28031 |
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Facsimile: (704) 892-7244 |
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E-mail: kenwrench@augustahomesnc.com |
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ASB: |
Suzanne S. DeFerie |
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President and Chief Executive Officer |
|
ASB Bancorp, Inc. |
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Asheville Savings Bank |
|
11 Church Street |
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Asheville, North Carolina 28801 |
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Facsimile: (828) 252-6710 |
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Email: sdeferie@ashevillesavingsbank.com |
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With a copy to: |
Neil E. Grayson, Esq. |
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Nelson Mullins Riley & Scarborough LLP |
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Poinsett Plaza, Suite 900 |
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104 South Main Street |
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Greenville, South Carolina 29601 |
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Facsimile: (864) 250-2359 |
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Email: neil.grayson@nelsonmullins.com |
8. Governing
Law and Choice of Forum. Unless applicable federal law or regulation is deemed controlling, North Carolina law shall govern
the construction and enforceability of this Agreement. Any and all actions concerning any dispute arising hereunder shall be filed
and maintained in the United States District Court for the Western District of North Carolina or, if there is no basis for federal
jurisdiction, in the Buncombe County Superior Court. The Seidman Group, the Seidman Group Members, and Wrench agree that the United
States District Court for the Western District of North Carolina and the Buncombe County Superior Court may exercise personal jurisdiction
over them in any such actions.
9. Severability.
If any term, provision, covenant, or restriction of this Agreement is held by any governmental authority or a court of competent
jurisdiction to be invalid, void, or unenforceable, the remainder of the terms, provisions, covenants, and restrictions of this
Agreement shall remain in full force and effect and shall in no way be affected, impaired, or invalidated.
10. Successors
and Assigns. This Agreement shall be binding upon and shall inure to the benefit of and be enforceable by the successors and
assigns, and transferees by operation of law, of the parties. Except as otherwise expressly provided, this Agreement shall not
inure to the benefit of, be enforceable by, or create any right or cause of action in any person, including any shareholder of
the Company, other than the parties to the Agreement. Nothing contained herein shall prohibit any Seidman Group Member from transferring
any portion or all of the shares of Company Common Stock owned thereby at any time to any affiliate of Seidman or any other Seidman
Group Member but only if the transferee agrees in writing for the benefit of ASB (with a copy thereof to be furnished to ASB prior
to such transfer) to be bound by the terms of this Agreement (any such transferee shall be included in the terms “Seidman
Group” and “Seidman Group Member”).
11. Survival
of Representations, Warranties and Covenants. All representations, warranties and covenants shall survive the execution and
delivery of this Agreement and shall continue for the term of this Agreement unless otherwise provided.
12. Amendments.
This Agreement may not be modified, amended, altered or supplemented except by a written agreement executed by all of the parties.
13. Definitions.
As used in this Agreement, the following terms shall have the meanings indicated, unless the context otherwise requires:
(a) The
term “acquire” means every type of acquisition, whether effected by purchase, exchange, operation of law, or otherwise.
(b) The
term “acting in concert” means (i) knowing participation in a joint activity or conscious parallel action towards a
common goal, whether or not pursuant to an express agreement, or (ii) a combination or pooling of voting or other interests in
the securities of an issuer for a common purpose pursuant to any contract, understanding, relationship, agreement, or other arrangement,
whether written or otherwise.
(c) The
term “affiliate” means, with respect to any person, a person or entity that directly, or indirectly through one or
more intermediaries, controls or is controlled by, or is under common control with such other person.
(d) The
term “beneficial owner” shall have the meaning ascribed to it, and be determined in accordance with, Rule 13d-3 of
the Securities and Exchange Commission’s Rules and Regulations promulgated under the Exchange Act.
(e) The
term “change in control” denotes circumstances under which: (i) any person or group becomes the beneficial owner of
shares of capital stock of the Company or the Bank representing 25% or more of the total number of votes that may be cast for the
election of the Boards of Directors of the Company or the Bank, (ii) the persons who were directors of the Company or the Bank
cease to be a majority of the Board of Directors, in connection with any tender or exchange offer (other than an offer by the Company
or the Bank), merger or other business combination, sale of assets or contested election, or combination of the foregoing, or (iii)
shareholders of the Company or the Bank approve a transaction pursuant to which substantially all of the assets of the Company
or the Bank will be sold.
(f) The
term “control” (including the terms “controlling,” “controlled by,” and “under common
control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management,
activities, or policies of a person or organization, whether through the ownership of capital stock, by contract, or otherwise.
(g) The
term “group” has the meaning as defined in Section 13(d)(3) of the Exchange Act.
(h) The
term “person” includes an individual, group acting in concert, corporation, partnership, association, joint stock company,
trust, unincorporated organization or similar company, syndicate, or any other group formed for the purpose of acquiring, holding,
or disposing of the equity securities of the Company.
(i) The
term “transfer” means, directly or indirectly, to sell, gift, assign, pledge, encumber, hypothecate or similarly dispose
of (by operation of law or otherwise), either voluntarily or involuntarily, or to enter into any contract, option or other arrangement
or understanding with respect to the sale, gift, assignment, pledge, encumbrance, hypothecation or similar disposition of (by operation
of law or otherwise), any Company Common Stock or any interest in any Company Common Stock; provided, however, that a merger or
consolidation in which the Company is a constituent corporation shall not be deemed to be the transfer of any common stock beneficially
owned by the Seidman Group or a Seidman Group Member.
(j) The
term “vote” means to vote in person or by proxy, or to give or authorize the giving of any consent as a shareholder
on any matter.
14. Counterparts;
Facsimile. This Agreement may be executed in any number of counterparts and by the parties in separate counterparts, and signature
pages may be delivered by facsimile or electronically, each of which when so executed shall be deemed to be an original and all
of which taken together shall constitute one and the same agreement.
15. Duty
to Execute. Each party agrees to execute any and all documents, and to do and perform any and all acts and things necessary
or proper to effectuate or further evidence the terms and provisions of this Agreement.
16. Termination.
This Agreement shall cease, terminate and have no further force and effect upon the expiration of the term as set forth in Section
5, unless earlier terminated pursuant to Section 4 or Section 5 hereof or by mutual written agreement of the parties.
[Remainder of this page intentionally
left blank.]
IN WITNESS WHEREOF, this Agreement
has been duly executed by the undersigned and is effective as of the day and year first above written.
SEIDMAN AND ASSOCIATES, L.L.C. |
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ASB BANCORP, INC. |
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By: |
/s/ Lawrence B. Seidman |
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By: |
/s/ Suzanne S. DeFerie |
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Lawrence B. Seidman |
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Suzanne S. DeFerie |
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Manager |
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President and Chief Executive Officer |
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SEIDMAN INVESTMENT PARTNERSHIP, L.P. |
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ASHEVILLE SAVINGS BANK |
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By: |
Veteri Place Corporation |
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By: |
/s/ Suzanne S. DeFerie |
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General Partner |
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Suzanne S. DeFerie |
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President and Chief Executive Officer |
By: |
/s/ Lawrence B. Seidman |
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Lawrence B. Seidman |
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President |
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SEIDMAN INVESTMENT PARTNERSHIP II, L.P. |
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By: |
Veteri Place Corporation |
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General Partner |
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By: |
/s/ Lawrence B. Seidman |
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Lawrence B. Seidman |
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President |
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SEIDMAN INVESTMENT PARTNERSHIP III, L.P. |
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By: |
JBRC I, LLC |
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Co-General Partner |
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By: |
/s/ Lawrence B. Seidman |
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Lawrence B. Seidman |
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Managing Member |
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LSBK06-08, L.L.C. |
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By: |
Veteri Place Corporation |
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Trading Advisor |
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By: |
/s/ Lawrence B. Seidman |
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Lawrence B. Seidman |
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President |
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BROAD PARK INVESTORS, L.L.C. |
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By: |
/s/ Lawrence B. Seidman |
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Lawrence B. Seidman |
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Investment Manager |
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CHEWY GOOEY COOKIES, L.P. |
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By: |
/s/ Lawrence B. Seidman |
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|
Lawrence B. Seidman |
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Investment Manager |
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2514 MULTI-STRATEGY FUND, L.P. |
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By: |
/s/ Lawrence B. Seidman |
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Lawrence B. Seidman |
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Investment Manager |
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CBPS, LLC |
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By: |
Veteri Place Corporation |
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Trading Advisor |
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By: |
/s/ Lawrence B. Seidman |
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Lawrence B. Seidman |
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President |
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VETERI PLACE CORPORATION |
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By: |
/s/ Lawrence B. Seidman |
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|
Lawrence B. Seidman |
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President |
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JBRC I, LLC |
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By: |
/s/ Lawrence B. Seidman |
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|
Lawrence B. Seidman |
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Managing Member |
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LAWRENCE B. SEIDMAN |
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/s/ Lawrence B. Seidman |
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Lawrence B. Seidman |
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KENNETH J. WRENCH |
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/s/ Kenneth J. Wrench |
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Kenneth J. Wrench |
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EXHIBIT A
The Seidman Group beneficially owns as of the date hereof 265,674
shares of Company Common Stock.
Kenneth J. Wrench beneficially owns as of the date hereof
300 shares of Company Common Stock.
EXHIBIT B
Asb Bancorp, Inc. (NASDAQ:ASBB)
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