Exhibit 2.3
STOCKHOLDER AGREEMENT
This STOCKHOLDER AGREEMENT, dated as of October 7, 1996, is
entered into by and among Webster Financial Corporation ("Webster"), a Delaware
corporation, and the thirteen stockholders of DS Bancor, Inc. ("DS Bancor"), a
Delaware corporation, named on Schedule I hereto (collectively the
"Stockholders"), who are directors or executive officers of DS Bancor.
WHEREAS, Webster, Webster Acquisition Corp., a wholly-owned
subsidiary of Webster ("Merger Sub") and DS Bancor have entered into an
Agreement and Plan of Merger, dated as of October ___, 1996 ("Agreement"), which
is conditioned upon the concurrent execution of this Stockholder Agreement and
which provides for, among other things, the merger of Merger Sub with and into
DS Bancor, in a stock-for-stock transaction pursuant to which DS Bancor will
become a wholly-owned subsidiary of Webster (the "Merger");
WHEREAS in order to induce Webster to enter into or proceed
with the Agreement, each of the Stockholders agrees to, among other things, vote
in favor of the Agreement, the Merger and the other transactions contemplated by
the Agreement in his/her capacity as a stockholder of DS Bancor;
NOW, THEREFORE in consideration of the premises, the mutual
covenants and agreements set forth herein and other good and valuable
consideration, the sufficiency of which is hereby acknowledged, the parties
hereto agree as follows:
1. Ownership of DS Bancor Common Stock. Each Stockholder represents and
warrants that he/she has or shares the right to vote and dispose of the number
of shares of common stock of DS Bancor, par value $1.00 per share ("DS Bancor
Stock"), set forth opposite such Stockholder's name on Schedule I hereto.
2. Agreements of the Stockholders. Each Stockholder covenants and
agrees that:
(a) Such Stockholder shall, at any meeting of DS Bancor
stockholders called for the purpose, vote or cause to be voted all
shares of DS Bancor Stock in which such Stockholder has the right to
vote (whether owned as of the date hereof or hereafter acquired) (i) in
favor of the Agreement, the Merger and the other transactions
contemplated by the Agreement and (ii) against any plan or proposal
pursuant to which DS Bancor is to be acquired by or merged with, or
pursuant to which DS Bancor proposes to sell all or substantially all
of its assets and liabilities to, any person, entity or group (other
than Webster or any affiliate thereof) unless the Board of Directors,
following receipt of written advice of DS Bancor's legal counsel,
reasonably determines, that voting against said plan or proposal would
constitute a breach of the exercise of its fiduciary duty because such
plan or proposal would be in the best interest of DS Bancor
stockholders.
(b) Except as otherwise expressly permitted hereby, such Stockholder
shall not, prior to the consummation of the Merger or the earlier termination of
this Stockholder Agreement in accordance with its terms, sell, pledge, transfer
or otherwise dispose of his/her shares of DS Bancor Stock; provided, however,
that, this Section 2(b) shall not apply (i) to a pledge existing as of the date
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of this Agreement, (ii) to a sale, pledge, transfer or other disposition of
shares of DS Bancor Stock acquired subsequent to the date hereof upon the
exercise of options under the DS Bancor Stock Option Plan by a Stockholder who
is an executive officer of DS Bancor, if, in the case of (i), or (ii) such sale,
pledge, transfer or other disposition occurs no later than the 31st day
preceding the consummation of the Merger. To enable Stockholders to comply with
the foregoing provision, Webster will notify the Stockholders at least 45 days
in advance of the date that Webster anticipates that the Merger will be
consummated.
(c) Such Stockholder shall not in his/her capacity as a stockholder of
DS Bancor directly or indirectly encourage or solicit or hold discussions or
negotiations with, or provide any information to, any person, entity or group
(other than Webster or an affiliate thereof) concerning any merger, sale of
substantial assets or liabilities not in the ordinary course of business, sale
of shares of capital stock or similar transaction involving DS Bancor. Nothing
herein shall impair such Stockholders' fiduciary obligations as a director of DS
Bancor.
(d) Such Stockholder shall use his/her best efforts to take or cause to
be taken all action, and to do or cause to be done all things necessary, proper
or advisable under applicable laws and regulations to consummate and make
effective the Merger contemplated by this Stockholder Agreement.
(e) Such Stockholder shall not, prior to the public release by Webster
of an earnings report to its stockholders covering at least one month of
operations after consummation of the Merger (the "Restricted Period"), sell,
pledge (other than the replacement of an existing pledge of DS Bancor Stock),
transfer or otherwise dispose of the shares of Webster Stock to be received by
him/her for his/her shares of DS Bancor Stock upon consummation of the Merger;
it being agreed that Webster shall cause such earnings report to be publicly
released within 30 days after the end of the first month of operations after
consummation of the Merger.
(f) Such Stockholder shall comply with all applicable federal and state
securities laws in connection with any sale of Webster Stock received in
exchange for DS Bancor Stock in the Merger, including the trading and volume
limitations as to sales by affiliates contained in Rule 145 under the Securities
Act of 1933, as amended.
(g) Such Stockholder shall not sell or otherwise dispose of a number of
shares of his DS Bancor Common Stock or, during the Restricted Period shares of
Webster Common Stock which are exchanged for said shares (i) which is greater
than 10% of his total beneficial ownership of said shares as of the date of the
first such sale (ii) which in the aggregate with shares sold or otherwise
disposed of by all other Stockholders will be greater than 1% of the issued and
outstanding shares of DS Bancor as of the date of the first such sale. For
purposes of this computation, outstanding stock options that currently are
exercisable would be considered as outstanding or beneficially owned after such
options are converted to common stock equivalents using the treasury stock
method in accordance with generally accepted accounting principles.
3. Successors and Assigns. A Stockholder may sell, pledge, transfer or
otherwise dispose of his/her shares of DS Bancor Stock, provided that such
Stockholder obtains prior written consent of Webster and that any acquiror of
such DS Bancor Stock agree in writing to be bound by this Stockholder Agreement.
4. Termination. The parties agree and intend that this Stockholder
Agreement be a valid and binding agreement enforceable against the parties
hereto and that damages and other remedies at law for the breach of this
Stockholder Agreement are inadequate. This Stockholder Agreement may be
terminated at any time prior to the consummation of the Merger by mutual written
consent of the parties hereto and shall be automatically terminated in the event
that the Agreement is terminated in accordance with its terms; provided,
however, that if the DS Bancor
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stockholders fail to approve the Agreement or DS Bancor fails to hold a
stockholders meeting to vote on the Agreement, then (i) Section 2(a) clause (ii)
hereof shall continue in effect as to any plan or proposal received by DS Bancor
from any person, entity or group (other than Webster or any affiliate thereof)
prior to the termination of the Agreement or within 135 days after such
termination and (ii) Section 2(b) hereof shall continue in effect to preclude a
sale other than pursuant to normal brokers transactions on the Nasdaq Stock
Market, pledge other than to a bona fide financial institution or recognized
securities dealer, transfer, or other disposition directly or indirectly to any
such person, entity or group in connection with any such plan or proposal,
except upon consummation of such plan or proposal.
5. Notices. Notices may be provided to Webster and the Stockholders in
the manner specified in the Agreement, with all notices to the Stockholders
being provided to them at DS Bancor in the manner specified in such section.
6. Governing Law. This Stockholder Agreement shall be governed by the
laws of the State of Delaware, without giving effect to the principles of
conflicts of laws thereof.
7. Counterparts. This Stockholder Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same and each of
which shall be deemed an original.
8. Headings. The Section headings contained herein are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Stockholder Agreement.
9. Regulatory Approval. If any provision of this Agreement requires the
approval of any regulatory authority in order to be enforceable, then such
provision shall not be affective until such approval is obtained; provided,
however, that the foregoing shall not affect the enforceability of any other
provision of this Agreement.
10. Pooling of Interest. In the event that Webster elects to have the
Merger accounted for as a purchase rather than a pooling of interest, this
Agreement shall be modified to the extent that restrictions contained herein are
based only on requirements for a pooling of interest.
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IN WITNESS WHEREOF, Webster, by a duly authorized officer, and each of
the Stockholders have caused this Stockholder Agreement to be executed and
delivered as of the day and year first above written.
WEBSTER FINANCIAL CORPORATION DS BANCOR, INC.
By: /s/ James C. Smith /s/ Michael F. Daddona, Jr.
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James C. Smith Michael F. Daddona, Jr.
Chairman, President and
Chief Executive Officer /s/ John F. Costigan
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John F. Costigan
/s/ Achille A. Apicella
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Achille A. Apicella, CPA
/s/ Walter R. Archer
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Walter R. Archer, Jr.
/s/ Harry P. DiAdamo, Jr.
---------------------------------
Harry P. DiAdamo, Jr.
/s/ Angelo E. Dirienzo
---------------------------------
Angelo E. Dirienzo
/s/ Laura J. Donahue
---------------------------------
Laura J. Donahue, Esq.
/s/ Christopher H. B. Mills
---------------------------------
Christopher H.B. Mills
/s/ John M. Rak
---------------------------------
John M. Rak
/s/ John P. Sponheimer
---------------------------------
John P. Sponheimer, Esq.
/s/ Gary M. Tompkins
---------------------------------
Gary M. Tompkins
/s/ Alfred T. Santoro ex pg # 2(A)
---------------------------------
Alfred T. Santoro
/s/ Thomas H. Wells ex pg # 2(A)
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Thomas H. Wells
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