EXHIBIT 99.2
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VOTING AGREEMENT OF BANCORP SHAREHOLDERS
This Voting Agreement (this "Agreement") is entered into as of June 30,
2004 by and among Xxxxxxx Community Bank, a commercial bank organized under the
laws of the State of New Jersey ("Xxxxxxx"), and certain shareholders of
Monmouth Community Bancorp, a corporation organized under the laws of the State
of New Jersey ( "Bancorp"), named herein (each a "Shareholder" and collectively,
the "Shareholders").
Xxxxxxx and Bancorp have entered into an Agreement and Plan of Acquisition
dated June 30, 2004 (the "Combination Agreement") which provides (subject to the
conditions set forth therein) for the acquisition of Xxxxxxx by Bancorp (the
"Combination"), and the subsequent merger of Xxxxxxx into a national banking
association to be called "Central Jersey Bank, National Association."
Capitalized terms used and not defined below shall have the meanings ascribed to
such terms in the Combination Agreement. For purposes of consummating the
Combination, the Shareholders are entering into this Voting Agreement.
Accordingly, the parties to this Voting Agreement, intending to be legally
bound, agree as follows:
1. Definitions. The following terms shall have the meanings set forth below as
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used herein.
"Expiration Date" shall mean the earlier of (i) the date upon which the
Combination Agreement is validly terminated, or (ii) the date upon which the
Combination becomes effective.
A Shareholder shall be deemed to "Own" or to have acquired "Ownership" of
a security if such Shareholder (i) is the record owner of such security, or (ii)
is the "beneficial owner" (within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934, as amended) of such security.
"Person" shall mean any (i) individual, (ii) corporation, limited
liability company, partnership or other entity, or (iii) governmental authority.
"Subject Securities" shall mean (i) all securities of Bancorp (including
all shares of Bancorp Common Stock, Bancorp Stock Options, and all other
options, warrants and other rights to acquire shares of Bancorp Common Stock)
Owned by a Shareholder as of the date of this Agreement; and (ii) all additional
securities of Bancorp (including all additional shares of Bancorp Common Stock,
Bancorp Stock Options, and all additional options, warrants and other rights to
acquire shares of Bancorp Common Stock) of which a Shareholder acquires
Ownership during the period from the date of this Agreement through the
Expiration Date.
A Person shall be deemed to have effected a "Transfer" of a security if
such Person directly or indirectly (i) sells, pledges, encumbers, grants an
option with respect to, transfers or disposes of such security or any interest
in such security, or (ii) enters into an agreement or commitment contemplating
the possible sale of, pledge of, encumbrance of, grant of an option with respect
to, transfer of or disposition of such security or any interest therein.
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2. Transfer of Subject Securities.
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2.1. Transferee of Subject Securities to be Bound by this Agreement. Each
Shareholder agrees that, during the period from the date of this Voting
Agreement through the Expiration Date, such Shareholder shall not cause or
permit any Transfer of any of the Subject Securities to be effected unless each
Person to which any of such Subject Securities, or any interest in any of such
Subject Securities, is or may be Transferred shall have (a) executed a
counterpart of this Voting Agreement and a proxy in the form attached hereto as
Exhibit A (with such modifications as Xxxxxxx may reasonably request), and (b)
agreed to hold such Subject Securities (or interest in such Subject Securities)
subject to all of the terms and provisions of this Voting Agreement.
2.2. Transfer of Voting Rights. Each Shareholder agrees that, during the
period from the date of this Voting Agreement through the Expiration Date, such
Shareholder shall ensure that (a) none of the Subject Securities is deposited
into a voting trust, and (b) no proxy is granted, and no voting agreement or
similar agreement is entered into, with respect to any of the Subject
Securities.
3. Voting of Shares.
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3.1. Voting Agreement. Each Shareholder agrees that, during the period
from the date of this Voting Agreement through the Expiration Date:
(a) at any meeting of shareholders of Bancorp, however called, each
Shareholder shall (unless otherwise directed in writing by Xxxxxxx) cause all
outstanding shares of Bancorp Common Stock that are Owned by such Shareholder as
of the record date fixed for such meeting to be voted in favor of the approval
and adoption of the Combination Agreement and the approval of the Combination,
and in favor of each of the other actions contemplated by the Combination
Agreement, and
(b) in the event written consents are solicited or otherwise sought from
shareholders of Bancorp with respect to the approval or adoption of the
Combination Agreement, with respect to the approval of the Combination or with
respect to any of the other actions contemplated by the Combination Agreement,
such Shareholder shall (unless otherwise directed in writing by Xxxxxxx) cause
to be executed, with respect to all outstanding shares of Bancorp Common Stock
that are Owned by such Shareholder as of the record date fixed for the consent
to the proposed action, a written consent or written consents to such proposed
action.
3.2. Proxy; Further Assurances.
(a) Contemporaneously with the execution of this Voting Agreement (i) each
Shareholder shall deliver to Xxxxxxx a proxy in the form attached to this Voting
Agreement as Exhibit A, which shall be irrevocable to the fullest extent
permitted by law, with respect to the shares referred to therein (the "Proxy"),
and (ii) each Shareholder shall cause to be delivered to Xxxxxxx an additional
proxy (in the form attached hereto as Exhibit A) executed on behalf of the
record owner of any outstanding shares of Bancorp Common Stock that are Owned
beneficially (within the meaning of Rule 13d-3 under the Securities Exchange Act
of 1934, as amended), but not of record, by such Shareholder.
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(b) Each Shareholder shall, at his or her own expense, perform such
further acts and execute such further documents and instruments as may
reasonably be required to vest in Xxxxxxx the power to carry out and give effect
to the provisions of this Voting Agreement.
4. Waiver of Appraisal Rights.
---------------------------
Each Shareholder hereby irrevocably and unconditionally waives, and agrees
to cause to be waived and to prevent the exercise of, any rights of appraisal,
any dissenters' rights and any similar rights relating to the Combination or any
related transaction that such Shareholder or any other Person may have by virtue
of the ownership of any outstanding shares of Bancorp Common Stock Owned by such
Shareholder.
5. Representations and Warranties of Each Shareholder.
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Each Shareholder, severally and not jointly, hereby represents and
warrants to Xxxxxxx as follows:
5.1. Authorization, Etc. Shareholder has the absolute and unrestricted
right, power, authority and capacity to execute and deliver this Voting
Agreement and the Proxy and to perform his or her obligations hereunder and
thereunder. This Voting Agreement and the Proxy have been duly executed and
delivered by Shareholder and constitute legal, valid and binding obligations of
Shareholder, enforceable against Shareholder in accordance with their terms,
subject to (i) laws of general application relating to bankruptcy, insolvency
and the relief of debtors, and (ii) rules of law governing specific performance,
injunctive relief and other equitable remedies.
5.2. No Conflicts or Consents.
(a) The execution and delivery of this Voting Agreement and the Proxy by
Shareholder do not, and the performance of this Voting Agreement and the Proxy
by Shareholder will not: (i) conflict with or violate any law, rule, regulation,
order, decree or judgment applicable to Shareholder or by which he or she or any
of his or her properties is or may be bound or affected; or (ii) result in or
constitute (with or without notice or lapse of time) any breach of or default
under, or give to any other Person (with or without notice or lapse of time) any
right of termination, amendment, acceleration or cancellation of, or result
(with or without notice or lapse of time) in the creation of any encumbrance or
restriction on any of the Subject Securities pursuant to, any contract to which
Shareholder is a party or by which Shareholder or any of his or her affiliates
or properties is or may be bound or affected.
(b) The execution and delivery of this Voting Agreement and the Proxy by
Shareholder do not, and the performance of this Voting Agreement and the Proxy
by Shareholder will not, require any consent or approval of any Person.
5.3. Title to Securities. As of the date of this Voting Agreement: (a)
Shareholder holds of record (free and clear of any encumbrances or restrictions)
the number of outstanding shares of Bancorp Common Stock set forth next to the
heading "Shares Held of Record" on the signature page hereof; (b) Shareholder
holds the Subject Securities (free and clear of any encumbrances or
restrictions) set forth next to the heading "Options and Other Rights" on the
signature page hereof; (c) Shareholder Owns the additional securities of Bancorp
set forth next to the heading "Additional Securities Beneficially Owned" on the
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signature page hereof; and (d) Shareholder does not directly or indirectly Own
any shares of capital stock or other securities of Bancorp, or any option,
warrant or other right to acquire (by purchase, conversion or otherwise) any
shares of capital stock or other securities of Bancorp, other than the shares
and options, warrants and other rights set forth on the signature page hereof.
5.4. Accuracy of Representations. The representations and warranties
contained in this Voting Agreement are accurate in all respects as of the date
of this Voting Agreement, will be accurate in all respects at all times through
the Expiration Date and will be accurate in all respects as of the date of the
consummation of the Combination as if made on that date.
6. Additional Covenants of Each Shareholder.
-----------------------------------------
6.1. Further Assurances. From time to time and without additional
consideration, each Shareholder shall (at such Shareholder's sole expense)
execute and deliver, or cause to be executed and delivered, such additional
transfers, assignments, endorsements, proxies, consents and other instruments,
and shall (at such Shareholder's sole expense) take such further actions, as
Xxxxxxx may reasonably request for the purpose of carrying out and furthering
the intent of this Voting Agreement.
7. Miscellaneous.
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7.1. Survival of Representations, Warranties and Agreements. All
representations, warranties, covenants and agreements made by each Shareholder
in this Voting Agreement shall expire upon the Expiration Date.
7.2. Indemnification. Each Shareholder, severally and not jointly, shall
hold harmless and indemnify Xxxxxxx and Xxxxxxx'x affiliates from and against,
and shall compensate and reimburse Xxxxxxx and Xxxxxxx'x affiliates for, any
loss, damage, claim, liability, fee (including any attorney fee), demand, cost
or expense (regardless of whether or not such loss, damage, claim, liability,
fee, demand, cost or expense relates to a third-party claim) that is directly or
indirectly suffered or incurred by Xxxxxxx or any of Xxxxxxx'x affiliates, or to
which Xxxxxxx or any of Xxxxxxx'x affiliates otherwise becomes subject, and that
arises directly or indirectly from, or relates directly or indirectly to, (a)
any inaccuracy in or breach of any representation or warranty contained in this
Voting Agreement, or (b) any failure on the part of such Shareholder to observe,
perform or abide by, or any other breach of, any restriction, covenant,
obligation or other provision contained in this Voting Agreement or in the
Proxy.
7.3. Expenses. All costs and expenses incurred in connection with the
transactions contemplated by this Voting Agreement shall be paid by the party
incurring such costs and expenses.
7.4. Notices. Any notice or other communication required or permitted to
be delivered to either party under this Voting Agreement shall be in writing and
shall be deemed properly delivered, given and received when delivered (by hand,
by registered mail, by courier or express delivery service or by facsimile) to
the address or facsimile telephone number set forth
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beneath the name of such party below (or to such other address or facsimile
telephone number as such party shall have specified in a written notice given to
the other party):
(a) If to a Shareholder, at the address set forth below such Shareholder's
signature on the signature page hereof; and
(b) If to Xxxxxxx:
Xxxxxxx Community Bank
0000 Xxxxxxx 00
Xxx Xxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx Xxxxxx, Chairman
Xxxx X. Xxxxxxx, President and CEO
7.5. Severability. If any provision of this Voting Agreement or any part
of any such provision is held under any circumstances to be invalid or
unenforceable in any jurisdiction, then (a) such provision or part thereof
shall, with respect to such circumstances and in such jurisdiction, be deemed
amended to conform to applicable laws so as to be valid and enforceable to the
fullest possible extent, (b) the invalidity or unenforceability of such
provision or part thereof under such circumstances and in such jurisdiction
shall not affect the validity or enforceability of such provision or part
thereof under any other circumstances or in any other jurisdiction, and (c) the
invalidity or unenforceability of such provision or part thereof shall not
affect the validity or enforceability of the remainder of such provision or the
validity or enforceability of any other provision of this Voting Agreement. Each
provision of this Voting Agreement is separable from every-other provision of
this Voting Agreement, and each part of each provision of this Voting Agreement
is separable from every other part of such provision.
7.6. Entire Agreement. This Voting Agreement, the Proxy and any other
documents delivered by the parties in connection herewith constitute the entire
agreement between the parties with respect to the subject matter hereof and
thereof and supersede all prior agreements and understandings between the
parties with respect thereto. No addition to or modification of any provision of
this Voting Agreement shall be binding upon either party unless made in writing
and signed by both parties.
7.7. Assignment; Binding Effect. Except as provided herein, neither this
Voting Agreement nor any of the interests or obligations hereunder may be
assigned or delegated by any Shareholder and any attempted or purported
assignment or delegation of any of such interests or obligations shall be void.
Subject to the preceding sentence, this Voting Agreement shall be binding upon
each Shareholder and his or her heirs, estate, executors, personal
representatives, successors and assigns, and shall inure to the benefit of
Xxxxxxx and its successors and assigns. Without limiting any of the restrictions
set forth in Section 2 or elsewhere in this Voting Agreement, this Voting
Agreement shall be binding upon any Person to whom any Subject Securities are
transferred. Nothing in this Voting Agreement is intended to confer on any
Person (other than Xxxxxxx and its successors and assigns) any rights or
remedies of any nature.
7.8. Specific Performance. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Voting Agreement or the
Proxy was not performed in
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accordance with its specific terms or was otherwise breached. Each Shareholder,
severally and not jointly, agrees that, in the event of any breach or threatened
breach by a Shareholder of any covenant or obligation contained in this Voting
Agreement or in the Proxy, Xxxxxxx shall be entitled (in addition to any other
remedy that may be available to it, including monetary damages) to seek and
obtain (a) a decree or order of specific performance to enforce the observance
and performance of such covenant or obligation, and (b) an injunction
restraining such breach or threatened breach. Each Shareholder further agrees
that neither Xxxxxxx nor any other Person shall be required to obtain, furnish
or post any bond or similar instrument in connection with or as a condition to
obtaining any remedy referred to in this Section 7.8, and each Shareholder
irrevocably waives any right he, she or it may have to require the obtaining,
furnishing or posting of any such bond or similar instrument.
7.9. Non-Exclusivity. The rights and remedies of Xxxxxxx under this Voting
Agreement are not exclusive of or limited by any other rights or remedies which
it may have, whether at law, in equity, by contract or otherwise, all of which
shall be cumulative (and not alternative). Without limiting the generality of
the foregoing, the rights and remedies of Xxxxxxx under this Voting Agreement,
and the obligations and liabilities of each Shareholder under this Voting
Agreement, are in addition to their respective rights, remedies, obligations and
liabilities under common law requirements and under all applicable statutes,
rules and regulations.
7.10. Governing Law; Venue.
(a) This Voting Agreement and the Proxy shall be construed in accordance
with, and governed in all respects by, the laws of the State of New Jersey
(without giving effect to principles of conflicts of laws).
(b) Any legal action or other legal proceeding relating to this Voting
Agreement or the Proxy or the enforcement of any provision of this Voting
Agreement or the Proxy may be brought or otherwise commenced in any state or
federal court located in the State of New Jersey. Each Shareholder:
(i) expressly and irrevocably consents and submits to the jurisdiction of
each state and federal court located in the State of New Jersey (and each
appellate court located in the State of New Jersey), in connection with
any such legal proceeding;
(ii) agrees that service of any process, summons, notice or document by
U.S. mail addressed to him or her at the address set forth in Section 7.4
shall constitute effective service of such process, summons, notice or
document for purposes of any such legal proceeding;
(iii) agrees that each state and federal court located in the State of New
Jersey shall be deemed to be a convenient forum; and
(iv) agrees not to assert (by way of motion, as a defense or otherwise),
in any such legal proceeding commenced in any state or federal court
located in the State of New Jersey, any claim that Shareholder is not
subject personally to the jurisdiction of such court, that such legal
proceeding has been brought in an inconvenient forum, that the
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venue of such proceeding is improper, or that this Voting Agreement or the
subject matter of this Voting Agreement may not be enforced in or by such
court.
Nothing contained in this Section 7.10 shall be deemed to limit or
otherwise affect the right of Xxxxxxx to commence any legal proceeding or
otherwise proceed against a Shareholder in any other forum or jurisdiction.
7.11. Counterparts. This Voting Agreement may be executed by the parties
in separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute one and the
same instrument.
7.12. Captions. The captions contained in this Voting Agreement are for
convenience of reference only, shall not be deemed to be a part of this Voting
Agreement and shall not be referred to in connection with the construction or
interpretation of this Voting Agreement.
7.13. Attorneys' Fees. If any legal action or other legal proceeding
relating to this Voting Agreement or the enforcement of any provision of this
Voting Agreement is brought against a Shareholder, the prevailing party shall be
entitled to recover reasonable attorneys' fees, costs and disbursements (in
addition to any other relief to which the prevailing party may be entitled).
7.14. Waiver. No failure on the part of Xxxxxxx to exercise any power,
right, privilege or remedy under this Voting Agreement, and no delay on the part
of Xxxxxxx in exercising any power, right, privilege or remedy under this Voting
Agreement, shall operate as a waiver of such power, right, privilege or remedy;
and no single or partial exercise of any such power, right, privilege or remedy
shall preclude any other or further exercise thereof or of any other power,
right, privilege or remedy. Xxxxxxx shall not be deemed to have waived any claim
available to Xxxxxxx arising out of this Voting Agreement, or any power, right,
privilege or remedy of Xxxxxxx under this Voting Agreement, unless the waiver of
such claim, power, right, privilege or remedy is expressly set forth in a
written instrument duly executed and delivered on behalf of Xxxxxxx; and any
such waiver shall not be applicable or have any effect except in the specific
instance in which it is given.
7.15. Construction.
(a) For purposes of this Voting Agreement, whenever the context requires,
(i) the singular number shall include the plural, and vice versa; (ii) the
masculine gender shall include the feminine and neuter genders; (iii) the
feminine gender shall include the masculine and neuter genders; and the neuter
gender shall include masculine and feminine genders.
(b) The parties agree that any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be applied
in the construction or interpretation of this Voting Agreement.
(c) As used in this Voting Agreement, the words "include" and "including,"
and variations thereof, shall not be deemed to be terms of limitation, but
rather shall be deemed to be followed by the words "without limitation."
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(d) Except as otherwise indicated, all references in this Voting Agreement
to "Sections" and "Exhibits" are intended to refer to Sections of this Voting
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IN WITNESS WHEREOF, Xxxxxxx and the Shareholders have caused this Voting
Agreement to be executed as of the date first written above.
XXXXXXX COMMUNITY BANK
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxx
Title: President and Chief Executive Officer
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SHAREHOLDERS
Additional
Securities
Shares Held of Options and Beneficially
Signatures Addresses Record Other Rights Owned
---------- --------- ------ ------------ -----
/s/ Xxxxx X. Xxxxxxx 000 X. Xxxxxxxx Xxxxx 25,432 54,652 N/A
-------------------- Xxxx Xxxxxxxxxx, XX 00000
Xxxxx X. Xxxxxxx
/s/ Xxxxxxx Xxxxxxxx, III 000 Xxxxxxxx Xxxxxx 1,775 19,991 N/A
------------------------- Xxxx Xxxxxx, XX 00000
Xxxxxxx Xxxxxxxx, III
/s/ Xxxxxxx X. Xxxxxxx 000 Xxxxxxxxxx Xxxxxx 12,151 32,385 N/A
---------------------- Xxxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxxxxxxx 0 Xxx Xxxxx Xxxxxx 141,444 15,929 N/A
---------------------- Xxxx Xxxxxx, XX 00000
Xxxx X. Xxxxxxxxxx
/s/ Xxxxx X. Xxxxx 10 Xxxxx Drive 69,886 15,929 N/A
------------------ Xxxx Xxxx Xxxxxx, XX 00000
Xxxxx X. Xxxxx
/s/ Xxxx X. Xxxxxx 00 Xxxxx Xxxx Xxxxxx 26,364 15,929 N/A
------------------ Xxxxxx, XX 00000
Xxxx X. Xxxxxx
/s/ Xxxxxxxx X. Xxxxxxxxx 00 Xxxx Xxxxx Xxxx 19,869 15,929 N/A
------------------------- Xxxxxx, XX 00000
Xxxxxxxx X. Xxxxxxxxx
/s/ Xxxx X. XxXxxx 000 Xxxxxxx Xxxxxx 58,513 15,929 N/A
------------------ Xxxxxx, XX 00000
Xxxx X. XxXxxx
/s/ Xxxxxx X. Xxxxxx, Xx. 000 Xxxx Xxxx 60,800 15,929 N/A
------------------------- Xxxxxxx, XX 00000
Xxxxxx X. Xxxxxx, Xx.
/s/ Xxxxxx X. Xxxxx 8 XxXxxx Court 22,746 15,929 N/A
------------------- Xxxx Xxxx Xxxxxx, XX 00000
Xxxxxx X. Xxxxx
/s/ Xxxx X. Xxxxx 15 Page Drive 53,001 15,929 N/A
----------------- Xxx Xxxx, XX 00000
Xxxx X. Xxxxx
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EXHIBIT A - FORM OF IRREVOCABLE PROXY
The undersigned Shareholder of Monmouth Community Bancorp, a corporation
organized under the laws of the State of New Jersey (together with its
successors, "Bancorp"), hereby irrevocably (to the fullest extent permitted by
law) appoints and constitutes, Xxxxxx Xxxxxx, Xxxx X. Xxxxxxx and Xxxxxxx
Community Bank, a New Jersey commercial bank ("Xxxxxxx"), and each of them, the
attorneys and proxies of the undersigned with full power of substitution and
resubstitution, to the full extent of the undersigned's rights with respect to
(i) the outstanding shares of capital stock of Bancorp owned of record by the
undersigned as of the date of this proxy, which shares are specified on the
final page of this proxy, and (ii) any and all other shares of capital stock of
Bancorp which the undersigned may acquire on or after the date hereof. (The
shares of the capital stock of Bancorp referred to in clauses "(i)" and "(ii)"
of the immediately preceding sentence are collectively referred to as the
"Shares.") Upon the execution hereof, all prior proxies given by the undersigned
with respect to any of the Shares are hereby revoked, and the undersigned agrees
that no subsequent proxies will be given with respect to any of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted in
connection with the Voting Agreement, dated as of the date hereof, among
Xxxxxxx, the undersigned and certain other Shareholders of Bancorp (the "Voting
Agreement"), and is granted in consideration of Xxxxxxx entering into the
Agreement and Plan of Acquisition dated June 30, 2004 between Xxxxxxx and
Bancorp (the "Combination Agreement").
The attorneys and proxies named above will be empowered, and may exercise
this proxy, to vote the Shares at any time until the earlier to occur of the
valid termination of the Combination Agreement or the effective time of the
combination contemplated thereby (the "Combination") at any meeting of the
Shareholders of Bancorp, however called, or in connection with any solicitation
of written consents from shareholders of Bancorp, in favor of the approval and
adoption of the Combination Agreement and the approval of the Combination, and
in favor of each of the other actions contemplated by the Combination Agreement.
The undersigned may vote the Shares on all other matters.
This proxy shall be binding upon the heirs, estate, executors, personal
representatives, successors and assigns of the undersigned (including any
transferee of any of the Shares).
If any provision of this proxy or any part of any such provision is held
under any circumstances to be invalid or unenforceable in any jurisdiction, then
(a) such provision or part thereof shall, with respect to such circumstances and
in such jurisdiction, be deemed amended to conform to applicable laws so as to
be valid and enforceable to the fullest possible extent, (b) the invalidity or
unenforceability of such provision or part thereof under such circumstances and
in such jurisdiction shall not affect the validity or enforceability of such
provision or part thereof under any other circumstances or in any other
jurisdiction, and (c) the invalidity or unenforceability of such provision or
part thereof shall not affect the validity or enforceability of the remainder of
such provision or the validity or enforceability of any other provision of this
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proxy. Each provision of this proxy is separable from every other provision of
this proxy, and each part of each provision of this proxy is separable from
every other part of such provision.
This proxy shall terminate upon the earlier of the valid termination of
the Combination Agreement or the effective time of the Combination.
Dated: ______________________, 2004
---------------------------------------
Name:
Number of shares of common stock of Bancorp
owned of record as of the date of this proxy:
------------------------------------
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