EXHIBIT D
VOTING AND SUPPORT AGREEMENT
VOTING AND SUPPORT AGREEMENT, dated as of November 1, 2006 (this
"Agreement"), by and between VIB Corp, a corporation organized under the laws of
California ("Acquiror"), and Xxxxx X. Xxxxx (the "Shareholder"), solely in his
individual capacity as beneficial owner of Shares (as defined below).
Capitalized terms used but not defined herein shall have the meanings given to
such terms in the Merger Agreement (as such term is defined below).
W I T N E S S E T H:
WHEREAS, Mid-State Bancshares (the "Company"), Acquiror and Chardonnay
Merger Sub Corp. (Acquiror's wholly-owned subsidiary, "Merger Sub") are,
immediately after the execution and delivery of this Agreement, entering into an
Agreement and Plan of Merger, dated the date hereof (the "Merger Agreement"),
pursuant to which Merger Sub will merge with and into the Company (the "Merger")
and the holders of the Company Common Stock will receive the cash consideration
provided for therein. It is expected that, subsequent to the Merger, the Company
will merge with and into Acquiror, with Acquiror being the surviving corporation
and Company Bank will merge into Acquiror Bank, with Acquiror Bank being the
surviving bank (together the "Other Mergers");
WHEREAS, as of the date hereof, the Shareholder is a member of the
Company's board of directors and is the beneficial owner of the shares of
Company Common Stock (including any restricted shares of Company Common Stock
held by such Shareholder, the "Existing Shares") and options to purchase shares
of Common Stock (the "Existing Options") listed on the signature page hereto.
The Existing Shares and the Existing Options, together with any shares of
Company Common Stock, options to purchase shares of Company Common Stock or
other voting capital stock of the Company acquired by the Shareholder after the
date hereof are referred to herein as the "Shares"; and
WHEREAS, as a condition to entering into the Merger Agreement, Acquiror
has required that the Shareholder, solely in the Shareholder's capacity as a
holder of Shares, enter into, and the Shareholder has agreed to enter into, this
Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements contained herein, and
intending to be legally bound hereby, the parties hereto hereby agree as
follows:
ARTICLE I
VOTING
1.1 Agreement to Vote. The Shareholder irrevocably and unconditionally
agrees that, from and after the date hereof and until the date on which this
Agreement is terminated pursuant to Section 4.1, at the Company Meeting or any
other meeting of the shareholders of the Company, however called, or in
connection with any written consent of the shareholders of the Company, relating
to any proposed action by the shareholders of the Company with respect to the
matters set forth in Section 1.1(b) below, the Shareholder shall:
(a) appear at each such meeting or otherwise cause the Existing Shares
and any shares of Company Common Stock acquired by the Shareholder after the
date hereof, or other voting securities of the Company (whenever acquired) that
are owned beneficially or of record by the Shareholder or as to which he has,
directly or indirectly, the right to vote or direct the voting to be counted as
present thereat for purposes of calculating a quorum; and
(b) vote (or cause to be voted), in person or by proxy, or deliver a
written consent (or cause a consent to be delivered) covering, all the Existing
Shares, any shares of Company Common Stock acquired by the Shareholder after the
date hereof and any other voting securities of the Company (whenever acquired),
in each case that are owned beneficially or of record by the Shareholder or as
to which he has, directly or indirectly, the right to vote or direct the voting,
(i) in favor of approval of the Merger Agreement and any other action of the
Company's shareholders requested in furtherance thereof, and (ii) against any
action or agreement submitted for approval of the shareholders of the Company
that would reasonably be expected to result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the Company
contained in the Merger Agreement or of the Shareholder contained in this
Agreement; and (iii) against any Acquisition Proposal or any other action,
agreement or transaction submitted for approval to the shareholders of the
Company that the Shareholder would reasonably expect is intended, or could
reasonably be expected, to materially impede, interfere or be inconsistent with,
delay, postpone, discourage or materially and adversely affect the Merger or
this Agreement; provided, however, that the parties acknowledge that this
Agreement is entered into by the Shareholder solely in his capacity as
beneficial owner of the Shares and that nothing in this Agreement, including
without limitation Section 3.1(d), shall prevent the Shareholder from
discharging his fiduciary duties as a member of the board of directors of the
Company in such manner as the Shareholder may reasonably deem to be consistent
with such duties; and
(c) otherwise support approval of the Merger Agreement, the Merger and
any other matters required to be approved in order to effect the Merger and the
transactions contemplated by the Merger Agreement.
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1.2 No Inconsistent Agreements. The Shareholder hereby covenants and
agrees that, except for actions taken in furtherance of this Agreement, the
Shareholder (a) has not entered, and shall not enter at any time while this
Agreement remains in effect, into any voting agreement or voting trust with
respect to the Shares owned beneficially or of record by the Shareholder and (b)
has not granted, and shall not grant at any time while this Agreement remains in
effect, a proxy, a consent or power of attorney with respect to the Shares owned
beneficially or of record by the Shareholder.
1.3 Proxy. To the extent permitted by law, the Shareholder hereby
grants to Acquiror a proxy to vote the Shares owned beneficially or of record by
the Shareholder or over which the Shareholder has voting authority as indicated
in Section 1.1 above (which proxy shall be limited to the matters set forth in
Section 1.1). The Shareholder intends that such proxy will be irrevocable and
coupled with an interest and the Shareholder will take such further action or
execute such other instruments as may be necessary to effectuate the intent of
this proxy. Such proxy will expire automatically and without further action by
the parties upon termination of this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of the Shareholder. The Shareholder
hereby represents and warrants to Acquiror as follows:
(a) Authorization; Validity of Agreement; Necessary Action. The
Shareholder has all necessary power and authority to enter into this Agreement
and perform all of the Shareholder's obligations hereunder. This Agreement has
been duly and validly executed and delivered by the Shareholder (and the
Shareholder's spouse, if the Existing Shares constitute community property under
applicable law) and constitutes a valid and legally binding obligation of the
Shareholder and such spouse, enforceable against the Shareholder and such
spouse, as the case may be, in accordance with its terms (except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and to general equity principles).
(b) Ownership. As of the date hereof, the number of shares of Company
Common Stock (including any restricted shares of Company Common Stock)
beneficially owned by the Shareholder and the number of options to purchase
shares of Company Common Stock are listed on the signature page hereof. The
Existing Shares and the Existing Options listed on the signature page hereof
are, and any additional shares of Company Common Stock and any additional
options to purchase shares of Company Common Stock acquired by the Shareholder
after the date hereof and prior to the Effective Time will be, owned (of record
or beneficially) by the Shareholder. As of the date hereof, the Existing Shares
listed on the signature page hereof constitute all of
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the shares of Company Common Stock held of record, beneficially owned by or for
which voting power or disposition power is held or shared by the Shareholder or
any of the Shareholder's affiliates. The Shareholder has and, will have at all
times through the Effective Time, sole voting power, sole power of disposition,
sole power to issue instructions with respect to the matters set forth in
Article I or Section 3.1 hereof, and sole power to agree to all of the matters
set forth in this Agreement, in each case with respect to all of the Existing
Shares and with respect to all of the Shares at the Effective Time, with no
limitations, qualifications or restrictions on such rights, subject to
applicable federal securities laws and the terms of this Agreement. The
Shareholder has good title to the Existing Shares listed on the signature page
hereof, free and clear of any Liens, except as set forth in Schedule A hereto
and, except with respect to Existing Shares transferred in accordance with
Section 3.1(a) hereof, the Shareholder will have good title to such Existing
Shares, Existing Options and to any additional shares of Company Common Stock
and any options to purchase shares of Company Common Stock acquired by the
Shareholder after the date hereof and prior to the Effective Time, free and
clear of any Liens, except as set forth in Schedule A hereto.
(c) No Violation. The execution and delivery of this Agreement by the
Shareholder does not, and the performance by the Shareholder of his obligations
under this Agreement will not, (i) conflict with or violate any law, ordinance
or regulation of any Governmental Authority applicable to the Shareholder or by
which any of his assets or properties is bound or (ii) conflict with, result in
any breach of or constitute a default (or an event that with notice or lapse of
time or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or require payment
under, or result in the creation of any Lien on the properties or assets of the
Shareholder pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which the Shareholder is a party or by which the Shareholder or any of his
assets or properties is bound, except for any of the foregoing as could not
reasonably be expected, either individually or in the aggregate, to materially
impair the ability of the Shareholder to perform his obligations hereunder or to
consummate the transactions contemplated hereby on a timely basis.
ARTICLE III
OTHER COVENANTS
3.1 Further Agreements of Shareholder. (a) The Shareholder hereby
agrees, while this Agreement is in effect, and except as expressly contemplated
hereby, not to sell, transfer, pledge, encumber, assign, distribute, gift or
otherwise dispose of Shares, or enter into any contract, option, commitment or
other arrangement or understanding with respect to the sale, transfer, pledge,
assignment or other disposition of, any Shares (collectively, a "Transfer"),
except for (x) gifts that represent less than 2% of such Shareholder's holdings
of Company Common Stock, and (y) gifts that are made consistent in amounts and
terms with past practices and as previously disclosed to
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Acquiror (in each case (x) and (y), that are made after the Merger has been duly
approved by the requisite vote of the shareholders of the Company), or enforce
or permit the execution of the provisions of any redemption, share purchase or
sale, recapitalization or other agreement with the Company or any other person
with respect to, or enter into any contract, option or other arrangement or
understanding with respect to any Transfer (whether by actual disposition or
effective economic disposition due to hedging, cash settlement or otherwise) of,
any of the Existing Shares, any additional shares of Company Common Stock and
options to purchase shares of Company Common Stock acquired beneficially or of
record by the Shareholder after the date hereof, or any interest therein.
(b) In case of a stock dividend or distribution, or any change in
Company Common Stock by reason of any stock dividend or distribution, split-up,
recapitalization, combination, exchange of shares or the like, the term "Shares"
shall be deemed to refer to and include the Shares as well as all such stock
dividends and distributions and any securities into which or for which any or
all of the Shares may be changed or exchanged or which are received in such
transaction.
(c) The Shareholder agrees, while this Agreement is in effect, to
notify Acquiror promptly, in writing, of (i) the number of any additional shares
of Company Common Stock, any additional options to purchase shares of Company
Common Stock or other securities of the Company acquired by the Shareholder, if
any, after the date hereof, (ii) any rights of voting or disposition with
respect to shares of Company Common Stock acquired after the date hereof and
(iii) with respect to the subject matter contemplated by Section 3.1(d), any
such inquiries or proposals which are received by, any such information which is
requested from, or any such negotiations or discussions which are sought to be
initiated or continued with, the Shareholder.
(d) The Shareholder agrees that he or she will not (directly or
indirectly) and will cause his or her investment banker, financial adviser,
attorney, accountant or other representative or agent not to (directly or
indirectly) initiate, solicit, encourage or facilitate inquiries or proposals
with respect to, or engage in any negotiations concerning, or provide any
confidential or nonpublic information or data to, or have any discussions with,
any person relating to, any Acquisition Proposal (as defined in the Merger
Agreement) from any Person.
(e) The Shareholder agrees, while this Agreement is in effect, not to
(i) take, agree or commit to take any action that would make any representation
and warranty of the Shareholder, as applicable, contained in this Agreement
inaccurate in any respect as of any time during the term of this Agreement or
(ii) agree or commit to take any action necessary to prevent any such
representation or warranty from being inaccurate in any respect at any such
time.
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ARTICLE IV
MISCELLANEOUS
4.1 Termination. This Agreement shall terminate upon the earlier to
occur of (a) the Effective Time and (b) the date and time of termination of the
Merger Agreement by either or both of Acquiror and the Company pursuant to
Section 8.01 of the Merger Agreement. Upon such termination, no party shall have
any further obligations or liabilities hereunder; provided, however, such
termination shall not relieve any party from liability for any willful breach of
this Agreement prior to such termination.
4.2 Further Assurances. From time to time, at the other party's request
and without further consideration, each party shall execute and deliver such
additional documents and take all such further action as may be reasonably
necessary or desirable to consummate the transactions contemplated by this
Agreement.
4.3 No Ownership Interest. Nothing contained in this Agreement shall be
deemed to vest in Acquiror any direct or indirect ownership or incidence of
ownership of or with respect to any Shares. All rights, ownership and economic
benefits of and relating to the Shares shall remain vested in and belong to the
Shareholder, and Acquiror shall have no authority to manage, direct,
superintend, restrict, regulate, govern or administer any of the policies or
operations of the Company or exercise any power or authority to direct the
Shareholder in the voting of any of the Shares, except as otherwise provided
herein.
4.4 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, telecopied (with
confirmation) or delivered by an overnight courier (with confirmation) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
(a) if to Acquiror to:
VIB Corp
0000 Xxxx Xxxxxx
Xx Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxxx Xxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
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Attention: H. Xxxxxx Xxxxx, Esq.
Xxxxx X. Xxxxxxx, Esq.
and
Rabobank Nederland
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx, General Counsel
Facsimile: (000) 000-0000
(b) if to the Shareholder, to the address listed next to his name on
the signature page hereto.
4.5 Interpretation. The words "hereof," "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
section references are to this Agreement unless otherwise specified. Whenever
the words "include," "includes" or "including" are used in this Agreement, they
shall be deemed to be followed by the words "without limitation." Whenever
"knowledge" is used in this Agreement, it shall be deemed to mean the actual
knowledge of the Shareholder. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
4.6 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that both
parties need not sign the same counterpart.
4.7 Entire Agreement. This Agreement (together with the Merger
Agreement as may be amended from time to time, to the extent referred to herein)
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof.
4.8 Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of California without regard to any
applicable principles of conflicts of law.
4.9 Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
4.10 Enforcement. The parties agree that irreparable damage would occur
in the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms. It is accordingly agreed that the parties
shall be entitled to seek specific performance of the terms hereof, this being
in addition to any
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other remedy to which they are entitled at law or in equity. Each of the parties
further agrees to waive any requirements for the securing or posting of any bond
in connection with obtaining any such equitable relief.
4.11 Severability. Any term or provision of this Agreement that is
determined by a court of competent jurisdiction to be invalid or unenforceable
in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent
of such invalidity or unenforceability without rendering invalid or
unenforceable the remaining terms and provisions of this Agreement or affecting
the validity or enforceability of any of the terms or provisions of this
Agreement in any other jurisdiction, and if any provision of this Agreement is
determined to be so broad as to be unenforceable, the provision shall be
interpreted to be only so broad as is enforceable, in all cases so long as
neither the economic nor legal substance of the transactions contemplated hereby
is affected in any manner materially adverse to any party or its shareholders or
limited partners. Upon any such determination, the parties shall negotiate in
good faith in an effort to agree upon a suitable and equitable substitute
provision to effect the original intent of the parties.
4.12 Assignment; Third Party Beneficiaries. Neither this Agreement nor
any of the rights, interests or obligations of any party hereunder shall be
assigned by any of the parties hereto (whether by operation of law or otherwise)
without the prior written consent of the other party. This Agreement will be
binding upon, inure to the benefit of and be enforceable by the parties and
their respective successors and permitted assigns. This Agreement is not
intended to confer upon any person other than the parties hereto any rights or
remedies hereunder.
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IN WITNESS WHEREOF, the parties hereto have signed or have caused this
Agreement to be signed by their respective officers or other authorized persons
thereunto duly authorized as of the date first written above.
VIB Corp., the parent company
for RaboBank N.A.
By: /s/ Xxxxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Director
By: /s/ Cor Broekhuyse
--------------------------------
Name: Cor Broekhuyse
Title: CEO/Chairman
/s/ Xxxxx X. Xxxxx
----------------------------
Xxxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxx
----------------------------
Xxxxxxx X. Xxxxx
Number of Existing Shares: 164,939
Number of Existing Options: 30,000
Address:
0000 Xxxxx Xxx Xxxxx
Xxxxxx Xxxxxx, XX 00000
