Exhibit 10.4
FORM OF
VOTING AGREEMENT
March __, 1997
Pemi Bancorp, Inc.
00 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxxxxxxx 00000-0000
Ladies and Gentlemen:
The undersigned (the "Stockholder") beneficially owns and has sole or
shared voting power with respect to the number of shares of the common stock,
par value $5.00 per share (the "Shares"), of The Berlin City Bank, a New
Hampshire chartered commercial bank (the "Purchaser"), indicated opposite the
Stockholder's name on Schedule 1 attached hereto.
Simultaneously with the execution of this letter agreement, Purchaser,
Xxxxxxxx Financial, Inc., a New Hampshire chartered corporation wholly owned by
Purchaser ("Parent"), Pemi Bancorp, Inc. (the "Company") and Pemigewasset
National Bank, a national bank and wholly-owned subsidiary of the Company (the
"Bank") are entering into an Agreement and Plan of Merger (the "Merger
Agreement") providing, among other things, for the merger (the "Merger") of the
Company with and into Parent, which, as of a date immediately preceding the
Merger, will own all of the issued and outstanding stock of Purchaser. The
undersigned understands that the Company has undertaken and will continue to
undertake substantial expenses in connection with the negotiation and execution
of the Merger Agreement and the subsequent actions necessary to consummate the
Merger and the other transactions contemplated by the Merger Agreement.
In consideration of, and as a condition to, the Company's entering into
the Merger Agreement, and in consideration of the expenses incurred and to be
incurred by the Company in connection therewith, the Stockholder and the Company
agree as follows:
1. AGREEMENT TO VOTE IN FAVOR OF MERGER. The Stockholder (a) shall vote
or cause to be voted all of the Shares that such Stockholder shall be entitled
to so vote, whether such Shares are beneficially owned by such Stockholder on
the date of this letter agreement or are subsequently acquired, at the special
or any other meeting of Purchaser's stockholders to be called and held following
the date hereof, in favor of the approval of the Merger Agreement and the Merger
and (b) shall vote or cause to be voted all such Shares, at such special meeting
or any other meeting of Purchaser's stockholders following the date hereof,
against the approval of any other agreement providing for a merger, acquisition,
consolidation, sale of a material amount of assets or other business combination
of Purchaser or Parent with any person or entity other than the Company or the
Bank; except, in the case of either (a) or (b), to the extent required by
applicable law relating to fiduciary obligations of directors upon advice of
counsel.
2. RESTRICTIONS ON SALE OR OTHER DISPOSITION OF SHARES. The Stockholder
will not sell, assign, transfer or otherwise dispose of (including, without
limitation, by the creation of a Lien (as defined in paragraph 3 below)), or
permit to be sold, assigned, transferred or otherwise disposed of, any Shares
owned by the Stockholder, whether such Shares are held by the Stockholder on the
date of this letter agreement or are subsequently acquired, except (a) transfers
by will or by operation of law, in which case this letter agreement shall bind
the transferee, (b) transfers pursuant to any pledge agreement, subject to the
pledgee agreeing in writing to be bound by the terms of this letter agreement,
(c) transfers in connection with estate planning purposes, including transfers
to relatives, trusts and charitable organizations, subject to the transferee
agreeing in writing to be bound by the terms of this letter agreement, (d)
transfers to any other stockholder of Purchaser who has executed a copy of this
letter agreement on the date hereof with respect to some or all of the Shares
held by such stockholder, and (e) as the Company may otherwise agree in writing
in its sole discretion. The Company shall have the option to elect to have any
existing certificates representing Shares subject to this letter agreement
canceled and reissued bearing the following legend:
"THIS CERTIFICATE, AND THE SHARES REPRESENTED HEREBY, ARE SUBJECT TO
CERTAIN VOTING AND TRANSFER RESTRICTIONS CONTAINED IN A VOTING
AGREEMENT BY AND BETWEEN THE PEMI BANCORP, INC. AND THE BENEFICIAL
OWNER OF THESE SHARES AND MAY BE TRANSFERRED ONLY IN COMPLIANCE
THEREWITH. COPIES OF THE ABOVE-REFERENCED AGREEMENT ARE ON FILE AT THE
OFFICES OF THE BERLIN CITY BANK."
3. REPRESENTATIONS. The Stockholder represents that the Stockholder has
the complete and unrestricted power and the unqualified right to enter into and
perform the terms of this letter agreement. The Stockholder further represents
that this letter agreement constitutes a valid and binding agreement with
respect to the Stockholder, enforceable against the Stockholder in accordance
with its terms. Except as set forth on Schedule 1, the Stockholder represents
that the Stockholder beneficially owns the number of Shares indicated opposite
such Stockholder's name on said Schedule 1, free and clear of any liens, claims,
charges or other encumbrances or restrictions of any kind whatsoever ("Liens"),
and has sole or shared, and otherwise unrestricted, voting power with respect to
such Shares.
4. TERM. Notwithstanding anything herein to the contrary, the
agreements contained herein shall remain in full force and effect until the
earlier of (i) the consummation of the Merger or (ii) the termination of the
Merger Agreement in accordance with Article VIII thereof.
5. EQUITABLE REMEDIES. The Stockholder has signed this letter agreement
intending to be bound thereby. The Stockholder expressly agrees that this letter
agreement shall be specifically enforceable in any court of competent
jurisdiction in accordance with its terms against the Stockholder. All of the
covenants and agreements contained in this letter agreement shall be binding
upon, and inure to the benefit of, the respective parties and their permitted
successors, assigns, heirs, executors, administrators and other legal
representatives, as the case may be.
6. MISCELLANEOUS. This letter agreement may be executed in one or more
counterparts, each of which will be deemed an original but all of which together
shall constitute one and the same instrument. No waivers of any breach of this
letter agreement extended by the Company to the Stockholder shall be construed
as a waiver of any rights or remedies of the Company with respect to any other
stockholder of Purchaser who has executed a copy of this letter agreement with
respect to Shares held by such stockholder or with respect to any subsequent
breach of the Stockholder or any other such stockholder of Purchaser. This
letter agreement is deemed to be signed as a sealed instrument and is to be
governed by the laws of the State of New Hampshire, without giving effect to the
principles of conflicts of laws thereof. If any provision hereof is deemed
unenforceable, the enforceability of the other provisions hereof shall not be
affected.
Please confirm our agreement by signing a copy of this letter.
Very truly yours,
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Name:
AGREED TO AND ACCEPTED
AS OF MARCH ____, 1997
PEMI BANCORP, INC.
By:
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Xxxxxxxx X. Xxxxx
Chairman, President and Chief Executive Officer
Schedule 1
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Name of Number of Shares Shares
Stockholder Beneficially Owned Subject to Pledge
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