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EXHIBIT 2.2
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement"), dated as of August 19, 1999,
among the undersigned shareholders (the "Shareholders") of DAIRY STATE FINANCIAL
SERVICES, INC., a Wisconsin corporation (the "Company"), and FIRST MANITOWOC
BANCORP, INC., a Wisconsin corporation ("FMB").
RECITAL
The Shareholders, the Company and FMB acknowledge the following:
A. Concurrent with the execution of this Agreement, the Company, FMB
and FMB Interim Corp., a Wisconsin corporation and a wholly owned subsidiary of
FMB ("Interim"), have entered into an Agreement and Plan of Merger (the "Merger
Agreement"), providing for the business combination transaction contemplated
therein pursuant to which Interim will merge with and into the Company pursuant
to the terms and conditions of the Merger Agreement ("Merger").
B. Upon consummation of the Merger, the Shareholders will receive
$4,662.33 for each share of Company Common Stock, par value $50 per share (the
"Company Common Stock"), owned by them.
C. The Shareholders own the shares of Company Common Stock set forth
opposite such Shareholder's respective names on Exhibit A hereto (such shares
set forth on Exhibit A, and together with all shares of Company Common Stock
subsequently acquired by any Shareholder during the term of this Agreement,
being referred to as the "Shares").
D. In order to induce FMB to enter into the Merger Agreement and in
consideration of the substantial expenses incurred and to be incurred by FMB in
connection therewith, the Shareholders have agreed to enter into and perform
this Voting Agreement.
AGREEMENTS
In consideration of the Recitals and the mutual agreements
which follow, Shareholders, the Company and FMB agree as follows:
1. Agreement to Vote Shares. Each of the Shareholders shall vote or
cause to be voted, or express a written consent with respect to, all of such
Shareholder's Shares (a) in favor of adoption and approval of the Merger
Agreement and the Merger at every meeting of the Shareholders of the Company at
which such matters are considered and at every adjournment thereof and in
connection with every proposal to take action by written consent with respect
thereto and (b) against any proposal for a Competing Transaction (as such term
is defined in the Merger Agreement) at every meeting of the shareholders of the
Company at which such matters are considered and at every adjournment thereof
and in connection with
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every proposal to take action by written consent with respect thereto.
2. No Voting Trusts. Each of the Shareholders agrees that such
Shareholder will not, nor will such Shareholder permit any entity under such
Shareholder's control to, deposit any of such Shareholder's Shares in a voting
trust or subject any of their Shares to any agreement, arrangement or
understanding with respect to the voting of such Shares inconsistent with this
Agreement.
3. Limitation on Sales. During the term of this Agreement each
Shareholder agrees not to sell, assign, transfer or dispose of any such
Shareholder's Shares. Notwithstanding the foregoing, (a) any Shareholder may,
during the term of this Agreement, gift, sell or otherwise transfer shares to
(i) (a) member or members of a group consisting of such Shareholder's spouse,
such Shareholder's issue, the spouses of such Shareholder's issue, or any
charitable organization, (ii) any trust or custodian account created for the
primary benefit of any one or more of such Shareholder or the permitted
transferees described in clause (i) above or (iii) a general partnership,
limited partnership, limited liability company or other business entity all of
the equity interests of which are held by such Shareholder or the permitted
transferees described in clause (i) above, (b) a Shareholder that is a trust,
custodian or business entity may transfer Shares to a beneficiary or equity
owner of said trust, account or business entity and (c) an individual
Shareholder who acquired Shares pursuant to this sentence may transfer such
Shares only to the Shareholder from whom, directly or indirectly, such
transferring Shareholder acquired said Shares or parties to whom such
transferring Shareholder is permitted to transfer Stock pursuant to this
sentence; provided, however, that in each case any such permitted transferee
agrees in writing to be bound to the terms of this Agreement.
4. Purchase Right. Each of the Shareholders hereby grants to FMB the
exclusive right ("Purchase Rights") to purchase any and all of such
Shareholders' Shares for a price of $4,662.33 per share, payable in cash. The
exercise of the Purchase Rights by FMB, with respect to any amount of Shares
that exceeds 5% of the outstanding voting stock of the Company is subject to the
approval of the Board of Governors of the Federal Reserve System and any other
necessary regulatory approvals. The Purchase Rights are exercisable at any time
prior to the earlier of the Effective Time, as defined in the Merger Agreement,
or the termination of the Merger Agreement and only after (a) a material breach
by the Company of the covenants contained in Sections 6.01 and 6.02 of the
Merger Agreement, which breach is not cured to the reasonable satisfaction of
FMB within 10 business days following receipt by the Company of notice of such
breach or (b) a breach by a Shareholder of this Agreement which breach is not
cured to the reasonable satisfaction of FMB within 10 business days following
receipt by such Shareholder of notice of such breach; provided, however, in the
event such option is exercised, FMB agrees to take all necessary action to
ensure that the Merger and the other transactions contemplated in the Merger
Agreement are consummated.
5. Shareholders' Representations. Each Shareholder severally represents
that: (a) such Shareholder has the complete and unrestricted power and
unqualified right to enter into and perform the terms of this Agreement; (b)
this Agreement constitutes a valid and binding
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agreement with respect to such Shareholder, enforceable against such Shareholder
in accordance with its terms and (c) such Shareholder owns the number of Shares
indicated opposite such Shareholder's name on Exhibit A hereto, has the sole and
unrestricted voting power with respect to such Shares and such Shares are all of
the Shares directly or indirectly held by such Shareholder.
6. Specific Performance and Remedies. The parties hereto acknowledge
that it will be impossible to measure in money the damage to the other
party(ies) if a party hereto fails to comply with the obligations imposed by
this Agreement and that, in the event of such failure, the other party(ies) will
not have an adequate remedy at law or in damages. Accordingly, each party hereto
agrees that injunctive relief or other equitable remedy, in addition to remedies
at law or in damages, is the appropriate remedy for any such failure. No party
will oppose the granting of injunctive relief or other equitable remedy on the
basis that the other party(ies) have an adequate remedy at law. Each party
hereto agrees that it will not seek, and agrees to waive any requirement for,
the securing or posting of a bond in connection with any other party's seeking
or obtaining such equitable relief. In addition to all other rights or remedies
which any party hereto may have against any other party hereto who defaults in
the performance of such party's obligations under this Agreement, such
defaulting party shall be liable to the nondefaulting party for all litigation
costs and attorneys' fees incurred by the nondefaulting party(ies) in connection
with the enforcement of any of the nondefaulting party's rights or remedies
against the defaulting party.
7. Term of the Agreement: Termination. The term of this Agreement shall
commence on the date hereof and such term and this Agreement shall terminate
upon the earlier to occur of (a) the Effective Time (as defined in the Merger
Agreement) and (b) the date on which the Merger Agreement is terminated in
accordance with its terms. Upon such termination, no party shall have any
further obligations or liabilities hereunder; provided, that such termination
shall not relieve any party from liability for any breach of this Agreement
prior to such termination.
8. Entire Agreement. This Agreement supersedes all prior agreements,
written or oral, among the parties hereto with respect to the subject matter
hereof and contains the entire agreement among the parties with respect to the
subject matter hereof. This Agreement may not be amended, supplemented or
modified, and no provisions hereof may be modified or waived, except by an
instrument in writing signed by all parties hereto. No waiver of any provisions
hereof by any party shall not be deemed a waiver of any other provisions hereof
by any such party, nor shall any such waiver be deemed a continuing waiver of
any provision hereof by such party.
9. Notices. All notices, requests, claims, demands or other
communications hereunder shall be in writing and shall be deemed given when
delivered personally, upon receipt of a transmission confirmation if sent by
telecopy or like transmission and on the next business day when sent by Federal
Express, Express Mail or other reputable overnight courier service to the
parties at the following addresses (or at such other address for a party as
shall be
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specified by like notice):
If to FMB or Interim:
First Manitowoc Bancorp, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇ & Friedrich LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
If to a Shareholder, the signature page hereof to the address or
telecopy number set forth for such Shareholder on the signature page hereof:
▇▇▇▇▇ & Lardner
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇
10. Miscellaneous.
(a) This Agreement shall be deemed a contract made under, and
for all purposes shall be construed in accordance with, the laws of the State of
Wisconsin, without reference to its conflicts of law principles.
(b) If any provision of this Agreement or the application of
such provision to any person or circumstances shall be held invalid or
unenforceable by a court of competent jurisdiction, such provision or
application shall be unenforceable only to the extent of such invalidity or
unenforceability, and the remainder of the provision held invalid or
unenforceable and the application of such provision to persons or circumstances,
other than the party as to which it is held invalid, and the remainder of this
Agreement, shall not be affected.
(c) This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
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(d) All Section headings herein are for convenience of
reference only and are not part of this Agreement, and no construction or
reference shall be derived therefrom.
(e) In the event any Shareholder acquires any additional
Shares during the term of this Agreement, then such Shareholder agrees that the
provisions of this Agreement shall apply to such additional Shares.
IN WITNESS WHEREOF, the parties hereto have executive and
delivered this Agreement as of the date first written above.
FIRST MANITOWOC BANCORP, INC.
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇, President
▇▇▇▇▇▇ ▇. CHIPLES REVOCABLE TRUST ▇▇▇▇▇ ▇. ▇▇▇ AND ▇▇▇▇▇▇ ▇▇▇
REVOCABLE TRUST
By: By:
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Its: Its:
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▇▇▇ ▇▇▇▇▇▇▇ REVOCABLE TRUST ▇▇▇▇▇▇ ▇▇▇▇▇▇ AND ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
REVOCABLE TRUST
By:
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By: Its:
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Its:
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EXHIBIT A
SHAREHOLDER NOTICE ADDRESS NUMBER OF COMMON SHARES
▇▇▇▇▇▇ ▇. Chiples Revocable Trust 311 Shares
▇▇▇ ▇▇▇▇▇▇▇ Revocable Trust 330 Shares
▇▇▇▇▇ ▇. ▇▇▇ and ▇▇▇▇▇▇ ▇▇▇ Revocable 507 Shares
Trust
▇▇▇▇▇▇ ▇▇▇▇▇▇ and 561 Shares
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Revocable Trust
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