Exhibit B
VOTING AND SUPPORT AGREEMENT
VOTING AND SUPPORT AGREEMENT, dated September 25, 2002 (this
"Agreement"), between Keycorp, an Ohio corporation ("Acquiror"), and Xxxxxxx X.
Xxxxxxxx (the "Stockholder"). Capitalized terms used but not defined herein
shall have the meanings given to such terms in the Merger Agreement.
W I T N E S S E T H:
WHEREAS, Union Bankshares, Ltd., a Delaware corporation (the
"Company"), and Acquiror are, concurrently with the execution and delivery of
this Agreement, entering into an Agreement and Plan of Merger, dated as of the
date hereof (the "Merger Agreement"), providing for the merger of a wholly owned
subsidiary of Acquiror with and into the Company (the "Merger"); and
WHEREAS, as of the date hereof, the Stockholder is the record and/or
beneficial owner of the shares of Company Common Stock listed next to the
Stockholder's name on the signature page hereto (the "Existing Shares" and,
together with any shares of Company Common Stock or other voting capital stock
of the Company acquired by the Stockholder after the date hereof, the "Shares");
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 Stockholder 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 stockholders of
the Company, however called, or in connection with any written consent of the
stockholders of the Company, the Stockholder shall:
(a) appear at each such meeting or otherwise cause the Shares owned
beneficially or of record by the Stockholder 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 Shares,
and any other voting securities of the Company (whenever acquired), that are
owned beneficially or of record by the Stockholder or as to which the
Stockholder has, directly or indirectly, the right to vote or direct the voting,
(i) in favor of adoption of the Merger Agreement and any other action of the
Company's stockholders requested in furtherance thereof; (ii) against any action
or agreement submitted for approval of the stockholders of the Company that
would 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 Stockholder contained in this Agreement; and (iii) against any
Acquisition Proposal or any other action, agreement or transaction submitted for
approval to the stockholders of the Company that 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, including: (A) any extraordinary corporate transaction, such as
a merger, consolidation or other business combination involving the Company or
its Subsidiaries (other than the Merger); (B) a sale, lease or transfer of a
material amount of assets of the Company or any of its Subsidiaries or a
reorganization, recapitalization or liquidation of the Company or any of its
Subsidiaries; (C) a material change in the policies or management of the
Company; (D) an election of new members to the board of directors of the
Company, except where the vote is cast in favor of the nominees of a majority of
the existing directors; (E) any material change in the present capitalization or
dividend policy of the Company or any amendment or other change to the
Certificate of Incorporation or By-Laws of the Company; or (F) any other
material change in the Company's corporate structure or business; provided,
however, that nothing in this Agreement shall prevent any Stockholder or
representative of the Stockholder from discharging his or her fiduciary duties
as a member of the board of directors of the Company; and provided, further,
however, that the Stockholder shall not be obligated to vote (or cause to be
voted) or deliver any consent with respect to (or cause any consent to be
delivered with respect to) any Shares beneficially owned or controlled by such
Stockholder in the Stockholder's capacity as trustee for or participation in the
Company's 401(k) Profit Sharing Plan.
1.2 No Inconsistent Agreements. The Stockholder hereby covenants and
agrees that, except for this Agreement, the Stockholder (a) has not entered, and
the Stockholder 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 Stockholder and (b) has not granted, and
the Stockholder 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 Stockholder.
1.3 Proxy. The Stockholder agrees to grant to Acquiror a proxy to vote
the Shares owned beneficially and of record by the Stockholder as indicated in
Section 1.1 above if the Stockholder fails for any reason to vote such Shares in
accordance with Section 1.1. The Stockholder agrees that such a proxy would be
coupled with an interest and irrevocable for so long as this Agreement is in
effect, and the Stockholder will take such further action or execute such other
instruments as may be necessary to effectuate the intent of such proxy.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of the Stockholder. The Stockholder
hereby represents and warrants to Acquiror as follows:
(a) Authorization; Validity of Agreement; Necessary Action. The
Stockholder has full power and authority to execute and deliver this Agreement,
to perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution, delivery and performance by the Stockholder
of this Agreement and the consummation by it of the transactions contemplated
hereby have been duly and validly authorized by the Stockholder and no other
actions or proceedings on the part of the Stockholder are necessary to authorize
the execution and delivery by it of this Agreement and the consummation by it of
the transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Stockholder and, assuming this Agreement constitutes a valid
and binding obligation of Acquiror, constitutes a valid and binding obligation
of the Stockholder, enforceable against it 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. The Existing Shares listed opposite the name of the
Stockholder on the signature page hereof are, and such Existing Shares and any
additional shares of Company Common Stock acquired by the Stockholder after the
date hereof and prior to the Effective Time will be, owned beneficially and of
record by the Stockholder. As of the date hereof, the number of shares of
Company Common Stock owned by the Stockholder is listed opposite their name on
the signature page hereof. As of the date hereof, the Existing Shares listed
opposite the name of the Stockholder on the signature page hereof constitute all
of the shares of Company Common Stock held of record, owned by or for which
voting power or disposition power is held or shared by the Stockholder or any of
its affiliates (except for the Shares owned beneficially and of record by any
affiliates of the Stockholder that are parties to this Agreement). Except for
any Shares beneficially owned or controlled by the Stockholder in connection
with his participation in or capacity as a trustee for the Company's 401(k)
Profit Sharing Plan, the Stockholder 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. Except for any Shares
beneficially owned or controlled by the Stockholder in connection with his
participation in or capacity as a trustee for the Company's 401(k) Profit
Sharing Plan, the Stockholder has good and marketable title to the Existing
Shares listed opposite the name of the Stockholder on the signature page hereof,
free and clear of any Liens and the Stockholder will have good and marketable
title to such
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Existing Shares and any additional shares of Company Common Stock acquired by
the Stockholder after the date hereof and prior to the Effective Time, free and
clear of any Liens.
(c) No Violation. The execution and delivery of this Agreement by the
Stockholder does not, and the performance by the Stockholder of its obligations
under this Agreement will not, (i) conflict with or violate any law, ordinance
or regulation of any Governmental Authority applicable to the Stockholder or by
which any of its 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 require redemption or repurchase of or otherwise require the purchase
or sale of any securities, or result in the creation of any Lien on the
properties or assets of the Stockholder pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which the Stockholder is a party or by which the
Stockholder or any of its 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 Stockholder to perform its
obligations hereunder or to consummate the transactions contemplated hereby on a
timely basis.
2.2 Representations and Warranties of Acquiror. Acquiror hereby
represents and warrants to the Stockholder as follows:
(a) Organization; Authorization; Validity of Agreement; Necessary
Action. Acquiror is an Ohio corporation and is validly existing and in good
standing under the laws of Ohio. Acquiror has full corporate power and authority
to execute and deliver this Agreement, to perform its obligations hereunder and
to consummate the transactions contemplated hereby. The execution, delivery and
performance by Acquiror of this Agreement and the consummation by it of the
transactions contemplated hereby have been duly and validly authorized by
Acquiror and no other corporate actions or proceedings on the part of Acquiror
are necessary to authorize the execution and delivery by it of this Agreement
and the consummation by it of the transactions contemplated hereby. This
Agreement has been duly executed and delivered by Acquiror and, assuming this
Agreement constitutes a valid and binding obligation of the Stockholder,
constitutes a valid and binding obligation of Acquiror, enforceable against it
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) No Violation. The execution and delivery of this Agreement by
Acquiror does not, and the performance by Acquiror of its obligations under this
Agreement will not, (i) conflict with or violate the constitutive documents of
Acquiror, (ii) conflict with or violate any law, ordinance or regulation of any
Governmental Authority applicable to Acquiror or by which any of its assets or
properties is bound or (iii) 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
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under, or require redemption or repurchase of or otherwise require the purchase
or sale of any securities, or result in the creation of any Lien on the
properties or assets of Acquiror pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which Acquiror is a party or by which Acquiror or
any of its 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 Acquiror to perform its obligations hereunder
or to consummate the transactions contemplated hereby on a timely basis.
ARTICLE III
OTHER COVENANTS
3.1 Further Agreements of Stockholder. (a) Except (1) for any Shares
beneficially owned or controlled by the Stockholder in connection with his
participation in or capacity as a trustee for the Company's 401(k) Profit
Sharing Plan, (2) for options to acquire Shares to be forfeited to the Company
at or prior to the Effective Time and (3) as contemplated by the Merger
Agreement, the Stockholder 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 (collectively, a
"Transfer") 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 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 owned beneficially and of record by
the Stockholder, any Shares acquired by the Stockholder after the date hereof,
any securities exercisable or exchangeable for or convertible into Company
Common Stock, any other capital stock of the Company or any interest in any of
the foregoing with any person.
(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 Stockholder hereby 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 or other securities of the Company acquired by
the Stockholder, if any, after the date hereof and (ii) 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 Stockholder with respect to any matter described in Section
3.1(a) or (c).
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ARTICLE IV
MISCELLANEOUS
4.1 Termination. This Agreement shall terminate and no party shall have
any rights or duties hereunder if this Agreement is terminated in accordance
with the terms of this Section 4.1. This Agreement and any proxy granted
pursuant to Section 1.3 shall terminate upon the earlier of (i) the later of (A)
the date on which the Merger Agreement is terminated in accordance with Article
VIII thereof and (B) the date three months after the date of this Agreement, and
(ii) the Effective Time (such earlier date the "Termination Date"). Nothing in
this Section 4.1 shall relieve or otherwise limit any party of liability for
breach of this Agreement.
4.2 Stop Transfer Order. In furtherance of this Agreement, the
Stockholder shall and hereby does authorize and instruct the Company to instruct
its transfer agent to enter a stop transfer order with respect to all of the
Existing Shares owned beneficially and of record by the Stockholder and all
Shares acquired by the Stockholder after the date hereof.
4.3 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.
4.4 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
Stockholder, 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
Stockholder in the voting of any of the Shares, except as otherwise provided
herein.
4.5 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:
Keycorp
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
with copies to:
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Keycorp
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
and
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxx
(b) if to Stockholder to the address listed next to the Stockholder's
name on the signature page hereto:
4.6 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." 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. No provision of this
Agreement shall be construed to require Acquiror, the Stockholder or any of its
respective Subsidiaries or affiliates to take any action which would violate any
applicable law (whether statutory or common), rule or regulation.
4.7 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.
4.8 Entire Agreement. This Agreement (together with the Merger
Agreement, 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.
4.9 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO CONTRACTS MADE
AND PERFORMED ENTIRELY WITHIN SUCH STATE. THE PARTIES HEREBY IRREVOCABLY SUBMIT
TO THE JURISDICTION OF THE COURTS OF THE STATE OF DELAWARE AND THE FEDERAL
COURTS OF THE UNITED STATES OF AMERICA LOCATED IN THE STATE OF DELAWARE SOLELY
IN RESPECT OF THE INTERPRETATION AND ENFORCEMENT OF THE PROVISIONS OF THIS
AGREEMENT AND IN RESPECT OF THE TRANSACTIONS CONTEMPLATED HEREBY, AND HEREBY
WAIVE, AND AGREE NOT TO ASSERT, AS A DEFENSE IN ANY ACTION,
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SUIT OR PROCEEDING FOR THE INTERPRETATION OR ENFORCEMENT HEREOF, THAT IT IS NOT
SUBJECT THERETO OR THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS
NOT MAINTAINABLE IN SAID COURTS OR THAT THE VENUE THEREOF MAY NOT BE APPROPRIATE
OR THAT THIS AGREEMENT MAY NOT BE ENFORCED IN OR BY SUCH COURTS, AND THE PARTIES
HERETO IRREVOCABLY AGREE THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR
PROCEEDING SHALL BE HEARD AND DETERMINED IN SUCH A DELAWARE STATE OR FEDERAL
COURT. THE PARTIES HEREBY CONSENT TO AND GRANT ANY SUCH COURT JURISDICTION OVER
THE PERSON OF SUCH PARTIES AND OVER THE SUBJECT MATTER OF SUCH DISPUTE (SOLELY
FOR PURPOSES OF THIS SECTION 4.9 WITH RESPECT TO MATTERS INVOLVING THIS
AGREEMENT AND THE TRANSACTIONS PROVIDED FOR HEREIN) AND AGREE THAT MAILING OF
PROCESS OR OTHER PAPERS IN CONNECTION WITH ANY SUCH ACTION OR PROCEEDING IN THE
MANNER PROVIDED IN SECTION 4.5 OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY
LAW SHALL BE VALID AND SUFFICIENT SERVICE THEREOF.
4.10 Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
4.11 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 specific performance of the terms hereof, this being in
addition to any 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.
4.12 Severability. Any term or provision of this Agreement which 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 stockholders 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.
4.13 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. Subject to the preceding
sentence, 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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4.14 Survival. None of the representations, warranties, covenants and
agreements of the parties herein shall survive beyond the Termination Date.
* * *
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IN WITNESS WHEREOF, the parties hereto 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.
KEYCORP
By /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
XXXXXXX X. XXXXXXXX
/s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Number of Shares owned
beneficially and of record
excluding any such Shares
beneficially owned or controlled
in connection with participation
in or capacity as trustee of the
Company's 401(k) Profit Sharing
Plan: 475,232 SHARES
Address for Notices:
Xxxxxxx X. Xxxxxxxx
Union Bankshares, Ltd.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
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