VOTING AGREEMENT
Exhibit 99.1
This VOTING AGREEMENT (this “Agreement”)
is dated as of July 15, 2010, by and between the
undersigned holder (“Shareholder”) of one or
more shares of shares of common stock, par value $.10 per share
(the “Company Common Stock”) of LSB
Corporation, a Massachusetts corporation (the
“Company”), and People’s United Financial,
Inc., a Delaware corporation (the “Buyer”). All
capitalized terms used but not defined herein shall have the
meanings assigned to them in the Merger Agreement (defined
below).
WHEREAS, the Shareholder is the holder of one or more
shares of Company Common Stock;
WHEREAS, concurrently with the execution of this
Agreement, the Buyer, the Buyer Bank, Merger Sub, the Company
and the Company Bank are entering into an Agreement and Plan of
Merger dated July 15, 2010 (as such agreement may be
subsequently amended or modified, the “Merger
Agreement”), pursuant to which Merger Sub shall merge
with and into the Company and, in connection therewith, each
outstanding share of Company Common Stock will be converted into
the right to receive the Merger Consideration;
WHEREAS, Shareholder owns or has the right to vote the
shares of Company Common Stock identified on
Exhibit A hereto (such shares, together with all
shares of Company Common Stock subsequently acquired by
Shareholder during the term of this Agreement, including through
the exercise of any stock option or other equity award, warrant
or similar instrument, being referred to as the
“Shares”); and
WHEREAS, it is a condition to the willingness of the
Buyer to enter into the Merger Agreement that Shareholder
execute and deliver this Agreement.
NOW, THEREFORE, in consideration of the promises,
representations, warranties and agreements contained herein, and
for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
Section 1. Agreement
to Vote Shares. Shareholder agrees that,
prior to the Expiration Date (as defined in Section 8), at
any meeting of shareholders of the Company, however called, or
at any adjournment or postponement thereof, or in connection
with any written consent of the shareholders of the Company,
except as otherwise agreed to in writing in advance by the
Buyer, Shareholder shall:
(a) appear at each such meeting, in person or by proxy, and
thereby cause the Shares to be counted as present thereat for
purposes of calculating a quorum; and
(b) from and after the date hereof until the Expiration
Date, vote (or cause to be voted), in person or by proxy, or
deliver a written consent (or cause a consent to be delivered)
with respect to, all the Shares (whether acquired heretofore or
hereafter) that are beneficially owned by Shareholder, or as to
which Shareholder has, directly or indirectly, the right to vote
or direct the voting, (i) in favor of approval of the
Merger Agreement; (ii) in favor of any matter reasonably
necessary for consummation of the transactions contemplated by
the Merger Agreement; (iii) against any action or agreement
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
Shareholder contained in this Agreement; and (iv) against
any Acquisition Proposal or any other action, agreement or
transaction that is intended, or could reasonably be expected,
to materially impede, interfere or be inconsistent with, delay,
discourage or materially and adversely affect consummation of
the transactions contemplated by the Merger Agreement or any of
Shareholder’s obligations under this Agreement.
Section 2. No
Inconsistent Agreements. Shareholder hereby
agrees that Shareholder shall not enter into any voting
agreement or grant a proxy or power of attorney with respect to
such the Shares that is inconsistent with Shareholder’s
obligations under this Agreement.
Section 3. No
Transfers. From and after the date hereof
until the Expiration Date and except as contemplated by this
Agreement or the Merger Agreement, Shareholder agrees not to,
directly or indirectly, sell, transfer, pledge, assign or
otherwise dispose of, 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 of the Shares, except the following transfers shall be permitted: (a) transfers by will or operation of law, in which case this 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 Agreement, (c) transfers in connection with estate or tax planning or similar purposes, including transfers to relatives, trusts, foundations and charitable organizations, subject to the transferee first agreeing in writing to be bound by the terms of this Agreement, and (d) such transfers as the Buyer may otherwise permit in its sole discretion. Any transfer or other disposition in violation of the terms of this Section 3 shall be null and void. |
Section 4. Representations
and Warranties of Shareholder. Shareholder
represents and warrants to and agrees with the Buyer as follows:
(a) Shareholder has all requisite capacity and authority to
enter into and perform his, her or its obligations under this
Agreement.
(b) This Agreement has been duly executed and delivered by
Shareholder, and assuming the due authorization, execution and
delivery by the Buyer, constitutes the valid and legally binding
obligation of Shareholder enforceable against Shareholder in
accordance with its terms (except as such enforceability may be
limited by applicable bankruptcy, insolvency and similar laws
affecting creditors’ rights and remedies generally and to
general principles of equity, whether applied in a court of law
or a court of equity).
(c) The execution and delivery of this Agreement by
Shareholder does not, and the performance by Shareholder of his,
her or its obligations hereunder and the consummation by
Shareholder of the transactions contemplated hereby will not,
violate or conflict with, or constitute a default under, any
agreement, instrument, contract or other obligation or any
order, arbitration award, judgment or decree to which
Shareholder is a party or by which Shareholder is bound, or any
statute, rule or regulation to which Shareholder is subject or,
in the event that Shareholder is a corporation, partnership,
trust or other entity, any charter, bylaw or other
organizational document of Shareholder.
(d) Shareholder is the record and beneficial owner of, or
is the trustee that is the record holder of, and whose
beneficiaries are the beneficial owners of, and has good title
to all of the Shares set forth on Exhibit A hereto,
and the Shares are so owned free and clear of any liens,
security interests, charges or other encumbrances, except as
otherwise described on Exhibit A hereto. Shareholder
does not own, of record or beneficially, any shares of capital
stock of the Company other than the Shares (other than shares of
capital stock subject to stock options over which Shareholder
will have no voting rights until the exercise of such stock
options, which stock options are set forth on
Exhibit A hereto). The Shares do not include shares
over which Shareholder exercises control in a fiduciary capacity
and no representation by Shareholder is made thereby pursuant to
the terms hereof. Shareholder has the right to vote the Shares
(unless otherwise noted on Exhibit A), and none of
the Shares is subject to any voting trust or other agreement,
arrangement or restriction with respect to the voting of the
Shares, except as contemplated by this Agreement.
Section 5. Irrevocable
Proxy. Subject to the last sentence of this
Section 5, by execution of this Agreement, Shareholder does
hereby appoint the Buyer with full power of substitution and
resubstitution, as Shareholder’s true and lawful attorney
and irrevocable proxy, to the full extent of Shareholder’s
rights with respect to the Shares, to vote, if Shareholder is
unable to perform his, her or its obligations under this
Agreement, each of such Shares that Shareholder shall be
entitled to so vote with respect to the matters set forth in
Section 1 hereof at any meeting of the shareholders of the
Company, and at any adjournment or postponement thereof, and in
connection with any action of the shareholders of the Company
taken by written consent. Shareholder intends this proxy to be
irrevocable and coupled with an interest hereafter until the
Expiration Date and hereby revokes any proxy previously granted
by Shareholder with respect to the Shares. Notwithstanding
anything contained herein to the contrary, this irrevocable
proxy shall automatically terminate upon the Expiration Date of
this Agreement.
Section 6. No
Solicitation. Except as otherwise expressly
permitted under Section 5.1 of the Merger Agreement, from
and after the date hereof until the Expiration Date,
Shareholder, in his, her or its capacity as a shareholder of the
Company, shall not, nor to the extent applicable to Shareholder,
shall such Shareholder authorize any partner, officer, director,
advisor or representative of, such Shareholder or any of his,
her or its affiliates to (and,
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to the extent applicable to Shareholder, such Shareholder shall
use reasonable best efforts to prohibit any of his, her or its
representatives or affiliates to), (a) initiate, solicit,
induce, knowingly encourage, or knowingly take any action that
would reasonably be expected to materially facilitate the making
of, any inquiry, offer, or proposal which constitutes, or could
reasonably be expected to lead to, an Acquisition Proposal,
(b) participate in any discussions or negotiations
regarding any Acquisition Proposal, or furnish or otherwise
afford access to any Person (other than the Buyer, the Buyer
Bank and Merger Sub) any information or data with respect to the
Company or any of its Subsidiaries or otherwise relating to an
Acquisition Proposal, (c) enter into any agreement,
including, without limitation, any agreement in principle,
letter of intent, memorandum of understanding or similar
arrangement with respect to an Acquisition Proposal,
(d) solicit proxies or become a “participant” in
a “solicitation” (as such terms are defined in
Regulation 14A under the Exchange Act) with respect to an
Acquisition Proposal (other than the Merger Agreement) or
otherwise encourage or assist any party in taking or planning
any action that would reasonably be expected to compete with,
restrain or otherwise serve to interfere with or inhibit the
timely consummation of the Merger in accordance with the terms
of the Merger Agreement, (e) initiate a shareholders’
vote or action by consent of the Company’s shareholders
with respect to an Acquisition Proposal, or (f) except by
reason of this Agreement (but without conceding the existence of
a “group” (as such term is used in Section 13(d)
of the Exchange Act) solely by virtue of this Agreement), become
a member of a “group” with respect to any voting
securities of the Company that takes any action in support of an
Acquisition Proposal.
Section 7. Specific
Performance; Remedies; Attorneys
Fees. Shareholder acknowledges that it is a
condition to the willingness of the Buyer to enter into the
Merger Agreement that Shareholder execute and deliver this
Agreement and that it will be impossible to measure in money the
damage to the Buyer if Shareholder fails to comply with the
obligations imposed by this Agreement and that, in the event of
any such failure, the Buyer will not have an adequate remedy at
law or in equity. Accordingly, Shareholder 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 and will not oppose the granting of such relief on
the basis that the Buyer has an adequate remedy at law.
Shareholder further agrees that Shareholder will not seek, and
agrees to waive any requirement for, the securing or posting of
a bond in connection with the Buyer’s seeking or obtaining
such equitable relief. Shareholder also agrees that if
Shareholder fails to comply in any material respect with the
obligations imposed by this Agreement, Shareholder shall pay to
the Buyer all of the Buyer’s reasonable costs and expenses
(including attorneys’ fees) in connection with enforcing
its rights under this Agreement. In addition, after discussing
the matter with Shareholder, the Buyer shall have the right to
inform any third party that the Buyer reasonably believes to be,
or to be contemplating, participating with Shareholder or
receiving from Shareholder assistance in violation of this
Agreement, of the terms of this Agreement and of the rights of
the Buyer hereunder, and that participation by any such persons
with Shareholder in activities in violation of
Shareholder’s agreement with the Buyer set forth in this
Agreement may give rise to claims by the Buyer against such
third party.
Section 8. Term
of Agreement; Termination. As used in this
Agreement, the term ‘‘Expiration Date”
shall mean the earlier to occur of (a) the receipt of
Company Shareholder Approval, (b) such date and time as the
Merger Agreement shall be terminated pursuant to
Article VIII thereof, or (c) upon mutual written
agreement of the parties to terminate this Agreement.
Shareholder shall have the right to terminate this Agreement if
the Merger Agreement is amended to decrease the Merger
Consideration, provided that Shareholder sends notice to the
Buyer of Shareholder’s election to terminate within three
(3) Business Days after the public announcement of such
amendment, in which case the “Expiration Date” shall
mean the date the Buyer receives such notice. Upon termination
or expiration, 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.
Section 9. Entire
Agreement; Amendments. 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
each party hereto. No waiver of any provision hereof by either
party shall be deemed a waiver of any other provision hereof by
any such party, nor shall any such waiver be deemed a continuing
waiver of any provision hereof by such party.
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Section 10. Severability. In
the event that any one or more provisions of this Agreement
shall for any reason be held invalid, illegal or unenforceable
in any respect, by any court of competent jurisdiction, such
invalidity, illegality or unenforceability shall not affect any
other provisions of this Agreement and the parties shall use
their reasonable efforts to substitute a valid, legal and
enforceable provision which, insofar as practical, implements
the purposes and intents of this Agreement.
Section 11. Further
Assurances. Shareholder shall, from time to
time, execute and deliver, or cause to be executed and
delivered, such additional or further consents, documents and
other instruments as the Buyer may reasonably request for the
purpose of effectively carrying out the transactions
contemplated by this Agreement.
Section 12. Capacity
as Shareholder. The covenants contained
herein shall apply to Shareholder solely in his or her capacity
as a shareholder of the Company, and no covenant contained
herein shall apply to Shareholder in his or her capacity as a
director, officer or employee of the Company or in any other
capacity. Nothing contained in this Agreement shall be deemed to
apply to, or limit in any manner, the obligations of Shareholder
to comply with whatever fiduciary duties he or she may have as a
director, officer or employee of the Company and none of the
terms of this Agreement shall be deemed to prohibit or prevent
any director or executive officer from exercising his or her
fiduciary obligations in the context of a Superior Proposal
pursuant to Section 6.5 of the Merger Agreement.
Section 13. Governing
Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware
(without giving effect to choice of law principles that would
cause the laws of another jurisdiction to apply).
Section 14. Jurisdiction. Each
of the parties hereto (i) consents to submit itself to the
personal jurisdiction of the Court of Chancery of the State of
Delaware or, if under applicable law exclusive jurisdiction over
such matter is vested in the federal courts, any court of the
United States located in the State of Delaware, in the event any
dispute arises out of this Agreement or any of the transactions
contemplated by this Agreement, (ii) agrees that it will
not attempt to deny or defeat such personal jurisdiction by
motion or other request for leave from any such court,
(iii) agrees that it will not bring any action relating to
this Agreement or any of the transactions contemplated by this
Agreement in any court other than the Court of Chancery of the
State of Delaware or, if under applicable law exclusive
jurisdiction over such matter is vested in the federal courts,
any court of the United States located in the State of Delaware
and (iv) to the fullest extent permitted by law, consents
to service being made through the notice procedures set forth in
Section 17. Each of the parties hereto hereby agrees that,
to the fullest extent permitted by law, service of any process,
summons, notice or document by U.S. registered mail to the
respective addresses set forth in Section 17 shall be
effective service of process for any suit or proceeding in
connection with this Agreement or the transactions contemplated
hereby.
Section 15. Publication. Shareholder
hereby permits Buyer and the Company to publish and disclose in
press releases, Schedule 13D filings, the Company’s
proxy statement and any other disclosures or filings required by
applicable law, his, her, or its identity and ownership of
shares of the Company Common Stock, the nature of the
commitments, arrangements and understandings pursuant to this
Agreement,
and/or the
text of this Agreement.
Section 16. No
Agreement Until Executed;
Counterparts. Irrespective of negotiations
among the parties or the exchanging of drafts of this Agreement,
this Agreement shall not constitute or be deemed to evidence a
contract, agreement, arrangement or understanding between the
parties hereto unless and until (a) the Merger Agreement is
executed by all parties thereto, and (b) this Agreement is
executed by Shareholder and the Buyer. This Agreement may be
executed and delivered (including by facsimile, email or other
electronic transmission) in one or more counterparts, each of
which when executed shall be deemed to be an original but all of
which taken together shall constitute one and the same agreement.
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Section 17. Notices. All
notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in
person, by facsimile or by registered or certified mail (postage
prepaid, return receipt requested) to the respective parties at
the following addresses (or at such other address for a party as
shall be specified by like notice):
(a) if to Buyer, to
People’s United Financial, Inc.
000 Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx, Interim Chief Executive Officer
Facsimile:
(000) 000-0000
with copies (which shall not constitute notice) to:
People’s United Financial, Inc.
000 Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx, General Counsel
Facsimile:
(000) 000-0000
with an additional copy (which shall not constitute notice) to:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxx X. Xxxxxxxx, Esq.
Facsimile:
(000) 000-0000
(b) if to Shareholder, to the address as set forth under
Shareholder’s signature to this Agreement
with an additional copy (which shall not constitute notice) to:
Xxxxxx, XxXxxxxxx & Fish, LLP
Seaport West
000 Xxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Facsimile:
000-000-0000
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first written above.
PEOPLE’S UNITED FINANCIAL, INC.
| By: |
|
Name:
Title:
SHAREHOLDER
Name:
Address:
Facsimile:
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EXHIBIT A
SHARES OF
COMPANY COMMON STOCK BENEFICIALLY OWNED BY
SHAREHOLDER
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Company |
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Shareholder
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Common Stock1 | Options | ||
1 Shares
include shares allocable to Shareholder’s account under the
Company’s employee benefit plans.
