Exhibit 2(c)
SHAREHOLDER VOTING AGREEMENT
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SHAREHOLDER VOTING AGREEMENT, dated as of April 30, 2001 (the "Agreement"),
among Xxxxxxxx & Xxxxxx Corporation, a Wisconsin corporation (the "Company") and
the persons listed on Schedule I hereto (each a "Shareholder" and, collectively,
the "Shareholders").
R E C I T A L S:
WHEREAS, concurrently with the execution and delivery of this Agreement,
the Company and National City Bancorporation, an Iowa corporation (the
"Seller"), are entering into an Agreement and Plan of Merger (the "Merger
Agreement"), which provides, among other things, for the merger of Seller with
and into the Company (the "Merger"), all on the terms and subject to the
conditions set forth in the Merger Agreement; and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, the Company has required that the Shareholders agree, and each
Shareholder has agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements set forth herein, the parties hereto agree as follows:
1. Definitions. Terms used and not defined herein, but defined in the
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Merger Agreement, shall have the respective meanings ascribed to them in the
Merger Agreement.
2. Voting.
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(a) Each Shareholder shall, at any meeting of the shareholders of the
Company, however called, or in connection with any written consent of the
shareholders of the Company, vote (or cause to be voted) all Shares then
held of record or beneficially owned by such Shareholder, (i) in favor of
the Merger, the execution and delivery by the Seller of the Merger
Agreement and the approval of the terms thereof and each of the other
actions contemplated by the Merger Agreement and this Agreement and any
actions required in furtherance thereof and hereof and (ii) against any
proposal relating to a Competing Proposal and against any action or
agreement that would impede, frustrate, prevent or nullify this Agreement,
or result in a breach in any respect of any covenant, representation or
warranty or any other obligation or agreement of the Seller under the
Merger Agreement or which would result in any of the conditions set forth
in Article VII of the Merger Agreement not being fulfilled.
(b) Each Shareholder hereby covenants and agrees that, except as
contemplated by this Agreement and the Merger Agreement, it shall not (i)
offer to transfer (which term shall include, without limitation, any sale,
tender, gift, pledge, assignment or other disposition), transfer or consent
to any transfer of, any or all of the Shares beneficially
owned by such Shareholder or any interest therein without the prior written
consent of the Company, (ii) enter into any contract, option or other
agreement or understanding with respect to any transfer of any or all of
such Shares or any interest therein, (iii) grant any proxy, power-of-
attorney or other authorization or consent in or with respect to such
Shares, (iv) deposit such Shares into a voting trust or enter into a voting
agreement or arrangement with respect to such Shares or (v) take any other
action that would make any representation or warranty of such Shareholder
contained herein untrue or incorrect in any material respect or in any way
restrict, limit or interfere in any material respect with the performance
of its obligations hereunder or the transactions contemplated hereby or by
the Merger Agreement; provided, however, any Shareholder may take any
action prohibited by Subsections 2(b)(i), (ii), (iii) or (iv) hereof, so
long as the transferee of the Shares or rights agrees to take the Shares or
rights subject to the terms of this Agreement and the Shareholder promptly
notifies the Company in writing of such transfer.
(c) Subject to Section 6, each Shareholder hereby agrees that such
Shareholder shall not, directly or indirectly, encourage, solicit, initiate
or participate in any way in any discussions or negotiations with, or
provide any information to, or afford any access to the properties, books
or records of the Seller or any Seller Subsidiaries to, or otherwise take
any other action to assist or facilitate, any person or group (other than
the Company or any affiliate or associate of the Company) concerning any
Competing Proposal. Upon execution of this Agreement, each Shareholder
will immediately cease any existing activities, discussions or negotiations
conducted heretofore with respect to any Competing Proposal. Each
Shareholder will immediately communicate to the Company the terms of any
Competing Proposal (or any discussion, negotiation or inquiry with respect
thereto) and the identity of the person making such Competing Proposal or
inquiry which it may receive; provided, however, any Shareholder, to the
extent such Shareholder is a director or officer of Seller, may exercise
his or her fiduciary duties as an officer or director of the Seller
pursuant to Section 4.4 of the Merger Agreement.
(d) Subject to the terms and conditions of this Agreement, each of
the parties hereto agrees to use all reasonable efforts to take, or cause
to be taken, all actions, and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws to consummate and make
effective the transactions contemplated by this Agreement, subject to the
proviso contained in Subsection 2(c) above. Each party shall promptly
consult with the other and provide any necessary information and material
with respect to all filings made by such party with any Governmental
Authority in connection with this Agreement and the transactions
contemplated hereby.
(e) Each Shareholder hereby waives any rights of appraisal or rights
to dissent from the Merger that it may have.
3. Representations and Warranties of Each Shareholder. Each Shareholder
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hereby represents and warrants, severally and not jointly, to the Company as
follows:
(a) Such Shareholder is the record and beneficial owner of the Shares
set forth opposite its name on Schedule I. Such Shares constitute all of
the shares owned of record
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or beneficially owned by such Shareholder on December 31, 2000. Except as
set forth in Schedule I, such Shareholder has sole voting power and sole
power to issue instructions with respect to the matters set forth in
Section 2 hereof, sole power of disposition, sole power to demand and waive
appraisal rights and sole power to agree to all of the matters set forth in
this Agreement, in each case with respect to all of such Shares with no
limitations, qualifications or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement.
(b) Such Shareholder has the power and authority to enter into and
perform all of such Shareholder's obligations under this Agreement. This
Agreement has been duly and validly executed and delivered by such
Shareholder and constitutes a legal, valid and binding agreement of such
Shareholder, enforceable against such Shareholder in accordance with its
terms. Except as set forth in Schedule I, there is no beneficiary or
holder of a voting trust certificate or other interest of any trust of
which such Shareholder is a trustee, or any party to any other agreement of
arrangement, whose consent is required for the execution and delivery of
this Agreement or the consummation by such Shareholder of the transactions
contemplated thereby.
(c) Except for filings under the Exchange Act (i) no filing with, and
no permit, authorization, consent or approval of, any Governmental
Authority is necessary for the execution and delivery of this Agreement by
such Shareholder, the consummation by such Shareholder of the transactions
contemplated hereby and the compliance by such Shareholder with the
provisions hereof and (ii) none of the execution and delivery of this
Agreement by such Shareholder, the consummation by such Shareholder of the
transactions contemplated hereby or compliance by such Shareholder with any
of the provisions hereof, except in cases in which any conflict, breach,
default or violation described below would not interfere with the ability
of such Shareholder to perform such Shareholder's obligations hereunder,
shall (A) conflict with or result in any breach of any organizational
documents applicable to such Shareholder, (B) result in a violation or
breach of, or constitute (with or without notice or lapse of time or both)
a default (or give rise to any third party right of termination,
cancellation, modification or acceleration) under, any of the terms,
conditions or provisions of any note, loan agreement, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding,
agreement or other instrument or obligation of any kind, including, without
limitation, any voting agreement, proxy arrangement, pledge agreement,
shareholders agreement or voting trust, to which such Shareholder is a
party or by which it or any of its properties or assets may be bound or (C)
violate any order, writ, injunction, decree, judgment, order, statute, rule
or regulation applicable to such Shareholder or any of its properties or
assets.
(d) Except as permitted by this Agreement, the Shares beneficially
owned by such Shareholder and the certificates representing such Shares are
now, and at all times during the term hereof will be, held by such
Shareholder, or by a nominee or custodian for the benefit of such
Shareholder, free and clear of all liens, proxies, voting trusts or
agreements, understandings or arrangements or any other rights whatsoever,
except for any such liens or proxies arising hereunder. The transfer by
such Shareholder of the Shares to the Company in accordance with the terms
of the Merger Agreement shall pass
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to and unconditionally vest in the Company good and valid title to all
Shares, free and clear of all liens, proxies, voting trusts or agreements,
understandings or arrangements or any other rights whatsoever.
(e) No broker, investment banker, financial advisor or other person
is entitled to any broker's, finder's, financial advisor's or other similar
fee or commission in connection with the transactions contemplated hereby
based upon arrangements made by or on behalf of such Shareholder, except as
set forth in the Merger Agreement.
4. Stop Transfer. Each Shareholder shall request that the Seller not
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register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Shares beneficially owned by
such Shareholder, unless such transfer is made in compliance with this
Agreement.
5. Termination. This Agreement shall terminate with respect to any
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Shareholder upon the earliest of (a) the Effective Time, (b) the termination of
the Merger Agreement or (c) December 31, 2001.
6. No Limitation. Notwithstanding any other provision hereof, nothing in
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this Agreement shall be construed to prohibit a Shareholder, or any officer or
affiliate of a Shareholder who is or has designated a member of the Board of
Directors of the Seller or an officer of Seller, from taking any action solely
in his or her capacity as a member of the Board of Directors of the Seller or an
officer of Seller or from exercising his or her fiduciary duties as a member of
such Board of Directors or an officer of Seller to the extent specifically
permitted by the Merger Agreement.
7. Miscellaneous.
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(a) This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes all other
prior agreements and understandings, both written and oral, between the
parties with respect to the subject matter hereof.
(b) This Agreement shall not be assigned by operation of law or
otherwise without the prior written consent of each Shareholder (in the
case of any assignment by the Company) or the Company (in the case of an
assignment by a Shareholder), provided that the Company may assign its
rights and obligations hereunder to any Company Subsidiary, but no such
assignment shall relieve the Company of its obligations hereunder.
(c) Without limiting any other rights the Company may have hereunder
in respect of any transfer of Shares, each Shareholder agrees that this
Agreement and the obligations hereunder shall attach to the Shares
beneficially owned by such Shareholder and shall be binding upon any person
to which legal or beneficial ownership of such Shares shall pass, whether
by operation of law or otherwise, including, without limitation, such
Shareholder's heirs, guardians, administrators or successors.
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(d) This Agreement may not be amended, changed, supplemented or
otherwise modified with respect to a Shareholder except by an instrument in
writing signed on behalf of such Shareholder and the Company.
(e) 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 received if given) by hand delivery or by facsimile
transmission with confirmation of receipt, as follows:
If to a Shareholder:
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At the addresses and facsimile numbers set forth on Schedule I hereto.
With a copy to:
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Xxxxxx Xxxxxxx Xxxxxx & Brand
3300 Xxxxx Fargo Center
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxxxxx
Facsimile: (000) 000-0000
If to the Company:
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Xxxxxxxx & Ilsley Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
With a copy to:
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Xxxxxxx & Xxxx, S.C.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
or to such other address or facsimile number as the person to whom notice
is given may have previously furnished to the others in writing in the
manner set forth above.
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(f) Whenever possible, each provision or portion of any provision of
this Agreement will be interpreted in such manner as to be effective and
valid under applicable law but if any provision or portion of any provision
of this Agreement is held to be invalid, illegal or unenforceable in any
respect under any applicable law or rule in any jurisdiction such
invalidity, illegality or unenforceability will not affect any other
provision or portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such jurisdiction as
if such invalid, illegal or unenforceable provision or portion of any
provision had never been contained herein.
(g) All rights, powers and remedies provided under this Agreement or
otherwise available in respect hereof at law or in equity shall be
cumulative and not alternative, and the exercise of any thereof by any
party shall not preclude the simultaneous or later exercise of any other
such right, power or remedy by such party.
(h) The failure of any party hereto to exercise any right, power or
remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by
such party of its right to exercise any such or other right, power or
remedy or to demand such compliance.
(i) This Agreement shall be binding upon and inure solely to the
benefit of each party hereto, and nothing in this Agreement, express or
implied, is intended to confer upon any other person any rights or remedies
of any nature whatsoever under or by reason of this Agreement.
(j) Except to the extent that the laws of the State of Iowa are
mandatorily applicable to the matters arising under or in connection with
this Agreement, this Agreement shall be governed by, and construed in
accordance with, the laws of the State of Wisconsin.
(k) 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 or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement in any Wisconsin
state court located in the City of Milwaukee or any Federal court located
in the Eastern District of Wisconsin, this being in addition to any other
remedy to which they are entitled at law or in equity. In addition, each
of the parties hereto (A) consents to submit itself to the personal
jurisdiction of any Wisconsin state court located in the City of Milwaukee
or any Federal court located in the Eastern District of Wisconsin in the
event any dispute arises out of this Agreement or any transaction
contemplated by this Agreement, (B) agrees that it will not attempt to deny
or defeat such personal jurisdiction by motion or other request for leave
from any such court and (C) agrees that it will not bring any action
relating to this Agreement or any transaction contemplated by this
Agreement in any court other than any such court. The parties irrevocably
and unconditionally waive
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any objection to the laying of venue of any action, suit or proceeding
arising out of this Agreement or the transactions contemplated hereby in
the courts of the State of Wisconsin located in the City of Milwaukee or in
any Federal court located in the Eastern District of Wisconsin, and hereby
further irrevocably and unconditionally waive and agree not to plead or
claim in any such court that any such action, suit or proceeding brought in
any such court has been brought in a inconvenient forum.
(l) The descriptive headings used herein are inserted for convenience
of reference only and are not intended to be part of or to affect the
meaning or interpretation of this Agreement.
(m) This Agreement may be executed in counterparts (by fax or
otherwise), each of which shall be deemed to be an original, but all of
which, taken together, shall constitute one and the same agreement.
(n) Except as otherwise provided herein, each party shall pay its,
his or her own expenses incurred in connection with this Agreement.
IN WITNESS WHEREOF, the Company and the Shareholders have caused this
Agreement to be duly executed in multiple counterparts as of the day and year
first above written.
XXXXXXXX & XXXXXX CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Chairman of the Board and
Chief Executive Officer
SHAREHOLDERS:
Xxxxxx X. Xxxxxxx Revocable Trust,
amended and restated November 3, 0000
/x/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Trustee
Xxxxx X. Xxxxxxx Revocable Trust,
amended on December 18, 1998
/s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Trustee
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D.I.A. Revocable Trust,
amended and restated on July 15, 1995
/s/ Xxxxxxx Xxxx Xxxxxxx
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Name: Xxxxxxx Xxxx Xxxxxxx
Title: Trustee
Xxxxxx Xxx Xxxxxxx McMurtie Trust
amended and restated on September 14, 1999
/s/ Xxxxxx X. Andreas
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Name: Xxxxxx X. Andreas
Title: Trustee
Xxxxx X. Xxxxxxx Trust,
amended and restated on August 1, 2000
/s/ Xxxxxx X. Andreas
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Name: Xxxxxx X. Andreas
Title: Trustee
SCHEDULE I
Name, Facsimile Number and Address of Number of Shares of Seller Common Stock
Shareholder Beneficially Owned
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Name: Xxxxxx X. Xxxxxxx, as trustee of
the................................... 321,560
Xxxxxx X. Xxxxxxx Revocable Trust,
amended and restated on November 3, 1998
Address: 0000 Xxxx Xxxxx Xxxx. X. #000
Xxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
Name: Xxxxx X. Xxxxxxx, as trustee of
the................................... 499,090
Xxxxx X. Xxxxxxx Revocable Trust,
amended on December 18, 1998
Address: c/o National City
Bancorporation
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Fax: (000) 000-0000
Name: Xxxxxxx Xxxx Xxxxxxx, as trustee
of.................................... 1,686,566
the D.I.A. Revocable Trust, amended
and restated on July 15, 1995
Address: c/o Archer Xxxxxxx Midland
0000 Xxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Name: Xxxxxx X. Andreas, as trustee
of.................................... 605,876
the Xxxxxx Xxx Xxxxxxx McMurtie Trust
amended and restated on September 14,
1999; and as trustee of the Xxxxx X. Xxxxxxx
Trust, amended and restated on August 1, 2000
Address: c/o Archer Xxxxxxx Midland
0000 Xxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
