Exhibit 2
VOTING AGREEMENT
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This Voting Agreement is entered into on October 23, 2002 (this
"Agreement") by and between Sky Financial Group, Inc., a financial holding
company and an Ohio corporation ("Sky"), and Xxxxxx X. Xxxx, a resident of New
Jersey ("Xxxx") (the "Control Shareholder").
WHEREAS, the Control Shareholder owns 10,769,215 Common Shares, without par
value (the "Common Shares"), of Metropolitan Financial Corp., a savings and loan
holding company and an Ohio corporation ("Metropolitan"), (all shares of such
stock now owned and that may hereafter be acquired by the Control Shareholder
prior to the termination of this Agreement shall be referred to herein as the
"Control Shares");
WHEREAS, Sky and Metropolitan propose to enter into an Agreement and Plan
of Merger, dated as of the date hereof (the "Merger Agreement"), which provides
that Metropolitan will merge with and into Sky pursuant to the Merger (this and
other capitalized terms used and not defined herein shall have the meanings
given to such terms in the Merger Agreement);
WHEREAS, it is a condition to the willingness of Sky to enter into the
Merger Agreement that the Control Shareholder agrees, and in order to induce Sky
to enter into the Merger Agreement, the Control Shareholder has agreed, to enter
into this Agreement; and
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, and intending to be legally bound hereby, the
parties hereby agree as follows:
ARTICLE 1
Voting of Control Shares
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1.1 Voting Agreement. The Control Shareholder hereby agrees that during the
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time this Agreement is in effect, any meeting of the shareholders of
Metropolitan, however called, and in any action by consent of the shareholders
of Metropolitan, he shall vote the Control Shares: (i) in favor of the Merger
and the Merger Agreement (as may be amended from time to time) and (ii) against
any proposal for any recapitalization, merger, sale of assets or other business
combination between Metropolitan and any person or entity other than Sky, or any
other action or agreement that would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of Metropolitan
under the Merger Agreement or that would result in any of the conditions to the
obligations of Metropolitan under the Merger Agreement not being fulfilled.
1.2 Election with Respect to Control Shares. The Control Shareholder hereby
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agrees that he will disclose to the remaining Metropolitan shareholders, no
later than twenty-one (21) days prior to the Effective Date, that he is making a
Mixed Election with respect to all of the Control Shares and the ratio of cash
and Sky Common Shares that the Control Shareholder will elect to receive in
connection with the Merger.
ARTICLE 2
Representations and Warranties
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The Control Shareholder hereby represents and warrants to Sky as follows:
2.1 Authority Relative to this Agreement. He has all necessary power and
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authority or capacity, as the case may be, to execute and deliver this
Agreement, to perform his obligations hereunder and to consummate the
transaction contemplated hereby. This Agreement has been duly and validly
executed and delivered by the Control Shareholder and constitutes a legal, valid
and binding obligation of the Control Shareholder, enforceable against him in
accordance with its terms.
2.2 No Conflict.
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(a) The execution and delivery of this Agreement by the Control
Shareholder do not, and the performance of this Agreement by the Control
Shareholder will not (i) conflict with or violate any law, rule, regulation,
order, judgment or decree applicable to the Control Shareholder or by which the
Control Shares are bound, or (ii) 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 result in the creation of a lien or
encumbrance on any of the Control Shares pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which the Control Shareholder is a party or by which
the Control Shareholder or any Control Shares are bound, except, in the case of
clauses (i) and (ii), for any such conflicts, violations, breaches, defaults or
other occurrences that would not prevent or delay the performance by the Control
Shareholder of his obligations under this Agreement.
(b) The execution and delivery of this Agreement by the Control
Shareholder do not, and the performance of this Agreement by the Control
Shareholder will not, require any consent, approval, authorization or permit of,
or filing with or notification to, any Governmental Authority or Regulatory
Authority.
2.3 Title to the Control Shares. The Control Shareholder is the owner of
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the number and class of Control Shares specified on Exhibit A hereto, free and
clear of all security interests, liens, claims, pledges, options, rights of
first refusal, agreements, limitations on voting rights, charges and other
encumbrances of any nature whatsoever, other than pursuant to (i) that certain
Pledge Agreement, dated October 18, 2000, by Xxxx in favor of Amboy National
Bank, (ii) that certain Pledge Agreement, dated as of September 12, 2002, by
Xxxx in favor of Metropolitan and/or its subsidiary, Metropolitan Bank and Trust
Company, and (iii) that certain Pledge Agreement, dated as of October 15, 2002,
by Xxxx in favor of Sky. The Control Shareholder has not appointed or granted
any proxy, which appointment or grant is still effective, with respect to the
Control Shares. The Control Shareholder has sole voting power with respect to
his Control Shares.
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ARTICLE 3
Miscellaneous
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3.1 Termination. This Agreement shall terminate on the earlier to occur of
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(i) the Effective Date of the Merger and (ii) the date of the termination of the
Merger Agreement.
3.2 Specific Performance. The Control Shareholder agrees that irreparable
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damage would occur in the event any provision of this Agreement was not
performed in accordance with the terms hereof and that Sky shall be entitled to
specific performance of the terms hereof, in addition to any other remedy at law
or in equity.
3.3 Entire Agreement. This Agreement constitutes the entire agreement
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between the parties and supersedes all prior agreements and understandings with
respect to the subject matter hereof.
3.4 Amendment. This Agreement may not be amended except by an instrument in
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writing signed by all the parties hereto.
3.5 Severability. If any term or other provision of this Agreement is
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invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the fullest extent
possible.
3.6 Governing Law. This Agreement shall be governed by and construed in
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accordance with the law of the State of Ohio.
3.7 Counterparts. This Agreement may be executed in counterparts, each of
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which shall be deemed to be an original, but all of which shall constitute one
and the same agreement.
3.8 Assignments. This Agreement shall not be assigned by operation of law
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or otherwise.
3.9 Parties in Interest. This Agreement shall be binding upon and inure
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solely to the benefit of each party hereto, and nothing in this Agreement,
express or implied, is intended to or shall confer upon any person any right,
benefit or remedy of any nature whatsoever under or by reason of this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the day first written above.
CONTROL SHAREHOLDER SKY FINANCIAL GROUP, INC.
By: /s/ Xxxxxx X. Xxxx By /s/ Xxxxx X. Xxxxx
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Xxxxxx X. Xxxx Xxxxx X. Xxxxx
Chairman, President and CEO
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EXHIBIT A
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Name Number of Common Shares
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Common Stock, No Par Value 10,769,215
A-1
