EXHIBIT 2(d)
VOTING AGREEMENT
THIS VOTING AGREEMENT dated as of January 10, 1996 (the
"Agreement") is entered into by and between FIRSTAR CORPORATION, a
Wisconsin corporation ("Firstar"), and ________________________
("Shareholder").
W I T N E S S E T H :
WHEREAS, as of the date hereof, Shareholder and Firstar each own
certain shares of the capital stock of Xxxxx Xxxxxxx Company, a Minnesota
corporation ("JSC"), $100.00 par value ("JSC Common Stock");
WHEREAS, Firstar is contemplating the acquisition of JSC by
means of a merger (the "Merger") of JSC with and into Firstar Corporation
of Minnesota ("Sub"), a wholly-owned subsidiary of Firstar, pursuant to an
Agreement and Plan of Reorganization (the "Reorganization Agreement") and
a related Plan of Merger, each dated as of the date hereof (the "Merger
Agreements");
WHEREAS, Firstar is unwilling to expend the substantial time,
effort and expense necessary to implement the proposed acquisition of JSC,
including applying for and obtaining necessary approvals of federal and
state banking authorities, unless Shareholder enters into this Agreement
with Firstar; and
WHEREAS, Shareholder believes it is in his/her/its best interest
as well as the best interest of JSC for Firstar to consummate the Merger;
and
WHEREAS, this Agreement is created under Section 302A.455 of the
Minnesota Business Corporation Act ("MBCA");
NOW, THEREFORE, in consideration of the covenants and agreements
of the parties herein contained and as an inducement to Firstar to incur
the expenses associated with the Merger and to enter into the Merger
Agreements, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. Definitions. All capitalized terms not otherwise defined
herein are as defined in the Reorganization Agreement.
2. Representations and Warranties. Shareholder represents and
warrants that as of the date hereof shareholder (a) owns beneficially the
number of shares of JSC Common Stock identified below, all of which shares
are free and clear of all liens, pledges, security interests,
claims,encumbrances, options and agreements to sell or otherwise transfer,
except as disclosed in the JSC Disclosure Letter; and (b) has voting power
with respect to such shares.
3. Voting Agreements.
(a) Shareholder shall vote all the shares of JSC Common
Stock he/she/it now beneficially owns or hereafter acquires and over which
Shareholder has voting control (the "Subject Shares") in favor of the
Merger at any meeting of shareholders of JSC called for the purpose of
approving the Merger. Shareholder shall not exercise, and hereby waives,
any and all rights he/she/it has or may have under Sections 302A.471 and
302A.473 (Dissenters' Rights) of the MBCA in connection with the Merger.
Shareholder shall not vote the subject Shares in favor of or consent to
(a) any issuance of stock to any party other than Firstar or its
affiliates; or (b) an acquisition of stock or all or substantially all of
the assets of JSC by any party other than Firstar or its affiliates, prior
to the termination of this Agreement. Shareholder shall not sell, assign,
pledge or otherwise transfer the subject shares to a third party
transferee unless as a condition of such transfer the third party
transferee shall execute a voting agreement in form acceptable to Firstar
(and substantially in the form of this Agreement). Such voting agreement
shall be deemed a supplement to this Agreement to which all shares of JSC
Common Stock then or thereafter acquired by the third party transferee
shall be subject. Shareholder authorizes Firstar to deliver a copy of
this Agreement to JSC to provide notice to JSC of the foregoing
restriction on transfer.
(b) Firstar shall vote all of the shares of JSC Common
Stock it now owns or hereafter acquires and over which Firstar has voting
control in favor of the Merger at any meeting of shareholders of JSC
called for the purpose of approving the Merger.
4. No Ownership Interest. Nothing contained in this Agreement
shall be deemed to vest in Firstar any direct or indirect ownership or
incidence of ownership of or with respect to any shares of JSC Common
Stock. All rights, ownership and economic benefits of and relating to the
shares of JSC Common Stock shall remain and belong to Shareholder, except
as otherwise expressly provided herein or in the Merger Agreements,
Firstar shall have no authority to (i) manage, direct, superintend,
restrict, regulate, govern or administer any of the policies or operations
of JSC; (ii) exercise any power or authority to direct Shareholder in the
voting of any of the shares of JSC Common Stock; or (iii) exercise any
power or authority to direct Shareholder in the performance of his or her
duties or responsibilities as a director or officer of JSC.
5. Evaluation of Investment. Shareholder, by reason of
his/her/its knowledge and experience in financial and business matters or
through serving as an officer or director of a financial institution,
believes himself/herself/itself capable of evaluating the merits and risks
of the investment in common stock of Firstar, $1.25 par value ("Firstar
Common Stock"), contemplated by the Merger Agreements.
6. Documents Delivered. Shareholder acknowledges receipt of
copies of the following documents:
(a) Merger Agreements and all exhibits thereto;
(b) Firstar's 1994 Annual Report (including annual
Report on Form 10-K for the year ended December 31, 1994);
(c) Notice of 1995 Annual Meeting of Stockholders and
Proxy Statement dated March 20, 1995 of Firstar; and
(d) Firstar's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1995.
7. Investment Purpose. Shareholder hereby represents,
warrants and agrees that he/she/it is acquiring the shares of Firstar
Common Stock pursuant to the Merger Agreements solely for his own account,
for investment, and not with a view to the distribution or resale thereof.
8. Amendment and Modification. This Agreement may be amended,
modified or supplemented at any time by the written approval of such
amendment, modification or supplement by JSC, Shareholder and Firstar.
9. Entire Agreement. This Agreement evidences the entire
agreement among the parties hereto with respect to the matters provided
for herein and there are no agreements, representations or warranties with
respect to the matters provided for herein other than those set forth
herein and in the Merger Agreements and their related written agreements.
This Agreement supersedes any agreements among JSC and its stockholders,
concerning the acquisition, disposition or control of the stock of JSC,
except the Investment Agreement between Firstar and JSC.
10. Severability. The parties agree that if any provision of
this Agreement shall under any circumstances be deemed invalid or
inoperative, this Agreement shall be construed with the invalid or
inoperative provisions deleted and the rights and obligations of the
parties shall be construed and enforced accordingly.
11. Counterparts. This Agreement may be executed into two or
more counterparts, each of which shall be deemed an original, but all of
which together shall constitute but one and the same instrument.
12. Governing Law. The validity, construction, enforcement and
effect of this Agreement shall be governed by the internal laws of the
State of Minnesota.
13. Headings. The headings for the paragraphs of this
Agreement are inserted for convenience only and shall not constitute a
part hereof or affect the meaning or interpretation of this Agreement.
14. Successors. This Agreement shall be binding upon and inure
to the benefit of Firstar and its successors and Shareholder and
Shareholder's spouse and their respective executors, personal
representatives, administrators, heirs, legatees, guardians and other
legal representatives. This Agreement shall survive the death or
incapacity of Shareholder. This Agreement may be assigned by Firstar only
to an affiliate of Firstar.
15. Jury Waiver. Each of the parties hereby waives any right
to a trial by jury with respect to any dispute arising out of or relating
to this Agreement.
16. Termination. This Agreement shall terminate at the
earliest to occur of: (a) the Effective Time (as defined in the
Reorganization Agreement); (b) the termination of the Reorganization
Agreement by JSC pursuant to Section 10.01(a)(ii) thereof; (c) the
termination of the Reorganization Agreement by mutual agreement of the
parties; or (d) the expiration of 12 months after termination of the
Reorganization Agreement (other than terminations described in clause (b)
or (c)). Upon termination of this Agreement, no party shall have any
further obligation or liabilities hereunder, provided, that such
termination shall not relieve any party from liability for any breach of
this Agreement prior to such termination.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
FIRSTAR CORPORATION
By: _______________________________________
Title: __________________________
[SHAREHOLDER]
_________________________________
Shares of Xxxxx Xxxxxxx Company
Common Stock owned of record or
otherwise beneficially
Name: ________________________________
