EXHIBIT 2.2
Execution Copy
VOTING AGREEMENT
dated as of
June 1, 2006
among
FIRST CHARTER CORPORATION
and
THE SHAREHOLDERS NAMED HEREIN
TABLE OF CONTENTS
PAGE
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ARTICLE 1 GRANT OF PROXY; VOTING AGREEMENT............................... 1
1.1 Voting Agreement.................................................. 1
1.2 Irrevocable Proxy................................................. 1
ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS............. 2
2.1 Existence and Power............................................... 2
2.2 Authorization..................................................... 2
2.3 Noncontravention.................................................. 2
2.4 Ownership of Shares............................................... 2
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF BUYER........................ 2
3.1 Corporate Existence and Power..................................... 3
3.2 Corporate Authorization........................................... 3
3.3 Noncontravention.................................................. 3
ARTICLE 4 COVENANTS OF THE SHAREHOLDERS.................................. 3
4.1 No Proxies For or Encumbrances on Shares.......................... 3
4.2 Appraisal Rights.................................................. 3
4.3 Non-Interference.................................................. 3
4.4 Additional Shares................................................. 4
ARTICLE 5 MISCELLANEOUS.................................................. 4
5.1 Amendments; Waivers; Termination.................................. 4
5.2 Successors and Assigns............................................ 4
5.3 Governing Law; Venue; Waiver of Jury Trial; Notice................ 4
5.4 Counterparts; Effectiveness; Third Party Beneficiaries............ 4
5.5 Severability...................................................... 5
5.6 Specific Performance.............................................. 5
5.7 Interpretation.................................................... 5
5.8 Entire Agreement.................................................. 5
VOTING AGREEMENT
VOTING AGREEMENT (this "AGREEMENT") dated as of June 1, 2006 among the
parties set forth on Exhibit A (collectively, the "SHAREHOLDERS"), and First
Charter Corporation, a North Carolina corporation ("BUYER").
WHEREAS, each of the Shareholders is a shareholder of GBC Bancorp, Inc, a
Georgia corporation (the "COMPANY"); and
WHEREAS, in order to induce Buyer to enter into that certain Merger
Agreement of even date herewith (the "MERGER AGREEMENT") between the Company and
Buyer, Buyer has requested that each Shareholder, and each Shareholder has
agreed to, enter into this Agreement.
NOW, THEREFORE, the parties agree as follows:
ARTICLE 1
GRANT OF PROXY; VOTING AGREEMENT
1.1 VOTING AGREEMENT. Each Shareholder hereby agrees that, at any meeting
of the Shareholders of the Company, however called, and at any adjournment
thereof, in any action by written consent of the Shareholders of the Company, or
in any other circumstances upon which such Shareholder's vote, consent or
approval is sought, such Shareholder shall appear at such meeting or otherwise
cause the shares of common stock of GBC Bancorp, Inc owned beneficially by such
Shareholder (for each Shareholder, the "SHARES") to be counted as present for
purposes of calculating a quorum, and each Shareholder shall execute and deliver
to the Company written consents with respect to, or to vote its Shares: (a) in
favor of the approval and adoption of the Merger Agreement (or any amended
version thereof), the Merger and the other transactions contemplated thereby,
(b) against any action or agreement that is or would be reasonably likely to
result in any condition to the Company's obligations or the Buyer's obligations
under the Merger Agreement not being fulfilled and (c) against any Alternative
Proposal.
1.2 IRREVOCABLE PROXY. Each Shareholder hereby revokes any and all previous
proxies granted with respect to its Shares. Each Shareholder hereby grants a
proxy appointing Buyer and each of its designees, and each of them individually,
as such Shareholder's attorney-in-fact and proxy, with full power of
substitution, for and in such Shareholder's name, to vote, express, consent or
dissent, or otherwise to utilize such voting power in the manner contemplated by
Section 1.1 as Buyer or its proxy or substitute shall, in Buyer's sole
discretion, deem proper with respect to its Shares. Each Shareholder hereby
confirms that the proxy granted by such Shareholder pursuant to this Article 1
is, subject to the last sentence of this Section 1.2, irrevocable and is coupled
with an interest, and is granted in consideration of Buyer entering into this
Agreement and the Merger Agreement. If any Shareholder fails for any reason to
consent or vote its Shares in accordance with the requirements of Section 1.1
above (or anticipatorily breaches such section), then Buyer shall have the right
to consent or vote such Shareholder's Shares in accordance with the provisions
of Section 1.1. The proxy granted by each Shareholder shall be revoked upon
termination of this Agreement in accordance with its terms.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
Each Shareholder, severally as to such Shareholder only and not jointly,
represents and warrants to Buyer that:
2.1 EXISTENCE AND POWER. Such Shareholder is an individual and has full
legal capacity, or is a corporation duly incorporated or a limited liability
company or a limited partnership duly organized, validly existing and in good
standing (where applicable) under the laws of its jurisdiction and has all
corporate or partnership powers and all material governmental licenses,
authorizations, permits, consents and approvals required to carry on its
business as now conducted.
2.2 AUTHORIZATION. The execution, delivery and performance by such
Shareholder of this Agreement and the consummation by such Shareholder of the
transactions contemplated to be consummated by such Shareholder hereby are
within such Shareholder's legal capacity (if an individual), or corporate or
limited partnership, as applicable, powers and have, to the extent applicable,
been duly authorized by all necessary corporate or partnership, as applicable,
action on the part of such Shareholder. This Agreement constitutes a valid and
binding Agreement of such Shareholder, enforceable against such Shareholder in
accordance with its terms, (a) except as may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting or relating to
enforcement of creditors' rights generally and (b) subject to general principles
of equity.
2.3 NONCONTRAVENTION. The execution, delivery and performance by such
Shareholder of this Agreement and the consummation by such Shareholder of the
transactions contemplated hereby do not and will not (a) with respect to
entities only, violate the certificate of incorporation or bylaws or limited
partnership agreement, as applicable, of such Shareholder, (b) violate any
applicable law, rule, regulation, judgment, injunction, order or decree or (c)
require any consent or other action by any party that has not been obtained or
taken, or that will not have been obtained or taken when required to been
obtained or taken, under any provision of any agreement or other instrument
binding on such Shareholder.
2.4 OWNERSHIP OF SHARES. Such Shareholder is the record owner of the number
of Shares set forth opposite its name on Exhibit A hereto, free and clear of any
Lien and any other limitation or restriction (including any restriction on the
right to vote or otherwise dispose of any such securities). Except as set forth
herein, none of such Shareholder's Shares is subject to any voting trust or
other agreement or arrangement with respect to the voting of such securities.
Except as set forth on Exhibit A, such Shareholder does not beneficially own any
other capital stock or equity securities of the Company, including any
securities convertible into or exercisable for such capital stock (collectively,
including the Shares, the "COMPANY SECURITIES").
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to the Shareholders:
3.1 CORPORATE EXISTENCE AND POWER. Buyer is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction and has all corporate powers and all material governmental
licenses, authorizations, permits, consents and approvals required to carry on
its business as now conducted.
3.2 CORPORATE AUTHORIZATION. The execution, delivery and performance by
Buyer of this Agreement and the Merger Agreement and the consummation by Buyer
of the transactions contemplated hereby and thereby are within the corporate
powers of Buyer and have been duly authorized by all necessary corporate action.
This Agreement and the Merger Agreement each constitutes a valid and binding
agreement of Buyer, enforceable against Buyer in accordance with its terms, (a)
except as may be limited by bankruptcy, insolvency, moratorium or other similar
laws affecting or relating to enforcement of creditors' rights generally and (b)
subject to general principles of equity.
3.3 NONCONTRAVENTION. The execution, delivery and performance by Buyer of
this Agreement and the Merger Agreement and the consummation by Buyer of the
transactions contemplated hereby and thereby do not and will not (a) violate the
certificate of incorporation or bylaws of Buyer, (b) violate any applicable law,
rule, regulation, judgment, injunction, order or decree or (c) require any
consent or other action by any party that has not been obtained or taken, or
that will not have been obtained or taken when required to been obtained or
taken, under any provision of any agreement or other instrument binding on
Buyer.
ARTICLE 4
COVENANTS OF THE SHAREHOLDERS
Each Shareholder hereby covenants and agrees that:
4.1 NO PROXIES FOR OR ENCUMBRANCES ON SHARES. Except pursuant to the terms
of this Agreement, such Shareholder shall not, without the prior written consent
of Buyer (such consent not to be unreasonably withheld with respect to clause
(b) only), directly or indirectly, (a) grant any proxies or enter into any
voting trust or other agreement or arrangement with respect to the voting of any
of its Shares or (b) acquire, sell, assign, transfer, encumber or otherwise
dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the direct or indirect acquisition or sale,
assignment transfer, encumbrance or other disposition of (collectively, a
"TRANSFER"), any of its Company Securities during the term of this Agreement.
Any Transfer pursuant to which the transferee does not agree to be bound in
writing by this Agreement as if a party hereto shall be null and void.
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4.2 APPRAISAL RIGHTS. Such Shareholder irrevocably waives and agrees not to
exercise any rights (including, without limitation, under Sections 14-2-1301 et
seq. of the GBCC) to demand appraisal of any of its Shares that may arise with
respect to the Merger.
4.3 NON-INTERFERENCE. Such Shareholder agrees that before the termination
of this Agreement, such Shareholder shall not take any action that would make
any representation or warranty of such Shareholder contained herein untrue or
incorrect or have the effect of preventing, impeding, interfering with or
adversely affecting the performance by such Shareholder of its obligations under
this Agreement.
4.4 ADDITIONAL SHARES. Such Shareholder will promptly notify Buyer of any
new Company Securities acquired directly or beneficially by such Shareholder, if
any, after the date hereof and before the termination of this Agreement. Any
such Company Securities shall automatically become subject to the terms of this
Agreement.
ARTICLE 5
MISCELLANEOUS
5.1 AMENDMENTS; WAIVERS; TERMINATION. Any provision of this Agreement may
be amended or waived only if such amendment or waiver is in writing and is
signed, in the case of an amendment, by each party to this Agreement or in the
case of a waiver, by the party against whom the waiver is to be effective. No
failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by law.
This Agreement shall terminate upon the termination of the Merger Agreement in
accordance with its terms.
5.2 SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns; provided that no Shareholder may assign, delegate or
otherwise transfer any of its rights or obligations under this Agreement without
the prior written consent of the Buyer. Any such assignment, delegation or
transfer without such consent is null and void.
5.3 GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL; NOTICE. This Agreement
shall be construed in accordance with and governed by the laws of the State of
North Carolina. The parties hereto agree that any suit, action or proceeding
brought by any party to enforce any provision of, or based on any matter arising
out of or in connection with, this Agreement or the transactions contemplated
hereby shall be brought in any federal or state court located in Charlotte,
North Carolina. THE PARTIES HERETO IRREVOCABLY WAIVE ANY AND ALL RIGHTS TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT. Any
notice to Buyer shall be made as set forth in Section 9.3 of the Merger
Agreement and any notice to any Shareholder shall be made to the address set
forth opposite such Shareholder's name on Exhibit A. Each party agrees that
service of process on such party as provided in the foregoing sentence shall be
deemed effective service of process on such party.
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5.4 COUNTERPARTS; EFFECTIVENESS; THIRD PARTY BENEFICIARIES. This Agreement
may be signed in any number of counterparts (including by fax), each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument. This Agreement shall become effective when
each party hereto shall have signed the Agreement. No provision of this
Agreement is intended to confer upon any party other than the parties hereto any
rights or remedies hereunder.
5.5 SEVERABILITY. If any term, provision or covenant of this Agreement is
held by a court of competent jurisdiction or other authority to be invalid, void
or unenforceable, the remainder of the terms, provisions and covenants of this
Agreement shall remain in full force and effect and shall in no way be affected,
impaired or invalidated.
5.6 SPECIFIC PERFORMANCE. The parties hereto agree that irreparable damage
would occur if any provision of this Agreement is not performed in accordance
with the terms hereof and that the parties shall be entitled to specific
performance of the terms hereof in addition to any other remedy to which they
are entitled at law or in equity.
5.7 INTERPRETATION. Capitalized terms used but not defined herein shall
have the respective meanings set forth in the Merger Agreement. When a reference
is made in this Agreement to Articles, Sections or Exhibits, such reference
shall be to an Article or Section of or Exhibit to this Agreement unless
otherwise indicated. The table of contents and headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Whenever the words "include,"
"includes" or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation."
5.8 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter of this Agreement and
supersedes all prior agreements and understandings, both oral and written,
between the parties with respect to the subject matter of this Agreement.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
FIRST CHARTER CORPORATION
By: /s/ Xxxxxx X. Xxxxx, Xx.
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Name: Xxxxxx X. Xxxxx, Xx.
Title: President and Chief Executive
Officer
/s/ Xxxxx X. Key
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Xxxxx X. Key
/s/ Xxxx X. Xxxxxxx III
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Xxxx X. Xxxxxxx III
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
/s/ X. X. Xxxxx
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X. X. Xxxxx
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
/s/ W. Xxxxx Xxxxx
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W. Xxxxx Xxxxx
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
/s/ J. Xxxxxx Xxxxxx
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J. Xxxxxx Xxxxxx
/s/ Xxxxxxx X. Xxxxxxx, Xx.
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Xxxxxxx X. Xxxxxxx, Xx.
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Xxxxxxx X. Xxx
EXHIBIT A
SHARES
SHAREHOLDER NAME NUMBER OF COMMON SHARES ADDRESS
---------------- ----------------------- -------
XXXXX X. KEY 58,418 0000 XXX XXXXX XXXX
XXXXXX, XXXXXXX 00000
XXXX X. XXXXXXX III 60,510 0000 XXXXX XXXX XXXX
XXXXXXX XXXXXX, XXXXXXX 00000
XXXXX X. XXXXXXX 44,764 0000 XXXXXX XXXX
XXXXXXX, XXXXXXX 00000
XXXXX X. XXXXX 31,700 0000 XXXXXXXXX XXXX
XXXXXXXXXX, XXXXXXX 00000
X. X. XXXXX 23,026 0000 XXXXXX XXXX
XXXXXXXXXX, XXXXXXX 00000
XXXXXXX X. XXXXX 63,643 0000 XXXXXXXX XXXXX
XXXXXXXXX, XXXXXXX 00000
W. XXXXX XXXXX 11,000 000 XXXXXX XXXXX XXXXX
XXXXXXXXXXXXX, XXXXXXX 00000
XXXXXXX X. XXXXXXX 36,500 000 XXXXXXXXXXXX XXXXXXXXX
XXXXXXXXXXXXX, XXXXXXX 00000
XXXXXX X. XXXX 53,813 0000 XXXXXXXX XXXXX
XXXXXXX, XXXXXXX 00000
J. XXXXXX XXXXXX 47,765 0000 XXXXXX XXXX
XXXXXXX, XXXXXXX 00000
XXXXXXX X. XXXXXXX, XX. 49,210 0000 XXXXXXXX XXXXX
XXXXXXX, XXXXXXX 00000
XXXXXXX X. XXX
