AGREEMENT GRANTING IRREVOCABLE PROXY
THIS AGREEMENT GRANTING IRREVOCABLE PROXY (the "Agreement") is effective as
of the 20TH day of FEBRUARY, 1997, by and between Xxxx X. Xxxxxxxxxx at 000
XXXXX XXXXX, XXXX XXXXX, XXXXX (hereinafter "Grantor"), and Firstar Bank of
Minnesota, N.A., a national banking association with offices at 000 Xxxx Xxxxx
Xxxxxx, Xx. Xxxx, Xxxxxxxxx (hereinafter "Proxy Holder"),
W I T N E S S E T H:
WHEREAS, Grantor is a stockholder and former employee of Crop Growers
Corporation, a Delaware corporation (the "Corporation"); and
WHEREAS, on September 23, 1996, Grantor and the Corporation entered into a
Separation Agreement which (the "Separation Agreement") included, INTER ALIA, an
agreement by Grantor to grant an irrevocable proxy with respect to his stock in
the Corporation; and
WHEREAS, Firstar Bank of Minnesota, N.A. has agreed to serve as Proxy
Holder for Grantor; and
WHEREAS, Grantor and Proxy Holder desire to reduce to writing the
understanding and agreement of the parties with respect to the irrevocable
proxy;
NOW, THEREFORE, FOR AND IN CONSIDERATION of the mutual covenants and
promises contained herein and other good and valuable consideration, the receipt
and sufficiency of which is hereby duly acknowledged, Grantor and Proxy Holder
agree as follows:
1. IRREVOCABLE PROXY. Concurrent with the execution of this Agreement,
Grantor is granting an irrevocable proxy to Proxy Holder in
the form of Exhibit "A" attached hereto and made a part hereof (the "Proxy").
The certificates representing the shares to which this Proxy applies as of the
date hereof, as well as options to purchase shares, are listed on Exhibit "B,"
attached hereto, which is likewise made part hereof (collectively, the
"Shares"). From the date hereof until the termination of this Agreement, only
Proxy Holder or Proxy Holder's designated proxy may vote the Shares or execute
and deliver consents in respect of any and all matters as to which approval by
or consent of the Corporation's shareholders are sought. From and after the
date hereof until termination of this Agreement, all notices of shareholders
meetings, proxy statements and other related solicitation matters shall be sent
to Proxy Holder and the Corporation shall only recognize votes cast or consents
given by Proxy Holder or Proxy Holder's designated proxy.
2. CHANGES IN COMMON STOCK. In the event that subsequent to the date of
this Agreement Grantor acquires any shares or other securities of the
Corporation or any subsidiary of the Corporation or any other shares are issued
with respect to or in exchange for any of the Shares held by Grantor, by reason
of any stock dividend, stock split, consolidation of shares, reclassification,
consolidation involving the Corporation, all such shares or securities shall be
deemed to be "Shares" for all purposes of this Agreement.
3. APPLICATION OF THIS AGREEMENT TO SHARES TRANSFERRED. This Agreement
and the Proxy pertain only to Shares from time to time owned, beneficially or of
record, by Grantor. Nothing in this Agreement or in the Proxy shall limit the
right of Grantor to gift all or any part of the Shares to a spouse, child or
other relative or to a trust created
for the benefit of any such persons so long as all Shares so gifted shall
continue to be subject to this Agreement and to the Proxy and the transferee so
agrees in a written addendum to this Agreement delivered to Proxy Holder prior
to or promptly following such transfer. Furthermore, except as otherwise
provided in the proviso to this sentence, nothing in this Agreement or in the
Proxy shall limit the right of Grantor to sell, gift, pledge, encumber or
otherwise transfer all or part of the Shares to persons who are not affiliates
of Grantor and with respect to which Grantor retains no beneficial ownership,
and any Shares sold, gifted or otherwise transferred, after September 23, 1996,
the date of the Separation Agreement, to persons other than affiliates, and with
respect to which Grantor retains no beneficial ownership, are expressly excluded
from the scope and application of this Agreement; provided, however, that, prior
to or promptly following any pledge or encumbrance of the Shares, Grantor shall
deliver to Proxy Holder the written agreement of the pledgee of, or holder of an
encumbrance on, such Shares acknowledging that the Proxy Holder has the sole
power to exercise all voting rights respecting such Shares prior to the time
that sole investment power with respect to such Shares becomes vested in a
person other than Grantor or an affiliate of Grantor. Grantor shall give
written notice to Proxy Holder prior to or promptly following any transfer of
Shares stating the number of Shares to be transferred and describing the nature
of such transfer and identifying the transferee if known to Grantor. For the
purposes of this Agreement and the Proxy, the terms "beneficial ownership" and
"investment power" shall have the meanings set forth in Rule 13d-3(a) under the
Securities
Exchange Act of 1934 and the term "affiliate" shall have the meaning set forth
in Rule 405 under the Securities Act of 1933.
4. RESPONSIBILITIES OF PROXY HOLDER. In voting the Shares, Proxy Holder
agrees to exercise and discharge in good faith the voting power granted by the
Proxy consistent with how a reasonably prudent shareholder having a similar
level of stock ownership would exercise and discharge such voting power. In
exercising the Proxy, Proxy Holder shall not be responsible for ascertaining, or
voting in accordance with, the intentions or desires of Grantor or any other
persons, but subject to the immediately preceding sentence hereof, shall
exercise the Proxy in its sole and absolute discretion. Proxy Holder shall
incur no liability or responsibility by reason of any error in law, mistake of
judgment or any matter or thing done or suffered or admitted to be done in
connection with exercising such power except for its own gross negligence or
willful misconduct. Proxy Holder shall not be responsible for the custody of
the Shares or the certificates or other written evidence representing the
Shares. Proxy Holder's sole responsibility under this Agreement shall be to
vote the Proxy granted hereby in conformance with the standard established by
this Section 4 and rules of the Comptroller of the Currency governing the
fiduciary relationship created hereby (12 C.F.R. Part 9). Proxy Holder may, in
connection with discharging its responsibilities under this Agreement, employ,
upon such terms as Proxy Holder may reasonably approve, an investment advisor to
provide investment advice with respect to matters relating to the voting of the
Shares and the Proxy Holder may act without independent investigation upon the
recommendations of such investment advisor.
5. RESPONSIBILITIES OF GRANTOR. Grantor expressly covenants and agrees
that he will not contact or in any way attempt to influence Proxy Holder's
decision on how to vote the Shares nor will Grantor have any independent contact
with Proxy Holder or his representatives, save and except contact related to the
sale or transfer of any Shares.
6. COMPENSATION TO PROXY HOLDER. In exchange for Proxy Holder's
agreement to accept, and act upon, the Proxy granted by Grantor, Proxy Holder
shall be compensated by the Corporation and Grantor pursuant to a separate fee
agreement with the Corporation.
7. LIABILITY AND INDEMNIFICATION. Proxy Holder shall not be liable to
any person with respect to any action taken or omitted to be taken by the Proxy
Holder pursuant to this Agreement and the Proxy or any matter arising out of or
in connection with this Agreement and the Proxy except to the extent that, with
respect to claims or actions asserted or initiated against Proxy Holder by such
person, a court having competent jurisdiction shall have determined by final
judgment (not subject to further appeal) that such liability resulted from the
gross negligence or wilful misconduct of Proxy Holder. Grantor shall indemnify
and hold harmless and reimburse Proxy Holder, its affiliates and their
respective directors, officers, employees and agents from, against and for any
and all losses, liabilities, claims, damages and expenses, including, without
limitation, reasonable attorneys' fees and disbursements, arising out of or in
connection with this Agreement or the Proxy, including any amount paid in
settlement of any litigation or other action (commenced or threatened) to which
Grantor shall have consented in writing (such consent not to be unreasonably
withheld); provided, however, that Grantor shall not be liable hereunder in
respect
of any loss, liability, claim, damage or expense to the extent that a court
having competent jurisdiction shall have determined by final judgment (not
subject to further appeal) that such loss, liability, claim, damage or expense
resulted from the gross negligence or wilful misconduct of Proxy Holder.
8. TERMINATION. This Agreement shall remain in effect until the earliest
of:
(i) The acquittal of Grantor of the criminal charges brought against
Grantor in the Indictment filed against Grantor in the United States District
Court for the District of Columbia being cause number CR 96-0181 on the docket
of said court and in the Indictment filed against Grantor in the United States
District Court Eastern District of Louisiana being criminal docket number 96-198
(the "Indictments"); or
(ii) The withdrawal or dismissal of those criminal charges referenced
in the Indictments (without any plea arrangement or plea bargain entered into by
Grantor); or
(iii) The expiration or termination of any period of suspension or
debarment imposed by the FCIC pursuant to 7 C.F.R. Section 3017.320(a)(i); or
(iv) The sale or disposition of all or substantially all of the
property, assets or business of the Corporation to a third party in a
transaction in which the shares of the Corporation are not exchanged for shares
of the third party; or
(v) The merger of the Corporation with any other person or entity
(wherein the Corporation is not the surviving entity) as a result of which
shares held by Grantor upon the effective date of such merger
represent less than five percent (5%) of all outstanding shares of the common
stock of the entity which is created by virtue of the merger; or
(vi) Death of Grantor.
Following the occurrence of any of these events, either Grantor or the
Corporation will promptly notify Proxy Holder of the same.
9. SUCCESSORS. Proxy Holder may resign its appointment hereunder by
mailing to Grantor at his last known address, with a copy concurrently furnished
to the Corporation, a resignation in writing, which resignation may not be
effective until the receipt by the successor Proxy Holder of any necessary
approvals by the Insurance Commissioners of the States of Kansas and North
Dakota or any other regulatory body of competent jurisdiction relating to the
appointment of a successor Proxy Holder. Upon the Proxy Holder's resignation,
Grantor shall promptly appoint a successor Proxy Holder, subject to the consent
of any applicable regulatory body.
10. MISCELLANEOUS PROVISIONS.
a. All of the covenants and agreements contained in this Agreement
shall be binding upon the parties hereto, and inure to the benefit of the
Grantor, Proxy Holder and (except with respect to the obligations of Proxy
Holder under Section 4 of this Agreement) the Corporation and their successors,
assigns, heirs, executors, administrators and other legal representatives, as
the case may be, and no other person shall be deemed a third party beneficiary
of this Agreement.
b. This Agreement, and the rights of the parties hereto, shall be
governed by and construed in accordance with the laws of the
State of Delaware, without giving effect to the conflict of law provisions
thereof.
c. If any provision of this Agreement shall be declared void and
unenforceable by any court or any administrative board of competent
jurisdiction, such provisions shall be deemed to have been severed for the
remainder of this Agreement, and this Agreement shall continue in all respects
to be valid and enforceable.
d. No waivers of any breach of this Agreement extended by any party
hereto to any other party shall be construed as a waiver of any rights or
remedies of any other party hereto or with respect to any subsequent breach.
e. Wherever the context of this Agreement shall so require, the use
of the singular shall include the plural, and the use of any gender shall
include all genders.
f. If this Agreement is amended in any way, Grantor and Proxy Holder
agree to provide to the Corporation, upon execution, copies of such amendment
and any amendments to the Proxy granted pursuant hereto. Grantor and Proxy
Holder understand and agree that all amendments to this Agreement are subject to
applicable regulatory approval.
g. This Agreement contains the entire agreement among the parties
hereto with respect to the voting of the Shares pursuant to the Proxy and
supersede all prior agreements and understandings among the parties relating to
the subject matter hereof but does not supersede the separate fee agreement
referred to in Section 6 of this Agreement. The Proxy Holder is not a party to
nor is it responsible in any manner for compliance by any party with the terms
of the Separation Agreement.
h. Any recitations of fact contained herein are not to be deemed
representations or warranties of Proxy Holder, and Proxy Holder shall not be
deemed to make any representation or warranty of any nature respecting this
Agreement or the Proxy.
IN WITNESS WHEREOF, Grantor and Proxy Holder have executed this Agreement
as of the date first written above.
/s/ Xxxx X. Xxxxxxxxxx
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GRANTOR
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Firstar Bank of Minnesota, N.A.
By /s/ Xxxxx X. Xxxxxxxxx, V.P.
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By
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In consideration of the Grantor and Proxy Holder entering into the
foregoing agreement, the undersigned agrees to be bound by the provisions
contained in the last sentence of paragraph 1 and 8.
CROP GROWERS CORPORATION
By /s/ X.X. Xxxxxxxx
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IRREVOCABLE PROXY
Pursuant to the provisions of Section 212 of the General Corporation Law of
the State of Delaware, the undersigned hereby irrevocably appoints Firstar Bank
of Minnesota, N.A. as his attorney and proxy, to attend meetings, to vote in
person or by proxy, and to execute and deliver written proxies or consents (or
withhold written consents or the power to vote pursuant to this proxy) with
respect to all shares of capital stock (the "Shares") of CROP GROWERS
CORPORATION (the "Corporation") now owned or hereafter acquired by the
undersigned, to the same extent as if it was the absolute owner of such Shares
in its own right. Without limiting the generality of the foregoing, Firstar
Bank of Minnesota, N.A is specifically authorized in the exercise of its sole
and absolute discretion in respect of the Shares to vote for or consent to
(a) The election of directors of the Corporation;
(b) Any increase, reduction or reclassification of the capital stock
of the Corporation;
(c) Any changes or amendments in or to the certificate of
incorporation or the Bylaws of the Corporation;
(d) The sale or disposal in any manner of any part or parts of the
property, assets or business of the Corporation; and
(e) The sale or disposal in any manner of all or any substantial part
of the property, assets or business of the Corporation and any
merger, consolidation or dissolution of the Corporation.
This proxy applies only to Shares of the Corporation beneficially owned by
the undersigned as of the record date for determination of shareholders of
record of the Corporation, fixed in accordance with the Corporation's Bylaws.
This proxy is made pursuant to an Agreement Granting Irrevocable Proxy,
dated FEB. 20, 1997, between the undersigned and Firstar Bank of Minnesota, N.A
(the "Agreement") and shall extend to all "Shares" as defined in the Agreement.
The undersigned hereby affirms that his proxy is given as an integral part of
the Agreement and as such is coupled with an interest and is, until termination
of said Agreement, irrevocable.
This proxy shall terminate on termination of said Agreement.
Dated: February 20, 1997 By /s/ Xxxx X. Xxxxxxxxxx
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