Exhibit B
EXECUTION COPY
VOTING AND SUPPORT AGREEMENT
VOTING AND SUPPORT AGREEMENT, dated March 18, 2004 (this "Agreement"),
between Popular, Inc., a Puerto Rico corporation ("Acquiror"), and the
stockholder named on the signature page (the "Stockholder"). Capitalized terms
used but not defined herein shall have the meanings given to such terms in the
Merger Agreement.
W I T N E S S E T H:
WHEREAS, Quaker City Bancorp, Inc., a Delaware corporation (the
"Company"), and Acquiror are, concurrently with the execution and delivery of
this Agreement, entering into an Agreement and Plan of Merger, dated the date
hereof (as amended or modified from time to time, the "Merger Agreement"),
pursuant to which a direct or indirect wholly owned subsidiary of Acquiror is to
merge with and into the Company (the "Merger"); and
WHEREAS, as of the date hereof, the Stockholder is the record and/or
beneficial owner of the shares of Company Common Stock listed next to the
Stockholder's name on the signature page hereto (the "Existing Shares" and,
together with any shares of Company Common Stock or other voting capital stock
of the Company acquired by Stockholder after the date hereof, the "Shares");
NOW, THEREFORE, in consideration of the foregoing and the
mutual representations, warranties, covenants and agreements set forth herein,
the parties hereto agree as follows:
ARTICLE I
VOTING
1.1 Agreement to Vote. The Stockholder agrees that, from and after the
date hereof and until the date on which this Agreement is terminated pursuant to
Section 4.1, at the Company Meeting or any other meeting of the stockholders of
the Company, however called, or in connection with any written consent of the
stockholders of the Company, the Stockholder shall:
(a) appear at each such meeting or otherwise cause the Shares owned
beneficially or of record by the Stockholder to be counted as present thereat
for purposes of calculating a quorum; and
(b) vote (or cause to be voted), in person or by proxy, or deliver a
written consent (or cause a consent to be delivered) covering, all the Shares,
and any other voting securities of the Company (whenever acquired), that are
owned beneficially or of record by the Stockholder or as to which the
Stockholder has, directly or indirectly, the right to vote or direct the voting,
(i) in favor of adoption of the Merger Agreement and any other action of the
Company's stockholders requested in furtherance thereof, (ii) against any action
or agreement submitted for approval of the stockholders of the
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Company that would reasonably be expected to result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the Company
contained in the Merger Agreement or of the Stockholder contained in this
Agreement, and (iii) against any Acquisition Proposal or any other action,
agreement or transaction submitted for approval to the stockholders of the
Company that is intended, or could reasonably be expected, to materially impede,
interfere or be inconsistent with, delay, postpone, discourage or materially and
adversely affect the Merger or this Agreement, including: (A) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or its Subsidiaries (other than the Merger);
(B) a sale, lease or transfer of a material amount of assets of the Company or
any of its Subsidiaries or a reorganization, recapitalization or liquidation of
the Company or any of its Subsidiaries; (C) a material change in the policies or
management of the Company; (D) an election of new members to the board of
directors of the Company, except where the vote is cast in favor of the nominees
of a majority of the existing directors; (E) any material change in the present
capitalization or dividend policy of the Company or any amendment or other
change to the Certificate of Incorporation or Bylaws of the Company; or (F) any
other material change in the Company's corporate structure or business;
provided, however, that nothing in this Agreement shall prevent any
representative of the Stockholder from discharging his or her fiduciary duties
as a member of the board of directors of the Company.
1.2 No Inconsistent Agreements. The Stockholder hereby covenants and
agrees that, except as provided for in this Agreement and, if applicable, the
agreement specified on the Stockholder's signature page to this Agreement, the
Stockholder (a) has not entered, and the Stockholder shall not enter at any time
while this Agreement remains in effect, into any voting agreement or voting
trust with respect to the Shares owned beneficially or of record by the
Stockholder, and (b) has not granted, and the Stockholder shall not grant at any
time while this Agreement remains in effect, a proxy, a consent or power of
attorney with respect to the Shares owned beneficially or of record by the
Stockholder.
1.3 Proxy. The Stockholder agrees to grant to Acquiror a proxy to vote
the Shares owned beneficially and of record by the Stockholder as indicated in
Section 1.1 above if the Stockholder fails for any reason to vote such Shares in
accordance with Section 1.1. The Stockholder agrees that such a proxy would be
coupled with an interest and irrevocable for so long as this Agreement is in
effect, and the Stockholder will take such further action or execute such other
instruments as may be necessary to effectuate the intent of such proxy.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of the Stockholder. The Stockholder
hereby represents and warrants to Acquiror as follows:
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(a) Authorization; Validity of Agreement; Necessary Action. The
Stockholder has full power and authority to execute and deliver this Agreement,
to perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution, delivery and performance by the Stockholder
of this Agreement and the consummation by it of the transactions contemplated
hereby have been duly and validly authorized by the Stockholder and no other
actions or proceedings on the part of the Stockholder are necessary to authorize
the execution and delivery by it of this Agreement and the consummation by it of
the transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Stockholder and, assuming this Agreement constitutes a valid
and binding obligation of Acquiror, constitutes a valid and binding obligation
of the Stockholder, enforceable against it in accordance with its terms (except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally, or by general equity principles).
(b) Ownership. The Existing Shares listed opposite the name of the
Stockholder on the signature page hereof are, and such Existing Shares and any
additional shares of Company Common Stock acquired by the Stockholder after the
date hereof and prior to the Effective Time will be, owned beneficially and of
record by the Stockholder. As of the date hereof, the number of shares of
Company Common Stock owned by the Stockholder is listed opposite the
Stockholder's name on the signature page hereof. As of the date hereof, the
Existing Shares listed opposite the name of the Stockholder on the signature
page hereof constitute all of the shares of Company Common Stock held of record,
owned by or for which voting power or disposition power is held or shared by the
Stockholder or any of its affiliates (except for the Shares owned beneficially
and of record by any affiliates of the Stockholder that are parties to this
Agreement). Except as may be specified on the Stockholder's signature page to
this Agreement, the Stockholder has and will have at all times through the
Effective Time sole voting power, sole power of disposition, sole power to issue
instructions with respect to the matters set forth in Article I hereof, and sole
power to agree to all of the matters set forth in this Agreement, in each case
with respect to all of the Existing Shares and with respect to all of the Shares
at the Effective Time, with no limitations, qualifications or restrictions on
such rights, subject to applicable federal securities laws and the terms of this
Agreement. Subject to such existing pledges, if any, as may be specified on the
Stockholder's signature page to this Agreement (the "Existing Pledges"), the
Stockholder has good and marketable title to the Existing Shares listed opposite
the name of the Stockholder on the signature page hereof, free and clear of any
Liens and the Stockholder will have good and marketable title to such Existing
Shares and any additional shares of Company Common Stock acquired by the
Stockholder after the date hereof and prior to the Effective Time, free and
clear of any Liens.
(c) No Violation. The execution and delivery of this Agreement by the
Stockholder does not, and the performance by the Stockholder of its obligations
under this Agreement will not, (i) conflict with or violate any law, ordinance
or regulation of any Governmental Authority applicable to the Stockholder or by
which any of its assets or properties is bound, or (ii) conflict with, 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)
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under, or give to others any rights of termination, amendment, acceleration or
cancellation of, or require payment under, or require redemption or repurchase
of or otherwise require the purchase or sale of any securities, or result in the
creation of any Lien on the properties or assets of the Stockholder pursuant to,
any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which the Stockholder is
a party or by which the Stockholder or any of its assets or properties is bound,
except for any of the foregoing as could not reasonably be expected, either
individually or in the aggregate, to materially impair the ability of the
Stockholder to perform its obligations hereunder or to consummate the
transactions contemplated hereby on a timely basis.
(d) Consents and Approvals. The execution and delivery of this
Agreement by the Stockholder does not, and the performance by the Stockholder of
its obligations under this Agreement will not, require the Stockholder to obtain
any consent, approval, authorization or permit of, or to make any filing with or
notification to, any Governmental Authority based on the law, ordinance or
regulation of any applicable Governmental Authority, except for any of the
foregoing as would not reasonably be expected, either individually or in the
aggregate, to materially impair the ability of the Stockholder to perform its
obligations hereunder or to consummate the transactions contemplated hereby on a
timely basis.
(e) Absence of Litigation. There is no suit, action, investigation or
proceeding pending or, to the knowledge of the Stockholder, threatened against
the Stockholder before or by any Governmental Authority that could reasonably be
expected, either individually or in the aggregate, to materially impair the
ability of the Stockholder to perform its obligations hereunder or to consummate
the transactions contemplated hereby on a timely basis.
(f) Absence of Agreements with the Company. Except for, if applicable,
the agreement specified on the Stockholder's signature page to this Agreement,
there are no existing Agreements or arrangements between the Stockholder or any
of its affiliates, on one hand, and the Company or any of its Subsidiaries, on
the other hand, relating to the Shares owned beneficially and of record by the
Stockholder or any other securities of or investment in the Company.
2.2 Representations and Warranties of Acquiror. Acquiror hereby
represents and warrants to the Stockholder as follows:
(a) Organization; Authorization; Validity of Agreement; Necessary
Action. Acquiror is duly organized, validly existing and in good standing under
the laws of Delaware. Acquiror has full corporate power and authority to execute
and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution, delivery and
performance by Acquiror of this Agreement and the consummation by it of the
transactions contemplated hereby have been duly and validly authorized by
Acquiror and no other corporate actions or proceedings on the part of Acquiror
are necessary to authorize the execution and delivery by it of this Agreement
and the consummation by it of the transactions contemplated hereby. This
Agreement has been duly executed and delivered by
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Acquiror and, assuming this Agreement constitutes a valid and binding obligation
of the Stockholder, constitutes a valid and binding obligation of Acquiror,
enforceable against it in accordance with its terms (except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting creditors' rights generally, or by general
equity principles).
(b) No Violation. The execution and delivery of this Agreement by
Acquiror does not, and the performance by Acquiror of its obligations under this
Agreement will not, (i) conflict with or violate the Constitutive Documents of
Acquiror, (ii) conflict with or violate any law, ordinance or regulation of any
Governmental Authority applicable to Acquiror or by which any of its assets or
properties is bound, or (iii) conflict with, 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 require payment under, or require
redemption or repurchase of or otherwise require the purchase or sale of any
securities, or result in the creation of any Lien on the properties or assets of
Acquiror pursuant to, any note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument or obligation to which
Acquiror is a party or by which Acquiror or any of its assets or properties is
bound, except for any of the foregoing as could not reasonably be expected,
either individually or in the aggregate, to materially impair the ability of
Acquiror to perform its obligations hereunder or to consummate the transactions
contemplated hereby on a timely basis.
ARTICLE III
OTHER COVENANTS
3.1 Further Agreements of Stockholder. (a) The Stockholder hereby
agrees, while this Agreement is in effect, and except as expressly contemplated
hereby, not to sell, transfer, pledge, encumber, assign, distribute, gift or
otherwise dispose of (collectively, a "Transfer") or enforce or permit the
execution of the provisions of any redemption, share purchase or sale,
recapitalization or other agreement with the Company or any other person or
enter into any contract, option or other arrangement or understanding with
respect to any Transfer (whether by actual disposition or effective economic
disposition due to hedging, cash settlement or otherwise) of, any of the
Existing Shares owned beneficially and of record by the Stockholder, any Shares
acquired by the Stockholder after the date hereof, any securities exercisable or
exchangeable for or convertible into Company Common Stock, any other capital
stock of the Company or any interest in any of the foregoing with any person.
Notwithstanding the foregoing, (i) the Stockholder may, during the term of this
Agreement, gift, sell or otherwise transfer Shares to (A) a member or members of
a group consisting of the Stockholder's spouse, the Stockholder's issue, the
spouses of the Stockholder's issue or any charitable organization, (B) any trust
or custodian account created for the primary benefit of any one or more of the
Stockholder or the permitted transferees described
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in clause (A) above, or (C) a general partnership, limited partnership, limited
liability company or other business entity, all of the equity interests of which
are held by the Stockholder or the permitted transferees described in clause (A)
above, and (ii) a stockholder who acquired Shares pursuant to this sentence may
transfer such Shares only to the Stockholder from whom, directly or indirectly,
such transferring stockholder acquired said Shares or parties to whom such
transferring stockholder is permitted to transfer such Shares directly pursuant
to this sentence; provided, however, in the case of any Transfer pursuant to
this paragraph, at the time of and as a condition to such Transfer, the
permitted transferee shall provide to Acquiror its written agreement to be bound
by the terms of this Agreement and to perform all of the obligations of the
Stockholder set forth herein as if the permitted transferee had originally
executed and delivered this Agreement to Acquiror.
(b) In case of a stock dividend or distribution, or any change in
Company Common Stock by reason of any stock dividend or distribution, split-up,
recapitalization, combination, exchange of shares or the like, the term "Shares"
shall be deemed to refer to and include the Shares as well as all such stock
dividends and distributions and any securities into which or for which any or
all of the Shares may be changed or exchanged or which are received in such
transaction.
(c) The Stockholder hereby agrees that during the term of this
Agreement it shall not, and shall not permit any of its respective
representatives to, (i) initiate, solicit, encourage or knowingly facilitate,
directly or indirectly, any inquiries or the making of any proposal with respect
to any matter described in Section 3.1(a) or any Acquisition Proposal, (ii)
participate in any negotiations concerning, or provide to any other person any
nonpublic information or data relating to the Company or any of its Subsidiaries
for the purpose of, or have any discussions with, any person relating to, or
cooperate with or assist or participate in, or knowingly facilitate, any
inquiries or the making of any proposal which constitutes, or would reasonably
be expected to lead to, any effort or attempt by any other person to seek to
effect any matter described in Section 3.1(a) or any Acquisition Proposal, or
(iii) agree to or release any person from any obligation under any existing
standstill agreement or arrangement relating to the Company. The Stockholder
agrees immediately to cease and cause to be terminated any existing activities,
discussions or negotiations with any parties conducted heretofore with respect
to any possible Acquisition Proposal, or any matter described in Section 3.1(a),
and the Stockholder will take the necessary steps to inform its respective
representatives of the obligations undertaken by the stockholder pursuant to
this Section 3.1. Nothing contained in this Section 3.1(c) shall prevent any
representative of the Stockholder from discharging his or her fiduciary duties
as a member of the board of directors of the Company.
(d) The Stockholder hereby agrees, while this Agreement is in effect,
to notify Acquiror promptly in writing of (i) the number of any additional
shares of Company Common Stock or other securities of the Company acquired by
the Stockholder, if any, after the date hereof, and (ii) any such inquiries or
proposals that are received by, any such information which is requested from, or
any such negotiations or discussions which are sought to be initiated or
continued with, the Stockholder with respect to any matter described in Section
3.1(a) or (c).
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ARTICLE IV
MISCELLANEOUS
4.1 Termination. Sections 1.1, 1.2, 1.3 and 3.1 of this Agreement, and
any proxy granted pursuant to Section 1.3, shall terminate upon the earlier of
(i) the date on which the Merger Agreement is terminated in accordance with
Article VIII thereof, or (ii) the Effective Time. Nothing in this Section 4.1
shall relieve or otherwise limit any party of liability for breach of this
Agreement.
4.2 Stop Transfer Order. In furtherance of this Agreement, the
Stockholder shall and hereby does authorize and instruct the Company to instruct
its transfer agent to enter a stop transfer order with respect to all of the
Existing Shares owned beneficially and of record by the Stockholder and all
Shares acquired by the Stockholder after the date hereof, except that the
transfer agent shall not stop any Transfer specifically permitted pursuant to
Section 3.1(a).
4.3 Further Assurances. From time to time, at the other party's request
and without further consideration, each party shall execute and deliver such
additional documents and take all such further action as may be reasonably
necessary or desirable to consummate the transactions contemplated by this
Agreement.
4.4 No Ownership Interest. Nothing contained in this Agreement shall be
deemed to vest in Acquiror any direct or indirect ownership or incidence of
ownership of or with respect to any Shares. All rights, ownership and economic
benefits of and relating to the Shares shall remain vested in and belong to the
Stockholder, and Acquiror shall have no authority to manage, direct,
superintend, restrict, regulate, govern or administer any of the policies or
operations of the Company or exercise any power or authority to direct the
Stockholder in the voting of any of the Shares, except as otherwise expressly
provided herein.
4.5 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, telecopied (with
confirmation) or delivered by an overnight courier (with confirmation) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
(a) if to Acquiror to:
Banco Popular North America
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxx, President
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with copies to:
Popular, Inc.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx 000, Xxxxx Xxxxxxxx
Xxxx Xxx, Xxxxxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx-Xxxxxx
Banco Popular North America
000 Xxxxxxxx-00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxx
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
(b) if to Stockholder to the address listed next to the Stockholder's
name on the signature page hereto.
4.6 Interpretation. The words "hereof," "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
Section references are to this Agreement unless otherwise specified. Whenever
the words "include," "includes" or "including" are used in this Agreement, they
shall be deemed to be followed by the words "without limitation." The headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement. No provision of this
Agreement shall be construed to require Acquiror, the Stockholder or any of its
respective Subsidiaries or affiliates to take any action which would violate any
applicable law (whether statutory or common), rule or regulation.
4.7 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that both
parties need not sign the same counterpart.
4.8 Entire Agreement. This Agreement (together with the Merger
Agreement, to the extent referred to herein) constitutes the entire agreement
and supersedes all prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
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4.9 Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware applicable to contracts made
and performed entirely within such State.
4.10 Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
4.11 Enforcement. 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. It is accordingly agreed that the parties
shall be entitled to specific performance of the terms hereof, this being in
addition to any other remedy to which they are entitled at law or in equity.
Each of the parties further agrees to waive any requirements for the securing or
posting of any bond in connection with obtaining any such equitable relief.
4.12 Severability. Any term or provision of this Agreement which is
determined by a court of competent jurisdiction to be invalid or unenforceable
in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent
of such invalidity or unenforceability without rendering invalid or
unenforceable the remaining terms and provisions of this Agreement or affecting
the validity or enforceability of any of the terms or provisions of this
Agreement in any other jurisdiction, and if any provision of this Agreement is
determined to be so broad as to be unenforceable, the provision shall be
interpreted to be only so broad as is enforceable, in all cases so long as
neither the economic nor legal substance of the transactions contemplated hereby
is affected in any manner materially adverse to any party or its stockholders or
limited partners. Upon any such determination, the parties shall negotiate in
good faith in an effort to agree upon a suitable and equitable substitute
provision to effect the original intent of the parties.
4.13 Assignment; Third Party Beneficiaries. Neither this Agreement nor
any of the rights, interests or obligations of any party hereunder shall be
assigned, in whole or in part, by any of the parties hereto (whether by
operation of law or otherwise) without the prior written consent of the other
party. Subject to the preceding sentence, this Agreement will be binding upon,
inure to the benefit of and be enforceable by the parties and their respective
successors and permitted assigns. This Agreement is not intended to confer upon
any person other than the parties hereto any rights or remedies hereunder.
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IN WITNESS WHEREOF, the parties hereto have signed or have caused this
Agreement to be signed by their respective officers or other authorized persons
thereunto duly authorized as of the date first written above.
POPULAR, INC.
By:
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Name:
Title:
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VOTING AND SUPPORT AGREEMENT
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the Stockholder has signed this Agreement as of the
date first written above.
Number of Shares
owned beneficially
and of record:
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Address for notices:
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Signature:
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Name:
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