Exhibit 2(c)
SHAREHOLDER VOTING AGREEMENT
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SHAREHOLDER VOTING AGREEMENT, dated as of November 18, 2001 (the
"Agreement"), among ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ CORPORATION, a Wisconsin corporation (the
"Company") and the persons listed on Schedule I hereto (each a "Shareholder"
and, collectively, the "Shareholders").
R E C I T A L S:
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Company and Richfield State Agency, Inc., a Minnesota corporation
(the "Seller"), are entering into an Agreement and Plan of Merger (the "Merger
Agreement"), which provides, among other things, for the merger of Seller with
and into the Company (the "Merger"), all on the terms and subject to the
conditions set forth in the Merger Agreement; and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, the Company has required that the Shareholders agree, and each
Shareholder has agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
1. Definitions. Terms used and not defined herein, but defined in the
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Merger Agreement, shall have the respective meanings ascribed to them in the
Merger Agreement.
2. Voting.
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(a) Each Shareholder shall, at any meeting of the shareholders
of Seller, however called, or in connection with any written consent of
the shareholders of Seller, vote (or cause to be voted) all Shares then
held of record or beneficially owned by such Shareholder, (i) in favor
of the Merger, the execution and delivery by the Seller of the Merger
Agreement and the approval of the Merger Agreement and the terms
thereof and each of the other actions contemplated by the Merger
Agreement and this Agreement and any actions required in furtherance
thereof and hereof and (ii) against any proposal relating to a
Competing Proposal and against any action or agreement that would
impede, frustrate, prevent or nullify this Agreement, or result in a
breach in any respect of any covenant, representation or warranty or
any other obligation or agreement of the Seller under the Merger
Agreement or which would result in any of the conditions set forth in
Article VII of the Merger Agreement not being fulfilled.
(b) Each Shareholder hereby covenants and agrees that, except
as contemplated by this Agreement and the Merger Agreement, it shall
not (i) offer to transfer (which term shall include, without
limitation, any sale, tender, gift, pledge, assignment or other
disposition), transfer or consent to any transfer of, any or all of the
Shares held of record or beneficially owned by such Shareholder or any
interest therein without the prior written consent of the Company, such
consent not to be unreasonably withheld in the
case of a gift or similar estate planning transaction (it being
understood that the Company may decline to consent to any such transfer
if the person acquiring such Shares does not agree to take such Shares
subject to the terms of this Agreement), (ii) enter into any contract,
option or other agreement or understanding with respect to any transfer
of any or all of such Shares or any interest therein, (iii) grant any
proxy, power-of-attorney or other authorization or consent in or with
respect to such Shares, (iv) deposit such Shares into a voting trust or
enter into a voting agreement or arrangement with respect to such
Shares or (v) take any other action that would make any representation
or warranty of such Shareholder contained herein untrue or incorrect in
any material respect or in any way restrict, limit or interfere in any
material respect with the performance of its obligations hereunder or
the transactions contemplated hereby or by the Merger Agreement.
(c) Subject to Section 6, each Shareholder hereby agrees that
such Shareholder shall not, directly or indirectly, encourage, solicit,
initiate or participate in any way in any discussions or negotiations
with, or provide any information to, or afford any access to the
properties, books or records of the Seller or any Seller Subsidiaries
to, or otherwise take any other action to assist or facilitate, any
person or group (other than the Company or any affiliate or associate
of the Company) concerning any Competing Proposal. Upon execution of
this Agreement, each Shareholder will immediately cease any existing
activities, discussions or negotiations conducted heretofore with
respect to any Competing Proposal. Each Shareholder will immediately
communicate to the Company the terms of any Competing Proposal (or any
discussion, negotiation or inquiry with respect thereto) and the
identity of the person making such Competing Proposal or inquiry which
it may receive.
(d) Subject to the terms and conditions of this Agreement,
each of the parties hereto agrees to use all reasonable efforts to
take, or cause to be taken, all actions, and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws
to consummate and make effective the transactions contemplated by this
Agreement. Each party shall promptly consult with the other and provide
any necessary information and material with respect to all filings made
by such party with any Governmental Authority in connection with this
Agreement and the transactions contemplated hereby.
(e) Each Shareholder hereby waives any rights of appraisal or
rights to dissent from the Merger that it may have.
3. Representations and Warranties of Each Shareholder. Each
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Shareholder hereby represents and warrants, severally and not jointly, to the
Company as follows:
(a) Such Shareholder is the record and beneficial owner of the
Shares set forth opposite its name on Schedule I. Such Shares
constitute all of the shares owned of record or beneficially owned by
such Shareholder on the date hereof. Such Shareholder has sole voting
power and sole power to issue instructions with respect to the matters
set forth in Section 2 hereof, sole power of disposition, sole power to
demand and waive appraisal or dissenter's rights and sole power to
agree to all of the matters set forth in this Agreement, in each case
with respect to all of such Shares with no limitations, qualifications
or
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restrictions on such rights, subject to applicable securities laws and
the terms of this Agreement.
(b) Such Shareholder has the power and authority to enter into
and perform all of such Shareholder's obligations under this Agreement.
This Agreement has been duly and validly executed and delivered by such
Shareholder and constitutes a legal, valid and binding agreement of
such Shareholder, enforceable against such Shareholder in accordance
with its terms. There is no beneficiary or holder of a voting trust
certificate or other interest of any trust of which such Shareholder is
a trustee, or any party to any other agreement or arrangement, whose
consent is required for the execution and delivery of this Agreement or
the consummation by such Shareholder of the transactions contemplated
thereby.
(c)(i) No filing with, and no permit, authorization, consent
or approval of, any Governmental Authority is necessary for the
execution and delivery of this Agreement by such Shareholder, the
consummation by such Shareholder of the transactions contemplated
hereby and the compliance by such Shareholder with the provisions
hereof and (ii) none of the execution and delivery of this Agreement by
such Shareholder, the consummation by such Shareholder of the
transactions contemplated hereby or compliance by such Shareholder with
any of the provisions hereof, except in cases in which any conflict,
breach, default or violation described below would not interfere with
the ability of such Shareholder to perform such Shareholder's
obligations hereunder, shall (A) conflict with or result in any breach
of any organizational documents applicable to such Shareholder, (B)
result in a violation or breach of, or constitute (with or without
notice or lapse of time or both) a default (or give rise to any third
party right of termination, cancellation, modification or acceleration)
under, any of the terms, conditions or provisions of any note, loan
agreement, bond, mortgage, indenture, license, contract, commitment,
arrangement, understanding, agreement or other instrument or obligation
of any kind, including, without limitation, any voting agreement, proxy
arrangement, pledge agreement, shareholders agreement or voting trust,
to which such Shareholder is a party or by which it or any of its
properties or assets may be bound or (C) violate any order, writ,
injunction, decree, judgment, order, statute, rule or regulation
applicable to such Shareholder or any of its properties or assets.
(d) Except as permitted by this Agreement, the Shares held of
record or beneficially owned by such Shareholder and the certificates
representing such Shares are now, and at all times during the term
hereof will be, held by such Shareholder, or by a nominee or custodian
for the benefit of such Shareholder, free and clear of all liens,
proxies, voting trusts or agreements, understandings or arrangements or
any other rights whatsoever, except for any such liens or proxies
arising hereunder.
(e) No broker, investment banker, financial advisor or other
person is entitled to any broker's, finder's, financial advisor's or
other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of
such Shareholder.
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4. Stop Transfer. Each Shareholder shall request that the Seller not
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register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Shares held of record or
beneficially owned by such Shareholder, unless such transfer is made in
compliance with this Agreement.
5. Termination. This Agreement shall terminate with respect to any
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Shareholder upon the earliest of (a) the Effective Time or (b) the termination
of the Merger Agreement.
6. No Limitation. Notwithstanding any other provision hereof, nothing
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in this Agreement shall be construed to prohibit a Shareholder, or any officer
or affiliate of a Shareholder who is or has been designated a member of the
Board of Directors of the Seller, from taking any action solely in his or her
capacity as a member of the Board of Directors of the Seller or from exercising
his or her fiduciary duties as a member of such Board of Directors to the extent
specifically permitted by the Merger Agreement.
7. Miscellaneous.
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(a) This Agreement constitutes the entire agreement between
the parties with respect to the subject matter hereof and supersedes
all other prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
(b) This Agreement shall not be assigned by operation of law
or otherwise without the prior written consent of each Shareholder (in
the case of any assignment by the Company) or the Company (in the case
of an assignment by a Shareholder), provided that the Company may
assign its rights and obligations hereunder to any Company Subsidiary,
but no such assignment shall relieve the Company of its obligations
hereunder.
(c) Without limiting any other rights the Company may have
hereunder in respect of any transfer of Shares, each Shareholder agrees
that this Agreement and the obligations hereunder shall attach to the
Shares held of record or beneficially owned by such Shareholder and
shall be binding upon any person to which record or beneficial
ownership of such Shares shall pass, whether by operation of law or
otherwise, including, without limitation, such Shareholder's heirs,
guardians, administrators or successors.
(d) This Agreement may not be amended, changed, supplemented
or otherwise modified with respect to a Shareholder except by an
instrument in writing signed on behalf of such Shareholder and the
Company.
(e) All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly received if given) by hand delivery
or by facsimile transmission with confirmation of receipt, as follows:
If to a Shareholder:
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At the addresses and facsimile numbers set forth on Schedule I
hereto.
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With a copy to:
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▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.A.
1100 International Centre
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Faxsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Company:
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▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
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▇▇▇▇▇▇▇ & ▇▇▇▇, S.C.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address or facsimile number as the person to whom notice is
given may have previously furnished to the others in writing in the manner set
forth above.
(f) Whenever possible, each provision or portion of any provision of
this Agreement will be interpreted in such manner as to be effective and valid
under applicable law but if any provision or portion of any provision of this
Agreement is held to be invalid, illegal or unenforceable in any respect under
any applicable law or rule in any jurisdiction such invalidity, illegality or
unenforceability will not affect any other provision or portion of any provision
in such jurisdiction, and this Agreement will be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision or portion of any provision had never been contained herein.
(g) All rights, powers and remedies provided under this Agreement or
otherwise available in respect hereof at law or in equity shall be cumulative
and not alternative, and the exercise of any thereof by any party shall not
preclude the simultaneous or later exercise of any other such right, power or
remedy by such party.
(h) The failure of any party hereto to exercise any right, power or
remedy provided under this Agreement or otherwise available in respect hereof at
law or in equity, or to insist upon compliance by any other party hereto with
its obligations hereunder, and any custom or practice of the parties at variance
with the terms hereof,
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shall not constitute a waiver by such party of its right to exercise any such or
other right, power or remedy or to demand such compliance.
(i) Subject to the provisions of Sections 7(b) and 7(c) hereof, this
Agreement shall be binding upon and inure solely to the benefit of each party
hereto, and nothing in this Agreement, express or implied, is intended to confer
upon any other person any rights or remedies of any nature whatsoever under or
by reason of this Agreement.
(j) Except to the extent that the laws of the State of Minnesota are
mandatorily applicable to the matters arising under or in connection with this
Agreement, this Agreement shall be governed by, and construed in accordance
with, the laws of the State of Wisconsin.
(k) 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 or were otherwise breached. It is accordingly agreed
that the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
of this Agreement in any Wisconsin state court located in the City of Milwaukee
or any Federal court located in the Eastern District of Wisconsin, this being in
addition to any other remedy to which they are entitled at law or in equity. In
addition, each of the parties hereto (A) consents to submit itself to the
personal jurisdiction of any Wisconsin state court located in the City of
Milwaukee or any Federal court located in the Eastern District of Wisconsin in
the event any dispute arises out of this Agreement or any transaction
contemplated by this Agreement, (B) agrees that it will not attempt to deny or
defeat such personal jurisdiction by motion or other request for leave from any
such court and (C) agrees that it will not bring any action relating to this
Agreement or any transaction contemplated by this Agreement in any court other
than any such court. The parties irrevocably and unconditionally waive any
objection to the laying of venue of any action, suit or proceeding arising out
of this Agreement or the transactions contemplated hereby in the courts of the
State of Wisconsin located in the City of Milwaukee or in any Federal court
located in the Eastern District of Wisconsin, and hereby further irrevocably and
unconditionally waive and agree not to plead or claim in any such court that any
such action, suit or proceeding brought in any such court has been brought in a
inconvenient forum.
(l) The descriptive headings used herein are inserted for convenience
of reference only and are not intended to be part of or to affect the meaning or
interpretation of this Agreement.
(m) This Agreement may be executed in counterparts (by fax or
otherwise), each of which shall be deemed to be an original, but all of which,
taken together, shall constitute one and the same agreement.
(n) Except as otherwise provided herein, each party shall pay its, his
or her own expenses incurred in connection with this Agreement.
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IN WITNESS WHEREOF, the Company and the Shareholders have caused this
Agreement to be duly executed in multiple counterparts as of the day and year
first above written.
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
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Additional Signature Page to Shareholder Voting Agreement
SHAREHOLDERS:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
GRANTOR RETAINED
ANNUITY TRUST NO. 1 UNDER
AGREEMENT DATED 10/11/01
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Trustee
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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SCHEDULE I
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[Social Security numbers and addresses deleted]
Number of Shares of Seller Common Stock
Name, Facsimile Number and Address of Held of Record or Beneficially
Shareholder Owned
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, as 34,408
trustees of the ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Grantor
Retained Annuity Trust No.1 under agreement
dated 10/11/01
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 3,506
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ 3,228
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 2,819
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 237
Total 44,198
