CONTRIBUTION AND VOTING AGREEMENT
Exhibit
3
This
Contribution and Voting Agreement, is dated as of October 14, 2010 (this “Agreement”), between
Fenist, LLC, an Ohio limited liability company (“Parent”), and
[ ] (the “Contributing
Shareholder”).
WHEREAS,
on August 10, 2010, Parent, Fenist Acquisition Sub, Inc., an Ohio corporation
and a wholly owned subsidiary of Parent (“Merger Sub”), and
Bancinsurance Corporation, an Ohio corporation (the “Company”), entered
into an Agreement and Plan of Merger (the “Merger Agreement”)
pursuant to which Merger Sub will merge with and into the Company (the “Merger”);
WHEREAS,
the Contributing Shareholder is a member of Parent and is party to the Amended
and Restated Limited Liability Company Operating Agreement of Parent dated as of
October 14, 2010, (the Operating
Agreement”);
WHEREAS,
as of the date hereof, the Contributing Shareholder beneficially owns
[ ] shares of common stock of the Company, no par value (the
“Common Stock”)
(such shares, together with all shares of Common Stock that the Contributing
Shareholder acquires beneficial ownership of after the date hereof are sometimes
referred to in this Agreement as the “Owned Shares”);
and
WHEREAS,
in exchange for his membership interests in Parent, the Contributing Shareholder
has, among other things, agreed to contribute the Owned Shares to
Parent;
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements herein contained, and intending to be legally bound hereby, Parent
and the Contributing Shareholder hereby agree as follows:
15. Voting of
Shares.
(a) Voting. The
Contributing Shareholder covenants and agrees that it shall, and shall cause any
other holder of record of the Owned Shares beneficially owed by it to, at any
meeting of the shareholders of the Company (whether annual or special and
whether or not an adjourned or postponed meeting) or in any other circumstances
upon which a vote, written consent or other approval of the shareholders of the
Company is sought: (i) cause the Owned Shares to be counted as
present for the purpose of establishing a quorum, (ii) vote (or cause to be
voted) all the Owned Shares in favor of the approval of the Merger, adoption of
the Merger Agreement, and any other matter that could reasonably be expected to
facilitate consummation of the Merger and the other transactions contemplated by
the Merger Agreement, and (iii) vote (or cause to be voted) all the Owned Shares
against any matter that could reasonably be expected to hinder, oppose, impede,
thwart or delay the consummation of the Merger. Except as set forth
in this Section 1, the Contributing Shareholder shall not be restricted from
voting in favor of, against or abstaining with respect to any matter presented
to the shareholders of the Company. In addition, nothing in this
Agreement shall limit the right of the Contributing Shareholder to vote any
Owned Shares in connection with the election of directors.
(b) Irrevocable
Proxy. (i) The Contributing Shareholder hereby
irrevocably grants to and appoints, and hereby authorizes and empowers, Parent,
and any individual designated in writing by Parent, and each of them
individually, as the Contributing Shareholder’s sole and exclusive proxy and
attorney-in-fact (with full power of substitution and resubstitution), for and
in the Contributing Shareholder’s name, place and stead, to vote and exercise
all voting and related rights (to the fullest extent that the Contributing
Shareholder is entitled to do so) with respect to the Owned Shares at any
meeting of the shareholders of the Company called, and in every written consent
in lieu of such meeting, with respect to any of the matters specified in, and in
accordance and consistent with, this Section 1. The Contributing
Shareholder may vote the Owned Shares on all other matters not contemplated by
this Section 1.
(ii) Upon the execution of this
Agreement by the Contributing Shareholder, the Contributing Shareholder hereby
revokes any and all prior proxies or powers of attorney given by the
Contributing Shareholder with respect to the Owned Shares. The Contributing
Shareholder acknowledges and agrees that no subsequent proxies with respect to
the Owned Shares shall be given, and if given, shall not be effective. All
authority conferred herein shall be binding upon and enforceable against any
successors or assigns of the Contributing Shareholder and any transferees of the
Owned Shares. Notwithstanding any other provisions of this Agreement, the
irrevocable proxy granted hereunder shall automatically terminate upon the
termination of this Agreement pursuant to Section 3.
16. Contribution. Subject
to the conditions set forth herein, the Contributing Shareholder agrees to
contribute and deliver to Parent all of the Owned Shares (the “Contribution
Commitment”) immediately prior to the Effective Time of the Merger (as
such term is defined in the Merger Agreement). The obligation of the
Contributing Shareholder to transfer, contribute and deliver the Contribution
Commitment is subject to (a) the terms of this Agreement and (b) the
satisfaction or waiver of all conditions precedent to Parent’s and Merger Sub’s
obligations to effect the closing of the Merger. In the event that
any Contribution Commitment is transferred, contributed and delivered to Parent
and the closing of the Merger does not occur promptly thereafter, Parent will
return such Contribution Commitment to the Contributing as set forth in the
operating agreement of Parent as is then in effect.
17. Termination. This
Agreement shall terminate upon the earliest of (a) the consummation of the
Merger, (b) the termination of the Merger Agreement in accordance with its
terms and (c) written notice of termination of this Agreement by Parent to the
Contributing Shareholder; provided that nothing herein shall relieve any party
hereto from liability for any breach of this Agreement prior to any such
termination.
18. Representations and
Warranties.
(a) Representations and
Warranties of Parent. Parent hereby represents and warrants
to the Contributing Shareholder that Parent has all requisite power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. Parent is duly organized as a limited liability
company and is in good standing under the laws of the State of
Ohio. The execution and delivery by Parent of this Agreement and the
consummation by Parent of the transactions contemplated hereby have been duly
authorized. This Agreement, when duly executed and delivered by
Parent will constitute a legal, valid and binding obligation of Parent,
enforceable against Parent in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar laws affecting the enforcement
of creditors’ rights generally and general equitable principles whether in a
proceeding in equity or at law.
(b) Representations and
Warranties of the Contributing Shareholder. The Contributing
Shareholder hereby represents and warrants to Parent that the Contributing
Shareholder has good, valid and marketable title to the Owned Shares, free and
clear of all liens, claims and encumbrances, with full legal right and power to
transfer and convey absolute ownership of the Owned Shares to Parent, and upon
delivery, transfer and assignment of the certificate or certificates
representing the Owned Shares, Parent will obtain good, transferable title to
the Owned Shares free and clear of all liens, claims and encumbrances
whatsoever.
(c) No Inconsistent
Agreements. The Contributing Shareholder hereby covenants and
agrees that he (a) has not entered into, and shall not enter into, any voting
agreement or voting trust, with respect to the Owned Shares, (b) has not
granted, and shall not grant, a proxy or power of attorney with respect to the
Owned Shares that is inconsistent with his obligations pursuant to this
Agreement and (c) has not entered into, and shall not enter into, any agreement
or undertaking that is otherwise inconsistent with his obligations pursuant to
this Agreement.
19. Certain Covenants of the
Contributing Shareholder. Except in accordance with the terms
of this Agreement, the Contributing Shareholder hereby covenants and agrees as
follows:
(a) Restriction on Transfer and
Non-Interference. The Contributing Shareholder hereby agrees,
except as expressly contemplated by this Agreement, not to (i) sell, transfer,
pledge, encumber, assign or otherwise dispose of, or enter into any contract,
option or other arrangement or understanding with respect to the sale, transfer,
pledge, encumbrance, assignment or other disposition of, any of the Owned Shares
or (ii) knowingly take any action that would make any representation or warranty
of the Contributing Shareholder contained herein untrue or incorrect or have the
effect of preventing or disabling the Contributing Shareholder from performing
his obligations under this Agreement.
(b) Certain
Notifications. The Contributing Shareholder agrees, while this
Agreement is in effect, to promptly notify Parent of the number of any new
shares of Common Stock acquired by the Contributing Shareholder after the date
hereof.
20. Transfer Agent
Instructions. The Contributing Shareholder shall coordinate
with the Company to credit the Owned Shares to one or more balance accounts at
DTC or the Company’s transfer agent, as specified by Parent. The
Contributing Shareholder shall provide all such documents, instruments and
information as the Company, DTC or the transfer agent reasonably requests to
effect the transfer of the Owned Shares.
21. Survival. The
representations and warranties of Parent and the Contributing Shareholder made
in Section 4 and the agreement and the covenant set forth in this Section 7
shall survive the termination of this Agreement.
22. Successors and
Assigns. Neither party may assign this Agreement or any rights
or obligations hereunder without the prior written consent of the other
party. Subject to the preceding, this Agreement shall be binding
upon, inure to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns.
23. Severability. The
parties hereto agree that the provisions of this Agreement are severable and, in
the event that any court of competent jurisdiction or governmental agency having
jurisdiction shall determine that any of the covenants, agreements, terms or
other provisions herein contained are invalid or illegal, the validity and
enforceability of the remaining covenants, agreements, terms or conditions shall
not be affected thereby and the portion determined to be invalid or illegal
shall be deemed not to be a part of this Agreement.
24. Entire Agreement;
Amendments. This Agreement supersedes all other prior oral or
written agreements between the Contributing Shareholder and Parent and their
respective affiliates and persons acting on their behalf with respect to the
matters discussed herein, and except for the operating agreement of Parent, this
Agreement contains the entire understanding of the parties with respect to the
matters covered herein and, except as specifically set forth herein, neither
parent nor the Contributing Shareholder makes any representation, warranty,
covenant or undertaking with respect to such matters. No provision of this
Agreement may be amended, waived, terminated or otherwise modified other than by
an instrument in writing signed by both of the parties hereto. Any
amendment to this Agreement made in conformity with the provisions of this
Section 10 shall be binding on both parties. No provision hereof may
be waived other than by an instrument in writing signed by the party against
whom enforcement is sought.
25. Specific Performance.
The parties hereto agree that irreparable damage would occur in the event any
provision of this Agreement was 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 at law or in equity.
26. Binding
Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and the respective successors, legal
representatives and assigns of each.
27. Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed an
original, but all of which together shall be deemed one and the same
instrument.
28. Applicable
Law. This Agreement shall be governed by the laws of the State
of Ohio, without regard to the choice of law rules thereof.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, Parent and the Contributing Shareholder have executed or caused
to be executed this Agreement as of the date first written
above.
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PARENT:
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FENIST,
LLC
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Name:
▇▇▇▇ ▇. ▇▇▇▇▇
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Its:
Managing Member
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CONTRIBUTING
SHAREHOLDER:
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[
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