EXHIBIT 99.1
------------
VOTING AGREEMENT OF ▇▇▇▇▇▇▇ STOCKHOLDERS
This Voting Agreement (this "Agreement") is entered into as of June 30,
2004 by and among Monmouth Community Bancorp, a corporation organized under the
laws of the State of New Jersey ("Bancorp"), and certain stockholders of ▇▇▇▇▇▇▇
Community Bank, a commercial bank organized under the laws of the State of New
Jersey ( "▇▇▇▇▇▇▇"), named herein (each a "Stockholder" and collectively, the
"Stockholders").
Bancorp and ▇▇▇▇▇▇▇ have entered into an Agreement and Plan of Acquisition
dated June 30, 2004 (the "Combination Agreement") which provides (subject to the
conditions set forth therein) for the acquisition of ▇▇▇▇▇▇▇ by Bancorp (the
"Combination"), and the subsequent merger of ▇▇▇▇▇▇▇ into a national banking
association to be called "Central Jersey Bank, National Association."
Capitalized terms used and not defined below shall have the meanings ascribed to
such terms in the Combination Agreement. For purposes of consummating the
Combination, the Stockholders are entering into this Voting Agreement.
Accordingly, the parties to this Voting Agreement, intending to be legally
bound, agree as follows:
1. Definitions. The following terms shall have the meanings set forth below as
------------
used herein.
"Expiration Date" shall mean the earlier of (i) the date upon which the
Combination Agreement is validly terminated, or (ii) the date upon which the
Combination becomes effective.
A Stockholder shall be deemed to "Own" or to have acquired "Ownership" of
a security if such Stockholder (i) is the record owner of such security, or (ii)
is the "beneficial owner" (within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934, as amended) of such security.
"Person" shall mean any (i) individual, (ii) corporation, limited
liability company, partnership or other entity, or (iii) governmental authority.
"Subject Securities" shall mean (i) all securities of ▇▇▇▇▇▇▇ (including
all shares of ▇▇▇▇▇▇▇ Common Stock, ▇▇▇▇▇▇▇ Stock Options, and all other
options, warrants and other rights to acquire shares of ▇▇▇▇▇▇▇ Common Stock)
Owned by a Stockholder as of the date of this Agreement; and (ii) all additional
securities of ▇▇▇▇▇▇▇ (including all additional shares of ▇▇▇▇▇▇▇ Common Stock,
▇▇▇▇▇▇▇ Stock Options, and all additional options, warrants and other rights to
acquire shares of ▇▇▇▇▇▇▇ Common Stock) of which a Stockholder acquires
Ownership during the period from the date of this Agreement through the
Expiration Date.
A Person shall be deemed to have effected a "Transfer" of a security if
such Person directly or indirectly (i) sells, pledges, encumbers, grants an
option with respect to, transfers or disposes of such security or any interest
in such security, or (ii) enters into an agreement or commitment contemplating
the possible sale of, pledge of, encumbrance of, grant of an option with respect
to, transfer of or disposition of such security or any interest therein.
1
2. Transfer of Subject Securities.
-------------------------------
2.1. Transferee of Subject Securities to be Bound by this Agreement. Each
Stockholder agrees that, during the period from the date of this Voting
Agreement through the Expiration Date, such Stockholder shall not cause or
permit any Transfer of any of the Subject Securities to be effected unless each
Person to which any of such Subject Securities, or any interest in any of such
Subject Securities, is or may be Transferred shall have (a) executed a
counterpart of this Voting Agreement and a proxy in the form attached hereto as
Exhibit A (with such modifications as Bancorp may reasonably request), and (b)
agreed to hold such Subject Securities (or interest in such Subject Securities)
subject to all of the terms and provisions of this Voting Agreement.
2.2. Transfer of Voting Rights. Each Stockholder agrees that, during the
period from the date of this Voting Agreement through the Expiration Date, such
Stockholder shall ensure that (a) none of the Subject Securities is deposited
into a voting trust, and (b) no proxy is granted, and no voting agreement or
similar agreement is entered into, with respect to any of the Subject
Securities.
3. Voting of Shares.
-----------------
3.1. Voting Agreement. Each Stockholder agrees that, during the period
from the date of this Voting Agreement through the Expiration Date:
(a) at any meeting of stockholders of ▇▇▇▇▇▇▇, however called, each
Stockholder shall (unless otherwise directed in writing by Bancorp) cause all
outstanding shares of ▇▇▇▇▇▇▇ Common Stock that are Owned by such Stockholder as
of the record date fixed for such meeting to be voted in favor of the approval
and adoption of the Combination Agreement and the approval of the Combination,
and in favor of each of the other actions contemplated by the Combination
Agreement, and
(b) in the event written consents are solicited or otherwise sought from
stockholders of ▇▇▇▇▇▇▇ with respect to the approval or adoption of the
Combination Agreement, with respect to the approval of the Combination or with
respect to any of the other actions contemplated by the Combination Agreement,
such Stockholder shall (unless otherwise directed in writing by Bancorp) cause
to be executed, with respect to all outstanding shares of ▇▇▇▇▇▇▇ Common Stock
that are Owned by such Stockholder as of the record date fixed for the consent
to the proposed action, a written consent or written consents to such proposed
action.
3.2. Proxy; Further Assurances.
(a) Contemporaneously with the execution of this Voting Agreement (i) each
Stockholder shall deliver to Bancorp a proxy in the form attached to this Voting
Agreement as Exhibit A, which shall be irrevocable to the fullest extent
permitted by law, with respect to the shares referred to therein (the "Proxy"),
and (ii) each Stockholder shall cause to be delivered to Bancorp an additional
proxy (in the form attached hereto as Exhibit A) executed on behalf of the
record owner of any outstanding shares of ▇▇▇▇▇▇▇ Common Stock that are Owned
beneficially
2
(within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as
amended), but not of record, by such Stockholder.
(b) Each Stockholder shall, at his or her own expense, perform such
further acts and execute such further documents and instruments as may
reasonably be required to vest in Bancorp the power to carry out and give effect
to the provisions of this Voting Agreement.
4. Waiver of Appraisal Rights.
---------------------------
Each Stockholder hereby irrevocably and unconditionally waives, and agrees
to cause to be waived and to prevent the exercise of, any rights of appraisal,
any dissenters' rights and any similar rights relating to the Combination or any
related transaction that such Stockholder or any other Person may have by virtue
of the ownership of any outstanding shares of ▇▇▇▇▇▇▇ Common Stock Owned by such
Stockholder.
5. Representations and Warranties of Each Stockholder.
---------------------------------------------------
Each Stockholder, severally and not jointly, hereby represents and
warrants to Bancorp as follows:
5.1. Authorization, Etc. Stockholder has the absolute and unrestricted
right, power, authority and capacity to execute and deliver this Voting
Agreement and the Proxy and to perform his or her obligations hereunder and
thereunder. This Voting Agreement and the Proxy have been duly executed and
delivered by Stockholder and constitute legal, valid and binding obligations of
Stockholder, enforceable against Stockholder in accordance with their terms,
subject to (i) laws of general application relating to bankruptcy, insolvency
and the relief of debtors, and (ii) rules of law governing specific performance,
injunctive relief and other equitable remedies.
5.2. No Conflicts or Consents.
(a) The execution and delivery of this Voting Agreement and the Proxy by
Stockholder do not, and the performance of this Voting Agreement and the Proxy
by Stockholder will not: (i) conflict with or violate any law, rule, regulation,
order, decree or judgment applicable to Stockholder or by which he or she, or
any of his or her properties is or may be bound or affected; or (ii) result in
or constitute (with or without notice or lapse of time) any breach of or default
under, or give to any other Person (with or without notice or lapse of time) any
right of termination, amendment, acceleration or cancellation of, or result
(with or without notice or lapse of time) in the creation of any encumbrance or
restriction on any of the Subject Securities pursuant to, any contract to which
Stockholder is a party or by which Stockholder or any of his or her affiliates
or properties is or may be bound or affected.
(b) The execution and delivery of this Voting Agreement and the Proxy by
Stockholder do not, and the performance of this Voting Agreement and the Proxy
by Stockholder will not, require any consent or approval of any Person.
5.3. Title to Securities. As of the date of this Voting Agreement: (a)
Stockholder holds of record (free and clear of any encumbrances or restrictions)
the number of outstanding
3
shares of ▇▇▇▇▇▇▇ Common Stock set forth next to the heading "Shares Held of
Record" on the signature page hereof; (b) Stockholder holds the Subject
Securities (free and clear of any encumbrances or restrictions) set forth next
to the heading "Options and Other Rights" on the signature page hereof; (c)
Stockholder Owns the additional securities of ▇▇▇▇▇▇▇ set forth next to the
heading "Additional Securities Beneficially Owned" on the signature page hereof;
and (d) Stockholder does not directly or indirectly Own any shares of capital
stock or other securities of ▇▇▇▇▇▇▇, or any option, warrant or other right to
acquire (by purchase, conversion or otherwise) any shares of capital stock or
other securities of ▇▇▇▇▇▇▇, other than the shares and options, warrants and
other rights set forth on the signature page hereof.
5.4. Accuracy of Representations. The representations and warranties
contained in this Voting Agreement are accurate in all respects as of the date
of this Voting Agreement, will be accurate in all respects at all times through
the Expiration Date and will be accurate in all respects as of the date of the
consummation of the Combination as if made on that date.
6. Additional Covenants of Each Stockholder.
-----------------------------------------
6.1. Further Assurances. From time to time and without additional
consideration, each Stockholder shall (at such Stockholder's sole expense)
execute and deliver, or cause to be executed and delivered, such additional
transfers, assignments, endorsements, proxies, consents and other instruments,
and shall (at such Stockholder's sole expense) take such further actions, as
Bancorp may reasonably request for the purpose of carrying out and furthering
the intent of this Voting Agreement.
7. Miscellaneous.
--------------
7.1. Survival of Representations, Warranties and Agreements. All
representations, warranties, covenants and agreements made by each Stockholder
in this Voting Agreement shall expire upon the Expiration Date.
7.2. Indemnification. Each Stockholder, severally and not jointly, shall
hold harmless and indemnify Bancorp and Bancorp's affiliates from and against,
and shall compensate and reimburse Bancorp and Bancorp's affiliates for, any
loss, damage, claim, liability, fee (including any attorney fee), demand, cost
or expense (regardless of whether or not such loss, damage, claim, liability,
fee, demand, cost or expense relates to a third- party claim) that is directly
or indirectly suffered or incurred by Bancorp or any of Bancorp's affiliates, or
to which Bancorp or any of Bancorp's affiliates otherwise becomes subject, and
that arises directly or indirectly from, or relates directly or indirectly to,
(a) any inaccuracy in or breach of any representation or warranty contained in
this Voting Agreement, or (b) any failure on the part of such Stockholder to
observe, perform or abide by, or any other breach of, any restriction, covenant,
obligation or other provision contained in this Voting Agreement or in the
Proxy.
7.3. Expenses. All costs and expenses incurred in connection with the
transactions contemplated by this Voting Agreement shall be paid by the party
incurring such costs and expenses.
7.4. Notices. Any notice or other communication required or permitted to
be delivered to either party under this Voting Agreement shall be in writing and
shall be deemed
4
properly delivered, given and received when delivered (by hand, by registered
mail, by courier or express delivery service or by facsimile) to the address or
facsimile telephone number set forth beneath the name of such party below (or to
such other address or facsimile telephone number as such party shall have
specified in a written notice given to the other party):
(a) If to a Stockholder, at the address set forth below such Stockholder's
signature on the signature page hereof; and
(b) If to Bancorp:
Monmouth Community Bancorp
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairman
and Chief Executive Officer
7.5. Severability. If any provision of this Voting Agreement or any part
of any such provision is held under any circumstances to be invalid or
unenforceable in any jurisdiction, then (a) such provision or part thereof
shall, with respect to such circumstances and in such jurisdiction, be deemed
amended to conform to applicable laws so as to be valid and enforceable to the
fullest possible extent, (b) the invalidity or unenforceability of such
provision or part thereof under such circumstances and in such jurisdiction
shall not affect the validity or enforceability of such provision or part
thereof under any other circumstances or in any other jurisdiction, and (c) the
invalidity or unenforceability of such provision or part thereof shall not
affect the validity or enforceability of the remainder of such provision or the
validity or enforceability of any other provision of this Voting Agreement. Each
provision of this Voting Agreement is separable from every-other provision of
this Voting Agreement, and each part of each provision of this Voting Agreement
is separable from every other part of such provision.
7.6. Entire Agreement. This Voting Agreement, the Proxy and any other
documents delivered by the parties in connection herewith constitute the entire
agreement between the parties with respect to the subject matter hereof and
thereof and supersede all prior agreements and understandings between the
parties with respect thereto. No addition to or modification of any provision of
this Voting Agreement shall be binding upon either party unless made in writing
and signed by both parties.
7.7. Assignment; Binding Effect. Except as provided herein, neither this
Voting Agreement nor any of the interests or obligations hereunder may be
assigned or delegated by any Stockholder and any attempted or purported
assignment or delegation of any of such interests or obligations shall be void.
Subject to the preceding sentence, this Voting Agreement shall be binding upon
each Stockholder and his or her heirs, estate, executors, personal
representatives, successors and assigns, and shall inure to the benefit of
Bancorp and its successors and assigns. Without limiting any of the restrictions
set forth in Section 2 or elsewhere in this Voting Agreement, this Voting
Agreement shall be binding upon any Person to whom any Subject Securities are
transferred. Nothing in this Voting Agreement is intended to confer on any
Person (other than Bancorp and its successors and assigns) any rights or
remedies of any nature.
5
7.8. Specific Performance. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Voting Agreement or the
Proxy was not performed in accordance with its specific terms or was otherwise
breached. Each Stockholder, severally and not jointly, agrees that, in the event
of any breach or threatened breach by a Stockholder of any covenant or
obligation contained in this Voting Agreement or in the Proxy, Bancorp shall be
entitled (in addition to any other remedy that may be available to it, including
monetary damages) to seek and obtain (a) a decree or order of specific
performance to enforce the observance and performance of such covenant or
obligation, and (b) an injunction restraining such breach or threatened breach.
Each Stockholder further agrees that neither Bancorp nor any other Person shall
be required to obtain, furnish or post any bond or similar instrument in
connection with or as a condition to obtaining any remedy referred to in this
Section 7.8, and each Stockholder irrevocably waives any right he or she may
have to require the obtaining, furnishing or posting of any such bond or similar
instrument.
7.9. Non-Exclusivity. The rights and remedies of Bancorp under this Voting
Agreement are not exclusive of or limited by any other rights or remedies which
it may have, whether at law, in equity, by contract or otherwise, all of which
shall be cumulative (and not alternative). Without limiting the generality of
the foregoing, the rights and remedies of Bancorp under this Voting Agreement,
and the obligations and liabilities of each Stockholder under this Voting
Agreement, are in addition to their respective rights, remedies, obligations and
liabilities under common law requirements and under all applicable statutes,
rules and regulations. Nothing in this Voting Agreement shall limit any of such
Stockholder's obligations, or the rights or remedies of Bancorp, under any
Affiliate Agreement between Bancorp and such Stockholder; and nothing in any
such Affiliate Agreement shall limit any of such Stockholder's obligations, or
any of the rights or remedies of Bancorp under this Voting Agreement.
7.10. Governing Law; Venue.
(a) This Voting Agreement and the Proxy shall be construed in accordance
with, and governed in all respects by, the laws of the State of New Jersey
(without giving effect to principles of conflicts of laws).
(b) Any legal action or other legal proceeding relating to this Voting
Agreement or the Proxy or the enforcement of any provision of this Voting
Agreement or the Proxy may be brought or otherwise commenced in any state or
federal court located in the State of New Jersey. Each Stockholder:
(i) expressly and irrevocably consents and submits to the jurisdiction of
each state and federal court located in the State of New Jersey (and each
appellate court located in the State of New Jersey), in connection with
any such legal proceeding;
(ii) agrees that service of any process, summons, notice or document by
U.S. mail addressed to him or her at the address set forth in Section 7.4
shall constitute effective service of such process, summons, notice or
document for purposes of any such legal proceeding;
6
(iii) agrees that each state and federal court located in the State of New
Jersey shall be deemed to be a convenient forum; and
(iv) agrees not to assert (by way of motion, as a defense or otherwise),
in any such legal proceeding commenced in any state or federal court
located in the State of New Jersey, any claim that Stockholder is not
subject personally to the jurisdiction of such court, that such legal
proceeding has been brought in an inconvenient forum, that the venue of
such proceeding is improper, or that this Voting Agreement or the subject
matter of this Voting Agreement may not be enforced in or by such court.
Nothing contained in this Section 7.10 shall be deemed to limit or
otherwise affect the right of Bancorp to commence any legal proceeding or
otherwise proceed against a Stockholder in any other forum or jurisdiction.
7.11. Counterparts. This Voting Agreement may be executed by the parties
in separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute one and the
same instrument.
7.12. Captions. The captions contained in this Voting Agreement are for
convenience of reference only, shall not be deemed to be a part of this Voting
Agreement and shall not be referred to in connection with the construction or
interpretation of this Voting Agreement.
7.13. Attorneys' Fees. If any legal action or other legal proceeding
relating to this Voting Agreement or the enforcement of any provision of this
Voting Agreement is brought against a Stockholder, the prevailing party shall be
entitled to recover reasonable attorneys' fees, costs and disbursements (in
addition to any other relief to which the prevailing party may be entitled).
7.14. Waiver. No failure on the part of Bancorp to exercise any power,
right, privilege or remedy under this Voting Agreement, and no delay on the part
of Bancorp in exercising any power, right, privilege or remedy under this Voting
Agreement, shall operate as a waiver of such power, right, privilege or remedy;
and no single or partial exercise of any such power, right, privilege or remedy
shall preclude any other or further exercise thereof or of any other power,
right, privilege or remedy. Bancorp shall not be deemed to have waived any claim
available to Bancorp arising out of this Voting Agreement, or any power, right,
privilege or remedy of Bancorp under this Voting Agreement, unless the waiver of
such claim, power, right, privilege or remedy is expressly set forth in a
written instrument duly executed and delivered on behalf of Bancorp; and any
such waiver shall not be applicable or have any effect except in the specific
instance in which it is given.
7.15. Construction.
(a) For purposes of this Voting Agreement, whenever the context requires,
(i) the singular number shall include the plural, and vice versa; (ii) the
masculine gender shall include the feminine and neuter genders; (iii) the
feminine gender shall include the masculine and neuter genders; and the neuter
gender shall include masculine and feminine genders.
7
(b) The parties agree that any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be applied
in the construction or interpretation of this Voting Agreement.
(c) As used in this Voting Agreement, the words "include" and "including,"
and variations thereof, shall not be deemed to be terms of limitation, but
rather shall be deemed to be followed by the words "without limitation."
(d) Except as otherwise indicated, all references in this Voting Agreement
to "Sections" and "Exhibits" are intended to refer to Sections of this Voting
Agreement and Exhibits to this Voting Agreement.
8
IN WITNESS WHEREOF, Bancorp and the Stockholders have caused this Voting
Agreement to be executed as of the date first written above.
MONMOUTH COMMUNITY BANCORP
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman and Chief Executive Officer
9
STOCKHOLDERS
Additional
Securities
Shares Held of Options and Beneficially
Signatures Addresses Record Other Rights Owned
---------- --------- ------ ------------ -----
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ 49,193 32,748 2,916
-------------------- ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ 17,885 29,078 N/A
--------------------- ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 38,504 25,849 2,299
----------------------- Sea ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ 25,210 22,179 N/A
---------------------------- ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
/s/ M. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 10,250 22,179 N/A
-------------------- ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
M. ▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ 16,308 81,577 2,310
------------------- ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq. ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ 24,012 22,179 N/A
------------------------ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ 15,018 22,179 N/A
----------------------- ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ 5,649 43,747 N/A
------------------- ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
10
EXHIBIT A - FORM OF IRREVOCABLE PROXY
The undersigned stockholder of ▇▇▇▇▇▇▇ Community Bank, a commercial bank
organized under the laws of the State of New Jersey (together with its
successors, "▇▇▇▇▇▇▇"), hereby irrevocably (to the fullest extent permitted by
law) appoints and constitutes, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ III and
Monmouth Community Bancorp, a New Jersey corporation ("Bancorp"), and each of
them, the attorneys and proxies of the undersigned with full power of
substitution and resubstitution, to the full extent of the undersigned's rights
with respect to (i) the outstanding shares of capital stock of ▇▇▇▇▇▇▇ owned of
record by the undersigned as of the date of this proxy, which shares are
specified on the final page of this proxy, and (ii) any and all other shares of
capital stock of ▇▇▇▇▇▇▇ which the undersigned may acquire on or after the date
hereof. (The shares of the capital stock of ▇▇▇▇▇▇▇ referred to in clauses "(i)"
and "(ii)" of the immediately preceding sentence are collectively referred to as
the "Shares.") Upon the execution hereof, all prior proxies given by the
undersigned with respect to any of the Shares are hereby revoked, and the
undersigned agrees that no subsequent proxies will be given with respect to any
of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted in
connection with the Voting Agreement, dated as of the date hereof, among
Bancorp, the undersigned and certain other stockholders of ▇▇▇▇▇▇▇ (the "Voting
Agreement"), and is granted in consideration of Bancorp entering into the
Agreement and Plan of Acquisition dated June 30, 2004 between Bancorp and
▇▇▇▇▇▇▇ (the "Combination Agreement").
The attorneys and proxies named above will be empowered, and may exercise
this proxy, to vote the Shares at any time until the earlier to occur of the
valid termination of the Combination Agreement or the effective time of the
combination contemplated thereby (the "Combination") at any meeting of the
stockholders of ▇▇▇▇▇▇▇, however called, or in connection with any solicitation
of written consents from stockholders of ▇▇▇▇▇▇▇, in favor of the approval and
adoption of the Combination Agreement and the approval of the Combination, and
in favor of each of the other actions contemplated by the Combination Agreement.
The undersigned may vote the Shares on all other matters.
This proxy shall be binding upon the heirs, estate, executors, personal
representatives, successors and assigns of the undersigned (including any
transferee of any of the Shares).
If any provision of this proxy or any part of any such provision is held
under any circumstances to be invalid or unenforceable in any jurisdiction, then
(a) such provision or part thereof shall, with respect to such circumstances and
in such jurisdiction, be deemed amended to conform to applicable laws so as to
be valid and enforceable to the fullest possible extent, (b) the invalidity or
unenforceability of such provision or part thereof under such circumstances and
in such jurisdiction shall not affect the validity or enforceability of such
provision or part thereof under any other circumstances or in any other
jurisdiction, and (c) the invalidity or unenforceability of such provision or
part thereof shall not affect the validity or enforceability of the remainder of
such provision or the validity or enforceability of any other provision of this
11
proxy. Each provision of this proxy is separable from every other provision of
this proxy, and each part of each provision of this proxy is separable from
every other part of such provision.
This proxy shall terminate upon the earlier of the valid termination of
the Combination Agreement or the effective time of the Combination.
Dated: ______________________, 2004
---------------------------------------
Name:
Number of shares of common stock of ▇▇▇▇▇▇▇
owned of record as of the date of this proxy:
------------------------------------
12