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EXHIBIT 99(c)
VOTING AGREEMENT
THIS VOTING AGREEMENT, dated as of January 15, 2001 (the "AGREEMENT")
is by and among The ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Family Spray Trust (the "STOCKHOLDER"),
United Parcel Service, Inc., a Delaware corporation (the "PARENT") and Stag
Merger Company, Inc., a Delaware corporation ("SUBSIDIARY" and together with
Parent the "GRANTEE").
WHEREAS, Parent, Subsidiary and First International Bancorp Inc.
("TARGET") have, contemporaneously with the execution of this Agreement, entered
into an Agreement and Plan of Merger, dated as of January 15, 2001 (the "MERGER
AGREEMENT"), pursuant to which Subsidiary will be merged with and into Target
(the "MERGER");
WHEREAS, Stockholder is the owner, both beneficially and of record, of
816,500 shares of Target's common stock, $.001 par value per share (the "COMMON
STOCK") (such shares, together with any other shares of Common Stock or other
voting capital stock of Target or rights with respect thereto acquired (either
beneficially or of record) by Stockholders after the date hereof whether upon
the exercise of options or warrant or conversion of convertible securities or
otherwise, being referred to herein as the "VOTING AGREEMENT SHARES");
WHEREAS, as a condition to the willingness of Grantee to enter into the
Merger Agreement, Grantee has required that the Stockholder agree, and in order
to induce Grantee to enter into the Merger Agreement, the Stockholder has
agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, the parties hereto expressly agree as
follows:
1. DEFINITIONS. Capitalized terms used but not otherwise defined
in this Agreement shall have the meanings ascribed to such terms in the Merger
Agreement.
2. RESTRICTIONS ON TRANSFER AND CONVERSION.
2.1 No Transfers. The Stockholder hereby covenants and
agrees that the Stockholder shall not, except as otherwise consented to in
writing by Grantee (such consent being within Grantee's sole, absolute and
unfettered discretion), prior to the termination of this Agreement, (a) either
directly or indirectly, offer or otherwise sell, assign, pledge, hypothecate,
transfer, exchange, tender, dispose of or grant an option to dispose of any
Voting Agreement Shares or any interest therein, or enter into any agreement,
contract or understanding (oral or written) to do any of the foregoing, or (b)
take any action which would have the effect of preventing or disabling the
Stockholder from performing the Stockholder's obligations under this Agreement;
provided, however,
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that Stockholder shall be permitted to transfer Voting Agreement Shares (i) by
will or by operation of law, in which case this Agreement shall bind the
transferee, (ii) pursuant to any pledge agreement, subject to the pledgee
agreeing in writing to be bound by the terms of this Agreement, (iii) in
connection with estate and tax planning purposes, including transfers to
relatives, trusts and charitable organizations, subject to the transferee
agreeing in writing to be bound by the terms of this Agreement, or (iv) to any
other stockholder of Target who has executed a voting agreement substantially
similar to this Agreement.
2.2 Inquiries or Proposals. From the date of this
Agreement to termination hereof, Stockholder shall not, directly or indirectly,
through any officer, director, employee, representative or agent (a) solicit,
initiate, or encourage any inquiries or proposals that constitute or could
reasonably be expected to lead to an Acquisition Transaction, or (b) engage in
negotiations or discussions concerning, or provide any non-public information to
any person or entity relating to, any Acquisition Transaction.
3. STOCKHOLDER'S RIGHTS. Except as may be limited by this
Agreement, the Stockholder shall, as to the Voting Agreement Shares, possess and
be entitled to exercise all of the Stockholder's rights and powers of every kind
as the beneficial owner thereof, including the right to vote the Voting
Agreement Shares and the right to take part in, or give or withhold consent to,
any corporate or stockholders' action with respect to which such Voting
Agreement Shares are entitled to be voted.
4. VOTING AGREEMENT.
4.1 Voting Agreement. The Stockholder has revoked or
terminated any proxies, voting agreements or similar arrangements previously
given or entered into with respect to the Voting Agreement Shares and hereby
fully and irrevocably agrees to: (a) appear at any stockholders' meeting of
Target held with respect to the Merger or otherwise cause the Voting Agreement
Shares to be counted as present at such meeting for purposes of establishing a
quorum, (b) vote or consent (or cause to be voted or consented) all of the
Voting Agreement Shares in favor of the adoption and approval of the Merger
Agreement and consummation of the Merger and any other action required in
furtherance thereof; and (c) vote or consent (or cause to be voted or consented)
all of the Voting Agreement Shares against any Acquisition Transaction (other
than the Merger). Nothing in this Agreement shall limit or restrict a
Stockholder's ability to act or vote in such Stockholder's capacity as an
officer or director of Target in any manner such Stockholder so chooses.
4.2 Stockholder Authority. The Stockholder may vote on
all issues that come before any meeting of stockholders of Target, other than
those specified in Section 4.1, in such Stockholder's sole discretion, provided
that such vote is not inconsistent with the purposes of this Agreement or the
transactions contemplated by the Merger Agreement.
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5. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER. The
Stockholder hereby represents and warrants to Grantee as follows:
5.1 Due Execution. This Agreement has been duly and
validly executed and delivered by the Stockholder and constitutes a legal, valid
and binding agreement of the Stockholder enforceable against the Stockholder in
accordance with its terms, except that the enforcement hereof may be limited by
(i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights generally and (ii) general
principles of equity (regardless of whether enforceability is considered in a
proceeding in equity or at law).
5.2. No Conflicts. The execution and delivery of this
Agreement by the Stockholder does not, and the performance of this Agreement by
the Stockholder will not, 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 result in the creation of a lien or encumbrance on any of
the Voting Agreement Shares 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
the Voting Agreement Shares are bound or affected, except, in the case of each
of the foregoing, for any such conflicts, violations, breaches, defaults or
other occurrences which would not prevent or materially delay the performance by
the Stockholder of its obligations under this Agreement or the transactions
contemplated by the Merger Agreement or hereby.
5.3 Record Ownership. The Stockholder is the beneficial
or record owner of the Voting Agreement Shares and has the right to vote or
direct the voting of the Voting Agreement Shares. The Stockholder has not
appointed or granted any proxy or entered into any voting agreement or similar
arrangement, which proxy, voting agreement or other arrangement is in effect on
the date hereof or will be effective at any time while this Agreement remains in
effect, with respect to the Voting Agreement Shares.
6. TERMINATION. This Agreement shall terminate upon the earliest
to occur of (i) the termination of the Merger Agreement in accordance with its
terms or (ii) the Effective Time.
7. MISCELLANEOUS.
7.1. Waiver and Amendment. This Agreement may not be
modified, amended, altered or supplemented, except upon the execution and
delivery of a written agreement executed by the parties hereto. No waiver will
be effective unless in a writing which makes express reference to this Section
7.1 and is signed by the party or parties sought to be bound thereby.
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7.2 Entire Agreement. This Agreement contains the entire
agreement among Parent, Subsidiary and Stockholder with respect to the
transactions contemplated hereby, and supersedes all prior agreements among the
parties with respect to such matters.
7.3 Applicable Law. This Agreement will be governed by
and construed in accordance with the laws of the State of Delaware.
7.4 Descriptive Headings. The descriptive headings
contained in this Agreement are for convenience and reference only and will not
affect in any way the meaning or interpretation of this Agreement. Unless the
context of this Agreement expressly indicates otherwise, (i) any singular term
in this Agreement will include the plural and any plural term will include the
singular and (ii) the term section or schedule will mean a section or schedule
of or to this Agreement.
7.5 Notices. All notices, consents, requests, demands and
other communications hereunder will be in writing, signed by or on behalf of the
party making the same, will specify the Sections under this Agreement pursuant
to which it is given or being made and will be delivered personally or sent by
registered or certified mail (return receipt requested) or by UPS Next Day Air
(with evidence of delivery and postage and other fees prepaid) as follows:
If to Parent or Sub:
To the address set forth in the Merger Agreement
With copies to:
King & Spalding
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
and
United Parcel Service, Inc.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Legal Department -- ▇▇▇▇▇ ▇▇▇▇▇▇
If to Stockholder:
The ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Family Spray Trust
c/o Chase Enterprises
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
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or to such other address as any party may have furnished to the other parties in
writing in accordance with this Section 7. Any such notice communication or
delivery will be deemed to be given or made (a) on the date of delivery if
delivered in person, (b) on the first business day after delivery to a UPS
customer service representative or (c) on the fifth business day after it is
mailed by registered or certified mail.
7.5 Counterparts. This Agreement may be executed in any
number of counterparts, each of which will be deemed to be an original but all
of which together will constitute but one agreement.
7.6 Assignment. This Agreement is not intended to nor
will it confer upon any other person (other than the parties hereto) any rights
or remedies. Without the prior written consent of the other parties to this
Agreement, no party may assign any rights or delegate any obligations under this
Agreement. Any such purported assignment or delegation made without prior
consent of the other parties hereto shall be null and void.
7.7 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other terms and provisions of this Agreement will
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party hereto. Upon any such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
will negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that the transactions contemplated by this Agreement are consummated to
the extent possible.
7.8 Parties in Interest. All covenants and agreements
contained herein shall be binding upon and inure to the benefit of the
Stockholder or Grantee, whichever is applicable under the terms hereof. Nothing
in this Agreement, whether express or implied, shall be construed to give to any
person, other than the Stockholder or Grantee, any legal or equitable right,
remedy or claim under or in respect of this Agreement (and any covenants,
conditions or provisions contained herein).
7.9. Specific Performance. Each party acknowledges that
its obligations hereunder are unique, and agrees that the other shall have the
right, in addition to any other rights it may have at law, to specific
performance or equitable relief by way of injunction if it shall fail to perform
any of its obligations hereunder.
7.10. Forum Selection. Each of the parties hereto (i)
consents to submit to the personal jurisdiction of any Federal Court located in
the State of New York or any New York state court in the event any dispute
arises out of this Agreement or any of the transactions contemplated hereby,
(ii) agrees that such party will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court and (iii)
agrees that such party will not bring any action relating to this Agreement or
any of the transactions contemplated hereby in any court other than a Federal
court sitting in the State of New York or a New York state court.
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IN WITNESS WHEREOF, each of the parties hereto have executed this
Agreement, or caused this Agreement to be duly executed, as of the date hereof.
THE ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
FAMILY SPRAY TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Trustee
UNITED PARCEL SERVICE, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name:
Title:
STAG MERGER COMPANY, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name:
Title: