STOCKHOLDER VOTING
AGREEMENT
STOCKHOLDER
VOTING AGREEMENT , dated as of November 9, 2005 (the
“Agreement”), among Marshall & Ilsley Corporation,
a Wisconsin corporation (the “Company”) and the persons
listed on Schedule I hereto (each a “Stockholder”
and, collectively, the “Stockholders”).
WHEREAS,
concurrently with the execution and delivery of this Agreement, the
Company and Gold Banc Corporation, Inc., a Kansas 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 Stockholders agree, and each
Stockholder 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 Merger Agreement, shall have the respective meanings
ascribed to them in the Merger Agreement.
(a) Each
Stockholder shall, at any meeting of the Stockholders of the
Seller, however called, or in connection with any written consent
of the Stockholders of the Seller, vote (or cause to be voted) all
Shares then held of record or beneficially owned by such
Stockholder (to the extent the Stockholder has the sole right to
vote or direct the voting of such Shares) and use his reasonable
best efforts to vote (or cause to be voted) all Shares then held of
record or beneficially owned by such Stockholder (to the extent the
Stockholder has the shared right to vote or direct the voting of
such Shares), (i) in favor of the Merger, the execution and
delivery by the Seller of the Merger Agreement and the approval of
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 Acquisition 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
Stockholder 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 beneficially owned by such Stockholder (to the
extent the Stockholder has the right to dispose of or direct the
disposition of such Shares) 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) or any transfer of Shares in which the
Stockholder retains the sole power to vote or direct the voting of
such transferred Shares, except any transfer of Shares to another
Stockholder, any sale or surrender of Shares to pay the exercise
price of any Company stock option or to pay taxes or satisfy the
Company’s withholding obligation with respect to any taxes
resulting from such exercise or the forfeiture of restricted stock,
(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 except as permitted in clause (i),
(iii) grant any proxy, power-of-attorney or other
authorization or consent in or with respect to such Shares except
to vote the Shares in accordance with the terms of this Agreement,
(iv) deposit such Shares into a voting trust or enter into a
voting agreement or arrangement with respect to such Shares, or
(v) subject to Section 6 hereof, take any other action
that would make any representation or warranty of such Stockholder
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 hereof, each Stockholder hereby agrees that such
Stockholder (i) 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
Acquisition Proposal, (ii) upon execution of this Agreement,
will immediately cease any existing activities, discussions or
negotiations conducted heretofore with respect to any Acquisition
Proposal, and (iii) will immediately communicate to the
Company the terms of any Acquisition Proposal (or any discussion,
negotiation or inquiry with respect thereto) and the identity of
the person making such Acquisition 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) To the extent
permitted by applicable law, each Stockholder hereby waives any
rights of appraisal or rights to dissent from the Merger that it
may have.
2
3.
Representations and Warranties of Each Stockholder . Each
Stockholder hereby represents and warrants, severally and not
jointly, to the Company as follows:
(a) Such
Stockholder owns individually and beneficially the Shares set forth
opposite his name on Schedule I. Such Shares constitute all of
the shares owned individually and beneficially by such Stockholder
on the date hereof. Such Stockholder 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 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 listed in Schedule I (except restricted
stock) with no limitations, qualifications or restrictions on such
rights, subject to applicable securities laws and the terms of this
Agreement.
(b) Such
Stockholder has the power and authority to enter into and perform
all of such Stockholder’s obligations under this Agreement.
This Agreement has been duly and validly executed and delivered by
such Stockholder and constitutes a legal, valid and binding
agreement of such Stockholder, enforceable against such Stockholder
in accordance with its terms, except in each case as may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect and subject to the
limitations imposed by general equitable principles, regardless of
whether such enforceability is considered in a proceeding at law or
in equity. There is no beneficiary or holder of a voting trust
certificate or other i
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