EXHIBIT 2.3
VOTING AGREEMENT
VOTING
AGREEMENT, dated as of October 26, 2005 (this "Agreement"),
among
Patriot Holding Corp., a Minnesota
corporation ("Purchaser"), Patriot
Acquisition Corp., a Minnesota corporation
("Sub"), Transport Corporation of
America, Inc., a Minnesota corporation
("Seller"), Rutabaga Capital Management
LLC, a Delaware limited liability company
("Rutabaga"), Wasatch Advisors, Inc.,
a Utah corporation, as investment adviser
to the Wasatch Small Cap Value Fund, a
series of Wasatch Funds, Inc., a Minnesota
corporation ("Wasatch SCV"), and
Wasatch Advisors, Inc., a Utah corporation,
for various separate accounts
("Wasatch Separate Accounts" and together
with Rutabaga and Wasatch SCV, the
"Investment Advisers" and each an
"Investment Adviser").
W I T N E S S E T H:
WHEREAS, Seller,
Purchaser and Sub have negotiated an Agreement and Plan of
Merger (as such agreement may hereafter be
amended from time to time, the
"Merger Agreement"), which provides for,
upon the terms and subject to the
conditions set forth therein, the merger of
Sub with and into Seller (as set
forth in the Merger Agreement) in exchange
for $10.00 per share in cash for all
of the issued and outstanding shares of
capital stock of Seller (the "Merger");
WHEREAS, as of
the date hereof, each Investment Adviser beneficially owns
(as such term is defined pursuant to Rule
13d-3(a) promulgated under the
Exchange Act) as an investment adviser with
proxy voting privileges the number
of shares and/or options to purchase the
number of shares of common stock, $0.01
par value per share of Seller (the "Seller
Common Stock") set forth opposite
such Investment Adviser's name on Schedule
I hereto (all shares so beneficially
owned by such Investment Adviser from time
to time, together with such shares
for which beneficial ownership may
hereafter be acquired by such Investment
Adviser prior to the termination of this
Agreement, whether upon the exercise of
options, conversion of convertible
securities, exercise of warrants or by means
of purchase, dividend, distribution or
otherwise, being referred to herein as
such Investment Adviser's "Subject
Shares");
WHEREAS,
approval of the Merger Agreement by the holders of a majority
of
the issued and outstanding shares of Seller
Common Stock will be required in
order to consummate the transactions
contemplated by the Merger Agreement;
WHEREAS, as a
condition to the willingness of Purchaser to enter into the
Merger Agreement, Purchaser has requested
that each Investment Adviser enter
into this Agreement;
WHEREAS, in
order to induce Purchaser to enter into the Merger Agreement,
Rutabaga is willing to enter into this
Agreement to vote up to a maximum of
325,150 of its Subject Shares ("Rutabaga
Threshold") in favor of the approval
and adoption of the Merger Agreement and
the approval of the Merger on the terms
and conditions set forth herein; and
WHEREAS, in
order to induce Purchaser to enter into the Merger Agreement,
Wasatch SCV is willing to enter into this
Agreement to vote up to a maximum of
392,442 of its Subject Shares ("Wasatch SCV
Threshold") in favor of the approval
and adoption of the Merger Agreement and
the approval of the Merger on the terms
and conditions set forth herein.
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WHEREAS, in
order to induce Purchaser to enter into the Merger Agreement,
Wasatch Separate Accounts is willing to
enter into this Agreement to vote up to
a maximum of 230,456 of its Subject Shares
("Wasatch Separate Accounts
Threshold") in favor of the approval and
adoption of the Merger Agreement and
the approval of the Merger on the terms and
conditions set forth herein.
NOW, THEREFORE,
in consideration of the foregoing and the mutual covenants
and agreements herein contained, and
intending to be legally bound hereby,
Purchaser, Sub, Seller and the Investment
Advisers hereby agree as follows:
ARTICLE I.
DEFINITIONS
Certain
capitalized terms used and not otherwise defined herein have
the
meanings ascribed to them in the Merger
Agreement. Unless the context otherwise
requires, such terms shall include the
singular and plural and the conjunctive
and disjunctive forms of the terms
defined.
ARTICLE II.
VOTING OF SHARES
SECTION 2.1.
Agreement to Vote. From the date of the Merger Agreement until
the termination of this Agreement pursuant
to Section 4.1 hereof (the "Term"),
at every time as Seller convenes a meeting
of, or otherwise seeks a vote of,
Seller's shareholders with respect to the
following, each of Rutabaga, Wasatch
SCV and Wasatch Separate Accounts hereby
agrees to vote, or cause to be voted,
to the extent not voted by Purchaser as
appointed by the Proxy, provided that
there has been no Change in Recommendation
(as defined in the Merger Agreement),
all of its Subject Shares up to the
Rutabaga Threshold, Wasatch SCV Threshold
and Wasatch Separate Accounts Threshold,
respectively, held as of the record
date established by Seller for the purposes
of determining those shareholders of
Seller entitled to vote on such matters
(the "Record Date"):
(a) in favor of
the approval and adoption of the Merger Agreement and the
approval of the Merger and the transactions
contemplated by the Merger
Agreement;
(b) against
approval of any proposal made in opposition to, or in
competition with, the Merger and the
transactions contemplated by the Merger
Agreement; and
(c) against any
actions (other than those actions that relate to the Merger
and the transactions contemplated by the
Merger Agreement) that are intended to,
or could be reasonably expected to, impair
the ability of Seller to consummate
the Merger or otherwise impede, interfere
with, delay, postpone, discourage or
adversely affect the consummation of the
Merger in accordance with the terms of
the Merger Agreement.
2
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Each Investment Adviser further agrees not
to enter into any agreement or
understanding with any person to vote or
give instructions in any manner
inconsistent with or violative of the terms
of this Section 2.1.
SECTION 2.2.
Proxy; Reliance. Provided that there has been no Change in
Recommendation (as defined in the Merger
Agreement), each of Rutabaga, Wasatch
SCV and Wasatch Separate Accounts hereby
constitutes and appoints during the
Term Purchaser, acting through each of Van
Zandt Hawn and Joseph M. Heinen, each
with the power to act alone and with full
power of substitution and
resubstitution, at any time during the
Term, as its true and lawful
attorneys-in-fact and proxies (its
"Proxy"), for and in its name, place and
stead, to vote its Subject Shares up to the
Rutabaga Threshold, the Wasatch SCV
Threshold and the Wasatch Separate Accounts
Threshold, respectively, held as of
the Record Date as its Proxy, at every
annual, special, adjourned or postponed
meeting of the shareholders of Seller
called for purposes of considering whether
to approve the Merger Agreement or any of
the other transactions or matters
contemplated by, or directly or indirectly
affecting, the Merger Agreement or to
execute a written consent of shareholders
in lieu of any such meeting. Each
Investment Adviser understands and
acknowledges that Purchaser and Sub have
entered into the Merger Agreement in
reliance upon each Investment Adviser's
execution and delivery of this Agreement.
The parties agree that by reason of
the Merger Agreement, the Proxy is a proxy
coupled with an interest. At
Purchaser's request, each of Rutabaga,
Wasatch SCV and Wasatch Separate Accounts
will perform such further acts and execute
such further documents as may be
required to vest in Purchaser or its
Representatives the sole power to vote its
Subject Shares up to the Rutabaga
Threshold, the Wasatch SCV Threshold and the
Wasatch Separate Accounts Threshold,
respectively, with respect to the matters
set forth in Section 2.1 during the Term in
accordance with the terms of this
Agreement.
THE FOREGOING PROXY AND POWER OF ATTORNEY ARE
IRREVOCABLE AND COUPLED WITH AN INTEREST THROUGHOUT THE TERM.
SECTION 2.3.
Limitation. Each Investment Adviser shall retain at all times
the right to vote such Investment Adviser's
Subject Shares in such Investment
Adviser's sole discretion and without any
other limitation on those matters
other than those set forth in Section 2.1
that are at any time or from time to
time presented for consideration by
Seller's shareholders generally.
SECTION 2.4.
Capacity. The parties hereby agree that the Investment
Advisers are executing this Agreement
solely in their capacity as inve
