Exhibit 99.1
FORM OF VOTING
AGREEMENT
THIS VOTING
AGREEMENT is made and effective as of
,
2007 (this “ Agreement ”) among Old Second
Bancorp, Inc., a Delaware corporation (“ Purchaser
”), and [name], [a resident of the State of Illinois] (the
“ Shareholder ”).
WHEREAS,
concurrently with the execution and delivery of this Agreement,
Purchaser, Old Second Acquisition, Inc., a Delaware corporation and
wholly-owned subsidiary of Purchaser (“ Merger Sub
”), and HeritageBanc, an Illinois corporation (“
Company ”), are executing and delivering an Agreement
and Plan of Merger (as such agreement may be amended from time to
time, the “ Merger Agreement ”), pursuant to
which Purchaser, Merger Sub and Company are agreeing to effect the
merger of Merger Sub with and into Company (the “
Merger ”); and
WHEREAS, as a
condition and inducement to entering into the Merger Agreement,
Purchaser has required that the Shareholder agree, and the
Shareholder has agreed, to enter into this Agreement for the
purpose of establishing the terms and conditions upon which the
Shareholder will, among other things, vote in favor of the Merger
all of the shares of Common Stock, $20.00 par value per share, of
Company now owned or controlled by the Shareholder (including,
without limitation, any shares of Common Stock held for the benefit
of the Shareholder in the Company’s ESOP and over which the
Shareholder has voting power), other than shares held or voted in a
fiduciary capacity, and all shares of such Common Stock acquired by
the Shareholder, other than shares acquired or voted in a fiduciary
capacity, after the date and prior to the termination of this
Agreement by means of purchase, dividend, distribution, exercise of
options, warrants or other rights to acquire such Common Stock or
in any other way (collectively, the “ Shares ”);
and
WHEREAS,
capitalized terms used but not otherwise defined in this Agreement
shall have the meanings set forth in the Merger Agreement.
NOW, THEREFORE, in
consideration of the foregoing and the mutual representations,
warranties, covenants and agreements set forth in this Agreement,
and intending to be legally bound hereby, the parties agree as
follows:
1.
Covenants of the Shareholder .
(a)
Voting Agreement . The Shareholder shall, at any meeting of
the shareholders of Company, however called, or in connection with
any written consent of the shareholders of Company, vote (or cause
to be voted) all of the Shares (i) in favor of the Merger, the
execution and delivery by Company 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 all
actions required in furtherance thereof and hereof;
(ii) against any Unsolicited HeritageBanc Proposal; and (iii)
against any action or agreement that would impede, frustrate,
prevent or nullify this Agreement, that would result in a breach of
any covenant, representation or warranty or other obligation or
agreement of Company under the Merger Agreement or that would
result in any of the conditions set forth in Article 9 of
the Merger Agreement not being fulfilled.
(b)
Grant of Irrevocable Proxy . The Shareholder hereby
irrevocably grants to, and appoints, William B. Skoglund and J.
Douglas Cheatham, or either of them, in their respective capacities
as officers of Purchaser, and any individual who shall hereafter
succeed to any such office of Purchaser, and each of them
individually, the Shareholder’s proxy and attorney-in-fact
(with full
power of substitution), for and in the name,
place and stead of the Shareholder, to vote the Shares
(excluding any shares of Common Stock held for the benefit
of the Shareholder in the Company’s ESOP) (the “
Non-ESOP Shares ”), or to grant a consent or approval
in respect of the Non-ESOP Shares, in a manner consistent with
Section 1(a) . The Shareholder represents, warrants and
covenants that (i) all proxies heretofore given by the Shareholder
in respect of any Non-ESOP Shares are not irrevocable and (ii) all
proxies heretofore given by the Shareholder in respect of any
Non-ESOP Shares are hereby revoked. The Shareholder understands and
acknowledges that Purchaser is entering into the Merger Agreement
in reliance upon the Shareholder’s execution and delivery of
this Agreement. The Shareholder hereby affirms that the irrevocable
proxy set forth in this Section 1(b) is given in connection
with the execution and delivery of the Merger Agreement and that
such irrevocable proxy is given to secure the performance of the
duties of the Shareholder under this Agreement. The Shareholder
hereby further affirms that the irrevocable proxy set forth in this
Section 1(b) is coupled with an interest and may not be
revoked under any circumstances. The Shareholder hereby ratifies
and confirms all that such irrevocable proxy may lawfully do or
cause to be done by virtue hereof.
(c)
No Inconsistent Arrangements . The Shareholder shall not,
and the Shareholder shall cause his or her affiliates not to,
(i) transfer (which term shall include any sale, gift, pledge
or other disposition), or consent to any transfer of, any Shares or
interest therein, (ii) enter into any contract, option or
other agreement or understanding with respect to any transfer of
any Shares or interest therein, (iii) grant any proxy,
power-of-attorney or other authorization in or with respect to any
Shares or interest therein, (iv) deposit any Shares or
interest therein into any voting trust or enter into any voting
agreement or arrangement with respect to any Shares or interest
therein or (v) take any other action that would in any way
restrict, limit or interfere with the performance of the
Shareholder’s obligations under this Agreement or the
transactions contemplated hereby or the performance of
Company’s obligations under the Merger Agreement or the
transactions contemplated thereby, including the Merger, except (w)
as otherwise expressly contemplated by this Agreement and the
Merger Agreement, (x) as required by law, (y) with the prior
written consent of Old Second (which consent shall not be
unreasonably withheld), for any sales, assignments, transfers or
other dispositions necessitated by hardship or (z) as Old Second
may otherwise agree in writing.
(d)
Stop Transfer . Subject to Section 1(c), the Shareholder
shall not, and the Shareholder shall cause his or her affiliates
not to, request that Company register the transfer (book-entry or
otherwise) of any certificate or uncertificated interest
representing any Shares; provided, however, that nothing contained
herein shall be deemed to prevent the Shareholder from requesting
or effecting the distribution of any Shares from the
Company’s ESOP to the Shareholder upon the termination of the
Company’s ESOP.
(e)
No Solicitation . The Shareholder hereby agrees, in his or
her capacity as a shareholder of Company, that neither the
Shareholder nor any of his or her affiliates, representatives or
agents shall (and the Shareholder shall cause his or her
affiliates, representatives and agents, including investment
bankers, attorneys and accountants, not to), directly or
indirectly, encourage, solicit, participate in or initiate
discussions or negotiations with, or provide any information to,
any person, entity or other organization (other than Purchaser or
any of its affiliates) relating to any Acquisition Transaction. The
Shareholder shall immediately cease all discussions or
negotiations, if any, with any Person other than Purchaser that may
be ongoing as of the date of this Agreement with respect to any
Acquisition Transaction. The Shareholder shall provide Purchaser
with written notice of (i) any request for information, any
Acquisition Transaction or any inquiry, proposal, discussions or
negotiations with respect to any Acquisition Transaction received
in his or her capacity as a
2
shareholder of Company, (ii) the terms and
conditions of such request, Acquisition Transaction, inquiry,
proposal, discussions or negotiations and (iii) the identity of the
Person making any such Acquisition Transaction or such request,
inquiry or proposal or with whom such discussions or negotiations
are taking place, and the Shareholder shall promptly provide
Purchaser with copies of any written materials received by the
Shareholder in connection with any of the foregoing.
(f)
No Withdrawal or Exercise of Shareholder Rights . The
Shareholder shall not, and the Shareholder shall cause his or her
respective affiliates not to, (i) exercise any shareholder rights
or remedies available at common law or pursuant to the Illinois
Business Corporation Act or any other applicable Law to delay,
hinder, upset or challenge the Merger or (ii) seek or exercise any
dissenters, appraisal or similar rights with respect to any of the
Shares.
(g)
Proxy Statement; Press Releases . The Shareholder authorizes
Company and Purchaser to publish and disclose in the Proxy
Statement-Prospectus and/or in any press release issued by Company
or Purchaser in connection with the transactions contemplated by
the Merger Agreement his or her identity and ownership of Shares
and the nature of his or her commitments, arrangements and
understandings under this Agreement.
(h)
No Evasion of Purpose . The Shareholder shall not do
indirectly that which he may not do directly in respect of the
restrictions on
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