Exhibit 2.4
STOCKHOLDER VOTING
AGREEMENT
STOCKHOLDER VOTING
AGREEMENT , dated as of
December 31, 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”).
RECITALS:
WHEREAS, the Company and Trustcorp
Financial, Inc., a Missouri corporation (the “Seller”),
entered into that certain Agreement and Plan of Merger dated as of
December 21, 2005 (the “Merger Agreement”), which
provides, among other things, for the merger of the 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.
2. Voting .
(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 such 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 an
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, such Stockholder 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 but will consent to any such transfer if the
Person acquiring such Shares agrees to take such Shares subject to
the terms of this Agreement), (ii) enter into any option or
other Contract 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 such Stockholder’s 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 such
Stockholder 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 and the
Merger 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 and the Merger Agreement.
(e) To the fullest extent permitted
by applicable Law, each Stockholder hereby waives any rights of
appraisal or rights to dissent from the Merger that such
Stockholder 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 is the record
and beneficial owner of the Shares set forth opposite such
Stockholder’s name on Schedule I . Such
Shares constitute all of the shares owned of record and
beneficially owned 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 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 enforcement may
be limited by general principles of equity, whether applied in a
court of law or a court of equity, and by bankruptcy, insolvency
and similar Laws affecting creditor’s rights and remedies
generally. There is no beneficiary or holder of a voting trust
certificate or other interest of any trust of which such
Stockholder is a trustee, or any party to any other agreement or
arrangement, whose consent is required for the execution and
delivery of this Agreement or the consummation by such Stockholder
of the transactions contemplated thereby.
(c) (i) No filing with, and no
permit, authorization, consent or approval of, any Governmental
Authority is necessary for the execution and delivery of this
Agreement by such Stockholder, the consummation by such Stockholder
of the transactions contemplated hereby and the compliance by such
Stockholder with the provisions hereof and (ii) none of the
execution and delivery of this Agreement by such Stockholder, the
consummation by such Stockholder of the transactions contemplated
hereby or compliance by such Stockholder with any of the provisions
hereof, except in cases in which any conflict, breach, default or
violation described below would not interfere with the ability of
such Stockholder to perform such Stockholder’s obligations
hereunder, shall (A) conflict with or result in any breach of
any organizational documents applicable to such Stockholder,
(B) result in a violation or breach of, or constitute (with or
without notice or lapse of time or both) a default (or give rise to
any third party right of termination, cancellation, modification or
acceleration) under, any of the terms, conditions or provisions of
any note, loan agreement, bond, mortgage, indenture, license or
other Contract of any kind, including, without limitation, any
voting agreement, proxy arrangement, pledge agreement, stockholders
agreement or voting trust, to which such Stockholder is a party or
by which such Stoc
