STOCKHOLDER VOTING
AGREEMENT
STOCKHOLDER VOTING
AGREEMENT, dated as of December 1, 2006 (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 United Heritage Bankshares of Florida, Inc., a Florida
corporation (the “Seller”), are entering into an
Agreement and Plan of Merger (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.
(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 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.
Notwithstanding any other provision of this Agreement to the
contrary, the Stockholder shall be permitted to vote such Shares in
favor of a Superior Offer that is submitted for approval by the
stockholders of the Seller if all of the following shall have
occurred: (a) the Seller’s Board of Directors has
approved such Superior Offer and recommended such Superior Offer to
the Seller’s stockholders in accordance with Section 4.4
of the Merger Agreement, (b) the Merger Agreement has been
terminated in accordance with Section 8.1(h) of the
Merger
Agreement, and
(c) the Seller has paid the Termination Fee to the Company in
accordance with Section 8.3(b)(i) of the Merger
Agreement.
(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), (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.
2
(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.
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 such Stockholder’s 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 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,
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