Exhibit 99.2
STOCKHOLDER VOTING
AGREEMENT
STOCKHOLDER VOTING AGREEMENT, dated as of
February 9, 2007 (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”).
R E C I T A L S:
WHEREAS, concurrently with the execution
and delivery of this Agreement, the Company, EBC Acquisition
Corporation, a Wisconsin corporation (“Merger Sub”) and
Excel Bank Corporation, a Minnesota corporation (the
“Seller”), are entering into an Agreement and Plan of
Merger (the “Merger Agreement”), which provides, among
other things, for the merger of Merger Sub, a wholly-owned
subsidiary of the Company, with and into the Seller (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 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.
(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, 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
o
