Exhibit 10.2
EXECUTION COPY
STOCKHOLDER VOTING
AGREEMENT
STOCKHOLDER VOTING
AGREEMENT , dated as of
November 9, 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”).
R E C I T A L S:
WHEREAS, concurrently with the execution
and delivery of this Agreement, the Company and Gold Banc
Corporation, Inc., a Kansas corporation (the “Seller”),
are entering into an Agreement and Plan of Merger (the
“Merger Agreement”), which provides, among other
things, for the merger of 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 the 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 a 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, it 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) or any transfer of Shares
in which the Stockholder retains the sole power to vote or direct
the voting of such transferred Shares, except any transfer of
Shares to another Stockholder, any sale or surrender of Shares to
pay the exercise price of any Company stock option or to pay taxes
or satisfy the Company’s withholding obligation with respect
to any taxes resulting from such exercise or the forfeiture of
restricted stock, (ii) enter into any contract, option or
other agreement or understanding 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 its 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 it 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.
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.
(e) To the extent permitted by
applicable law, each Stockholder hereby waives any rights of
appraisal or rights to dissent from the Merger that it 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 his
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 (except restricted
stock) 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 may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect and subject to the
limitations imposed by general equitable principles, regardless of
whether such enforceability is considered in a proceeding at law or
in equity. &n
