Exhibit 10.1
VOTING
AGREEMENT
THIS VOTING AGREEMENT
(this “ Agreement
”) is entered into as of September 6, 2005, among
LANDMARK BANCORP, INC., a Delaware corporation (“
Landmark ”), FIRST MANHATTAN BANCORPORATION,
INC. , a Kansas corporation (“ First Manhattan
”), and First Manhattan shareholders who collectively own not
less than seventy-five percent (75%) of First Manhattan’s
outstanding voting stock, par value $10.00 per share (“
Voting Stock ”), with the power to vote all such
shares of Voting Stock and who are signatories to this Agreement
(collectively referred to in this Agreement as the “
Principal Shareholders ,” and individually as a
“ Principal Shareholder .”)
RECITALS
A.
As of the date hereof, each
Principal Shareholder is the owner (either individually, or through
one or more of the trusts set forth on the signature page of
this Agreement) of the number of shares of Voting Stock as is set
forth above such Principal Shareholder’s name on the
signature page attached hereto and such total number of shares
represents approximately the percentage of the issued and
outstanding shares of First Manhattan’s voting stock that is
also set forth thereon above such Principal Shareholder’s
name.
B.
Landmark is contemplating the
acquisition of First Manhattan by means of a merger (the “
Merger ”) of Manhattan Acquisition Corporation, a
Kansas corporation (“ Acquisition Corp ”), with
and into First Manhattan pursuant to an Agreement and Plan of
Merger dated of even date herewith (the “ Merger
Agreement ”).
C.
Landmark is unwilling to expend the
substantial time, effort and expense necessary to implement the
Merger, including applying for and obtaining necessary approvals of
regulatory authorities, unless all of the Principal Shareholders
enter into this Agreement.
D.
Each Principal Shareholder believes
it is in his or her best interest as well as the best interest of
First Manhattan for Landmark to consummate the Merger.
AGREEMENTS
In consideration of the foregoing
premises, which are incorporated herein by this reference, and the
covenants and agreements of the parties herein contained, and as an
inducement to Landmark to enter into the Merger Agreement and to
incur the expenses associated with the Merger, the parties hereto,
intending to be legally bound, hereby agree as follows:
Section 1.
Definitions;
Construction .
All terms
that are capitalized and used herein (and are not otherwise
specifically defined herein) shall be used in this Agreement as
defined in the Merger Agreement. The parties hereby
incorporate by this reference the principles of construction set
forth in Section 1.2 of the Merger Agreement.
Section 2.
Representations and
Warranties .
Each
Principal Shareholder represents and warrants that as of the date
hereof, he:
(a)
owns (either
individually, or through one or more of the trusts set forth on the
signature page of this Agreement) the number of shares of
Voting Stock as is set forth above such Principal
Shareholder’s name on the signature page attached
hereto, all of which shares are free and clear of all liens,
pledges, security interests, claims, encumbrances, options, voting
agreements, proxies, agreements to sell and commitments of every
kind (collectively, “ Encumbrances ”);
(b)
has the sole, or
joint with any other Principal Shareholder (or any trustee holding
shares for the benefit of such Principal Shareholder and who is a
signatory to this Agreement), voting power with respect to such
shares of Voting Stock, and that he or she does not own or hold any
rights to acquire any additional shares of First Manhattan’s
capital stock (by exercise of stock options or otherwise) or any
interest therein or any voting rights with respect to any
additional shares; and
(c)
has all necessary
power and authority to enter into this Agreement and further
represents and warrants that this Agreement is the legal, valid and
binding agreement of such Principal Shareholder (or any trustee
holding shares for the benefit of such Principal Shareholder), and
is enforceable against such Principal Shareholder (or trustee, as
the case may be) in accordance with its terms.
Section 3.
Voting Agreement
. Each Principal
Shareholder (or any trustee holding shares for the benefit of such
Principal Shareholder) hereby agrees that at any meeting of First
Manhattan’s shareholders however called, and in any action by
written consent of First Manhattan’s shareholders, such
Principal Shareholder or trustee shall vote all shares of Voting
Stock now or at any time hereafter owned or controlled by
him:
(a)
in favor of the
Merger and the other Contemplated Transactions as described in the
Merger Agreement, and any action or agreement that would reasonably
be expected to facilitate the Contemplated
Transactions;
(b)
against any
acquisition of any capital stock of First Manhattan or the Bank
through purchase, merger, consolidation or otherwise, or the
acquisition by any method of a substantial portion of the assets of
First Manhattan or the Bank, in any such case by any party other
than Landmark or its Subsidiaries (an “ Acquisition Transaction ”);
(c)
against any
action or agreement that would reasonably be expected to result in
a material breach of any covenant, representation or warranty or
any other obligation of First Manhattan under the Merger Agreement;
and
(d)
against any
action or agreement that would reasonably be expected to impede or
interfere with the Contemplated Transactions, including any:
(i) change in the board of directors of First Manhattan or the
Bank; (ii) change in the present capitalization of First
Manhattan or the Bank; or (iii) other material change in the
corporate structure or business of First Manhattan or the Bank, in
each such case except as otherwise agreed to in writing by
Landmark.
2
(e)
For avoidance of
doubt, it is understood that nothing in this Section shall
obligate any Principal Shareholder (or any trustee holding shares
for the benefit of such Principal Shareholder) to vote or execute a
written consent with regard to any
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