EXHIBIT 2.2
VOTING AGREEMENT
VOTING AGREEMENT, dated as of October 26, 2005 (this "Agreement"), among
Patriot Holding Corp., a Minnesota corporation ("Purchaser"), Patriot
Acquisition Corp., a Minnesota corporation ("Sub"), Transport Corporation of
America, Inc., a Minnesota corporation ("Seller"), and certain shareholders of
Seller whose names appear on Schedule I hereto (each a "Shareholder" and
collectively, the "Shareholders").
W I T N E S S E T H:
WHEREAS, Seller, Purchaser and Sub have negotiated an Agreement and Plan of
Merger (as such agreement may hereafter be amended from time to time, the
"Merger Agreement"), which provides for, upon the terms and subject to the
conditions set forth therein, the merger of Sub with and into Seller (as set
forth in the Merger Agreement) in exchange for $10.00 per share in cash for all
of the issued and outstanding shares of capital stock of Seller (the "Merger");
WHEREAS, as of the date hereof, each Shareholder beneficially owns (as such
term is defined pursuant to Rule 13d-3(a) promulgated under the Exchange Act)
the number of shares and/or options to purchase the number of shares of common
stock, $0.01 par value per share of Seller (the "Seller Common Stock") set forth
opposite such Shareholder's name on Schedule I hereto (all shares owned by such
Shareholder from time to time and for which beneficial ownership may hereafter
be acquired by such Shareholder prior to the termination of this Agreement,
whether upon the exercise of options, conversion of convertible securities,
exercise of warrants or by means of purchase, dividend, distribution or
otherwise, being referred to herein as such Shareholder's "Subject Shares");
WHEREAS, approval of the Merger Agreement by the holders of a majority of
the issued and outstanding shares of Seller Common Stock will be required in
order to consummate the transactions contemplated by the Merger Agreement;
WHEREAS, as a condition to the willingness of Purchaser to enter into the
Merger Agreement, Purchaser has requested that each Shareholder enter into this
Agreement; and
WHEREAS, in order to induce Purchaser to enter into the Merger Agreement,
each Shareholder is willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, and intending to be legally bound hereby,
Purchaser, Sub, Seller and the Shareholders hereby agree as follows:
ARTICLE I.
DEFINITIONS
Certain capitalized terms used and not otherwise defined herein have the
meanings ascribed to them in the Merger Agreement. Unless the context otherwise
requires, such terms shall include the singular and plural and the conjunctive
and disjunctive forms of the terms defined.
ARTICLE II.
VOTING OF SHARES
SECTION 2.1. Agreement to Vote. From the date hereof until the termination
of this Agreement pursuant to Section 4.1 hereof (the "Term"), at every time as
Seller convenes a meeting of, or otherwise seeks a vote of, Seller's
shareholders with respect to the following, each Shareholder hereby agrees to
vote, or cause to be voted, to the extent not voted by Purchaser as appointed by
the Proxy, all of Shareholder's Subject Shares held as of the record date
established by Seller for the purposes of determining those shareholders of
Seller entitled to vote on such matters (the "Record Date"):
(a) in favor of the approval and adoption of the Merger Agreement and the
approval of the Merger and the transactions contemplated by the Merger
Agreement;
(b) against approval of any proposal made in opposition to, or in
competition with, the Merger and the transactions contemplated by the Merger
Agreement; and
(c) against any actions (other than those actions that relate to the Merger
and the transactions contemplated by the Merger Agreement) that are intended to,
or could be reasonably expected to, impair the ability of Seller to consummate
the Merger or otherwise impede, interfere with, delay, postpone, discourage or
adversely affect the consummation of the Merger in accordance with the terms of
the Merger Agreement.
Each Shareholder further agrees not to enter into any agreement or understanding
with any person to vote or give instructions in any manner inconsistent with or
violative of the terms of this Section 2.1.
SECTION 2.2. Proxy; Reliance. Each Shareholder hereby constitutes and
appoints Purchaser, acting through each of Van Zandt Hawn and Joseph M. Heinen,
each with the power to act alone and with full power of substitution and
resubstitution, at any time during the Term, as its true and lawful
attorneys-in-fact and proxies (its "Proxy"), for and in its name, place and
stead, to vote such Shareholder's Subject Shares held as of the Record Date as
its Proxy, at every annual, special, adjourned or postponed meeting of the
shareholders of Seller called for purposes of considering whether to approve the
Merger Agreement or any of the other transactions or matters contemplated by, or
directly or indirectly affecting, the Merger Agreement or to execute a written
consent of shareholders in lieu of any such meeting. Each Shareholder
understands and acknowledges that Purchaser and Sub have entered into the Merger
Agreement in reliance upon each Shareholder's execution and delivery of this
Agreement. The parties agree that by reason of the Merger Agreement, the Proxy
is a proxy coupled with an interest. At Purchaser's request, each Shareholder
will perform such further acts and execute such further documents as may be
required to vest in Purchaser or its Representatives the sole power to vote
Shareholder's Subject Shares with respect to the matters set forth in Section
2.1 during the Term in accordance with the terms of this Agreement.
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THE FOREGOING PROXY AND POWER OF ATTORNEY ARE
IRREVOCABLE AND COUPLED WITH AN INTEREST THROUGHOUT THE TERM.
SECTION 2.3. Limitation. Each Shareholder shall retain at all times the
right to vote such Shareholder's Subject Shares in such Shareholder's sole
discretion and without any other limitation on those matters other than those
set forth in Section 2.1 that are at any time or from time to time presented for
consideration by Seller's shareholders generally.
SECTION 2.4. Capacity. The parties hereby agree that the Shareholders are
executing this Agreement solely in their capacity as shareholders of Seller.
Nothing contained in this Agreement shall limit or otherwise affect, in any
manner, the conduct or exercise of the Shareholders' fiduciary duties as
officers or directors of Seller, where applicable.
SECTION 2.5. Transfer of Subject Shares. Except as otherwise contemplated
by the Merger Agreement, from and after the date of this Agreement until the
termination of this Agreement, each Shareholder agrees that it will be the
beneficial owner of all of such Shareholder's Subject Shares and will hold such
Subject Shares free and clear of all Liens and will not, directly or indirectly,
without the prior written consent of Purchaser:
(a) offer for sale, sell, transfer, tender, pledge, encumber, assign or
otherwise in any way dispose of, or enter into any contract, option or other
agreement (oral or written) with respect to or consent to the offer for sale,
sale, transfer, tender, pledge, encumbrance, assignment or any other disposition
of, any or all of such Shareholder's Subject Shares, or any interest therein;
(b) grant any proxies or powers of attorney, deposit any of the Subject
Shares into a voting trust or enter into a voting agreement with respect to any
of the Subject Shares;
(c) take any action that would reasonably be expected to have the effect of
preventing or disabling such Shareholder from performing its obligations under
this Agreement or making any representation or warranty of such contained in
this Agreement untrue or incorrect;
(d) enter into any agreement or arrangement providing for any of the
actions described in clause (a), (b) or (c) above.
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ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
Each Shareholder hereby, severally and not jointly, represents and warrants
to Purchaser and Sub as follows:
(a) Schedule I hereto correctly sets forth the number of shares of Seller
Common Stock beneficially owned by such Shareholder as of the date of this
Agreement, and such Shareholder has good title to all shares of Seller Common
Stock set forth below his, her or its name on the signature page hereto free and
clear of all Liens.
(b) Such Shareholder has all requisite legal capacity, power and authority
to enter into and perform all of its obligations under this Agreement. This
Agreement has been duly and validly executed and delivered by such Shareholder
and when duly and validly executed and delivered by Purchaser and Sub will
constitute a valid and binding agreement of such Shareholder, enforceable
against it in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally and by general equitable principles. There
is no beneficiary or holder of a voting trust certificate or other interest of
any trust of which such Shareholder is trustee whose consent is required for the
execution and delivery of this Agreement or the consummation by such Shareholder
of the transactions contemplated hereby.
ARTICLE IV.
MISCELLANEOUS
SECTION 4.1. Termination. This Agreement shall terminate upon the earliest
to occur of (i) the Merger Effective Time, (ii) the valid termination of the
Merger Agreement in accordance with its terms, (iii) the execution of any
amendment to the Merger Agreement that modifies the amount, form or timing of
payment of the Merger Consideration in a manner adverse to any Shareholder
without the prior written consent of such Shareholder or (iv) the mutual
agreement of the parties hereto. In the event this Agreement is terminated, this
Agreement shall immediately become void, there shall be no liability under this
Agreement on the part of Purchaser, its officers or directors or the
Shareholders, and all rights and obligations of the parties to this Agreement
shall cease and be of no further legal effect, except that nothing herein shall
relieve any party from any liabilities or damages arising out of its material
breach of this Agreement.
SECTION 4.2. Expenses. Except as otherwise expressly set forth herein, all
fees, costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such fees,
costs and expenses.
SECTION 4.3. Notice. All notices and other communications given hereunder
shall be in writing and shall be deemed given (i) when delivered if delivered
personally, (ii) when receipt is acknowledged by an affirmative act of the party
receiving notice, if telecopied, or (iii) three business days after being
mailed, if mailed by registered or certified mail (return receipt requested).
Notices and other communications to the parties will be sent to the following
addresses (or at such other address for a party as shall be specified by like
notice):
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(a) if to Purchaser and Sub:
Patriot Holding Corp.
3700 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402
Attention: Van Zandt Hawn
Facsimile: (612) 338-2860
With a copy to:
Dorsey & Whitney LLP
50 South Sixth Street, Suite 1500
Minneapolis, MN 55402
Attention: Robert A. Rosenbaum, Esq.
Facsimile: (612) 340-7800
(b) if to Seller:
Transport Corporation of America, Inc.
1715 Yankee Doodle Road
Eagan, Minnesota 55121
Attention: Special Committee of the Board of Directors
Facsimile: 651-994-5728
With a copy to:
Robins, Kaplan, Miller & Ciresi L.L.P.
2800 LaSalle Plaza
800 LaSalle Avenue
Minneapolis, Minnesota 55402
Attention: John R. Houston, Esq.
Facsimile: (612) 339-4181
(c) if to a Shareholder, at the address set forth below
such Shareholder's name on Schedule I hereto.
SECTION 4.4. Counterparts. This Agreement may be executed via facsimile in
two or more counterparts, each of which, when executed, shall be deemed to be an
original and all of which together shall constitute one and the same document.
SECTION 4.5. Governing Law; Venue. This Agreement shall be governed by and
construed in accordance with the laws of the State of Minnesota, without giving
effect to the principles of conflicts of laws thereof. Each party submits to the
exclusive jurisdiction of the courts of competent jurisdiction in the State of
Minnesota in respect of any action or proceeding relating to this Agreement. The
parties agree not to raise any objection to the venue of any proceedings in any
such court, including the objection that the proceedings have been brought in an
inconvenient forum.
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SECTION 4.6. Specific Performance. Each Shareholder acknowledges that if
such Shareholder fails to perform any of its obligations under this Agreement,
immediate and irreparable harm or injury would be caused to Purchaser and Sub
for which money damages would not be an adequate remedy. In such event, each
Shareholder agrees that Purchaser and Sub shall have the right, in addition to
any other rights either party may have, to specific performance of this
Agreement. Accordingly, if Purchaser and Sub should institute an action or
proceeding seeking specific enforcement of the provisions hereof, each
Shareholder hereby waives the claim or defense that Purchaser and Sub have an
adequate remedy at law and hereby agrees not to assert in any such action or
proceeding the claim or defense that such a remedy at law exists. Each
Shareholder further agrees to waive any requirements for the securing or posting
of any bond in connection with obtaining any such equitable relief.
SECTION 4.7. Maximum Shares Subject to Agreement. Notwithstanding anything
to the contrary in this Agreement, nothing in this Agreement shall be construed
as (a) requiring the Shareholders to vote their Subject Shares representing
collectively in the aggregate more than 5.3% of the issued and outstanding
shares of Seller Common Stock in favor of the approval and adoption of the
Merger Agreement and the approval of the Merger and the transactions
contemplated by the Merger Agreement or (b) constituting acceptance by Van Zandt
Hawn and Joseph M. Heinen of any Proxy under Section 2.2 above with respect to
the Shareholders' Subject Shares representing collectively in the aggregate more
than 5.3% of the issued and outstanding shares of Seller Common Stock. In the
event that the aggregate number of Subject Shares held by the Shareholders
exceeds 5.3% of the issued and outstanding shares of Seller Common Stock, then
each Shareholder agrees to vote, or cause to be voted, to the extent not voted
by Purchaser as appointed by the Proxy, a Proportionate Share of its Subject
Shares in favor of the approval and adoption of the Merger Agreement and the
approval of the Merger and the transactions contemplated by the Merger
Agreement. The "Proportionate Share" for each Shareholder shall be equal to the
product of (i) the number of shares representing 5.3% of the issued and
outstanding shares of Seller Common Stock, multiplied by (ii) the quotient of
the number of Subject Shares held by such Shareholder divided by the aggregate
number of Subject Shares held by all of the Shareholders.
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IN WITNESS WHEREOF, Purchaser, Sub, Seller and each Shareholder have caused
this Agreement to be executed as of the date first written above.
PATRIOT HOLDING CORP.
By: /s/ Van Zandt Hawn
------------------------------------
Name: Van Zandt Hawn
Title: President
PATRIOT ACQUISITION CORP.
By: /s/ Van Zandt Hawn
------------------------------------
Name: Van Zandt Hawn
Title: President
TRANSPORT CORPORATION OF
AMERICA, INC.
By: /s/ Michael J. Paxton
------------------------------------
Name: Michael J. Paxton
Title: Chairman, President and
Chief Executive Officer
/s/ Anton J. Christianson
----------------------------------------
Anton J. Christianson
/s/ Thomas R. McBurney
----------------------------------------
Thomas R. McBurney
/s/ William P. Murnane
----------------------------------------
William P. Murnane
/s/ Charles M. Osborne
----------------------------------------
Charles M. Osborne
/s/ Michael J. Paxton
----------------------------------------
Michael J. Paxton
/s/ Kenneth J. Roering
----------------------------------------
Kenneth J. Roering
/s/ William D. Slattery
----------------------------------------
William D. Slattery
SCHEDULE I
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AGGREGATE NUMBER OF SHARES
NAME AND ADDRESS OF STOCK OPTIONS EXERCISABLE OF SELLER COMMON STOCK (ON
SHAREHOLDER SELLER COMMON STOCK FOR SELLER COMMON STOCK A FULLY DILUTED BASIS)
- ------------------- ------------------- ------------------------- --------------------------
Anton J. Christianson 34,292 24,000 58,292
Thomas R. McBurney 0 8,000 8,000
William P. Murnane 0 16,000 16,000
Charles M. Osborne 10,000 8,000 18,000
Michael J. Paxton 16,211 310,000 326,211
Kenneth J. Roering 83,900 20,000 103,900
William D. Slattery 24,000 20,000 44,000