EXHIBIT 2.3
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"), Rutabaga Capital Management
LLC, a Delaware limited liability company ("Rutabaga"), Wasatch Advisors, Inc.,
a Utah corporation, as investment adviser to the Wasatch Small Cap Value Fund, a
series of Wasatch Funds, Inc., a Minnesota corporation ("Wasatch SCV"), and
Wasatch Advisors, Inc., a Utah corporation, for various separate accounts
("Wasatch Separate Accounts" and together with Rutabaga and Wasatch SCV, the
"Investment Advisers" and each an "Investment Adviser").
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 Investment Adviser beneficially owns
(as such term is defined pursuant to Rule 13d-3(a) promulgated under the
Exchange Act) as an investment adviser with proxy voting privileges 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 Investment Adviser's name on Schedule I hereto (all shares so beneficially
owned by such Investment Adviser from time to time, together with such shares
for which beneficial ownership may hereafter be acquired by such Investment
Adviser 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 Investment Adviser'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 Investment Adviser enter
into this Agreement;
WHEREAS, in order to induce Purchaser to enter into the Merger Agreement,
Rutabaga is willing to enter into this Agreement to vote up to a maximum of
325,150 of its Subject Shares ("Rutabaga Threshold") in favor of the approval
and adoption of the Merger Agreement and the approval of the Merger on the terms
and conditions set forth herein; and
WHEREAS, in order to induce Purchaser to enter into the Merger Agreement,
Wasatch SCV is willing to enter into this Agreement to vote up to a maximum of
392,442 of its Subject Shares ("Wasatch SCV Threshold") in favor of the approval
and adoption of the Merger Agreement and the approval of the Merger on the terms
and conditions set forth herein.
WHEREAS, in order to induce Purchaser to enter into the Merger Agreement,
Wasatch Separate Accounts is willing to enter into this Agreement to vote up to
a maximum of 230,456 of its Subject Shares ("Wasatch Separate Accounts
Threshold") in favor of the approval and adoption of the Merger Agreement and
the approval of the Merger on the terms and conditions set forth herein.
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 Investment Advisers 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 of the Merger Agreement 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 of Rutabaga, Wasatch
SCV and Wasatch Separate Accounts hereby agrees to vote, or cause to be voted,
to the extent not voted by Purchaser as appointed by the Proxy, provided that
there has been no Change in Recommendation (as defined in the Merger Agreement),
all of its Subject Shares up to the Rutabaga Threshold, Wasatch SCV Threshold
and Wasatch Separate Accounts Threshold, respectively, 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.
2
Each Investment Adviser 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. Provided that there has been no Change in
Recommendation (as defined in the Merger Agreement), each of Rutabaga, Wasatch
SCV and Wasatch Separate Accounts hereby constitutes and appoints during the
Term 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 its Subject Shares up to the Rutabaga Threshold, the Wasatch SCV
Threshold and the Wasatch Separate Accounts Threshold, respectively, 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
Investment Adviser understands and acknowledges that Purchaser and Sub have
entered into the Merger Agreement in reliance upon each Investment Adviser'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 of Rutabaga, Wasatch SCV and Wasatch Separate Accounts
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 its
Subject Shares up to the Rutabaga Threshold, the Wasatch SCV Threshold and the
Wasatch Separate Accounts Threshold, respectively, with respect to the matters
set forth in Section 2.1 during the Term in accordance with the terms of this
Agreement.
THE FOREGOING PROXY AND POWER OF ATTORNEY ARE
IRREVOCABLE AND COUPLED WITH AN INTEREST THROUGHOUT THE TERM.
SECTION 2.3. Limitation. Each Investment Adviser shall retain at all times
the right to vote such Investment Adviser's Subject Shares in such Investment
Adviser'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 Investment
Advisers are executing this Agreement solely in their capacity as investment
advisers with respect to the Subject Shares. Nothing contained in this Agreement
shall limit or otherwise affect, in any manner, the conduct or exercise of the
Investment Advisers' fiduciary duties as investment advisers to their clients or
as otherwise required under applicable law.
SECTION 2.5. Transfer of Subject Shares. Except as otherwise prohibited by
this Section 2.5 below, each Investment Adviser may 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
Investment Adviser's Subject Shares, or any interest therein. Notwithstanding
the foregoing, each of Rutabaga, Wasatch SCV and Wasatch Separate Accounts
agrees that it shall not, directly or indirectly, without the prior written
consent of Purchaser, which may be withheld in its sole discretion:
3
(a) 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 unless it shall retain a number of shares equal to the
lesser of (i) the number of shares held by it or (ii) the Rutabaga Threshold,
Wasatch SCV Threshold or the Wasatch Separate Accounts Threshold, respectively,
outside the purview of any such proxy, power, voting trust or voting agreements;
(b) take any action that would reasonably be expected to have the effect of
preventing or disabling such Investment Adviser from performing its obligations
under this Agreement or making any representation or warranty of such contained
in this Agreement untrue or incorrect; provided, however, that nothing herein
shall restrict either of the Investment Adviser's ability to (i) 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
Investment Adviser's Subject Shares, or any interest therein, or (ii) respond to
capital calls, transfers or terminations requested by its clients or the
exercise of its fiduciary duties pursuant to Section 2.4 above; or
(c) enter into any agreement or arrangement providing for any of the
actions described in clause (a) or (b) above.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Each Investment Adviser 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 (as such term is defined pursuant to Rule
13d-3(a) promulgated under the Exchange Act) by such Investment Adviser as an
investment adviser with proxy voting privileges as of the date of this
Agreement.
(b) Such Investment Adviser has all requisite legal capacity, power and
authority to enter into and perform all of its obligations under this Agreement
subject only to the ongoing rights of each Investment Adviser's clients to
exercise or delegate proxy voting authority. This Agreement has been duly and
validly executed and delivered by such Investment Adviser and when duly and
validly executed and delivered by Purchaser and Sub will constitute a valid and
binding agreement of such Investment Adviser, 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.
4
SECTION 3.2. Each of Purchaser, Sub and Seller hereby, severally and not
jointly, represents and warrants to Rutabaga, Wasatch SCV and Wasatch Separate
Accounts that (a) it has all requisite legal capacity, power and authority to
enter into and perform all of its obligations under this Agreement (b) this
Agreement has been duly and validly executed and delivered by it and when duly
and validly executed and delivered by it, this Agreement will constitute a valid
and binding agreement of it, enforceable against it in accordance with the
Agreement's 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.
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 Investment
Adviser without the prior written consent of such Investment Adviser, (iv) the
mutual agreement of the parties hereto, (v) the valid exercise of the Investment
Advisers' fiduciary duties as investment advisers to their clients or as
otherwise required under applicable law in accordance with Section 2.4 herein,
or (vi) the termination of any other voting agreement entered into by Purchaser,
Sub and Seller with any shareholder of Seller. 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 Investment Advisers, 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. Purchaser and Sub shall, jointly and severally,
reimburse each of the Investment Advisers for reasonable out-of-pocket expenses
incurred by the Investment Advisers in connection with the review of this
Agreement by counsel to each of the Investment Advisers. All other 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):
5
(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
c/o William D. Slattery
Facsimile: (651) 994-5728
With a copy to:
Robins, Kaplan, Miller & Ciresi L.L.P.
280 LaSalle Plaza
800 LaSalle Avenue
Minneapolis, Minnesota 55402
Attention: John R. Houston, Esq.
Facsimile: (612) 339-4181
(c) if to an Investment Adviser, at the address set forth
below such Investment Adviser'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.
6
SECTION 4.6. Specific Performance. Each Investment Adviser acknowledges
that if such Investment Adviser 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 Investment Adviser 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 Investment Adviser 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 Investment Adviser 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 (i) requiring Rutabaga to vote its Subject Shares representing more than
4.96% of the issued and outstanding shares of Seller Common Stock, (ii)
requiring Wasatch SCV to vote its Subject Shares representing more than 5.98% 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 , (iii) requiring Wasatch
Separate Accounts to vote its Subject Shares representing more than 3.51% 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 (iv) constituting
acceptance by Van Zandt Hawn and Joseph M. Heinen of any Proxy under Section 2.2
above with respect to Rutabaga's Subject Shares representing more than 4.96% of
the issued and outstanding shares of Seller Common Stock, Wasatch SCV's Subject
Shares representing more than 5.98% of the issued and outstanding shares of
Seller Common Stock or Wasatch Separate Accounts' Subject Shares representing
more than 3.51% of the issued and outstanding shares of Seller Common Stock.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, Purchaser, Sub, Seller and each Investment Adviser 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
RUTABAGA CAPITAL MANAGEMENT LLC
By: /s/ N. Carter Neubold IV
------------------------------------
Name: N. Carter Neubold IV
Title: Member
WASATCH ADVISORS, INC.
as investment adviser to the Wasatch Small Cap
Value Fund, a series of Wasatch Funds, Inc.
By: /s/ Samuel S. Stewart
------------------------------------
Name: Samuel S. Stewart
Title: Chairman and CEO
WASATCH ADVISORS, INC.
as investment adviser for various separate accounts
By: /s/ Samuel S. Stewart
------------------------------------
Name: Samuel S. Stewart
Title: Chairman and CEO
SCHEDULE I
----------
NAME AND ADDRESS OF INVESTMENT ADVISER SELLER COMMON STOCK
- -------------------------------------- -------------------
Rutabaga Capital Management 325,150
64 Broad Street
3rd Floor
Boston, MA
02109
Wasatch Advisors, Inc., as investment 392,442
adviser to the Wasatch Small Cap
Value Fund, a series of Wasatch
Funds, Inc.
150 Social Hall Avenue
Suite 400
Salt Lake City, UT
84111
Wasatch Advisors, Inc. for various 230,456
separate accounts
150 Social Hall Avenue
Suite 400
Salt Lake City, UT
84111