AGREEMENT TO VOTE IN FAVOR
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This AGREEMENT TO VOTE IN FAVOR (this "Agreement") is between the
undersigned stockholders ("Stockholders") of Landmark Financial Corp., a
Delaware corporation ("Landmark"), and TrustCo Bank Corp NY, a New York
corporation ("TrustCo").
RECITALS
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A. TrustCo and Landmark are entering into that certain Agreement and Plan
of Merger, of even date herewith (the "Merger Agreement"), pursuant to which a
newly chartered subsidiary of TrustCo will merge with Landmark (the "Merger").
The Merger Agreement has been approved by the Board of Directors of Landmark,
and, pursuant to the laws of the State of Delaware, the Merger and the Merger
Agreement will be submitted to the stockholders of Landmark for their approval.
B. The Stockholders are currently the owners and holders of a substantial
number of issued and outstanding shares of common stock of Landmark entitled to
vote upon approval of the Merger and the Merger Agreement.
C. TrustCo, in consideration of the time, effort, money and resources which
it will expend in furtherance of the transactions contemplated by the Merger
Agreement, desires to obtain the agreement of the Stockholders to vote for
approval and adoption of the Merger Agreement, to vote against any competing
proposal or offer to acquire Landmark, and to refrain from soliciting or
initiating any competing proposal or offer to acquire Landmark, all on the terms
and conditions set forth herein.
D. The Stockholders, in order to induce TrustCo to pursue the Merger and
enter into the Merger Agreement, and to assure the Stockholders of the potential
benefits of the proposed Merger, wish to vote for approval and adoption of the
Merger and the Merger Agreement upon the terms and conditions set forth herein.
AGREEMENT
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NOW THEREFORE, it is agreed as follows:
Section 1. Agreement to Vote. The Stockholders shall vote all shares of
Landmark common stock currently owned or controlled by them (the number of such
Shares owned by each Stockholder being set forth on Exhibit A hereto), plus any
additional shares which the Stockholders may own or control as of the date of
the Landmark Shareholders' Meeting (as defined in the Merger Agreement) and
which the Stockholders are entitled to vote (the "Shares") (i) in favor of
approving the Merger and approving and adopting the Merger Agreement at the
Landmark Shareholders' Meeting or at any adjournments or postponements of the
Landmark Shareholders' Meeting and (ii) against any proposal or offers from any
person relating to any merger, consolidation, business combination with, or any
equity interest in Landmark, or any acquisition or purchase of all or more than
ten percent (10.0%) of the assets or stock of Landmark. Notwithstanding the
foregoing, if a Stockholder controls the Shares by virtue of an agreement or
relationship which is fiduciary in nature, and such relationship or the terms of
such agreement make it such Stockholder's fiduciary responsibility to vote such
Shares other than as provided above, such Stockholder shall be free to do so.
Section 2. Restriction on Transfer of Shares. Until this Agreement
terminates pursuant to Section 4 below, the Stockholders shall not sell,
transfer, assign, or otherwise dispose of the Shares or
grant a proxy to vote the Shares to any person unless such assignee, transferee
or proxyholder enters into an agreement with TrustCo substantially in the form
of this Agreement.
Section 3. Stockholder's Warranty of Ownership. Each of the Stockholders
represents and warrants that (i) such Stockholder either is the record and
beneficial owner or controls the Shares set forth by his or her name on Exhibit
A (except with respect to any Shares which Stockholder does not own as of the
date of this Agreement but may acquire following the date of this Agreement and
which are included within the definition of Shares), (ii) such Stockholder has
full right, power, and authority to enter into and perform this Agreement, and
(iii) nothing in this Agreement will violate the terms of any other agreement
affecting the Shares.
Section 4. Termination. This Agreement shall terminate upon the earlier to
occur of (i) the termination of the Merger Agreement, and (ii) the consummation
of the Merger.
Section 5. Miscellaneous Provisions.
Section 5.01. Notice. All notices under this Agreement shall be in
writing and may be given by personal delivery, telecopier, overnight
express mail by a registered national air courier, or by registered mail.
Notice by personal delivery shall be deemed given upon actual receipt.
Notice by telecopier or overnight express mail shall be deemed given on the
date of actual receipt. Notice given by registered mail shall be deemed
given on the third business day following the date when the notice material
is deposited in the United States Mail, return receipt requested, addressed
to each Stockholder at his address shown below.
Section 5.02. Applicable Law. This Agreement and the rights and
obligations of the Stockholders and TrustCo under this Agreement shall be
governed, construed, and interpreted in accordance with the laws of the
State of New York, without reference to any choice of law provisions.
Section 5.03. Entire Agreement. This Agreement constitutes the entire
agreement between each Stockholder and TrustCo with respect to the subject
matter hereof. All prior oral understandings and memoranda expressing
agreements regarding the subject matter hereof between them are merged
herein and are extinguished hereby.
Section 5.04. Amendment. This Agreement may not be amended except
by a writing executed by the Stockholders and TrustCo.
Section 5.05. Assignability and Binding Effect. This Agreement
may not be assigned. This Agreement shall be binding upon and inure to
the benefit of the Stockholders and TrustCo and their respective
heirs, devises, legatees, personal representatives, agents and
successors.
Section 5.06. Counterparts. This Agreement may be executed by
TrustCo and the Stockholders on any number of separate counterparts,
and all such counterparts so executed constitute one agreement binding
on TrustCo and the Stockholders notwithstanding that TrustCo and each
of the Stockholders are not signatories to the same counterpart.
IN WITNESS WHEREOF, the Stockholders and TrustCo have executed this
Agreement as of this 21 day of February, 2000.
STOCKHOLDERS:
Name: Frederick W. Lee Name: Edward R. Jacksland
Address: Address:
Name: Gordon E. Coleman Name: John R. Francisco
Address: Address:
Name: F. Richard Ferraro Name: Frederick P. LaCoppola
Address: Address:
Name: Carl J. Rockefeller Name: Leila N. Salmon
Address: Address:
Name: Patricia A. Symolon Name: Paul Hoffman
Address: Address:
Name: H. Stuart Larson
Address:
TRUSTCO BANK CORP NY
By:
Name:
Title:
Address: 320 State Street
Schenectady, New York 12305
Exhibit A
Number
Name of Shares
Frederick W. Lee
Edward R. Jacksland
Gordon E. Coleman
John R. Francisco
F. Richard Ferraro
Frederick P. LaCoppola
Carl J. Rockefeller
Leila N. Salmon
Patricia A. Symolon
Paul Hofmann
H. Stuart Larson