EXHIBIT 9.1 FORM OF VOTING AGREEMENT
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is entered into on January 8,
2004, by and between Sky Financial Group, Inc., a financial holding company and
an Ohio corporation ("Sky"), and ______________________, a resident of the State
of Ohio (the "Control Shareholder").
WHEREAS, the Control Shareholder owns _____ Common Shares, without par
value (the "Common Shares"), of Second Bancorp Inc., an Ohio corporation and the
bank holding company of Second National Bank of Warren ("SBI") (all shares of
such stock now owned and which may hereafter be acquired by the Control
Shareholder prior to the termination of this Agreement, except Common Shares
held by the Control Shareholder in a fiduciary capacity, shall be referred to
herein as the "Control Shares"); and
WHEREAS, Sky and SBI propose to enter into an Agreement and Plan of
Merger, dated as of the date hereof (the "Merger Agreement"), which provides,
among other things, that SBI will merge with and into Sky pursuant to the Merger
(this and other capitalized terms used and not defined herein shall have the
meanings given to such terms in the Merger Agreement);
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereby agree as follows:
ARTICLE 1
VOTING OF CONTROL SHARES
1.1 Voting Agreement. The Control Shareholder hereby agrees that during
the time this Agreement is in effect, at any meeting of the shareholders of SBI,
however called, and in any action by consent of the shareholders of SBI, the
Control Shareholder shall vote the Control Shares: (i) in favor of the Merger
and the Merger Agreement (as amended from time to time) and (ii) against any
proposal for any recapitalization, merger, sale of assets or other business
combination between SBI and any person or entity other than Sky, or any other
action or agreement that would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of SBI under the
Merger Agreement or that would result in any of the conditions to the
obligations of SBI under the Merger Agreement not being fulfilled.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
The Control Shareholder hereby represents and warrants to Sky as
follows:
2.1 Authority Relative to this Agreement. The Control Shareholder
has all necessary power and authority or capacity, as the case may be, to
execute and deliver this Agreement, to perform his, her or its obligations
hereunder and to consummate the transaction contemplated hereby. This Agreement
has been duly and validly executed and delivered by the Control Shareholder and
constitutes a legal, valid and binding obligation of the Control Shareholder,
enforceable against the Control Shareholder in accordance with its terms.
2.2 No Conflict.
(a) The execution and delivery of this Agreement by the
Control Shareholder do not, and the performance of this Agreement by the Control
Shareholder will not (i) conflict with or violate any law, rule, regulation,
order, judgment or decree applicable to the Control Shareholder or by which the
Control Shares are bound, or (ii) result in any breach of or constitute a
default (or event that with notice or lapse of time or both would become a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of a lien or
encumbrance on any of the Control Shares pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license,
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permit, franchise or other instrument or obligation to which such Control
Shareholder is a party or by which such Control Shareholder or any Control
Shares are bound, except, in the case of clauses (i) and (ii), for any such
conflicts, violations, breaches, defaults or other occurrences which would not
prevent or delay the performance by the Control Shareholder of his, her or its
obligations under this Agreement.
(b) The execution and delivery of this Agreement by the
Control Shareholder do not, and the performance of this Agreement by the Control
Shareholder will not, require any consent, approval, authorization or permit of,
or filing with or notification to, any federal, state, local or foreign
regulatory body.
ARTICLE 3
MISCELLANEOUS
3.1 Termination. This Agreement shall terminate on the earlier to
occur of (i) the date of consummation of the Merger and (ii) the date of
termination of the Merger Agreement for any reason whatsoever.
3.2 Specific Performance. The Control Shareholder agrees that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that Sky shall be entitled
to specific performance of the terms hereof, in addition to any other remedy at
law or in equity.
3.3 Entire Agreement. This Agreement constitutes the entire
agreement between the parties and supersedes all prior agreements and
understandings with respect to the subject matter hereof.
3.4 Amendment. This Agreement may not be amended except by an
instrument in writing signed by all the parties hereto.
3.5 Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the fullest extent
possible.
3.6 Governing Law. This Agreement shall be governed by and
construed in accordance with the law of the State of Ohio.
3.7 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which shall
constitute one and the same agreement.
3.8 Assignments. This Agreement shall not be assigned by operation
of law or otherwise.
3.9 Parties in Interest. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto, and nothing in this Agreement,
express or implied, is intended to or shall confer upon any other person any
right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
3.10 Fiduciary Duty. Anything in this Agreement to the contrary
notwithstanding, this Agreement will not require the Control Shareholder to take
any action or omit to take any action if, after consultation with independent
legal counsel, the Control Shareholder determines in good faith that the action
or the failure to take such action would constitute, or could reasonably be
expected to constitute, a breach of the Control Shareholder's fiduciary duties
under applicable Ohio or federal law and SBI's Articles.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the day first written above.
"CONTROL SHAREHOLDER" SKY FINANCIAL GROUP, INC.
/s/ Marty E. Adams
____________________________
Name By: Marty E. Adams
Its: Chairman, President and CEO
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SCHEDULE OF SECOND BANCORP SHAREHOLDERS WITH VOTING AGREEMENTS WITH SKY
FINANCIAL
NAME: NUMBER OF SHARES:
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Cloyd J. Abruzzo 6,234
David A. Allen, Jr. 1,000
Thomas W. Allen 6,418
John A. Anderson 19,313
Diane C. Bastic 17,606
R. L. (Rick) Blossom 13,091
Lynette M. Cavalier 1,000
John L. Falatok 4,670
Myron Filarski 1,137
Norman C. Harbert 5,679
William R. Herzog 28,576
James R. Izant 435,191
Phyllis J. Izant 286,781
David L. Kellerman 4,982
Darryl E. Mast 10,522
R. Timothy Muhleman 3,957
John L. Pogue 2,788
Christopher Stanitz 9,176
George E. Stouffer 37,661
Raymond J. Wean, III 5,696
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TOTAL 901,478
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