exv10w2



 






EXHIBIT 10.2




STOCKHOLDER VOTING AGREEMENT




     STOCKHOLDER VOTING AGREEMENT, dated as of November 9, 2005 (the “Agreement”), among Marshall &
Ilsley Corporation, a Wisconsin corporation (the “Company”) and the persons listed on Schedule I
hereto (each a “Stockholder” and, collectively, the “Stockholders”).



R E C I T A L S:




     WHEREAS, concurrently with the execution and delivery of this Agreement, the Company and Gold
Banc Corporation, Inc., a Kansas corporation (the “Seller”), are entering into an Agreement and
Plan of Merger (the “Merger Agreement”), which provides, among other things, for the merger of
Seller with and into the Company (the “Merger”), all on the terms and subject to the conditions set
forth in the Merger Agreement; and



     WHEREAS, as an inducement and a condition to entering into the Merger Agreement, the Company
has required that the Stockholders agree, and each Stockholder has agreed, to enter into this
Agreement;



     NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements set
forth herein, the parties hereto agree as follows:



     1. Definitions. Terms used and not defined herein, but defined in the Merger
Agreement, shall have the respective meanings ascribed to them in the Merger Agreement.



     2. Voting.




     (a) Each Stockholder shall, at any meeting of the Stockholders of the Seller, however
called, or in connection with any written consent of the Stockholders of the Seller, vote
(or cause to be voted) all Shares then held of record or beneficially owned by such
Stockholder (to the extent the Stockholder has the sole right to vote or direct the voting
of such Shares) and use his reasonable best efforts to vote (or cause to be voted) all
Shares then held of record or beneficially owned by such Stockholder (to the extent the
Stockholder has the shared right to vote or direct the voting of such Shares), (i) in favor
of the Merger, the execution and delivery by the Seller of the Merger Agreement and the
approval of the terms thereof and each of the other actions contemplated by the Merger
Agreement and this Agreement and any actions required in furtherance thereof and hereof and
(ii) against any proposal relating to a Acquisition Proposal and against any action or
agreement that would impede, frustrate, prevent or nullify this Agreement,
or result in a breach in any respect of any covenant, representation or warranty or any
other obligation or agreement of the Seller under the Merger Agreement or which would result
in any of the conditions set forth in Article VII of the Merger Agreement not being
fulfilled.




     (b) Each Stockholder hereby covenants and agrees that, except as contemplated by this
Agreement and the Merger Agreement, it shall not (i) offer to transfer (which term













 






shall
include, without limitation, any sale, tender, gift, pledge, assignment or other
disposition), transfer or consent to any transfer of, any or all of the Shares beneficially
owned by such Stockholder (to the extent the Stockholder has the right to dispose of or
direct the disposition of such Shares) or any interest therein without the prior written
consent of the Company, such consent not to be unreasonably withheld in the case of a gift
or similar estate planning transaction (it being understood that the Company may decline to
consent to any such transfer if the person acquiring such Shares does not agree to take such
Shares subject to the terms of this Agreement) or any transfer of Shares in which the
Stockholder retains the sole power to vote or direct the voting of such transferred Shares,
except any transfer of Shares to another Stockholder, any sale or surrender of Shares to pay
the exercise price of any Company stock option or to pay taxes or satisfy the Company’s
withholding obligation with respect to any taxes resulting from such exercise or the
forfeiture of restricted stock, (ii) enter into any contract, option or other agreement or
understanding with respect to any transfer of any or all of such Shares or any interest
therein except as permitted in clause (i), (iii) grant any proxy, power-of-attorney or other
authorization or consent in or with respect to such Shares except to vote the Shares in
accordance with the terms of this Agreement, (iv) deposit such Shares into a voting trust or
enter into a voting agreement or arrangement with respect to such Shares, or (v) subject to
Section 6 hereof, take any other action that would make any representation or warranty of
such Stockholder contained herein untrue or incorrect in any material respect or in any way
restrict, limit or interfere in any material respect with the performance of its obligations
hereunder or the transactions contemplated hereby or by the Merger Agreement




     (c) Subject to Section 6 hereof, each Stockholder hereby agrees that such Stockholder
(i) shall not, directly or indirectly, encourage, solicit, initiate or participate in any
way in any discussions or negotiations with, or provide any information to, or afford any
access to the properties, books or records of the Seller or any Seller Subsidiaries to, or
otherwise take any other action to assist or facilitate, any person or group (other than the
Company or any affiliate or associate of the Company) concerning any Acquisition Proposal,
(ii) upon execution of this Agreement, will immediately cease any existing activities,
discussions or negotiations conducted heretofore with respect to any Acquisition Proposal,
and (iii) will immediately communicate to the Company the terms of any Acquisition Proposal
(or any discussion, negotiation or inquiry with respect thereto) and the identity of the
person making such Acquisition Proposal or inquiry which it may receive.




     (d) Subject to the terms and conditions of this Agreement, each of the parties hereto
agrees to use all reasonable efforts to take, or cause to be taken, all actions, and to do,
or cause to be done, all things necessary, proper or advisable under applicable laws to
consummate and make effective the transactions contemplated by this Agreement. Each
party shall promptly consult with the other and provide any necessary information and
material with respect to all filings made by such party with any Governmental Authority in
connection with this Agreement and the transactions contemplated hereby.




     (e) To the extent permitted by applicable law, each Stockholder hereby waives any
rights of appraisal or rights to dissent from the Merger that it may have.



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     3. Representations and Warranties of Each Stockholder. Each Stockholder hereby
represents and warrants, severally and not jointly, to the Company as follows:




     (a) Such Stockholder owns individually and beneficially the Shares set forth opposite
his name on Schedule I. Such Shares constitute all of the shares owned individually and
beneficially by such Stockholder on the date hereof. Such Stockholder has sole voting power
and sole power to issue instructions with respect to the matters set forth in Section 2
hereof, sole power of disposition, sole power to demand and waive appraisal rights and sole
power to agree to all of the matters set forth in this Agreement, in each case with respect
to all of such Shares listed in Schedule I (except restricted stock) with no limitations,
qualifications or restrictions on such rights, subject to applicable securities laws and the
terms of this Agreement.




     (b) Such Stockholder has the power and authority to enter into and perform all of such
Stockholder’s obligations under this Agreement. This Agreement has been duly and validly
executed and delivered by such Stockholder and constitutes a legal, valid and binding
agreement of such Stockholder, enforceable against such Stockholder in accordance with its
terms, except in each case as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect and subject to
the limitations imposed by general equitable principles, regardless of whether such
enforceability is considered in a proceeding at law or in equity. There is no beneficiary
or holder of a voting trust certificate or other interest of any trust of which such
Stockholder is a trustee, or any party to any other agreement or arrangement, whose consent
is required for the execution and delivery of this Agreement or the consummation by such
Stockholder of the transactions contemplated thereby.




     (c)(i) Except as may be required under applicable securities laws, no filing with, and
no permit, authorization, consent or approval of, any Governmental Authority is necessary
for the execution and delivery of this Agreement by such Stockholder, the consummation by
such Stockholder of the transactions contemplated hereby and the compliance by such
Stockholder with the provisions hereof and (ii) none of the execution and delivery of this
Agreement by such Stockholder, the consummation by such Stockholder of the transactions
contemplated hereby or compliance by such Stockholder with any of the provisions hereof,
except in cases in which any conflict, breach, default or violation described below would
not interfere with the ability of such Stockholder to perform such Stockholder’s obligations
hereunder, shall (A) conflict with or result in any breach of any organizational documents
applicable to such Stockholder, (B) result in a violation or breach of, or constitute (with
or without notice or lapse of time or both) a default (or give rise to any third party right
of termination, cancellation, modification or
acceleration) under, any of the terms, conditions or provisions of any note, loan
agreement, bond, mortgage, indenture, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation of any kind, including, without
limitation, any voting agreement, proxy arrangement, pledge agreement, stockholders
agreement or voting trust, to which such Stockholder is a party or by which it or any of its
properties or assets may be bound or (C) violate any order, writ, injunction, decree,
judgment, order, statute, rule or regulation applicable to such Stockholder or any of its
properties or assets.



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     (d) Except as permitted by this Agreement, the Shares beneficially owned by such
Stockholder and the certificates representing such shares are now, and at all times during
the term hereof will be, held by such Stockholder, or by a nominee or custodian for the
benefit of such Stockholder, free and clear of all liens, proxies, voting trusts or
agreements, understandings or arrangements or any other rights whatsoever, except for any
such liens or proxies arising hereunder.



     4. Stop Transfer. Each Stockholder shall request that the Seller not register the
transfer (book-entry or otherwise) of any certificate or uncertificated interest representing any
of the Shares beneficially owned by such Stockholder, unless such transfer is made in compliance
with this Agreement.



     5. Termination. This Agreement shall terminate, and none of the Stockholders or the
Company shall have any further rights or obligations hereunder, upon the earliest of (a) the
Effective Time or (b) the termination of the Merger Agreement. The representations and warranties
of the Stockholders hereunder shall not survive the termination of this Agreement.



     6. No Limitation. Notwithstanding any other provision hereof, nothing in this
Agreement shall be construed to prohibit a Stockholder, or any officer or affiliate of a
Stockholder who is or has been designated a member of the Board of Directors or an officer of the
Seller, from taking any action solely in his or her capacity as a member of the Board of Directors
or as an officer of the Seller or from exercising his or her fiduciary duties as a member of such
Board of Directors or as an officer to the extent specifically permitted by the Merger Agreement.



     7. Miscellaneous.




     (a) This Agreement constitutes the entire agreement between the parties with respect
to the subject matter hereof and supersedes all other prior agreements and understandings,
both written and oral, between the parties with respect to the subject matter hereof.




     (b) This Agreement shall not be assigned by operation of law or otherwise without the
prior written consent of each Stockholder (in the case of any assignment by the Company) or
the Company (in the case of an assignment by a Stockholder), provided that the Company may
assign its rights and obligations hereunder to any Company Subsidiary, but no such
assignment shall relieve the Company of its obligations hereunder.




     (c) Without limiting any other rights the Company may have hereunder in respect of any
transfer of Shares, each Stockholder agrees that this Agreement and the obligations
hereunder shall attach to the Shares owned of record by such Stockholder and shall be
binding upon any person to which legal ownership of such Shares shall pass, whether by
operation of law or otherwise, including, without limitation, such Stockholder’s heirs,
guardians, administrators or successors.



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     (d) This Agreement may not be amended, changed, supplemented or otherwise modified
with respect to a Stockholder except by an instrument in writing signed on behalf of such
Stockholder and the Company.




     (e) All notices, requests, claims, demands and other communications hereunder shall be
in writing and shall be given (and shall be deemed to have been duly received if given) by
hand delivery or by facsimile transmission with confirmation of receipt, as follows:


If to a Stockholder:


At the addresses and facsimile numbers set forth on Schedule I hereto.


With a copy to:


Stinson Morrison Hecker LLP

1201 Walnut, Suite 2900

Kansas City, MO 64106-215

Attention: John A. Granda

Facsimile: (816) 691-3495


If to the Company:


Marshall & Ilsley Corporation

770 North Water Street

Milwaukee, WI 53202

Attention: Randall J. Erickson

Facsimile: (414) 765-7899


With a copy to:


Godfrey & Kahn, S.C.

780 North Water Street

Milwaukee, WI 53202-3590

Attention: Christopher B. Noyes

               Dennis F. Connolly

Facsimile: (414) 273-5198




or to such other address or facsimile number as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.




     (f) Whenever possible, each provision or portion of any provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable law but if
any provision or portion of any provision of this Agreement is held to be invalid, illegal
or unenforceable in any respect under any applicable law or rule in any jurisdiction such
invalidity, illegality or unenforceability will not affect any other provision or portion of
any provision in such jurisdiction, and this Agreement will be



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reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or unenforceable provision or
portion of any provision had never been contained herein.




     (g) All rights, powers and remedies provided under this Agreement or otherwise
available in respect hereof at law or in equity shall be cumulative and not alternative, and
the exercise of any thereof by any party shall not preclude the simultaneous or later
exercise of any other such right, power or remedy by such party.




     (h) The failure of any party hereto to exercise any right, power or remedy provided
under this Agreement or otherwise available in respect hereof at law or in equity, or to
insist upon compliance by any other party hereto with its obligations hereunder, and any
custom or practice of the parties at variance with the terms hereof, shall not constitute a
waiver by such party of its right to exercise any such or other right, power or remedy or to
demand such compliance.




     (i) 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 confer upon any
other person any rights or remedies of any nature whatsoever under or by reason of this
Agreement.




     (j) Except to the extent that the laws of the State of Kansas are mandatorily
applicable to the matters arising under or in connection with this Agreement, this Agreement
shall be governed by, and construed in accordance with, the laws of the State of Wisconsin.




     (k) The parties agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their specific terms or
were otherwise breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any Wisconsin state court located in the City
of Milwaukee or any Federal court located in the Eastern District of Wisconsin, this being
in addition to any other remedy to which they are entitled at law or in equity. In
addition, each of the parties hereto (A) consents to submit itself to the personal
jurisdiction of any Wisconsin state court located in the City of Milwaukee or any Federal
court located in the Eastern District of Wisconsin in the event any dispute arises out of
this Agreement or any transaction contemplated by this Agreement, (B) agrees that it will
not attempt to deny or defeat such personal jurisdiction by motion or other request for
leave from any such court and (C) agrees that it will not bring any action relating to this
Agreement or any transaction contemplated by this Agreement in any court other than any such
court. The parties irrevocably and unconditionally waive any objection to the laying of
venue of any action, suit or proceeding arising out of this
Agreement or the transactions contemplated hereby in the courts of the State of
Wisconsin located in the City of Milwaukee or in any Federal court located in the Eastern
District of Wisconsin, and hereby further irrevocably and unconditionally waive and agree
not to plead or claim in any such court that any such action, suit or proceeding brought in
any such court has been brought in a inconvenient forum.



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     (l) The descriptive headings used herein are inserted for convenience of reference
only and are not intended to be part of or to affect the meaning or interpretation of this
Agreement.




     (m) This Agreement may be executed in counterparts (by fax or otherwise), each of
which shall be deemed to be an original, but all of which, taken together, shall constitute
one and the same agreement.




     (n) All representations, warranties, covenants, agreements, liabilities and
obligations of each Stockholder hereunder or in connection with the transactions
contemplated hereby shall be several and not joint.




     (o) Except as otherwise provided herein, each party shall pay its, his or her own
expenses incurred in connection with this Agreement.




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     IN WITNESS WHEREOF, the Company and the Stockholders have caused this Agreement to be duly
executed in multiple counterparts as of the day and year first above written.



	 	 	 	 	 
	 	 	MARSHALL & ILSLEY CORPORATION
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Dennis J. Kuester
	 

	 	 	 	 
	 

	 	 	 	Dennis J. Kuester, Chief Executive Officer






	 	 	 
	 

	 	STOCKHOLDERS:
	 
	 	 
	 

	 	/s/ Malcolm M. Aslin
	 

	 	 
	 

	 	Malcolm M. Aslin
	 
	 	 
	 

	 	/s/ Richard J. Tremblay
	 

	 	 
	 

	 	Richard J. Tremblay
	 
	 	 
	 

	 	/s/ Donald C. McNeill
	 

	 	 
	 

	 	Donald C. McNeill
	 
	 	 
	 

	 	/s/ J. Gary Russ
	 

	 	 
	 

	 	J. Gary Russ
	 
	 	 
	 

	 	/s/ Allen D. Petersen
	 

	 	 
	 

	 	Allen D. Petersen
	 
	 	 
	 

	 	/s/ William Randon
	 

	 	 
	 

	 	William Randon
	 
	 	 
	 

	 	/s/ D. Patrick Curran
	 

	 	 
	 

	 	D. Patrick Curran
	 
	 	 
	 

	 	/s/ Daniel P. Connealy
	 

	 	 
	 

	 	Daniel P. Connealy
	 
	 	 
	 

	 	/s/ Robert J. Gourley
	 

	 	 
	 

	 	Robert J. Gourley
	 
	 	 
	 

	 	/s/ Jerry L. Neff
	 

	 	 
	 

	 	Jerry L. Neff






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SCHEDULE I




	 	 	 	 	 
	Name of Stockholder	 	No. of Shares of Seller Common Stock
	 
	Malcolm M. Aslin
	 	 	 	 
	6415 High Drive
	 	 	 	 
	Mission Hills, Kansas 66208
	 	 	 	 
	Facsimile: 913-491-0728

	 	 	158,389	 
	 
	 	 	 	 
	Richard J. Tremblay
	 	 	 	 
	12729 Grandview
	 	 	 	 
	Overland Park, Kansas 66213
	 	 	 	 
	Facsimile: 913-307-2469

	 	 	93,824	 
	 
	 	 	 	 
	Donald C. McNeill
	 	 	 	 
	1601 Southeast 19th
	 	 	 	 
	Edmond, Oklahoma 73013
	 	 	 	 
	Facsimile: 405-359-1875

	 	 	-0-	 
	 
	 	 	 	 
	J. Gary Russ
	 	 	 	 
	16500 Singletary Road
	 	 	 	 
	Myakka City, Florida 34251
	 	 	 	 
	Facsimile: 941-322-2943

	 	 	169,814	 
	 
	 	 	 	 
	Allen D. Petersen
	 	 	 	 
	5129 Crane Point Court
	 	 	 	 
	Edgewood, Florida 32839

	 	 	68,900	 
	 
	 	 	 	 
	William Randon
	 	 	 	 
	70 Barnegat Road
	 	 	 	 
	New Cannan, Connecticut 06840
	 	 	 	 
	Facsimile: 203-966-8645

	 	 	322,956	 
	 
	 	 	 	 
	D. Patrick Curran
	 	 	 	 
	6620 Wenonga Terrace
	 	 	 	 
	Shawnee Mission, Kansas 66208
	 	 	 	 
	Facsimile: 816-756-5552

	 	 	103,552	 
	 
	 	 	 	 
	Daniel P. Connealy
	 	 	 	 
	2108 West 114th Street
	 	 	 	 
	Leawood, Kansas 66211
	 	 	 	 
	Facsimile: 816-756-5552

	 	 	15,000	 
	 
	 	 	 	 
	Robert J. Gourley
	 	 	 	 
	25701 E. Milton Thompson Road
	 	 	 	 
	Lee’s Summit, MO 64086
	 	 	 	 
	Facsimile: 816-524-0616

	 	 	20,328	 
	 
	 	 	 	 
	Jerry L. Neff
	 	 	 	 
	4502 Cortez Road West
	 	 	 	 
	Bradenton, Florida 34210
	 	 	 	 
	Facsimile: 941-798-3712

	 	 	12,000