EXHIBIT 99.11
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and entered into as of
June 29, 1998, by and between Liberty Mutual Insurance Company, a Massachusetts
mutual insurance company ("Liberty"), Summit Holding Southeast, Inc., a Florida
corporation ("Summit"), and the undersigned (the "Shareholder").
WHEREAS, the Shareholder desires that Liberty, Space Mountain Acquisition
Corp., a wholly owned subsidiary of Liberty ("Acquisition Sub"), and Summit
enter into an Agreement and Plan of Merger dated the date hereof (as the same
may be amended or supplemented, the "Merger Agreement") with respect to the
merger of Acquisition Sub with and into Summit (the "Merger"); and
WHEREAS, the Shareholder is executing this Agreement as an inducement to
Liberty to enter into and execute, and to cause Acquisition Sub to enter into
and execute, the Merger Agreement;
NOW, THEREFORE, in consideration of the execution and delivery by Liberty
and Acquisition Sub of the Merger Agreement and the mutual covenants, conditions
and agreements contained herein and therein, the parties agree as follows:
1. Representations and Warranties. The Shareholder represents and warrants
to Liberty as follows:
(a) The Shareholder is the record and beneficial owner of the number of
shares of common stock, $.01 par value per share, of Summit ("Summit Stock") set
forth below such Shareholder's name on the signature page hereof, which number
includes, without limitation, all shares of Summit Stock issuable to Shareholder
pursuant to options that have been granted to Shareholder pursuant to the Summit
Holding Southeast, Inc. 1996 Long-Term Incentive Plan. As set forth below the
Shareholder's name on the signature page hereof, (i) certain of the shares of
Summit Stock that are beneficially owned by the Shareholder are subject to this
Agreement (the "Shareholder's Shares"), and (ii) certain of the shares of Summit
Stock that are beneficially owned by the Shareholder are not subject to this
Agreement (the "Excluded Shares"). Except for the Shareholder's Shares and the
Excluded Shares, the Shareholder is not the record or beneficial owner of any
shares of Summit Stock and holds no warrants, options or other rights to acquire
Summit Stock. This Agreement has been duly authorized, executed and delivered
by, and constitutes a valid and binding agreement of, the Shareholder,
enforceable in accordance with its terms.
(b) Neither the execution and delivery of this Agreement nor the
consummation by the Shareholder of the transactions contemplated hereby will
result in a violation of, or a default under, or conflict with, any contract,
trust, commitment, agreement, understanding, arrangement
or restriction of any kind to which the Shareholder is a party or bound or to
which the Shareholder's Shares are subject. Consummation by the Shareholder of
the transactions contemplated hereby will not violate, or require any consent,
approval, or notice under, any provision of any judgment, order, decree,
statute, law, rule or regulation applicable to the Shareholder or the
Shareholder's Shares.
(c) The Shareholder's Shares and the certificates representing such Shares
are now, and at all times during the term hereof will be, held by the
Shareholder, or by a nominee or custodian for the benefit of such Shareholder,
free and clear of all liens, claims, security interests, proxies, voting trusts
or agreements, understandings or arrangements or any other encumbrances
whatsoever, except for any such encumbrances or proxies arising hereunder.
(d) The Shareholder understands and acknowledges that Liberty is entering
into, and causing Acquisition Sub to enter into, the Merger Agreement in
reliance upon the Shareholder's execution and delivery of this Agreement. The
Shareholder acknowledges that the irrevocable proxy set forth in Section 4 is
granted in consideration for the execution and delivery of the Merger Agreement
by Liberty and Acquisition Sub.
2. Voting Agreements. The Shareholder agrees with, and covenants to,
Liberty as follows:
(a) At any meeting of shareholders of Summit called to vote upon the
Merger and the Merger Agreement or at any adjournment thereof or in any other
circumstances upon which a vote, consent or other approval with respect to the
Merger and the Merger Agreement is sought (the "Shareholders' Meeting"), the
Shareholder shall vote (or cause to be voted) the Shareholder's Shares in favor
of the Merger, the execution and delivery by Summit of the Merger Agreement, and
the approval of the terms thereof and each of the other transactions
contemplated by the Merger Agreement, provided that the terms of the Merger
Agreement shall not have been amended to reduce the consideration payable in the
Merger to less than $33.00 per share or otherwise to impair materially and
adversely the Shareholder's rights or increase the Shareholder's obligations
thereunder.
(b) At any meeting of shareholders of Summit or at any adjournment thereof
or in any other circumstances upon which their vote, consent or other approval
is sought, the Shareholder shall vote (or cause to be voted) such Shareholder's
Shares against (i) any merger agreement or merger (other than the Merger
Agreement and the Merger), consolidation, combination, sale of substantial
assets, reorganization, recapitalization, dissolution, liquidation or winding up
of or by Summit or (ii) any amendment of Summit's Articles of Incorporation or
Bylaws or other proposal or transaction involving Summit or any of its
subsidiaries which amendment or other proposal or transaction would in any
manner impede, frustrate, prevent or nullify the Merger, the Merger Agreement or
any of the other transactions contemplated by the Merger Agreement (each of the
foregoing in clause (i) or (ii) above, a "Competing Transaction").
2
3. Transfers.
(a) The Shareholder shall not (i) transfer (which term shall include,
without limitation, for the purposes of this Agreement, any sale, gift, pledge
or other disposition), or consent to any transfer of, any or all of the
Shareholder's Shares or any interest therein, except pursuant to the Merger;
(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,
(iii) grant any proxy, power of attorney or other authorization in or with
respect to such Shares, except for this Agreement, or (iv) deposit such Shares
into a voting trust or enter into a voting agreement or arrangement with respect
to such Shares; provided, that the Shareholder may transfer (as defined above)
any of the Shareholder's Shares to any other person who is on the date hereof,
or to any family member of a person or charitable institution which prior to the
Shareholders' Meeting and prior to such transfer becomes, a party to this
Agreement bound by all the obligations of the "Shareholder" hereunder.
(b) Nothing in this Agreement shall affect the Shareholder's economic or
financial interest in the Shareholder's Shares and, without limiting the
foregoing, the parties acknowledge and agree that, in the event that the Merger
or any Competing Transaction is consummated, the Shareholder shall be entitled
to any and all consideration in exchange for the Shareholder's Shares.
4. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) The Shareholder hereby irrevocably grants to and appoints J. Xxxx
Xxxxxxx III, Chief Financial Officer of Liberty, Xxxxxxxx X. Xxxx, Vice
President and Director of Corporate Finance, and Xxxxxxxx X. X. Yahia, Vice
President and Associate General Counsel of Liberty, in their respective
capacities as officers of Liberty, and any individual who shall hereafter
succeed to any such office of Liberty, and each of them individually, the
Shareholder's proxy and attorney-in-fact (with full power of substitution), for
and in the name, place and stead of the Shareholder, to vote the Shareholder's
Shares, or grant a consent or approval in respect of such Shares (i) in favor of
the Merger, the execution and delivery of the Merger Agreement and approval of
the terms thereof and each of the other transactions contemplated by the Merger
Agreement, provided that the terms of the Merger Agreement shall not have been
amended to reduce the consideration payable in the Merger to less than $33.00
per share or otherwise to impair materially and adversely the Shareholder's
rights or increase the Shareholder's obligations thereunder, and (ii) against
any Competing Transaction.
(b) The Shareholder represents that any proxies heretofore given in
respect of the Shareholder's shares are not irrevocable, and that any such
proxies are hereby revoked.
(c) The Shareholder hereby affirms that the irrevocable proxy set forth in
this Section 4 is given in connection with the execution of the Merger
Agreement, and that such irrevocable proxy is given to secure the performance of
the duties of the Shareholder under this Agreement. The Shareholder hereby
further affirms that the irrevocable proxy is coupled with an interest and
3
may under no circumstances be revoked. The Shareholder hereby ratifies and
confirms all that such irrevocable proxy may lawfully do or cause to be done by
virtue hereof. Such irrevocable proxy is executed and intended to be irrevocable
in accordance with the provisions of Section 607.0722 of the 1989 Florida
Business Corporation Act.
5. Certain Events. The Shareholder agrees that this Agreement and the
obligations hereunder shall attach to the Shareholder's Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of such
Shares shall pass, whether by operation of law or otherwise, including without
limitation the Shareholder's successors or assigns. In the event of any stock
split, stock dividend, merger, reorganization, recapitalization or other change
in the capital structure of Summit affecting the Summit Stock, or the
acquisition of additional shares of Summit Stock or other voting securities of
Summit by any Shareholder, the number of Shares subject to the terms of this
Agreement shall be adjusted appropriately and this Agreement and the obligations
hereunder shall attach to any additional shares of Summit Stock or other voting
securities of Summit issued to or acquired by the Shareholder.
6. Legends. The Shareholder agrees that the Shareholder will tender to
Summit, within five business days after the date hereof, any and all
certificates representing such Shareholder's Shares and Summit will inscribe
upon such certificates the following legend: "The shares of Common Stock, $.01
par value per share, of Summit Southeast Holding, Inc. represented by this
certificate are subject to a Voting Agreement dated as of June 29, 1998, and may
not be sold or otherwise transferred, except in accordance therewith. Copies of
such Voting Agreement may be obtained at the principal executive offices of
Summit Holding Southeast, Inc."
7. Further Assurances. The Shareholder shall, upon the request and at the
expense of Liberty, execute and deliver any additional documents and take such
further actions as Liberty may reasonably deem necessary or appropriate to carry
out the provisions hereof and to vest the power to vote such Shareholder's
Shares in the irrevocable proxies as described in Section 4.
8. Termination. This Agreement, and all rights and obligations of the
parties hereunder, shall terminate upon the first to occur of: (a) the Effective
Time of the Merger or the date upon which any other merger, share exchange,
consolidation, recapitalization, significant asset sale or similar business
combination of Summit is consummated; (b) the date upon which the Merger
Agreement is terminated in accordance with either Section 8(a)(i), 8(a)(ii)(A),
8(a)(ii)(B) or 8(a)(ii)(C) thereof, provided, however, that if the Merger
Agreement is terminated in accordance with such Section 8(a)(ii)(A) following
the communication, public proposal, public disclosure or communication of an
Acquisition Proposal (as defined in the Merger Agreement) to Summit (or the
public disclosure or communication to Summit of the willingness of any Person to
make an Acquisition Proposal), then clause (c) of this Section 8, rather than
this clause (b), shall apply; or (c) if an Acquisition Proposal (as defined in
the Merger Agreement) is commenced on or before December 31, 1998, at close of
business on December 31, 1999.
4
9. Miscellaneous.
(a) Capitalized terms used and not otherwise defined in this Agreement
shall have the respective meanings assigned to them in the Merger Agreement.
(b) All notices, requests, claims, demands and other communications under
this Agreement shall be in writing and shall be deemed given and effective if
delivered personally or sent by overnight courier (providing proof of delivery)
to the parties at the following addresses (or at such other address for a party
as shall be specified by like notice): (i) if to Liberty, to the address
provided in the Merger Agreement; and (ii) if to the Shareholder; to his address
shown below his signature on the last page hereof.
(c) The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement.
(d) This Agreement may be executed in two or more counterparts, all of
which shall be considered one and the same agreement.
(e) This Agreement (including the documents and instruments referred to
herein) constitutes the entire agreement, and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to the
subject matter hereof.
(f) This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Florida, regardless of the laws that might otherwise
govern under applicable principles of conflicts of laws thereof.
(g) Neither this Agreement nor any of the rights, interests or obligations
under this Agreement shall be assigned, in whole or in part, by operation of law
or otherwise, by any of the parties without the prior written consent of the
other parties, except as expressly contemplated by Section 3. Any assignment in
violation of the foregoing shall be void.
(h) The Shareholder agrees that irreparable damage would occur and that
Liberty would not have any adequate remedy at law 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 Liberty
shall be entitled to an injunction or injunctions to prevent breaches by the
Shareholder of this Agreement and to enforce specifically the terms and
provisions of this Agreement in any court of the United States located in the
State of Florida or in Florida state court, 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 (i) consents to submit such party to the personal jurisdiction of
any federal court located in the State of Florida or any Florida state court in
the event any dispute arises out of this Agreement or any of the transactions
contemplated hereby, (ii) agrees that such party will not attempt to deny or
defeat such personal jurisdiction by motion or other request for leave from any
such court and (iii) agrees that such party will not
5
bring any action relating to this Agreement or any of the transactions
contemplated hereby in any court other than a federal court sitting in the State
of Florida or a Florida state court.
(i) If any term, provision, covenant or restriction herein, or the
application thereof to any circumstance, shall, to any extent, be held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions herein and the
application thereof to any other circumstances, shall remain in full force and
effect, shall not in any way be affected, impaired or invalidated, and shall be
enforced to the fullest extent permitted by law.
(j) No amendment, modification or waiver in respect of this Agreement
shall be effective against any party unless it shall be in writing and signed by
such party.
6
IN WITNESS WHEREOF, the undersigned parties have executed and delivered
this Voting Agreement as of the day and year first above written.
LIBERTY MUTUAL INSURANCE COMPANY
By: /s/ Xxxxxxxx X. Xxxx
--------------------------
Name: Xxxxxxxx X. Xxxx
Title: Vice President
SUMMIT HOLDING SOUTHEAST, INC.
By: /s/ Xxxxxxx X. Xxxx
--------------------------
Name: Xxxxxxx X. Xxxx
Title: President
SHAREHOLDER
/s/ Xxxx X. Xxxx
---------------------------------
Printed Name: Xxxx X. Xxxx
Address:
Number of Shares
Beneficially Owned That are
Subject to this Agreement: 43,405
Number of Shares Beneficially
Owned That are Not Subject to this
Agreement: 0
Total Number of Shares
Beneficially Owned: 43,405
7
