VOTING AGREEMENT
VOTING
AGREEMENT (this “Agreement”) dated as of
September 21, 2010 by and between Bayside Capital Partners LLC, a Delaware
limited liability company (“Parent”), and the undersigned
shareholder (“Shareholder”) of Majestic
Capital, Ltd., a Bermuda Company (the “Company”).
Concurrently
with the execution and delivery of this Agreement, Parent, Majestic Acquisition
Corp., a Delaware corporation and wholly-owned Subsidiary of Parent (“Merger Subsidiary”), and the
Company are entering into an Agreement and Plan of Merger and Amalgamation (the
“Merger Agreement”),
pursuant to which the parties to the Merger Agreement will perform their
obligations thereunder in accordance with the terms and subject to the
conditions set forth therein;
As of the
date hereof, the Shareholder owns, beneficially or of record, or has complete
investment authority over, and has the power to vote and dispose of the number
of shares of Common Shares and Class B Shares set forth on Schedule A (the
“Owned Shares” and,
together with (i) any securities issued or exchanged with respect to such Owned
Shares upon any recapitalization, reclassification, merger, consolidation,
spin-off, partial or complete liquidation, stock dividend, split-up or
combination of the securities of the Company or any other change in the
Company’s capital structure and (ii) any Common Shares or other voting
securities of the Company of which the Shareholder acquires beneficial or record
ownership after the date hereof and prior to the termination of this Agreement,
whether by purchase, acquisition or upon exercise of options, warrants,
conversion of other convertible securities or otherwise (collectively, together
with the Owned Shares, referred to herein as the “Covered Shares”).
In order
to induce Parent and Merger Subsidiary to enter into the Merger Agreement,
Parent and Merger Subsidiary have requested Shareholder, and Shareholder has
agreed, to enter into this Agreement with respect to his Covered Shares and
certain other matters set forth herein.
In
consideration of the foregoing and the representations, warranties, covenants
and agreements contained herein, the parties, intending to be legally bound,
hereto agree as follows:
ARTICLE
1
DEFINITIONS
Section
1.01. Definitions. All
capitalized terms that are used but not defined herein shall have the respective
meanings ascribed to them in the Merger Agreement.
ARTICLE
2
AGREEMENT
TO VOTE; GRANT OF PROXY
Section
2.01. Agreement To Vote
Shares. (a) At any meeting of shareholders of the Company called
prior to the termination of this Agreement, and at every adjournment,
postponement or continuation thereof, and on every action or approval by written
consent of shareholders of the Company, Shareholder shall, or shall cause the
holder of record on any applicable record date to appear at any such meeting or
otherwise cause the Covered Shares as to which the Shareholder controls the
right to vote to be counted as present thereat for the purpose of establishing a
quorum and respond to requests by Parent for written consent, and shall vote all
Covered Shares that Shareholder is entitled to vote in favor of (i) the
adoption of the Merger Agreement and (ii) any related matter that must be
approved by the shareholders of the Company in order for the transactions
contemplated by the Merger Agreement to be consummated.
(b)
Shareholder agrees that prior to the termination of this Agreement it will not
(and will cause the holder of record on any applicable record date not to) vote
any Covered Shares in favor of, or consent to, and will (and will cause the
holder of record on any applicable record date to) vote against and not consent
to, the approval of any (i) Acquisition Proposal (other than the
Transaction), (ii) reorganization, recapitalization, liquidation or
winding-up of the Company or any other extraordinary transaction involving the
Company (other than the Transaction), (iii) extraordinary dividend, distribution
or recapitalization by the Company or change in capital structure of the Company
or (iv) corporate action the consummation of which would frustrate the purposes,
or prevent or delay the consummation, of the transactions contemplated by the
Merger Agreement.
Section
2.02. Irrevocable
Proxy. Shareholder hereby revokes and agrees to cause to be revoked any
and all previous proxies granted with respect to the Covered Shares. By entering
into this Agreement, Shareholder hereby grants a proxy appointing Parent as the
Shareholder’s attorney-in-fact and proxy, with full power of substitution, for
and in the Shareholder’s name, to vote, express consent or dissent, or otherwise
to utilize such voting power in the manner expressly provided in by
Section 2.01 hereof as Parent or its proxy or substitute shall, in Parent’s
reasonable discretion, deem proper with respect to the Covered Shares to carry
out the intent of this Agreement. Except as provided in the following sentence,
the proxy granted by Shareholder pursuant to this Section 2.02 is
irrevocable and is granted in consideration of Parent entering into this
Agreement and the Merger Agreement and incurring certain related fees and
expenses. The proxy granted by Shareholder shall be revoked automatically and
without any further act of Shareholder upon termination of this Agreement in
accordance with its terms.
ARTICLE
3
REPRESENTATIONS
AND WARRANTIES
Section
3.01. Shareholder represents and warrants to Parent that:
Section
3.01.1. Authorization.
Shareholder (or the representative or fiduciary signing on his or her behalf, as
applicable) has full legal capacity, right and authority to execute and deliver
this Agreement and to perform his or her obligations hereunder. This Agreement
has been duly and validly executed and delivered by Shareholder and constitutes
a valid and binding agreement of Shareholder, enforceable against Shareholder in
accordance with its terms.
Section
3.02.2. Non-Contravention. The
execution, delivery and performance by Shareholder of this Agreement and the
consummation of the transactions contemplated hereby do not and will not
(a) violate any applicable law, rule, regulation, judgment, injunction,
order or decree binding on Shareholder, (b) require any filing or
registration with, or any consent, approval or authorization of, any
Governmental Authority, (c) require any other consent or action by any
Person under, constitute a breach or default under, or give rise to any right of
termination, cancellation or acceleration or to a loss of any benefit to which
Shareholder or any other Person is entitled under, any provision of any material
agreement or other instrument binding on Shareholder or (d) result in the
imposition of any Lien on any Covered Shares beneficially owned by Shareholder,
except for (i) such violations that would not prevent, delay or impair
Shareholder from performing Shareholder’s obligations under this Agreement,
(ii) such filings, registrations, consents, approvals or authorizations the
failure of which to be obtained or made would not prevent, delay or impair
Shareholder from performing Shareholder’s obligations under this Agreement and
(iii) such Liens that would not prevent, delay or impair Shareholder from
performing Shareholder’s obligations under this Agreement.
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Section
3.03.3. Ownership of Owned
Shares. (a) Shareholder is the beneficial owner (as such term is
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of
all the Owned Shares set forth on Schedule A, all of
which are free and clear of any Lien, claim or any other limitation (including
any restriction on the right to vote or otherwise dispose of such
shares), in any case, except as would not adversely affect the exercise or
fulfillment of the rights and obligations of the parties to this
Agreement.
(b) None
of the shares of Owned Shares set forth on Schedule A are (or,
if unissued, will be upon issuance) subject to any voting trust or other
agreement or arrangement with respect to the voting of such shares or
options.
Section
3.04.4. Total Owned
Shares. Except as set forth on Schedule A (including
any Common Shares of the Company issuable upon the exercise or settlement of any
securities described on Schedule A),
Shareholder does not beneficially own any (a) shares of capital stock or
voting securities of the Company, (b) securities of the Company convertible
into or exchangeable for shares of capital stock or voting securities of the
Company or (c) options or other rights to acquire from the Company any
capital stock, voting securities or securities convertible into or exchangeable
for capital stock or voting securities of the Company.
Section
3.05.5. Litigation. As
of the date of this Agreement, there is no action, proceeding or investigation
pending or, to the knowledge of Shareholder, threatened against Shareholder that
questions the validity of this Agreement or any action taken or to be taken by
Shareholder in connection with this Agreement.
Section
3.02. Parent represents and warrants to Shareholder that:
Section
3.02.1. Authorization. Parent is a limited liability company duly
organized and validly existing under the laws of the State of Delaware has the
full limited liability company capacity, right, power and authority to execute
and deliver this Agreement and to perform its obligations
hereunder. This Agreement has been duly authorized, executed and
delivered by Parent and constitutes a valid and binding agreement of Parent,
enforceable against Parent in accordance with its terms.
Section
3.02.2. Non-Contravention. The execution, deliver and
performance by Parent of this Agreement and the consummation by Parent of the
transactions contemplated hereby do not and will not (a) violate its
Organizational Documents or any applicable law, rule, regulation, judgment,
injunction, order or decree binding on Parent, (b) require any filing or
registration with, or any consent, approval or authorization of, any
Governmental Authority, or (c) require any other consent or action by any Person
under, constitute a breach or default under, or give rise to any right of
termination, cancellation or acceleration or to a loss of any benefit to which
Parent or any other Person is entitled under, any provision of any material
agreement or other instrument binding on Parent, except such filings,
registrations, consents, approvals or authorizations the failure of which to be
obtained or made would not prevent, delay or impair Parent from performing its
obligations under this Agreement.
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ARTICLE
4
COVENANTS
Section
4.01. Transfer
Restrictions. Prior to the termination of this Agreement, Shareholder
agrees not to cause or permit any Transfer of any of Covered Shares to be
effected, except by operation of law (so long as this Agreement shall bind the
transferee to the fullest extent as if the transferee were Shareholder
hereunder), as specifically required by court order, to a Governmental Authority
in connection with the settlement of a claim by such Governmental Authority
presently existing against Shareholder or to satisfy tax obligations with
respect to the Covered Shares; provided, however, that
nothing contained herein will be deemed to restrict the ability of Shareholder
to (i) exercise any stock options of the Company held by Shareholder, (ii)
transfer Covered Shares in connection with estate and charitable planning
purposes or for the benefit of one or more members of the Shareholder’s
immediate family, so long as the transferee, prior to such Transfer, is bound to
the fullest extent as if the transferee were Shareholder hereunder, or (iii) by
will, or by operation of law, in which case this Agreement shall bind the
transferee. Shareholder agrees not to deposit (or permit the deposit of) any
Covered Shares in a voting trust or grant any proxy or enter into any voting
agreement or similar agreement in contravention of the obligations of
Shareholder under this Agreement with respect to any of the Covered
Shares. As used herein, the term “Transfer” shall mean any
direct or indirect (i) sale, pledge, encumbrance, assignment, tender, grant of
an option with respect to, transfer or disposition of any Covered Share or any
voting interest in any Covered Share, (ii) grant of any proxy or power of
attorney or (iii) entering into an agreement or commitment, whether or not in
writing, providing for the sale, pledge, encumbrance, assignment, or grant of an
option with respect to, transfer of or disposition of any Covered Share or any
interest therein.
Section
4.02. Legending of
Shares. If so requested by Parent in respect of any Covered Shares,
Shareholder agrees that such Covered Shares shall bear a legend stating that
they are subject to this Agreement.
Section
4.03. Appraisal Rights.
Shareholder agrees not to exercise any rights (including under Xxxxxxx 000
xx xxx Xxxxxxx Xxxxxxxxx Xxx) to demand appraisal of any Covered Shares which
may arise with respect to the Transaction.
Section
4.04. Further
Assurances. Parent and Shareholder will each execute and deliver, or
cause to be executed and delivered, all further documents and instruments that
are requested by the other to carry out the purpose and intent of this Agreement
and that are reasonably required for the consummation of the
Transaction.
ARTICLE
5
GENERAL
PROVISIONS
Section
5.01. Directors and
Officers. Notwithstanding any provision of this Agreement to the
contrary, nothing in this Agreement shall (or shall require Shareholder to
attempt to) limit or restrict Shareholder in his capacity as a director or
officer of the Company or any designee of Shareholder who is a director or
officer of the Company from acting in such capacity or voting in such person’s
sole discretion on any matter (it being understood that this Agreement shall
apply to Shareholder solely in his capacity as a shareholder of the Company). No
action taken by Shareholder in his or her capacity as a director or officer of
the Company shall be deemed to constitute a breach of any provision of this
Agreement.
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Section
5.02. No Ownership
Interest. Nothing contained in this Agreement shall be deemed to vest in
Parent any direct or indirect ownership or incidence of ownership of or with
respect to the Covered Shares. All rights, ownership and economic benefits of
and relating to the Covered Shares shall remain vested in and belong to
Shareholder, and Parent shall have no authority to manage, direct, restrict,
regulate, govern, or administer any of the policies or operations of the Company
or exercise any power or authority to direct Shareholder in the voting of any of
the Covered Shares, except as otherwise expressly provided herein.
Section
5.03. Amendments. Any
provision of this Agreement may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed, in the case of an amendment, by
each party to this Agreement or in the case of a waiver, by the party against
whom the waiver is to be effective.
Section
5.04. Termination. This
Agreement shall terminate upon the earliest to occur of:
(a) the
approval and adoption of the Merger Agreement at the Company Shareholder
Meeting;
(b) the
termination of the Merger Agreement in accordance with its terms;
(c) the
written agreement of Parent and Shareholder; and
(d) the
amendment or modification of the Merger Agreement as in effect as of the date
hereof to reduce the Transaction Consideration or otherwise change the terms and
conditions, taken as a whole, of the Merger Agreement in a way that is
materially adverse to the holders of Common Shares.
Section
5.05. Waivers. Any waiver of any
term or condition of this Agreement shall not be construed as a waiver of any
subsequent breach, or a subsequent waiver of the same term or condition or a
waiver of any other term or condition, of this Agreement. The failure of any
party to assert any of its rights hereunder shall not constitute a waiver of any
of such rights. No failure or delay by any party in exercising any right, power
or privilege under this Agreement shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
Section
5.06. Breach; Survival.
No party hereto shall be relieved from any liability for breach of this
Agreement by reason of any termination of this Agreement. Regardless of the
foregoing, Sections 5.07 through 5.15 of this Agreement will survive the
termination of this Agreement.
Section
5.07. Publication.
Shareholder authorizes the Company to publish and disclose in any announcement,
disclosure or filing required by any Governmental Entity, the Shareholder’s
identity and ownership of the Covered Shares and the nature of the Shareholder’s
commitments, arrangements and understandings under this
Agreement.
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Section
5.08. Expenses. All
costs and expenses incurred in connection with this Agreement shall be paid by
the party incurring such cost or expense.
Section
5.09. Successors and
Assigns. The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns; provided that
no party may assign, delegate or otherwise transfer any of its rights or
obligations under this Agreement without the consent of the other parties
hereto, except that Parent may transfer or assign its rights and obligations to
any Affiliate of Parent; provided that no such
assignment shall release Parent of its obligations under this
Agreement. No Person, other than the Parties hereto and their
successors and permitted assigns, shall have right, remedy or claim under or in
respect of this Agreement or any provision hereof.
Section
5.10. Governing Law;
Jurisdiction; Waiver of
Jury Trial. (a) This Agreement shall be construed in accordance with
and governed by the laws of the State of New York, except that the provisions of
Section 2.02 shall be construed in accordance with and governed by the laws of
Bermuda.
(b) Each
of the parties hereto (i) consents to submit itself to the personal
jurisdiction of any New York State court or Federal court located in the
Southern District of New York in the event any dispute arises out of this
Agreement, (ii) 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 (iii) agrees that it will not bring any action relating to 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 in the courts of the State of New
York or in any Federal court located in the Southern District of New York, 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 an inconvenient forum.
(c) Each
of the parties hereto irrevocably waives any and all right to trial by jury in
any legal proceeding arising out of or related to this Agreement.
Section
5.11. Notices. All
notices, requests and other communications to any party under this Agreement
will be made in writing (including facsimile transmission) and shall be
given,
if to
Parent, to:
000 Xxxx
Xxxx Xxxxxx
Xxxx
Xxxxx, Xxx Xxxx 00000
Attn: Xxxx
Xxxxxxxx
Facsimile: (000)
000-0000
Email: xxxxxxxxx@xxxxxx-xxx.xxx
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with a
copy (which shall not constitute notice) to:
Xxxxx
Peabody LLP
00
Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxxxx,
Xxx Xxxx 00000
Attn: Xxxxx
X. Xxxxx
Facsimile: (000)
000-0000
Email:
xxxxxx@xxxxxxxxxxxx.xxx
if to
Shareholder, to:
with a
copy (which shall not constitute notice) to:
Xxxxxx
Xxxxx Xxxxxxxx & Xxxxxxx LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn: Xxxxx
X. Xxxxxxxx, Esq.
Facsimile: (000)
000-0000
Email:
xxxxxxxxx@xxxxxxxxxxx.xxx
Section
5.12. Counterparts;
Effectiveness. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. This Agreement
shall become effective when each party hereto shall have received counterparts
hereof signed by all of the other parties hereto. Until and unless each party
has received a counterpart hereof signed by the other party hereto, this
Agreement shall have no effect and no party shall have any right or obligation
hereunder (whether by virtue of any other oral or written agreement or other
communication).
Section
5.13. Severability. If
any term, provision or covenant of this Agreement is held by a court of
competent jurisdiction or other authority to be invalid, void or unenforceable,
the remainder of the terms, provisions and covenants of this Agreement shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated.
Section
5.14. Specific
Performance. The parties hereto agree that irreparable damage would occur
in the event any provision of this Agreement is not performed in accordance with
the terms hereof and that the parties shall be entitled to seek specific
performance of the terms hereof in addition to any other remedy to which they
are entitled at law or in equity, without any requirement to post a bond or
security of any other type.
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Section
5.15. Interpretation. The
headings and captions in this Agreement are included for convenience of
reference only and shall be ignored in the construction or interpretation of
this Agreement. Any capitalized terms used in any Schedule but not otherwise
defined therein shall have the meanings as defined in this Agreement. All
references to Articles, Sections or Schedules contained in this Agreement shall
be to Articles, Sections or Schedules of or to this Agreement unless otherwise
stated. All Exhibits and Schedules annexed hereto or referred to herein are
hereby incorporated in and made a part of this Agreement as if set forth in full
herein. Unless the context of this Agreement otherwise clearly requires, (i)
references to the plural include the singular, and references to the singular
include the plural, (ii) references to any gender include the other genders,
(iii) the word “including” does not limit the preceding terms or words and shall
be deemed to be followed by the words “without limitation”, (iv) the terms
“hereof”, “herein”, “hereunder”, “hereto” and similar terms in this Agreement
refer to this Agreement as a whole and not to any particular provision of this
Agreement, (v) references to any person include the successors and permitted
assigns of that person.
[The
remainder of this page has been intentionally left blank; the next page is the
signature page.]
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IN
WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of
the date first written above.
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By:__________________________________
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SHAREHOLDER:
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_____________________________________
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Schedule
A
Securities
Beneficially Owned
Common
Shares of the Company
Shares of
Class B Shares of the Company
Securities
Convertible or Exercisable or Exchangeable for Common Shares of the
Company
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