EXHIBIT 7.4
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Execution Version
VOTING AGREEMENT
This Voting Agreement (this "Agreement") dated as of November 12, 2007, is
made by and between NewStar Financial, Inc., a Delaware corporation (the
"Company"), and the undersigned stockholder of the Company (the "Stockholder").
RECITALS
A. Concurrently with the execution of this Agreement, the Company and
certain investors are entering into a Securities Purchase Agreement (the
"Purchase Agreement") dated as of the date hereof providing for the issuance of
shares of the Company's common stock, $0.01 par value per share (the "Common
Stock") to the investors (the "Investors") named therein (the "Offering").
B. That the Offering is subject, in certain respects, to the approval
of the holders of the Common Stock outstanding prior to the consummation of the
Offering under applicable Nasdaq Marketplace Rules.
C. The Stockholder is the record holder and beneficial owner of shares
of Common Stock of the Company as set forth on the signature page hereto (the
"Shares").
D. That the Company and the Stockholder agree, and the Stockholder is
willing to agree to vote all of the Shares, and any other shares of Common Stock
of the Company of which the Stockholder acquires beneficial ownership hereafter
and prior to the termination of this Agreement as provided for in Section 4
below (together with the Shares, the "Subject Shares"), so as to facilitate
consummation of the Offering; provided, however, that notwithstanding the
foregoing no shares of Common Stock issued to the Stockholder pursuant to the
Offering shall be voted pursuant to this Agreement.
NOW, THEREFORE, intending to be legally bound, the parties agree as
follows:
1. Agreement to Retain Shares. The Stockholder agrees not to transfer
(except as may be specifically required by court order), sell, exchange, pledge
or otherwise dispose of or encumber any of the Subject Shares, or to make any
offer or agreement relating thereto, at any time before the termination of this
Agreement as provided for in Section 4 below; unless the party to whom the
Subject Shares are (or are to be) sold, exchanged, pledged or otherwise disposed
of or encumbered shall have executed an acknowledgement and ratification of this
Agreement in form and substance reasonably satisfactory to the Company and
agreed to be bound by the terms hereof and the Company is provided with prior
notice of any such transaction.
2. Agreement to Vote Subject Shares. At every meeting of the
stockholders of the Company with respect to any of the following,
and at every adjournment thereof, the Stockholder shall vote the
Subject Shares (i) in favor of approval of the Offering and any
matter that could reasonably be expected to facilitate the Offering
and (ii) against approval of any proposal made in opposition to or
competition with the consummation of the Offering or which would
prevent or delay the consummation of the Offering (each of the
foregoing is hereinafter referred to as an "Opposing Proposal"). The
Stockholder agrees not to take any actions contrary to the
Stockholder's obligations under this Agreement.
3. Representations, Warranties and Covenants of the Stockholder. The
Stockholder hereby represents, warrants and covenants to the Company as follows:
3.1 Ownership of Shares. The Stockholder (i) is the beneficial
owner of the Shares, free and clear of any liens, claims, options, charges or
other encumbrances and (ii) has full power and authority to make, enter into and
carry out the terms of this Agreement.
3.2 No Proxy Solicitations. The Stockholder will not (i) solicit
proxies or become a "participant" in a "solicitation" (as such terms are defined
in Regulation 14A under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) with respect to an Opposing Proposal or otherwise encourage or
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assist any party in taking or planning any action that would compete with,
restrain or otherwise serve to interfere with or inhibit the timely consummation
of the Offering in accordance with the terms of the Purchase Agreement, (ii)
initiate a stockholders' vote or action by consent of stockholders of the
Company with respect to an Opposing Proposal or (iii) become a member of a
"group" (as such term is used in Section 13(d) of the Exchange Act) with respect
to any voting securities of the Company that takes any action in support of an
Opposing Proposal.
4. Termination. This Agreement shall terminate and shall have no
further force or effect as of the earliest of (i) the consummation of the
Offering and (ii) the termination of the Purchase Agreement as to the
Stockholder's obligations thereunder, if applicable, in accordance with its
terms.
5. Miscellaneous.
5.1 Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, then the remainder of the terms, provisions, covenants
and restrictions of this Agreement shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
5.2 Binding Effect and Assignment. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but, except as
otherwise specifically provided herein, neither this Agreement nor any of the
rights, interests or obligations of the parties hereto may be assigned by either
party without prior written consent of the other.
5.3 Amendments and Modification. This Agreement may not be
modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the parties hereto.
5.4 Specific Performance; Injunctive Relief. The parties hereto
acknowledge that the Company will be irreparably harmed and that there will be
no adequate remedy at law for a violation of any of the covenants or agreements
of the Stockholder set forth herein. Therefore, it is agreed that, in addition
to any other remedies that may be available to the Company upon any such
violation, the Company shall have the right to enforce such covenants and
agreements by specific performance, injunctive relief or by any other means
available to the Company at law or in equity.
5.5 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and sufficient if delivered in
person, by cable, telegram or facsimile, or sent by mail (registered or
certified mail, postage prepaid, return receipt requested) or overnight courier
(prepaid) to the respective parties as follows:
(a) If to the Company, to:
NewStar Financial, Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxx Xxxxxx Xxxxxx & Dodge LLP
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx, Esq.
Facsimile: (000) 000-0000
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(b) if to the Stockholder:
To the address for notice set forth on the
signature page hereof;
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall only be
effective upon receipt.
5.6 Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the internal laws of the State of New
York, without regard to any conflicts of laws and principles thereof.
5.7 Entire Agreement. This Agreement contains the entire
understanding of the parties in respect of the subject matter hereof, and
supersedes all prior negotiations and understandings between the parties with
respect to such subject matter.
5.8 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
5.9 Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction of interpretation of this
Agreement.
[Remainder of this page intentionally left blank]
IN WITNESS WHEREOF, the parties have caused this Voting Agreement to be
duly executed on the date and year first above written.
NEWSTAR FINANCIAL, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Chairman and Chief
Executive Officer
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STOCKHOLDER:
CAPITAL Z FINANCIAL SERVICES
FUND II, L.P.
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: General Counsel of
Capital Z Partners, Ltd.,
its ultimate general partner
Stockholder's Address for Notice:
000 Xxxx Xxxxxx Xxxxx, 00xx Xxxxx
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XX, XX 00000
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SHARES: 5,475,618
[Signature Page to Voting Agreement]
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STOCKHOLDER:
CAPITAL Z FINANCIAL SERVICES
PRIVATE FUND II, L.P.
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: General Counsel of
Capital Z Partners, Ltd.,
its ultimate general partner
Stockholder's Address for Notice:
000 Xxxx Xxxxxx Xxxxx, 00xx Xxxxx
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XX, XX 00000
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SHARES: 29,180
[Signature Page to Voting Agreement]
