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EXHIBIT 11
SHAREHOLDER'S AGREEMENT
THIS SHAREHOLDER'S AGREEMENT (this "Agreement") dated as of October 25,
2000 is entered into by and between London Bridge Acquisition Company, Inc., a
Delaware corporation ("London Bridge"), and SAFECO Corporation, a Washington
corporation and as sponsor of the SAFECO 401(k) Savings Plan ("SAFECO"), with
respect to certain equity securities of Phoenix International Ltd., Inc., a
Florida corporation (the "Company").
WITNESSETH:
WHEREAS, London Bridge and the Company have entered into an Asset
Purchase Agreement (the "Purchase Agreement") dated as of the date hereof
pursuant to which London Bridge has agreed to purchase from the Company, and the
Company has agreed to sell to London Bridge, substantially all of the assets of
the Company (the "Purchase");
WHEREAS, as of the date hereof, the SAFECO 401(k) Savings Plan
beneficially owns and has the power to vote certain shares of the common stock,
no par value, of the Company (the "Company Common Stock"); and
WHEREAS, in consideration of London Bridge's agreements herein and in
the Purchase Agreement, SAFECO has agreed to vote the Company Common Stock in
favor of the Purchase, upon the terms and subject to the conditions set forth in
the Purchase Agreement, all in accordance with the terms and subject to the
conditions set forth herein.
NOW, THEREFORE, in contemplation of the foregoing and in consideration
of the mutual agreements, covenants, representations and warranties contained
herein and for other good and valuable consideration, the receipt of which is
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto agree as follows:
1. Certain Covenants.
1.1 Lock-Up. SAFECO hereby covenants and agrees during
the term of this Agreement that (a) except as consented to in writing by London
Bridge in its sole discretion, SAFECO will not, directly or indirectly, sell,
transfer, assign, pledge, hypothecate, tender or otherwise dispose of or limit
its right to vote in any manner any of the Securities (as hereinafter defined),
or agree to do any of the foregoing, and (b) SAFECO will not take any action
which would have the effect of preventing or disabling SAFECO from performing
its obligations under this Agreement.
1.2 No Solicitation. During the term of this Agreement,
neither SAFECO nor any person acting as an agent of SAFECO or otherwise on
SAFECO's behalf and with its authorization shall, directly or indirectly,
solicit, encourage or initiate negotiations with, or provide any information to,
any corporation, partnership, person or other entity or group (other
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than London Bridge or an affiliate or an associate of London Bridge) concerning
any sale, transfer, pledge, tender or other disposition or conversion of the
Securities. SAFECO will immediately cease and cause to be terminated any
existing activities, discussions or negotiations with any parties conducted
heretofore with respect to any of the foregoing.
1.3 Voting Agreement. SAFECO either (i) has not granted
or (ii) has revoked or terminated any proxies, voting agreements or similar
arrangements previously given or entered into with respect to the Securities.
SAFECO agrees (i) to vote all of the Securities in favor of the adoption and
approval of the Purchase Agreement and the Purchase and (ii) to vote all of the
Securities against: (A) any extraordinary corporate transaction (other than the
Purchase), such as a merger, consolidation, business combination, tender or
exchange offer, reorganization, recapitalization, liquidation or other change of
control involving the Company or any of its subsidiaries, including but not
limited to any Acquisition Proposal (as defined in the Purchase Agreement) and
(B) any sale or transfer of a material amount of the assets or securities of the
Company or any of its subsidiaries (other than with respect to the Purchase
Agreement).
1.4 Public Announcement. Neither party shall issue any
press release or otherwise make any public statement with respect to the matters
contemplated herein which names or attributes any action by or position of the
other with respect to the Company or the voting of the Securities without the
prior approval of the other party, except as may be required by law.
2. Representation and Warranties.
2.1 Representations and Warranties of London Bridge.
London Bridge hereby represents and warrants to SAFECO as follows:
(a) Authorization. London Bridge is a
corporation duly organized, validly existing and in good
standing under the laws of its state of incorporation. London
Bridge has all requisite power and authority to execute and
deliver this Agreement and to consummate the transactions
contemplated hereby. London Bridge has duly authorized,
executed and delivered this Agreement and this Agreement is a
legal, valid and binding agreement of London Bridge,
enforceable against London Bridge in accordance with its
terms.
(b) No Violation. Neither the execution and
delivery of this Agreement by London Bridge nor the
consummation of the transactions contemplated hereby by London
Bridge will (a) require London Bridge to file or register
with, or obtain any material permit, authorization, consent or
approval of, any governmental agency, authority,
administrative or regulatory body, court or other tribunal,
foreign or domestic, or any other entity, or (b) violate, or
cause a breach of or default under, any contract, agreement or
understanding, any statute or law, or any judgment, decree,
order, regulation or rule of any governmental agency,
authority, administrative or regulatory body, court or other
tribunal, foreign or domestic, or any other entity or any
arbitration award binding upon London Bridge.
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2.2 Representations and Warranties of SAFECO. SAFECO
hereby represents and warrants to London Bridge as follows:
(a) Ownership. The SAFECO 401(k) Savings Plan
beneficially owns, and has good and marketable title to,
488,300 shares of Company Common Stock (collectively, the
"Securities"), in each case free and clear of all liabilities,
claims, liens, options, proxies, charges, participations and
encumbrances of any kind or character whatsoever.
(b) Authorization. SAFECO has all requisite
power and authority to execute and deliver this Agreement and
to consummate the transactions contemplated hereby and has
sole voting power and sole power of disposition, with respect
to the Securities, with no restrictions on its voting rights
or rights of disposition pertaining thereto, other than
general fiduciary responsibilities to the plan participants.
SAFECO has duly authorized, executed and delivered this
Agreement and this Agreement is a legal, valid and binding
agreement of SAFECO, enforceable against SAFECO in accordance
with its terms.
(c) No Violation. Neither the execution and
delivery of this Agreement by the SAFECO nor the consummation
of the transactions contemplated hereby by the SAFECO will (a)
require SAFECO to file or register with, or obtain any
material permit, authorization, consent or approval of, any
governmental agency, authority, administrative or regulatory
body, court or other tribunal, foreign or domestic, or any
other entity, or (b) violate, or cause a breach of or default
under, any contract, agreement or understanding, any statute
or law, or any judgment, decree, order, regulation or rule of
any governmental agency, authority, administrative or
regulatory body, court or other tribunal, foreign or domestic,
or any other entity or any arbitration award binding upon
SAFECO. No proceedings are pending against SAFECO which, if
adversely determined, will have a material adverse effect on
SAFECO's ability to vote or dispose of any of the Securities.
SAFECO has not previously assigned or sold any of the
Securities to any third party.
(d) SAFECO Has Adequate Information. SAFECO is a
sophisticated party with respect to the Securities and has
adequate information concerning the business and financial
condition of the Company to make an informed decision
regarding the Securities and has independently and without
reliance upon London Bridge and based on such information as
SAFECO has deemed appropriate, made its own analysis and
decision to enter into this Agreement. SAFECO acknowledges
that London Bridge has not made and does not make any
representation or warranty, whether express or implied, of any
kind or character except as expressly set forth in this
Agreement.
3. Survival of Representations and Warranties. The respective
representations and warranties of SAFECO and London Bridge contained herein or
in any certificates or other
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documents delivered in connection herewith shall not be deemed waived or
otherwise affected by any investigation made by the other party hereto, and each
representation and warranty contained herein shall survive the closing of the
transactions contemplated hereby until the expiration of the applicable statute
of limitations, including extensions thereof.
4. Specific Performance. SAFECO acknowledges that London Bridge
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 SAFECO which are contained
in this Agreement. It is accordingly agreed that, in addition to any other
remedies which may be available to London Bridge upon the breach by SAFECO of
such covenants and agreements, London Bridge shall have the right to obtain
injunctive relief to restrain any breach or threatened breach of such covenants
or agreements or otherwise to obtain specific performance of any of such
covenants or agreements.
5. Miscellaneous.
5.1 Term. This Agreement (including, but not limited to,
the covenants contained herein) shall terminate upon the earlier to occur of (i)
the consummation of the transactions contemplated by the Purchase Agreement or
(ii) the termination of the Purchase Agreement according to its terms
(including, but not limited to, a termination by the Company pursuant to the
exercise of its fiduciary obligations pursuant to Section 8.1(i) of the Purchase
Agreement).
5.2 Expenses. Each of the parties hereto shall pay its
own expenses incurred in connection with this Agreement. Each of the parties
hereto warrants and covenants to the others that it will bear all claims for
brokerage fees attributable to action taken by it.
5.3 Binding Effect. This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the parties hereto and their
respective representatives and permitted successors and assigns.
5.4 Entire Agreement. This Agreement contains the entire
understanding of the parties and supersedes all prior agreements and
understandings between the parties with respect to its subject matter. This
Agreement may be amended only by a written instrument duly executed by the
parties hereto.
5.5 Headings. 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. Time is of the essence with respect to all
provisions of this Agreement.
5.6 Assignment. This Agreement may not be transferred or
assigned by SAFECO but may be assigned by London Bridge to any of its affiliates
or to any successor to its business and will be binding upon and inure to the
benefit of any such affiliate or successor.
5.7 Counterparts. This Agreement may be executed in two
counterparts, each of which shall be an original, but both of which together
shall constitute one and the same Agreement.
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5.8 Notices. 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 given if so given) by delivery, telegram or
telecopy, or by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any national courier service, provided that any notice
delivered as herein provided shall also be delivered by telecopy at the time of
such delivery. All communications hereunder shall be delivered to the respective
parties at the following addresses (or at such other address for a party as
shall be specified by like notice, provided that notices of a change of address
shall be effective only upon receipt thereof):
(a) If to London Bridge: London Bridge Group
00 Xxx Xxxxxx Xxxxxx Xxxxx
25 New London Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx XX0 0XX
Xxxxxx Xxxxxxx
Attention: Xxx Xxx
Telecopy: 011-44-207-940-0241
with a copy to: LBSS, Inc.
0000 X. Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxx
Telecopy: (000) 000-0000
and
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxx, Esq.
Xxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
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(b) If to
SAFECO : SAFECO Corporation
Investments Department
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxx
Telecopy: 000-000-0000
with a copy to: SAFECO Corporation
Corporate Xxxxx Xxxxxxxxxx
XXXXXX Xxxxx X-00
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxxxxx
Telecopy: 000-000-0000
5.9 Governing Law. This Agreement shall be governed by
and construed and enforced in accordance with the laws of the State of Delaware,
without regard to its principles of conflicts of laws.
5.10 Enforceability. The invalidity or unenforceability of
any provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain in
full force and effect.
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IN WITNESS WHEREOF, London Bridge and SAFECO have caused this Agreement
to be duly executed as of the day and year first above written.
LONDON BRIDGE ACQUISITION COMPANY, INC.
By: /s/ Xxx Xxx
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Name: Xxx Xxx
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Title: President
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SAFECO CORPORATION, AS PLAN SPONSOR OF
THE SAFECO 401(K) SAVINGS PLAN
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
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Title: Vice President - SAFECO Asset
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Management Co.
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