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EXHIBIT (c)(9)
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement"), dated as of June 28, 2000, is
entered into by and between RISCORP, Inc., a Florida corporation ("RISCORP") and
Xxxxx X. Xxxxxx, Xx. ("Shareholder").
WITNESSETH:
WHEREAS, Shareholder owns (both beneficially and of record) in the
aggregate 790,336 shares of Class A Common Stock;
WHEREAS, RISCORP, Xxxxxxx X. Xxxxxxx ("Xxxxxxx") and Xxxxxxx Acquisition
Corp. ("Xxxxxxx Acquisition") have entered into that certain Plan and Agreement
of Merger, dated as of November 3, 1999 (the "Merger Agreement");
WHEREAS, RISCORP, Xxxxxxx and Xxxxxxx Acquisition have entered into that
certain First Amendment to the Merger Agreement, dated April 20, 2000 (the
"First Amendment");
WHEREAS, RISCORP, Xxxxxxx and Xxxxxxx Acquisition have entered into that
certain Second Amendment to the Merger Agreement, dated May 10, 2000 (the
"Second Amendment");
WHEREAS, concurrent with the execution and delivery of this Agreement,
RISCORP, Xxxxxxx and Xxxxxxx Acquisition are entering into that certain Third
Amendment to the Merger Agreement in the form attached hereto as Exhibit A (the
"Third Amendment" and the Merger Agreement as amended by the First Amendment,
the Second Amendment and the Third Amendment is hereinafter referred to as the
"Final Merger Agreement"); and
WHEREAS, Shareholder has agreed to enter into this Agreement in order to
induce RISCORP, Xxxxxxx and Xxxxxxx Acquisition to enter into the Third
Amendment and to consummate the transactions contemplated by the Final Merger
Agreement.
NOW, THEREFORE, in consideration of Xxxxxxx'x, Xxxxxxx Acquisition's and
RISCORP's entering into the Third Amendment and of the mutual covenants and
agreements contained herein and other good and valuable consideration, the
adequacy of which is hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Representations and Warranties of Shareholder. Shareholder hereby
represents and warrants to RISCORP as follows:
1.1. Title to the Shares. Shareholder is the owner (both beneficially
and of record) of the number of shares of Class A Common Stock set forth in
the recitals to this Agreement, which as of the date hereof constitutes all
of the shares of Class A Common Stock owned beneficially and of record by
Shareholder and its affiliates (the "Shareholder Parties") and Shareholder
has the exclusive power to vote such shares on all matters submitted to
holders of shares of Class A Common Stock. The Shareholder Parties do not
have any rights of any nature to acquire any additional shares of Class A
Common Stock. The Shareholder Parties own all of such Class A Common Stock
free and clear of all security interests, liens, claims, pledges, options,
rights of first refusal, agreements, limitations on voting rights, charges
and other encumbrances of any nature whatsoever (exclusive of any margin
borrowing associated with the account in which the shares are held and
other than the Pledge Agreement between Shareholder and Riscorp dated
(the "Pledge Agreement")), and, the Shareholder Parties have
not appointed or granted any proxy, which appointment or grant is still
effective, with respect to any of such shares of Class A Common Stock owned
by them.
1.2. Authority Relative to this Agreement. Shareholder has all
necessary power and authority to execute and deliver this Agreement, to
perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by
Shareholder and the consummation by Shareholder of the transactions
contemplated hereby have been duly and validly authorized by all necessary
action on the part of Shareholder. This Agreement has been duly and validly
executed and delivered by Shareholder and, assuming the due authorization,
execution and delivery by
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RISCORP, constitutes a legal, valid and binding obligation of Shareholder,
enforceable against Shareholder in accordance with its terms, (i) except as
may be limited by bankruptcy, insolvency, moratorium or other similar laws
affecting or relating to enforcement of creditors' rights generally, and
(ii) subject to general principles of equity.
1.3. No Conflict. The execution and delivery of this Agreement by
Shareholder does not, and the performance of this Agreement by Shareholder
will not, (a) require any consent, approval, authorization or permit of, or
filing with or notification to, any governmental or regulatory authority,
domestic or foreign by Shareholder, or (b) conflict with or violate any
law, rule, regulation, order, judgment or decree applicable to Shareholder.
2. Covenants of Shareholder. Shareholder hereby covenants and agrees that,
during the time this Agreement is in effect, except as otherwise specifically
contemplated by this Agreement, Shareholder shall not, and shall not offer or
agree to, sell, transfer, tender, assign, hypothecate or otherwise dispose of,
or create or permit to exist any additional security interest, lien, claim,
pledge, option, right of first refusal, agreement, limitation on voting rights,
charge or other encumbrance of any nature whatsoever with respect to the shares
of Class A Common Stock now owned or that may hereafter be acquired by
Shareholder.
3. Voting Agreement. Shareholder hereby agrees that, during the time this
Agreement is in effect, at any meeting of the shareholders of RISCORP, however
called, and in any action by written consent of the shareholders of RISCORP,
Shareholder shall: (a) vote the shares of Class A Common Stock owned by
Shareholder in favor of the Final Merger Agreement and any of the transactions
contemplated by the Final Merger Agreement; and (b) vote the shares of Class A
Common Stock owned by Shareholder against any action or agreement that RISCORP
has provided Shareholder with advance written notice is or would be reasonably
likely to result in any conditions to RISCORP's obligations under the Final
Merger Agreement not being fulfilled; provided, however, that the voting
agreement set forth in this Section 3 shall not extend to any further amendment
to the Final Merger Agreement that is not approved in writing by Shareholder.
Shareholder shall vote on all issues other than those specified in this Section
3 that may come before a meeting of the shareholders of RISCORP in their sole
discretion, provided that such vote does not contravene the provisions of this
Section 3.
4. Representations and Warranties of RISCORP. RISCORP hereby represents
and warrants to Shareholder as follows:
4.1. Authority Relative to this Agreement. RISCORP has all necessary
power and authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by RISCORP and the
consummation by RISCORP of the transactions contemplated hereby have been
duly and validly authorized by all necessary action on the part of RISCORP.
This Agreement has been duly and validly executed and delivered by RISCORP
and, assuming the due authorization, execution and delivery by Shareholder,
constitutes a legal, valid and binding obligation of RISCORP, enforceable
against RISCORP in accordance with its terms, (i) except as may be limited
by bankruptcy, insolvency, moratorium or other similar laws affecting or
relating to enforcement of creditors' rights generally, and (ii) subject to
general principles of equity.
4.2. No Conflict. The execution and delivery of this Agreement by
RISCORP does not, and the performance of this Agreement by RISCORP will
not, (a) require any consent, approval, authorization or permit of, or
filing with or notification to, any governmental or regulatory authority,
domestic or foreign by RISCORP, or (b) conflict with or violate any law,
rule, regulation, order, judgment or decree applicable to RISCORP.
5. Miscellaneous.
5.1 Effectiveness. The representations, warranties, covenants and
agreements of Shareholder set forth in this Agreement shall become
effective and shall be of full force and effect upon the execution of the
Third Amendment by RISCORP, Xxxxxxx and Xxxxxxx Acquisition and, if
RISCORP, Xxxxxxx or Xxxxxxx Acquisition shall fail to execute the Third
Amendment, then the representations, warranties,
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covenants and agreements of Shareholder set forth herein shall be of no
force or effect; provided, further, that all such representations,
warranties, covenants and agreements shall expire and terminate upon the
earlier of (i) the termination of the Final Merger Agreement in accordance
with its terms (without regard to any subsequent amendment) or (ii) August
15, 2000.
5.2. Expenses. All costs and expenses incurred in connection with the
transactions contemplated by this Agreement shall be paid by the party
incurring such costs and expenses.
5.3. Acknowledgement. RISCORP hereby acknowledges and agrees that the
communications that Shareholder has had with certain other holders of Class
A Common Stock in connection with the negotiation and execution of this
Agreement and the Third Amendment do not constitute and shall not be deemed
to be "acting together" within the meaning of Rule 13d-5(b) promulgated
under the Securities Exchange Act of 1934, as amended or a solicitation of
proxies.
5.4. 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 specific performance of the terms hereof, in addition to any
other remedy at law or in equity.
5.5. Entire Agreement. This Agreement constitutes the entire agreement
among the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings, both written and oral,
among such parties with respect to the subject matter hereof.
5.6. Assignment. This Agreement shall not be assigned by operation of
law or otherwise.
5.7. Parties in Interest. This Agreement shall be binding upon, inure
solely to the benefit of, and be enforceable by, the parties hereto and
their successors and permitted assigns. Nothing in this Agreement, express
or implied, is intended to or shall confer upon any other person any right,
benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
5.8. Amendment. This Agreement may not be amended except by an
instrument in writing signed by the parties hereto.
5.9. Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or
public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or
legal substance of this Agreement is not affected in any manner materially
adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in a
mutually acceptable manner in order that the terms of this Agreement remain
as originally contemplated to the fullest extent possible.
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5.10. Notices. Except as otherwise provided herein, 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
upon receipt) by delivery in person, by cable, facsimile transmission,
telegram or telex or by registered or certified mail (postage prepaid,
return receipt requested) to the respective parties at the following
addresses (or at such other address for a party as shall be specified in a
notice given in accordance with this Section 5.10):
if to RISCORP:
0 Xxxxx Xxxxxxx Xxxxx
Xxx Xxxxxxxx Xxxxx -- Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Xxxxxx & Bird LLP
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: J. Xxxxxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
if to Shareholder:
Xxxxx X. Xxxxxx, Xx.
x/x Xxxxxx X. Xxxxxxx
Xxxxxxx, Xxxxxxx, Xxxxxxx & Xxxxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000-00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
5.11 Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Florida applicable to
contracts executed in and to be performed in Florida without regard to any
principles of choice of law or conflicts of law of such state.
5.12 Definitions. Capitalized terms not otherwise defined herein shall
have the meanings set forth in the Final Merger Agreement.
5.13 Headings. The descriptive headings contained in this Agreement are
included for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
5.14 Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by
the different parties hereto in separate counterparts, each of which when
so executed and delivered shall be deemed to be an original but all of
which taken together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be duly executed and delivered as of the date first written above.
RISCORP, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
President
/s/ Xxxxx X. Xxxxxx, Xx.
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Xxxxx X. Xxxxxx, Xx.
