VOTING AND SUPPORT AGREEMENT
Exhibit
99.1
EXECUTION
VERSION
This
VOTING AND SUPPORT AGREEMENT (this "Agreement") is
entered into as of January 10, 2008, by and among Employers Holdings, Inc.,
a
Nevada corporation ("Parent"), and Xxx
X.
Xxxxxxxx ("Shareholder"). Parent
and Shareholder are sometimes referred to herein as a "Party" and
collectively as the "Parties".
W
I T N E S S E T
H:
WHEREAS,
as of the date hereof, Shareholder "beneficially owns" (as such
term is defined in Rule 13d-3 promulgated under the Exchange Act) and is
entitled to dispose of (or to direct the disposition of) and to vote (or to
direct the voting of) the number of shares of common stock, par value $0.01
per
share (the "Common
Stock"), of AmCOMP Incorporated, a Delaware corporation (the "Company"),
set forth
opposite Shareholder's name on Schedule I hereto
(such shares of Common Stock, together with any other shares of Common Stock
the
voting power over which is acquired by Shareholder during the period from and
including the date hereof through and including the date on which this Agreement
is terminated in accordance with its terms (such period, the "Voting Period"), are
collectively referred to herein as the "Subject
Shares");
WHEREAS,
Parent, Sapphire Acquisition Corp., a wholly-owned subsidiary of Parent ("Acquisition Sub"),
and the Company propose to enter into an Agreement and Plan of Merger, dated
as
of the date hereof (as the same may be amended from time to time, the "Merger Agreement"),
pursuant to which Acquisition Sub will merge with and into the Company, with
the
Company surviving as a wholly-owned subsidiary of Parent (the "Merger");
and
WHEREAS,
as a condition to the willingness of Parent and Acquisition Sub to enter into
the Merger Agreement, and as an inducement and in consideration therefor,
Shareholder is executing this Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the mutual premises,
representations, warranties, covenants and agreements contained herein, the
Parties hereto, intending to be legally bound, hereby agree as
follows:
ARTICLE
I
DEFINITIONS
Section
1.1
Capitalized
Terms. For
purposes of this Agreement, capitalized terms used and not defined herein shall
have the respective meanings ascribed to them in the Merger
Agreement. For the avoidance of doubt, the term "Affiliate," as used in this Agreement,
shall
have the meaning ascribed to such term in the Merger
Agreement.
ARTICLE
II
VOTING
AGREEMENT AND
IRREVOCABLE PROXY
Section
2.1
Agreement
to
Vote the Subject Shares. Subject to Section 2.3,
Section 2.4 and Section 2.5, Shareholder hereby unconditionally
and
irrevocably agrees that, during the Voting Period, at any duly called meeting
of
the stockholders of the Company (or any adjournment or postponement thereof),
and in any action by written consent of the stockholders of
the Company, Shareholder shall, if a
meeting is held, appear at the meeting, in person or by proxy, or otherwise
cause its Subject Shares to be counted as present thereat for purposes of
establishing a quorum, and it shall vote or consent (or cause to bevoted
or consented), in person or by
proxy, all of its Subject Shares (a) in favor of the adoption of the Merger
Agreement and approval of the Merger and the other transactions contemplated
by
the Merger Agreement (and any actions required in furtherance thereof),
(b) against any action,
proposal, transaction or agreement that would result in a breach in any respect
of any covenant, representation or warranty or any other obligation or agreement
of the Company contained in the Merger Agreement or of Shareholder
contained in this Agreement, and
(c) against the following actions or proposals (other than the transactions
contemplated by the Merger Agreement): (i) any Company Takeover
Proposal or any proposal in opposition to approval of the Merger Agreement
or
in competition with or materially
inconsistent with the Merger Agreement; and (ii) (A) any change in the persons
who constitute the Board);
(B) any material change in the
present capitalization of the Company or any amendment of the Certificate of
Incorporation or Bylaws;
(C) any change in the Company's corporate structure or business; or (D) any
other action or proposal involving the Company or any Company Subsidiary that
is
intended, or could reasonably be expected, to prevent, impede, interfere with,
delay,
postpone or adversely affect the
transactions contemplated by the Merger Agreement or could reasonably be
expected to result in any of the conditions to the Company's obligations under
the Merger Agreement not being fulfilled. Subject to Section
2.5,
Shareholder agrees not to, and shall
cause its Representatives not to, enter into any agreement, commitment or
arrangement with any Person the effect of which would be inconsistent with
or
violative of the provisions and agreements contained in this Article
II.
Section
2.2
Effect
of Change of Recommendation, Withdrawal of Recommendation or Company
Breach. For the
avoidance of doubt, Shareholder agrees that, during the Voting Period, the
obligations of Shareholder specified in Section 2.1 shall not be affected by any (a) Change
of
Recommendation, (b) Withdrawal of Recommendation or (c) breach by the Company
of
any of its representations, warranties, agreements or covenants set forth in
the
Merger Agreement.
Section
2.3
Grant
of Irrevocable Proxy. Shareholder
hereby appoints Parent and any
designee of Parent, and each of them individually, as Shareholder's agent,
proxy
and attorney-in-fact, with full power of substitution and resubstitution in
the
premises, to vote or act by written consent during the Voting
Period with respect to any and all of
the Subject Shares in accordance with Section 2.1, in each case subject to
the
receipt of any Requisite Regulatory Approvals, if
required. Shareholder shall promptly cause a copy of this Agreement
to be deposited with
the Company at its principal place of
business. Shareholder shall take such further action or execute such
other
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instruments
as may be necessary to effectuate the
intent of this proxy. Shareholder affirms that the irrevocable proxy
set forth in this Article
II is given in connection with,
and in consideration of, the execution of the Merger Agreement, and that such
irrevocable proxy is given to Parent by Shareholder to secure the performance
of
the duties of Shareholder under this Agreement.
Section
2.4
Nature
of Irrevocable Proxy. The proxy and power of
attorney granted pursuant to Section 2.3 to the Parent by Shareholder shall
(a)
be irrevocable during the term of this Agreement, (b) be deemed to be coupled
with an interest sufficient in law to support an irrevocable proxy,
(c) revoke any
and all prior proxies and powers of attorney granted by Shareholder with respect
to the Subject Shares and (d) not give any subsequent proxy or power of attorney
with respect to the Subject Shares, other than a proxysolicited
by the Proxy Statement to the
extent necessary to permit Shareholder to comply with Section
2.1. The power of attorney granted by Shareholder herein is a durable
power of attorney and shall survive the dissolution, bankruptcy, death or
incapacity
of Shareholder and shall be binding
upon the heirs, personal representatives, successors or assigns of
Shareholder. The proxy and power of attorney granted hereunder shall
terminate upon the termination of this Agreement. It is agreed that
Parent and any
designee of Parent shall use the
irrevocable proxy granted hereby only in accordance with applicable
Law. For the avoidance of doubt, the vote of Parent or any designee
of Parent shall control in any conflict between the vote by Parent or any
designeeof
Parent of the Subject Shares and any
other vote by Shareholder of the Subject Shares.
Section
2.5
No
Restrictions on Obligation as Director or Officer. The Parties acknowledge
that
Shareholder (or a Representative of Shareholder) is a director and/or
officer of the Company
and,
in such capacity, owes a fiduciary duty to the Company and its
stockholders. Notwithstanding anything to the contrary contained in
this Agreement, nothing in this Agreement shall be construed to impose any
obligation or limitation
on votes or actions taken by any
director, officer, general partner, member, employee, agent or other
representative (collectively, "Representatives")
of Shareholder in his or her capacity
as a director or officer of the Company, including pursuant to Section 4.4(e) of the
Merger
Agreement.
ARTICLE
III
COVENANTS
Section
3.1
Generally.
(a)
Shareholder agrees that during
the
Voting Period, except as contemplated by the terms of this Agreement, it shall
not, and shall cause its Representatives not to, without the Parent's prior
written consent,
(i) offer for sale, sell (including short sales), transfer, tender, pledge,
encumber, assign or otherwise dispose of (including by gift) (collectively,
a
"Transfer"),
or enter into any contract, option,
derivative, hedging or
other agreement or arrangement or understanding (including any profit-sharing
arrangement) with respect to, or consent to, a Transfer of, any or all of the
Subject Shares; (ii) grant any proxies or powers of attorney with respect to
any
or all of
the Subject
Shares;
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(iii)
permit to exist any lien of any
nature whatsoever with respect to any or all of the Subject Shares; or (iv)
take
any action that would have the effect of preventing, impeding, interfering
with
or adversely affecting Shareholder's
ability to perform its obligations
under this Agreement.
(b)
In the event of a stock dividend
or distribution, or any change in the Common Stock by reason of any stock
dividend or distribution, split-up, recapitalization, combination, conversion,
exchange of shares or the
like, the term "Subject Shares" shall be deemed to refer to and include the
Subject Shares as well as all such stock dividends and distributions and any
securities into which or for which any or all of the Subject Shares may be
changed or
exchanged or which are received in
such transaction.
(c)
Shareholder agrees, while this
Agreement is in effect, not to take or agree or commit to take any action that
would make any representation and warranty of Shareholder contained in this
Agreement inaccurate in any
material respect.
Section
3.2
Standstill
Obligations of the Shareholder. Shareholder covenants
and
agrees with Parent that, during the Voting Period:
(a)
Shareholder shall not, nor shall
Shareholder permit any of its Representatives to, nor shall Shareholder
act in concert with
or permit any of its Representatives to act in concert with any Person to make,
or in any manner participate in, directly or indirectly, a "solicitation" of
"proxies" or consents (as such terms are used in the rulesof
the SEC) or powers of attorney or
similar rights to vote, or seek to advise or influence any Person with respect
to the voting of, any shares of Common Stock in connection with any vote or
other action on any matter, other than to recommend that stockholders
of the Company vote in favor of
adoption of the Merger Agreement, the Merger and the other transactions
contemplated by the Merger Agreement (and any actions required in furtherance
thereof and otherwise as expressly provided by Article II of this Agreement)
(b)
Shareholder shall not, nor shall
Shareholder permit any Representative of Shareholder to, nor shall Shareholder
act in concert with or permit any Representative of Shareholder to act in
concert with any Person to, deposit any of the Subject Shares in a voting trust
or subject any
of the Subject Shares to any arrangement or agreement with any Person with
respect to the voting of the Subject Shares, except as provided by Article
II of
this Agreement.
(c)
Shareholder shall not, nor shall
Shareholder permit any
Representative of Shareholder to, nor shall Shareholder act in concert with
or
permit any Representative of Shareholder to act in concert with any Person
to,
directly or indirectly, initiate, solicit or knowingly encourage or facilitate
(including,
in each case, by way of
furnishing information) any inquiries or the making of any proposal or offer
with respect to, or any indication of interest in, any Company Takeover
Proposal, engage in any negotiations or discussions concerning any
Company Takeover
Proposal, or provide any
non-public information or data to any Person (other than Parent, Acquisition
Sub
or any of Affiliates of Parent) that has made, or to Shareholder's knowledge,
is
considering making a Company Takeover Proposal or any Representatives
thereof, or make any public
statements with respect to any Company Takeover Proposal or any matter that
relates to, supports, or could reasonably be expected to lead to any Company
Takeover Proposal.
4
(d)
Shareholder shall, and shall
(subject to Section 2.5)
cause any Representative of Shareholder to, cease immediately and cause to
be
terminated any and all existing discussions, conversations, negotiations and
other communications with any Person conducted heretofore with respect to any
Company Takeover
Proposal or any matter that
relates to, supports, or could reasonably be expected to lead to any Company
Takeover Proposal. Shareholder shall, and shall not (subject to
Section 2.5) permit any of its Representatives to, directly or indirectly,
engage
in any activity which would be
prohibited pursuant to Section 4.4(b) of the Merger Agreement if engaged in
by
the Company.
Section
3.3
Appraisal
Rights. Shareholder agrees not
to
seek appraisal or assert any rights of dissent from the Merger that it
may have under Section
262
of the DGCL (or otherwise) and, to the extent permitted by applicable Law,
Shareholder hereby waives any rights of appraisal or rights to dissent from
the
Merger that it may have under Section 262 of the DGCL.
ARTICLE
IV
REPRESENTATIONS
AND
WARRANTIES OF SHAREHOLDER
Shareholder
hereby represents and warrants to Parent as follows:
Section
4.1
Binding
Agreement. Shareholder (a) if a
natural
person, is of legal age to execute this Agreement and is legally competent
to do
so and (b) if not a natural
person, (i) is a corporation, limited liability company or partnership duly
organized and validly existing under the laws of the jurisdiction of its
organization and (ii) has all necessary power and authority to execute and
deliver this Agreement
and to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby by
Shareholder has been duly authorized by all necessary corporate, limited
liability or
partnership action on the part of
Shareholder. This Agreement, assuming due authorization, execution
and delivery hereof by Parent, constitutes a legal, valid and binding obligation
of Shareholder, enforceable against Shareholder in accordance with
itsterms
(except as such enforceability may
be limited by bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar laws of general applicability relating to or
affecting creditor's rights, and to general equitable principles).
Section
4.2
Ownership
of
Shares. Schedule
I sets forth opposite Shareholder's name the number of shares of Common Stock
over which Shareholder has record and beneficial ownership as of the date
hereof. As of the date hereof, Shareholder is the lawful
owner of the shares of
Common Stock denoted as being owned by Shareholder on Schedule I and has the
sole power to vote or cause to be voted such shares. Shareholder does
not own or hold any right to acquire any additional shares of any class of
capital stock
of the Company or other securities of
the Company or any interest therein or any voting rights with respect to any
securities of the Company other than the Subject Shares. Shareholder
has good and valid title to the Common Stock denoted as being owned by
Shareholder on Schedule I , free and
clear of any and all pledges, mortgages,
5
Encumbrances,
charges, proxies, voting
agreements, liens, adverse claims, options, security interests and demands
of
any nature or kind whatsoever, other than those created bythis
Agreement. There are no
claims for finder's fees or brokerage commission or other like payments in
connection with this Agreement or the transactions contemplated hereby payable
by Shareholder pursuant to arrangements made by Shareholder.
Section
4.3
No
Conflicts.
(a)
No filing with any Governmental
Authority, and no authorization, consent or approval of any other Person is
necessary for the execution of this Agreement by Shareholder and the
consummation by Shareholder of the transactions contemplated hereby.
(b)
None of the execution and delivery
of this Agreement by Shareholder, the consummation by Shareholder of the
transactions contemplated hereby or compliance by Shareholder with any of the
provisions hereof shall (i) conflict with or result in any breach of the organizational
documents of Shareholder, as applicable, (ii) result in, or give rise to, a
violation or breach of or a default under any of the terms of any material
contract, understanding, agreement or other instrument or obligation to
which
Shareholder is a party or by which
Shareholder or any of the Subject Shares or assets may be bound, or (iii)
violate any applicable Order, writ, injunction, decree, judgment, statute,
rule
or regulation, except for any of the foregoing as could not reasonably
be expected to impair
Shareholder's ability to perform its obligations under this
Agreement.
Section
4.4
Company
Takeover Proposal. Shareholder represents
that
it is not, and (subject to Section 2.5) no Representative of Shareholder is,
engaged in any discussions
or negotiations with any Person (other than Parent, Acquisition Sub or any
of
Affiliates of Parent) with respect to any Company Takeover Proposal or any
matter that relates to, supports, or could reasonably be expected to lead to
any
Company
Takeover
Proposal.
Section
4.5
Reliance
by
Parent. Shareholder understands
and
acknowledges that Parent is entering into the Merger Agreement in reliance
upon
the execution and delivery of this Agreement by Shareholder.
ARTICLE
V
REPRESENTATIONS
AND
WARRANTIES OF PARENT
Parent
hereby represents and warrants to the Shareholders as follows:
Section
5.1
Binding
Agreement. Parent is a Nevada
corporation duly organized and validly existing under the laws of the
jurisdiction of its organization. Parent has all necessary corporate
power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby by
Parent
have been duly authorized by all
necessary corporate action on the part of Parent. This Agreement,
assuming due authorization, execution and delivery hereof by Shareholder,
constitutes a legal, valid and binding obligation of Parent enforceable
against Parent
in accordance with its terms
(except as such enforceability may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other similar laws of
general applicability relating to or affecting creditor's rights, and
to general
equitable
principles).
6
Section
5.2
No
Conflicts.
(a)
No filing with any Governmental
Authority, and no authorization, consent or approval of any other Person is
necessary for the execution of this Agreement by Parent and the consummation
by
Parent of the transactions
contemplated hereby.
(b)
None of the execution and delivery
of this Agreement by Parent, the consummation by Parent of the transactions
contemplated hereby or compliance by Parent with any of the provisions hereof
shall (i) conflict with or
result in any breach of the organizational documents of Parent, (ii) result
in,
or give rise to, a violation or breach of or a default under any of the terms
of
any material contract, understanding, agreement or other instrument or
obligation to which
Parent is a party or by which Parent
or any of its assets may be bound, or (iii) violate any applicable Order, writ,
injunction, decree, judgment, statute, rule or regulation, except for any of
the
foregoing as could not reasonably be expected to impairParent's
ability to perform its
obligations under this Agreement.
Section
5.3
Reliance
by
the Shareholder. Parent understands and
acknowledges that Shareholder is entering into this Agreement in reliance upon
the execution and delivery of the Merger Agreement by Parent.
ARTICLE
VI
TERMINATION
Section
6.1
Termination. This
Agreement shall
automatically terminate, and none of Parent or Shareholder shall have any rights
or obligations hereunder and this Agreement shall become null and void and
have
no effect upon the earliest
to occur of (a) the mutual written consent of Parent and Shareholder, (b) the
Effective Time, (c) the date of termination of the Merger Agreement in
accordance with its terms, (d) the date of any change or amendment to the Merger
Agreement
that results in any decrease in the
Merger Consideration, or (e) October 31, 2009. The termination of
this Agreement shall not prevent any Party hereunder from seeking any remedies
(at law or in equity) against another Party hereto or relieve such Party
from liability for such Party's
breach of any terms of this Agreement. Notwithstanding anything to
the contrary herein, the provisions of Article VII (other than Section 7.2)
shall survive the termination of this Agreement.
ARTICLE
VII
MISCELLANEOUS
Section
7.1
Publication. Shareholder
hereby permits
the Company and Parent to publish and disclose in any forms, schedules or other
documents to be filed with the SEC (including the Proxy Statement) Shareholder's
identity and ownership of the Subject Shares and the nature of
its commitments,
arrangements and understandings pursuant to this Agreement.
7
Section
7.2
Further
Assurances. From
time to time, at the other Party's request and without further consideration,
each Party shall execute and deliver such additional documents
and take all such
further action as may be reasonably necessary or desirable to consummate the
transactions contemplated by this Agreement.
Section
7.3
Fees
and Expenses. Each of the Parties shall
be
responsible for its own fees and expenses (including, without
limitation,
the fees and expenses of investment bankers, accountants and counsel) in
connection with the entering into of this Agreement and the consummation of
the
transactions contemplated hereby and by the Merger Agreement.
Section
7.4
Amendments,
Waivers, etc. This Agreement may not
be
amended, changed, supplemented, waived or otherwise modified, except upon the
execution and delivery of a written agreement executed by each of the Parties
hereto. The failure of any Party hereto to exercise any
right, power or
remedy provided under this Agreement or otherwise available in respect hereof
at
law or in equity, or to insist upon compliance by any other Party hereto with
its obligations hereunder, and any custom or practice of the
Parties at variance with the terms
hereof shall not constitute a waiver by such Party of its right to exercise
any
such or other right, power or remedy or to demand such
compliance.
Section
7.5
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 upon
receipt) by delivery in Person, by facsimile 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 by like
notice):
(a) If
to Parent or Acquisition
Sub:
Employers
Holdings, Inc.
0000
Xxxxxxx Xxxxx
Xxxx,
Xxxxxx 00000
Attn: Xxxxxx
X. Xxxxxx
Phone: (000)
000-0000
Fax:
(000) 000-0000
with
a
copy (which shall not constitute notice) to:
Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx
Xxxxx Xxxxxx
Xxx
Xxxx,
XX 00000
Attn: Xxxxxx
X. Xxxxxxxx
Xxxxx
X.
Xxxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
8
(b) If
to Shareholder:
Xxx
X.
Xxxxxxxx
c/o
AmCOMP Incorporated
000
X.X.
Xxxxxxx Xxx
Xxxxx
Xxxx Xxxxx, XX 00000
Attn:
Xxx X. Xxxxxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
with
a
copy (which shall not constitute notice) to:
Xxxxx
& Lardner LLP
000
Xxxx
Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxx,
XX 00000
Attn: Xxxxxx
Xxxxx, Esquire
Phone:
(000) 000-0000
Fax:
(000) 000-0000
and
with
a copy (which shall not constitute notice) to:
Xxxxx
& Lardner LLP
Xxx
Xxxxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxxxxxx,
XX 00000
Attn: Xxxxxxx
Xxxxx, Esquire
Phone: (000)
000-0000
Fax: (000)
000-0000
Section
7.6
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.
Section
7.7
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 the
transactions contemplated hereby is not affected in any manner 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 an acceptable manner to the end that the transactions contemplated
hereby are fulfilled to the fullest extent possible.
Section
7.8
Entire
Agreement; Assignment. This Agreement (together
with the Merger Agreement, to the extent referred to herein, and Schedule I)
constitutes the entire agreement among the Parties with respect to the subject
matter hereof and supersedes all prior agreements and undertakings,
both written and
oral, among the Parties, or any of them, with respect to the subject matter
hereof. This Agreement shall not be assigned by operation of law or
otherwise without the prior written consent of the other Party,
exceptthat
Parent may assign all or any of its
rights and obligations hereunder to any direct or indirect wholly-owned
Subsidiary of Parent.
9
Section
7.9
Parties
in
Interest. This
Agreement shall be binding upon and inure solely to the benefit of each Party
hereto, and nothing in
this
Agreement, express or implied, is intended to or shall confer upon any other
Person any rights, benefits or remedies of any nature whatsoever under or by
reason of this Agreement.
Section
7.10
Interpretation. When
reference is
made in this Agreement
to a
Section, such reference shall be to a Section of this Agreement unless otherwise
indicated. Whenever the words "include", "includes"
or "including"
are used in this Agreement, they shall
be deemed to be followed by the words "without
limitation." The words "hereof,"
"herein,"
"hereby"
and "hereunder"
and words of similar import when used
in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement. The word "or"
shall not be exclusive. Whenever
used in
this Agreement, any noun or pronoun shall be deemed to include the plural as
well as the singular and to cover all genders. This Agreement shall
be construed without regard to any presumption or rule requiring construction
or
interpretation
against the Party drafting
or causing any instrument to be drafted.
Section
7.11
Governing
Law. This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of Delaware.
Section
7.12
Specific
Performance; Jurisdiction. The
Parties agree that
irreparable damage would occur 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 the Parties
shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement in the Court of Chancery
of the State of Delaware or, if under applicable law exclusive
jurisdictionover
such matter is vested in the
federal courts, any court of the United States located in the State of Delaware,
this being in addition to any other remedy to which such Party is entitled
at
law or in equity. In addition, each of the Parties hereto
(a)consents
to submit itself to the
personal jurisdiction of the Court of Chancery of the State of Delaware or
any
court of the United States located in the State of Delaware in the event any
dispute arises out of this Agreement or any of the transactions contemplated
by this Agreement, (b) agrees
that it will not attempt to deny or defeat such personal jurisdiction by motion
or other request for leave from any such court, (c) agrees that it will not
bring any action relating to this Agreement or any of the transactions
contemplated by this
Agreement in any court other than the Court of Chancery of the State of Delaware
or, if under applicable law exclusive jurisdiction over such matter is vested
in
the federal courts, any court of the United States located inthe
State of Delaware and (d) consents
to service being made through the notice procedures set forth in Section
7.5. Each of the Shareholder and Parent hereby agrees that service of
any process, summons, notice or document by U.S. registered mail to
the respective
addresses set forth in
Section 7.5 shall be effective service of process for any proceeding in
connection with this Agreement or the transactions contemplated
hereby.
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Section
7.13
Counterparts. This
Agreement may be
executed in counterparts (including by facsimile),
each of which
when executed shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
Section
7.14
No
Partnership, Agency or Joint Venture. This Agreement is intended
to create a contractual
relationship between Shareholder, on the one hand, and Parent, on the other
hand, and is not intended to create, and does not create, any agency,
partnership, joint venture or any like relationship between or among the parties
hereto. Without limiting
the generality of the foregoing
sentence, Shareholder (a) is entering into this Agreement solely on its own
behalf and shall not have any obligation to perform on behalf of any other
holder of Common Stock or any liability (regardless of the legaltheory
advanced) for any breach of this
Agreement by any other holder of Common Stock and (b) by entering into this
Agreement does not intend to form a "group" for purposes of Rule 13d-5(b)(1)
of
the Exchange Act or any other similar provision of applicable
Law. To the knowledge of
Shareholder, Shareholder is not affiliated with any other holder of Common
Stock
entering into a voting agreement with Parent in connection with the Merger
Agreement and has acted independently regarding its decision to enter
into
this Agreement and regarding its
investment in the Company.
[Execution
page
follows.]
11
IN
WITNESS WHEREOF, Parent and Shareholder have caused this Agreement to be duly
executed as of the day and year first above written.
|
EMPLOYERS
HOLDINGS, INC.
|
||
|
By:
|
/s/ Xxxxxxx X. Xxxxx | |
|
Name:
|
Xxxxxxx
X. Xxxxx
|
|
|
Title:
|
Chief
Executive Officer
|
|
|
XXX
X. XXXXXXXX
|
||
| /s/ Xxx X. Xxxxxxxx | ||
[Signature Page to Voting and
Support Agreement]
SCHEDULE
I
Ownership
of Common
Stock
|
Shareholder
|
Number
of Shares
|
|
Xxx
X. Xxxxxxxx
|
1,005,992
|
