EXHIBIT 2
VOTING AGREEMENT
VOTING AGREEMENT dated as of May 6, 1998, among Fidelity and
Deposit Company of Maryland, a corporation organized under the laws of
Maryland ("Parent"), F&D Merger Sub, Inc., a Pennsylvania corporation and a
wholly owned subsidiary of Parent ("Sub"), and each of the other persons
identified on Exhibit A hereto (the "Shareholders").
WHEREAS, the Shareholders desire that Mountbatten, Inc., a
Pennsylvania corporation (the "Company"), Parent and Sub 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"), which provides, among
other things, that Sub will merge with and into the Company upon the terms and
subject to the conditions set forth in the Merger Agreement (the "Merger"). In
connection with the Merger, subject to certain exceptions, each share of
Common Stock, par value $0.001 per share, of the Company ("Company Common
Stock") will be converted into the right to receive cash as provided in the
Merger Agreement.
WHEREAS, the Shareholders are executing this Agreement as an
inducement to Parent and Sub to execute and deliver the Merger Agreement.
NOW THEREFORE, in consideration of the execution and
delivery by Parent and Sub of the Merger Agreement and the mutual covenants,
conditions and agreements contained therein and herein, the parties hereto
agree as follows:
SECTION 1. Representations and Warranties. Each of the
Shareholders represents and warrants to Parent and Sub as to himself (and not
as to any other Shareholder) as follows:
(a) Such Shareholder is the record and beneficial owner of
the number of shares of Company Common Stock (together with any shares of
Company Common Stock with respect to which the Shareholder obtains voting
power prior to the Effective Time of the Merger, the "Shares") as set forth on
Exhibit A hereto. Except for such number of Shares and except for shares
issuable in connection with options outstanding as of the date hereof, such
Shareholder is not the record or beneficial owner of any shares of Company
Common Stock.
(b) Such Shareholder has the authority to execute, deliver
and perform this Agreement without the necessity of obtaining any third party
non-governmental consent, approval, authorization, or waiver, or giving of any
notice or otherwise, except for such consents as have been obtained, are
unconditional and are in full force and effect or as set forth on Schedule 2.4
to the Merger Agreement.
(c) This Agreement has been duly executed and delivered by
such Shareholder and, assuming due execution and delivery thereof by Parent
and Sub, constitutes the legal, valid, and binding obligation of such
Shareholder enforceable against the Shareholder in accordance with its terms
except (i) as may be limited by bankruptcy, reorganization, insolvency, and
similar laws of general application relating to or affecting the enforcement
of creditors' rights or the relief of debtors and (ii) that the remedy of
specific performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought.
(d) The execution, delivery, and performance of this
Agreement by such Shareholder will not (i) result in the breach of or
constitute a default under any contract to which such Shareholder is subject,
(ii) constitute a violation of any Law applicable or relating to such
Shareholder or (iii) result in the creation of any Lien.
(e) Except for this Agreement, there are no voting trusts or
other agreements or understandings, including, without limitation, any
proxies, in effect governing the voting of the Shares.
(f) Such Shareholder does not hold, and has not issued, any
proxies, or securities convertible into or exchangeable for or any options,
warrants, or other rights to purchase or subscribe for any shares of Company
Common Stock.
(g) The Shares and the certificates representing such Shares
are now and at all times during the term hereof will be held by such
Shareholder, or by a nominee or custodian for the benefit of such Shareholder,
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free and clear of all Liens, proxies, voting trusts or agreements,
understandings or arrangements or any other encumbrances whatsoever other than
as created by this Agreement.
(h) No broker, investment banker, financial adviser or other
person is entitled to any broker's, finder's, financial adviser's or other
similar fee or commission from Parent, Sub or the Company in connection with
the transactions contemplated hereby based upon arrangements made by any of
the Shareholders.
(i) Such Shareholder understands and acknowledges that
Parent and Sub are entering into the Merger Agreement in reliance upon such
Shareholder's execution and delivery of this Agreement.
(j) There are no undertakings, agreements, arrangements or
understandings of any nature or kind whatsoever in effect between such
Shareholder, or any of his affiliates, on the one hand, and the Company or any
of its subsidiaries, on the other hand, which have not been fully and
completely disclosed, in writing, to Parent.
SECTION 2. Voting Agreement. Each Shareholder agrees with,
and covenants to, Parent and Sub as follows:
(a) At any meeting of Shareholders of the Company called to
vote upon the Merger, the Charter Amendment, the Merger Agreement or the other
transactions contemplated by the Merger Agreement or at any adjournment
thereof or in any other circumstances upon which a vote, consent or other
approval with respect to the Merger, the Charter Amendment, the Merger
Agreement or the other transactions contemplated by the Merger Agreement is
sought while the Merger Agreement remains in effect, such Shareholder shall
vote (or cause to be voted) or shall consent, execute a consent or cause to be
executed a consent in respect of the Shares in favor of the Merger, the
Charter Amendment, the execution and delivery by the Company of the Merger
Agreement and the approval of the terms thereof and each of the other
transactions contemplated by the Merger Agreement.
(b) At any meeting of Shareholders of the Company or at any
adjournment thereof or in any other circumstances upon which their vote,
consent or other approval is sought while the Merger Agreement remains in
effect, such Shareholder shall vote (or cause to be voted) the Shares against
(i) any Takeover Proposal (as defined in the Merger Agreement) or any action
which is a component of any Takeover Proposal or would be a component of a
Takeover Proposal if it were contained in a proposal, (ii) any merger
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agreement or merger (other than the Merger Agreement and the Merger),
reorganization, recapitalization, dissolution, liquidation or winding up of or
by the Company or (iii) any amendment of the Company's Articles of
Incorporation or By-laws which amendment would in any manner partially or
wholly prevent or materially impede, interfere with or delay the Merger, the
Merger Agreement or any of the other transactions contemplated by the Merger
Agreement (each of the foregoing in clause (i), (ii) or (iii) above, a
"Competing Transaction").
SECTION 3. Covenants of the Shareholder. Each Shareholder
agrees with, and covenants to, Parent and Sub as follows:
(a) Such Shareholder shall not (i) transfer (which term
shall include, without limitation, for the purposes of this Agreement, any
sale, gift, pledge, encumbrance (other than an unforeclosed pledge or
encumbrance for financing purposes where the Shareholder retains sole voting
power with respect to all pledged securities), encumbrance or other
disposition), or consent to any transfer of, any or all the Shares or any
interest therein, except pursuant to the Merger and the Merger Agreement, (ii)
enter into any contract, option or other agreement or understanding with
respect to any transfer of any or all such Shares or any interest therein,
(iii) grant any proxy, power-of-attorney or other authorization in or with
respect to such Shares, except under or in accordance with this Agreement or
(iv) deposit such Shares into a voting trust, enter into a voting agreement or
arrangement with respect to such Shares or otherwise limit such Shareholder's
power to vote its Shares.
(b) Such Shareholder shall not, nor shall it permit any
director, officer, employee, investment banker, attorney or other adviser or
representative of the Shareholder to, directly or indirectly, (i) solicit or
initiate, or knowingly encourage the submission of, any Competing Proposal or
(ii) participate in any discussions or negotiations regarding, or furnish to
any person any non-public information with respect to, or take any other
action to facilitate any inquiries or the making of any proposal that
constitutes, or may reasonably be expected to lead to, any Competing
Transaction. Without limiting the foregoing, it is understood that any
violation of the restrictions set forth in the preceding sentence by any such
director, officer, employee, investment banker, attorney or other adviser or
representative of such Shareholder shall be deemed to be a violation of this
Section 3(b) by the Shareholder.
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(c) Such Shareholder shall use all reasonable efforts to
obtain all Regulatory Approvals required to consummate the transactions
contemplated hereby.
SECTION 4. Certain Events. Each Shareholder agrees that this
Agreement and the obligations hereunder shall attach to the Shares and shall
be binding upon any person or entity to which legal or beneficial ownership of
such Shares shall pass, whether by operation of law or otherwise, including
without limitation such Shareholder's successors. Upon any transfer of shares
of Company Common Stock by such Shareholder (without limiting in any way the
terms of Section 3(a) hereof), such Shareholder shall provide Parent with
written notice within two days of such transfer of the name, address and
relationship to such Shareholder, if any, of such transferee, the number of
shares transferred and the terms governing such transfer. In the event of any
stock split, stock dividend, merger, reorganization, recapitalization or other
change in the capital structure of the Company affecting the Company Common
Stock, or the acquisition of additional shares of Company Common Stock or
other voting securities of the Company by such Shareholder, the number of
Shares set forth in Section 1(a) hereof shall be adjusted appropriately and
this Agreement and the obligations hereunder shall attach to any additional
shares of Company Common Stock or other voting securities of the Company
issued to or acquired by such Shareholder.
SECTION 5. Shareholder Capacity. No person executing this
Agreement who is or becomes or designates or has the capacity to designate
during the term hereof a director of the Company makes any agreement or
understanding herein in his or her capacity as such director or on behalf of
any such designee. Each Shareholder signs solely in such Shareholder's
capacity as the record and beneficial owner of the Shares.
SECTION 6. Further Assurances. Each Shareholder shall, upon
request of Parent, execute and deliver any additional documents and take such
further actions as may reasonably be deemed by Parent to be necessary or
desirable to carry out the provisions hereof.
SECTION 7. Termination. All provisions of this Agreement
will survive the Effective Time in accordance with their respective terms;
provided, however, that this Agreement, and all rights and obligations of the
parties hereunder, shall terminate upon the date upon which the Merger
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Agreement is terminated in accordance with its terms, except that no
Shareholder shall be relieved of any liability for breach of this Agreement by
such Shareholder prior to such termination.
SECTION 8. Defined Terms. Capitalized terms used and not
otherwise defined in this Agreement shall have the respective meanings
assigned to them in the Merger Agreement.
SECTION 9. Notices. All notices, requests, claims, demands
and other communications under this Agreement shall be sufficiently given if
sent by registered or certified mail, postage prepaid, or overnight air
courier service, or telecopy or facsimile transmission (with hard copy to
follow) to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice): (i) if to Parent, Sub or
the Company, to the address set forth in Section 8.2 of the Merger Agreement;
and (ii) if to any Shareholder, to the address set forth opposite such
Shareholder's name on Exhibit A hereto.
SECTION 10. 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 11. Counterparts; Effectiveness. This Agreement may
be executed in two or more counterparts, all of which shall be considered one
and the same agreement and shall become effective when one or more
counterparts have been signed by each of Parent, Sub, the Company and the
Shareholders and delivered to Parent, Sub, the Company and the Shareholders.
SECTION 12. Entire Agreement. This Agreement (including the
documents and instruments referred to herein) constitutes the entire
agreement, and supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof.
SECTION 13. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the Commonwealth of
Pennsylvania, without regard to any applicable conflicts of law principles of
such State.
SECTION 14. Successors and Assigns. Neither this Agreement
nor any of the rights, interests or obligations under this Agreement shall be
assigned, in whole or in part, by operation of law or otherwise, by any of the
parties without the prior written consent of the other parties, except as
expressly contemplated by Section 3(a); provided, however, that Sub may assign
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its rights and obligations to another wholly owned subsidiary of Parent that
is the assignee of Sub's rights under the Merger Agreement. Any assignment in
violation of the foregoing shall be void.
SECTION 15. Enforcement. Each party agrees that irreparable
damage would occur and that the other party hereto would not have any adequate
remedy at law 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 each party shall be entitled to an
injunction or injunctions to prevent breaches by the other party hereto of
this Agreement and to enforce specifically the terms and provisions of this
Agreement in any court of the United States located in the Commonwealth of
Pennsylvania or in Pennsylvania State court, this being in addition to any
other remedy to which they are entitled at law or in equity. In addition, each
of the parties hereto (i) consents to submit such party to the personal
jurisdiction of any Federal court located in the Commonwealth of Pennsylvania
or any Pennsylvania State court in the event any dispute arises out of this
Agreement or any of the transactions contemplated hereby, (ii) agrees that
such party 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
such party will not bring any action relating to this Agreement or any of the
transactions contemplated hereby in any court other than a Federal court
sitting in the Commonwealth of Pennsylvania or a Pennsylvania State court.
SECTION 16. Severability. If any term or provision hereof,
or the application thereof to any circumstance, shall, to any extent, be held
by a court of competent jurisdiction to be invalid or unenforceable with
respect to such jurisdiction, and only to such extent, and the remainder of
the terms and provisions hereof, and the application thereof to any other
circumstance, shall remain in full force and effect, shall not in any way be
affected, impaired or invalidated, and shall be enforced to the fullest extent
permitted by law, and the parties hereto shall reasonably negotiate in good
faith a substitute term or provision that comes as close as possible to the
invalidated or unenforceable term or provision, and that puts each party in a
position as nearly comparable as possible to the position each such party
would have been in but for the finding of invalidity or unenforceability,
while remaining valid and enforceable.
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SECTION 17. Amendment; Modification; Waiver. No amendment,
modification or waiver in respect of this Agreement shall be effective against
any party unless it shall be in writing and signed by such party.
SECTION 18. Expenses. Except as otherwise provided in the
Merger Agreement, Parent, Sub, the Shareholders and the Company shall each
bear their own legal fees and other costs and expenses with respect to the
negotiation, execution and delivery of this Agreement and consummation of the
transactions contemplated hereby.
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IN WITNESS WHEREOF, Parent, Sub and the Shareholders have
caused this Agreement to be duly executed and delivered as of the date first
written above.
FIDELITY AND DEPOSIT COMPANY OF MARYLAND
By /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
F&D MERGER SUB, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
SHAREHOLDERS:
/s/ Xxxxxxx X. Xxxxx
----------------------------------------
Xxxxxxx X. Xxxxx
/s/ Xxx X. Xxxxxxxxx
----------------------------------------
Xxx X. Xxxxxxxxx
/s/ Xxxx Xxxxx
----------------------------------------
Xxxx Xxxxx
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EXHIBIT A
Shares Company
Shareholder Common Stock Address
----------- ------------ -------
Xxxxxxx X. Xxxxx 277,376 000 Xxxxx Xxxx
Xxxx Xxxxxx, XX 00000
Xxx X. Xxxxxxxxx 42,500 0000 Xxxxxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Xxxx Xxxxx 292,959 000 Xxxxxxxxx Xxxx
Xxxxxx Xxxxxxx, XX 00000
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