VOTING AGREEMENT
Exhibit
10.1
This VOTING AGREEMENT (this
“Agreement”) is
dated as of July 27, 2010, by and between MMCAP International, Inc. SPC and MM
Asset Management Inc. (collectively, “Shareholder”) and PMA
Capital Corporation, a Pennsylvania corporation (the “Company”). All
capitalized terms used but not defined herein shall have the meanings assigned
to them in the Merger Agreement (defined below).
WHEREAS, the Shareholder is
the holder of shares of Class A common stock of the Company (“Company Common
Stock”);
WHEREAS, the Company, Old
Republic International Corporation (“ORI”) and OR New
Corp. (“Merger
Sub”) entered into an Agreement and Plan of Merger dated June 9, 2010 (as
such agreement may be subsequently amended or modified, the “Merger Agreement”),
pursuant to which Merger Sub shall merge with and into the Company and, in
connection therewith, each outstanding share of Company Common Stock will be
converted into the right to receive the Merger Consideration; and
WHEREAS, Shareholder owns or
has the right to vote the shares of Company Common Stock identified on Exhibit A hereto
(such shares, together with all shares of Company Common Stock subsequently
acquired by Shareholder during the term of this Agreement, including through the
exercise of any stock option or other equity award, warrant or similar
instrument, being referred to as the “Shares”).
NOW, THEREFORE, in
consideration of the promises, representations, warranties and agreements
contained herein, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto, intending to be
legally bound, agree as follows:
Section
1. Agreement to Vote
Shares. Shareholder agrees that, prior to the Expiration Date
(as defined in Section 6), at any meeting of shareholders of the Company,
however called, or at any adjournment or postponement thereof, or in connection
with any written consent of the shareholders of the Company, except as otherwise
agreed to in writing in advance by the Company, Shareholder shall:
(a) appear
at each such meeting, in person or by proxy, and thereby cause the Shares to be
counted as present thereat for purposes of calculating a quorum;
and
(b) from
and after the date hereof until the Expiration Date, vote (or cause to be
voted), in person or by proxy, or deliver a written consent (or cause a consent
to be delivered) with respect to, all the Shares (whether acquired heretofore or
hereafter) that are beneficially owned by Shareholder, or as to which
Shareholder has, directly or indirectly, the right to vote or direct the voting,
in the manner recommended by the Company’s Board of Directors with respect to
(i) approval of the Merger Agreement; (ii) any matter reasonably necessary for
consummation of the transactions contemplated by the Merger Agreement; and (iii)
any Alternative Proposal.
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Section
2. No
Inconsistent Agreements. Shareholder hereby agrees that
Shareholder shall not enter into any voting agreement or grant a proxy or power
of attorney with respect to the Shares that is inconsistent with Shareholder’s
obligations under this Agreement.
Section
3. Company
Board Action. The Company’s Board of Directors (the “Board”)
agrees to make a determination that Shareholder is an “Exempted Person,” as such
term is defined in the Company’s Section 382 Right Agreement dated August 6,
2009, for so long as the Shareholder beneficially owns more than 5% but less
than 10% of the outstanding Company Common Stock or until the Board of Directors
shall earlier determine.
Section
4. Representations and
Warranties of Shareholder. Shareholder represents and warrants
to and agrees with the Company as follows:
(a) Shareholder
has all requisite capacity and authority to enter into and perform his, her or
its obligations under this Agreement.
(b) This
Agreement has been duly executed and delivered by Shareholder, and assuming the
due authorization, execution and delivery by the Company, constitutes the valid
and legally binding obligation of Shareholder enforceable against Shareholder in
accordance with its terms (except as such enforceability may be limited by
applicable bankruptcy, insolvency and similar laws affecting creditors’ rights
and remedies generally and to general principles of equity, whether applied in a
court of law or a court of equity).
(c) The
execution and delivery of this Agreement by Shareholder does not, and the
performance by Shareholder of his, her or its obligations hereunder and the
consummation by Shareholder of the transactions contemplated hereby will not,
violate or conflict with, or constitute a default under, any agreement,
instrument, contract or other obligation or any order, arbitration award,
judgment or decree to which Shareholder is a party or by which Shareholder is
bound, or any statute, rule or regulation to which Shareholder is subject or, in
the event that Shareholder is a corporation, partnership, trust or other entity,
any charter, bylaw or other organizational document of Shareholder.
(d) Shareholder
is the beneficial owner of and has good title to all of the Shares set forth on
Exhibit A
hereto, and the Shares are so owned free and clear of any liens, security
interests, charges or other encumbrances, except as otherwise described on Exhibit A
hereto. Shareholder does not own, of record or beneficially, any
shares of capital stock of the Company other than the Shares Shareholder has the
right to vote the Shares, and none of the Shares is subject to any voting trust
or other agreement, arrangement or restriction with respect to the voting of the
Shares, except as contemplated by this Agreement.
Section
5. Specific
Performance; Remedies; Attorneys Fees. Shareholder
acknowledges that it will be impossible to measure in money the damage to the
Company if Shareholder fails to comply with the obligations imposed by this
Agreement and that, in the event of any such failure, the Company will not have
an adequate remedy at law or in equity. Accordingly,
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Shareholder
agrees that injunctive relief or other equitable remedy, in addition to remedies
at law or in damages, is the appropriate remedy for any such failure and will
not oppose the granting of such relief on the basis that the Company has an
adequate remedy at law. Shareholder further agrees that Shareholder
will not seek, and agrees to waive any requirement for, the securing or posting
of a bond in connection with the Company’s seeking or obtaining such equitable
relief. Shareholder also agrees that if Shareholder fails to comply
in any material respect with the obligations imposed by this Agreement,
Shareholder shall pay to the Company all of the Company’s reasonable costs and
expenses (including attorneys’ fees) in connection with enforcing its rights
under this Agreement.
Section
6. Term of
Agreement; Termination. As used in this Agreement, the term
“Expiration
Date” shall mean the earlier to occur of (a) the receipt of shareholder
approval of the Merger Agreement, (b) such date and time as the Merger
Agreement shall be terminated, or (c) upon mutual written agreement of the
parties to terminate this Agreement. Upon termination or expiration,
no party shall have any further obligations or liabilities hereunder; provided,
however, such termination shall not relieve any party from liability for any
willful breach of this Agreement prior to such termination. Agreement
is to terminate if none of the above has occurred before October 30,
2010.
Section
7. Entire
Agreement; Amendments. This Agreement supersedes all prior
agreements, written or oral, among the parties hereto with respect to the
subject matter hereof and contains the entire agreement among the parties with
respect to the subject matter hereof. This Agreement may not be
amended, supplemented or modified, and no provisions hereof may be modified or
waived, except by an instrument in writing signed by each party
hereto. No waiver of any provision hereof by either party shall be
deemed a waiver of any other provision hereof by any such party, nor shall any
such waiver be deemed a continuing waiver of any provision hereof by such
party.
Section
8. Severability. In
the event that any one or more provisions of this Agreement shall for any reason
be held invalid, illegal or unenforceable in any respect, by any court of
competent jurisdiction, such invalidity, illegality or unenforceability shall
not affect any other provisions of this Agreement and the parties shall use
their reasonable efforts to substitute a valid, legal and enforceable provision
which, insofar as practical, implements the purposes and intents of this
Agreement.
Section
9. Further
Assurances. Shareholder shall, from time to time, execute and
deliver, or cause to be executed and delivered, such additional or further
consents, documents and other instruments as the Company may reasonably request
for the purpose of effectively carrying out the transactions contemplated by
this Agreement.
Section
10. Governing
Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the Commonwealth of Pennsylvania, without giving
effect to choice of law principles that would cause the laws of another
jurisdiction to apply.
Section
11. Jurisdiction. Each
of the parties hereto (i) consents to submit itself to the personal jurisdiction
of the courts of the Commonwealth of Pennsylvania or, if under applicable law
exclusive jurisdiction over such matter is vested in the federal courts, any
court of the United
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States
located in the Commonwealth of Pennsylvania, in the event any dispute arises out
of this Agreement or any of the transactions contemplated by this Agreement,
(ii) agrees that it will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court, (iii)
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
courts of the Commonwealth of Pennsylvania or, if under applicable law exclusive
jurisdiction over such matter is vested in the federal courts, any court of the
United States located in the Commonwealth of Pennsylvania, and (iv) to the
fullest extent permitted by law, consents to service being made through the
notice procedures set forth in this Agreement. Each of the parties
hereto hereby agrees that, to the fullest extent permitted by law, service of
any process, summons, notice or document by U.S. registered mail to the
respective addresses set forth in this Agreement shall be effective service of
process for any suit or proceeding in connection with this Agreement or the
transactions contemplated hereby.
Section
12. Publication. Shareholder
hereby permits the Company to publish and disclose in press releases, the
Company’s proxy statement and any other disclosures or filings required by
applicable law, its identity and ownership of shares of the Company Common
Stock, the nature of the commitments, arrangements and understandings pursuant
to this Agreement, and/or the text of this Agreement.
Section
13. 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 the Company, to:
PMA
Capital Corporation
000
Xxxxxx Xxxxxxx
Xxxx
Xxxx, XX 00000
Attention: Executive
Vice President and General Counsel
Facsimile: (000)
000-0000
(b) if
to Shareholder, to:
MMCAP
International Inc., SPC
c/o MM
Asset Management Inc.
000
Xxxxxxxx Xxxxxx Xxxx
Xxxxx
0000
Xxxxxxx,
Xxxxxxx
Xxxxxx
X0X 0X0
Attention: Xxxxxx
Xxxxx
Facsimile:
Section
14. Counterparts. This
Agreement may be executed and delivered (including by facsimile, email or other
electronic transmission) in one or more counterparts, each of which
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when
executed shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
IN WITNESS WHEREOF, the
parties hereto have executed and delivered this Agreement as of the date first
written above.
PMA
CAPITAL CORPORATION
By: /s/ Xxxxxxx X.
Xxxxxxxxxxx
Name: Xxxxxxx X.
Xxxxxxxxxxx
Title: Executive Vice
President and
General
Counsel
SHAREHOLDER:
MMCAP
INTERNATIONAL, INC. SPC
By: /s/ Xxx
Xxxxxx
Name: Xxx Xxxxxx
Title: PM
MM
MANAGEMENT INC.
By: /s/ Xxx
Xxxxxx
Name: Xxx Xxxxxx
Title: PM
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EXHIBIT
A
SHARES
OF COMPANY COMMON STOCK BENEFICIALLY OWNED BY
SHAREHOLDER
|
Company
|
|
|
Shareholder
|
Common
Stock
|
|
MMCAP
International, Inc. SPC
|
1,616,129
|
|
MM
Asset Management Inc.
|
1,616,129
|
