EXHIBIT B
VOTING AGREEMENT
VOTING AGREEMENT ("Agreement"), dated as of March 13, 2008, by and among
Palisades Safety and Insurance Association, an insurance exchange organized
under NJSA 17:50-1 et seq. ("Parent"), Apollo Holdings, Inc., a New Jersey
corporation wholly owned by Parent ("Merger Sub"), and Xxxxx X. Xxxxxx
("Xxxxxx"),
WHEREAS, Parent, Merger Sub and National Atlantic Holdings Corporation, a
New Jersey corporation (the "Company"), have entered into an Agreement and Plan
of Merger, dated of even date herewith (the "Merger Agreement"), which provides
for the business combination transaction (the "Merger") upon the terms and
subject to the conditions set forth therein, and in connection with which each
outstanding share of common stock, no par value, of the Company (each, a "Common
Share") will be canceled and converted into the right to receive $6.25 in cash
per share;
WHEREAS, Xxxxxx in the aggregate beneficially owns and has sole voting
power with respect to 1,512,140 Common Shares (such Common Shares, together with
any securities issued or exchanged with respect to such shares of common stock
upon any recapitalization, reclassification, merger, consolidation, spin-off,
partial or complete liquidation, stock dividend, split-up or combination of the
securities of the Company or any other change in the Company's capital
structure, and any options, warrants or other rights to acquire any additional
Common Shares, the "Covered Shares");
WHEREAS, in connection with the execution of the Merger Agreement, Parent
has requested that Xxxxxx execute and deliver this Agreement on a date even
herewith; and
WHEREAS, all capitalized terms used in this Agreement without definition
herein shall have the meanings ascribed to them in the Merger Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual covenants and
agreements contained herein and other good and valuable consideration, the
receipt of which are hereby acknowledged, Xxxxxx, Parent and Merger Sub agree as
follows:
1. Agreement to Vote. Xxxxxx agrees that, prior to the Expiration Date (as
defined below), at any meeting of the stockholders of the Company, or in
connection with any written consent of the stockholders of the Company, with
respect to the Merger, the Merger Agreement or any Acquisition Proposal or any
adjournment or postponement thereof, Xxxxxx shall:
(a) appear at such meeting or otherwise cause the Covered Shares and any
other Common Shares which he acquires beneficial ownership of after the date
hereof ("After Acquired Shares") to be counted as present thereat for purposes
of calculating a quorum; and
B-1
(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) covering all of the Covered Shares and any After
Acquired Shares that Xxxxxx shall be entitled to so vote, whether such Common
Shares are beneficially owned by Xxxxxx on the date of this Agreement or are
subsequently acquired, (i) in favor of the recommendation of the Board of
Directors of the Company to the holders of Common Shares; (ii) against any
Acquisition Proposal, or any letter of intent, memorandum of understanding,
agreement in principle, acquisition agreement, merger agreement or similar
agreement providing for the consummation of a transaction contemplated by any
Acquisition Proposal (other than the Merger and other than following any Change
in Recommendation and termination of the Merger Agreement made by the Board of
Directors pursuant to the requirements of the Merger Agreement), and (iii) in
favor of any proposal to adjourn a shareholders' meeting which the Company,
Merger Sub and Parent support.
2. Expiration Date. As used in this Agreement, the term "Expiration Date"
shall mean the earliest to occur of (i) the Effective Time; (ii) such date as
the Merger Agreement is terminated pursuant to Article VIII thereof; or (iii)
upon mutual written agreement of the parties to terminate this Agreement. Upon
termination or expiration of this Agreement, no party shall have any further
obligations or liabilities under this Agreement; provided however, (i) Sections
8 through 18 shall survive any such expiration if the Effective Time shall have
occurred, and (ii) such termination or expiration shall not relieve any party
from liability for any willful breach of this Agreement prior to termination
hereof.
3. Agreement to Retain Covered Shares. From and after the date hereof
until, (A) in the case of clause (i) below, the Expiration Date, and (B) in the
case of clause (ii) below, immediately after the vote is taken at a meting of
shareholders of the Company (taking into account any postponements or
adjournments thereof) for the purpose of approving the adoption and approval of
the Merger Agreement and the transactions contemplated thereby, including the
Merger, Xxxxxx shall not, except as contemplated by this Agreement or the Merger
Agreement, directly or indirectly, (i) grant any proxies or enter into any
voting trust or other agreement or arrangement with respect to the voting of any
Covered Shares and any After Acquired Shares or (ii) sell, transfer, assign,
dispose of, or enter into any contract, option, commitment or other arrangement
or understanding with respect to the sale, transfer, assignment or other
disposition of, the beneficial ownership of any Covered Shares.
4. Representations and Warranties of Xxxxxx. Xxxxxx hereby represents and
warrants to Parent and Merger Sub as follows:
(a) Xxxxxx has the power and the right to enter into, deliver and perform
the terms of this Agreement;
(b) this Agreement has been duly and validly executed and delivered by
Xxxxxx and (assuming this Agreement constitutes a valid and binding
B-2
agreement of Parent and Merger Sub) is a legal, valid and binding agreement with
respect to Xxxxxx, enforceable against Xxxxxx in accordance with its terms
(except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and similar laws of general
applicability relating to or affecting creditors' rights or by general equity
principles);
(c) Xxxxxx beneficially owns in the aggregate at least 1,512,140 Common
Shares and has sole or shared, and otherwise unrestricted, voting power with
respect to such Common Shares;
(d) no proceedings are pending which, if adversely determined, will have a
material adverse effect on any ability to vote or dispose of any of the Covered
Shares;
(e) the execution and delivery of this Agreement by Xxxxxx do not, and the
performance by Xxxxxx of his obligations hereunder and the consummation by
Xxxxxx of the transactions contemplated hereby will not, violate or conflict
with, or constitute a breach or default under, any agreement, instrument,
contract or other obligation or any order, arbitration award, judgment or decree
to which Xxxxxx is a party or by which Xxxxxx is bound, or any statute, rule or
regulation to which Xxxxxx is subject. Except as expressly contemplated hereby,
Xxxxxx is not a party to any voting agreement or voting trust relating to the
Covered Shares or After Acquired Shares;
(f) Xxxxxx confirms that he is not relying on any non-public information
concerning the Covered Shares obtained from, or provided by, Parent or Merger
Sub, in determining to vote in favor of the recommendation of the Board of
Directors, nor shall there be any obligation of the Parent or Merger Sub to
provide any non-public information concerning the Covered Shares; and
(g) Xxxxxx acknowledges and confirms that he has reviewed this Agreement
and the Merger Agreement and has had the opportunity to review both such
agreements with counsel and other advisors.
5. Representations and Warranties of Parent and Merger Sub. Each of Parent
and Merger Sub hereby represents and warrants to Xxxxxx as follows:
(a) each of Parent and Merger Sub has the power and the right to enter
into, deliver and perform the terms of this Agreement; and
(b) this Agreement has been duly and validly executed and delivered by
Parent and Merger Sub and (assuming this Agreement constitutes a valid and
binding agreement of Xxxxxx) is a legal, valid and binding agreement with
respect to Parent and Merger Sub, enforceable against each in accordance with
its terms (except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and similar laws of
general applicability relating to or affecting creditors' rights or by general
equity principles).
6. No Solicitation. From and after the date hereof until the Expiration
Date, neither Xxxxxx nor his affiliates will solicit proxies or become a
"participant" in any solicitation (as such terms are defined in Regulation 14A
under the Securities Exchange Act of 1934) in opposition to the solicitation of
proxies by the Company and Parent for the Merger Agreement.
B-3
From and after the date hereof until the Expiration Date, in all public
statements and public filings made with respect to the voting of the Covered
Shares, Xxxxxx and his affiliates will indicate that they are voting in favor of
the Merger Agreement and otherwise in accordance with Section 1 above.
7. Survival of Representations and Warranties. The representations and
warranties contained herein shall not be deemed waived or otherwise affected by
any investigation made by the other parties hereto. The representations and
warranties contained herein shall expire with, and be terminated and
extinguished upon, consummation of the Merger or termination of this Agreement
in accordance with the terms hereof, but no party shall be relieved for prior
breach thereof.
8. Specific Enforcement. Xxxxxx has signed this Agreement intending to be
legally bound thereby. Xxxxxx expressly agrees that this Agreement shall be
specifically enforceable against Xxxxxx in any court of competent jurisdiction
within the State of New Jersey in accordance with its terms.
9. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original but all of which together
shall constitute one and the same instrument.
10. No waivers. No waivers of any breach of this Agreement extended by
Parent or Merger Sub to Xxxxxx shall be construed as a waiver of any rights or
remedies of Parent or Merger Sub with respect to any other stockholder of the
Company who has executed an agreement substantially in the form of this
Agreement with respect to shares of the Company held or subsequently held by
such stockholder or with respect to any subsequent breach of Xxxxxx or any other
such stockholder of the Company. No waiver of any provisions hereof by either
party shall be deemed a waiver of any other provisions hereof by any such party,
nor shall any such waiver be deemed a continuing waiver of any provision hereof
by such party.
11. Entire Agreement. 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.
12. Notices. All notices and other communications hereunder shall be in
writing and shall be sufficient if sent by facsimile transmission (provided that
any notice received by facsimile transmission or otherwise at the addressee's
location on any business day after 5:00 p.m. (addressee's local time) shall be
deemed to have been received at 9:00 a.m. (addressee's local time) on the next
business day), by reliable overnight delivery service (with proof of service),
hand delivery or certified or registered mail (return receipt requested and
first-class postage prepaid), addressed as follows (or at such other address for
a party as shall be specified in a notice given in accordance with this
Section):
(i) if to Xxxxxx:
B-4
National Atlantic Holdings Corporation
0 Xxxxxxx Xxx
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
with a copy to:
Xxxxx & XxXxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Xxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
(ii) if to Parent or Merger Sub to:
Palisades Safety and Insurance Association
Xxxxxxx Corporate Center II
0 Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx, President
Facsimile:(000) 000-0000
with a copy to:
Palisades/High Point Corporate Law
000 Xxxxxx Xxxxxxx Xxxx, Xxxxxxxx 0
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx, SPHR
Chief Legal Officer
Facsimile: (000) 000-0000
and
Ropes & Xxxx LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxxx X. Fine
Facsimile: (000) 000-0000
Any party to this Agreement may give any notice or other communication
hereunder using any other means (including personal delivery, messenger service,
telex, ordinary mail or electronic mail), but no such notice of other
communication shall be deemed to have been duly given unless and until it
actually is received by the party for whom it is intended. Any party to this
B-5
Agreement may change the address to which notices and other communications
hereunder are to be delivered by giving the other parties to this Agreement
notice in the manner herein set forth. 13. No Third Party Beneficiaries. This
Agreement is not intended, and shall not be deemed, to confer any rights or
remedies upon any person other than the parties hereto and their respective
successors and permitted assigns or to otherwise create any third-party
beneficiary hereto.
14. Assignment. Neither this Agreement nor any of the rights, interests or
obligations under this Agreement may be assigned or delegated, in whole or in
part, by operation of law or otherwise by any of the parties hereto without the
prior written consent of the other parties, and any such assignment without such
prior written consent shall be null and void. Subject to the preceding sentence,
this Agreement shall be binding upon, inure to the benefit of, and be
enforceable by, the parties hereto and their respective successors and permitted
assigns, heirs, executors, administrators and other legal representatives, as
the case may be.
15. 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 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 transactions contemplated hereby be consummated as originally
contemplated to the fullest extent possible.
16. Interpretation. When reference is made in this Agreement to a Section,
such reference shall be to a Section of this Agreement, unless otherwise
indicated. The headings contained in this Agreement are for convenience of
reference only and shall not affect in any way the meaning or interpretation of
this Agreement. The language used in this Agreement shall be deemed to be the
language chosen by the parties hereto to express their mutual intent, and no
rule of strict construction shall be applied against any party. Whenever the
context may require, any pronouns used in this Agreement shall include the
corresponding masculine, feminine or neuter forms, and the singular form of
nouns and pronouns shall include the plural, and vice versa. Any reference to
any federal, state, local or foreign statute or law shall be deemed also to
refer to all rules and regulations promulgated thereunder, unless the context
requires otherwise. Whenever the words "include," "includes" or "including" are
used in this Agreement, they shall be deemed to be followed by the words
"without limitation." No summary of this Agreement prepared by the parties shall
affect in any way the meaning or interpretation of this Agreement.
17. Governing Law. This Agreement, and all claims or causes of action
(whether in contract or tort) that may be based upon, arise out or relate to
this Agreement or the negotiation, execution or performance of this Agreement
(including any claim or cause of action based upon, arising out of or related to
any representation or warranty made in or in
B-6
connection with this Agreement or as an inducement to enter into this
Agreement), shall be governed by the internal laws of the State of New Jersey
without giving effect to any choice or conflict of laws provision or rule.
18. Waiver of Jury Trial. Each of the parties hereto hereby waives to the
fullest extent permitted by applicable Law any right it may have to a trial by
jury with respect to any litigation directly or indirectly arising out of, under
or in connection with this Agreement. Each of the parties hereto (a) certifies
that no representative, agent or attorney of any other party has represented,
expressly or otherwise, that such other party would not, in the event of
litigation, seek to enforce that foregoing waiver and (b) acknowledges that it
and the other parties hereto have been induced to enter into this Agreement by,
among other things, the mutual waivers and certifications in this Section 18.
19. 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.
[SIGNATURE PAGE FOLLOWS]
B-7
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be signed individually or by its respective duly authorized officer as of the
date first written above.
PALISADES SAFETY AND INSURANCE
ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President
APOLLO HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President
XXXXX X. XXXXXX
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
