EXHIBIT 4.4
STANDSTILL AND VOTING AGREEMENT
THIS STANDSTILL AND VOTING AGREEMENT, dated as of October ___, 1992 (the
"Agreement"), among CMAC INVESTMENT CORPORATION, a Delaware corporation
("Investment"), and the Reliance Group Holdings, Inc., a Delaware corporation
("Reliance").
WINESSETH:
WHEREAS, upon the completion of Investment's initial public offering
(assuming no exercise of the underwriters' over-allotment options) Reliance will
be the beneficial owner of 1,300,000 shares of the Common Stock of Investment,
par value $.001 per share (such class of Common Stock) is referred to herein as
the "Investment Common Stock"); and
WHEREAS, Reliance and Investment wish to provide for a constructive and
mutually beneficial relationship.
NOW, THEREFORE, intending to be legally bound, the parties hereto agree as
follows:
Section 1. Certain Definitions. As used in this Agreement, the following
terms shall have the following meanings:
1.1. "Investment Voting Securities" shall mean Investment Common Stock,
any other class of Investment securities entitled to vote generally for the
election of directors, and any other securities, warrants or options or rights
of any nature (whether or not issued by Investment) which are convertible into,
exchangeable for, or exercisable for the purchase of, or which give the holder
thereof any rights in respect of Investment Common Stock or any other class of
Investment securities entitled to vote generally for the election of directors.
"investment Voting Securities" shall not include shares of Investment's $4.125
Preferred Stock.
1.2. "Reliance Entity" shall mean Reliance or any person directly or
indirectly controlling, controlled by or under common control with Reliance.
1.3. "Stockholder Issue" shall mean the election of Investment's
directors, or any charter or by-law amendment acquisition or disposition of
substantial assets (by way of merger, consolidation or otherwise), change in
capitalization, liquidation, or other action (whether or not arising in the
ordinary course of business of Investment) which, in accordance with the
Delaware General Corporation Law or applicable rules of the New York Stock
Exchange, is submitted to a vote of the holders of the Investment Common Stock.
1.4. "Commencement Date" shall mean the closing date for the initial
public offering of the Investment Common Stock.
1.5. "Termination Date" shall mean the tenth anniversary of the
Commencement Date.
1.6. The concept of "beneficial ownership" and the terms "person" and
"group" shall have the meanings defined in Regulation 13D/G adopted by the
Securities and Exchange Commission under the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
Section 2. Representations and Warranties of Investment. Investment
represents and warrants that:
(a) Investment is a corporation duly organized, validly existing and in
good standing under the laws of the state of Delaware, with corporate power to
own its properties and to conduct its business as now conducted. (b) Investment
has full right, power and authority to enter into this Agreement and perform its
obligations hereunder. This Agreement has been duly authorized, executed and
delivered by Investment and constitutes a valid and binding agreement of
Investment enforceable in accordance with its terms.
(c) Neither the execution and delivery of this Agreement nor the
performance by Investment of its obligations hereunder will conflict with or
result in a breach of or constitute a default under any law, rule, regulation,
judgment, order or decree of any court, arbitrator or governmental agency or
instrumentality or of Investment's corporate charter or by-laws or of any
agreement or instrument to which it is a party or subject or by which its
property is bound or affected.
Section 3. Representations and Warranties of Reliance. Reliance represents
and warrants to Investment as follows:
(a) Reliance is a corporation duly organized validly existing and in good
standing under the laws of the State of Delaware.
(b) Reliance has full right, power and authority to enter into this
Agreement and perform its obligations hereunder. This Agreement has been duly
authorized, executed and delivered by Reliance and constitutes a valid and
binding agreement of Reliance enforceable in accordance with its terms hereof.
(c) Neither the execution and delivery of this Agreement nor the
performance by Reliance of its obligations hereunder will conflict with or
conflict with or result in a breach of or constitute a default under any law,
rule, regulation, judgment, order or decree of any court, arbitrator or
governmental agency or instrumentality or of any agreement or instrument to
which it is a party or subject or by which its property is bound or affected, or
of the corporate charter, by-laws or other governing document of Reliance.
Section 4. Covenants of Reliance with Respect to Investment Voting
Securities and Other Matters. After the Commencement Date and prior to the
Termination Date and subject to the further provisions hereof:
4.1. Covenant With Respect to Acquisition of Investment Securities.
Subject to the further provisions of this Section 4.1, no Reliance Entity shall,
directly or indirectly, acquire, offer to acquire, agree to acquire, become the
beneficial owner of or obtain any rights in respect of any securities issued by
Investment or take any action in furtherance thereof except for (i) shares of
Investment Common Stock and Investment $4.125 Preferred Stock beneficially owned
on the Commencement Date, or (ii) securities distributed by Investment by means
of stock dividends or other distributions made available to holders of
Investment's securities. Notwithstanding the foregoing sentence, any Reliance
Entity may acquire additional shares of Common Stock of Investment if, after
effect to such acquisition, offer or agreement or other action, the aggregate
voting power in the election of directors of all Investment Voting Securities
then beneficially owned by all Reliance Entities would not be greater than 20%
(such percentage herein called the "Maximum Percentage") of such total combined
voting power of all Investment Voting Securities then outstanding. For purposes
of calculating compliance with the Maximum Percentage, all Investment Voting
Securities which are subject of an offer, agreement, arrangement or
understanding pursuant to which any Reliance Entity may obtain beneficial
ownership of such securities shall be deemed to be beneficially owned by such
Reliance Entity.
4.2. Covenant With Respect to Voting of Investment Voting Securities. Each
Reliance Entity shall take such action as may be required so that all Investment
Voting Securities beneficially owned by it are voted in the identical
percentages as are all Investment Voting Securities which are beneficially owned
by Reliance Entity and which are voted with respect to any particular
Stockholder Issue. Each Reliance Entity which beneficially owns Investment
Voting Securities, shall be present or cause the holder of record to be present,
in person or by proxy, at all meetings of stockholders of Investment so that all
Investment Voting Securities beneficially owned by such Reliance Entity may be
counted for the purpose of determining the presence of a quorum at such
meetings.
4.3. Stock Pooling. No Reliance Entity shall join a partnership, limited
partnership, syndicate or other group, or otherwise act in concert with any
other person, for the purpose of acquiring Investment Voting Securities, or
otherwise become a member of a "group" within the meaning of Section 13 (d) (3)
of the Exchange Act having such purpose (in each case other than solely with
Reliance Entities).
Section 5. Terms of Agreement; Certain Provisions Regarding Termination.
5.1. Term of Agreement. Except as otherwise provided in Section 5.2 the
respective covenants and agreements of Reliance contained in this Agreement will
continue in full force and effect until the Termination Date and all of the
respective representations and warranties of the parties set forth herein shall
be continuing representations and warranties.
5.2 Certain Provisions Regarding Temporary Termination. If the Reliance
Entities shall, at any time, beneficially own in the aggregate shares
representing less than 5% of the voting power of all Investment Voting
Securities, the agreements and obligations of Reliance contained in Section 4.2
hereof shall cease until such time as any Reliance Entity shall purchase or
otherwise acquire beneficial ownership of Investment Voting Securities so that
the Reliance Entities shall in the aggregate beneficially own Investment Voting
Securities representing 5% or more of the voting power of all Investment Voting
Securities. From and after such times as the Reliance Entities own in the
aggregate Investment Voting Securities representing 5% or more of the voting
power of the Investment Voting Securities, all such restrictions upon and
covenants of Reliance set forth Section in 4.2 of this Agreement shall again be
applicable. All percentages in this Section shall be calculated in accordance
with the provisions of Section 4.1 hereof.
Section 6. Specific Enforcement. Reliance acknowledges and agrees that (i)
the provisions of this Agreement are reasonable and necessary to protect the
proper and legitimate interest of Investment, and (ii) Investment would be
irreparably damaged in the event any of the provisions of this Agreement were
not performed by Reliance in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that Investment shall be entitled
to preliminary and permanent injunctive relief to prevent breaches of the
provisions of this Agreement, without the necessity of proving actual damages,
and to enforce specifically the terms and provisions hereof and thereof in any
court of the United States or any state thereof having jurisdiction, which
rights shall be cumulative and in addition to any other remedy to which
Investment may be entitled hereunder or at law or equity.
7. General Provisions.
7.1. Governing Law. This Agreement shall be governed by and interpreted
under the laws of the State of Delaware without giving effect to any conflicts
of laws provisions.
7.2. Notices. All notices, consents, requests, instructions, approvals and
other communications provided for herein and all legal process in regard hereto
shall be validly given, made or served, if in writing and delivered personally,
by facsimile or sent by registered mail, postage prepaid, if to:
Investment:
CMAC Investment Corporation
0 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
Attention: Chairman
Reliance:
Reliance Group Holdings, Inc.
Park Avenue Plaza
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: General Counsel
or such other address or facsimile number as Investment or Reliance may, from
time to time, designate in a written notice given in a like manner. Notice given
by facsimile shall be deemed delivered on the day the sender receives facsimile
confirmation that such notice was received at the facsimile number of the
addressee. Notice given by registered mail as set out above shall be deemed
delivered when the same is received by the addressee thereof.
7.3. Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, void, or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions shall remain in full force and effect and shall in no way be
affected, impaired or invalidated. It is hereby stipulated and declared to be
the intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such which may
be hereafter declared invalid, void or unenforceable.
7.4. Amendments. This Agreement may be amended only by an agreement in
writing signed by each of the parties hereto.
7.5 Descriptive Readings. Descriptive headings are for convenience only
and shall not control or affect the meaning or construction of any provision of
this Agreement.
7.6 Counterparts. For the convenience of the parties, any number of
counterparts of this Agreement may be executed by any party hereto and each such
executed counterpart shall be, and shall be deemed to be, an original
instrument.
7.7 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the successors and
assigns of the parties hereto.
IN WITNESS WHEREOF, the parties hereto intending to be legally bound have caused
this Standstill and Voting Agreement to be duly executed as of the date first
above written.
CMAC INVESTMENT CORPORATION
By: _____________________________________
Title
RELIANCE GROUP HOLIDNGS, INC.
By: _____________________________________
Title
JOINDER
Commonwealth Land Title Insurance Company, a "Reliance Entity" as defined
in the foregoing agreement, hereby acknowledges, and agrees so long as it is a
Reliance Entity to be bound as if it were a party to, the foregoing Standstill
and Voting Agreement.
COMMONWEALTH LAND TITLE INSURANCE COMPANY
By: _____________________________________
Title
