VOTING AGREEMENT
Exhibit
2.2
THIS
VOTING AGREEMENT (the “Agreement”) is dated as of June __,
2007 by and among The Hanover Insurance Group, Inc., a Delaware corporation
(“Parent”), Hanover Acquisition Corp., a Michigan corporation and a
subsidiary of Parent (“Merger Sub”) and ____________ (the
“Stockholder”).
WITNESSETH:
WHEREAS,
Parent, Professionals Direct, Inc., a Michigan corporation (“Company”)
and Merger Sub are entering into an Agreement and Plan of Merger of even date
herewith (the “Merger Agreement”), pursuant to which Parent will
acquire all of the outstanding shares of common stock (“Common Stock”)
of Company pursuant to a merger of Merger Sub with and into Company (the
“Merger”);
WHEREAS,
the Stockholder owns, as of the date hereof, _______ shares of Common Stock
(the
“Shares”);
WHEREAS,
as a condition to the willingness of Parent and Merger Sub to enter into the
Merger Agreement, and in reliance on the representations, warranties, covenants
and agreements of the Stockholder hereunder, Parent and Merger Sub have
requested that the Stockholder agree, and the Stockholder has agreed, to enter
into this Agreement; and
WHEREAS,
this Agreement is being entered into concurrently with the execution of the
Merger Agreement.
NOW,
THEREFORE, in consideration of the representations, warranties,
covenants and agreements herein contained, the parties agree as
follows. Capitalized terms not otherwise defined herein shall have
the meaning set forth in the Merger Agreement.
1. Agreement
to Vote. The Stockholder hereby agrees that, during the term of
this Agreement, at any meeting of the stockholders of Company, however called,
and in any action by consent of the stockholders of Company, however taken,
the
Stockholder shall cause all of the Shares owned by Stockholder to be present
for
quorum purposes and to vote at such meeting and shall cause all of the Shares
to
be voted in any such consent, and in either case, shall: (a) vote the Shares
in
favor of the adoption of the Merger Agreement and approval of the Merger and
any
of the transactions contemplated by the Merger Agreement (as amended from time
to time, except for any amendment, modification or waiver that results in
termination of this Agreement pursuant to Section 4 hereof); (b) vote the Shares
against any action or agreement that would, or would reasonably be expected
to,
result in a material breach of any covenant, representation or warranty or
any
other obligation or agreement of the Company under the Merger Agreement or
that
would result in a failure to satisfy any condition on the part of the Company
to
be satisfied under the Merger Agreement; and (c) vote the Shares against any
action or agreement, including but not limited to any extraordinary corporate
transaction (other than the Merger), such as a merger, other business
combination, recapitalization, reorganization or liquidation, involving the
Company that would, or would reasonably be expected to, impede, interfere with,
delay, postpone or attempt to discourage the Merger.
2. Irrevocable
Proxy. In furtherance of Section 1, the Stockholder hereby
irrevocably grants to, and appoints, Parent, and any individual designated
in
writing by Parent, and each of them individually, as Stockholder’s proxy and
attorney-in-fact (with full power of substitution), for and in the name, place
and stead of Stockholder, to vote, act by written consent or grant a consent,
proxy or approval with respect to the Shares in accordance with Section 1 hereof
(i) at any meeting of the stockholders of the Company called with respect to
any
of the matters specified in this Agreement and (ii) by execution of a written
consent to action in lieu of any such meeting. The Stockholder
understands and acknowledges that Parent is entering into the Merger Agreement
in reliance on its execution and delivery of this Agreement. The
Stockholder hereby affirms that the proxy set forth in this Section 2 is given
by it in connection with the execution of the Merger Agreement, that such proxy
is irrevocable and that such irrevocable proxy is given to secure the
performance of its duties under this Agreement. Except as otherwise
provided for herein, the Stockholder hereby (i) affirms that the irrevocable
proxy is coupled with an interest and may under no circumstances be revoked,
(ii) ratifies and confirms all that the proxies appointed hereunder may lawfully
do or cause to be done by virtue hereof and (iii) affirms that this irrevocable
proxy is executed and intended to be irrevocable in accordance with the
provisions of Section 422 of the Michigan Business Corporation
Act. Notwithstanding any other provision of this Agreement, the
irrevocable proxy granted hereunder shall automatically terminate on the
termination of this Agreement pursuant to Section 4.
3. Representations
and Warranties of Stockholder. The Stockholder represents and
warrants to Parent and Merger Sub with respect to itself and the Shares that
are
owned by it as follows:
3.1 Ownership
of Shares. On the date hereof, Stockholder is the sole record and
beneficial owner of the Shares. For purposes of this Agreement,
beneficial ownership of securities shall be determined in accordance, with
Rule
13d-3 under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”). The Stockholder currently has with respect to the Shares,
and at Closing will have with respect to such Shares, good, valid and marketable
title, free and clear of all liens, encumbrances, restrictions, options,
warrants, rights to purchase, voting agreements or voting trusts, and claims
of
every kind (other than the encumbrances created by this Agreement and other
than
restrictions on transfer under applicable federal and state securities
laws). On the date hereof, the Shares constitute all of the shares of
Common Stock of the Company owned of record or beneficially owned by the
Stockholder.
3.2 Power;
Binding Agreement. Stockholder has the full legal right, power
and authority to enter into and perform all of Stockholder’s obligations under
this Agreement. The execution, delivery and performance of this
Agreement by Stockholder will not violate any other agreement to which
Stockholder is a party including, without limitation, any voting agreement,
stockholder agreement or voting trust. This Agreement has been duly
authorized, executed and delivered by Stockholder and constitutes a legal,
valid
and binding agreement of Stockholder, enforceable in accordance with its
terms. The execution, delivery and performance of this Agreement does
not, and the consummation of the transactions contemplated hereby and compliance
with the
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provisions
hereof will not, contravene, conflict with, or result in any violation of,
breach of or default by (with or without notice or lapse of time, or both)
the
Stockholder under, or give rise to a right of termination, cancellation or
acceleration of any obligation under, or result in the creation of any lien,
security interest, charge or encumbrance upon any of the Shares under, any
provision of: (i) any loan or credit agreement, note, bond, mortgage,
indenture, lease or other agreement, instrument, permit, concession, franchise
or license applicable to the Stockholder or (ii) any judgment, order, decree,
statute, law, ordinance, injunction, rule or regulation applicable to the
Stockholder or any of the Shares, other than such conflicts, violations,
defaults, rights, liens, security interests, charges or encumbrances that,
individually or in the aggregate, would not materially impair the ability of
the
Stockholder to perform its obligations hereunder.
3.3 Finder’s
Fees. No person or entity is, or will be, entitled to any
commission or finder’s fees from Stockholder in connection with this Agreement
or the transactions contemplated herein.
3.4 Sophistication. The
Stockholder acknowledges being a sophisticated investor who, together with
their
financial advisors and independent legal counsel, has undertaken such
investigation as they have deemed necessary, including inquiries of the Company
and review of the Merger Agreement and this Agreement, to enable the Stockholder
to make an informed and intelligent decision with respect to the Merger
Agreement and this Agreement, and the transactions contemplated
hereby.
4. Termination. The
term of this Agreement commences on the execution and delivery of this Agreement
by all of the parties hereto and continues until it is terminated in accordance
with its terms. The Agreement may be terminated as to the Stockholder
at any time by mutual written consent of the Stockholder and
Parent. This Agreement, and all the obligations of the Stockholder
hereunder shall terminate, without any action by the parties hereto, upon the
earliest to occur of (a) in the event of an amendment or modification to or
waiver under the Merger Agreement that is or would be adverse to the
Stockholder, upon such amendment, modification, waiver or reduction, (b) in
the
event the Merger Agreement is terminated by any party in accordance with its
terms, upon such termination, or (c) in the event the Merger is consummated,
upon the Effective Time (as defined in the Merger Agreement).
5. Expenses. Each
party hereto will pay all of its expenses in connection with the transactions
contemplated by this Agreement including, without limitation, the fees and
expenses of its counsel and other advisers.
6. No
Disposition or Encumbrance of Shares; No Proxies. The Stockholder
represents, covenants and agrees that, except for the proxy granted in Section
2
and as contemplated by this Agreement: (a) Stockholder will not,
directly or indirectly, during the term of this Agreement, offer for sale or
agree to sell, transfer, tender, assign, pledge, hypothecate or otherwise
dispose of or enter into any contract, option or other arrangement or
understanding with respect to, or consent to, the offer for sale, sale,
transfer, tender, pledge, hypothecation, encumbrance, assignment or other
disposition of, or create any security interest, lien, claim, pledge, option,
right of first refusal, agreement, limitation on voting rights, charge or other
encumbrance of any nature whatsoever with respect to any or all of the Shares
or
any interest
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thereon
now legally and/or beneficially owned by the Stockholder; (b) Stockholder shall
not, during the term of this Agreement, grant any proxy, irrevocable proxy
or
power of attorney or deposit any Shares into a voting trust or enter into a
voting agreement with respect to the voting of the Shares (each, a “Voting
Proxy”) with any person except to vote in favor of any of the transactions
contemplated by this Agreement or the Merger Agreement; (c) Stockholder has
granted no Voting Proxy which is currently (or which during the term of this
Agreement will become) effective with respect to the Shares, and if any Voting
Proxy has been granted to any person, such Voting Proxy is hereby revoked;
(d)
no Voting Proxy shall be given or written consent executed by the Stockholder
after the date hereof with respect to the Shares (and if given or executed,
shall not be effective) so long as this Agreement remains in effect; and (e)
during the term of this Agreement, Stockholder shall not, and shall not offer
to
agree to, acquire any additional shares of Common Stock without the prior
written consent of Parent or Merger Sub.
7. Shares. The
only Shares covered by this Agreement shall be the Shares owned by the
Stockholder on the date hereof, unless the Parent elects in writing to have
any
other Shares hereafter acquired by the Stockholder covered by this
Agreement.
8. Survival
of Representations and Warranties. The representations and
warranties of the Stockholder set forth in Section 3 hereof shall not survive
the termination of this Agreement.
9. Notices.
All notices or other communications required or permitted
hereunder shall be in writing (except as otherwise provided herein), given
in
the manner provided in the Merger Agreement, and shall be deemed duly given
when
received, addressed as follows:
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If
to Parent or Merger Sub:
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The
Hanover Insurance Group, Inc.
000
Xxxxxxx Xx.
Xxxxxxxxx,
Xxxxxxxxxxxxx 00000
Attention: Xxxxxx
X. Xxxxxxxx
Facsimile: (000)
000-0000
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With
a copy to:
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Xxxxxx
Xxxxxxx PLLC
000
Xxxxxxxxxxx Xxxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attention: Xxxxxx
X. Xxxxxx, Esq.
Facsimile: (000)
000-0000
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If
to the Stockholder:
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[STOCKHOLDER]
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Facsimile:
(___)
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With
a copy to:
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Xxxxxx
& Xxxxxxxxx LLP
000
Xxxxxx Xxxxxx, XX, Xxxxx 000
Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention:
R. Xxxx Xxxxxx, Esq.
Facsimile:
(000) 000-0000
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10. Entire
Agreement; Amendment. This Agreement, together with the documents
expressly referred to herein, constitute the entire agreement among the parties
hereto with respect to the subject matter contained herein and supersede all
prior agreements and understandings among the parties with respect to such
subject matter. This Agreement may not be modified, amended, altered
or supplemented except by an agreement in writing executed by Parent and the
Stockholder.
11. Assigns. This
Agreement shall be binding on and inure solely to the benefit of the parties
hereto and their respective successors, assigns and personal representatives,
but neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by any of the parties hereto without the prior
written consent of the other parties.
12. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Michigan, without regard to the
principles of conflicts of laws thereof.
13. Injunctive
Relief. The parties agree that in the event of a breach of any
provision of this Agreement, the aggrieved party may be without an adequate
remedy at law. The parties therefore agree that in the event of a
breach of any provision of this Agreement, the aggrieved party shall be entitled
to obtain in any court of competent jurisdiction a decree of specific
performance or to enjoin the continuing breach of such provision in each case
without the requirement that a bond be posted and without having to prove actual
damages, as well as to obtain damages for breach of this
Agreement. By seeking or obtaining such relief, the aggrieved party
will not be precluded from seeking or obtaining any other relief to which it
may
be entitled.
14. Counterparts;
Facsimile Signatures. This Agreement may be executed,
including execution by facsimile, in any number of counterparts, each of which
shall be deemed to be an original and all of which together shall constitute
one
and the same document.
15. Severability.
Any term or provision of this Agreement that is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions
of
this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, such provision shall be
interpreted to be only so broad as is enforceable.
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16. Further
Assurances. Each party hereto shall execute and deliver such
additional documents and take such additional actions as may be necessary or
desirable to consummate the transactions contemplated by this
Agreement.
17. Third
Party Beneficiaries. Nothing in this Agreement, expressed or
implied, shall be construed to give any person or entity other than the parties
hereto any legal or equitable right, remedy or claim under or by reason of
this
Agreement or any provision contained herein.
18. Stockholder
Capacity. Notwithstanding anything herein to the contrary, the
Stockholder makes no agreement or understanding herein in his or her capacity
as
a director or officer of the Company or any subsidiary of the Company, and
the
agreements set forth herein shall in no way restrict the Stockholder in the
exercise of his or her fiduciary duties as a director or officer of the Company
or any subsidiary of the Company or limit or affect any actions taken by the
Stockholder in his capacity as an officer or director of the Company or any
subsidiary of the Company. The Stockholder has executed this
Agreement solely in his or her capacity as the record and/or beneficial holder
of the Shares.
[Signatures
on next page.]
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IN
WITNESS WHEREOF, Parent, Merger Sub and Stockholder have executed this
Agreement or caused this Agreement to be executed by their duly authorized
officers, as the case may be, each as of the date first above
written.
THE
HANOVER INSURANCE GROUP, INC.
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By:
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Name:
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Title:
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HANOVER
ACQUISITION CORP.
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By:
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Name:
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Title:
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STOCKHOLDER
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By:
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[Name]
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