VOTING AND SUPPORT AGREEMENT
Exhibit
2
EXECUTION
VERSION
This
VOTING AND SUPPORT AGREEMENT (this "Agreement") is
entered into as of January 10, 2008, by and among Employers Holdings, Inc.,
a
Nevada corporation ("Parent"), and Xxxx
X.
Xxxx ("Shareholder"). Parent
and Shareholder are sometimes referred to herein as a "Party" and
collectively as the "Parties".
W
I T N E S S E T
H:
WHEREAS,
as of the date hereof, Shareholder "beneficially owns" (as such
term is defined in Rule 13d-3 promulgated under the Exchange Act) and is
entitled to dispose of (or to direct the disposition of) and to vote (or to
direct the voting of) the number of shares of common stock, par value $0.01
per
share (the "Common
Stock"), of AmCOMP Incorporated, a Delaware corporation (the "Company"),
set forth
opposite Shareholder's name on Schedule I hereto
(such shares of Common Stock, together with any other shares of Common Stock
the
voting power over which is acquired by Shareholder during the period from and
including the date hereof through and including the date on which this Agreement
is terminated in accordance with its terms (such period, the "Voting Period"), are
collectively referred to herein as the "Subject
Shares");
WHEREAS,
Parent, Sapphire Acquisition Corp., a wholly-owned subsidiary of Parent ("Acquisition Sub"),
and the Company propose to 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"),
pursuant to which Acquisition Sub will merge with and into the Company, with
the
Company surviving as a wholly-owned subsidiary of Parent (the "Merger");
and
WHEREAS,
as a condition to the willingness of Parent and Acquisition Sub to enter into
the Merger Agreement, and as an inducement and in consideration therefor,
Shareholder is executing this Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the mutual premises,
representations, warranties, covenants and agreements contained herein, the
Parties hereto, intending to be legally bound, hereby agree as
follows:
ARTICLE
I
DEFINITIONS
Section
1.1 Capitalized
Terms. For purposes of this Agreement, capitalized terms used
and not defined herein shall have the respective meanings ascribed to them
in
the Merger Agreement. For the avoidance of doubt, the term
"Affiliate," as used in this Agreement, shall have the meaning ascribed to
such
term in the Merger Agreement.
ARTICLE
II
VOTING
AGREEMENT AND
IRREVOCABLE PROXY
Section
2.1 Agreement to Vote
the
Subject Shares. Subject to Section 2.3, Section 2.4 and
Section 2.5, Shareholder hereby unconditionally and irrevocably agrees that,
during the Voting Period, at any duly called meeting of the stockholders of
the
Company (or any adjournment or postponement thereof), and in any action by
written consent of the stockholders of the Company, Shareholder shall, if a
meeting is held, appear at the meeting, in person or by proxy, or otherwise
cause its Subject Shares to be counted as present thereat for purposes of
establishing a quorum, and it shall vote or consent (or cause to be voted or
consented), in person or by proxy, all of its Subject Shares (a) in favor of
the
adoption of the Merger Agreement and approval of the Merger and the other
transactions contemplated by the Merger Agreement (and any actions required
in
furtherance thereof), (b) against any action, proposal, transaction or agreement
that would result in a breach in any respect of any covenant, representation
or
warranty or any other obligation or agreement of the Company contained in the
Merger Agreement or of Shareholder contained in this Agreement, and (c) against
the following actions or proposals (other than the transactions contemplated
by
the Merger Agreement): (i) any Company Takeover Proposal or any
proposal in opposition to approval of the Merger Agreement or in competition
with or materially inconsistent with the Merger Agreement; and (ii) (A) any
change in the persons who constitute the Board); (B) any material change in
the
present capitalization of the Company or any amendment of the Certificate of
Incorporation or Bylaws; (C) any change in the Company's corporate structure
or
business; or (D) any other action or proposal involving the Company or any
Company Subsidiary that is intended, or could reasonably be expected, to
prevent, impede, interfere with, delay, postpone or adversely affect the
transactions contemplated by the Merger Agreement or could reasonably be
expected to result in any of the conditions to the Company's obligations under
the Merger Agreement not being fulfilled. Subject to Section 2.5,
Shareholder agrees not to, and shall cause its Representatives not to, enter
into any agreement, commitment or arrangement with any Person the effect of
which would be inconsistent with or violative of the provisions and agreements
contained in this Article II.
Section
2.2 Effect of Change
of
Recommendation, Withdrawal
of
Recommendation
or Company
Breach. For the avoidance of doubt, Shareholder agrees that,
during the Voting Period, the obligations of Shareholder specified in Section
2.1 shall not be affected by any (a) Change of Recommendation, (b) Withdrawal
of
Recommendation or (c) breach by the Company of any of its representations,
warranties, agreements or covenants set forth in the Merger
Agreement.
Section 2.3 Grant of Irrevocable
Proxy. Shareholder hereby appoints Parent and any designee of
Parent, and each of them individually, as Shareholder's agent, proxy and
attorney-in-fact, with full power of substitution and resubstitution in the
premises, to vote or act by written consent during the Voting Period with
respect to any and all of the Subject Shares in accordance with Section 2.1,
in
each case subject to the receipt of any Requisite Regulatory Approvals, if
required. Shareholder shall promptly cause a copy of this Agreement
to be deposited with the Company at its principal place of
business. Shareholder shall take such further action or execute such
other instruments as may be necessary to effectuate the intent of
2
this
proxy. Shareholder affirms that the irrevocable proxy set forth in
this Article II is given in connection with, and in consideration of, the
execution of the Merger Agreement, and that such irrevocable proxy is given
to
Parent by Shareholder to secure the performance of the duties of Shareholder
under this Agreement.
Section 2.4 Nature of Irrevocable
Proxy. The proxy and power of attorney granted pursuant to
Section 2.3 to the Parent by Shareholder shall (a) be irrevocable during the
term of this Agreement, (b) be deemed to be coupled with an interest sufficient
in law to support an irrevocable proxy, (c) revoke any and all prior proxies
and
powers of attorney granted by Shareholder with respect to the Subject
Shares and (d) not give any subsequent proxy or power of attorney with respect
to the Subject Shares, other than a proxy solicited by the Proxy Statement
to
the extent necessary to permit Shareholder to comply with Section
2.1. The power of attorney granted by Shareholder herein is a durable
power of attorney and shall survive the dissolution, bankruptcy, death or
incapacity of Shareholder and shall be binding upon the heirs, personal
representatives, successors or assigns of Shareholder. The proxy and
power of attorney granted hereunder shall terminate upon the termination of
this
Agreement. It is agreed that Parent and any designee of Parent shall
use the irrevocable proxy granted hereby only in accordance with applicable
Law. For the avoidance of doubt, the vote of Parent or any designee
of Parent shall control in any conflict between the vote by Parent or any
designee of Parent of the Subject Shares and any other vote by Shareholder
of
the Subject Shares.
Section 2.5 No Restrictions
on Obligation
as
Director or
Officer. The Parties acknowledge that Shareholder (or a
Representative of Shareholder) is a director and/or officer of the Company
and,
in such capacity, owes a fiduciary duty to the Company and its
stockholders. Notwithstanding anything to the contrary contained in
this Agreement, nothing in this Agreement shall be construed to impose any
obligation or limitation on votes or actions taken by any director, officer,
general partner, member, employee, agent or other representative
(collectively, "Representatives") of Shareholder in his or her capacity
as a director or officer of the Company, including pursuant to Section 4.4(e)
of
the Merger Agreement.
ARTICLE
III
COVENANTS
Section
3.1 Generally.
(a) Shareholder
agrees that during the Voting Period, except as contemplated by the terms of
this Agreement, it shall not, and shall cause its Representatives not to,
without the Parent's prior written consent, (i) offer for sale, sell (including
short sales), transfer, tender, pledge, encumber, assign or otherwise dispose
of
(including by gift) (collectively, a "Transfer"), or enter
into any contract, option, derivative, hedging or other agreement or arrangement
or understanding (including any profit-sharing arrangement) with respect to,
or
consent to, a Transfer of, any or all of the Subject Shares; (ii) grant any
proxies or powers of attorney with respect to any or all of the Subject
Shares; (iii) permit to exist any lien of any nature whatsoever with respect
to
any or all of the Subject Shares; or (iv) take any action that
3
would
have the effect of preventing, impeding, interfering with or adversely affecting
Shareholder's ability to perform its obligations under this
Agreement.
(b) In
the event of a stock dividend or distribution, or any change in the Common
Stock
by reason of any stock dividend or distribution, split-up, recapitalization,
combination, conversion, exchange of shares or the like, the term "Subject
Shares" shall be deemed to refer to and include the Subject Shares as well
as
all such stock dividends and distributions and any securities into which or
for
which any or all of the Subject Shares may be changed or exchanged or which
are
received in such transaction.
(c) Shareholder
agrees, while this Agreement is in effect, not to take or agree or commit to
take any action that would make any representation and warranty of Shareholder
contained in this Agreement inaccurate in any material respect.
Section 3.2 Standstill
Obligations of the
Shareholder. Shareholder covenants and agrees with Parent
that, during the Voting Period:
(a) Shareholder
shall not, nor shall Shareholder permit any of its Representatives to, nor
shall
Shareholder act in concert with or permit any of its Representatives to act
in
concert with any Person to make, or in any manner participate in, directly
or
indirectly, a "solicitation" of "proxies" or consents (as such terms are used
in
the rules of the SEC) or powers of attorney or similar rights to vote, or seek
to advise or influence any Person with respect to the voting of, any shares
of
Common Stock in connection with any vote or other action on any matter, other
than to recommend that stockholders of the Company vote in favor of adoption
of
the Merger Agreement, the Merger and the other transactions contemplated by
the
Merger Agreement (and any actions required in furtherance thereof and otherwise
as expressly provided by Article II of this Agreement)
(b) Shareholder
shall not, nor shall Shareholder permit any Representative of Shareholder to,
nor shall Shareholder act in concert with or permit any Representative of
Shareholder to act in concert with any Person to, deposit any of the Subject
Shares in a voting trust or subject any of the Subject Shares to any arrangement
or agreement with any Person with respect to the voting of the Subject Shares,
except as provided by Article II of this Agreement.
(c) Shareholder
shall not, nor shall Shareholder permit any Representative of Shareholder to,
nor shall Shareholder act in concert with or permit any Representative of
Shareholder to act in concert with any Person to, directly or indirectly,
initiate, solicit or knowingly encourage or facilitate (including, in each
case,
by way of furnishing information) any inquiries or the making of any proposal
or
offer with respect to, or any indication of interest in, any Company
Takeover Proposal, engage in any negotiations or discussions concerning
any Company Takeover Proposal, or provide any non-public information or
data to any Person (other than Parent, Acquisition Sub or any of Affiliates
of
Parent) that has made, or to Shareholder's knowledge, is considering making
a
Company Takeover Proposal or any Representatives thereof, or make any public
statements with respect to any Company Takeover Proposal or any matter that
relates to, supports, or could reasonably be expected to lead to any Company
Takeover Proposal.
4
(d) Shareholder
shall, and shall (subject to Section 2.5) cause any Representative of
Shareholder to, cease immediately and cause to be terminated any and all
existing discussions, conversations, negotiations and other communications
with
any Person conducted heretofore with respect to any Company
Takeover Proposal or any matter that relates to, supports, or could
reasonably be expected to lead to any Company
Takeover Proposal. Shareholder shall, and shall not (subject to
Section 2.5) permit any of its Representatives to, directly or indirectly,
engage in any activity which would be prohibited pursuant to Section 4.4(b)
of
the Merger Agreement if engaged in by the Company.
Section 3.3 Appraisal
Rights. Shareholder agrees not to seek appraisal or assert any
rights of dissent from the Merger that it may have under Section 262 of the
DGCL
(or otherwise) and, to the extent permitted by applicable Law, Shareholder
hereby waives any rights of appraisal or rights to dissent from the Merger
that
it may have under Section 262 of the DGCL.
ARTICLE
IV
REPRESENTATIONS
AND
WARRANTIES OF SHAREHOLDER
Shareholder
hereby represents and warrants to Parent as follows:
Section 4.1 Binding
Agreement. Shareholder (a) if a natural person, is of legal
age to execute this Agreement and is legally competent to do so and (b) if
not a
natural person, (i) is a corporation, limited liability company or partnership
duly organized and validly existing under the laws of the jurisdiction of its
organization and (ii) has all necessary power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby by Shareholder has been
duly authorized by all necessary corporate, limited liability or partnership
action on the part of Shareholder. This Agreement, assuming due
authorization, execution and delivery hereof by Parent, constitutes a legal,
valid and binding obligation of Shareholder, enforceable against Shareholder
in
accordance with its terms (except as such enforceability may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
other similar laws of general applicability relating to or affecting creditor's
rights, and to general equitable principles).
Section 4.2 Ownership of
Shares. Schedule I sets forth opposite Shareholder's name the
number of shares of Common Stock over which Shareholder has record and
beneficial ownership as of the date hereof. As of the date hereof,
Shareholder is the lawful owner of the shares of Common Stock denoted as being
owned by Shareholder on Schedule I and has the sole power to vote or cause
to be
voted such shares. Shareholder does not own or hold any right to
acquire any additional shares of any class of capital stock of the Company
or
other securities of the Company or any interest therein or any voting rights
with respect to any securities of the Company other than the Subject
Shares. Shareholder has good and valid title to the Common Stock
denoted as being owned by Shareholder on Schedule I, free and clear of any
and
all pledges, mortgages, Encumbrances, charges, proxies, voting agreements,
liens, adverse claims, options, security interests and demands of any nature
or
kind whatsoever, other than those created by this Agreement. There
are no claims for finder's fees or brokerage commission or
5
other
like payments in connection with this Agreement or the transactions contemplated
hereby payable by Shareholder pursuant to arrangements made by
Shareholder.
Section 4.3 No Conflicts.
(a) No
filing with any Governmental Authority, and no authorization, consent or
approval of any other Person is necessary for the execution of this Agreement
by
Shareholder and the consummation by Shareholder of the transactions contemplated
hereby.
(b) None
of the execution and delivery of this Agreement by Shareholder, the consummation
by Shareholder of the transactions contemplated hereby or compliance by
Shareholder with any of the provisions hereof shall (i) conflict with or result
in any breach of the organizational documents of Shareholder, as applicable,
(ii) result in, or give rise to, a violation or breach of or a default under
any
of the terms of any material contract, understanding, agreement or other
instrument or obligation to which Shareholder is a party or by which Shareholder
or any of the Subject Shares or assets may be bound, or (iii) violate any
applicable Order, writ, injunction, decree, judgment, statute, rule or
regulation, except for any of the foregoing as could not reasonably be expected
to impair Shareholder's ability to perform its obligations under this
Agreement.
Section 4.4 Company Takeover
Proposal. Shareholder
represents that it is not, and (subject to Section 2.5) no Representative of
Shareholder is, engaged in any discussions or negotiations with any
Person (other than Parent, Acquisition Sub or any of Affiliates of Parent)
with respect to any Company Takeover Proposal or any matter that relates to,
supports, or could reasonably be expected to lead to any Company Takeover
Proposal.
Section 4.5 Reliance by
Parent. Shareholder understands and acknowledges that Parent
is entering into the Merger Agreement in reliance upon the execution and
delivery of this Agreement by Shareholder.
ARTICLE
V
REPRESENTATIONS
AND
WARRANTIES OF PARENT
Parent
hereby represents and warrants to the Shareholders as follows:
Section 5.1 Binding
Agreement. Parent is a Nevada corporation duly organized and validly
existing under the laws of the jurisdiction of its
organization. Parent has all necessary corporate power and authority
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby by Parent have
been duly authorized by all necessary corporate action on the part of
Parent. This Agreement, assuming due authorization, execution and
delivery hereof by Shareholder, constitutes a legal, valid and binding
obligation of Parent enforceable against Parent in accordance with its terms
(except as such enforceability may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other similar laws of
general applicability relating to or affecting creditor's rights, and to general
equitable principles).
6
Section
5.2 No Conflicts.
(a) No
filing with any Governmental Authority, and no authorization, consent or
approval of any other Person is necessary for the execution of this Agreement
by
Parent and the consummation by Parent of the transactions contemplated
hereby.
(b) None
of the execution and delivery of this Agreement by Parent, the consummation
by
Parent of the transactions contemplated hereby or compliance by Parent with
any
of the provisions hereof shall (i) conflict with or result in any breach of
the
organizational documents of Parent, (ii) result in, or give rise to, a violation
or breach of or a default under any of the terms of any material contract,
understanding, agreement or other instrument or obligation to which Parent
is a
party or by which Parent or any of its assets may be bound, or (iii) violate
any
applicable Order, writ, injunction, decree, judgment, statute, rule or
regulation, except for any of the foregoing as could not reasonably be expected
to impair Parent's ability to perform its obligations under this
Agreement.
Section 5.3 Reliance by the
Shareholder. Parent understands and acknowledges that
Shareholder is entering into this Agreement in reliance upon the execution
and
delivery of the Merger Agreement by Parent.
ARTICLE
VI
TERMINATION
Section 6.1 Termination. This
Agreement shall automatically terminate, and none of Parent or Shareholder
shall
have any rights or obligations hereunder and this Agreement shall become null
and void and have no effect upon the earliest to occur of (a) the mutual written
consent of Parent and Shareholder, (b) the Effective Time, (c) the date of
termination of the Merger Agreement in accordance with its terms, (d) the date
of any change or amendment to the Merger Agreement that results in any decrease
in the Merger Consideration, or (e) October 31, 2009. The termination
of this Agreement shall not prevent any Party hereunder from seeking any
remedies (at law or in equity) against another Party hereto or relieve such
Party from liability for such Party's breach of any terms of this
Agreement. Notwithstanding anything to the contrary herein, the
provisions of Article VII (other than Section 7.2) shall survive the termination
of this Agreement.
ARTICLE
VII
MISCELLANEOUS
Section 7.1 Publication. Shareholder
hereby permits the Company and Parent to publish and disclose in any forms,
schedules or other documents to be filed with the SEC (including the Proxy
Statement) Shareholder's identity and ownership of the Subject Shares and the
nature of its commitments, arrangements and understandings pursuant to this
Agreement.
Section
7.2 Further Assurances. From
time to time, at the other Party's request and without further consideration,
each Party shall execute and deliver such additional
7
documents
and take all such further action as may be reasonably
necessary or desirable to consummate the transactions contemplated by this
Agreement.
Section 7.3 Fees and
Expenses. Each
of
the Parties shall be responsible for its own fees and expenses (including,
without limitation, the fees and expenses of investment bankers, accountants
and
counsel) in connection with the entering into of this Agreement and the
consummation of the transactions contemplated hereby and by the Merger
Agreement.
Section
7.4 Amendments, Waivers,
etc. This Agreement may not be amended, changed, supplemented,
waived or otherwise modified, except upon the execution and delivery of a
written agreement executed by each of the Parties hereto. The failure
of any Party hereto to exercise any right, power or remedy provided under
this Agreement or otherwise available in respect hereof at law or in equity,
or
to insist upon compliance by any other Party hereto with its obligations
hereunder, and any custom or practice of the Parties at variance with the terms
hereof shall not constitute a waiver by such Party of its right to exercise
any
such or other right, power or remedy or to demand such compliance.
Section 7.5 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 Parent or Acquisition Sub:
0000
Xxxxxxx Xxxxx
Xxxx,
Xxxxxx 00000
Attn: Xxxxxx
X. Xxxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
with
a copy (which shall not constitute notice) to:
Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx
Xxxxx Xxxxxx
Xxx
Xxxx, XX 00000
Attn: Xxxxxx
X. Xxxxxxxx
Xxxxx
X. Xxxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
(b) If
to Shareholder:
8
Xxxx
X. Xxxx
c/o
AmCOMP Incorporated
000
X.X. Xxxxxxx Xxx
Xxxxx
Xxxx Xxxxx, XX 00000
Phone: (000)
000-0000
Fax: (000)
000-0000
with
a copy (which shall not constitute notice) to:
Xxxxx
& Xxxxxxx LLP
000
Xxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxx,
XX 00000
Attn: Xxxxxx
Xxxxx, Esquire
Phone: (000)
000-0000
Fax: (000)
000-0000
and
with a copy (which shall not constitute notice) to:
Xxxxx
& L xxxxxxx LLP
One
Independent Drive, Suite 1300
Xxxxxxxxxxxx,
XX 00000
Attn: Xxxxxxx
Xxxxx, Esquire
Phone: (000)
000-0000
Fax: (000)
000-0000
Section 7.6 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 7.7 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 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 an acceptable manner to the end that the transactions
contemplated hereby are fulfilled to the fullest extent possible.
Section 7.8 Entire Agreement;
Assignment. This
Agreement (together with the Merger Agreement, to the extent referred to herein,
and Schedule I) constitutes the entire agreement among the Parties with respect
to the subject matter hereof and supersedes all prior agreements and
undertakings, both written and oral, among the Parties, or any of them, with
respect to the subject matter hereof. This Agreement shall not be
assigned by operation of law or otherwise without the prior written consent
of
the other Party, except that Parent may assign all or
any of its rights and obligations hereunder to any direct or indirect
wholly-owned Subsidiary of Parent.
9
Section 7.9 Parties in
Interest. This Agreement shall be binding upon and inure
solely to the benefit of each Party hereto, and nothing in this Agreement,
express or implied, is intended to or shall confer upon any other Person any
rights, benefits or remedies of any nature whatsoever under or by reason of
this
Agreement.
Section 7.10 Interpretation. When
reference is made in this Agreement to a Section, such reference shall be to
a
Section of this Agreement unless otherwise indicated. Whenever the
words "include", "includes" or "including"
are used in this Agreement, they shall be deemed to be followed by the words
"without limitation." The words "hereof," "herein," "hereby"
and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and
not to any particular provision of this Agreement. The word "or" shall not be exclusive. Whenever used in this
Agreement, any noun or pronoun shall be deemed to include the plural as well
as
the singular and to cover all genders. This Agreement shall be
construed without regard to any presumption or rule requiring construction
or
interpretation against the Party drafting or causing any instrument to be
drafted.
Section 7.11 Governing
Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware.
Section 7.12 Specific Performance;
Jurisdiction. The Parties agree that irreparable damage would
occur 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 the Parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of this Agreement in the Court
of
Chancery of the State of Delaware 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 State of Delaware, this being in addition to any
other remedy to which such Party is entitled at law or in equity. In
addition, each of the Parties hereto (a) consents to submit itself to the
personal jurisdiction of the Court of Chancery of the State of Delaware or
any
court of the United States located in the State of Delaware in the event any
dispute arises out of this Agreement or any of the transactions contemplated
by
this Agreement, (b) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court,
(c) 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
Court of Chancery of the State of Delaware 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 State of Delaware and (d) consents
to
service being made through the notice procedures set forth in Section
7.5. Each of the Shareholder and Parent hereby agrees that service of
any process, summons, notice or document by U.S. registered mail to the
respective addresses set forth in Section 7.5 shall be effective service of
process for any proceeding in connection with this Agreement or the transactions
contemplated hereby.
Section 7.13 Counterparts. This
Agreement may be executed in counterparts (including by facsimile), each of
which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
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Section 7.14 No Partnership,
Agency or
Joint Venture. This Agreement is intended to create a
contractual relationship between Shareholder, on the one hand, and Parent,
on
the other hand, and is not intended to create, and does not create, any agency,
partnership, joint venture or any like relationship between or among the parties
hereto. Without limiting the generality of the foregoing
sentence, Shareholder (a) is entering into this Agreement solely on its own
behalf and shall not have any obligation to perform on behalf of any other
holder of Common Stock or any liability (regardless of the legal theory
advanced) for any breach of this Agreement by any other holder of Common Stock
and (b) by entering into this Agreement does not intend to form a "group" for
purposes of Rule 13d-5(b)(1) of the Exchange Act or any other similar provision
of applicable Law. To the knowledge of Shareholder, Shareholder is
not affiliated with any other holder of Common Stock entering into a voting
agreement with Parent in connection with the Merger Agreement and has acted
independently regarding its decision to enter into this Agreement and regarding
its investment in the Company.
[Execution
page
follows.]
11
IN
WITNESS WHEREOF, Parent and Shareholder have caused this Agreement to be duly
executed as of the day and year first above written.
|
By:
|
/s/ Xxxxxxx X. Xxxxx | ||
|
Name: Xxxxxxx
X. Xxxxx
|
|||
|
Title: Chief
Executive Officer
|
|||
|
XXXX
X.
XXXX
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|||
| /s/ Xxxx X. Xxxx | |||
SCHEDULE
I
Ownership
of Common
Stock
|
Shareholder
|
Number
of Shares
|
|
|
Xxxx
X. Xxxx
|
229,471
|
|
