Exhibit 2.2
VOTING AND SUPPORT AGREEMENT
Agreement dated as of August 7, 1997 between the shareholder
identified on Exhibit A hereto (the "Shareholder") and USF&G Corporation, a
Maryland corporation ("Parent"). Capitalized terms used but not defined
herein shall have the meanings ascribed to such terms in the Merger
Agreement (as defined below).
In consideration of the execution by Parent of the Agreement and
Plan of Merger dated as of August 7, 1997 (the "Merger Agreement") among
Parent, United States Fidelity and Guaranty Company, a Maryland
corporation, and Titan Holdings, Inc., a Texas corporation ("Company"), and
other good and valuable consideration, receipt of which is hereby
acknowledged, the Shareholder and Parent hereby agree as follows:
1. Representations, Warranties and Agreements of Shareholder.
The Shareholder hereby represents and warrants to, and agrees with, Parent
as follows:
(a) Title. As of the date hereof, the Shareholder is the
beneficial and registered owner of 2,579,295 shares (the "Shares") of
common stock, $.01 par value per share ("Common Stock"), of Company. As of
the date hereof, except as set forth on Exhibit A hereto, the Shareholder
does not (i) beneficially own any shares of any class or series of capital
stock of Company (other than the Shares) or any securities convertible into
or exercisable for shares of any class or series of Company's capital stock
or (ii) have any options or other rights to acquire any shares of any class
or series of capital stock of Company or any securities convertible into or
exercisable for shares of any class of Company's capital stock. Except as
set forth in Exhibit B hereto, the Shareholder owns the Shares free and
clear of any lien, mortgage, pledge, charge, security interest or any other
encumbrance of any kind. The Shareholder covenants and agrees to comply
with the pledge agreements and other loan documents relating to the pledges
of certain of the Shares identified on Exhibit B and to otherwise take any
action necessary to insure that the Shareholder can carry out the terms of
this Agreement. Each pledgee of the Shares has consented to this Agreement
and to the Shareholder's fulfillment of the terms thereof.
(b) Right to Vote and to Transfer Shares. The Shareholder
has full legal power, authority and right to vote all of the Shares in
favor of approval and adoption of the Merger Agreement without the consent
or approval of, or any other action on the part of, any other person or
entity. Without limiting the generality of the foregoing, except for this
Agreement, Shareholder has not entered into any voting agreement or any
other agreement with any person or entity with respect to any of the
Shares, granted any person or entity any proxy (revocable or irrevocable)
or power of attorney with respect to any of the Shares, deposited any of
the Shares in a voting trust or entered into any arrangement or agreement
with any person or entity limiting or affecting the Shareholder's ability
to enter into this Agreement or legal power, authority or right to vote the
Shares in favor of the approval and adoption of the Merger Agreement or any
of the transactions contemplated by the Merger Agreement, and Shareholder
will not take any such action after the date of this Agreement
1
and prior to the Company shareholders meeting to vote on approval and
adoption of the Merger Agreement, including any adjournment or postponement
thereof (the "Company Shareholders Meeting"). This Agreement has been duly
executed and delivered by the Shareholder and constitutes a valid and
binding agreement of the Shareholder.
2. Representations and Warranties of Parent. Parent hereby
represents and warrants to the Shareholder that this Agreement (i) has been
duly authorized by all necessary corporate action, (iii) has been duly
executed and delivered by Parent and (iii) is a valid and binding agreement
of Parent.
3. Restriction on Transfer. The Shareholder agrees that (other
than pursuant to the Merger Agreement) it will not, and will not agree to,
sell, assign, dispose of, encumber, mortgage, hypothecate or otherwise
transfer or encumber (collectively, "Transfer") any of the Shares to any
person or entity; provided, however, that the Shareholder may enter into
pledge agreements pledging any of the Shares as collateral security under
loan agreements, provided that (i) the lender under each such loan
agreement consents to this Agreement and fulfillment of the terms thereof
and (ii) the Shareholder covenants and agrees to comply with each pledge
agreement and other loan documents relating to pledges of Shares thereunder
and to otherwise take all action necessary to insure that the Shareholder
can carry out the terms of this Agreement.
4. Agreement to Vote of Shareholder. The Shareholder, in his
individual capacity as a shareholder of the Company only, hereby
irrevocably and unconditionally agrees to vote or to cause to be voted all
of the Shares at the Company Shareholders' Meeting and at any other annual
or special meeting of shareholders of Company where such matters arise (a)
in favor of the approval and adoption of the Merger Agreement and (b)
against (i) approval of any proposal made in opposition to or in
competition with the Merger or any of the other transactions contemplated
by the Merger Agreement, (ii) any merger, consolidation, sale of assets,
business combination, share exchange, reorganization or recapitalization of
Company or any of its subsidiaries, with or involving any party other than
Parent or one of its subsidiaries, (iii) any liquidation, dissolution or
winding up of Company, (iv) any extraordinary dividend by Company, (v) any
change in the capital structure of Company (other than pursuant to the
Merger Agreement) and (vi) any other action that may reasonably be expected
to impede, interfere with, delay, postpone or attempt to discourage the
Merger or the other transactions contemplated by the Merger Agreement or
this Agreement or result in a breach of any of the covenants,
representations, warranties or other obligations or agreements of Company
under the Merger Agreement which would materially and adversely affect
Company or its ability to consummate the transactions contemplated by the
Merger Agreement. The Stockholder further agrees not to take or commit or
agree to take any action inconsistent with the foregoing.
5. Action in Shareholder Capacity Only. The Shareholder signs
solely in the Shareholder's capacity as a record and beneficial owner of
the Shares, and nothing herein shall prohibit, prevent or preclude the
Shareholder from fulfilling his fiduciary duties as a
2
director of Company, including without limitation, voting or consenting as
a director in favor of an Acquisition Proposal (as defined in the Merger
Agreement) or negotiating with respect to an Acquisition Proposal in his
capacity as an officer or director of the Company.
6. No Shopping. The Shareholder, in his individual capacity as a
shareholder of the Company only, agrees not to, directly or indirectly, (i)
solicit, initiate or encourage (or authorize any person to solicit,
initiate or encourage) any inquiry, proposal or offer from any person to
acquire the business, property or capital stock of Company or any direct or
indirect subsidiary thereof, or any acquisition of a substantial equity
interest in, or a substantial amount of the assets of, Company or any
direct or indirect subsidiary thereof, whether by merger, purchase of
assets, tender offer or other transaction or (ii) participate in any
discussion or negotiations regarding, or furnish to any other person any
information with respect to, or otherwise cooperate in any way with, or
participate in, facilitate or encourage any effort or attempt by any other
person to do or seek any of the foregoing; provided that, notwithstanding
the foregoing, the Shareholder shall not be prohibited from taking any such
actions as are required, based upon advice of counsel, to comply with his
fiduciary duties as an officer and director of the Company to the extent
such actions are permitted under the Merger Agreement.
7. Invalid Provisions. If any provision of this Agreement shall be
invalid or unenforceable under applicable law, such provision shall be
ineffective to the extent of such invalidity or unenforceability only,
without it affecting the remaining provisions of this Agreement.
8. Executed in Counterparts. This Agreement may be executed in
counterparts each of which shall be an original with the same effect as if
the signatures hereto and thereto were upon the same instrument.
9. Specific Performance. The parties hereto agree that if for any
reason the Shareholder fails to perform any of his agreements or
obligations under this Agreement irreparable harm or injury to Parent would
be caused for which money damages would not be an adequate remedy.
Accordingly, the Shareholder agrees that, in seeking to enforce this
Agreement against the Shareholder, Parent shall be entitled to specific
performance and injunctive and other equitable relief in addition and
without prejudice to any other rights or remedies, whether at law or in
equity, that Parent may have against the Shareholder for any failure to
perform any of its agreements or obligations under this Agreement.
10. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas without giving
effect to the principles of conflicts of laws thereof
3
11. Amendments; Termination.
(a) This Agreement may not be modified, amended, altered
or supplemented, except upon the execution and delivery of a written
agreement executed by the parties hereto.
(b) The provisions of this Agreement shall terminate upon
the earliest to occur of (i) the consummation of the Merger, (ii) the date
which is 12 months after the date hereof, (iii) the termination of the
Merger Agreement pursuant to Section 7.1(a) or (g) thereof, or (iv) the
termination of the Merger Agreement pursuant to Section 7.1 (b) or (c)
thereof if, but only if, the Merger Agreement is terminated pursuant to
such subsection (b) or (c) solely for reasons that are not directly or
indirectly related to the commencement of, or any person's or entity's
direct or indirect indication of interest in making, an Acquisition
Proposal with respect to the Company.
(c) For purposes of this Agreement, the term "Merger
Agreement" includes the Merger Agreement, as the same may be modified or
amended from time to time.
12. Additional Shares. If, after the date hereof the Shareholder
acquires beneficial ownership of any shares of the capital stock of Company
(any such shares, "Additional Shares"), including, without limitation, upon
exercise of any option, warrant or right to acquire shares of capital stock
or through any stock dividend or stock split, the provisions of this
Agreement (other than those set forth in Section 1 (a)) applicable to the
Shares shall be applicable to such Additional Shares as if such Additional
Shares had been Shares as of the date hereof. The provisions of the
immediately preceding sentence shall be effective with respect to
Additional Shares without action by any person or entity immediately upon
the acquisition by the Shareholder of beneficial ownership of such
Additional Shares.
13. Action by Written Consent. If, in lieu of the Company
Shareholders Meeting, shareholder action in respect of the Merger Agreement
or any of the transactions contemplated by the Merger Agreement is taken by
written consent, the provisions of this Agreement imposing obligations in
respect of or in connection with the Company Shareholders Meeting shall
apply mutatis mutandis to such action by written consent.
14. Shareholder Certificate. Shareholder agrees to execute and
deliver a certificate containing such representations as are reasonably
necessary and customary for tax counsel to Parent on the one hand, and
Company on the other hand, to render an opinion to the effect that the
Merger will constitute a reorganization within the meaning of Section 368
of the Internal Revenue Code of 1986 and that no gain or loss will be
recognized by the shareholders of Company to the extent they receive Parent
Common Stock solely in exchange for shares of Company Common Stock, such
certificate to be in the form attached hereto as Exhibit C.
4
15. Successors and Assigns. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective legal successors and permitted assigns; provided that no party
may assign, delegate or otherwise transfer any of its rights or obligations
under this Agreement without the consent of Parent (in the case of the
Shareholder or any of its permitted assigns) or the Shareholder (in the
case of Parent or any of its permitted assigns).
16. Notices. All notices, requests, claims, demands and other
communications hereunder shall be deemed to have been duly given when
delivered in person, by facsimile, or by registered or certified mail
(postage prepaid, return receipt requested) to such party at its address
set forth on the signature page hereto.
[The remainder of this page intentionally left blank.]
5
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the date first above written.
Xxxx X. Xxxxxx, Xx.
Address:_______________________________
MEW FAMILY LIMITED PARTNERSHIP
By:____________________________________
Xxxx X. Xxxxxx, Xx., General Partner
By:____________________________________
Xxxxxxxx Xxxxxx, General Partner
Address:_______________________________
THE XXXX AND XXXXXXXX XXXXXX
CHARITABLE FOUNDATION
By:________________________________
Xxxx X. Xxxxxx, Xx., Trustee
By:________________________________
Xxxxxxxx X. Xxxxxx, Trustee
By:_________________________________
X.X. Xxxx, III, Trustee
Address:____________________________
USF&G CORPORATION
By:________________________________
Address:___________________________
6
EXHIBIT A TO VOTING
AND SUPPORT AGREEMENT
Xxxx X. Xxxxxx, Xx., including 2,223,096 shares owned in his individual
capacity, 256,199 shares owned through MEW Family Limited Partnership, a
limited partnership in which he is a general partner together with his
wife, Xxxxxxxx Xxxxxx, and 100,000 shares owned through The Xxxx and
Xxxxxxxx Xxxxxx Charitable Foundation, of which he is a trustee together
with Xxxxxxxx Xxxxxx and X.X. Xxxxx, III.
7
EXHIBIT B TO VOTING
AND SUPPORT AGREEMENT
[Encumbrances on Shares]
8
EXHIBIT C TO VOTING
AND SUPPORT AGREEMENT
[Form of Tax Opinion Certificate]
This Certificate is being issued to Piper & Marbury L.L.P. in
connection with its rendering of opinions regarding certain federal income
tax consequences of a merger pursuant to the Plan and Agreement to Merge,
dated as of August 8, 1997 (the "Merger Agreement"), by and among USF&G
Corporation, a Maryland corporation ("USF&G"), United States Fidelity and
Guaranty Company, a Maryland corporation and wholly owned subsidiary of
USF&G ("Subsidiary"), and Titan Holdings, Inc. a Texas corporation
("Company"), providing, among other things, for the merger of Company with
and into Subsidiary (the "Merger"). As used herein, "USF&G Common Stock"
shall mean any one or more shares of the USF&G's $2.50 per share par value
common stock and "Company Common Stock" shall mean any one or more shares
of Company's $0.01 per share par value common stock.
After consulting with their counsel regarding the meaning of and
factual support for the following representations, the undersigned hereby
certify and represent to Piper & Marbury L.L.P. to the best of their
knowledge and belief that the following facts are now true and will
continue to be true through and as of the effective time of the Merger:
There is no plan or intention by the undersigned, acting either
individually or in concert with one another or with other persons, directly
or indirectly, to sell, exchange, transfer, transfer by gift or otherwise
dispose (including by transactions which would have the ultimate effect of
a disposition including, but not limited to, puts, short-sales and equity
swap type of arrangements) (collectively, dispose) of a number of shares of
USF&G Common Stock received in the Merger that would reduce the former
Company Common Stockholders' ownership of USF&G stock to a number of shares
having, in the aggregate, a value, as of the date of the Merger, of less
than 50 percent of the fair market value of Company Common Stock
outstanding as of the same date. For purposes of the preceding sentence,
all shares of Company Common Stock exchanged for cash paid in lieu of
fractional shares of USF&G Common Stock will be considered outstanding
stock of Company as of the date of the Merger. Moreover, shares of Company
Common Stock and shares of USF&G Common Stock held by Company stockholders
and otherwise sold, redeemed, or disposed of prior or subsequent to the
Merger are taken into account for purpose of the first sentence of this
paragraph.<0-255>
Each of the undersigned recognizes that the opinions of Piper &
Marbury L.L.P. will be (i) based on the representations set forth herein
and on the statements contained in the Merger Agreement and documents
related thereto, and (ii) subject to certain limitations and qualifications
including that they may not be relied upon if any such representations are
not accurate in all material respects.
9
Each of the undersigned recognizes that the opinions of Piper &
Marbury L.L.P. will not address any tax consequences of the Merger or any
action taken in connection therewith except as expressly set forth in such
opinions.
In witness whereof, the undersigned have executed this Certificate
this __ day of ________, 1997.
-----------------------------
Xxxx X. Xxxxxx, Xx.
-----------------------------
Xxxx X. Xxxxxx, III
-----------------------------
Xxxxxx X. Xxxxxxx
10
