EXHIBIT 10.1
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VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and entered into as of
June 29, 2007, by and among South Central Connecticut Regional Water Authority,
a public corporation constituting a public instrumentality and a political
subdivision of the State of Connecticut ("Parent"); RWA21, Ltd., a Connecticut
corporation and a wholly-owned subsidiary of Parent ("Merger Sub"); each
undersigned stockholder (each, a "Stockholder") of BIW Limited, a Connecticut
corporation (the "Company"); and, solely for the purposes of Section 4.3 hereof,
the Company.
RECITALS:
A. Pursuant to an Agreement and Plan of Merger, dated as of even date
herewith, by and among Parent, Merger Sub and the Company (the "Merger
Agreement"), Parent has agreed to acquire the outstanding capital stock of the
Company pursuant to a statutory merger of Merger Sub with and into the Company
in which each outstanding share of the capital stock of the Company will be
converted into the right to receive the Merger Consideration.
B. As a condition to the willingness of Parent and Merger Sub to enter into
the Merger Agreement and as an inducement and in consideration therefor, each
Stockholder has agreed to enter into this Agreement.
C. Each Stockholder is the record and legal owner of that number of shares
of common stock, no par value ("Common Stock"), of the Company set forth
opposite such Stockholder's name on Exhibit A hereto (the "Shares") (such
Shares, together with any New Shares (as defined in Section 1.2), being referred
to herein as the "Subject Shares").
D. All capitalized terms used but not otherwise defined herein shall have
the respective meanings set forth in the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, and intending to be legally bound hereby, the
parties hereby agree as follows:
1. AGREEMENT TO RETAIN SUBJECT SHARES.
1.1. Prior to the Expiration Date (as defined below), each Stockholder
agrees not to: (a) transfer, assign, sell, gift-over, pledge or
otherwise dispose of, or consent to any of the foregoing, any or all
of the Subject Shares or any right or interest therein ("Transfer")
other than a Transfer to a Permitted Transferee (as defined below);
(b) enter into any contract, option or other agreement, arrangement or
understanding with respect to any Transfer (other than with respect to
a Transfer to a Permitted Transferee); (c) grant any proxy,
power-of-attorney or other authorization or consent with respect to
any of the Subject Shares (other than the proxy contemplated in
Section 3 herein); or (d) deposit any of the Subject Shares into a
voting trust, or enter into a voting agreement or arrangement with
respect to any of the Subject Shares. As used herein, (y) the term
"Expiration Date" shall
mean the earlier to occur of (i) the Effective Time, or (ii)
termination of the Merger Agreement in accordance with the terms
thereof; and (z) the term "Permitted Transferee" shall mean, with
respect to a Stockholder, any "Family Member" (as defined in Rule 701
under the Securities Act of 1933, replacing the phrase "the employee"
with the phrase "the Stockholder" in such definition) that has entered
into a Joinder Agreement in substantially the form attached hereto as
Exhibit B.
1.2. "New Shares" means: (a) any shares of capital stock or voting
securities of the Company that a Stockholder purchases or with respect
to which such Stockholder otherwise acquires beneficial ownership
(whether through the exercise of any options, warrants or other rights
to purchase shares of Common Stock or otherwise) after the date of
this Agreement and prior to the Expiration Date; and (b) any shares of
capital stock or voting securities of the Company that a Stockholder
becomes the beneficial owner of as a result of any change in Common
Stock by reason of a stock dividend, stock split, split-up,
recapitalization, reorganization, business combination, consolidation,
exchange of shares, or any similar transaction or other change in the
capital structure of the Company affecting the Common Stock.
2. AGREEMENT TO VOTE SUBJECT SHARES AND TAKE CERTAIN OTHER ACTION.
2.1. Between the date of this Agreement and the Expiration Date, at every
meeting of the stockholders of the Company, however called, or in
connection with any written consent of the stockholders of the Company
at which any of the following matters is considered or voted upon, and
at every adjournment or postponement thereof, each Stockholder shall
vote or cause to be voted his/her Subject Shares:
(a) in favor of the Merger, the adoption of the Merger Agreement and
the transactions contemplated thereby;
(b) against approval of any proposal made in opposition to or
competition with consummation of the Merger;
(c) against any Acquisition Proposal from any party other than Parent
or an Affiliate of Parent;
(d) against any extraordinary corporate transaction (other than the
Merger), such as a merger, consolidation, business combination,
tender or exchange offer, reorganization, recapitalization, sale,
lease or transfer of a material amount of the assets or
securities of the Company (other than in connection with the
transactions contemplated by the Merger Agreement (including
without limitation the sale or transfer of the Excluded Assets));
(e) against any proposal or action which could reasonably be expected
to, impede, frustrate, prevent, prohibit, delay or discourage any
of the transactions contemplated by the Merger Agreement;
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(f) against any amendment of the Certificate of Incorporation or
By-laws of the Company, which has the effect of or which could
reasonably be expected to impede, frustrate, prevent, prohibit,
delay or discourage any of the transactions contemplated by the
Merger Agreement; and
(g) against any dissolution, liquidation or winding up of the
Company.
2.2. Between the date of this Agreement and the Expiration Date, each
Stockholder, as the holder of the Subject Shares set forth opposite
his/her name on Exhibit A hereto, shall be present, in person or by
proxy, at all meetings of stockholders of the Company at which the
matters referred to in Section 2.1 are to be voted upon so that all
Subject Shares are counted for the purposes of determining the
presence of a quorum at such meetings.
2.3. Between the date of this Agreement and the Expiration Date, each
Stockholder agrees not to, and will not permit any entity under such
Stockholder's control (other than the Company) to, (a) solicit proxies
or become a "participant" in a "solicitation" (as such terms are
defined in Rule 14A under the Exchange Act) with respect to an
Opposing Proposal (as defined below) or (b) initiate a stockholders'
vote with respect to an Opposing Proposal or (c) become a member of a
"group" (as such term is used in Section 13(d) of the Exchange Act)
with respect to any voting securities of the Company with respect to
an Opposing Proposal. For purposes of this Agreement, the term
"Opposing Proposal" means any of the actions or proposals described in
clauses (b) through (g) of Section 2.1. For purposes of this
Agreement, the term "Representative" means each agent and
representative (including without limitation any investment banker,
financial advisor, attorney, accountant or other representative
retained by or acting on behalf of any Stockholder).
2.4. Nothing in this Agreement shall limit or restrict any Stockholder from
(a) taking any action in such Stockholder's capacity as a director of
the Company, to the extent applicable, or (b) voting, in such
Stockholder's sole discretion, on any matter other than the matters
referred to in Section 2.1 of this Agreement.
3. GRANT OF IRREVOCABLE PROXY COUPLED WITH AN INTEREST.
3.1. Each Stockholder, to the extent any other proxy in respect of any
Subject Shares prevents such Stockholder from voting in accordance
with Section 2.1, hereby revokes any such proxy and agrees that during
the period commencing on the date hereof and ending on the Expiration
Date, such Stockholder hereby irrevocably appoints Parent, Merger Sub
or any individual designated by Parent or Merger Sub as such
Stockholder's agent, attorney-in-fact and proxy (with full power of
substitution), for and in the name, place and stead of such
Stockholder, to vote (or cause to be voted) the Subject Shares held of
record by such Stockholder, in the manner set forth in Section 2.1, at
any meeting of the stockholders of the Company, however called, or in
connection with any written consent of the stockholders of the
Company. Parent may terminate this proxy with respect to
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any Stockholder at any time at its sole election by written notice
provided to such Stockholder.
3.2. Each Stockholder acknowledges that the proxy set forth in this Section
3 is irrevocable until the Expiration Date, is coupled with an
interest, and is granted in consideration of Parent and Merger Sub
entering into the Merger Agreement. Each Stockholder will take such
further action or execute such other instruments as may be necessary
to effectuate the intent of this proxy and/or this Agreement. The
proxy granted herein is intended to comply with the requirements of
Section 33-706 of the CBCA applicable to irrevocable proxies.
3.3. The vote of the proxyholder shall control in any conflict between the
vote by the proxyholder of Stockholder's Subject Shares and a vote by
Stockholder of Stockholder's Subject Shares.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF STOCKHOLDER. Each Stockholder,
severally and not jointly, hereby represents, warrants and covenants to
Parent as follows:
4.1. (a) Such Stockholder is the record owner of the Subject Shares; (b)
the Subject Shares set forth opposite his/her name on Exhibit A hereto
constitute such Stockholder's entire interest in the outstanding
capital stock and voting securities of the Company as of the date
hereof; (c) the Subject Shares are, and will be, at all times up until
the Expiration Date, free and clear of any liens, claims, options,
charges, security interests, proxies, voting trusts, agreements,
rights, understandings, arrangements, or other encumbrances (each, an
"Interest"), which Interest would prevent such Stockholder from voting
in accordance with Section 2.1 of this Agreement; (d) such Stockholder
has voting power and the power of disposition with respect to all of
the Subject Shares set forth opposite his/her name on Exhibit A hereto
outstanding on the date hereof, and will have voting power and power
of disposition with respect to all of the Subject Shares acquired by
such Stockholder after the date hereof; and (e) such Stockholder's
principal residence or place of business is accurately set forth on
Exhibit A hereto.
4.2. Such Stockholder has full power and legal capacity to execute and
deliver this Agreement and to comply with and perform such
Stockholder's obligations hereunder. This Agreement has been duly and
validly executed and delivered by such Stockholder and constitutes the
valid and binding obligation of such Stockholder, enforceable against
such Stockholder in accordance with its terms. The execution and
delivery of this Agreement by such Stockholder does not, and the
performance of Stockholder's obligations hereunder will not result in
any breach of or constitute a default (or an event that with notice or
lapse of time or both would become a default) under, or give to others
any right to terminate, amend, accelerate or cancel any right or
obligation under, or result in the creation of any lien or encumbrance
on any Subject Shares pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which Stockholder is a party or by
which Stockholder or the Subject Shares are or will be bound or
affected.
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4.3. Each Stockholder hereby unconditionally and irrevocably instructs the
Company not to and the Company shall not, other than with respect to
any Transfer to a Permitted Transferee, (a) permit the Transfer of, or
any grant of authority to vote with respect to, his/her Subject
Shares, in violation of this Agreement on its books and records by
such Stockholder, (b) issue a new certificate representing any such
Subject Shares or (c) record such vote unless and until such
Stockholder shall have complied with the terms of this Agreement.
4.4. Each Stockholder shall, and shall cause each of his/her
Representatives (each, a "Stockholder Representative") to, immediately
cease any discussions or negotiations with any other parties conducted
heretofore (other than Parent and its Affiliates) with respect to any
Acquisition Proposal. Each Stockholder shall not, nor shall it permit
his/her Stockholder Representatives to, directly or indirectly through
another person, (i) solicit, initiate or encourage (including by way
of furnishing non-public information), or take any other action to
facilitate, any inquiries or the making of any proposal that
constitutes an Acquisition Proposal or (ii) solicit, initiate,
encourage, facilitate or otherwise participate in any discussions or
negotiations regarding, or otherwise cooperate in any way with, any
Acquisition Proposal. Notwithstanding the foregoing, the Stockholder
shall not be deemed to have acted in violation of the provisions of
this Section 4.4 if (i) it shall respond to an unsolicited Acquisition
Proposal by doing nothing more than providing the party making such
unsolicited Acquisition Proposal (the "Interested Acquiror") copies of
the Merger Agreement prior to the time that the Merger Agreement is
publicly filed with the SEC, or (ii) in response to a specific request
made by an Interested Acquiror, the Company's legal counsel engages in
non-substantive discussions with the Interested Acquiror for the sole
purpose of clarifying the procedural requirements set forth in
Sections [5.4, 7.1, and 7.2] of the Merger Agreement to be followed by
the Interested Acquiror, the Company, and the Company's Board of
Directors as a condition precedent to consummation by such Interested
Acquiror of a Acquisition Proposal; PROVIDED, HOWEVER, that the
Stockholder shall provide Parent as promptly as reasonably practicable
(and, in any event, within 24 hours) with oral and written notice of
any actions taken pursuant to this sentence. For the avoidance of
doubt, any action taken by a Stockholder in such Stockholder's
capacity as a director of the Company shall not be deemed to be a
violation of this Section 4.4.
4.5. Each Stockholder hereby agrees to notify Parent as promptly as
practicable (an in any event within 24 hours after receipt) in writing
of (i) the number of New Shares which the Stockholder acquires on or
after the date hereof, and (ii) any inquiries or proposals which are
received by, any information which is requested from, or any
negotiations or discussions which are sought to be initiated or
continued with, the Stockholder or any of its Representatives with
respect to any Acquisition Proposal or any other matter referred to in
Section 4.4 above (including the material terms thereof and the
identity of such person(s) making such inquiry or proposal, requesting
such information or seeking to initiate or continue such negotiations
or discussions, as the case may be). Each Stockholder
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will keep Parent informed on a reasonably current basis of material
developments with respect to such Acquisition Proposal.
5. TERMINATION. This Agreement and the proxy granted pursuant to Section 3
hereof and all obligations of each Stockholder hereunder and thereunder
shall terminate and shall have no further force or effect as of the
Expiration Date.
6. SEVERABILITY. If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced under applicable Laws, 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, this
Agreement shall automatically be deemed to be modified so as to effect the
original intent of the parties as closely as possible in order that the
transactions contemplated hereby be consummated as originally contemplated
to the greatest extent possible.
7. BINDING EFFECT AND ASSIGNMENT. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned, in whole or
in part, by operation of law or otherwise by any of the parties without the
written consent of the other parties, except that Merger Sub may assign, in
its sole discretion, any of or all its rights, interests and obligations
under this Agreement to Parent or to any direct or indirect wholly owned
Subsidiary of Parent, provided that no such assignment shall relieve Merger
Sub of any of its obligations hereunder. Subject to the preceding sentence,
this Agreement will be binding upon, inure to the benefit of, and be
enforceable by, the parties and their respective successors and assigns.
Any assignment in violation of the preceding sentence shall be void.
8. AMENDMENT AND MODIFICATION. This Agreement may not be amended except by an
instrument in writing signed by each of the Parent, the Merger Sub, the
Company and the Stockholders holding a majority of the aggregate number of
Subject Shares.
9. SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The parties hereto acknowledge
that Parent will be irreparably harmed and that there will be no adequate
remedy at law for a violation of any of the covenants or agreements of each
Stockholder set forth herein. Therefore, it is agreed that, in addition to
any other remedies that may be available to Parent upon any such violation,
Parent shall have the right to enforce such covenants and agreements by
specific performance, injunctive relief or by any other means available to
Parent at law or in equity and each such Stockholder hereby waives any and
all defenses which could exist in his/her favor in connection with such
enforcement and waives any requirement for the security or posting of any
bond in connection with such enforcement.
10. NOTICES. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed given if
delivered personally, or sent by overnight courier (providing proof of
delivery) or transmitted by facsimile to the parties at the following
addresses (or at such other address for a party as shall be specified by
like notice):
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If to Parent or Merger Sub, to:
South Central Connecticut Regional Water Authority
00 Xxxxxxx Xxxxx
Xxx Xxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxxxxxx, President
Facsimile No.: (000) 000-0000
with a copy to (which shall not constitute notice):
Xxxxxx Xxxxxxx LLP
CityPlace I
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxx X. XxXxxx, Esq.
Facsimile No.: 000-000-0000
If to the Company, to:
BIW Limited
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxx, President
Facsimile No.: 000-000-0000
with a copy to (which shall not constitute notice):
Xxxxxx and Xxxx LLP
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Facsimile No.: 000-000-0000
If to a Stockholder, to the facsimile listed under such Stockholder's name
on the signature page hereto.
11. EXPENSES. Each party hereto shall pay its, his or her own expenses incurred
in connection with this Agreement.
12. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the Laws of the State of Connecticut, regardless of the
Laws that might otherwise govern under applicable principles of conflict of
laws thereof.
13. SUBMISSION TO JURISDICTION. Each party hereby irrevocably and
unconditionally agrees that any action, suit or proceeding, at law or
equity, arising out of or relating to this Agreement or any agreements or
transactions contemplated hereby shall only be brought in any federal court
of the State of Connecticut or the Superior Court of the State of
Connecticut, and hereby irrevocably and unconditionally expressly submits
to the
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personal jurisdiction and venue of such courts for the purposes thereof and
hereby irrevocably and unconditionally waives (by way of motion, as a
defense or otherwise) any and all jurisdictional, venue and convenience
objections or defenses that such party may have in such action, suit or
proceeding. Each party hereby irrevocably and unconditionally consents to
the service of process of any of the aforementioned courts, in the manner
provided for notice in Section 10 or otherwise. Nothing herein contained
shall be deemed to affect the right of any party to serve process in any
manner permitted by law or commence legal proceedings or otherwise proceed
against any other party in any other jurisdiction to enforce judgments
obtained in any action, suit or proceeding brought pursuant to this Section
13.
14. NO WAIVER. 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 their 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 their right to exercise any such or other right, power or
remedy or to demand such compliance.
15. ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This Agreement (a)
constitutes the entire agreement, and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to
the subject matter of this Agreement and (b) is not intended to confer upon
any Person other than the parties any rights or remedies.
16. COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be executed in one
or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have
been signed by each of the parties and delivered to the other parties.
Signatures on this Agreement and certain other documents to be delivered in
connection with this Agreement may be delivered by facsimile in lieu of an
original signature, and Parent, Merger Sub, each of the Stockholders and
the Company agrees to treat such signatures as original signatures and
shall be bound thereby.
17. EFFECT OF HEADINGS. The section headings herein are for convenience only
and shall not affect the construction or interpretation of this Agreement.
18. SEVERAL LIABILITIES. The representations, warranties, covenants and
agreements of each Stockholder are made and given severally only, and not
jointly and severally, and no Stockholder shall have any liability to
Parent, Merger Sub, the Company or any other person for any breach of this
Agreement by any other Stockholder party hereto.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered as of the date first above written.
PARENT STOCKHOLDERS:
By: /S/ XXXXX XXXXXXXXXXX /S/ XXXX XXXX XXXX
--------------------------- --------------------------
Name: Xxxxx Xxxxxxxxxxx Xxxx Xxxx Xxxx
Title: President and CEO Facsimile No: ____________
/S/ XXXXX X. XXXXX
--------------------------
MERGER SUB Xxxxx X. Xxxxx
Facsimile No: ____________
By: /S/ XXXXX XXXXXXXXXXX /S/ XXXXX XXXXXX-XXXX
--------------------------- --------------------------
Name: Xxxxx Xxxxxxxxxxx Xxxxx Xxxxxx-Xxxx
Title: President and CEO Facsimile No: ____________
/S/ XXXX XXXXXX-XXXX
--------------------------
COMPANY Xxxx Xxxxxx-Xxxx
Facsimile No: ____________
By: /S/ XXXXX XXXXXX-XXXX /S/ XXXXXX XX XXXXX
--------------------------- --------------------------
Name: Xxxxx Xxxxxx-Xxxx Xxxxxx xx Xxxxx
Title: Chairwoman and CEO Facsimile No: ____________
/S/ XXXXXX XXXXXXXX
--------------------------
Xxxxxx Xxxxxxxx
Facsimile No: ____________
/S/ X. XXXXX SAUERTAIG
--------------------------
X. Xxxxx Sauertaig
Facsimile No: ____________
/S/ XXXXXXX X. XXXXXXXX
--------------------------
Xxxxxxx X. Xxxxxxxx
Facsimile No: ____________
/S/ XXXX X. XXXXX
--------------------------
Xxxx X. Xxxxx
Facsimile No: ____________
[SIGNATURE PAGE TO VOTING AGREEMENT]
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EXHIBIT A
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STOCKHOLDER INFORMATION
STOCKHOLDER EXISTING SHARES ADDRESS
----------- --------------- -------
Xxxx Xxxx Xxxx 9,726 00 Xxxxxxx Xxxx
Xxxxxx, XX 00000-0000
Xxxxx X. Xxxxx 80,296 000 Xx. Xxxxx Xx., Xxxx 0
Xxx Xxxxx, XX 00000
Xxxxxx Xxxxxx-Xxxx * 169,296 00 Xxxxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Xxxx Xxxxxx-Xxxx * 21,074 00 Xxxx 00xx Xxxxxx, Xxx 0X
Xxx Xxxx, XX 00000
Xxxxxx xx Xxxxx ** 5,315 0 Xxxx-Xxxx Xxx
Xxxxxxx, XX 00000
Xxxxxx Xxxxxxxx 200 00 Xxxx Xxxxx
Xxxxx, XX 00000
X. Xxxxx Sauertaig 2,900 000 Xxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Xxxxxxx X. Xxxxxxxx 9,460 00 Xxxxxx Xxxx
Xxxxxxx, XX 00000
Xxxx X. Xxxxx 11,215 000 Xxxx Xxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Total
* 28,700 shares are held by Xxxx Xxxxxx-Xxxx and Xxxxx Xxxxxx-Xxxx as
co-trustees for a certain trust, the beneficiary of which is Xxxxx Xxxxxx-Xxxx.
For the purposes of this chart, all such shares have been allocated to Xxxxx
Xxxxx-Xxxx.
** 2,000 shares are held by Xx. xx Xxxxx jointly with his wife.
A-1
EXHIBIT B
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FORM OF JOINDER AGREEMENT
The undersigned hereby agrees, effective as of the date hereof, to become a
party to that certain Voting Agreement dated as of June [__], 2007, by and among
________________, ____________, the "Stockholders" named therein and
____________ (the "Agreement") and for all purposes of the Agreement, the
undersigned shall be included within the term "Stockholder" (as defined in the
Agreement). The address and facsimile number to which notices may be sent to the
undersigned is as follows:
Facsimile No.____________________.
[NAME OF UNDERSIGNED]
Date:
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B-1
