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EXHIBIT 10
SHAREHOLDER'S AGREEMENT
THIS SHAREHOLDER'S AGREEMENT (this "Agreement") dated as of October 25,
2000 is entered into by and between London Bridge Acquisition Company, Inc., a
Delaware corporation ("London Bridge"), and SAFECO Asset Management Company, a
Washington corporation ("SAM"), with respect to certain equity securities of
Phoenix International Ltd., Inc., a Florida corporation (the "Company").
WITNESSETH:
WHEREAS, London Bridge and the Company have entered into an Asset
Purchase Agreement (the "Purchase Agreement") dated as of the date hereof
pursuant to which London Bridge has agreed to purchase from the Company, and the
Company has agreed to sell to London Bridge, substantially all of the assets of
the Company (the "Purchase");
WHEREAS, as of the date hereof, certain of SAM's clients beneficially
own and SAM has the power to vote certain shares of the common stock, no par
value, of the Company (the "Company Common Stock"); and
WHEREAS, in consideration of London Bridge's agreements herein and in
the Purchase Agreement, SAM has agreed to vote the Company Common Stock in favor
of the Purchase, upon the terms and subject to the conditions set forth in the
Purchase Agreement, all in accordance with the terms and subject to the
conditions set forth herein.
NOW, THEREFORE, in contemplation of the foregoing and in consideration
of the mutual agreements, covenants, representations and warranties contained
herein and for other good and valuable consideration, the receipt of which is
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto agree as follows:
1. Certain Covenants.
1.1 Lock-Up. SAM hereby covenants and agrees during the
term of this Agreement that (a) except as consented to in writing by London
Bridge in its sole discretion, SAM will not, directly or indirectly, sell,
transfer, assign, pledge, hypothecate, tender or otherwise dispose of or limit
its right to vote in any manner any of the Securities (as hereinafter defined),
or agree to do any of the foregoing, and (b) SAM will not take any action which
would have the effect of preventing or disabling SAM from performing its
obligations under this Agreement.
1.2 No Solicitation. During the term of this Agreement,
neither SAM nor any person acting as an agent of SAM or otherwise on SAM's
behalf and with its authorization shall, directly or indirectly, solicit,
encourage or initiate negotiations with, or provide any information to, any
corporation, partnership, person or other entity or group (other than London
Bridge or an
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affiliate or an associate of London Bridge) concerning any sale, transfer,
pledge, tender or other disposition or conversion of the Securities. SAM will
immediately cease and cause to be terminated any existing activities,
discussions or negotiations with any parties conducted heretofore with respect
to any of the foregoing.
1.3 Voting Agreement. SAM either (i) has not granted or
(ii) has revoked or terminated any proxies, voting agreements or similar
arrangements previously given or entered into with respect to the Securities.
SAM agrees (i) to vote all of the Securities in favor of the adoption and
approval of the Purchase Agreement and the Purchase and (ii) to vote all of the
Securities against: (A) any extraordinary corporate transaction (other than the
Purchase), such as a merger, consolidation, business combination, tender or
exchange offer, reorganization, recapitalization, liquidation or other change of
control involving the Company or any of its subsidiaries, including but not
limited to any Acquisition Proposal (as defined in the Purchase Agreement) and
(B) any sale or transfer of a material amount of the assets or securities of the
Company or any of its subsidiaries (other than with respect to the Purchase
Agreement).
1.4 Public Announcement. Neither party shall issue any
press release or otherwise make any public statement with respect to the matters
contemplated herein which names or attributes any action by or position of the
other with respect to the Company or the voting of the Securities without the
prior approval of the other party, except as may be required by law.
2. Representation and Warranties.
2.1 Representations and Warranties of London Bridge.
London Bridge hereby represents and warrants to SAM as follows:
(a) Authorization. London Bridge is a
corporation duly organized, validly existing and in good
standing under the laws of its state of incorporation. London
Bridge has all requisite power and authority to execute and
deliver this Agreement and to consummate the transactions
contemplated hereby. London Bridge has duly authorized,
executed and delivered this Agreement and this Agreement is a
legal, valid and binding agreement of London Bridge,
enforceable against London Bridge in accordance with its
terms.
(b) No Violation. Neither the execution and
delivery of this Agreement by London Bridge nor the
consummation of the transactions contemplated hereby by London
Bridge will (a) require London Bridge to file or register
with, or obtain any material permit, authorization, consent or
approval of, any governmental agency, authority,
administrative or regulatory body, court or other tribunal,
foreign or domestic, or any other entity, or (b) violate, or
cause a breach of or default under, any contract, agreement or
understanding, any statute or law, or any judgment, decree,
order, regulation or rule of any governmental agency,
authority, administrative or regulatory body, court or other
tribunal, foreign or domestic, or any other entity or any
arbitration award binding upon London Bridge.
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2.2 Representations and Warranties of SAM. SAM hereby
represents and warrants to London Bridge as follows:
(a) Ownership. SAM is the investment manager for
certain clients who beneficially own and have good and
marketable title to, 1,171,700 shares of Company Common Stock
(collectively, the "Securities"), in each case free and clear
of all liabilities, claims, liens, options, proxies, charges,
participations and encumbrances of any kind or character
whatsoever.
(b) Authorization. SAM has all requisite power
and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby and has sole
voting power and sole power of disposition, with respect to
the Securities, with no restrictions on its voting rights or
rights of disposition pertaining thereto, other than general
fiduciary responsibilities to its clients. SAM has duly
authorized, executed and delivered this Agreement and this
Agreement is a legal, valid and binding agreement of SAM,
enforceable against SAM in accordance with its terms.
(c) No Violation. Neither the execution and
delivery of this Agreement by the SAM nor the consummation of
the transactions contemplated hereby by the SAM will (a)
require SAM to file or register with, or obtain any material
permit, authorization, consent or approval of, any
governmental agency, authority, administrative or regulatory
body, court or other tribunal, foreign or domestic, or any
other entity, or (b) violate, or cause a breach of or default
under, any contract, agreement or understanding, any statute
or law, or any judgment, decree, order, regulation or rule of
any governmental agency, authority, administrative or
regulatory body, court or other tribunal, foreign or domestic,
or any other entity or any arbitration award binding upon SAM.
No proceedings are pending against SAM which, if adversely
determined, will have a material adverse effect on SAM's
ability to vote or dispose of any of the Securities. SAM has
not previously assigned or sold any of the Securities to any
third party.
(d) SAM Has Adequate Information. SAM is a
sophisticated party with respect to the Securities and has
adequate information concerning the business and financial
condition of the Company to make an informed decision
regarding the Securities and has independently and without
reliance upon London Bridge and based on such information as
SAM has deemed appropriate, made its own analysis and decision
to enter into this Agreement. SAM acknowledges that London
Bridge has not made and does not make any representation or
warranty, whether express or implied, of any kind or character
except as expressly set forth in this Agreement.
3. Survival of Representations and Warranties. The respective
representations and warranties of SAM and London Bridge contained herein or in
any certificates or other documents delivered in connection herewith shall not
be deemed waived or otherwise affected by any
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investigation made by the other party hereto, and each representation and
warranty contained herein shall survive the closing of the transactions
contemplated hereby until the expiration of the applicable statute of
limitations, including extensions thereof.
4. Specific Performance. SAM acknowledges that London Bridge 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 SAM which are contained in
this Agreement. It is accordingly agreed that, in addition to any other remedies
which may be available to London Bridge upon the breach by SAM of such covenants
and agreements, London Bridge shall have the right to obtain injunctive relief
to restrain any breach or threatened breach of such covenants or agreements or
otherwise to obtain specific performance of any of such covenants or agreements.
5. Miscellaneous.
5.1 Term. This Agreement (including, but not limited to,
the covenants contained herein) shall terminate upon the earlier to occur of (i)
the consummation of the transactions contemplated by the Purchase Agreement or
(ii) the termination of the Purchase Agreement according to its terms
(including, but not limited to, a termination by the Company pursuant to the
exercise of its fiduciary obligations pursuant to Section 8.1(i) of the Purchase
Agreement).
5.2 Expenses. Each of the parties hereto shall pay its
own expenses incurred in connection with this Agreement. Each of the parties
hereto warrants and covenants to the others that it will bear all claims for
brokerage fees attributable to action taken by it.
5.3 Binding Effect. This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the parties hereto and their
respective representatives and permitted successors and assigns.
5.4 Entire Agreement. This Agreement contains the entire
understanding of the parties and supersedes all prior agreements and
understandings between the parties with respect to its subject matter. This
Agreement may be amended only by a written instrument duly executed by the
parties hereto.
5.5 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. Time is of the essence with respect to all
provisions of this Agreement.
5.6 Assignment. This Agreement may not be transferred or
assigned by SAM but may be assigned by London Bridge to any of its affiliates or
to any successor to its business and will be binding upon and inure to the
benefit of any such affiliate or successor.
5.7 Counterparts. This Agreement may be executed in two
counterparts, each of which shall be an original, but both of which together
shall constitute one and the same Agreement.
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5.8 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 if so given) by delivery, telegram or
telecopy, or by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any national courier service, provided that any notice
delivered as herein provided shall also be delivered by telecopy at the time of
such delivery. All communications hereunder shall be delivered to the respective
parties at the following addresses (or at such other address for a party as
shall be specified by like notice, provided that notices of a change of address
shall be effective only upon receipt thereof):
(a) If to London Bridge: London Bridge Group
25 New London Bridge House
25 New London Bridge Street
16th Floor
London SE1 9SG
United Kingdom
Attention: Jon Lee
Telecopy: 011-44-207-940-0241
with a copy to: LBSS, Inc.
2550 W. Tyvola Road
Suite 460
Charlotte, North Carolina 28217
Attention: Patricia B. Todd
Telecopy: (704) 357-8220
and
King & Spalding
191 Peachtree Street
Atlanta, Georgia 30303-1763
Attention: Alan J. Prince, Esq.
Mark E. Thompson, Esq.
Telecopy: (404) 572-5100
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(b) If to
SAM : SAFECO Asset Management Company
601 Union Street, Suite 2500
Seattle, Washington 98101
Attention: Tom Maguire
Telecopy: 206-545-3446
with a copy to: SAFECO Corporation
Corporate Legal Department
SAFECO Plaza T-18
Seattle, Washington 98185
Attention: Liz Englund
Telecopy: 206-545-6277
5.9 Governing Law. This Agreement shall be governed by
and construed and enforced in accordance with the laws of the State of Delaware,
without regard to its principles of conflicts of laws.
5.10 Enforceability. The invalidity or unenforceability of
any provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain in
full force and effect.
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IN WITNESS WHEREOF, London Bridge and SAM have caused this Agreement to
be duly executed as of the day and year first above written.
LONDON BRIDGE ACQUISITION COMPANY, INC.
By: /s/ Jon Lee
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Name: Jon Lee
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Title: President
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SAFECO ASSET MANAGEMENT COMPANY
By: /s/ Thomas M. Maguire
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Name: Thomas M. Maguire
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Title: Vice President
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