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Exhibit 2.2
THIS AGREEMENT (this "Agreement"), dated as of November 18, 2000, is by
and among Radian Group Inc., a Delaware corporation (the "Acquiror") and Daniel
Gross (the "Shareholder").
WHEREAS, concurrently herewith, Enhance Financial Services Group Inc., a
New York corporation (the "Company"), the Acquiror and a wholly-owned
subsidiary of the Acquiror are entering into an Agreement and Plan of Merger
(as the same may be amended from time to time, the "Merger Agreement;"
capitalized terms used without definition herein have the meanings ascribed
thereto in the Merger Agreement);
WHEREAS, Shareholder is the beneficial owner of the number of shares of
Company Common Stock set forth under his name following his signature hereto
(the "Subject Shares");
WHEREAS, approval of the Merger Agreement by the shareholders of the
Company is a condition to the consummation of the Merger; and
WHEREAS, as a condition to its entering into the Merger Agreement, the
Acquiror has required that Shareholder agree, and Shareholder has agreed, to
enter into this Agreement;
NOW THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements set forth herein, the parties hereto agree as follows:
Section 1. Agreement to Vote. (a) Shareholder hereby agrees to attend
the meeting of stockholders of the Company to be called and held for the
purpose of obtaining the approval of the Stockholders of the Company of the
Merger Agreement and the Merger (the "Company Meeting"), in person or by proxy,
and to vote (or cause to be voted) all Subject Shares, and any other voting
securities of the Company that Shareholder owns or has the right to vote
(whether such ownership or right exists as of the date hereof or is obtained
thereafter), (i) for approval and adoption of the Merger Agreement and the
Merger and (ii) against any proposals relating to an acquisition of control of
the Company by, or any other business combination of the Company or any of its
subsidiaries with, any person or entity other than the Acquiror or its
affiliates. Such agreement to vote shall apply also to any adjournment or
adjournments of the Company Meeting, and to any other meeting of shareholders
or action by written consent at which any item of business referred to in the
preceding sentence is presented for approval.
(b) Shareholder hereby agrees that at all times prior to and including the
date of the Company Meeting, Shareholder shall continue to own and have the
right to vote the number and kind of Subject Shares identified beneath his
signature hereto.
(c) To the extent inconsistent with the foregoing provisions of this
Section 1, Shareholder hereby revokes any and all previous proxies with respect
to Shareholder's Subject Shares or any other voting securities of the Company.
Section 2. No Solicitation. Shareholder shall not, directly or indirectly,
solicit or encourage (including by way of furnishing information), or take any
other action to facilitate, any inquiries or the making of any proposal which
constitutes, or may reasonably be expected to
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lead to, any Acquisition Proposal with respect to the Company or any insurance
subsidiary of the Company. Shareholder shall promptly (and in any event, within
24 hours of becoming aware of an inquiry or proposal) advise the Acquiror orally
and in writing of any such inquiries or proposals of which Shareholder becomes
aware. Notwithstanding the foregoing, no action by a Shareholder who is a
director or officer of the Company at the time of such action, to the extent
taken in such capacity and in compliance with Section 4.5 of the Merger
Agreement, shall be deemed to violate this Section 2.
Section 3. Securities Act Covenants and Representations. Shareholder
hereby agrees and represents to the Acquiror as follows:
(a) Shareholder has been advised that the offering, sale and delivery
of Parent Common Stock pursuant to the Merger will be registered under the
Securities Act on the Registration Statement. Shareholder has also been advised,
however, that to the extent Shareholder is considered an "affiliate" of the
Company at the time the Merger Agreement is submitted to a vote of the
shareholders of the Company, any public offering or sale by Shareholder of any
Parent Common Stock received by Shareholder in the Merger will, under current
law, require either (i) the further registration under the Securities Act of any
shares of Parent Common Stock to be sold by Shareholder, (ii) compliance with
Rule 145 promulgated by the SEC under the Securities Act or (iii) the
availability of another exemption from such registration under the Securities
Act. Shareholder hereby acknowledges and agrees that the Parent is under no
obligation to register the sale, transfer or other disposition of Parent Common
Stock by Shareholder or on Shareholder's behalf under the Securities Act, or to
take any other action necessary in order to make compliance with an exemption
from such registration available.
(b) Shareholder has read this Agreement and the Merger Agreement and
has discussed their requirements and other applicable limitations upon
Shareholder's ability to sell, transfer or otherwise dispose of Parent Common
Stock, to the extent Shareholder believed necessary, with Shareholder's counsel
or counsel for the Company.
(c) Shareholder also understands that stop transfer instructions will
be given to the Acquiror's transfer agent with respect to Parent Common Stock
and that a legend will be placed on the certificates for the Parent Common Stock
issued to Shareholder, or any substitutions therefor, to the extent Shareholder
is considered an "affiliate" of the Company at the time the Merger Agreement is
submitted to a vote of the shareholders of the Company.
Section 4. Further Assurances. Each party shall execute and deliver
such additional instruments and other documents and shall take such further
actions as may be necessary or appropriate to effectuate, carry out and comply
with all of its obligations under this Agreement. Without limiting the
generality of the foregoing, none of the parties hereto shall enter into any
agreement or arrangement (or alter, amend or terminate any existing agreement or
arrangement) if such action would impair the ability of any party to effectuate,
carry out or comply with all the terms of this Agreement. If requested by the
Acquiror, Shareholder agrees to execute a letter to the Acquiror representing
that Shareholder has complied with Shareholder's obligations hereunder as of the
date of such letter.
Section 5. Representations and Warranties of the Shareholder.
Shareholder represents and warrants to the Acquiror that: this Agreement (i) has
been duly authorized, executed and delivered by Shareholder and (ii) constitutes
the valid and binding agreement of Shareholder, enforceable against Shareholder
in accordance with its terms, except as may be
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limited by applicable bankruptcy, insolvency, reorganization, moratorium and
other similar laws of general application which may affect the enforcement of
creditors' rights generally and by general equitable principles; Shareholder is
the record and beneficial owner of the Subject Shares set forth beneath his
signature hereto, with sole voting and dispositive power over such Subject
Shares (except as may be described beneath his signature hereto); the Subject
Shares listed beneath his signature hereto are the only voting securities of
the Company owned (beneficially or of record) by Shareholder; the Subject
Shares are owned by Shareholder free and clear of all liens, charges,
encumbrances, agreements and commitments of every kind; and neither the
execution or delivery of this Agreement nor the consummation by Shareholder of
the transactions contemplated hereby will violate any provisions of any law,
rule or regulation applicable to Shareholder or any contract or agreement to
which Shareholder is a party, other than such violations of contracts or
agreements as would not prevent or delay the performance by Shareholder of his
or her obligations hereunder or impose any liability or obligation on the
Company or the Acquiror.
Section 6. Effectiveness and Termination. It is a condition precedent to
the effectiveness of this Agreement that the Merger Agreement shall have been
executed and delivered by each of the parties thereto and be in full force and
effect. In the event the Merger Agreement is terminated in accordance with its
terms, this Agreement shall automatically terminate and be of no further force
or effect. Upon such termination, except for any rights any party may have in
respect of any breach by any other party of its or his obligations hereunder,
none of the parties hereto shall have any further obligation or liability
hereunder.
Section 7. Miscellaneous.
(a) Notices, Etc. All notices, requests, demands or other communications
required by or otherwise with respect to this Agreement shall be in writing and
shall be deemed to have been duly given to any party when delivered personally
(by courier service or otherwise), when delivered by telecopy and confirmed by
return telecopy, or seven days after being mailed by first-class mail, postage
prepaid in each case to the applicable addresses set forth below:
If to Shareholder, at the address of Shareholder as set forth on the
shareholder list maintained by or on behalf of the Company;
If to the Acquiror:
Radian Group Inc.
1601 Market Street
Philadelphia, PA 19103
Attn: Howard S. Yaruss
Telecopy: (215) 405-9160
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With a copy to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attn: Trevor S. Norwitz, Esq.
Telecopy: (212) 403-2000
or to such other address as such party shall have designated by notice so given
to each other party.
(b) Amendments, Waivers, Etc. This Agreement may not be amended, changed,
supplemented, waived or otherwise modified or terminated except by an
instrument in writing signed by the Acquiror and Shareholder.
(c) Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of and be enforceable by the parties and their respective
successors and assigns, including without limitation in the case of any
corporate party hereto any corporate successor by merger or otherwise, and in
the case of any individual party hereto any trustee, executor, heir, legatee or
personal representative succeeding to the ownership of Shareholder's Subject
Shares or other securities subject to this Agreement. Notwithstanding any
transfer of Subject Shares, the transferor shall remain liable for the
performance of all obligations under this Agreement of the transferor.
(d) Entire Agreement. This Agreement embodies the entire agreement and
understanding among the parties relating to the subject matter hereof and
supersedes all prior agreements and understandings relating to such subject
matter. There are no representations, warranties or covenants by the parties
hereto relating to such subject matter other than those expressly set forth in
this Agreement.
(e) Severability. If any term of this Agreement or the application thereof
to any party or circumstance shall be held invalid or unenforceable to any
extent, the remainder of this Agreement and the application of such term to the
other parties or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by applicable law, provided that in
such event the parties shall negotiate in good faith in an attempt to agree to
another provision (in lieu of the term or application held to be invalid or
unenforceable) that will be valid and enforceable and will carry out the
parties' intentions hereunder.
(f) Specific Performance. The parties acknowledge that money damages are
not an adequate remedy for violations of this Agreement and that any party may,
in its sole discretion, apply to a court of competent jurisdiction for
specific performance or injunctive or such other relief as such court may deem
just and proper in order to enforce this Agreement or prevent any violation
hereof and, to the extent permitted by applicable law, each party waives any
objection to the imposition of such relief.
(g) Remedies Cumulative. All rights, powers and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise or beginning of the
exercise of any thereof by any party shall not preclude the simultaneous or
later exercise of any other such right, power or remedy by such party.
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(h) 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
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.
(i) No Third-Party Beneficiaries. This Agreement is not intended to be for
the benefit of and shall not be enforceable by any person or entity who or which
is not a party hereto.
(j) No Jury Trial. Each party hereto hereby waivers any right to a trial by
jury in connection with any such action, suit or proceeding.
(k) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
(l) Name, Captions, Gender. The name assigned this Agreement and the
section captions used herein are for convenience of reference only and shall not
affect the interpretation or construction hereof.
(m) Counterparts. This Agreement may be executed by facsimile and in any
number of counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one instrument.
(n) Expenses. Each of the Acquiror and Shareholder shall bear its or his or
her own expenses, as the case may be, incurred in connection with this Agreement
and the transactions contemplated hereby, except that in the event of a dispute
concerning the terms or enforcement of this Agreement, the prevailing party in
any such dispute shall be entitled to reimbursement of reasonable legal fees and
disbursements from the other party or parties to such dispute.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first above written.
RADIAN GROUP INC.
By: /s/ Frank Filipps
--------------------------------
Name:
Title:
[SHAREHOLDER]
/s/ Daniel Gross
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Daniel Gross
No. of Subject Shares on the date
hereof: 216,000
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