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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
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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
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