exv10w2






Exhibit 10.2




VOTING AGREEMENT




          THIS VOTING AGREEMENT, dated as of October 28, 2010 (this “Agreement”), between
Fairfax Financial Holdings Limited, a Canadian corporation (“Parent”), and Jerome M. Shaw
(the “Stockholder”), solely in Stockholder’s capacity as an owner of common stock, par
value $0.01 per share (“Company Common Stock”) of the Company.




          WHEREAS, on October 28, 2010, Parent, First Mercury Financial Corporation, a Delaware
corporation (the “Company”), and Fairfax Investments III USA Corp., a Delaware corporation
and a wholly owned subsidiary of Parent (“Merger Sub”), entered into an Agreement and Plan
of Merger (the “Merger Agreement”; capitalized terms used but not otherwise defined herein
shall have the respective meanings ascribed to such terms in the Merger Agreement); and




          WHEREAS, as a condition to the willingness of Parent and Merger Sub to enter into the Merger
Agreement, Parent and Merger Sub have required that the Stockholder enter into this Agreement, and
in order to induce Parent and Merger Sub to enter into the Merger Agreement, the Stockholder has
agreed to enter into this Agreement.




          NOW, THEREFORE, in consideration for the mutual covenants contained herein, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, agree as follows:




          1. Agreement to Vote. At every meeting of the stockholders of the Company, and at
every postponement or adjournment thereof, the Stockholder irrevocably agrees to appear at such
meeting and vote (in person or by proxy) all of the Voting Shares (as hereinafter defined )
entitled to be voted thereat or to cause all of the Voting Shares to be voted (i) in favor of the
approval of the Merger Agreement and the transactions contemplated thereby; (ii) against any
action, agreement or transaction (other than the Merger Agreement or the transactions contemplated
thereby) or proposal (including a Takeover Proposal) that would result in a breach of any material
covenant, representation or warranty or any other material obligation or agreement of the Company
under the Merger Agreement or that would reasonably be expected to result in any of the conditions
to the Company’s obligations under the Merger Agreement not being fulfilled, and (iii) in favor of
any other matter necessary to the consummation of the transactions contemplated by the Merger
Agreement that is voted upon by the stockholders of the Company. The Stockholder acknowledges
receipt and review of a copy of the Merger Agreement.




          2. Grant of Proxy. In furtherance of the agreements contained in Section 1 of
this Agreement and as security for such agreements, the Stockholder hereby irrevocably appoints
Parent, the executive officers of Parent, and each of them individually, as the sole and exclusive
attorneys-in-fact and proxies of the Stockholder, for and in the name, place and stead of the
Stockholder, with full power of substitution and resubstitution, to vote, grant a consent or
approval in respect of, or execute and deliver a proxy to vote, if and to the extent the
Stockholder fails to comply with the agreements contained in Section 1 of this Agreement, the
Voting Shares, (i) in favor of the approval of the Merger Agreement and the transactions
contemplated thereby; (ii) against any Takeover Proposal (regardless of whether it is a Superior
Proposal); (iii) against any action, agreement or transaction (other than the Merger Agreement or
the transactions





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contemplated thereby) or proposal (including a Takeover Proposal) that would
reasonably be expected to result in a breach of any material covenant, representation or warranty
or any other material obligation or agreement of the Company under the Merger Agreement or that
would reasonably be expected to result in any of the conditions to the Company’s obligations under
the Merger Agreement not being fulfilled, and (iv) in favor of any other matter necessary to the
consummation of the transactions contemplated by the Merger Agreement and considered voted upon by
the stockholders of the Company. THIS PROXY IS IRREVOCABLE AND COUPLED WITH AN INTEREST.




          3. Representations and Warranties. Stockholder represents and warrants that:




               (a) (i) Schedule I to this Agreement sets forth the number of shares of Company Common Stock
(“Voting Shares”), of which Stockholder owns of record or otherwise has the power to vote,
(ii) Stockholder owns the Voting Shares, free and clear of any claims, liens, charges,
encumbrances, voting agreements and commitments of any kind (other than this Agreement) and (iii)
Stockholder has the power to vote all the Voting Shares without restriction (other than as
contemplated by this Agreement) and (iv) no proxies heretofore given in respect of any or all of
the Voting Shares are irrevocable and that any such proxies have heretofore been revoked. If,
after the date of this Agreement, Stockholder acquires the power to votes shares of Company Common
Stock not set forth in Schedule I, such shares of Company Common Stock shall be deemed to be Voting
Shares for all purposes of this Agreement.



               (b) (i) Stockholder has all necessary power and authority to enter into this Agreement; (ii)
this Agreement has been duly and validly executed and delivered by Stockholder and, assuming due
authorization, execution and delivery by Parent, constitutes a legal, valid and binding obligation
of Stockholder, enforceable against Stockholder in accordance with its terms (subject to applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws
affecting creditors rights generally and, by general principles of equity, including good faith and
fair dealing, regardless whether in a proceeding at equity or at law); and (iii) the failure of the
spouse, if any, of such Stockholder to be a party or signatory to this Agreement shall not (x)
prevent such Stockholder from performing such Stockholder’s obligations contemplated hereunder or
(y) prevent this Agreement from constituting the legal, valid and binding obligation of Stockholder
in accordance with its terms; and



               (c) (i) no filing with, and no permit, authorization, consent or approval of any state,
federal or foreign governmental authority is necessary on the part of Stockholder for the execution
and delivery of this Agreement by Stockholder and, except as contemplated by the Merger Agreement,
the consummation by Stockholder of the transactions contemplated hereby and (ii) neither the
execution and delivery of this Agreement by Stockholder nor the consummation by Stockholder of the
transactions contemplated hereby nor compliance by Stockholder with any of the provisions hereof
shall (x) result in the creation of a lien on any of the Voting Shares or (y) violate any order,
writ, injunction, decree, statute, rule or regulation applicable to Stockholder or any of the
Voting Shares, except in the case of (x) or (y) for violations, breaches or defaults that would not
in the aggregate materially impair the ability of Stockholder to perform Stockholder’s obligations
hereunder.



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          4. Remedies. Each party acknowledges and agrees that each party hereto will be
irreparably damaged in the event any of the provisions of this Agreement are not performed by the
parties in accordance with their specific terms or are otherwise breached. Accordingly, it is
agreed that each party hereto shall be entitled to an injunction to prevent breaches of this
Agreement, and to specific enforcement of this Agreement and its terms and provisions in any action
instituted in any court of the United States or any state having subject matter jurisdiction. All
remedies, either under this Agreement or by law or otherwise afforded to any party, shall be
cumulative and not alternative.




          5. Termination. This Agreement and all of the rights and obligations of the parties
hereunder (except Section 9) shall terminate and cease to have any force or effect, without any
further action by any party, upon the earliest of (i) the termination of the Merger Agreement in
accordance with its terms and (ii) the Effective Time. Section 9 shall survive the termination of
this Agreement. Nothing in this Section 5 shall relieve any party of liability for any breach of
this Agreement.




          6. Transfer of Shares. The Stockholder agrees that it shall not, directly or
indirectly, (a) sell, assign, transfer (including by operation of law), lien, pledge, dispose of or
otherwise encumber any of the Voting Shares or otherwise agree to do any of the foregoing,
(b) deposit any Voting Shares into a voting trust or enter into a voting agreement or arrangement
or grant any proxy or power of attorney with respect thereto that is inconsistent with this
Agreement, (c) enter into any contract, option or other arrangement or undertaking with respect to
the direct or indirect acquisition or sale, assignment, transfer (including by operation of law) or
other disposition of any Voting Shares or (d) take any action that would make any representation or
warranty of the Stockholder herein untrue or incorrect in any material respect or have the effect
of preventing or disabling the Stockholder from performing Stockholder’s obligations hereunder;
provided, however, Stockholder may transfer any or all of the Voting shares to any
person who shall have prior to such transfer executed and delivered to Parent a joinder to this
Agreement pursuant to which such person shall be bound by all of the terms and provisions of this
Agreement, which joinder shall be reasonably acceptable to Parent. Any transfer in breach of this
Section 6 shall be void.




          7. No Solicitation of Transactions. The Stockholder shall (a) not, directly or
indirectly, through any officer, director, agent or otherwise, engage in any action prohibited by
Section 6.04 of the Merger Agreement, and (b) direct or cause Stockholder’s representatives and
agents to not to engage in any action prohibited by Section 6.04 of the Merger Agreement. The
Stockholder shall promptly advise the Company orally and in writing of (a) any Takeover Proposal or
any request for information with respect to any Takeover Proposal, the material terms and
conditions of such Takeover Proposal or request and the identity of the person making such Takeover
Proposal or request and (b) any changes in any such Takeover Proposal or request.




          8. Agreement Solely as Stockholder. The Stockholder is entering into this Agreement
solely in the Stockholder’s capacity as record holder or beneficial owner of the Voting Shares and
nothing herein shall limit or affect any actions taken by the Stockholder or any employee, officer,
director, partner or other affiliate of the Stockholder, in Stockholder’s capacity as a director or
officer of the Company (or a Company Subsidiary).





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          9. Miscellaneous.




               (a) Successors and Assigns. The terms and conditions of this Agreement shall inure to
the benefit of and be binding upon the respective successors and assigns of the parties. Nothing
in this Agreement, express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities
under or by reason of this Agreement, except as expressly provided in this Agreement.



               (b) Governing Law. This Agreement will be governed by and construed in accordance
with the laws of the State of Delaware applicable to contracts made and to be performed entirely
within such State.



               (c) Counterparts; Facsimile. For the convenience of the parties hereto, this
Agreement may be executed in any number of separate counterparts, each such counterpart being
deemed to be an original instrument, and all such counterparts will together constitute the same
agreement. Executed signature pages to this Agreement may be delivered by facsimile and such
facsimiles will be deemed as sufficient as if actual signature pages had been delivered.



               (d) Titles and Subtitles. The titles and subtitles used in this Agreement are used
for convenience only and are not to be considered in construing or interpreting this Agreement.



               (e) Amendment. This Agreement may not be amended except by an instrument in writing
signed by each of the parties hereto.



               (f) Severability. If any provision of this Agreement or the application thereof to
any person (including, the officers and directors of the Company) or circumstance is determined by
a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions
hereof, or the application of such provision to persons or circumstances other than those as to
which it has been held invalid or unenforceable, will remain in full force and effect and shall in
no way be affected, impaired or invalidated thereby, 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, the parties shall negotiate in good faith in an effort to agree upon a
suitable and equitable substitute provision to effect the original intent of the parties.



               (g) Parent Acknowledgement. Parent acknowledges that other than as set forth in
Section 3 Stockholder has made no representation or warranty, whether express or implied.



               (h) Entire Agreement. This Agreement constitutes the full and entire understanding
and agreement between the parties with respect to the subject matter hereof, and any other written
or oral agreement relating to the subject matter hereof existing between the parties is expressly
canceled.



[signature page follows]




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          IN WITNESS WHEREOF, Parent and Stockholder have caused this Agreement to be executed as
of the date first written above.




	 	 	 	 	 
	 	FAIRFAX FINANCIAL HOLDINGS LIMITED

 	 
	 	By:  	/s/
John Varnell
	 
	 	 	Name:  	John Varnell	 
	 	 	Title:  	Vice President and Chief Financial Officer	 
	 
	 	JEROME M. SHAW

 	 
	 	
/s/ Jerome M. Shaw	 
	 	 	 
	 	 	 
	 



[Signature Page to Voting Agreement]





 









 








Schedule I



1,937,522 shares of Company Common Stock