Exhibit 10.1


 


VOTING AGREEMENT


 


VOTING AGREEMENT, dated
as of March 24, 2009 (this “Agreement”), between Assured Guaranty Ltd., a
Bermuda company (the “Company”), and ACE Bermuda Insurance Ltd., a Bermuda
company (“ACE”).


 


WHEREAS, ACE currently owns 19,157,401 common shares, par value $0.01
per share (the “Common Shares”), of the Company representing approximately 21%
of the Company’s outstanding Common Shares; and


 


WHEREAS, the Company has entered into a purchase agreement, dated as of
November 14, 2008 (the “Purchase Agreement”), among the Company, Dexia
Holdings, Inc. and Dexia Credit Local S.A. pursuant to which the Company
will acquire (the “Acquisition”) substantially all of the capital stock of
Financial Securities Assurance Holdings Ltd. for consideration consisting of (i) $361
million in cash and (ii) up to 44,567,901 Common Shares; and


 


WHEREAS, the Company intends to finance the cash portion of the
Acquisition through the issuance of additional Common Shares.


 


NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements set forth herein, the
parties agree as follows:


 


ARTICLE I


 


REPRESENTATIONS AND WARRANTIES


 


1.1            Representation and Warranties of the
Company. The Company represents and warrants to ACE as follows:


 


(a)             The Company has been
duly incorporated and is validly existing as an exempted company in good
standing under the laws of the Islands of Bermuda.


 


(b)             The Company has the
corporate power and authority to enter into this Agreement. The execution,
delivery and performance of this Agreement by the Company has been approved by
all necessary corporate action on the part of the Company. This Agreement is a
valid and binding obligation of the Company enforceable against the Company in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, moratorium, reorganizations or similar laws affecting
creditors generally or by general equitable principles (whether applied in
equity or at law).


 


1.2            Representations and Warranties of ACE. ACE
hereby represents and warrants to the Company as follows:


 


(a)            ACE has been duly incorporated and is
validly existing as an exempted company in good standing under the laws of the
Islands of Bermuda.


 

















 


(b)             ACE has the corporate power and authority
to enter into this Agreement and to carry out its obligations hereunder. The
execution, delivery and performance of this Agreement by ACE and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary action on the part of ACE. This Agreement is a valid and
binding obligation of ACE enforceable against ACE in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
moratorium, reorganizations or similar laws affecting creditors generally or by
general equitable principles (whether applied in equity or at law).


 


ARTICLE II


 


VOTING AGREEMENT


 


2.1            Voting Agreement.


 


(a)             ACE agrees that, in
the event the Common Shares owned by ACE at any time after consummation of the
Acquisition represent more than 9.5% of the total number of outstanding Common
Shares entitled to vote in an election of directors, the voting rights with
respect to such Common Shares (the “Securities”) shall be reduced so that the
voting rights with respect to all such Common Shares will constitute less than
9.5% of the voting power of all issued and outstanding Common Shares of the
Company. The Company’s Board of Directors shall apply the principles set forth
in Bye-Laws 49-53 of the Company’s Bye-laws in making the adjustment described
in this Section 2.1. For the avoidance of doubt, in applying the
provisions of this Section 2.1 and Bye-Laws 49-53, a share may carry a
fraction of a vote.


 


(b)             ACE agrees to provide
such information as the Company’s Board of Directors may reasonably request for
the purpose of making the adjustments required under paragraph (a) above.


 


ARTICLE III


 


MISCELLANEOUS


 


3.1             Termination. This Agreement shall
automatically terminate and have no further force or effect upon the earlier of
(i) the date upon which the Purchase Agreement is terminated in accordance
with its terms and (ii) the date the Securities represent less than 9.5%
of the Common Shares outstanding. At any such time, ACE may request the Company
to confirm in writing that this Agreement has terminated and, upon such
request, the Company shall so confirm such termination.


 


3.2             Amendment. No amendment or waiver
of any provision of this Agreement will be effective with respect to any party
unless made in writing and signed by an officer of a duly authorized
representative of such party.


 


3.3             Counterparts and 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.


 


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3.4            Governing Law. This Agreement will
be governed by and construed in accordance with the laws of the Islands of
Bermuda.


 


3.5            WAIVER OF JURY TRIAL. EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.


 


3.6             Notices.
Any notice, request, instruction or other document to be given hereunder by
any party to the other must be in writing and will be deemed to have been duly
given (a) on the date of delivery if delivered personally or by telecopy
or facsimile, upon confirmation of receipt, (b) on the first business day
following the date of dispatch if delivered by a recognized next-day courier
service, or (c) on the third business day following the date of mailing if
delivered by registered or certified mail, return receipt requested, postage
prepaid. All notices hereunder shall be delivered as set forth below, or
pursuant to such other instructions as may be designated in writing by the
party to receive such notice.


 


(a)       If to ACE:


 


ACE Bermuda Insurance Ltd.


c/o ACE Limited


17 Woodbourne Avenue


Hamilton, HM 08 Bermuda


Attention: Robert F. Cusumano, Esq. 


Facsimile: (441) 296-7799


 


(b)      If to the Company:


 


Assured Guaranty Ltd.


30 Woodbourne Street


Hamilton. HM 08 Bermuda.


Attn: James M. Michener, Esq.


Facsimile: (441) 296-1083


 


3.7            Entire Agreement, Etc. This
Agreement constitute the entire agreement, and supersede all other prior agreements,
understandings, representations and warranties, both written and oral, between
the parties, with respect to the subject matter hereof. The parties acknowledge
that ACE has entered into a voting agreement, dated as of November 14,
2008, with the Company and nothing in this Agreement shall, or shall be deemed
to limit or supersede ACE’s obligations under such Agreement.


 


3.8            Captions. The article, section,
paragraph and clause captions herein are for convenience of reference only, do
not constitute part of this Agreement and will not be deemed to limit or
otherwise affect any of the provisions hereof.


 


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3.9             No
Third Party Beneficiaries. Nothing contained in this Agreement, expressed
or implied, is intended to confer upon any person or entity other than the
parties hereto, any benefit right or remedies.


 


[Signatures appear on next page]


 


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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the duly authorized officers of the parties hereto as of the date first
herein above written.


 


	
   

  	
  ASSURED GUARANTY LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ JAMES M. MICHENER

  
	
   

  	
   

  	
  Name: James. M. Michener

  
	
   

  	
   

  	
  Title: General Counsel and Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
  ACE BERMUDA INSURANCE LTD.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ ROBERT F. CUSUMANO

  
	
   

  	
   

  	
  Name: Robert F. Cusumano

  
	
   

  	
   

  	
  Title: General Counsel, ACE Limited

  



 


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