VOTING AGREEMENT
VOTING AGREEMENT, dated as of March 11, 1998, by and
among MHD Acquisition Corp., a Delaware corporation
("Acquiror"), and Xxxxxx Xxxxx, Jr. and Xxxxxx Xxxxx &
Company, LLC, in their respective capacities as
stockholders ("Stockholders") of Portec, a Delaware
corporation (the "Company"), on the other hand (this
"Agreement");
WHEREAS, concurrently herewith, Acquiror and the
Company are entering into an Agreement and Plan of Merger
dated March 11, 1989 providing for a Merger at price of
$16.00 per share (the "Merger Agreement"; capitalized
terms used without definition herein having the meanings
ascribed thereto in the Merger Agreement);
WHEREAS, Stockholders are as of the date hereof the
beneficial owners of 1,020,328 shares of Common Stock,
par value $1.00 per share, of the Company (collectively,
the "Shares");
WHEREAS, approval of the Merger Agreement by the
Company's stockholders is a condition to the consummation
of the Merger;
WHEREAS, as a condition to its entering into the
Merger Agreement, Acquiror has required that Stockholders
agree, and Stockholders have agreed, to enter into this
Agreement; and
WHEREAS, Stockholders have been informed that the
Board of Directors of the Company has approved the Merger
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, Restrictions on
Dispositions, Etc.
a. Each Stockholder hereby agrees to attend
any stockholders meeting of the Company, in person
or by proxy, and to vote (or cause to be voted) all
Shares, and any other voting securities of the
Company, owned by such Stockholder whether issued
heretofore or hereafter, that such person owns or
has the right to vote, for approval and adoption of
the Merger Agreement and the Merger, and the
transactions contemplated by the Merger Agreement,
such agreement to vote to apply also to any
adjournment of the stockholder meeting of the
Company. Each Stockholder agrees not to grant any
proxies or enter into any voting agreement or
arrangement inconsistent with this Agreement or the
Limited Irrevocable Proxy of even date herewith
executed by Stockholders in favor of Acquiror
("Irrevocable Proxy").
b. Each Stockholder hereby agrees that,
without the prior written consent of Acquiror, such
Stockholder shall not, directly or indirectly, sell,
offer to sell, grant any option for the sale of or
otherwise transfer or dispose of, or enter into any
agreement to sell, any Shares and any other voting
securities of the Company that such Stockholder owns
beneficially or otherwise. Each Stockholder agrees
that Acquiror may instruct the Company to enter stop
transfer orders with the transfer agent(s) and the
registrar(s) of the Shares against the transfer of
Shares and any other voting securities of the
Company that Stockholder owns beneficially or
otherwise. If requested by Acquiror, each
Stockholder agrees to surrender or cause to be
surrendered to the transfer agent(s) and
registrar(s) of the Shares certificates
representing Shares registered in the name of
Stockholder, in exchange for certificates
representing Shares containing a legend to the
effect of the following:
(i) The shares represented by this
certificate are subject to restrictions on
transfer, and disposition as set forth in the
Voting Agreement dated as of March 11, 1998,
among MHD Acquisition Corp., Delaware
corporation, and Xxxxxx X. Xxxxx, Xx. and
Xxxxxx Xxxxx & Company, LLC. A copy of such
agreement may be obtained from the Secretary of
the Company.
(ii) Upon the termination of this
Agreement pursuant to Section 5, Stockholders
shall have the right to unilaterally instruct
the transfer agent(s) and registrar(s) of the
Shares to deliver to the Stockholders
certificates representing Shares registered in
the name of the Stockholders and not bearing
the foregoing legend in exchange for
certificates representing Shares registered in
the name of the Stockholders and bearing such
legend.
c. Each Stockholder agrees to vote (or cause
to be voted) all Shares, and any other voting
securities of the Company, owned by such Stockholder
whether issued heretofore or hereafter, that such
person owns or has the right to vote, (i) against
any recapitalization, merger, consolidation, sale of
assets or other business combination or similar
transaction involving the Company or any of its
Subsidiaries, securities or assets which is not
endorsed in writing by Acquiror and (ii) any other
action or agreement that would result in a breach of
any covenant, representation or warranty or any
other obligation or agreement of the Company under
the Merger Agreement or which could result in any of
the conditions to the Company's obligations under
the Merger Agreement not being fulfilled.
d. Each Stockholder agrees not to directly or
indirectly solicit, or authorize any person to
solicit, any inquiries or proposals from any person
other than Acquiror relating to the merger or
consolidation of the Company with any person other
than Acquiror or its subsidiaries, or the
acquisition of the Company's or any of its
significant subsidiaries' voting securities by, or
the direct or indirect acquisition or disposition of
a significant amount of assets of the Company or any
of its significant subsidiaries otherwise than in
the ordinary course of business of the Company or
such significant subsidiary, from or to any person
other than Acquiror or its subsidiaries or directly
or indirectly enter into or continue any
discussions, negotiations or agreements relating to,
or vote (or cause to be voted) in favor of, any such
transaction. Nothing contained herein shall be
construed to limit or otherwise affect each
Stockholder, any Affiliate or representative of
Stockholder who shall serve as a director of the
Company from taking any action permitted by Section
4.6 or Section 4.7 of the Merger Agreement in his or
her capacity as such director.
e. Each Stockholder agrees to promptly notify
Acquiror in writing of the nature and amount of any
acquisition by Stockholder after the date hereof of
any voting securities of the Company.
Section 2. Additional Representations and
Warranties of Stockholder. Each Stockholder represents
and warrants to Acquiror as follows: Stockholder has all
necessary power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. This
Agreement has been duly executed and delivered by
Stockholder. Assuming the due authorization, execution
and delivery of this Agreement by Acquiror, this
Agreement constitutes the valid and binding agreement of
Stockholder enforceable against Stockholder in accordance
with its terms, except as may be 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. The Shares of
Stockholder are the only voting securities of the Company
owned (beneficially or of record) by Stockholder and are
owned free and clear of all liens, charges, encumbrances,
restrictions and commitments of any kind other than
shares pledged as margin stock. Other than the
Irrevocable Proxy, Stockholder has not appointed or
granted any irrevocable proxy, which appointment or grant
is still effective, with respect to the Shares. The
execution and delivery of this Agreement by Stockholder
does not (a) conflict with or violate any agreement, law,
rule, regulation, order, judgment or decision or other
instrument binding upon it, nor require any consent,
notification, regulatory filing or approval or (b) result
in any breach of or constitute a default (or an event
that with notice or lapse of time or both would become a
default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of,
or result in the creation of a lien or encumbrance on any
of the Shares owned by Stockholder pursuant to, any note,
bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or
obligation to which Stockholder is a party or by which
Stockholder or the Shares owned by Stockholder are bound
or affected. Stockholder acknowledges that the
restrictions imposed upon it are so imposed only in
Stockholder's capacity as a stockholder of the Company.
Section 3. 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 their obligations under this
Agreement. Without limiting the generality of the
foregoing, neither 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 materially impair the ability of either
party to effectuate, carry out or comply with all the
terms of this Agreement.
Section 4. Representations and Warranties of
Acquiror. Acquiror represents and warrants to the
Stockholders as follows: Each of this Agreement and the
Merger Agreement has been approved by the Board of
Directors of Acquiror. Each of this Agreement and the
Merger Agreement has been duly executed and delivered by
a duly authorized officer of Acquiror. Assuming the due
authorization, execution and delivery of this Agreement
by the Stockholders and the Merger Agreement by the
Company, each of this Agreement and the Merger Agreement
constitutes a valid and binding agreement of Acquiror,
enforceable against Acquiror in accordance with its
terms, except as may be 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.
Section 5. Effectiveness and Termination. It is a
condition precedent to the effectiveness of this
Agreement that the Merger Agreement shall have been
executed and delivered and be in full force and effect.
This Agreement shall automatically terminate and be of no
further force or effect: (i) upon the close of business
on July 31, 1998, if the Merger shall not have been
effected by such time, or (ii) upon the earlier
termination of the Merger Agreement in accordance with
its terms. Upon any termination of this Agreement,
except for any rights either party may have in respect of
any breach by either party of its obligations hereunder,
none of the parties hereto shall have any further
obligation or liability hereunder. The provisions of
Section 1 of this Agreement shall terminate and be of no
further force or effect from and after the Effective Time
of the Merger.
Section 6. Covenants of Stockholder Not to Enter
Into Inconsistent Agreements. Each Stockholder hereby
agrees that, except as contemplated by this Agreement,
the Irrevocable Proxy and the Merger Agreement, each
Stockholder shall not enter into any voting agreement or
grant an irrevocable proxy or power of attorney with
respect to the Shares which is inconsistent with this
Agreement.
Section 7. Miscellaneous.
a. Notices, Etc. All notices, requests, demands
or other communications required by or otherwise given
with respect to this Agreement shall be in writing and
shall be deemed to have been duly given to either 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 Acquiror:
c/o Code, Xxxxxxxx & Xxxxxxx LLC
Xxxxx 0000
00 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: 000-000-0000
with a copy to:
Altheimer & Xxxx
00 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx
Facsimile: 312/715-4800
If to Stockholders:
00 Xxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx, Jr.
Facsimile: _________________
with a copy to:
Xxxxxx Xxxxxx & Xxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Facsimile: 312-258-5600
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 Acquiror and Stockholder.
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 any
corporate successor by merger or otherwise.
Notwithstanding any transfer of Shares, the transferor
shall remain liable for the performance of all
obligations of the transferor under this Agreement.
d. Entire Agreement. This Agreement (together
with the Merger Agreement, the Irrevocable Proxy dated
March 11, 1998) 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, the Merger
Agreement, the Irrevocable Proxy.
e. Severability. If any term of this Agreement or
the application thereof to either 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 either party may,
in its sole discretion, apply to a court of competent
jurisdiction for specific performance or injunction 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 either party
shall not preclude the simultaneous or later exercise of
any other such rights, power or remedy by such party.
h. No Waiver. The failure of either 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 the
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. Jurisdiction. Each party hereby irrevocably
submits to the exclusive jurisdiction of the Court of
Chancery in the State of Delaware in any action, suit or
proceeding arising in connection with this Agreement, and
agrees that any such action, suit or proceeding shall be
brought only in such court (and waives any objection
based on forum non conveniens or any other objection to
venue therein) provided, however, that such consent to
jurisdiction is solely for the purpose referred to in
this paragraph (j) and shall not be deemed to be in
general submission to the jurisdiction of said Court or
in the State of Delaware other than for such purposes.
Each party hereto waives any right to a trial by jury in
connection with any such action, suit or proceeding.
k. Governing Law. This Agreement and all disputes
hereunder shall be governed by and construed and enforced
in accordance with the internal laws of the State of
Delaware without regard to principles of conflicts of
law.
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. Whenever the
context may require, any pronoun used herein shall
include the corresponding masculine, feminine or neuter
forms.
m. Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be
deemed to be an original, but all of which together shall
constitute one instrument. Each counterpart may consist
of a number of copies each signed by less than all, but
together signed by all, the parties hereto.
n. Expenses. Each party shall bear its own
expenses incurred in connection with this Agreement and
the transactions contemplated hereby.
IN WITNESS WHEREOF, the parties have duly executed
this Agreement as of the date first above written.
/s/ XXXXXX XXXXX, JR.
-----------------------------
Xxxxxx Xxxxx, Jr.
XXXXXX XXXXX & COMPANY LLC
By: /s/ XXXXXX XXXXX, JR.
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Name: Xxxxxx Xxxxx, Jr.
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