EXHIBIT 1
VOTING AGREEMENT
AGREEMENT, dated as of October 20, 1997, between Terbem Limited,
Tinvest Limited, Teribe Limited, TCR International Partners, L.P., Mitvest
Limited and Bobst Investment Corp. (collectively, the "TCR Group," and each
individually, a "TCR Group Member") and Xxxxxx Metalcraft Holding Co., a
Delaware Corporation ("Xxxxxx Metalcraft").
WHEREAS, Xxxxxx Metalcraft and MLX Corp., a Georgia corporation (the
"Company"), have entered into an Agreement and Plan of Merger, dated as of the
date hereof (the "Merger Agreement") pursuant to which Xxxxxx Metalcraft will be
merged with and into the Company (the "Merger"), with the Company being the
surviving corporation;
WHEREAS, in connection with the Merger Agreement the Company is
required to solicit the approval of its shareholders with respect to certain
matters, including the Recapitalization, the Merger and the 1997 Stock Plan;
WHEREAS, each TCR Group Member is the record and Beneficial Owner of,
and has the right to vote and dispose of, the number of Owned Shares set forth
on the signature page hereto;
WHEREAS, to induce Xxxxxx Metalcraft to enter into the Merger
Agreement, the TCR Group has agreed to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual promises,
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound hereby, agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
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shall have the meanings set forth below:
"Affiliate" means, with respect to any specified Person, any other Person
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that directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, the Person specified.
"Beneficially Owned" or "Beneficial Ownership" or "Beneficial Owner" with
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respect to any securities means having beneficial ownership of such securities
(as determined to Rule 13d-3 under the Exchange Act), including pursuant to any
agreement, arrangement or understanding, whether or not in writing. Without
duplicative counting of the same securities by the same holder, securities
Beneficially Owned by a Person shall include securities Beneficially Owned by
all Affiliates of such Person.
"Common Stock" means the shares of common stock, par value $.01, of the
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Company.
"Merger" shall have the meaning set forth in the recitals to this
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Agreement.
"Merger Agreement" shall have the meaning set forth in the recitals to this
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Agreement.
"Owned Shares" means the shares of Common Stock Beneficially Owned by each
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TCR Group Member on the date hereof, together with any other shares of Common
Stock, or any other securities of the Company entitled, or which may be
entitled, to vote generally in the election of directors and any other shares of
Common Stock or such other securities which may hereafter be Beneficially Owned
by each TCR Group Member (including upon exercises of options or otherwise).
"Person" means an individual, corporation, partnership, joint venture,
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association, trust, unincorporated organization or other entity.
"Recapitalization" means the recapitalization of the Company as
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contemplated by Sections 4.4 and 5.10 of the Merger Agreement.
"transfer" means, with respect to a security, the sale, transfer, pledge,
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hypothecation, encumbrance, assignment or disposition of such security of the
Beneficial Ownership thereof, the offer to make such a sale, transfer or other
disposition, and each option, agreement, arrangement or understanding, whether
or not in writing, to effect any of the foregoing. As a verb, transfer shall
have a correlative meaning.
"Voting Period" shall have the meaning set forth in Section 2 of this
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Agreement.
"1997 Stock Plan" means the 1997 Stock Option Plan whereby a maximum of
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1,166,896 shares of Class A Common Stock, par value $.01 per share, of the
Company are authorized to be delivered to certain officers, other key employees,
directors and consultants of the Company
2. Voting of Owned Shares; Other Covenants. The TCR Group hereby agrees
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that during the period commencing on the date hereof and continuing until the
earlier of (x) the consummation of the Merger and (y) the termination of this
Agreement (such period being referred to as the "Voting Period"), at any meeting
(whether annual or special, and whether or not an adjourned or postponed
meeting) of the Company's stockholders, however called, or in connection with
any written consent of the Company's stockholders, subject to the absence of a
preliminary or permanent injunction or other requirement under applicable law
by any United States federal, state or foreign court barring such action, the
TCR Group shall vote (or cause to be voted) all Owned Shares: (i) in favor of
the Merger, the execution and delivery by the Company of the Merger Agreement,
and the approval and adoption of the Merger and the terms thereof and each of
the other actions contemplated by the Merger Agreement and this agreement and
any actions required in furtherance thereof and hereof; (ii) in favor of the
approval and adoption of the Recapitalization and each of the other actions
contemplated by the Recapitalization and any actions required in furtherance
thereof; and (iii) in favor of the approval and adoption of the 1997 Stock Plan
and the terms thereof and each of the other actions contemplated by the 1997
Stock Plan and any actions required in furtherance thereof; and (iv) against any
action or agreement that would impede, interfere with, or prevent the Merger,
the Recapitalization or the 1997 Stock Plan; and (v) except as otherwise agreed
to in writing in advance by Xxxxxx Metalcraft, against the following actions
(other than the Merger, the Recapitalization and the 1997 Stock Plan and the
transactions contemplated by the Merger Agreement, the Recapitalization, the
1997 Stock Plan and
this Agreement): (I) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving the Company or any of its
subsidiaries; (II) any sale, lease or transfer of a material amount of the
assets or business of the Company or its subsidiaries, or any reorganization,
restructuring, recapitalization, special dividend, dissolution, liquidation or
winding up of the Company or its subsidiaries; (III) any change in the present
capitalization of the Company including any proposal to sell any material equity
interest in the Company or any amendment of the certificate of incorporation of
the Company and (IV) an election of new members of the Board of Directors of the
Company except where the vote is cast in favor of the nominees of a majority of
the existing directors of the Company. No TCR Group Member shall enter into any
agreement, arrangement or understanding with any Person the effect of which
would be inconsistent or violative of the provisions and agreements contained in
this Section 2 and no TCR Group Member shall transfer any Owned Shares during
the terms of this Agreement.
3. Representations and Warranties of the TCR Group. The TCR Group hereby
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jointly and severally represents and warrants to Xxxxxx Metalcraft as follows:
(a) Each TCR Group Member has all necessary power and authority and
legal capacity to execute and deliver this Agreement and perform its obligations
hereunder. No other proceedings or actions on the part of any TCR Group Member
are necessary to authorize the execution, delivery or performance of this
Agreement or the consummation of the transactions contemplated hereby.
(b) This Agreement has been duly and validly executed and delivered
by each TCR Group Member and constitutes the valid and binding agreement of each
TCR Group Member, enforceable against each TCR Group Member in accordance with
its terms except (i) to the extent limited by applicable bankruptcy, insolvency
or similar laws affecting creditors' rights and (ii) to the extent subject to
equitable defenses and the discretion of the court before which any action for
specific performance or injunctive relief may be brought.
(c) Each TCR Group Member is the recordholder and Beneficial Owner of
the number of Owned Shares which, as of the date hereof, is set forth below each
TCR Group Member's signature on the signature page hereto. Each TCR Group Member
has good and marketable title to all of the Owned Shares of which it is the
recordholder and Beneficial Owner, free and clear of all liens, claims, options,
proxies, voting agreements (other than this Agreement), security interests,
charges and encumbrances. The Owned Shares constitute all of the capital stock
of the Company Beneficially Owned by the TCR Group Members, and except for the
Owned Shares and shares of Common Stock issuable upon exercise of options held
by the TCR Group Members, no TCR Group Member or any of its Affiliates
Beneficially Owns or has any right to acquire (whether currently, upon lapse of
time, following the satisfaction of any conditions, upon the occurrence of any
event or any combination of the foregoing) any shares of Common Stock or any
securities convertible into Common Stock.
(d) The TCR Group understands and acknowledges that the TCR Group's
execution and delivery of this Agreement acts as an inducement to
Xxxxxx Metalcraft's entering into the Merger Agreement and incurring the
obligations set forth therein.
(e) None of the execution and delivery of this Agreement by the TCR
Group, the consummation by the TCR Group of the transactions contemplated hereby
or compliance by the TCR Group with any of the provisions hereof shall (A)
conflict with or result in any breach of the certificate of incorporation or
by-laws of the Company, or (B) result in a violation or breach of or constitute
(with or without notice or lapse of time or both) a default (or give rise to any
third party right of termination, cancellation, material modification or
acceleration) under any of the terms, conditions, or provisions of any note,
loan agreement, bond, mortgage, indenture, license, contract, commitment,
arrangement, understanding, agreement or other instrument or obligation of any
kind to which any TCR Group Member is a party or by which any TCR Group Member
or any of its properties or assets may be bound, or violate any order, writ,
injunction, decree, judgment, statute, rule or regulation applicable to any TCR
Group Member or any of its properties or assets.
4. Representations and Warranties of Xxxxxx Metalcraft. Xxxxxx Metalcraft
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hereby represents, warrants and covenants to the TCR Group as follows:
(a) Xxxxxx Metalcraft is a corporation duly organized and validly
existing under the laws of its jurisdiction of incorporation, and is in good
standing under the laws of its jurisdiction of incorporation. Xxxxxx Metalcraft
has all necessary corporate power and authority to execute and deliver this
Agreement and perform its respective obligations hereunder. The execution and
delivery by Xxxxxx
Metalcraft of this Agreement and the performance of its obligations hereunder
have been duly and validly authorized by the Board of Directors of Xxxxxx
Metalcraft and no other corporate proceedings on the part of Xxxxxx Metalcraft
are necessary to authorize the execution, delivery or performance of this
Agreement or the consummation of the transactions contemplated hereby.
(b) This Agreement has been duly and validly executed and delivered
by Xxxxxx Metalcraft and constitutes a valid and binding agreement of Xxxxxx
Metalcraft, enforceable against it in accordance with its terms except (i) to
the extent limited by applicable bankruptcy, insolvency or similar laws
affecting creditors' rights and (ii) to the extent subject to equitable defenses
and to the discretion of the court before which any proceeding for specific
performance or equitable relief may be brought.
(c) None of the execution and delivery of this Agreement by Xxxxxx
Metalcraft, the consummation by Xxxxxx Metalcraft of the transactions
contemplated hereby or compliance by Xxxxxx Metalcraft with any of the
provisions hereof shall (A) conflict with or result in any breach of the
certificate of incorporation or by-laws of Xxxxxx Metalcraft or (B) result in a
violation or breach of, or constitute (with or without notice or lapse of time
or both) a default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under any of the terms,
conditions or provisions of any note, loan agreement, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding, agreement
or other instrument or obligation of any kind to which Xxxxxx Metalcraft is a
party or by which Xxxxxx Metalcraft or any of its respective properties or
assets
may be bound, or violate any order, writ, injunction, decree, judgment, statute,
rule or regulation applicable to Xxxxxx Metalcraft or any of its respective
properties or assets.
5. Further Assurances. From time to time, at the other party's request
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and without further consideration, each party hereto shall execute and deliver
such additional documents and take all such further lawful action as may be
necessary or desirable to consummate and make effective, in the most expeditious
manner practicable, the transactions contemplated by this Agreement.
6. Termination. This Agreement, and all rights and obligations of the
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parties hereunder, shall terminate upon the earliest of (a) the date on which
the Merger Agreement is terminated pursuant to Section 8.1 of the Merger
Agreement; (b) January 30, 1998 and (c) by mutual written consent of the TCR
Group and Xxxxxx Metalcraft.
7. Miscellaneous.
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(a) This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes all other prior
agreements and understandings, both written and oral, between the parties with
respect to the subject matter hereof.
(b) The TCR Group agrees that this Agreement and the respective
rights and obligations of each TCR Group Member hereunder shall attach to any
shares of Common Stock, and any securities convertible into such shares, that
may become Beneficially Owned by such TCR Group Member or any of its Affiliates.
(c) Except as otherwise provided in this Agreement and the Merger
Agreement, all costs and expenses incurred in connection with this Agreement and
the transactions contemplated hereby shall be paid by the party incurring such
expenses.
(d) This Agreement and all of the provisions hereof shall be binding
upon and inure to the benefit of the parties and their respective successors,
personal or legal representatives, executors administrators, heirs,
distributees, devisees, legatees and permitted assigns, but neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by either party (whether by operation of law or otherwise) without the
prior written consent of the other party. Nothing in this Agreement, express or
implied, is intended to or shall confer upon any other Person any rights,
benefits or remedies of any nature whatsoever under or by reason of this
Agreement.
(e) This Agreement may not be amended, changed, supplemented, or
otherwise modified or terminated, except upon the execution and delivery of a
written agreement executed by each of the parties hereto. The parties may waive
compliance by the other parties hereto with respect to any representation,
agreement or condition otherwise required to be complied with by such other
party hereunder, but any such waiver, shall be effective only if in writing
executed by the waiving party.
(f) All notices and other communications hereunder shall be in
writing and shall be deemed given upon (a) transmitter's confirmation of a
receipt of a facsimile transmission, (b) confirmed delivery by a standard
overnight carrier or
when delivered by hand or (c) the expiration of five business days after the day
when mailed by certified or registered mail, postage prepaid, addressed at the
address for such party set forth below
If to the TCR Group:
Three Cities Research, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: W. Xxxxxx Xxxxxx
Telecopy: (000)000-0000
Copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopy: (000)000-0000
Attn: Xxxxxx X. Xxxxx, Esq.
If to Xxxxxx Metalcraft:
Xxxxxx Metalcraft Holding Co.
0000 Xxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telecopy: (000)000-0000
Copy to:
Husch & Eppenberger
000 X.X. Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxx X Xxxxxxxx, Esq.
Telecopy: (000)000-0000
or to such other address or facsimile number as the Person to whom notice is
given shall have previously furnished to the others in writing in the manner set
forth above.
(g) Each of the parties hereto acknowledges and agrees that in the
event of any breach of this Agreement, each non-breaching party would be
irreparably and immediately harmed and could not be made whole by monetary
damages. It is accordingly agreed that the parties hereto (a) will waive, in any
action for specific performance, the defense of adequacy of a remedy at law and
(b) shall be entitled, in addition to any other remedy to which they may be
entitled at law or in equity, to compel specific performance of this Agreement.
(h) 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 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. 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) This agreement shall be governed and construed in accordance with
the laws of the State of Delaware, without giving effect to the principles of
conflicts of law thereof or of any other jurisdiction.
(j) The descriptive headings used herein are inserted for convenience
of reference only and are not intended to be part of or to affect the meaning or
interpretation of this Agreement. "Include," "includes," and "including"
shall be deemed to be followed by "without limitation" whether or not they are
in fact followed by such words or words of like import.
(k) This Agreement may be executed in counterparts, each of which
shall be deemed to be an original, but all of which, taken together, shall
constitute one and the same instrument.
In WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
XXXXXX METALCRAFT HOLDING CO.
By: _________________________
Name: Xxxxxxx X. Xxxxxx
Title: President & Chief Executive
Officer
TERBEM LIMITED
By: _________________________
Name:
Title:
Owned Shares:
TINVEST LIMITED
By: _________________________
Name:
Title:
Owned Shares:
TERIBE LIMITED
By: _________________________
Name:
Title:
Owned Shares:
TCR INTERNATIONAL PARTNERS, LP
By: Three Cities Research, Inc.
its general partner
By: _________________________
Name:
Title:
Owned Shares
MITVEST LIMITED
By: _________________________
Name:
Title:
Owned Shares:
BOBST INVESTMENT CORP.
By: _________________________
Name:
Title:
Owned Shares:
