Exhibit 3
VOTING AGREEMENT
VOTING AGREEMENT, dated as of June 12, 2002 (this "Agreement") by and among
Vector Merger Corp., a New Jersey corporation ("Merger Sub"); each of Xxxx
Xxxxxx, Xxxxx Xxxxxx, as Trustee for Xxxxxxx Xxxxxx Investment Trust d/t/d
12/10/96, Xxxxx Xxxxxx, as Trustee for the Xxxxxx Xxxxxx Investment Trust d/t/d
12/10/96, Xxxxxxx Xxxxxxx, Xxxxxxx Xxxxxxx and Xxxxx Xxxxxxxx (each a
"Stockholder" and collectively, the "Stockholders"); and, for purposes of
Section 9 only, Vestcom International, Inc., a New Jersey corporation (the
"Company").
RECITALS
Merger Sub, the Company and the other parties named therein propose to
enter into an Agreement and Plan of Merger dated as of the date hereof (as the
same may be amended or supplemented, the "Merger Agreement") providing for the
merger of Merger Sub with and into the Company, in which the Company will be the
surviving entity, upon the terms and subject to the conditions set forth in the
Merger Agreement. Capitalized terms used but not defined herein shall have the
meanings set forth in the Merger Agreement as entered into on the date hereof.
As of the date hereof, the Stockholders are the record and beneficial owner
of an aggregate of 1,829,800 shares of common stock of the Company (the "Company
Common Stock"), par value $.01 per share (the "Existing Shares" and, together
with any shares of Company Common Stock acquired by the Stockholders after the
date hereof, whether upon the exercise of warrants, options or rights, the
conversion or exchange of any Existing Shares or convertible or exchangeable
securities or by means of purchase, dividend, distribution or otherwise, the
"Subject Shares").
As an inducement and a condition to entering into the Merger Agreement,
Merger Sub has required that the Company and the Stockholders agree, and the
Company and the Stockholders have agreed, to enter into this Agreement.
The Stockholders, the Company and Merger Sub desire to set forth their
agreement with respect to the voting of the Subject Shares in connection with
the Merger Agreement and the Transactions upon the terms and subject to the
conditions set forth herein.
AGREEMENT
To implement the foregoing and in consideration of the mutual agreements
contained herein, the parties agree as follows:
1. Covenants of the Stockholders. Until the termination of this Agreement
in accordance with Section 6, the Stockholders agree, severally and not jointly,
as follows:
(a) Agreement to Vote. At any meeting of the shareholders of the Company
called for purposes that include approval of the Merger Agreement, the
Transactions or any Acquisition Transaction, however called, or at any
adjournment thereof, or in connection with any written consent of the holders of
shares of Company Common Stock, or in any other circumstances in which the
Stockholders are entitled to vote, consent or give any other approval with
respect to the Merger Agreement, the Transactions or any Acquisition
Transaction, each Stockholder hereby irrevocably agrees to vote (or cause to be
voted) its Subject Shares in favor of the adoption and approval of the Merger
Agreement and the Transactions and the approval of the terms thereof and each of
the other actions contemplated by this Agreement or the Merger Agreement, and
any amendments hereto or thereto.
At any meeting of shareholders of the Company, however called, or at any
adjournment thereof, or in connection with any written consent of the holders of
shares of Company Common Stock or in any other circumstances in which the
Stockholders are entitled to vote, consent or give any other approval, except as
otherwise agreed to in writing in advance by Merger Sub, each Stockholder shall
vote (or cause to be voted) its Subject Shares against the following actions:
(i) any 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 of the Stockholders hereunder, or that
would result in any of the conditions set forth in the Merger Agreement not
being satisfied; or
(ii) any action or agreement that could reasonably be expected to
impede, interfere with, delay, postpone or attempt to discourage the Merger
and/or the other Transactions, including, but not limited to: (A) the adoption
by the Company of a proposal regarding (1) the acquisition of the Company by
merger, tender offer or otherwise by any person other than Merger Sub or any
designee thereof (a "Third Party"), or any other merger, combination or similar
transaction with any Third Party; (2) the acquisition by a Third Party of 5% or
more of the assets of the Company and its subsidiaries, taken as a whole
(whether by the acquisition of assets or securities of, or any merger,
consolidation or other business combination involving, the Company or any of its
subsidiaries); (3) the acquisition by a Third Party of 5% or more of the
outstanding shares of Company Common Stock, or (4) the repurchase by the Company
and/or any of its subsidiaries of 5% or more of the outstanding shares of
Company Common Stock; (B) any amendment of the Company's Certificate of
Incorporation or By-laws or other proposal or transaction involving the Company
or any of its subsidiaries, which amendment or other proposal or transaction
could in any manner reasonably be expected to impede, delay, prevent or nullify
the Merger, the Merger Agreement or the Transactions, or change in any manner
the rights and privileges, including, without limitation, voting rights of any
class of the Company's capital stock; (C) any change in the management or board
of directors of the Company that could in any manner reasonably be expected to
impede, delay, prevent or nullify the Merger, the Merger Agreement or the
Transactions; (D) any change in the present capitalization or dividend policy of
the Company; or (E) any other material change in the
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Company's corporate structure or business. Each Stockholder shall not commit or
agree to vote (or cause to be voted) its Subject Shares in favor of any such
action.
(b) PROXIES. AS SECURITY FOR THE AGREEMENTS OF THE STOCKHOLDERS PROVIDED
FOR HEREIN, EACH STOCKHOLDER HEREBY GRANTS TO MERGER SUB AN IRREVOCABLE PROXY TO
VOTE ITS SUBJECT SHARES AS INDICATED IN SECTION 1(a) ABOVE IN THE FORM ATTACHED
HERETO AS EXHIBIT A. THIS PROXY SHALL BE IRREVOCABLE DURING THE TERM OF THIS
AGREEMENT AND COUPLED WITH AN INTEREST AND EACH OF THE STOCKHOLDERS AND MERGER
SUB WILL TAKE SUCH FURTHER ACTION OR EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE
NECESSARY TO EFFECTUATE THE INTENT OF THIS PROXY. THE STOCKHOLDERS HEREBY REVOKE
ANY PROXY PREVIOUSLY GRANTED BY THE STOCKHOLDERS WITH RESPECT TO THE SUBJECT
SHARES.
(c) Transfer Restrictions. Each Stockholder agrees not to (i) tender
pursuant to a tender offer, (ii) otherwise sell, transfer, pledge, encumber,
assign or otherwise dispose of or hypothecate (including by operation of law, by
gift or by contribution or distribution to any trust or similar instrument or to
any beneficiaries of such Stockholder or by any other means (collectively,
"Transfer")), or enter into any contract, option or other arrangement or
understanding (whether directly or indirectly, and including any profit sharing
arrangement) with respect to the Transfer of any of its Subject Shares other
than pursuant to the terms hereof, the Merger Agreement and the Contribution
Agreement, (iii) relinquish control of the voting power with respect to its
Subject Shares, enter into any voting trust, voting arrangement or understanding
with respect to its Subject Shares, whether by proxy, voting agreement or
otherwise, or grant any proxy (except as provided in this Agreement) or (iv)
take any action that could reasonably be expected to make any of such
Stockholders' representations or warranties contained herein untrue or incorrect
or could reasonably be expected to have the effect of preventing or disabling
such Stockholder from performing any of its obligations hereunder; provided,
that any Stockholder may Transfer any of its Subject Shares to a Family Member
(as defined below) so long as such Stockholder continues to retain sole control
of the voting power with respect to the Subject Shares that are the subject of
such Transfer and such Transfer does not otherwise violate or cause a breach of
such Stockholder's obligations under the Contribution Agreement; provided,
further that, in the event of a Stockholder's death during the term of this
Agreement, the Subject Shares of such Stockholder may be Transferred in
accordance with such Stockholder's last will and testament, or if none, in
accordance with the applicable laws of interstate succession, in either of which
cases, the Subject Shares shall remain subject, in all respects, to the terms of
this Agreement and such transferee must acknowledge that he, she or it is taking
such Subject Shares subject to and that he, she or it shall be fully bound by
the terms of this Agreement applicable to such Subject Shares by executing a
joinder to this Agreement substantially in the form attached hereto as Exhibit B
and delivering such executed joinder to the Secretary of Merger Sub as soon as
reasonably practicable after such Transfer. For purposes hereof, "Family
Members" shall mean (i) such person's spouse, former spouse, descendants
(whether natural or adopted), parents and their descendants and any spouse of
the foregoing persons (collectively, "relatives"), (ii) the trustee, fiduciary
or personal representative of such person and any trust solely for the benefit
of such person and/or such person's relatives or (iii)
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any limited partnership or limited liability company the governing instruments
of which provide that such person shall have the exclusive, nontransferable
power to direct the management and policies of such entity including, without
limitation, voting and disposition of investments and of which the sole owners
of partnership interests, membership interests or any other equity interests
are, and will remain, limited to such person and such person's relatives.
Notwithstanding anything contained herein to the contrary, a Stockholder may
tender its Subject Shares pursuant to any tender offer if (x) at least a
majority of the outstanding shares of Company Common Stock has been tendered
(excluding any Subject Shares held by any Stockholder who has participated in
such tender) in connection with such tender offer and (y) such Stockholder has
not breached any provision of Section 1 or 5(b) of this Agreement in any respect
or any other provision of this Agreement in any material respect; provided,
however, that in the event that any holder of Company Common Stock withdraws
from such tender offer and as a result of such withdrawal, a majority of the
shares of Company Common Stock have no longer been tendered (excluding any
Subject Shares held by any Stockholder that have been tendered in such tender
offer) in connection with such tender offer, no Stockholder shall be permitted
to tender any of its Subject Shares in such tender offer and any Stockholder who
had already tendered any of its Subject Shares must withdraw the tender of its
Subject Shares from such tender offer until such time, if any, as the condition
described in clause (x) above has been satisfied again, so long as the condition
described in clause (y) remains satisfied and subject to this proviso.
(d) Stop Transfer. Each Stockholder hereby authorizes and requests the
Company and its counsel to notify the Company's transfer agent that there is a
stop transfer order with respect to all of its Subject Shares (and that this
Agreement places limits on the voting of the Subject Shares). Each Stockholder
shall not request that the Company register the Transfer (book-entry or
otherwise) of any certificate or uncertificated interest representing any of the
Subject Shares, unless such Transfer is made in compliance with this Agreement.
In the event of a stock dividend or distribution, or any change in the shares of
Company Common Stock by reason of any stock dividend or distribution, or any
change in the shares of Company Common Stock by reason of any stock dividend,
stock split, recapitalization, combination, exchange of shares or the like, the
term "Subject Shares" shall be deemed to refer to and include the Subject Shares
as well as all such stock dividends and distributions and any shares into which
or for which any or all of the Subject Shares may be changed or exchanged. Each
Stockholder shall be entitled to receive and retain any cash dividend paid by
the Company during the term of this Agreement until the Subject Shares are
canceled in the Merger.
(e) Appraisal Rights. EACH STOCKHOLDER HEREBY ACKNOWLEDGES THAT IT HAS NO
RIGHTS AS TO APPRAISAL, DISSENT OR ANY SIMILAR OR RELATED MATTER WITH RESPECT TO
THE MERGER OR THE OTHER TRANSACTIONS.
2. Representations and Warranties of the Stockholders. Each Stockholder
hereby severally but not jointly represents and warrants to Merger Sub as of the
date hereof as follows:
(a) No Conflict. The execution and delivery of this Agreement by such
Stockholder does not, and the consummation by such Stockholder of the
transactions
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contemplated hereby will not, (i) violate any law applicable to such Stockholder
or (ii) result in a violation or any breach of or constitute a default (or an
event which with notice or lapse of time or both would become a default) under
any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which such Stockholder is
a party, except for any such breaches or defaults which would not materially
impair the ability of such Stockholder to perform its obligations hereunder.
(b) Required Filings and Consents. The execution and delivery of this
Agreement by such Stockholder does not, and the consummation by such Stockholder
of the transactions contemplated hereby will not, require any consent, approval,
authorization or permit of, or filing with or notification to, any government or
subdivision thereof, or any administrative, governmental or regulatory
authority, agency, commission, tribunal or body, domestic, foreign or
supranational, except (i) for applicable requirements, if any, of the Exchange
Act, the Securities Act, state "blue sky" laws or takeover laws, the pre-merger
notification requirements of the HSR Act, and filings and recordation of
appropriate merger documents as required by New Jersey Law and (ii) where the
failure to obtain such other consents, approvals, authorizations or permits, or
to make such filings or notifications would not materially impair the ability of
such Stockholder to perform its obligations hereunder.
(c) Shares. The Existing Shares of such Stockholder are, and the Subject
Shares of such Stockholder as of the Effective Time will be, owned beneficially
and of record by such Stockholder. The Existing Shares and all warrants, options
or other rights to acquire any shares of Company Common Stock (including the
applicable exercise price) that are owned, of record or beneficially, by such
Stockholder are set forth opposite such Stockholder's name on Schedule 2(c)
attached hereto. The Existing Shares of such Stockholder constitute all of the
shares of Company Common Stock owned of record or beneficially by such
Stockholder as of the date hereof. All of the Existing Shares of such
Stockholder are issued and outstanding and except as set forth on Schedule 2(c)
attached hereto, such Stockholder does not own, of record or beneficially, any
warrants, options or other rights to acquire any shares of Company Common Stock.
Such Stockholder has sole voting power, sole power of disposition, sole power to
issue instructions with respect to the matters set forth in Section 1 hereof,
sole power to demand appraisal rights (to the extent such rights are available)
and sole power to agree to all of the matters set forth in this Agreement, in
each case with respect to all of his Existing Shares, and will have sole voting
power, sole power of disposition, sole power to issue instructions with respect
to the matters set forth in Section 1 hereof, sole power to demand appraisal
rights (to the extent such rights are available) and sole power to agree to all
of the matters set forth in this Agreement, in each case with respect to all of
his Subject Shares as of the Effective Time, in each case with no limitations,
qualifications or restrictions on such rights, subject to applicable federal
securities laws and the terms of this Agreement. Such Stockholder has good and
valid title to his Existing Shares and at all times during the term hereof and
on the Effective Time will have good and valid title to his Subject Shares, in
each case, free and clear of all Liens and free of any other limitation or
restriction, except pursuant to this Agreement or applicable securities laws.
There are no existing options, warrants, calls, stock appreciation right or
similar phantom equity securities with respect to the Subject Shares of such
Stockholder.
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(d) No Finder's Fees. No broker, investment banker, financial advisor or
other person is entitled to any broker's finder's, financial advisor's or other
similar fee or commission in connection with the transactions contemplated
hereby based upon arrangements made by or on behalf of such Stockholder, in his
capacity as a shareholder, for which the Company or the Surviving Corporation
shall have any liability.
3. Representations and Warranties of Merger Sub. Merger Sub hereby
represents and warrants to the Stockholders as of the date hereof as follows:
(a) Organization. Merger Sub is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation.
(b) Corporate Authorization; Validity of Agreement; Necessary Action.
Merger Sub has full corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. The execution,
delivery and performance by Merger Sub of this Agreement and the consummation by
Merger Sub of the transactions contemplated hereby have been duly and validly
authorized by its Board of Directors and no other corporate action or
proceedings on the part of Merger Sub is necessary to authorize the execution
and delivery by Merger Sub of this Agreement and the consummation by Merger Sub
of the transactions contemplated hereby. This Agreement has been duly executed
and delivered by Merger Sub, and, assuming this Agreement constitutes a valid
and binding obligation of the Stockholder, constitutes a valid and binding
obligation of Merger Sub, enforceable in accordance with its terms, subject to
the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law), an implied covenant of good faith and fair dealing and
considerations of public policy.
(c) No Conflict. The execution and delivery of this Agreement by Merger Sub
does not, and the consummation by Merger Sub of the transactions contemplated
hereby by will not (i) conflict with or violate the charter documents, By-laws
or other organizational documents of Merger Sub, (ii) conflict with or violate
any law applicable to Merger Sub, except for such conflicts or violations which
would not, individually or in the aggregate, have a Parent Material Adverse
Effect, or (iii) result in a violation or any breach of or constitute a default
(or an event which with notice or lapse of time or both would become a default)
under any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which Merger Sub is a
party or by which Merger Sub or any property or asset of Merger Sub is bound or
affected, except for any such breaches or defaults which would not materially
impair the ability of Merger Sub to consummate the transactions contemplated
hereby.
(d) Required Filings and Consents. The execution and delivery of this
Agreement by Merger Sub does not, and the consummation by Merger Sub of the
transactions contemplated hereby will not require any consent, approval,
authorization or permit of, or filing with or notification to, any government or
subdivision thereof, or any administration, governmental or regulatory
authority, agency, commission, tribunal or body, domestic, foreign or
supranational, except (i) for applicable requirements, if any, of the Exchange
Act, the Securities
6
Act, state "blue sky" laws or takeover laws, the pre-merger notification
requirements of the HSR Act, and filing and recordation of appropriate merger
documents as required by New Jersey Law, and (ii) where the failure to obtain
such other consents, approvals, authorizations, or permits, or to make such
filings or notifications would not materially impair the ability of Merger Sub
to consummate the transactions contemplated hereby.
4. Further Assurances. From time to time prior to the Effective Time, at
any other party's request and without further consideration, each party hereto
shall execute and deliver such additional documents and take all such further
lawful action as may be reasonably necessary to consummate and make effective,
as soon as reasonably practicable, the transactions contemplated by this
Agreement and the Merger Agreement.
5. Additional Covenants of the Stockholders.
(a) Filings. Each Stockholder shall furnish to Merger Sub all information
regarding such Stockholder and his Subject Shares that is required for any
application or other filing to be made pursuant to the rules and regulations of
any applicable law (including, without limitation, all information required to
be included in the Proxy Statement, a Schedule 13D filing and a Schedule 13e-3
filing, if such filings are required to be filed under the Exchange Act) in
connection with the Transactions. Each Stockholder hereby permits Merger Sub and
the Company to publish and disclose in the Proxy Statement its identity and
ownership of Existing Shares, and the terms of this Agreement.
(b) No Shop. Each Stockholder, in its capacity as a stockholder, shall not
directly or indirectly (i) solicit, initiate or encourage (or authorize any
person to solicit, initiate or encourage) any inquiry, proposal or offer from
any person to acquire any of the business, property or capital stock of the
Company or any direct or indirect subsidiary thereof, whether by merger,
purchase of assets, tender offer, consolidation, leveraged buyout or other
transaction or (ii) participate in any discussion or negotiations regarding, or
furnish to any other person any information with respect to, or assist or
otherwise cooperate in any way with, or participate in, facilitate or encourage
any effort or attempt by any other person to do or seek any of the foregoing.
6. Termination. This Agreement (other than Sections 6, 7 and 8 hereof)
shall terminate, and no party shall have any rights or obligations hereunder and
this Agreement shall become null and void and have no further effect upon the
earliest to occur of (a) the Effective Time, (b) the date the Merger Agreement
is terminated pursuant to any provision of Section 7.1 (other than Sections
7.1(b)(iii), 7.1(c), 7.1(d) or 7.1(e) thereof), or (c) six months (the "Tail")
following the date that the Merger Agreement is terminated pursuant to Sections
7.1(b)(iii), 7.1(c), 7.1(d) or 7.1(e) thereof; provided, that during the Tail,
none of the provisions of this Agreement (other than Sections 1, 5(b), 6, 7 and
8 hereof) shall have any force or effect; provided, further, that during the
Tail, notwithstanding anything contained in Section 1(c) to the contrary, any
Stockholder may (i) Transfer, free of any of the requirements of this Agreement,
a number of its Subject Shares, up to the greater of (x) 15% of the Subject
Shares held by such Stockholder as of the date hereof or (y) 10,000 shares of
Company Common Stock and (ii) Transfer any and all other Subject Shares (subject
to the requirements of this Agreement),
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provided the proposed transferee of such shares must agree to take such shares
subject to, and to be fully bound by, the terms of this Agreement by executing a
joinder to this Agreement substantially in the form attached hereto as Exhibit B
and delivering such executed joinder to the Secretary of Merger Sub as soon as
reasonably practicable after such Transfer. Notwithstanding anything contained
herein to the contrary, nothing in this Section 6 shall relieve any party of
liability for breach of this Agreement.
7. Capture.
(a) In the event that the transactions contemplated by the Merger Agreement
are not consummated due to a breach of this Agreement by any Stockholder and any
Subject Shares of a Stockholder are sold, transferred, exchanged, canceled or
disposed of in connection with or as a result of any Acquisition Transaction by
a Third Party which is executed or consummated within twelve (12) months
following the date that the Merger Agreement is terminated (an "Alternative
Disposition") then, in lieu of any remedies at law, but in addition to the
remedies at equity for breach of this Agreement (including, without limitation,
specific performance and injunctive relief but excluding additional money
damages), on the closing of such Alternative Disposition, such Stockholders
shall tender and pay to, or shall cause to be tendered and paid to, Cornerstone
(or its designee), in immediately available funds, all of the Profit (as defined
below) realized by such Stockholders from such Alternative Disposition. Subject
to Section 7(b), "Profit" shall mean an amount equal to the excess, if any, of
(i) the Alternative Transaction Consideration (as defined below) over (ii) the
Current Transaction Consideration (as defined below). If the Alternative
Transaction Consideration includes any consideration other than cash, such
Stockholders may, if not prohibited from transferring any such consideration to
Cornerstone (or its designee), transfer, in lieu of cash, a pro rata portion
(based on the proportion of the non-cash consideration to the aggregate
consideration) of the Profit represented by such other forms of consideration.
"Alternative Transaction Consideration" shall mean all cash, securities,
settlement or termination amounts, notes or other debt instruments, and other
consideration received or to be received, directly or indirectly, by such
Stockholders and their affiliates in connection with or as a result of such
Alternative Disposition or any agreements or arrangements (including, without
limitation, any employment agreement (except a bona fide employment agreement
pursuant to which a Stockholder is required to devote, and under which such
Stockholder in good faith intends to devote, substantially all of his business
time and effort to the performance of executive services for the Company in a
manner substantially similar to such Stockholder's current employment
arrangements with the Company), consulting agreement, non-competition agreement,
confidentiality agreement, settlement agreement or release agreement) entered
into, directly or indirectly, by such Stockholders or any of their affiliates as
a part of, or in connection with, the Alternative Disposition or the associated
Acquisition Transaction. "Current Transaction Consideration" shall mean all
amounts to be received, directly or indirectly, by such Stockholders pursuant to
Article I of the Merger Agreement as such Article I may be amended from time to
time.
(b) For purposes of determining Profits under this Section 7: (i) all
securities that are publicly traded within the United States (which shall not
include any securities to the extent that they may not be freely sold within the
three month period following the closing of the transaction under Rule 145 under
the Securities Act or any similar regulation) shall be valued at
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the average of the closing prices for the five trading days ending on the date
on which the Alternative Disposition closes; (ii) all other non-cash items shall
be valued based upon the fair market value thereof as of the date of closing of
the Alternative Disposition as determined by an independent expert selected by
Cornerstone and who is reasonably acceptable to such Stockholder; (iii) all
deferred payments or consideration shall be discounted to reflect a market rate
of net present value thereof as determined by the above-referenced independent
expert; and (iv) if less than all of a Stockholder's Subject Shares are subject
to the Alternative Disposition, the Current Transaction Consideration shall be
deemed to be an amount equal to the Current Transaction Consideration multiplied
by a fraction, the numerator of which is the number of such Stockholder's
Subject Shares sold, transferred, exchanged, canceled or disposed of in such
Alternative Disposition and the denominator of which is the total number of such
Stockholder's Subject Shares. In the event any contingent payments are included
in the consideration for the Alternative Disposition, upon receipt of any such
contingent payment, such Stockholder will promptly transfer to Cornerstone any
additional amounts that would have been transferred to Cornerstone upon the
completion of the Alternative Disposition if such contingent payment had been
received at such time.
8. Expenses. In the event that the Merger is consummated pursuant to the
Merger Agreement, all reasonable legal fees and reasonable out-of-pocket
expenses incurred by the Stockholders in connection with the negotiation of this
Agreement shall be borne by the Surviving Corporation. In the event that the
Merger is not consummated for any reason, Merger Sub shall have no
responsibility for any fees or expenses incurred by the Stockholders.
9. Legend. All of the Subject Shares of each Stockholder shall be
represented by certificates that bear the following legend (and the Company
hereby agrees to issue all certificates for such Subject Shares with such
legend):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
OBLIGATIONS AND RESTRICTIONS STATED IN, AND ARE TRANSFERABLE ONLY IN
ACCORDANCE WITH, THE PROVISIONS OF A VOTING AGREEMENT AND IRREVOCABLE
PROXY, DATED AS OF JUNE __, 2002 (THE "AGREEMENT"). A COPY OF THE AGREEMENT
MAY BE OBTAINED FROM THE CORPORATION FREE OF CHARGE. THE TERMS AND
CONDITIONS OF THE AGREEMENT ARE HEREBY INCORPORATED INTO THIS CERTIFICATE
BY REFERENCE. BY ACCEPTANCE HEREOF, THE HOLDER OF THIS CERTIFICATE AGREES
TO COMPLY IN ALL RESPECTS WITH THE REQUIREMENTS OF THE AGREEMENT.
10. General Provisions.
(a) Amendment. This Agreement may not be amended, modified or supplemented
except by an instrument in writing signed by the party to be charged therewith.
(b) Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, telecopied (which is
confirmed) or
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sent by overnight courier (providing proof of delivery) to the parties at the
following addresses (or at such other addresses for a party as shall be
specified by like notice):
(i) if to Merger Sub:
c/o Cornerstone Equity Investors LLC
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx X'Xxxxx
Xxxxxxx Xxxxxx
with copies (which shall not constitute notice) to:
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxxxx Xxxxx, Esq.
(ii) if to the Company, to:
Vestcom International, Inc.
0 Xxxxxxxxx Xxxxx
Xxxx Xxxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxxxxx Xxxxxxx PC
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
(iii) if to the Stockholders, to:
Xxxx Xxxxxx
0 Xxxxxxxxx Xxxxx
Xxxx Xxxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
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(c) Interpretation. Whenever the words "include," "includes" or "including"
are used in this Agreement they shall be deemed to be followed by the words
"without limitation." The phrases "the date of this Agreement," "the date
hereof," and terms of similar import, unless the context otherwise requires,
shall be deemed to refer to June 12, 2002.
(d) Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
(e) Entire Agreement; No Third Party Beneficiaries. This Agreement
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof, and is not intended to confer upon any person other than
the parties hereto any rights or remedies hereunder.
(f) Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect 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 that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the transactions contemplated hereby may be consummated as originally
contemplated to the fullest extent possible.
(g) Assignment. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto (whether by
operation of law or otherwise) without the prior written consent of the other
parties, except that Merger Sub may assign, in Merger Sub's sole discretion, any
or all of their respective rights, interests and obligations hereunder to any
affiliate of Merger Sub (including Cornerstone and its affiliates). Subject to
the preceding sentence, this Agreement will be binding upon, inure to the
benefit of and be enforceable by the parties and their respective successors,
heirs, agents, representatives, trust beneficiaries, attorneys, affiliates and
associates and all of their respective predecessors, successors, permitted
assigns, heirs, executors and administrators.
(h) Enforcement; Governing Law; Jurisdiction; Waiver of Jury Trial.
(i) The parties hereto agree that irreparable damage would occur in the
event any provision of this Agreement was not performed in accordance with the
terms hereof and that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to specific performance of
the terms hereof, in addition to any other remedy at law or in equity (except as
otherwise provided in Section 7).
(ii) The provisions of this Agreement shall be governed by and
construed in accordance with the laws of the State of New Jersey (excluding any
conflict of law rule or principle that would refer to the laws of another
jurisdiction). Each of the Stockholders,
11
the Company and Merger Sub hereto irrevocably and unconditionally consents to
submit to the exclusive jurisdiction of the courts of the State of New Jersey
and of the United States of America located in the State of New Jersey (the "New
Jersey Courts") in any action or proceeding arising out of or relating to this
Agreement (and agrees not to commence any litigation relating thereto except in
such courts), waives any objection to the laying of venue of any such litigation
in the New Jersey Courts and agrees not to plead or claim in any New Jersey
Court that such litigation brought therein has been brought in an inconvenient
forum. Each of the Stockholders, the Company and Merger Sub irrevocably
appoints, to the extent that such party is not a resident of the State of New
Jersey, Corporate Service Company, 000 Xxxx Xxxxxx Xxxx, Xxxx Xxxxxxx, Xxx
Xxxxxx 00000 as its agent in the State of New Jersey for acceptance of legal
process in connection with any such action or proceeding against such party with
the same legal force and validity as if served upon such party personally within
the State of New Jersey. EACH PARTY HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO
SO, TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING ARISING HEREUNDER.
(i) Stockholder Capacity. No person executing this Agreement who is or
becomes during the term of this Agreement a member of the Board of Directors of
the Company makes any agreement in his capacity as a member of the Board of
Directors. Each Stockholder is executing and delivering this Agreement solely in
Stockholder's capacity as the record and beneficial owner of the Stockholder's
Subject Shares.
(j) Obligations Several. Notwithstanding anything contained herein to the
contrary, the obligations of the Stockholders hereunder shall be several and not
joint, and as any Stockholder's obligations pertain to any Subject Shares, such
obligations shall pertain solely to the Subject Shares that are owned of record
and beneficially by such Stockholder.
* * * * *
12
IN WITNESS WHEREOF, Merger Sub, the Company and the Stockholders have
caused this Agreement to be executed as of the date first written above.
VECTOR MERGER CORP.
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Secretary
STOCKHOLDERS
/s/ Xxxx Xxxxxx
----------------------------------------
Xxxx Xxxxxx
/s/ Xxxxxxx Xxxxxxx
----------------------------------------
Xxxxxxx Xxxxxxx
/s/ Xxxxxxx Xxxxxxx
----------------------------------------
Xxxxxxx Xxxxxxx
/s/ Xxxxx Xxxxxxxx
----------------------------------------
Xxxxx Xxxxxxxx
XXXXX XXXXXX, as Trustee for
XXXXXXX XXXXXX INVESTMENT TRUST D/T/D
12/10/96
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Trustee
XXXXX XXXXXX, as Trustee for
XXXXXX XXXXXX INVESTMENT TRUST D/T/D
12/10/96
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Trustee
FOR PURPOSES OF SECTION 9 ONLY:
VESTCOM INTERNATIONAL, INC.
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Chief Executive Officer, President and
Chief Operating Officer
SCHEDULE 2(c)
--------------------------------------------------------------------------------------------------------
Existing Shares Owned by Options Owned by
Name of Stockholder Stockholder Stockholder
--------------------------------------------------------------------------------------------------------
Xxxx Xxxxxx 1,346,500 0
--------------------------------------------------------------------------------------------------------
Xxxxx Xxxxxx, as Trustee for
Xxxxxxx Xxxxxx Investment Trust d/t/d/ 12/10/96 100,000 0
--------------------------------------------------------------------------------------------------------
Xxxxx Xxxxxx, as Trustee for
Xxxxxx Xxxxxx Investment Trust d/t/d/ 12/10/96 100,000 0
--------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxxxx 77,800 195,000
--------------------------------------------------------------------------------------------------------
Xxxxx Xxxxxxxx 192,500 70,000
--------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxxxx 13,000 70,000
------ ------
--------------------------------------------------------------------------------------------------------
Total 1,829,800 335,000
--------------------------------------------------------------------------------------------------------
EXHIBIT A
FORM OF IRREVOCABLE PROXY
By its execution hereof, and in order to secure its obligations under the
Voting Agreement (the "Agreement") of even date herewith among Vector Merger
Corp., a New Jersey corporation ("Merger Sub"), the undersigned (the
"Stockholder") and, for purposes of Section 9 only, Vestcom International, Inc.,
Stockholder hereby irrevocably constitutes and appoints Merger Sub and its
successors and assigns, with full power of substitution and resubstitution, from
the date hereof to the termination of the Agreement, as Stockholder's true and
lawful attorney and proxy (its "Proxy"), for and in Stockholder's name, place
and stead to vote the Subject Shares of Stockholder as Stockholder's Proxy at
every annual, special or adjourned meeting of shareholders of the Company, and
to sign on behalf of Stockholder (as a shareholder of the Company) any ballot,
proxy, consent, certificate or other document relating to the Company that law
permits or requires, in a manner consistent with the Agreement. This Proxy is
coupled with interest and Stockholder intends this Proxy to be irrevocable to
the fullest extent permitted by law. Stockholder hereby revokes any proxy
previously granted by Stockholder with respect to his Subject Shares. This Proxy
will terminate, and by of no further force and effect, at the time and under the
circumstances that the Agreement terminates. Capitalized terms used but not
defined herein shall have the meaning set forth in the Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Irrevocable Proxy
this 12th day of June, 2002.
STOCKHOLDER:
----------------------------------------
EXHIBIT B
FORM OF JOINDER TO
VOTING AGREEMENT
THIS JOINDER to the Voting Agreement (the "Agreement"), dated as of June
12, 2002 (this "Agreement") by and among Vector Merger Corp., a New Jersey
corporation ("Merger Sub"); each of Xxxx Xxxxxx, Xxxxx Xxxxxx, as Trustee for
Xxxxxxx Xxxxxx Investment Trust d/t/d 12/10/96, Xxxxx Xxxxxx, as Trustee for the
Xxxxxx Xxxxxx Investment Trust d/t/d 12/10/96, Xxxxxxx Xxxxxxx, Xxxxxxx Xxxxxxx
and Xxxxx Xxxxxxxx; and, for purposes of Section 9 only, Vestcom International,
Inc., a New Jersey corporation, is made and entered into as of __________ by and
between Merger Sub and _____________ ("Holder"). Capitalized terms used herein
but not otherwise defined shall have the meanings set forth in the Agreement.
WHEREAS, Holder has acquired certain Subject Shares and the Agreement and
Merger Sub require Holder, as a holder of such Subject Shares, to become a party
to the Agreement, and Holder agrees to do so in accordance with the terms
hereof.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties to this Joinder hereby agree as follows:
1. Agreement to be Bound. Holder hereby agrees that upon execution of this
Joinder, if shall become a party to the Agreement and shall be fully bound by,
and subject to, all the covenants, terms and conditions of this Agreement as
though an original party thereto and shall be deemed a Stockholder for all
purposes thereof. In addition, Holder hereby agrees that all shares of Company
Common Stock held by Holder shall be deemed Subject Shares for all purposes of
this Agreement.
2. Successors and Assigns. Except as otherwise provided herein, this
Joinder shall bind the inure to the benefit of and be enforceable by Merger Sub
and its successors, heirs and assigns and Holder and any subsequent holder of
Subject Shares and the respective successors, heirs and assigns of each of them,
so long as they hold any Subject Shares.
3. Counterparts. This Joinder may be executed in separate counterparts each
of which shall be an original and all of which taken together shall constitute
one and the same agreement.
4. Notices. For purposes of Section 10(b) of the Agreement, all notices,
demands or other communications to the Holder shall be directed to:
[Name]
[Address]
[Facsimile Number]
5. Governing Law. This Joinder shall be governed by and construed in
accordance with the laws of the State of New Jersey, without giving effect in
any rules, principles or provisions of choice of law or conflict of laws.
6. Descriptive Headings. The descriptive headings of this Joinder are
inserted for convenience only and do not constitute a part of this Joinder.
* * * * *
IN WITNESS WHEREOF, the parties hereto have executed this Joinder as of the
date first above written.
VECTOR MERGER CORP.
By:
------------------------------------
Name:
Title:
[HOLDER]
By:
------------------------------------
Name:
Title:
