EXECUTION COPY
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CPI VOTING AGREEMENT
by and between
CPI DEVELOPMENT CORPORATION,
ARMKEL, LLC
and
MCC ACQUISITION HOLDINGS CORPORATION
Dated: May 7, 2001
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CPI VOTING AGREEMENT
This CPI Voting Agreement is made and entered into as of May 7, 2001
(this "Agreement"), by and among MCC Acquisition Holdings Corporation, a
Delaware corporation ("Buyer"), Armkel, LLC, a Delaware limited liability
company ("Assets Buyer") and CPI Development Corporation, a Delaware
corporation ("CPI") (each, a "Party" and, collectively, the "Parties").
RECITALS
WHEREAS, concurrently with the execution and delivery of this Agreement,
Xxxxxx-Xxxxxxx Inc., a Delaware corporation (the "Company"), CPI, Buyer, MCC
Merger Sub Corporation, a Delaware corporation and a wholly owned subsidiary
of Buyer ("Company Merger Sub"), and MCC Acquisition Sub Corporation, a
Delaware corporation and a wholly owned subsidiary of Buyer ("CPI Merger
Sub"), have executed and delivered an Agreement and Plan of Merger, dated as
of the date hereof (the "Merger Agreement"), providing for, among other
things, the merger of CPI Merger Sub with and into CPI (the "CPI Merger") and
the merger of Company Merger Sub with and into the Company (the "Company
Merger") which Merger Agreement has been unanimously approved by the Boards of
Directors of the Company, Buyer, Company Merger Sub and CPI Merger Sub;
WHEREAS, concurrently with the execution and delivery of this Agreement,
the Company and Assets Buyer have executed and delivered an Asset Purchase
Agreement, dated as of May 7, 2001 (including the exhibits, schedules and
annexes thereto, the "Asset Purchase Agreement"), providing for, among other
things, the sale, conveyance, transfer, assignment and delivery to Assets
Buyer of all of the Company's and its affiliates' rights, title and interest
in and to the Purchased Assets (as defined in the Asset Purchase Agreement;
such sales, transfers, assignments, purchases, acceptances, and assumptions
collectively, the "Assets Purchase") which Asset Purchase Agreement has been
unanimously approved by the Board of Directors of the Company and the Assets
Buyer;
WHEREAS, CPI is the record owner of 11,754,000 shares of Common Stock,
par value $1.00 per share, of the Company (each a "Common Share"), and
11,754,000 shares of Class B Common Stock, par value $1.00 per share, of the
Company (each a "Class B Common Share"); and
WHEREAS, as a condition to entering into the Merger Agreement and the
Asset Purchase Agreement, Buyer and Assets Buyer have required that CPI agree,
and, in order to induce Assets Buyer, Buyer, Company Merger Sub and CPI Merger
Sub to enter into the Merger Agreement and the Asset Purchase Agreement, CPI
has agreed to enter into this Agreement relating to the voting of the Company
Shares in connection with the Company Merger and the Assets Purchase.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained and for other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the
Parties, intending to be legally bound, hereby agree as follows:
1. Certain Definitions. Except as specified herein, capitalized terms
used in this Agreement shall have the meanings assigned to such terms in the
Merger Agreement as originally executed and delivered. If any definitions in
the Merger Agreement have been amended, such amendment shall only be given
effect for purposes of this agreement if and only if a corresponding change
has been made to the Asset Purchase Agreement.
2. Agreement to Vote
(a) Voting. CPI hereby agrees to vote (or cause to be voted), 11,750,000
Common Shares and 11,750,000 Class B Common Shares (collectively, the "Company
Shares") owned by CPI (and any and all securities issued or issuable in
respect thereof), at any annual, special or other meeting of the stockholders
of the Company, and at any adjournment or adjournments thereof:
(i) in favor of the approval of the Company Merger and the other
transactions contemplated by the Merger Agreement (including the
transactions pursuant to the Asset Purchase Agreement) and in favor of
the approval and adoption of the Merger Agreement, and all actions required in
furtherance thereof;
(ii) in favor of the approval of the Assets Purchase and the other
transactions contemplated by the Asset Purchase Agreement and all actions
required in furtherance thereof;
(iii) against any Acquisition Proposal (other than (A) the Company
Merger and the Assets Purchase, (B) any Substitute Merger Agreement (as
defined in the Asset Purchase Agreement) and the transactions
contemplated thereby (the "Substitute Merger") and (C) any Substitute APA
and the transactions contemplated thereby (the "Substitute Asset Purchase");
and
(iv) against any amendment of the Company's Certificate of
Incorporation or Bylaws which amendment would in any manner prevent or
materially impede, interfere with or delay the Company Merger, the Merger
Agreement, the Assets Purchase, the Asset Purchase Agreement, or any of
the transactions contemplated thereby;
(b) Intentionally Omitted.
3. Grant of Irrevocable Proxy.
(a) Proxy. CPI hereby irrevocably grants to and appoints Buyer and Assets
Buyer (and each officer of Buyer and Assets Buyer designated by Buyer and
Assets Buyer respectively), CPI's proxy and attorney-in-fact (with full power
of substitution), for and in the name, place and stead of CPI, to vote at a
meeting of stockholders (or cause to be voted) all of the Company Shares owned
by CPI (and any and all securities issued or issuable in respect thereof), or
as to which CPI has voting control, solely with respect to the matters set
forth below, at any annual, special or other meeting of the stockholders of
the Company, and at any adjournment or adjournments thereof:
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(i) in favor of the approval of the Company Merger and the other
transactions contemplated by the Merger Agreement (including the
transactions pursuant to the Asset Purchase Agreement) and in favor of
the approval and adoption of the Merger Agreement, and all actions
required in furtherance thereof;
(ii) in favor of the approval of the Assets Purchase and the other
transactions contemplated by the Asset Purchase Agreement and all actions
required in furtherance thereof;
(iii) against any Acquisition Proposal (other than (A) the Company
Merger and the Assets Purchase, (B) any Substitute Merger Agreement (as
defined in the Asset Purchase Agreement) and any Substitute Merger) and
(C) any Substitute APA and any Substitute Asset Purchase); and
(iv) against any amendment of the Company's Certificate of
Incorporation or Bylaws which amendment would in any manner prevent or
materially impede, interfere with or delay the Company Merger, the Merger
Agreement, the Assets Purchase, the Asset Purchase Agreement or any of
the transactions contemplated thereby;
(b) Duration. CPI hereby affirms that the irrevocable proxy granted to
Buyer set forth in this Section 3 will be valid until (but not beyond) the
earlier of the Termination Time or the Healthcare Termination Time (as defined
in Section 8(b)) and is given to secure the performance of the obligations of
CPI under this Agreement. CPI hereby affirms that the irrevocable proxy
granted to Assets Buyer set forth in this Section 3 will be valid until (but
not beyond) the earlier of the Termination Time or the Consumer Termination
Time (as defined in Section 8(b)) and is given to secure the performance of
the obligations of CPI under this Agreement. CPI hereby revokes any proxy
previously granted by it with respect to its Company Shares and further
affirms that each proxy hereby granted shall, until (but not beyond) the
requisite times set forth in the preceding two sentences, be irrevocable and
shall be deemed coupled with an interest, in accordance with the Delaware
General Corporation Law (the "DGCL").
4. Restrictions on Transfer; No Conversion; No Solicitation.
(a) Except as provided in this Agreement, CPI shall not sell, transfer,
assign, pledge, or otherwise dispose of, or enter into any contract, option or
other agreement with respect to the sale, transfer, assignment or other
disposition of the Company Shares now owned beneficially or of record or
hereafter acquired by CPI (or any interest contained therein) at any time
prior to the Termination Time. CPI shall not, prior to the Termination Time,
convert any Company Shares that are Class B Common Stock into Common Stock.
(b) CPI shall and shall cause its officers and directors to comply with
the provisions of Section 6.2 of the Merger Agreement and Section 8.11 of the
Asset Purchase Agreement (without giving effect to the proviso (except in the
case of any officer or director of CPI who is an officer or director of the
Company) in the first sentence of each such Section).
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5. Additional Shares. Without limiting the provisions of the Merger
Agreement, in the event (i) of any stock dividend, stock split,
recapitalization, reclassification, combination or exchange of shares of
capital stock of the Company on, of or affecting the Company Shares or (ii)
CPI becomes the record owner of any additional shares of Company Shares or
other securities entitling the holder thereof to vote or give consent with
respect to the matters set forth in Section 2, then the terms of this
Agreement shall apply to the shares of capital stock or other securities of
the Company held by CPI immediately following the effectiveness of the events
described in clause (i) or CPI becoming the record owner thereof, as described
in clause (ii), as though they were Company Shares hereunder. CPI hereby
agrees to promptly notify (x) until the Healthcare Termination Time, the Buyer
and (y) until the Consumer Termination Time, the Assets Buyer of the number of
any new shares of Company Shares or other voting securities of the Company
acquired by CPI, if any, after the date hereof and prior to the Termination
Time.
6. Dividends. CPI shall retain record and beneficial ownership of all
Company Shares and be entitled to receive all cash dividends paid by the
Company with respect to the Company Shares during the term of this Agreement.
7. Representations and Warranties.
(a) Organization and Due Authority. Each Party hereby represents and
warrants to the other Party that (i) such Party is duly organized, validly
existing, and in good standing under the laws of the jurisdiction of its
organization and (ii) such Party has all requisite power and authority to
execute and deliver this Agreement, to perform its obligations hereunder and
to consummate the transactions contemplated hereby.
(b) Binding Agreement. Each Party hereby represents and warrants to the
other Party that (i) the execution, delivery and performance by such Party of
this Agreement and the consummation of the transactions contemplated hereby
have been duly authorized by all necessary action on the part of such Party
and (ii) this Agreement has been duly executed and delivered by such Party and
is a legal, valid and binding obligation of such Party, enforceable against it
in accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or affecting the enforcement of creditors' rights in general and by general
principles of equity.
(c) Noncontravention. Each Party hereby severally and not jointly
represents and warrant to the other Party that neither the execution and
delivery of this Agreement by such Party nor the consummation by such Party of
the transactions contemplated hereby will (i) conflict with any provision of
such Party's Certificate of Incorporation or Bylaws or similar organizational
documents, (ii) violate or result in a breach of any material contract to
which such Party is a party or (iii) violate any law to which such Party is
subject.
(d) Ownership of Company Shares. Except to the extent that the
stockholders of CPI (and their beneficiaries) are deemed to beneficially own
the Company Shares, CPI is the record and beneficial owner of the Company
Shares, free and clear of any and all liens, options or restrictions on the
right to vote or grant a consent with respect to such Company Shares, except
for such liens and restrictions arising under this Agreement or as set forth
in the CPI Disclosure Letter. CPI shall notify any existing pledgee of Company
Shares of this Agreement. CPI has the exclusive power to vote the Company
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Shares, except as provided in this Agreement. The Company Shares represent all
the shares of capital stock of the Company owned of record and beneficially by
CPI.
8. General Provisions.
(a) Specific Performance. The Parties agree that a violation, breach or
threatened breach by any other Party of any term of this Agreement would cause
irreparable injury for which an adequate remedy at law is not available.
Therefore, the Parties agree that each Party shall have the right of specific
performance and, accordingly, shall be entitled to an injunction, restraining
order or other form of equitable relief, in addition to any and all other
rights and remedies at law or in equity, restraining any other Party from
committing any breach or threatened breach of, or otherwise specifically to
enforce, any provision of this Agreement and all such rights will be
cumulative. The Parties further agree that any defense in any action for
specific performance that a remedy at law would be adequate is waived.
(b) Termination.
(i) This Agreement shall terminate in its entirety, and no Party
shall have any rights or obligations hereunder, upon the earliest of (x)
the Company Merger Effective Time, (y) the termination of both the Merger
Agreement and the Asset Purchase Agreement pursuant to their respective
terms, and (z) the time (if any) the aggregate number of Common Shares
and Class B Common Shares, taken collectively, with respect to which
appraisal rights have been exercised and properly perfected in accordance
with Section 262 of the DGCL exceeds 30% of the aggregate number of
Common Shares and Class B Common Shares outstanding immediately prior to
the taking of the vote of the stockholders of the Company with respect to
the Company Merger. The date and time at which this Agreement is
terminated in accordance with this Section 8(b)(i) is referred to herein
as the "Termination Time".
(ii) This Agreement shall terminate with respect to Buyer (but
not with respect to Assets Buyer), and Buyer shall have no further rights or
obligations hereunder, upon the earlier of (x) the Company Merger Effective
Time and (y) the termination of the Merger Agreement pursuant to its terms.
The date and time at which this Agreement is terminated in accordance with
this Section 8(b)(ii) is referred to herein as the "Healthcare Termination
Time".
(iii) This Agreement shall terminate with respect to Assets
Buyer (but not with respect to Buyer), and Assets Buyer shall have no further
rights or obligations hereunder, upon the earlier to occur of (x) the
consummation of the Assets Purchase and (y) termination of the Asset Purchase
Agreement pursuant to its terms. The date and time at which this Agreement is
terminated in accordance with this Section 8(b)(iii) is referred to herein as
the "Consumer Termination Time".
(iv) Notwithstanding the foregoing, no termination of this
Agreement (including any termination with regard to the Assets Buyer or the
Buyer) shall relieve any Party for a breach of this Agreement.
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(c) Notices. All notices and other communications required or permitted
hereunder shall be in writing and shall be deemed to have been duly given (i)
on the date of service, if served personally, (ii) upon confirmation of
receipt, if transmitted by telecopy, electronic or digital transmission
method, (iii) on the first business day after it is sent, if sent for next day
delivery by recognized overnight delivery service (e.g., Federal Express), and
(iv) on the third day after it is sent, if sent by first class mail,
registered or certified, postage prepaid and return receipt requested. In each
case, notice shall be sent to the Parties at the following addresses (or at
such other address for a Party as shall be specified by like notice):
If to CPI, addressed to:
CPI Development Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxx
Telecopy: 000-000-0000
With copies to:
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
If to Buyer, addressed to:
MCC Acquisition Holdings Corporation
00 XXX Xxxxxxx
0xx Xxxxx Xxxx
Xxxxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Wild
Telecopy: (000) 000-0000
With a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
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If to Assets Buyer, addressed to:
Armkel, LLC
c/o Kelso & Company
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, XX, Esq.
Telecopy: (000) 000-0000
With copies to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
0 Xxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Xxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxx Xxxxx
Xxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
Notice of change of address shall be effective only when done in accordance
with this Section 8(c).
(d) Interpretation. When a reference is made in this Agreement to
Sections, such reference shall be to a Section of this Agreement unless
otherwise indicated. Headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Whenever the word "include," "includes" or "including" are
used in this Agreement, they shall be deemed to be followed by the words
"without limitation". This Agreement shall not be construed for or against any
Party by reason of the authorship or alleged authorship of any provision
hereof or by reason of the status of the respective Parties. For all purposes
of this Agreement, words stated in the singular shall be held to include the
plural and vice versa, and words of one gender shall be held to include each
other gender, as the context may require or allow. The terms "hereof,"
"herein," and "herewith" and words of similar import shall, unless otherwise
stated, be construed to refer to this Agreement as a whole (and not to any
particular provision of this Agreement). The word "or" shall not be exclusive.
(e) Entire Agreement. This Agreement, the Asset Purchase Agreement and
the Merger Agreement constitute the entire agreement of the Parties, as
applicable with respect to the subject matter hereof and thereof and supersede
all prior agreements or understandings, both written and oral, with respect to
such subject matter. No Party has made any representation or warranty or given
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any covenant to another Party except as set forth in this Agreement and in the
Merger Agreement.
(f) Assignment; Successors and Assigns. Each Party agrees that it will
not assign, transfer, delegate, or otherwise dispose of, whether voluntarily
or involuntarily, any right or obligation under this Agreement without the
prior written consent of the other Party. Any purported assignment, transfer,
delegation or disposition in violation of this Section 8(f) shall be null and
void ab initio. Subject to the foregoing limits on assignment, this Agreement
shall be binding upon and shall inure to the benefit of the Parties and their
respective successors and permitted assigns. This Agreement does not create,
and shall not be construed as creating, any rights or claims enforceable by
any Person not a party to this Agreement.
(g) Governing Law; Jurisdiction. This Agreement shall be construed and
interpreted and the rights granted herein governed in accordance with the laws
of the State of Delaware applicable to contracts executed in and to be
performed within such State, regardless of the laws that might otherwise
govern under applicable principles of conflicts of laws. The Parties hereby
irrevocably submit to the jurisdiction of the courts of the State of Delaware
and the Federal courts of the United States of America located in Delaware
solely in respect of the interpretation and enforcement of the provisions of
this Agreement and of the documents referred to in this Agreement, and in
respect of the transactions contemplated hereby, and hereby waive, and agree
not to assert, as a defense in any action, suit or proceeding for the
interpretation or enforcement hereof or of any such document, that it is not
subject thereto or that such action, suit or proceeding may not be brought or
is not maintainable in said courts or that the venue thereof may not be
appropriate or that this Agreement or any such document may not be enforced in
or by such courts, and the parties hereto irrevocably agree that all claims
with respect to such action or proceeding shall be heard and determined in
such a Delaware State or Federal court. The parties hereby consent to and
grant any such court jurisdiction over the person of such Parties and over the
subject matter of such dispute and agree that mailing of process or other
papers in connection with any such action or proceeding in the manner provided
in Section 8(c) or in such other manner as may be permitted by law shall be
valid and sufficient service thereof.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE
UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES,
AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES
ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH
PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATES IN THIS SECTION 8(g).
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(h) Severability. It is the intention of the Parties that the provisions
of this Agreement shall be deemed severable and the invalidity or
unenforceability of any provision shall not affect the validity or
enforceability of the other provisions of this Agreement. It is the intention
of the Parties that if any provision of this Agreement, or the application
thereof to any Person or circumstance, is invalid or unenforceable, (i) a
suitable and equitable provision shall be substituted therefor in order to
carry out, so far as the may be valid and enforceable, the intent and purpose
of such invalid or unenforceable provision and (ii) the remainder of this
Agreement and the application of such provision to other Persons or
circumstances shall not be affected by such invalidity or unenforceability,
nor shall such invalidity or unenforceability affect the validity or
enforceability of such provision, or the application thereof, in any other
jurisdiction.
(i) Counterparts; Facsimile Signatures. This Agreement may be executed in
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument. This Agreement may be
executed by fax with the same binding effect as original ink signatures.
(j) Amendments, Waivers, Etc. This Agreement may not be amended,
supplemented or otherwise modified, except upon the execution and delivery of
a written agreement by the Parties, provided that if this Agreement terminates
with regard to any Party pursuant to Section 8(b) but remains in effect with
respect to the other Parties hereto, the consent of the terminated Party shall
not be required for any amendment, supplement or modification. By an
instrument in writing, the Parties may waive compliance by another Party with
any provision of this Agreement; provided, however, that any such waiver shall
not operate as a waiver of, or estoppel with respect to, any other or
subsequent failure or with respect to a Party that has not executed and
delivered any such waiver. No failure to exercise and no delay in exercising
any right, remedy, or power hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, remedy, or power hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, or power provided herein or by law or at equity.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
duly executed as of the date first above written.
MCC ACQUISITION HOLDINGS CORPORATION
By: /s/ Xxxxxxx X. Wild
--------------------------------
Name: Xxxxxxx X. Wild
Title: President
ARMKEL, LLC
By: Church & Xxxxxx Co., Inc.
By: /s/ Xxxxxx X. Xxxxxx, III
-------------------------------
Name: Xxxxxx X. Xxxxxx, III
Title: Chief Executive Officer
By: Xxxxx & Companies, Inc.,
its general partner
By: /s/ Xxxxx X. Xxxxxxx, XX
-------------------------------
Name: Xxxxx X. Xxxxxxx, XX
Title: V.P. & General Counsel
CPI DEVELOPMENT CORPORATION
By: /s/ Xxxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Comptroller
