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EXHIBIT 7.5
VOTING AGREEMENT
This Voting Agreement (this "Agreement"), dated as of August 17, 1999 among
Xxxxxxxxx Environmental & Industrial Equity Partners, L.P. a limited partnership
organized under the laws of the State of Delaware ("Purchaser"), and Xxxxx X.
Xxxxx, a stockholder (the "Stockholder") of Xxxxx Transportation Services, Inc.,
a Delaware corporation (the "Company").
WITNESSETH:
WHEREAS, concurrently herewith, Purchaser and the Company are entering
into a Stock Purchase Agreement (as such agreement may hereafter be amended from
time to time, the "Stock Purchase Agreement"), pursuant to which the Purchaser
will purchase from the Company shares of Common Stock of the Company, par value
$.0001 per share (the "Common Stock"); and
WHEREAS, as an inducement and a condition to entering into the Stock
Purchase Agreement, Purchaser has required that the Stockholder agree, and the
Stockholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual premises,
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Definitions. Capitalized terms used and not defined herein have the
respective meanings ascribed to them in the Stock Purchase Agreement. For
purposes of this Agreement:
(a) "Company Stock" shall mean at any time, collectively, shares of
Common Stock.
(b) "Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean having "Beneficial Ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), including pursuant to any agreement, arrangement
or understanding, whether or not in writing. Notwithstanding the foregoing,
securities Beneficially Owned by a Person shall not include securities which are
actually owned by other Persons but which such Person may be deemed to
Beneficially Own under Rule 13d-3 under the Exchange Act solely because such
Person may be deemed to be part of a "group" with such other Persons as within
the meaning of Section 13(d)(3) of the Exchange Act.
(c) "Related Party" or "Related Parties" means Affiliates of the
Stockholder and the Company, principal stockholders of the Company, the spouse
of the Stockholder, family members of the Stockholder, and any family trust or
similar instrument (whether the Stockholder is a beneficiary or trustee
thereof).
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2. Provisions Concerning Company Stock.
(a) The Stockholder hereby agrees that during the period commencing
on the date hereof and continuing for so long as the Stockholder holds any
shares of Common Stock, at any meeting of the holders of Company Stock, however
called, or in connection with any written consent of the holders of Company
Stock, the Stockholder shall vote (or cause to be voted) all shares of Company
Stock held of record or Beneficially Owned by the Stockholder, whether
heretofore owned or hereafter acquired (collectively, the "Shares"): (i) in
favor of the Charter Amendment; (ii) in favor of the Investment Proposal and the
execution and delivery by the Company of the Stock Purchase Agreement and the
Related Agreements, the approval of the terms thereof and each of the other
transactions and actions contemplated thereby (and the matters related to the
consummation thereof); (iii) in favor of the appointment of the Purchaser
Designees to the Board of Directors of the Company, as contemplated by the Stock
Purchase Agreement; (iv) in favor of the Charter and By-Law Amendments; (v)
against any action or agreement that would result in a breach in any respect of
any covenant, representation or warranty or any other obligation or agreement of
the Company under the Stock Purchase Agreement or the Related Agreements or of
the Stockholder under this Agreement or that would result in any of the
conditions to the obligations of the Company under the Stock Purchase Agreement
not being fulfilled; and (vi) until the Investment Proposal shall have been duly
approved by the holders of Company Stock, and except as otherwise agreed to in
writing in advance by Purchaser, against each of the following actions (other
than the transactions contemplated by, or required by, the Stock Purchase
Agreement and the Related Agreements): (A) any extraordinary corporate
transaction, such as a merger, consolidation or other business combination
involving the Company or its Subsidiaries; (B) a sale, lease or transfer of a
material amount of assets of the Company or its Subsidiaries, or a
reorganization, recapitalization, dissolution or liquidation of the Company or
its Subsidiaries; (C) any change in a majority of the Persons who constitute the
board of directors of the Company; (D) any change in the present capitalization
of the Company or any amendment of the Company's Certificate of Incorporation or
Bylaws; (E) any other material change in the Company's corporate structure or
business; or (F) any other action involving the Company or its Subsidiaries
which is intended, or could reasonably be expected, to impede, interfere with,
delay, postpone, or materially adversely affect the transactions contemplated by
the Stock Purchase Agreement, the Related Agreements and this Agreement.
(b) In the event of a stock dividend or distribution, or any change
in the Company Stock by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like, the term "Shares"
shall be deemed to refer to and include the Shares as well as all such stock
dividends and distributions and any shares into which or for which any or all of
the Shares may be changed or exchanged.
3. Other Representations, Warranties and Covenants. The Stockholder
hereby represents, warrants and covenants to Purchaser as follows:
(a) Ownership of Shares. The Stockholder is, as of the date hereof,
the record holder of and Beneficially Owns the number of shares of Company Stock
set forth opposite the Stockholder's name on Schedule I hereto. As of the date
hereof, the Shares set forth opposite the Stockholder's name on Schedule I
hereto constitute all of the Shares owned of record or Beneficially Owned by the
Stockholder. The Stockholder has sole voting power or sole power to issue
instructions with respect to the matters covered hereby.
(b) Power; Binding Agreement. The Stockholder has the legal
capacity, power and authority to enter into and perform all of the Stockholder's
obligations under this Agreement. The
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execution, delivery and performance of this Agreement by the Stockholder will
not violate any other agreement to which the Stockholder is a party including,
without limitation, any other voting agreement, stockholders agreement, voting
trust or similar agreement. This Agreement has been duly and validly executed
and delivered and authorized, to the extent required, by the Stockholder and
constitutes a valid and binding agreement of the Stockholder, enforceable
against the Stockholder in accordance with its terms. There is no beneficiary or
holder of a voting trust certificate or other interest of any trust of which the
Stockholder is a trustee whose consent is required for the execution and
delivery of this Agreement or the consummation by the Stockholder of the
transactions contemplated hereby.
(c) No Conflicts. (i) No filing with, and no permit, authorization,
consent or approval of, any state or federal public body or authority is
necessary for the execution of this Agreement by the Stockholder and the
consummation by the Stockholder of the transactions contemplated hereby, and
(ii) none of the execution and delivery of this Agreement by the Stockholder,
the consummation by the Stockholder of the transactions contemplated hereby or
compliance by the Stockholder with any of the provisions hereof shall (A) 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, bond, mortgage, indenture, license,
contract, commitment, arrangement, understanding, agreement or other instrument
or obligation of any kind to which the Stockholder is a party or by which the
Stockholder or any of the Stockholder's properties or assets may be bound, or
(B) violate any order, writ, injunction, decree, judgment, order, statute, rule
or regulation applicable to the Stockholder or any of the Stockholder's
properties or assets.
(d) Proxies and Non-Interference. Beginning on the date hereof and
continuing until this Agreement terminates pursuant to Section 4, the
Stockholder shall not, directly or indirectly, (i) except as contemplated by
this Agreement, grant any proxies or powers of attorney, deposit any Shares into
a voting trust or enter into or amend a voting agreement with respect to any
Shares, or (ii) take any action that would have the effect of preventing or
disabling the Stockholder from performing the Stockholder's obligations under
this Agreement.
(e) Standstill. During the ten (10) Trading Days immediately
preceding the Closing Date, and during the period commencing fifteen (15)
Trading Days prior to the Adjustment Period and continuing until the expiration
of the Adjustment Period, without the prior written consent of Purchaser, the
Stockholder shall not (i) (x) in any manner acquire, agree to acquire or make
any proposal to acquire, or (y) in any manner Transfer (as hereinafter defined),
directly or indirectly shares of Common Stock of the Company, (ii) make or in
any way participate, directly or indirectly, in any "solicitation" of "proxies"
(as such rules are used in the proxy rules of the Securities & Exchange
Commission) to vote, or seek to advise or influence any person with respect to
the voting of, any shares of Common Stock of the Company, or (iii) form, join or
in any way participate in a "group" (within the meaning of Section 13(d) of the
Exchange Act) with respect to any shares of Common Stock of the Company.
(f) Reliance by Purchaser. The Stockholder understands and
acknowledges that Purchaser is entering into the Stock Purchase Agreement in
reliance upon the Stockholder's execution and delivery of this Agreement.
(g) Further Assurances. From time to time, at the 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 necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this Agreement.
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4. Termination. This Agreement shall terminate only upon, and
simultaneously with, the termination of the Stock Purchase Agreement in
accordance with its terms; provided, however, that no such termination shall
relieve any party of liability for a breach hereof prior to termination.
5. Stockholder Capacity. No Person executing this Agreement who is or
becomes during the term hereof a director of the Company makes any agreement or
understanding herein in his or her capacity as such director. The Stockholder
signs solely in his or her capacity as the record and/or Beneficial Owner of, or
the trustee of a trust whose beneficiaries are the Beneficial Owners of, the
Stockholder's Shares.
6. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersede all other prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
(b) Restriction on Transfers. Prior to the Stockholder Meeting, this
Agreement and the obligations hereunder shall attach to the Stockholder's Shares
and shall be binding upon any Person to which legal or Beneficial Ownership of
such Shares shall pass, whether by operation of law or otherwise, including,
without limitation, the Stockholder's heirs, guardians, administrators or
successors. Prior to the Stockholder Meeting, the Stockholder shall not sell,
agree to sell, make any proposal to sell, transfer, pledge, assign or otherwise
dispose of (whether by operation of law or otherwise) (collectively,
"Transfer"), or enter into any contract, option or other arrangement with
respect to the Transfer of any of the Stockholder's Shares, unless as a
condition of such Transfer the transferee agrees in writing to be bound by the
terms and conditions of this Agreement. After the Stockholder Meeting and until
the earliest of (x) the date upon which this Agreement terminates pursuant to
Section 4, (y) the period ending on the fifth anniversary after the Closing
Date, and (z) the date Purchaser and its successors and assigns no longer
beneficially own in the aggregate more than fifty percent (50%) of the number of
Initial Shares and Additional Shares originally issued to Purchaser, the
Stockholder shall not Transfer any of the Stockholder's Shares, unless (i) such
Transfer is permitted by Section 3(e), and (ii) if such Transfer is made to a
Related Party, as a condition of such Transfer the transferee agrees in writing
to be bound by the terms and conditions of this Agreement.
(c) Legends. The Stockholder hereby acknowledges and agrees the
Company shall place a legend on the shares of Company Stock so as to indicate
that all holders thereof shall be subject to the terms and conditions of this
Agreement.
(d) Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder may be assigned or delegated by the
Stockholder or Purchaser without the prior written consent of the other party
and any purported assignment or delegation in violation hereof shall be null and
void, provided, however, that Purchaser may assign all or any part of its
rights, interests and obligations hereunder to any Affiliate of Purchaser;
provided, that no such assignment before the Closing Date by Purchaser shall
relieve Purchaser of its obligations hereunder.
(e) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated with respect
to the Stockholder, except upon the execution and delivery of a written
agreement executed by the parties hereto; provided that Schedule I hereto may be
supplemented by Purchaser by other relevant information concerning the
Stockholder of the Company without the agreement of the other party hereto.
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(f) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telegram, telex
or telecopy, or by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any courier service, such as Federal Express, providing
proof of delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses:
If to Purchaser: Xxxxxxxxx Capital, Inc.
0000 Xxxxxxxxxxxx Xxxxxx
000 Xxxxx 0xx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
(000) 000-0000 (telecopier)
Attention: Xxxxx X. Xxxxxx
Copy to: Xxxxxx & Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000 (telecopier)
Attention: Xxxxxx X. Xxxxx
Or to such other address as the Person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(g) Severability. Whenever possible, each provision or portion of
any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unforceability will not affect any other provision or
portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
(h) Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenant or agreement contained in this
Agreement will cause the other party to sustain damages for which it would not
have an adequate remedy at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
(i) 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 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.
(j) No Waiver. 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.
(k) No Third Party Beneficiaries. This Agreement is not intended to
be for the benefit of, and shall not be enforceable by, any Person who or which
is not a party hereto.
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(l) Governing Law. This Agreement shall be governed by and construed
in accordance with laws of the State of New York without giving regard to the
principles of conflicts of law.
(m) Jurisdiction. Each of the parties hereto hereby agrees to submit
to the exclusive jurisdiction of the U.S. Federal courts in the Southern
District of the State of New York.
(n) Descriptive Headings. 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.
(o) Counterparts. 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 Agreement.
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IN WITNESS WHEREOF, Purchaser and each Stockholder have caused this Agreement to
be duly executed as of the day and year first above written.
STOCKHOLDER:
By: /s/ XXXXX X. XXXXX
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Name: XXXXX X. XXXXX
Address: 000 XXXXXX XXXXXX
XXXXXXXX, XXXXXXXX, 00000
XXXXXXXXX ENVIRONMENTAL & INDUSTRIAL EQUITY
PARTNERS, L.P., a Delaware limited partnership
By Xxxxxxxxx Capital Environmental, L.L.C., a
Delaware limited liability company
Its General Partner
By Xxxxxxxxx Capital, Inc.
Its Managing Agent
By: /s/ XXXX X. XXXXX
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Name: XXXX X. XXXXX
Title: PRINCIPAL
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SCHEDULE I
OWNERSHIP OF SHARES
XXXXX X. XXXXX 410,956
________________________ ________________________________
Name Number of shares of Common Stock
