Exhibit B
VOTING AGREEMENT
This Voting Agreement is entered into as of January 29, 1998, between U.S.
Aggregates, Inc., a Delaware corporation ("Purchaser"), and Building and
Construction Capital Partners I, L.P., a California limited partnership (the
"Stockholder").
RECITALS
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A. Pursuant to that certain Agreement and Plan of Merger dated as of
January 29, 1998 (the "Merger Agreement") among Purchaser, Western Acquisition,
Inc., a Delaware corporation and wholly owned indirect subsidiary of Purchaser
("Sub"), and Monroc, Inc., a Delaware corporation ("Monroc"), Sub will be merged
with and into Monroc (the "Merger").
B. The Stockholder is executing this Agreement as an inducement to
Purchaser to enter into and execute the Merger Agreement.
C. All capitalized terms used but not defined herein shall have the
meanings set forth in the Merger Agreement.
AGREEMENT
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NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
1. Representations and Warranties of the Stockholder. The Stockholder
hereby represents and warrants to Purchaser:
(a) The Stockholder has all necessary power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby. The execution and delivery of this
Agreement by the Stockholder and the consummation by the Stockholder of the
transactions contemplated hereby have been duly and validly authorized by the
Stockholder, and no other proceedings on the part of the Stockholder are
necessary to authorize the execution and delivery of this Agreement or to
consummate such transactions.
(b) The execution and delivery of this Agreement by the Stockholder do
not, and the performance of this Agreement by the Stockholder will not, result
in a violation of, or a default under, or conflict with, any contract,
commitment, agreement or arrangement which the Stockholder is a party or by
which the Stockholder is bound or affected, which violation, default or conflict
would materially and adversely affect the Stockholder's ability to perform its
obligations under this Agreement.
(c) The Stockholder is the record holder of 1,650,000 shares of common
stock, par value $.01 per share, of Monroc (the "Shares"). The Stockholder has
not appointed or granted any proxy, which appointment or grant is still
effective, with respect to the Shares. Except for the Shares, the Stockholders
is not the record or beneficial owner of any shares of capital stock of Monroc.
2. Representations and Warranties of Purchaser. The Purchaser hereby
represents and warrants to the Stockholder:
(a) Purchaser has all necessary power and authority to execute and deliver
this Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by Purchaser and the consummation by Purchaser of the transactions contemplated
hereby have been duly and validly authorized by Purchaser, and no other
proceedings on the part of Purchaser are necessary to authorize the execution
and delivery of this Agreement or to consummate such transactions.
(b) The execution and delivery of this Agreement by Purchaser do not, and
the performance of this Agreement by Purchaser will not, result in a violation
of, or a default under, or conflict with, any contract, commitment, agreement or
arrangement which Purchaser is a party or by which Purchaser is bound or
affected, which violation, default or conflict would materially and adversely
affect Purchaser's ability to perform its obligations under this Agreement.
3. Disposition of Shares. During the term of this Agreement, the
Stockholder hereby covenants and agrees that it shall not transfer ownership of
or pledge any of its Shares unless the transferee or pledgee agrees in writing
to be bound by the terms and conditions of this Agreement.
4. Voting. During the term of this Agreement, the Stockholder hereby
agrees that at any meeting of the stockholders of Monroc, however called, and in
any action by consent of the stockholders of Monroc, the Stockholder shall vote
its Shares owned as of the date hereof or hereafter acquired (a) in favor of
adoption of the Merger Agreement and approval of the transactions contemplated
thereby and (b) against approval or adoption of any action or agreement (other
than the Merger Agreement or the transactions contemplated thereby) that would
impede, interfere with, delay, postpone or attempt to discourage the Merger or
reasonably be expected to result in a breach of the Merger Agreement; provided,
however, that the Stockholder has no obligation to vote in favor of adoption of
any agreement other than the Merger Agreement as presently constituted or
approval of any transaction other than those transactions described in the
Merger Agreement.
5. Proxy. During the term of this Agreement, the Stockholder hereby
constitutes and appoints Purchaser, or any nominee of Purchaser, with full power
of substitution, as his or its true and lawful attorney and proxy, for and in
his, her or its name, place and stead, to vote as his, her or its proxy at any
meeting of the stockholders of Monroc, however called (a) in favor of adoption
of the Merger Agreement and approval of the transactions contemplated thereby
and (b) against
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approval or adoption of any action or agreement (other than the Merger Agreement
or the transactions contemplated thereby) that would impede, interfere with,
delay, postpone or attempt to discourage the Merger or reasonably be expected to
result in a breach of the Merger Agreement; provided, however, that the
Stockholder has no obligation and the Purchaser has no authority to vote in
favor of adoption of any agreement other than the Merger Agreement as presently
constituted or approval of any transaction other than those transactions
described in the Merger Agreement. The Purchaser may sign such Stockholder's
name to any written consent of the stockholders of Monroc with respect to the
Shares but only with respect to matters referenced in clauses (a) and (b) of
this Section 5 and subject to the limitations set forth in Section 4 and this
Section 5.
6. Waiver of Appraisal Rights. To the extent applicable, the Stockholder
hereby waives any rights of appraisal or rights to dissent from the Merger that
the Stockholder may have on the terms set forth in the Merger Agreement in
effect on the date hereof.
7. Termination. This Agreement shall terminate upon the earliest to
occur of (a) the consummation of the Merger or (b) the termination of the Merger
Agreement.
8. Specific Performance. The parties hereto agree that irreparable
damage would occur in the event any provision of this Agreement were not
performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
9. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes all prior written and oral and all
contemporaneous oral agreements and understandings with respect to the subject
matter hereof.
10. Amendment; Waiver. This Agreement shall not be amended, altered or
modified except by an instrument in writing duly executed by each of the parties
hereto. No failure or delay on the part of any party in exercising any right,
power or remedy hereunder shall operate as a waiver hereof; nor shall any single
or partial exercise of any right, power or remedy preclude any other future
exercise thereof or the exercise of any other right, power or remedy hereunder.
11. Assignment. Neither this Agreement nor any right or obligation
hereunder is assignable in whole or in part, whether by operation of law or
otherwise, by the parties to this Agreement without the express written consent
of the other parties, and any such attempted assignment shall be void and
unenforceable
12. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without giving effect to the
principles of conflict of laws thereof.
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13. Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
14. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have teen duly given upon receipt) by delivery in person, by cable,
telegram, telex or telecopies, or by registered or certified mail (postage
prepaid, return receipt requested) to the respective parties as follows:
If to Purchaser: U.S. Aggregates, Inc.
000 Xxxxx Xx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx
with a copy to: Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxxxxxx, Esq.
If to Stockholder: Xxxxxxx Xxxx & Associates
000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
with copies to: LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P.
000 Xxxxx Xxxx Xxxxxx
0000 Xxxxxx Xxxxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
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
(provided that notice of any change of address shall be effective only upon
receipt thereof).
15. Descriptive Headings. The descriptive headings 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.
16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same
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instrument. It shall not be necessary for all parties hereto to execute the
same counterpart(s) of this Agreement for this Agreement to become effective
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first written above.
U.S. AGGREGATES, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
BUILDING AND CONSTRUCTION CAPITAL
By: BUILDING AND CONSTRUCTION CAPITAL
PARTNERS, L.P., as general partner
By: /s/ Xxxx Scholovinck
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Name: Xxxx Sholovinck
Title: Chief Financial Officer
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