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VOTING AGREEMENT
This Voting Agreement (the "Agreement") is made and entered
into as of September 17, 1999, by and between Targetti Xxxxxx S.p.A., an
Italian corporation ("Parent") and Xxxxxx X. Xxxxxxxxxx, as trustee of the
Xxxxxxxxxx Family Trust, a trust (the "Shareholder"), a trust with the
registered address of 000 Xxxxx Xxxxxx, Xx. 000, Xxxxx Xxxxxx, Xxxxxxxxxx 00000.
RECITALS:
WHEREAS, the Shareholder is the owner of 22,666 shares of
common stock, par value $0.001 per share (the "Common Stock") of the Company;
and
WHEREAS, in order to induce Parent and certain of its
affiliates to enter into an agreement and plan of merger (the "Merger
Agreement") with Tivoli Industries, Inc., a California corporation (the
"Company"), the Shareholder has agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual covenants and agreements contained herein, the parties hereto agree
as follows:
ARTICLE I
DEFINITIONS; PROVISIONS CONCERNING SHARES
1.1 Definitions. Capitalized terms used and not defined
herein have the respective meanings ascribed to them in the Merger Agreement.
For purposes of this Agreement, "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.
1.2 Provisions Concerning the Shares.
(a) The Shareholder hereby agrees that during
the period commencing on the date hereof and continuing until the first
to occur of the Effective Time or the date on which the Merger
Agreement is terminated in accordance with its terms, at any meeting of
the holders of the Common Stock, however called, or in connection with
any written consent of the holders of Common Stock, the Shareholder
shall vote (or cause to be voted) all shares of Common Stock held of
record or Beneficially Owned by the Shareholder, whether heretofore
owned or hereafter acquired (collectively, the "Shares"), (i) in favor
of the Merger, the adoption of the Merger Agreement by the Company and
the approval of the terms thereof, and each of the other transactions
and actions contemplated by the Merger Agreement (and the matters
related to the consummation thereof) and any actions required in
furtherance thereof; and (ii) 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 Merger Agreement or that would result in any of the conditions to
the obligations of the Company under the Merger Agreement not being
fulfilled. Notwithstanding anything contained herein to the contrary,
the Shareholder shall not be required by this Agreement to exercise
options for Shares if the exercise price per Share pursuant to such
option would exceed the fair market value of a Share.
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(b) In the event of a stock dividend or
distribution, or any change in Common 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.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER
The Shareholder hereby represents and warrants to Parent as follows:
2.1 Authority; Non-Contravention. The Shareholder has the
legal right, power and authority to execute, deliver and perform this Agreement,
and the execution, delivery and performance by the Shareholder of this Agreement
and any other agreements, certificates and instruments to be executed by such
Shareholder in connection with or pursuant to this Agreement and the
consummation of the transactions contemplated hereby and thereby (i) require no
action by or in respect of, consent, approval or authorization of, or filing
with, any governmental body, agency, official or authority or any other person
or entity, and (ii) do not and will not violate or constitute a default under
any provision of applicable law or regulation or of any agreement, judgment,
injunction, order, decree, the Trust Agreement (as defined below) or other
instrument binding on the Shareholder or result in the imposition of any lien on
any asset of the Shareholder.
2.2 Binding Effect. This Agreement has been duly executed
and delivered by the Shareholder and is a valid and binding agreement of the
Shareholder, enforceable against the Shareholder in accordance with its terms.
2.3 Shares. The Shareholder is the sole record owner, in
his or her capacity as trustee under the Trust Agreement, and the beneficiaries
of the Xxxxxxxxxx Family Trust are the sole Beneficial Owners of the Shares.
Except as set forth on the signature pages hereto, the Shareholder does not own
any options to purchase or rights to subscribe for or otherwise acquire any
securities of the Company. The Shareholder has sole voting power and sole power
to issue instructions with respect to the Shares, the sole power of disposition,
the sole power of conversion, the sole power to demand appraisal rights and the
sole power to agree to all of the matters set forth in this Agreement, in each
case with respect to all of the Shares beneficially owned by the beneficiaries
of the Xxxxxxxxxx Family Trust with no limitations, qualifications or
restrictions on such rights.
2.4 Liens. Except as previously disclosed in writing by
the Shareholder to Parent, the Shares are owned by the Shareholder free and
clear any Liens. As used herein "Lien" means any mortgage, pledge, assessment,
security interest, lease, lien, adverse claim, levy, charge or other encumbrance
of any kind.
2.5 Finder's Fees. No investment banker, broker or finder
is entitled to a commission or fee from Parent or the Company in respect of this
Agreement based upon any arrangement or agreement made by or on behalf of the
Shareholder.
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ARTICLE III
REPRESENTATION AND WARRANTY OF PARENT
Parent represents and warrants to the Shareholder:
3.1 Corporate Power and Authority. Parent has all
requisite corporate power and authority to enter into this Agreement and to
perform its obligations hereunder. The execution, delivery and performance by
Parent of this Agreement and the consummation by Parent of the transactions
contemplated hereby have been duly authorized. This Agreement has been duly
executed and delivered by Parent and is a valid and binding agreement of Parent,
enforceable against it in accordance with its terms.
ARTICLE IV
COVENANTS AND AGREEMENTS
The Shareholder hereby covenants and agrees that:
4.1 No Proxies for or Encumbrance On Shares. Beginning on
the date hereof and continuing until this Agreement terminates pursuant to
Section 5.1, the Shareholder shall not, without the prior written consent of
Parent, directly or indirectly, (i) grant any proxies or enter into any voting
trust or other agreement or arrangement with respect to the voting of any Shares
or (ii) acquire, sell, assign, transfer, encumber or otherwise dispose of, or
enter into any contract, option or other arrangement or understanding with
respect to the direct or indirect acquisition or sale, assignment, transfer,
encumbrance or other disposition of, any Shares during the term of this
Agreement. The Shareholder shall not seek or solicit any such acquisition or
sale, assignment, transfer, encumbrance or other disposition or any such
contract, option or other arrangement or assignment or understanding and agrees
to notify Parent promptly and to provide all details requested by Parent if the
Shareholder shall be approached or solicited, directly or indirectly, by any
person with respect to any of the foregoing.
4.2 No Shopping. The Shareholder 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 the business, property or capital stock of the Company or any direct
or indirect subsidiary thereof, or any acquisition of a substantial equity
interest in, or a substantial amount of the assets of, the Company or any direct
or indirect subsidiary thereof, whether by merger, purchase of assets, tender
offer or other transaction or (ii) subject to the fiduciary duty under
applicable law of the Shareholder as an officer or director of the Company,
participate in any discussion or negotiations regarding, or furnish to any other
person any information with respect to, 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. The Shareholder shall promptly advise
Parent of the terms of any communications it may receive relating to any of the
foregoing.
4.3 Conduct of Shareholder. The Shareholder will not (i)
take, agree or commit to take any action that would make any representation and
warranty of the Shareholder hereunder inaccurate in any respect as of any time
prior to the termination of this Agreement or (ii) omit, or agree or commit to
omit, to take any action necessary to prevent any such representation or
warranty from being inaccurate in any respect at any such time.
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4.4 Update of SEC Filings. The Shareholder will update
all filings made by him with the Securities and Exchange Commission (the "SEC")
and file all documents required to be filed with the SEC in compliance with the
Exchange Act as are necessary to consummate the transactions contemplated by
this Agreement.
4.5 Disclosure. Without the prior written consent of the
other, neither Parent nor the Shareholder will, and Parent and the Shareholder
shall cause their respective representatives not to, make any release to the
press or other public disclosure, or make any statement to any employee (other
than those officers of the Company whose involvement in the merger is required
in order to consummate the transaction), competitor, customer, client or
supplier of the Company or any of its subsidiaries to any other person with
respect to the existence or contents of this Agreement, except for such public
disclosure as may be necessary, following consultation with legal counsel, for
the party proposing to make the disclosure not to be in violation of or default
under any applicable law, regulation or governmental order. If either party
proposes to make such disclosure, that party will discuss with the other party
its rationale for such disclosure and provide such party with the text of this
proposed disclosure, as far in advance of its disclosure as is practicable, and
will in good faith consult with and consider the suggestions of the other party
concerning the nature and scope of the information it proposes to disclose.
Notwithstanding the foregoing, the Shareholder hereby permits his identity and
ownership of the Shares and the nature of the commitments, arrangements and
understandings under this Agreement to be disclosed by the Company in its Proxy
Statement (and all related documents) relating to the Merger.
ARTICLE V
MISCELLANEOUS
5.1 Termination. Except as otherwise provided in Section
1.2 of this Agreement, this Agreement shall terminate (a) in the event the
Merger Agreement is terminated in accordance with its terms upon such
termination, and (b) in the event the Merger is consummated, upon the Effective
Time; provided, however, that no such termination shall relieve any party of
liability for a breach hereof prior to termination.
5.2 Specific Performance. The parties hereto agree that
the Parent may be irreparably damaged if for any reason the Shareholder failed
to perform any of his other obligations under this Agreement, and that the
Parent would not have an adequate remedy at law for money damages in such event.
Accordingly, the Parent shall be entitled to specific performance and injunctive
and other equitable relief to enforce the performance of this Agreement by the
Shareholder. This provision is without prejudice to any other rights that the
Parent may have against Shareholder for any failure to perform its obligations
under this Agreement.
5.3 Notices. All notices that are required or may be
given pursuant to this Agreement must be in writing and delivered personally, by
a recognized courier service, by a recognized overnight delivery service, by
telecopy or by registered or certified mail, postage prepaid, to the parties at
the following addresses (or to the attention of such other person or such other
address as any Party may provide to the other parties by notice in accordance
with this Section 5.3):
if to Parent: with copies to:
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Targetti Xxxxxx S.p.A. Xxxxxx & Xxxxx LLP
Xxx Xxxxxxx, 000 000 Xxxx Xxxxxx
00000 Xxxxxxx, Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Targetti Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
G. Xxxxx Xxxxxxx, Esq.
if to the Shareholder:
To the address listed in the preamble to this Agreement.
Any such notice or other communication will be deemed to have been
given upon actual receipt.
5.4 Further Assurances. Each party agrees to execute any
and all documents and to perform such other acts as may be necessary or
expedient to further the purposes of this Agreement and the transactions
contemplated hereby.
5.5 Counterparts. This Agreement may be executed in one
or more counterparts for the convenience of the parties hereto, all of which
together will constitute one and the same instrument.
5.6 Assignment. Neither this Agreement nor any of the
rights, interests or obligations hereunder may be assigned or delegated by the
Shareholder or Parent without the prior written consent of the other party and
any purported assignment or delegation in violation hereof shall be null and
void; except, that Parent may assign all or any part of its rights, interests
and obligations hereunder to any affiliate (as such term is defined in Rule
144(a)(1) under the Securities Act of 1933, as amended); provided, that no such
assignment by Parent shall relieve Parent of its obligations hereunder. This
Agreement is not intended to confer any rights or benefits on any Person other
than the parties hereto.
5.7 Consent to Jurisdiction and Service of Process. Each
party hereto hereby irrevocably submits to the nonexclusive jurisdiction of the
United States District Court for the Central District of California in any such
action, suit or proceeding, and agrees that any such action, suit or proceeding
shall be brought only in such court (and waives any objection based on forum non
conveniens or any other objection to venue therein), provided, however, that
such consent to jurisdiction is solely for the purpose referred to in this
Section 5.7 and shall not be deemed to be a general submission to the
jurisdiction of said courts or in the State of California other than for such
purpose. Nothing herein shall affect the right of any party to serve process in
any other manner permitted by law or to commence legal proceedings or otherwise
proceed against the other in any other jurisdiction. The parties hereby
irrevocably waive all right to a trial by jury in any action, proceeding or
counterclaim (whether based on contract, tort or otherwise) arising out of or
relating to this Agreement in the negotiation, administration, performance or
enforcement thereof.
5.8 Entire Agreement. This Agreement and the related
documents contained as Exhibits and Schedules hereto or expressly contemplated
hereby contain the entire understanding of the parties relating to the subject
matter hereof and supersede all prior written or oral and all contemporaneous
oral agreements and understandings relating to the subject matter hereof. This
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Agreement may not be modified or amended except in writing signed by each party
hereto. The Exhibits and Schedules to this Agreement are hereby incorporated by
reference into and made a part of this Agreement for all purposes.
5.9 Governing Law. This Agreement will be governed by and
construed and interpreted in accordance with the substantive laws of the State
of California, without giving effect to any conflicts of law rule or principle
that might require the application of the laws of another jurisdiction.
5.10 Neutral Construction. The parties to this Agreement
agree that this Agreement was negotiated fairly between them at arm's length and
that the final terms of this Agreement are the product of the parties'
negotiations. Each party represents and warrants that it has sought and received
legal counsel of its own choosing with regard to the contents of this Agreement
and the rights and obligations affected hereby. The parties agree that this
Agreement shall be deemed to have been jointly and equally drafted by them, and
that the provisions of this Agreement therefore should not be construed against
a party or parties on the grounds that the party or parties drafted or was more
responsible for drafting the provision(s).
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
TARGETTI XXXXXX S.P.A.
By /s/ Lorezo Targetti
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Name: Lorezo Targetti
Title: Managing Director
SHAREHOLDER:
XXXXXX X. XXXXXXXXXX,
AS TRUSTEE OF THE XXXXXXXXXX
FAMILY TRUST
By /s/ Xxxxxx X. Xxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx, Trustee
