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EXHIBIT 99.1
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SHAREHOLDER VOTING AGREEMENT
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THIS SHAREHOLDER VOTING AGREEMENT (this "AGREEMENT"), dated as
of August 21, 2001, by and between Roadway Corporation, a Delaware corporation
("PARENT"), and Xxxxxx X. Xxxxxx (the "SHAREHOLDER").
W I T N E S S E T H:
A. Simultaneously with the execution of this Agreement,
Parent, Lion Corp., a Pennsylvania corporation and a wholly-owned subsidiary of
Parent ("MERGER SUB"), and Xxxxxx Industries, Inc., a Pennsylvania corporation
(the "COMPANY"), have entered into an Agreement and Plan of Merger dated the
date hereof (the "MERGER AGREEMENT"), which provides, among other things, for
the merger (the "MERGER") of Merger Sub with and into the Company upon the terms
and subject to the conditions set forth therein.
B. The Shareholder is the beneficial owner of, and has the
sole right to vote and dispose of, 4,170,189 shares of the Company's common
stock, par value $1.00 per share (the "COMPANY COMMON STOCK").
C. As an inducement and a condition to its execution and
delivery of the Merger Agreement and performance of the obligations set forth
therein, including the Merger, Parent has required that Shareholder enter into
this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual promises, representations, warranties, respective covenants and
agreements of the parties contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
each of the parties hereto, the parties hereto, intending to be legally bound
hereby, agree as follows:
CERTAIN DEFINITIONS
CAPITALIZED TERMS. Capitalized terms used in this Agreement and not otherwise
defined herein have the respective meanings ascribed to such terms in the Merger
Agreement.
OTHER DEFINITIONS. For the purposes of this Agreement:
"AFFILIATE" means, with respect to any specified Person, any
Person that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, the Person
specified. For purposes of this Agreement, with respect to the Shareholder,
"Affiliate" does not include the Company and the Persons that directly, or
indirectly through one or more intermediaries, are controlled by the Company.
"BENEFICIAL OWNER" or "Beneficial Ownership" or "Beneficially
Owned" with respect to any securities means having "beneficial ownership" of
such securities as determined pursuant to Rule 13d-3 under the Exchange Act,
including pursuant to any agreement,
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arrangement or understanding, whether or not in writing. Without duplicative
counting of the same securities by the same holder, securities Beneficially
Owned by a Person includes securities Beneficially Owned by all Affiliates of
such Person and all other persons with whom such Person would constitute a
"group" within the meaning of Section 13(d) of the Exchange Act and the rules
promulgated thereunder.
"COMPANY COMMON STOCK" includes all shares of capital stock or
other voting securities into which shares of Company Common Stock may be
reclassified, sub-divided, consolidated or converted and any rights and benefits
arising therefrom including any extraordinary distributions of securities which
may be declared in respect of the shares of Company Common Stock and entitled to
vote in respect of the matters contemplated by Article II of this Agreement.
"OWNED SHARES" means the Shareholder Shares (as defined in
Section 3.1(c)), together with any other shares of Company Common Stock or any
other securities of the Company entitled, or which may be entitled, to vote upon
any of the matters referred to in Section 2.1 hereof that may hereafter be owned
by the Shareholder; PROVIDED, HOWEVER, that, notwithstanding the foregoing, in
no event will the number of shares of Company Common Stock that are the subject
of this Agreement represent more than 19.9% of the votes that all shareholders
of the Company would be entitled to cast in an election of directors of the
Company. As used in this Agreement, the term "Owned Shares" means the number of
the shares of Company Common Stock as modified by the proviso contained in the
immediately preceding sentence.
"PERSON" means any individual, corporation (including any
non-profit corporation), general or limited partnership, limited liability
company, joint venture, association, trust, estate, unincorporated organization
or other entity, including any Governmental Entity.
"REPRESENTATIVE" means, with respect to any particular Person,
any officer, director, employee, agent, consultant, advisor or other
representative of such Person (including legal counsel, accountants, and
financial advisors).
"TRANSFER" means, with respect to any security, the sale,
transfer, pledge, hypothecation, encumbrance, assignment or disposition of such
security or the Beneficial Ownership thereof, the offer to make such a sale,
transfer or other disposition, and each option, agreement, arrangement or
understanding, whether or not in writing, to effect any of the foregoing.
VOTING AGREEMENT AND PROXY
AGREEMENT TO VOTE. Upon the terms and subject to the conditions hereof, the
Shareholder irrevocably and unconditionally agrees that, until this Agreement is
terminated pursuant to Section 5.1 hereof, at any meeting (whether annual or
special, and whether or not an adjourned or postponed meeting) of the Company's
Shareholders, however called, or in connection with any written consent of the
Company's Shareholders, the Shareholder shall vote, or cause to be voted
(including by written consent, if applicable) all of his Owned Shares (i) in
favor of the adoption and approval of the Merger Agreement and the Merger, (ii)
against any Acquisition Proposal and (iii) against any proposed action by the
Company, the Company's Shareholders or any other Person the result of which
action could prevent or materially delay completion of the Merger. The
Shareholder shall not enter into any agreement or commitment with any Person the
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effect of which would be inconsistent with or violative of the provisions and
agreements contained in this Article II.
IRREVOCABLE PROXY.
THE SHAREHOLDER HEREBY GRANTS TO, AND APPOINTS PARENT AND ANY
DESIGNEE OF PARENT, EACH OF THEM INDIVIDUALLY, SUCH SHAREHOLDER'S IRREVOCABLE
PROXY AND ATTORNEY-IN-FACT (WITH FULL POWER OF SUBSTITUTION AND RESUBSTITUTION)
TO VOTE THE OWNED SHARES OF SUCH SHAREHOLDER (INCLUDING BY WRITTEN CONSENT) (I)
IN FAVOR OF THE ADOPTION AND APPROVAL OF THE MERGER AGREEMENT AND THE MERGER,
(II) AGAINST ANY ACQUISITION PROPOSAL AND (III) AGAINST ANY PROPOSED ACTION BY
THE COMPANY, THE COMPANY'S SHAREHOLDERS OR ANY OTHER PERSON THE RESULT OF WHICH
ACTION COULD PREVENT OR MATERIALLY DELAY COMPLETION OF THE MERGER. THE
SHAREHOLDER SHALL TAKE SUCH FURTHER ACTION OR EXECUTE SUCH OTHER INSTRUMENTS AS
MAY BE NECESSARY TO EFFECTUATE THE INTENT OF THIS PROXY. THE SHAREHOLDER HEREBY
REVOKES ANY PROXIES PREVIOUSLY GRANTED BY SUCH SHAREHOLDER WITH RESPECT TO THE
SHAREHOLDER'S OWNED SHARES. THE PROXY GRANTED IN THIS SECTION 2.2 WILL
AUTOMATICALLY EXPIRE UPON THE TERMINATION OF THIS AGREEMENT. THIS PROXY IS
IRREVOCABLE AND THE APPOINTMENT IS COUPLED WITH AN INTEREST, HAVING BEEN GRANTED
IN CONSIDERATION OF PARENT ENTERING INTO THIS AGREEMENT AND THE MERGER
AGREEMENT, AND INCURRING CERTAIN RELATED FEES AND EXPENSES.
REPRESENTATIONS AND WARRANTIES
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER.
The Shareholder represents and warrants to Parent that the
following statements are as of the date of this Agreement, and will be as of the
date of the Shareholders Meeting, true and correct:
The Shareholder has the authority to execute, deliver and perform this Agreement
without the necessity of obtaining any third party consent (including the
consent of the Shareholder's spouse), approval, authorization or waiver, or
giving of any notice or otherwise.
This Agreement has been duly and validly executed and delivered by the
Shareholder and constitutes a valid and binding obligation of the Shareholder
enforceable against the Shareholder in accordance with its terms.
As of the date of this Agreement, the Shareholder is the record and beneficial
owner of 4,170,189 shares of Company Common Stock (the "SHAREHOLDER SHARES")
and, except as provided in this Agreement or by applicable Law, has full and
unrestricted power to dispose of and vote all of the Shareholder Shares. The
Shareholder has good and valid title to the Shareholder Shares, free and clear
of any and all Liens, proxies, voting agreements and demands of any nature or
kind whatsoever, other than those created by this Agreement. As of the date of
this Agreement, the Shareholder Shares constitute all of the capital stock of
the Company that is Beneficially Owned by the Shareholder and, except for the
Shareholder Shares, the 175,000 nonqualified stock options to purchase shares of
Company Common Stock held by the
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Shareholder and the shares of Company Common Stock currently held by exchange
funds, the Shareholder does not Beneficially Own or have any right to acquire
(whether currently, upon lapse of time, following the satisfaction of any
conditions, upon the occurrence of any event or any combination of the
foregoing) any shares of Company Common Stock or any other capital stock of the
Company, or any securities convertible into shares of Company Common Stock or
other capital stock of the Company.
Except for this Agreement, there are no voting trusts or other agreements or
understandings, including, without limitation, any proxies, in effect governing
the voting of the Shareholder Shares. The Shareholder does not hold, and has not
issued, any proxies, or securities convertible into or exchangeable for or any
options, warrants, or other rights to purchase or subscribe for any shares of
Company Common Stock.
None of the execution and delivery of this Agreement by the Shareholder, the
consummation by the Shareholder of the transactions contemplated hereby or
compliance by the Shareholder with any of the provisions hereof will (i) 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 note, loan
agreement, bond, mortgage, indenture, license, contract, commitment,
arrangement, understanding, agreement or other instrument or obligation of any
kind to which the Shareholder is a party or by which the Shareholder or any of
his properties or assets (including the Shareholder Shares) may be bound or (ii)
violate any order, writ, injunction, decree, judgment, statute, rule or
regulation applicable to the Shareholder or any of his properties or assets
(including the Shareholder Shares).
No broker, investment banker, financial advisor or other Person is entitled to
any broker's, finder's, financial adviser's or other similar fee or commission
in connection with the transactions contemplated hereby based upon arrangements
made by or on behalf of the Shareholder.
The Shareholder understands and acknowledges that Parent is entering into the
Merger Agreement and is incurring the obligations set forth therein in reliance
upon the execution and delivery of this Agreement by the Shareholder.
The Shareholder is entering into this Agreement and will perform Shareholder's
obligations hereunder solely in Shareholder's capacity as a Shareholder of the
Company Common Stock.
REPRESENTATIONS AND WARRANTIES OF PARENT.
Parent represents and warrants to the Shareholder that the
following statements are as of the date of this Agreement, and will be as of the
date of the Shareholders Meeting, true and correct:
Parent is a corporation duly incorporated and validly existing under the laws of
the State of Delaware.
Parent has all necessary corporate power and authority to enter into this
Agreement and to perform all of its obligations hereunder. The execution,
delivery and performance of this Agreement and the Merger Agreement by Parent
and the consummation of the transactions contemplated hereby and thereby have
been duly and validly approved by the board of directors of Parent and no other
corporate proceedings on the part of Parent are necessary to authorize the
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execution, delivery and performance of this Agreement or the Merger Agreement or
the consummation of the transactions contemplated hereby or thereby.
This Agreement has been duly and validly executed and delivered by Parent and
constitutes a valid and binding obligation of Parent enforceable against Parent
in accordance with its terms.
None of the execution and delivery of this Agreement by Parent, the consummation
by Parent of the transactions contemplated hereby or compliance by Parent with
any of the provisions hereof will (i) 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 note, loan agreement, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding, agreement
or other instrument or obligation of any kind to which Parent is a party or by
which Parent or any of its properties or assets may be bound or (ii) violate any
order, writ, injunction, decree, judgment, statute, rule or regulation
applicable to Parent or any of its properties or assets.
COVENANTS OF THE SHAREHOLDER
GENERAL. The Shareholder covenants and agrees with Parent that, during the
period commencing on the date hereof and ending on the date this Agreement is
terminated under Article V hereof:
The Shareholder shall not, directly or indirectly, Transfer to any Person any or
all of the Owned Shares.
The Shareholder shall promptly notify Parent in writing upon any representation
or warranty of the Shareholder contained in this Agreement becoming untrue or
incorrect in any material respect during the term of this Agreement and, for the
purposes of this provision, each representation and warranty shall be deemed to
be given at and as of all times during such term (irrespective of any language
which suggests that it is only being given as at a particular date).
The Shareholder shall execute and deliver such other documents and instruments
and take such further actions as may be necessary in order to ensure that Parent
receives the full benefit of this Agreement.
The Shareholder waives any dissenters' rights he may have under applicable Law
with respect to the Merger and the transactions contemplated thereby.
STANDSTILL OBLIGATIONS. The Shareholder covenants and agrees with Parent that,
during the period commencing on the date hereof and ending on the date this
Agreement is terminated under Article V hereof:
The Shareholder shall not, nor shall the Shareholder permit any Affiliate of the
Shareholder to, nor shall the Shareholder act in concert with or permit any such
Affiliate to act in concert with any Person to, solicit or participate in any
solicitation of proxies with respect to any shares of Company Common Stock, nor
shall they seek to advise or influence any Person with respect to the voting of
any shares of Company Common Stock, other than to recommend that Shareholders of
the Company vote in favor of the Merger and the Merger Agreement and otherwise
as expressly provided in Article II of this Agreement.
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The Shareholder shall not, nor shall the Shareholder permit any Affiliate of the
Shareholder to, nor shall the Shareholder act in concert with or permit any such
Affiliate to act in concert with any Person to, deposit any shares of Company
Common Stock in a voting trust or subject any shares of Company Common Stock to
any arrangement or agreement with any Person with respect to the voting of such
shares of Company Common Stock, except as provided by Article II of this
Agreement.
The Shareholder shall not, nor shall the Shareholder permit any Affiliate of the
Shareholder to, nor shall the Shareholder act in concert with or permit any such
Affiliate to act in concert with any Person to, otherwise act, alone or in
concert with others, to seek control of the management, Board of Directors or
policies of the Company.
The Shareholder shall not, nor shall the Shareholder authorize or permit any of
his Affiliates to, nor shall the Shareholder act in concert with or permit any
such Affiliate to act in concert with any Person, nor shall he permit any
Representative of the Shareholder or any such Affiliate, directly or indirectly,
violate any of the provisions of Section 4.2 of the Merger Agreement.
The Shareholder shall not request a waiver of any of the terms or provisions
hereof in any manner that would require a public disclosure by Parent or the
Company.
Notwithstanding the foregoing provisions of this Section 4.2, Parent
acknowledges that Shareholder is a director on the Company's Board of Directors
and, subject to the terms of the Merger Agreement, he may act in his capacity as
director of the Company in accordance with his fiduciary duties to the Company
and its Shareholders.
TERMINATION
TERMINATION. This Agreement will terminate upon the earlier of (i) the Effective
Time or (ii) the termination of the Merger Agreement.
EFFECT OF TERMINATION. All provisions of this Agreement will survive the
Effective Time in accordance with their respective terms; provided, however,
that this Agreement, and all rights and obligations of the parties hereunder,
will terminate upon the date upon which the Merger Agreement is terminated in
accordance with its terms.
GENERAL
NOTICES. All notices, requests, claims, demands and other communications under
this Agreement must be in writing and will be deemed given if delivered
personally, telecopied (which is confirmed) or sent by a nationally recognized
overnight courier service (providing proof of delivery) to the parties at the
following addresses (or at such other address for a party as is specified by
like notice):
if to the Shareholder, marked as personal and confidential:
c/x Xxxxxx Industries, Inc.
000 Xxxxx Xxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxx, XX 00000-0000
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Attention: Xxxxxx X. Xxxxxx
Facsimile No.:
with a copy to (which shall not constitute notice):
Xxxxxx & Xxxxx LLP
Xxx Xxxxx Xxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxxx
Facsimile No.: (000) 000-0000
if to Parent:
Roadway Corporation
0000 Xxxxx Xxxx.
X.X. Xxx. 000
Xxxxx, XX 00000-0000
Attention: Xxxx Xxxxxxxxxx, General Counsel
Facsimile No.: (000) 000-0000
with a copy to (which shall not constitute notice):
Xxxxx, Day, Xxxxxx & Xxxxx
North Point
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
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NO THIRD-PARTY BENEFICIARIES. This Agreement is not intended to confer
third-party beneficiary rights upon any Person.
GOVERNING LAW. This Agreement is to be governed by and construed in accordance
with the General Corporation Law of the State of Ohio to the fullest extent
possible, without giving effect to the principles of conflicts or choice of law
thereof or any other jurisdiction.
SEVERABILITY. If any one or more of the provisions contained herein, or the
application thereof in any circumstances, is held to be invalid, illegal or
unenforceable in any respect for any reason under any present or future law,
public policy or order, (i) such provision will be fully severable and (ii) this
Agreement is to be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part hereof. Upon such
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the parties shall negotiate in good faith with a view to the
substitution therefor of a suitable and equitable solution in order to carry out
to the maximum extent possible, so far as may be valid, legal and enforceable,
the intent and purpose of such invalid provision; PROVIDED, HOWEVER, that the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein will not be in any way
impaired thereby, it being intended that all of the rights and privileges of the
parties hereto will be enforceable to the fullest extent permitted by law.
ASSIGNMENT. Except for any assignment by Parent, in whole or in part, to a
direct or indirect subsidiary of Parent (provided that any such subsidiary
agrees in writing to be bound by and liable for all of the terms, conditions and
provisions contained herein that would otherwise be applicable to Parent and
provided further that Parent shall remain liable for all of its duties and
obligations hereunder in the event such subsidiary shall fail to perform
hereunder), neither this Agreement nor the rights or the obligations of either
party hereto are assignable in whole or in part (whether by operation of law or
otherwise), without the written consent of the other party and any attempt to do
so in contravention of this Section 6.5 will be void.
SUCCESSORS AND ASSIGNS. This Agreement inures to the benefit of and is binding
upon the parties hereto and their respective successors and permitted assigns.
INTERPRETATION. When a reference is made in this Agreement to Sections, such
reference shall be to a Section of this Agreement unless otherwise indicated.
Whenever the words "include," "includes" or "including" are used in this
Agreement, they are deemed to be followed by the words "without limitation." The
words "hereof," "herein" and "herewith" and words of similar import, unless
otherwise stated, are to be construed to refer to this Agreement as a whole and
not to any particular provision of this Agreement. The definitions contained in
this Agreement are applicable to the singular as well as the plural forms of
such terms and to the masculine as well as to the feminine and neuter genders of
such term. Any agreement or instrument defined or referred to herein or in any
agreement or instrument that is referred to herein means such agreement or
instrument as from time to time amended, modified or supplemented and
attachments thereto and instruments incorporated therein. References to a Person
are also to its successors and permitted assigns. The parties have participated
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement is to
be construed as if drafted jointly by the parties and no presumption or burden
of proof will arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement. Any reference to any
federal, state, local or foreign statute or
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law is deemed to also to refer to any amendments thereto and all rules and
regulations promulgated thereunder, unless the context requires otherwise.
AMENDMENTS, WAIVERS, ETC. This Agreement may not be amended, changed,
supplemented, waived or otherwise modified or terminated except by an instrument
in writing signed by Parent and the Shareholder.
FEES AND EXPENSES. Except as expressly provided in this Agreement or the Merger
Agreement, each of the parties is responsible for his or its own fees and
expenses (including, without limitation, the fees and expenses of financial
consultants, investment bankers, accountants and counsel) in connection with the
entry into of this Agreement and the consummation of the transactions
contemplated hereby.
ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior
agreements, understandings, negotiations, representations and warranties, and
discussions, whether oral or written, among the parties hereto, with respect to
the subject matter hereof.
SPECIFIC PERFORMANCE. The parties acknowledge that money damages are not an
adequate remedy for violations of this Agreement and that any party may, in its
sole discretion, apply to a court of competent jurisdiction for specific
performance or injunctive or such other relief as such court may deem just and
proper in order to enforce this Agreement or prevent any violation hereof and,
to the extent permitted by applicable Law, each party waives any objection to
the imposition of such relief.
REMEDIES CUMULATIVE. All rights, powers and remedies provided under this
Agreement or otherwise available in respect hereof at law or in equity are to be
cumulative and not alternative, and the exercise or beginning of the exercise of
any thereof by any party will not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
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
his or its obligations hereunder, and any custom or practice of the parties at
variance with the terms hereof, will not constitute a waiver by such party of
his or its right to exercise any such or other rights, power or remedy or to
demand such compliance.
COUNTERPARTS. This Agreement may be executed in counterparts, each of which is
deemed an original, but all of which together constitute one and the same
instrument and become effective when one or more counterparts have been signed
by each of the parties and delivered to the other parties.
EXECUTION. This Agreement may be executed by facsimile signatures by any party
and such signature is deemed binding for all purposes hereof, without delivery
of an original signature being thereafter required.
JURISDICTION. Each of the parties hereto irrevocably agrees that any action,
suit, claim or other legal proceeding with respect to this Agreement or in
respect of the transactions contemplated hereby brought by any other party
hereto or its successors or assigns shall be brought and determined in any state
or federal court located in the State of Ohio or any appeals courts thereof (the
"OHIO COURTS"), and each of the parties hereto irrevocably submits with regard
to any such
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proceeding for itself and in respect to its property, generally and
unconditionally, to the exclusive jurisdiction of the Ohio Courts. Each of the
parties hereto irrevocably waives, and agrees not to assert, by way of motion,
as a defense, counterclaim or otherwise, in any action or proceeding with
respect to this Agreement, (a) any claim that it is not personally subject to
the jurisdiction of the Ohio Courts for any reason, (b) that it or its property
is exempt or immune from jurisdiction of any Ohio Court or from any legal
process commenced in any Ohio Court (whether through service of notice,
attachment before judgment, attachment in aid of execution of judgment,
execution of judgment or otherwise) and (c) to the fullest extent permitted by
applicable law, that (i) the proceeding in any Ohio Court is brought in an
inconvenient forum, (ii) the venue of such proceeding is improper or (iii) this
Agreement, or the subject matter hereof, may not be enforced in or by a Ohio
Court. Notwithstanding the foregoing, each of the parties hereto agrees that the
other party shall have the right to bring any action or proceeding for
enforcement of a judgment entered by the Ohio Courts in any other court or
jurisdiction.
EFFECTIVENESS. It is a condition precedent to the effectiveness of this
Agreement that the Merger Agreement has been duly adopted and approved by the
Boards of Directors of the parties thereto and that the Merger Agreement has
been executed and delivered by the parties thereto.
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IN WITNESS WHEREOF, each party hereto has caused this
Shareholder Voting Agreement to be signed as of the date first above written.
ROADWAY CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Chairman and Chief Executive Officer
/s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxx
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