Exhibit 10.1
NOMINATING AGREEMENT
This NOMINATING AGREEMENT (this "AGREEMENT") is made as of November 14,
2004 between Xxxxxxx Company, a Michigan corporation ("BUYER"), and the
undersigned shareholder ("SHAREHOLDER") of Agis Industries (1983) Ltd., an
Israeli public company (the "COMPANY").
RECITALS:
WHEREAS, concurrently with the execution and delivery of this Agreement,
Buyer, Xxxxxxx Xxxxxx Opportunities, Ltd., a private Israeli company and
indirect wholly owned subsidiary of Buyer ("MERGER SUB"), and the Company are
entering into an Agreement and Plan of Merger of even date herewith (the "MERGER
AGREEMENT"), pursuant to which Merger Sub will be merged with and into the
Company (the "MERGER");
WHEREAS, concurrently with the execution and delivery of this Agreement,
Buyer and Shareholder are entering into (i) an Undertaking Agreement (the
"UNDERTAKING AGREEMENT"), pursuant to which Shareholder agrees to vote in favor
of the transactions contemplated by the Merger Agreement and (ii) a Lockup
Agreement (the "LOCKUP AGREEMENT"), pursuant to which Shareholder agrees, for a
specific period of time, not to sell shares of Buyer common stock that
Shareholder acquired upon the consummation of the Merger;
WHEREAS, it is a condition to the willingness of Shareholder to enter into
the Undertaking Agreement and the Lockup Agreement that Buyer provide
Shareholder with the right to designate directors to the Board of Directors of
Buyer in the manner set forth herein at the time of the consummation of the
transactions contemplated by the Merger Agreement; and
WHEREAS, in order to induce Shareholder to enter into the Undertaking
Agreement and the Lockup Agreement, Buyer has agreed to enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and of the
covenants and agreements set forth herein, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Definitions.
(a) Capitalized terms used herein and not otherwise defined shall have the
meaning of set forth in the Merger Agreement.
(b) "OWN" with respect to any securities means actual ownership by the
Shareholder (it being understood that any shares of Buyer common stock (i)
beneficially owned by Shareholder but held in nominee or street name or (ii)
transferred by Shareholder to a family member, trust or other entity controlled
by Shareholder solely for estate or tax planning purposes shall be deemed Owned
by Shareholder for purposes of this Agreement).
(c) "BOARD" means the Board of Directors of Buyer.
(d) "DIRECTOR" means a member of the Board.
(e) "INDEPENDENT" has the meaning set forth in the rules of the Nasdaq
Stock Market.
2. Director Nomination Rights.
(a) On the Closing Date, the Board shall appoint Shareholder and one
Independent candidate designated by Shareholder to the Board (provided, that if
such Independent candidate has not been designated by Shareholder on or prior to
the Closing Date, the Board shall appoint to the Board such Independent
candidate when subsequently so designated by Shareholder). The parties hereto
acknowledge and agree that the Shareholder shall be appointed to the Board to
serve for a term expiring at Buyer's 2007 annual meeting term and such
Independent candidate shall be appointed to the Board to serve for a term
expiring at Buyer's 2006 annual meeting in order to comply with the requirements
for staggered terms and apportioned classes of Directors set forth in Buyer's
By-laws. Notwithstanding the foregoing, the appointment of Shareholder or any
Shareholder-designated candidate pursuant to this Section 2(a), (i) shall be
subject to the approval process of Buyer's Nominating & Governance Committee,
consistent with Buyer's Corporate Governance Guidelines, and (ii) must have the
requisite qualifications as determined in good faith by the Nominating &
Governance Committee; provided, however, that if for any reason the conditions
set forth in clauses (i) and (ii) are not satisfied, Shareholder shall have the
right to designate an alternate person or persons to be so nominated. Nothing in
this Section 2 shall prevent the Board from acting in good faith in accordance
with its Corporate Governance Guidelines while giving due consideration to the
intent of this Agreement.
(b) After the Closing Date, should there exist or occur any vacancy on the
Board as a result of death, disability, retirement, resignation, removal or any
other reason, including if any current Director shall not be nominated for
re-election (other than any vacancy resulting from the death, disability,
retirement, resignation or removal of Shareholder or any Shareholder Director),
the Board shall appoint one additional Independent candidate designated by
Shareholder to the Board to serve for a term of office continuing only until the
next election of the class of Directors in which the vacancy occurs. The parties
hereto acknowledge and agree that such Independent candidate shall be nominated
to the same class as the Director that such Independent candidate is replacing.
Notwithstanding the foregoing, the appointment of a Shareholder-designated
candidate pursuant to this Section 2(b), (i) shall be subject to the approval
process of Buyer's Nominating & Governance Committee, consistent with Buyer's
Corporate Governance Guidelines, and (ii) must have the requisite qualifications
as determined in good faith by the Nominating & Governance Committee; provided,
however, that if for any reason the conditions set forth in clauses (i) and (ii)
are not satisfied, Shareholder shall have the right to designate an alternate
person or persons to be so nominated. Nothing in this Section 2 shall prevent
the Board from acting in good faith in accordance with its Corporate Governance
Guidelines while giving due consideration to the intent of this Agreement.
(c) Following the initial appointments referenced in Sections 2(a) and (b)
above,
Buyer shall nominate for the Board at the next applicable annual meeting of the
shareholders of Buyer, any Independent candidates designated by Shareholder
pursuant to the terms of this Agreement (each such designated Independent
candidate a "SHAREHOLDER DIRECTOR" and collectively, the "SHAREHOLDER
DIRECTORS"); provided, however, that Buyer shall only be obligated to nominate
any Shareholder Director at the annual meeting at which the term of the class of
Directors to which any Shareholder Director belongs has expired and such class
of Directors is up for election. In accordance with its Corporate Governance
Guidelines, the Board shall submit in writing the name of any Shareholder
Director to the Buyer Nominating & Governance Committee for election to the
Board. The Company shall use its reasonable best efforts (i) to cause the Buyer
Nominating & Governance Committee to include the name of the Shareholder
Directors so submitted among its nominees for election to the Board and (ii) to
cause the Board to unanimously recommend that the shareholders of Buyer vote in
favor of the Shareholder Directors; provided, however, that if for any reason
the conditions set forth in clauses (i) and (ii) are not satisfied, Shareholder
shall have the right to designate an alternate person or persons to be so
nominated. Nothing in this Section 2 shall prevent the Board from acting in good
faith in accordance with its Corporate Governance Guidelines while giving due
consideration to the intent of this Agreement.
(d) Following the initial appointment of Shareholder referenced in Section
2(a) above, Buyer shall nominate Shareholder at each applicable annual meeting
of the shareholders of Buyer to serve on the Board; provided, however, the Buyer
shall only be obligated to nominate the Shareholder at each annual meeting at
which the term of the class of Directors to which Shareholder belongs has
expired and such class of Directors is up for election. In accordance with its
Corporate Governance Guidelines, the Board shall submit in writing Shareholder's
name to the Buyer Nominating & Governance Committee for election to the Board.
The Company shall use its reasonable best efforts (i) to cause the Buyer
Nominating & Governance Committee to include the Shareholder so submitted among
its nominees for election to the Board and (ii) to cause the Board to
unanimously recommend that the shareholders of Buyer to vote in favor of
Shareholder. Nothing in this Section 2 shall prevent the Board from acting in
good faith in accordance with its Corporate Governance Guidelines while giving
due consideration to the intent of this Agreement.
(e) The Shareholder Directors (but not the Shareholder), will each be
invited to serve on at least one committee of the Board while serving as
Directors, in accordance with and subject to their respective qualifications.
The parties hereto acknowledge and agree that so long as each applicable
Shareholder Director (i) submits to the proper approval process with the
Nominating & Governance Committee, consistent with Buyer's Corporate Governance
Guidelines and (ii) has the requisite qualifications as determined in good faith
by the Nominating & Governance Committee, one of the Shareholder Directors will
be invited to serve on the Audit Committee of the Board while serving as a
Director and one of the Shareholder Directors will be invited to serve on the
Compensation Committee of the Board while serving as a Director.
(f) Subject to Sections 2(c), 2(g), 3, and 5, in the event any Shareholder
Director dies, becomes disabled or resigns, retires or is removed from the
Board, Shareholder shall have the right to designate a replacement director to
fill such vacancy to serve for a term of office
continuing only until the next election of the class of Directors in which the
vacancy occurs and such replacement director shall be considered a "Shareholder
Director" for purposes of this Agreement.
(g) (i) The rights of Shareholder to designate any Shareholder Director,
the right of any Shareholder Director to sit on the Board, and the obligations
of the Board and Buyer pursuant to this Section 2 with respect to the
Shareholder Directors shall terminate in the event that Shareholder both (A)
ceases to Own 9% of the outstanding shares of Buyer common stock and (B) ceases
to Own 9,000,000 shares of Buyer common stock.
(ii) All rights of Shareholder, including without limitation, the
right of Shareholder to sit on the Board, and the obligations of the Board and
Buyer pursuant to this Section 2, shall terminate in the event Shareholder
ceases to Own 5,000,000 shares of Buyer common stock.
3. Resignation of Directors.
(a) Each Shareholder Director shall tender his or her resignation from the
Board, (i) at the time Shareholder both (A) ceases to Own 9% of the outstanding
shares of Buyer common stock and (B) ceases to Own 9,000,000 shares of Buyer
common stock, or (ii) if such person is no longer entitled to serve on the Board
pursuant to the terms hereof. In the event Buyer shall not have accepted such
resignation offer within 30 days following the date thereof, the Shareholder
Director shall continue to serve on the Board until the next election of the
class of Directors to which such Shareholder Director belongs. Buyer's
obligations to nominate and recommend each Shareholder Director is conditioned
upon each such Shareholder Director's execution and delivery to Buyer of a
written agreement to be bound by the terms of this Section 3.
(b) Shareholder shall tender his resignation from the Board, (i) at the
time Shareholder ceases to Own 5,000,000 shares of Buyer common stock, or (ii)
if he is no longer entitled to serve on the Board pursuant to the terms hereof.
In the event Buyer shall not have accepted such resignation offer within 30 days
following the date thereof, Shareholder shall continue to serve on the Board
until the next election of the class of Directors to which Shareholder belongs.
4. Equal Treatment. Buyer shall provide the same compensation and rights
and benefits of indemnity to the Shareholder Directors as are provided to other
non-employee directors.
5. Limitations on Nomination Rights. Notwithstanding anything contained in
this Agreement to the contrary, Shareholder shall not be entitled to designate
any Shareholder Directors if the nomination of such Shareholder Directors would
violate applicable law or would result in a breach by the Board of its fiduciary
duties to Buyer and its shareholders, the approval process of the Nominating &
Governance Committee, or the Board's Corporate Governance Guidelines while
giving due consideration to the intent of this Agreement; provided, however,
that the foregoing shall not affect the Shareholder's right to designate an
alternate person or persons to be so nominated.
6. Amendments and Waivers.
Any provision of this Agreement may be amended or waived if, and only if,
such amendment or waiver is in writing and is signed, in the case of an
amendment, by each party to this Agreement, or in the case of a waiver, by the
party against whom the waiver is to be effective.
No failure or delay by any party in exercising any right or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. To the maximum extent permitted by law,
(a) no waiver that may be given by a party shall be applicable except in the
specific instance for which it was given and (b) no notice to or demand on one
party shall be deemed to be a waiver of any obligation of such party or the
right of the party giving such notice or demand to take further action without
notice or demand.
7. Assignment. This Agreement may not be assigned by either party hereto
without the prior written consent of the other party. Subject to the foregoing
sentence, all of the terms and provisions of this Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
executors, heirs, personal representatives, successors and assigns.
8. Entire Agreement. This Agreement and the documents, instruments and
other agreements specifically referred to herein or delivered pursuant hereto,
set forth the entire understanding of the parties with respect to the subject
matter hereof. Any and all previous agreements and understandings between or
among the parties regarding the subject matter hereof, whether written or oral,
are superseded by this Agreement.
9. Notices. Any notice, request, demand, waiver, consent, approval or
other communication which is required or permitted hereunder shall be in writing
and shall be deemed given; (a) on the date established by the sender as having
been delivered personally; (b) on the date delivered by a private courier as
established by the sender by evidence obtained from the courier; (c) on the date
sent by facsimile, with confirmation of transmission, if sent during normal
business hours of the recipient, if not, then on the next business day; or (d)
on the fifth day after the date mailed, by certified or registered mail, return
receipt requested, postage prepaid. Such communications, to be valid, must be
addressed as follows:
If to Buyer, to:
Xxxxxxx Company
000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Chief Executive Officer
Telecopier: 000-000-0000
and
Xxxxxxx Company
000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Vice President and General Counsel
Telecopier: 000-000-0000
with a copy to:
Xxxxxx, Xxxxx & Xxxxxxx LLP
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Telecopier: 000-000-0000
If to Shareholder:
Xxxxx Xxxxx
00 Xxxx Xxxxxx
Xxxx-Xxxx 00000
Xxxxxx
Telecopier: 972-3-577-3500
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxx, Esq.
Xxxxxx X. Xxxxxxxxx, Esq.
Telecopier: 000-000-0000
and
Rosenberg, Hacohen, Xxxxxxx & Ephrat
00 Xxxxx Xxxxxxxxxx Xxxxxx
Xxx-Xxxx 00000
Xxxxxx
Attn: Xxx Xxxxxxx, Adv.
Telecopier: 972-3-766-6567
or to such other address or to the attention of such Person or Persons as the
recipient party has specified by prior written notice to the sending party (or
in the case of counsel, to such other readily ascertainable business address as
such counsel may hereafter maintain). If more than one method for sending notice
as set forth above is used, the earliest notice date established as set forth
above shall control.
10. Captions. All captions contained in this Agreement are for convenience
of reference only, do not form a part of this Agreement and shall not affect in
any way the meaning or interpretation of this Agreement.
11. Counterparts. This Agreement may be executed in counterparts, and
either party may execute such counterpart, both of which when executed and
delivered shall be deemed to be an original and which counterparts taken
together shall constitute but one and the same instrument.
12. Severability; Enforcement. Any provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall be ineffective to the extent
of such invalidity or unenforceability without invalidating or rendering
unenforceable the remaining provisions hereof, and any such invalidity or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
13. Specific Performance. The parties hereto agree that irreparable damage
would occur in the event that any provision of this Agreement were not performed
in accordance with its specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to seek an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any court of the United States or any state
having jurisdiction without the necessity of demonstrating damages or posting a
bond, this being in addition to any other remedy to which they are entitled at
law or in equity.
14. Consent to Jurisdiction. Each party irrevocably submits to the
exclusive jurisdiction of any court of competent jurisdiction in the State of
New York for the purposes of any suit, action or other proceeding arising out of
this Agreement or any transaction contemplated hereby. Each party agrees to
commence any such action, suit or proceeding in any court of competent
jurisdiction in the State of New York. Each party further agrees that service of
any process, summons, notice or document by U.S. registered mail to such party's
respective address set forth above shall be effective service of process for any
action, suit or proceeding in a court of competent jurisdiction in the State of
New York with respect to any matters to which it has submitted to jurisdiction
in this Section 14. Each party irrevocably and unconditionally waives any
objection to the laying of venue of any action, suit or proceeding arising out
of this Agreement or the transactions contemplated hereby in a court of
competent jurisdiction in the State of New York, and hereby further irrevocably
and unconditionally waives and agrees not to plead or claim in any such court
that any such action, suit or proceeding brought in any such court has been
brought in an inconvenient forum. EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT
TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON
CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF SUCH PARTY IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.
15. Governing Law. This Agreement shall be governed by and interpreted and
enforced in accordance with the laws of the State of New York, without giving
effect to any choice of law or conflict of laws rules or provisions (whether of
the State of New York or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of New York;
provided, however, that any matter involving the internal corporate affairs of
Buyer shall be governed by the provisions of the jurisdiction of its
incorporation.
16. Condition to Effectiveness. Notwithstanding anything in this Agreement
to the contrary, this Agreement shall not be effective until the Effective Time.
In the event the Effective Time does not occur, this Agreement shall not be
valid, binding and enforceable against any of the parties hereto.
[Signature Page to Follow]
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto all as of the day and year first above written.
XXXXXXX COMPANY
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chairman, President & CEO
SHAREHOLDER
/s/ Xxxxx Xxxxx
--------------------------------
(Signature)
Xxxxx Xxxxx
--------------------------------
Print Name
[Signature Page to Nominating Agreement]
