Exhibit 4
VOTING AGREEMENT
AGREEMENT dated as of March 5, 1999 by and between UNIFLEX ACQUISITION
CORP., a Delaware corporation ("Acquisition") and the other parties signatory
hereto (each a "Stockholder").
RECITALS
A. Concurrently herewith, Acquisition and Uniflex, Inc., a Delaware
corporation (the "Company"), are entering into an Agreement and Plan of Merger
and Recapitalization of even date herewith (as such agreement may be amended
from time to time, the "Merger Agreement"; capitalized terms used but not
defined herein shall have the meanings set forth in the Merger Agreement)
pursuant to which (and subject to the terms and conditions specified therein)
Acquisition will be merged with and into the Company (the "Merger").
B. As a condition to Acquisition entering into the Merger Agreement,
Acquisition requires that each Stockholder enter into, and each such Stockholder
hereby agrees to enter into, this Agreement.
AGREEMENT
To implement the foregoing and in consideration of the mutual agreements
contained herein, the parties hereby agree as follows:
1. Representations and Warranties of Stockholders. Each Stockholder hereby
severally and not jointly represents and warrants to Acquisition as follows:
a. Ownership of Shares.
i. Such Stockholder is the record holder or beneficial owner
of the number of shares of Company Common Stock as is set forth
opposite such Stockholder's name on Schedule I hereto (such shares
shall constitute the "Existing Shares", and together with any shares
of Company Common Stock acquired of record or beneficially by such
Stockholder in any capacity after the date hereof and prior to the
termination hereof, whether upon exercise of options, conversion of
convertible securities, purchase, exchange or otherwise shall
constitute the "Shares").
ii. On the date hereof, the Existing Shares set forth opposite
such Stockholder's name on Schedule I hereto constitute all of the
outstanding shares
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of Company Common Stock owned of record or beneficially by such
Stockholder. Such Stockholder does not have record or beneficial
ownership of any Shares not set forth on Schedule I hereto.
iii. Such Stockholder has sole power of disposition with
respect to all of the Existing Shares set forth opposite such
Stockholder's name on Schedule I and sole voting power with respect
to the matters set forth in Section 2 hereof and sole power to
demand appraisal rights, in each case with respect to all of the
Existing Shares set forth opposite such Stockholder's name on
Schedule I, and sole power to agree to all of the matters set forth
herein with no restrictions on such rights, subject to applicable
federal securities laws and the terms of this Agreement.
iv. Such Stockholder will have sole power of disposition with
respect to Shares other than Existing Shares, if any, which become
beneficially owned by such Stockholder and will have sole voting
power with respect to the matters set forth in Section 2 hereof and
sole power to demand appraisal rights, in each case with respect to
all Shares other than Existing Shares, if any, which become
beneficially owned by such Stockholder with no restrictions on such
rights, subject to applicable federal securities laws and the terms
of this Agreement.
b. Organization; Power; Binding Agreement. If such Stockholder is a
corporation, such Stockholder is a corporation duly formed, validly existing and
in good standing under the laws of its jurisdiction of its organization. If such
Stockholder is a corporation, such Stockholder has the necessary corporate power
and authority to enter into and perform all of such Stockholder's obligations
under this Agreement and has taken all corporate action necessary to execute and
deliver this Agreement, to consummate the transactions contemplated hereby and
to perform its obligations hereunder, and no other corporate proceedings on the
part of such Stockholder are necessary to authorize the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby. If such Stockholder is an individual, such Stockholder has
the legal capacity, power and authority to enter into and perform all of such
Stockholder's obligations under this Agreement. This Agreement has been duly and
validly executed and delivered by such Stockholder and constitutes a valid and
binding agreement of such Stockholder, enforceable against such Stockholder in
accordance with its terms. If such Stockholder is married and such Stockholder's
Shares constitute community property, this Agreement has been duly authorized,
executed and delivered by, and constitutes a valid and binding agreement of such
Stockholder's spouse, enforceable against such person in accordance with its
terms.
c. No Conflicts. Except for filings under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), if applicable,
and any required amendments to any Schedule 13D, Form 3 or Form 4 filed by any
such Stockholder, (A) no
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filing with, and no permit, authorization, consent or approval of, any state or
federal public bodyor authority is necessary for the execution of this Agreement
by such Stockholder and the consummation by such Stockholder of the transactions
contemplated hereby and (B) neither the execution, delivery or performance of
this Agreement by such Stockholder nor the consummation by such Stockholder of
the transactions contemplated hereby nor compliance by such Stockholder with any
of the provisions hereof shall (x) conflict with or result in any breach of any
applicable certificate of incorporation, bylaws, trust, partnership agreement or
other agreements or organizational documents applicable to such Stockholder, (y)
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 such Stockholder is a party or by
which such Stockholder or any of such Stockholder's properties or assets may be
bound or (z) violate any order, writ, injunction, decree, judgment, law,
statute, rule or regulation applicable to such Stockholder or any of such
Stockholder's properties or assets.
d. No Transfer. Except as described on Schedule II, such
Stockholder's Shares and the certificates representing such Shares are now and
at all times during the term hereof will be held by such Stockholder, or by a
nominee or custodian for the benefit of such Stockholder, free and clear of all
liens, claims, security interests, community property interests, proxies, voting
trusts or agreements, understandings or arrangements or any other encumbrances
whatsoever, except for any such encumbrances or proxies arising hereunder.
e. No Finders. No broker, investment banker, financial adviser 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 such Stockholder in his
or her capacity as such.
f. Acknowledgment. Such Stockholder understands and acknowledges
that Acquisition is entering into the Merger Agreement in reliance upon such
Stockholder's execution and delivery of this Agreement.
2. Agreement To Vote; Proxy.
a. Voting. Each Stockholder hereby severally and not jointly agrees
that, until the Termination Date (as defined in Section 7 hereof), at any
meeting of the stockholders of the Company, however called, or in connection
with any written consent of the stockholders of the Company, such Stockholder
shall vote (or cause to be voted) the Shares owned by such Stockholder (i) in
favor of the Merger and adoption of the Merger Agreement, the execution and
delivery by the Company of the Merger Agreement and the approval of the terms
thereof and in favor of each of the other actions contemplated by the Merger
Agreement and this Agreement and any actions required in furtherance hereof and
thereof, provided that each
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Stockholder shall not be required to vote to approve the Merger if any amendment
to the Merger Agreement (x) decreases the amount of Merger Consideration or (y)
materially adversely affects the Stockholder's interests in the Merger, unless
such Stockholder agrees in writing to such amendment to the Merger Agreement;
(ii) against any action or agreement that would (or would be reasonably likely
to) result in a breach of any covenant, representation or warranty or any other
obligation or agreement of the Company under the Merger Agreement or this
Agreement; and (iii) except as specifically requested in writing by Acquisition
in advance, against the following actions (other than the Merger and the
transactions contemplated by the Merger Agreement): (1) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or any of its subsidiaries; (2) a sale, lease
or transfer (whether by merger, consolidation, operation of law or otherwise) of
a material amount of assets of the Company or any of its subsidiaries or a
reorganization, recapitalization, dissolution or liquidation of the Company or
any of its subsidiaries; (3)(a) any change in the majority of the board of
directors of the Company; (b) any amendment of the Company's certificate of
incorporation or by-laws; (c) any other material change in the Company's
corporate structure or business; or (d) any other action which is intended, or
could reasonably be expected, or impede, interfere with, delay, postpone,
discourage or materially adversely affect the Merger or the transactions
contemplated by the Merger Agreement or this Agreement. Such Stockholder shall
not enter into any agreement or understanding with any person or entity prior to
the Termination Date to vote or give instructions after the Termination Date in
any manner inconsistent with clauses (i), (ii) or (iii) of the preceding
sentence.
b. PROXY. EACH STOCKHOLDER HEREBY GRANTS TO, AND APPOINTS,
ACQUISITION AND XXXXX X XXXXXXX, PRESIDENT OF ACQUISITION, AND A. XXXX XXXXX,
VICE PRESIDENT OF ACQUISITION, IN THEIR RESPECTIVE CAPACITIES AS OFFICERS OF
ACQUISITION, AND ANY INDIVIDUAL WHO SHALL HEREAFTER SUCCEED TO ANY SUCH OFFICE
OF ACQUISITION, AND ANY OTHER DESIGNEE OF ACQUISITION, EACH OF THEM
INDIVIDUALLY, SUCH STOCKHOLDER'S IRREVOCABLE (UNTIL THE TERMINATION DATE) PROXY
AND ATTORNEY-IN-FACT (WITH FULL POWER OF SUBSTITUTION) TO VOTE THE SHARES AS
INDICATED IN SECTION 2(a) ABOVE. EACH STOCKHOLDER INTENDS THIS PROXY TO BE
IRREVOCABLE (UNTIL THE TERMINATION DATE) AND COUPLED WITH AN INTEREST AND WILL
TAKE SUCH FURTHER ACTION AND EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE NECESSARY
TO EFFECTUATE THE INTENT OF THIS PROXY AND HEREBY REVOKES ANY PROXY PREVIOUSLY
GRANTED BY SUCH STOCKHOLDER WITH RESPECT TO SUCH STOCKHOLDER'S SHARES.
3. Certain Covenants of Stockholders. Except in accordance with the terms
of this Agreement, each Stockholder hereby severally covenants and agrees as
follows:
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a. No Solicitation. Prior to the Termination Date, no Stockholder
shall, in its capacity as such, directly or indirectly (including through
advisors, agents or other intermediaries), solicit (including by way of
furnishing information) or respond to any inquiries or the making of any
proposal by any person or entity (other than Acquisition or any Affiliate
thereof) with respect to the Company that constitutes or could reasonably be
expected to lead to an Acquisition Proposal (as defined in Section 6.4 in the
Merger Agreement). If any Stockholder in his or its capacity as such receives
any such inquiry or proposal, then such Stockholder shall promptly inform
Acquisition, on a prompt and ongoing basis, of the terms and conditions, if any,
of such inquiry or proposal, the identity of the person making it and the
status, content and progress of any negotiations. Each Stockholder, in its
capacity as such, will immediately cease and cause to be terminated any existing
activities, discussions or negotiations with any parties conducted heretofore
with respect to any of the foregoing. Notwithstanding the foregoing, nothing in
this Section 3.1 shall restrict a Stockholder who is also a director or officer
of the Company from taking actions in such Stockholder's capacity as a director
or officer to the extent and in the circumstances permitted by Section 6.4 of
the Merger Agreement.
b. Restriction on Transfer, Proxies and Noninterference; Restriction
on Withdrawal. Prior to the Termination Date, no Stockholder shall, directly or
indirectly: (i) except pursuant to the terms of the Merger Agreement and to
Acquisition pursuant to this Agreement, offer for sale, sell, transfer (whether
by merger, consolidation, operation of law or otherwise), tender, pledge,
encumber, assign or otherwise dispose of, enforce or permit the execution of the
provisions of any redemption agreement with the Company or enter into any
contract, option or other arrangement or understanding with respect to or
consent to the offer for sale, sale, transfer (whether by merger, consolidation,
operation of law or otherwise), tender, pledge, encumbrance, assignment or other
disposition of, or exercise any discretionary powers to distribute, any or all
of such Stockholder's Shares or any interest therein, (ii) except as
contemplated by this Agreement, grant any proxies or powers of attorney with
respect to any Shares, deposit any Shares into a voting trust or enter into a
voting agreement with respect to any Shares; or (iii) take any action that would
make any representation or warranty of such Stockholder contained herein untrue
or incorrect or have the effect of preventing or disabling such Stockholder from
performing such Stockholder's obligations under this Agreement.
c. Waiver of Appraisal Rights. Except to the extent a Stockholder is
permitted to vote against the Merger pursuant to paragraph 2 hereof, each
Stockholder hereby waives any rights of appraisal from the Merger or rights to
dissent from the Merger that such Stockholder may have.
4. 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 action as may be reasonably
necessary or desirable to consummate and make effective, in the most expeditious
manner practicable, the transactions contemplated by this Agreement.
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5. Certain Events. Each Stockholder agrees that this Agreement and the
obligations hereunder shall attach to such Stockholder's Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of such
Shares shall pass, whether by operation of law or otherwise, including without
limitation such Stockholder's heirs, guardians, administrators or successors or
as a result of any divorce.
6. Stop Transfer. Each Stockholder agrees with, and covenants to,
Acquisition that such Stockholder shall not request that the Company register
the transfer (book-entry or otherwise) of any certificate or uncertificated
interest representing any of such Stockholder's Shares, unless such transfer is
made in compliance with this Agreement.
7. Termination. The obligations of the Stockholders under this Agreement
shall terminate upon the earlier of (i) the Effective Time of the Merger, (ii)
the date the Merger Agreement is terminated in accordance with its terms, or
(iii) any event described in Section 8.1(a)(v)(A), (B), (D) or (E) of the Merger
Agreement has occurred (such date being referred to herein as the "Termination
Date"). The termination of this Agreement shall not relieve any party from
liability for any breach of this Agreement.
8. Fiduciary Duties. Nothing set forth in this Agreement shall prevent any
Stockholder who is a director or officer of the Company from exercising his
fiduciary duties as a director or officer of the Company in connection with the
Merger Agreement and Merger.
9. Miscellaneous.
a. Entire Agreement; Assignment. This Agreement (i) constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all other prior agreements and understandings, both written and
oral, between the parties with respect to the subject matter hereof and (ii)
shall not be assigned by operation of law or otherwise without the prior written
consent of the other parties.
b. Amendments. This Agreement may not be modified, amended, altered
or supplemented, except upon the execution and delivery of a written agreement
executed by the parties hereto.
c. Notices. All notices, requests, demands and other communications
which are required or may be given under this Agreement shall be in writing and
shall be deemed to have been duly given when received, if personally delivered;
when transmitted, if transmitted by telecopy, upon receipt of electronic
confirmation; the day after it is sent, if sent for next day delivery to a
domestic address by recognized overnight delivery service (e.g., Federal
Express); and upon receipt, if sent by certified or registered mail, return
receipt requested. In each case notice shall be sent to:
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If to a Stockholder:
To the address and facsimile number set forth on Schedule I
hereto.
With a copy to:
Xxxxxxxx Xxxxxx & Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx Xxxxxx, Esq.
Telecopy: (000) 000-0000
If to Acquirer, addressed to:
Uniflex Acquisition Corp.
c/o RFE Investment Partners
00 Xxxxx Xxxxxx
Xxx Xxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Telecopy: (000) 000-0000
c/o CMCO, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxx
Telecopy: (000) 000-0000
With a copy to:
Battle Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxx Xxxxxxx, Esq.
Telecopy: (000) 000-0000
And a copy to:
Xxxx Xxxxx & Xxxxxxx LLP
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx III, Esq.
Telecopy: (000) 000-0000
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And a copy to:
Uniflex, Inc.
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Telecopy: (000) 000-0000
With a copy to:
Xxxxxx Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
or to such other place and with such other copies as either party may designate
as to itself by written notice to the others.
d. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, regardless of the laws
that might otherwise govern under applicable principles of conflicts of laws
thereof.
e. Enforcement. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement.
f. Counterparts; Facsimile Signature. This Agreement may be executed
(i) in two or more counterparts, each of which shall be deemed to be an
original, but both of which shall constitute one and the same Agreement and (ii)
by facsimile (provided an original of the facsimile is provided).
g. 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.
h. 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 unenforceability will not affect any other provision
or
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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.
10. Definitions; Construction. For purposes of this Agreement:
a. "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 Exchange Act), including pursuant to
any agreement, 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 shall include securities beneficially owned by
all other Persons with whom such Person would constitute a "group" as described
in Section 13(d)(3) of the Exchange Act.
b. "Person" shall mean an individual, corporation, partnership,
joint venture, association, trust, unincorporated organization or other entity.
c. In the event of a stock dividend or distribution, or any change
in the Company Common Stock by reason of any split-up, subdivision,
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 stock
distributed pursuant to such stock dividends and distributions and any shares
into which or for which any or all of the Shares may be changed, exchanged,
split, subdivided, combined or recapitalized.
11. Stockholder Capacity. Notwithstanding anything herein to the contrary,
no person executing this Agreement who is, or becomes during the term hereof, a
director or officer of the Company makes any agreement or understanding herein
in his or her capacity as such director or officer, and the agreements set forth
herein shall in no way restrict any director or officer in the exercise of his
or her fiduciary duties as a director or officer of the Company. Each
Stockholder has executed this Agreement solely in his or her capacity as the
record or beneficial holder of such Stockholder's Shares.
[Signature Page Follows]
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IN WITNESS WHEREOF, Acquisition and each Stockholder have caused this
Agreement to be duly executed as of the day and year first above written.
UNIFLEX ACQUISITION CORP.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
STOCKHOLDERS:
/s/ Xxxxxx X. Xxxxx
-------------------------------
Xxxxxx X. Xxxxx
/s/ Xxxxxxx Xxxxx
-------------------------------
Xxxxxxx Xxxxx
/s/ Xxxxxx Xxxxxx
-------------------------------
Xxxxxx Xxxxxx
/s/ Xxxxx Xxxxxx
-------------------------------
Xxxxx Xxxxxx
/s/ Xxxxxxx Xxxxxx
-------------------------------
Xxxxxxx Xxxxxx
/s/ Xxx Xxxxxx
-------------------------------
Xxx Xxxxxx
/s/ Xxxxxxx Xxxxxx
-------------------------------
Xxxxxxx Xxxxxx
/s/ Xx Xxxxxxxxxx
-------------------------------
Xx Xxxxxxxxxx
/s/ Xxxx Xxxxx
-------------------------------
Xxxx Xxxxx
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/s/ Xxxxxxx X. Xxxxx
----------------------------------------------
Xxxxxxx X. Xxxxx, as custodian for
Xxxxx X. Xxxxxxxx
/s/ Xxxxx Xxx Xxxxx
----------------------------------------------
Xxxxx Xxx Xxxxx
/s/ Xxxxxx X. Xxxxxx
----------------------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxxxxxx
----------------------------------------------
Xxxxxx X. Xxxxxxxxxx
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Schedule I
Number of
Name Address and Facsimile Number Existing Shares
---- ---------------------------- ---------------
Xxxxxxx Xxxxx ** 435,576
Xxxxx Xxx Xxxxx ** 34,914
Xxxxxx X. Xxxxx ** 433,800
Xxxxxxx X. Xxxxx, as ** 300
custodian for
Xxxxx X. Xxxxxxxx
Warner X. Xxxxxx ** 326,420
Xxxxxx X. Xxxxxx ** 129,100
Xxxxx X. Xxxxxx ** 288,999
Xxxxxxx X. Xxxxxx ** 87,300
Xxx X. Xxxxxx ** 62,704*
Xxxxxxx X. Xxxxxx ** 57,400*
Xx X. Xxxxxxxxxx ** 22,710
Xxxxxx X. Xxxxxxxxxx ** 17,835
Xxxx Xxxxx ** 30,100
------------
Total Number of Shares 1,863,720*
============
----------
* Of these shares, 45,603 are jointly held by Xxx and Xxxxxxx Xxxxxx.
** Address and facsimile number of each Stockholder is set forth on next page.
Schedule II
Xxxxxxx Xxxxx Xxxxxx X. Xxxxx
Xxxxx Xxx Xxxxx Xxxxxxx X. Xxxxx
0 Xxxxxx Xxxx 000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000 Xxxxxxx, XX 00000
Xx X. Xxxxxxxxxx Xxx X. Xxxxxx
Xxxxxx X. Xxxxxxxxxx Xxxxxxx X. Xxxxxx
23 Xxxxxxxxx Place 0 Xxxxxx Xxxxx Xx.
Xxx Xxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Warner X. Xxxxxx Xxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx 000 Xxxxxxxx Xxxx
0 Xxxxxxx Xxxx Xxx Xxxxx, XX 00000
Xxxxx Xxxx, XX 00000
Xxxx Xxxxx Xxxxxx X. Xxxxxx
0 Xxxxxxxx Xxxxx 0000 Xxxxxx Xx Xxxxx
Xxxx Xxxxxxxx, XX 00000 Xxxxxxxxxxx, XX 00000
