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Exhibit (2)(ii)
STOCKHOLDER VOTING AGREEMENT
This Agreement, made to be effective the 27th day of July 1999, by and
among those individuals and entities named as Stockholders on the signature
pages hereto (each of whom is individually designated herein as a "Stockholder"
and collectively referred to herein as the "Stockholders"); and Xxxxxx Tire &
Rubber Company, a Delaware corporation ("Survivor").
WITNESSETH:
WHEREAS, the Company and Survivor are concurrently with the execution
of this Agreement entering into an Agreement and Plan of Merger (as it may be
modified or amended from time to time, the "Merger Agreement");
WHEREAS, capitalized terms used herein and not otherwise defined herein
have the meaning given such terms in the Merger Agreement;
WHEREAS, the Stockholders have reviewed a copy of the Merger Agreement;
WHEREAS, each Stockholder owns beneficially, and has the capacity and
all necessary power and authority to vote, the Company Common Shares identified
as owned by such Stockholder on EXHIBIT A hereto (respectively, the
"Stockholder's Shares" and, collectively, the "Stockholders' Shares");
WHEREAS, it is the belief of each Stockholder that the Merger is in the
best interests of the Stockholders and the Company;
WHEREAS, under the terms of the Merger Agreement the Company has agreed
to call a Company Shareholders Meeting for the purpose of voting upon the
approval of the Merger described in the Merger Agreement; and
WHEREAS, the Survivor has made it a condition to entering into the
Merger Agreement that the Stockholders shall have agreed to vote their Company
Common Shares in favor of the Merger;
NOW, THEREFORE, in consideration of the Company and Survivor entering
into the Merger Agreement and to encourage the Survivor to enter into the Merger
Agreement and complete the Merger, the parties hereto agree as follows:
1. AGREEMENT TO VOTE. Each Stockholder agrees, except as set forth in
Section 2 below, to vote all of his Stockholder's Shares:
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(a) in favor of the adoption of the Merger Agreement at the
Company Shareholders Meeting;
(b) against the approval of a Company Takeover Proposal; and
(c) against any other transaction which is inconsistent with the
obligation of the Company to consummate the Merger in
accordance with the Merger Agreement.
2. LIMITATION ON VOTING POWER. The parties hereto acknowledge and
agree that nothing contained herein is intended to direct, obligate or
otherwise restrict a Stockholder from voting on any matter, or otherwise from
acting, in the Stockholder's capacity as a director of the Company with
respect to any matter, including but not limited to, the management or
operation of the Company.
3. TERMINATION. This Agreement shall terminate on the earlier of:
(a) by mutual consent of the Survivor, the Company and the
Stockholders,
(b) the date on which the Merger Agreement is terminated in
accordance with its terms,
(c) the date on which approval of the shareholders of the
Company contemplated by the Merger Agreement shall have not
been obtained by reason of the failure to obtain the
required vote at a duly held meeting of the shareholders of
the Company or at any adjournment thereof, or
(d) the date on which the Merger is consummated.
4. REPRESENTATIONS, WARRANTIES AND ADDITIONAL COVENANTS OF THE
STOCKHOLDERS. Each Stockholder hereby covenants, represents and warrants to
the Company and Survivor that:
(a) such Stockholder owns beneficially, and has the capacity and
all necessary power and authority to vote, the Company
Common Shares identified as owned by such Stockholder on
EXHIBIT A hereto;
(b) this Agreement constitutes a legal, valid and binding
obligation of the Stockholder, enforceable in accordance
with its terms, except as enforcement may be limited by
bankruptcy, insolvency or similar laws affecting enforcement
of creditors' rights generally;
(c) this Agreement has been duly authorized, executed and
delivered by the person executing this Agreement on behalf
of the Stockholder;
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(d) the Stockholder further agrees that, during the term of this
Agreement, the Stockholder will not, without the prior
written consent of Survivor, sell, pledge or otherwise
voluntarily dispose of any of the Company Common Shares
owned by the Stockholder or take any other voluntary action
which would have the effect of removing the Stockholders'
power to vote the Company Common Shares or which would be
inconsistent with this Agreement; and
(e) this Agreement shall apply to all additional shares of
capital stock of the Company acquired by the Stockholder (or
received in exchange for or in respect of the Company Common
Shares now held by such Stockholder) after the date of this
Agreement, including, without limitation, any shares of
capital stock of the Company actually issued and received by
the Stockholder upon the exercise of Company Stock Options.
5. SPECIFIC PERFORMANCE. Each Stockholder hereby acknowledges that
damages would be an inadequate remedy for any breach of the provisions of this
Agreement and agrees that the obligations of the Stockholder shall be
specifically enforceable and that Survivor and the Company shall be entitled
to injunctive or other equitable relief upon such a breach by any Stockholder
to the extent such relief is available under applicable law. Each Stockholder
further agrees to waive any bond in connection with the obtaining of any such
injunctive or equitable relief. This provision is without prejudice to any
other rights that Survivor and the Company may have against a Stockholder for
any failure to perform the Stockholder's obligations under this Agreement.
6. GOVERNING LAW. This Agreement shall be enforceable under and
construed in accordance with the laws of the State of Ohio, without application
of its principles of conflict of law.
7. AMENDMENTS; NO WAIVERS.
(a) Any provision of this Agreement may be amended or waived
prior to the Effective Time if, and only if, such amendment
or waiver is in writing and signed, in the case of an
amendment, by the Stockholders, the Company and Survivor or
in the case of a waiver, by the party against whom the
waiver is to be effective.
(b) No failure or delay by any party in exercising any right,
power 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. The rights
and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by law.
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8. WAIVERS. Any failure by any of the parties hereto to comply with
any of the obligations, agreements or conditions set forth therein may be
waived by the other party or parties in accordance with Section 7(a);
PROVIDED, HOWEVER, that any such waiver shall not be deemed a waiver of any
other obligation, agreement or conditions.
9. FURTHER ACTIONS. Subject to Section 2, each of the parties agrees
to cooperate fully in the effectuation of the transactions contemplated hereby
and to execute any and all additional documents or take such additional
actions as shall be reasonably necessary or appropriate for such purpose.
10. SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, successors and assigns; provided
that no party may assign, delegate or otherwise transfer any of its rights or
obligations under this Agreement without the prior written consent of the
other parties hereto, which consent may be granted or withheld in such
parties' sole discretion.
11. EXCLUSIVE JURISDICTION. The parties agree that any legal action,
suit or proceeding arising out of or relating to this Agreement or the
agreements and transactions contemplated hereby shall be instituted in the
Federal District Court of the Northern District of Ohio, or an Ohio state
court located in Cuyahoga County, Ohio, which shall be the exclusive
jurisdiction and venue of said legal proceedings, and each party hereto
consents to the personal jurisdiction of such courts and waives any objection
that such party may now or hereafter have to the personal jurisdiction of such
courts or the laying of venue of any such action, suit or proceeding.
12. COUNTERPARTS; EFFECTIVENESS. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
13. SEVERABILITY. If any term, condition or other provision of this
Agreement is invalid, illegal, or incapable of being enforced by any rule or
law, or public policy, all other terms, conditions and provisions of this
Agreement shall nevertheless remain in full force and effect. Upon such
determination that any term, condition or other provision is invalid, illegal
or incapable of being enforced, the parties hereto shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in mutually acceptable manner in order that the
Merger and other transactions contemplated by this Agreement and the Merger
Agreement be consummated as originally contemplated to the fullest extent
possible.
14. SEVERAL OBLIGATIONS. The obligations of each Stockholder under
this Agreement are several, and not joint.
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IN WITNESS WHEREOF, each Stockholder, the Company and Survivor have
executed this Agreement to be effective as of the date set forth in the first
paragraph above.
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Witness (Stockholder)
XXXXXX TIRE & RUBBER COMPANY
By: _______________________________
Name: ______________________________
Title:______________________________
By:_________________________________
Name: ______________________________
Title:______________________________
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