EXHIBIT 99.2
EXECUTION COPY
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VOTING AGREEMENT
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VOTING AGREEMENT (this "Agreement") dated as of May 10, 2006, is by and
among KOOSHAREM CORPORATION, a California corporation ("Parent"), RT ACQUISITION
CORP., a Delaware corporation ("Merger Sub"), and each Person (as defined in the
Merger Agreement (as defined below)) listed on the signature page hereof as a
shareholder (each, a "Shareholder," and collectively, the "Shareholders"). For
purposes of this Agreement, capitalized terms used and not defined herein shall
have the respective meanings ascribed to them in the Agreement and Plan of
Merger, dated as of the date hereof (the "Merger Agreement"), by and among
Parent, Merger Sub and RemedyTemp, Inc., a California corporation (the
"Company").
RECITALS
A. Each Shareholder "beneficially owns" (as such term is defined in
Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended)
and is entitled to dispose of (or to direct the disposition of) and to vote (or
to direct the voting of) the number of shares of Class A Common Stock, par value
$.01 per share, of the Company (the "Class A Common Stock") and Class B Common
Stock, par value $.01 per share, of the Company (the "Class B Common Stock" and,
together with the Class A Common Stock, the "Company Common Stock") set forth
opposite such stockholder's name on Schedule A hereto (such shares of Company
Common Stock, together with all other shares of capital stock of the Company
acquired by any Shareholder after the date hereof and during the term of this
Agreement, being collectively referred to herein as the "Subject Shares").
B. Concurrently with the execution and delivery of this Agreement,
Parent Merger Sub and the Company have entered into the Merger Agreement
providing for the merger of Merger Sub with and into the Company, with the
Company continuing as the surviving corporation in the Merger (the "Merger"),
all upon the terms and subject to the conditions set forth therein.
C. As a condition to entering into the Merger Agreement, Parent and
Merger Sub have required that the Shareholders enter into this Agreement, and
the Shareholders desire to enter into this Agreement to induce Parent and Merger
Sub to enter into the Merger Agreement.
D. The Board of Directors of the Company has taken all actions
necessary and within its authority such that no restrictive provision of any
"fair price," "moratorium," "control share acquisition," "business combination,"
"Shareholder protection," "interested shareholder" or other similar
anti-takeover statute or regulation, any restrictive provision of the Amended
and Restated Articles of Incorporation or Amended and Restated By-Laws of the
Company or comparable organizational documents of any of its Subsidiaries or the
Rights Agreement is, or at the Effective Time will be, applicable to the
Company, its Subsidiaries, Parent, Merger Sub, the Company Common Stock, the
Merger or any other transaction contemplated by this Agreement or the Merger
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Representations and Warranties of Each Shareholder.
Each Shareholder, severally (and not jointly), hereby represents and
warrants to Parent as follows:
(a) Due Authorization and Organization. With respect to each
Shareholder that is not a natural person, such Shareholder is duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation or organization (as applicable) and with respect to each
Shareholder that is a natural person, such Shareholder has the requisite
capacity to enter into this Agreement. Such Shareholder has all requisite legal
power (corporate or other) and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby. This Agreement has been
duly authorized, executed and delivered by such Shareholder and constitutes a
valid and binding obligation of such Shareholder enforceable in accordance with
its terms subject to (i) bankruptcy, insolvency, moratorium and other similar
laws now or hereafter in effect relating to or affecting creditors' rights
generally, and (ii) general principles of equity (regardless of whether
considered in a proceeding at law or in equity).
(b) No Conflicts. (i) No filing by such Shareholder with any
Governmental Entity, and no authorization, consent or approval of any other
Person is necessary for the execution of this Agreement by such Shareholder or
the consummation by such Shareholder of the transactions contemplated hereby and
(ii) none of the execution and delivery of this Agreement by such Shareholder,
the consummation by such Shareholder of the transactions contemplated hereby or
compliance by such Shareholder with any of the provisions hereof shall (A)
conflict with or result in any breach of the organizational documents of such
Shareholder (if applicable), (B) result in, or give rise to, a violation or
breach of or a default under (with or without notice or lapse of time, or both)
any of the terms of any material contract, trust agreement, loan or credit
agreement, note, bond, mortgage, indenture, lease, permit, understanding,
agreement or other instrument or obligation to which such Shareholder is a party
or by which such Shareholder or any of its Subject Shares or assets may be
bound, or (C) violate any applicable order, writ, injunction, decree, judgment,
statute, rule or regulation, except for any of the foregoing as would not
reasonably be expected to prevent such Shareholder from performing its
obligations under this Agreement.
(c) The Subject Shares. Schedule A sets forth opposite such
Shareholder's name, the number of Subject Shares over which such Shareholder has
record or beneficial ownership as of the date hereof. As of the date hereof,
such Shareholder is the record or beneficial owner of the Subject Shares denoted
as being owned by such Shareholder on Schedule A and has the sole power to vote
(or cause to be voted) such Subject Shares. Except as set forth on such Schedule
A, neither such Shareholder nor any affiliate of such Shareholder owns or holds
any right to acquire any additional shares of any class of capital stock of the
Company or other securities of the Company or any interest therein or any voting
rights with respect to any securities of the Company. Such Shareholder has good
and valid title to the Subject Shares denoted as being owned by such Shareholder
on Schedule A, free and clear of any and all pledges, mortgages, liens, charges,
proxies, voting agreements, encumbrances, adverse claims, options, security
interests and demands of any nature or kind whatsoever, other than those created
by this Agreement, as disclosed on Schedule A, or as would not prevent such
Shareholder from performing its obligations under this Agreement.
(d) Reliance By Parent. Such Shareholder understands and
acknowledges that Parent is entering into the Merger Agreement in reliance upon
such Shareholder's execution and delivery of this Agreement.
(e) Litigation. As of the date hereof, there is no action,
proceeding or investigation pending or threatened against such Shareholder that
questions the validity of this Agreement or any action taken or to be taken by
such Shareholder in connection with this Agreement.
2. Representations and Warranties of Parent and Merger Sub.
Parent and Merger Sub hereby represent and warrant to the Shareholders
as follows:
(a) Due Organization, etc. Parent and Merger Sub are each duly
organized, validly existing and in good standing under the laws of their
respective jurisdictions of incorporation. Parent and Merger Sub have all
requisite corporate power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby. This Agreement has been
duly authorized, executed and delivered by Parent and Merger Sub and constitutes
a valid and binding obligation of Parent and Merger Sub enforceable in
accordance with its terms subject to (i) bankruptcy, insolvency, moratorium and
other similar laws now or hereafter in effect relating to or affecting
creditors' rights generally, and (ii) general principles of equity (regardless
of whether considered in a proceeding at law or in equity).
(b) Conflicts. (i) No filing by Parent or Merger Sub with any
Governmental Entity, and no authorization, consent or approval of any other
Person is necessary for the execution of this Agreement by Parent or Merger Sub
or the consummation by Parent or Merger Sub of the transactions contemplated
hereby and (ii) none of the execution and delivery of this Agreement by Parent
or Merger Sub, the consummation by Parent or Merger Sub of the transactions
contemplated hereby or compliance by Parent or Merger Sub with any of the
provisions hereof shall (A) conflict with or result in any breach of the
Articles of Incorporation or By-Laws of Parent or the comparable organizational
documents of Merger Sub, (B) result in, or give rise to, a violation or breach
of or a default under (with or without notice or lapse of time, or both) any of
the terms of any contract, loan or credit agreement, note, bond, mortgage,
indenture, lease, permit, understanding, agreement or other instrument or
obligation to which Parent or Merger Sub is a party or by which Parent or Merger
Sub or any of their respective assets may be bound, or (C) violate any
applicable order, writ, injunction, decree, judgment, statute, rule or
regulation, except for any of the foregoing as would not prevent Parent or
Merger Sub from performing their respective obligations under this Agreement.
3. Covenants of Each Shareholder.
Until the termination of this Agreement in accordance with Section 5,
each Shareholder, in its capacity as such, agrees as follows:
(a) At the Company Shareholders Meeting or at any adjournment,
postponement or continuation thereof or in any other circumstances occurring
prior to the Company Shareholders Meeting upon which a vote or other approval
with respect to the Merger and the Merger Agreement is sought, each Shareholder
shall vote (or cause to be voted) the Subject Shares (and each class thereof)
held by such Shareholder (i) in favor of the approval of the Merger and the
approval and adoption of the Merger Agreement; and (ii) except with the written
consent of Parent and Merger Sub, against any Company Acquisition Proposal. Any
such vote shall be cast in accordance with such procedures relating thereto so
as to ensure that it is duly counted for purposes of determining that a quorum
is present and for purposes of recording the results of such vote. Each
Shareholder agrees not to enter into any agreement or commitment with any Person
the effect of which would be inconsistent with or violative of the provisions
and agreements contained in this Section 3(a).
(b) Each Shareholder agrees not to, directly or indirectly,
(i) sell, transfer, tender, pledge, encumber, assign or otherwise dispose of
(collectively, a "Transfer") or enter into any agreement, option or other
arrangement with respect to, or consent to a Transfer of, or reduce his, her or
its risk in a Constructive Sale (as defined below) with respect to, any or all
of the Subject Shares, other than in accordance with the Merger Agreement, or
(ii) grant any proxies (other than the Company proxy card in connection with the
Company Shareholders Meeting if and to the extent such proxy is consistent with
such Shareholder's obligations under Section 3(a) hereof), deposit any Subject
Shares into any voting trust or enter into any voting arrangement, whether by
proxy, voting agreement or otherwise, with respect to any of the Subject Shares,
other than pursuant to this Agreement or in a manner consistent with such
Shareholder's obligations under Section 3(a) hereof. Such Shareholder further
agrees not to, and shall cause its affiliates not to, commit or agree to take
any of the foregoing actions or take any action that may reasonably be expected
to have the effect of preventing, impeding, interfering with or adversely
affecting its ability to perform its obligations under this Agreement.
Notwithstanding the foregoing or anything to the contrary set forth in this
Agreement, each Shareholder may Transfer any or all of the Subject Shares (i) by
will, or by operation of law, in which case this Agreement shall bind the
transferee, or (ii) in connection with estate and charitable planning purposes,
including Transfers to relatives, trusts and charitable organizations or by
distribution to partners, members, shareholders or affiliates of the
Shareholder, so long as the transferee, prior to such Transfer, executes a
counterpart of this Agreement (with such modifications as Parent may reasonably
request solely to reflect such transfer). As used herein, the term "Constructive
Sale" shall mean a short sale with respect to any Subject Shares, entering into
or acquiring an offsetting derivative contract with respect to any Subject
Shares, entering into or acquiring a futures or forward contract to deliver any
Subject Shares or entering into any other or other derivative transaction that
has the effect of materially changing the economic benefits and risks of
ownership.
(c) Such Shareholder shall not, nor shall such Shareholder
permit any of its affiliates to, nor shall such Shareholder act in concert with
or permit any affiliate to act in concert with any Person to make, or in any
manner participate in, directly or indirectly, a "solicitation" (as such term is
used in the rules of the Securities and Exchange Commission) of proxies or
powers of attorney or similar rights to vote, or seek to advise or influence any
Person with respect to the voting of, any shares of Company Common Stock
intended to facilitate any Company Acquisition Proposal or to cause shareholders
of the Company not to vote to approve and adopt the Merger Agreement.
4. Shareholder Capacity.
No Person executing this Agreement, nor any officer, director, partner,
employee, agent or representative of such Person, who is or becomes during
the term of this Agreement a director or officer of the Company shall be
deemed to make any agreement or understanding in this Agreement in such
Person's capacity as a director or officer. Each Shareholder is entering into
this Agreement solely in his or her capacity as the record holder or
beneficial owner of, or the trustee of a trust whose beneficiaries are the
beneficial owners of, such Shareholder's Subject Shares and nothing herein
shall limit or affect any actions taken by a Shareholder in his or her
capacity as a director or officer of the Company.
5. Termination.
This Agreement shall terminate (i) upon the approval and adoption of
the Merger Agreement at the Company Shareholders Meeting; (ii) upon the
termination of the Merger Agreement in accordance with its terms; or (iii) at
any time upon notice by Parent to the Shareholders. No party hereto shall be
relieved from any liability for intentional breach of this Agreement by reason
of any such termination. Notwithstanding the foregoing, this Section 5 and
Sections 7 and 9 of this Agreement shall survive the termination of this
Agreement.
6. Appraisal Rights.
To the extent permitted by applicable law, each Shareholder hereby
waives any rights of appraisal or rights to dissent from the Merger that it may
have under applicable law.
7. Publication.
Each Shareholder hereby authorizes Parent and the Company to publish
and disclose in the Proxy Statement (including any and all documents and
schedules filed with the Securities and Exchange Commission relating thereto)
its identity and ownership of Subject Shares and the nature of its commitments,
arrangements and understandings pursuant to this Agreement.
8. Xxxxxx X. XxXxxxxxx Xx. Medical Benefits
In consideration of the covenants and agreements contained in this
Agreement, during the period from December 3, 2007, the date of expiration of
the Amended and Restated Employment Agreement between the Company and Xxxxxx X.
XxXxxxxxx, Xx., dated as of January 7, 1998 as amended, until the 18-month
anniversary of such date, Parent shall, or shall cause the Surviving Corporation
to, provide medical insurance benefits to Xxxxxx X. XxXxxxxxx, Xx. on
substantially the same terms provided to other executive officers of Parent.
9. Waiver of Jury Trial.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE
UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND
THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY
RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH SUCH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH SUCH
PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) EACH SUCH PARTY HAS BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 9.
10. Governing Law; Jurisdiction.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Delaware applicable to contracts executed in and to be
performed entirely within that State. Each party hereby agrees and consents to
be subject to the jurisdiction of the Court of Chancery of the State of Delaware
in and for New Castle County or, if the Court of Chancery lacks subject matter
jurisdiction, any court of the State of Delaware situated in New Castle County
or the United States District Court for the District of Delaware in any suit,
action or proceeding seeking to enforce any provision of, or based on any matter
arising out of or in connection with, this Agreement or the transactions
contemplated hereby. Each party hereby irrevocably consents to the service of
any and all process in any such suit, action or proceeding by the delivery of
such process to such party at the address and in the manner provided in Section
14 hereof. Each of the parties hereto 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 the Court of
Chancery of the State of Delaware in and for New Castle County or, if the Court
of Chancery lacks subject matter jurisdiction, any court of the State of
Delaware situated in New Castle County or the United States District Court for
the District of Delaware, 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.
11. Specific Performance.
Each party hereto acknowledges that money damages would be both
incalculable and an insufficient remedy for any breach of this Agreement by such
party and that any such breach would cause the other party hereto irreparable
harm. Accordingly, each party hereto also agrees that, in the event of any
breach or threatened breach of the provisions of this Agreement by such party,
the other party hereto shall be entitled to equitable relief without the
requirement of posting a bond or other security, including in the form of
injunctions and orders for specific performance.
12. Amendment, Waivers, Etc.
This Agreement may be amended by Parent, Merger Sub and the
Shareholders at any time before or after adoption of the Merger Agreement by the
shareholders of the Company; provided, however, that after such adoption, no
amendment shall be made that by law or in accordance with the rules of any
relevant stock exchange or automated inter-dealer quotation system requires
further approval by such Shareholders without such further approval. This
Agreement may not be amended except by an instrument in writing signed by
Parent, Merger Sub and the Shareholders. At any time prior to the Effective
Time, Parent, Merger Sub and the Shareholders may, to the extent legally
allowed, (i) extend the time for the performance of any of the obligations or
acts of the other party; (ii) waive any inaccuracies in the representations and
warranties of the other party contained herein or in any document delivered
pursuant to this Agreement; and (iii) waive compliance with any of the
agreements or conditions of the other party contained herein; provided, however,
that no failure or delay by Parent, Merger Sub and the Shareholders in
exercising any right 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 hereunder. Any agreement on the part
of Parent or the Shareholders to any such extension or waiver shall be valid
only if set forth in an instrument in writing signed on behalf of such party.
13. Assignment; No Third Party Beneficiaries.
Neither this Agreement nor any of the rights, benefits or obligations
hereunder may be assigned by any of the parties hereto (whether by operation of
law or otherwise) without the prior written consent of all of the other parties.
Subject to the preceding sentence, this Agreement will be binding upon, inure to
the benefit of and be enforceable by the parties hereto and their respective
successors and permitted assigns. Nothing in this Agreement, express or implied,
is intended to or shall confer upon any Person (other than Parent, Merger Sub
and the Shareholders and their respective successors and permitted assigns) any
legal or equitable right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement, and no Person (other than as so specified) shall be
deemed a third party beneficiary under or by reason of this Agreement.
14. Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made (i) as of the date delivered if delivered personally or on the date of
confirmation of receipt if sent by facsimile and (ii) on the third business day
after deposit in the U.S. mail, if mailed by registered or certified mail
(postage prepaid, return receipt requested), in each case to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice, except that notices of changes of address shall be effective
upon receipt):
if to Parent, to:
Koosharem Corporation
0000 Xxxxx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: D. Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000 (not official notice)
Facsimile: (000) 000-0000
If to any Shareholder, at the address set forth under such Shareholder's name on
Schedule A hereto or to such other address as the party to whom notice is to be
given may have furnished to the other parties in writing in accordance herewith.
15. Severability.
If any term or other provision of this Agreement is invalid, illegal or
incapable of being enforced by any rule of law, or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner adverse to any party. Upon
such determination that any term 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 an acceptable manner to the end that transactions
contemplated hereby are fulfilled to the maximum extent possible.
16. Integration.
This Agreement (together with the Merger Agreement to the extent
referenced herein), including Schedule A hereto, constitutes the full and entire
understanding and agreement of the parties with respect to the subject matter
hereof and thereof and supersedes any and all prior understandings or agreements
relating to the subject matter hereof and thereof.
17. Mutual Drafting.
Each party hereto has participated in the drafting of this Agreement,
which each party acknowledges is the result of extensive negotiations between
the parties.
18. Section Headings.
The section headings of this Agreement are for convenience of reference
only and are not to be considered in construing this Agreement.
19. Counterparts.
This Agreement may be executed in one or more counterparts and by
different parties hereto in separate counterparts, and of which when executed
shall be deemed to be an original but all which shall constitute one and the
same agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have executed this Voting
Agreement as of the day and date first above written.
KOOSHAREM CORPORATION
By:/s/ D. Xxxxxxx Xxxxxxxx
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D. Xxxxxxx Xxxxxxxx
President and Chief Executive Officer
RT ACQUISITION CORP.
By:/s/ D. Xxxxxxx Xxxxxxxx
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D. Xxxxxxx Xxxxxxxx
President and Chief Executive Officer
SHAREHOLDERS:
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By:/s/ Xxxxxx X. XxXxxxxxx, Xx.
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Xxxxxx X. XxXxxxxxx, Xx.
By:/s/ Xxxxxx X. XxXxxxxxx, Xx.
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Xxxxxx X. XxXxxxxxx, Trustee of the
XxXxxxxxx Survivor's Trust
U/D/T dated June 5, 1985, as amended
By:/s/ Xxxxxx X. XxXxxxxxx, Xx.
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Xxxxxx X. XxXxxxxxx, Trustee of the
XxXxxxxxx Exempt Marital Trust
U/D/T dated June 5, 1985
SCHEDULE A
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SHAREHOLDERS
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Shareholder Subject Shares
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Xxxxxx X. XxXxxxxxx, Xx. 100
00000 Xxxxx Xx.
Xxxxxxxxxx Xxxxx, XX 00000-0000
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Xxxxxx X. XxXxxxxxx, Xx., TTCE 1,370,000
XxXxxxxxx Survivor's Trust #2
U/A DTD 6/15/85
000 Xxxxxxxxxx
Xxxxx Xxxxx, XX 00000-0000
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Xxxxxx X. XxXxxxxxx, Trustee of the XxXxxxxxx Exempt 195,568
Marital Trust
UDT DTD 6/5/85 as amended
00000 Xxxxx Xx.
Xxxxxxxxxx Xxxxx, XX 00000-0000
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