EXHIBIT 2.4
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VOTING AGREEMENT
BY AND AMONG
VENTURI PARTNERS, INC.
AND
THE STOCKHOLDERS NAMED HEREIN
DATED AS OF SEPTEMBER 30, 2004
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VOTING AGREEMENT
This Voting Agreement (this "AGREEMENT") is made and entered into as of
September 30, 2004 by and among VENTURI PARTNERS, INC., a Delaware corporation
(the "COMPANY"), and the parties identified as "Stockholders" on the signature
pages hereto.
PRELIMINARY STATEMENTS
The Company, VTP, Inc., Venturi Technology Partners, LLC, Comsys
Information Technology Services, Inc., Comsys Holding, Inc. and certain
stockholders of Holding have entered into an Agreement and Plan of Merger dated
as of July 19, 2004 (as the same may be amended from time to time, the "MERGER
AGREEMENT"), pursuant to which, upon the terms and subject to the conditions
thereof, VTP, Inc. will be merged with and into Comsys Holding, Inc. and Comsys
Holding, Inc. will be the surviving entity (the "MERGER").
As a condition to the consummation of the transactions contemplated by the
Merger Agreement, various stockholders of the Company and of Holding have
required that the Company and certain parties who are, or who as a result of the
Merger will become, stockholders of the Company, and the Company and such
parties are willing to, enter into a voting agreement with respect to
nominations to the board of directors of the Company at and after the
effectiveness of the Merger.
Capitalized terms used but not defined herein have the meanings given in
the Merger Agreement.
Now, therefore, for good, valuable and binding consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto, intending
to be legally bound hereby, agree as follows:
STATEMENT OF AGREEMENT
ARTICLE I
DEFINITIONS
Section 1.1. Definitions.
"AFFILIATE" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Exchange Act.
"AGREEMENT" has the meaning given in the preamble to this Agreement.
"BOARD OF DIRECTORS" means the board of directors of the Company.
"BYLAWS" means the Bylaws of the Company as in effect from time to time.
"CLOSING" has the meaning given in the Merger Agreement.
"COMMISSION" means the Securities and Exchange Commission or any other
Federal agency at the time administering the Securities Act.
"COMMON STOCK" means the common stock of the Company now or hereafter
authorized to be issued.
"COMPANY" has the meaning given in the preamble to this Agreement.
"DIRECTOR" means a member of the Board of Directors.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission thereunder, all as the same shall be
in effect at the time.
"GROUP B DIRECTOR" means Xxxxxx, a Wachovia Director or a director who was
selected by the Group B Subcommittee of the Nominating Committee of the Board of
Directors for election to, or to fill a vacancy or newly created directorship
on, the Board of Directors pursuant to this Agreement or Section 3.2 of the
Bylaws.
"GROUP B SUBCOMMITTEE" means a subcommittee of the Nominating Committee of
the Board of Directors comprised solely of the Independent Wachovia Directors
serving on the Nominating Committee.
"HOLDING" means Comsys Holding, Inc., a Delaware corporation.
"INDEPENDENT WACHOVIA DIRECTOR" means any Wachovia Director who meets the
definition of independent director under applicable rules and listing standards
of the principal securities exchange or market on which the Common Stock is
listed or approved for trading.
"JUNIOR STOCKHOLDERS" means the holders of Common Stock listed on the
signature pages of this Agreement under the title "Junior Stockholders" and any
Affiliate thereof to which a Junior Stockholder transfers any shares of Common
Stock and which has agreed in writing to be bound by the terms of this
Agreement.
"MAJOR STOCKHOLDER" means any Wachovia Stockholder or Venturi Stockholder
that owned, at the Effective Time, directly or beneficially as part of the
Stockholder Group of which it is a part, greater than 10% of the then
outstanding Common Stock, as such ownership is reflected on the applicable
Schedules to this Agreement.
"MERGER" has the meaning given in the preliminary statements to this
Agreement.
"MERGER AGREEMENT" has the meaning given in the preliminary statements to
this Agreement.
"NOMINATING COMMITTEE" means the Nominating Committee of the Board of
Directors established pursuant to and in accordance with the Bylaws.
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"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder, as the same shall be in
effect at the time.
"SHARES" means shares of Common Stock.
"SPECIAL VOTING PERIOD" means the period commencing immediately after the
Effective Time (as defined in the Certificate of Incorporation) and ending on
the third anniversary of the Effective Time.
"STOCKHOLDER" means Xxxxxx or any Wachovia Stockholder, Junior Stockholder
or Venturi Stockholder.
"STOCKHOLDER GROUP" means each of the following three groups of
Stockholders: (a) the Stockholders comprising the Wachovia Stockholders shall be
one Stockholder Group, (b) the Stockholders comprising the Junior Stockholders
shall be one Stockholder Group and (c) the Stockholders comprising the Venturi
Stockholders shall be one Stockholder Group.
"STOCKHOLDER REPRESENTATIVE" has the meaning given in Section 4.18.
"STOCKHOLDERS" means, collectively, Xxxxxx, the Wachovia Stockholders, the
Junior Stockholders and the Venturi Stockholders.
"VENTURI STOCKHOLDERS" means the holders of Common Stock listed on the
signature pages of this Agreement under the title "Venturi Stockholders."
"WACHOVIA DIRECTOR" means (a) a director of the Company who was so
designated as a Wachovia Designee by Holding to serve on the Board of Directors
pursuant to Section 6.15(a) of the Merger Agreement, (b) any director of the
Company who was nominated for election as a director of the Company by the
Wachovia Stockholders or (c) any director who was nominated by the Wachovia
Stockholders to fill a vacancy that was held immediately prior to such vacancy
by a Wachovia Director or a newly created directorship on the Board of Directors
for which the Wachovia Stockholders would have the right to recommend an
additional nominee pursuant to this Agreement or Section 3.2 of the Bylaws.
"WACHOVIA STOCKHOLDERS" means the holders of Common Stock listed on the
signature pages of this Agreement under the title "Wachovia Stockholders" and
any Affiliate thereof to which a Wachovia Stockholder transfers any shares of
Common Stock and which has agreed in writing to be bound by the terms of this
Agreement.
"XXXXXX" means Xxxxxxx X. Xxxxxx.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations and Warranties of the Company. The Company
hereby represents and warrants to the other parties hereto as follows: The
Company has all requisite corporate power and authority to enter into this
Agreement and to consummate the transactions
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contemplated hereby. The execution and delivery by the Company of this
Agreement, and the consummation by the Company of the transactions contemplated
hereby, have been duly authorized by all necessary corporate action on the part
of the Company. This Agreement has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms. No consent,
approval, order or authorization of, or registration, declaration or filing
with, any court, administrative agency or commission or other governmental
authority or instrumentality, domestic or foreign, is required by, or with
respect to, the Company in connection with the execution and delivery of this
Agreement by the Company or the consummation by the Company of the transactions
contemplated hereby. The execution and delivery of this Agreement by the Company
and the consummation of the transactions contemplated hereby by the Company does
not conflict with, or result in a breach of, any law or regulation of any
governmental authority applicable to the Company or any material agreement to
which the Company is a party.
Section 2.2. Representations and Warranties of the Stockholders.
(a) Each Stockholder that is not a natural person, severally and not
jointly, hereby represents and warrants, as to itself only and not as to any
other Stockholder, to the other parties hereto as follows:
(i) Authority. The Stockholder has all requisite corporate,
partnership or limited liability company power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. The execution
and delivery by the Stockholder of this Agreement, and the consummation by the
Stockholder of the transactions contemplated hereby, have been duly authorized
by all necessary corporate, partnership or limited liability company action on
the part of the Stockholder. This Agreement has been duly executed and delivered
by the Stockholder and constitutes a valid and binding obligation of the
Stockholder, enforceable against the Stockholder in accordance with its terms.
No consent, approval, order or authorization of, or registration, declaration or
filing with, any court, administrative agency or commission or other
governmental authority or instrumentality, domestic or foreign, is required by,
or with respect to, the Stockholder in connection with the execution and
delivery of this Agreement by the Stockholder or the consummation by the
Stockholder of the transactions contemplated hereby. The execution and delivery
of this Agreement by the Stockholder and the consummation of the transactions
contemplated hereby by the Stockholder does not conflict with, or result in a
breach of, any law or regulation of any governmental authority applicable to the
Stockholder or any material agreement to which the Stockholder is a party.
(ii) Shares. As of the Effective Time, the Stockholder is the
record and beneficial owner of the number of Shares set forth across from such
Stockholder's name on Schedule 2.2(a)(ii).
(b) Each Stockholder that is a natural person, severally and not
jointly, hereby represents and warrants, as to itself only and not as to any
other Stockholder, to the other parties hereto as follows:
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(i) Authority. The Stockholder has all requisite power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery by the Stockholder of this
Agreement, and the consummation of the transactions contemplated hereby, have
been duly authorized by all necessary action on the part of the Stockholder and
does not conflict with, or result in a breach of, any law or regulation of any
governmental authority applicable to any the Stockholder or any material
agreement to which such the Stockholder is a party. This Agreement has been duly
executed and delivered by the Stockholder and constitutes a valid and binding
obligation, enforceable against the Stockholder in accordance with its terms.
(ii) Shares. As of the Effective Time, the Stockholder is the
record and beneficial owner of the number of Shares set forth across from such
Stockholder's name on Schedule 2.2(b)(ii).
ARTICLE III
CORPORATE GOVERNANCE; CERTAIN CORPORATE ACTIONS
Section 3.1. Voting of Shares; Company Actions.
(a) From and after the date hereof and until the termination of the
Special Voting Period, each Stockholder shall vote all Shares owned or
controlled by such Stockholder, and shall take all other necessary or desirable
actions within such Stockholder's control (including, if permitted, attendance
at meetings in person or by proxy for purposes of obtaining a quorum and, if
permitted, execution of written consents in lieu of meetings), so that the
composition of the Board of Directors and the manner of selecting members
thereof shall be as set forth in Article Fifth of the Company's Certificate of
Incorporation, Section 3.2 of the Bylaws and this Article III, and to otherwise
effectuate the provisions of this Agreement.
(b) From and after the date hereof, the Company shall take all
necessary or desirable actions within its control (including calling special
board and stockholder meetings) to effectuate the provisions of this Agreement.
Section 3.2. Composition of the Board of Directors.
(a) Election of Xxxxxxx Xxxxxx. During the Special Voting Period,
for so long as he is the Chief Executive Officer of the Company, the Company
shall nominate Xxxxxxx Xxxxxx to serve as a Director of the Company, and include
Xx. Xxxxxx as a nominee in its proxy statement to be distributed to stockholders
in connection with the annual meeting of stockholders. In the event the
nomination rights set forth in this provision are not permitted by applicable
Nasdaq rules, or if the Company's Common Stock is not then traded on the Nasdaq
National Market, the comparable requirements of the principal securities
exchange or market on which the Company's Common Stock is then listed or
approved for trading, the Nominating Committee will then have the exclusive
delegated authority of the Board to fill the directorship contemplated hereby.
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(b) Nomination Rights. The following provisions shall apply during
the Special Voting Period and in each case to the extent permitted by applicable
law and by applicable rules and listing standards of the principal securities
exchange or market on which the Common Stock is listed or approved for trading:
Prior to each annual meeting of stockholders of the Company during the Special
Voting Period, the Wachovia Stockholders and, if they fail to do so, the Group B
Subcommittee will, subject to the procedures and qualification requirements set
forth in this Agreement, have the right to designate nominees for directors to
be elected by the stockholders at such annual meeting as follows:
NUMBER OF DIRECTOR DESIGNEES
WACHOVIA STOCKHOLDERS HAVE
SIZE OF WHOLE BOARD THE RIGHT TO DESIGNATE
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9 4
10 5
11 5
12 6
13 6
(c) Vacancies and Newly Created Directorships. Subject to the
procedures and qualification requirements of Section 3.2 of the Bylaws, the
Wachovia Stockholders shall have the right to recommend to the Group B
Subcommittee nominees to fill any vacancy on the Board, or any committee
thereof, that was held immediately prior to such vacancy by a Wachovia Director,
and to fill any newly created directorship for which the Wachovia Stockholders
would have the right to designate an additional nominee pursuant to paragraph
(b) above. The Group B Subcommittee shall have the exclusive delegated authority
of the Board to fill any such vacancy. Subject to its fiduciary duties, the
Group B Subcommittee shall fill such vacancy with the Wachovia Stockholder
nominee and, absent a recommendation from the Wachovia Stockholders, the Group B
Subcommittee shall fill any such vacancy with a nominee of its choosing. In the
event the Group B Subcommittee fails to fill any such vacancy or newly created
directorship pursuant to the procedures and qualification requirements of
Section 3.2 of the Bylaws, the Nominating Committee will then have the exclusive
delegated authority of the Board to fill such vacancy or newly created
directorship until the next annual meeting of stockholders, and the person so
chosen will not be considered a Wachovia Director and will not be required to
meet the qualification requirements of paragraph (d) below.
(d) Qualification Requirements. The Wachovia Stockholders will not
have the right to designate nominees for election as directors and the Group B
Subcommittee will not have the right to fill a vacancy or newly created
directorship for a Wachovia Director unless, after giving effect to the election
of such nominees or the filling of such vacancies or newly
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created directorships, there would be at least three (3) Independent Wachovia
Directors, one of whom meets the definition of Audit Committee Independent
Director set forth in the Bylaws; provided, however, that if the size of the
Board is 12 or 13, there must be at least four (4) Independent Wachovia
Directors.
(e) Procedures. The Wachovia Stockholders shall inform the Company
in writing of its recommended nominees for election of directors to the Board of
Directors by delivering written notice thereof not less than forty (40) days
prior to the mailing of the Company's proxy statement to be distributed to
stockholders in connection with the annual meeting of stockholders; provided,
that the Company shall give the Wachovia Stockholders at least sixty (60) days
prior written notice of such mailing date. The notice to the Company shall also
contain such information relating to such nominees as is required to be
disclosed in a proxy statement or other filings required to be made by the
Company in connection with the solicitation of proxies for election of directors
pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder, and from which the Board can determine that the
qualification requirements set forth in paragraph (d) above have been satisfied;
provided, however, that if any such notice does not contain such information,
the Wachovia Stockholders shall provide such information within five business
days after written request therefor.
(f) Dissolution. The Group B Subcommittee shall be dissolved, if at
all, in accordance with Section 3.2(b)(ii)(G) of the Bylaws.
Section 3.3. Nomination Rights Following Expiration of the Special Voting
Period. Upon expiration of the Special Voting Period, a Major Stockholder will
have the right to designate nominees for Directors to be elected by the
stockholders at such annual meeting as set forth in the table below, in each
case to the extent permitted by applicable law and by applicable rules and
listing standards of the principal securities exchange or market on which the
Common Stock is listed or approved for trading; provided, however, that:
(a) such Major Stockholder has continuously held shares of the
Common Stock from the date of this Agreement through and including the time the
nomination right, if any, available to such Major Stockholder is exercised;
(b) only shares of Common Stock held (i) directly by such Major
Stockholder or (ii) by other Stockholders in such Major Stockholder's
Stockholder Group and beneficially owned by such Major Stockholder will be
counted for purposes of determining the percentage of outstanding shares of
Common Stock held by such Major Stockholder;
(c) only one Major Stockholder from each Stockholder Group shall
have nomination rights pursuant to this Section 3.3; and
(d) if after the expiration of the Special Voting Period the
percentage of outstanding Common Stock owned by a Major Stockholder is reduced
so as to cause the number of Director Designees such Major Stockholder would
have the right to designate pursuant to this Section 3.3 to be reduced, then the
maximum number of Director Designees such Major
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Stockholder will have the right to designate pursuant to this Section 3.3 shall
be permanently reduced to such number of Director Designees.
PERCENTAGE OF OUTSTANDING COMMON STOCK HELD BY NUMBER OF DIRECTOR DESIGNEES STOCKHOLDER HAS
STOCKHOLDER THE RIGHT TO DESIGNATE
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30% OR GREATER 3
> or = 20% AND < 30% 2
> or = 10% AND < 20% 1
< 10% 0
Section 3.4. Termination of Voting Obligations. From and after the
termination of the Special Voting Period, the provisions of Section 3.1(a) shall
terminate and be of no further force or effect, and the Stockholders shall
thereafter have no obligation under this Agreement with respect to (i) the
voting of any of their respective shares of Common Stock, including any
obligation to vote for nominees nominated pursuant to Section 3.3, or (ii) the
taking of any actions described in Section 3.1 with respect to the composition
of the Board of Directors.
Section 3.5. Observer Rights.
(a) During the Special Voting Period, so long as the Junior
Stockholders continue to hold at least 50% of the shares of Common Stock they
held as of the Effective Time, the Company shall permit two representatives of
the Junior Stockholders, in each case designated by their Stockholder
Representative, to attend as an observer all meetings of its Board of Directors.
(b) During the Special Voting Period, so long as the Venturi
Stockholders continue to hold at least 50% of the shares of Common Stock they
held as of the Effective Time, the Company shall permit one representative of
the Venturi Stockholders, designated by the Venturi Stockholder Representative,
to attend as an observer all meetings of its Board of Directors.
(c) Each representative appointed pursuant to Section 3.5(a) and
3.5(b) shall be entitled to (i) receive all written materials and other
information (including, without limitation, copies of meeting minutes) given to
Directors in connection with such meetings at the same time such materials and
information are given to the Directors, and, upon reasonable notice and during
normal business hours (ii) visit and inspect any of the properties of the
Company and its Subsidiaries and (iii) discuss the affairs, finances and
accounts of any such entities with the Directors, officers and key employees of
the Company and its Subsidiaries. All travel and other expenses incurred by a
representative in connection with attending any meeting of the Board of
Directors or otherwise in connection with the rights granted in this Section 3.5
shall be the responsibility of such representative and/or the Stockholder Group
by which such representative was designated. The Company shall have no liability
or obligation with respect to such expenses.
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(d) As a condition to attending any meetings of the Board of
Directors and receiving the written materials and other information contemplated
in Section 3.5(c), each representative must enter into a confidentiality and
non-use agreement, in form satisfactory to the Company, pursuant to which such
representative agrees not to, without the prior written consent of the Company,
disclose to any third party any information obtained about the Company or its
operations or business which it may have acquired pursuant to this Agreement and
the observer rights granted hereunder; provided, however, that any information
that is otherwise publicly available, without breach of this provision, or has
been obtained from a third party without a breach of such third party's duties,
shall not be deemed confidential information. Notwithstanding anything to the
contrary set forth in this Section 3.5, the Company reserves the right to
exclude any representative from access to any material or meeting or portion
thereof if the Company believes (i) upon advice of counsel that such exclusion
is reasonably necessary to preserve the attorney-client privilege, to protect
highly confidential proprietary information, to satisfy the fiduciary duties of
the Board of Directors or for other similar reasons or (ii) that such
representative has or intends to use information obtained about the Company or
its operations or business which it may have acquired pursuant to this Agreement
or the observer rights granted hereunder for unlawful or improper purposes. Each
representative shall be subject to recusal in any circumstance in which a
Director would be subject to recusal.
ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 4.1. Entire Agreement. This Agreement, together with the Schedules
hereto, constitutes the entire agreement and understanding of the parties in
respect of the subject matter hereof and supersedes all prior understandings,
agreements or representations by or among the parties, written or oral, to the
extent they relate in any way to the subject matter hereof. There are no third
party beneficiaries having rights under or with respect to this Agreement.
Section 4.2. Assignment. Except as provided in this Section 4.2 and in
Section 4.3, no party may assign either this Agreement or any of its rights,
interests or obligations hereunder without the prior written approval of the
other parties. All of the terms, agreements, covenants, representations,
warranties and conditions of this Agreement are binding upon, and inure to the
benefit of and are enforceable by, the parties and their respective successors
and permitted assigns. Notwithstanding the foregoing, a Stockholder may, without
the consent of any of the parties hereto, assign its rights and obligations
hereunder to an Affiliate in connection with the sale or other transfer to such
Affiliate of shares of such Stockholder's Common Stock.
Section 4.3. Transfers of Shares. Except as set forth in Section 4.2, any
transfer of shares of Common Stock by a Stockholder (other than to an Affiliate
of such Stockholder or to a party to this Agreement) will be free and clear of
any and all rights and obligations under this Agreement; provided, however, that
any purported sale or other transfer by a Stockholder of 30% or more of the
outstanding Common Stock (other than to an Affiliate of such Stockholder or to a
party to this Agreement) shall be void and have no effect unless the party to
whom such shares are transferred has agreed in writing to be bound by the terms
and conditions of this Agreement.
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Section 4.4. Notices. All notices, requests and other communications
provided for or permitted to be given under this Agreement must be in writing
and shall be given by personal delivery, by certified or registered United
States mail (postage prepaid, return receipt requested), by a nationally
recognized overnight delivery service for next day delivery, or by facsimile
transmission, as follows (or to such other address as any party may give in a
notice given in accordance with the provisions hereof):
If to a Stockholder: To the address given under such Stockholder's
name on the Signature Pages.
If to the Company:
COMSYS IT Partners, Inc.
0000 Xxxx Xxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
Facsimile: 000-000-0000
with a copy (which will not constitute notice) to:
Akin Gump Xxxxxxx Xxxxx & Xxxx LLP
0000 Xxxxxxx Xxxxxx, Xxx. 0000
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxx, P.C.
Facsimile: 214-969-4343
All notices, requests or other communications will be effective and deemed given
only as follows: (i) if given by personal delivery, upon such personal delivery,
(ii) if sent by certified or registered mail, on the fifth business day after
being deposited in the United States mail, (iii) if sent for next day delivery
by overnight delivery service, on the date of delivery as confirmed by written
confirmation of delivery, (iv) if sent by facsimile, upon the transmitter's
confirmation of receipt of such facsimile transmission, except that if such
confirmation is received after 5:00 p.m. (in the recipient's time zone) on a
business day, or is received on a day that is not a business day, then such
notice, request or communication will not be deemed effective or given until the
next succeeding business day. Notices, requests and other communications sent in
any other manner, including by electronic mail, will not be effective.
Section 4.5. Specific Performance; Remedies. Each party acknowledges and
agrees that the other parties would be damaged irreparably if any provision of
this Agreement were not performed in accordance with its specific terms or were
otherwise breached. Accordingly, the parties will be entitled to an injunction
or injunctions to prevent breaches of the provisions of this Agreement and to
enforce specifically this Agreement and its provisions in any action or
proceeding instituted in any state or federal court sitting in the State of
Delaware having jurisdiction over the parties and the matter, in addition to any
other remedy to which they may be entitled, at law or in equity. Except as
expressly provided herein, the rights, obligations and
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remedies created by this Agreement are cumulative and in addition to any other
rights, obligations or remedies otherwise available at law or in equity. Except
as expressly provided herein, nothing herein will be considered an election of
remedies.
Section 4.6. Submission to Jurisdiction; No Jury Trial.
(a) Submission to Jurisdiction. Any action, suit 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 shall
only be brought in any federal court located in the State of Delaware or any
Delaware state court, and each party consents to the exclusive jurisdiction and
venue of such courts (and of the appropriate appellate courts therefrom) in any
such action, suit or proceeding and irrevocably waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to the laying
of the venue of any such, action, suit or proceeding in any such court or that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum. Process in any such action, suit or proceeding may be
served on any party anywhere in the world, whether within or without the
jurisdiction of any such court. Without limiting the foregoing, service of
process on such party as provided in Section 4.4 shall be deemed effective
service of process on such party.
(b) Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES THAT ANY DISPUTE
THAT MAY ARISE OUT OF OR RELATING TO THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE SUCH PARTY HEREBY EXPRESSLY
WAIVES ITS RIGHT TO JURY TRIAL OF ANY DISPUTE BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR ANY OTHER AGREEMENTS RELATING HERETO OR ANY DEALINGS AMONG THEM
RELATING TO THE TRANSACTIONS CONTEMPLATED HEREBY. THE SCOPE OF THIS WAIVER IS
INTENDED TO ENCOMPASS ANY AND ALL ACTIONS, SUITS AND PROCEEDINGS THAT RELATE TO
THE SUBJECT MATTER OF THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING CONTRACT
CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND
STATUTORY CLAIMS. EACH PARTY REPRESENTS THAT (i) NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT IN THE EVENT OF ANY ACTION, SUIT OR PROCEEDING, SEEK TO
ENFORCE THE FOREGOING WAIVER, (ii) SUCH PARTY UNDERSTANDS AND WITH THE ADVICE OF
COUNSEL HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) SUCH PARTY MAKES
THIS WAIVER VOLUNTARILY, AND (iv) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND REPRESENTATIONS IN THIS
SECTION 4.6(b).
Section 4.7. Headings. The article and section headings contained in this
Agreement are inserted for convenience only and will not affect in any way the
meaning or interpretation of this Agreement.
Section 4.8. Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the State of Delaware, without giving
effect to any choice of law
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principles or conflicts of law rules (whether of the State of Delaware or any
other jurisdiction) that would result in the application of the substantive or
procedural laws of any other jurisdiction and, as applicable the federal laws of
the United States.
Section 4.9. Amendment. This Agreement may not be amended or modified
except by a writing signed by all of the parties.
Section 4.10. Extensions; Waivers. Any party may, for itself only, (a)
extend the time for the performance of any of the obligations of any other party
under this Agreement, (b) waive any inaccuracies in the representations and
warranties of any other party contained herein or in any document delivered
pursuant hereto and (c) waive compliance with any of the agreements or
conditions for the benefit of such party contained herein. Any such extension or
waiver will be valid only if set forth in a writing signed by the party to be
bound thereby. No waiver by any party of any default, misrepresentation or
breach of warranty or covenant hereunder, whether intentional or not, may be
deemed to extend to any prior or subsequent default, misrepresentation or breach
of warranty or covenant hereunder or affect in any way any rights arising
because of any prior or subsequent such occurrence. Neither the failure nor any
delay on the part of any party to exercise any right or remedy under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right or remedy preclude any other or further exercise of the
same or of any other right or remedy.
Section 4.11. Severability. The provisions of this Agreement will be
deemed severable and the invalidity or unenforceability of any provision will
not affect the validity or enforceability of the other provisions hereof;
provided that if any provision of this Agreement, as applied to any party or to
any circumstance, is judicially determined not to be enforceable in accordance
with its terms, the parties agree that the court judicially making such
determination may modify the provision in a manner consistent with its
objectives such that it is enforceable, and/or to delete specific words or
phrases, and in its modified form, such provision will then be enforceable and
will be enforced.
Section 4.12. Expenses. Except as otherwise expressly provided in this
Agreement, each party will bear its own costs and expenses incurred in
connection with the preparation, execution and performance of this Agreement and
the transactions contemplated hereby, including all fees and expenses of agents,
representatives, financial advisors, legal counsel and accountants.
Section 4.13. Counterparts; Effectiveness. This Agreement may be executed
in two or more counterparts, each of which will be deemed an original but all of
which together will constitute one and the same instrument. This Agreement will
become effective when one or more counterparts have been signed by each of the
parties and delivered to the other parties. For purposes of determining whether
a party has signed this Agreement or any document contemplated hereby or any
amendment or waiver hereof, only a handwritten original signature on a paper
document or a facsimile copy of such a handwritten original signature shall
constitute a signature, notwithstanding any law relating to or enabling the
creation, execution or delivery of any contract or signature by electronic
means.
12
Section 4.14. Construction. This Agreement has been freely and fairly
negotiated among the parties. If an ambiguity or question of intent or
interpretation arises, this Agreement will be construed as if drafted jointly by
the parties and no presumption or burden of proof will arise favoring or
disfavoring any party because of the authorship of any provision of this
Agreement. Any reference to any law will be deemed also to refer to such law as
amended and all rules and regulations promulgated thereunder, unless the context
requires otherwise. The words "include," "includes," and "including" will be
deemed to be followed by "without limitation." Pronouns in masculine, feminine,
and neuter genders will be construed to include any other gender, and words in
the singular form will be construed to include the plural and vice versa, unless
the context otherwise requires. The words "this Agreement," "herein," "hereof,"
"hereby," "hereunder," and words of similar import refer to this Agreement as a
whole and not to any particular subdivision unless expressly so limited. The
parties intend that each representation, warranty, and covenant contained herein
will have independent significance. If any party has breached any
representation, warranty, or covenant contained herein in any respect, the fact
that there exists another representation, warranty or covenant relating to the
same subject matter (regardless of the relative levels of specificity) which the
party has not breached will not detract from or mitigate the fact that the party
is in breach of the first representation, warranty, or covenant.
Section 4.15. Confidentiality. No party to this Agreement, nor any of
their respective Affiliates, employees, agents or representatives, shall
disclose to any third party any information obtained about the Company or its
operations or business which it may have acquired pursuant to this Agreement
without the prior written consent of the Company; provided, that any information
that is otherwise publicly available, without breach of this provision, or has
been obtained from a third party without a breach of such third party's duties,
shall not be deemed confidential information.
Section 4.16. Termination.
(a) The rights and obligations specified in Sections 3.1 and 3.2
shall terminate automatically at the end of the Special Voting Period.
(b) The rights and obligations specified in Section 3.3 shall
terminate automatically on the date on which no Major Stockholder owns more than
10% of the issued and outstanding shares of Common Stock.
(c) The rights and obligations specified in Section 3.5 shall
terminate automatically on the earlier of (A) the end of the Special Voting
Period and (B) (i) as to the Venturi Stockholders, the date on which the Venturi
Stockholders and (ii) as to the Junior Stockholders, the date on which the
Junior Stockholders, hold less than 50% of the shares of Common Stock they held
as of the Effective Time.
(d) This Agreement shall terminate and cease to be binding on any
particular Stockholder on the date on which such Stockholder ceases to own any
shares of Common Stock.
13
Section 4.17. Effective Time. Notwithstanding anything herein to the
contrary, this Agreement shall become effective at the Effective Time of the
Merger, and the representations and warranties contained herein shall be deemed
made as of the Effective Time.
Section 4.18. Stockholder Representative. For administrative convenience,
each Stockholder Group shall designate an individual to serve as such group's
representative (each a "STOCKHOLDER REPRESENTATIVE") for purposes of this
Agreement to take action on behalf of such Stockholder group in connection with
this Agreement. The initial Stockholder Representative of each Stockholder Group
is identified on Schedule 4.18 and may be changed from time to time by the
applicable Stockholder Group upon notice given to the other parties pursuant to
Section 4.4 and executed by each member of such Stockholder Group. Each Wachovia
Stockholder, Junior Stockholder and Venturi Stockholder hereby appoints the
initial Stockholder Representative and each person or entity who is, from time
to time, duly appointed under this Section 4.18 as the Stockholder
Representative of the Stockholder Group to which such Stockholder is a member to
give any consent or approval, exercise any right or take any action contemplated
under this Agreement on behalf of such Stockholder. The members of each
Stockholder Group shall be bound by such Stockholder Group's Stockholder
Representative and the parties to this Agreement shall be entitled to rely on
the actions taken by the any Stockholder Representative under this Agreement.
[SIGNATURE PAGES FOLLOW]
14
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their authorized representatives as of the date stated in the introductory
paragraph of this Agreement.
VENTURI PARTNERS, INC.
By: /s/ Xxx X. Xxxxxxxx, Xx.
Name: Xxx X. Xxxxxxxx, Xx.
Title: Senior Vice President, General Counsel
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxx, Individually
THE WACHOVIA STOCKHOLDERS:
WACHOVIA INVESTORS, INC.
By: /s/ Xxxxxxxx Xxxxxxxx
Name: Xxxxxxxx Xxxxxxxx
Title: Vice President
Address: Wachovia Capital Partners
One Wachovia Center, 12th Floor
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxxx, Principal
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P.
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
Attn: T. Xxxxxxx Xxxxxxxxxxx
Fax: (000) 000-0000
[Signature Page to Voting Agreement]
THE JUNIOR STOCKHOLDERS:
X.X. XXXXXX DIRECT CORPORATE FINANCE INSTITUTIONAL
INVESTORS LLC
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
Address: X.X. Xxxxxx Investment Mgmt., Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: _____________________________________
Fax: (000) 000-0000
X.X. XXXXXX DIRECT CORPORATE FINANCE PRIVATE
INVESTORS LLC
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
Address: X.X. Xxxxxx Investment Mgmt., Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: _____________________________________
Fax: (000) 000-0000
000 XXXXX XXXXXX FUND, L.P.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
Address: X.X. Xxxxxx Investment Mgmt., Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: _____________________________________
Fax: (000) 000-0000
[Signature Page to Voting Agreement]
OLD TRAFFORD INVESTMENT PTE LTD.
By: /s/ Lim Xxxx Xxx
Name: Lim Xxxx Xxx
Title: Director
Address: GIC Special Investments, Pte. Ltd.
000 X. 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: _____________________________________
Fax: (0000) 000-0000
GTCR FUND VI, L.P.
By: /s/ Xxx Xxx
Name: Xxx Xxx
Title: Principal
Address: GTCR Xxxxxx Xxxxxx, LLC
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attn: _____________________________________
Fax: (000) 000-0000
GTCR VI EXECUTIVE FUND, L.P.
By: /s/ Xxx Xxx
Name: Xxx Xxx
Title: Principal
Address: GTCR Xxxxxx Xxxxxx, LLC
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attn: ____________________________________
Fax: (000) 000-0000
[Signature Page to Voting Agreement]
GTCR ASSOCIATES VI
By: /s/ Xxx Xxx
Name: Xxx Xxx
Title: Principal
Address: GTCR Xxxxxx Xxxxxx, LLC
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attn: _____________________________________
Fax: (000) 000-0000
[Signature Page to Voting Agreement]
THE VENTURI STOCKHOLDERS:
INLAND PARTNERS, L.P.
By: Coryton Management Ltd., its general
partner
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Attorney-in-Fact
Address: ______________________________
______________________________
______________________________
LINKS PARTNERS, L.P.
By: Coryton Management Ltd., its general partner
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Attorney-in-Fact
Address: ______________________________
______________________________
______________________________
AMALGAMATED GADGET, L.P.
By: Scepter Holdings, Inc., its general partner
By: ___________________________________
Name: _________________________________
Title:_________________________________
Address:_______________________________
_______________________________
_______________________________
[Signature Page to Voting Agreement]
ZAZOVE ASSOCIATES, LLC
By:____________________________________
Name:__________________________________
Title:_________________________________
Address:_______________________________
_______________________________
_______________________________
[Signature Page to Voting Agreement]
SCHEDULE 2.2(a)(ii)
Stockholder Shares (non-natural person)
STOCKHOLDER SHARES
----------- ------
Wachovia Investors, Inc. 7,310,395
X.X. Xxxxxx Direct Corporate Finance Institutional Investors LLC 232,997
X.X. Xxxxxx Direct Corporate Finance Private Investors LLC 60,846
000 Xxxxx Xxxxxx Fund, L.P. 0
Old Trafford Investment Pte Ltd. 329,999
GTCR Fund VI, L.P. 31,944
GTCR VI Executive Fund, L.P. 222
GTCR Associates VI 70
Inland Partners, L.P. 692,167
Links Partners, L.P. 692,167
SCHEDULE 2.2(b)(ii)
Stockholder Shares (natural person)
STOCKHOLDER SHARES
----------- ------
XXXXXXX X. XXXXXX 688,864
Schedule 4.18
Initial Stockholder Representatives
STOCKHOLDER GROUP INITIAL STOCKHOLDER REPRESENTATIVE
----------------- ----------------------------------
Wachovia Stockholder Group Xxxxxxxxx X. Xxxxxx XX
Junior Stockholder Group Xxx Xxxxxxx
Venturi Stockholder Group Xxxxx X. Xxxx
