Exhibit 99.2
EXECUTION COPY
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CPI VOTING AGREEMENT
by and between
CPI DEVELOPMENT CORPORATION,
ARMKEL, LLC
and
MCC ACQUISITION HOLDINGS CORPORATION
Dated: May 7, 2001
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CPI VOTING AGREEMENT
This CPI Voting Agreement is made and entered into as of May 7, 2001 this
("Agreement"), by and among MCC Acquisition Holdings Corporation, a Delaware
corporation ("Buyer"), Armkel, LLC, a Delaware limited liability company
("Assets Buyer") and CPI Development Corporation, a Delaware corporation ("CPI")
(each, a "Party" and, collectively, the "Parties").
RECITALS
WHEREAS, concurrently with the execution and delivery of this Agreement,
Xxxxxx-Xxxxxxx Inc., a Delaware corporation (the "Company"), CPI, Buyer, MCC
Merger Sub Corporation, a Delaware corporation and a wholly owned subsidiary of
Buyer ("Company Merger Sub"), and MCC Acquisition Sub Corporation, a Delaware
corporation and a wholly owned subsidiary of Buyer ("CPI Merger Sub"), have
executed and delivered an Agreement and Plan of Merger, dated as of the date
hereof (the "Merger Agreement"), providing for, among other things, the merger
of CPI Merger Sub with and into CPI (the "CPI Merger") and the merger of Company
Merger Sub with and into the Company (the "Company Merger") which Merger
Agreement has been unanimously approved by the Boards of Directors of the
Company, Buyer, Company Merger Sub and CPI Merger Sub;
WHEREAS, concurrently with the execution and delivery of this Agreement,
the Company and Assets Buyer have executed and delivered an Asset Purchase
Agreement, dated as of May 7, 2001 (including the exhibits, schedules and
annexes thereto, the "Asset Purchase Agreement"), providing for, among other
things, the sale, conveyance, transfer, assignment and delivery to Assets Buyer
of all of the Company's and its affiliates' rights, title and interest in and to
the Purchased Assets (as defined in the Asset Purchase Agreement; such sales,
transfers, assignments, purchases, acceptances, and assumptions collectively,
the "Assets Purchase") which Asset Purchase Agreement has been unanimously
approved by the Board of Directors of the Company and the Assets Buyer;
WHEREAS, CPI is the record owner of 11,754,000 shares of Common Stock, par
value $1.00 per share, of the Company (each a "Common Share"), and 11,754,000
shares of Class B Common Stock, par value $1.00 per share, of the Company (each
a "Class B Common Share"); and
WHEREAS, as a condition to entering into the Merger Agreement and the Asset
Purchase Agreement, Buyer and Assets Buyer have required that CPI agree, and, in
order to induce Assets Buyer, Buyer, Company Merger Sub and CPI Merger Sub to
enter into the Merger Agreement and the Asset Purchase Agreement, CPI has agreed
to enter into this Agreement relating to the voting of the Company Shares in
connection with the Company Merger and the Assets Purchase.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained and for other good and valuable consideration,
the receipt and adequacy of which is hereby acknowledged, the Parties, intending
to be legally bound, hereby agree as follows:
1. Certain Definitions. Except as specified herein, capitalized terms used
in this Agreement shall have the meanings assigned to such terms in the Merger
Agreement as originally executed and delivered. If any definitions in the Merger
Agreement have been amended, such amendment shall only be given effect for
purposes of this agreement if and only if a corresponding change has been made
to the Asset Purchase Agreement.
2. Agreement to Vote
(a) Voting. CPI hereby agrees to vote (or cause to be voted), 11,750,000
Common Shares and 11,750,000 Class B Common Shares (collectively, the "Company
Shares") owned by CPI (and any and all securities issued or issuable in respect
thereof), at any annual, special or other meeting of the stockholders of the
Company, and at any adjournment or adjournments thereof:
(i) in favor of the approval of the Company Merger and the other
transactions contemplated by the Merger Agreement (including the
transactions pursuant to the Asset Purchase Agreement) and in favor of the
approval and adoption of the Merger Agreement, and all actions required in
furtherance thereof;
(ii) in favor of the approval of the Assets Purchase and the other
transactions contemplated by the Asset Purchase Agreement and all actions
required in furtherance thereof;
(iii) against any Acquisition Proposal (other than (A) the Company
Merger and the Assets Purchase, (B) any Substitute Merger Agreement (as
defined in the Asset Purchase Agreement) and the transactions contemplated
thereby (the "Substitute Merger") and (C) any Substitute APA and the
transactions contemplated thereby (the "Substitute Asset Purchase"); and
(iv) against any amendment of the Company's Certificate of
Incorporation or Bylaws which amendment would in any manner prevent or
materially impede, interfere with or delay the Company Merger, the Merger
Agreement, the Assets Purchase, the Asset Purchase Agreement, or any of the
transactions contemplated thereby;
(b) Intentionally Omitted.
3. Grant of Irrevocable Proxy.
(a) Proxy. CPI hereby irrevocably grants to and appoints Buyer and Assets
Buyer (and each officer of Buyer and Assets Buyer designated by Buyer and Assets
Buyer respectively), CPI's proxy and attorney-in-fact (with full power of
substitution), for and in the name, place and stead of CPI, to vote at a meeting
of stockholders (or cause to be voted) all of the Company Shares owned by CPI
(and any and all securities issued or issuable in respect thereof), or as to
which CPI has voting control, solely with respect to the matters set forth
below, at any annual, special or other meeting of the stockholders of the
Company, and at any adjournment or adjournments thereof:
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(i) in favor of the approval of the Company Merger and the other
transactions contemplated by the Merger Agreement (including the
transactions pursuant to the Asset Purchase Agreement) and in favor of the
approval and adoption of the Merger Agreement, and all actions required in
furtherance thereof;
(ii) in favor of the approval of the Assets Purchase and the other
transactions contemplated by the Asset Purchase Agreement and all actions
required in furtherance thereof;
(iii) against any Acquisition Proposal (other than (A) the Company
Merger and the Assets Purchase, (B) any Substitute Merger Agreement (as
defined in the Asset Purchase Agreement) and any Substitute Merger) and (C)
any Substitute APA and any Substitute Asset Purchase); and
(iv) against any amendment of the Company's Certificate of
Incorporation or Bylaws which amendment would in any manner prevent or
materially impede, interfere with or delay the Company Merger, the Merger
Agreement, the Assets Purchase, the Asset Purchase Agreement or any of the
transactions contemplated thereby;
(b) Duration CPI hereby affirms that the irrevocable proxy granted to Buyer
set forth in this Section 3 will be valid until (but not beyond) the earlier of
the Termination Time or the Healthcare Termination Time (as defined in Section
8(b)) and is given to secure the performance of the obligations of CPI under
this Agreement. CPI hereby affirms that the irrevocable proxy granted to Assets
Buyer set forth in this Section 3 will be valid until (but not beyond) the
earlier of the Termination Time or the Consumer Termination Time (as defined in
Section 8(b)) and is given to secure the performance of the obligations of CPI
under this Agreement. CPI hereby revokes any proxy previously granted by it with
respect to its Company Shares and further affirms that each proxy hereby granted
shall, until (but not beyond) the requisite times set forth in the preceding two
sentences, be irrevocable and shall be deemed coupled with an interest, in
accordance with the Delaware General Corporation Law (the "DGCL").
4. Restrictions on Transfer; No Conversion; No Solicitation.
(a) Except as provided in this Agreement, CPI shall not sell, transfer,
assign, pledge, or otherwise dispose of, or enter into any contract, option or
other agreement with respect to the sale, transfer, assignment or other
disposition of the Company Shares now owned beneficially or of record or
hereafter acquired by CPI (or any interest contained therein) at any time prior
to the Termination Time. CPI shall not, prior to the Termination Time, convert
any Company Shares that are Class B Common Stock into Common Stock.
(b) CPI shall and shall cause its officers and directors to comply with the
provisions of Section 6.2 of the Merger Agreement and Section 8.11 of the Asset
Purchase Agreement (without giving effect to the proviso (except in the case of
any officer or director of CPI who is an officer or director of the Company) in
the first sentence of each such Section).
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5. Additional Shares. Without limiting the provisions of the Merger
Agreement, in the event (i) of any stock dividend, stock split,
recapitalization, reclassification, combination or exchange of shares of capital
stock of the Company on, of or affecting the Company Shares or (ii) CPI becomes
the record owner of any additional shares of Company Shares or other securities
entitling the holder thereof to vote or give consent with respect to the matters
set forth in Section 2, then the terms of this Agreement shall apply to the
shares of capital stock or other securities of the Company held by CPI
immediately following the effectiveness of the events described in clause (i) or
CPI becoming the record owner thereof, as described in clause (ii), as though
they were Company Shares hereunder. CPI hereby agrees to promptly notify (x)
until the Healthcare Termination Time, the Buyer and (y) until the Consumer
Termination Time, the Assets Buyer of the number of any new shares of Company
Shares or other voting securities of the Company acquired by CPI, if any, after
the date hereof and prior to the Termination Time.
6. Dividends. CPI shall retain record and beneficial ownership of all
Company Shares and be entitled to receive all cash dividends paid by the Company
with respect to the Company Shares during the term of this Agreement.
7. Representations and Warranties.
(a) Organization and Due Authority. Each Party hereby represents and
warrants to the other Party that (i) such Party is duly organized, validly
existing, and in good standing under the laws of the jurisdiction of its
organization and (ii) such Party has all requisite power and authority to
execute and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby.
(b) Binding Agreement. Each Party hereby represents and warrants to the
other Party that (i) the execution, delivery and performance by such Party of
this Agreement and the consummation of the transactions contemplated hereby have
been duly authorized by all necessary action on the part of such Party and (ii)
this Agreement has been duly executed and delivered by such Party and is a
legal, valid and binding obligation of such Party, enforceable against it in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or affecting the enforcement of creditors' rights in general and by general
principles of equity.
(c) Noncontravention. Each Party hereby severally and not jointly
represents and warrant to the other Party that neither the execution and
delivery of this Agreement by such Party nor the consummation by such Party of
the transactions contemplated hereby will (i) conflict with any provision of
such Party's Certificate of Incorporation or Bylaws or similar organizational
documents, (ii) violate or result in a breach of any material contract to which
such Party is a party or (iii) violate any law to which such Party is subject.
(d) Ownership of Company Shares. Except to the extent that the stockholders
of CPI (and their beneficiaries) are deemed to beneficially own the Company
Shares, CPI is the record and beneficial owner of the Company Shares, free and
clear of any and all liens, options or restrictions on the right to vote or
grant a consent with respect to such Company Shares, except for such liens and
restrictions arising under this Agreement or as set forth in the CPI Disclosure
Letter. CPI shall notify any existing pledgee of Company Shares of this
Agreement.
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CPI has the exclusive power to vote the Company Shares, except as provided
in this Agreement. The Company Shares represent all the shares of capital stock
of the Company owned of record and beneficially by CPI.
8. General Provisions.
(a) Specific Performance. The Parties agree that a violation, breach or
threatened breach by any other Party of any term of this Agreement would cause
irreparable injury for which an adequate remedy at law is not available.
Therefore, the Parties agree that each Party shall have the right of specific
performance and, accordingly, shall be entitled to an injunction, restraining
order or other form of equitable relief, in addition to any and all other rights
and remedies at law or in equity, restraining any other Party from committing
any breach or threatened breach of, or otherwise specifically to enforce, any
provision of this Agreement and all such rights will be cumulative. The Parties
further agree that any defense in any action for specific performance that a
remedy at law would be adequate is waived.
(b) Termination.
(i) This Agreement shall terminate in its entirety, and no Party shall have
any rights or obligations hereunder, upon the earliest of (x) the Company Merger
Effective Time, (y) the termination of both the Merger Agreement and the Asset
Purchase Agreement pursuant to their respective terms, and (z) the time (if any)
the aggregate number of Common Shares and Class B Common Shares, taken
collectively, with respect to which appraisal rights have been exercised and
properly perfected in accordance with Section 262 of the DGCL exceeds 30% of the
aggregate number of Common Shares and Class B Common Shares outstanding
immediately prior to the taking of the vote of the stockholders of the Company
with respect to the Company Merger. The date and time at which this Agreement is
terminated in accordance with this Section 8(b)(i) is referred to herein as the
"Termination Time".
(ii) This Agreement shall terminate with respect to Buyer (but not with
respect to Assets Buyer), and Buyer shall have no further rights or obligations
hereunder, upon the earlier of (x) the Company Merger Effective Time and (y) the
termination of the Merger Agreement pursuant to its terms. The date and time at
which this Agreement is terminated in accordance with this Section 8(b)(ii) is
referred to herein as the "Healthcare Termination Time".
(iii) This Agreement shall terminate with respect to Assets Buyer (but not
with respect to Buyer), and Assets Buyer shall have no further rights or
obligations hereunder, upon the earlier to occur of (x) the consummation of the
Assets Purchase and (y) termination of the Asset Purchase Agreement pursuant to
its terms. The date and time at which this Agreement is terminated in accordance
with this Section 8(b)(iii) is referred to herein as the "Consumer Termination
Time".
(iv) Notwithstanding the foregoing, no termination of this Agreement
(including any termination with regard to the Assets Buyer or the Buyer) shall
relieve any Party for a breach of this Agreement.
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(c) Notices. All notices and other communications required or permitted
hereunder shall be in writing and shall be deemed to have been duly given (i) on
the date of service, if served personally, (ii) upon confirmation of receipt, if
transmitted by telecopy, electronic or digital transmission method, (iii) on the
first business day after it is sent, if sent for next day delivery by recognized
overnight delivery service (e.g., Federal Express), and (iv) on the third day
after it is sent, if sent by first class mail, registered or certified, postage
prepaid and return receipt requested. In each case, notice shall be sent to the
Parties at the following addresses (or at such other address for a Party as
shall be specified by like notice):
If to CPI, addressed to:
CPI Development Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxx
Telecopy: 000-000-0000
With copies to:
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
If to Buyer, addressed to:
MCC Acquisition Holdings Corporation
00 XXX Xxxxxxx
0xx Xxxxx Xxxx
Xxxxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Wild
Telecopy: (000) 000-0000
With a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
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If to Assets Buyer, addressed to:
Armkel, LLC
c/o Kelso & Company
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, XX, Esq.
Telecopy: (000) 000-0000
With copies to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
0 Xxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Xxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxx Xxxxx
Xxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
Notice of change of address shall be effective only when done in accordance with
this Section 8(c).
(d) Interpretation. When a reference is made in this Agreement to Sections,
such reference shall be to a Section of this Agreement unless otherwise
indicated. Headings contained in this Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation of this Agreement.
Whenever the word "include," "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation". This Agreement shall not be construed for or against any Party by
reason of the authorship or alleged authorship of any provision hereof or by
reason of the status of the respective Parties. For all purposes of this
Agreement, words stated in the singular shall be held to include the plural and
vice versa, and words of one gender shall be held to include each other gender,
as the context may require or allow. The terms "hereof," "herein," and
"herewith" and words of similar import shall, unless otherwise stated, be
construed to refer to this Agreement as a whole (and not to any particular
provision of this Agreement). The word "or" shall not be exclusive.
(e) Entire Agreement. This Agreement, the Asset Purchase Agreement and the
Merger Agreement constitute the entire agreement of the Parties, as applicable
with respect to the subject matter hereof and thereof and supersede all prior
agreements or understandings, both written and oral, with respect to such
subject matter. No Party has made any representation or
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warranty or given any covenant to another Party except as set forth in this
Agreement and in the Merger Agreement.
(f) Assignment; Successors and Assigns. Each Party agrees that it will not
assign, transfer, delegate, or otherwise dispose of, whether voluntarily or
involuntarily, any right or obligation under this Agreement without the prior
written consent of the other Party. Any purported assignment, transfer,
delegation or disposition in violation of this Section 8(f) shall be null and
void ab initio. Subject to the foregoing limits on assignment, this Agreement
shall be binding upon and shall inure to the benefit of the Parties and their
respective successors and permitted assigns. This Agreement does not create, and
shall not be construed as creating, any rights or claims enforceable by any
Person not a party to this Agreement.
(g) Governing Law; Jurisdiction. This Agreement shall be construed and
interpreted and the rights granted herein governed in accordance with the laws
of the State of Delaware applicable to contracts executed in and to be performed
within such State, regardless of the laws that might otherwise govern under
applicable principles of conflicts of laws. The Parties hereby irrevocably
submit to the jurisdiction of the courts of the State of Delaware and the
Federal courts of the United States of America located in Delaware solely in
respect of the interpretation and enforcement of the provisions of this
Agreement and of the documents referred to in this Agreement, and in respect of
the transactions contemplated hereby, and hereby waive, and agree not to assert,
as a defense in any action, suit or proceeding for the interpretation or
enforcement hereof or of any such document, that it is not subject thereto or
that such action, suit or proceeding may not be brought or is not maintainable
in said courts or that the venue thereof may not be appropriate or that this
Agreement or any such document may not be enforced in or by such courts, and the
parties hereto irrevocably agree that all claims with respect to such action or
proceeding shall be heard and determined in such a Delaware State or Federal
court. The parties hereby consent to and grant any such court jurisdiction over
the person of such Parties and over the subject matter of such dispute and agree
that mailing of process or other papers in connection with any such action or
proceeding in the manner provided in Section 8(c) or in such other manner as may
be permitted by law shall be valid and sufficient service thereof.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH 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 BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES 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 LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY
MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATES
IN THIS SECTION 8(g).
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(h) Severability. It is the intention of the Parties that the provisions of
this Agreement shall be deemed severable and the invalidity or unenforceability
of any provision shall not affect the validity or enforceability of the other
provisions of this Agreement. It is the intention of the Parties that if any
provision of this Agreement, or the application thereof to any Person or
circumstance, is invalid or unenforceable, (i) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as the may
be valid and enforceable, the intent and purpose of such invalid or
unenforceable provision and (ii) the remainder of this Agreement and the
application of such provision to other Persons or circumstances shall not be
affected by such invalidity or unenforceability, nor shall such invalidity or
unenforceability affect the validity or enforceability of such provision, or the
application thereof, in any other jurisdiction.
(i) Counterparts; Facsimile Signatures. This Agreement may be executed in
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument. This Agreement may be
executed by fax with the same binding effect as original ink signatures.
(j) Amendments, Waivers, Etc. This Agreement may not be amended,
supplemented or otherwise modified, except upon the execution and delivery of a
written agreement by the Parties, provided that if this Agreement terminates
with regard to any Party pursuant to Section 8(b) but remains in effect with
respect to the other Parties hereto, the consent of the terminated Party shall
not be required for any amendment, supplement or modification. By an instrument
in writing, the Parties may waive compliance by another Party with any provision
of this Agreement; provided, however, that any such waiver shall not operate as
a waiver of, or estoppel with respect to, any other or subsequent failure or
with respect to a Party that has not executed and delivered any such waiver. No
failure to exercise and no delay in exercising any right, remedy, or power
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, or power hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, or power provided
herein or by law or at equity.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
duly executed as of the date first above written.
MCC ACQUISITION HOLDINGS CORPORATION
By: /s:/ ______________________________
Name:
Title:
ARMKEL, LLC
By: Church & Xxxxxx Co., Inc.
By: /s:/ Xxxxxx X. Xxxxxx, III
-----------------------------
Name: Xxxxxx X. Xxxxxx, III
Title: Chief Executive Officer
By: Xxxxx & Companies, Inc.,
its general partner
By: /s:/ Xxxxx X. Xxxxxxx, XX
-----------------------------
Name: Xxxxx X. Xxxxxxx, XX
Title: V.P. & General Counsel
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CPI DEVELOPMENT CORPORATION
By: /s:/ ______________________________
Name:
Title:
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