Exhibit 4.12
EXECUTION COPY
VOTING AGREEMENT
THIS AGREEMENT, dated as of November 8, 2006 is made by and among
MARITIME LOGSITICS US HOLDINGS INC., a Delaware corporation (hereinafter, the
"Corporation"), and the holders of the common stock of the Corporation (the "MLI
Shareholders"), certain members and employees of the parent companies of FMI
Holdco. I, LLC ("FMI"), the principal holders of the common stock of the TUG
group of logistic companies ("TUG"), and the holder of the issued shares in the
capital of SeaMaster Logistics (Holding) Limited ("SeaMaster"), all as set forth
on Exhibit A hereto (the "Shareholders").
W I T N E S S E T H:
WHEREAS, the MLI Shareholders are shareholders of an operating
company (ie: the Corporation) in the logistics business, and the Corporation
intends to merge into a subsidiary of a public shell corporation to be
identified ("Parent"), and that upon the consummation of the merger (the
"Merger") the shares of the Corporation will be exchanged for shares of Parent;
WHEREAS, upon the consummation of the Merger, the Corporation
intends to acquire the capital stock of FMI and certain of its parents, the
assets of TUG and certain companies of TUG, and the issued shares in the capital
of SeaMaster (collectively, the "Acquisitions");
WHEREAS, as a condition to the consummation of the Acquisitions, the
Shareholders have agreed to execute this Agreement and their respective
restricted stock agreement;
WHEREAS, pursuant to this Agreement the parties hereto have agreed
to vote their Shares (as defined below) as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
promises hereinafter set forth, the parties hereto agree as follows:
1. VOTING RIGHTS.
This Agreement represents the agreement of the parties hereto with respect
to the voting of the shares of Parent common stock to be issued in the Merger
and Acquisitions and any other capital stock now or hereinafter acquired by them
(subject to adjustment for any stock splits, stock dividends, recapitalizations
or similar events, the "Shares"). The Shareholders shall be entitled to the
number of votes equal to the number of Shares legally and beneficially owned by
such Shareholder, as adjusted from time-to-time and shall have voting rights on
all matters which are subject to the vote of the holders of Parent common stock;
provided, however, the parties hereto hereby agree that they will
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not vote to approve a transaction listed below recommended by the Board of
Directors of Parent, unless approved by the holders of Seventy-Five Percent
(75%) of the Shares then held by the Shareholders, which approval shall not be
unreasonably withheld or delayed:
(a) any increase in the authorized number of shares of the Parent common
stock;
(b) any amendment, modification or change to the Certificate of
Incorporation or By-Laws of Parent.
The Board of Directors of Parent shall initially consist of seven (7)
members. Unless otherwise agreed by the holders of Seventy-Five Percent (75%) of
the Shares then held by the Shareholders (excluding any person in the event of
death or incapacity), the Shareholders shall use commercially reasonable efforts
to cause the Parent (i) to continue to fix the number of the Board of Directors
at seven (7) members, and (ii) to nominate each of: Messrs: Xxxxxx Xxxxxxx,
Xxxxxxx XxXxxx, Xxxxxxxx XxxXxxxx, and Xxxxxx XxXxxxxxx for election as
directors of the Parent at any annual or special stockholder's meeting of the
Parent. The Shareholders further agree to vote all of their Shares to elect each
such person as a director of the Parent. This Agreement, assumes that the Parent
has effectuated its reverse stock split as contemplated by the terms and
conditions of the definitive agreements to consummate the Acquisitions. Unless
and until such split is effectuated, the number of Shares subject to this
Agreement shall be the actual number of shares issued (or deemed issued) to the
Shareholders.
2. QUALIFIED SUCCESSOR
If there is a vacancy on the Board of Directors occurring between annual
meetings as a result of death, incapacity or resignation, or if one or more of
the Directors shall decline to stand for election to the Board or Directors or,
if he is unable or unwilling to so serve, then the Shareholders shall designate
one or more individuals of standing within the business world reasonably
comparable to that of such Director (each a "Qualified Successor") as one or
more successor director in the following manner. The Shareholders shall select
an individual to serve as the Qualified Successor, which individual shall be
independent both of the Parent (except through proposed service as a member of
the Board of Directors or a subsidiary of the Parent) and of the Shareholders.
The selected individual shall be subject to the prior approval of a
super-majority of the Shareholders, which consent shall not unreasonably be
withheld. A Shareholder's approval of a designated director shall be deemed
given if such Shareholder has not responded to a notice by the Chairman of the
Board of Directors of the Parent within 30 days of notice to the Shareholder of
the identity of the selected individual. Upon selection and approval hereunder,
such Qualified Successor shall for all purposes be deemed a Director of the
Parent and shall be subject to this Agreement in the event of his/her death,
incapacity, resignation or decision not to be a Director.
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3. MEDIATION.
The parties hereto agree that if the Shareholders shall not consent to the
authorization of any new series or class or shares, or increase in the
authorized capital of the Parent, or any amendment to the Certificate of
Incorporation or By-Laws of the Parent as provided in Section 1 of this
Agreement, then any Shareholder may, and, if requested by the Board of Directors
of the Parent, all Shareholders shall demand nonbinding mediation on the issue
to resolve whether such consent was reasonably or unreasonably withheld or
delayed. Within fourteen (14) days of the date that such demand was made in
writing upon the Shareholders and the Board of Directors of the Parent, the
Board of Directors of Parent shall select and engage a mediator. In order to
resolve the foregoing disagreement, no later than twenty-one (21) days from the
date such mediator was so engaged, the mediator shall hold a meeting, in New
York City, or such other place agreed upon by the Shareholders and the Board of
Directors. Notwithstanding anything to the contrary in the foregoing, no
mediation shall be required hereunder unless the Corporation shall agree to pay
the mediator's fees and any reasonable expenses incurred by the Shareholders in
connection with such mediation.
4. APPLICABLE LAW.
This Agreement shall be governed by, construed and enforced in accordance
with the laws of the State of Delaware, United States of America without regard
to principles of conflict of laws.
5. TERM.
This Agreement shall have a term of five (5) years commencing on the
effective date of the Merger.
6. NOTIFICATION OF CHANGE IN SHARES OWNED.
Shareholders agree to promptly notify Messrs: Xxxxxx Xxxxxxx and Xxxxxx
XxXxxxxxx, in writing, of any change in the number of Shares legally and
beneficially owned by such Shareholder.
7. COUNTERPARTS.
This Agreement may be executed in any number of counterparts which
together shall constitute one and the same document.
8. PERMITTED TRANSFERS.
Transfers of Shares shall be permitted to any corporation or company under
the control of the Shareholder (holding at least one hundred (100%) percent or
its issued capital stock and/or a trust or family limited partnership for the
benefit of such person or persons.
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9. MISCELLANEOUS.
This Agreement, and the parties obligations hereunder, are undertaking in
the respective party's capacity solely as a shareholder of the Corporation and
not as a director or officer of the Corporation.
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INWITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
_________________________ _________________________
Xxxxxx Xxxxxxx Xxxxxxx XxXxxx
_________________________ _________________________
Xxxxxxxxxxx Xxxxxxxx Xxxxxx X'Xxxxx
_________________________ _________________________
Xxxxxxx XxXxxx Xxxxx Xxxxx
_________________________ _________________________
Xxxxxx Xxx Xxxxxx Xx
Protex Holdings Limited
By:______________________ etc.
Name:
Title:
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
FMI, INC.
By:___________________________
Name: Xxxxxxx XxXxxx
Title: Director
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EXHIBIT A
Xxxxxx Xxxxxxx
Xxxxxxx XxXxxx
Xxxxxxxxxxx Xxxxxxxx
Xxxxxx X'Xxxxx
Xxxxx Xxxxx
Xxxxxxx XxXxxx
Xxxxxx Xxx
Xxxxxx Xx
Protex Holdings Limited
FMI, Inc.
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