FORM OF
POST-MERGER VOTING AGREEMENT
VOTING AGREEMENT dated as of April __, 1999 (the "Agreement") by and
among MS Acquisition Limited, a Texas limited partnership, (the "Nominating
Stockholder") Xxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxx, Xxxx X. Xxxxxx, Xxxxxxx
X. Xxxx (together with the Nominating Stockholder, the "Richmont
Stockholders"), Monroe & Company, LLC, a Delaware limited liability company
and JLM Management Company, LLC, a ______ limited liability company
(together with Monroe & Company, LLC, "Monroe"). The Richmont Stockholders
and Monroe collectively shall be referred to herein as the "Stockholders."
WHEREAS, it is contemplated that Richmont Marketing Specialists Inc.,
a Delaware corporation ("Richmont"), will merge with and into Xxxxxxx
American Corporation, a Delaware corporation ("Xxxxxxx") pursuant to an
Agreement and Plan of Merger dated as of the date hereof (the "Merger
Agreement," and such merger, the "Merger");
WHEREAS, the Richmont Stockholders own of record all of the issued
and outstanding shares of common stock, par value $.01 per share, of
Richmont, which in connection with the Merger will be converted into an
aggregate of up to 6,705,551 shares of common stock, par value $.01 per
share, of Xxxxxxx ("Xxxxxxx Common Stock");
WHEREAS, Monroe has the right to vote an aggregate of _______ shares
of Xxxxxxx Common Stock;
WHEREAS, the execution and delivery of this Agreement is a condition
to the consummation of the Merger.
NOW, THEREFORE, the parties hereto agree as follows:
1. Voting Agreement. Following the consummation of the Merger, at any
time that nominees for the election to the Board of Directors of Xxxxxxx
are submitted to the stockholders of Xxxxxxx, or a proposal to remove any
incumbent member of the Board of Directors of Xxxxxxx is submitted to such
stockholders, the parties hereto agree to vote, or cause to be voted, all
Voting Securities (defined below) then held by such party, whether
beneficially or of record, or any Voting Securities over which such party
exercises voting control, in favor of the nominees designated in writing by
the Nominating Stockholders. For the purpose of this agreement, "Voting
Securities" shall mean any and all shares of capital stock of Xxxxxxx, of
any class or series, which shall have the right at any time to vote in the
election of Xxxxxxx'x directors, including without limitation shares of
Xxxxxxx Common Stock.
2. Designation of Nominees. The Nominating Stockholder hereby
designates the following individuals as nominees for election to the Board
of Directors of Xxxxxxx: Xxxx X. Xxxxxx, Xxxx X. Xxxxxx, Xxxxxxx X. Xxxx,
Xxxxxx X. Xxxxxxxx and -------------------. In the event that any of the
foregoing at any time are unable to serve out their terms, resign from the
Board of Directors of Xxxxxxx or decline to be nominated for election or
reelection, then the Nominating Stockholders shall have the right to
designate in writing a replacement nominee; provided, however, that such
replacement nominee shall be reasonably satisfactory to Monroe.
3. Representations and Warranties of the Stockholders. As of the date
hereof, each Stockholder represents and warrants to the other Stockholders
as follows:
(a) Ownership of Securities. The Stockholder is the record and
beneficial owner of, or exercises voting control of, the number of shares
of Voting Securities of Xxxxxxx set forth on the signature page to this
Agreement (the "Existing Securities"). The Holder has sole voting power and
sole power to issue instructions with respect to the voting of the Existing
Securities, sole power of disposition and the sole power of exercise or
conversion, in each case with respect to all of the Existing Securities. As
of the date hereof, the Stockholder will have sole voting power and sole
power to issue instructions with respect to the voting of all of the
Existing Securities, sole power of disposition and the sole power of
exercise or conversion, in each case with respect to all of the Existing
Securities.
(b) Power; Binding AgreementThe Stockholder has full power and
authority to enter into and perform all of the Stockholder's obligations
under this Agreement. If Stockholder is an entity, the execution by
Stockholder of this Agreement and the performance of its obligations
hereunder have been duly authorized by all necessary corporate or
partnership action on the part of Stockholder and no other action on the
part of Stockholder is required in connection therewith. This Agreement has
been duly and validly executed and delivered by the Stockholder and
constitutes a valid and binding agreement of the Stockholder, enforceable
against the Stockholder in accordance with its terms.
(c) No Conflicts. No filing with, and no permit, authorization,
consent or approval of, any state or federal public body or authority is
necessary for the execution of this Agreement by the Stockholder and the
consummation by the Stockholder of the transactions contemplated hereby,
other than filings which may be required pursuant to the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder, and neither the execution and delivery of this Agreement by the
Stockholder nor the consummation by the Stockholder of the transactions
contemplated hereby nor compliance by the Stockholder with any of the
provisions hereof shall conflict with or result in any breach of any
applicable organizational documents of Xxxxxxx applicable to the
Stockholder or, if applicable, any organizational documents of the
Stockholder (including without limitation any charter documents or
partnership agreement), result in a violation or breach of, or constitute
(with or without notice or lapse of time or both) a default (or give rise
to any third-party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, license, contract,
commitment, arrangement, understanding, agreement or other instrument or
obligation of any kind to which the Stockholder is a party or by which the
Stockholder's properties or assets may be bound or violate any order, writ,
injunction, decree, judgment, order, statute, rule or regulation applicable
to the Stockholder or any of the Stockholder's properties or assets.
4. Assignment; Benefits. This Agreement may not be assigned by any
party hereto without the prior written consent of each of the other
parties. This Agreement shall be binding upon, and shall inure to the
benefit of, each of the signatories hereto and their respective successors
and permitted assigns.
5. Notices. Any notice required to be given hereunder shall be in
writing and shall be sent by facsimile transmission (confirmed by any of
the methods that follow), courier service (with proof of service), hand
delivery or certified or registered mail (return receipt requested and
first-class postage prepaid) to the address of such party set forth on the
signature pages hereto or to such other address as any party shall specify
by written notice so given, and such notice shall be deemed to have been
delivered as of the date so delivered.
6. Specific Performance. The parties hereto agree that irreparable
harm would occur in the event that any of the provisions of this Agreement
were not performed in accordance with its specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any court of the
United States or any state thereof having jurisdiction, this being in
addition to any other remedy to which they are entitled at law or in
equity.
7. Amendment. This Agreement may not be amended or modified, except
by an instrument in writing signed by or on behalf of each of the parties
hereto. This Agreement may not be waived by any party hereto, except by an
instrument in writing signed by or on behalf of the party granting such
waiver.
8. Governing Law. This Agreement shall be governed by, construed and
enforced in accordance with the laws of the State of Delaware, without
regard to its rules regarding conflict of laws.
9. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one and the same agreement.
10. Termination. This Agreement shall commence on the date hereof and
shall terminate upon the earliest to occur of: (i) the date on which the
Nominating Stockholder and Messrs. Xxxxxxxx, Xxxxxx and Xxxxxx cease to own
in the aggregate at least 35% of the total outstanding shares of Voting
Securities of Xxxxxxx, or (ii) the date on which the Stockholders cease to
own, or have the right to exercise voting control over, shares of Voting
Securities of Xxxxxxx representing more than 50% of the total voting power
of all outstanding Voting Securities of Xxxxxxx.
[VOTING AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, this Agreement has been executed by or on behalf
of each of the parties hereto, all as of the date first above written
above.
MS ACQUISITION LIMITED
By:_______________________________
Name:
Title:
Existing Securities:
-------------------
Class:_________________________
Number of Shares:______________
Address:
-------
_______________________________
_______________________________
_______________________________
[VOTING AGREEMENT SIGNATURE PAGE]
_______________________________
Xxxxxx X. Xxxxxxxx
Existing Securities:
-------------------
Class:_________________________
Number of Shares:______________
Address:
-------
_______________________________
_______________________________
_______________________________
_______________________________
Xxxxx X. Xxxxxx
Existing Securities:
-------------------
Class:_________________________
Number of Shares:______________
Address:
-------
_______________________________
_______________________________
_______________________________
_______________________________
Xxxx X. Xxxxxx
Existing Securities:
-------------------
Class:________________________
Number of Shares:_____________
Address:
-------
_______________________________
_______________________________
_______________________________
[VOTING AGREEMENT SIGNATURE PAGE]
_______________________________
Xxxxxxx X. Xxxx
Existing Securities:
-------------------
Class:_________________________
Number of Shares:______________
Address:
-------
_______________________________
_______________________________
_______________________________
[VOTING AGREEMENT SIGNATURE PAGE]
MONROE & COMPANY, LLC
By:____________________________
Name:
Title:
Existing Securities:
-------------------
Class:_________________________
Number of Shares:______________
Address:
-------
_______________________________
_______________________________
_______________________________
JLM MANAGEMENT COMPANY, LLC
By:____________________________
Name:
Title:
Existing Securities:
-------------------
Class:_________________________
Number of Shares:______________
Address:
-------
_______________________________
_______________________________
_______________________________
