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EXHIBIT 99.1
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Voting Agreement"), dated as of
February 12, 1999, is by and between NSC Holdings, Inc., a Delaware corporation
("Holdings"), and Waste Management, Inc., a Delaware corporation ("Waste
Management").
W I T N E S S E T H:
WHEREAS, NSC Corporation, a Delaware corporation ("NSC"),
Waste Management, Holdings and NSC Acquisition, Inc., a Delaware corporation and
a wholly owned subsidiary of Holdings ("Merger Subsidiary") are, concurrently
with the execution of this Agreement, entering into an Agreement and Plan of
Merger (the "Merger Agreement"), which provides, among other things, upon the
terms and subject to the conditions thereof, that Merger Subsidiary will be
merged with and into NSC in accordance with the General Corporation Law of the
State of Delaware (the "Merger"), whereby each share of common stock, par value
$.01 per share, of NSC (the "Common Stock") issued and outstanding immediately
prior to the effective time of the Merger (other than Dissenting Shares (as
defined in the Merger Agreement) and any shares of Common Stock held in the
treasury of NSC) will be converted into the right to receive the Merger
Consideration (as defined in the Merger Agreement);
WHEREAS, Waste Management currently owns, through its
affiliates, approximately 54% of the outstanding shares of Common Stock (the
"Waste Management Shares"); and
WHEREAS, in order to induce Holdings to enter into the Merger
Agreement, Waste Management has agreed to enter into this Voting Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements herein contained, and intending to be legally
bound hereby, Waste Management and Holdings hereby agree as follows.
1. REPRESENTATIONS AND WARRANTIES OF WASTE MANAGEMENT. Waste
Management represents and warrants to Holdings as follows:
(a) Waste Management is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(b) Waste Management has all requisite corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated by this Agreement.
(c) The execution and delivery of this Agreement by Waste
Management and the consummation by Waste Management of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of Waste Management.
(d) This Agreement has been duly executed and delivered by
Waste Management and constitutes a legal, valid and binding obligation of Waste
Management, enforceable against Waste Management in accordance with its terms,
except as enforceability
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may be limited by bankruptcy, insolvency, reorganization, moratorium, or other
similar laws affecting the rights of creditors generally and general principles
of equity.
Section 2. VOTING OF THE WASTE MANAGEMENT SHARES. For so long as this
Agreement is at effect, at any meeting of the stockholders of NSC called to
consider and vote to approve the Merger and the Merger Agreement and the
transactions contemplated thereby, Waste Management shall vote or cause to be
voted all of the Waste Management Shares in favor thereof.
Section 3. TERMINATION. This Agreement shall terminate upon the earlier to
occur of the consummation of the Merger or the termination of the Merger
Agreement without the consummation of the Merger.
Section 4. AMENDMENT; ASSIGNMENT. This Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by the parties hereto. No party may assign any of its
rights or obligations under this Agreement without the prior written consent of
the other party.
Section 5. EXPENSES. Each party shall bear its own expenses and costs in
connection with this Agreement and the transactions contemplated hereby.
Section 6. PARTIES IN INTEREST. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto and its successors and
permitted assigns, and nothing in this Agreement, express or implied, is
intended to or shall confer upon any other person any rights, benefits or
remedies of any nature whatsoever under or by reason of this Agreement.
Section 7. NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by facsimile
or by registered or certified mail (postage prepaid, return receipt requested),
to the other party as follows:
(a) If to Waste Management, to: Waste, Management, Inc.
0000 Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
with a copy to: Seyfarth, Shaw, Xxxxxxxxxxx & Xxxxxxxxx
00 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq.
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(b) If to Holdings, to: NSC Holdings, Inc.
0000 Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxxx X'Xxxxxxxx
with a copy to: Xxxxxx & Xxxxxx L.L.P.
000 Xxxxxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxx X. Xxxxxx, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the other in writing in the manner set forth above.
Section 8. GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the law of the State of Delaware, without
regard to the principles of conflicts of law thereof.
Section 9. SEVERABILITY. The provisions of this Agreement
shall be deemed severable and the invalidity or unenforceability of any
provision shall not affect the validity and enforceability of the other
provisions hereof. If any provision of this Agreement, or the application
thereof to any person or entity or any circumstance, is invalid or
unenforceable, (a) a suitable and equitable provision shall be substituted
therefor in order to carry out, so far as may be valid and enforceable, the
intent and purpose of such invalid and unenforceable provision and (b) the
remainder of this Agreement and the application of such provision to other
persons, entities or circumstances shall not be affected by such invalidity or
unenforceability, or shall such invalidity or unenforceability affect the
validity or enforceability of such provision, or the application thereof, in any
other jurisdiction.
Section 10. ENTIRE AGREEMENT. This Agreement constitutes the
entire agreement among the parties hereto with respect to the subject matter
hereof and supersedes all other prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof.
Section 11. DESCRIPTIVE HEADINGS. The descriptive headings
herein are inserted for convenience of reference only and are not intended to be
part of or to affect the meaning or interpretation of this Agreement.
Section 12. COUNTERPARTS. This Agreement may be executed in
two or more counterparts, each of which shall be deemed to be an original, but
all of which shall constitute one and the same agreement.
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IN WITNESS WHEREOF, each of the parties has caused this
Agreement to be executed on its behalf by its representatives thereunto duly
authorized, all as of the day and year first above written.
WASTE MANAGEMENT, INC.
By: /s/ XXXXXXX X. XXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President and Secretary
NSC HOLDINGS, INC.
By: /s/ XXXXXX X'XXXXXXXX
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Name: Xxxxxx X'Xxxxxxxx
Title: Chairman
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