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VOTING AGREEMENT
This Voting Agreement (the "Agreement") is made and entered
into as of September 17, 1999, by and between Targetti Xxxxxx S.p.A., an
Italian corporation ("Parent"), Xxxxxxxx X. Xxxxx ("Xxxxx") and Xxxxxxx Xxxxx
("Spouse," and together with Xxxxx, the "Shareholders"), as joint tenants.
RECITALS:
WHEREAS, the Shareholders are the joint owners of 372,000
shares of common stock, par value $0.001 per share (the "Common Stock") of the
Company; and
WHEREAS, in order to induce Parent and certain of its
affiliates to enter into an agreement and plan of merger (the "Merger
Agreement") with Tivoli Industries, Inc., a California corporation (the
"Company"), the Shareholders have agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual covenants and agreements contained herein, the parties hereto agree
as follows:
ARTICLE I
DEFINITIONS; PROVISIONS CONCERNING SHARES
1.1 Definitions. Capitalized terms used and not defined
herein have the respective meanings ascribed to them in the Merger Agreement.
For purposes of this Agreement, "Beneficially Own" or "Beneficial Ownership"
with respect to any securities shall mean having "beneficial ownership" of such
securities (as determined pursuant to Rule 13d-3 under the Securities Exchange
Act of 1934, as amended (the "Exchange Act")), including pursuant to any
agreement, arrangement or understanding, whether or not in writing.
1.2 Provisions Concerning the Shares.
(a) The Shareholders hereby agree that during
the period commencing on the date hereof and continuing until
the first to occur of the Effective Time or the date on which
the Merger Agreement is terminated in accordance with its
terms, at any meeting of the holders of the Common Stock,
however called, or in connection with any written consent of
the holders of Common Stock, the Shareholders shall vote (or
cause to be voted) all shares of Common Stock held of record
or Beneficially Owned by the Shareholders, whether heretofore
owned or hereafter acquired (collectively, the "Shares"), (i)
in favor of the Merger, the adoption of the Merger Agreement
by the Company and the approval of the terms thereof, and each
of the other transactions and actions contemplated by the
Merger Agreement (and the matters related to the consummation
thereof) and any actions required in furtherance thereof; and
(ii) against any action or agreement that would result in a
breach in any respect of any covenant, representation or
warranty or any other obligation or agreement of the Company
under the Merger Agreement or that would result in any of the
conditions to the obligations of the Company under the Merger
Agreement not being fulfilled. Notwithstanding anything
contained herein to the contrary, the Shareholders shall not
be required by this Agreement to exercise options for Shares
if the exercise price per Share pursuant to such option would
exceed the fair market value of a Share.
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(b) In the event of a stock dividend or
distribution, or any change in Common Stock by reason of any
stock dividend, split-up, recapitalization, combination,
exchange of shares or the like, the term "Shares" shall be
deemed to refer to and include the Shares as well as all such
stock dividends and distributions and any shares into which or
for which any or all of the Shares may be changed or
exchanged.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
The Shareholders hereby represent and warrant jointly and severally to
Parent as follows:
2.1 Authority; Non-Contravention. Each of the
Shareholders has the legal right and power to execute, deliver and perform this
Agreement, and the execution, delivery and performance by each of the
Shareholders of this Agreement and any other agreements, certificates and
instruments to be executed by each of the Shareholders in connection with or
pursuant to this Agreement and the consummation of the transactions contemplated
hereby and thereby (i) require no action by or in respect of, consent, approval
or authorization of, or filing with, any governmental body, agency, official or
authority or any other person or entity, and (ii) do not and will not violate or
constitute a default under any provision of applicable law or regulation or of
any agreement, judgment, injunction, order, decree, or other instrument binding
on either of the Shareholders or result in the imposition of any lien on any
asset of either of the Shareholders.
2.2 Binding Effect. This Agreement has been duly executed
and delivered by each of the Shareholders and is a valid and binding agreement
of each of the Shareholders, enforceable against each of the Shareholders in
accordance with its terms.
2.3 Shares. The joint Shareholders are the joint record
owners and the joint Beneficial Owners of the Shares. Except as set forth on the
signature pages hereto, the Shareholders do not own any options to purchase or
rights to subscribe for or otherwise acquire any securities of the Company. The
Shareholders have joint voting power and joint power to issue instructions with
respect to the Shares, the joint power of disposition, the joint power of
conversion, the joint power to demand appraisal rights and the joint power to
agree to all of the matters set forth in this Agreement, in each case with
respect to all of the Shares beneficially owned by the Shareholders with no
limitations, qualifications or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement.
2.4 Liens. Except as previously disclosed in writing by
the Shareholders to Parent, the Shares are owned by the Shareholders free and
clear any Liens. As used herein "Lien" means any mortgage, pledge, assessment,
security interest, lease, lien, adverse claim, levy, charge or other encumbrance
of any kind.
2.5 Finder's Fees. No investment banker, broker or finder
is entitled to a commission or fee from Parent or the Company in respect of this
Agreement based upon any arrangement or agreement made by or on behalf of either
of the Shareholders.
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ARTICLE III
REPRESENTATION AND WARRANTY OF PARENT
Parent represents and warrants to the Shareholder:
3.1 Corporate Power and Authority. Parent has all
requisite corporate power and authority to enter into this Agreement and to
perform its obligations hereunder. The execution, delivery and performance by
Parent of this Agreement and the consummation by Parent of the transactions
contemplated hereby have been duly authorized. This Agreement has been duly
executed and delivered by Parent and is a valid and binding agreement of Parent,
enforceable against it in accordance with its terms.
ARTICLE IV
COVENANTS AND AGREEMENTS
The Shareholders hereby jointly and severally covenant and agree that:
4.1 No Proxies for or Encumbrance On Shares. Beginning on
the date hereof and continuing until this Agreement terminates pursuant to
Section 5.1, the Shareholders shall not, without the prior written consent of
Parent, directly or indirectly, (i) grant any proxies or enter into any voting
trust or other agreement or arrangement with respect to the voting of any Shares
or (ii) acquire, sell, assign, transfer, encumber or otherwise dispose of, or
enter into any contract, option or other arrangement or understanding with
respect to the direct or indirect acquisition or sale, assignment, transfer,
encumbrance or other disposition of, any Shares during the term of this
Agreement. The Shareholders shall not seek or solicit any such acquisition or
sale, assignment, transfer, encumbrance or other disposition or any such
contract, option or other arrangement or assignment or understanding and agrees
to notify Parent promptly and to provide all details requested by Parent if the
Shareholders shall be approached or solicited, directly or indirectly, by any
person with respect to any of the foregoing.
4.2 No Shopping. The Shareholders shall not directly or
indirectly (i) solicit, initiate or encourage (or authorize any person to
solicit, initiate or encourage) any inquiry, proposal or offer from any person
to acquire the business, property or capital stock of the Company or any direct
or indirect subsidiary thereof, or any acquisition of a substantial equity
interest in, or a substantial amount of the assets of, the Company or any direct
or indirect subsidiary thereof, whether by merger, purchase of assets, tender
offer or other transaction or (ii) subject to the fiduciary duty under
applicable law of Xxxxx as an officer or director of the Company, participate in
any discussion or negotiations regarding, or furnish to any other person any
information with respect to, or otherwise cooperate in any way with, or
participate in, facilitate or encourage any effort or attempt by any other
person to do or seek any of the foregoing. The Shareholders shall promptly
advise Parent of the terms of any communications it may receive relating to any
of the foregoing.
4.3 Conduct of Shareholder. The Shareholders will not (i)
take, agree or commit to take any action that would make any representation and
warranty of the Shareholders hereunder inaccurate in any respect as of any time
prior to the termination of this Agreement or (ii) omit, or agree or commit to
omit, to take any action necessary to prevent any such representation or
warranty from being inaccurate in any respect at any such time.
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4.4 Employment Agreement. Upon the closing of the Merger
(as defined in the Merger Agreement), Xxxxx shall execute and deliver to the
Company an employment agreement, substantially in the form of Exhibit A hereto
(the "Employment Agreement").
4.5 Update of SEC Filings. The Shareholders will update
all filings made by them with the Securities and Exchange Commission (the "SEC")
and file all documents required to be filed with the SEC in compliance with the
Exchange Act as are necessary to consummate the transactions contemplated by
this Agreement.
4.6 Disclosure. Without the prior written consent of the
other, neither Parent nor the Shareholders will, and Parent and the Shareholders
shall cause their respective representatives not to, make any release to the
press or other public disclosure, or make any statement to any employee (other
than those officers of the Company whose involvement in the merger is required
in order to consummate the transaction), competitor, customer, client or
supplier of the Company or any of its subsidiaries to any other person with
respect to the existence or contents of this Agreement, except for such public
disclosure as may be necessary, following consultation with legal counsel, for
the party proposing to make the disclosure not to be in violation of or default
under any applicable law, regulation or governmental order. If either party
proposes to make such disclosure, that party will discuss with the other party
its rationale for such disclosure and provide such party with the text of this
proposed disclosure, as far in advance of its disclosure as is practicable, and
will in good faith consult with and consider the suggestions of the other party
concerning the nature and scope of the information it proposes to disclose.
Notwithstanding the foregoing, the Shareholders hereby permit their identity and
ownership of the Shares and the nature of the commitments, arrangements and
understandings under this Agreement to be disclosed by the Company in its Proxy
Statement (and all related documents) relating to the Merger.
ARTICLE V
MISCELLANEOUS
5.1 Termination. Except as otherwise provided in Section
1.2 of this Agreement, this Agreement shall terminate (a) in the event the
Merger Agreement is terminated in accordance with its terms upon such
termination, and (b) in the event the Merger is consummated, upon the Effective
Time; provided, however, that no such termination shall relieve any party of
liability for a breach hereof prior to termination.
5.2 Specific Performance. The parties hereto agree that
the Parent may be irreparably damaged if for any reason the Shareholders failed
to perform any of their other obligations under this Agreement, and that the
Parent would not have an adequate remedy at law for money damages in such event.
Accordingly, the Parent shall be entitled to specific performance and injunctive
and other equitable relief to enforce the performance of this Agreement by the
Shareholders. This provision is without prejudice to any other rights that the
Parent may have against Shareholders for any failure to perform its obligations
under this Agreement.
5.3 Notices. All notices that are required or may be
given pursuant to this Agreement must be in writing and delivered personally, by
a recognized courier service, by a recognized overnight delivery service, by
telecopy or by registered or certified mail, postage prepaid, to the parties at
the following addresses (or to the attention of such other person or such other
address as any Party may provide to the other parties by notice in accordance
with this Section 5.3):
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if to Parent: with copies to:
Targetti Xxxxxx S.p.A. Xxxxxx & Xxxxx LLP
Xxx Xxxxxxx, 000 000 Xxxx Xxxxxx
00000 Xxxxxxx, Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Targetti Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
G. Xxxxx Xxxxxxx, Esq.
if to the Shareholder:
To the address listed on the signature page hereto.
Any such notice or other communication will be deemed to have been
given upon actual receipt.
5.4 Further Assurances. Each party agrees to execute any
and all documents and to perform such other acts as may be necessary or
expedient to further the purposes of this Agreement and the transactions
contemplated hereby.
5.5 Counterparts. This Agreement may be executed in one
or more counterparts for the convenience of the parties hereto, all of which
together will constitute one and the same instrument.
5.6 Assignment. Neither this Agreement nor any of the
rights, interests or obligations hereunder may be assigned or delegated by the
Shareholders or Parent without the prior written consent of the other party and
any purported assignment or delegation in violation hereof shall be null and
void; except, that Parent may assign all or any part of its rights, interests
and obligations hereunder to any affiliate (as such term is defined in Rule
144(a)(1) under the Securities Act of 1933, as amended); provided, that no such
assignment by Parent shall relieve Parent of its obligations hereunder. This
Agreement is not intended to confer any rights or benefits on any Person other
than the parties hereto.
5.7 Consent to Jurisdiction and Service of Process. Each
party hereto hereby irrevocably submits to the nonexclusive jurisdiction of the
United States District Court for the Central District of California in any such
action, suit or proceeding, and agrees that any such action, suit or proceeding
shall be brought only in such court (and waives any objection based on forum non
conveniens or any other objection to venue therein), provided, however, that
such consent to jurisdiction is solely for the purpose referred to in this
Section 5.7 and shall not be deemed to be a general submission to the
jurisdiction of said courts or in the State of California other than for such
purpose. Nothing herein shall affect the right of any party to serve process in
any other manner permitted by law or to commence legal proceedings or otherwise
proceed against the other in any other jurisdiction. The parties hereby
irrevocably waive all right to a trial by jury in any action, proceeding or
counterclaim (whether based on contract, tort or otherwise) arising out of or
relating to this Agreement in the negotiation, administration, performance or
enforcement thereof.
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5.8 Entire Agreement. This Agreement and the related
documents contained as Exhibits and Schedules hereto or expressly contemplated
hereby contain the entire understanding of the parties relating to the subject
matter hereof and supersede all prior written or oral and all contemporaneous
oral agreements and understandings relating to the subject matter hereof. This
Agreement may not be modified or amended except in writing signed by each party
hereto. The Exhibits and Schedules to this Agreement are hereby incorporated by
reference into and made a part of this Agreement for all purposes.
5.9 Governing Law. This Agreement will be governed by and
construed and interpreted in accordance with the substantive laws of the State
of California, without giving effect to any conflicts of law rule or principle
that might require the application of the laws of another jurisdiction.
5.10 Neutral Construction. The parties to this Agreement
agree that this Agreement was negotiated fairly between them at arm's length and
that the final terms of this Agreement are the product of the parties'
negotiations. Each party represents and warrants that it has sought and received
legal counsel of its own choosing with regard to the contents of this Agreement
and the rights and obligations affected hereby. The parties agree that this
Agreement shall be deemed to have been jointly and equally drafted by them, and
that the provisions of this Agreement therefore should not be construed against
a party or parties on the grounds that the party or parties drafted or was more
responsible for drafting the provision(s).
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
TARGETTI XXXXXX S.P.A.
By /s/ Xxxxxxx Targetti
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Name: Xxxxxxx Targetti
Title: Managing Director
SHAREHOLDERS:
/s/ Xxxxxxxx X. Xxxxx
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Xxxxxxxx X. Xxxxx
/s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
Address for Notices:
00 Xxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
