VOTING AGREEMENT
VOTING AGREEMENT, dated as of February 9, 2007 (this "Agreement"), by and
among the stockholders listed on the signature page(s) hereto (collectively, the
"Stockholders" and each individually, a "Stockholder"), and Xxxx Corporation, a
Delaware corporation (the "Company"). Capitalized terms used and not otherwise
defined herein shall have the respective meanings ascribed to them in the Merger
Agreement (as defined below).
RECITALS
WHEREAS, as of the date hereof, the Stockholders beneficially own an
aggregate of 11,994,944 shares of common stock of the Company, as set forth on
Schedule I hereto (such shares, or any other voting or equity securities of the
Company hereafter acquired by any Stockholder prior to the termination of this
Agreement, being referred to herein collectively as the "Shares");
WHEREAS, concurrently with the execution of this Agreement, AREP Car
Holdings Corp., a Delaware corporation (the "Parent"), AREP Car Acquisition
Corp., a Delaware corporation and wholly-owned subsidiary of Parent ("Merger
Sub"), and the Company are entering into an Agreement and Plan of Merger, dated
as of the date hereof (the "Merger Agreement"), pursuant to which, upon the
terms and subject to the conditions thereof, Merger Sub will be merged with and
into the Company, and the Company will be the surviving corporation (the
"Merger"); and
WHEREAS, as a condition to the willingness of the Company to enter into the
Merger Agreement, the Company has required that the Stockholders agree, and in
order to induce the Company to enter into the Merger Agreement the Stockholders
are willing, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, and intending to be legally bound hereby, the
parties hereby agree, severally and not jointly, as follows:
Section 1. Voting of Shares.
Each Stockholder covenants and agrees that until the termination of this
Agreement in accordance with the terms hereof, at the Company's special meeting
of stockholders or any other meeting of the stockholders of the Company, however
called, and in any action by written consent of the stockholders of the Company,
such Stockholder will vote, or cause to be voted, all of such Stockholder's
respective Shares owned at the record date for such meeting or consent (i) in
favor of the adoption of the Merger Agreement and the approval of the Merger
contemplated by the Merger Agreement and any actions required in furtherance
thereof, as the Merger Agreement may be modified or amended from time to time
(provided, however, that the merger consideration is no less than $36 per share
in cash net to the Company's stockholders) and (ii) in favor of any Alternative
Acquisition Agreement (provided, however, that the merger consideration is no
less than $36 per share in cash net to the Company's stockholders) including, in
each case, any other matter on the ballot related to the Merger Agreement or an
Alternative Acquisition Agreement. This Agreement does not relate to any non
voting securities of the Company, or to derivatives, swaps or other arrangements
with respect to shares of capital stock of the Company where the Stockholder has
no right to vote or direct the vote of such shares.
Section 2. Transfer of Shares.
(a) Each Stockholder covenants and agrees that such Stockholder will not
directly or indirectly (i) sell, assign, transfer, tender, pledge, encumber or
otherwise dispose of any of the Shares, (ii) deposit any of the Shares into a
voting trust or enter into a voting agreement or arrangement with respect to the
Shares or grant any proxy or power of attorney with respect thereto that is
inconsistent with this Agreement or (iii) enter into any contract, option or
other arrangement or undertaking with respect to the direct or indirect sale,
assignment, transfer, tender, pledge, encumbrance, or other disposition of any
Shares; provided, however, that notwithstanding the foregoing a Stockholder may
transfer Shares or agree to transfer Shares to any Affiliate of the Stockholder,
including , but not limited to Parent or Merger Sub, provided that in each such
case the transferee agrees in writing to be bound by this Agreement. Nothing
herein shall restrict or otherwise limit the encumbrance or pledge of Shares
pursuant to margin and/or other pledge arrangements, provided that in the event
of any new margin or pledge arrangement, the voting rights of such Shares shall
be subject to Section 1 hereof
(b) Each Stockholder agrees to extend the Effectiveness Deadline (as such
term is defined in the Stock Purchase Agreement) to a day sixty (60) days after
any termination of the Merger Agreement.
Section 3. Waiver of Appraisal Rights.
Each Stockholder hereby waives, to the full extent of the law, and agrees
not to assert any appraisal rights pursuant to Section 262 of the DGCL or
otherwise in connection with the Merger with respect to any and all Shares held
by the undersigned of record or beneficially owned.
Section 4. Representations and Warranties of the Stockholders.
Each Stockholder on his or its own behalf hereby severally represents and
warrants to the Company with respect to such Stockholder and such Stockholder's
ownership of the Shares as follows:
(a) Number of Shares. Each Stockholder represents, warrants and agrees that
Schedule I annexed hereto sets forth, adjacent to the name of such stockholder,
the number of Shares of which the Stockholder is the beneficial owner (it being
understood and agreed that the beneficial ownership shall not include any rights
with respect to derivatives, swaps or other arrangements). Each Stockholder
represents, warrants and agrees that, as of the date hereof, those Shares on
Schedule I constitute all of the Shares of which such Stockholder has the power
to vote or direct the vote. High River Limited Partnership and Koala Holding
Limited Partnership represent that the Shares subject to this Voting Agreement
are all of the Shares in which Xxxx X. Icahn or his affiliates have beneficial
ownership or voting rights.
(b) Power, Binding Agreement. The Stockholder is a limited partnership duly
formed, under the laws of its state of formation and has full limited
partnership power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by the Stockholder and the consummation of the transactions
contemplated hereby have been duly and validly authorized by the appropriate
governing body of the Stockholder, and, no other limited partnership proceedings
on the part of the Stockholder are necessary to authorize the execution,
delivery and performance of this Agreement by the Stockholder and the
consummation of the transactions contemplated hereby. The Stockholder has duly
and validly executed this Agreement and this Agreement constitutes a legal,
valid and binding obligation of the Stockholder enforceable against the
Stockholder in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization or other similar
laws affecting creditors' rights generally and by general equitable principles
(regardless of whether enforceability is considered in a proceeding in equity or
at law).
Section 5. Representations and Warranties of the Company.
Company represents and warrants to Stockholders as follows:
(a) Power, Binding Agreement. Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Delaware
and has full corporate power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement and the Merger Agreement by the Company and the
consummation of the transactions contemplated hereby and thereby have been duly
and validly authorized by the Board of Directors of the Company, and, no other
corporate proceedings on the part of the Company are necessary to authorize the
execution, delivery and performance of this Agreement and the Merger Agreement
by the Company and the consummation of the transactions contemplated hereby and
thereby. The Company has duly and validly executed this Agreement and this
Agreement constitutes a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws affecting creditors' rights generally and
by general equitable principles (regardless of whether enforceability is
considered in a proceeding in equity or at law).
Section 6. Termination.
Notwithstanding any other provision herein, the obligations of the
Stockholders set forth in this Agreement shall not be effective or binding until
after such time as the Merger Agreement is executed and delivered by Parent,
Merger Sub and the Company. This Agreement shall terminate immediately upon the
earlier of (i) termination of the Merger Agreement in accordance with its terms
unless such termination is pursuant to Section 7.1(g) or 7.1(i) of the Merger
Agreement, in which event this Agreement will terminate upon the termination of
any obligation under the Alternative Acquisition Agreement for which the
Stockholders are required to vote pursuant to the provisions set forth in
Section 1 hereof, and (ii) the Effective Time or in the event such an
Alternative Acquisition Agreement is entered into, the consummation of the
transaction contemplated by such Alternative Acquisition Agreement, or if
earlier, the termination of such Alternative Acquisition Agreement. Upon such
termination, this Agreement shall immediately become void, there shall be no
liability hereunder on the part of the Stockholders and all rights and
obligations of the parties to this Agreement shall cease.
Section 7. Specific Performance.
The parties hereto agree that irreparable damage would occur in the event
any provision of this Agreement was not performed in accordance with the terms
hereof and that the parties shall be entitled to specific performance of the
terms hereof, in addition to any other remedy at law or in equity.
Section 8. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings, both written and oral,
between the parties with respect thereto. This Agreement may not be amended,
modified or rescinded except by an instrument in writing signed by each of the
parties hereto.
(b) Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible to the fullest extent
permitted by applicable law in a mutually acceptable manner in order that the
terms of this Agreement remain as originally contemplated to the fullest extent
possible.
(c) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to the
principles of conflicts of law thereof.
(d) Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which together shall constitute one
and the same instrument.
(e) Notices. All notices and other communications hereunder shall be in
writing and shall be deemed duly delivered (i) three business days after being
sent by hand delivery in writing, by facsimile or electronic transmission, by
registered or certified mail, return receipt requested, postage prepaid, or (ii)
one business day after being sent for next business day delivery, fees prepaid,
via a reputable nationwide overnight courier service, in each case to the
intended recipient as set forth below:
(i) if to a Stockholder to:
c/o Icahn Associates Corp.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Facsimile:000-000-0000
Email: xxxxxxxx@xxxxx.xxx
(ii) if to Company to:
Xxxx Corporation
00000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
E-Mail: xxxxxxxxxx@xxxx.xxx
(ii) with a copy (which shall not constitute notice) to:
Winston & Xxxxxx LLP
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
Email: xxxxx@xxxxxxx.xxx
(f) No Third Party Beneficiaries. This Agreement is not intended, and shall
not be deemed, to confer any rights or remedies upon any person other than the
parties hereto and their respective successors and permitted assigns.
(g) Assignment. Except as provided in Section 2 hereof, neither this
Agreement nor any of the rights, interests or obligations under this Agreement
may be assigned or delegated, in whole or in part, by operation of law or
otherwise by any of the parties hereto without the prior written consent of the
other parties and any such assignment without such prior written consent shall
be null and void. Subject to the preceding sentence, this Agreement shall be
binding upon, inure to the benefit of, and be enforceable by, the parties hereto
and their respective successors and permitted assigns.
(h) Interpretation. When reference is made in this Agreement to a Section,
such reference shall be to a Section of this Agreement, unless otherwise
indicated. The headings contained in this Agreement are for convenience of
reference only and shall not affect in any way the meaning or interpretation of
this Agreement. The language used in this Agreement shall be deemed to be the
language chosen by the parties hereto to express their mutual intent, and no
rule of strict construction shall be applied against any party. Whenever the
context may require, any pronouns used in this Agreement shall include the
corresponding masculine, feminine or neuter forms, and the singular form of
nouns and pronouns shall include the plural, and vice versa. Any reference to
any federal, state, local or foreign statute or law shall be deemed also to
refer to all rules and regulations promulgated thereunder, unless the context
requires otherwise. Whenever the words "include," "includes" or "including" are
used in this Agreement, they shall be deemed to be followed by the words
"without limitation." No summary of this Agreement prepared by the parties shall
affect in any way the meaning or interpretation of this Agreement.
(i) Submission to Jurisdiction. Each of the parties to this Agreement (i)
consents to submit itself to the personal jurisdiction of any state or federal
court sitting in the State of Delaware in any action or proceeding arising out
of or relating to this Agreement or any of the transactions contemplated by this
Agreement, (ii) agrees that all claims in respect of such action or proceeding
may be heard and determined in any such court, (iii) agrees that it will not
attempt to deny or defeat such personal jurisdiction by motion or other request
for leave from any such court and (iv) agrees not to bring any action or
proceeding arising out of or relating to this Agreement or any of the
transactions contemplated by this Agreement in any other court. Each of the
parties hereto waives any defense of inconvenient forum to the maintenance of
any action or proceeding so brought and waives any bond, surety or other
security that might be required of any other party with respect thereto. Any
party hereto may make service on another party by sending or delivering a copy
of the process to the party to be served at the address and in the manner
provided for the giving of notices in Section 9(e). Nothing in this Section,
however, shall affect the right of any party to serve legal process in any other
manner permitted by law.
(j) WAIVER OF JURY TRIAL. EACH OF THE COMPANY AND EACH STOCKHOLDER HEREBY
IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THE
ACTIONS OF THE COMPANY, THE COMPANY OR EACH STOCKHOLDER IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE AND ENFORCEMENT OF THIS AGREEMENT.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be signed individually or by its respective duly authorized officer as of the
date first written above.
HIGH RIVER LIMITED PARTNERSHIP
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Authorized Signatory
KOALA HOLDING LIMITED PARTNERSHIP
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Authorized Signatory
ICAHN PARTNERS MASTER FUND LP
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Signatory
ICAHN PARTNERS LP
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Signatory
XXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman and Chief Executive Officer
SCHEDULE I
NUMBER OF SHARES
STOCKHOLDER NAME OF COMMON STOCK
---------------- -------------------
High River Limited Partnership 659,860
Koala Holding Limited Partnership 1,739,131
Icahn Partners Master Fund LP 5,526,235
Icahn Partners LP 4,069,718
Total 11,994,944
