EXECUTION COPY
VOTING AND PROXY AGREEMENT
Between
HALTER MARINE GROUP, INC.
and
X.X. XXXXXXXX
Dated as of June 1, 1999
TABLE OF CONTENTS
Section Page
ARTICLE I
TRANSFER AND VOTING OF SHARES
1.01. Voting Agreement......................................................1
1.02. No Disposition or Encumbrance of Shares...............................2
1.03. Voting of Shares; Further Assurances..................................2
1.04. No Solicitation of Transactions.......................................3
1.05 Action in Shareholder Capacity Only....................................3
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF
THE STOCKHOLDER
2.01. Authorization, etc....................................................4
2.02. No Conflict; Required Filings and Consents............................4
2.03. Title to Shares.......................................................4
2.04. No Finder's Fees......................................................5
2.05. Total Shares..........................................................5
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
HALTER MARINE
3.01. Due Organization; Authority Relative to this Agreement................5
3.02. No Conflict; Required Filings and Consents............................5
ARTICLE IV
ADDITIONAL AGREEMENTS
4.01. Other Action..........................................................6
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Section Page
ARTICLE V
MISCELLANEOUS
5.01. Expenses..............................................................6
5.02. Notices...............................................................6
5.03. Severability..........................................................7
5.04. Assignment............................................................8
5.05. Parties in Interest...................................................8
5.06. Specific Performance..................................................8
5.07. Governing Law; Consent to Jurisdiction................................8
5.08. Headings..............................................................8
5.09. Counterparts..........................................................8
5.10. Waiver of Jury Trial..................................................9
5.11. Termination...........................................................9
5.12. Entire Agreement......................................................9
5.13. Further Assurances....................................................9
5.14. Certain Events........................................................9
5.15. Attorneys' Fees.......................................................9
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VOTING AND PROXY AGREEMENT dated as of June 1, 1999 (this "Agreement")
by and between HALTER MARINE GROUP, INC., a Delaware corporation ("Halter
Marine"), and X.X. XXXXXXXX (the "Stockholder").
WHEREAS, as of the date hereof, the Stockholder owns (beneficially or
of record) the number (i) of shares of common stock ("Company Common Stock"),
par value $0.01 per share, of Xxxxxx Xxxxxxx International Inc., a Mississippi
corporation (the "Company"), and (ii) options and warrants to acquire shares of
the Company Common Stock, each as set forth opposite such Stockholder's name on
Exhibit A hereto (all such shares now owned (beneficially or of record) and
which may hereafter be acquired, pursuant to the exercise of such options or
warrants or otherwise, by the Stockholders prior to the termination of this
Agreement being referred to herein as the "Shares");
WHEREAS, Halter Marine and the Company have entered into an Agreement
and Plan of Merger dated as of the date hereof (the "Merger Agreement";
capitalized terms used but not otherwise defined in this Agreement have the
meanings assigned to such terms in the Merger Agreement), which provides, upon
the terms and subject to the conditions set forth therein, for the merger of
Halter Marine with and into Columbus (the "Merger"); and
WHEREAS, as a condition to the willingness of Halter Marine to enter
into the Merger Agreement, Halter Marine has required that the Stockholder
agree, and in order to induce Halter Marine to enter into the Merger Agreement,
the Stockholder has agreed 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 hereto hereby agree as follows:
ARTICLE I
TRANSFER AND VOTING OF SHARES
SECTION 1.01. Voting Agreement. The Stockholder hereby agrees that from
the date hereof until the termination of this Agreement, at any meeting of the
stockholders of the Company, however called, and in any action by consent of the
stockholders of the Company, such Stockholder shall vote the Shares over which
such Stockholder has voting power: (A) in favor of the Merger and the Merger
Agreement (as amended from time to time) and each of the actions contemplated by
Halter Marine in connection with the Merger or pursuant to the Merger Agreement
and (B) against any proposal for any recapitalization, merger (other than the
Merger), sale of assets or other business combination between the Company and
any person or entity (other than Halter Marine) or any other action or agreement
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that would result in a breach of any covenant, representation or warranty or any
other obligation or agreement of the Company under the Merger Agreement or which
could result in any of the conditions to the Merger Agreement not being
fulfilled.
SECTION 1.02. No Disposition or Encumbrance of Shares. The Stockholder
hereby covenants and agrees that, from the date hereof to the termination of
this Agreement, he shall not, and shall not offer or agree to, sell, transfer,
tender, assign, hypothecate or otherwise dispose of, or create or permit to
exist any Encumbrance (as hereinafter defined) on the Shares now owned or that
may hereafter be acquired by such Stockholder at any time prior to the
termination of this Agreement; provided, however, Stockholder may sell the
Shares pursuant to Rule 144 of the Securities Act of 1933, as amended, to the
extent such sale is in compliance with applicable law.
SECTION 1.03. Voting of Shares; Further Assurances. (a) The
Stockholder, by this Agreement, with respect to those Shares that he owns of
record, that he has the right to vote or that may hereafter be acquired by such
Stockholder at any time prior to the Effective Time, does hereby (i) revoke any
and all proxies previously granted with respect to the matters set forth in
Section 1.01 with respect to such Shares and (ii) constitute and appoint Halter
Marine, or any nominee of Halter Marine, with full power of substitution, from
the date hereof to the termination of this Agreement, as its true and lawful
attorney and proxy (its "Proxy"), for it and in its name, place and stead, to
vote each of such Shares as its Proxy, at every annual, special or adjourned
meeting of the stockholders of the Company, including the right to sign its name
(as Stockholder) to any consent, certificate or other document relating to the
Company that the law of the State of Mississippi may permit or require:
(i) in favor of the Merger and the Merger Agreement (as amended from
time to time) and each of the actions contemplated by Halter Marine in
connection with the Merger or pursuant to the Merger Agreement; and
(ii) against any proposal for any recapitalization, merger (other than
the Merger), sale of assets or other business combination between the
Company and any person or entity (other than Halter Marine) or any other
action or agreement that would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the
Company under the Merger Agreement or which could result in any of the
conditions to the Merger Agreement not being fulfilled.
THIS PROXY AND POWER OF ATTORNEY IS IRREVOCABLE AND COUPLED WITH AN INTEREST.
The Stockholder acknowledges receipt and review of a copy of the Merger
Agreement.
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(b) The Stockholder shall perform such further acts and execute such
further documents and instruments as may reasonably be required to vest in
Halter Marine the power to carry out and give effect to the provisions of this
Agreement.
(c) Prior to the termination of this Agreement pursuant to its terms,
the Stockholder shall not grant any proxies or powers of attorney with respect
to matters set forth in Section 1.01, deposit any of the Shares into a voting
trust or enter into a voting agreement with respect to any of the Shares, in
each case with respect to such matters.
SECTION 1.04. No Solicitation of Transactions. The Stockholder shall
not, directly or indirectly, and will instruct his agents, advisors and other
representatives not to, directly or indirectly, solicit, initiate or encourage
(including by way of furnishing non-public information), or take any other
action to facilitate, any inquiries or the making of any proposal or offer that
constitutes, or may reasonably be expected to lead to, any Columbus Takeover
Proposal (as defined in the Merger Agreement), or enter into or maintain or
continue discussions or negotiate with any person or entity in furtherance of
such inquiries, or to obtain a Columbus Takeover Proposal, or agree to or
endorse any Columbus Takeover Proposal. The Stockholder immediately shall cease
and cause to be terminated all existing discussions or negotiations of such
Stockholder and his agents, advisors or other representatives with any person
conducted heretofore with respect to a Columbus Takeover Proposal. The
Stockholder shall notify Halter Marine within 24 hours if any proposal or offer,
or any inquiry or contact with any person with respect thereto, regarding a
Columbus Takeover Proposal is made and shall, in any such notice, indicate the
identity of the person making such proposal, offer, inquiry or contact and, in
reasonable detail, the terms and conditions of such proposal, offer, inquiry or
contact and shall keep Halter Marine informed within 24 hours of all material
changes in such proposal, offer, inquiry or contact.
SECTION 1.05 Action in Shareholder Capacity Only. The Stockholder makes
no agreement or understanding herein in any capacity other than his capacity as
a record holder and beneficial owner of Shares, and nothing herein shall limit
or affect any actions taken in any other capacity.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF
THE STOCKHOLDER
The Stockholder hereby represents and warrants to Halter Marine as
follows:
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SECTION 2.01. Authorization, etc. The Stockholder has all requisite
power and authority to execute and deliver this Agreement, to appoint Halter
Marine as his Proxy and to consummate the transactions contemplated hereby. This
Agreement has been duly executed and delivered by or on behalf of the
Stockholder and, assuming its due authorization, execution and delivery by
Halter Marine, constitutes a legal, valid and binding obligation of the
Stockholder, enforceable against the Stockholder in accordance with its terms.
SECTION 2.02. No Conflict; Required Filings and Consents. (a) The
execution and delivery of this Agreement by the Stockholder does not, and the
performance of this Agreement by the Stockholder will not, (i) assuming that all
filings and obligations described in subsection (b) have been made, conflict
with or violate any foreign or domestic law, statute, ordinance, rule,
regulation, order, judgement or decree ("Law") applicable to the Stockholder or,
if applicable, by which any property or asset of the Stockholder is bound or
affected or (ii) if applicable, result in any breach of or constitute a default
(or an event which with the giving of notice or lapse of time or both would
become a default) under, or give to others any right of termination, amendment,
acceleration or cancellation of, or result in the creation of a lien or other
encumbrance on any property or asset of the Stockholder pursuant to, any note,
bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation, except, with respect to clauses (i)
and (ii), for any such conflicts, violations, breaches, defaults or other
occurrences which would neither, individually or in the aggregate, prevent or
materially delay the performance by the Stockholder of any of his obligations
pursuant to this Agreement.
(b) The execution and delivery of this Agreement do not, and the
performance of this Agreement by Halter Marine will not, require any consent,
approval, authorization or permit of, or filing with, or notification to, any
Governmental Entity, except for applicable requirements, if any, of the Exchange
Act.
SECTION 2.03. Title to Shares. The Stockholder is the record and
beneficial owner of the Shares set forth opposite such Stockholder's name on
Exhibit A hereto free and clear of any pledge, lien, security interest,
mortgage, charge, claim, equity, option, proxy, voting restriction, right of
first refusal, limitation on disposition, adverse claim of ownership or use or
encumbrance of any kind, other than pursuant to this Agreement, the Merger
Agreement, the Agreement dated August 19, 1998 between the Stockholder and X.X.
Xxxxxxx & Sons, Inc. with respect to not more than 1,309,500 shares of Common
Stock, and the Credit Agreement and the two Pledge Agreements, each dated July
15, 1998 between the Stockholder and Nations Bank with respect to not more than
5,229,500 shares of Common Stock in the aggregate and except that the
Stockholder does not own 650,000 shares of Voting Stock listed on Exhibit A but
only the voting rights with respect to such shares pursuant to a Voting Trust
Agreement, dated as of January 25, 1999 by and between the Stockholder and
Xxxxxxx X. Xxxxxxxx.
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SECTION 2.04. No Finder's Fees. Except as disclosed in the Merger
Agreement, no broker, finder or investment banker is entitled to any broker's,
finder's, or other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of the
Stockholder.
SECTION 2.05. Total Shares. Except as set forth on Exhibit A hereto,
the Stockholder does not have any option to purchase or right to subscribe for
or otherwise acquire any securities of the Company and, other than with respect
to the Shares set forth on Exhibit A, has no other interest in or voting rights
with respect to any other securities of the Company.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
HALTER MARINE
Halter Marine represents and warrants to the Stockholder as
follows:
SECTION 3.01. Due Organization; Authority Relative to this Agreement.
Halter Marine is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. Halter Marine has all
necessary power and authority to execute and deliver this Agreement, to perform
its obligations hereunder and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation by
Halter Marine of the transactions contemplated hereby by Halter Marine have been
duly and validly authorized by all necessary corporate action and no other
corporate proceedings on the part of Halter Marine are necessary to authorize
this Agreement or to consummate such transactions. This Agreement has been duly
and validly executed and delivered by Halter Marine and, assuming its due
authorization, execution and delivery by the Stockholder, constitutes a legal,
valid and binding obligation of Halter Marine, enforceable against Halter Marine
in accordance with its terms.
SECTION 3.02. No Conflict; Required Filings and Consents. (a) The
execution and delivery of this Agreement by Halter Marine does not, and the
performance of this Agreement by Halter Marine will not (i) conflict with or
violate any the Articles of Incorporation or Bylaws of Halter Marine or any
equivalent organizational documents of any subsidiary of Halter Marine, (ii)
assuming that all consents, approvals, authorizations and permits described in
subsection (b) have been obtained and all filings and obligations described in
subsection (b) have been made, conflict with or violate any Law applicable to
Halter Marine or any subsidiary of Halter Marine or by which any property or
asset of Halter Marine or any subsidiary of Halter Marine is bound or affected
or (iii) result in any breach of or constitute a
6
default (or an event which with the giving of notice or lapse of time or both
would become a default) under, or give to others any right of termination,
amendment, acceleration or cancellation of, or result in the creation of a lien
or other encumbrance on any property or asset of Halter Marine or any subsidiary
of Halter Marine pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation,
except, with respect to clauses (ii) and (iii), for any such conflicts,
violations, breaches, defaults or other occurrences which would neither,
individually or in the aggregate, prevent or materially delay the performance by
Halter Marine of any of its obligations pursuant to this Agreement.
(b) The execution and delivery of this Agreement do not, and the
performance of this Agreement by Halter Marine will not, require any consent,
approval, authorization or permit of, or filing with, or notification to, any
Governmental Entity, except (i) for applicable requirements, if any, of the
Exchange Act and the HSR Act, and (ii) where failure to obtain such consents,
approvals, authorizations or permits, or to make such filings or notifications,
would not prevent or delay consummation of the Merger, or otherwise prevent
Halter Marine from performing its obligations under this Agreement, and would
not, individually or in the aggregate, have a Halter Marine Material Adverse
Effect.
ARTICLE IV
ADDITIONAL AGREEMENTS
SECTION 4.01. Other Action. Each of the parties hereto shall use all
reasonable best efforts to take, or cause to be taken, all appropriate action,
and to do, or cause to be done, all things necessary, proper or advisable under
applicable Laws to consummate and make effective the transactions contemplated
hereunder.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Expenses. Except as otherwise provided herein, all costs
and expenses incurred in connection with the transactions contemplated by this
Agreement shall be paid by the party incurring such costs and expenses.
SECTION 5.02. 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, cable, telecopy, telegram or
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telex, or by registered or certified mail (postage prepaid, return receipt
requested) or nationally recognized overnight courier service to the respective
parties at the following addresses (or at such other address for a party as
shall be specified in a notice given in accordance with this Section 5.02):
(a) If to Halter Marine:
Halter Marine Group, Inc.
00000 Xxxxxxxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: General Counsel
with a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxx X. Xxxxxx, Esq.
(b) If to the Stockholder, to the address set forth below the
Stockholder's name on the signature pages hereof.
with copies to:
Xxxxxxx & Xxxxx L.L.P.
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
SECTION 5.03. 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 so long as the economic or legal
substance of this Agreement is not affected in any manner materially adverse to
any party. 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 in a mutually acceptable manner in order that the
terms of this Agreement remain as originally contemplated to the fullest extent
possible.
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SECTION 5.04. Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise), without prior written consent
of the other parties except that Halter Marine may assign all or any of their
rights and obligations hereunder to any affiliate of Halter Marine, provided
that no such assignment shall relieve Halter Marine of its obligations hereunder
if such assignee does not perform such obligations.
SECTION 5.05. Parties in Interest. This Agreement shall be binding upon
and shall inure solely to the benefit of, and be enforceable by, the parties
hereto and their respective successors, heirs, representatives and permitted
assigns. Notwithstanding anything contained in this Agreement to the contrary,
nothing in this Agreement, express or implied, is intended to or shall confer
upon any person, other than the parties hereto or their respective successors
and permitted assigns, any rights, remedies, obligations or liabilities of any
nature whatsoever under or by reason of this Agreement.
SECTION 5.06. 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, that the parties hereto would
not have an adequate remedy at law for money damages in such event 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 5.07. Governing Law; Consent to Jurisdiction. This Agreement
shall be governed by, and construed in accordance with, the laws of the State of
Delaware applicable to contracts executed in and to be performed in that State.
All actions and proceedings arising out of or relating to this Agreement shall
be heard and determined in any Delaware State or Federal Court. Each party
hereto irrevocably submits to the nonexclusive jurisdiction of (a) the state
courts of the State of Delaware and (b) the United States federal district
courts located in the State of Delaware for the purposed of any suit, action or
other proceeding arising out of this Agreement or any transaction contemplated
hereby.
SECTION 5.08. Headings. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
SECTION 5.09. Counterparts. This Agreement may be executed and
delivered (including by facsimile transmission) in one or more counterparts, and
by the different parties hereto in separate counterparts, each of which when
executed and delivered shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
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SECTION 5.10. Waiver of Jury Trial. Halter Marine and the Stockholder
hereby irrevocably waives all right 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 actions of Halter Marine and the Stockholder
in the negotiation, administration, performance and enforcement thereof.
SECTION 5.11. Termination. Except for this Article V, this Agreement
shall terminate and be of no further force and effect, automatically and without
any required action of the parties hereto, at the earlier to occur of (a) the
Effective Time, (b) the termination of the Merger Agreement in accordance with
its terms in any manner in which Halter Marine would not be entitled pursuant to
Section 8.05(c) of the Merger Agreement to payment of the Termination Fee as
specified therein, or (c) three months after the termination of the Merger
Agreement in accordance with its terms in any manner in which Halter Marine
would be entitled pursuant to Section 8.05(c) of the Merger Agreement to payment
of the Termination Fee as specified therein.
SECTION 5.12. Entire Agreement. This Agreement and, to the extent
referred to herein, the Merger Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersede all
prior agreements and understandings, both written and oral, among the parties,
or any of them, with respect thereto; provided, however, that any capitalized
terms used but not defined herein shall have the meanings ascribed to such terms
in the Merger Agreement. No addition to or modification of any provision of this
Agreement shall be binding upon any party hereto unless made in writing and
signed by all parties hereto.
SECTION 5.13. Further Assurances. From time to time, at the request of
the Company, in the case of the Stockholder, or at the request of the
Stockholder, in the case of the Company, and without further consideration, each
party shall execute and deliver or cause to be executed and delivered such
additional documents and instruments and take all such further action as may be
reasonably necessary or desirable to consummate the transaction contemplated by
this Agreement.
SECTION 5.14. Certain Events. The Stockholder agrees that this
Agreement and the obligations hereunder shall attach to the Shares and shall be
binding upon any person to which legal or beneficial ownership of such Shares
shall pass, whether by operation of law or otherwise.
SECTION 5.15. Attorneys' Fees. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees, costs and necessary
disbursements, in addition to any other relief to which such party may be
entitled.
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IN WITNESS WHEREOF, Halter Marine has caused this Agreement to be
executed by its officer thereunto duly authorized and the Stockholder has caused
this Agreement to be executed, or duly executed by an authorized signatory, as
of the date first written above.
HALTER MARINE GROUP, INC.
By /s/ Xxxx Xxxx III
-------------------------------------------
Name: Xxxx Xxxx III
Title: Chairman, Chief Executive Officer
and President
/s/ X.X. Xxxxxxxx
----------------------------------------------
Name: X.X. Xxxxxxxx
Address: c/o Xxxxxx Xxxxxxx International Inc.
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Exhibit A
List of Stockholdings
Number of
Shares of Number of
Common Stock Stock Options
------------ -------------
X.X. Xxxxxxxx 7,349,477 90,000
X.X. Xxxxxxxx Family Trust 1,920,500
Voting Trust (Xxxxxxx X. Xxxxxxxx) 650,000
------------ -------------
Total 9,919,977 90,000
============ =============
(1) Of such options, none are currently vested.
(2) As trustee under the Voting Trust created pursuant to Voting Trust
Agreement, dated January 25, 1999, between X. X. Xxxxxxxx and Xxxxxxx
X. Xxxxxxxx, X. X. Xxxxxxxx has voting power, but does not have
dispository power or a pecuniary interest, with respect to such shares.
