Exhibit 99.
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement") is made as of June 14, 2000 by
and among the undersigned stockholders (the "Stockholders") of USA Detergents,
Inc., a Delaware corporation (the "Company"), the Company, and Church & Xxxxxx
Co., Inc., a Delaware corporation ("CHD").
A. The Company and CHD have entered into that certain Limited Liability
Company Operating Agreement of Armus, LLC ("Armus"), dated as of June 13, 2000
(the "LLC Agreement"), for the purpose of establishing a joint venture to
combine the laundry detergent businesses of CHD and the Company.
B. Section 9.4 of the LLC Agreement grants to CHD an option (the
"Option") to purchase all of the Company's ownership interests in Armus, all of
the Company's assets and properties used in the Business (as such term is
defined in the LLC Agreement) and all intellectual property covered by the
license to be entered into between Armus and the Company in accordance with the
terms of the LLC Agreement.
C. If CHD elects to exercise the Option the resulting purchase and
sale of assets (the "Asset Sale") may require the approval by a majority vote of
the outstanding shares of the Company.
D. As of the date hereof, each Stockholder owns, of record and
beneficially, the number of shares of Company capital stock appearing opposite
his, her or its name on Schedule A (such shares of Company capital stock,
together with any other shares of capital stock of the Company the beneficial
ownership of which is acquired by such Stockholder after the date hereof during
the term of this Agreement, whether upon the exercise of options or by means of
purchase, dividend, distribution or otherwise, and as to which the stockholder
has voting power or control, in all instances to the extent held by such
Stockholder at the applicable time, being collectively referred to herein as the
"Subject Shares").
E. As a condition to its willingness to enter into the LLC Agreement,
CHD has required that the Stockholders agree, and in order to induce CHD to
enter into the LLC Agreement the Stockholders have agreed, to enter into this
Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
1. Covenants of Stockholders. Until the termination of this Agreement
in accordance with Section 4:
(a) Each Stockholder shall attend any and all meetings of
stockholders of the Company called with respect to the Asset Sale, in
person or by proxy, and at such meeting of stockholders (or at any
adjournment thereof) or in any other circumstances upon which a vote,
written consent or other approval with respect to the Asset Sale and
any asset purchase agreement related thereto ("Asset Purchase
Agreement") is sought, each Stockholder shall vote (or cause to be
voted) the Subject Shares in favor of the Asset Sale, the adoption of
the Asset Purchase Agreement and the approval of the terms thereof and
each of the other transactions contemplated by the Asset Purchase
Agreement and necessary for the Asset sale.
(b) Except as set forth in this Agreement, each Stockholder
agrees that it shall not enter into any voting arrangement, whether by
proxy, voting agreement or otherwise, in relation to the Subject Shares
which will negatively impact on the ability of such stockholder to
fulfill its obligations hereunder, and shall not commit or agree to
take any of the foregoing actions.
(c) Each Stockholder shall use his best efforts to take, or
cause to be taken, all actions, and to do, or cause to be done, and to
assist and cooperate with CHD in doing, all things necessary, proper or
advisable to support and to complete and make effective, in the most
expeditious manner practicable, the Asset Sale and the other
transactions contemplated by the Asset Purchase Agreement in the event
CHD exercises the option, In all instances solely in his or her
capacity as a shareholder of the Company.
(d) Each Stockholder shall promptly notify CHD in writing of
the nature and amount of any acquisition by such Stockholder of any
voting securities of the Company acquired by such Stockholder
hereinafter.
(e) Each Stockholder hereby revokes any and all prior proxies
or powers of attorney in respect of any of Subject Shares and
constitutes and appoints CHD, or any nominee of CHD, or any of them,
with full power of substitution and resubstitution, at any time during
the term hereof, as its true and lawful attorney and proxy (its
"Proxy"), for and in its name, place and stead, but solely in his or
her capacity as a stockholder of the Company (i) to demand that the
Secretary or other appropriate officer of the Company call a special
meeting, or to solicit the written consent, of the stockholders of the
Company for the purpose of considering any matter referred to in
Section 1(a) hereof, (ii) to vote each of such Subject Shares, as
provided in Section 1(a), as its proxy at every annual, special,
adjourned or postponed 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 Delaware
General Corporation Law may permit or require as provided in Section
1(a) and (iii) to approve any other motion or action necessary to
effect the foregoing.
The foregoing proxy and power of attorney are irrevocable and coupled
with an interest throughout the term of this Agreement.
2. Representations and Warranties. Each Stockholder represents and
warrants, with respect to himself, to CHD as follows:
(a) The Stockholder is the record and beneficial owner of, and
has good and marketable title to, the Subject Shares. The Stockholder
does not own, of record or beneficially, any shares of capital stock of
the Company other than the Subject Shares. The Stockholder has the sole
right to vote, and the sole power of disposition with respect to, the
Subject Shares, and none of the Subject Shares is subject to any voting
trust, proxy or other agreement, arrangement or restriction with
respect to the voting or disposition of such Subject Shares, except as
contemplated by this Agreement.
(b) This Agreement has been duly executed and delivered by the
Stockholder. Assuming the due authorization, execution and delivery of
this Agreement by CHD, this Agreement constitutes the valid and binding
agreement of the Stockholder enforceable against the Stockholder in
accordance with its terms. The execution and delivery of this Agreement
by the Stockholder does not and will not conflict with any agreement,
order or other instrument binding upon the Stockholder, nor require any
regulatory filing or approval.
3. Representations and Warranties of CHD. CHD represents and warrants
to the Stockholders and the Company that the execution and delivery of this
Agreement by CHD and the completion by it of the transactions contemplated
hereby have been duly authorized by all necessary corporate action on the part
of CHD and this Agreement has been duly executed and delivered by CHD and
constitutes a valid and binding agreement of CHD.
4. Termination. The obligations of the Stockholders hereunder shall
terminate upon expiration of the Option. No such termination of this Agreement
shall relieve any party hereto from any liability for any breach of this
Agreement prior to termination.
5. Further Assurances. The Stockholders will, from time to time,
execute and deliver, or cause to be executed and delivered, such additional or
further consents, documents and other instruments as CHD may reasonably request
for the purpose of effectively carrying out the transactions contemplated by
this Agreement.
6. Remedies. The Company and each Stockholder acknowledges that money
damages would be both incalculable and an insufficient remedy for any breach of
this Agreement by it, and that any such breach would cause CHD irreparable harm.
Accordingly, in the event of any breach or threatened breach of this Agreement,
CHD, in addition to any other remedies at law or in equity it may have, shall be
entitled, without the requirement of posting a bond or other security, to
equitable relief, including injunctive relief and specific performance.
7. Severability. The invalidity or unenforceability of any provision
of this Agreement in any jurisdiction shall not affect the validity or
enforceability of any other provision of this Agreement in such jurisdiction, or
the validity or enforceability of any provision of this Agreement in any other
jurisdiction.
8. Amendment. This Agreement may be amended only by means of a written
instrument executed and delivered by the applicable Stockholders, the Company
and CHD.
9. Jurisdiction. Each party hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts located in New York, New York in
any action, suit or proceeding arising in connection with this Agreement, and
agrees that any such action, suit or proceeding shall be brought only in such
courts (and waives any objection based on forum non conveniens or any other
objection to venue therein). Each party hereto waives any right to a trial by
jury in connection with any such action, suit or proceeding.
10. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware, regardless of the laws
that might otherwise govern under applicable principles of conflicts of laws
thereof.
11. Expenses. Each party hereto shall pay its own expenses incurred in
connection with this Agreement
12. Notice. All notices, requests, demands and other communications
hereunder shall be deemed to have been duly given and made if in writing and if
served by personal delivery upon the party for whom it is intended or if sent by
telex or telecopier (and also confirmed in writing) to the person at the address
set forth below, or such other address as may be designated in writing
hereafter, in the same manner, by such person:
If to CHD, to:
Church & Xxxxxx Co., Inc.
000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Chief Executive Officer
Fax: (000) 000-0000
with a copy to:
Xxxxxx Xxxx & Xxxxxxxx, LLP
0 Xxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
If to the Company, to:
USA Detergents, Inc.
0000 Xxxxxx Xxxxxx
Xxxxx Xxxxxxxxx, XX 00000
Attention: Chief Executive Officer
Facsimile: 000-000-0000
with a copy to:
Fulbright & Xxxxxxxx L.L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Facsimile: 000-000-0000
If to the Stockholder, to:
the address or facsimile number listed in the records of the Company
for such Stockholder.
13. Capitalized Terms. Capitalized terms used in this Agreement that
are not defined herein shall have such meanings as set forth in the LLC
Agreement.
14. Counterparts. For the convenience of the parties, 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 instrument.
15. No Limitation on Actions of the Stockholders as Director.
Notwithstanding anything to the contrary in this Agreement and to the extent
applicable, nothing in this Agreement is intended or shall be construed to
require the Stockholders to take or in any way limit any action that the
Stockholders may take to discharge the Stockholders' fiduciary duties as a
director or officer of the Company.
16. Facsimile Signatures. Any signature page delivered by facsimile or
telecopy shall be binding to the same extent as an original signature page, with
regard to any agreement subject to the terms hereof or any amendment thereto.
Any party who delivers such a signature page agrees to later deliver an original
counterpart to any party who requests it.
[The remainder of this page has been intentionally left blank;
signature pages follow.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered on the day first above written.
"CHD" "Company"
Church & Xxxxxx Co., Inc. USA Detergents, Inc.
By: /s/ Xxxxxx X. Xxxxxx, III By: /s/ Uri Evan
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Name: Xxxxxx X. Xxxxxx, III Name: Uri Evan
Title: Chief Executive Officer Title: Chief Executive Officer
"Stockholders"
/s/ Uri Evan /s/ Xxxxx Xxxx
--------------------------- -------------------------------
Uri Evan Xxxxx Xxxx
Address: 50 East 77th Address: 00 Xxxx 00xx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Xxxxxxx Family Limited Partnership /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
By: /s/ Xxxxxx Xxxxxxx
--------------------------- Address: 1961 East 1st
Name: Xxxxxx Xxxxxxx Xxxxxxxx, XX 00000
Title: General Partner
Address: 0000 Xxxx 0xx
Xxxxxxxx, XX 00000
Schedule A
List of Stockholders and Number of Shares Owned
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Stockholder Shares
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Xxxxx Xxxx 386,430
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Xxxxxxx Family Limited 741,713
Partnership
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