EXHIBIT 99.1
VOTING AGREEMENT
This Voting Agreement (this "AGREEMENT") is entered into effective as
of March 8, 2002, among Group 4 Xxxxx A/S, a Danish company (the "Buyer"), RIJA
Associates, L.L.C. ("RIJA"), and each of the persons listed on SCHEDULE I hereto
(each a "Shareholder" and, collectively, the "Shareholders"). Capitalized terms
used but not defined in this Agreement shall have the meanings ascribed to them
in the Merger Agreement (as defined below).
A. As of the date hereof, each Shareholder owns of record or has
the power to vote or direct the vote of the number of shares
of Series A Common Stock, $0.10 par value ("SERIES A COMMON
STOCK") and Series B Common Stock, $0.10 par value ("SERIES B
COMMON STOCK"), of The Wackenhut Corporation, a Florida
corporation (the "COMPANY"), as set forth opposite the
Shareholder's name on SCHEDULE I hereto (all such Series A
Common Stock and Series B Common Stock and any shares of
Series A Common Stock and Series B Common Stock of which
ownership of record or the power to vote is hereafter acquired
by any Shareholder prior to the termination of this Agreement
being referred to herein as the "SHARES").
B. Buyer, Milestone Acquisition Corporation, a Florida
corporation and a wholly owned subsidiary of Buyer (the
"MERGER SUBSIDIARY"), and the Company propose to enter into an
Agreement and Plan of Merger dated as of the date of this
Agreement (as the same may be amended from time to time, the
"MERGER AGREEMENT") that provides, upon the terms and subject
to the conditions thereof, for the merger of the Company with
and into the Merger Subsidiary (the "MERGER").
C. A condition to Buyer's execution and delivery of the Merger
Agreement is each Shareholder's and RIJA's execution of this
Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements and covenants set forth herein and in the Merger Agreement, and
intending to be legally bound hereby, the parties hereto hereby agree as
follows:
ARTICLE I
TRANSFER AND VOTING OF SHARES
SECTION 1.01 TRANSFER OF SHARES. During the period commencing on the
date of this Agreement and terminating at the Effective Time, each Shareholder
agrees that such Shareholder shall not, directly or indirectly, (a) sell, pledge
or otherwise dispose of any or all of the Shareholder's Shares, except pursuant
to the Merger Agreement, (b) deposit any Shares into a voting trust or enter
into a voting agreement or arrangement with respect to any Shares or grant any
proxy with respect thereto (other than as contemplated hereunder), or (c) enter
into any contract, option or other arrangement or undertaking (other than the
Merger Agreement) with respect to the direct or indirect acquisition or sale,
assignment, transfer or other disposition of any Shares; provided however, that
notwithstanding anything in this Section 1.01 to the contrary, each Shareholder
may transfer any of such Shareholder's Shares to any one or more of the other
Shareholders party to this Agreement (each a "PERMITTED TRANSFEREE").
SECTION 1.02 VOTE IN FAVOR OF MERGER. During the period commencing on
the date hereof and terminating at the Effective Time, in order to, among other
things, permit RIJA to surrender the Shares in accordance with the Merger
Agreement, each Shareholder, solely in such Shareholder's capacity as a
shareholder of the Company, agrees to vote (or cause to be voted) all such
Shareholder's Shares at any meeting of the shareholders of the Company, and in
any action by written consent of the shareholders of the Company, (i) in favor
of the adoption of the Merger Agreement, (ii) against any merger, consolidation,
sale of assets, recapitalization or other business combination involving the
Company (other than the Merger) or any other action or agreement, in each case,
that would result in a breach of any covenant, representation or warranty or any
other obligation or agreement of the Company or any of its Subsidiaries under
the Merger Agreement or which would result in any of the conditions to the
Company's or any of its Subsidiaries' obligations under the Merger Agreement not
being fulfilled, and (iii) in favor of any other matter relating to consummation
of the transactions contemplated by the Merger Agreement.
SECTION 1.03 GRANT OF PROXY; FURTHER ASSURANCES. (a) In order to, among
other things, permit RIJA to surrender the Shares in accordance with the Merger
Agreement, each Shareholder, by this Agreement, with respect to such
Shareholder's Shares, does hereby irrevocably constitute and appoint Buyer, or
any nominee of Buyer, with full power of substitution, as such Shareholder's
true and lawful attorney and proxy, for and in such Shareholder's name, place
and stead, to vote each of such Shares as the Shareholder's proxy, at every
annual, special or adjourned meeting of the shareholders of the Company
(including the right to sign such Shareholder's name (as shareholder) to any
consent, certificate or other document relating to the Company that may be
permitted or required by applicable law) (i) in favor of the adoption of the
Merger Agreement and the other transactions contemplated by the Merger
Agreement, (ii) against any merger, consolidation, sale of assets,
recapitalization or other business combination involving the Company (other than
the Merger) or any other action or agreement that, in each case, 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 would result in any
of the conditions to the Company's obligations under the Merger Agreement not
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being fulfilled, and (iii) in favor of any other matter relating to consummation
of the Merger. Each Shareholder acknowledges receipt and review of a copy of the
Merger Agreement.
(b) Each Shareholder shall perform such further acts and
execute such further documents and instruments as may reasonably be required to
vest in Buyer the power to carry out the provisions of this Agreement.
SECTION 1.04 TERMINATION. The obligations of each Shareholder pursuant
to this Agreement shall terminate upon the earlier of (i) the Effective Time and
(ii) the date of the termination of the Merger Agreement in accordance with the
terms of the Merger Agreement.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES;
COVENANTS OF THE SHAREHOLDER
Each Shareholder, severally and not jointly, hereby represents and
warrants and covenants to Buyer as follows:
SECTION 2.01 ORGANIZATION; AUTHORIZATION. Such Shareholder has all
legal capacity to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by or on behalf of such Shareholder and, assuming its due
authorization, execution and delivery by Buyer, constitutes a legal, valid and
binding obligation of such Shareholder, enforceable against such Shareholder in
accordance with its terms, subject to the effect of any applicable bankruptcy,
reorganization, insolvency, moratorium or similar law affecting creditors'
rights generally and subject, as to enforceability, to the effect of general
principles of equity.
SECTION 2.02 NO CONFLICT; REQUIRED FILINGS AND CONSENTS. (a) The
execution and delivery of this Agreement by such Shareholder does not, and the
performance of this Agreement by such Shareholder will not, (i) conflict with or
violate any law, rule, regulation, order, judgment or decree applicable to such
Shareholder or by which such Shareholder or any of such Shareholder's properties
is bound or affected,(ii) if applicable, the Articles of Incorporation, By-Laws
or other equivalent organizational documents, or (iii) result in any breach of
or constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to another party any rights of
termination, amendment, acceleration or cancellation of, or result in the
creation of a lien or encumbrance on any of the property or assets of such
Shareholder, including, without limitation, such Shareholder's Shares, pursuant
to any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which such Shareholder is
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a party or by which such Shareholder or any of such Shareholder's properties is
bound or affected. There is no beneficiary or holder of a voting trust
certificate or other interest of any trust of which such Shareholder is a
trustee whose consent is required for the execution and delivery of this
Agreement or the consummation by such Shareholder of the transactions
contemplated by this Agreement.
(b) The execution and delivery of this Agreement by such Shareholder
does not, and the performance of this Agreement by such Shareholder will not,
require any consent, approval, authorization or permit of, or filing with or
notification to, any governmental or regulatory authority, domestic or foreign,
except (i) for applicable requirements, if any, of the Securities Exchange Act
of 1934, as amended (the "EXCHANGE ACT"), and (ii) where the failure to obtain
such consents, approvals, authorizations or permits, or to make such filings or
notifications, could not prevent or materially delay the performance by such
Shareholder of such Shareholder's obligations under this Agreement. Such
Shareholder does not have any understanding in effect with respect to the voting
of any of such Shareholder's Shares or with respect to the transfer of any of
such Shareholder's Shares, except to a Permitted Transferee. Such Shareholder is
not required to make any filing with or notify any governmental or regulatory
authority in connection with this Agreement, the Merger Agreement or the
transaction contemplated hereby or thereby pursuant to the requirements of the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvement Act of 1976 and the rules and
regulations promulgated thereunder (the "HSR ACT").
SECTION 2.03 LITIGATION. There is no private or governmental action,
suit, proceeding, claim, arbitration or investigation pending before any agency,
court or tribunal, foreign or domestic, or, to the knowledge of such
Shareholder, threatened against such Shareholder or any of such Shareholder's
affiliates or any of their respective properties that, individually or in the
aggregate, would reasonably be expected to materially delay or impair such
Shareholder's ability to perform such Shareholder's obligations provided in
Article I. There is no judgment, decree or order against such Shareholder or, to
the knowledge of such Shareholder, against any of such Shareholder's affiliates
that could prevent, enjoin, alter or materially delay such Shareholder's
performance of his obligations provided in Article I, or that could reasonably
be expected to have a material adverse effect on such Shareholder's ability to
perform his obligations provided in Article I.
SECTION 2.04 TITLE TO SHARES. Each Shareholder has title to and is the
record owner of all the Shares listed across from such Shareholder's name on
SCHEDULE I hereto free and clear of all encumbrances, proxy or voting
restrictions other than pursuant to this Agreement. Except as is disclosed on
SCHEDULE I hereto, such Shares are all the securities of the Company owned of
record by such Shareholder on the date of this Agreement.
SECTION 2.05 RELEASE OF CLAIMS. Effective as of the Effective Time,
each Shareholder, on behalf of such Shareholder and any of the Shareholder's
affiliates (other than the Company) releases and forever discharges the Company
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and its predecessors, successor, assigns, officers, directors, shareholders,
employees and agents, and each of them, from any and all claims, actions, causes
of actions, suits, debts, liens, demands, contracts, liabilities, agreements,
costs, expenses, or losses of any type, whether known or unknown, fixed or
contingent, based on any fact or circumstance from the beginning of time to the
date of this Agreement, arising out of or relating to such Shareholder's
ownership of the Shares, whether based on contract, tort, statute, local
ordinance, regulation or any comparable law in any jurisdiction, other than any
rights under the Merger Agreement.
SECTION 2.06 NO SOLICITATION. Except as otherwise provided in the
Merger Agreement pertaining to such Shareholder's capacity as an officer or
director of the Company, each Shareholder will not, directly or indirectly, and
will instruct such Shareholder's agents, representatives, affiliates, employees,
officers and directors not to, directly or indirectly, solicit, initiate or
knowingly encourage (including by way of furnishing nonpublic information), or
take any other action knowingly to facilitate, any inquires or the making of any
proposal or offer (including, without limitation, any proposal or offer to the
shareholders of the Company) that constitutes, or may reasonably be expected to
lead to, any Acquisition Proposal, or enter into or maintain or continue
discussion or negotiate with any person or entity in furtherance of such
inquires or to obtain an Acquisition Proposal, or agree to or endorse any
Acquisition Proposal, and each Shareholder shall notify Buyer immediately after
receipt by such Shareholder of any Acquisition Proposal, or inquiry respecting,
an Acquisition Proposal or any request for nonpublic information in connection
with such a proposal or inquiry, or for access to the properties, books or
records of the Company by any person or entity that informs or has informed such
Shareholder that it is considering making or has made such a proposal or
inquiry. Such notice to Buyer shall indicate in reasonable detail the identity
of the person making the Acquisition Proposal or inquiry and the terms and
conditions of such proposal or inquiry. Except as otherwise provided in the
Merger Agreement pertaining to such Shareholder's capacity as an officer or
director of the Company, each Shareholder immediately shall cease and cause to
be terminated all existing discussions or negotiations with any parties
conducted heretofore with respect to an Acquisition Proposal.
SECTION 2.07 CONFIDENTIALITY. Each Shareholder agrees to:
(a) treat and hold as confidential (and not disclose or
provide access to any person other than Buyer and its agents, representatives,
affiliates, employees, officers and directors) all information relating to trade
secrets, patent and trademark applications, product development, price, customer
and supplier lists, pricing and marketing plans, policies and strategies,
5
details of client and consultant contracts, operations methods, product
development techniques, business acquisition plans, new personnel acquisition
plans and all other confidential information with respect to the Company, Buyer,
any affiliates of Buyer or their businesses;
(b) if such Shareholder becomes legally compelled to disclose
any such information, provide Buyer with prompt written notice of such
requirement so that Buyer or the Company may seek a protective order or other
remedy or waive compliance with this Section 2.07; and
(c) if such protective order or other remedy is not obtained,
or Buyer waives compliance with this Section 2.07, furnish only that portion of
such confidential information that is legally required to be provided and
exercise its best efforts to obtain assurances that confidential treatment will
be accorded such information;
PROVIDED, HOWEVER, that this sentence shall not apply to any information that,
(i) at the time of disclosure, is available publicly and was not disclosed in
breach of this Agreement by such Shareholder, (ii) must be disclosed under
applicable laws or regulations or judicial or administrative proceedings
(subject to clauses (b) and (c) above), or (iii) shall be disclosed to such
Shareholder's legal advisors who need to know such information in connection
with advising such Shareholder as to his legal rights and obligations. Such
Shareholder agrees and acknowledges that remedies at law for any breach of such
Shareholder's obligations under this Section 2.07 are inadequate and that in
addition thereto Buyer shall be entitled to seek equitable relief, including
injunction and specific performance, in the event of any such breach.
SECTION 2.08 COMMUNITY PROPERTY. Each Shareholder is a resident of the
State of Florida and none of such Shareholder's Shares are subject to or
encumbered by rights granted under any community property statute that could
adversely affect the covenants made by the Shareholder pursuant to this
Agreement or the sale and transfer of the Shares to Buyer pursuant to the terms
of the Merger Agreement.
Article III.
GENERAL PROVISIONS
SECTION 3.01 NOTICES. All notices and other communications given or
made pursuant hereto shall be in writing and shall be given (and shall be deemed
to have been duly given upon receipt) by registered or certified mail (postage
prepaid, return receipt requested) to the respective parties at the following
addresses (or at such other addresses as shall be specified by notice given in
accordance with this Section 4.01):
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(a) if to Buyer:
Group 4 Xxxxx A/S
Polititorvet
DK-1750 Copenhagen V
Attention: General Counsel
with a copy to:
Holland & Knight LLP
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx, Esq.
(b) If RIJA or to a Shareholder to the address set forth
across from such party's name on SCHEDULE I hereto
with a copy to:
Xxxxxx & Xxxxxx, P.A.
0000 X. Xxxxx Xxxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, XX, Esq.
SECTION 3.02 HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 3.03 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 the transactions contemplated hereby 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 to the fullest extent
permitted by applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
SECTION 3.04 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement of the parties and supersedes all prior agreements and undertakings,
both written and oral, between the parties, or any of them, with respect to the
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subject matter hereof. This Agreement may not be amended or modified except in
an instrument in writing signed by, or on behalf of, the parties hereto.
SECTION 3.05 ASSIGNMENT. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, provided that no party may assign, delegate or
otherwise transfer any of its rights, interests or obligations under this
Agreement without the prior written consent of the other parties hereto, except
that Buyer may assign, delegate or otherwise transfer any of its rights,
interests or obligations under this Agreement to an affiliate without the
consent of the Shareholder.
SECTION 3.06 FEES AND EXPENSES. Except as otherwise provided herein,
all costs and expenses (including, without limitation, all fees and
disbursements of counsel, accountants, investment bankers, experts and
consultants to a party) incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such costs
and expenses.
SECTION 3.07 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 3.08 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Florida applicable to
contracts executed in and to be performed in that State.
SECTION 3.09 NO WAIVER. No failure or delay by any party in exercising
any right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
SECTION 3.10 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, which may be by facsimile, and by the different parties
hereto in separate counterparts, each of which when executed shall be deemed to
be an original but all of which taken together shall constitute one and the same
agreement.
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IN WITNESS WHEREOF, each of Buyer, RIJA and each Shareholder has
executed or has caused this Agreement to be executed as of the date first
written above.
Group 4 Xxxxx A/S
By: /s/ Xxxx Xxxxx Xxxxxxxx
--------------------------------------------------
Name: Xxxx Xxxxx Xxxxxxxx
Title: President & Chief Executive Officer
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Chief Financial Officer
RIJA Associates, L.L.C.
By: /s/ Xxxxx Xxxxxxxxx Xxxx
--------------------------------------------------
Name: Xxxxx Xxxxxxxxx Xxxx
Title: Vice-President
/s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------------------------
Xxxxxx X. Xxxxxxxxx
/s/ Xxxx X. Xxxxxxxxx
-----------------------------------------------------
Xxxx X. Xxxxxxxxx
/s/ Xxxxxx X. Xxxx
-----------------------------------------------------
Xxxxxx X. Xxxx, trustee of each trust of which he
is a trustee indicated on Schedule I
Effilcet Corporation, trustee of each trust of
which it is a trustee indicated on Schedule I
By: /s/ Xxxxxx X. Xxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxx
Title: President
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SCHEDULE I
Shares Held
NUMBER OF SHARES OF NUMBER OF SHARES OF
COMPANY SERIES A COMPANY SERIES B COMMON
NAME OF SHAREHOLDER AND ADDRESS COMMON STOCK OWNED STOCK OWNED
------------------------------- ------------------ -----------
Xxxxxx X. Xxxxxxxxx 390,080 54,537
Xxxx X. Xxxxxxxxx 390,079 0
Effilcet Corporation and
Xxxxxx X. Xxxx, trustees of:
Family Trust for Xxxxxxx
Xxxxxxxxx under Xxxxxx X.
Xxxxxxxxx Retained Annuity
Trust Agreement dated 12/22/95 0 679,032
Family Trust for Xxxxx Xxxxxxxxx
Xxxx under Xxxx X. Xxxxxxxxx
Retained Annuity Trust Agreement
Dated 12/22/95 0 7,927
Family Trust for Xxxxxxx Xxxxxxxxx
Under Xxxx X. Xxxxxxxxx Retained
Annuity Trust Agreement dated
12/22/95 0 7,928
Family Trust for Xxxxx Xxxxxxxxx
Xxxx under Xxxxxx X. Xxxxxxxxx
Retained Annuity Trust Agreement
Dated 12/22/95 0 679,033
Effilcet Corporation, trustee of:
Xxxxxx X. Xxxxxxxxx Retained Annuity
Trust u/a dated March 23, 2000 590,888 751,912
Xxxx X. Xxxxxxxxx Retained Annuity
Trust u/a dated March 23, 2000 558,559 0
Address for all Shareholders:
c/o Xxxxxx X. Xxxx
0000 X.X. 00 Xxx., Xxxxx 000
Xxxxx, XX 00000
