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VOTING AGREEMENT
THIS VOTING AGREEMENT ("AGREEMENT") is dated as of October 2, 1998, and
is entered into by and among Xxxxxxx International, Ltd., a Delaware corporation
(the "COMPANY"), and the other parties signatories hereto.
RECITALS:
A. The total number of shares of all classes of capital stock ("STOCK")
which the Company is authorized to issue is 16,501,000, consisting of (i)
16,000,000 shares of common stock, par value $.001 per share ("COMMON STOCK");
(ii) 500 shares of Series B Common Stock, par value $.001 per share ("SERIES B
COMMON STOCK"); (iii) 500,000 shares of Preferred Stock, par value $.001 per
share ("PREFERRED STOCK"); and (iv) 500 shares of Class B Senior Non-Convertible
Preferred Stock, par value $.001 per share ("CLASS B PREFERRED STOCK").
B. The Company and the other parties hereto (either directly or through
one or more affiliates) are also parties to a certain Agreement, dated as of the
date hereof (the "OMNIBUS AGREEMENT"), which, among other things, sets forth the
terms and conditions under which the New Lender (as hereinafter defined) has
agreed to lend the Company $4,000,000 in immediately available funds (such
transaction being sometimes hereinafter referred to as the "LOAN TRANSACTION").
C. The Omnibus Agreement contemplates that, simultaneously with the
consummation of the Loan Transaction, the undersigned parties will enter into a
separate voting agreement specifying the way in which they will vote their
shares of Capital Stock (as hereinafter defined) with respect to the election of
directors of the Company.
D. This Agreement is the voting agreement contemplated by the Omnibus
Agreement, and the execution and delivery of this Agreement is a condition
precedent to the respective obligations of certain designated parties to the
Omnibus Agreement to proceed with and consummate the transactions contemplated
thereby.
NOW, THEREFORE, in consideration of the foregoing, of the mutual
covenants and agreements herein contained and of other good and valuable
consideration, the receipt, adequacy and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS; ETC.
1.1 Definitions. Except as otherwise herein expressly provided, the
following terms and phrases shall have the meanings set forth below:
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"AFFILIATE" shall mean (i) in the case of an entity, any person who or
which, directly or indirectly, through one or more intermediaries, controls or
is controlled by, or is under common control with, any specified person or (ii)
in the case of an individual, such individual's spouse, children, grandchildren
or parents or a trust primarily for the benefit of any of the foregoing.
"AGREEMENT" shall mean this Voting Agreement, as originally executed
and as amended, modified, supplemented or restated from time to time, as the
context requires.
"BOARD" shall mean the Board of Directors of the Company.
"DIRECTOR" shall mean a person appointed or elected as a member of the
Board.
"EHG" shall mean the Estate of Xxxxxx X. Xxxxxx, late of New York, New
York.
"NEW LENDER" shall mean Xxxxxxx Partners, LLC, a limited liability
company organized and existing under the laws of the State of Delaware.
"PARK" shall mean Park Investment Partners, Inc., a corporation
organized and existing under the laws of the State of Delaware.
"PERSON" means any individual, corporation, association, limited
liability company, partnership, or any other entity.
"PUBLIC SALE" means any sale of Stock by a Stockholder to the public
(i) pursuant to a public offering registered under the Securities Act or (ii)
pursuant to the provisions of Rule 144 promulgated under the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"STOCKHOLDER" or "STOCKHOLDERS" shall mean the parties hereto (other
than the Company), their permitted successors and assigns and any person who is
a holder of Stock and is or is required to be a party hereto at the time of
reference thereto.
"TRANSFER" means to sell, transfer, assign, pledge, hypothecate or
otherwise dispose of, in any manner whatsoever.
1.2 Certain Other Defined Terms. The following terms are defined in the
Section of this Agreement set forth directly opposite such terms:
Term Section
---- -------
Class B Preferred Stock recitals
Common Stock recitals
Company recitals
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EHG Nominee 2.2(a)
Lender Nominees 2.2(a)
Loan Transaction recitals
Nominee 2.2(a)
Omnibus Agreement recitals
Park Nominee 2.2(c)
Preferred Stock recitals
Series B Common Stock recitals
Stock recitals
1.3 Article, Etc. References to an "ARTICLE" or a "SECTION" are, unless
otherwise specified, to one of the Articles or Sections of this Agreement.
ARTICLE II
ORGANIZATIONAL DOCUMENTS; ELECTION OF DIRECTORS; ETC.
2.1 Articles of Incorporation; By-Laws. From and after the date hereof,
each Stockholder shall vote all shares of Stock owned by such Stockholder at any
meeting of the stockholders of the Company or in any written consent executed in
lieu of such a meeting of stockholders of the Company and shall take all actions
necessary to insure that the Certificate of Incorporation and By-Laws of the
Company do not, at any time, conflict with the provisions of this Agreement and
shall take all necessary and required action to cause the Company to amend, or
amend and restate, the Certificate of Incorporation and By-Laws of the Company
as necessary to effectuate the purposes of this Agreement.
2.2 Election of Directors. Each Stockholder shall vote all shares of
Stock owned by such Stockholder at any regular or special meeting of the
stockholders of the Company at which vacancies on the Board are to be filled, or
in any written consent executed in lieu of such a meeting of stockholders and
shall take all actions necessary (excluding the exercise of any options,
warrants or rights held by such Stockholder) and shall use its reasonable best
efforts to cause the Directors nominated by it pursuant to this Agreement to
take all actions necessary (including the nomination for election as Directors
of the persons specified below), to ensure, to the extent legally possible, the
election to the Board of the following individuals:
(a) a number of individuals nominated by the New Lender that is equal
to the lowest whole number which would comprise a majority of the Board,
determined by adding (i) one (1), plus (ii) one-half of the total number of
persons comprising the full Board, and rounding the sum down to the nearest
whole number (the "LENDER NOMINEES");
(b) one individual nominated by EHG (the "EHG NOMINEE"); and
(c) one individual nominated by Park (the "PARK NOMINEE").
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The Lender Nominees, the EHG Nominee and the Park Nominee are sometimes
hereinafter referred to collectively as the "NOMINEES" and individually as a
"NOMINEE."
2.3 Replacement and Removal of Nominees. If, prior to his election to
the Board pursuant to Section 2.2, any Nominee shall be unable or unwilling to
serve as a Director of the Company, the Stockholder or Stockholders who
nominated any such Nominee shall be entitled to nominate a replacement within 30
days of learning of such fact, which replacement shall then be a Nominee for
purposes of Section 2.2.
ARTICLE III
MISCELLANEOUS PROVISIONS
3.1 Endorsement on Stock Certificates. Each and every certificate
evidencing Stock shall contain upon its face, or on the reverse side thereof,
the following legend until such time as the Stock represented thereby is no
longer subject to the provisions of this Agreement:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
PROVISIONS OF THAT CERTAIN VOTING AGREEMENT DATED AS OF OCTOBER 2,
1998, AS AMENDED FROM TIME TO TIME, AMONG THE COMPANY AND EACH OF THE
STOCKHOLDERS SPECIFIED THEREIN, COPIES OF WHICH ARE AVAILABLE AT THE
PRINCIPAL OFFICES OF THE COMPANY AT NO COST. A STATEMENT SUMMARIZING
THE VOTING POWERS, DESIGNATIONS, PREFERENCES, LIMITATIONS, RESTRICTIONS
AND RELATIVE RIGHTS OF THE VARIOUS CLASSES OF STOCK OR SERIES THEREOF
MAY BE OBTAINED BY THE STOCKHOLDERS OF THE COMPANY, WITHOUT CHARGE,
FROM THE PRINCIPAL OFFICES OF THE COMPANY."
The legend set forth above shall be removed from the certificates evidencing
shares of Stock upon the earlier of (i) the date on which any such shares of
Stock have been transferred in a Public Sale, or (ii) the date on which this
Agreement terminates in accordance with Section 3.3 hereof.
3.2 Transfers. Prior to Transferring any shares of Stock (other than in
a Public Sale) to any person, the transferring Stockholder shall cause the
prospective transferee to execute and deliver to the Company and the other
Stockholders a counterpart copy of this Agreement. Any Transfer or attempted
Transfer of any shares of Stock in violation of this or any other provisions of
this Agreement will be void, and the Company will not record such Transfer on
its books or treat any purported transferee of such shares of Stock to the owner
of such shares for any purpose.
3.3 Termination. This Agreement shall terminate upon the earlier to
occur of the
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following events:
(a) the voluntary agreement, in writing, of all of the
New Lender, EHG and Park; or
(b) the date on which the Company repays in full all
outstanding indebtedness and accrued interest issued
under the Omnibus Agreement.
3.4 Stock Subject to this Agreement.
(a) This Agreement shall apply to all Stock at any time owned
or acquired by the Stockholders, including, without limitation, (i) the Stock
held by the Stockholders on the date hereof, (ii) any Stock issued to any
Stockholder pursuant to such Stockholder's exercise of an option, warrant or
convertible or exchangeable security and (iii) any Stock otherwise purchased,
acquired or issued to any Stockholder.
(b) If, at any time, and from time to time, the Company shall
declare and pay a dividend upon any of the Stock, or shall validly issue shares
in lieu of, or in exchange for, or in addition to, any of the Stock without the
receipt of additional consideration therefor, then any such shares subsequently
issued with respect to the Stock then subject to this Agreement shall constitute
additional Stock subject to this Agreement.
3.5 Notices. Any and all notices or other communications provided for
herein shall be in writing and shall be considered duly given upon the earliest
to occur of (a) personal delivery, (b) two (2) days after being delivered to a
national recognized overnight delivery courier or service, (c) three (3) days
after being mailed by registered or certified mail, return receipt requested,
postage prepaid or (d) the delivering parties receipt of a written confirmation
of a facsimile transmission. All notices shall be addressed to the Company at
its principal office and to the Stockholders at their addresses, as shown on
Exhibit A attached hereto. Any party hereto may change his or its address by
giving notice to the other parties hereto as provided herein.
3.6 Pronouns and Headings. As used herein, all pronouns shall include
the masculine, feminine, neuter, singular and plural wherever the context and
facts require such construction. The descriptive headings in the sections of
this Agreement are inserted for convenience of reference only and shall not
control or affect the meaning or construction of any of the provisions hereof.
3.7 Severability. If any provision of this Agreement is held by a court
of competent jurisdiction to be invalid, illegal or unenforceable, such
provision shall be severed and the remaining provisions hereof shall be enforced
to the extent possible or modified in such a way as to make it enforceable, and
the invalidity, illegality or unenforceability thereof shall not affect the
validity, legality or enforceability of the remaining provisions of this
Agreement.
3.8 Modification Amendment. No modification or amendment of this
Agreement
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shall be valid unless the same shall be in writing executed by all of
the New Lender and EHG.
3.9 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without regard to the
conflict of laws provisions thereof.
3.10 Binding Effect; Complete Agreement. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors and assigns. This
Agreement constitutes the entire agreement among the parties hereto and
supersedes all prior agreements and understandings, oral or written, among the
parties hereto with respect to the subject matter hereof.
3.11 Specific Performance. The parties acknowledge that given the
nature of the obligations of the parties hereto that any non-breaching party
will be irreparably damaged by a breach of this Agreement. The parties hereto
therefore acknowledge and agree that any nonbreaching party hereto may seek
specific performance of the provisions hereof and that no party hereto may
assert adequacy of a remedy at law as a defense to an action for specific
performance hereunder.
3.12 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
3.13. Execution by Telefacsimile Transmission. Telefacsimile
transmissions of any executed original document and/or retransmission of any
executed telefacsimile transmission shall be deemed to be the same as the
delivery of an executed original. At the request of any party hereto, the other
parties hereto shall confirm telefacsimile transmissions by executing duplicate
original documents and delivering the same to the requesting party or parties.
[Rest of This Page Intentionally Left Blank.]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
XXXXXXX INTERNATIONAL, INC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------
Xxxxx X. Xxxxxxx
President/CEO
Telecopy: (000) 000-0000
PARK INVESTMENT PARTNERS, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
Title: Secretary Treasurer
/s/ Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx, Individually
XXXXXXX PARTNERS, LLC
By: /s/ Xxxxxx X. Xxxxx
--------------------------
Name: Xxxxxx X. Xxxxx
Title: Manager
THE ESTATE OF XXXXXX X. XXXXXX
By: /s/ June X. Xxxxxx
--------------------------
June X. Xxxxxx
Co-Executor
By: /s/ Xxxx X. Xxxxxxx, Xx.
--------------------------
Xxxx X. Xxxxxxx, Xx.
Co-Executor
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SIGNATURE PAGE VOTING AGREEMENT
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By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Xxxxxx X. Xxxxxx
Co-Executor
By: The United States Trust Company of
New York
By: /s/ Xxxxxx Xxxxx Xxxxxxxxxxx
--------------------------------
Name: Xxxxxx Xxxxx Xxxxxxxxxxx
Title: Vice President
FOUR PARTNERS
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Trustee of the Xxxxxx X.
Xxxxx 1991 Trust, a General Partner
/s/ Xxxxxx Xxxxxxx
--------------------------------
Xxxxxx Xxxxxxx, Individually
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SIGNATURE PAGE VOTING AGREEMENT
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EXHIBIT A
ADDRESS LIST
Xxxxxxx International, Ltd.
Xxx Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: President
Telecopy: (000) 000-0000
Park Investment Partners, Inc.
000 0xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
Xxxxxx X. Xxxxxx
000 0xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Xxxxxxx Partners, LLC
c/o Tisch Family Interests
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx, President
Telecopy: (000) 000-0000
The Estate of Xxxxxx X. Xxxxxx
c/o The United States Trust Company of New York
000 Xxxx 00xx Xxxxxx, #X-0
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxxxxx, Esq.
Telecopy: (000) 000-0000
Four Partners
c/o Tisch Family Interests
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx, President
Telecopy: (000) 000-0000
Xxxxxx Xxxxxxx
00000 Xxxxx Xxxx
Xxxxxxxx, XX 00000
Telecopy: (000) 000-0000
(c/o Xxxxxx X. Xxxxxxxxx)
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