POST-MERGER VOTING AGREEMENT
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VOTING AGREEMENT dated as of August 18, 1999 (the "Agreement") by and among
MS Acquisition Limited, a Texas limited partnership, (the "Nominating
Stockholder") Xxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxx, Xxxx X. Xxxxxx, Xxxxxxx X.
Xxxx (together with the Nominating Stockholder, the "Richmont Stockholders"),
Monroe & Company, LLC, a Delaware limited liability company and JLM Management
Company, LLC, a Delaware limited liability company (together with Monroe &
Company, LLC, "Monroe"). The Richmont Stockholders and Monroe collectively shall
be referred to herein as the "Stockholders."
WHEREAS, it is contemplated that Richmont Marketing Specialists Inc., a
Delaware corporation ("Richmont"), will merge with and into Xxxxxxx American
Corporation, a Delaware corporation ("Xxxxxxx") pursuant to an Agreement and
Plan of Merger dated as of the date hereof (the "Merger Agreement," and such
merger, the "Merger");
WHEREAS, the Richmont Stockholders own of record all of the issued and
outstanding shares of common stock, par value $.01 per share, of Richmont, which
in connection with the Merger will be converted into an aggregate of up to
6,705,551 shares of common stock, par value $.01 per share, of Xxxxxxx ("Xxxxxxx
Common Stock");
WHEREAS, Monroe has the right to vote an aggregate of 853,754 shares of
Xxxxxxx Common Stock and 223,800 shares of restricted Xxxxxxx Common Stock;
WHEREAS, the execution and delivery of this Agreement is a condition to the
consummation of the Merger.
NOW, THEREFORE, the parties hereto agree as follows:
1. Voting Agreement. Following the consummation of the Merger, at any
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time that nominees for the election to the Board of Directors of Xxxxxxx are
submitted to the stockholders of Xxxxxxx, or a proposal to remove any incumbent
member of the Board of Directors of Xxxxxxx is submitted to such stockholders,
the parties hereto agree to vote, or cause to be voted, all Voting Securities
(defined below) then held by such party, whether beneficially or of record, or
any Voting Securities over which such party exercises voting control, in favor
of up to five nominees designated in writing by the Nominating Stockholders.
For the purpose of this agreement, "Voting Securities" shall mean any and all
shares of capital stock of Xxxxxxx, of any class or series, which shall have the
right at any time to vote in the election of Xxxxxxx'x directors, including
without limitation shares of Xxxxxxx Common Stock.
2. Designation of Nominees. The Nominating Stockholder hereby designates
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the following individuals as nominees for election to the Board of Directors of
Xxxxxxx: Xxxx X. Xxxxxx, Xxxx X. Xxxxxx, Xxxxxxx X. Xxxx, Xxxxxx X. Xxxxxxxx and
Xxxxxxx X. Xxxxxxxx. In the event that any of the foregoing at any time are
unable to serve out their terms, resign
from the Board of Directors of Xxxxxxx or decline to be nominated for election
or reelection, then the Nominating Stockholders shall have the right to
designate in writing a replacement nominee; provided, however, that such
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replacement nominee shall be reasonably satisfactory to Monroe.
3. Representations and Warranties of the Stockholders. As of the date
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hereof, each Stockholder represents and warrants to the other Stockholders as
follows:
(a) Ownership of Securities. The Stockholder is the record and
beneficial owner of, or exercises voting control of, the number of shares of
Voting Securities of Xxxxxxx set forth on the signature page to this Agreement
(the "Existing Securities"). The Holder has sole voting power and sole power to
issue instructions with respect to the voting of the Existing Securities, sole
power of disposition and the sole power of exercise or conversion, in each case
with respect to all of the Existing Securities. As of the date hereof, the
Stockholder will have sole voting power and sole power to issue instructions
with respect to the voting of all of the Existing Securities, sole power of
disposition and the sole power of exercise or conversion, in each case with
respect to all of the Existing Securities.
(b) Power; Binding Agreement. The Stockholder has full power and
authority to enter into and perform all of the Stockholder's obligations under
this Agreement. If Stockholder is an entity, the execution by Stockholder of
this Agreement and the performance of its obligations hereunder have been duly
authorized by all necessary corporate or partnership action on the part of
Stockholder and no other action on the part of Stockholder is required in
connection therewith. This Agreement has been duly and validly executed and
delivered by the Stockholder and constitutes a valid and binding agreement of
the Stockholder, enforceable against the Stockholder in accordance with its
terms.
(c) No Conflicts. No filing with, and no permit, authorization,
consent or approval of, any state or federal public body or authority is
necessary for the execution of this Agreement by the Stockholder and the
consummation by the Stockholder of the transactions contemplated hereby, other
than filings which may be required pursuant to the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder, and
neither the execution and delivery of this Agreement by the Stockholder nor the
consummation by the Stockholder of the transactions contemplated hereby nor
compliance by the Stockholder with any of the provisions hereof shall conflict
with or result in any breach of any applicable organizational documents of
Xxxxxxx applicable to the Stockholder or, if applicable, any organizational
documents of the Stockholder (including without limitation any charter documents
or partnership agreement), result in a violation or breach of, or constitute
(with or without notice or lapse of time or both) a default (or give rise to any
third-party right of termination, cancellation, material modification or
acceleration) under any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation of any kind to which
the Stockholder is a party or by which the Stockholder's properties or assets
may
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be bound or violate any order, writ, injunction, decree, judgment, order,
statute, rule or regulation applicable to the Stockholder or any of the
Stockholder's properties or assets.
4. Assignment; Benefits. This Agreement may not be assigned by any party
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hereto without the prior written consent of each of the other parties. This
Agreement shall be binding upon, and shall inure to the benefit of, each of the
signatories hereto and their respective successors and permitted assigns.
5. Notices. Any notice required to be given hereunder shall be in
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writing and shall be sent by facsimile transmission (confirmed by any of the
methods that follow), courier service (with proof of service), hand delivery or
certified or registered mail (return receipt requested and first-class postage
prepaid) to the address of such party set forth on the signature pages hereto or
to such other address as any party shall specify by written notice so given, and
such notice shall be deemed to have been delivered as of the date so delivered.
6. Specific Performance. The parties hereto agree that irreparable harm
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would occur in the event that any of the provisions of this Agreement were not
performed in accordance with its specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any court of the United States or any state
thereof having jurisdiction, this being in addition to any other remedy to which
they are entitled at law or in equity.
7. Amendment. This Agreement may not be amended or modified, except by an
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instrument in writing signed by or on behalf of each of the parties hereto. This
Agreement may not be waived by any party hereto, except by an instrument in
writing signed by or on behalf of the party granting such waiver.
8. Governing Law. This Agreement shall be governed by, construed and
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enforced in accordance with the laws of the State of Delaware, without regard to
its rules regarding conflict of laws.
9. Counterparts. This Agreement may be executed in counterparts, each of
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which shall be deemed an original, but all of which together shall constitute
one and the same agreement.
10. Termination. This Agreement shall commence on the date hereof and
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shall terminate upon the earliest to occur of: (i) the date on which the
Nominating Stockholder and Messrs. Xxxxxxxx, Xxxxxx and Xxxxxx cease to own in
the aggregate at least 35% of the total outstanding shares of Voting Securities
of Xxxxxxx, or (ii) the date on which the Stockholders cease to own, or have the
right to exercise voting control over, shares of Voting Securities of Xxxxxxx
representing more than 50% of the total voting power of all outstanding Voting
Securities of Xxxxxxx.
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[VOTING AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, this Agreement has been executed by or on behalf of
each of the parties hereto, all as of the date first above written above.
MS ACQUISITION LIMITED
By:_________________________________________
Name:
Title:
Existing Securities:
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Class:___________________________________
Number of Shares:________________________
Address:
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_________________________________________
_________________________________________
_________________________________________
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[VOTING AGREEMENT SIGNATURE PAGE]
__________________________________________
Xxxxxx X. Xxxxxxxx
Existing Securities:
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Class:____________________________________
Number of Shares:_________________________
Address:
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__________________________________________
__________________________________________
__________________________________________
__________________________________________
Xxxxx X. Xxxxxx
Existing Securities:
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Class:____________________________________
Number of Shares:_________________________
Address:
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__________________________________________
__________________________________________
__________________________________________
__________________________________________
Xxxx X. Xxxxxx
Existing Securities:
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Class:____________________________________
Number of Shares:_________________________
Address:
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__________________________________________
__________________________________________
__________________________________________
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[VOTING AGREEMENT SIGNATURE PAGE]
__________________________________________
Xxxxxxx X. Xxxx
Existing Securities:
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Class:____________________________________
Number of Shares:_________________________
Address:
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__________________________________________
__________________________________________
__________________________________________
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[VOTING AGREEMENT SIGNATURE PAGE]
MONROE & COMPANY, LLC
By:_______________________________________
Name:
Title:
Existing Securities:
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Class:____________________________________
Number of Shares:_________________________
Address:
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__________________________________________
__________________________________________
__________________________________________
JLM MANAGEMENT COMPANY, LLC
By:_________________________________________
Name:
Title:
Existing Securities:
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Class:____________________________________
Number of Shares:_________________________
Address:
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__________________________________________
__________________________________________
__________________________________________
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