STOCKHOLDER VOTING AGREEMENT
Exhibit
4.1
Execution
Version
THIS STOCKHOLDER VOTING
AGREEMENT (this “Agreement") is made this 12th
day of September, 2008, by and among Liberty Tire Services, LLC, a Delaware
limited liability company (“LTS”); Liberty Tire Services
of Ohio, LLC, a Delaware limited liability company and wholly owned subsidiary
of LTS (“Purchaser”);
XxxxxXxx Technologies, Inc., a Delaware corporation (“GTI”); XxxxxXxx Technologies
of Iowa, Inc., an Iowa corporation and wholly owned subsidiary of GTI (“GTIA”); XxxxxXxx Technologies
of Minnesota, Inc., a Minnesota corporation and wholly owned subsidiary of GTI
(“GTMN” and, together
with GTIA, “Sellers”);
and the stockholders of GTI listed on Schedule A to this
Agreement (collectively, the “Stockholders” and each,
individually, a “Stockholder”).
WHEREAS,
as of the date hereof, the Stockholders are the legal and beneficial owners of
record of shares of Common Stock of GTI as set forth on Schedule A attached
hereto (such shares, together with any shares of Common Stock or other voting or
equity securities of GTI hereafter acquired by any Stockholder prior to the
termination of this Agreement, being referred to herein collectively as the
“Shares”);
WHEREAS, pursuant to the Asset Purchase
Agreement dated as of the date hereof (the “Purchase Agreement”), by and
among LTS, Purchaser, GTI, and Sellers, Purchaser has agreed to acquire
substantially all of the assets related to or used in connection with Sellers’
businesses of tire collection, disposal, shredding, processing, recycling and
sale of used tires, including without limitation the production of tire derived
fuel chips, tire derived mulch, tire shreds, crumb rubber and other tire derived
feedstock, located primarily in Iowa and Minnesota, although they also conduct
business in Illinois, Indiana, Kansas, Michigan, Missouri, Nebraska, North
Dakota, South Dakota and Wisconsin (such assets, as more specifically defined in
the Purchase Agreement, the “Purchased
Assets”);
WHEREAS, as a condition to the
willingness of Purchaser to enter into the Purchase Agreement, Purchaser has
required that the Stockholders agree, and in order to induce the Purchaser to
enter into the Purchase Agreement, the Stockholders are willing to agree, during
the Term (as defined below), to vote in favor of the adoption of the Purchase
Agreement, the sale and purchase of the Purchased Assets and the transactions
contemplated by the Purchase Agreement and each other agreement contemplated
thereby (the “Contemplated
Transactions”) and to restrict the transfer or disposition of any of the
Shares; and
WHEREAS, capitalized terms used in this
Agreement without definition shall have such meanings as ascribed to them under
the Purchase Agreement.
NOW, THEREFORE, in consideration of the
foregoing and the mutual covenants and agreements contained herein, and for
other good and valuable consideration, the receipt of which is acknowledged by
each party hereto, and intending to be legally bound hereby, the parties hereby
agree, severally and not jointly, as follows:
Section
1. Voting of
Shares. Each Stockholder covenants and agrees that during the
period beginning on the date hereof and ending on the earlier to occur of (i)
the Effective Time and (ii) the termination of the Purchase Agreement in
accordance with its terms (such date, the “Expiration Date”), at any
regular, special or adjourned meeting of the stockholders of GTI, however called
(a “Stockholders’
Meeting”), and in any action by written consent of the stockholders of
GTI (a “Written
Consent”), such Stockholder will vote, or cause to be voted by proxy or
otherwise, all of its respective Shares (i) in favor of the adoption of the
Purchase Agreement (as the Purchase Agreement may be modified or amended from
time to time in a manner not adverse to the Stockholders) and the approval of
the Contemplated Transactions, and (ii) against any Acquisition Proposal and
against any other action or transaction that may reasonably be construed to make
the consummation of the Contemplated Transactions by Purchaser more difficult or
expensive. Prior to the Expiration Date, no Stockholder shall enter
into any agreement or understanding with any person or vote or give instructions
in any manner inconsistent with this Section 1.
Section
2. Transfer of
Shares. Each Stockholder covenants and agrees that during the
Term that such Stockholder will not directly or indirectly (i) sell, assign,
transfer (including by merger, interspousal disposition pursuant to a domestic
relations proceeding or otherwise by operation of law), pledge, encumber or
otherwise dispose of any of its Shares, (ii) deposit any of its Shares into a
voting trust or enter into a voting agreement or arrangement with respect to the
Shares or grant any proxy or power of attorney with respect thereto which is
inconsistent with this Agreement or (iii) enter into any contract, option or
other voluntary arrangement or undertaking with respect to the direct or
indirect sale, assignment, transfer (including by merger, interspousal
disposition pursuant to a domestic relations proceeding or otherwise by
operation of law) or other disposition of any Shares. In the event
any party to this Agreement dies prior to the Expiration Date, then this
Agreement shall be binding on the descendants, executors, administrators, heirs
and assigns of such party. Any action or attempted action in
violation of this Agreement shall be null and void.
Section
3. Representations and
Warranties of the Stockholders. Each Stockholder on its own
behalf hereby severally represents and warrants to Purchaser, solely with
respect to itself and its ownership of its Shares, but not with respect to any
other Stockholder, as follows:
(a) Ownership of
Shares. On the date hereof, and except as specifically set
forth on Schedule
A attached hereto, such Shares are owned of record, legally, beneficially and
exclusively by such Stockholder. Such Stockholder has sole
voting power, without restrictions, with respect to all of such
Shares. Such Stockholder does not beneficially own any shares of
capital stock of GTI other than the Shares.
(b) Power; Binding
Agreement. Such Stockholder has the legal capacity, power and
authority to enter into and perform all of its obligations under this Agreement.
This Agreement has been duly and validly executed and delivered by such
Stockholder and constitutes a valid and binding obligation of such Stockholder,
enforceable against such Stockholder in accordance with its terms.
(c) No
Encumbrances. As of the date hereof the Shares are, and at all
times during the Term the Shares will be, free and clear of any Security Rights or other
Encumbrances.
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Section
4. No
Solicitation. During the Term, each Stockholder agrees, in his
or her capacity as a stockholder of GTI, that he or she will not, nor will he or
she authorize or permit any of his or her agents and representatives to,
directly or indirectly, (a) initiate, solicit or encourage any inquiries or the
making of any Acquisition Proposal, (b) enter into any agreement with respect to
any Acquisition Proposal, or (c) participate in any discussions or negotiations
regarding, or furnish to any person any information with respect to, or take any
other action to facilitate any inquiries or the making of any proposal that
constitutes, or may reasonably be expected to lead to, any Acquisition
Proposal. Notwithstanding the foregoing, each Stockholder who serves
as an officer or director of GTI may take such actions as are allowed under the
provisions of Section 3.7 of the Purchase Agreement.
Section
5. Termination. The
term of this Agreement shall commence on the date as of which this agreement is
executed and shall continue in effect until the Expiration Date (the “Term”); provided, however, that at any time
from and after the date hereof this Agreement may be terminated by the written
agreement of the parties hereto, effective as of the date of such
writing.
Section
6. Specific
Performance. Each party expressly understands and agrees that
any breach of this Agreement would cause irreparable harm to the other parties
and that, in addition to any other remedy which such party might have, an
aggrieved party shall be entitled to injunctive relief for, and to prevent, any
such breach, without the necessity of posting any bond or other
security. The breaching party hereby agrees that should any aggrieved
party institute any action or proceeding for injunctive or similar equitable
relief to enforce these covenants, the breaching party waives and agrees not to
assert the claims or defenses that the aggrieved party has an adequate remedy at
law or that the aggrieved party will not suffer irreparable damage.
Section
7. Fiduciary
Duties. Each Stockholder is signing this Agreement solely in
such Stockholder’s capacity as an owner of its respective Shares, and nothing
herein shall prohibit, prevent or preclude such Stockholder from taking or not
taking any action in his capacity as an officer or director of GTI.
Section
8. Miscellaneous.
(a) All notices given or made in connection
with this Agreement shall be in writing. Delivery of written
notices shall be effective
upon receipt. All deliveries shall be made to the following
addresses:
if to LTS or
the Purchaser,
to:
Liberty
Tire Services, LLC
Xxxxxxxx
Xxxxx, Xxxxx 0000
000
Xxxxxxx Xxxxxx
Xxxxxxxxxx,
XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attn: Xxxxxxx
X. Xxxxxxx and General Counsel
E-mail: XXxxxxxx@XxxxxxxXxxx.xxx
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With a copy (which shall not constitute
notice) to:
K&L
Gates LLP
Xxxxx X.
Xxxxxx Building
000
Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx,
XX 00000
Attn: Xxxxx
X. Xxxxxx, Esq.
Telephone: 000-000-0000
Facsimile: 000-000-0000
E-mail: Xxxxx.Xxxxxx@xxxxxxx.xxx
if to GTI or
Sellers, to:
XxxxxXxx
Technologies, Inc.
0 Xxxxxxx
Xxxx, Xxxxxxxx X
Xxxxxxxxx,
XX 00000
Attn: Xxxxxxx
X. Xxxxx, CFO
Telephone: 000-000-0000
Facsimile: 000-000-0000
E-mail: Xxxxxxxx@xxx.xxx
With a copy (which shall not constitute
notice) to:
Xxxxx,
Xxxxxx-Xxxxx & Xxxxxxxxx, P.C.
Reservoir
Place
0000
Xxxxxxx Xxxx
Xxxxxxx,
XX 00000
Attn: Xxxx
Xxxxxx, Esq.
Telephone: 000-000-0000
Facsimile: 000-000-0000
E-mail: xxxxxxx@xxxx.xxx
If to the
Stockholders:
At the addresses set forth on Schedule A attached
hereto,
With a copy (which shall not constitute
notice) to:
XxxxxXxx
Technologies, Inc.
0 Xxxxxxx
Xxxx, Xxxxxxxx X
Xxxxxxxxx,
XX 00000
Attn: Xxxxxxx
X. Xxxxx, CFO
Telephone: 000-000-0000
Facsimile: 000-000-0000
E-mail: Xxxxxxxx@xxx.xxx
or, at such other address as any of the
parties shall have furnished in writing to the other parties
hereto.
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(b) This Agreement and the agreements
specifically referred to herein, or in the Purchase Agreement, supersede any and
all oral or written agreements or understandings heretofore made relating to the
subject matter hereof and constitute the entire agreement of the parties
relating to the subject matter hereof. This Agreement may not be
amended, modified or rescinded except by an instrument in writing signed by each
of the parties hereto.
(c) If any provision of this Agreement shall
be declared void or unenforceable by any judicial or administrative authority,
the validity of any other provision shall not be affected
thereby. The parties hereto further agree to replace such void or
unenforceable provision of this Agreement with a valid and enforceable provision
that will achieve, to the extent possible, the mutual economic, business and
other purposes of such void or unenforceable provision.
(d) This
Agreement shall be binding upon and inure to the benefit of the parties, their
respective successors and permitted assigns.
(e) This
Agreement shall be governed by and construed in accordance with the laws of the
State of Delaware, without regard to its conflict of laws
doctrines.
(f) The
parties shall cooperate in good faith to resolve any dispute that may arise
under this Agreement; provided, that if any party
believes such dispute cannot be resolved by mutual agreement, then such dispute
shall be resolved by arbitration in accordance with the Streamlined Arbitration
Rules and Procedures (the “Rules”) of the American Arbitration
Association. Any such arbitration shall be conducted in Wilmington,
Delaware or such other place as is mutually acceptable to the Stockholders and
the Purchaser by one arbitrator mutually acceptable to the parties involved in
such arbitration or, if such parties are unable to agree on an arbitrator, the
arbitrator shall be appointed in accordance with the rules of the American
Arbitration Association. The decision and award of any such
arbitrator (which may include specific performance and injunctive relief) shall
be made in writing, and shall be final and valid, nonappealable, binding upon
the parties involved in such arbitration, and enforceable by any such party in
any court of competent jurisdiction. Notwithstanding any provision of
this Agreement or the Rules to the contrary, no party will be eligible to
receive, and the arbitrator shall not have the authority to award, exemplary,
punitive, incidental, indirect or consequential damages, and the arbitrator
shall not have the authority to amend this Agreement. In the event
that any dispute regarding this Agreement is resolved by arbitration pursuant to
this Section 8(f), the prevailing party shall be entitled to recover from the
non-prevailing party (or parties) the fees, costs and expenses (including, but
not limited to, the reasonable fees and expenses of counsel) incurred by the
prevailing party in connection with such action.
(g) Notwithstanding
the provisions of, and in addition to the rights set forth in, Section 8(f),
in the event of a breach of the
provisions of this
Agreement by a party to this Agreement during the Term, any non-breaching party
shall have the right to specific performance and injunctive relief, it being
acknowledged and agreed that money damages will not provide an adequate
remedy.
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(h) In the event litigation is maintained by
a party to this Agreement against any other party to enforce an arbitration
award rendered under
Section 8(f) or to seek specific performance of injunctive relief under Section
8(g), then the party prevailing in such litigation shall be entitled to recover
from the non-prevailing party reasonable attorneys' fees and costs of
suit.
(i) No
remedy conferred by any of the specific provisions of this Agreement is intended
to be exclusive of any other remedy, and each and every remedy will be
cumulative and will be in addition to every other remedy given here or now or
hereafter existing at law or in equity or by statute or otherwise. The election
of any one or more remedies will not constitute a waiver of the right to pursue
other available remedies.
(j) This Agreement may be executed in
several counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(k) No
Stockholder shall have any liability for any misrepresentation or breach by any
other Stockholder hereunder.
[Signature
Page to follow]
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IN WITNESS WHEREOF, the parties have
caused this Agreement to be duly executed under seal as of the date first
written above.
LIBERTY
TIRE SERVICES, LLC
BY: /s/Xxxxxxx X. Xxxxxxx
NAME: Xxxxxxx
X. Xxxxxxx
TITLE: CEO
LIBERTY
TIRE SERVICES OF OHIO, LLC
BY: /s/Xxxxxxx X. Xxxxxxx
NAME: Xxxxxxx
X. Xxxxxxx
TITLE: CEO
XXXXXXXX
TECHNOLOGIES, INC.
BY: /s/Xxxx Xxxxxx
NAME: Xxxx
Xxxxxx
TITLE: CEO
XXXXXXXX
TECHNOLOGIES OF
MINNESOTA,
INC.
BY: /s/Xxxx Xxxxxx
NAME: Xxxx
Xxxxxx
TITLE: CEO
XXXXXXXX
TECHNOLOGIES OF
IOWA,
INC.
BY: /s/Xxxx Xxxxxx
NAME: Xxxx
Xxxxxx
TITLE: CEO
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STOCKHOLDERS:
/s/Xxxxxxx X. Xxxxxxx
Xxxxxxx
X. Xxxxxxx
/s/Xxxx Xxxxxx
Xxxx
Xxxxxx
/s/Xxxxx Xxxx
Xx. Xxxxx
Xxxx
/s/Xxx X. Xxxx
Xxx X.
Xxxx
/s/Xxxxxxxx
XxXxxxxxxxxx
Xxxxxxxx
XxXxxxxxxxxx
/s/Xxxxxxx X. Xxxxx
Xxxxxxx
X. Xxxxx
8
SCHEDULE
A
TO
|
Stockholder
|
Shares
Held
|
|
|
Xxxxxxx
X. Xxxxxxx
c/x
Xxxxxxxx Technologies, Inc.
0
Xxxxxxx Xxxx, Xxxxxxxx X
Xxxxxxxxx,
XX 00000
|
1,268,783
shares of Common Stock
|
|
|
Xxxx
Xxxxxx
c/x
Xxxxxxxx Technologies, Inc.
0
Xxxxxxx Xxxx, Xxxxxxxx X
Xxxxxxxxx,
XX 00000
|
635,052
shares of Common Stock
|
|
|
Xx.
Xxxxx Xxxx
c/x
Xxxxxxxx Technologies, Inc.
0
Xxxxxxx Xxxx, Xxxxxxxx X
Xxxxxxxxx,
XX 00000
|
4,348,431
shares of Common Stock
|
|
|
Xxx
X. Xxxx
c/x
Xxxxxxxx Technologies, Inc.
0
Xxxxxxx Xxxx, Xxxxxxxx X
Xxxxxxxxx,
XX 00000
|
275,678
shares of Common Stock
|
|
|
Xxxxxxxx
XxXxxxxxxxxx
c/x
Xxxxxxxx Technologies, Inc.
0
Xxxxxxx Xxxx, Xxxxxxxx X
Xxxxxxxxx,
XX 00000
|
397,454
shares of Common Stock
|
|
|
Xxxxxxx
X. Xxxxx
c/x
Xxxxxxxx Technologies, Inc.
0
Xxxxxxx Xxxx, Xxxxxxxx X
Xxxxxxxxx,
XX 00000
|
387,828
shares of Common Stock
|
9
