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EXHIBIT 2
VOTING AGREEMENT
This Voting Agreement is made as of the 20 th day of January, 1998 by and
between Xxxxxxx X. Xxxxxx ("Xxxxxx") and Xxxx X. Xxxxxxx, Xxxx X. Xxxxx, Xxxxx
X. Xxxxxxxxx, Xxxxx X. Xxxxxx, Xxxxx X. Xxxxxxxxx, Xxxxx X. Xxxxxxxx, and
Xxxxxx X. Xxxxxxxx (collectively referred to as "Other Shareholders").
RECITALS
WHEREAS, each of Xxxxxx and the Other Shareholders own now, or have the
right to acquire in the future, shares of Class A Common Stock or shares of
Class B Common Stock of Xxxxxx Industrial Group, Inc., a Georgia corporation
("Corporation").
WHEREAS, the parties desire to enter into an agreement with respect to
voting the shares of Common Stock of the Other Shareholders.
AGREEMENTS
NOW THEREFORE, in consideration of the mutual promises and agreements set
forth herein, the adequacy of which are hereby acknowledged, the parties agree
as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall have
the meaning set forth below:
"Class A Common Stock" means the shares of Class A Common Stock, par value
$0.01 per share, of the Corporation.
"Class B Common Stock" means the shares of Class B Common Stock, par value
$0.01 per share, of the Corporation.
"Common Stock" means either the Class A Common Stock or the Class B Common
Stock of the Corporation.
"Common Stock Equivalents" means any security or obligation which is by
its terms convertible into shares of Common Stock, including without
limitation, any option, warrant, or other subscription or purchase right with
respect to Class A Common Stock or Class B Common Stock.
"Effective Time" means the effective date of this Agreement as noted
above.
"Person" means any individual, corporation, partnership, limited liability
company, firm, joint venture, association, joint stock company, trust,
unincorporated organization, governmental body or other entity.
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"Shares" mean, with respect to each party, all shares, whether now owned
or hereafter acquired, of Class A Common Stock or Class B Common Stock owned by
such party, including shares of Common Stock which are issued upon conversion,
exercise or exchange of all Common Stock Equivalents.
"Employment Agreement" means that certain Employment Agreement between
Xxxxxx and the Corporation effective as of January 20, 1998.
2. EFFECTIVE DATES; TERM. This Agreement shall become effective at the
Effective Time and shall remain in effect until the Proxy Termination Date.
3. IRREVOCABLE PROXY.
3.1 GRANT OF PROXY. The Other Shareholders and each of them hereby
grant to and appoint Xxxxxx as their irrevocable proxy and attorney-in-fact
(with full power of substitution) to vote and/or act by written consent with
respect to all of the Shares owned by the Other Shareholders (whether now owned
or hereafter acquired) with regard to all matters to be voted upon by
stockholders of the Corporation (including the vote for directors of the
Corporation). The proxy herein granted to Xxxxxx by each of the Other
Shareholders is coupled with an interest and shall be irrevocable until the
Proxy Termination Date.
3.2 TERMINATION OF PROXY. The proxy granted to Xxxxxx pursuant to
Section 3.1 shall terminate and be of no further force or effect upon the first
to occur of (i) ten (10) years after the Effective Time; (ii) Xxxxxx'x death or
Disability (as defined in the Employment Agreement); (iii) in the event Xxxxxx
terminates his employment with the Corporation (other than a Constructive
Termination as defined in the Employment Agreement); or (iv) in the event of
Xxxxxx'x termination of employment by the Corporation for Cause (as defined in
the Employment Agreement). The date of the occurrence of any such event
described in clauses (i) through (iv) being referred to herein as the "Proxy
Termination Date".
4. MISCELLANEOUS.
4.1 WAIVER OF COMPLIANCE; CONSENTS. Any failure of any party to
comply with any obligation, covenant, agreement or condition herein may be
waived by the other party only by written instrument signed by the party
granting such waiver, but such waiver or failure to insist upon strict
compliance with such obligation, covenant, agreement or condition shall not
operate as a waiver of or estoppel with respect to, any subsequent or other
failure. Whenever this Agreement requires or permits consent by or on behalf
of any party hereto, such consent shall be given in writing in a manner
consistent with the requirementsfor waiver of compliance as set forth in this
section.
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4.2 NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given when given in person, by
facsimile, or telegram, or on the next business day when sent by overnight
courier or on the second succeeding business day when sent by registered or
certified mail (postage prepaid, return receipt requested,) to the respective
parties at their last known mailing address.
4.3 ASSIGNMENT. This Agreement and all provisions hereof shall be binding
upon and inure to the benefit of the parties hereto and the respective
successors and assigns. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto without the prior consent of the other parties. This Agreement is not
intended to confer upon any other person except the parties hereto, any rights
or remedies hereunder. This Agreement shall be binding upon the transferee of
any Shares transferred in any manner by any of the Other Shareholders.
4.4 GOVERNING LAWS. This Agreement shall be governed by the laws of the
State of Delaware, without giving effect to the principles of conflict of laws
thereof or of any other jurisdiction.
4.5 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
4.6 HEADINGS. The Article and Section headings contained in this
Agreement are solely for the purpose of reference, and are not part of the
agreement of the parties and shall not in any way affect the meaning or
interpretation of this Agreement.
4.7 ENTIRE AGREEMENT. This Agreement and the documents or instruments
referred to herein embodies the entire Agreement and understanding of the
parties hereto in respect to the subject matter contained herein. There are no
restrictions, promises, representations, warranties, covenants, or other
undertakings, other than those expressly set forth or referred to herein. This
Agreement supersedes all prior agreements and the undertakings between the
parties with respect to such subject matter hereof.
4.8 SPECIFIC PERFORMANCE. The parties hereto intend that each of the
parties have the right to seek damages or specific performance in the event
that any other party hereto fails to perform such party's obligations
hereunder. Therefore, if any party shall institute any action or proceeding to
enforce the provisions hereof, any party against whom such action or proceeding
is brought hereby waives any claim or defense therein that the complaining
party has an adequate remedy at law.
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4.9 FURTHER ASSURANCES. Each of the parties shall execute such
instruments and take such action as may be reasonably required or desirable to
carry out the provisions hereof and the transactions contemplated hereby.
EXECUTION
This Voting Agreement is executed as of the date noted above.
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxx Xxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
/s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx
/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
/s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx