EXHIBIT 99.1
Execution Copy
VOTING AND SUPPORT AGREEMENT
THIS VOTING AND SUPPORT AGREEMENT (this "AGREEMENT") is made as of October
18, 2005, by and between Hoshizaki America, Inc., a Georgia corporation
("PARENT") and each of the signatories hereto (each, a "SHAREHOLDER").
WHEREAS, Parent has entered into an Agreement and Plan of Merger, of even
date herewith (as the same may be amended or supplemented, the "MERGER
AGREEMENT"; capitalized terms used but not defined herein shall have the
meanings set forth in the Merger Agreement), pursuant to which Parent will
directly acquire all of the capital stock of Lancer Corporation (the "COMPANY")
through the merger of a designee of Parent to be formed as a corporation under
the laws of the State of Texas with and into the Company; and
WHEREAS, each Shareholder owns capital stock in the Company and desires to
enter into this Agreement pursuant to which he, she or it agrees, among other
things, to vote all of the Subject Shares (as defined in Section 1(b), below)
held by such Shareholder in favor of the transactions contemplated by the Merger
Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the promises,
representations, warranties and agreements contained herein, and intending to be
legally bound hereby, the parties agree as follows:
1. Representations and Warranties of Shareholder. Each Shareholder hereby
represents and warrants to Parent as of the date hereof, as follows:
(a) Authority. Such Shareholder has all requisite power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly executed and delivered by such
Shareholder and constitutes a valid and binding obligation of such Shareholder
in accordance with its terms. Except as may be required under the HSR Act,
federal securities laws or the rules of the National Association of Securities
Dealers, Inc., the execution and delivery of this Agreement does not and
compliance with the terms hereof will not (i) conflict with, result in any
violation of, or constitute (with or without notice or lapse of time or both) a
default under, any provision of any material trust agreement, loan or credit
agreement, bond, note, mortgage, indenture, lease or other contract or agreement
applicable to the Subject Shares held by such Shareholder, (ii) require any
filing with, or permit, authorization, consent or approval of, any federal,
state or local government or any court, tribunal, administrative agency or
commission or other governmental or regulatory authority or agency, domestic or
foreign, or (iii) violate any judgment, order, writ, injunction, decree, law,
statute, rule or regulation applicable to the Subject Shares held by such
Shareholder.
(b) The Subject Shares. Such Shareholder is the record or beneficial
owner of, and has good and marketable title to, the number of shares of Company
Common Stock set forth opposite his, her or its name on the signature page
hereto (such shares of Company Common Stock, together with any other shares of
capital stock of the Company acquired by the Shareholder after the date hereof
and during the term of this Agreement, by purchase, exercise of stock options or
otherwise, collectively referred to herein as the "SUBJECT Shares"), free and
clear of any liens or other encumbrances whatsoever. Such Shareholder does not
own, of record or beneficially, any shares of Company Stock other than the
Subject Shares held by such Shareholder; and, such Shareholder does not have any
voting rights with respect to any shares of Company Stock other than the Subject
Shares held by such Shareholder, pursuant to any voting agreement or otherwise.
As of the date hereof and for so long as this Agreement remains in effect,
except for this Agreement or as otherwise permitted by this Agreement, such
Shareholder has full legal power, authority and right to vote all of the Subject
Shares held by such Shareholder in favor of the approval and authorization of
the Merger, the Merger Agreement and the other transactions contemplated thereby
(collectively, the "PROPOSED TRANSACTION") without the consent or approval of,
or any other action on the part of, any other person or entity. Without limiting
the generality of the foregoing, such Shareholder has not entered into any
voting agreement (other than this Agreement) with any person or entity with
respect to any of the Subject Shares held by such Shareholder,
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granted any person or entity any proxy (revocable or irrevocable) or other power
of attorney with respect to any of the Subject Shares held by such Shareholder,
deposited any of the Subject Shares held by such Shareholder in a voting trust
or entered into any arrangement or agreement with any person or entity limiting
or affecting his, her or its legal power, authority or right to vote the Subject
Shares held by such Shareholder on any matter.
2. Voting of Shares; Proxy.
(a) Subject to the provisions of Section 2(b) and 10 below, and
without in any way limiting any Shareholder's right to vote the Subject Shares
held by such Shareholder in his, her or its sole discretion on any other matters
that may be submitted to a Shareholder vote, consent or other approval
(including by written consent) in a manner that is not inconsistent with such
Shareholder's obligations under this Agreement, each Shareholder hereby
irrevocably and unconditionally agrees that, until the earlier of (y) the
Effective Time or (z) the date on which the Merger Agreement is terminated (the
earlier thereof being referred to as the "EXPIRATION DATE"), at any meeting of
the shareholders of the Company called to vote upon the Merger, its approval or
any rescission or withdrawal of such approval, or at any adjournment thereof, or
in any other circumstances upon which a vote, consent or other approval
(including written consent) with respect to the Merger and the Merger Agreement
is sought, each Shareholder shall vote (or cause to be voted) the Subject Shares
held by such Shareholder:
(i) in favor of the Merger, the approval and adoption by the
Company of the Merger Agreement and approval of the other transactions
contemplated by the Merger Agreement; and
(ii) against (A) any Acquisition Transaction other than the
Proposed Transaction (a "COMPETITIVE PROPOSAL"), (B) any change in the
capital structure of the Company and (C) any other action that may
reasonably be expected to impede, interfere with, delay, postpone or
attempt to discourage the consummation of the transactions contemplated by
the Merger Agreement or result in a breach of any of the covenants,
representations, warranties or other obligations or agreements of the
Company under the Merger Agreement, which would materially and adversely
affect the Company or Parent or their respective abilities to consummate
the transactions contemplated by the Merger Agreement.
(b) By executing this Agreement, each Shareholder, in furtherance of
the transactions contemplated hereby and by the Merger Agreement, and in order
to secure the performance by such Shareholder of his, her or its duties under
this Agreement, hereby irrevocably appoints Xxxx XxXxxxxxxx, the attorney, agent
and proxy for the undersigned and in the name, place and stead of the
undersigned, in respect of any of the matters set forth in clauses (i) and (ii)
of Section 2 of this Agreement, to vote or, if applicable, to give written
consent, in accordance with the provisions of said Section 2 and otherwise act
(consistent with the terms of this Agreement) with respect to all the Subject
Shares owned by each Shareholder, as set forth on the signature page to this
Agreement, which each Shareholder is or may be entitled to vote at any meeting
of the Company held after the date hereof, whether annual or special and whether
or not an adjourned meeting, or, if applicable, to give written consent with
respect thereto. This proxy is coupled with an interest, shall be irrevocable
and binding on any successor in interest of each Shareholder and shall not be
terminated by operation of law upon the occurrence of any event, including
without limitation, the death or incapacity of any Shareholder. The proxy set
forth in this Section 2(b) shall operate to revoke any prior proxy as to the
Subject Shares heretofore granted by the undersigned. This proxy shall terminate
on the Expiration Date. This proxy has been executed in accordance with Section
2.29(c) of the TBCA.
3. Covenants of the Shareholder. Each Shareholder covenants and agrees for
the benefit of Parent that, until the Expiration Date, he will:
(a) subject to the provisions of Section 6 hereof, not sell,
transfer (including by testamentary succession or otherwise by operation of
law), pledge, hypothecate, encumber, assign, tender or otherwise dispose of, or
enter into any contract, option or other arrangement or understanding
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with respect to the sale, transfer, pledge, hypothecation, encumbrance,
assignment, tender or other disposition of, any of the Subject Shares held by
such Shareholder or any right, title or interest therein;
(b) other than as expressly contemplated by this Agreement, not
grant any powers of attorney or proxies or consents in respect of any of the
Subject Shares held by such Shareholder, deposit any of the Subject Shares held
by such Shareholder into a voting trust, enter into a voting agreement with
respect to any of the Subject Shares held by such Shareholder or otherwise
restrict his, her or its ability freely to exercise all voting rights with
respect to the Subject Shares held by such Shareholder, or commit any other act
that could restrict or otherwise affect his, her or its legal power, authority
and right to vote the Subject Shares held by such Shareholder; and
(c) not (i) solicit, initiate or encourage any inquiries or
proposals that constitute, or could reasonably be expected to lead to, a
Competitive Proposal, (ii) engage in negotiations or discussions concerning, or
provide any non-public information to any person or entity relating to a
Competitive Proposal, or (iii) enter into a definitive agreement relating to a
Competitive Proposal. Each Shareholder shall immediately cease and cause to be
terminated any existing activities, including discussions or negotiations with
any parties, conducted heretofore with respect to any of the foregoing and will
take reasonable steps to inform his, her or its agents and representatives of
the obligations undertaken in this Section 3(c).
4. Covenants of Parent. Parent covenants and agrees for the benefit of
each Shareholder that (a) immediately upon execution of this Agreement, Parent
shall enter into the Merger Agreement, and (b) until the Expiration Date, Parent
shall use reasonable efforts to take, or cause to be taken, such action, and do,
or cause to be done, such things reasonably necessary or advisable to consummate
and make effective the transactions contemplated by the Merger Agreement,
consistent with the terms and conditions of such agreement; provided however,
that nothing in this Section 4 is intended or shall be construed, to limit or in
any way restrict Parent's right or ability to exercise any of its rights under
the Merger Agreement.
5. Certain Events. In the event of any stock split, stock dividend,
merger, reorganization, recapitalization or other change in the capital
structure of the Company affecting the Company Stock, or the acquisition of
additional shares of Company Stock by each Shareholder, the number of Subject
Shares held by such Shareholder shall be adjusted appropriately and this
Agreement and the obligations hereunder shall attach to any additional shares of
Company Stock of the Company issued to or acquired by such Shareholder.
6. Assignment. Each Shareholder agrees that this Agreement and the
obligations hereunder shall attach to the Subject Shares and shall be binding
upon any person or entity to which legal or beneficial ownership of or the right
and ability to vote the Subject Shares shall pass, whether by operation of law
or otherwise, including such Shareholder's successors. Neither this Agreement
nor any of the rights, interests or obligations hereunder shall be assigned by
any Shareholder, on the one hand, without the prior written consent of Parent
nor by Parent, on the other hand, without the prior written consent of such
Shareholder, except that each Shareholder and Parent may assign, in its sole
discretion, any or all of its rights, interests and obligations hereunder to any
direct or indirect wholly-owned subsidiary, affiliate or immediate family member
of such party, including any trust for the benefit of any immediate family
member of such party, or any third party purchaser of the Subject Shares;
provided that the transferee expressly agrees to be bound by the provisions
hereof. Subject to the preceding sentence, this Agreement will be binding upon,
inure to the benefit of and be enforceable by the parties and their respective
successors and assigns.
7. General Provisions.
(a) Amendments. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
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(b) Notice. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed given if
delivered personally or sent by overnight courier (providing proof of delivery)
to Parent in accordance with Section 9.8 of the Merger Agreement and to each
Shareholder at his, her or its address set forth on the Company's stock ledger
(or at such address for a party as shall be specified by like notice).
(c) Interpretation. When a reference is made in this Agreement to a
Section, Annex or Appendix, such reference shall be to a Section of or Annex or
Appendix to this Agreement unless otherwise indicated. 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. Wherever the words "include, or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation."
(d) Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more of the counterparts have been signed by
each of the parties and delivered to the other party.
(e) Entire Agreement; No Third Party Beneficiaries. This Agreement
(i) constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof and (ii) is not intended to confer upon any person other
than the parties hereto any rights or remedies hereunder.
(f) Governing Law. This Agreement shall be governed by, and
construed in accordance with the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
law thereof.
8. Enforcement. The parties agree that irreparable damage would occur in
the event that any of the provisions of this Agreement (including, but not
limited to, the provisions of Section 2 of this Agreement) were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to specific performance
and injunctive relief to prevent any threatened breach of this Agreement. The
parties hereto expressly agree that in any action arising from of any breach of
this Agreement, the harmed party shall first seek specific performance and
injunctive relief to prevent such breach; provided, however, that in the event
no specific performance or injunctive relief is available or if such specific
performance or injunctive relief is insufficient to remedy such breach, then the
harmed party may seek any other remedy to which it is entitled at law or in
equity.
9. Severability. In the event that any provisions of this Agreement or the
application thereof, becomes or is declared by a court of competent jurisdiction
to be illegal, void or unenforceable, the remainder of this Agreement shall
continue in full force and effect and the application of such provision to other
persons or circumstances will be interpreted so as to effect the intent of the
parties hereto. The parties further agree to replace such void or unenforceable
provision of this Agreement with a valid and enforceable provision that will
achieve, to the fullest extent possible, the original intent of the parties.
10. Fiduciary Duties. Each Shareholder is signing this Agreement solely in
such Shareholder's capacity as an owner of his, her or its respective Subject
Shares, and nothing in this Agreement shall prohibit, prevent or preclude such
Shareholder from taking or not taking any action in his, her or its capacity as
an officer of director of the Company, to the extent permitted by the Merger
Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above.
PARENT:
HOSHIZAKI AMERICA, INC.
By: /s/ Youki Suzuki
--------------------------------------
Youki Suzuki
President and Chief Executive Officer
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SHAREHOLDER SUBJECT SHARES
----------- ----------------------
Shares of Common Stock Options to Purchase Shares of
Held by Shareholder Common Stock Held by Shareholder
/s/ Xxxxxx X. Xxxxxxxxx 1,328,633 37,500
---------------------------
Xxxxxx X. Xxxxxxxxx
/s/ Xxxxxx X. Xxxxxxxxx 1,214,126 37,500
---------------------------
Xxxxxx X. Xxxxxxxxx
/s/ Xxxxxx X. Xxxxxxx 332,000 10,000
---------------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx 174,200 25,450
---------------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxxx, Xx. 570,780 10,000
---------------------------
Xxxxx X. Xxxxxxxx, Xx.
/s/ Xxxxxxxx X. Xxxx, Xx. 9,180 20,450
---------------------------
Xxxxxxxx X. Xxxx, Xx.
/s/ Xxxxxxx X. Xxxxxxx 14,180 20,450
---------------------------
Xxxxxxx X. Xxxxxxx
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