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Exhibit 1
STOCKHOLDER VOTING AND OPTION AGREEMENT
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STOCKHOLDER VOTING AND OPTION AGREEMENT (this "AGREEMENT"), dated as
September __, 1999, among Paragon Corporate Holdings, Inc., a Delaware
corporation ("PARENT"), Multi Acquisition Corp., a Delaware corporation and a
wholly owned subsidiary of Parent ("SUB"), and the undersigned stockholders
(individually, a "Stockholder" and collectively, the "STOCKHOLDERS") of
Multigraphics, Inc., a Delaware corporation (the "COMPANY").
WHEREAS, Parent, Sub and the Company, propose to enter into all
Agreement and Plan of Merger dated as of even date herewith (as the same may be
amended or supplemented, the "MERGER AGREEMENT") pursuant to which Sub would be
merged with and into the Company with the Company surviving such merger (the
"MERGER"), and each issued and outstanding share of Common Stock, $.025 par
value per share of the Company (the "SHARES") shall be converted in the Merger
into the right to receive $1.25 per Share, in cash, as provided in the Merger
Agreement;
WHEREAS, the Stockholders legally and/or beneficially own that number
of Shares appearing on the signature page hereof (such shares of any Stockholder
or of the Stockholders collectively, as they may be increased upon any purchase
of Shares or upon exercise of any option or warrant to purchase Shares or as
they may be adjusted by any stock dividend, stock split, recapitalization,
combination or exchange of shares, merger, consolidation, reorganization or
other change or transaction of or by the Company (each, an "ADJUSTMENT EVENT")
being referred to herein as the "SUBJECT SHARES"); and
WHEREAS, approval of the Merger Agreement by the Company's stockholders
is a condition to the consummation of the Merger and in connection therewith,
the Company has agreed to call a special meeting of the stockholders to vote on
the Merger Agreement;
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Sub have requested that the Stockholders enter into this
Agreement; and
WHEREAS, the Stockholders have been informed that the Board of
Directors of the Company has approved the Merger Agreement.
NOW, THEREFORE, to induce Parent and Sub to enter into, and in
consideration of their entering into, the Merger Agreement, and in consideration
of the premises and the representations, warranties and agreements contained
herein, the parties agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS. The Stockholders
hereby represent and warrant to Parent and Sub as follows:
(a) AUTHORITY. Each Stockholder has all requisite capacity,
power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly authorized,
executed and delivered by each Stockholder and constitutes a valid and binding
obligation of each Stockholder enforceable in accordance with
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its terms. The execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated hereby and compliance with the
terms hereof will not, conflict with, or result in any violation of, or default
(with or without notice or lapse of time or both) under any provision of, any
trust agreement, loan or credit agreement, note, bond, mortgage, indenture,
lease or other agreement, instrument, permit, concession, franchise, license,
judgment, order, notice, decree, statute, law, ordinance, rule or regulation
applicable to any Stockholder or to any Stockholder's property or assets. Except
for informational filings with the Securities Exchange Commission ("SEC"), no
consent, approval, order or authorization of, or registration, declaration or
filing with, any court, administrative agency or commission or other
governmental authority or instrumentality, domestic, foreign or supranational,
is required by or with respect to any Stockholder in connection with the
execution and delivery of this Agreement or the consummation by each Stockholder
of the transactions contemplated hereby.
(b) THE SUBJECT SHARES. Each Stockholder, respectively, has good and
marketable title, to the Subject Shares set forth in reasonable detail on
SCHEDULE 1, free and clear of any claims, liens, encumbrances and security
interests whatsoever. Each Stockholder owns no Shares other than such Subject
Shares.
2. REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB.
(a) AUTHORITY. Parent and Sub hereby represent and warrant to each
Stockholder that each of Parent and Sub has all requisite corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by Parent and
Sub, and the consummation of the transactions contemplated hereby, have been
duly authorized by all necessary corporate action on the part of Parent and Sub.
This Agreement has been duly executed and delivered by Parent and Sub and
constitutes a valid and binding obligation of Parent and Sub enforceable in
accordance with its terms. The execution and delivery of this Agreement does
not, and the consummation of the transactions contemplated hereby and compliance
with the terms hereof will not, conflict with, or result in any violation of, or
default (with or without notice or lapse of time or both) under any provision
of, any trust agreement, loan or credit agreement, note, bond, mortgage,
indenture, lease or other agreement, instrument, permit, concession, franchise,
license, judgment, order, notice, decree, statute, law, ordinance, rule or
regulation applicable to Parent or Sub or their respective property or assets.
Except for informational filings with the SEC, no consent, approval, order or
authorization of, or registration, declaration or filing with, any court,
administrative agency or commission or other governmental authority or
instrumentality, domestic, foreign or supranational, is required by or with
respect to Parent or Sub in connection with the execution and delivery of this
Agreement or, subject to the matters identified in Section 4.2 of the Merger
Agreement, the consummation by Parent and Sub of the transactions contemplated
hereby.
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(b) FINANCING. Parent and Sub have either sufficient cash resources or
financing commitments necessary to fund the cash payments for all of the Shares,
as contemplated by the Merger, and to pay all fees and expenses related to the
transactions contemplated by the Merger Agreement, and upon request of the
Stockholders, will provide written evidence of such cash resource and/or
financing commitments.
3. COVENANTS OF THE STOCKHOLDERS. Each Stockholder agrees as follows:
(a) At any meeting of stockholders of the Company called to vote upon
the Merger and the Merger Agreement or at any adjournment thereof or in any
other circumstances upon which a vote, consent or other approval with respect to
the Merger and the Merger Agreement is sought, each Stockholder, respectively,
shall vote (or cause to be voted) the Subject Shares in favor of the Merger, the
approval of the Merger Agreement and the approval of the terms thereof and each
of the other transactions contemplated by the Merger Agreement.
(b) At any meeting of stockholders of the Company or at any adjournment
thereof or in any other circumstances upon which a vote, consent or other
approval is sought, each Stockholder, respectively, shall vote (or cause to be
voted) the Subject Shares against (i) any merger agreement or merger (other than
the Merger Agreement and the Merger), consolidation, combination, sale of
substantial assets, reorganization, recapitalization, dissolution, liquidation
or winding up of or by the Company or any other Acquisition Proposal or (ii) any
amendment of the Company's Certificate of Incorporation or By-laws or other
proposal or transaction involving the Company or any of its affiliates, which
amendment or other proposal or transaction would in any manner impede,
frustrate, prevent or nullify the Merger, the Merger Agreement or any of the
other transactions contemplated by the Merger Agreement.
(c) Each Stockholder, respectively, agrees not to (i) sell, transfer,
pledge, assign or otherwise dispose of, or enter into any contract, option or
other arrangement (including any profit sharing arrangement) with respect to the
sale, transfer, pledge, assignment or other disposition of, the Subject Shares
(or any option or warrant to purchase Shares, except for any sale or transfer to
the Company) to any person other than Sub or Sub's designee or (ii) enter into
any voting arrangement, whether by proxy, voting agreement or otherwise, in
connection, directly or indirectly, with any Acquisition Proposal (as defined in
the Merger Agreement).
4. ASSIGNMENT. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any of the parties without the
prior written consent of the other parties, except that Sub may assign any or
all of its rights, interests and obligations hereunder, in its sole discretion,
to Parent or, with the consent of the Stockholders, which consent shall not be
unreasonably withheld or delayed, to any direct or indirect wholly owned
subsidiary of Parent. Subject to the preceding sentence, this Agreement will be
binding upon, inure to the benefit of and
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be enforceable by the parties and their respective successors and assigns and;
in the case of each Stockholder, the heirs, executors and administrators of the
Stockholder.
5. TERMINATION. This Agreement shall terminate upon the earliest of the
following events (each a "TERMINATION EVENT"):
(a) the Effective Time (as defined in the Merger Agreement);
(b) the termination of the Merger Agreement pursuant to Section 8.1
thereof, other than a termination under Section 8.1(d) or (e) (the terminations
described in this subclause (b) being referred to herein as the "TERMINATION
TRIGGER EVENTS");
(c) 60 days following any termination of the Merger Agreement that
constitutes a Termination Trigger Event;
(d) the amendment of the Merger Agreement in a manner adverse to any
Stockholder without the Stockholder's consent, which consent shall not be
unreasonably withheld or delayed;
(e) at the election of the Stockholders if the Merger has not been
consummated by March 31, 2000; or
(f) the making by the Company of a general assignment for the benefit
of creditors, the filing by the Company of a voluntary petition in bankruptcy,
the adjudication of the Company as bankrupt or insolvent, or the entry of an
order, judgment or decree by any court of competent jurisdiction, granting
relief against the Company in any bankruptcy or insolvency proceeding; or
(g) on September 30, 1999, in the event Parent and the Company shall
have not executed the Merger Agreement or Parent shall not be in compliance with
its covenants pursuant to the credit facility and security agreement between
Parent and the Company.
6. NO LIMITATIONS ON ACTIONS OF A STOCKHOLDER AS A DIRECTOR, OFFICER OR
EMPLOYEE. Notwithstanding anything to the contrary in this Agreement, nothing in
this Agreement is intended or shall he construed to require any Stockholder to
take or in any way limit any action that the Stockholder may take to discharge
the Stockholder's duties as a director, officer or employee of the Company,
including fiduciary duties.
7. RELIANCE ON COUNSEL AND OTHER ADVISORS. Each of the parties hereto
has consulted with such legal, financial, technical or other experts it deems
necessary or desirable before entering into this Agreement. Each of the parties
hereto represents and warrants that it has read, knows, understands and agrees
with the terms and conditions of this Agreement. None of the parties
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hereto has relied upon any oral representations of the other party in entering
into this Agreement.
8. OPTION TO PURCHASE SUBJECT SHARES. (a) The Stockholders hereby grant
to Parent an irrevocable nonassignable option (the "OPTION") to purchase all,
but not less than all, of the Subject Shares at the purchase price per Subject
Share specified below, upon the terms and subject to the conditions set forth
herein. Subject to the conditions set forth in Section 8(b), the Option may be
exercised by Parent, in whole at any time, after the date hereof and prior to
the termination of the Option in accordance with Section 5. In the event Parent
wishes to exercise the Option, Parent shall send a written notice to the
Stockholders (a "STOCK EXERCISE NOTICE") specifying a date (which shall be not
later than 20 business days nor earlier than two business days after the date
such notice is given) for the closing of such purchase (a "CLOSING DATE"). In
the case of the occurrence of an Adjustment Event, the consideration payable in
respect of the Subject Shares shall be appropriately adjusted to restore to
Parent its rights and privileges under this Agreement.
(b) Parent's right to exercise the Option is subject to the conditions
that:
(i) No preliminary or permanent injunction or other order
issued by any federal or state court of competent jurisdiction in the United
States invalidating the grant or prohibiting the exercise of the Option or the
delivery of the Subject Shares shall be in effect; and
(ii) One or more Trigger Events (as defined in the Merger
Agreement) shall occur on or after the date hereof.
(c) Parent's obligation to purchase Subject Shares following the
exercise of the Option, in whole or in part, and the Stockholders' obligation to
deliver such Subject Shares, are subject to the conditions that:
(i) No preliminary or permanent injunction or other order
issued by any federal or state court of competent jurisdiction in the United
States prohibiting the delivery of such Subject Shares shall be in effect;
(ii) The purchase of such Subject Shares shall not violate
Rule 10b-13 under the Exchange Act; and
(iii) All applicable waiting periods under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, shall have
expired or been terminated.
(d) At the Closing Date, the Stockholders shall deliver to Parent a
certificate or certificates representing the Subject Shares then being purchased
in the denominations reasonably designated by Parent in its applicable Stock
Exercise Notice and Parent shall purchase such Subject Shares from the
Stockholders at a price per Subject Share equal to
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$1.25, payable in cash by wire transfer of immediately available funds to a bank
in the United States designated in writing by the Stockholders.
(e) In the event that Parent or one of its affiliates shall, within six
months following the Closing Date, enter into a definitive agreement or
consummate an acquisition of substantially all of the capital stock of the
Company for a price per Share, taking into account any Adjustment Events, which
exceeds $1.25, the Stockholders shall be entitled to receive, upon the closing
of such transaction, an amount equal to the number of Subject Shares multiplied
by the excess of the consideration paid by Parent or its affiliate over $1.25.
9. GENERAL PROVISIONS.
(a) EXPENSES. Except as otherwise expressly provided herein or in the
Merger Agreement, all costs and expenses incurred in connection with the
transactions contemplated by this Agreement shall be paid by the party incurring
such expenses.
(b) SPECIFIC PERFORMANCE. The parties recognize and agree that if for
any reason any of the provisions of this Agreement are not performed in
accordance with their specific terms or are otherwise breached, immediate and
irreparable harm or injury would be caused for which money damages would not be
an adequate remedy. Accordingly, each party agrees that, in addition to other
remedies, the other party shall be entitled to an injunction restraining any
violation or threatened violation of the provisions of this Agreement. In the
event that any action should be brought in equity to enforce the provisions of
the Agreement, none of the parties will allege, and each of the parties hereby
waives the defense, that there is an adequate remedy at law.
(c) NOTICE. All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed given or delivered (i) when
delivered personally, (ii) if transmitted by Fax when confirmation of
transmission is received, or (iii) if sent by registered or certified mail,
return receipt requested, or by private courier, when received; and shall be
addressed as follows:
if to Parent or Sub, to:
Paragon Corporate Holdings Inc.
0000 Xxxx Xxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx
Chairman
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with a copy (which shall
not constitute notice) to:
Squire, Xxxxxxx & Xxxxxxx L.L.P.
0000 Xxx Xxxxx
000 Xxxxxx Xxxxxx
Attention: Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
if to a Stockholder, to:
Apollo Advisors, L.P.
0000 Xxxxxx xx xxx Xxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Facsimile: (000) 000-0000
or to such other address as such party may indicate by a notice delivered to the
other parties in accordance with this section.
(d) PARTIES IN INTEREST. Nothing in this Agreement, expressed or
implied, is intended to confer upon any Person other than Parent, Sub or the
Stockholders, or their permitted successors or assigns, any rights or remedies
under or by reason of this Agreement.
(e) ENTIRE AGREEMENT; AMENDMENTS; WAIVER. This Agreement constitutes
the entire agreement among the parties with respect to the subject matter hereof
and supersedes all other prior agreements and understandings, both written and
oral, among the parties or any of them with respect to the subject matter
hereof. This Agreement may be amended by the parties hereto and the terms and
conditions hereof may be waived only by an instrument in writing signed on
behalf of each of the parties hereto, or, in the case of a waiver, by an
instrument signed on behalf of the party waiving compliance.
(f) HEADINGS. The descriptive headings herein are inserted for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement.
(g) COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be considered an original instrument, but all of which shall be
considered one and the same agreement, and shall become binding when such
counterparts have been signed by each of the parties hereto and delivered to
each of the other parties.
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(h) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws (as opposed to the conflicts of law
provisions) of the State of Delaware.
(i) CAPITALIZED TERMS. Capitalized terms not otherwise defined in this
Agreement shall have the meanings set forth in the Merger Agreement.
(j) SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other terms, conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic and legal
substance of the transactions contemplated hereby are not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the transactions contemplated by this Agreement may be consummated as
originally contemplated to the fullest extent possible.
(k) WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY OR DISPUTE THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES AND THEREFORE EACH SUCH PARTY HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY
CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH
SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III)
EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (IV) EACH SUCH PARTY HAS BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS CLAUSE (k).
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IN WITNESS WHEREOF, each of Parent, Sub and each Stockholder has caused
this Agreement to be signed by its officer thereunto duly authorized and each
Stockholder has signed this Agreement, all as of the date first written above.
PARAGON CORPORATE HOLDINGS, INC.
By: /s/ X. X. Xxxxxx
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Name: X. X. Xxxxxx
Title: VICE PRESIDENT AND CFO
MULTI ACQUISITION CORP.
By: /s/ X. X. Xxxxxx
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Name: X. X. Xxxxxx
Title: SECRETARY/TREASURER
STOCKHOLDERS
LION ADVISORS, L.P.,
on behalf of an investment account under management
By: LION CAPITAL MANAGEMENT, INC.,
its general partner
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Authorized Representative
Number of Shares owned by the Stockholder on the
date hereof 750,000
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AIF II, L.P.
By: APOLLO ADVISORS, L.P.
its general partner
By: APOLLO CAPITAL MANAGEMENT, INC.
its general partner
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Authorized Representative
Number of Shares owned by the Stockholder on the
date hereof 240,164
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SCHEDULE I
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The 750,000 shares owned by Lion Advisors, L.P. are beneficially held for an
investment account under management.
AIF II, L.P. beneficially owns 240,164 shares directly.
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