EXHIBIT B
EXECUTION COPY
VOTING AGREEMENT
AGREEMENT dated as of June 23, 1998 by and between LAREDO
ACQUISITION CORP., a Delaware corporation ("Acquisition"), and the other parties
signatory hereto (each a "Stockholder").
RECITALS
A. Concurrently herewith, Acquisition, and Celadon Group, Inc.,
a Delaware corporation (the "Company"), are entering into an Agreement and Plan
of Merger of even date herewith (as such agreement may be amended from time to
time, the "Merger Agreement"; capitalized terms used but not defined herein
shall have the meanings set forth in the Merger Agreement) pursuant to which
(and subject to the terms and conditions specified therein) Acquisition will be
merged with and into the Company (the "Merger").
B. As a condition to Acquisition entering into the Merger
Agreement, Acquisition requires that each Stockholder enter into, and each such
Stockholder hereby agrees to enter into, this Agreement.
AGREEMENT
To implement the foregoing and in consideration of the mutual
agreements contained herein, the parties hereby agree as follows:
1. Representations and Warranties of Stockholders. Each Stockholder hereby
severally and not jointly represents and warrants to Acquisition as follows:
(a) Ownership of Shares.
i. Such Stockholder is the record holder or beneficial owner of the
number of shares of Company Common Stock as is set forth opposite such
Stockholder's name on Schedule I hereto (such shares shall constitute the
"Existing Shares", and together with any shares of Company Common Stock
acquired of record or beneficially by such Stockholder in any capacity
after the date hereof and prior to the termination hereof, whether upon
exercise of options, conversion of convertible securities, purchase,
exchange or otherwise, shall constitute the "Shares").
ii. On the date hereof, the Existing Shares set forth opposite such
Stockholder's name on Schedule I hereto constitute all of the outstanding
shares of Company Common Stock owned of record or beneficially by such
Stockholder. Such Stockholder does not have record or beneficial ownership
of any Shares not set forth on Schedule I hereto.
iii. Such Stockholder has sole power of disposition with respect to all
of the Existing Shares set forth opposite such Stockholder's name on
Schedule I and sole voting power with respect to the matters set forth in
Section 2 hereof and sole power to demand appraisal
rights, in each case with respect to all of the Existing Shares set forth
opposite such Stockholder's name on Schedule I, with no restrictions on
such rights, subject to applicable federal securities laws and the terms of
this Agreement.
iv. Such Stockholder will have sole power of disposition with respect
to Shares other than Existing Shares, if any, which become beneficially
owned by such Stockholder and will have sole voting power with respect to
the matters set forth in Section 2 hereof and sole power to demand
appraisal rights, in each case with respect to all Shares other than
Existing Shares, if any, which become beneficially owned by such
Stockholder with no restrictions on such rights, subject to applicable
federal securities laws and the terms of this Agreement.
(b) Organization; Power; Binding Agreement. If such Stockholder is a
corporation, such Stockholder is a corporation duly formed, validly existing and
in good standing under the laws of its jurisdiction of its organization. If such
Stockholder is a corporation, such Stockholder has the necessary corporate power
and authority to enter into and perform all of such Stockholder's obligations
under this Agreement and has taken all corporate action necessary to execute and
deliver this Agreement, to consummate the transactions contemplated hereby and
to perform its obligations hereunder, and no other corporate proceedings on the
part of such Stockholder are necessary to authorize the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby. If such Stockholder is an individual, such Stockholder has
the legal capacity, power and authority to enter into and perform all of such
Stockholder's obligations under this Agreement. This Agreement has been duly and
validly executed and delivered by such Stockholder and constitutes a valid and
binding agreement of such Stockholder, enforceable against such Stockholder in
accordance with its terms. If such Stockholder is married and such Stockholder's
Shares constitute community property, this Agreement has been duly authorized,
executed and delivered by, and constitutes a valid and binding agreement of,
such Stockholder's spouse, enforceable against such person in accordance with
its terms.
(c) No Conflicts. Except for filings under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), if applicable, and any
required amendments to any Schedule 13D filed by any such Stockholder, (A) 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 such Stockholder and the consummation by such Stockholder of the
transactions contemplated hereby and (B) neither the execution, delivery or
performance of this Agreement by such Stockholder nor the consummation by such
Stockholder of the transactions contemplated hereby nor compliance by such
Stockholder with any of the provisions hereof shall (x) conflict with or result
in any breach of any applicable certificate of incorporation, bylaws, trust,
partnership agreement or other agreements or organizational documents applicable
to such Stockholder, (y) 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 such Stockholder is a
party or by which such Stockholder or any of such Stockholder's properties or
assets may be bound or (z) violate any order, writ, injunction, decree,
judgment, law, statute, rule or regulation applicable to such Stockholder or any
of such Stockholder's properties or assets.
(d) No Transfer. Except as described on Schedule II, such Stockholder's
Shares and the certificates representing such Shares are now and at all times
during the term hereof will be held by such
2
Stockholder, or by a nominee or custodian for the benefit of such Stockholder,
free and clear of all liens, claims, security interests, proxies, voting trusts
or agreements, understandings or arrangements or any other encumbrances
whatsoever, except for any such encumbrances or proxies arising hereunder.
(e) No Finders. No broker, investment banker, financial adviser or other
person is entitled to any broker's, finder's, financial adviser's or other
similar fee or commission in connection with the transactions contemplated
hereby based upon arrangements made by or on behalf of such Stockholder in his
or her capacity as such.
(f) Acknowledgment. Such Stockholder understands and acknowledges that
Acquisition is entering into the Merger Agreement in reliance upon such
Stockholder's execution and delivery of this Agreement.
2. Agreement To Vote; Proxy.
2.1. Voting. Each Stockholder hereby severally and not jointly agrees that,
until the Termination Date (as defined in Section 7 hereof), at any meeting of
the stockholders of the Company, however called, or in connection with any
written consent of the stockholders of the Company, such Stockholder shall vote
(or cause to be voted) the Shares held of record or beneficially by such
Stockholder (i) in favor of the Merger and adoption of the Merger Agreement, the
execution and delivery by the Company of the Merger Agreement and the approval
of the terms thereof and in favor of each of the other actions contemplated by
the Merger Agreement and this Agreement and any actions required in furtherance
hereof and thereof; (ii) against any action or agreement that would (or would be
reasonably likely to) result in a breach of any covenant, representation or
warranty or any other obligation or agreement of the Company under the Merger
Agreement or this Agreement; and (iii) except as specifically requested in
writing by Acquisition in advance, against the following actions (other than the
Merger and the transactions contemplated by the Merger Agreement): (1) any
extraordinary corporate transaction, such as a merger, consolidation or other
business combination involving the Company or any of its subsidiaries; (2) a
sale, lease or transfer (whether by merger, consolidation, operation of law or
otherwise) of a material amount of assets of the Company or any of its
subsidiaries or a reorganization, recapitalization, dissolution or liquidation
of the Company or any of its subsidiaries; (3) (a) any change in the majority of
the board of directors of the Company; (b) any change in the present
capitalization of the Company or any amendment of the Company's certificate of
incorporation or by-laws; (c) any other material change in the Company's
corporate structure or business; or (d) any other action which is intended, or
could reasonably be expected, to impede, interfere with, delay, postpone,
discourage or materially adversely affect the Merger or the transactions
contemplated by the Merger Agreement or this Agreement or the contemplated
economic benefits of any of the foregoing. Such Stockholder shall not enter into
any agreement or understanding with any person or entity prior to the
Termination Date to vote or give instructions after the Termination Date in any
manner inconsistent with clauses (i), (ii) or (iii) of the preceding sentence.
2.2. PROXY. EACH STOCKHOLDER HEREBY GRANTS TO, AND APPOINTS, ACQUISITION AND
XXXXX XXXXX, PRESIDENT OF ACQUISITION, AND XXXXXXX XXXXXXXX, VICE PRESIDENT OF
ACQUISITION, IN THEIR RESPECTIVE CAPACITIES AS OFFICERS OF ACQUISITION, AND ANY
INDIVIDUAL WHO SHALL HEREAFTER SUCCEED TO ANY SUCH OFFICE OF ACQUISITION, AND
ANY OTHER DESIGNEE OF ACQUISITION, EACH OF THEM INDIVIDUALLY, SUCH STOCKHOLDER'S
IRREVOCABLE (UNTIL THE TERMINATION DATE)
3
PROXY AND ATTORNEY-IN-FACT (WITH FULL POWER OF SUBSTITUTION) TO VOTE THE SHARES
AS INDICATED IN SECTION 2.1 ABOVE. EACH STOCKHOLDER INTENDS THIS PROXY TO BE
IRREVOCABLE (UNTIL THE TERMINATION DATE) AND COUPLED WITH AN INTEREST AND WILL
TAKE SUCH FURTHER ACTION AND EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE NECESSARY
TO EFFECTUATE THE INTENT OF THIS PROXY AND HEREBY REVOKES ANY PROXY PREVIOUSLY
GRANTED BY SUCH STOCKHOLDER WITH RESPECT TO SUCH STOCKHOLDER'S SHARES.
3. Certain Covenants of Stockholders. Except in accordance with the terms of
this Agreement, each Stockholder hereby severally covenants and agrees as
follows:
3.1. No Solicitation. Prior to the Termination Date, no Stockholder shall, in
its capacity as such, directly or indirectly (including through advisors, agents
or other intermediaries), solicit (including by way of furnishing information)
or respond to any inquiries or the making of any proposal by any person or
entity (other than Acquisition or any Affiliate thereof) with respect to the
Company that constitutes or could reasonably be expected to lead to an
Acquisition Proposal (as defined in Section 6.4 in the Merger Agreement). If any
Stockholder in its capacity as such receives any such inquiry or proposal, then
such Stockholder shall promptly inform Acquisition of the terms and conditions,
if any, of such inquiry or proposal and the identity of the person making it.
Each Stockholder, in its capacity as such, will immediately cease and cause to
be terminated any existing activities, discussions or negotiations with any
parties conducted heretofore with respect to any of the foregoing.
Notwithstanding the foregoing, nothing in this Section 3.1 shall restrict a
Stockholder who is also a director of the Company from taking actions in such
Stockholder's capacity as a director to the extent and in the circumstances
permitted by Section 6.4 of the Merger Agreement.
3.2. Restriction on Transfer, Proxies and Noninterference; Restriction on
Withdrawal. Prior to the Termination Date, no Stockholder shall, directly or
indirectly: (i) except pursuant to the terms of the Merger Agreement and to
Acquisition pursuant to this Agreement, offer for sale, sell, transfer (whether
by merger, consolidation, operation of law or otherwise), tender, pledge,
encumber, assign or otherwise dispose of, enforce or permit the execution of the
provisions of any redemption agreement with the Company or enter into any
contract, option or other arrangement or understanding with respect to or
consent to the offer for sale, sale, transfer (whether by merger, consolidation,
operation of law or otherwise), tender, pledge, encumbrance, assignment or other
disposition of, or exercise any discretionary powers to distribute, any or all
of such Stockholder's Shares or any interest therein, (ii) except as
contemplated by this Agreement, grant any proxies or powers of attorney with
respect to any Shares, deposit any Shares into a voting trust or enter into a
voting agreement with respect to any Shares; or (iii) take any action that would
make any representation or warranty of such Stockholder contained herein untrue
or incorrect or have the effect of preventing or disabling such Stockholder from
performing such Stockholder's obligations under this Agreement. Acquisition
acknowledges the circumstances described on Schedule II which shall not be
construed as a breach of this covenant.
3.3. Waiver of Appraisal Rights. Each Stockholder hereby waives any rights of
appraisal from the Merger that such Stockholder may have.
3.4. Agreement to Roll-Over. Each Stockholder listed on Schedule A to the Merger
Agreement understands and acknowledges that Sub is entering into the Merger
Agreement in reliance upon the conversion of their shares into the right to
receive the Surviving Corporation Common Stock and agree
4
to such conversion pursuant to Section 3.2 of the Merger Agreement. Each
Stockholder hereby agrees to rollover the number of shares of Company Common
Stock set forth opposite such Stockholder's name on Schedule A to the Merger
Agreement.
3.5. Confidentiality, No Hire.
(a) Each Stockholder agrees that for a period ending five years after the
Effective Time of the Merger, such Stockholder will not disclose to any other
party, unless required to do so by law, any Confidential Information relating to
the Company or to any subsidiary or affiliate thereof which information was
acquired during the course of such Stockholder's relationship with the Company.
As used in this Agreement, the term "Confidential Information" means information
that is not generally known or available to the public and that is used,
developed or obtained by the Company or its subsidiaries or affiliates in
connection with its businesses, including but not limited to, (i) products or
services; (ii) fees, costs and pricing structures; (iii) designs; (iv) computer
software, including operating systems, applications and program listings; (v)
flow charts, manuals and documentation; (vi) data bases; (vii) accounting and
business methods; (viii) inventions, devices, new developments, methods and
processes, whether patentable or unpatentable and whether or not reduced to
practice; (ix) customers or customer requirements, order levels or projections
and customer or client lists; (x) other copyrightable works; (xi) all technology
and trade secrets; and (xii) all similar and related information in whatever
form. Confidential Information will not include any information that has been
published in a form generally available to the public prior to the date the
Stockholder proposes to disclose or use such information.
(b) Each Stockholder agrees that for a period ending two years after the
Effective Time of the Merger, without the prior written consent of the Company,
neither such Stockholder nor any business or enterprise with which such
Stockholder is associated as an officer, director or controlling shareholder or
other investor (in each case, with the power to direct or cause the direction of
the management of such business or enterprise) will employ or attempt to employ
an employee of the Company or any of its Subsidiaries or joint ventures.
3.6. Hanseatic Agreement. Each Stockholder that is a party to that certain
Stockholders Agreement dated as of October 8, 1992 and as amended as of July 3,
1996 (the "Stockholders Agreement") by and among the Company, Xxxxxxx Xxxxxxx,
and Hanseatic Corporation agrees that, from the date hereof until the date the
Merger Agreement is terminated in accordance with its terms, the Stockholders
Agreement shall be of no force or effect to the extent that the Stockholders
Agreement is inconsistent with this Agreement, the Merger Agreement or the
transactions contemplated hereby or thereby and that such Stockholder shall not,
and shall not attempt to, either directly or indirectly, exercise any of its
rights under the Stockholders Agreement in any manner inconsistent with this
Agreement, the Merger Agreement or the transactions contemplated hereby or
thereby (it being agreed that, without limitation, the exercise of any rights
under Article II of the Stockholders Agreement by any Stockholder in connection
with the transactions contemplated by the Merger Agreement would be inconsistent
with this Agreement, the Merger Agreement and the transactions contemplated
hereby and thereby). Each Stockholder that is party to the Stockholders
Agreement further agrees that the Stockholder Agreement shall terminate as of
the Closing and to execute such additional documents and agreements to effect
the foregoing. Acquisition acknowledges that Hanseatic Corporation's
representations and warranties set forth in Sections 1(a)(ii), 1(a)(iii) and
1(a)(iv) shall not be deemed to have been
5
breached as a result of the existence of the Stockholders Agreement.
4. Further Assurances. From time to time, at the other party's request and
without further consideration, each party hereto shall execute and deliver such
additional documents and take all such further action as may be necessary or
desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
5. Certain Events. Each Stockholder agrees that this Agreement and the
obligations thereunder shall attach to such Stockholder's Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of such
Shares shall pass, whether by operation of law or otherwise, including without
limitation such Stockholder's heirs, guardians, administrators or successors or
as a result of any divorce.
6. Stop Transfer. Each Stockholder agrees with, and covenants to, Acquisition
that such Stockholder shall not request that the Company register the transfer
(book-entry or otherwise) of any certificate or uncertificated interest
representing any of such Stockholder's Shares, unless such transfer is made in
compliance with this Agreement.
7. Termination. The obligations of the Stockholders under this Agreement shall
terminate upon the date the Merger Agreement is terminated in accordance with
its terms. The termination of this Agreement shall not relieve any party from
liability for any breach of this Agreement.
8. Miscellaneous.
8.1. Entire Agreement; Assignment. This Agreement (i) constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof and (ii) shall not
be assigned by operation of law or otherwise without the prior written consent
of the other parties, provided that Acquisition may assign, in its sole
discretion, its rights and obligations hereunder to any affiliate of
Acquisition, but no such assignment shall relieve Acquisition of its obligations
hereunder if such assignee does not perform such obligations.
8.2. Amendments. This Agreement may not be modified, amended, altered or
supplemented, except upon the execution and delivery of a written agreement
executed by the parties hereto; provided that Schedule I may be supplemented by
Acquisition by adding the name and other relevant information concerning any
stockholder of the Company who is or agrees to be bound by the terms of this
Agreement without the agreement of any other party hereto, and thereafter such
added stockholder shall be treated as a "Stockholder" for all purposes of this
Agreement.
8.3. Notices. All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be given (and shall be deemed to have
been duly received if so given) by hand delivery, telegram, telex or telecopy,
or by mail (registered or certified mail, postage prepaid, return receipt
requested) or by any courier service, such as Federal Express, providing proof
of delivery. All communications hereunder shall be delivered to the Stockholders
at the addresses set forth on Schedule I hereto. All communications hereunder
shall be delivered to Acquisition as follows:
6
c/o Odyssey Investment Partners, LLC
000 Xxxx Xxxxxx
Xxxx Tower, 38th Floor
New York, New York 10017
Attn: Xxxxx Xxxxx
copy to:
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxxx Xxxxxxx
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
8.4. 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 laws thereof.
8.5. Enforcement. The parties agree that irreparable damage would occur in the
event that any of the provisions 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 an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement.
8.6. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original, but both of which shall
constitute one and the same Agreement.
8.7. Descriptive Headings. The descriptive headings used 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.
8.8. Severability. Whenever possible, each provision or portion of any provision
of this Agreement will be interpreted in such manner as to be effective and
valid under applicable law but if any provision or portion of any provision of
this Agreement is held to be invalid, illegal or unenforceable in any respect
under any applicable law or rule in any jurisdiction, such invalidity,
illegality or unenforceability will not affect any other provision or portion of
any provision in such jurisdiction, and this Agreement will be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision or portion of any provision had never been contained
herein.
8.9. Definitions; Construction. For purposes of this Agreement:
(a) "beneficially own" or "beneficial ownership" with respect to any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Exchange Act), including pursuant to
any agreement, arrangement or understanding, whether or not in writing. Without
duplicative counting of the same securities by the same holder, securities
beneficially owned by a Person shall include securities beneficially owned by
all other Persons with whom such
7
Person would constitute a "group" as described in Section 13(d)(3) of the
Exchange Act.
(b) "Person" shall mean an individual, corporation, partnership, joint
venture, association, trust, unincorporated organization or other entity.
(c) In the event of a stock dividend or distribution, or any change in the
Company Common Stock by reason of any split-up, subdivision, recapitalization,
combination, exchange of shares or the like, the term "Shares" shall be deemed
to refer to and include the Shares as well as all stock distributed pursuant to
such stock dividends and distributions and any shares into which or for which
any or all of the Shares may be changed, exchanged, split, subdivided, combined
or recapitalized.
8.10. Stockholder Capacity. Notwithstanding anything herein to the contrary, no
person executing this Agreement who is, or becomes during the term hereof, a
director of the Company makes any agreement or understanding herein in his or
her capacity as such director, and the agreements set forth herein shall in no
way restrict any director in the exercise of his or her fiduciary duties as a
director of the Company. Each Stockholder has executed this Agreement solely in
his or her capacity as the record or beneficial holder of such Stockholder's
Shares.
[Signature Page Follows]
8
IN WITNESS WHEREOF, Acquisition and each Stockholder have
caused this Agreement to be duly executed as of the day and year first above
written.
LAREDO ACQUISITION CORP.
By: /s/ Xxxxx Xxxxx
-------------------------------
Name:
-------------------------------
Title:
-------------------------------
By: /s/ Xxxxx Xxxxx
-------------------------------
Name:
-------------------------------
Title:
-------------------------------
STOCKHOLDERS:
Xxxxxxx Xxxxxxx
/s/ Xxxxxxx Xxxxxxx
-------------------------------
Hanseatic Corporation
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------
Name:
-------------------------------
Title:
-------------------------------
9
Schedule I
Name Number of Existing Shares
---- -------------------------
Xxxxxxx Xxxxxxx 924,804
Hanseatic Corporation 947,232*
* Exclusive of 12,121 shares issuable upon exercise of warrants, which for
purposes of this Agreement shall be deemed Shares solely in the event of
exercise of such warrants.
10
Schedule II
Hanseatic Americas LDC and certain clients of Hanseatic
Corporation have economic rights with respect to the Shares beneficially owned
by Hanseatic Corporation. However, such rights do not impair or limit Hanseatic
Corporation's record and beneficial ownership power of disposition, voting power
or power to demand appraisal rights with respect to its Shares.
11
