1
EXHIBIT (d)(2)
--------------
CONTRIBUTION AND VOTING AGREEMENT
---------------------------------
This Agreement is entered into effective May 11, 2001 by and among Xxx
X. Xxxxxxxx, Xxxxxx X. Xxxxxxx, Xxxxx LLC, a Nevada limited liability company
(the Holding Company), and certain shareholders of Xxxx Automotive Warehouse,
Inc. (the Continuing Shareholders) listed on Schedule A attached hereto.
WHEREAS, Futerman and Chessin have negotiated, on behalf of the Holding
Company and the Continuing Shareholders, a transaction to take private the
ownership of Xxxx Automotive Warehouse, Inc. (the Company) in accordance with
the term of the Merger Agreement dated April 6, 2001 between the Company and the
Acquirers (as defined therein); and
WHEREAS, the Merger Agreement contemplates that the Continuing
Shareholders will retain their equity interests in the private company by virtue
of their contribution to the Holding Company of the Company common stock owned
by them; and
WHEREAS, the Company has required that the Continuing Shareholders
demonstrate their commitment to the consummation of the proposed merger by
executing this Agreement.
Now therefore, the parties hereto agree as follows:
1. At or prior to the Closing of the Merger, the Continuing
Shareholders shall each contribute to the Holding Company any
and all shares of common stock of the Company, which they may
own, beneficially or of record, at the time of such
contribution.
2. Each Continuing Shareholder shall, in exchange for making such
contribution, receive non-voting membership units in the
Holding Company. As a result, the Continuing Shareholders
shall have no right to vote on matters of entity governance of
the Holding Company, and acknowledge that all such matters
shall be decided by the holders of the voting interests, who
are Xxx X. Xxxxxxxx and Xxxxxx X. Xxxxxxx.
3. Each Continuing Shareholder agrees to vote any and all shares
of Company common stock owned by it, at the Company
shareholders meeting called for such purpose, in favor of the
proposed Merger. The Holding Company likewise agrees to vote
any and all shares of Company common stock owned by it in
favor of the proposed Merger.
4. Each Continuing Shareholder, and the Holding Company, hereby
agrees not to dispose of or to acquire any additional shares
of Company common stock prior to the earlier of the closing of
the Merger or termination of the Merger Agreement,
2
except for the contribution to the Holding Company
contemplated by this Agreement.
In witness whereof, the parties have executed this Agreement to be
effective as of May 11, 2001.
/s/ Xxx X. Xxxxxxxx
------------------------------------
Xxx X. Xxxxxxxx
Individually and on behalf of his minor children
/s/ Xxxxxx X. Xxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxx
XXXXX LLC
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxx, Manager
/s/ Xxx X. Xxxxxxxx
--------------------------------
Xxx X Xxxxxxxx, Manager
ESTATE OF XXXXXXX XXXXXXXX
/s/ Xxx X. Xxxxxxxx
------------------------------------
Xxx X. Xxxxxxxx, Executor
XXXXXXX XXXXXXXX MARITAL TRUST
/s/ Xxx X. Xxxxxxxx
------------------------------------
Xxx X. Xxxxxxxx, Trustee
/s/ Xxxx Xxxxxxxx
------------------------------------
Xxxx Xxxxxxxx
/s/ Xxxx Xxxxxxx
------------------------------------
Xxxx Xxxxxxx
Individually and On Behalf of Her Minor Children
/s/ Xxx Xxxxxxxxxx
------------------------------------
Xxx Xxxxxxxxxx
/s/ Xxxxxx Xxxxxxxx
------------------------------------
Xxxxxx Xxxxxxxx
Individually and On Behalf of Her Minor Children
