VOTING AND SUPPORT AGREEMENT
Exhibit 99.5
[EXECUTION COPY]
[EXECUTION COPY]
This VOTING AND SUPPORT AGREEMENT (this “Agreement”), dated as of March 22, 2006, by
and among MMC Precision Holdings Corp., a Delaware corporation (“Parent”), MMC Precision
Merger Corp., a Georgia corporation (“Sub”), and Xxxxxx X. Xxxxxxxx, an individual
(“Shareholder”).
WHEREAS, concurrently with the execution of this Agreement, Xxxxxx Industrial Group, Inc., a
Georgia corporation (the “Company”), Parent and Sub are entering into an Agreement and Plan
of Merger of even date herewith (the “Merger Agreement”; capitalized terms used but not
defined in this Agreement have the meanings ascribed thereto in the Merger Agreement);
WHEREAS, as of the date hereof, Shareholder is the record and beneficial owner of 14,532
shares of Class A common stock (“Class A Common Stock”), $0.01 par value, of the Company
(the shares of Class A Common Stock owned by Shareholder are referred to herein as the
“Shareholder Shares”); and
WHEREAS, as a condition to their willingness to enter into the Merger Agreement, Parent and
Sub have required that Shareholder enter into this Agreement and, in order to induce Parent and Sub
to enter into the Merger Agreement, Shareholder is willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements
contained herein, the parties hereto, intending to be legally bound hereby, agree as follows:
1. Agreements of Shareholder.
(a) Voting. From the date hereof until any termination of this Agreement in
accordance with its terms, at any meeting of the shareholders of the Company however called (or any
action by written consent in lieu of a meeting) or any adjournment thereof, Shareholder shall vote
all Shareholder Shares (or cause them to be voted) or (as appropriate) execute written consents in
respect thereof, (i) in favor of the adoption of the Merger Agreement and the approval of the
Transactions, (ii) against any action or agreement that would result in a breach of any
representation, warranty, covenant, agreement or other obligation of the Company in the Merger
Agreement, (iii) against any Company Takeover Proposal and (iv) against any agreement, amendment of
the Company Charter or Company Bylaws or other action that is intended or could reasonably be
expected to prevent, impede, interfere with, delay, postpone or discourage the consummation of the
Merger. Any such vote shall be cast (or consent shall be given) by Shareholder in accordance with
such procedures relating thereto so as to ensure that it is duly counted, including for purposes of
determining that a quorum is present and for purposes of recording the results of such vote (or
consent).
(b) Restriction on Transfer; Proxies; Non-Interference; etc. From the date hereof
until any termination of this Agreement in accordance with its terms, Shareholder shall
not, directly or indirectly (i) sell, transfer (including by operation of law), give, pledge,
encumber, assign or otherwise dispose of (including, without limitation, any Constructive
Disposition (as hereinafter defined)), or enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, gift, pledge, encumbrance, assignment or other
disposition of, any Shareholder Shares (or any right, title or interest thereto or therein), (ii)
deposit any Shareholder Shares into a voting trust or grant any proxies or enter into a voting
agreement, power of attorney or voting trust with respect to any Shareholder Shares, (iii) take any
action that would make any representation or warranty of Shareholder set forth in this Agreement
untrue or incorrect in any material respect or have the effect of preventing, disabling or delaying
Shareholder from performing any of its obligations under this Agreement, or (iv) agree (whether or
not in writing) to take any of the actions referred to in the foregoing clauses (i), (ii), or (iii)
of this Section 1(b). As used herein, the term “Constructive Disposition” means, with
respect to any Shareholder Shares, a short sale with respect to such security, entering into or
acquiring an offsetting derivative contract with respect to such security, entering into or
acquiring a futures or forward contract to deliver such security or entering into any other hedging
or other derivative transaction that has the effect of materially changing the economic benefits
and risks of ownership.
(c) No Solicitation. Shareholder shall, and shall cause his affiliates and his and
his affiliates’ respective directors, officers, employees, investment bankers, financial advisors,
attorneys, accountants, agents and other representatives (collectively, “Shareholder
Representatives”) to, concurrently with the execution and delivery of this Agreement,
immediately cease any discussions or negotiations with any other person regarding a Company
Takeover Proposal. From the date hereof until any termination of this Agreement in accordance with
its terms, Shareholder shall not, and shall cause the Shareholder Representatives not to (i)
directly or indirectly solicit, initiate or encourage the submission of, any Company Takeover
Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal, or (iii)
directly or indirectly participate in any discussions or negotiations regarding, or furnish to any
person any information with respect to, or take any other action to facilitate any inquiries or the
making of any proposal that constitutes, or may reasonably be expected to lead to, any Company
Takeover Proposal. In addition, Shareholder promptly shall advise Parent orally and, within one
business day, in writing if any proposal, offer, inquiry or other contact is received by, any
information is requested from, or any discussions or negotiations are sought to be initiated or
continued with, Shareholder in respect of any Company Takeover Proposal. Shareholder shall (i)
keep Parent fully informed of the status and details (including any change to the terms thereof) of
any such proposals, offers, inquiries, or requests concerning any Company Takeover Proposal and
(ii) provide to Parent as soon as practicable after receipt or delivery thereof with copies of all
correspondence and other written material sent or provided to Shareholder by any third party in
connection with any Company Takeover Proposal or sent or provided by Shareholder to any third party
in connection with any Company Takeover Proposal.
(d) Publication. Shareholder consents to the publishing and disclosing in the Proxy
Statement of Shareholder’s identity and ownership of Class A Common Stock and the nature of
Shareholder’s commitments, arrangements and understandings under this Agreement. Shareholder shall
not issue any press release or make any other public statement
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with respect to this Agreement, the Merger Agreement or the Transactions without the prior
written consent of Parent, except as may be required by applicable Law.
2. Representations and Warranties of Shareholder. Shareholder hereby represents and
warrants to Parent and Sub as follows:
(a) Authority. Shareholder has all necessary power and authority to execute and
deliver this Agreement and to perform his obligations hereunder. This Agreement has been duly
executed and delivered by Shareholder and, assuming due and valid authorization, execution and
delivery hereof by Parent and Sub, constitutes a valid and binding obligation of Shareholder,
except to the extent that the enforceability of such obligation may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or other similar laws of general
applicability relating to or affecting the enforcement of creditors’ rights and by the effect of
the principles of equity (regardless of whether enforceability is considered in a proceeding in
equity or at law).
(b) Consents and Approvals; No Violations. No consents or approvals of, or filings,
declarations or registrations with, any Governmental Entity are necessary for the performance by
Shareholder of his obligations hereunder, other than such consents, approvals, filings,
declarations or registrations that, if not obtained, made or given, would not, individually or in
the aggregate, reasonably be expected to prevent or materially delay the performance by Shareholder
of any of his obligations under this Agreement. Neither the execution and delivery of this
Agreement by Shareholder, nor the consummation by Shareholder of the transactions contemplated
hereby, nor compliance by Shareholder with any of the terms or provisions hereof, will (x) violate
any law, judgment, writ or injunction of any Governmental Entity applicable to Shareholder or any
of his properties or assets, or (y) violate, conflict with, result in the loss of any material
benefit under, constitute a default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, result in the termination of or a right of termination or
cancellation under, accelerate the performance required by, or result in the creation of any Lien
upon any of the properties or assets of Shareholder under, any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, deed of trust, license, permit, lease, agreement
or other instrument or obligation to which Shareholder is a party, or by which any of his
properties or assets may be bound or affected, except for such violations, conflicts, losses,
defaults, terminations, cancellations, accelerations or Liens as would not, individually or in the
aggregate, reasonably be expected to prevent or materially delay the performance by Shareholder of
any of his obligations under this Agreement.
(c) Ownership of Shares. Shareholder has record and beneficial ownership of all of
the Shareholder Shares. Shareholder owns all of the Shareholder Shares free and clear of any
proxy, voting restriction, adverse claim or other Lien (other than (i) as set forth in that certain
Voting Agreement, dated as of January 20, 1998, by and between Shareholder and the other
shareholders of the Company party thereto (the “Voting Agreement”) (provided that
Shareholder hereby represents that Shareholder has been released from all proxies granted by
Shareholder pursuant to the Voting Agreement with respect to all shareholder votes with respect to
the Merger and the Transactions), (ii) for restrictions in favor of Parent and Sub pursuant to this
Agreement, and (iii) for such transfer restrictions of general applicability as may be provided
under the Securities Act and the “blue sky” laws of the various States of the
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United States). Without limiting the foregoing, except (i) as set forth in the Voting
Agreement (provided that Shareholder hereby represents that Shareholder has been released from all
proxies granted by Shareholder pursuant to the Voting Agreement with respect to all shareholder
votes with respect to the Merger and the Transactions), (ii) for restrictions in favor of Parent
and Sub pursuant to this Agreement, and (iii) for such transfer restrictions of general
applicability as may be provided under the Securities Act and the “blue sky” laws of the various
States of the United States, Shareholder has sole voting power and sole power of disposition with
respect to all Shareholder Shares, with no restrictions on Shareholder’s rights of voting or
disposition pertaining thereto and no person other than Shareholder has any right to direct or
approve the voting or disposition of any Shareholder Shares. As of the date hereof, Shareholder
does not own, beneficially or of record and except for any options held by the Shareholder to
acquire any shares of Class A Common Stock of the Company (it being understood that the Class A
Common Stock issued to Shareholder upon the exercise of such options would constitute additional
Shareholder Shares hereunder), any securities of the Company other than 14,532 shares of Class A
Common Stock, which are owned beneficially and of record by Shareholder and collectively constitute
the Shareholder Shares.
(d) Brokers. No broker, investment banker, financial advisor or other person is
entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission that is
payable by the Company, Parent or any of their respective subsidiaries in connection with the
Transactions based upon arrangements made by or on behalf of Shareholder.
3. Termination. This Agreement shall terminate on the first to occur of (a) the
termination of the Merger Agreement in accordance with its terms and (b) the Effective Time.
Notwithstanding the foregoing, (i) nothing herein shall relieve any party from liability for fraud
or any willful breach of this Agreement and (ii) the provisions of this Section 3 and
Section 4 shall survive any termination of this Agreement.
4. Miscellaneous.
(a) Action in Shareholder Capacity Only. The parties acknowledge that this Agreement
is entered into by Shareholder solely in his capacity as owner of the Shareholder Shares and that
nothing in this Agreement shall in any way restrict or limit any director or officer of the Company
(including Shareholder) from taking any action in his or her capacity as a director or officer of
the Company that is necessary for him or her to comply with his or her fiduciary duties as a
director or officer of the Company, including, without limitation, participating in his or her
capacity as a director of the Company in any discussions or negotiations in accordance with Section
5.02 of the Merger Agreement. Further, nothing herein shall limit or affect the Company’s rights
in connection with the Merger Agreement.
(b) Expenses. Except as otherwise expressly provided in this Agreement, all costs and
expenses incurred in connection with the transactions contemplated by this Agreement shall be paid
by the party incurring such costs and expenses.
(c) Additional Shares. Until any termination of this Agreement in accordance with its
terms, Shareholder shall promptly notify Parent of the number of shares of Company Common Stock, if
any, as to which Shareholder acquires record or beneficial ownership after
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the date hereof. Any shares of Company Common Stock as to which Shareholder acquires record
or beneficial ownership after the date hereof and prior to termination of this Agreement shall be
Shareholder Shares for purposes of this Agreement. Without limiting the foregoing, in the event of
any stock split, stock dividend or other change in the capital structure of the Company affecting
the Company Common Stock, the number of Shares constituting Shareholder Shares shall be adjusted
appropriately and this Agreement and the obligations hereunder shall attach to any additional
shares of Company Common Stock or other voting securities of the Company issued to Shareholder in
connection therewith.
(d) Definition of “Beneficial Ownership”. For purposes of this Agreement, “beneficial
ownership” with respect to (or to “own beneficially”) 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.
(e) Further Assurances. From time to time, at the request of Parent and without
further consideration, Shareholder shall execute and deliver such additional documents and take all
such further action as may be reasonably required to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this Agreement.
(f) Entire Agreement; No Third Party Beneficiaries. This Agreement constitutes the
entire agreement, and supersedes all prior agreements and understandings, both written and oral,
among the parties, or any of them, with respect to the subject matter hereof. This Agreement is
not intended to and shall not confer upon any person other than the parties hereto any rights
hereunder.
(g) Assignment; Binding Effect. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties hereto (whether by
operation of law or otherwise) without the prior written consent of the other parties, except that
Sub may assign its rights and interests hereunder to Parent or to any wholly-owned subsidiary of
Parent if such assignment would not cause a delay in the consummation of any of the Transactions,
provided that no such assignment shall relieve Sub of its obligations hereunder if such assignee
does not perform such obligations. Subject to the preceding sentence, this Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their respective successors
and permitted assigns. No past, present or future director, officer, employee, incorporator,
member, affiliate, partner or stockholder of Parent or Sub shall have any liability for any
obligations of Parent or Sub under this Agreement or for any claim based on, in respect of, or by
reason of, the Transactions. Any purported assignment not permitted under this Section shall be
null and void.
(h) Amendments; Waiver. This Agreement may not be amended or supplemented, except by
a written agreement executed by the parties hereto. Any party to this Agreement may (A) waive any
inaccuracies in the representations and warranties of any other party hereto or extend the time for
the performance of any of the obligations or acts of any other party hereto or (B) waive compliance
by the other party with any of the agreements contained herein. Notwithstanding the foregoing, no
failure or delay by Parent or Sub in exercising any right hereunder shall operate as a waiver
thereof nor shall any single or partial
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exercise thereof preclude any other or further exercise thereof or the exercise of any other
right hereunder. Any agreement on the part of a party hereto to any such extension or waiver shall
be valid only if set forth in an instrument in writing signed on behalf of such party.
(i) Severability. If any term or other provision of this Agreement is determined by a
court of competent jurisdiction to be invalid, illegal or incapable of being enforced by any rule
of law or public policy, all other terms, provisions and conditions of this Agreement shall
nevertheless remain in full force and effect. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the parties as closely
as possible to the fullest extent permitted by applicable law in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the extent possible.
(j) Counterparts. This Agreement may be executed in two or more separate
counterparts, each of which shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement. This Agreement shall become effective when each party
hereto shall have received counterparts hereof signed by the other parties hereto.
(k) Descriptive Headings. Headings of Sections and subsections of this Agreement are
for convenience of the parties only, and shall be given no substantive or interpretive effect
whatsoever.
(l) Notices. All notices, requests and other communications to any party hereunder
shall be in writing (including facsimile transmission) and shall be given,
if to Parent or Sub, to:
| x/x Xxxxxx Private Equity Partners LLC 000 Xxxxxxxx Xxxxx, Xxxxx 0000 Xxxxxx, Xxxxx 00000 |
||||
| Attention: | Xxxxxxx X. XxXxx | |||
| Xxxxxxx X. Xxxxx | ||||
| Facsimile: | (000) 000-0000 | |||
| Email: | xxxxxx@xxxxxxxxx.xxx | |||
| xxxxxx@xxxxxxxxx.xxx | ||||
with a copy to:
| Weil, Gotshal & Xxxxxx LLP 000 Xxxxxxxx Xxxxx, Xxxxx 000 Xxxxxx, Xxxxx 00000 |
||||
| Attention: | Xxxxxxx X. Xxxx | |||
| Facsimile: | (000) 000-0000 | |||
| Email: | xxxxxxx.xxxx@xxxx.xxx | |||
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if to Shareholder, to:
| Xxxxxx X. Xxxxxxxx | ||||
with a copy (which shall not constitute notice to Shareholder) to:
| Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx LLP Hearst Tower, 47th Floor 000 X. Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 |
||||
| Attention: | Xxxx X. Xxxxx | |||
| Fax: | (000) 000-0000 | |||
or such other address or facsimile number as such party may hereafter specify for the purpose by
notice to the other parties hereto. All such notices, requests and other communications shall be
deemed received on the date of receipt by the recipient thereof if received prior to 5 P.M. in the
place of receipt and such day is a business day in the place of receipt. Otherwise, any such
notice, request or communication shall be deemed not to have been received until the next
succeeding business day in the place of receipt.
(m) Drafting. The parties hereto have participated jointly in the negotiation and
drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as jointly drafted by the parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provision of this Agreement.
(n) GOVERNING LAW; ENFORCEMENT; JURISDICTION; WAIVER OF JURY TRIAL.
(i) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES
OF CONFLICTS OF LAWS THEREOF, EXCEPT TO THE EXTENT THE PROVISIONS OF THE GBCC ARE APPLICABLE.
(ii) 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 IN ANY NEW YORK STATE COURT OR ANY FEDERAL COURT LOCATED IN THE STATE
OF NEW YORK, THIS
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BEING IN ADDITION TO ANY OTHER REMEDY TO WHICH THEY ARE ENTITLED AT LAW OR IN EQUITY. IN
ADDITION, EACH OF THE PARTIES HERETO (A) CONSENTS TO SUBMIT ITSELF TO THE PERSONAL JURISDICTION OF
ANY NEW YORK STATE COURT OR ANY FEDERAL COURT LOCATED IN THE STATE OF NEW YORK IN THE EVENT ANY
DISPUTE ARISES OUT OF THIS AGREEMENT OR ANY TRANSACTION, (B) AGREES THAT IT WILL NOT ATTEMPT TO
DENY OR DEFEAT SUCH PERSONAL JURISDICTION BY MOTION OR OTHER REQUEST FOR LEAVE FROM ANY SUCH COURT,
AND (C) WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY ACTION RELATED TO OR ARISING OUT OF
THIS AGREEMENT OR ANY TRANSACTION.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date
first above written.
| MMC PRECISION HOLDINGS CORP. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| MMC PRECISION MERGER CORP. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| Xxxxxx X. Xxxxxxxx | ||||||
SIGNATURE
PAGE TO VOTING AND SUPPORT AGREEMENT
