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EXHIBIT 10.9
POST-MERGER VOTING AGREEMENT
VOTING AGREEMENT dated as of August 18, 1999 (the "Agreement") by and
among MS Acquisition Limited, a Texas limited partnership, (the "Nominating
Stockholder") Xxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxx, Xxxx X. Xxxxxx, Xxxxxxx X.
Xxxx (together with the Nominating Stockholder, the "Richmont Stockholders"),
Monroe & Company, LLC, a Delaware limited liability company and JLM Management
Company, LLC, a Delaware limited liability company (together with Monroe &
Company, LLC, "Monroe"). The Richmont Stockholders and Monroe collectively shall
be referred to herein as the "Stockholders."
WHEREAS, it is contemplated that Richmont Marketing Specialists Inc., a
Delaware corporation ("Richmont"), will merge with and into Xxxxxxx American
Corporation, a Delaware corporation ("Xxxxxxx") pursuant to an Agreement and
Plan of Merger dated as of the date hereof (the "Merger Agreement," and such
merger, the "Merger");
WHEREAS, the Richmont Stockholders own of record all of the issued and
outstanding shares of common stock, par value $.01 per share, of Richmont, which
in connection with the Merger will be converted into an aggregate of up to
6,705,551 shares of common stock, par value $.01 per share, of Xxxxxxx ("Xxxxxxx
Common Stock");
WHEREAS, Monroe has the right to vote an aggregate of 853,754 shares of
Xxxxxxx Common Stock and 223,800 shares of restricted Xxxxxxx Common Stock;
WHEREAS, the execution and delivery of this Agreement is a condition to
the consummation of the Merger.
NOW, THEREFORE, the parties hereto agree as follows:
1. Voting Agreement. Following the consummation of the Merger, at any
time that nominees for the election to the Board of Directors of Xxxxxxx are
submitted to the stockholders of Xxxxxxx, or a proposal to remove any incumbent
member of the Board of Directors of Xxxxxxx is submitted to such stockholders,
the parties hereto agree to vote, or cause to be voted, all Voting Securities
(defined below) then held by such party, whether beneficially or of record, or
any Voting Securities over which such party exercises voting control, in favor
of up to five nominees designated in writing by the Nominating Stockholders. For
the purpose of this agreement, "Voting Securities" shall mean any and all shares
of capital stock of Xxxxxxx, of any class or series, which shall have the right
at any time to vote in the election of Xxxxxxx'x directors, including without
limitation shares of Xxxxxxx Common Stock.
2. Designation of Nominees. The Nominating Stockholder hereby
designates the following individuals as nominees for election to the Board of
Directors of Xxxxxxx: Xxxx X.
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Xxxxxx, Xxxx X. Xxxxxx, Xxxxxxx X. Xxxx, Xxxxxx X. Xxxxxxxx and Xxxxxxx X.
Xxxxxxxx. In the event that any of the foregoing at any time are unable to serve
out their terms, resign from the Board of Directors of Xxxxxxx or decline to be
nominated for election or reelection, then the Nominating Stockholders shall
have the right to designate in writing a replacement nominee; provided, however,
that such replacement nominee shall be reasonably satisfactory to Monroe.
3. Representations and Warranties of the Stockholders. As of the date
hereof, each Stockholder represents and warrants to the other Stockholders as
follows:
(a) Ownership of Securities. The Stockholder is the record and
beneficial owner of, or exercises voting control of, the number of shares of
Voting Securities of Xxxxxxx set forth on the signature page to this Agreement
(the "Existing Securities"). The Holder has sole voting power and sole power to
issue instructions with respect to the voting of the Existing Securities, sole
power of disposition and the sole power of exercise or conversion, in each case
with respect to all of the Existing Securities. As of the date hereof, the
Stockholder will have sole voting power and sole power to issue instructions
with respect to the voting of all of the Existing Securities, sole power of
disposition and the sole power of exercise or conversion, in each case with
respect to all of the Existing Securities.
(b) Power; Binding Agreement. The Stockholder has full power
and authority to enter into and perform all of the Stockholder's obligations
under this Agreement. If Stockholder is an entity, the execution by Stockholder
of this Agreement and the performance of its obligations hereunder have been
duly authorized by all necessary corporate or partnership action on the part of
Stockholder and no other action on the part of Stockholder is required in
connection therewith. This Agreement has been duly and validly executed and
delivered by the Stockholder and constitutes a valid and binding agreement of
the Stockholder, enforceable against the Stockholder in accordance with its
terms.
(c) No Conflicts. 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 the Stockholder
and the consummation by the Stockholder of the transactions contemplated hereby,
other than filings which may be required pursuant to the Securities Exchange Act
of 1934, as amended, and the rules and regulations promulgated thereunder, and
neither the execution and delivery of this Agreement by the Stockholder nor the
consummation by the Stockholder of the transactions contemplated hereby nor
compliance by the Stockholder with any of the provisions hereof shall conflict
with or result in any breach of any applicable organizational documents of
Xxxxxxx applicable to the Stockholder or, if applicable, any organizational
documents of the Stockholder (including without limitation any charter documents
or partnership agreement), 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
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kind to which the Stockholder is a party or by which the Stockholder's
properties or assets may be bound or violate any order, writ, injunction,
decree, judgment, order, statute, rule or regulation applicable to the
Stockholder or any of the Stockholder's properties or assets.
4. Assignment; Benefits. This Agreement may not be assigned by any
party hereto without the prior written consent of each of the other parties.
This Agreement shall be binding upon, and shall inure to the benefit of, each of
the signatories hereto and their respective successors and permitted assigns.
5. Notices. Any notice required to be given hereunder shall be in
writing and shall be sent by facsimile transmission (confirmed by any of the
methods that follow), courier service (with proof of service), hand delivery or
certified or registered mail (return receipt requested and first-class postage
prepaid) to the address of such party set forth on the signature pages hereto or
to such other address as any party shall specify by written notice so given, and
such notice shall be deemed to have been delivered as of the date so delivered.
6. Specific Performance. The parties hereto agree that irreparable harm
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with its 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 hereof in any court of the United States or any state
thereof having jurisdiction, this being in addition to any other remedy to which
they are entitled at law or in equity.
7. Amendment. This Agreement may not be amended or modified, except by
an instrument in writing signed by or on behalf of each of the parties hereto.
This Agreement may not be waived by any party hereto, except by an instrument in
writing signed by or on behalf of the party granting such waiver.
8. Governing Law. This Agreement shall be governed by, construed and
enforced in accordance with the laws of the State of Delaware, without regard to
its rules regarding conflict of laws.
9. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same agreement.
10. Termination. This Agreement shall commence on the date hereof and
shall terminate upon the earliest to occur of: (i) the date on which the
Nominating Stockholder and Messrs. Xxxxxxxx, Xxxxxx and Xxxxxx cease to own in
the aggregate at least 35% of the total outstanding shares of Voting Securities
of Xxxxxxx, or (ii) the date on which the Stockholders cease to own, or have the
right to exercise voting control over, shares of Voting Securities of Xxxxxxx
representing more than 50% of the total voting power of all outstanding Voting
Securities of Xxxxxxx.
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[VOTING AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, this Agreement has been executed by or on behalf of
each of the parties hereto, all as of the date first above written above.
MS ACQUISITION LIMITED
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
Title:
Existing Securities:
Class:
-------------------------
Number of Shares:
--------------
Address:
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[VOTING AGREEMENT SIGNATURE PAGE]
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Xxxxxx X. Xxxxxxxx
Existing Securities:
Class: Common
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Number of Shares: 1,259,017
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Address:
0000 Xxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Existing Securities:
Class: Common
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Number of Shares: 301,721
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Address:
0000 Xxxx Xxxxx Xxxxx
Xxxxx, Xxxxx 00000
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
Existing Securities:
Class: Common
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Number of Shares: 301,721
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Address:
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[VOTING AGREEMENT SIGNATURE PAGE]
/s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
Existing Securities:
Class: Common
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Number of Shares: 819,759
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Address:
0000 Xxxxxxxxx Xxxxx
Xxxxxx, XX 00000
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[VOTING AGREEMENT SIGNATURE PAGE]
MONROE & COMPANY, LLC
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Manager
Existing Securities:
Class:
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Number of Shares:
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Address:
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JLM MANAGEMENT COMPANY, LLC
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Title:
Existing Securities:
Class:
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Number of Shares:
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Address:
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