VOTING AGREEMENT
Exhibit 10.1
EXECUTION VERSION
This VOTING AGREEMENT dated as of July 21, 2010 (this “Agreement”) is by and among XXXXX,
INC., a North Carolina corporation (“Xxxxx”) and Xxxxxxx X. Xxxxxxxx, individually (“MAW”),
Xxxxxxxx X. Xxxxxxxx, individually (“PAW”) and Xxxxxxx X. Good (“CEG”) in his
capacity as: Trustee for the Xxxxxxxxx Xxx Xxxxxxxx Trust dated 12/21/92; Trustee for the Xxxxxxxxx
Xxx Xxxxxxxx Trust dated 12/31/90; Trustee for the Xxxxxxx X. Xxxxxxxx 2010 Trust FBO Xxxxxxxx
Xxxxxxx Xxxx; Trustee for the Xxxxxxx X. Xxxxxxxx 2010 trust FBO Xxxxxxxx Xxx Xxxxxxxx; Trustee for
the Xxxxxxx X. Xxxxxxxx 2010 GRAT; Trustee for the Xxxxxxx X. Xxxxxxxx SOH GRAT; Vice President
with the authority to vote the shares held by Xxxxxxxx Enterprises, Inc. and Vice President with
the authority to vote the shares held by MAW Associates, LP (the “CEG Entities”).
RECITALS
A. Lance and Lima Merger Corp., a Pennsylvania corporation (“Merger Sub”) have entered
into an Agreement and Plan of Merger dated July 21, 2010 (the “Merger Agreement”) with
Xxxxxx’x of Hanover, Inc., a Pennsylvania corporation (“Xxxxxx’x”), pursuant to which
Merger Sub will merge with and into Xxxxxx’x.
B. As a condition to Lance’s willingness to enter into the Merger Agreement, Xxxxx has
required that MAW, PAW and CEG (the “Voters”) enter into this Agreement.
X. XXX owns and has the right to vote in his individual capacity, 84,965 shares of Class A
Common Stock of Xxxxxx’x. PAW owns and has the right to vote in her individual capacity, 7,350
shares of Class A Common Stock of Xxxxxx’x. CEG has the right to vote 53,175 shares of Class A
Common Stock of Xxxxxx’x owned by the CEG Entities. A total of 145,490 shares are voted by MAW,
PAW and CEG (collectively, the “Subject Shares”).
NOW, THEREFORE, intending to be legally bound, the parties hereto agree as follows:
1. Agreement to Vote Shares; Additional Purchases.
1.1. Agreement to Vote Shares. At every meeting of the shareholders of Xxxxxx’x, and
every adjournment or postponement thereof, at which the approval of the Merger Agreement and/or the
transactions contemplated thereby are considered, and on every action or approval by written
consent of the shareholders of Xxxxxx’x with respect to such matters, the Voters shall appear at
such meeting and vote (or cause to be voted), solely as a shareholder of Xxxxxx’x, all the Subject
Shares (a) in favor of the adoption and approval of the Merger Agreement and/or the transactions
contemplated thereby and (b) against any action or agreement that would reasonably be expected to
prevent, prohibit, or materially delay the consummation of, or materially change the terms and
conditions of, the Merger. Notwithstanding the foregoing, the Voters’ obligation under this
Section 1.1 shall be stayed if the Merger Agreement is amended or breached in a material respect by
Xxxxx.
1.2. Agreement to Retain Shares. The Voters shall not, directly or indirectly, sell,
transfer, contract to sell, assign, exchange, hypothecate, pledge, encumber, grant a security
interest in, hedge or otherwise dispose of any or all of the Subject Shares or any interest in the
Subject Shares, unless he or she retains the right to vote such shares in accordance with Section
1.1.
2. Representations and Warranties of the Voters. The Voters (i) have the exclusive
right to vote all the Subject Shares at any and all meetings of the shareholders of Xxxxxx’x for
whatever purpose called or held, and in any and all proceedings whether at meetings of the
shareholders of Xxxxxx’x or otherwise, and to give written consents in lieu of voting the Subject
Shares at a meeting, on any and all matters for which the vote or written consent of the Class A
Shareholders is required or authorized by law, and is entitled to exercise all rights of every kind
granted to the Class A Shareholders; and (ii) have full power and authority to execute, deliver and
perform the terms of this Agreement. This Agreement has been duly executed and delivered by the
Voters and constitutes the legal, valid and binding obligation of the Voters, enforceable against
the Voters in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, liquidation, dissolution, moratorium or other similar laws relating to or affecting
the rights of creditors generally and to general principles of equity (regardless of whether
considered in proceedings at law or in equity). The execution, delivery and performance of this
Agreement does not violate or conflict with the articles of incorporation or bylaws of Xxxxxx’x.
3. Termination. This Agreement shall terminate and shall have no further force or
effect upon the earlier to occur of (i) the Effective Date under the Merger Agreement, or (ii) the
termination of the Merger Agreement pursuant to the terms thereof (the “Expiration Date”).
4. Miscellaneous.
4.1. Binding Effect; Third Party Beneficiaries. This Agreement and all of the
provisions hereof shall be binding upon, and shall inure to the benefit of, the parties hereto and
their respective successors, heirs, executors, administrators and permitted assigns, as the case
may be. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by any party hereto without the prior written consent of the other party, except for an
assignment to any lender to Xxxxx as security for obligations to such lender. Any attempted
assignment in violation of this Section 4.1 shall be null and void. This Agreement shall not
confer any rights on any person who is not a party to this Agreement other than the other parties
constituting “Sellers” under the Purchase Agreement.
4.2. Notices. Any notice, statement, demand or other communication required to be
given under this Agreement shall be in writing, sent by certified mail, postage prepaid, return
receipt requested, or by facsimile transmission, receipt electronically confirmed, or by
nationally-recognized overnight courier, receipt confirmed. Notices to Xxxxx and the Voters shall
be addressed to the below addresses, or to such other addresses and to the attention of such other
person as Xxxxx or the Voters, as applicable, may designate by written notice to the other party in
the manner provided in this Section.
| To Xxxxx: | Xxxxx, Inc. | |||
| 00000 Xxxxxxxxxx Xxxxxxxxx Xxxxx |
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| Xxxxx 000 | ||||
| Xxxxxxxxx, XX 00000 | ||||
| Facsimile No.: (000) 000-0000 and (000) 000-0000 | ||||
| With a copy to: | K&L Gates LLP | |||
| Hearst Tower, 47th Floor | ||||
| 000 Xxxxx Xxxxx Xxxxxx | ||||
| Xxxxxxxxx, XX 00000 | ||||
| Attn.: Xxxx Xxxxxx | ||||
| Facsimile No.: (000) 000-0000 | ||||
| To MAW or PAW: | Xxxxxxx X. Xxxxxxxx | |||
| c/x Xxxxxx’x of Hanover, Inc. | ||||
| 0000 Xxxx Xxxxxx | ||||
| Xxxxxxx, XX 00000 | ||||
| Facsimile No.: (000) 000-0000 | ||||
| To CEG: | Xxxxxxx X. Good | |||
| c/x Xxxxxx’x of Hanover, Inc. | ||||
| 0000 Xxxx Xxxxxx | ||||
| Xxxxxxx, XX 00000 | ||||
| Facsimile No.: (000) 000-0000 | ||||
| With a copy to: | Xxxxxx Xxxxxxx Xxxxxx & Xxxxxxx, LLC | |||
| 000 Xxxxx Xxxxxx, 00xx Xxxxx | ||||
| Xxxxxxxxxx, XX 00000 | ||||
| Attn: Xxxx X. Xxxxxx, III, Esquire | ||||
| Facsimile No.: (000) 000-0000 |
Any notice, statement, demand or other communication shall be deemed given (i) on the date
three business days after it shall have been mailed, if sent by certified mail, (ii) on the
business day it shall have been sent by facsimile transmission (unless sent on a non-business day
or after business hours in which event it shall be deemed given on the following business day), or
(iii) on the next business day if it shall have been sent by a nationally-recognized overnight
courier service.
4.3. Entire Agreement; Amendment. This Agreement (and the Merger Agreement) represent
the entire understanding of the parties with respect to the subject matter hereof and supersede all
prior agreements and undertakings, both written and oral, between the parties hereto with respect
to the subject matter hereof. No termination, waiver, modification, amendment or supplement to
this Agreement shall be binding unless in writing and signed by Xxxxx and all of the Voters.
4.4. Governing Law. This Agreement shall be governed by and construed in accordance
with the internal laws of the Commonwealth of Pennsylvania without giving effect to its principles
of conflicts of law. Each of the parties hereto hereby irrevocably submits to the exclusive
jurisdiction of any Pennsylvania state or federal court of appropriate jurisdiction in any
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action arising out of or relating to this Agreement and hereby irrevocably agrees that all
claims in respect of such action may be heard and determined in such Pennsylvania state or federal
court. Each of the parties hereto hereby irrevocably waives, to the fullest extent it may
effectively do so, the defense of an inconvenient forum to the maintenance of such action. The
parties further agree, to the extent permitted by applicable law, that any final and nonappealable
judgment against any of them in any action referred to above shall be conclusive and may be
enforced in any other jurisdiction within or outside the United States by suit on the judgment, a
certified copy of which shall be conclusive evidence of the fact and amount of such judgment. Each
party waives, to the fullest extent permitted by applicable law, any right it may have to a trial
by jury in respect of any action arising out of or relating to this Agreement.
4.5. Interpretation. The section headings contained in this Agreement are inserted
for convenience of reference only and will not affect the meaning or interpretation of this
Agreement. All references to Sections contained herein mean Sections of this Agreement unless
otherwise stated and the neuter gender shall include the feminine or masculine gender. All
capitalized terms defined herein are equally applicable to both the singular and plural forms of
such terms. The terms “hereof”, “herein”, and “herewith” and words of similar import shall, unless
otherwise stated, be construed to refer to this Agreement as a whole and not to any particular
provision of this Agreement. The word “including” and words of similar import when used in this
Agreement shall mean “including without limitation” unless the context otherwise requires or unless
otherwise specified. All references in this Agreement to any period of days shall be deemed to be
to the relevant number of calendar days unless otherwise specified.
4.6. 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 conditions
and provisions 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.
4.7. Further Assurances. The Voters hereby covenant and agree that at any time and
from time to time after the execution of this Agreement through the Expiration Date, they shall,
upon the request of Xxxxx, do, execute, acknowledge and deliver, or cause to be done, executed,
acknowledged and delivered, all such further acts or documents as may be reasonably required to
carry out the transactions contemplated by this Agreement.
4.8. Counterparts; Facsimile. This Agreement may be executed in any number of
counterparts and by different parties to this Agreement in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken together shall constitute
one and the same agreement. Delivery of an executed counterpart of a signature page to this
Agreement by facsimile or pdf transmission shall be effective as delivery of a manually executed
counterpart. Any party executing this Agreement by facsimile or pdf transmission shall promptly
deliver a manually executed counterpart, provided that any failure to do so shall not
affect the validity of the counterpart executed by facsimile or pdf transmission.
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4.9. Specific Performance. The Voters recognize and acknowledge that a breach of
covenants or agreements contained in this Agreement will cause Xxxxx to sustain irreparable damage
for which Xxxxx would not have an adequate remedy at law for money damages. Therefore, the Voters
agree that, in the event of any such breach or threatened breach, Xxxxx shall be entitled to seek
and obtain (a) a decree or order of specific performance to enforce the observance and performance
of such covenant or obligation and (b) an injunction restraining such breach or threatened breach.
The Voters further agree to waive any requirement for the securing or posting of any bond in
connection with the obtaining of any such injunctive or other equitable relief. Xxxxx shall be
entitled to recover its attorneys’ fees and all of its costs and expenses in enforcing this
Agreement.
4.10. No Waiver. No failure or delay on the part of any of the parties in exercising
any right or power hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power preclude any other right or power.
[Signatures appear on next page]
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IN WITNESS WHEREOF, the parties have caused this Voting Agreement to be duly executed on the
date and year first above written.
| Xxxxx, Inc. | ||||||
| By: | /s/ Xxxxx X. Xxxxxx | |||||
| Name: | ||||||
| Title: | President and Chief Executive Officer | |||||
| /s/ Xxxxxxx X. Xxxxxxxx | ||||||
| Xxxxxxx X. Xxxxxxxx, individually | ||||||
| /s/ Xxxxxxxx X. Xxxxxxxx | ||||||
| Xxxxxxxx X. Xxxxxxxx, individually | ||||||
| /s/ Xxxxxxx X. Good | ||||||
| Xxxxxxx X. Good, in his capacity as Trustee or Vice President of the CEG Entities | ||||||
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