VOTING AGREEMENT
THIS VOTING AGREEMENT ("Agreement") is being executed and
delivered as of March 31, 1999, by Xxxxxx Xxxxxxxxx XxXxxxx, Inc.
("Shareholder") in favor of and for the benefit of Brera SCI, LLC, a
Delaware limited liability company (the "Acquiror").
WHEREAS, Shareholder controls the right to vote One Million
Sixty-One Thousand Two Hundred (1,061,200) shares (the "Shares") of common
stock of Safety Components International, Inc., a Delaware corporation
(the "Company").
WHEREAS, Acquiror and the Company intend to execute an Investment
Agreement (the "Investment Agreement") pursuant to which the Acquiror will
purchase Series A Convertible Preferred Stock of the Company.
WHEREAS, Acquiror has required, as a condition to entering into
the Investment Agreement, that Shareholder enter into this Agreement.
NOW, THEREFORE, in order to induce Acquiror to enter into the
transactions contemplated by the Investment Agreement, and in further
consideration of the mutual covenants and agreements contained herein, the
parties agree as follows:
Section 1. Representation and Warranties. Shareholder represents
and warrants to Acquiror that:
(a) Shareholder is the holder and beneficial owner of the
Shares and has good and valid title to the Shares, free and clear of any
liens, pledges, security interests, adverse claims, equities, options,
proxies, charges, encumbrances or restrictions of any nature. Except as
provided in this Agreement, Shareholder has not appointed or granted any
proxy or entered into a voting agreement, which appointment, agreement or
grant is still effective, with respect to any of the Shares.
(b) This Agreement and the Proxy (defined below) (the
"Transaction Documents") (i) have been, or when executed will be, duly and
validly executed on behalf of Shareholder and (ii) constitute, or when
executed will constitute, valid and binding obligations of Shareholder,
enforceable against Shareholder in accordance with their respective terms,
subject to laws of general application relating to bankruptcy, insolvency
and the relief of debtors, and to rules of law governing specific
performance, injunctive relief and other equitable remedies.
(c) Shareholder is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation. The person executing the Transaction Documents on behalf of
Shareholder has full power and authority to execute the Transaction
Documents on behalf of Shareholder, and Shareholder has the requisite
corporate power and authority to perform its obligations under the
Transaction Documents. Neither the execution and delivery of any of the
Transactional Agreement nor the performance of Shareholder's obligations
under any of the Transaction Documents will violate any provision of the
articles of incorporation or bylaws of Shareholder.
(d) None of the execution, delivery or performance of any
Transaction Document will directly or indirectly, (i) result in any
violation or breach of any agreement or other instrument to which
Shareholder is a party or by which Shareholder or any of the Shares is
bound; or (ii) result in a violation of any law, rule, regulation, order,
judgment or decree to which Shareholder or any of the Shares is subject.
The execution and delivery of this Agreement by Shareholder does not, and
the performance of this Agreement by Shareholder shall not, require any
consent, approval, authorization or permit of, or filing with or
notification to, any governmental entity.
(e) The representations and warranties contained in this
Shareholder Agreement will be accurate in all material respects at all
times through the Expiration Date (defined below) as if made on that date.
Section 2. Agreement to Vote Shares. During the period from
the date of this Shareholder Agreement through the earlier of (i) the date
upon which the Investment Agreement is validly terminated, or (ii) the date
upon which the shareholders of the common stock of the Company approve the
transactions contemplated by the Investment Agreement (including without
limitation the vesting of voting rights with respect to the Series A
Convertible Preferred Stock) (the "Expiration Date"), Shareholder shall
cause any holder of record of the Shares or any New Shares to vote such
Shares in favor of the transactions contemplated by the Investment
Agreement including, without limitation, (A) the approval of the vesting of
voting rights in the Series A Convertible Preferred Stock, (B) the issuance
of common stock upon the exercise of the conversion rights set forth in the
Series A Convertible Preferred Stock and (C) increasing the number of
authorized shares of Common Stock of the Corporation from 10,000,000 to
30,000,000 shares, at every meeting of the shareholders of the Company,
however called (and every adjournment or postponement thereof), or by
written consent in lieu of such a meeting or otherwise.
Section 3. Irrevocable Proxy. Concurrently with the execution
of this Agreement, Shareholder agrees to deliver to Acquiror a proxy in the
form attached hereto as Exhibit A (the "Proxy"), which shall be irrevocable
to the fullest extent permitted by law, with respect to the Shares, and
shall be deemed to be coupled with an interest. Shareholder understands
and agrees that such proxy shall be used in the event that Shareholder
fails or is unable to vote the Shares or the New Shares, if any, in
accordance with Section 2.
Section 4. Transfer and Encumbrance. Shareholder agrees not to
transfer, sell, offer or otherwise dispose of or encumber any of the Shares
or any new Shares into a voting trust or grant a proxy to enter into a
voting agreement or similar agreement with respect to any of the Shares
from the date of this Agreement through the Expiration Date, unless such
transferee agrees to assume Shareholder's obligations under this Agreement
in a form reasonably acceptable to Acquiror.
Section 5. Additional Purchases. Shareholder agrees that any
shares of capital stock of the Company acquired by Shareholder on or after
the date of this Agreement shall be subject to the terms of this Agreement
to the same extent as if they constituted Shares. For purposes of this
Agreement, the term "New Shares" shall mean any shares of capital stock of
the Company that Shareholder purchases or otherwise acquires beneficial
ownership of, or acquires the right to vote or share in the voting of,
after the execution of this Agreement, whether through the exercise of any
option or warrant to purchase such capital stock, or otherwise.
Section 6. No Ownership Interest. Nothing contained in this
Agreement shall be deemed to vest in Acquiror any direct or indirect
ownership or incidence of ownership of or with respect to any Shares or New
Shares. All rights, ownership, and economic benefits of and relating to
the Shares and to options to acquire Shares shall remain and belong to
Shareholder, and Acquiror shall have no authority to manage, direct,
superintend, restrict, regulate, govern, or administer any of the policies
or operations of the Company or exercise any power or authority to direct
Shareholder in the voting of any of the Shares, except as otherwise
expressly provided herein.
Section 7. Specific Performance. Shareholder agrees that in
the event of any breach or threatened breach by Shareholder of any
covenant, obligation or other provision contained in this Agreement,
Acquiror shall be entitled (in addition to any other remedy that may be
available to it) to (a) a decree or order of specific performance or
mandamus to enforce the observance and performance of such covenant,
obligation or other provision, and (b) an injunction restraining such
breach or threatened breach.
Section 8. Notices. All notices and other communications
pursuant to this Agreement shall be in writing and shall be deemed to be
sufficient if contained in a written instrument and shall be deemed given
if delivered personally or sent by nationally recognized overnight courier
to the parties at the following addresses (or at such other address for a
party as shall be specified by like notice):
If to Acquiror:
Brera SCI, LLC
c/o Brera Capital Partners, LLC
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Jun Tsusaka
Tel.: 000-000-0000
Fax.: 000-000-0000
with a copy to:
Skadden, Arps, Slate,
Xxxxxxx & Xxxx (Illinois)
000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxx
Tele 000-000-0000
Fax: 000-000-0000
if to Shareholder:
Xxxxxx Xxxxxxxxx XxXxxxx, Inc.
000 Xxxxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
All such notices and other communications shall be deemed to have
been received (a) in the case of personal delivery, on the date of such
delivery, (b) in the case of a telecopy, when the party receiving such copy
shall have confirmed receipt of the communication, and (c) in the case of
delivery by nationally recognized overnight courier, on the business day
following dispatch.
Section 9. Severability. If any provision of this Agreement or
any part of any such provision is held under any circumstances to be
invalid or enforceable in any jurisdiction, then (a) such provision or part
thereof shall, with respect to such circumstances and in such jurisdiction,
be deemed amended to conform to applicable laws so as to be valid and
enforceable to the fullest possible extent, (b) the invalidity or
unenforceability of such provision or part thereof under such circumstances
and in such jurisdiction shall not affect the validity or enforceability of
such provision or part thereof under any other circumstances or in any
other jurisdiction, and (c) such invalidity of enforceability of such
provision or part thereof shall not affect the validity or enforceability
of the remainder of such provision or the validity or enforceability of any
other provision of this Agreement. Each provision of this Agreement is
separable from every other provision of this Agreement, and each part of
each provision of this Agreement is separable from every other part of such
provision.
Section 10. Governing Law. This Agreement shall be construed in
accordance with, and governed in all respects by, the laws of the State of
New York (without giving effect to principles of conflicts of laws that
might refer the governance or the construction of this Agreement to the law
of another jurisdiction).
Section 11. Waiver. No failure on the part of Acquiror to
exercise any power, right, privilege or remedy under this Agreement, and no
delay on the part of Acquiror in exercising any power, right, privilege or
remedy under this Agreement, shall operate as a waiver of such power,
right, privilege or remedy; and no single or partial exercise of any other
such power, right, privilege, or remedy shall preclude any other or further
exercise thereof or of any other power, right, privilege or remedy.
Acquiror shall not be deemed to have waived any claim arising out of this
Agreement, or any power, right, privilege or remedy under this Agreement,
unless the waiver of such claim, power, right, privilege or remedy is
expressly set forth in a written instrument duly executed and delivered on
behalf of such party; and any such waiver shall not be applicable or have
any effect except in the specific instance in which it is given.
Section 12. Captions. The captions in this Agreement are for
convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction
or interpretation of this Agreement.
Section 13. Further Assurances. Shareholder shall execute or
cause to be delivered to Acquiror or the Company such instruments and other
documents and shall take such other actions as Acquiror may reasonably
request to effectuate the intent and purposes of this Agreement.
Section 14. Entire Agreement. This Agreement sets forth the
entire understanding of Shareholder and Acquiror relating to the subject
matter hereof and supersedes all prior agreements and understandings
between such parties relating to the subject matter hereof.
Section 15. Amendments. This Agreement may not be amended,
modified, altered or supplemented other than by means of a written
instrument duly executed and delivered on behalf of Acquiror and
Shareholder.
Section 16. Assignment. This Agreement and all obligations of
the Shareholder hereunder are personal to Shareholder and may not be
transferred or assigned by Shareholder at any time. Acquiror may assign
its rights under this Agreement to its affiliates at any time.
Section 17. Binding Nature. Subject to Section 16, this
Agreement will be binding upon Shareholder and Shareholder's
representatives, executors, administrators, estate, heirs, successors and
assigns, and will inure to the benefit of Acquiror and its successors and
assigns. Without limiting the generality of anything contained in Section
4, if any person or entity shall acquire Shares or New Shares from
Shareholder in any manner, whether by operation or law or otherwise, such
Shares shall be held subject to all the terms and provisions of this
Agreement, and by taking and holding such Shares, such person or entity
shall be conclusively deemed to have agreed to be bound and to comply with
all the terms and provisions of this Agreement. Without limiting the
foregoing, Shareholder agrees that the obligations of Shareholder hereunder
shall not be terminated by operation of law, whether by death or incapacity
of Shareholder, or, in the case of a trust, by the death or incapacity of
any trustee or the termination of such trust.
Section 18. Attorneys' Fees and Expenses. If any legal action
or other legal proceeding relating to the enforcement of any position of
this Agreement is brought against Shareholder, the prevailing party shall
be entitled to recover reasonable attorneys' fees, costs and disbursements
including without limitation at the pre-trial and appellate stages of any
proceeding (in addition to any other relief to which the prevailing party
may be entitled).
Section 19. Survival. The representations and warranties
contained in this Agreement shall survive the Expiration Date.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
VOTING AGREEMENT as of the date first written above.
XXXXXX XXXXXXXXX XxXXXXX, INC.
/s/ Xxxxxx X. Xxxxxx
______________________________
Name: Xxxxxx X. Xxxxxx
Title: Chairman
SHARES OF THE COMPANY
BENEFICIALLY OWNED:
1,061,200 shares of the
Common Stock of the Company
AGREED AND ACCEPTED:
BRERA SCI, LLC
By: /s/ Jun Tsusaka
________________________
EXHIBIT A
LIMITED IRREVOCABLE PROXY
The undersigned shareholder of Safety Components International,
Inc., a Delaware corporation (the "Company"), hereby irrevocably appoints
Brera SCI, LLC, a Delaware limited liability company and its affiliates,
and each of them, the attorneys and proxies of the undersigned, with full
power of substitution and resubstitition, to vote the shares of capital
stock of the Company which the undersigned is entitled to vote at any
meeting of the shareholders of the Company (and every adjournment or
postponement thereof) or by written consent in lieu of such a meting or
otherwise, which shares are listed below (the "Shares"), and any and all
other shares of capital stock of the Company acquired by the undersigned
(or which the undersigned is otherwise entitled to vote) on or after the
date hereof (the "New Shares"), but only with respect to approval of the
consummation of the transactions contemplated by the Investment Agreement
including, without limitation, (A) the vesting of voting rights in the
Series A Convertible Preferred Stock, (B) the issuance of common stock upon
the exercise of the conversion rights set forth in the Series A Convertible
Preferred Stock and (C) increasing the number of authorized shares of
Common Stock of the Corporation from 10,000,000 to 30,000,000 shares (the
"Identified Matters"). Upon the execution hereof, all prior proxies given
by the undersigned with respect to the Shares and the New Shares, if any,
and any and all other shares or securities issued or issuable in respect
thereof on or after the date hereof are hereby revoked, but only to the
extent that they relate to the Identified Matters, and no subsequent
proxies will be given with respect to the Identified Matters. This proxy
is irrevocable and coupled with an interest and is granted in connection
with that certain Voting Agreement, dated as of the date hereof, executed
by the undersigned shareholder in favor of Acquiror, and is granted in
consideration of Acquiror entering into the Investment Agreement. Terms
used but not defined in this proxy shall have the meanings given to them in
the Voting Agreement. The attorneys and proxies named above will be
empowered at any time prior to the termination of the Investment Agreement
(i) to exercise all voting and other rights of the undersigned with respect
to the Shares and the New Shares, if any (including, without limitation,
the power to execute and deliver written consents with respect to the
Shares and the New Shares, if any), but only with respect to the Identified
Matters, at every meeting of the shareholders of the Company (and every
adjournment or postponement thereof) or by written consent in lieu of such
a meeting, or otherwise, and (ii) to vote the Shares and the New Shares, if
any, in favor of approval of the Identified Matters and the other actions
and transactions contemplated by the Investment Agreement (including,
without limitation, any amendment of the Company's articles of
incorporation required in connection therewith).
Any obligations of the undersigned pursuant to this Limited Irrevocable
Proxy shall be binding upon the successors and assigns of the undersigned.
Dated as of: March 31, 1999
XXXXXX XXXXXXXXX XxXXXXX, INC.
/s/ Xxxxxx X. Xxxxxx
______________________________
Name: Xxxxxx X. Xxxxxx
Title: Chairman
SHARES WHICH SHAREHOLDER
IS ENTITLED TO VOTE:
1,061,200 shares of the common stock,
par value $.01 per share, of Safety Components
International, Inc.
