Exhibit 2.2
VOTING AGREEMENT
VOTING AGREEMENT, dated as of June 12, 2002 (this "Agreement")
by and among Vector Merger Corp., a New Jersey corporation ("Merger Sub"); each
of Xxxx Xxxxxx, Xxxxx Xxxxxx, as Trustee for Xxxxxxx Xxxxxx Investment Trust
d/t/d 12/10/96, Xxxxx Xxxxxx, as Trustee for the Xxxxxx Xxxxxx Investment Trust
d/t/d 12/10/96, Xxxxxxx Xxxxxxx, Xxxxxxx Xxxxxxx and Xxxxx Xxxxxxxx (each a
"Stockholder" and collectively, the "Stockholders"); and, for purposes of
Section 9 only, Vestcom International, Inc., a New Jersey corporation (the
"Company").
RECITALS
Merger Sub, the Company and the other parties named therein
propose to enter into an Agreement and Plan of Merger dated as of the date
hereof (as the same may be amended or supplemented, the "Merger Agreement")
providing for the merger of Merger Sub with and into the Company, in which the
Company will be the surviving entity, upon the terms and subject to the
conditions set forth in the Merger Agreement. Capitalized terms used but not
defined herein shall have the meanings set forth in the Merger Agreement as
entered into on the date hereof.
As of the date hereof, the Stockholders are the record and
beneficial owner of an aggregate of 1,829,800 shares of common stock of the
Company (the "Company Common Stock"), par value $.01 per share (the "Existing
Shares" and, together with any shares of Company Common Stock acquired by the
Stockholders after the date hereof, whether upon the exercise of warrants,
options or rights, the conversion or exchange of any Existing Shares or
convertible or exchangeable securities or by means of purchase, dividend,
distribution or otherwise, the "Subject Shares").
As an inducement and a condition to entering into the Merger
Agreement, Merger Sub has required that the Company and the Stockholders agree,
and the Company and the Stockholders have agreed, to enter into this Agreement.
The Stockholders, the Company and Merger Sub desire to set
forth their agreement with respect to the voting of the Subject Shares in
connection with the Merger Agreement and the Transactions upon the terms and
subject to the conditions set forth herein.
AGREEMENT
To implement the foregoing and in consideration of the mutual
agreements contained herein, the parties agree as follows:
1. Covenants of the Stockholders. Until the termination of
this Agreement in accordance with Section 6, the Stockholders agree, severally
and not jointly, as follows:
(a) Agreement to Vote. At any meeting of the shareholders of
the Company called for purposes that include approval of the Merger Agreement,
the Transactions or any Acquisition Transaction, however called, or at any
adjournment thereof, or in connection with any written consent of the holders of
shares of Company Common Stock, or in any other circumstances in which the
Stockholders are entitled to vote, consent or give any other approval with
respect to the Merger Agreement, the Transactions or any Acquisition
Transaction, each Stockholder hereby irrevocably agrees to vote (or cause to be
voted) its Subject Shares in favor of the adoption and approval of the Merger
Agreement and the Transactions and the approval of the terms thereof and each of
the other actions contemplated by this Agreement or the Merger Agreement, and
any amendments hereto or thereto.
At any meeting of shareholders of the Company, however called,
or at any adjournment thereof, or in connection with any written consent of the
holders of shares of Company Common Stock or in any other circumstances in which
the Stockholders are entitled to vote, consent or give any other approval,
except as otherwise agreed to in writing in advance by Merger Sub, each
Stockholder shall vote (or cause to be voted) its Subject Shares against the
following actions:
(i) any action or agreement that would result in a
breach of any covenant, representation or warranty or any other obligation or
agreement of the Company under the Merger Agreement or of the Stockholders
hereunder, or that would result in any of the conditions set forth in the Merger
Agreement not being satisfied; or
(ii) any action or agreement that could reasonably be
expected to impede, interfere with, delay, postpone or attempt to discourage the
Merger and/or the other Transactions, including, but not limited to: (A) the
adoption by the Company of a proposal regarding (1) the acquisition of the
Company by merger, tender offer or otherwise by any person other than Merger Sub
or any designee thereof (a "Third Party"), or any other merger, combination or
similar transaction with any Third Party; (2) the acquisition by a Third Party
of 5% or more of the assets of the Company and its subsidiaries, taken as a
whole (whether by the acquisition of assets or securities of, or any merger,
consolidation or other business combination involving, the Company or any of its
subsidiaries); (3) the acquisition by a Third Party of 5% or more of the
outstanding shares of Company Common Stock, or (4) the repurchase by the Company
and/or any of its subsidiaries of 5% or more of the outstanding shares of
Company Common Stock; (B) any amendment of the Company's Certificate of
Incorporation or By-laws or other proposal or transaction involving the Company
or any of its subsidiaries, which amendment or other proposal or transaction
could in any manner reasonably be expected to impede, delay, prevent or nullify
the Merger, the Merger Agreement or the Transactions, or change in any manner
the rights and privileges, including, without limitation, voting rights of any
class of the Company's capital stock; (C) any change in the management or board
of directors of the Company that could in any manner reasonably be expected to
impede, delay, prevent or nullify the Merger, the Merger Agreement or the
Transactions; (D) any change in the present capitalization or dividend policy of
the Company; or (E) any other material change in the Company's corporate
structure or business. Each Stockholder shall not commit or agree to vote (or
cause to be voted) its Subject Shares in favor of any such action.
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(b) PROXIES. AS SECURITY FOR THE AGREEMENTS OF THE
STOCKHOLDERS PROVIDED FOR HEREIN, EACH STOCKHOLDER HEREBY GRANTS TO MERGER SUB
AN IRREVOCABLE PROXY TO VOTE ITS SUBJECT SHARES AS INDICATED IN SECTION 1(a)
ABOVE IN THE FORM ATTACHED HERETO AS EXHIBIT A. THIS PROXY SHALL BE IRREVOCABLE
DURING THE TERM OF THIS AGREEMENT AND COUPLED WITH AN INTEREST AND EACH OF THE
STOCKHOLDERS AND MERGER SUB WILL TAKE SUCH FURTHER ACTION OR EXECUTE SUCH OTHER
INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE THE INTENT OF THIS PROXY. THE
STOCKHOLDERS HEREBY REVOKE ANY PROXY PREVIOUSLY GRANTED BY THE STOCKHOLDERS WITH
RESPECT TO THE SUBJECT SHARES.
(c) Transfer Restrictions. Each Stockholder agrees not to (i)
tender pursuant to a tender offer, (ii) otherwise sell, transfer, pledge,
encumber, assign or otherwise dispose of or hypothecate (including by operation
of law, by gift or by contribution or distribution to any trust or similar
instrument or to any beneficiaries of such Stockholder or by any other means
(collectively, "Transfer")), or enter into any contract, option or other
arrangement or understanding (whether directly or indirectly, and including any
profit sharing arrangement) with respect to the Transfer of any of its Subject
Shares other than pursuant to the terms hereof, the Merger Agreement and the
Contribution Agreement, (iii) relinquish control of the voting power with
respect to its Subject Shares, enter into any voting trust, voting arrangement
or understanding with respect to its Subject Shares, whether by proxy, voting
agreement or otherwise, or grant any proxy (except as provided in this
Agreement) or (iv) take any action that could reasonably be expected to make any
of such Stockholders' representations or warranties contained herein untrue or
incorrect or could reasonably be expected to have the effect of preventing or
disabling such Stockholder from performing any of its obligations hereunder;
provided, that any Stockholder may Transfer any of its Subject Shares to a
Family Member (as defined below) so long as such Stockholder continues to retain
sole control of the voting power with respect to the Subject Shares that are the
subject of such Transfer and such Transfer does not otherwise violate or cause a
breach of such Stockholder's obligations under the Contribution Agreement;
provided, further that, in the event of a Stockholder's death during the term of
this Agreement, the Subject Shares of such Stockholder may be Transferred in
accordance with such Stockholder's last will and testament, or if none, in
accordance with the applicable laws of interstate succession, in either of which
cases, the Subject Shares shall remain subject, in all respects, to the terms of
this Agreement and such transferee must acknowledge that he, she or it is taking
such Subject Shares subject to and that he, she or it shall be fully bound by
the terms of this Agreement applicable to such Subject Shares by executing a
joinder to this Agreement substantially in the form attached hereto as Exhibit B
and delivering such executed joinder to the Secretary of Merger Sub as soon as
reasonably practicable after such Transfer. For purposes hereof, "Family
Members" shall mean (i) such person's spouse, former spouse, descendants
(whether natural or adopted), parents and their descendants and any spouse of
the foregoing persons (collectively, "relatives"), (ii) the trustee, fiduciary
or personal representative of such person and any trust solely for the benefit
of such person and/or such person's relatives or (iii) any limited partnership
or limited liability company the governing instruments of which provide that
such person shall have the exclusive, nontransferable power to direct the
management and policies of such entity including, without limitation, voting and
disposition of investments and of which the sole owners of partnership
interests, membership interests or any other equity interests are, and will
remain, limited to such person and such person's relatives. Notwithstanding
anything contained herein to the contrary, a Stockholder may tender its Subject
Shares pursuant to any tender offer if (x) at least a majority of the
outstanding shares of Company Common Stock has been tendered (excluding any
Subject Shares held by any Stockholder who has participated in such tender) in
connection with such tender offer and (y) such Stockholder has not breached any
provision of Section 1 or 5(b) of this Agreement in any respect or any other
provision of this Agreement in any material respect; provided, however, that in
the event that any holder of Company Common Stock withdraws from such tender
offer and as a result of such withdrawal, a majority of the shares of Company
Common Stock have no longer been tendered (excluding any Subject Shares held by
any Stockholder that have been tendered in such tender offer) in connection with
such tender offer, no Stockholder shall be permitted to tender any of its
Subject Shares in such tender offer and any Stockholder who had already tendered
any of its Subject Shares must withdraw the tender of its Subject Shares from
such tender offer until such time, if any, as the condition described in clause
(x) above has been satisfied again, so long as the condition described in clause
(y) remains satisfied and subject to this proviso.
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(d) Stop Transfer. Each Stockholder hereby authorizes and
requests the Company and its counsel to notify the Company's transfer agent that
there is a stop transfer order with respect to all of its Subject Shares (and
that this Agreement places limits on the voting of the Subject Shares). Each
Stockholder shall not request that the Company register the Transfer (book-entry
or otherwise) of any certificate or uncertificated interest representing any of
the Subject Shares, unless such Transfer is made in compliance with this
Agreement. In the event of a stock dividend or distribution, or any change in
the shares of Company Common Stock by reason of any stock dividend or
distribution, or any change in the shares of Company Common Stock by reason of
any stock dividend, stock split, recapitalization, combination, exchange of
shares or the like, the term "Subject Shares" shall be deemed to refer to and
include the Subject Shares as well as all such stock dividends and distributions
and any shares into which or for which any or all of the Subject Shares may be
changed or exchanged. Each Stockholder shall be entitled to receive and retain
any cash dividend paid by the Company during the term of this Agreement until
the Subject Shares are canceled in the Merger.
(e) Appraisal Rights. EACH STOCKHOLDER HEREBY ACKNOWLEDGES
THAT IT HAS NO RIGHTS AS TO APPRAISAL, DISSENT OR ANY SIMILAR OR RELATED MATTER
WITH RESPECT TO THE MERGER OR THE OTHER TRANSACTIONS.
2. Representations and Warranties of the Stockholders. Each
Stockholder hereby severally but not jointly represents and warrants to Merger
Sub as of the date hereof as follows:
(a) No Conflict. The execution and delivery of this Agreement
by such Stockholder does not, and the consummation by such Stockholder of the
transactions contemplated hereby will not, (i) violate any law applicable to
such Stockholder or (ii) result in a violation or any breach of or constitute a
default (or an event which with notice or lapse of time or both would become a
default) under any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or obligation to which such
Stockholder is a party, except for any such breaches or defaults which would not
materially impair the ability of such Stockholder to perform its obligations
hereunder.
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(b) Required Filings and Consents. The execution and delivery
of this Agreement by such Stockholder does not, and the consummation by such
Stockholder of the transactions contemplated hereby will not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any government or subdivision thereof, or any administrative, governmental
or regulatory authority, agency, commission, tribunal or body, domestic, foreign
or supranational, except (i) for applicable requirements, if any, of the
Exchange Act, the Securities Act, state "blue sky" laws or takeover laws, the
pre-merger notification requirements of the HSR Act, and filings and recordation
of appropriate merger documents as required by New Jersey Law and (ii) where the
failure to obtain such other consents, approvals, authorizations or permits, or
to make such filings or notifications would not materially impair the ability of
such Stockholder to perform its obligations hereunder.
(c) Shares. The Existing Shares of such Stockholder are, and
the Subject Shares of such Stockholder as of the Effective Time will be, owned
beneficially and of record by such Stockholder. The Existing Shares and all
warrants, options or other rights to acquire any shares of Company Common Stock
(including the applicable exercise price) that are owned, of record or
beneficially, by such Stockholder are set forth opposite such Stockholder's name
on Schedule 2(c) attached hereto. The Existing Shares of such Stockholder
constitute all of the shares of Company Common Stock owned of record or
beneficially by such Stockholder as of the date hereof. All of the Existing
Shares of such Stockholder are issued and outstanding and except as set forth on
Schedule 2(c) attached hereto, such Stockholder does not own, of record or
beneficially, any warrants, options or other rights to acquire any shares of
Company Common Stock. Such Stockholder has sole voting power, sole power of
disposition, sole power to issue instructions with respect to the matters set
forth in Section 1 hereof, sole power to demand appraisal rights (to the extent
such rights are available) and sole power to agree to all of the matters set
forth in this Agreement, in each case with respect to all of his Existing
Shares, and will have sole voting power, sole power of disposition, sole power
to issue instructions with respect to the matters set forth in Section 1 hereof,
sole power to demand appraisal rights (to the extent such rights are available)
and sole power to agree to all of the matters set forth in this Agreement, in
each case with respect to all of his Subject Shares as of the Effective Time, in
each case with no limitations, qualifications or restrictions on such rights,
subject to applicable federal securities laws and the terms of this Agreement.
Such Stockholder has good and valid title to his Existing Shares and at all
times during the term hereof and on the Effective Time will have good and valid
title to his Subject Shares, in each case, free and clear of all Liens and free
of any other limitation or restriction, except pursuant to this Agreement or
applicable securities laws. There are no existing options, warrants, calls,
stock appreciation right or similar phantom equity securities with respect to
the Subject Shares of such Stockholder.
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(d) No Finder's Fees. 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 in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of such
Stockholder, in his capacity as a shareholder, for which the Company or the
Surviving Corporation shall have any liability.
3. Representations and Warranties of Merger Sub. Merger Sub
hereby represents and warrants to the Stockholders as of the date hereof as
follows:
(a) Organization. Merger Sub is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation.
(b) Corporate Authorization; Validity of Agreement; Necessary
Action. Merger Sub has full corporate power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated hereby. The
execution, delivery and performance by Merger Sub of this Agreement and the
consummation by Merger Sub of the transactions contemplated hereby have been
duly and validly authorized by its Board of Directors and no other corporate
action or proceedings on the part of Merger Sub is necessary to authorize the
execution and delivery by Merger Sub of this Agreement and the consummation by
Merger Sub of the transactions contemplated hereby. This Agreement has been duly
executed and delivered by Merger Sub, and, assuming this Agreement constitutes a
valid and binding obligation of the Stockholder, constitutes a valid and binding
obligation of Merger Sub, enforceable in accordance with its terms, subject to
the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law), an implied covenant of good faith and fair dealing and
considerations of public policy.
(c) No Conflict. The execution and delivery of this Agreement
by Merger Sub does not, and the consummation by Merger Sub of the transactions
contemplated hereby by will not (i) conflict with or violate the charter
documents, By-laws or other organizational documents of Merger Sub, (ii)
conflict with or violate any law applicable to Merger Sub, except for such
conflicts or violations which would not, individually or in the aggregate, have
a Parent Material Adverse Effect, or (iii) result in a violation or any breach
of or constitute a default (or an event which with notice or lapse of time or
both would become a default) under any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which Merger Sub is a party or by which Merger Sub or any property
or asset of Merger Sub is bound or affected, except for any such breaches or
defaults which would not materially impair the ability of Merger Sub to
consummate the transactions contemplated hereby.
(d) Required Filings and Consents. The execution and delivery
of this Agreement by Merger Sub does not, and the consummation by Merger Sub of
the transactions contemplated hereby will not require any consent, approval,
authorization or permit of, or filing with or notification to, any government or
subdivision thereof, or any administration, governmental or regulatory
authority, agency, commission, tribunal or body, domestic, foreign or
supranational, except (i) for applicable requirements, if any, of the Exchange
Act, the Securities Act, state "blue sky" laws or takeover laws, the pre-merger
notification requirements of the HSR Act, and filing and recordation of
appropriate merger documents as required by New Jersey Law, and (ii) where the
failure to obtain such other consents, approvals, authorizations, or permits, or
to make such filings or notifications would not materially impair the ability of
Merger Sub to consummate the transactions contemplated hereby.
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4. Further Assurances. From time to time prior to the
Effective Time, at any other party's request and without further consideration,
each party hereto shall execute and deliver such additional documents and take
all such further lawful action as may be reasonably necessary to consummate and
make effective, as soon as reasonably practicable, the transactions contemplated
by this Agreement and the Merger Agreement.
5. Additional Covenants of the Stockholders.
(a) Filings. Each Stockholder shall furnish to Merger Sub all
information regarding such Stockholder and his Subject Shares that is required
for any application or other filing to be made pursuant to the rules and
regulations of any applicable law (including, without limitation, all
information required to be included in the Proxy Statement, a Schedule 13D
filing and a Schedule 13e-3 filing, if such filings are required to be filed
under the Exchange Act) in connection with the Transactions. Each Stockholder
hereby permits Merger Sub and the Company to publish and disclose in the Proxy
Statement its identity and ownership of Existing Shares, and the terms of this
Agreement.
(b) No Shop. Each Stockholder, in its capacity as a
stockholder, shall not directly or indirectly (i) solicit, initiate or encourage
(or authorize any person to solicit, initiate or encourage) any inquiry,
proposal or offer from any person to acquire any of the business, property or
capital stock of the Company or any direct or indirect subsidiary thereof,
whether by merger, purchase of assets, tender offer, consolidation, leveraged
buyout or other transaction or (ii) participate in any discussion or
negotiations regarding, or furnish to any other person any information with
respect to, or assist or otherwise cooperate in any way with, or participate in,
facilitate or encourage any effort or attempt by any other person to do or seek
any of the foregoing.
6. Termination. This Agreement (other than Sections 6, 7 and 8
hereof) shall terminate, and no party shall have any rights or obligations
hereunder and this Agreement shall become null and void and have no further
effect upon the earliest to occur of (a) the Effective Time, (b) the date the
Merger Agreement is terminated pursuant to any provision of Section 7.1 (other
than Sections 7.1(b)(iii), 7.1(c), 7.1(d) or 7.1(e) thereof), or (c) six months
(the "Tail") following the date that the Merger Agreement is terminated pursuant
to Sections 7.1(b)(iii), 7.1(c), 7.1(d) or 7.1(e) thereof; provided, that during
the Tail, none of the provisions of this Agreement (other than Sections 1, 5(b),
6, 7 and 8 hereof) shall have any force or effect; provided, further, that
during the Tail, notwithstanding anything contained in Section 1(c) to the
contrary, any Stockholder may (i) Transfer, free of any of the requirements of
this Agreement, a number of its Subject Shares, up to the greater of (x) 15% of
the Subject Shares held by such Stockholder as of the date hereof or (y) 10,000
shares of Company Common Stock and (ii) Transfer any and all other Subject
Shares (subject to the requirements of this Agreement), provided the proposed
transferee of such shares must agree to take such shares subject to, and to be
fully bound by, the terms of this Agreement by executing a joinder to this
Agreement substantially in the form attached hereto as Exhibit B and delivering
such executed joinder to the Secretary of Merger Sub as soon as reasonably
practicable after such Transfer. Notwithstanding anything contained herein to
the contrary, nothing in this Section 6 shall relieve any party of liability for
breach of this Agreement.
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7. Capture.
(a) In the event that the transactions contemplated by the
Merger Agreement are not consummated due to a breach of this Agreement by any
Stockholder and any Subject Shares of a Stockholder are sold, transferred,
exchanged, canceled or disposed of in connection with or as a result of any
Acquisition Transaction by a Third Party which is executed or consummated within
twelve (12) months following the date that the Merger Agreement is terminated
(an "Alternative Disposition") then, in lieu of any remedies at law, but in
addition to the remedies at equity for breach of this Agreement (including,
without limitation, specific performance and injunctive relief but excluding
additional money damages), on the closing of such Alternative Disposition, such
Stockholders shall tender and pay to, or shall cause to be tendered and paid to,
Cornerstone (or its designee), in immediately available funds, all of the Profit
(as defined below) realized by such Stockholders from such Alternative
Disposition. Subject to Section 7(b), "Profit" shall mean an amount equal to the
excess, if any, of (i) the Alternative Transaction Consideration (as defined
below) over (ii) the Current Transaction Consideration (as defined below). If
the Alternative Transaction Consideration includes any consideration other than
cash, such Stockholders may, if not prohibited from transferring any such
consideration to Cornerstone (or its designee), transfer, in lieu of cash, a pro
rata portion (based on the proportion of the non-cash consideration to the
aggregate consideration) of the Profit represented by such other forms of
consideration. "Alternative Transaction Consideration" shall mean all cash,
securities, settlement or termination amounts, notes or other debt instruments,
and other consideration received or to be received, directly or indirectly, by
such Stockholders and their affiliates in connection with or as a result of such
Alternative Disposition or any agreements or arrangements (including, without
limitation, any employment agreement (except a bona fide employment agreement
pursuant to which a Stockholder is required to devote, and under which such
Stockholder in good faith intends to devote, substantially all of his business
time and effort to the performance of executive services for the Company in a
manner substantially similar to such Stockholder's current employment
arrangements with the Company), consulting agreement, non-competition agreement,
confidentiality agreement, settlement agreement or release agreement) entered
into, directly or indirectly, by such Stockholders or any of their affiliates as
a part of, or in connection with, the Alternative Disposition or the associated
Acquisition Transaction. "Current Transaction Consideration" shall mean all
amounts to be received, directly or indirectly, by such Stockholders pursuant to
Article I of the Merger Agreement as such Article I may be amended from time to
time.
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(b) For purposes of determining Profits under this Section 7:
(i) all securities that are publicly traded within the United States (which
shall not include any securities to the extent that they may not be freely sold
within the three month period following the closing of the transaction under
Rule 145 under the Securities Act or any similar regulation) shall be valued at
the average of the closing prices for the five trading days ending on the date
on which the Alternative Disposition closes; (ii) all other non-cash items shall
be valued based upon the fair market value thereof as of the date of closing of
the Alternative Disposition as determined by an independent expert selected by
Cornerstone and who is reasonably acceptable to such Stockholder; (iii) all
deferred payments or consideration shall be discounted to reflect a market rate
of net present value thereof as determined by the above-referenced independent
expert; and (iv) if less than all of a Stockholder's Subject Shares are subject
to the Alternative Disposition, the Current Transaction Consideration shall be
deemed to be an amount equal to the Current Transaction Consideration multiplied
by a fraction, the numerator of which is the number of such Stockholder's
Subject Shares sold, transferred, exchanged, canceled or disposed of in such
Alternative Disposition and the denominator of which is the total number of such
Stockholder's Subject Shares. In the event any contingent payments are included
in the consideration for the Alternative Disposition, upon receipt of any such
contingent payment, such Stockholder will promptly transfer to Cornerstone any
additional amounts that would have been transferred to Cornerstone upon the
completion of the Alternative Disposition if such contingent payment had been
received at such time.
8. Expenses. In the event that the Merger is consummated
pursuant to the Merger Agreement, all reasonable legal fees and reasonable
out-of-pocket expenses incurred by the Stockholders in connection with the
negotiation of this Agreement shall be borne by the Surviving Corporation. In
the event that the Merger is not consummated for any reason, Merger Sub shall
have no responsibility for any fees or expenses incurred by the Stockholders.
9. Legend. All of the Subject Shares of each Stockholder shall
be represented by certificates that bear the following legend (and the Company
hereby agrees to issue all certificates for such Subject Shares with such
legend):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
OBLIGATIONS AND RESTRICTIONS STATED IN, AND ARE TRANSFERABLE ONLY IN
ACCORDANCE WITH, THE PROVISIONS OF A VOTING AGREEMENT AND IRREVOCABLE
PROXY, DATED AS OF JUNE __, 2002 (THE "AGREEMENT"). A COPY OF THE
AGREEMENT MAY BE OBTAINED FROM THE CORPORATION FREE OF CHARGE. THE
TERMS AND CONDITIONS OF THE AGREEMENT ARE HEREBY INCORPORATED INTO THIS
CERTIFICATE BY REFERENCE. BY ACCEPTANCE HEREOF, THE HOLDER OF THIS
CERTIFICATE AGREES TO COMPLY IN ALL RESPECTS WITH THE REQUIREMENTS OF
THE AGREEMENT.
10. General Provisions.
(a) Amendment. This Agreement may not be amended, modified or
supplemented except by an instrument in writing signed by the party to be
charged therewith.
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(b) Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally,
telecopied (which is confirmed) or sent by overnight courier (providing proof of
delivery) to the parties at the following addresses (or at such other addresses
for a party as shall be specified by like notice):
(i) if to Merger Sub:
c/o Cornerstone Equity Investors LLC
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx X'Xxxxx
Xxxxxxx Xxxxxx
with copies (which shall not constitute notice) to:
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxxxx Xxxxx, Esq.
(ii) if to the Company, to:
Vestcom International, Inc.
0 Xxxxxxxxx Xxxxx
Xxxx Xxxxxxxx, XX 00000
Telecopy No.: (973) 882-[____]
with a copy (which shall not constitute notice) to:
Xxxxxxxxxx Xxxxxxx PC
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
(iii) if to the Stockholders, to:
Xxxx Xxxxxx
0 Xxxxxxxxx Xxxxx
Xxxx Xxxxxxxx, XX 00000
Telecopy No.: (973) 882-[____]
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(c) Interpretation. Whenever the words "include," "includes"
or "including" are used in this Agreement they shall be deemed to be followed by
the words "without limitation." The phrases "the date of this Agreement," "the
date hereof," and terms of similar import, unless the context otherwise
requires, shall be deemed to refer to June 12, 2002.
(d) Counterparts. This Agreement may be executed in two or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other parties, it being understood that
all parties need not sign the same counterpart.
(e) 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 with respect to the
subject matter hereof, and is not intended to confer upon any person other than
the parties hereto any rights or remedies hereunder.
(f) 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 so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. 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 in a mutually acceptable
manner in order that the transactions contemplated hereby may be consummated as
originally contemplated to the fullest extent possible.
(g) Assignment. 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 Merger Sub may assign, in Merger Sub's
sole discretion, any or all of their respective rights, interests and
obligations hereunder to any affiliate of Merger Sub (including Cornerstone and
its affiliates). Subject to the preceding sentence, this Agreement will be
binding upon, inure to the benefit of and be enforceable by the parties and
their respective successors, heirs, agents, representatives, trust
beneficiaries, attorneys, affiliates and associates and all of their respective
predecessors, successors, permitted assigns, heirs, executors and
administrators.
(h) Enforcement; Governing Law; Jurisdiction; Waiver of Jury
Trial.
(i) The parties hereto agree that irreparable damage
would occur in the event any provision of this Agreement was not performed in
accordance with the terms hereof and that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to specific
performance of the terms hereof, in addition to any other remedy at law or in
equity (except as otherwise provided in Section 7).
11
(ii) The provisions of this Agreement shall be
governed by and construed in accordance with the laws of the State of New Jersey
(excluding any conflict of law rule or principle that would refer to the laws of
another jurisdiction). Each of the Stockholders, the Company and Merger Sub
hereto irrevocably and unconditionally consents to submit to the exclusive
jurisdiction of the courts of the State of New Jersey and of the United States
of America located in the State of New Jersey (the "New Jersey Courts") in any
action or proceeding arising out of or relating to this Agreement (and agrees
not to commence any litigation relating thereto except in such courts), waives
any objection to the laying of venue of any such litigation in the New Jersey
Courts and agrees not to plead or claim in any New Jersey Court that such
litigation brought therein has been brought in an inconvenient forum. Each of
the Stockholders, the Company and Merger Sub irrevocably appoints, to the extent
that such party is not a resident of the State of New Jersey, Corporate Service
Company, 000 Xxxx Xxxxxx Xxxx, Xxxx Xxxxxxx, Xxx Xxxxxx 00000 as its agent in
the State of New Jersey for acceptance of legal process in connection with any
such action or proceeding against such party with the same legal force and
validity as if served upon such party personally within the State of New Jersey.
EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST
EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, TRIAL BY JURY IN ANY SUIT, ACTION
OR PROCEEDING ARISING HEREUNDER.
(i) Stockholder Capacity. No person executing this Agreement
who is or becomes during the term of this Agreement a member of the Board of
Directors of the Company makes any agreement in his capacity as a member of the
Board of Directors. Each Stockholder is executing and delivering this Agreement
solely in Stockholder's capacity as the record and beneficial owner of the
Stockholder's Subject Shares.
(j) Obligations Several. Notwithstanding anything contained
herein to the contrary, the obligations of the Stockholders hereunder shall be
several and not joint, and as any Stockholder's obligations pertain to any
Subject Shares, such obligations shall pertain solely to the Subject Shares that
are owned of record and beneficially by such Stockholder.
* * * * *
12
IN WITNESS WHEREOF, Merger Sub, the Company and the
Stockholders have caused this Agreement to be executed as of the date first
written above.
VECTOR MERGER CORP.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
STOCKHOLDERS
/s/ Xxxx Xxxxxx
--------------------------------------
Xxxx Xxxxxx
/s/ Xxxxxxx Xxxxxxx
--------------------------------------
Xxxxxxx Xxxxxxx
/s/ Xxxxxxx Xxxxxxx
--------------------------------------
Xxxxxxx Xxxxxxx
/s/ Xxxxx Xxxxxxxx
--------------------------------------
Xxxxx Xxxxxxxx
XXXXX XXXXXX, as Trustee for
XXXXXXX XXXXXX INVESTMENT TRUST
D/T/D 12/10/96
By: /s/ Xxxxx Xxxxxx
-----------------------------
Name: Xxxxx Xxxxxx
Title:
XXXXX XXXXXX, as Trustee for
XXXXXX XXXXXX INVESTMENT TRUST
D/T/D 12/10/96
By: /s/ Xxxxx Xxxxxx
-----------------------------
Name: Xxxxx Xxxxxx
Title:
FOR PURPOSES OF SECTION 9 ONLY:
VESTCOM INTERNATIONAL, INC.
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxxx
Title:
SCHEDULE 2(c)
------------------------------------------------------------- ------------------------------ ------------------------------
Existing Shares Owned by
Name of Stockholder Stockholder Options Owned by Stockholder
------------------------------------------------------------- ------------------------------ ------------------------------
Xxxx Xxxxxx 1,346,500 0
------------------------------------------------------------- ------------------------------ ------------------------------
Xxxxx Xxxxxx, as Trustee for
Xxxxxxx Xxxxxx Investment Trust d/t/d/ 12/10/96 100,000 0
------------------------------------------------------------- ------------------------------ ------------------------------
Xxxxx Xxxxxx, as Trustee for
Xxxxxx Xxxxxx Investment Trust d/t/d/ 12/10/96 100,000 0
------------------------------------------------------------- ------------------------------ ------------------------------
Xxxxxxx Xxxxxxx 77,800 195,000
------------------------------------------------------------- ------------------------------ ------------------------------
Xxxxx Xxxxxxxx 192,500 70,000
------------------------------------------------------------- ------------------------------ ------------------------------
Xxxxxxx Xxxxxxx 13,000 70,000
------ ------
------------------------------------------------------------- ------------------------------ ------------------------------
Total 1,829,800 335,000
------------------------------------------------------------- ------------------------------ ------------------------------
EXHIBIT A
FORM OF IRREVOCABLE PROXY
By its execution hereof, and in order to secure its obligations under
the Voting Agreement (the "Agreement") of even date herewith among Vector Merger
Corp., a New Jersey corporation ("Merger Sub"), the undersigned (the
"Stockholder") and, for purposes of Section 9 only, Vestcom International, Inc.,
Stockholder hereby irrevocably constitutes and appoints Merger Sub and its
successors and assigns, with full power of substitution and resubstitution, from
the date hereof to the termination of the Agreement, as Stockholder's true and
lawful attorney and proxy (its "Proxy"), for and in Stockholder's name, place
and stead to vote the Subject Shares of Stockholder as Stockholder's Proxy at
every annual, special or adjourned meeting of shareholders of the Company, and
to sign on behalf of Stockholder (as a shareholder of the Company) any ballot,
proxy, consent, certificate or other document relating to the Company that law
permits or requires, in a manner consistent with the Agreement. This Proxy is
coupled with interest and Stockholder intends this Proxy to be irrevocable to
the fullest extent permitted by law. Stockholder hereby revokes any proxy
previously granted by Stockholder with respect to his Subject Shares. This Proxy
will terminate, and by of no further force and effect, at the time and under the
circumstances that the Agreement terminates. Capitalized terms used but not
defined herein shall have the meaning set forth in the Agreement.
IN WITNESS WHEREOF, the undersigned has executed this
Irrevocable Proxy this 12th day of June, 2002.
STOCKHOLDER:
------------------------------------
EXHIBIT B
FORM OF JOINDER TO
VOTING AGREEMENT
THIS JOINDER to the Voting Agreement (the "Agreement"), dated
as of June 12, 2002 (this "Agreement") by and among Vector Merger Corp., a New
Jersey corporation ("Merger Sub"); each of Xxxx Xxxxxx, Xxxxx Xxxxxx, as Trustee
for Xxxxxxx Xxxxxx Investment Trust d/t/d 12/10/96, Xxxxx Xxxxxx, as Trustee for
the Xxxxxx Xxxxxx Investment Trust d/t/d 12/10/96, Xxxxxxx Xxxxxxx, Xxxxxxx
Xxxxxxx and Xxxxx Xxxxxxxx; and, for purposes of Section 9 only, Vestcom
International, Inc., a New Jersey corporation, is made and entered into as of
__________ by and between Merger Sub and _____________ ("Holder"). Capitalized
terms used herein but not otherwise defined shall have the meanings set forth in
the Agreement.
WHEREAS, Holder has acquired certain Subject Shares and the
Agreement and Merger Sub require Holder, as a holder of such Subject Shares, to
become a party to the Agreement, and Holder agrees to do so in accordance with
the terms hereof.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Joinder hereby
agree as follows:
1. Agreement to be Bound. Holder hereby agrees that upon
execution of this Joinder, if shall become a party to the Agreement and shall be
fully bound by, and subject to, all the covenants, terms and conditions of this
Agreement as though an original party thereto and shall be deemed a Stockholder
for all purposes thereof. In addition, Holder hereby agrees that all shares of
Company Common Stock held by Holder shall be deemed Subject Shares for all
purposes of this Agreement.
2. Successors and Assigns. Except as otherwise provided
herein, this Joinder shall bind the inure to the benefit of and be enforceable
by Merger Sub and its successors, heirs and assigns and Holder and any
subsequent holder of Subject Shares and the respective successors, heirs and
assigns of each of them, so long as they hold any Subject Shares.
3. Counterparts. This Joinder may be executed in separate
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
4. Notices. For purposes of Section 10(b) of the Agreement,
all notices, demands or other communications to the Holder shall be directed to:
[Name]
[Address]
[Facsimile Number]
5. Governing Law. This Joinder shall be governed by and
construed in accordance with the laws of the State of New Jersey, without giving
effect in any rules, principles or provisions of choice of law or conflict of
laws.
6. Descriptive Headings. The descriptive headings of this
Joinder are inserted for convenience only and do not constitute a part of this
Joinder.
* * * * *
IN WITNESS WHEREOF, the parties hereto have executed this
Joinder as of the date first above written.
VECTOR MERGER CORP.
By:
-----------------------------
Name:
Title:
[HOLDER]
By:
-----------------------------
Name:
Title:
