EXHIBIT 99.2
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VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is entered into as of
May 11, 2003, by and among TDG Holding Company, a Delaware corporation
("Parent"), and the parties listed on Exhibit A attached hereto (each,
a "Stockholder" and collectively, the "Stockholders").
BACKGROUND INFORMATION
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A. Parent, The Xxxxx Group, Inc., a Delaware corporation (the
"COMPANY"), and TDG Merger Co., a Delaware corporation and wholly
owned subsidiary of Parent ("PURCHASER"), are entering into an
Agreement and Plan of Merger of even date herewith (the "MERGER
AGREEMENT"), which provides (subject to the terms and conditions set
forth therein) for the merger of Purchaser with and into the Company
(the "MERGER"), with the Company remaining as the corporation
surviving the Merger.
B. As of the date hereof, each Stockholder Owns (as defined
below) shares of Company Common Stock.
C. In order to induce Parent and Purchaser to enter into the
Merger Agreement, the Stockholders are entering into this Agreement.
STATEMENT OF AGREEMENT
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NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements contained in
this Agreement and other good and valuable consideration, the parties
to this Agreement, intending to be legally bound, agree as follows:
SECTION 1
DEFINITIONS
1.1 CERTAIN DEFINITIONS. Terms used in this Agreement and not
otherwise defined herein shall have the respective meanings ascribed
to such terms in the Merger Agreement. For purposes of this
Agreement:
(a) "EXPIRATION TIME" shall mean the earliest of the time at
which (i) the Merger Agreement is terminated in accordance with its
terms, (ii) the Merger is consummated and (iii) the Board of Directors
of the Company withdraws, modifies or changes its recommendation or
approval in respect of the Merger Agreement or the Merger or it
recommends any proposal other than by Parent or Purchaser in respect
of an Acquisition Transaction, or resolves to take any of the
foregoing.
(b) Each Stockholder shall be deemed to "Own" or to have
acquired "Ownership" of a security if such Stockholder (i) is the
record owner of such security, or (ii) is the "beneficial owner"
(within the meaning of Rule 13d-3 promulgated under the Securities
Exchange Act of 1934, as amended) of such security because he or she
has or shares the power to vote such security.
(c) "SHARES" shall mean (i) all shares of Company Common Stock
Owned by a Stockholder as of the date of this Agreement, and (ii) all
additional shares of Company Common Stock of which a Stockholder
acquires Ownership during the period from the date of this Agreement
through the Expiration Time.
(d) "SUBJECT SECURITIES" shall mean (i) all shares of Company
Common Stock and all options, warrants and other rights to acquire (by
purchase, conversion or otherwise) shares of Company Common Stock
Owned by a Stockholder as of the date of this Agreement, and (ii) all
additional shares of Company Common Stock and all additional options,
warrants and other rights to acquire (by purchase, conversion or
otherwise) shares of Company Common Stock of which a Stockholder
acquires Ownership during the period from the date of this Agreement
through the Expiration Time.
1.2 CONSTRUCTION.
(a) For purposes of this Agreement, whenever the context
requires, the singular number shall include the plural, and vice
versa.
(b) The parties agree that any rule of construction to the
effect that ambiguities are to be resolved against the drafting party
shall not be applied in the construction or interpretation of this
Agreement.
(c) As used in this Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms
of limitation, but rather shall be deemed to be followed by the words
"without limitation."
(d) Except as otherwise indicated, all references in this
Agreement to "Sections" and "Exhibits" are intended to refer to
Sections of this Agreement and Exhibits to this Agreement.
SECTION 2
VOTING; PROXY
2.1 VOTING. Except to the extent they are voted by proxy
granted pursuant to SECTION 2.2, from the date hereof until the
Expiration Time, each Stockholder shall vote, at any Company
Stockholders Meeting or in connection with any solicitation of written
consents from stockholders of the Company in lieu of a Company
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Stockholders Meeting, all Shares Owned by a Stockholder that such
Stockholder is entitled to vote at such meeting or by such written
consent (a) in favor of the approval of the Merger Agreement and the
Merger, and in favor of any and all other actions contemplated by the
Merger Agreement; (b) against any Acquisition Transaction; and
(c) against any action or agreement that would result in a breach of
any covenant, representation or warranty of the Company under the
Merger Agreement or would result in any obligation or agreement of the
Company under the Merger Agreement not being fulfilled or would result
in the Company being required to pay to Parent the Termination Fee
and/or the Expenses contemplated in Section 7.2 of the Merger
Agreement (the matters referred to in clauses (a), (b) and (c) being
referred to collectively as the "VOTING OBJECTIVES").
2.2 PROXY. From the date hereof until the Expiration Time, each
Stockholder hereby irrevocably (to the fullest extent permitted by
law) appoints and constitutes each of Xxxxxx Xxxxxx and Xxxxx
Xxxxxxxxx, as designees of Parent, the attorneys-in-fact and proxies
of such Stockholder, with full power of substitution and
resubstitution, to vote, at any Company Stockholders Meeting or in
connection with any solicitation of written consents from the
stockholders of the Company in lieu of a Company Stockholders Meeting,
in accordance with the Voting Objectives, all Shares Owned by a
Stockholder that such Stockholder is entitled to vote at such meeting
or by such written consent. Upon the execution hereof, all prior
proxies given by a Stockholder with respect to any of the Shares are
hereby revoked, and each Stockholder agrees that no subsequent proxies
will be given with respect to any of the Shares. From the date hereof
until the Expiration Time, this proxy is irrevocable. This proxy is
coupled with an interest between Parent and each Stockholder and is
granted in consideration of Parent and Purchaser entering into the
Merger Agreement.
2.3 OTHER MATTERS. Subject to the provisions of SECTION 4
hereof, each Stockholder shall retain the right to vote the Shares, at
its sole discretion, at any Company Stockholders Meeting or in
connection with any solicitation of written consents from the
stockholders of the Company in lieu of a Company Stockholders Meeting,
on all matters other than in respect of the Voting Objectives, which
are at any time and from time to time presented for action by the
Company's stockholders.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder hereby represents and warrants to Parent as
follows:
3.1 AUTHORIZATION, ETC. Each Stockholder has the absolute and
unrestricted right, power, authority and capacity to execute and
deliver this Agreement and to perform its obligations hereunder. This
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Agreement has been duly executed and delivered by each Stockholder and
constitutes the legal, valid and binding obligation of such
Stockholder, enforceable against such Stockholder in accordance with
its terms, except to the extent that enforceability may be limited by
applicable bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and by general principles
of equity (regardless of whether enforcement is sought in a court of
Law or equity).
3.2 NO CONFLICTS OR CONSENTS.
(a) The execution and delivery of this Agreement by each
Stockholder does not, and the performance of this Agreement by each
Stockholder in accordance with its terms will not, (i) conflict with
or violate any Law, order, decree or judgment applicable to such
Stockholder or by which such Stockholder or any of the Subject
Securities is or may be bound or affected, or (ii) conflict with, or
result in or constitute (with or without notice or lapse of time) any
breach of or default or event of default under, or give to any other
Person (with or without notice or lapse of time) any right of
termination, amendment, acceleration or cancellation of, or result
(with or without notice or lapse of time) in the creation of any
encumbrance or restriction on any of the Subject Securities pursuant
to, any contract or instrument to which such Stockholder is a party or
by which such Stockholder or any of the Subject Securities is or may
be bound or affected.
(b) The execution and delivery of this Agreement by each
Stockholder does not, and the performance of this Agreement by each
Stockholder will not, require any consent or approval of any Person.
3.3 TITLE TO SECURITIES; VOTING. As of the date of this
Agreement, (a) each Stockholder holds of record (free and clear of any
encumbrances or restrictions) the number of outstanding shares of
Company Common Stock set forth beside such Stockholder's name on
EXHIBIT A hereto under the heading "Shares Held of Record"; (b) each
Stockholder holds (free and clear of any encumbrances or restrictions)
the options, warrants and other rights to acquire (by purchase,
conversion or otherwise) shares of Company Common Stock set forth
beside such Stockholder's name on EXHIBIT A hereto under the heading
"Options and Other Rights"; (c) each Stockholder Owns the additional
shares of Company Common Stock set forth beside such Stockholder's
name on EXHIBIT A hereto under the heading "Additional Shares Owned";
and (d) no Stockholder nor any of their subsidiaries or affiliates
directly or indirectly Owns any shares of Company Common Stock or any
option, warrant or other right to acquire (by purchase, conversion or
otherwise) any shares of Company Common Stock other than the shares
and options, warrants and other rights set forth beside such
Stockholder's name on EXHIBIT A hereto. Except as otherwise provided
in this Agreement, and except that the record holder of the shares
owned of record by Xxxxx Investments, Ltd. may only vote such shares
pursuant to instructions from other parties subject to this Agreement,
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each Stockholder has the right to vote all Shares, and none of the
Shares is subject to a voting agreement, voting trust, irrevocable
proxy or other voting arrangement.
3.4 LITIGATION. There is no claim, action, proceeding or
investigation pending or, to the knowledge of the Stockholders,
threatened against or relating to any Stockholder by or before any
court or Governmental Entity (including the National Association of
Securities Dealers, Inc.) that, if determined adversely, would
prohibit the Stockholders from performing their obligations hereunder.
3.5 FINDER'S FEES. No investment banker, broker, finder or
other Person is entitled to a commission or fee from Parent or
Purchaser in respect of this Agreement based upon any arrangement or
agreement made by or on behalf of the Stockholders.
SECTION 4
ADDITIONAL COVENANTS OF THE STOCKHOLDERS
4.1 APPRAISAL RIGHTS. Each Stockholder hereby waives any rights
of appraisal or rights to dissent from the Merger or approval of the
Merger Agreement that it might have under the provisions of
Section 262 of the General Corporation Law of the State of Delaware.
4.2 FURTHER ASSURANCES. Subject to SECTION 4.5 hereof, each
Stockholder agrees that it shall not take, or authorize or permit any
of its representatives, agents or affiliates to take, any action which
in any manner delays, xxxxxx or impedes the successful completion of
the Merger in an expeditious manner. In addition, from time to time
and without additional consideration, each Stockholder shall execute
and deliver, or cause to be executed and delivered, such additional
transfers, assignments, endorsements, proxies, consents and other
instruments, and shall take such further actions, as Parent may
reasonably request for the purpose of carrying out and furthering the
intent of this Agreement.
4.3 NO PROXIES OR ENCUMBRANCES. Except pursuant to the terms of
this Agreement or the Merger Agreement, from the date hereof until the
Expiration Time, each Stockholder shall not, without the prior written
consent of Parent, directly or indirectly, (a) grant any proxies or
enter into any voting trust or other agreement or arrangement with
respect to the voting of any of the Shares, or (b) sell, assign,
transfer, encumber or otherwise dispose of, or enter into any
contract, option or other arrangement or understanding with respect to
the direct or indirect sale, assignment, transfer, encumbrance or
other disposition of, any Subject Securities.
4.4 NO SHOPPING. Subject to SECTION 4.5 hereof, from the date
hereof until the Expiration Time, the Stockholders will not, directly
or indirectly, through any officer, director, agent, financial
adviser, attorney, accountant or other representative or otherwise,
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solicit, initiate or encourage submission of proposals or offers from
any Person relating to, or that could reasonably be expected to lead
to, an Acquisition Transaction or participate in any negotiations or
discussions regarding, or furnish to any other Person any information
with respect to, or otherwise cooperate in any way with, or assist or
participate in, facilitate or encourage, any effort or attempt by any
other Person to do or seek an Acquisition Transaction.
4.5 DISCHARGE OF FIDUCIARY DUTIES. Each Stockholder is signing
this Agreement in such Stockholder's capacity as a stockholder of the
Company. Nothing in SECTION 4.2 or 4.4 hereof shall restrict such
Stockholder in his or her capacity as a Director of the Company from
discharging his or her fiduciary duties to the stockholders of the
Company under applicable Law even if the discharge of such fiduciary
duties causes the occurrence of the Expiration Time and the
termination of this Agreement pursuant to Section 5.1.
4.6 CONDUCT OF THE STOCKHOLDERS. Each Stockholder will not
(a) take, or agree or commit to take, any action that would make any
representation and warranty of such Stockholder hereunder inaccurate
in any respect as of any time prior to the termination of this
Agreement, or (b) omit, or agree or commit to omit, to take any
reasonable action necessary to prevent any such representation or
warranty from being inaccurate in any respect at any such time prior
to the termination of this Agreement.
4.7 DISCLOSURE. The Stockholders hereby permit the Company and
Parent to publish and disclose, in the Proxy Statement and the
Schedule 13E-3 (including all documents and schedules to be filed in
connection with the foregoing with the SEC) and in other filings and
public disclosures relating to the Merger, this Agreement, such
Stockholder's identity and details regarding such Stockholder's
Ownership of shares of Company Common Stock and the nature of the
Stockholder's commitments, arrangements and understandings under this
Agreement.
SECTION 5
TERMINATION
5.1 TERMINATION. This Agreement, including the proxy granted
herein, will terminate and be of no further force or effect without
notice to or further action of the parties immediately at the
Expiration Time. In the event of termination of this Agreement
pursuant to this SECTION 5.1, this Agreement shall forthwith become
void and there shall be no liability or obligation hereunder on the
part of any party hereto, provided that nothing herein shall release
any party for liability for material breach of this Agreement prior to
such termination.
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SECTION 6
MISCELLANEOUS
6.1 INDEMNIFICATION. Each Stockholder, jointly and severally,
shall hold harmless and indemnify Parent and Parent's affiliates from
and against, and shall compensate and reimburse Parent and Parent's
affiliates for, any loss, damage, claim, liability, fee, demand, cost
or expense (including reasonable attorneys' fees, costs and
disbursements, and regardless of whether or not such loss, damage,
claim, liability, fee, demand, cost or expense relates to a third-
party claim) that is directly or indirectly suffered or incurred by
Parent or any of Parent's affiliates, or to which Parent or any of
Parent's affiliates otherwise becomes subject, and that arises
directly or indirectly from, or relates directly or indirectly to, any
inaccuracy in or breach of any representation or warranty contained in
this Agreement.
6.2 EXPENSES. 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.
6.3 NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally,
effective when delivered, or by express courier service, effective one
business day after delivery to such courier, or by registered or
certified mail (postage prepaid and return receipt requested),
effective when received or three business days after the mailing,
whichever occurs first, or by telecopy, effective when transmitted and
a confirmation is received, provided the same is on a Business Day,
and, if not, on the next Business Day, to the parties at the following
addresses (or at such other address for a party or to such other
Person's attention as shall be specified by like notice):
If to a Stockholder, at the respective address set forth on the
signature page hereto.
If to Parent:
c/o The Riverside Company
Rockefeller Center
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chief Financial Officer
Facsimile: 212.265.6478
With a copy to:
Xxxxx, Day
0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000-0000
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Attn: Xxxx X. XxXxxx
Facsimile: 650.739.3900
6.4 SEVERABILITY. If any provision of this Agreement or any
part of any such provision is held under any circumstances to be
invalid or unenforceable 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) the
invalidity or unenforceability 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.
6.5 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter
hereof and supersedes all prior agreements and understandings between
the parties with respect thereto. No addition to or modification of
any provision of this Agreement shall be binding upon either party
unless made in writing and signed by both parties.
6.6 ASSIGNMENT; BINDING EFFECT. Except as provided herein,
neither this Agreement nor any of the interests or obligations
hereunder may be assigned or delegated by the Stockholders, and any
attempted or purported assignment or delegation of any of such
interests or obligations shall be void. Subject to the preceding
sentence, this Agreement, including the proxy granted herein, shall be
binding upon each Stockholder and each Stockholder's successors and
assigns, and shall inure to the benefit of Parent and its successors
and assigns. Without limiting any of the restrictions set forth in
this Agreement, this Agreement, including the proxy granted herein,
shall be binding upon any Person to whom any Subject Securities are
transferred. Nothing in this Agreement (other than the proxy granted
herein, as expressly provided in such proxy) is intended to confer on
any Person other than Parent and its successors and assigns any rights
or remedies of any nature, except as otherwise provided in SECTION 4.7
hereof with respect to the Company and as otherwise provided in
SECTION 6.1 hereof with respect to Parent's affiliates.
6.7 SPECIFIC PERFORMANCE. The parties agree that irreparable
damage would occur in the event that any of the provisions of this
Agreement is not performed in accordance with its specific terms or is
otherwise breached. Each Stockholder agrees that, in the event of any
breach or threatened breach by such Stockholder of any covenant or
obligation contained in this Agreement, Parent shall be entitled (in
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addition to any other remedy that may be available to it, including
monetary damages) 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. Each Stockholder further agrees that neither
Parent nor any other Person shall be required to obtain, furnish or
post any bond or similar instrument in connection with or as a
condition to obtaining any remedy referred to in this SECTION 6.7, and
each Stockholder irrevocably waives any right such Stockholder may
have to require the obtaining, furnishing or posting of any such bond
or similar instrument.
6.8 NON-EXCLUSIVITY. The rights and remedies of Parent under
this Agreement are not exclusive of or limited by any other rights or
remedies which it may have, whether at Law, in equity, by contract or
otherwise, all of which shall be cumulative (and not alternative).
Without limiting the generality of the foregoing, the rights and
remedies of Parent under this Agreement, and the obligations and
liabilities of the Stockholders under this Agreement, are in addition
to their respective rights, remedies, obligations and liabilities
under common law requirements and under all applicable statutes, rules
and regulations.
6.9 GOVERNING LAW; VENUE.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving
effect to principles of conflicts of law.
(b) Any legal action or other legal proceeding relating to this
Agreement or the enforcement of any provision of this Agreement shall
be brought or otherwise commenced in any state or federal court
located in the State of Delaware. Each of the Stockholders and
Parent:
(i) expressly and irrevocably consents and submits to the
jurisdiction of each state and federal court located in the State
of Delaware in connection with any such legal proceeding;
(ii) agrees that service of any process, summons, notice or
document by U.S. mail addressed to it at the address set forth
above shall constitute effective service of such process,
summons, notice or document for purposes of any such legal
proceeding;
(iii) agrees that each state and federal court located in
the State of Delaware shall be deemed to be a convenient forum;
and
(iv) agrees not to assert (by way of motion, as a defense or
otherwise), in any such legal proceeding commenced in any state
or federal court located in the State of Delaware, any claim that
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it is not subject personally to the jurisdiction of such court,
that such legal proceeding has been brought in an inconvenient
forum, that the venue of such proceeding is improper or that this
Agreement or the subject matter of this Agreement may not be
enforced in or by such court.
(c) EACH OF THE STOCKHOLDERS AND PARENT IRREVOCABLY WAIVES THE
RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY LEGAL PROCEEDING RELATING
TO THIS AGREEMENT OR THE ENFORCEMENT OF ANY PROVISION OF THIS
AGREEMENT.
6.10 COUNTERPARTS. This Agreement may be executed by the parties
in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together
constitute one and the same instrument.
6.11 CAPTIONS. The captions contained 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.
6.12 WAIVER. No failure on the part of Parent to exercise any
power, right, privilege or remedy under this Agreement, and no delay
on the part of Parent 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
such power, right, privilege or remedy shall preclude any other or
further exercise thereof or of any other power, right, privilege or
remedy. Parent shall not be deemed to have waived any claim available
to Parent arising out of this Agreement, or any power, right,
privilege or remedy of Parent 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
Parent; and any such waiver shall not be applicable or have any effect
except in the specific instance in which it is given.
* * * * * *
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IN WITNESS WHEREOF, Parent and the Stockholders have caused this
Voting Agreement to be executed as of the date first written above.
TDG Holding Company
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: President
Xxxx Xxxxx-Xxxxx
/s/ Xxxx-Xxxxx Owners, in her individual capacity
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Xxxxxxx Xxxxxx-Hood
/s/ Xxxxxxx Xxxxxx-Hood, in her individual capacity
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Xxxxx Xxxxxxxx, Jr.
/s/ Xxxxx Xxxxxxxx, Jr., in his individual capacity
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Xxxxxxx Xxxxxxx
/s/ Xxxxxxx Xxxxxxx, in his individual capacity
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Xxxxxx Xxxxxxx
/s/ Xxxxxx Xxxxxxx, in his individual capacity
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Xxxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx, in his individual capacity
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Xxxxx Xxxxxx
/s/ Xxxxx Xxxxxx, in his individual capacity
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Xxxxxxx Xxxxxxx
/s/ Xxxxxxx Xxxxxxx, in his individual capacity
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Xxxxx Xxxxx-XxxXxxxx
/s/ Xxxxx Xxxxx-XxxXxxxx, in her individual capacity
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Xxxxxx Xxxxx
/s/ Xxxxxx Xxxxx, in his individual capacity
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Xxxxxxx Xxxxx
/s/ Xxxxxxx Xxxxx, in his individual capacity
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Xxx Xxxxx, Xx.
/s/ Xxx Xxxxx, Xx., in his individual capacity
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/s/ Xxxxxxx Xxxxx, /s/ Xxx Xxxxx, Xx., as trustees
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Xxxxx Investments, Ltd.
/s/ Xxxxxxx Xxxxx, as Managing Partner
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Xxxxx Xxxxx
/s/ Xxxxx Xxxxx, in her individual capacity
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