VOTING AGREEMENT EXHIBIT 99.1
This Voting Agreement is entered into as of January 29, 1998, between
U.S. Aggregates, Inc., a Delaware corporation ("Purchaser"), and Building and
Construction Capital Partners I, L.P., a California limited partnership (the
"Stockholder").
RECITALS
A. Pursuant to that certain Agreement and Plan of Merger dated as of
January 29, 1998 (the "Merger Agreement") among Purchaser, Western
Acquisition, Inc., a Delaware corporation and wholly owned indirect subsidiary
of Purchaser ("Sub"), and Monroc, Inc., a Delaware corporation ("Monroc"), Sub
will be merged with and into Monroc (the "Merger").
B. The Stockholder is executing this Agreement as an inducement to
Purchaser to enter into and execute the Merger Agreement.
C. All capitalized terms used but not defined herein shall have the
meanings set forth in the Merger Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
1. Representations and Warranties of the Stockholder. The
Stockholder hereby represents and warrants to Purchaser:
(a) The Stockholder has all necessary power and authority to
execute and deliver this Agreement, to perform its obligations hereunder and
to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement by the Stockholder and the consummation by the
Stockholder of the transactions contemplated hereby have been duly and validly
authorized by the Stockholder, and no other proceedings on the part of the
Stockholder are necessary to authorize the execution and delivery of this
Agreement or to consummate such transactions.
(b) The execution and delivery of this Agreement by the
Stockholder do not, and the performance of this Agreement by the Stockholder
will not, result in a violation of, or a default under, or conflict with, any
contract, commitment, agreement or arrangement which the Stockholder is a
party or by which the Stockholder is bound or affected, which violation,
default or conflict would materially and adversely affect the Stockholder's
ability to perform its obligations under this Agreement.
(c) The Stockholder is the record holder of 1,650,000 shares
of common stock, par value $.01 per share, of Monroc (the "Shares"). The
Stockholder has not appointed or granted any proxy, which appointment or grant
is still effective, with respect to the Shares. Except for the Shares, the
Stockholders is not the record or beneficial owner of any shares of capital
stock of Monroc.
2. Representations and Warranties of Purchaser. The Purchaser hereby
represents and warrants to the Stockholder:
(a) Purchaser has all necessary power and authority to execute
and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution and delivery
of this Agreement by Purchaser and the consummation by Purchaser of the
transactions contemplated hereby have been duly and validly authorized by
Purchaser, and no other proceedings on the part of Purchaser are necessary to
authorize the execution and delivery of this Agreement or to consummate such
transactions.
(b) The execution and delivery of this Agreement by Purchaser
do not, and the performance of this Agreement by Purchaser will not, result in
a violation of, or a default under, or conflict with, any contract,
commitment, agreement or arrangement which Purchaser is a party or by which
Purchaser is bound or affected, which violation, default or conflict would
materially and adversely affect Purchaser's ability to perform its obligations
under this Agreement.
3. Disposition of Shares. During the term of this Agreement, the
Stockholder hereby covenants and agrees that it shall not transfer ownership
of or pledge any of its Shares unless the transferee or pledgee agrees in
writing to be bound by the terms and conditions of this Agreement.
4. Voting. During the term of this Agreement, the Stockholder hereby
agrees that at any meeting of the stockholders of Monroc, however called, and
in any action by consent of the stockholders of Monroc, the Stockholder shall
vote its Shares owned as of the date hereof or hereafter acquired (a) in favor
of adoption of the Merger Agreement and approval of the transactions
contemplated thereby and (b) against approval or adoption of any action or
agreement (other than the Merger Agreement or the transactions contemplated
thereby) that would impede, interfere with, delay, postpone or attempt to
discourage the Merger or reasonably be expected to result in a breach of the
Merger Agreement; provided, however, that the Stockholder has no obligation to
vote in favor of adoption of any agreement other than the Merger Agreement as
presently constituted or approval of any transaction other than those
transactions described in the Merger Agreement.
5. Proxy. During the term of this Agreement, the Stockholder hereby
constitutes and appoints Purchaser, or any nominee of Purchaser, with full
power of substitution, as his or its true and lawful attorney and proxy, for
and in his, her or its name, place and stead, to vote as his, her or its proxy
at any meeting of the stockholders of Monroc, however called (a) in favor of
adoption of the Merger Agreement and approval of the transactions contemplated
thereby and (b) against approval or adoption of any action or agreement (other
than the Merger Agreement or the transactions contemplated thereby) that would
impede, interfere with, delay, postpone or attempt to discourage the Merger or
reasonably be expected to result in a breach of the Merger Agreement;
provided, however, that the Stockholder has no obligation and the Purchaser
has no authority to vote in favor of adoption of any agreement other than the
Merger Agreement as presently constituted or approval of any transaction other
than those transactions described in the Merger Agreement. The Purchaser may
sign such Stockholder's name to any written consent of the stockholders of
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Monroc with respect to the Shares but only with respect to matters referenced
in clauses (a) and (b) of this Section 5 and subject to the limitations set
forth in Section 4 and this Section 5.
6. Waiver of Appraisal Rights. To the extent applicable, the
Stockholder hereby waives any rights of appraisal or rights to dissent from
the Merger that the Stockholder may have on the terms set forth in the Merger
Agreement in effect on the date hereof.
7. Termination. This Agreement shall terminate upon the earliest to
occur of (a) the consummation of the Merger or (b) the termination of the
Merger Agreement.
8. Specific Performance. The parties hereto agree that irreparable
damage would occur in the event any provision of this Agreement were not
performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
9. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes all prior written and oral and all
contemporaneous oral agreements and understandings with respect to the subject
matter hereof.
10. Amendment; Waiver. This Agreement shall not be amended, altered
or modified except by an instrument in writing duly executed by each of the
parties hereto. No failure or delay on the part of any party in exercising
any right, power or remedy hereunder shall operate as a waiver hereof; nor
shall any single or partial exercise of any right, power or remedy preclude
any other future exercise thereof or the exercise of any other right, power or
remedy hereunder.
11. Assignment. Neither this Agreement nor any right or obligation
hereunder is assignable in whole or in part, whether by operation of law or
otherwise, by the parties to this Agreement without the express written
consent of the other parties, and any such attempted assignment shall be void
and unenforceable
12. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware without giving effect to
the principles of conflict of laws thereof.
13. Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance is held
invalid, illegal or unenforceable, the validity, legality and enforceability
of any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
14. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have teen duly given upon receipt) by delivery in person, by cable,
telegram, telex or telecopies, or by registered or certified mail (postage
prepaid, return receipt requested) to the respective parties as follows:
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If to Purchaser: U.S. Aggregates, Inc.
000 Xxxxx Xx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx
with a copy to: Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxxxxxx, Esq.
If to Stockholder: Xxxxxxx Xxxx & Associates
000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
with copies to: LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P.
000 Xxxxx Xxxx Xxxxxx
0000 Xxxxxx Xxxxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above
(provided that notice of any change of address shall be effective only upon
receipt thereof).
15. Descriptive Headings. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of
or to affect the meaning or interpretation of this Agreement.
16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. It shall not be
necessary for all parties hereto to execute the same counterpart(s) of this
Agreement for this Agreement to become effective
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first written above.
U.S. AGGREGATES, INC.
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Chief Financial Officer
BUILDING AND CONSTRUCTION CAPITAL
PARTNERS I, L.P.
By: BUILDING AND CONSTRUCTION CAPITAL
PARTNERS, L.P., as general partner
By: /s/ Xxxx Xxxxxxxxxx
Name: Xxxx Xxxxxxxxxx
Title: Chief Financial Officer
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