RESTATED IRREVOCABLE PROXY
Exhibit
99.2
RESTATED
IRREVOCABLE PROXY
All
capitalized terms used but not
defined in this Irrevocable Proxy shall have the meanings set forth in that
certain Securities Purchase Agreement, of even date herewith (the
“Purchase Agreement”), by and among MISCOR Group, Ltd.
(the “Company”), Tontine Capital Partners, L.P.
(“Tontine”) and Tontine Capital Overseas Master Fund,
L.P. (“TCOMF” and together with Tontine, the
“Purchasers”).
WHEREAS,
the Company and the Purchasers
entered into a Securities Purchase Agreement dated January 18, 2007 (the
“Original Purchase Agreement”), pursuant to which the
Company acquired 62,500,000 shares of Common Stock in the Company.
WHEREAS,
in connection with the
Original Purchase Agreement, Xxxx X. Xxxxxxx, the President and Chief Executive
Officer of the Company (“Xxxxxxx”) granted to the
Purchasers an irrevocable proxy on January 18, 2007 (the “Original
Proxy”).
WHEREAS,
in connection with and as a condition to the closing of the transactions
contemplated by the Purchase Agreement, Xxxxxxx desires to restate the Original
Proxy.
FOR
VALUE RECEIVED,
Xxxxxxx does hereby irrevocably appoint Tontine and TCOMF and each of them
(and
any manager or officer of Tontine or TCOMF and any other Person appointed by
Tontine or TCOMF), as the attorney-in-fact, agent, and proxy of Xxxxxxx
(collectively, the “Proxy
Holders”),
with full power
of substitution, with full authority to act and vote in person or by revocable
proxy, written consent, or otherwise, as fully and effectively as Xxxxxxx could
do so in person (or by proxy, written consent, or otherwise), with respect
to
any and all shares of Common Stock in the Company that Xxxxxxx now or hereafter
owns legally, beneficially, or of record, or over which Xxxxxxx has voting
control (the “Subject
Common Stock”),
in
such
manner as the Proxy Holders shall, in their sole discretion, deem proper, and
as
may be allowable under applicable law, with respect to the following
matters: (i) the election
to the
Company’s Board of Directors of one or two individuals nominated by the
Purchasers, as applicable, for such appointment pursuant to and in accordance
with the Purchasers’ rights under Section 5.6 of the Original Purchase
Agreement and Section 5.5 of the Purchase Agreement to appoint members to the
Company’s Board of Directors, and (ii) solely for the purpose of enforcing the
Purchasers’ rights under Section 5.8 of the Purchase Agreement and Section 5.9
of the Original Purchase Agreement, any matter coming before the stockholders
of
the Company that would have the effect of ensuring that future acquisitions
by
the Purchasers of up to 50% of the outstanding Common Stock on a fully diluted
basis will not be subject to the provisions of any anti-takeover or control
share laws and regulations of any governmental authority, including without
limitation, the applicable provisions of the IBCL, and any provisions of an
anti-takeover or control share nature adopted by the Company or any of its
Subsidiaries or contained in the Company’s Amended and Restated Articles of
Incorporation, Amended and Restated Code of Bylaws or the organizational
documents of any of its Subsidiaries. In addition, Xxxxxxx hereby
agrees, in his capacity as a director of the Company, to vote for the nomination
and appointment of the Purchasers’ director representatives as set forth and as
provided in Section 5.6 of the Original Purchase Agreement and Section 5.5
of
the Purchase Agreement and to vote in such a manner as to enforce the
Purchaser’s rights with respect to Section 5.9 of the Original Purchase
Agreement and Section 5.8 of the Purchase Agreement.
Xxxxxxx
hereby represents and warrants
that, as of the date hereof: (1) Xxxxxxx is the legal, beneficial, or record
holder of the Subject Common Stock; and (2) Xxxxxxx has full right, power,
and
capacity to grant and transfer to the Proxy Holders the voting and other rights
represented hereby.
Xxxxxxx
shall not
to grant to any Person any proxy or enter into any voting agreement
that
is inconsistent with the rights and privileges granted to the Proxy Holders
in
this Irrevocable Proxy.
This
Irrevocable Proxy is issued as a condition precedent to the execution and
delivery by the Purchasers of the Purchase Agreement and the consummation of
the
transactions contemplated thereby. Xxxxxxx has obtained substantial
and material benefits as a result of the consummation of the transactions
contemplated by the Original Purchase Agreement and will obtain substantial
and
material benefits as a result of the consummation of the transactions
contemplated by the Purchase Agreement. This Irrevocable Proxy is a
material inducement to the Purchasers to execute and deliver the Purchase
Agreement and to consummate the transactions contemplated
thereby. This Irrevocable Proxy is coupled with an interest and is
irrevocable by Xxxxxxx. This Irrevocable Proxy is effective as of the
date hereof and shall terminate automatically and be of no further force and
effect at such time as the Proxy Holders and their affiliates no longer have
any
rights under Sections 5.6 and 5.9 of the Original Purchase Agreement and
Sections 5.5 and 5.8 of the Purchase Agreement.
If
any
provision of this Irrevocable Proxy is adjudicated to be invalid or
unenforceable, then such provision shall be deemed deleted and the remainder
of
this Irrevocable Proxy, nevertheless, shall remain unaffected and fully
enforceable. Further, to the extent any provision herein is deemed
unenforceable by virtue of its scope, but may be made enforceable by limitation
thereof, the parties hereto agree the same shall, nevertheless, be enforceable
to the full extent permissible. This Irrevocable Proxy shall be
binding upon the heirs, personal representatives, executors, and assigns of
Xxxxxxx.
This
Irrevocable Proxy shall be
enforced, governed by and construed in accordance with the laws of the State
of
Indiana without regard to principles of conflicts of laws.
Dated: November
30, 2007
By:
|
/s/ Xxxx X. Xxxxxxx | |
Xxxx
X. Xxxxxxx
|
The
undersigned, being the Proxy Holders, do hereby consent to the restatement
of
the Original Proxy and the granting of this Irrevocable Proxy in place
thereof.
TONTINE
CAPITAL PARTNERS, L.P.
|
TONTINE
CAPITAL OVERSEAS MASTER FUND, L.P.
|
||
By: | /s/ Xxxxxxx X. Xxxxxxx | By: | /s/ Xxxxxxx X. Xxxxxxx |
Its: | Managing Member | Its: | Managing Member |