Exhibit 2
STOCKHOLDER VOTING AGREEMENT
THIS STOCKHOLDER VOTING AGREEMENT(this "Agreement"), dated as of May 26, 2000,
is by and among those individuals named as Stockholders on the signature page
hereto (each of whom is individually designated herein as a "Stockholder" and
collectively referred to herein as the "Stockholders"), XXXX XX INDUSTRIES,
INC., a Delaware corporation (the "Company"), and MIV Acquisition Corporation,
a Delaware corporation ("Merger Sub"). Capitalized terms used herein and not
otherwise defined herein have the meaning given such terms in the Merger
Agreement (as defined below);
WHEREAS, the Company and Merger Sub are concurrently with the execution of
this Agreement entering into an Agreement and Plan of Merger, dated as of the
date hereof (as it may be modified or amended from time to time, the "Merger
Agreement") pursuant to which, among other things, Merger Sub would be merged
with and into the Company;
WHEREAS, the Stockholders have reviewed a copy of the Merger Agreement;
WHEREAS, each Stockholder owns of record and/or beneficially and has the
unrestricted power to vote the shares of Common Stock, par value $.01 per
share, of the Company (the "Shares") listed opposite such Stockholder's name
on Exhibit A hereto;
WHEREAS, under the terms of the Merger Agreement, the Company has agreed,
among other things, to call a special meeting of its stockholders for the
purpose of voting upon the approval of the Merger Agreement and the
transactions contemplated thereby, including the Merger (such meeting,
together with any adjournments thereof, the "Special Meeting"); and
WHEREAS, it is a condition to Merger Sub entering into the Merger Agreement
that the Stockholders shall have entered into this Agreement providing, among
things, that the Stockholders vote their Shares in favor of the Merger.
NOW, THEREFORE, in consideration of the Company and Merger Sub entering into
the Merger Agreement and the respective representations, warranties,
covenants and agreements set forth herein and for other good and valuable
consideration, the parties hereto agree as follows:
1. Representations and Warranties of the Stockholders. Each Stockholder
severally (not jointly and severally) represents and warrants to Merger Sub
as follows:
(a) Ownership of Securities. As of the date hereof, such Stockholder is
the record and/or beneficial owner of the number of Shares (together with any
Shares or other capital stock or securities of the Company hereafter acquired
by such Stockholder, the "Subject Securities") set forth on Exhibit A attached
hereto. Such Stockholder (i) has sole voting power and sole power to issue
instructions with respect to the voting of the Subject Securities, sole power
of disposition, sole power of exercise or conversion and the sole power to
demand appraisal rights, in each case with respect to all of the Subject
Securities and (ii) on the date of the Special Meeting, will have sole voting
power and sole power to issue instructions with respect to the voting of all
of such Subject Securities, and the sole powers of disposition, exercise and
to demand appraisal rights, in each case with respect to all of such Subject
Securities. As of the date hereof, such Stockholder does not beneficially or
of record own any Shares or other capital stock or securities of the Company
other than those set forth on Exhibit A.
2
(b) Power; Binding Agreement. Such Stockholder has the legal capacity,
power and authority to enter into and perform all of such Stockholder's
obligations under this Agreement. The execution, delivery and performance
of this Agreement by such Stockholder will not violate any other agreement
to which such Stockholder is a party including, without limitation, any trust
agreement, voting agreement, stockholders' agreement or voting trust. This
Agreement has been duly and validly authorized, executed and delivered by
such Stockholder and constitutes a valid and binding agreement of such
Stockholder, enforceable against such Stockholder in accordance with its
terms, except to the extent that enforceability may be limited by applicable
bankruptcy, reorganization, insolvency, moratorium or other laws affecting
the enforcement of creditors' rights generally and by general principles of
equity, regardless of whether such enforceability is considered in a
proceeding at law or in equity.
(c) No Conflicts. No filing with, and no permit, authorization, consent or
approval of, any state or federal public body or authority is necessary for
the execution of this Agreement by such Stockholder and the consummation by
such Stockholder of the transactions contemplated hereby. Neither the
execution and delivery of this Agreement by such Stockholder nor the
consummation by such Stockholder of the transactions contemplated hereby nor
compliance by such Stockholder with any of the provisions hereof shall
conflict with or result in any breach of any organizational documents
applicable to such Stockholder, result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a default (or
give rise to any third-party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, license, contract,
commitment, arrangement, understanding, agreement or other instrument or
obligation of any kind to which such Stockholder is a party or by which such
Stockholder's properties or assets may be bound or violate any order, writ,
injunction, decree, judgment, order, statute, rule or regulation applicable
to such Stockholder or any of such Stockholder's properties or assets.
(d) No Liens. The Subject Securities are now and at all times during the
term hereof will be held by such Stockholder, or by a nominee or custodian
for the benefit of such Stockholder, free and clear of all liens, claims,
security interests, proxies, voting trusts or agreements, understandings or
arrangements or any other encumbrances whatsoever, except for any
encumbrances arising hereunder and under applicable securities laws.
2. Agreement to Vote. At every meeting of the stockholders of the
Company, including without limitation the Special Meeting, called with
respect to any of the following, and at every adjournment thereof, and on
every action or approval by written consent of the stockholders of the
Company with respect to any of the following, each Holder, severally and
not jointly, agrees that it shall vote or execute a written consent, as the
case may be, with respect to all the Subject Securities as to which it has
power to vote in any such vote or consent as follows:
3
(a) in favor of the Merger and the approval and adoption of the Merger
Agreement and each of the other transactions contemplated thereby;
(b) against the approval of an Acquisition Proposal; and
(c) against any other action or agreement (other than the Merger Agreement
or the transactions contemplated thereby) that could reasonably be expected
to impede, interfere with or delay the Merger or this Agreement including,
but not limited to: (i) any extraordinary corporate transaction, such as a
merger, consolidation or other business combination involving the Company or
its subsidiaries (other than a transaction involving Merger Sub; (ii) a sale,
lease or transfer of a material amount of assets of the Company or its
subsidiaries or a reorganization, recapitalization or liquidation of the
Company or its subsidiaries; (iii) any change in the management or board of
directors of the Company, except as otherwise agreed in writing by Merger Sub; (
iv) any material change in the present capitalization or dividend policy of
the Company or any amendment of the Company's articles of incorporation; or
(v) any other material change in the Company's corporate structure or
xxxxxxxx.Xx stockholder shall enter into any agreement, arrangement or
understanding with any Person the effect of which would be inconsistent or
violative of the provisions and agreements contained in this Section 2.
3. PROXY. EACH STOCKHOLDER HEREBY GRANTS TO, AND APPOINTS MERGER SUB
AND THE PRESIDENT OF MERGER SUB, IN HIS OR HER CAPACITY AS AN OFFICER OF
MERGER SUB, AND ANY INDIVIDUAL WHO SHALL HEREAFTER SUCCEED TO SUCH OFFICE,
AND ANY OTHER DESIGNEE OF MERGER SUB, EACH OF THEM INDIVIDUALLY, SUCH
STOCKHOLDER'S PROXY AND ATTORNEY-IN-FACT (WITH FULL POWER OF SUBSTITUTION)
TO VOTE OR ACT BY WRITTEN CONSENT WITH RESPECT TO THE SUBJECT SECURITIES WITH
RESPECT TO THE MATTERS IN CLAUSES (a), (b), and (c) OF SECTION I ABOVE. THIS
PROXY IS COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE, AND EACH
STOCKHOLDER WILL TAKE SUCH FURTHER ACTION OR EXECUTE SUCH OTHER INSTRUMENTS
AS MAY BE NECESSARY TO EFFECTUATE THE INTENT OF THIS PROXY AND HEREBY REVOKES
ANY PROXY PREVIOUSLY GRANTED BY IT WITH RESPECT TO THE SUBJECT SECURITIES.
4. Termination. This Agreement (including the proxy granted in Section
3 above) shall terminate on the earlier of:
(a) the date on which the Merger Agreement is terminated in accordance with
its terms, or
(b) the date on which the Merger is consummated.
Upon any termination of this Agreement, this Agreement shall thereupon become
void and of no further force and effect, and there shall be no liability in
respect of this Agreement or of any transactions contemplated hereby or by the
Merger Agreement on the part of any party hereto or any of its directors,
officers, partners, stockholders, employees, agents, advisors, representatives
or affiliates, provided, however, that nothing herein shall relieve any party
from liability for any breach of this Agreement prior to such termination;
and provided further that nothing herein shall limit, restrict, impair, amend
or otherwise modify the rights, remedies, obligations or liabilities of any
person under any other contract or agreement, including, without limitation,
the Merger Agreement.
4
5. Covenants of the Stockholders. Each Stockholder hereby agrees and
covenants that:
(a) No Solicitation. Such Stockholder shall not, directly or indirectly,
solicit (including by way of furnishing information) or respond to any
inquiries or the making of any Acquisition Proposal or any proposal by any
Person (other than Parent or Merger Sub and other than advising such Person
of the existence of this Agreement) with respect to the Company that
constitutes or could reasonably be expected to lead to an Acquisition
Proposal. If such Stockholder receives any such inquiry or proposal, then it
shall promptly inform Parent of the terms and conditions, if any, of such
inquiry or proposal and the identity of the Person making it. Such
Stockholder will immediately cease and cause to be terminated any existing
discussions or negotiations with any parties conducted heretofore with
respect to any of the foregoing.
(b) Restriction on Transfer, Proxies and Noninterference. Such Stockholder
shall not, directly or indirectly: (i) except pursuant to the terms of the
Merger Agreement, offer for sale, sell, transfer, tender, pledge, encumber,
assign or otherwise dispose of, or enter into any contract, option or other
arrangement or understanding with respect to or consent to the offer for sale,
sale, transfer, tender, pledge, encumbrance, assignment or other disposition
of, any or all of such Stockholder's Subject Securities; (ii) except as
contemplated hereby, grant any proxies or powers of attorney, deposit any
Subject Shares into a voting trust or enter into a voting agreement with
respect to any Subject Shares; or (iii) take any action that would make any
representation or warranty contained herein untrue or incorrect or have the
effect of preventing or disabling such Stockholder from performing its
obligations under this Agreement.
6. Appraisal Rights. Such Stockholder agrees not to exercise any rights
(including, without limitation, under Section 262 of the General Corporation
Law of the State of Delaware) to demand appraisal of any Subject Securities
which may arise with respect to the Merger.
7. Action in Stockholder Capacity Only. No Stockholder makes any
agreement or understanding hereunder as a director or officer of the Company.
Each Stockholder signs this Agreement solely in his, her or its capacity as
record and beneficial owners of the Subject Securities, and nothing herein
shall limit or affect any actions taken in such Stockholder's capacity as an
officer or director of the Company, including, without limitation, any
actions taken by such person in the exercise of such person's fiduciary
duties as a director of the Company.
8. Specific Performance. Each Stockholder hereby acknowledges that damages
would be an inadequate remedy for any breach of the provisions of this
Agreement and agrees that the obligations of the Stockholder shall be
specifically enforceable and that Merger Sub shall be entitled to injunctive
or other equitable relief upon such a breach by any Stockholder. Each
Stockholder further agrees to waive any bond in connection with the obtaining
of any such injunctive or equitable relief. This provision is without
prejudice to any other rights that Merger Sub may have against a Stockholder
for any failure to perform the Stockholder's obligations under this Agreement.
5
9. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE REGARDLESS OF THE LAWS THAT
MIGHT OTHERWISE GOVERN UNDER PRINCIPLES OF CONFLICTS OF LAWS APPLICABLE
THERETO.
10. Amendments; No Waivers.
(a) Any provision of this Agreement may be amended or waived prior to the
Effective Time if, and only if, such amendment or waiver is in writing and
signed, in the case of an amendment, by the Stockholders, the Company and
Merger Sub or in the case of a waiver, by the party against whom the waiver
is to be effective.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
11. Further Actions. Each of the parties agrees to cooperate fully in the
effectuation of the transactions contemplated hereby and to execute any and
all additional documents or take such additional actions as shall be
reasonably necessary or appropriate for such purpose.
12. Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, successors and assigns. No party
may assign, delegate or otherwise transfer any of its rights or obligations
under this Agreement without the prior written consent of the other parties
hereto.
13. Exclusive Jurisdiction. The parties agree that any legal action,
suit or proceeding arising out of or relating to this Agreement or the
agreements and transactions contemplated hereby shall be exclusively
instituted in any federal court located in the State of Delaware or any
Delaware state court, which shall be the exclusive jurisdiction and venue
of said legal proceedings, and each party hereto consents to the personal
jurisdiction of such courts and waives any objection that such party may now
or hereafter have to the personal jurisdiction of such courts or the laying
of venue of any such action, suit or proceeding.
14. Notices. All notices and other communications given or made pursuant
hereto shall be in writing and shall be deemed to have been duly given or
made if and when delivered personally or by overnight courier or sent by
electronic transmission, with confirmation received, to the address or
telecopy number specified in this Section 14 or to such other address or
telecopy number as any party may furnish to the other parties in writing
in accordance herewith:
(a) If to any Stockholder, to the applicable address set forth opposite
such Stockholders' name on Exhibit A hereto.
(b) If to the Company or Merger Sub, to the applicable address set forth
in Section 10.1 of the Merger Agreement.
15. Counterparts; Effectiveness. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
16. Severability. If any term or other provision of this Agreement is
invalid, illegal, or incapable of being enforced by any rule or law, or
public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the legal substance
of the rights and obligations contemplated by this Agreement are 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 order that the Merger and other transactions contemplated by this
Agreement be consummated as originally contemplated to the fullest extent
possible.
17. Enforcement of Agreement. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
was not performed in accordance with its specific terms or was otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof, this being in addition
to any other remedy to which they are entitled at law or in equity.
[Signature page follows]
6
IN WITNESS WHEREOF, each Stockholder, the Company and Merger Sub have executed
this Agreement to be effective as of the date set forth in the first paragraph
above.
Company
XXXX XX INDUSTRIES, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
Merger Sub
MIV ACQUISITION CORPORATION
a Delaware corporation
By: /s/ Francesco Loredan
------------------------------
Name: Francesco Loredan
Title: President
Stockholders
By: /s/ Xxxxxxxxx X. Xxxxxxx
------------------------------
XXXXXXXXX X. XXXXXXX
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
XXXXXXX X. XXXXXXXX
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
XXXXXX X. XXXXXX
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
XXXXXXX X. XXXXXXX
8
Exhibit A
Name of Stockholder/Address Number of Shares
Xxxxxxxxx X. Xxxxxxx 4,209,053
Xxxxxxx X. Xxxxxxxx 677,554
Xxxxxx X. Xxxxxx 1,530,896
Xxxxxxx X. Xxxxxxx 756,360
---------
TOTAL: 7,173,863
