VOTING AGREEMENT AND IRREVOCABLE PROXY
This
VOTING AGREEMENT AND IRREVOCABLE PROXY (this “Agreement”), dated as of December
13, 2006 between Maxco,
Inc., a Michigan corporation (“Maxco”), and
the
other parties who are signatories hereto (the “Shareholders”);
WHEREAS,
concurrently with the execution of this Agreement, Quanex Corporation
(“Quanex”), Quanex Technologies, Inc. (the “Purchaser”), Atmosphere Annealing,
Inc. (“AAI”), BCGW, Inc. (“BCGW” together with AAI, the “Sellers”) and Maxco are
executing that certain Asset Purchase and Sale Agreement dated as of December
13, 2006 (the “Purchase Agreement”) whereby Purchaser will acquire certain
assets of the Sellers; and
WHEREAS,
as a condition to the entering into the Purchase Agreement, Quanex and the
Purchaser (the “Purchasing Parties”) have required that each Shareholder listed
on Schedule A attached to this Agreement enter into, and each Shareholder listed
on Schedule A has agreed to enter into, this Agreement;
NOW,
THEREFORE, in consideration of the premises and the mutual covenants and
agreements contained in this Agreement, and intending to be legally bound by
this Agreement, Maxco and the Shareholders hereby agree as follows:
ARTICLE
I
AGREEMENT
TO SUPPORT ACQUISITION
Section
1.1. Voting.
The
Shareholders, being the holders of the shares of common stock, par value $1.00
per share of Maxco (“Stock”) set forth opposite their names on Schedule A, agree
to vote at the shareholders’ meeting referred to in Section 6.13 of the Purchase
Agreement (the “Meeting”) their shares of Stock and all other shares of Stock
the Shareholders own of record as of the record date to determine the
shareholders of Maxco entitled to vote at the Meeting (the “Record Date”), and
to direct the vote of all shares of Stock that the Shareholders own of record
or
in a brokerage account and have the direct or indirect power and authority
to
direct the voting thereof as of the Record Date (collectively, the “Shares”), in
favor of the authorization and approval of the Purchase Agreement and the
transactions described in the Purchase Agreement.
Section
1.2. Proxy.
To
better effect the provisions of Section 1.1, each Shareholder revokes any
previously executed proxies and constitutes and appoints Xxx X. Xxxx and Xxxx
X.
Xxxxx, and any one of them (the “Proxy Holder”), with full power of
substitution, his, her or its true and lawful proxy and attorney-in-fact to
vote
at the Meeting all of such Shareholder’s Shares in favor of the authorization
and approval of the Purchase Agreement, and the transactions described in the
Purchase Agreement, with such modifications as the parties thereto may make.
This proxy shall be limited to the power to vote the Shares in the manner set
forth in this Section 1.2 and shall not extend to any other matters. The vote
of
the Proxy Holder shall control in any conflict between its vote of the Shares
and a vote by any Shareholder of the Shares, and Maxco agrees to recognize
the
vote of the Proxy Holder instead of the vote of any Shareholder if the
Shareholders do not vote in favor of the authorization and approval of the
Purchase Agreement as set forth in Section 1.1 hereof.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES
Representations
and Warranties.
Each
Shareholder represents and warrants to Maxco as follows:
(a) Ownership
of Shares.
Such
Shareholder is a record and beneficial owner of the number of Shares set forth
opposite such Shareholder's name on Schedule A hereto. On the date hereof,
the
Shares set forth opposite such Shareholder's name on Schedule A constitute
all
of the shares of Stock owned of record or or in a brokerage account by such
Shareholder. Such Shareholder has sole voting power and sole power of
disposition and sole power to engage in the actions set forth herein, in each
case with respect to all of the Shares set forth opposite such Shareholder's
name on Schedule A, with no restrictions on such rights, except pursuant to
the
terms of this Agreement.
(b) Power;
Binding Agreement.
Such
Shareholder has the legal capacity, power and authority to enter into and
perform all of such Shareholder's obligations under this Agreement. The
execution, delivery and performance of this Agreement by such Shareholder will
not violate any other agreement to which such Shareholder is a party or by
which
such Shareholder or any of such Shareholder's properties or assets are or may
be
bound, including, without limitation, any trust agreement, voting agreement,
shareholders agreement or voting trust. This Agreement has been duly and validly
executed and delivered by such Shareholder and constitutes a valid and binding
agreement of such Shareholder, enforceable against such Shareholder in
accordance with its terms. There is no beneficiary or holder of a voting trust
certificate or other interest of any trust of which a Shareholder is trustee
whose consent is required for the execution and delivery of this Agreement
or
the consummation of the transactions contemplated hereby. If such Shareholder's
Shares constitute community property, this Agreement has been duly authorized,
executed and delivered by, and constitutes a valid and binding agreement of,
each person having community property rights in such Shares, enforceable against
such person in accordance with its terms.
(c) No
Conflicts.
No
filing with, and no permit, authorization, consent or approval of, any state
or
federal public body or authority or any other person (or entity) is necessary
for the execution of this Agreement by such Shareholder and, the consummation
by
such Shareholder of the transactions contemplated hereby. Neither the execution
and delivery of this Agreement by such Shareholder nor, the consummation by
such
Shareholder of the transactions contemplated hereby nor compliance by such
Shareholder with any of the provisions hereof will (i) 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 Shareholder is a party or by which such
Shareholder or any of such Shareholder's properties or assets are or may be
bound or (ii) violate any order, writ, injunction, decree, judgment, order,
statute, rule or regulation applicable to such Shareholder or any of such
Shareholder's properties or assets.
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(d) No
Adverse Claims.
Such
Shareholder's Shares and the certificates representing such Shares are now
and
at all times during the term hereof will be held by such Shareholder, or by
a
nominee or custodian for the benefit of such Shareholder, 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 such encumbrances or proxies arising under this Agreement.
(e) No
Brokers.
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 on arrangements
made
by or on behalf of such Shareholder.
ARTICLE
III
CERTAIN
COVENANTS AND AGREEMENTS
Section
3.1. Certain
Covenants of Shareholders.
Each
Shareholder hereby covenants and agrees that until this Agreement is terminated
in accordance with its terms, without the consent of the Purchasing Parties
such
Shareholder will not, and will not agree to, directly or indirectly sell,
transfer, assign, further pledge or hypothecate, cause to be redeemed, or
otherwise dispose of any of the Shares or grant any proxy or interest in or
with
respect to any such Shares or deposit such Shares into a voting trust or enter
into another voting agreement or arrangement with respect to such Shares
(“Transfer”), except as contemplated by this Agreement. If a Transfer of Shares
does occur, the parties agree that such Transfer will only be made if the
transferee, as a condition to such Transfer, executes
and delivers to Maxco an agreement in form and substance satisfactory to Maxco
and the Purchasing Parties pursuant to which such transferee agrees to be bound
by the terms of this Agreement.
Section
3.2. No
Solicitation.
Each
Shareholder hereby covenants and agrees that until this Agreement is terminated
in accordance with its terms, such Shareholder will not, in his, her or its
capacity as shareholder of Maxco or otherwise, directly or
indirectly,
(i) oppose,
solicit proxies against, encourage any shareholder to vote against or abstain
from voting on, or otherwise frustrate or hinder the approval and authorization
of the Purchase Agreement or any of the other agreements or transactions
contemplated thereby, or
(ii) encourage,
advise or assist any shareholder in dissenting from the the approval of the
Purchase Agreement.
Section
3.3. Binding
Obligations.
Each
Shareholder agrees that this Agreement and the obligations hereunder shall
attach to such Shareholder's Shares and shall be binding upon any person or
entity to which legal or beneficial ownership of such Shares shall pass, whether
by operation of law or otherwise, including without limitation such
Shareholder's heirs, guardians, administrators or successors.
Section.
3.4. Material
Reliance.
The
Shareholders acknowledge that the Purchasing Parties and Maxco are relying
on
this Agreement in incurring expenses in preparing a proxy statement, in
proceeding with the filing of applications for regulatory approvals, and in
undertaking other actions necessary for the consummation of the transactions
described in the Purchase Agreement and that the proxy granted hereby is coupled
with an interest and is irrevocable to the full extent permitted by applicable
law, and will take such further action and execute such other instruments as
may
be necessary to effectuate the intent of this proxy. The Shareholders and Maxco
acknowledge that the performance of this Agreement is intended to benefit the
Purchasing Parties.
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ARTICLE
IV
TERMINATION
Termination.
The
irrevocable proxy granted pursuant hereto shall continue in effect until the
earlier to occur of (a) the
termination of the Purchase Agreement, as it may be amended or extended from
time to time, (b) the
consummation of the transactions described in by the Purchase Agreement or
(c)
March 1, 2007.
ARTICLE
V
MISCELLANEOUS
Section
5.1. Amendments.
This
Agreement may not be modified, amended, altered or supplemented with respect
to
a particular Shareholder except upon the execution and delivery of a written
agreement executed by the Purchasing Parties, AAI, BCGW, Maxco and the
Shareholder.
Section
5.2. Counterparts.
This
Agreement may be executed simultaneously in two or more counterparts, each
of
which shall be deemed an original but all of which shall constitute one and
the
same instrument.
Section
5.3. Entire
Agreement.
This
Agreement, together with the Purchase Agreement and the agreements contemplated
thereby, embody the entire agreement and understanding of the parties hereto
in
respect of the subject matter contained herein. This Agreement supersedes all
prior agreements and understandings among the parties with respect to the
subject matter contained herein.
Section
5.4. Notices.
All
notices, requests, demands and other communications required or permitted by
this Agreement shall be in writing and shall be deemed to have been duly given
if delivered by hand or mail, certified or registered mail (return receipt
requested) with postage prepaid to the addresses of the parties hereto set
forth
in the Purchase Agreement (in the case of all parties other than the
Shareholders) and the addresses of the Shareholders set forth on Schedule A,
or
to such other address as any party may have furnished to the other parties
in
writing in accordance therewith.
Section
5.5. Descriptive
Headings.
The
descriptive headings used 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.
Section
5.6. Severability.
Whenever possible, each provision or portion of any provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law but if any provision or portion of any provision of this Agreement is held
to be invalid, illegal or unenforceable will not affect any other provision
or
portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
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Section
5.7. Further
Assurances.
From
time to time, at the Purchasing Parties’ request and without further
consideration, each Shareholder shall execute and deliver such additional
documents and take all such further action as may be necessary or desirable
to
consummate and make effective, in the most expeditious manner practicable,
the
transactions contemplated by this Agreement.
Section
5.8. Governing
Law.
This
Agreement and the relations among the parties hereto arising from this Agreement
shall be governed by and construed in accordance with the laws of the State
of
Michigan, regardless of the laws that might otherwise govern under applicable
principles of conflicts of laws thereof.
Section
5.9. Specific
Performance. Each
party to this Agreement acknowledges and agrees that each party hereto will
be
irreparably damaged in the event any of the provisions of this Agreement are
not
performed by the parties in accordance with their specific terms or are
otherwise breached. Accordingly, it is agreed that each of the parties hereto
shall be entitled to an injunction to prevent breaches of this Agreement and
to
specific enforcement of this Agreement and its terms and provisions in any
action instituted in any court of the United States or any state having subject
matter jurisdiction, in addition to any other remedy to which the parties hereto
may be entitled at law or in equity.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date above
written.
| MAXCO, INC. | ||
| |
|
|
| By: | /s/ Xxx X. Xxxx | |
|
Xxx X. Xxxx, President |
||
| SHAREHOLDER: | ||
| ROI CAPITAL MANAGEMENT, INC. | ||
| |
|
|
| By: | /s/ Xxxxxxxx X. Xxxxxxxxx | |
|
Name: Xxxxxxxx X. Xxxxxxxxx |
||
| Title: General Partner | ||
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SCHEDULE
A
|
NAME
AND ADDRESS OF SHAREHOLDER
|
NUMBER
OF SHARES
|
% OF
VOTES
|
|
ROI
Capital Management, Inc.
000
Xxxxx Xxxxxxx Xxxx, Xxx. 000
Xxxxxxxxxx,
XX 00000
|
878,492
|
22.49%
|
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