VOTING AGREEMENT
This Voting Agreement (this "AGREEMENT") is made and entered into as of
April __, 2000, between Coachmen Industries, Inc., an Indiana corporation
("COACHMEN"), and the undersigned shareholder ("SHAREHOLDER") of Mod-U-Kraf
Homes, Inc., a Virginia corporation (the "COMPANY").
RECITALS
A. Concurrently with the execution of this Agreement, Coachmen and the
Company are entering into an Agreement and Plan of Reorganization (the "MERGER
AGREEMENT") which provides, among other things, for the acquisition of the
Company by Coachmen pursuant to the merger (the "MERGER") of a wholly owned
subsidiary of Coachmen ("NEWCO') with and into the Company. Pursuant to the
Merger, all of the issued and outstanding shares of capital stock of the Company
owned by Shareholder will be converted at the Effective Time (as defined in the
Merger Agreement) into the right to receive cash on the basis described in the
Merger Agreement;
B. Shareholder is the beneficial owner (as defined in Rule 13d-3 under
the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")) of the
number of outstanding shares of capital stock of the Company indicated on Annex
I to this Agreement; and
C. As a material inducement to enter into the Merger Agreement,
Coachmen and Newco desire Shareholder to agree, and in consideration for good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Shareholder is willing to agree, to vote the Shares and New Shares
(as defined below) so as to facilitate consummation of the Merger.
NOW, THEREFORE, intending to be legally bound, the parties agree as
follows:
1. Agreement to Vote Shares; Additional Purchases; Transfers and
Encumbrance.
1.1 Agreement to Vote Shares. During the term of this
Agreement, at every meeting of the stockholders of the Company 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, Shareholder shall cause the Shares and any New
Shares (as defined below) to be voted:
(i) in favor of approval of the Merger and the
adoption and approval of the Merger Agreement including all actions contemplated
thereby; and
(ii) against approval of any proposal made in
opposition to, or in competition with, consummation of the Merger and the Merger
Agreement.
1.2 Definition. For purposes of this Agreement, "SHARES" shall
mean all issued and outstanding shares of capital stock of the Company for which
Shareholder is the beneficial owner or over which Shareholder has voting
control, including any securities convertible into, or exercisable or
exchangeable for shares of the Company's capital stock, all as set forth on
Annex I attached hereto.
1.3 Additional Purchases. Shareholder agrees that any shares
of capital stock of the Company that Shareholder purchases, or with respect to
which Shareholder otherwise acquires beneficial ownership or voting control
after the execution of this Agreement and prior to the date of termination of
this Agreement ("NEW SHARES"), shall be subject to the terms and conditions of
this Agreement to the same extent as if they constituted Shares.
1.4 Transfer and Encumbrance. Without the prior written
consent of Coachmen, Shareholder agrees not to transfer, sell, exchange, pledge,
gift, or otherwise dispose of or encumber (collectively, "TRANSFER") any of the
Shares or any New Shares or to discuss, negotiate, or make any offer or
agreement relating thereto. Shareholder acknowledges that the intent of the
foregoing sentence is to ensure that Coachmen retains the right under the Proxy
(as defined in Section 2 hereof) to vote the Shares and any New Shares in
accordance with the terms of the Proxy.
2. Irrevocable Proxy. Concurrently with the execution of this
Agreement, Shareholder agrees to deliver to Coachmen a proxy in the form
attached hereto as Exhibit A (the "PROXY") with respect to the Shares and New
Shares, which, subject to Section 5 hereof, shall be irrevocable to the fullest
extent permitted by applicable law.
3. Representations and Warranties of the Shareholder. Shareholder is
the beneficial owner of the Shares free and clear of any liens, claims, options,
charges or other encumbrances. Shareholder has full authority to vote and direct
the voting of the Shares with respect to the matters contemplated hereby and has
full power and authority to make, enter into and carry out the terms of this
Agreement and the Proxy.
4. Additional Documents. Shareholder agrees to execute and deliver any
additional documents necessary or desirable, in the reasonable opinion of
Coachmen, to carry out the intent of this Agreement.
5. Termination. This Agreement and the Proxy shall terminate as of the
earlier to occur of (i) such date and time as the Merger shall become effective
in accordance with the terms and provisions of the Merger Agreement or (ii) such
date and time as the Merger Agreement shall have been terminated in accordance
with its terms.
6. Miscellaneous.
6.1 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, then the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
6.2 Binding Effect and Assignment. This Agreement and all of
the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns and any
person or entity to which legal or beneficial ownership of such Shares or New
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Shares shall pass, whether by operation of law or otherwise, but, except as
otherwise specifically provided herein, neither this Agreement nor any of the
rights, interests or obligations of the parties hereto may be assigned by either
of the parties without prior written consent of the other.
6.3 Amendments and Modification. This Agreement may not be
modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the parties hereto.
6.4 Specific Performance; Injunctive Relief. The parties
hereto acknowledge that Coachmen will be irreparably harmed and that there will
be no adequate remedy at law for a violation of any of the covenants or
agreements of Shareholder set forth herein. Therefore, it is agreed that, in
addition to any other remedies that may be available to Coachmen upon any such
violation, Coachmen shall have the right to enforce such covenants and
agreements by specific performance, injunctive relief or by any other means
available to Coachmen at law or in equity.
6.5 Indemnity by Coachmen. Both Coachmen and the Shareholder
believe that the Merger, Merger Agreement and the consideration and transactions
contemplated thereby are on fair terms and have been negotiated at arms length
and in good faith. In the event (i) the Shareholder's Shares or New Shares are
voted in favor of the Merger and Merger Agreement, and (ii) a claim is made by
any stockholder of the Company (who is not a signatory to a voting agreement in
form and substance as this Agreement) that the Shareholder has breached
Shareholder's fiduciary duty as an officer or director of the Company by the
making and execution of this Agreement, then Coachmen agrees to defend,
indemnify and hold harmless the Shareholder from any such claim. Coachmen shall
have the right to defend any such claim at its sole discretion and expense.
6.6 Notices. All notices and other communications relating to
this Agreement shall be in writing, shall be (i) upon delivery, if delivered
personally or by commercial messenger or courier service, (ii) one business day
after the day of a facsimile transmission, if sent by facsimile with confirming
copy by U.S. mail (first class, postage prepaid), or (iv) one business day after
the business day of deposit with Federal Express or similar carrier for
overnight delivery, freight prepaid, in each case to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
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If to Coachmen or Newco: Coachmen Industries, Inc.
0000 Xxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Lauers, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Xxxxx, Tarrant & Xxxxx
000 X. Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000-0000
Attn: Judge X. Xxxxxx XX, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Shareholder: To the address for notice set forth
on the signature page hereof.
With a copy to: Hunton & Xxxxxxxx
Riverfront Plaza, East Tower
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall only be
effective upon receipt.
6.7 Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the corporate laws of the State of
Virginia and, with respect to matters of law other than corporate law, the laws
of the State of Virginia as they apply to contracts entered into and wholly to
be performed within such state by residents thereof.
6.8 Entire Agreement. This Agreement contains the entire
understanding of the parties in respect of the subject matter hereof, and
supersedes all prior negotiations and understandings between the parties with
respect to such subject matter.
6.9 Effective Date. This Agreement shall become effective upon
execution of the Merger Agreement.
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IN WITNESS WHEREOF, the parties have caused this Voting Agreement to be
duly executed on the date and year first above written.
COACHMEN INDUSTRIES, INC.
By: /s/ X. X. Xxxxx
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Name: X. X. Xxxxx
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Title: Executive Vice President
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SHAREHOLDER:
By:
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Name:
------------------------------------
Title:
-----------------------------------
Shareholder's Address for Notice:
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ANNEX I
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Shareholder beneficially owns and has voting control over the following
capital stock of the Company:
EXHIBIT A
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IRREVOCABLE PROXY
The undersigned Shareholder of Mod-U-Kraf Homes, Inc., a Virginia
corporation (the "COMPANY"), hereby irrevocably appoints the directors on the
Board of Directors of Coachmen Industries, Inc., an Indiana corporation
("COACHMEN"), and each of them, as the sole and exclusive attorneys and proxies
of the undersigned, with full power of substitution and resubstitution, to the
full extent of the undersigned's rights with respect to the voting of the Shares
and New Shares (as each such term is defined in the Voting Agreement of even
date between Coachmen and the Stockholder (the "VOTING AGREEMENT")) on the
matters described below (and on no other matter), until such time as the Voting
Agreement shall be terminated in accordance with its terms. Upon the execution
hereof, all prior proxies given by the undersigned with respect to the Shares
and any and all other shares or securities issued or issuable in respect thereof
on or after the date hereof are hereby revoked and no subsequent proxies will be
given.
This proxy is irrevocable (to the fullest extent permitted by law and
subject to the termination of the Proxy as set forth in Section 5 of the Voting
Agreement), is granted pursuant to the Voting Agreement, is granted in
consideration of Coachmen entering into the Merger Agreement (as defined in the
Voting Agreement) and is coupled with an interest. The attorneys and proxies
named above will be empowered at any time prior to the termination of this proxy
pursuant to Section 5 of the Voting Agreement to exercise all voting rights
(including, without limitation, the power to execute and deliver written
consents with respect to the Shares and the New Shares) of the undersigned at
every annual, special or adjourned meeting of the Company's stockholders, and in
every written consent in lieu of such a meeting, or otherwise, to vote the
Shares and the New Shares:
(i) in favor of approval of the Merger (as defined in the Voting
Agreement) and the adoption and approval of the Merger
Agreement including all actions contemplated thereby; and
(ii) against approval of any proposal made in opposition to, or in
competition with, consummation of the Merger and the Merger
Agreement (collectively, the matters identified in clauses
"(i)" and "(ii)" hereof are referred to herein as the
"SPECIFIED MATTERS").
The attorneys and proxies named above may only exercise this proxy to
vote the Shares and any New Shares subject hereto at any time prior to the
termination of this proxy pursuant to Section 5 of the Voting Agreement, at
every annual, special or adjourned meeting of the stockholders of the Company
and in every written consent in lieu of such meeting. The undersigned
Shareholder may vote the Shares and New Shares on all matters other than the
Specified Matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
This proxy is irrevocable and coupled with an interest.
Dated: April __, 2000
Signature of Shareholder:
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Print Name of Shareholder:
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***PROXY***
SCHEDULE A
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The following persons have executed Voting Agreements and Irrevocable Proxies in
the form attached hereto:
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NAME AMOUNT OF SHARES
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Xxxxxx X. Xxxxxx 173,406
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Xxxx X. Xxxxxx 69,000
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Xxxx X. Xxxxx & Xxxxxx X. Xxxxx 66,000
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Xxxxxx X. Xxxxx 12,547
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Xxxxx X. Xxxxxxxx & Xxxxxxx X. Xxxxxxxx 30,052
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W. Xxxxxx Xxxxxx 36,720
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