VOTING AGREEMENT
VOTING
AGREEMENT, dated as of February 9, 2007 (this “Agreement”), by and among the
stockholders listed on the signature page(s) hereto (collectively, the
“Stockholders” and each individually, a “Stockholder”), and AREP Car Holdings
Corp., a Delaware corporation (the “Parent”). Capitalized terms used and not
otherwise defined herein shall have the respective meanings ascribed to them
in
the Merger Agreement (as defined below).
RECITALS
WHEREAS,
as of the date hereof, the Stockholders beneficially own an aggregate of
11,994,944 shares of common stock of Xxxx Corporation, a Delaware corporation
(the “Company”), as set forth on Schedule I hereto (such shares, or any other
voting or equity securities of the Company hereafter acquired by any Stockholder
prior to the termination of this Agreement, being referred to herein
collectively as the “Shares”);
WHEREAS,
concurrently with the execution of this Agreement, Parent, AREP Car Acquisition
Corp., a Delaware corporation and wholly-owned subsidiary of Parent (“Merger
Sub”), and the Company are entering into an Agreement and Plan of Merger, dated
as of the date hereof (the “Merger Agreement”), pursuant to which, upon the
terms and subject to the conditions thereof, Merger Sub will be merged with
and
into the Company, and the Company will be the surviving corporation (the
“Merger”); and
WHEREAS,
as a condition to the willingness of Parent to enter into the Merger Agreement,
Parent has required that the Stockholders agree, and in order to induce Parent
to enter into the Merger Agreement the Stockholders are willing, to enter into
this Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements contained herein, and intending to be legally bound hereby, the
parties hereby agree, severally and not jointly, as follows:
Section
1. Voting
of Shares.
(a)
Each
Stockholder covenants and agrees that until the termination of this Agreement
in
accordance with the terms hereof, at the Company’s special meeting of
stockholders or any other meeting of the stockholders of the Company, however
called, and in any action by written consent of the stockholders of the Company,
such Stockholder will vote, or cause to be voted, all of such Stockholder’s
respective Shares owned at the record date for such meeting or consent (i)
in
favor of the adoption of the Merger Agreement and the approval of the Merger
contemplated by the Merger Agreement and any actions required in furtherance
thereof, as the Merger Agreement may be modified or amended from time to time
(provided, however, that the merger consideration is no less than $36 per share
in cash net to the Company’s stockholders) and (ii) in favor of any Alternative
Acquisition Agreement (provided, however, that the merger consideration is
no
less than $36 per share in cash net to the Company’s stockholders) including, in
each case, any other matter on the ballot related to the Merger Agreement or
an
Alternative Acquisition Agreement. This Agreement does not relate to any non
voting securities of the Company, or to derivatives, swaps or other arrangements
with respect to shares of capital stock of the Company where the Stockholder
has
no right to vote or direct the vote of such shares.
1
Section
2. Transfer
of Shares.
Each
Stockholder covenants and agrees that such Stockholder will not directly or
indirectly (i) sell, assign, transfer, tender, pledge, encumber or otherwise
dispose of any of the Shares, (ii) deposit any of the Shares into a voting
trust
or enter into a voting agreement or arrangement with respect to the Shares
or
grant any proxy or power of attorney with respect thereto that is inconsistent
with this Agreement or (iii) enter into any contract, option or other
arrangement or undertaking with respect to the direct or indirect sale,
assignment, transfer, tender, pledge, encumbrance, or other disposition of
any
Shares; provided,
however,
that
notwithstanding the foregoing a Stockholder may transfer Shares or agree to
transfer Shares to any Affiliate of the Stockholder, including, but not limited
to Parent or Merger Sub, provided
that
in each
such case the transferee agrees in writing to be bound by this Agreement.
Nothing herein shall restrict or otherwise limit the encumbrance or pledge
of
the Shares pursuant to margin and/or other pledge arrangements, provided that
in
the event of any new margin or pledge arrangement, the voting rights of such
Shares shall be subject to Section 1 hereof.
Section
3. Waiver
of Appraisal Rights.
Each
Stockholder hereby waives, to the full extent of the law, and agrees not to
assert any appraisal rights pursuant to Section 262 of the DGCL or otherwise
in
connection with the Merger with respect to any and all Shares held by the
undersigned of record or beneficially owned.
Section
4. Representations
and Warranties of the Stockholders.
Each
Stockholder on his or its own behalf hereby severally represents and warrants
to
Parent with respect to such Stockholder and such Stockholder’s ownership of the
Shares as follows:
(a)
_Number
of Shares.
Each
Stockholder represents, warrants and agrees that Schedule
I
annexed
hereto sets forth, adjacent to the name of such stockholder, the number of
Shares of which the Stockholder is the beneficial owner (it being understood
and
agreed that the beneficial ownership shall not include any rights with respect
to derivatives, swaps or other arrangements). Each Stockholder represents,
warrants and agrees that, as of the date hereof, those Shares on Schedule I
constitute all of the Shares of which such Stockholder has the power to vote
or
direct the vote. High River Limited Partnership and Koala Holding Limited
Partnership represent that the Shares subject to this Voting Agreement are
all
of the Shares in which Xxxx X. Icahn or his affiliates have beneficial ownership
or voting rights.
(b)
Power,
Binding Agreement.
The
Stockholder is a limited partnership duly formed, under the laws of its state
of
formation and has full limited partnership power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement by the Stockholder and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by the appropriate governing body of the Stockholder, and, no other
limited partnership proceedings on the part of the Stockholder are necessary
to
authorize the execution, delivery and performance of this Agreement by the
Stockholder and the consummation of the transactions contemplated hereby. The
Stockholder has duly and validly executed this Agreement and this Agreement
constitutes a legal, valid and binding obligation of the Stockholder enforceable
against the Stockholder in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws affecting creditors’ rights generally and
by general equitable principles (regardless of whether enforceability is
considered in a proceeding in equity or at law).
2
Section
5. Representations
and Warranties of the Parent.
Parent
represents and warrants to Stockholders as follows:
(a)
Power,
Binding Agreement.
Parent
is a corporation duly incorporated, validly existing and in good standing under
the laws of the State of Delaware and has full corporate power and authority
to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the Merger
Agreement by the Parent and the consummation of the transactions contemplated
hereby and thereby have been duly and validly authorized by the Board of
Directors of Parent, and, no other corporate proceedings on the part of Parent
are necessary to authorize the execution, delivery and performance of this
Agreement and the Merger Agreement by Parent and the consummation of the
transactions contemplated hereby and thereby. Parent has duly and validly
executed this Agreement and this Agreement constitutes a legal, valid and
binding obligation of Parent enforceable against the Parent in accordance with
its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws affecting
creditors’ rights generally and by general equitable principles (regardless of
whether enforceability is considered in a proceeding in equity or at
law).
Section
6. Termination.
Notwithstanding any other provision herein, the obligations of the Stockholders
set forth in this Agreement shall not be effective or binding until after such
time as the Merger Agreement is executed and delivered by Parent, Merger Sub
and
the Company. This Agreement shall terminate immediately upon the earlier of
(i)
termination of the Merger Agreement in accordance with its terms unless such
termination is pursuant to Section 7.1(g) or 7.1(h) of the Merger Agreement,
in
which event this Agreement will terminate upon the termination of any obligation
under the Alternative Acquisition Agreement for which the Stockholders are
required to vote pursuant to the provisions set forth in Section 1 hereof,
and
(ii) the Effective Time or in the event such an Alternative Acquisition
Agreement is entered into, the consummation of the transaction contemplated
by
such Alternative Acquisition Agreement, or if earlier, the termination of such
Alternative Acquisition Agreement. Upon such termination, this Agreement shall
immediately become void, there shall be no liability hereunder on the part
of the Stockholders and all rights and obligations of the parties to this
Agreement shall cease.
Section
7. Specific
Performance.
The
parties hereto agree that irreparable damage would occur in the event any
provision of this Agreement was 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.
Section
8. Miscellaneous.
(a)
Entire
Agreement.
This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings, both written and oral, between the parties with respect thereto.
This Agreement may not be amended, modified or rescinded except by an instrument
in writing signed by each of the parties hereto.
3
(b)
Severability.
If any
term or other provision of this Agreement is invalid, illegal or incapable
of
being enforced by any rule of law, or public policy, all other conditions and
provisions of this Agreement shall nevertheless remain in full force and effect.
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 to the fullest extent permitted by applicable law in a
mutually acceptable manner in order that the terms of this Agreement remain
as
originally contemplated to the fullest extent possible.
(c)
Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Delaware without regard to the principles of conflicts of law
thereof.
(d)
Counterparts.
This
Agreement may be executed in counterparts, each of which shall be deemed an
original and all of which together shall constitute one and the same
instrument.
(e)
Notices.
All
notices and other communications hereunder shall be in writing and shall be
deemed duly delivered (i) three business days after being sent by hand delivery
in writing, by facsimile or electronic transmission, by registered or certified
mail, return receipt requested, postage prepaid, or (ii) one business day after
being sent for next business day delivery, fees prepaid, via a reputable
nationwide overnight courier service, in each case to the intended recipient
as
set forth below:
(i)
if
to a
Stockholder to it:
c/o
Icahn
Associates Corp.
000
Xxxxx
Xxxxxx, Xxxxx 0000
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
General Counsel
Facsimile:
000-000-0000
Email:
xxxxxxxx@xxxxx.xxx
(ii)
if
to
Parent to:
c/o
American Real Estate Holdings Limited Partnership
White
Plains Plaza
000
Xxxxxxxx Xxxxxx - Xxxxx 0000
Xxxxx
Xxxxxx, XX 00000
Attention:
Xxxxxxx Xxxxxx, Esq.
Facsimile:
(000) 000-0000
Email:
xxxxxxx@xxxx.xxx
with
a
copy (which shall not constitute notice) to:
4
DLA
Piper
US LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx X. Xxxxxxxxx, Esq.
Facsimile
No.: (000) 000-0000
Email:
xxxxxx.xxxxxxxxx@xxxxxxxx.xxx
(f)
No
Third Party Beneficiaries.
This
Agreement is not intended, and shall not be deemed, to confer any rights or
remedies upon any person other than the parties hereto and their respective
successors and permitted assigns.
(g)
Assignment.
Except
as provided in Section 2 hereof, neither this Agreement nor any of the rights,
interests or obligations under this Agreement may be assigned or delegated,
in
whole or in part, by operation of law or otherwise by any of the parties hereto
without the prior written consent of the other parties and any such assignment
without such prior written consent shall be null and void. Subject to the
preceding sentence, this Agreement shall be binding upon, inure to the benefit
of, and be enforceable by, the parties hereto and their respective successors
and permitted assigns.
(h)
Interpretation.
When
reference is made in this Agreement to a Section, such reference shall be to
a
Section of this Agreement, unless otherwise indicated. The headings contained
in
this Agreement are for convenience of reference only and shall not affect in
any
way the meaning or interpretation of this Agreement. The language used in this
Agreement shall be deemed to be the language chosen by the parties hereto to
express their mutual intent, and no rule of strict construction shall be applied
against any party. Whenever the context may require, any pronouns used in this
Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular form of nouns and pronouns shall include the plural, and vice
versa. Any reference to any federal, state, local or foreign statute or law
shall be deemed also to refer to all rules and regulations promulgated
thereunder, unless the context requires otherwise. Whenever the words “include,”
“includes” or “including” are used in this Agreement, they shall be deemed to be
followed by the words “without limitation.” No summary of this Agreement
prepared by the parties shall affect in any way the meaning or interpretation
of
this Agreement.
(i)
Submission
to Jurisdiction.
Each of
the parties to this Agreement (i) consents to submit itself to the personal
jurisdiction of any state or federal court sitting in the State of New York
in
any action or proceeding arising out of or relating to this Agreement or any
of
the transactions contemplated by this Agreement, (ii) agrees that all claims
in
respect of such action or proceeding may be heard and determined in any such
court, (iii) agrees that it will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court and (iv)
agrees not to bring any action or proceeding arising out of or relating to
this
Agreement or any of the transactions contemplated by this Agreement in any
other
court. Each of the parties hereto waives any defense of inconvenient forum
to
the maintenance of any action or proceeding so brought and waives any bond,
surety or other security that might be required of any other party with respect
thereto. Any party hereto may make service on another party by sending or
delivering a copy of the process to the party to be served at the address and
in
the manner provided for the giving of notices in Section 9(e). Nothing in this
Section, however, shall affect the right of any party to serve legal process
in
any other manner permitted by law.
5
(j)
WAIVER
OF JURY TRIAL.
EACH OF
PARENT AND EACH STOCKHOLDER HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT,
TORT
OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THE ACTIONS OF PARENT, THE COMPANY OR EACH STOCKHOLDER
IN
THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT OF THIS
AGREEMENT.
[remainder
of page left blank intentionally]
6
IN
WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
signed individually or by its respective duly authorized officer as of the
date
first written above.
|
HIGH
RIVER LIMITED PARTNERSHIP
|
|||
|
By:
|
/s/
Xxxxxxx X. Xxxxxxxx
|
||
|
Name:
|
Xxxxxxx
X. Xxxxxxxx
|
||
|
Title:
|
Authorized
Signatory
|
||
|
KOALA
HOLDING LIMITED PARTNERSHIP
|
|||
|
By:
|
/s/
Xxxxxxx X. Xxxxxxxx
|
||
|
Name:
|
Xxxxxxx
X. Xxxxxxxx
|
||
|
Title:
|
Authorized
Signatory
|
||
|
ICAHN
PARTNERS MASTER FUND LP
|
|||
|
By:
|
/s/
Xxxxx X. Xxxxxxx
|
||
|
Name:
|
Xxxxx
X. Xxxxxxx
|
||
|
Title:
|
Authorized
Signatory
|
||
|
ICAHN
PARTNERS LP
|
|||
|
By:
|
/s/
Xxxxx X. Xxxxxxx
|
||
|
Name:
|
Xxxxx
X. Xxxxxxx
|
||
|
Title:
|
Authorized
Signatory
|
||
|
AREP
CAR HOLDINGS CORP.
|
|||
|
By:
|
/s/
Xxxxxx Xxxxxxx
|
||
|
Name:
|
Xxxxxx
Xxxxxxx
|
||
|
Title:
|
Chief
Financial Officer
|
||
[Signature
page to Parent Voting Agreement]
|
SCHEDULE
I
|
||
|
|
|
|
|
Stockholder
Name
|
Number
of
Shares
of
Common
Stock
|
|
|
High
River Limited Partnership
|
659,860
|
|
|
Koala
Holding Limited Partnership
|
1,739,131
|
|
|
Icahn
Partners Master Fund LP
|
5,526,235
|
|
|
|
|
|
|
Icahn
Partners LP
|
4,069,718
|
|
|
|
|
|
|
Total
|
11,994,944
|
|
|
|
|
|
