VOTING AGREEMENT
VOTING AGREEMENT, dated as of January 10, 2001 (this "Agreement"),
between Miltex Instrument Company, Inc., a New York corporation ("Buyer"), and
Xxxxxx X. Xxxxxxxxx (the "Stockholder").
RECITALS
Buyer and Moyco Technologies, Inc., a Pennsylvania corporation (the
"Company") propose to enter into an Asset Purchase Agreement dated as of the
date hereof (as the same may be amended or supplemented, the "Asset Agreement";
capitalized terms used but not defined herein shall have the meanings set forth
in the Asset Agreement) providing for the sale of certain Assets of the Company
and the Subsidiaries to Buyer (the "Acquisition"), upon the terms and subject to
the conditions set forth in the Asset Agreement.
As of the date hereof, the Stockholder is the record and beneficial
owner of 2,954,741 shares of Common Stock of the Company (the "Existing Shares"
and, together with any shares of Common Stock acquired by the Stockholder after
the date hereof, whether upon the exercise of warrants or options, conversion of
any such Existing Shares or convertible securities or otherwise, the "Shares").
As an inducement and a condition to entering into the Asset Agreement,
Buyer has required that the Stockholder agree, and the Stockholder has agreed,
to enter into this Agreement.
The Stockholder and Buyer desire to set forth their agreement with
respect to the voting of the Shares in connection with the Acquisition upon the
terms and subject to the conditions set forth herein.
AGREEMENT
To implement the foregoing and in consideration of the mutual
agreements contained herein, the parties agree as follows:
1. Agreement to Vote. The Stockholder hereby agrees that, from and
after the date hereof and until this Agreement shall have been terminated in
accordance with Section 5, at any meeting of the holders of Common Stock,
however called, or in connection with any written consent of the holders of
Common Stock, the Stockholder shall vote (or cause to be voted) the
Stockholder's Shares (i) in favor of adoption and approval of the Asset
Agreement, the plan of asset transfer and the Acquisition and the approval of
the terms thereof and each of the other actions contemplated by the Asset
Agreement and this Agreement and (ii) except as otherwise agreed to in writing
in advance by the Buyer, against the following actions (other than the
Acquisition, the plan of asset transfer and the transactions contemplated by the
Asset Agreement): (A) any extraordinary corporate transaction, such as a merger,
consolidation or
other business combination involving the Company or the Subsidiaries; (B) a
sale, lease or transfer of a material amount of assets of the Company or the
Subsidiaries, or a reorganization, recapitalization, dissolution or liquidation
of the Company or the Subsidiaries; (C) (1) any change in a majority of the
persons who constitute the Board of Directors of the Company; (2) any material
amendment of the Company's Certificate of Incorporation or By-laws; or (3) any
other action involving the Company or the Subsidiaries which has the effect of
impeding, interfering with, delaying, postponing, or impairing (i) the ability
of the Company to consummate the Acquisition or (ii) the transactions
contemplated by this Agreement and the Asset Agreement; notwithstanding the
foregoing, the Stockholder may vote his Shares in favor of (i) increasing the
size of the Board of Directors by two and (ii) electing two individuals to the
Board of Directors who shall be selected by the Board of Directors, in its sole
discretion, in order to assist with the operations of the precision abrasives
business segment of the Company. The Stockholder shall not enter into any
agreement or understanding with any person or entity prior to the termination of
this Agreement to vote in any manner inconsistent herewith.
2. Representations and Warranties of the Stockholder. The Stockholder
hereby represents and warrants to Buyer as of the date hereof as follows:
(a) Authorization; Validity of Agreement; Necessary Action.
The Stockholder has full power and authority to execute and deliver
this Agreement, and to perform his obligations hereunder. This
Agreement has been duly executed and delivered by the Stockholder, and,
assuming this Agreement constitutes a valid and binding obligation of
Buyer, constitutes a valid and binding obligation of the Stockholder,
enforceable against him in accordance with its terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, and general equitable principles
(whether considered in a proceeding in equity or at law).
(b) Consents and Approvals; No Violations. The execution,
delivery and performance of this Agreement by the Stockholder will not
(i) require any filing with, or permit, authorization, consent or
approval of, any Governmental Authority (except where the failure to
obtain such permits, authorizations, consents or approvals or to make
such filings would not materially impair the ability of the Stockholder
to consummate the transactions contemplated hereby), (ii) result in a
violation or breach of, or constitute (with or without due notice or
lapse of time or both) a default under any agreement or other
obligation to which the Stockholder is a party or by which he or any of
his properties or assets may be bound or (iii) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to him or
any of his properties or assets, except in the case of clauses (ii) and
(iii) for violations, breaches or defaults, or rights of termination,
amendment, cancellation or acceleration, which would not materially
impair the ability of the Stockholder to consummate the transactions
contemplated hereby.
(c) Shares. The Stockholder's Existing Shares are, and his
Shares on the Closing Date will be, owned beneficially and of record by
the Stockholder. The
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Stockholder's Existing Shares constitute all of the shares of
Common Stock owned of record or beneficially by the Stockholder except
for 222,130 shares legally and beneficially owned by Xxxxx Xxxxxxxxx,
his wife. All of the Stockholder's Existing Shares are issued and
outstanding and the Stockholder does not own, of record or
beneficially, any warrants, options or other rights to acquire any
shares of Common Stock. The Stockholder has sole voting power, sole
power of disposition, sole power to issue instructions with respect to
the matters set forth in Section 1, sole power of conversion, sole
power to demand appraisal rights and sole power to agree to all of the
matters set forth in this Agreement, in each case with respect to all
of the Stockholder's Existing Shares and will have sole voting power,
sole power of disposition, sole power to issue instructions with
respect to the matters set forth in Section 1, sole power of
conversion, sole power to demand appraisal rights and sole power to
agree to all of the matters set forth in this Agreement, with respect
to all of the Stockholder's Shares on the Closing Date, with no
limitations, qualifications or restrictions on such rights, subject to
applicable federal securities laws and the terms of this Agreement. The
Stockholder has good and valid title to the Existing Shares and at all
times during the term hereof and on the Closing Date will have good and
valid title to the Shares, free and clear of all liens, claims,
security interests or other charges or encumbrances.
3. Further Agreements of the Stockholder. (a) The Stockholder hereby
agrees, while this Agreement is in effect, and except as contemplated hereby,
not to (i) sell, transfer, 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, pledge,
encumbrance, assignment or other disposition of, any of the Existing Shares, or
any Shares acquired after the date hereof, or any interest in any of the
foregoing; (ii) grant any proxies or powers of attorney, deposit any Shares into
a voting trust or enter into a voting agreement with respect to any Shares, or
any interest in any of the foregoing, except to Buyer; or (iii) take any action
that would make any representation or warranty of the Stockholder contained
herein untrue or incorrect or have the effect of preventing or disabling the
Stockholder from performing the Stockholder's obligations under this Agreement.
(b) The Stockholder hereby irrevocably waives any rights of appraisal
or rights to dissent from the Acquisition that the Stockholder may have.
(c) The Stockholder agrees with, and covenants to, Buyer that the
Stockholder shall not request that the Company register the transfer (book-entry
or otherwise) of any certificate or uncertificated interest representing any of
the Stockholder's Shares, unless such transfer is made in compliance with this
Agreement. In the event of a stock dividend or distribution, or any change in
the Common Stock by reason of any stock dividend or distribution, or any change
in the Common Stock by reason of any stock dividend, split-up, recapitalization,
combination, exchange of shares or the like, the term "Shares" shall be deemed
to refer to and include the Shares as well as all such stock dividends and
distributions and any shares into which or for which any or all of the Shares
may be changed or exchanged.
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4. Further Assurances. From time to time prior to the Closing, at any
other party's request and without further consideration, each party hereto shall
execute and deliver such additional documents and take all such further lawful
action as may be necessary or desirable to consummate and make effective, in the
most expeditious manner practicable, the transactions contemplated by this
Agreement.
5. Termination. This Agreement shall terminate, and no party shall have
any rights or obligations hereunder and this Agreement shall become null and
void and have no further effect upon the earlier of (a) the Closing under the
Asset Agreement and (b) termination of the Asset Agreement pursuant to its
terms. Nothing in this Section 5 shall relieve Stockholder of liability for
breach of this Agreement.
6. Costs and Expenses. All costs and expenses incurred in connection
with this Agreement and the consummation of the transactions contemplated hereby
shall be paid by the party incurring such expenses.
7. Amendment and Modification. This Agreement may be amended, modified
and supplemented in any and all respects only by written agreement of the
parties hereto.
8. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, telecopied (which is
confirmed) or sent by an overnight courier service to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
(i) If to Buyer, to:
Miltex Instrument Company, Inc.
000 Xxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxx Xxxxxxxxx
with copies to:
c/o American Securities Capital Partners, L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxx Xxxxxx
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and to:
Xxxx, Scholer, Fierman, Xxxx & Handler, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx, Esq.
(ii) if to the Stockholder, to:
Xxxxxx X. Xxxxxxxxx
000 Xxxxxxxx Xxxxx
Xxxxxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Telecopy: (000) 000-0000
with a copy to:
Posternak, Blankenstein & Xxxx, LLP
000 Xxxxxxx Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxx X. Xxxxxxx, Esq.
9. Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when two or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
10. Entire Agreement; No Third Party Beneficiaries. This Agreement
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof, and is not intended to confer upon any person other than
the parties hereto any rights or remedies hereunder.
11. 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 so long as the economic or legal substance of
the transactions contemplated hereby is 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 a mutually acceptable manner in
order that the transactions contemplated hereby may be consummated as originally
contemplated to the fullest extent possible.
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12. Specific Performance; Remedies Cumulative. (a) The parties hereto
agree that irreparable damage would occur in the event any provision of this
Agreement were not performed in accordance with the terms hereof and that the
parties shall be entitled to the remedy of specific performance of the terms
hereof, in addition to any other remedy at law or equity.
(b) All rights, powers and remedies provided under this Agreement or
otherwise available in respect hereof at law or in equity shall be cumulative
and not alternative, and the exercise of any thereof by any party shall not
preclude the simultaneous or later exercise of any other such right, power or
remedy by such party.
13. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the Commonwealth of Pennsylvania without giving
effect to the principles of conflicts of law thereof.
14. Assignment. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any of the parties hereto (whether
by operation of law or otherwise) without the prior written consent of the other
parties, except that Buyer may assign, in its sole discretion, any or all of its
rights, interests and obligations hereunder to an affiliate in connection with
an assignment of the Asset Agreement pursuant to Section 10.6 thereof. Subject
to the preceding sentence, this Agreement will be binding upon, inure to the
benefit of and be enforceable by the parties and their respective successors and
assigns. Any attempted assignment in violation of this Section 14 shall be null
and void.
15. Forum; Service of Process. Any legal suit, action or proceeding
brought by any party or any of its affiliates arising out of or based upon this
Agreement shall be instituted in any federal or state court in the State of
Delaware, and each party waives any objection which it may now or hereafter have
to the laying of venue of any such proceeding, and irrevocably submits to the
jurisdiction of such courts in any such suit, action or proceeding.
16. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY LAW, THE
PARTIES HERETO HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM
OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS
BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION. THE SCOPE OF
THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY
BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT,
INCLUDING WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY
CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THE PARTIES HERETO
ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS
RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THE WAIVER IN ENTERING INTO THIS
AGREEMENT AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED
FUTURE DEALINGS. THE PARTIES HERETO FURTHER WARRANT AND REPRESENT THAT EACH HAS
REVIEWED THIS WAIVER
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WITH ITS OR HIS, AS THE CASE MAY BE, LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND
VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR TO ANY OTHER
DOCUMENTS OR AGREEMENTS RELATING TO THE TRANSACTIONS CONTEMPLATED HEREBY. IN THE
EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL
BY THE COURT.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
MILTEX INSTRUMENT COMPANY, INC.
By:
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Name:
Title:
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XXXXXX X. XXXXXXXXX
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