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EXHIBIT 2
VOTING AGREEMENT
by and among
XXXXXXXX X. XXXXXXXXX
and
THE XXXXXXXX X. XXXXXXXXX
TRUST, as amended and restated
and
CDR-COOKIE ACQUISITION L.L.C.
and
CDR-COOKIE ACQUISITION VI-A L.L.C.
Dated as of March 17, 2000
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Table of Contents
Page
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ARTICLE I
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER
1.1 Authorization, etc.......................................................................................2
1.2 No Conflicts; Consents...................................................................................2
1.3 The RV Shares............................................................................................3
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
2.1 Organization, No Prior Business..........................................................................3
2.2 Authorization; Validity of Agreement.....................................................................3
2.3 Consents and Approvals; No Violations....................................................................4
ARTICLE III
COVENANTS AS TO THE PURCHASED SHARES AND THE RV SHARES
3.1 Voting Covenants of the Purchasers.......................................................................4
3.2 Voting Covenants of the Shareholder......................................................................5
3.3 Limitation on Purchases of Equity Securities.............................................................7
ARTICLE IV
COVENANTS OF THE SHAREHOLDER AND THE PURCHASERS
4.1 Continuing Disclosure....................................................................................8
4.2 Further Actions..........................................................................................8
4.3 Further Assurances.......................................................................................8
4.4 Ancillary Agreements.....................................................................................9
ARTICLE V
DEFINITIONS
5.1 Definitions..............................................................................................9
ARTICLE VI
MISCELLANEOUS
6.1 Fees and Expenses.......................................................................................11
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Table of Contents
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6.2 Severability............................................................................................12
6.3 Specific Enforcement....................................................................................12
6.4 Entire Agreement........................................................................................12
6.5 Counterparts............................................................................................12
6.6 Notices.................................................................................................12
6.7 Amendments; Waivers, etc................................................................................13
6.8 Cooperation.............................................................................................14
6.9 Governing Law, etc......................................................................................14
6.10 No Inconsistent Agreements..............................................................................15
6.11 No Third Party Beneficiaries............................................................................15
6.12 Termination.............................................................................................15
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VOTING AGREEMENT
THIS VOTING AGREEMENT, dated as of March 17, 2000 (this
"Agreement"), is entered into by and among CDR-Cookie Acquisition L.L.C., a
Delaware limited liability company ("CDR-Cookie VI") that is wholly-owned by
Xxxxxxx, Dubilier & Rice Fund VI Limited Partnership, a Cayman Islands exempted
limited partnership ("Fund VI") and CDR-COOKIE Acquisition VI-A L.L.C., a
Delaware limited liability company ("CDR-Cookie VI-A") that is wholly-owned by
Xxxxxxx, Dubilier & Rice Fund VI-A Limited Partnership, a Cayman Islands
exempted limited partnership ("Fund VI-A" and, together with Fund VI, the
"Purchasers"), and Xxxxxxxx X. Xxxxxxxxx ("Xx. Xxxxxxxxx"), and the Xxxxxxxx X.
Xxxxxxxxx Trust, dated October 19, 1990, as amended and restated on February 1,
1995 (the "RV Trust"), of which Xx. Xxxxxxxxx is the sole trustee (Xx. Xxxxxxxxx
and the RV Trust are referred to herein collectively as the "Shareholder").
W I T N E S S E T H:
WHEREAS, Complete Business Solutions, Inc. (the "Company") is
a corporation organized under the laws of the State of Michigan;
WHEREAS, the Shareholder owns 9,085,819 shares of common
stock, without par value ("Common Stock"), of the Company (such shares of Common
Stock, together with any other shares of voting capital stock of the Company
acquired by the Shareholder after the date hereof and during the term of this
Agreement, being collectively referred to herein as the "RV Shares");
WHEREAS, concurrently with the execution of this Agreement,
the Purchasers are entering into a stock purchase agreement, dated as of the
date hereof, with the Company (as such agreement may be amended from time to
time in accordance with the provisions thereof, the "Company Purchase
Agreement"), pursuant to which the Purchasers will agree, on the terms and
subject to the conditions set forth therein, to purchase from the Company (the
"Company Stock Purchase"), (i) shares of Company's Series A Voting Convertible
Preferred Stock, without par value, and (ii) warrants to purchase from the
Company shares of Common Stock;
WHEREAS, the Shareholder wishes to agree to the voting
provisions set forth herein with respect to the RV Shares;
WHEREAS, the Purchasers wish to agree to the voting provisions
set forth herein with respect to all shares of voting capital stock of the
Company acquired by the Purchasers pursuant to the Company Stock Purchase,
together with any other shares of voting capital stock of the Company acquired
by the Purchasers after the date hereof and during the term of this Agreement
(collectively, the "Purchased Shares");
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WHEREAS, the execution of this Agreement by the parties hereto
is a condition to the execution and delivery by the Purchasers of the Company
Purchase Agreement; and
WHEREAS, concurrently with the execution of this Agreement,
the Company is entering into a new employment agreement (the "New Employment
Agreement"), dated the date hereof, with Xx. Xxxxxxxxx, to take effect as of the
Initial Closing Date;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein set forth, the parties agree as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER
Except as disclosed in the Shareholder's disclosure schedule
(which shall set forth with reasonable specificity by reference to the Sections
of this Agreement the disclosure items therein) delivered on or prior to the
date hereof (the "Seller Disclosure Schedule"), the Shareholder represents and
warrants to the Purchasers as follows:
1.1 Authorization, etc. Each of Xx. Xxxxxxxxx and the RV
Trust has the requisite power, authority and legal capacity to execute, deliver
and perform this Agreement and each Ancillary Agreement to which he or it is a
party, and to consummate the transactions contemplated hereby and thereby. The
RV Trust has duly executed and delivered this Agreement, and Xx. Xxxxxxxxx has
duly executed and delivered this Agreement, his New Employment Agreement and the
other Ancillary Agreements to which he is a party. This Agreement and each
Ancillary Agreement to which he or it is a party constitute the legal, valid and
binding obligations of Xx. Xxxxxxxxx and the RV Trust, as the case may be,
enforceable against him or it in accordance with their terms.
1.2 No Conflicts; Consents. (a) No Conflicts. The execution,
delivery and performance by Xx. Xxxxxxxxx and the RV Trust of this Agreement and
the execution, delivery and performance by Xx. Xxxxxxxxx of the Ancillary
Agreements to which he is a party, and the consummation of the transactions
contemplated hereby and thereby, do not and will not conflict with, contravene,
result in a violation or breach of or default under (with or without the giving
of notice or the lapse of time or both), or give rise to a right or claim of
termination, amendment, modification, vesting, acceleration or cancellation of
any right or obligation or loss of any material benefit under, (i) any Law
applicable to the Shareholder or (ii) any contract, agreement or instrument to
which the Shareholder is a party.
(a) Consents. No Consent of or with any court, arbitral
tribunal, administrative agency or commission or other governmental or
regulatory authority or administrative agency or commission, whether domestic or
foreign (a "Governmental
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Authority"), or other Person is required to be obtained by Xx. Xxxxxxxxx or the
RV Trust in connection with the execution and delivery by each of them of this
Agreement or the consummation of the transactions contemplated hereby. No
Consent of or with any Governmental Authority or other Person is required to be
obtained by Xx. Xxxxxxxxx in connection with the execution and delivery by him
of the Ancillary Agreements to which he is a party or the consummation of the
transactions contemplated thereby.
1.3 The RV Shares. The Shareholder has the sole right to
vote the RV Shares, and none of the RV Shares is subject to any agreement,
arrangement or restriction with respect to the voting of such RV Shares, except
as contemplated by this Agreement. Except as contemplated by this Agreement, (i)
there are no agreements or arrangements of any kind, contingent or otherwise,
obligating the Shareholder to sell, transfer, assign, grant a participation
interest in, option, pledge, hypothecate or otherwise dispose or encumber (each,
a "Transfer"), or cause to be Transferred, any of the RV Shares, and (ii) no
Person has any contractual or other right or obligation to purchase or otherwise
acquire any of the RV Shares.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Except as disclosed in the Purchaser disclosure schedule
(which shall set forth with reasonable specificity by reference to the Sections
of this Agreement the disclosure items therein) delivered on or prior to the
date hereof (the "Purchaser Disclosure Schedule"), each Purchaser represents and
warrants to the Shareholder as follows:
2.1 Organization, No Prior Business. Each Purchaser is a
limited liability company duly organized, validly existing and in good standing
under the laws of Delaware, with all requisite power and authority to own, lease
and operate its properties and to conduct its business as now being conducted.
Neither Purchaser has engaged in any business or activity of any kind, or
entered into any agreement or arrangement with any person or any entity or
incurred, directly or indirectly, any material liabilities or obligations, other
than in connection with the transactions contemplated hereby and by the Company
Purchase Agreement.
2.2 Authorization; Validity of Agreement. Each Purchaser has
all requisite power and authority to execute and deliver this Agreement and the
Ancillary Agreements to which it will be a party, to perform its obligations
hereunder and thereunder and to consummate the transactions contemplated hereby
and thereby. The execution and delivery of this Agreement and the Ancillary
Agreements to which it is a party, and the consummation of the transactions
contemplated hereby and thereby, have been, duly authorized by all requisite
action of each Purchaser. Each Purchaser has duly executed and delivered this
Agreement and the Ancillary Agreements to which it will be a party. Each of this
Agreement and each of the Ancillary Agreements to which it is a
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party is a valid and legally binding obligation of each Purchaser, enforceable
against each Purchaser in accordance with its terms.
2.3 Consents and Approvals; No Violations.
(a) Neither the execution and delivery by Purchaser of this
Agreement nor the Ancillary Agreements to which it is a party nor the
consummation by Purchaser of the transactions contemplated hereby and thereby
will (i) conflict with, result in a violation or breach of, or constitute (with
or without due notice or lapse of time or both) a default (or give rise to any
right of termination, amendment, cancellation or acceleration) under, any of the
terms, conditions or provisions of any Contract to which either Purchaser is a
party or by which or any of such Purchaser's assets may be bound or (ii)
conflict with or violate in any material respect any Laws applicable to either
Purchaser or any of such Purchaser's properties or assets; except in the case of
clause (i) for such conflicts, violations, breaches or defaults which in the
aggregate would not have a Material Adverse Effect on such Purchaser or
materially impair or delay the consummation of the transactions contemplated by
this Agreement.
(b) Assuming that the representation and warranty of the
Shareholder set forth in Section 1.2(b) is true and correct, no filing or
registration with, declaration or notification to, or order, authorization,
consent or approval of, any Governmental Authority is required in connection
with the execution and delivery of this Agreement by the Purchasers or the
consummation by the Purchasers of the transactions contemplated hereby, except
(i) applicable requirements under Competition Laws, (ii) applicable requirements
under the Exchange Act, and (iii) such other consents, approvals,
authorizations, and notifications of or to any Person, other than a material
consent, approval, authorization and notification of or to any Governmental
Authority, the failure of which to be obtained or made would not have a material
adverse effect on the business, assets, liabilities, results of operations or
financial or other condition of the Purchasers, or materially impair or delay
the consummation of the transactions contemplated by this Agreement.
ARTICLE III
COVENANTS AS TO THE PURCHASED SHARES AND THE RV SHARES
3.1 Voting Covenants of the Purchasers
(a) Effective as of the date of the Initial Closing, until
the earlier to occur of (i) the date of termination of this Agreement and (ii)
with respect to clause (x) below, a Director Termination Date, and with respect
to clause (y) below, the termination of all of the Purchasers' rights under the
Company Purchase Agreement, each Purchaser hereby agrees that, at any meeting of
the shareholders of the Company, however called, or in connection with any
written consent of the shareholders of the Company, such Purchaser shall vote
(or cause to be voted) the Purchased Shares owned or held by such
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Purchaser as of the record date for such vote or action, (x) in favor of the
election of the Shareholder to the Board and (y) except as specifically
requested in writing by the Shareholder in advance, against any direct or
indirect modification or amendment of the New Employment Agreement, Section 3.4
of the Agreement, Section 4.6 of the Company Purchase Agreement, the Expense and
Indemnification Agreement or the Subscription Agreement, as in effect on the
date hereof.
(b) The Purchasers agree not to, directly or indirectly,
Transfer or enter into any agreement, option, commitment or other arrangement
(including any profit sharing arrangement) with respect to the Transfer of, any
Purchased Shares to any Person, other than (x) any Affiliate of the Purchasers
who delivers to the Shareholder an undertaking to the effect of Section 3.1(a)
hereof and this Section 3.1(b), or (y) any Person that is not an Affiliate of
the Purchasers. Upon the Transfer of any Purchased Shares in accordance with
clause (y) of the foregoing sentence, any voting covenant with respect to such
shares shall terminate and be of no further force and effect. The Purchasers
agree, other than in accordance with this Agreement, not to grant any proxy, or
proxies, deposit any Purchased Shares into any voting trust or enter into any
voting arrangement, whether by proxy, voting agreement or otherwise, with
respect to the Purchased Shares.
(c) The Purchasers acknowledge and agree that (i) the
covenants, obligations and agreements of the Purchasers contained in this
Agreement relate to special, unique and extraordinary matters, and (ii) a
violation of any of the terms of such covenants, obligations or agreements will
cause the Shareholder irreparable injury for which adequate remedies are not
available at law. Therefore, the Purchasers agree that the Shareholder shall be
entitled to an injunction, restraining order or such other equitable relief
(without the requirement to post bond) as a court of competent jurisdiction may
deem necessary or appropriate to restrain the Purchasers from committing any
violation of such covenants, obligations or agreements. These injunctive
remedies are cumulative and in addition to any other rights and remedies the
Shareholder may have.
(d) The Purchasers shall not be deemed to make any agreement
or understanding in this Agreement on behalf of any Affiliate thereof in such
Affiliate's capacity as a director or officer of the Company. Nothing herein
shall limit or affect any actions taken by any such Affiliate in such
Affiliate's capacity as a director or officer of the Company.
3.2 Voting Covenants of the Shareholder.
(a) At the Annual Meeting or at any adjournment thereof or
in any other circumstances upon which a vote, consent or other approval
(including by written consent) with respect to the Second Tranche Transactions
or any other transactions contemplated by the Company Purchase Agreement is
sought, the Shareholder shall vote (or cause to be voted) the RV Shares (i) in
favor of the Subsequent Closing Transactions
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or such other transactions, and (ii) until the Subsequent Closing Date, against
any Company Takeover Proposal and any Alternative Proposal.
(b) Effective as of the date hereof, until the date of
termination of this Agreement, the Shareholder hereby agrees that, at any
meeting of the shareholders of the Company, however called, or in connection
with any written consent of the shareholders of the Company, the Shareholder
shall vote (or cause to be voted) the RV Shares owned or held by such
Shareholder as of the record date for such vote or action, (x) in favor of the
election to the Board of any director which the Purchasers shall have the right
to designate pursuant to Section 4.1 of the Company Purchase Agreement, (y)
except as specifically requested in writing by the Purchasers in advance,
against any direct or indirect modification or amendment of the Company Purchase
Agreement other than Section 4.6 thereof, the CDR Registration Rights Agreement,
the Indemnification Agreement, the Certificate of Designation, the Warrants, or
the Consulting Agreement.
(c) The Shareholder agrees not to, directly or indirectly,
(i)"Transfer" or enter into any agreement, option, commitment or other
arrangement (including any profit sharing arrangement) with respect to the
Transfer of, any RV Shares to any Person, other than (x) any Person (including
any "person" within the meaning of Section 13(d)(3) of the Exchange Act) who
after giving effect to such transfer would not directly or indirectly be the
beneficial owner (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange
Act) of more than 5 per centum of the then-outstanding Common Stock (y) either
Purchaser or any Affiliate thereof, or (z) any other Person (including any
"person" within the meaning of Section 13(d)(3) of the Exchange Act) who
delivers to the Purchasers an undertaking to the effect of Sections 3.2(a) and
3.2(b) hereof and this Section 3.2(c). Upon the transfer of any RV Shares in
accordance with clause (x) or clause (y) of the foregoing sentence, any voting
covenant with respect to such shares shall terminate and be of no further force
and effect. The Shareholder agrees, other than pursuant to this Agreement, not
to grant any proxy, or proxies, deposit any RV Shares into any voting trust or
enter into any voting arrangement, whether by proxy, voting agreement or
otherwise, with respect to the RV Shares.
(d) The Shareholder shall use all reasonable efforts to
take, or cause to be taken, all actions, and to do, or cause to be done, and to
assist and cooperate with the other parties in doing, all things necessary,
proper or advisable to consummate and make effective, in the most expeditious
manner practicable, the transactions contemplated by the Company Purchase
Agreement.
(e) The Shareholder shall not be deemed to make any
agreement or understanding in this Agreement in his capacity as a director or
officer of the Company. The Shareholder is entering into this Agreement solely
in its capacity as the record holder or beneficial owner of the RV Shares and
nothing herein shall limit or affect any actions taken by the Shareholder in his
capacity as a director or officer of the Company.
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(f) The Shareholder acknowledges and agrees that (i) the
covenants, obligations and agreements of the Shareholder contained in this
Agreement relate to special, unique and extraordinary matters, (ii) the
Purchasers are and will be relying on such covenants in connection with entering
into the Company Purchase Agreement and the performance by the Purchasers of
their obligations thereunder and (iii) a violation of any of the terms of such
covenants, obligations or agreements will cause the Purchasers irreparable
injury for which adequate remedies are not available at law. Therefore, the
Shareholder agrees that the Purchasers shall be entitled to an injunction,
restraining order or such other equitable relief (without the requirement to
post bond) as a court of competent jurisdiction may deem necessary or
appropriate to restrain the Shareholder from committing any violation of such
covenants, obligations or agreements. These injunctive remedies are cumulative
and in addition to any other rights and remedies the Purchasers may have.
(g) Nothing contained in this Agreement shall be deemed to
limit or restrict the right of the Shareholder to effect sales of the RV Shares
pursuant to Rule 144 promulgated under the Securities Act.
(h) Restrictive Legend. The Shareholder agrees within 10
days of the date hereof to surrender to an agent of the Purchasers, to be
designated by written notice to the Shareholder, the certificate or certificates
representing the RV Shares. The Shareholder acknowledges that, promptly
thereafter, such agent of the Purchasers shall promptly return each such
certificate to the Shareholder after affixing thereto an appropriate legend,
which will include, without limitation, the following language:
"THE SHARES REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO A VOTING
AGREEMENT, DATED AS OF MARCH 17, 2000."
3.3 Limitation on Purchases of Equity Securities.
(a) Except with the prior written consent of the Purchasers,
during the period commencing on the date hereof and ending on the earlier of (x)
the fifth anniversary of the Initial Closing and (y) the occurrence of a
Director Termination Date, the Shareholder shall not, and shall not permit any
Affiliate (other than the Company or any Subsidiary thereof) controlled by him,
directly or indirectly, to:
(i) acquire, or offer or agree to acquire, beneficial
ownership (as defined in Rule 13d-3 and 13d-5 under the Exchange Act)
of any Voting Securities;
(ii) contrary to the recommendation of the Board,
participate in any "solicitation" of "proxies" (as such terms are used
in the proxy rules of the SEC), vote any shares of capital stock of the
Company, initiate, propose or otherwise solicit stockholders of the
Company for the approval of one or more stockholder
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proposals or induce or attempt to induce any other individual, firm,
corporation, partnership or other entity to initiate any stockholder
proposal; or
(iii) directly or indirectly join in or in any way
participate in a pooling agreement, syndicate, voting trust or other arrangement
with respect to the Company's voting securities, or otherwise act in concert
with, any other Person (other than the Purchasers or Affiliates of the
Purchasers), for the purpose of acquiring, holding, voting or disposing of the
Company's securities.
(b) Notwithstanding anything to the contrary in this
Agreement, however, nothing contained in this Section 3.4 shall be deemed to (i)
restrict the manner in which the Shareholder participates in deliberations or
discussions of the Board or as an officer of the Company in compliance with his
fiduciary duties to the Company or (ii) restrict the Shareholder from acquiring
beneficial ownership over Voting Securities, whether by purchase of such Voting
Securities, by proxy or otherwise, up to an aggregate amount of 49.9% of the
Voting Securities from time to time outstanding. Nothing herein shall be
construed as permitting the Stockholder or the Affiliates thereof from acquiring
beneficial ownership of Voting Securities in excess of 49.9% of the Voting
Securities from time to time outstanding during the time period contemplated in
Section 3.4(a) without the consent of the Purchasers.
ARTICLE IV
COVENANTS OF THE SHAREHOLDER AND THE PURCHASERS
4.1 Continuing Disclosure. Each party hereto covenants that
he or it shall promptly advise the other parties hereto with respect to any
matter hereafter arising or discovered that, if existing or known at the date of
this Agreement, would have been required to be set forth or described in a
schedule to this Agreement, or that constitutes a breach or prospective breach
of this Agreement. The delivery of any such notice shall not affect the other
parties' remedies hereunder.
4.2 Further Actions. Each party agrees to use its best
efforts to take all actions and to do all things necessary or appropriate to
consummate the transactions contemplated hereby and by the Ancillary Agreements
as promptly as possible, including, without limitation, coordinating and
cooperating with the other parties in exchanging such information and supplying
such reasonable assistance as may be reasonably requested by the other parties.
4.3 Further Assurances. Each party hereto shall execute and
deliver such additional instruments, documents, conveyances or assurances and
take such other actions as shall be necessary, or otherwise reasonably requested
by the other parties, to confirm and assure the rights and obligations provided
for in this Agreement and the Ancillary Agreements, and render effective the
consummation of the transactions
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contemplated hereby and thereby. At the Initial Closing, each party hereto shall
execute and deliver an instrument reaffirming and ratifying this Agreement.
4.4 Ancillary Agreements. After the date hereof, the
Shareholder shall not enter into any Ancillary Agreement with the Company
without the prior written consent of the Purchasers.
ARTICLE V
DEFINITIONS
5.1 Definitions. For purposes of this Agreement, the
following terms shall have the following meanings:
Affiliate: is defined in the Company Purchase Agreement.
Agreement: is defined in the introductory paragraph to this
Agreement.
Alternative Proposal: as defined in the Company Purchase
Agreement.
Ancillary Agreement: any agreement between the Company and the
Shareholder with respect to voting, standstill, registration rights and other
related matters.
Annual Meeting: is defined in the Company Purchase Agreement.
Board: as defined in the Company Purchase Agreement.
CD&R: means Xxxxxxx, Dubilier & Rice, Inc., a Delaware
corporation.
CDR-Cookie VI: is defined in the introductory paragraph of
this Agreement.
CDR-Cookie VI-A: is defined in the introductory paragraph of
this Agreement.
Closing Date: means any of the Initial Closing Date or the
Subsequent Closing Date.
Common Stock: is defined in the recitals to this Agreement.
Company: is defined in the introductory paragraph to this
Agreement.
Company Purchase Agreement: is defined in the recitals to this
Agreement.
Company Stock Purchase: is defined in the recitals to this
Agreement.
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Company Takeover Proposal: as defined in the Company Purchase
Agreement.
Competition Laws: is defined in the Company Purchase
Agreement.
Consent: is defined in the Company Purchase Agreement.
Contract: is defined in the Company Purchase Agreement.
Director Termination Date: is defined in the Company Purchase
Agreement.
Exchange Act: means the Securities Exchange Act of 1934, as
amended.
Expense and Indemnification Agreement: means the Expense and
Indemnification Agreement, dated as of the date hereof, between the Shareholder
and the Company.
Fund VI: as defined in the introductory paragraph of this
Agreement.
Fund VI-A: is defined in the introductory paragraph of this
Agreement.
Governmental Approval: is defined in the Company Purchase
Agreement.
Governmental Authority: is defined in the Company Purchase
Agreement.
Initial Closing: is defined in the Company Purchase Agreement.
Initial Closing Date: is defined in the Company Purchase
Agreement.
Law: is defined in the Company Purchase Agreement.
Material Adverse Effect: on or with respect to an entity (or
group of entities taken as a whole) means any state of facts, event, change or
effect that has had, or would reasonably be expected to have, a material adverse
effect on the business, properties, results of operations or condition (whether
financial or other) of such entity (or, if with respect thereto, of such group
of entities taken as a whole), or on the ability of such entity (or group of
entities) to consummate the transactions contemplated hereby or to perform its
obligations hereunder or under the Company Purchase Agreement.
New Employment Agreement: is defined in the recitals to this
Agreement.
Person: is defined in the Company Purchase Agreement.
Purchased Shares: is defined in the recitals to this
Agreement.
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Purchaser: is defined in the introductory paragraph to this
Agreement.
Purchaser Disclosure Schedule: is defined in the introductory
paragraph to Article II.
RV Shares: is defined in the recitals to this Agreement.
Second Tranche Transactions: is defined in the Company
Purchase Agreement.
Securities Act: means the Securities Act of 1933, as amended.
Seller Disclosure Schedule: is defined in the introductory
paragraph to Article I.
Shareholder: is defined in the introductory paragraph to this
Agreement.
Shareholder Approval: is defined in the Company Purchase
Agreement.
Subscription Agreement: means the Subscription Rights
Agreement, dated as of the date hereof, between the Shareholder and the Company.
Subsequent Closing: is defined in the Company Purchase
Agreement.
Subsequent Closing Date: is defined in the Company Purchase
Agreement.
Subsidiary: is defined in the Company Purchase Agreement.
Transfer: is defined in Section 1.3.
Voting Securities: is defined in the Company Purchase
Agreement.
For the purposes of this Agreement, capitalized terms used but
not defined herein shall have the meanings assigned thereto in the Company
Purchase Agreement.
ARTICLE VI
MISCELLANEOUS
6.1 Fees and Expenses. Except as contemplated by the Company
Purchase Agreement or the other agreements entered into in connection herewith,
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.
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6.2 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, 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. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such which may be hereafter declared invalid, void or
unenforceable.
6.3 Specific Enforcement. The Purchasers, on the one hand,
and the Shareholder, on the other, acknowledge and agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of the provisions of this Agreement and to
enforce specifically the terms and provisions hereof and thereof in any court of
the United States or any state thereof having jurisdiction, this being in
addition to any other remedy to which they may be entitled at law or equity.
6.4 Entire Agreement. This Agreement (including the
documents set forth in the Exhibits and Schedules hereto), together with the
Ancillary Agreements, contains the entire understanding of the parties with
respect to the transactions contemplated hereby.
6.5 Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more of the counterparts have been signed
by each party and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
6.6 Notices. All notices, consents, requests, instructions,
approvals and other communications provided for herein and all legal process in
regard hereto shall be validly given, made or served, if in writing and
delivered personally, by telecopy (except for legal process) or sent by
registered mail, postage prepaid, if to:
the Shareholder:
Xx. Xxx Xxxxxxxxx
00000 Xxxx 00 Xxxx
Xxxxxxxxxx Xxxxx, XX 00000-0000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
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with a copy to:
Coudert Brothers
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
the Purchasers:
CDR-Cookie Acquisition L.L.C.
c/o CD&R Associates VI Limited Partnership
CDR-Cookie Acquisition VI-A L.L.C.
c/o CD&R Associates VI-A Limited Partnership
0000 Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
with a copy to:
Xxxxxxx, Dubilier & Rice, Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention of: Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention of: Xxxxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
or to such other address or telex number as any party may, from time to time,
designate in a written notice given in a like manner.
6.7 Amendments; Waivers, etc. No amendment, modification or
discharge of this Agreement, and no waiver hereunder, shall be valid or binding
unless set forth in writing and duly executed by the party against whom
enforcement of the amendment, modification, discharge or waiver is sought. Any
such waiver shall constitute a waiver only with respect to the specific matter
described in such writing and shall in no way impair the rights of the party
granting such waiver in any other respect or at any
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other time. Neither the waiver by any of the parties hereto of a breach of or a
default under any of the provisions of this Agreement, nor the failure by any of
the parties, on one or more occasions, to enforce any of the provisions of this
Agreement or to exercise any right or privilege hereunder, shall be construed as
a waiver of any other breach or default of a similar nature, or as a waiver of
any of such provisions, rights or privileges hereunder. The rights and remedies
of any party based upon, arising out of or otherwise in respect of any
inaccuracy or breach of any representation, warranty, covenant or agreement or
failure to fulfill any condition shall in no way be limited by the fact that the
act, omission, occurrence or other state of facts upon which any claim of any
such inaccuracy or breach is based may also be the subject matter of any other
representation, warranty, covenant or agreement as to which there is no
inaccuracy or breach. The representations and warranties of the Shareholder
shall not be affected or deemed waived by reason of any investigation made by or
on behalf of the Purchasers (including but not limited to by any advisors,
consultants or representatives thereof) or by reason of the fact that the
Purchasers or any advisors, consultants or representatives thereof knew or
should have known that any such representation or warranty is or might be
inaccurate.
6.8 Cooperation. The Purchasers and the Shareholder agree to
take, or cause to be taken, all such further or other actions as shall
reasonably be necessary to make effective and consummate the transactions
contemplated by this Agreement.
6.9 Governing Law, etc. THIS AGREEMENT SHALL BE GOVERNED IN
ALL RESPECTS, INCLUDING AS TO VALIDITY, INTERPRETATION AND EFFECT, BY THE
INTERNAL LAWS OF THE STATE OF MICHIGAN WITHOUT GIVING EFFECT TO THE CONFLICT OF
LAWS RULES THEREOF TO THE EXTENT THAT THE APPLICATION OF THE LAW OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO
THE JURISDICTION OF THE COURTS OF THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN IN RESPECT OF THE INTERPRETATION AND ENFORCEMENT OF
THE PROVISIONS OF THIS AGREEMENT AND IN RESPECT OF THE TRANSACTIONS CONTEMPLATED
HEREBY. EACH PARTY HEREBY WAIVES AND AGREES NOT TO ASSERT, AS A DEFENSE IN ANY
ACTION, SUIT OR PROCEEDING FOR THE INTERPRETATION AND ENFORCEMENT HEREOF, OR ANY
SUCH DOCUMENT OR IN RESPECT OF ANY SUCH TRANSACTION, THAT SUCH ACTION, SUIT OR
PROCEEDING MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE IN SUCH COURTS OR THAT THE
VENUE THEREOF MAY NOT BE APPROPRIATE OR THAT THIS AGREEMENT OR ANY SUCH DOCUMENT
MAY NOT BE ENFORCED IN OR BY SUCH COURTS. EACH PARTY HEREBY CONSENTS TO AND
GRANTS ANY SUCH COURT JURISDICTION OVER THE PERSON OF SUCH PARTIES AND OVER THE
SUBJECT MATTER OF ANY SUCH DISPUTE AND AGREES, TO THE MAXIMUM EXTENT PERMITTED
BY LAW, THAT THE MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH ANY SUCH
ACTION OR PROCEEDING IN THE
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MANNER PROVIDED IN SECTION 6.6 OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY
LAW, SHALL BE VALID AND SUFFICIENT SERVICE THEREOF.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH
MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES
ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OR ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE
BREACH, TERMINATION OR VALIDITY OF THIS AGREEMENT, OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i)
NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH SUCH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH SUCH
PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH SUCH PARTY HAS BEEN INDUCED
TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 6.9(b).
6.10 No Inconsistent Agreements. The Shareholder will not
hereafter enter into any agreement which is inconsistent with the rights granted
to the Purchasers by this Agreement or the Ancillary Agreements.
6.11 No Third Party Beneficiaries. Nothing contained in this
Agreement is intended to confer upon any person or entity other than the parties
hereto and their respective successors and permitted assigns, any benefit, right
or remedies under or by reason of this Agreement.
6.12 Termination. This Agreement shall terminate and be of
no further force or effect upon the seventh anniversary of the Subsequent
Closing Date.
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IN WITNESS WHEREOF, each Purchaser and the Shareholder have
duly executed or caused to be duly executed this Agreement as of the day and
year first above written.
ON BEHALF OF THE SHAREHOLDER:
/s/ Xxxxxxxx X. Xxxxxxxxx
-------------------------------
Xxxxxxxx X. Xxxxxxxxx
XXXXXXXX X. XXXXXXXXX TRUST,
DATED October 19, 1990, as amended
and restated on February 1, 1995
By: /s/ Xxxxxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxxxxx X. Xxxxxxxxx
Title: Sole Trustee
ON BEHALF OF THE PURCHASERS:
CDR-COOKIE ACQUISITION L.L.C.
By: /s/ Xxxxxxx Xx
-------------------------------
Name: Xxxxxxx Xx
Title: Secretary
CDR-COOKIE ACQUISITION VI-A
L.L.C.
By: /s/ Xxxxxxx Xx
-------------------------------
Name: Xxxxxxx Xx
Title: Secretary
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