Exhibit 10.1
EXECUTION COPY
VOTING AGREEMENT, dated as of December 3, 2001 (this "Agreement"), among
GENESEE & WYOMING INC., a Delaware corporation ("Parent"), and certain
stockholders of EMONS TRANSPORTATION GROUP, INC., a Delaware corporation
("Company"), that are parties hereto (each, a "Stockholder" and, collectively,
the "Stockholders").
W I T N E S S E T H:
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WHEREAS, Parent, ETR Acquisition Corporation, a Delaware corporation and a
wholly owned subsidiary of Parent ("Sub"), and Company propose to enter into an
Agreement and Plan of Merger, dated as of the date hereof (the "Merger
Agreement;" capitalized terms used without definition herein having the meanings
assigned to them in the Merger Agreement), pursuant to which Sub will merge with
and into Company, upon the terms and subject to the conditions set forth in the
Merger Agreement (the "Company Merger"); and
WHEREAS, as of the date hereof, each Stockholder is the record and
beneficial owner of shares of common stock, par value $0.01 per share, of
Company ("Company Common Stock") (with respect to each Stockholder, such
Stockholder's "Existing Shares" and, together with any shares of Company Common
Stock or other voting capital stock of Company acquired after the date hereof,
whether upon the exercise of warrants, options, conversion of convertible
securities or otherwise, such Stockholder's "Shares"); and
WHEREAS, as an inducement and condition to the willingness of Parent and
Sub to enter into the Merger Agreement, Parent and Sub have requested that the
Stockholders enter into this Agreement.
NOW THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements herein contained, and
intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
VOTING
1.1 Agreement to Vote. Each Stockholder hereby agrees that it shall, from
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time to time, at any meeting (whether annual or special and whether or not an
adjourned or postponed meeting) of stockholders of Company, however called, or
in connection with any written consent of the holders of Company Common Stock,
(a) if a meeting is held, appear at such meeting or otherwise cause the Shares
to be counted as present thereat for purposes of establishing a quorum, and (b)
vote or consent (or cause to be voted or consented), in person or by proxy, all
Shares, and any other voting securities of Company (whether acquired heretofore
or hereafter) that are beneficially owned or held of record by such Stockholder
or as to which such Stockholder has, directly or indirectly, the right to vote
or direct the voting, (x) in favor of the approval and adoption of the Merger
Agreement, the Company Merger and any action required in furtherance thereof and
(y) against any action, proposal, transaction or agreement that to the
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knowledge of such Stockholder would constitute a breach in any material respect
of any covenant, representation or warranty or any other obligation or agreement
of the Company under the Merger Agreement or of such Stockholder under this
Agreement.
1.2 Grant of Irrevocable Proxy. Each Stockholder, in its capacity as such,
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hereby irrevocably appoints Parent or any designee of Parent the lawful agent,
attorney and proxy of each such Stockholder during the term of this Agreement
(which proxy shall be automatically revoked without any further action on the
part of such Stockholder upon the termination of this Agreement) to vote the
Shares of such Stockholder in accordance with the agreement to vote Shares set
forth in Section 1.1 of this Agreement at any meeting of the stockholders of the
Company. Each Stockholder intends this proxy to be irrevocable and coupled with
an interest and will take such further action or execute such other instruments
as may be necessary to effectuate the intent of this proxy and hereby revokes
any proxy previously granted by it with respect to its Shares.
1.3 No Ownership Interest. Nothing contained in this Agreement shall be
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deemed to vest in Parent any direct or indirect ownership or incidence of
ownership of or with respect to any Shares. All rights, ownership and economic
benefits of and relating to the Shares shall remain vested in and belong to the
Stockholders, and Parent shall have no authority to manage, direct, superintend,
restrict, regulate, govern, or administer any of the policies or operations of
Company or exercise any power or authority to direct the Stockholders in the
voting of any of the Shares, except as otherwise provided herein, or in the
performance of the Stockholders' duties or responsibilities as stockholders of
Company.
1.4 No Inconsistent Agreements. Each Stockholder hereby covenants and
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agrees that, except as contemplated by this Agreement and the Merger Agreement,
the Stockholder (a) has not entered, and shall not enter at any time while this
Agreement remains in effect, into any voting agreement or voting trust with
respect to the Shares and (b) has not granted, and shall not grant at any time
while this Agreement remains in effect, a proxy or power of attorney with
respect to the Shares, in either case, which is inconsistent with such
Stockholder's obligations pursuant to this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF EACH STOCKHOLDER
Each Stockholder hereby, severally and not jointly, represents and warrants
to Parent as follows:
2.1 Authorization; Validity of Agreement; Necessary Action. Such
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Stockholder has full power and authority to execute and deliver this Agreement,
to perform such Stockholder's obligations hereunder and to consummate the
transactions contemplated hereby. The execution, delivery and performance by
such Stockholder of this Agreement and the consummation by it of the
transactions contemplated hereby have been duly and validly authorized by such
Stockholder and no other actions or proceedings on the part of such Stockholder
are necessary to authorize the execution and delivery by it of this Agreement
and the consummation by it of the transactions contemplated hereby. This
Agreement has been duly executed and delivered by such Stockholder, and,
assuming this Agreement constitutes a valid and binding obligation of Parent,
constitutes a valid and binding obligation of such Stockholder,
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enforceable against it 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,
general equitable principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing.
2.2 Shares. Such Stockholder's Existing Shares are, and all of its Shares
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from the date hereof through and on the Closing Date have been and will be,
owned beneficially and of record by such Stockholder. As of the date hereof,
such Stockholder's Existing Shares constitute all of the shares of Company
Common Stock owned of record or beneficially by such Stockholder. Such
Stockholder has or will have sole voting power, sole power of disposition, sole
power to issue instructions with respect to the matters set forth in Article I
hereof, and sole power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of such Stockholder's Existing
Shares and with respect to all of such 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.
ARTICLE III
OTHER COVENANTS
3.1 Further Agreements of Stockholders.
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(a) Each Stockholder, severally and not jointly, hereby agrees, while this
Agreement is in effect, and except as contemplated hereby, not to sell,
transfer, pledge, encumber, assign or otherwise dispose of (collectively, a
"Transfer") or enforce or permit the execution of the provisions of any
redemption, share purchase or sale, recapitalization or other agreement with
Company or enter into any contract, option or other arrangement or understanding
with respect to the offer for sale, sale, transfer, pledge, encumbrance,
assignment or other disposition of, any of its Existing Shares, any Shares
acquired after the date hereof, any securities exercisable for or convertible
into Company Common Stock, any other capital stock of Company or any interest in
any of the foregoing with any person, except to a person who agrees in writing,
in an instrument reasonably acceptable to Parent, to be bound by this Agreement
as a Stockholder and be subject to Sections 1.1 and 1.2 hereof.
(b) In the event of a stock dividend or distribution, or any change in
Company Common Stock by reason of any stock dividend or distribution, or any
change in Company 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 securities into which or for which any or
all of the Shares may be changed or exchanged or which are received in such
transaction.
ARTICLE IV
MISCELLANEOUS
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4.1 Termination. This Agreement shall terminate and no party shall have any
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rights or duties hereunder upon the earlier of (a) the Effective Time or (b)
termination of the Merger Agreement pursuant to Section 8.1 thereof. Nothing in
this Section 4.1 shall relieve or otherwise limit any party of liability for
breach of this Agreement.
4.2 Further Assurances. From time to time, at the other party's request and
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without further consideration, each party hereto shall execute and deliver such
additional documents and take all such further action as may be necessary or
desirable to consummate the transactions contemplated by this Agreement.
4.3 Notices. All notices and other communications hereunder shall be in
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writing and shall be deemed duly given (a) on the date of delivery if delivered
personally, or by telecopy or telefacsimile, upon confirmation of receipt, (b)
on the first business day following the date of dispatch if delivered by a
recognized next-day courier service, or (c) on the tenth business day following
the date of mailing if delivered by registered or certified mail, return receipt
requested, postage prepaid. All notices hereunder shall be delivered as set
forth below, or pursuant to such other instructions as may be designated in
writing by the party to receive such notice:
(a) if to Parent to:
Genesee & Wyoming Inc.
00 Xxxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
(b) if to a Stockholder:
c/o Emons Transportation Group, Inc.
00 Xxxxx Xxxxxx Xxxxxx
Xxxx, XX 00000
Fax: (000) 000-0000
4.4 Counterparts. This Agreement may be executed in one or more
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counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that both
parties need not sign the same counterpart.
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4.5 Governing Law. This Agreement shall be governed and construed in
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accordance with the laws of the State New York.
4.6 Amendment. This Agreement may not be amended except by an instrument in
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writing signed on behalf of each of the parties hereto.
4.7 Enforcement. The parties agree that irreparable damage would occur in
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the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms. It is accordingly agreed that the parties
shall be entitled to specific performance of the terms hereof, this being in
addition to any other remedy to which they are entitled at law or in equity.
4.8 Entire Agreement. This Agreement constitutes the entire agreement and
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supersedes all prior agreements and understandings, both written and oral, among
the parties, or any of them, with respect to the subject matter hereof.
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IN WITNESS WHEREOF, Parent and each of the Stockholders have caused this
Agreement to be signed by their respective officers or other authorized person
thereunto duly authorized as of the date first written above.
GENESEE & WYOMING INC.
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Executive Vice President
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By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
By: /s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
By: /s/ Xxxxxxxx X. Xxxxxxx
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Xxxxxxxx X. Xxxxxxx
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
By: /s/ Xxxx X. Xxxx
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Xxxx X. Xxxx
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
