Exhibit 99(c)(2)
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EXECUTION COPY
VOTING AGREEMENT
AGREEMENT dated as of June 23, 1998 by and between LAREDO ACQUISITION
CORP., a Delaware corporation ("Acquisition"), and the other parties
signatory hereto (each a "Stockholder").
RECITALS
A. Concurrently herewith, Acquisition, and Celadon Group, Inc., a
Delaware corporation (the "Company"), are entering into an Agreement and Plan
of Merger of even date herewith (as such agreement may be amended from
time to time, the "Merger Agreement"; capitalized terms used but not
defined herein shall have the meanings set forth in the Merger Agreement)
pursuant to which (and subject to the terms and conditions specified
therein) Acquisition will be merged with and into the Company (the "Merger").
B. As a condition to Acquisition entering into the Merger Agreement,
Acquisition requires that each Stockholder enter into, and each such
Stockholder hereby agrees to enter into, this Agreement.
AGREEMENT
To implement the foregoing and in consideration of the mutual
agreements contained herein, the parties hereby agree as follows:
3. Representations and Warranties of Stockholders. Each Stockholder hereby
severally and not jointly represents and warrants to Acquisition as follows:
A. Ownership of Shares.
i. Such Stockholder is the record holder or beneficial owner of
the number of shares of Company Common Stock as is set forth opposite
such Stockholder's name on Schedule I hereto (such shares shall
constitute the "Existing Shares", and together with any shares of
Company Common Stock acquired of record or beneficially by such
Stockholder in any capacity after the date hereof and prior to the
termination hereof, whether upon exercise of options, conversion of
convertible securities, purchase, exchange or otherwise, shall
constitute the "Shares").
ii. On the date hereof, the Existing Shares set forth opposite
such Stockholder's name on Schedule I hereto constitute all of the
outstanding shares of Company Common Stock owned of record or
beneficially by such Stockholder. Such Stockholder does not have
record or beneficial ownership of any Shares not set forth on Schedule
I hereto.
iii. Such Stockholder has sole power of disposition with respect
to all of the Existing Shares set forth opposite such Stockholder's
name on Schedule I and sole voting power with respect to the matters
set forth in Section 2 hereof and sole power to demand appraisal
rights, in each case with respect to all of the Existing Shares set
forth opposite such Stockholder's name on Schedule I, with no
restrictions on such rights, subject to applicable federal securities
laws and the terms of this
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Agreement.
iv. Such Stockholder will have sole power of disposition with
respect to Shares other than Existing Shares, if any, which become
beneficially owned by such Stockholder and will have sole voting power
with respect to the matters set forth in Section 2 hereof and sole
power to demand appraisal rights, in each case with respect to all
Shares other than Existing Shares, if any, which become beneficially
owned by such Stockholder with no restrictions on such rights, subject
to applicable federal securities laws and the terms of this Agreement.
B. Organization; Power; Binding Agreement. If such Stockholder is a
corporation, such Stockholder is a corporation duly formed, validly existing
and in good standing under the laws of its jurisdiction of its organization.
If such Stockholder is a corporation, such Stockholder has the necessary
corporate power and authority to enter into and perform all of such
Stockholder's obligations under this Agreement and has taken all corporate
action necessary to execute and deliver this Agreement, to consummate the
transactions contemplated hereby and to perform its obligations hereunder,
and no other corporate proceedings on the part of such Stockholder are
necessary to authorize the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated
hereby. If such Stockholder is an individual, such Stockholder has the legal
capacity, power and authority to enter into and perform all of such
Stockholder's obligations under this Agreement. This Agreement has been duly
and validly executed and delivered by such Stockholder and constitutes a
valid and binding agreement of such Stockholder, enforceable against such
Stockholder in accordance with its terms. If such Stockholder is married and
such Stockholder's Shares constitute community property, this Agreement has
been duly authorized, executed and delivered by, and constitutes a valid
and binding agreement of, such Stockholder's spouse, enforceable against
such person in accordance with its terms.
C. No Conflicts. Except for filings under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), if
applicable, and any required amendments to any Schedule 13D filed by any
such Stockholder, (A) no filing with, and no permit, authorization,
consent or approval of, any state or federal public body or authority is
necessary for the execution of this Agreement by such Stockholder and the
consummation by such Stockholder of the transactions contemplated hereby
and (B) neither the execution, delivery or performance of this Agreement
by such Stockholder nor the consummation by such Stockholder of the
transactions contemplated hereby nor compliance by such Stockholder with
any of the provisions hereof shall (x) conflict with or result in any breach
of any applicable certificate of incorporation, bylaws, trust,
partnership agreement or other agreements or organizational documents
applicable to such Stockholder, (y) result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a default (or
give rise to any third party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, license, contract,
commitment, arrangement, understanding, agreement
or other instrument or obligation of any kind to which such Stockholder
is a party or by which such Stockholder or any of such Stockholder's
properties or assets may be bound or (z) violate any order, writ,
injunction, decree, judgment, law, statute, rule or regulation applicable to
such Stockholder or any of such Stockholder's properties or assets.
D. No Transfer. Except as described on Schedule II, such Stockholder's
Shares and the certificates representing such Shares are now and at all
times during the term hereof will be held by such Stockholder, or by a
nominee or custodian for the benefit of such Stockholder, free and clear
of all liens, claims, security interests, proxies, voting trusts or
agreements, understandings or arrangements or any other
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encumbrances whatsoever, except for any such encumbrances or proxies arising
hereunder.
E. No Finders. No broker, investment banker, financial adviser or
other person is entitled to any broker's, finder's, financial adviser's or
other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of such
Stockholder in his or her capacity as such.
F. Acknowledgment. Such Stockholder understands and acknowledges that
Acquisition is entering into the Merger Agreement in reliance upon
such Stockholder's execution and delivery of this Agreement.
1. Agreement To Vote; Proxy.
2. Voting. Each Stockholder hereby severally and not jointly agrees that,
until the Termination Date (as defined in Section 7 hereof), at any
meeting of the stockholders of the Company, however called, or in
connection with any written consent of the stockholders of the Company,
such Stockholder shall vote (or cause to be voted) the Shares held of
record or beneficially by such Stockholder (i) in favor of the Merger and
adoption of the Merger Agreement, the execution and delivery by the
Company of the Merger Agreement and the approval of the terms thereof
and in favor of each of the other actions contemplated by the Merger
Agreement and this Agreement and any actions required in furtherance
hereof and thereof; (ii) against any action or agreement that would (or would
be reasonably likely to) result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the
Company under the Merger Agreement or this Agreement; and (iii) except
as specifically requested in writing by Acquisition in advance, against the
following actions (other than the Merger and the transactions contemplated
by the Merger Agreement): (1) any extraordinary corporate transaction,
such as a merger, consolidation or other business combination involving
the Company or any of its subsidiaries; (2) a sale, lease or transfer
(whether by merger, consolidation, operation of law or otherwise) of a
material amount of assets of the Company or any of its subsidiaries
or a reorganization, recapitalization, dissolution or liquidation of the
Company or any of its subsidiaries; (3) (a) any change in the majority of the
board of directors of the Company; (b) any change in the present
capitalization of the Company or any amendment of the Company's certificate
of incorporation or by-laws; (c) any other material change in the
Company's corporate structure or business; or (d) any other action which is
intended, or could reasonably be expected, to impede, interfere with,
delay, postpone, discourage or materially adversely affect the Merger
or the transactions contemplated by the Merger Agreement or this
Agreement or the contemplated economic benefits of any of the foregoing.
Such Stockholder shall not enter into any agreement or understanding with
any person or entity prior to the Termination Date to vote or give
instructions after the Termination Date in any manner inconsistent with
clauses (i), (ii) or (iii) of the preceding sentence.
3. PROXY. EACH STOCKHOLDER HEREBY GRANTS TO, AND APPOINTS, ACQUISITION AND
XXXXX XXXXX, PRESIDENT OF ACQUISITION, AND XXXXXXX XXXXXXXX, VICE PRESIDENT
OF ACQUISITION, IN THEIR RESPECTIVE CAPACITIES AS OFFICERS OF ACQUISITION,
AND ANY INDIVIDUAL WHO SHALL HEREAFTER SUCCEED TO ANY SUCH OFFICE OF
ACQUISITION, AND ANY OTHER DESIGNEE OF ACQUISITION, EACH OF THEM
INDIVIDUALLY, SUCH STOCKHOLDER'S IRREVOCABLE (UNTIL THE TERMINATION DATE)
PROXY AND ATTORNEY-IN-FACT (WITH FULL POWER OF SUBSTITUTION) TO VOTE THE
SHARES AS INDICATED IN SECTION 2.1 ABOVE. EACH STOCKHOLDER INTENDS THIS
PROXY
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TO BE IRREVOCABLE (UNTIL THE TERMINATION DATE) AND COUPLED WITH AN INTEREST
AND WILL TAKE SUCH FURTHER ACTION AND EXECUTE SUCH OTHER INSTRUMENTS AS
MAY BE NECESSARY TO EFFECTUATE THE INTENT OF THIS PROXY AND HEREBY REVOKES
ANY PROXY PREVIOUSLY GRANTED BY SUCH STOCKHOLDER WITH RESPECT TO SUCH
STOCKHOLDER'S SHARES.
4. Certain Covenants of Stockholders. Except in accordance with the terms
of this Agreement, each Stockholder hereby severally covenants and
agrees as follows:
5. No Solicitation. Prior to the Termination Date, no Stockholder shall, in
its capacity as such, directly or indirectly (including through advisors,
agents or other intermediaries), solicit (including by way of furnishing
information) or respond to any inquiries or the making of any proposal by
any person or entity (other than Acquisition or any Affiliate thereof)
with respect to the Company that constitutes or could reasonably be
expected to lead to an Acquisition Proposal (as defined in Section 6.4 in
the Merger Agreement). If any Stockholder in its capacity as such receives
any such inquiry or proposal, then such Stockholder shall promptly
inform Acquisition of the terms and conditions, if any, of such inquiry or
proposal and the identity of the person making it. Each Stockholder, in its
capacity as such, will immediately cease and cause to be terminated any
existing activities, discussions or negotiations with any parties conducted
heretofore with respect to any of the foregoing. Notwithstanding the
foregoing, nothing in this Section 3.1 shall restrict a Stockholder who is
also a director of the Company from taking actions in such Stockholder's
capacity as a director to the extent and in the circumstances permitted by
Section 6.4 of the Merger Agreement.
6. Restriction on Transfer, Proxies and Noninterference; Restriction
on Withdrawal. Prior to the Termination Date, no Stockholder shall,
directly or indirectly: (i) except pursuant to the terms of the Merger
Agreement and to Acquisition pursuant to this Agreement, offer for sale,
sell, transfer (whether by merger, consolidation, operation of law or
otherwise), tender, pledge, encumber, assign or otherwise dispose of,
enforce or permit the execution of the provisions of any redemption
agreement with the Company or enter into any contract, option or other
arrangement or understanding with respect to or consent to the offer for
sale, sale, transfer (whether by merger, consolidation, operation of law or
otherwise), tender, pledge, encumbrance, assignment or other disposition of,
or exercise any discretionary powers to distribute, any or all of such
Stockholder's Shares or any interest therein, (ii) except as
contemplated by this Agreement, grant any proxies or powers of attorney
with respect to any Shares, deposit any Shares into a voting trust or
enter into a voting agreement with respect to any Shares; or (iii) take any
action that would make any representation or warranty of such Stockholder
contained herein untrue or incorrect or have the effect of preventing or
disabling such Stockholder from performing such Stockholder's obligations
under this Agreement. Acquisition acknowledges the circumstances
described on Schedule II which shall not be construed as a breach of this
covenant.
7. Waiver of Appraisal Rights. Each Stockholder hereby waives any rights
of appraisal from the Merger that such Stockholder may have.
8. Agreement to Roll-Over. Each Stockholder listed on Schedule A to the
Merger Agreement understands and acknowledges that Sub is entering into
the Merger Agreement in reliance upon the conversion of their shares
into the right to receive the Surviving Corporation Common Stock and
agree to such conversion pursuant to Section 3.2 of the Merger Agreement.
Each Stockholder hereby agrees to
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rollover the number of shares of Company Common Stock set forth opposite
such Stockholder's name on Schedule A to the Merger Agreement.
9. Confidentiality, No Hire.
A. Each Stockholder agrees that for a period ending five years
after the Effective Time of the Merger, such Stockholder will not
disclose to any other party, unless required to do so by law, any
Confidential Information relating to the Company or to any subsidiary
or affiliate thereof which information was acquired during the course of
such Stockholder's relationship with the Company. As used in this
Agreement, the term "Confidential Information" means information that is
not generally known or available to the public and that is used, developed
or obtained by the Company or its subsidiaries or affiliates in
connection with its businesses, including but not limited to, (i) products
or services; (ii) fees, costs and pricing structures; (iii) designs; (iv)
computer software, including operating systems, applications and program
listings; (v) flow charts, manuals and documentation; (vi) data bases;
(vii) accounting and business methods; (viii) inventions, devices, new
developments, methods and processes, whether patentable or unpatentable
and whether or not reduced to practice; (ix) customers or customer
requirements, order levels or projections and customer or client lists; (x)
other copyrightable works; (xi) all technology and trade secrets; and
(xii) all similar and related information in whatever form. Confidential
Information will not include any information that has been published in a
form generally available to the public prior to the date the Stockholder
proposes to disclose or use such information.
B. Each Stockholder agrees that for a period ending two years
after the Effective Time of the Merger, without the prior written
consent of the Company, neither such Stockholder nor any business or
enterprise with which such Stockholder is associated as an officer, director
or controlling shareholder or other investor (in each case, with the power to
direct or cause the direction of the management of such business or
enterprise) will employ or attempt to employ an employee of the Company or
any of its Subsidiaries or joint ventures.
1. Hanseatic Agreement. Each Stockholder that is a party to that
certain Stockholders Agreement dated as of October 8, 1992 and as amended as
of July 3, 1996 (the "Stockholders Agreement") by and among the Company,
Xxxxxxx Xxxxxxx, and Hanseatic Corporation agrees that, from the date
hereof until the date the Merger Agreement is terminated in accordance with
its terms, the Stockholders Agreement shall be of no force or effect to
the extent that the Stockholders Agreement is inconsistent with this
Agreement, the Merger Agreement or the transactions contemplated hereby or
thereby and that such Stockholder shall not, and shall not attempt to,
either directly or indirectly, exercise any of its rights under the
Stockholders Agreement in any manner inconsistent with this Agreement,
the Merger Agreement or the transactions contemplated hereby or thereby
(it being agreed that, without limitation, the exercise of any rights
under Article II of the Stockholders Agreement by any Stockholder in
connection with the transactions contemplated by the Merger Agreement would
be inconsistent with this Agreement, the Merger Agreement and the
transactions contemplated
hereby and thereby). Each Stockholder that is party to the
Stockholders Agreement further agrees that the Stockholder Agreement shall
terminate as of the Closing and to execute such additional documents and
agreements to effect the foregoing. Acquisition acknowledges that
Hanseatic Corporation's representations and warranties set forth in
Sections 1(a)(ii), 1(a)(iii) and 1(a)(iv) shall not be deemed to have been
breached as a result of the existence of the Stockholders Agreement.
2. Further Assurances. From time to time, at the other party's request
and without further consideration,
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each party hereto shall execute and deliver such additional documents and
take all such further action as may be necessary or desirable to consummate
and make effective, in the most expeditious manner practicable, the
transactions contemplated by this Agreement.
3. Certain Events. Each Stockholder agrees that this Agreement and
the obligations thereunder shall attach to such Stockholder's Shares and
shall be binding upon any person or entity to which legal or beneficial
ownership of such Shares shall pass, whether by operation of law or
otherwise, including without limitation such Stockholder's heirs, guardians,
administrators or successors or as a result of any divorce.
4. Stop Transfer. Each Stockholder agrees with, and covenants to,
Acquisition that such Stockholder shall not request that the Company
register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of such Stockholder's Shares,
unless such transfer is made in compliance with this Agreement.
5. Termination. The obligations of the Stockholders under this Agreement
shall terminate upon the date the Merger Agreement is terminated in
accordance with its terms. The termination of this Agreement shall not
relieve any party from liability for any breach of this Agreement.
6. Miscellaneous.
7. Entire Agreement; Assignment. This Agreement (i) constitutes the
entire agreement between the parties with respect to the subject matter
hereof and supersedes all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter
hereof and (ii) shall not be assigned by operation of law or otherwise
without the prior written consent of the other parties, provided that
Acquisition may assign, in its sole discretion, its rights and
obligations hereunder to any affiliate of Acquisition, but no such
assignment shall relieve Acquisition of its obligations hereunder if such
assignee does not perform such obligations.
8. Amendments. 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; provided that Schedule I may be
supplemented by Acquisition by adding the name and other relevant
information concerning any stockholder of the Company who is or agrees
to be bound by the terms of this Agreement without the agreement of any
other party hereto, and thereafter such added stockholder shall be treated
as a "Stockholder" for all purposes of this Agreement.
9. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall
be deemed to have been duly received if so given) by hand delivery,
telegram, telex or telecopy, or by mail (registered or certified mail,
postage prepaid, return receipt requested) or by any courier service,
such as Federal Express, providing proof
of delivery. All communications hereunder shall be delivered to the
Stockholders at the addresses set forth on Schedule I hereto. All
communications hereunder shall be delivered to Acquisition as follows:
c/o Odyssey Investment Partners, LLC
000 Xxxx Xxxxxx
Xxxx Xxxxx, 00xx Floor
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Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxx
copy to:
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxxx Xxxxxxx
or to such other address as the person to whom notice is given may
have previously furnished to the others in writing in the manner set forth
above.
10. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, regardless of the
laws that might otherwise govern under applicable principles of conflicts of
laws thereof.
11. Enforcement. The parties 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 this Agreement and
to enforce specifically the terms and provisions of this Agreement.
12. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but
both of which shall constitute one and the same Agreement.
13. Descriptive Headings. The descriptive headings used herein are inserted
for convenience of reference only and are not intended to be part of or to
affect the meaning or interpretation of this Agreement.
14. Severability. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion
of any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not
affect any other provision or portion of any provision in such
jurisdiction, and this Agreement will be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision or portion of any provision had never been
contained herein.
15. Definitions; Construction. For purposes of this Agreement:
A. "beneficially own" or "beneficial ownership" with respect to
any securities shall mean having "beneficial ownership" of such
securities (as determined pursuant to Rule 13d-3 under the Exchange Act),
including pursuant to any agreement, arrangement or understanding, whether
or not in writing. Without
duplicative counting of the same securities by the same holder,
securities beneficially owned by a Person shall include securities
beneficially owned by all other Persons with whom such Person would
constitute a "group" as described in Section 13(d)(3) of the Exchange Act.
B. "Person" shall mean an individual, corporation, partnership,
joint venture, association, trust,
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unincorporated organization or other entity.
C. In the event of a stock dividend or distribution, or any change
in the Company Common Stock by reason of any split-up,
subdivision, 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 stock distributed pursuant to such stock dividends and
distributions and any shares into which or for which any or all of the
Shares may be changed, exchanged, split, subdivided, combined or
recapitalized.
1. Stockholder Capacity. Notwithstanding anything herein to the contrary,
no person executing this Agreement who is, or becomes during the term
hereof, a director of the Company makes any agreement or understanding
herein in his or her capacity as such director, and the agreements set
forth herein shall in no way restrict any director in the exercise of his or
her fiduciary duties as a director of the Company. Each Stockholder has
executed this Agreement solely in his or her capacity as the record or
beneficial holder of such Stockholder's Shares.
[Signature Page Follows]
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IN WITNESS WHEREOF, Acquisition and each Stockholder have caused
this Agreement to be duly executed as of the day and year first above written.
LAREDO ACQUISITION CORP.
By:
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Name:
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Title:
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By:
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Name:
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Title:
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STOCKHOLDERS:
Xxxxxxx Xxxxxxx
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Hanseatic Corporation
By:
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Name:
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Title:
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Schedule I
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Name Number of Existing Shares
Xxxxxxx Xxxxxxx 924,804
Hanseatic Corporation 947,232*
*Exclusive of 12,121 shares issuable upon exercise of warrants, which for
purposes of this Agreement shall be deemed Shares solely in the event
of exercise of such warrants.
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Schedule II
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Hanseatic Americas LDC and certain clients of Hanseatic Corporation
have economic rights with respect to the Shares beneficially owned by
Hanseatic Corporation. However, such rights do not impair or limit Hanseatic
Corporation's record and beneficial ownership power of disposition, voting
power or power to demand appraisal rights with respect to its Shares.
