CONFORMED COPY
STOCKHOLDER VOTING AGREEMENT
THIS STOCKHOLDER VOTING AGREEMENT (this "Agreement"), dated as of
November 8, 2002, by and among INTERNATIONAL SPECIALTY PRODUCTS INC., a
Delaware corporation (the "Company") and XXXXXX X. XXXXXX (the "Stockholder").
W I T N E S S E T H:
WHEREAS, concurrently herewith, International Specialty Products
Holdings Inc., a Delaware corporation (the "Merger Sub"), and the Company are
entering into an Agreement and Plan of Merger (as such agreement may hereafter
be amended from time to time, the "Merger Agreement");
WHEREAS, as of the date hereof, the Stockholder is the beneficial
owner (as such term is defined in the Merger Agreement) of (x) 52,328,040
shares of Company Common Stock, representing approximately 80.4% of all
outstanding shares of Company Common Stock, and (y) all of the capital stock
of Merger Sub;
WHEREAS, approval of the Merger Agreement by the Company's
stockholders is required in order to consummate the Merger;
WHEREAS, the board of directors of the Company (acting on the
recommendation of a special committee) has, prior to the execution of this
Agreement, duly and validly approved and adopted the Merger Agreement and has
resolved to recommend that its stockholders approve the Merger Agreement, and
such approval, adoption and resolution have not been withdrawn; and
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises, representations, warranties, respective covenants and agreements of
the parties contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged by each of the
parties hereto, the parties hereto, intending to be legally bound hereby,
agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1 Defined Terms. Terms used in this Agreement and not
otherwise defined herein shall have the respective meanings ascribed to such
terms in the Merger Agreement.
ARTICLE II
VOTING AGREEMENT
Section 2.1 Agreement to Vote. Upon the terms and subject to the
conditions hereof, the Stockholder irrevocably and unconditionally agrees
that, until this Agreement is
terminated pursuant to Section 5.1 hereof, at any meeting (whether annual or
special, and whether or not an adjourned or postponed meeting) of the
Company's stockholders, however called, or in connection with any written
consent of the Company's stockholders, the Stockholder shall vote, or cause to
be voted (including by written consent, if applicable) all shares of Company
Common Stock then beneficially owned by the Majority Stockholder (i) in favor
of the adoption of the Merger Agreement and (ii) against any action that may
reasonably be expected to result in the conditions set forth in Articles VI,
VII and VIII of the Merger Agreement not being fulfilled. The Stockholder
agrees not to enter into any agreement or commitment with any person, the
effect of which would be inconsistent with or violative of the provisions and
agreements contained in this Article II.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of Stockholder.
The Stockholder represents and warrants to the Company that the
following statements are, as of the date of this Agreement, true and correct:
(a) The Stockholder is the beneficial owner of the Majority
Stockholder Shares. The Stockholder has the sole power to vote (or cause to be
voted) such Majority Stockholder Shares.
(b) This Agreement has been duly executed and delivered by the
Stockholder.
(c) This Agreement constitutes the valid and binding agreement of
the Stockholder, enforceable against the Stockholder in accordance with its
terms.
(d) The execution and delivery of this Agreement by the Stockholder
does not violate or breach, except as will not materially impair the ability
of the Stockholder to effectuate, carry out or comply with all of the terms of
this Agreement, (i) any applicable law, governmental approval or contract to
which the Stockholder is a party or by which the Stockholder's assets may be
bound or (ii) require any consent or approval of, or filing with, any
Governmental Entity.
Section 3.2 Representations and Warranties of Company.
The Company represents and warrants to the Stockholder that the
following statements are, as of the date of this Agreement, true and correct:
(a) This Agreement has been duly executed and delivered by a duly
authorized officer of the Company.
(b) This Agreement constitutes the valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms.
-2-
(c) The execution and delivery of this Agreement by the Company does
not violate or breach, and will not give rise to any violation or breach, of
(i) the Company's certificate of incorporation and by-laws or (ii) except as
will not materially impair its ability to effectuate, carry out or comply with
all of the terms of this Agreement, (A) any applicable law, governmental
approval or contract to which the Company or its Subsidiaries are a party or
by which their respective assets or properties may be bound or (B) require any
consent or approval of, or filing with, any Governmental Entity.
ARTICLE IV
COVENANTS
Section 4.1 Covenants of the Stockholder. The Stockholder covenants
and agrees with the Company that, during the period commencing on the date
hereof and ending on the date this Agreement is terminated under Article V
hereof:
(a) The Stockholder shall not, directly or indirectly, sell,
transfer, pledge, hypothecate, encumber, assign or dispose of any Majority
Stockholder Shares (or the beneficial ownership thereof) or offer to make such
a sale, transfer or other disposition (collectively, "Transfer") to any
person, except (i) a Transfer to a Charitable Organization or (ii) Transfers
of up to 114,336 Majority Stockholder Shares currently held by Xxxxxx Joint
Venture II LLC, so long as, in each case, after giving effect to such
Transfer, the Stockholder remains a beneficial owner of at least seventy-five
percent (75%) of the issued and outstanding Company Common Stock.
(b) The Stockholder shall execute and deliver such other documents
and instruments and take such further actions as are necessary in order to
ensure that the Company receives the benefit of this Agreement.
ARTICLE V
TERMINATION
Section 5.1 Termination. This Agreement shall terminate and be of no
further force or effect upon the earlier to occur of (i) the mutual consent of
the Company (with the approval of the Special Committee) and the Stockholder,
(ii) the Effective Time, (iii) the termination of the Merger Agreement, (iv)
written notice of termination by either party hereto if there has been a
breach by the other party of any representation, warranty or agreement
contained in this Agreement or (v) the making of an Adverse Company Board
Recommendation.
Section 5.2 Effect of Termination. In the event of any termination
of this Agreement, this Agreement (other than Sections 6.1 through 6.13,
inclusive) shall become void and of no effect with no liability on the part of
any party hereto; provided that no such termination shall relieve any party
hereto from liability for any breach of this Agreement prior to termination
thereof.
-3-
ARTICLE VI
GENERAL
Section 6.1 Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be deemed to have
been duly given (a) on the date of delivery if delivered personally, (b) on
the first Business Day following the date of dispatch if delivered by a
nationally recognized next-day courier service, (c) on the fifth Business Day
following the date of mailing if delivered by registered or certified mail,
return receipt requested, postage prepaid or (d) if sent by facsimile
transmission, with a copy mailed on the same day in the manner provided in (a)
or (b) above, when transmitted and receipt is confirmed by telephone; provided
that any notice received by facsimile or otherwise at the addressee's location
on any Business Day after 5:00 p.m. (addressee's local time) shall be deemed
to have been received at 9:00 a.m. (addressee's local time) on the next
Business Day. Any party to this Agreement may notify any other party of any
changes to the address or any of the other details specified in this
paragraph, provided that such notification shall only be effective on the date
specified in such notice or five (5) Business Days after the notice is given,
whichever is later. Rejection or other refusal to accept or the inability to
deliver because of changed address of which no notice was given shall be
deemed to be receipt of the notice as of the date of such rejection, refusal
or inability to deliver. All notices hereunder shall be delivered to the
parties as set forth below, or pursuant to such other instructions as may be
designated in writing by the party to receive such notice:
if to the Company, to it at:
c/o International Specialty Products Inc.
0000 Xxxx Xxxx
Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Xxxxxx Xxxxxxxxx
Xxxx Xxxxxxx
Xxxx Xxxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
with a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxx, Xx.
Xxxxxxx X. Xxxxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
-4-
if to the Stockholder, to it at:
Xxxxxx X. Xxxxxx
0000 Xxxx Xxxx
Xxxxx, XX 00000
Telephone: 000-000-0000
Fax: 000-000-0000
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
Section 6.2 No Third-Party Beneficiaries. This Agreement is not
intended to confer third party beneficiary rights upon any person.
Section 6.3 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed entirely in such State. Each of the parties
irrevocably and unconditionally waives, to the fullest extent permitted by
applicable law, any and all rights to trial by jury in connection with any
litigation arising out of or relating to this Agreement or the transactions
contemplated hereby.
Section 6.4 Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances,
is held to be invalid, illegal or unenforceable in any respect for any reason
under any present or future law, public policy or order, (i) such provision
shall be fully severable and (ii) this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part hereof. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties
shall negotiate in good faith with a view to the substitution therefor of a
suitable and equitable solution in order to carry out to the maximum extent
possible, so far as may be valid, legal and enforceable, the intent and
purpose of such invalid provision; provided that the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of the
parties hereto shall be enforceable to the fullest extent permitted by law.
Section 6.5 Assignment. Neither this Agreement nor the rights or the
obligations of either party hereto are assignable in whole or in part (whether
by operation of law or otherwise), without the written consent of the other
parties and the Company and any attempt to do so in contravention of this
Section 6.5 shall be void.
-5-
Section 6.6 Successors. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective successors and
permitted assigns.
Section 6.7 Interpretation. When a reference is made in this
Agreement to Sections, such reference shall be to a Section of this Agreement
unless otherwise indicated. Whenever the words "include," "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation." The words "hereof," "herein" and "herewith"
and words of similar import shall, unless otherwise stated, be construed to
refer to this Agreement as a whole and not to any particular provision of this
Agreement. The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such term. Any agreement or
instrument defined or referred to herein or in any agreement or instrument
that is referred to herein means such agreement or instrument as from time to
time amended, modified or supplemented and attachments thereto and instruments
incorporated therein. References to a person are also to its successors and
permitted assigns. The parties have participated jointly in the negotiation
and drafting of this Agreement. In the event an ambiguity or question of
intent or interpretation arises, this Agreement shall be construed as if
drafted jointly by the parties and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local
or foreign statute or law shall be deemed to also to refer to any amendments
thereto and all rules and regulations promulgated thereunder, unless the
context requires otherwise.
Section 6.8 Amendments. This Agreement may not be amended, modified
or waived except by written agreement signed by the Stockholder and the
Company (upon the approval of the Special Committee).
Section 6.9 Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements, understandings, negotiations, representations
and warranties, and discussions, whether oral or written, among the parties
hereto, with respect to the subject matter hereof.
Section 6.10 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument and shall become
effective when one or more counterparts have been signed by each of the
parties and delivered to the other parties.
Section 6.11 Execution. This Agreement may be executed by facsimile
signatures by any party and such signature shall be deemed binding for all
purposes hereof, without delivery of an original signature being thereafter
required.
Section 6.12 Specific Performance. The parties hereto acknowledge
that irreparable damage would result if this Agreement were not specifically
enforced, and agree that the rights and obligations of the parties under this
Agreement may be enforced by a decree of specific performance issued by a
court of competent jurisdiction to the extent that specific performance is
available under applicable law. Such remedy shall, however, not be exclusive
and shall be in addition to any other remedies which any party may have under
this Agreement or otherwise.
-6-
Section 6.13 Action in Beneficial Stockholder Capacity Only. The
Stockholder does not make any agreement or understanding herein in any
capacity other than as a beneficial owner of stock of the Company. The
Stockholder hereby disclaims any pecuniary interest in the Company Common
Stock in excess of his interests in certain limited partnership and limited
liability company entities that own shares of Company Common Stock.
-7-
IN WITNESS WHEREOF, the parties have duly executed this Stockholder
Voting Agreement as of the date first above written.
INTERNATIONAL SPECIALTY PRODUCTS INC.
/s/ Xxxxx Xxxxx
_____________________________________
Name: Xxxxx Xxxxx
Title: President and Chief Executive
Officer
XXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxx
_____________________________________
