VOTING AGREEMENT
Exhibit 7i
THIS VOTING AGREEMENT (this “Agreement”) is dated as of December 15, 2006, by and
between MDI Holdings, LLC, a Delaware limited liability company (“Parent”), and Xxxxxx X.
Xxxxxx (“Shareholder”).
RECITALS
WHEREAS, simultaneously with the execution of this Agreement, Parent, Matrix Acquisition
Corp., a Connecticut corporation (“Merger Sub”), and MacDermid, Incorporated, a Connecticut
corporation (the “Company”), have entered into an Agreement and Plan of Merger (as it may
be amended, supplemented, modified or waived from time to time, the “Merger Agreement”),
which provides, among other things, for the Merger of Merger Sub with and into the Company, upon
the terms and subject to the conditions set forth therein;
WHEREAS, Shareholder is the record and Beneficial Owner of, and has the sole right to vote and
dispose of, that number of Shares set forth below Shareholder’s name on the signature page hereto;
and
WHEREAS, as an inducement to Parent entering into the Merger Agreement and incurring the
obligations therein, Parent has required that Shareholder enter into this Agreement.
NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as follows:
ARTICLE I. CERTAIN DEFINITIONS
Section 1.1. Capitalized Terms. Capitalized terms used in this Agreement and not
defined herein have the meanings ascribed to such terms in the Merger Agreement.
Section 1.2. Other Definitions. For the purposes of this Agreement:
(a) “Beneficial Owner” or “Beneficial Ownership” with respect to any
securities means having “beneficial ownership” of such securities (as determined pursuant to Rule
13d-3 under the Exchange Act).
(b) “Expiration Time” has the meaning set forth in Section 2.1.
(c) “Owned Shares” means the Shares Beneficially Owned by Shareholder as of the date
of this Agreement and set forth below his name on the signature page hereto and any Shares acquired
by Shareholder after the date of this Agreement.
(d) “Permitted Transferee” has the meaning set forth in Section 2.3.
(e) “Representative” means, with respect to any particular Person, any director,
officer, employee, consultant, accountant, legal counsel, investment banker or other representative
of such Person.
(f) “Shares” has the meaning ascribed thereto in the Merger Agreement, and will also
include for purposes of this Agreement all shares or other voting securities into which Shares may
be reclassified, sub-divided, consolidated or converted and any rights and benefits arising
therefrom, including any dividends or distributions of securities which may be declared in respect
of the Shares and entitled to vote in respect of the matters contemplated by Article II.
(g) “Transfer” means, with respect to a security, the sale, grant, assignment,
transfer, pledge, encumbrance or other disposition of such security or the Beneficial Ownership
thereof (including by operation of Law), or the entry into any Contract to effect any of the
foregoing, including, for purposes of this Agreement, the transfer or sharing of any voting power
of such security or other rights in or of such security.
ARTICLE II. AGREEMENT TO VOTE
Section 2.1. Agreement to Vote. Subject to the terms and conditions hereof,
Shareholder irrevocably and unconditionally agrees that from and after the date hereof and until
the earliest to occur of (i) the Effective Time and (ii) the termination of the Merger Agreement in
accordance with its terms (the “Expiration Time”), at any meeting (whether annual or
special, and at each adjourned or postponed meeting) of the Company’s shareholders, however called,
for the purpose of, or in connection with any written consent of the Company’s shareholders with
respect to, seeking shareholder adoption of the Merger Agreement (a “Shareholder Meeting”),
Shareholder will (x) appear at such meeting or otherwise cause the Owned Shares to be counted as
present thereat for purposes of calculating a quorum, and respond to each request by the Company
for written consent, if any and (y) vote, or cause to be voted (including by written consent, if
applicable), all of the Owned Shares (A) in favor of the adoption of the Merger Agreement (whether
or not recommended by the Company’s Board of Directors or any committee thereof) and the approval
of the transactions contemplated thereby, including the Merger, (B) against any Alternative
Proposal submitted by the Company for a vote by its shareholders, (C) against any proposal made in
opposition to, or in competition or inconsistent with, the Merger Agreement or the Merger,
including the adoption thereof or the consummation thereof, and (D) against any extraordinary
dividend by the Company or change in the capital structure of the Company (other than pursuant to
the Merger Agreement).
Section 2.2. Additional Shares. Shareholder hereby agrees, while this Agreement is in
effect, to promptly notify Parent of the number of any new Shares with respect to which Beneficial
Ownership is acquired by Shareholder, if any, after the date hereof and before the Expiration Time.
Any such Shares shall automatically become subject to the terms of this Agreement as though owned
by Shareholder as of the date hereof.
Section 2.3. Restrictions on Transfer, Etc. Except as provided for herein,
Shareholder agrees, from the date hereof until the Expiration Time, not to (i) directly or
indirectly Transfer any Owned Shares other than any Transfer to members of Shareholder’s immediate
family, a family trust of Shareholder or a charitable institution (each a “Permitted
Transferee”), but only if, in each case, prior to the effectiveness of the Transfer, the
Permitted Transferee of such Owned Shares agrees in writing to be bound by the terms hereof (or an
agreement that is substantively identical to this Agreement) and notice of such Transfer, including
the name and address of the Permitted Transferee, is delivered to Parent pursuant to Section 6.1
hereof; provided that
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Transfers to minor children shall be to their legal custodians who have the capacity and
authority to be bound by the terms hereof on behalf of such minor children; and provided, further,
that Shareholder shall remain jointly and severally liable for the breaches of any Permitted
Transferees of the terms hereof, (ii) tender any Owned Shares into any tender or exchange offer or
otherwise or (iii) grant any proxy with respect to the Owned Shares, deposit the Owned Shares into
a voting trust, enter into a voting agreement with respect to any of the Owned Shares or otherwise
restrict the ability of Shareholder freely to exercise all voting rights with respect thereto. Any
action attempted to be taken in violation of the preceding sentence will be null and void.
Shareholder further agrees to authorize and request Parent and the Company to notify the Company’s
transfer agent that there is a stop transfer order with respect to all of the Owned Shares (other
than in respect of Transfers expressly permitted by this Section 2.3) and that this Agreement
places limits on the voting of the Owned Shares.
Section 2.4. Proxies. Shareholder hereby revokes any and all previous proxies granted
with respect to his Owned Shares. By entering into this Agreement, subject to the last sentence of
this Section 2.4, Shareholder hereby grants a proxy appointing Parent as Shareholder’s
attorney-in-fact and proxy, for and in Shareholder’s name, to be counted as present, vote, express
consent or dissent with respect to his Owned Shares solely on the matters set forth in, and in the
manner contemplated by, Section 2.1. The proxy granted by Shareholder pursuant to this Section 2.4
is, subject to the last sentence of this Section 2.4, irrevocable and is coupled with an interest,
in accordance with Section 33-706(d) of the CBCA, and is granted in order to secure Shareholder’s
performance under this Agreement and also in consideration of Parent entering into this Agreement
and the Merger Agreement. If Shareholder fails for any reason to be counted as present, consent or
vote the Owned Shares in accordance with the requirements of Section 2.1 above (or anticipatorily
breaches such section), then Parent shall have the right to cause to be present, consent or vote
Shareholder’s Owned Shares in accordance with the provisions of Section 2.1. The proxy granted by
Shareholder shall be automatically revoked upon termination of this Agreement in accordance with
its terms.
ARTICLE III. REPRESENTATIONS AND WARRANTIES
Section 3.1. Representations and Warranties of Shareholder. Shareholder represents and
warrants to Parent as of the date of this Agreement, as of the date of any Company Shareholders
Meeting (and as of the date of any adjournment or postponement thereof) and as of the date of the
execution of any written Shareholder consent or any proxy permitted under this Agreement or
consented to by Parent, as follows:
(a) Shareholder has the requisite capacity and authority to execute and deliver this Agreement
and to fulfill and perform his obligations hereunder. This Agreement has been duly and validly
executed and delivered by Shareholder and constitutes a legal, valid and binding agreement of
Shareholder enforceable by Parent against Shareholder in accordance with its terms.
(b) Shareholder is the record and Beneficial Owner, free and clear of any Liens (other than
those arising under this Agreement) of the Owned Shares and, except as provided in this Agreement,
has full and unrestricted power to dispose of and vote all of the Owned Shares without the consent
or approval of, or any other action on the part of any other
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Person, and has not granted any proxy inconsistent with this Agreement that is still effective
or entered into any voting or similar agreement with respect to, the Owned Shares. The Owned
Shares set forth below Shareholder’s name on the signature page hereto constitute all of the
capital stock of the Company that is Beneficially Owned by Shareholder as of the date hereof, and
Shareholder does not have any right to acquire (whether currently, upon lapse of time, following
the satisfaction of any conditions, upon the occurrence of any event or any combination of the
foregoing), any Shares or any securities convertible into Shares (excluding Stock Options, shares
of restricted stock, and restricted stock units).
(c) Other than the filing by Shareholder of any reports with the SEC required by Section 13(d)
or 16(a) of the Exchange Act, none of the execution and delivery of this Agreement by Shareholder,
the consummation by Shareholder of the transactions contemplated hereby or compliance by
Shareholder with any of the provisions hereof (i) requires any consent or other Permit of, or
filing with or notification to, any Governmental Entity or any other Person by Shareholder, (ii)
results in a violation or breach of, or constitutes (with or without notice or lapse of time or
both) a default (or gives rise to any third party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or provisions of any
organizational document or Contract to which Shareholder is a party or by which Shareholder or any
of Shareholder’s properties or assets (including the Owned Shares) may be bound, (iii) violates any
Order or Law applicable to Shareholder or any of Shareholder’s properties or assets (including the
Owned Shares) or (iv) results in a Lien upon any of Shareholder’s properties or assets (including
the Owned Shares).
ARTICLE IV. ADDITIONAL COVENANTS OF THE SHAREHOLDER
Section 4.1. Waiver of Appraisal Rights. Shareholder hereby waives any rights of
appraisal or rights of dissent from the Merger that Shareholder may have.
Section 4.2. Disclosure. Shareholder, severally and not jointly, hereby authorizes
Parent and the Company to publish and disclose in any announcement or disclosure required by the
SEC, including the Proxy Statement and the Schedule 13E-3, Shareholder’s identity and ownership of
the Owned Shares and the nature of Shareholder’s obligation under this Agreement, provided that
Shareholder is provided with a reasonable opportunity to review and comment on such disclosure.
Section 4.3. Non-Interference; Further Assurances. Shareholder agrees that prior to
the termination of this Agreement, Shareholder shall not take any action that would make any
representation or warranty of Shareholder contained herein untrue or incorrect or have the effect
of preventing, impeding, interfering with or adversely affecting the performance by Shareholder of
its obligations under this Agreement. Shareholder agrees, without further consideration, to
execute and deliver such additional documents and to take such further actions as necessary or
reasonably requested by Parent to confirm and assure the rights and obligations set forth in this
Agreement or to consummate the transactions contemplated by this Agreement.
Section 4.4. No Solicitation. Subject to Section 6.18, Shareholder agrees in his
capacity as a shareholder that he shall not, and shall cause his Representatives not to, directly
or indirectly, (i) initiate, solicit or knowingly encourage (including by way of providing
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information) or knowingly facilitate any inquiries, proposals or offers with respect to, or
the making, or the completion of, an Alternative Proposal, (ii) participate or engage in any
discussions or negotiations with, or furnish or disclose any non-public information relating to the
Company or any of its Subsidiaries to, or otherwise knowingly cooperate with or knowingly assist
any Person in connection with an Alternative Proposal, (iii) approve, endorse or recommend any
Alternative Proposal, (iv) enter into any letter of intent, agreement in principle, merger
agreement, acquisition agreement, option agreement or other similar agreement relating to an
Alternative Proposal, or (v) resolve, propose or agree to do any of the foregoing, including any
agreement with respect to Shareholder’s potential investment in connection with any transaction or
resulting entity. If, prior to the Expiration Time, Shareholder receives a proposal with respect
to the sale of Shares in connection with an Alternative Proposal, then Shareholder will promptly
(and in any event within 24 hours) inform the Company and Parent of the identity of the Person
making, and the material terms of, such proposal.
ARTICLE V. TERMINATION
Section 5.1. Termination. This Agreement will terminate without further action at the
Expiration Time.
Section 5.2. Effect of Termination. Upon termination of this Agreement, the rights
and obligations of all the parties will terminate and become void without further action by any
party except for the provisions of Section 5.1, this Section 5.2 and Article VI, which will survive
such termination. For the avoidance of doubt, the termination of this Agreement shall not relieve
any party of liability for any willful breach of this Agreement prior to the time of termination.
ARTICLE VI. GENERAL
Section 6.1. Notices. Any notice, request, instruction or other communication under
this Agreement will be in writing and delivered by hand or overnight courier service or by
facsimile, (i) if to Shareholder, to the address set forth below his name on the signature page
hereto, and (ii) if to Parent, in accordance with Section 8.7 of the Merger Agreement, or to such
other Persons, addresses or facsimile numbers as may be designated in writing by the Person
entitled to receive such communication as provided above. Each such communication will be
effective (A) if delivered by hand or overnight courier service, when such delivery is made at the
address specified in this Section 6.1, or (B) if delivered by facsimile, when such facsimile is
transmitted to the facsimile number specified in this Section 6.1 and appropriate confirmation is
received.
Section 6.2. No Third Party Beneficiaries, Etc. This Agreement is not intended to
confer any rights or remedies upon any Person other than the parties to this Agreement, or to make
Shareholder responsible for any of the Company’s obligations under the Merger Agreement.
Section 6.3. Governing Law. This Agreement will be governed by, and construed in
accordance with, the Laws of the State of Connecticut, without giving effect to any applicable
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principles of conflict of laws that would cause the Laws of another State to otherwise govern
this Agreement.
Section 6.4. Severability. The provisions of this Agreement are severable and the
invalidity or unenforceability of any provision will not affect the validity or enforceability of
the other provisions of this Agreement. If any provision of this Agreement, or the application of
that provision to any Person or any circumstance, is invalid or unenforceable, (i) a suitable and
equitable provision will be substituted for that provision in order to carry out, so far as may be
valid and enforceable, the intent and purpose of the invalid or unenforceable provision and (ii)
the remainder of this Agreement and the application of that provision to other Persons or
circumstances will not be affected by such invalidity or unenforceability, nor will such invalidity
or unenforceability affect the validity or enforceability of that provision, or the application of
that provision, in any other jurisdiction.
Section 6.5. Assignment. Neither this Agreement nor any right, interest or obligation
hereunder may be assigned by any party hereto, in whole or part (whether by operation of Law or
otherwise), without the prior written consent of the other parties hereto and any attempt to do so
will be null and void.
Section 6.6. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and permitted assigns.
Section 6.7. Interpretation. The headings in this Agreement are for reference only
and do not affect the meaning or interpretation of this Agreement. Definitions apply equally to
both the singular and plural forms of the terms defined. Whenever the context may require, any
pronoun includes the corresponding masculine, feminine and neuter forms. All references in this
Agreement to Articles and Sections refer to Articles and Sections of this Agreement unless the
context requires otherwise. The words “include,” “includes” and “including” are not limiting and
will be deemed to be followed by the phrase “without limitation.” The phrases “herein,” “hereof,”
“hereunder” and words of similar import shall be deemed to refer to this Agreement as a whole and
not to any particular provision of this Agreement. The word “or” shall be inclusive and not
exclusive unless the context requires otherwise. Unless the context requires otherwise, any
agreements, documents, instruments or Laws defined or referred to in this Agreement will be deemed
to mean or refer to such agreements, documents, instruments or Laws as from time to time amended,
modified or supplemented, including (i) in the case of agreements, documents or instruments, by
waiver or consent and (ii) in the case of Laws, by succession of comparable successor statutes.
All references in this Agreement to any particular Law will be deemed to refer also to any rules
and regulations promulgated under that Law. References to a Person will refer to its predecessors
and successors and permitted assigns.
Section 6.8. Amendments. This Agreement may not be amended except by written
agreement signed by all of the parties to this Agreement.
Section 6.9. Extension; Waiver. At any time prior to the Expiration Time, Parent, on
the one hand, and Shareholder, on the other hand, may (i) extend the time for the performance of
any of the obligations of the other party, (ii) waive any inaccuracies in the representations and
warranties of the other party contained in this Agreement or in any document delivered under
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this Agreement or (iii) unless prohibited by applicable Laws, waive compliance with any of the
covenants or conditions contained in this Agreement. Any agreement on the part of a party to any
extension or waiver will be valid only if set forth in an instrument in writing signed by such
party. The failure of any party to assert any of its rights under this Agreement or otherwise will
not constitute a waiver of such rights.
Section 6.10. Fees and Expenses. Except as expressly provided in this Agreement, each
party is responsible for its own fees and expenses (including the fees and expenses of financial
consultants, investment bankers, accountants and counsel) in connection with the entry into of this
Agreement and the consummation of the transactions contemplated hereby.
Section 6.11. Entire Agreement. This Agreement constitutes the entire agreement and
supersedes all other prior agreements, understandings, representations and warranties, both written
and oral, among the parties to this Agreement with respect to the subject matter of this Agreement.
Section 6.12. Rules of Construction. The parties to this Agreement have been
represented by counsel during the negotiation and execution of this Agreement and waive the
application of any Laws or rule of construction providing that ambiguities in any agreement or
other document will be construed against the party drafting such agreement or other document.
Section 6.13. Remedies Cumulative. Except as otherwise provided in this Agreement,
any and all remedies expressly conferred upon a party to this Agreement will be cumulative with,
and not exclusive of, any other remedy contained in this Agreement, at law or in equity. The
exercise by a party to this Agreement of any one remedy will not preclude the exercise by it of any
other remedy.
Section 6.14. Counterparts; Effectiveness; Execution. This Agreement may be executed
in any number of counterparts, all of which are one and the same agreement. This Agreement may be
executed by facsimile signature by any party and such signature is deemed binding for all purposes
hereof, without delivery of an original signature being thereafter required.
Section 6.15. Specific Performance. The parties to this Agreement 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 to this Agreement will be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and provisions of this
Agreement in any court of the United States or any state having jurisdiction, this being in
addition to any other remedy to which they are entitled at law or in equity.
Section 6.16. Submission to Jurisdiction. Each of the parties hereto irrevocably
agrees that any legal action or proceeding with respect to this Agreement and the rights and
obligations arising hereunder, or for recognition and enforcement of any judgment in respect of
this Agreement and the rights and obligations arising hereunder brought by the other party hereto
or its successors or assigns shall be brought and determined exclusively in the Delaware Court of
Chancery, or in the event (but only in the event) that such court does not have subject matter
jurisdiction over such action or proceeding, in the United States District Court for the District
of
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Delaware. Each of the parties hereto agrees that mailing of process or other papers in
connection with any such action or proceeding in the manner provided in Section 6.1 or in such
other manner as may be permitted by applicable Laws, will be valid and sufficient service thereof.
Each of the parties hereto hereby irrevocably submits with regard to any such action or proceeding
for itself and in respect of its property, generally and unconditionally, to the personal
jurisdiction of the aforesaid courts and agrees that it will not bring any action relating to this
Agreement or any of the transactions contemplated by this Agreement in any court or tribunal other
than the aforesaid courts. Each of the parties hereto hereby irrevocably waives, and agrees not to
assert, by way of motion, as a defense, counterclaim or otherwise, in any action or proceeding with
respect to this Agreement and the rights and obligations arising hereunder, or for recognition and
enforcement of any judgment in respect of this Agreement and the rights and obligations arising
hereunder (i) any claim that it is not personally subject to the jurisdiction of the above named
courts for any reason other than the failure to serve process in accordance with this Section 6.16,
(ii) any claim that it or its property is exempt or immune from jurisdiction of any such court or
from any legal process commenced in such courts (whether through service of notice, attachment
prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise)
and (iii) to the fullest extent permitted by the applicable Law, any claim that (x) the suit,
action or proceeding in such court is brought in an inconvenient forum, (y) the venue of such suit,
action or proceeding is improper or (z) this Agreement, or the subject matter hereof, may not be
enforced in or by such courts.
Section 6.17. Waiver of Jury Trial. 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 such party irrevocably and unconditionally waives any right it may have
to a trial by jury in respect of any action, suit or other judicial proceeding arising out of or
relating to this Agreement or the transactions contemplated by this Agreement. Each party to this
Agreement certifies and acknowledges that (i) no Representative of any other party has represented,
expressly or otherwise, that such other party would not seek to enforce the foregoing waiver in the
event of action, suit or other judicial proceeding, (ii) such party has considered the implications
of this waiver, (iii) such party makes this waiver voluntarily and (iv) such party has been induced
to enter into this Agreement by, among other things, the mutual waivers and certifications in this
Section 6.17.
Section 6.18. Action in Shareholder Capacity Only. The parties acknowledge that this
Agreement is entered into by Shareholder solely in his capacity as the Beneficial Owner of the
Owned Shares and nothing in this Agreement shall in any way restrict or limit any action taken or
to be taken (or failure to act) by Shareholder in his capacity as a director or officer of the
Company (but not on his own behalf as a shareholder) and the taking of any actions (or failure to
act) in his capacity as an officer or director of the Company will not be deemed to constitute a
breach of this Agreement, regardless of the circumstances related thereto.
[Remainder of page intentionally left blank. Signature Page Follows.]
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IN WITNESS WHEREOF, each party hereto has caused this Agreement to be signed as of the date
first written above.
| MDI HOLDINGS, LLC | ||||||
| By: | /s/ Xxxxxx X. Xxxxxxxxx | |||||
| Name: Xxxxxx X. Xxxxxxxxx | ||||||
| Title: President | ||||||
| SHAREHOLDER | ||||||
| /s/ Xxxxxx X. Xxxxxx | ||||||
| Xxxxxx X. Xxxxxx | ||||||
| Owned Shares: 1,824,516 | ||||||
Address for Notices to Shareholder:
c/o MacDermid, Incorporated
0000 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Fax:
0000 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Fax:
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