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EXHIBIT 9.1
VOTING AGREEMENT FOR RMSI STOCKHOLDERS
VOTING AGREEMENT dated as of April 28, 1999 (the "Agreement") between
Xxxxxxx American Corporation, a Delaware corporation ("Xxxxxxx") each of MS
Acquisition Limited, a Texas limited partnership, Xxxxxx X. Xxxxxxxx, Xxxxx X.
Xxxxxx, Xxxx X. Xxxxxx and Xxxxxxx X. Xxxx (collectively, the "Holders").
Richmont Marketing Specialists Inc., a Delaware corporation (the
"Company"), Xxxxxxx and the Holders, propose to enter into an Agreement and Plan
of Merger dated as of April 28, 1999 (the "Merger Agreement"), pursuant to which
the Company would be merged with and into Xxxxxxx (the "Merger"), and each
outstanding share of capital stock of the Company would be converted into shares
of common stock, par value $.01 per share, of Xxxxxxx ("Xxxxxxx Common Stock");
As a condition of its entering into the Merger Agreement, Xxxxxxx has
requested the Holders to agree, and the Holders have agreed, to enter into this
Agreement; and
NOW, THEREFORE, the parties hereto agree as follows:
1. Representations and Warranties of the Holders. Each Holder
represents and warrants to Xxxxxxx as follows:
(a) Ownership of Securities. The Holder is the record and
(except, in the case of Xx. Xxxxxx and Xx. Xxxxxx, for any interest of the
spouses of such Holders arising under applicable community property laws)
beneficial owner of the number of shares of Company Capital Stock set forth on
the signature page to this Agreement (the "Existing Securities," and, together
with any shares of Company Capital Stock or other securities of the Company
hereafter acquired by the Holder, the "Subject Securities"). Other than as
disclosed in the RMSI Disclosure Letter (as such term is defined in the Merger
Agreement), the Holder does not own any capital stock or other securities of the
Company (including any options, warrants, rights, commitments, preemptive right
or agreements of any kind for the issuance or sale of, or outstanding securities
convertible into any shares of capital stock, of any class, of the Company, or
outstanding warrants, options or other rights to acquire any such convertible
securities or stock appreciation rights or other instrument whose value is
derived from the Company Capital Stock) on the date of this Agreement other than
the Existing Securities. The Holder has sole voting power and sole power to
issue instructions with respect to the voting of the Existing Securities, sole
power of disposition, sole power of exercise or conversion and the sole power to
demand appraisal rights, in each case with respect to all of the Existing
Securities. On the date of the special meeting of stockholders of the Company
or, if applicable, on the effective date of the written consent in lieu of a
meeting, at which or
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pursuant to which the Merger and the Merger Agreement are to be considered, will
have sole voting power and sole power to issue instructions with respect to the
voting of all of the Subject Securities, sole power of disposition, sole power
of exercise or conversion and the sole power to demand appraisal rights, in each
case with respect to all of the Subject Securities.
(b) Power; Binding Agreement. The Holder has full power and
authority to enter into and perform all of the Holder's obligations under this
Agreement. If Holder is an entity, the execution by Holder of this Agreement and
the performance of its obligations hereunder have been duly authorized by all
necessary corporate or partnership action on the part of Holder and no other
action on the part of Holder is required in connection therewith. This Agreement
has been duly and validly executed and delivered by the Holder and constitutes a
valid and binding agreement of the Holder, enforceable against the Holder in
accordance with its terms.
(c) No Conflicts. 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 the Holder and the
consummation by the Holder of the transactions contemplated hereby and neither
the execution and delivery of this Agreement by the Holder nor the consummation
by the Holder of the transactions contemplated hereby nor compliance by the
Holder with any of the provisions hereof shall conflict with or result in any
breach of any applicable organizational documents of the Company applicable to
the Holder or, if applicable, any organizational documents of the Holder
(including without limitation any charter documents or partnership agreement),
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 the Holder is a party or by which
the Holder's properties or assets may be bound or violate any order, writ,
injunction, decree, judgment, order, statute, rule or regulation applicable to
the Holder or any of the Holder's properties or assets. The Holder expressly
waives any rights or conflicts under the Stockholders Agreement by and among the
Holders and Marketing Specialists Sales Corporation dated as of October 7, 1997
which may arise by the execution of this Agreement by the Holder or any other
stockholder of the Company and hereby acknowledges and consents in all respects
to the execution of this Agreement by all such stockholders.
(d) No Liens. The Existing Securities are now and, at all
times during the term hereof, the Subject Securities will be held by the Holder,
or by a nominee or custodian for the benefit of such Holder, free and clear of
all liens, claims, security interests, proxies, voting trusts or agreements,
understandings or arrangements or any other encumbrances whatsoever, except for
any encumbrances arising hereunder and that certain Amended and Restated Warrant
Agreement among Xxxxxxx X. Xxxxxxxx and certain stockholders of the Company.
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2. Agreement to Vote Shares. At every meeting of the stockholders of
the Company called with respect to any of the following, and at every
postponement or adjournment thereof, and on every action or approval by written
consent of the stockholders of the Company with respect to any of the following,
each Holder agrees that it shall vote all of the Subject Securities that it owns
beneficially and of record on the record date of any such vote: (i) in favor of
the Merger, the execution and delivery of the Merger Agreement and the approval
of the terms thereof and each of the other transactions contemplated by the
Merger Agreement and (ii) 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 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 (it being understood that
the nomination and/or election of the Independent Director (as defined in the
Merger Agreement) to the Board of Directors of the Company prior to the
consummation of the Merger will not violate this clause); (3) (a) any change in
the majority of the board of directors of the Company or any of its
subsidiaries; (b) any material change in the present capitalization of the
Company or any of its subsidiaries or any amendment of the Certificate of
Incorporation or similar governing document of the Company or any of its
subsidiaries; (c) any other material change in the corporate structure or
business of the Company or any of its subsidiaries; or (d) any other action,
which, in the case of each of the matters referred to in clauses (a), (b), (c)
or (d) above, is intended, or could reasonably be expected, to impede, interfere
with, delay, postpone, discourage or materially adversely affect the
contemplated economic benefits to Xxxxxxx of the Merger or the transactions
contemplated by the Merger Agreement or this Agreement.
3. IRREVOCABLE PROXY. EACH OF THE HOLDERS HEREBY GRANTS TO, AND
APPOINTS XXXXXXX AND THE CHIEF EXECUTIVE OFFICER OF XXXXXXX AND THE CHIEF
FINANCIAL OFFICER OF XXXXXXX, IN THEIR RESPECTIVE CAPACITIES AS OFFICERS OF
XXXXXXX, AND ANY INDIVIDUAL WHO SHALL HEREAFTER SUCCEED TO ANY SUCH OFFICE OF
XXXXXXX, AND ANY OTHER DESIGNEE OF XXXXXXX, EACH OF THEM INDIVIDUALLY, THE
HOLDER'S PROXY AND ATTORNEY-IN-FACT (WITH FULL POWER OF SUBSTITUTION) TO VOTE OR
ACT BY WRITTEN CONSENT WITH RESPECT TO THE HOLDER'S SUBJECT SECURITIES IN
ACCORDANCE WITH SECTION 2 HEREOF. THIS PROXY IS COUPLED WITH AN INTEREST AND
SHALL BE IRREVOCABLE, AND EACH HOLDER 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 THE
SUBJECT SECURITIES.
4. Representations and Warranties of Xxxxxxx.
(a) Power; Binding Agreement. Xxxxxxx has full corporate power
and authority to enter into and perform all of its obligations under this
Agreement. The execution
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by Xxxxxxx of this Agreement and the performance of its obligations hereunder
have been duly authorized by all necessary corporate action on the part of
Xxxxxxx and no other action on the part of Xxxxxxx is required in connection
therewith. This Agreement has been duly and validly executed and delivered by
Xxxxxxx and constitutes a valid and binding agreement of Xxxxxxx, enforceable
against Xxxxxxx in accordance with its terms.
(b) No Conflicts. 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 Xxxxxxx and the
consummation by Xxxxxxx of the transactions contemplated hereby and neither the
execution and delivery of this Agreement by Xxxxxxx nor the consummation by
Xxxxxxx of the transactions contemplated hereby nor compliance by Xxxxxxx with
any of the provisions hereof shall conflict with or result in any breach of any
organizational documents applicable to Xxxxxxx or 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 Xxxxxxx is a party or by which Xxxxxxx'x
properties or assets may be bound or violate any order, writ, injunction,
decree, judgment, order, statute, rule or regulation applicable to Xxxxxxx or
any of Xxxxxxx'x properties or assets.
5. Covenants of the Holder. Each of the Holders hereby agree and
covenant that:
(a) Restriction on Transfer, Proxies and Noninterference. The
Holder shall not, directly or indirectly: (i) except pursuant to the terms of
the Merger Agreement offer for sale, sell, transfer, tender, pledge, encumber,
assign or otherwise dispose of, or enter into any contract, option or other
arrangement or understanding with respect to or consent to the offer for sale,
sale, transfer, tender, pledge, encumbrance, assignment or other disposition of,
any or all of the Subject Securities; (ii) except as contemplated by this
Agreement and the Merger Agreement, grant any proxies or powers of attorney,
deposit any such Subject Securities into a voting trust or enter into a voting
agreement with respect to any of the Subject Securities; or (iii) take any
action that would make any representation or warranty contained herein untrue or
incorrect or have the effect of preventing, restricting or disabling such Holder
from performing its obligations under this Agreement.
(b) Waiver of Appraisal Rights. Each of the Holders hereby
irrevocably waives any appraisal rights that he, she, or it may have, including,
without limitation, under Section 262 of the DGCL, as amended, with respect to
the Merger or any of the transactions contemplated in the Merger Agreement.
6. Assignment; Benefits. The rights (but not the obligations) of
Xxxxxxx hereunder may be assigned, in whole or in part, to any direct
wholly-owned subsidiary of Xxxxxxx, to the extent and for so long as it remains
a direct wholly-owned subsidiary of Xxxxxxx. Other than as permitted in the
preceding sentence, this Agreement may not be assigned by any party
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hereto without the prior written consent of the other party. This Agreement
shall be binding upon, and shall inure to the benefit of, the Holder, Xxxxxxx
and their respective successors and permitted assigns.
7. Notices. Any notice required to be given hereunder shall be in
writing and shall be sent by facsimile transmission (confirmed by any of the
methods that follow), courier service (with proof of service), hand delivery or
certified or registered mail (return receipt requested and first-class postage
prepaid) to the address of such party set forth on the signature pages hereto or
to such other address as any party shall specify by written notice so given, and
such notice shall be deemed to have been delivered as of the date so delivered.
8. Specific Performance. The parties hereto agree that irreparable harm
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with its 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 hereof in any court of the United States or any state
thereof having jurisdiction, this being in addition to any other remedy to which
they are entitled at law or in equity.
9. Amendment. This Agreement may not be amended or modified, except by
an instrument in writing signed by or on behalf of each of the parties hereto.
This Agreement may not be waived by either party hereto, except by an instrument
in writing signed by or on behalf of the party granting such waiver.
10. Governing Law; Jurisdiction and Venue. This Agreement shall be
governed by, construed and enforced in accordance with the laws of the State of
Delaware, without regard to its rules regarding conflict of laws. The parties
hereto hereby irrevocably and unconditionally consent to and submit to the
exclusive jurisdiction of the courts of the State of Delaware for any actions,
suits or proceedings arising out of or relating to this Agreement, the
transactions contemplated hereby or any document referred to herein (and the
parties agree not to commence any action, suit or proceeding related thereto
except in such courts), and further agree that service of any process, summons,
notice or document by U.S. registered mail to the respective addresses set forth
on the signature pages hereto shall be effective service of process for any such
action, suit or proceeding brought against any party in any such court. The
parties irrevocably and unconditionally waive any objection to the laying of
venue of any action, suit or proceeding arising out of this Agreement or the
transactions contemplated hereby, in the courts of the State of Delaware or the
United States of America located in the State of Delaware, and hereby further
irrevocably and unconditionally waive and agree not to plead or claim in any
such court that any such action, suit or proceeding brought in any such court
has been brought in any inconvenient forum.
11. 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 agreement.
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12. Defined Terms. Terms used herein but not otherwise defined shall
have the meanings set forth in the Merger Agreement.
13. Termination. This Agreement shall terminate upon the earlier of (i)
the consummation of the Merger or (ii) the termination of the Merger Agreement
pursuant to its terms. Upon any termination of this Agreement, this Agreement
shall thereupon become void and of no further force and effect, and there shall
be no liability in respect of this Agreement or of any transactions contemplated
hereby or by the Merger Agreement on the part of any party hereto or any of its
directors, officers, partners, stockholders, employees, agents, advisors,
representatives or affiliates; provided, however, that nothing herein shall
relieve any party from any liability for such party's willful breach of this
Agreement; and provided further that nothing herein shall limit, restrict,
impair, amend or otherwise modify the rights, remedies, obligations or
liabilities of any person under any other contract or agreement, including,
without limitation, the Merger Agreement.
[Remainder of this Page Intentionally Left Blank]
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[VOTING AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, this Agreement has been executed by or on behalf of
each of the parties hereto, all as of the date first above written above.
XXXXXXX AMERICAN CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
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Name:Xxxxxx X.Xxxxxxx
Title:President
STOCKHOLDERS:
MS ACQUISITION LIMITED
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: Vice President
Existing Securities:
Class:
-------------------------------
Number of Shares:
--------------------
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[VOTING AGREEMENT SIGNATURE PAGE]
/s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxxx
Existing Securities:
Class:
-------------------------------
Number of Shares:
--------------------
/s/ Xxxxx X. Xxxxxx
-----------------------------------------
Xxxxx X. Xxxxxx
Existing Securities:
Class:
-------------------------------
Number of Shares:
--------------------
/s/ Xxxx X. Xxxxxx
-----------------------------------------
Xxxx X. Xxxxxx
Existing Securities:
Class:
-------------------------------
Number of Shares:
--------------------
S-2
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[VOTING AGREEMENT SIGNATURE PAGE]
/s/ Xxxxxxx X. Xxxx
-----------------------------------------
Xxxxxxx X. Xxxx
Existing Securities:
Class:
-------------------------------
Number of Shares:
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