1
EXHIBIT III
POST-MERGER VOTING AGREEMENT
VOTING AGREEMENT dated as of August 18, 1999 (the "Agreement") by and
among MS Acquisition Limited, a Texas limited partnership, (the "Nominating
Stockholder") Xxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxx, Xxxx X. Xxxxxx, Xxxxxxx X.
Xxxx (together with the Nominating Stockholder, the "Richmont Stockholders"),
Monroe & Company, LLC, a Delaware limited liability company and JLM Management
Company, LLC, a Delaware limited liability company (together with Monroe &
Company, LLC, "Monroe"). The Richmont Stockholders and Monroe collectively
shall be referred to herein as the "Stockholders."
WHEREAS, it is contemplated that Richmont Marketing Specialists Inc.,
a Delaware corporation ("Richmont"), will merge with and into Xxxxxxx American
Corporation, a Delaware corporation ("Xxxxxxx") pursuant to an Agreement and
Plan of Merger dated as of the date hereof (the "Merger Agreement," and such
merger, the "Merger");
WHEREAS, the Richmont Stockholders own of record all of the issued and
outstanding shares of common stock, par value $.01 per share, of Richmont,
which in connection with the Merger will be converted into an aggregate of up
to 6,705,551 shares of common stock, par value $.01 per share, of Xxxxxxx
("Xxxxxxx Common Stock");
WHEREAS, Monroe has the right to vote an aggregate of 853,754 shares
of Xxxxxxx Common Stock and 223,800 shares of restricted Xxxxxxx Common Stock;
WHEREAS, the execution and delivery of this Agreement is a condition
to the consummation of the Merger.
NOW, THEREFORE, the parties hereto agree as follows:
1. Voting Agreement. Following the consummation of the Merger, at any
time that nominees for the election to the Board of Directors of Xxxxxxx are
submitted to the stockholders of Xxxxxxx, or a proposal to remove any incumbent
member of the Board of Directors of Xxxxxxx is submitted to such stockholders,
the parties hereto agree to vote, or cause to be voted, all Voting Securities
(defined below) then held by such party, whether beneficially or of record, or
any Voting Securities over which such party exercises voting control, in favor
of up to five nominees designated in writing by the Nominating Stockholders.
For the purpose of this agreement, "Voting Securities" shall mean any and all
shares of capital stock of Xxxxxxx, of any class or series, which shall have
the right at any time to vote in the election of Xxxxxxx'x directors, including
without limitation shares of Xxxxxxx Common Stock.
2. Designation of Nominees. The Nominating Stockholder hereby
designates the following individuals as nominees for election to the Board of
Directors of Xxxxxxx: Xxxx X. Xxxxxx, Xxxx X. Xxxxxx, Xxxxxxx X. Xxxx, Xxxxxx
X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxx.
2
In the event that any of the foregoing at any time are unable to serve out
their terms, resign from the Board of Directors of Xxxxxxx or decline to be
nominated for election or reelection, then the Nominating Stockholders shall
have the right to designate in writing a replacement nominee; provided,
however, that such replacement nominee shall be reasonably satisfactory to
Monroe.
3. Representations and Warranties of the Stockholders. As of the date
hereof, each Stockholder represents and warrants to the other Stockholders as
follows:
(a) Ownership of Securities. The Stockholder is the record
and beneficial owner of, or exercises voting control of, the number of shares
of Voting Securities of Xxxxxxx set forth on the signature page to this
Agreement (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 and the sole power of exercise or
conversion, in each case with respect to all of the Existing Securities. As of
the date hereof, the Stockholder will have sole voting power and sole power to
issue instructions with respect to the voting of all of the Existing
Securities, sole power of disposition and the sole power of exercise or
conversion, in each case with respect to all of the Existing Securities.
(b) Power; Binding Agreement. The Stockholder has full power
and authority to enter into and perform all of the Stockholder's obligations
under this Agreement. If Stockholder is an entity, the execution by Stockholder
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
Stockholder and no other action on the part of Stockholder is required in
connection therewith. This Agreement has been duly and validly executed and
delivered by the Stockholder and constitutes a valid and binding agreement of
the Stockholder, enforceable against the Stockholder 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 Stockholder
and the consummation by the Stockholder of the transactions contemplated
hereby, other than filings which may be required pursuant to the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder, and neither the execution and delivery of this Agreement by the
Stockholder nor the consummation by the Stockholder of the transactions
contemplated hereby nor compliance by the Stockholder with any of the
provisions hereof shall conflict with or result in any breach of any applicable
organizational documents of Xxxxxxx applicable to the Stockholder or, if
applicable, any organizational documents of the Stockholder (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 Stockholder is a party or by which the
Stockholder's properties or assets
2
3
may be bound or violate any order, writ, injunction, decree, judgment, order,
statute, rule or regulation applicable to the Stockholder or any of the
Stockholder's properties or assets.
4. Assignment; Benefits. This Agreement may not be assigned by any
party hereto without the prior written consent of each of the other parties.
This Agreement shall be binding upon, and shall inure to the benefit of, each
of the signatories hereto and their respective successors and permitted
assigns.
5. 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.
6. 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.
7. 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 any party hereto, except by an instrument
in writing signed by or on behalf of the party granting such waiver.
8. Governing Law. 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.
9. 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.
10. Termination. This Agreement shall commence on the date hereof and
shall terminate upon the earliest to occur of: (i) the date on which the
Nominating Stockholder and Messrs. Xxxxxxxx, Xxxxxx and Xxxxxx cease to own in
the aggregate at least 35% of the total outstanding shares of Voting Securities
of Xxxxxxx, or (ii) the date on which the Stockholders cease to own, or have
the right to exercise voting control over, shares of Voting Securities of
Xxxxxxx representing more than 50% of the total voting power of all outstanding
Voting Securities of Xxxxxxx.
3
4
[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.
MS ACQUISITION LIMITED
By: MSSC Acquisition Corporation,
its General Partner
By:/s/ Xxxx X. Xxxxxx
----------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
Existing Securities:
--------------------
Class: Common
Number of Shares: 4,023,330
Address:
--------
00000 Xxxxx Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
S-1
5
[VOTING AGREEMENT SIGNATURE PAGE]
/s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxxx
Existing Securities:
--------------------
Class: Common
Number of Shares: 1,259,017
Address:
--------
0000 Xxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
/s/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
Existing Securities:
--------------------
Class: Common
Number of Shares: 301,721
Address:
--------
0000 Xxxx Xxxxx Xxxxx
Xxxxx, Xxxxx 00000
/s/ Xxxx X. Xxxxxx
----------------------------------
Xxxx X. Xxxxxx
Existing Securities:
--------------------
Class: Common
Number of Shares: 301,721
Address:
--------
00 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxx 00000
S-2
6
[VOTING AGREEMENT SIGNATURE PAGE]
/s/ Xxxxxxx X. Xxxx
----------------------------------
Xxxxxxx X. Xxxx
Existing Securities:
--------------------
Class: Common
Number of Shares: 819,759
Address:
--------
0000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
S-3
7
[VOTING AGREEMENT SIGNATURE PAGE]
MONROE & COMPANY, LLC
By:/s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title:
Existing Securities:
-------------------
Class: Common Stock/ Restr. ComStk
---------------------------
Number of Shares: 415,210/ 11,900
----------------
Address:
--------
0 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
JLM MANAGEMENT COMPANY, LLC
By:/s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title:
Existing Securities:
--------------------
Class: Common Stock/ Restr. ComStk
---------------------------
Number of Shares: 438,544/ 11,900
-----------------
Address:
--------
0 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
S-4
