Exhibit 10.1
This VOTING AGREEMENT (the "Agreement") is made and entered into as of
the 23rd day of April, 1999, by and among Foilmark, Inc., a Delaware corporation
(the "Company") and such holders of shares of common stock, par value $.01 per
share, of the Company ("Common Stock") identified on SCHEDULE A attached hereto
(collectively, the "Foilmark Stockholders") and the holders of shares of common
stock, par value $.01 per share, of Holopak Technologies, Inc. ("Holopak")
identified on SCHEDULE B attached hereto (collectively, the "Holopak
Stockholders"). The Foilmark Stockholders and the Holopak Stockholders are
collectively hereinafter referred to as the "Shareholders".
W I T N E S S E T H:
WHEREAS, the Company entered into an Agreement and Plan of Merger dated
November 17, 1998, (the "Merger Agreement") which provides for the merger of
Holopak with and into Foilmark Acquisition Corporation, a Delaware corporation
and a wholly-owned subsidiary of Foilmark ("Sub") with Sub as the surviving
corporation (the "Merger"); and
WHEREAS, pursuant to the Merger Agreement, the Merger Consideration to
be received by each Holopak Stockholder at the Effective Time of the Merger
consists of shares of Common Stock and cash; and
WHEREAS, in connection with the effectiveness of the Merger, the
Company and the Shareholders have agreed to provide for the future voting of
shares of Common Stock, solely with respect to the election of directors of the
Company; and
WHEREAS, the initial designees to the Board of Directors of the Company
designated by Bradford Associates as the representative (the "Holopak
Representative") of the Holopak Stockholders (the "Holopak Designees") are
identified on SCHEDULE C attached hereto and the initial designees to the Board
of Directors of the Company designated by Xxxxx X. Xxxxx, Xx. as the
representative (the "Foilmark Representative") of the Foilmark Stockholders (the
"Foilmark Designees") are identified on SCHEDULE D attached hereto.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
VOTING
1.01 Each of the Foilmark Stockholders and the Holopak
Stockholders, respectively, agrees to hold all shares of voting capital stock of
the Company registered in his respective name or beneficially owned by him as of
the date hereof (and any and all other securities of the Company legally or
beneficially acquired by such Stockholder after the date hereof (including
shares of Common Stock acquired in the Merger) (hereinafter collectively
referred to as the "Shares") subject to, and to vote the Shares in accordance
with, the provisions of this Agreement.
1.02 (a) On each occasion at which the holders of voting
capital stock of the Company meet, or act by written consent in lieu of meeting,
for the purpose of electing directors, each Shareholder agrees to vote all
Shares for the election of each Foilmark Designee and each Holopak Designee at
such time as such Designee is up for election. In the event that any of the
Foilmark or the Holopak Designees, as the case may be, ceases to serve as a
director of the Company due to death, resignation or removal of said director,
then the Foilmark Representative or Holopak Representative, as the case may be,
shall nominate an individual to replace said director. The Shareholders agree
that they shall, consistent with and subject to their fiduciary obligations as
directors, vote in their capacity as directors of the Company for such Foilmark
or Holopak Designees, as the case may be.
(b) The Company shall furnish written notice to the Shareholders at
least twenty (20) days prior to any such meeting or proposed action by written
consent in lieu of meeting. The Holopak Representative or Foilmark
Representative, as the case may be, shall furnish written notice to each of the
Shareholders and the Board, no later than fifteen (15) days following receipt of
the Company's notice of any such meeting, or proposed action by written consent
in lieu of meeting, of the name of the Foilmark or Holopak Designees designated
by them to the extent that one or more of the initial Foilmark or Holopak
Designees, as the case may be, is unable to stand for reelection for any reason.
In the absence of such notice, the directors then serving on behalf of and/or
previously nominated by the Foilmark or Holopak Representative, as the case may
be, in accordance with this Section 1.02 shall be deemed to be the Foilmark of
Holopak Representative, as the case may be.
(c) In addition, each of the Shareholders shall vote all of his Shares
on each occasion at which the holders of voting capital stock of the Company
meet, or act by written consent in lieu thereof: (i) to cause the Board of
Directors of the Company (the "Board") to be fixed at ten and to name those
classes consisting of four Class I Directors, three Class II Directors
(consisting of two Holopak Designees and one Foilmark Designee), and three Class
III Directors (consisting of one Holopak Designee and two Foilmark Designees);
(ii) to cause Xxxxxx X. Xxxxx to serve as Chairman of the Board; (iii) to cause
the Board to establish an Executive Committee, which shall consist of Xxxxxx X.
Xxxxx, Xxxxxxx X. Xxxxxxx, Xxxxx X. Xxxxx, Xx. and Xxxxxxx Xxxxxx, of which
Xxxxxx X. Xxxxx shall be the Chairman; (iv) to cause the Board to establish a
Compensation Committee, which shall consist of Xxxxxx X. Xxxxxxx, Xxxxxx
Xxxxxxxx, Xxxxxxx X. Xxxxxxx and Xxxxxx X. Xxxxx, of which Xxxxxx X. Xxxxxxx
shall be the Chairman; and (v) to cause the Board to establish an Audit
Committee, which shall consist of Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxxx, Xxxxx Xxxxx
and Xxxxxx Share, of which Xxxxxxx Xxxxxxx shall be the Chairman.
1.03 Each of the Foilmark Designees and the Holopak Designees
shall serve as directors of the Company shall serve until his successor is
elected and qualified or until his earlier resignation or removal. The
Shareholders shall not take, or support the taking of, any action to remove a
director nominated by a particular person or entity unless such person or entity
has
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requested that such director be removed (in which case the Shareholders shall
cooperate in effecting such removal and electing a replacement).
1.04 Concurrently or forthwith after with the execution of this
Agreement, there shall be imprinted or otherwise placed on certificates
representing the shares of Common Stock held by the Shareholder the following
restrictive legend (the "Legend"):
"The shares represented by this Certificate are subject to the terms
and conditions of a Voting Agreement, dated as of April 23, 1999,
which places certain restrictions on the voting of the shares
represented hereby. Any person accepting any interest in such shares
other than in an open market transaction shall be deemed to agree to
and shall become bound by all the provisions of such Voting Agreement.
A copy of such Voting Agreement will be furnished to the record holder
of this certificate without charge upon written request to Foilmark,
Inc. at its principal place of business."
1.05 The Company agrees that, during the term of this
Agreement, it will not remove, and will not permit to be removed (upon
registration of transfer, reissuance of otherwise), the Legend from any such
certificate and will place or cause to be placed the Legend on any new
certificate issued to represent Shares theretofore represented by a certificate
carrying the Legend; provided, however, in the event that any Shares are sold or
otherwise transferred (a) in "brokers' transactions" or in "transactions
directly with a market maker" (as those terms are used in Rule 144 under the
Securities Act of 1933, as amended (the "1933 Act")), (b) pursuant to an
effective registration under the 1933 Act, or (c) to an unaffiliated third party
in an arm's length transaction (collectively the transactions referred to in
clauses (a), (b) and (c) being hereinafter referred to as "Bona Fide Sales"),
certificates for Shares representing the Shares so sold shall not bear the
Legend, and the Company shall give appropriate direction to the Company's
transfer agent with respect to removal of said Legend in such case.
1.06 The provisions of this Agreement shall be binding upon
the successors in interest to any of the Shares. Except as otherwise provided in
Section 1.05 hereof, the Company shall not permit the transfer of any of the
Shares on its books or issue a new certificate representing any of the Shares
unless and until the person to whom such security is to be transferred shall
have executed a written agreement, substantially in the form of this agreement,
pursuant to which such person becomes a party to this Agreement and agrees to be
bound by all the provisions hereof as if such person were a Shareholder.
1.07 Except as provided by this Agreement, each Shareholder
shall exercise the full rights of a stockholder with respect to the Shares.
1.08 Should the Foilmark Representative become unable to serve
in such capacity due to death or mental incapacity, the remaining Foilmark
Designees shall, by majority vote, elect a replacement Foilmark Representative.
Should the Holopak Representative become unable to
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serve in such capacity for any reason, the General Partner of Bradford Venture
Partners, L.P. shall designate a replacement Holopak Representative.
ARTICLE II
EFFECT; TERMINATION
2.01 This Agreement shall commence on the date first above written and
shall terminate in its entirety on the earlier of
(a) the fifth anniversary of the date hereof;
(b) the date on which either the Foilmark Stockholders as a
group or the Holopak Stockholders as a group own less than five percent (5%) of
the outstanding shares of Common Stock; or
(c) the date as of which the parties hereto terminate this
Agreement by written consent of all parties hereto.
The foregoing notwithstanding, this Agreement shall not apply to and be of no
further force and effect as to any Shares which are sold or otherwise
transferred in a Bona Fide Sale.
ARTICLE III
MISCELLANEOUS
3.01 Each Shareholder represents and warrants that (a) he now owns the
Shares, free and clear of liens or encumbrances, and has not, prior to the date
of this Agreement, executed or delivered any proxy or entered into any other
voting agreement or similar arrangement other than one which has expired or
terminated prior to the date hereof, and (b) such Shareholder has full power and
capacity to execute, deliver and perform this Agreement, which has been duly
executed and delivered by, and evidences the valid and binding obligation of,
such Shareholder enforceable in accordance with its terms.
3.02 If and whenever the Shares are sold, the Shareholder or the
personal representative of the Shareholder shall do all things and execute and
deliver all documents and make all transfers and cause any transferee of the
Shares to do all things and execute and deliver all documents, as may be
necessary to consummate such sale consistent with this Agreement.
3.03 The parties hereto hereby declare that it is impossible to measure
in money the damages which will accrue to a party hereto or to their heirs,
personal representatives, or assigns by reason of a failure to perform any of
the obligations under this Agreement and agree that the terms of this Agreement
shall be specifically enforceable. If any party hereto or his heirs, personal
representatives, or assigns institutes any action or proceeding to specifically
enforce the provisions hereof, any person against whom such action or proceeding
is brought hereby waives
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the claim or defense therein that such party or such personal representative has
an adequate remedy at law, and such person shall not offer in any such action or
proceeding the claim or defense that such remedy at law exists.
3.04 This Agreement, and the rights of the parties hereto, shall be
governed by and construed in accordance with the laws of the State of Delaware.
3.05 This Agreement may be amended only by an instrument in writing
signed by all parties hereto.
3.06 If any provision of this Agreement is held to be invalid or
unenforceable, the validity and enforceability of the remaining provisions of
this Agreement shall not be affected thereby.
3.07 This Agreement shall be binding upon the parties hereto and,
except as otherwise provided in Section 1.05 hereof, this Agreement may not be
assigned.
3.08 In the event that, subsequent to the date of this Agreement, any
shares or other securities (other than any shares or securities of another
corporation issued to the Company's stockholders pursuant to a plan of merger or
consolidation) are issued on, or in exchange for, any of the Shares held by the
Shareholders by reason of any stock dividend, stock split, consolidation of
shares, reclassification or consolidation involving the Company, such shares or
securities shall be deemed to be Shares for purposes of this Agreement.
3.09 This Agreement may be executed in one or more counterparts, each
of which will be deemed an original but all of which together shall constitute
one and the same agreement.
3.10 No waivers of any breach of this Agreement extended by any party
hereto to any other party shall be construed as a waiver of any rights or
remedies of any other party hereto or with respect to any subsequent breach.
3.11 All capitalized terms not defined herein shall have the meanings
designated in the Merger Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
FOILMARK, INC.
By: /s/
------------------------------
Xxxxx X. Xxxxx, Xx.
Chief Executive Officer
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HOLOPAK STOCKHOLDERS:
/s/
--------------------------
Xxxxxx X. Xxxxx
OVERSEAS PRIVATE INVESTOR BRADFORD VENTURE PARTNERS, L.P.
PARTNERS
By: Xxxxxx X. Xxxxx By: Xxxxxx X. Xxxxx
-------------------------- ----------------------------
/s/ /s/
-------------------------- -------------------------------
Xxxxx X. Xxxxxx Xxxxxx X. Share
/s/ /s/
-------------------------- -------------------------------
Xxxxx Xxxxx Xxxxxxx X. Xxxxxxx
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FOILMARK STOCKHOLDERS:
/s/ /s/
---------------------------- -------------------------------
Xxxxx X. Xxxxx, Xx. Xxxxxx X. Xxxxxxx
/s/ /s/
---------------------------- -------------------------------
Xxxxxx X. Xxxxx Xxxxx Xxxxx
/s/ /s/
---------------------------- -------------------------------
Xxxxxx Xxxxxxxx Xxxxxxx Xxxxxx
/s/ /s/
---------------------------- ------------------------------
Xxxxxxx Xxxxx Xxxxxxx Xxxxxx
/s/
----------------------------
Xxxxxxx Xxxxxxx
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SCHEDULE A
FOILMARK STOCKHOLDERS
Prior to Effectiveness After Effectiveness
of Merger of Merger
---------------------- -------------------
No. of Percentage No. of Percentage
Holder Shares (1) Interest Shares (1) Interest
------ ---------- -------- ---------- --------
Xxxxxx X. Xxxxx 527,477 12.6% 507,477 6.4%
0000 Xxx Xxxx Xxxx Xxxx
Xxxxx Xxxxx Xxxxx, XX 00000
Xxxxx X. Xxxxx, Xx. 490,659 11.7% 505,649 6.4%
00 Xxxxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
Xxxxxxx Xxxxx 244,696 5.9% 244,696 3.1%
00 Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Xxxxx Xxxxx 212,409 5.1% 216,409 2.7%
00 Xxxxxx Xxxxx
Xxxx Xxxxxxxxx, XX 00000
Xxxxxx Xxxxxxxx 158,834 3.8% 163,334 2.1%
0000 Xxxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000
Xxxxxxx Xxxxxx 10,000 * 10,000 *
WPI Group, Inc.
0000 Xxx Xxxxxx
Xxxxxxxxxx, XX 00000
Xxxxxx Xxxxxxx 5,000 * 5,000 *
00 Xxxxxxxxx Xxxx
Xxxxxx, XX 00000
Xxxxxxx Xxxxxx 131,022 3.1% 131,022 1.7%
00 Xxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
------------------------
(1) Includes shares underlying stock options
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SCHEDULE B
HOLOPAK STOCKHOLDERS
Prior to Effectiveness of Merger After Effectiveness of Merger
-------------------------------- -----------------------------
No. of Percentage No. of Percentage
Holder Shares (1) Interest Shares (1) Interest
------ ---------- -------- ---------- --------
Xxxxxx X. Xxxxx 17,880 * 18,527 *
c/o Bradford Ventures, Ltd.
Xxx Xxxxxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Bradford Venture Partners, L.P. 753,086 22.5% 835,925 10.6%
00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Overseas Private Investor Partners 753,086 22.5% 835,925 10.6%
Xxxxxxxxx Xxxxx
Xxxxxx Xxxxxx
Xxxxxxxx 0-00 Xxxxxxx
Xxxxx X. Xxxxxx 66,667 2.0% 131,000 1.7%
0000 Xxxxxxx Xxxx
Xxxxxx, XX 00000
Xxxxxx X. Share 2,000 * 2,220 *
000 Xxxxxxxxx Xxxxxx
Xxxxx X0
Xxxxxxx Xxxx, XX 00000
Xxxxx Xxxxx 8,000 * 8,880 *
c/o DelaFoil, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx 17,880 * 18,527 *
000 Xxx Xxxx
Xxxxxxxxx, XX 00000
---------------
*Less than one percent.
(1) Includes shares underlying stock options
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SCHEDULE C
HOLOPAK DESIGNEES
Director Class Term Ending
-------- ----- -----------
Xxxxxx X. Xxxxx I 2001
Xxxxx X. Xxxxxx XX 2000
Xxxxxx X. Share III 1999
Xxxxx Xxxxx I 2001
Xxxxxxx X. Xxxxxxx XX 2000
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SCHEDULE D
FOILMARK DESIGNEES
Director Class Term Ending
-------- ----- -----------
Xxxxx X. Xxxxx, Xx. I 2001
Xxxxxxx Xxxxxxx III 1999
Xxxxxx X. Xxxxxxx I 2001
Xxxxxx Xxxxxxxx XX 2000
Xxxxxxx Xxxxxx III 1999
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