VOTING AGREEMENT AND IRREVOCABLE PROXY
VOTING
AGREEMENT AND IRREVOCABLE PROXY
This
Voting Agreement and Irrevocable Proxy dated as of December 26, 2006 (this
“Agreement”)
is
among each of the individuals or entities listed on a signature page hereto
(each, a “Shareholder”)
and
Cenveo, Inc., a Colorado corporation (“Parent”).
Capitalized terms used but not defined herein have the meanings assigned to
them
in the Agreement and Plan of Merger dated as of the date of this Agreement
(the
“Merger
Agreement”)
among
Parent, Mouse Acquisition
Corp., a Virginia corporation and an indirect wholly owned subsidiary of Parent
(“Merger
Sub”),
and Cadmus Communications Corporation, a Virginia corporation (the “Company”).
Each
Shareholder is a principal shareholder or director or executive officer of
the
Company and owns the number of shares of Company Common Stock set forth next
to
his, her or its name on Schedule
A
(the
“Schedule
A Shares”)
and the
securities exercisable or exchangeable for, or convertible into, Company Common
Stock set forth next to his, her or its name on Schedule A
(together with the Schedule A Shares, the “Schedule A
Securities”).
Concurrently
with the execution and delivery of this Agreement, Parent, Merger Sub and the
Company are entering into the Merger Agreement, which provides for, among other
things, the merger of Merger Sub with and into the Company upon the terms and
subject to the conditions set forth therein.
As
a
condition to Parent’s willingness to enter into the Merger Agreement, Parent has
required each Shareholder to enter into this Agreement.
In
consideration of the foregoing and the mutual covenants, representations,
warranties and agreements set forth herein, and intending to be legally bound,
the parties agree as follows:
Section
1. Covenants
of the Shareholders.
(a) During
the period beginning on the date of this Agreement and ending on the earlier
of
(x) the Effective Time and (y) the termination of the Merger Agreement in
accordance with its terms (the “Agreement
Period”),
each
Shareholder hereby agrees to:
(i) be
present, in person or represented by proxy, at each meeting (whether annual
or
special and whether or not an adjourned or postponed meeting) of the
shareholders of the Company, however called, so that all of such Shareholder’s
Schedule A Shares and all of the other shares of Company Common Stock and other
shares of capital stock of the Company that such Shareholder becomes entitled
to
vote after the date of this Agreement (together with the Schedule A Shares,
the “Shares”)
may be
counted for purposes of determining the presence of a quorum at such
meeting;
(ii) at
each
such meeting, and at any adjournment or postponement thereof, vote the Shares
to: (A) approve and adopt the Merger Agreement and all agreements related to
the
Merger and any action required in furtherance thereof; and (B) without
limitation of the preceding clause (A), approve any proposal to adjourn or
postpone
the Company Shareholders Meeting to a later date if there are not sufficient
votes for approval and adoption of the Merger Agreement on the date on which
the
Company Shareholders Meeting is held; and
(iii) at
each
such meeting, and at any adjournment or postponement thereof, vote against:
(A)
any action or agreement that would reasonably be expected to frustrate the
purposes of, impede, hinder, interfere with, or prevent or delay the
consummation of the transactions contemplated by the Merger Agreement and
(B) any Acquisition Proposal (other than the Merger) and any action
required in furtherance thereof.
(b) During
the Agreement Period, each Shareholder will not, directly or indirectly: (i)
solicit or initiate the making of, or take any other action to knowingly
facilitate any inquiries or the making of any proposal that constitutes or
may
reasonably be expected to lead to, any Acquisition Proposal; (ii) participate
in any way in discussions or negotiations with, or furnish or disclose any
information to, any Person (other than Parent or any of its Representatives)
in
connection with any Acquisition Proposal;
or
(iii) publicly announce that he or she is considering approving or recommending
any Acquisition Proposal. Each Shareholder agrees to notify Parent promptly
(but
in no event later than one Business Day) after receipt by such Shareholder
of
any Acquisition Proposal or of any request for information relating to the
Company or any of its Subsidiaries or for access to the business, properties,
assets, books or records of the Company or any of its Subsidiaries by any Person
that such Shareholder reasonably believes is seeking to make, or has made,
an
Acquisition Proposal. Notwithstanding anything in this Section 1(b) to the
contrary, in the event that the Board of Directors of the Company is permitted
to engage in negotiations or discussions with any Person who made an unsolicited
bona fide
written
Acquisition Proposal in accordance with Section 5.5 of the Merger Agreement,
each Shareholder shall be permitted, at the request of the Board of Directors
of
the Company, to respond to inquiries from, and discuss such Acquisition Proposal
with, the Board of Directors of the Company. This Section 1(b) shall not be
construed to limit acts taken by any Shareholder who is an individual in his
or
her capacity as an officer or director of the Company that do not violate any
of
the provisions of Section 5.5 of the Merger Agreement.
Section
2. Irrevocable
Proxy.
Each
Shareholder, revoking any proxies that he or it has heretofore granted, hereby
irrevocably appoints Parent as attorney and proxy for and on behalf of such
Shareholder, for and in the name, place and stead of such Shareholder, to:
(a)
attend any and all meetings of the shareholders of the Company; (b) vote the
Shareholder’s Shares in accordance with the provisions of Sections 1(a)(ii) and
(iii) at any such meeting; (c) grant or withhold in accordance with the
provisions of Sections 1(a)(ii) and (iii) all written consents with respect
to
such Shares; and (d) represent and otherwise act for such Shareholder in the
same manner and with the same effect as if such Shareholder were personally
present at any such meeting. The foregoing proxy shall be deemed to be a proxy
coupled with an interest, is irrevocable (and as such shall survive and not
be
affected by the death, incapacity, mental illness or insanity of such
Shareholder) until the end of the Agreement Period and shall not be terminated
by operation of Law or upon the occurrence of any other event other than
following a termination of this Agreement pursuant to Section 5.4. Each
Shareholder authorizes such attorney and proxy to substitute any other Person
to
act hereunder, to revoke any substitution and to file this proxy and any
substitution or revocation with the Secretary of the Company. Each
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Shareholder
hereby affirms that the irrevocable proxy set forth in this Section 2 is given
in connection with the execution by Parent of the Merger Agreement and that
such
irrevocable proxy is given to secure the obligations of the Shareholder under
Section 1. The irrevocable proxy set forth in this Section 2 is executed and
intended to be irrevocable.
Section
3. Representations
and Warranties of Each Shareholder.
Each
Shareholder, severally and not jointly, represents and warrants to Parent as
follows:
3.1. Authorization.
If such
Shareholder is not
an
individual, it has full corporate power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated hereby. If such
shareholder is an individual, he or she has all requisite capacity to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby. This Agreement has been duly executed and delivered by such Shareholder
and constitutes a valid and legally binding obligation of such Shareholder
enforceable against such Shareholder in accordance with its terms.
3.2. No
Violation.
(a) The
execution and delivery of this Agreement by such Shareholder does not, and
the
consummation by such Shareholder of transactions contemplated hereby will not,
conflict with, or result in any violation of, or constitute a default (with
or
without notice or lapse of time, or both) under, or give rise to a right of,
or
result by its terms in the, termination, amendment, cancellation or acceleration
of any obligation or the loss of a material benefit under, or to increased,
additional, accelerated or guaranteed rights or entitlements of any Person
under, or create any obligation to make a payment to any other Person under,
or
result in the creation of a Lien on, or the loss of, any Shares of such
Shareholder pursuant to: (i) if such Shareholder is not
an
individual, any provision of its articles of incorporation, bylaws or similar
organizational documents; or (ii) any Contract to which such Shareholder is
a
party or by which any of his or her properties or assets is bound or any Order
or Law applicable to such Shareholder or his, her or its properties or
assets.
(b) No
consent, approval, Order or authorization of, or registration, declaration
or
filing with, any Governmental Entity or any other Person is required by or
with
respect to such Shareholder in connection with the execution and delivery of
this Agreement by such Shareholder or the consummation by such Shareholder
of
the transactions contemplated hereby.
3.3. Ownership
of Schedule A Securities.
Such
Shareholder is the sole legal and beneficial owner of all of the shares of
Company Common Stock and the other Schedule A Securities set forth next to
his,
or her or its name on Schedule
A,
free
and clear of all Liens and has not entered into any voting agreement (other
than
this Agreement) with or granted any Person any proxy (revocable or irrevocable)
with respect to such shares (other than this Agreement). Such Shareholder does
not legally or beneficially own or have the right to acquire any securities
of
the Company other than the Schedule A Securities set forth next to his or her
name on Schedule A.
As of
the time of any meeting of the shareholders of the Company referred to in
Section 1(a)(i) and with respect to any written consent of the shareholders
of
the Company referred to in Sections 1(a)(ii) or (iii), the Shareholder will
be
the sole legal and beneficial owner
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of
all of
the Schedule A Securities, free and clear of all Liens, other than those
Schedule A Securities to whose Transfer Parent has agreed pursuant to Section
4.
4. No
Transfers.
(a) Each
Shareholder hereby agrees that if he or it sells, transfers, assigns, encumbers
or otherwise disposes (each, a “Transfer”)
of any
Shares during the Agreement Period, he or she shall require the transferee
of
such Shares to execute and deliver to Parent a joinder to this Agreement in
form
and substance satisfactory to Parent.
(b) With
respect to any Shareholder's Shares held by a broker in such broker's name
for
the benefit of such Shareholder, such Shareholder shall by no later than January
10, 2007 deliver a letter to the broker that informs the broker of such
Shareholder's obligations under this Agreement and that informs the broker
that
the broker may not act in disregard of such obligations without the prior
written consent of Parent.
(c) Each
Shareholder hereby authorizes Parent to direct the Company to impose stop orders
to prevent the Transfer of any Shares on the books of the Company in violation
of this Agreement.
Section
5. Miscellaneous.
5.1. Notices.
All
notices and other communications hereunder shall be in writing and shall be
deemed duly given or made as of the date of receipt if delivered personally,
sent by telecopier or facsimile (and sender shall bear the burden of proof
of
delivery), sent by overnight courier (providing proof of delivery) or sent
by
registered or certified mail (return receipt requested, postage prepaid), in
each case, to the parties at the following addresses or facsimile numbers (or
at
such other address or facsimile number for a party as shall be specified by
like
notice):
If
to
Parent:
000
Xxxxx
Xxxxxx, 0xx Xxxxx
One
Canterbury Green
Stamford,
CT 106901
Attention:
General
Counsel
Facsimile:
(000)
000-0000
with
a
copy to:
Xxxxxx
Xxxxxxx & Xxxx LLP
Xxx
Xxxxxxx Xxxx Xxxxx
Xxx
Xxxx,
XX 00000
Attention: Xxxxxxx
X. Xxxxxxxxx
Facsimile: (000)
000-0000
If
to a
Shareholder, to his or her address set forth on a signature page
hereto.
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5.2. Entire
Agreement; No Third Party Beneficiaries.
(a) This
Agreement constitutes the entire agreement, and supersedes all prior
understandings, agreements or representations, by or among the parties hereto
with respect to the subject matter hereof.
(b) This
Agreement shall not confer any rights or remedies upon any Person other than
the
parties hereto and their respective permitted successors and permitted
assigns.
5.3. Assignment;
Binding Effect.
Subject
to Sections 4(a) and (b), neither any Shareholder may on the one hand, nor
Parent, on the other hand, assign this Agreement or any of his or its rights,
interests or obligations hereunder (whether by operation of Law or otherwise)
without the prior written approval of Parent or the Shareholders, as applicable,
and any attempted assignment without such prior written approval shall be void
and without legal effect; provided,
however,
that
Parent may assign its rights hereunder to a direct or indirect wholly-owned
Subsidiary of Parent. Subject to the preceding sentence, this Agreement shall
be
binding upon and inure to the benefit of the parties hereto and their respective
permitted successors and permitted assigns.
5.4. Termination.
This
Agreement shall terminate on the earlier to occur of (a) the Effective Time
and
(b) the termination of the Merger Agreement in accordance with its terms;
provided,
however,
no such
termination shall relieve or release any Shareholder from any obligations or
liabilities arising out of his or its breach of this Agreement.
5.5. Governing
Law; Consent to Jurisdiction.
Except
to the extent that the laws of the State of Virginia are mandatorily applicable
to the Merger, this Agreement and the transactions contemplated hereby, this
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York that apply to Contracts made and performed entirely within
such State. Each party hereto agrees that any dispute or disagreement
between or among any of the parties hereto as to the interpretation of any
provision of, or the performance of obligations under, this Agreement shall
be
commenced and prosecuted in its entirety solely in the United States
District Court for the Southern District of New York and any reviewing appellate
court thereof. If the United States District Court for the Southern District
of
New York, or any reviewing appellate court thereof, finds that it does not
have jurisdiction over the dispute or disagreement, then and only then can
the
parties proceed in state court and the parties hereby agree that any such
dispute will only be brought in state court in New York County, New York. Each
party hereto consents to personal and subject matter jurisdiction and venue
in
such New York federal or state courts (as the case may be) and waives and
relinquishes all right to attack the suitability or convenience of such venue
or
forum by reason of their present or future domiciles, or by any other reason.
The parties hereto acknowledge that all directions issued by the forum court,
including all injunctions and other decrees, will be binding and enforceable
in
all jurisdictions and countries.
5.6. Severability.
If any
term or other provision of this Agreement is invalid, illegal or incapable
of
being enforced by any Law or public policy, then all other terms and provisions
of this Agreement shall nevertheless remain in full force and effect so long
as
the economic or legal substance of the transactions contemplated hereby is
not
affected in any
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manner
materially adverse to any party hereto. Upon such determination that any term
or
other provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner so that the transactions contemplated hereby are consummated as
originally contemplated to the greatest extent possible.
5.7. Enforcement
of Agreement.
Each
Shareholder agrees that money damages or any other remedy at law would not
be a
sufficient or adequate remedy for any actual or threatened breach or violation
of, or default under, this Agreement by such Shareholder and that, in addition
to all other available remedies, Parent shall be entitled, to the fullest extent
permitted by Law, to an injunction restraining such actual or threatened breach,
violation or default and to any other equitable relief, including specific
performance, without bond or other security being required. This Agreement
is
intended to be specifically enforceable in accordance with Section 13.1-671(b)
of the VSCA.
5.8. WAIVER
OF JURY TRIAL.
EACH
PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
5.9. Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original but all of which together will constitute one and the same
instrument.
5.10. Headings.
The
Article and Section headings contained in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or interpretation
of this Agreement.
5.11. Interpretation.
Any
reference to any supranational, national, state, provincial, municipal, local
or
foreign Law shall be deemed also to refer to all rules and regulations
promulgated thereunder, unless the context otherwise requires. When a reference
is made in this Agreement to Sections or Schedules, such reference shall be
to a
Section of or Schedule to 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.”
5.12. No
Presumption.
This
Agreement shall be construed without regard to any presumption or rule requiring
construction or interpretation against the party drafting or causing any
instrument to be drafted.
5.13 Several
Obligations.
Each
Shareholder’s obligations under this Agreement are several and not joint, and no
Shareholder shall have any liability or obligation under this Agreement for
any
breach hereunder by any other Shareholder.
[The
next
page is the signature page]
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The
parties hereto have executed this Voting Agreement and Irrevocable Proxy as
of
the date first written above.
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By:
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/s/Xxxxxx
X. Xxxxxx, Xx.
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Xxxxxx
X. Xxxxxx, Xx.
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Chairman
and Chief Executive Officer
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[Shareholder
Signatures Begin on the Next Page]
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XXXXX
LIMITED
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By:
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/s/
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Name:
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Title:
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Address:
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[Voting
Agreement and Irrevocable Proxy -- Shareholder Signature Page]
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PURICO
(IOM) LIMITED
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By:
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/s/
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Name:
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Title:
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Address:
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[Voting
Agreement and Irrevocable Proxy -- Shareholder Signature Page]
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MELHAM
US INC.
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By:
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/s/
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Name:
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Title:
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Address:
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[Voting
Agreement and Irrevocable Proxy -- Shareholder Signature Page]
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/s/
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| Xxxxx X. Xxxxxx | ||
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Address:
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[Voting
Agreement and Irrevocable Proxy -- Shareholder Signature Page]
SCHEDULE
A
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Name
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Shares
of
Company
Common Stock
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Other
Schedule
A Securities
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Xxxxx
Limited
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500,000
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--
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Purico
(IOM) Limited
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1,143,324
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--
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Melham
US Inc.
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128,045
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--
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Xxxxx
X. Xxxxxx
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138,796
plus
all shares held in
Xxxxx
X. Xxxxxx’ account in
the
Cadmus Account under the
Cadmus
Thrift Savings Plan as
of
12/26/2006 (a)
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98,000(b)
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_______________
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(a)
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As
of 8/31/2006 there were 6,795 shares in Xxxxx X. Xxxxxx’ account in the
Cadmus Account under the Cadmus Thrift Savings
Plan.
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(b)
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Consists
of shares of Company Stock issuable upon exercise of options, all
of which
are vested as of the date of the
Agreement.
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A-1
