EXHIBIT 1
VOTING AGREEMENT
This Voting Agreement (this "Agreement") is made and entered into as of
September 22, 2005, by and between the XXXXXXX XXXXXX FAMILY LIMITED
PARTNERSHIP, a Nevada limited partnership (the "Selling Stockholder"), and WLR
RECOVERY FUND III, L.P., a Delaware limited partnership ("Purchaser").
Capitalized terms used herein and not otherwise defined have the meaning given
thereto in Section 6 below.
RECITALS
WHEREAS, Purchaser and Xxxxxx Corporation, a Nevada corporation
("Xxxxxx"), have entered into a Stock Purchase Agreement of even date herewith
(the "Purchase Agreement"), which provides for the sale by Xxxxxx to Purchaser
of all of the shares (the "Safety Components Shares") of capital stock of Safety
Components International, Inc. ("Safety Components") beneficially owned by
Xxxxxx, subject to the terms and conditions set forth in the Purchase Agreement.
WHEREAS, the Selling Stockholder is the sole beneficial owner of
10,073,112 shares of Xxxxxx common stock, which constitutes 51.9% of the
outstanding shares of Xxxxxx common stock;
WHEREAS, in order to induce Purchaser to enter into the Purchase
Agreement, the Selling Stockholder (in its capacity as such) agrees, on the
terms and conditions hereof, to vote or gives its consent with respect to its
Xxxxxx Shares as provided herein;
NOW, THEREFORE, intending to be legally bound, the Selling Stockholder
agrees in favor of Purchaser as follows:
1. SELLING STOCKHOLDER'S AGREEMENT TO VOTE SHARES. At any and every
meeting of the stockholders of Xxxxxx called, and at any and every adjournment
or postponement thereof, Selling Stockholder (in its capacity as such) shall
vote, and at all times it shall give its consent with respect to, all of the
Xxxxxx Shares in favor of the sale of the Safety Components Shares by Xxxxxx to
Purchaser pursuant to the Purchase Agreement and any action in furtherance
thereof and against approval of any action, agreement or proposal made in
opposition to, or in competition therewith.
2. REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDER. Selling
Stockholder is the beneficial owner of the Xxxxxx Shares indicated in the
Recitals above, and has full power and authority to make, enter into and carry
out the terms of this Agreement. Selling Stockholder holds exclusive power to
vote the Xxxxxx Shares. The execution and delivery of this Agreement by Selling
Stockholder and the consummation by Selling Stockholder of the transactions
contemplated hereby have been duly authorized by all necessary parternship or
other action on the part of Selling Stockholder. This Agreement has been duly
executed and delivered by Selling Stockholder, and, assuming the due
authorization, execution and delivery by Purchaser, constitutes the legal, valid
and binding obligation of Selling Stockholder, enforceable against Stockholder
in accordance with its terms.
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3. TRANSFER OF XXXXXX SHARES.
(a) Transferee of Xxxxxx Shares to be Bound by this Agreement.
Selling Stockholder agrees that, during the period from the date of this
Agreement through the Expiration Date, Selling Stockholder shall not cause or
permit any Transfer of any of the Xxxxxx Shares to be effected unless each
Person to which any of such Shares, or any interest in any of such Shares, is or
may be transferred shall have: (a) executed a counterpart of this Agreement; and
(b) agreed in writing to hold such Xxxxxx Shares (or interest in such Xxxxxx
Shares) subject to all of the terms and provisions of this Agreement.
(b) Transfer of Voting Rights. Selling Stockholder agrees that,
during the period from the date of this Agreement through the Expiration Date,
Selling Stockholder shall not deposit (or permit the deposit of) any Xxxxxx
Shares in a voting trust or grant any proxy or enter into any voting agreement
or similar agreement in contravention of the obligations of Selling Stockholder
under this Agreement with respect to any of the Xxxxxx Shares.
4. IRREVOCABLE PROXY. Contemporaneously with the execution of this
Agreement, Selling Stockholder will deliver to Purchaser a proxy with respect to
the Xxxxxx Shares in the form attached hereto as Exhibit 1, which proxy will be
irrevocable to the fullest extent permitted by applicable law (the "Proxy"),
except that the Proxy shall be automatically revoked upon termination of this
Agreement in accordance with its terms.
5. TERMINATION. This Agreement shall terminate and shall have no further
force or effect as of the Expiration Date.
6. CERTAIN DEFINITIONS. Capitalized terms not defined herein shall have
the meanings ascribed to them in the Purchase Agreement. For purposes of this
Agreement:
(a) "Expiration Date" shall mean the date on which the Purchase
Agreement terminates in accordance with its terms.
(b) "Xxxxxx Common Stock" shall mean the common stock of Xxxxxx.
(c) "Xxxxxx Shares" shall mean: (i) all securities of Xxxxxx
(including all shares of Xxxxxx common stock and all options, warrants and other
rights to acquire shares of Xxxxxx common stock) beneficially owned by Selling
Stockholder as of the date of this Agreement; and (ii) all additional securities
of Xxxxxx (including all additional shares of Xxxxxx common stock and all
additional options, warrants and other rights to acquire shares of Xxxxxx common
stock) in which Selling Stockholder acquires beneficial ownership during the
period from the date of this Agreement through the Expiration Date.
(d) "Transfer" means, with respect to any security held by a Person,
if such person directly or indirectly: (i) sells, pledges, encumbers, grants an
option with respect to, transfers or disposes of such security or any interest
in such security; or (ii) enters into an agreement or commitment providing for
the sale of, pledge of, encumbrance of, grant of an option with respect to,
transfer of or disposition of such security or any interest therein.
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7. MISCELLANEOUS.
(a) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, then the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
(b) Binding Effect and Assignment . This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but, except as
otherwise specifically provided herein, neither this Agreement nor any of the
rights, interests or obligations of the parties hereto may be assigned by either
of the parties without prior written consent of the other.
(c) Amendments and Modification. This Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by the parties hereto.
(d) Specific Performance; Injunctive Relief. Selling Stockholder
acknowledges that Purchaser shall be irreparably harmed and that there shall be
no adequate remedy at law for a violation of any of the covenants or agreements
of Selling Stockholder set forth herein. Therefore, it is agreed that, in
addition to any other remedies that may be available to Purchaser upon any such
violation, Purchaser shall have the right to enforce such covenants and
agreements by specific performance, injunctive relief or by any other means
available to Purchaser at law or in equity, without the posting of any bond.
(e) Notices. All notices or other communications which are required
or permitted hereunder shall be in writing and sufficient if delivered by hand,
by facsimile transmission, by registered or certified mail, postage pre-paid, or
by courier or overnight carrier, to the persons at the addresses set forth below
(or at such other address as may be provided hereunder), and shall be deemed to
have been delivered as of the date so delivered:
If to Purchaser:
WLR Recovery Fund III, L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
Facsimile Number: (000) 000-0000
Copy to Counsel: Xxxxx Day
000 Xxxx 00 Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Facsimile Number: (000) 000-0000
If to Selling x/x Xxxxxx Xxxxxxxxxxx.
Stockholder: 000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Vice President-Finance
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Facsimile Number: (000) 000-0000
With a copy to:
Xxxxx Xxxxxx Xxxxxx LLP
0 Xxxxx Xxxxxx
000 Xxxxxxxxxx Xxxxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Forth, Esq.
Facsimile Number: (000) 000-0000
(f) Governing Law. This Agreement shall be governed by, and
construed in accordance with, the Laws of the State of New York, except as to
matters governed by the internal corporation Laws of the State of Nevada.
(g) Entire Agreement. This Agreement contains the entire
understanding of the parties in respect of the subject matter hereof, and
supersede all prior negotiations and understandings between the parties with
respect to such subject matter.
(h) Effect of Headings. The section headings are for convenience
only and shall not affect the construction or interpretation of this Agreement.
(i) Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
[Signature follow on next page]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the day and year first above written.
XXXXXXX XXXXXX FAMILY LIMITED
PARTNERSHIP
MIG, INC., a general partner
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
WLR RECOVERY FUND III, L.P.
By: WLR RECOVERY ASSOCIATES, III
LLC, its General Partner
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Principal Member
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Exhibit 1
IRREVOCABLE PROXY
The undersigned stockholder (the "Selling Stockholder") of Xxxxxx
Corporation, a Nevada corporation (the "Company"), hereby irrevocably (to the
fullest extent permitted by applicable law) appoints and constitutes those
officers of WLR Recovery Fund III, L.P., a Delaware limited partnership (the
"Purchaser"), designated by the Purchaser in writing and each of them
(collectively, the "Proxyholders"), the agents, attorneys and proxies of the
undersigned, with full power of substitution and resubstitution, to the fullest
extent of the undersigned's rights with respect to the Xxxxxx Shares, as such
term is defined in the Voting Agreement, dated as of September_____, 2005,
between the Purchaser and the Selling Stockholder (the "Voting Agreement").
The Proxyholders named above will be empowered, and may exercise this
proxy, to vote the Xxxxxx. Shares at any time at any and every meeting called,
and in any action taken by the written consent of the stockholders of the
Company without a meeting, in favor of the sale of the Safety Components Shares
by Xxxxxx to Purchaser pursuant to the Stock Purchase Agreement, dated as of
September______, 2005, between the Purchaser and the Company, and any action in
furtherance thereof and against approval of any action, agreement or proposal
made in opposition to, or in competition therewith.
The Proxyholders may not exercise this proxy on any other matter. The
Selling Stockholder may vote the Xxxxxx Shares on all such other matters. The
proxy granted by the Selling Stockholder to the Proxyholders hereby is granted
as of the date of this Irrevocable Proxy in order to secure the obligations of
the Selling Stockholder set forth in Section 4 of the Voting Agreement.
This proxy will terminate upon the termination of the Voting Agreement in
accordance with its terms. Any obligation of the undersigned hereunder shall be
binding upon the successors and assigns of the undersigned. The undersigned
Selling Stockholder authorizes the Proxyholders to file this proxy and any
substitution or revocation of substitution with the Secretary of the Company and
with any Inspector of Elections at any meeting of the stockholders of the
Company.
This proxy is irrevocable, is coupled with an interest, and shall survive
the insolvency or liquidation of the undersigned and will be binding upon the
successors and assigns of the undersigned (including any transferee of any of
the Xxxxxx Shares).
Dated: September______, 2005
XXXXXXX XXXXXX FAMILY LIMITED PARTNERSHIP
MIG, INC., a general partner
By: /s/
-------------------------------------
Name:
Title:
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AMENDMENT NO. 1 AND JOINDER
This AMENDMENT NO. 1 AND JOINDER, dated as of September 26, 2005 (this
"Amendment"), by and among WLR RECOVERY FUND II, L.P., a Delaware limited
partnership (the "Fund II"), WLR RECOVERY FUND III, L.P., a Delaware limited
partnership (the "Fund III"), and XXXXXXX XXXXXX FAMILY LIMITED PARTNERSHIP, a
Nevada limited partnership (the "MGFLP"), to the Voting Agreement, dated as of
September 22, 2005 (the "Voting Agreement"), by and between MGFLP and Fund III.
WITNESSETH:
WHEREAS, (i) Fund III and the Selling Stockholder have executed and
delivered the Stock Purchase Agreement, dated as of September 23, 2005 (the
"Stock Purchase Agreement"), (ii) MGFLP and Fund III have executed and delivered
the Voting Agreement, and (iii) MGFLP has executed and delivered the Proxy in
favor of Fund III;
WHEREAS, Fund III has advised MGFLP that it is required under applicable
agreements to permit Fund II to participate in the purchase of the Purchased
Shares (as defined in the Stock Purchase Agreement);
WHEREAS, Section 7(c) of the Voting Agreement provides that the Voting
Agreement may not be modified, amended, altered or supplemented except upon the
execution and delivery of a written agreement executed by the parties thereto;
WHEREAS, MGFLP and Fund III have agreed to amend the Voting Agreement to
provide that Fund II shall become a party thereto, as provided in this
Amendment;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements hereinafter set forth, the parties hereto hereby agree
as follows:
1. Definitions. Capitalized terms used herein without definition are used
as defined in the Voting Agreement, unless otherwise indicated herein.
2. Amendments to Voting Agreement.
(a) The Voting Agreement is hereby amended to change the date of
such agreement to September 23, 2005 from September 22, 2005.
(b) The Voting Agreement is hereby amended to provide that
references therein to the term "Purchaser" shall be references to both Fund II
and Fund III.
(c) The Proxy (as defined in the Voting Agreement) executed and
delivered by MGFLP shall be superseded, when executed and delivered by MGFLP, by
the form of proxy attached hereto as Exhibit 1, which proxy will be irrevocable
to the same extent provided in the Voting Agreement. For all purposes under the
Voting Agreement, the form of proxy attached hereto as Exhibit 1, when executed
and delivered by MGFLP, will be the "Proxy" as defined, and as such term is
used, in the Voting Agreement.
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3. Joinder. In consideration of this Amendment, Fund II hereby agrees to
become a party to each of the Voting Agreement, as amended by this Amendment,
and shall severally be fully bound by and subject to all of the covenants, terms
and provisions of each such agreement as a "Purchaser," and as though an
original party thereto.
4. Miscellaneous. Except as expressly amended and modified hereby, the
Voting Agreement is hereby ratified and reaffirmed in all respects and all the
terms and provisions thereof shall be and remain in full force and effect. The
section and other headings in this Amendment are inserted solely as a matter of
convenience and for reference, are not a part of this Amendment, and shall not
be deemed to affect the meaning or interpretation of this Amendment. This
Amendment may be signed in any number of counterparts, each of which shall be
deemed an original, and all of which together shall constitute one and the same
instrument. This Amendment may be executed by facsimile signature transmitted to
any other party by electronic transmission. The parties shall be bound by a
facsimile signature once transmitted to another party. The latter transmission
of an originally executed copy of any such document shall not invalidate any
signature previously given by electronic transmission. This Amendment shall be
governed by, and construed in accordance with, the laws of the State of New York
without reference to conflict of laws principles.
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IN WITNESS WHEREOF, the undersigned parties hereto have duly executed this
Amendment as of the date first above written.
WLR RECOVERY FUND II, L.P.
By: WLR Recovery Associates, II
LLC, as its General Partner
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Xxxxx X. Xxxxxxx
Principal Member
WLR RECOVERY FUND III, L.P.
By: WLR Recovery Associates, III
LLC, as its General Partner
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Xxxxx X. Xxxxxxx
Principal Member
XXXXXXX XXXXXX FAMILY LIMITED PARTNERSHIP
MIG, INC., a general partner
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
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Exhibit 1
IRREVOCABLE PROXY
The undersigned stockholder (the "Selling Stockholder") of Xxxxxx
Corporation, a Nevada corporation (the "Company"), hereby irrevocably (to the
fullest extent permitted by applicable law) appoints and constitutes those
officers of WLR Recovery Fund II, L.P., a Delaware limited partnership ("Fund
II"), and WLR Recovery Fund III, L.P., a Delaware limited partnership ("Fund
III" and, together with Fund II, the "Purchaser"), designated by the Purchaser
in writing and each of them (collectively, the "Proxyholders") the agents,
attorneys and proxies of the undersigned, with full power of substitution and
resubstitution, to the fullest extent of the undersigned's rights with respect
to the Xxxxxx Shares, as such term is defined in the Voting Agreement, dated as
of September 22, 2005, between Fund III and the Selling Stockholder (as amended
as of September 26, 2005, the "Voting Agreement").
The Proxyholders named above will be empowered, and may exercise this
proxy, to vote the Xxxxxx Shares at any time at any and every meeting called,
and in any action taken by the written consent of the stockholders of the
Company without a meeting, in favor of the sale of the Safety Components Shares
by Xxxxxx to Purchaser pursuant to the Stock Purchase Agreement, dated as of
September 23, 2005, between the Purchaser and the Company, as amended as of
September 26, 2005, and any action in furtherance thereof and against approval
of any action, agreement or proposal made in opposition to, or in competition
therewith.
The Proxyholders may not exercise this proxy on any other matter. The
Selling Stockholder may vote the Xxxxxx Shares on all such other matters. The
proxy granted by the Selling Stockholder to the Proxyholders hereby is granted
as of the date of this Irrevocable Proxy in order to secure the obligations of
the Selling Stockholder set forth in Section 4 of the Voting Agreement.
This proxy supersedes and replaces the proxy executed by the Selling
Stockholder and delivered to Fund III on September 23, 2005, and, as such, shall
be the "Proxy" (as such term is defined and used) for all purposes under the
Voting Agreement. This proxy will terminate upon the termination of the Voting
Agreement in accordance with its terms. Any obligation of the undersigned
hereunder shall be binding upon the successors and assigns of the undersigned.
The undersigned Selling Stockholder authorizes the Proxyholders to file this
proxy and any substitution or revocation of substitution with the Secretary of
the Company and with any Inspector of Elections at any meeting of the
stockholders of the Company.
This proxy is irrevocable, is coupled with an interest, and shall survive
the insolvency or liquidation of the undersigned and will be binding upon the
successors and assigns of the undersigned (including any transferee of any of
the Xxxxxx Shares).
Dated: September 26, 2005
XXXXXXX XXXXXX FAMILY LIMITED PARTNERSHIP
MIG, INC., a general partner
By:
-------------------------------------
Name:
Title:
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