EXHIBIT 99.2
VOTING AGREEMENT, dated as of December 3, 2001 (this "AGREEMENT"),
among GENESEE & WYOMING INC., a Delaware corporation ("PARENT"), and certain
stockholders of EMONS TRANSPORTATION GROUP, INC., a Delaware corporation
("COMPANY"), that are parties hereto (each, a "STOCKHOLDER" and, collectively,
the "STOCKHOLDERS").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Parent, ETR Acquisition Corporation, a Delaware
corporation and a wholly owned subsidiary of Parent ("SUB"), and Company propose
to enter into an Agreement and Plan of Merger, dated as of the date hereof (the
"MERGER AGREEMENT;" capitalized terms used without definition herein having the
meanings assigned to them in the Merger Agreement), pursuant to which Sub will
merge with and into Company, upon the terms and subject to the conditions set
forth in the Merger Agreement (the "COMPANY MERGER"); and
WHEREAS, as of the date hereof, each Stockholder is the record and
beneficial owner of shares of common stock, par value $0.01 per share, of
Company ("COMPANY COMMON STOCK") (with respect to each Stockholder, such
Stockholder's "EXISTING SHARES" and, together with any shares of Company Common
Stock or other voting capital stock of Company acquired after the date hereof,
whether upon the exercise of warrants, options, conversion of convertible
securities or otherwise, such Stockholder's "SHARES"); and
WHEREAS, as an inducement and condition to the willingness of
Parent and Sub to enter into the Merger Agreement, Parent and Sub have requested
that the Stockholders enter into this Agreement.
NOW THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements herein contained, and
intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
VOTING
1.1 AGREEMENT TO VOTE. Each Stockholder hereby agrees that it
shall, from time to time, at any meeting (whether annual or special and whether
or not an adjourned or postponed meeting) of stockholders of Company, however
called, or in connection with any written consent of the holders of Company
Common Stock, (a) if a meeting is held, appear at such meeting or otherwise
cause the Shares to be counted as present thereat for purposes of establishing a
quorum, and (b) vote or consent (or cause to be voted or consented), in person
or by proxy, all Shares, and any other voting securities of Company (whether
acquired heretofore or hereafter) that are beneficially owned or held of record
by such Stockholder or as to which such Stockholder has, directly or indirectly,
the right to vote or direct the voting, (x) in favor of the approval and
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adoption of the Merger Agreement, the Company Merger and any action required in
furtherance thereof and (y) against any action, proposal, transaction or
agreement that to the knowledge of such Stockholder would constitute a breach in
any material respect of any covenant, representation or warranty or any other
obligation or agreement of the Company under the Merger Agreement or of such
Stockholder under this Agreement.
1.2 GRANT OF IRREVOCABLE PROXY. Each Stockholder, in its capacity
as such, hereby irrevocably appoints Parent or any designee of Parent the lawful
agent, attorney and proxy of each such Stockholder during the term of this
Agreement (which proxy shall be automatically revoked without any further action
on the part of such Stockholder upon the termination of this Agreement) to vote
the Shares of such Stockholder in accordance with the agreement to vote Shares
set forth in Section 1.1 of this Agreement at any meeting of the stockholders of
the Company. Each Stockholder intends this proxy to be irrevocable and coupled
with an interest and 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 its Shares.
1.3 NO OWNERSHIP INTEREST. Nothing contained in this Agreement
shall be deemed to vest in Parent any direct or indirect ownership or incidence
of ownership of or with respect to any Shares. All rights, ownership and
economic benefits of and relating to the Shares shall remain vested in and
belong to the Stockholders, and Parent shall have no authority to manage,
direct, superintend, restrict, regulate, govern, or administer any of the
policies or operations of Company or exercise any power or authority to direct
the Stockholders in the voting of any of the Shares, except as otherwise
provided herein, or in the performance of the Stockholders' duties or
responsibilities as stockholders of Company.
1.4 NO INCONSISTENT AGREEMENTS. Each Stockholder hereby covenants
and agrees that, except as contemplated by this Agreement and the Merger
Agreement, the Stockholder (a) has not entered, and shall not enter at any time
while this Agreement remains in effect, into any voting agreement or voting
trust with respect to the Shares and (b) has not granted, and shall not grant at
any time while this Agreement remains in effect, a proxy or power of attorney
with respect to the Shares, in either case, which is inconsistent with such
Stockholder's obligations pursuant to this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF EACH STOCKHOLDER
Each Stockholder hereby, severally and not jointly, represents and
warrants to Parent as follows:
2.1 AUTHORIZATION; VALIDITY OF AGREEMENT; NECESSARY ACTION. Such
Stockholder has full power and authority to execute and deliver this Agreement,
to perform such Stockholder's obligations hereunder and to consummate the
transactions contemplated hereby. The execution, delivery and performance by
such Stockholder of this Agreement and the consummation by it of the
transactions contemplated hereby have been duly and validly authorized by such
Stockholder and no other actions or proceedings on the part of such Stockholder
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are necessary to authorize the execution and delivery by it of this Agreement
and the consummation by it of the transactions contemplated hereby. This
Agreement has been duly executed and delivered by such Stockholder, and,
assuming this Agreement constitutes a valid and binding obligation of Parent,
constitutes a valid and binding obligation of such Stockholder, enforceable
against it in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws, relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
2.2 SHARES. Such Stockholder's Existing Shares are, and all of its
Shares from the date hereof through and on the Closing Date have been and will
be, owned beneficially and of record by such Stockholder. As of the date hereof,
such Stockholder's Existing Shares constitute all of the shares of Company
Common Stock owned of record or beneficially by such Stockholder. Such
Stockholder has or will have sole voting power, sole power of disposition, sole
power to issue instructions with respect to the matters set forth in Article I
hereof, and sole power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of such Stockholder's Existing
Shares and with respect to all of such Stockholder's Shares on the Closing Date,
with no limitations, qualifications or restrictions on such rights, subject to
applicable federal securities laws and the terms of this Agreement.
ARTICLE III
OTHER COVENANTS
3.1 FURTHER AGREEMENTS OF STOCKHOLDERS.
(a) Each Stockholder, severally and not jointly, hereby
agrees, while this Agreement is in effect, and except as contemplated hereby,
not to sell, transfer, pledge, encumber, assign or otherwise dispose of
(collectively, a "TRANSFER") or enforce or permit the execution of the
provisions of any redemption, share purchase or sale, recapitalization or other
agreement with Company or enter into any contract, option or other arrangement
or understanding with respect to the offer for sale, sale, transfer, pledge,
encumbrance, assignment or other disposition of, any of its Existing Shares, any
Shares acquired after the date hereof, any securities exercisable for or
convertible into Company Common Stock, any other capital stock of Company or any
interest in any of the foregoing with any person, except to a person who agrees
in writing, in an instrument reasonably acceptable to Parent, to be bound by
this Agreement as a Stockholder and be subject to Sections 1.1 and 1.2 hereof.
(b) In the event of a stock dividend or distribution, or any
change in Company Common Stock by reason of any stock dividend or distribution,
or any change in Company Common Stock by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like, the term "SHARES"
shall be deemed to refer to and include the Shares as well as all such stock
dividends and distributions and any securities into which or for which any or
all of the Shares may be changed or exchanged or which are received in such
transaction.
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ARTICLE IV
MISCELLANEOUS
4.1 TERMINATION. This Agreement shall terminate and no party shall
have any rights or duties hereunder upon the earlier of (a) the Effective Time
or (b) termination of the Merger Agreement pursuant to Section 8.1 thereof.
Nothing in this Section 4.1 shall relieve or otherwise limit any party of
liability for breach of this Agreement.
4.2 FURTHER ASSURANCES. From time to time, at the other party's
request and without further consideration, each party hereto shall execute and
deliver such additional documents and take all such further action as may be
necessary or desirable to consummate the transactions contemplated by this
Agreement.
4.3 NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed duly given (a) on the date of delivery if
delivered personally, or by telecopy or telefacsimile, upon confirmation of
receipt, (b) on the first business day following the date of dispatch if
delivered by a recognized next-day courier service, or (c) on the tenth business
day following the date of mailing if delivered by registered or certified mail,
return receipt requested, postage prepaid. All notices hereunder shall be
delivered as set forth below, or pursuant to such other instructions as may be
designated in writing by the party to receive such notice:
(a) if to Parent to:
Genesee & Wyoming Inc.
00 Xxxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
(b) if to a Stockholder:
c/o Emons Transportation Group, Inc.
00 Xxxxx Xxxxxx Xxxxxx
Xxxx, XX 00000
Fax: (000) 000-0000
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4.4 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that both
parties need not sign the same counterpart.
4.5 GOVERNING LAW. This Agreement shall be governed and construed
in accordance with the laws of the State New York.
4.6 AMENDMENT. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
4.7 ENFORCEMENT. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms. It is accordingly agreed that
the parties shall be entitled to specific performance of the terms hereof, this
being in addition to any other remedy to which they are entitled at law or in
equity.
4.8 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and supersedes all prior agreements and understandings, both written
and oral, among the parties, or any of them, with respect to the subject matter
hereof.
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IN WITNESS WHEREOF, Parent and each of the Stockholders have
caused this Agreement to be signed by their respective officers or other
authorized person thereunto duly authorized as of the date first written above.
GENESEE & WYOMING INC.
By: /S/ XXXX X. XXXXXXXX
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Name: Xxxx X. Xxxxxxxx
Title: Executive Vice President
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By: /S/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx
By: /S/ XXXXXX XXXXXXXX
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Xxxxxx Xxxxxxxx
By: /S/ XXXXXXXX X. XXXXXXX
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Xxxxxxxx X. Xxxxxxx
By: ------------------------------
Xxxxxx X. Xxxxxxxxxxx
By: /S/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx
By: /S/ XXXX X. XXXX
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Xxxx X. Xxxx
By: /S/ XXXXX X. XXXXXXX
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Xxxxx X. Xxxxxxx
