Exhibit (c)(2)
VOTING AGREEMENT
VOTING AGREEMENT, dated as of February 10, 1998, between Sombrero
Acquisition Corp., a Florida corporation ("Sub"), and the persons listed on
Schedule A hereto (each a "Stockholder", and, collectively, the "Stockholders").
WHEREAS, Sub and MTL Inc., a Florida corporation (the "Company"), propose
to enter into an Agreement and Plan of Merger of even date herewith (as the same
may be amended or supplemented, the "Merger Agreement") providing for the merger
of Sub with the Company (the "Merger");
WHEREAS, each Stockholder is the record and beneficial owner of, or the
trustee of a trust whose beneficiaries are the beneficial owners, such number of
shares of Common Stock, par value $.01 per share, of the Company (the "Company
Common Stock") set forth opposite such Stockholder's name on Schedule A hereto;
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such shares of Company Common Stock, as such shares may be adjusted by stock
dividend, stock split, recapitalization, combination or exchange of shares,
merger, consolidation, reorganization or other change or transaction of or by
the Company, together with shares of Company Common Stock that may be acquired
after the date hereof by such Stockholder, including shares of Company Common
Stock issuable upon the exercise of options to purchase Company Common Stock (as
the same may be adjusted as aforesaid), being collectively referred to herein as
the "Shares"; and
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Sub has requested that the Stockholders enter into this Agreement.
NOW, THEREFORE, to induce Sub to enter into, and in consideration of it
entering into, the Merger Agreement, and in consideration of the premises and
the representations, warranties and agreements contained herein, the parties
agree as follows:
1. Representations and Warranties of the Stockholders. Each Stockholder
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hereby, severally and not jointly, represents and warrants to Sub as follows:
(a) Authority. The Stockholder has all requisite power and authority to
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execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby have
been duly authorized by the Stockholder. This Agreement has been duly
executed and delivered by the Stockholder and, assuming this Agreement
constitutes a valid and binding obligation of Sub, constitutes a valid and
binding obligation of the Stockholder enforceable against the Stockholder
in accordance with its terms. Except for the expiration or termination of
the waiting periods under the HSR Act and informational filings with the
Securities and Exchange Commission, neither the execution, delivery or
performance of this Agreement by the Stockholder nor the consummation by
the Stockholder of the transactions contemplated hereby will (i) require
any filing with, or permit, authorization, consent or approval of, any
federal, state, local or municipal foreign or other government or
subdivision, branch, department or agency
thereof or any governmental or quasi-governmental authority of any nature,
including any court or other tribunal, (a "Governmental Entity"), (ii)
result in a violation or breach of, or constitute (with or without due
notice or lapse of time or both) a default under, or give rise to any right
of termination, amendment, cancellation or acceleration under, or result in
the creation of any pledge, claim, lien, option, charge, encumbrance or
security interest of any kind or nature whatsoever (a "Lien") upon any of
the properties or assets of the Stockholder under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, lease,
license, permit, concession, franchise, contract, agreement or other
instrument or obligation (a "Contract") to which the Stockholder is a party
or by which the Stockholder or any of the Stockholder's properties or
assets, including the Stockholder's Shares, may be bound or (iii) violate
any judgment, order, writ, preliminary or permanent injunction or decree
(an "Order") or any statute, law, ordinance, rule or regulation of any
Governmental Entity (a "Law") applicable to the Stockholder or any of the
Stockholder's properties or assets, including the Stockholder's Shares.
(b) The Shares. The Stockholder's Shares and the certificates representing
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such Shares are now, and at all times during the term hereof will be, held
by such Stockholder, or by a nominee or custodian for the benefit of such
Stockholder, and the Stockholder has good and marketable title to such
Shares, free and clear of any Liens (except as provided on Schedule B),
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proxies, voting trusts or agreements, understandings or arrangements,
except for any such Liens or proxies arising hereunder. The Stockholder
owns of record or beneficially no shares of Company Common Stock other than
such Stockholder's Shares and shares of Company Common Stock issuable upon
the exercise of Company Stock Options (as defined in the Merger Agreement),
in each case as set forth on Schedule A hereto.
(c) Merger Agreement. The Stockholder understands and acknowledges that Sub is
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entering into the Merger Agreement in reliance upon the Stockholder's
execution and delivery of this Agreement.
2. Board Approval. The Board of Directors of the Company has, to the extent
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required by applicable law, duly and validly authorized and approved by all
necessary corporate action, this Agreement, the Merger Agreement and the
transactions contemplated hereby and thereby, so that by the execution and
delivery hereof no restrictive provision of any "fair price," "moratorium,"
"control-share acquisition," "interested shareholders" or other similar anti-
takeover statute or regulation (including, without limitation, Sections 607.0901
and 607.0902 of the Florida Business Corporation Act) or restrictive provision
of any applicable anti-takeover provision in the Articles of Incorporation or
by-laws of the Company is, or will be, applicable to the Company, Sub the
Shares, the Merger or any other transaction contemplated by this Agreement.
3. Agreements of All Stockholders. Each Stockholder, severally and not
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jointly, agrees as follows:
(a) Until the Merger is consummated or the Merger Agreement is terminated in
accordance with its terms, the Stockholder shall not, (i) sell, transfer,
pledge, assign or otherwise dispose of, or enter into any Contract, option
or other arrangement (including
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any profit sharing arrangement) or understanding with respect to the sale,
transfer, pledge, assignment or other disposition of, the Shares to any
person other than Sub or Sub's designee, (ii) enter into any voting
arrangement, whether by proxy, voting agreement, voting trust, power-of-
attorney or otherwise, with respect to the Shares or (iii) take any other
action that would in any way restrict, limit or interfere with the
performance of its obligations hereunder or the transactions contemplated
hereby.
(b) At any meeting of Stockholders of the Company called to vote upon the
Merger and the Merger Agreement or at any adjournment thereof or in any
other circumstances upon which a vote, consent or other approval (including
by written consent) with respect to the Merger and the Merger Agreement is
sought, each Stockholder shall, including by initiating a written consent
solicitation if requested by Sub, vote (or cause to be voted) such
Stockholder's Shares in favor of the Merger, the adoption by the Company of
the Merger Agreement and the approval of the other transactions
contemplated by the Merger Agreement.
(c) Unless the Merger Agreement shall have been earlier terminated in
accordance with its terms, at any meeting of Stockholders of the Company or
at any adjournment thereof or in any other circumstances upon which the
Stockholder's vote, consent or other approval is sought, such Stockholder
shall vote (or cause to be voted) such Stockholder's Shares against (i) any
merger agreement or merger (other than the Merger Agreement and the
Merger), consolidation, combination, sale of substantial assets,
reorganization, recapitalization, dissolution, liquidation or winding up of
or by the Company or any other Alternative Proposal (as defined in the
Merger Agreement) (collectively, "Alternative Transactions") or (ii) any
amendment of the Company's Articles of Incorporation or by-laws or other
proposal or transaction involving the Company or any of its subsidiaries,
which amendment or other proposal or transaction would in any manner
impede, frustrate, prevent or nullify, the Merger, the Merger Agreement or
any of the other transactions contemplated by the Merger Agreement
(collectively, "Frustrating Transactions").
(d) The Stockholders listed on Schedule A to the Merger Agreement understand
and acknowledge that Sub is entering into the Merger Agreement in reliance
upon the conversion of their shares into the Surviving Corporation Common
Stock and agree to such conversion pursuant to Section 4.2 of the Merger
Agreement.
4. Grant of Irrevocable Proxy Coupled with an Interest; Appointment of Proxy.
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(a) Each Stockholder hereby irrevocably grants to, and appoints Xxxxxx Xxxxxx
and any other individual who shall hereafter be designated by Sub, and each
of them, such Stockholder's proxy and attorney-in-fact (with full power of
substitution), for and in the name, place and stead of such Stockholder, to
vote such Stockholder's Shares, or grant a consent or approval in respect
of such Shares, at any meeting of Stockholders of the Company or at any
adjournment thereof or in any other circumstances upon which their vote,
consent or other approval is sought, (i) in favor of the Merger, the
adoption by the Company of the Merger Agreement and the approval of the
other transactions contemplated by the Merger Agreement and (ii) unless the
Merger Agreement shall have
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been earlier terminated in accordance with its terms, against any
Alternative Transaction or Frustrating Transaction.
(b) Each Stockholder represents that any proxies heretofore given in respect of
such Stockholder's Shares are not irrevocable, and that any such proxies
are hereby revoked.
(c) EACH STOCKHOLDER HEREBY AFFIRMS THAT THE PROXY SET FORTH IN THIS SECTION 4
IS COUPLED WITH AN INTEREST AND IS IRREVOCABLE UNTIL SUCH TIME AS THIS
AGREEMENT TERMINATES IN ACCORDANCE WITH ITS TERMS. Such Stockholder hereby
further affirms that the irrevocable proxy is given in connection with the
execution of the Merger Agreement, and that such irrevocable proxy is given
to secure the performance of the duties of such Stockholder under this
Agreement. Such Stockholder hereby ratifies and confirms all that such
irrevocable proxy may lawfully do or cause to be done by virtue hereof.
Such irrevocable proxy is executed and intended to be irrevocable in
accordance with the provisions of Section 607.0722 of the FBCA. Such
irrevocable proxy shall be valid until the later to occur of (i) one year
from the date hereof or (ii) the termination of this Agreement pursuant to
Section 6.
5. Further Assurances. Each Stockholder will, from time to time, execute
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and deliver, or cause to be executed and delivered, such additional or further
transfers, assignments, endorsements, consents and other instruments as Sub may
reasonably request for the purpose of effectively carrying out the transactions
contemplated by this Agreement and to vest the power to vote such Stockholder's
Shares as contemplated by Section 5.
6. Termination. This Agreement, and all rights and obligations of the
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parties hereunder, shall terminate upon the consummation or termination of the
Merger Agreement in accordance with its terms. Nothing in this Section 6 shall
relieve any Stockholder from liability for willful breach of this Agreement.
7. General.
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(a) Counterparts. This Agreement may be executed in two or more counterparts,
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all of which shall be considered one and the same agreement and shall
become effective when two or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that
all parties need not sign the same counterpart.
(b) Entire Agreement; No Third-Party Beneficiaries. This Agreement (including
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the documents and instruments referred to herein) (i) constitutes the
entire agreement and supersedes all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof and (ii) is not intended to confer upon any person other than the
parties hereto any rights or remedies hereunder.
(c) Governing Law. This Agreement shall be governed and construed in
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accordance with the laws of the State of Florida without regard to any
applicable conflicts of law.
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8. Stockholder Capacity. No person executing this Agreement who is or
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becomes during the term hereof a director or officer of the Company makes any
agreement or understanding herein in his or her capacity as such director or
officer. Each Stockholder signs solely in his or her capacity as the record
holder and beneficial owner of, or the trustee of a trust whose beneficiaries
are the beneficial owners of, such Stockholder's Shares and nothing herein shall
limit or affect any actions taken by a Stockholder in its capacity as an officer
or director of the Company to the extent specifically permitted by the Merger
Agreement or as otherwise required by law.
9. Enforcement. The parties agree that irreparable damage would occur in
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the event that any of the provisions of this Agreement were not performed in
accordance with their 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 of this Agreement in a court of the United States.
This being in addition to any other remedy to which they are entitled at law or
in equity. In addition, each of the parties hereto waives any right to trial by
jury with respect to any claim or proceeding related to or arising out of this
Agreement or any of the transactions contemplated hereby.
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IN WITNESS WHEREOF, Sub has caused this Agreement to be signed by its
officer thereunto duly authorized and each Stockholder has signed this
Agreement, all as of the date first written above.
SOMBRERO ACQUISITION CORP.
By: /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
President
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
/s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
/s/ Xxxxxxx X. X'Xxxxx, Xx.
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Xxxxxxx X. X'Xxxxx, Xx.
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
/s/ Xxxxxx X. XxXxxxxxx
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Xxxxxx X. XxXxxxxxxx, as trustee for Xxxx XxXxxx
Children's Trust
/s/ Xxxxxx X. XxXxxxxxx
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Xxxxxx X. XxXxxxxxxx,
as trustee for Xxxx XxXxxx Children's Trust
/s/ Xxxxxx X. XxXxxxxxx
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Xxxxxx X. XxXxxxxxxx,
as trustee for Xxxx XxXxxx Children's Trust
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/s/ Xxxxxx X. XxXxxxxxx
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Xxxxxx X. XxXxxxxxxx,
as trustee for Xxxx Xxxxxxxxxx Children's Trust
/s/ Xxxxxx X. XxXxxxxxx
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Xxxxxx X. XxXxxxxxxx,
as trustee for Xxxxxxx Xxxxxxxxxx Children's Trust
/s/ Xxxxxx X. XxXxxxxxx
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Xxxxxx X. XxXxxxxxxx,
as trustee for Xxxx Xxxxxxxxxx Children's Trust
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SCHEDULE A
Number of shares of Number of options to purchase
Stockholder and Address Company Common Stock* Company Common Stock*
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Xxxxx X. Xxxxxxx 324,270
Xxxxxx Xxxxxxx 375,380
Xxxxxxx X. Xxxxxxxxx 49,248 164,365
Xxxxxxx X. X'Xxxxx, Xx. 30,239 28,740
Xxxxxx Xxxxxx 4,000 100,000
Xxxx XxXxxx Children's Trust 56,580
Xxxx XxXxxx Children's Trust 56,580
Xxxx XxXxxx Children's Trust 56,580
Xxxx Xxxxxxxxxx Children's 57,440
Trust
Xxxxxxx Xxxxxxxxxx 57,440
Children's Trust
Xxxx Xxxxxxxxxx Children's 57,440
Trust
*or such greater amount as
they may otherwise own as
of the date hereof
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SCHEDULE B
LIENS
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Xxxxx Xxxxxxx -- All of his shares are held in an account at BT Alex. Xxxxx,
which has given Xxxxx Xxxxxxx a margin loan of $750,000.
Xxxxxx Xxxxxxx -- 100,000 shares at Xxxxxxx Xxxxx.
167,000 shares at Mercantile bank.
Xxxxxx Xxxxxxx has approximately $2,000,000 in outstanding
indebtedness on the basis of the deposit of such shares.
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