VOTING AGREEMENT
Exhibit 99.1
VOTING
AGREEMENT, dated as of May 22, 2008 (this “Agreement”), by and between
Clothesline Holdings, Inc., a Delaware corporation (“Parent”), and Steel Partners
II, L.P. (the “Stockholder”), a shareholder
of Xxxxxxxx Corporation, a Missouri corporation (the “Company”). Unless otherwise
indicated, capitalized terms not defined herein have the meanings given to them
in the Merger Agreement.
WITNESSETH:
WHEREAS,
concurrently with the execution of this Agreement, Parent, Clothesline
Acquisition Corporation, a Missouri corporation (“Merger Sub”), and the Company
are entering into an Agreement and Plan of Merger (the “Merger Agreement”), pursuant
to which Merger Sub will be merged with and into the Company and the Company will be the surviving corporation in
the merger and will be a wholly owned subsidiary of Parent, all upon the
terms and subject to the conditions set forth in the Merger Agreement (the
“Merger”);
WHEREAS,
as of the date hereof, the Stockholder is a shareholder of the
Company and, with respect to the Merger, has the power to vote or direct the
voting of 1,792,770 shares of the common
stock, par value $1.00 per share, of the Company beneficially owned (as defined
under Rule 13d-3 of the Exchange Act) by the Stockholder, which represent all of
the shares of common stock of the Company owned by the Stockholder as of the
date hereof (collectively, the “Shares” and, together with any
additional securities of the Company described in Section 1.2, being referred to
herein as the “Subject
Shares”);
WHEREAS,
prior to the date hereof, the Board of Directors of the Company (the “Company Board”) has approved
this Agreement and the transactions contemplated hereby; and
WHEREAS,
as a material inducement to enter into the Merger Agreement and to consummate
the Merger, Parent desires the Stockholder to agree, and the Stockholder is
willing to agree (i) subject to the terms of this Agreement, including, without
limitation, Section 6 of this Agreement, to Vote (as defined in Section 1.1(b)
below) or cause to be Voted the Subject Shares in favor of the Merger and so as
to facilitate the consummation of the Merger and (ii) to comply in all respects
with all of the terms of this Agreement.
NOW,
THEREFORE, for good and valuable consideration, the receipt, sufficiency and
adequacy of which is hereby acknowledged, and intending to be legally bound, the
parties agree as follows:
1. Voting of Subject
Shares.
Section
1.1 Voting
Agreement.
(a) At
every meeting of the shareholders of the Company called with respect to any of
the following, and at every adjournment or postponement thereof, and on every
action or approval by written consent of the shareholders of the Company with
respect to any of the following, the Stockholder shall Vote or cause to be Voted
the Subject Shares in favor of the authorization and approval of the Merger
Agreement, the Merger and each of the other transactions contemplated thereby
and any other action necessary for the consummation
thereof. Furthermore, the Stockholder shall not enter into any
agreement, arrangement or understanding with any Person to Vote or give
instructions inconsistent with this Section 1.1(a), and shall not take any other
action that would, or would reasonably be expected to, in any manner compete
with, interfere with, impede, frustrate, prevent, burden, delay or nullify the
Merger, the Merger Agreement or any of the other transactions contemplated by
the Merger Agreement; provided, however, that the foregoing shall not prevent
the Stockholder from engaging in Permitted Open Market Transactions and
Permitted Private Transactions (each as defined below).
(b) In
addition to the foregoing, at any meeting of the Company shareholders or at any
adjournment or postponement thereof or in any other circumstances upon which
their Vote, consent or other approval is sought, the Stockholder shall Vote (or
cause to be Voted) all of the Subject Shares against (i) the approval of any
Acquisition Proposal or the authorization of any agreement relating to any
Acquisition Proposal or (ii) any amendment of the Company’s Certificate of
Incorporation or Bylaws or any other action, agreement, proposal or transaction
involving the Company or any of its Subsidiaries which amendment or other
action, agreement, proposal or transaction would, or would reasonably be
expected to, result in a breach of any covenant, representation or warranty or
any other obligation or agreement of (x) the Company contained in the Merger
Agreement that is reasonably likely to result in any of the conditions to
Parent’s or the Merger Sub’s obligations under the Merger Agreement not to be
fulfilled or (y) the Stockholder contained in this Agreement or would, or would
reasonably be expected to, in any material manner compete with, interfere with,
impede, frustrate, prevent, burden, delay or nullify the Merger, the Merger
Agreement or any of the other transactions contemplated by the Merger
Agreement. For purposes of this Agreement, “Vote” shall mean voting in
person or by proxy in favor of or against any action, otherwise consenting or
withholding consent in respect of any action or taking other action in favor of
or against any action; “Voting” and “Voted” shall have correlative
meanings. Any such Vote shall be cast or consent shall be given for
purposes of this Section 1 in accordance with such procedures relating thereto
as shall ensure that it is duly counted for purposes of determining that a
quorum is present and for purposes of recording in accordance herewith the
results of such Vote or consent.
Section
1.2 Adjustments; Additional
Shares. In the event (a) of any stock dividend, stock split,
recapitalization, reclassification, subdivision, combination or exchange of
shares on, of or affecting the Shares (or any Subject Shares acquired by the
Stockholder after the date hereof), or (b) that the Stockholder shall have
become the beneficial owner of any additional shares of common stock or other
securities of the Company, then all shares of common stock or other securities
of the Company held by the Stockholder immediately following the effectiveness
of the events described in clause (a) or the Stockholder becoming the beneficial
owner of the shares or other securities as described in clause (b), shall in
each case become Subject Shares hereunder.
Section
1.3 Waiver
of Appraisal Rights. The Stockholder hereby irrevocably and
unconditionally waives any rights of appraisal, dissenters’ rights or similar
rights that the Stockholder may have in connection with the Merger.
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2. Transfer Restrictions and
Obligations.
Section
2.1 Lock-Up. After the
execution of this Agreement until the Expiration Date, the Stockholder will
not:
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(a)
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sell,
transfer, exchange, pledge, assign, hypothecate, encumber, tender 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 the Company or
any other Person or enter into any contract, option or other agreement,
arrangement or understanding with respect to the Transfer of, directly or
indirectly, any of the Subject Shares or any securities convertible into
or exercisable or exchangeable for Subject Shares, any other capital stock
of the Company or any interest in any of the foregoing with any Person, or
join in any registration statement under the Securities Act with respect
to any of the foregoing;
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(b)
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enter
into any swap or other agreement or any transaction that transfers, in
whole or in part, directly or indirectly, the economic consequence of
ownership of Subject Shares; or
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(c)
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create
or permit to exist any liens, claims, options, charges or other
encumbrances on or otherwise affecting any of the Subject Shares that will
be in effect as of Effective Time;
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provided,
however, that nothing in this Section 2.1 shall restrict the Stockholder from
(i) engaging in open market sales (which, for the avoidance of doubt, shall not
include sales effected over an exchange to an identifiable buyer who has
publicly disclosed, or who the Stockholder knows plans or intends to make, an
Acquisition Proposal (an “Acquiring Person”)) of any shares of common stock
(including any Shares) of the Company with broker dealers in the ordinary course
of business after the record date for the shareholder vote to approve the Merger
(a “Permitted Open Market Transaction”) or (ii) selling any shares of common
stock (including any Shares) of the Company in a private transaction to a Person
(other than an Acquiring Person) who agrees to be bound by this Agreement (a
“Permitted Private Transaction”)
Section
2.2 Other
Obligations. After the execution of this Agreement until the
Expiration Date, the Stockholder agrees (a) not to, and not to authorize or
permit any investment banker, attorney or other advisor or representative of the
Stockholder to, directly or indirectly, solicit, initiate, encourage or
facilitate, or furnish or disclose non-public information in furtherance of, any
inquiries or the making of any proposal or offer with respect to any Acquisition
Proposal, or negotiate, explore or otherwise engage in discussions with any
Person with respect to any Acquisition Proposal, or approve, endorse or
recommend any Acquisition Proposal, or enter into any agreement, arrangement or
understanding with respect to any Acquisition Proposal, and (b) not to take any
action which would make any representation or warranty of the Stockholder herein
untrue or incorrect in any material respect. The Stockholder shall
notify Parent promptly (but in any event within two (2) Business Days) of any
such inquiries, proposals or offers received by, or any such discussions or
negotiations sought to be initiated or continued with, the Stockholder or any of
its Representatives, indicating the name of such Person and providing to Parent
a summary of the material terms of such proposal or offer for an Acquisition
Proposal.
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3. Representations and
Warranties of the Stockholder.
Section
3.1 Ownership of
Shares. As of the date hereof, the Stockholder represents and
warrants that the Stockholder (a) is the beneficial owner of and has the sole
right to Vote or direct the Voting of the Shares owned by the Stockholder with
respect to the authorization and approval of the Merger Agreement and the terms
thereof, and (b) does not beneficially own any shares of capital stock of the
Company other than such Shares.
Section
3.2 No
Conflict. The execution and delivery of this Agreement by the
Stockholder does not, and the performance of this Agreement by the Stockholder
will not: (a) result in or constitute a violation of, or constitute a default
(with or without notice or lapse of time, or both) under, or give rise to a
right of termination, amendment, cancellation or acceleration of any obligation
or the loss of a material benefit under, or the creation of a Lien on any assets
of the Stockholder (any such conflict, violation, default, right of termination,
amendment, cancellation or acceleration, loss or creation, a “Violation”)
pursuant to any obligation, instrument, permit, concession, franchise, license,
judgment, order, decree, statute, law, ordinance, rule or regulation applicable
to the Stockholder or by which the Stockholder or any of the Stockholder’s
properties are bound or affected; or (b) result in or constitute a Violation of,
or result in the creation of a Lien on or otherwise affecting any of the Subject
Shares owned by the Stockholder pursuant to, any contract to which the
Stockholder is a party or by which the Stockholder or any of the Stockholder’s
properties are bound or affected. The execution and delivery of this
Agreement by the Stockholder does not, and the performance of its obligations
under this Agreement by the Stockholder will not, require any consent of any
Person or any Governmental Entity.
Section
3.3 Enforceability. The
Stockholder has all requisite partnership power and authority to execute and
deliver this Agreement and to perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution,
delivery and performance by the Stockholder of this Agreement and the
consummation by it of the transactions contemplated hereby have been duly and
validly authorized and no other actions or proceedings by the Stockholder are
necessary to authorize the executions and delivery by the Stockholder of this
Agreement and the consummation by the Stockholder of the transactions
contemplated hereby. This Agreement has been duly executed and
delivered by the Stockholder and, assuming the due authorization, execution and
delivery of this Agreement by Parent, constitutes the legal, valid and binding
obligations of the Stockholder, enforceable against the Stockholder in
accordance with its terms, subject to (a) laws of general application relating
to bankruptcy, insolvency and the relief of debtors and (b) rules of law
governing specific performance, injunctive relief and other equitable
remedies.
Section
3.4 Consent
and Waiver. No consents or waivers are required for the consummation of
the Merger under the terms of (a) any agreements between the Stockholder (or any
of its affiliates) and the Company (or any of its Subsidiaries) or (b) other
rights that the Stockholder (or any of its affiliates) may have, except for such
consents and waivers as will be obtained prior to the Effective
Time. No consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental Entity or expiry of
any related waiting period is required by or with respect to the Stockholder in
connection with (i) the execution and delivery of this Agreement by the
Stockholder, (ii) the execution and delivery of the Merger Agreement by the
Company or (iii) the consummation of the Merger and the other transactions
contemplated hereby and thereby, except for filings by the Stockholder on
Schedule 13D under the Exchange Act.
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Section
3.5 Absence
of Litigation. There is no suit, action, investigation or
proceeding pending or, to the knowledge of the Stockholder, threatened against
the Stockholder before or by any Governmental Entity that could reasonably be
expected to impair the ability of the Stockholder to perform its obligations
hereunder or to consummate the transactions contemplated hereby on a timely
basis.
Section
3.6 No
Prior Agreements. The Stockholder represents and warrants that
no agreement, arrangement or understanding by and between the Stockholder and
Parent with respect to the subject matter contained herein existed prior to the
approval of this Agreement by the Company Board.
4. Representations and
Warranties of Parent. Parent has all requisite corporate power
and authority to execute and deliver this Agreement and to perform its
obligations hereunder and to consummate the transactions contemplated
hereby. The execution, delivery and performance by Parent of this
Agreement and the consummation by it of the transactions contemplated
hereby have been duly and validly authorized and no other actions or proceedings
by Parent are necessary to authorize the execution and delivery by Parent of
this Agreement and the consummation of the transactions contemplated
hereby. This Agreement has been duly executed and delivered by Parent
and, assuming the due authorization, execution and delivery of this Agreement by
the Stockholder, constitutes the legal, valid and binding obligations of Parent,
enforceable against Parent in accordance with its terms, subject to (i) laws of
general application relating to bankruptcy, insolvency and the relief of debtors
and (ii) rules of law governing specific performance, injunctive relief and
other equitable remedies.
5. Covenants of the
Stockholder. The Stockholder hereby covenants and agrees to
cooperate fully with Parent and to execute and deliver any additional documents
reasonably necessary or desirable and to take such further actions, in the
reasonable opinion of Parent, reasonably necessary or desirable to carry out the
intent of this Agreement.
6. Termination. This
Agreement shall terminate automatically upon and shall have no further force or
effect after the earliest to occur of (a) the Effective Time and (b) the date on
which the Merger Agreement has been terminated in accordance with its terms (the
“Expiration Date”). Upon such termination, no party shall have any
further obligations or liabilities hereunder; provided, however, such
termination shall not relieve any party from liability for any willful breach of
this Agreement prior to such termination.
7. Miscellaneous.
Section
7.1 Fees
and Expenses. All costs and expenses incurred in connection
with this Agreement shall be paid by the party incurring such
expenses.
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Section
7.2 Amendments and
Modification. This Agreement may not be amended, modified, or
supplemented except upon the execution and delivery of a written agreement
executed by the parties hereto.
Section
7.3 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 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 third 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:
if to
Parent, to:
c/x
Xxxxxx Brothers Merchant Banking
000 Xxxx
Xxxxxx, 0xx Xxxxx
Xxx Xxxx,
XX 00000
Attn: Xxx
X. Xxxxxxx
Telecopy
No.: (000) 000-0000
with a
copy (for informational purposes only) to:
White
& Case LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx,
XX 00000
Attn: Xxxxxxx
X. Xxxxx Xx.
Telecopy
No.: (000) 000-0000
and
Xxxxxx
Brothers Merchant Banking
000 Xxxx
Xxxxxx, 0xx Xxxxx
Xxx Xxxx,
XX 00000
Attn: Xxxxxx
X. Xxx
Telecopy
No.: (000) 000-0000
And
if to the
Stockholder, to:
Steel
Partners II, L.P.
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx,
XX 00000
Attn:
Xxxxxx X. Xxxxxxxxxxxx
Telecopy
No.: (000) 000-0000
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with a
copy (for informational purposes only) to:
Xxxxxx
Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx LLP
Park
Avenue Tower
00 Xxxx
00xx Xxxxxx
Xxx Xxxx,
XX 00000
Attn:
Xxxxx Xxxxxxx
Telecopy
No.: (000) 000-0000
Section
7.4 Counterparts. This
Agreement may be executed in one or more counterparts (whether delivered by
facsimile or otherwise), each of which shall be considered one and the same
agreement.
Section
7.5 Entire
Agreement. This Agreement and the documents and the
instruments referred to herein constitute the entire agreement between the
parties with respect to the subject matter hereof. The parties
acknowledge and agree that there were no prior agreements, arrangements or
understandings, either written or oral, between the parties with respect to the
subject matter hereof.
Section
7.6 Severability. The
provisions of this Agreement shall be deemed severable and the invalidity or
unenforceability of any provision shall not affect the validity or
enforceability or the other provisions hereof. If any provision of
this Agreement, or the application thereof to any Person or any circumstance, is
invalid or unenforceable, (a) a suitable and equitable provision shall be
substituted therefor in order to carry out, so far as may be valid and
enforceable, the intent and purpose of such invalid or unenforceable provision
and (b) the remainder of this Agreement and the application of such
provision to other Persons or circumstances shall not be affected by such
invalidity or unenforceability, nor shall such invalidity or unenforceability
affect the validity or enforceability of such provision, or the application
thereof, in any other jurisdiction.
Section
7.7 Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to the conflict
of laws principles thereof to the extent that the general application of the
laws of another jurisdiction would be required thereby.
Section
7.8 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 or were otherwise breached. It is accordingly agreed
that the parties shall be entitled to seek an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and
provisions of this Agreement exclusively in any state or federal court located
within the County of New York and any appellate court thereof, this being in
addition to any other remedy to which they are entitled at law or in
equity. In addition, each of the parties (a) consents to submit
itself to the exclusive personal jurisdiction of the aforesaid courts in the
event any dispute arises out of this Agreement or any of the transactions
contemplated thereby and (b) agrees that it will not attempt to deny or defeat
such personal jurisdiction by motion or other request for leave from any such
court. PARENT AND THE STOCKHOLDER EACH IRREVOCABLY AND
UNCONDITIONALLY WAIVE ANY RIGHT THEY MAY HAVE TO TRIAL BY JURY IN CONNECTION
WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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Section
7.9 Extension,
Waiver. At any time prior to the Expiration Date, the parties
to this Agreement may (a) extend the time for the performance of any of the
obligations or other acts of the other party to this Agreement, (b) waive any
inaccuracies in the representations and warranties of the other party contained
in this Agreement or in any document delivered pursuant to this Agreement or (c)
waive compliance by the other party with any of the agreements or conditions
contained in this Agreement. Any agreement on the part of a party to
any such extension or waiver shall be valid only if set forth in an instrument
in writing signed on behalf of such party. The failure of any party
to this Agreement to assert any of its rights under this Agreement or otherwise
shall not constitute a waiver of those rights.
Section
7.10 Assignment. Neither
this Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by any of the parties to this Agreement (whether by operation of law
or otherwise) without the prior written consent of the other party to this
Agreement. Subject to the preceding sentence, this Agreement will be
binding upon, inure to the benefit of and be enforceable by the parties and
their respective successors and assigns. Without limiting any of the
restrictions set forth in Section 2 or elsewhere in this Agreement, this
Agreement shall be binding upon any Person to whom any Subject Shares are
transferred, other than in a Permitted Open Market Transaction, prior to the
termination of this Agreement.
Section
7.11 Effect
of Headings. The Section headings herein are for convenience
only and shall not affect the construction or interpretation of this
Agreement.
Section
7.12 Cooperation. If
any notices, approvals or filings are required with any Governmental Entity in
order to allow the parties hereto to effectively carry out the transactions
contemplated by this Agreement, the Stockholder and Parent shall cooperate in
making such notices or filings or in obtaining such approvals.
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IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed on
the date and year first above written.
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CLOTHESLINE
HOLDINGS, INC.
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By:
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/s/ Li Zhang |
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Name:
Li Zhang
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Title:
Director
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STEEL
PARTNERS II, L.P.
By:
Steel Partners II GP LLC, its General Partner
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By:
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/s/ Xxxxxx X. Xxxxxxxxxxxx |
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Name:
Xxxxxx X. Xxxxxxxxxxxx
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Title:
Managing Member
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[Signature Page – Voting
Agreement]
