Exhibit 2
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement"), dated as of June 27, 2001,
among TEREX CORPORATION, a Delaware corporation ("Parent"), CLAUDIUS
ACQUISITION CORP., an Oklahoma corporation and a direct wholly owned
subsidiary of Parent ("Merger Sub"), CMI CORPORATION, an Oklahoma
corporation (the "Company"), and RECOVERY EQUITY INVESTORS, L.P., a
Delaware limited partnership ("REI").
W I T N E S S E T H:
WHEREAS, Parent, Merger Sub and the Company are executing an Agreement
and Plan of Merger, dated as of the date hereof (the "Merger Agreement"),
which provides for, among other things, the merger of Merger Sub with and
into the Company and the exchange of all shares of Company Common Stock
outstanding immediately prior to the Effective Time for the Merger
Consideration.
WHEREAS, pursuant to Sections 1081 and 1082 of the OGCA and the
Certificate of Incorporation, the vote of a majority of the outstanding
shares of Company Common Stock is required to adopt the Merger Agreement
and approve the Merger and the other transactions contemplated by the
Merger Agreement.
WHEREAS, REI is the beneficial and record owner and has the sole power
to direct the vote of 7,116,667 shares of Company Common Stock (such shares
together with any shares of Company Common Stock subsequently acquired by
REI, the "REI Securities").
WHEREAS, in order to induce Parent and Merger Sub to enter into the
Merger Agreement and for other good and valuable consideration, Parent,
Merger Sub, the Company and REI are entering into this Agreement pursuant
to which REI agrees to vote the Subject Securities (as defined below) in
favor of the adoption and approval of the Merger Agreement, the Merger and
the transactions contemplated by the Merger Agreement.
NOW, THEREFORE, in consideration of the promises and the respective
representations, warranties, covenants and agreements set forth herein, the
parties agree as follows:
1. Definitions. All capitalized terms, unless otherwise defined
herein, shall have the meaning ascribed to such terms in the Merger
Agreement.
2. Agreement to Vote. REI hereby irrevocably agrees that, from
and after the date hereof until the Expiration Date (as defined below), at
any annual, special or any other meeting of the shareholders of the Company
(or adjournment or postponement thereof), however called or in respect of
which REI is or may be entitled to act by written consent, REI shall vote
(or cause to be voted) all of the REI Securities and any other shares of
Company Common Stock, that pursuant to any voting trust agreement or other
contract, agreement, arrangement, commitment or understanding, REI may
direct the vote thereof with respect to matters similar to those set forth
in the following clauses (i) and (ii) (such shares, the "Other Securities"
and together with the REI Securities, the "Subject Securities"), (i) in
favor of adoption and approval of the Merger Agreement, the Merger and the
transactions contemplated by the Merger Agreement and (ii) except as
otherwise agreed to in writing in advance by Parent, against (a) any
extraordinary corporate transaction, such as a merger, consolidation or
other business combination involving the Company (other than the Merger and
the transactions contemplated by the Merger Agreement), (b) a sale, lease
or transfer of all or substantially all of the assets of the Company, or
(c) a reorganization, recapitalization, dissolution or liquidation of the
Company. REI shall not enter into any agreement or understanding with any
Person prior to the Expiration Date to vote in any manner inconsistent
herewith. In furtherance of the transactions contemplated hereby, on the
date hereof, REI will execute and deliver to Parent an irrevocable proxy in
the form of Exhibit A hereto (the "Proxy") and irrevocably appoint Parent
or its designees, its attorney-in-fact and proxy to vote all of the Subject
Securities to the extent provided in the Proxy, with full power of
substitution. REI acknowledges that the Proxy (a) shall be coupled with an
interest, (b) constitutes, among other things, an inducement for Parent and
Merger Sub to enter into the Merger Agreement, and (c) shall be irrevocable
and shall not be terminated upon the occurrence of any event; provided that
the Proxy shall terminate upon the Expiration Date. REI hereby revokes all
other proxies and powers of attorney with respect to the Subject Securities
that it may have heretofore appointed or granted, and no subsequent proxy
or power of attorney shall be granted (and if granted, shall not be
effective) by REI prior to the Expiration Date with respect thereto.
3. Further Agreements of REI.
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(a) REI hereby agrees, while this Agreement is in effect, and
except as contemplated hereby, not to (i) sell, transfer, pledge,
hypothecate, encumber, assign or otherwise dispose of, enforce or permit
the execution of the provisions of any redemption agreement with the
Company or enter into any contract, option or other arrangement or
understanding with respect to or consent to the offer for sale, sale,
transfer, pledge, hypothecation, encumbrance, assignment or other
disposition of, the Subject Securities, or any interest in any of the
foregoing, except to Parent, or (ii) grant any proxies or powers of
attorney, deposit any of the Subject Securities into a voting trust or
enter into a voting agreement with respect to any of the Subject
Securities, or any interest in any of the foregoing, except to Parent or in
accordance with this Agreement.
(b) REI hereby irrevocably waives any appraisal or dissenters
rights that REI may have in connection with the Merger.
(c) Neither REI, nor any of its partners, employees, agents,
affiliates, accountants, counsel, investment bankers, financial advisors or
other representatives shall (i) directly or indirectly, initiate, solicit
or encourage, or take any action to facilitate the making of, any Takeover
Proposal, (ii) directly or indirectly engage in any discussions or
negotiations with, or provide any information or data to or otherwise
assist, facilitate or encourage, any person (other than Parent) in
connection with any Takeover Proposal or (iii) approve any letter of
intent, agreement in principle, acquisition agreement or similar agreement
relating to any Takeover Proposal. From and after the date hereof, REI and
all representatives of REI shall cease any activities with respect to the
foregoing.
(d) REI hereby irrevocably waives the applicability of Section
4.2 of that certain Investment Agreement, dated as of August 19, 1991,
between REI and the Company (the "Investment Agreement") to the issuance of
Company Common Stock pursuant to Section 3 of the Miscellaneous Agreement;
provided that such waiver shall terminate on the Expiration Date.
(e) Prior to or at the Effective Time, REI agrees to enter into
agreements to terminate, as of the Effective Time, (i) the Investment
Agreement, (ii) that certain Shareholders Agreement, dated as of August 19,
1991, among REI, the Company, Xxxxxx Xxxxxxx Xxxxxxx, Xx. and certain other
parties and (iii) that certain Registration Rights Agreement, dated as of
August 19, 1991, between the Company and REI.
4. Representations and Warranties of Parent and Merger Sub.
Parent and Merger Sub hereby represent and warrant as follows:
(a) Organization and Good Standing. Parent and Merger Sub are
corporations duly organized, validly existing and in good standing under
the laws of the States of Delaware and Oklahoma, respectively.
(b) Authorization; Binding Agreement. Parent and Merger Sub each
have all requisite corporate power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated hereby. This
Agreement, the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and
validly authorized by the Board of Directors of each of Parent and Merger
Sub and by Parent in its capacity as sole stockholder of Merger Sub, and no
other corporate proceedings on the part of Parent or Merger Sub are
necessary to authorize the execution and delivery of this Agreement or to
consummate the transactions contemplated hereby. This Agreement has been
duly and validly executed and delivered by each of Parent and Merger Sub
and, assuming the due authorization, execution and delivery of this
Agreement by the Company and REI, constitutes the legal, valid and binding
agreement of Parent and Merger Sub, enforceable against Parent and Merger
Sub in accordance with its terms.
(c) No Conflicts. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby and compliance
by each of Parent and Merger Sub with any of the provisions hereof will not
(i) conflict with or result in any breach of any provision of the
certificates of incorporation or bylaws of Parent or Merger Sub, (ii)
require any Consent under or result in a violation or breach of, or
constitute (with or without due notice or lapse of time or both) a default
(or give rise to any right of termination, cancellation or acceleration or
augment the performance required) under any of the terms, conditions or
provisions of any material obligation to which Parent or Merger Sub is a
party or by which any of them or any of their properties or assets may be
bound, (iii) result in the creation or imposition of any Lien upon any of
the assets of Parent or Merger Sub, or (iv) conflict with or violate any
applicable provision of any Law currently in effect to which Parent or
Merger Sub or any of their respective assets or properties are subject.
5. Representations and Warranties of REI. REI hereby represents
and warrants as follows:
(a) Organization and Good Standing. REI is a limited partnership
duly organized, validly existing and in good standing under the laws of the
State of Delaware.
(b) Authorization; Binding Agreement. REI has all requisite power
and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. This Agreement, the execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized and no other
proceedings on the part of REI are necessary to authorize the execution and
delivery of this Agreement or to consummate the transactions contemplated
hereby. This Agreement has been duly and validly executed and delivered by
REI and, assuming the due authorization, execution and delivery of this
Agreement by Parent, Merger Sub and the Company, constitutes the legal,
valid and binding agreement of REI, enforceable against REI in accordance
with its terms.
(c) No Conflicts. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby and compliance
by REI with any of the provisions hereof will not (i) conflict with or
result in any breach of any provision of the organizational documents of
REI, (ii) require any Consent under or result in a violation or breach of,
or constitute (with or without due notice or lapse of time or both) a
default (or give rise to any right of termination, cancellation or
acceleration or augment the performance required) under any of the terms,
conditions or provisions of any material obligation to which REI is a party
or by which it or any of its properties or assets may be bound, (iii)
result in the creation or imposition of any Lien upon any of the assets of
REI, or (iv) conflict with or violate any applicable provision of any Law
currently in effect to which REI or its assets or properties are subject.
(d) Ownership of Securities; Voting Rights. REI owns, of record
and beneficially, the REI Securities. REI has sole voting power with
respect to the Subject Securities. Except (i) pursuant to this Agreement,
and (ii) as otherwise restricted pursuant to Section 3 of that certain
Shareholders Agreement, dated as of August 19, 1991, among REI, the
Company, Xxxxxx Xxxxxxx Xxxxxxx, Xx. and certain other parties, the REI
Securities are not subject to any voting trust agreement or other contract,
agreement, arrangement, commitment or understanding restricting or
otherwise relating to the voting, dividend rights or disposition of the REI
Securities. The Other Securities are not subject to any voting trust
agreement or other contract, agreement, arrangement, commitment or
understanding restricting or otherwise relating to the voting, dividend
rights or disposition of the Other Securities that would prevent or
restrict REI from voting the Other Securities in accordance with this
Agreement.
(e) Good Title. Upon consummation of the Merger, Parent will
receive good, valid and marketable title to the REI Securities, free and
clear of all security interests, liens, claims, pledges, options, rights of
first refusal, agreements, limitations on Parent's voting rights, charges
and other encumbrances of any nature whatsoever.
(f) Finders and Investment Bankers. Neither REI nor any of its
general or limited partners has employed any broker or finder or incurred
any liability for any brokerage fees, commissions or finders' fees in
connection with the transactions contemplated hereby.
6. Representations and Warranties of the Company. The Company
hereby represents and warrants as follows:
(a) Organization and Good Standing. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Oklahoma.
(b) Authorization; Binding Agreement. The Company has all
requisite corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. This
Agreement, the execution and delivery of this Agreement, and the
consummation of the transactions contemplated hereby, have been duly and
validly authorized by the Board of Directors of the Company, and no other
corporate proceedings on the part of the Company are necessary to authorize
the execution and delivery of this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by the Company and, assuming the due authorization,
execution and delivery of this Agreement by Parent, Merger Sub and REI,
constitutes the legal, valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms.
(c) No Conflicts. Except as set forth on the Company Disclosure
Schedule to the Merger Agreement, the execution and delivery of this
Agreement, the consummation by the Company of the transactions contemplated
hereby and compliance by the Company with any of the provisions hereof will
not (i) conflict with or result in any breach of any provision of the
Certificate of Incorporation or Bylaws, (ii) require any Consent under or
result in a violation or breach of, or constitute (with or without due
notice or lapse of time or both) a default (or give rise to any right of
termination, cancellation or acceleration or augment the performance
required) under any of the terms, conditions or provisions of any Material
Contract or other material obligation to which the Company is a party or by
which it or any of its properties or assets may be bound, (iii) result in
the creation or imposition of any Lien upon any of the assets of the
Company, or (iv) conflict with or violate any applicable provision of any
Law currently in effect to which the Company or its assets or properties
are subject.
(d) Finders and Investment Bankers. Neither the Company nor any
of its officers or directors has employed any broker or finder or incurred
any liability for any brokerage fees, commissions or finders' fees in
connection with the transactions contemplated hereby (other than pursuant
to the agreements with Credit Suisse First Boston Corporation).
7. Termination. This Agreement shall terminate on the earlier of
(a) the Effective Time or (b) the termination of the Merger Agreement (the
date on which this Agreement terminates, the "Expiration Date").
8. Miscellaneous.
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8.1. Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns; provided that no party
may assign, delegate or otherwise transfer any of its rights or obligations
under this Agreement without the consent of the other parties hereto.
8.2. Amendments; No Waivers. Any provision of this Agreement
may be amended or waived if, and only if, such amendment or waiver is in
writing and signed, in the case of an amendment, by the Company, Parent and
Merger Sub and REI, or in the case of a waiver, by the party against whom
the waiver is to be effective.
8.3. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including facsimile or similar
writing) and shall be given,
if to Parent or Merger Sub, to:
Terex Corporation
000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxx X Xxxxx, Senior Vice President, Secretary
and General Counsel
Facsimile No.: (000) 000-0000
with a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxxx, Esq.
Xxxxxx X. Xxxxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
if to the Company, to:
CMI Corporation
X-00 & Xxxxxx Xxxx
X.X. Xxx 0000
Xxxxxxxx Xxxx, XX 00000
Attention: Xxx X. Xxxxxxx, Senior Vice President, Treasurer
and Chief Financial Officer
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxx Xxxxx & Xxxxxxx
000 Xxxxxx X. Xxxx Xxx., Xxxxx 0000
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxx, Esq.
Xxxxxx Xxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
if to REI, to:
000 Xxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxx, Xxxxx & Bockius LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
or such other address or facsimile number as such party may hereafter
specify for the purpose by notice to the other parties. Each such notice,
request or other communication shall be effective (a) if given by
facsimile, when such facsimile is transmitted to the facsimile number
specified in this Section 8.3 and the appropriate facsimile confirmation is
received or (b) if given by any other means, when delivered at the address
specified in this Section 8.3.
8.4. Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of Delaware, without
regard to principles of conflict of laws.
8.5. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction
or other authority to be invalid, void or unenforceable, 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 so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such a determination, the parties 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 in order that the transactions contemplated hereby be consummated as
originally contemplated to the fullest extent possible.
8.6. Counterparts; Effectiveness. This Agreement may be
signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the
same instrument. This Agreement shall become effective when each party
hereto shall have received counterparts hereof signed by all of the other
parties hereto.
8.7. Fees and Expenses. Except as otherwise provided in the
Merger Agreement, all costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be borne by the
party incurring such expenses.
8.8. Jurisdiction. Any suit, action or proceeding seeking to
enforce any provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated hereby or
thereby may be brought in any federal or state court located in the State
of Delaware, and each of the parties hereby consents to the jurisdiction of
such courts (and of the appropriate appellate courts therefrom) in any such
suit, action or proceeding and irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding in any such
court or that any such suit, action or proceeding which is brought in any
such court has been brought in an inconvenient forum. Process in any such
suit, action or proceeding may be served on any party anywhere in the
world, whether within or without the jurisdiction of any such court.
8.9. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
8.10. Captions. The captions herein are included for
convenience of reference only and shall be ignored in the construction or
interpretation hereof.
8.11. Specific Performance. Each party acknowledges and
agrees that the other parties could be irreparably damaged in the event
that its obligations contained in this Agreement are not performed in
accordance with their specific terms or are otherwise breached in each case
on or prior to the Expiration Date. Accordingly, each party agrees that
each other party will be entitled to an injunction or injunctions to
enforce specifically any covenants in any action in any court having
personal and subject matter jurisdiction, in addition to any other remedy
to which that party may be entitled at law or in equity.
8.12. Shareholder Capacity. Nothing in this Agreement,
including without limitation Section 3(c) hereof, shall limit or restrict
any affiliate or designee of REI who serves as a member of the Board of
Directors of the Company in acting in his or her capacity as a director of
the Company and exercising his or her fiduciary duties and
responsibilities, it being understood that this Agreement shall apply to
REI solely in its capacity as a shareholder of the Company and shall not
apply to any such affiliate or designee's actions, judgments or decisions
as a director of the Company.
IN WITNESS WHEREOF, the Company, Parent, Merger Sub and REI have
caused this Agreement to be duly executed as of the day and year first
above written.
TEREX CORPORATION
By: /s/ Xxxx X Xxxxx
-----------------------------------
Name: Xxxx X Xxxxx
Title: Senior Vice President
CMI CORPORATION
By: /s/ Xxx X. Xxxxxxx
-----------------------------------
Name: Xxx X. Xxxxxxx
Title: Senior Vice President
CLAUDIUS ACQUISITION CORP.
By: /s/ Xxxx X Xxxxx
-----------------------------------
Name: Xxxx X Xxxxx
Title: Vice President
RECOVERY EQUITY INVESTORS, L.P.
By: RECOVERY EQUITY PARTNERS, L.P.,
its General Partner
By: /s/ Xxxxxx X. Xxxx-Xxxx
-----------------------------------
Name: Xxxxxx X. Xxxx-Xxxx
Title: General Partner
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: General Partner
EXHIBIT A
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IRREVOCABLE PROXY
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Pursuant to the Voting Agreement, dated as of June 27, 2001,
among Terex Corporation, a Delaware corporation ("Parent"), Claudius
Acquisition Corp., an Oklahoma corporation, and a direct wholly owned
subsidiary of Parent ("Merger Sub"), CMI Corporation, an Oklahoma
corporation (the "Company"), and the undersigned (the "Voting Agreement"),
the undersigned hereby irrevocably appoints, subject to the proviso to this
sentence, designees of Parent, the attorneys, agents and proxies, with full
power of substitution, for the undersigned and in the name, place and stead
of the undersigned to vote in such manner as such attorneys, agents and
proxies or their substitutes shall in their sole discretion deem proper and
otherwise act, including the execution of written consents, with respect to
all voting securities (the "Securities") of the Company, which the
undersigned is or may be entitled to vote with respect to the Specified
Issues (as defined below), whether such vote shall take place at an annual
or special meeting of the Company or whether or not at an adjourned or
postponed meeting, or in respect of which the undersigned is or may be
entitled to act by written consent; provided, however, that (a) with
respect to any of the actions described in clause (i) of the next
succeeding sentence, such designees (and any substitutes thereof) are so
appointed only to vote in favor of any such actions, and (b) with respect
to any of the actions described in clause (ii) of the next succeeding
sentence, such designees (and any substitutes thereof) are so appointed
only to vote against any such actions. For purposes hereof, "Specified
Issues" shall mean a vote concerning (i) the adoption and approval of the
Agreement and Plan of Merger dated as of June 27, 2001 among Parent, the
Company and Merger Sub (the "Merger Agreement") and the merger pursuant
thereto and approval of the terms thereof and each of the other actions
contemplated by the Merger Agreement and (ii) any of the following actions
(other than the Merger and the transactions contemplated by the Merger
Agreement): (a) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving the Company; and (b)
a sale, lease or transfer of all or substantially all of the assets of the
Company, or a reorganization, recapitalization, dissolution or liquidation
of the Company. This Proxy is coupled with an interest and shall be
irrevocable and binding on any successor in interest of the undersigned.
This Proxy shall operate to revoke any prior proxy as to the Securities
heretofore granted by the undersigned. This Proxy shall be effective as of
the date of the Voting Agreement and shall terminate upon the Expiration
Date (as defined in the Voting Agreement).
