FORM OF
VOTING AGREEMENT
VOTING AGREEMENT, dated as of June 18 , 1998 (this "Agreement"),
by and among WHEELS MERGERCO LLC, a Delaware limited liability company
("MergerCo"), and _________ (the "Stockholder").
WHEREAS, MergerCo and XTRA Corporation, a Delaware corporation
(the "Company"), propose to enter into an Agreement and Plan of Merger and
Recapitalization, dated as of the date hereof (the "Recapitalization
Agreement"; capitalized terms used but not defined herein shall have the
meanings set forth in the Recapitalization Agreement), providing for the
merger (the "Merger") of MergerCo with and into the Company, upon the terms
and subject to the conditions set forth in the Merger Agreement (a copy of
which is attached hereto as Exhibit A); and
WHEREAS, the Stockholder owns the number of shares of common
stock, par value $.50 per share, of the Company (the "Common Stock") set
forth on Schedule A attached hereto (such shares of Common Stock, together
with any other shares of Common Stock that the Stockholder acquires
beneficial ownership of after the date hereof and during the term of this
Agreement, whether upon the exercise of options, warrants or rights, the
conversion or exchange of convertible or exchangeable securities, or by
means of purchase, dividend, distribution, gift, devise or otherwise, being
collectively referred to herein as the "Subject Shares"); and
WHEREAS, as a condition to its willingness to enter into the
Recapitalization Agreement, MergerCo has requested that the Stockholder
enter into this Agreement.
NOW, THEREFORE, to induce MergerCo to enter into, and in
consideration of its agreeing to enter into, the Recapitalization
Agreement, and in consideration of the premises and the representations,
warranties and agreements contained herein, intending to be legally bound
hereby, the parties hereto agree as follows:
1. Representations and Warranties of Each Stockholder. The
Stockholder hereby represents and warrants to MergerCo as follows:
(a) Authority; No Conflicts. The Stockholder has all requisite
power and authority to enter into and to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution, delivery and performance
of this Agreement by the Stockholder, the performance of its obligations
hereunder and the consummation of the transactions contemplated hereby,
have been duly authorized by all necessary action on the part of
Stockholder. This Agreement has been duly authorized, executed and
delivered by the Stockholder and, assuming due authorization, execution and
delivery by MergerCo, constitutes a legal, valid and binding obligation of
the Stockholder, enforceable in accordance with its terms. Except for
informational filings with the SEC, the execution and delivery of this
Agreement do not, and the consummation of the transactions contemplated
hereby and compliance with the terms hereof will not, (i) conflict with,
or result in any violation of, or default (with or without notice or lapse
of time or both) under any provision of, any certificate or articles of
incorporation, bylaws, certificate or articles of limited partnership,
limited partnership agreement, trust agreement, loan or credit agreement,
note, bond, mortgage, indenture, lease or other agreement, instrument,
permit, concession, franchise, license, judgment, order, notice, decree,
statute, law, ordinance, rule or regulation applicable to the Stockholder
or to the Stockholder's property or assets, including the Subject Shares,
(ii) to such Stockholder's knowledge, require any other filing with, or
permit, authorization, consent or approval of, or notice to, any federal,
state or local government or any court, tribunal, administrative agency or
commission or other governmental or regulatory authority or agency,
domestic, foreign or supranational, or (iii) to such Stockholder's
knowledge, violate any order, writ, injunction, decree, statute, rule or
regulation applicable to the Stockholder or any of the Stockholder's
properties or assets, including the Subject Shares.
(b) The Subject Shares. The Stockholder is the record and
beneficial owner of, and has good and marketable title to, the Subject
Shares set forth opposite its name on Schedule A hereto and has, and
throughout the term of this Agreement will have, good and marketable title
to the Subject Shares free and clear of all Liens. The Stockholder does
not own, beneficially or of record, any shares of capital stock of the
Company or securities convertible into or exchangeable for shares of
capital stock of the Company, other than the Subject Shares set forth
opposite its name on Schedule A hereto. The Stockholder has the sole right
and power to vote and dispose of the Subject Shares, and none of such
Subject Shares is subject to any voting trust or other agreement,
arrangement or restriction with respect to the voting or transfer (other
than the provisions of the Securities Act) of any of the Subject Shares,
except as contemplated by this Agreement.
(c) Brokers. No broker, finder, investment banker or other
person retained by the Stockholder is entitled to any brokerage, finder's
or other fee or commission in connection with the execution of this
Agreement by the Stockholder or the performance by the Stockholder of its
obligations hereunder.
(d) Proxies. The Stockholder represents that there are no
proxies heretofore given in respect of the Stockholder's Subject Shares.
2. Representations and Warranties of MergerCo.
MergerCo hereby represents and warrants to each Stockholder as
follows:
(a) Existence; Authority; Conflicts. MergerCo is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has all requisite corporate power and authority to
execute and deliver this Agreement, to perform its obligations hereunder
and to consummate the transactions contemplated hereby. The execution,
delivery and performance of this Agreement by MergerCo, the performance of
its obligations hereunder and the consummation of the transactions
contemplated hereby, have been duly authorized by all necessary action on
the part of MergerCo. This Agreement has been duly authorized, executed
and delivered by and on behalf of MergerCo and, assuming due authorization,
execution and delivery by the Stockholder, constitutes a legal, valid and
binding obligation of MergerCo enforceable in accordance with its terms.
Except for informational filings with the SEC, the execution and delivery
of this Agreement do not, and the consummation of the transactions
contemplated hereby and compliance with the terms hereof will not, (i)
conflict with, or result in any violation of, or default (with or without
notice or lapse of time or both) under any provision of, any certificate or
articles of incorporation, bylaws, certificate or articles of limited
partnership, limited partnership agreement, trust agreement, loan or credit
agreement, note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise, license, judgment, order,
notice, decree, statute, law, ordinance, rule or regulation applicable to
MergerCo or to the MergerCo's property or assets, (ii) require any filing
with, or permit, authorization, consent or approval of, or notice to, any
federal, state or local government or any court, tribunal, administrative
agency or commission or other governmental or regulatory authority or
agency, domestic, foreign or supranational, or (iii) violate any order,
writ, injunction, decree, statute, rule or regulation applicable to
MergerCo or any of the MergerCo's properties or assets.
(b) Brokers. No broker, finder, investment banker or other
person is entitled to any brokerage, finder's or other fee or commission
for which the Stockholder will be liable in connection with the execution
of this Agreement by MergerCo or the performance by MergerCo of its
obligations hereunder.
(c) Complete Agreement; No Additional Agreements. This
Agreement represents the complete agreement between MergerCo and the
Stockholder, and there are no additional agreements between MergerCo and
any other stockholder of the Company with respect to any matter referenced
herein.
3. Covenants of the Stockholder. Until the termination of this
Agreement in accordance with Section 8 hereof, the Stockholder agrees,
subject to the terms and conditions of this Agreement, as follows:
(a) Voting of Subject Shares for the Merger. At any meeting of
stockholders of the Company called to vote upon the Merger and the
Recapitalization Agreement or at any adjournment thereof or in any other
circumstances upon which a vote, consent or other approval with respect to
the Merger and the Recapitalization Agreement is sought, the Stockholder
shall vote (or cause to be voted) the Subject Shares in favor of the
Merger, the adoption by the Company of the Recapitalization Agreement and
the approval of the terms thereof and each of the other transactions
contemplated by the Recapitalization Agreement (provided that the
Stockholder shall not be required to vote in favor or the Recapitalization
Agreement or the Merger if the Recapitalization Agreement has, without the
written consent of the Stockholder, been amended in any manner that is
material and adverse to the Stockholder).
(b) Voting of Subject Shares Against Competing Proposals.
During the term of this Agreement, Stockholder hereby agrees that it will
vote any of the Subject Securities against the approval of any other
merger, consolidation, sale of assets, reorganization, recapitalization,
liquidation or winding up of the Company or any other extraordinary
transaction involving the Company or any matters related to or in
connection therewith, or any corporate action relating to or the
consummation of which would either frustrate the purposes of, or prevent or
delay the consummation of, the transactions contemplated by the
Recapitalization Agreement.
(c) Proxies. As security for the agreements of the Stockholder
provided for herein, the Stockholder hereby grants to MergerCo and to
Xxxxxxx Xxxxx and Xxxxxx Xxxxxx, each in his individual capacity as an
officer of MergerCo and to any individual who shall succeed to any such
officer of MergerCo, a proxy to vote the Subject Shares as indicated in
Sections 3(a) and 3(b) above. The Stockholder agrees that this proxy shall
be irrevocable during the term of this Agreement and coupled with an
interest and each 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 the Stockholder with respect
to the Subject Shares. The proxy granted pursuant to this Section 3(c)
shall not affect the Stockholder's ability to make an election, pursuant to
the terms and conditions of the Recapitalization Agreement, to receive cash
or stock as consideration in the Merger and (ii) shall terminate upon the
termination of this Agreement pursuant to Section 8. Each Stockholder
hereby affirms that each irrevocable proxy granted pursuant to this Section
3(c) is given in connection with the execution of the Recapitalization
Agreement, and that each such irrevocable proxy is given to secure the
performance of the duties of the Stockholder under this Agreement. The
Stockholder hereby further affirms that each such irrevocable proxy is
coupled with an interest and may under no circumstances be revoked. The
Stockholder hereby ratifies and confirms all that the holder of each
irrevocable proxy may lawfully do or cause to be done by virtue hereof.
Each such irrevocable proxy is executed and intended to be irrevocable in
accordance with the provisions of Section 212(e) of the DGCL; provided,
that each such irrevocable proxy shall terminate upon termination of this
Agreement pursuant to Section 8.
(d) Transfer Restrictions. Prior to the termination of this
Agreement, the Stockholder agrees not to (i) sell, transfer, pledge,
encumber, assign or otherwise dispose of (including by gift or by
contribution or distribution or otherwise) (or consent to any of the
foregoing) (collectively, "Transfer"), or enter into any contract, option
or other arrangement or understanding (including any profit sharing
arrangement) with respect to the Transfer of, any of the Subject Shares or
any interest therein other than pursuant to the terms hereof and the
Recapitalization Agreement, (ii) enter into any voting arrangement or
understanding, whether by proxy, voting agreement or otherwise, or (iii)
take any action that would make any of its representations or warranties
contained herein untrue or incorrect or have the effect of preventing or
disabling the Stockholder from performing its obligations under this
Agreement.
(e) Appraisal Rights. The Stockholder hereby irrevocably waives
any rights of appraisal with respect to the Merger or rights to dissent
from the Merger that the Stockholder may have.
(f) Acquisition Proposals. During the term of this Agreement,
the Stockholder shall not, nor shall it permit any investment banker,
financial advisor, attorney, accountant or other representatives retained
by it, to, directly or indirectly, (i) solicit, initiate or encourage
(including by way of furnishing information), or take any other action to
facilitate, any inquiries or the making of any proposal that may lead to an
Acquisition Proposal or (ii) participate in any discussions or negotiations
regarding any proposed Acquisition Proposal.
(g) Certain Events. The Stockholder agrees that this Agreement
and the obligations hereunder shall attach to such Stockholder's Subject
Shares and shall be binding upon any person or entity to which legal or
beneficial ownership of such Subject Shares shall pass, whether by
operation of law or otherwise. In the event of any stock split, stock
dividend, merger, reorganization, recapitalization or other change in the
capital structure of the Company affecting the Common Stock, or the
acquisition of additional shares of Common Stock or other voting securities
of the Company by the Stockholder, the number of Subject Shares listed in
Schedule A beside the name of the Stockholder shall be adjusted
appropriately and this Agreement and the obligations hereunder shall attach
to any additional shares of Common Stock or other voting securities of the
Company issued to or acquired by such Stockholder.
(h) Affiliate Letter. The Stockholder shall deliver to MergerCo
on or prior to the Effective Time a written agreement substantially in the
form attached as Annex A to the Recapitalization Agreement.
4. Further Assurances. The Stockholder will, from time to time,
execute and deliver, or cause to be executed and delivered, such additional
or further consents, proxies, documents and other instruments as MergerCo
or the Company may reasonably request for the purpose of effectively
carrying out the transactions contemplated by this Agreement. If MergerCo
or its affiliates enters into any agreement with any other stockholder of
the Company having a purpose or effect substantially similar to that of
this Agreement on financial or other terms (with respect to such other
stockholder) more favorable than the terms of this Agreement, the
Stockholder will have the right to elect any of the benefits thereof, as
they may be amended or waived from time to time. The preceding sentences
shall not apply to any arrangements entered into with management of the
Company.
5. Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
without the prior written consent of the other parties, except that
MergerCo may assign, in its sole discretion, any or all of its rights,
interests and obligations hereunder to any affiliate of MergerCo. Subject
to the preceding sentence, this Agreement will be binding upon, inure to
the benefit of and be enforceable by the parties and their permitted
assigns and their respective successors (including the Company as successor
to MergerCo pursuant to the Merger).
6. Public Announcement. Neither MergerCo nor the Stockholder
shall issue any press release or make any public statement without the
prior written consent of the other parties hereto, except as may be
required by applicable law, court process or by obligations pursuant to any
listing agreement with any national securities exchange.
7. Term; Termination. This Agreement shall become effective
upon execution and delivery by all of the parties hereto and this Agreement
shall terminate, and no party shall have any rights or obligations
hereunder and this Agreement shall become null and void and have no further
effect, except as otherwise provided herein, immediately following the
earliest to occur of (x) the Effective Time or (y) the termination of the
Recapitalization Agreement pursuant to its terms. Nothing in this Section
7 shall relieve any party of liability for breach of this Agreement.
8. Compliance with Rule 144(c). For a period of two years
following the Effective Time, the Company shall comply with all
requirements of Rule 144(c) promulgated under the Securities Act of 1933.
9. General Provisions.
(a) Amendments. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
(b) Notice. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally or
sent by overnight courier (providing proof of delivery) to MergerCo in
accordance with Section 9.2 of the Recapitalization Agreement and to the
Stockholder as set forth on Schedule A hereto (or at such other address for
a party as shall be specified by like notice).
(c) Interpretation. When a reference is made in this Agreement
to Sections, such reference shall be to a Section of this Agreement unless
otherwise indicated. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Wherever the words "include," "includes"
or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation."
(d) 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 of the counterparts have been
signed by each of the parties and delivered to the other parties, it being
understood that each party need not sign the same counterpart.
(e) Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware regardless
of the laws that might otherwise govern under applicable principles of
conflicts of law thereof.
(f) Entire Agreement; No Third-Party Beneficiaries. This
Agreement (including 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.
(g) Voidability. If prior to the execution hereof, the Board of
Directors of the Company shall not have duly and validly authorized and
approved by all necessary corporate action, this Agreement, the
Recapitalization Agreement and the transactions contemplated hereby and
thereby, so that by the execution and delivery hereof MergerCo would
become, or could reasonably be expected to become an "interested
stockholder" with whom the Company would be prevented for any period
pursuant to Section 203 of the DGCL from engaging in any "business
combination" (as such terms are defined in Section 203 of the DGCL), then
this Agreement shall be void and unenforceable until such time as such
authorization and approval shall have been duly and validly obtained.
(h) Expenses. Except as otherwise provided herein, all costs
and expenses incurred in connection with the transactions contemplated by
this Agreement shall be paid by the party incurring such expenses.
10. 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
an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of this Agreement in any
Federal court of the United States located in the Southern District of the
State of New York or in a New York state court located in Manhattan, 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 (i) consents to submit
such party to the personal jurisdiction of any Federal court located in the
Southern District of the State of New York or any New York state court
located in Manhattan in the event any dispute arises out of this Agreement
or any of the transactions contemplated hereby, (ii) agrees that such party
will not attempt to deny or defeat such personal jurisdiction by motion or
other request for leave from any such court, (iii) agrees that such party
will not bring any action relating to this Agreement or the transactions
contemplated hereby in any court other than a Federal court sitting in the
Southern District of the State of New York or a New York state court
located in Manhattan and (iv) 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.
IN WITNESS WHEREOF, MergerCo and the Stockholder have each caused
this Agreement to be signed by its signatory thereunto duly authorized each
as of the date first written above.
WHEELS MERGERCO LLC
By: _______________________________
Name:
Title:
[STOCKHOLDER]
By: _______________________________
Name:
Title:
