EXHIBIT B
VOTING AGREEMENT
AGREEMENT dated as of June 23, 1998 by and between LAREDO
ACQUISITION CORP., a Delaware corporation ("Acquisition"), and the
other parties signatory hereto (each a "Stockholder").
RECITALS
A. Concurrently herewith, Acquisition, and Celadon Group,
Inc., a Delaware corporation (the "Company"), are entering into an
Agreement and Plan of Merger of even date herewith (as such
agreement may be amended from time to time, the "Merger
Agreement"; capitalized terms used but not defined herein shall
have the meanings set forth in the Merger Agreement) pursuant to
which (and subject to the terms and conditions specified therein)
Acquisition will be merged with and into the Company (the
"Merger").
B. As a condition to Acquisition entering into the Merger
Agreement, Acquisition requires that each Stockholder enter into,
and each such Stockholder hereby agrees to enter into, this
Agreement.
AGREEMENT
To implement the foregoing and in consideration of the mutual
agreements contained herein, the parties hereby agree as follows:
1. Representations and Warranties of Stockholders. Each
Stockholder hereby severally and not jointly represents and
warrants to Acquisition as follows:
(a) Ownership of Shares.
i. Such Stockholder is the record holder or beneficial
owner of the number of shares of Company Common Stock as is
set forth opposite such Stockholder's name on Schedule I
hereto (such shares shall constitute the "Existing Shares",
and together with any shares of Company Common Stock acquired
of record or beneficially by such Stockholder in any capacity
after the date hereof and prior to the termination hereof,
whether upon exercise of options, conversion of convertible
securities, purchase, exchange or otherwise, shall constitute
the "Shares").
ii. On the date hereof, the Existing Shares set forth
opposite such Stockholder's name on Schedule I hereto
constitute all of the outstanding shares of Company Common
Stock owned of record or beneficially by such Stockholder.
Such Stockholder does not have record or beneficial ownership
of any Shares not set forth on Schedule I hereto.
iii. Such Stockholder has sole power of disposition with
respect to all of the Existing Shares set forth opposite such
Stockholder's name on Schedule I and sole voting power with
respect to the matters set forth in Section 2 hereof and sole
power to demand appraisal rights, in each case with respect
to all of the Existing Shares set forth opposite such
Stockholder's name on Schedule I, with no restrictions on
such rights, subject to applicable federal securities laws
and the terms of this Agreement.
iv. Such Stockholder will have sole power of
disposition with respect to Shares other than Existing
Shares, if any, which become beneficially owned by such
Stockholder and will have sole voting power with respect to
the matters set forth in Section 2 hereof and sole power to
demand appraisal rights, in each case with respect to all
Shares other than Existing Shares, if any, which become
beneficially owned by such Stockholder with no restrictions
on such rights, subject to applicable federal securities laws
and the terms of this Agreement.
(b) Organization; Power; Binding Agreement. If such
Stockholder is a corporation, such Stockholder is a corporation
duly formed, validly existing and in good standing under the laws
of its jurisdiction of its organization. If such Stockholder is a
corporation, such Stockholder has the necessary corporate power
and authority to enter into and perform all of such Stockholder's
obligations under this Agreement and has taken all corporate
action necessary to execute and deliver this Agreement, to
consummate the transactions contemplated hereby and to perform its
obligations hereunder, and no other corporate proceedings on the
part of such Stockholder are necessary to authorize the execution,
delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby. If such Stockholder is an
individual, such Stockholder has the legal capacity, power and
authority to enter into and perform all of such Stockholder's
obligations under this Agreement. This Agreement has been duly and
validly executed and delivered by such Stockholder and constitutes
a valid and binding agreement of such Stockholder, enforceable
against such Stockholder in accordance with its terms. If such
Stockholder is married and such Stockholder's Shares constitute
community property, this Agreement has been duly authorized,
executed and delivered by, and constitutes a valid and binding
agreement of, such Stockholder's spouse, enforceable against such
person in accordance with its terms.
(c) No Conflicts. Except for filings under the Xxxx-
Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the
"HSR Act"), if applicable, and any required amendments to any
Schedule 13D filed by any such Stockholder, (A) no filing with,
and no permit, authorization, consent or approval of, any state or
federal public body or authority is necessary for the execution of
this Agreement by such Stockholder and the consummation by such
Stockholder of the transactions contemplated hereby and (B)
neither the execution, delivery or performance of this Agreement
by such Stockholder nor the consummation by such Stockholder of
the transactions contemplated hereby nor compliance by such
Stockholder with any of the provisions hereof shall (x) conflict
with or result in any breach of any applicable certificate of
incorporation, bylaws, trust, partnership agreement or other
agreements or organizational documents applicable to such
Stockholder, (y) result in a violation or breach of, or constitute
(with or without notice or lapse of time or both) a default (or
give rise to any third party right of termination, cancellation,
material modification or acceleration) under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding,
agreement or other instrument or obligation of any kind to which
such Stockholder is a party or by which such Stockholder or any of
such Stockholder's properties or assets may be bound or (z)
violate any order, writ, injunction, decree, judgment, law,
statute, rule or regulation applicable to such Stockholder or any
of such Stockholder's properties or assets.
(d) No Transfer. Except as described on Schedule II,
such Stockholder's Shares and the certificates representing 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, free and clear of all liens, claims,
security interests, proxies, voting trusts or agreements,
understandings or arrangements or any other encumbrances
whatsoever, except for any such encumbrances or proxies arising
hereunder.
(e) No Finders. No broker, investment banker, financial
adviser or other person is entitled to any broker's, finder's,
financial adviser's or other similar fee or commission in
connection with the transactions contemplated hereby based upon
arrangements made by or on behalf of such Stockholder in his or
her capacity as such.
(f) Acknowledgment. Such Stockholder understands and
acknowledges that Acquisition is entering into the Merger
Agreement in reliance upon such Stockholder's execution and
delivery of this Agreement.
2. Agreement To Vote; Proxy.
2.1 Voting. Each Stockholder hereby severally and not
jointly agrees that, until the Termination Date (as defined in
Section 7 hereof), at any meeting of the stockholders of the
Company, however called, or in connection with any written consent
of the stockholders of the Company, such Stockholder shall vote
(or cause to be voted) the Shares held of record or beneficially
by such Stockholder (i) in favor of the Merger and adoption of the
Merger Agreement, the execution and delivery by the Company of the
Merger Agreement and the approval of the terms thereof and in
favor of each of the other actions contemplated by the Merger
Agreement and this Agreement and any actions required in
furtherance hereof and thereof; (ii) against any action or
agreement that would (or would be reasonably likely to) result in
a breach of any covenant, representation or warranty or any other
obligation or agreement of the Company under the Merger Agreement
or this Agreement; and (iii) except as specifically requested in
writing by Acquisition in advance, against the following actions
(other than the Merger and the transactions contemplated by the
Merger Agreement): (1) any extraordinary corporate transaction,
such as a merger, consolidation or other business combination
involving the Company or any of its subsidiaries; (2) a sale,
lease or transfer (whether by merger, consolidation, operation of
law or otherwise) of a material amount of assets of the Company or
any of its subsidiaries or a reorganization, recapitalization,
dissolution or liquidation of the Company or any of its
subsidiaries; (3) (a) any change in the majority of the board of
directors of the Company; (b) any change in the present
capitalization of the Company or any amendment of the Company's
certificate of incorporation or by-laws; (c) any other material
change in the Company's corporate structure or business; or (d)
any other action which is intended, or could reasonably be
expected, to impede, interfere with, delay, postpone, discourage
or materially adversely affect the Merger or the transactions
contemplated by the Merger Agreement or this Agreement or the
contemplated economic benefits of any of the foregoing. Such
Stockholder shall not enter into any agreement or understanding
with any person or entity prior to the Termination Date to vote or
give instructions after the Termination Date in any manner
inconsistent with clauses (i), (ii) or (iii) of the preceding
sentence.
2.2 PROXY. EACH STOCKHOLDER HEREBY GRANTS TO, AND APPOINTS,
ACQUISITION AND XXXXX XXXXX, PRESIDENT OF ACQUISITION, AND XXXXXXX
XXXXXXXX, VICE PRESIDENT OF ACQUISITION, IN THEIR RESPECTIVE
CAPACITIES AS OFFICERS OF ACQUISITION, AND ANY INDIVIDUAL WHO
SHALL HEREAFTER SUCCEED TO ANY SUCH OFFICE OF ACQUISITION, AND ANY
OTHER DESIGNEE OF ACQUISITION, EACH OF THEM INDIVIDUALLY, SUCH
STOCKHOLDER'S IRREVOCABLE (UNTIL THE TERMINATION DATE) PROXY AND
ATTORNEY-IN-FACT (WITH FULL POWER OF SUBSTITUTION) TO VOTE THE
SHARES AS INDICATED IN SECTION 2.1 ABOVE. EACH STOCKHOLDER INTENDS
THIS PROXY TO BE IRREVOCABLE (UNTIL THE TERMINATION DATE) AND
COUPLED WITH AN INTEREST AND WILL TAKE SUCH FURTHER ACTION AND
EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE
THE INTENT OF THIS PROXY AND HEREBY REVOKES ANY PROXY PREVIOUSLY
GRANTED BY SUCH STOCKHOLDER WITH RESPECT TO SUCH STOCKHOLDER'S
SHARES.
3. Certain Covenants of Stockholders. Except in accordance
with the terms of this Agreement, each Stockholder hereby
severally covenants and agrees as follows:
3.1 No Solicitation. Prior to the Termination Date, no
Stockholder shall, in its capacity as such, directly or indirectly
(including through advisors, agents or other intermediaries),
solicit (including by way of furnishing information) or respond to
any inquiries or the making of any proposal by any person or
entity (other than Acquisition or any Affiliate thereof) with
respect to the Company that constitutes or could reasonably be
expected to lead to an Acquisition Proposal (as defined in Section
6.4 in the Merger Agreement). If any Stockholder in its capacity
as such receives any such inquiry or proposal, then such
Stockholder shall promptly inform Acquisition of the terms and
conditions, if any, of such inquiry or proposal and the identity
of the person making it. Each Stockholder, in its capacity as
such, will immediately cease and cause to be terminated any
existing activities, discussions or negotiations with any parties
conducted heretofore with respect to any of the foregoing.
Notwithstanding the foregoing, nothing in this Section 3.1 shall
restrict a Stockholder who is also a director of the Company from
taking actions in such Stockholder's capacity as a director to the
extent and in the circumstances permitted by Section 6.4 of the
Merger Agreement.
3.2 Restriction on Transfer, Proxies and Noninterference;
Restriction on Withdrawal. Prior to the Termination Date, no
Stockholder shall, directly or indirectly: (i) except pursuant to
the terms of the Merger Agreement and to Acquisition pursuant to
this Agreement, offer for sale, sell, transfer (whether by merger,
consolidation, operation of law or otherwise), tender, pledge,
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 (whether by merger, consolidation, operation of law
or otherwise), tender, pledge, encumbrance, assignment or other
disposition of, or exercise any discretionary powers to
distribute, any or all of such Stockholder's Shares or any
interest therein, (ii) except as contemplated by this Agreement,
grant any proxies or powers of attorney with respect to any
Shares, deposit any Shares into a voting trust or enter into a
voting agreement with respect to any Shares; or (iii) take any
action that would make any representation or warranty of such
Stockholder contained herein untrue or incorrect or have the
effect of preventing or disabling such Stockholder from performing
such Stockholder's obligations under this Agreement. Acquisition
acknowledges the circumstances described on Schedule II which
shall not be construed as a breach of this covenant.
3.3 Waiver of Appraisal Rights. Each Stockholder hereby
waives any rights of appraisal from the Merger that such
Stockholder may have.
3.4 Agreement to Roll-Over. Each Stockholder listed on
Schedule A to the Merger Agreement understands and acknowledges
that Sub is entering into the Merger Agreement in reliance upon
the conversion of their shares into the right to receive the
Surviving Corporation Common Stock and agree to such conversion
pursuant to Section 3.2 of the Merger Agreement. Each Stockholder
hereby agrees to rollover the number of shares of Company Common
Stock set forth opposite such Stockholder's name on Schedule A to
the Merger Agreement.
3.5 Confidentiality, No Hire.
(a) Each Stockholder agrees that for a period ending
five years after the Effective Time of the Merger, such
Stockholder will not disclose to any other party, unless required
to do so by law, any Confidential Information relating to the
Company or to any subsidiary or affiliate thereof which
information was acquired during the course of such Stockholder's
relationship with the Company. As used in this Agreement, the term
"Confidential Information" means information that is not generally
known or available to the public and that is used, developed or
obtained by the Company or its subsidiaries or affiliates in
connection with its businesses, including but not limited to,
(i) products or services; (ii) fees, costs and pricing structures;
(iii) designs; (iv) computer software, including operating
systems, applications and program listings; (v) flow charts,
manuals and documentation; (vi) data bases; (vii) accounting and
business methods; (viii) inventions, devices, new developments,
methods and processes, whether patentable or unpatentable and
whether or not reduced to practice; (ix) customers or customer
requirements, order levels or projections and customer or client
lists; (x) other copyrightable works; (xi) all technology and
trade secrets; and (xii) all similar and related information in
whatever form. Confidential Information will not include any
information that has been published in a form generally available
to the public prior to the date the Stockholder proposes to
disclose or use such information.
(b) Each Stockholder agrees that for a period ending
two years after the Effective Time of the Merger, without the
prior written consent of the Company, neither such Stockholder nor
any business or enterprise with which such Stockholder is
associated as an officer, director or controlling shareholder or
other investor (in each case, with the power to direct or cause
the direction of the management of such business or enterprise)
will employ or attempt to employ an employee of the Company or any
of its Subsidiaries or joint ventures.
3.6 Hanseatic Agreement. Each Stockholder that is a party to
that certain Stockholders Agreement dated as of October 8, 1992
and as amended as of July 3, 1996 (the "Stockholders Agreement")
by and among the Company, Xxxxxxx Xxxxxxx, and Hanseatic
Corporation agrees that, from the date hereof until the date the
Merger Agreement is terminated in accordance with its terms, the
Stockholders Agreement shall be of no force or effect to the
extent that the Stockholders Agreement is inconsistent with this
Agreement, the Merger Agreement or the transactions contemplated
hereby or thereby and that such Stockholder shall not, and shall
not attempt to, either directly or indirectly, exercise any of its
rights under the Stockholders Agreement in any manner inconsistent
with this Agreement, the Merger Agreement or the transactions
contemplated hereby or thereby (it being agreed that, without
limitation, the exercise of any rights under Article II of the
Stockholders Agreement by any Stockholder in connection with the
transactions contemplated by the Merger Agreement would be
inconsistent with this Agreement, the Merger Agreement and the
transactions contemplated hereby and thereby). Each Stockholder
that is party to the Stockholders Agreement further agrees that
the Stockholder Agreement shall terminate as of the Closing and to
execute such additional documents and agreements to effect the
foregoing. Acquisition acknowledges that Hanseatic Corporation's
representations and warranties set forth in Sections 1(a)(ii),
1(a)(iii) and 1(a)(iv) shall not be deemed to have been breached
as a result of the existence of the Stockholders Agreement.
4. 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 and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
5. Certain Events. Each Stockholder agrees that this
Agreement and the obligations thereunder shall attach to such
Stockholder's Shares and shall be binding upon any person or
entity to which legal or beneficial ownership of such Shares shall
pass, whether by operation of law or otherwise, including without
limitation such Stockholder's heirs, guardians, administrators or
successors or as a result of any divorce.
6. Stop Transfer. Each Stockholder agrees with, and
covenants to, Acquisition that such Stockholder shall not request
that the Company register the transfer (book-entry or otherwise)
of any certificate or uncertificated interest representing any of
such Stockholder's Shares, unless such transfer is made in
compliance with this Agreement.
7. Termination. The obligations of the Stockholders under
this Agreement shall terminate upon the date the Merger Agreement
is terminated in accordance with its terms. The termination of
this Agreement shall not relieve any party from liability for any
breach of this Agreement.
8. Miscellaneous.
8.1 Entire Agreement; Assignment. This Agreement (i)
constitutes the entire agreement between the parties with respect
to the subject matter hereof and supersedes all other prior
agreements and understandings, both written and oral, between the
parties with respect to the subject matter hereof and (ii) shall
not be assigned by operation of law or otherwise without the prior
written consent of the other parties, provided that Acquisition
may assign, in its sole discretion, its rights and obligations
hereunder to any affiliate of Acquisition, but no such assignment
shall relieve Acquisition of its obligations hereunder if such
assignee does not perform such obligations.
8.2 Amendments. This Agreement may not be modified, amended,
altered or supplemented, except upon the execution and delivery of
a written agreement executed by the parties hereto; provided that
Schedule I may be supplemented by Acquisition by adding the name
and other relevant information concerning any stockholder of the
Company who is or agrees to be bound by the terms of this
Agreement without the agreement of any other party hereto, and
thereafter such added stockholder shall be treated as a
"Stockholder" for all purposes of this Agreement.
8.3 Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be
given (and shall be deemed to have been duly received if so given)
by hand delivery, telegram, telex or telecopy, or by mail
(registered or certified mail, postage prepaid, return receipt
requested) or by any courier service, such as Federal Express,
providing proof of delivery. All communications hereunder shall be
delivered to the Stockholders at the addresses set forth on
Schedule I hereto. All communications hereunder shall be delivered
to Acquisition as follows:
c/o Odyssey Investment Partners, LLC
000 Xxxx Xxxxxx
Xxxx Tower, 38th Floor
New York, New York 10017
Attn: Xxxxx Xxxxx
copy to:
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxxx Xxxxxxx
or to such other address as the person to whom notice is given may
have previously furnished to the others in writing in the manner
set forth above.
8.4 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 laws thereof.
8.5 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.
8.6 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an
original, but both of which shall constitute one and the same
Agreement.
8.7 Descriptive Headings. The descriptive headings used
herein are inserted for convenience of reference only and are not
intended to be part of or to affect the meaning or interpretation
of this Agreement.
8.8 Severability. Whenever possible, each provision or
portion of any provision of this Agreement will be interpreted in
such manner as to be effective and valid under applicable law but
if any provision or portion of any provision of this Agreement is
held to be invalid, illegal or unenforceable in any respect under
any applicable law or rule in any jurisdiction, such invalidity,
illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such
jurisdiction as if such invalid, illegal or unenforceable
provision or portion of any provision had never been contained
herein.
8.9 Definitions; Construction. For purposes of this
Agreement:
(a) "beneficially own" or "beneficial ownership" with
respect to any securities shall mean having "beneficial ownership"
of such securities (as determined pursuant to Rule 13d-3 under the
Exchange Act), including pursuant to any agreement, arrangement or
understanding, whether or not in writing. Without duplicative
counting of the same securities by the same holder, securities
beneficially owned by a Person shall include securities
beneficially owned by all other Persons with whom such Person
would constitute a "group" as described in Section 13(d)(3) of the
Exchange Act.
(b) "Person" shall mean an individual, corporation,
partnership, joint venture, association, trust, unincorporated
organization or other entity.
In the event of a stock dividend or distribution, or any
change in the Company Common Stock by reason of any split-up,
subdivision, 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 stock distributed pursuant to
such stock dividends and distributions and any shares into which
or for which any or all of the Shares may be changed, exchanged,
split, subdivided, combined or recapitalized.
8.10 Stockholder Capacity. Notwithstanding anything herein to
the contrary, no person executing this Agreement who is, or
becomes during the term hereof, a director of the Company makes
any agreement or understanding herein in his or her capacity as
such director, and the agreements set forth herein shall in no way
restrict any director in the exercise of his or her fiduciary
duties as a director of the Company. Each Stockholder has executed
this Agreement solely in his or her capacity as the record or
beneficial holder of such Stockholder's Shares.
IN WITNESS WHEREOF, Acquisition and each Stockholder have
caused this Agreement to be duly executed as of the day and year
first above written.
LAREDO ACQUISITION CORP.
By: s/Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
----------------------------
Title: President
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By: s/Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
----------------------------
Title: Vice President
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STOCKHOLDERS:
Xxxxxxx Xxxxxxx
s/Xxxxxxx Xxxxxxx
---------------------------------
Hanseatic Corporation
By: s/Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
----------------------------
Title: President
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Schedule I
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Name Number of Existing Shares
---- -------------------------
Xxxxxxx Xxxxxxx 924,804
Hanseatic Corporation 947,232*
* Exclusive of 12,121 shares issuable upon exercise of warrants,
which for purposes of this Agreement shall be deemed Shares solely
in the event of exercise of such warrants.
Schedule II
Hanseatic Americas LDC and certain clients of Hanseatic
Corporation have economic rights with respect to the Shares
beneficially owned by Hanseatic Corporation. However, such rights
do not impair or limit Hanseatic Corporation's record and
beneficial ownership power of disposition, voting power or power
to demand appraisal rights with respect to its Shares.
