VOTING AGREEMENT
AGREEMENT, dated as of January 27, 1999 between Xxxxxx & Xxxxx
Corporation a Tennessee corporation ("BUYER"), and Xxxxx X. Xxxxxxx
("STOCKHOLDER").
WHEREAS, in order to induce Buyer and T&B Acquisition Corp, a Delaware
Corporation ("MERGER SUBSIDIARY") to enter into an Agreement and Plan of
Merger, dated as of the date hereof (the "MERGER AGREEMENT"), with AFC Cable
Systems, Inc., a Delaware corporation (the "COMPANY"), Buyer has requested
Stockholder, and Stockholder has agreed, to enter into this Agreement with
respect to 1,879,907 shares of common stock, par value $.01 per share, of the
Company (the "COMMON STOCK") that Stockholder beneficially owns and 343,750
shares of Common Stock that Stockholder may beneficially own as a result of
the exercise of Company Stock Options outstanding on the date hereof
(collectively, the "SHARES").
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
GRANT OF PROXY; VOTING AGREEMENT
SECTION 1.01. VOTING AGREEMENT. Stockholder hereby irrevocably and
unconditionally agrees to vote all Shares and all Acquired Shares (as defined
below) that Stockholder is entitled to vote at the time of any vote to
approve and adopt the Merger Agreement, the Merger and all agreements related
to the Merger and any actions related thereto at any meeting of the
stockholders of the Company, and at any adjournment thereof, at which such
Merger Agreement and other related agreements (or any amended version
thereof), or such other actions, are submitted for the consideration and vote
of the stockholders of the Company.
SECTION 1.02. IRREVOCABLE PROXY. Stockholder hereby revokes any and
all previous proxies granted with respect to the Shares. By entering into
this Agreement, Stockholder hereby grants a proxy appointing Buyer as the
Stockholder's attorney-in-fact and proxy, with full power of substitution,
for and in the Stockholder's name, to vote, express, consent or dissent, or
otherwise to utilize such voting power in the manner contemplated by Section
1.01 above as Buyer or its proxy or substitute shall, in Buyer's sole
discretion, deem proper with
respect to the Shares. The proxy granted by Stockholder pursuant to this
Article 1 is irrevocable and is granted in consideration of Buyer entering
into this Agreement and the Merger Agreement and incurring certain related
fees and expenses. The proxy granted by Stockholder shall be revoked upon
termination of this Agreement in accordance with its terms.
SECTION 1.03. ACQUISITION OF ADDITIONAL COMMON STOCK. The Stockholder
agrees that it will not acquire any Common Stock on or after the date hereof
(any such shares, "ACQUIRED SHARES"), including, without limitation, by
exercise of any option, warrant or right to acquire Common Stock, unless,
prior to such acquisition, the Stockholder executes and delivers to Buyer an
agreement, in form and substance satisfactory to Buyer, whereby the
Stockholder agrees to be bound by the terms of this Agreement (as it may have
been amended prior to such time) with respect to such Acquired Shares. In
furtherance of the foregoing, the Stockholder understands that, by its terms,
the rights granted under the irrevocable proxy pursuant to Section 1.02 to
this Agreement shall be extended, without any action by any party, to all
Acquired Shares.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
Stockholder represents and warrants to Buyer that:
SECTION 2.01. AUTHORIZATION. The execution, delivery and performance
by Stockholder of this Agreement and the consummation by Stockholder of the
transactions contemplated hereby are within the powers of Stockholder. This
Agreement constitutes a valid and binding Agreement of Stockholder. If the
Stockholder is married and the Shares set forth on the signature page hereto
opposite such Stockholder's name constitute community property under
applicable laws, this Agreement has been duly authorized, executed and
delivered by, and constitutes the valid and binding agreement of, such
Stockholder's spouse.
SECTION 2.02. NON-CONTRAVENTION. The execution, delivery and performance
by Stockholder of this Agreement and the consummation of the transactions
contemplated hereby do not and will not, (i) violate any applicable law, rule,
regulation, judgment, injunction, order or decree, (ii) require any consent or
other action by any Person under, constitute a default under, or give rise to
any right of termination, cancellation or acceleration or to a loss of any
benefit to which Stockholder is entitled under any provision of any agreement or
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other instrument binding on Stockholder or (iii) result in the imposition of
any Lien on any asset of Stockholder.
SECTION 2.03. OWNERSHIP OF SHARES. Stockholder is the record and
beneficial owner of the Shares, free and clear of any Lien and any other
limitation or restriction (including any restriction on the right to vote or
otherwise dispose of the Shares). None of the Shares is subject to any
voting trust or other agreement or arrangement with respect to the voting of
such Shares.
SECTION 2.04. TOTAL SHARES. Except for the Shares, Stockholder does
not beneficially own any (i) shares of capital stock or voting securities of
the Company, (ii) securities of the Company convertible into or exchangeable
for shares of capital stock or voting securities of the Company or (iii)
options or other rights to acquire from the Company any capital stock, voting
securities or securities convertible into or exchangeable for capital stock
or voting securities of the Company.
SECTION 2.05. FINDER'S FEES. No investment banker, broker, finder or
other intermediary is entitled to a fee or commission from Buyer or the
Company in respect of this Agreement based upon any arrangement or agreement
made by or on behalf of Stockholder.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Stockholder:
SECTION 3.01. CORPORATE AUTHORIZATION. The execution, delivery and
performance by Buyer of this Agreement and the consummation by Buyer of the
transactions contemplated hereby are within the corporate powers of Buyer and
have been duly authorized by all necessary corporate action. This Agreement
constitutes a valid and binding Agreement of Buyer.
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ARTICLE 4
COVENANTS OF STOCKHOLDER
Stockholder hereby covenants and agrees that:
SECTION 4.01. NO PROXIES FOR OR ENCUMBRANCES ON SHARES. Except
pursuant to the terms of this Agreement, Stockholder shall not, without the
prior written consent of Buyer, directly or indirectly, (i) grant any proxies
or enter into any voting trust or other agreement or arrangement with respect
to the voting of any Shares or (ii) sell, assign, transfer, encumber or
otherwise dispose of, or enter into any contract, option or other arrangement
or understanding with respect to the direct or indirect sale, assignment,
transfer, encumbrance or other disposition of, any shares of Common Stock
during the term of this Agreement. Stockholder shall not seek or solicit any
such acquisition or sale, assignment, transfer, encumbrance or other
disposition or any such contract, option or other arrangement or
understanding and agrees to notify Buyer promptly, and to provide all details
requested by Buyer, if Stockholder shall be approached or solicited, directly
or indirectly, by any Person with respect to any of the foregoing.
SECTION 4.02. NO SOLICITATION. (a) From the date hereof until the
termination hereof, Stockholder, in its capacity as a Stockholder, will not,
and will cause any investment bankers, attorneys, accountants, consultants
and other agents or advisors ("REPRESENTATIVES") of Stockholder not to,
directly or indirectly, (i) take any action to solicit, initiate, facilitate
or encourage the submission of any Acquisition Proposal, (ii) engage in any
discussions or negotiations with, or disclose any nonpublic information
relating to the Company or any of its Subsidiaries or afford access to the
properties, books or records of the Company or any of its Subsidiaries to,
any Person who may be considering making, or has made, an Acquisition
Proposal or (iii) grant any waiver or release under any standstill or similar
agreement to which Stockholder is a party with respect to any class of equity
securities of the Company; PROVIDED, that notwithstanding any other
provision of this Agreement, Stockholder may take any action in its capacity
as a director of the Company that the Board of Directors would be permitted
to take in accordance with the terms and conditions of the Merger Agreement.
(b) Stockholder will notify Buyer promptly (but in no event later than
24 hours) upon obtaining any knowledge of any Acquisition Proposal, any
indication that a Person is considering making an Acquisition Proposal or of
any request for nonpublic information relating to the Company or any of its
Subsidiaries or for access to the properties, books or records of the Company
or any of its Subsidiaries by any Person who may be considering making, or
has made, an
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Acquisition Proposal. Stockholder shall provide such notice orally and in
writing and shall identify the material terms and conditions of any such
Acquisition Proposal, indication or request. Stockholder shall keep Buyer
fully informed, on a current basis, of the status and material terms of any
such Acquisition Proposal, indication or request. Stockholder shall, and
shall cause its Representatives to, cease immediately and cause to be
terminated all activities, discussions or negotiations, if any, with any
Persons conducted prior to the date hereof with respect to any Acquisition
Proposal.
ARTICLE 5
MISCELLANEOUS
SECTION 5.01. FURTHER ASSURANCES. Buyer and Stockholder will each
execute and deliver, or cause to be executed and delivered, all further
documents and instruments and use its best efforts to take, or cause to be
taken, all actions and to do, or cause to be done, all things necessary,
proper or advisable under applicable laws and regulations, to consummate and
make effective the transactions contemplated by this Agreement.
SECTION 5.02. AMENDMENTS; TERMINATION. Any provision of this Agreement
may be amended or waived if, but only if, such amendment or waiver is in
writing and is signed, in the case of an amendment, by each party to this
Agreement or in the case of a waiver, by the party against whom the waiver is
to be effective. This Agreement shall terminate upon the termination of the
Merger Agreement in accordance with its terms.
SECTION 5.03. EXPENSES. All costs and expenses incurred in connection
with this Agreement shall be paid by the party incurring such cost or expense.
SECTION 5.04. 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, except that Buyer
may transfer or assign its rights and obligations to any Affiliate of Buyer.
SECTION 5.05. GOVERNING LAW. This Agreement shall construed in
accordance with and governed by the laws of the State of Delaware.
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SECTION 5.06. 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.
SECTION 5.07. SEVERABILITY. If any term, provision or covenant 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 and
covenants of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
SECTION 5.08. SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement
is not performed in accordance with the terms hereof and that the parties
shall be entitled to specific performance of the terms hereof in addition to
any other remedy to which they are entitled at law or in equity.
SECTION 5.09. CAPITALIZED TERMS. Capitalized terms used but not
defined herein shall have the respective meanings set forth in the Merger
Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
XXXXXX & XXXXX CORPORATION
By:
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Name:
Title:
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XXXXX X. XXXXXXX
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