VOTING AGREEMENT FOR CERTAIN ▇▇▇▇▇▇▇ STOCKHOLDERS
VOTING AGREEMENT dated as of April __, 1999 (the "Agreement") between
Richmont Marketing Specialists Inc., a Delaware corporation (the
"Company"), and Monroe & Company II, LLC, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ (collectively the "Holders").
The Company, ▇▇▇▇▇▇▇ American Corporation, a Delaware corporation
("▇▇▇▇▇▇▇"), and MS Acquisition Limited, a Texas limited partnership,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
propose to enter into an Agreement and Plan of Merger dated as of April
___, 1999 (the "Merger Agreement"), pursuant to which the Company would be
merged (the "Merger") with and into ▇▇▇▇▇▇▇, and each outstanding share of
capital stock of the Company would be converted into shares of common
stock, par value $.01 per share, of ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇ Common Stock");
As a condition of its entering into the Merger Agreement, the Company
has requested the Holders to agree, and the Holders have agreed, to enter
into this Agreement; and
Prior to the date hereof, the Company and the Holders had no
agreement, arrangement or understanding (as defined in Section 203 of the
Delaware General Corporation Law (the "DGCL")) for the purpose of
acquiring, holding, voting or disposing of shares of capital stock, of any
class or series, of ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇ Capital Stock").
NOW, THEREFORE, the parties hereto agree as follows:
1. Representations and Warranties of the Holders. Each Holder
represents and warrants to ▇▇▇▇▇▇▇ as follows:
(a) Ownership of Securities. The Holder is the record and
beneficial owner of the number of shares of ▇▇▇▇▇▇▇ Capital Stock set forth
on the signature page to this Agreement (the "Existing Securities," and,
together with any shares of ▇▇▇▇▇▇▇ Capital Stock or other securities of
▇▇▇▇▇▇▇ hereafter acquired by the Holder, the "Subject Securities"). Other
than as disclosed in the ▇▇▇▇▇▇▇ Disclosure Letter (as such term is defined
in the Merger Agreement), the Holder does not own any capital stock or
other securities of ▇▇▇▇▇▇▇ (including any options, warrants, rights,
commitments, preemptive right or agreements of any kind for the issuance or
sale of, or outstanding securities convertible into any shares of capital
stock, of any class, of ▇▇▇▇▇▇▇, or outstanding warrants, options or other
rights to acquire any such convertible securities or stock appreciation
rights or other instrument whose value is derived from the ▇▇▇▇▇▇▇ Capital
Stock) on the date of this Agreement other than the Existing Securities.
The Holder has sole voting power and sole power to issue instructions with
respect to the voting of the Existing Securities, sole power of
disposition, sole power of exercise or conversion and the sole power to
demand appraisal rights, in each case with respect to all of the Existing
Securities. On the date of the meeting of stockholders of ▇▇▇▇▇▇▇ or, if
applicable, on the effective date of the written consent in lieu of a
meeting, at which or pursuant to which the Merger and the Merger Agreement
are to be considered, will have sole voting power and sole power to issue
instructions with respect to the voting of all of the Subject Securities,
sole power of disposition, sole power of exercise or conversion and the
sole power to demand appraisal rights, in each case with respect to all of
the Subject Securities.
(b) Power; Binding Agreement. The Holder has full power and
authority to enter into and perform all of the Holder's obligations under
this Agreement. If Holder is an entity, the execution by Holder of this
Agreement and the performance of its obligations hereunder have been duly
authorized by all necessary corporate or partnership action on the part of
Holder and no other action on the part of Holder is required in connection
therewith. This Agreement has been duly and validly executed and delivered
by the Holder and constitutes a valid and binding agreement of the Holder,
enforceable against the Holder in accordance with its terms.
(c) No Conflicts. 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 the Holder and the
consummation by the Holder of the transactions contemplated hereby and
neither the execution and delivery of this Agreement by the Holder nor the
consummation by the Holder of the transactions contemplated hereby nor
compliance by the Holder with any of the provisions hereof shall conflict
with or result in any breach of any applicable organizational documents of
▇▇▇▇▇▇▇ applicable to the Holder or, if applicable, any organizational
documents of the Holder (including without limitation any charter documents
or partnership agreement), 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 the Holder is a party or by which the
Holder's properties or assets may be bound or violate any order, writ,
injunction, decree, judgment, order, statute, rule or regulation applicable
to the Holder or any of the Holder's properties or assets.
(d) No Liens. The Existing Securities are now and, at all times
during the term hereof, the Subject Securities will be held by the Holder,
or by a nominee or custodian for the benefit of such Holder, 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 encumbrances arising hereunder.
2. Agreement to Vote Shares. At every meeting of the stockholders of
▇▇▇▇▇▇▇ called with respect to any of the following, and at every
postponement or adjournment thereof, and on every action or approval by
written consent of the stockholders of ▇▇▇▇▇▇▇ with respect to any of the
following, each Holder agrees that it shall vote all of the Subject
Securities that it owns beneficially and of record on the record date of
any such vote: (i) in favor of the Merger, the execution and delivery of
the Merger Agreement and the approval of the terms thereof and each of the
other transactions contemplated by the Merger Agreement and (ii) 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 ▇▇▇▇▇▇▇ or any of its subsidiaries; (2) a sale, lease or transfer
of a material amount of assets of ▇▇▇▇▇▇▇ or any of its subsidiaries or a
reorganization, recapitalization, dissolution or liquidation of ▇▇▇▇▇▇▇ or
any of its subsidiaries; (3) (a) any change in the majority of the board of
directors of ▇▇▇▇▇▇▇ or any of its subsidiaries; (b) any material change in
the present capitalization of ▇▇▇▇▇▇▇ or any of its subsidiaries or any
amendment of the Certificate of Incorporation or similar governing document
of ▇▇▇▇▇▇▇ or any of its subsidiaries; (c) any other material change in the
corporate structure or business of ▇▇▇▇▇▇▇ or any of its subsidiaries; or
(d) any other action, which, in the case of each of the matters referred to
in clauses (a), (b), (c) or (d) above, is intended, or could reasonably be
expected, to impede, interfere with, delay, postpone, discourage or
materially adversely affect the contemplated economic benefits to the
Company of the Merger or the transactions contemplated by the Merger
Agreement or this Agreement.
3. IRREVOCABLE PROXY. EACH OF THE HOLDERS HEREBY GRANTS TO, AND
APPOINTS THE COMPANY AND THE CHIEF EXECUTIVE OFFICER OF THE COMPANY AND THE
CHIEF FINANCIAL OFFICER OF THE COMPANY, IN THEIR RESPECTIVE CAPACITIES AS
OFFICERS OF THE COMPANY, AND ANY INDIVIDUAL WHO SHALL HEREAFTER SUCCEED TO
ANY SUCH OFFICE OF THE COMPANY, AND ANY OTHER DESIGNEE OF THE COMPANY, EACH
OF THEM INDIVIDUALLY, THE HOLDER'S PROXY AND ATTORNEY-IN-FACT (WITH FULL
POWER OF SUBSTITUTION) TO VOTE OR ACT BY WRITTEN CONSENT WITH RESPECT TO
THE HOLDER'S SUBJECT SECURITIES IN ACCORDANCE WITH SECTION 2 HEREOF. THIS
PROXY IS COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE, AND EACH HOLDER
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 IT WITH RESPECT TO THE SUBJECT SECURITIES.
4. Representations and Warranties of the Company.
(a) Power; Binding Agreement. The Company has full corporate
power and authority to enter into and perform all of its obligations under
this Agreement. The execution by the Company of this Agreement and the
performance of its obligations hereunder have been duly authorized by all
necessary corporate action on the part of the Company and no other action
on the part of the Company is required in connection therewith. This
Agreement has been duly and validly executed and delivered by the Company
and constitutes a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms.
(b) No Conflicts. 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 the Company and the
consummation by the Company of the transactions contemplated hereby and
neither the execution and delivery of this Agreement by the Company nor the
consummation by the Company of the transactions contemplated hereby nor
compliance by the Company with any of the provisions hereof shall conflict
with or result in any breach of any organizational documents applicable to
the Company or 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 the Company is a party or by which the Company's properties or assets
may be bound or violate any order, writ, injunction, decree, judgment,
order, statute, rule or regulation applicable to the Company or any of the
Company's properties or assets.
5. Covenants of the Holder. Each of the Holders hereby agree and
covenant that:
(a) Restriction on Transfer, Proxies and Noninterference. The
Holder shall not, directly or indirectly: (i) except pursuant to the terms
of the Merger Agreement offer for sale, sell, transfer, tender, pledge,
encumber, assign or otherwise dispose of, or enter into any contract,
option or other arrangement or understanding with respect to or consent to
the offer for sale, sale, transfer, tender, pledge, encumbrance, assignment
or other disposition of, any or all of the Subject Securities, except that
Monroe & Company II, LLC may distribute its Subject Securities to its
members so long as such distributees agree to be bound by the terms of this
Agreement; (ii) except as contemplated by this Agreement and the Merger
Agreement, grant any proxies or powers of attorney, deposit any such
Subject Securities into a voting trust or enter into a voting agreement
with respect to any of the Subject Securities; or (iii) take any action
that would make any representation or warranty contained herein untrue or
incorrect or have the effect of preventing, restricting or disabling such
Holder from performing its obligations under this Agreement.
6. Assignment; Benefits. Other than as permitted in the preceding
sentence, this Agreement may not be assigned by any party hereto without
the prior written consent of the other party. This Agreement shall be
binding upon, and shall inure to the benefit of, the Holder, the Company
and their respective successors and permitted assigns. Any distributee of
Subject Securities in accordance with Section 5(a)(i) hereof shall be
deemed to be a "Holder" for purposes of this Agreement.
7. Notices. Any notice required to be given hereunder shall be in
writing and shall be sent by facsimile transmission (confirmed by any of
the methods that follow), courier service (with proof of service), hand
delivery or certified or registered mail (return receipt requested and
first-class postage prepaid) and to the address of such party set forth on
the signature pages hereto or to such other address as any party shall
specify by written notice shall be deemed to have been delivered as of the
date so delivered.
8. Specific Performance. The parties hereto agree that irreparable
harm would occur in the event that any of the provisions of this Agreement
were not performed in accordance with its 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 hereof in any court of the
United States or any state thereof having jurisdiction, this being in
addition to any other remedy to which they are entitled at law or in
equity.
9. Amendment. This Agreement may not be amended or modified, except
by an instrument in writing signed by or on behalf of each of the parties
hereto. This Agreement may not be waived by either party hereto, except by
an instrument in writing signed by or on behalf of the party granting such
waiver.
10. Governing Law; Jurisdiction and Venue. This Agreement shall be
governed by, construed and enforced in accordance with the laws of the
State of Delaware, without regard to its rules regarding conflict of laws.
The parties hereto hereby irrevocably and unconditionally consent to and
submit to the exclusive jurisdiction of the courts of the State of Delaware
for any actions, suits or proceedings arising out of or relating to this
Agreement, the transactions contemplated hereby or any document referred to
herein (and the parties agree not to commence any action, suit or
proceeding related thereto except in such courts), and further agree that
service of any process, summons, notice or document by U.S. registered mail
to the respective addresses set forth on the signature pages hereto shall
be effective service of process for any such action, suit or proceeding
brought against any party in any such court. The parties irrevocably and
unconditionally waive any objection to the laying of venue of any action,
suit or proceeding arising out of this Agreement or the transactions
contemplated hereby, in the courts of the State of Delaware or the United
States of America located in the State of Delaware, and hereby further
irrevocably and unconditionally waive and agree not to plead or claim in
any such court that any such action, suit or proceeding brought in any such
court has been brought in any inconvenient forum.
11. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same agreement.
12. Defined Terms. Terms used herein but not otherwise defined shall
have the meanings set forth in the Merger Agreement.
13. Termination. This Agreement shall terminate upon the earlier of
(i) the consummation of the Merger or (ii) the termination of the Merger
Agreement pursuant to its terms. Upon any termination of this Agreement,
this Agreement shall thereupon become void and of no further force and
effect, and there shall be no liability in respect of this Agreement or of
any transactions contemplated hereby or by the Merger Agreement on the part
of any party hereto or any of its directors, officers, partners,
stockholders, employees, agents, advisors, representatives or affiliates;
provided, however, that nothing herein shall relieve any party from any
liability for such party's willful breach of this Agreement; and provided
further that nothing herein shall limit, restrict, impair, amend or
otherwise modify the rights, remedies, obligations or liabilities of any
person under any other contract or agreement, including, without
limitation, the Merger Agreement.
[Remainder of this Page Intentionally Left Blank]
[VOTING AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, this Agreement has been executed by or on behalf
of each of the parties hereto, all as of the date first above written
above.
RICHMONT MARKETING
SPECIALISTS INC.
By:________________________________
Name:
Title:
Address:
-------
___________________________________
___________________________________
___________________________________
STOCKHOLDERS:
MONROE & COMPANY II, LLC
By:________________________________
Name:
Title:
Existing Securities:
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Class:_____________________________
Number of Shares:__________________
Address:
-------
___________________________________
___________________________________
___________________________________
[VOTING AGREEMENT SIGNATURE PAGE]
__________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Existing Securities:
-------------------
Class:____________________________
Number of Shares:_________________
Address:
-------
__________________________________
__________________________________
__________________________________
__________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Existing Securities:
-------------------
Class:____________________________
Number of Shares:_________________
Address:
-------
__________________________________
__________________________________
__________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Existing Securities:
-------------------
Class:___________________________
Number of Shares:________________
Address:
-------
__________________________________
__________________________________
__________________________________
[VOTING AGREEMENT SIGNATURE PAGE]
__________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Existing Securities:
-------------------
Class:____________________________
Number of Shares:_________________
Address:
-------
__________________________________
__________________________________
__________________________________
__________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Existing Securities:
-------------------
Class:____________________________
Number of Shares:_________________
Address:
-------
__________________________________
__________________________________
__________________________________
__________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Existing Securities:
-------------------
Class:____________________________
Number of Shares:_________________
Address:
-------
__________________________________
__________________________________
__________________________________
