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EXHIBIT 9.1
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as of October 6, 1999, by and
among Schoeller Packaging Systems GmbH, a private company organized under the
laws of the Federal Republic of Germany ("SPS") and the individuals and other
parties listed on Schedule A attached hereto (together, the "Stockholders"),
each a stockholder of PalEx, Inc., a corporation organized under the laws of
Delaware (the "Company").
WHEREAS, concurrently with the execution of this Agreement, the Company,
SPS and certain other parties have entered into an Amended and Restated
Agreement and Plan of Reorganization (as the same may be amended from time to
time, the "Merger Agreement."), providing for the merger (the "Merger") of
Merger Sub (as defined in the Merger Agreement) with and into the Company
pursuant to the terms and conditions of the Merger Agreement;
WHEREAS, each Stockholder owns the number of shares of common stock, par
value $.01 per share, of the Company (the "Common Stock"), set forth opposite
his, her or its name on Schedule A attached hereto (such shares of Common Stock,
together with any other shares of capital stock of the Company acquired by such
Stockholder after the date hereof and during the term of this Agreement
(including through the exercise of any stock options, warrants or similar
instruments), being collectively referred to herein as the ("Shares");
WHEREAS, each of the Stockholders has agreed, upon the terms and subject to
the conditions set forth herein, to vote its Shares at a meeting of the
Company's Stockholders in favor of approval of the Merger Agreement; and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, SPS has requested that each Stockholder enter into this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which is hereby acknowledged, the parties hereto
agree as follows:
1. Agreement to Vote Shares. The Stockholders agree during the term of
this Agreement to vote their respective Shares, in person or by proxy, in favor
of approval of the Merger Agreement at every meeting of the stockholders of the
Company at which such matters are considered and at every adjournment thereof
(each, a "Stockholders' Meeting").
2. No Voting Trusts. Each of the Stockholders agrees that it will not,
nor will such Stockholder permit any entity under such Stockholder's control to,
deposit any of such Stockholder's Shares in a voting trust or subject any of its
Shares to any arrangement with respect to the voting of its Shares inconsistent
with this Agreement.
3. No Other Grant of Proxy. Each of the Stockholders agrees that it will
not,
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directly or indirectly, grant any proxies or powers of attorney with respect to
the Shares (other than in connection with matters proposed by the Company, other
than approval of the Merger Agreement, at an annual meeting of the Company) to
any individual, corporation, partnership, limited liability company, joint
venture, association, trust, unincorporated organization or other entity (each,
a "person") other than SPS or any person designated in writing by SPS.
4. Limitation on Dispositions. Without the prior written consent of SPS,
each of the Stockholders shall not transfer, sell, assign or convey, or offer or
agree to transfer, sell, assign or convey, any of their Shares during the term
of this Agreement. Without limiting the generality of the foregoing, each of
the Stockholders shall not grant to any party any option or right to purchase
their Shares or any interest therein. Each of the Stockholders acknowledge and
agree that the transfer agent with respect to their Shares shall be given notice
that their Shares are subject to the terms of this Agreement and such Shares
shall not be transferred except in accordance with the terms of this Agreement.
5. Specific Performance. Each party hereto acknowledges that it will be
impossible to measure in money the damage to the other party if a party hereto
fails to comply with the obligations imposed by this Agreement, and that, in the
event of any such failure, the other party will not have an adequate remedy at
law or in damages. Accordingly, each party hereto agrees that injunctive relief
or other equitable remedy, in addition to remedies at law or damages, is the
appropriate remedy for any such failure and will not oppose the granting of such
relief on the basis that the other party has an adequate remedy at law. Each
party hereto agrees that it will not seek, and agrees to waive any requirement
for, the securing or posting of a bond in connection with any other party's
seeking or obtaining such equitable relief.
6. Term of Agreement; Termination. The term of this Agreement shall
commence on the date hereof, and such term and this Agreement shall terminate
upon the earliest to occur of 10. (i) the Effective Time (as defined in the
Merger Agreement); (ii) the date on which the Merger Agreement is terminated;
and (iii) May 31, 2000. Upon such termination, no party shall have any further
obligations or liabilities hereunder; provider, however, that such termination
shall not relieve any party from liability for any breach of this Agreement
prior to such termination.
7. Stockholder Capacity. No person executing this Agreement who is or
becomes during the term hereof a director or officer of the Company (or who has
been designated to the Board of Directors of the Company by a Stockholder) makes
(or shall be deemed to have made) any agreement or understanding herein in his
or her capacity as such director or officer. Without limiting the generality of
the foregoing, each Stockholder signs solely in its, his capacity as the record
and/or beneficial owner, as applicable, of such Stockholder's Shares and nothing
herein shall limit or affect any actions taken by a Stockholder (or a designee
of a Stockholder) in his or her capacity as an officer or director of the
Company in exercising its rights under the Merger Agreement.
8. Entire Agreement. This Agreement supersedes all prior agreements,
written or
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oral, among the parties hereto with respect to the subject matter hereof,
including, without limitation, that certain Voting Agreement dated as of March
29, 1999 by and among SPS and the Stockholders, and contains the entire
agreement among the parties with respect to the subject matter hereof. This
Agreement may not be amended, supplemented or modified, and no provisions hereof
may be modified or waived, except by an instrument in writing signed by all
parties hereto. No waiver of any provisions hereof by any party shall be deemed
a waiver of any other provisions hereof by any such party, nor shall any such
waiver be deemed a continuing waiver of any provision hereof by such party.
9. Notices. All notices, consents, requests, instructions, approvals
and other communications provided for herein shall be in writing and shall be
deemed to have been duly given if mailed, by first class or registered mail,
five (5) business days after deposit in the United States Mail, or if telexed or
telecopied, sent by telegram, or delivered by hand or reputable overnight
courier, when confirmation is received, in each case as follows:
If to the Stockholders to:
[Stockholder] c/o Edward Rhyne
General Counsel
PalEx, Inc.
6829 Flintlock Road
Houston, Texas 77040
Telephone: (713) 332-6145
Facsimile: (713) 332-6146
With a copy to:
Edward Rhyne
General Counsel
PalEx, Inc.
6829 Flintlock Road
Houston, Texas 77040
Telephone: (713) 332-6145
Facsimile: (713) 332-6146
If to SPS to:
Schoeller Packaging Systems GmbH
Zugspitzstrasse 15
D-82049 Pullach
Germany
Attention: Martin Schoeller
Telephone: 49 89 74491 0
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Facsimile: 49 89 74491 299
With a copy to:
King & Spalding
1185 Avenue of the Americas
New York, New York 10036-4003
Attention: Stephen M. Wiseman, Esq.
Telephone: (212) 556-2265
Facsimile: (212) 556-2222
or such other persons or addresses as may be designated in writing by the party
to receive such notice. Nothing in this Section 9 shall be deemed to constitute
consent to the manner and address for service of process in connection with any
legal proceeding (including litigation arising out of or in connection with this
Agreement), which service shall be effected as required by applicable law.
10. Miscellaneous. (a) Nothing contained in this Agreement shall be
construed as creating any liability on the part of the Stockholders under the
Merger Agreement.
(b) This Agreement shall be deemed a contract made under, and for all
purposes shall be construed in accordance with, the laws of the State of
Delaware, without reference to its conflicts of law principles.
(c) If any provision of this Agreement or the application of such
provision to any person or circumstances shall be held in invalid or
unenforceable by a court of competent jurisdiction, such provision or
application shall be unenforceable only to the extent of such invalidity or
unenforceability, and the remainder of the provision held invalid or
unenforceable and the application of such provision to persons or circumstances,
other than the party as to which it is held invalid, and the remainder of this
Agreement, shall not be affected.
(d) This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
(e) All Section headings herein are for convenience of reference only and
are not part of this Agreement, and no construction or reference shall be
derived therefrom.
(f) The obligations of the Stockholders set forth in this Agreement shall
not be effective or binding upon any Stockholder until after such time as the
Merger Agreement is executed and delivered by the entities that are a party
thereto.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
SCHOELLER PACKAGING SYSTEMS GMBH
By: /s/ Martin Schoeller /s/ Christoph Schoeller
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/s/ Sam W. Humphreys
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/s/ Elliot S. Pearlman
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ELLIOT S. PEARLMAN LIVING TRUST
DATED AUGUST 7, 1992
By: /s/ Elliot S. Pearlman
Elliot S. Pearlman, Trustee
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ELLIOT S. PEARLMAN LIVING TRUST
DATED JULY 2, 1996
By: /s/ Elliot S. Pearlman
Elliot S. Pearlman, Trustee
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THE GIBSON REVOCABLE TRUST DATED
DECEMBER 30, 1982
By: /s/ Gregg C. Gibson
Gregg C. Gibson, Trustee
By: /s/ Judith Gibson
Judith Gibson, Trustee
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MURPHY FAMILY PARTNERS, LTD.
By: /s/ J. Michael Murphy
J. Michael Murphy, General Partner
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MURPHY FAMILY LAND COMPANY, LTD.
By: /s/ J. Michael Murphy
J. Michael Murphy, General Partner
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MURPHY FAMILY INVESTMENTS, LTD.
By: /s/ J. Michael Murphy
J. Michael Murphy, General Partner
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CDRCO NW LLC.
By: /s/ A. Joseph Cruz
A. Joseph Cruz
By: /s/ Philip M. Freeman
Philip M. Freeman
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/s/ Stephen C. Sykes
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/s/ Casey A. Fletcher
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A.E. HOLLAND JR., TRUSTEE OF THE
ALFRED ELTON HOLLAND JR. REVOCABLE
TRUST DATED SEPTEMBER 4, 1994
By: /s/ A.E. Holland, Jr.
A.E. Holland, Jr., Trustee
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/s/ Howe Q. Wallace
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TROY FRASER & LINDA FRASER JT TEN
/s/ Troy Fraser
/s/ Linda Fraser
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Schedule A
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1. The Pearlman Group/1/
2. The Gibson 1982 Revocable Trust dated December 30, 1982
3. The Murphy Group/2/
4. CDRCo NW LLC/3/
5. Stephen C. Sykes
6. Casey A. Fletcher
7. A. E. Holland Jr., Trustee of the Alfred Elton Holland Jr. Revocable Trust
dated September 4, 1994
8. Howe Q. Wallace
9. Troy Fraser & Linda Fraser JT TEN
10. Sam W. Humphreys
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/1/For purposes of this Schedule A only, "The Pearlman Group" means Elliot
S. Pearlman, the Elliot S. Pearlman Living Trust dated August 7, 1992 and the
Elliot S. Pearlman Living Trust dated July 2, 1996
/2/For purpose of this Schedule A only, "the Murphy Group" means Murphy
Family Partners, Ltd., Murphy Family Land Company, Ltd. and Murphy Family
Investments, Ltd.
/3/Controlled by A. Joseph Cruz and Phil Freeman