Exhibit 10.4
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement") is made, executed and delivered as
of this 29th day of November, 1990, by and between NUMATICS ACQUISITION
CORPORATION, a Michigan corporation (the "Company"), and the persons listed on
the signature pages hereto, being the record holders of all of the issued and
outstanding Class A Common Stock of the Company (herein together with any person
hereafter executing and delivering a supplement to this Agreement pursuant to
Section 4.11 hereof being collectively referred to as the "Shareholders" and
individually as a "Shareholder").
WITNESSETH:
WHEREAS, the authorized capital stock of the Company consists of Class A
Common Stock, Class B Common Stock, Class C Common Stock, Series A Preferred
Stock and Series B Preferred Stock, as more fully described on Attachment I
hereto and the Restated Articles of Incorporation of the Company (the "Restated
Articles"); and
WHEREAS, all of the issued and outstanding capital stock of the Company is
owned of record as of the date of this Agreement as described on Attachment I
hereto; and
WHEREAS, the Shareholders, as the record holders of all of the issued and
outstanding Class A Common Stock, are entitled to 51% of the voting power of all
outstanding voting securities of the Company, as more fully described in the
Restated Articles; and
WHEREAS, the Shareholders desire to secure a continuity of the management
and business policies of the Company and to provide for certain restrictions and
obligations with respect to the control of the Company by a combination of their
votes (and/or written consents), as shareholders, pursuant to the terms of this
Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements of the parties hereto, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto hereby agree as follows:
ARTICLE I
SHAREHOLDER VOTING AGREEMENT
1.1 Voting Agreement. Each Shareholder hereby agrees to vote all Voting
Securities (as hereinafter defined), whether now owned or hereafter acquired by
such Shareholder, and any Voting Securities that such Shareholder shall
otherwise have the right or power to vote, and/or to take action by written
consent, on all
matters of any character whatsoever, except only as provided in Section 1.2
hereof, in such manner as may be directed by John H. Welker.
1.2 Exception to Voting Agreement. Other than in respect to the election
of directors, the voting agreements as to other matters specified in Section 1.1
shall not apply at any time, if any, in which the holders of Class B Stock of
the Company (as defined in the Restated Articles) are entitled to direct, and
have directed, the vote of the Class A as provided in the Restated Articles of
the Company and the Common Stock Co-Sale and Shareholder Agreement dated as of
the date of this Agreement among the Company, the signatories hereto and certain
other parties.
1.3 Proxies. Each Shareholder hereby agrees to execute and to deliver to
Welker, simultaneously with the execution and delivery of this Agreement, an
irrevocable proxy substantially in the form of Attachment 2 hereto (a "Proxy")
to secure the voting agreements contained in Section 1.1 of this Agreement. Each
Shareholder intends that each Proxy and all other proxies executed and delivered
by such Shareholder from time to time under this Agreement shall have the effect
of an "irrevocable proxy" under Section 422 of the Michigan Business Corporation
Act, as amended (the "MBCA") and that this Agreement shall be a voting agreement
among shareholders under Section 461 of the MBCA. Each Shareholder further
agrees that each Proxy and all other proxies executed and delivered by such
Shareholder under this Agreement shall be effective as to such Shareholder and
his heirs, personal representatives, guardians, conservators, other legal
representatives, successors and assigns, and any transferee of Voting Securities
held at any time by such Shareholder, until such time as this Agreement shall be
terminated in accordance with Article VIII hereof. During the term of this
Agreement, each Shareholder further agrees to execute and deliver such further
proxies, consents and other documents and instruments, and to take such further
action, as may be necessary or appropriate to further secure and/or effectuate
the voting agreements provided in this Agreement.
1.4 Recognition of Vote. The Company shall recognize the vote (or the
written consent) of Welker, as the holder of the Proxies, taken in accordance
with the provisions of this Article I as the action of the holders of the Voting
Securities subject to such Proxies.
1.5 Definition of Voting Securities. For the purposes of this Agreement,
the term "Voting Securities" shall mean and include the Class A Stock of the
Company and any and all other securities of the Company entitling the holder
thereof to vote upon any matter submitted to a vote of shareholders of the
Company.
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1.6 No Liability. Welker shall have no liability of any kind to any
Shareholder or to the Company in connection with the taking of any action, or
the failure to take any action, permitted under this Agreement, except for his
gross negligence or willful misconduct.
ARTICLE II
TERMINATION
This Agreement shall be effective as of the date first above written and
shall remain fully in effect and enforceable until the earlier to occur of (a),
(b) or (c) below:
(a) This Agreement shall be terminated by written instrument by and
between the Company and Shareholders owning of record not less than 51% of
the then outstanding Voting Securities owned by all Shareholders, or their
respective personal representatives, guardians, conservators, trustees,
other legal representatives, successors, or assigns; or
(b) Welker shall no longer own any Voting Securities of the Company
or shall no longer be employed by the Company or a subsidiary in any
capacity; or
(c) Shares of Common Stock of the Company shall have been sold to the
public pursuant to a registration statement filed by the Company with, and
declared effective by, the Securities and Exchange Commission under the
Securities Act of 1933, as amended, or any successor statute providing for
the registration of securities, other than any registration and sale of
Common Stock pursuant to an employee benefit plan or a dividend or interest
reinvestment plan.
ARTICLE III
LEGEND
3.1 Legend. All certificates representing Voting Securities at any time
held of record by any Shareholder shall contain a legend on the face of the
certificate substantially as follows:
"THIS CERTIFICATE IS SUBJECT TO AN IRREVOCABLE PROXY AND VOTING
AGREEMENTS NOTED ON THE REVERSE HEREOF."
and a legend on the reverse of the certificate substantially as follows:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AN
IRREVOCABLE PROXY AND TO CERTAIN VOTING AGREEMENTS AS GRANTED AND PROVIDED
IN A CERTAIN VOTING AGREEMENT (THE "AGREEMENT") DATED AS OF NOVEMBER 29,
1990, BY AND BETWEEN THE
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ISSUER AND CERTAIN SHAREHOLDERS OF THE ISSUER, A COPY OF WHICH IS ON FILE
WITH THE SECRETARY OF THE ISSUER. THE AGREEMENT PROVIDES, AMONG OTHER
THINGS, THAT (i) THE SHARES REPRESENTED BY THIS CERTIFICATE WILL BE VOTED
IN SUCH MANNER AS MAY BE DIRECTED BY JOHN H. WELKER AND (ii) THE VOTING
AGREEMENTS SET FORTH IN THE AGREEMENT WILL CONTINUE TO APPLY TO
TRANSFEREES. THIS LEGEND PROVIDES ONLY SUMMARY INFORMATION REGARDING THE
AGREEMENT, WHICH SUMMARY IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THE
AGREEMENT."
Each Shareholder agrees to deliver such Shareholder's certificates
representing Voting Securities to the Company for imposition of the above
legends.
3.2 Filing of Agreement. An executed counterpart of this Agreement shall
be put and remain on file during the term hereof at the principal executive
office of the Company.
ARTICLE IV
MISCELLANEOUS
4.1 Notices. Any notice to be given pursuant to this Agreement shall be
deemed to have been given and received, and to be effective for all purposes,
when delivered personally or when sent by registered mail to the addresses of
the parties hereto as set forth on the signature page hereof (or such other
addresses as the parties may hereafter designate in writing).
4.2 Specific Performance. Each Shareholder acknowledges and agrees that
any breach of this Agreement by any Shareholder will cause incalculable and
irremediable damages to the other Shareholders, and that in the event that any
Shareholder shall breach or attempt to breach the terms of this Agreement, each
of the other Shareholders shall be entitled as a matter of right to obtain from
any court of competent jurisdiction an injunction (i) prohibiting further
breaches of this Agreement, (ii) rescinding any action taken, and (iii)
specifically enforcing the terms of this Agreement.
4.3 Further Instruments and Documents. Each of the parties hereto
covenants and agrees that such party will make, execute and deliver any and all
such other and further instruments, papers and documents, and will do and
perform any and all such further acts and things, as shall be or become
necessary, proper or convenient to carry out, put into effect or make operative
their respective covenants, promises and undertakings contained in this
Agreement.
4.4 Modification. This Agreement constitutes the entire agreement between
the parties hereto with respect to the subject matter hereof, and may not be
amended, modified or varied except by an instrument in writing executed by the
parties hereto and by holders of at least 2/3rds of the outstanding Class B
Stock of the
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Company in the same manner as this Agreement.
4.5 Construction. This Agreement shall be governed in all respects,
whether as to validity, construction, capacity, performance or otherwise, under
the laws of the State of Michigan.
4.6 Severance. In the event that any provision hereof shall be determined
to be invalid or unenforceable for any reason, such invalidity or
unenforceability shall not affect the validity and enforceability of the
remaining valid and enforceable provisions hereof, which shall be construed as
if such invalid or unenforceable provisions had not been included in this
Agreement.
4.7 Successors Bound. This Agreement shall be binding upon and inure to
the benefit of the parties hereto, their personal representatives, successors
and assigns, and shall further be binding upon any transferee of any Voting
Securities subject to this Agreement, whether or not such transferee shall have
complied with Section 4.11 hereof.
4.8 Suppression. This Agreement cancels and supersedes any prior verbal or
written agreement between the parties hereto pertaining to the subject matter
hereof.
4.9 Interpretation. Headings contained in this Agreement are for reference
purposes only and shall not affect the meaning or interpretation of this
Agreement. Whenever reasonably necessary, pronouns of any gender shall be deemed
synonymous, as shall singular and plural pronouns.
4.10 Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed an original, but together they shall constitute
one and the same instrument.
4.11 Additional Shareholders. It is contemplated that persons other than
the persons listed on the signature pages hereto, including, without limitation,
(a) employees of the Company or a subsidiary and/or a deferred compensation
trust having any interest in Class A Stock or securities convertible into Class
A Stock to be issued by the Company under the Numatics Acquisition Corporation
Deferred Stock Compensation Plan and (b) transferees of Class A Stock or
securities convertible into Class A Stock as permitted under the Stock Transfer
Agreement dated as of even date herewith among the Company and certain
investors, will, as a condition to receiving Class A Stock, become a
"Shareholder" under this Agreement by executing and delivering to Welker a
supplement to this Agreement in substantially the form of Attachment III hereto
together with a Proxy in the form of Attachment II hereto. Welker agrees to give
notice to the other parties hereto of the addition of any person as a
Shareholder hereunder promptly after receipt of the foregoing documents.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first above written.
SHAREHOLDERS:
/s/ JOHN E. ACUFF
-----------------------------------
John E. Acuff
11877 Stoney Ridge
Brighton, Michigan 48116
/s/ WILLIAM L. BEHAN
-----------------------------------
William L. Behan
9546 Butler Drive
P. O. Box 1144
Brentwood, Tennessee 37024
/s/ ROY A. CLARK
-----------------------------------
Roy A. Clark
4983 Juniper
Milford, Michigan 48382
/s/ DAVID K. DODDS
-----------------------------------
David K. Dodds
16 Croydon Dr.
P. O. Box 4
Arva, Ontario N0M 1C0
Canada
/s/ HENRY FLEISCHER
-----------------------------------
Henry Fleischer
477 Ashley Drive
Grand Blanc, Michigan 48439
/s/ DONALD E. MCGEACHY
-----------------------------------
Donald E. McGeachy
4808 Ravinewood Drive
Milford, Michigan 48382
/s/ ROBERT P. ROBESON
-----------------------------------
Robert P. Robeson
3940 Penberton Drive
Ann Arbor, Michigan 48105
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/s/ JOHN H. WELKER
___________________________________
John H. Welker
4740 Chevron
Highland, Michigan 48356
COMPANY:
NUMATICS ACQUISITION CORPORATION
/s/ JOHN H. WELKER
By
---------------------------------
Its: President
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ATTACHMENT I
DESCRIPTION OF AUTHORIZED AND ISSUED CAPITAL STOCK
--------------------------------------------------
Common Stock
------------
Class A
-------
Owned By Number of Shares Owned
-------- ----------------------
John E. Acuff 432
William L. Behan 576
Roy A. Clark 864
David K. Dodds 864
Henry Fleischer 624
Donald E. McGeachy 864
Robert P. Robeson 576
John Welker 15,200
Class B
-------
Owned By Number of Shares Owned
-------- ----------------------
Norwest 42,350.65
Greylock Limited Partnership 13,234.555
Greylock Investments Limited
Partnership 13,234.555
Heller 2,646.91
Class C
Owned By Number of Shares Owned
-------- ----------------------
SMRS 7,757.57
Norwest 459.71
Greylock Limited Partnership 143.66
Greylock Investments Limited
Partnership 143.66
Heller 28.73
Preferred Stock
Series A Preferred
Owned By Number of Shares Owned
-------- ----------------------
Norwest 1,777.778
Greylock Limited Partnership 555.5555
Greylock Investments Limited
Partnership 555.5555
Heller 111.111
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Series B Preferred
------------------
Series B Preferred Stock will not be issued at the closing
date. However, Series B Preferred Stock may be issued pursuant to
the Contingent Capital Agreement by and between the Company and
John Welker
John E. Acuff
William L. Behan
Roy A. Clark
David K. Dodds
Henry Fleischer
Donald E. McGeachy
Robert P. Robeson
Norwest
Greylock Limited Partnership
Greylock Investments Limited Partnership and
Heller, as Agent
ATTACHMENT II
IRREVOCABLE PROXY
KNOW ALL MEN BY THESE PRESENTS, that the Undersigned does hereby constitute
and appoint JOHN H. WELKER (the "Attorney"), as the Undersigned's true and
lawful attorney, for the Undersigned and in the Undersigned's name, place and
stead, at any meeting of Numatics Acquisition Corporation (the "Company"), to
vote all Voting Securities (as defined below) of the Company, now owned or
hereafter acquired by the Undersigned, or which the Undersigned shall have the
right or power to vote, upon any proposal which may come before the shareholders
of the Company. This proxy is executed and delivered by the Undersigned
pursuant to and in accordance with the terms, provisions, requirements and
limitations of the Voting Agreement dated as of November __, 1990 (the
"Agreement") by and between the Company and each of the Shareholders (as defined
therein). The Attorney shall have full power and authority to act for the
Undersigned and in the Undersigned's name, place and stead at said meetings in
voting in accordance with the Agreement as freely as the Undersigned could do if
personally present and acting.
This proxy is irrevocable and is intended to have the effect of an
"irrevocable proxy" under Section 422 of the Michigan Business Corporation Act,
as amended (the "MBCA"), and is made and given pursuant to Article I of the
Agreement which is intended as a voting agreement under Section 461 of the MBCA.
This proxy shall be binding, effective and valid as to the Undersigned, and the
Undersigned's heirs, personal representatives, guardians, conservators, other
legal representatives, successors and assigns, until such time as the Agreement
shall be terminated in accordance with its terms notwithstanding the death,
incompetence or mental illness of the Undersigned or the sale or transfer, if
any, of any or all of the Voting Securities owned by the Undersigned.
As used in this proxy, the term "Voting Securities" means and includes the
Class A Common Stock of the Company and any and all other securities of the
Company entitling the holder to vote upon any matter submitted to a vote of
shareholders of the Company.
IN WITNESS WHEREOF, the Undersigned has executed this Proxy as of the ____
day of November, 1990.
______________________________
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ATTACHMENT III
SUPPLEMENT TO VOTING AGREEMENT
This Supplement to Voting Agreement (the "Supplement") is made, executed
and delivered by the undersigned as of this _____ day of ___________, 19__.
WITNESSETH:
WHEREAS, Numatics Acquisition Corporation and certain shareholders thereof
have entered into a Voting Agreement dated as of November __, 1990 (the
"Agreement") providing, among other things, certain voting agreements with
respect to the shares of Class A Common Stock and other voting securities of the
Company held by the parties thereto; and
WHEREAS, it is a condition to either (a) the issuance or transfer to the
undersigned of shares of Class A Stock or securities convertible into Class A
Stock, or (b) of the issuance of Class C Stock under the Numatics Acquisition
Corporation Deferred Stock Compensation Plan to or for the benefit of the
undersigned, that the undersigned become a party to the Agreement and the
undersigned is executing and delivering this Supplement in satisfaction of such
condition.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the undersigned hereby agrees as follows:
1. Capitalized terms used herein shall have the respective meanings set
forth in the Agreement.
2. By execution and delivery of this Supplement, the undersigned hereby
joins the Agreement as a "Shareholder" and hereby agrees to be bound by and
perform all of the covenants, promises, agreements and undertakings of a
Shareholder under the Agreement to the same extent as if the undersigned had
been an original signatory to the Agreement.
3. Simultaneously with the execution and delivery of this Supplement, the
undersigned is executing and delivering a Proxy to Welker.
4. This Supplement shall be governed in all respects, whether as to
validity, construction, capacity, performance or otherwise, under the laws of
the State of Michigan.
IN WITNESS WHEREOF, the undersigned has executed this Supplement as of the
day and year first above written.
______________________________
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