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EXHIBIT 4.6
STOCKHOLDERS' VOTING AGREEMENT
THIS STOCKHOLDERS' VOTING AGREEMENT ("Agreement") is made and entered
into as of this 22nd day of November, 1996, by and among HAWK CORPORATION, a
Delaware corporation (the "Company"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇"), the ▇▇▇▇▇▇▇
FAMILY LIMITED PARTNERSHIP, an Ohio limited partnership ("▇▇▇▇▇▇▇ FLP"), ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, ▇▇. ("▇▇▇▇▇▇▇▇"), the ▇▇▇▇▇▇▇▇ FAMILY LIMITED PARTNERSHIP, an Ohio
limited partnership ("▇▇▇▇▇▇▇▇ FLP"), ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇") and the ▇▇▇▇▇▇
FAMILY LIMITED PARTNERSHIP, an Ohio limited partnership ("▇▇▇▇▇▇ FLP").
WHEREAS, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ are the managing general partners
of ▇▇▇▇▇▇▇ FLP, ▇▇▇▇▇▇▇▇ FLP and ▇▇▇▇▇▇ FLP, respectively;
WHEREAS, ▇▇▇▇▇▇▇ FLP, ▇▇▇▇▇▇▇▇ FLP, ▇▇▇▇▇▇ FLP, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and
▇▇▇▇▇▇ are referred to herein collectively as the "Stockholders" and
individually as a "Stockholder;"
WHEREAS, as of the Effective Date (as defined below), each Stockholder
will be the legal and beneficial owner of the number of shares of Class A Common
Stock, par value $0.01 per share, of the Company ("Common Stock"), set forth
opposite his or its name on Annex I attached hereto and incorporated herein by
reference;
WHEREAS, each of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ is currently a director
of the Company;
WHEREAS, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. and ▇▇▇▇ ▇. ▇▇▇▇▇▇
are the sons and designated successors of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇,
respectively, for purposes of this Agreement and are referred to herein
collectively as the "Designated Successors" and individually as a "Designated
Successor;"
WHEREAS, the parties believe that it is in their mutual best interest
(i) that qualified persons serve the Company as members of its board of
directors (the "Board of Directors") to provide advice as to the Company's
management, policies, administration and development and (ii) to make provision
for the voting of the Common Stock and any other class of capital stock of the
Company entitled to vote (together with the Common Stock, "Voting Stock") held
by the Stockholders and certain other matters concerning the governance of the
Company; and
WHEREAS, the parties desire to set forth their understandings and
agreements in writing;
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
promises hereinafter set forth and of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. SCOPE AND TERM OF AGREEMENT.
1.1 Scope of Agreement. This Agreement shall govern (i) the
voting of all shares of Voting Stock of which any party to this Agreement is now
or hereafter becomes the legal or
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beneficial owner, including, without limitation, any shares of Voting Stock
acquired upon the exercise of any stock options issued by the Company, and (ii)
all action taken by any of the Stockholders with respect to any matter submitted
to a vote of the stockholders of the Company. For purposes of this Agreement,
the term "beneficial owner" shall have the meaning assigned to such term in Rule
13d-3 promulgated under the Securities Exchange Act of 1934, as amended. For
purposes of this Agreement, it is hereby understood and agreed that ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ are, and that (upon succeeding to the rights and obligations
of their respective fathers hereunder) the Designated Successors will be, the
beneficial owners of the shares of Common Stock now or hereafter owned by
▇▇▇▇▇▇▇ FLP, ▇▇▇▇▇▇▇▇ FLP and ▇▇▇▇▇▇ FLP (or the successors thereof),
respectively.
1.2 No Restrictions on Transfer of Stock. This Agreement shall
not restrict in any manner whatsoever the sale, transfer, pledge or other
disposition of the shares of Voting Stock owned by any Stockholder.
1.3 Effective Date; Term of Agreement. This Agreement shall
become effective only upon the date of consummation of the offering of 10 1/4%
Senior Notes due 2003 contemplated by that certain Offering Memorandum of the
Company dated November 22, 1996, as amended from time to time (the "Effective
Date"), and shall continue until terminated pursuant to Section 1.4 hereof.
1.4 Termination of Agreement. This Agreement shall terminate
upon the first to occur of (i) the death of the last of the Designated
Successors having any rights or obligations hereunder or (ii) the mutual written
agreement of all the parties hereto to terminate this Agreement; provided,
however, that the provisions of Sections 2.1 and 2.2 hereof shall terminate
sooner in the event that none of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ (or any designee
thereof) remains on the Board of Directors.
2. ELECTION OF DIRECTORS AND OTHER STOCKHOLDER MATTERS.
2.1 Election of Harbert, Weinberg, ▇▇▇▇▇▇ and Designated
Successors as Directors. Subject to Section 2.4 hereof, each Stockholder agrees
to take, or cause any persons or entities under his or its control to take, all
necessary or desirable actions within his, its or such person's or entity's
control (whether as a director, member of a committee of the Board of Directors
or officer of the Company and including, without limitation, voting all shares
of Voting Stock under his or its direction or control and, to the extent
permitted by the certificate of incorporation or by-laws of the Company, each as
then in effect, executing and delivering written consents of stockholders and
calling special stockholders' meetings) to elect to the Board of Directors, to
the extent that he desires to serve, (i) each of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇
(or such other person as ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇ or, in the event of the
death or resignation of any one of them, his Designated Successor, may designate
in his stead), and (ii) following the death or resignation of any of ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇, his Designated Successor.
2.2 Election of Other Directors. Each Stockholder agrees to
take, or cause any persons or entities under his or its control to take, all
necessary or desirable actions within his, its
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or such person's or entity's control (whether as a director, member of a
committee of the Board of Directors or officer of the Company and including,
without limitation, voting all shares of Voting Stock under his or its direction
or control and, to the extent permitted by the certificate of incorporation or
by-laws of the Company, each as then in effect, executing and delivering written
consents of stockholders and calling special stockholders' meetings) to elect to
the Board of Directors such directors (other than ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇
or any designees thereof, the election of which shall be governed by Section 2.1
hereof) as a majority of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ (or, in the event of the
death or resignation of any one of them, his Designated Successor) shall direct.
2.3 Other Stockholder Matters. Each Stockholder agrees to
take, or cause any persons or entities under his or its control to take, all
necessary or desirable actions within his, its or such person's or entity's
control (whether as a director, member of a committee of the Board of Directors
or officer of the Company and including, without limitation, voting all shares
of capital stock of the Company (to the extent entitled to vote) under his or
its direction or control and, to the extent permitted by the certificate of
incorporation or by-laws of the Company, each as then in effect, executing and
delivering written consents of stockholders and calling special stockholders'
meetings) with respect to such matters as are submitted to a vote of the
stockholders of the Company (other than the election of directors, which shall
be governed by Sections 2.1 and 2.2 hereof) as a majority of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
and ▇▇▇▇▇▇ (or, in the event of the death or resignation of any one of them, his
Designated Successor) shall direct.
2.4 Effect of Sale of Shares. In the event that any of
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ (or any Designated Successor who succeeds to the
rights and obligations of his father hereunder) ceases to be the beneficial
owner of fifty percent (50%) of the shares of Common Stock that he is currently
the beneficial owner of, then he (and his Designated Successor) shall cease to
have the right under Section 2.1 hereof to be elected (or have a designee
elected) to the Board of Directors; provided that, notwithstanding his (or his
Designated Successor's) ceasing to have such right under Section 2.1 hereof, he
(or his Designated Successor) shall continue to be obligated to take such
actions as are required of him under Sections 2.1, 2.2 and 2.3 hereof.
2.5 Agreement of the Company. The Company hereby agrees that
it shall not give effect to any vote cast or other action taken by any
Stockholder with respect to any matter submitted to a vote of the stockholders
of the Company, unless such vote or action is in accordance with the terms of
this Agreement.
3. REMEDIES.
3.1 Specific Performance. The parties hereto agree that the
failure of any party to observe the obligations provided by this Agreement will
result in irreparable damage to the non-defaulting party and that the
non-defaulting party may seek specific performance of such obligations in any
state or federal court having subject matter jurisdiction and located in
Cleveland, Ohio.
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3.2 Submission to Jurisdiction; Consent to Service of Process;
Venue. For the purpose of any action or proceeding instituted with respect to
this Agreement, each party other than the Company hereby irrevocably submits to
the jurisdiction of any state or federal court having subject matter
jurisdiction and located in Cleveland, Ohio. Each party other than the Company
also irrevocably consents to the service or process out of said courts by
mailing a copy thereof, by registered mail, postage prepaid, to such party at
his or its address set forth in Section 4.1 hereof or at such other address
furnished to the other parties hereto in the manner provided in Section 4.1
hereof, and each party hereby agrees that such service, to the fullest extent
permitted by law (i) shall be deemed in every respect effective service of
process upon him or it in any such suit, action or proceeding and (ii) shall be
taken and held to be valid personal service upon and personal delivery to him or
it. Each party other than the Company also hereby irrevocably waives, to the
fullest extent permitted by law, any objection which he or it may have or
hereafter have to the laying of the venue of any such suit, action or proceeding
brought in any such court located in Cleveland, Ohio and any claim that any such
suit, action or proceeding brought in such a court has been brought in an
inconvenient forum. Notwithstanding anything in this Agreement to the contrary,
the Company shall have the right to serve process in any manner permitted by law
and to bring an action or proceeding in respect hereof in any country, state,
county or place having jurisdiction over such action.
4. MISCELLANEOUS PROVISIONS.
4.1 Notices. All notices or other forms or communication
between or among any of the parties shall be given in writing and sent by
registered or certified U.S. mail, return receipt requested, first-class postage
prepaid, or personally delivered, to such party at the address set forth below
unless notice of a change of address is furnished to the other parties in the
manner provided in this Section:
If to any Stockholder: The address set forth next to his or
its name on Annex I hereto.
If to ▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇▇: c/▇ ▇▇▇▇ Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
If to Krantz: c/o Kohrman ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
If to the Company: Hawk Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
4.2 Amendment. No change in, modification of or amendment to
this Agreement shall be valid unless the same is in writing and signed by all
parties hereto.
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4.3 Waiver. No waiver of any provision of this Agreement shall
be valid unless in writing and signed by the person against whom it is sought to
be enforced. The failure of any party at any time to insist upon strict
performance of any condition, promise, agreement and understanding set forth
herein shall not be construed as a waiver or relinquishment of the right to
insist upon strict performance of the same condition, promise, agreement or
understanding at a future date.
4.4 Assignment. No party may assign any of his or its rights
or obligations under this Agreement without the written consent of all other
parties hereto.
4.5 Binding Effect. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective heirs,
beneficiaries, legatees, distributees, estates, executors, administrators,
personal representatives, successors and permitted assigns, as the case may be.
4.6 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware applicable to
contracts made and to be performed entirely within that State.
4.7 Severability. The invalidity or unenforceability of any
particular provision of this Agreement shall not affect the other provisions
hereof, and this Agreement shall be construed in all respects as if such invalid
or unenforceable provisions were omitted.
4.8 Integration. This Agreement sets forth all of the
promises, agreements, conditions and understandings among the parties hereto
with respect to the subject matter hereof, and supersedes and is intended to be
an integration of any and all prior agreements or understandings with respect
thereto.
4.9 Execution in Counterparts. This Agreement may be executed
by any one or more of the parties hereto in any number of counterparts, each of
which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first set forth above.
HAWK CORPORATION
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Its: Secretary
--------------------------------
/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, individually
▇▇▇▇▇▇▇ FAMILY LIMITED PARTNERSHIP
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
its Managing General Partner
/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, individually
▇▇▇▇▇▇▇▇ FAMILY LIMITED PARTNERSHIP
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
its Managing General Partner
/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, individually
▇▇▇▇▇▇ FAMILY LIMITED PARTNERSHIP
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
its Managing General Partner
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ANNEX I
TO STOCKHOLDERS' VOTING AGREEMENT
Name and Address of Stockholder Shares of Common Stock Owned
------------------------------- ----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.......................................................38,101
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ Family Limited Partnership.....................................342,905
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇......................................................37,089
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ Family Limited Partnership....................................333,800
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇..........................................................8,389
▇▇▇-▇▇ ▇▇▇▇▇▇▇▇ #▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Family Limited Partnership.......................................75,505
▇▇▇-▇▇ ▇▇▇▇▇▇▇▇ #▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇