CONFORMED COPY
EXHIBIT (10)(xxii)(c)
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AUCTION MARKET PREFERRED STOCK
VOTING AGREEMENT
Dated as of February 7, 2002
by and between
THE ▇▇▇▇▇▇▇ WORKS
and
BNP PARIBAS
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This AUCTION MARKET PREFERRED STOCK VOTING AGREEMENT (this
"AGREEMENT") is dated as of February 7, 2002 and is by and between THE ▇▇▇▇▇▇▇
WORKS, a Connecticut corporation and BNP PARIBAS, a societe anonyme organized
and existing under the laws of The Republic of France ("INVESTOR").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, The ▇▇▇▇▇▇▇ Works is the holder of all 155,652 shares
of the outstanding shares of Common Stock of ▇▇▇▇▇▇▇ Logistics, Inc., a Delaware
corporation (the "COMPANY");
WHEREAS, pursuant to an Auction Market Preferred Stock
Subscription Agreement (the "SUBSCRIPTION AGREEMENT"), dated as of February 4,
2002, between the Company and The ▇▇▇▇▇▇▇ Works, The ▇▇▇▇▇▇▇ Works agreed either
to subscribe for, or to procure the subscription by another person or persons
of, and the Company has agreed to issue, 11,445 shares of Auction Market
Preferred Stock, par value $0.01 per share (the "AMPS SHARES"), of the Company,
issued under the Certificate of Rights, Powers, Designations and Preferences,
and the Qualifications, Limitations or Restrictions Thereof, of the Auction
Market Preferred Stock of the Company (the "CERTIFICATE OF DESIGNATIONS") at a
subscription price per share equal to the Liquidation Preference (as defined
below) of such shares (the "ISSUE PRICE");
WHEREAS, pursuant to the Auction Market Preferred Stock
Procurement Agreement, dated as of February 7, 2002, between The ▇▇▇▇▇▇▇ Works
and Investor (the "PROCUREMENT AGREEMENT"), Investor agreed to subscribe for the
AMPS Shares and pay the Issue Price to the Company;
WHEREAS, pursuant to the Procurement Agreement, Investor
subscribed the AMPS Shares on the Closing Date;
WHEREAS, pursuant to the Auction Market Preferred Stock
Investment Agreement, dated as of February 7, 2002, between The ▇▇▇▇▇▇▇ Works
and the Company (the "INVESTMENT AGREEMENT"), The ▇▇▇▇▇▇▇ Works agreed to give
certain undertakings to the Company for the benefit of Investor in connection
with the AMPS Shares; and
WHEREAS, Investor has agreed to give certain undertakings to
The ▇▇▇▇▇▇▇ Works in connection with Investor's investment in the AMPS Shares;
NOW, THEREFORE, the parties, intending to be bound, hereby
agree as follows:
ARTICLE I
DEFINITIONS
Terms not otherwise defined herein shall have the meanings set
forth in Annex A to the Procurement Agreement (with terms defined in the
singular having comparable meanings when used in the plural and vice-versa),
unless the context otherwise requires.
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ARTICLE II
COVENANTS
Section 2.1 Voting of AMPS Shares. For a period commencing on the date
hereof and ending on February 7, 2008, Investor shall vote any AMPS Shares held
by the Investor for the election of Directors of the Company, and solely for
such decision, in the same manner as The ▇▇▇▇▇▇▇ Works votes its shares of the
Common Stock of the Company including, without limitation, by executing any
written consent of shareholders in lieu of meeting.
ARTICLE III
LEGAL OR REGULATORY CONTESTS
Section 3.1 (a) The parties agree to notify each other of, and to
cooperate in connection with, any audits or Legal or Regulatory contests
relating to the transactions contemplated by the Transaction Documents, and the
party seeking cooperation will reimburse the cooperating party for all out of
pocket costs incurred in connection with such cooperation.
(b)(i) If a United States Legal or Regulatory claim is asserted against
Investor, then Investor must within fifteen (15) days thereafter provide notice
of such claim to the Company. Within thirty (30) days following receipt of such
notice, The ▇▇▇▇▇▇▇ Works may assume control, at its expense and with counsel of
its choice, over any audit or Legal or Regulatory contest resulting therefrom
and may contest or settle such contest with the consent of the Investor, which
consent may not be unreasonably withheld. The ▇▇▇▇▇▇▇ Works agrees to keep
Investor informed regarding the conduct of any such contest with respect to
which The ▇▇▇▇▇▇▇ Works assumes control (including providing copies of all
documents) and to consult with Investor as reasonably requested regarding
prosecution of such contest.
(ii) If a United States Legal or Regulatory claim is asserted against
Investor and The ▇▇▇▇▇▇▇ Works elects not to assume control of such audit or
Legal or Regulatory contest, then Investor shall keep The ▇▇▇▇▇▇▇ Works informed
regarding the conduct of such contest (including providing The ▇▇▇▇▇▇▇ Works
with copies of all documents) and shall consult with The ▇▇▇▇▇▇▇ Works as
reasonably requested regarding the prosecution of such contest.
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ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 4.1 Assignment, etc. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns. Neither this Agreement nor
any of the rights granted herein, nor any of the other interests and obligations
created hereunder, shall be assigned or delegated by either of the parties
hereto without the prior express written consent of the other party; provided,
however, that this Agreement shall be assignable by Investor to a transferee of
AMPS Shares transferred by Investor in accordance with Section 5.1 of the
Procurement Agreement.
Section 4.2 Governing Law. This Agreement is governed by, and shall be
construed in accordance with, the laws of the State of New York without regard
to principles of conflicts of laws.
Section 4.3 Waiver of Jury Trial. EACH PARTY HERETO IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR BETWEEN
THE PARTIES HERETO ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH OR THEREWITH AND FOR ANY COUNTERCLAIM THEREIN.
EITHER PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT
WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
Section 4.4 Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute one and the same instrument.
Section 4.5 Notices. Any notice pursuant to the Transaction Documents
shall be in writing signed by or on behalf of the party giving it and may be
served by sending it by confirmed facsimile, personal delivery or overnight
courier to the address of the other parties set forth below (or to such other
address as the affected party shall have specified by not less than fifteen days
prior notice given in accordance with this Section). Notice shall be received
for purposes thereof:
(i) in the case of personal delivery or overnight courier, on the
day delivery at the address of the relevant party is confirmed by a
signed receipt of such notice, or if such day is not a Business Day, on
the first Business Day thereafter; and
(ii) in the case of a facsimile transmission, on the day a
confirmation of receipt is received or, if such day is not a Business
Day, on the first Business Day thereafter.
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To The ▇▇▇▇▇▇▇ Works:
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Address: The ▇▇▇▇▇▇▇ Works
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Corporate Counsel
To Investor:
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Address: BNP Paribas
▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
Fax: (33) (▇) ▇.▇▇.▇▇.▇▇.▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed on its behalf by its duly authorized officer as of the
date first above written.
THE ▇▇▇▇▇▇▇ WORKS
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President & Treasurer
BNP PARIBAS
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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