Exhibit 10.3
VOTING AGREEMENT
This VOTING AGREEMENT (this “
Agreement ”) is entered into as of September 29, 2006,
by and among ValueAct Capital Master Fund, L.P. (“
ValueAct ”), MLF Offshore Portfolio Company, L.P.
(“ MLF ”), Clayton, Dubilier & Rice Fund V
Limited Partnership (“ Fund V ”) and Clayton,
Dubilier & Rice Fund VI Limited Partnership (“ Fund
VI ” and, together with Fund V, the “
Stockholders ”).
WHEREAS, SIRVA, Inc., a Delaware
corporation (the “ Company ”), has entered into
a Securities Purchase Agreement (the “ Securities Purchase
Agreement ”) with ValueAct and MLF, dated as of September
25, 2006, pursuant to which, upon the terms and subject to the
conditions set forth therein, the Company will issue its 10.00%
Convertible Notes due 2011 (the “ Notes ”),
which are convertible into the Company’s 8.00% Convertible
Perpetual Preferred Stock (the “ Preferred Stock
”);
WHEREAS, the issuance (the “
Issuance ”) of the Preferred Stock upon conversion of
the Notes into such Preferred Stock is subject to approval by the
stockholders of the Company;
WHEREAS, the Stockholders
collectively beneficially own 24,188,335 shares of common stock,
par value $.01 per share, of the Company (the “ Common
Stock ,” and together with any shares of Common Stock
subsequently acquired, the “ Subject Stock
”);
WHEREAS, as a condition to the
willingness of ValueAct and MLF to enter into the Securities
Purchase Agreement, and as an inducement and in consideration
therefor, ValueAct and MLF have required that the Stockholders
agree, and the Stockholders have agreed, to enter into this
Agreement; and
WHEREAS, capitalized terms used but
not otherwise defined herein shall have the respective meanings
attributed to them in the Securities Purchase Agreement.
NOW, THEREFORE, in consideration of
the foregoing and the mutual premises, covenants and agreements
contained in this Agreement, the parties intending to be legally
bound, hereby agree as follows:
ARTICLE I
VOTING
Section
1.1
Agreement to Vote .
(a) Each Stockholder hereby agrees that, during the period
from and including the date of this Agreement through and including
the earliest to occur of (i) the conversion of the Notes into the
Preferred Stock, in accordance with the terms of the Notes, (ii)
the maturity of the Notes in accordance with their terms, and (iii)
the termination of this Agreement by mutual consent of the parties
hereto (the “ Voting Period ”), such Stockholder
shall vote or execute consents with respect to (or cause to be
voted or consents to be executed with respect to) all shares of
Subject Stock beneficially owned by such Stockholder as of the
applicable record date in favor of the approval of the Issuance at
any meeting (or any
1
adjournment or postponement thereof)
of the Company’s stockholders, or in any other circumstances
upon which a stockholder vote, consent or other approval (including
a written consent) with respect to the Issuance is
sought.
(b)
Any vote required to be cast or consent required to be executed
pursuant to this Section 1.1 shall be cast or executed in
accordance with the applicable procedures relating thereto so as to
ensure that it is duly counted for purposes of determining that a
quorum is present (if applicable) and for purposes of recording the
results of that vote or consent.
Section
1.2
Transfers. Each
Stockholder agrees that, during the Voting Period, such Stockholder
shall not sell, transfer, pledge, assign or otherwise dispose of
(including by gift) (collectively, “ Transfer
”), or enter into any contract, option or other arrangement
(including, without limitation, any profit sharing arrangement)
with respect to the Transfer of, any of its Subject Stock to any
Person, unless such Person agrees to be bound by the terms of this
Agreement with respect to such Subject Stock.
Section
1.3
Representations. Each Stockholder represents and warrants to
ValueAct and MLF that the Subject Stock owned by such Stockholder
represents all Common Stock owned beneficially and of record by
such Stockholder. Eac
