EX-99.2
17
mis_8k1130992.htm
RESTATED IRREVOCABLE PROXY
mis_8k1130992.htm
Exhibit
99.2
RESTATED
IRREVOCABLE PROXY
All
capitalized terms used but not
defined in this Irrevocable Proxy shall have the meanings set forth in that
certain Securities Purchase Agreement, of even date herewith (the
"
Purchase Agreement
"), by and among MISCOR Group, Ltd.
(the "
Company
"), Tontine Capital Partners, L.P.
("
Tontine
") and Tontine Capital Overseas Master Fund,
L.P. ("
TCOMF
" and together with Tontine, the
"
Purchasers
").
WHEREAS,
the Company and the Purchasers
entered into a Securities Purchase Agreement dated January 18, 2007 (the
"
Original Purchase Agreement
"), pursuant to which the
Company acquired 62,500,000 shares of Common Stock in the Company.
WHEREAS,
in connection with the
Original Purchase Agreement, John A. Martell, the President and Chief Executive
Officer of the Company ("
Martell
") granted to the
Purchasers an irrevocable proxy on January 18, 2007 (the "
Original
Proxy
").
WHEREAS,
in connection with and as a condition to the closing of the transactions
contemplated by the Purchase Agreement, Martell desires to restate the Original
Proxy.
FOR
VALUE RECEIVED,
Martell does hereby irrevocably appoint Tontine and TCOMF and each of them
(and
any manager or officer of Tontine or TCOMF and any other Person appointed by
Tontine or TCOMF), as the attorney-in-fact, agent, and proxy of Martell
(collectively, the "Proxy
Holders"),
with full power
of substitution, with full authority to act and vote in person or by revocable
proxy, written consent, or otherwise, as fully and effectively as Martell could
do so in person (or by proxy, written consent, or otherwise), with respect
to
any and all shares of Common Stock in the Company that Martell now or hereafter
owns legally, beneficially, or of record, or over which Martell has voting
control (the "Subject
Common Stock"),
in
such
manner as the Proxy Holders shall, in their sole discretion, deem proper, and
as
may be allowable under applicable law, with respect to the following
matters: (i)
the election
to the
Company's Board of Directors of one or two individuals nominated by the
Purchasers, as applicable, for such appointment pursuant to and in accordance
with
the Purchasers' rights under Section 5.6 of the Original Purchase
Agreement and Section 5.5 of the Purchase Agreement to appoint members to the
Company's Board of Directors, and (ii) solely for the purpose of enforcing the
Purchasers' rights under Section 5.8 of the Purchase Agreement and Section 5.9
of the Original Purchase Agreement, any matter coming before the stockholders
of
the Company that would have the effect of ensuring that future acquisitions
by
the Purchasers of up to 50% of the outstanding Common Stock on a fully diluted
basis will not be subject to the provisions of any anti-takeover or control
share laws and regulations of any governmental authority, including without
limitation, the applicable provisions of the IBCL, and any provisions of an
anti-takeover or control share nature adopted by the Company or any of its
Subsidiaries or contained in the Company's Amended and Restated Articles of
Incorporation, Amended and Restated Code of Bylaws or the organizational
documents of any of its Subsidiaries. In addition, Martell hereby
agrees, in his capacity as a director of the Company, to vote for the nomination
and appointment of the Purchasers' director representatives as set forth and as
provided in Section 5.6 of the Original Purchase Agreement and Section 5.5
of
the Purchase Agreement and to vote in such a manner as to enforce the
Purchaser's rights with respect to Section 5.9 of the Original Purchase
Agreement and Section 5.8 of the Purchase Agreement.
Martell
hereby represents and warrants
that, as of the date hereof: (1) Martell is the legal, beneficial, or record
holder of the Subject Common Stock; and (2) Martell has full right, power,
and
capacity to grant and transfer to the Proxy Holders the voting and other rights
represented hereby.
Martell
shall not
to grant to any Person any proxy or enter into any voting agreement
that
is inconsistent with the rights and privileges granted to the Proxy Holders
in
this Irrevocable Proxy.
This
Irrevocable Proxy is issued as a condition precedent to the execution and
delivery by the Purchasers of the Purchase Agreement and the consummation of
the
transactions contemplated thereby. Martell has obtained substantial
and material benefits as a result of the consummation of the transactions
contemplated by the Original Purchase Agreement and will obtain substantial
and
material benefits as a result of the consummation of the transactions
contemplated by the Purchase Agreement. This Irrevocable Proxy is a
material inducement to the Purchasers to execute and deliver the Purchase
Agreement and to consummate the transactions contemplated
thereby. This Irrevocable Proxy is coupled with an interest and is
irrevocable by Martell. This Irrevocable Proxy is effective as of the
date hereof and shall terminate automatically and be of no further force and
effect at such time as the Proxy Holders and their affiliates no longer have
any
rights under Sections 5.6 and 5.9 of the Original Purchase Agreement and
Sections 5.5 and 5.8 of the Purchase Agreement.
If
any
provision of this Irrevocable Proxy is adjudicated to be invalid or
unenforceable, then such provision shall be deemed deleted and the remainder
of
this Irrevocable Proxy, nevertheless, shall remain unaffected and fully
enforceable. Further, to the extent any provision herein is deemed
unenforceable by virtue of its scope, but may be made enforceable by limitation
thereof, the parties hereto agree the same shall, nevertheless, be enforceable
to the full extent permissible. This Irrevocable Proxy shall be
binding upon the heirs, personal representatives, executors, and assigns of
Martell.
This
Irrevocable Proxy shall be
enforced, governed by and construed in accordance with the laws of the State
of
Indiana without regard to principles of conflicts of laws.
Dated: November
30, 2007
By:
/s/
John
A. Martell
John
A. Martell
The
undersigned, being the Proxy Holders, do hereby consent to the restatement
of
the Original Proxy and the granting of this Irrevocable Proxy in place
thereof.
TONTINE
CAPITAL PARTNERS, L.P.
TONTINE
CAPITAL OVERSEAS MASTER FUND, L.P.
By:
/s/
Jeffrey L. Gendell
By:
/s/
Jeffrey L. Gendell
Its:
Managing
Member
Its:
Managing
Member

EX - 99 . 2 17 mis _ 8k1130992 . htm RESTATED IRREVOCABLE PROXY mis _ 8k1130992 . htm Exhibit 99 . 2 RESTATED IRREVOCABLE PROXY All capitalized terms used but not defined in this Irrevocable Proxy shall have the meanings set forth in that certain Securities Purchase Agreement , of even date herewith ( the " Purchase Agreement " ) , by and among MISCOR Group , Ltd . ( the " Company " ) , Tontine Capital Partners , L . P . ( " Tontine " ) and Tontine Capital Overseas Master Fund , L . P . ( " TCOMF " and together with Tontine , the " Purchasers " ) . WHEREAS , the Company and the Purchasers entered into a Securities Purchase Agreement dated January 18 , 2007 ( the " Original Purchase Agreement " ) , pursuant to which the Company acquired 62,500,000 shares of Common Stock in the Company . WHEREAS , in connection with the Original Purchase Agreement , John A . Martell , the President and Chief Executive Officer of the Company ( " Martell " ) granted to the Purchasers an irrevocable proxy on January 18 , 2007 ( the " Original Proxy " ) . WHEREAS , in connection with and as a condition to the closing of the transactions contemplated by the Purchase Agreement , Martell desires to restate the Original Proxy . FOR VALUE RECEIVED , Martell does hereby irrevocably appoint Tontine and TCOMF and each of them ( and any manager or officer of Tontine or TCOMF and any other Person appointed by Tontine or TCOMF ) , as the attorney - in - fact , agent , and proxy of Martell ( collectively , the " Proxy Holders " ) , with full power of substitution , with full authority to act and vote in person or by revocable proxy , written consent , or otherwise , as fully and effectively as Martell could do so in person ( or by proxy , written consent , or otherwise ) , with respect to any and all shares of Common Stock in the Company that Martell now or hereafter owns legally , beneficially , or of record , or over which Martell has voting control ( the " Subject Common Stock " ) , in such manner as the Proxy Holders shall , in their sole discretion , deem proper , and as may be allowable under applicable law , with respect to the following matters : ( i ) the election to the Company 's Board of Directors of one or two individuals nominated by the Purchasers , as applicable , for such appointment pursuant to and in accordance with the Purchasers ' rights under Section 5 . 6 of the Original Purchase Agreement and Section 5 . 5 of the Purchase Agreement to appoint members to the Company 's Board of Directors , and ( ii ) solely for the purpose of enforcing the Purchasers ' rights under Section 5 . 8 of the Purchase Agreement and Section 5 . 9 of the Original Purchase Agreement , any matter coming before the stockholders of the Company that would have the effect of ensuring that future acquisitions by the Purchasers of up to 50 % of the outstanding Common Stock on a fully diluted basis will not be subject to the provisions of any anti - takeover or control share laws and regulations of any governmental authority , including without limitation , the applicable provisions of the IBCL , and any provisions of an anti - takeover or control share nature adopted by the Company or any of its Subsidiaries or contained in the Company 's Amended and Restated Articles of Incorporation , Amended and Restated Code of Bylaws or the organizational documents of any of its Subsidiaries . In addition , Martell hereby agrees , in his capacity as a director of the Company , to vote for the nomination and appointment of the Purchasers ' director representatives as set forth and as provided in Section 5 . 6 of the Original Purchase Agreement and Section 5 . 5 of the Purchase Agreement and to vote in such a manner as to enforce the Purchaser 's rights with respect to Section 5 . 9 of the Original Purchase Agreement and Section 5 . 8 of the Purchase Agreement . Martell hereby represents and warrants that , as of the date hereof : ( 1 ) Martell is the legal , beneficial , or record holder of the Subject Common Stock ; and ( 2 ) Martell has full right , power , and capacity to grant and transfer to the Proxy Holders the voting and other rights represented hereby . Martell shall not to grant to any Person any proxy or enter into any voting agreement that is inconsistent with the rights and privileges granted to the Proxy Holders in this Irrevocable Proxy . This Irrevocable Proxy is issued as a condition precedent to the execution and delivery by the Purchasers of the Purchase Agreement and the consummation of the transactions contemplated thereby . Martell has obtained substantial and material benefits as a result of the consummation of the transactions contemplated by the Original Purchase Agreement and will obtain substantial and material benefits as a result of the consummation of the transactions contemplated by the Purchase Agreement . This Irrevocable Proxy is a material inducement to the Purchasers to execute and deliver the Purchase Agreement and to consummate the transactions contemplated thereby . This Irrevocable Proxy is coupled with an interest and is irrevocable by Martell . This Irrevocable Proxy is effective as of the date hereof and shall terminate automatically and be of no further force and effect at such time as the Proxy Holders and their affiliates no longer have any rights under Sections 5 . 6 and 5 . 9 of the Original Purchase Agreement and Sections 5 . 5 and 5 . 8 of the Purchase Agreement . If any provision of this Irrevocable Proxy is adjudicated to be invalid or unenforceable , then such provision shall be deemed deleted and the remainder of this Irrevocable Proxy , nevertheless , shall remain unaffected and fully enforceable . Further , to the extent any provision herein is deemed unenforceable by virtue of its scope , but may be made enforceable by limitation thereof , the parties hereto agree the same shall , nevertheless , be enforceable to the full extent permissible . This Irrevocable Proxy shall be binding upon the heirs , personal representatives , executors , and assigns of Martell . This Irrevocable Proxy shall be enforced , governed by and construed in accordance with the laws of the State of Indiana without regard to principles of conflicts of laws . Dated : November 30 , 2007 By : / s / John A . Martell John A . Martell The undersigned , being the Proxy Holders , do hereby consent to the restatement of the Original Proxy and the granting of this Irrevocable Proxy in place thereof . TONTINE CAPITAL PARTNERS , L . P . TONTINE CAPITAL OVERSEAS MASTER FUND , L . P . By : / s / Jeffrey L . Gendell By : / s / Jeffrey L . Gendell Its : Managing Member Its : Managing Member