Prepared by ▇▇▇▇▇▇▇ CORPORATION ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
VOTING AGREEMENT AND IRREVOCABLE PROXY
In consideration of
Viking Merger Sub, Inc., a Minnesota corporation (“MergerSub”)
and ▇▇▇▇▇▇▇ Corporation, a Minnesota corporation (the “Company”),
entering into an Agreement and Plan of Merger dated as of the date hereof (the
“Merger Agreement”) which provides, among other things, that
MergerSub, upon the terms and subject to the conditions thereof, will be merged
with and into the Company (the “Merger”) and each outstanding
share of common stock, $0.01 par value, of the Company (the “Company
Common Stock”) will be converted into the right to receive the Common
Stock Consideration (as defined in the Merger Agreement) in accordance with
the terms of such Agreement, the undersigned holders (the “Stockholders”)
of shares of Company Common Stock, some of which are to be exchanged for an
equal number of shares of Class B Common Stock (as defined in the Merger Agreement)
as further described below (the “Exchange”), agree with MergerSub
as follows:
1. During
the period (the “Agreement Period”) beginning on the date hereof
and ending on the earlier of (i) the time which is immediately prior to the
Effective Time (as defined in the Merger Agreement) or (ii) the termination
of the Merger Agreement in accordance with its terms, the Stockholders hereby
agree not to sell, transfer, assign, encumber or otherwise dispose of any shares
of Company Common Stock set forth in Schedule A attached hereto, or upon the
Exchange, the shares of Class B Common Stock received in the Exchange, or, upon
the exercise of any of the Schedule A Options (as defined below), the shares
received as a result of such exercise (collectively, the “Schedule A
Shares”) or any of the options over shares of Company Common Stock
set forth in Schedule A (collectively, the “Schedule A Options”
and together with the Schedule A Shares, the “Schedule A Securities”)
or enter into any contract, option or other arrangement or understanding with
respect to the direct or indirect sale, assignment, transfer, encumbrance or
other disposition of any of the Schedule A Securities. Notwithstanding the foregoing,
any Stockholder may at any time during the five days prior to the Company Stockholder
Meeting (as defined in the Merger Agreement) transfer up to 10% of his Schedule
A Securities to any charitable organization. It is acknowledged that at or immediately
prior to the Effective Time the Schedule A Options will be treated in accordance
with the terms of Section 1.05 of the Merger Agreement and those Schedule A
Shares that are not exchanged for Class B Common Stock in accordance with Section
5.08 of the Merger Agreement will be treated in accordance with Section 1.02(f)
of the Merger Agreement.
2. During
the Agreement Period, the Stockholders hereby agree to vote the Schedule A Shares
to approve and adopt the Merger Agreement and the
Charter
Amendment, the Merger and all agreements related to the Merger and any actions
related thereto at any meeting or meetings of the stockholders of the Company,
and at any adjournment thereof or pursuant to action by written consent, at
or by which such Merger Agreement or Charter Amendment and other related agreements
(or any amended version or versions thereof), or such other actions, are submitted
for the consideration and vote of the stockholders of the Company.
3. During
the Agreement Period, the Stockholders hereby agree that they will not vote
any of the Schedule A Shares in favor of the approval of any other merger, consolidation,
sale of assets, reorganization, recapitalization, liquidation or winding up
of the Company or any other extraordinary transaction involving the Company
or any matters related to or in connection therewith, except for the Charter
Amendment, or any corporate action relating to or the consummation of which
would either frustrate the purposes of, or prevent or delay the consummation
of, the transactions contemplated by the Merger Agreement.
4. The
Stockholders hereby irrevocably appoint MergerSub, during the Agreement Period,
as proxy for and on behalf of the Stockholders to vote (including, without limitation,
the taking of action by written consent) the Schedule A Shares, for and in the
name, place and stead of the Stockholders for the matters and in the manner
contemplated by paragraph 2 above.
5. Subject
to and without prejudice to their fiduciary obligations as employees, officers
or directors of the Company, during the Agreement Period, the Stockholders will
not, directly or indirectly, (i) take any action to solicit, initiate or encourage
any Acquisition Proposal or (ii) engage in negotiations or discussions with,
or disclose any nonpublic information relating to the Company or any Subsidiary
or afford access to the properties, books or records of the Company or any Subsidiary
to, or otherwise assist, facilitate or encourage, any Third Party that may be
considering making, or has made, an Acquisition Proposal.
6. The
Stockholders agree not to exercise any rights (including, without limitation,
under Section 302A.471 of the Minnesota Law) to exercise dissenters’ rights
with respect to any Schedule A Shares owned by the Stockholders with respect
to the Merger.
7. Each
Stockholder hereby represents and warrants to MergerSub that as of the date
hereof:
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(a) such Stockholder (i)
owns beneficially all of the shares of Company Common Stock and options
therefor set forth in Schedule A
hereto,
(ii) has the full and unrestricted legal power, authority and right to enter
into, execute and deliver this Voting Agreement and Irrevocable Proxy without
the consent or approval of any other person and (iii) has not entered into
any voting agreement with or granted any person any proxy (revocable or
irrevocable) with respect to such shares (other than this Voting Agreement
and Irrevocable Proxy).
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(b) This Voting Agreement
and Irrevocable Proxy is the valid and binding agreement of such Stockholder.
If this Agreement is being executed in a representative or fiduciary capacity,
the person signing this Agreement has full power and authority to enter
into and perform such agreement.
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(c) No investment banker,
broker or finder is entitled to a commission or fee from such Stockholder
or the Company in respect of this Agreement based upon any arrangement or
agreement made by or on behalf of such Stockholder.
8.
Immediately
prior to the Effective Time, each Stockholder agrees to exchange that number
of shares of Company Common Stock referred to for such Stockholder in Appendix
A to the Merger Agreement for Class B Common Stock at a ratio of one share of
Class B Common Stock for each share of Company Common Stock so exchanged. The
Company hereby agrees to take all reasonable actions necessary to ensure that
the Charter Amendment is enacted and the Exchange is effected.
9. If
any provision of this Voting Agreement and Irrevocable Proxy shall be invalid
or unenforceable under applicable law, such provision shall be ineffective to
the extent of such invalidity or unenforceability only, without in any way affecting
the remaining provisions of this Voting Agreement and Irrevocable Proxy.
10. This
Voting Agreement and Irrevocable Proxy may be executed in two or more counterparts
each of which shall be an original with the same effect as if the signatures
hereto and thereto were upon the same instrument.
11. The
parties hereto agree that if for any reason any party hereto shall have failed
to perform its obligations under this Voting Agreement and Irrevocable Proxy,
then the party seeking to enforce this Agreement against such non-performing
party shall be entitled to specific performance and injunctive and other equitable
relief, and the parties hereto further agree to waive any requirement for the
securing or posting of any bond in connection with the obtaining of any such-injunctive
or other equitable relief. This provision is
without
prejudice to any other rights or remedies, whether at law or in equity, that
any party hereto may have against any other party hereto for any failure to
perform its obligations under this Voting Agreement and Irrevocable Proxy.
12. This
Voting Agreement and Irrevocable Proxy shall be governed by and construed in
accordance with the laws of the State of New York.
13. The
Stockholders will, upon request, execute and deliver any additional documents
deemed by MergerSub to be necessary or desirable to complete and effectuate
the Irrevocable Proxy granted herein.
14. This
Agreement shall terminate upon the termination of the Agreement Period.
IN WITNESS WHEREOF,
the parties hereto have executed this Voting Agreement as of this 14th day of
July, 1999.
SCHEDULE A
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VIKING MERGER SUB, INC. |
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By: |
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. |
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Title: President |
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▇▇▇▇▇▇▇ CORPORATION |
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By: |
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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Title: Vice President |
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/s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇,
individually |
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/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
individually |
Stockholder
| Shares of Company
Common Stock
| Options to Acquire
Company Common
Stock
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| ▇▇▇▇ ▇▇▇▇▇▇
| 1,907,716
| 76,300
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| ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
| 277,362
| 205,000
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