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EXHIBIT 4.3
AMENDED AND RESTATED
IRREVOCABLE PROXY AGREEMENT
THIS AMENDED AND RESTATED IRREVOCABLE PROXY AGREEMENT (the "Proxy
Agreement") is made as of October 31, 1995, by and between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, THE
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ TRUST (together with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, "Shareholders"),
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and AUTOMATIC DATA PROCESSING, INC., a Delaware corporation
("ADP").
RECITALS:
A. ADP, ADP Mergerco, Inc., a Michigan corporation and a
wholly-owned subsidiary of ADP ("Mergerco"), and ▇▇▇▇▇ Corporation, a Michigan
corporation (the "Company"), have entered into an Agreement and Plan of Merger,
dated as of August 22, 1995 (the "Merger Agreement"), which provides for the
merger of Mergerco with and into the Company (the "Merger").
B. Shareholders own of record 442,722 shares of Company common
stock, par value $.01 per share (the "Owned Shares").
C. Pursuant to the Merger Agreement, ADP has agreed to purchase
the Owned Shares from Shareholders in connection with the Merger at the
effective time of the Merger.
D. A portion of the Owned Shares (the "Restricted Shares") is
subject to certain restrictions contained in the Shareholder Agreement dated
November 4, 1985 by and among various shareholders of the Company, including
Shareholders (the "Shareholder Agreement"), and the remainder of the Owned
Shares is not subject to the provisions of the Shareholder Agreement (the
"Unrestricted Shares").
E. The Shareholder Agreement shall terminate on November 26, 1995
(the "Termination Date") and the Restricted Shares shall thereafter become free
and clear of any and all restrictions imposed thereon pursuant thereto.
F. On August 22, 1995, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ADP
entered into an Irrevocable Proxy Agreement (the "Original Irrevocable Proxy
Agreement") intended to grant to ADP an irrevocable proxy for the sole purpose
of directing the vote or written consent of the Owned Shares, which irrevocable
proxy was to become effective as to the Unrestricted Shares on and after the
date thereof and as to the Restricted Shares on and after the Termination Date,
upon the terms and subject to the conditions set forth therein.
G. The parties hereto wish to amend and restate the Original
Irrevocable Proxy Agreement to bind ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ to the terms and
provisions thereof not only in his individual capacity but also as trustee of
The ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Trust.
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NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, the parties hereto agree that the
Original Irrevocable Proxy Agreement is hereby amended and restated to read as
follows:
1. GRANT OF IRREVOCABLE PROXY.
(a) Upon the terms and subject to the conditions set forth
herein, to induce ADP and Mergerco to enter into and perform the Merger
Agreement, Shareholders hereby irrevocably make, constitute and appoint ADP to
act, effective as to the Unrestricted Shares as of and after August 22, 1995
and as to the Restricted Shares on and after the Termination Date, as true and
lawful proxy and attorney-in-fact in the name and on behalf of Shareholders
with full power to appoint a substitute or substitutes, and direct ADP, and ADP
hereby agrees, to vote the Owned Shares (and any and all securities issued or
issuable in respect thereof) at any meeting of the shareholders of the Company
(including adjournments thereof) or by written consent in the place and stead
of Shareholders in favor of adopting the Merger Agreement (and the related Plan
of Merger) and approving the Merger. By giving this irrevocable proxy,
Shareholders hereby revoke any other proxy heretofore granted by Shareholders
to vote any of the Unrestricted Shares (or such other securities issued or
issuable in respect thereof) on or after the date hereof and any of the
Restricted Shares (or such other securities issued or issuable in respect
thereof) on or after the Termination Date.
(b) All power and authority hereby conferred is coupled with
an interest and, except as otherwise provided in Section 5 hereof, is
irrevocable, shall not be terminated by any act of either Shareholder or by
operation of law, by death or incapacity of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ or any trustee or
beneficiary of The ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Trust, by lack of appropriate power or
authority, or by the occurrence of any other event or events and shall be
binding upon all beneficiaries, heirs at law, legatees, distributees,
successors, assigns and legal representatives of Shareholders. If after the
execution of this Proxy Agreement, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ or any trustee or
beneficiary of The ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Trust shall die or become incapacitated,
cease to have appropriate power or authority, or if any other such event or
events shall occur, ADP is nevertheless authorized and directed to vote the
Owned Shares in accordance with the terms of this Proxy Agreement as if such
death, incapacity, lack of appropriate power or authority or other event or
events had not occurred and regardless of notice thereof.
2. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER. Shareholders
hereby represent and warrant to ADP as follows:
(a) DUE AUTHORIZATION. Shareholders have full legal power
to enter into this Proxy Agreement and perform their obligations hereunder.
This Proxy Agreement has been duly executed and delivered by Shareholders.
(b) CONFLICTING INSTRUMENTS. The execution and delivery of
this Proxy Agreement by Shareholders does not, and the performance of this
Proxy Agreement by Shareholders will not, (i) require the consent, waiver,
approval or license authorization of
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or any filing with any person or public authority or (ii) with or without the
giving of notice or the lapse of time, or both, conflict with or result in a
breach of any terms or provisions of, or result in the creation or imposition of
any lien, claim, charge or encumbrance upon any of the Owned Shares under, any
agreement or other instrument to which either Shareholder is a party or by which
any of such Shareholder's property is bound (including, without limitation, the
Shareholder Agreement) or any existing applicable law, rule, regulation,
judgment, decree or order of any governmental instrumentality, court or
administrative body having jurisdiction over either Shareholder or any of such
Shareholder's property.
(c) OWNERSHIP. Except as provided in the Shareholder Agreement and
in this Proxy Agreement, (i) Shareholders are the record owners of the Owned
Shares with sole power to direct the voting and disposition of such shares, and
(ii) the Owned Shares are beneficially owned by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and/or the
beneficiary(ies) of The ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Trust, free and clear of all security
interests, liens, claims, encumbrances, charges, restrictions on transfer,
proxies and voting and other agreements.
3. ADJUSTMENTS. If the number of Owned Shares increases, decreases
or otherwise changes by reason of stock dividends, split-ups, recapitalizations,
combinations, conversions, exchanges of shares or the like, the number and kind
of Owned Shares subject to this Proxy Agreement shall be adjusted appropriately.
4. COVENANTS OF SHAREHOLDERS. Shareholders and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
each hereby covenants and agrees that such person shall not, without the prior
written consent of ADP, directly or indirectly:
(i) sell, assign, pledge, grant any option or proxy with
respect to, or otherwise transfer or dispose of any of, or enter into any
voting or other agreements with respect to, the Owned Shares, or deposit the
Owned Shares in a voting trust, or take or omit to take or permit any action
which would or might result in any of the foregoing or otherwise prevent or
disable Shareholders from performing their obligations hereunder; provided,
however, that Shareholders may sell, transfer or dispose of any of the Owned
Shares to a third party who agrees in writing to be bound by the terms and
conditions of this Proxy Agreement; or
(ii) vote the Unrestricted Shares on or after the date
hereof or the Restricted Shares on or after the Termination Date on any matter
referred to in Section 1(a) hereof.
5. EXPIRATION. The irrevocable proxy granted hereby shall become
effective as to the Unrestricted Shares as of August 22, 1995 and as to the
Restricted Shares on the Termination Date and shall expire at the earlier of
(i) the Effective Time (as defined in the Merger Agreement) and (ii) one
business day following the date of termination of the Merger Agreement in
accordance with the terms thereof.
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6. MISCELLANEOUS.
(a) SEVERABILITY. If any term, provision, covenant or
restriction of this Proxy Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Proxy Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
(b) ASSIGNMENT. This Proxy Agreement shall survive the
death or incapacity of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ or any trustee or beneficiary of the
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Trust and shall be binding upon and inure to the benefit of
the parties hereto and their respective successors, heirs, personal
representatives and assigns, but neither this Proxy Agreement nor any rights
hereunder shall be assigned by any party without the prior written consent of
the other parties hereto, except that ADP may assign its rights to a direct or
indirect subsidiary at least 50% owned by ADP (in which case all references to
ADP shall be deemed to mean such subsidiary).
(c) AMENDMENTS. This Proxy Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by all of the parties hereto.
(d) NOTICES. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly received if so given) by delivery in person
or by certified or registered mail (postage prepaid, return receipt requested)
to the respective parties as follows:
If to either Shareholder ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇/▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
or ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇: ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to: Jaffe, Raitt, Heuer & ▇▇▇▇▇
Professional Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇, Esq.
If to ADP: Automatic Data Processing, Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
or to such other address as any party may have furnished to the others in
writing in accordance herewith.
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(e) GOVERNING LAW. This Proxy Agreement shall be governed by
and construed in accordance with the laws of the State of Michigan.
(f) COUNTERPARTS. This Proxy Agreement may be executed in
several counterparts, each of which shall be an original, but all of
which together shall constitute one and the same agreement.
(g) EFFECT OF HEADINGS. The section headings herein are for
convenience only and shall not affect the construction hereof.
(h) SPECIFIC PERFORMANCE. Shareholders acknowledge that
performance of their obligations hereunder will confer a unique benefit
on ADP and, accordingly, that a failure of performance by either
Shareholder is not compensable by money damages.
IN WITNESS WHEREOF, the parties hereto have caused this Proxy Agreement
to be duly executed as of the day and year first above written.
AUTOMATIC DATA PROCESSING, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Its:
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
THE ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Its: Trustee
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FOR PURPOSES OF SECTION 4 ONLY
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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The ▇▇▇▇▇ Corporation hereby acknowledges the existence of this Proxy Agreement
and agrees to act in accordance herewith.
▇▇▇▇▇ CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Its: President
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