1
EXHIBIT 3
VOTING AGREEMENT
This VOTING AGREEMENT ("Agreement"), dated as of February 21, 2001 by
and among RFI Acquisition, Inc., a Delaware corporation ("Merger Sub") and
Xxxxxx Xxxxxxxxxx ("Stockholder").
RECITALS
Merger Sub, Xxxxx Foods Incorporated, a Delaware corporation (the
"Company") and FLP Holdings III LLC ("Parent") propose to enter into an
Agreement and Plan of Merger (as the same may be amended supplemented, modified
or extended from time to time, the "Merger Agreement") providing for the merger
of Merger Sub and the Company upon the terms and subject to the conditions set
forth in the Merger Agreement. Capitalized terms used but not defined herein
shall have the meanings set forth in the Merger Agreement.
Stockholder is the record and beneficial owner of an aggregate of One
Hundred and Ten Thousand Three Hundred Forty-Five (110,345) shares (the
"Existing Shares") of the Company's $0.04 par value common stock (the "Company
Common Stock") (and, together with any shares of Company Common Stock acquired
by Stockholder after the date hereof, whether upon the exercise of warrants,
options or rights, the conversion or exchange of any Existing Shares or
convertible or exchangeable securities or by means of purchase, dividend,
distribution or otherwise, the "Subject Shares").
As an inducement and a condition to entering into the Merger Agreement,
Merger Sub has required that Stockholder agree, and Stockholder has agreed, to
enter into this Agreement.
Stockholder and Merger Sub desire to set forth their agreement with
respect to the voting of the Subject Shares in connection with the Merger
Agreement, the Merger and the other transactions contemplated hereby and thereby
(collectively, the "Transactions") upon the terms and subject to the conditions
set forth herein.
AGREEMENT
To implement the foregoing and in consideration of the mutual
agreements contained herein and for other good consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Covenants of Stockholder. Until the termination of this Agreement in
accordance with Section 6, Stockholder covenants and agrees with Merger Sub as
follows:
(a) Agreement to Vote. At any meeting of stockholders of the
Company called for the approval of the Transactions or any Third Party
Transaction, however called, or at any adjournment or postponement thereof, or
in connection with any written consent of the holders of shares of Company
Common Stock, or in any other circumstances in which Stockholder is entitled to
vote, consent or give any other approval with respect to the Transactions or any
Third Party Transaction, Stockholder shall vote (or cause to be voted) the
Subject Shares at the sole discretion and direction of Merger Sub with respect
to adoption and approval of the Transactions or any Third Party Transaction and
the approval of the terms thereof and each of the other actions contemplated by
this Agreement, the Transactions or any Third Party Transaction and any
amendments hereto or thereto.
At any meeting of stockholders of the Company, however called, or at
any adjournment thereof, or in connection with any written consent of the
holders of shares of Company Common Stock or in any other circumstances in which
Stockholder is entitled to vote, consent or give any other approval, Stockholder
shall vote (or cause to be voted) the Subject Shares against the following
actions:
(i) any action or agreement that would result in a breach of
any covenant, representation or warranty or any other obligation or
agreement of the Company under the Merger Agreement or of Stockholder
hereunder; or
(ii) any action or agreement that could reasonably be expected
to impede, interfere with, prevent, materially delay, nullify,
materially postpone or attempt to discourage the Merger and/or the
other Transactions, including, but not limited to: (A) the adoption by
the Company of a proposal regarding (1) the acquisition of the Company
by merger, tender offer or otherwise by any person other than Merger
Sub or any designee thereof (a "Third Party"), or any other merger,
combination or similar transaction with any Third Party; (2) the
acquisition by a Third Party of 5% or more of the assets of the Company
and its subsidiaries, taken as a whole (whether by the acquisition of
assets or securities of, or any merger, consolidation or other business
combination involving, the Company or any of its subsidiaries); (3) the
acquisition by a Third Party of 5% or more of the outstanding shares of
Company Common Stock, or (4) the repurchase by the Company and/or any
of its subsidiaries of 5% or more of the outstanding shares of Company
Common Stock; (B) any amendment of the Company's Certificate of
Incorporation or By-laws or other proposal or transaction involving the
Company or any of its subsidiaries, which amendment or other proposal
or transaction could in any manner reasonably be expected to impede,
interfere with, prevent, materially delay, nullify, materially postpone
or attempt to discourage the Merger and/or the other Transactions, or
change in any manner the rights and privileges, including, without
limitation, voting rights of any class of the Company's capital stock;
(C) any change in the management or board of directors of the Company
that could in any manner reasonably be expected to impede, interfere
with, prevent, materially delay, nullify, materially postpone or
attempt to discourage the Merger and/or the Transactions; (D) any
material change in the present capitalization (other than pursuant to
the Contribution Agreement) or dividend policy of the Company; or (E)
any other material change in the Company's corporate structure or
business.
1
2
Stockholder, in his, her or its capacity as a stockholder of the
Company, further agree not to commit or agree to take any action
inconsistent with the foregoing agreements.
The Stockholder agrees to be present (in person or by proxy) or to cause the
holder of record on the applicable record date (the "Record Holder") to be
present (in person or by proxy) at all meetings of stockholders of the Company
called to vote on any matter contemplated by this Agreement so that all of the
shares of Company Common Stock then owned of record or beneficially by the
Stockholder will be counted for the purpose of determining the presence of a
quorum at such meetings, and to vote or cause the Record Holder to vote all such
shares in the manner required by this Agreement.
(b) PROXIES. AS SECURITY FOR THE AGREEMENTS OF THE STOCKHOLDER
PROVIDED FOR HEREIN, THE STOCKHOLDER HEREBY GRANTS TO MERGER SUB AN IRREVOCABLE
PROXY TO VOTE THE SUBJECT SHARES AS INDICATED IN SECTION 1(a) ABOVE. THE
STOCKHOLDER AGREES THAT THIS PROXY SHALL BE IRREVOCABLE DURING THE TERM OF THIS
AGREEMENT AND COUPLED WITH AN INTEREST AND EACH OF THE STOCKHOLDER AND MERGER
SUB WILL TAKE SUCH FURTHER ACTION OR EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE
NECESSARY TO EFFECTUATE THE INTENT OF THIS PROXY. THE STOCKHOLDER HEREBY REVOKES
ANY PROXY PREVIOUSLY GRANTED BY THE STOCKHOLDER WITH RESPECT TO THE SUBJECT
SHARES.
(c) Transfer Restrictions. Stockholder agrees not to (i) sell,
transfer, tender pursuant to a tender offer, pledge, encumber, assign or
otherwise dispose of or hypothecate (including by gift or by contribution or
distribution to any trust or similar instrument or to any beneficiaries of
Stockholder) (collectively, "Transfer"), or enter into any contract, option or
other arrangement or understanding (including any profit sharing arrangement)
with respect to the Transfer of any of the Subject Shares other than pursuant to
the terms hereof, (ii) enter into any voting arrangement or understanding with
respect to the Subject Shares, whether by proxy, voting agreement or otherwise,
or (iii) take any action that could reasonably be expected to make Stockholder's
representations or warranties contained herein untrue or incorrect or could
reasonably be expected to have the effect of preventing or disabling Stockholder
from performing any of his, her or its obligations hereunder. Notwithstanding
anything contained herein to the contrary, the restrictions contained in this
Section 1(c) shall not apply with respect to any Transfer of Subject Shares by
Stockholder pursuant to applicable laws of descent and distribution; provided,
that such proposed transferee must agree to take such Subject Shares subject to
and to be fully bound by the terms of this Agreement applicable to such Subject
Shares by executing a joinder to this Agreement substantially in the form
attached hereto as EXHIBIT A and delivering such executed joinder to the
Secretary of Merger Sub as soon as reasonably possible after such Transfer.
(d) Stop Transfer. Stockholder hereby authorizes and requests
the Company and its counsel to notify the Company's transfer agent that there is
a stop transfer order with respect to all of the Subject Shares (and that this
Agreement places limits on the voting of the Subject Shares). Stockholder agrees
with, and covenants to, Merger Sub that Stockholder shall not request that the
Company register the Transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Subject Shares, unless such
Transfer is made in compliance with this Agreement and the Merger Agreement. In
the event of a stock dividend or distribution, or any change in the shares of
Company Common Stock by reason of any stock dividend or distribution, or any
change in the shares of Company Common Stock by reason of any stock dividend,
split-up, recapitalization, combination, exchange of shares or the like, the
term "Subject Shares" shall be deemed to refer to and include the Subject Shares
as well as all such stock dividends and distributions and any shares into which
or for which any or all of the Subject Shares may be changed or exchanged.
Stockholder shall be entitled to receive and retain any cash dividend paid by
the Company during the term of this Agreement until the Subject Shares are
canceled in the Merger.
(e) Appraisal Rights. THE STOCKHOLDER HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHTS WHICH STOCKHOLDER MAY HAVE AS TO APPRAISAL, DISSENT OR
ANY SIMILAR OR RELATED MATTER WITH RESPECT TO THE MERGER OR THE OTHER
TRANSACTIONS.
2. Representations and Warranties of Stockholder. Stockholder hereby
represents and warrants to Merger Sub as of the date hereof as follows:
(a) Organization; Authority; Enforceability. If Stockholder is
a corporation, partnership, limited liability company or other entity, (i)
Stockholder is a corporation, partnership or limited liability company duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization or incorporation, and (ii) the execution,
delivery and performance by Stockholder of this Agreement and the consummation
by Stockholder of the transactions contemplated hereby have been duly and
validly authorized by its board of directors, members or partners (as the case
may be) and no other action or proceedings on the part of Stockholder is
necessary to authorize the execution and delivery by Stockholder of this
Agreement and the consummation by Stockholder of the transactions contemplated
hereby. Stockholder has all necessary power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated hereby. This
Agreement constitutes a valid and binding obligation of Stockholder, enforceable
in accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, and general equitable
principles (whether considered in a proceeding in equity or at law).
(b) No Conflict. The execution and delivery of this Agreement
by Stockholder does not, and the consummation by Stockholder of the transactions
contemplated hereby will not, (i) violate any Law applicable to Stockholder
(and, if Stockholder is a corporation, partnership, limited liability company or
other entity, conflict with or violate the organizational documents of
Stockholder), (ii) prevent or materially delay the consummation of the Merger or
the other Transactions, or (iii) result in a violation or any breach of or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which Stockholder is
2
3
a party, except for any such breaches or defaults which would not materially
impair the ability of Stockholder to consummate the transactions contemplated
hereby.
(c) Required Filings and Consents. The execution and delivery
of this Agreement by Stockholder does not, and the consummation by Stockholder
of the transactions contemplated hereby will not, require any consent, approval,
authorization or permit of, or filing with or notification to, any government or
subdivision thereof, or any administrative, governmental or regulatory
authority, agency, commission, tribunal or body, domestic, foreign or
supranational, except for applicable requirements, if any, of the 1933 Act, the
1934 Act, Blue Sky Laws, the rules of any applicable exchange, state takeover
laws, the pre-merger notification requirements of the HSR Act, and filings and
recordation of appropriate merger documents as required by the Delaware General
Corporation Law or any other applicable law or regulation.
(d) Shares. The Existing Shares of Stockholder are, and the
Subject Shares of Stockholder as of the Effective Time will be, owned
beneficially and of record by Stockholder. The Existing Shares and all warrants,
options or other rights to acquire any shares of Company Common Stock (including
the applicable exercise price) owned, of record or beneficially, by Stockholder
are described on Schedule 2(c) attached hereto. The Existing Shares of
Stockholder constitute all of the shares of Company Common Stock owned of record
or beneficially by Stockholder as of the date hereof. All of the Existing Shares
of Stockholder are issued and outstanding and except as set forth on Schedule
2(c) attached hereto, Stockholder does not own, of record or beneficially, any
warrants, options or other rights to acquire any shares of Company Common Stock.
Stockholder has with respect to the Existing Shares, and will have at the
Effective Time with respect to the Subject Shares, sole voting power, sole power
of disposition, sole power to issue instructions with respect to the matters set
forth in Section 1 hereof, sole power to demand appraisal rights (to the extent
such rights are available) and sole power to agree to all of the matters set
forth in this Agreement, in each case with no limitations, qualifications or
restrictions on such rights, subject only to applicable federal securities laws
and the terms of this Agreement. Stockholder has good and valid title to the
Existing Shares of Stockholder and at all times during the term hereof and on
the Effective Time will have good and valid title to the Subject Shares of
Stockholder, in each case, free and clear of all Liens.
(e) No Finder's Fees. No broker, investment banker, financial
advisor or other person is entitled to any broker's, finder's, financial
advisor's or other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of Stockholder.
3. Representations and Warranties of Merger Sub. Merger Sub hereby
represents and warrants to Stockholder as of the date hereof as follows:
(a) Organization. Merger Sub is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation.
(b) Authorization; Enforceability. Merger Sub has full
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution, delivery and
performance by Merger Sub of this Agreement and the consummation by Merger Sub
of the transactions contemplated hereby have been duly and validly authorized by
its Board of Directors and no other corporate action or proceedings on the part
of Merger Sub is necessary to authorize the execution and delivery by Merger Sub
of this Agreement and the consummation by Merger Sub of the transactions
contemplated hereby. This Agreement constitutes a valid and binding obligation
of Merger Sub, enforceable in accordance with its terms, subject to the effects
of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, and
general equitable principles (whether considered in a proceeding in equity or at
law).
(c) No Conflict. The execution and delivery of this Agreement
by Merger Sub does not, and the consummation by Merger Sub of the transactions
contemplated hereby will not (i) conflict with or violate the charter documents,
By-laws or other organizational documents of Merger Sub, (ii) conflict with or
violate any Law applicable to Merger Sub, or (iii) result in a violation or any
breach of or constitute a default (or an event which with notice or lapse of
time or both would become a default) under any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which Merger Sub is a party or by which Merger Sub or any property
or asset of Merger Sub is bound or affected, except for any such breaches or
defaults which would not materially impair the ability of Merger Sub to
consummate the transactions contemplated hereby.
(d) Required Filings and Consents. The execution and delivery
of this Agreement by Merger Sub does not, and the consummation by Merger Sub of
the transactions contemplated hereby will not, require any consent, approval,
authorization or permit of, or filing with or notification to, any government or
subdivision thereof, or any administration, governmental or regulatory
authority, agency, commission, tribunal or body, domestic, foreign or
supranational, except (i) for applicable requirements, if any, of the 1933 Act,
the 1934 Act, Blue Sky Laws, the rules of any applicable stock exchange, state
takeover laws, the pre-merger notification requirements of the HSR Act, and
filing and recordation of appropriate merger documents as required by the
Delaware General Corporation Law or any other applicable state law, and (ii)
where the failure to obtain such other consents, approvals, authorizations, or
permits, or to make such filings or notifications would not materially impair
the ability of Merger Sub to consummate the transactions contemplated hereby.
4. Further Assurances. From time to time prior to the Effective Time,
at any other party's request and without further consideration, each party
hereto shall execute and deliver such additional documents and take all such
further lawful action as may be necessary or desirable to consummate and make
effective, in the most expeditious manner practicable, the transactions
contemplated by this Agreement and the Merger Agreement.
3
4
5. Additional Covenants of Stockholder.
(a) Filings. Stockholder shall furnish to Merger Sub all
information required for any application or other filing to be made pursuant to
the rules and regulations of any applicable Law (including, without limitation,
all information required to be included in the Proxy Statement and a Schedule
13D filing) in connection with the transactions contemplated by the Merger
Agreement.
(b) Confidentiality. Stockholder shall, and shall use his, her
or its reasonable best efforts to cause Stockholder's officers, directors,
employees, accountants, consultants, legal counsel, agents and other
representatives, as applicable, to, keep confidential and not disclose to any
other person or use for its own benefit or the benefit of any other person, any
trade secrets or other confidential proprietary information in its or their
possession or control regarding Merger Sub, Parent, or any of their respective
affiliates. The obligation of Stockholder under this Section 5(b) shall not
apply to information which (i) is or becomes generally available to the public
without breach of the commitment provided for in this Section 5(b); or (ii) is
required to be disclosed by law, order or regulation of a court or tribunal or
Governmental Authority; provided, however, that, in any such case, Stockholder
shall notify Merger Sub as early as reasonably practicable prior to disclosure
to allow Merger Sub to take appropriate measures to preserve the confidentiality
of such information.
(c) Public Announcements. Stockholder shall consult with
Merger Sub before issuing (and give Merger Sub a reasonable opportunity to
comment on) any press release or otherwise making any public statements with
respect to this Agreement, the Merger Agreement or any of the other
Transactions. Prior to the Closing, Stockholder shall not issue any such press
release or make any such public statement without the prior consent of Merger
Sub, except as may be required by Law and, in such case, shall use reasonable
efforts to consult with Merger Sub prior to such release or statement being
issued.
(d) Option to Purchase Subject Shares. Stockholder hereby
grants to Merger Sub an irrevocable option (the "Option") to purchase all of the
Subject Shares at a price per share equal to the Merger Consideration (subject
to adjustment as set forth in the Merger Agreement, the "Exercise Price"). The
Option shall be exercisable by written notice to Stockholder, accompanied by
payment in cash or certified check of the Exercise Price at any time prior to
the termination of this Agreement. Once exercised, Stockholder shall promptly
deliver the Subject Shares to Merger Sub, duly endorsed for transfer and
accompanied by stock powers executed in blank.
6. Termination. This Agreement (other than Sections 4, 5(b), 5(c) and 7
hereof, which shall survive the termination of this Agreement) shall terminate,
and no party shall have any rights or obligations hereunder and this Agreement
shall become null and void and have no further effect upon the earliest to occur
of (a) the Effective Time, (b) termination of the Merger Agreement pursuant to
Section 8.01(a), (c), (d), (e) or (i) thereof, or (c) 180 days following the
termination of the Merger Agreement pursuant to any other provision contained in
Section 8.01 thereof. Nothing in this Section 6 shall relieve any party of
liability for breach of this Agreement.
7. Fees and Expenses. Except as otherwise provided in this Section 7,
all costs and expenses incurred in connection with this Agreement and the
consummation of the transactions contemplated hereby shall be borne solely and
entirely by the party incurring such expenses.
8. General Provisions.
(a) Amendment. This Agreement may not be amended except by an
instrument in writing signed by the party to be charged therewith.
(b) Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally,
telecopied (which is confirmed) or sent by overnight courier (providing proof of
delivery) to the parties at the following addresses (or at such other addresses
for a party as shall be specified by like notice):
(i) if to Merger Sub:
Xxxxxx X. Xxxxxxxxx, President
RFI Acquisition, Inc.
0000 X. 00xx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxx 00000
with a copy (which shall not constitute notice) to:
Xxxxxxxxx X. Xxxxxx
Xxxxxxx Xxxx & Freidrich LLP
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
(ii) if to Stockholder, to:
with a copy (which shall not constitute notice) to:
(c) Interpretation. Whenever the words "include," "includes"
or "including" are used in this Agreement they shall be deemed to be followed by
the words "without limitation." The phrases "the date of this Agreement," "the
date hereof," and terms of similar import, unless the context otherwise
requires, shall be deemed to refer to February 21, 2001.
4
5
(d) Counterparts. This Agreement may be executed in two or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other parties, it being understood that
all parties need not sign the same counterpart.
(e) Entire Agreement; No Third Party Beneficiaries. This
Agreement constitutes the entire agreement and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to the
subject matter hereof, and is not intended to confer upon any person other than
the parties hereto any rights or remedies hereunder.
(f) Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in a mutually acceptable
manner in order that the transactions contemplated hereby may be consummated as
originally contemplated to the fullest extent possible.
(g) Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties, except that Merger Sub may assign, in Merger Sub's
sole discretion, any or all of its respective rights, interests and obligations
hereunder to any affiliate of Merger Sub (including Parent). Subject to the
preceding sentence, this Agreement will be binding upon, inure to the benefit of
and be enforceable by the parties and their respective successors, heirs,
agents, representatives, trust beneficiaries, attorneys, affiliates and
associates and all of their respective predecessors, successors, permitted
assigns, heirs, executors and administrators.
(h) Enforcement; Governing Law; Waiver of Jury Trial.
(i) The parties hereto agree that irreparable damage
would occur in the event any provision of this Agreement was not
performed in accordance with the terms hereof and that the parties
shall be entitled to an injunction or injunctions to prevent breaches
of this Agreement and to specific performance of the terms hereof, in
addition to any other remedy at law or in equity.
(ii) The provisions of this Agreement shall be
governed by and construed in accordance with the laws of the State of
Delaware (excluding any conflict of law rule or principle that would
refer to the laws of another jurisdiction). EACH PARTY HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY
LEGALLY AND EFFECTIVELY DO SO, TRIAL BY JURY IN ANY SUIT, ACTION OR
PROCEEDING ARISING HEREUNDER.
5
6
IN WITNESS WHEREOF, Merger Sub and Stockholder have caused this
Agreement to be executed as of the date first written above.
STOCKHOLDER
/s/ Xxxxxx Xxxxxxxxxx
----------------------------------------------
Xxxxxx Xxxxxxxxxx
MERGER SUB
RFI Acquisition, Inc.
/s/ Xxxxxx X. Xxxxxxxxx
----------------------------------------------
By: Xxxxxx X. Xxxxxxxxx
-------------------------------------
Its: President
-------------------------------------
6
7
SCHEDULE 2(c)
Existing Shares Options/Warrants
Owned by Owned by Exercise Price of
Stockholder Stockholder Options/Warrants
----------- ----------- ----------------
110,345 0 N/A
7
8
EXHIBIT A
FORM OF JOINDER TO
VOTING AGREEMENT
THIS JOINDER TO VOTING AGREEMENT ("Joinder"), dated as of
February , 2001 (the "Agreement") by and among [NEWCO], a Delaware
corporation ("Merger Sub") and ("Stockholder"), is made
and entered into as of by and between Merger Sub and
("Holder"). Capitalized terms used herein but
not otherwise defined shall have the meanings set forth in the Agreement.
WHEREAS, Holder has acquired certain Subject Shares and the
Agreement and Merger Sub require Holder, as a holder of such Subject Shares, to
become a party to the Agreement, and Holder agrees to do so in accordance with
the terms hereof.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Joinder hereby
agree as follows:
1. Agreement to be Bound. Holder hereby agrees that upon
execution of this Joinder, it shall become a party to the Agreement and shall be
fully bound by, and subject to, all of the covenants, terms and conditions of
the Agreement as though an original party thereto and shall be deemed a part of
Stockholder for all purposes thereof. In addition, Holder hereby agrees that all
shares of Company Common Stock held by Holder shall be deemed Subject Shares for
all purposes of the Agreement.
2. Successors and Assigns. Except as otherwise provided
herein, this Joinder shall bind and inure to the benefit of and be enforceable
by Merger Sub and its successors, heirs and assigns and Holder and any
subsequent holders of Subject Shares and the respective successors, heirs and
assigns of each of them, so long as they hold any Subject Shares.
3. Counterparts. This Joinder may be executed in separate
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
4. Notices. For purposes of Section 9(b) of the Agreement, all
notices, demands or other communications to the Holder shall be directed to:
[NAME]
[ADDRESS]
[FACSIMILE NUMBER]
5. Governing Law. This Joinder shall be governed by and
construed in accordance with the laws of the State of Delaware, without giving
effect to any rules, principles or provisions of choice of law or conflict of
laws.
6. Descriptive Headings. The descriptive headings of this
Joinder are inserted for convenience only and do not constitute a part of this
Joinder.
IN WITNESS WHEREOF, the parties hereto have executed this
Joinder to Voting Agreement as of the date first above written.
[NEWCO]
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
[HOLDER]
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
8
