VOTING AND STOCK OPTION AGREEMENT
VOTING AND STOCK OPTION AGREEMENT (this "Agreement"), dated as of
October 2, 2000, by and between Minnesota Mining and Manufacturing Company, a
Delaware corporation ("Parent"), Xxxxxxxx Xxxxxx, Inc., an Indiana corporation
(the "Company"), and the Stockholders listed on Schedule A hereto (collectively,
the "Stockholders").
RECITALS
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A. Parent, Barbados Acquisition, Inc., ("Merger Sub") an Indiana
Corporation and wholly owned Subsidiary of Parent, and the Company, are entering
into an Agreement and Plan Merger of even date herewith (the "Merger Agreement")
providing for a business combination between Parent and the Company.
B. As of the date of this Agreement, the Stockholders own beneficially and
of record the Common Shares of the Company ("Company Common Shares") set forth
opposite their respective names on Schedule A (Company Common Shares owned by
each Stockholder are referred to as such Stockholder's "Owned Shares").
C. Subject to the terms and conditions of the Merger Agreement, the
Stockholders will receive shares ("Parent Shares") of the Parent's common stock,
par value $0.01 per share ("Parent Common Stock") in exchange for the Shares (as
defined in Section 1) held by them at the Effective Time.
D. As an inducement and a condition to Parent's willingness to enter into
the Merger Agreement, Parent, the Company and the Stockholders are entering into
this Agreement.
E. Capitalized terms not defined herein shall have the meanings set forth
in the Merger Agreement.
F. This Agreement and the Merger Agreement are being entered into
simultaneously.
NOW, THEREFORE, in consideration of the execution and delivery by Parent of
the Merger Agreement and the mutual covenants, conditions and agreements
contained herein and therein, and intending to be legally bound hereby, the
parties agree as follows:
1. Voting Agreement. Each Stockholder agrees in accordance with Section
23-1-32-1 of the IBCL that, at any meeting of the stockholders of the Company (a
"Company Stockholders' Meeting"), however called, and at every adjournment or
postponement thereof, he, she or it shall (i) appear at the meeting or otherwise
cause his, her or its Owned Shares, together with any Company Common Shares
acquired by the Stockholder after the date of this Agreement whether upon the
exercise of options or warrants conversion of convertible securities or
otherwise (the Stockholder's acquired shares, together with the Stockholder's
Owned Shares, are referred to as the Stockholder's "Shares"), to be counted as
present thereat for purposes of establishing a quorum, (ii) vote, or execute
consents in respect of, his, her or its Shares, or cause his, her or its Shares
to be voted, or consents to be executed in respect thereof, in favor of the
approval and adoption of the Merger Agreement, and any action required in
furtherance thereof and (iii) for the period commencing the date hereof and
ending 90 days after the date of termination of the Merger Agreement, vote, or
execute consents in respect of, his, her or its Shares, or cause his, her or its
Shares to be voted, or consents to be executed in respect thereof, against any
agreement or transaction relating to any Acquisition Proposal presented for the
Stockholders of the Company or in respect of which vote of consent of the
Stockholder is requested or sought.
2. Irrevocable Proxy. As security for the Stockholders' obligations under
Section 1, each of the Stockholders hereby irrevocably constitutes and appoints
Parent as his, her or its attorney and proxy in accordance with the provisions
of Section 23-1-30-3 of the IBCL, with full power of substitution and
resubstitution, to cause the Stockholder's shares to be counted as present at
any Company Stockholders Meetings to vote his, her or its Shares at any Company
Stockholders' Meeting, however called, and execute consents in respect of his,
her or its shares as and to the extent provided in Section 1. THIS PROXY AND
POWER OF ATTORNEY IS IRREVOCABLE AND COUPLED WITH AN INTEREST. Each Stockholder
hereby revokes all other proxies and powers of attorney with respect to his, her
or its Shares that he, she or it may have heretofore appointed or granted, and
no subsequent proxy or power of attorney shall be granted (and if granted, shall
not be effective) by any Stockholder with respect thereto, other than for the
sole purpose of voting Shares as contemplated by, or other than in a manner
inconsistent with the Stockholders obligations under Section 1.
3. Option. (a) Subject to the terms and conditions set forth in this
Agreement, each of the Stockholders hereby grants to Parent an irrevocable
option (the "Option") to purchase (i) the number of Shares set forth next to
such Stockholder's name on Exhibit A hereto (as adjusted as set forth herein)
and any other Shares owned by such Stockholder beneficially or acquired after
the date of this Agreement, at a purchase price of $19.00 (as adjusted as set
forth herein) per Share (the "Purchase Price").
(b) The Option may be exercised by Parent, in whole at any time prior to
the earlier of (i) the date upon which the Effective Time (as defined in the
Merger Agreement) occurs and (ii) the date fifteen business days after the date
of termination of the Merger Agreement.
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(c) In the event that Parent wishes to exercise the Option, it shall send
to the Stockholders a written notice (the date of each such notice being herein
referred to as a "Notice Date") to that effect, which notice also specifies a
date not earlier than three business days nor later than 30 business days from
the Notice Date for the closing of such purchase (an "Option Closing Date");
provided, however, that (i) if the closing of a purchase and sale pursuant to
the Option (an "Option Closing") cannot be consummated by reason of any
applicable judgment, decree, order, law or regulation, the period of time that
otherwise would run pursuant to this sentence shall run instead from the date on
which the restriction on consummation has expired or been terminated and (ii)
without limiting the foregoing, if prior notification to or approval of any
regulatory authority is required in connection with the purchase, Parent and the
Stockholders shall promptly file the required notice or application for approval
and shall cooperate in the expeditious filing of such notice or application, and
the period of time that otherwise would run pursuant to this sentence shall run
instead from the date on which, as the case may be, (A) any required
notification period has expired or been terminated or (B) any required approval
has been obtained, and in either event, any requisite waiting period has expired
or been terminated. Each of Parent and the Stockholders agrees to use
commercially reasonable efforts to cooperate with and provide information to the
other, for the purpose of any required notice or application for approval. Any
exercise of the Option shall be deemed to occur on the Notice Date relating
thereto. The place of any Option Closing shall be at the offices of Parent, 0X
Xxxxxx, Xx Xxxx, XX 00000 and the time of the Option Closing shall be 10:00 a.m.
(Central Time) on the applicable Option Closing Date.
(d) At any Option Closing, Parent shall pay to each Stockholder in
immediately available funds by wire transfer to a bank account designated in
writing by such Stockholder an amount equal to the Purchase Price multiplied by
the number of Shares being delivered by such Stockholder; provided, that failure
or refusal of any Stockholder to designate a bank account shall not preclude
Parent from exercising the Option, in whole or in part.
(e) At any Option Closing, simultaneously with the delivery of immediately
available funds as provided above, each Stockholder shall deliver to Parent a
certificate or certificates representing its pro rata portion of the Shares to
be purchased at such Option Closing, which Shares shall be free and clear of all
liens, claims, charges and encumbrances of any kind whatsoever.
(f) In the event of any change in the Company Common Shares by reason of a
stock dividend, split-up, merger, recapitalization, combination, exchange of
shares or similar transaction, the type and number of Shares subject to the
Option, and the Purchase Price therefor, shall be adjusted appropriately, so
that Parent shall receive upon exercise of the Option the number and class of
shares or other securities or property that Parent would have received in
respect of the Option Shares if the Option had been exercised immediately prior
to such event or the record date therefor, as applicable.
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4. Registration Rights. The Company shall, if requested by Parent at any
time and from time to time within two years after the date of first exercise of
the Option, as expeditiously as possible prepare and file up to two registration
statements under the Securities Act if such registration is necessary in order
to permit the sale or other disposition of any or all securities that have been
acquired by exercise by Parent of the Option, in accordance with the intended
method of sale or other disposition stated by Parent, including a "shelf"
registration statement under Rule 415 under the Securities Act or any successor
provision; and the Company shall use commercially reasonable efforts to qualify
such securities under any applicable state securities laws. Parent agrees to use
reasonable best efforts to cause, and to cause any underwriters of any sale or
other disposition to cause, any sale or other disposition pursuant to such
registration statement to be effected on a widely distributed basis. The Company
shall use reasonable best efforts to cause each such registration statement to
become effective, to obtain all consents or waivers of other parties which are
required therefor, and to keep such registration statement effective for such
period not in excess of 90 calendar days from the day such registration
statement first becomes effective as may be reasonably necessary to effect such
sale or other disposition. The obligations of the Company to file a registration
statement and to maintain its effectiveness may be suspended for one or more
periods of time not exceeding 90 calendar days in the aggregate with respect to
any registration statement if the Board of Directors of the Company shall have
determined that the filing of such registration statement or the maintenance of
its effectiveness would require disclosure of nonpublic information that would
materially and adversely affect the Company or would interfere with a planned
merger, sale of material assets, recapitalization or other significant corporate
action (other than the issuance of equity securities). Any registration
statement prepared and filed under this Section 4, and any sale covered thereby,
shall be at the Company's expense except for underwriting discounts or
commissions and brokers' fees, which shall be borne solely by Parent. Parent
shall provide in writing all information reasonably requested by the Company for
inclusion in any registration statement to be filed hereunder. If, during the
time periods referred to in the first sentence of this Section, the Company
effects a registration under the Securities Act of the Company's equity
securities for its own account or for any other of its stockholders (other than
on Form S-4 or Form S-8, or any successor form), it shall allow Parent the right
to participate in such registration; provided however, that, if the managing
underwriters of such offering advise the Company that in their opinion the
number of securities requested to be included in such registration exceeds the
number which can be sold in such offering on a commercially reasonable basis,
priority shall be given to the securities intended to be included therein by the
Company for its own account and, thereafter, the Company shall include the
securities requested to be included therein by Parent pro rata with the
securities intended to be included therein by other stockholders of the Company.
In connection with any registration pursuant to this Section, Parent and the
Company shall provide each other and any underwriter of the offering with
customary representations, warranties, covenants, indemnification, and
contribution in connection with such registration.
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5. Representations and Warranties of Parent. Parent represents and warrants
to the Stockholders as follows:
(a) Organization; Due Authorization; Enforceability. Parent is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware. Parent has full corporate power and authority to
execute and deliver this Agreement. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly and
validly authorized by the Board of Directors of Parent, and no other corporate
proceedings on the part of Parent are necessary to authorize this Agreement or
to consummate the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by Parent and constitutes a valid and binding
agreement of Parent, enforceable against Parent in accordance with its terms,
subject to applicable bankruptcy, insolvency, moratorium or other similar laws
relating to creditors' rights and to general principles of equity.
(b) No Conflicts. No authorization, consent or approval of, or filing with,
any court or any public body or authority is necessary for the consummation by
Parent of the transactions contemplated by this Agreement. The execution,
delivery and performance of this Agreement by Parent will not constitute a
breach, violation or default (or any event which, with notice or lapse of time
or both, would constitute a default) under, or result in the termination of, or
accelerate the performance required by, or result in a right of termination or
acceleration under, or result in the creation of any lien or encumbrance upon
any of the properties or assets of Parent under, any note, bond, mortgage,
indenture, deed of trust, license, lease, agreement or other instrument to which
Parent is a party or by which its properties or assets are bound, other than
breaches, violations, defaults, terminations, accelerations or creation of liens
and encumbrances which, in the aggregate, would not materially impair the
ability of Parent to perform its obligations hereunder.
(c) Brokers. No broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission in connection with the
transactions contemplated hereby based upon arrangements made by or on behalf of
Parent.
6. Representations and Warranties of the Stockholders. Each Stockholder
hereby severally and not jointly represents and warrants to Parent as follows:
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(a) Organization; Due Authorization; Enforceability. If the Stockholder is
a corporation or other entity, the Stockholder is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization. The Stockholder has full power and authority to execute and
deliver this Agreement. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by all necessary action on the part of the Stockholder, and no other
proceedings on the part of the Stockholder are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby. This Agreement
has been duly and validly executed and delivered by the Stockholder and
constitutes a valid and binding agreement of the Stockholder, enforceable
against such Stockholder in accordance with its terms, subject to applicable
bankruptcy, insolvency, moratorium or other similar laws relating to creditors'
rights and to general principles of equity.
(b) Ownership of Shares of Company Common Shares; Voting Rights. Except as
set forth on Schedule A, the Stockholder owns, of record and beneficially, the
shares of Company Common Shares set forth opposite the Stockholder's name on
Schedule A. The Stockholder has sole voting power with respect to his, her or
its Owned Shares. Except pursuant to this Agreement or as set forth on Schedule
A, the Stockholder's Owned Shares and the Shares are not subject to any voting
trust agreement or other contract, agreement, arrangement, commitment or
understanding restricting or otherwise relating to the voting, dividend rights
or disposition of such Owned Shares. Upon the exercise of the Option and the
delivery to Parent by Stockholder of a certificate or certificates evidencing
the Shares, Parent will receive good, valid and marketable title to the Shares,
free and clear of all security interests, liens, claims, pledges, options,
rights of first refusal, agreements, limitations on Parent's voting rights,
charges and other encumbrances of any nature whatsoever.
(c) No Conflicts. No authorization, consent or approval of, or filing with,
any court or any public body or authority is necessary for the consummation by
such Stockholder of the transactions contemplated by this Agreement. The
execution, delivery and performance of this Agreement by such Stockholder will
not constitute a breach, violation or default (or any event which, with notice
or lapse of time or both, would constitute a default) under, or result in the
termination of, or accelerate the performance required by, or result in a right
of termination or acceleration under, or result in the creation of any lien or
encumbrance upon any of the properties or assets of such Stockholder under, any
note, bond, mortgage, indenture, deed of trust, license, lease, agreement or
other instrument to which such Stockholder is a party or by which his, her or
its properties or assets are bound, other than breaches, violations, defaults,
terminations, accelerations or creation of liens and encumbrances which, in the
aggregate, would not materially impair the ability of such Stockholder to
perform his, her or its obligations hereunder.
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(d) Brokers. No broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission in connection with the
transactions contemplated hereby based upon arrangements made by or on behalf of
the Stockholder.
7. Representations and Warranties of the Company. The Company represents
and warrants to Parent as follows:
(a) Organization; Due Authorization; Enforceability. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Indiana. The Company has full corporate power and authority to
execute and deliver this Agreement. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly and
validly authorized by the Board of Directors of the Company, and no other
corporate proceedings on the part of the Company are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby. This Agreement
has been duly and validly executed and delivered by the Company and constitutes
a valid and binding agreement of the Company, enforceable against the Company in
accordance with its terms, subject to applicable bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights and to general
principles of equity.
(b) No Conflicts. No authorization, consent or approval of, or filing with,
any court or any public body or authority is necessary for the consummation by
the Company of the transactions contemplated by this Agreement. The execution,
delivery and performance of this Agreement by the Company will not constitute a
breach, violation or default (or any event which, with notice or lapse of time
or both, would constitute a default) under, or result in the termination of, or
accelerate the performance required by, or result in a right of termination or
acceleration under, or result in the creation of any lien or encumbrance upon
any of the properties or assets of the Company under, any note, bond, mortgage,
indenture, deed of trust, license, lease, agreement or other instrument to which
the Company is a party or by which its properties or assets are bound, other
than breaches, violations, defaults, terminations, accelerations or creation of
liens and encumbrances which, in the aggregate, would not materially impair the
ability of the Company to perform its obligations hereunder.
(c) Brokers. No broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission in connection with the
transactions contemplated hereby based upon arrangements made by or on behalf of
the Company.
(d) State Takeover Statutes. The Board of Directors of the Company has
approved the Merger and this Agreement and such approval is sufficient to render
inapplicable to the Merger, this Agreement and the transactions contemplated by
this Agreement, the provisions of IC 23-1-43 to the extent, if any, such section
is applicable to the transactions contemplated by this Agreement. The Board of
Directors of the Company has amended the bylaws of the Company so as to render
inapplicable to this Agreement the provisions of IC 23-1-42. To the Company's
knowledge, no other state takeover statute or similar statute or regulation
applies to the transactions contemplated hereby.
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(e) Rights Agreement. No "Distribution Date" or "Triggering Event" (as such
terms are defined in the Rights Agreement, dated as of April 21, 1998, between
the Company and Compushare Investor Services, LLC, as successor rights agent, as
amended (the "Rights Agreement")) has occurred as of this date. This Agreement,
and the consummation of the transactions contemplated hereunder have been
approved by at least two-thirds (2/3) of the Disinterested Directors (as defined
in the Rights Agreement). The Rights Agreement has been amended so that neither
the execution or delivery of this Agreement, nor the exchange of the Company
Common Shares for the shares of Parent Common Stock and cash in accordance with
Article II of the Merger Agreement will cause (A) the Rights issued pursuant to
the Rights Agreement to become exercisable under the Rights Agreement, (B)
Parent or Merger Sub to be deemed an "Acquiring Person" (as defined in the
Rights Agreement), or (C) the "Shares Acquisition Date" or a "Triggering Event"
(each as defined in the Rights Agreement) to occur upon any such event. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby will not result in the ability of any Person to
exercise any Rights or cause the Rights to separate from the shares of Company
Common Shares to which they are attached or to be triggered or become
exercisable.
8. Stockholder Covenants. Each Stockholder hereby severally covenants and
agrees as follows:
(a) Each Stockholder hereby agrees, during the period commencing on the
date hereof and ending 90 days after the termination of the Merger Agreement,
except as contemplated hereby, not to sell, transfer, pledge, encumber, assign
or otherwise dispose of, or enter into any contract, option or other arrangement
or understanding with respect to the sale, transfer, pledge, encumbrance,
assignment or other disposition of (all of the foregoing, "Sell", "Sold" or
"Sale", as the case may be), any of the Owned Shares or Shares, provided,
however, that such Stockholder may transfer, pledge, encumber, assign or
otherwise dispose the Owned Shares or Shares as a gift, in which case, as a
condition of the gift, the Stockholder must require the person to which any such
Owned Shares or Shares are to be transferred, pledged, encumbered, assigned or
otherwise disposed of to agree in writing, pursuant to an agreement reasonably
satisfactory to Parent to which Parent is an express third-party beneficiary,
that with respect to such Owned Shares or Shares such person shall be subject to
the restrictions and obligations hereunder as if such person was a Stockholder
hereunder, (ii) not to grant any proxies, powers of attorney or other
authorization or consent, deposit any shares of capital stock of the Company
into a voting trust or enter into a voting agreement with respect to any such
Shares and (iii) not to take any action that would make any representation or
warranty of such Stockholder contained in this Agreement untrue or incorrect or
have the effect of preventing or disabling such Stockholder from performing his,
her or its obligations under this Agreement.
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(b) Such Stockholder hereby agrees, during the period commencing on the
date hereof and ending 90 days after the termination of the Merger Agreement, to
promptly notify Parent of the number of new shares of capital stock of the
Company acquired by such Stockholder, if any, after the date of this Agreement.
(c) Such Stockholder shall immediately cease any discussions or
negotiations with any parties other than Parent that may be ongoing with respect
to an Acquisition Proposal. For so long as Section 5.2 of the Merger Agreement
is in effect, such Stockholder shall not (i) solicit, initiate or encourage any
inquiries or the making of any Acquisition Proposal, or (ii) participate in any
discussions or negotiations regarding any Acquisition Proposal, except to the
extent such discussions or negotiations are participated in by the Stockholder
in his or her capacity as a director of the Company in accordance with the terms
of the Merger Agreement.
9. Non Competition; Non-Solicitation.
(a) Upon the terms and subject to the conditions set forth in this Section
9, each Stockholder covenants and agrees that, as a material consideration
running to Parent for the Parent entering into the Merger Agreement, for a
period of five years from and after the earlier of the exercise of the Option
hereunder or the Effective Time, each Stockholder will not engage in any
business directly or indirectly in competition with the business as carried on,
or as proposed to be carried on, by the Company or its subsidiaries or
affiliates on the earlier of the exercise of the Option hereunder or the
Effective Time, in the United States of America, or in any country or political
subdivision of the world in which the Business is located or conducts business.
(b) The term of the covenant contained in Section 9(a) hereof shall be
tolled with respect to any Stockholder for the period commencing on the date any
successful action is filed for injunctive relief or damages arising out of a
breach by such Stockholder of Section 9(a) hereof and ending upon final
adjudication (including appeals) of such action.
(c) If, in any judicial proceeding, the court shall refuse to enforce the
covenant contained in Section 9(a) hereof because the time limit is too long, it
is expressly understood and agreed between the parties hereto that for purposes
of such proceeding such time limitation shall be deemed reduced to the extent
necessary to permit enforcement of such covenant. If, in any judicial
proceeding, the court shall refuse to enforce the covenant contained in Section
9(a) hereof because it is more extensive (whether as to geographic area, scope
of business or otherwise) than necessary to protect the business and goodwill of
Parent, it is expressly understood and agreed between the parties hereto that
for purposes of such proceeding the geographic area, scope of business or other
aspect shall be deemed reduced to the extent necessary to permit enforcement of
such covenant.
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(d) Each Stockholder acknowledges that a breach of Section 9(a) hereof
would cause irreparable damage to Parent, and in the event of each Stockholder's
actual or threatened breach of the provisions of Section 9(a) hereof, Parent
shall be entitled to a temporary restraining order and an injunction restraining
each Stockholder from breaching such covenants without the necessity of posting
bond or proving irreparable harm, such being conclusively admitted by each
Stockholder. Nothing shall be construed as prohibiting Parent from pursuing any
other available remedies for such breach or threatened breach, including the
recovery of damages from each Stockholder.
(e) Each Stockholder covenants and agrees that, for a period of one year,
following the earlier of the exercise of the Option hereunder or the Effective
Time, he or she will not, and will cause his or her affiliates not to, directly
or indirectly, solicit for employment any employee of the Company or any of its
affiliates who is engaged in the business of the Company and was an employee of
the Company as of the date hereof to become an employee or otherwise provide
services to such Stockholder or any of its affiliates.
10. Miscellaneous.
(a) Fees and Expenses. Except as otherwise provided in the Merger
Agreement, all costs and expenses incurred in connection with this Agreement and
the transactions contemplated hereby shall be borne by the party incurring such
expenses.
(b) Amendment. This Agreement may not be amended except by an instrument in
writing signed on behalf of each of the parties.
(c) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF INDIANA, WITHOUT REGARD TO ITS
CONFLICT OF LAWS RULES OR PRINCIPLES.
(d) Notices. All notices or other communications under this Agreement shall
be in writing and shall be given (and shall be deemed to have been duly given
upon receipt) by delivery in person, by cable, telegram, telex or other standard
form of telecommunications, or by registered or certified mail, postage prepaid,
return receipt requested, addressed as follows:
If to a Stockholder:
to the address set forth beneath the name of such
Stockholder on Schedule A
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If to Parent:
Minnesota Mining and Manufacturing Company
0X Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: General Counsel
With a copy to:
Minnesota Mining and Manufacturing Company
0X Xxxxxx
XX. Xxxx, Xxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxx Xxxxxx
with a further copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx, Esq.
Telecopy No.: (000) 000-0000
If to the Company:
To the address set forth in the Merger Agreement
or to such other address as any party may have furnished to the other parties in
writing in accordance with this Section.
(e) Assignment; Binding Effect; No Third Party Beneficiaries. 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 party. Subject to the preceding
sentence, this Agreement (including the obligations of each Stockholder under
Sections 1 and 2 hereof) shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and assigns. Notwithstanding
anything contained in this Agreement to the contrary, nothing in this Agreement,
expressed or implied, is intended to confer on any person other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
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(f) ENFORCEMENT. THE PARTIES HERETO AGREE THAT IRREPARABLE DAMAGE WOULD
OCCUR IN THE EVENT THAT ANY OF THE PROVISIONS OF THIS AGREEMENT WERE NOT
PERFORMED IN ACCORDANCE WITH THEIR SPECIFIC TERMS OR WERE OTHERWISE BREACHED. IT
IS ACCORDINGLY AGREED THAT, SUBJECT TO THE NEXT SENTENCE, THE PARTIES SHALL BE
ENTITLED TO AN INJUNCTION OR INJUNCTIONS TO PREVENT BREACHES OF THIS AGREEMENT
AND TO ENFORCE SPECIFICALLY THE TERMS AND PROVISIONS HEREOF IN ANY COURT OF THE
UNITED STATES OR ANY STATE HAVING JURISDICTION, THIS BEING IN ADDITION TO ANY
OTHER REMEDY TO WHICH THEY ARE ENTITLED AT LAW OR IN EQUITY.
(g) Counterparts. This Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the same
instrument. Each counterpart may consist of a number of copies hereof each
signed by less than all, but together signed by all of the parties hereto.
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IN WITNESS WHEREOF, Parent and the Stockholders have caused this Agreement
to be duly executed as of the day and year first above written.
Minnesota Mining and Manufacturing Company
By:
/s/ Xxxxxx Xxxxxxxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxxxxxxx
Title: Vice President, Chief Financial
Officer
XXXXXXXX XXXXXX, INC.
By: /s/ Xxxxx X. Xxxxx
----------------------------------------
Name: Xxxxx X. Xxxxx
Title: President and Chief Executive
Officer
STOCKHOLDERS
/s/ Xxxxxx X. Xxxxxxxx
---------------------------------------------
Xxxxxx X. Xxxxxxxx
/s/ Xxxxx X. Xxxxxxxx
---------------------------------------------
Xxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxx
---------------------------------------------
Xxxxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxx
---------------------------------------------
Xxxxx X. Xxxxx
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Schedule A
Stockholder Options Shares
----------- ------- ------
Xxxxxx X. Xxxxxxxx -0- 1,115,360
000 Xxxxxxxx Xxxxx Xxxx
Xxxxxx Xxxxxxx, XX 00000
Xxxxx X. Xxxxxxxx 34,000 280,741
0000 Xxxxx Xxxx 00
Xxxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxx 88,000 37,099
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Xxxxx X. Xxxxx 97,650 162,451
000 Xxxxxx Xxx
Xxxxxxxxxxx, XX 00000
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