EXHIBIT 10.12
IRREVOCABLE PROXY AGREEMENT
NOTICE: THE PROXY PROVIDED HEREUNDER IS IRREVOCABLE FOR ITS TERM
This IRREVOCABLE PROXY AGREEMENT (this "Agreement") is made and entered
into as of _______________, 2004, by and between Xxxxxxx X. Xxxxxxx ("Xxxxxxx")
and Xxxx Xxxxxx ("Zernov").
RECITALS
A. Concurrently with the execution of this Agreement, Photo Control
Corporation ("PCC") has issued to Xxxxxxx ________ shares of PCC's
common stock (the "Shares") pursuant to the terms and conditions of a
Subscription Agreement dated April 15, 2004.
B. PCC, Nature Vision, Zernov and certain other parties entered into that
certain Merger Agreement and Plan of Reorganization dated April 15,
2004 (the "Merger Agreement").
C. As a condition to entering into the Merger Agreement, Zernov requested
that Xxxxxxx, and Xxxxxxx agreed, appoint Zernov as Xxxxxxx'x proxy to
vote the Shares upon the terms and conditions contained in this
Agreement.
AGREEMENT
The parties agree as follows:
1. Agreement to Retain Shares. Xxxxxxx agrees not to transfer, sell,
exchange, pledge or otherwise dispose of or encumber Shares or to make
any offer or agreement relating thereto, at any time prior to the
Expiration Date. As used herein, the term "Expiration Date" shall mean
the earlier to occur of (a) such date and time Zernov has executed and
delivered to Xxxxxxx an instrument of termination which specifies in
writing that this Agreement has been terminated, or (b) the second
anniversary of this Agreement.
2. Agreement to Vote Shares and Grant Proxy. Effective on the date hereof,
Xxxxxxx hereby irrevocably appoints Zernov as his true and lawful
attorney-in-fact and proxy, with full power of substitution for and in
his name, to vote and otherwise act with respect to the Shares, at any
meetings of stockholders of PCC (or by written action in lieu thereof)
and at any other time the Shares are required to or may be voted or
acted upon. THE PARTIES ACKNOWLEDGE THAT THE PROXY PROVIDED FOR HERE IS
IRREVOCABLE AND COUPLED WITH AN INTEREST.
3. Representations, Warranties and Covenants of Xxxxxxx. Xxxxxxx
represents, warrants and covenants to Zernov as follows:
3.1 Ownership of Shares. Xxxxxxx is the sole beneficial and record
owner and holder of the Shares, which at the date hereof and
at all times up until the Expiration Date, will be free and
clear of any liens, claims, options, charges, security
interests, equities, options, warrants, rights to purchase
(including, without limitation, restrictions on rights of
disposition other than those imposed by applicable securities
laws), third party rights of any nature or other encumbrances.
3.2 Authority; Due Execution. Xxxxxxx has full power and authority
to make, enter into and carry out the terms of this Agreement.
Xxxxxxx has duly executed and delivered this Agreement and,
assuming the due authorization, execution and delivery of this
Agreement by Zernov, this Agreement constitutes a valid and
binding obligation of Xxxxxxx.
4. Termination. This Agreement shall terminate and shall have no further
force or effect as of the Expiration Date.
5. Miscellaneous.
5.1 Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction
to be invalid, void or unenforceable, then the remainder of
the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in
no way be affected, impaired or invalidated. The parties
further agree to replace such void or unenforceable provision
of this Agreement with a valid and enforceable provision that
will achieve, to the extent possible, the economic, business
and other purposes of such void or unenforceable provision.
5.2 Binding Effect and Assignment. This Agreement and all of the
provisions hereof shall be binding upon and inure to the
benefit of the parties hereto and their respective successors
and permitted assigns, but, except as otherwise specifically
provided herein, neither this Agreement nor any of the rights,
interests or obligations of the parties hereto may be assigned
by either of the parties without prior written consent of the
other.
5.3 Amendments and Modification. This Agreement may not be
modified, amended, altered or supplemented except upon the
execution and delivery of a written agreement executed by the
parties hereto.
5.4 Specific Performance; Injunctive Relief. The parties hereto
acknowledge that Zernov will be irreparably harmed and that
there will be no adequate remedy at law for a violation of any
of the covenants or agreements of Xxxxxxx set forth herein.
Therefore, it is agreed that, in addition to any other
remedies that may be available to Zernov upon any such
violation, Zernov shall have the right to enforce such
covenants and agreements by specific performance, injunctive
relief or by any other means available to Zernov at law or in
equity.
5.5 Governing Law. This Agreement shall be governed by, construed
and enforced in accordance with, the internal laws of the
State of Minnesota without regard to the choice of law
principles thereof.
5.6 Entire Agreement. This Agreement contains the entire
understanding of the parties in respect of the subject matter
hereof, and supersedes all prior negotiations and
understandings between the parties with respect to such
subject matter.
5.7 Counterparts. This 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.
5.8 Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction or
interpretation of this Agreement.
IN WITNESS WHEREOF, Zernov and Xxxxxxx have executed this Agreement as
of the date first written above.
"XXXXXXX"
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Xxxxxxx X. Xxxxxxx
"ZERNOV"
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Xxxx Xxxxxx
