EXHIBIT 4
VOTING AGREEMENT
This VOTING AGREEMENT is entered into as of June 4, 2003 (this
"Agreement") among (i) Made2Manage Systems, Inc., an Indiana corporation (the
"Company"); (ii) BV Holding Company, Inc., a Delaware corporation ("Buyer"); and
(iii) the shareholders listed on the signature pages hereto (collectively,
"Shareholders" and each individually, a "Shareholder"). Capitalized terms used
and not otherwise defined herein shall have the respective meanings assigned to
them in the Merger Agreement referred to below.
RECITALS:
A. As of the date hereof, the Shareholders collectively own of
record and beneficially shares of capital stock of the Company, as set forth on
Schedule I hereto (such shares, or any other voting or equity of securities of
the Company hereafter acquired by any Shareholder prior to the termination of
this Agreement, being referred to herein collectively as the "Shares").
B. Concurrently with the execution of this Agreement, Buyer and
the Company are entering into an Agreement and Plan of Merger dated as of the
date hereof (the "Merger Agreement"), pursuant to which, upon the terms and
subject to the conditions thereof, a subsidiary of Buyer will be merged with and
into the Company, and the Company will be the surviving corporation (the
"Merger").
C. As a condition to the willingness of Buyer to enter into the
Merger Agreement, Buyer has required that the Shareholders agree, and in order
to induce Buyer to enter into the Merger Agreement, the Shareholders are willing
to agree, to vote in favor of adopting the Merger Agreement and approving the
Merger, upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereby agree, severally and not jointly, as follows:
1. Voting of Shares.
1.1. Voting. Each Shareholder covenants and agrees that until the
termination of this Agreement in accordance with the terms hereof, at the
Shareholders Meeting or any other meeting of the shareholders of the Company
called with respect to any of the following matters, however called, and in any
action by written consent of the shareholders of the Company, such Shareholder
will vote, or cause to be voted, all of his, her or its respective Shares:
(a) in favor of the Company Voting Proposal, the
adoption of the Merger Agreement and the approval of the Merger
contemplated by the Merger Agreement, as the Merger Agreement may be
modified or amended from time to time according to its terms; and
Voting Agreement - Page 2
(b) against (i) any other Company Acquisition
Transaction; or (ii) any action or agreement, including any proposed
amendment of the Company's articles of incorporation or bylaws or other
proposal or transaction involving the Company or any of its
subsidiaries which action, agreement, amendment or other proposal or
transaction would in any manner impede, interfere with, delay, or
attempt to frustrate, prevent or nullify the Merger, the Merger
Agreement or any of the other transactions contemplated by the Merger
Agreement including, without limitation, any action or agreement that
would result in a breach in any material respect of any covenant,
representation, warranty or any other obligation or agreement of the
Company under the Merger Agreement (each of the foregoing in clause (i)
or (ii) above, a "Competing Transaction").
1.2. Grant of Proxy. Each Shareholder hereby irrevocably grants to,
and appoints, Buyer, and any individual designated in writing by it, and each of
them individually, as its proxy and attorney-in-fact (with full power of
substitution), for and in its name, place and stead, to vote his, her or its
Shares at any meeting of the shareholders of the Company called with respect to
any of the matters specified in, and in accordance and consistent with this
Section 1. Each Shareholder understands and acknowledges that Buyer is entering
into the Merger Agreement in reliance upon the Shareholder's execution and
delivery of this Agreement. Each Shareholder hereby affirms that the irrevocable
proxy set forth in this Section 1.2 is given in connection with the execution of
the Merger Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of such Shareholder under this Agreement. Except as
otherwise provided for herein, each Shareholder hereby (i) affirms that the
irrevocable proxy is coupled with an interest and may under no circumstances be
revoked; (ii) ratifies and confirms that the proxies appointed hereunder may
lawfully do or cause to be done by virtue hereof; and (iii) affirms that such
irrevocable proxy is executed and intended to be irrevocable in accordance with
the provisions of Section 23-1-31-2 of the IBCL. Notwithstanding any other
provisions of this Agreement, the irrevocable proxy granted hereunder shall
automatically terminate upon the termination of this Agreement.
2. Transfer of Shares. Each Shareholder covenants and agrees that such
Shareholder will not directly or indirectly, (a) sell, assign, transfer
(including by merger, testamentary disposition, interspousal disposition
pursuant to a domestic relations proceeding or otherwise by operation of law),
pledge (except in connection with a bona fide loan transaction, provided that
any pledgee agrees not to transfer, sell, exchange, pledge or otherwise dispose
of or encumber the Shares prior to the Expiration Date and also agrees to be
subject to the Proxy), encumber or otherwise dispose of any of the Shares, (b)
deposit any of the Shares into a voting trust or enter into a voting agreement
or arrangement with respect to the Shares or grant any proxy or power of
attorney with respect thereto which is inconsistent with this Agreement or (c)
enter into any contract, option or other arrangement or undertaking with respect
to the direct or indirect sale, assignment, transfer (including by merger,
testamentary disposition, interspousal disposition pursuant to a domestic
relations proceeding or otherwise by operation of law) or other disposition of
any Shares. Notwithstanding the foregoing, a Shareholder may transfer the Shares
to a member of such Shareholder's immediate family or to a trust or other entity
created by such Shareholder for tax or estate planning purposes, provided that
any such transferee agrees to assume the obligations of the Shareholder
hereunder with respect to any Shares so transferred.
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3. Representations and Warranties of the Shareholders. Each Shareholder on
its own behalf hereby severally represents and warrants to Buyer with respect to
itself and its, his or her ownership of the Shares as follows:
3.1. Ownership of Shares. On the date hereof, the Shares are owned
beneficially by Shareholder or its nominee, and the Shares represent all of the
shares of Common Stock owned (beneficially or of record) by such Shareholder.
Shareholder has sole voting power, without restrictions, with respect to all of
the Shares. The Shares are free and clear of all liens, pledges, security
interests, claims, options, rights of first refusal and any other similar
restrictions.
3.2. Power, Binding Agreement. Shareholder has (and will have) the
legal capacity, power and authority to enter into and perform all of its
obligations under this Agreement. The execution, delivery and performance of
this Agreement by Shareholder will not violate any agreement to which
Shareholder is a party, including, without limitation, any voting agreement,
shareholders' agreement, partnership agreement or voting trust. This Agreement
has been duly and validly executed and delivered by Shareholder and constitutes
a valid and binding obligation of Shareholder, enforceable against Shareholder
in accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally and subject, as to enforceability, to
general principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity).
3.3. No Conflicts. The execution and delivery of this Agreement do
not, and the consummation of the transactions contemplated hereby will not,
conflict with or result in any violation of, or default (with or without notice
or lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or to loss of a material benefit
under, any provision of any loan or credit agreement, note, bond, mortgage,
indenture, lease, or other agreement, instrument, permit, concession, franchise,
license, judgment, order, decree, statute, law, ordinance, rule or regulation
applicable to Shareholder or any of its properties or assets, other than such
conflicts, violations or defaults or terminations, cancellations or
accelerations which individually or in the aggregate do not impair the ability
of Shareholder to perform its obligations hereunder.
4. No Solicitation. Notwithstanding the fiduciary duties set forth in
Section 7 of any Shareholder who is a director, prior to the termination of this
Agreement in accordance with its terms, each Shareholder agrees, in its
individual capacity as a shareholder of the Company, that (a) it will not, nor
will it authorize or permit any of its employees, agents and representatives to,
directly or indirectly, (i) initiate, solicit or encourage any inquiries or the
making of any Competing Transaction, (ii) enter into any agreement with respect
to any Competing Transaction, or (iii) participate in any discussions or
negotiations regarding, or furnish to any person any information with respect
to, or take any other action to facilitate any inquiries or the making of any
proposal that constitutes, or may reasonably be expected to lead to, any
Competing Transaction, and (b) it will notify Buyer as soon as possible if any
such inquiries or proposals are received by, any information or documents is
requested from, or any negotiations or discussions are sought to be initiated or
continued with, it or any of its affiliates in its individual capacity.
Voting Agreement - Page 4
5. Termination. This Agreement (including the proxies granted herein)
shall terminate and shall have no further force or effect upon earlier to occur
of (i) the Effective Time and (ii) the date of the termination of the Merger
Agreement in accordance with its terms.
6. Specific Performance. The parties hereto agree that (i) the
representations, warranties, covenants and restrictions set forth in this
Agreement are necessary, fundamental and required for the protection of Buyer
and to preserve for Buyer the benefits of the Merger Agreement and the
transactions contemplated thereby; (ii) such covenants relate to matters which
are of a special, unique, and extraordinary character that gives each such
representation, warranty, covenant and restriction a special, unique, and
extraordinary value; and (iii) a breach of any such representation, warranty,
covenant or restriction, or any other term or provision of this Agreement, will
result in irreparable harm and damages to Buyer which cannot be adequately
compensated by a monetary award. Accordingly, the parties hereby agree that in
addition to all other remedies available at law or in equity, Buyer shall be
entitled to the immediate remedy of specific performance, a temporary and/or
permanent restraining order, preliminary injunction, or such other form of
injunctive or equitable relief as may be used by any court of competent
jurisdiction to restrain or enjoin any of the parties hereto from breaching any
representations, warranties, covenants or restrictions set forth in this
Agreement, or to specifically enforce the terms and provisions hereof.
7. Fiduciary Duties. Each Shareholder is signing this Agreement solely in
such Shareholder's capacity as an owner of his, her or its respective Shares,
and nothing herein shall prohibit, prevent or preclude such Shareholder from
taking or not taking any action in his or her capacity as an officer or director
of the Company to the extent permitted by the Merger Agreement, as determined by
such Shareholder in good faith after consultation with and advice from outside
counsel to the Company.
8. Miscellaneous.
8.1. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements and understandings, both written and oral,
between the parties with respect thereto. This Agreement may not be amended,
modified or rescinded except by an instrument in writing signed by each of the
parties hereto.
8.2. Invalidity. 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. 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 to the fullest extent
permitted by applicable law in a mutually acceptable manner in order that the
terms of this Agreement remain as originally contemplated to the fullest extent
possible.
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8.3. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Indiana without regard to
the principles of conflicts of law thereof.
8.4. Counterparts; Facsimile Signatures. This Agreement may be
executed in counterparts, each of which shall be deemed an original and all of
which together shall constitute one and the same instrument. This Agreement may
be executed by facsimile signatures.
8.5. Further Assurances. Each Shareholder shall, upon request of
the Buyer, execute and deliver any additional documents and take such further
actions as may reasonably be deemed by the Buyer to be necessary or desirable to
carry out the provisions hereof and to vest the power to vote such Shareholder's
Shares as contemplated by Section 1 in the Buyer.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed individually or by its respective duly authorized officer
as of the date first written above.
MADE2MANAGE SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxxxx
________________________________________
Name: Xxxxx X. Xxxxxxx
Title: President and CEO
BV HOLDING COMPANY, INC.
By: /s/ R. Xxxxx Xxxxxx
________________________________________
R. Xxxxx Xxxxxx, President
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[SIGNATURE PAGE TO VOTING AGREEMENT]
Voting Agreement - Page 7
SHAREHOLDERS:
/s/ Xxxxx X. Xxxxxxx
___________________________________________
XXXXX X. XXXXXXX
/s/ Xxxxx X. Xxxxx
___________________________________________
XXXXX X. XXXXX
/s/ Xxxx X. Xxxx
___________________________________________
XXXX X. XXXX
/s/ Xxxxxx X. Xxxxx
___________________________________________
XXXXXX X. XXXXX
/s/ Xxxxxxx X. Xxxxxxxx
___________________________________________
XXXXXXX X. XXXXXXXX
/s/ Xxxxxxx X. Xxxxxxxx
___________________________________________
XXXXXXX X. XXXXXXXX
/s/ Xxx Xxxxxxxx
___________________________________________
XXX XXXXXXXX
/s/ Xxxxxxxxx X. Xxxxxx
___________________________________________
XXXXXXXXX X. XXXXXX
[SIGNATURE PAGE TO VOTING AGREEMENT]
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SCHEDULE I
NUMBER OF SHARES
SHAREHOLDER ADDRESS OF SHAREHOLDER OF COMMON STOCK
Xxxxx X. Xxxxxxx 000 X. 00xx Xxxxxx, Xxxxx 000 98,400
Xxxxxxxxxxxx, XX 00000
Xxxxx X. Xxxxx 000 X. 00xx Xxxxxx, Xxxxx 000 2,500
Xxxxxxxxxxxx, XX 00000
Xxxx X. Xxxx 000 X. 00xx Xxxxxx, Xxxxx 000 24,000
Xxxxxxxxxxxx, XX 00000
Xxxxxx X. Xxxxx 000 X. 00xx Xxxxxx, Xxxxx 000 10,000
Xxxxxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxxx 000 X. 00xx Xxxxxx, Xxxxx 000 12,900
Xxxxxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxxx 000 X. 00xx Xxxxxx, Xxxxx 000 000
Xxxxxxxxxxxx, XX 00000
Xxx Xxxxxxxx 000 X. 00xx Xxxxxx, Xxxxx 000 000
Xxxxxxxxxxxx, XX 00000
Xxxxxxxxx X. Xxxxxx 000 X. 00xx Xxxxxx, Xxxxx 000 5,000
Xxxxxxxxxxxx, XX 00000
TOTAL: 153,400
[SIGNATURE PAGE TO VOTING AGREEMENT]
