Exhibit 9
FORM OF
VOTING AGREEMENT
THIS AGREEMENT (the "Agreement"), dated as of March ____, 1997, is made and
entered into by and among Ultimate Electronics, Inc., a Delaware corporation
("Ultimate"), and Messrs. Xxxxxx X. Xxxxxxx, Xxxx X. Xxxxxx and Xxxxx X.
Xxxxxx (the "Shareholders").
RECITALS
1. Messrs. Xxxxxxx, Kohler and Xxxxxx are each members of the Board of
Directors and shareholders of Audio King Corporation, a Minnesota corporation
("Audio King"). Annex A to this Agreement shows the number of shares of
common stock, par value $.001 per share, of Audio King (the "Audio King
Common Stock") owned, beneficially and of record, by each of the Shareholders
as of the date hereof (the "Shares") and the number of Shares that are
subject to this Agreement (the "Voting Shares").
2. Ultimate and Audio King have entered into an Agreement and Plan of
Merger, dated March 4, 1997 (the "Merger Agreement"), pursuant to which Audio
King will be merged with and into Ultimate or a wholly-owned subsidiary of
Ultimate (the "Merger"), and each share of Audio King Common Stock will be
exchanged for either 0.7 shares of Ultimate common stock, $.01 par value per
share, or $1.75.
3. Under the Merger Agreement, it is a condition to Ultimate's
obligation to consummate the Merger that each Shareholder shall have executed
and delivered to Ultimate this Agreement.
NOW, THEREFORE, the parties hereto, in consideration of the mutual
representations, warranties, covenants, agreements, terms and conditions
contained herein and in the Merger Agreement, and intending to be legally
bound hereby, covenant and agree as follows:
1. SUPPORT FOR MERGER. Subject to Section 5.9 of the Merger
Agreement, each of the Shareholders individually covenants and agrees to
support the Merger, take all reasonable action to encourage the shareholders
of Audio King to vote in favor of the Merger, including without limitation,
recommending the Merger and soliciting proxies from shareholders, and to vote
all Voting Shares owned directly or indirectly by him (or with respect to
Voting Shares to which he has sole or shared dispositive power) FOR and in
favor of the Merger at any and all meetings of the shareholders of Audio King
at which the Merger is considered.
2. REVOCATION OF PROXIES; AGREEMENT TO VOTE. Each of the Shareholders
hereby revokes any and all previous proxies with respect to the Shares owned
by him and agrees not to grant any proxy to any person, other than with the
prior written consent of Ultimate. Effective upon the execution and delivery
of this Agreement, each such individual agrees to vote all Voting Shares at
any meeting of shareholders of Audio King, regular or special, or any
adjournment or adjournments thereof. This agreement to vote shall be deemed
irrevocable and coupled with an interest. This agreement to vote shall be
effective until the earlier of the Effective Time (as defined in the Merger
Agreement) or the termination of the Merger Agreement in accordance with its
terms.
3. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS. Each of the
Shareholders hereby represents and warrants to Ultimate, as to himself only,
as follows:
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(a) Except as set forth on Annex A, such Shareholder is the record
and beneficial owner of the Shares shown as owned by him on Annex A of this
Agreement, has good and marketable title to such Shares, has all necessary
power and authority to enter into this Agreement, and such Shares are free
and clear of any and all claims, liens, charges, encumbrances and security
interests other than as shown on Annex A. None of the Shares owned by him
are subject to any proxy, voting trust or other agreement or arrangement with
respect to the voting of such Shares, other than pursuant to this Agreement.
(b) This Agreement is the legal, valid and binding agreement of
such Shareholder, enforceable against him in accordance with its terms,
except as such validity, binding effect or enforceability may be limited by
bankruptcy, insolvency, or other similar laws relating to creditors' rights
generally and except that the availability of equitable remedies, including
specific performance, is subject to the discretion of the court before which
any proceeding therefor may be brought.
(c) The execution of this Agreement by such Shareholder does not,
and the performance by him of his obligations hereunder will not, constitute
a violation of, conflict with or result in a default under any contract,
commitment, agreement, understanding, arrangement, statute or restriction of
any kind to which he is a party or by which he or any of his property is
bound or any judgment, decree or order applicable to him.
(d) Neither the execution and delivery of this Agreement, nor the
performance by such Shareholder of his obligations hereunder will violate any
provision of law applicable to him, except for the requirements, if any, of
federal and state securities laws.
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(e) The Shares shown on said Annex A as owned by such Shareholder
are the only securities of Audio King owned by him, beneficially or of
record, other than options shown on Section 1.4(e) of the Company Disclosure
Letter (as defined in the Merger Agreement), and he owns no other options to
purchase or rights to subscribe for or otherwise acquire any securities of
Audio King.
4. COVENANT OF THE SHAREHOLDER. Each of the Shareholders hereby
covenants and agrees with Ultimate that until the Merger has been consummated
such Shareholder will not, without the prior written consent of Ultimate,
directly or indirectly, (i) grant any proxies or enter into any voting trust
or other agreement or arrangement with respect to the voting of any Shares,
(ii) acquire or sell, assign, transfer or otherwise dispose of any Shares,
(iii) enter into any contract, option or other arrangement or understanding
with respect to the direct or indirect acquisition or sale, assignment,
transfer or other disposition of any Shares, or (iv) subject to Section 5.9
of the Merger Agreement, directly or indirectly encourage, solicit, initiate
or participate in any way in discussions or negotiations with, or knowingly
provide any information to, any corporation, partnership, person or other
entity or group (other than Ultimate or any affiliate or associate of
Ultimate) concerning any transaction that is the subject of Section 5.9 of
the Merger Agreement.
5. REMEDIES. The parties hereto agree that if for any reason Ultimate or
any Shareholder or Shareholders shall have failed to perform its obligations
under this Agreement, then any party hereto seeking to enforce this Agreement
against such nonperforming party shall be entitled to specific performance and
injunctive and other equitable relief, and the
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parties hereto further agree to waive any requirement for the securing or
posting of any bond in connection with the obtaining of any such injunctive
or other equitable relief. This provision is without prejudice to any other
rights that either party hereto may have against the other party hereto for
any failure to perform its obligations under this Agreement. The failure by
any of the Shareholders to perform his obligations hereunder shall in no way
affect the obligation of the other Shareholders to perform their respective
obligations hereunder.
6. MISCELLANEOUS.
(a) ASSIGNMENT. Neither this Agreement nor the rights and
obligations hereunder shall be assignable by the parties hereto. This
Agreement shall be binding upon each of the Shareholders and such
Shareholder's heirs, distributees, successors and assigns by will or by the
laws of descent.
(b) AMENDMENTS. 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.
(c) TERMINATION. This Agreement shall terminate in its entirety
upon the earlier of the Effective Time (as defined in the Merger Agreement)
or the termination of the Merger Agreement in accordance with its terms.
(d) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE SUBSTANTIVE LAW OF THE STATE OF
DELAWARE WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
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(e) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
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Xx. Xxxxxx X. Xxxxxxx
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Xx. Xxxx X. Xxxxxx
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Xx. Xxxxx X. Xxxxxx
ULTIMATE ELECTRONICS, INC.
By:
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Name: Xxxx X. Xxxxxxx
Title: Vice President
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ANNEX A
PERCENTAGE PERCENTAGE
OF AUDIO KING OF AUDIO KING
COMMON VOTING COMMON
SHAREHOLDER SHARES STOCK SHARES STOCK
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Xxxxxx X. Xxxxxxx 292,603 (1) 10.5% 225,304 8.1%
Xxxx X. Xxxxxx 393,334 (2) 14.1% 302,867 10.8%
Xxxxx X. Xxxxxx 36,996 (3) 1.3% 28,486 1%
(1) Includes 15,000 shares held by the Xxxxxxx Family Foundation. Xx. Xxxxxxx,
in his capacity as a director of the Foundation, shares the voting and
dispositive power over the shares held by such Foundation.
(2) Represents 393,334 shares held of record by Okabena Partnership K, a
Minnesota partnership; Xx. Xxxxxx, in his capacity as Vice President of
Okabena Company, shares voting and dispositive power over such shares.
(3) Includes 6,996 shares held in the Audio King 401(k) Plan.
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