SHAREHOLDER AGREEMENT
This SHAREHOLDER AGREEMENT (this "AGREEMENT") is made and entered
into as of November 17, 1999 between Xxxxxx International Inc., a Delaware
corporation ("PARENT"), and the undersigned shareholders (each, a "SHAREHOLDER")
of North American Vaccine, Inc., a corporation existing under the federal laws
of Canada ("COMPANY"). Capitalized terms used and not otherwise defined herein
shall have the respective meanings set forth in the Share Exchange Agreement
described below.
RECITALS
WHEREAS, pursuant to a Share Exchange Agreement dated as of November
17, 1999 by and among Parent, Neptune Acquisition Corp., an unlimited liability
company existing under the laws of the Province of Nova Scotia and a wholly
owned subsidiary of Parent ("ACQUIRECO") and Company (such agreement as it may
be amended is hereinafter referred to as the "SHARE EXCHANGE AGREEMENT"), Parent
has agreed to exchange the outstanding securities of Company pursuant to an
exchange by Acquireco of all of the capital stock of the Company (the
"ARRANGEMENT"), in which each outstanding share of capital stock of Company (the
"COMPANY SHARES") will be exchanged for cash and shares of common stock of
Parent (the "PARENT SHARES") as set forth in the Share Exchange Agreement (the
"TRANSACTION");
WHEREAS, BioChem Pharma Inc. ("BioChem") (formerly known as IAF
BioChem International Inc.), Frost-Nevada, Limited Partnership ("Xxxxx XX"),
IVAX Corporation ("IVAX"), and Xxxxxxx Xxxxx, M.D. ("Frost") are parties to a
Shareholders' Agreement dated January 17, 1990 (the "Existing Agreement");
WHEREAS, in order to induce Parent to enter into the Share Exchange
Agreement and consummate the Transaction, Company has agreed to use its
reasonable efforts to cause each shareholder of Company who is an affiliate of
Company to execute and deliver to Parent a Shareholder Agreement upon the terms
set forth herein; and
WHEREAS, each Shareholder is or may become the registered and
beneficial owner (within the meaning of Rule 13d-3 of the Exchange Act) of
capital stock of Company (such shares, other than 714,286 Company Shares owned
by BioChem which are to be transferred to Parent pursuant to the Stock Purchase
Agreement dated the date hereof, hereinafter referred to as the "SHARES").
NOW, THEREFORE, the parties agree as follows:
1. TRANSFER AND ENCUMBRANCE. Each Shareholder represents, warrants
and covenants to and with Parent that such Shareholder is the beneficial owner
of the Shares, the Shares constitute the only shares of capital stock and voting
securities of Company beneficially owned by such Shareholder, to such
Shareholder's knowledge, the Shares are, and will be at all times up until the
Expiration Date (as defined in Exhibit I hereto), free and clear of any liens,
claims, options, charges or other encumbrances except as disclosed on the
signature page hereto and shareholder's principal residence or place of business
is accurately set forth on the signature page hereto.
2. NEW SHARES. Each Shareholder agrees that any shares of capital
stock or voting securities of Company that such Shareholder purchases or with
respect to which such Shareholder otherwise acquires beneficial ownership after
the date of this Agreement and prior to the Expiration Date ("NEW SHARES") shall
be subject to the terms and conditions of this Agreement to the same extent as
if they constituted Shares.
3. AGREEMENT TO VOTE SHARES. Prior to the Expiration Date, at every
meeting of the shareholders of Company at which any of the following is
considered or voted upon, and at every adjournment thereof, and on every action
or approval by written resolution of the shareholders of Company with respect to
any of the following, each Shareholder shall vote the Shares and any New Shares
in favor of approval and adoption of the Arrangement Resolution (as defined in
the Share Exchange Agreement) and of the Transaction.
4. IRREVOCABLE PROXY. Each Shareholder hereby agrees to timely
deliver to Parent a duly executed proxy in the form attached hereto as Exhibit I
(the "PROXY"), such Proxy to cover the Shares and all New Shares in respect of
which such Shareholder is entitled to vote at each meeting of the shareholders
of Company (including, without limitation, each written consent in lieu of a
meeting). In the event that a Shareholder is unable to provide any such Proxy in
a timely manner, each Shareholder hereby grants Parent a power of attorney to
execute and deliver such Proxy for and on behalf of such Shareholder, such power
of attorney, which being coupled with an interest, shall survive any death,
disability, bankruptcy, or any other such impediment of such Shareholder. Upon
the execution of this Agreement by such Shareholder, such Shareholder hereby
revokes any and all prior proxies or powers of attorney given by such
Shareholder with respect to the Shares and agrees not to grant any subsequent
proxies or powers of attorney with respect to the Shares until after the
Expiration Date.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SHAREHOLDER. Each
Shareholder hereby represents, warrants and covenants to Parent as follows:
(a) Such Shareholder has full power and legal capacity to execute
and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by such Shareholder and constitutes the valid
and binding obligation of such Shareholder, enforceable against such Shareholder
in accordance with its terms except as may be limited by (i) the effect of
bankruptcy, insolvency, conservatorship, arrangement, moratorium or other laws
affecting or relating to the rights of creditors generally, or (ii) the rules
governing the availability of specific performance, injunctive relief or other
equitable remedies and general principles of equity, regardless of whether
2
considered in a proceeding in equity or at law. To such Shareholder's knowledge,
the execution and delivery of this Agreement by such Shareholder does not, and
the performance of such Shareholder's obligations hereunder will not, result in
any breach of or constitute a default (or an event that with notice or lapse of
time or both would become a default) under, or give to others any right to
terminate, amend, accelerate or cancel any right or obligation under, or result
in the creation of any lien or encumbrance on any Shares or New Shares pursuant
to, any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which such Shareholder is
a party or by which such Shareholder or the Shares or New Shares are or will be
bound or affected.
(b) Until the Expiration Date, such Shareholder will not (and will
use such Shareholder's reasonable efforts to cause Company, its affiliates,
officers, directors and employees and any investment banker, attorney,
accountant or other agent retained by such Shareholder, Company or any of the
same, not to, except to the extent otherwise permitted under Section 6.04 of the
Share Exchange Agreement): (i) solicit, initiate or encourage (including by way
of furnishing or disclosing nonpublic information) any inquiries or the making
of any proposal or offer (including, without limitation, any proposal or offer
to any shareholders of the Company) that constitutes, or may reasonably be
expected to lead to, any Company Competing Transaction; or (ii) knowingly
encourage or otherwise enter into or maintain or continue discussions or
negotiate with any Person with respect to such inquiries or to obtain a Company
Competing Transaction, or agree to or endorse any agreement, arrangement or
understanding with respect to any Company Competing Transaction. In the event
such Shareholder shall receive or become aware of any Company Competing
Transaction subsequent to the date hereof, such Shareholder shall promptly
inform Parent as to any such matter and the details thereof to the extent
possible without breaching any other agreement to which such Shareholder is a
party or violating its fiduciary duties. Notwithstanding the foregoing, the
provisions of this Section 5(b) shall not be operative for any non-executive
director of Company for so long as such director serves on Company's board of
directors.
(c) Such Shareholder understands and agrees that if such Shareholder
attempts to transfer, vote or provide any other person with the authority to
vote any of the Shares other than in compliance with this Agreement, Company
shall not, and such Shareholder hereby unconditionally and irrevocably instructs
Company to not, permit any such transfer on its books and records, issue a new
certificate representing any of the Shares or record such vote unless and until
Shareholder shall have complied with the terms of this Agreement.
6. ADDITIONAL DOCUMENTS. Each Shareholder hereby covenants and
agrees to execute and deliver any additional documents necessary or desirable,
reasonably necessary and desirable, to carry out the purpose and intent of this
Agreement.
7. TERMINATION. This Agreement and the Proxy delivered in connection
herewith shall terminate and shall have no further force or effect as of the
Expiration Date.
3
8. 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.
9. 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 the prior written consent of the other. This Agreement is
intended to bind each Shareholder solely as a securityholder of Company only
with respect to the specific matters set forth herein.
10. AMENDMENT AND MODIFICATION. This Agreement may not be modified,
amended, altered or supplemented except by the execution and delivery of a
written agreement executed by the parties hereto.
11. SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The parties hereto
acknowledge that Parent 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
the Shareholders set forth herein. Therefore, it is agreed that, in addition to
any other remedies that may be available to Parent upon any such violation,
Parent shall have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available to Parent at law
or in equity and each Shareholder hereby waives any and all defenses which could
exist in its favor in connection with such enforcement and waives any
requirement for the security or posting of any bond in connection with such
enforcement.
12. NOTICES. All notices, requests, demands or other communications
that are required or may be given pursuant to the terms of this Agreement shall
be in writing and shall be deemed to have been duly given if delivered by hand
or mailed by registered or certified mail, postage prepaid, or sent by facsimile
transmission, as follows:
(a) If to a Shareholder, at the address set forth below such
Shareholder's signature at the end hereof.
(b) if to Parent, to:
Xxxxxx International Inc.
Xxx Xxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxxxx, 00xx Xxxxx
0
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
or to such other address as any party hereto may designate for itself by notice
given as herein provided.
13. GOVERNING LAW. This Agreement shall be governed by, construed
and enforced in accordance with the internal laws of the State of New York
without giving effect to the principles of conflicts of law thereof.
14. ENTIRE AGREEMENT. This Agreement and the Proxy contain the
entire understanding of the parties in respect of the subject matter hereof, and
supersede all prior negotiations and understandings between the parties with
respect to such subject matter.
15. COUNTERPART. 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.
16. EFFECT OF HEADINGS. The section headings herein are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
17. SUSPENSION OF EXISTING AGREEMENT. By virtue of and evidenced by
the execution of this Agreement, BioChem, Xxxxx XX, IVAX and Frost
(collectively, the "Parties") hereby agree to suspend the Existing Agreement
until the Expiration Date, as defined in the Proxy.
18. TERMINATION OF EXISTING AGREEMENT. By virtue of and evidenced by
the execution of this Agreement, the Parties hereby agree that the Existing
Agreement will terminate on the Effective Date.
19. COMPANY INDEBTEDNESS. No later than ten (10) days after the
Effective Date (provided that Company shall have received the requisite
documentation from holders of the promissory notes described below), Parent and
Company shall purchase the Company's outstanding 4.5% Convertible Secured Notes
due November 13, 2003 pursuant to the terms of the Indenture dated as of
November 12, 1998 between Company and Bankers Trust Company, as Trustee.
20. CONSENT TO ASSIGNMENT. By virtue of and evidenced by the
execution of this Agreement, BioChem hereby consents to the assignment from
Company to Parent, or any subsidiary of Parent, of the surviving rights under
the Technology Transfer Agreement dated January 17, 1990 between BioChem and
Company, which agreement has been terminated, in connection with the
transactions contemplated by the Share Exchange Agreement and effective as of
the Effective Date.
5
21. GUARANTY. Parent and the Company will use their respective
commercially reasonable efforts to obtain an extension to the maturity of
indebtedness under the Company's line of credit with Royal Bank of Canada (the
"Line of Credit"). BioChem hereby agrees (i) to maintain in effect and not to
terminate in any respect the Guaranty Agreement dated July 1, 0000 xxxxxxx
XxxXxxx xxx Xxxxx Xxxx xx Xxxxxx until the Effective Date, as defined in the
Proxy, and (ii) to loan to the Company any amounts due under the Line of Credit,
up to an aggregate of $5,000,000, on commercially reasonable terms in the event
the amounts payable under the Line of Credit become due prior to the Effective
Date, as defined in the Proxy. On or promptly after the Effective Date, Parent
and the Company shall (i) terminate the Line of Credit and pay off the amounts
due thereunder, and (ii) repay to BioChem all amounts outstanding under the
Guaranty, the related Suretyship and Subordination of Claims dated as of July 1,
1999 executed by BioChem and BioChem Pharma Holdings Inc. (the "Suretyship") and
any modifications, amendments or extensions of the Guaranty or Suretyship,
together with any accrued interest. Parent hereby indemnifies and holds harmless
BioChem and its officers, directors, affiliates, divisions, subsidiaries,
employees, representatives and agents from and against any judgments, fines,
losses, claims, damages, costs, expenses (including reasonable attorney's fees)
or liabilities arising out of the Guaranty or Suretyship (in each case,
including such modifications, amendments or extensions) or the obligations
thereunder.
IN WITNESS WHEREOF, the parties have caused this Shareholder
Agreement to be executed as of the date first above written.
6
XXXXXX INTERNATIONAL INC. BIOCHEM PHARMA INC.
By:/s/ Xxxxxx Xxxxxxxxx By:/s/ Xxxxxxxxx Xxxxxxx
------------------------------ ---------------------------------
Name: Xxxxxx Xxxxxxxxx Name: Xxxxxxxxx Xxxxxxx
Title: President, Xxxxxx Immuno Title: Chief Executive Officer
Division
By:/s/ Xxxxxxx-X. Xxxxxxx
---------------------------------
Name: Xxxxxxx-X. Xxxxxxx
Title: Vice-President, Legal Affairs
and General Counsel
SHAREHOLDER
By: /s/ Xxxxxxx Xxxxx
---------------------------------
Xxxxxxx Xxxxx
-------------------------------------
(Signature of Spouse)
Xxxxxxx Xxxxx M.D.
-------------------------------------
(Print Name of Shareholder)
0000 Xxxxxxxx Xxxx.
-------------------------------------
(Print Street Address)
Xxxxx, Xxxxxxx 00000
-------------------------------------
(Print City, State and Zip)
(000) 000-0000
-------------------------------------
(Print Telephone Number)
###-##-####
-------------------------------------
(Social Security or Tax I.D. Number)
SHAREHOLDER
IVAX CORPORATION
By: /s/ Xxxxxxx Xxxxx
------------------------------
Name: Xxxxxxx Xxxxx
Title: CEO and Chairman
N/A
------------------------------------
(Signature of Spouse)
N/A
------------------------------------
(Print Name of Shareholder)
0000 Xxxxxxxx Xxxx.
------------------------------------
(Print Street Address)
Xxxxx, Xxxxxxx 00000
------------------------------------
(Print City, State and Zip)
(000) 000-0000
------------------------------------
(Print Telephone Number)
00-0000000
------------------------------------
(Social Security or Tax I.D. Number)
SHAREHOLDER
FROST-NEVADA, LIMITED PARTNERSHIP
By: /s/ Xxxxx Xxxxxxxxx
--------------------------------------
Name: XXXXX XXXXXXXXX
--------------------------------------
Title: PRESIDENT OF FROST NEVADA CORPORATION,
--------------------------------------
GENERAL PARTNER OF FROST-NEVADA
LIMITED PARTNERSHIP
N/A
-------------------------------------
(Signature of Spouse)
N/A
-------------------------------------
(Print Name of Shareholder)
0000 XXXXXXXX XXXXX, XXX. 000
-------------------------------------
(Print Street Address)
XXXX, XXXXXX 00000
-------------------------------------
(Print City, State and Zip)
(000) 000-0000
-------------------------------------
(Print Telephone Number)
00-0000000
-------------------------------------
(Social Security or Tax I.D. Number)
EXHIBIT I
---------
IRREVOCABLE PROXY
TO VOTE SHARES OF
NORTH AMERICAN VACCINE, INC.
The undersigned shareholder of North American Vaccine, Inc., a
corporation existing under the federal laws of Canada ("COMPANY"), hereby
irrevocably (to the full extent permitted by the Canada Business Corporations
Act) appoints the members of the Board of Directors of Xxxxxx International
Inc., a Delaware corporation ("PARENT"), and each of them, or any other designee
of Parent, as the sole and exclusive attorneys and proxies of the undersigned,
with full power of substitution and resubstitution, to attend and act for and on
behalf of the undersigned at all meetings of shareholders of Company held prior
to the Expiration Date and, without limiting the generality of the foregoing, to
vote and exercise all voting and related rights (to the full extent that the
undersigned is entitled to do so) with respect to all of the shares of capital
stock of Company that now are or hereafter may be beneficially owned by the
undersigned, and any and all other shares or securities of Company issued or
issuable in respect thereof on or after the date hereof (collectively, the
"SHARES") in accordance with the terms of this Irrevocable Proxy. Upon the
undersigned's execution of this Irrevocable Proxy, any and all prior proxies
given by the undersigned with respect to any Shares are hereby revoked and the
undersigned agrees not to grant any subsequent proxies with respect to the
Shares until after the Expiration Date (as defined below).
This Irrevocable Proxy is irrevocable (to the extent provided in the
Canada Business Corporations Act), is coupled with an interest, including, but
not limited to, that certain Affiliate Letter dated as of even date herewith by
and among Parent, and the undersigned, and is granted in consideration of Parent
entering into that certain Share Exchange Agreement (the "SHARE EXCHANGE
AGREEMENT") by and among Parent, Neptune Acquisition Corp., an unlimited
liability company existing under the laws of the Province of Nova Scotia and a
wholly owned subsidiary of Parent ("ACQUIRECO"), and Company which Share
Exchange Agreement provides for exchange of all of the issued and outstanding
capital stock of Company in exchange for shares of Parent and cash held by
Acquireco (the "ARRANGEMENT"). As used herein, the term "Expiration Date" shall
mean the earliest to occur of (i) such date and time as the Arrangement shall
become effective in accordance with the terms and provisions of the Share
Exchange Agreement, (ii) the date of termination of the Share Exchange
Agreement, (iii) a material breach by Parent of any agreement with the
undersigned shareholder, and (iv) May 31, 2000.
The attorneys and proxies named above, and each of them are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting and other similar rights of the undersigned with respect to
the Shares (including, without limitation, the power to execute and deliver
written consents pursuant to the Canada Business Corporations Act) to the same
extent and with the same power as if the undersigned were personally present at
such meeting, at every annual, special or adjourned meeting of the shareholders
of Company and in every written consent in lieu of such meeting in favor of
approval and adoption of the Arrangement Resolution (as defined in the Share
Exchange Agreement), the Share Exchange Agreement and of the transactions
contemplated thereby.
The attorneys and proxies named above may not exercise this
Irrevocable Proxy on any other matter except as provided above. The undersigned
shareholder may vote the Shares on all other matters.
All authority herein conferred shall survive the death or incapacity
of the undersigned and any obligation of the undersigned hereunder shall be
binding upon the heirs, personal representatives, successors and assigns of the
undersigned.
This Irrevocable Proxy is coupled with an interest as aforesaid and
is irrevocable.
Dated: November 17, 1999 BioChem Pharma Inc.
By: /s/ Xxxxxxxxx Xxxxxxx
-----------------------------
By: Xxxxxxxxx Xxxxxxx
Title: Chief Executive Officer
By: /s/ Xxxxxxx-X. Xxxxxxx
-----------------------------
By: Xxxxxxx-X. Xxxxxxx
Title: Vice-President, Legal Affairs
and General Counsel
Shares beneficially owned:
10,464,828 shares of Company
Common Shares
2
EXHIBIT I
---------
IRREVOCABLE PROXY
TO VOTE SHARES OF
NORTH AMERICAN VACCINE, INC.
The undersigned shareholder of North American Vaccine, Inc., a
corporation existing under the federal laws of Canada ("COMPANY"), hereby
irrevocably (to the full extent permitted by the Canada Business Corporations
Act) appoints the members of the Board of Directors of Xxxxxx International
Inc., a Delaware corporation ("PARENT"), and each of them, or any other designee
of Parent, as the sole and exclusive attorneys and proxies of the undersigned,
with full power of substitution and resubstitution, to attend and act for and on
behalf of the undersigned at all meetings of shareholders of Company held prior
to the Expiration Date and, without limiting the generality of the foregoing, to
vote and exercise all voting and related rights (to the full extent that the
undersigned is entitled to do so) with respect to all of the shares of capital
stock of Company that now are or hereafter may be beneficially owned by the
undersigned, and any and all other shares or securities of Company issued or
issuable in respect thereof on or after the date hereof (collectively, the
"SHARES") in accordance with the terms of this Irrevocable Proxy. Upon the
undersigned's execution of this Irrevocable Proxy, any and all prior proxies
given by the undersigned with respect to any Shares are hereby revoked and the
undersigned agrees not to grant any subsequent proxies with respect to the
Shares until after the Expiration Date (as defined below).
This Irrevocable Proxy is irrevocable (to the extent provided in the
Canada Business Corporations Act), is coupled with an interest, including, but
not limited to, that certain Affiliate Letter dated as of even date herewith by
and among Parent, and the undersigned, and is granted in consideration of Parent
entering into that certain Share Exchange Agreement (the "SHARE EXCHANGE
AGREEMENT") by and among Parent, Neptune Acquisition Corp., an unlimited
liability company existing under the laws of the Province of Nova Scotia and a
wholly owned subsidiary of Parent ("ACQUIRECO"), and Company which Share
Exchange Agreement provides for exchange of all of the issued and outstanding
capital stock of Company in exchange for shares of Parent and cash held by
Acquireco (the "ARRANGEMENT"). As used herein, the term "Expiration Date" shall
mean the earliest to occur of (i) such date and time as the Arrangement shall
become effective in accordance with the terms and provisions of the Share
Exchange Agreement, (ii) the date of termination of the Share Exchange
Agreement, (iii) a material breach by Parent of any agreement with the
undersigned shareholder, and (iv) May 31, 2000.
The attorneys and proxies named above, and each of them are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting and other similar rights of the undersigned with respect to
the Shares (including, without limitation, the power to execute and deliver
written consents pursuant to the Canada Business Corporations Act) to the same
extent and with the same power as if the undersigned were personally present at
such meeting, at every annual, special or adjourned meeting of the shareholders
of Company and in every written consent in lieu of such meeting in favor of
approval and adoption of the Arrangement Resolution (as defined in the Share
Exchange Agreement), the Share Exchange Agreement and of the transactions
contemplated thereby.
The attorneys and proxies named above may not exercise this
Irrevocable Proxy on any other matter except as provided above. The undersigned
shareholder may vote the Shares on all other matters.
All authority herein conferred shall survive the death or incapacity
of the undersigned and any obligation of the undersigned hereunder shall be
binding upon the heirs, personal representatives, successors and assigns of the
undersigned.
This Irrevocable Proxy is coupled with an interest as aforesaid and
is irrevocable.
Dated: November 17, 1999
By: /s/ Xxxxxxx Xxxxx
--------------------------------
(Signature of Shareholder)
Xxxxxxx Xxxxx, M.D.
--------------------------------
(Print Name of Shareholder)
Shares beneficially owned:
2,017,418 shares of Company Common Shares
---------
2
EXHIBIT I
---------
IRREVOCABLE PROXY
TO VOTE SHARES OF
NORTH AMERICAN VACCINE, INC.
The undersigned shareholder of North American Vaccine, Inc., a
corporation existing under the federal laws of Canada ("COMPANY"), hereby
irrevocably (to the full extent permitted by the Canada Business Corporations
Act) appoints the members of the Board of Directors of Xxxxxx International
Inc., a Delaware corporation ("PARENT"), and each of them, or any other designee
of Parent, as the sole and exclusive attorneys and proxies of the undersigned,
with full power of substitution and resubstitution, to attend and act for and on
behalf of the undersigned at all meetings of shareholders of Company held prior
to the Expiration Date and, without limiting the generality of the foregoing, to
vote and exercise all voting and related rights (to the full extent that the
undersigned is entitled to do so) with respect to all of the shares of capital
stock of Company that now are or hereafter may be beneficially owned by the
undersigned, and any and all other shares or securities of Company issued or
issuable in respect thereof on or after the date hereof (collectively, the
"SHARES") in accordance with the terms of this Irrevocable Proxy. Upon the
undersigned's execution of this Irrevocable Proxy, any and all prior proxies
given by the undersigned with respect to any Shares are hereby revoked and the
undersigned agrees not to grant any subsequent proxies with respect to the
Shares until after the Expiration Date (as defined below).
This Irrevocable Proxy is irrevocable (to the extent provided in the
Canada Business Corporations Act), is coupled with an interest, including, but
not limited to, that certain Affiliate Letter dated as of even date herewith by
and among Parent, and the undersigned, and is granted in consideration of Parent
entering into that certain Share Exchange Agreement (the "SHARE EXCHANGE
AGREEMENT") by and among Parent, Neptune Acquisition Corp., an unlimited
liability company existing under the laws of the Province of Nova Scotia and a
wholly owned subsidiary of Parent ("ACQUIRECO"), and Company which Share
Exchange Agreement provides for exchange of all of the issued and outstanding
capital stock of Company in exchange for shares of Parent and cash held by
Acquireco (the "ARRANGEMENT"). As used herein, the term "Expiration Date" shall
mean the earliest to occur of (i) such date and time as the Arrangement shall
become effective in accordance with the terms and provisions of the Share
Exchange Agreement, (ii) the date of termination of the Share Exchange
Agreement, (iii) a material breach by Parent of any agreement with the
undersigned shareholder, and (iv) May 31, 2000.
The attorneys and proxies named above, and each of them are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting and other similar rights of the undersigned with respect to
the Shares (including, without limitation, the power to execute and deliver
written consents pursuant to the Canada Business Corporations Act) to the same
extent and with the same power as if the undersigned were personally present at
such meeting, at every annual, special or adjourned meeting of the shareholders
of Company and in every written consent in lieu of such meeting in favor of
approval and adoption of the Arrangement Resolution (as defined in the Share
Exchange Agreement), the Share Exchange Agreement and of the transactions
contemplated thereby.
The attorneys and proxies named above may not exercise this
Irrevocable Proxy on any other matter except as provided above. The undersigned
shareholder may vote the Shares on all other matters.
All authority herein conferred shall survive the death or incapacity
of the undersigned and any obligation of the undersigned hereunder shall be
binding upon the heirs, personal representatives, successors and assigns of the
undersigned.
This Irrevocable Proxy is coupled with an interest as aforesaid and
is irrevocable.
Dated: November 17, 1999 FROST-NEVADA, LIMITED PARTNERSHIP
By:/s/ Xxxxx X. Xxxxxxxxx
-------------------------------------
Name: XXXXX XXXXXXXXX
-------------------------------------
Title: PRESIDENT OF FROST NEVADA CORPORATION,
GENERAL PARTNER OF FROST-NEVADA LIMITED
PARTNERSHIP
---------------------------------------
(Print Name of Shareholders)
Shares beneficially owned:
1,767,859 shares of Company Common Shares
---------
2
