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EXHIBIT 4.2
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Voting Agreement") is made as of August 22,
1995, by and between XXXXXXX X. XXXXX ("Shareholder"), XXXXXXXX X. XXXXX and
AUTOMATIC DATA PROCESSING, INC., a Delaware corporation ("ADP").
RECITALS:
A. ADP, ADP Mergerco, Inc., a Michigan corporation and a wholly-owned
subsidiary of ADP ("Mergerco"), and Xxxxx Corporation, a Michigan corporation
(the "Company"), are concurrently herewith entering into an Agreement and Plan
of Merger, dated the date hereof (the "Merger Agreement"), which provides for
the merger of Mergerco with and into the Company (the "Merger").
B. Shareholder owns beneficially and of record 442,722 shares (the
"Aggregate Shares") of Company common stock, par value $.01 per share ("Xxxxx
Common Stock").
C. Shareholder is a party to a Shareholder Agreement dated November 4,
1985 executed by and among various shareholders of the Company (the
"Shareholder Agreement"), which provides that Shareholder, as the
Representative (as such term is defined in the Shareholder Agreement), has the
sole right until November 26, 1995 to direct the vote or written consent of a
portion of the Aggregate Shares (the "Owned Shares") and 584,548 shares of
Xxxxx Common Stock owned by others, 20,000 shares of which are covered by stock
options (all of such shares are referred to herein collectively, as the
"Controlled Shares"), on all matters presented for action to the Company's
shareholders.
D. To induce ADP and Mergerco to enter into the Merger Agreement,
Shareholder is willing to enter into this Voting Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
1. Agreement to Vote.
(a) Subject to all of the terms and conditions set forth in this Voting
Agreement, to induce ADP and Mergerco to enter into the Merger Agreement,
Shareholder hereby irrevocably agrees to vote on and after the date hereof the
Owned Shares and all of the Controlled Shares which he has the right and
authority as the Representative to vote under the Shareholder Agreement, if
any, and any and all securities issued or issuable in respect thereof (all of
such shares are referred to collectively herein as the "Voting Shares"), in
favor of adopting the Merger Agreement (and the related Plan of Merger) and
approving the Merger at any meeting of the Company's shareholders (including
adjournments thereof) or by written consent.
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(b) If after the execution of this Voting Agreement Shareholder shall
die or become incapacitated, cease to have appropriate power or authority, or
if any other such event or events shall occur, this Voting Agreement shall be
binding upon Xxxxxxxx X. Xxxxx, as successor representative under the
Shareholder Agreement.
2. Representations and Warranties of Shareholder. Shareholder hereby
represents and warrants to ADP as follows:
(a) Due Authorization. Shareholder has full legal power to enter into
this Voting Agreement and perform his obligations hereunder. This Voting
Agreement has been duly executed and delivered by Shareholder and constitutes
the valid and binding obligation of Shareholder enforceable against Shareholder
in accordance with its terms.
(b) Conflicting Instruments. The execution and delivery of this Voting
Agreement by Shareholder does not, and the performance of this Voting Agreement
by Shareholder will not, (i) require the consent, waiver, approval or license or
authorization of or any filing with any person or public authority or (ii) with
or without the giving of notice or the lapse of time, or both, conflict with or
result in a breach of any terms or provisions of, or result in the creation or
imposition of any lien, claim, charge or encumbrance upon any of the Voting
Shares under, any agreement or other instrument to which Shareholder is a party
or by which any of Shareholder's property is bound (including, without
limitation, the Shareholder Agreement) or any existing applicable law, rule,
regulation, judgment, decree or order of any governmental instrumentality, court
or administrative body having jurisdiction over Shareholder or any of
Shareholder's property.
(c) Ownership. Except as provided in the Shareholder Agreement or this
Voting Agreement, (i) Shareholder is the record and beneficial owner of the
Owned Shares with sole power to direct the voting and disposition of such
shares, and (ii) the Owned Shares are owned by Shareholder free and clear of
all security interests, liens, claims, encumbrances, charges, restrictions on
transfer, proxies and voting and other agreements.
(d) Shareholder Agreement. Shareholder (i) is presently the
Representative under the Shareholder Agreement, and (ii) has taken no action to
terminate the Shareholder Agreement, make the Shareholder Agreement
unenforceable or otherwise diminish his right and authority as the
Representative to vote the Controlled Shares.
3. Representations and Warranties of ADP. ADP hereby represents and
warrants to Shareholder as follows:
(a) Due Authorization. ADP has full legal power to enter into this
Voting Agreement. This Voting Agreement has been duly executed and delivered by
ADP and constitutes the valid and binding obligation of ADP enforceable against
ADP in accordance with its terms.
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(b) Judgments, Decrees, etc. As of the date hereof, ADP is not
aware of any judgment, decree, injunction, ruling or order of any court,
governmental department, commission, agency or instrumentality outstanding
against Mergerco or ADP which would prohibit or materially restrict or delay the
consummation of the Merger.
(c) Reorganization. As of the date hereof, ADP is not aware of any
facts or circumstances that would suggest that the Merger would not qualify for
federal income tax purposes as a reorganization within the meaning of Section
368 of the Internal Revenue Code of 1986, as amended.
(d) Pooling. As of the date hereof, ADP is not aware of any facts
or circumstances that would suggest that the Merger may not be properly
accounted for as a pooling of interests.
4. Conditions to Obligations. Notwithstanding any other
provision in this Voting Agreement to the contrary, the obligations and
undertakings of Shareholder and Xxxxxxxx X. Xxxxx under this Voting Agreement
are hereby subject to the fulfillment of the following condition:
(a) Pooling. ADP shall have received evidence from Deloitte &
Touche, LLP, in form and substance reasonably satisfactory to ADP, that the
Merger may properly be accounted for as a pooling of interests.
5. Adjustments. If the number of issued and outstanding shares of
Xxxxx Common Stock is increased, decreased or changed by reason of stock
dividends, split-ups, recapitalizations, combinations, conversions, exchanges
of shares or the like, the number and kind of Voting Shares subject to this
Voting Agreement shall be adjusted appropriately.
6. Covenants of Shareholder. Shareholder hereby covenants and
agrees that neither he nor Xxxxxxxx X. Xxxxx, his wife, shall, without the
prior written consent of ADP, directly or indirectly:
(i) sell, assign, pledge, grant any option or proxy with
respect to, or otherwise transfer or dispose of any of, or enter into
any voting or other agreements with respect to, the Voting Shares, or
deposit the Voting Shares in a voting trust, or take or omit to take or
permit any action which would or might result in any of the foregoing or
otherwise prevent or disable Shareholder from performing his obligations
hereunder; provided, however, that Shareholder may sell, transfer or
dispose of, or permit the sale, transfer or disposition of, the Voting
Shares to a third party who agrees in writing to be bound by the terms
and conditions of this Voting Agreement; or
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(ii) vote the Voting Shares on any matter referred to in
Section 1(a) hereof in a manner inconsistent with this Voting Agreement.
7. Expiration. This Voting Agreement shall expire at the earlier of (i)
the Effective Time (as defined in the Merger Agreement) and (ii) one business
day following the date of termination of the Merger Agreement in accordance
with the terms thereof; provided, however, that notwithstanding anything to the
contrary contained herein, with respect to those Voting Shares other than the
Owned Shares only, this Voting Agreement shall expire at the earlier of (i)
the Effective Time, (ii) one business day following the date of termination of
the Merger Agreement in accordance with the terms thereof and (iii) the date of
the expiration or termination of the Shareholder Agreement.
8. Miscellaneous.
(a) Severability. If any term, provision, covenant or restriction of
this Voting Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Voting Agreement shall remain in full force
and effect and shall in no way be affected, impaired or invalidated.
(b) Assignment. This Voting Agreement shall survive the death or
incapacity of Shareholder and shall be binding upon and inure to the benefit of
the parties hereto. Neither this Voting Agreement nor any rights hereunder
shall be assigned by any party hereto without the prior written consent of the
other parties hereto, except that ADP may assign its rights to a direct or
indirect subsidiary at least 50% owned by ADP (in which case all references to
ADP shall be deemed to mean such subsidiary).
(c) Amendments. This Voting Agreement may not be modified, amended,
altered or supplemented except upon the execution and delivery of a written
agreement executed by ADP and Shareholder.
(d) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by delivery in person or by
certified or registered mail (postage prepaid, return receipt requested) to the
respective parties as follows:
If to Shareholder:
Xxxxxxx X. Xxxxx
000 Xxxxxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
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With a copy to:
Jaffe, Raitt, Heuer & Xxxxx
Professional Corporation
Xxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxx X. Xxxxx, Esq.
If to ADP:
Automatic Data Processing, Inc.
Xxx XXX Xxxxxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attn: General Counsel
or to such other address as any party may have furnished to the other in
writing in accordance herewith.
(e) Governing Law. This Voting Agreement shall be governed by and
construed in accordance with the laws of the State of Michigan.
(f) Counterparts. This Voting 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.
(g) Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction hereof.
(h) Specific Performance. Shareholder acknowledges that performance
of its obligations hereunder will confer a unique benefit on ADP and,
accordingly, that a failure of performance by Shareholder is not compensable by
money damages.
IN WITNESS WHEREOF, the parties hereto have caused this Voting
Agreement to be duly executed as of the day and year first above written.
AUTOMATIC DATA PROCESSING, INC.
By: /s/ Xxxxx X. Xxxxxx
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Title: Corporate Vice President
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/s/ Xxxxxxx X. Xxxxx
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XXXXXXX X. XXXXX
/s/ Xxxxxxxx X. Xxxxx
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XXXXXXXX X. XXXXX
The Xxxxx Corporation hereby acknowledges the existence of this Voting
Agreement and agrees to act in accordance herewith.
XXXXX CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Title: President
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