EXHIBIT 4
VOTING AGREEMENT AND IRREVOCABLE PROXY
In consideration of Viking Merger Sub, Inc., a Minnesota corporation
("MergerSub") and Xxxxxxx Corporation, a Minnesota corporation (the "Company"),
entering into an Agreement and Plan of Merger dated as of the date hereof (the
"Merger Agreement") which provides, among other things, that MergerSub, upon the
terms and subject to the conditions thereof, will be merged with and into the
Company (the "Merger") and each outstanding share of common stock, $0.01 par
value, of the Company (the "Company Common Stock") will be converted into the
right to receive the Common Stock Consideration (as defined in the Merger
Agreement) in accordance with the terms of such Agreement, the undersigned
holders (the "Stockholders") of shares of Company Common Stock, some of which
are to be exchanged for an equal number of shares of Class B Common Stock (as
defined in the Merger Agreement) as further described below (the "Exchange"),
agree with MergerSub as follows:
1. During the period (the "Agreement Period") beginning on the date
hereof and ending on the earlier of (i) the time which is immediately prior to
the Effective Time (as defined in the Merger Agreement) or (ii) the termination
of the Merger Agreement in accordance with its terms, the Stockholders hereby
agree not to sell, transfer, assign, encumber or otherwise dispose of any shares
of Company Common Stock set forth in Schedule A attached hereto, or upon the
Exchange, the shares of Class B Common Stock received in the Exchange, or, upon
the exercise of any of the Schedule A Options (as defined below), the shares
received as a result of such exercise (collectively, the "Schedule A Shares") or
any of the options over shares of Company Common Stock set forth in Schedule A
(collectively, the "Schedule A Options" and together with the Schedule A Shares,
the "Schedule A Securities") or enter into any contract, option or other
arrangement or understanding with respect to the direct or indirect sale,
assignment, transfer, encumbrance or other disposition of any of the Schedule A
Securities. Notwithstanding the foregoing, any Stockholder may at any time
during the five days prior to the Company Stockholder Meeting (as defined in the
Merger Agreement) transfer up to 10% of his Schedule A Securities to any
charitable organization. It is acknowledged that at or immediately prior to the
Effective Time the Schedule A Options will be treated in accordance with the
terms of Section 1.05 of the Merger Agreement and those Schedule A Shares that
are not exchanged for Class B Common Stock in accordance with Section 5.08 of
the Merger Agreement will be treated in accordance with Section 1.02(f) of the
Merger Agreement.
2. During the Agreement Period, the Stockholders hereby agree to vote
the Schedule A Shares to approve and adopt the Merger Agreement and the Charter
Amendment, the Merger and all agreements related to the Merger and any actions
Page 137 of 142
related thereto at any meeting or meetings of the stockholders of the Company,
and at any adjournment thereof or pursuant to action by written consent, at or
by which such Merger Agreement or Charter Amendment and other related agreements
(or any amended version or versions thereof), or such other actions, are
submitted for the consideration and vote of the stockholders of the Company.
3. During the Agreement Period, the Stockholders hereby agree that they
will not vote any of the Schedule A Shares in favor of the approval of any other
merger, consolidation, sale of assets, reorganization, recapitalization,
liquidation or winding up of the Company or any other extraordinary transaction
involving the Company or any matters related to or in connection therewith,
except for the Charter Amendment, or any corporate action relating to or the
consummation of which would either frustrate the purposes of, or prevent or
delay the consummation of, the transactions contemplated by the Merger
Agreement.
4. The Stockholders hereby irrevocably appoint MergerSub, during the
Agreement Period, as proxy for and on behalf of the Stockholders to vote
(including, without limitation, the taking of action by written consent) the
Schedule A Shares, for and in the name, place and stead of the Stockholders for
the matters and in the manner contemplated by paragraph 2 above.
5. Subject to and without prejudice to their fiduciary obligations as
employees, officers or directors of the Company, during the Agreement Period,
the Stockholders will not, directly or indirectly, (i) take any action to
solicit, initiate or encourage any Acquisition Proposal or (ii) engage in
negotiations or discussions with, or disclose any nonpublic information relating
to the Company or any Subsidiary or afford access to the properties, books or
records of the Company or any Subsidiary to, or otherwise assist, facilitate or
encourage, any Third Party that may be considering making, or has made, an
Acquisition Proposal.
6. The Stockholders agree not to exercise any rights (including, without
limitation, under Section 302A.471 of the Minnesota Law) to exercise dissenters'
rights with respect to any Schedule A Shares owned by the Stockholders with
respect to the Merger.
7. Each Stockholder hereby represents and warrants to MergerSub that as
of the date hereof:
(a) such Stockholder (i) owns beneficially all of the shares of
Company Common Stock and options therefor set forth in Schedule A
hereto, (ii) has the full and unrestricted legal power, authority and
right to enter into, execute and deliver this Voting Agreement and
Irrevocable Proxy without the consent or approval of any other person
and (iii) has not entered into any voting agreement with or granted any
person any proxy (revocable or
Page 138 of 142
irrevocable) with respect to such shares (other than this Voting
Agreement and Irrevocable Proxy).
(b) This Voting Agreement and Irrevocable Proxy is the valid and
binding agreement of such Stockholder. If this Agreement is being
executed in a representative or fiduciary capacity, the person signing
this Agreement has full power and authority to enter into and perform
such agreement.
(c) No investment banker, broker or finder is entitled to a
commission or fee from such Stockholder or the Company in respect of
this Agreement based upon any arrangement or agreement made by or on
behalf of such Stockholder.
8. Immediately prior to the Effective Time, each Stockholder agrees to
exchange that number of shares of Company Common Stock referred to for such
Stockholder in Appendix A to the Merger Agreement for Class B Common Stock at a
ratio of one share of Class B Common Stock for each share of Company Common
Stock so exchanged. The Company hereby agrees to take all reasonable actions
necessary to ensure that the Charter Amendment is enacted and the Exchange is
effected.
9. If any provision of this Voting Agreement and Irrevocable Proxy shall
be invalid or unenforceable under applicable law, such provision shall be
ineffective to the extent of such invalidity or unenforceability only, without
in any way affecting the remaining provisions of this Voting Agreement and
Irrevocable Proxy.
10. This Voting Agreement and Irrevocable Proxy may be executed in two
or more counterparts each of which shall be an original with the same effect as
if the signatures hereto and thereto were upon the same instrument.
11. The parties hereto agree that if for any reason any party hereto
shall have failed to perform its obligations under this Voting Agreement and
Irrevocable Proxy, then the party seeking to enforce this Agreement against such
non-performing party shall be entitled to specific performance and injunctive
and other equitable relief, and the 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 or remedies, whether at law or in equity,
that any party hereto may have against any other party hereto for any failure to
perform its obligations under this Voting Agreement and Irrevocable Proxy.
12. This Voting Agreement and Irrevocable Proxy shall be governed by and
construed in accordance with the laws of the State of New York.
Page 139 of 142
13. The Stockholders will, upon request, execute and deliver any
additional documents deemed by MergerSub to be necessary or desirable to
complete and effectuate the Irrevocable Proxy granted herein.
14. This Agreement shall terminate upon the termination of the Agreement
Period.
Page 140 of 142
IN WITNESS WHEREOF, the parties hereto have executed this Voting
Agreement as of this 14th day of July, 1999.
VIKING MERGER SUB, INC.
By:
-----------------------------------
Name:
Title:
XXXXXXX CORPORATION
By:
-----------------------------------
Name:
Title:
-----------------------------------
Name: Xxxx Xxxxxx, individually
-----------------------------------
Name: Xxxx Xxxxxxxxx, individually
Page 141 of 142
SCHEDULE A
Options to Acquire
Shares of Company Company Common
Stockholder Common Stock Stock
----------- ----------------- ------------------
Xxxx Xxxxxx 1,907,716 76,300
Xxxx Xxxxxxxxx 277,362 205,000
Page 142 of 142
