Voting Agreement
Exhibit
10.1
EXECUTION
COPY
This
VOTING AGREEMENT (this “Agreement”), dated as
of January 8, 2010, by and among Xxxxxxxxxxx, Inc., an Indiana corporation
(“Parent”),
Krusher Acquisition Corp., a New Jersey corporation and a direct, wholly-owned
Subsidiary of Parent (“Merger Sub”), and
each of the Persons listed on Annex I hereto (each,
a “Shareholder”). Capitalized
terms used but not defined herein have the meanings assigned to them in the
Agreement and Plan of Merger dated as of the date of this Agreement (the “Merger Agreement”) by
and among Parent, Merger Sub and Krusher, a New Jersey corporation (the “Company”).
Recitals
WHEREAS,
as of the date hereof, each Shareholder is the beneficial owner (as defined in
Rule 13d-3 under the Exchange Act) of the number of Shares set forth opposite
such Shareholder’s name under the heading “Shares Beneficially Owned” on Annex I (all such
beneficially owned Shares which are outstanding as of the date hereof and which
may hereafter be acquired pursuant to acquisition by purchase, stock dividend,
distribution, stock split, split-up, combination, merger, consolidation,
reorganization, recapitalization, combination or similar transaction, being
referred to herein as the “Subject Shares;”
provided that “Subject Shares” shall
not include (i) Shares beneficially owned in the form of Company Options or
Company RSUs, but only to the extent such Shares remain unexercised or unvested,
as the case may be or (ii) those Shares specifically identified on Annex I as “Excluded
Shares”);
WHEREAS,
concurrently with the execution and delivery of this Agreement, Parent, Merger
Sub and the Company are entering into the Merger Agreement, a copy of which has
been made available to each Shareholder, which provides for, among other things,
the merger of Merger Sub with and into the Company (the “Merger”), upon the
terms and subject to the conditions set forth therein; and
WHEREAS,
as a condition to Parent’s and Merger Sub’s willingness to enter into the Merger
Agreement, Parent and Merger Sub have requested that each Shareholder, and in
order to induce Parent and Merger Sub to enter into the Merger Agreement, each
Shareholder has agreed to, enter into this Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the respective representations,
warranties, covenants and agreements set forth below and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, do hereby agree
as follows:
ARTICLE
I
AGREEMENTS OF EACH
SHAREHOLDER
1.1 Voting of Subject
Shares. Each
Shareholder irrevocably and unconditionally agrees that such Shareholder shall,
at any meeting (whether annual or special and whether or not an adjourned or
postponed meeting) of the holders of Shares, however called (each, a “Company Shareholders
Meeting”):
(a) be
present, in person or represented by proxy, or otherwise cause such
Shareholder’s Subject Shares to be counted for purposes of determining the
presence of a quorum at such meeting (to the fullest extent that such Subject
Shares may be counted for quorum purposes under applicable Law);
and
(b) vote
(or cause to be voted) with respect to all such Shareholder’s Subject Shares to
the fullest extent that such Subject Shares are entitled to be voted at the time
of any vote:
(i) in
favor of (1) the approval of the Merger Agreement, (2) without limitation of the
preceding clause (1), the approval of any proposal to adjourn or postpone the
Company Shareholders Meeting to a later date if there are not sufficient votes
for approval of the Merger Agreement on the date on which the Company
Shareholders Meeting is held and (3) any other matter necessary for consummation
of the transactions contemplated by the Merger Agreement, which is considered at
any such Company Shareholders Meeting; and
(ii) against
(1) any action (including any amendment to the Company’s certificate of
incorporation or bylaws, as in effect on the date hereof), agreement or
transaction that would reasonably be expected to frustrate the purposes of,
impede, hinder, interfere with, nullify, prevent, delay or adversely affect, in
each case in any material respect, the consummation of the transactions
contemplated by the Merger Agreement, (2) any Takeover Proposal and any action
in furtherance of any Takeover Proposal, (3) any merger, acquisition, sale,
consolidation, reorganization, recapitalization, extraordinary dividend,
dissolution, liquidation or winding up of or by the Company, or any other
extraordinary transaction involving the Company (other than the Merger), (4) any
action, proposal, transaction or agreement that would reasonably be expected to
result in a breach, in any material respect, of any covenant, representation or
warranty or any other obligation or agreement of such Shareholder under this
Agreement and (5) any other action, proposal, transaction or agreement that
would reasonably be expected to result in the failure of any condition to the
Merger to be satisfied.
1.2 No Proxies for or Liens on
Subject Shares.
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(a) Except
as provided hereunder, during the term of this Agreement, each Shareholder shall
not (nor permit any Person under such Shareholder’s control to), directly or
indirectly, (i) grant any proxies, powers of attorney, rights of first offer or
refusal, or enter into any voting trust or voting agreement or arrangement with
respect to any of such Shareholder’s Subject Shares, (ii) sell (including short
sell), assign, transfer, tender, pledge, encumber, grant a participation
interest in, hypothecate or otherwise dispose of (including by gift) (each, a
“Transfer”) any
of such Shareholder’s Subject Shares, (iii) otherwise permit any Liens to be
created on any of such Shareholder’s Subject Shares or (iv) enter into any
Contract with respect to the direct or indirect Transfer of any of such
Shareholder’s Subject Shares. No Shareholder shall, and shall not
permit any Person under such Shareholder’s control or any of such Shareholder’s
or such Person’s respective representatives to, seek or solicit any such
Transfer or any such Contract. Without limiting the foregoing, each
Shareholder shall not take any other action that would in any way restrict,
limit or interfere in any material respect with the performance of such
Shareholder’s obligations hereunder or the transactions contemplated by the
Merger Agreement.
(b) Notwithstanding
the foregoing, each Shareholder shall have the right to Transfer all or any
portion of his, her or its Subject Shares to a Permitted Transferee of such
Shareholder if and only if such Permitted Transferee shall have agreed in
writing, in a manner reasonably acceptable in form and substance to Parent, (i)
to accept such Subject Shares subject to the terms and conditions of this
Agreement and (ii) to be bound by this Agreement and to agree and acknowledge
that such Person shall constitute a Shareholder for all purposes of this
Agreement. “Permitted Transferee”
means, with respect to any Shareholder, (A) any other Shareholder, (B) a spouse,
lineal descendant or antecedent, brother or sister, adopted child or grandchild
or the spouse of any child, adopted child, grandchild or adopted grandchild of
such Shareholder, (C) any trust, the trustees of which include only the Persons
named in clauses (A) or (B) and the beneficiaries of which include only the
Persons named in clauses (A) or (B), or (D) if such Shareholder is a trust, the
beneficiary or beneficiaries authorized or entitled to receive distributions
from such trust.
(c) Each
Shareholder hereby authorizes Parent and Merger Sub to direct the Company to
impose stop orders to prevent the Transfer of any Subject Shares on the books of
the Company in violation of this Agreement.
1.3 Documentation and
Information. Each Shareholder (a) consents to and authorizes
the publication and disclosure by Parent of such Shareholder’s identity and
holdings of Subject Shares, the nature of such Shareholder’s commitments,
arrangements and understandings under this Agreement and any other information,
in each case, that Parent reasonably determines is required to be disclosed by
applicable Law in any press release or any other disclosure document in
connection with the Merger and the transactions contemplated by the Merger
Agreement and (b) agrees to promptly give to Parent any information it may
reasonably require for the preparation of any such disclosure
documents. Each Shareholder agrees to promptly notify Parent of any
required corrections with respect to any information supplied by such
Shareholder
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specifically
for use in any such disclosure document, if and to the extent that any such
information shall have become false or misleading in any material
respect.
1.4 Irrevocable
Proxy. Each Shareholder hereby revokes (or agrees to cause to
be revoked) any proxies that such Shareholder has heretofore granted with
respect to such Shareholder’s Subject Shares. Each Shareholder hereby
irrevocably appoints Parent, and any individual designated in writing by Parent,
and each of them individually, as attorney-in-fact and proxy for and on behalf
of such Shareholder, for and in the name, place and stead of such Shareholder,
to: (a) attend any and all Company Shareholders Meetings, (b) vote, express
consent or dissent or issue instructions to the record holder to vote such
Shareholder’s Subject Shares in accordance with the provisions of Section 1.1 at any
and all Company Shareholders Meetings or in connection with any action sought to
be taken by written consent of the shareholders of the Company without a meeting
and (c) grant or withhold, or issue instructions to the record holder to grant
or withhold, consistent with the provisions of Section 1.1, all
written consents with respect to the Subject Shares at any and all Company
Shareholders Meetings or in connection with any action sought to be taken by
written consent without a meeting. Parent (or its designee) agrees
not to exercise the proxy granted herein for any purpose other than the purposes
described in this Agreement. The foregoing proxy shall be deemed to
be a proxy coupled with an interest, is irrevocable (and as such shall survive
and not be affected by the death, incapacity, mental illness or insanity of such
Shareholder, as applicable) until the termination of the Merger Agreement and
shall not be terminated by operation of Law or upon the occurrence of any other
event other than the termination of this Agreement pursuant to Section
4.2. Each Shareholder authorizes such attorney and proxy to
substitute any other Person to act hereunder, to revoke any substitution and to
file this proxy and any substitution or revocation with the secretary of the
Company. Each Shareholder hereby affirms that the proxy set forth in
this Section
1.4 is given in connection with and granted in consideration of and as an
inducement to Parent and Merger Sub to enter into the Merger Agreement and that
such proxy is given to secure the obligations of the Shareholder under Section 1.1.
1.5 Notices of Certain
Events. Each Shareholder shall notify Parent of any
development occurring after the date hereof that causes, or that would
reasonably be expected to cause, any breach of any of the representations and
warranties of such Shareholder set forth in Article
II.
1.6 No Solicitations; Other
Offers. Each Shareholder agrees to comply with the obligations
imposed on the Company’s Representatives pursuant to Section 5.3 of the
Merger Agreement as if a party thereto.
1.7 Further
Assurances. Each Shareholder agrees to execute and deliver, or
cause to be executed and delivered, all further documents and instruments as
Parent or Merger Sub shall reasonably request and use their respective
commercially reasonable efforts to take, or cause to be taken, all actions and
to do, or cause to be done, all things necessary, proper or advisable under
applicable Laws and regulations, to perform their respective obligations under
this Agreement.
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ARTICLE
II
REPRESENTATIONS AND
WARRANTIES OF EACH SHAREHOLDER
Each
Shareholder hereby, severally and not jointly, represents and warrants to Parent
and Merger Sub only as to himself, herself or itself (as the case may be) as
follows:
2.1 Organization. Such
Shareholder, if not an individual, is a trust, duly organized and validly
existing and in good standing under the laws of the jurisdiction of its
organization. Such Shareholder, if an individual, is a resident of
the state set forth below such Shareholder’s signature on the signature page
hereto.
2.2 Authorization. If
such Shareholder is not an individual, it has full trust power and authority to
execute and deliver this Agreement and to perform its obligations hereunder. If
such Shareholder is an individual, he or she has full legal capacity, right and
authority to execute and deliver this Agreement and to perform his or her
obligations hereunder. If such Shareholder is not an individual, the
execution, delivery and performance by such Shareholder of this Agreement and
the consummation by such Shareholder of the transactions contemplated hereby
have been duly authorized by all necessary action on the part of such
Shareholder.
2.3 Due Execution and Delivery;
Binding Agreement. This
Agreement has been duly executed and delivered by such Shareholder and
constitutes a valid and legally binding obligation of such Shareholder,
enforceable against such Shareholder in accordance with its terms, subject to
the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar Laws relating to or affecting creditors’ rights
generally and general equitable principles (whether considered in a proceeding
in equity or at Law). If such Shareholder is married and any of the
Subject Shares constitute community property or spousal approval is otherwise
necessary for this Agreement to be legal, binding and enforceable, this
Agreement has been duly authorized, executed and delivered by, and constitutes
the legal, valid and binding obligation of, such Shareholder’s spouse,
enforceable in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
Laws relating to or affecting creditors’ rights generally and general equitable
principles (whether considered in a proceeding in equity or at
Law). If such Shareholder is an individual, such Shareholder has not
executed this Agreement within the state of New York.
2.4 No
Violation.
(a) The
execution and delivery of this Agreement by such Shareholder does not, and the
performance by such Shareholder of such Shareholder’s obligations hereunder will
not, (i) if such Shareholder is not an individual, contravene, conflict with, or
result in any violation or breach of any provision of its organizational
documents, (ii) assuming compliance with Section 2.4(b),
contravene, conflict with or result in a violation nor breach of any provision
of applicable Law or Order of any Governmental Entity with competent
jurisdiction or (iii) constitute a default, or an event that, with or without
notice or lapse of time or both, could become a default, under, or cause or
permit the termination, cancellation, acceleration or other
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change
of any right or obligation or the loss of any benefit which such Shareholder is
entitled under any provision of any Contract binding upon such
Shareholder.
(b) No
consent, approval, order, authorization or permit of, or registration,
declaration or filing with or notification to, any Governmental Entity or any
other Person is required by or with respect to such Shareholder in connection
with the execution and delivery of this Agreement by such Shareholder or the
performance by such Shareholder of his, her or its obligations hereunder, except
for the filing with the SEC of any Schedules 13D or 13G or amendments to
Schedules 13D or 13G and filings under Section 16 of the Exchange Act as may be
required in connection with this Agreement and the transactions contemplated
hereby.
2.5 Ownership of Subject
Shares. As
of the date hereof, such Shareholder is, and (except with respect to any Subject
Shares Transferred in accordance with Section 1.2 hereof)
at all times during the term of this Agreement will be, the beneficial owner of,
and has, and will have, good and marketable title to, such Shareholder’s Subject
Shares with no restrictions on such Shareholder’s rights of disposition
pertaining thereto, except as may be otherwise set forth on Annex I
hereto. Other than as provided in this Agreement or as set forth on
Annex I hereto,
such Shareholder has, and (except with respect to any Subject Shares Transferred
in accordance with Section 1.2 hereof)
at all times during the term of this Agreement will have, with respect to such
Shareholder’s Subject Shares, the sole power, directly or indirectly, to vote,
dispose of, exercise and convert, as applicable, such Subject Shares, and to
demand or waive any appraisal rights or issue instructions pertaining to such
Subject Shares with respect to the matters set forth in this Agreement, in each
case with no limitations, qualifications or restrictions on such rights, and, as
such, has, and (except with respect to any Subject Shares Transferred in
accordance with Section 1.2 hereof)
at all times during the term of this Agreement will have, the complete and
exclusive power to, directly or indirectly (a) issue (or cause the issuance of)
instructions with respect to the matters set forth in Section 1.4
hereof and (b) agree to all matters set forth in this
Agreement. Except to the extent of any Subject Shares acquired after
the date hereof (which shall become Subject Shares upon that acquisition) or as
set forth on Annex
I hereto, the number of Shares set forth on Annex I opposite the
name of such Shareholder are the only Shares beneficially owned by such
Shareholder as of the date of this Agreement. Other than the Subject
Shares and any Shares that are the subject of unexercised Company Stock Options
and any Company RSUs held by such Shareholder (the number of which is set forth
opposite the name of such Shareholder on Annex I) or as set
forth on Annex
I hereto, such Shareholder does not own any Shares or any options to
purchase or rights to subscribe for or otherwise acquire any securities of the
Company and has no interest in or voting rights with respect to any securities
of the Company. Except as may be required pursuant to award
agreements relating to Unvested Restricted Stock, there are no agreements or
arrangements of any kind, contingent or otherwise, to which such Shareholder is
a party obligating such Shareholder to Transfer or cause to be Transferred, any
of such Shareholder’s Subject Shares. No Person has any contractual
or other right or obligation to purchase or otherwise acquire any of such
Shareholder’s Subject Shares.
2.6 No Other
Proxies. None
of such Shareholder’s Subject Shares are subject to any voting trust or other
agreement or arrangement with respect to the voting of such Shares, except as
provided hereunder.
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2.7 Absence of
Litigation. With
respect to such Shareholder, as of the date hereof, there is no action, suit,
investigation or proceeding pending against, or, to the knowledge of such
Shareholder, threatened against, or otherwise affecting, such Shareholder or any
of his, her or its properties or assets (including such Shareholder’s Subject
Shares) that could reasonably be expected to impair in any material respect the
ability of such Shareholder to perform his, her or its obligations hereunder or
to consummate the transactions contemplated hereby on a timely
basis.
2.8 Opportunity to Review;
Reliance. Such
Shareholder has had the opportunity to review the Merger Agreement and this
Agreement with counsel of his, her or its own choosing. Such
Shareholder understands and acknowledges that Parent and Merger Sub are entering
into the Merger Agreement in reliance upon such Shareholder’s execution,
delivery and performance of this Agreement.
2.9 Finders’
Fees. No
investment banker, broker, finder or other intermediary is entitled to a fee or
commission from Parent, Merger Sub or the Company in respect of this Agreement
based upon any arrangement or agreement made by or on behalf of such Shareholder
in his, her or its capacity as such.
ARTICLE
III
REPRESENTATIONS AND
WARRANTIES OF PARENT AND MERGER SUB
Each
of Parent and Merger Sub hereby, jointly and severally, represent and warrant to
the Shareholders that:
3.1 Organization. Parent
and Merger Sub are each duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization.
3.2 Authorization. Each
of Parent and Merger has full corporate power and authority to execute and
deliver this Agreement and to perform its obligations hereunder. The
execution, delivery and performance by Parent and Merger Sub of this Agreement
and the consummation by Parent and Merger Sub of the transactions contemplated
hereby have been duly authorized by all necessary action on the part of Parent
and Merger Sub.
3.3 Due Execution and Delivery;
Binding Agreement. This
Agreement has been duly executed and delivered by each of Parent and Merger Sub
and constitutes a valid and legally binding obligation of Parent and Merger Sub,
enforceable against Parent and Merger Sub in accordance with its terms, subject
to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar Laws relating to or affecting creditors’ rights
generally and general equitable principles (whether considered in a proceeding
in equity or at Law).
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ARTICLE
IV
MISCELLANEOUS
4.1 Notices. All
notices, requests and other communications to any party hereunder shall be in
writing (including facsimile transmission) and shall be given, (i) if to Parent
or Merger Sub, in accordance with the provisions of the Merger Agreement and
(ii) if to a Shareholder, to such Shareholder’s address or facsimile number set
forth on a signature page hereto, or to such other address or facsimile number
as such party may hereafter specify for the purpose by notice to each other
party hereto.
4.2 Termination. This
Agreement shall terminate automatically, without any notice or other action by
any Person, upon the earlier of (i) termination of the Merger Agreement and (ii)
the Effective Time. Upon termination of this Agreement, no party
shall have any further obligations or liabilities under this Agreement; provided, however, that (x) nothing set
forth in this Section
4.2 shall relieve any party for liability arising from fraud or a willful
and material breach of this Agreement and (y) the provisions of this Article IV shall
survive any such termination of this Agreement.
4.3 Amendments and
Waivers. Any
provision of this Agreement may be amended or waived if such amendment or waiver
is in writing and is signed, in the case of an amendment, by each party to this
Agreement or, in the case of a waiver, by each party against whom the waiver is
to be effective. No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or
privilege. Except as otherwise provided herein, the rights and
remedies of the parties hereunder are cumulative and are not exclusive of any
rights or remedies which they would otherwise have hereunder.
4.4 Expenses. Whether
or not the Merger is consummated, all costs and expenses incurred in connection
with this Agreement shall be paid by the party incurring or required to incur
such cost or expenses.
4.5 Binding Effect;
Assignment. The
provisions of this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and
assigns. No party may assign, delegate or otherwise transfer any of
its rights or obligations under this Agreement without the consent of each other
party hereto, except that (a) Parent may transfer and assign it rights to one or
more individuals as provided in Section 1.4 and (b)
each of Parent and Merger Sub may transfer or assign its rights and obligations
under this Agreement, in whole or from time to time in part, to one or more of
its Affiliates at any time; provided, that such transfer
or assignment shall not relieve Parent or Merger Sub of any of its obligations
hereunder.
4.6 GOVERNING LAW AND VENUE;
WAIVER OF JURY TRIAL.
(a) This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of New Jersey, without giving effect to any choice or conflict of law
provision or rule (whether of the State of New Jersey or any other jurisdiction)
that would cause
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the
application of the laws of any jurisdiction other than the State of New
Jersey. The parties hereby irrevocably submit to the exclusive
jurisdiction of the courts of the State of New Jersey and the Federal courts of
the United States of America located in the State of New Jersey and the City of
Chicago, Illinois in respect of all matters arising out of or relating to this
Agreement the interpretation and enforcement of the provisions of this
Agreement, and in respect of the transactions contemplated hereby, and hereby
waive, and agree not to assert, as a defense in any action, suit or proceeding
for the interpretation or enforcement hereof or of any such document, that it is
not subject thereto or that such action, suit or proceeding may not be brought
or is not maintainable in said courts or that the venue thereof may not be
appropriate or that this Agreement or any such document may not be enforced in
or by such courts, and the parties hereto irrevocably agree that all claims with
respect to such action or proceeding shall be heard and determined exclusively
in such State or Federal court. The parties hereby consent to and
grant any such court jurisdiction over the person of such parties solely for
such purpose and over the subject matter of such dispute and agree that mailing
of process or other papers in connection with any such action or proceeding in
the manner provided in Section 4.1 or in
such other manner as may be permitted by Law shall be valid and sufficient
service thereof.
(b) EACH
PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS
AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE
EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH
PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES
THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY
MAKES THIS WAIVER VOLUNTARILY AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER INTO
THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION
4.6(b).
4.7 Counterparts;
Effectiveness. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed to be an original but all of which shall constitute one and the same
instrument. This Agreement shall become effective when each party
hereto shall have received counterparts thereof signed and delivered (by
telecopy or otherwise) by the other parties hereto.
4.8 Entire Agreement; Third
Party Beneficiaries. This
Agreement constitutes the entire agreement, and supersedes all prior agreements
and understandings, both written and oral, between the parties with respect to
the subject matter hereof. Nothing in this Agreement, express or
implied, is intended to or shall confer upon any Person other than the parties
and their respective successors and permitted assigns any legal or equitable
right, benefit or remedy of any nature under or by reason of this
Agreement.
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4.9 Severability. Whenever
possible, each provision or portion of any provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable Law,
but if any term or other provision of this Agreement is invalid, illegal or
incapable of being enforced by any Law or public policy, all other terms and
provisions of this Agreement shall nevertheless remain in full force and
effect. Notwithstanding the foregoing, upon such determination that
any term or other provision is invalid, illegal or incapable of being enforced,
the parties shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in an
acceptable manner in order that the transactions contemplated hereby are
consummated as originally contemplated to the greatest extent
possible.
4.10 Specific
Performance. The
parties hereto agree that each of Parent and Merger Sub would be irreparably
damaged in the event that any Shareholder fails to perform any of his, her or
its obligations under this Agreement. Accordingly, each of Parent and
Merger Sub shall be entitled to an injunction or injunctions to prevent breaches
of this Agreement by any Shareholder and to specific performance of the terms
and provisions hereof in any court of competent jurisdiction, this being in
addition to any other remedy to which they are entitled at Law or in
equity.
4.11 Interpretation. When
a reference is made in this Agreement to Sections or Articles, such reference
shall be to a Section or Article of this Agreement unless otherwise
indicated. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Whenever the words “include,” “includes” or
“including” are used in this Agreement, they shall be deemed to be followed by
the words “without limitation,” unless otherwise specified. The words
“hereby,” “hereof,” herein” and “hereunder” and words of similar import when
used in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement. The words “date hereof” shall
refer to the date of this Agreement. The word “extent” in the phrase
“to the extent” shall mean the degree to which a subject or other thing extends,
and such phrase shall not mean simply “if.” The term “or” shall not
be deemed to be exclusive. All terms defined in this Agreement shall
have the defined meanings when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein. The words
describing the singular number shall include the plural and vice versa and words
denoting any gender shall include all genders. References to a Person
are also to its permitted successors and assigns. The parties have
participated jointly in the negotiation and drafting of this
Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any provisions of this
Agreement.
4.12 Capacity as
Shareholder. Each
Shareholder signs this Agreement solely in such Shareholder’s capacity as a
Shareholder of the Company and not in such Shareholder’s capacity as a director,
officer or employee of the Company or any of its Subsidiaries or in such
Shareholder’s capacity as a trustee or fiduciary of any employee benefit plan or
trust. Nothing herein shall in any way restrict a director or officer
of the Company in the exercise of his or her fiduciary duties as a director or
officer of the Company or in his or her capacity as a trustee or fiduciary of
any employee benefit plan or trust or prevent or be construed to create any
obligation on the part of any director or officer of the Company or any trustee
or fiduciary of any
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employee
benefit plan or trust from taking any action in his or her capacity as such
director, officer, trustee or fiduciary.
[Signature
Page Next]
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IN
WITNESS WHEREOF, Parent, Merger Sub and the Shareholders have caused this
Agreement to be duly executed and delivered as of the date first written
above.
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Xxxxxxxxxxx,
Inc.
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By:
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/s/
Xxxxxxx X. Xxxx
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Name:
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Xxxxxxx
X. Xxxx
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Title:
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President
and Chief Executive
Officer
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Krusher
Acquisition Corp.
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By:
|
/s/
Xxxx X. Xxxxxx
|
||||
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Name:
|
Xxxx
X. Xxxxxx
|
||||
|
Title:
|
Vice
President and Secretary
|
||||
[Voting
Agreement Signature Page]
|
Shareholder
|
|||
| /s/ Xxxxx X. Xxxxx | |||
|
Name:
Xxxxx X. Xxxxx
|
|||
| Address: | |||
[Voting
Agreement Signature Page]
|
Shareholder
|
||||
| /s/ Xxxxxx X. Xxxxxx, XX |
|
|||
|
Name:
Xxxxxx X. Xxxxxx, XX
|
||||
|
Address:
|
|
|||
[Voting
Agreement Signature Page]
|
Shareholder
|
|||
|
/s/
Xxxxxx Xxxxx
|
|||
|
Name:
Xxxxxx Xxxxx
|
|||
|
Address:
|
|
[Voting
Agreement Signature Page]
|
Shareholder
|
|||
|
/s/
Xxxxxx X. Xxxxx
|
|||
|
Name:
Xxxxxx X. Xxxxx
|
|||
|
Address:
|
|
|
Shareholders
|
|||
|
/s/
Xxxxx Xxxxxxxxxx
|
|||
|
Name:
Xxxxx Xxxxxxxxxx
|
|||
|
Address:
|
|
||
|
|
|||
|
/s/
Xxxxx X. Xxxxxxxxxx
|
|||
|
Name:
Xxxxx X. Xxxxxxxxxx
|
|||
|
Address:
|
|
||
|
|
[Voting
Agreement Signature Page]
|
Shareholder
|
|||
|
/s/
Xxxxxx X. Xxxx
|
|
||
|
Name:
Xxxxxx X. Xxxx
|
|||
|
Address:
|
|
||
|
|
[Voting
Agreement Signature Page]
|
Shareholder
|
|||
|
/s/
Xxxxxx X. Xxxxxxxxxx
|
|
||
|
Name:
Xxxxxx X. Xxxxxxxxxx
|
|||
|
Address:
|
|
||
|
|
[Voting
Agreement Signature Page]
|
Shareholder
|
|||
|
/s/
Xxxxxxx X. Xxxxxx
|
|
||
|
Name:
Xxxxxxx X. Xxxxxx
|
|||
|
Address:
|
|
||
|
|
[Voting
Agreement Signature Page]
|
Shareholder
|
|||
|
/s/
Xxxxxx X. Xxxxxxxxxx
|
|
||
|
Name:
Xxxxxx X. Xxxxxxxxxx
|
|||
|
Address:
|
|
||
|
|
[Voting
Agreement Signature Page]
Annex
I
|
Shareholder
|
Shares
Beneficially
Owned
|
Subject
Shares Outstanding as of January 8, 2010
|
Company
Stock Options1
|
Company
RSUs1
|
Excluded
Shares
|
|
Xxxxx
X. Xxxxx
|
30,095
|
19,095
|
10,000
|
1,000
|
|
|
Xxxxxx
X. Xxxxxx, XX
|
248,487
|
213,287
|
10,000
|
2,000
|
23,3002
|
|
Xxxxxx
Xxxxx
|
4,469
|
2,469
|
2,000
|
||
|
Xxxxxx
X. Xxxxx
|
12,500
|
6,500
|
6,000
|
||
|
Xxxxx
Xxxxxxxxxx
|
37,355
|
17,3553
|
19,000
|
1,000
|
|
|
Xxxxxx
X. Xxxx
|
3,500
|
3,500
|
|||
|
Xxxxxx
X. Xxxxxxxxxx
|
5,500
|
4,500
|
1,000
|
||
|
Xxxxxxx
X. Xxxxxx
|
18,314
|
12,314
|
6,000
|
||
|
Xxxxxx
X. Xxxxxxxxxx
|
3,500
|
2,500
|
1,000
|
1 The
Shares underlying Company Stock Options and Company RSUs are included in the
“Shares Beneficially Owned” column.
2 Xx.
Xxxxxx has shared power to vote or direct the vote, and to dispose or direct the
disposition, of 23,200 Shares that he indirectly beneficially owns pursuant to
powers of attorney granted to him by each of Xxx. Xxxxxxxx X. Xxxxxx and Xxx.
Xxx X. Xxxxx. Also includes 100 Shares Xx. Xxxxxx intends to transfer
to Upper Dublin Lutheran Church.
3 Xx.
Xxxxxxxxxx shares investment and voting power with his wife, Xxxxx X.
Xxxxxxxxxx, for 11,797 Shares.
