EXHIBIT 11
VOTING AGREEMENT
This Agreement is made as of January 10, 2000 among JJF GROUP, INC.,
a Minnesota corporation ("PURCHASER"), JJF ACQUISITION, INC., a Minnesota
corporation and a wholly owned subsidiary of Purchaser ("NEWCO"), XXXX X.
XXXXX, a resident of Minnesota ("XXXXX")and each other person or entity
listed on the signature pages hereof as a Stockholder (each, a "STOCKHOLDER").
WHEREAS, Purchaser, Newco and TSI, Incorporated, a Minnesota
corporation (the "COMPANY") have entered into an Agreement and Plan of Merger
dated as of the date hereof (the "MERGER AGREEMENT"; capitalized terms used
but not otherwise defined in this Agreement have the meanings assigned to
such terms in the Merger Agreement), which provides for the merger of Newco
with and into the Company (the "MERGER"); and
WHEREAS, the board of directors of the Company has established a
committee of all of its disinterested directors pursuant to Minnesota
Statutes Chapter 302A.673, subd. (d)(1) (the "BUSINESS COMBINATION ACT") who
have affirmatively voted to approve the Merger Agreement, this Agreement and
related transactions by and among Purchaser, Newco and the Company pursuant
to the Business Combination Act;
WHEREAS, as of the date hereof, each Stockholder owns (beneficially
or of record) the number of shares of Company common stock, $.10 par value
per share (the "COMPANY COMMON STOCK") set forth opposite such Stockholder's
name on EXHIBIT A hereto (those shares are referred to herein as the "SHARES"
of that Stockholder), and the Shares of all of the Stockholders collectively
constitute approximately 10.95% of the Company's outstanding shares of
Company Common Stock;
WHEREAS, as a condition to the willingness of Purchaser and Newco to
enter into the Merger Agreement, Purchaser and Newco have required that the
Stockholders to enter into this Agreement; and
NOW, THEREFORE, in consideration of the foregoing premises and
agreements contained herein, each Stockholder severally agrees with the
Purchaser and Newco as follows:
SECTION 1. TRANSFER AND VOTING OF SHARES.
1.1. VOTING AGREEMENT. Each Stockholder hereby agrees that during
the time this Agreement is in effect, at any meeting of the stockholders of
the Company, however called, and in any action by consent of the stockholders
of the Company, such Stockholder shall vote the Shares; (a) in favor of the
Merger, the Merger Agreement (as amended from time to time) and the
transactions contemplated by the Merger Agreement, and (b) against any
proposal for any recapitalization, merger (other than the Merger), sale of
assets or other business combination between the Company and any person or
entity (other than Purchaser or Newco). This Agreement
is intended to, and shall, bind a Stockholder only with respect to the
specific matters set forth herein in the Stockholder's capacity as a
stockholder of the Company and does not bind a Stockholder with respect to
voting as a member of the Company's Board of Directors. This Agreement is
intended to, and shall, bind a Stockholder only with respect to the number of
Shares set forth opposite his name on Exhibit A. In the event that a
Stockholder acquires ownership or voting power as to additional Company
Common Stock, such additional shares shall not be subject to this Agreement.
1.2. NO DISPOSITION OR ENCUMBRANCE OF SHARES. Each Stockholder
hereby covenants and agrees that, from the date hereof to the termination of
this agreement, he shall not, and shall not offer or agree to, sell,
transfer, tender, assign, hypothecate or otherwise dispose of, or create or
permit to exist any Encumbrance (as hereinafter defined) on his Shares at any
time prior to the Effective Time; PROVIDED, HOWEVER, any Stockholder may make
gifts of all or a portion of his Shares (a) at any time to a donee who agrees
to vote as provided in Section 1.1 of this Agreement, (b) to any charitable
organization or foundation, member of his immediate family, descendent or
trust for any of their benefit, but only if the gift is made after the record
date for the meeting of the stockholders of the Company to vote upon the
Merger and (c) as otherwise consented to by Purchaser, which consent will not
be unreasonably withheld or delayed.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF EACH STOCKHOLDER
Each Stockholder, severally and not jointly, hereby represents
and warrants to Purchaser and Newco as follows:
2.1. DUE EXECUTION, ETC. This Agreement has been duly executed and
delivered by or on behalf of such Stockholder and, assuming its due
authorization, execution and delivery by Purchaser and Newco, constitutes a
legal, valid and binding obligation of such Stockholder, enforceable against
such Stockholder in accordance with its terms.
2.2 NO CONFLICTS, REQUIRED FILINGS AND CONSENTS. The execution and
delivery of this Agreement by such Stockholder do not, and the performance of
this Agreement by such Stockholder will not, (i) conflict with or violate any
agreement, decree or judgment applicable to such Stockholder or by which he
or any of his properties is bound or affected, or (ii) result in the creation
of a lien or Encumbrance on any of his Shares.
2.3 TITLE TO SHARES. Such Stockholder is the record and beneficial
owner of the Shares set forth opposite such Stockholder's name on EXHIBIT A
hereto, free and clear of any pledge, lien, security interest, mortgage,
charge, claim, equity, option, proxy, voting restriction, right of first
refusal limitation on disposition, adverse claim of ownership or use or
encumbrance of any kind ("ENCUMBRANCE") which would prevent such Stockholder
from entering into or performing this Agreement, other than pursuant to this
Agreement and the Merger Agreement.
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SECTION 3. REPRESENTATIONS AND WARRANTIES OF NEWCO AND PURCHASER
Purchaser, Newco and Xxxxx hereby, jointly and severally, represent
and warrant to each Stockholder that (a) Newco and Purchaser have all
requisite corporate power to execute and deliver this Agreement and to
consummate the transactions contemplated hereby; (b) the execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby by each of Newco and Purchaser have been duly authorized
by all necessary corporate action on the part of Newco and Purchaser; and (c)
this Agreement has been duly executed and delivered by each of Newco and
Purchases and, assuming its due authorization, execution and delivery by each
Stockholder, constitutes a legal, valid and binding obligation of each of
Newco and Purchaser, enforceable against Newco and Purchaser in accordance
with its terms.
SECTION 4. MISCELLANEOUS
4.1. EXPENSES. Except as otherwise provided herein, all costs and
expenses incurred in connection with the transactions contemplated by this
Agreement shall be paid by the party incurring such costs and expenses.
4.2. NOTICES. Any notice or other communication required or
permitted hereunder shall be a writing and shall be delivered personally,
sent by facsimile transmission or sent by certified, registered, express mail
or nationally recognized courier service, postage prepaid. Any such notice
shall be deemed given when so delivered personally or successfully sent by
facsimile transmission or, if mailed, five days after the date of deposit in
the United States mails, as follows:
(i) if to Purchaser or Newco to: With a concurrent copy to:
--------------------------- --------------------------
JJF Group, Inc. Xxxxxxxxx & Xxxxxx P.L.L.P.
000 Xxxxx 0xx Xxxxxx, Xxxxx 0000 0000 XXX Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000 Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxx X. Xxxxx Attn: Xxxxxxx X. XxXxxx
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
(ii) if to a Stockholder to: With a concurrent copy to:
---------------------- --------------------------
TSI Incorporated Xxxx, Plant, Xxxxx, Xxxxx & Xxxxxxx
000 Xxxxxxxx Xxxx 0000 Xxxx Xxxxxx
X.X. Xxx 00000 00 Xxxxx Xxxxx Xxxxxx
Xx. Xxxx, XX 00000 Xxxxxxxxxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000 Attn: Xxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
Any party may by notice given in accordance with this Section 4.2 to
the other parties designate another address or person for receipt of notices
hereunder.
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4.3. SEVERABILITY. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction,
be ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable, the provision shall be
interpreted to be only so broad as is enforceable.
4.4. ENTIRE AGREEMENT. This Agreement and any documents delivered by
the parties in connection herewith constitute the entire agreement among the
parties with respect to the subject matter hereof and supersede all prior
agreements and understandings among the parties with respect thereto. No
addition to or modification of any provision of this Agreement shall be
binding upon any party hereto unless made in writing and signed by all
parties hereto.
4.5. ASSIGNMENT, BINDING EFFECT. Neither this Agreement nor any of
the rights, interests or obligations hereunder shall be assigned by any of
the parties hereto (whether by operation of law or otherwise) without the
prior written consent of the other parties, except that Purchaser or Newco
may assign all or any of their rights and obligations hereunder to any
affiliate of Purchaser, provided that no such assignment shall relieve
Purchaser or Newco of its obligations hereunder if such assignee does not
perform such obligations. Subject to the preceding sentence, this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto
and their respective successors and assigns. Notwithstanding anything
contained in this Agreement to the contrary, nothing in this Agreement,
expressed or implied, is intended to confer on any person other than the
parties hereto or their respective successors and assigns any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
4.6. SPECIFIC PERFORMANCE. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
was not performed in accordance with its specific terms or was otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any Minnesota court,
this being in addition to any other remedy to which they are entitled at law
or in equity.
4.7. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Minnesota, without
regard to its rules of conflict of laws.
4.8. HEADINGS. Headings of the Articles and Sections of this
Agreement are for the convenience of the parties only, and shall be given no
substantive or interpretive effect whatsoever.
4.9. COUNTERPARTS. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute one
and the same instrument. Each counterpart may consist of a number of copies
hereof each signed by less than all, but together signed by all of the
parties hereto.
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4.10. TERMINATION. This Agreement shall terminate and be of no
further force and effect, automatically and without any required action of
the parties, hereto, at the time of the termination of the Merger Agreement;
PROVIDED, HOWEVER, that no such termination shall release any Stockholder for
any liability arising as a result of the breach of its obligations or
representations and warranties hereunder prior to such termination. The
proviso of the preceding sentence shall not apply, and no Stockholder shall
have any liability under this Agreement following the consummation of the
Merger provided for in the Merger Agreement.
[The remainder of this page is intentionally left blank.]
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4.11. TERMINATION OF ALL STOCKHOLDER AGREEMENTS. Each Stockholder
agrees that any and all stock purchase agreements, voting agreements,
registration rights agreements, shareholders' agreements or any other
agreements pursuant to which such Stockholder acquired Shares shall terminate
effective upon the Merger.
IN WITNESS WHEREOF, the parties have caused this Voting Agreement to
be executed as of the date first written above.
JJF Acquisition, Inc. JJF Group, Inc.
By /s/ Xxxx X. Xxxxx By /s/ Xxxx X. Xxxxx
-------------------------------- -----------------------------
Its Chairman Its Chairman
-------------------------------- -----------------------------
/s/ Xxxx X. Xxxxx
--------------------------------
Xxxx X. Xxxxx
STOCKHOLDERS:
/s/ Xxxx X. Xxxxxxx /s/ Xxxxx X. Xxxxxxx
----------------------------------- --------------------------------
Xxxx X. Xxxxxxx Xxxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxxxxx
----------------------------------- --------------------------------
Xxxxx X. Xxxxxx Xxxxxxx X. Xxxxxxx
/s/ Xxxxx X. Doubles /s/ Xxxxxx X. Xxxxxxxx
----------------------------------- --------------------------------
Xxxxx X. Doubles Xxxxxx X. Xxxxxxxx
/s/ Xxxxxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxxxx
----------------------------------- --------------------------------
Xxxxxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxx
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EXHIBIT A
LIST OF STOCKHOLDERS
Number of Shares
Name of Stockholder of Company Common Stock
------------------- -----------------------
Xxxxx X. Doubles 74,000
Xxxxxx X. Xxxxxxx 592,947
Xxxxx X. Xxxxxx 460,910
Xxxxxx X. Xxxxxxxx 44,000
Xxxxxxx X. Xxxxxxx 30,750
Xxxxxxxx X. Xxxxxx 28,500
Xxxx X. Xxxxxxx 20,048
Xxxxxx X. Xxxxxxxx -0-
---------
1,251,155
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