Contract
Exhibit
99.1
Execution Version
VOTING AGREEMENT dated as of April 3, 2011 (this “Agreement”), by and among
Xxxxxxxx Incorporated, a Delaware corporation (“Parent”), and the individuals and other
parties listed on Schedule A attached hereto (each, a “Stockholder” and, collectively, the
“Stockholders”).
WHEREAS, Parent, DLBMS, Inc., a Delaware corporation and a wholly-owned subsidiary of Parent
(“Merger Sub”), and XxXxxxx, Inc., a Delaware corporation (the “Company”), propose
to enter into an Agreement and Plan of Merger dated as of the date hereof (as the same may be
amended or supplemented, the “Merger Agreement;” terms used but not defined herein shall
have the meanings set forth in the Merger Agreement) providing for the merger of Merger Sub with
and into the Company, as a result of which the Company will become a wholly-owned subsidiary of
Parent (the “Merger”), upon the terms and subject to the conditions set forth in the Merger
Agreement;
WHEREAS, each Stockholder is the record and/or beneficial owner of the number of shares of
capital stock of the Company set forth opposite such Stockholder’s name on Schedule A hereto (such
shares of capital stock of the Company being referred to herein as such Stockholder’s “Original
Shares;” the Original Shares, together with any other shares of capital stock of the Company or
other voting securities of the Company of which such Stockholder acquires record and/or beneficial
ownership after the date hereof and during the term of this Agreement (including, without
limitation, by purchase, as a result of a stock dividend, stock split, recapitalization,
combination, exchange or change of such Original Shares or through the exercise of any warrants,
stock options or similar instruments), excluding the shares of capital stock of the Company set
forth on Schedule B hereto under the column “Shares Potentially Transferred,” being collectively
referred to herein as such Stockholder’s “Subject Shares”); and
WHEREAS, as a condition to its willingness to enter into the Merger Agreement, Parent has
required that each Stockholder enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the representations, warranties,
covenants and agreements set forth herein and in the Merger Agreement, the parties hereto,
intending to be legally bound, agree as follows:
1. Representations and Warranties of Each Stockholder. Each Stockholder hereby,
severally and not jointly, represents and warrants to Parent in respect of himself, herself or
itself as follows:
(a) Organization; Authority, Execution and Delivery; Enforceability.
(i) With respect to each Stockholder that is not a natural person, such Stockholder (i) is
duly organized, validly existing and in good standing under the laws of its jurisdiction of
organization and (ii) has the requisite corporate or other comparable power and authority to
execute and deliver this Agreement, to consummate the transactions contemplated by this Agreement
and to comply with and perform its obligations under the provisions of this Agreement. The
execution and delivery of this Agreement by each Stockholder that is not a
natural person, the consummation by such Stockholder of the transactions contemplated by this
Agreement and the compliance by such Stockholder with, and the performance by such
Stockholder of its obligations under, the provisions of this Agreement have been duly authorized by
all necessary corporate or other comparable action on the part of such Stockholder and no other
corporate or other comparable proceedings on the part of such Stockholder are necessary to
authorize this Agreement or to consummate the transactions contemplated by this Agreement.
(ii) With respect to each Stockholder who is a natural person, such Stockholder has full legal
power and capacity to execute and deliver this Agreement and to perform such Stockholder’s
obligations hereunder. If such Stockholder is married, and any of the Subject Shares of such
Stockholder constitute community property or otherwise need spousal or other approval for this
Agreement to be legal, valid and binding, this Agreement has been duly and validly executed and
delivered by such Stockholder’s spouse and, assuming due authorization, execution and delivery by
Parent, constitutes a legal, valid and binding obligation of such Stockholder’s spouse, enforceable
against such Stockholder’s spouse in accordance with its terms.
(iii) This Agreement has been duly executed and delivered by such Stockholder and, assuming
the due authorization, execution and delivery by Parent, constitutes a valid and binding obligation
of such Stockholder, enforceable against such Stockholder in accordance with its terms. The
execution and delivery of this Agreement and the consummation of the transactions contemplated
hereby and compliance by such Stockholder with, and performance by such Stockholder of his, her or
its obligations under, the provisions hereof do not and will not conflict with, or result in any
violation or breach of, or default (with or without notice or lapse of time, or both) under, or
give rise to a right of, or result in, termination, cancellation or acceleration of any obligation
or to loss of a material benefit under, or result in the creation of any Lien in or upon any of the
properties or assets of such Stockholder under, or give rise to any increased, additional,
accelerated or guaranteed rights or entitlements under, any provision of (i) with respect to each
Stockholder that is not a natural person, the articles of incorporation or bylaws, partnership
agreement or limited liability company agreement (or similar organizational documents) of such
Stockholder, (ii) any Contract to which such Stockholder is a party or any of the properties or
assets of such Stockholder is bound or affected or (iii) subject to the governmental filings and
other matters referred to in the following sentence, any (A) statute, law, ordinance, rule or
regulation or (B) judgment, order or decree, in each case, applicable to such Stockholder or his,
her or its properties or assets. No consent, approval, order or authorization of, or registration,
declaration or filing with, any Governmental Authority is required by or with respect to such
Stockholder in connection with the execution and delivery of this Agreement by such Stockholder,
the consummation by such Stockholder of the transactions contemplated by this Agreement or the
compliance by such Stockholder with the provisions of this Agreement, except for (1) filings under
the HSR Act and any other applicable competition, merger control, antitrust or similar law, (2)
filings with the Securities and Exchange Commission (“SEC”) and (3) such other consents,
approvals, orders, authorizations, registrations, declarations and filings the failure of which to
be obtained or made individually or in the aggregate would not impair in any material respect the
ability of such Stockholder to perform his, her or its obligations under this Agreement.
(b) Subject Shares. The Stockholder is the record and/or beneficial owner of, or is
trustee of a trust that is the record holder of, and whose beneficiaries are the beneficial owners
of, and the Stockholder or such trust has good and marketable title to, the Subject Shares
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set forth opposite his, her or its name on Schedule A attached hereto, free and clear of any
Liens. For the avoidance of doubt, the shares of capital stock of the Company set forth on
Schedule B hereto under the column “Shares Potentially Transferred” shall not be subject to this
Agreement. Other than as set forth on Schedule A and Schedule B hereto, such Stockholder does not
own (of record or beneficially) or have the right to vote any (i) shares of capital stock of the
Company or voting securities of the Company or (ii) securities of the Company convertible into or
exchangeable for shares of capital stock or voting securities of the Company. Such Stockholder
(individually or, where applicable, jointly with other Stockholders who are parties hereto) has the
sole right to vote, Transfer (as defined in Section 2(c)) and demand appraisal rights and
sole power to agree to all of the matters set forth in this Agreement in each case with respect to
all of such Subject Shares. None of such Subject Shares is subject to any voting trust or other
agreement, arrangement or restriction with respect to the voting or the Transfer of such Subject
Shares that would in any way limit the ability of such Stockholder to perform his, her or its
obligations under this Agreement.
(c) Pending and Threatened Actions. There is no action, suit, investigation,
complaint or other proceeding pending against any such Stockholder or, to the knowledge of such
Stockholder, threatened against such Stockholder that restricts or prohibits (or, if successful,
would restrict or prohibit) the exercise by Parent of its rights under this Agreement or the
performance by any party of its obligations under this Agreement.
(d) Finders’ Fees. Except as provided in the Merger Agreement, no broker, investment
banker, financial advisor or other person is entitled to any broker’s, finder’s, financial
adviser’s or other similar fee or commission in connection with the transactions contemplated by
the Merger Agreement or this Agreement based upon arrangements made by or on behalf of such
Stockholder.
(e) Reliance. Such Stockholder understands and acknowledges that Parent and Merger
Sub are entering into the Merger Agreement in material reliance upon such Stockholder’s execution
and delivery of this Agreement and the agreements, representations and warranties of such
Stockholder contained herein.
2. Covenants of each Stockholder. Each Stockholder, severally and not jointly, agrees
as follows:
(a) At any meeting of the stockholders of the Company called to vote upon the Merger
Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement, or at
any postponement or adjournment thereof, or in any other circumstances upon which a vote, consent,
adoption or other approval (including by written consent solicitation) with respect to the Merger
Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement is
sought, such Stockholder shall (i) when a meeting is held, appear at such meeting or otherwise
cause the Subject Shares to be counted as present thereat for the purpose of establishing a quorum,
and respond to each request by the Company or Parent for written consent, if any, and (ii) vote (or
cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) in
favor of, and consent to (or cause to be consented to), the approval of (A) the Merger Agreement,
the Merger and each of the other transactions contemplated by the Merger Agreement, in each case
whether or not the Board of
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Directors of the Company recommends such approval, and (B) any “golden parachute” compensation
agreements and understandings subject to Section 14A(b)(1) of the Securities Exchange Act of 1934.
(b) At any meeting of the stockholders of the Company and at any postponement or adjournment
thereof or in any other circumstances upon which a vote, consent, adoption or other approval
(including by written consent solicitation) is sought, such Stockholder shall (i) when a meeting is
held, appear at such meeting or otherwise cause the Subject Shares to be counted as present thereat
for the purpose of establishing a quorum, and respond to each request by the Company or Parent for
written consent, if any, and (ii) vote (or cause to be voted) all the Subject Shares of such
Stockholder (owned of record or beneficially) against, and not consent to (and cause not to be
consented to), any of the following (or any agreement to enter into, effect, facilitate or support
any of the following): (A) any merger agreement or merger involving the Company or other
Acquisition Proposal (other than the Merger Agreement and the Merger), or other proposal, action or
transaction involving the Company or any of its Stockholders, which amendment or other proposal,
action or transaction could reasonably be expected to prevent or impede or interfere or delay the
consummation of the Merger or the other transactions contemplated by the Merger Agreement or the
consummation of the transactions contemplated by this Agreement, (B) any change in the Company’s
present capitalization or dividend policy or any amendment or other change to the Company’s
Certificate of Incorporation or Bylaws, or (C) any proposal for any recapitalization,
reorganization, liquidation, dissolution, amalgamation, merger, sale of assets or other business
combination between the Company and any other Person (other than the Merger), in each case whether
or not the Board of Directors of the Company recommends approval of such proposal, action or
transaction (collectively, “Frustrating Transactions”).
(c) Such Stockholder shall not (i) sell (constructively or otherwise), transfer, pledge,
assign, hypothecate, grant, encumber, gift, tender into any tender or exchange offer or otherwise
dispose of (whether by sale, merger, consolidation, liquidation, dissolution, dividend,
distribution or otherwise) (collectively, “Transfer”), or consent to or permit any Transfer
of, any Subject Shares or any interest therein, or enter into any Contract, option or other
arrangement with respect to the Transfer (including any profit sharing or other derivative
arrangement) of any Subject Shares or beneficial ownership or voting power thereof or therein, to
any Person other than pursuant to this Agreement or the Merger Agreement, unless prior to any such
Transfer the transferee of such Subject Shares enters into a voting agreement with Parent on terms
substantially identical to the terms of this Agreement, (ii) enter into any voting arrangement,
whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any
Acquisition Proposal or Frustrating Transaction with respect to any Subject Shares, other than
pursuant to this Agreement, or (iii) knowingly take any action that would make any representation
or warranty of such Stockholder contained herein untrue or have the effect of preventing or
disabling such Stockholder from performing its obligations under this Agreement; provided, however,
prior to the consummation of the Merger, Xxxxx X. XxXxxxx may Transfer record ownership of the
shares set forth on Schedule C hereto, in accordance with the transfer description set forth on
Schedule C hereto, provided and only to the extent that Xxxxx X. XxXxxxx remains the beneficial
owner of such shares following such Transfer. In the event of a Transfer in violation of this
provision, such Stockholder shall instruct the Company that such Transfer shall be void. Such
Stockholder understands and agrees that if such Stockholder attempts to
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Transfer, vote or provide any other person with the authority to vote any of the Subject
Shares, other than in compliance with this Agreement, such Stockholder shall instruct the Company
to not, (i) permit any such Transfer on its books and records, (ii) issue a new certificate
representing any of the Subject Shares or (iii) record any such vote unless and until such
Stockholder shall have complied with the terms of this Agreement.
(d) Such Stockholder hereby consents to and approves the actions taken by the Board of
Directors of the Company in approving the Merger Agreement and this Agreement, the Merger and the
other transactions contemplated by the Merger Agreement. The Stockholder hereby waives, and agrees
not to exercise or assert, any appraisal, dissenters’ or similar rights under Section 262 of
Delaware Law or other applicable law in connection with the Merger.
(e) In the event that a Stockholder acquires record or beneficial ownership of, or the power
to vote or direct the voting of, any additional securities of the Company or other voting interests
with respect to the Company, such securities or voting interests shall, without further action of
the parties, be subject to the provisions of this Agreement, and the number and kind of Subject
Shares held by such Stockholder set forth on Schedule A hereto will be deemed amended accordingly
and such securities or voting interests shall automatically become subject to the terms of this
Agreement. Such Stockholder shall promptly notify Parent and the Company of any such event.
(f) Prior to the Termination Date (as defined below), such Stockholder shall not, and shall
not authorize or permit to the extent applicable any of its Subsidiaries or any of its or their
respective directors, officers, employees, investment bankers, financial advisors, attorneys,
accountants and other advisors, agents and representatives, directly or indirectly, to:
(i) solicit, initiate, endorse, encourage or facilitate any inquiry, proposal or offer with
respect to, or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or
offer that is reasonably likely to lead to any Acquisition Proposal;
(ii) enter into, continue or otherwise participate in any discussions or negotiations
regarding, or furnish to any Person any information or data with respect to, or otherwise cooperate
in any way with, any Acquisition Proposal;
(iii) execute or enter into any agreement constituting or relating to any Acquisition
Proposal, or approve or recommend or propose to approve or recommend any Acquisition Proposal or
any Contract constituting or relating to any Acquisition Proposal (or authorize, propose or agree
to do any of the foregoing actions); or
(iv) make, or in any manner participate in, a “solicitation” (as such term is used in
the
rules of the SEC) of proxies or powers of attorney or similar rights to vote, or seek to advise or
influence any Person with respect to the voting of shares of capital stock of the Company intending
to facilitate any Acquisition Proposal or cause stockholders of the Company not to vote to approve
the Merger or any other transaction contemplated by the Merger Agreement.
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(g) Such Stockholder will immediately cease and cause to be terminated all existing
discussions or negotiations with any Person conducted heretofore with respect to any of the matters
described in Section 2(f) above.
3. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) Each Stockholder hereby irrevocably grants to, and appoints, Parent and Xxxxxxx X.
Xxxxxxx, Xxxxxx X. Xxxxxxx and Xxxxx X. Xxxxxx, in their respective capacities as officers or
authorized representatives of Parent, and any individual who shall hereafter succeed to any such
office of Parent, and each of them individually, and any individual designated in writing by any of
them, as such Stockholder’s irrevocable proxy and attorney-in-fact (with full power of
substitution), for and in the name, place and stead of such Stockholder, to vote all of such
Stockholder’s Subject Shares (owned of record or beneficially), or grant a consent or approval in
respect of such Subject Shares, (i) in favor of the approval of the Merger Agreement and the
approval of the terms thereof and of the Merger and each of the other transactions contemplated by
the Merger Agreement, (ii) against any Acquisition Proposal or any Frustrating Transaction and
(iii) otherwise in accordance with Section 2 of this Agreement. The proxy granted in this
Section 3 shall expire upon the termination of this Agreement. Such Stockholder
understands and acknowledges that Parent is entering into the Merger Agreement in material reliance
upon such Stockholder’s execution and delivery of this Agreement.
(b) Each Stockholder, severally and not jointly, represents that any proxies heretofore given
in respect of such Stockholder’s Subject Shares are not irrevocable, and such Stockholder hereby
revokes all such proxies.
(c) Each Stockholder hereby affirms that the irrevocable proxy set forth in this Section
3 is given in connection with the execution of the Merger Agreement, and that such irrevocable
proxy is given to secure the performance of the duties of the Stockholder under this Agreement.
Such Stockholder hereby further affirms that the irrevocable proxy is coupled with an interest and
may under no circumstances be revoked except as provided herein. Such irrevocable proxy is
executed and intended to be irrevocable in accordance with the provisions of Section 212 of
Delaware Law.
4. No Inconsistent Agreements. Each Stockholder hereby covenants and agrees that,
except as contemplated by this Agreement, such Stockholder (a) has not entered into, and shall not
enter into at any time prior to the Termination Date, any voting agreement or voting trust with
respect to any Subject Shares and (b) has not granted, and shall not grant at any time prior to the
date of termination of this Agreement, a proxy or power of attorney with respect to any Subject
Shares, in either case, that is inconsistent with such Stockholder’s obligations pursuant to this
Agreement.
5. Further Assurances. Each Stockholder shall take, or cause to be taken, all
actions, and to do, or cause to be done, and to assist and cooperate with the other parties in
doing, all things reasonably necessary, proper or advisable to consummate and make effective the
transactions contemplated by this Agreement. No Stockholder shall commit or agree to take any
action that would in any way limit the ability of such Stockholder to perform his, her or its
obligations under this Agreement. Without limiting the generality of the foregoing, each
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Stockholder shall, from time to time, execute and deliver, or cause to be executed and
delivered, such additional or further consents, documents and other instruments as Parent may
request for the purpose of effectuating the matters covered by this Agreement, including the grant
of the proxies set forth in Section 3.
6. Additional Matters. Each Stockholder agrees that this Agreement and the
obligations hereunder shall attach to such Stockholder’s Subject Shares and shall be binding upon
any Person to which legal or beneficial ownership of, or voting rights in respect of, such Subject
Shares shall pass, whether by operation of law or otherwise, including such Stockholder’s heirs,
devisees, guardians, administrators, or permitted successors or assigns, and each Stockholder
further agrees to take all actions reasonably necessary to effectuate the foregoing. In the event
of any stock split, stock dividend, reclassification, merger, reorganization, recapitalization or
other change in the capital structure of the Company affecting the capital stock of the Company,
the number and kind of Subject Shares listed on Schedule A hereto opposite the name of each
Stockholder shall be adjusted appropriately.
7. Assignment. Neither this Agreement nor any of the rights, interests or obligations
under this Agreement shall be assigned, in whole or in part, by operation of law or otherwise, by
either a Stockholder or Parent without the prior written consent of the other party. Any purported
assignment in violation of this Section 7 shall be null and void. Subject to the preceding
sentences of this Section 7, this Agreement shall be binding upon, inure to the benefit of
and be enforceable by, the parties hereto and their respective permitted successors and assigns.
8. Termination. This Agreement shall terminate upon the earlier of (i) the Effective
Time, (ii) the End Date and (iii) the termination of the Merger Agreement in accordance with its
terms; provided that the provisions set forth in Section 10, 11, and 13-15 shall survive the
termination of this Agreement; provided further, that any liability incurred by any party hereto as
a result of a breach of a term or condition of this Agreement prior to such termination shall
survive the termination of this Agreement. Nothing in this Section 8 shall relieve or
otherwise limit the liability of any party for breach of this Agreement prior to the termination of
this Agreement.
9. General Provisions.
(a) Amendments. This Agreement is between each Stockholder and Parent severally and
not jointly and may not be amended except by an instrument in writing signed by Parent and such
amending Stockholder. Any such amendment shall be effective only as to Parent and such amending
Stockholder.
(b) Notice. All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed given if delivered personally, telecopied (with
confirmation) or sent by overnight or same-day courier (providing proof of delivery) to Parent in
accordance with Section 11.01 of the Merger Agreement and to the Stockholders at their respective
addresses set forth on Schedule A hereto (or at such other address for a party as shall be
specified by like notice).
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(c) Interpretation. When a reference is made in this Agreement to a Section or a
Schedule, such reference shall be to a Section of, or a Schedule to, 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.” The words “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 term “or” is not exclusive. The definitions
contained in this Agreement are applicable to the singular as well as the plural forms of such
terms. References herein to the masculine, feminine or neuter gender shall include all genders.
Any agreement or instrument defined or referred to herein or in any agreement or instrument that is
referred to herein means such agreement or instrument as from time to time amended, modified or
supplemented. References to a Person are also to his, her or its permitted successors and assigns.
(d) Counterparts; Effectiveness. This Agreement may be executed in counterparts
(including by facsimile or by PDF file), all of which shall be considered one and the same
agreement. This Agreement shall become effective by a Stockholder against Parent when one or more
counterparts have been signed by Parent and delivered to such Stockholder. This Agreement shall
become effective against any Stockholder when one or more counterparts have been executed by such
Stockholder and delivered to Parent. Each party need not sign the same counterpart. The
effectiveness of this Agreement shall be conditioned upon the execution and delivery of the Merger
Agreement by each of the parties named therein as a party thereto.
(e) Entire Agreement; No Third-Party Beneficiaries. This Agreement (including the
documents and instruments referred to herein) (i) constitutes the entire agreement and supersedes
all prior and contemporaneous agreements and understandings, both written and oral, among the
parties hereto with respect to the subject matter of this Agreement and (ii) is not intended to
confer upon any Person other than the parties hereto and their respective successors and permitted
assigns any rights or remedies.
(f) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO ANY PRINCIPLES OF CONFLICTS OF LAWS OF
SUCH STATE.
(g) Severability. If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law or public policy, all other conditions
and provisions of this Agreement shall nevertheless remain in full force and effect. Upon such
determination that any term or other provision is invalid, illegal or incapable of being enforced,
the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible to the fullest extent permitted by applicable
law in an acceptable manner and to the end that the transactions contemplated hereby are fulfilled
to the extent possible.
(h) Voidability. If prior to the execution hereof, the Board of Directors of the
Company shall not have duly and validly authorized and approved by all necessary corporate
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action, this Agreement, the Merger Agreement and the transactions contemplated hereby and
thereby, so that by the execution and delivery hereof Parent or Merger Sub would become, or could
reasonably be expected to become, an “interested Stockholder” with whom the Company would be
prevented for any period pursuant to Section 203 of Delaware Law from engaging in any “business
combination” (as such terms are defined in Section 203 of Delaware Law), then this Agreement shall
be void and unenforceable until such time as such authorization and approval shall have been duly
and validly obtained.
(i) Waiver. No failure or delay of any party in exercising any right or remedy
hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such
right or power, or any abandonment or discontinuance of steps to enforce such right or power, or
any course of conduct, preclude any other or further exercise thereof or the exercise of any other
right or power. 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. Any agreement on
the part of a party to any such waiver shall be valid only if set forth in a written instrument
executed and delivered by such party.
10. Enforcement. The parties agree that irreparable damage would occur in the event
that any of the provisions of this Agreement were not performed in accordance with their specific
terms or were otherwise breached for which a monetary remedy would be inadequate. 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 of this Agreement
in any federal court located in the State of Delaware or any Delaware state court, in addition to
any other remedy to which they are entitled at law or in equity. Each of the parties hereby
further waives (a) any defense in any action for specific performance that a remedy at law would be
adequate and (b) any requirement under any law to post security as a prerequisite to obtaining
equitable relief.
11. Submission to Jurisdiction. The parties hereto agree that any suit, action or
proceeding seeking to enforce any provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated hereby shall be brought in the
Delaware Court of Chancery or, if such court shall not have jurisdiction, any federal court sitting
in Delaware, so long as one of such courts shall have subject matter jurisdiction over such suit,
action or proceeding, and that any cause of action arising out of this Agreement shall be deemed to
have arisen from a transaction of business in the State of Delaware, and each of the parties hereby
irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate courts
therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent
permitted by law, any objection that he, she or it may now or hereafter have to the laying of the
venue of any such suit, action or proceeding in any such court or that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum. Process in any
such suit, action or proceeding may be served on any party anywhere in the world, whether within or
without the jurisdiction of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 9(b) of this Agreement shall be
deemed effective service of process on such party.
12. Stockholder Capacity. No Person executing this Agreement who is or becomes during
the term hereof a director or officer of the Company makes any agreement or
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understanding herein in his or her capacity as such director or officer. Each Stockholder
signs solely in his or her capacity as the record holder and beneficial owner of, or the trustee of
a trust whose beneficiaries are the beneficial owners of, such Stockholder’s Subject Shares and
nothing herein shall limit or affect any actions taken or proposed to be taken by a Stockholder, or
any partner, employee, agent or representative of a Stockholder, in his or her capacity as an
officer or director of the Company, including in connection with engaging in actions permitted
under Section 6.02 of the Merger Agreement.
13. WAIVER OF JURY TRIAL. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
14. No Presumption Against Drafting Party. Each of the parties to this Agreement
acknowledges that he, she or it has been represented by counsel in connection with this Agreement
and the transactions contemplated by this Agreement. Accordingly, any rule of law or any legal
decision that would require interpretation of any claimed ambiguities in this Agreement against the
drafting party has no application and is expressly waived.
15. Confidentiality. Each Stockholder agrees (a) to hold any non-public information
regarding this Agreement and the Merger in strict confidence and (b) except as required by law or
legal process not to divulge any such non-public information to any third Person.
16. Disclosure. Each Stockholder hereby authorizes Parent and the Company to publish
and disclose in any announcement or disclosure required by the SEC and in the Company Proxy
Statement such Stockholder’s identity and ownership of the Subject Shares and the nature of such
Stockholder’s obligations under this Agreement.
Signature Pages Follow
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IN WITNESS WHEREOF, Parent has caused this Agreement to be signed by its officer thereunto
duly authorized and each Stockholder has signed this Agreement, all as of the date first written
above.
| XXXXXXXX INCORPORATED |
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| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | President and Chief Executive Officer | |||
[Signature page of the Stockholders follow]
Signature Page to Voting Agreement
IN WITNESS WHEREOF, the undersigned Stockholders have signed this Agreement, all as of the
date first written above.
/s/ Xxxxx X. XxXxxxx
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/s/ Xxxxx X. Xxxxxxxxx |
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/s/ Xxxxxx X. Xxxxxxxxxx
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/s/ Xxxxxxx X. Xxxxxx
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/s/ Xxxxxx X. Xxxxx
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/s/ Xxxx X. Xxxxxxx
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/s/ Xxxxx XxXxxxx
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/s/ Xxxx X. Xxxxxxxx, Xx.
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Signature Page to Voting Agreement
Schedule A
| Shares | ||||||
| Subject | ||||||
| to Voting | ||||||
| Stockholder | Address | Agreement | ||||
Xxxxx X. XxXxxxx |
#1 Xxxxxxx Xxxx | 1,214,454 | ||||
| Xx. Xxxxx, XX 00000 | ||||||
Xxxxx X. Xxxxxxxxx |
000 Xxxxxxx Xxxx Xx. | 000,000 | ||||
| Xxxxxxxxxx, XX 00000 | ||||||
Xxxxxx X. Xxxxxxxxxx |
000 Xxxxxxxxx Xxxxxx | 000,000 | ||||
| Xx. Xxxxx, XX 00000 | ||||||
Xxxxxxx X. Xxxxxx |
00000 Xxxxxxxxxx Xx. | 16,602 | ||||
| Xxxxxxxxx, XX 00000 | ||||||
Xxxxxx X. Xxxxx |
0000 Xxxxxx Xx. | 00,000 | ||||
| Xxxxxxxx Xxxx, XX 00000 | ||||||
Xxxx X. Xxxxxxx |
0000 Xxxx Xxx Xxxxxx | 00,000 | ||||
| Xxxxxx, XX 00000 | ||||||
Xxxxx XxXxxxx |
c/o Plancorp LLC | 1,116,321 | ||||
| 000 Xxxxxxxxx Xxxxxx Xx. | ||||||
| Xxxxx 000 | ||||||
| Xx Xxxxx, XX 00000 | ||||||
| Attn: Xxxxxxxx X XxXxxxx | ||||||
Xxxx X. Xxxxxxxx, Xx. |
0000 Xxxxxxx Xxxxx | 000,000 | ||||
| Xxxxxxx, XX 00000 | ||||||
Schedule B
| Shares | Shares | Shares Subject | ||||||||||
| Currently | Potentially | to Voting | ||||||||||
| Held | Transferred | Agreement | ||||||||||
Xxxxxxx XxXxxxx |
5,000 | (5,000 | ) | 0 | ||||||||
Xxxxxx XxXxxxx GST Exempt Trust
FBO Xxxxxx X. XxXXxxx |
193,746 | (13,000 | ) | 180,746 | ||||||||
Xxxxxx XxXxxxx GST Exempt Trust
FBO Xxxxx X. Xxxxxx |
193,746 | (13,000 | ) | 180,746 | ||||||||
Xxxxxx XxXxxxx GST Exempt Trust
FBO Xxx X. XxXxxxx |
193,747 | (13,000 | ) | 180,747 | ||||||||
Xxxxxx XxXxxxx GST Exempt Trust
FBO Xxxxxx X. XxXxxxx III |
193,746 | (13,000 | ) | 180,746 | ||||||||
Xxxxxx XxXxxxx GST Exempt Trust
FBO Xxxxx X. XxXxxxx |
212,754 | (13,000 | ) | 199,754 | ||||||||
Xxxxxx XxXxxxx GST Exempt Trust
FBO Xxxx X. XxXxxxx |
193,746 | (13,000 | ) | 180,746 | ||||||||
Xxxxxx XxXxxxx Non GST Exempt Trust
FBO Xxxxx X. Xxxxxx |
7,836 | 7,836 | ||||||||||
| 1,194,321 | (83,000 | ) | 1,111,321 | |||||||||
Schedule C
| Stockholder | Shares to be Transferred | |||
Xxxxx X. XxXxxxx Trust U/A DTD 7/10/1996 |
256,944 | (1) | ||
Xxxxx X. XxXxxxx XxXxxxx Inc. Retirement Savings
Plan (401k) |
231,854 | (2) | ||
| (1) | Certain shares to be transferred to Charitable Remainder Trust prior to the consummation of the Merger with Xxxxx X. XxXxxxx maintaining voting power over such shares | |
| (2) | Shares to be withdrawn from XxXxxxx, Inc. Retirement Savings Plan 401(k) plan and reissued in the individual name of Xxxxx X. XxXxxxx prior to the consummation of the Merger with Xxxxx X. XxXxxxx maintaining voting power over such shares |
