VOTING AND STOCK OPTION AGREEMENT
VOTING AND STOCK OPTION AGREEMENT (this "Agreement"), dated as of
October 2, 2000, by and between Minnesota Mining and Manufacturing Company,
a Delaware corporation ("Parent"), Xxxxxxxx Xxxxxx, Inc., an Indiana
corporation (the "Company"), and the Stockholders listed on Schedule A
hereto (collectively, the "Stockholders").
RECITALS
A. Parent, Barbados Acquisition, Inc., ("Merger Sub") an Indiana
Corporation and wholly owned Subsidiary of Parent, and the Company, are
entering into an Agreement and Plan Merger of even date herewith (the
"Merger Agreement") providing for a business combination between Parent and
the Company.
B. As of the date of this Agreement, the Stockholders own
beneficially and of record the Common Shares of the Company ("Company
Common Shares") set forth opposite their respective names on Schedule A
(Company Common Shares owned by each Stockholder are referred to as such
Stockholder's "Owned Shares").
C. Subject to the terms and conditions of the Merger Agreement,
the Stockholders will receive shares ("Parent Shares") of the Parent's
common stock, par value $0.01 per share ("Parent Common Stock") in exchange
for the Shares (as defined in Section 1) held by them at the Effective
Time.
D. As an inducement and a condition to Parent's willingness to
enter into the Merger Agreement, Parent, the Company and the Stockholders
are entering into this Agreement.
E. Capitalized terms not defined herein shall have the meanings
set forth in the Merger Agreement.
F. This Agreement and the Merger Agreement are being entered into
simultaneously.
NOW, THEREFORE, in consideration of the execution and delivery by
Parent of the Merger Agreement and the mutual covenants, conditions and
agreements contained herein and therein, and intending to be legally bound
hereby, the parties agree as follows:
1. Voting Agreement. Each Stockholder agrees in accordance with
Section 23-1-32-1 of the IBCL that, at any meeting of the stockholders of
the Company (a "Company Stockholders' Meeting"), however called, and at
every adjournment or postponement thereof, he, she or it shall (i) appear
at the meeting or otherwise cause his, her or its Owned Shares, together
with any Company Common Shares acquired by the Stockholder after the date
of this Agreement whether upon the exercise of options or warrants
conversion of convertible securities or otherwise (the Stockholder's
acquired shares, together with the Stockholder's Owned Shares, are referred
to as the Stockholder's "Shares"), to be counted as present thereat for
purposes of establishing a quorum, (ii) vote, or execute consents in
respect of, his, her or its Shares, or cause his, her or its Shares to be
voted, or consents to be executed in respect thereof, in favor of the
approval and adoption of the Merger Agreement, and any action required in
furtherance thereof and (iii) for the period commencing the date hereof and
ending 90 days after the date of termination of the Merger Agreement, vote,
or execute consents in respect of, his, her or its Shares, or cause his,
her or its Shares to be voted, or consents to be executed in respect
thereof, against any agreement or transaction relating to any Acquisition
Proposal presented for the Stockholders of the Company or in respect of
which vote of consent of the Stockholder is requested or sought.
2. Irrevocable Proxy. As security for the Stockholders'
obligations under Section 1, each of the Stockholders hereby irrevocably
constitutes and appoints Parent as his, her or its attorney and proxy in
accordance with the provisions of Section 23-1-30-3 of the IBCL, with full
power of substitution and resubstitution, to cause the Stockholder's shares
to be counted as present at any Company Stockholders Meetings to vote his,
her or its Shares at any Company Stockholders' Meeting, however called, and
execute consents in respect of his, her or its shares as and to the extent
provided in Section 1. THIS PROXY AND POWER OF ATTORNEY IS IRREVOCABLE AND
COUPLED WITH AN INTEREST. Each Stockholder hereby revokes all other proxies
and powers of attorney with respect to his, her or its Shares that he, she
or it may have heretofore appointed or granted, and no subsequent proxy or
power of attorney shall be granted (and if granted, shall not be effective)
by any Stockholder with respect thereto, other than for the sole purpose of
voting Shares as contemplated by, or other than in a manner inconsistent
with the Stockholders obligations under Section 1.
3. Option. (a) Subject to the terms and conditions set forth in
this Agreement, each of the Stockholders hereby grants to Parent an
irrevocable option (the "Option") to purchase (i) the number of Shares set
forth next to such Stockholder's name on Exhibit A hereto (as adjusted as
set forth herein) and any other Shares owned by such Stockholder
beneficially or acquired after the date of this Agreement, at a purchase
price of $19.00 (as adjusted as set forth herein) per Share (the "Purchase
Price").
(b) The Option may be exercised by Parent, in whole at any time
prior to the earlier of (i) the date upon which the Effective Time (as
defined in the Merger Agreement) occurs and (ii) the date fifteen business
days after the date of termination of the Merger Agreement.
(c) In the event that Parent wishes to exercise the Option, it
shall send to the Stockholders a written notice (the date of each such
notice being herein referred to as a "Notice Date") to that effect, which
notice also specifies a date not earlier than three business days nor later
than 30 business days from the Notice Date for the closing of such purchase
(an "Option Closing Date"); provided, however, that (i) if the closing of a
purchase and sale pursuant to the Option (an "Option Closing") cannot be
consummated by reason of any applicable judgment, decree, order, law or
regulation, the period of time that otherwise would run pursuant to this
sentence shall run instead from the date on which the restriction on
consummation has expired or been terminated and (ii) without limiting the
foregoing, if prior notification to or approval of any regulatory authority
is required in connection with the purchase, Parent and the Stockholders
shall promptly file the required notice or application for approval and
shall cooperate in the expeditious filing of such notice or application,
and the period of time that otherwise would run pursuant to this sentence
shall run instead from the date on which, as the case may be, (A) any
required notification period has expired or been terminated or (B) any
required approval has been obtained, and in either event, any requisite
waiting period has expired or been terminated. Each of Parent and the
Stockholders agrees to use commercially reasonable efforts to cooperate
with and provide information to the other, for the purpose of any required
notice or application for approval. Any exercise of the Option shall be
deemed to occur on the Notice Date relating thereto. The place of any
Option Closing shall be at the offices of Parent, 0X Xxxxxx, Xx Xxxx, XX
00000 and the time of the Option Closing shall be 10:00 a.m. (Central Time)
on the applicable Option Closing Date.
(d) At any Option Closing, Parent shall pay to each Stockholder
in immediately available funds by wire transfer to a bank account
designated in writing by such Stockholder an amount equal to the Purchase
Price multiplied by the number of Shares being delivered by such
Stockholder; provided, that failure or refusal of any Stockholder to
designate a bank account shall not preclude Parent from exercising the
Option, in whole or in part.
(e) At any Option Closing, simultaneously with the delivery of
immediately available funds as provided above, each Stockholder shall
deliver to Parent a certificate or certificates representing its pro rata
portion of the Shares to be purchased at such Option Closing, which Shares
shall be free and clear of all liens, claims, charges and encumbrances of
any kind whatsoever.
(f) In the event of any change in the Company Common Shares by
reason of a stock dividend, split-up, merger, recapitalization,
combination, exchange of shares or similar transaction, the type and number
of Shares subject to the Option, and the Purchase Price therefor, shall be
adjusted appropriately, so that Parent shall receive upon exercise of the
Option the number and class of shares or other securities or property that
Parent would have received in respect of the Option Shares if the Option
had been exercised immediately prior to such event or the record date
therefor, as applicable.
4. Registration Rights. The Company shall, if requested by Parent
at any time and from time to time within two years after the date of first
exercise of the Option, as expeditiously as possible prepare and file up to
two registration statements under the Securities Act if such registration
is necessary in order to permit the sale or other disposition of any or all
securities that have been acquired by exercise by Parent of the Option, in
accordance with the intended method of sale or other disposition stated by
Parent, including a "shelf" registration statement under Rule 415 under the
Securities Act or any successor provision; and the Company shall use
commercially reasonable efforts to qualify such securities under any
applicable state securities laws. Parent agrees to use reasonable best
efforts to cause, and to cause any underwriters of any sale or other
disposition to cause, any sale or other disposition pursuant to such
registration statement to be effected on a widely distributed basis. The
Company shall use reasonable best efforts to cause each such registration
statement to become effective, to obtain all consents or waivers of other
parties which are required therefor, and to keep such registration
statement effective for such period not in excess of 90 calendar days from
the day such registration statement first becomes effective as may be
reasonably necessary to effect such sale or other disposition. The
obligations of the Company to file a registration statement and to maintain
its effectiveness may be suspended for one or more periods of time not
exceeding 90 calendar days in the aggregate with respect to any
registration statement if the Board of Directors of the Company shall have
determined that the filing of such registration statement or the
maintenance of its effectiveness would require disclosure of nonpublic
information that would materially and adversely affect the Company or would
interfere with a planned merger, sale of material assets, recapitalization
or other significant corporate action (other than the issuance of equity
securities). Any registration statement prepared and filed under this
Section 4, and any sale covered thereby, shall be at the Company's expense
except for underwriting discounts or commissions and brokers' fees, which
shall be borne solely by Parent. Parent shall provide in writing all
information reasonably requested by the Company for inclusion in any
registration statement to be filed hereunder. If, during the time periods
referred to in the first sentence of this Section, the Company effects a
registration under the Securities Act of the Company's equity securities
for its own account or for any other of its stockholders (other than on
Form S-4 or Form S-8, or any successor form), it shall allow Parent the
right to participate in such registration; provided however, that, if the
managing underwriters of such offering advise the Company that in their
opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering on a
commercially reasonable basis, priority shall be given to the securities
intended to be included therein by the Company for its own account and,
thereafter, the Company shall include the securities requested to be
included therein by Parent pro rata with the securities intended to be
included therein by other stockholders of the Company. In connection with
any registration pursuant to this Section, Parent and the Company shall
provide each other and any underwriter of the offering with customary
representations, warranties, covenants, indemnification, and contribution
in connection with such registration.
5. Representations and Warranties of Parent. Parent represents
and warrants to the Stockholders as follows:
(a) Organization; Due Authorization; Enforceability. Parent is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware. Parent has full corporate power and
authority to execute and deliver this Agreement. The execution and delivery
of this Agreement and the consummation of the transactions contemplated
hereby have been duly and validly authorized by the Board of Directors of
Parent, and no other corporate proceedings on the part of Parent are
necessary to authorize this Agreement or to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by Parent and constitutes a valid and binding agreement of
Parent, enforceable against Parent in accordance with its terms, subject to
applicable bankruptcy, insolvency, moratorium or other similar laws
relating to creditors' rights and to general principles of equity.
(b) No Conflicts. No authorization, consent or approval of, or
filing with, any court or any public body or authority is necessary for the
consummation by Parent of the transactions contemplated by this Agreement.
The execution, delivery and performance of this Agreement by Parent will
not constitute a breach, violation or default (or any event which, with
notice or lapse of time or both, would constitute a default) under, or
result in the termination of, or accelerate the performance required by, or
result in a right of termination or acceleration under, or result in the
creation of any lien or encumbrance upon any of the properties or assets of
Parent under, any note, bond, mortgage, indenture, deed of trust, license,
lease, agreement or other instrument to which Parent is a party or by which
its properties or assets are bound, other than breaches, violations,
defaults, terminations, accelerations or creation of liens and encumbrances
which, in the aggregate, would not materially impair the ability of Parent
to perform its obligations hereunder.
(c) Brokers. No broker, finder or investment banker is entitled
to any brokerage, finder's or other fee or commission in connection with
the transactions contemplated hereby based upon arrangements made by or on
behalf of Parent.
6. Representations and Warranties of the Stockholders. Each
Stockholder hereby severally and not jointly represents and warrants to
Parent as follows:
(a) Organization; Due Authorization; Enforceability. If the
Stockholder is a corporation or other entity, the Stockholder is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization. The Stockholder has full power and
authority to execute and deliver this Agreement. The execution and delivery
of this Agreement and the consummation of the transactions contemplated
hereby have been duly and validly authorized by all necessary action on the
part of the Stockholder, and no other proceedings on the part of the
Stockholder are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by the Stockholder and constitutes a valid and
binding agreement of the Stockholder, enforceable against such Stockholder
in accordance with its terms, subject to applicable bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights and to
general principles of equity.
(b) Ownership of Shares of Company Common Shares; Voting Rights.
Except as set forth on Schedule A, the Stockholder owns, of record and
beneficially, the shares of Company Common Shares set forth opposite the
Stockholder's name on Schedule A. The Stockholder has sole voting power
with respect to his, her or its Owned Shares. Except pursuant to this
Agreement or as set forth on Schedule A, the Stockholder's Owned Shares and
the Shares are not subject to any voting trust agreement or other contract,
agreement, arrangement, commitment or understanding restricting or
otherwise relating to the voting, dividend rights or disposition of such
Owned Shares. Upon the exercise of the Option and the delivery to Parent by
Stockholder of a certificate or certificates evidencing the Shares, Parent
will receive good, valid and marketable title to the Shares, free and clear
of all security interests, liens, claims, pledges, options, rights of first
refusal, agreements, limitations on Parent's voting rights, charges and
other encumbrances of any nature whatsoever.
(c) No Conflicts. No authorization, consent or approval of, or
filing with, any court or any public body or authority is necessary for the
consummation by such Stockholder of the transactions contemplated by this
Agreement. The execution, delivery and performance of this Agreement by
such Stockholder will not constitute a breach, violation or default (or any
event which, with notice or lapse of time or both, would constitute a
default) under, or result in the termination of, or accelerate the
performance required by, or result in a right of termination or
acceleration under, or result in the creation of any lien or encumbrance
upon any of the properties or assets of such Stockholder under, any note,
bond, mortgage, indenture, deed of trust, license, lease, agreement or
other instrument to which such Stockholder is a party or by which his, her
or its properties or assets are bound, other than breaches, violations,
defaults, terminations, accelerations or creation of liens and encumbrances
which, in the aggregate, would not materially impair the ability of such
Stockholder to perform his, her or its obligations hereunder.
(d) Brokers. No broker, finder or investment banker is entitled
to any brokerage, finder's or other fee or commission in connection with
the transactions contemplated hereby based upon arrangements made by or on
behalf of the Stockholder.
7. Representations and Warranties of the Company. The Company
represents and warrants to Parent as follows:
(a) Organization; Due Authorization; Enforceability. The Company
is a corporation duly organized, validly existing and in good standing
under the laws of the State of Indiana. The Company has full corporate
power and authority to execute and deliver this Agreement. The execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by the Board of
Directors of the Company, and no other corporate proceedings on the part of
the Company are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by the Company and constitutes a valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, subject to applicable bankruptcy, insolvency, moratorium or
other similar laws relating to creditors' rights and to general principles
of equity.
(b) No Conflicts. No authorization, consent or approval of, or
filing with, any court or any public body or authority is necessary for the
consummation by the Company of the transactions contemplated by this
Agreement. The execution, delivery and performance of this Agreement by the
Company will not constitute a breach, violation or default (or any event
which, with notice or lapse of time or both, would constitute a default)
under, or result in the termination of, or accelerate the performance
required by, or result in a right of termination or acceleration under, or
result in the creation of any lien or encumbrance upon any of the
properties or assets of the Company under, any note, bond, mortgage,
indenture, deed of trust, license, lease, agreement or other instrument to
which the Company is a party or by which its properties or assets are
bound, other than breaches, violations, defaults, terminations,
accelerations or creation of liens and encumbrances which, in the
aggregate, would not materially impair the ability of the Company to
perform its obligations hereunder.
(c) Brokers. No broker, finder or investment banker is entitled
to any brokerage, finder's or other fee or commission in connection with
the transactions contemplated hereby based upon arrangements made by or on
behalf of the Company.
(d) State Takeover Statutes. The Board of Directors of the
Company has approved the Merger and this Agreement and such approval is
sufficient to render inapplicable to the Merger, this Agreement and the
transactions contemplated by this Agreement, the provisions of IC 23-1-43
to the extent, if any, such section is applicable to the transactions
contemplated by this Agreement. The Board of Directors of the Company has
amended the bylaws of the Company so as to render inapplicable to this
Agreement the provisions of IC 23-1-42. To the Company's knowledge, no
other state takeover statute or similar statute or regulation applies to
the transactions contemplated hereby.
(e) Rights Agreement. No "Distribution Date" or "Triggering
Event" (as such terms are defined in the Rights Agreement, dated as of
April 21, 1998, between the Company and Compushare Investor Services, LLC,
as successor rights agent, as amended (the "Rights Agreement")) has
occurred as of this date. This Agreement, and the consummation of the
transactions contemplated hereunder have been approved by at least
two-thirds (2/3) of the Disinterested Directors (as defined in the Rights
Agreement). The Rights Agreement has been amended so that neither the
execution or delivery of this Agreement, nor the exchange of the Company
Common Shares for the shares of Parent Common Stock and cash in accordance
with Article II of the Merger Agreement will cause (A) the Rights issued
pursuant to the Rights Agreement to become exercisable under the Rights
Agreement, (B) Parent or Merger Sub to be deemed an "Acquiring Person" (as
defined in the Rights Agreement), or (C) the "Shares Acquisition Date" or a
"Triggering Event" (each as defined in the Rights Agreement) to occur upon
any such event. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not result in the
ability of any Person to exercise any Rights or cause the Rights to
separate from the shares of Company Common Shares to which they are
attached or to be triggered or become exercisable.
8. Stockholder Covenants. Each Stockholder hereby severally
covenants and agrees as follows:
(a) Each Stockholder hereby agrees, during the period commencing
on the date hereof and ending 90 days after the termination of the Merger
Agreement, except as contemplated hereby, not to sell, transfer, pledge,
encumber, assign or otherwise dispose of, or enter into any contract,
option or other arrangement or understanding with respect to the sale,
transfer, pledge, encumbrance, assignment or other disposition of (all of
the foregoing, "Sell", "Sold" or "Sale", as the case may be), any of the
Owned Shares or Shares, provided, however, that such Stockholder may
transfer, pledge, encumber, assign or otherwise dispose the Owned Shares or
Shares as a gift, in which case, as a condition of the gift, the
Stockholder must require the person to which any such Owned Shares or
Shares are to be transferred, pledged, encumbered, assigned or otherwise
disposed of to agree in writing, pursuant to an agreement reasonably
satisfactory to Parent to which Parent is an express third-party
beneficiary, that with respect to such Owned Shares or Shares such person
shall be subject to the restrictions and obligations hereunder as if such
person was a Stockholder hereunder, (ii) not to grant any proxies, powers
of attorney or other authorization or consent, deposit any shares of
capital stock of the Company into a voting trust or enter into a voting
agreement with respect to any such Shares and (iii) not to take any action
that would make any representation or warranty of such Stockholder
contained in this Agreement untrue or incorrect or have the effect of
preventing or disabling such Stockholder from performing his, her or its
obligations under this Agreement.
(b) Such Stockholder hereby agrees, during the period commencing
on the date hereof and ending 90 days after the termination of the Merger
Agreement, to promptly notify Parent of the number of new shares of capital
stock of the Company acquired by such Stockholder, if any, after the date
of this Agreement.
(c) Such Stockholder shall immediately cease any discussions or
negotiations with any parties other than Parent that may be ongoing with
respect to an Acquisition Proposal. For so long as Section 5.2 of the
Merger Agreement is in effect, such Stockholder shall not (i) solicit,
initiate or encourage any inquiries or the making of any Acquisition
Proposal, or (ii) participate in any discussions or negotiations regarding
any Acquisition Proposal, except to the extent such discussions or
negotiations are participated in by the Stockholder in his or her capacity
as a director of the Company in accordance with the terms of the Merger
Agreement.
9. Non Competition; Non-Solicitation.
(a) Upon the terms and subject to the conditions set forth in
this Section 9, each Stockholder covenants and agrees that, as a material
consideration running to Parent for the Parent entering into the Merger
Agreement, for a period of five years from and after the earlier of the
exercise of the Option hereunder or the Effective Time, each Stockholder
will not engage in any business directly or indirectly in competition with
the business as carried on, or as proposed to be carried on, by the Company
or its subsidiaries or affiliates on the earlier of the exercise of the
Option hereunder or the Effective Time, in the United States of America, or
in any country or political subdivision of the world in which the Business
is located or conducts business.
(b) The term of the covenant contained in Section 9(a) hereof
shall be tolled with respect to any Stockholder for the period commencing
on the date any successful action is filed for injunctive relief or damages
arising out of a breach by such Stockholder of Section 9(a) hereof and
ending upon final adjudication (including appeals) of such action.
(c) If, in any judicial proceeding, the court shall refuse to
enforce the covenant contained in Section 9(a) hereof because the time
limit is too long, it is expressly understood and agreed between the
parties hereto that for purposes of such proceeding such time limitation
shall be deemed reduced to the extent necessary to permit enforcement of
such covenant. If, in any judicial proceeding, the court shall refuse to
enforce the covenant contained in Section 9(a) hereof because it is more
extensive (whether as to geographic area, scope of business or otherwise)
than necessary to protect the business and goodwill of Parent, it is
expressly understood and agreed between the parties hereto that for
purposes of such proceeding the geographic area, scope of business or other
aspect shall be deemed reduced to the extent necessary to permit
enforcement of such covenant.
(d) Each Stockholder acknowledges that a breach of Section 9(a)
hereof would cause irreparable damage to Parent, and in the event of each
Stockholder's actual or threatened breach of the provisions of Section 9(a)
hereof, Parent shall be entitled to a temporary restraining order and an
injunction restraining each Stockholder from breaching such covenants
without the necessity of posting bond or proving irreparable harm, such
being conclusively admitted by each Stockholder. Nothing shall be construed
as prohibiting Parent from pursuing any other available remedies for such
breach or threatened breach, including the recovery of damages from each
Stockholder.
(e) Each Stockholder covenants and agrees that, for a period of
one year, following the earlier of the exercise of the Option hereunder or
the Effective Time, he or she will not, and will cause his or her
affiliates not to, directly or indirectly, solicit for employment any
employee of the Company or any of its affiliates who is engaged in the
business of the Company and was an employee of the Company as of the date
hereof to become an employee or otherwise provide services to such
Stockholder or any of its affiliates.
10. Miscellaneous.
(a) Fees and Expenses. Except as otherwise provided in the Merger
Agreement, all costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be borne by the
party incurring such expenses.
(b) Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties.
(c) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF INDIANA, WITHOUT
REGARD TO ITS CONFLICT OF LAWS RULES OR PRINCIPLES.
(d) Notices. All notices or other communications under this
Agreement shall be in writing and shall be given (and shall be deemed to
have been duly given upon receipt) by delivery in person, by cable,
telegram, telex or other standard form of telecommunications, or by
registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
If to a Stockholder:
to the address set
forth beneath the name
of such Stockholder on
Schedule A
If to Parent:
Minnesota Mining and Manufacturing Company
0X Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: General Counsel
With a copy to:
Minnesota Mining and Manufacturing Company
0X Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxx Xxxxxx
with a further copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx, Esq.
Telecopy No.: (000) 000-0000
If to the Company:
To the address set
forth in the Merger Agreement
or to such other address
as any party may have furnished
to the other parties in writing in
accordance with this Section.
(e) Assignment; Binding Effect; No Third Party Beneficiaries.
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 party. Subject to the preceding sentence, this Agreement (including
the obligations of each Stockholder under Sections 1 and 2 hereof) 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.
(f) ENFORCEMENT. THE PARTIES HERETO 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. IT IS ACCORDINGLY AGREED THAT, SUBJECT TO THE NEXT SENTENCE, 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 COURT OF THE UNITED STATES OR ANY STATE HAVING
JURISDICTION, THIS BEING IN ADDITION TO ANY OTHER REMEDY TO WHICH THEY ARE
ENTITLED AT LAW OR IN EQUITY.
(g) 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.
IN WITNESS WHEREOF, Parent and the Stockholders have caused this
Agreement to be duly executed as of the day and year first above written.
Minnesota Mining and
Manufacturing Company
By: /s/ Xxxxxx X. Xxxxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Vice President, Finance and
Administrative Services
XXXXXXXX XXXXXX, INC.
By: /s/ Xxxxx X. Xxxxx
---------------------------------------
Name: Xxxxx X. Xxxxx
Title: President and CEO
STOCKHOLDERS
/s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxxx
/s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxx
---------------------------------------
Xxxxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxx
---------------------------------------
Xxxxx X. Xxxxx
SCHEDULE A
STOCKHOLDER OPTIONS SHARES
----------- ------- ------
Xxxxxx X. Xxxxxxxx -0- 1,115,360
000 Xxxxxxxx Xxxxx Xxxx
Xxxxxx Xxxxxxx, XX 00000
Xxxxx X. Xxxxxxxx 34,000 280,741
0000 Xxxxx Xxxx 00
Xxxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxx 88,000 37,099
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Xxxxx X. Xxxxx 97,650 162,451
000 Xxxxxx Xxx
Xxxxxxxxxxx, XX 00000
