FORM OF
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement"), dated as of June 13,
1999, is made by and between Fox Xxxxx Medic Acquisition Corporation, a Texas
corporation ("Purchaser"), and the undersigned shareholder (the "Shareholder")
of Maxxim Medical, Inc., a Texas corporation ("Maxxim" or the "Company").
WHEREAS, concurrently herewith, Purchaser and the Company are
entering into an Agreement and Plan of Merger, of even date herewith (the
"Merger Agreement"), which provides that, among other things, upon the terms and
subject to the conditions thereof, (a) Purchaser will be merged (the "Merger")
with and into the Company, with the Company as the surviving corporation, and
(b) each outstanding share of common stock, $0.001 par value, of the Company
(together with the associated Preferred Share Purchase Rights issued pursuant to
the Rights Agreement, dated as of July 10, 1997, by and between the Company and
Xxxxxx Trust and Savings Bank as rights agent, the "Company Common Stock") shall
(except for certain shares of Company Common Stock referred to in Sections
1.8(a), 1.8(b) and 1.8(c) of the Merger Agreement, and except for any Dissenting
Shares (as defined in the Merger Agreement)) be converted into the right to
receive $26.00 in cash.
WHEREAS, the Shareholder beneficially owns a number of shares of
Company Common Stock and a number of options to purchase shares of Company
Common Stock, in each case as set forth on the signature page to this Agreement;
and
WHEREAS, as a condition to its willingness to enter into the
Merger Agreement, Purchaser has requested and required that the Shareholder
enter into this Agreement;
NOW, THEREFORE, to induce Purchaser to enter into, and in
consideration of its entering into, the Merger Agreement, and in consideration
of the promises and the representations, warranties and agreements contained
herein, the parties hereto agree as follows:
1. Representations and Warranties of the Shareholder. The
Shareholder hereby represents and warrants to Purchaser that, as of the date
hereof:
(a) Authority; No Conflicts. The Shareholder has the necessary
legal capacity, power and authority to execute and deliver this Agreement, to
perform the Shareholder's obligations hereunder and to consummate the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by and on behalf of the Shareholder, and, assuming due authorization,
execution and delivery by Purchaser,
constitutes a legal, valid and binding obligation of the Shareholder,
enforceable in accordance with its terms, subject to bankruptcy, fraudulent
conveyance, insolvency, moratorium or other similar laws affecting the rights of
creditors generally.
(b) The Subject Shares. The Shareholder is the beneficial owner of
(i) a number of shares of Company Common Stock (such shares, together with any
other shares of Company Common Stock of the Company of which the Shareholder has
or acquires beneficial ownership after the date hereof and during the term of
this Agreement, whether upon the exercise of options, warrants or rights, the
conversion or exchange of convertible or exchangeable securities, or by means of
purchase, dividend, distribution or otherwise, being collectively referred to
herein as the "Subject Shares") and (ii) a number of options to purchase shares
of Company Common Stock (such options, together with any other options, warrants
or rights to purchase shares of Company Common Stock, or other securities
convertible into or exchangeable for shares of Company Common Stock of which the
Shareholder has or acquires beneficial ownership after the date hereof and
during the term of this Agreement, whether by means of grant, purchase,
dividend, distribution or otherwise, being collectively referred to herein as
the "Subject Options") in each case, as of the date of this Agreement, as are
set forth on the signature page to this Agreement. Except as set forth on
Schedule 1 hereto: (i) the Shareholder has, and throughout the term of this
Agreement will have, good and marketable title to such Subject Shares and
Subject Options free and clear of all encumbrances and liens; (ii) other than
the Subject Shares and Subject Options indicated on the signature page to this
Agreement, the Shareholder does not beneficially own any shares of capital stock
of the Company or securities convertible into or exchangeable for shares of
capital stock of the Company; and (iii) the Shareholder has the sole right and
power to vote and dispose of the Subject Shares and Subject Options, and none of
the Subject Shares or Subject Options is subject to any voting trust or other
agreement, arrangement or restriction with respect to the voting or transfer
(other than the provisions of the Securities Act of 1933, as amended) of such
Subject Shares or Subject Options, except as contemplated by this Agreement.
2. Representations and Warranties of Purchaser. Purchaser hereby
represents and warrants to the Shareholder that Purchaser is a Texas
corporation, and is duly organized, validly existing and in good standing under
the laws of the State of Texas. Purchaser has the necessary corporate power and
authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby. This Agreement
has been duly authorized, executed and delivered by and on behalf of Purchaser,
and, assuming due execution and delivery by the Shareholder, constitutes a
legal, valid and binding obligation of Purchaser enforceable in accordance with
its terms, subject to bankruptcy, fraudulent conveyance, insolvency, moratorium
or other similar laws affecting the rights of creditors generally.
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3. Covenants of the Shareholder. The Shareholder agrees as
follows:
(a) Voting in Favor of the Merger and/or the Circon Sale. At any
meeting of shareholders of the Company called to vote upon the Merger, the
Merger Agreement or any transaction contemplated thereby (including the Circon
Sale (as defined in the Merger Agreement)), or at any adjournment thereof or in
any other circumstances (including, without limitation, a solicitation of
written consents or proxies) upon which a vote or other approval with respect to
the Merger, the Merger Agreement or any of the other transactions contemplated
thereby (including the Circon Sale (as defined therein)) is sought, the
Shareholder shall vote the Subject Shares in favor of the Merger Agreement, the
approval of the terms thereof, the Merger and all other transactions
contemplated by the Merger Agreement (including the Circon Sale).
(b) Voting Against Competing Transactions. At any meeting of
shareholders of the Company or at any adjournment thereof or in any other
circumstances upon which the Shareholder's vote, consent or other approval as a
shareholder is sought (including, without limitation, a solicitation of written
consents or proxies), the Shareholder shall vote the Subject Shares against any
action or agreement that would interfere with the Debt Offer, the Merger or any
other transaction contemplated by the Merger Agreement (including the Circon
Sale), including, but not limited to, (A) the adoption by the Company of a
proposal regarding (1) the acquisition of the Company by merger, tender offer or
otherwise by any person or group, other than Purchaser or any designee thereof
(a "Third Party"), or any other merger, business combination or similar
transaction with any Third Party; (2) the acquisition by a Third Party of 5% or
more of the assets of the Company and its subsidiaries, taken as a whole; (3)
the acquisition by a Third Party of 5% or more of the outstanding shares of
Company Common Stock or any other class of equity or voting securities of the
Company; (4) the repurchase by the Company or any of its subsidiaries of 5% or
more of the outstanding shares of Company Common Stock or (5) any other
Competing Transaction (as defined in the Merger Agreement); (B) any amendment of
the Company's certificate of incorporation or by-laws or other proposal or
transaction involving the Company or any of its subsidiaries, which amendment or
other proposal or transaction would in any manner impede, frustrate, prevent or
nullify the Debt Offer, the Merger, the Merger Agreement or any of the
transactions contemplated by the Merger Agreement (including the Circon Sale) or
change in any manner the voting rights of any class of the Company's capital
stock; (C) any change in the control of the Company or its board of directors,
other than as contemplated by the Merger Agreement; (D) any material change in
the present capitalization or dividend policy of the Company other than as
contemplated by the Merger Agreement; or (E) any other material change in the
Company's corporate structure or business other than as contemplated by the
Merger Agreement. The Shareholder further agrees not to commit or agree to take
any action in his or her capacity as a shareholder that is inconsistent with the
foregoing.
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(c) Merger Agreement. The Shareholder acknowledges that such
Shareholder has read the Merger Agreement, including the exhibits thereto, and
has had an opportunity to consult with such Shareholder's counsel concerning the
same, and the Shareholder accepts and agrees to the terms and conditions of the
Merger Agreement that relate to the treatment of the Subject Shares (including
as provided in Section 1.8(b)) and the Subject Options, and the Shareholder
hereby irrevocably waives any claim that the Merger Agreement, the Merger or any
other transaction contemplated by the Merger Agreement (including the Circon
Sale) violates any right of the Shareholder under the Texas Business Corporation
Act, any fiduciary obligation owed by the Company or any of its directors or
officers to the Shareholder, or any obligation owed by the Company to the
Shareholder pursuant to any agreement between the Company and the Shareholder or
pursuant to any employee benefit plan or stock option or similar plan of the
Company in which the Shareholder participates.
(d) Transfer Restrictions. In addition to its obligations under
Section 3(a) of this Agreement, the Shareholder further agrees not to (i) sell,
transfer, pledge, encumber, assign or otherwise dispose of or hypothecate
(including by gift or by contribution or distribution to any trust or similar
instrument or to any beneficiaries of such Shareholder (collectively,
"Transfer")), or enter into any contract, option or other arrangement or
understanding with respect to the Transfer of, any of the Subject Shares or
Subject Options for the term of this Agreement, (ii) other than with respect to
this Agreement, enter into any voting arrangement or understanding with respect
to the Subject Shares, whether by proxy, voting agreement or otherwise, or (iii)
take any action that would reasonably be expected to make any of its
representations or warranties contained herein untrue or incorrect or could have
the effect of preventing or disabling such Shareholder from performing any of
its obligations hereunder. Anything in this Section 3(d) to the contrary
notwithstanding, nothing in the foregoing shall prohibit or prevent the
Shareholder from complying with any of the Shareholder's obligations in respect
of the Circon Sale provided for in the Merger Agreement or any document executed
by the Shareholder and Purchaser in connection therewith.
(e) Appraisal Rights. Each Shareholder hereby irrevocably waives
any and all rights that he may have as to appraisal, dissent or any similar or
related matter with respect to the Merger, the Merger Agreement or any
transaction contemplated thereby, including, without limitation, any rights
otherwise available to such Shareholder pursuant to Section 5.11 of the Texas
Business Corporation Act.
(f) No Solicitation. The Shareholder agrees that, during the term
of this Agreement, he shall not, and shall not authorize or permit any of such
Shareholder's representatives, agents, affiliates or other persons, directly or
indirectly, to solicit, initiate, encourage or facilitate, or furnish or
disclose non-public information in furtherance of, any inquiries or the making
of any proposal with respect to any recapitalization, merger, consolidation or
other business combination involving the Company, or acquisition of
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any capital stock (other than upon exercise of Stock Options (as defined in the
Merger Agreement) which are outstanding as of the date hereof) or any material
portion of the assets (except for acquisition of assets in the ordinary course
of business consistent with past practice) of the Company and its Subsidiaries
(as defined in the Merger Agreement), or any combination of the foregoing (a
"Competing Transaction"), or negotiate, explore or otherwise engage in
discussions with any person (other than Purchaser, persons controlling
Purchaser, or their respective directors, officers, employees, agents and
representatives) with respect to any Competing Transaction or enter into any
agreement, arrangement or understanding requiring or causing the Company to
abandon, terminate or fail to consummate any of the transactions contemplated by
the Merger Agreement. Anything herein to the contrary notwithstanding, nothing
in this Agreement shall (i) prevent any director or officer of the Company from
taking any action consistent with his or her fiduciary duties to the Company and
its shareholders or as may be provided by the Merger Agreement, or (ii) if
Shareholder is an officer of the Company, prohibit such Shareholder from
participating in Permitted Discussions with any third party at any time during
which the Company is permitted to engage (and is so engaging) in such
discussions with such third party pursuant to Section 5.4(a) of the Merger
Agreement.
4. Stop Transfer Order. The Shareholder hereby authorizes and
requests the Company's counsel to notify the Company's transfer agent that
during the terms of this Agreement there is a stop transfer order with respect
to all of the Subject Shares and that this Agreement places limits on the voting
of the Subject Shares.
5. Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
without the prior written consent of the other party, except that Purchaser may
assign, in its sole discretion and without the consent of the Shareholder, any
or all of its rights, interests and obligations hereunder to any affiliate of
Purchaser. Subject to the preceding sentence, this Agreement will be binding
upon, inure to the benefit of and be enforceable by the parties and their
permitted assigns and their respective successors, heirs, agents,
representatives, trust beneficiaries, attorneys, affiliates and associates and
all of their respective predecessors, successors, permitted assigns, heirs,
executors and administrators.
6. Termination. This Agreement shall terminate, and no party shall
have any rights or obligations hereunder and this Agreement shall become null
and void and have no further legal effect immediately following the earlier to
occur of (x) the Effective Time (as defined in the Merger Agreement) or (y) the
termination of the Merger Agreement in accordance with its terms. Nothing in
this Section shall relieve any party of liability for breach of this Agreement.
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7. General Provisions.
(a) Amendments. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
(b) Notices. All notices, requests and other communications
hereunder shall be in writing and shall be deemed given if delivered personally,
telecopied (if confirmed), sent by overnight courier (providing proof of
delivery) or mailed by registered or certified mail (return receipt requested),
(i) if to the Purchaser, in accordance with Section 8.4(a) of the Merger
Agreement, and (ii) if to the Shareholder, to the Shareholder's attention c/o of
the Company at the address or facsimile number set forth in Section 8.4(b) of
the Merger Agreement.
(c) Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more of the counterparts have been signed by
each of the parties and delivered to the other parties, it being understood that
each party need not sign the same counterpart.
(d) Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Delaware without
regard to the conflicts of law principles thereof.
8. Enforcement. The parties agree that if any of the provisions of
this Agreement are not performed in accordance with their specific terms or are
otherwise breached, the parties would suffer irreparable harm that monetary
compensation would be inadequate to remedy. It is accordingly agreed that the
parties shall be entitled to an injunction or other forms of equitable relief to
prevent breaches of this Agreement and to enforce specifically the terms and
provisions of this Agreement, this being in addition to any other remedy to
which they are entitled at law or in equity.
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IN WITNESS WHEREOF, Purchaser and the Shareholder have each
executed this Agreement as of the date first written above.
FOX XXXXX MEDIC ACQUISITION
CORPORATION
By:________________________________
Name:
Title:
SHAREHOLDER:
-----------------------------------
Print Name:
Number of shares of Company Common Stock beneficially owned by the Shareholder
as of the date hereof:
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Number of shares of Company Common Stock subject to options to purchase shares
of Company Common Stock held by the Shareholder as of the date hereof:
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[Signature Page to Voting Agreement]
