VOTING AND PROXY AGREEMENT Exhibit 3.3
THIS VOTING AND PROXY AGREEMENT (this "Agreement") is made and entered
into as of November 16, 2001, by and between National Presto Industries, Inc., a
Wisconsin corporation ("Presto") and the undersigned shareholder
("Shareholder").
RECITALS
A. Presto Disposable Products, Inc. ("PDP"), a wholly-owned subsidiary
of Presto, and RMED International, Inc. ("RMED") intend to enter into an Asset
Purchase Agreement (the "Asset Purchase Agreement"), pursuant to which PDP will
agree, subject to the terms and conditions therein, to purchase substantially
all of the assets of RMED (the "Asset Sale");
B. As a condition to Closing under the Asset Purchase Agreement, Presto
must receive voting and proxy agreements from shareholders holding a majority of
the outstanding shares of RMED, including Shareholder;
C. Shareholder is the beneficial owner (as defined in Rule 13d-3 under
the Securities Exchange Act of 1934, as amended (the "Exchange Act") of such
number of shares of the outstanding capital stock of RMED; and
D. In consideration of Presto causing PDP to execute the Asset Purchase
Agreement and close the Asset Sale, Shareholder (in his or her capacity as such)
agrees to vote the Shares (as defined below) and other such shares of capital
stock of RMED over which Shareholder has voting power so as to ratify the Asset
Sale.
NOW, THEREFORE, intending to be legally bound, the parties hereto agree
as follows:
1. CERTAIN DEFINITIONS. Capitalized terms not defined herein shall have
the meanings ascribed to them in the Asset Purchase Agreement. For purposes of
this Agreement:
(a) "Expiration Date" shall mean the earlier to occur of (i)
December 31, 2001, unless the Asset Purchase Agreement has been executed by PDP
and RMED by such date, (ii) such date and time as the Asset Purchase Agreement
shall have been validly terminated in accordance with Section 9.1 therein, it
being recognized that the Closing of the Asset Sale shall not be considered
"termination" of the Asset Purchase Agreement, (iii) such date and time as the
Asset Sale shall have been duly ratified by the holders of a majority of the
outstanding shares of RMED at a special meeting duly called for such purpose, or
(iv) December 31, 2004.
(b) "Person" shall mean any (i) individual, (ii) corporation,
limited liability company, partnership or other entity, or (iii) governmental
authority.
(c) "Shares" shall mean: (i) all securities of RMED (including
all shares of RMED Common Stock and all options, warrants and other rights to
acquire shares of RMED Common Stock) owned by Shareholder as of the date of this
Agreement; and (ii) all additional securities of RMED (including all additional
shares of RMED Common Stock and all additional options, warrants and other
rights to acquire shares of RMED Common Stock) of which Shareholder acquires
ownership during the period from the date of this Agreement through the
Expiration Date.
(d) "Transfer." A Person shall be deemed to have effected a
"Transfer" of a security if such person directly or indirectly: (i) sells,
pledges, encumbers, grants an option with respect to, transfers or disposes of
such security or any interest in such security; or (ii) enters into an agreement
or commitment providing for the sale of, pledge of, encumbrance of, grant of an
option with respect to, transfer of or disposition of such security or any
interest therein.
2. TRANSFER OF SHARES.
(a) Transferee of Shares to be Bound by this Agreement.
Shareholder agrees that, during the period from the date of this Agreement
through the Expiration Date, Shareholder shall not cause or permit any Transfer
of any of the Shares to be effected unless each Person to which any of such
Shares, or any interest in any of such Shares, is or may be transferred shall
have: (i) executed a counterpart of this Agreement and a proxy in the form
attached hereto as Exhibit A (with such modifications as Presto may reasonably
request); and (ii) agreed in writing to hold such Shares (or interest in such
Shares) subject to all of the terms and provisions of this Agreement.
(b) Transfer of Voting Rights. Shareholder agrees that, during
the period from the date of this Agreement through the Expiration Date,
Shareholder shall not deposit (or permit the deposit of) any Shares in a voting
trust or grant any proxy or enter into any voting agreement or similar agreement
in contravention of the obligations of Shareholder under this Agreement with
respect to any of the Shares.
3. AGREEMENT TO VOTE SHARES. At every meeting of the shareholders of
RMED called, and at every adjournment thereof, and on every action or approval
by written consent of the shareholders of RMED, Shareholder (in his or her
capacity as such) shall cause the Shares to be voted in favor of ratification of
the Asset Sale and against any action seeking to invalidate or disapprove in any
respect the Asset Sale. Notwithstanding any provision of this Agreement to the
contrary, nothing in this Agreement shall limit or restrict Shareholder from
acting in Shareholder's capacity as a director or officer of RMED (it being
understood that this Agreement shall apply to Shareholder solely in
Shareholder's capacity as a shareholder of RMED) or voting in Shareholder's sole
discretion on any matter other than those matters referred to in the preceding
sentence.
4. IRREVOCABLE PROXY. Concurrently with the execution of this
Agreement, Shareholder agrees to deliver to Presto a proxy in the form attached
hereto as Exhibit A (the "Proxy"), which shall be irrevocable to the fullest
extent permissible by law, with respect to the Shares.
5. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER. Shareholder (a)
is the beneficial owner of the shares of RMED Common Stock and the options to
purchase shares of RMED Common Stock indicated on the signature page of this
Agreement, which are free and clear of any liens, adverse claims, charges or
other encumbrances (except any such encumbrances arising under securities laws);
(b) does not beneficially own any securities of RMED other than the shares of
RMED Common Stock and options to purchase shares of RMED Common Stock indicated
on the signature page of this Agreement; and (c) has full power and authority to
make, enter into and carry out the terms of this Agreement and the Proxy.
6. ADDITIONAL DOCUMENTS. Shareholder (in his or her capacity as such)
and Presto hereby covenant and agree to execute and deliver any additional
documents necessary or desirable, in the reasonable opinion of Presto, to carry
out the intent of this Agreement or the Proxy.
7. TERMINATION. This Agreement and the Proxy delivered in connection
herewith shall terminate and shall have no further force or effect as of the
Expiration Date.
8. MISCELLANEOUS.
(a) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, then the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
(b) Binding Effect and Assignment. This Agreement and all of
the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, but,
except as otherwise specifically provided herein, neither this Agreement nor any
of the rights, interests or obligations of the parties hereto may be assigned by
either of the parties without prior written consent of the other.
(c) Amendments and Modification. This Agreement may not be
modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the parties hereto.
(d) Specific Performance; Injunctive Relief. The parties
hereto acknowledge that Presto shall be irreparably harmed and that there shall
be no adequate remedy at law for a violation of any of the covenants or
agreements of Shareholder set forth herein. Therefore, it is agreed that, in
addition to any other remedies that may be available to Presto upon any such
violation, Presto shall have the right to enforce such covenants and agreements
by specific performance, injunctive relief or by any other means available to
Presto at law or in equity.
(e) Notices. All notices and other communications pursuant to
this Agreement shall be in writing and shall be deemed given if delivered
personally, telecopied, sent by nationally-recognized overnight courier or
mailed by registered or certified mail (return receipt requested), postage
prepaid, to the parties at the following addresses (or at such other address for
a party as shall be specified by like notice):
If to Presto:
National Presto Industries, Inc.
0000 Xxxxx Xxxxxxxx Xxx
Xxx Xxxxxx, Xxxxxxxxx
00000-0000
Attention: Xxxxx X. Xxxxx
Fax: (000) 000-0000
with a copy to:
Robins, Kaplan, Xxxxxx & Xxxxxx L.L.P.
0000 XxXxxxx Xxxxx
000 XxXxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
Fax: (000) 000-0000
If to Shareholder:
To the address for notice set forth on the signature
page hereof.
(f) Governing Law. This Agreement shall be governed by the
laws of the State of Wisconsin, without reference to rules of conflicts of law.
(g) Entire Agreement. This Agreement and the Proxy contain the
entire understanding of the parties in respect of the subject matter hereof, and
supersede all prior negotiations and understandings between the parties with
respect to such subject matter.
(h) Effect of Headings. The section headings are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
(i) Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
(j) No Obligation to Exercise Options. Notwithstanding any
provision of this Agreement to the contrary, nothing in this Agreement shall
obligate Shareholder to exercise any option, warrant or other right to acquire
shares of RMED Common Stock.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the day and year first above written.
PRESTO: SHAREHOLDER:
NATIONAL PRESTO INDUSTRIES, INC. By: /s/ Xxxxxx Xxxxx
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(signature)
By: /s/ Xxxxx X. Xxxxx Name: Xxxxxx Xxxxx
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(print)
Its: Executive Vice President,
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Secretary and Resident Counsel
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(print address)
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(telephone)
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(facsimile no.)
Shares of RMED beneficially owned:
913,792 shares of
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RMED Common Stock
Exhibit A
IRREVOCABLE PROXY
The undersigned shareholder (the "Shareholder") of RMED International,
Inc., a Colorado corporation ("RMED"), hereby irrevocably (to the fullest extent
permitted by law) appoints the President and Chief Executive Officer, the Chief
Financial Officer and the Executive Vice President of National Presto
Industries, Inc., a Wisconsin corporation ("Presto"), and each of them, as the
sole and exclusive attorneys and proxies of the undersigned, with full power of
substitution and resubstitution, to vote and exercise all voting and related
rights (to the full extent that the undersigned is entitled to do so) with
respect to all of the shares of capital stock of RMED that now are or hereafter
may be beneficially owned by the undersigned, and any and all other shares or
securities of RMED issued or issuable in respect thereof on or after the date
hereof (collectively, the "Shares") in accordance with the terms of this Proxy
until the Expiration Date (as defined below). Upon the undersigned's execution
of this Proxy, any and all prior proxies given by the undersigned with respect
to any Shares are hereby revoked and the undersigned agrees not to grant any
subsequent proxies with respect to the Shares until after the Expiration Date.
This Proxy is irrevocable (to the fullest extent permitted by law), is
coupled with an interest and is granted pursuant to that certain Voting and
Proxy Agreement of even date herewith by and between Presto and the undersigned
Shareholder (the "Voting Agreement"), and is granted in consideration of Presto
causing its wholly-owned subsidiary, Presto Disposable Products, Inc. ("PDP") to
execute that certain Asset Purchase Agreement by and between PDP and RMED (the
"Asset Purchase Agreement") and to close of the transactions contemplated
thereby. The Asset Purchase Agreement will provide for the purchase of
substantially all of the assets of RMED by PDP in accordance with its terms (the
"Asset Sale") . As used herein, the term "Expiration Date" shall mean the
earlier to occur of (i) December 31, 2001, unless the Asset Purchase Agreement
has been executed by PDP and RMED by such date, (ii) such date and time as the
Asset Purchase Agreement shall have been validly terminated as provided in
accordance with Section 9.1 therein, it being recognized that the Closing of the
Asset Sale shall not be considered "termination" of the Asset Purchase
Agreement, (iii) such date and time as the Asset Sale shall have been duly
ratified by the holders of a majority of the outstanding shares of common stock
of RMED at a special meeting duly called for such purpose, or (iv) December 31,
2004.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting, consent and similar rights of the undersigned with respect
to the Shares (including, without limitation, the power to execute and deliver
written consents) at every annual, special or adjourned meeting of shareholders
of RMED and in every written consent in lieu of such meeting in favor of the
ratification of the Asset Sale and against any action seeking to invalidate or
disapprove in any respect the Asset Sale. The attorneys and proxies named above
may not exercise this Proxy on any other matter. The undersigned Shareholder may
vote the Shares on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
This Proxy is irrevocable (to the fullest extent permitted by law).
This Proxy shall terminate, and be of no further force and effect, automatically
upon the Expiration Date.
Dated: November 16, 2001
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Signature of Shareholder: /s/ Xxxxxx Xxxxx
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Print Name of Shareholder: Xxxxxx Xxxxx
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