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Exhibit B
JMS SHAREHOLDERS AGREEMENT AND IRREVOCABLE PROXY
THIS SHAREHOLDERS AGREEMENT AND IRREVOCABLE PROXY (this "AGREEMENT") is
made and entered into as of October 9, 2001, by and among The Procter & Xxxxxx
Company, an Ohio corporation ("P&G"), and those certain shareholders set forth
on the signature pages hereto (each individually, a "SHAREHOLDER" and
collectively, "SHAREHOLDERS") of The X.X. Xxxxxxx Company, an Ohio corporation
("JMS").
RECITALS
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A. Concurrently with the execution of this Agreement, P&G, The Xxxxxxx
& Xxxxxx Ohio Brands Company, an Ohio corporation and wholly owned subsidiary of
P&G ("NEWCO"), and JMS are entering into an Agreement and Plan of Merger of even
date herewith (as such agreement may hereafter be amended from time to time, the
"MERGER AGREEMENT") which provides for the merger of Newco with and into JMS
(the "MERGER"). Following the Merger, JMS will continue as the surviving
corporation (the "SURVIVING CORPORATION"). In the Merger, shares of common stock
of Newco, without par value ("NEWCO COMMON STOCK") and shares of common stock of
JMS, without par value ("JMS COMMON STOCK") will automatically be converted into
the right to receive shares of common stock of the Surviving Corporation,
without par value ("SURVIVING CORPORATION COMMON STOCK") on the terms and
subject to the conditions of the Merger Agreement. Capitalized terms that are
used in this Agreement and are not otherwise defined herein will have the same
meanings that such terms have in the Merger Agreement.
B. As of the date hereof, each Shareholder is the beneficial owner (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the
"SECURITIES ACT")) with respect to, in the aggregate, such number of Shares (as
defined herein) listed opposite such Shareholder's name on Schedule A attached
hereto;
C. Each Shareholder is entering into this Agreement as a material
inducement and consideration to P&G to enter into the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto hereby agree as follows:
1. Definitions.
(a) "Action" shall mean any dispute, controversy, claim, action,
litigation, suit, cause of action, arbitration, mediation, or any proceeding by
or before any mediator or Governmental Entity, or any investigation, subpoena,
or demand preliminary to any of the foregoing.
(b) "Expiration Date" means the earlier to occur of (i) the Effective
Time; and (ii) the termination of the Merger Agreement in accordance with its
terms.
(c) "Governmental Entity" shall mean any arbitrator, court, judicial,
legislative, administrative or regulatory agency, commission, department, board
or bureau or body or other governmental authority or instrumentality or any
Person or entity exercising
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executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, whether foreign, federal, state, provincial, local or
other.
(d) "Person" shall mean and include an association, an individual, a
partnership, a joint venture, joint stock company, a corporation, a trust, an
unincorporated organization, a limited liability company, a group, a government
or other department or agency thereof and any other entity.
(e) "Shares" means all issued and outstanding shares of JMS Common
Stock owned beneficially by each Shareholder, in each case, on the date hereof;
PROVIDED, HOWEVER, that any shares of capital stock of JMS of which such
Shareholder becomes the record or beneficial owner after the execution of this
Agreement and prior to the Expiration Date shall be subject to the terms and
conditions of this Agreement to the same extent as if they constituted Shares on
the date hereof.
(f) "Transfer" with respect to any security means to directly or
indirectly: (i) sell, pledge, encumber, transfer or dispose of, or grant an
option with respect to, such security or any interest in such security; or (ii)
enter into an agreement or commitment providing for the sale, pledge,
encumbrance, transfer or disposition of, or grant of an option with respect to,
such security or any interest therein.
2. AGREEMENT TO VOTE.
2.1 VOTING AGREEMENT. (a) Each Shareholder hereby covenants and agrees
that, prior to the Expiration Date, at any meeting (whether annual or special
and whether or not an adjourned or postponed meeting) of the shareholders of
JMS, however called, and in any action taken by the written consent of
shareholders of JMS without a meeting, unless otherwise directed in writing by
P&G, each Shareholder will appear at the meeting or otherwise cause such
Shareholder's Shares to be counted as present thereat for purposes of
establishing a quorum and vote or consent or cause to be voted or consented the
Shares:
(i) in favor of the issuance of Surviving Corporation Common
Stock pursuant to the Merger, the execution and delivery by JMS of the
Merger Agreement and the adoption of the terms thereof, and in favor of
the other actions contemplated by the Merger Agreement (including any
amendment to JMS's governing documents that is necessary or desirable
in order to consummate the Merger) and, to the extent that a vote is
solicited in connection with this Agreement or the Merger Agreement,
any other action required or desirable in furtherance hereof or
thereof;
(ii) to the extent a vote is solicited in connection with the
approval of any action, agreement or proposal that would result in a
breach of any representation, warranty, covenant or obligation of JMS
in the Merger Agreement or that would delay or hinder the consummation
of the Merger or that would preclude fulfillment of a condition
precedent under the Merger Agreement to JMS's, P&G's or Newco's
obligation to consummate the Merger, against the approval of such
action, agreement or proposal; and
(iii) against approval of any action, agreement or proposal
made in opposition to or in competition with the issuance of the
Surviving Corporation Common
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Stock pursuant to the Merger and the consummation of the Merger,
including, without limitation, any Competing Transaction or Superior
Proposal.
(b) Prior to the Expiration Date, each Shareholder will not enter into
any agreement or understanding with any person to vote or give instructions in
any manner inconsistent with any provision of this Section 2.1. This Agreement
is intended to bind each Shareholder only with respect to the specific matters
set forth herein.
2.2 IRREVOCABLE PROXY. Contemporaneously with the execution of this
Agreement, each Shareholder will deliver to P&G a proxy with respect to such
Shareholder's Shares in the form attached hereto as EXHIBIT 1, which proxy will
be irrevocable to the fullest extent permitted by applicable Law (the "PROXY");
except that the Proxy shall be automatically revoked upon termination of this
Agreement in accordance with its terms.
2.3 TRANSFER AND OTHER RESTRICTIONS.
(a) From and after the date hereof until the termination of this
Agreement, each Shareholder agrees not to, directly or indirectly:
(i) except pursuant to the terms of the Merger Agreement,
Transfer any or all of the Shares or any interest therein;
(ii) grant any proxy, power of attorney, deposit any Shares
into a voting trust or enter into a voting agreement or arrangement
with respect to the Shares except as provided in this Agreement; or
(iii) take any other action that would make any representation
or warranty of such Shareholder contained herein untrue or incorrect or
have the effect of preventing or disabling such Shareholder from
performing its obligations under this Agreement.
(b) To the extent that any Shareholder is, as of the date hereof, party
to a contract or agreement that requires such Shareholder to Transfer Shares to
another person or entity (excluding a contract or agreement pledging Shares to
JMS), such Shareholder will not effect any such Transfer unless, prior to such
Transfer, such Shareholder causes the transferee to be bound by and to execute
an agreement in the form of this Agreement with respect to the Shares to be
Transferred. Nothing herein shall prohibit Shareholder from exercising any
option or warrant Shareholder may hold (in accordance with the terms of such
option or warrant, as applicable); PROVIDED, HOWEVER, that the securities
acquired upon such exercise shall be deemed Shares.
(c) Each Shareholder agrees with, and covenants to, P&G that such
Shareholder shall not request that JMS register the transfer (book-entry or
otherwise) of any certificate or uncertificated interest representing any
Shares, unless such transfer is made pursuant to and in compliance with this
Agreement.
(d) From and after the Effective Time until the second anniversary of
the Effective Time, each Shareholder agrees not to, directly or indirectly,
purchase, or otherwise
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acquire record or beneficial ownership of any additional shares of Surviving
Corporation Common Stock or warrants or options to acquire Surviving Corporation
Common Stock; or (ii) enter into any agreement or commitment to purchase shares
of Surviving Corporation Common Stock or warrants or options to acquire
Surviving Corporation Common Stock; PROVIDED, HOWEVER, that this prohibition
shall not apply to the acquisition of (x) options to purchase shares of
Surviving Corporation Common Stock granted by JMS or the Surviving Corporation
to Shareholder in connection with services performed by Shareholder as an
employee or director of JMS or the Surviving Corporation ("Options"), (y) the
acquisition of shares of Surviving Corporation Common Stock upon the exercise of
such Options or (z) shares of Surviving Corporation Common Stock granted by the
Surviving Corporation to the Shareholder in connection with services performed
by such Shareholder as an officer or director of the Surviving Corporation.
(e) The foregoing restrictions shall not prohibit a transfer of Shares
(i) in the case of an individual, to any member of his or her immediate family,
to a trust for the benefit of such Shareholder or any member of his or her
immediate family or a transfer of Shares upon the death of any Shareholder or
(ii) in the case of a partnership or limited liability company, to one or more
partners or members or to an affiliated corporation; PROVIDED, HOWEVER, that in
each such case, (x) such Transfer is for no consideration of any kind and (y)
any transferee shall, as a precondition to such transfer, agree in a writing
delivered to P&G, to be bound by the terms and conditions of this Agreement and
execute and deliver to P&G a proxy in the form attached hereto.
3. WAIVERS. Each Shareholder agrees not to exercise any rights of
appraisal and any dissenters' rights that such Shareholder may
have (whether under applicable law or otherwise) or could
potentially have or acquire in connection with the Merger or
any proposal that is necessary or desirable to consummate the
Merger.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SHAREHOLDER. Each
Shareholder hereby represents, warrants and covenants to P&G
severally, and not jointly, as follows:
4.1 AUTHORITY, ENFORCEABILITY. Such Shareholder has the power and
authority to enter into, execute, deliver and perform such Shareholder's
obligations under this Agreement and to make the representations, warranties and
covenants made by such Shareholder herein. This Agreement has been duly executed
and delivered by such Shareholder and constitutes a legal, valid and binding
obligation of such Shareholder, enforceable against such Shareholder in
accordance with its terms, subject to (i) Laws of general application relating
to bankruptcy, insolvency and the relief of debtors and (ii) rules of Law
governing specific performance, injunctive relief and other equitable remedies.
4.2 NO CONFLICTS, NO DEFAULTS AND CONSENTS. The execution and delivery
of this Agreement by such Shareholder does not, and the performance of this
Agreement by such Shareholder will not: (i) conflict with or violate any order,
decree or judgment applicable to such Shareholder or by which such Shareholder
or any of such Shareholder's properties or Shares is bound or affected; (ii)
conflict with or violate any agreement to which such Shareholder is a party or
is subject, including, without limitation, any voting agreement or voting
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trust; (iii) result in any breach of or constitute a default (with notice or
lapse of time, or both) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of any
lien, restriction, adverse claim, option on, right to acquire, or any
encumbrance or security interest in or to such Shareholder's Shares, pursuant to
any written, oral or other agreement, contract or legally binding commitment to
which such Shareholder is a party or by which such Shareholder or any of such
Shareholder's Shares is bound or affected, or (iv) require any written, oral or
other agreement, contract or legally binding commitment of any third party.
4.3 SHARES OWNED. As of the date hereof, such Shareholder is the record
owner, and in the case of Xxxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxx and H. Xxxx
Xxxxxxxx, the beneficial owner (as defined in Rule 13d-3 under the Securities
Act to the extent that such Shares are not owned of record by another
Shareholder listed on Schedule A), with respect to, in the aggregate, the number
of shares of JMS Common Stock listed opposite such Shareholder's name on
Schedule A, and does not beneficially own or otherwise have the power to direct
the voting with respect to, any shares of capital stock of JMS other than the
Shares listed on Schedule A. Schedule A further sets forth as of the date hereof
the number of Shares for which such Shareholder is entitled to cast one vote per
Share and the number of Shares for which such Shareholder is entitled to cast
ten votes per Share, in each case on any matter submitted for the approval of
holders of JMS Common Stock.
4.4 ACCURACY OF REPRESENTATIONS; RELIANCE BY COMPANY. The
representations and warranties contained in this Agreement are accurate in all
respects as of the date of this Agreement, will be accurate in all respects at
all times through the Expiration Date and will be accurate in all respects as of
the Effective Time of the Merger as if made on that date. Each Shareholder
understands and acknowledges that P&G and Newco are entering into the Merger
Agreement in reliance upon each Shareholder's execution and delivery of this
Agreement.
4.5 FURTHER ASSURANCES. Each Shareholder agrees to execute and deliver
any additional documents reasonably necessary or desirable, in the reasonable
opinion of P&G, Newco or JMS, to carry out the purposes and intent of this
Agreement and the Proxy.
4.6 NO RESTRAINT ON OFFICER OR DIRECTOR ACTION. Notwithstanding
anything herein to the contrary, no person executing this Agreement who is, or
becomes during the term hereof, a director or an officer of JMS makes any
agreement, understanding or undertaking herein in his or her capacity as a
director or officer, and the agreements set forth herein shall in no way
restrict any director or officer in the exercise of his or her fiduciary duties
as a director or officer of JMS. Each Shareholder has executed this Agreement
solely in his or her capacity as the beneficial holder of such Shareholder's
Shares or as the trustee of a trust whose beneficiaries are the beneficial
owners of such Shareholder's Shares.
4.7 LIMITED PROXY. Each Shareholder will retain at all times the right
to vote such Shareholder's Shares, in such Shareholder's sole discretion, on all
matters other than those set forth in Section 2.1 which are at any time or from
time to time presented to JMS's shareholders generally.
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4.8 CONFIDENTIALITY. Each Shareholder agrees (i) to hold any non-public
information regarding this Agreement and the Merger in strict confidence and
(ii) not to divulge any such non-public information to any third person.
4.9 NO SOLICITATION. Each Shareholder agrees that it will not take any
action that Affiliates of JMS are prohibited from taking under Section 6.16 of
the Merger Agreement.
5. MISCELLANEOUS.
5.1 SEVERABILITY. If any provision of this Agreement is found by any
court of competent jurisdiction to be invalid or unenforceable, then the parties
hereby waive such provision to the extent that it is found to be invalid or
unenforceable and to the extent that to do so would not deprive one of the
parties of the substantial benefit of its bargain. Such provision will, to the
extent allowable by Law and the preceding sentence, not be voided or canceled
but will instead be modified by such arbitrator or court so that it becomes
enforceable and, as modified, will be enforced as any other provision hereof,
all the other provisions hereof continuing in full force and effect.
5.2 AMENDMENT; WAIVER. This Agreement may be amended, modified,
superseded, canceled, renewed, or extended only by an agreement in writing
executed by P&G and each Shareholder. The failure by any party at any time to
require performance or compliance by another party of any of its obligations or
agreements will in no way affect the right to require such performance or
compliance at any time thereafter. The waiver by any party of a breach of any
provision of this Agreement will not be treated as a waiver of any preceding or
succeeding breach of such provision or as a waiver of the provision itself. No
waiver of any kind will be effective or binding, unless it is in writing and is
signed by the party against whom such waiver is sought to be enforced.
5.3 ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES. This Agreement,
together with the Merger Agreement and the Ancilliary Agreements, constitutes
the entire agreement between the parties with respect to the subject matter
hereof and supersedes all other prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof,
and are not intended to convey upon any person other than P&G and each
Shareholder any rights or remedies hereunder.
5.4 ASSIGNMENT. This Agreement and all rights and obligations hereunder
are personal to each Shareholder and may not be transferred or assigned by any
Shareholder at any time. P&G may assign its rights, and may delegate its
obligations hereunder, to any Subsidiary of P&G; PROVIDED HOWEVER, that any such
assignee assumes the obligations of P&G hereunder. This Agreement will be
binding upon, and inure to the benefit of, the persons or entities who are
permitted, by the terms of this Agreement, to be successors, assigns and
personal representatives of the respective parties hereto.
5.5 GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of Ohio, whether common law or statutory,
without reference to the choice of law provisions thereof.
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5.6 NOTICES. All notices required or permitted pursuant to this
Agreement will be in writing and will be deemed to be properly given when
actually received by the person entitled to receive the notice at the address
stated below, or at such other address as a party may provide by notice to the
other:
If to P&G:
The Procter & Xxxxxx Company
X.X. Xxx 000
Xxxxxxxxxx, XX 00000
Attention: Director-Acquisitions Divestures
With a copy to:
The Procter & Xxxxxx Company
X.X. Xxx 000
Xxxxxxxxxx, XX 00000
Attention: Secretary
If to JMS:
The X.X. Xxxxxxx Company
Xxxxxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
With a copy to:
The X.X. Xxxxxxx Company
Xxxxxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Attention: General Counsel
If to the Shareholders:
At the address listed on Schedule A.
With a copy to:
The X.X. Xxxxxxx Company
Xxxxxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Attention: General Counsel
5.7 SPECIFIC PERFORMANCE. The parties hereby acknowledge and agree that the
failure of any party to perform its agreements and covenants hereunder,
including its failure to
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take all actions as are necessary on its part to the consummation of the
Transactions, will cause irreparable injury to the other parties for which
damages, even if available, will not be an adequate remedy. Accordingly, each
party hereby consents to the issuance of injunctive relief by any court of
competent jurisdiction to compel performance of such party's obligations and to
the granting by any court of the remedy of specific performance of its
obligations hereunder.
5.8 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which will be deemed an original, but all of which, taken together,
constitute one and the same agreement.
5.9 TITLES. The titles and captions of the sections and paragraphs of
this Agreement are included for convenience of reference only and will have no
effect on the construction or meaning of this Agreement.
5.10 TERMINATION. This Agreement, other than the Transfer prohibitions
contained in Section 2.3(d), which shall terminate upon the second anniversary
of the Effective Time, will be terminated and will be of no further force and
effect upon the Expiration Date.
5.11 FEES AND EXPENSES. Except as specifically provided to the contrary
in this Agreement, all costs and expenses incurred in connection with this
Agreement shall be paid by the party incurring such expenses.
5.12 NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES. None of the
representations and warranties in this Agreement or in any schedule, instrument
or other document delivered pursuant to this Agreement shall survive the
Expiration Date; PROVIDED, HOWEVER, that the termination of this Agreement shall
not relieve any party from any liability for any breach of this Agreement that
has occurred prior to the termination of this Agreement as provided for in
Section 5.10.
5.13 LEGAL COUNSEL. Each Shareholder acknowledges that it has been
advised to, and has had the opportunity to consult with its personal attorney
prior to entering into this Agreement. Each Shareholder acknowledges that
attorneys for JMS represent JMS and do not represent any of the shareholders of
JMS in connection with the Merger Agreement, this Agreement or any of the
transactions contemplated hereby or thereby.
5.14 AGREEMENT NEGOTIATED. The form of this Agreement has been
negotiated by or on behalf of JMS and P&G, each of which was represented by
attorneys who have carefully negotiated the provisions hereof. No law or rule
relating to the construction or interpretation of contracts against the drafter
of any particular clause should be applied with respect to this Agreement or the
Proxy.
5.15 LEGENDS. Any stock certificates representing the Shares shall at
the request of P&G reflect this Agreement and, if applicable, the irrevocable
proxy granted by this Agreement.
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IN WITNESS WHEREOF, the undersigned parties have executed this
Agreement as of the date first above written.
SHAREHOLDERS
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxx
Individually Trustee, Xxxx X. Xxxxxxx Revocable Trust
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxx
Trustee, Xxxxx X. Xxxxxxx Revocable Trust Trustee, Protected Trust and Exempt Trust
FBO Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxx
Trustee, Xxxxxxx X. Xxxxxxx Trust Trustee, Xxxxxxx X. Xxxxxxx Foundation
FBO Xxxxxxxx X. Xxxxx
/s/ Xxxxxxxx X. Xxxxxxx /s/ Xxxxxxxx X. Xxxxxxx
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Xxxxxxxx X. Xxxxxxx Xxxxxxxx X. Xxxxxxx
Individually Trustee, Xxxxxxx X. Xxxxxxx Trust
FBO Xxxx Xxxxx Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxx
Individually Trustee, Protected Trust and Exempt Trust
FBO Xxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx Xxxxx X. Xxxxxxx
Individually Custodian, Xxxxx X. Xxxxxxx UGMA
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SHAREHOLDERS
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx Xxxxxxxx X. Xxxxxxx
Trustee, Xxxxxxx X. Xxxxxxx Foundation Trustee, Xxxxxxxx X. Xxxxxxx Personal Trust
/s/ Xxxxx X. Xxxxxxxx /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx Xxxxx X. Xxxxxxxx
Individually Trustee, Protected Trust and Exempt Trust
FBO Xxxxx X. Xxxxxxxx
/s/ Xxxxx X. Xxxxxxxx /s/ H. Xxxx Xxxxxxxx
------------------------------ ------------------------------
Xxxxx X. Xxxxxxxx H. Xxxx Xxxxxxxx
Custodian, Xxxxxxxx X. Xxxxxxxx UGMA Individually
[INTENTIONALLY LEFT BLANK]
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THE PROCTER & XXXXXX COMPANY
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President - Treasurer
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EXHIBIT 1 TO SHARHOLDERS AGREEMENT
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IRREVOCABLE PROXY
The undersigned shareholder (the "SHAREHOLDER") of JMS, an Ohio
corporation, ("JMS") hereby irrevocably (to the fullest extent permitted by
applicable law) appoints and constitutes those officers of The Procter and
Xxxxxx Company, an Ohio corporation ("P&G") designated by P & G in writing and
each of them (collectively the "PROXYHOLDERS"), the agents, attorneys and
proxies of the undersigned, with full power of substitution and resubstitution,
to the fullest extent of the undersigned's rights with respect to (i) the shares
of capital stock of JMS beneficially owned (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended) by the undersigned as of the date
of this proxy, which shares are specified on Schedule A to the Shareholders
Agreement (as defined below); (ii) any and all other shares of capital stock of
JMS with respect to which the undersigned shall become the record or beneficial
owner or over which the undersigned shall otherwise exercise voting power after
the date hereof, including, without limitation, in the event of a dividend or
distribution of capital stock of JMS, or any change in JMS's capital stock by
reason of any stock dividend, split-up, recapitalization, combination, exchange
of shares or the like, all shares of JMS's capital stock issued or distributed
pursuant to such stock dividends and distributions and any shares of JMS's
capital stock into which or for which any or all of the shares otherwise held by
the undersigned may be so changed or exchanged. (The shares of the capital stock
of JMS referred to in clauses (i) and (ii) of the immediately preceding sentence
are collectively referred to as the "SHARES.") Upon the execution hereof, all
prior proxies given by the undersigned with respect to any of the Shares are
hereby revoked, and no subsequent proxies will be given with respect to any of
the Shares until such time as this proxy shall be terminated in accordance with
its terms.
The Proxyholders named above will be empowered, and may exercise this
proxy, to vote the Shares at any time until the Expiration Date (as defined in
the Shareholders Agreement dated as of the date hereof, between P&G and the
undersigned (the "SHAREHOLDERS AGREEMENT") at any meeting of the shareholders of
JMS, however called, or in any action by written consent of shareholders of JMS
with respect to the following matters and only the following matters:
(i) in favor of the issuance of JMS Common Stock pursuant to the merger
(the "MERGER") contemplated by the Agreement and Plan of Merger by and among
P&G, The Procter & Xxxxxx Ohio Brands Company, an Ohio corporation and a wholly
owned subsidiary of P&G, ("NEWCO"), JMS and JMS Acquisition Corp., an Ohio
corporation and a wholly owned subsidiary of JMS ("MERGER SUB"), dated as of the
date hereof (the "MERGER AGREEMENT"), the execution and delivery by JMS of the
Merger Agreement and the adoption and approval of the terms thereof, and in
favor of the other actions contemplated by the Merger Agreement (including any
amendment to JMS's governing documents that is necessary or desirable in order
to consummate the Merger) and, to the extent that a vote is solicited in
connection with the Shareholders Agreement or the Merger Agreement, any other
action required or desirable in furtherance hereof or thereof;
(ii) against approval of any action, agreement or proposal that would
result in a breach of any representation, warranty, covenant or obligation of
JMS in the Merger Agreement or that would delay or hinder the consummation of
the Merger or that would preclude fulfillment
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of a condition precedent under the Merger Agreement to JMS', P&G's or Newco's
obligation to consummate the Merger; and
(iii) against approval of any action, agreement or proposal made in
opposition to or in competition with the consummation of the Merger including,
without limitation, any Competing Transaction or Superior Proposal (each as
defined in the Merger Agreement).
The Proxyholders may not exercise this proxy on any other matter. The
Shareholder may vote the Shares on all such other matters. The proxy granted by
the Shareholder to the Proxyholders hereby is granted as of the date of this
Irrevocable Proxy in order to secure the obligations of the Shareholder set
forth in Section 2 of the Shareholders Agreement.
This proxy will terminate upon the termination of the Shareholders
Agreement in accordance with its terms. Any obligation of the undersigned
hereunder shall be binding upon the successors and assigns of the undersigned.
The undersigned Shareholder authorizes the Proxyholders to file this proxy and
any substitution or revocation of substitution with the Secretary of JMS and
with any Inspector of Elections at any meeting of the shareholders of JMS.
This proxy is irrevocable, is coupled with an interest, and shall
survive the insolvency, incapacity, death or liquidation of the undersigned and
will be binding upon the heirs, successors and assigns of the undersigned
(including any transferee of any of the Shares).
Dated: October 9, 2001
SHAREHOLDER
By:
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