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Exhibit (d)(3)
EXECUTION COPY
VOTING AGREEMENT
VOTING AGREEMENT, dated as of January 30, 2000 (this
"Agreement") by and among Calendar Acquisition Corp., a Wisconsin corporation
("Merger Sub"), Xxxx Train ("Chief Executive Officer"), Xxxxxxx X. Xxxxxx,
("Chairman," and together with the Chief Executive Officer, the "Executives"),
Xxxxx X. Xxxxxx ("Chairman's Wife") and Xxxxxx Family Foundation (the
"Foundation," and collectively with the Executives and Chairman's Wife, the
"Stockholders").
RECITALS
Merger Sub, Xxxxx Incorporated, a Wisconsin corporation (the
"Company"), the Executives and the other parties named therein propose to enter
into an Agreement and Plan of Merger dated as of the date hereof (as the same
may be amended or supplemented, the "Merger Agreement") providing for the merger
of Merger Sub with and into the Company, in which the Company will be the
surviving entity, upon the terms and subject to the conditions set forth in the
Merger Agreement. Capitalized terms used but not defined herein shall have the
meanings set forth in the Merger Agreement as entered into on the date hereof.
As of the date hereof, the Stockholders are the record and
beneficial owner of an aggregate of 7,686,683 shares of Company Common Stock
(the "Existing Shares" and, together with any shares of Company Common Stock
acquired by the Stockholders after the date hereof, whether upon the exercise of
warrants, options or rights, the conversion or exchange of any Existing Shares
or convertible or exchangeable securities or by means of purchase, dividend,
distribution or otherwise, the "Subject Shares").
As an inducement and a condition to entering into the Merger
Agreement, Merger Sub has required that the Stockholders agree, and the
Stockholders have agreed, to enter into this Agreement.
The Stockholders and Merger Sub desire to set forth their
agreement with respect to the voting of the Subject Shares in connection with
the Merger Agreement and the Transactions upon the terms and subject to the
conditions set forth herein.
AGREEMENT
To implement the foregoing and in consideration of the mutual
agreements contained herein, the parties agree as follows:
1. Covenants of the Stockholders. Until the termination of
this Agreement in accordance with Section 8, the Stockholders agree as follows:
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(a) Agreement to Vote. At any meeting of shareholders
of the Company called for the approval of the Merger Agreement, the Transactions
or any Third Party Transaction, however called, or at any adjournment thereof,
or in connection with any written consent of the holders of shares of Company
Common Stock, or in any other circumstances in which the Stockholders are
entitled to vote, consent or give any other approval with respect to the Merger
Agreement, the Transactions or any Third Party Transaction, the Stockholders
shall vote (or cause to be voted) the Subject Shares at the sole discretion and
direction of Merger Sub with respect to adoption and approval of the Merger
Agreement, the Transactions or any Third Party Transaction and the approval of
the terms thereof and each of the other actions contemplated by this Agreement,
the Merger Agreement or any Third Party Transaction and any amendments hereto or
thereto.
At any meeting of shareholders of the Company, however called,
or at any adjournment thereof, or in connection with any written consent of the
holders of shares of Company Common Stock or in any other circumstances in which
the Stockholders are entitled to vote, consent or give any other approval,
except as otherwise agreed to in writing in advance by Merger Sub, the
Stockholders shall vote (or cause to be voted) the Subject Shares against the
following actions:
(i) any action or agreement that would
result in a breach of any covenant, representation or warranty or any other
obligation or agreement of the Company or the Executives under the Merger
Agreement or of the Stockholders hereunder; or
(ii) any action or agreement that could
reasonably be expected to impede, interfere with, delay, postpone or attempt to
discourage the Merger and/or the other Transactions, 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 other than
Merger Sub or any designee thereof (a "Third Party"), or any other merger,
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 (whether by the acquisition of assets or securities of, or any
merger, consolidation or other business combination involving, the Company or
any of its subsidiaries); (3) the acquisition by a Third Party of 5% or more of
the outstanding shares of Company Common Stock, or (4) the repurchase by the
Company and/or any of its subsidiaries of 5% or more of the outstanding shares
of Company Common Stock; (B) any amendment of the Company's Articles 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
could in any manner reasonably be expected to impede, prevent or nullify the
Merger, the Merger Agreement or the Transactions, or change in any manner the
rights and privileges, including, without limitation, voting rights of any class
of the Company's capital stock; (C) any change in the management or board of
directors of the Company that could in any manner reasonably be expected to
impede, prevent or nullify the Merger, the Merger Agreement or the Transactions;
(D) any material change in the present capitalization (other than pursuant to
the Contribution Agreement) or dividend policy of the Company; or (E) any other
material change in the Company's corporate structure or business. The
Stockholders, in their capacity as shareholders of the Company, further agree
not to commit or agree to take any action inconsistent with the foregoing
agreements.
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(b) PROXIES. AS SECURITY FOR THE AGREEMENTS OF THE
STOCKHOLDERS PROVIDED FOR HEREIN, THE STOCKHOLDERS HEREBY GRANT TO MERGER SUB AN
IRREVOCABLE PROXY TO VOTE THE SUBJECT SHARES AS INDICATED IN SECTION 1(a) ABOVE.
THE STOCKHOLDERS AGREE THAT THIS PROXY SHALL BE IRREVOCABLE DURING THE TERM OF
THIS AGREEMENT AND COUPLED WITH AN INTEREST AND EACH OF THE STOCKHOLDERS AND
MERGER SUB WILL TAKE SUCH FURTHER ACTION OR EXECUTE SUCH OTHER INSTRUMENTS AS
MAY BE NECESSARY TO EFFECTUATE THE INTENT OF THIS PROXY. THE STOCKHOLDERS HEREBY
REVOKE ANY PROXY PREVIOUSLY GRANTED BY THE STOCKHOLDERS WITH RESPECT TO THE
SUBJECT SHARES.
(c) Transfer Restrictions. The Stockholders agree not
to (i) sell, transfer, tender pursuant to a tender offer, 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 the Stockholders (collectively, "Transfer")), or enter into any
contract, option or other arrangement or understanding (including any profit
sharing arrangement) with respect to the Transfer of any of the Subject Shares
other than pursuant to the terms hereof and the Merger Agreement, (ii) 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
could reasonably be expected to make any of such Stockholders' representations
or warranties contained herein untrue or incorrect or could reasonably be
expected to have the effect of preventing or disabling the Stockholders from
performing any of their obligations hereunder; provided, that notwithstanding
anything contained herein to the contrary, after the date hereof, the Chairman
may Transfer any of his Subject Shares to the Foundation and such Subject Shares
shall remain subject to and fully bound by the terms of this Agreement.
Notwithstanding anything contained herein to the contrary, the restrictions
contained in this Section 1(c) shall not apply with respect to any Transfer of
Subject Shares by any Stockholder pursuant to applicable laws of descent and
distribution; provided, that such proposed transferee must agree to take such
Subject Shares subject to and to be fully bound by the terms of this Agreement
applicable to such Subject Shares by executing a joinder to this Agreement
substantially in the form attached hereto as Exhibit B and delivering such
executed joinder to the Secretary of Merger Sub as soon as reasonably possible
after such Transfer.
(d) Stop Transfer. The Stockholders hereby authorize
and request the Company and its counsel to notify the Company's transfer agent
that 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). The
Stockholders agree with, and covenant to, Merger Sub that the Stockholders shall
not request that the Company register the Transfer (book-entry or otherwise) of
any certificate or uncertificated interest representing any of the Subject
Shares, unless such Transfer is made in compliance with this Agreement and the
Merger Agreement. In the event of a stock dividend or distribution, or any
change in the shares of Company Common Stock by reason of any
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stock dividend or distribution, or any change in the shares of Company Common
Stock by reason of any stock dividend, split-up, recapitalization, combination,
exchange of shares or the like, the term "Subject Shares" shall be deemed to
refer to and include the Subject Shares as well as all such stock dividends and
distributions and any shares into which or for which any or all of the Subject
Shares may be changed or exchanged. The Stockholders shall be entitled to
receive and retain any cash dividend paid by the Company during the term of this
Agreement until the Subject Shares are canceled in the Merger.
(e) Appraisal Rights. THE STOCKHOLDERS HEREBY
IRREVOCABLY WAIVE ANY AND ALL RIGHTS WHICH THEY MAY HAVE AS TO APPRAISAL,
DISSENT OR ANY SIMILAR OR RELATED MATTER WITH RESPECT TO THE MERGER OR THE OTHER
TRANSACTIONS.
2. Representations and Warranties of the Stockholders. Each
Stockholder hereby severally but not jointly represents and warrants to Merger
Sub as of the date hereof as follows:
(a) No Conflict. The execution and delivery of this
Agreement by such Stockholder does not, and the consummation by such Stockholder
of the transactions contemplated hereby will not, (i) to such Stockholder's
knowledge, violate any Law applicable to such Stockholder, (ii) prevent or
materially delay the consummation of the Merger or the other Transactions or
(iii) to such Stockholder's knowledge, result in a violation or any breach of or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which such Stockholder is a party, except for any such breaches or defaults
which would not materially impair the ability of such Stockholder to consummate
the transactions contemplated hereby.
(b) Required Filings and Consents. To such
Stockholder's knowledge, the execution and delivery of this Agreement by such
Stockholder does not, and the consummation by such Stockholder of the
transactions contemplated hereby will not, require any consent, approval,
authorization or permit of, or filing with or notification to, any government or
subdivision thereof, or any administrative, governmental or regulatory
authority, agency, commission, tribunal or body, domestic, foreign or
supranational, except for applicable requirements, if any, of the Exchange Act,
the Securities Act, Blue Sky Laws, the rules of any applicable exchange, state
takeover laws, the pre-merger notification requirements of the HSR Act, and
filings and recordation of appropriate merger documents as required by Wisconsin
Law or any other applicable law or regulation.
(c) Shares. The Existing Shares of such Stockholder
are, and the Subject Shares of such Stockholder as of the Effective Time will
be, owned beneficially and of record by such Stockholder, except as otherwise
permitted by this Agreement. The Existing Shares and all warrants, options or
other rights to acquire any shares of Company Common Stock (including the
applicable exercise price) owned, of record or beneficially, by such Stockholder
are set forth opposite such Stockholder's name on Schedule 2(c) attached hereto.
The Existing Shares of such
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Stockholder constitute all of the shares of Company Common Stock owned of record
or beneficially by such Stockholder as of the date hereof. All of the Existing
Shares of such Stockholder are issued and outstanding and except as set forth on
Schedule 2(c) attached hereto, such Stockholder does not own, of record or
beneficially, any warrants, options or other rights to acquire any shares of
Company Common Stock. Such Stockholder has sole voting power, sole power of
disposition, sole power to issue instructions with respect to the matters set
forth in Section 1 hereof, sole power to demand appraisal rights (to the extent
such rights are available) and sole power to agree to all of the matters set
forth in this Agreement, in each case with respect to all of the Existing Shares
of such Stockholder, and will have sole voting power, sole power of disposition,
sole power to issue instructions with respect to the matters set forth in
Section 1 hereof, sole power to demand appraisal rights (to the extent such
rights are available) and sole power to agree to all of the matters set forth in
this Agreement, in each case with respect to all of the Subject Shares of such
Stockholder as of the Effective Time, in each case with no limitations,
qualifications or restrictions on such rights, subject to applicable federal
securities laws and the terms of this Agreement. Such Stockholder has good and
valid title to the Existing Shares of such Stockholder and at all times during
the term hereof and on the Effective Time will have good and valid title to the
Subject Shares of such Stockholder, in each case, free and clear of all Liens,
except pursuant to the Pledge Agreement (as defined below), this Agreement, the
Merger Agreement or applicable securities laws.
(d) No Finder's Fees. No broker, investment banker,
financial advisor or other person is entitled to any broker's finder's,
financial advisor's or other similar fee or commission in connection with the
transactions contemplated hereby based upon arrangements made by or on behalf of
such Stockholder.
3. Representations and Warranties of Chairman. Chairman
additionally represents and warrants to Merger Sub that as of the date hereof no
event of default has occurred, or will occur as a result of the execution and
delivery of this Agreement or the Merger Agreement by Chairman or as a result of
the consummation of the transactions contemplated hereby and thereby, under (i)
the Amended and Restated Credit Agreement, dated June 22, 1999, by and among
Bank One, Wisconsin ("Bank One"), Chairman and Swiss-Tech, LLC (the "Credit
Agreement"), (ii) the Amended and Restated Collateral Pledge Agreement, dated
June 22, 1999 by and between Bank One and Chairman (the "Pledge Agreement") or
(iii) any other Collateral Document (as defined in the Credit Agreement).
4. Representations and Warranties of Merger Sub. Merger Sub
hereby represents and warrants to the Stockholders as of the date hereof as
follows:
(a) Organization. Merger Sub is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation.
(b) Corporate Authorization; Validity of Agreement;
Necessary Action. Merger Sub has full corporate power and authority to execute
and deliver this Agreement and to
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consummate the transactions contemplated hereby. The execution, delivery and
performance by Merger Sub of this Agreement and the consummation by Merger Sub
of the transactions contemplated hereby have been duly and validly authorized by
its Board of Directors and no other corporate action or proceedings on the part
of Merger Sub is necessary to authorize the execution and delivery by Merger Sub
of this Agreement and the consummation by Merger Sub of the transactions
contemplated hereby. This Agreement has been duly executed and delivered by
Merger Sub, and, assuming this Agreement constitutes a valid and binding
obligation of the Stockholders, constitutes a valid and binding obligation of
Merger Sub, enforceable in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at law),
an implied covenant of good faith and fair dealing and considerations of public
policy.
(c) No Conflict. The execution and delivery of this
Agreement by Merger Sub does not, and the consummation by Merger Sub of the
transactions contemplated hereby by will not (i) conflict with or violate the
charter documents, By-laws or other organizational documents of Merger Sub, (ii)
conflict with or violate any Law applicable to Merger Sub or by which any
property or asset of Merger Sub is bound or affected, except for such conflicts
or violations which would not, individually or in the aggregate, have a Merger
Sub Material Adverse Effect, or (iii) result in a violation or any breach of or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which Merger Sub is a party or by which Merger Sub or any property or asset
of Merger Sub is bound or affected, except for any such breaches or defaults
which would not materially impair the ability of Merger Sub to consummate the
transactions contemplated hereby.
(d) Required Filings and Consents. The execution and
delivery of this Agreement by Merger Sub does not, and the consummation by
Merger Sub of the transactions contemplated hereby will not require any consent,
approval, authorization or permit of, or filing with or notification to, any
government or subdivision thereof, or any administration, governmental or
regulatory authority, agency, commission, tribunal or body, domestic, foreign or
supranational, except (i) for applicable requirements, if any, of the Exchange
Act, the Securities Act, Blue Sky Laws, the rules of any applicable stock
exchange, state takeover laws, the pre-merger notification requirements of the
HSR Act, and filing and recordation of appropriate merger documents as required
by Wisconsin Law or any other applicable state law, and (ii) where the failure
to obtain such other consents, approvals, authorizations, or permits, or to make
such filings or notifications would not materially impair the ability of Merger
Sub to consummate the transactions contemplated hereby.
5. Additional Agreements of Executives. Immediately after the
closing of the Merger:
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(a) the Executives agree to enter into a Stockholders
Agreement and a Registration Rights Agreement substantially in the form attached
hereto as Exhibit A-1 and Exhibit A-2, respectively;
(b) the Chief Executive Officer agrees to, and Merger
Sub agrees to cause the Company to, enter into an Employment Agreement with the
Company substantially in the form attached hereto as Exhibit A-3; and
(c) the Chairman agrees to, and Merger Sub agrees to
cause the Company to, enter into an Employment Agreement with the Company
substantially in the form attached hereto as Exhibit A-4.
6. Further Assurances. From time to time prior to the
Effective Time, at any other party's request and without further consideration,
each party hereto shall execute and deliver such additional documents and take
all such further lawful action as may be necessary or desirable to consummate
and make effective, in the most expeditious manner practicable, the transactions
contemplated by this Agreement and the Merger Agreement.
7. Additional Covenants of the Stockholders.
(a) Filings. The Stockholders shall furnish to Merger
Sub all information required for any application or other filing to be made
pursuant to the rules and regulations of any applicable Law (including, without
limitation, all information required to be included in the Proxy Statement, a
Schedule 13D filing and a Schedule 13e-3 filing) in connection with the
transactions contemplated by the Merger Agreement.
(b) Confidentiality. Each Stockholder shall, and
shall use its reasonable best efforts to cause its officers, directors,
employees, accountants, consultants, legal counsel, agents and other
representatives, as applicable, to, keep confidential and not disclose to any
other person or use for its own benefit or the benefit of any other person, any
trade secrets or other confidential proprietary information in its or their
possession or control regarding Merger Sub, Parent, Saw Mill or any of their
respective affiliates. The obligation of the Stockholders under this Section
7(b) shall not apply to information which (i) is or becomes generally available
to the public without breach of the commitment provided for in this Section
7(b); or (ii) is required to be disclosed by law, order or regulation of a court
or tribunal or Governmental Authority; provided, however, that, in any such
case, the Stockholder subject to such requirement shall notify Merger Sub as
early as reasonably practicable prior to disclosure to allow Merger Sub to take
appropriate measures to preserve the confidentiality of such information.
(c) Public Announcements. The Stockholders shall
consult with Merger Sub before issuing (and give one another a reasonable
opportunity to comment on) any press release or otherwise making any public
statements with respect to this Agreement, the Merger Agreement
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or any of the Transactions. Prior to the Closing, the Stockholders shall not
issue any such press release or make any such public statement without the prior
consent of Merger Sub, except as may be required by Law and, in such case, shall
use reasonable efforts to consult with Merger Sub prior to such release or
statement being issued.
(d) Merger Agreement. Each of the Executives agrees
to perform all of his obligations under the Contribution Agreement and the
Merger Agreement, including such Executive's obligation to consummate the
Chairman Contribution and the CEO Contribution (as such terms are defined in the
Contribution Agreement).
(e) Credit Agreement. Chairman agrees to remove as
soon as possible, but in no event later than 60 days after the date hereof, any
Liens imposed on the Subject Shares pursuant to the Credit Agreement, the Pledge
Agreement or any other Collateral Document (as defined in the Credit Agreement).
(f) Termination of Other Agreements. Immediately
after the consummation of the Merger, (a) each of the Executives agrees that the
Shareholder Voting Agreement made effective as of December 30, 1985 by and
between the Executives shall automatically terminate without any further action
by the Executives and shall have no further force and effect and (b) each of the
Executives and the Chairman's Wife shall, and shall cause the Company and the
other parties named therein to, terminate the Stock Purchase Agreement entered
into as of December 30, 1985 by and among the Company, the Executives, the
Chairman's Wife and the other parties named therein, as amended by the Amendment
Agreement, dated February 28, 1986, and the Second Amendment Agreement, dated
January 23, 1987.
8. Termination. This Agreement (other than Sections 6,
7(b), 7(c) and 9 hereof) shall terminate, and no party shall have any rights or
obligations hereunder and this Agreement shall become null and void and have no
further effect upon the earliest to occur of (a) the Effective Time, (b)
termination of the Merger Agreement pursuant to Section 9.01(a), (b) or (e)
thereof or (c) nine months following the termination of the Merger Agreement
pursuant to Section 9.01(c), (d), (f) or (g) thereof. Nothing in this Section 8
shall relieve any party of liability for breach of this Agreement.
9. Fees and Expenses.
(a) In the event that the transactions contemplated
by the Merger Agreement are not consummated due to a material breach of any
representation, warranty, covenant or other agreement of any Stockholder set
forth in this Agreement or the Merger Agreement, then, in addition to the
remedies at law or equity for breach of the Merger Agreement or this Agreement,
the Executives shall, to the extent Merger Sub is not reimbursed by the Company
pursuant to the terms of the Merger Agreement, reimburse Merger Sub (or at
Merger Sub's direction, Saw Mill) by wire transfer of immediately available
funds to an account specified by Merger Sub an amount (such
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amount, the "Reimbursable Expenses") in cash equal to the lesser of (i) the
aggregate amount of (x) the costs, fees and expenses of counsel, accountants,
financial advisors and other experts and advisors as well as fees and expenses
incident to the negotiation, preparation and execution of this Agreement, the
Merger Agreement and the attempted financing and consummation of the
transactions contemplated by this Agreement and the Merger Agreement (including
investment banking and commitment fees), the related documentation and the
shareholders' meetings and consents ("Costs"), including without limitation, the
legal fees of the providers of the Commitment Letters and (y) out-of-pocket
expenses, in each case, of Parent, Merger Sub, Saw Mill and/or any of their
respective affiliates (as such Reimbursable Expenses may be estimated by Saw
Mill in good faith prior to the date of such reimbursement, subject to an
adjustment between the parties upon Saw Mill's definitive determination of such
Reimbursable Expenses) and (ii) $1,500,000.
(b) Notwithstanding anything contained herein to the
contrary, the obligations of the Executives under this Section 9 shall be
several.
(c) Except as otherwise provided in this Section 9,
all costs and expenses incurred in connection with this Agreement and the
consummation of the transactions contemplated hereby shall be borne solely and
entirely by the party incurring such expenses.
10. General Provisions.
(a) Amendment. This Agreement may not be amended
except by an instrument in writing signed by the party to be charged therewith.
(b) Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given if delivered personally,
telecopied (which is confirmed) or sent by overnight courier (providing proof of
delivery) to the parties at the following addresses (or at such other addresses
for a party as shall be specified by like notice):
(i) if to Merger Sub:
Saw Mill Capital LLC
00 Xxx Xxxx Xxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx Xxxxx
Xxxxx Xxxxxx
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with copies (which shall not constitute
notice) to:
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxxxx Xxxxx, Esq.
W. Xxxxx Xxxxxxx, Esq.
(ii) if to the Chief Executive Officer, to:
Xxxx Train
Xxxxx Incorporated
000 X. Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
with a copy (which shall not constitute
notice) to:
Xxxxx & Lardner
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Xxx Xxxxx
(iii) if to the Chairman, Chairman's Wife or the
Foundation, to:
Xxxxxxx X. Xxxxxx
Xxxxx Incorporated
000 X. Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
with a copy (which shall not constitute
notice) to:
Xxxxx & Lardner
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000-0000
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Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Xxx Xxxxx
(c) Interpretation. Whenever the words "include,"
"includes" or "including" are used in this Agreement they shall be deemed to be
followed by the words "without limitation." The phrases "the date of this
Agreement," "the date hereof," and terms of similar import, unless the context
otherwise requires, shall be deemed to refer to January 30, 2000.
(d) Counterparts. This Agreement may be executed in
two or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have been
signed by each of the parties and delivered to the other parties, it being
understood that all parties need not sign the same counterpart.
(e) Entire Agreement; No Third Party Beneficiaries.
This Agreement constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof, and is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.
(f) Severability. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any rule of
law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any party. Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in a mutually
acceptable manner in order that the transactions contemplated hereby may be
consummated as originally contemplated to the fullest extent possible.
(g) Assignment. 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 parties, except that Merger Sub may assign, in
Merger Sub's sole discretion, any or all of their respective rights, interests
and obligations hereunder to any affiliate of Merger Sub (including Saw Mill).
Subject to the preceding sentence, this Agreement will be binding upon, inure to
the benefit of and be enforceable by the parties 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.
(h) Enforcement; Governing Law; Waiver of Jury Trial.
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(i) The parties hereto agree that irreparable
damage would occur in the event any provision of this Agreement was not
performed in accordance with the terms hereof and that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to specific performance of the terms hereof, in addition to any other remedy
at law or in equity.
(ii) The provisions of this Agreement shall be
governed by and construed in accordance with the laws of the State of Wisconsin
(excluding any conflict of law rule or principle that would refer to the laws of
another jurisdiction). EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, TRIAL BY
JURY IN ANY SUIT, ACTION OR PROCEEDING ARISING HEREUNDER.
* * * * *
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IN WITNESS WHEREOF, Merger Sub and the Stockholders have
caused this Agreement to be executed as of the date first written above.
CALENDAR ACQUISITION CORP.
By: /s/ Xxxxxx Xxxxx
-----------------------------
Name: Xxxxxx Xxxxx
Title: President
STOCKHOLDERS
/s/ Xxxx Train
---------------------------------
Xxxx Train
/s/ Xxxxxxx X. Xxxxxx
---------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxx
---------------------------------
Xxxxx X. Xxxxxx
XXXXXX FAMILY FOUNDATION
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Trustee
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Trustee
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SCHEDULE 2(c)
Existing Shares Options/Warrants
Name of Stockholder Owned by Owned by Exercise Price of
Stockholder Stockholder Options/Warrants
Chief Executive Officer 3,256,679
Chairman 4,221,796
Chairman's Wife 73,746
Foundation 134,462
