EXHIBIT 99.1
JMS SHAREHOLDERS AGREEMENT AND IRREVOCABLE PROXY
THIS SHAREHOLDERS AGREEMENT AND IRREVOCABLE PROXY (this "Agreement") is
made and entered into as of March 7, 2004, by and among International Multifoods
Corporation, a Delaware corporation ("IMC"), 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
A. Concurrently with the execution of this Agreement, JMS, MIX Acquisition
Corporation, a Delaware corporation and wholly owned subsidiary of JMS ("MERGER
SUB"), and IMC 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 IMC with and into Merger
Sub (the "MERGER"). Following the Merger, Merger Sub will continue as the
surviving corporation (the "SURVIVING CORPORATION"). In the Merger, shares of
common stock of IMC, $0.10 par value ("IMC COMMON STOCK"), other than Dissenting
Shares and any shares of IMC Common Stock owned by JMS or any direct or indirect
subsidiary of JMS or held in the treasury of IMC, will be converted into the
right to receive shares of common stock, no par value per share, of JMS ("JMS
COMMON STOCK"), and cash, 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
"EXCHANGE ACT")) and exercises voting power 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 IMC 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) "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.
(b) "Shares" means all issued and outstanding shares of JMS Common Stock
listed opposite such Shareholder's name on Schedule A hereof.
(c) "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
IMC, 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 JMS Common Stock pursuant to 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 or Merger Sub 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, Merger Sub's or IMC'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 JMS Common Stock
pursuant to the Merger and the consummation of the Merger.
(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. At IMC's request, each Shareholder will deliver to
IMC 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:
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(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 any Shareholder from exercising any
option or warrant any Shareholder may hold (in accordance with the terms of such
option or warrant, as applicable) or require such exercise; provided, however,
that the securities acquired upon such exercise shall be deemed Shares.
(c) Each Shareholder agrees with, and covenants to, IMC 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) The foregoing restrictions shall not prohibit a transfer of Shares (i)
to any member of the Shareholder's immediate family, to a trust for the benefit
of such Shareholder or any member of the Shareholder's immediate family or a
transfer of Shares upon the death of any Shareholder; 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 IMC, to be bound by the terms and conditions of this Agreement and
execute and deliver to IMC a proxy in the form attached hereto.
3. Representations, Warranties and Covenants of Shareholder. Each
Shareholder hereby represents, warrants and covenants to IMC severally, and not
jointly, as follows:
3.1 Authority, Enforceability. Such Shareholder has the power and
authority or capacity 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.
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3.2 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 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.
3.3 Shares Owned. As of the date hereof, such Shareholder is the
beneficial owner and exercises voting power, with respect to, in the aggregate,
the Shares listed opposite such Shareholder's name 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
certain matters submitted for the approval of holders of JMS Common Stock in
accordance with the terms of the JMS Amended Articles of Incorporation (the "JMS
CHARTER").
3.4 Accuracy of Representations; Reliance by IMC. The representations and
warranties contained in this Agreement are accurate in all material respects as
of the date of this Agreement, will be accurate in all material respects at all
times through the Expiration Date and will be accurate in all material respects
as of the Effective Time of the Merger as if made on that date. Each Shareholder
understands and acknowledges that IMC is entering into the Merger Agreement in
reliance upon each Shareholder's execution and delivery of this Agreement.
3.5 Further Assurances. Each Shareholder agrees to execute and deliver any
additional documents reasonably necessary or desirable, in the reasonable
opinion of IMC, JMS or Merger Sub, to carry out the purposes and intent of this
Agreement and the Proxy.
3.6 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 their
capacity as the beneficial holder of such Shareholder's Shares.
3.7 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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3.8 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. Miscellaneous.
4.1 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.
4.2 Amendment; Waiver. This Agreement may be amended, modified,
superseded, canceled, renewed, or extended only by an agreement in writing
executed by IMC and each Shareholder. The failure by any party at any time to
require performance or compliance by another party of or with 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.
4.3 Anti-Takeover Provisions. In the event that any Takeover Statute or
similar Law or any anti-takeover provision in the JMS Charter is applicable to
this Agreement, the Proxy or the transactions contemplated hereby or thereby,
then this Agreement and the Proxy shall be limited and revised, without any
action by the parties hereto, to reduce the number of Shares covered by this
Agreement and the Proxy (proportionately among the Shareholders) to cover the
maximum number of Shares while rendering each such Takeover Statute, similar Law
or anti-takeover provision inapplicable.
4.4 Entire Agreement; No Third Party Beneficiaries. This Agreement,
together with the Merger Agreement and the documents to be executed and
delivered in connection therewith, 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 IMC and each Shareholder any rights or remedies hereunder.
4.5 Assignment. This Agreement and all rights and obligations hereunder
may not be transferred or assigned by any party hereto at any time. 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.
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4.6 Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of Delaware, whether common law or
statutory, without reference to the choice of law provisions thereof.
4.7 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 IMC:
International Multifoods Corporation
000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: General Counsel
Telecopy No.: (000) 000-0000
With a copy to:
Faegre & Xxxxxx LLP
2200 Xxxxx Fargo Center
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Telecopy No.: (000) 000-0000
If to JMS or Merger Sub:
The X. X. Xxxxxxx Company
Xxx Xxxxxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000-0000
Attention: General Counsel
Telecopy No.: (000) 000-0000
With a copy to:
Xxxxx Day
Xxxxx Xxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telecopy No.: (000) 000-0000
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If to the Shareholders:
At the address listed on Schedule A.
With a copy to:
The X. X. Xxxxxxx Company
Xxx Xxxxxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000-0000
Attention: General Counsel
Telecopy No.: (000) 000-0000
4.8 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 take all actions as are necessary on its part to the
consummation of the Merger, 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.
4.9 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.
4.10 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.
4.11 Termination. This Agreement will be terminated and will be of no
further force and effect upon the Expiration Date.
4.12 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.
4.13 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 4.11.
4.14 Legal Counsel. Each Shareholder acknowledges that it has been advised
by, 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.
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4.15 Agreement Negotiated. The form of this Agreement has been negotiated
by or on behalf of JMS and IMC, 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.
4.16 Legends. Any stock certificates representing the Shares shall at the
request of IMC reflect this Agreement and, if applicable, the irrevocable proxy
granted by this Agreement.
[Intentionally Left Blank]
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IN WITNESS WHEREOF, the undersigned parties have executed this Agreement
as of the date first above written.
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxx
Individually
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxx
Individually
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxx
Trustee, Protected Trust and Exempt Trust
FBO Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxx
Trustee, Protected Trust and Exempt Trust
FBO Xxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxx
Trustee, Protected Trust and Exempt Trust
FBO Xxxxx X. Xxxxxxxx
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International Multifoods Corporation
By: /s/ Xxxx X. Xxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chairman of the Board,
President and
Chief Executive Officer
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EXHIBIT 1 TO SHAREHOLDERS AGREEMENT
IRREVOCABLE PROXY
The undersigned shareholder (the "SHAREHOLDER") of The X. X. Xxxxxxx
Company, an Ohio corporation, ("JMS") hereby irrevocably (to the fullest extent
permitted by applicable law) appoints and constitutes those officers of
International Multifoods Corporation, a Delaware corporation ("IMC") designated
by IMC 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 such Shareholder's Shares (as defined in the Shareholders
Agreement).
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 JMS Shareholders Agreement and Irrevocable Proxy dated as of the date
hereof, between IMC 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 common shares, no par value per
share, of JMS (the "JMS COMMON STOCK") pursuant to the merger (the
"MERGER") contemplated by the Agreement and Plan of Merger by and
among JMS, MIX Acquisition Corporation, a Delaware corporation and a
wholly owned subsidiary of JMS, ("MERGER SUB"), and IMC, dated as of
the date hereof (the "MERGER Agreement"), 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 or Merger Sub 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, Merger Sub's or IMC'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 issuance of the JMS Common
Stock pursuant to the Merger and the consummation of the Merger.
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
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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)
until terminated in accordance with its terms.
Dated: March __, 2004
SHAREHOLDER
By:
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