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VOTING AGREEMENT
dated as of September 5, 1997
by and between
XXXXXX-FIELD HEALTH PRODUCTS, INC.
and
XXXX X. XXXXXXX
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TABLE OF CONTENTS
This Table of Contents is not part of the Voting Agreement to
which it is attached but is inserted for convenience only.
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No.
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ARTICLE I
DEFINITIONS
1.01 Definitions...................................................................................... 1
ARTICLE II
TRANSFER OF SHARES
2.01 Restriction on Certain Transfers................................................................. 3
ARTICLE III
COVENANTS OF THE STOCKHOLDER IN CONNECTION WITH THE MERGER
3.01 Ownership of Target Shares; Approval of Merger
Agreement................................................................................ 4
3.02 No Solicitation.................................................................................. 4
3.03 Director Actions................................................................................. 5
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
4.01 Authority........................................................................................ 5
4.02 No Conflicts..................................................................................... 5
4.03 Governmental Approvals and Filings............................................................... 6
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
5.01 Incorporation.................................................................................... 6
5.02 Authority........................................................................................ 6
5.03 No Conflicts..................................................................................... 7
5.04 Governmental Approvals and Filings............................................................... 7
ARTICLE VI
GENERAL PROVISIONS
6.01 Survival of Representations, Warranties,
Covenants and Agreements................................................................. 7
6.02 Termination...................................................................................... 8
6.03 Amendment and Waiver............................................................................. 8
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6.04 Notices ......................................................................................... 8
6.05 Entire Agreement................................................................................. 9
6.06 No Third Party Beneficiary....................................................................... 9
6.07 No Assignment; Binding Effect.................................................................... 10
6.08 Specific Performance; Legal Fees................................................................. 10
6.09 Headings......................................................................................... 10
6.10 Invalid Provisions............................................................................... 10
6.11 Governing Law.................................................................................... 10
6.12 Consent to Jurisdiction and Service of Process................................................... 10
6.13 Counterparts..................................................................................... 11
SCHEDULE
Schedule I Target Shares Owned by the Stockholder
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This VOTING AGREEMENT dated as of September 5, 1997 is made
and entered into by and between Xxxxxx-Field Health Products, Inc., a Delaware
corporation (the "Company"), and Xxxx X. Xxxxxxx (the "Stockholder").
WHEREAS, the Company, GFHP Acquisition Corp., a Delaware
corporation wholly-owned by the Company ("Sub"), and Xxxxx Enterprises, Inc., a
Delaware corporation ("Target"), have entered into an Agreement and Plan of
Merger of even date herewith (the "Merger Agreement"), which provides for the
merger of Sub with and into Target and for Target to become a wholly-owned
subsidiary of the Company (the "Merger");
WHEREAS, at the Effective Time (as defined below) and in
accordance with the terms of the Merger Agreement, each share of common stock,
par value $2.50 per share, of Target (the "Target Common Stock") will be
converted into shares of common stock, par value $.025 per share, of the Company
(the "Company Common Stock"), all as more fully described in the Merger
Agreement;
WHEREAS, the Stockholder owns the number of shares of Target
Common Stock set forth opposite the Stockholder's name on Schedule I hereto; and
WHEREAS, as a condition to the Company's willingness to
consummate the Merger and to the Stockholder's willingness to vote his shares of
Target Common Stock in favor of the Merger, the Stockholder and the Company
desire to establish in this Voting Agreement certain terms and conditions
concerning the voting of the Stockholder's shares of Target Common Stock with
respect to the Merger and the disposition of his shares of Company Common Stock
received in the Merger;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Voting Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.01 Definitions. (a) Except as otherwise specifically
indicated, the following terms have the following meanings for all purposes of
this Voting Agreement:
"Affiliate" shall have the meaning assigned thereto in Rule
405, as presently promulgated under the Securities Act.
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"beneficially owns" (or comparable variations thereof) has the
meaning set forth in Rule 13d-3 promulgated under the Exchange Act.
"Board of Directors" means the Board of Directors of the
Company.
"DGCL" means the General Corporation Law of the State of
Delaware.
"Effective Time" means the time at which the Merger becomes
effective under the DGCL.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Governmental or Regulatory Authority" means any court,
tribunal, arbitrator, authority, agency, commission, official or other
instrumentality of the United States, any foreign country or any domestic or
foreign state, county, city or other political subdivision.
"Liens" means any lien, claim, mortgage, encumbrance, pledge,
security interest, equity or charge of any kind.
"Person" means any individual, corporation, partnership,
trust, other entity or group (within the meaning of Section 13(d)(3) of the
Exchange Act).
"Representatives" of the Stockholder means the Stockholder's
legal, investment banking and financial advisors, accountants and any other
agents and representatives.
"Rule 145" means Rule 145 as presently promulgated under the
Securities Act.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Subsidiary" means any Person in which the Company or Target,
as the case may be, directly or indirectly through Subsidiaries or otherwise,
beneficially owns more than fifty percent (50%) of either the equity interest
in, or the Voting Power of, such Person.
(b) In addition, the following terms are defined in the
Sections set forth below:
"Alternative Proposal" -- Section 3.02
"Company" -- Preamble
"Company Common Stock" -- Preamble
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"Dispose" or "Disposition" -- Section 2.01(a)
"Merger" -- Preamble
"Merger Agreement" -- Preamble
"Registration Rights Agreement" -- Section 2.01(b)
"Stockholder" -- Preamble
"Sub" -- Preamble
"Target" -- Preamble
"Target Common Stock" -- Preamble
"Target Shares" -- Section 3.01(a)
"Target Stockholders' Meeting" -- Section 3.01(c)
(c) Unless the context of this Voting Agreement otherwise requires, (i)
words of any gender include each other gender; (ii) words using the singular or
plural number also include the plural or singular number, respectively; (iii)
the terms "hereof," "herein," "hereby" and derivative or similar words refer to
this entire Voting Agreement; and (iv) the terms "Article" or "Section" refer to
the specified Article or Section of this Voting Agreement. Whenever this Voting
Agreement refers to a number of days, such number shall refer to calendar days
unless business days are specified.
ARTICLE II
TRANSFER OF SHARES
2.01 Restriction on Certain Transfers. (a) Following the
Effective Time, the Stockholder will not assign, sell, pledge, hypothecate or
otherwise transfer or dispose of ("Dispose" or a "Disposition") any shares of
Company Common Stock received by him in the Merger except in compliance with
federal and state securities laws, including without limitation, Rule 145. The
certificates representing the shares of Company Common Stock to be received by
the Stockholder in the Merger in exchange for the certificates representing his
shares of Target Common Stock will not contain any legend, other than any legend
required under Rule 145.
(b) Following the date hereof and prior to the Effective Time,
the Company and the Stockholder will negotiate in good faith such amendments to
the terms of the Registration Rights Agreement dated the 8th day of November,
1995 by and among Target and the Stockholder (the "Registration Rights
Agreement") as may be necessary in order to make the Registration Rights
Agreement applicable to the shares of Company Common Stock to be received by the
Stockholder in the Merger on a basis consistent, and not in conflict, with
registration rights agreements to which the Company is currently a party, while
at the same time preserving, to the extent practicable, the Stockholder's rights
under the Registration Rights Agreement. Nothing contained in the previous
sentence shall require the Company to obtain any
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consent or waiver of any other party to any registration rights agreement to
which the Company is currently a party.
ARTICLE III
COVENANTS OF THE STOCKHOLDER IN CONNECTION WITH THE MERGER
3.01 Ownership of Target Shares; Approval of Merger Agreement.
(a) The Stockholder represents and warrants to the Company that the Stockholder
owns, beneficially and of record, as of the date hereof, the number of shares of
Target Common Stock listed on Schedule I hereto (collectively, the "Target
Shares"), subject to no rights of others and free and clear of all Liens. The
Stockholder's right to vote or Dispose of the Target Shares is not subject to
any voting trust, voting agreement, voting arrangement or proxy and the
Stockholder has not entered into any contract, option or other arrangement or
undertaking with respect thereto.
(b) Until the Effective Time, the Stockholder will not Dispose
of any of the Target Shares or any interest therein, exercise any right of
conversion with respect to the Target Shares, deposit any of the Target Shares
into a voting trust or enter into a voting agreement or arrangement or grant any
proxy with respect thereto or enter into any contract, option or other
arrangement or undertaking with respect to the direct or indirect Disposition of
any of the Target Shares.
(c) The Stockholder will, with respect to those Target Shares
that the Stockholder either owns of record on the record date for voting at any
annual or special meeting of Target stockholders to be held for the purpose of
voting on the adoption of the Merger Agreement or for granting any written
consent in connection with the solicitation of written consents in lieu of such
a meeting (collectively, the "Target Stockholders' Meeting") or with respect to
which the Stockholder otherwise controls the vote, vote or cause to be voted
such shares (or execute written consents with respect to such shares) (i) in
favor of the adoption of the Merger Agreement and the approval of the Merger and
the other transactions contemplated by the Merger Agreement, (ii) against any
Alternative Proposal (as defined in Section 3.02) and (iii) in favor of any
other matter necessary for the consummation of the transactions contemplated by
the Merger Agreement, including without limitation at the Target Stockholders'
Meeting.
3.02 No Solicitation. Prior to the Effective Time, and subject
to Section 3.03, the Stockholder shall not, and the Stockholder shall use his
best efforts to cause his Affiliates and Representatives not to, initiate,
solicit or encourage, directly or indirectly, any inquiries or the making or
implementation of any proposal or offer (including, without limitation, any
proposal or offer to the stockholders of Target)
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with respect to a merger, consolidation or other business combination including
Target or any of its Subsidiaries or any acquisition or similar transaction
(including, without limitation, a tender or exchange offer) involving the
purchase of all or any significant portion of the assets of Target and its
Subsidiaries taken as a whole or any outstanding shares of the capital stock of
Target or any Subsidiary of Target (any such proposal or offer being hereinafter
referred to as an "Alternative Proposal"), or engage in any negotiations
concerning, or provide any confidential information or data to, or have any
discussions or enter into any agreements, arrangements or understandings,
whether written or oral, with, any Person relating to an Alternative Proposal
(excluding the transactions contemplated by the Merger Agreement), or otherwise
facilitate any effort or attempt to make or implement an Alternative Proposal.
The Stockholder will promptly notify the Company if any such inquiries,
proposals or offers are received by, any such information is requested from, or
any such negotiations or discussions are sought to be initiated or continued
with, him or any of such Persons.
3.03 Director Actions. Notwithstanding any other provision of
this Voting Agreement to the contrary, the covenants and agreements set forth
herein shall not prevent the Stockholder from taking any action, subject to the
applicable provisions of the Merger Agreement, while acting in his capacity as a
director of Target in accordance with his fiduciary duties.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Stockholder hereby represents and warrants to the Company
as follows:
4.01 Authority. This Voting Agreement has been duly and
validly executed and delivered by the Stockholder and constitutes a legal, valid
and binding obligation of the Stockholder enforceable against the Stockholder in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
4.02 No Conflicts. The execution and delivery by the
Stockholder of this Voting Agreement do not, and the performance by the
Stockholder of his obligations under this Voting Agreement
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and the consummation of the transactions contemplated hereby will not:
(a) conflict with or result in a violation or breach of any
term or provision of any law, statute, rule or regulation or any order, judgment
or decree of any Governmental or Regulatory Authority applicable to the
Stockholder or any of his properties or assets; or
(b) (i) conflict with or result in a violation or breach of,
(ii) constitute (with or without notice or lapse of time or both) a default
under, (iii) require the Stockholder to obtain any consent, approval or action
of, make any filing with or give any notice to any Person as a result or under
the terms of, or (iv) result in the creation or imposition of any Lien upon any
of the Stockholder's properties or assets under, any contract, agreement, plan,
permit or license to which the Stockholder is a party.
4.03 Governmental Approvals and Filings. No consent, approval
or action of, filing with or notice to any Governmental or Regulatory Authority
on the part of the Stockholder is required in connection with the execution,
delivery and performance of this Voting Agreement or the consummation of the
transactions contemplated hereby, other than filings under the Exchange Act in
connection with the Stockholder's acquisition of Company Common Stock and the
other transactions contemplated hereby and by the Merger Agreement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Stockholder
as follows:
5.01 Incorporation. The Company is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware. The Company has the requisite corporate power and authority to
execute and deliver this Voting Agreement, to perform its obligations hereunder
and to consummate the transactions contemplated hereby.
5.02 Authority. The execution and delivery by the Company of
this Voting Agreement, and the performance by the Company of its obligations
hereunder, have been duly and validly authorized by the Board of Directors of
the Company, no other corporate action on the part of the Company or its
stockholders being necessary. This Voting Agreement has been duly and validly
executed and delivered by the Company and constitutes a legal, valid and binding
obligation of the Company in accordance with its terms, except as enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws
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affecting the enforcement of creditors' rights generally and by general
equitable principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
5.03 No Conflicts. The execution and delivery by the Company
of this Voting Agreement do not, and the performance by the Company of its
obligations under this Voting Agreement and the consummation of the transactions
contemplated hereby will not:
(a) conflict with or result in a violation or breach of any of
the terms, conditions or provisions of the certificate of incorporation or
bylaws of the Company;
(b) conflict with or result in a violation or breach of any
term or provision of any law, statute, rule or regulation or any order, judgment
or decree of any Governmental or Regulatory Authority applicable to the Company
or any of its properties or asset; or
(c) (i) conflict with or result in a violation or breach of,
(ii) constitute (with or without notice or lapse of time or both) a default
under, (iii) require the Company to obtain any consent, approval or action of,
make any filing with or give any notice to any Person as a result or under the
terms of, or (iv) result in the creation or imposition of any Lien upon the
Company or any of its properties or assets under, any contract, agreement, plan,
permit or license to which the Company is a party.
5.04 Governmental Approvals and Filings. No consent, approval
or action of, filing with or notice to any Governmental or Regulatory Authority
on the part of the Company is required in connection with the execution,
delivery and performance of this Stockholders Agreement or the consummation of
the transactions contemplated hereby, other than filings under the Exchange Act
in connection with the Stockholder's voting agreement contained in this Voting
Agreement and the other transactions contemplated hereby and by the Merger
Agreement.
ARTICLE VI
GENERAL PROVISIONS
6.01 Survival of Representations, Warranties, Covenants and
Agreements. Notwithstanding any right of any party (whether or not exercised) to
investigate the accuracy of the representations and warranties of the other
party contained in this Voting Agreement, each party hereto has the right to
rely fully upon the representations and warranties of the other contained in
this Voting Agreement. Except as provided in Section 6.02, the representations,
warranties, covenants and
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agreements of each party hereto contained in this Voting Agreement will survive
until the termination of this Voting Agreement.
6.02 Termination. This Voting Agreement and all rights and
obligations of the parties hereunder, including, without limitation, the
provisions of Section 3.01 and Section 3.02, shall automatically terminate, and
shall cease to be of any further force and effect, upon the earlier to occur of
(i) the termination of the Merger Agreement in accordance with its terms, and
(ii) the mutual written agreement of the Stockholder and the Company.
Notwithstanding the termination of this Voting Agreement, nothing contained
herein shall relieve any party hereto from liability for breach of any of his or
its representations, warranties, covenants or agreements contained in this
Voting Agreement.
6.03 Amendment and Waiver. (a) This Voting Agreement may be
amended, supplemented or modified only by a written instrument duly executed by
or on behalf of each party hereto.
(b) Any term or condition of this Voting Agreement may be
waived at any time by the party that is entitled to the benefit thereof, but no
such waiver shall be effective unless set forth in a written instrument duly
executed by or on behalf of the party waiving such term or condition. No waiver
by any party of any term or condition of this Voting Agreement, in any one or
more instances, shall be deemed to be or construed as a waiver of the same or
any other term or condition of this Voting Agreement on any future occasion. All
remedies, either under this Voting Agreement or by law or otherwise afforded,
will be cumulative and not alternative.
6.04 Notices. All notices, requests and other communications
hereunder must be in writing and will be deemed to have been duly given only if
delivered personally or by facsimile transmission or mailed (first class postage
prepaid) to the parties at the following addresses or facsimile numbers:
If to the Stockholder, to:
Xx. Xxxx X. Xxxxxxx
000 Xxxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Facsimile No.: (000) 000-0000
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with a copy to:
Dow, Xxxxxx & Xxxxxxxxx
0000 Xxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000-0000
Facsimile No.: (000) 000-0000
Attn: Xxxxxx X. X'Xxxxxxx, Esq.
If to the Company, to:
Xxxxxx-Field Health Products, Inc.
000 Xxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
with a copy to:
Milbank, Tweed, Xxxxxx & XxXxxx
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxx X. Xxxxx, Esq.
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt, and (iii) if delivered
by mail in the manner described above to the address as provided in this
Section, be deemed given upon receipt (in each case regardless of whether such
notice, request or other communication is received by any other person to whom a
copy of such notice, request or other communication is to be delivered pursuant
to this Section). Any party from time to time may change its address, facsimile
number or other information for the purpose of notices to that party by giving
notice specifying such change to the other parties hereto.
6.05 Entire Agreement. This Voting Agreement supersedes all
prior discussions and agreements between the parties hereto with respect to the
subject matter hereof, and contains the sole and entire agreement between the
parties hereto with respect to the subject matter hereof.
6.06 No Third Party Beneficiary. The terms and provisions of
this Voting Agreement are intended solely for the benefit of each party hereto,
and it is not the intention of the parties to confer third-party beneficiary
rights upon any other Person.
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6.07 No Assignment; Binding Effect. Neither this Voting
Agreement nor any right, interest or obligation hereunder may be assigned by any
party hereto without the prior written consent of the other party hereto and any
attempt to do so will be void. Subject to the preceding sentence, this Voting
Agreement is binding upon, inures to the benefit of and is enforceable by the
parties hereto and their respective successors and assigns and legal
representatives.
6.08 Specific Performance; Legal Fees. The parties acknowledge
that money damages are not an adequate remedy for violations of any provision of
this Voting Agreement and that any party may, in his or its sole discretion,
apply to a court of competent jurisdiction for specific performance for
injunctive or such other relief as such court may deem just and proper in order
to enforce any such provision or prevent any violation hereof and, to the extent
permitted by applicable law, each party waives any objection to the imposition
of such relief. The parties hereto agree that, in the event that any party to
this Voting Agreement shall bring any legal action or proceeding to enforce or
to seek damages or other relief arising from an alleged breach of any term or
provision of this Voting Agreement by the other party, the prevailing party in
any such action or proceeding shall be entitled to an award of, and the other
party to such action or proceeding shall pay, the reasonable fees and expenses
of legal counsel to the prevailing party.
6.09 Headings. The headings used in this Voting Agreement have
been inserted for convenience of reference only and do not define or limit the
provisions hereof.
6.10 Invalid Provisions. If any provision of this Voting
Agreement is held to be illegal, invalid or unenforceable under any present or
future law, and if the rights or obligations of any party hereto under this
Voting Agreement will not be materially and adversely affected thereby, (i) such
provision will be fully severable, (ii) this Voting Agreement will be construed
and enforced as if such illegal, invalid or unenforceable provision had never
comprised a part hereof and (iii) the remaining provisions of this Voting
Agreement will remain in full force and effect and will not be affected by the
illegal, invalid or unenforceable provision or by its severance herefrom.
6.11 Governing Law. Except to the extent that the DGCL is
mandatorily applicable to the rights and obligations of the parties, this Voting
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to a contract executed and performed in such State,
without giving effect to the conflicts of laws principles thereof.
6.12 Consent to Jurisdiction and Service of Process. Each
party hereby irrevocably submits to the exclusive
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jurisdiction of the United States District Court for the Southern District of
New York or any court of the State of New York located in the Borough of
Manhattan in the City of New York in any action, suit or proceeding arising in
connection with this Voting Agreement, agrees that any such action, suit or
proceeding shall be brought only in such court (and waives any objection based
on forum non conveniens or any other objection to venue therein to the extent
permitted by law), and agrees to delivery of service of process by any of the
methods by which notices may be given pursuant to Section 6.04, with such
service being deemed given as provided in such Section; provided, however, that
such consent to jurisdiction is solely for the purpose referred to in this
Section 6.12 and shall not be deemed to be a general submission to the
jurisdiction of said courts or in the State of New York other than for such
purpose. Nothing herein shall affect the right of any party to serve process in
any other manner permitted by law or to commence legal proceedings or otherwise
proceed against the other in any other jurisdiction.
6.13 Counterparts. This Voting Agreement may be executed in
any number of counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same instrument.
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IN WITNESS WHEREOF, each party hereto has signed this Voting
Agreement, or caused this Voting Agreement to be signed by its officer thereunto
duly authorized, as of the date first above written.
XXXXXX-FIELD HEALTH PRODUCTS, INC.
By:______________________________
Name:
Title:
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XXXX X. XXXXXXX
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SCHEDULE I
Target Shares Owned by Stockholder
Stockholder Number
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Xxxx X. Xxxxxxx(1) 700,000
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(1) Includes 100,000 shares issuable upon the exercise of outstanding stock
options.
