EXHIBIT 10.1
STOCKHOLDER'S AGREEMENT
This STOCKHOLDER'S AGREEMENT (this "Agreement") is made and entered into
as of November 16, 2004, by and between CTS Corporation, an Indiana corporation
("Parent") and Thomas M. Wheeler Trust U/T/D 4/9/86, a stockholder of SMTEK
International, Inc., a Delaware corporation (the "Company"), ("Stockholder"").
RECITALS
A. Concurrently with the execution of this Agreement, Parent, Cardinal
Acquisition, Inc., a Delaware corporation and wholly owned subsidiary of Parent
("Merger Sub"), and the Company are entering into an Agreement and Plan of
Merger, dated the date hereof (as such agreement may hereafter be amended from
time to time, the "Merger Agreement"), which provides for the merger of Merger
Sub with and into the Company (the "Merger"), upon the terms and subject to the
conditions set forth in the Merger Agreement and in accordance with the General
Corporation Law of the State of Delaware. Following the Merger, the Company will
continue as the surviving corporation. In the Merger, each issued and
outstanding share of Company Common Stock (as defined in the Merger Agreement),
other than Dissenting Shares (as defined in the Merger Agreement) and any shares
of Company Common Stock owned by Parent or any direct or indirect subsidiary of
Parent or held in the treasury of the Company, will be converted into the right
to receive the Merger Consideration (as defined in the Merger Agreement) as
provided in the Merger Agreement.
B. As of the date hereof, Stockholder is the beneficial owner of (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended) and
has the sole right to vote and dispose of such number of shares of Company
Common Stock (the "Shares") listed on Schedule A attached hereto.
C. Stockholder is entering into this Agreement as a material inducement
and consideration to each of Parent and Merger Sub to enter into the Merger
Agreement.
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements contained in this Agreement, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and upon the terms and subject to the conditions set forth herein,
the parties hereto agree as follows:
1. Definitions. Capitalized terms that are used in this Agreement and are
not otherwise defined herein will have the meanings ascribed to such terms in
the Merger Agreement.
(a) "Termination 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) "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. Representations and Warranties of Stockholder. Subject to the
limitations and covenants on Schedule B hereto, Stockholder hereby represents
and warrants to Parent as follows:
2.1 Authority; Enforceability. Stockholder has the capacity or
requisite corporate power and authority, as applicable, to enter into this
Agreement and to consummate the transactions contemplated by this Agreement. The
execution and delivery of this Agreement by Stockholder and the consummation by
Stockholder of the transactions contemplated hereby have been duly authorized by
all necessary corporate or other action on the part of Stockholder. This
Agreement has been duly executed and delivered by Stockholder, and, assuming the
due authorization, execution and delivery by Parent, constitutes the legal,
valid and binding obligation of Stockholder, enforceable against Stockholder in
accordance with its terms, except as the enforcement thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
generally affecting the rights of creditors and subject to general equity
principles.
2.2 Noncontravention; Consents. The execution and delivery of this
Agreement by Stockholder does not, and the consummation of the transactions
contemplated by this Agreement and compliance with the provisions of this
Agreement by Stockholder will not, (i) conflict with the certificate of
incorporation or by-laws (or comparable organizational documents) of
Stockholder, if applicable, (ii) result in any breach, violation or default
(with or without notice or lapse of time, or both) under, or give rise to a
right of termination, cancellation or creation or acceleration of any obligation
or right of a third party or loss of a benefit under, or result in the creation
of any Lien upon any of the properties or assets of Stockholder, any loan or
credit agreement, note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise, license or other authorization
applicable to Stockholder, or its respective properties or assets or (iii)
subject to the governmental filings and other matters referred to in the
following sentence, conflict with or violate any judgment, order, decree or Law
applicable to Stockholder, or its respective properties or assets, other than,
in the case of clauses (ii) and (iii), any such conflicts, breaches, violations,
defaults, rights, losses or Liens that, individually or in the aggregate, would
not materially impair the ability of Stockholder to consummate the transactions
contemplated by this Agreement. No consent, approval, order or authorization of,
action by or in respect of, or registration, declaration or filing with, any
Governmental Entity or any third party is required by Stockholder in connection
with the execution and delivery of this Agreement by Stockholder or the
consummation by Stockholder of the transactions contemplated hereby, except for
the filing with the SEC of such reports under Section 13(a), 13(d), 15(d) or
16(a) of the Exchange Act as may be required in connection with this Agreement
and the transactions contemplated hereby and such consents, approvals, orders,
or authorizations the failure of which to be made or obtained, individually or
in the aggregate, would not materially impair the ability of Stockholder to
consummate the transactions contemplated by this Agreement.
2.3 Shares Owned. As of the date hereof, Stockholder is the sole
record and beneficial owner of the Shares free and clear of any Liens.
Stockholder holds exclusive power to vote the Shares. The foregoing is subject
to the limitations and covenants set forth on Schedule B hereto.
3. Representations and Warranties of Parent. Parent hereby represents and
warrants to Stockholder as follows:
3.1 Authority; Enforceability. Parent has all requisite corporate
power and authority to enter into this Agreement and to consummate the
transactions contemplated by this Agreement. The execution and delivery of this
Agreement by Parent and the consummation by Parent of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of Parent. This Agreement has been duly executed and delivered by
Parent, and, assuming the due authorization, execution and delivery by the
Stockholders, constitutes the legal, valid and binding obligation of Parent,
enforceable against Parent in accordance with its terms, except as the
enforcement thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws generally affecting the rights of
creditors and subject to general equity principles.
3.2 Noncontravention; Consents. The execution and delivery of this
Agreement by Parent does not, and the consummation of the transactions
contemplated by this Agreement and compliance with the provisions of this
Agreement by Parent will not, (i) conflict with the certificate of incorporation
or by-laws of
Parent, (ii) result in any breach, violation or default (with or without notice
or lapse of time, or both) under, or give rise to a right of termination,
cancellation or creation or acceleration of any obligation or right of a third
party or loss of a benefit under, or result in the creation of any Lien upon any
of the properties or assets of Parent under, any loan or credit agreement, note,
bond, mortgage, indenture, lease or other agreement, instrument, permit,
concession, franchise, license or other authorization applicable to Parent or
its properties or assets or (iii) subject to the governmental filings and other
matters referred to in the following sentence, conflict with or violate any
judgment, order, decree or Law applicable to Parent or its properties or assets,
other than, in the case of clauses (ii) and (iii), any such conflicts, breaches,
violations, defaults, rights, losses or Liens that, individually or in the
aggregate, would not materially impair the ability of Parent to consummate the
transactions contemplated by this Agreement. No consent, approval, order or
authorization of, action by or in respect of, or registration, declaration or
filing with, any Governmental Entity or any third party is required by Parent in
connection with the execution and delivery of this Agreement by Parent or the
consummation by Parent of the transactions contemplated hereby, except for the
filing with the SEC of such reports under Section 13(a), 13(d), 15(d) or 16(a)
of the Exchange Act as may be required in connection with this Agreement and the
transactions contemplated hereby and such consents, approvals, orders, or
authorizations the failure of which to be made or obtained, individually or in
the aggregate, would not materially impair the ability of Parent to consummate
the transactions contemplated by this Agreement.
4. Agreement to Vote.
4.1 Voting. (a) Subject to the limitations and covenants on Schedule
B hereto, Stockholder hereby covenants and agrees that, prior to the Termination
Date, at any meeting (whether annual or special and whether or not an adjourned
or postponed meeting) of the stockholders of the Company, however called, and in
any action taken by the written consent of stockholders of the Company without a
meeting, Stockholder will appear at the meeting or otherwise cause the 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 adoption and approval of the Merger Agreement,
the Merger and the other transactions contemplated by the Merger
Agreement, 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
the Company in the Merger Agreement or that would delay or hinder
the consummation of the Merger or that would preclude fulfillment of
a condition precedent to the Closing under the Merger Agreement,
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 Merger, including, without
limitation, any Company Takeover Proposal or Superior Proposal.
(b) Prior to the Termination Date, Stockholder 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 4.1.
4.2 Irrevocable Proxy. Subject to the limitations and covenants on
Schedule B hereto, contemporaneously with the execution of this Agreement,
Stockholder will deliver to Parent a proxy with respect to Stockholder'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.
4.3 Transfer and Other Restrictions. Subject to the limitations and
covenants on Schedule B hereto,
(a) From the date hereof until the Termination Date, Stockholder
agrees not to, directly or indirectly:
(i) 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 Stockholder contained herein untrue or incorrect or have
the effect of preventing or disabling Stockholder from performing
its obligations under this Agreement.
(b) Stockholder agrees with, and covenants to, Parent that
Stockholder shall not request that the Company register the Transfer (book-entry
or otherwise) of any certificate or uncertificated interest representing any
Shares.
4.4 Adjustments. Subject to the limitations and covenants on
Schedule B hereto,
(a) In the event (i) of any stock dividend, stock split,
recapitalization, reclassification, combination or exchange of shares of capital
stock or other securities of the Company on, of or affecting the Shares, or the
like, or any other action that would have the effect of changing Stockholder's
ownership of the Company's capital stock or other securities or (ii) Stockholder
becomes the beneficial owner of any additional capital stock of the Company or
other securities of the Company, then the terms of this Agreement will apply to
the shares of capital stock held by Stockholder immediately following the
effectiveness of the events described in clause (i) or Stockholder becoming the
beneficial owner thereof, as described in clause (ii), as though they were
Shares of Stockholder hereunder.
(b) Stockholder hereby agrees to promptly notify the Company and
Parent of the number of any new shares of Company Common Stock or other
securities of the Company acquired by Stockholder after the date hereof.
4.5 Acquisition Proposals. Subject to the limitations and covenants
on Schedule B hereto,
(a) Stockholder, shall, and, if applicable, shall cause its
subsidiaries, and its and their officers, directors, employees, financial
advisors, attorneys, accountants and other advisors, investment bankers,
representatives and agents retained by Stockholder or any of its subsidiaries
(collectively, "Representatives") to, immediately cease and cause to be
terminated immediately all existing activities, discussions and negotiations
with any parties conducted heretofore with respect to, or that could reasonably
be expected to lead to, any Company Takeover Proposal.
(b) Stockholder, shall not, nor shall it permit any of its
subsidiaries and its and their Representatives to, directly or indirectly (i)
solicit, initiate or encourage (including by way of furnishing information) or
take any other action designed to facilitate, any inquiries or the making of any
proposal that constitutes, or would be reasonably likely to lead to, a Company
Takeover Proposal, (ii) enter into any agreement, arrangement or understanding
with respect to any Company Takeover Proposal or enter into any agreement,
arrangement or understanding requiring the Company to abandon, terminate or fail
to consummate the Merger or any other transaction contemplated by the Merger
Agreement, or (iii) initiate or participate in any way in any discussions or
negotiations regarding, or furnish or disclose to any person (other than a party
to this Agreement) any information with respect to, or take any other action to
facilitate or in furtherance of any inquires or the making of any proposal that
constitutes, or could reasonably be expected to lead to, any Company Takeover
Proposal.
(c) Stockholder shall promptly (but in any event within one calendar
day) advise Parent in writing of the receipt, directly or indirectly, of any
inquiries, requests, discussions, negotiations or proposals relating to a
Company Takeover Proposal, or any request for nonpublic information relating to
any of the Company Entities by any person that informs Stockholder or its
Representatives that such person is considering making, or has made, a Company
Takeover Proposal, or an inquiry from a person seeking to have discussions or
negotiations relating to a possible Company Takeover Proposal. Such notice shall
be made orally and confirmed in writing, and shall indicate the specific terms
and conditions thereof and the identity of the other party or parties involved
and promptly furnish to Parent a copy of any such written inquiry, request or
proposal and copies of any information provided to or by any third party
relating thereto. Stockholder agrees that it shall keep Parent fully informed of
the status and details (including amendments and proposed amendments) of any
such request or information requested of Stockholder, including by providing a
copy of all material documentation or correspondence relating thereto.
5. Standstill. Subject to the limitations and covenants on Schedule B
hereto, Stockholder agrees that from the date hereof until the Termination Date
(the "Standstill Period"), except with Parent's prior written consent, neither
the Stockholder, nor any of its respective representatives or affiliates, will
(a) acquire, or offer, propose or agree to acquire, by purchase or otherwise,
any securities of Parent entitled to be voted generally in the election of
directors of Parent or any direct or indirect options or other rights to acquire
any such securities ("Voting Securities) or (b) participate in or encourage the
formation of any partnership, syndicate or other group which owns or seeks or
offers to acquire beneficial ownership of any such Voting Securities.
6. Miscellaneous.
6.1 Further Assurances. The parties shall execute such further
instruments and take such further actions as may reasonably be necessary to
carry out the intent of this Agreement. Each party hereto shall cooperate with
the other party hereto, to the extent reasonably requested by such party, to
enforce rights and obligations herein provided.
6.2 Limitation. Subject to the limitations and covenants on Schedule
B hereto, Stockholder will retain at all times the right to vote Stockholder's
Shares, in Stockholder's sole discretion, on all matters, other than those set
forth in Section 4.1, which are at any time or from time to time presented to
the Company's stockholders generally.
6.3 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 will nevertheless
remain in full force and effect. 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 to the fullest extent
permitted by applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
6.4 Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties.
6.5 Extension; Waiver. Either Parent, on the one hand, or
Stockholder, on the other hand, may (a) extend the time for the performance of
any of the obligations or other acts of the other party, (b) waive any
inaccuracies in the representations and warranties of the other party contained
in this Agreement, or (c) waive compliance by the other party with any of the
agreements contained in this Agreement. Any agreement on the part of a party to
any such extension or waiver will be valid only if set forth in an instrument in
writing signed on behalf of such party. The failure of any party to this
Agreement to assert any of its rights under this Agreement or otherwise will not
constitute a waiver of such rights.
6.6 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 of this Agreement and is not intended to confer upon any person
other than the parties any rights or remedies.
6.7 Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement may be assigned, in whole or in
part, by operation of law or otherwise by any of the parties hereto without the
prior written consent of each other party. Any assignment in violation of this
Section 6.7 will be void and of no effect. Subject to the preceding two
sentences, this Agreement is binding upon, inures to the benefit of, and is
enforceable by, the parties and their respective successors and assigns.
6.8 Governing Law. This Agreement is to be governed by, and
construed in accordance with, the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflict of
laws thereof.
6.9 Jurisdiction. Each of the parties hereto (a) consents to submit
itself to the personal jurisdiction of the state and federal courts of the State
of Delaware in the event any dispute arises out of this Agreement or any of the
transactions contemplated by this Agreement, (b) agrees that it will not attempt
to deny or defeat such personal jurisdiction by motion or other request for
leave from any such court and (c) agrees that it will not bring any action
relating to this Agreement or any of the transactions contemplated by this
Agreement in any other court.
6.10 Notices. All notices, requests, claims, demands and other
communications under this Agreement must be in writing and will be deemed given
if delivered personally, telecopied (which is confirmed) or sent by a nationally
recognized overnight courier service (providing proof of delivery) to the
parties at the following addresses (or at such other address for a party as is
specified by like notice):
If to Parent:
CTS Corporation
905 West Boulevard North
Elkhart, Indiana 46514
Telecopy No.: (574) 294-6151
Attention: General Counsel
With a copy (which shall not constitute notice) to:
Jones Day
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114
Attention: Lyle G. Ganske
Telecopy No.: (216) 579-0212
If to Stockholder:
At the address (or Telecopy Number) set forth on the signature pages
hereto
With a copy (which shall not constitute notice) to:
TMW Enterprises, Inc.
2120 Austin Avenue
Rochester Hills, MI 48309
Attention: Robert T. Howard
Telecopy No.: (248) 844-0172
6.11 Specific Enforcement. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached.
The parties accordingly agree that the parties will be entitled to an injunction
or injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any federal court located in the
State of Delaware or a Delaware state court, this being in addition to any other
remedy to which they are entitled at law or in equity.
6.12 Counterparts. This Agreement may be executed in one or more
counterparts, all of which will be considered one and the same agreement and
will become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties.
6.13 Interpretation. When a reference is made in this Agreement to
an Article, Section or Exhibit, such reference is to an Article or Section of,
or an Exhibit to, this Agreement unless otherwise indicated. The headings
contained in this Agreement are for reference purposes only and do not affect in
any way the meaning or interpretation of this Agreement. In the event an
ambiguity or question of intent or interpretation, this Agreement shall be
construed as if drafted jointly by the parties and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any provisions of this Agreement. No provision of this Agreement will be
interpreted in favor of, or against any of the parties hereto by reason of the
extent to which any such party or its counsel participated in the drafting
thereof or by reason of the extent to which any such provision is inconsistent
with any prior draft hereof or thereof.
6.14 Fees and Expenses. All fees and expenses incurred in connection
with this Agreement shall be paid by the party incurring such fees and expenses.
6.15 Nonsurvival of Representations and Warranties. None of the
representations, warranties, covenants and agreement in this Agreement will
survive the Termination Date; except (a) the covenants and agreements contained
in Section 4.4, Article 5 and Article 6 each of which will survive for the
period set forth in Article 5 and (b) 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.
[Intentionally Left Blank]
IN WITNESS WHEREOF, the undersigned parties have executed this Agreement
as of the date first above written.
CTS CORPORATION
By: /s/ Donald K. Schwanz
-------------------------------
Name: Donald K. Schwanz
Title: President and
Chief Executive Officer
STOCKHOLDER
By: /s/ Thomas M. Wheeler
------------------------------
Name: Thomas M. Wheeler
Title: Trustee, Thomas M. Wheeler
Trust U/T/D 4/9/86
SCHEDULE A
NAME NUMBER OF SHARES
- ---- ----------------
Thomas M. Wheeler, as Trustee of 881,812
Thomas M. Wheeler Trust U/T/D 4/9/86
SCHEDULE B
Stockholder is the legal owner of the Shares. However, Stockholder has
granted to third parties one or more options to purchase, an aggregate of 97,000
of Stockholder's Shares ("collectively, the "Options"). As of the date of this
Agreement, none of the Options have been exercised.
The Options obligate Stockholder to deliver unencumbered shares of Company
Common Stock to the Option holders upon their exercise of the Options. As a
result, each of the Option holders may be a beneficial owner of that portion of
Stockholder's Shares which are the subject of their applicable Option.
With respect to Shares covered by the Options, the parties hereto agree
that Stockholder may transfer and deliver any Shares subject to an Option upon
an Option holder's exercise of such Option, whether before or after the record
date for a stockholder's meeting (including any meeting for the same purpose
after an adjournment thereof) for the purpose of voting on any subject covered
by Section 4.1 of this Agreement (a "Stockholder's Meeting"); provided, however,
that to the extent that Stockholder remains the holder of record for any such
Shares at such Stockholders' Meeting, Stockholder shall vote such Shares in
accordance with the provisions of Section 4.1 of this Agreement.
Exhibit 1
IRREVOCABLE PROXY
The undersigned stockholder (the "Stockholder") of SMTEK
International, Inc., a Delaware corporation (the "Company") hereby irrevocably
(to the fullest extent permitted by applicable law) appoints and constitutes
those officers of CTS Corporation, an Indiana corporation ("Parent") designated
by Parent 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 the Company
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 Stockholder's Agreement (as defined
below), provided, however, that such proxy shall not apply to any shares of
capital stock of the Company transferred to third parties as contemplated by
Schedule B to the Stockholder's Agreement for which the Stockholder is no longer
the holder of record; (ii) any and all other shares of capital stock of the
Company 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 the Company, or any change in the
Company's capital stock by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like, all shares of the
Company's capital stock issued or distributed pursuant to such stock dividends
and distributions and any shares of the Company'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 the Company referred
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 Termination Date (as
defined in the Stockholder's Agreement dated as of the date hereof, between
Parent and the undersigned (the "Stockholder's Agreement")) at any meeting
(whether annual or special and whether or not an adjourned or postponed meeting)
of the stockholders of the Company, however called, and in any action taken by
the written consent of the stockholders of the Company without a meeting with
respect to the following matters and only the following matters:
(i) in favor of the adoption and approval of the Agreement and Plan
of Merger Agreement, dated November 16, 2004, by and among Parent,
the Company and Cardinal Acquisition, Inc. (the "Merger Agreement")
and the Merger (as defined in the Merger Agreement) and the other
transactions contemplated by the Merger Agreement, and, to the
extent that a vote is solicited in connection with the Stockholder's
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
the Company in the Merger Agreement or that would delay or hinder
the consummation of the Merger or that would preclude fulfillment of
a condition precedent to the Closing under the Merger Agreement,
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 Merger, including, without
limitation, any Company Takeover Proposal (as defined in the Merger
Agreement) or Superior Proposal (as defined in the Merger
Agreement).
The Proxyholders may not exercise this proxy on any other matter.
The Stockholder may vote the Shares on all such other matters. The proxy granted
by the Stockholder to the Proxyholders hereby is granted as of the date of this
Irrevocable Proxy in order to secure the obligations of the Stockholder set
forth in Section 4.1 of the Stockholder's Agreement.
This proxy will terminate upon the termination of the Stockholder's
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 Stockholder authorizes the Proxyholders to file this proxy and
any substitution or revocation of substitution with the Secretary of the Company
and with any Inspector of Elections at any meeting of the stockholders of the
Company.
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: November 16, 2004
STOCKHOLDER
By: /s/ Thomas M. Wheeler
--------------------------------
Thomas M. Wheeler
Trustee, Thomas M. Wheeler
Trust U/T/D 4/9/86