Exhibit C
SHAREHOLDER VOTING AGREEMENT
AGREEMENT, made and entered into as of the 1st day of May, 1996, by
and between each of the record owners of shares of common stock of Sunrise
Resources, Inc., a Minnesota corporation (the "Company"), identified on the
signature page(s) to this agreement (the "Shareholders") for the mutual benefit
of such Shareholders.
WHEREAS, the Shareholders received shares of the common stock of the
Company in exchange for the transfer of certain assets to the Company in
connection with the merger of the X.X. Xxxx Companies, Inc., a Minnesota
corporation d/b/a/ International Leasing Corporation ("ILC"), with and into the
Company (the "Merger") pursuant to the Agreement and Plan of Reorganization by
and among the Company, ILC, and the Shareholders dated October 14, 1994 (the
"Merger Agreement"); and
WHEREAS, the Shareholders believe that certain misrepresentations were
made in connection with the Merger and desire to prosecute claims for additional
compensation against the Company, its independent auditors and others in order
to obtain adequate compensation for the value of the assets transferred to the
Company pursuant to the Merger (the "Claims"); and
WHEREAS, the Shareholders own in the aggregate approximately thirty-
nine and six-tenths percent (39.6%) of the outstanding shares of the common
stock of the Company; and
WHEREAS, the Shareholders deem it to be in their mutual best interest
to act together in matters concerning prosecution of the Claims through
concentrating their power and rights with respect to their Shares in the manner
hereinafter set forth; and
WHEREAS, the Shareholders desire to appoint Xxxxx X. Xxxx, an
individual resident of the state of Minnesota ("Xx. Xxxx"), as their agent with
full powers of attorney in connection with any negotiation, settlement or
litigation of the Claims.
NOW THEREFORE, in consideration of the premises, the respective
commitments and undertakings of the Shareholders set forth in this agreement,
and other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the Shareholders agree as follows:
1. Voting Agreement. Each Shareholder hereby agrees, on behalf of
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such Shareholder and any person to whom such Shareholder transfers any shares of
the Company's stock owned by such Shareholder, to vote all shares of Company
stock now or hereafter owned by such Shareholder and take such other actions as
are reasonably necessary to ensure that the Claims are resolved consistent with
the
judgment and direction of Xx. Xxxx, and to that end to vote or take such other
actions as Xx. Xxxx may from time to time direct with respect to the
negotiation, settlement, litigation or other resolution of the Claims.
2. Appointment of Agent. Each Shareholder, on behalf of such
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Shareholder and any person to whom such Shareholder transfers any shares of the
Company's stock owned by such Shareholder, hereby appoints as his agent and
grants power of attorney to Xx. Xxxx with respect to all rights and powers of
such Shareholder arising in connection with the Claims. Such power of attorney
and agency shall include:
(i) entering into and/or terminating settlement discussions with such
parties as Xx. Xxxx may xxxx appropriate;
(ii) prosecuting a resolution of the Claims through mediation, arbitration,
litigation or such other means as Xx. Xxxx may deem appropriate;
(iii) preparing or seeking assistance in preparing such documents and
materials as Xx. Xxxx may xxxx appropriate in support of any settlement
discussions or other attempted resolution of the Claims;
(iv) making the sole decision as to the fairness, form and content of any
settlement or other resolution of the Claims;
(v) binding the Shareholders to the terms of any agreement to settle or
other resolution of the Claims;
(vi) distributing the proceeds of any settlement or other resolution of the
Claims, regardless of form, to the Shareholders in proportion to their
respective interests in the stock of the Company acquired pursuant to the
Merger.
3. Limitation. Each Shareholder shall retain at all times the right
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to vote such person's shares of the Company's stock, in that Shareholder's sole
discretion, on all matters except those upon which Xx. Xxxx has been granted
sole discretion under this Agreement to direct the voting of such shares.
4. Conditional Irrevocable Proxies. To secure each Shareholder's
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obligation to vote that Shareholder's shares of Company stock in accordance with
the provisions of this agreement, each Shareholder hereby appoints Xx. Xxxx as
his true and lawful proxy, with full power of substitution, to vote all of that
Shareholder's shares of Company stock, in such proxy's sole discretion, for all
matters described in section 1 (if and only if) such Shareholder fails to comply
with the provisions of section 1. The proxies and powers granted by each
Shareholder pursuant to this section 4 are coupled with an interest and are
given to secure the
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performance of such Shareholder's duties under this agreement. Such proxies
will be irrevocable for the term of this agreement and will survive the death,
incompetency and disability of any Shareholder or other holder of such
Shareholder's shares of Company stock and the merger and dissolution of any
Shareholder that is a trust, corporation or other entity.
5. Transfer of Shares. No shares of Company stock owned by any
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Shareholder shall be transferred unless and until the transferee executes an
instrument acknowledging and agreeing that the shares being acquired are subject
to the restrictions and/or irrevocable proxies set forth in this agreement.
6. Legend. Each certificate evidencing shares of Company stock
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owned by any Shareholder and subject to the provisions of sections 1, 2 and 4 of
this agreement and each certificate issued in exchange for or upon the transfer
of any such shares during the term of this agreement will be stamped or
otherwise imprinted with a legend (the "Legend") in substantially the following
form or to the following effect:
"The securities represented by this certificate are subject to a
Shareholder Voting Agreement dated as of May 1, 1996, by and among the
original holder of such securities and other shareholders of the issuer of
such securities and to a conditional irrevocable proxy granted pursuant to
such agreement. A copy of such agreement will be furnished without charge
by Xx. Xxxxx X. Xxxx, an individual resident of the state of Minnesota,
upon such holder's written request."
7. Term. This agreement shall terminate and cease to be effective,
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and the Legend will be removed from all certificates at the earliest of
(a) May 1, 1998;
(b) the final resolution of all of the Claims, as determined by Xx.
Xxxx, in his sole discretion;
(c) the death of Xx. Xxxx; or
(d) the determination that Xx. Xxxx is incompetent or incapacitated
made by the unanimous consent of the Shareholders, other than Xx. Xxxx,
after consultation with a licensed physician who has examined Xx. Xxxx.
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8. Miscellaneous Provisions
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(a) Binding Effect. This agreement shall constitute a valid and
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binding agreement among the Shareholders, any subsequent holders of shares
of Company stock now or hereafter owned by the Shareholders and their
respective successors and assigns.
(b) Remedies. The Shareholders shall be entitled to specific
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enforcement of their rights under this agreement, to recover damages by
reason of any breach of any provision hereof and to exercise all other
rights existing in their favor. The Shareholders agree and acknowledge
that money damages may not be an adequate remedy for any breach of the
provisions of this agreement and that any Shareholder may, in his sole
discretion, apply to any court of law or equity of competent jurisdiction
for specific performance and/or injunctive relief in order to enforce or
prevent any violations of the provisions of this agreement.
(c) Severability. Whenever possible, each provision of this agreement
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will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this agreement is held to be
prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this agreement.
(d) Entire Agreement. This agreement embodies the complete agreement
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and understanding among the parties hereto with respect to the subject
matter hereof and supersedes and preempts any prior understandings,
agreements or representations, by or among the parties, written or oral,
which may have related to the subject matter hereof in any way.
(e) Counterparts. This agreement may be executed on separate
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counterparts, each of which will be an original and all of which taken
together will constitute one and the same agreement.
(f) Governing Law. All questions concerning this agreement will be
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governed by and interpreted in accordance with the internal law, not the
law of conflicts, of the state of Minnesota.
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IN WITNESS WHEREOF, the parties hereto have executed this agreement as
of the date set forth in the first paragraph.
/s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
XXXXXXX X. XXXX STOCK TRUST:
/s/Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx, Trustee
/s/Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, Trustee
XXXXXXX X. XXXX STOCK TRUST:
/s/Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx, Trustee
/s/Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, Trustee
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