Exhibit 99.1
FORM OF VOTING AGREEMENT
This Voting Agreement (the "Agreement") is made and entered into as of
October __, 2002, by and between __________________, a Delaware corporation
("Parent"), and the undersigned stockholder (the "Stockholder") of
_________________, a Delaware corporation (the "Company").
RECITALS
A. Concurrently with the execution of this Agreement, Parent, the
Company and Monmouth Acquisition Corp, a Delaware corporation and a direct or
indirect subsidiary of Parent ("MergerCo"), have entered into an Agreement and
Plan of Merger (the "Merger Agreement") which provides for the merger (the
"Merger") of MergerCo with and into the Company. Pursuant to the Merger, shares
of common stock of the Company will be converted into common stock of Parent and
cash on the basis described in the Merger Agreement.
B. The Stockholder is the record holder and beneficial owner (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) of such number of shares of the outstanding common stock,
stated value $.001 per share, of the Company as is indicated on the final page
of this Agreement (the "Shares").
C. Parent desires, as a condition to entering into the Merger
Agreement, the Stockholder to agree, and the Stockholder is willing to agree,
not to transfer or otherwise dispose of any of the Shares, or any other shares
of capital stock of the Company acquired hereunder and prior to the Expiration
Date (as defined in Section 1.1 below, except as otherwise permitted hereby), to
vote the Shares and any other such shares of capital stock of the Company in a
manner so as to facilitate consummation of the Merger, as provided herein, and
to certain restrictions on the transfer of Exchanged Shares (as defined in
Section 1.1 below).
NOW, THEREFORE, intending to be legally bound and for good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Agreement to Retain Shares.
1.1 Transfer and Encumbrance.
(a) Other than as provided herein, until the Expiration Date,
Stockholder shall not hereafter (i) sell, tender, transfer, pledge, encumber,
assign or otherwise dispose of any of the Shares or New Shares (as defined in
Section 1.2 below), (ii) deposit any Shares or New Shares into a voting trust or
enter into a voting agreement or arrangement with respect to such Shares or New
Shares or grant any proxy or power of attorney with respect thereto, (iii) enter
into any contract, option or other arrangement or undertaking with respect to
the direct or indirect sale, transfer, pledge, encumbrance, assignment or other
disposition of any Shares or New Shares, or (iv) take any 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 Stockholder's obligations under this Agreement. As used herein, the
term
"Expiration Date" shall mean the earlier to occur of (i) the Effective Time
(as defined in the Merger Agreement); and (ii) such date and time as the Merger
Agreement shall be terminated pursuant to Article IX thereof.
(b) Other than as provided herein, from the Effective Time
until the date six months after the Effective Time (as defined in the Merger
Agreement) (the "Lock-up Period"), Stockholder shall not, directly or
indirectly, sell, tender, transfer, pledge, encumber, assign or otherwise
dispose (each, a "Disposition") any Exchanged Shares (as defined below), or
enter into any contract, option or other arrangement or undertaking with respect
to the direct or indirect Disposition of any Exchanged Shares. The foregoing
restriction is expressly agreed to preclude the Shareholder from engaging in any
hedging or other transaction during the Lock-up Period which is designed to or
reasonably expected to lead to or result in a Disposition of such Exchanged
Shares. For purposes of this Section 1.1(b), "Exchanged Shares" shall mean any
shares of common stock of Parent exchanged for Shares and New Shares in the
Merger. Notwithstanding the foregoing, each of the following Dispositions shall
be permitted:
(i) one or more Dispositions by will or the laws of
descent and distribution following the death of any Shareholder;
provided, however, that it shall be a condition to any such
Disposition that the transferee execute an agreement to be bound by
the restrictions contained in this paragraph 1.1(b); and
(ii) one or more Dispositions to any person who shall have
commenced a tender or exchange offer for shares of Parent Common Stock
if, at the time of public announcement of the tender or exchange offer
Shareholder and its affiliates collectively beneficially own less than
5% of the outstanding shares of Parent Common Stock.
1.2 Additional Purchases. Stockholder agrees that any shares
of capital stock of the Company that Stockholder purchases or with respect to
which Stockholder otherwise acquires beneficial ownership after the execution of
this Agreement and prior to the Expiration Date ("New Shares") shall be subject
to the terms and conditions of this Agreement to the same extent as if they
constituted Shares.
2. Agreement to Vote Shares. At every meeting of the stockholders of
the Company called with respect to any of the following matters, and at every
adjournment thereof, and on every action or approval by written consent of the
stockholders of the Company with respect to any of the following matters,
Stockholder shall vote the Shares and any New Shares: (i) in favor of approval
of the Merger Agreement and the Merger and any matter necessary for consummation
of the Merger; (ii) against (x) approval of any Acquisition Proposal (including,
without limitation, any Superior Proposal) (each as defined in the Merger
Agreement) (y) any proposal for any action or agreement that would result in a
breach of any covenant, representation or warranty or any other obligation or
agreement of the Company under the Merger Agreement or which could result in any
of the conditions of the Company's obligations under the Merger Agreement not
being fulfilled, and (z) any action which could reasonably be expected to
impede, interfere with, delay, postpone or materially adversely affect
consummation
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of the transactions contemplated by the Merger Agreement; and (iii) in favor of
any other matter necessary for consummation of the transactions contemplated by
the Merger Agreement which is considered at any such meeting of stockholders or
in such consent, and in connection therewith to execute any documents which are
necessary or appropriate in order to effectuate the foregoing or, at the request
of Parent, to permit Parent to vote such Shares and New Shares directly.
3. Irrevocable Proxy. By execution of this Agreement, Stockholder
does hereby appoint and constitute Parent, until the Expiration Date, with full
power of substitution and resubstitution, as Stockholder's true and lawful
attorney and irrevocable proxy, to the full extent of the undersigned's rights
with respect to the Shares and any New Shares, to vote each of such Shares and
New Shares solely with respect to the matters set forth in Section 2 hereof.
Stockholder intends this proxy to be irrevocable and coupled with an interest
hereafter until the Expiration Date and hereby revokes any proxy previously
granted by Stockholder with respect to the Shares.
4. Representations, Warranties and Covenants of Stockholder.
Stockholder hereby represents, warrants and covenants to Parent as follows:
4.1 Due Authority. Stockholder has full power, corporate or
otherwise, and authority to execute and deliver this Agreement and to perform
its obligations hereunder. This Agreement has been duly executed and delivered
by or on behalf of Stockholder and constitutes a legal, valid and binding
obligation of Stockholder, enforceable against Stockholder in accordance with
its terms. The Stockholder has not granted any proxies relating to, transferred
any interests in or otherwise granted any rights with respect to, the Shares.
4.2 No Conflict; Consents.
(a) The execution and delivery of this Agreement by
Stockholder do not, and the performance by Stockholder of the obligations under
this Agreement and the compliance by Stockholder with any provisions hereof do
not and will not, (i) conflict with or violate any law, statute, rule,
regulation, order, writ, judgment or decree applicable to Stockholder or the
Shares, (ii) conflict with or violate Stockholder's charter, bylaws, partnership
agreement or other organizational documents, if applicable, or (iii) result in
any breach of or constitute a default (or an event that with notice or lapse of
time or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or result in the
creation of a lien or encumbrance on any of the Shares pursuant to, any note,
bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which Stockholder is a party or
by which Stockholder or the Shares are bound.
(b) The execution and delivery of this Agreement by
Stockholder do not, and the performance of this Agreement by Stockholder will
not, require any consent, approval, authorization or permit of, or filing with
or notification to, any governmental or regulatory authority by Stockholder
except for applicable requirements, if any, of the Exchange Act, and except
where the failure to obtain such consents, approvals, authorizations or permits,
or to make such filings or notifications, could not prevent or delay the
performance by Stockholder of his or her obligations under this Agreement in any
material respect.
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4.3 Ownership of Shares. Stockholder (i) is the beneficial
owner of the Shares, which at the date hereof are, and at all times up until the
Expiration Date will be, free and clear of any liens, claims, options, charges,
proxies or voting restrictions or other encumbrances and (ii) does not
beneficially own any shares of capital stock of the Company other than the
Shares.
4.4 No Solicitations. Hereafter until the Expiration Date,
Stockholder shall not, nor, to the extent applicable to Stockholder, shall it
permit any of its affiliates to, nor shall it authorize any partner, officer,
director, advisor or representative of, Stockholder or any of its affiliates to,
(i) solicit, initiate or knowingly encourage the submission of, any inquiries,
proposals or offers from any person relating to an Acquisition Proposal
(including, without limitation, any Superior Proposal), (ii) enter into any
agreement with respect to an Acquisition Proposal (including, without
limitation, any Superior Proposal), (iii) solicit proxies or become a
"participant" in a "solicitation" (as such terms are defined in Regulation 14A
under the Exchange Act) with respect to an Acquisition Proposal (including,
without limitation, any Superior Proposal) or otherwise encourage or assist any
party in taking or planning any action that would compete with, restrain or
otherwise serve to interfere with or inhibit the timely consummation of the
Merger in accordance with the terms of the Merger Agreement, (iv) initiate a
stockholders' vote or action by consent of the Company's stockholders with
respect to an Acquisition Proposal (including, without limitation, any Superior
Proposal), or (v) become a member of a "group" (as such term is used in Section
13(d) of the Exchange Act) with respect to any voting securities of the Company
that takes any action in support of an Acquisition Proposal (including, without
limitation, any Superior Proposal).
5. No Limitation on Discretion as Director. Notwithstanding anything
herein to the contrary, the covenants and agreements set forth herein shall not
prevent Stockholder or its representatives or designees who are serving on the
Board of Directors of the Company from exercising its or their duties and
obligations as a Director of the Company or otherwise taking any action, subject
to the applicable provisions of the Merger Agreement, while acting in such
capacity as a director of the Company.
6. Additional Documents. Stockholder hereby covenants and agrees to
execute and deliver any additional documents necessary or desirable, in the
reasonable opinion of Parent to carry out the intent of the Agreement.
7. Consent and Waiver. Stockholder hereby gives any consents or
waivers that are reasonably required for the consummation of the Merger under
the terms of any agreements to which Stockholder is a party or pursuant to any
rights Stockholder may have.
8. Termination. Except for the provisions of Section 1.1(b), this
Agreement shall terminate and shall have no further force or effect as of the
Expiration Date. The provisions of Section 1.1(b) will become effective upon the
Effective Time and shall terminate and have no further force or effect as of the
end of the Lock-up Period.
9. Miscellaneous.
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9.1 Severability. If any term or other provision of this Agreement is
determined to be invalid, illegal or incapable of being enforced by any rule of
law or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any party. Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible 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.
9.2 Binding Effect and Assignment. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but, except as
otherwise specifically provided herein, neither this Agreement nor any of the
rights, interests or obligations of the parties hereto may be assigned by either
party without the prior written consent of the other.
9.3 Amendments and Modifications. This Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by the parties hereto.
9.4 Specific Performance; Injunctive Relief. The parties hereto agree
that irreparable damage would occur in the event any provision of this Agreement
was not performed in accordance with the terms hereof or was otherwise breached.
It is accordingly agreed that the parties shall be entitled to specific relief
hereunder, including, without limitation, an injunction or injunctions to
prevent and enjoin breaches of the provisions of this Agreement and to enforce
specifically the terms and provisions hereof, in any state or federal court in
the State of Delaware, in addition to any other remedy to which they may be
entitled at law or in equity. Any requirements for the securing or posting of
any bond with respect to any such remedy are hereby waived.
9.5 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and sufficient if delivered in
person, by cable, telegram or facsimile (with confirmation of receipt), or sent
by mail (registered or certified mail, postage prepaid, return receipt
requested) or overnight courier (prepaid) to the respective parties as follows:
If to Parent:
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with a copy to: Xxxxxxx Procter LLP
Exchange Place
Boston, MA 02109
Attention: Xxxxxx X. Cable, P.C.
If to the Stockholder: To the address for notice set forth on the
last page hereof
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with a copy to:
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or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective upon receipt.
9.6 Governing Law; Jurisdiction and Venue. This Agreement shall be
governed by, and construed in accordance with, the internal laws of the State of
Delaware without regard to its rules of conflict of laws. The parties hereto
hereby irrevocably and unconditionally consent to and submit to the exclusive
jurisdiction of the courts of the State of Delaware and of the United States of
America located in such state (the "Delaware Courts") for any litigation arising
out of or relating to this Agreement and the transactions contemplated hereby
(and agree not to commence any litigation relating thereto except in such
courts), waive any objection to the laying of venue of any such litigation in
the Delaware Courts and agree not to plead or claim in any Delaware Court that
such litigation brought therein has been brought in any inconvenient forum.
9.7 Entire Agreement. This Agreement contains the entire
understanding of the parties in respect of the subject matter hereof, and
supersedes all prior negotiations and understandings between the parties with
respect to such subject matter.
9.8 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
9.9 Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction of interpretation of this
Agreement.
9.10 No Agreement Until Executed. Irrespective of negotiations among
the parties or the exchanging of drafts of this Agreement, this Agreement shall
not constitute or be deemed to evidence a contract, agreement, arrangement or
understanding between the parties hereto unless and until (i) the Board of
Directors of the Company has approved, for purposes of Section 203 of the
Delaware General Corporation Law and any applicable provision of the Company's
Articles of Incorporation, the possible acquisition of the Shares by Parent
pursuant to this Agreement, (ii) the Merger Agreement is executed by all parties
thereto, and (iii) this Agreement is executed by all parties hereto.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the date and year first above written.
PLUG POWER INC.:
By:
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Name:
Title:
STOCKHOLDER:
By:
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Name:
Title:
Stockholder's Address for Notice:
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Shares beneficially owned:
_________ shares of Common Stock of Company
