Exhibit(d)(3)
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STOCK VOTING AND TENDER AGREEMENT
BY AND AMONG
KBII HOLDINGS, INC.
KBII ACQUISITION COMPANY, INC.
AND
THE INDIVIDUALS NAMED HEREIN
Dated as of August 10, 2000
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TABLE OF CONTENTS
Page
1. Definitions............................................................. 1
2. Tender of Securities.................................................... 1
3. Provisions Concerning the Securities.................................... 1
(a) Agreement to Vote the Securities.................................. 1
(b) Grant of Proxy.................................................... 2
(c) Other Proxies Revoked............................................. 2
4. Representations and Warranties of Each Shareholder...................... 2
(a) Power, etc........................................................ 2
(b) Ownership of Securities........................................... 3
(c) No Conflicts...................................................... 3
(d) No Finder's Fees.................................................. 3
(e) No Encumbrances................................................... 3
(f) Reliance by Acquiror.............................................. 3
5. Additional Covenants of Each Shareholder................................ 4
(a) No Solicitation................................................... 4
(b) Restriction on Transfer, Proxies and Non-Interference............. 4
(c) Waiver of Appraisal Rights........................................ 4
(d) Stop Transfer; Changes in Subject Shares.......................... 4
(e) Cooperation....................................................... 5
(f) Releases.......................................................... 5
6. Fiduciary Duties........................................................ 5
7. Miscellaneous........................................................... 5
(a) Further Assurances................................................ 5
(b) Notices........................................................... 5
(c) Interpretation.................................................... 6
(d) Counterparts...................................................... 6
(e) Entire Agreement; No Third-Party Beneficiaries.................... 6
(f) Governing Law..................................................... 6
(g) Assignment........................................................ 6
(h) Severability...................................................... 7
(i) Enforcement of this Agreement..................................... 7
8. Termination............................................................. 7
9. Publication............................................................. 7
STOCK VOTING AND TENDER AGREEMENT
STOCK VOTING AND TENDER AGREEMENT (this "Agreement") dated as of August 10,
2000, among KBII Holdings, Inc., a Delaware corporation ("Parent"), KBII
Acquisition Company, Inc., a Colorado corporation ("Acquiror") and the
individuals listed on Schedule I hereto (individually, a "Shareholder," and
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collectively, the "Shareholders").
W I T N E S S E T H :
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WHEREAS, simultaneously with entering into this Agreement, Parent, Acquiror
and BI Incorporated, a Colorado corporation (the "Company"), are entering into
an Agreement and Plan of Merger (such agreement, the "Merger Agreement"),
pursuant to which Acquiror will be merged with and into the Company (the
"Merger");
WHEREAS, as of the date hereof, each Shareholder is the record and
beneficial owner of the number of Shares set forth opposite such Shareholder's
name on Schedule I hereto; and
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WHEREAS, each Shareholder has agreed that such Shareholder shall vote and
tender the Shares beneficially owned by such Shareholder as of the date hereof
and any Shares hereafter acquired (all such Shares owned as of the date hereof
and hereinafter acquired, the "Securities") with respect to certain questions
that may be put to the Shareholders, in each case, in accordance with the terms
and conditions of this Agreement;
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Acquiror has required that each Shareholder enter into this
Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual premises,
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Definitions. For purposes of this Agreement capitalized terms used and
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not defined herein have the respective meanings ascribed to them in the Merger
Agreement.
2. Tender of Securities. Each Shareholder hereby agrees severally and not
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jointly to tender for acceptance by Acquiror pursuant to the Offer any
Securities owned by such Shareholder as of the date hereof and any Securities
hereafter acquired.
3. Provisions Concerning the Securities.
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(a) Agreement to Vote the Securities. Each Shareholder, in its
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capacity as such, hereby agrees severally and not jointly that during the period
commencing on the date hereof and continuing until the earlier of the Effective
Time or the termination of this Agreement (such period, the "Voting Period") at
any meeting of the holders of any class or classes of the capital stock of the
Company, however called, or in connection with any written consent of the
holders of any class or classes of the capital stock of the Company, such
Shareholder shall vote (or cause to be voted) the Securities (i) in favor of the
Merger and the approval of the terms of
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the Merger Agreement and each of the other transactions contemplated by the
Merger Agreement and this Agreement and any actions required in furtherance
thereof, (ii) against any action, transaction or agreement that would result in
a breach in any respect of any covenant, representation or warranty or any other
obligation or agreement of the Company under the Merger Agreement or of such
Shareholder under this Agreement, and (iii) except as otherwise agreed to in
writing in advance by Acquiror, against the following actions (other than the
Merger and the transactions contemplated by the Merger Agreement): (A) any
extraordinary corporate transaction, such as a merger, consolidation or other
business combination involving the Company; (B) a sale, lease or transfer of a
significant part of the assets of the Company, or a reorganization,
recapitalization, dissolution or liquidation of the Company; (C) (1) any change
in the Persons who constitute the board of directors of the Company; (2) any
change in the present capitalization of the Company or any amendment of the
Company's Articles of Incorporation or By-laws; (3) any other material change in
the Company's corporate structure or business; or (4) any other action involving
the Company which is intended, or could reasonably be expected, to impede,
interfere with, delay, postpone, or materially adversely affect the Merger and
the transactions contemplated by this Agreement or the Merger Agreement. Each
Shareholder hereby agrees that such Shareholder shall not enter into any
agreement or understanding with any Person the effect of which would be to
violate the provisions and agreements contained in this Agreement.
(b) Grant of Proxy. Each Shareholder severally and not jointly hereby
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appoints Parent, Acquiror and any designee of Parent or Acquiror, each of them
individually, such Shareholder's proxy and attorney-in-fact, with full power of
substitution and resubstitution, to vote or act by written consent during the
Voting Period with respect to the Securities in accordance with paragraph (a) of
this Section. This proxy is given to secure the performance of the duties of
each Shareholder under this Agreement. Each Shareholder severally and not
jointly affirms that this proxy is coupled with an interest and shall be
irrevocable. Each Shareholder severally and not jointly shall take such further
action or execute such other instruments as may be necessary to effectuate the
intent of this proxy.
(c) Other Proxies Revoked. Each Shareholder severally and not jointly
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represents and warrants that any proxies heretofore given in respect of such
Shareholder's Securities are not irrevocable, and that all such proxies have
been or are hereby revoked.
4. Representations and Warranties of Each Shareholder. Each Shareholder,
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severally and not jointly, hereby represents and warrants to Acquiror as
follows:
(a) Power, etc. Such Shareholder has all necessary power and
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authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by such Shareholder and, assuming its due authorization,
execution and delivery by each other party hereto, constitutes a legal, valid
and binding obligation of such Shareholder, enforceable against such Shareholder
in accordance with its terms except as such enforceability may be affected by
bankruptcy or general equitable principles.
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(b) Ownership of Securities. Such Shareholder is the record and
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beneficial owner of the Securities listed beside such Shareholder's name on
Schedule I attached hereto. The Securities listed on Schedule I constitute all
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of the shares of capital stock of the Company owned of record or beneficially by
such Shareholder as of the date hereof. All of such Securities are issued and
are outstanding and except as set forth on Schedule II attached hereto, such
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Shareholder does not own, of record or beneficially, any warrants, options or
other rights to acquire any shares of capital stock of the Company. Such
Shareholder has sole voting power and sole power to issue instructions with
respect to the matters set forth in Section 2 and Section 3 hereof, sole power
of disposition, sole power of conversion, sole power to demand appraisal rights
and sole power to agree to all of the matters set forth in this Agreement, in
each case with respect to all of such Securities, with no limitations,
qualifications or restrictions on such rights, subject only to applicable laws,
the Company's Articles of Incorporation and the terms of this Agreement.
(c) No Conflicts. (i) No filing with, and no permit, authorization,
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consent or approval of, any state or federal public body or authority is
necessary for the execution of this Agreement by such Shareholder and the
consummation by such Shareholder of the transactions contemplated hereby and
(ii) none of the execution and delivery of this Agreement by such Shareholder,
the consummation by such Shareholder of the transactions contemplated hereby or
compliance by such Shareholder with any of the provisions hereof shall (A)
conflict with or result in any breach of or constitute (with or without notice
or lapse of time or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration) under any of
the terms, conditions or provisions of any note, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding, agreement or other
instrument or obligation of any kind to which such Shareholder is a party or by
which such Shareholder or any of such Shareholder's properties or assets may be
bound, or (B) violate any order, writ, injunction, decree, judgment, order,
statute, rule or regulation applicable to such Shareholder or any of such
Shareholder's properties or assets.
(d) No Finder's Fees. Except as disclosed pursuant to the Merger
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Agreement, no broker, investment banker, financial advisor or other person is
entitled to any broker's, finder's, financial advisor's or other similar fee or
commission in connection with the transactions contemplated hereby based upon
arrangements made by or on behalf of such Shareholder.
(e) No Encumbrances. The Securities listed beside such Shareholder's
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name on Schedule I attached hereto and the certificates representing such
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Securities are now, and at all times during the term hereof will be, held by
such Shareholder, or by a nominee or custodian for the benefit of such
Shareholder, free and clear of all liens, claims, security interests, proxies,
voting trusts or agreements, understandings or arrangements or any other
encumbrances whatsoever, except for any such encumbrances or proxies arising
hereunder.
(f) Reliance by Acquiror. Such Shareholder understands and
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acknowledges that Parent and Acquiror are entering into the Merger Agreement in
reliance upon such Shareholder's execution and delivery of this Agreement.
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5. Additional Covenants of Each Shareholder. Such Shareholder severally
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and not jointly covenants and agrees as follows:
(a) No Solicitation. Such Shareholder shall not, in its capacity as
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such, directly or indirectly (i) solicit, facilitate, initiate or encourage any
inquiries or the making of any proposal with respect to a Target Takeover
Proposal, (ii) enter into an agreement, arrangement or understanding with
respect to any Target Takeover Proposal or enter into any agreement, arrangement
or understanding requiring such Shareholder to abandon, terminate or fail to
consummate this Agreement or any other transaction contemplated hereby or (iii)
negotiate, explore or otherwise engage in discussions, or furnish to any Person
(other than Parent or Acquiror) any information with respect to any inquiries or
the making of any proposal that constitutes, or may reasonably be expected to
lead to, any Target Takeover Proposal. Such Shareholder shall not, in its
capacity as such, (i) withdraw or modify or propose to withdraw or modify, in a
manner adverse to Parent or Acquiror, the approval or recommendation by such
Shareholder of the Offer, the Merger, the Merger Agreement or this Agreement or
(ii) endorse or recommend, or propose to endorse or recommend, any Target
Takeover Proposal. If such Shareholder receives any inquiry or proposal
regarding any Target Takeover Proposal, such Shareholder shall promptly inform
Acquiror of that inquiry or proposal and the details thereof.
(b) Restriction on Transfer, Proxies and Non-Interference. Such
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Shareholder shall not (i) except as contemplated in this Agreement and the
Merger Agreement, directly or indirectly, offer for sale, sell, transfer,
tender, pledge, encumber, assign or otherwise dispose of, or enter into any
contract, option or other arrangement or understanding with respect to or
consent to the offer for sale, transfer, tender, pledge, encumbrance, assignment
or other disposition of, any or all of the Securities or any Included Option or
Excluded Option or any interest therein; (ii) except as contemplated by this
Agreement, grant any proxies or powers of attorney, deposit any of the
Securities into a voting trust or enter into a voting agreement with respect to
any of the Securities or any Included Option or Excluded Option; (iii) exercise
any Included Option or Excluded Option; or (iv) take any 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 such Shareholder's obligations under this Agreement.
(c) Waiver of Appraisal Rights. Such Shareholder hereby irrevocably
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waives any rights of appraisal or rights to dissent from the Merger that such
Shareholder may have.
(d) Stop Transfer; Changes in Subject Shares. Such Shareholder agrees
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with, and covenants to, Acquiror that such Shareholder shall not request that
the Company register the transfer (book-entry or otherwise) of any certificate
or uncertificated interest representing any of the Securities or any Included
Option or Excluded Option, unless such transfer is made in compliance with this
Agreement or the Merger Agreement. In the event of a stock dividend or
distribution, or any change in any class of capital stock of the Company by
reason of any stock dividend, split-up, recapitalization, combination, exchange
of shares or the like, the term "Securities" shall be deemed to refer to and
include the Securities as well as all such stock
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dividends and distributions and any shares into which or for which any or all of
the Securities may be changed or exchanged.
(e) Cooperation. Such Shareholder, in the capacity as a shareholder,
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shall cooperate fully with Parent, Acquiror and the Company in connection with
their respective efforts to fulfill the conditions to the Merger set forth in
Article VI of the Merger Agreement and the conditions to the Offer set forth in
Annex I to the Merger Agreement.
(f) Releases. Such Shareholder hereby fully, unconditionally and
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irrevocably releases, effective as of the Effective Time, any and all claims and
causes of action that such Shareholder has or may have against the Company or
any present or former director, officer, employee or agent of the Company
arising or resulting from or relating to any act, omission, event or occurrence
prior to the date hereof and have arisen or resulted as of the Effective Time.
The foregoing release does not include a release by any Shareholder of such
Shareholder's rights to indemnification and advancement of expenses under the
Company's articles of incorporation or bylaws, by agreement, by law, or pursuant
to insurance policies. If requested by Parent, such Shareholder shall execute
an additional release at the Effective Time releasing such claims as may arise
between the date hereof and the Effective Time.
6. Fiduciary Duties. Notwithstanding anything in this Agreement to the
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contrary, the covenants and agreements set forth herein shall not prevent any
Shareholder serving on the Company's Board of Directors from taking any action,
subject to the applicable provisions of the Merger Agreement, while acting in
the capacity of a director of the Company.
7. Miscellaneous.
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(a) Further Assurances. From time to time, at Acquiror's request and
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without further consideration, each Shareholder shall execute and deliver such
additional documents and take all such further lawful action as may be necessary
or desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
(b) Notices. All notices and other communications hereunder shall be
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in writing and shall be deemed given if delivered personally, mailed, certified
or registered mail with postage prepaid, sent by overnight courier or telecopied
to the parties at the following addresses (or at such other address for a party
as shall be specified by like notice):
(i) if to Parent or Acquiror, to
KBII Holdings, Inc.
c/o Kohlberg & Co.
000 Xxxxx Xxxxxx
Xxxxx Xxxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxxxx Xxxxxxxx
Facsimile No.: (000) 000-0000
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with copies to:
Hunton & Xxxxxxxx
Bank of America Plaza
000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Facsimile No.: (000) 000-0000
(ii) if to the Shareholders, to the address set forth beside each
Shareholder's name listed on Schedule I hereto
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with a copy to:
Ireland, Xxxxxxxxx, Xxxxx & Xxxxxx, P.C.
0000 Xxxxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
(c) Interpretation. When a reference is made in this Agreement to a
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Section, such reference shall be to a Section of this Agreement unless otherwise
indicated. The table of contents and headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the words "include," "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation."
(d) Counterparts. This Agreement may be executed in counterparts, all
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of which shall be considered one and the same agreement and shall become
effective when one or more counterparts have been signed by each of the parties
and delivered to the other parties.
(e) Entire Agreement; No Third-Party Beneficiaries. This Agreement,
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including the documents and instruments referred to herein (i) constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof
and (ii) is not intended to confer upon any person or entity other than the
parties any rights or remedies hereunder.
(f) Governing Law. This Agreement shall be governed by, and construed
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in accordance with, the laws of the State of Colorado, without regard to the
conflict of laws rules thereof.
(g) Assignment. Neither this Agreement nor any of the rights,
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interests or obligations hereunder shall be assigned by any of the parties
without the prior written consent of the other parties, except that Parent and
Acquiror may assign, in their sole discretion, any of or all their rights,
interests and obligations under this Agreement, except their indemnification
obligations set forth in Section 5(f), to any direct or indirect wholly owned
subsidiary of Parent.
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Subject to the preceding sentences, this Agreement shall be binding upon, inure
to the benefit of, and be enforceable by, the parties and their respective
successors and assigns.
(h) Severability. If any term or other provision of this Agreement is
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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 are 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 shall negotiate
in good faith to modify this Agreement so as to effect the original intent of
the parties as closely as possible in a mutually acceptable manner in order that
the transactions be consummated as originally contemplated to the fullest extent
possible.
(i) Enforcement of this Agreement. The parties agree that irreparable
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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. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof, this being in addition to any
other remedy to which they are entitled at law or in equity.
8. Termination. This Agreement shall terminate, and neither Acquiror nor
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any Shareholder shall have any rights or obligations hereunder and this
Agreement shall become null and void and have no effect upon the termination of
the Merger Agreement in accordance with its terms without the merger having
occurred, except nothing in this Section 7 shall relieve any party of liability
for breach of this Agreement.
9. Publication. Each Shareholder hereby agrees severally not jointly to
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permit Parent and Acquiror to publish and disclose in the Offer Documents and,
if approval of the shareholders of the Company is required under applicable law,
the Proxy Statement (including all documents and schedules filed with the SEC)
its identity and intent with respect to the Securities and the nature of its
commitments under this Agreement.
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IN WITNESS WHEREOF, Parent, Acquiror and each Shareholder have caused this
Agreement to be duly executed as of the day and year first above written.
KBII HOLDINGS, INC.
By: /s/ Xxxxxxxxxxx Xxxxxxxx
__________________________
Name: Xxxxxxxxxxx Xxxxxxxx
________________________
Title: Secretary
_______________________
KBII ACQUISITION COMPANY, INC.
By: /s/ Xxxxxxxxxxx Xxxxxxxx
__________________________
Name: Xxxxxxxxxxx Xxxxxxxx
________________________
Title: Secretary
_______________________
SHAREHOLDERS
/s/ Xxxx Xxxxxx
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XXXX XXXXXX
/s/ Xxxxxxxx X. Xxxxxxx
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XXXXXXXX X. XXXXXXX
/s/ Xxxxxx Xxxxxxxxxx
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XXXXXX XXXXXXXXXX
/s/ Xxxxx Xxxxxxxxxx
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XXXXX XXXXXXXXXX
/s/ Xxx Xxxxxxxxx
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XXX XXXXXXXXX
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SCHEDULE I
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Amount of Shares
Name of Shareholder Beneficially Owned Notice Address
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Xxxx Xxxxxx 138,373 c/o BI Incorporated
Xxxxxxxx Xxxxxxx 57,563 c/o BI Incorporated
Xxxxxx Xxxxxxxxxx 30,873 c/o BI Incorporated
Xxxxx Xxxxxxxxxx 20,276 c/o BI Incorporated
Xxx Xxxxxxxxx 8,672 c/o BI Incorporated
SCHEDULE II
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Amount of Options, Warrants or Other
Name of Shareholder Rights to Acquire Shares
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Xxxx Xxxxxx 195,000
Xxxxxxxx Xxxxxxx 132,500
Xxxxxx Xxxxxxxxxx 92,500
Xxxxx Xxxxxxxxxx 58,475
Xxx Xxxxxxxxx 84,118
