VOTING AND SUPPORT AGREEMENT
VOTING AND SUPPORT AGREEMENT dated as of December 5, 2004 between Xxxx
Zeiss TopCo GmbH, a German company ("Parent"), Sun Acquisition, Inc., a Delaware
corporation and an indirect wholly owned subsidiary of Parent ("Merger
Subsidiary"), and those directors and executive officers of the Company listed
on Appendix A hereto (together the "D&O Stockholders").
WHEREAS, Parent, Merger Subsidiary, and Sola International Inc., a Delaware
corporation (the "Company"), propose to enter into an Agreement and Plan of
Merger dated as of the date hereof (as the same may be amended or supplemented,
the "Merger Agreement") providing for, among other things, the merger of Merger
Subsidiary with and into the Company upon the terms and subject to the
conditions set forth in the Merger Agreement;
WHEREAS, as of the date hereof, each D&O Stockholder directly owns the
number of Shares set forth on Appendix A hereto (of record or through a
brokerage firm or other nominee arrangement) (such Shares being referred to
herein as the "Original Shares"; the Original Shares, together with any other
outstanding shares of capital stock of the Company or other outstanding voting
securities of the Company acquired (of record or through a brokerage firm or
other nominee arrangement) by D&O Stockholders after the date hereof and during
the term of this Agreement (including through the exercise of any stock
options), being collectively referred to herein as the "Subject Shares"); and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Parent and Merger Subsidiary have required that the D&O Stockholders
enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the representations,
warranties, covenants and agreements set forth herein and in the Merger
Agreement, the parties hereto agree as follows:
ARTICLE 1
AGREEMENT TO VOTE
Section 1.01. Voting. Each D&O Stockholder hereby agrees that during the
time this Agreement is in effect such D&O Stockholder shall (or shall cause the
relevant record holder(s) to), in connection with any meeting or action by
written consent of the stockholders of the Company: (a) vote his or her Subject
Shares in favor of adoption of the Merger Agreement; (b) vote his or her Subject
Shares against any action or agreement that would reasonably be expected to
result in a breach of any representation, warranty, covenant or agreement of the
Company under the Merger Agreement; and (c) vote his or her Subject Shares
against any action or agreement that would reasonably be expected to prevent,
impede, interfere with, delay or postpone the consummation of the Merger,
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including, without limitation any (i) Acquisition Proposal, (ii) reorganization,
recapitalization, liquidation or winding-up of the Company or any other
extraordinary transaction involving the Company or (iii) corporate action the
consummation of which would frustrate the purposes, or prevent or delay the
consummation, of the transactions contemplated by the Merger Agreement.
Section 1.02. Grant Of Irrevocable Proxy. (a) During the term of this
Agreement, each D&O Stockholder hereby grants to Merger Subsidiary, and to each
officer of Parent, a proxy to vote his or her Subject Shares as indicated in
Section 1.01. Each D&O Stockholder intends this proxy to be, and this proxy is,
irrevocable and coupled with an interest and each D&O Stockholder will
immediately take such further action or execute such other instruments as may be
necessary to effectuate the intent of this proxy. Each D&O Stockholder hereby
ratifies and confirms all that such irrevocable proxy may lawfully do or cause
to be done. Each D&O Stockholder hereby revokes any proxy previously granted by
him or her with respect to his or her Subject Shares. Each D&O Stockholder
intends such proxy to be irrevocable in accordance with Delaware Law.
(b) Each D&O Stockholder represents that any proxies heretofore given in
respect of the Shares are not irrevocable, and that any such proxies are hereby
revoked.
(c) Each D&O Stockholder understands and acknowledges that Parent and
Merger Subsidiary are entering into the Merger Agreement in reliance upon, among
other things, such D&O Stockholder's execution and delivery of this Agreement.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE D&O STOCKHOLDERS
Each D&O Stockholder represents and warrants to Parent and Merger Subsidiary as
to himself, severally and not jointly, as follows:
Section 2.01. Ownership Of Original Shares. Each D&O Stockholder is the
beneficial owner of the number of Original Shares set forth on Appendix A
hereto. As of the date hereof, each D&O Stockholder does not directly own (of
record or through a brokerage firm or other nominee arrangement) any outstanding
shares of capital stock of the Company other than his or her Original Shares.
Each D&O Stockholder has the sole right to Transfer and direct the voting of his
or her Original Shares, and none of his or her Original Shares is subject to any
voting trust or other agreement, arrangement or restriction with respect to the
Transfer or the voting of the Original Shares, except as set forth in this
Agreement.
Section 2.02. Power; Binding Agreement. Each D&O Stockholder has the legal
capacity, power and authority to enter into and perform all of his or her
obligations under this Agreement. The execution, delivery and performance of
this Agreement by each D&O Stockholder will not violate any other agreement to
which such D&O Stockholder is
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a party including, without limitation, any voting agreement, stockholders
agreement or voting trust. This Agreement has been duly and validly executed and
delivered by each D&O Stockholder and constitutes a valid and binding agreement
of each D&O Stockholder, enforceable against each D&O Stockholder in accordance
with its terms.
Section 2.03. No Conflicts. No authorization, consent or approval of, or
filing with, any court or any public body or authority is necessary for the
fulfillment by each D&O Stockholder of such D&O Stockholder's obligations under
this Agreement. The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby will not constitute a
breach, violation or default (or any event which, with notice or lapse of time
or both, would constitute a default) under, or result in the termination of, or
accelerate the performance required by, or result in a right of termination or
acceleration under, any note, bond, mortgage, indenture, deed of trust, license,
lease, agreement or other instrument to which such D&O Stockholder is a party or
by which such D&O Stockholder's Subject Shares are bound.
ARTICLE 3
COVENANTS OF THE D&O STOCKHOLDERS
Section 3.01. Covenants of the D&O Stockholders. Each D&O Stockholder
agrees as to himself, severally and not jointly, as follows:
(a) Except as contemplated by the terms of this Agreement and the Merger
Agreement, such D&O Stockholder shall not:
(i) sell, transfer, pledge, assign or otherwise dispose of (including
by gift) (collectively, "Transfer"), or consent to or permit any Transfer
of, or enter into any contract, option or other arrangement or
understanding with respect to the Transfer of, his or her Subject Shares to
any person, other than Merger Subsidiary or Merger Subsidiary's designee;
provided that three months prior to the expiration of any option to
purchase Shares in accordance with its terms, the D&O Stockholder who is
the holder of that option to purchase Shares may sell, transfer, pledge,
assign or otherwise dispose of, or enter into any contract, option or other
arrangement or understanding with respect to the sale, transfer, pledge,
assignment or other disposition of, any Subject Shares in connection with
the exercise (cashless or otherwise) of that option to purchase Shares in
an amount that is sufficient to satisfy the payment of the exercise price
and any transaction costs and any tax liability incurred by the D&O
Stockholder in connection with such exercise;
(ii) enter into, or otherwise subject his or her Subject Shares to,
any voting arrangement, whether by proxy, voting agreement, voting trust,
power-of-attorney or otherwise, with respect to his or her Subject Shares;
or
3
(iii) take any other action that would in any way restrict, limit or
interfere with the performance of his or her obligations hereunder or the
transactions contemplated to be performed by him hereunder.
(b) Such D&O Stockholder hereby irrevocably and unconditionally waives, and
agrees to prevent the exercise of, any rights of appraisal or rights to dissent
in connection with the Merger that such D&O Stockholder may have with respect to
his or her Subject Shares.
(c) Such D&O Stockholder hereby agrees that any attempted transfer or other
disposition in violation of Section 4.01(a)(i) shall be null and void.
Section 3.02. No Solicitation; Other Offers. Each D&O Stockholder, solely
in his or her capacity as the owner of his or her Subject Shares as provided in
Section 4.13 of this Agreement (without limiting the obligations of such D&O
Stockholder as a director or officer of the Company), agrees that he or she
shall not directly or indirectly, (i) solicit, initiate or take any action to
facilitate or encourage the submission of any Acquisition Proposal or , (ii)
enter into or participate in any discussions or negotiations with, furnish any
information relating to the Company or any of its Subsidiaries or afford access
to the business, properties, assets, books or records of the Company or any of
its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist,
participate in, facilitate or encourage any effort by any Third Party that is
seeking to make, or has made, an Acquisition Proposal.
Section 3.03. Further Assurances. Each D&O Stockholder shall, from time to
time, execute and deliver, or cause to be executed and delivered, such
additional or further transfers, assignments, endorsements, consents and other
instruments as Parent or Merger Subsidiary may reasonably request for the
purpose of such D&O Stockholder's effective performance of his or her
obligations under this Agreement and to vest the power to vote his or her
Subject Shares as contemplated by Section 1.02. Parent and Merger Subsidiary
jointly and severally agree to use reasonable best efforts to take, or cause to
be taken, all actions necessary to comply promptly with all legal requirements
that may be imposed with respect to the transactions contemplated by this
Agreement.
ARTICLE 4
MISCELLANEOUS
Section 4.01. Expenses. All costs and expenses incurred by any party in
connection with this Agreement shall be paid by the party incurring such cost or
expense.
Section 4.02. Specific Performance; Remedies. The parties hereto agree
that if any of the provisions of this Agreement were not to be performed in
accordance with their specific terms or were to be otherwise breached,
irreparable damage would occur, no adequate remedy at law would exist and
damages would be difficult to determine, and that
4
in such circumstances the parties will be entitled to specific performance of
the terms hereof, in addition to any other remedy at law or equity. The parties
agree that no party shall be entitled to money damages for any breach of this
Agreement; provided that a party shall be entitled to recover any reasonable
costs and expenses incurred in connection with a successful legal action to
enforce the terms of this Agreement.
Section 4.03. Notices. All notices and other communications hereunder will
be in writing and will be deemed given if delivered personally, telecopied
(which is confirmed) or mailed by registered or certified mail (return receipt
requested) to the parties at the following addresses (or at such other address
for a party as is specified by like notice):
(a) if to Merger Subsidiary or Parent to:
Xxxx Zeiss TopCo GmbH
Xxxxxxxxxxx 00
00000 Xxxxx
Xxxxxxxxx: Dr. Xxxxxxxxx Xxxxxx
Facsimile No.: x00 0000 000000
E-mail: xx.xxxxxxx@xxxxx.xx
with copies to:
Xxxx Zeiss AG
Xxxx-Xxxxx-Xxxxxx 00
X-00000 Xxxxxxxxxx
Attention: Xxxxxx Xxxxxxxx
Facsimile No.: x00 0000 000000
E-mail: xxxxxxxx@xxxxx.xx
EQT III Limited
East Wing, Trafalgar Park
St. Xxxxx Port, Guernsey GY1 6HJ,
Channel Island
Attention: Xxxxx Xxxxxxxx
Facsimile No.: x00 0000 000000
E-mail: xxxxx@xxxxxxxxxxxx.xxx
and
Xxxxx, Polk & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx
Facsimile No.: (000) 000 0000
E-mail: xxxxxxx.xxxxx@xxx.xxx
5
(b) if to any D&O Stockholder, to his or her address listed on
Appendix A hereto or to any other address or facsimile number as that party
may hereafter specify for this purpose by notice to the other parties.
All such notices, requests and other communications shall be deemed received on
the date of receipt by the recipient thereof if received before 5 p.m. local
time on a business day in the place of receipt. Otherwise, any such notice,
request or communication shall be deemed not to have been received until the
next succeeding business day in the place of receipt.
Section 4.04. Amendments. This Agreement may not be modified, amended,
altered or supplemented, except upon the execution and delivery of a written
agreement executed by each party hereto whose rights or obligations are being
amended.
Section 4.05. Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder will be assigned by any of the parties hereto
(whether by operation of law or otherwise) without the prior written consent of
each of the other parties whose rights or obligations would be affected by such
assignment and any such purported assignment without such prior written consent
shall be null and void; provided that Merger Subsidiary and Parent may assign
this Agreement and any of their respective rights, interests and obligations
hereunder to any of their respective direct or indirect Subsidiaries without
such prior written consent, but no such assignment shall relieve either such
party of its obligations under this Agreement. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of and be
enforceable by the parties and their respective successors and assigns. Each D&O
Stockholder agrees as to himself, severally and not jointly, that this Agreement
and his or her obligations hereunder shall attach to his or her Subject Shares
and shall be binding upon any person or entity to which legal or beneficial
ownership of such Subject Shares shall pass, whether by operation of law or
otherwise, including such D&O Stockholder's heirs, guardians, administrators or
successors.
Section 4.06. Governing Law; Jurisdiction. This Agreement shall 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 conflicts of laws thereof. Each of Stockholder and Parent irrevocably submits
to the exclusive jurisdiction of any Delaware state or federal court sitting in
the State of Delaware in any action arising out of or relating to this
Agreement, hereby irrevocably agrees that all claims in respect of such action
shall be heard and determined in such Delaware state or federal court, and
hereby irrevocably waives, to the fullest extent it may effectively do so, the
defense of an inconvenient forum to the maintenance of such action or
proceeding.
Section 4.07. Counterparts. This Agreement may be executed in two or more
counterparts, all of which will be considered one and the same agreement and
will become effective when two or more counterparts have been signed by each of
the parties and
6
delivered to the other parties, it being understood that all parties need not
sign the same counterpart.
Section 4.08. Interpretation. When a reference is made in this Agreement
to a Section, such reference will be to a Section of this Agreement unless
otherwise indicated. The headings contained in this Agreement are for reference
purposes only and will 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 will be deemed to be followed by the words "without
limitation". References to the "Company" include the Subsidiaries of the Company
unless the context clearly requires otherwise. The phrases "the date of this
Agreement", "the date hereof" and terms of similar import, unless the context
otherwise requires, will be deemed to refer to December 5, 2004. As used in this
Agreement, the term "affiliate" shall have the meaning set forth in Rule 12b-2
of the Exchange Act; provided that in no event will Parent or Merger Subsidiary,
on the one hand, or the Company or any of its Subsidiaries, on the other, be
considered an affiliate of the other such party(ies).
Section 4.09. Defined Terms. Capitalized terms used but not defined herein
shall have the respective meanings set forth in the Merger Agreement.
Section 4.10. Stop Transfer Restriction. In furtherance of this Agreement,
each D&O Stockholder shall and hereby does authorize Merger Subsidiary's counsel
to notify the Company's transfer agent that there is a stop transfer restriction
with respect to all of his or her Subject Shares (and that this Agreement places
limits on the voting and transfer of his or her shares); provided that (a) each
such notification to the Company's transfer agent in accordance with this
Section 4.10 shall provide that the relevant stop transfer restriction shall not
limit the exercise by that D&O Stockholder of any options to purchase Shares, or
the transfer of his or her Subject Shares in compliance with Section 3.01, (b)
Merger Subsidiary's counsel shall notify the Company's transfer agent that any
such stop transfer restrictions shall, with respect to each D&O Stockholder,
terminate and be of no further force or effect on and after April 30, 2005 if
the Merger Agreement is terminated in accordance with its terms and (c) Merger
Subsidiary's counsel shall give prompt notice to Company's transfer agent once
this Agreement and such stop transfer has terminated.
Section 4.11. Entire Agreement; No Third Party Beneficiaries. This
Agreement (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 other than the parties hereto any rights or remedies hereunder.
Section 4.12. Severability. Whenever possible, each provision of this
Agreement will be interpreted in a such manner as to be effective and valid
under applicable law but if any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable law or
rule in any jurisdiction, such invalidity, illegality or unenforceability will
not affect any other provision in such jurisdiction, and this
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Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision had never been contained
herein.
Section 4.13. D&O Stockholder Capability. By executing and delivering this
Agreement, each D&O Stockholder makes no agreement or understanding herein in
his or her capacity or actions as a director, officer or employee of the Company
or any subsidiary of the Company. Each D&O Stockholder is signing and entering
into this Agreement solely in his or her capacity as the owner of his or her
Subject Shares, and nothing herein shall limit or affect in any way any actions
that may be hereafter taken by him or her in his or her capacity as an employee,
officer or director of the Company or any Subsidiary of the Company.
Section 4.14. Validity. The invalidity or unenforceability of any
provision of this Agreement will not affect the validity or enforceability of
any other provisions hereof, which will remain in full force and effect. Upon
any determination that any term or other provision is invalid 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 order that the transactions contemplated by this Agreement may be
consummated as originally contemplated to the fullest extent possible.
Section 4.15. Binding Effect On Signatories. Once this Agreement has been
executed by Parent and Merger Subsidiary, this Agreement shall be binding,
severally and not jointly, upon each D&O Stockholder who executes this
Agreement. Each such executing D&O Stockholder shall be bound hereby, regardless
of whether or not any other D&O Stockholder executes this Agreement.
Section 4.16. Expiration. This Agreement and the rights and obligations of
the respective parties hereto under this Agreement shall terminate, and be of no
further force or effect, on the earliest to occur of (A) the Effective Time, (B)
the termination of this Agreement by written notice from Parent or Merger
Subsidiary to each D&O Stockholder and (C) the termination of the Merger
Agreement in accordance with its terms; provided that Sections 4.01, 4.03, 4.06,
4.08, 4.11, 4.13, 4.14 and 4.17 shall survive any such termination.
Section 4.17. Nonsurvival Of Representations And Warranties. None of the
representations and warranties in this Agreement or in any instrument delivered
pursuant to this Agreement will survive the Effective Time or any termination of
this Agreement. This Section 4.17 shall not limit any covenant or agreement of a
party that by its terms expressly contemplates performance after the Effective
Time.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, Parent, Merger Subsidiary and each D&O Stockholder have
caused this Agreement to be signed, in the case of Parent and Merger Subsidiary,
by their respective officers thereunto duly authorized, as of the date first
written above.
XXXX ZEISS TOPCO GMBH
By: /s/ Xxxxxxxxx Xxxxxx
---------------------------------
Name: Dr. Xxxxxxxxx Xxxxxx
Title: Managing Director
SUN ACQUISITION, INC.
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxx
Title:
9
D&O STOCKHOLDERS
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President & Chief Executive Officer
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman of the Board of Directors
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Director
By: /s/ Xxxxxx X. Muh
------------------------------------
Name: Xxxxxx X. Muh
Title: Director
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Director
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Director
10
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Director
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President &
General Manager, North America
By: /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
Title: Executive Vice President &
General Manager, Europe
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
Title: Executive Vice President &
Chief Financial Officer
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President & Managing Director,
Asia Pacific
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Appendix A
Subject Shares
Shares Subject
to Options
[For
Shares Information
D&O Stockholders Title Owned Purposes Only] Address
Xxxxxx X Xxxxxx President & Chief 10,000 389,800 SOLA International Inc.
Executive Officer 00000 X. Xxxxx Xxx Xx.
Xxxxx 000
Xxx Xxxxx, XX 00000
Xxxxxxx X. Xxxxxxxx Chairman of the Board 275,600 69,709 American Optical
of Directors 00 Xxxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxxxx Xxxxxxxx Director 0 3,753 Big Dog Holdings, Inc.
000 Xxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000
Xxxxxx X. Muh Director 3,000 31,440 Xxxxxx Securities Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX
00000
Xxxxxxx Xxxxxxxx Director 0 8,000 00 Xxxxxx Xxxxxx
Xxx Xxxx, XX
00000
Xxxxxxx X. Xxxxxxx Director 8,000 38,916 0000 Xxxxx Xxxxx
Xxxxxxxxxxxx, XX
00000
Xxxxxxx X. Xxxxx Director 0 14,530 000 Xxxxxxxx Xxxxx,
Xxxxxxx Xxxxxxxxx, XX
00000
Xxxxx X. Xxxxxxx Executive Vice 0 39,000 SOLA International Inc.
President & General 00000 X. Xxxxx Xxx Xx.
Manager, Xxxxx Xxxxxxx Xxxxx 000
Xxx Xxxxx, XX 00000
Xxxx Xxxxxxxx Executive Vice 0 120,000 SOLA International
President & General 0xx Xxxxx, 0 Xxxx Xxxxx
Xxxxxxx, Xxxxxx 160 Lichfield Road
Xxxxxx Coldfield
Xxxx Xxxxxxxx,
X00 0XX
Xxxxxx Xxxxxxx
Xxxxxx X. Xxxx Executive Vice 500 85,000 SOLA International Inc.
President & Chief 00000 X. Xxxxx Xxx Xx.
Financial Xxxxxxx Xxxxx 000
Xxx Xxxxx, XX
00000
Xxxxx X Xxxxx Vice President & 0 64,270 SOLA International
Managing Director, Xxxxxxxxx Xxxx
Xxxx Xxxxxxx Xxxxxxxx
XX 0000
Xxxxxxxxx
