EXHIBIT 2.2
VOTING AND TENDER AGREEMENT
VOTING AND TENDER AGREEMENT, dated as of March 20, 2001 (this "AGREEMENT"),
by and among WARBURG, XXXXXX INVESTORS, L.P., a Delaware limited partnership
(the "PRINCIPAL STOCKHOLDER"), PITNEY XXXXX INC., a Delaware corporation
("PARENT"), and MAUI ACQUISITION CORP., a Delaware corporation ("PURCHASER").
W I T N E S S E T H:
WHEREAS, simultaneously with the execution of this Agreement, Parent,
Purchaser and Alysis Technologies, Inc., a Delaware corporation (the "COMPANY"),
have entered into an Agreement and Plan of Merger (the "MERGER AGREEMENT"),
pursuant to which Purchaser has agreed, among other things, to commence a cash
tender offer (as such tender offer may hereafter be amended from time to time,
the "OFFER") to purchase all of the (x) outstanding shares of common stock of
the Company, par value $.01 per share (the "COMMON SHARES"), and
(y) outstanding shares of the class B common stock of the Company, par value
$.01 per share (the "CLASS B SHARES" and, together with the Common Shares, the
"SHARES"), with such tender offer to be followed by the merger of Purchaser with
and into the Company (the "MERGER");
WHEREAS, as of the date hereof, the Principal Stockholder is the record and
beneficial owner of the number of Shares listed opposite such Principal
Stockholder's name on Schedule 1; and
WHEREAS, as a condition to the willingness of Parent and Purchaser to enter
into the Merger Agreement, each of the Parent and Purchaser has required that
the Principal Stockholder agree, and in order to induce Parent and Purchaser to
enter into the Merger Agreement, the Principal Stockholder has agreed, to enter
into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises,
representations, warranties, covenants and agreements contained herein and in
the Merger Agreement, the parties hereto, intending to be legally bound hereby,
agree as follows:
1. CERTAIN DEFINITIONS. Capitalized terms used and not defined herein
shall have the respective meanings ascribed to them in the Merger Agreement. In
addition, for purposes of this Agreement:
"AFFILIATE" means, when used with respect to any Person, any other Person
directly or indirectly through one or more intermediaries controlling,
controlled by, or under common control with such Person. As used in the
definition of "Affiliate," the term "CONTROL" means possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.
"BENEFICIALLY OWN" or "BENEFICIAL OWNERSHIP" with respect to any securities
means having "beneficial ownership" of such securities (as determined pursuant
to Rule 13d-3 under the Exchange Act), including pursuant to any agreement,
arrangement or understanding, whether or not in writing. Without duplicative
counting of the same securities by the same holder, securities Beneficially
Owned by a Person shall include securities Beneficially Owned by all Affiliates
of such Person and all other Persons with whom such Person would constitute a
"group" within the meaning of Section 13(d) of the Exchange Act and the rules
promulgated thereunder.
"EXCHANGE ACT" means the Securities Exchange Act of 1934 and the rules and
regulations promulgated thereunder, as amended.
"GOVERNMENTAL ENTITY" means any foreign, federal, state, municipal or other
court, administrative agency, commission or other governmental or regulatory
body or authority or instrumentality or political subdivision, including tribal
bodies, or any official thereof.
"OWNED SHARES" means, with respect to the Principal Stockholder, the Shares,
whether Beneficially Owned or held of record, by the Principal Stockholder on
the date hereof or which may hereafter be acquired by the Principal Stockholder.
"OPTIONS" means, with respect to the Principal Stockholder, the options to
acquire Common Shares now owned or which may hereafter be acquired by the
Principal Stockholder.
"PERSON" or "PERSON" means any natural person, firm, corporation, business
trust, joint venture, joint stock company, incorporated or unincorporated
association, company, partnership, limited liability company or other entity, or
any Governmental Entity, or any agency or political subdivision thereof, and
shall include any successor (by merger or otherwise) of such entity.
"REPRESENTATIVE" means, with respect to any Person, such Person's officers,
directors, employees, agents and representatives (including any investment
banker, financial advisor, accountant, attorney, agent, representative or expert
retained by or acting on behalf of such Person or its subsidiaries).
"TRANSFER" means, with respect to a security, the sale, transfer, pledge,
hypothecation, encumbrance, assignment or disposition of such security or the
Beneficial Ownership thereof, the offer to make such a sale, transfer or other
disposition, and each option, agreement, arrangement or understanding, whether
or not in writing, to effect any of the foregoing. As a verb, "TRANSFER" shall
have a correlative meaning.
2. TENDER OF OWNED SHARES. The Principal Stockholder hereby agrees to
validly tender, or cause the Record Holder (as defined below) to validly tender,
all of its Owned Shares pursuant to and in accordance with the Offer (or any
replacement or subsequent tender offer by Parent or any of its Subsidiaries for
all of the Shares at a price per share in cash equal to at least $1.39 made
prior to the termination of this Agreement) within ten (10) Business Days of the
commencement thereof, and not to withdraw or permit to be withdrawn any Owned
Shares therefrom.
3. VOTING OF OWNED SHARES. During the period commencing on the date hereof
and continuing until the earlier of (x) the consummation of the Offer or
(y) the termination of this Agreement in accordance with Section 10 hereof, the
Principal Stockholder hereby agrees as follows:
(a) ATTENDANCE AT MEETINGS. At any annual or special meeting of the
stockholders of the Company (including any adjournment thereof), however
called, or in connection with any written consent of the stockholders of the
Company, at which or in which matters relating to the Merger, the Merger
Agreement or any transaction contemplated thereby are considered, the
Principal Stockholder shall appear, or cause the holder of record on any
applicable record date with respect to any Owned Shares of the Principal
Stockholder (the "RECORD HOLDER") to appear, at each such meeting, in person
or by proxy, or otherwise cause the Owned Shares to be counted as present
thereat for the purposes of establishing a quorum.
(b) VOTING. At any meeting of the stockholders of the Company, however
called, and in any action by consent of the stockholders of the Company, the
Principal Stockholder shall vote, or cause the Record Holder to vote, the
Owned Shares (to the extent such Person also has the right to vote such
Owned Shares) of the Principal Stockholder: (i) in favor of the Merger, the
Merger Agreement (as amended from time to time) and the transactions
contemplated by the Merger Agreement and (ii) against any proposal for any
extraordinary corporate transaction, such as a recapitalization,
dissolution, liquidation, or sale of assets of the Company or any merger,
consolidation or other business combination (other than the Merger) between
the Company and any Person (other than Parent or a Subsidiary of Parent) or
any other action or agreement that is intended or which reasonably could be
expected to (x) result in a breach of any covenant, representation or
warranty or any other obligation or agreement of the Company under the
Merger Agreement, (y) result in any of the conditions to the Company's
obligations under the
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Merger Agreement not being fulfilled or (z) impede, interfere with, delay,
postpone or materially adversely affect the Merger and the transactions
contemplated by the Merger Agreement.
4. ACKNOWLEDGMENT. The Principal Stockholder hereby acknowledges the
receipt and its review of a copy of the Merger Agreement.
5. CONVERSION OF PREFERRED STOCK. The Principal Stockholder hereby
acknowledges and agrees that, at the Effective Time, each share of Preferred
Stock beneficially owned by it shall, in accordance with the Certificate of
Designation and by virtue of the Merger and without any action on the part of
the Principal Stockholder, be converted into the right to receive the
Liquidation Preference (as such term is defined in the Certificate of
Designation), as calculated as of the Effective Time, without interest, upon
surrender of the certificate representing such shares of Preferred Stock.
6. TERMINATION OF AGREEMENTS. The Principal Stockholder hereby agrees
that, prior to the Effective Time, it shall terminate or cause to be terminated
all agreements between the Company or a Subsidiary, on the one hand, and the
Principal Stockholder or any of its Affiliates, on the other hand, and the
Company or such Subsidiary, as the case may be, shall retain no, and be released
from all, obligations pursuant to such agreements; PROVIDED, HOWEVER, that the
Loan Agreement, dated as of January 4, 2001, by and between the Principal
Stockholder and the Company shall continue in effect until terminated pursuant
to its terms, which such termination shall not occur later than the Effective
Time. Notwithstanding the foregoing, nothing in this Section 6 shall be
construed to obligate the Principal Stockholder to cause to be terminated any
agreement between one of its Affiliates, on the one hand, and the Company, on
the other hand, to the extent that such agreement was entered into in the
ordinary course of business.
7. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS. The Principal
Stockholder hereby represents and warrants to Parent and Purchaser, as follows:
(a) EXISTENCE. The Principal Stockholder has been duly organized and is
validly existing and in good standing under the laws of the jurisdiction of
its organization.
(b) POWER AND AUTHORITY. The Principal Stockholder has all necessary
partnership power and authority to enter into this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated
hereby, and the execution, delivery and performance of this Agreement by the
Principal Stockholder and the consummation by the Principal Stockholder of
the transactions contemplated hereby have been duly authorized by all
necessary partnership action on the part of the Principal Stockholder, and
no other proceeding on the part of the Principal Stockholder is necessary to
authorize the execution, delivery or performance of this Agreement or the
consummation of the transactions contemplated hereby.
(c) EXECUTION. This Agreement has been duly and validly executed and
delivered by the Principal Stockholder and, assuming the valid
authorization, execution and delivery of this Agreement by Parent and
Purchaser, constitutes a legal, valid and binding obligation of the
Principal Stockholder, enforceable against the Principal Stockholder in
accordance with its terms except to the extent enforceability may be limited
by bankruptcy, insolvency, moratorium or other similar laws affecting
creditors' rights generally or by general principles governing the
availability of equitable remedies.
(d) NO CONFLICT. None of the execution and delivery of this Agreement
by the Principal Stockholder, the consummation by the Principal Stockholder
of the transactions contemplated hereby or compliance by the Principal
Stockholder with any of the provisions hereof shall (i) conflict with or
violate the certificate of limited or the limited partnership agreement, or
other organizational documents, of the Principal Stockholder, (ii) result in
a violation or 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
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terms, conditions or provisions of any note, loan agreement, bond, mortgage,
indenture, license, contract, commitment, lease, permit, franchise,
arrangement, understanding, agreement or other instrument or obligation of
any kind to which the Principal Stockholder is a party or by which the
Principal Stockholder or any of his or its properties or assets (including
the Owned Shares) may be bound, or (iii) violate any order, writ,
injunction, decree, judgment, law, statute, rule, regulation or
administrative or arbitral order applicable to the Principal Stockholder or
any of its properties or assets, excluding from the foregoing such
violations, breaches or defaults which could not reasonably be expected to,
individually or in the aggregate, have a material adverse effect on the
Principal Stockholder or which would not materially impair the ability of
the Principal Stockholder to consummate the transactions contemplated
hereby.
(e) NO CONSENTS OR APPROVALS. The execution and delivery of this
Agreement by the Principal Stockholder does not, and the performance of this
Agreement by the Principal Stockholder shall not, require any consent,
approval, authorization or permit of, or filing with or notification to, any
court or arbitrator or any governmental body, agency or official, 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 reasonably be expected to
prevent or delay the performance by the Principal Stockholder of its
obligations under this Agreement.
(f) TITLE TO THE OWNED SHARES. The Principal Stockholder is the
Beneficial Owner or holder of record of the Owned Shares listed opposite its
name on Schedule 1. Such Owned Shares are all the securities of the Company
either Beneficially Owned or owned of record by the Principal Stockholder as
of the date hereof and the Principal Stockholder owns no other rights or
interests exercisable for or convertible into any securities of the Company.
Such Owned Shares are owned free and clear of all security interests, liens,
claims, pledges, options, rights of first refusal, agreements, limitations
on the Principal Stockholder's voting rights, charges and other encumbrances
of any nature whatsoever except, with respect to the Options, the option
plans and agreements pursuant to which such options were issued. The
Principal Stockholder has not appointed or granted any proxy, which
appointment or grant is still effective, with respect to the Owned Shares.
(g) CONTINUOUS OWNERSHIP. Schedule 2 sets forth the respective dates
of acquisition of the Owned Shares and Preferred Stock by the Principal
Stockholder. The Principal Stockholder has Beneficially Owned the Owned
Shares and Preferred Stock since the respective dates of acquisition of such
Owned Shares and Preferred Stock as set forth on Schedule 2 and has not
disposed of any Owned Shares and Preferred Stock since such respective
acquisition dates (other than conversion into other Owned Shares), and,
assuming the accuracy of publicly available information regarding the
Company's outstanding stock, the percentage of the stock of the Company
owned by the Principal Stockholder (for purposes of section 382 of the
Internal Revenue Code of 1986) has never been less than 50% since it first
acquired Owned Shares or Preferred Shares. The Principal Stockholder agrees
to indemnify and hold harmless Parent and Purchaser for any additional tax
liabilities that arise out of or relate to any breach by the Principal
Stockholder of the representations and warranties set forth in this
Section 7(g) that causes the amount of net operating losses that are
available to the Parent in any taxable period after the Merger to be less
than the amount of net operating losses that would have been available if
there were no such breach; provided, however, that in no event shall the
liability of the Principal Stockholder under this Section 7(g) exceed the
greater of (x) Four Million United States Dollars ($4,000,000) or
(y) twenty-eight percent (28%) of the net proceeds received by the Principal
Stockholder in the transaction contemplated by the Merger Agreement.
Notwithstanding anything to the contrary in this Section 7(g), Parent shall
engage Ernst & Young LLP ("ERNST & YOUNG") to perform a "Section 382
Analysis," to be completed within ninety (90) days after the closing of the
Merger,
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and which shall, among other things, express the accounting firm's view as
to whether an Ownership Change has occurred at any time prior to the Merger,
and, if such analysis confirms that such an Ownership Change has not
occurred, then the indemnification of Parent and Purchaser by the Principal
Stockholder pursuant to this Section 7(g) shall terminate and the Principal
Stockholder shall have no further liability under this Section 7(g). The
Parent and the Principal Stockholder shall mutually cooperate fully and
shall provide all information requested by Ernst & Young during the conduct
of the Section 382 study. Such cooperation shall include the making
available of all shareholder records, option holder records and any other
data in their possession or at their disposal necessary for completion of
the Section 382 study in the allotted time frame. Notwithstanding anything
to the contrary, the Parent will coordinate all aspects of the Section 382
study with Ernst & Young. The cost of the Section 382 study to be prepared
by Ernst & Young shall be borne by the Parent up to the amount of Xxx
Xxxxxxx Xxxxxxxx Xxxxxx Xxxxxx Dollars ($100,000). Any costs in excess of
$100,000 shall be borne by the Principal Stockholder.
8. COVENANTS.
(a) NO INCONSISTENT AGREEMENTS. The Principal Stockholder hereby
covenants and agrees that, except as contemplated by this Agreement, it
shall not enter into any agreement, arrangement or understanding with, or
grant a proxy or power of attorney to, any Person (other than Parent or
Purchaser) with respect to the Owned Shares which would prevent the
Principal Stockholder from complying with its obligations under this
Agreement.
(b) RESTRICTION ON TRANSFER; PROXIES. The Principal Stockholder hereby
covenants and agrees that, until this Agreement is terminated in accordance
with Section 11 hereof, the Principal Stockholder shall not, directly or
indirectly: (i) except as provided in Sections 2 and 11 hereof, Transfer
(whether by operation of law, by agreement or otherwise) to any Person all
or any portion of the Owned Shares and shall not cause any security
interests, liens, claims, pledges, charges, encumbrances, options, rights of
first refusals, agreements or other limitations on such Principal
Stockholder's voting rights, to attach to the Owned Shares to be tendered to
Purchaser pursuant to Section 2 hereof or to the Options or any Owned Shares
issuable thereunder; or (ii) grant any proxies or powers of attorney (other
than to Parent or Purchaser), deposit any Owned Shares into a voting trust
or enter into a voting agreement, understanding or arrangement with respect
to such Owned Shares. Notwithstanding the foregoing, the Principal
Stockholder may Transfer any or all of its Owned Shares to one or more of
its Affiliates; PROVIDED, that prior to effecting such Transfer, each such
Affiliate shall agree in writing to be bound by the terms and conditions of
this Agreement pursuant to an instrument, in form and substance reasonably
satisfactory to Parent and Purchaser.
(c) NO SOLICITATION. From the date hereof until the consummation of
the Offer or the termination of this Agreement in accordance with its terms,
the Principal Stockholder (i) shall immediately terminate any discussions
with any third party concerning an Acquisition Proposal and (ii) shall not,
and shall not permit any of its Representatives to, directly or indirectly,
(A) encourage, solicit, initiate or knowingly facilitate any inquiries or
the making of any proposal or offer with respect to an Acquisition Proposal,
(B) participate in any discussions or negotiations with, or provide any
information to, or otherwise take any other action to assist or facilitate
any Person or group (other than Parent or Purchaser or any Affiliate or
associate of Parent or Purchaser) concerning any Acquisition Proposal,
(C) enter into an agreement with any Person, other than Parent or Purchaser,
providing for a possible Acquisition Proposal or (D) make or authorize any
statement, recommendation or solicitation in support of any possible
Acquisition Proposal by any Person, other than by Parent or Purchaser.
Notwithstanding the foregoing, the Principal Stockholder or any of its
Representatives may take any such actions in the Principal
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Stockholder's or any of its Representatives' capacity as a director or
officer of the Company to the extent permitted pursuant to and in strict
accordance with the terms of the Merger Agreement.
(d) NOTIFICATION. The Principal Stockholder hereby agrees to notify
Parent promptly of the number of any additional Shares and the number and
type of any other shares of capital stock acquired by it, if any, after the
date hereof.
9. STOP TRANSFER. The Principal Stockholder shall not request that the
Company register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Owned Shares, unless such
transfer is made in compliance with this Agreement.
10. FURTHER ASSURANCES. From time to time, at Purchaser's or Parent's
request and without further consideration, the Principal Stockholder agrees that
it 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.
11. TERMINATION. This Agreement, and all rights and obligations of the
parties hereunder, shall terminate upon the earlier of (a) the date upon which
the Parent shall have purchased and paid for all of the Owned Shares of the
Principal Stockholder in accordance with the Offer (or any subsequent or
replacement tender offer by the Parent or any of its Subsidiaries) and (b) the
date upon which the Merger Agreement is terminated in accordance with its terms;
PROVIDED, HOWEVER, that if the Merger Agreement is terminated pursuant to any of
Sections 8.1(d), (e), (f), (g) or (h) of the Merger Agreement and at the time of
such termination the Termination Fee either is or may become payable pursuant to
Section 8.3(b) of the Merger Agreement, this Agreement shall only terminate on
the date which is six (6) months after the date of termination of the Merger
Agreement.
12. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes
all other prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
(b) COSTS AND EXPENSES. All costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid
by the party incurring such expenses.
(c) ASSIGNMENT. This Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of the parties and their respective
successors, personal or legal representatives, executors, administrators,
heirs, distributees, devisees, legatees and permitted assigns, but neither
this Agreement nor any of the rights, interests or obligations hereunder
shall be assigned by either party (whether by operation of law or otherwise)
without the prior written consent of the other party; PROVIDED, that Parent
and Purchaser may assign their respective rights and obligations hereunder
to any direct or indirect Subsidiary of Parent which is an assignee of such
parties' rights and obligations under the Merger Agreement, but no such
assignment shall relieve Parent or Purchaser, as the case may be, of its
obligations hereunder. Nothing in this Agreement, express or implied, is
intended to or shall confer upon any other Person any rights, benefits or
remedies of any nature whatsoever under or by reason of this Agreement.
(d) AMENDMENTS; WAIVER. This Agreement may not be amended, changed,
supplemented or otherwise modified or terminated, except upon the execution
and delivery of a written agreement executed by each of the parties hereto.
The parties may waive compliance by the other parties hereto with any
representation, agreement or condition otherwise required to be complied
with by such other party hereunder, but any such waiver shall be effective
only if in writing executed by the waiving party.
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(e) NOTICE. All notices and other communications hereunder shall be in
writing and shall be deemed given upon (i) transmitter's confirmation of a
receipt of a facsimile transmission, (ii) confirmed delivery by a standard
overnight carrier or when delivered by hand or (iii) the expiration of five
(5) Business Days after the day when mailed by certified or registered mail,
postage prepaid, addressed at the following addresses (or at such other
address for a party as shall be specified by like notice):
If to Parent or Purchaser: Pitney Xxxxx Inc
Xxx Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxxxxx and
Deputy General Counsel
Facsimile: (000) 000-0000,
(000) 000-0000 and
(000) 000-0000
Copy to: Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
If to the Principal Stockholder: Warburg, Xxxxxx Investors, L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X.X. Xxxxx
Facsimile: (000) 000-0000
or to such other address or facsimile number as the Person to whom notice is
given shall have previously furnished to the others in writing in the manner set
forth above.
(f) SEVERABILITY. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
affecting the validity or enforceability of the remaining provisions hereof.
Any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
If any provision of this Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is enforceable.
(g) SPECIFIC PERFORMANCE. Each of the parties hereto acknowledges and
agrees that in the event of any breach of this Agreement, each non-breaching
party would be irreparably and immediately harmed and could not be made
whole by monetary damages. It is accordingly agreed that the parties hereto
(a) will waive, in any action for specific performance, the defense of
adequacy of a remedy at law and (b) shall be entitled, in addition to any
other remedy to which they may be entitled at law or in equity, to compel
specific performance of this Agreement.
(h) REMEDIES. All rights, powers and remedies provided under this
Agreement or otherwise available in respect hereof at law or in equity shall
be cumulative and not alternative, and the exercise of any thereof by any
party shall not preclude the simultaneous or later exercise of any other
such right, power or remedy by such party. The failure of any party hereto
to exercise any right, power or remedy provided under this Agreement or
otherwise available in respect hereof at law or in equity, or to insist upon
compliance by any other party hereto with its obligations hereunder, and any
custom or practice of the parties at variance with the terms hereof, shall
not
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constitute a waiver by such party of its right to exercise any such or other
right, power or remedy or to demand such compliance.
(i) DIRECTORS' FIDUCIARY DUTIES. Notwithstanding anything herein to
the contrary, nothing set forth herein shall in any way restrict any
director, officer or employee in the exercise of his fiduciary or other
duties as a director, officer or employee of the Company.
(j) GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware without giving effect to
the principles of conflicts of law thereof.
(k) JURISDICTION. EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY
AGREES THAT ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR ANY AGREEMENTS OR TRANSACTIONS CONTEMPLATED HEREBY SHALL
BE BROUGHT IN THE COURTS OF THE STATE OF DELAWARE OR THE UNITED STATES OF
AMERICA FOR THE DISTRICT OF DELAWARE AND HEREBY EXPRESSLY SUBMITS TO THE
PERSONAL JURISDICTION AND VENUE OF SUCH COURTS FOR THE PURPOSES THEREOF AND
EXPRESSLY WAIVES ANY CLAIM OF IMPROPER VENUE AND ANY CLAIM THAT SUCH COURTS
ARE AN INCONVENIENT FORUM.
(l) WAIVER OF JURY TRIAL. PARENT AND THE PRINCIPAL STOCKHOLDER HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL RIGHTS TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
(m) HEADINGS; INTERPRETATION. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement. Whenever
the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. "Include," "includes," and "including"
shall be deemed to be followed by "without limitation" whether or not they
are in fact followed by such words or words of like import.
(n) COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Parent, Purchaser and the Principal Stockholder have
caused this Agreement to be duly executed as of the day and year first above
written.
PITNEY XXXXX INC.
By: /s/ XXXXX XXXXX
-----------------------------------------
Name: Xxxxx Xxxxx
Title: Executive VP and Chief Financial
Officer
MAUI ACQUISITION CORP.
By: /s/ XXXXX XXXXX
-----------------------------------------
Name: Xxxxx Xxxxx
Title: Executive VP and Chief Financial
Officer
WARBURG, XXXXXX INVESTORS, L.P.
By: WARBURG, XXXXXX & CO., its General Partner
By: /s/ XXXXXXX XXXXX
-----------------------------------------
Name: Xxxxxxx Xxxxx
Title: Senior Managing Director
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SCHEDULE 1
NUMBER OF
NUMBER OF SHARES SHARES OWNED
NUMBER OF NUMBER OF OF SERIES B ON CONVERSION OF
COMMON CLASS B PREFERRED SERIES B NUMBER OF
NAME OF SHAREHOLDER SHARES OWNED SHARES OWNED STOCK OWNED PREFERRED STOCK OPTIONS OWNED
------------------- ------------- ------------- ---------------- ---------------- --------------
Warburg, Xxxxxx Investors,
L.P............................ 4,647,212 2,417,112 400 2,091,503
NUMBER OF
SHARES OWNED
ON EXERCISE OF TOTAL OWNED
NAME OF SHAREHOLDER OPTIONS SHARES
------------------- -------------- ------------
Warburg, Xxxxxx Investors,
L.P............................ 9,155,827
SCHEDULE 2
WARBURG, XXXXXX INVESTORS, L.P.
OWNERSHIP HISTORY/TRANSACTION SUMMARY
DATE SHARE AMOUNTS DESCRIPTION COMMON SHARES
--------------------- -------------- ------------------------------------------------------------ ---------------
07/31/1992 116,300 9% Series A Cumulative Preferred Stock
07/31/1992 3,678,374 Class A Common 3,678,374
11/07/1996 2,881,446 In Conjunction with Alysis' IPO at $6.00 per share,WPI 2,881,446
converted its preferred shs & accrued dividends into
2,881,446 shs of Common Stock
9/3/1998 450,000 Purchased from C. Ravi 450,000
5/15/1999 24,774 Purchase from X. Xxxxxxx 24,774
7/29/1999 400 Series B Convertible Preferred stock (convertible into
2,091,503 Common Shares)
10/1/1999 29,730 Purchase from X. Xxxxx 29,730
--------- ------------------------------------------------------------ ---------
TOTAL 7,064,324
DATE COMMON SHARE EQUIVALENTS
--------------------- -------------------------
07/31/1992
07/31/1992
11/07/1996
9/3/1998
5/15/1999
7/29/1999 2,091,503
10/1/1999
---------
TOTAL 2,091,503
