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EXHIBIT 9.1
VOTING AGREEMENT
This Voting Agreement ("Agreement") is made and entered into as of May
7, 1998, between Peregrine Systems, Inc., a Delaware corporation ("Parent"),
and the undersigned shareholder ("Shareholder") of Innovative Tech Systems,
Inc., an Illinois corporation (the "Company").
RECITALS
A. Concurrently with the execution of this Agreement, Parent,
Company and Xxxxx Acquisition Corporation, a Delaware corporation and a wholly
owned subsidiary of Parent ("Merger Sub"), have entered into an Agreement and
Plan of Reorganization dated as of May 7, 1998 (the "Merger Agreement") which
provides for the merger (the "Merger") of Merger Sub with and into the Company.
Pursuant to the Merger, shares of Common Stock of the Company will be converted
into Common Stock of Parent on the basis described in the Merger Agreement.
B. The Shareholder 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
of the Company as is indicated on the final page of this Agreement (the
"Shares").
C. Parent desires the Shareholder to agree, and the Shareholder
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 hereafter and
prior to the Expiration Date (as defined in Section 1.1 below, except as
otherwise permitted hereby), and to vote the Shares and any other such shares
of capital stock of the Company so as to facilitate consummation of the Merger.
NOW, THEREFORE, in consideration of the parties agree as follows:
1. Agreement to Retain Shares.
1.1 Transfer and Encumbrance. Shareholder agrees not to
transfer (except as may be specifically required by court order), sell,
exchange, pledge or otherwise dispose of or encumber any of the Shares or any
New Shares as defined in Section 1.2 below, or to make any offer or agreement
relating thereto, at any time prior to the Expiration Date. As used herein,
the term "Expiration Date" shall mean the earlier to occur of (i) such date and
time as the Merger shall become effective in accordance with the terms and
provisions of the Merger Agreement and (ii) such date as the Merger Agreement
shall be terminated pursuant to Article VII thereof.
1.2 Additional Purchases. Shareholder agrees that any
shares of capital stock of the Company that Shareholder purchases or with
respect to which Shareholder otherwise acquires beneficial ownership (as such
term is defined in Rule 13d-3 under the Exchange Act) after the
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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
shareholders of the Company called with respect to any of the following, and at
every adjournment thereof, and on every action or approval by written consent
of the Shareholders of the Company with respect to any of the following,
Shareholder shall vote the Shares and any New Shares: (i) in favor of approval
of the Merger Agreement and the Merger and any matter that could reasonably be
expected to facilitate the Merger; and (ii) against approval of any proposal
made in opposition to or competition with consummation of the Merger and
against any merger, consolidation, sale of assets, reorganization or
recapitalization, with any party other than with Parent and its affiliates and
against any liquidation or winding up of the Company (each of the foregoing is
hereinafter referred to as an "Opposing Proposal"). Shareholder agrees not to
take any actions contrary to Shareholder's obligations under this Agreement.
3. Irrevocable Proxy. Concurrently with the execution of this
Agreement, Shareholder agrees to deliver to Parent a proxy in the form attached
hereto as Exhibit A (the "Proxy"), which shall be irrevocable, with the total
number of shares of capital stock of the Company beneficially owned (as such
term is defined in Rule 13d-3 under the Exchange Act) by Shareholder set forth
therein.
4. Representations, Warranties and Covenants of the Shareholder.
Shareholder hereby represents, warrants and covenants to Parent as follows:
4.1 Ownership of Shares. Shareholder (i) is the
beneficial owner of the Shares, which at the date hereof and at all times up
until the Expiration Date will be free and clear of any liens, claims, options,
charges or other encumbrances; (ii) does not beneficially own any shares of
capital stock of the Company other than the Shares (excluding shares as to which
Shareholder currently disclaims beneficial ownership in accordance with
applicable law); and (iii) has full power and authority to make, enter into and
carry out the terms of this Agreement and the Proxy.
4.2 No Proxy Solicitations. Shareholder will not, and
will not permit any entity under Shareholder's control to: (i) 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 Opposing 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; (ii) initiate a Shareholders' vote or action by consent of
the Company Shareholders with respect to an Opposing Proposal; or (iii) 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 with respect to an
Opposing Proposal.
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5. Additional Documents. Shareholder hereby covenants and agrees
to execute and deliver any additional documents necessary or desirable, in the
reasonable opinion of Parent or Shareholder, as the case may be, to carry out
the intent of this Agreement.
6. Consent and Waiver. Shareholder hereby gives any consents or
waivers that are reasonably required for the consummation of the Merger under
the terms of any agreements to which Shareholder is a party or pursuant to any
rights Shareholder may have.
7. Termination. This Agreement and the Proxy delivered in
connection herewith shall terminate and shall have no further force or effect
as of the Expiration Date.
8. Miscellaneous.
8.1 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, void or unenforceable, then the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
8.2 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, either this Agreement nor any
of the rights, interests or obligations of the parties hereto may be assigned
by either of the parties without prior written consent of the other.
8.3 Amendments and Modification. 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.
8.4 Specific Performance; Injunctive Relief. The parties
hereto acknowledge that Parent will be irreparably harmed and that there will
be no adequate remedy at law for a violation of any of the covenants or
agreement of Shareholder set forth herein. Therefore, it is agreed that, in
addition to any other remedies that may be available to Parent upon any such
violation, Parent shall have the right to enforce such covenants and agreements
by specific performance, injunctive relief or by any other means available to
Parent at law or in equity.
8.5 Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and sufficient if delivered
in person, by cable, telegram or telex, or sent by mail (registered or
certified mail, postage prepaid, return receipt requested) or overnight
courier (prepaid) to the respective parties as follows:
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If to Parent: Peregrine Systems, Inc.
00000 Xxxx Xxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: General Counsel
With a copy to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
If to the Shareholder:
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With a copy to: Xxxxxx & Xxxxxxx
Xxx Xxxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxx X. Xxxxx, Esq.
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
only be effective upon receipt.
8.6 Governing Law. This Agreement shall be governed by,
and construed and enforced in accordance with, the internal laws of the State
of California.
8.7 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.
8.8 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.
8.9 Effect of Headings. The section headings herein are
for convenience only and shall not affect the construction of interpretation of
this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Voting Agreement to
be duly executed on the date and year first above written.
PEREGRINE SYSTEMS, INC.
By:
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Xxxxxxx X. Xxxxxxx
President and Chief Executive Officer
SHAREHOLDER:
By:
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Shareholder's Address for Notice:
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Shares beneficially owned:
shares of Common Stock
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EXHIBIT A
IRREVOCABLE PROXY
The undersigned Shareholder of Innovative Tech Systems, Inc., an
Illinois corporation ("Company"), hereby irrevocably appoints the directors on
the Board of Directors of Peregrine Systems, Inc., a Delaware corporation
("Parent"), and each of them, as the sole and exclusive attorneys and proxies
of the undersigned, with full power of substitution and resubstitution, to the
full extent of the undersigned's rights with respect to the shares of capital
stock of the Company beneficially owned by the undersigned, which shares are
listed on the final page of this Proxy (the "Shares"), and any and all other
shares or securities issued or issuable in respect thereof on or after the date
hereof, until such time as that certain Agreement and Plan of Reorganization
dated as of May 7, 1998 (the "Merger Agreement"), among Parent, Xxxxx
Acquisition Corporation, a Delaware corporation and a wholly-owned subsidiary
of Parent ("Merger Sub"), and Company, shall be terminated in accordance with
its terms or the Merger (as defined in the Merger Agreement) is effective.
Upon the execution hereof, all prior proxies given by the undersigned with
respect to the Shares and any and all other shares or securities issued or
issuable in respect thereof on or after the date hereof are hereby revoked and
no subsequent proxies will be given.
This proxy is irrevocable, is granted pursuant to the Voting Agreement
dated as of May 7, 1998 between Parent and the undersigned Shareholder (the
"Voting Agreement"), and is granted in consideration of Parent entering into
the Merger Agreement. The attorneys and proxies named above will be empowered
at any time prior to termination of the Merger Agreement to exercise all voting
and other rights (including, without limitation, the power to execute and
deliver written consents with respect to the Shares) of the undersigned at
every annual, special or adjourned meeting of Company Shareholders, and in
every written consent in lieu of such a meeting, or otherwise, in favor of
approval of the Merger and the Merger Agreement and any matter that could
reasonably be expected to facilitate the Merger, and against any proposal made
in opposition to or competition with the consummation of the Merger and against
any merger, consolidation, sale of assets, reorganization or recapitalization
of the Company with any party other than Parent and its affiliates and against
any liquidation or winding up of the Company.
The attorneys and proxies named above may only exercise this
proxy to vote the Shares subject hereto at any time prior to termination of the
Merger Agreement at every annual, special or adjourned meeting of the
Shareholders of Company and in every written consent in lieu of such meeting,
in favor of approval of the Merger and the Merger Agreement and any matter that
could reasonably be expected to facilitate the Merger, and against any merger,
consolidation, sale of assets, reorganization or recapitalization of Company
with any party other than Parent and its affiliates, and against any
liquidation or winding up of the Company, and may not exercise this proxy on
any other matter. The undersigned Shareholder may vote the Shares on all other
matters.
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Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
This proxy is irrevocable.
Dated: May 7, 1998
Signature of Shareholder:
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Print Name of Shareholder:
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Shares beneficially owned:
shares of Common Stock
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***PROXY***
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