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EXHIBIT 2.2
PARENT VOTING AGREEMENT
THIS VOTING AGREEMENT (this "AGREEMENT") is made and entered into as of
May __, 2001, among [Jupiter], a Georgia corporation ("COMPANY"), and the
undersigned stockholder and/or option holder (the "STOCKHOLDER") of [Saturn], a
Delaware corporation ("PARENT").
RECITALS
A. Company, Merger Sub (as defined below) and Parent have entered
into an Agreement and Plan of Merger and Reorganization (the "MERGER
AGREEMENT"), which provides for the merger (the "MERGER") of a wholly-owned
subsidiary of Parent ("MERGER SUB") with and into the Company. Pursuant to the
Merger, all outstanding capital stock of the Company shall be converted into the
right to receive common stock of Parent, as set forth in the Merger Agreement;
and
B. Stockholder is the 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 capital stock of Parent and shares subject
to outstanding options and warrants as is indicated on the signature page of
this Agreement.
NOW, THEREFORE, intending to be legally bound, the parties hereto agree
as follows:
1. Certain Definitions. Capitalized terms not defined herein
shall have the meanings ascribed to them in the Merger Agreement. For purposes
of this Agreement:
(a) "EXPIRATION DATE" shall mean the earlier to occur of
(i) such date and time as the Merger Agreement shall have been terminated
pursuant to Article VII thereof, (ii) such date and time as the Merger shall
become effective in accordance with the terms and provisions of the Merger
Agreement or (iii) the date the Board of Directors of Parent withdraws its
recommendation in favor of the Merger.
(b) "PERSON" shall mean any (i) individual, (ii)
corporation, limited liability company, partnership or other entity, or (iii)
governmental authority.
(c) "SHARES" shall mean: (i) all securities of the Parent
(including all shares of Parent Common Stock and all options, warrants and other
rights to acquire shares of Parent Common Stock) beneficially owned by
Stockholder as of the date of this Agreement; and (ii) all additional securities
of Parent (including all additional shares of Parent Common Stock and all
additional options, warrants and other rights to acquire shares of Parent Common
Stock) of which Stockholder acquires beneficial ownership during the period from
the date of this Agreement through the Expiration Date.
(d) "TRANSFER." A Person shall be deemed to have effected
a "TRANSFER" of a security if such person directly or indirectly: (i) sells,
pledges, encumbers, grants an option with respect to, transfers or disposes of
such security or any interest in such security; or (ii) enters into an
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agreement or commitment providing for the sale of, pledge of, encumbrance of,
grant of an option with respect to, transfer of or disposition of such security
or any interest therein.
2. Transfer of Shares.
(a) Transferee of Shares to be Bound by this Agreement.
Stockholder agrees that, during the period from the date of this Agreement
through the Expiration Date, except as may be required by court order or
operation of law, Stockholder shall not cause or permit any Transfer of any of
the Shares to be effected unless each Person to which any of such Shares or any
interest in any of such Shares is or may be transferred shall have (i) executed
a counterpart of this Voting Agreement and a proxy in the form attached hereto
and (ii) agreed to hold such Shares or interest in such Shares subject to all of
the terms and provisions of this Agreement.
(b) Transfer of Voting Rights. Stockholder agrees that,
during the period from the date of this Agreement through the Expiration Date,
Stockholder shall not deposit (or permit the deposit of) any Shares in a voting
trust or grant any proxy or enter into any voting agreement or similar agreement
in contravention of the obligations of Stockholder under this Agreement with
respect to any of the Shares.
3. Agreement to Vote Shares. At every meeting of the stockholders
of Parent called, and at every adjournment thereof, and on every action or
approval by written consent of the stockholders of Parent, Stockholder (in his
or her capacity as such) shall cause the Shares to be voted (to the extent such
Shares have voting rights and are entitled to vote thereon) (i) in favor of the
Share Issuance, (ii) in favor of any matter that could reasonably be expected to
facilitate the Share Issuance, and (iii) against any matter that could
reasonably be expected to prevent the Merger. Notwithstanding the foregoing, and
notwithstanding any other provision of this Agreement, nothing in this Agreement
shall limit or restrict Stockholder from acting in Stockholder's capacity as a
director or officer of Parent (it being understood that this Agreement shall
apply to Stockholder solely in Stockholder's capacity as a stockholder of
Parent) or voting in Stockholder's sole discretion on any matter other than
those matters referred to in the foregoing clauses (i), (ii) and (iii) of this
Section 3.
4. Irrevocable Proxy. Concurrently with the execution of this
Agreement, Stockholder agrees to deliver to Company a proxy in the form attached
hereto as Exhibit A (the "PROXY"), which shall be irrevocable to the fullest
extent permissible by law, with respect to the Shares.
5. Representations and Warranties of the Stockholder. Stockholder
(i) is the beneficial owner of the shares of Parent Common Stock and the options
and warrants to purchase shares of Common Stock of Parent indicated on the final
page of this Agreement, free and clear of any liens, claims, options, rights of
first refusal, co-sale rights, charges or other encumbrances that, in each case,
would deprive Company of the benefits of this Agreement; (ii) does not
beneficially own any securities of Parent other than the shares of Parent Common
Stock and options and warrants to purchase shares of Common Stock of Parent
indicated on the final page of this Agreement; and (iii) has full power and
authority to make, enter into and carry out the terms of this Agreement and the
Proxy.
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6. Legending of Shares. If so requested by Company, Stockholder
agrees that the Shares shall bear a legend stating that they are subject to this
Agreement and to an irrevocable proxy. Subject to the terms of Section 2 hereof,
Stockholder agrees that Stockholder shall not Transfer the Shares without first
having the aforementioned legend affixed to the certificates representing the
Shares.
7. Termination. This Agreement shall terminate and shall have no
further force or effect as of the Expiration Date.
8. Miscellaneous.
(a) 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.
(b) Binding Effect and Assignment. This Agreement and all
of the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, but,
except as otherwise specifically provided herein, neither this Agreement nor any
of the rights, interests or obligations of the parties hereto may be assigned by
either of the parties without prior written consent of the other.
(c) 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.
(d) Specific Performance; Injunctive Relief. The parties
hereto acknowledge that Parent shall be irreparably harmed and that there shall
be no adequate remedy at law for a violation of any of the covenants or
agreements of Stockholder set forth herein. Therefore, it is agreed that, in
addition to any other remedies that may be available to Company upon any such
violation, Company shall have the right to enforce such covenants and agreements
by specific performance, injunctive relief or by any other means available to
Company at law or in equity.
(e) Notices. All notices and other communications
pursuant to this Agreement shall be in writing and deemed to be sufficient if
contained in a written instrument and shall be deemed given if delivered
personally, telecopied, sent by nationally-recognized overnight courier or
mailed by registered or certified mail (return receipt requested), postage
prepaid, to the parties at the following address (or at such other address for a
party as shall be specified by like notice):
If to Company: [Jupiter]
0000 Xxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxxx 00000
Attention:
Telecopy No.: (000) 000-0000
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With a copy to: [ ]
If to Stockholder: To the address for notice set forth
on the signature page hereof.
(f) Governing Law. This Agreement shall be governed by
the laws of the State of Delaware, without giving effect to the conflicts of law
principles thereof.
(g) Entire Agreement. This Agreement and the Proxy
contain the entire understanding of the parties in respect of the subject matter
hereof, and supersede all prior negotiations and understandings between the
parties with respect to such subject matter.
(h) Effect of Headings. The section headings are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
(i) 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.
(j) Nothing in this Agreement shall be construed to
require Stockholder to exercise any option, warrant or other right to acquire
Parent Common Stock, and nothing in this Agreement shall be construed to
prohibit Stockholder from (i) engaging in customary sales of Shares consistent
with Stockholder's past sales (but in no event aggregating more than 15% of
Stockholder's total Shares), or (ii) engaging in a net exercise of any option,
warrant or other right to acquire Parent Common Stock (if the contractual terms
of such option, warrant, or other right currently permit such a net exercise).
[Remainder Of This Page Left Blank Intentionally]
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IN WITNESS WHEREOF, the parties have caused this Voting Agreement to be
duly executed on the day and year first above written.
COMPANY STOCKHOLDER
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Signature Signature
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Print Name Print Name
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Print Title Print Title
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Print Address
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Print Telephone
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Print Facsimile No.
Shares beneficially owned:
_____shares of Parent Common Stock
_____shares of Parent Common Stock issuable
upon exercise of outstanding options or
warrants
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[SIGNATURE PAGE TO PARENT VOTING AGREEMENT]
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IRREVOCABLE PROXY
The undersigned stockholder of [Saturn], a Delaware corporation (the
"PARENT"), hereby irrevocably (to the fullest extent permitted by law) appoints
the directors on the Board of Directors of [Jupiter], a Georgia corporation
("COMPANY"), and each of them, as the sole and exclusive attorneys and proxies
of the undersigned, with full power of substitution and resubstitution, to vote
and exercise all voting and related rights (to the full extent that the
undersigned is entitled to do so) with respect to all of the shares of capital
stock of Parent that now are or hereafter may be beneficially owned by the
undersigned, and any and all other shares or securities of Parent issued or
issuable in respect thereof on or after the date hereof (collectively, the
"SHARES") in accordance with the terms of this Proxy. The Shares beneficially
owned by the undersigned stockholder of Parent as of the date of this Proxy are
listed on the final page of this Proxy. Upon the undersigned's execution of this
Proxy, any and all prior proxies given by the undersigned with respect to any
Shares are hereby revoked and the undersigned agrees not to grant any subsequent
proxies with respect to the Shares on any matters covered hereby until after the
Expiration Date (as defined below).
This Proxy is irrevocable (to the fullest extent permitted by law), is
coupled with an interest and is granted pursuant to that certain Voting
Agreement of even date herewith by and among Company and the undersigned
stockholder (the "VOTING AGREEMENT"), and is granted in consideration of Company
entering into that certain Agreement and Plan of Merger and Reorganization (the
"MERGER AGREEMENT"), among Parent, Jupiter Acquisition Corp, a Georgia
corporation and a wholly-owned subsidiary of Parent ("MERGER SUB"), and the
Company. The Merger Agreement provides for the merger of Merger Sub with and
into the Company in accordance with its terms (the "MERGER"). As used herein,
the term "EXPIRATION DATE" shall mean the earlier to occur of (i) such date and
time as the Merger Agreement shall have been validly terminated pursuant to
Article VII thereof, (ii) such date and time as the Merger shall become
effective in accordance with the terms and provisions of the Merger Agreement or
(iii) the date the Board of Directors of Parent withdraws its recommendation in
favor of the Merger.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting, consent and similar rights of the undersigned with respect
to the Shares (including, without limitation, the power to execute and deliver
written consents) at every annual, special or adjourned meeting of stockholders
of Parent and in every written consent in lieu of such meeting (i) in favor of
the Share Issuance (as defined in the Merger Agreement), (ii) in favor of any
matter that reasonably be expected to facilitate the Stock Issuance or the
Merger and (iii) against any matter that could reasonably be expected to prevent
the Merger.
The attorneys and proxies named above may not exercise this Proxy on
any other matter except as provided above. The undersigned stockholder may vote,
and grant proxies with respect to, the Shares on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
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This Proxy is irrevocable (to the fullest extent permitted by law).
This Proxy shall terminate, and be of no further force and effect, automatically
upon the Expiration Date.
Dated: May __, 2001
Signature of Stockholder: ______________________________
Print Name of Stockholder: _____________________________
Shares beneficially owned:
____ shares of Parent Common Stock
____ shares of the Parent Common Stock
issuable upon exercise of outstanding
options or warrants
[SIGNATURE PAGE TO IRREVOCABLE PROXY]
