VOTING AGREEMENT
THIS VOTING AGREEMENT, is made and entered into as of this 31st day of
July, 2001 (the "AGREEMENT"), by and among Endorex Corporation ("PARENT");
Roadrunner Acquisition, Inc., a wholly owned subsidiary of Parent ("MERGER
SUB"); Corporate Technology Development, Inc. (the "COMPANY"); TVM Techno
Venture Management III GmbH & Co. Medical Ventures; Nomura Bank (Switzerland)
Ltd.; Xxxx Capital Partners V, LP; Imprimus Investors, LLC; Bristol Xxxxxxxxxxx
Investments, LP; Paramount Capital Drug Development Holdings LLC; Xxxxx X.
Xxxxxx; Xxxxx Xxxxx; Xxxxx Xxxx, Ph.D.; Guy Rico; Xxxxxxxx Xxxxxxxxxxxxx; and
Xxxxxxx X. Xxxxxxxxx, M.D. (each a "STOCKHOLDER" and collectively, the
"STOCKHOLDERS").
RECITALS
A. Contemporaneously with the execution and delivery of this Agreement,
Parent, Merger Sub and the Company are entering into an Agreement and Plan of
Merger and Reorganization, dated as of the date hereof (the "MERGER AGREEMENT"),
which provides for, upon the terms and subject to the conditions set forth
therein, a business combination between Parent and the Company by means of a
merger of Merger Sub with and into the Company (the "MERGER").
B. As of the date hereof, each Stockholder beneficially owns (as defined
in Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended)
the number of shares of Common Stock, par value $.001 per share, or Series A
Convertible Preferred Stock, par value $.001 per share, of the Company set forth
opposite such Stockholder's name on SCHEDULE I hereto (all such shares so owned
and which may hereafter be acquired by such Stockholder prior to the termination
of this Agreement, whether upon the exercise of options or warrants and/or
conversion of notes or preferred stock, or by any other means of purchase,
dividend, distribution or otherwise, being referred to herein as such
Stockholder's "SHARES").
C. As a condition to their willingness to enter into the Merger
Agreement, Parent and Merger Sub have requested that the Stockholders enter into
this Agreement.
D. In order to induce Parent and Merger Sub to enter into the Merger
Agreement, each of the Stockholders are willing to enter into this Agreement and
to grant Parent an irrevocable proxy to vote the Shares of such Stockholder in
favor of the adoption of the Merger Agreement and the approval of the terms
thereof and each of the other transactions contemplated by the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:
ARTICLE I
VOTING AGREEMENT
1.1 VOTING OF SHARES. From the date hereof until the termination of this
Agreement, at any meeting of the stockholders of the Company, however called,
and in any action by consent of the stockholders of the Company, each
Stockholder shall vote such Stockholder's Shares
(a) in favor of the Merger, the Merger Agreement and all other
transactions contemplated thereby (as amended from time to time pursuant to
the terms thereof), including, but not limited to, the actions necessary to
effectuate the requirements of Section 5.17 of the Merger Agreement,
(b) against any Competing Proposal or any negotiations or discussions
with respect to a Competing Proposal and against any proposal for action or
agreement that would result in a breach of any covenant, representation or
warranty or any other obligation or agreement of the Company under the
Merger Agreement, any change in the directors of the Company, any change in
the present capitalization of the Company (other than such changes
necessary to effectuate the requirements of Section 5.17 of the Merger
Agreement) or any amendment to the Company's Certificate of Incorporation,
as amended, or Bylaws, which in the case of each of the matters referred to
in this clause (b) could reasonably be expected to impede, interfere with,
delay, postpone or materially adversely affect the transactions
contemplated by the Merger Agreement or the likelihood of such transactions
being consummated, and
(c) in favor of any other matter necessary for consummation of the
transactions contemplated by the Merger Agreement and related agreements
which is considered at any such meeting of stockholders or in such consent,
and in connection therewith shall execute any documents which are necessary in
order to effectuate the foregoing, including the ability for Parent or its
nominees to vote such Shares directly.
1.2 IRREVOCABLE PROXY. Each Stockholder hereby agrees to deliver to Parent
a duly executed proxy in the form attached hereto as EXHIBIT A concurrently with
the execution and delivery of this Agreement (the "PROXY"), such Proxy to cover
the Shares in respect of which Stockholder is entitled to vote at each meeting
of the stockholders of the Company (including, without limitation, each written
consent in lieu of a meeting) in favor of the Merger and the adoption and
approval of the Merger Agreement, as amended from time to time pursuant to the
terms thereof, and all transactions contemplated thereby, including, but not
limited, to the actions necessary to effectuate the requirements of Section 5.17
of the Merger Agreement. Each Stockholder hereby revokes any and all prior
proxies or powers of attorney given by such Stockholder with respect to the
Shares.
1.3 NO PROXIES FOR OR TRANSFERS OF STOCKHOLDER SHARES. Except as
contemplated by the terms of this Agreement, from the date hereof until the
termination of this Agreement, each Stockholder hereby agrees that such
Stockholder shall not, without the prior written consent of Parent, which may be
withheld in the sole discretion of Parent, directly or indirectly, (i) grant
2
any proxies or enter into any voting trust or other agreement, arrangement or
understanding with respect to the voting of any such Stockholder's Shares or
(ii) sell, assign, transfer, encumber, pledge or otherwise dispose of, or enter
into any contract, option or other agreement, arrangement or understanding with
respect to the direct or indirect sale, assignment, transfer, encumbrance,
pledge or other disposition of, any of such Stockholder's Shares. Each
Stockholder hereby agrees such Stockholder shall not seek or solicit any such
sale, assignment, transfer, encumbrance, pledge or other disposition or any such
contract, option or other agreement, arrangement or understanding and agrees to
notify Parent promptly (but in any event, within 24 hours), and to provide all
details requested by Parent, if such Stockholder is approached or solicited,
directly or indirectly, by any person with respect to any of the foregoing.
Notwithstanding any other provision of this Section 1.3, each Stockholder may
sell or otherwise assign, with or without consideration, an unlimited amount of
such Stockholder's Shares to any spouse or member of his immediate family, or to
a custodian, trustee (including a trustee of a voting trust), executor or other
fiduciary for the account of his spouse or members of his immediate family, or
to a trust for himself, or to a charitable remainder trust, or any affiliate,
member or limited or general partner of such Stockholder, or to any entity that
is wholly owned by members of such Stockholder's immediate family; provided that
each such transferee or assignee, prior to the completion of the sale, transfer
or assignment shall have executed and delivered to Parent documents assuming the
obligations of such Stockholder under this Agreement with respect to the
transferred securities, such documents to be satisfactory to Parent in its sole
discretion.
1.4 STOP TRANSFER. During the term of this Agreement, no Stockholder shall
request that the Company register the transfer (book-entry or otherwise) of any
certificate or uncertificated interest representing any of such Stockholder's
Shares, unless such transfer is made in compliance with this Agreement.
1.5 NOTIFICATION. If any Stockholder becomes aware of a Competing Proposal
or if any Stockholder becomes aware that a request for nonpublic information
relating to the Company or any of its Subsidiaries has been made by any person
or entity that has made a Competing Proposal or has advised such Stockholder or
the Company that it may be considering making a Competing Proposal, such
Stockholder shall within 24 hours notify Parent of those material details of
such Competing Proposal or request that are known to such Stockholder (including
the identity of the person or entity making such Competing Proposal, the terms
thereof and the information requested thereby) and shall within 24 hours provide
Parent with a copy of any Competing Proposal or request that is made in writing
and copies of all correspondence relating thereto, to the extent those items are
available to such Stockholder. Thereafter such Stockholder shall keep Parent
fully apprised on a current basis of the status of any such Competing Proposal
and of any modifications to the terms thereof, to the extent such information is
available to such Stockholder. Each Stockholder hereby agrees to immediately
cease and cause to be terminated all existing discussions or negotiations with
any parties other than Parent that it has conducted heretofore with respect to
any Competing Proposal.
1.6 WAIVER OF APPRAISAL RIGHTS. Each Stockholder hereby waives any and all
rights of appraisal for such Stockholder's Shares in connection with the Merger
or rights to dissent from the Merger.
3
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS
Each Stockholder hereby represents and warrants to Parent and Merger Sub as
follows:
2.1 DUE AUTHORIZATION, ETC. Each Stockholder that is not a natural person
has all requisite power and authority to execute, deliver and perform this
Agreement, to appoint Parent as its proxy and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this Agreement,
the appointment of Parent as its proxy and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary action on the
part of each Stockholder that is not a natural person. Each Stockholder that is
a natural person has full legal right, power and authority to execute and
deliver this Agreement, to perform their obligations hereunder and to consummate
the transactions contemplated hereby. This Agreement has been duly executed and
delivered by or on behalf of each Stockholder and constitutes a legal, valid and
binding obligation of each Stockholder, enforceable against each Stockholder in
accordance with its terms, except that such enforceability may be limited by
bankruptcy, insolvency, moratorium or other similar laws affecting or relating
to creditors' rights generally, and is subject to general principles of equity.
There is no beneficiary or holder of a voting trust certificate or other
interest of any trust of which such Stockholder is trustee whose consent is
required for the execution and delivery of this Agreement or the consummation by
such Stockholder of the transactions contemplated hereby.
2.2 NO CONFLICTS; REQUIRED FILINGS AND CONSENTS.
(a) The execution and delivery of this Agreement by such Stockholder
does not, and the performance of this Agreement by such Stockholder will
not, (i) if such Stockholder is not a natural person, conflict with or
result in any breach of any provision of the respective certificate of
incorporation, bylaws or other similar documents relating to such
Stockholder, (ii) conflict with or violate any law applicable to such
Stockholder or by which such Stockholder or any of such Stockholder's
properties is bound or affected or (iii) result in any material breach of
or constitute a material default (or an event that with notice or lapse of
time or both would become a material default) under, or give to others any
rights of termination, acceleration or cancellation of, or result in the
creation of a lien or encumbrance on any assets of such Stockholder,
including, without limitation, such Stockholder's Shares, pursuant to, any
note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which such
Stockholder is a party or by which such Stockholder or any of such
Stockholder's assets is bound or affected.
(b) The execution and delivery of this Agreement by such Stockholder
does not, and the performance of this Agreement by such Stockholder will
not, require any consent, approval, authorization or permit of, or filing
with or notification to, any governmental or regulatory authority (other
than any necessary filing under the Exchange Act), domestic or foreign,
except where the failure to obtain such consents, approvals, authorizations
or permits, or to make such filings or notifications, would not prevent or
4
delay the performance by such Stockholder of such Stockholder's obligations
under this Agreement.
2.3 VALID TITLE. Such Stockholder is the sole, true and lawful beneficial
owner of such Stockholder's Shares with no restrictions on such Stockholder's
voting rights or rights of disposition pertaining thereto. None of such
Stockholder's Shares is subject to any voting trust or other agreement or
arrangement with respect to the voting of such Shares. None of such
Stockholder's Shares is subject to any adverse claims, options, liens, charges,
encumbrances, security interests or other restrictions on transfer.
2.4 TOTAL SHARES. Each Stockholder is the record and beneficial owner of
the number of Shares set forth next to such Stockholder's name on SCHEDULE I
hereto. Except as set forth on SCHEDULE I hereto, neither such Stockholder nor
any beneficial owner or owners of such Stockholder's Shares own any options or
warrants to purchase or rights to subscribe for or otherwise acquire any
securities of the Company. Except as set forth on SCHEDULE I hereto, each
Stockholder has sole voting power and sole power to issue instructions with
respect to the matters set forth in this Agreement, sole power of disposition,
sole power of conversion and sole power to agree to all of the matters set forth
in this Agreement, in each case with respect to all of the Shares beneficially
owned by such Stockholder with no limitations, qualifications or restrictions on
such rights, subject to applicable securities laws and the terms of this
Agreement.
2.5 NO FINDER'S FEES. 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 Stockholder. Such
Stockholder, on behalf of itself and its affiliates, hereby acknowledges that it
is not entitled to receive any broker's, finder's, financial advisor's or other
similar fee or commission in connection with the transactions contemplated
hereby or by the Merger Agreement.
ARTICLE III
MISCELLANEOUS
3.1 DEFINITIONS. Capitalized terms used but not otherwise defined in this
Agreement have the respective meanings ascribed to such terms in the Merger
Agreement.
3.2 TERMINATION. This Agreement and each Proxy granted pursuant to Article
I shall terminate automatically and without any action of any of the parties
hereto and be of no further force and effect upon the earlier to occur of: (i)
the written mutual consent of the parties hereto and (ii) the Expiration Date
(as defined below). No such termination of this Agreement shall relieve any
party hereto from any liability for any breach of this Agreement prior to
termination or from any obligation pursuant to a notice delivered on or before
the date of such termination. As used herein, the "EXPIRATION DATE" shall mean
the earlier to occur of (i) the Effective Time of the Merger and (ii) the
termination of the Merger Agreement according to its terms.
3.3 FURTHER ASSURANCE. From time to time, at the request of another party
hereto and without consideration, each party hereto shall execute and deliver
such additional documents and
5
take all such further action as may be necessary or desirable to consummate and
make effective, in the most expeditious manner practicable, the transactions
contemplated by this Agreement.
3.4 CERTAIN EVENTS; SUCCESSORS. Each Stockholder agrees that this
Agreement and such Stockholder's obligations hereunder shall attach to such
Stockholder's Shares and shall be binding upon any person or entity to which
legal or beneficial ownership of such Shares shall pass, whether by operation of
law or otherwise, including, without limitation, such Stockholder's heirs,
executors, guardians, administrators, or successors. Notwithstanding any
transfer of Shares, the transferor shall remain liable for the performance of
all its obligations under this Agreement.
3.5 NO WAIVER. 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, or any custom or practice of the parties
at variance with the terms hereof, shall not constitute a waiver by such party
of its right to exercise any such or other right, power or remedy or to demand
such compliance.
3.6 NOTICE. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, the day of
transmission if a business day or, if not, the next business day thereafter, if
delivered by telecopier (with confirmation of receipt), the next business day if
delivered by an internationally recognized overnight courier service, such as
Federal Express, or the third business day if 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 shall be specified by like notice):
(a) if to Parent or Merger Sub, to:
Endorex Corporation
00000 Xxxxxxx Xxxxx, Xxxxx X
Xxxx Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx
President and CEO
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
Telecopy No.: (000) 000-0000
and
(b) If to a Stockholder, to the address set forth below such
Stockholder's name on SCHEDULE I hereto.
6
3.7 EFFECT OF HEADINGS. The section headings contained in this Agreement
are for convenience only and shall not affect the construction or interpretation
of this Agreement.
3.8 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.
3.9 ENTIRE AGREEMENT. This Agreement and the Proxy contains 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.
3.10 ASSIGNMENT AND BINDING EFFECT. Except as provided in Section 1.3,
Neither this Agreement nor any of the rights, interests or obligations hereunder
shall be assigned by any of the parties (whether by operation of law or
otherwise) without the prior written consent of the other parties, and any such
assignment shall be void, except that Parent may assign, in its sole discretion,
any or all of its rights, interests and obligations hereunder to any direct or
indirect wholly owned subsidiary of Parent or to a successor corporation or
other successor entity in the event of a merger, acquisition, consolidation or
other transfer. 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.
3.11 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of Delaware without reference to such state's
principles of conflicts of laws.
3.12 AMENDMENT AND MODIFICATION. This Agreement may not be modified,
amended, altered or supplemented except by the execution and delivery of a
written agreement executed by the parties hereto.
3.13 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 agreements of
each Stockholder 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 and each Stockholder hereby waives any and all defenses which could
exist in its favor in connection with such enforcement and waives any
requirement for the security or posting of any bond in connection with such
enforcement.
3.14 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which shall
constitute one and the same agreement. This Agreement (or any counterpart
hereof) may be delivered by a party by facsimile, which facsimile shall be
effectual as if the original counterpart had been delivered.
7
IN WITNESS WHEREOF, Parent, Merger Sub, the Company and each of the
Stockholders have caused this Agreement to be executed as of the date first
written above.
PARENT: ENDOREX CORPORATION
------------------------------------
By:
---------------------------------
Title:
------------------------------
MERGER SUB: ROADRUNNER ACQUISITION, INC.
------------------------------------
By:
---------------------------------
Title:
------------------------------
COMPANY: CORPORATE TECHNOLOGY DEVELOPMENT, INC.
------------------------------------
By:
---------------------------------
Title:
------------------------------
STOCKHOLDERS: TVM TECHNO VENTURE MANAGEMENT III
GmbH & CO. Medical Ventures
------------------------------------
By:
---------------------------------
Title:
------------------------------
0
XXXXXX XXXX (XXXXXXXXXXX) LTD.
------------------------------------
By:
---------------------------------
Title:
------------------------------
XXXX CAPITAL PARTNERS V, LP
------------------------------------
By:
---------------------------------
Title:
------------------------------
IMPRIMUS INVESTORS, LLC
------------------------------------
By:
---------------------------------
Title:
------------------------------
BRISTOL XXXXXXXXXXX INVESTMENTS, L.P.
------------------------------------
By:
---------------------------------
Title:
------------------------------
PARAMOUNT CAPITAL DRUG
DEVELOPMENT HOLDINGS LLC
------------------------------------
By:
---------------------------------
Title:
------------------------------
9
------------------------------------
XXXXX X. XXXXXX
------------------------------------
XXXXX XXXXX
------------------------------------
XXXXX XXXX, Ph.D.
------------------------------------
GUY RICO
------------------------------------
XXXXXXXX XXXXXXXXXXXXX
------------------------------------
XXXXXXX X. XXXXXXXXX, M.D.
10
SCHEDULE I
STOCKHOLDERS OF CORPORATE TECHNOLOGY DEVELOPMENT, INC.
Number of
Shares of
Series A
Number of Number of Preferred
Number of Shares of Shares of Stock Percentage of
Shares of Common Stock Series A Underlying Ownership
Common Stock Underlying Preferred Warrants (on a Fully-
Stockholder Name Held Options Held Stock Held Held Diluted Basis) Address
------------------------------ ------------ ------------ ---------- ----------- -------------- -----------------------
TVM Techno Venture -- -- 1,350,000 -- 9.17 000 Xxxx Xxxxxx
Management III GmbH & Co. Suite 1950
Medical Ventures Xxxxxx, XX 00000
Nomura Bank (Switzerland) -- -- 1,200,000 -- 8.16 Kasamaristrasse I
Ltd. Zurich, Switzerland
CH 8021
Xxxx Capital Partners V, LP -- -- 892,400 -- 6.06 00, Xxxxxx xx Xxxxxxx
00000 Xxxxx
Xxxxxx 75008
Imprimus Investors, LLC -- -- 500,000 -- 3.40 000 Xxxx Xxxxxx Xxx.
Xxxxxxxxx, XX 00000
Bristol Xxxxxxxxxxx -- -- 500,000 -- 3.40 1 Rockefeller Plaza
Investments, L.P. Xxxxx 0000
Xxx Xxxx, XX 00000
Paramount Capital Drug 2,515,350 -- -- -- 17.09 000 0xx Xxx. 00xx Xxx
Development Holdings LLC Xxx Xxxx, XX 00000
Xxxxx X. Xxxxxx 564,000 618,180 -- -- 8.03 000 Xxxxx Xxxxx Xxxxx
Xxxxx 0000
Xxxxx Xxxxx, XX 00000
Xxxxx Xxxxx -- 50,000 -- -- 0.34 000 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxx Xxxx, Ph.D. -- 50,000 -- -- 0.34 000 Xx Xxxxxxxx
Xxxxxxx
Xxxxx-Xxxxxxx, Xxxxxx
Xxxxxx H4M-2W4
Guy Rico -- 50,000 -- -- 0.34 00, Xxxxxx xx Xxxxxxx
00000 Xxxxx
Xxxxxx 75008
Xxxxxxxx Xxxxxxxxxxxxx 75,500 477,273 -- -- 3.75 0000 Xxxxxxxx Xxx.
Xxx. 0000
Xxxxx, XX 00000
Xxxxxxx X. Xxxxxxxxx, M.D. -- -- 175,000 303,819 3.29 000 0xx Xxx. 00xx Xxx
Xxx Xxxx, XX 00000
2
EXHIBIT A
IRREVOCABLE PROXY
TO VOTE STOCK OF
CORPORATE TECHNOLOGY DEVELOPMENT, INC.
(A
DELAWARE CORPORATION)
The undersigned stockholder of Corporate Technology Development, Inc., a
Delaware corporation (the "COMPANY"), hereby irrevocably (to the full extent
permitted by the
Delaware General Corporation Law) appoints
Endorex Corporation,
a
Delaware corporation ("PARENT"), or any designee of Parent, 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 the Company that now are or
hereafter may be beneficially owned by the undersigned, and any and all other
shares or securities of the Company issued or issuable in respect thereof on or
after the date hereof (collectively, the "SHARES") in accordance with the terms
of this Irrevocable Proxy. The Shares beneficially owned by the undersigned
stockholder of the Company as of the date of this Irrevocable Proxy are listed
on the final page of this Irrevocable Proxy. Upon the undersigned's execution of
this Irrevocable 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 until after the termination of
the
Voting Agreement (as hereinafter defined).
This Irrevocable Proxy is irrevocable (to the extent provided by the
Delaware General Corporation Law), is coupled with an interest, and is granted
in consideration of Parent entering into that certain
Voting Agreement (the
"
VOTING AGREEMENT"), dated as of ____________ __, 2001, by and among Parent;
Roadrunner Acquisition, Inc., a
Delaware corporation, and a wholly owned
subsidiary of Parent (the "MERGER SUB"); and the Company; the undersigned and
certain stockholders of the Company, and that certain Agreement and Plan of
Merger and Reorganization (the "MERGER AGREEMENT"), dated as of ____________ __,
2001, by and among the Company; Parent; and Merger Sub, which Merger Agreement
provides for the merger of Merger Sub with and into the Company (the "MERGER").
The attorney and proxy named above is hereby authorized and empowered by
the undersigned, at any time prior to the termination of the
Voting Agreement,
to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting and other rights of the undersigned with respect to the
Shares (including, without limitation, the power to execute and deliver written
consents pursuant to the
Delaware General Corporation Law), at every annual,
special or adjourned meeting of the stockholders of the Company and in every
written consent in lieu of such meeting as follows:
(i) in favor of the Merger and the Merger Agreement, and all other
transactions contemplated thereby (as amended from time to time pursuant to
the terms thereof), including, but not limited to, the actions necessary to
effectuate the requirements of Section 5.17 of the Merger Agreement,
(ii) against any Competing Proposal (used herein as defined in the
Merger Agreement) or any negotiations or discussions with respect to a
Competing Proposal and against any proposal for action or agreement that
would result in a breach of any covenant, representation or warranty or any
other obligation or agreement of the Company under the Merger Agreement,
any change in the directors of the Company, any change in the present
capitalization of the Company (other than such changes necessary to
effectuate the requirements of Section 5.17 of the Merger Agreement) or any
amendment to the Company's Certificate of Incorporation, as
amended, or Bylaws, which in the case of each of the matters referred to in
this clause (ii) could reasonably be expected to impede, interfere with,
delay, postpone or materially adversely affect the transactions
contemplated by the Merger Agreement or the likelihood of such transactions
being consummated,
(iii) in favor of any other matter necessary for consummation of the
transactions contemplated by the Merger Agreement and related agreements
which is considered at any such meeting of stockholders or in such consent,
and in connection therewith to execute any documents which are necessary in
order to effectuate the foregoing, including the ability for Parent or its
nominees to vote such Shares directly.
Specifically, but in no way by limitation, this Irrevocable Proxy shall not
be used to waive or amend any material rights or obligations of the undersigned
under the
Voting Agreement, the Merger Agreement or otherwise.
All authority herein conferred shall survive the death or incapacity of the
undersigned and any obligation of the undersigned hereunder shall be binding
upon the heirs, personal representatives, successors and assigns of the
undersigned.
This Irrevocable Proxy is coupled with an interest as aforesaid and is
irrevocable and shall terminate automatically and without any action of any of
the undersigned and be of no further force and effect upon the earlier to occur
of: (i) the written mutual consent of the parties to the
Voting Agreement and
(ii) the Expiration Date (as defined below). As used herein, the "EXPIRATION
DATE" shall mean the earlier to occur of (i) the Effective Time of the Merger
and (ii) the termination of the Merger Agreement according to its terms..
Dated: ____________ __, 2001
By:
-------------------------------
(Signature of Stockholder)
Name:
-----------------------------
(Print Name of Stockholder)
Shares beneficially owned:
_________ shares of Common Stock of Company
_________ shares of Series A Preferred
Stock of Company
_________ shares of Common Stock of Company
underlying options
_________ shares of Series A Preferred
Stock of Company underlying
warrants
2
