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EXHIBIT 99.1(a)
FORM OF VOTING AGREEMENT
VOTING AGREEMENT, dated as of __________ __, 2000 (the "Voting
Agreement"), by and between BSQUARE Corporation. ("BSQUARE") and the undersigned
shareholder and/or optionholder (the "Shareholder") of Mainbrace Corporation, a
California corporation (the "Company").
WHEREAS, BSQUARE, Mainbrace Acquisition, Inc., a Washington corporation
and wholly owned subsidiary of BSQUARE ("Merger Sub") and the Company are
entering into an Agreement and Plan of Merger of even date herewith (the "Merger
Agreement") which provides (subject to the conditions set forth therein) for the
merger of the Company with and into Merger Sub (the "Merger").
WHEREAS, the execution and delivery of this Voting Agreement and the
attached form of proxy is a material condition to BSQUARE's willingness to enter
into the Merger Agreement.
WHEREAS, the Shareholder is the beneficial owner (as defined in Rule
13d-3 under the Securities Exchange Act of 1934, as amended) of such number of
shares of the outstanding capital stock of the Company and shares subject to
outstanding options, warrants and other rights to purchase capital stock of the
Company as indicated on the signature page to this Voting Agreement (such
shares, together with all shares of Common Stock and Preferred Stock of the
Company, if any, subsequently acquired by the Shareholder during the term of
this Voting Agreement, being referred to as the "Shares"); and
WHEREAS, in order to induce BSQUARE to enter into the Merger Agreement,
the Shareholder has agreed to enter into and perform his, her or its obligations
under this Voting Agreement.
NOW, THEREFORE, in consideration of the agreements and covenants
contained herein, the Shareholder and BSQUARE agree as follows:
1. AGREEMENT TO VOTE SHARES
The Shareholder shall vote or cause to be voted, or execute a written
consent with respect to, the Shares (a) in favor of adoption and approval of the
Merger Agreement and all transactions relating thereto or contemplated thereby
at every meeting of the shareholders of the Company at which such matters are
considered and at every adjournment thereof and in connection with every
proposal to take action by written consent with respect thereto, and (b) against
any proposal by a party other than BSQUARE to merge or consolidate with the
Company or to sell all or substantially all the assets of or any sales of equity
interest in the Company at every meeting of the shareholders of the Company at
which such matters are considered and at every adjournment thereof and in
connection with every proposal to take action by written consent with respect
thereto.
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2. NO VOTING TRUSTS
The Shareholder agrees that the Shareholder will not, nor will the
Shareholder permit any entity under the Shareholder's control to, deposit any
Shares in a voting trust or subject the Shares to any agreement, arrangement or
understanding with respect to the voting of the Shares inconsistent with this
Voting Agreement.
3. LIMITATION ON TRANSFER
During the term of this Voting Agreement, the Shareholder shall not
cause or permit any of the Shares to be sold, assigned, transfered, pledged,
encumbered or otherwise disposed of except to BSQUARE.
4. LETTER OF TRANSMITTAL
At the Effective Time (as defined in the Merger Agreement), the
Shareholder shall execute and deliver the Letter of Transmittal in substantially
the form attached hereto as Exhibit A to BSQUARE.
5. WAIVER OF DISSENTER'S RIGHTS
The Shareholder hereby irrevocably and unconditionally waives, and
agrees to cause to be waived and to prevent the exercise of, any rights of
appraisal, any dissenters' rights and any similar rights relating to the Merger
that the Shareholder may have by virtue of the ownership of any Shares.
6. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER
The Shareholder represents and warrants to BSQUARE as follows:
A. AUTHORITY; NO APPROVALS; NO CONFLICTS; NO LIENS
The Shareholder has the necessary power or capacity (as the case may be)
and authority to execute this Voting Agreement, to make the representations,
warranties and covenants herein and to perform the obligations hereunder. This
Voting Agreement is duly executed and is a legal, valid and binding obligation
of the Shareholder, enforceable in accordance with its terms.
The execution, delivery and performance of this Voting Agreement by the
Shareholder will not (a) constitute a violation (with or without the giving of
notice or lapse of time or both) of any provision of any law applicable to the
Shareholder, (b) require any consent, approval or authorization of, or notice
to, any person, corporation, partnership, domestic or foreign governmental
authority or other organization or entity, (c) result in a default under, an
acceleration or termination of, or the creation in any party of the right to
accelerate, terminate, modify or cancel, any material agreement, lease, note or
other restriction, encumbrance, obligation or liability to which the Shareholder
is a party or by which the Shareholder is bound, or (d) result in the creation
or imposition of any lien on any of the Shares of Company Capital Stock held by
the Shareholder.
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B. OWNERSHIP OF SHARES
The Shareholder owns beneficially and of record the Shares set forth on
the signature page to this Voting Agreement free and clear of any lien,
encumbrance, preemptive right, right of first offer or refusal, or other prior
claim, and delivery by the Shareholder to BSQUARE or its appointed agent of the
certificates representing the Shares at the Closing (as defined in the Merger
Agreement) will transfer to Merger Sub good and valid title to the Shares and
Merger Sub will acquire record and beneficial ownership of the Shares, free and
clear of any lien, encumbrance, preemptive right, right of first offer or
refusal, or other prior claim.
C. SOPHISTICATION; ACCREDITATION
The Shareholder, either alone or with the assistance of his, her or its
professional advisor, is a sophisticated investor, able to fend for himself,
herself or itself in the transactions contemplated by the Merger Agreement and
the Operative Documents (as defined in the Merger Agreement), and has such
knowledge and experience in financial and business matters that he, she or it is
capable of evaluating the merits and risks of the prospective investment in
BSQUARE Common Stock.
The BSQUARE Common Stock being acquired by the Shareholder in the Merger
is for investment for his, her or its respective account, not as a nominee or
agent; the undersigned has no present intention of selling, granting any
participation in or otherwise distributing any of the BSQUARE Common Stock in a
manner contrary to the Securities Act of 1933, as amended, or to any applicable
state securities law, nor does the undersigned have any contract, undertaking,
agreement or arrangement with any person or entity to sell, transfer or grant a
participation to such person or entity with respect to any of the BSQUARE Common
Stock to be received in the Merger.
D. CLAIMS AGAINST THE COMPANY
The Shareholder does not have any past, present or contemplated claims
against the Company or any of its officers and directors.
E. RESIDENCY
The Shareholder is a resident of the state of his/her or its address as
set forth on the signature page hereto.
G. ACCURACY OF REPRESENTATIONS
The representations and warranties contained in this Voting Agreement
are accurate in all respects as of the date of this Voting Agreement and will be
accurate in all respects at all times through the Effective Time.
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7. SPECIFIC PERFORMANCE
The Shareholder acknowledges that in the event of any breach of this
Voting Agreement by the Shareholder, BSQUARE would be irreparably harmed, no
adequate remedy at law or in damages would exist and damages would be difficult
to determine. Accordingly, the Shareholder agrees that injunctive relief or
other equitable remedy, in addition to all remedies at law or in damages, is the
appropriate remedy for any such failure and will not oppose the granting of such
relief on the basis that BSQUARE has an adequate remedy at law. The Shareholder
agrees that it will not seek, and agrees to waive any requirement for, the
securing or posting of a bond in connection with the seeking or obtaining of
such equitable relief by BSQUARE. In addition to all other rights or remedies to
which BSQUARE may be entitled, in the event of a default in the Shareholder's
performance of the Shareholder's obligations under this Voting Agreement, the
Shareholder shall be liable to BSQUARE for all litigation costs and attorneys'
fees incurred by BSQUARE in connection with the enforcement of any of its rights
or remedies against the Shareholder.
8. NON-EXCLUSIVITY
The rights and remedies of BSQUARE under this Voting Agreement are not
exclusive of or limited by any other rights or remedies which it may have,
whether at law, in equity, by contract or otherwise, all of which shall be
cumulative (and not alternative).
9. TERM OF VOTING AGREEMENT; TERMINATION
The term of this Voting Agreement shall commence on the date hereof and
terminate upon the earlier to occur of (i) the Effective Time, or (ii) the date
on which the Merger Agreement is terminated in accordance with its terms. Upon
such termination, no party shall have any further obligations or liabilities
hereunder; provided, however, such termination shall not relieve any party from
liability for any breach of this Voting Agreement prior to such termination.
10. ENTIRE VOTING AGREEMENT
This Voting Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior
agreements and understandings between the parties with respect thereto.
11. ASSIGNMENT; BINDING EFFECT
Except as provided herein, neither this Voting Agreement nor any of the
interests or obligations hereunder may be assigned or delegated by the
Shareholder and any attempted or purported assignment or delegation of any of
such interests or obligations shall be void. Subject to the preceding sentence,
this Voting Agreement shall be binding upon the Shareholder and his, her or its
heirs, estate, executors, personal representatives, successors and assigns, and
shall inure to the benefit of BSQUARE and its successors and assigns. This
Voting Agreement shall be binding upon any person or entity to whom any Shares
are transferred.
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12. INDEMNIFICATION
The Shareholder shall hold harmless and indemnify BSQUARE from and
against, and shall compensate and reimburse BSQUARE for, any loss, damage,
claim, liability, fee (including reasonable attorneys' fees), demand, cost or
expense (regardless of whether or not such loss, damage, claim, liability, fee,
demand, cost or expense relates to a third-party claim) that is directly or
indirectly suffered or incurred by BSQUARE, or to which BSQUARE becomes subject,
and that arises directly or indirectly from, or relates directly or indirectly
to, any inaccuracy in or breach of any representation, warranty, covenant or
obligation of the Shareholder contained in this Voting Agreement.
13. EXPENSES
All costs and expenses incurred in connection with the transactions
contemplated by this Voting Agreement shall be paid by the party incurring such
costs and expenses.
14. NOTICES
Any notice or other communication required or permitted to be delivered
to BSQUARE or the Shareholder under this Voting Agreement shall be in writing
and shall be deemed properly delivered, given and received when delivered (by
hand, by registered mail, by courier or express delivery service or by facsimile
confirmation obtained) to the address or facsimile number set forth beneath the
name of such party below (or to such other address or facsimile number as such
party shall have specified in a written notice given to the other party):
IF TO THE SHAREHOLDER:
At the address or facsimile number set forth on the signature
page.
IF TO BSQUARE:
BSQUARE Corporation
0000 000xx Xxxxxx XX, Xxxxx 000
Xxxxxxxx, XX 00000-0000
Fax: (000) 000-0000
Attention: President
WITH A COPY TO:
Xxxxxxx Coie LLP
0000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxxxxx
Fax: (000) 000-0000
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15. MISCELLANEOUS
A. TERMINATION OF RIGHTS
Effective upon, and subject to the consummation of the Merger, any past,
present or future rights that the Shareholder may have pursuant to the Series A
Preferred Stock Purchase Agreement, Investor Rights Agreement, Right of First
Refusal and any other agreement, contract or understanding relating to corporate
governance, registration rights, rights of first refusal or first offer and
similar rights shall terminate.
B. CONVERSION OF PREFERRED STOCK
Immediately prior to, and subject to, the consummation of the Merger,
any Shares of Preferred Stock held by the Shareholder shall automatically
convert into shares of Common Stock.
C. SEVERABILITY
If any provision of this Voting Agreement or the application of such
provision to any person or circumstances shall be held invalid or unenforceable
by a court of competent jurisdiction, such provision or application shall be
unenforceable only to the extent of such invalidity or unenforceability, and the
remainder of this Voting Agreement shall not be affected.
D. CAPACITY
The covenants contained herein shall apply to the Shareholder solely in
his or her capacity as a shareholder of the Company, and no covenant contained
herein shall apply to the Shareholder in his or her capacity as an officer
and/or director of the Company.
E. COUNTERPARTS
This Voting Agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
F. HEADINGS
All Section headings herein are for convenience of reference only and
are not part of this Voting Agreement, and no construction or reference shall be
derived therefrom.
G. CHOICE OF LAW
This Voting Agreement shall be deemed a contract made under, and for all
purposes shall be construed in accordance with, the laws of the State of
Washington, without reference to its conflicts of law principles. The parties
irrevocably consent to the jurisdiction and venue of the state and federal
courts located in Santa Xxxxx County, California in connection with any action
relating to this Voting Agreement.
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H. WAIVER OF JURY TRIAL
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS
VOTING AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
F. AMENDMENT OR MODIFICATION
This Voting Agreement may be amended, modified and supplemented only by
written agreement of all parties.
(The remainder of this page has been left blank intentionally.)
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Voting Agreement as of the date first written above.
SHAREHOLDER:
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Printed Name:
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Address:
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Fax:
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Shares benficially owned:
shares of Company Common Stock
------
shares of Company Preferred Stock
------
shares of Company Common Stock issuable
------ upon exercise of outstanding options or
warrants
BSQUARE Corporation
By:
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Name:
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Title:
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SPOUSAL CONSENT
I am the spouse of the Shareholder named in the Voting Agreement. I
understand that I may consult independent legal counsel as to the effect of this
Voting Agreement and the consequences of my execution of this Voting Agreement
and, to the extent I felt it necessary, I have discussed such matters with legal
counsel. I hereby confirm this Voting Agreement and agree that it shall bind my
interest in the Shares, if any.
SHAREHOLDER'S SPOUSE
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Printed Name:
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