EXHIBIT 99.5
PLANETCAD STOCKHOLDER VOTING AGREEMENT
THIS AGREEMENT, dated as of July 17, 2002 (the "Agreement"), is
entered into among Avatech Solutions, Inc., a Delaware corporation (the
"Company"), and PCD Investments, LLC, ("Stockholder") a Colorado limited
liability company and a stockholder of PlanetCAD Inc., a Delaware corporation
("Parent").
WITNESSETH:
WHEREAS, on May 1, 2002, Parent, Raven Acquisition Corporation, a
Delaware corporation ("Sub"), and the Company entered into an Agreement and Plan
of Merger (the "Merger Agreement"), which provides for, upon the terms and
subject to the conditions set forth therein, the merger of Sub with and into the
Company (the "Merger");
WHEREAS, as of the date hereof, Stockholder is the beneficial owner (as
defined in Rule 13d-3 under the Exchange Act) of 1,863,809 shares of Parent
Common Stock (the "Owned Shares");
WHEREAS, as a condition to the Company's obligations under the Merger
Agreement, the Company has required that Stockholder enter into this Agreement;
and
WHEREAS, in order to induce the Company to consummate the Merger,
Stockholder is willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, the Company and Stockholder hereby agrees as follows:
ARTICLE I
TRANSFER AND VOTING OF SHARES;
OTHER COVENANTS OF THE STOCKHOLDER
1.1. VOTING OF SHARES. Stockholder agrees, at any meeting of the
stockholders of Parent, however called, and in any action by consent of the
stockholders of Parent, that Stockholder shall vote, or cause to be voted
pursuant to the Irrevocable Proxy attached hereto as Exhibit A, the Owned
Shares (i) in favor of the approval and adoption of the Merger Agreement (as
amended from time to time) and (ii) in favor of any other matter necessary
for consummation of the transactions contemplated by the Merger Agreement
which is considered at any such meeting of the stockholders, and in
connection therewith to execute any documents which are necessary or
appropriate in order to effectuate the foregoing, including the ability for
the Company or its nominees to vote such Owned Shares directly solely with
respect to the matters referred to in this Section 1.1.
1.2. NO INCONSISTENT ARRANGEMENTS. Except as contemplated by this
Agreement, Stockholder shall not during the term of this Agreement (i) transfer
(which term shall include, without limitation, any sale, assignment, gift,
pledge, hypothecation or other disposition), or consent to any transfer of, any
or all of Stockholder's Owned Shares or any interest therein, or create or
permit to exist any Encumbrance (as defined below) on such Owned Shares unless
such
transfer or Encumbrance is done subject to the voting requirements set forth
in Section 1.1 and subject to any such transferee or the beneficiary of any
such Encumbrance executing a Proxy (as defined below); provided, however,
that the prohibitions set forth in this clause (i) shall not apply to sales
by Stockholder through any open market transaction on an exchange on which
the Parent Common Stock is listed or a similar trading market; provided
further, that the number of Owned Shares subject to any such sales shall be
subject to applicable laws and regulations; (ii) enter into any contract,
option or other agreement or understanding with respect to any transfer of
any or all of such Owned Shares or any interest therein on terms that would,
at the time of entering into such contract, option or other agreement or
understanding or with the passage of time, violate clause (i) above, (iii)
grant any proxy, power-of-attorney or other authorization in or with respect
to such Owned Shares, (iv) deposit such Owned Shares into a voting trust or
enter into a voting agreement or arrangement with respect to such Owned
Shares or (v) take any other action that would in any way restrict, limit or
interfere with the performance of Stockholder's obligations hereunder or the
transactions contemplated hereby or by the Merger Agreement. Notwithstanding
anything in this Agreement to the contrary, Stockholder may transfer all or
any of Stockholder's Owned Shares to any trust, partnership or similar
vehicle formed for estate, tax or family planning purposes of which
Stockholder controls the vote, provided that as a condition of such transfer,
Stockholder notifies the Company and provides the Company with documentation
reasonably satisfactory to the Company as to the consent of the transferee to
be bound by all of the provisions of this Agreement.
1.3. PROXY. Stockholder hereby revokes any and all prior proxies or
powers-of-attorney in respect of any of the Owned Shares and constitutes and
agrees to execute the proxy in the form attached hereto as EXHIBIT A (the
"Proxy").
1.4. STOP TRANSFER. Stockholder shall not request that Parent 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 and acknowledges that Parent and the Company may
notify Parent's transfer agent of the terms hereof.
1.5. DISCLOSURE. Stockholder hereby authorizes Parent and the Company
to publish and disclose in the Proxy Statement/Prospectus (including all
documents and schedules filed with the SEC) its identity and ownership of the
Owned Shares and the nature of its commitments, arrangements and understandings
under this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
Stockholder hereby represents and warrants to the Company as follows:
2.1. DUE AUTHORIZATION, ETC. Stockholder has all requisite personal or
corporate power and authority to execute, deliver and perform this Agreement, to
appoint the Company as its Proxy and to consummate the transactions contemplated
hereby. The execution, delivery and performance of this Agreement, the
appointment of the Company as Stockholder's Proxy and the consummation of the
transactions contemplated hereby have been duly authorized by all
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necessary action on the part of Stockholder. This Agreement has been duly
executed and delivered by or on behalf of Stockholder and constitutes a legal,
valid and binding obligation of Stockholder, enforceable against Stockholder in
accordance with its terms, except as enforcement may be limited by bankruptcy,
insolvency, moratorium or other similar laws and except that the availability of
equitable remedies, including specific performance, is subject to the discretion
of the court before which any proceeding for such remedy may be brought.
2.2. NO CONFLICTS; REQUIRED FILINGS AND CONSENTS.
(a) The execution and delivery of this Agreement by Stockholder does
not, and the performance of this Agreement by Stockholder will not conflict with
or violate any document, agreement, law, regulation or order to which
Stockholder is subject or by which Stockholder or any of Stockholder's assets is
bound or affected.
(b) The execution and delivery of this Agreement by Stockholder does
not, and the performance of this Agreement by 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 delay the performance by Stockholder of
Stockholder's obligations under this Agreement.
2.3. TITLE TO SHARES. Stockholder is the sole record and beneficial
owner of the Owned Shares, free and clear of any pledge, lien, security
interest, mortgage, charge, claim, equity, option, proxy, voting restriction,
voting trust or agreement, understanding, arrangement, right of first refusal,
limitation on disposition, adverse claim of ownership or use or encumbrance of
any kind ("Encumbrances"), other than restrictions imposed by the securities
laws or pursuant to this Agreement or the Merger Agreement or as otherwise
disclosed by Stockholder to the Company.
ARTICLE III
MISCELLANEOUS
3.1. DEFINITIONS. Terms used but not otherwise defined in this
Agreement have the meanings ascribed to such terms in the Merger Agreement.
3.2. TERMINATION. This Agreement shall terminate and be of no further
force and effect upon the earlier of (i) the unanimous written consent of the
parties hereto, (ii) the Effective Time, (iii) the termination of the Merger
Agreement in accordance with its terms and (iv) October 1, 2002, unless extended
for up to thirty (30) days by the Company if the Proxy Statement/Prospectus has
not been declared effective by the SEC by August 15, 2002. No such termination
of this Agreement shall relieve any party hereto from any liability for any
breach of this Agreement prior to termination.
3.3. EFFORTS; FURTHER ASSURANCE. The Company will use its reasonable
best efforts to cause the Proxy Statement/Prospectus to be declard effective
prior to August 15, 2002. From time to time, at another party's request and
without consideration, each party hereto shall execute and deliver such
additional documents and take all such further action as may be necessary or
desirable to consummate and make effective, in the
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most expeditious manner practicable, the transaction contemplated by this
Agreement. Stockholder understands and acknowledges that the Company is
proceeding with the Merger in reliance upon Stockholder's execution and delivery
of this Agreement.
3.4. CERTAIN EVENTS. Stockholder agrees that this Agreement and
Stockholder's obligations hereunder shall attach to Stockholder's Owned Shares
and shall be binding upon any person or entity to which legal or beneficial
ownership of such Owned Shares shall pass, whether by operation of law or
otherwise, including, without limitation, Stockholder's heirs, guardians,
administrators, or successors. Notwithstanding any transfer of Owned 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, 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. Any party hereto may (i) extend the time for the performance of any
of the obligations or other acts of the other parties hereto, (ii) waive any
inaccuracies in the representations and warranties of the other parties hereto
contained herein or in any document delivered pursuant hereto and (iii) waive
compliance by the other parties hereto with any of their agreements or
conditions contained herein. Any agreement on the part of a party hereto to any
such extension or waiver shall be valid only as against such party and only if
set forth in an instrument in writing signed by such party. The failure of any
party hereto to assert any of its rights under this Agreement or otherwise shall
not constitute a waiver of those rights.
3.6. SPECIFIC PERFORMANCE. Stockholder acknowledges that if Stockholder
fails to perform any of its obligations under this Agreement immediate and
irreparable harm or injury would be caused to the Company for which money
damages would not be an adequate remedy. In such event, Stockholder agrees that
the Company shall have the right, in addition to any other rights it may have,
to specific performance of this Agreement. Accordingly, if the Company should
institute an action or proceeding seeking specific enforcement of the provisions
hereof, Stockholder hereby waives the claim or defense that the Company has an
adequate remedy at law and hereby agrees not to assert in any such action or
proceeding the claim or defense that such a remedy at law exists. Stockholder
further agrees to waive any requirements for the securing or posting of any bond
in connection with obtaining any such equitable relief.
3.8. EXPENSES. All fees, costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be paid by the
party incurring such fees, costs and expenses.
3.9. SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal, or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an
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acceptable manner to the end that transactions contemplated hereby are fulfilled
to the maximum extent possible.
3.10. ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This Agreement
constitutes the entire agreement and supersedes any and all other prior
agreements and undertakings, both written and oral, among the parties, or any of
them, with respect to the subject matter hereof, and this Agreement is not
intended to confer upon any other person any rights or remedies hereunder.
3.11. ASSIGNMENT. This Agreement shall not be assigned by operation of
law or otherwise.
3.12. GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware applicable to contracts
executed in and to be performed entirely within that State.
3.13. AMENDMENT. This Agreement may not be amended except by an
instrument in writing signed by the parties hereto.
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.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company and the Stockholder have caused this
Agreement to be executed as of the date first written above.
AVATECH SOLUTIONS, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Chairman and CEO
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PCD INVESTMENTS, LLC
/s/ Xxxx X. Xxxxxx
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Print Name: Xxxx X. Xxxxxx
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EXHIBIT A
IRREVOCABLE PROXY
By its execution hereof, and in order to secure its
obligations under the PlanetCAD Stockholder Voting Agreement (the "Voting
Agreement") of even date herewith among Avatech Solutions, Inc., a Delaware
corporation (the "Company"), and PCD Investments, LLC, which is a Stockholder of
PlanetCAD Inc., a Delaware corporation ("Parent"), the undersigned (the
"Stockholder") hereby irrevocably constitutes and appoints the Company and its
successors and assigns, with full power of substitution and resubstitution, from
the date hereof to the termination of the Voting Agreement, as Stockholder's
true and lawful attorney and proxy (its "Proxy"), for and in Stockholder's name,
place and stead, to demand that the Secretary call a special meeting of
Stockholder of the Company for the purpose of considering any action related to
the Merger Agreement and to vote each of the Owned Shares of the Stockholder as
Stockholder's Proxy at every annual, special or adjourned meeting of Stockholder
of Parent, and to sign on behalf of Stockholder (as a Stockholder of Parent) any
ballot, proxy, consent, certificate or other document relating to Parent that
law permits or requires, in a manner consistent with Section 1.1 of the Voting
Agreement. This Proxy is coupled with an interest and the Stockholder intends
this Proxy to be irrevocable to the fullest extent permitted by law. The
Stockholder hereby revokes any proxy previously granted by Stockholder with
respect to the Owned Shares. Capitalized terms used but not defined herein shall
have the meaning set forth in the Voting Agreement. The Stockholder shall
perform such further acts and execute such further documents and instruments as
may reasonably be required to vest in the Company, or any of its nominees, the
power to carry out and give effect to the provisions of this Proxy.
IN WITNESS WHEREOF, the undersigned has executed this
Irrevocable Proxy this 17th day of July, 2002.
PCD INVESTMENTS, LLC
/s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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Address:
0000 Xxxxxx Xx. #000
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Xxxxxxx, XX 00000
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