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EXHIBIT 2
VOTING AGREEMENT
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VOTING AGREEMENT
This VOTING AGREEMENT (the "AGREEMENT") is made and entered into as of
March 22, 2001, between Micron Electronics, Inc., a Minnesota corporation
("MEI"), Micron Technology, Inc., a Delaware corporation ("MTI"), and the
undersigned shareholders (the "SHAREHOLDERS," and individually a "SHAREHOLDER")
of Interland, Inc., a Georgia corporation ("COMPANY").
RECITALS
A. Concurrently with the execution of this Agreement, MEI, Company and
Interland Acquisition Corporation, a Delaware corporation and a wholly owned
first-tier subsidiary of MEI ("MERGER SUB"), are entering into an Agreement and
Plan of Merger (the "MERGER AGREEMENT") that provides for the merger of Merger
Sub with and into Company (the "MERGER"). Pursuant to the Merger, shares of
common stock of Company, no par value per share ("COMPANY COMMON STOCK") will be
converted into shares of common stock of MEI, $0.01 par value per share ("MEI
COMMON STOCK") on the basis described in the Merger Agreement. Capitalized terms
used but not defined herein shall have the meanings set forth in the Merger
Agreement.
B. Shareholder is the record holder of such number of outstanding
shares of Company Common Stock as is indicated on the final page of this
Agreement.
C. As a material inducement to enter into the Merger Agreement, MEI
desires the Shareholders to agree, and each Shareholder is willing to agree, to
vote the Shares (as defined below), and such other shares of capital stock of
Company over which Shareholder has voting power, so as to facilitate
consummation of the Merger.
D. MTI is the record holder of such number of outstanding shares of MEI
Common Stock as is indicated on the final page of this Agreement.
E. As a material inducement to enter into the Merger Agreement, the
Company desires MTI to agree, and MTI is willing to agree, to vote the MEI
Shares (as defined below), and such other shares of capital stock of MEI over
which MTI has voting power, so as to facilitate consummation of the Merger.
In consideration of the foregoing and the representations,
warranties, covenants and agreements set forth in this Agreement, the parties
agree as follows:
1. AGREEMENT TO VOTE SHARES
1.1 Definitions. For purposes of this Agreement:
(a) Shares. The term "SHARES" shall mean all issued
and outstanding shares of Company Common Stock owned of record or beneficially
by Shareholder or over
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which Shareholder exercises voting power, in each case, as of the record date
for persons entitled (i) to receive notice of, and to vote at the meeting of the
shareholders of Company called for the purpose of voting on the matters referred
to in Section 1.2, or (ii) to take action by written consent of the shareholders
of Company with respect to the matters referred to in Section 1.2. Shareholder
agrees that any shares of capital stock of Company that Shareholder purchases or
with respect to which Shareholder otherwise acquires beneficial ownership or
over which Shareholder exercises voting power after the execution of this
Agreement and prior to the date of termination of this Agreement pursuant to
Section 7 below shall be subject to the terms and conditions of this Agreement
to the same extent as if they constituted Shares on the date hereof.
(b) Subject Securities. The term "SUBJECT SECURITIES"
shall mean: (i) all securities of Company (including all shares of Company
Common Stock and all options, warrants and other rights to acquire shares of
Company Common Stock beneficially owned by Shareholder as of the date of this
Agreement; and (ii) all additional securities of Company (including all
additional shares of Company Common Stock and all additional options, warrants
and other rights to acquire shares of Company Common Stock) of which Shareholder
acquires ownership during the period from the date of this Agreement through the
earlier of termination of this Agreement pursuant to Section 4 below or the
record date for the meeting at which shareholders of Company are asked to vote
upon approval of the Merger Agreement and the Merger.
(c) Transfer. Shareholder or MTI shall be deemed to
have effected a "TRANSFER" of a security if Shareholder or MTI directly or
indirectly: (i) sells, pledges, encumbers, transfers or disposes of, or grants
an option with respect to, such security or any interest in such security; or
(ii) enters into an agreement or commitment providing for the sale, pledge,
encumbrance, transfer or disposition of, or grant of an option with respect to,
such security or any interest therein. Notwithstanding the foregoing, a transfer
of MEI shares by MTI to the MTI Foundation is excluded from the definition of
"Transfer" for purposes of this Agreement, so long as the Foundation also enters
into this agreement with respect to such transferred shares.
1.2 Agreement to Vote Shares. Shareholder hereby covenants and
agrees that, during the period commencing on the date hereof and continuing
until the first 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
(the "EFFECTIVE TIME") and (ii) termination of this Agreement in accordance with
its terms, at any meeting (whether annual or special and whether or not an
adjourned or postponed meeting) of the shareholders of Company, however called,
or in connection with any written consent of the shareholders of Company,
Shareholder will appear at the meeting or otherwise cause the Shares to be
counted as present thereat for purposes of establishing a quorum and vote or
consent (or cause to be voted or consented) the Shares:
(1) in favor of the approval and adoption of the Merger
Agreement and the approval of the Merger and the other actions
contemplated by the Merger Agreement and any actions required in
furtherance thereof;
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(2) against approval of any proposal made in opposition to or
in competition with the consummation of the Merger, including, without
limitation, any Acquisition Proposal or Superior Offer (each as defined
in the Merger Agreement) or any action or agreement that would result
in a breach in any respect of any covenant, representation or warranty
or any other obligation or agreement of Company under the Merger
Agreement or of the Shareholder under this Agreement.
Shareholder further agrees not to enter into any agreement or
understanding with any person the effect of which would be inconsistent with or
violative of any provision contained in this Section 1.2.
1.3. Transfer and Other Restrictions. (a) Prior to the
termination of this Agreement, Shareholder agrees not to, directly or
indirectly:
(i) except pursuant to the terms of the Merger
Agreement, offer for sale, Transfer or otherwise dispose of, or enter
into any contract, option or other arrangement or understanding with
respect to or consent to the offer for sale Transfer or other
disposition of any or all of the Subject Securities or any interest
therein except as provided in Section 1.2 hereof;
(ii) grant any proxy, power of attorney, deposit any
of the Subject Securities into a voting trust or enter into a voting
agreement or arrangement with respect to the Subject Securities except
as provided in this Agreement; or
(iii) take any other action that would make any
representation or warranty of Shareholder contained herein untrue or
incorrect or have the effect of preventing or disabling Shareholder
from performing its obligations under this Agreement.
(b) To the extent Shareholder is, as of the date hereof, party to a
contract or agreement that requires Shareholder to Transfer Shares to another
person or entity (excluding a contract or agreement pledging Shares to Company),
Shareholder will not effect any such Transfer unless and until the transferee
agrees to be bound by and executes an agreement in the form of this Agreement
with respect to the Shares to be Transferred. Nothing herein shall prohibit
Shareholder from exercising (in accordance with the terms of the option or
warrant, as applicable) any option or warrant Shareholder may hold; provided
that the securities acquired upon such exercise shall be deemed Shares.
1.4 Irrevocable Proxy. Concurrently with the execution of this
Agreement, Shareholder agrees to deliver to MEI a proxy in the form attached
hereto as Exhibit I (the "PROXY"), which shall be irrevocable, with respect to
the Shares, subject to the other terms of this Agreement.
2. AGREEMENT TO VOTE MEI SHARES
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2.1 Definitions. For purposes of this Agreement:
(a) MEI Shares. The term "MEI SHARES" shall mean all
issued and outstanding shares of MEI Common Stock owned of record or
beneficially by MTI or over which MTI exercises voting power, in each case, as
of the record date for persons entitled (i) to receive notice of, and to vote at
the meeting of the shareholders of MEI called for the purpose of voting on the
matters referred to in Section 2.2, or (ii) to take action by written consent of
the shareholders of MEI with respect to the matters referred to in Section 2.2.
MTI agrees that any shares of capital stock of MEI that MTI purchases or with
respect to which MTI otherwise acquires beneficial ownership or over which MTI
exercises voting power after the execution of this Agreement and prior to the
date of termination of this Agreement pursuant to Section 7 below shall be
subject to the terms and conditions of this Agreement to the same extent as if
they constituted MEI Shares on the date hereof.
(b) Subject MEI Securities. The term "SUBJECT MEI
SECURITIES" shall mean: (i) all securities of MEI (including all shares of MEI
Common Stock and all options, warrants and other rights to acquire shares of MEI
Common Stock beneficially owned by MTI as of the date of this Agreement; and
(ii) all additional securities of MEI (including all additional shares of MEI
Common Stock and all additional options, warrants and other rights to acquire
shares of MEI Common Stock) of which MTI acquires ownership during the period
from the date of this Agreement through the earlier of termination of this
Agreement pursuant to Section 4 below or the record date for the meeting at
which shareholders of MEI are asked to vote upon approval of the Merger
Agreement and the Merger.
2.2 Agreement to Vote MEI Shares. MTI hereby covenants and
agrees that, during the period commencing on the date hereof and continuing
until the first 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
(the "EFFECTIVE TIME"), (ii) termination of this Agreement in accordance with
its terms, and (iii) November 30, 2001, at any meeting (whether annual or
special and whether or not an adjourned or postponed meeting) of the
shareholders of MEI, however called, or in connection with any written consent
of the shareholders of MEI, MTI will appear at the meeting or otherwise cause
the MEI Shares to be counted as present thereat for purposes of establishing a
quorum and vote or consent (or cause to be voted or consented) the MEI Shares:
(1) in favor of the approval and adoption of the Merger
Agreement and the approval of the Merger;
(2) in favor of the Parent Shareholder Approval Matters;
and
(3) against approval of any proposal made in opposition
to or in competition with the consummation of the
Merger, including, without limitation, any Parent
Acquisition or any action or agreement that would
result in a breach in any respect of any covenant,
representation or warranty or any other obligation or
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agreement of MEI under the Merger Agreement or of MTI
under this Agreement;
provided, that, in each event the Merger Agreement shall not have been amended
or modified.
MTI further agrees not to enter into any agreement or understanding
with any person the effect of which would be inconsistent with or violative of
any provision contained in this Section 2.2. Notwithstanding anything to the
contrary in this Agreement, MTI shall not be obligated to vote in favor of the
disposition of any assets of MEI or in favor of any other transaction other than
the Merger.
2.3. Transfer and Other Restrictions. (a) Prior to the
termination of this Agreement, MTI agrees not to, directly or indirectly:
(i) except pursuant to the terms of the Merger
Agreement, offer for sale, Transfer or otherwise dispose of, or enter
into any contract, option or other arrangement or understanding with
respect to or consent to the offer for sale Transfer or other
disposition of any or all of the Subject MEI Securities or any interest
therein except as provided in Section 2.2 hereof;
(ii) grant any proxy, power of attorney, deposit any
of the Subject MEI Securities into a voting trust or enter into a
voting agreement or arrangement with respect to the Subject MEI
Securities except as provided in this Agreement; or
(iii) take any other action that would make any
representation or warranty of MTI contained herein untrue or incorrect
or have the effect of preventing or disabling MTI from performing its
obligations under this Agreement.
(b) To the extent MTI is, as of the date hereof, party to a contract or
agreement that requires MTI to Transfer MEI Shares to another person or entity
(excluding a contract or agreement pledging MEI Shares to MEI), MTI will not
effect any such Transfer unless and until the transferee agrees to be bound by
and executes an agreement in the form of this Agreement with respect to the MEI
Shares to be Transferred. Nothing herein shall prohibit MTI from exercising (in
accordance with the terms of the option or warrant, as applicable) any option or
warrant MTI may hold; provided that the securities acquired upon such exercise
shall be deemed MEI Shares.
3. REPRESENTATIONS AND WARRANTIES
(a) Representations and Warranties of the Shareholders
(i) Shareholder is the record and beneficial owner
of, or Shareholder exercises voting power over, the shares of Company
Common Stock indicated on the final page of this Agreement, which, on
and as of the date hereof, are free and clear of
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any Encumbrances that would adversely affect the ability of Shareholder
to carry out the terms of this Agreement except with respect to the
encumbrances on Shares beneficially owned by Xxxxxxx Xxxxxxxxxx as
described in Section 5.16(b) of the Merger Agreement. The number of
Shares set forth on the signature pages hereto are the only Shares
beneficially owned by such Shareholder and, except as set forth on such
signature pages, the Shareholder holds no options to purchase or rights
to subscribe for or otherwise acquire any securities of the Company and
has no other interest in or voting rights with respect to any
securities of the Company.
(ii) Shareholder has the requisite power and
authority to enter into this Agreement and to consummate the
transaction contemplated by this Agreement. The execution and delivery
of this Agreement by such Shareholder and the consummation by such
Shareholder of the transactions contemplated by this Agreement have
been duly authorized by all necessary action. This Agreement has been
duly executed and delivered by such Shareholder and constitutes a valid
and binding obligation of such Shareholder, enforceable against such
Shareholder in accordance with its terms, except (i) as the same may be
limited by applicable bankruptcy, insolvency, moratorium or similar
laws of general application relating to or affecting creditors' rights,
and (ii) for the limitations imposed by general principles of equity.
The execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated by this Agreement and
compliance with the provisions of this Agreement will not, conflict
with, or result in any violation of, or default (with or without notice
or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any obligation that would
result in the creation of any Encumbrance upon any of the Shares owned
by such Shareholder under, any provision of applicable law or
regulation or of any agreement, judgment, injunction, order, decree, or
other instrument binding on such Shareholder or any Shares owned by
such Shareholder. No consent, approval, order or authorization of any
Governmental Entity is required by or with respect to such Shareholder
in connection with the execution and delivery of this Agreement by such
Shareholder or the consummation by such Shareholder of the transactions
contemplated by this Agreement, except (i) for applicable requirements,
if any, of the Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder, and (ii) where the failure to obtain
such consents, approvals, orders or authorizations would not prevent or
materially delay the performance by Shareholder of its obligations
under this Agreement. If this Agreement is being executed in a
representative or fiduciary capacity, the person signing this Agreement
has full power and authority to enter into and perform such Agreement.
(b) Representations and Warranties of MTI
(i) MTI is the record and beneficial owner of, or MTI
exercises voting power over, the shares of MEI Common Stock indicated
on the final page of this Agreement, which, on and as of the date
hereof, are free and clear of any Encumbrances that would adversely
affect the ability of MTI to carry out the terms of this Agreement. The
number of MEI Shares set forth on the signature pages hereto are the
only MEI Shares beneficially owned by MTI and, except as set forth on
such signature pages, MTI
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holds no options to purchase or rights to subscribe for or otherwise
acquire any securities of MEI and has no other interest in or voting
rights with respect to any securities of MEI.
(ii) MTI has the requisite power and authority to
enter into this Agreement and to consummate the transaction
contemplated by this Agreement. The execution and delivery of this
Agreement by MTI and the consummation by MTI of the transactions
contemplated by this Agreement have been duly authorized by all
necessary action. This Agreement has been duly executed and delivered
by MTI and constitutes a valid and binding obligation of MTI,
enforceable against MTI in accordance with its terms, except (i) as the
same may be limited by applicable bankruptcy, insolvency, moratorium or
similar laws of general application relating to or affecting creditors'
rights, and (ii) for the limitations imposed by general principles of
equity. The execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated by this Agreement and
compliance with the provisions of this Agreement will not, conflict
with, or result in any violation of, or default (with or without notice
or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any obligation that would
result in the creation of any Encumbrance upon any of the MEI Shares
owned by MTI under, any provision of applicable law or regulation or of
any agreement, judgment, injunction, order, decree, or other instrument
binding on MTI or any MEI Shares owned by MTI. No consent, approval,
order or authorization of any Governmental Entity is required by or
with respect to MTI in connection with the execution and delivery of
this Agreement by MTI or the consummation by MTI of the transactions
contemplated by this Agreement, except (i) for applicable requirements,
if any, of the Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder, and (ii) where the failure to obtain
such consents, approvals, orders or authorizations would not prevent or
materially delay the performance by MTI of its obligations under this
Agreement. If this Agreement is being executed in a representative or
fiduciary capacity, the person signing this Agreement has full power
and authority to enter into and perform such Agreement.
4. TERMINATION
This Agreement shall terminate and shall have no further force or
effect as of the first to occur of (i) the Effective Time, (ii) such date and
time as the Merger Agreement shall have been validly terminated pursuant to
Article VII thereof and (iii) November 30, 2001.
5. MISCELLANEOUS
5.1 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given upon delivery either personally or
by commercial delivery service, or sent via facsimile (receipt confirmed) to the
parties at the following addresses or facsimile numbers (or at such other
address or facsimile numbers for a party as shall be specified by like notice):
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If to MEI:
Micron Electronics, Inc.
000 X. Xxxxxxx Xxxx
Xxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. XxXxxxxx
Facsimile: 000-000-0000
Micron Technology, Inc.
0000 X. Xxxxxxx Xxx
Xxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxx X. Xxxx
Facsimile: 000-000-0000
If to Shareholder, to the address for notice set forth on the
last page hereof.
with a copy to:
Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx
Facsimile: 000-000-0000
5.2 Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement
and shall become
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effective when one or more counterparts have been signed by each of the parties
and delivered to the other party, it being understood that all parties need not
sign the same counterpart.
5.3 Entire Agreement; Third Party Beneficiaries. This
Agreement, its Exhibits (a) constitute the entire agreement among the parties
with respect to the subject matter hereof and supersede all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof; and (b) are not intended to confer upon any other person
any rights or remedies hereunder other than Interland who shall be deemed to be
an intended third party beneficiary of this Agreement.
5.4 Severability. In the event that any provision of this
Agreement or the application thereof, becomes or is declared by a court of
competent jurisdiction to be illegal, void or unenforceable, the remainder of
this Agreement will continue in full force and effect and the application of
such provision to other persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further agree
to replace such void or unenforceable provision of this Agreement with a valid
and enforceable provision that will achieve, to the extent possible, the
economic, business and other purposes of such void or unenforceable provision.
5.5 Other Remedies; Specific Performance. Except as otherwise
provided herein, any and all remedies herein expressly conferred upon a party
will be deemed cumulative with and not exclusive of any other remedy conferred
hereby, or by law or equity upon such party, and the exercise by a party of any
one remedy will not preclude the exercise of any other remedy. The parties
hereto agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to seek an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
hereof in any court of the United States or any state having jurisdiction, this
being in addition to any other remedy to which they are entitled at law or in
equity.
5.6 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
law thereof.
5.7 Rules of Construction. The parties hereto agree that they
have been represented by counsel during the negotiation and execution of this
Agreement and, therefore, waive the application of any law, regulation, holding
or rule of construction providing that ambiguities in an agreement or other
document will be construed against the party drafting such agreement or
document.
5.8 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
any of the parties without prior written consent of the other parties. Any
purported assignment in violation of this Section shall be void.
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5.9 Waiver Of Jury Trial. EACH PARTY TO THIS AGREEMENT HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE ACTIONS OF THE PARTIES TO THIS AGREEMENT IN
THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.
5.10 Costs And Attorneys' Fees. In the event that any action,
suit or other proceeding is instituted concerning or arising out of this
Agreement or any transaction contemplated hereunder, the prevailing party shall
recover all of such party's costs and attorneys' fees incurred in each such
action, suit or other proceeding, including any and all appeals or petitions
therefrom.
5.11 Titles and Headings. The titles, captions and headings of
this Agreement are included for ease of reference only and will be disregarded
in interpreting or construing this Agreement. Unless otherwise specifically
stated, all references herein to "sections" and "exhibits" will mean "sections"
and "exhibits" to this Agreement.
5.12 Amendment and Waivers. This Agreement may be amended only
by a written agreement executed by each of the parties hereto. No amendment of
or waiver of, or modification of any obligation under this Agreement will be
enforceable unless set forth in a writing signed by the party against which
enforcement is sought. Any amendment effected in accordance with this section
will be binding upon all parties hereto and each of their respective successors
and assigns. No delay or failure to require performance of any provision of this
Agreement shall constitute a waiver of that provision as to that or any other
instance. No waiver granted under this Agreement as to any one provision herein
shall constitute a subsequent waiver of such provision or of any other provision
herein, nor shall it constitute the waiver of any performance other than the
actual performance specifically waived.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, as of the date first above written the undersigned
parties have executed this Agreement as of the date first above written.
MICRON ELECTRONICS, INC.
By: /s/ Xxxx X. Xxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President and Chief Executive Officer
MICRON TECHNOLOGY, INC.
By: /s/ Xxxxxx X. Stove
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President, Treasurer, and Chief Financial Officer
SHAREHOLDER: SHAREHOLDER ADDRESS:
c/o Interland, Inc.
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000 Xxxxxxxxx Xxxxxx Xxxxxx
------------------------------------
/s/ Xxx Xxxxxxxxxx Suite 500
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(sign here) Xxxxxxx, XX 00000
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TEL: (000) 000-0000
Name: Xxx Xxxxxxxxxx
--------------------------------
(please print)
SHARES OF COMPANY COMMON STOCK FAX: (000) 000-0000
BENEFICIALLY OWNED:
9,012,523
----------------------
SHAREHOLDER: SHAREHOLDER ADDRESS:
------------------------------------
------------------------------------
------------------------------------- ------------------------------------
(sign here)
------------------------------------
TEL:
---------------------
Name:
--------------------------------
(please print)
SHARES OF COMPANY COMMON STOCK FAX:
BENEFICIALLY OWNED: ---------------------
-----------------
[SIGNATURE PAGE TO VOTING AGREEMENT]
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EXHIBIT I
IRREVOCABLE PROXY
The undersigned Shareholder (the "SHAREHOLDER") of Interland, Inc., a
Georgia corporation (the "COMPANY"), hereby irrevocably appoints and constitutes
the members of the Board of Directors of Micron Electronics, Inc., a Minnesota
corporation ("MEI"), and each such Board member (collectively the
"PROXYHOLDERS"), the agents, 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 Company that
are listed below (the "SHARES"), and any and all other shares or securities
issued or issuable in respect thereof on or after the date hereof and prior to
the date this proxy terminates, to vote the Shares as follows: the agents and
proxies named above are empowered at any time prior to termination of this proxy
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, (i) in favor of adoption of the Agreement and Plan of Merger (the
"MERGER AGREEMENT") among MEI, Interland Acquisition Corporation and Company,
and the approval of the merger of Interland Acquisition Corporation with and
into Company (the "MERGER"), and (ii) against approval of any proposal made in
opposition to or in competition with consummation of the Merger, including,
without limitation, any Acquisition Proposal or Superior Offer (each as defined
in the Merger Agreement) or any action or agreement that would result in a
breach in any respect of any covenant, representation or warranty or any other
obligation or agreement of Company under the Merger Agreement or of the
Shareholder under the Voting Agreement.
The Proxyholders may not exercise this proxy on any other matter. The
Shareholder may vote the Shares on all such other matters. The proxy granted by
the Shareholder to the Proxyholders hereby is granted as of the date of this
Irrevocable Proxy in order to secure the obligations of the Shareholder set
forth in Section 1 of the Voting Agreement, and is irrevocable and coupled with
an interest in such obligations and in the interests in Company to be purchased
and sold pursuant the Merger Agreement.
This proxy will terminate upon the termination of the Voting Agreement
in accordance with its terms. 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 until such time as this
proxy shall be terminated in accordance with its terms. Any obligation of the
undersigned hereunder shall be binding upon the successors and assigns of the
undersigned. The undersigned Shareholder authorizes the Proxyholders to file
this proxy and any substitution or revocation of substitution with the Secretary
of the Company and with any Inspector of Elections at any meeting of the
Shareholders of the Company.
This proxy is irrevocable and shall survive the insolvency, incapacity,
death or liquidation of the undersigned. Dated: March __, 2001.
/s/ Xxx Xxxxxxxxxx
-------------------------------------
Signature
Xxx Xxxxxxxxxx
--------------------------------------
Name (and Title)
Shares of Company Common Stock
beneficially owned: 9,012,523
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IN WITNESS WHEREOF, as of the date first above written the undersigned
parties have executed this Agreement as of the date first above written.
MERLIN ELECTRONICS, INC.
By:
--------------------------------
Name:
Title:
MERLIN TECHNOLOGY, INC.
By:
--------------------------------
Name:
Title:
SHAREHOLDER:
The undersigned Shareholder joins this Agreement only with respect to the number
of shares beneficially owned by such shareholder that are set forth below. As
used in this Agreement, with respect to the undersigned Shareholder, the terms
"Shares" and "Subject Securities" shall refer only the number of shares set
forth below. In addition, all representations and warranties of the undersigned
shareholder as set forth in Section 3 of this Agreement shall refer only to the
number of shares beneficially owned by such shareholder that are set forth
below.
SHAREHOLDER ADDRESS:
------------------------------------
------------------------------------
/s/ Xxxxxxxx Xxxxxxxxx
------------------------------------- ------------------------------------
(sign here)
------------------------------------
Name: Xxxxxxxx Xxxxxxxxx TEL:
-------------------------------- -----------------------------
(please print)
SHARES OF COMPANY COMMON STOCK FAX:
BENEFICIALLY OWNED: -----------------------------
1,000,000 (shares voted for)
----------------------------
15
EXHIBIT I
IRREVOCABLE PROXY
The undersigned Shareholder (the "SHAREHOLDER") of Illusion, Inc., a
Georgia corporation (the "COMPANY"), hereby irrevocably appoints and constitutes
the members of the Board of Directors of Merlin Electronics, Inc., a Minnesota
corporation ("MEI"), and each such Board member (collectively the
"PROXYHOLDERS"), the agents, 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 Company that
are listed below (the "SHARES"), and any and all other shares or securities
issued or issuable in respect thereof on or after the date hereof and prior to
the date this proxy terminates, to vote the Shares as follows: the agents and
proxies named above are empowered at any time prior to termination of this proxy
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, (i) in favor of adoption of the Agreement and Plan of Merger (the
"MERGER AGREEMENT") among MEI, Illusion Acquisition Corporation and Company, and
the approval of the merger of Illusion Acquisition Corporation with and into
Company (the "MERGER"), and (ii) against approval of any proposal made in
opposition to or in competition with consummation of the Merger, including,
without limitation, any Acquisition Proposal or Superior Offer (each as defined
in the Merger Agreement) or any action or agreement that would result in a
breach in any respect of any covenant, representation or warranty or any other
obligation or agreement of Company under the Merger Agreement or of the
Shareholder under the Voting Agreement.
The Proxyholders may not exercise this proxy on any other matter. The
Shareholder may vote the Shares on all such other matters. The proxy granted by
the Shareholder to the Proxyholders hereby is granted as of the date of this
Irrevocable Proxy in order to secure the obligations of the Shareholder set
forth in Section 1 of the Voting Agreement, and is irrevocable and coupled with
an interest in such obligations and in the interests in Company to be purchased
and sold pursuant the Merger Agreement.
This proxy will terminate upon the termination of the Voting Agreement
in accordance with its terms. 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 until such time as this
proxy shall be terminated in accordance with its terms. Any obligation of the
undersigned hereunder shall be binding upon the successors and assigns of the
undersigned. The undersigned Shareholder authorizes the Proxyholders to file
this proxy and any substitution or revocation of substitution with the Secretary
of the Company and with any Inspector of Elections at any meeting of the
Shareholders of the Company.
This proxy is irrevocable and shall survive the insolvency, incapacity,
death or liquidation of the undersigned. Dated: March __, 2001.
/s/ Xxxxxxxx Xxxxxxxxx
---------------------------------------------
Signature
Xxxxxxxx Xxxxxxxxx
---------------------------------------------
Name (and Title)
Shares of Company Common Stock beneficially
owned: 1,000,000 (shares voted for)
16
SHAREHOLDER:
CREST COMMUNICATIONS PARTNERS, L.P.
By: CREST COMMUNICATIONS HOLDINGS LLC,
its authorized representative SHAREHOLDER ADDRESS:
000 Xxxx Xxxxxx
------------------------------------
17th Floor
------------------------------------
By: /s/ Xxxxx X. Xxxxxxxxxxx Xxx Xxxx, XX 00000
---------------------------------- ------------------------------------
(sign here) Attn: Xxxx Xxxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxxxx TEL: (000) 000-0000
-------------------------------- -----------------------------
(please print)
Title: Managing Director
-------------------------------
SHARES OF COMPANY COMMON STOCK FAX: (000) 000-0000
BENEFICIALLY OWNED: -----------------------------
3,851,432
-----------------
[SIGNATURE PAGE TO VOTING AGREEMENT]
17
EXHIBIT I
IRREVOCABLE PROXY
The undersigned Shareholder (the "SHAREHOLDER") of Illusion, Inc., a
Georgia corporation (the "COMPANY"), hereby irrevocably appoints and constitutes
the members of the Board of Directors of Merlin Electronics, Inc., a Minnesota
corporation ("MEI"), and each such Board member (collectively the
"PROXYHOLDERS"), the agents, 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 Company that
are listed below (the "SHARES"), and any and all other shares or securities
issued or issuable in respect thereof on or after the date hereof and prior to
the date this proxy terminates, to vote the Shares as follows: the agents and
proxies named above are empowered at any time prior to termination of this proxy
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, (i) in favor of adoption of the Agreement and Plan of Merger (the
"MERGER AGREEMENT") among MEI, Illusion Acquisition Corporation and Company, and
the approval of the merger of Illusion Acquisition Corporation with and into
Company (the "MERGER"), and (ii) against approval of any proposal made in
opposition to or in competition with consummation of the Merger, including,
without limitation, any Acquisition Proposal or Superior Offer (each as defined
in the Merger Agreement) or any action or agreement that would result in a
breach in any respect of any covenant, representation or warranty or any other
obligation or agreement of Company under the Merger Agreement or of the
Shareholder under the Voting Agreement.
The Proxyholders may not exercise this proxy on any other matter. The
Shareholder may vote the Shares on all such other matters. The proxy granted by
the Shareholder to the Proxyholders hereby is granted as of the date of this
Irrevocable Proxy in order to secure the obligations of the Shareholder set
forth in Section 1 of the Voting Agreement, and is irrevocable and coupled with
an interest in such obligations and in the interests in Company to be purchased
and sold pursuant the Merger Agreement.
This proxy will terminate upon the termination of the Voting Agreement
in accordance with its terms. 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 until such time as this
proxy shall be terminated in accordance with its terms. Any obligation of the
undersigned hereunder shall be binding upon the successors and assigns of the
undersigned. The undersigned Shareholder authorizes the Proxyholders to file
this proxy and any substitution or revocation of substitution with the Secretary
of the Company and with any Inspector of Elections at any meeting of the
Shareholders of the Company.
This proxy is irrevocable and shall survive the insolvency, incapacity,
death or liquidation of the undersigned. Dated: March __, 2001.
CREST COMMUNICATIONS PARTNERS, L.P.
By: CREST COMMUNICATIONS HOLDINGS LLC,
its authorized representative
By: /s/ Xxxxx X. Xxxxxxxxxxx
--------------------------------------
Signature
Xxxxx X. Xxxxxxxxxxx, Managing Director
---------------------------------------
Name (and Title)
Shares of Company Common Stock beneficially
owned: 3,851,432
18
SHAREHOLDER:
The undersigned Shareholder joins this Agreement only with respect to the number
of shares beneficially owned by such shareholder that are set forth below. As
used in this Agreement, with respect to the undersigned Shareholder, the terms
"Shares" and "Subject Securities" shall refer only the number of shares set
forth below. In addition, all representations and warranties of the undersigned
shareholder as set forth in Section 3 of this Agreement shall refer only to the
number of shares beneficially owned by such shareholder that are set forth
below.
BOULDER VENTURES III, L.P.
SHAREHOLDER ADDRESS:
0000 Xxxxxx Xxxxx Xxxx
------------------------------------
Xxxxxx Xxxxx, Xxxxxxxx 00000
------------------------------------
By: /s/ Xxxxxx X. Xxxxx
---------------------------------- ------------------------------------
(sign here)
------------------------------------
Name: Xxxxxx X. Xxxxx TEL: (000) 000-0000
-------------------------------- -----------------------------
(please print)
Title: General Partner
-------------------------------
SHARES OF COMPANY COMMON STOCK FAX: (000) 000-0000
BENEFICIALLY OWNED: -----------------------------
1,549,595
-----------------
[SIGNATURE PAGE TO VOTING AGREEMENT]
19
EXHIBIT I
IRREVOCABLE PROXY
The undersigned Shareholder (the "SHAREHOLDER") of Illusion, Inc., a
Georgia corporation (the "COMPANY"), hereby irrevocably appoints and constitutes
the members of the Board of Directors of Merlin Electronics, Inc., a Minnesota
corporation ("MEI"), and each such Board member (collectively the
"PROXYHOLDERS"), the agents, 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 Company that
are listed below (the "SHARES"), and any and all other shares or securities
issued or issuable in respect thereof on or after the date hereof and prior to
the date this proxy terminates, to vote the Shares as follows: the agents and
proxies named above are empowered at any time prior to termination of this proxy
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, (i) in favor of adoption of the Agreement and Plan of Merger (the
"MERGER AGREEMENT") among MEI, Illusion Acquisition Corporation and Company, and
the approval of the merger of Illusion Acquisition Corporation with and into
Company (the "MERGER"), and (ii) against approval of any proposal made in
opposition to or in competition with consummation of the Merger, including,
without limitation, any Acquisition Proposal or Superior Offer (each as defined
in the Merger Agreement) or any action or agreement that would result in a
breach in any respect of any covenant, representation or warranty or any other
obligation or agreement of Company under the Merger Agreement or of the
Shareholder under the Voting Agreement.
The Proxyholders may not exercise this proxy on any other matter. The
Shareholder may vote the Shares on all such other matters. The proxy granted by
the Shareholder to the Proxyholders hereby is granted as of the date of this
Irrevocable Proxy in order to secure the obligations of the Shareholder set
forth in Section 1 of the Voting Agreement, and is irrevocable and coupled with
an interest in such obligations and in the interests in Company to be purchased
and sold pursuant the Merger Agreement.
This proxy will terminate upon the termination of the Voting Agreement
in accordance with its terms. 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 until such time as this
proxy shall be terminated in accordance with its terms. Any obligation of the
undersigned hereunder shall be binding upon the successors and assigns of the
undersigned. The undersigned Shareholder authorizes the Proxyholders to file
this proxy and any substitution or revocation of substitution with the Secretary
of the Company and with any Inspector of Elections at any meeting of the
Shareholders of the Company.
This proxy is irrevocable and shall survive the insolvency, incapacity,
death or liquidation of the undersigned. Dated: March __, 2001.
BOULDER VENTURES III, L.P.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Signature
Xxxxxx X. Xxxxx - General Partner
--------------------------------------
Name (and Title)
Shares of Company Common Stock beneficially
owned: 1,549,595 (for purposes of the Voting
Agreement)
20
SHAREHOLDER:
BOULDER VENTURES III (ANNEX), L.P.
SHAREHOLDER ADDRESS:
0000 Xxxxxx Xxxxx Xxxx.
------------------------------------
Xxxxxx Xxxxx, Xxxxxxxx 00000
------------------------------------
By: /s/ Xxxxxx X. Xxxxx
---------------------------------- ------------------------------------
(sign here)
------------------------------------
Name: Xxxxxx X. Xxxxx TEL: 000-000-0000
-------------------------------- -----------------------------
(please print)
Title: General Partner
-------------------------------
SHARES OF COMPANY COMMON STOCK FAX: 000-000-0000
BENEFICIALLY OWNED: -----------------------------
99,250
-----------------
[SIGNATURE PAGE TO VOTING AGREEMENT]
21
EXHIBIT I
IRREVOCABLE PROXY
The undersigned Shareholder (the "SHAREHOLDER") of Illusion, Inc., a
Georgia corporation (the "COMPANY"), hereby irrevocably appoints and constitutes
the members of the Board of Directors of Merlin Electronics, Inc., a Minnesota
corporation ("MEI"), and each such Board member (collectively the
"PROXYHOLDERS"), the agents, 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 Company that
are listed below (the "SHARES"), and any and all other shares or securities
issued or issuable in respect thereof on or after the date hereof and prior to
the date this proxy terminates, to vote the Shares as follows: the agents and
proxies named above are empowered at any time prior to termination of this proxy
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, (i) in favor of adoption of the Agreement and Plan of Merger (the
"MERGER AGREEMENT") among MEI, Illusion Acquisition Corporation and Company, and
the approval of the merger of Illusion Acquisition Corporation with and into
Company (the "MERGER"), and (ii) against approval of any proposal made in
opposition to or in competition with consummation of the Merger, including,
without limitation, any Acquisition Proposal or Superior Offer (each as defined
in the Merger Agreement) or any action or agreement that would result in a
breach in any respect of any covenant, representation or warranty or any other
obligation or agreement of Company under the Merger Agreement or of the
Shareholder under the Voting Agreement.
The Proxyholders may not exercise this proxy on any other matter. The
Shareholder may vote the Shares on all such other matters. The proxy granted by
the Shareholder to the Proxyholders hereby is granted as of the date of this
Irrevocable Proxy in order to secure the obligations of the Shareholder set
forth in Section 1 of the Voting Agreement, and is irrevocable and coupled with
an interest in such obligations and in the interests in Company to be purchased
and sold pursuant the Merger Agreement.
This proxy will terminate upon the termination of the Voting Agreement
in accordance with its terms. 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 until such time as this
proxy shall be terminated in accordance with its terms. Any obligation of the
undersigned hereunder shall be binding upon the successors and assigns of the
undersigned. The undersigned Shareholder authorizes the Proxyholders to file
this proxy and any substitution or revocation of substitution with the Secretary
of the Company and with any Inspector of Elections at any meeting of the
Shareholders of the Company.
This proxy is irrevocable and shall survive the insolvency, incapacity,
death or liquidation of the undersigned. Dated: March __, 2001.
BOULDER VENTURES III(ANNEX), L.P.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Signature
Xxxxxx X. Xxxxx - General Partner
--------------------------------------
Name (and Title)
Shares of Company Common Stock beneficially
owned: 99,350
22
SHAREHOLDER:
BANCBOSTON VENTURES, INC.
SHAREHOLDER ADDRESS:
000 Xxxxxxx Xxxxxx
------------------------------------
Xxxxxx, XX 00000
------------------------------------
By: /s/ M. Xxxxx XxXxxxxxx
---------------------------------- ------------------------------------
(sign here)
------------------------------------
Name: M. Xxxxx XxXxxxxxx TEL: (000) 000-0000
-------------------------------- -----------------------------
(please print)
Title: Vice President
-------------------------------
SHARES OF COMPANY COMMON STOCK FAX: (000) 000-0000
BENEFICIALLY OWNED: -----------------------------
2,482,064
-----------------
[SIGNATURE PAGE TO VOTING AGREEMENT]
23
EXHIBIT I
IRREVOCABLE PROXY
The undersigned Shareholder (the "SHAREHOLDER") of Illusion, Inc., a
Georgia corporation (the "COMPANY"), hereby irrevocably appoints and constitutes
the members of the Board of Directors of Merlin Electronics, Inc., a Minnesota
corporation ("MEI"), and each such Board member (collectively the
"PROXYHOLDERS"), the agents, 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 Company that
are listed below (the "SHARES"), and any and all other shares or securities
issued or issuable in respect thereof on or after the date hereof and prior to
the date this proxy terminates, to vote the Shares as follows: the agents and
proxies named above are empowered at any time prior to termination of this proxy
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, (i) in favor of adoption of the Agreement and Plan of Merger (the
"MERGER AGREEMENT") among MEI, Illusion Acquisition Corporation and Company, and
the approval of the merger of Illusion Acquisition Corporation with and into
Company (the "MERGER"), and (ii) against approval of any proposal made in
opposition to or in competition with consummation of the Merger, including,
without limitation, any Acquisition Proposal or Superior Offer (each as defined
in the Merger Agreement) or any action or agreement that would result in a
breach in any respect of any covenant, representation or warranty or any other
obligation or agreement of Company under the Merger Agreement or of the
Shareholder under the Voting Agreement.
The Proxyholders may not exercise this proxy on any other matter. The
Shareholder may vote the Shares on all such other matters. The proxy granted by
the Shareholder to the Proxyholders hereby is granted as of the date of this
Irrevocable Proxy in order to secure the obligations of the Shareholder set
forth in Section 1 of the Voting Agreement, and is irrevocable and coupled with
an interest in such obligations and in the interests in Company to be purchased
and sold pursuant the Merger Agreement.
This proxy will terminate upon the termination of the Voting Agreement
in accordance with its terms. 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 until such time as this
proxy shall be terminated in accordance with its terms. Any obligation of the
undersigned hereunder shall be binding upon the successors and assigns of the
undersigned. The undersigned Shareholder authorizes the Proxyholders to file
this proxy and any substitution or revocation of substitution with the Secretary
of the Company and with any Inspector of Elections at any meeting of the
Shareholders of the Company.
This proxy is irrevocable and shall survive the insolvency, incapacity,
death or liquidation of the undersigned. Dated: March __, 2001.
BANCBOSTON VENTURES, INC.
By: /s/ M. Xxxxx XxXxxxxxx
-----------------------------------
Signature
M. Xxxxx XxXxxxxxx Vice President
--------------------------------------
Name (and Title)
Shares of Company Common Stock beneficially
owned: 2,482,064
