EXHIBIT 2.2
VOTING AGREEMENT
THIS VOTING AGREEMENT ("Agreement") is entered into as of April 22, 2002,
by and between CLARE, INC., a Massachusetts corporation (the "Company"), and
XXXXXX XXXXXX ("Stockholder").
RECITALS
A. Stockholder is a holder of record and the "beneficial owner" (within
the meaning of Rule 13d-3 under the Securities Exchange Act of 1934) of certain
shares of common stock of IXYS Corporation, a Delaware corporation ("Parent").
B. Parent, its wholly-owned subsidiary, Teacup Acquisition Corp., a
Massachusetts corporation ("Merger Sub"), and the Company are entering into an
Agreement and Plan of Merger and Reorganization of even date herewith (the
"Reorganization Agreement") which provides (subject to the conditions set forth
therein) for the merger of Merger Sub into the Company (the "Merger").
C. In the Merger, the outstanding shares of common stock of the Company
are to be converted into the right to receive shares of common stock of Parent.
D. In order to induce the Company to enter into the Reorganization
Agreement, Stockholder is entering into this Agreement.
AGREEMENT
The parties to this Agreement, intending to be legally bound, agree as
follows:
SECTION 1. CERTAIN DEFINITIONS
For purposes of this Agreement:
(a) The terms "PARENT ACQUISITION PROPOSAL" and "PARENT
ACQUISITION TRANSACTION" shall have the respective meanings assigned to
those terms in the Reorganization Agreement.
(b) "COMPANY COMMON STOCK" shall mean the common stock, par value
$.01 per share, of the Company.
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(c) An "IDENTIFIED TERMINATION" shall occur if:
(i) the Reorganization Agreement is terminated by Parent or
the Company pursuant to Section 8.1(b) or Section 8.1(e) of the
Reorganization Agreement at any time after a Parent Acquisition
Proposal has been disclosed, announced, commenced, submitted or
made; or
(ii) the Reorganization Agreement is terminated by the
Company pursuant to Section 8.1(g) of the Reorganization Agreement.
(d) Stockholder shall be deemed to "OWN" or to have acquired
"OWNERSHIP" of a security if Stockholder: (i) is the record owner of such
security; or (ii) is the "beneficial owner" (within the meaning of Rule
13d-3 under the Securities Exchange Act of 1934) of such security.
(e) "PARENT COMMON STOCK" shall mean the common stock, par value
$.01 per share, of Parent.
(f) "PERSON" shall mean any (i) individual, (ii) corporation,
limited liability company, partnership or other entity, or (iii)
governmental authority.
(g) "SUBJECT SECURITIES" shall mean: (i) all securities of Parent
(including all shares of Parent Common Stock and all options, warrants and
other rights to acquire shares of Parent Common Stock) Owned by
Stockholder as of the date of this Agreement; and (ii) all additional
securities of Parent (including all additional shares of Parent Common
Stock and all additional options, warrants and other rights to acquire
shares of Parent Common Stock) of which Stockholder acquires Ownership
during the period from the date of this Agreement through the Voting
Covenant Expiration Date.
(h) A Person shall be deemed to have a effected a "TRANSFER" of a
security if such Person directly or indirectly: (i) offers, sells,
pledges, encumbers, exchanges, grants an option with respect to, transfers
or otherwise disposes of such security or any interest in such security to
any Person other than Parent; (ii) enters into an agreement or commitment
contemplating the possible sale of, pledge of, encumbrance of, exchange
of, grant of an option with respect to, transfer of or other disposition
of such security or any interest therein to any Person other than Parent;
or (iii) reduces such Person's beneficial ownership of, interest in or
risk relating to such security.
(i) "VOTING COVENANT EXPIRATION DATE" shall mean the earlier of
the date upon which the Reorganization Agreement is validly terminated, or
the date upon which the Merger is consummated.
SECTION 2. TRANSFER OF SUBJECT SECURITIES AND VOTING RIGHTS
2.1 RESTRICTION ON TRANSFER OF SUBJECT SECURITIES. Subject to Section
2.3, during the period from the date of this Agreement through the Voting
Covenant Expiration Date, Stockholder shall not, directly or indirectly, cause
or permit any Transfer of any of the Subject Securities to be effected.
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2.2 RESTRICTION ON TRANSFER OF VOTING RIGHTS. During the period from the
date of this Agreement through the Voting Covenant Expiration Date, Stockholder
shall ensure that: (a) none of the Subject Securities is deposited into a voting
trust; and (b) no proxy is granted, and no voting agreement or similar agreement
is entered into, with respect to any of the Subject Securities, other than the
Proxy contemplated by Section 3.3 hereof.
2.3 PERMITTED TRANSFERS. Section 2.1 shall not prohibit a transfer of
Parent Common Stock by Stockholder (i) to any member of his immediate family, or
to a trust for the benefit of Stockholder or any member of his immediate family,
(ii) upon the death of Stockholder, or (iii) if Stockholder is a partnership or
limited liability company, to one or more partners or members of Stockholder or
to an affiliated corporation under common control with Stockholder; provided,
however, that a transfer referred to in this sentence shall be permitted only
if, as a precondition to such transfer, the transferee agrees in a writing,
reasonably satisfactory in form and substance to Parent, to be bound by the
terms of this Agreement (including execution of a Proxy in the form attached
hereto as Exhibit A).
SECTION 3. VOTING OF SHARES
3.1 VOTING COVENANT PRIOR TO TERMINATION OF REORGANIZATION AGREEMENT.
Stockholder hereby agrees that, prior to the earlier to occur of the valid
termination of the Reorganization Agreement or the consummation of the Merger,
at any meeting of the stockholders of Parent, however called, and in any written
action by consent of stockholders of Parent, unless otherwise directed in
writing by the Company, Stockholder shall cause the Subject Securities to be
voted:
(a) in favor of the issuance of Parent Common Stock and in favor
of any action in furtherance of the foregoing; and
(b) against any action or agreement that would result in a breach
of any representation, warranty, covenant or obligation of Parent in the
Reorganization Agreement; and
(c) against any action which is intended, or could reasonably be
expected, to impede, interfere with, delay, postpone, discourage or
adversely affect the Merger or any of the other transactions contemplated
by the Reorganization Agreement or this Agreement.
Prior to the earlier to occur of the valid termination of the Reorganization
Agreement or the consummation of the Merger, Stockholder shall not enter into
any agreement or understanding with any Person to vote or give instructions in
any manner inconsistent with clause "(a)", "(b)", or "(c)" of the preceding
sentence.
3.3 PROXY; FURTHER ASSURANCES.
(a) Contemporaneously with the execution of this Agreement: (i)
Stockholder shall deliver to the Company a proxy in the form attached to
this Agreement as Exhibit A, which shall be irrevocable to the fullest
extent permitted by law (at all times prior to
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the Voting Covenant Expiration Date) with respect to the shares referred
to therein (the "Proxy"); and (ii) Stockholder shall cause to be delivered
to the Company an additional proxy (in the form attached hereto as Exhibit
A) executed on behalf of the record owner of any outstanding shares of
Parent Common Stock that are owned beneficially (within the meaning of
Rule 13d-3 under the Securities Exchange Act of 1934), but not of record,
by Stockholder.
(b) Stockholder shall, at his or its own expense, perform such
further acts and execute such further proxies and other documents and
instruments as may reasonably be required to vest in the Company the power
to carry out and give effect to the provisions of this Agreement.
SECTION 4. WAIVER OF APPRAISAL RIGHTS
Stockholder 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 or any related
transaction that Stockholder or any other Person may have by virtue of any
outstanding shares of Parent Common Stock Owned by Stockholder.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
Stockholder hereby represents and warrants to the Company as follows:
6.1 AUTHORIZATION, ETC. Stockholder has the absolute and unrestricted
right, power, authority and capacity to execute and deliver this Agreement and
the Proxy and to perform his or its obligations hereunder and thereunder. This
Agreement and the Proxy have been duly executed and delivered by Stockholder and
constitute legal, valid and binding obligations of Stockholder, enforceable
against Stockholder in accordance with their terms, subject to (i) laws of
general application relating to bankruptcy, insolvency and the relief of
debtors, and (ii) rules of law governing specific performance, injunctive relief
and other equitable remedies.
6.2 NO CONFLICTS OR CONSENTS.
(a) The execution and delivery of this Agreement and the Proxy by
Stockholder do not, and the performance of this Agreement and the Proxy by
Stockholder will not: (i) conflict with or violate any law, rule,
regulation, order, decree or judgment applicable to Stockholder or by
which he or it or any of his or its properties is or may be bound or
affected; or (ii) result in or constitute (with or without notice or lapse
of time) any breach of or default under, or give to any other Person (with
or without notice or lapse of time) any right of termination, amendment,
acceleration or cancellation of, or result (with or without notice or
lapse of time) in the creation of any encumbrance or restriction on any of
the Subject Securities pursuant to, any contract to which Stockholder is a
party or by which Stockholder or any of his or its affiliates or
properties is or may be bound or affected.
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(b) The execution and delivery of this Agreement and the Proxy by
Stockholder do not, and the performance of this Agreement and the Proxy by
Stockholder will not, require any consent or approval of any Person.
6.3 TITLE TO SECURITIES. As of the date of this Agreement: (a)
Stockholder holds of record (free and clear of any encumbrances or restrictions)
the number of outstanding shares of Parent Common Stock set forth under the
heading "Shares Held of Record" on the signature page hereof; (b) Stockholder
holds (free and clear of any encumbrances or restrictions) the options, warrants
and other rights to acquire shares of Parent Common Stock set forth under the
heading "Options and Other Rights" on the signature page hereof; (c) Stockholder
Owns the additional securities of Parent set forth under the heading "Additional
Securities Beneficially Owned" on the signature page hereof; and (d) Stockholder
does not directly or indirectly Own any shares of capital stock or other
securities of Parent, or any option, warrant or other right to acquire (by
purchase, conversion or otherwise) any shares of capital stock or other
securities of Parent, other than the shares and options, warrants and other
rights set forth on the signature page hereof.
6.4 ACCURACY OF REPRESENTATIONS. The representations and warranties
contained in this Agreement are accurate in all respects as of the date of this
Agreement, will be accurate in all respects at all times through the Voting
Covenant Expiration Date and will be accurate in all respects as of the date of
the consummation of the Merger as if made on that date.
SECTION 7. ADDITIONAL COVENANTS OF STOCKHOLDER
7.1 FURTHER ASSURANCES. From time to time and without additional
consideration, Stockholder shall (at Stockholder's sole expense) execute and
deliver, or cause to be executed and delivered, such additional transfers,
assignments, endorsements, proxies, consents and other instruments, and shall
(at Stockholder's sole expense) take such further actions, as the Company may
request for the purpose of carrying out and furthering the intent of this
Agreement.
7.2 LEGENDS. If requested by the Company, immediately after the
execution of this Agreement (and from time to time upon the acquisition by
Stockholder of Ownership of any shares of Parent Common Stock prior to the
Voting Covenant Expiration Date), Stockholder shall cause each certificate
evidencing any outstanding shares of Parent Common Stock or other securities of
the Company Owned by Stockholder to be surrendered so that the transfer agent
for such securities may affix thereto a legend in the following form:
THE SECURITY OR SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
OFFERED, SOLD, PLEDGED, ENCUMBERED, EXCHANGED, GRANTED AN OPTION ON,
TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH THE TERMS
AND PROVISIONS OF A VOTING AGREEMENT DATED AS OF APRIL 22, 2002, AS IT MAY
BE AMENDED, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES
OF THE ISSUER.
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SECTION 8. MISCELLANEOUS
8.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations, warranties, covenants and agreements made by Stockholder in
this Agreement shall survive (i) the consummation of the Merger, (ii) any
termination of the Reorganization Agreement, and (iii) the Voting Covenant
Expiration Date.
8.2 EXPENSES. All costs and expenses incurred in connection with the
transactions contemplated by this Agreement shall be paid by the party incurring
such costs and expenses.
8.3 NOTICES. Any notice or other communication required or permitted to
be delivered to either party under this 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) to the
address or facsimile telephone number set forth beneath the name of such party
below (or to such other address or facsimile telephone number as such party
shall have specified in a written notice given to the other party):
if to Stockholder:
at the address set forth on the signature page hereof; and
if to Parent:
Clare, Inc.
00 Xxxxxx Xxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Chief Executive Officer
Facsimile No.: (000) 000-0000
8.4 SEVERABILITY. If any provision of this Agreement or any part of any
such provision is held under any circumstances to be invalid or unenforceable in
any jurisdiction, then (a) such provision or part thereof shall, with respect to
such circumstances and in such jurisdiction, be deemed amended to conform to
applicable laws so as to be valid and enforceable to the fullest possible
extent, (b) the invalidity or unenforceability of such provision or part thereof
under such circumstances and in such jurisdiction shall not affect the validity
or enforceability of such provision or part thereof under any other
circumstances or in any other jurisdiction, and (c) the invalidity or
unenforceability of such provision or part thereof shall not affect the validity
or enforceability of the remainder of such provision or the validity or
enforceability of any other provision of this Agreement. Each provision of this
Agreement is separable from every other provision of this Agreement, and each
part of each provision of this Agreement is separable from every other part of
such provision.
8.5 ENTIRE AGREEMENT. This Agreement, the Proxy and any other documents
delivered by the parties in connection herewith constitute the entire agreement
between the parties with respect to the subject matter hereof and thereof and
supersede all prior agreements and understandings between the parties with
respect thereto. No addition to or modification of any provision of this
Agreement shall be binding upon either party unless made in writing and signed
by both parties.
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8.6 ASSIGNMENT; BINDING EFFECT. Except as provided herein, neither this
Agreement nor any of the interests or obligations hereunder may be assigned or
delegated by Stockholder, and any attempted or purported assignment or
delegation of any of such interests or obligations shall be void. Subject to the
preceding sentence, this Agreement shall be binding upon Stockholder and his
heirs, estate, executors and personal representatives and his or its successors
and assigns, and shall inure to the benefit of Parent and its successors and
assigns. Without limiting any of the restrictions set forth in Section 2 or
Section 7 or elsewhere in this Agreement, this Agreement shall be binding upon
any Person to whom any Subject Securities are transferred. Nothing in this
Agreement is intended to confer on any Person (other than Parent and its
successors and assigns) any rights or remedies of any nature.
8.7 INDEMNIFICATION. Stockholder shall hold harmless and indemnify the
Company and the Company's affiliates from and against, and shall compensate and
reimburse the Company and the Company's affiliates 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 the Company or any of the Company's affiliates, or to
which the Company or any of the Company's affiliates otherwise becomes subject,
and that arises directly or indirectly from, or relates directly or indirectly
to, (a) any inaccuracy in or breach of any representation or warranty contained
in this Agreement, or (b) any failure on the part of Stockholder to observe,
perform or abide by, or any other breach of, any restriction, covenant,
obligation or other provision contained in this Agreement or in the Proxy.
8.8 SPECIFIC PERFORMANCE. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement or the
Proxy were not performed in accordance with its specific terms or were otherwise
breached. Stockholder agrees that, in the event of any breach or threatened
breach by Stockholder of any covenant or obligation contained in this Agreement
or in the Proxy, the Company shall be entitled (in addition to any other remedy
that may be available to it, including monetary damages) to seek and obtain (a)
a decree or order of specific performance to enforce the observance and
performance of such covenant or obligation, and (b) an injunction restraining
such breach or threatened breach. Stockholder further agrees that neither the
Company nor any other Person shall be required to obtain, furnish or post any
bond or similar instrument in connection with or as a condition to obtaining any
remedy referred to in this Section 8.8, and Stockholder irrevocably waives any
right he or it may have to require the obtaining, furnishing or posting of any
such bond or similar instrument.
8.9 NON-EXCLUSIVITY. The rights and remedies of the Company under this
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). Without limiting the generality of
the foregoing, the rights and remedies of the Company under this Agreement, and
the obligations and liabilities of Stockholder under this Agreement, are in
addition to their respective rights, remedies, obligations and liabilities under
common law requirements and under all applicable statutes, rules and
regulations. Nothing in this Agreement shall limit any of Stockholder's
obligations, or the rights or remedies of Parent, under any Affiliate Agreement
between the Company and Stockholder; and nothing in any such Affiliate Agreement
shall limit any of Stockholder's obligations, or any of the rights or remedies
of the Company, under this Agreement.
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8.10 GOVERNING LAW; VENUE.
(a) This Agreement and the Proxy shall be construed in accordance
with, and governed in all respects by, the laws of the State of Delaware
(without giving effect to principles of conflicts of laws).
(b) Any legal action or other legal proceeding relating to this
Agreement or the Proxy or the enforcement of any provision of this
Agreement or the Proxy may be brought or otherwise commenced in any state
or federal court located in the State of California. Stockholder:
(i) expressly and irrevocably consents and submits to the
jurisdiction of each state and federal court located in the State of
California in connection with any such legal proceeding;
(ii) agrees that service of any process, summons, notice or
document by U.S. mail addressed to him or it at the address set
forth on the signature page hereof shall constitute effective
service of such process, summons, notice or document for purposes of
any such legal proceeding;
(iii) agrees that each state and federal court located in the
State of California shall be deemed to be a convenient forum; and
(iv) agrees not to assert (by way of motion, as a defense or
otherwise), in any such legal proceeding commenced in any state or
federal court located in the State of California, any claim that
Stockholder is not subject personally to the jurisdiction of such
court, that such legal proceeding has been brought in an
inconvenient forum, that the venue of such proceeding is improper or
that this Agreement or the subject matter of this Agreement may not
be enforced in or by such court.
Nothing contained in this Section 8.10 shall be deemed to limit or
otherwise affect the right of Parent to commence any legal proceeding or
otherwise proceed against Stockholder in any other forum or jurisdiction.
(c) STOCKHOLDER IRREVOCABLY WAIVES THE RIGHT TO A JURY TRIAL IN
CONNECTION WITH ANY LEGAL PROCEEDING RELATING TO THIS AGREEMENT OR THE
PROXY OR THE ENFORCEMENT OF ANY PROVISION OF THIS AGREEMENT OR THE PROXY.
8.11 COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute one and the same instrument.
8.12 CAPTIONS. The captions contained in this Agreement are for
convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement.
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8.13 ATTORNEYS' FEES. If any legal action or other legal proceeding
relating to this Agreement or the enforcement of any provision of this Agreement
is brought against Stockholder, the prevailing party shall be entitled to
recover reasonable attorneys' fees, costs and disbursements (in addition to any
other relief to which the prevailing party may be entitled).
8.14 WAIVER. No failure on the part of the Company to exercise any power,
right, privilege or remedy under this Agreement, and no delay on the part of the
Company in exercising any power, right, privilege or remedy under this
Agreement, shall operate as a waiver of such power, right, privilege or remedy;
and no single or partial exercise of any such power, right, privilege or remedy
shall preclude any other or further exercise thereof or of any other power,
right, privilege or remedy. The Company shall not be deemed to have waived any
claim available to the Company arising out of this Agreement, or any power,
right, privilege or remedy of the Company under this Agreement, unless the
waiver of such claim, power, right, privilege or remedy is expressly set forth
in a written instrument duly executed and delivered on behalf of the Company;
and any such waiver shall not be applicable or have any effect except in the
specific instance in which it is given.
8.15 CONSTRUCTION.
(a) For purposes of this Agreement, whenever the context requires:
the singular number shall include the plural, and vice versa; the
masculine gender shall include the feminine and neuter genders; the
feminine gender shall include the masculine and neuter genders; and the
neuter gender shall include masculine and feminine genders.
(b) The parties agree that any rule of construction to the effect
that ambiguities are to be resolved against the drafting party shall not
be applied in the construction or interpretation of this Agreement.
(c) As used in this Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words
"without limitation."
(d) Except as otherwise indicated, all references in this
Agreement to "Sections" and "Exhibits" are intended to refer to Sections
of this Agreement and Exhibits to this Agreement.
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IN WITNESS WHEREOF, the Company and Stockholder have caused this Agreement
to be executed as of the date first written above.
CLARE, INC.
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------
XXXXXX XXXXXX
/s/ Xxxxxx Xxxxxx
--------------------------------------
Name:
Address: 0000 XXXXXXX XXXXXX
XXXXX XXXXX, XX 00000
Facsimile: (000) 000-0000
Shares Held of Record Options and Other Rights Additional Securities
Beneficially Owned
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EXHIBIT A
FORM OF IRREVOCABLE PROXY
The undersigned stockholder (the "Stockholder") of IXYS CORPORATION, a
Delaware corporation ("Parent"), hereby irrevocably (to the fullest extent
permitted by law) appoints and constitutes XXXXX XXXXXXXXX and XXXXX, INC., a
Massachusetts corporation (the "Company"), and each of them, the attorneys and
proxies of the Stockholder with full power of substitution and resubstitution,
to the full extent of the Stockholder's rights with respect to (i) the
outstanding shares of capital stock of Parent owned of record by the Stockholder
as of the date of this proxy, which shares are specified on the final page of
this proxy, and (ii) any and all other shares of capital stock of Parent which
the Stockholder may acquire on or after the date hereof. (The shares of the
capital stock of Parent referred to in clauses "(i)" and "(ii)" of the
immediately preceding sentence are collectively referred to as the "Shares.")
Upon the execution hereof, all prior proxies given by the Stockholder with
respect to any of the Shares are hereby revoked, and the Stockholder agrees that
no subsequent proxies will be given with respect to any of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted in
connection with the Voting Agreement, dated as of the date hereof, between the
Company and the Stockholder (the "Voting Agreement"), and is granted in
consideration of the Company entering into the Agreement and Plan of Merger and
Reorganization, dated as of the date hereof, among Parent, Teacup Acquisition
Corp. and the Company (the "Reorganization Agreement"). This proxy will
terminate on the Voting Covenant Expiration Date (as defined in the Voting
Agreement).
The attorneys and proxies named above will be empowered, and may exercise
this proxy, to vote the Shares at any time until the earlier to occur of the
valid termination of the Reorganization Agreement or the effective time of the
merger contemplated thereby (the "Merger") at any meeting of the stockholders of
Parent, however called, and in connection with any written action by consent of
stockholders of Parent:
(i) in favor of the issuance of shares of Parent Common Stock in
the Merger and in favor of any action in furtherance of the foregoing; and
(ii) against any action or agreement that would result in a breach
of any representation, warranty, covenant or obligation of Parent in the
Reorganization Agreement; and
(iii) against any action which is intended, or could reasonably be
expected to impede, interfere with, delay, postpone, discourage or
adversely affect the Merger or any of the other transactions contemplated
by the Reorganization Agreement.
The Stockholder may vote the Shares on all other matters not referred to
in this proxy, and the attorneys and proxies named above may not exercise this
proxy with respect to such other matters.
This proxy shall be binding upon the heirs, estate, executors, personal
representatives, successors and assigns of the Stockholder (including any
transferee of any of the Shares).
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If any provision of this proxy or any part of any such provision is held
under any circumstances to be invalid or unenforceable in any jurisdiction, then
(a) such provision or part thereof shall, with respect to such circumstances and
in such jurisdiction, be deemed amended to conform to applicable laws so as to
be valid and enforceable to the fullest possible extent, (b) the invalidity or
unenforceability of such provision or part thereof under such circumstances and
in such jurisdiction shall not affect the validity or enforceability of such
provision or part thereof under any other circumstances or in any other
jurisdiction, and (c) the invalidity or unenforceability of such provision or
part thereof shall not affect the validity or enforceability of the remainder of
such provision or the validity or enforceability of any other provision of this
proxy. Each provision of this proxy is separable from every other provision of
this proxy, and each part of each provision of this proxy is separable from
every other part of such provision.
Dated: April 22, 2002
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
Number of shares of common stock of
Parent owned of record as of the date
of this proxy:
6,686,310
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