EXHIBIT 99.2
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VOTING AGREEMENT AND IRREVOCABLE PROXY
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VOTING AGREEMENT AND IRREVOCABLE PROXY, dated as of October 21, 1998,
between LABTEC, INC., a Delaware corporation ("Labtec"), and [NAME OF
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SHAREHOLDER] (the "Shareholder"), [an individual] and a shareholder of Spacetec
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IMC Corporation, a Massachusetts corporation (the "Company"). Capitalized terms
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used but not otherwise defined in this Agreement shall have the meanings
respectively assigned to them in the Merger Agreement (as defined below).
W I T N E S S E T H:
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WHEREAS, the Shareholder beneficially owns certain shares of common stock,
par value $.01 per share (the "Company Common Stock"), of the Company (all such
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shares, together with all other shares of capital stock of the Company with
respect to which the Shareholder has beneficial ownership as of the date of this
Agreement or acquires beneficial ownership (including, without limitation,
through the exercise of stock options) on or before the termination of the
Merger Agreement are collectively referred to as the "Restricted Company
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Shares");
WHEREAS, concurrently with the execution and delivery of this Agreement,
the Company, SIMC Acquisition Corporation, a Delaware corporation ("Spacetec
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Subsidiary"), and Labtec are entering into an Agreement and Plan of Merger,
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dated the date hereof (as amended or modified from time to time, the "Merger
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Agreement"), providing for, among other things, the merger of Spacetec
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Subsidiary with and into Labtec (the "Merger");
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WHEREAS, Labtec may be required to incur substantial expenses in connection
with the performance of the Merger Agreement; and
WHEREAS, Labtec as a condition to its willingness to enter into the Merger
Agreement, has required the Shareholder (i) to grant Labtec an irrevocable proxy
with respect to the Restricted Company Shares on the terms and conditions
hereinafter set forth, and (ii) to provide Labtec with certain financial
protection in the event the Merger Agreement is terminated under certain
circumstances more fully described herein.
NOW, THEREFORE, the parties hereto agree as follows:
I. Voting. Until the termination of this Agreement, subject to the receipt of
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proper notice and the absence of a preliminary or permanent injunction or other
final order by any United States federal court or state court barring such
action, the Shareholder shall do the following:
(a) be present, in person or represented by proxy, at each meeting
(whether annual or special, and whether or not an adjourned or postponed
meeting) of the shareholders of the Company, however called, or in connection
with any written consent of shareholders of the Company, so that all Restricted
Company Shares then entitled to vote may be counted for the purposes of
determining the presence of a quorum at such meeting; and
(b) At each such meeting held before the Effective Time and with respect
to such written consent, vote (or cause to be voted) the Restricted Company
Shares (i) to approve the Merger Agreement and the Merger, and any action in
furtherance thereof, (ii) except as otherwise approved in writing in advance by
Labtec (which approval may be granted, withheld, conditioned or delayed in its
sole discretion), against any action or agreement that would result in any
breach of any representation, warranty, covenant or agreement of the Company,
Spacetec Subsidiary or the Shareholder contained in the Merger Agreement or this
Agreement, that would or could reasonably be expected to materially reduce the
benefits to Labtec of the Merger, (iii) except as otherwise approved in writing
in advance by Labtec (which approval may be granted, withheld, conditioned or
delayed in its sole discretion), against any Acquisition Proposal (other than
the Merger), and (iv) except as otherwise approved in writing in advance by
Labtec (which approval may be granted, withheld, conditioned or delayed in its
sole discretion) or as contemplated by the Merger Agreement, against any
amendment to the charter or by-laws of the Company.
I. Irrevocable Proxy. The Shareholder hereby revokes any and all
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previous proxies granted with respect to the Restricted Company Shares. By
entering into this Agreement, the Shareholder hereby grants a proxy (the
"Proxy") appointing Labtec (or any designee of Labtec) as the
Shareholders's lawful agent, attorney-in-fact and proxy, with full power of
substitution, for and in the Shareholder's name, (i) to attend any and all
meetings of shareholders of the Company, (ii) to vote in accordance with
the provisions of Section 1 hereof the Restricted Company Shares that the
Shareholder is then entitled to vote, (iii) to grant or withhold in
accordance with the provisions of Section 1 hereof all written consents
with respect to the Restricted Company Shares that the Shareholder is then
entitled to vote, and (iv) to represent and otherwise act for the
Shareholder in the same manner and with the same effect as if the
Shareholder were personally present, with respect to all matters subject to
Section 1 hereof. The Proxy shall be deemed to be a proxy coupled with an
interest, is irrevocable and is granted in consideration of Labtec's
entering into this Agreement and the Merger Agreement; provided, however,
that the Proxy shall be revoked upon termination of this Agreement in
accordance with its terms. The Shareholder hereby authorizes such agent,
attorney-in-fact and proxy to file the Proxy with the Clerk of the Company.
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II. Legending of Certificates; Nominee Shares. The Shareholder agrees
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to use its reasonable best efforts to submit to Labtec promptly following
the execution of this Agreement (or promptly following receipt of any
additional certificates representing any additional Restricted Company
Shares) all certificates representing the Restricted Company Shares so that
Labtec may note thereon a legend referring to the Proxy granted to it by
this Agreement. If any of the Restricted Company Shares beneficially owned
by the Shareholder are held of record by a brokerage firm in the "street
name" or in the name of any other nominee (a "Nominee," and as to the
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Restricted Company Shares, "Nominee Shares"), the Shareholder agrees that,
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upon written notice by Labtec requesting it, the Shareholder will within
five (5) days of the giving of such notice execute and deliver to Labtec a
limited power of attorney in such form as shall be reasonably satisfactory
to Labtec enabling Labtec to require the Nominee to grant to Labtec an
irrevocable proxy to the same effect as Section 1 hereof with respect to
the Nominee Shares held by such Nominee and to submit to Labtec the
certificates representing such Nominee Shares for notation of the foregoing
legend thereon.
III. Payment in Acquisition Proposal.
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A. If the Merger Agreement is terminated and, in
connection with an Acquisition Proposal as to which the Company is
obligated to pay Labtec the Parent Additional Termination Fee, the
Shareholder, either (i) within 90 days following the termination of
the Merger Agreement or (ii) thereafter to any Third Party with which
the Company had any discussions concerning a possible Acquisition
Proposal prior to the termination of the Merger Agreement, (A) sells
or otherwise in any way disposes of, in whole or in part, the
Restricted Company Shares to a Third Party (as defined in Section
6(b) hereof) in exchange for cash and/or securities having a value
per share (the "Third Party Purchase Price") in excess of $8.00 (as
adjusted for any stock dividend, stock split, combination,
recapitalization or similar transaction with respect to the capital
stock of the Company), and/or (B) otherwise as a result of the
consummation of the Acquisition Proposal receives cash and/or
securities or other consideration from the Company having a value per
share in excess of $8.00, the Shareholder shall, contemporaneously
with the completion of such sale or other transaction, pay or deliver
to Labtec an amount equal to (x) fifty percent (50%) of the amount by
which the Third Party Purchase Price and/or other consideration per
share received by the Shareholder exceeded $8.00 multiplied by (y)
the number of Restricted Company Shares so sold or disposed of and/or
with respect to which such other consideration was received. Any such
amount shall be paid, to the extent that the Shareholder received
cash, in cash, and to the extent that the Shareholder received
securities or other consideration, in such securities or other
consideration (the value of which shall be determined as provided in
Section 4(c) below), in each case in the same proportion as such cash
and other consideration was received by the Shareholder.
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B. If the Merger Agreement is terminated and, in
connection with an Acquisition Proposal as to which the Company is
obligated to pay Labtec the Parent Additional Termination Fee, the
Shareholder, either (i) within 90 days following the termination of
the Merger Agreement or (ii) thereafter to any Third Party with which
the Company had any discussions concerning a possible Acquisition
Proposal prior to the termination of the Merger Agreement, (A) sells
or otherwise in any way disposes of, in whole or in part, the
Restricted Company Shares to a Third Party for a Third Party Purchase
Price less than or equal to $8.00 (as adjusted for any stock
dividend, stock split, combination, recapitalization or similar
transaction with respect to the capital stock of the Company), and/or
(B) otherwise as a result of the consummation of the Acquisition
Proposal receives cash and/or securities or other consideration from
the Company having a value per share less than or equal to $8.00, the
Shareholder shall, contemporaneously with the completion of such sale
or other transaction, pay or deliver to Labtec an amount equal to (x)
the amount by which the Third Party Purchase Price and/or other
consideration per share received by the Shareholder exceeded the
closing price per share of Spacetec Stock on the last trading day
immediately prior to the date hereof (provided that such amount shall
not exceed $2.00) multiplied by (y) the number of Restricted Company
Shares so sold or disposed of and/or with respect to which such other
consideration was received; provided, however, that no such amount
shall be paid by the Shareholder to Labtec in connection with any
transaction in which the Company was merged with another corporation
and the Shareholder was required to sell or otherwise dispose of
Restricted Company Shares. Any such amount shall be paid, to the
extent that the Shareholder received cash, in cash, and to the extent
that the Shareholder received securities or other consideration, in
such securities or other consideration (the value of which shall be
determined as provided in Section 4(c) below), in each case in the
same proportion as such cash and other consideration was received by
the Shareholder.
C. The value of such securities or other consideration
shall be determined as of the date of the receipt thereof. If the
Shareholder and Labtec cannot, within fifteen (15) days of receipt of
such securities or other consideration, agree as to its value, the
Shareholder and Labtec will submit their respective valuations of
such securities to a mutually agreed upon third-party appraiser who
will either select one of the submitted valuations or establish a
valuation within the range of the submitted valuations, which
selection or establishment of a valuation shall be binding on the
parties hereto. All costs of the third-party appraiser shall be paid
by Labtec.
D. Any payment made by the Shareholder to Labtec
pursuant to Section 4(a) or 4(b) hereof shall be treated by the
Shareholder as a "selling expense" for all tax purposes which shall
either (i) reduce the
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Shareholder's "amount realized" in the transaction or (ii) be added
to the adjusted tax basis of disposed Restricted Company Shares and
shall, therefore, reduce the gain, if any, realized by the
Shareholder in connection with such disposition. Similarly, Labtec
agrees to treat such payments as a "selling expense" for all tax
purposes, provided that such treatment does not adversely affect
Labtec.
E. Notwithstanding anything to the contrary contained
in this Agreement, in no event shall the Shareholder be liable for
any payments to Labtec pursuant to this Agreement if such sale of
Restricted Company Shares occurs after 90 days following the
termination of the Merger Agreement, except in connection with an
Acquisition Proposal (i) with a Third Party with whom the Company had
any discussions concerning a possible Acquisition Proposal prior to
termination of the Merger Agreement and (ii) in connection with which
the Company was obligated to pay Labtec the Parent Additional
Termination Fee.
IV. Representations and Warranties of the Shareholder. The
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Shareholder hereby represents and warrants to Labtec that:
A. The Shareholder is the sole, true, lawful, record
and beneficial owner of the Restricted Company Shares; the Restricted
Company Shares are validly issued, fully paid and nonassessable, with
no personal liability attaching to the ownership thereof; and the
Shareholder has good and valid title to the Restricted Company
Shares, free and clear of any agreements, liens, adverse claims or
encumbrances whatsoever with respect to the ownership of or the right
to vote the Restricted Company Shares.
B. The Shareholder has the full right, power and
authority to enter into this Agreement, and this Agreement has been
duly and validly executed and delivered by the Shareholder.
C. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated
hereby do not and will not, with or without the giving of notice or
the passage of time, (i) violate any judgment, injunction or order of
any court, arbitrator or governmental agency applicable to the
Shareholder, or (ii) conflict with, result in the breach of any
provision of, constitute a default under, or give rise to a right of
termination, cancellation or acceleration of any right or obligation
of the Shareholder under, or require the consent of any third party
under, any agreement, instrument, judgment, order or decree to which
the Shareholder is a party or by which the Shareholder may be bound.
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D. This Agreement is the valid and binding Agreement
of the Shareholder, enforceable against the Shareholder in accordance
with its terms, except as enforcement may be limited by bankruptcy,
insolvency, moratorium or other similar laws relating to creditors'
rights generally.
E. Exhibit A attached hereto sets forth a list and description
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of all Restricted Company Shares and all options to purchase or
rights to subscribe for or otherwise acquire any securities of the
Company beneficially owned or owned of record by the Shareholder and,
except as set forth on Exhibit A, the Shareholder has no other
interest in or voting rights with respect to any securities of the
Company.
F. No investment banker, broker or finder is entitled
to a commission or fee from the Shareholder or the Company in respect
of this Agreement based upon any arrangement or agreement made by or
on behalf of the Shareholder.
V. Additional Covenants of the Shareholder. The Shareholder
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hereby covenants and agrees that:
A. The Shareholder will not enter into any
transaction, take any action, or by inaction permit any event to
occur, that would result in any of the representations or warranties
of the Shareholder herein contained not being true and correct at and
as of the time immediately after the occurrence of such transaction,
action or event.
B. Until the termination of this Agreement, the
Shareholder shall not, whether directly, indirectly, or through any
employee, agent or otherwise (i) solicit or initiate any inquiry or
submission of a proposal or an offer from any person, corporation,
unincorporated organization, partnership, association, joint venture,
trust or any other entity (a "Third Party") relating to any
Acquisition Proposal, or (ii) participate in any discussions or
negotiations regarding, or furnish to any other person any
information with respect to, or otherwise cooperate in any way or
assist or facilitate any Acquisition Proposal by any Third Party. The
Shareholder shall promptly advise Labtec of any communication
(including the identity of the person making such communication and
the terms thereof) the Shareholder may receive relating to any of the
foregoing.
C. Until the termination of this Agreement, the
Shareholder will at all times use his best efforts to prevent the
Company from
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taking any action in violation of the Merger Agreement, including,
but not limited to, any such action that would (i) amend or otherwise
change the Company's charter or by-laws, (ii) issue or sell or
authorize for issuance or sale any stock appreciation rights, stock
options (other than pursuant to stock option plans in effect on the
date hereof) warrants or additional shares of any class of capital
stock, including the Company Common Stock, or any securities
convertible into or exchangeable for shares of any class of capital
stock, (iii) declare, set aside, make, pay or accelerate the time for
declaration or payment, of, any dividend or other distribution with
respect to its capital stock, or (iv) redeem, purchase, or otherwise
acquire, directly or indirectly, any of its capital stock.
D. Until the termination of this Agreement, the
Shareholder shall not, directly or indirectly, (i) grant any proxies
or enter into any voting trust or other agreement or arrangement with
respect to the voting of any of the Restricted Company Shares, or
(ii) acquire, sell, assign, transfer, encumber or otherwise dispose
of, or enter into any contract, option or other arrangement or
understanding with respect to the direct or indirect acquisition or
sale, assignment, transfer, encumbrance or other disposition of, any
of the Restricted Company Shares during the term of this Agreement;
provided, however, that the Shareholder shall be permitted to sell
any of the Restricted Company Shares at any time following the
termination of Merger Agreement so long as such sale is made in an
open market transaction and there are no Acquisition Proposals then
outstanding. The Shareholder shall not seek or solicit any such
acquisition or sale, assignment, transfer encumbrance or other
disposition or any such contract, option or other arrangement or
assignment or understanding, and the Shareholder agrees to promptly
notify Labtec and provide all details requested by Labtec if the
Shareholder shall be approached or solicited, directly or indirectly,
by any Third Party with respect to any of the foregoing.
E. The Shareholder shall execute and deliver any
additional documents reasonably necessary or desirable, in the
reasonable opinions of both Labtec's counsel and the Shareholder's
counsel, to evidence the Proxy granted in Section 2 hereof with
respect to the Restricted Company Shares or otherwise implement and
effect the provisions of this Agreement.
F. In the event that the Shareholder serves as a
member of the Board of Directors of the Company, nothing in this
Agreement shall limit or restrict the Shareholder in acting in his
capacity as a director and exercising his fiduciary duties and
responsibilities, it being agreed and understood that this Agreement
shall apply to the Shareholder solely in his capacity as a
shareholder of the Company and shall not apply to the Shareholder's
actions, judgements or decisions as a director.
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VI. Represents and Warranties of Labtec. Labtec hereby represents
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and warrantsto the Shareholder that:
A. Labtec has all requisite power and authority to
enter into and perform all of its obligations under this Agreement.
The execution, delivery and performance of this Agreement and all of
the transactions contemplated hereby have been duly authorized by all
necessary action on the part of Labtec. This Agreement has been duly
executed and delivered by Labtec.
B. Neither the execution, delivery or performance of
this Agreement by Labtec nor the consummation of the transactions
contemplated herein will violate the organizational documents of
Labtec or will conflict with or result in the breach of any material
term, condition or provision of any instrument, indenture, contract,
lease or other document or understanding, oral or written, to which
Labtec is a party or is otherwise bound or affected in such manner as
to materially and adversely affect the business of Labtec.
VII. Termination. This Agreement shall terminate upon consummation
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of the Merger Agreement and may be terminated by any party hereto on
or after the day of the termination of the Merger Agreement in
accordance with its terms; provided, however, that Sections 4 and 8
through 14 hereof shall survive termination of this Agreement if this
Agreement is terminated at any time prior to the Closing.
VIII. Binding Effect; Assignment. This Agreement shall insure to
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the benefit of, and be binding upon, the parties and their respect
successors and permitted assigns. The Shareholder shall not assign
its rights or obligations hereunder without Labtec's consent which
will not be unreasonably withheld. Labtec may assign its rights and
obligations hereunder to an affiliate.
IX. Notices. All notices, requests, demands and other
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communications hereunder shall be in writing and shall be deemed
given if delivered personally or mailed by certified or registered
mail, postage prepaid, addressed as follows:
If to Labtec:
0000 Xxxxxxxxx Xxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: President
with copies to:
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Sun Capital Partners, Inc.
000 Xxxxx Xxxxxxx Xxxxx
Xxxx Xxxxx, Xxxxxx Floor
West Palm Beach, Florida 33401
Attention: Xxxx X. Xxxxx and Xxxxxx X. Xxxxxx
and
Xxxxxx Xxxxxx Flattau & Klimpl, LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
If to the Shareholder:
___________________________
___________________________
___________________________
___________________________
with a copy to:
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
High Street Tower
000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Any party may change the foregoing address from time to time by giving the other
party notice thereof.
I. Injunctive Relief; Remedies Cumulative.
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A. Each party hereto acknowledges that the other
party will be irreparably harmed and that there will be no adequate
remedy at law for a violation of any of the covenants or agreements
of such party that are contained in this Agreement. It is accordingly
agreed that, in addition to any other remedies that may be available
to the non-breaching party upon the breach by any other party of such
covenants and agreements, the non-breaching party shall have the
right to obtain injunctive relief to restrain any breach or
threatened breach of such covenants or agreements or otherwise to
obtain specific performance of any such covenants or agreements.
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B. No remedy conferred upon or reserved to any party
herein is intended to be exclusive of any other remedy, and every
remedy shall be cumulative and in addition to every other remedy
herein or now or hereafter existing at law, in equity or by statute.
II. Applicable Law. This Agreement and all amendments thereof
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shall be governed by, and construed and enforced in accordance with,
the laws of the Commonwealth of Massachusetts applicable to contracts
made and to be performed therein.
III. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed an original.
IV. Effect of Partial Invalidity. Whenever possible each
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provision of this Agreement shall be construed in such a manner as to
be effective and valid under applicable law. If any provision of this
Agreement or the application thereof to any party or circumstance
shall be prohibited by or invalid under applicable law, such
provisions shall be ineffective to the extent of such prohibition
without invalidating the remainder of such provisions or any other
provisions of this Agreement or the application of such provision to
the other party or other circumstances.
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IN WITNESS WHEREOF, this Agreement has been executed by the parties as of the
date first above written.
LABTEC, INC.
By:________________________________
Name:
Title:
___________________________________
[NAME OF SHAREHOLDER]
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EXHIBIT A
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Restricted Company Shares and Certain Other Rights
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