EXHIBIT 99.2
SHAREHOLDERS AGREEMENT
THIS SHAREHOLDERS AGREEMENT, dated as of August 10, 1999 (the
"Agreement"), is made and entered into by CELERITY SYSTEMS, INC., a Delaware
corporation (the "Parent"), FUTURETRAK MERGER CORP., a Delaware corporation and
a wholly-owned subsidiary of the Parent ("Merger Sub"), and the parties listed
on Schedule A (each party on Schedule A shall be referred to individually as a
"Shareholder" and collectively as the "Shareholders").
WITNESSETH:
WHEREAS, on the date hereof, the Parent, Merger Sub and FutureTrak
International, Inc., a Florida corporation (the "Company"), entered into an
Agreement and Plan of Merger (as such agreement may hereafter be amended,
restated or otherwise modified from time to time, the "Merger Agreement"),
pursuant to which each outstanding share of Company Common Stock will be
converted into and represent the right to receive one share of Parent Common
Stock and Merger Sub will be merged with and into the Company;
WHEREAS, set forth opposite each Shareholder's name on Schedule A is the
number of shares of Company Common Stock owned by such Shareholder; and
WHEREAS, the Shareholders are executing this Agreement as an inducement to
the Parent and Merger Sub to facilitate the Merger.
NOW, THEREFORE, in consideration of the foregoing and the representations,
warranties, covenants and agreements contained herein, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. DEFINITIONS. Capitalized terms used and not defined herein shall
have the respective meanings ascribed to them in the Merger Agreement. For
purposes of this Agreement:
(a) "Beneficially Own" or "Beneficial Ownership" with respect to
any securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), including pursuant to any agreement, arrangement
or understanding, whether or not in writing but excluding any shares deemed to
be beneficially owned by a Person as a result of the participation of such
Person in a "group" within the meanings of Section 13(d)(3) of the Exchange Act.
(b) "Merger" shall mean the merger contemplated by the Merger
Agreement.
(c) "Person" shall mean an individual, corporation, partnership,
joint venture, association, trust, unincorporated organization or other entity.
(d) "Termination Event " shall mean the termination of the Merger
Agreement in accordance with its terms.
2. SHAREHOLDER APPROVAL.
(a) Provided that a Termination Event has not occurred, each of
the Shareholders hereby, severally and not jointly and severally, agrees:
(i) as soon as is practical following the date hereof, to
use such influence as he may have by reason of his Beneficial Ownership of
shares of Company Common Stock ("Shares") to call a meeting of the Shareholders
of the Company or arrange for the execution of a consent by the holders of the
requisite majority of Shares (a "Shareholder Vote") in order to approve and
adopt the Merger Agreement and the Merger; and
(ii) to exercise any vote he may have as a Beneficial Owner
of Shares in a Shareholder Vote to approve the Merger Agreement and the Merger.
3. TERMINATION. All obligations of the Shareholders under this
Agreement shall terminate upon a Termination Event; PROVIDED that the foregoing
shall not affect the rights of the Parent or Merger Sub arising out of any
breach prior to such Termination Event.
4. COVENANTS, REPRESENTATIONS AND WARRANTIES OF EACH SHAREHOLDER. Each
Shareholder hereby, severally and not jointly and severally, represents and
warrants to the Parent and Merger Sub as follows:
(a) OWNERSHIP BY SHARES. Such Shareholder is (i) the record and
Beneficial Owner of, or (ii) the Beneficial Owner but not the record holder of,
the number of Shares in each such category set forth opposite the Shareholder's
name on Schedule A. As of the date hereof, the Shares set forth opposite such
Shareholder's name on Schedule A constitute all of the Shares owned of record or
Beneficially Owned by such Shareholder. Such Shareholder has sole power to issue
instructions with respect to the matters set forth in Section 2 hereof, sole
power of disposition, sole power of conversion, sole power to elect to dissent
to the Merger and sole power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of the Shares set forth opposite
such Shareholder's name on Schedule A, as the case may be, with no material
limitations, qualifications or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement.
(b) POWER; BINDING AGREEMENT. Such Shareholder has the legal
capacity, power and authority to enter into and perform all of such
Shareholder's obligations under this Agreement. The execution, delivery and
performance of this Agreement by such Shareholder will not violate any other
agreement to which such Shareholder is a party, including, without limitation,
any voting agreement, Shareholder's agreement or voting trust. This Agreement
has been duly and validly executed and delivered by such Shareholder and
constitutes a valid and binding agreement of such Shareholder, enforceable
against such Shareholder in accordance with its terms. There is no beneficiary
or holder of a voting trust certificate or other interest of any trust of which
such Shareholder is trustee whose consent is required for the execution and
delivery of this Agreement or the consummation by such Shareholder of the
transactions contemplated hereby. If such Shareholder is married and such
Shareholder's Shares constitute community property, this Agreement has been duly
authorized, executed and delivered by, and constitutes a valid and binding
agreement of, such Shareholder's spouse with the same effect and to the same
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extent as is applicable with respect to such Shareholder, enforceable against
such person in accordance with its terms.
(c) NO CONFLICTS. Except for filings under the Exchange Act (i)
no filing with, and no permit, authorization, consent or approval of, any state
or federal public body or authority is necessary for the execution of this
Agreement by the Shareholder and the consummation by such Shareholder of the
transactions contemplated hereby, except where the failure to obtain such
consent, permit, authorization, approval or filing would not interfere with such
Shareholder's ability to perform its obligations hereunder, and (ii) none of the
execution and delivery of this Agreement by such Shareholder, the consummation
by such Shareholder of the transactions contemplated hereby or compliance by
such Shareholder with any of the provisions hereof shall (A) conflict with or
result in any breach of any applicable organizational documents applicable to
such Shareholder, (B) result in a violation or breach of, or constitute (with or
without notice or lapse of time or both) a default (or give rise to any third
party right of termination, cancellation, material modification or acceleration)
under any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding, agreement
or other instrument or obligation of any kind to which such Shareholder is a
party or by which such Shareholder or any of such Shareholder's properties or
assets may be bound, or (C) violate any order, writ, injunction, decree,
judgment, order, statute, rule or regulation applicable to such Shareholder or
any of such Shareholder's properties or assets, in each such case except to the
extent that any conflict, breach, default or violation would not interfere with
the ability of such Shareholder to perform its obligations hereunder.
(d) NO ENCUMBRANCES. Except as required or permitted by Sections
2 and 4, the Shares of such Shareholder and the certificates representing such
Shares are now, and at all times during the term hereof will be, held by such
Shareholder, or by a nominee or custodian for the benefit of such Shareholder,
free and clear of all liens, claims, security interests, proxies, voting trusts
or agreements, understandings or arrangements or any other encumbrances
whatsoever.
(e) NO FINDER'S FEES. No broker, investment banker, financial
adviser or other person is entitled to any broker's, finder's, financial
adviser's or other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of such
Shareholder.
(f) RESTRICTION ON TRANSFER, PROXIES AND NON-INTERFERENCE. Prior
to the occurrence of a Termination Event, except as required by this Agreement,
the Shareholder shall not directly or indirectly without the consent of the
Parent: (i) offer for sale, sell, transfer, tender, pledge, encumber, assign or
otherwise dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the offer for sale, sale, transfer, tender,
pledge, encumbrance, assignment or other disposition of, any or all of such
Shareholder's Shares, or any interest therein, unless such Shareholder first
obtains from the assignee a proxy giving the Shareholder the right to vote such
Shares in favor of the Merger (ii) grant any proxies or powers of attorney,
deposit any shares into a voting trust or enter into a voting agreement with
respect to any Shares, or (iii) take any action that could have the effect of
preventing or disabling such Shareholder from performing such Shareholder's
obligations under this Agreement. Each of the Shareholders and the Company agree
that any purported transfer of such Shareholder's Shares or any interest therein
in violation of the Agreement shall be void AB INITIO and shall not be effected
on the books and records of the Company and that, in the event of any inquiry by
the Parent, Merger Sub or the Company, or any related proceeding, the
Shareholder shall have the burden of proving that any action described in this
Section 4(f) is in compliance with this Agreement.
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(g) WAIVER OF APPRAISAL RIGHTS. The Shareholder hereby waives any
rights of appraisal or rights to dissent from the Merger that the Shareholder
may have under the Florida Business Corporation Act or otherwise.
(h) SHAREHOLDER INTENTION TO RETAIN SHARES. Following his receipt
of Parent Shares in accordance with the Merger Agreement, the Shareholder has no
present plan to sell, exchange or otherwise dispose of such number of Parent
Shares as would cause the Merger to fail to qualify as a reorganization under
Section 368(a) of the Code.
5. STOP TRANSFER. Each Shareholder agrees with, and covenants to, the
Parent that prior to a Termination Event such Shareholder shall not request that
the Company register the transfer (book-entry or otherwise) of any certificate
or uncertificated interest representing any of such Shareholder's Shares, unless
such transfer is made in compliance with this Agreement.
6. ADJUSTMENT OF EXCHANGE RATIO. In the event that, subsequent to the
date of this Agreement, but prior to the Effective Time, the Shares shall have
been changed into a different number or a different class of shares as a result
of a stock split, reverse stock split, stock dividend, subdivision,
reclassification split, combination exchange, recapitalization or other similar
transaction, the Exchange Ratio shall be appropriately adjusted and the term
"Shares" shall be deemed to refer and include the Shares and any shares into
which or for which any or all of the Shares may be changed.
7. SHAREHOLDER CAPACITY. Except as the Agreement expressly provides
otherwise, no person executing this Agreement who is or becomes during the term
hereof a director or officer of the Company makes any agreement or understanding
herein in his or her capacity as such director or officer and nothing herein
shall limit or affect any action taken by such person in his or her capacity as
a director or officer. Each Shareholder signs solely in his or her capacity as
the record and beneficial owner of, or the trustee of a trust whose
beneficiaries are the beneficial owners of, such Shareholder's Shares.
8. SHAREHOLDERS' OBLIGATIONS. All obligations and liabilities of each
Shareholder under this Agreement shall be several and not joint and no
Shareholder shall have any liability for any obligations or liabilities under
this Agreement of any other Shareholder.
9. FURTHER ASSURANCES. From time to time, at the other parties'
reasonable request and without further consideration, each Shareholder and
Merger Sub and the Parent shall execute and deliver such additional documents
and take such other action as may be reasonably necessary or desirable to
consummate and make effective, in the most expeditious manner practicable, the
transactions contemplated by this Agreement.
10. MISCELLANEOUS.
(a) NOTICES. Any notice or other communication required or which
may be given hereunder shall be in writing and shall be delivered personally, by
facsimile transmission, telegraphed or telexed, or sent by certified,
registered, or express mail, postage prepaid, and shall be deemed given when so
delivered personally, successfully faxed, telegraphed or telexed, or if mailed,
two days after the date of mailing, as follows:
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(i) if to the Parent or Merger Sub, to:
Celerity Systems, Inc.
0000 Xxxxxxxxxxx Xxxx.
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Van Meter
with a copy to:
Squadron, Ellenoff, Plesent
& Xxxxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxx, Esq.
(ii) if to the Company or to any of the Shareholders, to:
FutureTrak International, Inc.
0000 Xxxx Xxxxxxx Xxxx., Xxxxx
Xxxxxxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xx. Xxxxx Xxxxxx
with a copy to:
Atlas Xxxxxxxx Trop
& Borkson P.A.
New River Center
000 Xxxx Xxx Xxxx Xxxxxxxxx
Xxxxx 0000
Xxxx Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
(b) ENTIRE AGREEMENT. This Agreement (including the Schedules
hereto) contains the entire agreement among the parties with respect to the
subject matter hereof and supersedes all prior agreements, written or oral, with
respect thereto.
(c) WAIVER; AMENDMENTS; SEPARABILITY. This Agreement may be
amended, modified, superseded, canceled, renewed or extended, and the terms and
conditions hereof may be waived, only by a written instrument signed by the
parties or, in the case of a waiver, by the party waiving compliance. No delay
on the part of any party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any waiver on the part of any party
of any right, power or privilege hereunder, nor any single or partial exercise
of any right, power or privilege hereunder, preclude any other or further
exercise thereof or the exercise of any other right,
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power or privilege hereunder. The rights and remedies herein provided are
cumulative and are not exclusive of any rights or remedies which any party may
otherwise have at law or in equity. If any provision of this Agreement is held
to be invalid or unenforceable, the balance of this Agreement shall remain in
effect.
(d) SURVIVAL. None of the representations and warranties of the
Shareholders contained in this Agreement shall survive the Closing. Except as
specifically set forth in this Agreement and the agreements and documents
specifically referred to herein, there are no representations or warranties,
express or implied, made by any party in connection with the transactions
contemplated by this Agreement.
(e) GOVERNING LAW. This Agreement shall be governed and construed
in accordance with the laws of the State of Delaware applicable to agreements
made and to be performed entirely within such State.
(f) NO ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties. Subject to the preceding sentence, this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective permitted successors and assigns.
(g) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(h) SCHEDULE. Schedule A to this Agreement is a part of this
Agreement as if set forth in full herein.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the date first written above.
CELERITY SYSTEMS, INC.
By: /s/ Xxxxxxx X. Van Meter
-------------------------
Name: Xxxxxxx X. Van Meter
Title: President/CEO
FUTURETRAK MERGER CORP.
By: /s/ Xxxxxxx X. Van Meter
-------------------------
Name: Xxxxxxx X. Van Meter
Title:
XXXXX XXXXXX
By: /s/ Xxxxx Xxxxxx
-------------------------
Xxxxx Xxxxxx
XXXXXX XXXXXX
By: /d/ Xxxxxx Xxxxxx
-------------------------
Xxxxxx Xxxxxx
XXXXXXX XXXXXXX
By: /s/ Xxxxxxx Xxxxxxx
-------------------------
Xxxxxxx Xxxxxxx
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XXXXXXX XXXXXXXXX
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------
Xxxxxxx Xxxxxxxxx
THE UNDERSIGNED HEREBY
ACKNOWLEDGES AND AGREES
TO BE BOUND BY THE PROVISIONS
OF SECTION 4(f) OF THE FOREGOING
AGREEMENT, AS OF THE DATE
WRITTEN ABOVE:
FUTURETRAK INTERNATIONAL, INC.
By: /s/ Xxxxx Xxxxxx
-----------------------------
Xxxxx Xxxxxx
Chief Executive Officer
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SCHEDULE A
SHAREHOLDER NO. OF SHARES
Xxxxx Xxxxxx 937,500
Xxxxxx Xxxxxx 937,500
Xxxxxxx Xxxxxxx 2,567,500
Xxxxxxx Xxxxxxxxx 2,189,000
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