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EXHIBIT 10.2
OPTION AND VOTING AGREEMENT
OPTION AND VOTING AGREEMENT (the "Agreement"), dated as of July
30, 1997, among the undersigned stockholders (the "Stockholders") of Protection
One, Inc., a Delaware corporation (the "Company"), and Western Resources, Inc.,
a Kansas corporation ("Western").
WHEREAS, concurrently with the execution of this Contribution
Agreement, the Company and Western have entered into a Contribution Agreement
(as the same may be amended from time to time, the "Contribution Agreement"),
providing for, inter alia, the issuance by the Company and purchase by Western
(the "Share Issuance") of approximately 80.1% of the shares of Common Stock, par
value $ 0.01 per share, of the Company (the "Company Common Stock") on a
fully-diluted basis pursuant to the terms and conditions of the Contribution
Agreement, and setting forth certain representations, warranties, covenants and
agreements of the parties thereto in connection therewith; and
WHEREAS, in order to induce Western to enter into the
Contribution Agreement, the Stockholders wish to agree (i) to grant Western an
option to buy the Shares (as defined below) at the Option Price (as defined
below), (ii) to vote the Shares and any other such shares of Company Common
Stock so as to facilitate consummation of the Share Issuance, (iii) not to
transfer or otherwise dispose of any of the Shares, or any other shares of
Company Common Stock acquired hereafter and prior to the Expiration Date (as
defined below) and (iv) to deliver an irrevocable proxy to vote the Shares to
Western.
NOW, THEREFORE, for good and valuable considera tion, the
receipt, sufficiency and adequacy of which is hereby acknowledged, the parties
hereto agree as follows:
1. Representations of Stockholders. Each of the
Stockholders represents and warrants to Western that now and at all times during
the term of this Agreement (a) such Stockholder lawfully owns beneficially (as
such term is defined in the Securities Exchange Act of 1934, as amended (the
"1934 Act")) and of record each of the shares of Company Common Stock set forth
opposite such Stockholder's name on Exhibit A (such Stockholder's "Shares") free
and clear of all liens, pledges, claims, charges, security interests or other
encumbrances of any kind and, except for this Agreement, there are no options,
warrants or other rights, agreements, arrangements or commitments of any
character to which such Stockholder is a party relating to
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the pledge, disposition or voting of any shares of Company Common Stock and
there are no voting trusts or voting agreements with respect to such Shares, (b)
such Stockholder does not beneficially own any shares of Company Common Stock
other than such Shares and does not have any options, warrants or other rights
to acquire any additional shares of Company Common Stock or any security
exercisable for or convertible into shares of Company Common Stock, except for
options, warrants and/or other rights granted, awarded or issued pursuant to
Protection One Compensation and Benefit Plans, (c) it has full right, power and
authority to enter into, execute and deliver this Agreement and to perform fully
its obligations hereunder, and (d) the execution, delivery and performance of
this Agreement do not, and the consummation of the transactions contemplated
hereby will not, constitute or result in (i) if applicable, a breach or
violation of, or a default under, its certificate or by-laws or the comparable
governing instruments, (ii) a breach or violation of, or a default under, the
acceleration of any obligations or the creation of a lien on its assets (with or
without notice, lapse of time or both) pursuant to any agreement, lease,
contract, note, mortgage, indenture, arrangement or other obligation binding
upon it or any of its assets or any laws or governmental or non-governmental
permit or license to which it is subject or (iii) any change in the rights or
obligations of any party under any such agreement, lease, contract, note,
mortgage, indenture, arrangement or other obligation, including, without
limitation, any change in rights of reimbursement, termination, cancellation or
modification except, with respect to clauses (ii) and (iii), for any breach,
violation, default, acceleration, creation or change that, individually or in
the aggregate, is not reasonably likely to prevent, materially delay or
materially impair the ability of such Stockholder to consummate the transactions
contemplated by this Agreement. This Agreement has been duly executed and
delivered and constitutes the legal, valid and binding obligation of such
Stockholder in accordance with its terms.
2. The Option.
(a) Each Stockholder hereby grants to Western or its designee
(the "Holder") an unconditional, irrevocable option (the "Option") to purchase,
subject to the terms hereof, all but not fewer than all of the Shares and New
Shares (as defined in Section 7 hereof) at any time on or prior to the
Expiration Date if after the date of this Agreement a Takeover Proposal (as
hereinafter defined) has been made. "Takeover Proposal" means, with respect to
the Company, any proposal or offer, other than by Western or any
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Affiliate thereof, for, (i) any tender or exchange offer for 20% or more of the
equity of the Company, (ii) any merger, consolidation or other business
combination involving the Company or any of its Significant Subsidiaries, (iii)
any acquisition in any manner of 20% or more of the equity of, or 20% or more of
the assets of the Company or any of its Significant Subsidiaries, or (iv) any
solicitation of proxies or consents from the Company's stockholders relating to
directors or an acquisition of control of the Company. "Significant Subsidiary"
shall have the meaning specified in Rule 1-02 of Regulation S-X of the
Securities and Exchange Commission. Following the occurrence of a Takeover
Proposal of the type contemplated by clauses (i) or (ii) above, Holder may
purchase the Shares and New Shares at a purchase price per Share and New Share
equal to the purchase price per share of Company Common Stock proposed or
offered pursuant to the Takeover Proposal. Following the occurrence of a
Takeover Proposal of the type contemplated by clauses (iii) or (iv) above,
Holder may purchase the Shares and New Shares at a purchase price per share of
Company Common Stock equal to the closing price of a share of Company Common
Stock on the Nasdaq on the last trading day immediately prior to the Notice Date
(as defined below). The purchase price per share of Company Common Stock as
determined pursuant to the two preceding sentences is hereinafter referred to as
the "Option Price." If the Holder wishes to exercise the Option, it shall send
to the Stockholder a written notice (the date of which is referred to herein as
the "Notice Date") specifying (i) the total number of shares that the Holder
will purchase from such Stockholder pursuant to such exercise, which must be all
of the shares of Common Stock held thereby, and (ii) a place and date (a
"Closing Date") not earlier than three business days nor later than 10 business
days from the Notice Date for the closing of such purchase (a "Closing"). At
each Closing, the Holder shall pay to such Stockholder the aggregate purchase
price for the Shares or New Shares purchased pursuant to the exercise of the
Option in immediately available funds by a wire transfer to a bank account
designated by such Stockholder; provided that failure or refusal of such
Stockholder to designate such a bank account shall not preclude the Holder from
exercising the Option, as a whole or in part. At such Closing, simultaneously
with the payment of the aggregate Option Price by the Holder, such Stockholder
shall deliver to the Holder a certificate or certificates representing the
number of Shares or New Shares purchased by the Holder accompanied by duly
executed stock powers and, if the Option shall be exercised in part only, a new
Option evidencing the rights of the Holder to purchase the balance of the shares
purchasable hereunder.
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(b) Notwithstanding anything to the contrary contained in this
Agreement, in the event that the Holder shall exercise, in whole or in part, the
Option granted hereunder, and within 12 months after the Closing the Company
shall have entered into a definitive agreement with any person or entity,
including the Purchaser or any Subsidiary thereof, providing for implementation
of a Takeover Proposal (a "Takeover Transaction") which Takeover Transaction is
thereafter consummated, the Holder shall deliver to each Stockholder by wire
transfer in immediately available funds within three business days of the
consumma tion of such Takeover Transaction an amount equal to the product of (i)
the number of shares of Company Common Stock the Holder acquired from such
Stockholder upon exercise of the Option multiplied by (ii) the excess, if any,
of the Takeover Transaction Price (as defined below) over the Option Price. For
purposes of this Agreement "Takeover Transaction Price" shall mean the price per
share or the consideration per share received, directly or indirectly, by the
Holder in any Takeover Transaction in exchange for, or as holder of, any shares
of Company Common Stock beneficially owned by such Holder; provided that (A) if
the consideration received by the Holder in any such Takeover Transaction shall
be securities listed on a national securities exchange or automated quotation
system, the per share value of such consideration shall be equal to the closing
price per share reported by such exchange or automated quotation system on the
date such transaction is consummated or (B) if the consideration received by the
Holder in any such transaction shall be other than cash or the form specified in
clause (A), the per share value of such consideration shall be determined in
good faith as of the date such transaction is consummated by a nationally
recognized independent investment banking firm selected by such Stockholder and
reasonably acceptable to the Holder, which determination shall be conclusive for
all purposes of this Section 2(b).
(c) If at any time the Company shall (i) pay a dividend other
than the dividend permitted by the Contribution Agreement or otherwise make a
distribution to the holders of Company Common Stock, (ii) subdivide its out
standing shares of Common Stock into a larger number of shares of common stock
or combine its outstanding shares of Company Common Stock into a smaller number
of shares of Company Common Stock, (iii) reorganize its capital, reclassify its
capital stock, consolidate or merge with or into another entity or sell,
transfer or otherwise dispose of all or substantially all of its property,
assets or business to another entity or (iv) engage in any similar dilutive
transaction, the parties agree to adjust the number
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of Shares or New Shares or other securities or property subject to the Option as
necessary and equitable in order to ensure that Western shall receive, upon
exercise of the Option, the number of Shares or New Shares or other securities
or property which Western would have received in connection with or as a result
of such dividend, distribution or other transaction, after giving effect to any
taxes incurred by any Holder as a result of such transaction, if it had
exercised the Option immediately prior to (i) the record date for any such
dividend or other distribution or (ii) the effective time of any such other
transaction.
3. Agreement to Vote Shares; Grant of Irrevocable Proxy;
Agreement to Grant Further Proxies. During the term of this Agreement each of
the Stockholders shall vote such Stockholder's Shares and any New Shares, and
cause any holder of record of such Shares or New Shares to vote, (a) in favor of
adoption and approval of the Contribution Agreement and the Share Issuance at
every meeting of the stockholders of the Company at which such matters are
considered and at every adjournment or postponement thereof, (b) against any
action or agreement that could reasonably be expected to impede, interfere with
or otherwise materially adversely affect the Share Issuance or inhibit the
timely consummation of the Share Issuance, (c) against any action or agreement
that could reasonably be expected to result in a breach of any covenant,
representation or warranty or any other obligation of the Company under the
Contribution Agreement and (d) except for the Share Issuance and the
Contribution Agreement, against any merger, consolidation, business combination,
reorganization, recapitalization, liquidation or sale or transfer of any
material assets of the Company or its subsidiaries.
The undersigned, for consideration received, hereby appoints Xxxx
X. Xxxxxxxxx and Xxxxxxx X. Xxxxxxx and each of them its proxies, with power of
substitution and resubstitution, to vote all Shares and New Shares of the
Company owned by the undersigned at any meeting of stock holders of the Company,
and at any adjournment or post ponement thereof or to give consent with respect
to such Shares or New Shares (i) FOR approval and adoption of the Contribution
Agreement and the Share Issuance and (ii) AGAINST (x) any action or agreement
that could reasonably be expected to impede, interfere with or otherwise
materially adversely affect the Share Issuance or inhibit the timely
consummation of the Share Issuance, (y) any action or agreement that could
reasonably be expected to result in a breach of any covenant, representation or
warranty or any
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other obligation of the Company under the Contribution Agreement and (z) except
for the Share Issuance and the Contribution Agreement, any merger,
consolidation, business combination, reorganization, recapitalization,
liquidation or sale or transfer of any material assets of the Company or its
subsidiaries. This proxy is coupled with an interest, revokes all prior proxies
granted by the undersigned and is irrevocable until such time as this Agreement
terminates in accordance with its terms.
Each Stockholder further agrees to deliver to Western upon
request one or more additional proxies substantially in the form attached hereto
as Exhibit B, which proxy shall be irrevocable during the term of this Agreement
to the extent permitted under Delaware law.
4. No Voting Trusts. Each of the Stockholders shall not, and
shall not permit any entity under its control to, deposit any of their Shares or
New Shares in a voting trust or subject any of their Shares or New Shares to any
arrangement with respect to the voting of such Shares or New Shares (including,
without limitation, the granting of proxies) other than agreements entered into
with Western.
5. No Proxy Solicitations. Each of the Stockholders shall not,
and shall not permit any entity under such Stockholder's control to, (a) solicit
proxies or become a "participant" in a "solicitation" (as such terms are defined
in Regulation 14A under the 0000 Xxx) in opposition to or competition with the
consummation of the Share Issuance or otherwise encourage or assist any party in
taking or planning any action which could reasonably be expected to impede,
interfere with or otherwise materially adversely affect the Share Issuance or
inhibit the timely consummation of the Share Issuance in accordance with the
terms of the Contribution Agreement, (b) directly or indirectly initiate or
cooperate in a stockholders' vote or action by consent of the Company's
stockholders in opposi tion to or in competition with the consummation of the
Share Issuance, or (c) become a member of a "group" (as such term is used in
Section 13(d) of the 0000 Xxx) with respect to any voting securities of the
Company for the purpose of opposing or competing with the consummation of the
Share Issuance; provided that the foregoing shall not restrict any director or
officer of the Company from taking any action such director or officer
reasonably believes after consultation with outside counsel is necessary to
satisfy such director's or officer's fiduciary duty as a director or officer to
the Company or its stockholders.
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6. Transfer and Encumbrance. On or after the date hereof and
during the term of this Agreement, each of the Stockholders shall not transfer,
sell, offer, assign, exchange, pledge or otherwise dispose of or encumber any of
such Stockholder's Shares or New Shares or enter into any contract, option or
other arrangement with respect to any of the foregoing except that a Stockholder
may transfer Shares or New Shares held thereby to any partner of such
Stockholder so long as the transferee shall agree to be bound by this Agreement.
7. Additional Purchases. Each of the Stock holders shall not
purchase or otherwise acquire beneficial ownership of any shares of Company
Common Stock after the execution of this Agreement ("New Shares"), nor will any
Stockholder voluntarily acquire the right to vote or share in the voting of any
shares of Company Common Stock other than the Shares, unless such Stockholder
agrees to deliver to Western immediately after such purchase or acquisition an
irrevocable proxy substantially in the form attached hereto as Exhibit B with
respect to such New Shares. Each of the Stockholders also severally agrees that
any New Shares acquired or purchased by him or her shall be subject to the terms
of this Agreement to the same extent as if they constituted Shares.
8. Specific Performance. Each party hereto acknowledges that it
will be impossible to measure in money the damage to the other party if a party
hereto fails to comply with any of the obligations imposed by this Agree ment,
that every such obligation is material and that, in the event of any such
failure, the other party will not have an adequate remedy at law or damages.
Accordingly, each party hereto agrees that injunctive relief or other equitable
remedy, in addition to remedies at law or damages, is the appropriate remedy for
any such failure and will not oppose the granting of such relief on the basis
that the other party has an adequate remedy at law. Each party hereto agrees
that it will not seek, and agrees to waive any requirement for, the securing or
posting of a bond in connection with any other party's seeking or obtaining such
equitable relief.
9. Publicity. Each Stockholder, in its capacity as such, and not
as a director or officer of the Company, hereby agrees that it shall, when
acting in its capacity as a Stockholder of the Company and not as a director or
officer thereof, obtain the written permission of Western prior to issuing any
press release or otherwise making public announcements with respect to the
transactions contemplated by this Agreement and prior to making any
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filings with any third party and/or any governmental entity (including any
national securities exchange or interdealer quotation service) with respect
thereto, except as may be required by law.
10. Expenses. Each party shall bear its own expenses with respect
to the review, execution, delivery and performance of this Agreement.
11. Entire Agreement. This Agreement supersedes all prior
agreements, written or oral, among the parties hereto with respect to the
subject matter hereof and, together with the Contribution Agreement, contains
the entire agreement among the parties with respect to the subject matter
hereof. This Agreement may not be amended, supplemented or modified, and no
provisions hereof may be modified or waived, except by an instrument in writing
signed by all the parties hereto. No waiver of any provisions hereof by any
party shall be deemed a waiver of any other provisions hereof by any such party,
nor shall any such waiver be deemed a continuing waiver of any provision hereof
by such party.
12. Notices. All notices, requests, claims, demands or other
communications hereunder shall be in writing and shall be deemed given when
delivered personally, upon receipt of a transmission confirmation if sent by
facsimile or like transmission and on the next business day when sent by Federal
Express, Express Mail or other reputable overnight courier service to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
If to Western:
Western Resources, Inc.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
and Xxxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
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If to a Stockholder, to the address or facsimile number set forth
for such Stockholder on the signature page hereof.
13. Miscellaneous.
(a) THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL
RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH
THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICT OF LAW
PRINCIPLES THEREOF. The parties hereby irrevocably submit to the jurisdiction of
the courts of the State of Delaware and the Federal courts of the United States
of America located in the State of Delaware solely in respect of the interpreta
tion and enforcement of the provisions of this Agreement and in respect of the
transactions contemplated hereby, and hereby waive, and agree not to assert, as
a defense in any action, suit or proceeding for the interpretation or
enforcement hereof or of any such document, that it is not subject thereto or
that such action, suit or proceeding may not be brought or is not maintainable
in said courts or that the venue thereof may not be appropriate or that this
Agreement may not be enforced in or by such courts, and the parties hereto
irrevocably agree that all claims with respect to such action or proceeding
shall be heard and determined in such a Delaware State or Federal court. The
parties hereby consent to and grant any such court juris diction over the person
of such parties and over the subject matter of such dispute and agree that
mailing of process or other papers in connection with any such action or
proceeding in the manner provided in Section 13 or in such other manner as may
be permitted by law shall be valid and sufficient service thereof.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY
ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY
MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER
INTO THIS
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AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 13(a).
(b) The provisions of this Agreement shall be deemed severable
and the invalidity or unenforceability of any provision shall not affect the
validity or enforce ability or the other provisions hereof. If any provision of
this Agreement, or the application thereof to any person or any circumstance, is
invalid or unenforceable, (a) a suit able and equitable provision shall be
substituted therefor in order to carry out, so far as may be valid and enforce
able, the intent and purpose of such invalid or unenforce able provision and (b)
the remainder of this Agreement and the application of such provision to other
persons or circumstances shall not be affected by such invalidity or
unenforceability, nor shall such invalidity or unenforce ability affect the
validity or enforceability of such provision, or the application thereof, in any
other jurisdiction.
(c) This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
(d) This Agreement shall terminate upon the earliest to occur of
(i) the Closing Date (as defined in the Contribution Agreement), (ii) in the
event that the Contribution Agreement shall have been terminated prior to any
Takeover Proposal having been made, the termination date of the Contribution
Agreement; (iii) in the event that the Closing (as defined in the Contribution
Agreement) shall not have occurred and a Takeover Proposal shall have been made,
fifteen (15)days after the first notice to Western or publication of a Takeover
Proposal; and (iv) the date specified in a written agreement duly executed and
delivered by Western and each of the Stockholders (the earliest such date, the
"Expiration Date").
(e) Each party hereto shall execute and deliver such additional
documents as may be necessary or desirable to effect the transactions
contemplated by this Contribution Agreement.
(f) All Section headings herein are for convenience of reference
only and are not part of this Agreement, and no construction or reference shall
be derived therefrom.
(g) The obligations of the Stockholders set forth in this
Agreement shall not be effective or binding upon any
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Stockholder until after such time as the Contribution Agreement is executed and
delivered by Western, and the parties agree that there is not and has not been
any other agreement, arrangement or understanding between the parties hereto
with respect to the matters set forth herein.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first written above.
WESTERN RESOURCES, INC.
By:
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THE STOCKHOLDERS:
------------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Address: 0000 Xxxxxxx Xxxxxxx
Xxxxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Name: Xxxx X. Xxxxx
Address: 0000 X.X. Xxxxxx Xxxx.
Xxxxxxxx, Xxxxxx 00000
Facsimile: (000) 000-0000
------------------------------------------
Name: Xxxx X. Xxxx, III
Address: 0000 Xxxxxxx Xxxxxxx
Xxxxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Address: 0000 Xxxxxxx Xxxxxxx
Xxxxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
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------------------------------------------
Name: Xxx Xxxx, Ph.D.
Address: 0000 Xxxxx Xxxx Xx.
Xx Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Facsilile: (000) 000-0000
------------------------------------------
Name: Xxxxx X. Xxxxxx
Address: 00000 Xxxxxx Xxxxx
Xxxxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
PATRICOF & CO. VENTURES, INC.
By:
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
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(EXHIBIT A)
LIST OF STOCKHOLDERS OF
THE COMPANY
NAME # SHARES OF COMMON STOCK
---- ------------------------
Xxxxx X. Xxxxxxxxx, Xx 149,821
Xxxx X. Xxxxx 55,763
Xxxx X. Xxxx, III 78,462
Xxxxxx X. Xxxxxx 15,359
Xxx Xxxx 0
Xxxxx X. Xxxxxx 100
Patricof & Co. Ventures, Inc. 2,515,444
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(EXHIBIT B)
FORM OF PROXY
The undersigned, for consideration received, hereby appoints Xxxx
X. Xxxxxxxxx and Xxxxxxx X. Xxxxxxx and each of them his or her proxies, with
power of substitution and resubstitution, to vote all shares of Common Stock,
par value $0.01 per share (the "Common Stock"), of Protection One, Inc., a
Delaware corporation (the "Company"), owned by the undersigned at any meeting of
stockholders of the Company, and at any adjournment or postponement thereof or
to give consent with respect to such shares(i) FOR approval and adoption of the
Contribution Agreement, dated as of July 30, 1997 (the "Contribution
Agreement"), by and among the Company and Western Resources, Inc., a Kansas
corporation ("Western") providing for, inter alia, the issuance by the Company
and purchase by Western of shares of approximately 80.1% of the Common Stock on
a fully-diluted basis (the "Share Issuance"), and (ii) AGAINST (x) any action or
agreement that could reasonably be expected to impede, interfere with or
otherwise materially adversely affect the Share Issuance or inhibit the timely
consummation of the Share Issuance, (y) any action or agreement that could
reasonably be expected to result in a breach of any covenant, representation or
warranty or any other obligation of the Company under the Contribution Agreement
and (z) except for the Share Issuance and the Contribution Agreement, any
merger, consolidation, business combination, reorganization, recapitalization,
liquidation or sale or transfer of any material assets of the Company or its
subsidiaries. This proxy is coupled with an interest, revokes all prior proxies
granted by the undersigned and is irrevocable until such time as the Option and
Voting Agreement, dated as of July 30, 1997 among certain stockholders of the
Company, including the undersigned, and Western terminates in accordance with
its terms.
Dated , 1997
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(Name of Stockholder)
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(Signature of Stockholder)
