Exhibit 99.3
FORM OF TOTAL
RESEARCH CORPORATION VOTING AGREEMENT
VOTING AGREEMENT, dated as of ___________, 2001 (the
"Agreement"), between the undersigned holder (the "Holder") of shares of the
common stock, $0.001 par value, of Total Research Corporation, a Delaware
corporation (the "Company"), and ▇▇▇▇▇▇ Interactive Inc. ("▇▇▇▇▇▇"), a
Delaware corporation.
RECITALS
The Company, ▇▇▇▇▇▇ and Total Merger Sub Inc., a Delaware
corporation and a direct, wholly owned subsidiary of ▇▇▇▇▇▇ ("Merger Sub"),
propose to enter into an Agreement and Plan of Merger dated the date hereof
(the "Merger Agreement"; capitalized terms not otherwise defined herein being
used herein as therein defined), pursuant to which Merger Sub would be merged
(the "Merger") with and into ▇▇▇▇▇▇, and each outstanding Total Share would
be converted into the right to receive ▇▇▇▇▇▇ Shares; and
The Holder is the beneficial owner of the number of Total
Shares and options or rights to acquire Total Shares (such securities and any
other securities of the Company hereafter acquired by the Holder, the "Subject
Securities") set forth on the signature page to this Agreement; and
As a condition of its entering into the Merger Agreement,
▇▇▇▇▇▇ has requested the Holder to agree, and the Holder has agreed, to enter
into this Agreement.
AGREEMENT
NOW, THEREFORE, the parties hereto, intending to be legally
bound hereby, agree as follows:
AGREEMENT TO VOTE SHARES. Prior to the Termination Date (as hereinafter
defined), at every meeting of the stockholders of the Company called with
respect to any of the following, and at every adjournment thereof, and on every
action or approval by written consent of the stockholders of the Company with
respect to any of the following, the Holder shall vote all Subject Securities
that are voting securities and that it beneficially owns at the time of any such
vote: (i) in favor of adoption of the Merger Agreement and (ii) against (w)
approval of any Total Alternative Transaction made in opposition to or in
competition with the Merger, (x) any merger (including, without limitation, a
Total Alternative Transaction), consolidation, sale of assets requiring
stockholder approval, reorganization or recapitalization of the Company, with
any other person other than ▇▇▇▇▇▇ or its affiliates, and (y) any liquidation or
winding up of the Company.
TRANSFER OF SECURITIES. From and after the date hereof until the conclusion
of the meeting at which the Company's stockholders vote on the adoption of the
Merger Agreement and the Holder votes in favor of such adoption (the "Meeting
Date"), the Holder will not effect a tender, sale, exchange, pledge, disposition
or other transfer or encumbrance (any of the foregoing, a "Sale") of any of the
Subject Securities to or in
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favor of any person, unless, prior to any such Sale, such person shall have
agreed in a writing, in form and substance reasonably acceptable to ▇▇▇▇▇▇, for
the benefit of and delivered to ▇▇▇▇▇▇, to be bound by all provisions of this
Agreement applicable to the Holder. Following the Meeting Date, the Holder shall
not consummate a Sale to or in favor of any person, unless prior to any such
Sale, such person shall have agreed in writing, in form and substance reasonably
acceptable to ▇▇▇▇▇▇, for the benefit of and delivered to ▇▇▇▇▇▇, to be bound by
the provisions of this Agreement.
NO OWNERSHIP INTEREST. Nothing contained in this Agreement shall be deemed
to vest in ▇▇▇▇▇▇ any direct or indirect ownership or incidents of ownership of
or with respect to the Subject Securities. All rights, ownership and economic
benefits of and relating to the Subject Securities shall remain and belong to
Holder, and ▇▇▇▇▇▇ shall have no authority to manage, direct, superintend,
restrict, regulate, govern or administer any of the policies or operations of
the Company or exercise any power or authority to direct the Holder in the
voting of any of the Subject Securities, except as otherwise expressly provided
herein.
RULE 145 PROVISIONS
(a) The Holder has been advised that the delivery of the
▇▇▇▇▇▇ Shares to the Holder pursuant to the Merger will be registered under the
Securities Act, pursuant to a registration statement on Form S-4. The Holder has
also been advised that at the time of the Total Stockholders Meeting, as to
Total he or she may be an "affiliate" under Rule 145(c) as defined in Rule 405
of the Rules and Regulations of the SEC under the Securities Act, although
nothing contained herein shall be construed as an admission of such fact.
(b) The Holder agrees not to offer, sell, transfer or
otherwise dispose of any ▇▇▇▇▇▇ Shares received in the Merger, except (i) at
such time as a registration statement under the Securities Act covering sales of
such ▇▇▇▇▇▇ Shares is effective and a prospectus is made available under the
Securities Act, (ii) within the limits, and in accordance with the applicable
provisions of, Rule 145(d) under the Securities Act, or (iii) in a transaction
which, in the opinion of counsel satisfactory to ▇▇▇▇▇▇, is not required to be
registered under the Securities Act; and acknowledges and agrees that ▇▇▇▇▇▇ is
under no obligation to register the sale, transfer or other disposition of
▇▇▇▇▇▇ Shares by the Holder or on behalf of the Holder;
(c) The Holder agrees that ▇▇▇▇▇▇ shall not be bound by any
attempted sale of any ▇▇▇▇▇▇ Shares received by the Holder in the Merger, and
▇▇▇▇▇▇' transfer agent shall be given appropriate stop transfer orders and shall
not be required to register any such attempted sale, unless the sale has been
effected in compliance with the terms of this Agreement; and further agrees that
the certificate representing the ▇▇▇▇▇▇ Shares to be received by Holder in the
Merger may be endorsed with a restrictive legend consistent with the terms of
this Agreement;
(d) The Holder acknowledges and agrees that the provisions
of subparagraphs (b) and (c) hereof also apply to the fullest extent permitted
by law to the ▇▇▇▇▇▇ Shares received in the Merger by (i) his or her spouse,
(ii) any of his or her relatives or relatives of his or her spouse occupying his
or her home, (iii) any trust or estate in which
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he or she, his or her spouse, or any such relative owns at least a 10%
beneficial interest or of which any of them serves as trustee, executor or in
any similar capacity, and (iv) any corporation or other organization in which
the undersigned, any affiliate of the undersigned, his or her spouse, or any
such relative owns at least 10% of any class of equity securities or of the
equity interest;
(e) In connection with the foregoing, ▇▇▇▇▇▇
acknowledges and agrees as follows:
(i) From and after the Effective Time, unless and until the Holder has
disposed of all the ▇▇▇▇▇▇ Shares received by it as Merger
Consideration, or such shares are permitted to be resold pursuant to
Rule 145(d)(3) under the Securities Act, ▇▇▇▇▇▇ shall use all
reasonable best efforts to make and keep "available adequate current
public information" (as those terms are understood and defined in Rule
144 under the Securities Act) with respect to ▇▇▇▇▇▇ and, upon any
reasonable request by such an affiliate, provide a statement as to such
availability. ▇▇▇▇▇▇ has filed, on a timely basis, all reports required
to be filed with the SEC under Section 13 of the Exchange Act during
the preceding 12 months.
(ii) ▇▇▇▇▇▇ agrees that the stop transfer instructions and legends
referred to above shall be terminated or removed if (A) one year shall
have elapsed from the date of the effective time of the Merger and the
provisions of Rule 145(d)(2) under the Securities Act are then
available to the undersigned or (B) the undersigned shall have
delivered to ▇▇▇▇▇▇ a copy of a letter from the staff of the SEC or an
opinion of counsel, in form and substance reasonably satisfactory to
▇▇▇▇▇▇, to the effect that such instructions and legends are not
required for the purposes of the Securities Act.
CERTAIN REPRESENTATIONS OF THE HOLDER. The Holder represents and warrants
to ▇▇▇▇▇▇ as follows:
AUTHORIZATION. The Holder has the power to execute, deliver and perform
this Agreement, and has taken all necessary action to authorize the execution,
delivery and performance by it of this Agreement. This Agreement has been duly
executed and delivered by the Holder and, assuming due and valid authorization,
execution and delivery by ▇▇▇▇▇▇, constitutes a valid and binding obligation of
the Holder, enforceable against the Holder in accordance with its terms (except
as such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws and
principles now or hereafter in effect, affecting creditors' rights generally).
GOVERNMENTAL AUTHORIZATION. The execution, delivery and performance by the
Holder of this Agreement and the consummation by the holder of the transactions
contemplated hereby do not require the Holder to obtain any consent of, or to
make any filing with, any Governmental Entity other than: (i) compliance with
any applicable requirements of ▇▇▇▇-▇▇▇▇▇; (ii) compliance with any applicable
requirements of the Exchange Act; and (iii) such other consents and filings
which, if not obtained or made, would not have a
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material adverse effect on the ability of the Holder to consummate the
transactions contemplated hereby or the ability of the parties to consummate the
Merger Agreement.
NON-CONTRAVENTION. The execution, delivery and performance by the Holder
of this Agreement and the consummation by the Holder of the transactions
contemplated hereby do not and will not, (i) contravene or conflict with any
organizational document of the Holder, (ii) contravene or conflict with, or
constitute a violation of, any provision of any law, regulation, judgment,
injunction, order or decree binding upon the Holder or any of its properties or
assets, (iii) with or without the giving of notice or passage of time or both,
constitute a breach or default under any agreement, contract or other instrument
binding upon the Holder or, to the Holder's knowledge, the Company, or (iv)
result in the creation or imposition of any Liens on the Subject Securities,
except with respect to the foregoing clauses (ii), (iii) or (iv), such
contraventions, conflicts, violations, breaches, defaults or Liens which would
not, individually or in the aggregate, be reasonably likely to materially and
adversely effect the ability of the Holder to consummate the transactions
contemplated hereby or the ability of ▇▇▇▇▇▇, the Company and Merger Sub to
consummate the Merger Agreement.
OWNERSHIP. The Holder is the sole, true, lawful record and beneficial
owner of the Subject Securities identified on the signature page hereto, and
there are no restrictions on voting rights or rights of disposition pertaining
to such Subject Securities.
ALL SECURITIES. The Subject Securities identified on the signature page
hereto are the only interests in the capital stock of the Company beneficially
owned by the Holder, and Holder has no other option to purchase or right to
subscribe for or otherwise acquire any securities of the Company and has no
other interest in or voting rights with respect to any other securities of the
Company.
DOCUMENTS DELIVERED. The Holder acknowledges having reviewed the Merger
Agreement and its attachments and that all reports, proxy statements and other
information with respect to ▇▇▇▇▇▇ as filed with the SEC were, prior to the
Holder's execution of this Agreement, available for inspection and copying at
the offices of the SEC and through readily available on-line services; and that
▇▇▇▇▇▇ delivered the following such documents to the Company, which were made
available to the Holder:
▇▇▇▇▇▇'▇ Annual Report on Form 10-K for the year ended June 30, 2000;
▇▇▇▇▇▇'▇ proxy statement for its Fiscal 2000 Annual Meeting of
Stockholders; and
▇▇▇▇▇▇'▇ Quarterly Report on Form 10-Q for the period ended March 31,
2001.
BINDING AGREEMENT. This Agreement shall be binding upon, and shall inure
to the benefit of, the Holder, and his heirs, estate, personal representatives
and permitted assigns and ▇▇▇▇▇▇ and its successors and permitted assigns.
PUBLICATION. The Holder hereby permits ▇▇▇▇▇▇, the Company and Merger Sub
to publish and disclose in the Joint Proxy Statement/Prospectus (including all
documents
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and schedules filed with the SEC) its identity and ownership of the capital
stock of the Company and the nature of its commitments, arrangements, and
understandings pursuant to this Agreement.
NOTICES. All notices and other communications given or made pursuant
hereto shall be in writing and shall be deemed to have been duly given or made
if and when delivered personally or by overnight courier or sent by electronic
transmission, with confirmation received, to the address or telecopy numbers
specified below:
If to the Holder, to the person at the address or the
telecopier number appearing on the signature page beneath the Holder's name.
If to ▇▇▇▇▇▇:
▇▇▇▇▇▇ Interactive Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ Beach LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
or to such other address or telecopy number as any party may
have furnished to the other parties in writing in accordance
herewith.
SPECIFIC PERFORMANCE. The parties hereto agree that irreparable harm would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with its specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any court of the United States or any state
thereof having jurisdiction, this being in addition to any other remedy to which
they are entitled at law or in equity.
AMENDMENT. (a) This Agreement may not be amended or modified, except by
an instrument in writing signed on behalf of each of the parties hereto.
This Agreement may not be waived by either party, except by an instrument
in writing signed on behalf of the party granting such waiver. The failure of
any party hereto to exercise any right, power or remedy provided under this
Agreement or otherwise available in respect hereof at law or in equity, or to
insist upon compliance by
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any other party hereto with its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof shall not constitute a
waiver by such party of its right to exercise any such or other right, power or
remedy or to demand such compliance.
This Agreement may not be assigned by any party without the prior written
consent of the other party, and any assignment without such consent shall be
void.
GOVERNING LAW/CONSENT OF JURISDICTION. This Agreement shall be governed by
and construed in accordance with the internal laws of the State of New York,
without regard to principles of conflict of laws. Each party hereto hereby
irrevocably submits to the jurisdiction of any New York State or Federal court
sitting in the City of New York in any action or proceeding arising out of or
related to this Agreement, and hereby irrevocably agrees that all claims in
respect of such action or proceeding may be heard and determined in such State
or Federal court. Each party hereto hereby irrevocably consents to the service
of process, which may be served in any such action or proceeding by certified
mail, return receipt requested, by delivering a copy of such process to such
party at its address specified in Section 8 or by any other method permitted by
law.
COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same agreement.
TERMINATION. (a) This Agreement shall terminate upon the earlier to occur
of (i) the Effective Time and (ii) the termination of the Merger Agreement
according to its terms.
Upon any termination of this Agreement as provided in this Section 14,
this Agreement shall thereupon become void and of no further force and effect,
and there shall be no liability in respect of this Agreement or of any
transactions contemplated hereby or by the Merger Agreement on the part of any
party hereto or any of its directors, officers, partners, stockholders,
employees, agents, advisors, representatives or affiliates; PROVIDED, HOWEVER,
that nothing herein shall relieve any party from any liability for such party's
willful breach of this Agreement; and PROVIDED FURTHER that nothing herein shall
limit, restrict, impair, amend or otherwise modify the rights, remedies,
obligations or liabilities of any person under any other contract or agreement,
including, without limitation, the Merger Agreement.
REMEDIES CUMULATIVE. All rights, powers and remedies provided under this
Agreement or otherwise available in respect hereof at law or in equity shall be
cumulative and not alternative, and the exercise of any thereof by any party
shall not preclude the simultaneous or later exercise of any other such right,
power or remedy by such party.
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IN WITNESS WHEREOF, this Agreement has been executed by or on- behalf of
each of the parties hereto, all as of the date first above written.
▇▇▇▇▇▇ INTERACTIVE INC.
By:
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Name:
Title:
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THE HOLDER:
By:
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Address:
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Number of Total Shares Beneficially Owned by the Holder:
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Rights to Acquire Total Shares Held by the Holder:
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