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EXHIBIT 102
VOTING AGREEMENT
VOTING AGREEMENT, dated as of April 29, 1999 (this "Agreement"), between
BOX HILL SYSTEMS CORP., a New York corporation ("Parent"), and _________________
(the "Holder").
WITNESSETH:
WHEREAS, Parent, BH ACQUISITION CORP., a Delaware corporation and a
wholly-owned subsidiary of Parent ("Purchaser"), and ARTECON, INC., a Delaware
corporation (the "Company"), propose to enter into an Agreement and Plan of
Merger to be dated as of the date hereof (the "Merger Agreement"; capitalized
terms used herein and not otherwise defined shall have the meanings ascribed to
them in the Merger Agreement), pursuant to which Purchaser will be merged with
and into the Company (the "Merger"), and each outstanding share of Company
Common Stock and Company Preferred Stock (collectively, the "Company Capital
Stock") will be converted into Parent Common Stock as described in the Merger
Agreement; and
WHEREAS, the Holder, individually or as trustee or custodian, is the
beneficial owner of the number and class of shares of Company Capital Stock
(including rights to acquire Company Capital Stock) set forth opposite the
Holder's name on Schedule I to this Agreement (such shares, along with all other
shares of capital stock of the Company acquired by Holder subsequent to the date
hereof, are referred to herein as the "Subject Shares"); and
WHEREAS, as a condition of its entering into the Merger Agreement,
Parent has requested that the Holder agree, and the Holder has agreed, among
other things, (i) to vote the Subject Shares and to grant Parent an irrevocable
proxy to vote the Subject Shares with respect to the Merger Agreement and the
Merger and (ii) to make certain payments to Parent, upon the terms and subject
to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
representations, agreements and covenants hereinafter set forth, and intending
to be legally bound hereby, the parties hereto hereby agree as follows:
Section 1. Agreement to Vote Shares. (a) Holder agrees that, prior to
the Expiration Date (as defined in Section 7), at every annual or special
meeting of the stockholders of the Company and at every continuation or
adjournment thereof, and on every action or approval by written consent of the
stockholders of the Company in lieu of any such meeting, in which in either case
the Merger Agreement and/or the Merger are being considered or voted on, the
Holder shall cause the Subject Shares to be voted in favor of the approval and
adoption of the Merger Agreement and approval of the Merger and in favor of any
matter that could reasonably be expected to facilitate the Merger. Prior to the
Expiration Date, the Holder shall not enter into any agreement or understanding
with any Person to vote or give instructions in any manner inconsistent with the
preceding sentence. The Holder may vote the Subject Shares on all other matters.
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(b) No person executing this Agreement who is or becomes during
the term hereof a director of the Company, or any successor thereof, makes any
agreement or understanding herein in his or her capacity as such director. The
Holder signs solely in his or her capacity as the owner of the Subject Shares.
Section 2. Irrevocable Proxy. Concurrently with the execution of this
Agreement, the Holder is delivering to Parent a proxy with respect to the
Subject Shares in the form attached hereto as Exhibit A, which shall be
irrevocable to the full extent permitted by law.
Section 3. No Solicitation. Except as set forth in the next sentence of
this Section 4, Holder covenants and agrees that, during the period commencing
on the date of this Voting Agreement and ending on the Expiration Date, Holder
shall not directly or indirectly, and shall not authorize or permit any
Affiliate of such Holder, directly or indirectly, to (a) solicit, initiate or
encourage (including by way of furnishing non-public information) the submission
or making or announcement of any Company Acquisition Transaction, (b) take any
other action to facilitate any inquiries or the making of any proposal to effect
a Company Acquisition Transaction, (c) approve, endorse or recommend any Company
Acquisition Transaction, (d) enter into any letter of intent or similar document
or any contract or other agreement contemplating or otherwise relating to any
Company Acquisition Transaction, (e) enter into discussions or negotiate with
any Person regarding a Company Acquisition Transaction, or (f) or authorize or
permit any of the Affiliates of Holder to take any such actions set forth in
clauses (a) through (e) above. The foregoing provisions shall not prevent Holder
from acting in accordance with Holder's fiduciary duties as a director or
officer of the Company, provided Holder complies with the provisions of Section
5.3 of the Merger Agreement. Holder shall immediately cease any existing
discussions with any Person that relate to any Company Acquisition Transaction.
Section 4. Representations and Warranties of the Holder. The Holder
hereby represents and warrants to Parent that:
(a) this Agreement has been duly executed and delivered by the
Holder and is the legal, valid and binding obligation of the Holder;
(b) no consent of any Governmental Entity, beneficiary,
co-trustee or other Person is necessary for the execution, delivery and
performance of this Agreement by the Holder;
(c) the Holder owns the Subject Shares free and clear of any Lien
other than this Agreement and does not own, directly or indirectly, any
other shares of Company Capital Stock or any option, warrant or other
right to acquire any shares of Company Capital Stock, other than those
set forth on Schedule I;
(d) the Holder has the present power and right to vote all of the
Subject Shares; and
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(e) except as provided herein, the Holder has not (i) granted any
power-of-attorney or other authorization or interest with respect to any
of the Subject Shares, (ii) deposited any of the Subject Shares into a
voting trust, or (iii) entered into any voting agreement or other
arrangement with respect to any of the Subject Shares.
Section 5. Representations and Warranties of Parent. Parent hereby
represents and warrants to the Holder that:
(a) this Agreement has been duly executed and delivered by
Parent, and is the legal, valid and binding obligation of Parent; and
(b) no consent of any Governmental Entity, beneficiary,
co-trustee or other Person is necessary for the execution, delivery and
performance of this Agreement by Parent.
Section 6. Covenants of the Holder. The Holder hereby agrees and
covenants that:
(a) during the period between the date hereof and the Expiration
Date, any shares of capital stock of the Company (including, without
limitation, the Company Common Stock) that the Holder purchases or with
respect to which the Holder otherwise acquires beneficial ownership
(including by reason of stock dividends, split-ups, recapitalizations,
combinations, exchanges of shares or the like) shall be considered
Subject Shares and subject to each of the terms and conditions of this
Agreement; and
(b) during the period between the date hereof and the Expiration
Date, Holder shall not cause or permit any Transfer (as defined below)
of any of the Subject Shares to be effected unless each Person to which
any of such Subject Shares, or any interest in any of such Subject
Shares, is or may be transferred shall have: (i) executed a counterpart
of this Voting Agreement and proxy in the form attached hereto as
Exhibit A; and (ii) agreed to hold such Subject Shares (or interest in
such Subject Shares) subject to all terms and provisions of this Voting
Agreement. A Person shall have been deemed to have effected a "Transfer"
of such security if such Person, directly or indirectly, (i) sells,
pledges, encumbers, grants an option with respect to, transfers or
disposes of such security or any interest in such security, or (ii)
enters into an agreement or commitment contemplating the grant of an
option with respect to or sale, pledge, encumbrance, transfer or
disposition of such security or any interest therein.
(c) during the period between the date hereof and the Expiration
Date, Holder shall ensure that (i) none of the Subject Shares is
deposited in a voting trust; and (ii) no proxy is granted, and no voting
agreement or similar agreement is entered into, with respect to any of
the Subject Shares.
(d) immediately after execution of this Voting Agreement, Holder
shall instruct the Company to cause each certificate of Holder
evidencing the Subject Shares to bear a legend in substantially the
following form:
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THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
SOLD, EXCHANGED OR OTHERWISE TRANSFERRED OR DISPOSED OF
EXCEPT IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE
VOTING AGREEMENT DATED APRIL 29, 1999, AS IT MAY BE
AMENDED, EXECUTED BY THE REGISTERED HOLDER OF THIS
CERTIFICATE, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL
EXECUTIVE OFFICES OF THE ISSUER.
(e) subject to the consummation of the Merger and effective
immediately prior to the Effective Time, to (i) accept, in exchange for
such Holder's shares of Company Preferred Stock, the consideration to
which such Holder is entitled pursuant to Section 2.5(c) of the Merger
Agreement, and (ii) waive such Holder's right to receive any amounts for
such shares of Company Preferred Stock to which Holder would have
otherwise been entitled under Section 2(d)(i) of Article IV of the
Company's Amended and Restated Certificate of Incorporation, as in
effect on the date hereof.
Section 7. Termination. This Agreement shall terminate on the earlier of
(a) the Effective Time, (b) at any time upon written notice by Parent to the
Holder terminating this Agreement, and (c) the date on which the Merger
Agreement is validly terminated (such earlier date being referred to herein as
the "Expiration Date").
Section 8. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, telecopy or
by registered or certified mail (postage prepaid, return receipt requested) or
by overnight courier to the respective parties at the following addresses (or at
such other address for a party as shall be specified in a notice given in
accordance with this Section 8):
if to Parent:
BOX HILL SYSTEMS CORP.
000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxx
with a copy to:
Xxxxxxx, Xxxxxxxxx LLP
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
if to the Holder:
--------------------------
--------------------------
--------------------------
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with a copy to:
Xxxxxx Godward LLP
0000 Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Telecopier No: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq.
Section 9. Amendments; No Waivers. (a) Any provision of this Agreement
may be amended or waived prior to the Expiration Date if, and only if, such
amendment or waiver is in writing and signed, in the case of an amendment, by
Parent and the Holder or in the case of a waiver, by the party against whom the
waiver is to be effective.
(b) No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
Section 10. Expenses. All costs and expenses incurred in connection with
this Agreement shall be paid by the party incurring such cost or expense.
Section 11. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; and with respect to the Holder, his or her
respective heirs, legal representatives and permitted successors and assigns,
provided, that no party may assign, delegate or otherwise transfer any of its
rights or obligations under this Agreement without the prior written consent of
the other party hereto except that Parent may assign all or any of its rights to
any Affiliate thereof.
Section 12. Non-Survival of Representations and Warranties. All
representations, warranties and agreements made by Holder and Parent in this
Voting Agreement shall promptly terminate upon the Expiration Date.
Section 13. Indemnification. Without in any way limiting any of the
rights or remedies otherwise available to Parent, Holder shall hold harmless and
indemnify Parent from and against any damages suffered or incurred by Parent and
that arise from any breach of any representation, warranty or agreement of
Holder contained herein.
Section 14. Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed an original, but all of which taken
together shall constitute one and the same agreement.
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Section 15. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York governing
agreements made wholly within the State of New York, without reference to the
principles of conflict of laws.
Section 16. Jury Trial Waiver. EACH PARTY HERETO HEREBY WAIVES ALL
RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING INSTITUTED BY EITHER OF THEM
AGAINST THE OTHER WHICH PERTAINS DIRECTLY OR INDIRECTLY TO THIS AGREEMENT, ANY
ALLEGED TORTIOUS CONDUCT BY ANY PARTY, OR IN ANY WAY, DIRECTLY OR INDIRECTLY,
ARISES OUT OF OR RELATES TO THE RELATIONSHIP AMONG THE PARTIES HERETO.
Section 17. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that, in addition to any
remedy to which they are entitled at law or in equity, the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions of this Agreement without
the need to post a bond or prove special damages.
Section 18. Interpretation. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement. When a reference is
made in this Agreement to a Section, such reference shall be to a Section of
this Agreement unless otherwise indicated. Whenever the words "include,"
"includes" or "including" are used in this Agreement they shall be deemed to be
followed by the words "without limitation." The phrases "the date of this
Agreement," "the date hereof," and terms of similar import, unless the context
otherwise requires, shall be deemed to refer to April 29, 1999.
Section 19. Entire Agreement. This Agreement and the related irrevocable
proxy constitutes the entire agreement between the parties with respect to the
subject matter hereof and supersedes all prior written and oral and all
contemporaneous agreements and understandings with respect to the subject matter
hereof. Each party acknowledges and agrees that no other party hereto makes any
representations or warranties, whether express or implied, other than the
express representations and warranties contained herein.
Section 20. Severability. If any term or other provision of this
Agreement is determined to be invalid, illegal or incapable of being enforced by
any rule of law, or public policy, all other conditions and provisions of this
Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated herein is not
affected in any manner materially adverse to any party hereto. Upon such
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the parties hereto shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as
possible in a mutually acceptable manner.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement, or caused this Agreement to be duly executed and delivered by their
respective authorized officers, as of the day and year first above written.
BOX HILL SYSTEMS CORP.
By: ____________________________________
Name:
Title:
THE HOLDER
By: ____________________________________
Name:
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SCHEDULE I
HOLDER NUMBER OF SUBJECT SHARES OPTIONS, WARRANTS, ETC.
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EXHIBIT A
FORM OF IRREVOCABLE PROXY
IRREVOCABLE PROXY
The undersigned stockholder of ARTECON, INC., a Delaware corporation
(the "Company"), hereby irrevocably (to the full extent permitted by law)
appoints and constitutes Xxxxxxxx Xxxxxxxx of BOX HILL SYSTEMS CORP., a New York
corporation ("Parent"), and Xxxxx Xxxxxxx of Parent, in their respective
capacities as officers of Parent, and any individuals who shall hereafter
succeed to such offices, and Parent, and each of them, the attorneys and proxies
of the undersigned with full power of substitution and resubstitution, to the
full extent of the undersigned's rights with respect to the shares of Company
Capital Stock (as described in the Voting Agreement, dated as of April 29, 1999
(the "Voting Agreement")) beneficially owned by the undersigned, which shares
are listed on the final page of this Irrevocable Proxy, and any and all other
shares or securities issued or issuable in respect thereof on or after the date
hereof or which the undersigned may acquire after the date hereof (collectively,
the "Shares"), until such time as the Voting Agreement shall be terminated in
accordance with its terms. Upon the execution hereof, all prior proxies given by
the undersigned with respect to the Shares and any and all other shares or
securities issued or issuable in respect thereof on or after the date hereof are
hereby revoked and no subsequent proxies shall be given.
This proxy is irrevocable (to the full extent permitted by law), shall
be deemed to be coupled with an interest, and is granted in connection with the
Voting Agreement and in consideration of Parent entering into the Agreement and
Plan of Merger, dated as of April 29, 1999 (the "Merger Agreement"), among
Parent, BH ACQUISITION CORP., a Delaware corporation and wholly-owned subsidiary
of Parent, and the Company. This proxy shall terminate on the Expiration Date
(as defined in the Voting Agreement).
The attorneys and proxies named above shall be empowered at any time
prior to termination of the Voting Agreement to exercise all voting and other
rights (including, without limitation, the power to execute and deliver written
consents with respect to the Shares) of the undersigned at every annual or
special meeting of the stockholders of the Company and at every continuation or
adjournment thereof, and on every action or approval by written consent of the
stockholders of the Company in lieu of any such meeting in favor of the approval
and adoption of the Merger Agreement and approval of the Merger and in favor of
any matter that could reasonably be expected to facilitate the Merger. The
undersigned may vote the Shares on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the
heirs, legal representatives and permitted successors and assigns of the
undersigned.
If any term or other provision of this proxy is determined to be
invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this proxy shall nevertheless
remain in full force and effect so long as the economic
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or legal substance of the transactions contemplated herein is not affected in
any manner materially adverse to any party hereto. Upon such determination that
any term or other provision is invalid, illegal or incapable of being enforced,
the parties hereto shall negotiate in good faith to modify this proxy so as to
effect the original intent of the parties as closely as possible in a mutually
acceptable manner.
This proxy is irrevocable.
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Dated: April 29, 1999
THE HOLDER
Signature of Shareholder:_____________________________________
Print name of Shareholder:
Shares beneficially owned: __________ shares of Company Common Stock
__________ shares of Company Preferred Stock
