Execution Copy
VOTING AGREEMENT
This Voting Agreement ("Agreement") is entered into this September 13,
1999, by and among Portec, Inc., a Delaware corporation ("Parent"), Xxxxxxx
Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of
Parent ("Purchaser"), and the persons identified on the signature page hereto
(each individually a "Stockholder" and collectively the "Stockholders") in their
capacity as stockholders of NDC Automation, Inc., a Delaware corporation (the
"Company").
RECITALS
A. The Company, Parent and Purchaser are entering into an Agreement and
Plan of Merger, dated Setember 13, 1999 providing for the merger (the "Merger")
of Purchaser with and into the Company with the Company as the surviving entity
(the "Merger Agreement"). Capitalized terms used without definition herein
having the meanings ascribed thereto in the Merger Agreement;
B. In connection with the Merger Agreement, the Board of Directors of
the Company has approved and recommended adoption of the Merger Agreement to the
stockholders of the Company;
C. Each Stockholder is as of the date hereof the record and beneficial
owner of the number of shares of common stock, $.01 par value, of the Company
set forth below his name on the signature page hereto (collectively, the
"Shares");
D. Approval and adoption of the Merger Agreement by the Company's
stockholders is a condition to the consummation of the Merger; and
E. As a condition to their entering into the Merger Agreement, Parent
and Purchaser have required that each Stockholder agree, and each Stockholder
has agreed, to enter into this Agreement.
AGREEMENTS
Now, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
1. Agreement to Vote and Restrictions on Dispositions. Each Stockholder
hereby agrees as follows:
(a) Each Stockholder hereby agrees to attend any stockholders' meeting
of the Company, in person or by proxy, and to vote (or cause to be voted) all
Shares, and any other voting securities of the Company, whether issued
heretofore or hereafter, that each Stockholder owns or has the right
to vote, for approval and adoption of the Merger Agreement and the transactions
contemplated thereby, such agreement to vote to apply also to any adjournment of
the stockholders' meeting of the Company. Each Stockholder agrees not to grant
any proxies or enter into any voting agreement or arrangement inconsistent with
this Agreement. Each Stockholder further agrees to waive any dissenters rights,
appraisal rights or similar rights in connection with the Merger.
(b) Each Stockholder hereby agrees that, without the prior written
consent of Parent and Purchaser, each Stockholder shall not, directly or
indirectly, sell, offer to sell, grant any option for the sale of or otherwise
transfer or dispose of, or enter into any agreement to sell, grant an option for
or otherwise transfer or dispose of any Shares and any other voting securities
of the Company that each Stockholder owns beneficially or otherwise. Each
Stockholder agrees that Parent or Purchaser may instruct the Company to enter
stop transfer orders with the transfer agent(s) and the registrar(s) of the
Shares against the transfer of Shares and any other voting securities of the
Company that each Stockholder owns beneficially or otherwise. If requested by
Parent or Purchaser, each Stockholder agrees to surrender or cause to be
surrendered to the transfer agent(s) and registrar(s) of the Shares certificates
representing Shares registered in the name of each Stockholder, in exchange for
certificates representing Shares containing a legend to the effect of the
following:
The shares represented by this certificate are subject to restrictions
on transfer and disposition as set forth in the Voting Agreement dated
September 13, 1999, by and among Parent, Purchaser and Stockholder. A
copy of such agreement may be obtained from the Secretary of the
Company.
Upon the termination of this Agreement pursuant to Section 5 hereof,
each Stockholder shall have the right to unilaterally instruct the transfer
agent(s) and registrar(s) of the Shares to deliver to each Stockholder
certificates representing Shares registered in the name of such Stockholder and
not bearing the foregoing legend in exchange for certificates representing
Shares registered in the name of such Stockholder and bearing such legend.
(c) Each Stockholder agrees to vote (or cause to be voted) all Shares,
and any other voting securities of the Company, owned by such Stockholder
whether issued heretofore or hereafter, that such person owns or has the right
to vote, against (i) any Acquisition Proposal (as defined in the Merger
Agreement) which is not endorsed in writing by Parent and Purchaser and (ii) any
other action or agreement that would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the Company
under the Merger Agreement or which could result in any of the conditions to
Parent's or Purchaser's obligations under the Merger Agreement not being
fulfilled.
(d) Each Stockholder agrees not to and to cause any of its officers,
directors or employees or any investment banker, financial advisor, attorney,
accountant or other representative or agent of such Stockholder not to, directly
or indirectly, or through any person, (i) solicit, initiate, or encourage
(including by way of furnishing or otherwise providing access to nonpublic
information) any Acquisition Proposal or (ii) participate in any substantive
discussions or negotiations relating to any
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Acquisition Proposal (or any inquiry relating to an Acquisition Proposal) or
take any other action to facilitate any inquiries or the making of any proposal
that constitutes, or may reasonably be expected to lead to, an Acquisition
Proposal; provided, however, if the Company or the Board takes any action with
respect to an unsolicted Acquisition Proposal as permitted by Section 4.7(a) of
the Merger Agreement, nothing contained herein shall prohibit any Stockholder
from discussing with the person or entity who made such unsolicited Acquisition
Proposal the Stockholder's willingness to consent to a Superior Proposal under
that certain Amended and Restated Master License Agreement dated as of December
1, 1995 between the Company and Xxxxxxx et Xxxxxxxx Xx. XX, a limited liability
Swedish Corporation. Nothing contained herein shall be construed to limit or
otherwise affect any Affiliate or representative of any Stockholder who shall
serve as a director of the Company from taking any action permitted by Section
4.7 or Section 4.8 of the Merger Agreement in his or her capacity as such
director.
(e) Each Stockholder agrees to promptly notify Parent and Purchaser in
writing of the nature and amount of any acquisition by such Stockholder after
the date hereof of any voting securities of the Company.
2. Representations and Warranties of Each Stockholder. Each Stockholder
represents and warrants to Parent and Purchaser as follows:
(a) Each Stockholder has all necessary power and authority to execute
and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby.
(b) This Agreement has been duly executed and delivered by each
Stockholder, and assuming the due authorization, execution and delivery of this
Agreement by Parent and Purchaser, this Agreement constitutes the valid and
legally binding obligation of each Stockholder enforceable against each
Stockholder in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to
creditors' rights and general principles of equity.
(c) The Shares are the only voting securities of the Company owned
(beneficially or of record) by each Stockholder and are owned free and clear of
all liens, charges, encumbrances, restrictions and commitments of any kind other
than (i) shares pledged as margin stock and (ii) shares that were granted
pursuant to restricted share awards and have not yet vested. Each Stockholder
has not appointed or granted any irrevocable proxy, which appointment or grant
is still effective, with respect to the Shares.
(d) The execution and delivery of this Agreement by each Stockholder
does not (i) conflict with or violate any agreement, order, judgment or decision
or other instrument binding upon him, nor require any consent, notification,
regulatory filing or approval, (ii) to such Stockholder's knowledge, conflict
with or violate any law, rule or regulation or (ii) result in any breach of or
constitute a default (or an event that with notice or lapse of time or both
would become a default)
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under, or give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a lien or encumbrance on any of
the Shares owned by each Stockholder pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which such Stockholder is a party or by which such
Stockholder or the Shares owned by such Stockholder are bound or affected.
(f) Each Stockholder is not engaged in any activities, discussions or
negotiations with respect to any Acquisition Proposal.
3. Further Assurances. Each party shall execute and deliver such
additional instruments and other documents and shall take such further actions
as may be necessary or appropriate to effectuate, carry out and comply with all
of their obligations under this Agreement. Without limiting the generality of
the foregoing, neither of the parties hereto shall enter into any agreement or
arrangement (or alter, amend or terminate any existing agreement or arrangement)
if such action would materially impair the ability of either party to
effectuate, carry out or comply with all the terms of this Agreement.
4. Representations and Warranties of Parent and Purchaser. Each of
Parent and Purchaser represents and warrants to the Stockholders as follows:
(a) Each of this Agreement, the Merger Agreement, the Merger and the
other transactions contemplated by the Merger Agreement has been approved by the
Board of Directors of each of Parent and Purchaser.
(b) Each of this Agreement and the Merger Agreement has been duly
executed and delivered by a duly authorized officer of each of Parent and
Purchaser and, assuming the due authorization, execution and delivery of this
Agreement by each Stockholder and the Merger Agreement by the Company, each of
this Agreement and the Merger Agreement constitutes a valid and binding
agreement of each of Parent and Purchaser, enforceable against Parent and
Purchaser in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to
creditors' rights generally and general principles of equity.
5. Effectiveness and Termination. It is a condition precedent to the
effectiveness of this Agreement that the Merger Agreement shall have been
executed and delivered and be in full force and effect. This Agreement shall
automatically terminate and be of no further force or effect upon the
termination of the Merger Agreement in accordance with its terms. Upon any
termination of this Agreement, except for any rights either party may have in
respect of any knowing and material breach by either party of its obligations
hereunder hereto, neither party shall have any further obligation or liability
hereunder. The provisions of Section 1 of this Agreement shall terminate and be
of no further force or effect from and after the Effective Time of the Merger.
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6. Covenants of Stockholder Not to Enter Into Inconsistent Agreements.
Each Stockholder hereby agrees that, except as contemplated by this Agreement
and the Merger Agreement, each Stockholder shall not enter into any voting
agreement or grant an irrevocable proxy or power of attorney with respect to the
Shares which is inconsistent with this Agreement.
7. Miscellaneous.
a. Notices, Etc. All notices required or permitted to be given
hereunder shall be in writing and may be delivered by hand, by facsimile or by
nationally recognized overnight courier. Notices delivered by hand, by facsimile
or by nationally recognized overnight courier shall be deemed given on the day
of receipt (if such day is a business day or, if such day is not a business day,
the next succeeding business day); provided, however, that a notice delivered by
facsimile shall only be effective if and when confirmation is received of
receipt of the facsimile at the number provided in this Section 7(a). All
notices shall be addressed as follows:
If to any Stockholder:
Xxxxxxx & Xxxxxxxx Co. AB
XX-000 00 Xxxx
Xxxxxx
Attention: Xx. Xxxxx Xxxxxxx
Fax: 000-00-00-00-00-00
If to Parent or Purchaser:
c/o Code Xxxxxxx & Xxxxxxx
00 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Fax: (000) 000-0000
with a copy to:
Altheimer & Xxxx
00 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx
Fax: (000) 000-0000
and/or to such other respective addresses and/or addressees as may be designated
by notice given in accordance with the provisions of this Section 7(a).
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b. Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated except by an
instrument in writing signed by Parent, Purchaser and each Stockholder.
c. Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of and be enforceable by the parties and their
respective successors and assigns, including without limitation any corporate
successor by merger or otherwise. Notwithstanding any transfer of Shares, the
transferor shall remain liable for the performance of all obligations of the
transferor under this Agreement.
d. Entire Agreement. This Agreement (together with the Merger
Agreement) embodies the entire agreement and understanding among the parties
relating to the subject matter hereof and supersedes all prior agreements and
understandings relating to such subject matter. There are no representations,
warranties or covenants by the parties hereto relating to such subject matter
other than those expressly set forth in this Agreement and the Merger Agreement.
e. Severability. If any term of this Agreement or the application
thereof to either party or circumstance shall be held invalid or unenforceable
to any extent, the remainder of this Agreement and the application of such term
to the other parties or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by applicable law; provided that in
such event the parties shall negotiate in good faith in an attempt to agree to
another provision (in lieu of the term or application held to be invalid or
unenforceable) that will be valid and enforceable and will carry out the
parties' intentions hereunder.
f. Specific Performance. The parties acknowledge that money damages
would not be an adequate remedy for violations of this Agreement and that either
party may, in its sole discretion, apply to a court of competent jurisdiction
for specific performance or injunction or such other relief as such court may
deem just and proper in order to enforce this Agreement or prevent any violation
hereof and, to the extent permitted by applicable law, each party waives any
objection to the imposition of such relief.
g. 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 or beginning of the
exercise of any thereof by either party shall not preclude the simultaneous or
later exercise of any other such rights, power or remedy by such party.
h. No Waiver. The failure of either 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 the 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.
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i. No Third Party Beneficiaries. This Agreement is not intended to be
for the benefit of and shall not be enforceable by any person or entity who or
which is not a party hereto.
j. Governing Law. This Agreement and all disputes hereunder shall be
governed by and construed and enforced in accordance with the laws of the State
of Delaware.
k. Name, Captions, Gender. The name assigned this Agreement and the
section captions used herein are for convenience of reference only and shall not
affect the interpretation or construction hereof. Whenever the context may
require, any pronoun used herein shall include the corresponding masculine,
feminine or neuter forms.
l. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one instrument. Each counterpart may consist of a
number of copies each signed by less than all, but together signed by all, the
parties hereto.
m. Expenses. Each party shall bear its own expenses incurred in
connection with this Agreement and the transactions contemplated hereby.
[Signatures Follow]
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
/s/XXXXX XXXXXXX /s/JAN JUTANDER
------------------------------------
Name NDC, XXXXXXX & XXXXXXXX CO AB
Number of Shares: 550,000
/s/XXXXX XXXXXXX
------------------------------------
Name XXXXX XXXXXXX
Number of Shares: 200,640
/s/XXXXXX XXXXXXXX
------------------------------------
Name XXXXXX XXXXXXXX
Number of Shares: 200,640
/s/XXXX XXXXXXX
------------------------------------
Name XXXX XXXXXXX
Number of Shares: 200,640
/s/JAN JUTANDER
------------------------------------
Name JAN JUTANDER
Number of Shares: 200,640
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PARENT:
PORTEC, INC.
By: /s/Xxxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxxx X. Xxxxx
Its: PRESIDENT
PURCHASER:
XXXXXXX ACQUISITION CORP.
By: /s/Xxxxxx Xxxxxx
--------------------------
Name: Xxxxxx Xxxxxx
Its: VICE PRESIDENT
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