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EXHIBIT 2
VOTING AGREEMENT
Page 18 of 20 Pages
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VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as of July 27, 1999 is
made by and among Imaging Components Corporation, a Delaware corporation (the
"Parent"), Imaging Acquisition Corporation, a Delaware corporation ("Merger
Sub"), and each of the persons named on Exhibit A hereto (each, a "Stockholder",
and collectively, the "Stockholders").
WHEREAS, Parent, Merger Sub and Kofax Image Products, Inc., a
Delaware corporation (the "Company") are concurrently herewith entering into an
Agreement and Plan of Merger dated as of the date hereof (as may be amended,
restated or modified from time to time, the "Merger Agreement") which provides
for, among other things, the merger of Merger Sub with and into the Company,
upon the terms and subject to the conditions set forth in the Merger Agreement.
Capitalized terms used but not otherwise defined herein shall have the meanings
set forth in the Merger Agreement.
WHEREAS, as of the date hereof, each Stockholder is the record and
beneficial owner of the number of Shares set forth opposite such Stockholder's
name on Exhibit A (the "Existing Shares" and, together with any shares of Common
Stock acquired by or issued to such Stockholder after the date hereof, the
"Subject Shares").
WHEREAS, as an inducement and a condition to entering into the
Merger Agreement, Parent and Merger Sub have required that the Stockholders
agree, and the Stockholders have agreed, to enter into this Agreement.
WHEREAS, the Stockholders and Merger Sub desire to set forth their
agreement with respect to the voting of the Subject Shares in connection with
the Merger Agreement and the transactions contemplated thereby (the
"Transactions") upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. COVENANTS OF THE STOCKHOLDERS. Until the termination of this
Agreement in accordance with Section 5, the Stockholders agree as follows:
(a) Agreement to Vote in Favor. At any meeting of shareholders of
the Company called for purposes that include approval of the Merger Agreement
and the Transactions, or in connection with any written consent of the holders
of Shares or in any other circumstances in which the Stockholders are entitled
to vote, consent or give any other approval with respect to the Merger Agreement
and the Transactions, the Stockholders shall vote (or cause to be voted) the
Subject
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Shares in favor of adoption and approval of the Merger Agreement and the
Transactions and the approval of the terms thereof and each of the other actions
contemplated by this Agreement and the Merger Agreement and any amendments.
(b) Agreement to Tender. Within the first ten (10) Business Days
after the commencement of the Offer to tender all of their respective Subject
Shares, except, if applicable, their respective Retained Shares, into the Offer,
and not to withdraw any of their respective Shares so tendered from the Offer.
(c) Agreement to Vote Against. At any meeting of shareholders of the
Company, or in connection with any written consent of the holders of Shares or
in any other circumstances in which the Stockholders are entitled to vote,
consent or give any other approval, except as otherwise agreed to in writing in
advance by Merger Sub, the Stockholders shall vote (or cause to be voted) the
Subject Shares against the following actions:
(i) any action or agreement that would result in a breach in
any material respect of any covenant, representation or warranty or
any other obligation or agreement of the Company under the Merger
Agreement or of the Stockholders hereunder; or
(ii) any action or agreement that could reasonably be expected
to impede, interfere with, delay, postpone or attempt to discourage
the Merger and/or the Transactions, including, without limitation,
(x) the adoption by the Company of a proposal supporting a Takeover
Proposal or the repurchase by the Company or any of its Subsidiaries
of outstanding Shares for consideration in excess of the Per Share
Amount or (y) any amendment of the Company's Articles of
Incorporation or By-laws (including any amendment affecting the
voting rights of the Company's Capital Stock) or other proposal or
transaction involving the Company or any of its Subsidiaries
(including any changes in management or the directors of the
Company), which amendment or other proposal or transaction could in
any manner reasonably be expected to impede, in any material
respect, or prevent the Merger, the Merger Agreement or the
Transactions.
(d) Proxies. As security for the agreements of the Stockholders
provided for herein, the Stockholders hereby grant to Merger Sub a proxy to vote
the Subject Shares as indicated in Sections 1(a) and 1(b) above. The
Stockholders agree that this proxy shall be irrevocable during the term of this
Agreement and coupled with an interest and each of the Stockholders and Merger
Sub will take such further action or execute such other instruments as may be
necessary to effectuate the intent of this proxy and hereby revokes any proxy
previously granted by the Stockholders with respect to the Subject Shares.
(e) Transfer Restrictions. The Stockholders agree not to (i) sell,
transfer, pledge, encumber, assign or otherwise dispose of or hypothecate
(including by gift or by contribution or distribution to any trust or similar
instrument or to any beneficiaries of the Stockholders) (collectively,
"Transfer"), or enter into any contract, option or other arrangement or
understanding
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(including any profit sharing arrangement) with respect to the Transfer of, any
of the Subject Shares other than pursuant to the terms hereof and the Merger
Agreement, or (ii) enter into any voting arrangement or understanding with
respect to the Subject Shares, whether by proxy, voting agreement or otherwise
other than this Agreement.
(f) Appraisal Rights. The Stockholders hereby irrevocably waive any
and all rights which it may have as to appraisal, dissent or any similar or
related matter with respect to the Merger including any such rights set forth in
the DGCL.
2. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS. Each
Stockholder hereby severally but not jointly represents and warrants to Merger
Sub as of the date hereof as follows:
(a) Authority; No Conflict. Such Stockholder has the requisite power
and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by such Stockholder, and this Agreement constitutes a
valid and binding agreement of such Stockholder, enforceable against such
Stockholder in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law), an implied
covenant of good faith and fair dealing and considerations of public policy. The
execution and delivery of this Agreement by such Stockholder does not, and the
consummation by such Stockholder of the transactions contemplated hereby will
not violate any law applicable to such Stockholder or result in a violation or
any breach of or constitute a default (or an event which with notice or lapse of
time or both would become a default) under any contract or agreement to which
such Stockholder is a party.
(b) Shares. The Existing Shares are owned beneficially and of record
by the Stockholders. The Existing Shares constitute all of the shares of Common
Stock owned of record or beneficially by the Stockholders as at the date hereof.
All of the Existing Shares are issued and outstanding and except as set forth on
Schedule A attached hereto, the Stockholders do not own, of record or
beneficially, any warrants, options or other rights to acquire any shares of
Common Stock. Each Stockholder has sole voting power, sole power of disposition,
sole power to issue instructions with respect to the matters set forth in
Section 1 hereof, sole power to demand appraisal rights (to the extent such
rights are available) and sole power to agree to all of the matters set forth in
this Agreement, in each case with respect to all of the Existing Shares, and
will have sole voting power, sole power of disposition, sole power to issue
instructions with respect to the matters set forth in Section 1 hereof, sole
power to demand appraisal rights (to the extent such rights are available) and
sole power to agree to all of the matters set forth in this Agreement, in each
case with respect to all of the Subject Shares held of record. Each Stockholder
has good and valid title to the Existing Shares and at all times during the term
hereof and on the Effective Time will have good and valid title to the Subject
Shares, free and clear of all Liens and free of any other limitation or
restriction other than restrictions under applicable securities laws.
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3. REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. Each of
Parent and Merger Sub hereby represents and warrants to the Stockholders as of
the date hereof as follows:
(a) Authority. Each of Parent and Merger Sub has full corporate
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance by
Parent and Merger Sub of this Agreement and the consummation by Parent and
Merger Sub of the transactions contemplated hereby have been duly and validly
authorized by its respective board of directors and no other corporate action or
proceedings on the part of Parent or Merger Sub is necessary to authorize the
execution and delivery by Parent and Merger Sub of this Agreement and the
consummation by Parent and Merger Sub of the transactions contemplated hereby.
This Agreement has been duly executed and delivered by Parent and Merger Sub,
and, assuming this Agreement constitutes a valid and binding obligation of the
Stockholders, constitutes valid and binding obligations of Parent and Merger
Sub, enforceable against them in accordance with its terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law), an implied covenant of good faith and fair dealing and
considerations of public policy.
(b) No Conflict. The execution and delivery of this Agreement by
Merger Sub does not, and the consummation by Merger Sub of the transactions
contemplated hereby will not (i) conflict with or violate the Articles of
Incorporation, By-laws or other organizational documents of Merger Sub, (ii)
conflict with or violate any law applicable to Merger Sub or by which any
property or asset of Merger Sub is bound or affected, except for such conflicts
or violations which would not, individually or in the aggregate, have a Parent
Material Adverse Effect, or (iii) result in a violation or any breach of or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which Merger Sub is a party or by which Merger Sub or any property or asset
of Merger Sub is bound or affected, except for any such breaches or defaults
which would not materially impair the ability of Merger Sub to consummate the
transactions contemplated hereby.
4. FURTHER ASSURANCES. From time to time prior to the Effective
Time, at any other party's request and without further consideration, each party
hereto shall execute and deliver such additional documents and take all such
further lawful 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.
5. TERMINATION. This Agreement shall terminate, and no party shall
have any rights or obligations hereunder and this Agreement shall become null
and void and have no further effect upon the earliest to occur of (x) the
Effective Time or (y) termination of the Merger Agreement pursuant to Section
7.1 thereof. Nothing in this Section 5 shall relieve any party of liability for
breach of this Agreement; provided, that Merger Sub's sole remedy in the event
of a breach of this Agreement shall be as specified in Section 6(i) (provided
that injunctive relief shall
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also be available for any breach of Section 1(e)) and in no event shall Merger
Sub be entitled to any form of monetary damages.
6. GENERAL PROVISIONS.
(a) Costs and Expenses. All costs and expenses incurred in
connection with this Agreement and the consummation of the transactions
contemplated hereby shall be paid by the party incurring such expenses;
provided, that Merger Sub shall pay the documented reasonable out-of-pocket fees
and expenses of the Shareholders, including the fees and disbursements of one
counsel for all Shareholders.
(b) Amendment. This Agreement may not be amended except by an
instrument in writing signed by the party to be charged therewith.
(c) Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally, telecopied (which
is confirmed by customary receipt of transmission) or sent by overnight courier
(providing proof of delivery) to the parties at the following addresses (or at
such other addresses for a party as shall be specified by like notice):
To Parent or Merger Sub:
c/o Dicom Group plc
Business Building Forren West
Xxxxxxxxxxxx 00
0000 Xxxxxxxx
XX Xxxxxxxxxxx
Attention: Xxxx Xxxxxx
Facsimile: 011 41 41 798 3088
and
c/o Dresdner Kleinwort Xxxxxx Private Equity LLC
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice to Parent
or Merger Sub) to:
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxx, Esq.
Xxxx Xxxx, Esq.
Facsimile: (000) 000-0000
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To the Stockholders:
Addresses on Exhibit A
with a copy (which shall not constitute notice to the
Stockholders) to:
Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: X.X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
(d) Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
(e) Entire Agreement; No Third Party Beneficiaries. This Agreement
and the Merger Agreement constitutes the entire agreement and supersedes all
prior agreements and understandings, both written and oral, among the parties
with respect to the subject matter hereof, and is not intended to confer upon
any person other than the parties hereto any rights or remedies hereunder.
(f) Severability. If any term or other provision of this Agreement
is 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 hereby is not affected in any manner materially
adverse to any party. 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 in
order that the transactions contemplated hereby may be consummated as originally
contemplated to the fullest extent possible.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO ANY
CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF
DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAW
OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE.
(h) 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, except that Merger Sub may assign, in Merger Sub's
sole discretion, any or all of their respective rights, interests and
obligations hereunder to any affiliate of Merger Sub. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of and be
enforceable by the parties and their respective successors, heirs, agents,
representatives, trust beneficiaries, attorneys, affiliates and associates and
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all of their respective predecessors, successors, permitted assigns, heirs,
executors and administrators.
(i) Specific Performance. The parties acknowledge that irreparable
damage would result if this Agreement were not specifically enforced, and they
therefore consent that the rights and obligations of the parties under this
Agreement may be enforced by a decree of specific performance issued by a court
of competent jurisdiction. Such remedy shall be exclusive and in lieu of any
other remedies, including arbitration, which any party may have under this
Agreement or otherwise.
(j) Waiver of Jury Trial. The parties to this Agreement each hereby
waives, to the fullest extent permitted by law, any right to trial by jury of
any claim, demand, action, or cause of action (i) arising under this Agreement
or (ii) in any way connected with or related or incidental to the dealings of
the parties hereto in respect of this Agreement or any of the transactions
related hereto, in each case whether now existing or hereafter arising, and
whether in contract, tort, equity, or otherwise. The parties to this Agreement
each hereby agrees and consents that any such claim, demand, action, or cause of
action shall be decided by court trial without a jury and that the parties to
this Agreement may file an original counterpart of a copy of this Agreement with
any court as written evidence of the consent of the parties hereto to the waiver
of their right to trial by jury.
* * * * *
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IN WITNESS WHEREOF, Parent, Merger Sub and the Stockholders have
caused this Agreement to be signed by their respective officers or other
authorized person thereunto duly authorized as of the date first written above.
IMAGING COMPONENTS CORPORATION
By: _____________________________
Name: Xxxxxxxxx X. Xxxxxxx
Title: Vice President
IMAGING ACQUISITION CORPORATION
By: _____________________________
Name: Xxxxxxxxx X. Xxxxxxx
Title: Vice President
____________________________________
XXXXX X. SILVER
____________________________________
XXXX X. XXXXX
____________________________________
XXXXXX X. XXXXXX
____________________________________
XXXXXXX X. XXXXXX
____________________________________
XXXXX XXXX
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____________________________________
XXXXXXXXX X. XXXXXXX
____________________________________
XXXXXXX X. XXXXXXX
____________________________________
X. XXXXX LAY
SOUTHERN CALIFORNIA VENTURES
By: _____________________________
Name:
Title:
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EXHIBIT A
NUMBER OF
EXISTING
STOCKHOLDERS' NAME AND ADDRESS SHARES
------------------------------ ------
Xxxxx X. Silver 342,500
00000 Xxxxxx Xxxxxx Xxxx
Xxxxx, XX 00000
Xxxx X. Xxxxx 345,000
00000 Xxxxxx Xxxxxx Xxxx
Xxxxx, XX 00000
Xxxxxx X. Xxxxxx 37,500
00000 Xxxxxx Xxxxxx Xxxx
Xxxxx, XX 00000
Xxxxxxx X. Xxxxxx 54,444
00000 Xxxxxx Xxxxxx Xxxx
Xxxxx, XX 00000
Xxxxx Xxxx 32,500
00000 Xxxxxx Xxxxxx Xxxx
Xxxxx, XX 00000
Xxxxxxxxx X. Xxxxxxx 2,615
[STREET]
[CITY]
Xxxxxxx X. Xxxxxxx 120,000
[STREET]
[CITY]
X. Xxxxx Lay 45,101
[STREET]
[CITY]
Southern California Ventures 42,806
[STREET]
[CITY]
Exhibit A -- Page 1
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Exhibit (c)(2)
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as of July 27, 1999 is
made by and among Imaging Components Corporation, a Delaware corporation (the
"Parent"), Imaging Acquisition Corporation, a Delaware corporation ("Merger
Sub"), and each of the persons named on Exhibit A hereto (each, a "Stockholder",
and collectively, the "Stockholders").
WHEREAS, Parent, Merger Sub and Kofax Image Products, Inc., a
Delaware corporation (the "Company") are concurrently herewith entering into an
Agreement and Plan of Merger dated as of the date hereof (as may be amended,
restated or modified from time to time, the "Merger Agreement") which provides
for, among other things, the merger of Merger Sub with and into the Company,
upon the terms and subject to the conditions set forth in the Merger Agreement.
Capitalized terms used but not otherwise defined herein shall have the meanings
set forth in the Merger Agreement.
WHEREAS, as of the date hereof, each Stockholder is the record and
beneficial owner of the number of Shares set forth opposite such Stockholder's
name on Exhibit A (the "Existing Shares" and, together with any shares of Common
Stock acquired by or issued to such Stockholder after the date hereof, the
"Subject Shares").
WHEREAS, as an inducement and a condition to entering into the
Merger Agreement, Parent and Merger Sub have required that the Stockholders
agree, and the Stockholders have agreed, to enter into this Agreement.
WHEREAS, the Stockholders and Merger Sub desire to set forth their
agreement with respect to the voting of the Subject Shares in connection with
the Merger Agreement and the transactions contemplated thereby (the
"Transactions") upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. COVENANTS OF THE STOCKHOLDERS. Until the termination of this
Agreement in accordance with Section 5, the Stockholders agree as follows:
(a) Agreement to Vote in Favor. At any meeting of shareholders of
the Company called for purposes that include approval of the Merger Agreement
and the Transactions, or in connection with any written consent of the holders
of Shares or in any other circumstances in which the Stockholders are entitled
to vote, consent or give any other approval with respect to the Merger Agreement
and the Transactions, the Stockholders shall vote (or cause to be voted) the
Subject
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Shares in favor of adoption and approval of the Merger Agreement and the
Transactions and the approval of the terms thereof and each of the other actions
contemplated by this Agreement and the Merger Agreement and any amendments.
(b) Agreement to Tender. Within the first ten (10) Business Days
after the commencement of the Offer to tender all of their respective Subject
Shares, except, if applicable, their respective Retained Shares, into the Offer,
and not to withdraw any of their respective Shares so tendered from the Offer.
(c) Agreement to Vote Against. At any meeting of shareholders of the
Company, or in connection with any written consent of the holders of Shares or
in any other circumstances in which the Stockholders are entitled to vote,
consent or give any other approval, except as otherwise agreed to in writing in
advance by Merger Sub, the Stockholders shall vote (or cause to be voted) the
Subject Shares against the following actions:
(i) any action or agreement that would result in a breach in
any material respect of any covenant, representation or warranty or
any other obligation or agreement of the Company under the Merger
Agreement or of the Stockholders hereunder; or
(ii) any action or agreement that could reasonably be expected
to impede, interfere with, delay, postpone or attempt to discourage
the Merger and/or the Transactions, including, without limitation,
(x) the adoption by the Company of a proposal supporting a Takeover
Proposal or the repurchase by the Company or any of its Subsidiaries
of outstanding Shares for consideration in excess of the Per Share
Amount or (y) any amendment of the Company's Articles of
Incorporation or By-laws (including any amendment affecting the
voting rights of the Company's Capital Stock) or other proposal or
transaction involving the Company or any of its Subsidiaries
(including any changes in management or the directors of the
Company), which amendment or other proposal or transaction could in
any manner reasonably be expected to impede, in any material
respect, or prevent the Merger, the Merger Agreement or the
Transactions.
(d) Proxies. As security for the agreements of the Stockholders
provided for herein, the Stockholders hereby grant to Merger Sub a proxy to vote
the Subject Shares as indicated in Sections 1(a) and 1(b) above. The
Stockholders agree that this proxy shall be irrevocable during the term of this
Agreement and coupled with an interest and each of the Stockholders and Merger
Sub will take such further action or execute such other instruments as may be
necessary to effectuate the intent of this proxy and hereby revokes any proxy
previously granted by the Stockholders with respect to the Subject Shares.
(e) Transfer Restrictions. The Stockholders agree not to (i) sell,
transfer, pledge, encumber, assign or otherwise dispose of or hypothecate
(including by gift or by contribution or distribution to any trust or similar
instrument or to any beneficiaries of the Stockholders) (collectively,
"Transfer"), or enter into any contract, option or other arrangement or
understanding
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(including any profit sharing arrangement) with respect to the Transfer of, any
of the Subject Shares other than pursuant to the terms hereof and the Merger
Agreement, or (ii) enter into any voting arrangement or understanding with
respect to the Subject Shares, whether by proxy, voting agreement or otherwise
other than this Agreement.
(f) Appraisal Rights. The Stockholders hereby irrevocably waive any
and all rights which it may have as to appraisal, dissent or any similar or
related matter with respect to the Merger including any such rights set forth in
the DGCL.
2. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS. Each
Stockholder hereby severally but not jointly represents and warrants to Merger
Sub as of the date hereof as follows:
(a) Authority; No Conflict. Such Stockholder has the requisite power
and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by such Stockholder, and this Agreement constitutes a
valid and binding agreement of such Stockholder, enforceable against such
Stockholder in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law), an implied
covenant of good faith and fair dealing and considerations of public policy. The
execution and delivery of this Agreement by such Stockholder does not, and the
consummation by such Stockholder of the transactions contemplated hereby will
not violate any law applicable to such Stockholder or result in a violation or
any breach of or constitute a default (or an event which with notice or lapse of
time or both would become a default) under any contract or agreement to which
such Stockholder is a party.
(b) Shares. The Existing Shares are owned beneficially and of record
by the Stockholders. The Existing Shares constitute all of the shares of Common
Stock owned of record or beneficially by the Stockholders as at the date hereof.
All of the Existing Shares are issued and outstanding and except as set forth on
Schedule A attached hereto, the Stockholders do not own, of record or
beneficially, any warrants, options or other rights to acquire any shares of
Common Stock. Each Stockholder has sole voting power, sole power of disposition,
sole power to issue instructions with respect to the matters set forth in
Section 1 hereof, sole power to demand appraisal rights (to the extent such
rights are available) and sole power to agree to all of the matters set forth in
this Agreement, in each case with respect to all of the Existing Shares, and
will have sole voting power, sole power of disposition, sole power to issue
instructions with respect to the matters set forth in Section 1 hereof, sole
power to demand appraisal rights (to the extent such rights are available) and
sole power to agree to all of the matters set forth in this Agreement, in each
case with respect to all of the Subject Shares held of record. Each Stockholder
has good and valid title to the Existing Shares and at all times during the term
hereof and on the Effective Time will have good and valid title to the Subject
Shares, free and clear of all Liens and free of any other limitation or
restriction other than restrictions under applicable securities laws.
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3. REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. Each of
Parent and Merger Sub hereby represents and warrants to the Stockholders as of
the date hereof as follows:
(a) Authority. Each of Parent and Merger Sub has full corporate
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance by
Parent and Merger Sub of this Agreement and the consummation by Parent and
Merger Sub of the transactions contemplated hereby have been duly and validly
authorized by its respective board of directors and no other corporate action or
proceedings on the part of Parent or Merger Sub is necessary to authorize the
execution and delivery by Parent and Merger Sub of this Agreement and the
consummation by Parent and Merger Sub of the transactions contemplated hereby.
This Agreement has been duly executed and delivered by Parent and Merger Sub,
and, assuming this Agreement constitutes a valid and binding obligation of the
Stockholders, constitutes valid and binding obligations of Parent and Merger
Sub, enforceable against them in accordance with its terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law), an implied covenant of good faith and fair dealing and
considerations of public policy.
(b) No Conflict. The execution and delivery of this Agreement by
Merger Sub does not, and the consummation by Merger Sub of the transactions
contemplated hereby will not (i) conflict with or violate the Articles of
Incorporation, By-laws or other organizational documents of Merger Sub, (ii)
conflict with or violate any law applicable to Merger Sub or by which any
property or asset of Merger Sub is bound or affected, except for such conflicts
or violations which would not, individually or in the aggregate, have a Parent
Material Adverse Effect, or (iii) result in a violation or any breach of or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which Merger Sub is a party or by which Merger Sub or any property or asset
of Merger Sub is bound or affected, except for any such breaches or defaults
which would not materially impair the ability of Merger Sub to consummate the
transactions contemplated hereby.
4. FURTHER ASSURANCES. From time to time prior to the Effective
Time, at any other party's request and without further consideration, each party
hereto shall execute and deliver such additional documents and take all such
further lawful 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.
5. TERMINATION. This Agreement shall terminate, and no party shall
have any rights or obligations hereunder and this Agreement shall become null
and void and have no further effect upon the earliest to occur of (x) the
Effective Time or (y) termination of the Merger Agreement pursuant to Section
7.1 thereof. Nothing in this Section 5 shall relieve any party of liability for
breach of this Agreement; provided, that Merger Sub's sole remedy in the event
of a breach of this Agreement shall be as specified in Section 6(i) (provided
that injunctive relief shall
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also be available for any breach of Section 1(e)) and in no event shall Merger
Sub be entitled to any form of monetary damages.
6. GENERAL PROVISIONS.
(a) Costs and Expenses. All costs and expenses incurred in
connection with this Agreement and the consummation of the transactions
contemplated hereby shall be paid by the party incurring such expenses;
provided, that Merger Sub shall pay the documented reasonable out-of-pocket fees
and expenses of the Shareholders, including the fees and disbursements of one
counsel for all Shareholders.
(b) Amendment. This Agreement may not be amended except by an
instrument in writing signed by the party to be charged therewith.
(c) Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally, telecopied (which
is confirmed by customary receipt of transmission) or sent by overnight courier
(providing proof of delivery) to the parties at the following addresses (or at
such other addresses for a party as shall be specified by like notice):
To Parent or Merger Sub:
c/o Dicom Group plc
Business Building Forren West
Xxxxxxxxxxxx 00
0000 Xxxxxxxx
XX Xxxxxxxxxxx
Attention: Xxxx Xxxxxx
Facsimile: 011 41 41 798 3088
and
c/o Dresdner Kleinwort Xxxxxx Private Equity LLC
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice to Parent
or Merger Sub) to:
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxx, Esq.
Xxxx Xxxx, Esq.
Facsimile: (000) 000-0000
5
17
To the Stockholders:
Addresses on Exhibit A
with a copy (which shall not constitute notice to the
Stockholders) to:
Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: X.X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
(d) Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
(e) Entire Agreement; No Third Party Beneficiaries. This Agreement
and the Merger Agreement constitutes the entire agreement and supersedes all
prior agreements and understandings, both written and oral, among the parties
with respect to the subject matter hereof, and is not intended to confer upon
any person other than the parties hereto any rights or remedies hereunder.
(f) Severability. If any term or other provision of this Agreement
is 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 hereby is not affected in any manner materially
adverse to any party. 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 in
order that the transactions contemplated hereby may be consummated as originally
contemplated to the fullest extent possible.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO ANY
CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF
DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAW
OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE.
(h) 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, except that Merger Sub may assign, in Merger Sub's
sole discretion, any or all of their respective rights, interests and
obligations hereunder to any affiliate of Merger Sub. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of and be
enforceable by the parties and their respective successors, heirs, agents,
representatives, trust beneficiaries, attorneys, affiliates and associates and
6
18
all of their respective predecessors, successors, permitted assigns, heirs,
executors and administrators.
(i) Specific Performance. The parties acknowledge that irreparable
damage would result if this Agreement were not specifically enforced, and they
therefore consent that the rights and obligations of the parties under this
Agreement may be enforced by a decree of specific performance issued by a court
of competent jurisdiction. Such remedy shall be exclusive and in lieu of any
other remedies, including arbitration, which any party may have under this
Agreement or otherwise.
(j) Waiver of Jury Trial. The parties to this Agreement each hereby
waives, to the fullest extent permitted by law, any right to trial by jury of
any claim, demand, action, or cause of action (i) arising under this Agreement
or (ii) in any way connected with or related or incidental to the dealings of
the parties hereto in respect of this Agreement or any of the transactions
related hereto, in each case whether now existing or hereafter arising, and
whether in contract, tort, equity, or otherwise. The parties to this Agreement
each hereby agrees and consents that any such claim, demand, action, or cause of
action shall be decided by court trial without a jury and that the parties to
this Agreement may file an original counterpart of a copy of this Agreement with
any court as written evidence of the consent of the parties hereto to the waiver
of their right to trial by jury.
* * * * *
7
19
IN WITNESS WHEREOF, Parent, Merger Sub and the Stockholders have
caused this Agreement to be signed by their respective officers or other
authorized person thereunto duly authorized as of the date first written above.
IMAGING COMPONENTS CORPORATION
By:/s/ Xxxxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Vice President
IMAGING ACQUISITION CORPORATION
By:/s/ Xxxxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Vice President
/s/ Xxxxx X. Silver
-------------------------------
XXXXX X. SILVER
/s/ Xxxx X. Xxxxx
-------------------------------
XXXX X. XXXXX
/s/ Xxxxxx X. Xxxxxx
-------------------------------
XXXXXX X. XXXXXX
/s/ Xxxxxxx X. Xxxxxx
-------------------------------
XXXXXXX X. XXXXXX
/s/ Xxxxx Xxxx
-------------------------------
XXXXX XXXX
20
/s/ Xxxxxxxxx X. Xxxxxxx
---------------------------------
XXXXXXXXX X. XXXXXXX
/s/ Xxxxxxx X. Xxxxxxx
---------------------------------
XXXXXXX X. XXXXXXX
/s/ X. Xxxxx Lay
---------------------------------
X. XXXXX LAY
SOUTHERN CALIFORNIA VENTURES
By:/s/ X. Xxxxx Lay
---------------------------------
Name: X. Xxxxx Lay
Title: General Partner
21
EXHIBIT A
NUMBER OF
EXISTING
STOCKHOLDERS' NAME AND ADDRESS SHARES
------------------------------ ------
Xxxxx X. Silver 342,500
00000 Xxxxxx Xxxxxx Xxxx
Xxxxx, XX 00000
Xxxx X. Xxxxx 345,000
00000 Xxxxxx Xxxxxx Xxxx
Xxxxx, XX 00000
Xxxxxx X. Xxxxxx 37,500
00000 Xxxxxx Xxxxxx Xxxx
Xxxxx, XX 00000
Xxxxxxx X. Xxxxxx 54,444
00000 Xxxxxx Xxxxxx Xxxx
Xxxxx, XX 00000
Xxxxx Xxxx 32,500
00000 Xxxxxx Xxxxxx Xxxx
Xxxxx, XX 00000
Xxxxxxxxx X. Xxxxxxx 2,615
[STREET]
[CITY]
Xxxxxxx X. Xxxxxxx 120,000
[STREET]
[CITY]
X. Xxxxx Lay 45,101
[STREET]
[CITY]
Southern California Ventures 42,806
[STREET]
[CITY]
Exhibit A -- Page 1
