Exhibit 2
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as of August 8, 2002, by
and between Honeywell International Inc., a Delaware corporation
("Honeywell"), and the individuals and entities listed on Schedule A hereto
(collectively, the "Stockholders").
RECITALS
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A. Honeywell, UTAH, Inc., a Delaware corporation (the "Company"), and
certain subsidiaries of the Company are entering into an Asset Purchase
Agreement of even date herewith (the "Asset Purchase Agreement") providing
for the sale by the Company to Honeywell of certain assets of the Company,
on the terms set forth therein.
B. As of the date of this Agreement, the Stockholders own beneficially
or of record the number of shares of Common Stock of the Company ("Company
Common Stock") and the number of shares of Series A Convertible Preferred
Stock of the Company ("Company Preferred Stock") set forth opposite their
respective names on Schedule A (the Company Common Stock, Company Preferred
Stock and Stock Options (as defined below) owned by each Stockholder are
referred to herein as such Stockholder's "Owned Shares"). Schedule A also
sets forth the number of options and/or warrants (the "Stock Options") to
purchase Company Common Stock held by each such Stockholder.
C. As an inducement and a condition to Honeywell's willingness to
enter into the Asset Purchase Agreement, the Stockholders are entering into
this Agreement.
D. Capitalized terms not defined herein shall have the meanings set
forth in the Asset Purchase Agreement.
E. This Agreement and the Asset Purchase Agreement are being entered
into simultaneously.
NOW, THEREFORE, in consideration of the execution and delivery by
Honeywell of the Asset Purchase Agreement and the mutual covenants,
conditions and agreements contained herein and therein, and intending to be
legally bound hereby, the parties agree as follows:
1. Voting Agreement. Each Stockholder agrees that, during the
time this Agreement is in effect, at any meeting of the stockholders of the
Company (a "Company Stockholders' Meeting"), however called, and at every
adjournment or postponement thereof, and on every action or approval by
written consent of the shareholders of the Company, he or it shall (i)
appear at the meeting or otherwise cause his, her or its Owned Shares,
together with any Company Common Stock and any Company Preferred Stock
acquired by the Stockholder after the date of this Agreement whether upon
the exercise of Stock Options or otherwise (the Stockholder's acquired
shares, together with the Stockholder's Owned Shares, are referred to
herein as the Stockholder's "Shares"), to be counted as present thereat for
purposes of establishing a quorum, (ii) vote, or execute consents in
respect of, his, her or its Shares, or cause his, her or its Shares to be
voted, or consents to be executed in respect thereof, in favor of the
approval and adoption of the Asset Purchase Agreement, and any action
required in furtherance thereof and (iii) vote, or execute consents in
respect of, his, her or its Shares, or cause his, her or its Shares to be
voted, or consents to be executed in respect thereof, against (A) any
agreement or transaction relating to any Takeover Proposal or transaction
or occurrence that if proposed and offered to the Company or its
stockholders (or any of them) would constitute a Takeover Proposal
(collectively, "Alternative Transactions"), (B) any amendment of the
Company's Certificate of Incorporation or By-laws or other proposal, action
or transaction involving the Company or any of its Subsidiaries or any of
its stockholders, which amendment or other proposal, action or transaction
could reasonably be expected to prevent or materially impede or delay the
consummation of the transactions contemplated by the Asset Purchase
Agreement or this Agreement or to deprive Honeywell of any material portion
of the benefits anticipated by Honeywell to be received from the
consummation of the transactions contemplated by the Asset Purchase
Agreement or this Agreement, or change in any manner the voting rights of
the Company Common Stock or the Company Preferred Stock (collectively,
"Frustrating Transactions") presented to the Stockholders of the Company
(regardless of any recommendation of the Board of Directors of the Company)
or in respect of which vote of consent of the Stockholder is requested or
sought and (C) any action or agreement that would result in a breach in any
material respect of any representation, warrant, covenant or agreement or
any other obligation of the Company under the Asset Purchase Agreement or
of the Stockholder hereunder. Notwithstanding anything to the contrary
herein, but subject to the terms and conditions of the Asset Purchase
Agreement, any Stockholder who is an officer or director of the Company may
take any action in such capacity required by his fiduciary duties under
Delaware law.
2. Irrevocable Proxy. Solely with respect to the matters
contained in clauses (i), (ii) and (iii) of Section 1 above, each of the
Stockholders hereby irrevocably constitutes and appoints Honeywell as his,
her or its attorney and proxy in accordance with Delaware General
Corporation Law, with full power of substitution and resubstitution, to
cause the Stockholder's Shares to be counted as present at any Company
Stockholders Meetings to vote his, her or its Shares at any Company
Stockholders' Meeting, however called, and execute consents in respect of
his, her or its Shares as and to the extent provided in Section 1. THIS
PROXY AND POWER OF ATTORNEY IS IRREVOCABLE AND COUPLED WITH AN INTEREST.
Each Stockholder hereby revokes all other proxies and powers of attorney
with respect to his, her or its Shares that he or it may have heretofore
appointed or granted, and no subsequent proxy or power of attorney shall be
granted.
3. Representations and Warranties of Honeywell. Honeywell
represents and warrants to the Stockholders as follows:
(a) Corporate Status and Authority. Honeywell is a corporation
duly incorporated, validly existing and in good standing under the laws of
Delaware and has the corporate power and authority to execute and deliver
this Agreement and perform its obligations under this Agreement. This
Agreement has been duly executed and delivered by Honeywell and constitutes
the legal, valid and binding obligation of Honeywell, enforceable against
Honeywell in accordance with its terms except for the Enforceability
Exceptions.
(b) No Conflicts. The execution, delivery and performance of this
Agreement by Honeywell, and the consummation of the transactions
contemplated by this Agreement, do not and will not conflict with,
contravene, result in a violation or breach of or default (with or without
the giving of notice or the lapse of time or both), or result in the
creation of any Lien upon any of the properties or assets of Honeywell,
under: (i) any provisions of any of the charter, by-laws or other
organization document of Honeywell, (ii) any statute, rule or regulation or
judgment, order, decree, license, permit or other authorization of any
court or other Governmental Authority applicable to Honeywell or any of its
properties or assets, or (iii) any contract, agreement, or other instrument
to which Honeywell is a party or by which its properties or assets may be
bound, except, in the case of clauses (ii) and (iii), for conflicts,
violations, breaches and defaults that, individually and in the aggregate,
would not impair the ability of Honeywell to perform its obligations under
this Agreement. No Consent is required on the part of Honeywell in
connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated by this Agreement, except for
Consents which, if not made or obtained, would not impair the ability of
Honeywell to perform its obligations under this Agreement.
(c) Brokers. All negotiations relating to this Agreement and the
transactions contemplated by this Agreement have been carried out without
the intervention of any Person retained by Honeywell in such manner as to
give rise to any valid claim against any Stockholder or any affiliate of
any Stockholder for any brokerage or finder's commission, fee or similar
compensation.
4. Representations and Warranties of the Stockholders. Each
Stockholder hereby severally and not jointly represents and warrants to
Honeywell as follows:
(a) Corporate Status and Authority. If the Stockholder is a
corporation or other entity, the Stockholder is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization. The Stockholder has the corporate power and authority to
execute and deliver this Agreement and perform its obligations under this
Agreement. This Agreement has been duly executed and delivered by the
Stockholder and constitutes the legal, valid and binding obligation of the
Stockholder, enforceable against such Stockholder in accordance with its
terms except for the Enforceability Exceptions.
(b) Ownership of Shares; Voting Rights. The Stockholder owns, of
record or beneficially, the Shares set forth opposite the Stockholder's
name on Schedule A. Except as described on Schedule A, the Stockholder has
sole voting power with respect to his, her or its Shares. Except pursuant
to this Agreement or as set forth on Schedule A, the Stockholder's Shares
are not subject to any voting trust agreement or other contract, agreement,
arrangement, commitment or understanding restricting or otherwise relating
to the voting, dividend rights or disposition of such Shares. The Shares
set forth opposite the Stockholder's name on Schedule A are the only equity
securities of the Company owned by the Stockholder. The Stockholder does
not have any option or other right to acquire any equity securities of the
Company other than the Stock Options set forth opposite the Stockholder's
name on Schedule A.
(c) No Conflicts. The execution, delivery and performance of this
Agreement by the Stockholder, and the consummation of the transactions
contemplated by this Agreement, do not and will not conflict with,
contravene, result in a violation or breach of or default (with or without
the giving of notice or the lapse of time or both), or result in the
creation of any Lien upon any of the properties or assets of such
Stockholder, under: (i) any provisions of any of the charter, by-laws or
other organization document of such Stockholder, if applicable, (ii) any
statute, rule or regulation or judgment, order, decree, license, permit or
other authorization of any court or other Governmental Authority applicable
to such Stockholder or any of its properties or assets, or (iii) any
contract, agreement, or other instrument to which such Stockholder is a
party or by which its properties or assets may be bound, except, in the
case of clauses (ii) and (iii), for conflicts, violations, breaches and
defaults that, individually and in the aggregate, would not impair the
ability of the Stockholder to perform its obligations under this Agreement.
No Consent is required on the part of the Stockholder in connection with
the execution and delivery of this Agreement or the consummation of the
transactions contemplated by this Agreement, except for Consents which, if
not made or obtained, would not impair the ability of the Stockholder to
perform its obligations under this Agreement.
(d) Brokers. All negotiations relating to this Agreement and the
transactions contemplated by this Agreement have been carried out without
the intervention of any Person retained by the Stockholder in such manner
as to give rise to any valid claim against Honeywell or any of its
affiliates for any brokerage or finder's commission, fee or similar
compensation.
5. Stockholder Covenants. Each Stockholder hereby severally
covenants and agrees as follows:
(a) Each Stockholder hereby agrees, while this Agreement is in
effect, and except as contemplated hereby, (i) not to sell, transfer,
pledge, encumber, assign or otherwise dispose of, or enter into any
contract, option or other arrangement or understanding with respect to the
sale, transfer, pledge, encumbrance, assignment or other disposition of,
any of his or its Shares, provided, however, that such Stockholder may
transfer, pledge, encumber, assign or otherwise dispose of his or its
Shares as a gift, in which case, as a condition of the gift, the
Stockholder must require the person to which any such Shares are to be
transferred, pledged, encumbered, assigned or otherwise disposed of to
agree in writing, pursuant to an agreement reasonably satisfactory to
Honeywell to which Honeywell is an express third-party beneficiary, that
with respect to such Shares such person shall be subject to the
restrictions and obligations hereunder as if such person was a Stockholder
hereunder, (ii) not to grant any proxies, powers of attorney or other
authorization or consent, deposit any Shares into a voting trust or enter
into a voting agreement with respect to any Shares and (iii) not to take
any action that would make any representation or warranty of such
Stockholder contained in this Agreement untrue or incorrect or have the
effect of preventing or disabling such Stockholder from performing his, her
or its obligations under this Agreement.
(b) Such Stockholder hereby agrees, while this Agreement is in
effect, to promptly notify Honeywell of the number of new shares of capital
stock of the Company acquired by such Stockholder, if any, after the date
of this Agreement.
(c) From the date hereof and continuing through the Closing Date,
the Stockholder shall not, and shall not authorize any of its
Representatives to, (i) directly or indirectly, initiate, solicit or
encourage, or take any other action to facilitate, any inquiries or the
making of any proposal that constitutes or could reasonably be expected to
lead to a Takeover Proposal or Frustrating Transaction, (ii) directly or
indirectly engage or participate in discussions or negotiations regarding
or provide any information or data to any Person or otherwise cooperate in
any way with, any Takeover Proposal or Frustrating Transaction, or (iii)
execute or enter into any Acquisition Agreement with respect to any
Takeover Proposal or Frustrating Transaction, except in each case to the
extent such discussions or negotiations are participated in by the
Stockholder solely in his capacity as a director of the Company in
accordance with the terms of the Asset Purchase Agreement. Without limiting
the foregoing, it is agreed that any violation of the restrictions set
forth in the preceding sentence by any Representative of the Stockholder
shall be a breach of this Agreement by the Stockholder. The Stockholder
shall immediately cease and cause to be terminated all existing discussions
and negotiations, if any, with any other Persons conducted heretofore with
respect to any Takeover Proposal and request the prompt return of all
confidential information previously furnished.
(d) Such Stockholder agrees not to engage in any action or omit
to take any action which would have the effect of preventing or disabling
such Stockholder from performing its obligations under this Agreement.
(e) Such Stockholder shall, promptly following the date of this
Agreement, authorize and request the Company to notify the Company's
transfer agent that there is a stop transfer order with respect to all of
the Shares (and that this Agreement places limits on the voting of the
Shares). Such Stockholder shall cause the certificated Shares owned or
acquired by him or it to have a legend placed conspicuously on such
certificate to the following effect:
The shares evidenced by this certificate are subject to a Voting
Agreement dated August 8, 2002, entered into between the record
owner of such shares and Honeywell International, Inc.
The Stockholder shall cause a counterpart of this Agreement to be deposited
with the Company at its principal place of business or registered office
where it shall be subject to the same right of examination by any
stockholder of the Company, in person or by agent or attorney, as are the
books and records of the Company.
(f) Notwithstanding anything to the contrary in this Agreement,
during the term of this Agreement, the Stockholders may collectively sell,
in open market transactions on the Nasdaq National Market System, an
aggregate number of shares of Company Common Stock equal to up to 400,000
shares of Company Common Stock, provided, however, that the Stockholders
shall provide the Purchaser prompt written notice of each such sale.
(g) Such Stockholder hereby irrevocably and unconditionally
waives all of his, her or its rights under the second sentence of Section
4(j) of the Company's Certificate of Incorporation to the extent such
sentence may apply to the transactions contemplated by the Asset Purchase
Agreement.
6. Termination. This Agreement shall be in effect until
termination and this Agreement shall terminate (without further action on
the part of any party hereto) automatically upon the earliest of (i) the
consummation of the transactions contemplated by the Asset Purchase
Agreement; (ii) the termation of the Asset Purchase Agreement for reasons
other than those described in clause (iii) below; and (iii) thirty (30)
days following the termination of the Asset Purchase Agreement pursuant to
Section 9.4(a)(ii), (iii) or (vi).
7. Miscellaneous.
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(a) Fees and Expenses. Except as otherwise provided in the Asset
Purchase Agreement, all costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be borne by the
party incurring such expenses.
(b) Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties.
(c) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REGARD TO ITS CONFLICT OF LAWS RULES OR PRINCIPLES.
(d) Notices. All notices or other communications under this
Agreement shall be in writing and shall be given (and shall be deemed to
have been duly given upon receipt) by delivery in person, by cable,
telegram, telex or other standard form of telecommunications, or by
registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
If to a Stockholder:
to the address set forth beneath
the name of such Stockholder on
Schedule A
If to Honeywell:
To the address set forth in the Asset Purchase Agreement
With a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
or to such other address as any party may have furnished to the other
parties in writing in accordance with this Section.
(e) Assignment; Binding Effect; No Third Party Beneficiaries.
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 party. Subject to the preceding sentence, this Agreement (including,
without limitation, the obligations of each Stockholder under Sections 1
and 2 hereof) shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns. Notwithstanding
anything contained in this Agreement to the contrary, nothing in this
Agreement, expressed or implied, is intended to confer on any person other
than the parties hereto or their respective successors and assigns any
rights, remedies, obligations or liabilities under or by reason of this
Agreement. Notwithstanding the foregoing, Honeywell may assign this
agreement to one or more of its affiliates.
(f) ENFORCEMENT. THE PARTIES HERETO AGREE THAT IRREPARABLE DAMAGE
WOULD OCCUR IN THE EVENT THAT ANY OF THE PROVISIONS OF THIS AGREEMENT WERE
NOT PERFORMED IN ACCORDANCE WITH THEIR SPECIFIC TERMS OR WERE OTHERWISE
BREACHED. IT IS ACCORDINGLY AGREED THAT, SUBJECT TO THE NEXT SENTENCE, 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 SOLELY IN THE COURTS OF THE STATE OF DELAWARE, THIS BEING
IN ADDITION TO ANY OTHER REMEDY TO WHICH THEY ARE ENTITLED AT LAW OR IN
EQUITY. EACH OF THE PARTIES HERETO (I) CONSENTS TO SUBMIT ITSELF TO THE
PERSONAL JURISDICTION OF ANY FEDERAL COURT LOCATED IN THE STATE OF DELAWARE
OR ANY DELAWARE STATE COURT IN THE EVENT ANY DISPUTE ARISES OUT OF THIS
AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, (II)
AGREES THAT IT SHALL NOT ATTEMPT TO DENY OR DEFEAT SUCH PERSONAL
JURISDICTION BY MOTION OR OTHER REQUEST FOR LEAVE FROM ANY SUCH COURT, AND
(III) AGREES THAT IT SHALL NOT BRING ANY ACTION RELATING TO THIS AGREEMENT
OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT IN ANY COURT
OTHER THAN A FEDERAL COURT SITTING IN THE STATE OF DELAWARE OR A DELAWARE
STATE COURT.
(g) Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute one and the same instrument. Each counterpart may consist of a
number of copies hereof each signed by less than all, but together signed
by all of the parties hereto.
(h) Further Assurances. Each party hereto shall perform such
further acts and execute such further documents as may reasonably be
required to carry out the provisions of this Agreement.
IN WITNESS WHEREOF, Honeywell and the Stockholders have caused
this Agreement to be duly executed as of the day and year first above
written.
HONEYWELL INTERNATIONAL INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Director, Corp. Development
VICTORIA AND EAGLE STRATEGIC FUND
By: /s/ P. Marmont
---------------------------------------
Name: P. Marmont
Title: Director
/s/ Xxxxxxxx X. Xxxxxx
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XXXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxx
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XXXXXX X. XXXXXX
SCHEDULE A
COMPANY COMPANY STOCK
STOCKHOLDER COMMON STOCK PREFERRED STOCK OPTIONS WARRANTS
----------- ------------ --------------- ------- --------
Victoria and Eagle(1) 2,120,000 130,233 0 0
Strategic Fund
c/o Victoria and Eagle
Asset Management S.A.
xxx Xxxxx 00
Xxxxxx, Xxxxxxxxxxx
Xxxxxxx X. Xxxxxx 17,700 32,559 0 0
Xxxxxxxxxxxx 00
Xxxxxxxxxx, Xxxxxxxxxxx
Xxxxxx X. Xxxxxx 1,200,000 0 795,851 200,000
c/o Ultrak, Inc.
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxx 00000
