Exhibit B
PLANETCAD STOCKHOLDER VOTING AGREEMENT
THIS AGREEMENT, dated as of May 1, 2002 (the "Agreement"), is entered
into among Avatech Solutions, Inc., a Delaware corporation (the "Company") and
certain stockholders of PlanetCAD Inc., a Delaware corporation ("Parent"), whose
names appear on Schedule I hereto (collectively, the "Stockholders").
WITNESSETH:
WHEREAS, on May 1, 2002, Parent, Raven Acquisition Corporation, a
Delaware corporation ("Sub"), and the Company entered into an Agreement and Plan
of Merger (the "Merger Agreement"), which provides for, upon the terms and
subject to the conditions set forth therein, the merger of Sub with and into the
Company (the "Merger");
WHEREAS, as of the date hereof, each Stockholder is the beneficial
owner (as defined in Rule 13d-3 under the Exchange Act) of the number of shares
of Parent Common Stock set forth opposite such Stockholder's name on Schedule I
hereto (the "Owned Shares");
WHEREAS, as a condition to the Company's obligations under the Merger
Agreement, the Company has required that the Stockholders enter into this
Agreement; and
WHEREAS, in order to induce the Company to consummate the Merger, the
Stockholders are willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, the Company and each of the Stockholders, severally and not jointly,
hereby agree as follows:
ARTICLE I
TRANSFER AND VOTING OF SHARES;
OTHER COVENANTS OF THE STOCKHOLDERS
1.1. Voting of Shares. Each Stockholder agrees, at any meeting of the
stockholders of Parent, however called, and in any action by consent of the
stockholders of Parent, that such Stockholder shall vote the Owned Shares (i) in
favor of the approval and adoption of the Merger Agreement (as amended from time
to time) and (ii) in favor of any other matter necessary for consummation of the
transactions contemplated by the Merger Agreement which is considered at any
such meeting of stockholders, and in connection therewith to execute any
documents which are necessary or appropriate in order to effectuate the
foregoing, including the ability for the Company or its nominees to vote such
Owned Shares directly solely with respect to the matters referred to in this
Section 1.1.
1.2. No Inconsistent Arrangements. Except as contemplated by this
Agreement, each Stockholder shall not during the term of this Agreement (i)
transfer (which term shall include, without limitation, any sale, assignment,
gift, pledge, hypothecation or other disposition), or consent to any transfer
of, any or all of such Stockholder's Owned Shares or any interest therein, or
create or permit to exist any Encumbrance (as defined below) on such Owned
Shares unless such transfer or Encumbrance is done subject to the voting
requirements set forth in Section 1.1 and subject to any such transferee or the
beneficiary of any such Encumbrance executing a Proxy (as defined below), (ii)
enter into any contract, option or other agreement or understanding with respect
to any transfer of any or all of such Owned Shares or any interest therein on
terms that would, at the time of entering into such contract, option or other
agreement or understanding or with the passage of time, violate clause (i)
above, (iii) grant any proxy, power-of-attorney or other authorization in or
with respect to such Owned Shares, (iv) deposit such Owned Shares into a voting
trust or enter into a voting agreement or arrangement with respect to such Owned
Shares or (v) take any other action that would in any way restrict, limit or
interfere with the performance of such Stockholder's obligations hereunder or
the transactions contemplated hereby or by the Merger Agreement. Notwithstanding
anything in this Agreement to the contrary, each Stockholder may transfer all or
any of such Stockholder's Owned Shares to any trust, partnership or similar
vehicle formed for estate, tax or family planning purposes of which such
Stockholder controls the vote, provided that as a condition of such transfer,
such Stockholder notifies the Company and provides the Company with
documentation reasonably satisfactory to the Company as to the consent of the
transferee to be bound by all of the provisions of this Agreement.
1.3. Proxy. Each Stockholder hereby revokes any and all prior proxies
or powers-of-attorney in respect of any of the Owned Shares and constitutes and
agrees to execute the proxy in the form attached hereto as Exhibit A (the
"Proxy").
1.4. Stop Transfer. Each Stockholder shall not request that Parent
register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Owned Shares, unless such
transfer is made in compliance with this Agreement and acknowledges that Parent
and the Company may notify Parent's transfer agent of the terms hereof.
1.5. Disclosure. Each Stockholder hereby authorizes Parent and the
Company to publish and disclose in the Proxy Statement/Prospectus (including all
documents and schedules filed with the SEC) its identity and ownership of the
Owned Shares and the nature of its commitments, arrangements and understandings
under this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF EACH STOCKHOLDER
Each Stockholder hereby represents and warrants to the Company as
follows:
2.1. Due Authorization, etc. Such Stockholder has all requisite
personal or corporate power and authority to execute, deliver and perform this
Agreement, to appoint the Company as its Proxy and to consummate the
transactions contemplated hereby. The execution, delivery and performance of
this Agreement, the appointment of the Company as Stockholder's Proxy and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary action on the part of such Stockholder. This Agreement has been
duly executed and delivered by or on behalf of such Stockholder and constitutes
a legal, valid and binding obligation of such Stockholder, enforceable against
such Stockholder in accordance with its
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terms, except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws and except that the. availability of equitable
remedies, including specific performance, is subject to the, discretion of the
court before which any proceeding for such remedy may be brought
2.2. No Conflicts; Required Filings and Consents.
(a) The execution and delivery of this Agreement by such Stockholder
does not, and the performance of this Agreement by such Stockholder will not
conflict with or violate any document, agreement, law, regulation or order to
which such Stockholder is subject or by which such Stockholder or any of such
Stockholder's assets is bound or affected.
(b) The execution and delivery of this Agreement by such Stockholder
does not, and the performance of this Agreement by such Stockholder will not,
require any consent, approval, authorization or permit of, or filing with or
notification to, any governmental or regulatory authority (other than any
necessary filing under the Exchange Act), domestic or foreign, except where the
failure to obtain such consents, approvals, authorizations at permits, or to
make such filings or notifications, would not prevent or delay the performance
by such Stockholder of such Stockholder's obligations under this Agreement.
2.3. Title to Shares. Such Stockholder is the sole record and
beneficial owner of the Owned Shares, free and clear of any pledge, lien,
security interest, mortgage, charge, claim, equity, option, proxy, voting
restriction, voting trust or agreement, understanding, arrangement, right of
first refusal, limitation on disposition, adverse claim of ownership or use or
encumbrance of any kind ("Encumbrances"), other than restrictions imposed by the
securities laws or pursuant to this Agreement or the Merger Agreement or as
otherwise disclosed by such Stockholder to the Company.
ARTICLE III
MISCELLANEOUS
3.1. Definitions. Terms used but not otherwise defined in this
Agreement have the meanings ascribed to such terms in the Merger Agreement.
3.2. Termination. This Agreement shall terminate and be of no further
force and effect (i) by the unanimous written consent of the parties hereto or
(ii) automatically and without any required action of the parties hereto upon
(x) the Effective Time, (y) any amendment to the Merger Agreement that
materially and adversely affects the economic interests of the Stockholders, or
(z) the termination of the Merger Agreement in accordance with its terms. No
such termination of this Agreement shall relieve any party hereto from any
liability for any breach of this Agreement prior to termination.
3.3. Further Assurance. From time to time, at another party's request
and without consideration, each party hereto shall execute and deliver such
additional documents and take all such further action as may be necessary or
desirable to consummate and make effective, in the most expeditious manner
practicable, the transaction contemplated by this Agreement. Each
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Stockholder understands and acknowledges that the Company is proceeding with the
Merger in reliance upon each Stockholder's execution and delivery of this
Agreement.
3.4. Certain Events. Each Stockholder agrees that this Agreement and
such Stockholder's obligations hereunder shall attach to such Stockholder's
Owned Shares and shall be binding upon any person or entity to which legal or
beneficial ownership of such Owned Shares shall pass, whether by operation of
law or otherwise, including, without limitation, such Stockholder's heirs,
guardians, administrators, or successors. Notwithstanding any transfer of Owned
Shares, the transferor shall remain liable for the performance of all its
obligations under this Agreement.
3.5. No Waiver. The failure of any party hereto to exercise any right,
power, or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, 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. Any party hereto may (i) extend the time for the performance of any
of the obligations or other acts of the other parties hereto, (ii) waive any
inaccuracies in the representations and warranties of the other parties hereto
contained herein or in any document delivered pursuant hereto and (iii) waive
compliance by the other parties hereto with any of their agreements or
conditions contained herein. Any agreement on the part of a party hereto to any
such extension or waiver shall be valid only as against such party and only if
set forth in an instrument in writing signed by such party. The failure of any
party hereto to assert any of its rights under this Agreement or otherwise shall
not constitute a waiver of those rights.
3.6. Specific Performance. Each Stockholder acknowledges that if such
Stockholder fails to perform any of its obligations under this Agreement
immediate and irreparable harm or injury would be caused to the Company for
which money damages would not be an adequate remedy. In such event, each
Stockholder agrees that the Company shall have the right, in addition to any
other rights it may have, to specific performance of this Agreement.
Accordingly, if the Company should institute an action or proceeding seeking
specific enforcement of the provisions hereof, each Stockholder hereby waives
the claim or defense that the Company has an adequate remedy at law and hereby
agrees not to assert in any such action or proceeding the claim or defense that
such a remedy at law exists. Each Stockholder further agrees to waive any
requirements for the securing or posting of any bond in connection with
obtaining any such equitable relief.
3.8. Expenses. All fees, costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
the party incurring such fees, costs and expenses.
3.9. 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 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
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modify this Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner to the end that transactions
contemplated hereby are fulfilled to the maximum extent possible.
3.10. Entire Agreement; No Third-Party Beneficiaries. This Agreement
constitutes the entire agreement and supersedes any and all other prior
agreements and undertakings, both written and oral, among the parties, or any of
them, with respect to the subject matter hereof, and this Agreement is not
intended to confer upon any other person any rights or remedies hereunder.
3.11. Assignment. This Agreement shall not be assigned by operation of
law or otherwise.
3.12. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware applicable to
contracts executed in and to be performed entirely within that State.
3.13. Amendment. This Agreement may not be amended except by an
instrument in writing signed by the parties hereto.
3.14. 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 to be an original but all of which shall
constitute one and the same agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Company and the Stockholders have caused this
Agreement to be executed as of the date first written above.
AVATECH SOLUTIONS, INC.
By:________________________________________
Name:__________________________________
Title:_________________________________
STOCKHOLDERS
Capstone Ventures SBIC, LP
By: Capstone SBIC Management, Inc.
/s/ Xxxxxx X. Xxxxxxx
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Print Name: :Xxxxxx X. Xxxxxxx
SCHEDULE I
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Name and Address of Stockholder Number of Shares Beneficially Owned
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EXHIBIT A
IRREVOCABLE PROXY
By its execution hereof, and in order to secure its obligations under
the PlanetCAD Stockholder Voting Agreement (the "Voting Agreement") of even date
herewith among Avatech Solutions, Inc., a Delaware corporation (the "Company"),
and certain stockholders of PlanetCAD Inc., a Delaware corporation ("Parent"),
the undersigned (the "Stockholder") hereby irrevocably constitutes and appoints
the Company and its successors and assigns, with full power of substitution and
resubstitution, from the date hereof to the termination of the Voting Agreement,
as such Stockholder's true and lawful attorney and proxy (its "Proxy"), for and
in such Stockholder's name, place and stead, to demand that the Secretary call a
special meeting of Stockholders of the Company for the purpose of considering
any action related to the Merger Agreement and to vote each of the Owned Shares
of the Stockholder as such Stockholder's Proxy at every annual, special or
adjourned meeting of stockholders of Parent, and to sign on behalf of such
Stockholder (as a Stockholder of Parent) any ballot, proxy, consent, certificate
or other document relating to Parent that law permits or requires, in a manner
consistent with Section 1.1 of the Voting Agreement. This Proxy is coupled with
an interest and the Stockholder intends this Proxy to be irrevocable to the
fullest extent permitted by law. The Stockholder hereby revokes any proxy
previously granted by such Stockholder with respect to the Owned Shares.
Capitalized terms used but not defined herein shall have the meaning set forth
in the Voting Agreement. The Stockholder shall perform such further acts and
execute such further documents and instruments as may reasonably be required to
vest in the Company, or any of its nominees, the power to carry out and give
effect to the provisions of this Proxy.
IN WITNESS WHEREOF, the undersigned has executed this
Irrevocable Proxy this 10th day of June, 2002.
Capstone Ventures SBIC, LP
By: Capstone SBIC Management, Inc.
/s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx, President
Address:
0000 Xxxx Xxxx Xxxx, Xxxxx 0-000
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Xxxxx Xxxx, XX 00000
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