EXHIBIT (d)(2)
TENDER AGREEMENT
AND
IRREVOCABLE PROXY
THIS TENDER AGREEMENT AND IRREVOCABLE PROXY, dated as of January 22,
2004 (this "Agreement"), is entered into by and among TZ HOLDINGS, INC.
("Buyer"), a corporation organized under the laws of Delaware, TZ ACQUISITION,
INC. ("Acquisition"), a corporation organized under the laws of Delaware and a
wholly-owned subsidiary of Buyer, and each of the shareholders of T-NETIX, INC.
(the "Company"), a corporation organized under the laws of Delaware, set forth
on Exhibit A hereto (each, a "Shareholder"). Capitalized terms used herein not
otherwise defined shall have the meanings set forth in the Merger Agreement
(defined below).
W I T N E S S E T H:
WHEREAS, Buyer, Acquisition and the Company propose to enter into an
Agreement and Plan of Merger, dated as of the date hereof (as the same may be
amended or supplemented, the "Merger Agreement"), pursuant to which Acquisition
is to make a tender offer to purchase, subject to the terms and conditions of
the Merger Agreement, any and all of the Shares of the Company and thereafter to
be merged with, and into, the Company (the "Merger");
WHEREAS, as of the date hereof, each Shareholder or such
Shareholder's Affiliates beneficially own (as such term is defined in Rule 13d-3
promulgated under the Exchange Act) and each Shareholder or such Shareholder's
Affiliates are entitled to dispose of (or to direct the disposition of) and to
vote (or to direct the voting of) the number of Shares set forth opposite such
Shareholder's name on Exhibit A hereto, as such shares may be adjusted by stock
dividend, stock split, recapitalization, combination, merger (other than the
Merger), consolidation, reorganization or other change in the capital structure
of the Company affecting the Shares (such shares, together with any other shares
the beneficial ownership of which is acquired by such Shareholder or such
Shareholder's Affiliates during the period from and including the date hereof
through and including the date on which this Agreement is terminated in
accordance with its terms, are collectively referred to herein as such
Shareholder's "Subject Shares"); and
WHEREAS, as a condition to the willingness of Buyer and Acquisition
to enter into the Merger Agreement, and as an inducement and in consideration
therefor, Buyer has required that each Shareholder agree, and each Shareholder
has agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. For purposes of this Agreement, capitalized
terms used and not defined herein shall have the respective meanings ascribed to
them in the Merger Agreement. When used in this Agreement, the following terms
shall have the respective meanings specified therefore below (such meanings to
be equally applicable to both the singular and plural forms of the terms
defined).
"Acquisition" shall have the meaning set forth in the preamble
hereto.
"Affiliate" of any Person shall mean any Person directly or
indirectly controlling, controlled by, or under common control with, such Person
and, if such Person is an individual, any member of the immediate family of such
Person (including parents, spouse, children and siblings) of such individual and
any trust whose principal beneficiary or trustee is such individual or one or
more members of such immediate family and any Person who is controlled by any
such member or trust; provided, that, for the purposes of this definition,
"control" (including with correlative meanings, the terms "controlled by" and
"under common control with"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities or partnership interests, by contract or
otherwise.
"Agreement" shall have the meaning set forth in the preamble hereto.
"Business Combination" shall have the meaning set forth in Section
3.1.
"Buyer" shall have the meaning set forth in the preamble hereto.
"Company" shall have the meaning set forth in the preamble hereto.
"Merger" shall have the meaning set forth in the first recital
hereof.
"Merger Agreement" shall have the meaning set forth in the first
recital hereof.
"Shareholder" shall have the meaning set forth in the preamble
hereto.
"Subject Shares" shall have the meaning set forth in the second
recital hereto.
ARTICLE II
TENDER OF SHARES
Section 2.1 Tender of Shares. Subject to the obligations of each
Shareholder set forth in Section 4.1, each Shareholder hereby agrees to tender
validly (and not to withdraw), or to cause to be tendered validly (and not
withdrawn), pursuant to and in accordance with the terms of the Offer and Rule
14d-2 under the Exchange Act, all of such Shareholder's Subject Shares (other
than Shares for which unexercised options are exercisable unless such options
shall
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have been exercised) not later than (i) the third (3rd) Business Day after
commencement of the Offer and (ii) in the case of any Subject Shares acquired
after the date hereof, whether upon the exercise of options, warrants or rights,
the conversion or exchange of convertible or exchangeable securities, or
otherwise, the next succeeding Business Day after acquisition thereof, and shall
cause such Shareholder's Subject Shares to remain validly tendered and not
withdrawn until the Offer is terminated or has expired without Acquisition
purchasing all Shares validly tendered in the Offer. Notwithstanding the
provisions of the preceding sentence, in the event that any Subject Shares are
for any reason withdrawn from the Offer or are not purchased pursuant to the
Offer, such Subject Shares shall remain subject to the terms of this Agreement.
The parties hereby acknowledge and agree that the obligation of Acquisition to
accept for payment and pay for Shares tendered into the Offer, including the
Subject Shares, is subject to the conditions set forth in Annex B to the Merger
Agreement.
ARTICLE III
VOTING AND PROXY
Section 3.1 Agreement to Vote the Subject Shares. Each Shareholder,
in its capacity as such, hereby agrees that during the period commencing on the
date hereof and continuing until the termination of this Agreement (such period,
the "Voting Period"), at any meeting (or any adjournment or postponement
thereof) of the holders of any class or classes of the capital stock of the
Company, however called, or in connection with any written consent of the
holders of any class or classes of the capital stock of the Company, such
Shareholder shall vote (or cause to be voted) the Subject Shares (a) in favor of
the Merger and the approval of the terms of the Merger Agreement and each of the
other transactions contemplated by the Merger Agreement and this Agreement and
any actions required in furtherance thereof, (b) against any action, transaction
or agreement that would result in a breach in any respect of any covenant,
representation or warranty or any other obligation or agreement of the Company
or any of its Subsidiaries under the Merger Agreement or of such Shareholder
under this Agreement and (c) except as otherwise agreed to in writing in advance
by Buyer, against the following actions (other than the Merger and the
transactions contemplated by the Merger Agreement): (i) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or any of its Subsidiaries and any Acquisition
Proposal; (ii) a sale, lease or transfer of a significant part of the assets of
the Company or any of its Subsidiaries, or a reorganization, recapitalization,
dissolution or liquidation of the Company or any of its Subsidiaries (each of
the actions in (i) or (ii), a "Business Combination"); and (iii) (A) any change
in the Persons who constitute the Board of Directors of the Company; (B) any
change in the present capitalization of the Company or any amendment of the
Company's Certificate of Incorporation or By-laws; (C) any other material change
in the corporate structure or business of the Company or any of its
Subsidiaries; or (D) any other action involving the Company or any of its
Subsidiaries that is intended, or could reasonably be expected, to impede,
interfere with, delay, postpone, or adversely affect the Merger and the
transactions contemplated by this Agreement or the Merger Agreement. Each
Shareholder hereby agrees that such Shareholder shall not, and shall cause its
Affiliates not to, enter into any agreement, letter of intent, agreement in
principle or understanding with any Person that violates or conflicts with, or
could reasonably be expected to violate or conflict with, the provisions and
agreements contained in this Agreement or the Merger Agreement.
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Section 3.2 Grant of Proxy. Each Shareholder hereby appoints Buyer,
Acquisition and any designee of Buyer or Acquisition, and each of them
individually, such Shareholder's proxy and attorney-in-fact, with full power of
substitution and resubstitution, to vote or act by written consent during the
Voting Period with respect to such Shareholder's Subject Shares in accordance
with Section 3.1. This proxy is given to secure the performance of the duties of
each Shareholder under this Agreement. Each Shareholder affirms that this proxy
is coupled with an interest and shall be irrevocable. Each Shareholder shall
take such further action or execute such other instruments as may be necessary
to effectuate the intent of this proxy.
Section 3.3 Nature of Proxy. The proxy and power of attorney granted
pursuant to Section 3.2 by each Shareholder shall be irrevocable during the term
of this Agreement, shall be deemed to be coupled with an interest sufficient in
law to support an irrevocable proxy and shall revoke all prior proxies granted
by such Shareholder. Each Shareholder agrees that it will not grant any proxy to
any Person that conflicts with the proxy granted by such Shareholder pursuant to
Section 3.2, and any attempt to do so shall be void and of no force and effect.
The power of attorney granted herein is a durable power of attorney and shall
survive the dissolution, bankruptcy, death or incapacity of such Shareholder.
ARTICLE IV
COVENANTS
Section 4.1 Generally. Each Shareholder agrees that, except as
contemplated by the terms of this Agreement, such Shareholder shall not and
shall cause its Affiliates not to (a) sell, transfer, tender, pledge, encumber,
assign or otherwise dispose of, or enter into any contract, option or other
agreement with respect to, or consent to, the sale, transfer, tender, pledge,
encumbrance, assignment or other disposition of, any or all of such
Shareholder's Subject Shares, (b) grant any proxies or powers of attorney in
respect of the Subject Shares, deposit any of such Shareholder's Subject Shares
into a voting trust or enter into a voting agreement with respect to any of such
Shareholder's Subject Shares and (c) take any action that would have the effect
of preventing or disabling such Shareholder from performing its obligations
under this Agreement.
Section 4.2 No Solicitation of Other Offers. Each Shareholder shall,
and shall use its best efforts to cause its Affiliates and each of its and their
respective officers, directors, employees, representatives, consultants,
investment bankers, attorneys, accountants and other agents immediately to,
cease any discussions or negotiations with any other Person or Persons that may
be ongoing with respect to any Acquisition Proposal. No Shareholder shall take,
and shall use its best efforts to cause its Affiliates and its and their
respective officers, directors, employees, representatives, consultants,
investment bankers, attorneys, accountants or other agents or Affiliates not to
take, any action (a) to encourage, solicit, initiate or facilitate, directly or
indirectly, the making or submission of any Acquisition Proposal, (b) to enter
into any agreement, arrangement or understanding with respect to any Acquisition
Proposal, or to agree to approve or endorse any Acquisition Proposal or enter
into any agreement, arrangement or understanding that would require the Company
to abandon, terminate or fail to consummate the Merger or any other transaction
contemplated by the Merger Agreement, (c) to initiate or participate in any way
in any discussions or negotiations with, or furnish or disclose any
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information to, any Person (other than Buyer or Acquisition) in connection with
any Acquisition Proposal, (d) to facilitate or further in any other manner any
inquiries or the making or submission of any proposal that constitutes, or may
reasonably be expected to lead to, any Acquisition Proposal or (e) to grant any
waiver or release under any standstill, confidentiality or similar agreement
entered into by the Company or any of its Affiliates or representatives. Without
limiting the foregoing, Buyer, Acquisition and the Company agree that any
violation of the restrictions set forth in this Section 4.2 by any Affiliate,
officer, director, employee, representative, consultant, investment banker,
attorney, accountant or other agent of a Shareholder or any of its Affiliates,
whether or not such Person is purporting to act on behalf of such Shareholder or
any of its Affiliates, shall constitute a breach by such Shareholder of this
Section 4.2. Each Shareholder shall enforce, to the fullest extent permitted
under applicable law, the provisions of any standstill, confidentiality or
similar agreement entered into by such Shareholder or any of its Affiliates or
representatives including, but not limited to, where necessary obtaining
injunctions to prevent any breaches of such agreements and to enforce
specifically the terms and provisions thereof in any court having jurisdiction.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS
Each Shareholder hereby represents and warrants to Buyer and
Acquisition as follows:
Section 5.1 Due Organization, Etc. Such Shareholder (if it is a
company or partnership) is duly organized and validly existing under the laws of
the jurisdiction of its incorporation or organization. Such Shareholder (a) if
it is a company or partnership, has all necessary power and authority and/or (b)
if it is an individual, has the capacity, in each case to execute and deliver
this Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby by such Shareholder (if it is a company or
partnership) have been duly authorized by all necessary action on the part of
such Shareholder.
Section 5.2 Ownership of Shares. Such Shareholder or its Affiliates
beneficially owns the number of Shares set forth opposite such Shareholder's
name on Exhibit A hereto. Such Shareholder has sole voting power and sole power
of disposition, in each case with respect to all of the Shares set forth
opposite such Shareholder's name on Exhibit A hereto, with no limitations,
qualifications or restrictions on such rights, subject only to applicable
securities laws and the terms of this Agreement.
Section 5.3 No Conflicts. Except for compliance with Antitrust Laws,
no filing with any Governmental Entity, no Permit and no authorization, consent
or approval of any other Person is necessary for the execution of this Agreement
by such Shareholder and the consummation by such Shareholder of the transactions
contemplated hereby. Neither the execution and delivery of this Agreement by
such Shareholder, the consummation by such Shareholder of the transactions
contemplated hereby nor the compliance by such Shareholder with any of the
provisions hereof shall (a) conflict with or result in any breach of any
applicable organizational documents applicable to such Shareholder, (b) result
in, or give rise to, a violation
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or breach of, or constitute (with or without notice or lapse of time or both) a
default under any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, license, Contract, commitment, arrangement, understanding,
agreement or other instrument or obligation of any kind to which such
Shareholder is a party or by which such Shareholder or any of such Shareholder's
Subject Shares, properties or assets may be bound or (c) assuming compliance
with Antitrust Laws, violate any order, writ, injunction, decree, judgment,
order, statute, rule or regulation applicable to such Shareholder or any of such
Shareholder's properties or assets.
Section 5.4 No Finder's Fees. Except as disclosed pursuant to the
Merger Agreement, no broker, investment banker, financial advisor or other
Person is entitled to any broker's, finder's, financial advisor's or other
similar fee or commission in connection with the transactions contemplated
hereby based upon arrangements made by or on behalf of such Shareholder.
Section 5.5 No Encumbrances. Such Shareholder's Subject Shares and
the certificates representing such Shareholder's Subject Shares are now, and at
all times during the term hereof will be, held by such Shareholder, or by a
nominee or custodian for the benefit of such Shareholder, free and clear of all
Liens except for any such encumbrances or proxies arising hereunder. The
transfer by such Shareholder of such Shareholder's Subject Shares to Acquisition
pursuant to the Stock Option shall pass to and unconditionally vest in
Acquisition good and valid title to all of such Shareholder's Shares, free and
clear of all claims, Liens, restrictions, limitations and encumbrances
whatsoever, other than any such encumbrances created by Acquisition.
Section 5.6 Reliance by Buyer. Such Shareholder understands and
acknowledges that Buyer is entering into, and causing Acquisition to enter into,
the Merger Agreement in reliance upon the execution and delivery of this
Agreement by such Shareholder.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF BUYER AND SUB
Buyer and Acquisition hereby jointly and severally represent and
warrant to each Shareholder as follows:
Section 6.1 Due Organization, Etc. Each of Buyer and Acquisition is
a corporation duly organized and validly existing under the laws of the
jurisdiction of its incorporation or organization. Each of Buyer and Acquisition
has all necessary power and authority to execute and deliver this Agreement and
to consummate the transactions contemplated hereby. The execution and delivery
of this Agreement and the consummation of the transactions contemplated hereby
by Buyer and Acquisition have been duly authorized by all necessary action on
the part of Buyer and Acquisition and, assuming its due authorization, execution
and delivery by each Shareholder, constitutes a valid and binding obligation of
each of Buyer and Acquisition, enforceable against each of Buyer and Acquisition
in accordance with its terms, except to the extent that its enforceability may
be subject to applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles.
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Section 6.2 No Conflicts. Except for compliance with Antitrust Laws,
no filing with any Governmental Entity, no Permit and no authorization, consent
or approval of any other Person is necessary for the execution of this Agreement
by Buyer or Acquisition and the consummation by Buyer and Acquisition of the
transactions contemplated hereby. Neither the execution and delivery of this
Agreement by Buyer or Acquisition nor the consummation by Buyer or Acquisition
of the transactions contemplated hereby shall (a) conflict with or result in any
breach of the organizational documents of Buyer or Acquisition, (b) result in a
violation or breach of, or constitute (with or without notice or lapse of time
or both) a default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
Contract, commitment, arrangement, understanding, agreement or other instrument
or obligation of any kind to which Buyer or Acquisition is a party or by which
Buyer or Acquisition or any of their respective properties or assets may be
bound or (c) assuming compliance with Antitrust Laws, violate any order, writ,
injunction, decree, judgment, order, statute, rule or regulation applicable to
Buyer or Acquisition or any of their respective properties or assets.
Section 6.3 Investment Intent. The purchase of the Subject Shares
from such Shareholder pursuant to this Agreement is for the account of Buyer or
Acquisition for the purpose of investment and not with a view to or for sale in
connection with any distribution thereof in violation of any applicable
provisions of the Securities Act.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Shareholder Capacity. No Shareholder executing this
Agreement who is or becomes during the term hereof a director or officer of the
Company makes any agreement or understanding herein in his or her capacity as
such director or officer. Each Shareholder executes this Agreement solely in his
or her capacity as the record holder or beneficial owner (or Affiliate of such
record holder or beneficial owner) of such Shareholder's Subject Shares and
nothing herein shall limit or affect any actions taken by a Shareholder or any
officer, director, partner or Affiliate of such Shareholder in his, her or its
capacity as an officer or director of the Company.
Section 7.2 Publication. Each Shareholder hereby permits Buyer and
Acquisition to publish and disclose in the Offer Documents and, if approval of
the stockholders of the Company is required under applicable law, in the Proxy
Statement (including all documents and schedules filed with the Commission) its
identity and ownership of such Shareholder's Subject Shares and the nature of
its commitments, arrangements, and understandings pursuant to this Agreement.
Section 7.3 Notices. All notices, requests, demands, waivers and
other communications required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been duly given if delivered in
person or mailed, certified or registered mail with postage prepaid, or sent by
facsimile (upon confirmation of receipt), as follows:
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(a) If to any Shareholder, to such Shareholder at the address set
forth immediately adjacent to such Shareholder's name on
Exhibit A:
with a copy (which shall not constitute notice) to:
Xxxxxx, Lidji & Werbner
0000 Xxx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) If to Buyer or Acquisition, to it at:
c/o H.I.G. Capital, LLC
0000 Xxxxxxxx Xxx Xxxxx, 00xx Xxxxx
Xxxxx, XX 00000
Attention: Mr. Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
White & Case LLP
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other Person or address as any party shall specify by notice in
writing to each of the other parties. All such notices, requests, demands,
waivers and communications shall be deemed to have been received on the date of
delivery, except for a notice of a change of address, which shall be effective
only upon receipt thereof.
Section 7.4 Entire Agreement. This Agreement contains the entire
understanding of the parties hereto with respect to the subject matter contained
herein and supersedes all prior agreements and understandings, oral and written,
with respect thereto, other than the Merger Agreement.
Section 7.5 Binding Effect; Benefit; Assignment. This Agreement
shall inure to the benefit of and be binding upon the parties hereto and their
permitted assigns. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto, except by
will or by the laws of descent and distribution, without the prior written
consent of each of the other parties, except that each of Buyer and Acquisition
may assign and transfer its rights and obligations hereunder to any direct or
indirect wholly owned
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Subsidiary of Buyer. Nothing in this Agreement, expressed or implied, is
intended to confer on any Person, other than the parties hereto, any rights or
remedies.
Section 7.6 Amendments and Modification. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated,
except upon the execution and delivery of a written agreement executed by all of
the relevant parties hereto.
Section 7.7 Further Actions. Each of the parties hereto agrees that
it will use its commercially reasonable efforts to do all things necessary to
convey Subject Shares pursuant to the Stock Option in accordance with this
Agreement.
Section 7.8 Headings. The descriptive headings of this Agreement are
inserted for convenience only, do not constitute a part of this Agreement and
shall not affect in any way the meaning or interpretation of this Agreement.
Section 7.9 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original, and all of which
together shall be deemed to be one and the same instrument.
Section 7.10 Applicable Law. THIS AGREEMENT AND THE LEGAL RELATIONS
BETWEEN THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAWS RULES
THEREOF. THE COMPETENT STATE OR FEDERAL COURTS LOCATED WITHIN THE STATE OF NEW
YORK WILL HAVE JURISDICTION OVER ANY AND ALL DISPUTES BETWEEN THE PARTIES
HERETO, WHETHER IN LAW OR EQUITY, ARISING OUT OF OR RELATING TO THIS AGREEMENT
AND THE AGREEMENTS, INSTRUMENTS AND DOCUMENTS CONTEMPLATED HEREBY, AND THE
PARTIES CONSENT TO AND AGREE TO SUBMIT TO THE JURISDICTION OF SUCH COURTS. EACH
OF THE PARTIES HEREBY WAIVES AND AGREES NOT TO ASSERT IN ANY SUCH DISPUTE, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY CLAIM THAT (A) SUCH PARTY IS
NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURTS, (B) SUCH PARTY AND
SUCH PARTY'S PROPERTY IS IMMUNE FROM ANY LEGAL PROCESS ISSUED BY SUCH COURTS OR
(C) ANY LITIGATION OR OTHER PROCEEDING COMMENCED IN SUCH COURTS IS BROUGHT IN AN
INCONVENIENT FORUM. THE PARTIES HEREBY AGREE THAT DELIVERY OR SENDING OF PROCESS
OR OTHER PAPERS IN CONNECTION WITH ANY SUCH ACTION OR PROCEEDING IN THE MANNER
PROVIDED IN SECTION 7.3, OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW,
SHALL BE VALID AND SUFFICIENT SERVICE THEREOF AND HEREBY WAIVE ANY OBJECTIONS TO
SERVICE ACCOMPLISHED IN THE MANNER HEREIN PROVIDED.
Section 7.11 Severability. If any term, provision, covenant or
restriction contained in this Agreement is held by a court of competent
jurisdiction or other authority to be invalid, void, unenforceable or against
its regulatory policy, the remainder of the terms, provisions, covenants and
restrictions contained in this Agreement shall remain in full force and effect
and shall in no way be affected, impaired or invalidated, and this Agreement
shall be
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reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable term, provision, covenant or restriction or any portion
thereof had never been contained herein.
Section 7.12 Interpretation. When a reference is made in this
Agreement to a Section, such reference shall be to a Section of this Agreement
unless otherwise indicated. The table of contents and headings contained in this
Agreement are for convenience of reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement. Whenever the words
"include", "includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation."
Section 7.13 Specific Enforcement. The parties 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. Accordingly, the parties shall be entitled to an injunction
or injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement, this being in addition to any other
remedy to which they are entitled at law or in equity.
Section 7.14 Waiver of Jury Trial. Each of the parties to this
Agreement hereby irrevocably waives all right to a trial by jury in any action,
proceeding or counterclaim arising out of or relating to this Agreement or the
transactions contemplated hereby.
Section 7.15 Termination. This Agreement shall terminate, and none
of Buyer, Acquisition or any Shareholder shall have any rights or obligations
hereunder and this Agreement shall become null and void and have no effect upon
the earliest to occur of: (a) the date on which the Offer is terminated or has
expired, in accordance with the terms and provisions of the Merger Agreement,
without Acquisition purchasing any Shares pursuant thereto; and (b) the date
determined by the mutual consent of the parties hereto. Notwithstanding the
foregoing, Article V, Article VI and this Article VII shall survive the
termination of this Agreement. Nothing in this Section 7.15 shall relieve any
party to this Agreement of liability for breach of this Agreement.
* * *
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IN WITNESS WHEREOF, Buyer, Acquisition and each Shareholder have
caused this Agreement to be duly executed as of the day and year first above
written.
TZ HOLDINGS, INC.
By /s/ Xxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
TZ ACQUISITION, INC.
By /s/ Xxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
SHAREHOLDERS:
------------
XXXXXXX X. XXXX REV. TRUST
By /s/ Xxxxxxx X. Xxxx
------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Trustee
/s/ W.P. (Xxxx) Buckthal
------------------------------------------
W. P. (Xxxx) Xxxxxxxx
/s/ Xxxxxx X. Xxxxxx
------------------------------------------
Xxxxxx X. Xxxxxx
CREE CAPITAL INVESTMENTS, LTD.
BY /s/ Xxxxxxx Xxxx
------------------------------------------
Name: Xxxxxxx Xxxx
Title:
/s/ Xxxxxx X. Xxxx
------------------------------------------
Xxxxxx X. Xxxx
/s/ Xxxxxxx X. Xxxx
------------------------------------------
Xxxxxxx X. Xxxx
/s/ Xxxxxxx X. Xxxx
------------------------------------------
Xxxxxxx X. Xxxx
/s/ Xxxxxx X. Xxxxx
------------------------------------------
Xxxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxxx
------------------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxx Xxxx
------------------------------------------
Xxxxx Xxxx
EXHIBIT A
SHAREHOLDER SUBJECT SHARES ADDRESS
----------- -------------- -------
W. P. (Xxxx) Buckthal 673,856 000 X. Xxxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000-0000
000-000-0000
Xxxxxx X. Xxxxxx 1,803,240 Gaelic Management
Tallgrass Executive Park, Bldg. 1900
0000 Xxxx 00xx Xx. Xxxxx
Xxxxxxx, XX 00000-0000
000-000-0000
Cree Capital 337,800 200 Lone Star Dr.
Investments, Ltd. Xxxxxxxxxx, XX 00000
000-000-0000
Xxxxxx X. Xxxx 227,022 The Cree Companies
000 X. Xxxxxxxxx, Xxxxx 000-X
Xxxxx, XX 00000
000-000-0000
Xxxxxxx X. Xxxx 310,515 T-NETIX, Inc.
0000 Xxxxxxxx Xx., Xxxxx 000
Xxxxxxxxxx, XX 00000
000-000-0000
Xxxxxxx X. Xxxx, TTEE 43,870 Same as Xxxxxxx X. Xxxx above
For Xxxxxxx X. Xxxx Rev. Trust
Xxxxxxx X. Xxxx 113,847 0000 Xxxxxxxxxx Xx.
Xxxxxxx, XX 00000
000-000-0000
Xxxxxx X. Xxxxx 290,000 Seapoint at Naples Cay Condo
00 Xxxxxxx Xx., #0 Xxxxx
Xxxxxx, XX 00000-0000
000-000-0000
Xxxxxx X. Xxxxxx 550,000 Property Management
0000 Xxxx 00xx Xx. Xxxxx
Xxxxxxx, XX 00000
000-000-0000
Xxxxx Xxxx 611,428 000 X. Xxxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
000-000-0000
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ARTICLE I
DEFINITIONS.............................................................2
Section 1.1 Definitions................................................2
ARTICLE II
TENDER OF SHARES........................................................2
Section 2.1 Tender of Shares...........................................2
ARTICLE III
VOTING AND PROXY........................................................3
Section 3.1 Agreement to Vote the Subject Shares.......................3
Section 3.2 Grant of Proxy.............................................4
Section 3.3 Nature of Proxy............................................4
ARTICLE IV
COVENANTS...............................................................4
Section 4.1 Generally..................................................4
Section 4.2 No Solicitation of Other Offers............................4
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS..........................5
Section 5.1 Due Organization, Etc......................................5
Section 5.2 Ownership of Shares........................................5
Section 5.3 No Conflicts...............................................5
Section 5.4 No Finder's Fees...........................................6
Section 5.5 No Encumbrances............................................6
Section 5.6 Reliance by Buyer..........................................6
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF BUYER AND SUB.........................6
Section 6.1 Due Organization, Etc......................................6
Section 6.2 No Conflicts...............................................7
Section 6.3 Investment Intent..........................................7
(i)
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ARTICLE VII
MISCELLANEOUS...........................................................7
Section 7.1 Shareholder Capacity.......................................7
Section 7.2 Publication................................................7
Section 7.3 Notices....................................................7
Section 7.4 Entire Agreement...........................................8
Section 7.5 Binding Effect; Benefit; Assignment........................8
Section 7.6 Amendments and Modification................................9
Section 7.7 Further Actions............................................9
Section 7.8 Headings...................................................9
Section 7.9 Counterparts...............................................9
Section 7.10 Applicable Law.............................................9
Section 7.11 Severability...............................................9
Section 7.12 Interpretation............................................10
Section 7.13 Specific Enforcement......................................10
Section 7.14 Waiver of Jury Trial......................................10
Section 7.15 Termination...............................................10
(ii)
