Exhibit 3
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as of August 8, 2002, by
and between Honeywell International Inc., a Delaware corporation
("Honeywell"), and the individual listed on Schedule A hereto (the
"Stockholder").
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 Stockholder owns 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 her
name 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 the Stockholder.
C. As an inducement and a condition to Honeywell's willingness to
enter into the Asset Purchase Agreement, the Stockholder is 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. The 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, she shall (i) appear at
the meeting or otherwise cause her 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, her Shares, or cause
her 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, her Shares, or cause her 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.
2. Irrevocable Proxy. Solely with respect to the matters
contained in clauses (i), (ii) and (iii) of Section 1 above, the
Stockholder hereby irrevocably constitutes and appoints Honeywell as her
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 her Shares at any Company Stockholders' Meeting, however
called, and execute consents in respect of her Shares as and to the extent
provided in Section 1. THIS PROXY AND POWER OF ATTORNEY IS IRREVOCABLE AND
COUPLED WITH AN INTEREST. The Stockholder hereby revokes all other proxies
and powers of attorney with respect to her Shares that she 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 Stockholder 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 the Stockholder or any affiliate of
the Stockholder for any brokerage or finder's commission, fee or similar
compensation.
4. Representations and Warranties of the Stockholders. The
Stockholder hereby severally and not jointly represents and warrants to
Honeywell as follows:
(a) 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 her 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.
(b) 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 the
Stockholder, under: (i) any statute, rule or regulation or judgment, order,
decree, license, permit or other authorization of any court or other
Governmental Authority applicable to the Stockholder or any of her
properties or assets, or (ii) any contract, agreement, or other instrument
to which the Stockholder is a party or by which her properties or assets
may be bound, except for conflicts, violations, breaches and defaults that,
individually and in the aggregate, would not impair the ability of the
Stockholder to perform her 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.
(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 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. The Stockholder hereby severally
covenants and agrees as follows:
(a) The 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 her Shares, provided, however, that the Stockholder may transfer,
pledge, encumber, assign or otherwise dispose of her 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 the Stockholder contained in this Agreement untrue or
incorrect or have the effect of preventing or disabling the Stockholder
from performing her obligations under this Agreement.
(b) The 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 the 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 her
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. 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) The Stockholder agrees not to engage in any action or omit to
take any action which would have the effect of preventing or disabling the
Stockholder from performing her obligations under this Agreement.
(e) The 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). The Stockholder shall cause the certificated Shares owned or
acquired by her 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) 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 termination 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 the 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, Corporate Development
/s/ Xxxxxx Xxxxxxxxx
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XXXXXX XXXXXXXXX
SCHEDULE A
COMPANY COMPANY STOCK
STOCKHOLDER COMMON STOCK PREFERRED STOCK OPTIONS WARRANTS
Xxxxxx Xxxxxxxxx 200,000 32,559 0 0
Xxxxxxxxx 00
Xxxxxxxx
Xxxxxxxxxxx
