EXHIBIT 7(b)
COMPANY VOTING AGREEMENT
THIS COMPANY VOTING AGREEMENT (this "Agreement") is entered into this 24th
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day of June, 1999, by and among ANSWERTHINK CONSULTING GROUP, INC., a Florida
corporation ("Acquiror"), DARWIN ACQUISITION CORP., a Delaware corporation and a
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wholly-owned subsidiary of Acquiror ("Merger Sub"), and each other Person listed
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on the signature page hereof who is a stockholder (each a "Stockholder" and
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collectively, the "Stockholders") of THINK NEW IDEAS, INC., a Delaware
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corporation (the "Company").
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WHEREAS, the Stockholders own of record and beneficially the shares of
common stock, par value $.0001 per share of the Company ("Company Common Stock")
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set forth opposite their respective names on Schedule A hereto and desire to
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enter into this Agreement with respect to such shares of Company Common Stock;
WHEREAS, Acquiror, Merger Sub and the Company have contemporaneously with
the execution of this Agreement entered into an Agreement and Plan of Merger
(the "Merger Agreement"), dated as of the date hereof, which provides, among
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other things, for the merger (the "Merger") of the Merger Sub with and into the
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Company pursuant to the terms and conditions thereof; capitalized terms used
herein and not otherwise defined shall have the meanings given to such terms as
in the Merger Agreement;
WHEREAS, as an essential condition and inducement to Acquiror and Merger
Sub entering into the Merger Agreement, Acquiror has required that the
Stockholders agree, and the Stockholders have agreed, to enter into this
Agreement; and
NOW, THEREFORE, the parties hereto, in consideration of the foregoing, the
mutual covenants and agreements contained herein and in the Merger Agreement and
for other good and valuable consideration, the receipt and sufficiency of which
hereby are acknowledged, and intending to be legally bound hereby, agree as
follows:
SECTION 1. VOTING
(a) Each Stockholder hereby agrees to appear, or to cause the holder of
record on any applicable record date (the "Record Holder") to appear, in person
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or by proxy, for the purpose of obtaining a quorum at any annual or special
meeting of stockholders of the Company and at any adjournment thereof at which
matters relating to the Merger, Merger Agreement or any transaction contemplated
thereby are considered; and
(b) Each Stockholder further agrees that, it shall vote, or cause the
Record Holder to vote, in person or by proxy all of the shares of Capital Stock,
and any other voting interests in the Company owned or hereafter acquired
beneficially or of record by such Stockholder:
(i) in favor of the Merger and the adoption of the Merger Agreement
and the transactions contemplated thereby (including any amendments or
modifications of the terms thereof approved by the Board of Directors of the
Company and by Acquiror) in connection with any meeting of, or solicitation of
consents from, the stockholders of the Company at which or in connection with
which the Merger and the Merger Agreement are submitted for the consideration
and vote of the stockholders of the Company;
(ii) against approval or adoption of resolutions which would have
the effect of preventing or materially delaying consummation of the Merger or
otherwise preventing or materially delaying the Company from performing its
obligations under the Merger Agreement; and
(iii) against any action which would constitute a material breach of
any provision of the Merger Agreement.
To the extent inconsistent with the foregoing provisions of this
Section 1, each Stockholder revokes any and all previous proxies with respect to
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shares of Capital Stock owned beneficially or of record by such Stockholder and
agrees not to grant any proxy with respect to and any other voting interests in
the Company owned or hereafter acquired beneficially or of record by such
Stockholder.
SECTION 2. PROXY; FURTHER ASSURANCES
(a) Contemporaneously with the execution of this Agreement: (i) each
Stockholder has delivered to Acquiror a proxy in the form attached to this
Agreement as Exhibit A, which shall be irrevocable to the fullest extent
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permitted by law and to the extent provided therein, with respect to the shares
referred to therein (the "Proxy"); and (ii) each Stockholder has caused to be
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delivered to Acquiror an additional proxy (in the form attached hereto as
Exhibit A) executed on behalf of the record owner of any outstanding shares of
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Company Common Stock that are owned beneficially (within the meaning of Rule
13d-3 under the Exchange Act), but not of record, by such Stockholder, which
proxy shall be irrevocable to the fullest extent permitted by law and to the
extent provided therein, with respect to the shares referred to therein.
(b) Each Stockholder shall, at such Stockholder's own expense,
perform such further acts and execute such further documents and instruments as
may reasonably be required to vest in Acquiror the power to carry out and give
effect to the provisions of this Agreement. Without limiting the generality of
the foregoing, none of the parties hereto shall enter into any agreement or
arrangement (or alter, amend or terminate any existing agreement or arrangement)
or transaction if such action would materially impair or materially interfere
with the ability of any party to effectuate, carry out and comply with all of
the terms of this Agreement.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF EACH STOCKHOLDER
Each Stockholder hereby, severally and not jointly, represents and
warrants to Acquiror as follows:
(a) Such Stockholder has the legal capacity and all other power and
authority necessary to enter into this Agreement, to perform the obligations
hereunder and to consummate the transactions contemplated hereby. This
Agreement has been duly executed and delivered by such Stockholder and, assuming
due authorization, execution and delivery of this Agreement by Acquiror, Merger
Sub and the other parties hereto, constitutes a legal, valid and binding
obligation of such Stockholder, enforceable in accordance with its terms, except
as such enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws of general applicability relating to or
affecting creditor's rights generally and by the application of general
principles of equity.
(b) The execution and delivery of this Agreement and the consummation
of the transactions herein contemplated will not (i) to the knowledge of such
Stockholder, conflict with or violate any law, regulation, court order, judgment
or decree applicable to such Stockholder or by which the property of such
Stockholder is bound or affected, or (ii) conflict with or result in any breach
of or constitute a default under any contract or agreement to which such
Stockholder is a party or by which such Stockholder or such Stockholder's
property is bound or affected, which conflict, violation, breach or default
would materially impair or materially interfere with such Stockholder's ability
to perform its obligations under this Agreement.
(c) The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby do not and will not require any consent
or other action by any Person under, any provision of any agreement, contract or
other instrument binding on such Stockholder.
(d) The shares of Company Common Stock reflected on Schedule A as
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being owned by such Stockholder are the only shares of voting Capital Stock of
the Company or any other voting interests in the Company owned beneficially or
of record
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by such Stockholder, and except as set forth in Schedule A, such Stockholder
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does not own any other options, warrants or rights to acquire shares of any
class of capital stock of the Company or any other voting interests in the
Company. Such Stockholder has the sole power respecting voting and transfer of
such Stockholder's shares of Capital Stock. Except as set forth on Schedule
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3(d) hereto, the shares and certificates representing such shares held by such
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Stockholder are owned as indicated on Schedule A by such Stockholder, free and
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clear of all liens, claims, security interests, proxies, options, warrants or
other rights, voting trusts or agreements, understandings or arrangements or any
other Encumbrances whatsoever, except for any such Encumbrances or proxies
arising hereunder.
(e) No investment banker, broker, finder or other intermediary is
entitled to a fee or commission in respect of this Agreement based upon any
arrangement or agreement made by or on behalf of such Stockholder.
SECTION 4. COVENANTS OF EACH STOCKHOLDER
(a) From the date of this Agreement until the Effective Time or, if
earlier, the termination of this Agreement pursuant to Section 15 hereof, each
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Stockholder agrees severally and not jointly that such Stockholder will not, and
will use its "reasonable efforts" (as defined in the Merger Agreement) to not
permit any of the Representatives of the Company to, directly or indirectly, (i)
initiate, solicit, encourage or otherwise facilitate (including by way of
furnishing information), any inquiries or the making of any proposal or offer
that constitutes, or may reasonably be expected to lead to an Acquisition
Proposal, (ii) enter into or maintain or continue discussions or negotiate with
any Person in furtherance of such inquiries or to obtain an Acquisition
Proposal, or (iii) agree to, approve, recommend, or endorse any Acquisition
Proposal, or authorize or permit any of such Stockholder's Representatives to
take any such action and, such Stockholder shall promptly notify Acquiror of any
such inquiries and proposals received by such Stockholder or, to such
Stockholder's knowledge, any of such Stockholder's Representatives, relating to
any of such matters. Each Stockholder severally and not jointly further agrees
to use its "reasonable efforts" as a stockholder to cause the Company to comply
with the obligations of the Company set forth in Section 7.8 of the Merger
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Agreement.
(b) Except pursuant to the terms of this Agreement, each Stockholder
agrees severally and not jointly that such Stockholder will not, without the
prior written consent of Acquiror or Merger Sub, directly or indirectly, grant
any proxies or enter into any voting trust or other agreement or arrangement
with respect to the voting of any Capital Stock or any options, warrants or
other rights to acquire stock of the Company. Each Stockholder agrees to notify
Acquiror or Merger Sub promptly, and to provide all details requested by
Acquiror or Merger Sub, if such Stockholder shall be approached or solicited,
directly or indirectly, by any Person with respect to any of the foregoing.
SECTION 5. SPECIFIC PERFORMANCE
Each Stockholder acknowledges and agrees that there would be no
adequate remedy at law for Acquiror or Merger Sub if such Stockholder fails to
perform any of such Stockholder's obligations hereunder, and accordingly agrees
that Acquiror and Merger Sub, in addition to any other remedy to which they may
be entitled at law or in equity, shall be entitled to compel specific
performance of the obligations of such Stockholder under this Agreement in
accordance with the terms and conditions of this Agreement in any court of the
United States or any State thereof having jurisdiction. Each Stockholder hereby
waives any objection to the imposition of such relief or to the posting of a
bond in connection therewith.
SECTION 6. GOVERNING LAW
This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware, regardless of the laws that might
otherwise govern under applicable principles of conflicts of law.
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SECTION 7. PARTIES IN INTEREST
This Agreement shall inure to the benefit of and shall be binding
upon the parties hereto and their respective heirs, legal representatives and
permitted assigns. If any Stockholder shall at any time hereafter acquire
ownership of, or voting power with respect to, any additional shares of Capital
Stock or any other voting interests in the Company in any manner, whether by the
exercise of any options or any securities or rights convertible into or
exchangeable for shares of Capital Stock or any other voting interests in the
Company, by operation of law or otherwise, such shares or other interests shall
be held subject to all of the terms and provisions of this Agreement. Without
limiting the foregoing, each Stockholder specifically agrees that the
obligations of such Stockholder hereunder shall not be terminated by operation
of law, whether by death or incapacity of such Stockholder or otherwise.
SECTION 8. AMENDMENT
This Agreement shall not be amended, altered or modified except by an
instrument in writing duly executed and delivered on behalf of each of the
parties hereto.
SECTION 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. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible to the fullest extent permitted by
applicable law in a mutually acceptable manner in order that the terms of this
Agreement remain as originally contemplated to the fullest extent possible.
SECTION 10. WAIVER
Except as provided in this Agreement, no action taken pursuant to
this Agreement, including without limitation any investigation by or on behalf
of any party, shall be deemed to constitute a waiver by the party taking such
action of compliance with any representations, warranties, covenants or
agreements contained in this Agreement. The waiver by any party hereto of a
breach of any provision hereunder shall not operate or be construed as a wavier
of any prior or subsequent breach of the same or any other provision hereunder.
SECTION 11. NOTICES
All notices and other communications given or made pursuant hereto
shall be in writing and shall be deemed to have been duly given or made as of
the date delivered, mailed or transmitted, and shall be effective upon receipt,
if delivered personally, mailed by registered or certified mail (postage
prepaid, return receipt requested) to the parties at the following addresses (or
at such other address for a party as shall be specified by like changes of
address) or sent by electronic transmission to the telecopier number specified
below:
If to a Stockholder:
To such Stockholder's address
or telecopier number as set forth
on Schedule A attached hereto
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with a copy to:
Akin, Gump, Strauss, Xxxxx & Xxxx LLP
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0000 Xxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxx, Esq.
If to Acquiror or Merger Sub:
ANSWERTHINK CONSULTING GROUP, INC.
0000 Xxxxxxxx Xxx Xxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxx X. Xxxxxxxxx
With a copy (which shall not constitute notice) to:
Xxxxx & Xxxxxxx L.L.P.
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Telecopier No.: (000) 000-0000
Attention: X. Xxxxx Xxxx, Esq.
SECTION 12. ENTIRE AGREEMENT; ASSIGNMENT
This Agreement (a) constitutes the entire agreement among the parties
hereto pertaining to the subject matter hereof and supersedes all prior
agreements, understandings, negotiations and discussions, whether oral or
written, of the parties and (b) shall not be assigned by operation of law or
otherwise, except that this Agreement shall be binding upon each Stockholder and
each Stockholder's successors and permitted assigns.
SECTION 13. HEADINGS
Section headings are included solely for convenience and are not
considered to be part of this Agreement and are not intended to be an accurate
description of the contents thereof.
SECTION 14. COUNTERPARTS
This Agreement may be executed and delivered in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed and delivered shall be deemed to be an original but all
of which taken together shall constitute one and the same agreement.
SECTION 15. TERMINATION
This Agreement and all of the parties' rights and obligations
hereunder shall terminate on the earlier to occur of (a) the date on which the
Merger Agreement is validly terminated pursuant to the provisions thereof, or
(b) the Effective Time; as defined in the Merger Agreement, (the "Termination
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Date"); provided, however, that in the event the Company becomes obligated to
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pay a Termination Fee to Acquiror pursuant to Section 9.5(b)(i), Section 9.5(b)
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(ii), Section 9.5(b)(iii), or Section 9.5(b)(iv) of the Merger Agreement, the
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Termination Date hereunder shall mean the date on which such Termination Fee is
received by Acquiror.
SECTION 16. OFFICERS AND DIRECTORS; AFFILIATE AGREEMENTS
(a) Notwithstanding anything else herein to the contrary but subject
to the proviso set forth in this Section 16(a), (i) nothing set forth herein
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shall be deemed to restrict or otherwise prohibit a Stockholder who is an
officer or director of the Company from exercising, in such individual's
capacity as an officer or director of the Company, what such Stockholder
believes in good faith to be his or her
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fiduciary duties as an officer or director of the Company to
the stockholders of the Company, and (ii) and no action or inaction required
hereby shall require a Stockholder who is an officer or director of the Company
to take any action or refrain from taking any action, in such individual's
capacity as an officer or director of the Company, that such Stockholder
believes in good faith is required by or would be a breach of his or her
fiduciary duties as an officer or director of the Company to the stockholders of
the Company; provided, however, that, notwithstanding the foregoing, with
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respect to any matter set forth in Section 7.8 of the Merger Agreement, each
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Stockholder who is an officer or director of the Company shall exercise his or
her fiduciary duties to the stockholders of the company pursuant to and in
accordance with the provisions of Section 7.8 of the Merger Agreement.
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(b) Each Stockholder who also executes and enters into an Affiliate
Agreement hereby agrees and acknowledges that, notwithstanding any other
provisions of this Agreement and in addition to any obligations of such
Stockholder hereunder, such Stockholder is and will be subject to all of the
terms and provisions of such Affiliate Agreement and the obligations of such
Stockholder contained in such Affiliate Agreement are and will be independent,
separate and apart from the obligations of such Stockholder hereunder.
[The remainder of this page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Company Voting Agreement, or have caused this Company Voting
Agreement to be executed and delivered on their behalf, as of the date first
above written.
ANSWERTHINK CONSULTING GROUP, INC.
By: /s/ Xxx X. Xxxxxxxxx
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Name: Xxx X. Xxxxxxxxx
Title: Chairman of the Board, President
and Chief Executive Officer
DARWIN ACQUISITION CORP.
By: /s/ Xxx X. Xxxxxxxxx
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Name: Xxx X. Xxxxxxxxx
Title: Chairperson of the Board
and President
STOCKHOLDERS
By:/s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Address: 00 Xxxx 00xx Xxxxxx
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Xxx Xxxx, Xxx Xxxx 00000
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By:/s/ Xxxxxxx Xxxx
-------------------------------------------
Name: Xxxxxxx Xxxx
Address: 00 Xxxx 00xx Xxxxxx
--------------------------------------
Xxx Xxxx, Xxx Xxxx 00000
--------------------------------------
By:/s/ Xxxx Xxxxx
-------------------------------------------
Name: Xxxx Xxxxx
Address: 00 Xxxx Xxxx
--------------------------------------
Xxxxxx, Xxx Xxxxxx 00000
--------------------------------------
By: /s/ Xxxxxx Xxxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxxx
Address: 00 Xxxx 00xx Xxxxxx
--------------------------------------
Xxx Xxxx, Xxx Xxxx 00000
--------------------------------------
By:/s/ Xxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxxx
Address: 000 X. 00xx Xxxxxx, 915
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Xxx Xxxx, Xxx Xxxx 00000
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By:/s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Address: 800 Sunset
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Xxx Xxxxxxx, XX 00000
--------------------------------------
By:/s/ Xxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxxx
Address: 000 Xxxxxxx Xxxx
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Xxx Xxxxxxx, XX 00000
--------------------------------------
By:/s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
Address: 00 Xxxxxx Xxxx
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Xxxxxxxxxx, XX 00000
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By:/s/ Xxxxx Xxxxxx, Secretary
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Name: Ominicom Group, Inc.
Address: 000 Xxxxxxx Xxxxxx
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Xxx Xxxx, Xxx Xxxx 00000
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By:/s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Address: 000 Xxxxx Xxxxxx
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Xxx Xxxxxxxxx, XX 00000
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By:/s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Address: 000 Xxxxxxx Xxxxxx
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Xxx Xxxx, Xxx Xxxx 00000
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SCHEDULE A
Stockholder Name Common Stock Common Stock Percentage of Outstanding
Address and Tele. No. Owned of Record Owned Beneficially*/ Shares Beneficially Owned
--------------------- --------------- -------------------- -------------------------
Xxxxxx Xxxxx 421,433 486,433(1) 4.82%
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000-000-0000
Xxxxxxx Xxxx - 0- 20,000(2) .20%
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000-000-0000
Xxxx Xxxxx 37,890 97,890(3) .97%
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000-000-0000
Xxxxxx Xxxxxxx 1,000 140,583(4) 1.39%
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000-000-0000
Xxxxx Xxxxxxx 49,623 65,039(5) .64%
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000-000-0000
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(1) Includes 60,000 shares of Common Stock issuable upon the exercise of options
that are Presently Exercisable or that become exercisable within 60 days of June
22, 1999 ("Presently Exercisable"). Also included are 5,000 shares owned by the
Xxxxxx Xxxxx Charitable Foundation. Does not include 40,000 shares of Common
Stock issuable upon the exercise of options that are not Presently Exercisable.
Shares owned of record are held in a margin account.
(2)Includes 20,000 shares of Common Stock, issuable upon the exercise of options
that are Presently Exercisable.
(3)Includes 60,000 shares of Common Stock, issuable upon the exercise of options
that are Presently Exercisable. Does not include 40,000 shares of Common Stock,
issuable upon the exercise of options that are not Presently Exercisable
(4)Includes 139,583 shares of Common Stock, issuable upon the exercise of
options that are Presently Exercisable. Does not include 18,750 shares of Common
Stock, issuable upon the exercise of options that are not Presently Exercisable.
(5)Includes 6,250 shares of Common Stock, issuable upon the exercise of options
that are Presently Exercisable and 9,166 shares of Common Stock held in street
name of Xxxxx & Company. Does not include 37,084 shares of Common Stock,
issuable upon the exercise of options that are not Presently Exercisable. Shares
owned of record are held in a margin account.
Stockholder Name Common Stock Common Stock Percentage of Outstanding
Address and Tele. No. Owned of Record Owned Beneficially*/ Shares Beneficially Owned
--------------------- --------------- -------------------- -------------------------
Xxxxx Xxxxxx - 0 - 207,400(6) 2.06%
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000-000-0000
Xxxxx Xxxxxxx - 0 - - 0 - (7) - 0 -
0000 Xxxxx Xxxxx Xxxxx
Xxxxxxxx, XX 00000
000-000-0000
Xxxxxx Xxxxxxxxx 111,951 136,951(8) 1.36%
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000-000-0000
Ominicom Group, Inc. 1,183,333 1,183,33 11.73%
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000-000-0000
Xxx Xxxxx - 0 - - 0 - (9) - 0 -
000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, Xx 00000
000-000-0000
Xxxxx Xxxxxx - 0 - 20,000(10) .20%
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000-000-0000
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(6)Includes 207,400 shares of Common Stock, issuable upon the exercise of
options that are Presently Exercisable. Does not include 125,000 shares of
Common Stock, issuable upon the exercise of options that are not Presently
Exercisable.
(7)Does not include 20,000 shares of Common Stock, issuable upon the exercise of
options that are not Presently Exercisable.
(8)Includes 25,000 shares of Common Stock, issuable upon the exercise of options
that are Presently Exercisable. Does not include 75,000 shares of Common Stock,
issuable upon the exercise of options not Presently Exercisable, which such
shares will immediately vest upon a change in control.
(9)Does not include 20,000 shares of Common Stock, issuable upon the exercise of
options that are not Presently Exercisable.
(10)Includes 20,000 shares of Common Stock, issuable upon the exercise of
options that are Presently Exercisable.
SCHEDULE 3(d)
ENCUMBRANCES
Stockholder Name Common Stock Subject to Encumbrances
---------------- ------------------------------------
Xxxxxx Xxxxx See note (1) to table in Schedule A.
Xxxxxxx Xxxx None
Xxxx Xxxxx None
Xxxxxx Xxxxxxx None
Xxxxx Xxxxxxx See note (5) to table in Schedule A.
Xxxxx Xxxxxx None
Xxxxx Xxxxxxx None
Xxxxxx Xxxxxxxxx None
Ominicom Group, Inc. None
Xxx Xxxxx None
Xxxxx Xxxxxx None
EXHIBIT A
FORM OF IRREVOCABLE PROXY
The undersigned Stockholders of THINK NEW IDEAS, INC., a Delaware
corporation (the "Company"), hereby irrevocably (to the fullest extent permitted
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by law) appoints and constitutes ANSWERTHINK CONSULTING GROUP, INC., a Florida
corporation ("Acquiror"), the attorneys and proxies of the undersigned, with
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full power of substitution and resubstitution, to the full extent of the
undersigned's voting rights with respect to (a) the outstanding shares of common
stock, par value $.0001 per share, of the Company (the "Company Common Stock")
--------------------
or any other capital stock of the Company (collectively with the Company Common
Stock, the "Capital Stock") owned of record by the undersigned as of the date of
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this proxy, which shares are specified on the final page of this proxy, and (b)
any and all other shares of Capital Stock of the Company which the undersigned
may acquire on or after the date hereof, provided that this proxy automatically
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shall be revoked with respect to any shares of Capital Stock that are sold,
transferred or otherwise disposed of by the undersigned ("Transferred Stock")
-----------------
effective as of the date of such sale, transfer or other disposition ("Date of
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Disposition"). Upon the execution hereof, all prior proxies given by the
-----------
undersigned with respect to any of the Capital Stock are hereby revoked, and the
undersigned agrees that no subsequent proxy will be given with respect to the
voting of any of the Capital Stock (other than Transferred Stock after the Date
of Disposition given by the purchaser, transferee or other beneficiary of such
other disposition with respect to such stock) except to the extent that such
proxies do not prevent the voting of this proxy in favor of the transactions
described herein.
This proxy is irrevocable (except as and to the extent provided in the
immediately preceding paragraph), is coupled with an interest, is granted in
connection with the execution and delivery of the Company Voting Agreement,
dated as of the date hereof, among Acquiror and the undersigned (the "Company
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Voting Agreement") and is granted in consideration of Acquiror entering into the
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Agreement and Plan of Merger, dated as of the date hereof, among Acquiror,
DARWIN ACQUISITION CORP., a Delaware corporation (the "Merger Sub") and the
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Company (the "Merger Agreement").
----------------
The proxy named above (and its successors) will, prior to the Termination
Date (as hereinafter defined), be empowered, and may exercise this proxy, to
vote the Capital Stock at any meeting of the Stockholders of the Company,
however called, or in connection with any solicitation of written consents from
Stockholders of the Company, called or solicited, as the case may be, for the
purpose of voting on the Merger Agreement and the transactions contemplated
thereby in favor of the approval and adoption of the Merger Agreement and the
approval of the merger contemplated thereby, and in favor of each of the other
actions contemplated by the Merger Agreement. The undersigned may vote the
Capital Stock on all other matters.
This proxy shall be binding upon the representatives, successors and
permitted assigns of the undersigned.
If any provision of this proxy or any part of any such provision is held
under any circumstances to be invalid or unenforceable in any jurisdiction, then
(a) such provision or part thereof shall, with respect to such circumstances and
in such jurisdiction, be deemed amended to conform to applicable laws so as to
be valid and enforceable to the fullest possible extent, (b) the invalidity or
unenforceability of such provision or part thereof under such circumstances and
in such jurisdiction shall not affect the validity or enforceability of such
provision or part thereof under any other circumstances or in any other
jurisdiction, and (c) the invalidity or unenforceability of such provision or
part thereof shall not affect the validity or enforceability of the remainder of
such provision or the validity or enforceability of any other provision of this
proxy. Each provision of this proxy is separable from every other provision of
this proxy, and each part of each provision of this proxy is separable from
every other part of such provision.
This proxy and the rights contained herein shall terminate upon the
termination of the Company Voting Agreement as provided therein (the
"Termination Date").
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Date: June 24, 1999
_________________________________________
Stockholder's Name
Number of shares of common stock of the Company
owned of record as of the date of this proxy:
_________________________________________
