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EXHIBIT 2.2
IRREVOCABLE PROXY
IRREVOCABLE PROXY, dated as of February ___, 1997 by and between
ANDATACO, a California corporation ("Andataco"), and __________________ (the
"Shareholder").
WHEREAS, concurrently with the execution and delivery of this
Agreement, Andataco, a California corporation, W. Xxxxx Xxxxx, the principal
shareholder of Andataco ("Xxxxx"), IPL Systems, Inc., a Massachusetts
corporation ("Parent"), IPL Acquisition Sub, Inc., a Delaware corporation and
wholly owned subsidiary of Parent ("Merger Sub") are entering into an Agreement
and Plan of Merger and Reorganization (the "Agreement"), providing, among other
things, for the merger (the "Merger") of Merger Sub with and into Andataco; and
WHEREAS, as of the date hereof, the Shareholder is beneficial owner of
that number of shares of the Class A Common Stock, $.01 par value, of Parent
(collectively the "Shares") set forth on the signature page hereof; and
WHEREAS, as a condition to its willingness to enter into the Agreement,
Andataco has requested that the Shareholder agree, and the Shareholder has
agreed, to grant Andataco an irrevocable proxy (the "Proxy") with respect to
the Shares, upon the terms and subject to the conditions hereof;
NOW, THEREFORE, to induce Andataco to enter into the Agreement and in
consideration of the foregoing and the mutual representations, warranties,
covenants and agreements set forth herein and in the Agreement, the parties
hereto agree as follows:
1. The Shareholder hereby constitutes and appoints Andataco,
during the term of this Irrevocable Proxy, as the Shareholder's true and lawful
proxy and attorney-in-fact, with full power of substitution, to vote all of the
Shares plus any additional shares which Shareholder may own or hold as of the
date of any such vote (and any all securities issued or issuable in respect
thereof) which Shareholder is entitled to vote (collectively, the "Proxy
Shares"), for and in the name, place and stead of the Shareholder, at any
annual, special or other meeting of the shareholders of Parent, and at any
adjournment or postponement thereof, or pursuant to any consent in lieu of a
meeting or otherwise, in favor of any proposal to approve and adopt the
Agreement, the Merger and any transactions contemplated thereby and, in
addition, to vote against (but not in favor of) any other proposal for any
merger, consolidation, sale or purchase of any assets, reorganization,
recapitalization, liquidation or winding up of or by Parent. All power and
authority hereby conferred is coupled with an interest and is irrevocable. In
the event that Andataco is unable to exercise such power and authority for any
reason, the Shareholder
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agrees that the Shareholder will vote all the Proxy Shares in favor of approval
and adoption of the Agreement, the Merger and the transactions contemplated
thereby, at any such meeting or adjournment or postponement, thereof, or
provide Shareholder's written consent thereto.
2. The Shareholder hereby covenants and agrees that until this
Irrevocable Proxy is terminated in accordance with the terms of Section 6
hereof, the Shareholder will not, and will not agree to, directly or
indirectly, sell, transfer, assign, pledge, hypothecate, grant a security
interest with respect to, cause to be redeemed or otherwise dispose of any of
the Proxy Shares or grant or attempt to grant any proxy or interest in, or with
respect to, such Proxy Shares or deposit such Proxy Shares into a voting trust
or enter into a voting agreement or arrangement with respect to such Proxy
Shares; provided, however, that if the Shareholder is an employee of Parent and
his or her employment is terminated during the effectiveness of this
Irrevocable Proxy, such Shareholder may, subsequent to the record date for the
Parent Shareholders' Meeting, sell or otherwise dispose of any shares received
upon exercise of options which would terminate if not exercised prior to the
termination of this Irrevocable Proxy. The Shareholder further covenants and
agrees that until this Proxy is terminated in accordance with the terms of
Section 6 hereof, the Shareholder will not directly or indirectly solicit,
initiate, encourage or induce the making, submission or announcement of an
offer or proposal from, or furnish any information to, any prospective buyer,
commence or engage in any negotiations with any other party or enter into any
agreement with any other party concerning an Acquisition Proposal (as defined
in the Agreement).
3. This Irrevocable Proxy is intended solely to apply to the
exercise by Shareholder, in his individual capacity, of rights attaching to
ownership of the Proxy Shares, and nothing herein shall be deemed to apply to,
or to limit in any manner, the discretion of Shareholder with respect to any
action which may be taken or omitted by him acting in his fiduciary capacity as
a director or officer of Parent.
4. The Shareholder represents and warrants to Andataco that (a)
the Shares constitute all of the securities of Parent owned beneficially by the
Shareholder on the date hereof, (b) the Shareholder owns the Shares free and
clear of all liens, charges, claims, encumbrances and security interests of any
nature whatsoever, (c) except as provided herein, the Shareholder has not
granted any proxy with respect to the Shares, deposited such Shares into a
voting trust or entered into any voting agreement or other arrangement with
respect to such Shares, (d) Shareholder has full right, power, and authority to
enter into and perform this Irrevocable Proxy, and (e) nothing in this
Irrevocable Proxy will violate the terms of any other agreement affecting the
Proxy Shares.
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5. This Irrevocable Proxy shall be governed by and construed in
accordance with the laws of the State of Massachusetts without giving effect to
the provisions thereof relating to conflicts of law.
6. This Irrevocable Proxy shall terminate at the earlier of (i)
the closing of the transactions contemplated by the Agreement, or (ii) the
termination of the Agreement in accordance with its .terms, or (iii) upon
notice of termination given by Andataco to the Shareholder.
7. This Irrevocable Proxy is granted in consideration of the
execution and delivery of the Agreement by Andataco and Xxxxx. The Shareholder
represents and agrees that such Irrevocable Proxy is coupled with an interest
sufficient in law to support an irrevocable power and shall not be terminated
by any act of the Shareholder, by death or disability of the Shareholder, by
lack of appropriate power or authority or by the occurrence of any other event
or events other than as provided in Section 6 hereof.
8. The parties acknowledge and agree that performance of their
respective obligations hereunder will confer a unique benefit on the other and
that a failure of performance will not be compensable by money damages. The
parties therefore agree that this Irrevocable Proxy shall be specifically
enforceable and that specific enforcement and injunctive relief shall be
available to Andataco and the Shareholder for any breach of any agreement,
covenant or representation hereunder. This Irrevocable Proxy shall revoke all
prior proxies given by the Shareholder at any time with respect to the Proxy
Shares.
9. The Shareholder will, upon request, execute and deliver any
additional documents and take such actions as may reasonably be deemed by
Andataco to be necessary or desirable to complete the Irrevocable Proxy granted
herein or to carry out the provisions hereof.
10. If any term, provision, covenant, or restriction of this
Irrevocable Proxy is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Irrevocable Proxy shall remain in full force and effect
and shall not in any way be affected, impaired or invalidated.
11. This Proxy may be executed in one or more counterparts, each
of which shall be deemed to be an original but all of which together shall
constitute one and the same document.
12. All notices under this Proxy shall be in writing and may be
given by personal delivery, telecopier, overnight express mail, or by
registered mail. Notice by personal delivery shall be deemed given upon actual
receipt. Notice by telecopier or
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overnight express mail shall be deemed given on the date of actual receipt.
Notice given by registered mail shall be deemed given on the third business day
following the date when the notice material is deposited in the United States
Mail, return receipt requested, addressed to Shareholder at his address shown
below.
13. This Irrevocable Proxy constitutes the entire agreement
between Shareholder and Andataco with respect to the subject matter hereof.
All prior oral or written understandings and agreements regarding the subject
matter hereof between them are merged herein and are extinguished hereby.
14. This Irrevocable Proxy may not be amended except by a writing
executed by both Shareholder and Andataco.
15. This Irrevocable Proxy and the rights of Andataco under this
Irrevocable Proxy may not be assigned, except that Andataco may act pursuant to
this Irrevocable Proxy, in voting the Proxy Shares or otherwise, through any
officer, employee or designated agent of Andataco. This Irrevocable Proxy
shall be binding upon and inure to the benefit of Shareholder and Andataco and
their respective heirs, devises, legatees, personal representatives, agents and
permitted assigns.
IN WITNESS WHEREOF, Andataco and the Shareholder have caused this
Irrevocable Proxy to be duly executed on the date first above written.
SHAREHOLDER
________________________
Print Name:
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Address:
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Telecopy No.
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Number of Shares of Class A Common
Stock of Parent beneficially owned by
Shareholder: ____________________
ANDATACO,
a California corporation
By:
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Name:
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Title:
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