STOCKHOLDERS SUPPORT AGREEMENT
STOCKHOLDERS
SUPPORT AGREEMENT
STOCKHOLDERS
SUPPORT AGREEMENT, dated as of September __, 2006 (this “Agreement”) by and
among between TUMBLER MERGER CORP., a Delaware corporation (“Offeror”) and each
of the stockholders whose names appear on the signature pages of this Agreement
(each a “Major Stockholder” and, collectively, the “Major Stockholders”).
WHEREAS,
as of the date hereof, each Major Stockholder represents and warrants to Offeror
that such Major Stockholder owns of record and beneficially and has good, valid
and marketable title to, free and clear of any Lien, proxy, voting restriction,
limitation on disposition, adverse claim of ownership or use or encumbrance
of
any kind, other than pursuant to this Agreement, and has the sole power to
vote
and full right, power and authority to sell, transfer and deliver, the number
of
shares of common stock, par value $0.01 per share (“Company Common Stock”), of
BIOLOK
INTERNATIONAL INC.,
a
Delaware corporation (the “Company”), as set forth opposite such Major
Stockholder’s name on Exhibit
A
hereto
(all such shares of Company Common Stock and any shares of Company Common Stock
of which ownership of record or the power to vote is hereafter acquired by
the
Stockholders prior to the termination of this Agreement, including shares of
Company Common Stock issuable upon the exercise of options to purchase Company
Common Stock, being referred to herein as the “Shares”); and
WHEREAS,
Offeror, Tumbler Holdings, Inc. and the Company propose to enter into,
simultaneously herewith, an Agreement and Plan of Merger (the “Merger
Agreement”; capitalized terms used but not defined in this Agreement shall have
the respective meanings ascribed to them in the Merger Agreement), a draft
of
which has been made available to each Major Stockholder, which provides, upon
the terms and subject to the conditions thereof, for the merger of Offeror
with
and into the Company (the “Merger”);
NOW,
THEREFORE, in consideration of the foregoing and of the mutual covenants and
agreements contained herein and in the Merger Agreement, and intending to be
legally bound hereby, the Stockholders hereby agree as follows:
1. Tender
of Shares.
Promptly following the commencement of the Offer, each Major Stockholder hereby
agrees that such Major Stockholder (a) shall tender, or cause to be tendered,
to
the Offeror in the Offer, as promptly as practicable, but in any event within
five business days of such commencement, all of such Major Stockholder’s Shares
pursuant to the terms of the Offer, and (b) shall not withdraw, or cause to
be
withdrawn, the tender of such Shares.
2. Grant
of Proxy.
Each
Major Stockholder, by this Agreement, with respect to such Major Stockholder’s
Shares, hereby grants an irrevocable proxy to Offeror (and agrees to execute
such documents or certificates evidencing such proxy as Offeror may reasonably
request) to vote, at any meeting of the stockholders of the Company, and in
any
action by written consent of the stockholders of the Company, all of such Major
Stockholder’s Shares (a) in favor of the approval and adoption of the Merger
Agreement and approval of the Merger and all other transactions contemplated
by
the Merger Agreement and this Agreement, (b) against any action, agreement
or
transaction (other than the Merger Agreement or the transactions contemplated
thereby) or proposal (including any Competing Proposal) that would result in
a
breach of any covenant, representation or warranty or any other obligation
or
agreement of the Company under the Merger Agreement or that could result in
any
of the conditions to the Company’s obligations under the Merger Agreement not
being fulfilled, and (c) in favor of any other matter necessary to the
consummation of the transactions contemplated by the Merger Agreement and
considered and voted upon by the stockholders of the Company. Each Major
Stockholder further agrees to cause such Major Stockholder’s Shares to be voted
in accordance with the foregoing. THIS PROXY IS IRREVOCABLE AND COUPLED WITH
AN
INTEREST. Each Major Stockholder acknowledges receipt and review of a copy
of
the Merger Agreement.
3. Transfer
of Shares.
Each
Major Stockholder agrees that such Major Stockholder shall not, directly or
indirectly, (a) sell, assign, transfer (including by operation of law), Lien,
pledge, dispose of or otherwise encumber any of the Shares or otherwise agree
to
do any of the foregoing, (b) deposit any Shares into a voting trust or enter
into a voting agreement or arrangement or grant any proxy or power of attorney
with respect thereto that is inconsistent with this Agreement, (c) enter into
any contract, option or other arrangement or undertaking with respect to the
direct or indirect acquisition or sale, assignment, transfer (including by
operation of law) or other disposition of any Shares, or (d) take any action
that would make any representation or warranty of such Major Stockholder herein
untrue or incorrect in any material respect or have the effect of preventing
or
disabling the Major Stockholder from performing such Major Stockholder’s
obligations hereunder.
4. Representations
and Warranties of the Stockholders.
Each
Major Stockholder hereby severally, but not jointly, represents and warrants
to
Offeror as follows:
4.1 If
such
Major Stockholder is a corporation or other legal entity, such Major Stockholder
is duly organized, validly existing and in good standing under the laws of
the
jurisdiction of its formation. Such Major Stockholder has all necessary power
and authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement by such Major Stockholder and the consummation
by
such Major Stockholder of the transactions contemplated hereby have been duly
and validly authorized by all necessary action, and no other proceedings on
the
part of such Major Stockholder are necessary to authorize this Agreement or
to
consummate the transactions contemplated hereby. This Agreement has been duly
executed and delivered by such Major Stockholder and, assuming the due
authorization, execution and delivery by Offeror and that this Agreement
constitutes legal, valid and binding obligation of Offeror, constitutes the
legal, valid and binding obligation of such Major Stockholder, enforceable
against such Major Stockholder in accordance with its terms, except to the
extent that enforcement may be limited by applicable bankruptcy, reorganization,
insolvency, moratorium, or other laws affecting the enforcement of creditor’s
rights generally and by general principles of equity, regardless of whether
such
enforceability is considered in a proceeding in equity or at law.
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4.2 The
execution and delivery of this Agreement by such Major Stockholder do not,
and
the performance of this Agreement by such Major Stockholder will not, (i) if
such Major Stockholder is a corporation or other legal entity, conflict with
or
violate the Certificate of Incorporation or Bylaws or equivalent organizational
documents of such Major Stockholder or (ii) result in any breach of or
constitute a default (or an event which, with notice or lapse of time or both,
would become a default) under, or give to others any right of termination,
amendment, acceleration or cancellation of, or result in the creation of a
Lien
or other encumbrance on any property or asset of such Major Stockholder pursuant
to, any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation.
4.3 The
execution and delivery of this Agreement by such Major Stockholder do not,
and
the performance of this Agreement by such Major Stockholder will not, require
any consent, approval, authorization or permit of, or filing with or
notification to, any Governmental Authority, except for applicable requirements,
if any, of the Exchange Act.
4.4 With
respect to any Major Stockholder who is a natural person, the failure of the
spouse, if any, of such Major Stockholder to be a party or signatory to this
Agreement shall not (i) prevent such Major Stockholder from performing such
Major Stockholder’s obligations and consummating the transactions contemplated
hereunder, or (ii) prevent this Agreement from constituting the legal, valid
and
binding obligation of such Major Stockholder in accordance with its
terms.
5. No
Solicitation of Transactions.
None of
the Stockholders shall, directly or indirectly, through any officer, director,
agent or otherwise, (a) solicit, initiate or knowingly encourage the submission
of, any Competing Proposal, or (b) participate in any discussions or
negotiations regarding, or furnish to any person, any non-public information
with respect to, or otherwise cooperate in any way with respect to, or assist
or
participate in, facilitate or encourage, any unsolicited proposal that
constitutes, or may reasonably be expected to lead to, a Competing Proposal;
provided, however, that nothing in this Section 5
shall
prevent the Major Stockholder, in such Major Stockholder’s capacity as a
director or executive officer of the Company from engaging in any activity
permitted pursuant to Section 5.2 of the Merger Agreement. Each Major
Stockholder shall, and shall direct or cause such Major Stockholder’s
representatives and agents to, immediately cease and cause to be terminated
any
discussions or negotiations with any parties that may be ongoing with respect
to
any Competing Proposal.
6. Information
for Offer Documents and Proxy Statement; Disclosure.
Each
Major Stockholder represents and warrants to Offeror that none of the
information relating to such Major Stockholder and such Major Stockholder’s
affiliates provided in writing by or on behalf of such Major Stockholder or
such
Major Stockholder’s affiliates for inclusion in the Schedule TO, Schedule 14D-9,
Offer Documents, or Proxy Statement will, at the respective times the Schedule
TO, Schedule 14D-9, Offer Documents, or Proxy Statement are filed with the
SEC
or are first published, sent or given to the stockholders of the Company,
contain any untrue statement of material fact or omit to state any material
fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Each Major Stockholder authorizes and agrees to permit Offeror
to
publish and disclose in the Offer Documents and the Proxy Statement and related
filings under the securities laws such Major Stockholder’s identity and
ownership of Shares and the nature of such Major Stockholder’s commitments,
arrangements and understandings under this Agreement and any other information
required by applicable Law.
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7. Directors
and Officers.
Notwithstanding any provision of this Agreement to the contrary, nothing in
this
Agreement shall (or require any Major Stockholder to attempt to) limit or
restrict any designee of a Major Stockholder who is a director or officer of
the
Company from acting in such capacity or voting in such person’s sole discretion
on any matter (it being understood that this Agreement shall apply to each
Major
Stockholder solely in such Major Stockholder’s capacity as a stockholder of the
Company).
8. No
Ownership Interest.
Nothing
contained in this Agreement shall be deemed to vest in Offeror any direct or
indirect ownership or incidence of ownership of or with respect to any Shares.
All rights, ownership and economic benefits of and relating to the Shares shall
remain vested in and belong to the Major Stockholders, and Offeror shall have
no
authority to manage, direct, superintend, restrict, regulate, govern, or
administer any of the policies or operations of the Company or exercise any
power or authority to direct any Major Stockholder in the voting of any of
the
Shares, except as otherwise provided herein.
9. Termination.
This
Agreement shall terminate and shall have no further force or effect as of the
earliest to occur of (i) such date and time as the Merger Agreement shall have
been terminated pursuant to Article VIII thereof, (ii) such date and time as
the
Merger shall become effective in accordance with the terms and provisions of
the
Merger Agreement, or (iii) such date and time as any amendment or change to
the
Merger Agreement is effected without the Major Stockholder’s consent that (A)
decreases the Per Share Amount or (B) materially and adversely affects the
Major
Stockholder.
10. Miscellaneous.
Except
as otherwise provided herein, all costs and expenses incurred in connection
with
this Agreement and the transactions contemplated hereby shall be paid by the
party incurring such costs and expenses, whether or not the transactions
contemplated hereby are consummated; all notices, requests, claims, demands
and
other communications hereunder shall be in writing and shall be given (and
shall
be deemed to have been duly given upon receipt) by delivery in person, by
overnight courier, by facsimile or by registered or certified mail (postage
prepaid, return receipt requested) to the respective parties at their addresses
as specified on the signature pages of this Agreement; if any term or other
provision of this Agreement is invalid, illegal or incapable of being enforced
by any rule of law or public policy, all other conditions and provisions of
this
Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party; this Agreement
constitutes the entire agreement among the parties with respect to the subject
matter hereof and supersede all prior agreements and undertakings, both written
and oral, among the parties, or any of them, with respect to the subject matter
hereof; this Agreement shall not be assigned (whether pursuant to a merger,
by
operation of law or otherwise), except that Offeror may assign all or any of
its
rights and obligations hereunder to any affiliate of Offeror, provided, however,
that no such assignment shall relieve the assigning party of its obligations
hereunder if such assignee does not perform such obligations; this Agreement
shall be binding upon and inure solely to the benefit of each party hereto,
and
nothing in this Agreement, express or implied, is intended to or shall confer
upon any other person any right, benefit or remedy of any nature whatsoever
under or by reason of this Agreement; the parties hereto agree that irreparable
damage would occur in the event any provision of this Agreement was not
performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity; this Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware applicable to contracts
executed in and to be performed in that State; this Agreement may be executed
and delivered (including by facsimile transmission) in one or more counterparts,
and by the different parties hereto in separate counterparts, each of which
when
executed shall be deemed to be an original but all of which taken together
shall
constitute one and the same agreement; from time to time, at the request of
Offeror, in the case of any Major Stockholder, or at the request of the Major
Stockholders, in the case of Offeror, and without further consideration, each
party shall execute and deliver or cause to be executed and delivered such
additional documents and instruments and take all such further action as may
be
reasonably necessary or desirable to consummate the transactions contemplated
by
this Agreement; EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH
RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
TUMBLER
MERGER CORP.
By___________________________________
Xxxxxxxx
Xxxxxxxxx III, President
Major
Stockholder
_________________________
Printed
name and title (if applicable):
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