1
EXHIBIT 5.2
VOTING AGREEMENT
This VOTING AGREEMENT ("Agreement") is entered into as of September 13,
2001, by and between [GIZA] INC., a Delaware corporation ("Parent"), and _______
__________________ ("Stockholder").
RECITALS
A. Stockholder is a holder of record and the "beneficial owner" (within
the meaning of Rule [13d-3 under the Securities Exchange Act of 1934) of certain
shares of common stock of [Aswan], Inc., a Delaware corporation (the "Company").
B. Parent, Aswan Acquisition Corp., a Delaware corporation ("Merger
Sub"), and the Company are entering into an Agreement and Plan of Merger and
Reorganization, of even date herewith (the "Reorganization Agreement"), which
provides (subject to the conditions set forth therein) for the merger of Merger
Sub into the Company (the "Merger").
C. In the Merger, the outstanding shares of common stock of the Company
are to be converted into the right to receive cash and shares of common stock of
Parent.
D. In order to induce Parent to enter into the Reorganization
Agreement, Stockholder is entering into this Agreement. Even though Stockholder
may be a director or officer of the Company, Stockholder is executing this
Agreement solely in Stockholder's individual capacity and not in capacity as a
director or officer of the Company.
AGREEMENT
The parties to this Agreement, intending to be legally bound, agree as
follows:
SECTION 1. CERTAIN DEFINITIONS
For purposes of this Agreement:
(a) The terms "ACQUISITION PROPOSAL" and "ACQUISITION TRANSACTION"
shall have the respective meanings assigned to those terms in the
Reorganization Agreement.
(b) "COMPANY COMMON STOCK" shall mean the common stock, par value $.001
per share, of the Company.
(c) Stockholder shall be deemed to "OWN" or to have acquired
"OWNERSHIP" of a security if Stockholder: (i) is the record owner of such
security; or (ii) is the "beneficial owner" (Within the meaning of Rule
13d-3 under the Securities Exchange Act of 1934) of such security.
1
2
(d) "PERSON" shall mean any: (i) individual; (ii) corporation, limited
liability company, partnership or other entity; or (iii) governmental
authority.
(e) "SUBJECT SECURITIES" shall mean: (i) all securities of the Company
(including all shares of Company Common Stock (whether or not subject to
repurchase rights) and all options, warrants and other rights to acquire
shares of Company Common Stock) Owned by Stockholder as of the date of this
Agreement; and (ii) all additional securities of the Company (including all
additional shares of Company Common Stock (whether or not subject to
repurchase rights) and all additional options, warrants and other rights to
acquire shares of Company Common Stock) of which Stockholder acquires
Ownership during the period from the date of this Agreement through the
Voting Covenant Expiration Date.
(f) A Person shall be deemed to have effected a "Transfer" of a
security if such Person directly or indirectly: (i) sells, pledges,
encumbers, grants an option with respect to, transfers or disposes of such
security or any interest in such security to any Person other than Parent;
(ii) enters into an agreement or commitment contemplating the possible sale
of, pledge of, encumbrance of, grant of an option with respect to, transfer
of or disposition of such security or any interest therein to any Person
other than Parent; or (iii) reduces such Person's beneficial ownership (or
risks of ownership) of such security.
(g) "VOTING COVENANT EXPIRATION DATE" shall mean the earlier of the
date upon which the Reorganization Agreement is validly terminated, or the
date upon which the Merger is consummated,
SECTION 2. TRANSFER OF SUBJECT SECURITIES AND VOTING RIGHTS
2.1 RESTRICTION ON TRANSFER OF SUBJECT SECURITIES. Subject to Section
2.3, during the period from the date of this Agreement through the Voting
Covenant Expiration Date, Stockholder shall not, directly or indirectly, cause
or permit any Transfer of any of the Subject Securities to be effected.
2.2 RESTRICTION ON TRANSFER OF VOTING RIGHTS. During the period from
the date of this Agreement through the Voting Covenant Expiration Date,
Stockholder shall ensure that: (a) none of the Subject Securities is deposited
into a voting trust; and (b) no proxy is granted, and no voting agreement or
similar agreement is entered into, with respect to any of the Subject
Securities.
2.3 PERMITTED TRANSFERS. Section 2.1 shall not prohibit a transfer of
Company Common Stock by Stockholder (i) to any member of Stockholder's immediate
family, or to a trust for the benefit of Stockholder or any member of
Stockholder's immediate family, (ii) upon the death of Stockholder, or (iii) if
Stockholder is a partnership or limited liability company, as a distribution to
the partners or members of Stockholder, provided, however, that a transfer
referred to in clause "(i)", "(ii)" or "(iii)" of this sentence shall be
permitted only if, as a precondition to such transfer, each transferee agrees in
a writing, reasonably satisfactory in form and substance to Parent, to be bound
by the terms of this Agreement.
2
3
SECTION 3. VOTING OF SHARES
3.1 VOTING COVENANT. Stockholder hereby agrees that during the period
from the date of this Agreement through the Voting Covenant Expiration Date, at
any meeting of the stockholders of the Company, however called, and in any
written action by consent of stockholders of the Company, unless otherwise
directed in writing by Parent, Stockholder shall cause the Subject Securities to
be voted:
(a) in favor of the Merger, the execution and delivery by the
Company of the Reorganization Agreement and the adoption and approval
of the Reorganization Agreement and the terms thereof, in favor of each
of the other actions contemplated by the Reorganization Agreement and
in favor of any action in furtherance of any of the foregoing;
(b) against my action or agreement that would or could reasonably
result in a breach of any representation, warranty, covenant or
obligation of the Company in the Reorganization Agreement; and
(c) against the following actions (other than the Merger and the
transactions contemplated by the Reorganization Agreement): (A) any
extraordinary corporate transaction, such as a merger, consolidation or
other business combination involving the Company or any subsidiary of
the Company; (B) any sale, lease or transfer of a material amount of
assets of the Company or any subsidiary of the Company; (C) any
reorganization, recapitalization, dissolution or liquidation of the
Company or any subsidiary of the Company; (D) any change in a majority
of the board of directors of the Company; (E) any amendment to the
Company's certificate of incorporation or bylaws; (F) any material
change in the capitalization of the Company or the Company's corporate
structure; and (G) any other action which is intended, or could
reasonably be expected, to impede, interfere with, delay, postpone,
discourage or adversely affect the Merger or any of the other
transactions contemplated by the Reorganization Agreement or this
Agreement.
Stockholder shall not enter into any agreement or understanding with any Person
prior to the earlier of the date upon which the Reorganization Agreement is
validly terminated or the date upon which the Merger is consummated to vote or
give instructions in any manner inconsistent with clause "(a)", "(b)", or "(c)"
of the preceding sentence.
3.2 PROXY; FURTHER ASSURANCES.
(a) Contemporaneously with the execution of this Agreement: (i)
Stockholder shall deliver to Parent a proxy in the form attached to
this Agreement as Exhibit A, which shall be irrevocable to the fullest
extent permitted by law (at all times prior to the Voting Covenant
Expiration Date) with respect to the shares referred to therein (the
("Proxy"); and (ii) Stockholder shall cause to be delivered to Parent
an additional proxy (in the form attached hereto as Exhibit A)
executed on behalf of the record owner of any outstanding shares of
Company Common Stock that are owned beneficially (within the meaning of
3
4
Rule l3d-3 under the Securities Exchange Act of 1934), but not of
record, by Stockholder.
(b) Stockholder shall, at Stockholder's own expense, perform such
further acts and execute such further proxies and other documents and
instruments as may reasonably be required to vest in Parent the power
to carry out and give effect to the provisions of this Agreement.
3.3 FIDUCIARY DUTIES. This Agreement is intended to bind Stockholder
only with respect to the specific matters set forth herein, and shall not
prohibit Stockholder from acting in Stockholder's capacity as an officer or
director of the Company in the manner required by Stockholder's fiduciary duties
as an officer or director of the Company.
SECTION 4. WAIVER OF APPRAISAL RIGHTS
Stockholder hereby irrevocably and unconditionally waives, and agrees
to cause to be waived and to prevent the exercise of, any rights of appraisal
and any similar rights relating to the Merger or any related transaction that
Stockholder or any other Person may have by virtue of the ownership of any
shares of Company Common Stock Owned by Stockholder.
SECTION 5. NO SOLICITATION
Subject to Section 3.3, Stockholder agrees that, during the period from
the date of this Agreement through the Voting Covenant Expiration Date,
Stockholder shall not, directly or indirectly, and Stockholder shall ensure that
Stockholder's Representatives (as defined in the Reorganization Agreement) do
not, directly or indirectly: (i) solicit, initiate, encourage, induce or
facilitate the making, submission or announcement of any Acquisition Proposal or
take any action that could reasonably be expected to lead to an Acquisition
Proposal; (ii) furnish any information regarding the Company or any subsidiary
of the Company to any Person in connection with or in response to an Acquisition
Proposal or an inquiry or indication of interest that could reasonably be
expected to lead to an Acquisition Proposal; (iii) engage in discussions or
negotiations with any Person with respect to any Acquisition Proposal; (iv)
approve, endorse or recommend any Acquisition Proposal; or (v) enter into any
letter of intent or similar document or any agreement or understanding
contemplating or otherwise relating to any Acquisition Transaction. Stockholder
shall immediately cease and discontinue, and Stockholder shall ensure that
Stockholder's Representatives immediately cease and discontinue, any existing
discussions with any Person that relate to any Acquisition Proposal.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
Stockholder hereby represents and warrants to Parent as follows:
6.1 AUTHORIZATION, ETC. Stockholder has all necessary legal right,
power, authority and capacity to execute and deliver this Agreement and the
Proxy and to perform Stockholder's obligations hereunder and thereunder. This
Agreement and the Proxy have been duly executed and delivered by Stockholder and
constitute legal, valid and binding obligations of Stockholder,
4
5
enforceable against Stockholder in accordance with their terms, subject to (i)
laws of general application relating to bankruptcy, insolvency and the relief of
debtors and (ii) rules of law governing specific performance, injunctive relief
and other equitable remedies. If Stockholder is a general or limited
partnership, then Stockholder is a partnership duly organized, validly existing
and in good standing under the laws of the jurisdiction in which it was
organized. If Stockholder is a limited liability company, then Stockholder is a
limited liability company duly organized, validly existing and in good standing
under the laws of the jurisdiction in which it was organized.
6.2 NO CONFLICTS OR CONSENTS.
(a) The execution and delivery of this Agreement and the Proxy by
Stockholder do not, and the performance of this Agreement and the Proxy by
Stockholder will not: (i) conflict with or violate any law, rule, regulation,
order, decree or judgment applicable to Stockholder or by which he or any of
Stockholder's properties is or may be bound or affected; or (ii) result in or
constitute (with or without notice or lapse of time) any breach of or default
under, or give to any other Person (with or without notice or lapse of time) any
right of termination, amendment, acceleration or cancellation of, or result
(with or without notice or lapse of time) in the creation of any encumbrance or
restriction on any of the Subject Securities pursuant to, any contract to which
Stockholder is a party or by which Stockholder or any of Stockholder's
affiliates or properties is or may be bound or affected.
(b) The execution and delivery of this Agreement and the Proxy by
Stockholder do not, and the performance of this Agreement and the Proxy by
Stockholder will not, require any consent or approval of any Person.
6.3 TITLE TO SECURITIES. As of the date of this Agreement: (a)
Stockholder holds of record (free and clear of any encumbrances or restrictions)
the number of outstanding shares of Company Common Stock set forth under the
heading "Shares Held of Record" on the signature page hereof; (b) Stockholder
holds (free and clear of any encumbrances or restrictions) the options, warrants
and other rights to acquire shares of Company Common Stock set forth under the
heading "Options and Other Rights" on the signature page hereof; (c) Stockholder
Owns the additional securities of the Company set forth under the heading
"Additional Securities Beneficially Owned" on the signature page hereof; and (d)
Stockholder does not directly or indirectly Own any shares of capital stock or
other securities of the Company, or any option, warrant or other right to
acquire (by purchase, conversion or otherwise) any shares of capital stock or
other securities of the Company, other than the shares and options, warrants and
other rights set forth on the signature page hereof.
6.4 ACCURACY OF REPRESENTATIONS. The representations and warranties
contained in this Agreement are accurate in all respects as of the date of this
Agreement, will be accurate in all respects at all times through the Voting
Covenant Expiration Date and will be accurate in all respects as of the date of
the consummation of the Merger as if made on that date.
5
6
SECTION 7. ADDITIONAL COVENANTS OF STOCKHOLDER
7.1 FURTHER ASSURANCES. From time to time and without additional
consideration, Stockholder shall (at Stockholder's sole expense) execute and
deliver, or cause to be executed and delivered, such additional transfers,
assignments, endorsements, proxies, consents and other instruments, and shall
(at Stockholder's sole expense) take such further actions, as Parent may request
for the purpose of carrying out and furthering the intent of this Agreement.
7.2 LEGENDS. If requested by Parent, immediately after the execution
of this Agreement (and from time to time upon the acquisition by Stockholder of
Ownership of any shares of Company Common Stock prior to the Voting Covenant
Expiration Date), Stockholder shall cause each certificate evidencing any
outstanding shares of Company Common Stock or other securities of the Company
Owned by Stockholder to be surrendered so that the transfer agent for such
securities may affix thereto a legend in the following form:
THE SECURITY OR SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT
BE SOLD, EXCHANGED OR OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT
IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF A VOTING AGREEMENT
DATED AS OF SEPTEMBER 13, 2001, AS IT MAY BE AMENDED, A COPY OF
WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE ISSUER.
SECTION 8. MISCELLANEOUS
8.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations, warranties, covenants and agreements made by Stockholder in
this Agreement shall survive (i) the consummation of the Merger, (ii) any
termination of the Reorganization Agreement and (iii) the Voting Covenant
Expiration Date.
8.2 EXPENSES. All costs and expenses incurred in connection with the
transactions contemplated by this Agreement shall be paid by the party incurring
such costs and expenses.
8.3 NOTICES. Any notice or other communication required or permitted to
be delivered to either party under this Agreement shall be in writing and shall
be deemed properly delivered, given and received when delivered (by hand, by
registered mail, by courier or express delivery service or by facsimile) to the
address or facsimile telephone number set forth beneath the name of such party
below (or to such other address or facsimile telephone number as such party
shall have specified in a written notice given to the other party):
IF TO STOCKHOLDER:
at the address set forth on the signature page hereof; and
IF TO PARENT:
[Giza], Inc.
0000 Xxxxx Xxxxxx
6
7
King of Prussia, PA 19406
Attn: General Counsel
Fax: (000) 000-0000
8.4 SEVERABILITY. If any provision of this Agreement or any part of any
such provision is held under any circumstances to be invalid or unenforceable in
any jurisdiction, then 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
Agreement. Each provision of this Agreement is separable from every other
provision of this Agreement, and each part of each provision of this Agreement
is separable from every other part of such provision.
8.5 ENTIRE AGREEMENT. This Agreement, the Proxy and any other documents
delivered by the parties in connection herewith constitute the entire agreement
between the parties with respect to the subject matter hereof and thereof and
supersede all prior agreements and understandings between the parties with
respect thereto. No addition to or modification of any provision of this
Agreement shall be binding upon either party unless made in writing and signed
by both parties.
8.6 ASSIGNMENT; BINDING EFFECT. Except as provided herein, neither this
Agreement nor any of the interests or obligations hereunder may be assigned or
delegated by Stockholder, and any attempted or purported assignment or
delegation of any of such interests or obligations shall be void. Subject to the
preceding sentence, this Agreement shall be binding upon Stockholder and
Stockholder's heirs, estate, executors and personal representatives and
Stockholder's successors and assigns, and shall inure to the benefit of Parent
and its successors and assigns. Without limiting any of the restrictions set
forth in Section 2 or elsewhere in this Agreement, this Agreement shall be
binding upon any Person to whom any Subject Securities are transferred. Nothing
in this Agreement is intended to confer on any Person (other than Parent and its
successors and assigns) any rights or remedies of any nature.
8.7 SPECIFIC PERFORMANCE. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement or the
Proxy were not performed in accordance with its specific terms or were otherwise
breached. Stockholder agrees that, in the event of any breach or threatened
breach by Stockholder of any covenant or obligation contained in this Agreement
or in the Proxy, Parent shall be entitled (in addition to any other remedy that
may be available to it, including monetary damages) to seek and obtain (a) a
decree or order of specific performance to enforce the observance and
performance of such covenant or obligation and (b) an injunction restraining
such breach or threatened breach. Stockholder further agrees that neither Parent
nor any other Person shall be required to obtain, furnish or post any bond or
similar instrument in connection with or as a condition to obtaining any remedy
referred to in this Section 8.7, and Stockholder irrevocably waives any right he
may have to require the obtaining, furnishing or posting or any such bond or
similar instrument.
8.8 NON-EXCLUSIVITY. The rights and remedies of Parent under this
Agreement are not exclusive of or limited by any other rights or remedies which
it may have, whether at law, in equity, by contract or otherwise, all of which
shall be cumulative (and not alternative). Without
7
8
limiting the generality of the foregoing, the rights and remedies of Parent
under this Agreement, and the obligations and liabilities of Stockholder under
this Agreement, are in addition to their respective rights, remedies,
obligations and liabilities under common law requirements and under all
applicable statutes, rules and regulations. Nothing in this Agreement shall
limit any of Stockholder's obligations, or the rights or remedies of Parent,
under any Affiliate Agreement between Parent and Stockholder, and nothing in any
such Affiliate Agreement shall limit any of Stockholder's obligations, or any of
the rights or remedies of Parent, under this Agreement.
8.9 GOVERNING LAW; VENUE.
(a) This Agreement and the Proxy shall be construed in
accordance with, and governed in all respects by, the laws of the State
of Delaware (without giving effect to principles of conflicts of laws).
(b) Any legal action or other legal proceeding relating to this
Agreement or the Proxy or the enforcement of any provision of this
Agreement or the Proxy may be brought or otherwise commenced in any
state or federal court located in the State of Delaware. Stockholder:
(i) expressly and irrevocably consents and submits to the
jurisdiction of each state and federal court located in the State
of Delaware in connection with any such legal proceeding;
(ii) agrees that service of any process, summons, notice or
document by U.S. mail addressed to him at the address set forth
on the signature page hereof shall constitute effective service
of such process, summons, notice or document for purposes of any
such legal proceeding;
(iii) agrees that each state and federal court located in
the State of Delaware shall be deemed to be a convenient forum;
and
(iv) agrees not to assert (by way of motion, as a defense
or otherwise), in any such legal proceeding commenced in any
state or federal court located in the State of Delaware, any
claim that Stockholder is not subject personally to the
jurisdiction of such court, that such legal proceeding has been
brought in an inconvenient forum, that the venue of such
proceeding is improper or that this Agreement or the subject
matter of this Agreement may not be enforced in or by such court.
Noting contained in this Section 8.9 shall be deemed to limit or
otherwise affect the right of Parent to commence any legal proceeding
or otherwise proceed against Stockholder in any other forum or
jurisdiction.
(c) STOCKHOLDER IRREVOCABLY WAIVES THE RIGHT TO A JURY TRIAL
IN CONNECTION WITH ANY LEGAL PROCEEDING RELATING TO THIS
8
9
AGREEMENT OR THE PROXY OR THE ENFORCEMENT OF ANY PROVISION OF THIS
AGREEMENT OR THE PROXY.
8.10 COUNTERPARTS. This Agreement may be executed 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.
8.11 CAPTIONS. The captions contained in this Agreement are for
convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement.
8.12 ATTORNEYS' FEES. If any legal action or other legal proceeding
relating to this Agreement or the enforcement of any provision of this Agreement
is brought against Stockholder, the prevailing party shall be entitled to
recover reasonable attorneys' fees, costs and disbursements (in addition to any
other relief to which the prevailing party may be entitled).
8.13 WAIVER. No failure on the part of Parent to exercise any power,
right, privilege or remedy under this Agreement, and no delay on the part of
Parent in exercising any power, right, privilege or remedy under this Agreement,
shall operate as a waiver of such power, right, privilege or remedy; and no
single or partial exercise of any such power, right, privilege or remedy shall
preclude any other or further exercise thereof or of any other power, right,
privilege or remedy. Parent shall not be deemed to have waived any claim
available to Parent arising out of this Agreement, or any power, right,
privilege or remedy of Parent under this Agreement, unless the waiver of such
claim, power, right, privilege or remedy is expressly sot forth in a written
instrument duly executed and delivered on behalf of Parent; and any such waiver
shall not be applicable or have any effect except in the specific instance in
which it is given.
8.14 CONSTRUCTION.
(a) For purposes of this Agreement, whenever the context
requires: the singular number shall include the plural, and vice versa;
the masculine gender shall include the feminine and neuter genders; the
feminine gender shall include the masculine and neuter genders; and the
neuter gender shall include masculine and feminine genders.
(b) The parties agree that any rule of construction to the
effect that ambiguities are to be resolved against the drafting party
shall not be applied in the construction or interpretation of this
Agreement.
(c) As used in this Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation but rather shall be deemed to be followed by the words
"without limitation."
(d) Except as otherwise indicated, all references in this
Agreement to "Sections" and "Exhibits" are intended to refer to
Sections of this Agreement and Exhibits to this Agreement.
9
10
EXHIBIT A
FORM OF IRREVOCABLE PROXY
The undersigned stockholder (the "Stockholder") of [ASWAN], INC., a
Delaware corporation (the "Company), hereby irrevocably (to the fullest extent
permitted by law) appoints and constitutes XXXXXXX X. XXXXX,[_________________]
and [GIZA], INC., a Delaware corporation ("Parent"), and each of them, the
attorneys and proxies of the Stockholder with full power of substitution and
resubstitution, to the full extent of the Stockholder's rights with respect to
(i) the outstanding shares of capital stock of the Company owned of record by
the Stockholder as of the date of this proxy, which shares are specified on the
final page of this proxy, and (ii) any and all other shares of capital stock of
the Company which the Stockholder may acquire on or after the date hereof. (The
shares of the capital stock of the Company referred to in clauses "(i)" and
"(ii)" of the immediately preceding sentence are collectively referred to as the
"Shares.") Upon the execution hereof, all prior proxies given by the Stockholder
with respect to any of the Shares are hereby revoked, and the Stockholder agrees
that no subsequent proxies will be given with respect to any of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted
in connection with the Voting Agreement, dated as of the date hereof, between
Parent and the Stockholder (the "Voting Agreement"), and is granted in
consideration of Parent entering into the Agreement and Plan of Merger and
Reorganization, dated as of the date hereof, among Parent, Aswan Acquisition
Corp. and the Company (the "Reorganization Agreement"). This proxy will
terminate on the Voting Covenant Expiration Date (as defined in the Voting
Agreement).
The attorneys and proxies named above will be empowered, and may
exercise this proxy, to vote the Shares at any time until the earlier to occur
of the valid termination of the Reorganization Agreement or the effective time
of the merger contemplated thereby (the "Merger") at any meeting of the
stockholders of the Company, however called, and in connection with any written
action by consent of stockholders of the Company.
(i) in favor of the Merger, the execution and delivery by the
Company of the Reorganization Agreement and the adoption and approval
of the Reorganization Agreement and the terms thereof, in favor of
each of the other actions contemplated by the Reorganization Agreement
and in favor of any action in furtherance of any of the foregoing;
(ii) against any action or agreement that would or could
reasonably result in a breach of any representation, warrant, covenant
or obligation of the Company in the Reorganization Agreement; and
(iii) against or otherwise with respect to the following
actions (other than the Merger and the other transactions contemplated
by the Reorganization Agreement): (A) any extraordinary corporate
transaction, such as a merger, consolidation or other business
combination involving the Company or any subsidiary of the Company;
(B) any sale, lease or transfer of a material amount of assets of the
Company or any subsidiary of the Company; (C) any reorganization,
recapitalization, dissolution or liquidation of the Company or any
subsidiary of the Company; (D) any change in a majority of the board
of
A-1
11
directors of the Company; (E) any amendment to the Company's
certificate of incorporation or bylaws; (F) any material change in the
capitalization of the Company or the Company's corporate structure; and
(G) any other action which is intended, or could reasonably be expected
to impede, interfere with, delay, postpone, discourage or adversely
affect the Merger or any of the other transactions contemplated by the
Reorganization Agreement or the Voting Agreement.
The Stockholder may vote the Shares on all other matters not referred
to in this proxy, and the attorneys and proxies named above may not exercise
this proxy with respect to such other matters.
This proxy shall be binding upon the heirs, estate, executors, personal
representatives, successors and assigns of the Stockholder (including any
transferee of any of the Shares).
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 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.
A-2
