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EXHIBIT 2.3
EXHIBIT A
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as of June __, 2000, by
and among [PARENT], a Delaware corporation ("Parent"), [SUB], a Delaware
corporation and wholly owned subsidiary of Parent (the "Sub"), and [STOCKHOLDER]
("Stockholder").
WITNESSETH:
WHEREAS, immediately prior to the execution of this Agreement,
Parent, Sub and [COMPANY], a Michigan corporation (the "Company"), have entered
into an Agreement and Plan of Merger of even date herewith (the "Merger
Agreement"), pursuant to which the parties thereto have agreed, upon the terms
and subject to the conditions set forth therein, to merge Sub with and into the
Company (the "Merger"); and
WHEREAS, as of the date hereof, Stockholder is the record and
Beneficial Owner (as defined hereinafter) of Existing Shares (as
defined hereinafter) of the common stock, no par value, of the Company (the
"Company Common Stock"); and
WHEREAS, as inducement and a condition to entering into the Merger
Agreement, Parent has required Stockholder to agree, and Stockholder has agreed,
to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound hereby, agree as
follows:
Section 1. Certain Definitions. In addition to the terms defined
elsewhere herein, capitalized terms used and not defined herein have the
respective meanings ascribed to them in the Merger Agreement. For purposes of
this Agreement:
(a) "Beneficially Own" or "Beneficial Ownership" with respect to any
securities means having "beneficial ownership" of such securities as determined
pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"). Without duplicative counting of the same securities by the
same holder, securities Beneficially Owned by a person include securities
Beneficially Owned by all other persons with whom such person would constitute a
"group" within the meaning of Section 13(d) of the Exchange Act with respect to
the securities of the same issuer.
(b) "Existing Shares" means shares of the Company Common Stock
Beneficially Owned by Stockholder as of the date hereof.
(c) "Securities" means the Existing Shares together with any shares
of the Company Common Stock or other securities of the Company acquired by
Stockholder in any capacity after the date hereof and prior to the termination
of this Agreement whether upon the exercise of options, warrants or rights, the
conversion or exchange of convertible or exchangeable securities, or by means of
purchase, dividend, distribution,
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split-up, recapitalization, combination, exchange of shares or the like, gift,
bequest, inheritance or as a successor in interest in any capacity or otherwise.
Section 2. Representations And Warranties of Stockholder.
Stockholder represents and warrants to Parent and Sub as follows:
(a) Ownership of Shares. Stockholder is the sole record and
Beneficial Owner of (i) the Existing Shares, (ii) Company Options to purchase [
] shares of Company Common Stock ("Stockholder Options") and (iii) Company
Warrants to purchase [ ] shares of Company Common Stock ("Stockholder
Warrants"). On the date hereof, the Existing Shares constitute all of the shares
of the Company Common Stock owned of record or Beneficially Owned by
Stockholder. There are no outstanding options or other rights to acquire from
Stockholder or obligations of Stockholder to sell or to acquire, any shares of
the Company Common Stock. Stockholder has sole voting power and sole power to
issue instructions with respect to the matters set forth in Sections 5 through 9
hereof, sole power of disposition, sole power of conversion, sole power to
demand appraisal rights and sole power to agree to all of the matters set forth
in this Agreement, in each case with respect to all of the Existing Shares with
no limitations, qualifications or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement.
(b) Power; Binding Agreement. Stockholder has the legal capacity,
power and authority to enter into and perform all of Stockholder's obligations
under this Agreement. This Agreement has been duly and validly executed and
delivered by Stockholder and constitutes a valid and binding agreement of
Stockholder, enforceable against Stockholder in accordance with its terms except
that (i) such enforcement may be subject to applicable bankruptcy, insolvency or
other similar laws, now or hereafter in effect, affecting creditors' rights
generally, and (ii) the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought.
(c) No Conflicts. Except as contemplated by the Merger Agreement, no
filing with, and no permit, authorization, consent or approval of, any state or
federal public body or authority ("Governmental Entity") is necessary for the
execution of this Agreement by Stockholder and the consummation by Stockholder
of the transactions contemplated hereby, none of the execution and delivery of
this Agreement by Stockholder, the consummation by Stockholder of the
transactions contemplated hereby or compliance by Stockholder with any of the
provisions hereof shall (i) conflict with or result in any breach of any
organizational documents applicable to Stockholder, (ii) result in a violation
or breach of, or constitute (with or without notice or lapse of time or both) a
default (or give rise to any third party right of termination, cancellation,
material modification or acceleration) under any of the terms, conditions or
provisions of any note, loan agreement, bond, mortgage, indenture, license,
contract, commitment, arrangement, understanding, agreement or other instrument
or obligation of any kind to which Stockholder is a party or by which
Stockholder or any of its properties or assets may be bound, or (iii) violate
any order, writ, injunction, decree, judgment, order, statute, rule or
regulation applicable to Stockholder or any of Stockholder's properties or
assets, except in the
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case of clauses (ii) and (iii) where the failure to obtain such permits,
authorizations, consents or approvals or to make such filings, or where such
violations, breaches or defaults would not, individually or in the aggregate,
materially impair the ability of Stockholder or the Company to consummate the
transactions contemplated by the Merger Agreement, this Agreement or by the
other Ancillary Agreements.
(d) No Encumbrance. Except as permitted by this Agreement, the
Existing Shares are now and, at all times during the term hereof, and the
Securities will be, held by Stockholder, or by a nominee or custodian for the
benefit of Stockholder, free and clear of all mortgages, claims, charges, liens,
security interests, pledges or options, proxies, voting trusts or agreements,
understandings or arrangements or any other rights whatsoever ("Encumbrances"),
except for any such Encumbrances arising hereunder.
(e) No Finder's Fees. No broker, investment banker, financial
advisor or other person is entitled to any broker's, finder's, financial
adviser's or other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of Stockholder.
(f) Reliance by Parent. Stockholder understands and acknowledges
that Parent is entering into, and causing Sub to enter into, the Merger
Agreement in reliance upon Stockholder's execution and delivery of this
Agreement.
Section 3. Representations And Warranties of Parent And Sub.
Each of Parent and Sub hereby, jointly and severally, represents and
warrants to Stockholder as follows:
(a) Power; Binding Agreement. Parent and Sub each has the corporate
power and authority to enter into and perform all of its obligations under this
Agreement. This Agreement has been duly and validly executed and delivered by
each of Parent and Sub and constitutes a valid and binding agreement of Parent
and Sub, enforceable against each of Parent and Sub in accordance with its
terms, except that (i) such enforcement may be subject to applicable bankruptcy,
insolvency or other similar laws, now or hereafter in effect, affecting
creditors' rights generally, and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought.
(b) No Conflicts. Except as contemplated by the Merger Agreement, no
filing with, and no permit, authorization, consent or approval of, any
Governmental Entity is necessary for the execution of this Agreement by Parent
and Sub and the consummation by Parent and Sub of the transactions contemplated
hereby, and none of the execution and delivery of this Agreement by each of
Parent and Sub, the consummation by each of Parent and Sub of the transactions
contemplated hereby or compliance by each of Parent and Sub with any of the
provisions hereof shall (i) conflict with or result in any breach of any
provision of the respective certificates of incorporation or by-laws of Parent
and Sub, (ii) require any filing with, or permit, authorization, consent or
approval of, any Governmental Entity, (iii) result in a violation or breach of,
or constitute (with or without due notice or lapse of time or both) a default
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(or give rise to any right of termination, cancellation or acceleration) under,
any of the terms, conditions or provisions of any material note, bond, mortgage,
indenture, license, lease, contract, agreement or other instrument or obligation
to which Parent or any of its Subsidiaries is a party or by which any of them or
any of their properties or assets may be bound or (iv) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to Parent, any of its
Subsidiaries or any of their properties or assets, except in the case of clauses
(ii), (iii) and (iv) where the failure to obtain such permits, authorizations,
consents or approvals or to make such filings, or where such violations,
breaches or defaults would not, individually or in the aggregate, materially
impair the ability of Parent or Sub to consummate the transactions contemplated
by the Merger Agreement, this Agreement or by the other Ancillary Agreements.
Section 4. Disclosure. Stockholder hereby agrees to permit Parent to
publish and disclose in the Registration Statement and the Proxy Statement/
Prospectus (including all documents and schedules filed with the Securities and
Exchange Commission), and any press release or other disclosure document which
Parent, in its sole discretion determines to be necessary or desirable in
connection with the Merger and any transactions related thereto, Stockholder's
identity and ownership of the Company Common Stock and the nature of
Stockholder's commitments, arrangements and understandings under this Agreement.
Section 5. Transfer And Other Restrictions. Prior to the
termination of this Agreement, Stockholder agrees not to, directly or
indirectly:
(i) except pursuant to the terms of the Merger Agreement,
offer for sale, sell, transfer, tender, pledge, encumber, assign or
otherwise dispose of, or enter into any contract, option or other
arrangement or understanding with respect to or consent to the offer
for sale, sale, transfer, tender, pledge, encumbrance, assignment or
other disposition of any or all of the Securities or any interest
therein except as provided in Section 6 hereof;
(ii) grant any proxy, power of attorney, deposit any of the
Securities into a voting trust or enter into a voting agreement or
arrangement with respect to the Securities except as provided in
this Agreement; or
(iii) take any other action that would make any representation
or warranty of Stockholder contained herein untrue or incorrect or
have the effect of preventing or disabling Stockholder from
performing its obligations under this Agreement.
Section 6. Voting of the Company Common Stock. Stockholder hereby
agrees that, during the period commencing on the date hereof and continuing
until the first to occur of (a) the Effective Time or (b) termination of this
Agreement in accordance with its terms, at any meeting (whether annual or
special and whether or not an adjourned or postponed meeting) of the holders of
the Company Common Stock, however called, or in connection with any written
consent of the holders of the Company Common Stock, Stockholder will appear at
the meeting or otherwise cause the
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Securities to be counted as present thereat for purposes of establishing a
quorum and vote or consent (or cause to be voted or consented) the Securities:
(A) in favor of the adoption of the Merger Agreement and
the approval of other actions contemplated by the Merger Agreement
and this Agreement and any actions required in furtherance thereof
and hereof;
(B) against any action or agreement that would result in
a breach in any respect of any covenant, representation or warranty
or any other obligation or agreement of the Company under the Merger
Agreement or this Agreement; and
Stockholder may not enter into any agreement or understanding with
any person the effect of which would be inconsistent with or violative of any
provision contained in this Section 6.
Section 7. Proxy.
(a) Stockholder hereby irrevocably grants to, and appoints, Parent
and Xxxxxxx X. Xxxxxxx, Xxxxxx X. Consul, or any of them in their respective
capacities as officers of Parent and any individual who shall hereafter succeed
to any such office of Parent and each of them individually, such Stockholder's
proxy and attorney-in-fact (with full power of substitution), for and in the
name, place and stead of Stockholder, to vote the Securities, or grant a consent
or approval in respect of the Securities, in connection with any meeting of the
stockholders of the Company, as specified in Section 6 hereof.
(b) Stockholder represents that any other proxies heretofore given
in respect of the Existing Shares are not irrevocable, and that such proxies are
hereby revoked.
(c) Stockholder understands and acknowledges that Parent is entering
into the Merger Agreement in reliance upon such Stockholder's execution and
delivery of this Agreement. Stockholder hereby affirms that the irrevocable
proxy set forth in this Section 7 is given in connection with the execution of
the Merger Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of Stockholder under this Agreement. Stockholder
hereby further affirms that the irrevocable proxy is coupled with an interest
and may not be revoked under any circumstances. Stockholder hereby ratifies and
confirms all that such irrevocable proxy may lawfully do or cause to be done by
virtue hereof. Such irrevocable proxy is executed and intended to be irrevocable
in accordance with the provisions of Section 422 of the Michigan Business
Corporation Act.
Section 8. Lock-Up. As a further inducement to Parent to enter into
the Merger Agreement, the Stockholder hereby agrees that until 90 days after the
Closing Date (as defined in the Merger Agreement), the Stockholder will not
offer for sale, sell, transfer, tender, pledge, encumber, assign or otherwise
dispose of, or enter into any contract, option or other arrangement or
understanding with respect to or consent to the offer for sale, sale, transfer,
tender, pledge, encumbrance, assignment
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or other disposition of any or all of the Parent Common Stock, or securities
convertible into or exchangeable or exercisable for any shares of Parent Common
Stock, Beneficially Owned or controlled by such Stockholder as of the date
hereof or at any time hereafter, in cash or otherwise, without, in each case,
the prior written consent of Parent; provided, that the foregoing prohibitions
will not apply to shares sold for the express purpose of covering the exercise
price of Stockholder Options. In furtherance of the foregoing, Parent and its
transfer agent and registrar are hereby authorized to decline to make any
transfer of shares of such securities if such transfer would constitute a
violation or breach of this Agreement.
Section 9. Stop Transfer; Legend.
(a) Stockholder agrees with, and covenants to, Parent that
Stockholder will not request that the Company register the transfer (book-entry
or otherwise) of any certificate or uncertificated interest representing any of
the Securities, unless such transfer is made in compliance with this Agreement.
(b) In the event of a stock dividend or distribution, or any change
in the Company Common Stock by reason of any stock dividend, split-up,
recapitalization, combination, exchange of share or the like other than pursuant
to the Merger, the term "Existing Shares" will be deemed to refer to and include
the shares of the Company Common Stock as well as all such stock dividends and
distributions and any shares into which or for which any or all of the
Securities may be changed or exchanged and appropriate adjustments shall be made
to the terms and provisions of this Agreement.
(c) Stockholder will promptly after the date hereof surrender to the
Company all certificates representing the Securities, the Company will place the
following legend on such certificates in addition to any other legend required
thereof:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER PURSUANT TO AND OTHER PROVISIONS OF A VOTING
AGREEMENT, DATED AS OF JUNE , 2000, BY AND AMONG [PARENT], [SUB] AND
[STOCKHOLDER]."
Section 10. Reasonable Best Efforts. Subject to the terms and
conditions of this Agreement, each of the parties hereto agrees to use its
reasonable best efforts to take, or cause to be taken, all actions, and to do,
or cause to be done, all things necessary, proper or advisable under applicable
laws and regulations to consummate and make effective the transactions
contemplated by this Agreement and the Merger Agreement. Each party shall
promptly consult with the other and provide any necessary information and
material with respect to all filings made by such party with any Governmental
Entity in connection with this Agreement and the Merger Agreement and the
transactions contemplated hereby and thereby.
Section 11. Termination. This Agreement shall terminate on the
earliest of (a) termination of the Merger Agreement pursuant to Section 7.1(a),
(b) or (c) thereof, (b) six months following the termination of the
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Merger Agreement pursuant to Section 7.1(d) or (e) thereof, (c) the agreement of
the parties hereto to terminate this Agreement, or (d) the consummation of the
Merger.
Section 12. Miscellaneous.
(a) Entire Agreement. This Agreement (including the documents and
instruments referred to herein) constitutes the entire agreement and supersedes
all other prior agreements and understandings, both written and oral, among the
parties, or any of them, with respect to the subject matter hereof.
(b) Successors and Assigns. This Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of the other
parties hereto. This Agreement shall be binding upon, inure to the benefit of
and be enforceable by each party and such party's respective heirs,
beneficiaries, executors, representatives and permitted assigns.
(c) Amendment and Modification. This Agreement may not be amended,
altered, supplemented or otherwise modified or terminated except upon the
execution and delivery of a written agreement executed by the parties hereto.
(d) Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally, telecopied (which
is confirmed) or sent by an overnight courier service, such as FedEx, to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
If to Parent or Sub, to:
[to come]
Attention:
Telephone No.:
Facsimile No.:
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxxxxxxx Xxxxxx - Xxxxx 000
Xxxx Xxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
If to Stockholder, to:
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with a copy to:
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(e) Severability. Any term or provision of this Agreement which is
held to be invalid, illegal or unenforceable in any respect in any jurisdiction
shall, as to that jurisdiction, be ineffective to the extent of such invalidity
or unenforceability without rendering invalid or unenforceable the remaining
terms and provisions of this Agreement or affecting the validity or
enforceability of any of the terms or provisions of this Agreement in any other
jurisdiction. If any provision of this Agreement is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
(f) Specific Performance. Each of the parties hereto recognizes and
acknowledges a breach by it of any covenants or agreements contained in this
Agreement will cause the other party to sustain damages for which it would not
have an adequate remedy at law for money, damages, and therefore in the event of
any such breach the aggrieved party shall be entitled to the remedy of specified
performance of such covenants and agreements and injunctive and other equitable
relief in addition to any other remedy to which it may be entitled, at law or in
equity.
(g) No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, will not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
(h) No Third Party Beneficiaries. This Agreement is not
intended to confer upon any person other than the parties hereto any rights
or remedies hereunder.
(i) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware, without giving effect to the
principles of conflict of law thereof, except in such cases as the laws of the
State of Michigan are mandatorily applicable.
(j) Descriptive Heading. The descriptive headings used herein
are for reference purposes only and will not affect in any way the meaning
or interpretation of this Agreement.
(k) Expenses. All costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be paid by the
party incurring such expenses.
(l) Further Assurances. From time to time, at any other party's
request and without further consideration, each party hereto shall execute and
deliver such additional documents and take all such further lawful action as may
be necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this Agreement.
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(m) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, Parent, Sub and Stockholder have caused this
Agreement to be duly executed as of the day and year first written above.
[PARENT]
By:
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Name:
Title:
[SUB]
By:
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Name:
Title:
By:
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[Stockholder]*
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* In the event this agreement covers shares held jointly or held individually by
related parties who will sign this together, each joint or related party shall
sign.
