VOTING AGREEMENT
THIS VOTING AGREEMENT dated as of November 9, 1999 (the
"Agreement"), is entered into by and between PSC Inc. ("PSC"), a New York
corporation, and Prentice Family Partnership ("Shareholder").
W I T N E S S E T H :
WHEREAS, concurrent with the execution of this Agreement,
Percon Incorporated, a Washington corporation ("Percon"), PSC and West
Acquisition Corp. ("Newco"), a wholly owned subsidiary of PSC, have entered into
an Agreement and Plan of Merger (the "Merger Agreement"), pursuant to which
Newco will merge with and into Percon (the "Merger");
WHEREAS, upon the consummation of the Merger, Shareholder will
receive $15.00 per share in cash in exchange for shares of Percon common stock,
without par value (the "Percon Common Stock"), including all of the Shares (as
defined below) Beneficially Owned (as defined in Section 1 hereof) by
Shareholder;
WHEREAS, as of the date hereof, Shareholder is the Beneficial
Owner (as defined in Section 1 hereof) of the number of shares of Percon Common
Stock set forth on the signature page hereto (the "Existing Shares," and
together with any shares of Percon Common Stock acquired by Shareholder in any
capacity after the date hereof and prior to the termination of this Agreement by
means of purchase, dividend, distribution, exercise of options or other rights
to acquire Percon Common Stock or in any other way, the "Shares");
WHEREAS, PSC is unwilling to expend the substantial time,
effort and expense necessary to implement the proposed acquisition of Percon
unless Shareholder enters into this Agreement with PSC; and
WHEREAS, Shareholder believes it is in his best interest, as
well as the best interest of Percon, for PSC and Percon to consummate the
Merger.
NOW, THEREFORE, in consideration of the covenants and
agreements of the parties herein contained and as an inducement to PSC to incur
the expenses associated with the Merger the parties hereto, intending to be
legally bound, hereby agree as follows:
1. Definitions. For purposes of this Agreement:
a. "Beneficially Owned" or "Beneficial Ownership" with respect to any
securities shall mean 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")), including pursuant to any
agreement, arrangement or understanding, whether or not in writing. Without
duplicative counting of the same securities by the same holder, securities
Beneficially Owned by a Person (as hereinafter defined) shall include
securities Beneficially Owned by all other Persons with whom such Person
would constitute a "group" within the meaning of Section 13(d)(3) of the
Exchange Act.
b. "Person" shall mean an individual, corporation, partnership, limited
liability company, joint venture, association, trust, unincorporated
organization or other entity.
c. Capitalized terms used and not defined herein shall have the respective
meanings ascribed to them in the Merger Agreement.
2. Representations and Warranties. Shareholder represents that: (a) Shareholder
has the complete and unrestricted power and unqualified right to enter into and
perform the terms of this Agreement; (b) if Shareholder is an entity,
Shareholder has full power and authority to execute and deliver this Agreement
and to perform its obligations hereunder, and the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby by
Shareholder have been duly authorized and approved by all requisite action on
the part of Shareholder and its managers, partners and/or equity holders; (c)
this Agreement constitutes a valid and binding agreement of Shareholder,
enforceable against Shareholder in accordance with its terms; (d) except as set
forth on the signature page hereto, Shareholder owns the Existing Shares free
from any liens or encumbrances of any kind or nature, has the sole and
unrestricted voting power with respect to such Existing Shares and such Existing
Shares are all of the shares of Percon Common Stock directly or indirectly held
or otherwise Beneficially Owned by Shareholder; and (e) the certificates
representing the Existing Shares include a restrictive legend to the effect that
the shares may not be transferred unless the transfer is registered under the
Securities Act of 1933, as amended, or Percon is satisfied that an exemption
from registration under the Securities Act of 1933, as amended, is available.
3. Voting Agreement; Proxy. Shareholder shall vote or cause to be voted all of
the Shares (a) in favor of the Merger and the approval and adoption of the
Merger Agreement at every meeting of shareholders of Percon at which such
matters are considered and at every adjournment or postponement thereof and (b)
against any Percon Acquisition Proposal at every meeting of the shareholders of
Percon at which such matters are considered and at every adjournment thereof.
Shareholder shall deliver to PSC immediately upon request therefor a proxy
substantially in the form attached hereto as Exhibit A, which proxy shall be
irrevocable to the extent permitted by law (except that such proxy shall be
deemed automatically revoked upon a termination of this Agreement in accordance
with Section 17), with the total number of Shares correctly indicated thereon.
4. No Transfer. Shareholder shall not sell, transfer, pledge, encumber or
otherwise dispose of shares of Percon Common Stock to any third party unless, as
a condition of such transfer, sale, pledge, encumbrance or other disposition,
the third party shall execute a voting agreement in form acceptable to PSC (and
substantially in the form of this Agreement) and such voting agreement shall be
deemed a supplement to this Agreement to which all shares of Percon Common Stock
then owned or thereafter acquired by the third party transferee shall be
subject.
5. No Solicitation. Shareholder hereby agrees, in the capacity as a shareholder
of Percon, that until this Agreement is terminated in accordance with its terms,
neither Shareholder nor any affiliates, representatives or agents shall (and, if
Shareholder is a corporation, partnership, trust or other entity, Shareholder
shall cause its officers, directors, partners, and employees, representatives
and agents, including but not limited to, investment bankers, attorneys and
accountants, not to), directly or indirectly, take any action that, if taken by
Percon, would violate Section 6.8 of the Merger Agreement.
6. Other Agreements. Shareholder hereby agrees to execute and deliver at Closing
(a) the Noncompetition Agreement referenced in Section 6.1(i) of the Merger
Agreement, (b) the Employment or Consulting Agreement referenced in Section
6.1(j) of the Merger Agreement and (c) a general release of Shareholder in favor
of Percon and its affiliates in substantially the form attached hereto as
Exhibit B. Shareholder acknowledges that Percon will publish and disclose in the
Proxy Statement (as defined in the Merger Agreement) (including all documents
and schedules filed with the SEC) Shareholder's identity and ownership of the
Shares and the nature of its commitments, arrangements and understandings under
this Agreement.
7. No Ownership Interest. Except as expressly set forth in this Agreement,
nothing contained in this Agreement shall be deemed to vest in PSC any direct or
indirect ownership or incidence of ownership of or with respect to any shares of
Percon Common Stock. All rights, ownership and economic benefits of and relating
to the Shares shall remain and belong to Shareholder, and PSC shall have no
authority to manage, direct, superintend, restrict, regulate, govern or
administer any of the policies or operations of Percon or exercise any power or
authority to direct Shareholder in the voting of any of the Shares, except as
otherwise expressly provided herein, or the performance of his duties or
responsibilities as a shareholder of Percon.
8. No Voting Trusts. Shareholder agrees that Shareholder will not, nor will
Shareholder permit any entity under Shareholder's control to, deposit any of the
Shares in a voting trust or subject any of the Shares to any agreement,
arrangement or understanding with respect to the voting of the Shares
inconsistent with this Agreement. Any such action or inaction on the part of
Shareholder in violation of the foregoing provision shall be automatically null
and void.
9. Specific Performance and Remedies. The parties hereto acknowledge that it
will be impossible to measure in money the damage to the other party(ies) if a
party hereto fails to comply with the obligations imposed by this Agreement and
that, in the event of such failure, the other party(ies) will not have an
adequate remedy at law or in damages. Accordingly, each party hereto agrees that
injunctive relief or other equitable remedy, in addition to remedies at law or
in damages, is the appropriate remedy for any such failure. No party will oppose
the granting of injunctive relief or other equitable remedy on the basis that
the other party(ies) have an adequate remedy at law. Each party hereto agrees
that it will not seek, and agrees to waive any requirement for, the securing or
posting of a bond in connection with any other party's seeking or obtaining such
equitable relief. In addition to all other rights or remedies which any party
hereto may have against any other party hereto who defaults in the performance
of such party's obligations under this Agreement, such defaulting party shall be
liable to the nondefaulting party for all litigation costs and attorneys' fees
incurred by the nondefaulting party(ies) in connection with the enforcement of
any of the nondefaulting party's rights or remedies against the defaulting
party.
10. Amendment and Modification. This Agreement may be amended, modified or
supplemented at any time only by the written approval of such amendment,
modification or supplement by Percon, Shareholder and PSC.
11. Entire Agreement. This Agreement and the Merger Agreement evidence the
entire agreement among the parties hereto with respect to the matters provided
for herein, and there are no agreements, representations or warranties with
respect to the matters provided for herein other than those set forth herein.
12. Severability. The parties agree that if any provision of this Agreement
shall under any circumstances be deemed invalid or inoperative, then this
Agreement shall be construed with the invalid or inoperative provisions deleted
and the rights and obligations of the parties shall be construed and enforced
accordingly.
13. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute but one and the same instrument.
14. Governing Law. The validity, construction, enforcement and effect of this
Agreement shall be governed by the internal laws of the State of New York,
without reference to conflict of law principles of any jurisdiction (including
without limitation New York) which would result in the application of the
domestic substantive laws of any other jurisdiction, except that the Washington
Business Corporation Act shall apply as to matters arising under such law.
15. Headings. The headings for the paragraphs of this Agreement are inserted for
convenience only and shall not constitute a part hereof or affect the meaning or
interpretation of this Agreement.
16. Successors. This Agreement shall be binding upon and inure to the benefit of
Percon and PSC, and their successors, and Shareholder and Shareholder's spouse
and their respective executors, personal representatives, administrators, heirs,
legatees, guardians and other legal representatives. This Agreement shall
survive the death or incapacity of Shareholder.
17. Termination. This Agreement shall terminate at the earlier of (i) the
termination of the Merger Agreement or (ii) consummation of the transactions
contemplated by the Merger Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
PSC INC.
[SEAL]
By:
Title:
SHAREHOLDER
PRENTICE FAMILY PARTNERSHIP
[SEAL]
Xxxxx X. Xxxxxxxx, General Partner
Number of Existing Shares: 15,500
Exceptions under Section 2(d): ________________________________________________
AUTHORITY
The undersigned, individually, represents for the benefit of
PSC that he has the complete and unrestricted power and unqualified right to
execute this Agreement on behalf of Shareholder and thereby bind Shareholder
under this Agreement.
_______________________ [SEAL]
Date Xxxxx X. Xxxxxxxx
CONSENT OF SPOUSE
I, the undersigned spouse of _______________, hereby
acknowledge that I have read the foregoing Agreement and consent to its terms
and to the disposition made herein of any interest I may have or acquire in the
common stock of Percon through community or marital property or otherwise.
_______________________ [SEAL]
Date
Exhibit A
FORM OF PROXY
The undersigned, for consideration received, hereby appoints
PSC Inc. his proxy, with power of substitution, to vote all shares of common
stock of Percon Incorporated, a Washington corporation ("Percon"), owned by the
undersigned at the upcoming Special Meeting of Shareholders of Percon, and at
any adjournment thereof, FOR approval and adoption of the Agreement and Plan of
Merger, dated as of November __, 1999, among PSC Inc., Percon and West
Acquisition Corp. This proxy is coupled with an interest and is irrevocable
until such time as the Shareholder Voting Agreement, dated as of November __,
1999, among the undersigned and PSC Inc. terminates in accordance with its
terms. This proxy is exercisable on behalf of PSC Inc. by the President or any
Vice President of PSC Inc.
Dated: ___________
------------------------------
Shareholder
Exhibit B
