STOCKHOLDER SUPPORT AGREEMENT
Exhibit 99.2
THIS STOCKHOLDER SUPPORT AGREEMENT dated as of
December 10, 2002 (this “Agreement”), is entered into by and between Europa International Inc. (the “Stockholder”) and Bright Now! Dental, Inc., a Washington corporation (“Parent”).
WHEREAS, as of the date hereof, the Stockholder owns beneficially 403,900 shares of common stock (“Common
Stock”), of Monarch Dental Corporation, a Delaware corporation (the “Company”) (collectively and together with any other voting or equity securities of the Company hereafter acquired by the Stockholder beneficially or of
record prior to the termination of this Agreement, the “Shares”);
WHEREAS, Parent, Milkweed,
Inc., a Delaware corporation and a wholly-owned subsidiary of Parent (“Merger Sub”), and the Company propose to enter into a transaction pursuant to which Merger Sub will be merged with and into the Company such that the Company
will become a wholly-owned subsidiary of Parent and each share of common stock of the Company (“Common Stock”) will be converted into the right to receive a cash payment in the amount of $5.75 per share (the
“Merger;” the term “Merger” in no event including a merger in which the Stockholder receives less than $5.75 in cash per share of Common Stock); and
WHEREAS, Parent has requested that the Stockholder agree, and in order to induce Parent to enter into the Agreement and Plan of Merger, dated as of November 27, 2002, as
amended by Amendment No. 1 thereto dated as of the date of this Agreement and increasing the per share consideration to be paid in the Merger to $5.75 per share, in the form attached hereto as Exhibit A (as so amended, the “Merger
Agreement”), a copy of which has been provided to the Stockholder, the Stockholder is willing, to consent to the approval of the Merger Agreement and the Merger contemplated thereby and to agree to certain other matters, all upon the terms
and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound hereby, the parties hereby agree, severally and not jointly, as follows:
Section 1. Consent; Voting of Shares; Proxy.
(a) The Stockholder hereby agrees that at any meeting of the stockholders of the Company, however called, and in any action by consent of the stockholders of the Company in lieu of a meeting, the Stockholder will vote all
of its Shares (i) in favor of (A) the approval of the Merger Agreement and the Merger and hereby irrevocably consents to the adoption and approval of the Merger Agreement and the Merger Agreement and (B) any other matter necessary to consummate the
transactions contemplated by the terms of the Merger Agreement and (ii) against (X) any merger agreement or merger (other than the Merger), consolidation, combination, sale of substantial assets, sale of securities, reorganization, recapitalization,
liquidation or winding up of the company or any other similar transaction involving the Company and any other Acquisition Proposal (as defined below) or (Y) corporate action the consummation of which would frustrate the purposes or impede, prevent,
nullify or delay consummation of the Merger. In addition, the Stockholder agrees that it will, upon request by Parent, furnish written confirmation, in form and substance reasonably satisfactory to Parent, of such Stockholder’s support for the
Merger.
(b) From time to time and without additional consideration, the Stockholder shall execute and deliver, or
cause to be executed and delivered, such proxies, consents and other similar instruments and shall take such further actions as Parent may reasonably request for the purpose of carrying out the intent of this Agreement. The Stockholder shall use all
reasonable efforts to assist and cooperate with other parties to consummate and make effective, in the most expeditious manner practicable, the Merger and the other transactions contemplated thereby.
Section 2. Transfer of Shares. The Stockholder agrees that it will not take any action to, directly or
indirectly, (a) offer to sell, sell, assign, transfer (including by operation of law), pledge, encumber or otherwise dispose of any of the Shares, (b) deposit any of the Shares into a voting trust or enter into a voting agreement or arrangement with
respect to any Shares or grant any proxy or power of attorney with respect thereto or (c) enter into any contract, option or other arrangement or undertaking with respect to the direct or indirect sale, assignment, transfer (including by operation
of law) or other disposition of or transfer of any interest in or the voting of any of the Shares or any other securities of the Company.
Section 3. No Solicitation. The Stockholder shall not, nor shall the Stockholder permit any of its shareholders or affiliates or any director, officer, employee, partner, member, investment
banker, attorney, or other adviser or representative of any of the foregoing, to (i) directly or indirectly solicit, initiate or encourage the submission of, any Acquisition Proposal or (ii) directly or indirectly participate in any discussions or
negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition
Proposal. As used herein, “Acquisition Proposal” means any offer or proposal concerning any (A) merger, consolidation, business combination, recapitalization or similar transaction involving the Company or any subsidiary of the
Company, (B) sale, lease or other disposition directly or indirectly by merger, consolidation, business combination, share exchange, joint venture, or otherwise of assets of the Company or any subsidiary of the Company representing 50% or more of
the consolidated assets of the Company and the Company’s subsidiaries, (C) issuance, sale, or other disposition of (including by way of merger, consolidation, business combination, share exchange, joint venture, or any similar transaction)
securities (or options, rights or warrants to purchase, or securities convertible into or exchangeable for such securities) representing 50% or more of the voting power of the Company, (D) transaction in which any person shall acquire beneficial
ownership, or the right to acquire beneficial ownership or any group shall have been formed which beneficially owns or has the right to acquire beneficial ownership of 50% or more of the outstanding voting capital stock of the Company or (E) any
combination of the foregoing (other than the Merger).
Section 4. Legending of
Certificates; Nominee Shares. The Stockholder agrees to use its reasonable efforts to find and submit to Parent contemporaneously with or promptly following the execution of this Agreement (or promptly following receipt of any additional
certificates representing any additional Shares), any certificates representing the Shares held by the Stockholder which are held of record in the Stockholder’s name (if any), so that Parent may note thereon a legend identical or similar in
effect to the following legend (together with any other legend or legends required by applicable state securities laws or otherwise):
“THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A STOCKHOLDER SUPPORT AGREEMENT DATED AS OF DECEMBER 10, 2002 BY AND BETWEEN THE REGISTERED HOLDER HEREOF AND THE OTHER PARTY NAMED THEREIN, A COPY OF WHICH IS
ON FILE AT THE PRINCIPAL OFFICE OF THE ISSUER OF SUCH CERTIFICATE.”
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Section 5. Termination. This Agreement (and the obligations of Stockholder hereunder) shall
terminate upon the earlier to occur of (i) the effective time of the Merger, (ii) any termination of the Merger Agreement in accordance with the terms thereof (provided that no such termination shall relieve the Stockholder of liability for a breach
hereof prior to termination), (iii) any material amendment to any provision of the Merger Agreement (unless agreed to in writing by the Stockholder), including, without limitation, any amendment or waiver which would result in the Stockholder
receiving less than $5.75 in cash per share of Common Stock upon the consummation of the Merger, or (iv) the date that is 180 days after the date of this Agreement.
Section 6. Representations. The Stockholder represents and warrants to Merger Sub and Parent as follows:
(a) The Stockholder is the beneficial owner of, and has good title to, all of the Shares, and there exist no restrictions on
transfer, options, proxies, voting agreements, voting trusts or liens affecting said Shares, except as imposed by law.
(b) The execution and delivery of this Agreement by the Stockholder does not, and the performance by the Stockholder of its obligations hereunder will not, constitute a violation of, conflict with, result in a default (or
an event which, with notice or lapse of time or both, would result in a default) under, or result in the creation of any lien on any of the Shares under, (i) any contract commitment, agreement, understanding, arrangement or restriction of any kind
to which the Stockholder is a party or by which the Stockholder or the Shares are bound, (ii) any judgment, writ, decree, order or ruling affecting the Stockholder or the Shares.
(c) The Stockholder has full power and authority to execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby. This
Agreement has been duly and validly executed and delivered by the Stockholder and, assuming due authorization, execution and delivery by the Parent and Merger Sub, constitutes a valid and binding agreement of the Stockholder, enforceable against the
Stockholder in accordance with its terms, except to the extent that enforceability 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.
(d) The Stockholder has not entered into nor will Stockholder enter into any contract, agreement, arrangement or understanding with any person or entity which will result in the obligation of Parent or the Company to pay
any finder’s fee, brokerage commission or similar payment in connection with the transactions contemplated hereby.
Section 7. Waiver of Dissenter’s and Appraisal Rights. The Stockholder agrees that it will not exercise any rights to dissent from the Merger or request appraisal of its Shares pursuant to Section
262 of the Delaware General Corporation Law or any other similar provisions of law in connection with the Merger.
Section 8. Fees of Stockholder. As an inducement to Stockholder to enter into this Agreement, and in consideration therefor, Parent shall reimburse Stockholder an amount of up to $60,000 in cash
immediately following the consummation of the Merger, but not later than two business days following the date of the stockholders’ meeting at which the stockholders of the Company vote for adoption and approval of the Merger Agreement to
reimburse Stockholder for documented legal fees incurred by Stockholder in connection with the Merger or in connection with the Stockholder’s investment in the Company. In the event such amount is not paid to the Stockholder within such time,
this Agreement shall be null and void and of no force and effect.
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Section 9. Specific Performance. The parties hereto agree that irreparable damage would
occur in the event any provision of this Agreement were 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.
Section 10. Miscellaneous.
(a) This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements
and understandings, both written and oral, between the parties with respect thereto. This Agreement may not be amended, modified or rescinded except by an instrument in writing signed by each of the parties hereto.
(b) 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. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the fullest extent permitted by applicable law in a mutually acceptable manner in order that the terms of this
Agreement remain as originally contemplated to the fullest extent possible.
(c) This Agreement shall
be governed by and construed in accordance with the internal laws of the State of Delaware without regard to the principles of conflicts of law thereof.
(d) This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be signed as of the date first written above.
| EUROPA INTERNATIONAL INC. | ||
| By: |
/s/ Xxxx Xxxxx | |
| Name: |
Xxxx Xxxxx - Xxxxx Capital Management | |
| Title: |
Investment Manager for Europa International Inc. | |
| BRIGHT NOW! DENTAL, INC. | ||
| By: |
/s/ Xxxxxx X. Bilt | |
| Name: |
Xxxxxx X. Bilt | |
| Title: |
President and Chief Executive Officer | |
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