VOTING AGREEMENT
This Voting Agreement (this "Agreement") is made and entered into on April 1,
2002, by and among Xxxxx Inc., an Ohio corporation ("Acquiror"), the undersigned
stockholder ("Stockholder") of ONTRACK Data International, Inc., a Minnesota
corporation (the "Company"), and the Company.
RECITALS
WHEREAS, concurrent with the execution of this Agreement, Acquiror, ODI
Acquisition Corporation, a Minnesota corporation, and the Company are entering
into an Agreement and Plan of Reorganization (as amended, modified or
supplemented in accordance with the terms, the "Merger Agreement"), which
provides for the acquisition of the Company by Acquiror, subject to certain
conditions, through a merger whereby holders of the outstanding shares of common
stock of the Company will be entitled to receive shares of common stock of
Acquiror as provided in the Merger Agreement; and
WHEREAS, Stockholder is the beneficial holder of the number of Shares
(as defined below) indicated on the signature page of this Agreement; and
WHEREAS, Acquiror and Stockholder wish to provide for the voting of the
Shares beneficially held by Stockholder with respect to the adoption and
approval of the Merger Agreement, the Merger and the other transactions
contemplated thereby.
NOW, THEREFORE, as an inducement to Acquiror to enter into the Merger
Agreement and for other good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged by each of the parties hereto), and
intending to be legally bound hereby, the parties hereto agree as follows:
1. Certain Definitions. For purposes of this Agreement the following terms
shall have the following meanings (all other capitalized terms not otherwise
defined herein shall have the meanings ascribed thereto in the Merger
Agreement):
1.1 "Expiration Time" shall mean the earlier to occur of (i) the
termination of the Merger Agreement in accordance with its terms and (ii) the
Effective Time of the Merger.
1.2 "Person" shall mean any individual, corporation, limited
liability company, partnership, trust or other entity or governmental authority.
1.3 "Shares" shall mean: (i) all equity securities of the Company
(including all shares of common stock or preferred stock, and all options,
warrants and other rights to acquire shares of common stock or preferred stock)
beneficially owned by Stockholder as of the date of this Agreement and (ii) all
additional equity securities of the Company (including all additional shares of
common stock or preferred stock, and all additional options, warrants and other
rights
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to acquire shares of common stock or preferred stock) which Stockholder acquires
beneficial ownership of during the period from the date of this Agreement
through the Expiration Time.
1.4 A Person shall be deemed to have effected a "Transfer" of a
security if such Person directly or indirectly: (i) sells, assigns, pledges,
encumbers, grants an option with respect to, transfers or disposes of (by
operation of law or otherwise) such security or any interest in such security
(except that the exercise of an option to purchase Shares by Stockholder shall
not be deemed a Transfer); or (ii) enters into an agreement or commitment
providing for the sale of, assignment of, pledge of, encumbrance of, grant of an
option with respect to, transfer of or disposition of (by operation of law or
otherwise) such security or any interest therein.
2. Transfer and Voting of Shares.
2.1 Transferee of Shares to be Bound by this Agreement.
Stockholder agrees that, during the period from the date of this Agreement
through the Expiration Time, Stockholder shall not direct, cause or permit any
Transfer of any of the Shares to be effected unless the proposed transferee(s)
agrees to be bound to the terms hereof and executes and delivers to Acquiror a
voting agreement and proxy in the exact form of this Agreement prior to the
Transfer. The Company agrees that, during the period from the date of this
Agreement through the Expiration Time, it will not recognize as valid or
otherwise any Transfer or purported Transfer effected in violation of this
Agreement.
2.2 Transfer of Voting Rights. Stockholder agrees that, during the
period from the date of this Agreement through the Expiration Time, Stockholder
shall not deposit (or permit the deposit of) any Shares in a voting trust or
grant any proxy or enter into any voting agreement or similar agreement in
contravention of the obligations of Stockholder under this Agreement with
respect to any of the Shares.
3. Agreement to Vote Shares. Stockholder agrees that, during the period
from the date of this Agreement through the Expiration Time, at every meeting of
the stockholders of the Company called, and at every adjournment thereof, and on
every action or approval by written consent of the stockholders of the Company,
all the Shares beneficially owned by Stockholder shall be voted (i) in favor of
the adoption and approval of the Merger Agreement, the Merger and the other
transactions contemplated thereby, and in favor of any matter that could
reasonably be expected to facilitate the Merger (to the extent that such Shares
have a right to vote thereon), (ii) against any other Acquisition Proposal or
Alternative Transaction, (iii) against any proposal that could reasonably be
expected to (A) impair in any material respect the ability of the Company to
perform its obligations under the Merger Agreement or (B) prevent or materially
delay the consummation of the transactions contemplated by the Merger Agreement,
and (iv) in favor of the approval of the Company's 2001 Employee Stock Purchase
Plan.
4. Stockholder Capacity. Acquiror acknowledges and agrees that Stockholder
executes and delivers this Agreement solely in his capacity as the record holder
and beneficial owner of his Shares and no provision of this Agreement shall
limit or otherwise restrict Stockholder with respect to any act or omission that
Stockholder may undertake or authorize in his capacity as an officer of the
Company or a member of the Board of Directors of the Company, including,
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without limitation, any vote that Stockholder may make in his capacity as a
director of the Company with respect to any matter presented to the Board of
Directors of the Company.
5. Irrevocable Proxy. Concurrently with the execution of this Agreement,
Stockholder shall deliver to Acquiror an originally executed proxy in the form
attached hereto as Schedule A (the "Proxy"), which shall be coupled with an
interest and shall therefore be irrevocable to the fullest extent permissible by
law, with respect to the Shares referred to therein. Stockholder agrees that to
the extent Stockholder acquires additional Shares after the date hereof and
prior to the Expiration Time, Stockholder shall promptly deliver to Acquiror an
originally executed Proxy with respect to such additional Shares.
6. Representations and Warranties of the Stockholder. Stockholder
represents and warrants to Acquiror that Stockholder: (i) is the beneficial
owner of the Shares indicated on the signature page of this Agreement, free and
clear of any liens, claims, options, rights of first refusal, co-sale rights,
charges or other encumbrances, (ii) does not beneficially own any securities of
the Company other than the securities indicated on the signature page of this
Agreement, and (iii) has full power and authority to make, enter into, and carry
out the terms of this Agreement and the Proxy and that the terms of this
Agreement and the Proxy do not conflict with, breach or otherwise violate any
other agreement (or proxy) to which Stockholder is a party.
7. Additional Documents. Stockholder hereby covenants and agrees to
execute and deliver any additional documents necessary or desirable, in the
reasonable opinion of Acquiror, to carry out the intent of this Agreement.
8. Consent and Waiver. Stockholder hereby gives any consents or waivers
that are required for the consummation of the Merger under the terms of any
agreements to which Stockholder is a party or pursuant to any rights Stockholder
may have, in any case only in the Stockholder's capacity as the holder of the
Shares (and specifically excluding, for example, any agreement or rights
Stockholder may have pursuant to any employment or severance agreement).
9. Termination. This Agreement shall terminate and shall have no further
force or effect as of the Expiration Time.
10. Miscellaneous.
10.1 Invalidity of Provisions. Each of the provisions contained in this
Agreement is distinct and severable and a declaration of invalidity or
unenforceability of any such provision or part hereof by a court of competent
jurisdiction shall not affect the validity or enforceability of any other
provision hereof. To the extent permitted by applicable law, the parties hereto
waive any provision of law which renders any provision of this Agreement invalid
or unenforceable in any respect. The parties shall endeavor in good faith
negotiations to replace any provision that is declared invalid or unenforceable
with a valid and enforceable provision, the effect of which comes as close as
possible to that of the invalid or unenforceable provision that it replaces, but
is not more restrictive to Stockholder than the provision declared invalid or
unenforceable.
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10.2 Binding Effect and Assignment. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, heirs and legal or
personal representatives, and shall survive the death or incapacity of
Stockholder; provided, however, except as otherwise specifically provided
herein, neither this Agreement nor any of the rights, interests or obligations
of the parties hereto may be assigned by either of the parties without the prior
written consent of the other.
10.3 Amendments and Modification. This Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by Stockholder and Acquiror. No such modification,
amendment, alteration or supplement shall be binding on the Company without the
Company's written consent.
10.4 Specific Performance; Injunctive Relief. The parties hereto
acknowledge that Acquiror will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreements of
Stockholder set forth herein. Therefore, it is agreed that, in addition to any
other remedies that may be available to Acquiror upon any such violation,
Acquiror shall have the right to enforce such covenants and agreements by
specific performance, injunctive relief or by any other means available to
Acquiror at law or in equity, all without the need to post a bond or other
security.
10.5 Notices. All notices, requests and other communications hereunder
shall be in writing and shall be deemed to have been duly given when actually
received if delivered personally against written receipt, or telecopied with
answer back confirmation, or mailed (postage prepaid by registered mail, return
receipt requested), or sent by overnight courier, to the parties at the
following addresses or facsimile numbers:
If to Acquiror:
Xxxxx Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with a copy to:
Torys LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Cost, Esq.
Facsimile: (000) 000-0000
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If to Stockholder:
At the address and fax number specified on
the signature page of this Agreement
If to Company:
ONTRACK Data International, Inc.
0000 Xxxxxxxxx Xxxx
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
with a copy to:
Robins, Kaplan, Xxxxxx & Xxxxxx L.L.P.
0000 XxXxxxx Xxxxx
000 XxXxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
All such notices, requests and other communications shall (i) if delivered
personally, telecopied or couriered, be deemed given upon delivery and (ii) if
mailed, be deemed given five (5) days after mailing (in each case regardless of
whether such notice, request or other communication is received by any other
Person to whom a copy of such notice, request or other communication is to be
delivered pursuant to this Section). Any party from time to time may change its
address, facsimile number or other information for the purpose of notices to
that party by giving notice specifying such change to the other parties hereto.
10.6 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Minnesota without regard
to applicable principles of conflicts of law.
10.7 Consent to Jurisdiction. Each of the parties hereto
irrevocably and unconditionally submits to the exclusive jurisdiction of (i) any
Minnesota State court and (ii) any Federal court of the United States of America
sitting in the State of Minnesota, for the purposes of any suit, action or other
proceeding arising out of this Agreement or any transaction contemplated hereby
(and each agrees that no such action, suit or proceeding relating to this
Agreement shall be brought by it or any of its affiliates except in such
courts). Each of the parties hereto further agrees that, to the fullest extent
permitted by applicable law, service of any process, summons, notice or document
by registered mail to such persons respective address set forth above shall be
effective service of process for any action, suit or proceeding in Minnesota
with respect to any matters to which it has submitted to jurisdiction as set
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forth in the immediately preceding sentence. Each of the parties hereto
irrevocably and unconditionally waives (and agrees not to plead or claim) any
objection to the laying of venue of any action, suit or proceeding arising out
of this Agreement or the transactions contemplated hereby in (i) any Minnesota
State court or (ii) any Federal court of the United States of America sitting in
the State of Minnesota, or that any such action, suit or proceeding brought in
any such court has been brought in an inconvenient forum.
10.8 Entire Agreement. This Agreement and the Proxy contain the
entire understanding of the parties hereto in respect of the subject matter
hereof, and supersede all prior negotiations and understandings between the
parties with respect to such subject matter.
10.9 Interpretation.
10.9.1 The headings used in this Agreement are for convenience
only and are not to be considered in construing or interpreting this Agreement.
10.9.2 Unless the context otherwise requires, words importing
the singular include the plural and vice versa, and words importing gender
include all genders.
10.9.3 "including" means "including, without limitation,".
10.10 Counterparts. This Agreement may be executed by facsimile
signature and in several counterparts, each of which shall be an original, but
all of which together, when executed and delivered, shall constitute one and the
same agreement.
* * *
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IN WITNESS WHEREOF, the parties have caused this Voting Agreement to be
duly executed on the day and year first above written.
XXXXX INC.
By:
-------------------------------- ------------------------------------
Name: [Stockholder - Print Name]
Title:
By:
---------------------------------
Address:
----------------------------
------------------------------------
------------------------------------
Telecopy No.: ( ) -
--- ----
ONTRACK DATA INTERNATIONAL, INC.
Shares of Company capital stock
By: beneficially owned:
--------------------------------- - shares of common stock.
Name: - no shares of preferred stock.
Title: - shares of common stock
issuable upon exercise of
outstanding options, warrants or
other rights.
- no shares of preferred stock
issuable upon exercise of
outstanding options, warrants or
other rights.
WITNESS:
-----------------------------------
[Name]
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SCHEDULE A
IRREVOCABLE PROXY
The undersigned stockholder of ONTRACK Data International, Inc., a Minnesota
corporation (the "Company"), hereby irrevocably (to the fullest extent permitted
by law) appoints Xxxxxxx Xxxxxxxxx and Xxxxxxx Xxxxx, and each of them, as the
sole and exclusive attorneys-in-fact and proxies of the undersigned, with full
power of substitution and resubstitution, to vote and exercise all voting rights
(to the fullest extent that the undersigned is entitled to do so) with respect
to all of the outstanding shares of capital stock of the Company that are owned
beneficially by the undersigned as of the date of this Proxy (collectively, the
"Shares") only in accordance with the terms of this Proxy. The Shares owned
beneficially by the undersigned stockholder as of the date of this Proxy are
listed on the final page of this Proxy. Upon the undersigned's execution of this
Proxy, any and all prior proxies given by the undersigned with respect to any of
the Shares are hereby revoked and the undersigned agrees not to grant any
subsequent proxies with respect to the voting rights granted by this Proxy until
after the Expiration Time (as defined below).
This Proxy is irrevocable (to the fullest extent permitted by law), is
coupled with an interest in the Company and is granted pursuant to that certain
Voting Agreement of even date herewith by and among Kroll Inc., an Ohio
corporation ("Acquiror"), the undersigned stockholder and the Company and as an
inducement to Acquiror to enter into the Agreement and Plan of Reorganization by
and among Acquiror, ODI Acquisition Corporation, a Minnesota corporation, and
the Company dated as of even date herewith (as amended, modified or supplemented
in accordance with its terms, the "Merger Agreement") which provides for the
acquisition of the Company by Acquiror, subject to certain conditions, through a
merger whereby holders of the outstanding shares of common stock of the Company
will be entitled to receive shares of Acquiror common stock as provided in the
Merger Agreement. As used herein, the term "Expiration Time" shall mean the
earlier to occur of (i) the termination of the Merger Agreement in accordance
with its terms and (ii) the Effective Time of the Merger (as such terms are
defined in the Merger Agreement).
The attorneys-in-fact and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Time, to act as the undersigned's attorney-in-fact and proxy to vote the Shares,
and to exercise all voting, consent and similar rights of the undersigned with
respect to the Shares (including, without limitation, the power to execute and
deliver written consents), at every annual, special or adjourned meeting of
stockholders of the Company and in every written consent in lieu of such meeting
(i) in favor of the adoption and approval of the Merger Agreement, the Merger
(as defined in the Merger Agreement) and the other transactions contemplated
thereby, and in favor of any matter that could reasonably be expected to
facilitate the Merger (to the extent that the Shares have a right to vote
thereon), (ii) against any other Acquisition Proposal or Alternative Transaction
(as such terms are defined in the Merger Agreement, (iii) against any proposal
that could reasonably be expected to (A) impair in any material respect the
ability of the Company to perform its obligations under the Merger Agreement or
(B) prevent or materially delay the consummation of
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the transactions contemplated by the Merger Agreement, and (iv) in favor of the
approval of the Company's 2001 Employee Stock Purchase Plan).
Any obligation of the undersigned hereunder shall be binding upon the
successors, heirs and legal or personal representatives of the undersigned, and
shall survive the death or incapacity of the undersigned.
This Proxy shall terminate, and be of no further force and effect, automatically
at the Expiration Time.
* * *
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Dated: April 1, 2002
___________________________________________
[Stockholder _ Print Name]
By:________________________________________
Shares of Company capital stock
beneficially owned and subject to this
Proxy:
_ __________ shares of common stock.
_ no shares of preferred stock.
_ __________ shares of common stock
issuable upon exercise of outstanding
options, warrants or other rights.
_ no shares of preferred stock issuable
upon exercise of outstanding options,
warrants or other rights.
WITNESS:
___________________________________________
[Name]
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