Execution Copy
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and entered into as
of April 18, 2003, by and among Tiger Holding Corporation, a Delaware
corporation ("Parent"), and those certain stockholders set forth on the
signature pages hereto (each individually, a "Stockholder" and
collectively, the "Stockholders") of Tanning Technology Corporation, a
Delaware corporation (the "Company").
RECITALS
A. Concurrently with the execution of this Agreement, Parent, Tiger
Merger Corporation, a Delaware corporation and wholly owned subsidiary of
Parent ("Merger Subsidiary"), and the Company are entering into an
Agreement and Plan of Merger of even date herewith (the "Merger Agreement")
pursuant to which Merger Subsidiary will merge with and into the Company
(the "Merger"). Capitalized terms that are used in this Agreement and are
not otherwise defined herein will have the same meanings that such terms
have in the Merger Agreement.
B. As of the date hereof, each Stockholder is the beneficial owner (as
defined in Rule 13d-3 promulgated under the 0000 Xxx) with respect to, in
the aggregate, such number of Shares (as defined herein) listed opposite
such Stockholder's name on Schedule A attached hereto.
C. Each Stockholder is entering into this Agreement as a material
inducement and consideration to Parent to enter into the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto hereby agree as follows:
1. Definitions.
(a) "Expiration Date" means the earlier to occur of (i) the
Effective Time and (ii) the termination of the Merger Agreement in
accordance with its terms.
(b) "Shares" means all issued and outstanding shares of Company
Stock owned beneficially (as defined in Rule 13d-3 promulgated under the
0000 Xxx) by each Stockholder, in each case, on the date hereof; provided,
however, that any and all other shares of capital stock of the Company with
respect to which such Stockholder becomes the record or beneficial owner or
over which such Stockholder otherwise exercises voting power after the
execution of this Agreement and prior to the Expiration Date, including,
without limitation, in the event of a dividend or distribution of capital
stock of the Company, or any change in the Company's capital stock or the
like, all shares of the Company's capital stock issued or distributed
pursuant to such stock dividends and distributions and any shares of the
Company's capital stock into which or for which any or all of the shares
otherwise held by such Stockholder may be so changed or exchanged, shall be
subject to the terms and conditions of this Agreement to the same extent as
if they constituted Shares on the date hereof.
(c) "Transfer" with respect to any security means to directly or
indirectly: (i) sell, assign, pledge, encumber, transfer or dispose of, or
grant an option with respect to, such security or any interest in such
security; or (ii) enter into an agreement or commitment providing for the
sale, assignment pledge, encumbrance, transfer or disposition of, or grant
of an option with respect to, such security or any interest therein.
2. Agreement to Vote.
2.1 Voting Agreement. Each Stockholder hereby covenants and
agrees that, prior to the Expiration Date, at any meeting (whether annual
or special and whether or not an adjourned or postponed meeting) of the
stockholders of the Company, however called, unless otherwise directed in
writing by Parent, each Stockholder will appear at the meeting or otherwise
cause such Stockholder's Shares to be counted as present thereat for
purposes of establishing a quorum and vote or cause to be voted the Shares:
(a) in favor of the adoption of the Merger Agreement;
(b) to the extent a vote is solicited in connection with the
approval of any action, agreement or proposal that would result in a breach
of any representation, warranty, covenant or obligation of the Company in
the Merger Agreement or that would delay or hinder the consummation of the
Merger or that would preclude fulfillment of a condition precedent under
the Merger Agreement to the Company's, Parent's or Merger Subsidiary's
obligation to consummate the Merger, against the approval of such action,
agreement or proposal; and
(c) against approval of any action, agreement or proposal made in
opposition to or in competition with the consummation of the Merger, or
that would preclude the consummation of the Merger, including, without
limitation, any Acquisition Proposal.
2.2 Irrevocable Proxy. Contemporaneously with the execution of
this Agreement, each Stockholder will deliver to Parent a proxy with
respect to such Stockholder's Shares in the form attached hereto as Exhibit
1, which proxy will be irrevocable to the fullest extent permitted by
applicable Law (the "Proxy"); except that the Proxy shall be automatically
revoked and of no further force and effect upon termination of this
Agreement in accordance with its terms.
2.3 Transfer and Other Restrictions.
(a) From and after the date hereof until the termination of this
Agreement, each Stockholder agrees not to, directly or indirectly:
(i) except pursuant to the terms of the Merger Agreement,
Transfer any or all of the Shares;
(ii) grant any proxy, power of attorney, deposit any Shares into
a voting trust or enter into a voting agreement or arrangement with respect
to the Shares except as provided in this Agreement; or
(iii) take any other action that would make any representation or
warranty of such Stockholder contained herein untrue or incorrect or have
the effect of preventing or disabling such Stockholder from performing its
obligations under this Agreement.
(b) To the extent that any Stockholder is, as of the date hereof,
party to a contract or agreement that requires such Stockholder to Transfer
Shares to another person or entity (excluding a contract or agreement
pledging Shares to the Company), such Stockholder will not effect any such
Transfer unless, prior to such Transfer, such Stockholder causes the
transferee to be bound by and to execute an agreement in the form of this
Agreement with respect to the Shares to be Transferred.
(c) Each Stockholder agrees with, and covenants to, Parent that
such Stockholder shall not request that the Company register the Transfer
(book-entry or otherwise) of any certificate or uncertificated interest
representing any Shares, unless such Transfer is made pursuant to and in
compliance with this Agreement.
(d) The foregoing restrictions shall not prohibit a Transfer of
Shares (i) in the case of an individual, to any member of his or her
immediate family, to a trust for the benefit of such Stockholder or any
member of his or her immediate family or a Transfer of Shares upon the
death of any Stockholder or (ii) in the case of a partnership or limited
liability company, to one or more partners or members or to an affiliated
entity; provided, however, that in each such case, (x) such Transfer is for
no consideration of any kind and (y) any transferee shall, as a condition
to such Transfer, agree in a writing delivered to Parent, to be bound by
the terms and conditions of this Agreement and execute and deliver to
Parent a proxy in the form attached hereto.
3. Waivers. Each Stockholder agrees not to exercise any rights of
appraisal and any dissenters' rights that such Stockholder may have
(whether under applicable Law or otherwise) or could potentially have or
acquire in connection with the Merger.
4. Representations, Warranties and Covenants of Stockholder. Each
Stockholder hereby represents, warrants and covenants to Parent severally,
and not jointly, as follows:
4.1 Authority, Enforceability. Such Stockholder has the power and
authority to enter into, execute, deliver and perform such Stockholder's
obligations under this Agreement and to make the representations,
warranties and covenants made by such Stockholder herein. This Agreement
has been duly executed and delivered by such Stockholder and constitutes a
legal, valid and binding obligation of such Stockholder, enforceable
against such Stockholder in accordance with its 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.
4.2 No Conflicts, No Defaults and Consents. The execution and
delivery of this Agreement by such Stockholder does not, and the
performance of this Agreement by such Stockholder will not: (i) conflict
with or violate any order, decree or judgment applicable to such
Stockholder or by which such Stockholder or any of such Stockholder's
properties or Shares is bound or affected; (ii) conflict with or violate
any agreement to which such Stockholder is a party or is subject,
including, without limitation, any voting agreement or voting trust; (iii)
result in any breach of or constitute a default (with notice or lapse of
time, or both) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of
any lien, restriction, adverse claim, option on, right to acquire, or any
encumbrance or security interest in or to such Stockholder's Shares,
pursuant to any agreement, contract or legally binding commitment to which
such Stockholder is a party or by which such Stockholder or any of such
Stockholder's Shares is bound or affected, or (iv) require any agreement,
contract or legally binding commitment of any third party.
4.3 Shares Owned. As of the date hereof, such Stockholder is the
record owner with respect to, in the aggregate, the number of shares of
Company Stock listed opposite such Stockholder's name on Schedule A, and
does not beneficially own or otherwise have the power to direct the voting
with respect to, any shares of capital stock of the Company other than the
Shares listed on Schedule A. Such Stockholder has sole voting power with
respect to the number of shares of Company Stock listed opposite such
Stockholder's name on Schedule A.
4.4 No Restraint on Officer or Director Action. Notwithstanding
anything herein to the contrary, no person executing this Agreement who is,
or becomes during the term hereof, a director or an officer of the Company
makes any agreement, understanding or undertaking herein in his or her
capacity as a director or officer, and the agreements set forth herein
shall in no way restrict any director or officer in the exercise of his or
her fiduciary duties as a director or officer of the Company. Each
Stockholder has executed this Agreement solely in his, her or its capacity
as the record owner of such Stockholder's Shares.
4.5 Limited Proxy. Each Stockholder will retain at all times the
right to vote such Stockholder's Shares, in such Stockholder's sole
discretion, on all matters other than those set forth in Section 2.1 which
are at any time or from time to time presented to the Company's
stockholders generally.
5. Miscellaneous.
5.1 Severability. If any provision of this Agreement is found by
any court of competent jurisdiction to be invalid or unenforceable, then
the parties hereby waive such provision to the extent that it is found to
be invalid or unenforceable and to the extent that to do so would not
deprive one of the parties of the substantial benefit of its bargain. Such
provision will, to the extent allowable by Law and the preceding sentence,
not be voided or canceled but will instead be modified by such arbitrator
or court so that it becomes enforceable and, as modified, will be enforced
as any other provision hereof, all the other provisions hereof continuing
in full force and effect.
5.2 Amendment; Waiver. This Agreement may be amended, modified,
superseded, canceled, renewed, or extended only by an agreement in writing
executed by Parent and each Stockholder. The failure by any party at any
time to require performance or compliance by another party of any of its
obligations or agreements will in no way affect the right to require such
performance or compliance at any time thereafter. No waiver of any kind
will be effective or binding, unless it is in writing and is signed by the
party against whom such waiver is sought to be enforced.
5.3 Entire Agreement; No Third Party Beneficiaries. This
Agreement, together with the Merger Agreement, constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and
oral, among the parties with respect to the subject matter hereof, and are
not intended to convey upon any person other than Parent and each
Stockholder any rights or remedies hereunder.
5.4 Assignment. This Agreement and all rights and obligations
hereunder are personal to each Stockholder and may not be transferred or
assigned by any Stockholder at any time. Parent may assign its rights, and
may delegate its obligations hereunder, to any Subsidiary of Parent;
provided, however, that any such assignee assumes the obligations of Parent
hereunder. This Agreement will be binding upon, and inure to the benefit
of, the persons or entities who are permitted, by the terms of this
Agreement, to be successors, assigns and personal representatives of the
respective parties hereto.
5.5 Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the State of Delaware, whether
common law or statutory, without reference to the choice of law provisions
thereof.
5.6 Notices. All notices required or permitted pursuant to this
Agreement will be in writing and will be deemed to be properly given when
actually received by the person entitled to receive the notice at the
address stated below, or at such other address as a party may provide by
notice to the other:
If to Parent:
Tiger Holding Corporation
c/o Platinum Equity LLC
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxx X. Xxxxxxxx
With a copy to:
Xxxxxxx & XxXxxxxx
000 Xxxxx Xxxxxxxxx, 00xx Xxxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxx X. Loss
If to the Stockholders:
At the address listed on Schedule A.
With a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxxxx Xxxx
5.7 Specific Performance. The parties hereby acknowledge and
agree that the failure of any party to perform its agreements and covenants
hereunder, including its failure to take all actions as are necessary on
its part to the consummation of the Merger, will cause irreparable injury
to the other parties for which damages, even if available, will not be an
adequate remedy. Accordingly, each party hereby consents to the issuance of
injunctive relief by any court of competent jurisdiction to compel
performance of such party's obligations and to the granting by any court of
the remedy of specific performance of its obligations hereunder.
5.8 Counterparts. This Agreement may be executed in counterparts,
each of which will be deemed an original, but all of which, taken together,
constitute one and the same agreement.
5.9 Titles. The titles and captions of the sections and
paragraphs of this Agreement are included for convenience of reference only
and will have no effect on the construction or meaning of this Agreement.
5.10 Termination. This Agreement will be terminated and will be
of no further force and effect upon the Expiration Date.
5.11 Nonsurvival of Representations and Warranties. None of the
representations and warranties in this Agreement or in any schedule,
instrument or other document delivered pursuant to this Agreement shall
survive the Expiration Date.
IN WITNESS WHEREOF, the undersigned parties have executed this
Agreement as of the date first above written.
TIGER HOLDING CORPORATION
By: /s/ Xxx Xxxxxxxx
--------------------------------------
Name: Xxx Xxxxxxxx
Title: Vice President and
Secretary
TTC INVESTORS I LLC
By: AEA Tanning Investors Inc.
its member
By: /s/ Xxxxxxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
TTC INVESTORS II LLC
By: AEA Tanning Investors Inc.
its member
By: /s/ Xxxxxxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
TTC INVESTORS IA LLC
By: AEA Tanning Investors Inc.
its member
By: /s/ Xxxxxxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
TTC INVESTORS IIA LLC
By: AEA Tanning Investors Inc.
its member
By: /s/ Xxxxxxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
TANNING FAMILY PARTNERSHIP, L.L.L.P.
By: Xxxxxxxx Xxxx Corporation,
its General Partner
By: /s/ Xxxxx X. Tanning
--------------------------------
Name: Xxxxx X. Tanning
Title: President
/s/ Xxxxx X. Tanning
-----------------------------------------
Xxxxx X. Tanning
EXHIBIT 1 TO VOTING AGREEMENT
-----------------------------
IRREVOCABLE PROXY
The undersigned stockholder (the "Stockholder") of Tanning Technology
Corporation, a Delaware corporation, (the "Company") hereby irrevocably (to
the fullest extent permitted by applicable law) appoints and constitutes
those officers of Tiger Holding Corporation, a Delaware corporation
("Parent") designated by Parent in writing and each of them (collectively,
the "Proxyholders"), the agents, attorneys and proxies of the undersigned,
with full power of substitution and resubstitution, to the fullest extent
of the undersigned's rights with respect to (i) the shares of capital stock
of the Company held of record by the undersigned as of the date of this
proxy, which shares are specified on Schedule A to the Voting Agreement (as
defined in the Voting Agreement dated as of the date hereof, between Parent
and the undersigned (the "Voting Agreement"); and (ii) any and all other
shares of capital stock of the Company with respect to which the
undersigned shall become the record or beneficial owner or over which the
undersigned shall otherwise exercise voting power after the date hereof,
including, without limitation, in the event of a dividend or distribution
of capital stock of the Company, or any change in the Company's capital
stock by reason of any stock dividend, split-up, recapitalization,
combination, exchange of shares or the like, all shares of the Company's
capital stock issued or distributed pursuant to such stock dividends and
distributions and any shares of the Company's capital stock into which or
for which any or all of the shares otherwise held by the undersigned may be
so changed or exchanged. (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 undersigned with respect to any of the
Shares are hereby revoked, and no subsequent proxies will be given with
respect to any of the Shares until such time as this proxy shall be
terminated in accordance with its terms.
The Proxyholders named above will be empowered, and may exercise this
proxy, to vote the Shares at any time until the Expiration Date (as defined
in the Voting Agreement) at any meeting of the shareholders of the Company,
however called, or in any action by written consent of shareholders of the
Company with respect to the following matters and only the following
matters:
(i) in favor of the adoption of the Agreement and Plan of Merger
by and among Parent, Tiger Merger Corporation, a Delaware corporation and a
wholly owned subsidiary of Parent ("Merger Subsidiary"), and the Company,
dated as of the date hereof (the "Merger Agreement");
(ii) against approval of any action, agreement or proposal that
would result in a breach of any representation, warranty, covenant or
obligation of the Company in the Merger Agreement or that would delay or
hinder the consummation of the Merger or that would preclude fulfillment of
a condition precedent under the Merger Agreement to the Company's, Parent's
or Merger Subsidiary's obligation to consummate the Merger; and
(iii) against approval of any action, agreement or proposal made
in opposition to or in competition with the consummation of the Merger, or
that would preclude the consummation of the Merger, including, without
limitation, any Acquisition Proposal (as defined in the Merger Agreement).
The Proxyholders may not exercise this proxy on any other matter. The
Stockholder may vote the Shares on all such other matters. The proxy
granted by the Stockholder to the Proxyholders hereby is granted as of the
date of this Irrevocable Proxy in order to secure the obligations of the
Stockholder set forth in Section 2 of the Voting Agreement.
This proxy will terminate upon the Expiration Date. Any obligation of
the undersigned hereunder shall be binding upon the successors and assigns
of the undersigned. The undersigned Stockholder authorizes the Proxyholders
to file this proxy and any substitution or revocation of substitution with
the Secretary of the Company and with any Inspector of Elections at any
meeting of the shareholders of the Company.
This proxy is irrevocable, is coupled with an interest, and shall
survive the insolvency, incapacity, death or liquidation of the undersigned
and will be binding upon the heirs, successors and assigns of the
undersigned (including any transferee of any of the Shares).
Dated: April o, 2003
SHAREHOLDER
By:
------------------------------------
SCHEDULE A
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NAME ADDRESS # OF SHARES
===========================================================================
TTC Investors I LLC c/o AEA Investors LLC
Xxxx Xxxxxx Xxxxx
00 Xxxx 00xx Xxxxxx 984,237
Xxx Xxxx, Xxx Xxxx 00000
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TTC Investors II LLC c/o AEA Investors LLC
Xxxx Xxxxxx Xxxxx
00 Xxxx 00xx Xxxxxx 4,143,022
Xxx Xxxx, Xxx Xxxx 00000
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TTC Investors IA LLC c/o AEA Investors LLC
Xxxx Xxxxxx Xxxxx
00 Xxxx 00xx Xxxxxx 108,986
Xxx Xxxx, Xxx Xxxx 00000
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TTC Investors IIA LLC c/o AEA Investors LLC
Xxxx Xxxxxx Xxxxx
00 Xxxx 00xx Xxxxxx 460,524
Xxx Xxxx, Xxx Xxxx 00000
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Tanning Family c/o Tanning Technology
Partnership, L.L.L.P. Corporation
0000 Xxxxx Xxxxxxxx Xxxxxx, 2,887,647
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
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Xxxxx X. Tanning c/o Tanning Technology
Corporation
0000 Xxxxx Xxxxxxxx Xxxxxx, 200,362
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
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