FORM OF VOTING AGREEMENT
Exhibit
99.2
FORM
OF VOTING AGREEMENT
This
Voting Agreement (“Agreement”) is made and entered into as of December
10, 2007, by and among JDS Uniphase Corporation, a Delaware corporation
(“Parent”), Light Acquisition Corp., a Delaware corporation and a
wholly-owned subsidiary of Parent (“Purchaser”), and the undersigned
stockholder (the “Stockholder”) of American Bank Note Holographics, Inc.,
a Delaware corporation (the “Company”). Certain capitalized
terms used in this Agreement are defined in Section 7 hereof and certain
other
capitalized terms used in this Agreement that are not defined herein shall
have
the meaning given to such terms in the Merger Agreement (as defined
below).
RECITALS
WHEREAS,
Stockholder is the holder of record and the “beneficial owner” (within the
meaning of Rule 13d-3 under the Securities Exchange Act of 1934) of certain
common stock of the Company;
WHEREAS,
concurrently with the execution and delivery of this Agreement, Parent,
Purchaser and the Company are entering into an Agreement and Plan of Merger
(the
“Merger Agreement”) which provides, upon the
terms and subject to the conditions set forth therein, for the merger of
Purchaser with and into the Company (the “Merger”); and
WHEREAS,
as a condition and inducement to Parent’s willingness to enter into the Merger
Agreement, the Stockholder has agreed to execute and deliver this
Agreement.
AGREEMENT
NOW,
THEREFORE, the parties to this Agreement, intending to be legally
bound, agree as follows:
1. Agreement
to Vote Shares. Prior to the Termination Date, at every
meeting of the stockholders of the Company (or of the holders of any class
of
stock of the Company’s capital stock) called with respect to any of the
following, and at every adjournment or postponement thereof, with respect
to any
of the following, the Stockholder shall vote with respect to the Subject
Securities: (a) in favor of adoption of the Merger Agreement and
approval of the Merger and the other actions contemplated by the Merger
Agreement or would reasonably be expected to facilitate the Merger Agreement,
the Merger and the other actions and transactions contemplated by the Merger
Agreement, this Agreement or the Proxy (the “Merger Proposals”),
(b) against any Acquisition Proposal between the Company and any Person
other than Parent or Purchaser and (c) against any other action, agreement
or
proposal that could reasonably be expected to result in any of the conditions
to
the consummation of the Merger under the Merger Agreement not being fulfilled
or
which could reasonably be expected to otherwise impede, interfere with, delay,
postpone or materially adversely affect the Merger or the other transactions
contemplated by the Merger Agreement.
2. Irrevocable
Proxy. Concurrently with the execution of this Agreement,
the Stockholder agrees to deliver to Parent a proxy in the form attached
hereto
as Exhibit A (the “Proxy”), which is coupled with an interest and
shall be irrevocable to the fullest extent permitted by law, with respect
to the
shares referred to therein, which Proxy shall remain in effect until the
Termination Date.
3. Agreement
to Retain Shares.
(a) Restriction
on Transfer. Except pursuant to the terms of the Merger
Agreement or otherwise provided in Section 3(c) of this Agreement, during
the
period from the date of this Agreement through the Termination Date, the
Stockholder shall not, directly or indirectly, cause or permit any Transfer
of
any of the Subject Securities to be effected. Any Transfer of
any Subject Securities in violation of this Section 3 shall be void and have
no
force or effect.
(b) Restriction
on Transfer of Voting Rights. During the period from the
date of this Agreement through the Termination Date, the Stockholder shall
not: (a) grant any proxy or power of attorney, deposit any of the
Subject Securities into a voting trust or enter into a voting agreement or
similar arrangement with respect to the Subject Securities except as provided
in
this Agreement; or (b) take any other action that would make any representation
or warranty of the Stockholder contained herein untrue or incorrect or have
the
effect of preventing or disabling the Stockholder from performing its
obligations under this Agreement, the Merger Agreement and the other documents
contemplated hereby and thereby respectively.
(c) Permitted
Transfers. Section 3(a) shall not prohibit a Transfer of
Subject Securities by the Stockholder upon the death of the Stockholder;
provided, however, that a Transfer referred to in this sentence shall
be permitted only if, as a precondition to such Transfer, the transferee
(i)
agrees in a writing, reasonably satisfactory in form and substance to Parent,
to
be bound by the terms of this Agreement and refrain from any and all Transfers
of the Subject Securities, and (ii) delivers a Proxy to Parent in substantially
the form of Exhibit A.
4. Representations,
Warranties and Covenants of Stockholder. The Stockholder
hereby represents and warrants to Parent as follows:
(a) Due
Authorization, Etc. All consents, approvals, authorizations,
filings and orders necessary for the execution and delivery by the
Stockholder of this Agreement and the Proxy have been obtained or made, and
the
Stockholder has legal capacity, power and authority to enter into this Agreement
and the Proxy. This Agreement and the Proxy have been duly and
validly executed and delivered by the Stockholder and constitute valid and
binding agreements or instruments of the Stockholder enforceable in accordance
with their terms, except as the same may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws now or hereafter in effect relating
to creditors’ rights generally and subject to general principles of
equity.
(b) No
Conflict. The execution and delivery of this Agreement and
the Proxy by the Stockholder do not, and the performance of this Agreement
and
the Proxy by the Stockholder will not conflict with, violate or result in
a
breach of or constitute (with or without notice or the passage of time) a
default (or give
rise
to any third party right of termination, cancellation, material modification
or
acceleration) under (i) the organizational documents of the Stockholder,
if any,
(ii) any law, rule, regulation, order, decree or judgment applicable to the
Stockholder, the Subject Securities held by the Stockholder or any of the
Stockholder’s other properties or assets or (iii) any contract, indenture,
guarantee, lease, mortgage, license or other agreement, instrument, obligation
or undertaking of any kind to which Stockholder is a party or by which the
Stockholder or any of its properties or assets are bound.
(c) Title
to Securities. As of the date of this Agreement: (a) the
Stockholder holds of record the outstanding Company Common Stock set forth
under
the heading “Stock Held of Record” on the signature page hereof; (b) the
Stockholder holds the options and other rights to acquire shares of Company
Common Stock set forth under the heading “Options and Other Rights” on the
signature page hereof; (c) the Stockholder Owns the additional securities
of the
Company set forth under the heading “Additional Securities Beneficially Owned”
on the signature page hereof; and (d) the Stockholder does not directly or
indirectly Own any capital stock or other securities of the Company, or any
option, warrant or other right to acquire (by purchase, conversion or otherwise)
any capital stock or other securities of the Company, other than the stock
and
options, warrants and other rights set forth on the signature page
hereof. The Stockholder has voting power and power to issue
instructions with respect to the matters set forth herein, power of disposition,
power of conversion, power to demand appraisal rights and power to agree
to all
of the matters set forth in this Agreement, in each case with respect to
all of
the Subject Securities with no limitations, qualifications or restrictions
on
such rights. Except as permitted by this Agreement the Subject
Securities are now and, at all times during the term hereof, the Subject
Securities will be, held by the Stockholder or by a nominee or custodian
for the
benefit of the 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.
(d) Community
Property.The Stockholder either (i) is not, and will not be during the
term of this Agreement, subject to community property laws or (ii) has delivered
a Community Property Waiver in the form of Exhibit B hereto with respect
to each person who has or who may acquire community property rights in any
of
the Subject Securities.
(e) Reliance
by Parent. The Stockholder understands and acknowledges that
Parent is entering into the Merger Agreement in reliance upon the Stockholder’s
execution and delivery of this Agreement.
(f) Stop
Transfer. The Stockholder hereby agrees and covenants that
it will not request that the Company register the transfer of any certificate
or
uncertificated interest representing any of the Subject Securities, unless
such
transfer is made in compliance with this Agreement. 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 stock or the like other than pursuant to the Merger, the term “Subject
Securities” will be deemed to refer to and include the Company Common Stock as
well as all such stock dividends and distributions and any stock into which
or
for which any or all of the Subject Securities may be changed or exchanged
and
appropriate adjustments shall be made to the terms and provisions of this
Agreement.
5. Further
Assurances. From time to time and without additional
consideration, the Stockholder shall (at the Stockholder’s sole expense) execute
and deliver, or cause to be executed and delivered, such additional transfers,
assignments, endorsements, proxies, consents and other instruments, and shall
(at the Stockholder’s sole expense) take such further actions, as Parent may
request for the purpose of carrying out and furthering the intent of this
Agreement.
6. Fiduciary
Duties. This Agreement is intended to bind the Stockholder
only in his, her or its capacity as a stockholder of the Company and shall
not
prohibit the Stockholder from acting in his, her or its capacity as an officer
or director of the Company in the manner required by the Stockholder’s fiduciary
duties as an officer or director of the Company.
7. Certain
Definitions. For purposes of this Agreement,
(a) “Company
Common Stock”
means the common stock, par value $0.01 per share, of the Company.
(b) The
Stockholder shall be deemed to “Own”
or to have acquired “Ownership”
of a security if the Stockholder is the “beneficial
owner”
of such security within the meaning of Rule 13d-3 under the Securities Exchange
Act of 1934, as amended (the “Exchange
Act”).
(c) “Person”
means any (i) individual, (ii) corporation, limited liability company,
partnership or other entity or (iii) Governmental Entity.
(d) “Subject
Securities”
means: (i) all securities of the Company (including all Company Common Stock
and
all options, warrants and other rights to acquire Company Common Stock) Owned
by
the Stockholder as of the date of this Agreement, whether vested or unvested;
and (ii) all additional securities of the Company (including all additional
Company Common Stock and all additional options, warrants and other rights
to
acquire Company Common Stock), whether vested or unvested, of which the
Stockholder acquires Ownership (regardless of the method by which Stockholders
acquire Ownership) during the period from the date of this Agreement through
the
Termination Date.
(e) “Termination
Date”
means the earlier to occur of the date (i) the Merger shall become effective
in
accordance with the terms and provisions of the Merger
Agreement, (ii) the Merger Agreement terminates in accordance with
its terms or (iii) upon mutual written agreement of the parties hereto to
terminate this Agreement.
(f) A
Person shall be deemed to have effected a “Transfer”
of a security if such Person directly or indirectly: (i) sells, pledges,
assigns, encumbers, transfers or disposes of, or grants an option, contract
or
other arrangement or understanding with respect to such security or any interest
in such security to any Person other than Parent; (ii) consents to or enters
into an agreement or commitment contemplating the offer for sale or sale,
pledge, assignment, encumbrance, transfer or disposition of, or grant of
an
option, contract or other arrangement or understanding with respect to, such
security or any interest therein to any Person other than Parent or Purchaser;
(iii) reduces such Person’s
beneficial ownership of, interest in or risk relating to such security other
than in connection with the Merger or (iv) offers to do any of the
foregoing.
8. Miscellaneous.
(a) Assignment;
Binding Effect. Except as provided herein, neither this
Agreement nor any of the interests or obligations hereunder may be assigned
or
delegated by the Stockholder, and any attempted or purported assignment or
delegation of any of such interests or obligations shall be
void. Subject to the preceding sentence, this Agreement shall be
binding upon the Stockholder and the Stockholder’s
heirs, estate, executors and personal representatives and the Stockholder’s
successors and assigns, and shall inure to the benefit of Parent and its
successors and assigns. Without limiting any of the restrictions set
forth in Section 3(a) or elsewhere in this Agreement, this Agreement shall
be
binding upon any Person to whom any Subject Securities are
transferred. Nothing in this Agreement is intended to confer on any
Person (other than Parent and its successors and assigns) any rights or remedies
of any nature.
(b) Specific
Performance. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement or the Proxy
were not performed in accordance with its specific terms or were otherwise
breached and in the event of any breach or threatened breach by the Stockholder
of any covenant or obligation contained in this Agreement or in the Proxy,
Parent shall be entitled (in addition to any other remedy that may be available
to it, including monetary damages) to seek (a) a decree or order of specific
performance to enforce the observance and performance of such covenant or
obligation, and (b) an injunction restraining such breach or threatened
breach.
(c) Waiver;
Remedies Cumulative. No failure on the part of Parent to
exercise any power, right, privilege or remedy under this Agreement, and
no
delay on the part of Parent in exercising any power, right, privilege or
remedy
under this Agreement, shall operate as a waiver of such power, right, privilege
or remedy; and no single or partial exercise of any such power, right, privilege
or remedy shall preclude any other or further exercise thereof or of any
other
power, right, privilege or remedy. Parent shall not be deemed to have
waived any claim available to Parent arising out of this Agreement, or any
power, right, privilege or remedy of Parent under this Agreement, unless
the
waiver of such claim, power, right, privilege or remedy is expressly set
forth
in a written instrument duly executed and delivered on behalf of Parent;
and any
such waiver shall not be applicable or have any effect except in the specific
instance in which it is given. All rights and remedies existing under this
Agreement are cumulative to, and not exclusive to, and not exclusive of,
any
rights or remedies otherwise available.
(d) Governing
Law. This Agreement and all acts and transactions pursuant
hereto and the rights and obligations of the parties hereto shall be governed,
construed and interpreted in accordance with the laws of the State of Delaware
without giving effect to principles of conflicts or choice of law.
(e) Counterparts. This
Agreement may be executed in two or more counterparts (including by facsimile),
each of which shall be deemed an original and all of which together shall
constitute one instrument.
(f) Entire
Agreement. This Agreement and the Proxy constitute the
entire agreement between the parties with respect to the subject matter hereof
and supersede all prior agreements and understandings between the parties
with
respect thereto. No addition to or modification of any provision of
this Agreement shall be binding upon any party unless made in writing and
signed
by the party against whom enforcement is sought.
(g) Notices. Any
notice required or permitted by this Agreement shall be in writing and shall
be
deemed sufficient upon receipt, when delivered personally or by courier,
overnight delivery service or confirmed facsimile, or forty-eight (48) hours
after being deposited in the regular mail as certified or registered mail
(airmail if sent internationally) with postage prepaid, if such notice is
addressed to the party to be notified at such party’s
address or facsimile number as set forth below, or as subsequently modified
by
written notice.
(h) Severability. In
the event that any provision of this Agreement or the application thereof,
becomes or is declared by a court of competent jurisdiction to be illegal,
void
or unenforceable, the remainder of this Agreement will continue in full force
and effect and the application of such provision to other Persons or
circumstances will be interpreted so as reasonably to effect the intent of
the
parties hereto. The parties hereto further agree to replace such void
or unenforceable provision of this Agreement with a valid and enforceable
provision that will achieve, to the extent possible, the economic, business
and
other purposes of such void or unenforceable provision.
(i) Waiver
of Jury Trial. EACH OF PARENT, PURCHASER AND THE STOCKHOLDER
HEREBY IRREVOCABLY WAIVE AND COVENANT THAT THEY WILL NOT ASSERT THE RIGHT
TO A
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED IN
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS
AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENT OR ACTION
RELATED HERETO OR THERETO.
(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.
The
parties have caused this Agreement to be duly executed on the date first
above
written.
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PARENT:
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JDS
UNIPHASE CORPORATION
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By:
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Name:
Xxxxxxxxxxx X. Xxxxxx
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Title:
Senior Vice President, Corporate
Development
and Chief Legal Officer
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Address
for notices:
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JDS
Uniphase Corporation
000
Xxxxx XxXxxxxx Xxxxxxxxx
Xxxxxxxx,
XX 00000
Attn: Office
of the Chief Legal Officer
Facsimile: (000)
000-0000
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PURCHASER:
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LIGHT
ACQUISITION CORP.
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By:
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Name:
Xxxxxxxxxxx X. Xxxxxx
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Title: President
and Secretary
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Address
for notices:
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JDS
Uniphase Corporation
000
Xxxxx XxXxxxxx Xxxxxxxxx
Xxxxxxxx,
XX 00000
Attn: Office
of the Chief Legal Officer
Facsimile: (000)
000-0000
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[SIGNATURE
PAGE TO VOTING AGREEMENT]
STOCKHOLDER:
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By:
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Name:
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Title:
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Address
for notices:
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Company
Common Stock
Held of Record |
Options
and Other Rights
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Additional
Securities
Beneficially Owned |
EXHIBIT
A
IRREVOCABLE
PROXY
The
undersigned stockholder (the “Stockholder”) of American Bank Note
Holographics, Inc., a Delaware corporation (the “Company”), hereby
irrevocably appoints each of Xxxxxxxxxxx X. Xxxxxx and Xxxxx X. Xxxxxxxxxxx,
as
the sole and exclusive attorneys and proxies of the undersigned, with full
power
of substitution and resubstitution, to vote and exercise all voting and related
rights expressly provided herein (to the full extent that the undersigned
is
entitled to do so) with respect to (i) the outstanding capital stock of the
Company owned of record by the Stockholder as of the date of this Proxy,
which
shares are specified on the final page of this Proxy, and (ii) any and all
other
capital stock of the Company which the Stockholder may acquire on or after
the
date hereof. 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 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 Shares.
This
Proxy is irrevocable, is coupled with an interest and is granted pursuant
to
that certain Voting Agreement of even date herewith, by and among JDS Uniphase
Corporation, a Delaware corporation (“Parent”),
Light Acquisition Corp., a Delaware corporation (“Purchaser”)
and the Stockholder, and is granted in consideration of Parent entering into
that certain Agreement and Plan of Merger (the “Merger
Agreement”),
of even date herewith, by and among the Company, Parent and
Purchaser. As used herein, the term “Termination
Date”
means the earlier to occur of the date (i) the Merger shall become effective
in
accordance with the terms and provisions of the Merger
Agreement, (ii) the Merger Agreement terminates in accordance with
its terms, or (iii) upon mutual written agreement of the parties hereto to
terminate the Voting Agreement. Unless otherwise provided, other
capitalized terms used but not defined in this Agreement shall have the meaning
given to such terms in the Merger Agreement.
Each
of the attorneys and proxies named above is hereby authorized and empowered
by
the undersigned, at any time prior to the Termination Date, to act as the
undersigned’s attorney and proxy to vote the Shares, and to exercise all voting
and other rights of the undersigned with respect to the Shares at every annual,
special or adjourned meeting of the stockholders of the Company: (a) in favor
of
adoption of the Merger Proposals (as defined in the Voting Agreement),
(b) against any Acquisition Proposal between the Company and any Person (as
defined in the Voting Agreement) other than Parent or Purchaser and (c) against
any other action, agreement or proposal that could reasonably be expected
to
result in any of the conditions to the consummation of the Merger under the
Merger Agreement not being fulfilled or which could reasonably be expected
to
otherwise impede, interfere with, delay, postpone or materially adversely
affect
the Merger or the other transactions contemplated by the Merger
Agreement.
This
Proxy shall be binding upon the heirs, estate, executors, personal
representatives, successors and assigns of the Stockholder (including any
transferee of any of the Shares).
Dated: December
___, 2007
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(Signature
of Stockholder)
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(Print
Name of Stockholder)
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Number
of common stock of the Company owned of record as of the date of
this
Proxy:
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EXHIBIT
B
SPOUSAL
CONSENT
The
undersigned represents that the undersigned is the spouse of:
Name
of Stockholder
and
that the undersigned is familiar with the terms of the Voting Agreement (the
“Agreement”), entered into as of December ____, 2007 by and among JDS
Uniphase Corporation, a Delaware corporation, Light Acquisition Corp., a
Delaware corporation, and the undersigned's spouse,
__________________________. The undersigned hereby agrees that the
interest of the undersigned's spouse in all property which is the subject
of
such Agreement shall be irrevocably bound by the terms of such Agreement
and by
any amendment, modification, waiver or termination signed by the undersigned's
spouse. The undersigned further agrees that the undersigned's community property
interest in all property which is the subject of such Agreement shall be
irrevocably bound by the terms of such Agreement, and that such Agreement
shall
be binding on the executors, administrators, heirs and assigns of the
undersigned. The undersigned further authorizes the undersigned's spouse
to
amend, modify or terminate such Agreement, or waive any rights thereunder,
and
that each such amendment, modification, waiver or termination signed by the
undersigned's spouse shall be binding on the community property interest
of
undersigned in all property which is the subject of such Agreement and on
the
executors, administrators, heirs and assigns of the undersigned, each as
fully
as if the undersigned had signed such amendment, modification, waiver or
termination.
Dated:
_____________________________
Name:
