Exhibit 10.1
SUPPORT AGREEMENT
SUPPORT AGREEMENT, dated as of June 5, 2006 (this "Agreement"), among the
shareholders listed on the signature page(s) hereto (collectively, the
"Shareholders" and each individually, a "Shareholder"), Onyx Software
Corporation, a Washington corporation (the "Company") and M2M Holdings, Inc., a
Delaware corporation (the "Parent"). Capitalized terms used and not otherwise
defined herein shall have the respective meanings assigned to them in the Merger
Agreement referred to below.
WHEREAS, as of the date hereof, the Shareholders own of record and
beneficially (within the meaning of Rule 13d-3 of the Exchange Act) the shares
of capital stock of the Company set forth on Schedule A hereto (the "Shares");.
WHEREAS, concurrently with the execution of this Agreement, Parent and the
Company are entering into an Agreement and Plan of Merger, dated as of the date
hereof (the "Merger Agreement"), pursuant to which, upon the terms and subject
to the conditions thereof, a subsidiary of Parent will be merged with and into
the Company, and the Company will be the surviving corporation (the "Merger");
and
WHEREAS, as a condition to the willingness of Parent to enter into the
Merger Agreement, Parent has required that the Shareholders agree, and in order
to induce Parent to enter into the Merger Agreement the Shareholders are
willing, to enter into this Agreement.
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. Agreement to Vote Shares.
(a) Each Shareholder covenants and agrees that until the termination
of this Agreement in accordance with the terms hereof, such Shareholder shall
(a) when a meeting of the Company's shareholders is held, appear at such meeting
(in person or by proxy) or otherwise cause all Shares and any New Shares (as
defined below) to be counted as present thereat for the purpose of establishing
a quorum and (b) vote (or cause to be voted) the Shares and any New Shares (i)
in favor of adoption of the Merger Agreement and approval of the transactions
contemplated thereby; (ii) against the approval of any proposal made in
opposition to or in competition with the consummation of the Merger and the
Merger Agreement, (iii) against any proposal that would reasonably lead to or
result in the conditions of Parent's or Merger Sub's obligations under the
Merger Agreement not being fulfilled; (iv) against any Competing Transaction (as
defined in the Merger Agreement); and (v) against the election of a group of
individuals to replace a majority or more of the individuals presently on the
Board of Directors of the Company (each item set forth in the foregoing clauses
(i) through (v), a "Proposed Matter") at every meeting of shareholders of
Company called with respect to any Proposed Matter (and at every postponement or
adjournment thereof). Prior to the termination of this Agreement, each
Shareholder covenants and agrees not to enter into any agreement or
understanding with any person to vote or give instructions in any manner
inconsistent with the
terms of this Agreement. The provisions of this Section 1 shall apply to all
Shares and New Shares owned by each Shareholder as of the record date for the
vote on any Proposed Matter.
(b) Each Shareholder further agrees that, until the termination of
this Agreement, (Y) such Shareholder will not, and will not permit any entity
under such Shareholder's control to, (A) solicit proxies or become a
"participant" in a "solicitation" (as such terms are defined in Rule 14A under
the Exchange Act) with respect to an Opposing Proposal (as defined below), (B)
initiate a shareholders' vote with respect to an Opposing Proposal or (C) become
a member of a "group" (as such term is used in Section 13(d) of the Exchange
Act) with respect to any voting securities of the Company with respect to an
Opposing Proposal. For the purposes of this Agreement, an "Opposing Proposal"
means any action or proposal described in clauses (ii) through (iv) of Section
1(a).
(c) New Shares shall be subject to the terms and conditions of this
Agreement to the same extent as if they constituted Shares. "New Shares" means:
(i) any shares of capital stock or voting securities of the
Company that Shareholder purchases or with respect to which Shareholder
otherwise acquires beneficial ownership (whether through the exercise of any
options, warrants or other rights to purchase shares of Company Common Stock or
otherwise) after the date of this Agreement and prior to the termination of this
Agreement; and
(ii) any shares of capital stock or voting securities of the
Company that Shareholder becomes the beneficial owner of as a result of any
change in Company Common Stock by reason of a stock dividend, stock split,
split-up, recapitalization, reorganization, business combination, consolidation,
exchange of shares, or any similar transaction or other change in the capital
structure of the Company affecting Company Common Stock.
Section 2. Irrevocable Proxy. Each Shareholder has delivered to Parent a
duly executed proxy in the form attached hereto as Exhibit A (the "Proxy"), such
Proxy covering the issued and outstanding Shares and all issued and outstanding
New Shares in respect of which such Shareholder is the record holder and is
entitled to vote at each meeting of the shareholders of the Company (including,
without limitation, each written consent in lieu of a meeting) prior to the
termination of this Agreement. Upon the execution of this Agreement by such
Shareholder, such Shareholder hereby revokes any and all prior proxies or powers
of attorney given by such Shareholder with respect to voting of the Shares on
the matters referred to in Section 1 and agrees not to grant any subsequent
proxies or powers of attorney with respect to the voting of the Shares on the
matters referred to in Section 1 until after the Expiration Date. Each
Shareholder understands and acknowledges that Parent is entering into the Merger
Agreement in reliance upon the Shareholder's execution and delivery of this
Agreement and the Proxy. Each Shareholder hereby affirms that the Proxy is given
in connection with the execution of the Merger Agreement, and that such Proxy is
given to secure the performance of the duties of such Shareholder under this
Agreement. Except as otherwise provided for herein, each Shareholder hereby (i)
affirms that the Proxy is coupled with an interest and may under no
circumstances be revoked prior to the Expiration Date, (ii) ratifies and
confirms that the Proxies appointed hereunder may lawfully do or cause to be
done by virtue hereof, and (iii) affirms that such Proxy is executed and
intended to be irrevocable to the extent permitted by the provisions of Section
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23B.07.220 of the WBCA. The power of attorney granted by each Shareholder herein
is a durable power of attorney and shall survive the dissolution, bankruptcy,
death or incapacity of such Shareholder. Notwithstanding any other provisions of
this Agreement, the Proxy granted hereunder shall automatically terminate upon
the termination of this Agreement.
Section 3. Transfer of Shares.
(a) Until this Agreement is terminated, each Shareholder covenants and
agrees that such Shareholder will not directly or indirectly (i) sell, assign,
transfer (including by merger, testamentary disposition, interspousal
disposition pursuant to a domestic relations proceeding or otherwise by
operation of law), pledge, encumber or otherwise dispose of any of the Shares or
New Shares, (ii) deposit any of the Shares or New Shares into a voting trust or
enter into a voting agreement or arrangement with respect to the Shares or New
Shares or grant any proxy or power of attorney with respect thereto that is
inconsistent with this Agreement or (iii) enter into any contract, option,
agreement, commitment, understanding or other arrangement or undertaking with
respect to the direct or indirect sale, assignment, transfer, pledge,
encumbrance or other disposition of any Shares or New Shares (each, a
"Transfer"). Any Transfer or purported Transfer of share of Company Common Stock
in violation of the foregoing restricts shall be null and void.
(b) Permitted Transfers. Section 3(a) shall not prohibit a transfer of
Shares or New Shares by a Shareholder (i) upon the death of such Shareholder,
interspousal disposition, (ii) for tax or estate planning or charitable gift
purposes or if such Shareholder is a partnership or limited liability company,
to one or more partners or members of such Shareholder to an affiliated
corporation under common control with such Shareholder; provided, however, that
a transfer referred to in this Section 3(c) shall be permitted only if, as a
precondition to such transfer, the transferee agrees in a writing, reasonably
satisfactory in form and substance to Parent, to be bound by the terms of this
Agreement and delivers a Proxy to Parent in substantially the form of the Proxy
attached hereto.
Section 4. Representations and Warranties of the Shareholders. Each
Shareholder on his or her own behalf hereby severally represents and warrants to
Parent with respect to such Shareholder and such Shareholder's ownership of the
Shares as follows:
(a) Ownership of Shares. The Shareholder beneficially owns all of the
Shares and rights to Shares as set forth on Schedule A hereto and has good and
marketable title to such Shares, free and clear of any claims, liens, options,
charges, proxies, voting trusts, agreements, rights, understandings,
arrangements, encumbrances or security interests. The Shareholder owns no shares
of Company Common Stock other than the Shares as set forth on Schedule A hereto.
The Shareholder and/or its affiliates have sole voting power, without
restrictions, with respect to all of the Shares. The Shareholder's principal
residence or place of business is accurately set forth on the Shareholder's
signature page hereto.
(b) Power, Binding Agreement. The Shareholder has the legal capacity
and all requisite power and authority to enter into and perform all of his or
her obligations under this Agreement. This Agreement has been duly and validly
executed and delivered by the Shareholder and constitutes a valid and binding
obligation of the Shareholder, enforceable
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against the Shareholder in accordance with its terms, except as enforcement
thereof may be limited against such Shareholder by (i) bankruptcy, insolvency,
reorganization, moratorium and similar Laws affecting enforcement of creditors'
rights or remedies in general as from time to time in effect or (ii) the
exercise by courts of equity powers.
(c) No Conflicts. The execution and delivery of this Agreement do not,
conflict with or result in any violation of, or default (with or without notice
or lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or to loss of a material benefit
under, any provision of any loan or credit agreement, note, bond, mortgage,
indenture, lease or other agreement, instrument, permit, concession, franchise,
license, judgment, order, decree, statute, law, ordinance, rule or regulation
applicable to the Shareholder, the Shares or any of the Shareholder's properties
or assets. Except as expressly contemplated hereby, the Shareholder is not a
party to, and the Shares are not subject to or bound in any manner by, any
contract or agreement relating to the Shares, including without limitation, any
voting agreement, option agreement, purchase agreement, shareholders' agreement,
partnership agreement or voting trust. Except for the expiration or termination
of the waiting period under the HSR Act and informational filings with the
Securities and Exchange Commission, to the knowledge of Shareholder, no consent,
approval, order or authorization of, or registration, declaration or filing
with, any court, administrative agency or commission or other governmental
authority or instrumentality, domestic, foreign or supranational, is required by
or with respect to the Shareholder in connection with the execution and delivery
of this Agreement or the consummation by the Shareholder of the transactions
contemplated hereby.
Section 5. Termination. This Agreement shall terminate upon the earlier to
occur of (a) such date and time as the Merger Agreement shall have been
terminated in accordance with its terms (b) an amendment to the Merger Agreement
in a manner that reduces the aggregate consideration to be paid to any
Shareholder upon consummation of the Merger or changes the nature of the
consideration in any way other than a change that does not change the amount of
the cash consideration, and (c) the Effective Time.
Section 6. Fiduciary Duties. Each Shareholder is signing this Agreement
solely in such Shareholder's capacity as an owner of such Shareholder's
respective Shares, and nothing herein shall prohibit, prevent or preclude such
Shareholder from taking or not taking any action in such Shareholder's capacity
as an officer or director of the Company to the extent permitted by the Merger
Agreement, or as an officer or a director of any third party.
Section 7. 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. Each Shareholder agrees that, in the event of any breach or threatened
breach by such Shareholder 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 and
obtain (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. Each Shareholder further agrees
that neither Parent nor any other Person shall be required to obtain, furnish or
post any bond or similar instrument in connection with or as a condition to
obtaining any remedy referred to in this Section 7, and each Shareholder
irrevocably waives any right such
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Shareholder may have to require the obtaining, furnishing or posting of any such
bond or similar instrument.
Section 8. Miscellaneous.
(a) Entire Agreement. This Agreement and the Merger 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) Severability. 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, provided that, upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall 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) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Washington without regard to the
principles of conflicts of law thereof.
(d) Counterparts. This Agreement may be executed by facsimile
signature and in multiple counterparts, each of which shall be deemed an
original and all of which together shall constitute one and the same instrument.
(e) Notices. All notices and other communications hereunder shall be
in writing and shall be deemed duly delivered (i) three business days after
being sent by registered or certified mail, return receipt requested, postage
prepaid, or (ii) one business day after being sent for next business day
delivery, fees prepaid, via a reputable nationwide overnight courier service, in
each case to the intended recipient as set forth below:
(i) if to a Shareholder to the address set forth on the
respective signature page of this Agreement;
(ii) if to Parent to:
00 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attn: R. Xxxxx Xxxxxx, President
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with a copy to:
Xxxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile No.: (000) 000-0000
(iii) if to the Company to:
Onyx Software Corporation
0000 -- 000xx Xxx. XX
Xxxxx 000
Xxxxxxx, XX 00000
Attn: Chief Executive Officer
Phone: 000-000-0000
Fax: 000-000-0000
with a copy to:
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
(f) No Third Party Beneficiaries. This Agreement is not intended, and
shall not be deemed, to confer any rights or remedies upon any person other than
the parties hereto and their respective successors and permitted assigns, to
create any agreement of employment with any person or to otherwise create any
third-party beneficiary hereto.
(g) Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement may be assigned or delegated, in
whole or in part, by operation of law or otherwise by any of the parties hereto
without the prior written consent of the other parties, and any such assignment
without such prior written consent shall be null and void, except that Parent
may assign this Agreement to any direct or indirect wholly owned subsidiary of
Parent without the consent of the Company or the Shareholders. Subject to the
preceding sentence, this Agreement shall be binding upon, inure to the benefit
of, and be enforceable by, the parties hereto and their respective successors
and permitted assigns.
(h) Interpretation. When reference is made in this Agreement to a
Section, such reference shall be to a Section of this Agreement, unless
otherwise indicated. The headings contained in this Agreement are for
convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement. The language used in this Agreement shall be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no
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rule of strict construction shall be applied against any party. Whenever the
context may require, any pronouns used in this Agreement shall include the
corresponding masculine, feminine or neuter forms, and the singular form of
nouns and pronouns shall include the plural, and vice versa. Any reference to
any federal, state, local or foreign statute or law shall be deemed also to
refer to all rules and regulations promulgated thereunder, unless the context
requires otherwise. Whenever the words "include," "includes" or "including" are
used in this Agreement, they shall be deemed to be followed by the words
"without limitation." No summary of this Agreement prepared by the parties shall
affect in any way the meaning or interpretation of this Agreement.
(i) WAIVER OF JURY TRIAL. EACH OF PARENT, THE COMPANY AND EACH
SHAREHOLDER HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THE ACTIONS OF PARENT, THE COMPANY OR EACH SHAREHOLDER IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT OF THIS AGREEMENT.
(j) No Survival. The representation and warranties contained in the
Agreement shall not survive the termination of this Agreement.
[Signature Pages Follow.]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be signed individually or by its respective duly authorized officer as of the
date first written above.
ONYX SOFTWARE CORPORATION
By: /s/ XXXXXX X. XXXXXXXX
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Name: Xxxxxx X. Xxxxxxxx
Title: President and Chief Executive
Officer
M2M HOLDINGS, INC.
By: /s/ R. XXXXX XXXXXX
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Name: R. Xxxxx Xxxxxx
Title: President
(Signature Page to Support Agreement)
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
validly executed by a duly authorized officer thereof as of the date first above
written.
/s/ XXXXXX X. XXXXXXXX
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(Signature of Shareholder)
Xxxxxx X. Xxxxxxxx
(Print Name of Shareholder)
Address:
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Facsimile:
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(Signature Page to Support Agreement)
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
validly executed by a duly authorized officer thereof as of the date first above
written.
/s/ XXXXXX X. XXXXXXXXXXX
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(Signature of Shareholder)
Xxxxxx X. Xxxxxxxxxxx
(Print Name of Shareholder)
Address:
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Facsimile:
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(Signature Page to Support Agreement)
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
validly executed by a duly authorized officer thereof as of the date first above
written.
/s/ XXXX XXXXXXXX
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(Signature of Shareholder)
Xxxx Xxxxxxxx
(Print Name of Shareholder)
Address:
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Facsimile:
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(Signature Page to Support Agreement)
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
validly executed by a duly authorized officer thereof as of the date first above
written.
/s/ XXXX X. XXXXXXX
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(Signature of Shareholder)
Xxxx X. Xxxxxxx
(Print name of Shareholder)
Address:
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Facsimile:
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(Signature Page to Support Agreement)
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
validly executed by a duly authorized officer thereof as of the date first above
written.
/s/ XXXXXX XXXXXXXX
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(Signature of Shareholder)
Xxxxxx Xxxxxxxx
(Print Name of Shareholder)
Address:
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Facsimile:
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(Signature Page to Support Agreement)
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
validly executed by a duly authorized officer thereof as of the date first above
written.
/s/ XXXXXX XXXXXXXX
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(Signature of Shareholder)
Xxxxxx Xxxxxxxx
(Print Name of Shareholder)
Address:
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Facsimile:
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(Signature Page to Support Agreement)
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
validly executed by a duly authorized officer thereof as of the date first above
written.
/s/ XXXX X. XXXXXX
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(Signature of Shareholder)
Xxxx X. Xxxxxx
(Print Name of Shareholder)
Address:
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Facsimile:
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(Signature Page to Support Agreement)
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
validly executed by a duly authorized officer thereof as of the date first above
written.
/s/ XXXXXX XXXXXXX XXXX
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(Signature of Shareholder)
Xxxxxx Xxxxxxx Xxxx
(Print Name of Shareholder)
Address:
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Facsimile:
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(Signature Page to Support Agreement)
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
validly executed by a duly authorized officer thereof as of the date first above
written.
/s/ XXXXXXX X. XXXXXXXXXX
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(Signature of Shareholder)
Xxxxxxx X. Xxxxxxxxxx
(Print Name of Shareholder)
Address:
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Facsimile:
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(Signature Page to Support Agreement)
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
validly executed by a duly authorized officer thereof as of the date first above
written.
/s/ XXXXX XXXX
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(Signature of Shareholder)
Xxxxx Xxxx
(Print Name of Shareholder)
Address:
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Facsimile:
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(Signature Page to Support Agreement)
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
validly executed by a duly authorized officer thereof as of the date first above
written.
/s/ XXXXXXX X. XXXXXX
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(Signature of Shareholder)
Xxxxxxx X. Xxxxxx
(Print Name of Shareholder)
Address:
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Facsimile:
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(Signature Page to Support Agreement)
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
validly executed by a duly authorized officer thereof as of the date first above
written.
/s/ XXXXXXX XXXXXX
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(Signature of Shareholder)
Xxxxxxx Xxxxxx
(Print Name of Shareholder)
Address:
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Facsimile:
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(Signature Page to Support Agreement)
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
validly executed by a duly authorized officer thereof as of the date first above
written.
/s/ XXXXXX X. XXXXXXX
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(Signature of Shareholder)
Xxxxxx X. Xxxxxxx
(Print Name of Shareholder)
Address:
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Facsimile:
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(Signature Page to Support Agreement)
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
validly executed by a duly authorized officer thereof as of the date first above
written.
Xxxxxx X Xxxxxxx, Trustee for the
Xxxxxxx Living Trust DTD
12/08/99
(Print Name of Shareholder)
/s/ XXXXXX X. XXXXXXX
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(Signature of Shareholder)
Xxxxxx X. Xxxxxxx
(Print Name of Signatory)
Address:
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Facsimile:
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(Signature Page to Support Agreement)
SCHEDULE A
VESTED
NUMBER OF OPTIONS
SHARES AS OF
SHAREHOLDER OWNED 5/31/06* TOTAL
----------- --------- -------- ---------
Xxxxxx X Xxxxxxxx 60,833 188,750 249,583
Xxxxxx X Xxxxxxxxxxx 71,000 43,750 115,150
Xxxx Xxxxxxxx 21,000 -- 21,000
Xxxx X Xxxxxxx 21,000 68,937 89,937
Xxxxxx Xxxxxxxx 21,000 -- 21,000
Xxxx X Xxxxxx 24,112 179,499 203,611
Xxxxxx Xxxxxxx Xxxx 21,000 66,404 87,404
Xxxxxx Xxxxx 10,000 -- 10,000
--------- ------- ---------
SUB-TOTAL MANAGEMENT 250,345 547,340 797,685
--------- ------- ---------
Xxxxxxx Xxxxxxxxxx -- 3,750 3,750
Xxxxxx Xxxx 375,144 65,968 441,112
Xxxxxxx X Xxxxxx 2,530,147 58,468 2,588,615
Xxxxxxx Xxxxxx -- 43,750 43,750
Xxxxxx Xxxxxxx -- 58,468 58,468
Xxx Xxxxxxx 93,525 51,250 144,775
--------- ------- ---------
SUB-TOTAL BOARD OF DIRECTORS 2,998,816 281,654 3,280,470
--------- ------- ---------
TOTAL - MANAGEMENT AND DIRECTORS 3,249,161 828,994 4,078,155
========= ======= =========
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* Represents in-the-money options, assuming merger consideration of $4.80 per
share.
EXHIBIT A
IRREVOCABLE PROXY
TO VOTE STOCK OF
ONYX SOFTWARE CORPORATION
The undersigned shareholder of Onyx Software Corporation, a Delaware corporation
(the "Company"), hereby irrevocably appoints the members of the Board of
Directors of M2M Holdings, Inc., a Delaware corporation ("Parent"), and each of
them, or any other designee of Parent, as the sole and exclusive attorneys and
proxies of the undersigned, with full power of substitution and re-substitution,
to vote and exercise all voting rights (to the full extent that the undersigned
is entitled to do so) with respect to all of the issued and outstanding shares
of capital stock of the Company that now are owned of record by the undersigned
(collectively, the "Shares") in accordance with the terms of this Irrevocable
Proxy. The Shares beneficially owned by the undersigned shareholder of the
Company as of the date of this Irrevocable Proxy are listed on the final page of
this Irrevocable Proxy. Upon the undersigned's execution of this Irrevocable
Proxy, any and all prior proxies given by the undersigned with respect to the
voting of any Shares on the matters referred to in the third full paragraph of
this Irrevocable Proxy are hereby revoked and the undersigned agrees not to
grant any subsequent proxies with respect to such matters until after the
Expiration Date (as defined below).
This Irrevocable Proxy is irrevocable, is coupled with an interest, and is
granted in consideration of Parent entering into that certain Agreement and Plan
of Merger (the "Merger Agreement") by and among Parent, Orion Acquisition
Corporation, a Washington corporation and a wholly owned subsidiary of Parent
("Merger Sub"), and the Company, which Merger Agreement provides for the merger
of Merger Sub with and into the Company (the "Merger"). As used herein, the term
"Expiration Date" shall mean the earlier to occur of (a) such date and time as
the Merger Agreement shall have been terminated in accordance with its terms (b)
an amendment to the Merger Agreement in a manner that reduces the aggregate
consideration to be paid to any Shareholder upon consummation of the Merger or
changes the nature of the consideration in any way other than a change that does
not change the amount of the cash consideration, and (c) the Effective Time.
Capitalized terms used and not otherwise defined herein shall have the
respective meanings assigned to them in the Merger Agreement.
The attorneys and proxies named above, and each of them are hereby authorized
and empowered by the undersigned, at any time prior to the Expiration Date, to
act as the undersigned's attorney and proxy to vote the Shares, and to exercise
all voting 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 the shareholders of the Company and in
every written consent in lieu of such meeting:
(a) in favor of adoption of the Merger Agreement and approval of the
transactions contemplated thereby;
Exhibit A-1
(b) against the approval of any proposal made in opposition to or in
competition with the consummation of the Merger and the Merger Agreement;
(c) against any proposal that would reasonably lead to, result in the
conditions of Parent's or Merger Sub's obligations under the Merger Agreement
not being fulfilled;
(d) against any Competing Transaction (as defined in the Merger
Agreement); and
(e) against the election of a group of individuals to replace a
majority or more of the individuals presently on the Board of Directors of the
Company.
The attorneys and proxies named above may not exercise this Irrevocable Proxy on
any other matter except as provided above. The undersigned shareholder may vote
the Shares on all other matters.
All authority herein conferred shall survive the death or incapacity of the
undersigned and any obligation of the undersigned hereunder shall be binding
upon the heirs, personal representatives, successors and assigns of the
undersigned.
(Remainder of page intentionally left blank)
Exhibit A-2
This Irrevocable Proxy is coupled with an interest as aforesaid and is
irrevocable.
Dated: June 5, 2006
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(Signature of Shareholder)
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(Print Name of Shareholder)
_____________ shares of Company Common
Stock owned on the date hereof:
____________ shares of Company Common
Stock issuable upon the exercise of
outstanding options, warrants or other
rights.
(Signature Page to Irrevocable Proxy)
This Irrevocable Proxy is coupled with an interest as aforesaid and is
irrevocable.
Dated: June 5, 2006
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(Print name of Shareholder)
----------------------------------------
(Signature of Shareholder)
----------------------------------------
(Print name of signatory)
----------------------------------------
(Print title of signatory)
_____________ shares of Company Common
Stock owned on the date hereof:
____________ shares of Company Common
Stock issuable upon the exercise of
outstanding options, warrants or other
rights.
(Signature Page to Irrevocable Proxy)
