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Exhibit 10.1
VOTING AGREEMENT AND IRREVOCABLE PROXY
THIS VOTING AGREEMENT AND IRREVOCABLE PROXY (the "Agreement") is
entered into as of April 24, 2000, between the undersigned securityholders (the
"Stockholders"), of Destron Fearing Corporation, a Delaware corporation (the
"Company"), and Applied Digital Solutions, Inc., a Missouri corporation ("ADS").
WHEREAS, concurrently with the execution and delivery of this
Agreement, Digital Xxxxx.xxx Inc., a Delaware corporation, and a wholly-owned
subsidiary of ADS ("Merger Sub"), ADS and the Company have entered into an
Agreement and Plan of Merger dated as of April 24, 2000 (the "Merger
Agreement"), providing for the merger of Merger Sub with and into the Company
(the "Merger") pursuant to the terms and conditions of the Merger Agreement, and
setting forth certain representations, warranties, covenants and agreements of
the parties thereto in connection with the Merger; and
WHEREAS, as an inducement and a condition to ADS entering into the
Merger Agreement pursuant to which each Stockholder, subject to the requirements
and adjustments set forth in Section 1.4 of the Merger Agreement, will receive
0.75 of a share of ADS Common Stock (as defined in the Merger Agreement) in
exchange for each share of Company Common Stock (as defined in the Merger
Agreement) owned by such Stockholder, the Stockholders each have agreed to enter
into this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which is hereby acknowledged, the parties hereto
agree as follows:
1. REPRESENTATIONS OF STOCKHOLDERS. Each of the Stockholders severally
represents as to itself that such Stockholder:
(a) is the holder in the capacity set forth on Exhibit A
hereto of that number of shares, and/or options to purchase shares, of
Company Common Stock set forth opposite such Stockholder's name on
Exhibit A (such Stockholder's shares of Company Common Stock, the
"Shares", and the Shares and the options to purchase Common Stock of
the Company and the Shares are collectively referred to herein as the
"Securities");
(b) does not beneficially own (as such term is defined in the
Securities Exchange Act of 1934, as amended (the "1934 Act")) any
shares, or options to purchase shares, of Company Common Stock or other
Company capital stock other than its Securities;
(c) has the right, power and authority to execute and deliver
this Agreement and to perform its obligations under this Agreement, and
this Agreement has been duly executed and delivered by such Stockholder
and constitutes a valid and legally binding agreement of
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such Stockholder, enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and such execution,
delivery and performance by Stockholder of this Agreement will not (i)
conflict with, require a consent, waiver or approval under, or result
in a breach of or default under, any of the terms of any contract,
commitment or other agreement to which such Stockholder is bound; (ii)
violate any order, writ, injunction decree or statute, or any rule or
regulation, applicable to Stockholder or any of the properties or
assets of Stockholder or (iii) result in the creation of, or impose any
obligation on such Stockholder to create, any lien, charge or other
encumbrance of any nature whatsoever upon the Shares; and
(d) the Securities are now and will at all times during the
term of this Agreement be held by such Stockholder, or by a nominee or
custodian for the account of such Stockholder, free and clear of all
pledges, liens, proxies, claims, shares, security interests, preemptive
rights and any other encumbrances whatsoever with respect to the
ownership, transfer or voting of such Securities; and there are no
outstanding options, warrants or rights to purchase or acquire, or
other agreements relating to, such Securities other than this
Agreement.
The representations and warranties contained herein shall be made as the date
hereof and as of each date from the date hereof through and including the date
that the Merger is consummated.
2. AGREEMENT TO VOTE SHARES. Each of the Stockholders severally agrees
to vote its Shares and any New Shares (as defined in Section 7 hereof), and
shall cause any holder of record of its Shares or New Shares to vote, (a) in
favor of adoption and approval of the Merger Agreement and the Merger (and each
other action and transaction contemplated by the Merger Agreement and this
Agreement) at every meeting of the stockholders of the Company at which such
matters are considered (each, a "Company Stockholder Meeting") and at every
adjournment thereof, and (b) against any actions or approval that would compete
with or could serve to materially interfere with, delay, discourage, adversely
affect or inhibit the timely consummation of the Merger including, without
limitation, any Alternative Proposal (as defined in the Merger Agreement). Any
such vote shall be cast or consent shall be given in accordance with such
procedures relating thereto as shall ensure that it is duly counted for purposes
of determining that a quorum is present and for purposes of recording the
results of such vote or consent. Each Stockholder also agrees to use its
reasonable efforts to take, or cause to be taken, all action, and do, or cause
to be done, all things necessary or advisable in order to consummate and make
effective the transactions contemplated by this Agreement.
3. IRREVOCABLE PROXY. Each of the Stockholders hereby constitutes and
appoints ADS or any nominee of ADS, with full power of substitution, as its true
and lawful attorney and proxy and hereby authorizes each, for and in its name,
place and stead, to present and to vote all of the Shares and New Shares (a) in
favor of the adoption and approval of the Merger Agreement and the Merger (and
each other action and transaction contemplated by the Merger Agreement and this
Agreement) and (b) against any action or approval that would compete with or
could serve to materially interfere with, delay, discharge, adversely affect or
inhibit the timely consummation of
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the Merger Agreement, including, without limitation, any Alternative Proposal
(as defined in the Merger Agreement), at every Company Stockholder Meeting and
at every adjournment or postponement thereof, to the same extent and with the
same effect as the Stockholder might or could do under applicable law, rules and
regulations. The proxy granted pursuant to the immediately preceding sentence is
given in consideration of and as an inducement to ADS to enter into the Merger
Agreement and as such is coupled with an interest and shall be irrevocable
unless and until this Agreement terminates pursuant to Section 11(d) hereof.
Each of the Stockholders hereby revokes any and all previous proxies granted
with respect to any of the Shares and shall not hereafter, unless and until this
Agreement terminates pursuant to Section 11(d) hereof, purport to grant any
other proxy or power of attorney with respect to any of the Shares or the New
Shares or enter into any agreement (other than this Agreement), arrangement or
understanding with any person, directly or indirectly, to vote, grant any proxy
or give instructions with respect to the voting of any of the Shares or the New
Shares covering the subject matter hereof.
4. NO VOTING TRUSTS. After the date hereof, the Stockholders severally
agree that they will not, nor will they permit any entity under their control
to, deposit any of their Shares in voting trust or subject any of their Shares
to any arrangement with respect to the voting of such Shares other than
agreements entered into with ADS or Merger Sub.
5. NO PROXY SOLICITATIONS. Each of the Stockholders severally agrees
that such Stockholder will not, nor will such Stockholder permit any entity
under their control to, (a) solicit proxies or become a "participant" in a
"solicitation" (as such terms are defined in Regulation 14A under the 0000 Xxx)
in opposition to or competition with the consummation of the Merger or otherwise
encourage or assist any party in taking or planning any action which would
compete with or otherwise could serve to materially interfere with, delay,
discourage, adversely affect or inhibit the timely consummation of the Merger in
accordance with the terms of the Merger Agreement, (b) directly or indirectly
encourage, initiate or cooperate in a stockholders' vote or action by consent of
the Company's stockholders in opposition to or in competition with the
consummation of the Merger, or (c) become a member of a "group" (as such term is
used in Section 13(d) of the 0000 Xxx) with respect to any voting securities of
the Company for the purpose of opposing or competing with the consummation of
the Merger; provided, that the foregoing shall not restrict any director of the
Company from taking any action such director believes is necessary to satisfy
such director's fiduciary duty to stockholders of the Company.
6. TRANSFER AND ENCUMBRANCE. On or after the date hereof, each of the
Stockholders severally agrees not to voluntarily transfer, sell, offer, pledge
or otherwise dispose of or encumber ("Transfer") any of its Securities or New
Shares prior to the earlier of (a) the effective date of the Merger or (b) the
date this Agreement shall be terminated in accordance with its terms.
7. ADDITIONAL PURCHASES. Each of the Stockholders severally agrees that
if (i) there occurs any stock dividend, stock split, recapitalization,
reclassification, combination or exchange of shares of capital stock of the
Company on, of or affecting the Securities of a Stockholder, (ii) such
Stockholder purchases or otherwise acquires beneficial ownership of any shares
of Company Common Stock or Company capital stock after the execution of this
Agreement, including, but not limited to, through the exercise of such
Stockholders' options, or (iii) such
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Stockholder voluntarily acquires the right to vote any shares of Company Common
Stock or Company capital stock other than the Shares (collectively, "New
Shares"), all such New Shares acquired or purchased by it shall be subject to
the terms of this Agreement to the same extent as if they constituted Shares.
8. SPECIFIC PERFORMANCE. Each party hereto severally acknowledges that
it will be impossible to measure in money the damage to the other party if the
party hereto fails to comply with any of the obligations imposed by this
Agreement, that every such obligation is material and that, in the event of any
such failure, the other party will not have an adequate remedy at law or
damages. Accordingly, each party hereto severally agrees that injunctive relief
or other equitable remedy, in addition to remedies at law or damages, is the
appropriate remedy for any such failure and will not oppose the granting of such
relief on the basis that the other party has an adequate remedy at law. Each
party hereto severally agrees that it will not seek, and agrees to waive any
requirement for, the securing or posting of a bond in connection with any other
party's seeking or obtaining such equitable relief.
9. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns and shall not be assignable without the written consent of all other
parties hereto.
10. ENTIRE AGREEMENT. This Agreement supersedes all prior agreements,
written or oral, among the parties hereto with respect to the subject matter
hereof and contains the entire agreement among the parties with respect to the
subject matter hereof. This Agreement may not be amended, supplemented or
modified, and no provisions hereof may be modified or waived, except by an
instrument in writing signed by all the parties hereto. No waiver of any
provisions hereof by any party shall be deemed a waiver of any other provisions
hereof by any such party, nor shall any such waiver be deemed a continuing
waiver of any provision hereof by such party.
11. MISCELLANEOUS.
(a) This Agreement shall be deemed a contract made under, and
for all purposes shall be construed in accordance with, the laws of the
State of Delaware.
(b) If any provision of this Agreement or the application of
such provision to any person or circumstances shall be held invalid by
a court of competent jurisdiction, the remainder of the provision held
invalid and the application of such provision to persons or
circumstances, other than the party as to which it is held invalid,
shall not be affected.
(c) This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all
of which together shall constitute one and the same instrument.
(d) This Agreement shall terminate upon the earliest to occur
of (i) the Effective Time of the Merger (as defined in the Merger
Agreement), and (ii) termination of the Merger Agreement.
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(e) All Section headings herein are for convenience of
reference only and are not part of this Agreement, and no construction
or reference shall be derived therefrom.
(f) The obligations of the Stockholders set forth in this
Agreement shall not be effective or binding upon any Stockholder until
after such time as the Merger Agreement is executed and delivered by
the Company, ADS and Merger Sub, and the parties agree that there is
not and has not been any other agreement, arrangement or understanding
between the parties hereto with respect to the matters set forth
herein.
[SIGNATURES ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
APPLIED DIGITAL SOLUTIONS, INC.
By: /s/ XXXXXXX X. XXXXXXXX
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Xxxxxxx X. Xxxxxxxx
Chairman of the Board and Chief
Executive Officer
THE STOCKHOLDERS
/s/ XXXXXXXX XXXXXXXX /s/ XXXXXXX X. XXXX
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Xxxxxxxx Xxxxxxxx Xxxxxxx X. Xxxx
/s/ XXXXXX XXXXX /s/ XXXXXXX XXXXXX
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Xxxxxx Xxxxx Xxxxxxx Xxxxxx
/s/ XXXXX X. XXXXXXXX /s/ XXXXXX X. XXXXXXX
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Xxxxx X. Xxxxxxxx Xxxxxx X. Xxxxxxx
/s/ XXXXXXX XXXXXXXX /s/ XXXXXXX XXXXX
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Xxxxxxx Xxxxxxxx Xxxxxxx Xxxxx
/s/ XXXXXXX XXXXXX
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Xxxxxxx Xxxxxx
/s/ XXXXXXX XXXXXXXX
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Xxxxxxx Xxxxxxxx
/s/ XXXX XXXXXXX
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Xxxx Xxxxxxx
/s/ XXXXX XXXXXXXXX
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Xxxxx Xxxxxxxxx
/s/ XXXX X. XXXXXX
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Xxxx X. Xxxxxx
[SIGNATURE PAGE TO VOTING AGREEMENT AND IRREVOCABLE PROXY]
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EXHIBIT "A" TO VOTING AGREEMENT AND
IRREVOCABLE PROXY
Number of Shares of Number of Options to
Stockholder Company Common Stock Purchase Common Stock
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Xxxxxxxx 486,000 245,000
Xxxxxxxx 0 140,000
Xxxxx 157,500 45,000
Xxxxxxxx 0 000,000
Xxxxx 1,000 127,500
Calgren 0 68,000
Xxxxxx 82,500 0
Xxxxxxxx 0 40,000
Xxxxxxx 54,700 37,500
Xxxxxxxxx 24,000 30,000
Kohler 47,500 20,000
Xxxx 0 40,000
Xxxxxx 0 40,000
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