FORM OF VOTING AGREEMENT
THIS VOTING AGREEMENT is entered into as of September 7, 2000, by and
between EXELIXIS, INC., a Delaware corporation ("Parent"), and
----------
("Stockholder").
RECITALS
A. Parent, Athens Acquisition Corp., a Delaware corporation and a
wholly owned subsidiary of Parent ("Merger Sub"), and Agritope, Inc., a Delaware
corporation (the "Company"), are entering into an Agreement and Plan of Merger
and Reorganization of even date herewith (the "Reorganization Agreement") which
provides (subject to the conditions set forth therein) for the merger of Merger
Sub into the Company (the "Merger").
B. In order to induce Parent and Merger Sub to enter into the
Reorganization Agreement, Stockholder is entering into this Voting Agreement.
AGREEMENT
The parties to this Voting Agreement, intending to be legally bound, agree
as follows:
SECTION 1. CERTAIN DEFINITIONS
For purposes of this Voting Agreement:
(A) "COMPANY CAPITAL STOCK" shall mean, collectively, the Company
Common Stock and the Company Series A Preferred Stock.
(B) "COMPANY COMMON STOCK" shall mean the common stock, $.01 par
value per share, of the Company.
(C) "COMPANY SERIES A PREFERRED STOCK" shall mean the Series A
Preferred Stock, $.01 par value per share, of the Company.
(D) "EXPIRATION DATE" shall mean the earlier of (i) the date upon
which the Reorganization Agreement is validly terminated, or (ii) the date upon
which the Merger becomes effective.
(E) Stockholder shall be deemed to "OWN" or to have acquired
"OWNERSHIP" of a security if Stockholder: (i) is the record owner of such
security; or (ii) is the "beneficial owner" (within the meaning of Rule 13d-3
under the Securities Exchange Act of 1934) of such security.
(F) "PERSON" shall mean any (i) individual, (ii) corporation,
limited liability company, partnership or other entity, or (iii) governmental
authority.
1
<PAGE>
(G) "SUBJECT SECURITIES" shall mean: (i) all securities of the
Company (including all shares of Company Capital Stock and all options,
warrants, convertible notes and other rights to acquire shares of Company
Capital Stock) Owned by Stockholder as of the date of this Agreement; and (ii)
all additional securities of the Company (including all additional shares of
Company Capital Stock and all additional options, warrants, convertible notes
and other rights to acquire shares of Company Capital Stock) of which
Stockholder acquires Ownership during the period from the date of this Agreement
through the Expiration Date.
(H) A Person shall be deemed to have a effected a "TRANSFER" of a
security if such Person directly or indirectly: (i) sells, pledges, encumbers,
grants an option with respect to, transfers or disposes of such security or any
interest in such security; or (ii) enters into an agreement or commitment
contemplating the possible sale of, pledge of, encumbrance of, grant of an
option with respect to, transfer of or disposition of such security or any
interest therein.
SECTION 2. TRANSFER OF SUBJECT SECURITIES
2.1 TRANSFEREE OF SUBJECT SECURITIES TO BE BOUND BY THIS AGREEMENT.
Stockholder agrees that, during the period from the date of this Voting
Agreement through the Expiration Date, Stockholder shall not cause or permit any
Transfer of any of the Subject Securities to be effected unless each Person to
which any of such Subject Securities, or any interest in any of such Subject
Securities, is or may be transferred shall have: (a) executed a counterpart of
this Voting Agreement and a proxy in the form attached hereto as Exhibit A (with
such modifications as Parent may reasonably request); and (b) agreed to hold
such Subject Securities (or interest in such Subject Securities) subject to all
of the terms and provisions of this Voting Agreement.
2.2 TRANSFER OF VOTING RIGHTS. Stockholder agrees that, during the
period from the date of this Voting Agreement through the Expiration Date,
Stockholder shall ensure that: (a) none of the Subject Securities is deposited
into a voting trust; and (b) no proxy is granted, and no voting agreement or
similar agreement is entered into, with respect to any of the Subject
Securities.
2.3 MARGIN ACCOUNTS. In the event that any of the Subject Securities are
held in a margin account with a broker-dealer as of the date of this Voting
Agreement, Stockholder agrees that, during the period from the date of this
Voting Agreement through the Expiration Date, if there is a margin call with
respect to such margin account, Stockholder shall ensure that sufficient
collateral is deposited into such margin account so that the Subject Securities
are not sold or otherwise transferred.
SECTION 3. VOTING OF SHARES
3.1 VOTING AGREEMENT. Stockholder agrees that, during the period from
the date of this Voting Agreement through the Expiration Date, at any meeting of
stockholders of the Company, however called, and in any written action by
consent of stockholders of the Company, Stockholder shall (unless otherwise
directed in writing by Parent) cause all outstanding shares of
2
<PAGE>
Company Capital Stock that are Owned by Stockholder as of the record date fixed
for such meeting or written consent:
(A) to be voted in favor of the approval and adoption of the
Reorganization Agreement and the approval of the Merger on the terms and subject
to the conditions set forth therein, and in favor of each of the other actions
contemplated by the Reorganization Agreement;
(B) to be voted against any action or agreement that to the actual
knowledge of Stockholder would result in a material breach of any covenant,
representation or warranty or any other obligation or agreement of the Company
under the Reorganization Agreement; and
(C) to be voted against the following actions (other than the Merger
and the transactions contemplated by the Reorganization Agreement): (A) any
extraordinary corporate transaction, such as a merger, consolidation or other
business combination involving the Company or any subsidiary of the Company; (B)
a sale, lease or transfer of a material amount of assets of the Company or any
subsidiary of the Company or a reorganization, recapitalization, dissolution or
liquidation of the Company or any subsidiary of the Company; or (C) (1) any
change in a majority of the board of directors of the Company; (2) any amendment
of the Company's Certificate of Incorporation; (3) any other material change in
the present capitalization of the Company or any amendment of the Company's
corporate structure; or (4) any other action which to the actual knowledge of
Stockholder is intended, or could reasonably be expected to impede, interfere
with, delay, postpone, discourage or adversely affect the contemplated economic
benefits to Parent of the Merger or any of the other transactions contemplated
by the Reorganization Agreement or this Voting Agreement.
Stockholder shall not enter into any agreement or understanding with any Person
prior to the earlier to occur of the valid termination of the Reorganization
Agreement or the Effective Time to vote or give instructions in any manner
inconsistent with clause "(a)," "(b)" or "(c)" of the preceding sentence.
3.2 PROXY. Contemporaneously with the execution of this Voting
Agreement: (i) Stockholder shall deliver to Parent a proxy in the form attached
to this Voting Agreement as Exhibit A, which shall be irrevocable to the fullest
extent permitted by law, with respect to the shares referred to therein (the
"Proxy"); and (ii) except as set forth on any Schedule 3.2 hereto, Stockholder
shall cause to be delivered to Parent an additional proxy (in the form attached
hereto as EXHIBIT A) executed on behalf of the record owner of any outstanding
shares of Company Capital Stock that are owned beneficially (within the meaning
of Rule 13d-3 under the Securities Exchange Act of 1934), but not of record, by
Stockholder.
SECTION 4. WAIVER OF APPRAISAL RIGHTS
Stockholder hereby irrevocably and unconditionally waives, and agrees to
cause to be waived and to prevent the exercise of, any rights of appraisal, any
dissenters' rights and any similar rights relating to the Merger or any related
transaction that Stockholder or any other
3
<PAGE>
Person may have by virtue of the ownership of any outstanding shares of
Company Capital Stock Owned by Stockholder.
SECTION 5. NO SOLICITATION
Stockholder agrees in his or her capacity as such that, during the period
from the date of this Voting Agreement through the Expiration Date, Stockholder
shall not, directly or indirectly, and Stockholder shall ensure that his
Representatives (as defined in the Reorganization Agreement) do not, directly or
indirectly: (i) solicit, initiate, encourage or induce the making, submission or
announcement of any Acquisition Proposal (as defined in the Reorganization
Agreement) or take any action that could reasonably be expected to lead to an
Acquisition Proposal; (ii) furnish any information regarding the Company or any
direct or indirect subsidiary of the Company to any Person in connection with or
in response to an Acquisition Proposal or potential Acquisition Proposal; or
(iii) engage in discussions with any Person with respect to any Acquisition
Proposal. Stockholder shall immediately cease and discontinue, and Stockholder
shall ensure that his Representatives immediately cease and discontinue, any
existing discussions with any Person that relate to any Acquisition Proposal.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
Stockholder hereby represents and warrants to Parent as follows:
6.1 AUTHORIZATION, ETC. Stockholder has the absolute and unrestricted
right, power, authority and capacity to execute and deliver this Voting
Agreement and the Proxy and to perform his obligations hereunder and thereunder.
This Voting Agreement and the Proxy have been duly executed and delivered by
Stockholder and constitute legal, valid and binding obligations of Stockholder,
enforceable against Stockholder in accordance with their 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.
6.2 NO CONFLICTS OR CONSENTS
(A) The execution and delivery of this Voting Agreement and the
Proxy by Stockholder do not, and the performance of this Voting Agreement and
the Proxy by Stockholder will not: (i) conflict with or violate any law, rule,
regulation, order, decree or judgment applicable to Stockholder or by which he
or any of his properties is or may be bound or affected; or (ii) result in or
constitute (with or without notice or lapse of time) any breach of or default
under, or give to any other Person (with or without notice or lapse of time) any
right of termination, amendment, acceleration or cancellation of, or result
(with or without notice or lapse of time) in the creation of any encumbrance or
restriction on any of the Subject Securities pursuant to, any contract to which
Stockholder is a party or by which Stockholder or any of his affiliates or
properties is or may be bound or affected.
4
<PAGE>
(B) The execution and delivery of this Voting Agreement and the
Proxy by Stockholder do not, and the performance of this Voting Agreement and
the Proxy by Stockholder will not, require any consent or approval of any
Person.
6.3 TITLE TO SECURITIES. As of the date of this Voting Agreement: (a)
Stockholder holds of record (free and clear of any encumbrances or restrictions
other than pursuant to standard margin agreements between Stockholder and any
broker-dealer) the number of outstanding shares of Company Capital Stock set
forth under the heading "Shares Held of Record" on the signature page hereof;
(b) Stockholder holds (free and clear of any encumbrances or restrictions other
than pursuant to standard margin agreements between Stockholder and any
broker-dealer) the options, warrants and other rights to acquire shares of
Company Capital Stock set forth under the heading "Options and Other Rights" on
the signature page hereof; (c) Stockholder Owns the additional securities of the
Company set forth under the heading "Additional Securities Beneficially Owned"
on the signature page hereof; and (d) Stockholder does not directly or
indirectly Own any shares of capital stock or other securities of the Company,
or any option, warrant or other right to acquire (by purchase, conversion or
otherwise) any shares of capital stock or other securities of the Company, other
than the shares and options, warrants and other rights set forth on the
signature page hereof.
6.4 ACCURACY OF REPRESENTATIONS. The representations and warranties
contained in this Voting Agreement are accurate in all respects as of the date
of this Voting Agreement, will be accurate in all respects at all times through
the Expiration Date and will be accurate in all respects as of the date of the
consummation of the Merger as if made on that date.
SECTION 7. ADDITIONAL COVENANTS OF STOCKHOLDER
7.1 FURTHER ASSURANCES. From time to time and without additional
consideration, Stockholder shall execute and deliver, or cause to be executed
and delivered, such additional transfers, assignments, endorsements, proxies,
consents and other instruments, and take such further actions, as Parent may
request for the purpose of carrying out and furthering the intent of this Voting
Agreement.
7.2 LEGEND. Immediately after the execution of this Voting Agreement
(and from time to time upon the acquisition by Stockholder of Ownership of any
shares of Company Capital Stock prior to the Expiration Date), Stockholder shall
use commercially reasonable efforts to ensure that each certificate evidencing
any outstanding shares of Company Capital Stock or other securities of the
Company Owned by Stockholder bears a legend in the following form:
THE SECURITY OR SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
SOLD, EXCHANGED OR OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT IN
COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE VOTING AGREEMENT DATED AS
OF SEPTEMBER 7, 2000, BETWEEN THE
5
<PAGE>
HOLDER AND EXELIXIS, INC. AS IT MAY BE AMENDED, A COPY OF WHICH IS ON FILE
AT THE PRINCIPAL EXECUTIVE OFFICES OF THE ISSUER.
SECTION 8. MISCELLANEOUS
8.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations, warranties, covenants and agreements made by Stockholder in
this Voting Agreement shall survive (i) the consummation of the Merger, (ii) any
termination of the Reorganization Agreement and (iii) the Expiration Date,
except that Stockholder shall not be required to vote shares of Company Capital
Stock pursuant to Section 3.1 hereof from and after the Expiration Date.
8.2 EXPENSES. All costs and expenses incurred in connection with the
transactions contemplated by this Voting Agreement shall be paid by the party
incurring such costs and expenses.
8.3 NOTICES. Any notice or other communication required or permitted to
be delivered to either party under this Voting Agreement shall be in writing and
shall be deemed properly delivered, given and received when delivered (by hand,
by registered mail, by courier or express delivery service or by facsimile) to
the address or facsimile telephone number set forth beneath the name of such
party below (or to such other address or facsimile telephone number as such
party shall have specified in a written notice given to the other party):
if to Stockholder:
at the address set forth below Stockholder's signature on the
signature page hereof
if to Parent or Merger Sub: EXELIXIS, INC.
170 Harbor Way
South San Francisco, CA 94083
Attn: Chief Financial Officer
Facsimile: (650) 837-8300
ATHENS ACQUISITION CORP.
c/o Exelixis, Inc.
170 Harbor Way
South San Francisco, CA 94083
Attn: Chief Financial Officer
Facsimile: (650) 837-8300
IN EACH CASE WITH A COPY TO:
Cooley Godward LLP
6
<PAGE>
Five Palo Alto Square
3000 El Camino Real
Palo Alto, CA 94306
Attn: Robert L. Jones and Suzanne
Sawochka Hooper
Facsimile: (650) 849-7400
8.4 SEVERABILITY. If any provision of this Voting Agreement or any part
of any such provision is held under any circumstances to be invalid or
unenforceable in any jurisdiction, then (a) such provision or part thereof
shall, with respect to such circumstances and in such jurisdiction, be deemed
amended to conform to applicable laws so as to be valid and enforceable to the
fullest possible extent, (b) the invalidity or unenforceability of such
provision or part thereof under such circumstances and in such jurisdiction
shall not affect the validity or enforceability of such provision or part
thereof under any other circumstances or in any other jurisdiction and (c) the
invalidity or unenforceability of such provision or part thereof shall not
affect the validity or enforceability of the remainder of such provision or the
validity or enforceability of any other provision of this Voting Agreement. Each
provision of this Voting Agreement is separable from every other provision of
this Voting Agreement, and each part of each provision of this Voting Agreement
is separable from every other part of such provision.
8.5 ENTIRE AGREEMENT. This Voting Agreement, the Proxy and any other
documents delivered by the parties in connection herewith constitute the entire
agreement between the parties with respect to the subject matter hereof and
thereof and supersede all prior agreements and understandings between the
parties with respect thereto. No addition to or modification of any provision of
this Voting Agreement shall be binding upon either party unless made in writing
and signed by both parties.
8.6 ASSIGNMENT; BINDING EFFECT. Except as provided herein, neither this
Voting Agreement nor any of the interests or obligations hereunder may be
assigned or delegated by 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 Voting Agreement shall be binding upon Stockholder
and his heirs, estate, executors, personal representatives, 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 2 or
elsewhere in this Voting Agreement, this Voting Agreement shall be binding upon
any Person to whom any Subject Securities are transferred. Nothing in this
Voting Agreement is intended to confer on any Person (other than Parent and its
successors and assigns) any rights or remedies of any nature.
8.7 SPECIFIC PERFORMANCE. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Voting Agreement or
the Proxy was not performed in accordance with its specific terms or was
otherwise breached. Stockholder agrees that, in the event of any breach or
threatened breach by Stockholder of any covenant or obligation contained in this
Voting 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
7
<PAGE>
obligation and (b) an injunction restraining such breach or threatened breach.
Stockholder 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 8.7,
and Stockholder irrevocably waives any right he may have to require the
obtaining, furnishing or posting of any such bond or similar instrument.
8.8 NON-EXCLUSIVITY. The rights and remedies of Parent under this Voting
Agreement are not exclusive of or limited by any other rights or remedies which
it may have, whether at law, in equity, by contract or otherwise, all of which
shall be cumulative (and not alternative). Without limiting the generality of
the foregoing, the rights and remedies of Parent under this Voting Agreement,
and the obligations and liabilities of Stockholder under this Voting Agreement,
are in addition to their respective rights, remedies, obligations and
liabilities under common law requirements and under all applicable statutes,
rules and regulations. Nothing in this Voting Agreement shall limit any of
Stockholder's obligations, or the rights or remedies of Parent, under any
Affiliate Agreement between Parent and Stockholder; and nothing in any such
Affiliate Agreement shall limit any of Stockholder's obligations, or any of the
rights or remedies of Parent, under this Voting Agreement.
8.9 GOVERNING LAW; VENUE.
(A) This Voting Agreement and the Proxy shall be construed in
accordance with, and governed in all respects by, the laws of the State of
Delaware (without giving effect to principles of conflicts of laws).
(B) Any legal action or other legal proceeding relating to this
Voting Agreement or the Proxy or the enforcement of any provision of this Voting
Agreement or the Proxy may be brought or otherwise commenced in any state or
federal court located in the State of California. Stockholder:
(i) expressly and irrevocably consents and submits to the
jurisdiction of each state and federal court located in the State of
California (and each appellate court located in the State of California),
in connection with any such legal proceeding;
(ii) agrees that service of any process, summons, notice or document
by U.S. mail addressed to him at the address set forth in Section 8.3
shall constitute effective service of such process, summons, notice or
document for purposes of any such legal proceeding;
(iii)agrees that each state and federal court located in the State
of California shall be deemed to be a convenient forum; and
(iv) agrees not to assert (by way of motion, as a defense or
otherwise), in any such legal proceeding commenced in any state or federal
court located in the State of California, any claim that Stockholder is
not subject personally to the jurisdiction of such court, that such legal
proceeding has been brought in an inconvenient forum, that the
8
<PAGE>
venue of such proceeding is improper or that this Voting Agreement or the
subject matter of this Voting Agreement may not be enforced in or by such
court.
Nothing contained in this Section 8.9 shall be deemed to limit or otherwise
affect the right of Parent to commence any legal proceeding or otherwise proceed
against Stockholder in any other forum or jurisdiction.
(C) STOCKHOLDER IRREVOCABLY WAIVES THE RIGHT TO A JURY TRIAL IN
CONNECTION WITH ANY LEGAL PROCEEDING RELATING TO THIS VOTING AGREEMENT OR THE
PROXY OR THE ENFORCEMENT OF ANY PROVISION OF THIS VOTING AGREEMENT OR THE PROXY.
8.10 COUNTERPARTS. This Voting Agreement may be executed by the parties
in separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute one and the
same instrument.
8.11 CAPTIONS. The captions contained in this Voting Agreement are for
convenience of reference only, shall not be deemed to be a part of this Voting
Agreement and shall not be referred to in connection with the construction or
interpretation of this Voting Agreement.
8.12 ATTORNEYS' FEES. If any legal action or other legal proceeding
relating to this Voting Agreement or the enforcement of any provision of this
Voting Agreement is brought against Stockholder, the prevailing party shall be
entitled to recover reasonable attorneys' fees, costs and disbursements (in
addition to any other relief to which the prevailing party may be entitled).
8.13 WAIVER. No failure on the part of Parent to exercise any power,
right, privilege or remedy under this Voting Agreement, and no delay on the part
of Parent in exercising any power, right, privilege or remedy under this Voting
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 Voting Agreement, or any power, right,
privilege or remedy of Parent under this Voting 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.
8.14 CONSTRUCTION.
(A) For purposes of this Voting Agreement, whenever the context
requires: the singular number shall include the plural, and vice versa; the
masculine gender shall include the feminine and neuter genders; the feminine
gender shall include the masculine and neuter genders; and the neuter gender
shall include masculine and feminine genders.
9
<PAGE>
(B) The parties agree that any rule of construction to the effect
that ambiguities are to be resolved against the drafting party shall not be
applied in the construction or interpretation of this Voting Agreement.
(C) As used in this Voting Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words "without
limitation."
(D) Except as otherwise indicated, all references in this Voting
Agreement to "Sections" and "Exhibits" are intended to refer to Sections of this
Voting Agreement and Exhibits to this Voting Agreement.
10
<PAGE>
IN WITNESS WHEREOF, Parent and Stockholder have caused this Voting
Agreement to be executed as of the date first written above.
EXELIXIS, INC.
By:
---------------------------------
Name: George A. Scangos
Title: President and Chief Executive
Officer
STOCKHOLDER
---------------------------------
(SIGNATURE)
---------------------------------
(PRINT NAME)
Address:
----------------------------
----------------------------
----------------------------
Facsimile:
--------------------------
SHARES HELD OPTIONS AND ADDITIONAL SECURITIES
OF RECORD OTHER RIGHTS BENEFICIALLY OWNED
----------- ------------ ---------------------
11
<PAGE>
EXHIBIT A
FORM OF IRREVOCABLE PROXY
The undersigned stockholder of AGRITOPE, INC., a Delaware corporation (the
"Company"), hereby irrevocably (to the fullest extent permitted by law) appoints
and constitutes GEORGE SCANGOS, PH.D., GLEN Y. SATO and EXELIXIS, INC., a
Delaware corporation ("Parent"), and each of them, the attorneys and proxies of
the undersigned with full power of substitution and resubstitution, to the full
extent of the undersigned's rights with respect to (i) the outstanding shares of
capital stock of the Company owned of record by the undersigned as of the date
of this proxy, which shares are specified on the final page of this proxy and
(ii) any and all other shares of capital stock of the Company which the
undersigned may acquire on or after the date hereof. (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 the undersigned agrees that no subsequent
proxies will be given with respect to any of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted in
connection with the Voting Agreement, dated as of the date hereof, between
Parent and the undersigned (the "Voting Agreement"), and is granted in
consideration of Parent entering into the Agreement and Plan of Merger and
Reorganization, dated as of the date hereof, among Parent, Athens Acquisition
Corp. and the Company (the "Reorganization Agreement").
The attorneys and proxies named above will be empowered, and may exercise
this proxy, to vote the Shares at any time until the earlier to occur of the
valid termination of the Reorganization Agreement or the effective time of the
merger contemplated thereby (the "Merger") at any meeting of the stockholders of
the Company, however called, or in connection with any solicitation of written
consents from stockholders of the Company:
(I) in favor of the approval and adoption of the Reorganization
Agreement and the approval of the Merger on the terms and conditions set forth
therein, and in favor of each of the other actions contemplated by the
Reorganization Agreement;
(II) against any action or agreement that to the actual
knowledge of Stockholder would result in a material breach of any covenant,
representation or warranty or any other obligation or agreement of the Company
under the Reorganization Agreement; and
(III) against the following actions (other than the Merger and
the transactions contemplated by the Reorganization Agreement): (A) any
extraordinary corporate transaction, such as a merger, consolidation or other
business combination involving the Company or any subsidiary of the Company; (B)
a sale, lease or transfer of a material amount of assets of the Company or any
subsidiary of the Company or a reorganization, recapitalization, dissolution or
liquidation of the Company or any subsidiary of the Company; or (C) (1) any
change in a majority of the board of directors of the Company; (2) any amendment
of the Company's Certificate of Incorporation; (3) any other material change in
the present capitalization of the Company or any amendment of the Company's
corporate structure; or (4) any other action which
<PAGE>
to the actual knowledge of Stockholder is intended, or could reasonably be
expected to impede, interfere with, delay, postpone, discourage or adversely
affect the contemplated economic benefits to Parent of the Merger or any of the
other transactions contemplated by the Reorganization Agreement or the Voting
Agreement.
The undersigned may vote the Shares on all other matters.
This proxy shall be binding upon the heirs, estate, executors, personal
representatives, successors and assigns of the undersigned (including any
transferee of any of the Shares).
If any provision of this proxy or any part of any such provision is held
under any circumstances to be invalid or unenforceable in any jurisdiction, then
(a) such provision or part thereof shall, with respect to such circumstances and
in such jurisdiction, be deemed amended to conform to applicable laws so as to
be valid and enforceable to the fullest possible extent, (b) the invalidity or
unenforceability of such provision or part thereof under such circumstances and
in such jurisdiction shall not affect the validity or enforceability of such
provision or part thereof under any other circumstances or in any other
jurisdiction and (c) the invalidity or unenforceability of such provision or
part thereof shall not affect the validity or enforceability of the remainder of
such provision or the validity or enforceability of any other provision of this
proxy. Each provision of this proxy is separable from every other provision of
this proxy, and each part of each provision of this proxy is separable from
every other part of such provision.
<PAGE>
This proxy shall terminate upon the earlier of the valid termination of
the Reorganization Agreement or the effective time of the Merger.
Dated: September 7, 2000.
STOCKHOLDER
-----------------------------------------
(SIGNATURE)
-----------------------------------------
(PRINT NAME)
NUMBER OF SHARES OF CAPITAL STOCK OF
THE COMPANY OWNED OF RECORD AS OF THE
DATE OF THIS PROXY:
------------------------------------------
