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VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made as of the 7th day of
September, 2000 by and between SAFLINK Corporation, a Delaware corporation
("Company"), and the person or entity whose name appears on the signature page
hereto ("Stockholder");
WHEREAS, Stockholder owns the number of shares of Company's capital
stock, set forth on the signature page hereto (all of such shares now owned and
which may hereafter be acquired by Stockholder from any source prior to the
termination of this Agreement, the "Company Shares");
WHEREAS, Jotter Technologies Inc. ("Jotter") and the Company have
entered into that certain Agreement and Plan of Reorganization among Jotter, the
Company and certain shareholders of Jotter of even date herewith (the "Merger
Agreement") pursuant to which a subsidiary of the Company ("Merger Subsidiary")
will be merged with and into Jotter (the "Merger") (capitalized terms used and
not defined herein have the respective meaning ascribed to them in the Merger
Agreement); and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Company has required that Stockholder agree, and Stockholder has
agreed, to enter into this Agreement.
NOW THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Definitions. For purposes of this Agreement, "Person" shall mean an
individual, corporation, partnership, joint venture, association, trust,
unincorporated organization or other entity. "Beneficial ownership,"
"beneficially own" and similar terms shall refer to beneficial ownership within
the meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended,
and Rule 13 d-3 thereunder.
2. Provisions Concerning the Company Shares. During the period
commencing on the date hereof and continuing until the first to occur of the
Effective Time or termination of the Merger Agreement in accordance with its
terms, Stockholder agrees that Stockholder shall, at any meeting of the holders
of Company Shares, however called, or in connection with any written consent of
the holders of Company Shares, vote (or cause to be voted) the Company Shares
(if any) then held of record or beneficially owned by such Stockholder, (a) in
favor of the Merger, the execution and delivery by Company of the Merger
Agreement and the Plan of Merger and the approval of the terms thereof and each
other action contemplated by the Merger Agreement and any actions required in
furtherance thereof, (b) against any action or agreement that would result in a
breach in any material respect of any covenant, representation or warranty of
Company under the Merger Agreement, (c) in favor of the adoption of a new Stock
Option Plan of the Company ("Plan"), (d) in favor of amending the Company's
Certificate of Incorporation to increase the Company's authorized common stock
to 100,000,000 shares ("Amendment of Certificate"), and (e) in favor of each
other action contemplated by this Agreement and any actions required in
furtherance hereof. Stockholder agrees not to enter into
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any agreement or understanding with any Person the effect of which would be
inconsistent or violative of the provisions and agreements contained in this
Section 2.
3. Covenants, Representations and Warranties of Stockholder.
Stockholder hereby represents and warrants to and agrees with the Company as
follows:
(a) Ownership of Company Shares. Stockholder is the record and
beneficial owner of the Company Shares set forth on the signature page
hereto. On the date hereof, Stockholder's Company Shares constitute all
of the capital stock of Company that Stockholder has the right to vote
with respect to the transactions contemplated by the Merger Agreement
and with respect to the adoption of the Plan and Amendment of
Certificate. Stockholder has sole voting power and sole power to issue
instructions with respect to the matters set forth in Section 2 hereof,
sole power of disposition, sole power of conversion, sole power to
demand dissenter's rights and sole power to agree to all of the matters
set forth in this Agreement, in each case with respect to all of
Stockholder's Company Shares, with no limitations, qualifications or
restrictions on such rights, subject to applicable securities laws and
the terms of this Agreement.
(b) Power; Binding Agreement. Stockholder has the legal
capacity, power and authority to enter into and perform all of its
obligations under this Agreement. The execution, delivery and
performance of this Agreement by Stockholder will not violate any other
agreement to which the Stockholder is a party including, without
limitation, any voting agreement, proxy arrangement, pledge agreement,
shareholders' agreement or voting trust. This Agreement has been duly
and validly executed and delivered by Stockholder and constitutes a
valid and binding agreement of Stockholder, enforceable against
Stockholder in accordance with its terms. There is no beneficiary or
holder of a voting trust certificate or other interest of any trust of
which Stockholder is a trustee whose consent is required for the
execution and delivery of this Agreement or the consummation by
Stockholder of the transactions contemplated hereby.
(c) No Conflicts. None of the execution and delivery of this
Agreement by Stockholder, the consummation by Stockholder of the
actions contemplated hereby or compliance by Stockholder with any of
the provisions hereof will (i) conflict with or result in any breach of
any applicable organizational documents applicable to Stockholder, (ii)
result in a violation or breach of, or constitute (with or without
notice or lapse of time or both) a default (or give rise to any third
party right of termination, cancellation, modification or acceleration
(herein collectively, a "Default")) under any of the terms, conditions
or provisions of any note, loan agreement, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding, agreement or
other instrument or obligation of any kind to which Stockholder is a
party or by which Stockholder or any of its properties or assets may be
bound, (iii) violate any order, writ, injunction, decree, judgment,
order, statute, rule or regulation applicable to Stockholder or any of
its properties or assets or (iv) require any filing with,
authorization, consent or approval of (herein collectively, a
"Consent"), any state or federal authority; which Default or violation
or the failure to obtain any Consent, in the case of clauses (ii),
(iii) and (iv) above, would have a material adverse effect on the
ability of Stockholder to perform Stockholder's obligations hereunder.
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(d) No Voting Agreements. Except as permitted by this
Agreement, the Company Shares of Stockholder and the certificates
representing such Company Shares are now, and at all times during the
term hereof will be, held by Stockholder, or by a nominee or custodian
for the benefit of Stockholder, free and clear of all proxies, voting
trusts or agreements, understandings or arrangements or any other
encumbrances limiting or granting to any other person the right to vote
the Company Shares, except for any such encumbrances or proxies arising
hereunder.
(e) No Solicitation. Stockholder shall not, directly or
indirectly, solicit (including by way of furnishing information),
initiate, facilitate or respond to any inquiries or the making of any
proposal or offer by any Person (other than the Company or any
affiliate of the Company) concerning any merger, consolidation,
business combination, tender offer, exchange offer, sale of assets,
sale of Company Shares or capital stock or debt securities or similar
transactions involving Company (or any subsidiary, division or
operating or principal business unit of Company), or enter into any
agreement, arrangement or understanding with respect to such a
transaction. Stockholder further agrees that, if Stockholder receives
any such inquiry or proposal, then Stockholder shall promptly inform
the Company of the existence thereof and the nature of the inquiry or
terms of the proposal, in each case in reasonable detail; and
Stockholder will immediately cease (and will ensure that his or her
Representatives cease) and cause to be terminated any existing
activities, discussions or negotiations with any parties conducted
heretofore with respect to any of the foregoing.
(f) Non-Interference. Stockholder shall not, directly or
indirectly, take any action that would make any representation or
warranty of Stockholder contained herein untrue or incorrect or have
the effect of preventing or disabling Stockholder from performing its
obligations under this Agreement.
(g) Reliance by the Company. Stockholder understands and
acknowledges that the Company is entering into the Merger Agreement
upon Stockholder's execution and delivery of this Agreement.
(h) 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 dissenter's
rights and any similar rights relating to the Merger or any related
transaction that Stockholder or any other Person may have by virtue of
Stockholder's beneficial or record ownership of any shares of Company
capital stock.
4. Covenants, Representations and Warranties of the Company. The
Company hereby represents and warrants to each Stockholder as follows:
(a) Power; Binding Agreement. The Company has the corporate
power and authority to enter into and perform all of its obligations
under this Agreement. The execution, delivery and performance of this
Agreement by the Company will not violate any other agreement to which
it is a party. This Agreement has been duly and validly executed and
delivered by the Company and constitutes a valid and binding agreement
of the Company, enforceable against the Company in accordance with its
terms.
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(b) No Conflicts. None of the execution and delivery of this
Agreement by the Company, the consummation by the Company of the
transactions contemplated hereby or compliance by the Company with any
of the provisions hereof shall (i) conflict with or result in any
breach of any applicable organizational documents applicable to the
Company, (ii) result in a violation or breach of, or constitute (with
or without notice or lapse of time or both) a default (or give rise to
any third party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or
provisions of any note, loan agreement, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding, agreement or
other instrument or obligation of any kind to which the Company is a
party or by which the Company or any of its properties or assets may be
bound, (iii) violate any order, writ, injunction, decree, judgment,
order, statute, rule or regulation applicable to the Company or any of
its properties or assets or (iv) require any filing with,
authorization, consent or approval of, any state or federal authority,
except as set forth in the Merger Agreement.
5. Further Assurances. From time to time, at the Company's request and
without further consideration, Stockholder shall execute and deliver such
additional documents and take all such further lawful action as may be necessary
or desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
6. Stop Transfer. Stockholder agrees that it shall not request that
Company or any other Person register the transfer (by book-entry or otherwise)
of any certificate or uncertificated interest representing any of Stockholder's
Company Shares, unless such transfer is made in compliance with this Agreement
and unless the transferee agrees in writing, in form and substance satisfactory
to the Company, to be bound by the provisions hereof for the benefit of the
Company.
7. Termination. This Agreement shall terminate upon the earlier to
occur of (a) the termination of the Merger Agreement in accordance with its
terms, (b) the written agreement of the parties hereto to terminate this
Agreement, or (c) the Effective Time of the Merger.
8. Confidentiality. Stockholder recognizes that successful consummation
of the transactions contemplated by this Agreement may be dependent upon
confidentiality with respect to the matters referred to herein. In this
connection, pending public disclosure thereof, each Stockholder agrees that
Stockholder shall not, and Stockholder shall use its best efforts to cause its
Representatives not to, disclose or discuss such matters with anyone not a party
to this Agreement (other than Stockholder's Representatives, if any) without the
prior written consent of the Company, except for disclosures which Stockholder's
counsel advises are necessary in order to fulfill Stockholder's obligations
imposed by law, in which event Stockholder shall give prior notice of such
disclosure to the Company as promptly as practicable and in any event prior to
the time any such disclosure is made.
9. Miscellaneous.
(a) Entire Agreement. Except as otherwise provided herein or
in the Merger Agreement, this Agreement contains the entire
understanding of the parties with respect to the
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matters covered herein and supersedes all prior agreements and
understandings, written or oral, between the parties relating to the
subject matter hereof.
(b) Binding Agreement. This Agreement and the obligations
hereunder shall attach to the Company Shares and shall be binding upon
any Person to which record or beneficial ownership of such Company
Shares shall pass, whether by operation of law or otherwise.
Notwithstanding any transfer of Company Shares, the transferor shall
remain liable for the performance of all obligations under this
Agreement of the transferor.
(c) Assignment. This Agreement shall not be assignable by
operation of law or otherwise without the prior written consent of the
other parties, provided that the Company may assign, in its sole
discretion, its rights and obligations hereunder to any wholly-owned
direct or indirect subsidiary of the Company.
(d) Amendments, Waivers, Etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or
terminated, except upon the execution and delivery of a written
agreement executed by the parties hereto.
(e) Notices. Unless otherwise provided, any notice, request,
demand or other communication required or permitted under this
Agreement shall be given in writing and shall be deemed effectively
given upon personal delivery to the party to be notified, or when sent
by telecopier (with receipt confirmed), or overnight courier service,
or upon deposit with the United States Post Office, by registered or
certified mail, postage prepaid and addressed as follows (or at such
other address as a party may designate by notice to the other):
If to the Company:
SAFLINK Corporation
18650 N.E. 67th Court
Suite 210
Redmond, WA 98052
Attention: Chief Financial Officer
Telecopier: (425) 497-1778
with a copy to:
Baker & McKenzie
815 Connecticut Avenue, N.W.
Washington, D.C. 20006
Attention: Thomas J. Egan, Jr., Esq.
Telecopier: (202) 452-7074
If to the Stockholder, to the address set forth on the
signature page hereto.
(f) Severability. If one or more provisions of this Agreement
are held to be unenforceable, invalid or void by a court of competent
jurisdiction, such provision shall be
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excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision were so excluded and shall be
enforceable in accordance with its terms.
(g) Specific Performance. Each of the parties hereto
recognizes and acknowledges that a breach by it of any covenants or
agreements contained in this Agreement will cause the other party to
sustain damages for which it would not have an adequate remedy at law
for money damages, and, therefore, in the event of any such breach, the
aggrieved party shall be entitled to the remedy of specific performance
of such covenants and agreements and injunctive and other equitable
relief in addition to any other remedy to which it may be entitled, at
law or in equity.
(h) Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof
at law or in equity shall be cumulative and not alternative, and the
exercise of any right, power or remedy by any party shall not preclude
the simultaneous or later exercise of any other right, power or remedy
by such party.
(i) No Waiver. The observance of any term of this Agreement
may be waived (either generally or in a particular instance and either
retroactively or prospectively) only with the written consent of the
party against whom such waiver is sought to be enforced. No waiver by
either party of any default with respect to any provision, condition or
requirement hereof shall be deemed to be a continuing waiver in the
future thereof or a waiver of any other provision, condition or
requirement hereof; nor shall any delay or omission of either party to
exercise any right hereunder in any manner impair the exercise of any
such right accruing to it thereafter.
(j) No Third Party Beneficiaries. This Agreement is not
intended to be for the benefit of, and shall not be enforceable by, any
Person that is not a party hereto.
(k) Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware, without
giving effect to the principles of conflicts of law thereof.
(l) Titles and Subtitles. The titles and subtitles used in
this Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement. Any reference
in this Agreement to a statutory provision or rule or regulation
promulgated thereunder shall be deemed to include any similar successor
statutory provision or rule or regulation promulgated thereunder.
(m) Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
SAFLINK CORPORATION
By: /s/ James W. Shepperd
Name: James W. Shepperd
Title: Chief Financial Officer
RMS LIMITED PARTNERSHIP
By: /s/ Richard W. Baker
Name: Richard W. Baker
Title: Secretary and Treasurer of
Crystal Diamond, Inc.
General Partner to RMS Limited
Partnership
Address:
Shares Beneficially Owned (indicate class or
series of stock and manner held, if not record
owner):
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