Exhibit 9.1
FORM OF VOTING AGREEMENT
This Voting Agreement ("Agreement") is entered into as of December 15, 2000,
by and between NVIDIA Corporation, a Delaware corporation (the "Purchaser"),
and ("Shareholder").
Recitals
A. Shareholder is a holder of record and the "beneficial owner" (within the
meaning of Rule 13d-3 under the Securities Exchange Act of 1934) of certain
shares of common stock of 3dfx Interactive, Inc., a California corporation (the
"Company").
B. The Purchaser, Titan Acquisition Corp. No. 2 and the Company are entering
into an Asset Purchase Agreement of even date herewith (the "Purchase
Agreement"), which provides (subject to the conditions set forth therein) for
the purchase of certain assets of the Company by the Purchaser from the Company
(the "Acquisition"). The Purchase Agreement also contemplates that the Company
will be voluntarily winding up and dissolving (the "Winding Up and
Dissolution") pursuant to the California Corporations Code following the
consummation of the Acquisition.
C. In order to induce the Purchaser to enter into the Purchase Agreement,
Shareholder is entering into this Agreement. If Shareholder also serves as a
director or officer of the Company, Shareholder is executing this Agreement
solely in his individual capacity and not in his capacity as a director or
officer of the Company.
Agreement
The parties to this Agreement, intending to be legally bound, agree as
follows:
Section 1. Certain Definitions
For purposes of this Agreement:
(a) The terms "Acquisition Proposal" and "Acquisition Transaction" shall
have the respective meanings assigned to those terms in the Purchase
Agreement.
(b) "Company Common Stock" shall mean the common stock, no par value per
share, of the Company.
(c) "Expiration Date" shall mean the earlier of the date upon which the
Purchase Agreement is validly terminated, or the date upon which the
Acquisition is consummated.
(d) Shareholder shall be deemed to "Own" or to have acquired "Ownership"
of a security if Shareholder: (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.
(e) "Person" shall mean any (i) individual, (ii) corporation, limited
liability company, partnership or other entity, or (iii) governmental
authority.
(f) "Subject Company Securities" shall mean: (i) all securities of the
Company (including all shares of Company Common Stock and all options,
warrants and other rights to acquire shares of Company Common Stock) Owned
by Shareholder as of the date of this Agreement; and (ii) all additional
securities of the Company (including all additional shares of Company
Common Stock and all additional options, warrants and other rights to
acquire shares of Company Common Stock) of which Shareholder acquires
Ownership during the period from the date of this Agreement through the
Expiration Date.
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(g) A Person shall be deemed to have 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 to any Person other than the Purchaser; (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 to any Person other
than the Purchaser; or (iii) reduces such Person's beneficial ownership of
such security.
Section 2. Transfer of Subject Company Securities and Voting Rights
2.1 Restriction on Transfer of Subject Company Securities. Subject to
Section 2.3, during the period from the date of this Agreement through the
Expiration Date, Shareholder shall not, directly or indirectly, cause or permit
any Transfer of any of the Subject Company Securities to be effected.
2.2 Restriction on Transfer of Voting Rights. During the period from the
date of this Agreement through the Expiration Date, Shareholder shall ensure
that: (a) none of the Subject Company 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 Company
Securities.
2.3 Permitted Transfers. Section 2.1 shall not prohibit a transfer of
Company Common Stock by Shareholder (i) to any member of his immediate family,
or to a trust for the benefit of Shareholder or any member of his immediate
family, (ii) upon the death of Shareholder, (iii) if Shareholder is a
partnership or limited liability company, to one or more partners or members of
Shareholder or to an affiliated corporation under common control with
Shareholder or (iv) that Shareholder cannot prevent (it being understood that
Shareholder shall use his or its best efforts to prevent transfers of Company
Common Stock other than pursuant to clause "(i)" or "(iii)" of this sentence);
provided, however, that a transfer referred to in clause "(i)" or "(iii)" of
this sentence shall be permitted only if, as a precondition to such transfer,
the transferee agrees in a writing, reasonably satisfactory in form and
substance to the Purchaser, to be bound by the terms of this Agreement.
Section 3. Voting of Shares
3.1 Voting Covenant. Shareholder hereby agrees that, prior to the
Expiration Date, at any meeting of the shareholders of the Company, however
called, and in any written action by consent of shareholders of the Company,
unless otherwise directed in writing by the Purchaser, Shareholder shall cause
the Subject Company Securities to be voted:
(a) in favor of the Acquisition, the approval of the Purchase Agreement
and the principal terms thereof, in favor of each of the other actions
contemplated by the Purchase Agreement and in favor of any action in
furtherance of any of the foregoing;
(b) in favor of the Winding Up and Dissolution;
(c) against any action or agreement that would result in a breach of any
representation, warranty, covenant or obligation of the Company in the
Purchase Agreement; and
(d) against the following actions (other than the Acquisition, the
Winding Up and Dissolution and the other actions contemplated by the
Purchase 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) any sale, lease or transfer of a
material amount of assets of the Company or any subsidiary of the Company;
(C) any reorganization, recapitalization, dissolution or liquidation of the
Company or any subsidiary of the Company; (D) any change in a majority of
the board of directors of the Company; (E) any amendment to the Company's
certificate of incorporation or bylaws; (F) any material change in the
capitalization of the Company or the Company's corporate structure; and (G)
any other action which is intended, or could reasonably be expected, to
impede, interfere with, delay, postpone, discourage or adversely affect the
Acquisition or any of the other transactions contemplated by the Purchase
Agreement or this Agreement.
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Prior to the earlier to occur of the valid termination of the Purchase
Agreement or the consummation of the Acquisition, Shareholder shall not enter
into any agreement or understanding with any Person to vote or give
instructions in any manner inconsistent with clause "(a)", "(b)", "(c)" or
"(d)" of the preceding sentence.
3.2 Proxy; Further Assurances.
(a) (i) Contemporaneously with the execution of this Agreement,
Shareholder shall deliver to the Purchaser a proxy in the form attached to
this Agreement as Exhibit A, which shall be irrevocable to the fullest
extent permitted by law at all times prior to the Expiration Date with
respect to the shares referred to therein (the "Proxy"); and (ii) as soon
as practicable after the execution of the Purchase Agreement (but in no
event later than five (5) business days), Shareholder shall use best
efforts to cause to be delivered to the Purchaser an additional proxy (in
the form attached hereto as Exhibit A) executed on behalf of the record
owner of any outstanding shares of Company Common Stock that are owned
beneficially (within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934), but not of record, by Shareholder.
(b) Shareholder shall, at his or its own expense, perform such further
acts and execute such further proxies and other documents and instruments
as may reasonably be required to vest in the Purchaser the power to carry
out and give effect to the provisions of this Agreement.
3.3 Fiduciary Duties. This Agreement is intended to bind Shareholder only
with respect to the specific matters set forth herein, and shall not prohibit
Shareholder from acting in his capacity as an officer or director of the
Company in the manner required by Shareholder's fiduciary duties as an officer
or director of the Company.
Section 4. Waiver of Dissenters' Rights
Shareholder hereby irrevocably and unconditionally waives, and agrees to
cause to be waived and to prevent the exercise of, any dissenters' rights and
any similar rights relating to the Acquisition or any related transaction that
Shareholder or any other Person may have by virtue of the ownership of any
outstanding shares of Company Common Stock Owned by Shareholder.
Section 5. No Solicitation
Subject to Section 3.3, Shareholder agrees that, during the period from the
date of this Agreement through the Expiration Date, Shareholder shall not,
directly or indirectly, and Shareholder shall use best efforts to ensure that
his or its Representatives (as defined in the Purchase Agreement) do not,
directly or indirectly: (i) solicit, initiate, encourage, induce or facilitate
the making, submission or announcement of any Acquisition Proposal or take any
action that could reasonably be expected to lead to an Acquisition Proposal;
(ii) furnish any information regarding the Company or any subsidiary of the
Company to any Person in connection with or in response to an Acquisition
Proposal or an inquiry or indication of interest that could reasonably be
expected to lead to an Acquisition Proposal; (iii) engage in discussions or
negotiations with any Person with respect to any Acquisition Proposal; (iv)
approve, endorse or recommend any Acquisition Proposal; or (v) enter into any
letter of intent or similar document or any agreement or understanding
contemplating or otherwise relating to any Acquisition Transaction. Shareholder
shall immediately cease and discontinue, and Shareholder shall use best efforts
to ensure that his or its Representatives immediately cease and discontinue,
any existing discussions with any Person that relate to any Acquisition
Proposal.
Section 6. Representations and Warranties of Shareholder
Shareholder hereby represents and warrants to the Purchaser as follows:
6.1 Authorization, etc. Shareholder has the absolute and unrestricted right,
power, authority and capacity to execute and deliver this Agreement and the
Proxy and to perform his or its obligations hereunder
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and thereunder. This Agreement and the Proxy have been duly executed and
delivered by Shareholder and constitute legal, valid and binding obligations of
Shareholder, enforceable against Shareholder 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. If Shareholder is
a corporation, then Shareholder is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction in which it
was incorporated. If Shareholder is a general or limited partnership, then
Shareholder is a partnership duly organized, validly existing and in good
standing (with respect to jurisdictions that recognize such concept) under the
laws of the jurisdiction in which it was organized. If Shareholder is a limited
liability company, then Shareholder is a limited liability company duly
organized, validly existing and in good standing under the laws of the
jurisdiction in which it was organized.
6.2 No Conflicts or Consents.
(a) The execution and delivery of this Agreement and the Proxy by
Shareholder do not, and the performance of this Agreement and the Proxy by
Shareholder will not: (i) to the best of the Shareholder's knowledge,
conflict with or violate any law, rule, regulation, order, decree or
judgment applicable to Shareholder or by which he or it or any of his or
its 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 Company Securities
pursuant to, any contract to which Shareholder is a party or by which
Shareholder or any of his or its affiliates or properties is or may be
bound or affected.
(b) The execution and delivery of this Agreement and the Proxy by
Shareholder do not, and the performance of this Agreement and the Proxy by
Shareholder will not, require any consent or approval of any Person.
6.3 Title to Securities. As of the date of this Agreement: (a) Shareholder
holds of record (free and clear of any encumbrances or restrictions) the number
of outstanding shares of Company Common Stock set forth under the heading
"Shares Held of Record" on the signature page hereof; (b) Shareholder holds
(free and clear of any encumbrances or restrictions) the options, warrants and
other rights to acquire shares of Company Common Stock set forth under the
heading "Options and Other Rights" on the signature page hereof; (c)
Shareholder Owns the additional securities of the Company set forth under the
heading "Additional Securities Beneficially Owned" on the signature page
hereof; and (d) Shareholder 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 Agreement are accurate in all respects as of the date of this
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 Acquisition as if made on that date.
Section 7. Additional Covenants of Shareholder
7.1 Further Assurances. From time to time and without additional
consideration, Shareholder shall execute and deliver, or cause to be executed
and delivered, such additional transfers, assignments, endorsements, proxies,
consents and other instruments, and shall take such further actions, as the
Purchaser may reasonably request for the purpose of carrying out and furthering
the intent of this Agreement.
7.2 Legends. If requested by the Purchaser, immediately after the execution
of this Agreement (and from time to time upon the acquisition by Shareholder of
Ownership of any shares of Company Common Stock
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prior to the Expiration Date), Shareholder shall cause each certificate
evidencing any outstanding shares of Company Common Stock or other securities
of the Company Owned by Shareholder to be surrendered so that the transfer
agent for such securities may affix thereto 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 A VOTING AGREEMENT DATED AS OF DECEMBER 15,
2000, 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 Shareholder in
this Agreement shall survive for a period of one year following the Expiration
Date.
8.2 Expenses. All costs and expenses incurred in connection with the
transactions contemplated by this 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 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 Shareholder:
at the address set forth on the signature page hereof; and
if to the Purchaser:
NVIDIA Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
8.4 Severability. If any provision of this 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 Agreement. Each provision of
this Agreement is separable from every other provision of this Agreement, and
each part of each provision of this Agreement is separable from every other
part of such provision.
8.5 Entire Agreement. This 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
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
Agreement nor any of the interests or obligations hereunder may be assigned or
delegated by Shareholder, and any attempted or purported
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assignment or delegation of any of such interests or obligations shall be void.
Subject to the preceding sentence, this Agreement shall be binding upon
Shareholder and his heirs, estate, executors and personal representatives and
his or its successors and assigns, and shall inure to the benefit of the
Purchaser and its successors and assigns. Without limiting any of the
restrictions set forth in Section 2 or elsewhere in this Agreement, this
Agreement shall be binding upon any Person to whom any Subject Company
Securities are transferred. Nothing in this Agreement is intended to confer on
any Person (other than the Purchaser 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 Agreement or the Proxy
were not performed in accordance with its specific terms or were otherwise
breached. Shareholder agrees that, in the event of any breach or threatened
breach by Shareholder of any covenant or obligation contained in this Agreement
or in the Proxy, the Purchaser 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. Shareholder further agrees that
neither the Purchaser 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 Shareholder
irrevocably waives any right he or it 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 the Purchaser under this
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 the Purchaser under this Agreement,
and the obligations and liabilities of Shareholder under this Agreement, are in
addition to their respective rights, remedies, obligations and liabilities
under common law requirements and under all applicable statutes, rules and
regulations.
8.9 Governing Law; Venue.
(a) This 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) In any legal action or other legal proceeding relating to this
Agreement or the Proxy or the enforcement of any provision of this
Agreement or the Proxy, each of the parties irrevocably and unconditionally
consents and submits to the exclusive jurisdiction and venue of the state
and federal courts located in Santa ▇▇▇▇▇ County, California. Shareholder:
(i) expressly and irrevocably consents and submits to the
jurisdiction of each state and federal court located in Santa ▇▇▇▇▇
County, 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 or it at the address set forth on the
signature page hereof 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 Santa
▇▇▇▇▇ County, 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 Santa ▇▇▇▇▇ County, California, any claim that
Shareholder is not subject personally to the jurisdiction of such
court, that such legal proceeding has been brought in an inconvenient
forum, that the venue of such proceeding is improper or that this
Agreement or the subject matter of this Agreement may not be enforced
in or by such court.
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Nothing contained in this Section 8.9 shall be deemed to limit or otherwise
affect the right of the Purchaser to commence any legal proceeding or otherwise
proceed against Shareholder in any other forum or jurisdiction.
(c) SHAREHOLDER IRREVOCABLY WAIVES THE RIGHT TO A JURY TRIAL IN
CONNECTION WITH ANY LEGAL PROCEEDING RELATING TO THIS AGREEMENT OR THE
PROXY OR THE ENFORCEMENT OF ANY PROVISION OF THIS AGREEMENT OR THE PROXY.
8.10 Counterparts. This Agreement may be executed 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 Agreement are for convenience
of reference only, shall not be deemed to be a part of this Agreement and shall
not be referred to in connection with the construction or interpretation of
this Agreement.
8.12 Attorneys' Fees. If any legal action or other legal proceeding relating
to this Agreement or the enforcement of any provision of this Agreement is
brought against Shareholder, 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 the Purchaser to exercise any power,
right, privilege or remedy under this Agreement, and no delay on the part of
the Purchaser in exercising any power, right, privilege or remedy under this
Agreement, shall operate as a waiver of such power, right, privilege or remedy;
and no single or partial exercise of any such power, right, privilege or remedy
shall preclude any other or further exercise thereof or of any other power,
right, privilege or remedy. The Purchaser shall not be deemed to have waived
any claim available to the Purchaser arising out of this Agreement, or any
power, right, privilege or remedy of the Purchaser under this Agreement, unless
the waiver of such claim, power, right, privilege or remedy is expressly set
forth in a written instrument duly executed and delivered on behalf of the
Purchaser; 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 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.
(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 Agreement.
(c) As used in this 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 Agreement to
"Sections" and "Exhibits" are intended to refer to Sections of this
Agreement and Exhibits to this Agreement.
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In Witness Whereof, the Purchaser and Shareholder have caused this Agreement
to be executed as of the date first written above.
Nvidia Corporation
By: _________________________________
Shareholder
Name: ______________________________
Address: ____________________________
Facsimile: __________________________
Shares Held of Record Options and Other Rights Additional Securities Beneficially Owned
--------------------- ------------------------ ----------------------------------------
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Exhibit A
Form of Irrevocable Proxy
The undersigned shareholder (the "Shareholder") of 3dfx Interactive, Inc., a
California corporation (the "Company"), hereby irrevocably (to the fullest
extent permitted by law) appoints and constitutes , and
NVIDIA Corporation, a Delaware corporation (the "Purchaser"), and each of them,
the attorneys and proxies of the Shareholder with full power of substitution
and resubstitution, to the full extent of the Shareholder's rights with respect
to (i) the outstanding shares of capital stock of the Company owned of record
by the Shareholder 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 Shareholder 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 Shareholder with respect to any of the Shares are hereby revoked,
and the Shareholder 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 the
Purchaser and the Shareholder (the "Voting Agreement"), and is granted in
consideration of the Purchaser entering into the Asset Purchase Agreement,
dated as of the date hereof, by and between the Purchaser, Titan Acquisition
Corp. No. 2 and the Company (the "Purchase Agreement"). This proxy will
terminate on the Expiration Date (as defined in the Voting 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 Purchase Agreement or the closing of the transactions
contemplated thereby (the "Acquisition") at any meeting of the shareholders of
the Company, however called, and in connection with any written action by
consent of shareholders of the Company:
(i) in favor of the Acquisition, the approval of the Purchase Agreement
and the principal terms thereof, in favor of each of the other actions
contemplated by the Purchase Agreement and in favor of any action in
furtherance of any of the foregoing; and
(ii) in favor of the winding up and dissolution of the Company pursuant
to the California Corporations Code following the consummation of the
Acquisition (the "Winding Up and Dissolution");
(iii) against any action or agreement that would result in a breach of
any representation, warranty, covenant or obligation of the Company in the
Purchase Agreement; and
(iv) against the following actions (other than the Acquisition, the
Winding Up and Dissolution and the other transactions contemplated by the
Purchase 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) any sale, lease or transfer of a
material amount of assets of the Company or any subsidiary of the Company;
(C) any reorganization, recapitalization, dissolution or liquidation of the
Company or any subsidiary of the Company; (D) any change in a majority of
the board of directors of the Company; (E) any amendment to the Company's
certificate of incorporation or bylaws; (F) any material change in the
capitalization of the Company or the Company's corporate structure; and (G)
any other action which is intended, or could reasonably be expected to
impede, interfere with, delay, postpone, discourage or adversely affect the
Acquisition or any of the other transactions contemplated by the Purchase
Agreement, or the Winding Up and Dissolution.
The Shareholder may vote the Shares on all other matters not referred to in
this proxy, and the attorneys and proxies named above may not exercise this
proxy with respect to such other matters.
Subject to the provisions of Section 2.3 of the Voting Agreement, this proxy
shall be binding upon the heirs, estate, executors, personal representatives,
successors and assigns of the Shareholder (including any transferee of any of
the Shares).
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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.
Dated: December , 2000
_____________________________________
Name
Number of shares of common stock of
the Company owned of record as of
the date of this proxy: _____________
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