Exhibit 10.2
VOTING AGREEMENT AND
AMENDMENT TO STOCKHOLDERS AGREEMENT
AGREEMENT, dated as of April 25, 2002, by and among Franklin Electric
Co., Inc., an Indiana corporation ("Franklin"), and the shareholders of
Intelligent Controls, Inc., a Maine corporation (the "Company"), listed on
the signature page of this Agreement (collectively, the "Shareholders" and
each, a "Shareholder").
WHEREAS, on even date herewith, Franklin has entered into an
Agreement and Plan of Merger dated as of April 25, 2002 (the "Merger
Agreement") by and among ▇▇▇▇▇▇▇▇, ▇▇▇ Corporation, a Maine corporation and
a wholly-owned subsidiary of Franklin ("Merger Subsidiary"), and the
Company, pursuant to which Franklin will acquire the Company by merging
Merger Subsidiary with and into the Company, with the Company as the
Surviving Corporation and a wholly-owned subsidiary of Franklin;
WHEREAS, the Company will submit the transactions contemplated by the
Merger Agreement to the holders of its Common Stock for approval at a
meeting of shareholders called for that purpose (the "Shareholders
Meeting");
WHEREAS, each Shareholder is the record holder of, and Beneficially
Owns, the number of shares of Common Share (the "Shares") set forth
opposite his or her name on Schedule I to this Agreement and is a party to
that certain Stockholders Agreement dated as of May 1, 1998, as heretofore
amended (the "Shareholders Agreement"); and
WHEREAS, as an inducement to Franklin to enter into the Merger
Agreement, the Shareholders have agreed to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
1. Definitions. For purposes of this Agreement:
(a) "Beneficially Own" or "Beneficial Ownership" with respect
to any securities shall mean having "beneficial
ownership" of such securities (as determined pursuant to
Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) and with respect to stock
options shall mean the maximum number of shares
purchasable under such options irrespective of vesting
limitations or other exercise conditions.
(b) "Common Stock" shall mean at any time the Common Stock,
no par value, of the Company.
(c) "Person" shall mean an individual, corporation,
partnership, limited liability company, joint venture,
association, trust, unincorporated organization or other
entity.
2. Agreements.
(a) Voting. Each Shareholder hereby agrees to vote his
Shares in connection with the Shareholder Meeting (a) in
favor of the Merger and the Merger Agreement, (b) in
favor of any other matter determined by the Board of
Directors of the Company to be necessary for the
consummation of the transactions contemplated by or
referred to in the Merger Agreement and (c) against any
matter inconsistent with the transactions contemplated by
or referred to in the Merger Agreement;
(b) Grant of Proxy. Each Shareholder hereby irrevocably
grants to, and appoints, ▇▇▇▇ ▇. ▇▇▇▇ or ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇ and any nominee thereof (the "Proxy Holder"),
such Shareholder's proxy and attorney-in-fact (with full
power of substitution), for and in the name, place and
stead of such Shareholder, to vote his Shares in
accordance with the provisions of Section 2(a).
(c) Revocation of Prior Proxies. Each Shareholder represents
that any proxies heretofore given in respect of such
Shareholder's Shares, if any, are not irrevocable, and
that such proxies are hereby revoked.
(d) Irrevocable Proxy. Each Shareholder hereby affirms that
the irrevocable proxy set forth in this Section 2 are
coupled with an interest and are intended to be
irrevocable in accordance with the Maine Business
Corporation Act. If for any reason the proxies granted
herein are not irrevocable, each Shareholder agrees to
vote his Shares as instructed by the Proxy Holder in
writing.
(e) No Inconsistent Arrangements. Each Shareholder hereby
covenants and agrees that, except as contemplated by this
Agreement, he will not (i) transfer (which term shall
include, without limitation, any sale, gift, pledge or
other disposition), or consent to any transfer of, any
or all of such Shareholder's Shares, or any interest
therein, (ii) enter into any contract, option or other
agreement or understanding with respect to any transfer
of any or all of such Shares, or any interest therein,
(iii) grant any proxy, power-of-attorney or other
authorization in or with respect to such Shares, (iv)
deposit such Shares into a voting trust or enter into a
voting agreement or arrangement with respect to such
Shares, or (v) take any other action that would in any
way restrict, limit or interfere with the performance of
his obligations under this Agreement or the transactions
contemplated by this Agreement.
(f) Waiver of Right to Dissent. Each Shareholder hereby
waives any right to dissent from the Merger that such
Shareholder may have under the Maine Business Corporation
Act or otherwise.
(g) Termination of Stockholders Agreement. Each Shareholder
hereby agrees to amend and terminate the Stockholders
Agreement in its entirety, waiving and releasing all
further rights and claims of the Shareholder thereunder.
Such amendment, termination, waiver, and release is
conditional only upon
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consummation of the "Merger" and shall be effective as of
the "Effective Time" (as such terms are defined in the
Merger Agreement).
3. Representations and Warranties of the Shareholders. Each
Shareholder hereby represents and warrants to Franklin that (i) he is the
record and Beneficial Owner of the Shares set forth on Schedule I and
(except as otherwise set forth therein) has sole voting power with respect
thereto, (ii) he does not Beneficially Own any Shares other than those set
forth on Schedule I, (iii) he has the legal capacity, power and authority
to enter into this Agreement and perform his obligations under this
Agreement without the need for the consent of any other person or entity,
and (iv) this Agreement constitutes a valid and binding agreement of the
Shareholder enforceable against him in accordance with its terms, except as
enforcement thereof may be limited by applicable bankruptcy and other
similar laws and general principles of equity.
4. Further Assurances. From time to time, at the other party's
request and without further consideration, each party hereto 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.
5. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject
matter hereof and supersedes all other prior agreements
and understandings, both written and oral, between the
parties with respect to the subject matter hereof.
(b) Binding Agreement This Agreement and the obligations
hereunder shall attach to the Shares and shall be binding
upon any person or entity to which legal or Beneficial
Ownership of such Shares shall pass, whether by operation
of law or otherwise, including, without limitation, each
of the Shareholder's successors or assigns.
Notwithstanding any transfer of Shares, the transferee
shall remain liable for the performance of all
obligations of the transferor under this Agreement.
(c) Assignment. This Agreement shall not be assigned by
operation of law or otherwise without the prior written
consent of the other party.
(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. Any notice or communication given pursuant to
this Agreement must be in writing and will be deemed to
have been duly given if mailed (by registered or
certified mail, postage prepaid, return receipt
requested), or, if transmitted by telecopy, or if
delivered by courier, as follows:
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If to a Shareholder: to the Shareholder's address and
telecopy number (if any) set forth
on Schedule I hereto
If to Franklin: ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
All notices and other communications required or permitted under this
Agreement that are addressed as provided in this Section 5(e) will, whether
sent by mail, telecopy, or courier, by deemed given upon the first business
day after actual delivery to the addressed destination to which such notice
or other communication is sent (as evidenced by the return receipt or
shipping invoice signed by a representative of such party or by telecopy
confirmation). Any party from time to time may change its address for the
purpose of notices to that party by giving a similar notice specifying a
new address, but no such notice will be deemed to have been given until it
is actually received by the party sought to be charged with the contents
thereof.
(f) Specific Performance. Each party 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.
(g) 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 or exclusive, and the exercise of any
thereof by any party shall not preclude the simultaneous
or later exercise of any other such right, power or
remedy by such party.
(h) Descriptive Headings. The descriptive headings used
herein are inserted for convenience of reference only and
are not intended to be part of or to affect the meaning
or interpretation of this Agreement.
(i) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an
original, but all of which, taken together, shall
constitute one and the same Agreement.
(j) Termination. Notwithstanding any provision of this
Agreement, in the event of any termination of the Merger
Agreement, the obligations of the Shareholders hereunder
(including without limitation the irrevocable proxy
contained herein) shall terminate in all respects without
further action by any party. Upon any such termination,
this Agreement shall forthwith become
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void and have no effect, without any liability or
obligation on the part of any Shareholder.
[Signature Page Follows]
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed as of the day and year first above written.
FRANKLIN ELECTRIC CO., INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
SHAREHOLDERS:
Ampersand 1995 Limited Partnership
By: AMP-95 Management Company Limited
Partnership, its General Partner
By: AMP-95 MCLP LLP, its General
Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇
Title: General Partner
Ampersand 1995 Companion Fund Limited
Partnership
By: AMP-95 Management Company Limited
Partnership, its General Partner
By: AMP-95 MCLP LLP, its General
Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇
Title: General Partner
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
-----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------
▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------
▇▇▇▇ ▇▇▇▇▇, as custodian for
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇
-----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇, Trustee, the
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Trust dated
December 4, 1994
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Schedule I
Beneficial Ownership
Name, Address and Telecopy -------------------------------
Number of Shareholder Shares Options****
-------------------------- ------ -----------
Ampersand 1995 Limited Partnership* 1,612,247 0
Ampersand 1995 Companion Fund Limited
Partnership* 26,215 0
▇▇▇▇▇▇▇ ▇. ▇▇▇* 0 21,000
▇▇▇▇ ▇▇▇▇▇** 986,638 0
▇▇▇▇▇ ▇. ▇▇▇▇▇▇*** 518,923 40,000
▇▇▇▇ ▇. ▇▇▇▇▇** 375,256 5,000
___________________
* The address and telecopy number are ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, telecopy number: ▇▇▇-▇▇▇-▇▇▇▇. Share
ownership shown is record ownership. Due to affiliations between
Ampersand 1995 Limited Partnership and Ampersand 1995 Companion Fund
Limited Partnership, each partnership is deemed a Beneficial Owner of
the other's Shares. Due to affiliations between ▇▇. ▇▇▇ and the two
partnerships, he may be deemed a Beneficial Owner of the
partnerships' Shares, although he has disclaimed Beneficial Ownership
of those Shares in filings made by him with the Securities and
Exchange Commission.
** The address and telecopy number are ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, telecopy number: ▇▇▇-▇▇▇-▇▇▇▇. His Beneficial
Ownership includes 880,551 Shares owned directly, 66,949 Shares owned
by his wife ▇▇▇▇▇ ▇. ▇▇▇▇▇, 30,106 shares held in trust for his child
(trustee is ▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇), and 3,000 shares held of record by
him as custodian for his child.
*** The address and telecopy number are ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, telecopy number: ▇▇▇-▇▇▇-▇▇▇▇.
**** It is not anticipated that these options will be exercised prior to
the record date for the special meeting of shareholders. If and to
the extent they are, the underlying stock will become "Shares" within
the meaning of this Agreement.
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