Exhibit E-5
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VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Voting Agreement"), dated as of October 18,
1998, is made by and between Protection One, Inc., a corporation organized under
the laws of the State of Delaware (the "Parent") and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ (the "Stockholder").
WHEREAS, concurrently herewith, the Parent; Protection One Acquisition
Holding Corporation, a corporation organized under the laws of the State of
Delaware and a wholly owned subsidiary of Parent ("New Parent"); P-1 Merger Sub,
Inc., a corporation organized under the laws of the Commonwealth of
Massachusetts and a wholly owned subsidiary of New Parent ("Merger Sub I"); P-1
Merger Sub, Inc., a corporation organized under the laws of the State of
Delaware and a wholly owned subsidiary of New Parent ("Merger Sub II"); and
Lifeline Systems, Inc., a corporation organized under the laws of the
Commonwealth of Massachusetts (the "Company"), are entering into an Agreement
and Plan of Contribution and Merger (as it may be amended from time to time in
the future in accordance with its terms, the "Merger Agreement"), providing for,
among other things, the merger of Merger Sub I with and into the Company (the
"Company Merger"), with the Company being the entity surviving the Company
Merger and continuing after the Company Merger as a wholly owned subsidiary of
New Parent;
WHEREAS, as of the date hereof, the Stockholder beneficially owns the
number of issued and outstanding shares of common stock, par value $0.02 per
share, of the Company (the "Shares") as indicated on Schedule A hereto (the
"Owned Shares");
WHEREAS, following the execution and delivery of this Voting Agreement,
the Stockholder may become the beneficial owner of additional Shares upon the
exercise of options, warrants or rights, the conversion or exchange of
convertible or exchangeable securities, or by means of purchase, dividend,
distribution, gift, bequest, inheritance or as a successor in interest in any
capacity or otherwise (which additional Shares shall, from and after the time
they are acquired by the Stockholder, be deemed to constitute "Owned Shares");
and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, the Parent has required that the Stockholder agree, and the
Stockholder has agreed, to vote the Owned Shares in favor of the adoption of the
Merger Agreement and the approval of the Company Merger in accordance with the
terms and conditions of this Voting Agreement;
DAFS01...:\23\68523\0008\6899\AGR0278R.160
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration given to each party hereto, the receipt of which is
hereby acknowledged, the parties agree as follows:
1. Agreement to Vote. The Stockholder hereby agrees that, during the time
this Voting Agreement is in effect, at any meeting of the stockholders of the
Company, however called, and in any action by consent of the stockholders of the
Company, he or she will vote all of the Owned Shares, subject to the expiration
of this Voting Agreement pursuant to Section 2 hereof, (i) in favor of the
Company Merger, the Merger Agreement and the transactions contemplated by the
Merger Agreement and (ii) against any Acquisition Proposal (as defined in the
Merger Agreement) and any other action or agreement that would result in a
breach of any covenant, representation or warranty or any other obligation or
agreement of the Company under the Merger Agreement or which would result in any
of the conditions to the Company's obligations under the Merger Agreement not
being fulfilled. In order to effect the intentions of the parties hereunder, the
Stockholder hereby constitutes and appoints ▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇,
either of whom may act without the joinder of the other, as the Stockholder's
true and lawful proxy and attorney-in-fact to vote any and all of the Owned
Shares at the Special Meeting (as defined in the Merger Agreement). The
Stockholder acknowledges that the proxy granted hereby is irrevocable, being
coupled with an interest, and that such proxy will continue until the
termination of this Voting Agreement in accordance with its terms.
2. Expiration. This Voting Agreement and the Stockholder's obligations
hereunder shall terminate on the first to occur of (a) the Effective Time, (b)
the termination of the Merger Agreement in accordance with its terms and (c)
April 30, 1999.
3. Representations and Warranties of the Stockholder. The Stockholder
hereby represents and warrants to the Purchaser as follows:
3.1 Ownership of Shares. The Stockholder beneficially owns the Owned
Shares listed on Schedule A hereto, all of which are held of record by him or
her. The Stockholder has sole voting power and sole power of disposition with
respect to such Owned Shares, with no restrictions, subject to applicable
federal laws, on his or her rights of disposition pertaining thereto.
3.2 Power; Binding Agreement. The Stockholder has the legal
capacity, power and authority to enter into and perform all of his or her
obligations under this Voting Agreement. This Voting Agreement has been duly and
validly
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executed and delivered by the Stockholder and constitutes a valid and binding
agreement of the Stockholder, enforceable against the Stockholder in accordance
with its terms, except to the extent (i) such enforcement may be limited by
applicable bankruptcy, insolvency or similar laws affecting creditors' rights
and (ii) the remedy of specific enforcement and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.
3.3 No Conflicts. The execution, delivery and performance of this
Voting Agreement by the Stockholder will not constitute a breach, violation or
default (or any event which, with notice or lapse of time or both, would
constitute a default) under, or result in the termination of, or accelerate the
performance required by, or result in a right of termination or acceleration
under, or result in the creation of any lien or encumbrance upon any of the
Owned Shares under, any note, bond, mortgage, indenture, deed of trust, license,
lease, agreement or other instrument to which the Stockholder is a party or by
which the Owned Shares may be bound.
4. Certain Covenants of the Stockholder. The Stockholder hereby covenants
and agrees as follows with respect to the period during which this Voting
Agreement is in effect:
4.1 Restriction on Transfer, Proxies and Non-Interference. Except as
contemplated hereby, the Stockholder shall not (i) sell, transfer, pledge,
encumber, assign or otherwise dispose of, or enter into any contract, option or
other arrangement or understanding with respect to the sale, transfer, pledge,
encumbrance, assignment or other disposition of, any of his or her Shares, (ii)
grant any proxies, deposit any shares of capital stock of the Company into a
voting trust or enter into a voting agreement with respect to any such Shares or
(iii) take any action that would make any representation or warranty of the
Stockholder contained herein untrue or incorrect or have the effect of
preventing or disabling the Stockholder from performing his or her obligations
under this Voting Agreement. Notwithstanding the foregoing, the Stockholder
shall be permitted to (i) transfer any of the Owned Shares to any member of the
immediate family of the Stockholder or any trust, limited partnership or other
entity the beneficial ownership of which is held by the Stockholder or such
family members (each, a "Permitted Transferee"), so long as such Permitted
Transferee agrees in writing, in form and substance satisfactory to the
Purchaser, to be bound by the terms hereof to the same extent as the Stockholder
is bound and provided further, however, that no such transfer shall relieve the
Stockholder of his or her obligations hereunder if such Permitted Transferee
does not perform such obligations, (ii) dispose of any Owned Shares in payment
of the exercise price or any withholding taxes in
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connection with any exercise by the Stockholder of stock options outstanding on
the date of this Voting Agreement to acquire shares of capital stock of the
Company and (iii) transfer by gift to any charitable organization up to the
number of Owned Shares indicated on Schedule A under the heading "Maximum Number
of Shares that May be Transferred by Gift."
4.2 Additional Owned Shares. The Stockholder shall promptly notify
the Purchaser of the number of additional Owned Shares acquired by such
Stockholder, if any, after the date hereof.
4.3 Appraisal Rights. The Stockholder shall not exercise any rights
(including, without limitation, under Sections 85 to 98 of the Business
Corporation Law of the Commonwealth of Massachusetts) to demand appraisal of any
Owned Shares which may arise with respect to the Company Merger.
5. Other Matters.
5.1 Proposed Amendment of Merger Agreement. Notwithstanding anything
to the contrary contained herein or in the Merger Agreement, if, without the
Stockholder's prior written consent, the Parent proposes in writing to the
Company, the Board of Directors of the Company or any Committee thereof, or
publicly releases a proposal for any reduction in the Company Merger
Consideration (as defined in the Merger Agreement) this Voting Agreement shall
terminate and be of no further force or effect.
5.2 Stockholder Capacity. The Stockholder does not make any
agreement or understanding herein in a capacity as a director or officer of the
Company. The Stockholder signs solely in his or her capacity as the record
holder and beneficial owner of Owned Shares and nothing contained herein shall
limit or affect any actions taken by the Stockholder in his or her capacity as
an officer or director of the Company.
5.3 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 action as may be
necessary or desirable to consummate and make effective the transactions
contemplated by Section 1 of this Voting Agreement.
6. Miscellaneous.
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6.1 Entire Agreement; Assignment. This Voting Agreement (i)
constitutes the entire agreement among the parties with respect to the subject
matter hereof and supersedes all other prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof
and (ii) shall not be assigned by operation of law or otherwise, provided that
the Parent may assign its rights and obligations hereunder to any direct or
indirect wholly owned subsidiary of the Parent, but no such assignment shall
relieve the Parent of its obligations hereunder if such assignee does not
perform such obligations.
6.2 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telegram, telex
or telecopy, by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any courier service, such as Federal Express, providing
proof of delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses:
To the Stockholder at the address set forth on Schedule A hereto.
with a copy to:
▇▇▇▇ and ▇▇▇▇ LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
To the Parent:
Protection One, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇, III
and
Protection One, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇
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with a copy to:
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
6.3 Governing Law. This Voting Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts,
regardless of the laws that might otherwise govern under applicable principles
of conflicts of laws thereof.
6.4 Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained in
this Voting 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 each
of the parties hereby agrees that 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.
6.5 Counterparts. This Voting Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original, but all of
which shall constitute one and the same Voting Agreement.
6.6 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 Voting Agreement.
6.7 Severability. Whenever possible, each provision or portion of
any provision of this Voting Agreement will be interpreted in such manner as to
be effective and valid under applicable law but if any provision or portion of
any provision of this Voting Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and this
Voting Agreement will be reformed, construed
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and enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision or portion of any provision had never been contained herein.
6.8 Capitalized Terms. Capitalized terms used in this Voting
Agreement but not otherwise defined in this Voting Agreement shall have the
respective meanings given to such terms in the Merger Agreement.
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IN WITNESS WHEREOF, the Parent and the Stockholder have caused this Voting
Agreement to be duly executed as of the day and year first above written.
PROTECTION ONE, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇, III
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Name: ▇▇▇▇ ▇. ▇▇▇▇, III
Title: Executive Vice President
STOCKHOLDER:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Schedule A(1)
Owned Shares
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 19,000(2)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 445
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 186,534(3)
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 17,400(4)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 9,295(5)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Ph.D. 12,150
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 9,139(6)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 37,961(7)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 1,000
L. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 684,333(8)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 5,013
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, M.D. 1,001
▇▇▇▇▇ ▇▇▇▇▇▇ 0
Maximum Number of Shares That May Be Transferred by Gift
L. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 20,000
All Others 0
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1 Listed number of Owned Shares excludes Shares subject to stock options.
Accurate as of 9/30/98.
2 Includes 7,000 shares held by the ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Revocable Trust of
1997.
3 Includes 8,513 Shares beneficially owned through interest in the Company's
Employees Savings and Investment Plan (the "401(k)").
4 Includes 2,201 Shares beneficially owned through interest in the 401(k).
5 Includes (i) certain Shares beneficially owned within an Individual
Retirement Account, (ii) 572 Shares beneficially owned through interest in
the 401(k) and (iii) certain jointly-owned Shares.
6 Includes 8,939 Shares pledged to the Company.
7 Includes (i) certain jointly-owned Shares and (ii) 5,461 Shares
beneficially owned through interest in the 401(k).
8 Excludes certain Shares held variously (i) in custody, (ii) by spouse and
(iii) by spouse as co-trustee; includes certain jointly-owned Shares.
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