Item 7, Exhibit No. 2
VOTING AGREEMENT
AND
IRREVOCABLE PROXY
VOTING AGREEMENT (this "Agreement"), dated as of July 20, 2003, by and
among Xxxxxxx Kodak Company ("Purchaser"), a New Jersey corporation, Peach
Acquisition, Inc. ("Acquisition Sub"), a Delaware corporation and a wholly owned
subsidiary of Purchaser, and each of the individuals listed on the signature
pages hereto (each, in his or her capacity as stockholder of PracticeWorks, Inc.
(the "Company"), a "Stockholder", and collectively, the "Stockholders").
WHEREAS, each of the Stockholders is, as of the date hereof, the
beneficial owner of the shares of common stock, par value $0.01 per share (the
"Common Stock"), of the Company, a Delaware corporation, and options to purchase
the Common Stock ("Options") of the Company, all as set forth on Schedule I
hereto;
WHEREAS, Purchaser, Acquisition Sub and the Company concurrently
herewith are entering into an Agreement and Plan of Merger, dated as of the date
hereof (the "Plan"), which provides, among other things, for the acquisition of
the Company by merger of Acquisition Sub with and into the Company upon the
terms and subject to the conditions set forth in the Plan (the "Merger"); and
WHEREAS, as a condition to the willingness of Purchaser and Acquisition
Sub to enter into the Plan, and in order to induce Purchaser and Acquisition Sub
to enter into the Plan, the Stockholders have agreed (each in his or her
capacity as a stockholder of the Company) to enter into this Agreement.
NOW, THEREFORE, in consideration of the execution and delivery by
Purchaser and Acquisition Sub of the Plan and the foregoing and the mutual
representations, warranties, covenants and agreements set forth herein and
therein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows
(capitalized terms used but not defined herein have the meanings ascribed to
such terms in the Plan):
SECTION 1. Representations and Warranties of the Stockholders. Each
Stockholder, represents and warrants to Purchaser and Acquisition Sub, severally
and not jointly, as follows:
(a) Stockholder is (i) the owner of record of, or (ii) the sole manager
or general partner of the limited liability company or partnership which is the
record owner of, or (iii) the trustee of the trust that is the record holder of,
and Beneficially Owns (as defined below) and has good and valid title to, the
shares of Common Stock set forth opposite his or her name on Schedule A attached
hereto, free and clear of any claims, liens, encumbrances, security interests,
options, charges and restrictions of any kind. Except as otherwise set forth on
Schedule I attached hereto, such Stockholder does not Beneficially Own any other
shares of capital stock or
other voting securities of the Company. Stockholder has the sole right to
dispose of and vote the shares of Common Stock and any shares such Stockholder
may acquire, whether upon exercise of any Option or otherwise (collectively, the
"Shares"), and none of the Shares are subject to any voting trust or other
agreement, arrangement or restriction with respect to the voting of the Shares
Beneficially Owned by such Stockholder, except as set forth in this Agreement.
"Beneficially Own" means that the Stockholder has such ownership,
control or power to direct the voting or investment with respect to, or to
legally act with respect to the ownership of, shares of Common Stock, including
pursuant to any agreement, arrangement or understanding, whether or not in
writing or otherwise beneficially owned as provided in Rule 13d-3(a) promulgated
under the Securities Exchange Act of 1934 ("Exchange Act").
(b) Stockholder has full power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement by Stockholder, and the consummation of
the transactions contemplated hereby, have been duly authorized and approved by
all necessary action on the part of any entity or entities on whose behalf
Stockholder acts in his or her non-individual capacity (the "Entities"). This
Agreement has been duly executed and delivered by Stockholder and constitutes
his or her valid and binding obligation and, as applicable, the valid and
binding obligation of the Entities enforceable against Stockholder and
applicable Entities in accordance with its terms, subject to the effect of any
applicable bankruptcy, reorganization, insolvency, moratorium, or similar law
affecting creditors' rights generally and subject, as to enforceability, to the
effect of general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(c) The execution and delivery of this Agreement do not, and compliance
with the terms hereof will not: (A) conflict with, or result in any violation
of, or default (with or without notice or lapse of time or both) under, or give
rise to a right of termination, amendment, cancellation or acceleration of any
obligation or to loss of a material benefit under, or to increased, additional,
accelerated or guaranteed rights or entitlements of any person under, or result
in the creation of any lien upon the Shares Beneficially Owned under any
provision of any applicable trust agreement, loan or credit agreement, note,
bond, mortgage, indenture, lease or other agreement, or instrument, or (B)
violate any order, writ, injunction, decree, statute, rule or regulation
applicable to such Stockholder or the Entities or any of the Shares Beneficially
Owned, except for such conflicts, violations, breaches, defaults or other
occurrences which, individually or the aggregate, have not had and would not
reasonably be expected to prevent, limit or materially delay the ability of
Stockholder to perform his or her obligations under this Agreement.
(d) Neither the execution, delivery and performance of this Agreement
by the Stockholder or the Entities, nor such person's involvement in the
consummation of the transactions contemplated by the Plan (the "Transactions"),
will require any consent, approval, authorization, order or permit of, or filing
with or notification to any governmental entity, except for (i) applicable
requirements of the Exchange Act and the Securities Act and the rules and
2
regulations thereunder and (ii) the applicable requirements of state securities
laws, takeover laws or Blue Sky laws except where the failure to obtain or make
such consent, approval, authorization, order or permit of, or filing with or
notification to any governmental authority will not, and would not have
reasonably be expected to, prevent, limit or materially delay the ability of
Stockholder to perform his or her obligations under this Agreement. If
Stockholder is married and the Shares Beneficially Owned by the Stockholder are
jointly held or constitute community property and spousal or other approval is
necessary to make this Agreement valid and binding, this Agreement has been duly
executed and delivered by, and, constitutes a valid and binding agreement of,
such Stockholder's spouse enforceable against such spouse in accordance with its
terms. If this Agreement is being executed by Stockholder in a capacity under
(ii) or (iii) of Section 1(a), the Stockholder has full power and authority to
enter into this Agreement.
SECTION 2. Transfer of the Shares. Each of the Stockholders hereby
agrees that at all times during the period commencing with the execution and
delivery of this Agreement until the Effective Time or termination of this
Agreement, the Stockholder shall not cause or permit any Transfer (as defined
below) of any of the Shares to be effected, or discuss, negotiate or make any
offer regarding any Transfer of any of the Shares, unless each person to which
any such Shares, or any interest therein, is or may be Transferred shall have
(i) executed a counterpart of this Agreement and a proxy substantially in the
form attached hereto as Exhibit A (the "Proxy"), and (ii) agreed in writing to
hold such Shares, or such interest therein, subject to all of the terms and
conditions set forth in this Agreement.
A Stockholder shall be deemed to have effected a "Transfer" of Shares
if he or she directly or indirectly: (a) sells, pledges, encumbers, grants an
option with respect to, transfers or otherwise disposes of such Shares or any
interest therein, or (b) enters into an agreement or commitment providing for
the sale of, pledge of, encumbrance of, grant of an option with respect to,
transfer of or disposition of such Shares or any interest therein, or (c) takes
any action or suffers to be taken any action which would result in the transfer
of such Shares by operation of law or court order.
Each of the Stockholders hereby also agrees that, at all times
commencing with the execution and delivery of this Agreement until the Effective
Time or the termination of this Agreement, he or she shall not deposit, or
permit the deposit of, any Shares in a voting trust, grant any proxy (other than
the Proxy) in respect of the Shares, or enter into any stockholder agreement or
similar arrangement or commitment in contravention of the obligations of such
Stockholder under this Agreement with respect to any of the Shares.
SECTION 3. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) Concurrently with the execution of this Agreement, the Stockholder
herewith delivers to Purchaser the Proxy, which shall be irrevocable to the
fullest extent permissible by applicable law, with respect to the Shares.
3
(b) Each Stockholder represents and warrants that any proxies (other
than the Proxy given in connection with this Agreement) heretofore given in
respect of such Shares by such Stockholder are not irrevocable or, if they are
not revoked by the execution and delivery of this Agreement and the Proxy or are
irrevocable, that, upon execution and delivery of this Agreement, the valid
consent to the revocation of such proxies from the party or parties to whom such
proxies were heretofore granted will be obtained, and that any such other
proxies are hereby revoked. Each Stockholder understands and acknowledges that
the Purchaser is entering into the Plan in reliance upon the execution, delivery
and performance of this Agreement by such Stockholder.
(c) Each Stockholder hereby affirms that the Proxy he or she is
delivering is given in connection with the execution of the Plan, and that such
Proxy is given to secure the performance of the duties of such Stockholder in
accordance with this Agreement. Each Stockholder hereby further affirms that his
or her Proxy is coupled with an interest and may under no circumstances be
revoked. The Proxy is executed and intended to be irrevocable in accordance with
the applicable provisions of the Delaware General Corporation Law. The Proxy
shall be valid until termination of this Agreement pursuant to Section 7 hereof.
SECTION 4. Certain Events. In the event of any stock split, stock
dividend, merger, reorganization, recapitalization or other change in the
capital structure of the Company affecting the Common Stock or the acquisition
of additional shares of Common Stock or other securities or rights of the
Company by Stockholder, the number of Shares shall be adjusted appropriately,
and this Agreement and the rights and obligations hereunder shall attach to any
additional shares of Common Stock or other securities or rights of the Company
issued to or acquired by Stockholder.
SECTION 5. Certain Other Agreements. From and after the date of this
Agreement until the Effective Time or termination of this Agreement, no
Stockholder will, nor will any Stockholder authorize or permit any of his or her
affiliates or any investment banker, attorney or other advisor or representative
retained by any of them to, directly or indirectly: (i) solicit, initiate,
encourage or induce the making, submission or announcement of any acquisition
proposal described in Section 5.06 of the Plan, (ii) participate in any
discussions or negotiations regarding, or furnish to any person any information
with respect to, or take any other action to facilitate any inquiries or the
making of any proposal that constitutes or may reasonably be expected to lead
to, any such acquisition proposal, (iii) engage in discussions 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 contract, agreement or commitment contemplating or otherwise relating to
any acquisition proposal described in Section 5.06 of the Plan; provided,
however, that nothing herein shall prohibit a Stockholder from taking any action
in his capacity as a director or officer of the Company to the extent that the
failure to take such action could reasonably be expected to subject the
Stockholder to liability for breach of his or her fiduciary duties.
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SECTION 6. Further Assurances. Each of the Stockholders shall, upon
request of Purchaser or Acquisition Sub, execute and deliver any additional
documents and take such further actions as may reasonably be deemed by Purchaser
or Acquisition Sub to be necessary or desirable to carry out the provisions
hereof and to vest in Purchaser the power to vote the Shares as contemplated by
Section 3 hereof.
SECTION 7. Termination. Except as otherwise provided in this Agreement,
this Agreement, and all rights and obligations of the parties hereunder, shall
terminate immediately upon the earlier of (i) the termination of the Plan in
accordance with its terms or (ii) the Effective Time; provided, however, that
Sections 8 and 10 shall survive any termination of this Agreement.
SECTION 8. Expenses. All fees and expenses incurred by any party hereto
shall be borne by the party incurring such fees and expenses.
SECTION 9. Appraisal. Each Stockholder also agrees not to exercise any
rights (including, without limitation, under Section 262 of the General
Corporation Law of the State of Delaware) to demand appraisal of any Shares
which may arise with respect to the Merger.
SECTION 10. Miscellaneous.
(a) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, then the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible to the fullest
extent permitted by applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible. If no
such agreement is reached between the parties, the term or provision which is
determined to be invalid, illegal or incapable of being enforced shall
nonetheless be enforced to fulfill the intent of the parties to the extent
legally permissible.
(b) Binding Effect and Assignment. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors, heirs, assigns and legal
representatives, but, except as otherwise specifically provided herein, neither
this Agreement nor any of the rights, interests or obligations of the parties
hereto may be assigned by any of the parties without prior written consent of
the others.
(c) Amendments and Modification. This Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by the party to be bound thereby.
5
(d) Specific Performance; Injunctive Relief. The parties hereto
acknowledge that Purchaser and Acquisition Sub shall be irreparably harmed and
that there shall be no adequate remedy at law for a violation of any of the
covenants or agreements of Stockholder set forth herein. Therefore, it is agreed
that, in addition to any other remedies that may be available to Purchaser upon
any such violation, Purchaser shall have the right to enforce such covenants and
agreements by specific performance, injunctive relief or by any other means
available to Purchaser at law or in equity.
(e) Notices. All notices and other communications pursuant to this
Agreement shall be in writing and deemed to be sufficient if contained in a
written instrument and shall be deemed given when delivered personally, by
telecopy (by equipment providing confirmation of receipt), by
nationally-recognized overnight courier, or by registered or certified mail
(return receipt requested), postage prepaid, to the parties at the following
address (or at such other address for a party as shall be specified by like
notice):
If to any Stockholder:
To the address set forth on Schedule I
With a copy to:
Xxxxxxxxxx Xxxxxxxx LLP
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy No.: (000) 000-0000
If to Purchaser or Acquisition Sub:
Xxxxxxx Kodak Company
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy No.: (000) 000-0000
6
With a copy to:
Xxxxx Xxxxxxx LLP
Xxxxxxx Xxxxxx
X.X. Xxx 00000
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx XxXxxx Xxxxx
Telephone: (000) 000-0000
Telecopy No.: (000) 000-0000
(f) Governing Law. This Agreement shall be governed by the laws of the
State of Delaware, without giving effect to the conflicts of law principles
thereof.
(g) Entire Agreement. This Agreement and the Proxy contain the entire
understanding of the parties in respect of the subject matter hereof, and
supersede all prior negotiations and understandings between the parties with
respect to such subject matter.
(h) Effect of Headings. The section headings are for convenience only
and shall not affect the construction or interpretation of this Agreement.
(i) Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
IN WITNESS WHEREOF, each of Purchaser, the Acquisition Sub and the
Stockholders have caused this Agreement to be duly executed and delivered as of
the date first written above.
PEACH ACQUISITION, INC.
By /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxxxx, President
XXXXXXX KODAK COMPANY
By /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxxxx, Senior Vice
President
[signatures continued on following page]
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STOCKHOLDERS
/s/ Xxxxxxx X. Xxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxx
-------------------------------
Xxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxx
-------------------------------
Xxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxxxx
-------------------------------
Xxxxx X. Xxxxxxx
/s/ C. Xxxxx Xxxxxxx
-------------------------------
C. Xxxxx Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Xxxxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxx
-------------------------------
Xxxxxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Xxxxxxx X. Xxxxxxx
/s/ J. Xxxxxx Xxxxxx
-------------------------------
J. Xxxxxx Xxxxxx
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Item 7, Exhibit No. 2
SCHEDULE I
TO
VOTING AND PROXY AGREEMENT
NAME AND NOTICE ADDRESS SHARES OPTIONS
----------------------- ------ -------
Xxxxxxx X. Xxxxxxx 348,735 800,508
000 X. 00xx Xxxxxx,
Xxx Xxxx, XX 00000
Xxxxx X. Xxxxx 456,606 800,750
0000 Xxxx Xxxxx
Xxxxxxx, XX 00000
Xxxxx X. Xxxxx 266,139 434,620
0000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
C. Xxxxx Xxxxxxx 2,865 301,347
0000 Xxxxx Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Xxxxx X. Xxxxxxx 4,719 258,972
0000 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxxx 15,000 30,000
c/o Dentsply International
000 Xxxx Xxxxxxx Xxxxxx
Xxxx, XX 00000
Xxxxxxx X. Xxxxx 58,256 49,010
c/o UBS Financial Services, Inc.
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx 169,500 37,500
c/x Xxxxxx Brothers
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
J. Xxxxxx Xxxxxx -0- 27,500(1)
Six Xxxxxx Xxxx
Xxxxx Xxxxx, XX 00000
-----------------------------
(1) Held by J. Xxxxxx Xxxxxx, LLC
EXHIBIT A
IRREVOCABLE PROXY
The undersigned stockholder of Peach Inc., a Delaware corporation (the
"Company"), hereby irrevocably, to the fullest extent permitted by law, appoints
Kipling Company and any executive officer thereof as the sole and exclusive
attorneys and proxies of the undersigned, with full power of substitution and
resubstitution, to vote and exercise all voting and related rights (to the full
extent that the undersigned is entitled to do so) with respect to all of the
shares of capital stock of the Company that now are or hereafter may be
beneficially owned by the undersigned, and any and all other shares or
securities of the Company issued or issuable in respect thereof on or after the
date hereof (collectively, the "Shares") in accordance with the terms of this
Proxy. The Shares beneficially owned by the undersigned stockholder of the
Company as of the date of this Proxy are listed on Schedule I to the Voting
Agreement of even date herewith by and between Purchaser and the undersigned
stockholder ("Voting Agreement"). Upon the execution of this Proxy by the
undersigned, any and all prior proxies given by the undersigned with respect to
any Shares are hereby revoked and the undersigned hereby agrees not to grant any
subsequent proxies with respect to the Shares until after the Expiration Date
(as defined below).
This Proxy is irrevocable to the fullest extent permitted by law, is
coupled with an interest and is granted pursuant to the Voting Agreement, and is
granted in consideration of Purchaser entering into that certain Agreement and
Plan of Merger (the "Plan"), by and among Purchaser, Peach Acquisition, Inc., a
Delaware corporation and a wholly-owned subsidiary of Purchaser ("Acquisition
Sub"), and the Company, which provides for the merger of Acquisition Sub with
and into the Company in accordance with its terms (the "Merger"). As used
herein, the term "Expiration Date" shall mean the earlier to occur of (i) such
date and time as the Plan shall have been validly terminated pursuant to its
terms or (ii) such date and time as the Merger shall become effective in
accordance with the terms and conditions set forth in the Plan.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting, consent and similar rights of the undersigned with respect
to the Shares (including, without limitation, the power to execute and deliver
written consents) at every annual, special, adjourned or postponed meeting of
stockholders of the Company and in every written consent in lieu of such
meeting: (i) in favor of approval of the Merger and the adoption and approval of
the Plan, and in favor of each of the other actions contemplated by the Plan and
any action required in furtherance thereof; (ii) against approval of any
proposal made in opposition to, or in competition with, consummation of the
Merger and the transactions contemplated by the Plan; (iii) against any of the
following actions (other than those actions that relate to the Merger and the
transactions contemplated by the Plan): (A) any merger, consolidation, business
combination, sale of assets, reorganization or recapitalization of the Company
or any subsidiary of the Company with any party, (B) any sale, lease or transfer
of any significant part of the assets of the Company or any subsidiary of the
Company, (C) any reorganization, recapitalization, dissolution, liquidation or
winding up of the Company or any subsidiary of the Company, (D) any material
change in the capitalization of the Company or any subsidiary of the Company, or
the corporate structure of
-11-
the Company or any subsidiary of the Company, or (E) any other action that is
intended, or could reasonably be expected to, impede, interfere with, delay,
postpone, discourage or adversely affect the Merger or any of the other
transactions contemplated by the Plan; and (iv) in favor of waiving any notice
that may have been or may be required relating to any reorganization of the
Company or any subsidiary of the Company, any reclassification or
recapitalization of the capital stock of the Company or any subsidiary of the
Company, or any sale of assets, change of control, or acquisition of the Company
or any subsidiary of the Company by any other person, or any consolidation or
merger of the Company or any subsidiary of the Company with or into any other
person.
The attorneys and proxies named above may not exercise this Proxy on
any other matter except as provided above. The undersigned stockholder may vote
the Shares on all other matters. Any obligation of the undersigned hereunder
shall be binding upon the successors and assigns of the undersigned.
This Proxy shall terminate, and be of no further force and effect,
automatically upon the Expiration Date.
Dated: July _20_, 2003 ________*________________
Print Name: ______________
*Executed by each of the following individuals:
Xxxxxxx X. Xxxxxxx
Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Xxxxx X. Xxxxxxx
C. Xxxxx Xxxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxxx
J. Xxxxxx Xxxxxx
