Exhibit 5
VOTING SUPPORT AGREEMENT
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VOTING SUPPORT AGREEMENT ("Agreement"), dated September 28, 1999, by
and between SLC TECHNOLOGIES, INC., a Delaware corporation ("SLC"), and Xxxxxxx
Xxx ("Stockholder").
A. The Board of Directors of ITI Technologies, Inc., a Delaware
corporation (the "Company"), has previously approved, and concurrently herewith
SLC and the Company are entering into, an Agreement and Plan of Merger and
Reorganization of even date herewith (as the same may be amended from time to
time, the "Merger Agreement"), pursuant to which SLC is to be merged with and
into the Company (the "Merger"). Capitalized terms used but not defined herein
have the meanings ascribed thereto in the Merger Agreement.
B. As of the date hereof, Stockholder is the record and beneficial
owner of 42,656 shares of Common Stock, par value $0.01 per share, of ITI (such
shares together with any other shares of Common Stock acquired after the date
hereof being collectively referred to herein as the "Shares").
C. As a condition to its willingness to enter into the Merger
Agreement SLC has required that Stockholder agree to vote the Shares as
hereinafter specified, all on the terms and conditions provided for herein.
In consideration of the mutual covenants and agreements contained
herein and intending to be legally bound hereby, the parties agree as follows:
1. Agreement to Vote; Proxy.
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(a) Voting. At any meeting of the stockholders of the Company
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however called (or any action by consent in lieu of a meeting), Stockholder
shall vote the Shares or cause them to be voted (i) in favor of the Merger; (ii)
against any action or agreement that would result in a breach in any material
respect of any covenant, representation or warranty or any other obligation or
agreement of the Company under the Merger Agreement; and (iii) against any
action or agreement (other than the Merger Agreement or the transactions
contemplated thereby) that would impede, interfere with, delay, postpone or
attempt to discourage the Merger including, but not limited to: (A) any
extraordinary corporate transaction, such as a merger, consolidation or other
business combination involving the Company and the Subsidiaries; (B) a sale or
transfer of a material amount of assets of the Company and the Subsidiaries or a
reorganization, recapitalization or liquidation of the Company and the
Subsidiaries; (C) any change in the management or the board of directors of the
Company, except as otherwise agreed to in writing by SLC; (D) any material
change in the present capitalization or dividend policy of the Company; or (E)
any other material change in the Company's corporate structure or business.
(b) Proxy. Stockholder hereby grants to SLC a proxy to vote the
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Shares as indicated in subsection (a) (or to take action by written consent in
lieu of such vote); provided that such proxy shall terminate upon the valid and
effective termination of this Agreement pursuant to Section 2 hereof.
Stockholder intends this proxy to be irrevocable and coupled with an interest
and will take such further action or execute such other instruments as may be
necessary to effectuate the intent of this proxy and hereby revokes any proxy
previously granted by Stockholder with respect to the Shares (other than to
another party subject to an agreement with SLC identical to this Agreement, to
the extent necessary to accomplish such party's granting of a proxy to SLC);
provided that such proxy shall terminate upon the valid and effective
termination of this Agreement pursuant to Section 2 hereof.
(c) No Alternative Disposition. Stockholder will not contract
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to sell, sell or otherwise transfer or dispose of any Shares, or any interest
therein or securities convertible thereunto or any voting rights with respect
thereto, other than pursuant to the Merger, without first having obtained SLC's
written consent. Stockholder will not take any action that would adversely
affect the voting power of any of the Shares.
2. Termination. This Agreement shall terminate on the first to
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occur of (a) the Effective Time, (b) the valid and effective termination of the
Merger Agreement in accordance with its terms; provided, however, that if such
termination is pursuant to Section 7.1(e), (f) or (g) of the Merger Agreement,
this Agreement shall not terminate until ITI has paid SLC $10,000,000 pursuant
to Section 5.6(b) of the Merger Agreement, and (c) written notice of termination
of this Agreement by SLC to Stockholder; provided further that nothing contained
in this Section 2 shall relieve Stockholder from any liability for any willful
breach of this Agreement prior to such termination.
3. Representation and Warranties of SLC. SLC hereby represents and
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warrants to Stockholder as follows:
(a) Organization and Existence. SLC is a corporation duly
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organized, validly existing and in good standing under the laws of the State of
Delaware and has the requisite corporate power to carry on its business as it is
now being conducted.
(b) Authority Relative to this Agreement. SLC has all requisite
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corporate power and authority to execute and deliver this Agreement and to
perform its obligations hereunder. The execution and delivery by SLC of this
Agreement have been duly and validly authorized by SLC, and no other corporate
proceedings on the part SLC are necessary to authorize this Agreement or to
consummate the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by SLC and, assuming this
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Agreement constitutes a valid and binding obligation of Stockholder, this
Agreement constitutes a valid and binding agreement of SLC enforceable against
it in accordance with its terms.
(c) Consents and Approvals; No Violation. Neither the execution
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and delivery of this Agreement by SLC nor the consummation of the transactions
contemplated hereby will (i) conflict with or result in any breach of any
provision of SLC's certificate of incorporation or bylaws, (ii) require any
consent, approval, authorization or permit of, or filing with or notification
to, any governmental or regulatory authority, except (A) in connection with the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "H-S-R
Act"), (B) such filings and approvals as may be required under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") or the "blue sky",
takeover or securities laws of various states, or (C) where the failure to
obtain such consent, approval, authorization or permit, or to make such filing
or notification, would not prevent or delay consummation of the transactions
contemplated by this Agreement or would not otherwise prevent SLC from
performing its obligations under this Agreement; (iii) result in a default (or
give rise to any right of termination, cancellation or acceleration) under any
of the terms, conditions or provisions of any license, agreement or other
instrument or obligation to which SLC or any of SLC's subsidiaries is a party or
by which any of them or any of their respective assets may be bound, except for
such defaults (or rights of termination, cancellation or acceleration) as to
which requisite waivers or consents have been obtained or which, in the
aggregate, would not result in a material adverse effect on SLC; or (iv) violate
any order, writ, injunction, decree, statute, rule or regulation applicable to
SLC, any of SLC's other subsidiaries or any of their respective assets, except
for violations which would not result in a material adverse effect on SLC.
4. Representations and Warranties of Stockholder. Stockholder
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hereby represents and warrants to SLC as follows:
(a) Ownership of Shares. Stockholder owns of record the number
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of Shares set forth in the preamble hereto and such Shares constitute all of the
shares of Common Stock of the Company owned of record by Stockholder.
Stockholder has sole voting power and sole power of disposition with respect to
all of such Shares, with no restrictions on Stockholder's rights of voting or
disposition pertaining thereto and no other person or entity has any right to
direct Stockholder with respect to voting any of the Shares or approve the
voting by Stockholder of any of the Shares or has any right to approve any
amendment or modification of this Agreement. Stockholder owns all of the Shares,
free and clear of any Lien, other than pursuant to this Agreement.
(b) Legal Capacity; Authority Relative to this Agreement.
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Stockholder has the legal capacity, power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this
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Agreement by Stockholder and the consummation by Stockholder of the transactions
contemplated hereby have been duly and validly authorized by Stockholder and no
other proceedings on the part of Stockholder or any of the Affiliates of
Stockholder are necessary to authorize this Agreement or to consummate the
transactions so contemplated hereby. This Agreement has been duly and validly
executed and delivered by Stockholder and, assuming this Agreement constitutes a
valid and binding obligation of SLC, this Agreement constitutes a valid and
binding agreement of Stockholder enforceable against Stockholder in accordance
with its terms.
(c) Consents and Approvals; No Violation. Neither the execution
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and delivery of this Agreement by Stockholder nor the consummation of the
transactions contemplated hereby will (i) require any consent, approval,
authorization or permit of, or filing with or notification to, any governmental
or regulatory authority, except (A) in connection with the H-S-R Act or under
the Exchange Act, or (B) where the failure to obtain such consent, approval,
authorization or permit, or to make such filing or notification, would not
prevent or delay consummation of the transactions contemplated by this Agreement
or would not otherwise prevent Stockholder from performing Stockholder's
obligations under this Agreement; (ii) result in a default (or give rise to any
right of termination, cancellation or acceleration) under any of the terms,
conditions or provisions of any license, agreement or other instrument or
obligation to which stockholder or any of Stockholder's Affiliates is a party or
by which Stockholder or any of such Affiliates or any of their respective assets
may be bound, except for such defaults (or rights of termination, cancellation
or acceleration) as to which requisite waivers or consents have been obtained or
(iv) violate any order, writ, injunction, decree, statute, rule or regulation
applicable to Stockholder, any of such Affiliates or any of their respective
assets.
5. Certain Covenants of Stockholder. Except in accordance with the
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terms of this Agreement, Stockholder hereby covenants and agrees as follows:
(a) No Solicitation. Stockholder shall not, nor shall it permit
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any of its affiliates to, nor shall it authorize or permit any officer, director
or employee of or any financial advisor, attorney or other advisor or
representative of, Stockholder or any of its affiliates to, directly or
indirectly (i) solicit, initiate, induce or encourage the submission of, any ITI
Takeover Proposal (as defined in the Merger Agreement), (ii) enter into any
agreement contemplating or with respect to any ITI Takeover Proposal, (iii)
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 ITI Takeover Proposal or (iv) approve, endorse or
recommend any ITI Takeover Proposal.
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(b) Restriction on Transfer, Proxies and Non-Interference.
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While this Agreement is in effect, Stockholder shall not 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 the Shares (each of the
foregoing, a "Transfer") unless, in connection with such Transfer, the
transferee executes an agreement, in form and substance satisfactory to SLC,
pursuant to which such transferee agrees to be bound by the terms and provisions
of this Agreement applicable to Stockholder and grants to SLC the proxy
described in Section 1(b) of this Agreement; provided, however, that Stockholder
may transfer up to 15,000 of the Shares to a private charitable foundation free
and clear from the terms and restrictions of this Agreement, including but not
limited to Section 6 hereof. While this Agreement is in effect, and except as
contemplated hereby, Stockholder will not, and shall cause Stockholder's
Affiliates to not (i) grant any proxies, deposit any Shares into a voting trust
or enter into a Voting Support Agreement with respect to any of the Shares or
(ii) 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 Stockholder's obligations
under this Agreement.
(c) Additional Shares. While this Agreement is in effect,
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Stockholder will promptly notify SLC of the number of any new Shares acquired or
beneficially owned by Stockholder or Stockholder's Affiliates, if any, after the
date hereof. Any such shares shall become Shares for purposes of this Agreement.
6. Further Assurances. From time to time, at any other party's
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request and without further consideration, each party hereto shall execute and
deliver such additional documents and take all such further action as may be
reasonably required to consummate and make effective, in the most expeditious
manner practicable, the transactions contemplated by this Agreement. All
certificates representing Shares shall bear, until the termination of this
Agreement, in a conspicuous place the following legend:
The Shares represented by this certificate may not be sold, exchanged or
otherwise transferred or disposed of except in compliance with the terms
and conditions of the Voting Support Agreement, dated as of September 28,
1999, between SLC Technologies, Inc. and Xxxxxxx Xxx.
7. Stop Transfer Order. In furtherance of this Agreement,
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Stockholder hereby authorizes the Company's counsel to notify the Company's
transfer agent that a stop transfer order is to be entered with respect to all
of the Shares (and that this Agreement places limits on the voting and transfer
of the Shares).
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8. Miscellaneous.
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(a) Entire Agreement; Assignment. This Agreement (i)
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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
SLC may assign its rights and obligations hereunder to any subsidiary of SLC,
but no such assignment shall relieve SLC of its obligations hereunder if such
assignee does not perform such obligations.
(b) Amendments. This Agreement may not be modified, amended,
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altered or supplemented, except upon the execution and delivery of a written
agreement executed by the parties hereto.
(c) Governing Law. This Agreement shall be governed by and
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construed in accordance with the internal laws of the State of Delaware.
(d) Specific Performance. Each of the parties hereto recognizes
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and acknowledges that a breach by Stockholder of any covenants or agreements
contained in this Agreement will cause SLC 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 SLC 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.
(e) Counterparts. This Agreement may be executed in any number
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of counterparts, each of which shall be deemed to be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
(f) Descriptive Headings. The descriptive headings used herein
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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.
(g) Severability. Whenever possible, each provision or portion
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of any provision of this 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 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 Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
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(h) Notices. All notices, requests, claims, demands and other
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communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered in person, by overnight courier, by facsimile
transmission with confirmation of receipt, or by registered or certified mail
(postage prepaid, return receipt requested) to the respective parties as
follows:
(i) if to SLC, to:
SLC Technologies, Inc.
c/o Berwind Group
0000 Xxxxxx Xxxxxx Xxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
General Counsel
Fax No. 000-000-0000
with a copy to:
Dechert Price & Xxxxxx
4000 Xxxx Atlantic Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Xx.
Fax No. (000) 000-0000
if to Stockholder, to:
Xxxxxxx Xxx
___________________________
___________________________
___________________________
Fax No.:
with a copy to:
___________________________
___________________________
___________________________
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Attention:
Fax No.:
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
(provided that notice of any change of address shall be effective only upon
receipt thereof).
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
SLC TECHNOLOGIES, INC.
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: CFO, SLC Technologies, Inc.
/s/ Xxxxxxx Xxx
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Xxxxxxx Xxx
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