FORM OF VOTING AND SUPPORT AGREEMENT WITH RESPECT TO APPROXIMATELY 27% OF THE VOTING POWER
EXHIBIT 99.2
FORM OF VOTING AND SUPPORT AGREEMENT
WITH RESPECT TO APPROXIMATELY 27% OF THE VOTING POWER
This Voting and Support Agreement (“Support Agreement”) is entered into as of
June 26, 2011, by and between
Scientific Conservation,
Inc., a Delaware corporation
(“Parent”), 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, as amended (the “Exchange Act”)) of
certain shares of common stock of Servidyne, inc., a Georgia corporation (the
“Company”).
B. Parent, Scrabble Acquisition, inc., a Georgia corporation (“Merger Sub”),
and the Company are entering into an Agreement and Plan of Merger of even date herewith (the
“Merger Agreement”) which provides (subject to the conditions set forth therein) for the
merger of Merger Sub into the Company (the “Merger”).
C. In the Merger, each outstanding share of common stock of the Company is to be converted
into the right to receive $3.50 in cash, except as otherwise provided in the Merger Agreement.
D. Shareholder is entering into this Support Agreement in order to induce Parent to enter into
the Merger Agreement.
AGREEMENT
The parties to this Support Agreement, intending to be legally bound, agree as follows:
SECTION 1. CERTAIN DEFINITIONS
For purposes of this Support Agreement:
(a) The terms “Acquired Corporations,” “Acquisition Inquiry,” “Acquisition Proposal,”
“Acquisition Transaction,” “Affiliate,” “Company Common Stock,” “Person” and “Triggering Event,”
and other capitalized terms not defined in this Support Agreement, shall have the respective
meanings assigned to those terms in the Merger Agreement.
(b) 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 Exchange Act) of such security.
(c) “Proxy Expiration Date” shall mean the earlier of (i) the date upon which the Merger
Agreement is validly terminated, (ii) the date upon which the Merger becomes effective, or (iii)
upon the withdrawal or modification of the Company Board Recommendation.
(d) “Subject 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 Support 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 Support Agreement
through the Proxy Expiration Date.
(e) “Support Period” shall mean the period commencing on (and including) the date of this
Support Agreement and ending on (and including) the Proxy Expiration Date.
(f) A Person shall be deemed to have a 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 Parent; (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 Parent; or (iii) reduces such Person’s beneficial ownership of,
interest in or risk relating to such security.
SECTION
2. TRANSFER OF SUBJECT SECURITIES AND VOTING RIGHTS
2.1 Restriction on Transfer of Subject Securities. Subject to Section 2.3, during the Support
Period, Shareholder shall not, directly or indirectly, cause or permit any Transfer of any of the
Subject Securities to be effected. Without limiting the generality of the foregoing, during the
Support Period, Shareholder shall not tender, agree to tender or permit to be tendered any of the
Subject Securities in response to or otherwise in connection with any tender or exchange offer.
2.2 Restriction on Transfer of Voting Rights. During the Support Period, Shareholder shall
ensure that: (a) none of the Subject Securities is deposited into a voting trust; and (b) no proxy
is granted (other than the Proxy (as defined below), and no voting agreement or similar agreement
is entered into, with respect to any of the Subject Securities.
2.3 Permitted Transfers. Section 2.1 shall not prohibit a transfer of Subject Securities by
Shareholder: (a) if Shareholder is an individual (i) to any member of Shareholder’s immediate
family, or to a trust for the benefit of Shareholder or any member of Shareholder’s immediate
family, or (ii) upon the death of Shareholder; or (b) 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; provided, however, that a transfer referred to
in this sentence shall be permitted only if, as a precondition to such transfer, the transferee
agrees in a written document, reasonably satisfactory in form and substance to Parent, to be bound
by all of the terms of this Support Agreement.
SECTION
3. VOTING OF SHARES
3.1 Voting Covenant. Shareholder hereby agrees that, during the Support Period, 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 Parent, Shareholder shall
cause the Subject Securities to be voted:
(a) in favor of (i) the Merger, the execution and delivery by the Company of the Merger
Agreement and the adoption and approval of the Merger Agreement and the terms thereof, (ii) each of
the
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other actions contemplated by the Merger Agreement and (iii) any action in furtherance of any
of the foregoing;
(b) against any action or agreement that would result in a breach of any representation,
warranty, covenant or obligation of the Company in the Merger Agreement; and
(c) against the following actions (other than the Merger and the transactions contemplated by
the Merger Agreement): (i) any extraordinary corporate transaction, such as a merger, consolidation
or other business combination involving the Company or any other Acquired Corporation; (ii) any
sale, lease, sublease, license, sublicense or transfer of a material portion of the rights or other
assets of the Company or any other Acquired Corporation; (iii) any reorganization,
recapitalization, dissolution or liquidation of the Company or any subsidiary of the Company: (iv)
any change in a majority of the board of directors of the Company; (v) any amendment to the
Company’s certificate of incorporation or bylaws; (vi) any material change in the capitalization of
the Company or the Company’s corporate structure; and (vii) any other action which 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 Merger Agreement or this
Support Agreement.
During the Support Period, Shareholder shall not enter into any agreement or understanding with any
Person to vote or give instructions in any manner inconsistent with clause “(a)”, clause “(b)” or
clause “(c)” of the preceding sentence.
3.2 Proxy; Further Assurances.
(a) Contemporaneously with the execution of this Support Agreement: (i) Shareholder shall
deliver to Parent a proxy in the form attached to this Support Agreement as Exhibit A, which shall
be irrevocable (at all times prior to the Proxy Expiration Date) to the fullest extent permitted by
law with respect to the shares referred to therein (the “Proxy”); and (ii) Shareholder
shall cause to be delivered to Parent 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 Exchange Act), but not of
record, by Shareholder. The Proxy shall expire and be of no further force or effect upon the Proxy
Expiration Date. It is agreed that Parent will only vote the shares of Company Common Stock
subject to the Proxy with respect to the matters specified in, and in accordance with the
provisions of, Section 3.1 hereof.
(b) During the Support Period, sShareholder shall, at Shareholder’s own reasonable expense,
perform such further acts and execute such further proxies and other documents and instruments as
may reasonably be required to vest in Parent the power to carry out and give effect to the
provisions of this Support Agreement.
(c) During the Support Period, Shareholder shall not enter into any tender, voting or other
such agreement, or grant a proxy or power of attorney, with respect to any of the Subject
Securities that is inconsistent with this Support Agreement or otherwise take any other action with
respect to any of the Subject Securities that would in any way restrict, limit or interfere with
the performance of any of Shareholder’s obligations hereunder or any of the actions contemplated
hereby.
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SECTION
4. WAIVER OF APPRAISAL RIGHTS
Shareholder hereby irrevocably and unconditionally waives, and agrees to cause to be waived
and to prevent the exercise of, any rights of appraisal, any dissenters’ rights and any similar
rights relating to the Merger or any related transaction involving Parent that Shareholder or any
other Person may have by virtue of, or with respect to, any shares of Company Common Stock Owned by
Shareholder.
SECTION 5. CERTAIN COVENANTS
Shareholder agrees that, during the Support Period, Shareholder shall not directly or
indirectly, and shall ensure that each of Shareholder’s Representatives (as defined in the Merger
Agreement) does not directly or indirectly:
(a) solicit, initiate, encourage, assist, induce or facilitate the making, submission or
announcement of any Acquisition Proposal or Acquisition Inquiry or take any action that could
reasonably be expected to lead to an Acquisition Proposal or Acquisition Inquiry;
(b) furnish or otherwise provide access to any information regarding any of the Acquired
Corporations to any Person in connection with or in response to an Acquisition Proposal or
Acquisition Inquiry;
(c) engage in discussions or negotiations with any Person with respect to any Acquisition
Proposal or Acquisition Inquiry;
(d) make any disclosure or communication to any Person (other than Shareholder or any
Representative of Shareholder) regarding the Merger, any of the other Contemplated Transactions,
this Support Agreement, the Merger Agreement or any Acquisition Proposal or Acquisition Inquiry
(without Parent’s prior written approval) unless (A) (i) Shareholder shall have been advised by
Shareholder’s outside legal counsel that such disclosure or communication is required by applicable
law and (ii) prior to making such disclosure or communication, Shareholder shall have provided
Parent with reasonable (and in no event less than 48 hours’) advance written notice of
Shareholder’s intent to make such disclosure or communication, the content of such disclosure or
communication and the identities of the Persons to which such disclosure or communication is
intended to be made, or (B) such disclosure or communication contains only publicly available
information;
(e) support, endorse, approve, adopt or accept any Acquisition Proposal, or enter into any
letter of intent, memorandum of understanding, agreement in principle or Contract constituting or
relating directly or indirectly to any Acquisition Proposal or Acquisition Transaction;
(f) take any action that could result in the revocation or invalidation of the Proxy or that
is reasonably determined by Parent to suggest that Shareholder no longer supports the Merger; or
(g) agree or publicly propose to take any of the actions referred to in this Section 5 or
otherwise prohibited by this Support Agreement.
Shareholder shall immediately cease and discontinue any existing discussions with any Person that
related to any Acquisition Proposal or Acquisition Inquiry.
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SECTION
6. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER
Shareholder hereby represents and warrants to Parent as follows:
6.1 Authorization, etc. Shareholder has the absolute and unrestricted right, power, authority
and capacity to execute and deliver this Support Agreement and the Proxy and to perform
Shareholder’s obligations hereunder and thereunder. This Support Agreement and the Proxy have been
duly authorized, 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 organized.
If Shareholder is a general or limited partnership, then Shareholder is a partnership duly
organized, validly existing and in good standing under the laws of the jurisdiction in which it was
organized. Shareholder and its Representatives have reviewed and understand the terms of this
Support Agreement, and Shareholder has consulted and relied upon Shareholder’s counsel in
connection with this Support Agreement.
6.2 No Conflicts or Consents.
(a) The execution and delivery of this Support Agreement and the Proxy by Shareholder do not,
and the performance of this Support Agreement and the Proxy by Shareholder will not: (i) conflict
with or violate any law, rule, regulation, order, decree or judgment applicable to Shareholder or
by which Shareholder or any of Shareholder’s 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 Securities pursuant to, any
Contract to which Shareholder is a party or by which Shareholder or any of Shareholder’s Affiliates
or properties is or may be bound or affected.
(b) The execution and delivery of this Support Agreement and the Proxy by Shareholder do not,
and the performance of this Support Agreement and the Proxy by Shareholder will not, require any
consent or approval of any Person. The execution and delivery of any additional proxy pursuant to
Section 3.2(a)(ii) with respect to any shares of Company Common Stock that are owned beneficially
but not of record by Shareholder do not, and the performance of any such additional proxy will not,
require any consent or approval of any Person. No consent of, or registration, declaration or
filing with, any Governmental Body is required to be obtained or made by or with respect to
Shareholder in connection with the execution, delivery or performance of this Support Agreement or
the consummation of the transactions contemplated hereby, other than such reports under Sections
13(d), 14 and 16 of the Exchange Act as may be required in connection with this Support Agreement.
6.3 Title to Securities. As of the date of this Support 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) 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
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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 of Shareholder contained
in this Support Agreement are accurate and complete in all respects as of the date of this Support
Agreement, and will be accurate in all respects at all times through and including the Proxy
Expiration Date as if made as of any such time or date.
6.5 Brokers. No financial advisor, investment banker, broker, finder, agent or other Person
is entitled to any financial advisor’s, investment banking, brokerage, finder’s or other fee or
commission in connection with the transactions contemplated by this Support Agreement based upon
arrangements made by or on behalf of Shareholder.
6.6 Merger Agreement. Shareholder understands and acknowledges that Parent is entering into
the Merger Agreement in reliance upon Shareholder’s execution and delivery of this Support
Agreement.
SECTION
7. REPRESENTATIONS AND WARRANTIES OF PARENT
Parent hereby represents and warrants to Shareholder as follows:
7.1 Authorization, etc. This Support Agreement has been duly authorized, executed and
delivered by Parent and constitutes the legal, valid and binding obligation of Parent, enforceable
against Parent in accordance with its 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. Parent is a corporation duly
organized, validly existing and in good standing under the laws of the jurisdiction in which it was
organized.
7.2 No Conflicts or Consents.
(a) The execution and delivery of this Support Agreement by Parent does not, and the
performance of this Support Agreement by Parent will not conflict with or violate any law, rule,
regulation, order, decree or judgment applicable to Parent or by which Parent or any of Parent’s
properties is or may be bound or affected.
(b) The execution and delivery of this Support Agreement by Parent does not, and the
performance of this Support Agreement by Parent will not, require any consent or approval of any
Person. No consent of, or registration, declaration or filing with, any Governmental Body is
required to be obtained or made by or with respect to Parent in connection with the execution,
delivery or performance of this Support Agreement or the consummation of the transactions
contemplated hereby other than such reports under Section 13(d), 14 and 16 of the Exchange Act as
may be required in connection with the Support Agreement.
7.3 Accuracy of Representations. The representations and warranties of Parent contained in
this Support Agreement are accurate and complete in all respects as of the date of this Support
Agreement, and will be accurate in all respects at all times through and including the Proxy
Expiration Date as if made as of any such time or date.
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SECTION
8. ADDITIONAL COVENANTS OF SHAREHOLDER
8.1 Shareholder Information. Shareholder hereby agrees to permit the Company, Parent and
Merger Sub to publish and disclose in the Proxy Statement Shareholder’s identity and ownership of
shares of Company Common Stock and the nature of Shareholder’s commitments, arrangements and
understandings under this Support Agreement.
8.2 Stop Transfer Instructions. If requested by Parent, Shareholder shall cause the Company
to issue appropriate “stop transfer” instructions to the Company’s transfer agent to ensure
compliance with the restrictions contained in Section 2 hereof.
SECTION
9. MISCELLANEOUS
9.1 Survival of Representations, Warranties and Agreements. Except as otherwise provided
herein, all representations, warranties, covenants and agreements made by Shareholder or Parent in
this Support Agreement, and Parent’s and Shareholder’s respective rights and remedies with respect
thereto, shall survive the Proxy Expiration Date.
9.2 Expenses. All costs and expenses incurred in connection with the transactions contemplated
by this Support Agreement shall be paid by the party incurring such costs and expenses.
9.3 Notices. Each notice, request, demand or other communication under this Support Agreement
shall be in writing and shall be deemed to have been duly given, delivered or made as follows: (a)
if delivered by hand, when delivered; (b) if sent on a business day by email before 5:00 p.m.
(Georgia time) on the day sent by email and receipt is confirmed, when transmitted; (c) if sent by
email on a day other than a business day and receipt is confirmed, or if sent by email after 5:00
p.m. (Georgia time) on the day sent by email and receipt is confirmed, on the business day
following the date on which receipt is confirmed; (d) if sent by registered, certified or first
class mail, the third business day after being sent; and (e) if sent by overnight delivery via a
national courier service, two business days after being delivered to such courier, in each case to
the address or email set forth beneath the name of such party below (or to such other address or
email as such party shall have specified in a written notice given to the other parties hereto):
if to Shareholder:
at the address set forth on the signature page hereof;
and if to Parent:
Scientific Conservation, Inc.
000 Xxx Xxxxxxxxxx Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Atttention: General Counsel
Facsimile: (000) 000 0000
with a copy to (which copy shall not constitute notice):
000 Xxx Xxxxxxxxxx Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Atttention: General Counsel
Facsimile: (000) 000 0000
with a copy to (which copy shall not constitute notice):
Xxxxxx LLP
0000 Xxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx
0000 Xxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx
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Facsimile: (000) 000 0000
Email: xxxxx@xxxxxx.xxx
Email: xxxxx@xxxxxx.xxx
9.4 Severability. Any term or provision of this Support Agreement that is invalid or
unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability
of the remaining terms and provisions hereof or the validity or enforceability of the offending
term or provision in any other situation or in any other jurisdiction. If the final judgment of a
court of competent jurisdiction declares that any term or provision hereof is invalid or
unenforceable, the parties hereto agree that the court making such determination shall have the
power to limit such term or provision, to delete specific words or phrases, or to replace any
invalid or unenforceable term or provision with a term or provision that is valid and enforceable
and that comes closest to expressing the intention of the invalid or unenforceable term or
provision, and this Support Agreement shall be enforceable as so modified. In the event such court
does not exercise the power granted to it in the prior sentence, the parties hereto agree to
replace such invalid or unenforceable term or provision with a valid and enforceable term or
provision that will achieve, to the extent possible, the economic, business and other purposes of
such invalid or unenforceable term or provision.
9.5 Entire Agreement. This Support 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,
written or oral, between the parties with respect thereto. No addition to or modification of any
provision of this Support Agreement shall be binding upon either party unless made in writing and
signed by both parties. No agreement, understanding or arrangement of any nature regarding the
subject matter of this Support Agreement shall be deemed to exist between Parent and Shareholder
unless and until this Support Agreement has been duly and validly executed on behalf of both
parties.
9.6 Assignment; Binding Effect. Except as provided herein, neither this Support Agreement nor
any of the interests or obligations hereunder may be assigned or delegated by Shareholder, and any
attempted or purported assignment or delegation of any of such interests or obligations shall be
void. Subject to the preceding sentence, this Support Agreement shall be binding upon Shareholder
and [Shareholder’s heirs, estate, executors and personal representatives and]1
Shareholder’s successors and assigns, and shall inure to the benefit of Parent and its successors
and assigns. Without limiting any of the restrictions set forth in Section 2 or elsewhere in this
Support Agreement, this Support Agreement shall be binding upon any Person to whom any Subject
Securities are transferred. Nothing in this Support Agreement, expressed or implied, is intended to
confer on any Person (other than Parent and its successors and assigns) any rights or remedies of
any nature.
9.7 Independence of Obligations. The covenants and obligations of Shareholder set forth in
this Support Agreement shall be construed as independent of any other agreement or arrangement
between Shareholder, on the one hand, and the Company or Parent, on the other. The existence of any
claim or cause of action by Shareholder against the Company or Parent shall not constitute a
defense to the enforcement of any of such covenants or obligations against Shareholder.
9.8 Actions of Representatives. Shareholder acknowledges and agrees that any action
inconsistent with any provision of this Support Agreement that is taken by any Representative,
partner, member or Affiliate of Shareholder, shall be deemed to constitute a breach of such
provision by Shareholder.
| 1 | Bracketed language for individuals only. |
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9.9 Specific Performance. Shareholder agrees that irreparable damage would occur in the event
that any of the provisions of this Support Agreement or the Proxy were not performed in accordance
with its specific terms or were otherwise breached, and that monetary damages, even if available,
would not be an adequate remedy therefor. Accordingly, Shareholder agrees that, in the event of
any breach or threatened breach by Shareholder of any covenant or obligation contained in this
Support Agreement or in the Proxy, Parent shall be entitled, without proof of actual damages (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 Parent 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 9.9. 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.
9.10 Non-Exclusivity. The rights and remedies of Parent under this Support 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 Parent under this Support
Agreement, and the obligations and liabilities of Shareholder under this Support Agreement, are in
addition to their respective rights, remedies, obligations and liabilities under common law
requirements and under all applicable Legal Requirements.
9.11 Governing Law; Jurisdiction; Waiver of Jury Trial.
(a) This Support Agreement shall be governed by, and construed and enforced in accordance
with, the laws of the State of Georgia, regardless of the laws that might otherwise govern under
applicable principles of conflicts of laws thereof. Service of any process, summons, notice or
document to either party’s address and in the manner set forth in Section 9.3 shall be effective
service of process for any such action.
(b) EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS SUPPORT AGREEMENT
OR THE PROXY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY
IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS SUPPORT AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BY
THIS SUPPORT AGREEMENT OR TO THE PROXY. EACH PARTY ACKNOWLEDGES, AGREES AND CERTIFIES THAT: (i) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD, IN THE EVENT OF LITIGATION, SEEK TO PREVENT OR DELAY ENFORCEMENT OF SUCH
WAIVER; (ii) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER; (iii) IT MAKES SUCH
WAIVER VOLUNTARILY; AND (iv) IT HAS BEEN INDUCED TO ENTER INTO THIS SUPPORT AGREEMENT BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11(b)
9.12 Counterparts. This Support 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. The exchange of a fully executed Support Agreement (in
counterparts or otherwise) by facsimile or by electronic delivery shall be sufficient to bind the
parties to the terms of this Support Agreement.
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9.13 Attorneys’ Fees. If any legal action or other legal proceeding relating to this Support
Agreement or the enforcement of any provision of this Support 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).
9.14 Waiver. No failure or the part of Parent to exercise any power, right, privilege or
remedy under this Support Agreement, and no delay on the part of Parent in exercising any power,
right, privilege or remedy under this Support 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. Parent shall not be deemed to have waived any claim available to Parent
arising out of this Support Agreement, or any power, right, privilege or remedy of Parent under
this Support 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 Parent; and
any such waiver shall not be applicable or have any effect except in the specific instance in which
it is given.
9.15 Fiduciary Responsibilities.
Shareholder is signing this Agreement solely in his or its capacity as an owner of shares of
Company Common Stock and, notwithstanding any other provision of this Support Agreement to the
contrary, nothing contained in this Support Agreement shall limit or otherwise restrict the rights
and obligations of any Shareholder or any Representative of a Shareholder serving on the board of
directors of the Company or any other director or officer in his capacity as a director or officer
of the Company from taking any action, or omitting to take any action in his or her capacity as a
director or officer of the Company, to the extent such action is permitted to be taken or omitted
to be taken by the Company or the Company’s board of directors under the Merger Agreement, and no
such action taken, or omitted to be taken, by such Representative or other director or officer in
such capacity shall be deemed to constitute a breach of any provision of this Support Agreement.
9.16 Construction.
(a) For purposes of this Support 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 Support Agreement.
(c) As used in this Support 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) Unless otherwise indicated or the context otherwise requires: (i) all references in this
Support Agreement to “Sections” and “Exhibits” are intended to refer to Sections of this Support
Agreement and Exhibits to this Support Agreement; and (ii) the words “herein,” “hereof” and
“hereunder,” and words of similar import, shall be construed to refer to this Agreement in its
entirety and not to any particular provision of this Agreement.
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(e) The captions contained in this Support Agreement are for convenience of reference only,
shall not be deemed to be a part of this Support Agreement and shall not be referred to in
connection with the construction or interpretation of this Support Agreement.
[Remainder of page intentionally left blank]
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Parent and Shareholder have caused this Support Agreement to be executed as of the date first
written above.
| Scientific Conservation, Inc. | ||||
Signature Page to Voting and Support Agreement
Parent and Shareholder have caused this Support Agreement to be executed as of the date first
written above.
| Shareholder | ||||||
| Signature | ||||||
| Printed Name | ||||||
| Address: | ||||||
| Facsimile: | ||||||
| Additional Securities | ||||
| Shares Held of Record | Options and Other Rights | Beneficially Owned | ||
Signature Page to Voting and Support Agreement
Exhibit A
Form Of Irrevocable Proxy
Form Of Irrevocable Proxy
The undersigned shareholder (the “Shareholder”) of Servidyne, Inc., a Georgia
corporation (the “Company”), hereby irrevocably (to the fullest extent permitted by law)
appoints and constitutes Xxxx XxXxxxxx, Xxxx Xxxxx, Xxxx XxXxxxx and Scientific Conservation,
Inc., a Delaware corporation (“Parent”), 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, shall survive the Shareholder’s liquidation or termination, is
coupled with an interest and is granted in connection with, and as security for, the Voting and
Support Agreement, dated as of the date hereof, between Parent and the Shareholder (the
“Support Agreement”), and is granted in consideration of Parent entering into the Agreement
and Plan of Merger, dated as of the date hereof, among Parent,
Scrabble Acquisition,
Inc., a wholly-owned subsidiary of Parent, and the Company (the “Merger Agreement”).
This proxy will terminate on the Proxy Expiration Date (as defined in the Support Agreement).
The attorneys and proxies named above will be empowered, and may exercise this proxy, to vote
the Shares at any time until (and including) the Proxy Expiration Date 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 (A) the merger contemplated by the Merger Agreement (the
“Merger”), the execution and delivery by the Company of the Merger Agreement and the
adoption and approval of the Merger Agreement and the terms thereof, (B) each of the other
actions contemplated by the Merger Agreement and (C) any action in furtherance of any of the
foregoing; and
(ii) against any action or agreement that would result in a breach of any
representation, warranty, covenant or obligation of the Company in the Merger Agreement; and
(iii) against the following actions (other than the Merger and the other transactions
contemplated by the Merger 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, sublease, license, sublicense or transfer of
a material portion of the rights or other assets of the Company or any direct or indirect
subsidiary of the Company; (C) any reorganization, recapitalization, dissolution or
liquidation of the Company or any direct or indirect 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 Merger or any of the other transactions
contemplated by the Merger Agreement or the Support Agreement.
A-1
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.
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).
Any term or provision of this proxy that is invalid or unenforceable in any situation in any
jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision in any other situation
or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares
that any term or provision hereof is invalid or unenforceable, the Shareholder agrees that the
court making such determination shall have the power to limit such term or provision, to delete
specific words or phrases, or to replace such term or provision with a term or provision that is
valid and enforceable and that comes closest to expressing the intention of the invalid or
unenforceable term or provision, and this proxy shall be enforceable as so modified. In the event
such court does not exercise the power granted to it in the prior sentence, the parties hereto
agree to replace such invalid or unenforceable term or provision with a valid and enforceable term
or provision that will achieve, to the extent possible, the economic, business and other purposes
of such invalid or unenforceable term or provision.
Dated: June __, 2011
| Shareholder | ||||
| Number of shares of common stock of the Company | ||||
| owned of record as of the date of this proxy: | ||||
Signature Page to Irrevocable Proxy
