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EXHIBIT 99.2
STOCKHOLDER VOTING AGREEMENT
This STOCKHOLDER VOTING AGREEMENT (the "Agreement") is entered into on
July 30, 1997, by and among the undersigned stockholder(s) (collectively, if
more than one, "Stockholder") of Tango, a Delaware corporation ("Tango"), and
Twister, a Kansas corporation ("Twister").
WITNESSETH:
WHEREAS, concurrently with the execution of this Agreement, Twister,
Merger Sub and Tango are entering into an Agreement and Plan of Merger of even
date herewith (the "Merger Agreement") (capitalized terms used but not defined
herein shall have the same meaning assigned to such terms in the Merger
Agreement), pursuant to which Tango proposes to combine with Twister by means of
a merger (the "Merger") of Merger Sub with and into Twister in which (a) each
issued and outstanding share of common stock, no par value, of Twister (the
"Twister Common Stock"), other than shares of Twister Common Stock that are
owned by Twister as treasury stock, shall automatically be converted into the
right to receive 1.1 shares (the "Exchange Ratio") of the common stock, $.01 par
value, of Tango (the "Tango Common Stock"); (b) the issued and outstanding
shares of the common stock, $.01 par value, of Merger Sub shall be converted
into one hundred (100) shares of fully paid and nonassessable shares of common
stock, no par value, of the Surviving Corporation; and (c) each option to
purchase Twister Common Stock outstanding as of the Effective Time shall be
assumed by Twister as provided in Section 5.7 of the Merger Agreement;
WHEREAS, Stockholder owns, as of the date hereof, the shares of Tango
Common Stock as set forth on Schedule A attached hereto (collectively, the
"Existing Shares," together with any shares of Tango Common Stock acquired after
the date hereof and prior to the termination hereof, hereinafter collectively
referred to as the "Shares"); and
WHEREAS, Twister has entered into the Merger Agreement in reliance on
Stockholder's representations, warranties, covenants and agreements hereunder.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
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ARTICLE I
PROXY
1.1 PROXY.
(a) With respect to the Merger Agreement or any Third Party Transaction
for which approval of the stockholders of Tango is sought, and any transactions
contemplated thereby, Stockholder hereby irrevocably makes, constitutes and
appoints Twister to act as Stockholder's true and lawful proxy and
attorney-in-fact in the name and on behalf of Stockholder, with full power to
appoint a substitute or substitutes. Stockholder further directs Twister, and
Twister hereby agrees, to vote all of the Shares which are entitled to vote at
any meeting of the shareholders of Tango (whether annual or special and whether
or not an adjourned meeting), or by written consent in the place and stead of
Stockholder in favor of the Merger as set forth in the Merger Agreement and
against any Third Party Transaction. By giving this proxy Stockholder hereby
revokes any other proxy granted by Stockholder at any time with respect to the
Shares and no subsequent proxies will be given with respect thereto by
Stockholder.
(b) All power and authority hereby conferred is coupled with an
interest and is irrevocable, shall not be terminated by any act of Stockholder
or by operation of law, by lack of appropriate power of authority, or by the
occurrence of any other event or events and shall be binding upon all
beneficiaries, heirs at law, legatees, distributees, successors, assigns and
legal representatives of Stockholder. If after the execution of this Agreement,
Stockholder shall cease to have appropriate power or authority, or if any other
such event or events shall occur, Twister is nevertheless authorized and
directed to vote the Shares in accordance with the terms of this Agreement as if
such lack of appropriate power or authority or other event or events had not
occurred and regardless of notice thereof.
(c) Stockholder agrees to use all good faith efforts to cause any
record owner of the Shares of which Stockholder is the beneficial owner to grant
to Twister a proxy of the same effect as that contained herein. Stockholder
shall perform such further acts and execute such further documents as may be
required to vest in Twister the sole power to vote the Shares in accordance
herewith during the term of the proxy granted herein.
(d) The proxy granted herein shall expire on the date of termination of
this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
2.1 REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER. Stockholder
represents and warrants to Twister as follows:
(a) Ownership of Shares. On the date of this Agreement the Existing
Shares are all of the Shares currently beneficially owned by Stockholder.
Stockholder does not have any rights
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to acquire any additional shares of Tango Common Stock other than as set forth
on Schedule A attached hereto. Other than as set forth on Schedule B attached
hereto, Stockholder currently has good, valid and marketable title to the
Shares, free and clear of all liens, encumbrances, restrictions, options,
warrants, rights to purchase and claims of every kind (other than the
encumbrances created by this Agreement and other than restrictions on transfer
under applicable federal and state securities laws).
(b) Power; Binding Agreement. Stockholder has the full legal right,
power and authority to enter into and perform all of Stockholder's obligations
under this Agreement. The execution and delivery of this Agreement by
Stockholder will not violate any other agreement to which Stockholder is a party
including, without limitation, any voting agreement, shareholders agreement or
voting trust. This Agreement has been duly executed and delivered by Stockholder
and constitutes a legal, valid and binding agreement of Stockholder, enforceable
in accordance with its terms, except as the enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium and similar laws, now or
hereafter in effect affecting creditors' rights and remedies generally or
general principles of equity. Neither the execution or delivery of this
Agreement nor the consummation by Stockholder of the transactions contemplated
hereby will (i) require any consent or approval of or filing with any person or
entity or (ii) constitute a violation of, conflict with or constitute a default
under, any contract, commitment, agreement, understanding, arrangement or other
restriction of any kind to which Stockholder is a party or by which Stockholder
is bound.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
TWISTER
3.1 REPRESENTATIONS AND WARRANTIES OF TWISTER. Twister represents and
warrants to Stockholder as follows:
(a) Power; Binding Agreement. Twister has full legal right, power and
authority to enter into and perform all of its obligations under this Agreement.
The execution and delivery of this Agreement by Twister will not violate any
other agreement to which Twister is a party. This Agreement has been duly
executed and delivered by Twister and constitutes a legal, valid and binding
agreement of Twister, enforceable in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium and similar laws, now or hereafter in effect, affecting creditors'
rights and remedies generally or general principles of equity. Neither the
execution of this Agreement nor the consummation by Twister of the transactions
contemplated hereby will (i) require any consent or approval of or filing with
any person or entity or (ii) constitute a violation of, conflict with or
constitute a default under, any contract, commitment, agreement, understanding,
arrangement or other restriction of any kind to which Twister is a party or by
which it is bound.
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ARTICLE IV
TERMINATION
4.1 TERMINATION. This Agreement (other than the provisions of Section
6.1 hereof) shall terminate on the earlier of (i) the date on which Twister and
Stockholder mutually consent in writing to terminate this Agreement, (ii) the
date of the Closing (as defined in the Merger Agreement), (iii) the termination
of the Merger Agreement in accordance with the terms thereof or (iv) June 30,
1998.
ARTICLE V
CERTAIN COVENANTS OF STOCKHOLDER
5.1 CERTAIN COVENANTS OF STOCKHOLDER.
(a) Except in accordance with the provisions of this Agreement,
Stockholder agrees, while this Agreement is in effect, not to, directly or
indirectly:
(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 the Shares unless the party to whom such Shares are (or
are to be) sold, pledged, assigned or otherwise transferred shall have executed
an acknowledgement and ratification of the grant of proxy effected by this
Agreement, in such form and substance as are reasonably acceptable to Twister;
or
(ii) Grant any proxy, deposit any Shares into a voting trust or
enter into a voting agreement with respect to any of the Shares.
(b) Stockholder agrees, while this Agreement is in effect, to notify
Twister promptly of the number of any shares of Tango Common Stock acquired by
such Stockholder after the date hereof.
(c) Until such time as this Agreement is terminated, Stockholder agrees
to take any actions as reasonably requested by Tango, within his, her or its
power as are necessary or appropriate to enable Tango to satisfy the conditions
precedent set forth in the Merger Agreement to Twister's obligations to
consummate the Merger, and to use his, her or its best efforts to cause Tango to
satisfy such conditions precedent.
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ARTICLE VI
MISCELLANEOUS
6.1 NOTICES. All notices or other communications required or permitted
hereunder shall be in writing (except as otherwise provided herein) and shall be
deemed duly given when received by delivery in person, by telecopy, telex or
telegram or by certified mail, postage prepaid, or by an overnight courier
service, addressed to Stockholder at the address(es) set forth on the signature
page hereof and to Twister at:
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With copies to:
Rogers & Hardin LLP
2700 International Tower, Peachtree Center
229 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attn: Alan C. Leet, Esq.
Telecopier: (404) 525-2224
6.2 ENTIRE AGREEMENT. This Agreement, together with the documents
expressly referred to herein, constitute the entire agreement among the parties.
hereto with respect to the subject matter contained herein and supersede all
prior agreements and understandings among the parties with respect to such
subject matter.
6.3 ASSIGNS. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors, assigns and
personal representatives, but neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto without the prior written consent of the other parties.
6.4 GOVERNING LAW. This Agreement, and all matters relating hereto,
shall be governed by, and construed in accordance with the laws of the State of
Delaware without giving effect to the principles of conflicts of laws thereof.
6.5 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same document.
6.6 SEVERABILITY. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining
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terms and provisions of this Agreement or affecting the validity or
enforceability of any of the terms or provisions of this Agreement in any other
jurisdiction. If any provision of this Agreement is so broad as to be
unenforceable, such provision shall be interpreted to be only so broad as is
enforceable.
6.7 FURTHER ASSURANCES. Each party hereto shall execute and deliver
such additional documents as may be necessary or desirable to consummate the
transactions contemplated by this Agreement.
6.8 LEGAL EXPENSES. In the event any legal proceeding is commenced by
any party to this Agreement to enforce or recover damages for any breach of the
provisions hereof, the prevailing party in such legal proceeding shall be
entitled to recover in such legal proceeding from the losing party such
prevailing party's costs and expenses incurred in connection with such legal
proceedings, including reasonable attorney's fees.
6.9 AMENDMENT AND MODIFICATION. This Agreement may be amended, modified
and supplemented only by a written document executed by Twister and Stockholder.
6.10 SPECIFIC PERFORMANCE. The parties agree that in the event of a
breach of any provision of this Agreement, irreparable damage would occur, the
aggrieved party would be without an adequate remedy at law and damages would be
difficult to determine. The parties therefore agree that in the event of a
breach of any provision of this Agreement, the aggrieved party may elect to
institute and prosecute proceedings in any court of competent jurisdiction to
enforce specific performance or to enjoin the continuing breach of such
provision. By seeking or obtaining such relief, the aggrieved party will not be
precluded from seeking or obtaining any other relief to which it may be entitled
at law or in equity.
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IN WITNESS WHEREOF, Twister has caused this Agreement to be executed by
its duly authorized officers and Stockholder has executed this Agreement, each
as of the date set forth above.
TWISTER
By:
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Name:
Title:
Stockholder(s)
Name of Stockholder:
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By:
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Name:
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Title:
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Address:
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Fax No.:
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Name of Stockholder:
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By:
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Name:
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Title:
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Address:
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Fax No.:
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Schedule A to Stockholder Voting Agreement
1. Shares Owned Beneficially by Stockholder:
Name:
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Record Holder: No. of Shares
Beneficial Holder:
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(if different)
Name:
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Record Holder: No. of Shares
Beneficial Holder:
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(if different)
Name:
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Record Holder: No. of Shares
Beneficial Holder:
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(if different)
2. Stockholder's Options to Purchase Shares:
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Name of Option Holder No. of Shares
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Name of Option Holder No. of Shares
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Schedule B to Stockholder Voting Agreement
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