This VOTING
AGREEMENT (this “ Agreement ”) is made and
entered into as of June 11, 2009 between Steel Holdings, Inc.,
a Delaware corporation (“ Parent ”), and Steel
Merger Sub, Inc., a Delaware corporation and wholly-owned
subsidiary of Parent (“ Merger Sub ”), on the
one hand, and the undersigned stockholder (“
Stockholder ”) of SoftBrands, Inc., a Delaware
corporation (the “ Company ”), on the other
hand. Capitalized terms used and not otherwise defined herein shall
have the respective meanings set forth in the Merger Agreement
described below.
WHEREAS, pursuant
to an Agreement and Plan of Merger, dated as of the date hereof, by
and among Parent, Merger Sub, and the Company (the “
Merger Agreement” ), Parent has agreed to acquire the
outstanding securities of the Company pursuant to a statutory
merger of Merger Sub with and into the Company in which the
outstanding shares of capital stock of the Company will be
converted into the right to receive the Consideration;
WHEREAS, as a
condition to the willingness of Parent and Merger Sub to enter into
the Merger Agreement and as an inducement and in consideration
therefor, Stockholder has agreed to enter into this Agreement;
and
WHEREAS,
Stockholder is the record or beneficial owner (within the meaning
of Rule 13d-3 of the Exchange Act) of that number of shares of
capital stock of the Company set forth on the signature page of
this Agreement (the “ Shares ”) (such Shares,
together with any New Shares (as defined in Section 1.2
hereof), being referred to herein as the “ Subject
Shares ”).
NOW, THEREFORE, in
consideration of the foregoing and the mutual covenants and
agreements herein contained, and intending to be legally bound
hereby, the parties hereby agree as follows:
1.
Agreement to Retain Subject Shares .
1.1. Prior to the
Expiration Date (as defined below), Stockholder shall not:
(a) transfer, assign, sell, gift-over, pledge or otherwise
dispose of, or consent to any of the foregoing, any or all of the
Subject Shares or any right or interest therein (“
Transfer ”); provided , however , such
restrictions shall not be applicable to (i) a gift of the
Subject Shares made to Stockholder’s spouse or issue,
including adopted children, or to a trust for the exclusive benefit
of Stockholder or Stockholder’s spouse or issue, provided
such transferee agrees to be bound by the terms of this Agreement
or (ii) a transfer of title to the Subject Shares effected
pursuant to Stockholder’s will or the laws of intestate
succession; (b) enter into any contract, option or other
agreement, arrangement or understanding with respect to any
Transfer; (c) grant any proxy, power-of-attorney or other
authorization or consent with respect to any of the Subject Shares
(other than the proxy contemplated in Section 3
hereof); or (d) deposit any of the Subject Shares into a
voting trust, or enter into a voting agreement or arrangement with
respect to any of the Subject Shares. As used herein, the term
“ Expiration Date ” shall mean the earlier to
occur of (x) the date upon which the Effective Time occurs or
(y) the date upon which the Merger Agreement is terminated in
accordance with the terms thereof.
1
1.2. “
New Shares ” means:
(a) any
shares of capital stock or voting securities of the Company that
Stockholder purchases or with respect to which Stockholder
otherwise acquires beneficial ownership (whether through the
exercise of any options, warrants or other rights to purchase
Company Capital Stock or otherwise) after the date of this
Agreement and prior to the Expiration Date; and
(b) any
shares of capital stock or voting securities of the Company that
Stockholder becomes the beneficial owner of as a result of any
change in Company Capital Stock by reason of a stock dividend,
stock split, split-up, recapitalization, reorganization, business
combination, consolidation, exchange of shares, or any similar
transaction or other change in the capital structure of the Company
affecting Company Capital Stock.
2.
Agreement to Vote Subject Shares and Take Certain Other
Action .
2.1. Prior to the
Expiration Date, at every meeting of the stockholders of the
Company, however called, at which any of the following matters is
considered or voted upon, and at every adjournment or postponement
thereof, and on every action or approval by written consent of the
stockholders of the Company with respect to any of the following
matters, Stockholder shall vote or give written consent or, using
Stockholder’s best efforts, cause the holder of record to
vote or give written consent with respect to the Subject
Shares:
(a) in
favor of adoption of the Merger Agreement and the transactions
contemplated thereby;
(b) against
approval of any proposal made in opposition to or competition with
consummation of the Merger and the Merger Agreement, including any
Acquisition Proposal;
(c) against
any Acquisition Transaction with any party other than Parent or an
Affiliate of Parent as contemplated by the Merger
Agreement;
(d) against
any other proposal that is intended to, or is reasonably likely to,
result in the conditions of Parent’s or Merger Sub’s
obligations under the Merger Agreement not being
fulfilled;
(e) against
any amendment of the Company’s certificate of incorporation
or by-laws that is not requested or expressly approved by Parent;
and
(f) against
any dissolution, liquidation or winding up of the
Company.
2.2. Prior to the
Expiration Date, Stockholder, as the holder of voting stock of the
Company, shall be present, in person or by the proxy contemplated
in Section 3 hereof, or, using Stockholder’s best
efforts attempt to cause the holder of record to be present, in
person or by the proxy contemplated in Section 3
hereof, at all meetings of stockholders of the Company at which any
of the matters referred to in Section 2.1 hereof is to
be voted upon so that all Subject Shares are counted for the
purposes of determining the presence of a quorum at such
meetings.
2.3. Between the
date of this Agreement and the Expiration Date, Stockholder will
not, and will not permit any entity under Stockholder’s
control to, (a) solicit proxies or become a
“participant” in a “solicitation” (as such
terms are defined in Rule 14A under the Exchange Act) with
respect to an Opposing Proposal (as defined below),
(b) initiate a stockholders’ vote with respect to an
Opposing Proposal or (c) become a member of a
“group” (as such term is used in Section 13(d) of the
Exchange Act) with respect to any voting securities of the Company
with respect to an Opposing Proposal other than, in the case of the
preceding clauses (a) and (c), any such action that is made in
opposition to an Opposing Proposal. For purposes of this Agreement,
the term “Opposing Proposal” means any of the actions
or proposals described in clauses (b) through (f) of
Section 2.1 of this Agreement, along with any proposal
or action which would, or could reasonably be expected to, impede,
frustrate, prevent, prohibit or discourage any of the transactions
contemplated by the Merger Agreement.
2.4. Stockholder
shall use Stockholder’s commercially reasonable efforts to
take, or cause to be taken, all actions, and to do, or cause to be
done, and to assist and cooperate with the other parties in doing,
all things necessary, proper or advisable to consummate and make
effective, in the most expeditious manner practicable, the Merger
and the other transactions contemplated by the Merger Agreement, in
each case at the Company’s or Parent’s written request
and expense.
3. Grant
of Irrevocable Proxy Coupled with an Interest .
3.1. Solely in the
event of a failure by Stockholder to act in accordance with
Stockholder’s obligations as to voting or executing a written
consent pursuant to Section 2.1 of this Agreement,
Stockholder hereby revokes any and all other proxies or powers of
attorney in respect of any Subject Shares and agrees that during
the period commencing on the date hereof and for so long as this
Agreement has not been terminated by its terms, Stockholder hereby
irrevocably appoints Parent, Merger Sub or any individual
designated by Parent or Merger Sub as Stockholder’s agent,
attorney-in-fact and proxy (with full power of substitution), for
and in the name, place and stead of Stockholder, to vote (or cause
to be
|
