1
VOTING AGREEMENT, dated as of February 17, 2000, by and among (1) AXESS
CORPORATION, a Delaware corporation (the "Stockholder"), (2) RHEOMETRIC
SCIENTIFIC, INC., a New Jersey corporation ("the Company"), and (3) ANDLINGER
CAPITAL XXVI LLC, a Delaware limited liability company (the "Investor"), as
amended, supplemented or otherwise modified from time to time (this
"Agreement").
W I T N E S S E T H:
WHEREAS, the Stockholder, Rheometric and the Investor have entered into
a Securities Purchase Agreement, dated as of February 17, 2000 (as amended,
supplemented or otherwise modified, the "Securities Purchase Agreement");
WHEREAS, it is contemplated in the Securities Purchase Agreement that
promptly after the Closing (as defined in the Securities Purchase Agreement),
the Company will submit to its stockholders for approval (the "Stockholder
Approval") proposals to (i) increase the authorized number of shares of Common
Stock of the Company to 49,000,000 shares and (ii) authorize the issuance of
1,000,000 shares of Preferred Stock as contemplated in the Securities Purchase
Agreement;
WHEREAS, it is a condition to the Closing that the parties to the
Securities Purchase Agreement enter into a stockholder's voting agreement with
respect to certain matters relating to shares of Common Stock of the Company
owned or to be owned by the Stockholder and the Investor and including the
agreement of the Stockholder and the Investor to vote their respective shares in
favor of the matters submitted for Stockholder Approval.
NOW, THEREFORE, in consideration of the mutual benefits to be derived
and the conditions and promises herein contained, and intending to be legally
bound hereby, the Company, the Stockholder and the Investor hereby adopt and
approve this Agreement and agree as follows:
1. Representations and Warranties. Each of the Stockholder and the
Investor represents and warrants to the other that this Agreement has been duly
executed and delivered by it and constitutes the legal, valid and binding
obligation of it, enforceable in accordance with its terms, except as may be
limited by bankruptcy, reorganization, insolvency and similar laws of general
application relating to or affecting the enforcement of rights of creditors.
2. Right to Vote Shares and Voting of Shares. Each of the Stockholder
and the Investor shall:
(a) vote all of the Shares now or hereafter owned by it in favor of
increasing the authorized number of shares of Common Stock of the Company to
49,000,000 shares (i) at any meeting of the stockholders of the Company
(including any postponements or adjournments thereof) called or held for the
purpose of acting upon and obtaining the authorization and approval of the
stockholders of the Company to increase the authorized number of shares of
Common Stock of the Company to 49,000,000 shares, and/or (ii) by executing
written consents to action taken without a meeting for the purpose of acting
upon and obtaining the authorization
2
and approval of the stockholders of the Company to increase the authorized
number of shares of Common Stock of the Company to 49,000,000 shares; and
(b) to vote all of the Shares now or hereafter owned by it in favor of
authorizing the issuance of the Preferred Stock contemplated in the Securities
Purchase Agreement (i) at any meeting of the stockholders of the Company
(including any postponements or adjournments thereof) called or held for the
purpose of acting upon and obtaining the authorization and approval of the
stockholders of the Company to authorize the issuance of the Preferred Stock
contemplated in the Securities Purchase Agreement, and/or (ii) by executing
written consents to action taken without a meeting for the purpose of acting
upon and obtaining the authorization and approval of the stockholders of the
Company to authorize the issuance of the Preferred Stock contemplated in the
Securities Purchase Agreement.
(c) without limitation to the generality of the preceding clauses (a)
and (b), to vote all of the Shares now or hereafter owned by it, or the
Investor, with all power the undersigned would possess if personally present, in
the discretion of such proxies, for or against matters or proposals submitted to
the stockholders of the Company for their consideration or approval reasonably
incidental to the furtherance of the matters set forth in classes (a) and (b) of
this Section 2.
3. Certain Covenants. Neither the Stockholder nor the Investor shall or
shall agree or contract to, sell, assign, transfer or otherwise dispose of,
grant any option with respect to, pledge or grant any security interest in or
otherwise encumber any of the Shares or any interest therein, or (except as may
be expressly permitted herein) grant to any other person any proxy, power, right
or authorization to vote the Shares or to give any consent, waiver or
ratification in respect of the Shares or otherwise to act with respect thereto
during the term of this Agreement.
4. Miscellaneous.
(a) Shares. For purposes of this Agreement, the term "Shares" shall
include any shares of the capital stock or securities of the Company (including
without limitation any securities into which the shares shall be converted or
exchanged), any securities convertible into or exchangeable for shares of the
capital stock or securities of the Company and any rights or options to
subscribe for or to purchase shares of the capital stock or securities of the
Company, and any of the foregoing of or with respect to any successor of the
Company, to which the Stockholder or the Investor, as the case may be, shall
hereafter be entitled to receive or which they shall receive in any transaction.
(b) Entire Agreement. This Agreement contains the entire Agreement
between the parties hereto with respect to the transactions contemplated by this
Agreement and supersedes all prior arrangements or understandings with respect
thereto.
(c) Descriptive Headings. The descriptive headings of this Agreement
are for convenience only and shall not control or affect the meaning or
construction of any provision of this Agreement.
- 2 -
3
(d) Notices. All notices or other communications which are required or
permitted hereunder shall be in writing and sufficient if delivered in the
manner provided in the Securities Purchase Agreement. Any party may by notice
change the address to which notice or other communications to it are to be
delivered or mailed.
(e) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey (other than the choice of
law principles thereof). Any action, suit or other proceeding initiated by any
party hereto against any other party hereto under or in connection with this
Agreement may be brought in any Federal or state court in the State of New
Jersey, as the party bringing such action, suit or proceeding shall elect,
having jurisdiction over the subject matter thereof. Each of the parties hereto
submit themselves to the jurisdiction of any such court and agree that service
of process on them in any such action, suit or proceeding may be effected by the
means by which notices are to be given to it under this Agreement.
(f) Remedies. The parties hereto acknowledge that the remedy at law for
any breach of the obligations undertaken by the parties hereto is and will be
insufficient and inadequate and that the parties hereto shall be entitled to
equitable relief, in addition to remedies at law. In the event of any action to
enforce the provisions of this Agreement, the parties hereto shall waive the
defense that there is an adequate remedy at law. The parties hereto acknowledge
that the benefits to be obtained by the parties hereto are unique and cannot be
readily obtained on the open market. Without limiting any remedies any party may
otherwise have, in the event any party refuses to perform its obligations under
this Agreement, the other parties shall have, in addition to any other remedy at
law or in equity, the right to specific performance.
(g) Illegalities. In the event that any provision contained in this
Agreement shall be determined to be invalid, illegal or unenforceable in any
respect for any reason, the validity, legality and enforceability of any such
provision in every other respect and the remaining provisions of this Agreement
shall not, at the election of the party for whose benefit the provision exists,
be in any way impaired.
(h) Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
(i) Further Actions. From time to time, as and when requested by
Stockholder or the Investor, the Stockholder, the Investor and the Company shall
execute and deliver, or cause to be executed and delivered, all such documents
and instruments and shall take, or cause to be taken, all such further or other
actions as are reasonably necessary or desirable to carry out the intent and
purposes of this Agreement and to consummate the transactions contemplated
thereby.
(j) Termination. This Agreement shall terminate as of the earlier of
(i) the effectiveness of the corporate action referred to in Section 2, (ii) the
termination of the Securities Purchase Agreement, or (iii) the tenth anniversary
of the date of this Agreement.
- 3 -
4
(k) Amendments and Waivers. Any term or provision of this Agreement may
be waived at any time by the party which is entitled to the benefits thereof,
and any term or provision of this Agreement may be amended or supplemented at
any time by the mutual consent of the Stockholder, the Investor and the Company,
except that any waiver of any term or condition, or any amendment or
supplementation, of this Agreement shall be effective only if in writing.
- 4 -
5
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Agreement as of the 17th day of February, 2000.
AXESS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
RHEOMETRIC SCIENTIFIC, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ANDLINGER CAPITAL XXVI LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Authorized Signatory
