EXHIBIT 99.5
[Execution Copy]
VOTING AGREEMENT
VOTING AGREEMENT, dated this 31st day of August, 2001, (this
"Agreement") by and between Cimnet, Inc., a Delaware corporation (the
"Company"), General Electric Company, a New York corporation, acting through its
GE Power Systems business unit (the "Purchaser"), and Xxxx Xxxxxxxxxx (the
"Stockholder").
RECITALS:
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WHEREAS, the Stockholder currently beneficially owns (as such term is
used under the Securities Exchange Act of 1934, as amended, and the rules and
regulations issued thereunder) the shares of common stock, par value $.0001 per
share ("Shares"), of the Company shown on Schedule A.
WHEREAS, as a condition of entering into that certain Preferred Stock
and Warrant Purchase Agreement, made as of the date hereof, by and between the
Company and the Purchaser (the "Purchase Agreement"), the Company has agreed, in
accordance with the terms of the Purchase Agreement, to cause a nominee of the
Purchaser to be included in the slate of directors proposed by the Company for
election at each annual meeting of the Company's stockholders, and the Purchaser
has requested that the Stockholder agree, and the Stockholder has agreed, to
enter into this Agreement to vote the Shares held by the Stockholder in favor of
the election of the Purchaser's nominee as a director of the Company, in each
case as more fully set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, the parties hereby agree as follows:
1. Agreement to Vote Shares. The Stockholder agrees during the term of
this Agreement to vote, or cause to be voted, the Shares shown opposite the
Stockholder's name on Schedule A hereto and any other Shares legally or
beneficially acquired or controlled after the date hereof, in person or by
proxy, in favor of the election of one individual nominated by the Purchaser as
a director of the Company (the "GE Director") at each annual or special meeting
of the Company's stockholders where the election of directors of the Company are
considered, and in any written consent of stockholders executed in lieu of any
such meetings. If the GE Director shall cease to serve as a director of the
Company for any reason, (a) the Purchaser shall have the right to designate a
successor representative, (b) the Company shall promptly cause such successor
representative to be nominated for election as a director to replace the former
GE Director, and (c) the Stockholder shall promptly vote all of the Shares shown
opposite the Stockholder's name on Schedule A hereto and any other Shares
legally or beneficially acquired or controlled after the date hereof and
otherwise use his best efforts to ensure that such successor representative is
duly elected as a director of the Company.
2. No Other Grant of Proxy. The Stockholder will not, directly or
indirectly, grant any proxies or powers of attorney with respect to the Shares
shown opposite the Stockholder's name on Schedule A hereto or legally or
beneficially acquired or controlled after the date hereof to any person in
connection with his vote, consent or other approval that would be adverse to his
obligations under this Agreement.
3. Representations and Warranties of the Stockholders. The Stockholder
hereby represents and warrants to the Purchaser as follows:
(a) The Stockholder beneficially owns, with power to vote, the number
of Shares shown opposite the Stockholder's name on Schedule A free and clear of
any and all claims, liens, charges, encumbrances, covenants, conditions, voting
trust arrangements, options and adverse claims or rights whatsoever, except as
granted hereby or as would have no adverse effect on this Agreement. The
Stockholder does not own of record or beneficially any shares of capital stock
of the Company or other securities representing or convertible into or
exercisable for shares of capital stock of the Company except as set forth in
the preceding sentence;
(b) The Stockholder has the full right, power and authority to enter
into this Agreement; there are no options, warrants, calls, commitments or
agreements of any nature whatsoever pursuant to which any person will have the
right to purchase or otherwise acquire the Shares owned by the Stockholder
except as would, if exercised, require such purchaser or acquiror to abide by
this Agreement and the proxy granted hereby with respect thereto; except as
provided in this Agreement, the Stockholder has not granted or agreed to grant
any proxy or entered into any voting trust, vote pooling or other agreement with
respect to the right to vote or give consents or approval of any kind as to the
Shares which proxy, trust, pooling or other agreement remains in effect as of
the date hereof and is in conflict with this Agreement;
(c) The Stockholder is not a party to, subject to or bound by any
agreement or judgment, order, writ, prohibition, injunction or decree of any
court or other governmental body that would prevent the execution, delivery or
performance of this Agreement by the Stockholder;
(d) This Agreement has been duly and validly executed and delivered by
the Stockholder and constitutes a legal, valid and binding obligation of the
Stockholder, enforceable in accordance with its terms, subject only to (i) the
effect of bankruptcy, insolvency, reorganization or moratorium laws or other
laws generally affecting the enforceability of creditors' rights and (ii)
general equitable principles which may limit the right to obtain specific
performance or other equitable remedies; and
(e) The Stockholder will take all commercially reasonable action
necessary in order that its representations and warranties set forth in this
Agreement shall remain true and correct for the duration of the term of this
Agreement.
4. Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
5. Assignment. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned or delegated by any of the parties
hereto, in whole or in part (whether by operation of law or otherwise), without
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the prior written consent of the other party, and any attempt to make such
assignment without such consent shall be null and void, except that the
Purchaser may transfer its rights hereunder to any affiliate of the Purchaser.
This Agreement shall be binding upon and inure to the benefit of the Purchaser,
the Company and the Stockholder, and each of their permitted successors and any
permitted assigns.
6. No Restriction on Transfer. Nothing contained in this Agreement
shall limit, restrict or prohibit the Stockholder to transfer, sell, pledge,
hypothecate or otherwise encumber the Shares; provided however, that the
Stockholder may not enter into any such transaction to evade his obligations
hereunder.
7. Specific Performance. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any court of the United States
located in the State of New York, or in New York state court, this being in
addition to any other remedy to which they are entitled at law or in equity. If
the Purchaser or its permitted successors or assigns institutes any action or
proceeding to specifically enforce the provisions of Sections 1 or 2 hereof, any
person against whom such action or proceeding is brought hereby waives the claim
or defense therein that such party has an adequate remedy at law, and such
person shall not offer in any such action or proceeding the claim or defense
that such remedy at law exists.
8. Amendments. This Agreement may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written agreement
executed by all of the parties hereto.
9. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if (a) delivered personally, (b) sent by
reputable overnight courier service on the business day after mailing, (c)
telecopied (which is confirmed) (if confirmed during business hours) at the time
of such confirmation or (if confirmed outside of business hours) the next
business day or (d) mailed by registered or certified mail (return receipt
requested) five days after being so mailed, in each case to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
If to the Company: CIMNET, Inc.
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxx X. Xxxxxxxxxx
With copies to: Berlack, Israels & Xxxxxxxx LLP
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxx X. Xxxxxx, Esq.
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If to Purchaser: GE Power Systems
0000 Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxxxx-Losique
Facsimile No.: (000) 000-0000
Attn: Xxxxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
With a copy to: Long Xxxxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxxxxx X. Short, Esq.
Any party may change its address for notice by notice so given.
10. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York (without regard to its
principles of conflicts of law other than Section 5-1401 and 5-1402 of the New
York General Obligations Law).
11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
12. Term. This Agreement shall terminate on the earlier of (i) the
Purchaser's written request that the Stockholder cease voting for a nominee of
the Purchaser, as otherwise required hereunder, (ii) the date on which the
Purchaser beneficially owns less than 375,000 shares of the Company's common
stock (or securities convertible into or exercisable for shares of the Company's
common stock), subject to appropriate adjustment for stock dividends,
subdivisions, combinations, reclassifications and similar events or (iii) August
17, 2006.
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IN WITNESS WHEREOF, this Agreement has be duly executed by the
undersigned, on the day and year first above written.
CIMNET, INC.
By: /s/ XXXX XXXXXXXXXX
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Name: Xxxx Xxxxxxxxxx
Title: Chief Executive Officer
GENERAL ELECTRIC COMPANY, acting
through its GE Power Systems business unit
By: /s/ XXXXXXX XXXXXXX LOSIQUE
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Name: Xxxxxxx Xxxxxxx Losique
Title: Director, GEPS Equity Investments
/s/ XXXX X. XXXXXXXXXX
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Xxxx X. Xxxxxxxxxx
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SCHEDULE A
Stockholder Number of Shares
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Xxxx X. Xxxxxxxxxx 3,260,000
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