VOTING AGREEMENT
VOTING AGREEMENT, dated as of June 24, 2006 (the "Agreement"), by and
among Telmar Network Technology, Inc., a Delaware corporation ("Parent"), Telmar
Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of
Parent ("Merger Sub"), and Xxxxx Xxxxxx (the "Stockholder"), a stockholder of
17,500 shares of Xxxxxx Communications, Inc. (the "Company").
WITNESSETH:
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, Merger Sub and the Company are entering into an Agreement and Plan of
Merger, dated as of the date hereof (as such agreement may hereafter be amended
from time to time, the "Merger Agreement"), which provides for, upon the terms
and subject to the conditions set forth therein, the merger of Merger Sub with
and into the Company (the "Merger");
WHEREAS, as of the date hereof, the Stockholder owns beneficially the
number of shares of common stock, par value $0.001 per share, of the Company
(the "Company Common Stock") set forth above (all such shares so owned and which
may hereafter be acquired by the Stockholder prior to the termination of this
Agreement, whether upon the exercise of options, conversion of convertible
securities, exercise of warrants or by means of purchase, dividend, distribution
or otherwise, being referred to herein as the Stockholder's "Shares");
WHEREAS, approval of the Merger Agreement by the Company's
stockholders is required in order to consummate the Merger;
WHEREAS, as a condition to Merger Sub's willingness to enter into the
Merger Agreement, Merger Sub has requested that the Stockholder enter into this
Agreement; and
WHEREAS, in order to induce Merger Sub to enter into the Merger
Agreement, the Stockholder is willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, Parent, Merger Sub and the Stockholder hereby agree as follows:
ARTICLE I.
TRANSFER AND VOTING OF SHARES; AND
OTHER COVENANTS OF THE STOCKHOLDER
SECTION 1.1. Voting of Shares. From the date hereof until the
termination of this Agreement pursuant to Section 4.2 hereof (the "Term"), at
any meeting of the stockholders of the Company, however called and at any
adjournment or postponement thereof, and in any action by consent of the
stockholders of the Company, the Stockholder shall (A) appear at such meeting or
otherwise cause its Shares to be counted as present thereat for purposes of
establishing a quorum and (B) vote (or cause to be voted) its Shares (i) in
favor of the Merger, the Merger Agreement and all the other transactions
contemplated thereby, (ii) against (a) any
Takeover Proposal, (b) any proposal for action or agreement that would result in
a breach of any covenant, representation or warranty or any other obligation or
agreement of the Company under the Merger Agreement or which is reasonably
likely to result in any of the conditions of the Company's obligations under the
Merger Agreement not being fulfilled, (c) any change in the directors of the
Company, (d) any change in the present capitalization of the Company or any
amendment to the Company's Restated Certificate of Incorporation, as amended, or
By-Laws or (e) any other change in the Company's corporate structure or business
or change in any manner of the voting rights of the Company's capital stock, or
any other action, which in the case of each of the matters referred to in this
clause (ii) could reasonably be expected to impede, interfere with, delay,
postpone or materially adversely affect the transactions contemplated by the
Merger Agreement or the likelihood of such transactions being consummated and
(iii) in favor of any other matter necessary for consummation of the
transactions contemplated by the Merger Agreement which is considered at any
such meeting of stockholders or in such consent, and in connection therewith to
execute any documents which are necessary or appropriate in order to effectuate
the foregoing, including the ability for Merger Sub or its nominees to vote such
Shares directly.
SECTION 1.2. No Inconsistent Arrangements. Except as contemplated by
this Agreement, the Stockholder shall not during the Term (i) transfer (which
term shall include, without limitation, any sale, assignment, gift, pledge,
hypothecation or other disposition), or consent to any transfer of, any or all
of the Stockholder's Shares or any interest therein, or create or permit to
exist any lien or other encumbrance on such Shares, (ii) enter into any
contract, option or other agreement or understanding with respect to any
transfer of any or all of such Shares or any interest therein, (iii) grant any
proxy, power-of-attorney or other authorization in or with respect to such
Shares, (iv) deposit such Shares into a voting trust or enter into a voting
agreement or arrangement with respect to such Shares, or (v) take any other
action that would in any way restrict, limit or interfere with the performance
of its obligations hereunder or the transactions contemplated hereby or by the
Merger Agreement.
SECTION 1.3. Proxy; Reliance. The Stockholder hereby revokes any and
all prior proxies or powers of attorney in respect of any of the Stockholder's
Shares and constitutes and appoints Merger Sub and Parent, or any nominee of
Merger Sub and Parent, with full power of substitution and resubstitution, at
any time during the Term, as its true and lawful attorney and proxy (its
"Proxy"), for and in its name, place and stead, to demand that the Secretary of
the Company call a special meeting of the stockholders of the Company for the
purpose of considering any matter referred to in Section 1.1 and to vote each of
such Shares as its Proxy, at every annual, special, adjourned or postponed
meeting of the stockholders of the Company, including the right to sign its name
(as stockholder) to any consent, certificate or other document relating to the
Company that the General Corporation Law of the State of Delaware may permit or
require as provided in Section 1.1. The Stockholder understands and acknowledges
that Merger Sub has entered into the Merger Agreement in reliance upon the
Stockholder's execution and delivery of this Agreement.
THE FOREGOING PROXY AND POWER OF ATTORNEY ARE IRREVOCABLE AND COUPLED WITH AN
INTEREST THROUGHOUT THE TERM.
SECTION 1.4. Waiver of Appraisal Rights. The Stockholder hereby waives
any rights of appraisal or rights to dissent from the Merger.
SECTION 1.5. Stop Transfer. The Stockholder shall not request that the
Company register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Stockholder's Shares, unless
such transfer is made in compliance with this Agreement.
SECTION 1.6. No Solicitation. During the Term, the Stockholder shall
not, nor shall it permit or authorize any of its stockholders, officers,
directors, employees, affiliates, agents or representatives (collectively, the
"Representatives") to, directly or indirectly, (i) solicit, initiate, encourage,
induce, entertain or facilitate the making, submission or announcement of any
Takeover Proposal or take any action that would reasonably be expected to lead
to an Takeover Proposal; (ii) furnish any information or data to any Person in
connection with or in response to an Takeover Proposal or an inquiry or
indication of interest that would reasonably be expected to lead to an Takeover
Proposal; (iii) participate or engage in discussions or negotiations with any
Person with respect to any Takeover Proposal; (iv) approve, endorse or recommend
any Takeover Proposal; or (v) enter into any letter of intent or similar
document or any contract or agreement contemplating or otherwise relating to any
Acquisition Transaction. Upon execution of this Agreement, the Stockholder
shall, and shall cause its Representatives to, immediately cease and cause to be
terminated any existing activities, discussions or negotiations with any parties
conducted heretofore with respect to any of the foregoing.
Notwithstanding any provision of this Section 1.6 to the contrary, if
any Stockholder or any of its Representatives is a member of the Board of
Directors, such member of the Board of Directors may take actions in such
capacity to the extent permitted by Section 5.3 of the Merger Agreement.
SECTION 1.7. Public Announcements. The Stockholder shall consult with
Parent before issuing, and shall first provide Parent the reasonable opportunity
to review and comment upon, any press release or other public statements with
respect to the existence or terms of this Agreement, the Merger, the Merger
Agreement and the other transactions contemplated thereby, and shall not issue
any such press release or make any such public statement without the prior
written consent of Parent, except to the extent necessary in response to a
judicial or similar investigative inquiry (including a discovery request in a
lawsuit), in which case the Stockholder shall make such disclosure pursuant
thereto only after first providing reasonable notice to Parent and affording
Parent the opportunity to seek to limit, prevent or protect such disclosure.
SECTION 1.8. Legending of Certificates. If requested by Parent, the
Stockholder agrees to submit to the Company contemporaneously with or as
promptly as practicable following execution of this Agreement all certificates
representing its Shares so that the Company may note thereon a legend, in form
and substance reasonably satisfactory to Parent, referring to the Proxy and
other rights granted to Parent by this Agreement.
SECTION 1.9. Additional Shares. The Stockholder hereby agrees, while
this Agreement is in effect, to promptly notify Parent of the number of any new
Shares acquired (whether upon the exercise of options, conversion of convertible
securities, exercise of warrants
or by means of purchase, dividend, distribution or otherwise) by the
Stockholder, if any, after the date hereof.
SECTION 1.10. Disclosure. The Stockholder hereby authorizes Parent and
Merger Sub to publish and disclose in the Proxy Statement (including all
documents and schedules filed with the SEC), its identity and ownership of the
Company Common Stock and the nature of its commitments, arrangements and
understandings under this Agreement.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Stockholder hereby represents and warrants to Parent and Merger
Sub as follows:
SECTION 2.1. Due Authorization, etc. The Stockholder has all requisite
power and authority to execute, deliver and perform this Agreement, to appoint
Merger Sub and Parent as its Proxy and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this Agreement,
the appointment of Merger Sub and Parent as Stockholder's Proxy and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary action on the part of Stockholder. This Agreement has been duly
executed and delivered by or on behalf of the Stockholder and constitutes a
legal, valid and binding obligation of the Stockholder, enforceable against the
Stockholder in accordance with its terms, except as enforcement may be limited
by bankruptcy, insolvency, moratorium or other similar laws and except that the
availability of equitable remedies, including specific performance, is subject
to the discretion of the court before which any proceeding for such remedy may
be brought. There is no beneficiary or holder of a voting trust certificate or
other interest of any trust of which the Stockholder is trustee whose consent is
required for the execution and delivery of this Agreement or the consummation by
the Stockholder of the transactions contemplated hereby.
SECTION 2.2. No Conflicts; Required Filings and Consents.
(a) The execution and delivery of this Agreement by the Stockholder
does not, and the performance of this Agreement by the Stockholder will not, (i)
conflict with or violate any trust agreement or other similar documents relating
to any trust of which the Stockholder is trustee, (ii) conflict with or violate
any law applicable to the Stockholder or by which the Stockholder or any of the
Stockholder's properties is bound or affected or (iii) result in any breach of
or constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
acceleration or cancellation of, or result in the creation of a lien or
encumbrance on any assets of the Stockholder, including, without limitation, the
Stockholder's Shares, pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which the Stockholder is a party or by which the Stockholder or
any of the Stockholder's assets is bound or affected, except, in the case of
clauses (ii) and (iii), for any such breaches, defaults or other occurrences
that would not prevent or delay the performance by the Stockholder of the
Stockholder's obligations under this Agreement.
(b) The execution and delivery of this Agreement by the Stockholder
does not, and the performance of this Agreement by the Stockholder will not,
require any consent, approval, authorization or permit of, or filing with or
notification to, any governmental or regulatory authority (other than any
necessary filing under the Exchange Act), domestic or foreign, except where the
failure to obtain such consents, approvals, authorizations or permits, or to
make such filings or notifications, would not prevent or delay the performance
by the Stockholder of the Stockholder's obligations under this Agreement.
SECTION 2.3. Ownership of Shares. The Stockholder is the record and
beneficial owner of the Shares indicated in the preamble hereto. On the date
hereof, such Shares constitute all of the Shares owned of record or beneficially
by the Stockholder. The Stockholder has, with respect to such Shares, or will
have, with respect to any other Shares of the Stockholder, sole voting power,
sole power of disposition and sole power to agree to all of the matters set
forth in this Agreement with respect to all of such Shares, with no
restrictions, subject to applicable securities laws, on the Stockholder's voting
power or rights of disposition pertaining thereto. The Stockholder has good,
valid and marketable title to such Shares, free and clear of all claims, liens,
encumbrances, mortgages, security interests and charges of any nature whatsoever
("Encumbrances") (other than the Encumbrance created by this Agreement), and
shall not be subject to any preemptive right of any stockholder of the Company.
SECTION 2.4. No Finder's Fees. No broker, investment banker, financial
advisor or other person is entitled to any broker's, finder's, financial
advisor's or other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of the
Stockholder. The Stockholder, on behalf of itself and its affiliates, hereby
acknowledges that it is not entitled to receive any broker's, finder's,
financial advisor's or other similar fee or commission in connection with the
transactions contemplated hereby or by the Merger Agreement.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF
PARENT AND MERGER SUB
Parent and Merger Sub hereby, jointly and severally, represent and
warrant to the Stockholder as follows:
SECTION 3.1. Due Organization, Authorization, etc. Merger Sub and
Parent are duly organized, validly existing and in good standing under the laws
of the State of Delaware. Merger Sub and Parent have all requisite corporate
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby by each of Merger
Sub and Parent have been duly authorized by all necessary corporate action on
the part of Merger Sub and Parent, respectively. This Agreement has been duly
executed and delivered by each of Merger Sub and Parent and constitutes a legal,
valid and binding obligation of each of Merger Sub and Parent, enforceable
against Merger Sub and Parent in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, moratorium or other
similar laws and except that the availability of equitable remedies, including
specific
performance, is subject to the discretion of the court before which any
proceeding for such remedy may be brought.
ARTICLE IV.
MISCELLANEOUS
SECTION 4.1. Definitions. Capitalized terms used but not otherwise
defined herein shall have the meanings ascribed to such terms in the Merger
Agreement. The Stockholder acknowledges that the Stockholder has been provided
with a copy of the Merger Agreement.
SECTION 4.2. Termination. This Agreement shall terminate and be of no
further force and effect (i) by the written mutual consent of the parties
hereto, (ii) automatically and without any required action of the parties hereto
upon the Effective Time or (iii) upon termination of the Merger Agreement in
accordance with its terms. No such termination of this Agreement shall relieve
any party hereto from any liability for any willful breach of this Agreement
prior to termination.
SECTION 4.3. Further Assurance. From time to time, at another party's
request and without consideration, each party hereto shall execute and deliver
such additional documents and take all such further action as may be necessary
or desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
SECTION 4.4. Certain Events. The Stockholder agrees that this
Agreement and the Stockholder's obligations hereunder shall attach to the
Stockholder's Shares and shall be binding upon any person or entity to which
legal or beneficial ownership of such Shares shall pass, whether by operation of
law or otherwise, including, without limitation, the Stockholder's heirs,
guardians, administrators or successors. Notwithstanding any transfer of Shares,
the transferor shall remain liable for the performance of all its obligations
under this Agreement.
SECTION 4.5. No Waiver. The failure of any party hereto to exercise
any right, power or remedy provided under this agreement or otherwise available
in respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, or any custom or practice of the
parties at variance with the terms hereof shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
SECTION 4.6. Specific Performance. The Stockholder acknowledges that
if the Stockholder fails to perform any of its obligations under this Agreement,
immediate and irreparable harm or injury would be caused to Parent and Merger
Sub for which money damages would not be an adequate remedy. In such event, the
Stockholder agrees that each of Parent and Merger Sub shall have the right, in
addition to any other rights it may have, to specific performance of this
Agreement. Accordingly, if Parent or Merger Sub should institute an action or
proceeding seeking specific enforcement of the provisions hereof, the
Stockholder hereby waives the claim or defense that Parent or Merger Sub, as the
case may be, has an adequate
remedy at law and hereby agrees not to assert in any such action or proceeding
the claim or defense that such a remedy at law exists. The Stockholder further
agrees to waive any requirements for the securing or posting of any bond in
connection with obtaining any such equitable relief.
SECTION 4.7. Notice. All notices and other communications given or
made pursuant hereto shall be in writing and shall be deemed to have been duly
given or made (i) as of the date delivered or sent by facsimile if delivered
personally or by facsimile, and (ii) on the third business day after deposit in
the U.S. mail, if mailed by registered or certified mail (postage prepaid,
return receipt requested), 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, except that notices of changes of address shall be effective upon
receipt):
(a) If to Parent or Merger Sub:
c/o Telmar Network Technology, Inc.
00000 Xxxxxx Xxxxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000; and
(b) If to the Stockholder:
Xxxxx Xxxxxx
0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx 00000
Facsimile: ___________
SECTION 4.8. Expenses. Except as otherwise expressly set forth herein,
all fees, costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such fees,
costs and expenses.
SECTION 4.9. Headings. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 4.10. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner adverse to any party. Upon
such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner to the end that transactions
contemplated hereby are fulfilled to the maximum extent possible.
SECTION 4.11. Entire Agreement; No Third-Party Beneficiaries. This
Agreement constitutes the entire agreement and supersedes any and all other
prior agreements and undertakings, both written and oral, among the parties, or
any of them, with respect to the subject matter hereof, and this Agreement is
not intended to confer upon any other person any rights or remedies hereunder.
SECTION 4.12. Assignment. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement shall be assigned, in
whole or in part, by operation of law or otherwise.
SECTION 4.13. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware applicable to
contracts executed in and to be performed entirely within that State.
SECTION 4.14. Amendment. This Agreement may not be amended except by
an instrument in writing signed on behalf of Parent, Merger Sub and the
Stockholder to be affected thereby.
SECTION 4.15. Waiver. Any party hereto may (a) extend the time for the
performance of any of the obligations or other acts of the other parties hereto,
(b) waive any inaccuracies in the representations and warranties of the other
parties hereto contained herein or in any document delivered pursuant hereto and
(c) waive compliance by the other parties hereto with any of their agreements or
conditions contained herein. Any agreement on the part of a party hereto to any
such extension or waiver shall be valid only as against such party and only if
set forth in an instrument in writing signed by such party. The failure of any
party hereto to assert any of its rights under this Agreement or otherwise shall
not constitute a waiver of those rights.
SECTION 4.16. Descriptive Headings; Interpretation. The descriptive
headings herein are inserted for convenience of reference only and are not
intended to be part of or to affect the meaning or interpretation of this
Agreement.
SECTION 4.17. Counterparts. This Agreement may be executed (including
by facsimile transmission) in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which when executed shall be
deemed to be an original but all of which shall constitute one and the same
agreement.
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IN WITNESS WHEREOF, Parent, Merger Sub and the Stockholder have caused
this Agreement to be executed as of the date first written above.
TELMAR NETWORK TECHNOLOGY, INC.
By: /s/ XXXX XXXXXXX
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Name: Xxxx Xxxxxxx
Title: President
TELMAR ACQUISITION CORP.
By: /s/ XXXXXX XXXXX
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Name: Xxxxxx Xxxxx
Title: President
/s/ XXXXX XXXXXX
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Xxxxx Xxxxxx
