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Exhibit 2
FORM OF COMPANY VOTING AGREEMENT
THIS COMPANY VOTING AGREEMENT (this "Agreement") is made and entered
into as of December 11, 1999, by and between Xxxx.xxx, Inc.., a Delaware
corporation ("Parent") and the undersigned stockholder ("Stockholder") of the
Company.
RECITALS
A. Concurrently with the execution and delivery of this Agreement,
NetMoves Corporation, a Delaware Corporation (the "Company"), Merger Sub (as
defined below) and Parent are entering into an Agreement and Plan of Merger (the
"Merger Agreement") that provides for the merger (the "Merger") of a
wholly-owned subsidiary of Parent ("Merger Sub") with and into the Company.
Pursuant to the Merger, each share of common stock, par value $0.01 per share,
of the Company ("Company Common Stock") shall be converted into the right to
receive Class A common stock, par value $0.01 per share, of Parent, upon the
terms and subject to the conditions set forth in the Merger Agreement;
B. Stockholder is the beneficial owner (as defined in Rule 13d-3 under
the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of such
number of shares of Company Common Stock and shares subject to outstanding
options and warrants as is indicated on the signature page of this Agreement;
and
C. In consideration of the execution of the Merger Agreement by Parent,
Stockholder (in his or her capacity as such) agrees to vote the Shares (as
defined below) and other such shares of capital stock of the Company over which
Stockholder has voting power so as to facilitate consummation of the Merger.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein and in the Merger Agreement and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
1. CERTAIN DEFINITIONS.
Capitalized terms used but not otherwise defined herein shall have the
meanings ascribed to them in the Merger Agreement. For purposes of this
Agreement:
1.1 "Expiration Date" shall mean the earlier to occur of (i)
such date and time as the Merger Agreement shall have been validly terminated
pursuant to its terms and (ii) the Effective Time.
1.2 "Person" shall mean any (i) individual, (ii) corporation,
limited liability company, partnership or other entity or (iii) governmental
authority.
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1.3 "Shares" shall mean: (i) all securities of the Company
(including all shares of Company Common Stock and all options, warrants and
other rights to acquire shares of Company Common Stock) owned by Stockholder as
of the date of this Agreement; and (ii) all additional securities of the Company
(including all additional shares of Company Common Stock and all additional
options, warrants and other rights to acquire shares of Company Common Stock) of
which Stockholder acquires ownership during the period from the date of this
Agreement through the Expiration Date.
1.4 "Transfer", when used as a verb, shall mean to sell, pledge,
assign, encumber, dispose of or otherwise transfer (including by merger,
testamentary disposition, interspousal disposition pursuant to a domestic
relations proceeding or otherwise by operation of law), or, when used as a noun,
shall mean a sale, pledge, assignment, encumbrance, disposition, or other
transfer (including a merger, testamentary disposition, interspousal disposition
pursuant to a domestic relations proceeding or otherwise or other transfer by
operation of law).
2. RESTRICTIONS ON TRANSFER.
Stockholder agrees that, during the period from the date of this
Agreement through the Expiration Date, Stockholder shall not, either directly or
indirectly, Transfer any shares of or options to purchase Company Common Stock
or any other securities or rights convertible into or exchangeable for shares of
Company Common Stock, owned either directly or indirectly, by Stockholder or
with respect to which Stockholder has the power of disposition, whether now or
hereafter acquired, without the prior written consent of Parent; provided that
the foregoing requirements shall not prohibit any Transfer to any Person where
as a precondition to such Transfer the transferee: (i) executes a counterpart of
this Agreement and an Irrevocable Proxy in the form attached hereto as Exhibit A
(with such modifications as Parent may reasonably request); and (ii) agrees in
writing to hold such Shares (or interest in such Shares) subject to all of the
terms and provisions of this Agreement. Stockholder agrees that, during the
period from the date of this Agreement through the Expiration Date, Stockholder
shall not (a) deposit (or permit the deposit of) any Shares in a voting trust or
grant any proxy or enter into any voting agreement or similar agreement in
contravention of the obligations of Stockholder under this Agreement with
respect to any of the Shares or (b) take any action that would make any
representation or warranty of Stockholder contained herein untrue or incorrect
or have the effect of preventing or disabling Stockholder from performing
Stockholder's obligations under this Agreement.
3. AGREEMENT TO VOTE SHARES.
(a) Stockholder hereby agrees to appear, or cause the holder of record
on any applicable record date to appear for the purpose of obtaining a quorum at
any annual or special meeting of stockholders of the Company and at any
adjournment thereof at which matters relating to the Merger, the Merger
Agreement or any transaction contemplated thereby are considered. At every
meeting of the stockholders of the Company, and at
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every adjournment thereof, and on every action or approval by written consent of
the stockholders of the Company, Stockholder (in his or her capacity as such)
shall vote, or cause the Shares to be voted, in favor of approval and adoption
of the Merger Agreement and the approval of the Merger and in favor of each
other action contemplated by the Merger Agreement and any action required in
furtherance hereof or thereof.
(b) At every meeting of the stockholders of the Company, and at
every adjournment thereof and on every action or approval by written consent
of the stockholders of the Company, Stockholder shall vote, or cause the
Shares to be voted, against (i) any Acquisition Proposal (in his capacity as
such), (ii) any dissolution, liquidation or winding up of or by the Company
or (iii) any amendment of the Certificate of Incorporation or by-laws of the
Company or other proposal or transaction involving the Company, which
amendment or other proposal or transaction would in any manner impede,
frustrate, prevent or nullify any material provision of the Merger Agreement,
the Merger or any other transaction contemplated by the Merger Agreement or
change in any manner the voting rights of any class of the Company's capital
stock. Stockholder shall not commit or agree to take any action inconsistent
with the foregoing.
4. IRREVOCABLE PROXY.
Stockholder is hereby delivering to Parent an irrevocable proxy in the
form attached hereto as Exhibit A (the "Irrevocable Proxy") with respect to each
meeting of stockholders of the Company and action by stockholders of the Company
by written consent in lieu of a meeting, such Irrevocable Proxy to cover the
total number of Shares in respect of which Stockholder is entitled to vote. Upon
the execution of this Agreement by Stockholder, Stockholder hereby revokes any
and all prior proxies given thereby with respect to the Shares and agrees not to
grant any subsequent proxies with respect to the Shares until after the
Expiration Date.
5. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER.
5.1 Stockholder (i) is the beneficial owner of the shares of
Company Common Stock and the options and warrants to purchase shares of Common
Stock of the Company indicated on the signature page of this Agreement, free and
clear of any liens, claims, options, rights of first refusal, co-sale rights,
charges or other encumbrances; (ii) does not beneficially own any securities of
the Company other than the shares of Company Common Stock and options and
warrants and to purchase shares of Company Common Stock indicated on the
signature page of this Agreement; and (iii) has full power and authority to
make, enter into and carry out the terms of this Agreement and the Irrevocable
Proxy.
5.2 This Agreement and the Irrevocable Proxy have been duly and
validly executed and delivered by Stockholder and constitute the valid and
binding obligations of Stockholder, enforceable against Stockholder in
accordance with their respective terms. The execution and delivery of this
Agreement and the Irrevocable Proxy by Stockholder
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do not, and the performance of Stockholder's obligations hereunder will not, (a)
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 right
to terminate, amend, accelerate or cancel any right or obligation under, or
result in the creation of any lien or encumbrance on any Shares pursuant to, any
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligations to which Stockholder is a party or
by which Stockholder or the Shares are or will be bound or affected or (b)
violate any order, writ, injunction, decree, judgment, statute, rule or
regulation applicable to Stockholder or any of Stockholder's properties or
assets. No consent, approval, order or authorization of, or registration,
declaration or filing with, or notice to, any state or federal public body or
authority is required by or with respect to Stockholder in connection with the
execution and delivery of this Agreement and the Irrevocable Proxy by
Stockholder or the consummation by Stockholder of any of the transactions
contemplated hereby or thereby.
6. ADDITIONAL DOCUMENTS.
Stockholder (in his or her capacity as such) hereby covenants and
agrees to execute and deliver any additional documents necessary or desirable,
in the reasonable opinion of Parent, to carry out the intent of this Agreement.
7. LEGENDING OF SHARES.
Stockholder agrees that it shall forthwith surrender all certificates
representing the Shares so that they shall bear a conspicuous legend stating
that they are subject to this Agreement (and the restrictions on transfer
provided for herein) and to an Irrevocable Proxy. Subject to the terms of
Section 2 hereof, Stockholder agrees that it shall not Transfer the Shares
without first having the aforementioned legend affixed to the certificates
representing the Shares.
8. TERMINATION.
This Agreement shall terminate and shall have no further force or
effect as of the Expiration Date.
9. NO SOLICITATION.
Stockholder agrees that, during the period from the date of this
Agreement through the Expiration Date, Stockholder will not, and will not permit
any of its officers, directors, affiliates or employees or any investment
banker, attorney or other advisor or representative retained by it to, directly
or indirectly, (i) solicit, initiate, encourage or induce the making, submission
or announcement of any Acquisition Proposal (as defined in the Merger
Agreement), (ii) participate in any discussions or negotiations regarding, or
furnish to any person any information with respect to, or take any other action
to facilitate any inquiries or the making of any proposal that constitutes or
may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in
discussions with any person
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with respect to any Acquisition Proposal, (iv) authorize, approve or recommend
any Acquisition Proposal or (v) enter into any letter of intent or similar
document or any contract, agreement or commitment providing for any Acquisition
Transaction (as defined in the Merger Agreement) or accepting any Acquisition
Proposal. Stockholder as promptly as practicable shall advise Parent orally and
in writing of any request received by Stockholder for information which
Stockholder reasonably believes could lead to an Acquisition Proposal or of any
Acquisition Proposal, or any inquiry received by Stockholder with respect to or
which Stockholder reasonably believes could lead to any Acquisition Proposal,
the terms and conditions of such request, Acquisition Proposal or inquiry, and
the identity of the person or group making any such request, Acquisition
Proposal or inquiry.
10. CONFIDENTIALITY.
Stockholder agrees (i) to hold any information regarding this Agreement
and the Merger in strict confidence and (ii) not to divulge any such information
to any third person, except to the extent any of the same is hereafter publicly
disclosed by Parent.
11. MISCELLANEOUS.
11.1 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, then 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.
11.2 BINDING EFFECT AND ASSIGNMENT.
This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns, but,
except as otherwise specifically provided herein, neither this Agreement nor any
of the rights, interests or obligations of the parties hereto may be assigned by
any of the parties without prior written consent of the others. Nothing
contained in this Agreement, express or implied, is intended to confer upon any
person other than the parties hereto and their respective successors and
permitted assigns any rights or remedies of any nature whatsoever by reason of
this Agreement.
11.3 AMENDMENTS AND MODIFICATION.
This Agreement may be amended by the parties hereto and the
terms and conditions hereof may be waived only by an instrument in writing
signed on behalf of each of the parties hereto or, in the case of a waiver, by
an instrument signed on behalf of the party waiving compliance.
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11.4 SPECIFIC PERFORMANCE.
The parties hereto acknowledge that Parent shall be immediately
and irreparably harmed and injured if for any reason any of the provisions of
this Agreement are not performed in accordance with their specific terms or are
otherwise breached by any of the other parties hereto. Therefore, it is agreed
that, in addition to any other remedies that may be available to Parent upon any
such violation, Parent shall have the right to enforce such covenants and
agreements by specific performance, injunctive relief or by any other means
available to Parent at law or in equity. If Parent brings an action in equity to
enforce the provisions of this Agreement, neither of the other parties hereto
will allege, and each hereby waives the defense, that there is an adequate
remedy at law.
11.5 NOTICES.
All notices and other communications pursuant to this Agreement
shall be in writing and deemed to be sufficient if contained in a written
instrument and shall be deemed given if delivered personally, telecopied, sent
by nationally-recognized overnight courier or mailed by registered or certified
mail (return receipt requested), postage prepaid, to the parties at the
following address (or at such other address for a party as shall be specified by
like notice):
if to Parent, to:
Xxxx.xxx, Inc.
00 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
Telephone No.: (000) 000-0000 (x205)
Telecopy No.: (000) 000-0000
with a copy at the same address to:
Xxxxx X. Xxxxxxxx, Esq.
Telephone No.: (000) 000-0000 (x382)
Telecopy No.: (000) 000-0000
and with a copy to:
Winthrop, Stimson, Xxxxxx & Xxxxxxx
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
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Attn: Xxxxxx X. Xxxxxxx, Xx., Esq.
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
if to Stockholder, to the address for notice set forth on the
signature page hereof.
11.6 GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF DELAWARE, REGARDLESS OF THE LAWS THAT MIGHT
OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
11.7 ENTIRE AGREEMENT.
This Agreement and the Irrevocable Proxy, together with the
Company Affiliate Letter, in the forms attached as Exhibit D to the Merger
Agreement, contain the entire understanding of the parties in respect of the
subject matter hereof, and supersede all prior negotiations and
understandings between the parties with respect to such subject matter.
11.8 DESCRIPTIVE HEADINGS.
The section headings are for convenience only and shall not
affect the construction or interpretation of this Agreement.
11.9 COUNTERPARTS.
This Agreement may be executed in counterparts, each of which
will be deemed to be an original, but all of which, taken together, will
constitute one and the same instrument.
11.10 STOCKHOLDER CAPACITY
Notwithstanding anything herein to the contrary, no person
executing this Agreement who is, or becomes during the term hereof, a director
of the Company makes any agreement or understanding herein in his or her
capacity as such director, and the agreements set forth herein shall in no way
restrict any director in the exercise of his or her fiduciary duties as a
director of the Company. Each Stockholder has executed this Agreement solely in
his or her capacity as the record or beneficial holder of such Stockholder's
Shares or as the trustee of a trust whose beneficiaries are the beneficial
owners of such Stockholder's Shares.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
XXXX.XXX, INC.
By:
------------------------------------
Name:
Title:
STOCKHOLDER
By:
------------------------------------
Name:
Title:
---------------------------------------
---------------------------------------
Print Address
---------------------------------------
Telephone
---------------------------------------
Facsimile No.
Shares beneficially owned:
________ shares of Company Common Stock
________ shares of Company Common Stock
issuable upon exercise of outstanding
options or warrants
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EXHIBIT A
IRREVOCABLE PROXY
The undersigned stockholder of NetMoves Corporation, a Delaware
corporation (the "Company"), hereby irrevocably appoints the members of the
Board of Directors of Xxxx.xxx, Inc., a Delaware corporation ("Parent"), and
each of them, or any other designee of Parent, as the sole and exclusive
attorneys-in-fact and proxies of the undersigned, with full power of
substitution and resubstitution, to vote and exercise all voting and related
rights (to the full extent that the undersigned is entitled to do so) with
respect to all of the shares of capital stock of the Company that now are or
hereafter may be beneficially owned by the undersigned, and any and all other
shares or securities of the Company issued or issuable in respect thereof on or
after the date hereof (collectively, the "Shares") in accordance with the terms
of this Irrevocable Proxy. The Shares beneficially owned by the undersigned
Stockholder of the Company as of the date of this Irrevocable Proxy are listed
on the signature page of this Irrevocable Proxy. Upon the undersigned's
execution of this Irrevocable Proxy, any and all prior proxies given by the
undersigned with respect to any Shares are hereby revoked and the undersigned
agrees not to grant any subsequent proxies with respect to the Shares until
after the Expiration Date (as defined below).
This proxy is irrevocable, is coupled with an interest and is granted
pursuant to that certain Company Voting Agreement of even date by and between
Parent and the undersigned stockholder (the "Voting Agreement"), and is granted
in consideration of and as a condition to Parent entering into that certain
Agreement and Plan of Merger (the "Merger Agreement"), among Parent, Mast
Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of
Parent ("Merger Sub"), and the Company. The Merger Agreement provides for the
merger of Merger Sub with and into the Company in accordance with its terms (the
"Merger"). As used herein, the term "Expiration Date" shall mean the earlier to
occur of (i) such date and time as the Merger Agreement shall have been validly
terminated pursuant to the terms thereof and (ii) such date and time as the
Merger shall become effective in accordance with the terms and provisions of the
Merger Agreement.
The attorneys-in-fact and proxies named above, and each of them, are
hereby authorized and empowered by the undersigned, at any time prior to the
Expiration Date, to act as the undersigned's attorney-in-fact and Irrevocable
Proxy to demand that the Secretary of the Company call a special meeting of
stockholders of the Company for the purpose of considering any action related to
the Merger Agreement and to vote the Shares, and to exercise all voting, consent
and similar rights of the undersigned with respect to the Shares (including,
without limitation, the power to execute and deliver written consents) at every
annual, special or adjourned meeting of stockholders of the Company and in every
written consent in lieu of such meeting (a) in favor of the approval and
adoption of the Merger Agreement and the approval of the Merger and in favor of
each other action contemplated by the Merger Agreement and any action required
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furtherance hereof or thereof and (b) against (i) any Acquisition Proposal
(as defined in the Merger Agreement), (ii) any dissolution, liquidation or
winding up of or by the Company, (iii) any amendment of the Certificate of
Incorporation or by-laws of the Company or other proposal or transaction
involving the Company, which amendment or other proposal or transaction would
in any manner impede, frustrate, prevent or nullify any material provision of
the Merger Agreement, the Merger or any other transaction contemplated by the
Merger Agreement or change in any manner the voting rights of any class of
the Company's capital stock.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
Dated: December 11, 1999
By:
-------------------------------------------------
Name:
Title:
Shares beneficially owned:
________ shares of the Company Common Stock
________ shares of the Company Common Stock
issuable upon exercise of outstanding options or
warrants
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