VOTING AGREEMENT
EXHIBIT 10.2
THIS VOTING AGREEMENT (this
"Agreement") is made and
entered into as of April 30, 2010, by and between PROVIDENT PIONEER PARTNERS,
L.P., a Delaware limited partnership (the "Stockholder"), and XXXXXX XXXXX (“Xxxxx”).
W I T N E S S E T H:
WHEREAS, concurrently with the
execution of this Agreement, Pioneer Power Solutions, Inc., a Delaware
corporation (the “Parent”) JEI Acquisition
Corp., a Delaware corporation and a wholly-owned subsidiary of Parent ("Merger Sub"), Jefferson
Electric, Inc., a Delaware corporation (the “Company”) and Xxxxx have
entered into an Agreement and Plan of Merger (the "Merger Agreement"), which
provides for, among other things, the merger of Merger Sub with and into the
Company (the "Merger");
and
WHEREAS, pursuant to the
Merger Agreement, all of the issued and outstanding shares of Company Common
Stock (as defined in the Merger Agreement) will be exchanged and converted into
the right to receive shares of Parent Common Stock (as defined in the Merger
Agreement) constituting the Merger Consideration (as defined in the Merger
Agreement), all upon the terms and subject to the conditions set forth in the
Merger Agreement; and
WHEREAS, as of the date of
this Agreement, Stockholder is the beneficial owner (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of the
number of shares of the outstanding common stock of Parent as set forth on the
signature page of this Agreement; and
WHEREAS, the Company and Xxxxx
have entered into an Employment Agreement, dated as of the date hereof (the
“Xxxxx Employment
Agreement”); and
WHEREAS, pursuant to the
Merger Agreement, during the Director Designation Period (as defined in the
Merger Agreement), Parent shall cause Xxxxx to be nominated for election as a
Director of Parent; and
WHEREAS, Stockholder desires
to vote the Stockholder Shares (as defined below) in favor of the election of
Xxxxx as a Director of Parent, subject to the terms and provisions of this
Agreement;
NOW, THEREFORE, the parties
hereto hereby agree as follows:
1. Agreement to Vote
Shares. Until the Expiration Date (as hereinafter defined), at every
annual or special meeting of stockholders of Parent called for purposes of the
election of Directors of Parent, and at every adjournment or postponement
thereof, and on every action or approval by written consent of stockholders of
Parent with respect thereto (each such annual, special, adjourned or postponed
meeting and written consent, each, a "Stockholder Vote"),
Stockholder shall vote and/or cause to be voted, in person or by proxy, all
shares of common stock of Parent as to which Stockholder holds beneficial
ownership at the time of such Stockholder Vote (collectively, the "Stockholder Shares") in favor of the
election of Xxxxx as a Director of Parent.
2.
Expiration Date; No
Successor. As used herein, "Expiration Date" shall mean
the earliest to occur of the following: (i) the termination of the Xxxxx
Employment Agreement for any reason whatsoever (including expiration of the
three (3) year term thereof); (ii) Xxxxx shall beneficially own less than
364,706 shares of Parent Common Stock received as Merger Consideration pursuant
to the Merger Agreement (i.e., 75% of the aggregate shares of Parent Common
Stock received by Xxxxx as Merger Consideration); (iii) the termination, removal
and/or resignation of Xxxxx as a Director of Parent for any reason whatsoever;
or (iv) Xxxxx shall be in material default under the terms and provisions of the
Xxxxx Employment Agreement and/or any other obligation of Xxxxx to Parent and/or
the Company.
Notwithstanding
anything to the contrary herein contained, upon the termination, removal and/or
resignation of Xxxxx as a Director of Parent for any reason whatsoever pursuant
to the Certificate of Incorporation and/or By-laws and/or other documents of
Parent and/or otherwise pursuant to applicable law, then this Agreement shall be
automatically terminated and without further force or effect, and Xxxxx shall
have no right of any kind or nature whatsoever to nominate or designate any
person as a successor Director.
3. No Inconsistent
Agreement. Stockholder hereby covenants and agrees not to
enter into any agreement that would materially restrict or interfere with, or
otherwise circumvent, the performance of Stockholder's obligations under this
Agreement. Nothing contained in this Agreement shall in any manner
whatsoever be deemed to limit or restrict the ability of Stockholder to at any
time sell, transfer or assign in any manner any Stockholder Shares and/or any
other capital stock of Parent held by the Stockholder, including without
limitation, the distribution of any such shares to its
partners. Notwithstanding the foregoing, the terms and provisions of
this Agreement shall remain in full force and effect upon any assignment or
transfer by Stockholder of any Stockholder Shares to any of its Affiliates (as
defined in the Merger Agreement).
4. Representations of
Stockholder. As of the date hereof, Stockholder represents and warrants
to Parent and the Company as follows:
(i)
Stockholder is the beneficial owner of the shares of Parent common stock set
forth on the signature page hereto (the "Currently Owned Shares"), with
full power to vote or direct the voting of the Currently Owned
Shares.
(ii) The Currently Owned Shares
are free and clear of any rights of first refusal, security interests, liens,
pledges, claims, options, charges or other encumbrances of any kind or nature,
in each case that would materially impair the right of the Stockholder to vote
such shares.
(iii) Stockholder has all
necessary power, authority and legal capacity to make, enter into and carry out
the terms of this Agreement and no other proceedings or actions on the part of
Stockholder are necessary to authorize the execution, delivery or performance of
this Agreement.
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5. Termination. The term
of this Agreement shall commence on the date hereof and shall terminate
immediately, and shall have no further force or effect, as of the Expiration
Date.
6. No Survival of
Representations and Warranties. The representations and warranties of the
parties contained herein shall expire, and shall be terminated and extinguished,
for all purposes upon the Expiration Date. Nothing contained herein
shall be deemed to limit or restrict the rights of Xxxxx to assert any claims
based upon any representations or warranties of Stockholder set forth herein,
provided that such claims have been made in a timely manner hereunder prior to
the Expiration Date.
7. Miscellaneous.
(a) Severability. In the
event that any provision of this Agreement, or the application thereof, becomes
or is declared by a court of competent jurisdiction to be illegal, void or
unenforceable, the remainder of this Agreement will continue in full force and
effect and the application of such provision to other persons, entities or
circumstances will be interpreted so as reasonably to effect the intent of the
parties hereto. The parties further agree to replace such illegal, void or
unenforceable provision of this Agreement with a legal, valid and enforceable
provision that will achieve, to the greatest extent possible, the economic,
business and other purposes of such illegal, void or unenforceable
provision.
(b) No Assignment. This
Agreement relating to the voting by Stockholder of the Stockholder Shares is a
personal contract and the right, title and interest of Xxxxx hereunder shall not
be sold, transferred, assigned, pledged or hypothecated by Xxxxx in any manner
whatsoever.
(c) Amendments and
Modification. This Agreement may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written agreement
executed by each of the parties hereto. No waiver by any party hereto
of any condition or of any breach of any provision of this Agreement shall be
effective unless in writing.
(d) Notices. All notices
and other communications hereunder shall be in writing and shall be deemed duly
given (i) on the date of delivery if delivered personally, (ii) on the
date of confirmation of receipt (or, the first business day following such
receipt if the date is not a business day) of transmission by facsimile, or
(iii) on the date of confirmation of receipt (or, the first business day
following such receipt if the date is not a business day) if delivered by a
nationally recognized courier service. All notices hereunder shall be delivered
as set forth below, or pursuant to such other instructions as may be designated
in writing by the party to receive such notice:
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if to the
Stockholder, to:
One
Xxxxxx Plaza
400 Kelby
Street, 0xx Xxxxx
Xxxx Xxx,
Xxx Xxxxxx 00000
with
copies to:
Xxxxxx
Xxxxxxx, Esq.
Shiboleth
LLP
Xxx Xxxx
Xxxxx, Xxxxx 0000
Xxx Xxxx,
XX 00000
if to
Xxxxx, to:
Xx.
Xxxxxx Xxxxx
0000
Xxxxxxxxx Xxxx
Xxxxxxx,
Xxxxxxxxx 00000
Facsimile:
262.377.
Xxxxxx@Xxxxxxxxxxxxxxxxx.xxx
with
copies to:
Xxxx X.
Xxxxxxxx, Esq.
Law
Office of Xxxx X. Xxxxxxxx, S.C.
00000 X.
Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx,
Xxxxxxxxx 00000
Facsimile:
262.787.0606
xxxxxxxxxx@xxx.xxx
(e) Governing Law;
Jurisdiction. This Agreement shall in all respects be governed
by, and construed in accordance with, the applicable laws of the State of
Delaware, U.S.A., without giving effect to principles of conflicts of
law. Each party hereto irrevocably and unconditionally consents to
submit the exclusive jurisdiction of the United States District Court for the
Southern District of New York, or if jurisdiction in such court is lacking, any
court of the State of New York of competent jurisdiction sitting in New York
City, in connection with any action, suit or proceeding arising out of or
relating to this Agreement and the transactions contemplated hereby, and
agrees that service of process may be made in any manner acceptable for use in
such New York courts. Each
party hereby irrevocably and unconditionally waives any objection to the laying
of venue of any action, suit or proceeding arising out of this Agreement and/or
the transactions contemplated hereby, in the above New York courts, and hereby
further irrevocably and unconditionally waives and agrees not to plead or claim
in any such court that any such action, suit or proceeding brought in any such
court has been brought in an inconvenient forum. The parties hereby
expressly waive the right to any jury trial in any action or proceeding
involving this Agreement.
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(f) Entire Agreement.
This Agreement contains 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.
(g) Counterparts.
This Agreement may be executed in one or more counterparts, all of which shall
be considered one and the same agreement and shall become effective when one or
more counterparts have been signed by each of the parties and delivered to the
other parties, it being understood that all parties need not sign the same
counterpart.
(h) No Ownership
Interest. Nothing contained in this Agreement shall be deemed, upon
execution, to vest in any person or entity any direct or indirect ownership or
incidence of ownership of or with respect to the Currently Owned Shares and/or
Stockholder Shares, as applicable, except only to the extent otherwise expressly
provided herein. All rights, ownership and economic benefits of any kind or
nature whatsoever relating to the Currently Owned Shares and/or Stockholder
Shares, as applicable, including any voting rights, shall at all times remain
vested in and belong solely and exclusively to Stockholder for all purposes
whatsoever.
[Remainder
of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the
undersigned have executed this Agreement on the date first above
written.
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STOCKHOLDER:
PROVIDENT
PIONEER PARTNERS, L.P.
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By:
Provident Canada Corp., General Partner
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By:
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/s/ Xxxxxx X. Xxxxxxx | |
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Name:
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Xxxxxx X. Xxxxxxx | ||
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Title:
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President | ||
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Currently Owned
Shares:
Common
Stock: 23,800,000
Parent
Options: 1,000,000
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| /s/ Xxxxxx Xxxxx | |||
| Xxxxxx Xxxxx | |||
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