Exhibit 3
SUPPLEMENTAL VOTING AGREEMENT
This VOTING AGREEMENT (this "Agreement") is made as of October 7, 2002,
among HarbourVest Partners V - Direct Fund and L.P., HarbourVest Partners VI -
Direct Fund, L.P. (the "HarbourVest Funds"), Abiliti Solutions, Inc., a Missouri
corporation ("Abiliti", and together with the HarbourVest Funds, the
"Stockholders") and Xxxxxxx Capital II, L.P. and Strategic Entrepreneur Fund II,
L.P. (together, the "Xxxxxxx Entities").
X. Xxxxxx Technologies, Inc. ("Xxxxxx"), and the Xxxxxxx Entities
are entering concurrent with the execution of this Agreement into an Investment
Agreement (the "Investment Agreement") pursuant to which the Xxxxxxx Entities
are investing approximately $5 million into securities and warrants issued by
Xxxxxx.
B. The Stockholders and the Xxxxxxx Entities are or, in the case
of Abiliti and the Xxxxxxx Entities, upon the consummation of the transactions
contemplated by the Asset Purchase Agreement, of even date herewith, among
Abiliti, Xxxxxx and Xxxxxx Solutions, Inc. (the "Purchase Agreement") and the
transactions contemplated by the Investment Agreement, of even date herewith,
among Xxxxxx and the Xxxxxxx Entities (the "Investment Agreement"), will be,
holders of the capital stock of Xxxxxx.
B. It is a condition to the execution and delivery of the
Investment Agreement that the Stockholders execute and deliver this Agreement
pursuant to which the Stockholders commit to vote, at the next annual meeting of
the stockholders in favor of the election as Class I Directors of Xxxxxx, of two
individuals to be designated by the Xxxxxxx Entities and Abiliti and the Xxxxxxx
Entities commit to vote at the next annual meeting of stockholders in favor of
the election as Class I Directors of Xxxxxx, of one individual to be designated
by the HarbourVest Entities.
Accordingly, the parties hereto agree as follows:
Section 1. RESTRICTIONS ON TRANSFER. Until the termination of this
Agreement in accordance with its terms, each Stockholder and each Xxxxxxx Entity
agrees not to Transfer (or to agree to Transfer) any shares of the capital stock
of Xxxxxx ("Shares") owned of record or beneficially by such Stockholder or
Xxxxxxx Entity; provided, however, that nothing herein shall prohibit a
Stockholder or any Xxxxxxx Entity from making a Transfer of (or agreeing to
Transfer) any Shares to any Affiliate (and, in the case of Abiliti, any
creditor) of such Stockholder or Xxxxxxx Entity that prior to such Transfer has
assumed such Stockholder's or Xxxxxxx Entity's, as the case may be, obligations
under this Agreement by a written agreement in form and substance reasonably
satisfactory to the HarbourVest Funds and the Xxxxxxx Entities. "Transfer"
means, with respect to any security, the direct or indirect assignment, sale,
transfer, tender, pledge, hypothecation, or the grant, creation or sufferage of
a lien or encumbrance in or upon, or the gift, placement in trust, or the
constructive sale or other disposition of such security (including transfers by
testamentary or intestate succession) or any right, title or interest therein
(including but not limited to any right or power to vote to which the holder
thereof may be entitled, whether such right or power is granted by proxy or
otherwise), or
the record or beneficial ownership thereof, the offer to make such a sale,
transfer, or other disposition of voting rights with respect to the Shares, and
each agreement, arrangement or understanding, whether or not in writing, to
effect any of the foregoing. The term "Affiliate" is used in this Agreement as
defined in Rule 12b-2 under the Securities Exchange Act of 1934.
Section 2. AGREEMENT TO VOTE. Until the termination of this Agreement
in accordance with its terms, and conditioned solely upon the consummation of
the transactions contemplated by the Purchase Agreement and the Investment
Agreement having occurred, each Stockholder and Xxxxxxx Entity hereby
irrevocably and unconditionally agrees to vote or to cause to be voted all of
its Shares, to the extent the Shares carry the right to vote thereon, at the
2003 annual meeting of stockholders of Xxxxxx or any postponement or
continuation thereof, and in connection with any written consent of stockholders
in lieu thereof, in favor of the election of the two persons who will be
designated by the Xxxxxxx Entities and nominated by Xxxxxx as Class I Directors
of Xxxxxx (the "Xxxxxxx Designees") and in favor of the election of the one
person who will be designated by the HarbourVest Funds and nominated by Xxxxxx
as Class I Directors of Xxxxxx (the "HarbourVest Designee"), and against the
election of any nominees other than the Xxxxxxx Designees and the HarbourVest
Designee.
Section 3. GRANTING OF PROXY.
(a) In furtherance of the terms and provisions of this Agreement, each
Stockholder hereby grants, conditioned solely upon the consummation of the
transactions contemplated by the Purchase Agreement and the Investment Agreement
having occurred, an irrevocable proxy (subject to Section 8(b)), coupled with an
interest, to each of the Xxxxxxx Entities, for the sole purpose to vote all of
the Shares beneficially owned by such Stockholder in favor of the election of
the Xxxxxxx Designees in accordance with the provisions of Section 2. Each
Stockholder hereby ratifies and approves of each and every action taken by each
of the Xxxxxxx Entities pursuant to the foregoing proxy. Notwithstanding the
foregoing, if requested by the Xxxxxxx Entities, each Stockholder will execute
and deliver applicable proxy material in furtherance of the provisions of
Section 2 and this Section 3.
(b) In furtherance of the terms and provisions of this Agreement, each
of Abiliti and the Xxxxxxx Entities hereby grants, conditioned solely upon the
consummation of the transactions contemplated by the Purchase Agreement and the
Investment Agreement having occurred, an irrevocable proxy (subject to Section
8(b)), coupled with an interest, to each of the HarbourVest Funds, for the sole
purpose to vote all of the Shares beneficially owned by Abiliti and the Xxxxxxx
Entities in favor of the election of the HarbourVest Designee in accordance with
the provisions of Section 2. Abiliti and each Xxxxxxx Entity hereby ratifies and
approves of each and every action taken by each of the HarbourVest Funds
pursuant to the foregoing proxy. Notwithstanding the foregoing, if requested by
the HarbourVest Funds, each of Abiliti and each Xxxxxxx Entity will execute and
deliver applicable proxy material in furtherance of the provisions of Section 2
and this Section 3.
Section 4. INVALID PROVISIONS. If any provision of this Agreement
shall be invalid or unenforceable under applicable law, such provision shall be
ineffective to the extent of such invalidity or unenforceability only, without
it affecting the remaining provisions of this Agreement.
Section 5. EXECUTED IN COUNTERPARTS. This Agreement may be executed
in counterparts each of which shall be an original with the same effect as if
the signatures hereto and thereto were upon the same instrument.
Section 6. SPECIFIC PERFORMANCE.
(a) The parties hereto agree that the failure for any reason of a
Stockholder to perform any of his or its agreements or obligations under this
Agreement would cause irreparable harm or injury to the Xxxxxxx Entities with
respect to which money damages would not be an adequate remedy. Accordingly,
each Stockholder agrees that, in seeking to enforce this Agreement against such
Stockholder, the Xxxxxxx Entities shall be entitled to specific performance and
injunctive and other equitable relief in addition to any other remedy available
at law, equity or otherwise.
(b) The parties hereto agree that the failure for any reason of either
Abiliti or any Xxxxxxx Entity to perform any of his or its agreements or
obligations under this Agreement would cause irreparable harm or injury to the
HarbourVest Funds with respect to which money damages would not be an adequate
remedy. Accordingly, each of Abiliti and each Xxxxxxx Entity agrees that, in
seeking to enforce this Agreement against such person or entity, the HarbourVest
Funds shall be entitled to specific performance and injunctive and other
equitable relief in addition to any other remedy available at law, equity or
otherwise.
Section 7. GOVERNING LAW; SUBMISSION TO JURISDICTION. THE AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
DOMESTIC LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO ANY CHOICE OF
LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF DELAWARE OR
ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY
JURISDICTION OTHER THAN THE STATE OF DELAWARE. EACH OF THE PARTIES HERETO
IRREVOCABLY AGREES THAT ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT HEREOF
BROUGHT BY ANY OTHER PARTY HERETO OR ITS SUCCESSORS OR ASSIGNS SHALL BE BROUGHT
AND DETERMINED IN THE STATE AND FEDERAL COURTS OF THE STATE OF MASSACHUSETTS,
AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS WITH REGARD TO ANY
SUCH ACTION OR PROCEEDING FOR ITSELF AND IN RESPECT TO ITS PROPERTY, GENERALLY
AND UNCONDITIONALLY, TO THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT,
BY WAY OF MOTION, AS A DEFENSE, COUNTERCLAIM OR OTHERWISE, IN ANY ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT, ANY CLAIM (A) THAT IT IS NOT
PERSONALLY SUBJECT TO THE JURISDICTION OF THE AFORESAID COURTS FOR ANY REASON,
(B) THAT IT OR ITS PROPERTY IS EXEMPT OR IMMUNE FROM JURISDICTION OF ANY SUCH
COURT OR FROM ANY LEGAL PROCESS COMMENCED IN SUCH COURTS (WHETHER THROUGH
SERVICE OF JUDGMENT,
EXECUTION OF JUDGMENT, OR OTHERWISE), AND (C) TO THE FULLEST EXTENT PERMITTED BY
THE APPLICABLE LAW, THAT (I) THE SUIT, ACTION OR PROCEEDING IN SUCH COURTS IS
BROUGHT IN AN INCONVENIENT FORUM, (II) THE VENUE OF SUCH SUIT, ACTION OR
PROCEEDING IS IMPROPER AND (III) THIS AGREEMENT, OR THE SUBJECT MATTER HEREOF,
MAY NOT BE ENFORCED IN OR BY SUCH COURTS.
Section 8. AMENDMENTS; TERMINATION.
(a) This Agreement may not be modified, amended, altered or
supplemented, except upon the execution and delivery of a written agreement
executed by all parties hereto.
(b) Except for provisions of this Agreement that by their
terms survive the termination hereof, the provisions of this Agreement shall
terminate upon the earliest to occur of (i) the final adjournment of the 2003
annual meeting of the stockholders of Xxxxxx and (ii) the termination of the
Purchase Agreement in accordance with its terms.
Section 9. ADDITIONAL SHARES. If, after the date hereof, any
Stockholder or Xxxxxxx Entity acquires beneficial or record ownership of any
additional shares of capital stock of Xxxxxx (any such shares, "Additional
Shares"), including, without limitation, upon exercise of any option, warrant or
right to acquire shares of capital stock of Xxxxxx or through any stock dividend
or stock split, the provisions of this Agreement applicable to the Shares shall
thereafter be applicable to such Additional Shares as if such Additional Shares
had been Shares as of the date hereof. The provisions of the immediately
preceding sentence shall be effective with respect to Additional Shares without
action by any person or entity immediately upon the acquisition by any
Stockholder of beneficial ownership of such Additional Shares.
Section 10. SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective legal successors (including, in the case of any individual
Stockholder, any Xxxxxxx Entity or any other individual, any executors,
administrators, estates, legal representatives and heirs of such Stockholder,
Xxxxxxx Entity or such individual) and permitted assigns; provided, however,
that, except as otherwise provided in this Agreement, no party may assign,
delegate or otherwise transfer any of its rights or obligations, under this
Agreement, without (a) the consent of the Xxxxxxx Entities, in the case of any
Stockholder, or (b) the consent of the HarbourVest Funds, in the case of the
Xxxxxxx Entities. Without limiting the scope or effect of the restrictions on
Transfer set forth in Section 2, each Stockholder and each Xxxxxxx Entity agrees
that this Agreement and the obligations hereunder shall attach to the 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.
Section 12. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, all of which, when taken together, shall be considered one and
the same agreement and shall become effective when counterparts have been signed
by each party and delivered to the other party. The parties also expressly agree
that this Agreement may be executed by original signatures delivered by
facsimile.
[Remainder of page intentionally left blank; signature pages follow]
In witness whereof, the parties hereto have executed this Agreement as
of the date first written above.
STOCKHOLDERS:
HARBOURVEST PARTNERS V - DIRECT FUND, L.P.
By: HVP V-Direct Associates, L.L.C
Its General Partner
By: HarbourVest Partners, LLC
Its Managing Member
By: /s/ Xxxx Xxxxxxxxxx
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Xxxx Xxxxxxxxxx
Managing Director
HARBOURVEST PARTNERS VI - DIRECT FUND, L.P.
By: HVP VI-Direct Associates, L.L.C
Its Managing Member
By: HarbourVest Partners, LLC
Its Managing Member
By: /s/ Xxxx Xxxxxxxxxx
------------------------------
Xxxx Xxxxxxxxxx
Managing Director
ABILITI SOLUTIONS, INC.
By: /s/ Xxxxxx X. Quick
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Name: Xxxxxx X. Quick
Title: President and Chief
Executive Officer
[Signature page of Xxxxxxx Entities follows]
XXXXXXX ENTITIES:
XXXXXXX CAPITAL II, L.P.
By: Xxxxxxx Brothers, LLC
its General Partner
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxx,
Managing Member
STRATEGIC ENTREPRENEUR FUND II, L.P.
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxx,
General Partner
