Exhibit 99.P
IRREVOCABLE PROXY
AND
VOTING/LOCK-UP AGREEMENT
THIS IRREVOCABLE PROXY AND VOTING/LOCK-UP AGREEMENT, dated as of June
12, 2001 (this "Agreement"), is entered into by and between eXcelon Corporation,
a Delaware corporation ("Parent"), on the one hand, and the stockholder of
Company (as defined below) whose name is set forth on the signature page hereto,
on the other hand.
W I T N E S S E T H:
WHEREAS, concurrently herewith, Parent, Comet Acquisition Corp., a
wholly owned subsidiary of Parent ("Merger Sub"), and C-bridge Internet
Solutions, Inc. ("Company"), have entered into an Agreement and Plan of Merger,
of even date herewith (as such agreement may hereafter be amended from time to
time, the "Merger Agreement"), pursuant to which Merger Sub will merge with and
into the Company, with the Company as the surviving corporation and a
wholly-owned subsidiary of Parent (the "Merger");
WHEREAS, Stockholder beneficially owns that number of shares of the
common stock, $.001 par value ("Common Stock") of Company set forth opposite
Stockholder's name in Column III of Exhibit A hereto (the "Shares"), and holds
options to purchase that number of shares of Common Stock set forth opposite
Stockholder's name in Column IV of Exhibit A (the "Options"). For purposes of
this Agreement, the term "Shares" shall be deemed to include any shares of
Common Stock beneficially owned by Stockholder, whether such beneficial
ownership now exists or arises at any time hereafter, including, without
limitation, by reason of the exercise of any Option; and
WHEREAS, as an essential inducement and condition to entering into the
Merger Agreement, Parent has requested that Stockholder agree, and Stockholder
has agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. VOTING AGREEMENT. Stockholder hereby consents to the Merger
pursuant to Section 4(g) of that certain Investor Rights Agreement among the
Company, the Stockholder and the other parties named therein (the "Existing
Investor Rights Agreement") dated as of October 7, 1999 and agrees, during the
Term (as defined below), with Parent that, at any meeting of Company's
stockholders, however called, and any adjournment or postponement thereof, or in
connection with any written consent of Company's stockholders, Stockholder shall
vote any Shares with respect to which Stockholder has voting power (i) in favor
of approval of the Merger and the Merger Agreement and any actions recommended
by the Board of Directors
of Company that are required in furtherance of the transactions expressly
contemplated thereby; provided that Stockholder shall not be required to vote
for any action that would decrease the number of shares of Parent Common Stock
to be received by the stockholders of Company in respect of their shares of
Company capital stock in the Merger; (ii) against any proposal to authorize any
action or agreement that would result in a breach in any respect of any
representation, warranty, covenant, agreement or obligation of Company under the
Merger Agreement or that would prevent the consummation of the Merger; (iii)
against: (A) any proposal by Company to enter into or consent to any Third Party
Acquisition (as defined below); (B) any change in the individuals who, as of the
date hereof, constitute the Board of Directors of Company (except as
contemplated by the Merger Agreement); (C) any extraordinary corporate
transaction, such as a merger, consolidation or other business combination
involving Company and any Third Party (as defined below), other than the Merger;
(D) a sale, lease, transfer or disposition of all or substantially all of the
assets of Company's business outside the ordinary course of business, or of any
assets that are material to its business whether or not in the ordinary course
of business, or a reorganization, recapitalization, dissolution or liquidation
of Company; (E) any amendment of Company's Certificate of Incorporation or
bylaws, except as contemplated by the Merger Agreement; and (F) any other action
that is intended, or could reasonably be expected, to impede, interfere with,
delay, postpone or adversely affect the Merger or any of the other transactions
contemplated by the Merger Agreement, or any of the transactions contemplated by
this Agreement; and (iv) in favor of any proposal to grant Company's management
discretionary authority to adjourn any meeting of Company's stockholders for the
purpose of soliciting additional proxies in the event that, at any meeting held
for the purpose of considering the Merger Agreement, the number of shares of
Company Common Stock present or represented and voting in favor of the Merger is
insufficient to approve the Merger.
For purposes of this Agreement, "Third Party Acquisition"
means the occurrence of any of the following transactions or proposed
transactions: (i) the acquisition of Company by merger or otherwise by any
person (which includes a "person" as such term is defined in Section 13(d)(3) of
the Exchange Act) other than Parent or any affiliate thereof (a "Third Party"),
including, without limitation, any Acquisition Proposal or Superior Proposal,
each as defined in Section 5.4 of the Merger Agreement; (ii) the acquisition by
a Third Party of any material portion (which shall include, without limitation,
five percent (5%) or more) of the assets of Company, other than the sale of its
products in the ordinary course of business consistent with past practices;
(iii) the acquisition by a Third Party of five percent (5%) or more of the
outstanding Common Stock; (iv) the adoption by Company of a plan of liquidation
or dissolution or the declaration or payment of an extraordinary dividend; or
(v) the acquisition (or any group of acquisitions) by Company by merger,
purchase of stock or assets, joint venture or otherwise of a direct or indirect
ownership interest or investment in any business (or businesses) whose annual
revenues, net income or assets is equal to or greater than five percent (5%) of
the assets of Company, respectively.
For purposes of this Agreement, "beneficially own" or
"beneficial ownership" with respect to any securities shall have the meaning set
forth in Rule 13d-3 ("Rule 13d-3") under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"). Securities beneficially owned by Stockholder shall
include securities beneficially owned by all other persons with whom Stockholder
would constitute a "group" as within the meaning of Section 13(d)(3) of the
Exchange Act.
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2. IRREVOCABLE PROXY.
(a) Stockholder hereby constitutes and appoints each of Xxxxxx
X. Xxxxxxx and Xxxxx Xxxxxx (each, a ""Proxy Holder"), acting singly, with full
power of substitution, Stockholder's true and lawful proxy and attorney-in-fact
to vote all Shares with respect to which Stockholder has voting power at any
meeting (and any adjournment or postponement thereof) of Company's stockholders
called for purposes of considering any proposal described in the first paragraph
of Section 1 above (each a "Specified Proposal") and on no other matter, and in
any action by written consent of Company's stockholders in lieu of any such
meeting, and instructs each Proxy Holder to vote in the manner specified in
Section 1 on any such Specified Proposal; PROVIDED, that nothing in this
paragraph shall be deemed to authorize the Proxy Holder to vote any shares with
respect to any action or proposal that is not expressly a Specified Proposal.
(b) The proxy and power of attorney granted herein (i) is
granted in consideration of the Parent's execution of the Merger Agreement, (ii)
is intended to secure Company's obligations under the Merger Agreement and
therefore shall be irrevocable during the term of this Agreement, (iii) shall be
deemed to be coupled with an interest sufficient in law to support an
irrevocable proxy and (iv) shall revoke all prior proxies granted by
Stockholder. Stockholder shall not grant any proxy to any person that conflicts
with the proxy granted herein, and any attempt to do so shall be void. The power
of attorney granted herein is a durable power of attorney and shall survive the
death or incapacity of Stockholder.
(c) If Stockholder fails for any reason to vote the Shares
with respect to which Stockholder has voting power in accordance with the
requirements of Section 1 hereof, then the Proxy Holder shall have the right to
vote the Shares with respect to which Stockholder has voting power at any
meeting of Company's stockholders and in any action by written consent of
Company's stockholders in accordance with the provisions of this Section 2. The
vote of the Proxy Holder shall control in any conflict between Stockholder's
vote of such Shares and a vote by Stockholder of such Shares.
(d) The proxy and power of attorney granted herein shall
terminate and shall have no further force and effect as of the Termination Time
(as defined below).
3. DIRECTOR AND OFFICER MATTERS EXCLUDED. Parent acknowledges and
agrees that no provision of this Agreement shall limit or otherwise restrict the
discretion of Stockholder with respect to any act or omission that Stockholder
may undertake or authorize in Stockholder's capacity, if any, as a director or
officer of Company, including, without limitation, any vote that Stockholder may
make as a director of Company with respect to any matter presented to the Board
of Directors of Company.
4. OTHER COVENANTS, REPRESENTATIONS AND WARRANTIES. Stockholder hereby
represents and warrants to Parent as follows:
(a) OWNERSHIP OF SHARES. Stockholder is the beneficial owner
of all the Shares and Options set forth on Exhibit A. On the date hereof, the
Shares and Options set forth on Exhibit A constitute all of the securities of
Company beneficially owned by Stockholder. Except as set forth on Exhibit A,
Stockholder has voting power with respect to the matters set forth in Section 1
hereof with respect to all of the Shares set forth on Exhibit A, with no
limitations, qualifications or restrictions on such rights.
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(b) POWER; BINDING AGREEMENT. Stockholder has the legal
capacity, power and authority to enter into and perform all of such
Stockholder's obligations under this Agreement. To the knowledge of Stockholder,
the execution, delivery and performance of this Agreement by Stockholder will
not violate any applicable law or any agreement or any court order to which
Stockholder is a party or is subject including, without limitation, any voting
agreement or voting trust. This Agreement has been duly and validly executed and
delivered by Stockholder and constitutes the legal, valid and binding obligation
of Stockholder, enforceable against Stockholder in accordance with its terms.
(c) RESTRICTION ON TRANSFER, PROXIES AND NON-INTERFERENCE.
Except as expressly permitted by this Agreement or pursuant to the Merger
Agreement, during the Term, Stockholder shall not, directly or indirectly: (i)
offer for sale, sell, transfer, tender, pledge, encumber, assign or otherwise
dispose of, or, except as contemplated by the Investor Rights Agreement, enter
into any contract, option or other arrangement or understanding with respect to
or consent to the offer for sale, transfer, tender, pledge, encumbrance,
assignment or other disposition of, any or all of the Shares with respect to
which Stockholder has voting power or any interest therein; (ii) grant any
proxies or powers of attorney or deposit any Shares with respect to which
Stockholder has voting power into a voting trust or enter into a voting
agreement with respect to any Shares with respect to which Stockholder has
voting power; (iii) 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 any of Stockholder's
obligations under this Agreement; or (iv) exercise any option to purchase any
shares of Common Stock, including, but not limited to, the Options.
(d) OTHER POTENTIAL ACQUIRORS. Stockholder (i) shall
immediately cease any existing discussions or negotiations with respect to any
Third Party Acquisition; (ii) during the Term, shall not, directly or
indirectly, initiate, solicit or knowingly encourage (including, without
limitation, by way of furnishing any information or assistance), or take any
other action to facilitate knowingly, any inquiries or the making of any Third
Party Acquisition; and (iii) during the Term, shall promptly notify Parent of
any proposals for, or inquiries with respect to, a potential Third Party
Acquisition received by Stockholder or of which Stockholder otherwise has
knowledge.
(e) RELIANCE BY PARENT. Stockholder understands and
acknowledges that Parent is entering into the Merger Agreement in reliance upon
Stockholder's execution and delivery of this Agreement and performance of
Stockholder's obligations hereunder.
(f) INVESTOR RIGHTS AGREEMENT. Contemporaneously with the
execution of this Agreement, Parent and Stockholder shall execute the Investor
Rights Agreement, attached hereto as Exhibit B hereto (the "Investor Rights
Agreement"). At the Effective Time of the Merger, all obligations of the Company
to, and rights of the Stockholder under the Existing Investor Rights Agreement
shall terminate and be of no further force or effect.
5. STOP TRANSFER. During the Term, Stockholder agrees with, and
covenants to, Parent that Stockholder shall not request that Company register
the transfer (book-entry or otherwise) of any certificate or uncertificated
interest representing any Shares with respect to which Stockholder has voting
power, unless such transfer is made pursuant to and in compliance with this
Agreement. In the event of a stock dividend or distribution, or any change in
the Common Stock by reason of any stock dividend, split-up, recapitalization,
combination, exchange of shares or the like, the term "Shares" shall be deemed
to refer to and include the
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Shares as well as all such stock dividends and distributions and any shares into
which or for which any or all of the Shares may be changed or exchanged.
6. TERMINATION. This Agreement, the proxy granted pursuant to Section 2
hereof and Stockholder's covenants and agreements contained herein with respect
to the Shares with respect to which Stockholder has voting power shall terminate
upon the earliest to occur of: (a) the termination of the Merger Agreement in
accordance with its terms, (b) the termination of the Investor Rights Agreement,
(c) the Merger Agreement shall have been amended or modified in a manner that
could adversely affect the rights or remedies of the Stockholder, including,
without limitation, any action that would decrease the number of shares of
Parent Common Stock to be received by the stockholders of Company in respect of
their shares of Company capital stock in the Merger or (d) the Effective Time
(such time being the "Termination Time"). For purposes of this Agreement, "Term"
shall mean the period from the date hereof until the Termination Time. Nothing
set forth herein shall relieve Stockholder of any liability for any breach of
any representation, warranty, covenant, agreement or obligation set forth in
this Agreement arising prior to such termination of this Agreement.
7. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement and the Investor Rights
Agreement constitute the entire agreement between the parties with respect to
the subject matter hereof and supersedes all other prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof and thereof.
(b) CERTAIN EVENTS. Stockholder agrees that this Agreement and
the obligations hereunder shall attach to the Shares with respect to which
Stockholder has voting power and shall be binding upon any person to whom legal
or beneficial ownership of any Shares with respect to which Stockholder has
voting power shall pass, whether by operation of law or otherwise.
Notwithstanding any transfer of Shares with respect to which Stockholder has
voting power, the transferor shall remain liable for the performance of all
obligations under this Agreement of the transferor.
(c) ASSIGNMENT. This Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of the other
party; provided, however, that Parent may, in its sole discretion, assign its
rights and obligations hereunder to any direct or indirect wholly owned
subsidiary of Parent.
(d) AMENDMENTS, WAIVERS, ETC. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated,
except upon the execution and delivery of a written agreement executed by the
parties hereto.
(e) NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telecopy, or by
mail (registered or certified mail, postage prepaid, return receipt requested)
or by any nationally-recognized overnight courier service, such as Federal
Express, providing proof of delivery. Any such notice or communication shall be
deemed to have been delivered and received (i) in the case of hand delivery, on
the date of such delivery, (ii) in the case of telecopy, on the date sent if
confirmation of receipt is received and such notice is also promptly mailed by
registered or certified mail (return receipt requested), (iii) in the case of a
nationally-recognized overnight courier service, in circumstances under which
such courier guarantees next business day delivery, on the next
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business day after the date when sent, and (iv) the case of mailing on the third
business day following that on which the piece of mail containing such
communication is posted. All communications hereunder shall be delivered to the
respective parties at the following addresses:
If to Stockholder: as set forth on Exhibit A
with copies to: C-Bridge Internet Solutions, Inc.
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Vice President and General Counsel
and
Xxxxxx, Xxxx & Xxxxxxxx LLP
0000 Xxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxxxxxx Xxxxxxxxx
If to Parent: eXcelon Corporation
00 Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
Chief Executive Officer
with a copy to: Xxxxx, Xxxx & Xxxxx LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx, Xx., Esq
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the matter set forth above.
(f) SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
(g) SPECIFIC PERFORMANCE. Each of the parties hereto
recognizes and acknowledges that a breach by it of any covenants or agreements
contained in this Agreement will cause the other party to sustain damage for
which it would not have an adequate remedy at
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law for money damages, and therefore each of the parties hereto agrees that in
the event of any such breach the aggrieved party shall be entitled to the remedy
of specific performance of such covenants and agreements and injunctive and
other equitable relief in addition to any other remedy to which it may be
entitled, at law or in equity.
(h) 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, and 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.
(i) GOVERNING LAW.
(1) THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND
IN ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN
ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICT
OF LAW PRINCIPLES THEREOF. The parties hereby irrevocably submit to the
jurisdiction of the courts of the State of Delaware and the Federal courts of
the United States of America located in the State of Delaware solely in respect
of the interpretation and enforcement of the provisions of this Agreement and of
the documents referred to in this Agreement, and in respect of the transactions
contemplated hereby, and hereby waive, and agree not to assert, as a defense in
any action, suit or proceeding for the interpretation or enforcement hereof or
of any such document, that it is not subject thereto or that such action, suit
or proceeding may not be brought or is not maintainable in said courts or that
the venue thereof may not be appropriate or that this Agreement or any such
document may not be enforced in or by such courts, and the parties hereto
irrevocably agree that all claims with respect to such action or proceeding
shall be heard and determined in such a Delaware state or federal court. The
parties hereby consent to and grant any such court jurisdiction over the person
of such parties and over the subject matter of such dispute and agree that
mailing of process or other papers in connection with any such action or
proceeding in the manner provided in Section 7(e) in such other manner as may be
permitted by Applicable Law, shall be valid and sufficient service thereof.
(2) The parties agree that irreparable damage would
occur and that the parties would not have any adequate remedy at law 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 Federal court located in the
State of Delaware or in Delaware state court, this being in addition to any
other remedy to which they are entitled at law or in equity.
(3) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY
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OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH
SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii)
EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH SUCH PARTY HAS BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE WAIVERS AND
CERTIFICATIONS IN THIS SECTION 7(i).
(j) COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of which,
taken together, shall constitute one and the same Agreement.
(k) CERTAIN DEFINITIONS. Capitalized terms used but not
defined herein shall have the meanings ascribed to such terms in the Merger
Agreement.
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IN WITNESS WHEREOF, Parent and Stockholder have caused this
Irrevocable Proxy and Voting Agreement to be duly executed as of the day and
year first above written.
EXCELON CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chairman and Chief Executive Officer
STOCKHOLDER:
INSIGHT CAPITAL PARTNERS III, L.P.
By: InSight Venture Associates III, L.L.C.,
its General Partner
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Member
INSIGHT CAPITAL PARTNERS (CAYMAN) III, L.P.
By: InSight Venture Associates III, L.L.C.,
its General Partner
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Member
INSIGHT CAPITAL PARTNERS III -
CO-INVESTORS, L.P.
By: InSight Venture Associates III, L.L.C.,
its General Partner
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Member
EXHIBIT A
IV
III Number of Shares of Common
I II Number of Shares of Stock Issuable Upon Exercise
Name of Stockholder Address Common Stock of Options
InSight Capital Partners III, L.P. 000 Xxxxx Xxxxxx 1,440,613.72 - -
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx, Esq.
InSight Capital Partners c/o X.X. Xxxxxx & Company 356,865.85 - -
(Cayman) III, X.X. Xxxxxx Xxxxx
X.X. Xxx 000XX
Xxxx Xxxxxx
Xxxxxx Xxxx
Grand Cayman, Cayman Islands
InSight Capital Partners III - 000 Xxxxx Xxxxxx 252,520.44 - -
Co-Investors, L.P. 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx, Esq.
