EXHIBIT 2
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VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as of January 23, 2007, by and
among the undersigned holder (the "Stockholder") of shares of common stock,
$0.02 par value (the "Common Stock") of Xxxxxx, Inc., a Delaware corporation
(the "Company").
WHEREAS, on December 4, 2006, the Company entered into a note purchase
agreement, with investors who purchased an aggregate of $28,880,000 of the
Company's 5% Convertible Subordinated Notes due December 7, 2011 (the "Notes")
which (i) are immediately convertible into up to 6,080,000 shares of the
Company's common stock, $0.02 par value (the "Conversion Shares"), at a
conversion price of $4.75 per share, subject to adjustment, (ii) provide for
interest payable semi-annually at the rate of 5% per annum (ii) have principal
due December 7, 2011, (iii) are callable and redeemable for cash by the Company
after December 7, 2007, and (iv) provide for registration of the Conversion
Shares not later than September 30, 2007;
WHEREAS, the Company previously disclosed the issuance of the Notes as well
as filed the Notes and its related transaction documents (collectively, the
"Notes Transaction Documents") as exhibits to its Current Report on Form 8-K
(the "Notes 8-K") filed with the Securities and Exchange Commission on December
14, 2006; and
WHEREAS, the Stockholder is the record and beneficial owner of the shares
of Common Stock set forth on the signature page of this Agreement (such shares,
together with any shares of capital stock of the Company acquired by the
Stockholder or as to which the Stockholder acquires direct or indirect voting or
investment power after the date hereof and during the term of this Agreement,
being collectively referred to herein as the "Subject Shares").
NOW, THEREFORE, in consideration of the premises representations,
warranties, covenants and agreements contained in this Agreement, the parties
hereto, intending to be legally bound, hereby agree as follows:
1. Agreements of the Stockholder. At any meeting of the Stockholders of
the Company held prior to the Termination Date (as defined in Section 4 below),
however called, and at every adjournment thereof prior to the Termination Date,
or in connection with any written consent of the Stockholders of the Company,
the Stockholder shall vote the Subject Shares in favor of the ratification and
approval of the issuance of (i) the Notes, and (ii) the Conversion Shares
issuable upon conversion of the Notes. Prior to the Termination Date, the
Stockholder shall not enter into any agreement or understanding with any Person
to vote, grant any proxy or give instructions with respect to the voting of the
Subject Shares in any manner inconsistent with the preceding sentence. Prior to
the Termination Date, the Stockholder shall not deposit any of the Subject
Shares into a voting trust or enter into any agreement, other than this
Agreement, with respect to any of the Subject Shares, and shall not take any
other action, directly or indirectly, that would restrict, limit, or interfere
with the performance by the Stockholder of the Stockholder's obligations
hereunder.
2. Representations and Warranties of the Stockholders. The Stockholder
is, as of the date hereof, the beneficial owner of, or has direct or indirect
voting power over, the Subject Shares set forth beneath the Stockholder's name
on the signature page hereto and the Stockholder has the right to vote such
Subject Shares as set forth herein. The Stockholder has the right, power and
authority to enter into this Agreement and to consummate the transactions
contemplated by this Agreement. The execution and delivery of this Agreement by
the Stockholder and the consummation of the transactions contemplated by this
Agreement have been duly authorized by all necessary action on the part of the
Stockholder. This Agreement has been duly executed and delivered by the
Stockholder and constitutes a valid and binding obligation of the Stockholder,
enforceable against the Stockholder in accordance with its terms. The actions by
the Stockholder taken pursuant to the terms hereof will not (A) conflict with or
violate any court order, writ, injunction, judgment or decree applicable to the
Stockholder or by which
any of the Stockholder's assets may be bound or affected, or (B) result in any
breach of any terms or conditions of, or constitute a default under, any
contract, agreement or instrument to which the Stockholder is a party or by
which the Stockholder is bound. The Stockholder acknowledges and agrees by
signing below that it has had an opportunity to review the Notes 8-K and the
Notes Transaction Documents.
3. Miscellaneous.
(a) This Agreement shall terminate, and be of no further force or
effect, automatically without any further action on the part of any parties
hereto, on July 1, 2007 (the "Termination Date"). Nothing in this Agreement
shall relieve any party from liability for any breach of this Agreement.
(b) This Agreement may be amended only by a written instrument signed by
the parties hereto. No waiver by any party hereto of any of the provisions
hereof shall be effective unless set forth in a writing executed by the party so
waiving.
(c) This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware, without giving effect to its
conflicts of law principles.
(d) All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given when personally delivered,
telecopied (with confirmation of receipt), one day after deposit with a
reputable overnight delivery service (charges prepaid), and three days after
deposit in the U.S. Mail (postage prepaid and return receipt requested) to the
principal address of such party or such other address as the recipient party has
previously delivered notice to the sending party
(e) This Agreement contains the entire understanding of the parties with
respect to the subject matter hereof. There are no restrictions, agreements,
promises, representations, warranties, covenants or undertakings with respect to
the subject matter hereof other than those expressly set forth herein. This
Agreement supersedes all prior agreements and understandings, whether written or
oral, between the parties with respect to such subject matter.
(f) This Agreement may be executed in separate counterparts (including
by means of telecopied signature pages), and by different parties on separate
counterparts each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
(g) If any provision of this Agreement is held to be invalid or
unenforceable by a court of competent jurisdiction, such invalidity or
unenforceability shall not affect the validity and enforceability of the other
provisions of this Agreement and the provision held to be invalid or
unenforceable shall be enforced as nearly as possible according to its original
terms and intent to eliminate such invalidity or unenforceability.
[signature page follows]
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IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of the
Stockholder as of the date first above written.
STOCKHOLDER
Ashford Capital Management, Inc. w/discretion
as Investment Advisor f/b/o various clients
By: /s/ Xxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxx X. Xxxxxxx
Title: Chairman & CEO
XXXXXX, INC.
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: Senior Vice President
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