VOTING AGREEMENT AND IRREVOCABLE PROXY
THIS
VOTING AGREEMENT AND IRREVOCABLE PROXY (this "Agreement"), is
made and
entered into as of March 16, 2005 between Xxxxxx Xxxxxxxxx (the "Stockholder") and
Hermes
Acquisition Company I LLC, a Delaware limited liability company ("Hermes").
W
I T N E S S E T
H
WHEREAS,
the
Stockholder is the record and beneficial owner of the number of shares of common
stock of Cenuco, Inc., a Delaware corporation (the "Company"), set
forth on Exhibit
A (such
shares, and any other voting or equity securities of the Company hereafter
acquired by the
Stockholder prior to the termination of this Agreement (whether by way of
purchase, gift, stock dividend or distribution, recapitalization,
reclassification, combination, exchange of shares, merger or other transaction)
being referred to collectively as the "Shares");
WHEREAS,
in
accordance with the terms of that certain Merger Agreement, dated March 16,
2005, by and among the Company, Hermes Holding Company, Inc. ("Merger
Sub")
and
Hermes (including all exhibits and schedules thereto, the "Merger
Agreement"), the
Company
and Hermes intend to close the Merger (as defined, along with certain other
capitalized terms, in
the Merger Agreement) (the "Transaction");
WHEREAS,
Hermes
desires to have the Stockholder, and the Stockholder desires, in order to
induce Hermes to proceed with closing the Transaction, to agree to vote in favor
of approving
the Transaction and certain matters relating to the Transaction (the
"Additional
Matters") that
require approval of the Company's stockholders (collectively, the "Stockholders") and
that are necessary or desirable in connection with the Transaction, each as set
forth below; and
WHEREAS,
the
Additional Matters shall include (a) the amendment of the Company's Certificate
of Incorporation to increase its authorized common stock and to change the name
of the Company to "Lander Co., Inc." or such other name as is designated by
Hermes, and (b) the approval
of the appointment of KPMG LLC as the Company's auditors, and (c) such other
matters as may be submitted to a vote of the Company's Stockholders as described
in the Company's
Proxy Statement to be sent to its Stockholders relating to the Transaction and
such Additional
Matters (the "Proxy
Statement").
WHEREAS,
this
Agreement is intended to be binding on the Stockholder as permitted by
Section 218 of the Delaware General Corporation Law.
NOW,
THEREFORE, in
consideration of the foregoing and the mutual covenants and agreements contained
herein, and intending to be legally bound hereby, the parties hereby agree as
follows:
Section 1 Voting
of Shares.
The
Stockholder covenants and agrees that until the Termination Date (as defined
below), at the meeting of the Company's Stockholders or any adjournment thereof
to consider the Transaction
and the Additional Matters, however called, and in any action by written consent
of the
Stockholders of the Company to consider the Transaction and the Additional
Matters, the Stockholder will vote, or cause to be voted, all of the
Stockholder's Shares in favor of the Transaction and the Additional Matters as
described in and in accordance with, the terms and conditions set forth in this
Agreement, the Merger Agreement and the Proxy Statement.
(a) The
Stockholder hereby irrevocably grants
to and appoints Hermes, and any individual
designated in writing by Hermes, as his proxy and attorney-in-fact (with full
power of substitution),
for and in his name, place and xxxxx, to vote his Shares at any meeting of the
Stockholders
of the Company, or any adjournment thereof, called with respect to any of the
matters
specified in, and in accordance and consistent with, this Section 1, or to act
by written consent
with respect to such matters, and against any actions or approval that would
compete or be
inconsistent with or could serve to interfere with, delay, discourage, adversely
affect or inhibit the
timely consummation and approval of the Transaction and the Additional Matters.
The Stockholder
understands and acknowledges that Hermes is entering into the Merger Agreement
in
reliance upon the Stockholder's execution and delivery of this Agreement. The
Stockholder hereby
affirms that the irrevocable proxy
set forth in this Section 1 (b) is given in connection with the
Transaction and the Additional Matters, and that such irrevocable proxy is
given to secure the performance
of the duties of the Stockholder under this Agreement. Except as otherwise
provided
for herein, the Stockholder hereby affirms that the irrevocable proxy is
coupled with an interest
and may under
no circumstances be revoked.
Notwithstanding any other provisions of this
Agreement, the irrevocable proxy
granted hereunder shall automatically terminate upon the termination of this
Agreement.
(b) The
Stockholder hereby revokes any and all previous proxies granted with respect
to any of
the Shares and shall not hereafter, until this Agreement terminates, grant or
purport to grant any
other proxy or power of attorney with respect to any of the Shares or enter into
any agreement
(other than this Agreement), arrangement or understanding with any Person,
directly or
indirectly, to vote, grant any proxy or give instructions with respect to the
voting of any of the Shares
covering the subject matter hereof. Notwithstanding anything stated to the
contrary, the foregoing
shall not prohibit the Stockholder from granting proxies in connection with the
annual meeting of the Company's Stockholders with respect to voting on matters
other than the matters that are
the subject matter of this Agreement.
(c) The
Stockholder agrees to use his best efforts to encourage the other Stockholders
of the Company to vote to approve the Transaction and the Additional
Matters.
(d) The
Stockholder hereby agrees to timely furnish to the Company such information
concerning the Stockholder and his Affiliates (other than the Company and any of
its Subsidiaries)
as the Company may from time to time reasonably request in writing for inclusion
in the Proxy Statement.
Section
2 Transfer
of Shares. The
Stockholder covenants and agrees that until the termination of this Agreement,
the Stockholder will not directly or indirectly, (a) offer for sale, sell,
assign, transfer (including by purchase, interspousal disposition pursuant to a
domestic
relations
proceeding or otherwise by operation of law), pledge, encumber or otherwise
dispose of any of
the Shares, (b) deposit any of the Shares into a voting trust or enter into a
voting agreement
or arrangement with respect to the Shares or grant any proxy or power of
attorney with respect thereto which is inconsistent with this Agreement, (c)
enter into any contract, option or other arrangement or undertaking with respect
to the direct or indirect sale, assignment, transfer (including by purchase,
interspousal disposition pursuant to a domestic relations proceeding or
otherwise by operation of law) or other disposition of any Shares unless the
transferee
(i) enters into an agreement with Hermes, satisfactory to Hermes, containing
provisions
substantially similar to this Agreement and (ii) notifies Hermes of such
transfer or (d) take any
action that would make any of the Stockholder's representations or warranties in
this Agreement
untrue or incorrect or have the effect of preventing or disabling the
Stockholder from performing his obligations under this Agreement.
Section
3 Stockholder
Representations. The Stockholder represents to Hermes that (a) on the date
hereof, the Stockholder is the record and beneficial owner (as determined
pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of
the Shares set forth next to the Stockholder's name on Exhibit A and that
the Stockholder has sole voting power, without restrictions, with respect to all
of his shares of common stock of the Company comprising the Shares; and (b) the
Stockholder has the right, power and authority to execute and deliver this
Agreement and to perform his obligations under this Agreement, and this
Agreement has been duly executed and delivered by the Stockholder and
constitutes a valid and legally binding agreement of the Stockholder,
enforceable in accordance with its terms; and such execution, delivery and
performance by the Stockholder of this Agreement will not (i) conflict with,
require a consent, waiver or approval under, or result in a breach of or default
under, any of the terms of any contract, commitment or other agreement to which
the Stockholder is bound; (ii) violate any order, writ, injunction decree or
statute, or any rule or regulation, applicable to the Stockholder or any of the
properties or assets of the Stockholder or (iii) result in the creation of, or
impose any obligation on the Stockholder to create, any lien, charge or other
encumbrance of any nature whatsoever upon the Shares; and (c) the Shares are now
and will at all times during the term of this Agreement be held by the
Stockholder, or by a nominee or custodian for the account of the Stockholder,
free and clear of all pledges, liens, proxies, claims, shares, security
interests, preemptive rights and any other encumbrances whatsoever with respect
to the ownership, transfer or voting of such Shares; and there are no
outstanding options, warrants or rights to purchase or acquire, or other
agreements relating to, such Shares other than this Agreement.
Section
4 Termination. This
Agreement shall terminate upon the earlier to occur of (a) the consummation
of the Transaction, or (b) any termination of the Merger Agreement in accordance
with its
terms.
Section
5 Further
Assurances. The
stockholder from time to time will execute and deliver, or cause to be executed
and delivered, all further appointments, documents and instruments and use his
best effort to take, or cause to be taken, all actions requested by Hermes to
consummate and make effective the transactions contemplated by this
Agreement.
Section
6 Miscellaneous.
(a) This
Agreement constitutes the entire agreement between the parties hereto with
respect
to the subject matter hereof and supersedes all prior agreements and
understandings, both written and oral, between the parties with respect thereto.
This Agreement may not be amended, modified or rescinded except by an instrument
in writing signed by each of the parties hereto.
(b) If any
term or other provision of this Agreement is invalid, illegal or incapable of
being
enforced by any rule of law, or public policy, all other terms and provisions of
this Agreement
shall nevertheless remain in full force and effect. Upon such determination that
any term or other provision is invalid, illegal or incapable of being enforced,
the parties hereto shall negotiate in good faith to modify this Agreement so as
to effect the original intent of the parties as closely as possible to the
fullest extent permitted by applicable law in a mutually acceptable manner in
order that the terms of this Agreement remain as originally contemplated to the
fullest extent possible.
(c) The
headings in this Agreement are inserted for convenience only, and shall not
constitute a part of this Agreement or be used to construe or interpret any of
its provisions. The parties have participated jointly in the negotiation and
drafting of this Agreement. If a question of
interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties, and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship
of any provision of this Agreement. The word "include" or "including" means
include or
including, without limitation. The use of a particular pronoun herein will not
be restrictive as to gender
or number but will be interpreted in all cases as the context may
require.
(d) This
Agreement shall be governed by and construed in accordance with the General
Corporation Law of Delaware and the other internal laws of the State of
Delaware, without
giving effect to any choice 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. To the fullest extent permitted by law (a)
each party
irrevocably subjects itself to the exclusive jurisdiction of the federal and
state courts located in New York County, New York, for the purposes of any
action, suit or proceeding (collectively,
"Action")
arising out of this Agreement or any transaction contemplated hereby,
(b) each
party agrees to commence any Action relating to this Agreement or any
transaction contemplated
hereby exclusively in the federal or state courts located in New York County,
New York, (c)
each party agrees that service of any process, summons, notice or document to
such party's
respective address set forth in, and served in the manner provided in paragraph
(g) of this Section
6,
shall be
effective service of process for any Action with respect to any matters to
which it
has submitted to jurisdiction as set forth in this paragraph, and (d) each party
irrevocably
and unconditionally waives any objection to the laying of venue of any Action
arising
out of this Agreement or the transactions contemplated hereby in the federal and
state courts
located in New York County, New York, and irrevocably and unconditionally waives
and agrees
not to plead or claim in any such court that (i) it or he or its or his assets
is (are) immune from
jurisdiction of any such court or from any legal process commenced in such
court, and (ii) the
Action in any such court is brought in an inconvenient forum, that the venue of
such Action is
improper, or that this Agreement, or the subject matter hereof or thereof, may
not be enforced in or by such court.
(e) The
Stockholder acknowledges that it will be impossible to measure in money the
damage to Hermes if the Stockholder fails to comply with any of the obligations
imposed by this Agreement,
that every such obligation is material and that, in the event of any such
failure, Hermes will not have an adequate remedy at law or damages. Accordingly,
the Stockholder
agrees
that injunctive relief or other equitable remedy, in addition to remedies at law
or damages, is the appropriate remedy for any such failure and will not oppose
the granting of such relief on the basis
that Hermes has an adequate remedy at law. The Stockholder agrees that he will
not seek, and agrees to waive any requirement for, the securing or posting of a
bond in connection with Hermes's seeking or obtaining such equitable
relief
(f) If any
legal action or any other proceeding is brought for the enforcement of this
Agreement,
or because of an alleged dispute, breach, default, or misrepresentation in
connection with any
provision of this Agreement, the prevailing party or parties shall be entitled
to recover reasonable
attorneys' fees and other costs incurred in that action or proceeding, in
addition to any other
relief to which it or they may be entitled.
(g) All
notices, requests, claims, demands and other communications hereunder shall
be in
writing and shall be deemed to have been given if sent by registered or
certified mail, first class
postage prepaid, return receipt requested, or by overnight courier, to the
addresses of the parties set forth below or such other future address as may be
specified by a party by notice to the other
party. Such communications may also be given by personal delivery, by
facsimile or by
regular mail, but shall be effective only if and when actually
received.
If to
Hermes, at:
c/o
Lander Co., Inc.
Xxx
Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx,
XX 00000
Attn:
Xxxx X. Xxxxxx
Telecopier
No.: 609-924-7250
If to the
Stockholder, at:
Cenuco,
Inc.
0000
Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxx
Xxxxx, Xxxxxxx 00000
Attn:
Xxxxxx Xxxxxxxxx
Telecopier
No.: (000) 000-0000
(h) This
Agreement may be executed in two or more original or facsimile counterparts,
each with shall be deemed an original and all of which together shall constitute
but one and the same instrument. Facsimile signatures on this Agreement shall be
valid and effective for all purposes.
(i) All
covenants and agreements contained in this Agreement shall be binding upon and
insure to the benefit of the respective successors, heirs and assigns of the
parties hereto.
SIGNATURES
APPEAR ON THE FOLLOWING PAGE]
IN
WITNESS WHEREOF, each of the parties hereto has caused this Voting Agreement and
Irrevocable Proxy to be signed individually or by its respective duly authorized
officer as of the date
first written above.
HERMES ACQUISITION COMPANY I LLC | ||
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By: /s/ Xxxxxx X. Xxxxxxxx | ||
Name: Xxxxxx X. Xxxxxxxx | ||
Title: Manager |
STOCKHOLDER: | ||
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/s/ Xxxxxx Xxxxxxxxx | ||
Xxxxxx
Xxxxxxxxx | ||
Exhibit
A
Shares
of Cenuco Common Stock
Xxxxxx Xxxxxxxxx |
3,717,267 |