IRREVOCABLE PROXY
AND
VOTING AGREEMENT
[FOR EXCELON EXECUTIVE OFFICERS/DIRECTORS]
THIS IRREVOCABLE PROXY AND VOTING AGREEMENT, dated as of May 22, 2001
(this "Agreement"), is entered into by and between C-Bridge Internet Solutions,
Inc., a Delaware corporation (the "Company"), on the one hand, and the
stockholder of Parent (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, eXcelon Corporation ("Parent"), Comet
Acquisition Corp., a wholly owned subsidiary of Parent ("Merger Sub"), and the
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 Parent 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, Company 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 agrees with Company
that, at any meeting of Parent's stockholders, however called, and any
adjournment or postponement thereof, or in connection with any written consent
of Parent'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
Parent that are required in furtherance of the transactions contemplated
thereby; provided that Stockholder shall not be required to vote for any action
that would increase the number of shares of 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 Parent under the Merger Agreement or that
would prevent the consummation of the Merger; (iii) against: (A) any proposal by
Parent 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 Parent (except as contemplated by the Merger
Agreement); (C) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving Parent 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 Parent'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 Parent; (E) any
amendment of Parent'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 Parent's management discretionary
authority to adjourn any meeting of Parent'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 Parent
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 Parent 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 Company 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 Parent, 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 Parent 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 Parent 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 Parent, 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.
2. IRREVOCABLE PROXY.
(a) Stockholder hereby constitutes and appoints each of Xxxxxx
Xxxxxxx and Xxxxxxxx Xxxxxxxx (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 Parent's
stockholders called for purposes of considering any proposal described in the
first paragraph of Section 1 above (each a "Specified Proposal"), and in any
action by written
consent of Parent'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.
(b) The proxy and power of attorney granted herein (i) is
granted in consideration of the Company's execution of the Merger Agreement,
(ii) is intended to secure Parent'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 Parent's stockholders and in any action by written consent of
Parent'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.
3. DIRECTOR AND OFFICER MATTERS EXCLUDED. Company 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 Parent, including, without limitation, any vote that Stockholder may
make as a director of Parent with respect to any matter presented to the Board
of Directors of Parent.
4. OTHER COVENANTS, REPRESENTATIONS AND WARRANTIES. Stockholder
hereby represents and warrants to Company 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
Parent beneficially owned by Stockholder. 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.
(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. 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, Stockholder shall not, directly or indirectly: (i) offer for sale,
sell, transfer, tender, pledge, encumber, assign or otherwise dispose of, or
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) from and after the date hereof until the earlier
of the termination of the Merger Agreement in accordance with its terms and the
Effective Time (as defined in the Merger Agreement), 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) 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 THE COMPANY. Stockholder understands and
acknowledges that the Company is entering into the Merger Agreement in reliance
upon Stockholder's execution and delivery of this Agreement and performance of
Stockholder's obligations hereunder.
5. STOP TRANSFER. Stockholder agrees with, and covenants to, the
Company that Stockholder shall not request that Parent 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 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 and (b) the Effective 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 constitutes 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.
(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 the Company may, in its sole discretion, assign
its rights and obligations hereunder to any direct or indirect wholly owned
subsidiary of the Company.
(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 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: eXcelon Corporation
00 Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
Chief Executive Officer
and
Xxxxx, Xxxx & Xxxxx LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx, Xx., Esq
If to the Company: C-Bridge Internet Solutions, Inc.
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Vice President and General Counsel
with a copy to: Xxxxxx, Xxxx & Xxxxxxxx LLP
0000 Xxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxxxxxx Xxxxxxxxx
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 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 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, Company and Stockholder have caused this
Irrevocable Proxy and Voting Agreement to be duly executed as of the day and
year first above written.
C-BRIDGE INTERNET SOLUTIONS, INC.
By: /s/ Xxxxxxxx Xxxxxxxx
---------------------------------------------
Name:
Title:
STOCKHOLDER:
By: /s/ Xxxxx Xxxxxx
---------------------------------------------
Name:
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
Xxxxx Xxxxxx 00 Xxxxxxxxx Xxxx 10,702 320,000
Wellesley, MA
