Exhibit 99.2
FORM OF TOTAL RESEARCH CORPORATION VOTING AGREEMENT
VOTING AGREEMENT, dated as of ______, 2001 (the "Agreement"),
between the undersigned holder (the "Holder") of shares of the common stock,
$0.001 par value, of Total Research Corporation, a Delaware corporation (the
"Company"), and Xxxxxx Interactive Inc. ("Xxxxxx"), a Delaware corporation.
RECITALS
The Company, Xxxxxx and Total Merger Sub Inc., a Delaware
corporation and a direct, wholly owned subsidiary of Xxxxxx ("Merger Sub"),
propose to enter into an Agreement and Plan of Merger dated the date hereof (the
"Merger Agreement"; capitalized terms not otherwise defined herein being used
herein as therein defined), pursuant to which Merger Sub would be merged (the
"Merger") with and into Xxxxxx, and each outstanding Total Share would be
converted into the right to receive Xxxxxx Shares; and
The Holder is the beneficial owner of the number of Total Shares and
options or rights to acquire Total Shares (such securities and any other
securities of the Company hereafter acquired by the Holder, the "Subject
Securities") set forth on the signature page to this Agreement; and
As a condition of its entering into the Merger Agreement, Xxxxxx has
requested the Holder to agree, and the Holder has agreed, to enter into this
Agreement.
AGREEMENT
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Agreement to Vote Shares. Prior to the Termination Date (as
hereinafter defined), at every meeting of the stockholders of the Company called
with respect to any of the following, and at every adjournment thereof, and on
every action or approval by written consent of the stockholders of the Company
with respect to any of the following, the Holder shall vote all Subject
Securities that are voting securities and that it beneficially owns at the time
of any such vote: (i) in favor of adoption of the Merger Agreement and (ii)
against (w) approval of any Total Alternative Transaction made in opposition to
or in competition with the Merger, (x) any merger (including, without
limitation, a Total Alternative Transaction), consolidation, sale of assets
requiring stockholder approval, reorganization or recapitalization of the
Company, with any other person other than Xxxxxx or its affiliates, and (y) any
liquidation or winding up of the Company.
2. Transfer of Securities. From and after the date hereof until the
conclusion of the meeting at which the Company's stockholders vote on the
adoption of the Merger Agreement and the Holder votes in favor of such adoption
(the "Meeting Date"), the Holder will not effect a tender, sale, exchange,
pledge, disposition or other transfer or encumbrance (any of the foregoing, a
"Sale") of any of the Subject Securities to or in favor of any person, unless,
prior to any such Sale, such person shall have agreed in a writing, in form and
substance reasonably acceptable to Xxxxxx, for the benefit of and delivered to
Xxxxxx, to be bound by all provisions of
this Agreement applicable to the Holder. Following the Meeting Date, the Holder
shall not consummate a Sale to or in favor of any person, unless prior to any
such Sale, such person shall have agreed in writing, in form and substance
reasonably acceptable to Xxxxxx, for the benefit of and delivered to Xxxxxx, to
be bound by the provisions of this Agreement.
3. No Ownership Interest. Nothing contained in this Agreement shall
be deemed to vest in Xxxxxx any direct or indirect ownership or incidents of
ownership of or with respect to the Subject Securities. All rights, ownership
and economic benefits of and relating to the Subject Securities shall remain and
belong to Holder, and Xxxxxx shall have no authority to manage, direct,
superintend, restrict, regulate, govern or administer any of the policies or
operations of the Company or exercise any power or authority to direct the
Holder in the voting of any of the Subject Securities, except as otherwise
expressly provided herein.
4. Rule 145 Provisions
(a)The Holder has been advised that the delivery of the Xxxxxx
Shares to the Holder pursuant to the Merger will be registered under the
Securities Act, pursuant to a registration statement on Form S-4. The Holder has
also been advised that at the time of the Total Stockholders Meeting, as to
Total he or she may be an "affiliate" under Rule 145(c) as defined in Rule 405
of the Rules and Regulations of the SEC under the Securities Act, although
nothing contained herein shall be construed as an admission of such fact.
(b) The Holder agrees not to offer, sell, transfer or otherwise
dispose of any Xxxxxx Shares received in the Merger, except (i) at such time as
a registration statement under the Securities Act covering sales of such Xxxxxx
Shares is effective and a prospectus is made available under the Securities Act,
(ii) within the limits, and in accordance with the applicable provisions of,
Rule 145(d) under the Securities Act, or (iii) in a transaction which, in the
opinion of counsel satisfactory to Xxxxxx, is not required to be registered
under the Securities Act; and acknowledges and agrees that Xxxxxx is under no
obligation to register the sale, transfer or other disposition of Xxxxxx Shares
by the Holder or on behalf of the Holder;
(c) The Holder agrees that Xxxxxx shall not be bound by any
attempted sale of any Xxxxxx Shares received by the Holder in the Merger, and
Xxxxxx' transfer agent shall be given appropriate stop transfer orders and shall
not be required to register any such attempted sale, unless the sale has been
effected in compliance with the terms of this Agreement; and further agrees that
the certificate representing the Xxxxxx Shares to be received by Holder in the
Merger may be endorsed with a restrictive legend consistent with the terms of
this Agreement;
(d) The Holder acknowledges and agrees that the provisions of
subparagraphs (b) and (c) hereof also apply to the fullest extent permitted by
law to the Xxxxxx Shares received in the Merger by (i) his or her spouse, (ii)
any of his or her relatives or relatives of his or her spouse occupying his or
her home, (iii) any trust or estate in which he or she, his or her spouse, or
any such relative owns at least a 10% beneficial interest or of which any of
them serves as trustee, executor or in any similar capacity, and (iv) any
corporation or other organization in which the undersigned, any affiliate of the
undersigned, his or her spouse, or any such relative owns at least 10% of any
class of equity securities or of the equity interest;
2
(e) In connection with the foregoing, Xxxxxx acknowledges and
agrees as follows:
(i) From and after the Effective Time, unless and until the Holder has
disposed of all the Xxxxxx Shares received by it as Merger Consideration,
or such shares are permitted to be resold pursuant to Rule 145(d)(3) under
the Securities Act, Xxxxxx shall use all reasonable best efforts to make
and keep "available adequate current public information" (as those terms
are understood and defined in Rule 144 under the Securities Act) with
respect to Xxxxxx and, upon any reasonable request by such an affiliate,
provide a statement as to such availability. Xxxxxx has filed, on a timely
basis, all reports required to be filed with the SEC under Section 13 of
the Exchange Act during the preceding 12 months.
(ii) Xxxxxx agrees that the stop transfer instructions and legends
referred to above shall be terminated or removed if (A) one year shall
have elapsed from the date of the effective time of the Merger and the
provisions of Rule 145(d)(2) under the Securities Act are then available
to the undersigned or (B) the undersigned shall have delivered to Xxxxxx a
copy of a letter from the staff of the SEC or an opinion of counsel, in
form and substance reasonably satisfactory to Xxxxxx, to the effect that
such instructions and legends are not required for the purposes of the
Securities Act.
5. Certain Representations of the Holder. The Holder represents and
warrants to Xxxxxx as follows:
(a) Authorization. The Holder has the power to execute, deliver and
perform this Agreement, and has taken all necessary action to authorize the
execution, delivery and performance by it of this Agreement. This Agreement has
been duly executed and delivered by the Holder and, assuming due and valid
authorization, execution and delivery by Xxxxxx, constitutes a valid and binding
obligation of the Holder, enforceable against the Holder in accordance with its
terms (except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other similar
laws and principles now or hereafter in effect, affecting creditors' rights
generally).
(b) Governmental Authorization. The execution, delivery and
performance by the Holder of this Agreement and the consummation by the holder
of the transactions contemplated hereby do not require the Holder to obtain any
consent of, or to make any filing with, any Governmental Entity other than: (i)
compliance with any applicable requirements of Xxxx-Xxxxx; (ii) compliance with
any applicable requirements of the Exchange Act; and (iii) such other consents
and filings which, if not obtained or made, would not have a material adverse
effect on the ability of the Holder to consummate the transactions contemplated
hereby or the ability of the parties to consummate the Merger Agreement.
(c) Non-Contravention. The execution, delivery and performance by
the Holder of this Agreement and the consummation by the Holder of the
transactions contemplated hereby do not and will not, (i) contravene or conflict
with any organizational document of the Holder, (ii) contravene or conflict
with, or constitute a violation of, any provision of any law, regulation,
judgment, injunction, order or decree binding upon the Holder or any of its
properties
3
or assets, (iii) with or without the giving of notice or passage of time or
both, constitute a breach or default under any agreement, contract or other
instrument binding upon the Holder or, to the Holder's knowledge, the Company,
or (iv) result in the creation or imposition of any Liens on the Subject
Securities, except with respect to the foregoing clauses (ii), (iii) or (iv),
such contraventions, conflicts, violations, breaches, defaults or Liens which
would not, individually or in the aggregate, be reasonably likely to materially
and adversely effect the ability of the Holder to consummate the transactions
contemplated hereby or the ability of Xxxxxx, the Company and Merger Sub to
consummate the Merger Agreement.
(d) Ownership. The Holder is the sole, true, lawful record and
beneficial owner of the Subject Securities identified on the signature page
hereto, and there are no restrictions on voting rights or rights of disposition
pertaining to such Subject Securities.
(e) All Securities. The Subject Securities identified on the
signature page hereto are the only interests in the capital stock of the Company
beneficially owned by the Holder, and Holder has no other option to purchase or
right to subscribe for or otherwise acquire any securities of the Company and
has no other interest in or voting rights with respect to any other securities
of the Company.
(f) Documents Delivered. The Holder acknowledges having reviewed the
Merger Agreement and its attachments and that all reports, proxy statements and
other information with respect to Xxxxxx as filed with the SEC were, prior to
the Holder's execution of this Agreement, available for inspection and copying
at the offices of the SEC and through readily available on-line services; and
that Xxxxxx delivered the following such documents to the Company, which were
made available to the Holder:
(i) Xxxxxx'x Annual Report on Form 10-K for the year ended June
30, 2000;
(ii) Xxxxxx'x proxy statement for its Fiscal 2000 Annual Meeting
of Stockholders; and
(iii) Xxxxxx'x Quarterly Report on Form 10-Q for the period
ended March 31, 2001.
6. Binding Agreement. This Agreement shall be binding upon, and
shall inure to the benefit of, the Holder, and his heirs, estate, personal
representatives and permitted assigns and Xxxxxx and its successors and
permitted assigns.
7. Publication. The Holder hereby permits Xxxxxx, the Company and
Merger Sub to publish and disclose in the Joint Proxy Statement/Prospectus
(including all documents and schedules filed with the SEC) its identity and
ownership of the capital stock of the Company and the nature of its commitments,
arrangements, and understandings pursuant to this Agreement.
8. Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made if and when
4
delivered personally or by overnight courier or sent by electronic transmission,
with confirmation received, to the address or telecopy numbers specified below:
If to the Holder, to the person at the address or the telecopier
number appearing on the signature page beneath the Holder's name.
If to Xxxxxx:
Xxxxxx Interactive Inc.
000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
Facsimile: 000-000-0000
With a copy to:
Xxxxxx Beach LLP
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
or to such other address or telecopy number as any party may have
furnished to the other parties in writing in accordance herewith.
9. Specific Performance. The parties hereto agree that irreparable
harm would occur in the event that any of the provisions of this Agreement were
not performed in accordance with its 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 hereof in any court of the United States or any state
thereof having jurisdiction, this being in addition to any other remedy to which
they are entitled at law or in equity.
10. Amendment. (a) This Agreement may not be amended or modified,
except by an instrument in writing signed on behalf of each of the parties
hereto.
(b) This Agreement may not be waived by either party, except by an
instrument in writing signed on behalf of the party granting such 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.
(c) This Agreement may not be assigned by any party without the
prior written consent of the other party, and any assignment without such
consent shall be void.
5
11. Governing Law/Consent of Jurisdiction. This Agreement shall be
governed by and construed in accordance with the internal laws of the State of
New York, without regard to principles of conflict of laws. Each party hereto
hereby irrevocably submits to the jurisdiction of any New York State or Federal
court sitting in the City of New York in any action or proceeding arising out of
or related to this Agreement, and hereby irrevocably agrees that all claims in
respect of such action or proceeding may be heard and determined in such State
or Federal court. Each party hereto hereby irrevocably consents to the service
of process, which may be served in any such action or proceeding by certified
mail, return receipt requested, by delivering a copy of such process to such
party at its address specified in Section 8 or by any other method permitted by
law.
11. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same agreement.
12. Termination. (a) This Agreement shall terminate upon the earlier
to occur of (i) the Effective Time and (ii) the termination of the Merger
Agreement according to its terms.
(b) Upon any termination of this Agreement as provided in this
Section 14, this Agreement shall thereupon become void and of no further force
and effect, and there shall be no liability in respect of this Agreement or of
any transactions contemplated hereby or by the Merger Agreement on the part of
any party hereto or any of its directors, officers, partners, stockholders,
employees, agents, advisors, representatives or affiliates; provided, however,
that nothing herein shall relieve any party from any liability for such party's
willful breach of this Agreement; and provided further that nothing herein shall
limit, restrict, impair, amend or otherwise modify the rights, remedies,
obligations or liabilities of any person under any other contract or agreement,
including, without limitation, the Merger Agreement.
13. Remedies Cumulative. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise of any thereof
by any party shall not preclude the simultaneous or later exercise of any other
such right, power or remedy by such party.
[This space intentionally left blank]
6
IN WITNESS WHEREOF, this Agreement has been executed by or on behalf
of each of the parties hereto, all as of the date first above written.
XXXXXX INTERACTIVE INC.
By:
----------------------------------
Name:
Title:
7
THE HOLDER:
By:
----------------------------------
Address:
-------------------------------
-------------------------------
-------------------------------
Number of Total Shares Beneficially Owned by the Holder:
________________________________
Rights to Acquire Total Shares Held by the Holder:
________________________________
8
