VOTING AGREEMENT
VOTING
AGREEMENT
(this
“Agreement”), dated as of January , 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 3 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 | ||
| |
|
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| By: | ||
|
Name: |
||
| Common Stock Owned: ________ shares | ||
| XXXXXX, INC. | ||
| |
|
|
| By: | /s/ | |
|
Name:
Title:
|
||
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