EXHIBIT 10.11
VOTING AGREEMENT
SUMX INC.
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement") is made and
entered into this 3rd day of December, 1998, by the undersigned holders (the
"Key Stockholders") of the common stock of Sumx Inc. (the "Company") and
Xxxxxxx & Xxxxxx Capital Corporation (the "Investor"), the purchaser of One
Million (1,000,000) Shares of Series A Preferred stock as of this same date.
WITNESSETH:
WHEREAS, the Key Stockholders are the beneficial owners of an
aggregate of one hundred percent (100%) of the Common Stock of the
Company; and
WHEREAS, the Company proposes to sell shares of its Series A
Preferred Stock (the "Series A Preferred Stock") to the Investor, pursuant to
the Series A Preferred Stock Purchase Agreement (the "Purchase
Agreement") of even date herewith (the "Financing");
WHEREAS, in connection with the consummation of the Financing,
the Key Stockholders and the Investor have agreed to provide for the future
voting of their shares of the Company's capital stock as set forth below;
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
SECTION 1. VOTING
1.1 Common Shares; Investor Shares.
(a)The Key Stockholders each agree to hold all shares of
voting capital stock of the Company registered in their respective names or
beneficially owned by them as of the date hereof, and any and all other
securities of the Company legally or beneficially acquired by each of the Key
Stockholders after the date hereof (hereinafter collectively referred to as the
"Common Shares"), subject to, and to vote the Common Shares in accordance
with, the provisions of this Agreement.
(b)The Investor agrees to hold all shares of voting capital
stock of the Company now owned or hereinafter acquired (including but not
limited to all shares of Common Stock issued upon conversion of the
Company's Series A Preferred Stock) registered in their respective names or
beneficially owned by them as of the date hereof (and any and all other
securities of the Company legally or beneficially acquired by each of the
Investors after the date hereof) (hereinafter collectively referred to as the
"Investor Shares") subject to, and to vote the Investor Shares in accordance
with, the provisions of this Agreement.
1.2 Voting.
(a)At any annual or special meeting called, or any other
action taken, for the purpose of electing to, or removing directors from, the
Company's Board of Directors, the Key Stockholders and the Investor agree
to vote all of their Common Shares and Investor Shares, respectively, during
the term of this Agreement so as always to cause the Board of Directors to
consist solely of the following three (3) designated nominees: Xxxxxxx X.
Xxxxxxx; Xxxxxx X. Xxxxxxx, Xx.; and W. Page Xxxxx (or such successor as
Investor may designate to replace W. Page Xxxxx, or such successor that
Summit Research, Inc. may designate to replace Xxxxxxx X. Xxxxxxx, or, in the
event of the death or incapacity of Xxxxxx X. Xxxxxxx, Xx., such representative
that the majority of holders of common shares previously owned by Xxxxxxx
may designate to replace Xxxxxxx).
(b)The Key Stockholders and Investor hereby agree that
none of the following actions may be taken without approval of more than
two thirds of the outstanding shares of the Company, with the holders of
Common Shares and Investor Shares voting together as a single class, or the
unanimous approval of the Board of Directors of the Company:
(i)the adoption of an amendment, restatement, or
modification of the Amended and Restated Certificate of Incorporation or By-
laws;
(ii)a sale of substantially all of the assets or
business of the Company or the merger or consolidation of the Company with
another Company if the merger or consolidation will result in the existing
stockholders of the Company holding less than 50% of the combined voting
power of the then existing securities of the surviving corporation;
(iii)any liquidation, dissolution, or winding up of
the Company;
(iv)any increase or decrease in the authorized
number of shares of common stock or preferred stock or any redemptions of
common stock or preferred stock; and
(v)any change in the number of directors
designated to the Board of Directors of the Company.
1.3 Legend.
(a)Concurrently with the execution of this Agreement,
there shall be imprinted or otherwise placed, on certificates representing the
Common Shares and the Investor Shares the following restrictive legend (the
"Legend"):
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
TERMS AND CONDITIONS OF A VOTING AGREEMENT WHICH PLACES
CERTAIN RESTRICTIONS ON THE VOTING OF THE SHARES REPRESENTED
HEREBY. ANY PERSON ACCEPTING ANY INTEREST IN SUCH SHARES SHALL
BE DEEMED TO AGREE TO AND SHALL BECOME BOUND BY ALL THE
PROVISIONS OF SUCH AGREEMENT. A COPY OF SUCH VOTING AGREEMENT
WILL BE FURNISHED TO THE RECORD HOLDER OF THIS CERTIFICATE,
WITHOUT CHARGE, UPON WRITTEN REQUEST TO SUMX INC .
(b)The Company agrees that, during the term of this
Agreement, it will not remove, and will not permit to be removed (upon
registration of transfer, reissuance or otherwise), the Legend from any such
certificate and will place or cause to be placed the Legend on any new
certificate issued to represent Common Shares or Investor Shares theretofore
represented by a certificate carrying the Legend.
1.4 Successors. The provisions of this Agreement shall be binding
upon the successors in interest to any of the Common Shares or Investor
Shares. The Company shall not permit the transfer of any of the Common
Shares or Investor Shares on its books or issue a new certificate representing
any of the Common Shares or Investor Shares unless and until the person to
whom such security is to be transferred shall have executed a written
Agreement, substantially in the form of this Agreement, pursuant to which
such person becomes a party to this Agreement and agrees to be bound by all
the provisions hereof as if such person were a Key Stockholder or Investor,
as applicable.
1.5 Other Rights. Except as provided by this Agreement, the
Investor Rights Agreement and the Series A Preferred Stock Purchase
Agreement, each Key Stockholder and Investor shall exercise the full rights
of a shareholder with respect to the Common Shares and the Investor Shares,
respectively.
SECTION 2. TERMINATION
2.1 This Agreement shall continue in full force and effect from the
date hereof through the earliest of the following dates, on which it shall
terminate in its entirety:
(a)the date of the closing of a firmly underwritten public
offering of the Company's Common Stock pursuant to a registration statement
filed with, and declared effective under the Securities Act of 1933, as
amended; or
(b)ten (10) years from the date of this Agreement; or
(c)the date as of which the parties hereto terminate this
Agreement by written consent of holders of ninety percent (90%) of the
Investor Shares and holders of ninety percent (90%) of the Common Shares.
SECTION 3. MISCELLANEOUS
3.1 Ownership. Each Key Stockholder represents and warrants
to the Investor, and the Investor represents and warrants to the Key
Stockholders, that (a) the stockholder now owns the Common Shares, free
and clear of liens or encumbrances, and has not, prior to or on the date of this
Agreement, executed or delivered any proxy or entered into any other voting
agreement or similar arrangement other than one which has expired or
terminated prior to the date hereof; and (b) such Key Stockholder has full
power and capacity to execute, deliver and perform this Agreement, which has
been duly executed and delivered by, and evidences the valid and binding
obligation of, such Key Stockholder enforceable in accordance with its terms.
3.2 Further Action. If and whenever the Common Shares are
sold, the Key Stockholders and Investor or the personal representative of the
Key Stockholders and Investor shall do all things and execute and deliver all
documents and make all transfers, and cause any transferee of the Common
Shares to do all things and execute and deliver all documents, as may be
necessary to consummate such sale consistent with this Agreement
3.3 Specific Performance. The parties hereto hereby declare that
it is impossible to measure in money the damages which will accrue to a party
hereto or to their heirs, personal representatives, or assigns by reason of a
failure to perform any of the obligations under this Agreement and agree that
the terms of this Agreement shall be specifically enforceable. If any party
hereto or his heirs, personal representatives, or assigns institutes any action
or proceeding to specifically enforce the provisions hereof, any person against
whom such action or proceeding is brought hereby waives the claim or
defense therein that such party or such personal representative has an
adequate remedy at law, and such person shall not offer in any such action or
proceeding the claim or defense that such remedy at law exists.
3.4 Governing Law. This Agreement, and the rights of the parties
hereto, shall be governed by and construed in accordance with the laws of the
State of Mississippi as such laws apply to agreements among Mississippi
residents made and to be performed entirely within the State of Mississippi.
3.5 Amendment. The Key Stockholders and Investor hereby
agree that this Agreement may be amended only with the approval of the
holders of more than ninety percent (90%) of the holders of the outstanding
shares of the Company common stock (of those holders who are parties to
this Agreement or who are bound by this Agreement as a successor in interest
to a party to this Agreement), with all holders voting together as a class,.
3.6 Severability. If any provision of this Agreement is held to be
invalid or unenforceable, the validity and enforceability of the remaining
provisions of this Agreement shall not be affected thereby.
3.7 Successors. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective heirs, successors,
assigns, administrators, executors and other legal representatives.
3.8 Additional Shares. In the event that subsequent to the date
of this Agreement any shares or other securities (other than any shares or
securities of another corporation issued to the Company's stockholders
pursuant to a plan of merger) are issued on, or in exchange for, any of the
Common Shares or Investor Shares by reason of any stock dividend, stock
split, consolidation of shares, reclassification or consolidation involving the
Company, such shares or securities shall be deemed to be Common Shares or
Investor Shares, as the case may be, for purposes of this Agreement.
3.9 Counterparts. This Agreement may be executed in one or
more counterparts, each of which will be deemed an original but all of which
together shall constitute one and the same agreement.
3.10 Waiver. No waivers of any breach of this Agreement extended
by any party hereto to any other party shall be construed as a waiver of any
rights or remedies of any other party hereto or with respect to any subsequent
breach.
3.11 Attorney's Fees. In the event that any suit or action is
instituted to enforce any provision in this Agreement, the prevailing party
shall be entitled to all costs and expenses of maintaining such suit or action,
including reasonable attorneys' fees.
3.12 Entire Agreement. This Agreement and the Exhibits hereto,
along with the Purchase Agreement and each of the Exhibits thereto,
constitute the full and entire understanding and agreement between the parties
with regard to the subjects hereof and thereof and no party shall be liable or
bound to any other in any manner by any representations, warranties,
covenants and agreements except as specifically set forth herein and therein.
[THIS SPACE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have executed this
VOTING AGREEMENT as of the date first above written.
KEY STOCKHOLDERS: INVESTOR:
XXXXXXX & XXXXXX CAPITAL CORPORATION
/s/ Xxxxxx X. Xxxxxxx, Xx. By: /s/ W. Page Xxxxx
______________________ ______________________
Xxxxxx X. Xxxxxxx, Xx. Its: President & CEO
SUMMIT RESEARCH, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
______________________
Its: President
