EXHIBIT 2
EXECUTION COPY
VOTING AGREEMENT
VOTING AGREEMENT, dated as of June 15, 2001 (this
"AGREEMENT"), by and among Automatic Data Processing, Inc., a Delaware
corporation ("PARENT"), and Xxxx X. Xxxxxx (the "SHAREHOLDER").
WHEREAS, Avert, Inc., a Colorado corporation (the "COMPANY"),
and Parent propose to enter into an Agreement and Plan of Merger, dated as of
the date hereof (the "MERGER AGREEMENT"), which provides for, among other
things, the merger of a wholly owned subsidiary of Parent with and into the
Company (the "MERGER");
WHEREAS, as of the date hereof, the Shareholder is a holder of
record or Beneficially Owns (as defined herein) shares of common stock, no par
value ("COMPANY COMMON STOCK"), of the Company;
WHEREAS, as a condition to the willingness of Parent to enter
into the Merger Agreement, Parent has required that the Shareholder agree, and
in order to induce Parent to enter into the Merger Agreement, the Shareholder
has agreed, to enter into this Agreement with respect to all of the shares of
Company Common Stock now held of record or Beneficially Owned and which may
hereafter be acquired by such Shareholder (collectively, the "SHARES"); and
WHEREAS, simultaneously with the execution and delivery of
this Agreement, the Shareholder has irrevocably granted Parent a Proxy (in the
form attached hereto as Exhibit A) to vote his shares in a manner consistent
with the covenants set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements contained herein, and intending to be legally
bound hereby, the parties hereto hereby agree as follows:
ARTICLE I.
CERTAIN DEFINITIONS
Section 1.1 General. Capitalized terms used and not
defined herein have the respective meanings ascribed to them in the Merger
Agreement.
Section 1.2 Beneficial Ownership. For purposes of this
Agreement, "BENEFICIALLY OWN" or "BENEFICIAL OWNERSHIP" with respect to any
securities shall mean "beneficial ownership" of such securities (as determined
pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), including pursuant to any agreement, arrangement or
understanding, whether or not in writing. Without duplicative counting of the
same securities by the same holder, securities Beneficially Owned by a
Shareholder shall include securities Beneficially Owned by all other Persons (as
defined in the Merger Agreement) with whom such Person would
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constitute a "group" within the meaning of Section 13(d) of the Exchange Act
other than parties to this Agreement.
ARTICLE II.
Section 2.1 VOTING AGREEMENT. The Shareholder hereby
irrevocably and unconditionally agrees that during the term of this Agreement as
specified in Section 5.1, at any meeting of the shareholders of the Company,
however called, and in any action by consent of the shareholders of the Company,
the Shareholder shall vote (or cause to be voted) the Shares held of record (to
the extent he has the right to vote such Shares) or Beneficially Owned (to the
extent he also has the right to vote such Shares) by him in favor of the Merger,
the Merger Agreement (as amended from time to time) and the transactions
contemplated by the Merger Agreement. The Shareholder acknowledges receipt and
review of a copy of the Merger Agreement.
Section 2.2 OTHER PROXIES REVOKED. Any proxies (other
than the Proxy granted to Parent on the date hereof) heretofore given in respect
of the Shareholder's Shares are not irrevocable and all such proxies are hereby
revoked.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Shareholder hereby represents and warrants to the Parent
as follows:
Section 3.1 AUTHORITY RELATIVE TO THIS AGREEMENT. The
Shareholder has all necessary power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by the Shareholder and, assuming the due authorization,
execution and delivery by the other parties hereto, constitutes a legal, valid
and binding obligation of the Shareholder, enforceable against the Shareholder
in accordance with its terms, except to the extent enforceability may be limited
by bankruptcy, insolvency, moratorium or other laws affecting creditors' rights
generally or by general principles governing the availability of equitable
remedies.
Section 3.2 NO CONFLICT. (a) The execution and delivery
of this Agreement by the Shareholder does not, and the performance of this
Agreement by the Shareholder shall not, (i) conflict with or violate any
agreement, arrangement, law, rule, regulation, order, judgment or decree to
which the Shareholder is a party or by which the Shareholder (or the Shares held
of record or Beneficially Owned by the Shareholder) is bound or affected or (ii)
result in any breach of or constitute a default (or an event that with notice or
lapse or time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, or result in
the creation of a lien or encumbrance on any of the Shares held of record or
Beneficially Owned by the Shareholder pursuant to any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which the Shareholder is a party or by which the
Shareholder (or the Shares held of record or
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Beneficially Owned by the Shareholder) is bound or affected, except, in the case
of clauses (i) and (ii) of this Section 3.2, for any such conflicts, violations,
breaches, defaults or other occurrences which would not prevent or delay the
performance by such Shareholder of its obligations under this Agreement.
(b) The execution and delivery of this Agreement
by the Shareholder does not, and the performance of this Agreement by the
Shareholder shall not, require any consent, approval, authorization or permit
of, or filing with or notification to, any governmental entity except for
applicable requirements, if any, of the Exchange Act, and except where the
failure to obtain such consents, approvals, authorizations or permits, or to
make such filings or notifications, would not prevent or delay the performance
by the Shareholder of his obligations under this Agreement.
Section 3.3 TITLE TO THE SHARES. As of the date hereof,
the Shareholder is the record or Beneficial Owner of the Shares listed on
Schedule 1 hereto. The Shares listed on Schedule 1 hereto are all the securities
of the Company either held of record or Beneficially Owned by the Shareholder.
The Shareholder has not appointed or granted any proxy, which appointment or
grant is still effective, with respect to the Shares held of record or
Beneficially Owned by the Shareholder. The Shareholder has the right to vote or
cause to be voted each of the Shares listed on Schedule 1 hereto and the Shares
listed on Schedule 1 hereto are owned free and clear of all security interests,
liens, powers of attorney, proxies, claims, pledges, options, rights of first
refusal, agreements, limitations on the Shareholder's voting rights, charges and
other encumbrances of any nature whatsoever, except for those restrictions
arising hereunder or under the Proxy delivered by the Shareholder to the Parent
on the date hereof.
ARTICLE IV.
COVENANTS OF THE SHAREHOLDER
Section 4.1 NO INCONSISTENT AGREEMENT OR ACTION. The
Shareholder hereby covenants and agrees that, except as contemplated by this
Agreement, and the Merger Agreement, the Shareholder shall not, or permit any
Person under such Shareholder's control to, enter into any voting agreement or
grant a proxy or power of attorney with respect to the Shares held of record or
Beneficially Owned by the Shareholder or form any "group" for purposes of the
Exchange Act or the rules promulgated thereunder, in each such case, which is
inconsistent with this Agreement. Except as set forth in the Merger Agreement,
the Shareholder shall not (i) solicit, initiate, encourage (including by way of
furnishing information or assistance) or take any other action to facilitate,
any inquiry or the making of any proposal which constitutes, or may reasonably
be expected to lead to, any Acquisition Proposals (as defined in the Merger
Agreement) or agree to or endorse any Acquisition Proposal or (ii) propose,
enter into or participate in any discussions or negotiations regarding any of
the foregoing, or furnish to any other Person any information with respect to
its business, properties or assets or any of the foregoing, or otherwise
cooperate in any way with, or assist or participate in, facilitate or encourage,
any effort or attempt by any other Person to do or seek any of the foregoing.
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Section 4.2 TRANSFER OF TITLE. The Shareholder hereby
covenants and agrees that the Shareholder shall not (i) tender any Shares, (ii)
sell, assign or transfer record or Beneficial Ownership of any of the Shares, or
(iii) further pledge, hypothecate or otherwise dispose of any Shares; provided,
that the Shareholder may transfer record ownership of any of the Shares so long
as the Shareholder maintains Beneficial Ownership of such Shares (including,
without limitation, the unfettered right to vote such Shares in the manner set
forth in Section 2.1).
ARTICLE V.
MISCELLANEOUS
Section 5.1 TERMINATION. This Agreement shall be
effective as of the date of this Agreement and shall terminate upon the earlier
to occur of (i) the closing of the transactions contemplated by the Merger
Agreement and (ii) the date upon which the Merger Agreement is terminated in
accordance with its terms; PROVIDE, HOWEVER, that if the Merger Agreement is
terminated pursuant to any of Sections 7.1(d), (e) or (f) of the Merger
Agreement and at the time of such termination the Termination Amount either is
or may become payable pursuant to Section 7.5(b) of the Merger Agreement, this
Agreement shall terminate on the date which is six months after the date of
termination of the Merger Agreement.
Section 5.2 ADDITIONAL SHARES. If, after the date
hereof, the Shareholder acquires the right to vote any additional shares of
Company Common Stock (any such shares shall be referred to herein as "ADDITIONAL
SHARES"), including, without limitation, upon exercise of any option, warrant or
right to acquire shares of Company Common Stock or through any stock dividend or
stock split, the provisions of this Agreement applicable to the Shares shall be
applicable to such Additional Shares as if such Additional Shares had been
Shares as of the date hereof. The provisions of the immediately preceding
sentence shall be effective with respect to Additional Shares without action by
any Person immediately upon the acquisition by the Shareholder of record or
Beneficial Ownership of such Additional Shares.
Section 5.3 SPECIFIC PERFORMANCE. The parties hereto
agree that irreparable damage would occur in the event any provision of this
Agreement was not performed in accordance with the terms hereof and that the
parties shall be entitled to specific performance of the terms hereof, in
addition to any other remedy at law or in equity.
Section 5.4 ENTIRE AGREEMENT. This Agreement constitutes
the entire agreement between Parent and the Shareholders with respect to the
subject matter hereof and supersedes all prior agreements and understandings,
both written and oral, between Parent and the Shareholders with respect to the
subject matter hereof.
Section 5.5 AMENDMENT. This Agreement may not be amended
except by an instrument in writing signed by the parties hereto.
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Section 5.6 SEVERABILITY. If any term or other provision
of this Agreement is invalid, illegal or incapable of being enforced by any rule
or law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of this Agreement is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereby 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.
Section 5.7 GOVERNING LAW. 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 NEW YORK WITHOUT
REGARD TO THE CONFLICT OF LAW PRINCIPLES, EXCEPT TO THE EXTENT THAT THE LAWS OF
THE STATE OF COLORADO MANDATORILY APPLY.
Section 5.8 COUNTERPARTS. This Agreement may be executed
in one or more counterparts, each of which shall be an original and all of
which, when taken together, shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the Shareholders and Parent have caused
this Agreement to be duly executed on the date hereof.
AUTOMATIC DATA PROCESSING, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
EXHIBIT A
IRREVOCABLE PROXY
The undersigned shareholder of Avert, Inc., a Colorado
corporation ("COMPANY") hereby appoints Automatic Data Processing, Inc., a
Delaware corporation ("PARENT"), as proxy for the undersigned, with full power
of substitution, to attend any annual or special meeting of the shareholders of
the Company (including any and all adjournments and postponements thereof), and
in respect of any written consent in lieu of such meeting, held or made for the
purpose of considering or voting upon the matters described in Section 2.1 of
the Voting Agreement, dated the date hereof, among Parent, the undersigned and
certain other shareholders of the Company (the "AGREEMENT"), in accordance with
such Section 2.1, and to cast all votes that the undersigned is entitled to cast
at such a meeting (or in connection with such written consent) with respect to
all of the undersigned's Shares (as defined in the Agreement) with respect to
the matters described in Section 2.1 of the Agreement. The undersigned hereby
revokes any proxy heretofore given with respect to such a meeting (or written
consent in lieu thereof) or with respect to such a vote cast. The undersigned
affirms that this proxy is a power coupled with an interest and shall be
irrevocable. The undersigned shall take such further action or execute such
other instruments as may be necessary to effectuate the intent of this
irrevocable proxy.
Please sign exactly as name appears on the /s/ Xxxx X. Xxxxxx
records of the Company and date. ----------------------------------
Xxxx X. Xxxxxx
Dated: June 15, 2001