Exhibit H
IRREVOCABLE PROXY
AND
VOTING/LOCK-UP AGREEMENT
THIS IRREVOCABLE PROXY AND VOTING/LOCK-UP AGREEMENT, dated as of May 22,
2001 (this "Agreement"), is entered into by and between eXcelon Corporation, a
Delaware corporation ("Parent"), on the one hand, and the stockholder of Company
(as defined below) whose name is set forth on the signature page hereto, on the
other hand.
WITNESSETH:
WHEREAS, concurrently herewith, Parent, Comet Acquisition Corp., a wholly
owned subsidiary of Parent ("Merger Sub"), and C-bridge Internet Solutions, Inc.
("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, $.01 par value ("Common Stock") of Company 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, Parent 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 Parent that, at
any meeting of Company's stockholders, however called, and any adjournment or
postponement thereof, or in connection with any written consent of Company'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
Company that are required in furtherance of the transactions contemplated
thereby; provided that Stockholder shall not be required to vote for any action
that would decrease the number of shares of Parent 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 Company under the Merger Agreement or that
would prevent the consummation of the Merger; (iii) against: (A) any proposal by
Company 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 Company (except as contemplated by the Merger
Agreement); (C) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving Company 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 Company'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 Company; (E) any
amendment of Company'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 Company's management discretionary
authority to adjourn any meeting of Company'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 Company
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 Company 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 Parent 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 Company, 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 Company 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 Company 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 Company, 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 X.
Xxxxxxx and Xxxxx Xxxxxx (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 Company'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 Company'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 Parent's execution of the Merger Agreement, (ii) is
intended to secure Company'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 Company's stockholders and in any action by written consent of
Company'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. Parent 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 Company, including, without limitation, any vote that Stockholder may
make as a director of Company with respect to any matter presented to the Board
of Directors of Company.
4. OTHER COVENANTS, REPRESENTATIONS AND WARRANTIES. Stockholder hereby
represents and warrants to Parent 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 Company
beneficially owned by Stockholder. Except as set forth on Exhibit A, 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 PARENT. Stockholder understands and acknowledges
that Parent 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, Parent that
Stockholder shall not request that Company 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 Parent may, in its sole discretion, assign its rights and
obligations hereunder to any direct or indirect wholly owned subsidiary of
Parent.
(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: C-Bridge Internet Solutions, Inc.
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopier: ______________________
Attention: Vice President and General Counsel
and
Xxxxxx, Xxxx & Xxxxxxxx LLP
0000 Xxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxxxxxx Xxxxxxxxx
If to Parent: eXcelon Corporation
00 Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
Chief Executive Officer
with a copy to: Xxxxx, Xxxx & Xxxxx LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx, Xx., Esq
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.
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IN WITNESS WHEREOF, Parent and Stockholder have caused this
Irrevocable Proxy and Voting Agreement to be duly executed as of the day and
year first above written.
EXCELON CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name:
Title:
STOCKHOLDER:
By: /s/ Xxxxxxx Xxxx
---------------------------------
Name:
EXHIBIT A
IV
Number of Shares of
III Common Stock
I II Number of Shares of Issuable Upon
Name of Stockholder Address Common Stock Exercise of Options
Xxxxxxx Xxxx One Xxxxxxxxx Xx. 0 535,000
Xxxxxxxxxxxx, XX
00000
