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EXHIBIT 99.4
VOTING AGREEMENT
This STOCKHOLDER VOTING AGREEMENT (the "Agreement") is entered into as
of November 25, 1998, by and among the undersigned stockholder(s) (collectively,
if more than one, "Stockholder") of Space Electronics, Inc., a Delaware
corporation ("SEi"), Xxxxxxx Technologies, Inc., a Delaware corporation
("Xxxxxxx"), and MT Acquisition Corporation, a Delaware corporation and a wholly
owned subsidiary of Xxxxxxx ("Merger Sub").
W I T N E S S E T H:
WHEREAS, concurrently with the execution of this Agreement, Xxxxxxx,
Merger Sub, SEi and certain shareholders of SEi are entering into an Agreement
and Plan of Merger (the "Merger Agreement") (capitalized terms used but not
defined herein shall have the same meaning assigned to such terms in the Merger
Agreement), pursuant to which SEi will become a wholly-owned subsidiary of
Xxxxxxx upon a merger (the "Merger") of Merger Sub with and into SEi;
WHEREAS, Stockholder owns, as of the date hereof, the shares of SEi
common stock, par value $.001 per share (the "SEi Common Stock"), as set forth
on Schedule A attached hereto (collectively, the "Existing Shares," together
with any shares of SEi Common Stock acquired after the date hereof and prior to
the termination hereof, hereinafter collectively referred to as the "Shares");
and
WHEREAS, Xxxxxxx and Merger Sub have entered into the Merger Agreement
in reliance on Stockholder's representations, warranties, covenants and
agreements hereunder.
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
PROXY
1.1 Proxy.
(a) With respect to the Merger Agreement or any other merger,
acquisition, or business combination involving SEi (an "Alternative
Transaction") for which approval of the stockholders of SEi is sought, and any
transactions contemplated thereby, Stockholder hereby irrevocably makes,
constitutes and appoints Xxxxxxx to act as Stockholder's true and lawful proxy
and attorney-in-fact in the name and on behalf of Stockholder, with full power
to appoint a substitute or substitutes. Stockholder further directs Xxxxxxx, and
Xxxxxxx hereby agrees, to vote all of the Shares which are entitled to vote at
any meeting of the stockholders of SEi (whether annual or special and whether or
not an adjourned meeting), or by written consent in the
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place and stead of Stockholder in favor of the Merger as set forth in the Merger
Agreement and against any Alternative Transaction. By giving this proxy
Stockholder hereby revokes any other proxy granted by Stockholder at any time
with respect to the Shares and no subsequent proxies will be given with respect
thereto by Stockholder.
(b) All power and authority hereby conferred is coupled with an
interest and is irrevocable, shall not be terminated by any act of Stockholder
or by operation of law, by lack of appropriate power or authority, or by the
occurrence of any other event or events and shall be binding upon all
beneficiaries, heirs at law, legatees, distributees, successors, assigns and
legal representatives of Stockholder. If after the execution of this Agreement,
Stockholder shall cease to have appropriate power or authority, or if any other
such event or events shall occur, Xxxxxxx is nevertheless authorized and
directed to vote the Shares in accordance with the terms of this Agreement as if
such lack of appropriate power or authority or other event or events had not
occurred and regardless of notice thereof.
(c) Stockholder agrees to use all good faith efforts to cause any
record owner of the Shares of which Stockholder is the beneficial owner to grant
to Xxxxxxx a proxy of the same effect as that contained herein. Stockholder
shall perform such further acts and execute such further documents as may be
required to vest in Xxxxxxx the sole power to vote the Shares in accordance
herewith during the term of the proxy granted herein.
(d) The proxy granted herein shall expire on the date of
termination of this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
2.1 Representations and Warranties of Stockholder. Stockholder
represents and warrants to Xxxxxxx and Merger Sub as follows:
(a) Ownership of Shares. On the date of this Agreement the
Existing Shares are all of the Shares currently beneficially owned by
Stockholder. Stockholder does not have any rights to acquire any additional
shares of SEi Common Stock other than as set forth on Schedule A attached
hereto. Other than as set forth on Schedule B attached hereto, Stockholder
currently has good, valid and marketable title to the Shares, free and clear of
all liens, encumbrances, restrictions, options, warrants, rights to purchase and
claims of every kind (other than the encumbrances created by this Agreement and
other than restrictions on transfer under applicable federal and state
securities laws).
(b) Power; Binding Agreement. Stockholder has the full legal
right, power and authority to enter into and perform all of Stockholder's
obligations under this Agreement. The execution and delivery of this Agreement
by Stockholder will not violate any other agreement to which Stockholder is a
party including, without limitation, any voting agreement,
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stockholders agreement or voting trust. This Agreement has been duly executed
and delivered by Stockholder and constitutes a legal, valid and binding
agreement of Stockholder, enforceable in accordance with its terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium and similar laws, now or hereafter in effect
affecting creditors' rights and remedies generally or general principles of
equity. Neither the execution or delivery of this Agreement nor the consummation
by Stockholder of the transactions contemplated hereby will (i) require any
consent or approval of or filing with any person or entity or (ii) constitute a
violation of, conflict with or constitute a default under, any contract,
commitment, agreement, understanding, arrangement or other restriction of any
kind to which Stockholder is a party or by which Stockholder is bound.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
XXXXXXX AND MERGER SUB
3.1 Representations and Warranties of Xxxxxxx and Merger Sub. Each of
Xxxxxxx and Merger Sub represents and warrants to Stockholder as follows:
(a) Power; Binding Agreement. Each of Xxxxxxx and Merger Sub has
full legal right, power and authority to enter into and perform all of its
obligations under this Agreement. The execution and delivery of this Agreement
by Xxxxxxx and Merger Sub will not violate any other agreement to which Xxxxxxx
or Merger Sub is a party. This Agreement has been duly executed and delivered by
each of Xxxxxxx and Merger Sub and constitutes a legal, valid and binding
agreement of Xxxxxxx and Merger Sub, enforceable in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium and similar laws, now or hereafter in effect,
affecting creditors' rights and remedies generally or general principles of
equity. Neither the execution of this Agreement nor the consummation by Xxxxxxx
or Merger Sub of the transactions contemplated hereby will (i) require any
consent or approval of or filing with any person or entity or (ii) constitute a
violation of, conflict with or constitute a default under, any contract,
commitment, agreement, understanding, arrangement or other restriction of any
kind to which Xxxxxxx or Merger Sub is a party or by which it is bound.
ARTICLE IV
TERMINATION
4.1 Termination. This Agreement shall terminate on the earlier of (i)
the date on which Xxxxxxx, Merger Sub and Stockholder mutually consent in
writing to terminate this Agreement, (ii) the Effective Time (as defined in the
Merger Agreement) on (iii) if the Merger is not completed before the later of
(x) January 31, 1999, (y) 30 business days after the Proxy Statement/Prospectus
(as defined in the Merger Agreement) is mailed to the SEi stockholders or
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(z) five business days after the expiration or termination of the waiting period
under the HSR Act (as defined in the Merger Agreement).
ARTICLE V
CERTAIN COVENANTS OF STOCKHOLDER
5.1 Certain Covenants of Stockholder.
(a) Except in accordance with the provisions of this Agreement,
Stockholder agrees, while this Agreement is in effect, not to, directly or
indirectly:
(i) Sell, transfer, pledge, encumber, assign or otherwise
dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, pledge, encumbrance,
assignment or other disposition of, any of the Shares; or
(ii) Grant any proxy, deposit any Shares into a voting
trust or enter into a voting agreement with respect to any of the
Shares.
(b) Stockholder agrees, while this Agreement is in effect, to
notify Xxxxxxx promptly of the number of any shares of SEi Common Stock acquired
by such Stockholder after the date hereof.
(c) Until such time as this Agreement is terminated, Stockholder
agrees to take any actions as reasonably requested by SEi, within his, her or
its power as are necessary or appropriate to enable SEi to satisfy the
conditions precedent set forth in the Merger Agreement to Xxxxxxx'x obligations
to consummate the Merger, and to use his, her or its best efforts to cause SEi
to satisfy such conditions precedent.
ARTICLE VI
MISCELLANEOUS
6.1 Notices. All notices or other communications required or permitted
hereunder shall be in writing (except as otherwise provided herein) and shall be
deemed duly given when received by delivery in person, by telecopy, telex or
telegram or by certified mail, postage prepaid, or by an overnight courier
service, addressed to Stockholder at the address(es) set forth on the signature
page hereof and to Xxxxxxx or Merger Sub at:
Xxxxxxx Technologies, Inc.
0000 Xxx Xxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
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With copies to:
Xxxxxxx & XxXxxxxx
000 X. Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx, Esq.
Telecopier: (000) 000-0000
6.2 Entire Agreement. This Agreement, together with the documents
expressly referred to herein, constitute the entire agreement among the parties
hereto with respect to the subject matter contained herein and supersede all
prior agreements and understandings among the parties with respect to such
subject matter.
6.3 Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors, assigns and
personal representatives, but neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto without the prior written consent of the other parties.
6.4 Governing Law. This Agreement, and all matters relating hereto,
shall be governed by, and construed in accordance with the laws of the State of
Delaware without giving effect to the principles of conflicts of laws thereof.
6.5 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same document.
6.6 Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, such provision shall be
interpreted to be only so broad as is enforceable.
6.7 Further Assurances. Each party hereto shall execute and deliver such
additional documents as may be necessary or desirable to consummate the
transactions contemplated by this Agreement.
6.8 Legal Expenses. In the event any legal proceeding is commenced by
any party to this Agreement to enforce or recover damages for any breach of the
provisions hereof, the prevailing party in such legal proceeding shall be
entitled to recover in such legal proceeding from the losing party such
prevailing party's costs and expenses incurred in connection with such legal
proceedings, including reasonable attorney's fees.
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6.9 Amendment and Modification. This Agreement may be amended, modified
and supplemented only by a written document executed by Xxxxxxx, Merger Sub and
Stockholder.
6.10 Specific Performance. The parties agree that in the event of a
breach of any provision of this Agreement, irreparable damage would occur, the
aggrieved party would be without an adequate remedy at law and damages would be
difficult to determine. The parties therefore agree that in the event of a
breach of any provision of this Agreement, the aggrieved party may elect to
institute and prosecute proceedings in any court of competent jurisdiction to
enforce specific performance or to enjoin the continuing breach of such
provision. By seeking or obtaining such relief, the aggrieved party will not be
precluded from seeking or obtaining any other relief to which it may be entitled
at law or in equity.
IN WITNESS WHEREOF, Xxxxxxx and Merger-Sub have caused this Agreement to
be executed by their duly authorized officers and Stockholder has executed this
Agreement, each as of the date set forth above.
"XXXXXXX"
XXXXXXX TECHNOLOGIES, INC.
By: /s/ XXXX XXXXXXXX
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Name: Xxxx Xxxxxxxx
Title: CFO
"MERGER SUB"
MT ACQUISITION CORPORATION
By: /s/ XXXX XXXXXXXX
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Name: Xxxx Xxxxxxxx
Title: VP
STOCKHOLDER(S):
Name of Stockholder: Xxxxxx X. Xxxxxxxxxx Name of Stockholder: Xxxxx X. Xxxxxxx
By: By:
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Name: Name:
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Title: Title:
------------------------------------ --------------------------------
Address: Address:
--------------------------------- ------------------------------
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Fax No.: Fax No.:
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6.9 Amendment and Modification. This Agreement may be amended, modified
and supplemented only by a written document executed by Xxxxxxx, Merger Sub and
Stockholder.
6.10 Specific Performance. The parties agree that in the event of a
breach of any provision of this Agreement, irreparable damage would occur, the
aggrieved party would be without an adequate remedy at law and damages would be
difficult to determine. The parties therefore agree that in the event of a
breach of any provision of this Agreement, the aggrieved party may elect to
institute and prosecute proceedings in any court of competent jurisdiction to
enforce specific performance or to enjoin the continuing breach of such
provision. By seeking or obtaining such relief, the aggrieved party will not be
precluded from seeking or obtaining any other relief to which it may be entitled
at law or in equity.
IN WITNESS WHEREOF, Xxxxxxx and Merger-Sub have caused this Agreement to
be executed by their duly authorized officers and Stockholder has executed this
Agreement, each as of the date set forth above.
"XXXXXXX"
XXXXXXX TECHNOLOGIES, INC.
By:
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Name: Xxxx Xxxxxxxx
Title: CFO
"MERGER SUB"
MT ACQUISITION CORPORATION
By:
-------------------------------------
Name: Xxxx Xxxxxxxx
Title: VP
STOCKHOLDER(S):
Name of Stockholder: Xxxxxx X. Xxxxxxxxxx Name of Stockholder: Xxxxx X. Xxxxxxx
By: /s/ XXXXXX X. XXXXXXXXXX By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxxxxx Name: Xxxxx X. Xxxxxxx
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Title: CEO Title: PRESIDENT
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Name of Stockholder: Xxxx X. Xxxxxxx Name of Stockholder: W. Xxx Xxxxxx, Ph.D.
By: /s/ XXXX X. XXXXXXX By:
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Name: Xxxx X. Xxxxxxx Name:
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Title: CFO Title:
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Fax No.: 000 000-0000
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Name of Stockholder: Xxxxx X. Xxxxxxxxxx Name of Stockholder: Full Circle Research, Inc.
By: /s/ XXXXX X. XXXXXXXXXX By:
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Name: Xxxxx X. Xxxxxxxxxx Name:
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Title: SPACE PRODUCTS BUSINESS UNIT MAN. Title:
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Fax No.: 000 000-0000
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Name of Stockholder: Xxxxx X. Xxxxxx Name of Stockholder: Xxxx Xxxxxx
By: By:
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Name: Name:
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Title: Title:
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Name of Stockholder: Xxxx X. Xxxxxxx Name of Stockholder: W. Xxx Xxxxxx, Ph.D.
By: By:
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Name: Name:
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Title: Title:
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Fax No.: Fax No.:
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Name of Stockholder: Xxxxx X. Xxxxxxxxxx Name of Stockholder: Full Circle Research, Inc.
By: By: /s/ XXXXX X. XXXXXX
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Name: Name: Xxxxx X. Xxxxxx
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Title: Title: President
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Fax No: Fax No.: 000 000-0000
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Name of Stockholder: Xxxxx X. Xxxxxx Name of Stockholder: Xxxx Xxxxxx
By: /s/ XXXXX X. XXXXXX By: /s/ XXXX XXXXXX
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Name: Xxxxx X. Xxxxxx Name: Xxxx X. Xxxxxx
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Title: Board-of-Director Title:
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Fax No.: 000 000-0000 Fax No.: 000 000-0000
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Schedule A to Stockholder Voting Agreement
1. Shares Owned Beneficially by Stockholder
Name: Xxxxx X. Xxxxxxxxxx 166,197
Record Holder: No. of Shares
Beneficial Holder:
(if different)
Name: W. Xxx Xxxxxx, Ph.D. 50,000
Record Holder: No. of Shares
Beneficial Holder:
(if different)
Name: Full Circle Research, Inc. 137,800
Record Holder: Full Circle Research, Inc. No. of Shares
Beneficial Holder: Xxxxx X. Xxxxxx
(if different)
Name: Xxxxx X. Xxxxxxx 528,983
Record Holder: No. of Shares
Beneficial Holder:
(if different)
Name: Xxxx X. Xxxxxxx 62,697
Record Holder: No. of Shares
Beneficial Holder:
(if different)
2. Stockholder's Options to Purchase Shares:
Xxxxx X. Xxxxxxx 65,000
Name of Option Holder No. of Shares
Xxxxxx X. Xxxxxxxxxx 80,000
Name of Option Holder No. of Shares
Xxxxx X. Xxxxxxxxxx 31,000
Name of Option Holder No. of Shares
Xxxx X. Xxxxxxx 45,000
Name of Option Holder No. of Shares
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Schedule B to Stockholder Voting Agreement
None
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