EXHIBIT 10.3
FORM OF
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and entered into as of
August 29, 2006, by and among netGuru, Inc., a Delaware corporation ("netGuru"),
BPO Management Services, Inc., a Delaware corporation ("BPOMS") and ___________
(the "Stockholder"), an individual whose business address is c/o netGuru, Inc.,
00000 Xxxx Xxxxx Xxxxxxx, Xxxxx Xxxxx, XX 00000 and who is or may become the
holder or beneficial owner of Shares (as defined in Section 1(d)) of netGuru,
Inc.
RECITALS
A. As of the date of this Agreement, BPOMS and netGuru have
entered into an Agreement and Plan of Merger (as such agreement may hereafter be
amended from time to time in conformity with the provisions thereof (the "Merger
Agreement")), which provides for the merger of a wholly-owned subsidiary of
netGuru into BPOMS such that BPOMS survives as a wholly-owned subsidiary of
netGuru and the stockholders of BPOMS immediately prior to the merger become the
majority stockholders of netGuru after the merger (the "Merger").
B. As of the date of this Agreement, netGuru and Das Family
Holdings, a California corporation and affiliate of the Stockholder ("DFH"),
have entered into a Purchase Agreement (as such agreement may hereafter be
amended from time to time in conformity with the provisions thereof (the
"Purchase Agreement")), which provides for the sale by netGuru to DFH of (i) the
outstanding shares of capital stock of Research Engineers Ltd. owned by netGuru
and (ii) certain assets of netGuru specified in the Purchase Agreement, and the
assumption by DFH of certain obligations of netGuru specified in the Purchase
Agreement (the "Sale").
C. As an inducement and a condition to entering into the
Merger Agreement, BPOMS has requested that Stockholder agree, and Stockholder
has agreed (in the Stockholder's capacity as such), to enter into this Agreement
in order to facilitate the consummation of the Merger.
D. As an inducement and a condition to entering into the
Purchase Agreement, netGuru has requested that Stockholder agree, and
Stockholder has agreed (in the Stockholder's capacity as such), to enter into
this Agreement in order to facilitate the consummation of the Sale.
NOW, THEREFORE, intending to be legally bound, the parties hereto agree
as follows:
1. DEFINITIONS.
(a) For the purposes of this Agreement, capitalized terms that
are used but not defined herein shall have the respective meanings ascribed
thereto in the Merger Agreement or the Purchase Agreement (in the event of
conflicting definitions, the definitions in the Merger Agreement shall control).
(b) "Expiration Date" shall mean the earlier to occur of (i)
such date and time as the Merger Agreement and the Purchase Agreement shall have
been validly terminated pursuant to their terms, or (ii) such date and time as
both the Merger and the Sale shall become consummated in accordance with the
terms and conditions set forth in the Merger Agreement and the Purchase
Agreement, respectively.
(c) "Person" shall mean any individual, any corporation,
limited liability company, general or limited partnership, business trust,
unincorporated association or other business organization or entity, or any
governmental authority.
(d) "Shares" shall mean: (i) all securities of netGuru
(including all shares of preferred stock, common stock and all options, warrants
and other rights to acquire shares of Common Stock ("netGuru Options"))
beneficially owned by Stockholder as of the date of this Agreement, and (ii) all
additional securities of netGuru (including all additional options, warrants and
other rights to acquire shares of common stock) of which Stockholder acquires
beneficial ownership during the period commencing with the execution and
delivery of this Agreement until the Expiration Date.
(e) A Person shall be deemed to have effected a "Transfer" of
a security if such Person directly or indirectly (i) offers for sale, sells,
assigns, pledges, encumbers, grants an option with respect to, transfers or
otherwise disposes of such security or any interest therein, or (ii) enters into
an agreement, commitment or other arrangement providing for the sale of,
assignment of, pledge of, encumbrance of, granting of an option with respect to,
transfer of or disposition of such security or any interest therein.
2. RESTRICTION ON TRANSFER, PROXIES AND NON-INTERFERENCE; STOP
TRANSFER. Except as expressly contemplated by this Agreement, at all times
during the period commencing with the execution and delivery of this Agreement
and continuing until the Expiration Date, the Stockholder shall not (except as
may be specifically required by court order), directly or indirectly, (i) cause
or permit the Transfer of any of the Shares to be effected, or discuss,
negotiate or make any offer regarding any Transfer of any of the Shares, (ii)
grant any proxies or powers of attorney with respect to any of the Shares,
deposit any of the Shares into a voting trust or enter into a voting agreement
or other similar commitment or arrangement with respect to any of the Shares in
contravention of the obligations of Stockholder under this Agreement, (iii)
request that netGuru register the Transfer of any certificate or uncertificated
interest representing any of the Shares, or (iv) 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 respective obligations under this Agreement,
other than to a signatory under this Agreement in the case of (i), (ii) or
(iii). Stockholder hereby agrees that, in order to ensure compliance with the
restrictions referred to herein, netGuru may issue appropriate "stop transfer"
instructions to its transfer agent in respect of the Shares.
3. VOTING AGREEMENT. At any meeting of netGuru's stockholders called
with respect to the following, however called, and at every adjournment or
postponement thereof, Stockholder shall appear at such meeting, in person or by
proxy, or otherwise cause all of the Shares to be counted as present thereat for
purposes of establishing a quorum thereat, and Stockholder shall vote, or cause
to be voted (and on every action or approval by written consent of Stockholder
with respect to the following, act, or cause to be acted, by written consent)
with respect to all of the Shares that Stockholder is entitled to vote or as to
which Stockholder has the right to direct the voting, as of the relevant record
date:
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(a) in favor of the approval of the Merger, including the
issuance of securities of netGuru in connection therewith, the Sale, the
amendment of netGuru's certificate of incorporation to change its name to BPO
Management Services, Inc., and the amendment of netGuru's certificate of
incorporation to effect the reverse stock split contemplated by the Merger
Agreement;
(b) against the approval of any proposal that would result in
a breach by netGuru of the Merger Agreement or the Purchase Agreement; and
(c) against any proposal made in opposition to, or in
competition with, consummation of the Merger or the Sale and the other
transactions contemplated by the Merger Agreement or the Purchase Agreement.
Stockholder hereby waives any appraisal or other rights to dissent from
the Merger that Stockholder may have.
4. IRREVOCABLE PROXY. Concurrently with the execution of this
Agreement, Stockholder shall deliver to netGuru an irrevocable proxy in the form
attached hereto as Exhibit B (the "Proxy"), which shall be irrevocable to the
fullest extent permitted by applicable law, with respect to the Shares.
5. REPRESENTATIONS AND WARRANTIES. Stockholder hereby represents and
warrants to BPOMS and netGuru as follows:
(a) OWNERSHIP OF SHARES. All of the Shares owned by
Stockholder are listed on Exhibit A hereto. Stockholder is a beneficial owner
(as such term is defined under Rule 13(d)(3) promulgated under the Securities
Exchange Act of 1934, as amended, except for the inclusion of Shares that may be
acquired more than sixty (60) days from the date hereof) of all of the Shares.
Stockholder has sole and/or shared voting power and the sole and/or shared power
of disposition with respect to the Shares.
(b) POWER; BINDING AGREEMENT. Stockholder has the legal
capacity, power and authority to enter into and perform all of Stockholder's
obligations under this Agreement. The execution, delivery and performance of
this Agreement by Stockholder will not violate any agreement or 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 a valid and binding
agreement of Stockholder, enforceable against Stockholder in accordance with its
terms.
(c) NO CONSENTS. To his knowledge, the execution and delivery
of this Agreement by Stockholder does not, and the performance by Stockholder of
his obligations hereunder will not, require Stockholder to obtain any consent,
approval, authorization or permit of, or to make any filing with or notification
to, any Governmental Body.
6. NO OWNERSHIP INTEREST. Nothing contained in this Agreement shall be
deemed to vest in BPOMS or netGuru any direct or indirect ownership or incidence
of ownership of or with respect to any Shares. Except as provided in this
Agreement, all rights, ownership and economic benefits relating to the Shares
shall remain vested in and belong to Stockholder and the other stockholders.
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7. STOCKHOLDER NOTIFICATION OF ACQUISITION OF ADDITIONAL SHARES. At all
times during the period commencing with the execution and delivery of this
Agreement and continuing until the Expiration Date, Stockholder shall promptly
notify BPOMS and netGuru of the number of any additional shares of Common Stock
and the number and type of any other voting securities of netGuru acquired by
Stockholder, if any, after the date hereof.
8. NETGURU STOP TRANSFER INSTRUCTIONS. At all times commencing with the
execution and delivery of this Agreement and continuing until the Expiration
Date, netGuru shall not register the Transfer (by book-entry or otherwise) of
any certificate or uncertificated interest representing any of the Shares unless
such Transfer is made pursuant to and in compliance with the terms and
conditions of this Agreement. netGuru shall instruct its transfer agent (the
"Transfer Agent") not to Transfer, at any time commencing with the execution and
delivery of this Agreement and continuing until the Expiration Date, any
certificate or uncertificated interest representing any of the Shares unless and
until the Transfer Agent has received netGuru's consent to effect any such
Transfer.
9. TERMINATION. This Agreement shall terminate immediately and
automatically, without any action on the part of any party hereto, as of the
Expiration Date.
10. DIRECTORS AND OFFICERS. Notwithstanding anything in this Agreement
to the contrary, if Stockholder is a director or officer of netGuru, nothing
contained in this Agreement shall prohibit such director or officer from acting
in his capacity as such or from taking such action as a director or officer of
netGuru that may be required on the part of such person as a director or officer
of netGuru, including acting in compliance with the Merger Agreement and the
Purchase Agreement.
11. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement and the documents,
instruments and other agreements among the parties hereto as contemplated by or
referred to herein, including the Merger Agreement and the Purchase Agreement
and any other agreements referred to in the Merger Agreement and the Purchase
Agreement, constitute the entire agreement among the parties with respect to the
subject matter hereof and supersede all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof.
(b) CERTAIN EVENTS. This Agreement and the obligations
hereunder shall attach to all of the Shares and shall be binding upon any person
to whom legal or beneficial ownership of any of the Shares shall pass, whether
by operation of law or otherwise, except in the case of Shares Transferred in
connection with the payment of taxes. Notwithstanding any Transfer of any of the
Shares, the transferor shall remain liable for the performance of all
obligations of the transferor under this Agreement. Notwithstanding the
foregoing or anything to the contrary set forth in this Agreement, this
Agreement and the obligations hereunder shall not attach to any Shares that are
Transferred, and shall not be binding upon any person to whom legal or
beneficial ownership of any of the Shares shall pass, in any Transfer effected
by Stockholder pursuant to the last sentence of Section 2 of this Agreement.
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(c) ASSIGNMENT. No party may assign either this Agreement or
any of its rights, interests, or obligations hereunder without the prior written
approval of the other parties. Subject to the preceding sentence, this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and permitted assigns. Any purported assignment in
violation of this Section shall be void.
(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 and other communications hereunder
shall be in writing and shall be deemed duly given (i) on the date of delivery
if delivered personally, (ii) on the date of confirmation of receipt (or, the
first business day following such receipt if the date is not a business day) of
transmission by telecopy or facsimile, or (iii) on the date of confirmation of
receipt (or, the first business day following such receipt if the date is not a
business day) if delivered by a nationally recognized courier service. All
notices hereunder shall be delivered as set forth below, or pursuant to such
other instructions as may be designated in writing by the party to receive such
notice:
(i) If to Stockholder, to:
-------------------------
c/o netGuru, Inc.
00000 Xxxx Xxxxx Xxxxxxx
Xxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with copies to:
Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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(ii) if to netGuru, to:
netGuru, Inc.
00000 Xxxx Xxxxx Xxxx.
Xxxxx Xxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with copies to:
Xxxxx & Xxxxxx LLP
000 Xxxxx Xxxx., 00xx Xxxxx
Xxxxx Xxxx, XX 00000-0000
Attn: Xxxxxx Xxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(iii) if to BPOMS, to:
BPO Management Services, Inc.
00000 XxxXxxxxx Xxxx., Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With copies to:
Xxxxx Xxxx LLP
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(f) SEVERABILITY. In the event that any provision of this
Agreement or the application thereof, becomes or is declared by a court of
competent jurisdiction to be illegal, void or unenforceable, the remainder of
this Agreement will continue in full force and effect and the application of
such provision to other Persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further agree
to replace such void or unenforceable provision of this Agreement with a valid
and enforceable provision that will achieve, to the greatest extent possible,
the economic, business and other purposes of such void or unenforceable
provision.
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(g) 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.
(h) GOVERNING LAW; VENUE. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware, regardless
of the laws that might otherwise govern under applicable principles of conflicts
of law thereof. Each of parties irrevocably agrees that any legal action or
proceeding with respect to this Agreement or for recognition and enforcement of
any judgment in respect hereof brought by the other party hereto or its
successors or assigns may be brought and determined in the courts of the State
of Delaware, and each of parties hereby irrevocably submits with regard to any
such action or proceeding for itself and in respect to its property, generally
and unconditionally, to the nonexclusive jurisdiction of the aforesaid courts.
The parties hereby agree that mailing of process or other papers in connection
with any such action or proceeding in the manner provided in Section 11(e)
hereof or in such other manner as may be permitted by applicable law, shall be
valid and sufficient service thereof.
(i) OTHER REMEDIES; SPECIFIC PERFORMANCE.
(i) OTHER REMEDIES. Except as otherwise provided
herein, any and all remedies herein
expressly conferred upon a party will be deemed cumulative with and not
exclusive of any other remedy conferred hereby, or by law or equity upon such
party, and the exercise by a party of any one remedy will not preclude the
exercise of any other remedy. The parties hereto agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached.
(ii) SPECIFIC PERFORMANCE. It is accordingly agreed
that the parties shall be entitled to
seek an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any court of the United
States or any state having jurisdiction, this being in addition to any other
remedy to which they are entitled at law or in equity.
(j) WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE ACTIONS OF NETGURU, BPOMS, AND STOCKHOLDER IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.
(k) COUNTERPARTS. This Agreement may be executed in any number
of counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
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(l) FURTHER ASSURANCES. At the request of any party to another
party or parties to this Agreement, such other party or parties shall execute
and deliver such instruments or documents to evidence or further effectuate (but
not to enlarge) the respective rights and obligations of the parties and to
evidence and effectuate any termination of this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned have executed, or caused this
Agreement to be executed by a duly authorized officer, as of the date first
written above.
BPO MANAGEMENT SERVICES, INC.
By:
-----------------------------------
Name:
Title:
NETGURU, INC.
By:
-----------------------------------
Name:
Title:
STOCKHOLDER
---------------------------------------
Name
[SIGNATURE PAGE TO VOTING AGREEMENT]
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EXHIBIT A
BENEFICIAL OWNERSHIP OF COMPANY CAPITAL STOCK
-------------------------------- --------------- -------------------------------
Number of Shares of
No. of Common Stock Issuable
Shares of Upon Exercise of Outstanding
Stockholder's Name and Address Common Stock Options or Warrants
-------------------------------- --------------- -------------------------------
---------------------
c/o netGuru, Inc.
00000 Xxxx Xxxxx Xxxxxxx
Xxxxx Xxxxx, XX 00000
---------------------------------- --------------- -----------------------------
Except as described below, voting or dispositive power is held solely by
Stockholder:
________________________________________________________________________________
EXHIBIT B
IRREVOCABLE PROXY
The undersigned Stockholder (the "Stockholder") of netGuru, Inc., a
Delaware corporation ("netGuru"), hereby irrevocably (to the fullest extent
permitted by law) appoints each of Xxxxx X. Xxxxxx and Xxxxxxx Xxxxx, as the
sole and exclusive attorneys and proxies of the undersigned, with full power of
substitution and resubstitution, to vote and exercise all voting and related
rights (to the full extent that the undersigned is entitled to do so) with
respect to all of the shares of capital stock of netGuru that now are or
hereafter may be beneficially owned by the undersigned, and any and all other
shares or securities of netGuru issued or issuable in respect thereof on or
after the date hereof (collectively, the "Shares"), in accordance with the terms
of this Proxy. The Shares beneficially owned by Stockholder as of the date of
this Proxy are listed on the final page of this Proxy, along with the number(s)
of the stock certificate(s) that represent such Shares. Upon Stockholder's
execution of this Proxy, any and all prior proxies given by the undersigned with
respect to any Shares are hereby revoked and Stockholder agrees not to grant any
subsequent proxies with respect to the Shares until after the Expiration Date
(as defined below).
This Proxy is irrevocable (to the fullest extent permitted by law), is
coupled with an interest and is granted pursuant to that certain Voting
Agreement of even date herewith (the "Voting Agreement") by and among BPO
Management Services, Inc., a Delaware corporation ("BPOMS"), netGuru and the
undersigned Stockholder of netGuru, and is granted in consideration of (a) BPOMS
entering into that certain Agreement and Plan of Merger of even date herewith
(as it may hereafter be amended from time to time in accordance with the
provisions thereof, the "Merger Agreement") by and among BPOMS, netGuru and BPO
Acquisition Corp., a wholly-owned subsidiary of netGuru ("Merger Sub"), which
Agreement provides for the merger of Merger Sub with and into BPOMS such that
BPOMS survives as a wholly-owned subsidiary of netGuru (the "Merger), and (b)
netGuru entering into that certain Purchase Agreement of even date herewith (as
it may hereafter be amended from time to time in accordance with the provisions
thereof, the "Purchase Agreement") by and between netGuru and Das Family
Holdings, a California corporation ("DFH"), which Agreement provides for the
sale to DFH of (i) all of the outstanding shares of capital stock of Research
Engineers Ltd. owned by netGuru and (ii) certain assets of netGuru specified in
the Purchase Agreement, and the assumption by DFH of certain obligations of
netGuru specified in the Purchase Agreement (the "Sale"). As used in this Proxy,
the term "Expiration Date" shall mean the earlier to occur of (i) such date and
time as both the Merger Agreement and the Purchase Agreement shall have been
validly terminated pursuant to their terms, or (ii) such date and time as both
the Merger and the Sale shall be consummated in accordance with the terms and
conditions set forth in the Merger Agreement and the Purchase Agreement,
respectively.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by Stockholder, at any time prior to the Expiration
Date, to act as Stockholder's attorney and proxy to vote all of the Shares, and
to exercise all voting, consent and similar rights of the undersigned with
respect to all of the Shares (including, without limitation, the power to
execute and deliver written consents) at every annual or special meeting of
stockholders of netGuru (and at every adjournment or postponement thereof), and
in every written consent in lieu of such meeting:
(a) in favor of the approval of the Merger, including the
issuance of securities of netGuru in connection therewith, the Sale,
the amendment of netGuru's certificate of incorporation to change its
name to BPO Management Services, Inc., and the amendment of netGuru's
certificate of incorporation to effect the reverse stock split
contemplated by the Merger Agreement;(b) against the approval of any
proposal that would result in a breach by netGuru of the Merger
Agreement or the Purchase Agreement; and
(c) against any proposal made in opposition to, or in
competition with, consummation of the Merger or the Sale and the other
transactions contemplated by the Merger Agreement or the Purchase
Agreement.
The attorneys and proxies named above may not exercise this Proxy on
any other matter except as provided in clauses (a), (b) and (c) above.
Stockholder may vote the Shares on all other matters. Notwithstanding anything
in this Proxy to the contrary, if Stockholder is a director or officer of
netGuru, nothing contained in this Proxy shall prohibit such director or officer
from acting in his/her capacity as such or from taking such action as a director
or officer of netGuru that may be required on the part of such person as a
director or officer of netGuru, including acting in compliance with the Merger
Agreement and the Purchase Agreement.
Any obligation of Stockholder hereunder shall be binding upon the
successors and assigns of Stockholder.
This Proxy shall terminate and be of no further force and effect,
automatically upon the Expiration Date.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Stockholder has caused this Irrevocable Proxy to be
duly executed as of the day and year first above written.
STOCKHOLDER:
____________________________________
Name:
Address: c/o netGuru, Inc.
00000 Xxxx Xxxxx Xxxxxxx
Xxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Shares beneficially owned:
___________ Common Stock
___________ Common Stock issuable
upon exercise of outstanding options
or warrants
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