EXHIBIT 10.32
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement") is dated as of June 20, 2003,
between Alonim Investments Inc., a corporation incorporated under the laws of
Canada ("Alonim"), and Sipex Corporation, a Massachusetts corporation (the
"Company"). Except as otherwise provided herein, capitalized terms that are used
but not otherwise defined herein shall have the meaning assigned to such terms
in the Securities Purchase Agreement (as defined below).
WHEREAS, contemporaneously with the execution of this Agreement, Alonim
and the Company are entering into a Securities Purchase Agreement and
Registration and Standstill Agreement, each dated May 27, 2003 (respectively,
the "Securities Purchase Agreement" and "Registration and Standstill
Agreement"), providing for the issuance and sale by the Company, and purchase by
Alonim, of a 1.5% Convertible Secured Note Due June 30, 2007 in an aggregate
amount equal to $10,560,000 (the "2003 Note") convertible into shares of the
Company's Common Stock, and setting forth certain representations, warranties,
covenants and agreements of the parties thereto in connection therewith; and
WHEREAS, in order to induce the Company to enter into the Securities
Purchase Agreement and the Registration and Standstill Agreement, Alonim is
entering into this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which is hereby acknowledged, the parties hereto
agree as follows:
1. Irrevocable Proxy.
Concurrently with the execution of this Agreement, Alonim agrees to
deliver to the Company a proxy in the form attached hereto as Exhibit A with
respect to any and all Conversion Shares (the "Proxy"), which shall remain in
effect until the first anniversary of the last exercise by Alonim of the
Conversion Rights (as defined in the 2003 Note).
2. Representations of Alonim.
Alonim has full power and authority to enter into, execute and deliver this
Agreement and to perform Alonim's obligations hereunder. Alonim further
represents and warrants to the Company that the execution and delivery of this
Agreement does not and the performance of this Agreement by Alonim will not: (a)
conflict with or violate any law, rule, regulation, order, decree or judgment
applicable to Alonim or by which it or any of its assets is or may be bound or
affected; (b) result in or constitute (with or without notice or lapse of time)
any breach of or default under, or give to any other individual or entity (with
or without notice or lapse of time) any right of termination, amendment,
acceleration or cancellation of, or result in (with or without notice or lapse
of time) the creation of any encumbrance or restriction on any of the Conversion
Shares pursuant to, any contract to which Alonim is a party or by which Alonim
or any of Alonim's "affiliates" or "associates" (as those terms are defined in
Rule 405 promulgated under
the 0000 Xxx) or assets is or may be bound or affected; or (c) require any
consent or approval of any other person.
3. Transfer and Encumbrance.
Alonim agrees that, while this Agreement is in effect, Alonim shall not
transfer, sell, offer, exchange, pledge or otherwise dispose of or encumber (or
enter into an agreement to do any of the foregoing) any of the Conversion
Shares, other than as permitted in accordance with the Securities Purchase
Agreement and Registration and Standstill Agreement, or as agreed to in writing
by the Company.
4. Changes in Capitalization of the Company.
In the event of a stock dividend or distribution, or any change in
Company Common Stock by reason of any stock dividend or distribution, or any
change in Company Common Stock by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like, the term
"Conversion Shares" shall be deemed to refer to and include the Conversion
Shares as well as all such stock dividends and distributions and any securities
into which or for which any or all of the Conversion Shares may be changed or
exchanged or which are received in such transaction.
5. Legending of Conversion Shares; Other Actions.
If so requested by the Company, Alonim agrees that the Conversion
Shares shall bear a legend stating that they are subject to this Agreement. From
time to time and without additional consideration, Alonim shall execute and
deliver, or cause to be executed and delivered, such proxies, consents and other
instruments, and shall take such further actions, as the Company may reasonably
request for the purpose of carrying out and furthering the intent of this
Agreement.
6. Specific Performance.
The parties 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. It is accordingly agreed that the parties shall be
entitled to specific performance of the terms hereof, this being in addition to
any other remedy to which they are entitled at law or in equity.
7. Entire Agreement; Amendment; Waiver.
This Agreement, the Securities Purchase Agreement and the Registration and
Standstill Agreement and the documents referenced herein or therein supersede
all prior agreements, written or oral, among the parties hereto with respect to
the subject matter hereof and thereof and contain the entire agreement among the
parties with respect to the subject matter hereof and thereof. This Agreement
may not be amended, supplemented or modified, and no provisions hereof may be
modified or waived, except by an instrument in writing signed by the parties
hereto. No waiver of any provisions hereof by any party shall be deemed a waiver
of any other
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provisions hereof by any such party, nor shall any such waiver be deemed a
continuing waiver of any provision hereof by such party.
8. Notices.
All notices, requests, claims, demands or other communications
hereunder shall be in writing and shall be deemed given when delivered
personally, upon receipt of a transmission confirmation if sent by fax or like
transmission and on the next business day when sent by Federal Express, Express
Mail or other reputable overnight courier service to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
If to the Company:
Sipex Corporation
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxx, CFO
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Day
If to Alonim:
Alonim Investments Inc.
0000 XxXxxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxx, Xxxxxx
X0X 0X0
Facsimile: (000) 000-0000
Attention: Xxx Xxxxxxxx, Esq.
with a copy to:
Future Electronics Inc.
000 Xxxxx Xxxxxxxxx
Xxxxx Xxxxxx, Xxxxxx, Xxxxxx
X0X 0X0
Facsimile: (000) 000-0000
Attention: Xxx Xxxxxxxx, Esq.
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9. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California, without giving
effect to any choice or conflict of law provision or rule that would cause the
application of the laws of any other jurisdiction.
(b) Severability. In the event that any provision of the
Agreement is held to be illegal, invalid or unenforceable in a final,
unappealable order or judgment (each such provision, an "invalid provision"),
then such invalid provision shall be severed from this Agreement and shall be
inoperative and the parties promptly shall negotiate in good faith a lawful,
valid and enforceable provision that is as similar to the invalid provision as
may be possible and that preserves the original intentions and economic
positions of the parties as set forth herein to the maximum extent feasible,
while the remaining provisions of this Agreement shall remain binding on the
parties hereto. Without limiting the generality of the foregoing sentence, in
the event a change in any applicable law, rule or regulation makes it unlawful
for a party to comply with any of its obligations hereunder, the parties shall
negotiate in good faith a modification to such obligation to the extent
necessary to comply with such law, rule or regulation that is as similar in
terms to the original obligation as may be possible while preserving the
original intentions and economic positions of the parties as set forth herein to
the maximum extent feasible.
(c) Counterpart. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
(d) Termination. This Agreement shall terminate upon the
earlier of (i) such time as all Conversion Rights (as defined in the 2003 Note)
are no longer capable of vesting pursuant to the 2003 Note; (ii) the repayment
in full of the principal amount of the 2003 Note by the Company, (iii) the
expiration of the Proxy pursuant to Section 1 hereof; or (iv) upon the mutual
consent of the Company and Alonim.
(e) Headings; Recitals. All Section headings and the recitals
herein are for convenience of reference only and are not part of this Agreement,
and no construction or reference shall be derived therefrom.
(f) Third Party Beneficiaries. Nothing in this Agreement,
express or implied, is intended to confer upon any third party any rights or
remedies of any nature whatsoever under or by reason of this Agreement.
[Signatures on Following Page]
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IN WITNESS WHEREOF, the parties have caused this Voting Agreement to be
duly executed as of the date first written above.
SIPEX CORPORATION
By: /s/ Walid Maghribi
-----------------------------
Name: Walid Maghribi
Title: President & CEO
ALONIM INVESTMENTS INC.
By: /s/ Xxx Xxxxxxxx
-----------------------------
Name: Xxx Xxxxxxxx
Title: Attorney
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EXHIBIT A
IRREVOCABLE PROXY
The undersigned stockholder of Sipex Corporation, a Massachusetts
corporation (the "COMPANY"), hereby irrevocably appoints the directors on the
Board of Directors of the Company, as the sole and exclusive attorneys-in-fact
and proxies of the undersigned, with full power of substitution and
resubstitution, to the full extent of the undersigned's rights with respect to
the voting of the Conversion Shares (as defined in the Voting Agreement of even
date between the Company and the stockholder (the "VOTING AGREEMENT") until such
time as the Voting Agreement shall be terminated in accordance with its terms.
Upon the execution hereof, all prior proxies given by the undersigned with
respect to the Conversion Shares and any and all other shares or securities
issued or issuable in respect thereof on or after the date hereof which would in
any manner be inconsistent with the understandings and obligations under the
Voting Agreement are hereby revoked and no subsequent proxies will be given
during the life of this proxy which would in any manner be inconsistent with the
Voting Agreement and this proxy.
This proxy is irrevocable, is granted pursuant to the Voting Agreement
and is granted in consideration of Company entering into the Securities Purchase
Agreement and the Registration and Standstill Agreement (each as defined in the
Voting Agreement). The attorneys-in-fact and proxies named above will be
empowered at any time prior to the termination of the Voting Agreement to
exercise all voting rights (including, without limitation, the power to execute
and deliver written consents with respect to the Conversion Shares) of the
undersigned at every annual, special or adjourned or postponed meeting of the
Company's stockholders, and in every written consent of stockholders in lieu of
such a meeting, or otherwise. Such voting rights shall be exercised by the
directors on the Board of Directors in the following manner: (i) by voting the
Conversion Shares with the majority of votes of the holders of Common Stock of
the Company, or the holders of Preferred and Common Stock of the Company, in all
cases including votes of the undersigned and the undersigned's "affiliates" and
"associates" (as those terms are defined in Rule 405 promulgated under the 0000
Xxx) or (ii) by abstaining from voting the Conversion Shares, if so instructed
by Alonim at or prior to the meeting or in connection with a written consent of
stockholders in lieu of such a meeting, or otherwise.
This proxy shall automatically terminate upon the termination of the
Voting Agreement.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
Dated: May , 2003
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STOCKHOLDER:
Alonim Investments Inc.
By:
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Name:
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Title:
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