VOTING AGREEMENT
Exhibit
2.2
THIS
VOTING AGREEMENT, dated as of September 10, 2007 (this “Agreement”), by
and between EOIR Holdings
LLC, a Delaware limited liability company (“Purchaser”), and
[SHAREHOLDER], a ___________ (the
“Shareholder”).
RECITALS:
WHEREAS,
Purchaser, E-OIR Technologies, Inc., a Virginia corporation (“Company”),
and Technest Holdings, Inc., a Nevada corporation (“Seller”), have
entered into a Stock Purchase Agreement, dated as of the date hereof (as the
same may be amended or supplemented, the “Purchase Agreement”), whereby
Purchaser is purchasing from Seller, and Seller is selling to Purchaser, all
of
the issued and outstanding shares of the capital stock of Company (the
“Transaction”), upon the terms, and subject to the conditions, set forth
in the Purchase Agreement. Capitalized terms used but not defined
herein shall have the meanings set forth in the Purchase Agreement.
WHEREAS,
the Shareholder is the record or beneficial owner of _______ shares of
[the common stock] and _______ shares of [the preferred
stock] of Seller (together with any shares of the common stock and
preferred stock of Seller acquired by the Shareholder after the date hereof
and
prior to the termination of this Agreement pursuant to Section 7 below, whether
upon the exercise of rights or otherwise, the “Shares”).
WHEREAS,
as an inducement and a condition to entering into the Purchase Agreement,
Purchaser has required that the Shareholder enter into this
Agreement.
WHEREAS,
the Shareholder and Purchaser desire to set forth their agreement with respect
to the voting of the Shares in connection with the Transaction upon the terms,
and subject to the conditions, set forth herein.
AGREEMENT:
NOW,
THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto agree as follows:
1. Agreement
to Vote. The Shareholder agrees that, from and after the date
hereof and until this Agreement shall have been terminated in accordance with
Section 7, at any meeting of the holders of either or both of the common stock
or preferred stock of Seller, however called, or in connection with any written
consent of the holders of either or both of the common stock or preferred stock
of Seller, the Shareholder shall vote (or cause to be voted) the Shares (a)
in
favor of: (i) the Transaction and the transactions provided for in
the Purchase Agreement and (ii) adoption and approval of the Purchase Agreement
and of each of the other actions contemplated by the Purchase Agreement and
(b)
against the following actions (other than the Transaction and the transactions
provided for in the Purchase Agreement): (i) any extraordinary
corporate
transaction,
such as a merger, consolidation, share exchange or other business combination
involving Seller or Company, (ii) any sale, lease or transfer of a material
amount of the assets of Seller or Company, or any reorganization,
recapitalization, dissolution or liquidation of Seller or Company, (iii) any
change in a majority or more of the Persons who constitute the Board of
Directors of Seller or Company, or (iv) any other action or agreement involving
Seller or Company, including any proposed amendment of the Company’s certificate
of incorporation or bylaws which action, agreement or amendment results in
the
breach in any material respect by Seller or Company of any representation,
warranty or covenant contained in the Purchase Agreement or which has the effect
of impeding, interfering with, delaying, postponing, or impairing the ability
of
Seller or Company to consummate the Transaction or the transactions provided
for
in the Purchase Agreement. Notwithstanding the foregoing, nothing
contained herein shall be construed to require the Shareholder to take any
action or fail to take any action that the Shareholder determines in good faith,
after consulting with legal counsel, would be in violation of any applicable
law
or legal duty. The Shareholder agrees that, from and after the date
hereof and until this Agreement shall have been terminated in accordance with
Section 7, the Shareholder shall not enter into any agreement or understanding
with any Person to vote the Shares in any manner inconsistent
herewith.
2. Restriction
on Transfer of Shares. Subject to Section 3, the Shareholder
agrees that it will not, prior to termination of this Agreement in accordance
with Section 7, convey or otherwise transfer or dispose of any of the Shares
or
any of the Shareholder’s rights to, or interests in, the Shares, including the
right to vote any of the Shares.
3. Permitted
Transfers. Section 2 shall not prohibit a transfer of the Shares
by the Shareholder to an affiliate, partner or member of the Shareholder or
as a
bona fide gift or gifts; provided, however, that a transfer
referred to in this sentence shall be permitted only if, as a precondition
to
such transfer, the transferee agrees in writing to be bound by all of the terms
of this Agreement.
4. Representations
and Warranties. The Shareholder represents and warrants that it
has the power to vote the Shares without restriction or limitation, that no
other Person has any right to vote the Shares by agreement, by operation of
law
or otherwise, and that the Shares are not subject to any restriction,
encumbrance or rights which would give any other Person the right or power
to
vote all or any of the Shares.
5. Acknowledgment. The
Shareholder acknowledges that Purchaser has agreed to enter into the Purchase
Agreement partially in reliance on the obligations herein of the Shareholder
and
that the Shareholder’s execution of this Agreement is a material inducement to
Purchaser’s execution of the Purchase Agreement. The Shareholder
further acknowledges that damages may not be an adequate remedy in the event
that the Shareholder breaches this Agreement, and that such a breach will cause
irreparable harm to Purchaser for which there will be no adequate remedy at
law. Accordingly, Purchaser shall be entitled, in addition to its
other remedies at law, to specific performance of this Agreement if the
Shareholder shall refuse to comply with its obligations
hereunder.
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6. Fiduciary
Duties. Notwithstanding
anything herein to the contrary, Shareholder makes no agreement or understanding
herein in his capacity as a director or officer of the Company or Seller, and
the agreements set forth herein shall in no way restrict Shareholder in the
exercise of his fiduciary duties as a director or officer of the Company or
Seller or limit or affect any actions taken by Shareholder in his capacity
as an
officer or director of the Company or Seller. Shareholder has
executed this Agreement solely in his capacity as the record and/or beneficial
holder of Shares.
7. Termination. This
Agreement shall terminate upon the earlier of (a) the time the requisite
percentage of Seller stockholders affirmatively vote in favor of the Sale
Proposal (as defined in the Purchase Agreement), either at the Seller
Stockholder Meeting or by written consent in lieu of the Seller Stockholder
Meeting or (b) the termination of the Purchase Agreement in accordance with
its
terms. This Agreement may be terminated at any time by mutual written consent
of
Shareholder and Purchaser.
8. Binding
on Successors. The terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the parties hereto and the
successors and assigns of the Shareholder and the successors and assigns of
Purchaser. No party hereto may assign any right or obligation
hereunder to any other Person, except upon the prior written consent of the
other party.
9. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Nevada, without regard to the
principles of conflicts of laws.
10. Amendments
and Modification. This Agreement may not be modified, amended,
altered or supplemented except upon the execution and delivery of a written
agreement executed by the parties hereto.
11. Entire
Agreement. The Purchase Agreement and this Agreement constitute
and contain the entire agreement and understanding of the parties with respect
to the subject matter hereof and supersede any and all prior negotiations,
correspondence, agreements, understandings, duties or obligations between the
parties respecting the subject matter hereof.
12. Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
[Signature
Pages Follow]
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IN
WITNESS WHEREOF, the parties hereto,
intending to be legally bound hereby, have executed or caused this Agreement
to
be executed in counterparts, all as of the day and year first above
written.
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PURCHASER:
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EOIR
HOLDINGS LLC
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By: EOIR
Holdings Management, LLC
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By:
_______________________
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Name: Xxxxxxxxxxx
X. Xxxxxx, Xx.
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Title: Managing
Member
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[Signature
Pages Continue on Following Page]
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SHAREHOLDER:
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[SHAREHOLDER]
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By:
__________________________
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Title:__________________________
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List
of Signatories to Voting Agreement:
Xxxx
X.
Xxxxxxx
Xxxxxx
Xxxxxx
ipPartners
Inc.
Southridge
Partners LP
Southshore
Capital Fund Ltd.
Southridge
Investment Group LLC
Signature Page to Voting Agreement
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