Exhibit 9
VOTING AGREEMENT
VOTING AGREEMENT (this "AGREEMENT"), dated as of December 20, 2002, by and
among Xxxxxxx Acquisition Corp. ("HAC"), a Delaware corporation and a
wholly-owned subsidiary of Xxxxxxx I, Inc., a Florida corporation ("Xxxxxxx"),
and the entity listed on the Signature Page hereto (the "Stockholders").
WHEREAS, the Stockholders are, as of the date hereof, have voting power
over the number of shares of common stock, par value $0.01 per share ("Company
Common Stock"), of PartsBase, Inc., a Delaware corporation (the "Company"), set
forth on the Signature Page hereto;
WHEREAS, Xxxxxxx and the Company have entered into an Agreement and Plan of
Merger, dated as of August 26, 2002 (the "Merger Agreement"; capitalized terms
used but not defined herein have the meanings ascribed to such terms in the
Merger Agreement), which provides for the merger (the "Merger") of HAC with and
into the Company upon the terms and subject to the conditions set forth in the
Merger Agreement;
WHEREAS, pursuant to the Merger Agreement each share of Company Common
Stock, owned by the stockholders of the Company as of the Effective Time of the
Merger will be converted into the right to receive cash, as set forth therein;
and the Board of Directors of the Company has approved the Merger and the other
transactions contemplated in the Merger Agreement and is recommending that the
Company's stockholders approve the Merger; and
WHEREAS, as a condition to the willingness of Xxxxxxx to increase the
Merger consideration to $1.50 per share to induce, the Stockholders have agreed
to enter into this Agreement.
NOW, THEREFORE, in consideration of the execution and delivery by Xxxxxxx
of the Merger Agreement and the foregoing and the mutual representations,
warranties, covenants and agreements set forth herein and therein, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Representations, Warranties and Covenants of the Stockholders.
The Stockholders (i) have voting power over the beneficial owners the shares of
Company Common Stock and the options and warrants to purchase shares of Company
Common Stock indicated on the Signature Page hereto, free and clear of any
liens, claims, options, rights of first refusal, co-sale rights, charges or
other encumbrances that, in each case, would deprive Xxxxxxx of the benefits of
this Agreement (other than any rights of repurchase held by the Company); (ii)
do not have voting power over the number of shares of Company Common Stock held
for clients in managed accounts indicated on the signature page hereto; (iii) do
not have voting power over any securities of the Company other than the shares
of Company Common Stock and options and warrants to purchase shares of Company
Common Stock indicated on the Signature Page hereto; (iv) have full power and
authority to make, enter into and carry out the terms of this Agreement and the
proxy contained herein; and (iv) will not, and will not permit any "affiliates"
to: (1) solicit proxies or become a "participant" in a "solicitation" (as such
terms are defined in Regulation 14A under the Exchange Act of 1934, as amended
(the "Exchange Act")) with respect to any action or agreement which would
impede, frustrate, interfere with or prevent the Merger, including any other
Acquisition Proposal, or otherwise encourage or assist any party in taking or
planning any action that would compete with, restrain or otherwise serve to
interfere with or inhibit the timely consummation of the Merger in accordance
with the terms of the Merger Agreement; (2) initiate a stockholder's vote or
action by written consent of the Company stockholders with respect to any action
or agreement which would impede, interfere with or prevent the Merger, including
any other Acquisition Proposal; or (3) become a member of a "group" (as such
term is used in Section 13(d) of the Exchange Act) with respect to any voting
securities of the Company with respect to any action or agreement which would
impede, interfere with or prevent the Merger, including any other Acquisition
Proposal except for a group with Xxxxxxx.
SECTION 2. Agreement Not to Transfer Shares.
(a) Prior to the termination of this Agreement, except as otherwise
provided herein, the Stockholders shall not: (i) transfer (which term shall
include, without limitation, for the purposes of this Agreement, any sale, gift,
pledge or other disposition), or consent to any transfer of, any or all of the
Shares (as defined in Section 2(b)); (ii) enter into any contract, option or
other agreement or understanding with respect to any transfer of any or all of
the Shares or any interest therein; (iii) grant any proxy, power-of-attorney or
other authorization or consent in or with respect to the Shares; or (iv) deposit
the Shares into a voting trust or enter into a voting agreement or arrangement
with respect to the Shares.
(b) "SHARES" shall mean: (i) all securities of the Company (including all
shares of Company Common Stock, Preferred Stock and all options, warrants and
other rights to acquire such securities) which the Stockholders having voting
power as of the date of this Agreement; and (ii) all additional securities of
the Company (including all shares of Company Common Stock and all additional
options, warrants and other rights to acquire such securities) of which the
Stockholders acquire voting power during the period from the date of this
Agreement through the Effective Time. In the event of a stock dividend or
distribution, or any change in Company Common Stock or Preferred 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
securities into which or for which any or all of the Shares may be changed or
exchanged or which are received in such transaction.
SECTION 3. Agreement to Vote Shares; Grant of Irrevocable Proxy;
Appointment of Proxy.
(a) Prior to the termination of this Agreement, except as provided herein,
the Stockholders shall vote Stockholders' Shares, in connection with any meeting
or action by written consent of the stockholders of the Company (i) in favor of
the Merger, and (ii) against any action or agreement which would impede,
frustrate, interfere with or prevent the Merger, including any other Acquisition
Proposal. Stockholders agree not, directly or indirectly, to solicit or initiate
any offer from any party concerning the possible disposition of all or any
substantial portion of the Company's business, assets or capital stock.
(b) Until the termination of this Agreement, the Stockholders hereby
irrevocably grant to, and appoint, Xxxxxxx and any nominee thereof, its proxy
and attorney-in-fact (with full power of substitution), for and in the name,
place, and stead of the Stockholders, to vote Stockholders' Shares, or grant a
consent or approval in respect of Stockholders' Shares, in connection with any
meeting or action by written consent of the stockholders of the Company (i) in
favor of the Merger, and (ii) against any action or agreement which would
impede, interfere with or prevent the Merger, including any other Acquisition
Proposal.
(c) The Stockholders represent that any proxies heretofore given in respect
of the Shares are not irrevocable, and that such proxies are hereby revoked.
(d) Subject to Section 5 hereof, the Stockholders hereby affirm that the
proxy set forth in this Section 3 is irrevocable and is given in connection with
the increase in the cash consideration, and that such irrevocable proxy is given
to secure the performances of the duties of the Stockholders under this
Agreement. The Stockholders hereby further affirm that the irrevocable proxy
granted hereby is coupled with an interest in the Shares and, is intended to be
irrevocable in accordance with the provisions of Section 212(e) of the Delaware
General Corporation Law.
(e) The Stockholders will advise its clients to vote shares held by
Stockholder (which the Stockholders do not have voting power) for clients in
managed accounts, the number of such shares is indicated on the Signature Page,
to vote their shares, consistent with the proxy granted under Section 3.
SECTION 4. Further Assurances. From time to time, upon request of the other
party and without further consideration, each party hereto shall execute and
deliver any additional documents and take such further actions as may be
necessary to carry out the provisions hereof. The Stockholders agree, to testify
or provide other assistance in the event this Agreement or the Merger
consideration is challenged, and Xxxxxxx shall reimburse Stockholders for their
reasonable out of pocket expenses and costs associated with such assistance
(exclusive of any appearance fees or stipends), however Xxxxxxx shall only pay
one-half of such costs and expenses if such action seeks a temporary injunction.
The Stockholders agree to amend the existing Schedule 13D, at their own cost,
stating their firm intent to vote in favor of the Merger; the timing of which
shall be at the discretion of Xxxxxxx but in compliance with the rules and
regulations of the Securities and Exchange Commission. Xxxxxxx shall also amend
its Schedule 13D, consistent with the terms of this Agreement.
SECTION 5. Termination. Except as otherwise provided in this Agreement,
this Agreement, and all rights and obligations of the parties hereunder, shall
terminate immediately upon the earlier of (i) the termination of the Merger
Agreement in accordance with its terms, unless prior to such termination a
person or entity shall have made an Acquisition Proposal and (ii) the
consummation of the Merger. Sections 3(a) and 3(b) will terminate on the earlier
(x) the date computed in accordance with the previous sentence or (y) by
September 30, 2003. Nothing in this section shall relieve the Stockholders from
liability or breach of this Agreement. Sections 6 and 8 shall survive any
termination of this Agreement.
SECTION 6. Expenses; Indemnification. All fees and expenses incurred by any
one party hereto shall be borne by the party incurring such fees and expenses
Notwithstanding the foregoing, Xxxxxxx shall indemnify Stockholders, and hold
them harmless from and against any expenses and liabilities claimed by any party
in connection with any proceeding associated with Stockholders being deemed to
be a member of the Xxxxxxx group or by virtue of granting the irrevocable proxy
pursuant to this Agreement to the fullest extent permitted by applicable law,
the Certificate of Incorporation of the bylaws of Xxxxxxx in effect on the date
hereof or as such law, Certificate of Incorporation or bylaws may from time to
time be amended (but, in the case of any such amendment, only to the extent such
amendment permits Xxxxxxx to provide broader indemnification rights than the
law, the Certificate of Incorporation or the bylaws permitted Xxxxxxx to provide
before such amendment). Without diminishing the scope of the indemnification
provided by this Section 6, Xxxxxxx shall indemnify Stockholders whenever they
are a party or are threatened to be made a party to any proceeding, including
without limitation any such proceeding brought by or in the right of PartsBase,
Inc. or stockholders therein, because Stockholders are or were a member of the
Xxxxxxx group by virtue of granting the irrevocable proxy with respect to the
Merger, or because of anything done or not done by Stockholders in such
capacity, against expenses and liabilities actually and reasonably incurred by
Stockholders or on their behalf in connection with such proceeding, including
the costs of any investigation, defense, settlement or appeal. In addition to,
and not as a limitation of, the foregoing, the rights of indemnification of
Stockholders provided under this Agreement shall include the advance of all
reasonable expenses (as mutually agreed to by all parties), including attorneys
fees, incurred or to be incurred by or on behalf of Stockholders from time to
time, and shall be paid by Xxxxxxx to Stockholders within thirty (30) days after
the receipt by Xxxxxxx of a written request for an advance of expenses, whether
prior to or after final disposition of a proceeding.
SECTION 7. Public Announcements. Neither the Stockholders, nor any of their
affiliates shall issue or cause the publication of any press release or other
public announcement with respect to this Agreement or the other transactions
contemplated hereby without the prior written consent of Xxxxxxx, except as may
be required by law in which circumstance such announcing party shall make
reasonable efforts to consult with the Xxxxxxx to the extent practicable.
SECTION 8. Board Approval. The Board of Directors of the Company has, to
the extent required by applicable law, duly and validly authorized and approved
all necessary corporate action, this Agreement and the transactions contemplated
hereby, so that by the execution and delivery hereof no restrictive provision of
any "fair price," "moratorium," control share acquisition, "interested
shareholders" or similar anti-takeover statute or regulation, restrictive
provision of any applicable takeover provision in the Certificate of
Incorporation or Bylaws of the Company is, or will be applicable to the Company,
the Shares or the transaction contemplated by this Agreement.
SECTION 9. Miscellaneous.
(a) Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated herein are not affected in any manner materially
adverse to any party hereto. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in a mutually acceptable
manner.
(b) Binding Effect and Assignment. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; no party to this Agreement may assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the prior written consent of the other parties hereto.
(c) Amendments and Modification. Except as may otherwise be provided
herein, any provision of this Agreement may be amended, modified or waived by
the parties hereto if, and only if, such amendment or waiver is in writing and
signed, in the case of an amendment, by the parties hereto, and in the case of a
waiver, by the party against whom the waiver is to be effective.
(d) Specific Performance; Injunctive Relief. The parties hereto acknowledge
that Xxxxxxx shall be irreparably harmed and that there shall be no adequate
remedy at law for a violation of any of the covenants or agreements of the
Stockholders set forth herein. Therefore, it is agreed that, in addition to any
other remedies that may be available to Xxxxxxx upon any such violation, Xxxxxxx
shall have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available to Xxxxxxx at law
or in equity without the necessity of proving the inadequacy of money damages as
a remedy.
(e) Notices. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement to any
party hereunder shall be in writing and deemed given upon (a) personal delivery,
(b) transmitter's confirmation of a receipt of a facsimile transmission, (c)
confirmed delivery by a standard overnight carrier or when delivered by hand or
(d) when mailed in the United States by certified or registered mail, postage
prepaid, addressed at the following addresses (or at such other address for a
party as shall be specified by notice given hereunder):
If to Xxxxxxx: Xxxxxxx I, Inc.
000 Xxxxx Xxxxx Xxxx
Xxxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Xx.
Facsimile No.: (000) 000-0000
With a copy to: Xxxxxx & Xxxx, P.A.
Suite 1700
000 Xxxx Xxx Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
If to the Stockholders: To the address for notice set forth on the signature
page hereof.
With copies to: Xxxxx X. Xxxxx
Xxxxxx Eng & Xxxxxxxx
000 Xxxxxxx Xxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
(f) Governing Law. 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 laws thereof)
as to all matters, including, but not limited to, matters of validity,
construction, effect, performance and remedies.
(g) Entire Agreement. This Agreement constitutes the entire agreement among
the parties hereto with respect to the subject matter hereof and supersedes all
other prior agreements or understandings, both written and oral, between the
parties or any of them with respect to the subject matter hereof.
(h) Effect of Headings. The article and section headings contained in this
Agreement are solely for the purpose of reference, are not part of the agreement
of the parties hereto and shall not in any way affect the meaning or
interpretation of this Agreement.
(i) Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be deemed an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
The foregoing Agreement is hereby executed as of the date first above
written.
"XXXXXXX"
XXXXXXX I, INC.,
a Florida corporation
By:/S/ XXXXXX X. XXXXXXX, XX.
---------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: President
"STOCKHOLDERS"
ATLAS II, L.P.,
a New York Limited Partnership
By: /S/ XXXXXXX XXXXXXX, XX
---------------------------------
Name: Xxxxxxx Xxxxxxx, XX
Title: General Partner
Voting Power Over:
-----------------
- 866,000 shares of Company Common
Stock
- 0 shares of Company Common Stock
issuable upon exercise of options
MARATHON PARTNERS, L.P.,
a New York Limited Partnership
By: /S/ XXXXX XXXXXXX
---------------------------------
Name: Xxxxx Xxxxxxx
Title: General Partner
Voting Power Over:
-----------------
- 504,400 shares of Company Common
Stock
- 0 shares of Company Common Stock
issuable upon exercise of options
- 100,800 held on behalf of clients'
managed accounts
