VOTING AGREEMENT
This
Voting
Agreement (“Agreement”)
is made and
entered into as of December 10, 2006, by and among Xxxxxxx Navigation Limited,
a
California corporation
(“Acquirer”),
Roadrunner
Acquisition Corp.,
a Delaware
corporation and a wholly-owned subsidiary of Acquirer (“Merger
Sub”),
and
the undersigned
stockholder (the “Stockholder”)
of @Road, Inc.,
a Delaware corporation (the “Company”).
Certain
capitalized terms used in this Agreement are defined in Section 6 hereof and
certain other capitalized terms used in this Agreement that are not defined
herein shall have the meaning given to such terms in the Merger Agreement (as
defined below).
RECITALS
WHEREAS,
Stockholder is
the holder of record and the “beneficial owner” (within the meaning of Rule
13d-3 under the Securities Exchange Act of 1934) of certain common stock of
the
Company;
WHEREAS,
concurrently with
the execution and delivery of this Agreement, Acquirer, Merger Sub and the
Company are entering into an Agreement and Plan of Merger (the “Merger Agreement”)
which provides,
upon the terms and subject to the conditions set forth therein, for the merger
of Merger Sub with and into the Company (the “Merger”);
and
WHEREAS,
as a condition
and inducement to Acquirer’s willingness to enter into the Merger Agreement, the
Stockholder has agreed to execute and deliver this Agreement.
AGREEMENT
NOW,
THEREFORE,
the parties to
this Agreement, intending to be legally bound, agree as follows:
1. Agreement
to Vote Shares.
Prior to the
Termination Date, at every meeting of the stockholders of the Company (or of
the
holders of any class of stock of the Company's capital stock) called with
respect to any of the following, and at every adjournment or postponement
thereof, with respect to any of the following, the Stockholder shall vote with
respect to the Subject Securities: (a) in favor of adoption of the Merger
Agreement and approval of the Merger and the other actions contemplated by
the
Merger Agreement or would reasonably be expected to facilitate the Merger
Agreement, the Merger and the other actions and transactions contemplated by
the
Merger Agreement, this Agreement or the Proxy (the “Merger
Proposals”),
(b) against any proposal for any Acquisition Transaction between the
Company and any Person other than Acquirer or Merger Sub, and (c) against any
other action, agreement or proposal that could reasonably be expected to result
in a breach of any covenant, representation or warranty or any other obligation
or agreement of the Company under the Merger Agreement or the related
transactions or which could reasonably be expected to result in any of the
conditions to the consummation of the Merger under the Merger Agreement not
being fulfilled or which could reasonably be expected to otherwise impede,
interfere with, delay, postpone or materially adversely affect the Merger or
the
other transactions contemplated by the Merger Agreement.
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1
2. Irrevocable
Proxy.
Concurrently with
the execution of this Agreement, the Stockholder agrees to deliver to Acquirer
a
proxy in the form attached hereto as Exhibit
A
(the “Proxy”),
which is
coupled with an interest and shall be irrevocable to the fullest extent
permitted by law, with respect to the shares referred to therein, which Proxy
shall remain in effect until the Termination Date.
3. Agreement
to Retain Shares.
(a) Restriction
on Transfer.
Except pursuant
to the terms of the Merger Agreement or otherwise provided in Section 3(c)
of
this Agreement, during the period from the date of this Agreement through the
Termination Date, the Stockholder shall not, directly or indirectly, cause
or
permit any Transfer of any of the Subject Securities to be effected. Any
Transfer of any Subject Securities in violation of this Section 3 shall be
void
and have no force or effect.
(b) Restriction
on Transfer of Voting Rights. During
the period
from the date of this Agreement through the Termination Date, the Stockholder
shall not: (a) grant any proxy or power of attorney, deposit any of the Subject
Securities into a voting trust or enter into a voting agreement or similar
arrangement with respect to the Subject Securities except as provided in this
Agreement; or (b) take any other action that would make any representation
or
warranty of the Stockholder contained herein untrue or incorrect or have the
effect of preventing or disabling the Stockholder from performing its
obligations under this Agreement or the Transaction Documents.
(c) Permitted
Transfers.
Section 3(a)
shall not prohibit a Transfer of Company Capital Stock by the Stockholder upon
the death of the Stockholder; provided,
however,
that a Transfer
referred to in this sentence shall be permitted only if, as a precondition
to
such Transfer, the transferee (i) agrees in a writing, reasonably satisfactory
in form and substance to Acquirer, to be bound by the terms of this Agreement
and refrain from any and all Transfers of the Subject Securities, and (ii)
delivers a Proxy to Acquirer in substantially the form of Exhibit
A.
In addition, Section 3(a) shall not prohibit a Transfer of Company Capital
Stock
by the Stockholder pursuant to the terms of a trading plan adopted pursuant
to
Rule 1065-1 under the Exchange Act in effect prior to the date hereof.
4. Representations,
Warranties and Covenants of Stockholder.
The Stockholder
hereby represents and warrants to Acquirer as follows:
(a) Due
Authorization, Etc.
All consents,
approvals, authorizations, filings and orders necessary for the execution and
delivery by the Stockholder of this Agreement and the Proxy have been obtained
or made, and the Stockholder has legal capacity, power and authority to enter
into this Agreement and the Proxy. This Agreement and the Proxy have been duly
and validly executed and delivered by the Stockholder and constitute valid
and
binding agreements or instruments of the Stockholder enforceable in accordance
with their terms, except as the same may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws now or hereafter in effect relating
to creditors’ rights generally and subject to general principles of
equity.
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2
(b) No
Conflict.
The execution and
delivery of this Agreement and the Proxy by the Stockholder do not, and the
performance of this Agreement and the Proxy by the Stockholder will not conflict
with, violate or result in a breach of or constitute (with or without notice
or
the passage of time) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration) under (i)
the
organizational documents of the Stockholder, if any, (ii) any law, rule,
regulation, order, decree or judgment applicable to the Stockholder, the Subject
Securities held by the Stockholder or any of the Stockholder's other properties
or assets or (iii) any contract, indenture, guarantee, lease, mortgage, license
or other agreement, instrument, obligation or undertaking of any kind to which
Stockholder is a party or by which the Stockholder or any of its properties
or
assets are bound.
(c) Title
to
Securities.
As of the date of
this Agreement: (a) the Stockholder holds of record the outstanding Company
Common Stock set forth under the heading “Stock Held of Record” on the signature
page hereof; (b) the Stockholder holds the options and other rights to acquire
shares of Company Common Stock set forth under the heading “Options and Other
Rights” on the signature page hereof; (c) the Stockholder Owns the additional
securities of the Company set forth under the heading “Additional Securities
Beneficially Owned” on the signature page hereof; and (d) the Stockholder does
not directly or indirectly Own any capital stock or other securities of the
Company, or any option, warrant or other right to acquire (by purchase,
conversion or otherwise) any capital stock or other securities of the Company,
other than the stock and options, warrants and other rights set forth on the
signature page hereof. The Stockholder has voting power and power to issue
instructions with respect to the matters set forth herein, power of disposition,
power of conversion, power to demand appraisal rights and power to agree to
all
of the matters set forth in this Agreement, in each case with respect to all
of
the Subject Securities with no limitations, qualifications or restrictions
on
such rights. Except as permitted by this Agreement the Subject Securities are
now and, at all times during the term hereof, the Subject Securities will be,
held by the Stockholder or by a nominee or custodian for the benefit of the
Stockholder, free and clear of all mortgages, claims, charges, liens, security
interests, pledges or options, proxies, voting trusts or agreements,
understandings or arrangements or any other rights whatsoever.
(d) Community
Property.
The Stockholder
either (i) is not, and will not be during the term of this Agreement, subject
to
community property laws or (ii) has delivered a Community Property Waiver in
the
form of Exhibit
B
hereto with respect to each person who has or who may acquire community property
rights in any of the Subject Securities.
(e) Reliance
by
Acquirer.
The Stockholder
understands and acknowledges that Acquirer is entering into the Merger Agreement
in reliance upon the Stockholder's execution and delivery of this
Agreement.
(f) Stop
Transfer.
The Stockholder
hereby agrees and covenants that it will not request that the Company register
the transfer of any certificate or uncertificated interest representing any
of
the Subject Securities, unless such transfer is made in compliance with this
Agreement. In the event of a stock dividend or distribution, or any change
in
the Common Stock by reason of any stock dividend, split-up, recapitalization,
combination, exchange of stock or the like other than pursuant to the Merger,
the term “Subject Securities” will be deemed to refer to and include the Common
Stock as well as all such stock dividends and distributions and any stock into
which or for which any or all of the Subject Securities may be changed or
exchanged and appropriate adjustments shall be made to the terms and provisions
of this Agreement.
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3
5. Further
Assurances.
From time to time
and without additional consideration, the Stockholder shall (at the
Stockholder’s sole expense) execute and deliver, or cause to be executed and
delivered, such additional transfers, assignments, endorsements, proxies,
consents and other instruments, and shall (at the Stockholder’s sole expense)
take such further actions, as Acquirer may request for the purpose of carrying
out and furthering the intent of this Agreement.
6. Certain
Definitions.
For purposes of
this Agreement,
(a) “Company
Common Stock”
means the common
stock, par value $0.0001 per share, of the Company.
(b) The
Stockholder
shall be deemed to “Own”
or to have
acquired “Ownership”
of a security if
the Stockholder is the “beneficial
owner”
of such security
within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934,
as
amended (the “Exchange
Act”).
(c) “Person”
means any (i)
individual, (ii) corporation, limited liability company, partnership or other
entity or (iii) Governmental Entity.
(d) “Subject
Securities”
means: (i) all
securities of the Company (including all Company Common Stock and all options,
warrants and other rights to acquire Company Common Stock) Owned by the
Stockholder as of the date of this Agreement, whether vested or unvested; and
(ii) all additional securities of the Company (including all additional Company
Common Stock and all additional options, warrants and other rights to acquire
Company Common Stock), whether vested or unvested, of which the Stockholder
acquires Ownership (regardless of the method by which Stockholders acquire
Ownership) during the period from the date of this Agreement through the
Termination Date.
(e) “Termination
Date”
means the earlier
to occur of the date (i) the Merger shall become effective in accordance with
the terms and provisions of the Merger Agreement or (ii) the Merger Agreement
terminates in accordance with its terms.
(f) A
Person shall be
deemed to have effected a “Transfer”
of a security if
such Person directly or indirectly: (i) sells, pledges, assigns, encumbers,
transfers or disposes of, or grants an option, contract or other arrangement
or
understanding with respect to such security or any interest in such security
to
any Person other than Acquirer; (ii) consents to or enters into an agreement
or
commitment contemplating the offer for sale or sale, pledge, assignment,
encumbrance, transfer or disposition of, or grant of an option, contract or
other arrangement or understanding with respect to, such security or any
interest therein to any Person other than Acquirer or Merger Sub; (iii) reduces
such Person’s
beneficial
ownership of, interest in or risk relating to such security other than in
connection with the Merger or (iv) offers to do any of the
foregoing.
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4
7. Miscellaneous.
(a) Assignment;
Binding Effect.
Except as
provided herein, neither this Agreement nor any of the interests or obligations
hereunder may be assigned or delegated by the Stockholder, and any attempted
or
purported assignment or delegation of any of such interests or obligations
shall
be void. Subject to the preceding sentence, this Agreement shall be binding
upon
the Stockholder and the Stockholder’s
heirs, estate,
executors and personal representatives and the Stockholder’s
successors and
assigns, and shall inure to the benefit of Acquirer and its successors and
assigns. Without limiting any of the restrictions set forth in Section 3(a)
or
elsewhere in this Agreement, this Agreement shall be binding upon any Person
to
whom any Subject Securities are transferred. Nothing in this Agreement is
intended to confer on any Person (other than Acquirer and its successors and
assigns) any rights or remedies of any nature.
(b) Specific
Performance.
The parties agree
that irreparable damage would occur in the event that any of the provisions
of
this Agreement or the Proxy were not performed in accordance with its specific
terms or were otherwise breached and in the event of any breach or threatened
breach by the Stockholder of any covenant or obligation contained in this
Agreement or in the Proxy, Acquirer shall be entitled (in addition to any other
remedy that may be available to it, including monetary damages) to seek (a)
a
decree or order of specific performance to enforce the observance and
performance of such covenant or obligation, and (b) an injunction restraining
such breach or threatened breach.
(c) Waiver;
Remedies Cumulative.
No failure on the
part of Acquirer to exercise any power, right, privilege or remedy under this
Agreement, and no delay on the part of Acquirer in exercising any power, right,
privilege or remedy under this Agreement, shall operate as a waiver of such
power, right, privilege or remedy; and no single or partial exercise of any
such
power, right, privilege or remedy shall preclude any other or further exercise
thereof or of any other power, right, privilege or remedy. Acquirer shall not
be
deemed to have waived any claim available to Acquirer arising out of this
Agreement, or any power, right, privilege or remedy of Acquirer under this
Agreement, unless the waiver of such claim, power, right, privilege or remedy
is
expressly set forth in a written instrument duly executed and delivered on
behalf of Acquirer; and any such waiver shall not be applicable or have any
effect except in the specific instance in which it is given. All rights and
remedies existing under this Agreement are cumulative to, and not exclusive
to,
and not exclusive of, any rights or remedies otherwise available.
(d) Governing
Law.
This Agreement
and all acts and transactions pursuant hereto and the rights and obligations
of
the parties hereto shall be governed, construed and interpreted in accordance
with the laws of the State of Delaware without giving effect to principles
of
conflicts or choice of law.
(e) Counterparts.
This Agreement
may be executed in two or more counterparts (including by facsimile), each
of
which shall be deemed an original and all of which together shall constitute
one
instrument.
(f) Entire
Agreement.
This Agreement
and the Proxy constitute the entire agreement between the parties with respect
to the subject matter hereof and supersede all prior agreements and
understandings between the parties with respect thereto. No addition to or
modification of any provision of this Agreement shall be binding upon any party
unless made in writing and signed by the party against whom enforcement is
sought.
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5
(g) Notices.
Any notice
required or permitted by this Agreement shall be in writing and shall be deemed
sufficient upon receipt, when delivered personally or by courier, overnight
delivery service or confirmed facsimile, or forty-eight (48) hours after being
deposited in the regular mail as certified or registered mail (airmail if sent
internationally) with postage prepaid, if such notice is addressed to the party
to be notified at such party’s
address or
facsimile number as set forth below, or as subsequently modified by written
notice.
(h) 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 hereto further agree to replace such void or unenforceable provision
of this Agreement with a valid and enforceable provision that will achieve,
to
the extent possible, the economic, business and other purposes of such void
or
unenforceable provision.
(i) Waiver
of
Jury Trial.
EACH OF ACQUIRER,
MERGER SUB AND THE STOCKHOLDER HEREBY IRREVOCABLY WAIVE AND COVENANT THAT THEY
WILL NOT ASSERT THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY COURSE OF CONDUCT, COURSE
OF
DEALINGS, STATEMENT OR ACTION RELATED HERETO OR THERETO.
(j) Descriptive
Heading.
The descriptive
headings used herein are for reference purposes only and will not affect in
any
way the meaning or interpretation of this Agreement.
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6
The
parties have
caused this Agreement to be duly executed on the date first above
written.
ACQUIRER:
XXXXXXX
NAVIGATION
LIMITED
By:___________________________
Name:
Xxxxx
Xxxxxx
Title:
Vice
President
Address
for
notices:
MERGER
SUB:
ROADRUNNER
ACQUISITION CORP.
By:___________________________
Name:
Xxxxx
Xxxxxx
Title:
Vice
President
Address
for
notices:
000
Xxxxxxx
Xxxxx
Xxxxxxxxx,
Xxxxxxxxxx 00000
[SIGNATURE
PAGE TO
VOTING AGREEMENT]
Page
7
STOCKHOLDER:
By:______________________________
Name:
Title:
Address
for
notices:
|
Company
Common Stock Held
of
Record
|
Options
and
Other Rights
|
Additional
Securities Beneficially
Owned
|
Page
8
EXHIBIT
A
IRREVOCABLE
PROXY
IRREVOCABLE
PROXY
The
undersigned
stockholder (the “Stockholder”)
of @Road,
Inc.,
a Delaware corporation (the “Company”),
hereby
irrevocably appoints each of Xxxx
Xxxxxxxxxx
and Xxxxx
Xxxxxx,
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 expressly provided herein (to the full extent that the undersigned is
entitled to do so) with respect to (i) the outstanding capital stock of the
Company owned of record by the Stockholder as of the date of this Proxy, which
shares are specified on the final page of this Proxy, and (ii) any and all
other
capital stock of the Company which the Stockholder may acquire on or after
the
date hereof. The capital stock of the Company referred to in clauses “(i)” and
“(ii)” of the immediately preceding sentence are collectively referred to as the
“Shares”.
Upon the
undersigned’s execution of this Proxy, any and all prior proxies given by the
undersigned with respect to any of the Shares relating to the subject matter
hereof are hereby revoked and the undersigned agrees not to grant any subsequent
proxies with respect to the Shares.
This
Proxy is
irrevocable, is coupled with an interest and is granted pursuant to that certain
Voting Agreement of even date herewith, by and among Xxxxxxx Navigation Limited,
a California corporation
(“Acquirer”),
Roadrunner
Acquisition Corp.,
a Delaware
corporation (“Merger
Sub”)
and
the Stockholder,
and is granted in consideration of Acquirer entering into that certain Agreement
and Plan of Merger (the “Merger
Agreement”),
of even date
herewith, by and among the Company, Acquirer, Merger Sub and
the
Stockholder.
As used herein,
the term “Termination
Date”
means
the earlier
to occur of the date (i) the Merger shall become effective in accordance with
the terms and provisions of the Merger Agreement, or (ii) the Merger Agreement
terminates in accordance with its terms. Unless otherwise provided, other
capitalized terms used but not defined in this Agreement shall have the meaning
given to such terms in the Merger Agreement.
Each
of the
attorneys and proxies named above is hereby authorized and empowered by the
undersigned, at any time prior to the Termination Date, to act as the
undersigned’s attorney and proxy to vote the Shares, and to exercise all voting
and other rights of the undersigned with respect to the Shares at every annual,
special or adjourned meeting of the stockholders of the Company: (a) in favor
of
adoption of the Merger Proposals (as defined in the Voting Agreement),
(b) against any proposal for any Acquisition Transaction, other than the
Merger, between the Company and any Person (as defined in the Voting Agreement)
other than Acquirer or Merger Sub, and (c) against any other action, agreement
or proposal that could reasonably be expected to result in a breach of any
covenant, representation or warranty or any other obligation or agreement of
the
Company under the Merger Agreement or the related transactions or which could
reasonably be expected to result in any of the conditions to the consummation
of
the Merger under the Merger Agreement not being fulfilled or which could
reasonably be expected to otherwise impede, interfere with, delay, postpone
or
materially adversely affect the Merger or the other transactions contemplated
by
the Merger Agreement.
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This
Proxy shall be
binding upon the heirs, estate, executors, personal representatives, successors
and assigns of the Stockholder (including any transferee of any of the
Shares).
Dated:
December 10,
2006
(Signature
of
Stockholder)
(Print
Name of
Stockholder)
Number
of common
stock of the Company owned of record as of the date of this Proxy:
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10
EXHIBIT
B
SPOUSAL
CONSENT
The
undersigned
represents that the undersigned is the spouse of:
Name
of
Stockholder
and
that the
undersigned is familiar with the terms of the Voting Agreement (the
“Agreement”),
entered into as
of December 10, 2006 by and among Xxxxxxx Navigation Limited , a California
corporation, Roadrunner Acquisition Corp., a Delaware corporation, and the
undersigned's spouse, __________________________. The undersigned hereby agrees
that the interest of the undersigned's spouse in all property which is the
subject of such Agreement shall be irrevocably bound by the terms of such
Agreement and by any amendment, modification, waiver or termination signed
by
the undersigned's spouse. The undersigned further agrees that the undersigned's
community property interest in all property which is the subject of such
Agreement shall be irrevocably bound by the terms of such Agreement, and that
such Agreement shall be binding on the executors, administrators, heirs and
assigns of the undersigned. The undersigned further authorizes the undersigned's
spouse to amend, modify or terminate such Agreement, or waive any rights
thereunder, and that each such amendment, modification, waiver or termination
signed by the undersigned's spouse shall be binding on the community property
interest of undersigned in all property which is the subject of such Agreement
and on the executors, administrators, heirs and assigns of the undersigned,
each
as fully as if the undersigned had signed such amendment, modification, waiver
or termination.
Dated:
_____________________________
Name:
