VOTING AGREEMENT
This
Voting Agreement (this “Agreement”) is made as of May 7, 2008, by and among GCA
I Acquisition Corp., a Delaware corporation (“Parent”) and Xxxxxx X. Xxxxxx, a
principal stockholder of Xxxxx Energy Systems, Inc., a Delaware corporation
(the
“Company”)(the “Company Principal Stockholder”).
WHEREAS,
concurrently with the execution and delivery of this Agreement, Parent, Xxxxx
Energy Acquisition Corp., a Delaware corporation and wholly-owned subsidiary
of
Parent (“Merger Sub”) and the Company are entering into an Agreement and Plan of
Merger of even date herewith (the “Merger Agreement”), pursuant to which Merger
Sub will be merged with and into the Company, and the Company shall be the
surviving corporation following the merger (the “Merger”);
WHEREAS,
as of the date hereof, the Company Principal Stockholder is a Beneficial Owner
(as defined below) of the Subject Shares (as defined
below); and
WHEREAS,
in order to induce Parent to enter into the Merger Agreement, the Company
Principal Stockholder has agreed to enter into this Agreement.
NOW,
THEREFORE, in consideration of the foregoing premises and of the covenants
and
agreements set forth herein and in the Merger Agreement, and intending to be
legally bound hereby, the parties agree as follows:
1. Definitions.
(a) “Beneficially
Own” or “Beneficial Owner”
with
respect to any securities means having “beneficial ownership” as determined
pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”).
(b) “Company
Capital Stock”
means
shares of common stock, par value $0.001 per share, of the
Company.
(c) “Company
Options and Other Rights”
means
options, warrants and other rights to acquire, directly or indirectly, shares
of
Company Capital Stock.
(d) “Expiration
Date”
means
the earlier to occur of (i) the Effective Time (as defined in the Merger
Agreement) or (ii) the date on which the Merger Agreement is terminated
pursuant to its terms.
(e) “Subject
Shares”
means
(i) all shares of Company Capital Stock Beneficially Owned by the Company
Principal Stockholder as of the date of this Agreement and (ii) all
additional shares of Company Capital Stock of which the Company Principal
Stockholder acquires Beneficial Ownership during the period from the date of
this Agreement through the Expiration Date.
2. Voting.
(a) The
Company Principal Stockholder hereby reresents that it is an “accredited
investor” as such term is defined within Rule 501 of Regulation D promulgated
under the Securities Act of 1933, as amended (the “Securities Act”);
(b) The
Company Principal Stockholder hereby agrees that, prior to the Expiration Date,
at any meeting of the stockholders of the Company, however called, and in any
written action by consent of stockholders of the Company, unless otherwise
directed in writing by Parent, the Company Principal Stockholder shall cause
to
be counted as present thereat for purposes of establishing a quorum and, subject
only to Parent’s compliance with applicable securities laws, shall vote, or
cause to be voted, any and all Subject Shares Beneficially Owned by the
Company Principal Stockholder as of the record date of such meeting or written
consent:
(i) for
the
execution and delivery by the Company of the Merger Agreement and the adoption
and approval of the Merger Agreement and the terms thereof, in favor of each
of
the other actions contemplated by the Merger Agreement and in favor of any
action in furtherance of any of the foregoing;
(ii) against
any action or agreement that would result in a breach of any representation,
warranty, covenant or obligation of the Company in the Merger
Agreement; and
(iii) against
the following actions (other than the Merger and the transactions contemplated
by the Merger Agreement): (A) any extraordinary corporate transaction, such
as a merger, consolidation or other business combination involving the Company
or any subsidiary of the Company; (B) any sale, lease, sublease, license,
sublicense or transfer of a material portion of the rights or other assets
of
the Company or any subsidiary of the Company; (C) any reorganization,
recapitalization, dissolution or liquidation of the Company or any subsidiary
of
the Company; (D) any change in the individuals who serve as members of the
board of directors of the Company; (E) any amendment to the Company’s
certificate of incorporation or bylaws; (F) any material change in the
capitalization of the Company or the Company’s corporate structure; and
(G) any other action which is intended, or could reasonably be expected, to
impede, interfere with, delay, postpone, discourage or adversely affect the
Merger or any of the other transactions contemplated by the Merger Agreement
or
this Agreement.
(c) No
provision contained in this Agreement shall prohibit the Company Principal
Stockholder from voting in his capacity as a director of the Company in any
manner whatsoever.
(d) Prior
to
the Expiration Date, the Company Principal Stockholder shall not enter into
any
other agreement or understanding with any Person requiring him to vote in his
capacity as a stockholder or give instructions in any manner inconsistent with
clause “(i),” clause “(ii)” or clause “(iii)” of this
Section 2(a).
(e) The
Company Principal Stockholder hereby waives and agrees not to exercise any
applicable “appraisal rights” under the Delaware General Corporation Law with
respect to the Subject Shares in connection with the Merger and the Merger
Agreement.
3. Written
Consent of Stockholders. Upon
the U.S. Securities and Exchange Commission’s declaration of the
effectiveness of the Registration Statement on Form S-4 filed by Parent in
connection with the Merger, if at all, the Company Principal Stockholder shall
deliver to Parent a written consent in favor of the adoption of the Merger
Agreement and the Merger.
4. Representations
and Warranties of Stockholder. The
Company Principal Stockholder represents and warrants to Parent as
follows:
(a) As
of the
date of this Agreement and at all times through the Expiration
Date:
2
(i) He
is the
Beneficial Owner (free and clear of any encumbrances or restrictions) of the
outstanding shares of Company Capital Stock set forth under the heading “Shares
of Company Capital Stock Beneficially Owned”, on the signature page
hereof;
(ii) He
is the
Beneficial Owner (free and clear of any encumbrances or restrictions) of the
outstanding Company Options and Other Rights set forth under the heading
“Company Options and Other Rights Beneficially Owned” on the signature page
hereof; and
(iii) He
does
not directly or indirectly Beneficially Own any shares of Company Capital Stock
or Company Options or Other Rights or other securities of the Company, other
than the shares of Company Capital Stock and Company Options and Other Rights
set forth on the signature page hereof.
(b) The
Company Principal Stockholder has the legal capacity, power and authority to
enter into and perform all of its obligations under this Agreement. This
Agreement has been duly executed and delivered by the Company Principal
Stockholder, and upon its execution and delivery by Parent, will constitute
a
legal, valid and binding obligation of the Company Principal Stockholder,
enforceable against him in accordance with its terms, except as enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting or relating to creditors rights generally, and the
availability of injunctive relief and other equitable remedies.
(c) The
execution, delivery and performance by the Company Principal Stockholder of
this
Agreement will not (i) conflict with, require a consent, waiver or approval
under, or result in a breach of or default under, any of the terms of any
contract, commitment or other obligation (written or oral) to which such Company
Principal Stockholder is a party or by which any of his assets may be
bound.
(d) No
filing
with, and no permit, authorization, consent or approval of, any state or federal
public body or authority is necessary for the execution of this Agreement by
the
Company Principal Stockholder and the consummation by Company Principal
Stockholder of the transactions contemplated hereby.
5. Covenants
of Stockholder. The
Company Principal Stockholder covenants and agrees for the benefit of Parent
that, until the Expiration Date, he shall not:
(a) sell,
transfer, pledge, hypothecate, encumber, assign, tender or otherwise dispose
of,
or enter into any contract, option or other arrangement or understanding with
respect to the sale, transfer, pledge, hypothecation, encumbrance, assignment,
tender or other disposition of, (i) any Subject Shares or any interest
therein, or (ii) any Company Options and Other Rights or any interest
therein; provided,
however,
that
Stockholder may convert, exercise or exchange Company Options and Other Rights
into or for shares of Company Capital Stock in which event such shares of
Capital Stock shall become and be deemed Subject Shares subject to all the
terms
and conditions of this Agreement;
(b) acquire
any shares of the stock of Parent except pursuant to existing Company Options
and Other Rights or unless such shares shall become subject to the terms of
this
Agreement;
(c) grant
any
powers of attorney or proxies or consents in respect of any of the Subject
Shares, deposit any of such Subject Shares into a voting trust, or enter into
a
voting agreement with respect to any of such Subject Shares; or
3
(d) take
any
other action with respect to the Subject Shares that would in any way restrict,
limit or interfere with the performance of Stockholder’s obligations hereunder
or the transactions contemplated hereby and the Merger Agreement.
6. Adjustments;
Additional Shares. In
the event (a) of any stock dividend, stock split, merger, recapitalization,
reclassification, combination, exchange of shares or the like of the capital
stock of the Company on, of or affecting the Subject Shares, or (b) that
Stockholder shall become the Beneficial Owner of any additional shares of
Company Capital Stock or other securities entitling the holder thereof to vote
or give consent with respect to the matters set forth in Section 2(a), then
the terms of this Agreement shall apply to the shares of Company Capital Stock
or other instruments or documents held by Stockholder immediately following
the
effectiveness of the events described in clause (a) or Stockholder becoming
the Beneficial Owner thereof as described in clause (b), as though, in
either case, they were Subject Shares hereunder. The foregoing shall apply
(mutatis
mutandis)
to the
Parent Shares and Section 3 of this Agreement.
7. Amendments
and Waivers. Any
provision of this Agreement may be amended or waived if, and only if, such
amendment or waiver is in writing and is signed, in the case of an amendment,
by
each party to this Agreement, or in the case of a waiver, by the party against
whom the waiver is to be effective. No failure or delay by any party in
exercising any right or privilege hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. To
the
maximum extent permitted by law, (a) no waiver that may be given by a party
shall be applicable except in the specific instance for which it was given
and
(b) no notice to or demand on one party shall be deemed to be a waiver of
any obligation of such party or the right of the party giving such notice or
demand to take further action without notice or demand.
8. Assignment. This
Agreement may not be assigned by any party hereto without the prior written
consent of the other parties. Subject to the foregoing, all of the terms and
provisions of this Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective executors, heirs, personal
representatives, successors and assigns.
9. Entire
Agreement. This
Agreement and the documents, instruments and other agreements specifically
referred to herein or delivered pursuant hereto, set forth the entire
understanding of the parties with respect to the subject matter hereof. Any
and
all previous agreements and understandings between or among the parties
regarding the subject matter hereof, whether written or oral, are superseded
by
this Agreement.
10. Notices. Any
notice, request, demand, waiver, consent, approval or other communication which
is required or permitted hereunder shall be in writing and shall be deemed
given
(a) on the date established by the sender as having been delivered
personally; (b) on the date delivered by a private courier as established
by the sender by evidence obtained from the courier; (c) on the date sent
by facsimile, with confirmation of transmission, if sent during normal business
hours of the recipient, if not, then on the next business day; or (d) on
the fifth day after the date mailed, by certified or registered mail, return
receipt requested, postage prepaid. Such communications, to be valid, must
be
addressed as follows:
If
to
Parent, to:
000
Xxxx
00xx
Xxxxxx,
Xxxxx 0000
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxx X. Xxxxxxxx
Facsimile:
000-000-0000
4
With
a
required copy to:
X.X.
Xxxxxxxx, PLLC
000
Xxxx
00xx
Xxxxxx,
Xxxxx 0000
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxx X. Xxxxxxxx
Facsimile:
000-000-0000
If
to any
of the Company Principal Stockholder:
Xxxxxx
X.
Xxxxxx
c/o Bixby
Energy Systems, Inc.
0000
000xx
Xxxx XX
Xxxxxx,
XX 00000
Facsimile:
000-000-0000
With
a
required copy to:
Xxxxxxxx
& Associates, PA
0000
Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx,
XX 00000
Attn:
Xxxxx Xxxxxxxx, Esq.
Facsimile:
000-000-0000
or
to
such other address or to the attention of such person or persons as the
recipient party has specified by prior written notice to the sending party
(or
in the case of counsel, to such other readily ascertainable business address
as
such counsel may hereafter maintain). If more than one method for sending notice
as set forth above is used, the earliest notice date established as set forth
above shall control.
11.
Captions.
All captions contained in this Agreement are for convenience of reference only,
do not form a part of this Agreement and shall not affect in any way the meaning
or interpretation of this Agreement.
12.
Severability;
Enforcement. Any
provision of this Agreement which is invalid or unenforceable in any
jurisdiction shall be ineffective to the extent of such invalidity or
unenforceability without invalidating or rendering unenforceable the remaining
provisions hereof, and any such invalidity or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
13.
Specific
Performance. The
Company Principal Stockholder acknowledges that the agreements contained in
this
Agreement are an integral part of the transactions contemplated by the Merger
Agreement, and that, without these agreements, Parent would not enter into
the
Merger Agreement, and acknowledges that damages would be an inadequate remedy
for any breach by the Company Principal Stockholder of the provisions of this
Agreement. Accordingly, the Company Principal Stockholder agrees that his
obligations hereunder shall be specifically enforceable and he shall not take
any action to impede the other from seeking to enforce such right of specific
performance.
5
14.
Consent
to Jurisdiction. Each
party irrevocably submits to the exclusive jurisdiction of (a) New York
County, New York, and (b) the United States District Court for the Southern
District of New York, for the purposes of any action, suit or proceeding arising
out of this Agreement or any transaction contemplated hereby. Each party agrees
to commence any such action, suit or proceeding either in the United States
District Court for the Southern District of New York or if such action, suit
or
proceeding may not be brought in such court for jurisdictional reasons, in
the
Supreme Court sitting in New York County (including its Appellate Division).
Each party further agrees that service of any process, summons, notice or
document by U.S. registered mail to such party’s respective address set
forth above shall be effective service of process for any action, suit or
proceeding in New York with respect to any matters to which it has submitted
to
jurisdiction in this Section 14. Each party irrevocably and unconditionally
waives any objection to the laying of venue of any action, suit or proceeding
arising out of this Agreement or the transactions contemplated hereby in
(i) the United States District Court for the Southern District of New York,
or (ii) the Supreme Court sitting in New York County (including its
Appellate Division), and hereby further irrevocably and unconditionally waives
and agrees not to plead or claim in any such court that any such action, suit
or
proceeding brought in any such court has been brought in an inconvenient forum.
EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION
(WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE ACTIONS OF SUCH PARTY IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE AND ENFORCEMENT HEREOF.
15.
Governing
Law. This
Agreement shall be governed by and interpreted and enforced in accordance with
the laws of the State of New York, without giving effect to any choice of law
or
conflict of laws rules or provisions (whether of the State of New York or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of New York, except to the extent that the
voting of the Subject Shares is subject to the corporate law of the State of
Delaware.
IN
WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto
all
as of the day and year first above written.
|
By:
|
|
|
Name:
Xxxxxxx
X. Xxxxxxxx
|
|
|
Title:
President
and Chief Executive Officer
|
|
COMPANY
PRINCIPAL STOCKHOLDER:
|
|
|
XXXXXX
X. XXXXXX
|
Number
of
shares of Company Common Stock: 1,800,002
Number
of
shares of Company Series _ Preferred Stock:
-0-
Number
of
Company Stock Options and/or Warrants:
2,255,000
6
