EXHIBIT 2
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VOTING AGREEMENT
This VOTING AGREEMENT (this "Agreement") is made as of October __, 2002,
among the stockholder(s) listed on the signature pages hereto (each, a
"Stockholder") of Xxxxxx Technologies, Inc., a Delaware corporation ("Xxxxxx"),
and Abiliti Solutions, Inc., a Missouri corporation ("Abiliti").
A. Abiliti, Xxxxxx and Xxxxxx Solutions, Inc., a Delaware corporation and
an indirect, wholly-owned subsidiary of Xxxxxx ("Acquisition Sub") are entering
into an Asset Purchase Agreement on substantially the terms and conditions set
forth in the draft dated October 1, 2002 and provided to the undersigned
herewith (a definitive agreement on substantially such terms and conditions, as
the same may be modified or amended from time to time, the "Asset Purchase
Agreement"), providing for the purchase by Acquisition Sub of substantially all
of the assets of Abiliti (the "Purchase"). Concurrent with the consummation of
the Purchase, certain stakeholders of Abiliti will invest approximately $5
million into securities issued by Xxxxxx (the "Investment"), on substantially
the terms and conditions set forth in the Investment Agreement attached as an
exhibit to the Asset Purchase Agreement. Capitalized terms used herein and not
otherwise defined shall have the meanings assigned such terms in the Asset
Purchase Agreement.
B. It is a condition to the execution and delivery of the Asset Purchase
Agreement that the Stockholders execute and deliver this Agreement committing to
vote for and consent to the Purchase and the other Contemplated Transactions.
Accordingly, the parties hereto agree as follows:
Section 1. REPRESENTATIONS, WARRANTIES AND COVENANTS. Each Stockholder
(with respect to itself only) hereby represents, warrants and covenants,
severally and not jointly, to Abiliti as follows:
(a) TITLE. As of the date hereof, such Stockholder owns beneficially
or of record the number of shares of each class of capital stock of Xxxxxx set
forth after such Stockholder's name on Exhibit A hereto (with respect to each
Stockholder, the capital stock specified after such Stockholder's name on
Exhibit A hereto shall be referred to herein as the "Shares"). The term
"beneficial owner" and all correlative expressions are used in this Agreement as
defined in Rules 13d-3 and 16a-1 under the Securities Exchange Act of 1934, as
amended (the "Act").
(b) RIGHT TO VOTE. As of the date hereof and as of date of each vote
or consent of such Stockholder through and including the Closing Date, except
for this Agreement or as otherwise permitted by this Agreement, such Stockholder
has full legal power, authority and right to vote all of the Shares in favor of
the approval and authorization of the Asset Purchase Agreement, the Purchase,
the authorization and issuance of the Purchase Price in connection therewith,
the amendment of the Certificate of Incorporation of Xxxxxx in the form of the
Amended and Restated Certificate of Incorporation attached as Exhibit F to the
Asset Purchase Agreement, and the other Contemplated Transactions (to the extent
Xxxxxx is a party thereto) (collectively, the "Xxxxxx Proposals") without the
consent or approval of, or any other action on the part of, any other person or
entity. Without limiting the generality of the foregoing, such Stockholder has
not entered into any voting agreement with any person or entity with respect to
any of the Shares, granted any person or entity any proxy (revocable or
irrevocable) or power of attorney with respect to any of the Shares, deposited
any of the Shares in a voting trust or entered into any arrangement or agreement
with any person or entity limiting or affecting its legal power, authority or
right to vote the Shares in favor of the Xxxxxx Proposals except for this
Agreement.
From and after the date hereof, except for this Agreement and as
otherwise permitted by this Agreement or prohibited by order of a court of
competent jurisdiction, such Stockholder will not knowingly commit any act that
could restrict or otherwise affect its legal power, authority and right to vote
all of the Shares in favor of the Xxxxxx Proposals. Without limiting the
generality of the foregoing, except for this Agreement and as otherwise
permitted by this Agreement, from and after the date hereof, each Stockholder
will not enter into any voting agreement with any person or entity with respect
to any of the Shares, grant any person or entity any proxy (revocable or
irrevocable) or power of attorney with respect to any of the Shares, deposit any
of the Shares in a voting trust or otherwise enter into any agreement or
arrangement with any person or entity limiting or affecting such Stockholder's
legal power, authority or right to vote the Shares in favor of the approval of
the Xxxxxx Proposals.
(c) AUTHORITY. Such Stockholder has full legal power, authority and
right to execute and deliver, and to perform his or its obligations under, this
Agreement. This Agreement has been duly and validly executed and delivered by
such Stockholder and constitutes a valid and binding agreement of such
Stockholder enforceable against such Stockholder in accordance with its terms,
subject to (i) bankruptcy, insolvency, moratorium and other similar laws now or
hereafter in effect relating to or affecting creditors rights generally and (ii)
general principles of equity (regardless of whether considered in a proceeding
at law or in equity).
(d) CONFLICTING INSTRUMENTS. The execution and delivery of this
Agreement and the performance by such Stockholder of his or its agreements and
obligations hereunder will not result in any breach or violation of or be in
conflict with or constitute a default under any term of any agreement, judgment,
injunction, order, decree, law, regulation or arrangement to which such
Stockholder is a party or by which such Stockholder (or any of his or its
assets) is bound, except for any such breach, violation, conflict or default
which, individually or in the aggregate, would not impair or adversely affect
such Stockholder's ability to perform its obligations under this Agreement.
Section 2. RESTRICTIONS ON TRANSFER. Until the termination of this
Agreement in accordance with its terms, each Stockholder agrees not to Transfer
(or to agree to Transfer) any Shares owned of record or beneficially by such
Stockholder; provided, however, that nothing herein prohibits a Stockholder from
making a Transfer of (or agreeing to Transfer) any Shares to an Affiliate of
such Stockholder that prior to such Transfer has assumed such Stockholder's
obligations under this Agreement. "Transfer" means, with respect to any
security, the direct or indirect assignment, sale, transfer, tender, pledge,
hypothecation, or the grant, creation or sufferage of a lien or encumbrance in
or upon, or the gift, placement in trust, or the constructive sale or other
disposition of such security (including transfers by testamentary or intestate
succession) or any right, title or interest therein (including but not limited
to any right or power to vote to which the holder thereof may be entitled,
whether such right or power is granted by proxy or otherwise), or the record or
beneficial ownership thereof, the offer to make such a sale, transfer,
constructive sale or other disposition, and each agreement, arrangement or
understanding, whether or not in writing, to effect any of the foregoing. The
term "constructive sale" means a short sale with respect to such security,
entering into or acquiring an offsetting derivative contract with respect to
such security, entering into or acquiring a futures or forward contract to
deliver such security or entering into any other hedging or other derivative
transaction that has the effect of materially changing the economic benefits and
risks of ownership. The term "affiliate" is used in this Agreement as defined in
Rule 12b-2 under the Act.
Section 3. AGREEMENT TO VOTE. Until the termination of this Agreement in
accordance with its terms, each Stockholder hereby irrevocably and
unconditionally agrees to vote or to cause to be voted all of the Shares, to the
extent the Shares carry the right to vote thereon, at any annual or special
meeting of stockholders of Xxxxxx where any such proposal is submitted, and in
connection with any written consent of stockholders (including, without
limitation, any vote or consent of any class or series of stockholders to which
such Stockholder belongs), (a) in favor of the Xxxxxx Proposals and (b) against
(i) approval of any proposal made in opposition to or in competition with the
transactions contemplated by the Asset Purchase Agreement, (ii) any merger,
consolidation, sale of assets, business combination, share exchange,
reorganization or recapitalization of Xxxxxx or any of its subsidiaries, with or
involving any party other than as contemplated by the Asset Purchase Agreement,
(iii) any liquidation or winding up of Xxxxxx, (iv) any extraordinary dividend
by Xxxxxx, (v) any change in the capital structure of Xxxxxx (other than
pursuant to the Asset Purchase Agreement) and (vi) any other action that (x) may
reasonably be expected to impede, interfere with, delay, postpone or attempt to
discourage the consummation of the Purchase or any other Contemplated
Transaction or result in a breach of any of the covenants, representations,
warranties or other obligations or agreements of Xxxxxx under the Asset Purchase
Agreement which would materially and adversely affect Abiliti or Xxxxxx or their
respective abilities to consummate the Purchase or any other Contemplated
Transaction and (y) if Section 4 does not apply for any reason, Abiliti has
identified its objection in a writing delivered to each Stockholder.
Section 4. GRANTING OF PROXY. In furtherance of the terms and provisions of
this Agreement, each Stockholder hereby grants an irrevocable proxy (subject to
Section 9(b)), coupled with an interest, to each of the President and the
Secretary of Abiliti, for the sole purpose to vote all of the Shares
beneficially owned by such Stockholder in favor of the Xxxxxx Proposals and in
accordance with the provisions of Section 3. Each Stockholder hereby approves of
each and every action taken by the President or the Secretary of Abiliti
pursuant to the foregoing proxy. Notwithstanding the foregoing, if requested by
Abiliti, each Stockholder will execute and deliver applicable proxy material in
furtherance of the provisions of Section 3 and this Section 4.
Section 5. INVALID PROVISIONS. If any provision of this Agreement shall be
invalid or unenforceable under applicable law, such provision shall be
ineffective to the extent of such invalidity or unenforceability only, without
it affecting the remaining provisions of this Agreement.
Section 6. INTENTIONALLY OMITTED.
Section 7. SPECIFIC PERFORMANCE. The parties hereto agree that the failure
for any reason of a Stockholder to perform any of his or its agreements or
obligations under this Agreement would cause irreparable harm or injury to
Abiliti with respect to which money damages would not be an adequate remedy.
Accordingly, each Stockholder agrees that, in seeking to enforce this Agreement
against such Stockholder, Abiliti shall be entitled to specific performance and
injunctive and other equitable relief in addition to any other remedy available
at law, equity or otherwise.
Section 8. GOVERNING LAW; SUBMISSION TO JURISDICTION. THE AGREEMENT SHALL
BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE DOMESTIC LAWS
OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT
OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF DELAWARE OR ANY OTHER
JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION
OTHER THAN THE STATE OF DELAWARE. EACH OF THE PARTIES HERETO IRREVOCABLY AGREES
THAT ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR FOR
RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT HEREOF BROUGHT BY ANY
OTHER PARTY HERETO OR ITS SUCCESSORS OR ASSIGNS SHALL BE BROUGHT AND DETERMINED
IN THE STATE AND FEDERAL COURTS OF THE STATE OF DELAWARE, AND EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY SUBMITS WITH REGARD TO ANY SUCH ACTION OR
PROCEEDING FOR ITSELF AND IN RESPECT TO ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, TO THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH
OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT, BY
WAY OF MOTION, AS A DEFENSE, COUNTERCLAIM OR OTHERWISE, IN ANY ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT, ANY CLAIM (A) THAT IT IS NOT
PERSONALLY SUBJECT TO THE JURISDICTION OF THE AFORESAID COURTS FOR ANY REASON,
(B) THAT IT OR ITS PROPERTY IS EXEMPT OR IMMUNE FROM JURISDICTION OF ANY SUCH
COURT OR FROM ANY LEGAL PROCESS COMMENCED IN SUCH COURTS (WHETHER THROUGH
SERVICE OF JUDGMENT, EXECUTION OF JUDGMENT, OR OTHERWISE), AND (C) TO THE
FULLEST EXTENT PERMITTED BY THE APPLICABLE LAW, THAT (I) THE SUIT, ACTION OR
PROCEEDING IN SUCH COURTS IS BROUGHT IN AN INCONVENIENT FORUM, (II) THE VENUE OF
SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER AND (III) THIS AGREEMENT, OR THE
SUBJECT MATTER HEREOF, MAY NOT BE ENFORCED IN OR BY SUCH COURTS.
Section 9. AMENDMENTS; TERMINATION.
(a) This Agreement may not be modified, amended, altered or
supplemented, except upon the execution and delivery of a written agreement
executed by all parties hereto.
(b) Except for provisions of this Agreement that by their terms
survive the termination hereof, the provisions of this Agreement (including
without limitation Sections 2, 3 and 4) shall terminate upon the earliest to
occur of (i) the consummation of the Contemplated Transactions, (ii) the
termination of the Asset Purchase Agreement in accordance with its terms, and
(iii) March 31, 2003.
Section 10. ADDITIONAL SHARES. If, after the date hereof, any Stockholder
acquires beneficial or record ownership of any additional shares of capital
stock of Xxxxxx (any such shares, "Additional Shares"), including, without
limitation, upon exercise of any option, warrant or right to acquire shares of
capital stock of Xxxxxx or through any stock dividend or stock split, the
provisions of this Agreement applicable to the Shares shall thereafter be
applicable to such Additional Shares as if such Additional Shares had been
Shares as of the date hereof. The provisions of the immediately preceding
sentence shall be effective with respect to Additional Shares without action by
any person or entity immediately upon the acquisition by any Stockholder of
beneficial ownership of such Additional Shares.
Section 11. SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective legal successors (including, in the case of any individual
Stockholder or any other individual, any executors, administrators, estates,
legal representatives and heirs of such Stockholder or such individual) and
permitted assigns; provided, however, that, except as otherwise provided in this
Agreement, no party may assign, delegate or otherwise transfer any of its rights
or obligations under this Agreement (other than to an Affiliate), without (a)
the consent of Abiliti, in the case of any Stockholder, or (b) the consent of
the Stockholders, in the case of Abiliti. Without limiting the scope or effect
of the restrictions on Transfer set forth in Section 2, each Stockholder agrees
that this Agreement and the obligations hereunder shall attach to the Shares and
shall be binding upon any person or entity to which legal or beneficial
ownership of such Shares shall pass, whether by operation of law or otherwise.
Section 12. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which, when taken together, shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party. The parties also expressly agree
that this Agreement may be executed by original signatures delivered by
facsimile.
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