1
EXHIBIT 10.55
STOCKHOLDERS PROXY AGREEMENT
STOCKHOLDERS PROXY AGREEMENT (this "Agreement"), dated as of June 12, 2000,
among CEREUS TECHNOLOGY PARTNERS, INC., a Delaware corporation ("Cereus"), and
each other person and entity listed on the signature pages hereof (each, a
"Stockholder").
W I T N E S S E T H:
WHEREAS, as of the date hereof each Stockholder owns (either beneficially
or of record) the number of shares of common stock, par value $0.01 per share
("Company Common Stock"), of Eltrax Systems, Inc., a Minnesota corporation (the
"Company"), set forth opposite such Stockholder's name on Exhibit A hereto (all
such shares of Company Capital Stock owned by the Stockholders and any shares of
Company Capital Stock hereafter acquired by the Stockholders prior to the
termination of this Agreement being referred to herein as the "Shares");
WHEREAS, Cereus and the Company, among others, propose to enter into an
Agreement and Plan of Merger and Reorganization, dated as of the date hereof (as
the same may be amended from time to time, the "Merger Agreement"; capitalized
terms herein not otherwise defined herein shall have the meanings ascribed
thereto in the Merger Agreement), which provides, upon the terms and subject to
the conditions thereof, for the merger of a subsidiary of the Company with and
into Cereus (the "Merger"); and
WHEREAS, as a condition to the willingness of Cereus to enter into the
Merger Agreement, Cereus has requested that each Stockholder agree, and, in
order to induce Cereus to enter into the Merger Agreement, each Stockholder has
agreed, to grant Cereus proxies to vote such Stockholder's Shares;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements and covenants set forth herein and in the Merger Agreement, the
parties hereto agree as follows:
ARTICLE I
TRANSFER AND VOTING OF SHARES
SECTION 1.01 Transfer of Shares. During the term of this Agreement, and
except as otherwise provided herein, each Stockholder shall not (a) sell, pledge
or otherwise dispose of any of its Shares if such transaction would result in
the Stockholder no longer having the power to vote or cause to be voted the
Shares, (b) deposit its Shares into a voting trust or enter into a voting
agreement or arrangement with respect to such Shares or grant any proxy with
respect thereto or (c) enter into any contract, option or other arrangement or
undertaking with respect to the direct or indirect acquisition or sale,
assignment, transfer or other disposition of any of the Company Capital Stock if
such transaction would result in the Stockholder no longer having the power to
vote or cause to be voted the Shares.
SECTION 1.02 Voting of Shares; Further Assurances. (a) Each Stockholder,
by this Agreement, with respect to those Shares that it owns of record, does
hereby constitute and appoint Cereus, or any nominee of Cereus, with full power
of substitution, during and for the term of this Agreement, as its true and
lawful attorney and proxy, for and in its name, place and stead, to vote each of
such Shares as its proxy, at every annual, special or adjourned meeting of the
stockholders of the Company (including the right to sign its name (as
stockholder) to any consent, certificate or other document relating to the
Company that the law of the State of Minnesota may permit or require) (i) in
favor of the adoption of the Merger Agreement and approval of the Merger and the
other transactions contemplated by the Merger Agreement, (ii) against any
proposal for any recapitalization, merger, sale of assets or other business
combination between the Company and any person or entity (other than the Merger)
or any other action or agreement that would result in a breach of any covenant,
representation or warranty or any other
2
obligation or agreement of the Company under the Merger Agreement or which could
result in any of the conditions to the Company's obligations under the Merger
Agreement not being fulfilled, and (iii) in favor of any other matter relating
to consummation of the transactions contemplated by the Merger Agreement. Each
Stockholder further agrees to cause the Shares owned by it beneficially to be
voted in accordance with the foregoing. Each Stockholder acknowledges receipt
and review of a copy of the Merger Agreement.
(b) Each Stockholder shall perform such further acts and execute such
further documents and instruments as may reasonably be required to vest in
Cereus the power to carry out the provisions of this Agreement.
(c) Nothing contained in this Agreement shall be deemed to restrict a
Stockholder who is also a director of the Company from taking actions in his
capacity as a director as may be permitted under the Merger Agreement.
SECTION 1.03 Term of Agreement. This Agreement shall be effective as of
the date hereof and shall expire on the earlier of (a) the Effective Time and
(b) the date of the termination of the Merger Agreement pursuant to its terms.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS
Each Stockholder, severally and not jointly, hereby represents and warrants
to Cereus as follows:
SECTION 2.01 Due Organization, Etc. Such Stockholder (if it is a
corporation, partnership or other legal entity) is duly organized and validly
existing under the laws of the jurisdiction of its organization. Such
Stockholder has full power and authority (corporate or otherwise) to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
action (corporate or otherwise) on the part of such Stockholder. This Agreement
has been duly executed and delivered by or on behalf of such Stockholder and,
assuming its due authorization, execution and delivery by Cereus, constitutes a
legal, valid and binding obligation of such Stockholder, enforceable against
such Stockholder in accordance with its terms, subject to the effect of any
applicable bankruptcy, reorganization, insolvency, moratorium or similar laws
affecting creditors' rights generally and subject, as to enforceability, to the
effect of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
SECTION 2.02 No Conflicts; Required Filings and Consents. (a) The
execution and delivery of this Agreement by such Stockholder do not, and the
performance of this Agreement by such Stockholder will not, (i) conflict with or
violate the Certificate of Incorporation or By-Laws or similar organizational
documents of such Stockholder (in the case of a Stockholder that is a
corporation, partnership or other legal entity), (ii) conflict with or violate
any law, rule, regulation, order, judgment or decree applicable to such
Stockholder or by which it or any of its properties is bound or affected, or
(iii) result in any breach of or constitute a default (or an event that with
notice or lapse of time or both would become a default) under, or give to others
any rights of termination, amendment, acceleration or cancellation of, or result
in the creation of a lien or encumbrance on any of the property or assets of
such Stockholder or (if such Stockholder is a corporation) any of its
subsidiaries pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which such Stockholder is a party or by which such Stockholder or any of its
properties is bound or affected, except for any such breaches, defaults or other
occurrences that would not cause or create a material risk of non-performance or
delayed performance by such Stockholder of its obligations under this Agreement.
(b) The execution and delivery of this Agreement by such Stockholder do
not, and the performance of this Agreement by such Stockholder will not, require
any consent, approval, authorization or permit of, or filing with or
notification to, any governmental or regulatory authority, domestic or foreign,
except
2
3
(i) for applicable requirements, if any, of the Exchange Act, and the HSR Act
and (ii) where the failure to obtain such consents, approvals, authorizations or
permits, or to make such filings or notifications, would not prevent or delay
the performance by such Stockholder of its obligations under this Agreement.
SECTION 2.03 Title to Shares. Other than to the extent described in
Exhibit A hereto, such Stockholder is the record or beneficial owner of its
Shares free and clear of any proxy or voting restriction other than pursuant to
this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF CEREUS
Cereus hereby represents and warrants to each Stockholder as follows:
SECTION 3.01 Due Organization, Etc. Cereus is a corporation duly organized
and validly existing under the laws of the State of Delaware. Cereus has all
necessary corporate power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby by Cereus have been duly authorized by all necessary corporate action on
the part of Cereus. This Agreement has been duly executed and delivered by
Cereus and, assuming its due authorization, execution and delivery by the
Stockholders, constitutes a legal, valid and binding obligation of Cereus,
enforceable against Cereus in accordance with its terms.
SECTION 3.02 No Conflict; Required Filings and Consents. (a) The execution
and delivery of this Agreement by Cereus do not, and the performance of this
Agreement by Cereus will not, (i) conflict with or violate the Certificate of
Incorporation or By-laws of Cereus, (ii) conflict with or violate any law, rule,
regulation, order, judgment or decree applicable to Cereus or by which Cereus or
any of its properties is bound or affected, or (iii) result in any breach of or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of a lien
or encumbrance on any of the property or assets of Cereus pursuant to, any note,
bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which Cereus is a party or by
which it or any of its properties is bound or affected, except for any such
breaches, defaults or other occurrences that would not cause or create a
material risk of non-performance or delayed performance by Cereus of its
obligations under this Agreement.
(b) The execution and delivery of this Agreement by Cereus do not, and the
performance of this Agreement by Cereus will not, require any consent, approval,
authorization or permit of, or filing with or notification to, any governmental
or regulatory authority, domestic or foreign, except (i) for applicable
requirements, if any, of the Exchange Act and the HSR Act and (ii) where the
failure to obtain such consents, approvals, authorizations or permits, or to
make such filings or notifications, would not prevent or delay the performance
by Cereus of its obligations under this Agreement.
3
4
ARTICLE IV
GENERAL PROVISIONS
SECTION 4.01 Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made as of the date delivered, mailed or transmitted, and shall be effective
upon receipt, if delivered personally, mailed by registered or certified mail
(postage prepaid, return receipt requested) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
changes of address) or sent by electronic transmission to the telecopier number
specified below:
(a) If to Cereus
Cereus Technology Partners, Inc.
0000 Xxxxxxxxx Xxxx
400 Northpark, Suite 1000
Attention: Chief Executive Officer
Telecopier No.: (000) 000-0000
with a copy to:
Xxxxxx & Hardin LLP
2700 International Tower
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxx, Esq.
Telecopier No.: (000) 000-0000
(b) If to a Stockholder, to such Stockholder's address set forth on Exhibit
A.
SECTION 4.02 Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 4.03 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 hereby is not affected in any manner
materially adverse to any party. 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 to the fullest extent
permitted by applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
SECTION 4.04 This Agreement constitutes the entire agreement of the
parties and supersedes all prior agreements and undertakings, both written and
oral, between the parties, or any of them, with respect to the subject matter
hereof.
SECTION 4.05 Assignment. This Agreement shall not be assigned by operation
of law or otherwise; provided, however, that Cereus may assign its rights,
interests and obligations hereunder to any successor or Cereus entity of Cereus
whose shares are registered under Section 12 of the Exchange Act (or will be so
registered at the Closing).
SECTION 4.06 Parties in Interest. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto, and nothing in this Agreement,
express or implied, is intended to or shall confer upon any person any right,
benefit or remedy of any nature whatsoever under or by reason of this Agreement.
SECTION 4.07 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and
4
5
that the parties shall be entitled to specific performance of the terms hereof,
in addition to any other remedy at law or in equity.
SECTION 4.08 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO
CONTRACTS EXECUTED AND TO BE PERFORMED ENTIRELY WITHIN THAT STATE. CEREUS AND
EACH OF THE STOCKHOLDERS EACH HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF
ANY GEORGIA STATE OR FEDERAL COURT SITTING IN THE CITY OF ATLANTA, GEORGIA, IN
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND
CEREUS AND EACH OF THE STOCKHOLDERS HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN
RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH GEORGIA
STATE COURT OR SUCH FEDERAL COURT. CEREUS AND EACH OF THE STOCKHOLDERS EACH
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE
DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR
PROCEEDING.
SECTION 4.09 Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date first written above.
CEREUS TECHNOLOGY PARTNERS, INC.
By: /s/ XXXXXX X. XXXX
----------------------------------
Name: Xxxxxx X. Xxxx
Title: Chief Executive Officer
STOCKHOLDERS:
/s/ XXXXXXX X. X'XXXXXX
------------------------------------
XXXXXXX X. X'XXXXXX
/s/ XXXXX X. XXXXXXX
------------------------------------
XXXXX X. XXXXXXX
/s/ XXXXXXX X. XXXX
------------------------------------
XXXXXXX X. DIRK
/s/ XXXXXXX X. XXXXXXX
------------------------------------
XXXXXXX X. XXXXXXX
/s/ XXXXXXX X. XXXXXX
------------------------------------
XXXXXXX X. XXXXXX
5
6
EXHIBIT A
LIST OF STOCKHOLDERS
NUMBER OF SHARES
OF COMPANY COMMON STOCK
OWNED BENEFICIALLY
NAME AND ADDRESS OF STOCKHOLDER AND OF RECORD
------------------------------- -----------------------
Xxxxxxx X. X'Xxxxxx......................................... 1,559,858
000 Xxxxxxxx Xxxxxxx Xxx. 000
Xxxxxxx, Xxxxxxx 00000
Xxxxx X. Xxxxxxx............................................ 101,250
00000 Xxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Xxxxxxx X. Xxxx............................................. 373,825
Xxxx Group, Inc.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Xxxxxxx X. Xxxxxxx.......................................... 146,250
Pointe Communication, Inc.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Xxxxxxx X. Xxxxxx........................................... 354,700
The Springs Company
X.X. Xxxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
