EXHIBIT 10.02
EXECUTION COPY
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as of August 7, 2006, by and
among Universal Computer Systems Holding, Inc., a Delaware corporation
("Parent"), Racecar Acquisition Co., an Ohio corporation and a newly-formed,
indirect wholly-owned subsidiary of Parent ("Acquisition Sub"), and the
stockholder listed on Schedule I hereto (the "Shareholder").
W I T N E S S E T H:
WHEREAS, prior to the execution and delivery of this Agreement, an
Agreement and Plan of Merger (as such agreement may be amended from time to
time, the "Merger Agreement") has been entered into by and among Parent,
Acquisition Sub and the Xxxxxxxx and Xxxxxxxx Company, an Ohio corporation (the
"Company"), pursuant to which Acquisition Sub will merge with and into the
Company, with the Company continuing as the surviving corporation (the
"Merger"); and
WHEREAS, as a condition to, and in consideration for, Parent's and
Acquisition Sub's willingness to enter into the Merger Agreement and to
consummate the transactions contemplated thereby, Parent and Acquisition Sub
have required that the Shareholder enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound, hereby agree as follows:
Section 1. DEFINITIONS. For purposes of this Agreement:
"Company Securities" means, collectively, the Class A common
stock of the Company, no par value per share, and the Class B common
stock of the Company, no par value per share.
"Proxy Shares" means the Company Securities set forth next to
Shareholder's name on Schedule III.
"Shareholder Shares" means (i) the Existing Securities (as
defined in Section 5(a)(i) hereof) set forth on Schedule I hereto, (ii)
any shares of Company Securities distributed prior to the termination
of this Agreement in respect of the Shareholder's Shares by reason of a
stock dividend, split-up, recapitalization, reclassification,
combination, merger, exchange of shares or otherwise and (iii) any
other shares of the Company Securities of which the Shareholder
acquires ownership, either directly or indirectly, after the date
hereof and prior to the Effective Time.
Capitalized terms used herein but not otherwise defined herein shall
have the meanings ascribed to them in the Merger Agreement.
Section 2. AGREEMENT TO VOTE SHARES.
Until the termination of this Agreement in accordance with the terms
hereof, the Shareholder shall, at any meeting of the holders of any
class of Company Securities, however such meeting is called and
regardless of whether such meeting is a special or annual meeting of
the stockholders of the Company, and at any postponement or adjournment
thereof, and in connection with any written consent of the stockholders
of the Company, vote, or cause to be voted, the Shareholder Shares and
the Proxy Shares, (1) in favor of the Merger and the adoption of the
Merger Agreement, the approval of the terms thereof and each of the
other actions contemplated by the Merger Agreement and this Agreement
and any actions required in furtherance thereof and hereof and (2)
against the following actions (other than the Merger and the
transactions contemplated by the Merger Agreement): (i) any action
which is prohibited by the Merger Agreement or which is intended, or
could reasonably be expected, to prevent, impede, interfere with,
delay, postpone, discourage or materially adversely affect the
contemplated economic benefits to Parent or Acquisition Sub of the
Merger or the transactions contemplated hereby or by the Merger
Agreement; or (ii) approval of any Company Acquisition Proposal.
Section 3. REVOCATION OF PROXIES; RELIANCE.
(a) The Shareholder hereby represents that any proxies heretofore given
in respect of the Shareholder Shares are not irrevocable, and that any such
proxies are hereby revoked.
(b) The Shareholder understands and acknowledges that Parent and
Acquisition Sub have entered into the Merger Agreement in reliance upon the
Shareholder's execution and delivery of this Agreement. The Shareholder hereby
affirms that this Agreement is given in connection with the execution of the
Merger Agreement and agrees to the duties of the Shareholder under this
Agreement.
Section 4. COVENANTS OF THE SHAREHOLDER. The Shareholder hereby agrees
and covenants that:
(a) RESTRICTION ON TRANSFERS. Except as may otherwise be agreed to by
Parent in writing, the Shareholder shall not (i) transfer (which term shall
include, without limitation, any sale, gift, pledge, hypothecation or other
disposition), or consent to any transfer of, any or all of the Shareholder
Shares, or any interest therein if such transfer would result in the Shareholder
no longer having the power to vote, or cause to be voted, the Shareholder
Shares; (ii) enter into any
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contract, option, derivative, hedging or other agreement or understanding with
respect to any such transfer of any or all of the Shareholder Shares, or any
interest therein; (iii) permit to exist any lien of any nature whatsoever with
respect to any or all of the Shareholder Shares; or (iv) convert or exchange, or
take any action which would result in conversion or exchange of, any of the
Shareholder Shares, including without limitation conversion or exchange of any
shares of Class B common stock into shares of Class A common stock.
(b) RESTRICTIONS ON PROXIES AND VOTING ARRANGEMENTS. Except as otherwise
provided herein, the Shareholder shall not (i) grant any proxy,
power-of-attorney or other authorization in or with respect to the Shareholder
Shares or (ii) deposit any of the Shareholder Shares into a voting trust or
enter into a voting agreement or arrangement with respect to any of the
Shareholder Shares.
(c) STANDSTILL. The Shareholder agrees that he will comply with the
prohibitions of Section 7.03 of the Merger Agreement that are applicable to the
Company as if they were applicable to him, and that he will not, except as
specifically authorized by, and on behalf of, the Company, take any of the
actions permitted by Section 7.03 to be taken by the Company.
(d) STOP TRANSFER. The Shareholder shall not request that the Company
register any transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Shareholder's Existing
Securities (as defined in Section 5(a)(i) hereof), unless such transfer is made
in compliance with this Agreement.
(e) WAIVER OF APPRAISAL RIGHTS. The Shareholder hereby irrevocably and
unconditionally waives, and agrees to prevent the exercise of, any rights of
appraisal or rights to dissent in connection with the Merger that the
Shareholder may directly or indirectly have.
(f) NO INCONSISTENT ARRANGEMENTS. The Shareholder shall not take any
other action that would in any way prevent, impede, restrict, limit, delay or
interfere with the performance of any of the Shareholder's obligations hereunder
or the transactions contemplated hereby or by the Merger Agreement.
Section 5. REPRESENTATIONS AND WARRANTIES.
(a) The Shareholder hereby represents and warrants to Parent and
Acquisition Sub as follows:
(i) OWNERSHIP OF SECURITIES. On the date hereof, the
Shareholder owns, directly or indirectly, or has the power to direct
the voting of, the Company Securities set forth next to the his name on
Schedule I hereto (the "EXISTING SECURITIES"), and the Existing
Securities are owned of record by the Shareholder or certain of the
Shareholder's
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subsidiaries or nominees (collectively, the "RECORD HOLDERS"). On the
date hereof, the Existing Securities constitute all of the shares of
voting capital stock of the Company owned of record or otherwise by the
Shareholder or as to which the Shareholder has the power to direct the
voting of the shares. Each Record Holder has sole voting power and sole
power to issue instructions with respect to the matters set forth in
Section 2 hereof, sole power of disposition, sole power of conversion,
sole power (if any) to demand appraisal rights and sole power to agree
to all of each of the matters set forth in this Agreement, in each case
with respect to all of each such Record Holder's Existing Securities
with no limitations, qualifications or restrictions on such rights,
subject to applicable securities laws and the terms of this Agreement.
(ii) Shareholder has voting power with respect to the Proxy
Shares to the extent set forth in existing agreements in respect
thereof.
(iii) In the event of any dividend or distribution, or any
change in the capital structure of the Company by reason of any
non-cash dividend, split-up, recapitalization, combination, exchange of
securities or the like, the term "Existing Securities" shall refer to
and include the Existing Securities as well as all such dividends and
distributions of securities and any securities into which or for which
any or all of the Existing Securities may be changed, exchanged or
converted.
(iv) POWER; BINDING AGREEMENT. The Shareholder has the power
(or, if applicable, corporate power) and authority to enter into and
perform all of the Shareholder's obligations hereunder. The execution,
delivery and performance of this Agreement by the Shareholder will not
violate any other agreement to which the he is a party including,
without limitation, proxy arrangement or voting trust. This Agreement
has been duly and validly executed and delivered by the Shareholder and
constitutes a valid and binding agreement of the Shareholder,
enforceable against him in accordance with its terms, except that (A)
such enforcement may be subject to applicable bankruptcy, insolvency,
moratorium, or other similar laws, now or hereafter in effect,
affecting creditors' rights generally and (B) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought. There is no beneficiary
or holder of a voting trust certificate or other interest of any trust
of which the Shareholder is a trustee whose consent is required for the
execution and delivery of this Agreement or the compliance by the
Shareholder with the terms hereof.
(v) NO CONFLICTS. None of the execution and delivery of this
Agreement by the Shareholder, the consummation by the Shareholder of
the transactions contemplated hereby or compliance by the Shareholder
with any of the provisions hereof shall (A) result in a violation or
breach of, or constitute (with or without due notice or lapse of time
or both) a default under any agreement or other obligation to which the
he is a party or by which he is bound, or (C) violate any order,
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writ, injunction, decree, judgment, order, statute, arbitration award,
rule or regulation applicable to the him or any of his properties or
assets.
(vi) NO LIENS. Except as established hereby, the Existing
Securities are now and, at all times during the term hereof, will be
held by the Shareholder, or by a nominee or custodian for the benefit
of the Shareholder, free and clear of all Liens, proxies, voting trusts
or agreements, understandings or arrangements whatsoever.
(b) Parent and Acquisition Sub jointly and severally hereby represent
and warrant to the Shareholder as follows:
(i) POWER; BINDING AGREEMENT. Each of Parent and Acquisition
Sub has the corporate power and authority to enter into and perform all
of its obligations under this Agreement. This Agreement has been duly
and validly executed and delivered by each of Parent and Acquisition
Sub and constitutes a valid and binding agreement of each of Parent and
Acquisition Sub, enforceable against each of them in accordance with
its terms, except as the enforceability thereof may be limited by (a)
applicable bankruptcy, insolvency, moratorium, reorganization or
similar laws in effect that affect the enforcement of creditors rights
generally or (b) general principles of equity, whether considered in a
proceeding at law or in equity.
(ii) NO CONFLICTS. None of the execution and delivery of this
Agreement by Parent or Acquisition Sub, the consummation by Parent or
Acquisition Sub of the transactions contemplated hereby or compliance
by Parent or Acquisition Sub with any of the provisions hereof shall
(A) result in a violation or breach of, or constitute (with or without
due notice or lapse of time or both) a default under any agreement or
other obligation to which Parent or Acquisition Sub is a party or by
which Parent or Acquisition Sub is bound, or (C) violate any order,
writ, injunction, decree, judgment, order, statute, arbitration award,
rule or regulation applicable to Parent or Merger Sub or any of Parent
or Merger Sub's properties or assets.
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Section 6. TERMINATION. This Agreement and the covenants,
representations, warranties, and agreements contained herein shall automatically
terminate upon the earliest to occur of (i) the termination of the Merger
Agreement in accordance with the terms thereof, (ii) the mutual consent of
Parent and the Shareholder, or (iii) the Merger Effective Time. Upon any
termination of this Agreement, this Agreement shall thereupon become void and of
no further force and effect, and there shall be no liability in respect of this
Agreement or of any transactions contemplated hereby or by the Merger Agreement
on the part of any party hereto or any of its directors, officers, partners,
stockholders, employees, agents, advisors, representatives or affiliates;
provided, however, that nothing herein shall relieve any party from any
liability for such party's willful breach of this Agreement prior to
termination.
Section 7. MISCELLANEOUS.
(a) NON-SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations, warranties, covenants and agreements contained herein and in
any certificate delivered pursuant hereto by any Person shall terminate at the
Merger Effective Time or upon the termination of the Merger Agreement pursuant
to the terms thereof, as the case may be.
(b) NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given or made (and
shall be deemed to have been duly given or made upon receipt) by delivery in
person, by facsimile (with a confirmatory copy sent by overnight courier), by
overnight courier service or by registered or certified mail (postage prepaid,
return receipt requested) to the respective parties at the following addresses
(or at such other address for a party as shall be specified in a notice given in
accordance with this Section 7(b)):
if to Parent or Acquisition Sub:
Universal Computer Systems Holding, Inc.
0000 Xxxxxxxxx
Xxxxxxx, XX 00000
Telecopier No: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxx X. Xxxxx
Xxxxxxx X. Xxxxxxxx
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if to the Shareholder, to Shareholder and counsel as stated on Schedule III
hereto.
(c) 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 Merger 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 in a mutually acceptable manner in order that the Merger be
consummated as originally contemplated to the fullest extent possible.
(d) ENTIRE AGREEMENT. This Agreement and the Merger Agreement
constitute the entire agreement among the parties hereto with respect to the
subject matter hereof and supersede all prior agreements and undertakings, both
written and oral, among the parties, or any of them, with respect to the subject
matter hereof.
(e) 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, provided that, except as provided herein, no party may assign,
delegate or otherwise transfer any of its rights or obligations hereunder, in
whole or in part, by operation of law or otherwise by any of the parties,
without the consent of the other parties hereto.
(f) PARTIES IN INTEREST. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto, and nothing herein, express or
implied, is intended to or shall confer upon any other Person any right, benefit
or remedy of any nature whatsoever under or by reason of this Agreement.
(g) 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 that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or equity.
(h) GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with the laws of the State of Ohio(regardless of the laws that
might otherwise govern under applicable principles of conflicts of law) as to
all matters, including but not limited to matters of validity, construction,
effect, performance and remedies.
(i) CONSENT TO JURISDICTION.
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(A) Each of the parties hereto hereby irrevocably submits to the
exclusive jurisdiction of the courts of the State of Ohio and the United States
District Court for the State of Ohio, for the purpose of any action or
proceeding arising out of or relating to this Agreement and each of the parties
hereto hereby irrevocably agrees that all claims in respect to such action or
proceeding may be heard and determined exclusively in any Ohio state or federal
court. Each of the parties hereto hereby agrees that a final judgment in any
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
(B) Each of the parties hereto hereby irrevocably consents to the
service of the summons and complaint and any other process in any other action
or proceeding relating to the transactions contemplated hereby, on behalf of
itself or its property, by personal delivery of copies of such process to such
party. Nothing in this Section 7(i) shall affect the right of any party to serve
legal process in any other manner permitted by law.
(j) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE ACTIONS OF PARENT OR THE COMPANY IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE AND ENFORCEMENT THEREOF.
(k) FURTHER ASSURANCES. From time to time, at the request of Parent or
Acquisition Sub, the Shareholder shall execute and deliver to Parent and
Acquisition Sub or cause other Record Holders to execute and deliver to Parent
and Acquisition Sub such additional letters or instruments to comply with
applicable laws and stock exchange rules as Parent or Acquisition Sub may
reasonably request in connection with the Shareholder's obligations under this
Agreement.
(l) DESCRIPTIVE HEADINGS; INTERPRETATION. The descriptive headings
herein are inserted for convenience of reference only and are not intended to be
part of or to affect the meaning or interpretation of this Agreement.
(m) AMENDMENT, MODIFICATION AND WAIVER. This Agreement may not be
amended, modified or waived except by an instrument or instruments in writing
signed and delivered on behalf of the party hereto against whom such amendment,
modification or waiver is sought to be entered.
(n) COUNTERPARTS. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
and delivered shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
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IN WITNESS WHEREOF, Parent, Acquisition Sub and the Shareholder have
caused this Agreement to be duly executed as of the day and year first above
written.
UNIVERSAL COMPUTER SYSTEMS
HOLDING, INC.
By: /s/ X.X. Xxxxxxxx
-----------------------
Name: X.X. Xxxxxxxx
Title: Chairman & CEO
RACECAR ACQUISITION CO.
By: /s/ X.X. Xxxxxxxx
-----------------------
Name: X.X. Xxxxxxxx
Title: Chairman & CEO
XXXXXXX X. X'XXXXX
By: /s/ Xxxxxxx X. X'Xxxxx
-----------------------
Name: Xxxxxxx X. X'Xxxxx
Title: Chief Executive
Officer
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SCHEDULE I
-------------------------------------- ----------------------------------
SHAREHOLDER CLASS A COMMON STOCK
-------------------------------------- ----------------------------------
-------------------------------------- ----------------------------------
Xxxxxxx X. X'Xxxxx 140,000
-------------------------------------- ----------------------------------
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SCHEDULE II
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CLASS A COMMON STOCK
577,290
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SCHEDULE III
Address for notices to the Shareholder:
Xxxxxxx X. X'Xxxxx
The Xxxxxxxx and Xxxxxxxx Company
Xxx Xxxxxxxx Xxx
Xxxxxx, Xxxx 00000
Telecopier No: (000) 000-0000
With copies to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxxx, Esq.
Xxxxx Xxxx, Jr., Esq.
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