EXHIBIT 2.5
VOTING AGREEMENT
This Voting Agreement (this "AGREEMENT") is made and entered into as of
September 30, 2004 by and among VENTURI PARTNERS, INC., a Delaware corporation
(the "COMPANY"), and MatlinPatterson Global Opportunities Partners, L.P. (the
"Stockholder")
PRELIMINARY STATEMENTS
The Company, VTP, Inc., Venturi Technology Partners, LLC, Comsys
Information Technology Services, Inc., Comsys Holding, Inc. and certain
stockholders of Comsys Holding, Inc. have entered into an Agreement and Plan of
Merger dated as of July 19, 2004 (as the same may be amended from time to time,
the "MERGER AGREEMENT"), pursuant to which, upon the terms and subject to the
conditions thereof, VTP, Inc. will be merged with and into Comsys Holding, Inc.
and Comsys Holding, Inc. will be the surviving entity (the "MERGER").
As a condition to the consummation of the transactions contemplated by the
Merger Agreement, Comsys Holding, Inc. has required that the Company and the
Stockholder, and the Company and the Stockholder are willing to, enter into this
voting agreement with respect to nominations to the board of directors of the
Company at and after the effectiveness of the Merger.
Capitalized terms used but not defined herein have the meanings given in
the Merger Agreement.
Now, therefore, for good, valuable and binding consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto, intending
to be legally bound hereby, agree as follows:
STATEMENT OF AGREEMENT
ARTICLE I
DEFINITIONS
Section 1.1. Definitions.
"AFFILIATE" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Securities and Exchange Commission thereunder, all as the
same shall be in effect at the time.
"AGREEMENT" has the meaning given in the preamble to this Agreement.
"BOARD OF DIRECTORS" means the board of directors of the Company.
"COMMON STOCK" means the common stock of the Company now or hereafter
authorized to be issued.
"COMPANY" has the meaning given in the preamble to this Agreement.
"DIRECTOR" means a member of the Board of Directors.
"MERGER" has the meaning given in the preliminary statements to this
Agreement.
"MERGER AGREEMENT" has the meaning given in the preliminary statements to
this Agreement.
"NOMINATING COMMITTEE" means the Nominating Committee of the Board of
Directors established pursuant to and in accordance with the Bylaws of the
Company as in effect from time to time.
"SHARES" means shares of Common Stock.
"SPECIAL VOTING PERIOD" means the period commencing immediately after the
Effective Time (as defined in the Certificate of Incorporation) and ending on
the third anniversary of the Effective Time.
"STOCKHOLDER" means MatlinPatterson Global Opportunities Partners, L.P.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations and Warranties of the Company. The Company
hereby represents and warrants to the other parties hereto as follows: The
Company has all requisite corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. The execution
and delivery by the Company of this Agreement, and the consummation by the
Company of the transactions contemplated hereby, have been duly authorized by
all necessary corporate action on the part of the Company. This Agreement has
been duly executed and delivered by the Company and constitutes a valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms. No consent, approval, order or authorization of, or
registration, declaration or filing with, any court, administrative agency or
commission or other governmental authority or instrumentality, domestic or
foreign, is required by, or with respect to, the Company in connection with the
execution and delivery of this Agreement by the Company or the consummation by
the Company of the transactions contemplated hereby. The execution and delivery
of this Agreement by the Company and the consummation of the transactions
contemplated hereby by the Company does not conflict with, or result in a breach
of, any law or regulation of any governmental authority applicable to the
Company or any material agreement to which the Company is a party.
Section 2.2. Representations and Warranties of the Stockholder. The
Stockholder hereby represents and warrants to the Company as follows:
(a) Authority. The Stockholder has all requisite corporate,
partnership or limited liability company power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. The execution
and delivery by the Stockholder of this Agreement, and the consummation by the
Stockholder of the transactions contemplated hereby, have been duly authorized
by all necessary corporate, partnership or limited liability company
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action on the part of the Stockholder. This Agreement has been duly executed and
delivered by the Stockholder and constitutes a valid and binding obligation of
the Stockholder, enforceable against the Stockholder in accordance with its
terms. No consent, approval, order or authorization of, or registration,
declaration or filing with, any court, administrative agency or commission or
other governmental authority or instrumentality, domestic or foreign, is
required by, or with respect to, the Stockholder in connection with the
execution and delivery of this Agreement by the Stockholder or the consummation
by the Stockholder of the transactions contemplated hereby. The execution and
delivery of this Agreement by the Stockholder and the consummation of the
transactions contemplated hereby by the Stockholder does not conflict with, or
result in a breach of, any law or regulation of any governmental authority
applicable to the Stockholder or any material agreement to which the Stockholder
is a party.
(b) Shares. As of the Effective Time, the Stockholder is the record
and beneficial owner of the number of Shares set forth across from such
Stockholder's name on Schedule 2.2(b).
ARTICLE III
VOTING OF SHARES; CERTAIN COMPANY ACTIONS
Section 3.1. Voting of Shares; Company Actions.
(a) From and after the date hereof and until the termination of the
Special Voting Period, the Stockholder shall vote all Shares owned or controlled
by such Stockholder, and shall take all other necessary or desirable actions
within such Stockholder's control (including, if permitted, attendance at
meetings in person or by proxy for purposes of obtaining a quorum and, if
permitted, execution of written consents in lieu of meetings), so that the
nominees recommended by the Nominating Committee for election to the Board of
Directors are elected to serve on the Board of Directors, and to otherwise
effectuate the provisions of this Agreement.
(b) From and after the date hereof, the Company shall take all
necessary or desirable actions within its control (including calling special
board and stockholder meetings) to effectuate the provisions of this Agreement.
Section 3.2. Termination of Voting Obligations. From and after the
termination of the Special Voting Period, the provisions of Section 3.1 shall
terminate and be of no further force or effect, and the Stockholder shall
thereafter have no obligation under this Agreement with respect to (i) the
voting of any of its shares of Common Stock or (ii) the taking of any actions
described in Section 3.1 with respect to the composition of the Board of
Directors.
ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 4.1. Entire Agreement. This Agreement, together with the Schedule
hereto, constitutes the entire agreement and understanding of the parties in
respect of the subject matter hereof and supersedes all prior understandings,
agreements or representations by or among the
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parties, written or oral, to the extent they relate in any way to the subject
matter hereof. There are no third party beneficiaries having rights under or
with respect to this Agreement.
Section 4.2. Assignment. Except as provided in this Section 4.2 and in
Section 4.3, no party may assign either this Agreement or any of its rights,
interests or obligations hereunder without the prior written approval of the
other parties. All of the terms, agreements, covenants, representations,
warranties and conditions of this Agreement are binding upon, and inure to the
benefit of and are enforceable by, the parties and their respective successors
and permitted assigns. Notwithstanding the foregoing, the Stockholder may,
without the consent of the Company, assign its rights and obligations hereunder
to an Affiliate in connection with the sale or other transfer to such Affiliate
of shares of such Stockholder's Common Stock.
Section 4.3. Transfers of Shares. Except as set forth in Section 4.2, any
transfer of shares of Common Stock by the Stockholder (other than to an
Affiliate of such Stockholder or to a party to this Agreement) will be free and
clear of any and all rights and obligations under this Agreement.
Section 4.4. Notices. All notices, requests and other communications
provided for or permitted to be given under this Agreement must be in writing
and shall be given by personal delivery, by certified or registered United
States mail (postage prepaid, return receipt requested), by a nationally
recognized overnight delivery service for next day delivery, or by facsimile
transmission, as follows (or to such other address as any party may give in a
notice given in accordance with the provisions hereof):
If to the Stockholder:
MatlinPatterson Global Opportunities Partners, L.P.
c/o MatlinPatterson Global Advisors
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX00000-0000
Attention: Xxxxxxxxxxx Xxxxxxx
Facsimile: 000-000-0000
If to the Company:
COMSYS IT Partners, Inc.
0000 Xxxx Xxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
Facsimile: 000-000-0000
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with a copy (which will not constitute notice) to:
Akin Gump Xxxxxxx Xxxxx & Xxxx LLP
0000 Xxxxxxx Xxxxxx, Xxx. 0000
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxx, P.C.
Facsimile: 214-969-4343
All notices, requests or other communications will be effective and deemed given
only as follows: (i) if given by personal delivery, upon such personal delivery,
(ii) if sent by certified or registered mail, on the fifth business day after
being deposited in the United States mail, (iii) if sent for next day delivery
by overnight delivery service, on the date of delivery as confirmed by written
confirmation of delivery, (iv) if sent by facsimile, upon the transmitter's
confirmation of receipt of such facsimile transmission, except that if such
confirmation is received after 5:00 p.m. (in the recipient's time zone) on a
business day, or is received on a day that is not a business day, then such
notice, request or communication will not be deemed effective or given until the
next succeeding business day. Notices, requests and other communications sent in
any other manner, including by electronic mail, will not be effective.
Section 4.5. Specific Performance; Remedies. Each party acknowledges and
agrees that the other parties would be damaged irreparably if any provision of
this Agreement were not performed in accordance with its specific terms or were
otherwise breached. Accordingly, the parties will be entitled to an injunction
or injunctions to prevent breaches of the provisions of this Agreement and to
enforce specifically this Agreement and its provisions in any action or
proceeding instituted in any state or federal court sitting in the State of
Delaware having jurisdiction over the parties and the matter, in addition to any
other remedy to which they may be entitled, at law or in equity. Except as
expressly provided herein, the rights, obligations and remedies created by this
Agreement are cumulative and in addition to any other rights, obligations or
remedies otherwise available at law or in equity. Except as expressly provided
herein, nothing herein will be considered an election of remedies.
Section 4.6. Submission to Jurisdiction; No Jury Trial.
(a) Submission to Jurisdiction. Any action, suit or proceeding
seeking to enforce any provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated hereby shall
only be brought in any federal court located in the State of Delaware or any
Delaware state court, and each party consents to the exclusive jurisdiction and
venue of such courts (and of the appropriate appellate courts therefrom) in any
such action, suit or proceeding and irrevocably waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to the laying
of the venue of any such, action, suit or proceeding in any such court or that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum. Process in any such action, suit or proceeding may be
served on any party anywhere in the world, whether within or without the
jurisdiction of any such court. Without limiting the foregoing, service of
process on such party as provided in Section 4.4 shall be deemed effective
service of process on such party.
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(b) Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES THAT ANY DISPUTE
THAT MAY ARISE OUT OF OR RELATING TO THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE SUCH PARTY HEREBY EXPRESSLY
WAIVES ITS RIGHT TO JURY TRIAL OF ANY DISPUTE BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR ANY OTHER AGREEMENTS RELATING HERETO OR ANY DEALINGS AMONG THEM
RELATING TO THE TRANSACTIONS CONTEMPLATED HEREBY. THE SCOPE OF THIS WAIVER IS
INTENDED TO ENCOMPASS ANY AND ALL ACTIONS, SUITS AND PROCEEDINGS THAT RELATE TO
THE SUBJECT MATTER OF THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING CONTRACT
CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND
STATUTORY CLAIMS. EACH PARTY REPRESENTS THAT (i) NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT IN THE EVENT OF ANY ACTION, SUIT OR PROCEEDING, SEEK TO
ENFORCE THE FOREGOING WAIVER, (ii) SUCH PARTY UNDERSTANDS AND WITH THE ADVICE OF
COUNSEL HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) SUCH PARTY MAKES
THIS WAIVER VOLUNTARILY, AND (iv) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND REPRESENTATIONS IN THIS
SECTION 4.6(b).
Section 4.7. Headings. The article and section headings contained in this
Agreement are inserted for convenience only and will not affect in any way the
meaning or interpretation of this Agreement.
Section 4.8. Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the State of Delaware, without giving
effect to any choice of law principles or conflicts of law rules (whether of the
State of Delaware or any other jurisdiction) that would result in the
application of the substantive or procedural laws of any other jurisdiction and,
as applicable the federal laws of the United States.
Section 4.9. Amendment. This Agreement may not be amended or modified
except by a writing signed by all of the parties.
Section 4.10. Extensions; Waivers. Any party may, for itself only, (a)
extend the time for the performance of any of the obligations of any other party
under this Agreement, (b) waive any inaccuracies in the representations and
warranties of any other party contained herein or in any document delivered
pursuant hereto and (c) waive compliance with any of the agreements or
conditions for the benefit of such party contained herein. Any such extension or
waiver will be valid only if set forth in a writing signed by the party to be
bound thereby. No waiver by any party of any default, misrepresentation or
breach of warranty or covenant hereunder, whether intentional or not, may be
deemed to extend to any prior or subsequent default, misrepresentation or breach
of warranty or covenant hereunder or affect in any way any rights arising
because of any prior or subsequent such occurrence. Neither the failure nor any
delay on the part of any party to exercise any right or remedy under this
Agreement shall operate as a waiver thereof, nor
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shall any single or partial exercise of any right or remedy preclude any other
or further exercise of the same or of any other right or remedy.
Section 4.11. Severability. The provisions of this Agreement will be
deemed severable and the invalidity or unenforceability of any provision will
not affect the validity or enforceability of the other provisions hereof;
provided that if any provision of this Agreement, as applied to any party or to
any circumstance, is judicially determined not to be enforceable in accordance
with its terms, the parties agree that the court judicially making such
determination may modify the provision in a manner consistent with its
objectives such that it is enforceable, and/or to delete specific words or
phrases, and in its modified form, such provision will then be enforceable and
will be enforced.
Section 4.12. Expenses. Except as otherwise expressly provided in this
Agreement, each party will bear its own costs and expenses incurred in
connection with the preparation, execution and performance of this Agreement and
the transactions contemplated hereby, including all fees and expenses of agents,
representatives, financial advisors, legal counsel and accountants.
Section 4.13. Counterparts; Effectiveness. This Agreement may be executed
in two counterparts, each of which will be deemed an original but all of which
together will constitute one and the same instrument. This Agreement will become
effective when one or more counterparts have been signed by each of the parties
and delivered to the other. For purposes of determining whether a party has
signed this Agreement or any document contemplated hereby or any amendment or
waiver hereof, only a handwritten original signature on a paper document or a
facsimile copy of such a handwritten original signature shall constitute a
signature, notwithstanding any law relating to or enabling the creation,
execution or delivery of any contract or signature by electronic means.
Section 4.14. Construction. This Agreement has been freely and fairly
negotiated among the parties. If an ambiguity or question of intent or
interpretation arises, this Agreement will be construed as if drafted jointly by
the parties and no presumption or burden of proof will arise favoring or
disfavoring any party because of the authorship of any provision of this
Agreement. Any reference to any law will be deemed also to refer to such law as
amended and all rules and regulations promulgated thereunder, unless the context
requires otherwise. The words "include," "includes," and "including" will be
deemed to be followed by "without limitation." Pronouns in masculine, feminine,
and neuter genders will be construed to include any other gender, and words in
the singular form will be construed to include the plural and vice versa, unless
the context otherwise requires. The words "this Agreement," "herein," "hereof,"
"hereby," "hereunder," and words of similar import refer to this Agreement as a
whole and not to any particular subdivision unless expressly so limited. The
parties intend that each representation, warranty, and covenant contained herein
will have independent significance. If any party has breached any
representation, warranty, or covenant contained herein in any respect, the fact
that there exists another representation, warranty or covenant relating to the
same subject matter (regardless of the relative levels of specificity) which the
party has not breached will not detract from or mitigate the fact that the party
is in breach of the first representation, warranty, or covenant.
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Section 4.15. Confidentiality. No party to this Agreement, nor any of
their respective Affiliates, employees, agents or representatives, shall
disclose to any third party any information obtained about the Company or its
operations or business which it may have acquired pursuant to this Agreement
without the prior written consent of the Company; provided, that any information
that is otherwise publicly available, without breach of this provision, or has
been obtained from a third party without a breach of such third party's duties,
shall not be deemed confidential information.
Section 4.16. Termination. This Agreement shall terminate at the end of
the Special Voting Period.
Section 4.17. Effective Time. Notwithstanding anything herein to the
contrary, this Agreement shall become effective at the Effective Time of the
Merger, and the representations and warranties contained herein shall be deemed
made as of the Effective Time.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their authorized representatives as of the date stated in the introductory
paragraph of this Agreement.
VENTURI PARTNERS, INC.
By: /s/ Xxx X. Xxxxxxxx, Xx.
Name: Xxx X. Xxxxxxxx, Xx.
Title: Senior Vice President/General Counsel
THE STOCKHOLDER:
MATLINPATTERSON GLOBAL OPPORTUNITIES PARTNERS, L.P.
By: /s/ Xxxxxxxx X. Xxxxxxxxxx
Name: Xxxxxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer
Address: 000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
[Signature Page to Voting Agreement]
SCHEDULE 2.2(b)
Stockholder Shares
STOCKHOLDER SHARES
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MATLINPATTERSON GLOBAL OPPORTUNITIES PARTNERS, L.P. 1,384,331
