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EXHIBIT 99.3
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as of May 4, 2001, among
XXXXXXXX.XXX SOFTWARE, INC., a Georgia corporation ("Telemate"), and each other
person and entity listed on the signature pages hereof (each, a "Shareholder").
W I T N E S S E T H:
WHEREAS, as of the date hereof each Shareholder owns (either
beneficially or of record) the number of shares of common stock, par value $0.01
per share ("Company Common Stock"), of Verso Technologies, Inc., a Minnesota
corporation (the "Company"), set forth opposite such Shareholder's name on
Exhibit A hereto (all such shares of Company Common Stock owned by the
Shareholders and any shares of Company Common Stock hereafter acquired by the
Shareholders prior to the termination of this Agreement being referred to herein
as the "Shares");
WHEREAS, Telemate and the Company, among others, propose to enter into
an Agreement and Plan of Merger 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 Telemate
(the "Merger"); and
WHEREAS, as a condition to the willingness of Telemate to enter into
the Merger Agreement, Telemate has requested that each Shareholder agree, and,
in order to induce Telemate to enter into the Merger Agreement, each Shareholder
has agreed, to grant Telemate proxies to vote such Shareholder'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 Shareholder shall not
(a) sell, pledge or otherwise dispose of any of its Shares if such transaction
would result in the Shareholder 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
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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 Common
Stock if such transaction would result in the Shareholder no longer having the
power to vote or cause to be voted the Shares.
SECTION 1.02 VOTING OF SHARES; FURTHER ASSURANCES. (a) Each
Shareholder, by this Agreement, with respect to those Shares that it owns of
record, does hereby irrevocably constitute and appoint Telemate, or any nominee
of Telemate, 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 shareholders of the Company (including the right to
sign its name (as shareholder) 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 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 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 Shareholder further
agrees to cause the Shares owned by it beneficially to be voted in accordance
with the foregoing. Each Shareholder acknowledges receipt and review of a copy
of the Merger Agreement.
(b) Each Shareholder represents that any proxies
given prior to the date of this Agreement regarding the Shares are not
irrevocable and that such proxies have been revoked.
(c) Each Shareholder affirms that the
irrevocable proxy set forth in this Section 1.02 is given in connection with the
execution of the Merger Agreement and that such irrevocable proxy is given to
secure the performance of its duties under this Agreement. Each Shareholder
further affirms that such irrevocable proxy is coupled with an interest and may
under no circumstances be revoked during the term of this Agreement and ratifies
and confirms all that such irrevocable proxy may lawfully do or cause to be done
by virtue hereof.
(d) Each Shareholder shall perform such further
acts and execute such further documents and instruments as may reasonably be
required to vest in Telemate the power to carry out the provisions of this
Agreement.
(e) Nothing contained in this Agreement shall be
deemed to restrict a Shareholder 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.
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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;
(b) the date that is 120 days after the date of the termination of the Merger
Agreement pursuant to Section 8.1(e) thereof if at the time of such termination
there shall exist or be proposed a Competing Transaction with respect to the
Company; and (c) the date of the termination of the Merger Agreement pursuant to
its terms (except for a termination specified in the foregoing clause (b)).
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF
SHAREHOLDERS
Each Shareholder, severally and not jointly, hereby represents and
warrants to Telemate as follows:
SECTION 2.01 DUE ORGANIZATION, ETC. Such Shareholder (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
Shareholder 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 Shareholder. This Agreement
has been duly executed and delivered by or on behalf of such Shareholder and,
assuming its due authorization, execution and delivery by Telemate, constitutes
a legal, valid and binding obligation of such Shareholder, enforceable against
such Shareholder 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 Shareholder do not, and the
performance of this Agreement by such Shareholder will not, (i) conflict with or
violate the Certificate of Incorporation or By-Laws or similar organizational
documents of such Shareholder (in the case of a Shareholder 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
Shareholder 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 Shareholder or (if such Shareholder 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 Shareholder is a party or by which such Shareholder or any of its
properties is bound or affected, except for any such breaches,
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defaults or other occurrences that would not cause or create a material risk of
non-performance or delayed performance by such Shareholder of its obligations
under this Agreement.
(b) The execution and delivery of this Agreement
by such Shareholder do not, and the performance of this Agreement by such
Shareholder 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 (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 Shareholder of its obligations under
this Agreement.
SECTION 2.03 TITLE TO SHARES. Other than to the extent described
in Exhibit A hereto, such Shareholder 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 TELEMATE
Telemate hereby represents and warrants to each Shareholder as follows:
SECTION 3.01 DUE ORGANIZATION, ETC. Telemate is a corporation
duly organized and validly existing under the laws of the State of Georgia.
Telemate 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 Telemate have been duly authorized by all
necessary corporate action on the part of Telemate. This Agreement has been duly
executed and delivered by Telemate and, assuming its due authorization,
execution and delivery by the Shareholders, constitutes a legal, valid and
binding obligation of Telemate, enforceable against Telemate in accordance with
its terms.
SECTION 3.02 NO CONFLICT; REQUIRED FILINGS AND CONSENTS. (a) The
execution and delivery of this Agreement by Telemate do not, and the performance
of this Agreement by Telemate will not, (i) conflict with or violate the
Articles of Incorporation or By-laws of Telemate, (ii) conflict with or violate
any law, rule, regulation, order, judgment or decree applicable to Telemate or
by which Telemate 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 Telemate
pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or obligation to which Telemate
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
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create a material risk of non-performance or delayed performance by Telemate of
its obligations under this Agreement.
(b) The execution and delivery of this Agreement
by Telemate do not, and the performance of this Agreement by Telemate 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 (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 Telemate of its obligations under this Agreement.
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 Telemate:
0000 Xxxxxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
Telecopier No.: (000) 000-0000
with a copy to:
Xxxxxx, Xxxxxxx & Xxxxxx, LLP
1600 Atlanta Financial Center
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxx, Esq.
Telecopier No.: (000) 000-0000
(b) If to a Shareholder, to such Shareholder'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.
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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 ENTIRE AGREEMENT. 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 Telemate may assign its
rights, interests and obligations hereunder to any successor or Telemate entity
of Telemate 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, inure to the benefit of, and be enforceable by, each party hereto and each
party's respective heirs, beneficiaries, executors, representatives and
permitted assigns. Nothing in this Agreement, 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.
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 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 GEORGIA APPLICABLE TO
CONTRACTS EXECUTED AND TO BE PERFORMED ENTIRELY WITHIN THAT STATE. TELEMATE AND
EACH OF THE SHAREHOLDERS 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
TELEMATE AND EACH OF THE SHAREHOLDERS 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. TELEMATE AND EACH OF THE SHAREHOLDERS
EACH HEREBY IRREVOCABLY
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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.
SECTION 4.10 PRONOUNS. Words of the masculine gender shall be
deemed and construed to include correlative words of the feminine and neuter
genders.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed as of the date first written above.
XXXXXXXX.XXX SOFTWARE, INC.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Executive Officer
SHAREHOLDERS:
/s/ Xxx X. Xxxxxxx
------------------------------------------------
XXX X. XXXXXXX
/s/ Xxxx X. Xxxx
------------------------------------------------
XXXX X. XXXX
/s/ Xxxxx X. Xxxxxxx
------------------------------------------------
XXXXX X. XXXXXXX
/s/ Xxx X. Xxxxxxx
------------------------------------------------
XXX X. XXXXXXX
/s/ Xxxxxx X. Xxxx
------------------------------------------------
XXXXXX X. XXXX
/s/ Xxxxxxx X. Xxxxxxx
------------------------------------------------
XXXXXXX X. XXXXXXX
/s/ Xxxxxx X. Xxxxxxx
------------------------------------------------
XXXXXX X. XXXXXXX
/s/ Xxxxxx X. Xxxxxx, Xx.
------------------------------------------------
XXXXXX X. XXXXXX, XX.
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EXHIBIT A
LIST OF SHAREHOLDERS
NAME AND ADDRESS OF SHAREHOLDER NUMBER OF SHARES OF COMPANY COMMON
STOCK OWNED BENEFICIALLY AND OF
RECORD
Xxx X. Xxxxxxx 0
000 Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Xxxx X. Xxxx 21,875
000 Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Xxxxx X. Xxxxxxx 13,125
000 Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Xxx X. Xxxxxxx 175,000
000 Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Xxxxxx X. Xxxx 315,100
000 Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Xxxxxxx X. Xxxxxxx 105,000
000 Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Xxxxxx X. Xxxxxxx 56,875
000 Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Xxxxxx X. Xxxxxx, Xx. 103,612
000 Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
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