VOTING AGREEMENT
Exhibit
99.1
THIS VOTING AGREEMENT (this
“Agreement”) is made and
entered into as of June 3, 2010 by and among Xxxxxx Engineering Group Inc., a
Delaware corporation (“Buyer
Parent”), Xxxxxx Technology Inc., a Tennessee corporation and a
wholly-owned subsidiary of Buyer Parent (“Buyer,” and together with
Buyer Parent, the “Buyer
Parties”), and the undersigned stockholder (“Stockholder”) of TechTeam
Global, Inc., a Delaware corporation (the “Seller”). Each of Buyer
Parent, Buyer and Stockholder is sometimes referred to herein as a “Party” and collectively as the
“Parties.”
WITNESSETH:
WHEREAS, concurrently with the
execution of this Agreement, Buyer Parent, Buyer and Seller have entered into
a Stock Purchase Agreement (as it may be amended from time to time,
the “Stock Purchase
Agreement”), which provides for, among other things, the acquisition by
Buyer from Seller of 100% of the shares of capital stock (the “Share Acquisition”) of
TechTeam Government Solutions, Inc., a Virginia corporation (the “Company”), which constitute
all of the issued and outstanding shares of capital stock of the
Company;
WHEREAS, as of the date
hereof, Stockholder Beneficially Owns such number of shares of the outstanding
common stock of Seller, par value $.01 per share (“Seller Common Stock”), as is
indicated on the signature page of this Agreement;
WHEREAS, as a condition and
material inducement to entering into the Stock Purchase Agreement, Buyer Parent
and Buyer have required that Stockholder agree, and Stockholder has agreed, to
enter into this Agreement;
NOW, THEREFORE, in
consideration of the foregoing and the representations, warranties, covenants
and agreements contained in this Agreement and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
Parties to this Agreement, intending to be legally bound hereby, agree as
follows:
1. Certain
Definitions. All capitalized terms that are used but not defined herein
shall have the respective meanings ascribed to them in the Stock Purchase
Agreement. For all purposes of and under this Agreement, the following terms
shall have the following respective meanings:
(a) “Beneficially
Own” or “Beneficial
Ownership” with respect to any securities shall mean having “beneficial
ownership” of such securities (as determined pursuant to Rule 13d-3 under the
Exchange Act), including pursuant to any agreement, arrangement or
understanding, whether or not in writing. Without duplicative counting of the
same securities by the same holder, securities Beneficially Owned by a Person
shall include securities Beneficially Owned by all other Persons with whom such
Person would constitute a “group” within the meaning of Section 13(d)(3) of the
Exchange Act and Rule 13d-5(b)(1) under the Exchange Act.
(b) “Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, or any
successor law, and the regulations and rules issued pursuant to that Act or any
successor law.
(c) “Expiration
Date” shall mean the earliest to occur of (i) such date and time as the
Stock Purchase Agreement shall have been validly terminated pursuant to Article
X thereof, (ii) such date and time as the Contemplated Transactions, including
the Share Acquisition, shall have been consummated in accordance with the terms
and conditions of the Stock Purchase Agreement, (iii) such date and time as the
Seller Board Recommendation is withdrawn or modified in a manner adverse to
Buyer in accordance with Section 7.11(d) of the Stock Purchase Agreement, or
(iv) such date and time as any waiver, amendment or other change to the Stock
Purchase Agreement is effected without Stockholder’s written consent (such
written consent not to be subject to the terms of this Agreement) that (A)
decreases the Purchase Price, changes the form of consideration in whole or in
part, delays the timing of the payment of the Purchase Price, extends the
termination date of the Stock Purchase Agreement or (B) otherwise materially and
adversely affects the interests of Stockholder.
(d) “Governmental
Authority” shall mean any foreign, domestic, federal, territorial, state
or local government, governmental authority or any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government, including, without limitation, any agency, department, board,
branch, commission or instrumentality of any of the foregoing or any court,
arbitrator or similar tribunal or forum.
(e) “Person”
shall mean any individual, corporation (including any non-profit corporation),
professional corporation, general or limited partnership, professional limited
liability partnership, limited liability company, joint venture, estate, trust,
association, organization, labor union, or other entity or Governmental
Authority.
(f) “Representatives”
shall mean with respect to a particular Person, any director, officer, employee,
agent, consultant, advisor, or other representative of such Person, including
legal counsel, accountants, and financial advisors.
(g)
“Shares”
shall mean (i) all securities of Seller (including all shares of Seller Common
Stock and, to the extent transferable by their terms, all options, warrants and
other rights to acquire shares of Seller Common Stock) owned by Stockholder as
of the date hereof, and (ii) all additional securities of Seller (including all
additional shares of Seller Common Stock and, to the extent transferable by
their terms, all additional options, warrants and other rights to acquire shares
of Seller Common Stock) of which Stockholder acquires ownership during the
period from the date of this Agreement through the Expiration Date (including by
way of stock dividend or distribution, split-up, recapitalization, combination,
exchange of shares or the like).
(h) “Transfer”
shall mean, 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 other disposition of such security (including transfers by testamentary or
intestate succession or otherwise by operation of Applicable Law) of 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 power of attorney, proxy or otherwise), or the record or Beneficial
Ownership thereof, the offer to make such a sale, transfer or other disposition,
and each agreement, arrangement or understanding, whether or not in writing, to
effect any of the foregoing.
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2. Restrictions
on Transfer of Voting Rights.
(a) Prior
to the Expiration Date, Stockholder shall not, except as contemplated by this
Agreement and except as the result of the death of Stockholder, Transfer any
Shares unless each Person to which any of such Shares, or any interest in any of
such Shares, is or may be Transferred shall have: (i) executed a counterpart of
this Agreement and (ii) agreed in writing to hold such Shares (or interest in
such Shares) subject to all of the terms and provisions of this
Agreement.
(b) Prior
to the Expiration Date, except as otherwise permitted by this Agreement or
except as prohibited by order of a court of competent jurisdiction, Stockholder
will not commit any act that could restrict or otherwise limit Stockholder’s
legal power, authority and right to vote all of the Shares then owned of record
or Beneficially Owned by Stockholder. Without limiting the generality
of the foregoing, except for this Agreement, prior to the Expiration Date,
Stockholder will not enter into any voting agreement with any Person with
respect to any of the Shares, grant any Person 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 restricting or limiting Stockholder’s legal power,
authority or right to vote the Shares in favor of the approval of the Share
Acquisition.
3. Agreement
to Vote Shares.
(a) Prior
to the Expiration Date, at every meeting of Stockholders of Seller called, and
at every adjournment, postponement or rescheduling thereof, and on every action
or approval by written consent of stockholders of Seller, Stockholder (in
Stockholder’s capacity as such and not in any other capacity) shall, or shall
cause the holder of record of any or all of the Shares on any applicable record
date to, vote the Shares:
(i) in
favor of the approval and adoption of the Stock Purchase Agreement, and in favor
of the Contemplated Transactions, including the Share Acquisition;
(ii) against
approval or adoption of any Competing Transaction Proposal or any proposal made
in opposition to or in competition with the Contemplated Transactions;
and
(iii) against
any actions (other than those actions that relate to the Contemplated
Transactions or are otherwise permitted by the Stock Purchase Agreement,
including, but not limited to, Section 5.07 of the Stock Purchase Agreement) to
the extent that such actions are intended, or could reasonably be expected to,
in any material respect, impede, interfere with, delay, postpone, discourage or
adversely affect the Contemplated Transactions.
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(b) Prior
to the Expiration Date, at any meeting of the stockholders of Seller held to
approve the Stock Purchase Agreement and the Contemplated Transactions,
Stockholder shall, or shall cause the holder of record on any applicable record
date to, appear at such meeting or otherwise cause the Shares to be counted as
present thereat for purposes of establishing a quorum.
(c) Prior
to the Expiration Date, Stockholder shall not enter into any agreement or
understanding with any Person to vote or give instructions in any manner
inconsistent with the terms of this Section 3.
(d) Notwithstanding
the foregoing and any other provision of this Agreement, nothing in this
Agreement shall be deemed to restrict in any way the ability of Stockholder to
encourage, solicit, initiate or engage in discussions or negotiations with any
Person, or encourage or solicit proposals from any Person, with respect to
either (i) any purchase, sale or other disposition of Seller’s commercial
business (which, for the avoidance of doubt, does not include any of the current
operations of the Acquired Companies or any of its Subsidiaries), or (ii) any
merger, acquisition, consolidation or similar business combination involving the
sale of Seller subsequent to a sale of the Acquired Companies to Buyer, provided
that, in the case of any transaction referred to in clause (i) or (ii) above,
neither the execution, delivery and/or performance of any definitive agreement
with respect to such transaction, nor the consummation of such transaction,
would be reasonably expected to prevent or render impractical, or otherwise
frustrate or impede in any material respect, the Contemplated
Transactions. For purposes of this Agreement, no inquiry, proposal,
indication of interest or offer from any Person with respect to any of the
transactions referred to in clauses (i) and (ii) of the preceding sentence (as
limited by the proviso set forth in the preceding sentence) shall be deemed to
be a Competing Transaction Proposal.
(e) Notwithstanding
any other provision of this Agreement, Stockholder will not be required to vote
in favor of the Share Acquisition if the Buyer Parties and Seller amend the
Stock Purchase Agreement and such amendment is not unanimously approved by the
Board of Directors of Seller.
4. Stockholder
Capacity. Notwithstanding anything contained in this Agreement to the
contrary, nothing in this Agreement shall in any way (a) restrict or limit the
Stockholder or any designee or Representative of Stockholder who is a director
or officer of Seller from taking (or omitting to take) any action in his or her
capacity as a director or officer of Seller or otherwise fulfilling his or her
fiduciary obligations as a director or officer of Seller, or (b) restrict or
limit (or require Stockholder to attempt to restrict or limit) any designee or
Representative of Stockholder who is a director or officer of Seller from acting
in such capacity or voting in such capacity in his or her sole discretion on any
matter. It is expressly understood that (i) Stockholder is not making any
agreement or understanding herein in his, her or its capacity as, or on behalf
of any designee or Representative of Stockholder who is, a director or officer
of Seller and (ii) Stockholder is signing this Agreement solely, and this
Agreement shall apply to Stockholder solely, in his, her or its capacity as a
record or Beneficial Owner of Shares.
5. No
Ownership Interest. Nothing contained in this Agreement shall be deemed
to vest in Buyer Parent or Buyer any direct or indirect ownership or incidence
of ownership of or with respect to any Shares. All rights, ownership and
economic benefits of and relating to the Shares shall remain vested in and
belong to Stockholder, and neither Buyer Parent nor Buyer shall have any
authority to manage, direct, superintend, restrict, regulate, govern, or
administer any of the policies or operations of Seller or exercise any power or
authority to direct Stockholder in the voting of any of the Shares, except as
otherwise provided herein.
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6. Representations
and Warranties of Stockholder. As of the date of this Agreement,
Stockholder hereby represents and warrants to the Buyer Parties as
follows:
(a) Power;
Binding Agreement. Stockholder has the full legal capacity, power and
authority to enter into and perform all of Stockholder’s obligations under this
Agreement. The execution, delivery and performance by Stockholder of this
Agreement and the performance by Stockholder of his, her or its obligations
hereunder have been duly and validly authorized by Stockholder and no other
actions or proceedings on the part of Stockholder are necessary to authorize the
execution and delivery by Stockholder of this Agreement and the performance by
Stockholder of his, her or its obligations hereunder. The execution, delivery
and performance of this Agreement by Stockholder will not violate any other
agreement to which Stockholder is a party including any voting agreement,
stockholders’ agreement or voting trust. This Agreement has been duly and
validly executed and delivered by Stockholder and constitutes a valid and
binding agreement of Stockholder, enforceable against Stockholder in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization and
other laws relating to creditors’ rights and to general principles of equity.
There is no beneficiary or holder of a voting trust certificate or other
interest of any trust of which Stockholder is trustee whose consent is required
for the execution and delivery of this Agreement or the performance by
Stockholder of his, her or its obligations hereunder. If Stockholder is married
and Stockholder’s Shares constitute community property, this Agreement has been
duly authorized, executed and delivered by, and constitutes a valid and binding
agreement of, Stockholder’s spouse, enforceable against such person in
accordance with its terms.
(b) No
Conflicts. Except for filings that may be required under the Exchange
Act, (i) no filing with, and no permit, authorization, consent or approval of,
any Governmental Authority is necessary for the execution of this Agreement by
Stockholder and the performance by Stockholder of his, her or its obligations
hereunder, and (ii) none of the execution and delivery of this Agreement by
Stockholder, the consummation by Stockholder of the transactions contemplated
hereby or compliance by Stockholder with any of the provisions hereof shall (A)
conflict with or result in any breach of any applicable organizational documents
of Stockholder, if any, (B) result in a violation or breach of, or constitute
(with or without notice or lapse of time or both) a default (or give rise to any
third party right of termination, cancellation, material modification or
acceleration) under any of the terms, conditions or provisions of any Contract
or other instrument or obligation of any kind to which Stockholder is a party or
by which Stockholder or any of Stockholder’s properties or assets may be bound,
or (C) violate any Applicable Law or Order applicable to Stockholder or any of
Stockholder’s properties or assets.
(c) Ownership
of Shares. Stockholder (i) is the record or Beneficial Owner of the
shares of Seller Common Stock indicated on the signature page of this Agreement,
all of which are free and clear of any and all pledges, liens, security
interests, claims, charges, restrictions, options, encumbrances, proxies, voting
trusts, voting agreements or similar understandings, arrangements or agreements
(other than such agreements arising hereunder or under the Stock Purchase
Agreement) that would limit or restrict the ability of Stockholder to enter into
this Agreement and perform his, her or its obligations hereunder through the
Expiration Date (“Voting
Encumbrances”), (ii) is the owner of options that are exercisable for the
number of shares of Seller Common Stock indicated on the signature page of this
Agreement, all of which options and shares of Seller Common Stock issuable upon
the exercise of such options are free and clear of any Voting Encumbrances
(except any Voting Encumbrances arising hereunder or under the Stock Purchase
Agreement), and (iii) does not own, beneficially or otherwise, any securities of
Seller other than the shares of Seller Common Stock, options to purchase shares
of Seller Common Stock, and shares of Seller Common Stock issuable upon the
exercise of such options, indicated on the signature page of this
Agreement.
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(d) Voting
Power. Stockholder has, and until the Expiration Date will have, sole
voting power (including the full legal power, authority and right to vote all of
the Shares in favor of the approval and adoption of the Stock Purchase Agreement
and in favor of the Contemplated Transactions without the consent or approval
of, or any other action on the part of, any other Person), sole power of
disposition, sole power to issue instructions with respect to the matters set
forth herein, and sole power to agree to perform all of his, her or its
obligations under this Agreement, in each case with respect to all of the
Shares, with no limitations, qualifications or restrictions on such rights,
subject to applicable securities laws and the terms of this Agreement.
Notwithstanding anything in this Agreement to the contrary, nothing herein shall
require Stockholder to exercise any option, warrant or any other right to
purchase any shares of Seller Common Stock.
(e) No
Finder’s Fees. No broker, investment banker, financial adviser or other
Person is entitled to any broker’s, finder’s, financial adviser’s or other
similar fee or commission from Stockholder in connection with the transactions
contemplated hereby based upon arrangements made by Stockholder.
(f) Reliance
by Buyer Parent and Buyer. Stockholder understands and acknowledges that
Buyer Parent and Buyer are entering into the Stock Purchase Agreement in
reliance upon Stockholder’s execution and delivery of this Agreement and
acknowledges that this Agreement is granted in consideration for the execution
and delivery of the Stock Purchase Agreement by Buyer Parent and
Buyer.
7. No
Solicitation.
(a) Prior
to the Expiration Date, Stockholder (in his, her or its capacity as such and not
in any other capacity) shall not, and shall not authorize or permit any of its
Representatives to (i) solicit, initiate, or knowingly encourage, induce or
facilitate the making, submission or announcement of, a Competing Transaction
Proposal, (ii) furnish to any Person (other than Buyer Parent, Buyer or any
Representatives of Buyer Parent or Buyer or to a Governmental Authority) any
non-public information relating to the Company or any of its Subsidiaries, or
afford access to the business, properties, assets, books, records or personnel
of the Company or any of its Subsidiaries to any Person (other than Buyer
Parent, Buyer or any Representatives of Buyer Parent or Buyer or to a
Governmental Authority) in connection with, in response to, or knowingly take
any other action with the intent to assist or facilitate any inquiries or the
making of, any proposal that constitutes or would be reasonably expected to lead
to a Competing Transaction Proposal, (iii) participate or engage in discussions
or negotiations with any Person with respect to a Competing Transaction
Proposal, or (iv) enter into any letter of intent, memorandum of understanding
or other agreement contemplating or otherwise relating to an Acquisition
Transaction; provided,
however, that notwithstanding anything in this Agreement to the contrary,
nothing contained in this Agreement shall prevent Stockholder or its
Representatives from engaging in any activities if and to the extent that Seller
is permitted to engage in such activities pursuant to Section 5.07 of the Stock
Purchase Agreement.
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(b) Stockholder
shall immediately cease any and all existing activities, discussions or
negotiations with any Persons conducted heretofore with respect to any Competing
Transaction Proposal.
8. Certain
Restrictions. Prior to the Expiration Date, Stockholder shall not,
directly or indirectly, take any action that would make any representation or
warranty of Stockholder contained herein untrue or incorrect or have the effect
of preventing or disabling Stockholder from performing Stockholder’s obligations
under this Agreement.
9. Disclosure.
Subject to reasonable prior notice and approval (which shall not be unreasonably
withheld, delayed or conditioned), Stockholder shall permit and hereby
authorizes Seller, Buyer Parent and Buyer to publish and disclose in all
documents and schedules filed with the SEC, including, but not limited to, (a)
the Proxy Statement (including any supplement or amendment thereto), (b) any
Current Report on Form 8-K of Seller or Buyer Parent, (c) the press release
contemplated by the Stock Purchase Agreement, and (d) any other disclosure
document that Seller, Buyer Parent and Buyer determines to be necessary or
desirable in connection with the Contemplated Transactions, his, her or its
identity and ownership of Shares and the nature of his, her or its obligations,
commitments, arrangements and understandings under this Agreement.
10. Termination.
This Agreement shall automatically terminate and shall have no further force or
effect, with no liability on the part of any Party hereto, as of 5:00 p.m., New
York City time, on the Expiration Date; provided, that
notwithstanding the foregoing, nothing set forth in this Section 10 or elsewhere
in this Agreement shall relieve either Party hereto from liability, or otherwise
limit the liability of either Party hereto, for any intentional breach of this
Agreement and this Section 10 and Section 11 shall survive any termination of
this Agreement.
11. Miscellaneous.
(a) Binding
Effect and Assignment. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the Parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor any
of the rights, interests or obligations of the Parties hereto may be assigned by
either of the Parties without the prior written consent of the
other.
(b) Further
Assurances. From time to time, at any Party’s request and without further
consideration, each Party hereto shall execute and deliver such additional
documents and take all such further lawful action as may be necessary or
desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
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(c) Amendments
and Modifications. Any provision of this Agreement may be
amended or modified only by a written instrument signed by all of the Parties
hereto.
(d) Specific
Performance; Injunctive Relief. The Parties hereto acknowledge that Buyer
Parent and Buyer shall be irreparably harmed and that there shall be no adequate
remedy at law for a violation of any of the covenants or agreements of
Stockholder set forth herein. Therefore, it is agreed that, in addition to any
other remedies that may be available to Buyer Parent and Buyer upon any such
violation, Buyer Parent and Buyer shall have the right to enforce such covenants
and agreements by specific performance, injunctive relief or by any other means
available to Buyer Parent and Buyer at law or in equity and Stockholder hereby
waives any requirement for the security or posting of any bond in connection
with any such remedies.
(e) Notices.
All notices, consents and other communications hereunder shall be in writing and
shall be deemed to have been duly given (a) when delivered by hand or by Federal
Express or a similar overnight courier, (b) five (5) days after being deposited
in any United States Post Office enclosed in a postage prepaid, registered or
certified envelope addressed, or (c) when successfully transmitted by fax (with
a confirming copy of such communication to be sent as provided in clauses (a) or
(b) above) to the Party for whom intended, at the address or fax number for such
Party set forth below (or at such other address or telecopier number for a Party
as shall be specified by like notice, provided, however, that the day any notice
of change of address or telecopier number shall be effective only upon
receipt):
If to Buyer Parent or
Buyer:
Xxxxxx
Engineering Group Inc.
0000
Xxxxx Xxxxxx Xxxxxxx
Xxxxxxxx,
Xxxxxxxxxx 00000
(for
personal delivery and overnight courier)
X.X. Xxx
0000
Xxxxxxxx,
Xxxxxxxxxx 00000-0000
(for U.S.
Mail)
Attention: Xxxx
Xxxxxx, Esq.
Facsimile: (000)
000-0000
Email: Xxxx.Xxxxxx@xxxxxx.xxx
with a
copy (which shall not constitute notice) to:
Paul,
Hastings, Xxxxxxxx & Xxxxxx LLP
000 X.
Xxxxxx Xxxxxx
Xxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx
X. Xxxxxx, Esq.
Facsimile: (000)
000-0000
Email: XxxxxxXxxxxx@Xxxxxxxxxxxx.xxx
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If to
Stockholder:
with
copies (which shall not constitute notice) to:
and
TechTeam Global, Inc.
00000 Xxxx 00 Xxxx Xxxx
Xxxxxxxxxx,
XX 00000
Facsimile No.: (000)
000-0000
Attention: Xxxxxxx X. Xxxxx,
Esq.
XXxxxx@xxxxxxxx.xxx
(f) No
Waiver. No waiver hereunder shall be valid or binding unless set forth in
writing and duly executed by the Party against whom enforcement of the waiver is
sought. Any such waiver shall constitute a waiver only with respect
to the specific matter described in such writing and shall in no way impair the
rights of the Party granting such waiver in any other respect or at any other
time. Neither the waiver by any of the Parties of a breach of or a
default under any of the provisions of this Agreement, nor the failure by any of
the Parties, on one or more occasions, to enforce any of the provisions of this
Agreement or to exercise any right or privilege hereunder, shall be construed as
a waiver of any other breach or default of a similar nature, or as a waiver of
any of such provisions, rights or privileges hereunder.
(g) No Third
Party Beneficiaries. The agreements of the Parties contained
herein are intended solely for the benefit of the Party to whom such agreements
are made, shall confer no rights hereunder, whether legal or equitable, in any
other Person, and no other Person shall be entitled to rely
thereon. The representations and warranties of the Stockholder
contained herein are intended solely for the benefit of the Buyer Parties, shall
confer no rights hereunder, whether legal or equitable, in any other Person, and
no other Person shall be entitled to rely thereon. The
representations and warranties of the Stockholder contained herein shall expire
on the Expiration Date.
(h) Governing
Law. This Agreement shall be governed, construed, performed and enforced
in accordance with the laws of the State of Delaware (without giving effect to
its principles or rules of conflict of laws to the extent such principles or
rules would require or permit the application of the laws of another
jurisdiction) as to all matters, including, but not limited to, matters of
validity, construction, effect, performance and remedies.
(i) Submission
to Jurisdiction.
(i) Each
of the Parties irrevocably agrees that any legal action or proceeding with
respect to this Agreement and the rights and obligations arising hereunder, or
for recognition and enforcement of any judgment in respect of this Agreement and
the rights and obligations arising hereunder brought by the other Party hereto
or its successors or permitted assigns, shall be brought and determined
exclusively in the Delaware Court of Chancery and any state appellate court
therefrom within the State of Delaware (or, if the Delaware Court of Chancery
declines to accept jurisdiction over a particular matter, any state or federal
court within the State of Delaware). Each of the Parties hereby
irrevocably submits with regard to any such action or proceeding for itself and
in respect of its property, generally and unconditionally, to the personal
jurisdiction of the aforesaid courts and agrees that, except for the enforcement
of any judgment entered by any of the aforesaid courts arising from any such
action or proceeding, it will not bring any action relating to this Agreement in
any court other than the aforesaid courts.
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(ii) Each
of the Parties hereby irrevocably waives, and agrees not to assert as a defense,
counterclaim or otherwise, in any action or proceeding with respect to this
Agreement, (a) any claim that it is not personally subject to the jurisdiction
of the above named courts for any reason other than the failure to serve in
accordance with Section 11(e) hereof, (b) any claim 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 notice, attachment prior to
judgment, attachment in aid of execution of judgment, execution of judgment or
otherwise) and (c) to the fullest extent permitted by Applicable Law, any claim
that (i) the suit, action or proceeding in such court is brought in an
inconvenient forum, (ii) the venue of such suit, action or proceeding is
improper or (iii) this Agreement, or the subject matter hereof, may not be
enforced in or by such courts.
(j) Waiver of
Jury Trial. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL
RIGHT TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(k) Service
of Process. The Parties agree that the delivery of process or
other papers in connection with any such action or proceeding in the manner
provided in Section 11(e) hereof, or in such other manner as may be permitted by
Applicable Law, shall be valid and sufficient service thereof.
(l) Rules of
Construction. The Parties hereto agree that they have been represented by
counsel during the negotiation and execution of this Agreement and, therefore,
waive the application of any Applicable Law, holding or rule of construction
providing that ambiguities in an agreement or other document will be construed
against the party drafting such agreement or document.
(m) Entire
Agreement. This Agreement contains the entire understanding of the
Parties hereto in respect of the subject matter hereof, and supersede all prior
discussions, negotiations, agreements, arrangements and understandings, both
written and oral, between the Parties hereto with respect to the subject matter
hereof and thereof. There are no warranties, representations or other agreements
between the Parties in connection with the subject matter of this Agreement,
except as specifically set forth in this Agreement.
(n) Severability.
If any term or other provision of this Agreement is invalid, illegal or
incapable of being enforced by any Applicable Law, 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
herein are not affected in any manner materially adverse to any Party hereto. In
the event any Governmental Authority of competent jurisdiction holds any
provision of this Agreement to be invalid, illegal or incapable of being
enforced, the Parties hereto shall negotiate in good faith and execute and
deliver an amendment to this Agreement in order, as nearly as possible, to
effectuate, to the extent permitted by Applicable Law, the intent of the Parties
hereto with respect to such provision.
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(o) Interpretation.
(i) The
phrases “the date of this Agreement,” “the date hereof” and terms of similar
import, unless the context otherwise requires, shall be deemed to refer to the
date set forth in the first paragraph of this Agreement (in which “this
Agreement” is defined).
(ii) Whenever
the words “include,” “includes” or “including” are used in this Agreement they
shall be deemed to be followed by the words “without limitation.”
(iii) As
used in this Agreement, the term “affiliate” shall have the meaning set forth in
Rule 12b-2 promulgated under the Exchange Act.
(iv) Any
singular term in this Agreement shall be deemed to include the plural, and any
plural term the singular.
(v)
“Writing,” “written” and comparable terms refer to printing, typing and other
means of reproducing words (including electronic media) in a visible
form.
(vi) References
to any Person include the successors and permitted assigns of that
Person.
(vii) References
from or through any date mean, unless otherwise specified, from and including or
through and including, respectively.
(viii) References
to “law,” “laws” or to a particular statute or law shall be deemed to refer to
such statute or law as amended from time to time, and to the rules and
regulations promulgated thereunder.
(p) Headings.
The article and section headings contained in this Agreement are solely for the
purpose of reference, are not part of the agreement of the Parties hereto and
shall not in any way affect the meaning or interpretation of this
Agreement.
(q) Expenses.
All costs and expenses incurred in connection with this Agreement shall be paid
by the Party incurring the expenses.
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(r) Counterparts;
Effectiveness. This Agreement may be executed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. In the event that
any signature to this Agreement is delivered by facsimile transmission or by
e-mail delivery of a portable document format (.pdf or similar format) data
file, such signature shall create a valid and binding obligation of the Party
executing (or on whose behalf such signature is executed) with the same force
and effect as if such facsimile or “.pdf” signature page were an original
thereof. This Agreement shall become effective when each Party hereto shall have
received a counterpart hereof signed by all of the other Parties hereto. Until
and unless each Party has received a counterpart hereof signed by the other
Party hereto, this Agreement shall have no effect and no Party shall have any
right or obligation hereunder (whether by virtue of any other oral or written
agreement or other communication).
[SIGNATURE
PAGE FOLLOWS]
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IN WITNESS WHEREOF, the
undersigned have caused this Agreement to be executed by their respective duly
authorized officers to be effective as of the date first above
written.
| XXXXXX ENGINEERING GROUP INC. | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
| XXXXXX TECHNOLOGY INC. | |||
|
|
By:
|
/s/ | |
| Name: | |||
| Title: | |||
| STOCKHOLDER: | |||
|
|
By:
|
/s/ | |
| Name: | |||
| Title: | |||
SHARE
BENEFICIALLY OWNED:
shares
of Seller Common Stock
shares
of Seller Common Stock issuable upon exercise of outstanding options or
warrants
13
