EXHIBIT 3
VOTING AGREEMENT
This VOTING AGREEMENT (this "Agreement"), dated as of October 22, 2003,
is by and between HarbourVest Partners, LLC ("Stockholder") and Xxxxxx
Xxxxxxxxxxx, a Delaware corporation ("Purchaser").
WHEREAS, ePresence, Inc., a Massachusetts corporation ("Seller") and
Purchaser are parties to an Asset Purchase Agreement, dated as of the date
hereof (as the same may be modified or amended from time to time, the "Purchase
Agreement"), which provides, among other things, for the sale by Seller to
Purchaser of certain of the assets of Seller used in carrying out Seller's
security and identity management business (the transactions contemplated by the
Purchase Agreement, the "Proposed Transaction");
WHEREAS, capitalized terms used herein and not otherwise defined shall
have the meanings assigned such terms in the Purchase Agreement;
WHEREAS, approval of the Proposed Transaction by Seller's stockholders
is a condition to the closing of the Proposed Transaction; and
WHEREAS, as a condition to entering into the Purchase Agreement,
Purchaser has required that Stockholder agree, and Stockholder has agreed, to
enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, and
intending to be legally bound hereby, each of the parties hereto agree as
follows:
Section 1. Representations and Warranties. Stockholder hereby
represents, warrants and covenants to Purchaser as follows:
(a) Title. As of the date hereof, Stockholder owns beneficially
and of record the number of shares of each class of capital stock of Seller set
forth on Exhibit A hereto (such shares, the "Shares"). The term "beneficial
owner" and all correlative expressions are used in this Agreement as defined in
Rules 13d-3 and 16a-1 under the Securities Exchange Act of 1934, as amended;
provided, however, that for the avoidance of doubt, Stockholder shall not be
deemed the beneficial owner of any shares of capital stock of Seller that
Stockholder has the right to acquire, such as shares issuable to Stockholder
upon the exercise of an option or warrant, unless and until such shares are
actually acquired by Stockholder and treated as Additional Shares pursuant to
Section 9 below.
(b) Right to Vote. As of the date hereof, except for this
Agreement or as otherwise permitted by this Agreement, Stockholder has full
legal power, authority and right to vote all of the Shares then owned of record
or beneficially by him or it, in favor of the approval and authorization of the
Proposed Transaction without the consent or approval of, or any other action on
the part of, any other Person. Without limiting the
generality of the foregoing, Stockholder has not entered into any voting
agreement (other than this Agreement) with any Person with respect to any of the
Shares, granted any Person any proxy (revocable or irrevocable) or power of
attorney with respect to any of the Shares, deposited any of the Shares in a
voting trust or entered into any arrangement or agreement with any Person
limiting or affecting Stockholder's legal power, authority or right to vote the
Shares on any matter.
From and after the date hereof, except as otherwise permitted by this
Agreement, Stockholder will not commit any act that could restrict or otherwise
affect Stockholder's legal power, authority and right to vote all of the Shares
then owned of record or beneficially by him or it. Without limiting the
generality of the foregoing, except for this Agreement and as otherwise
permitted by this Agreement, from and after the date hereof, 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 limiting or affecting Stockholder's legal power, authority or right to
vote the Shares in favor of the approval of the Proposed Transaction.
(c) Authority. Stockholder has full legal power, authority and
right to execute and deliver, and to perform his or its obligations under, this
Agreement. This Agreement has been duly and validly executed and delivered by
Stockholder and constitutes a valid and binding agreement of Stockholder
enforceable against him or it in accordance with its terms.
(d) Conflicting Instruments. The execution and delivery of this
Agreement and the performance by Stockholder of Stockholder's agreements and
obligations hereunder will not result in any breach or violation of or be in
conflict with or constitute a default under any term of any agreement, judgment,
injunction, order, decree, law, regulation or arrangement to which Stockholder
is a party or by which Stockholder (or any of the Shares) is bound or subject,
except for any such breach, violation, conflict or default which, individually
or in the aggregate, would not impair or adversely affect Stockholder's ability
to perform his or its obligations under this Agreement or render inaccurate any
of the representations made by Stockholder herein.
Section 2. Covenants. Until the termination of this Agreement in
accordance with Section 8, Stockholder hereby agrees as follows:
(a) Restrictions on Transfer. Stockholder shall not, directly or
indirectly, assign, sell, pledge, encumber, transfer (including transfers by
testamentary or intestate succession or otherwise by operation of law) or
otherwise dispose of (collectively, "Transfer"), or agree to Transfer, any of
the Shares owned of record or beneficially by Stockholder (or 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 proxy or otherwise); provided, however, that notwithstanding anything to the
contrary contained in this Agreement, (i) Stockholder may Transfer Shares to a
transferee if such transferee executes and delivers to Purchaser
2
a Voting Agreement in the form of this Agreement agreeing in writing to be bound
by the terms thereof and deemed the "Stockholder" thereunder and (ii) to the
extent set forth on Exhibit A hereto, the Shares are subject to a restricted
stock agreement with Seller, and nothing contained herein shall prohibit Seller
and Stockholder from complying with or exercising their respective obligations
and rights thereunder or prohibit Stockholder from reselling Shares to Seller to
the extent the proceeds therefrom are used to satisfy any tax obligation in
connection with the vesting or delivery of Shares pursuant to such restricted
stock agreement.
(b) Agreement to Vote. Stockholder hereby agrees to vote or to
cause to be voted all of the Shares owned of record or beneficially by
Stockholder as of the record date for such meeting or written consent, at the
Seller's Stockholders Meeting and at any other annual or special meeting of
stockholders of Seller where any such proposal is submitted, and in connection
with any written consent of stockholders, (A) in favor of the Proposed
Transaction and (B) against (i) approval of any Acquisition Proposal and (ii)
any other action that may reasonably be expected to impede, interfere with,
delay, postpone or attempt to discourage the consummation of the transactions
contemplated by the Purchase Agreement or result in a breach of any of the
covenants, representations, warranties or other obligations or agreements of
Seller under the Purchase Agreement, which would materially and adversely affect
Seller or Purchaser or their respective abilities to consummate the transactions
contemplated by the Purchase Agreement.
(c) Granting of Proxy. In furtherance of the terms and provisions
of this Agreement, Stockholder hereby grants an irrevocable proxy, coupled with
an interest, to Purchaser and any Purchaser-authorized representative or agent
to vote all of the Shares beneficially owned by Stockholder in favor of the
Proposed Transaction and in accordance with the provisions of Section 2(b) and
this Section 2(c). Stockholder hereby ratifies and approves of each and every
action taken by Purchaser and any Purchaser-authorized representative or agent
pursuant to the foregoing proxy. Notwithstanding the foregoing, if requested by
Purchaser, the Stockholder will execute and deliver applicable proxy material in
furtherance of the provisions of Section 2(b) and this Section 2(c).
(d) No Solicitation. Stockholder, in his or its capacity as a
stockholder, shall not directly or indirectly (i) solicit, initiate or encourage
(or authorize any Person to solicit, initiate or encourage), including by way of
furnishing information, any Acquisition Proposal, (ii) participate in any
discussions or negotiations regarding an Acquisition Proposal, (iii) furnish any
confidential information relating to Seller to any Person, other than Purchaser,
in connection with an Acquisition Proposal or (iv) assist, participate or
otherwise cooperate in any way in, or facilitate or encourage any effort or
attempt by any Person other than Purchaser to do or seek, any of the foregoing.
Section 3. Action in Stockholder Capacity Only. Stockholder makes
no agreement or understanding herein as director, officer or employee of Seller.
Stockholder signs solely in Stockholder's capacity as a record holder and
beneficial owner of Shares, and nothing herein shall limit or affect any actions
taken in his or its capacity as an officer, director or employee of Seller.
3
Section 4. Invalid Provisions. If any provision of this Agreement
shall be invalid or unenforceable under applicable law, such provision shall be
ineffective to the extent of such invalidity or unenforceability only, without
it affecting the remaining provisions of this Agreement.
Section 5. Executed in Counterparts. This Agreement may be executed
in counterparts each of which shall be an original with the same effect as if
the signatures hereto and thereto were upon the same instrument.
Section 6. Specific Performance. The parties hereto agree that the
failure for any reason of Stockholder to perform any of his or its agreements or
obligations under this Agreement would cause irreparable harm or injury with
respect to which money damages would not be an adequate remedy. Accordingly,
Stockholder agrees that, in seeking to enforce this Agreement against
Stockholder, Purchaser shall be entitled to specific performance and injunctive
and other equitable relief in addition to any other remedy available at law,
equity or otherwise.
Section 7. Governing Law; Submission to Jurisdiction. This
Agreement shall be governed by, and construed and enforced in accordance with,
the domestic laws of the Commonwealth of Massachusetts without giving effect to
any choice of law or conflict of law provision or rule (whether of the
Commonwealth of Massachusetts or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the Commonwealth of
Massachusetts. Each of the parties hereto irrevocably agrees that any legal
action or proceeding with respect to this Agreement or for recognition and
enforcement of any judgment in respect hereof brought by any other party hereto
or its successors or assigns shall be brought and determined in the state and
federal courts located in Boston, Massachusetts, and each of the parties hereto
hereby irrevocably submits with regard to any such action or proceeding for
itself and in respect to its property, generally and unconditionally, to the
exclusive jurisdiction of the aforesaid courts. Each of the parties hereto
hereby irrevocably waives, and agrees not to assert, by way of motion, as a
defense, counterclaim or otherwise, in any action or proceeding with respect to
this agreement, any claim (a) that it is not personally subject to the
jurisdiction of the aforesaid courts for any reason, (b) 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 judgment, execution
of judgment, or otherwise), and (c) to the fullest extent permitted by the
applicable law, that (i) the suit, action or proceeding in such courts is
brought in an inconvenient forum, (ii) the venue of such suit, action or
proceeding is improper and (iii) this agreement, or the subject matter hereof,
may not be enforced in or by such courts.
Section 8. Amendments; Termination; Modification.
(a) This Agreement may not be modified, amended, altered or
supplemented, except upon the execution and delivery of a written agreement
executed by the parties hereto.
4
(b) This Agreement shall terminate upon the earlier to occur of
(i) the date and time at which the Seller's Stockholder Approval is obtained,
(ii) the termination of the Purchase Agreement in accordance with its terms and
(iii) February 28, 2004.
Section 9. Additional Shares. If, after the date hereof,
Stockholder acquires beneficial or record ownership of any additional shares of
capital stock of Seller (any such shares, "Additional Shares"), including,
without limitation, upon exercise of any option, warrant or right to acquire
shares of capital stock of Seller or through any stock dividend or stock split,
the provisions of this Agreement applicable to the Shares shall thereafter be
applicable to such Additional Shares as if such Additional Shares had been
Shares as of the date hereof. The provisions of the immediately preceding
sentence shall be effective with respect to Additional Shares without action by
any person or entity immediately upon the acquisition by Stockholder of
beneficial ownership of such Additional Shares.
Section 10. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective legal successors (including, in the case of any individual
Stockholder, any executors, administrators, estates, legal representatives and
heirs of such Stockholder) and permitted assigns; provided, however, that,
except as otherwise provided in this Agreement, no party may assign, delegate or
otherwise transfer any of its rights or obligations under this Agreement without
the consent of the other party. Without limiting the scope or effect of the
restrictions on Transfer set forth in Section 2(a), Stockholder agrees that this
Agreement and the obligations hereunder shall attach to the Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of such
Shares shall pass, whether by operation of law or otherwise.
Section 11. Notices. All notices, requests, demands or other
communications required by or otherwise with respect to this Agreement shall be
in writing and shall be deemed given upon (a) confirmation of receipt of a
facsimile transmission, (b) confirmed delivery by a standard overnight carrier
or when delivered by hand, or (c) the expiration of four business days after the
day when mailed by registered or certified mail (postage prepaid, return receipt
requested), addressed to the respective parties at the following addresses:
If to Purchaser, to
Xxxxxx Xxxxxxxxxxx
Xxxxxx Xxx Xxxx Xxxx, XX 00000
Fax: 000-000-0000
Attention: General Counsel
5
If to Stockholder, to
HarbourVest Partners, LLC
Xxx Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
With a copy to:
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx, Xxxxxx, XX 00000
Fax: 000-000-0000
Attention: Xxxx X. Xxxxxx and Xxxxxxx X. Xxxxxx
6
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
XXXXXX XXXXXXXXXXX
By /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
HarbourVest Partners V-Direct Fund L.P.
By: HVP V-Direct Associates L.L.C.
Its General Partner
By: HarbourVest Partners, LLC
Its Managing Member
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Managing Director
[Signature Page to Voting Agreement]
EXHIBIT A
SECURITIES BENEFICIALLY OWNED
Stockholder Name Securities Beneficially Owned
HarbourVest Partners, LLC 2,631,580 Shares
