Exhibit 10.3
VOTING AGREEMENT
This VOTING AGREEMENT (the "Agreement"), dated as of February 18, 2000,
among the undersigned stockholders (the "Stockholders") of Data Systems Network
Corporation, a Michigan corporation ("DSNC"), Astratek, Inc., a New York
corporation ("Astratek"), and XxxXxxxxxx.Xxx, Inc., a Delaware corporation
("Tek").
STATEMENT OF PURPOSE
A. Concurrently with the execution of this Agreement, DSNC, Astratek
and Tek have entered into an Agreement and Plan of Merger (as the same may be
amended from time to time, the "Merger Agreement");
B. Each Stockholder is the record and beneficial owner of the number of
shares of DSNC's Common Stock set forth opposite its name on SCHEDULE 1 attached
hereto (the "Shares")
C. The approval of the Merger Agreement by the shareholders of DSNC is
a condition to the consummation of the Merger;
D. In order to induce Astratek and Tek to enter into the Merger
Agreement, the Stockholders wish to agree (i) to vote the Shares and any other
such shares of capital stock of DSNC owned by them so as to facilitate
consummation of the transactions contemplated by the Merger Agreement, (ii) not
to transfer or otherwise dispose of any of the Shares, or any other shares of
capital stock of DSNC acquired hereafter and prior to the Expiration Date (as
defined below) and (iii) to deliver an irrevocable proxy to vote the Shares to
Tek.
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which is hereby acknowledged, the parties hereto
agree as follows:
1. REPRESENTATIONS OF STOCKHOLDERS. Each of the Stockholders represents
and warrants (each as to himself or itself) to Astratek and Tek that (a) except
for shares pledged to lending institutions in connection with bona fide loan
transactions, in which case all voting rights relating to such shares are
retained by the Stockholder, such Stockholder lawfully owns the Shares set forth
opposite such Stockholder's name on SCHEDULE 1 free and clear of all liens,
claims, charges, security interests or other encumbrances and, except for this
Agreement, there are no options, warrants or other rights, agreements,
arrangements or commitments of any character to which such Stockholder is a
party relating to the pledge, disposition or voting of any shares of capital
stock of DSNC and there are no voting trusts or voting agreements with respect
to such Shares, (b) such Stockholder does not own any shares of Common Stock
other than such Shares and does not have any options (other than employee stock
options), warrants or other rights to acquire any additional shares of capital
stock of DSNC or any security exercisable for or convertible into shares of
capitol stock of DSNC, and (c) such Stockholder has full power and authority to
enter into, execute and deliver this Agreement and to perform fully such
Stockholder's obligations hereunder. This Agreement has been duly executed and
delivered and constitutes the legal, valid and binding obligation of such
Stockholder, enforceable in accordance with its terms.
2. AGREEMENT TO VOTE SHARES. Each of the Stockholders agrees during the
term of this Agreement to vote such Stockholder's Shares and any New Shares (as
defined in Section 6 hereof), and to cause any holder of record of such Shares
or New Shares to vote (a) in favor of adoption and approval of the Merger
Agreement, all agreements related to the Merger Agreement and any actions
related thereto at any meeting of the stockholders of DSNC at which such matters
are considered and at every adjournment thereof, (b) against any action or
agreement that would compete with, impede, interfere with or attempt (i) to
discourage the Merger Agreement, all agreements related to the Merger Agreement
and any actions related thereto or (ii) inhibit the timely consummation of the
Merger Agreement, all agreements related to the Merger Agreement and any actions
related thereto, and (c) against any other merger, consolidation, business
combination, reorganization, recapitalization, liquidation or sale or transfer
of any material assets of DSNC or its subsidiaries; PROVIDED, that the foregoing
clauses (b) and (c) shall not restrict any director of DSNC from taking any
action as a director that such director reasonably believes after consultation
with outside counsel is required to satisfy such director's fiduciary duty to
stockholders of DSNC. Each Stockholder agrees to deliver to Tek upon request a
proxy substantially in the form attached hereto as SCHEDULE 2, which proxy shall
be irrevocable during the term of this Agreement to the extent permitted under
applicable law.
3. NO VOTING TRUSTS. During the term of this Agreement, each of the
Stockholders agrees that such Stockholder will not, nor will such Stockholder
permit any entity under such Stockholder's control, to deposit any of such
Stockholder's Shares in a voting trust or subject any of their Shares to any
arrangement with respect to the voting of such Shares other than agreements
entered into with Tek.
4. NO PROXY SOLICITATIONS. During the term of this Agreement, each of
the Stockholders agrees that such Stockholder will not, nor will such
Stockholder permit any entity under such Stockholder's control to, (a) solicit
proxies or become a "participant" in a "solicitation," (as such terms are
defined in Regulation 14A under the Securities Exchange Act of 1934 (the "1934
Act") in opposition to or competition with the Merger Agreement, all agreements
related to the Merger Agreement and any actions related thereto, (b) otherwise
encourage or assist any party in taking or planning any action which would
compete with, impede, interfere with or attempt to discourage the Merger
Agreement, all agreements related to the Merger Agreement and any actions
related thereto or inhibit the timely consummation of the Merger Agreement, all
agreements related to the Merger Agreement and any actions related thereto, (c)
directly or indirectly encourage, initiate or cooperate in a stockholders' vote
or action by consent of DSNC's stockholders in opposition to or in competition
with the Merger Agreement, all agreements related to the Merger Agreement and
any actions related thereto, or (d) become a member of a "group" (as such term
is used in Section 13(d) of the 0000 Xxx) with respect to any voting securities
of DSNC for the purpose of opposing, competing with or impeding the consummation
of the Merger Agreement, all agreements related to the Merger Agreement and any
actions related thereto; PROVIDED, that the foregoing shall not restrict any
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director of DSNC from taking any action as a director that such director
reasonably believed after consultation with outside counsel is required to
satisfy such director's fiduciary duty to stockholders of DSNC.
5. TRANSFER AND ENCUMBRANCE. On or after the date hereof and during the
term of this Agreement, each of the Stockholders agrees not to transfer, sell,
offer, exchange, pledge or otherwise dispose of or encumber any of such
Stockholder's Shares or New Shares (other than the disposition in market
transactions of New Shares acquired upon exercise of any employee stock options,
on notice to Tek, as necessary to pay the tax liabilities incurred upon exercise
of any such options).
6. ADDITIONAL PURCHASES. Each of the Stockholders agrees that such
Stockholder will not purchase or otherwise acquire beneficial ownership of any
shares of DSNC Common Stock after the execution of this Agreement ("New
Shares"), nor will any Stockholder voluntarily acquire the right to vote or
share in the voting of any shares of DSNC Common Stock other than the Shares,
unless such Stockholder agrees to deliver to Tek immediately after such purchase
or acquisition an irrevocable proxy substantially in the form attached hereto as
SCHEDULE 2 with respect to such New Shares. Each of the Stockholders also
severally agrees that any New Shares acquired or purchased by him or her shall
be subject to the terms of this Agreement to the same extent as if they
constituted Shares.
7. SECURITIES ACT COVENANTS AND REPRESENTATIONS.
(a) Each Stockholder has been advised that the offering, sale and
delivery of the Common Stock pursuant to the Merger Agreement will be registered
under the Securities Act on a Registration Statement on Form S-4. Each
Stockholder has also been advised, however, that to the extent such Stockholder
is considered an "affiliate" of DSNC at the time the Merger Agreement is
submitted to a vote of the stockholders of DSNC, any public offering or sale by
such Stockholder of any shares of the Tek Preferred Stock received by
Stockholder in the Merger will, under current law, require either (i) the
further registration under the Securities Act of any shares of the Common Stock
to be sold by Stockholder, (ii) compliance with Rule 145 promulgated by the SEC
under the Securities Act or (iii) the availability of another exemption from
such registration under the Securities Act.
(b) Each Stockholder has read this Agreement and the Merger
Agreement and has discussed their requirements and other applicable limitations
upon such Stockholder's ability to sell, transfer or otherwise dispose of shares
of the Tek Preferred Stock with such Stockholder's counsel or counsel for DSNC,
to the extent such Stockholder believed necessary.
(c) Each Stockholder also understands that stop transfer
instructions will be given to DSNC's transfer agent with respect to the Tek
Preferred Stock and that a legend will be placed on the certificates for the Tek
Preferred Stock issued to such Stockholder, or any substitutions therefor, to
the extent such Stockholder is considered an "Affiliate" of DSNC at the time the
Merger Agreement is submitted to a vote of the shareholders of DSNC
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8. SPECIFIC PERFORMANCE. Each party hereto acknowledges that it will be
impossible to measure in money the damage to the other party if a party hereto
fails to comply with any of the obligations imposed by this Agreement, that
every such obligation is material and that, in the event of any such failure,
the other party will not have an adequate remedy at law or damages. Accordingly,
each party hereto agrees that injunctive relief or other equitable remedy, in
addition to remedies at law or damages, is the appropriate remedy for any such
failure and will not oppose the granting of such relief on the basis that the
other party has an adequate remedy at law. Each party hereto agrees that it will
not seek, and agrees to waive any requirement for, the securing or posting of a
bond in connection with any other party's seeking or obtaining such equitable
relief.
9. ENTIRE AGREEMENT. This Agreement supersedes all prior agreements,
written or oral, among the parties hereto with respect to the subject matter
hereof and contains the entire agreement among the parties with respect to the
subject matter hereof. This Agreement may not be amended, supplemented or
modified, and no provisions hereof may be modified or waived, except by an
instrument in writing signed by all the parties hereto. No waiver of any
provisions hereof by any party shall be deemed a waiver of any other provisions
hereof by any such party, nor shall any such waiver be deemed a continuing
waiver of any provision hereof by such party.
10. NOTICES. All notices, requests, claims, demands or other
communications hereunder shall be in writing and shall be deemed given when
delivered personally, upon receipt of a transmission confirmation if sent by
telecopy or like transmission and on the next business day when sent by Federal
Express, Express Mail or other reputable overnight xxxxx service to the parties
at the following addresses (or at such other address for a party as shall be
specified by like notice):
(a) If to Astratek and Tek:
XxxXxxxxxx.Xxx, Inc.
0 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxxxx Xxxxxxxx, Chief Technology Officer
With a copy to:
Xxxxx Xxxxxxx, LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx, Esq.
(b) If to a Stockholder, to the address or telecopy number set
forth for such Stockholder on the signature page hereof:
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(c) If to DSNC:
Data Systems Network Corporation
00000 X. 00 Xxxx Xxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
With a copy to:
Bodmau, Xxxxxxx & Xxxxxxx LL
000 Xxxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Xx.
11. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be deemed a contract made
under, and for all purposes shall be construed in accordance with, the laws of
the State of New York, without reference to principles of conflicts of law.
(b) SEVERABILITY. It any provision of this Agreement or the
application of such provision to any person or circumstances shall be held
invalid or unenforceable by a court of competent jurisdiction, such provision or
application shall be unenforceable only to the extent of such invalidity or
unenforceability and the remainder of the provision held invalid or
unenforceable and the application of such provision to persons or circumstances,
other than the party as to which it is held invalid, and the remainder of this
Agreement, shall not be affected.
(c) COUNTERPARTS. This Agreement may be executed by facsimile
in one or more counterparts, each of which shall be deemed to be an original but
all of which together shall constitute one and the same instrument.
(d) TERMINATION. This Agreement shall terminate upon the earliest to
occur of (i) the conclusion of DSNC's meeting of shareholders held for the
purpose of voting on the Merger Agreement (or, if adjourned, the conclusion of
any subsequent reconvened meeting held for such purpose), and (ii) the date on
which the Merger Agreement is terminated in accordance with its terms.
(e) ADDITIONAL DOCUMENTATION. Each party hereto shall execute and
deliver such additional documents as may be necessary or desirable to effect the
transactions contemplated by this Agreement.
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(f) HEADINGS. All Section heading hereto are for convenience of
reference any and are not part of this Agreement, and no construction or
reference shall be derived therefrom.
(g) BINDING EFFECT. The obligations of the Stockholders set forth in
this Agreement shall not be effective or binding upon any Stockholder until
after such time as the Merger Agreement is executed and delivered by DSNC,
Astratek and Tek, and the parties agree that there is not and has not been any
other agreement, arrangement or understanding between the parties hereto with
respect to the matters set forth herein. The obligations of each Stockholder who
executes and delivers this Agreement shall be effective and binding regardless
of the failure of other Stockholders to execute and deliver this Agreement. This
Agreement shall be binding upon and shall inure to the benefit of the parties
and their respective successors and assigns.
(h) EXPENSES. The parties hereto shall each bear its own expenses
incurred in connection with this Agreement and the transactions contemplated
hereby, except that in the event of a dispute concerning the terms or
enforcement of this Agreement, the prevailing party in any such dispute shall be
entitled to reimbursement of reasonable legal fees and disbursements from the
other party or parties to such dispute.
(i) CAPITALIZED TERMS. All capitalized terms that are not otherwise
defined in this Agreement shall have the meanings ascribed thereto in the Merger
Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the date first written above.
DATA SYSTEMS NETWORK CORPORATION
ATTEST:
By:/s/Xxxxxxx X. Xxxxxxx
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, Secretary Name: Xxxxxxx X. Xxxxxxx
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[Corporate Seal] Title: President
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XXXXXXXXXX.XXX, INC.
ATTEST:
/s/Xxxxxxx Xxxxx By:/s/Xxxxxxxxx Xxxxxxxx
---------------------- ------------------------------
Xxxxxxx Xxxxx, Secretary Name: Xxxxxxxxx Xxxxxxxx
------------- ----------------------------
[Corporate Seal] Title: Chief Technology Officer
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ASTRATEK, INC.
ATTEST:
/s/Xxxxxxx Xxxxx By:/s/Xxxxxxxxx Xxxxxxxx
---------------------- ------------------------------
Xxxxxxx Xxxxx, Secretary Name: Xxxxxxxxx Xxxxxxxx
----------- ----------------------------
[Corporate Seal] Title: President
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STOCKHOLDERS:
/s/Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
/s/Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
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Schedule 1
Shares of DSNC
COMMON STOCK
Xxxxxxx X. Xxxxxxx 707,500
Xxxxxxx X. Xxxxxxxx 140,625
Xxxxxxx X. Xxxxx 361,250
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Schedule 2
Irrevocable Proxy
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IRREVOCABLE PROXY
THIS IRREVOCABLE PROXY is made by the undersigned stockholder (the
"Stockholder") of Data Systems Network Corporation, a Michigan corporation
("DSNC") in favor of XxxXxxxxxx.Xxx, Inc., a Delaware corporation ("Tek"), and
is dated as of February ____, 2000.
WHEREAS, pursuant to an Agreement and Plan of Merger (the "Merger
Agreement"), dated as of the date hereof, among DSNC, Tek, Astratek, Inc., a New
York corporation ("Astratek"), Tek shall acquire DSNC by virtue of the merger of
DSNC with and into Astratek, a wholly-owned subsidiary of Tek (the "Merger").
WHEREAS, pursuant to a Voting Agreement, dated the date hereof (the
"Voting Agreement"), the Stockholder has agreed to vote the Shares (as defined
in the Voting Agreement) and any other shares of capital stock of DSNC owned by
him and which he may have acquired after the date of the Voting Agreement (the
"New Shares," and collectively with the Shares, the "Voting Shares") so as to
facilitate the consummation of the transactions contemplated by the Merger
Agreement.
WHEREAS, the Stockholder currently owns ________ shares of DSNC's
Common Stock, par value $.01 per share; and
WHEREAS, the execution and delivery of this irrevocable proxy is a
condition precedent to the execution and delivery of the Merger Agreement by Tek
and Astratek.
NOW, THEREFORE, effective upon the execution and delivery of the Merger
Agreement, the Stockholder does hereby irrevocably constitute and appoint XXXXX
XXXXXXXXX AND XXXXX XXXXXXXXXX, OR EITHER OF THEM ACTING SINGLY, as his proxy,
with full power of substitution, for and in his name, place, and xxxxx, to
attend any special meeting of the stockholders of DSNC, and any adjournments
thereof, called for the purpose of adopting and approving the Merger Agreement,
and to vote at such special meeting or adjournment thereof all of the Voting
Shares which the Stockholder would be entitled to vote if personally present, in
accordance with Section 2 of the Voting Agreement and with the authority to
execute consents in lieu thereof and waivers of notice in connection therewith;
PROVIDED, HOWEVER, that this irrevocable proxy automatically shall terminate
simultaneously with the termination of the Merger Agreement.
Except as herein stated, this proxy is irrevocable. Any proxies
heretofore given by the Stockholder to any person are hereby revoked.
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Stockholder
