EXHIBIT 99.1
VOTING AGREEMENT
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This VOTING AGREEMENT (this "Agreement") is made and entered into as of
May 2, 2007, by and among INVENSYS SYSTEMS, INC., a Massachusetts corporation
("Parent"), SIDUS ACQUISITION CORP., a Delaware corporation and wholly-owned
subsidiary of Parent ("Merger Sub"), each undersigned stockholder (each, a
"Stockholder") of CIMNET, INC., a Delaware corporation (the "Company"), and,
solely for the purposes of Section 4.3 hereof, the Company. Capitalized terms
used and not otherwise defined herein shall have the respective meanings set
forth in the Merger Agreement (defined below).
W I T N E S S E T H:
WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of even
date herewith, by and among Parent, Merger Sub and the Company (the "Merger
Agreement"), Parent has agreed to acquire the outstanding capital stock of the
Company pursuant to a statutory merger of Merger Sub with and into the Company
in which outstanding shares of capital stock of the Company will be converted
into the right to receive, in the aggregate, the Total Merger Consideration;
WHEREAS, as a condition to the willingness of Parent and Merger Sub to
enter into the Merger Agreement and as an inducement and in consideration
therefor, each Stockholder has agreed to enter into this Agreement; and
WHEREAS, each Stockholder is the record and legal owner of that number
of shares of common stock, par value $0.0001 per share ("Common Stock") of the
Company set forth opposite such Stockholder's name on Exhibit A hereto (the
"Shares") (such Shares, together with any New Shares (as defined in Section
1.2), being referred to herein as the "Subject Shares").
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, the parties hereby agree as follows:
1. Agreement to Retain Subject Shares.
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1.1 Prior to the Expiration Date (as defined below), each
Stockholder agrees not to: (a) transfer, assign, sell, gift-over, pledge or
otherwise dispose of, or consent to any of the foregoing, any or all of the
Subject Shares or any right or interest therein ("Transfer"); (b) enter into any
contract, option or other agreement, arrangement or understanding with respect
to any Transfer; (c) grant any proxy, power-of-attorney or other authorization
or consent with respect to any of the Subject Shares (other than the proxy
contemplated in Section 3 herein); or (d) deposit any of the Subject Shares into
a voting trust, or enter into a voting agreement or arrangement with respect to
any of the Subject Shares. As used herein, the term "Expiration Date" shall mean
the earlier to occur of (x) the Effective Time, or (y) termination of the Merger
Agreement in accordance with the terms thereof.
1.2 "New Shares" means:
(a) any shares of capital stock or voting securities of
the Company that a Stockholder purchases or with respect to which such
Stockholder otherwise acquires beneficial ownership (whether through the
exercise of any options, warrants or other rights to purchase shares of Common
Stock or otherwise) after the date of this Agreement and prior to the Expiration
Date; and
(b) any shares of capital stock or voting securities of
the Company that a Stockholder becomes the beneficial owner of as a result of
any change in Common Stock by reason of a stock dividend, stock split, split-up,
recapitalization, reorganization, business combination, consolidation, exchange
of shares, or any similar transaction or other change in the capital structure
of the Company affecting the Common Stock.
2. Agreement to Vote Subject Shares and Take Certain Other
Action.
2.1 Prior to the Expiration Date, at every meeting of the
stockholders of the Company, however called, or in connection with any written
consent of the stockholders of the Company at which any of the following matters
is considered or voted upon, and at every adjournment or postponement thereof,
each Stockholder shall vote or cause to be voted his/her Subject Shares:
(a) in favor of the Merger, the adoption of the Merger
Agreement and the transactions contemplated thereby;
(b) against approval of any proposal made in opposition
to or competition with consummation of the Merger;
(c) against any Takeover Proposal from any party other
than Parent or an Affiliate of Parent;
(d) against any extraordinary corporate transaction
(other than the Merger), such as a merger, consolidation, business combination,
tender or exchange offer, reorganization, recapitalization, sale, lease or
transfer of a material amount of the assets or securities of the Company (other
than in connection with the Merger);
(e) against any proposal or action which could reasonably
be expected to, impede, frustrate, prevent, prohibit, delay or discourage any of
the transactions contemplated by the Merger Agreement;
(f) against any amendment of the Company Certificate or
the Company By-laws, which has the effect of or which could reasonably be
expected to impede, frustrate, prevent, prohibit, delay or discourage any of the
transactions contemplated by the Merger Agreement; and
(g) against any dissolution, liquidation or winding up of
the Company.
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2.2 Prior to the Expiration Date, each Stockholder, as the holder
of the Subject Shares set forth opposite his/her name on Exhibit A hereto, shall
be present, in person or by proxy, at all meetings of stockholders of the
Company at which the matters referred to in Section 2.1 are to be voted upon so
that all Subject Shares are counted for the purposes of determining the presence
of a quorum at such meetings.
2.3 Between the date of this Agreement and the Expiration Date,
each Stockholder agrees not to, and will not permit any entity under such
Stockholder's control (other than the Company) to, (a) solicit proxies or become
a "participant" in a "solicitation" (as such terms are defined in Rule 14A under
the Exchange Act) with respect to an Opposing Proposal (as defined below) or (b)
initiate a stockholders' vote with respect to an Opposing Proposal or (c) become
a member of a "group" (as such term is used in Section 13(d) of the Exchange
Act) with respect to any voting securities of the Company with respect to an
Opposing Proposal. For purposes of this Agreement, the term "Opposing Proposal"
means any of the actions or proposals described in clauses (b) through (g) of
Section 2.1; provided, however, that notwithstanding anything to the contrary
contained herein, at any time prior to the Expiration Date, each Stockholder and
his/her Representatives shall be permitted to participate in any discussions or
negotiations with any Person regarding an Opposing Proposal to the extent that
(x) such Stockholder's participation is requested by the Company, and (y) such
discussions or negotiations, if conducted by the Company, would then be
permitted under the terms of the Merger Agreement. For purposes of this
Agreement, the term "Representative" means each agent and representative
(including without limitation any investment banker, financial advisor,
attorney, accountant or other representative retained by or acting on behalf of
any Stockholder).
2.4 Nothing in this Agreement shall limit or restrict any
Stockholder from (a) taking any action in such Stockholder's capacity as a
director of the Company, to the extent applicable, or (b) voting, in such
Stockholder's sole discretion, on any matter other than the matters referred to
in Section 2.1 of this Agreement.
3. Grant of Irrevocable Proxy Coupled with an Interest.
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3.1 Each Stockholder hereby revokes any and all other proxies in
respect of any Subject Shares and agrees that during the period commencing on
the date hereof and ending on the Expiration Date, such Stockholder hereby
irrevocably appoints Parent, Merger Sub or any individual designated by Parent
or Merger Sub as such Stockholder's agent, attorney-in-fact and proxy (with full
power of substitution), for and in the name, place and stead of such
Stockholder, to vote (or cause to be voted) the Subject Shares held of record by
such Stockholder, in the manner set forth in Section 2.1, at any meeting of the
stockholders of the Company, however called, or in connection with any written
consent of the stockholders of the Company. Parent may terminate this proxy with
respect to any Stockholder at any time at its sole election by written notice
provided to such Stockholder.
3.2 Each Stockholder acknowledges that the proxy set forth in this
Section 3 is irrevocable until the Expiration Date, is coupled with an interest,
and is granted in consideration of Parent and Merger Sub entering into the
Merger Agreement. Each Stockholder will take such further action or execute such
other instruments as may be necessary to effectuate the intent of this proxy
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and/or this Agreement. The proxy granted herein is intended to comply with the
requirements of Section 212 of the DGCL applicable to irrevocable proxies.
3.3 The vote of the proxyholder shall control in any conflict
between the vote by the proxyholder of Stockholder's Subject Shares and a vote
by Stockholder of Stockholder's Subject Shares.
4. Representations, Warranties and Covenants of Stockholder. Each
Stockholder, severally and not jointly, hereby represents, warrants and
covenants to Parent as follows:
4.1 (a) Such Stockholder is the record owner of the Subject
Shares; (b) the Subject Shares set forth opposite his/her name on Exhibit A
hereto constitute such Stockholder's entire interest in the outstanding capital
stock and voting securities of the Company as of the date hereof; (c) the
Subject Shares are, and will be, at all times up until the Expiration Date, free
and clear of any liens, claims, options, charges, security interests, proxies,
voting trusts, agreements, rights, understandings or arrangements, or exercise
of any rights of a stockholder in respect of the Subject Shares or other
encumbrances; (d) such Stockholder has voting power and the power of disposition
with respect to all of the Subject Shares set forth opposite his/her name on
Exhibit A hereto outstanding on the date hereof, and will have voting power and
power of disposition with respect to all of the Subject Shares acquired by such
Stockholder after the date hereof; and (e) such Stockholder's principal
residence or place of business is accurately set forth on Exhibit A hereto.
4.2 Such Stockholder has full power and legal capacity to execute
and deliver this Agreement and to comply with and perform such Stockholder's
obligations hereunder. This Agreement has been duly and validly executed and
delivered by such Stockholder and constitutes the valid and binding obligation
of such Stockholder, enforceable against such Stockholder in accordance with its
terms. The execution and delivery of this Agreement by such Stockholder does
not, and the performance of Stockholder's obligations hereunder will not 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 right to
terminate, amend, accelerate or cancel any right or obligation under, or result
in the creation of any lien or encumbrance on any Subject Shares pursuant to,
any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which Stockholder is a
party or by which Stockholder or the Subject Shares are or will be bound or
affected.
4.3 Each Stockholder hereby unconditionally and irrevocably
instructs the Company not to and the Company shall not, (a) permit the Transfer
of, or any grant of authority to vote with respect to, his/her Subject Shares,
in violation of this Agreement on its books and records by such Stockholder, (b)
issue a new certificate representing any such Subject Shares or (c) record such
vote unless and until such Stockholder shall have complied with the terms of
this Agreement.
4.4 Each Stockholder shall, and shall cause each of his/her
Representatives (each, a "Stockholder Representative") to, immediately cease any
discussions or negotiations with any other parties conducted heretofore (other
than Parent and its Affiliates) with respect to any Takeover Proposal. Each
Stockholder shall not, nor shall it permit his/her Stockholder Representatives
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to, directly or indirectly through another person, (i) solicit, initiate or
encourage (including by way of furnishing non-public information), or take any
other action to facilitate, any inquiries or the making of any proposal that
constitutes a Takeover Proposal or (ii) solicit, initiate, encourage, facilitate
or otherwise participate in any discussions or negotiations regarding, or
otherwise cooperate in any way with, any Takeover Proposal. Notwithstanding the
foregoing, the Stockholder shall not be deemed to have acted in violation of the
provisions of this Section 4.4 if (i) it shall respond to an unsolicited
Takeover Proposal by doing nothing more than providing the party making such
unsolicited Takeover Proposal (the "Interested Acquiror") copies of the Merger
Agreement prior to the time that the Merger Agreement is publicly filed with the
SEC, (ii) in response to a specific request made by an Interested Acquiror, the
Company's legal counsel engages in non-substantive discussions with the
Interested Acquiror for the sole purpose of clarifying the procedural
requirements set forth in Sections 5.02, 6.05, and 8.01 of the Merger Agreement
to be followed by the Interested Acquiror, the Company, and the Company's Board
of Directors as a condition precedent to consummation by such Interested
Acquiror of a Takeover Proposal, or (iii) the Stockholder shall provide
financial information or other information regarding the Company pursuant to
contractual obligations of the Company existing as of the date hereof and set
forth in Section 5.02(a) of the Company Disclosure Letter, if and only if the
party receiving such information from the Company is a party to such contractual
obligation and such party is not a person making a Takeover Proposal; provided,
however, that the Stockholder shall provide Parent as promptly as reasonably
practicable (and, in any event, within 24 hours) with oral and written notice of
any actions taken pursuant to the penultimate sentence of this Section 4.4.
Without limiting the foregoing, it is agreed that any violation of the foregoing
by the Stockholders or any Stockholder Representative shall be a violation of
Section 5.02 of the Merger Agreement by the Company.
4.5 Each Stockholder hereby agrees to notify Parent as promptly as
practicable (an in any event within 24 hours after receipt) in writing of (i)
the number of New Shares which the Stockholder acquires on or after the date
hereof, and (ii) any inquiries or proposals which are received by, any
information which is requested from, or any negotiations or discussions which
are sought to be initiated or continued with, the Stockholder or any of its
Representatives with respect to any Takeover Proposal or any other matter
referred to in Section 4.4 above (including the material terms thereof and the
identity of such person(s) making such inquiry or proposal, requesting such
information or seeking to initiate or continue such negotiations or discussions,
as the case may be). Each Stockholder will keep Parent informed on a reasonably
current basis of material developments with respect to such Takeover Proposal.
5. Termination. This Agreement and the proxy granted pursuant to
Section 3 hereof and all obligations of each Stockholder hereunder and
thereunder shall terminate and shall have no further force or effect as of the
Expiration Date.
6. Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced under 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 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, this Agreement shall
automatically be deemed to be modified so as to effect the original intent of
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the parties as closely as possible in order that the transactions contemplated
hereby be consummated as originally contemplated to the greatest extent
possible.
7. Binding Effect and Assignment. Neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned, in whole or
in part, by operation of Law or otherwise by any of the parties without the
written consent of the other parties, except that Merger Sub may assign, in its
sole discretion, any of or all its rights, interests and obligations under this
Agreement to Parent or to any direct or indirect wholly owned Subsidiary of
Parent, provided that no such assignment shall relieve Merger Sub of any of its
obligations hereunder. Subject to the preceding sentence, this Agreement will be
binding upon, inure to the benefit of, and be enforceable by, the parties and
their respective successors and assigns. Any assignment in violation of the
preceding sentence shall be void.
8. Amendment and Modification. This Agreement may not be amended
except by an instrument in writing signed on behalf of each of the parties
hereto.
9. Specific Performance; Injunctive Relief. The parties hereto
acknowledge that Parent will be irreparably harmed and that there will be no
adequate remedy at Law for a violation of any of the covenants or agreements of
each Stockholder set forth herein. Therefore, it is agreed that, in addition to
any other remedies that may be available to Parent upon any such violation,
Parent shall have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available to Parent at Law
or in equity and each such Stockholder hereby waives any and all defenses which
could exist in his/her favor in connection with such enforcement and waives any
requirement for the security or posting of any bond in connection with such
enforcement.
10. Notices. All notices, requests, claims, demands, waivers and
other communications hereunder shall be in writing and shall be deemed given if
delivered personally, or sent by overnight courier (providing proof of delivery)
or transmitted by facsimile to the parties at the following addresses (or at
such other address for a party as shall be specified by like notice):
if to Parent or Merger Sub, to:
Invensys Systems, Inc.
c/o Invensys plc
Xxxxxxxx Xxxxx
Xxxxxxxxxx Xxxxx
Xxxxxx XX0X 0XX
Attention: Company Secretary
Facsimile No.: 00.000.000.0000
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with copies to (which shall not constitute notice):
McGuireWoods LLP
Xxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx III
Facsimile No.: 804.698.2249
and
Invensys Systems, Inc.
Wonderware Business Unit
00000 Xxxxxx Xxxxxxx Xxxxx
Xxxx Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile No.: 949.639.1463
if to the Company, to:
CIMNET, Inc.
000 Xxxxxxxxx Xxxx.
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxxx, Chief Executive Officer
Facsimile No.: 610.736.0230
with a copy to (which shall not constitute notice):
Xxxxx & Xxxxxxx LLP
Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx
Facsimile No.: 212.938.2812
11. Expenses. Each party hereto shall pay their own expenses
incurred in connection with this Agreement.
12. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the Laws of the State of Delaware, regardless of
the Laws that might otherwise govern under applicable principles of conflict of
laws thereof.
13. Submission to Jurisdiction. Each party hereby irrevocably and
unconditionally agrees that any action, suit or proceeding, at Law or equity,
arising out of or relating to this Agreement or any agreements or transactions
contemplated hereby shall only be brought in any federal court of the State of
Delaware or the Court of Chancery of the State of Delaware, and hereby
irrevocably and unconditionally expressly submits to the personal jurisdiction
and venue of such courts for the purposes thereof and hereby irrevocably and
unconditionally waives (by way of motion, as a defense or otherwise) any and all
jurisdictional, venue and convenience objections or defenses that such party may
have in such action, suit or proceeding. Each party hereby irrevocably and
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unconditionally consents to the service of process of any of the aforementioned
courts, in the manner provided for notice in Section 10 or otherwise. Nothing
herein contained shall be deemed to affect the right of any party to serve
process in any manner permitted by Law or commence legal proceedings or
otherwise proceed against any other party in any other jurisdiction to enforce
judgments obtained in any action, suit or proceeding brought pursuant to this
Section 13.
14. No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with their obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by such
party of their right to exercise any such or other right, power or remedy or to
demand such compliance.
15. Entire Agreement; No Third-Party Beneficiaries. This Agreement
(a) constitutes the entire agreement, and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter of this Agreement and (b) is not intended to confer upon any
Person other than the parties any rights or remedies.
16. Counterparts; Fax Signatures. This Agreement may be executed
in one or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have been
signed by each of the parties and delivered to the other parties. Signatures on
this Agreement and certain other documents to be delivered in connection with
this Agreement may be delivered by facsimile in lieu of an original signature,
and Parent, Merger Sub, each of the Stockholders and the Company agree to treat
such signatures as original signatures and shall be bound thereby.
17. Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
18. Several Liabilities. The representations, warranties,
covenants and agreements of each Stockholder are made and given severally only,
and not jointly and severally, and no Stockholder shall have any liability to
Parent, Merger Sub, the Company or any other person for any breach of this
Agreement by any other Stockholder party hereto.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the date first above written.
INVENSYS SYSTEMS, INC.
By: /s/ XXXXXX XXXXXXXXX
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Attorney In Fact
SIDUS ACQUISITION CORP.
By: /s/ XXXXXX XXXXXXXXX
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Attorney In Fact
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CIMNET, INC.
(solely for purposes of Section 4.3)
By: /s/ XXXX X. XXXXXXXXXX
------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: President and CEO
STOCKHOLDERS:
/s/ XXXX X. XXXXXXXXXX
-----------------------------------------
Xxxx X. Xxxxxxxxxx, individually
/s/ XXXX XXXXXXXXXX
-----------------------------------------
Xxxx Xxxxxxxxxx, individually
/s/ XXXXX XXXXXXXX
-----------------------------------------
Xxxxx Xxxxxxxx, individually
/s/ XXXXXXX XXXXXX
-----------------------------------------
Xxxxxxx Xxxxxx, individually
/s/ XXXX XXXXX
-----------------------------------------
Xxxx Xxxxx, individually
/s/ XXXXX XXXX
-----------------------------------------
Xxxxx Xxxx, individually
/s/ XXXXX XXXXX
-----------------------------------------
Xxxxx Xxxxx, individually
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/s/ J. XXXXXXX XXX
-----------------------------------------
J. Xxxxxxx Xxx, individually
/s/ XXXX XXXXXXX
-----------------------------------------
Xxxx Xxxxxxx, individually
/s/ XXXX X. XXXXXX and XXXXXXX XXXXXX
-----------------------------------------
Xxxx X. Xxxxxx and Xxxxxxx Xxxxxx,
joint tenants
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EXHIBIT A
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Stockholder Existing Shares Address
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Xxxx X. Xxxxxxxxxx 3,060,000 000 Xxxxxxxxx Xxxx.
Xxxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
Xxxxx Xxxxxxxxxx 200,000 00 Xxxxx Xxxx
Xxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
Xxxxx Xxxxxxxx 59,677 000 Xxxxxxxxx Xxxx.
Xxxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
Xxxxxxx Xxxxxx 425,312 000 Xxxxxxxxx Xxxx.
Xxxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
Xxxxx Xxxxx 11,200 000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
Xxxxx Xxxx 5,000 00 Xxxxx Xxxx Xxxxxx
Xxxxxx, XX 00000
--------------------------------------------------------------------------------
Xxxxx Xxxxx 112,269 0X Xxxxxxx Xxxxxx
Xxxx XXX 0000
Xxxxxxxxx
--------------------------------------------------------------------------------
J. Xxxxxxx Xxx 20,000 000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
Xxxx Xxxxxxx 125,000 000 Xxxxxxxxx Xxxx
Xxxxxx, XX 00000
--------------------------------------------------------------------------------
Xxxx X. Xxxxxx and 100,000 0 Xxxxx Xxxxxx
Xxxxxxx Xxxxxx Xxx Xxxx, XX 00000
--------------------------------------------------------------------------------
Total: 4,118,458
--------------------------------------------------------------------------------
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