VOTING AND LOCK-UP AGREEMENT
This
Voting and Lock-Up Agreement (this “Agreement”) is made as of August 18, 2008,
by and between GCA II Acquisition Corp., a Delaware corporation (“Parent”) and
Xxxxx X. Xxxxx, a principal stockholder of SecurLinx Holding Corp., a Delaware
corporation (the “Company”)(the “Company Principal Stockholder”).
WHEREAS,
concurrently with the execution and delivery of this Agreement, Parent,
SecurLinx Acquisition Corp., a Delaware corporation and wholly-owned subsidiary
of Parent (“Merger Sub”) and the Company are entering into an Agreement and Plan
of Merger (the “Merger Agreement”), pursuant to which Merger Sub will be merged
with and into the Company, and the Company shall be the surviving corporation
following the merger (the “Merger”);
WHEREAS,
as of the date hereof, the Company Principal Stockholder is a Beneficial Owner
(as defined below) of the Subject Shares (as defined
below); and
WHEREAS,
in order to induce Parent to enter into the Merger Agreement, the Company
Principal Stockholder has agreed to enter into this Agreement;
NOW,
THEREFORE, in consideration of the foregoing premises and of the covenants
and
agreements set forth herein and in the Merger Agreement, and intending to be
legally bound hereby, the parties agree as follows:
1. Definitions.
(a) “Beneficially
Own” or “Beneficial Owner”
with
respect to any securities means having “beneficial ownership” as determined
pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”).
(b) “Company
Capital Stock”
means
shares of common stock, par value $0.001 per share, of the
Company.
(c) “Company
Options and Other Rights”
means
options, warrants and other rights to acquire, directly or indirectly, shares
of
Company Capital Stock.
(d) “Expiration
Date”
means
the earlier to occur of (i) the Effective Time (as defined in the Merger
Agreement) or (ii) the date on which the Merger Agreement is terminated
pursuant to its terms.
(e) “Subject
Shares”
means
(i) all shares of Company Capital Stock Beneficially Owned by the Company
Principal Stockholder as of the date of this Agreement and (ii) all
additional shares of Company Capital Stock of which the Company Principal
Stockholder acquires Beneficial Ownership during the period from the date of
this Agreement through the Expiration Date.
2. Voting
Agreement.
(a) The
Company Principal Stockholder hereby reresents that it is an “accredited
investor” as such term is defined within Rule 501 of Regulation D promulgated
under the Securities Act of 1933, as amended (the “Securities Act”);
(b) The
Company Principal Stockholder hereby agrees that, prior to the Expiration Date,
at any meeting of the stockholders of the Company, however called, and in any
written action by consent of stockholders of the Company, unless otherwise
directed in writing by Parent, the Company Principal Stockholder shall cause
to
be counted as present thereat for purposes of establishing a quorum and, subject
only to Parent’s compliance with applicable securities laws, shall vote, or
cause to be voted, any and all Subject Shares Beneficially Owned by the
Company Principal Stockholder as of the record date of such meeting or written
consent:
(i) “FOR”
the
execution and delivery by the Company of the Merger Agreement and the adoption
and approval of the Merger Agreement and the terms thereof, in favor of each
of
the other actions contemplated by the Merger Agreement and in favor of any
action in furtherance of any of the foregoing;
(ii) “AGAINST”
any action or agreement that would result in a breach of any representation,
warranty, covenant or obligation of the Company in the Merger
Agreement; and
(iii) “AGAINST”
the following actions (other than the Merger and the transactions contemplated
by the Merger Agreement): (A) any extraordinary corporate transaction, such
as a merger, consolidation or other business combination involving the Company
or any subsidiary of the Company; (B) any sale, lease, sublease, license,
sublicense or transfer of a material portion of the rights or other assets
of
the Company or any subsidiary of the Company; (C) any reorganization,
recapitalization, dissolution or liquidation of the Company or any subsidiary
of
the Company; (D) any change in the individuals who serve as members of the
board of directors of the Company; (E) any amendment to the Company’s
certificate of incorporation or bylaws; (F) any material change in the
capitalization of the Company or the Company’s corporate structure; and
(G) any other action which is intended, or could reasonably be expected, to
impede, interfere with, delay, postpone, discourage or adversely affect the
Merger or any of the other transactions contemplated by the Merger Agreement
or
this Agreement.
(c) No
provision contained in this Agreement shall prohibit the Company Principal
Stockholder from voting in his capacity as a director of the Company in any
manner whatsoever.
(d) Prior
to
the Expiration Date, the Company Principal Stockholder shall not enter into
any
other agreement or understanding with any Person requiring him to vote in his
capacity as a stockholder or give instructions in any manner inconsistent with
clause “(i),” clause “(ii)” or clause “(iii)” of Section 2(b).
(e) The
Company Principal Stockholder hereby waives and agrees not to exercise any
applicable “appraisal rights” under the Delaware General Corporation Law with
respect to the Subject Shares in connection with the Merger and the Merger
Agreement.
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3. Lock-up
Agreement.
(a) In
consideration of the issuance of common stock of Parent in exchange for the
Subject Shares (the “Parent Shares”) to the Company Principal Stockholder
pursuant to the terms of the Merger Agreement, and of other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
and
notwithstanding any registration on the part of the Parent Shares under the
Securities Act, the Company Principal Stockholder agrees that, during the period
beginning from the Effective Time (as defined in the Merger Agreement) and
continuing until the date one (1) year thereafter (the “Release Date”), the
Company Principal Stockholder shall not (a) offer, sell, contract to sell,
pledge, grant any option to purchase, make any short sale or otherwise dispose
of any Parent Shares, or (b) engage directly or indirectly in any
transaction the likely result of which would involve a transaction prohibited
by
clause (a), except in each case as permitted by Section 3(e) below.
Following the Release date, and regardless of whether any such shares are
registered for resale or not, the Company Principal Stockholder shall restrict
all sales of Parent Shares for one (1) additional year to an amount which,
when
taken together with all sales by the Company Principal Stockholder of Parent
Shares within the then-preceding three months, shall not exceed the greater
of:
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one
percent (1%) of the total Parent Shares then issued and outstanding
as
shown by the most recent publicly filed report or statement published
by
the Parent; or
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(ii)
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the
average weekly reported volume of trading in Parent Shares on all
national
securities exchanges and/or reported through the automated quotation
system of a registered securities association during the four calendar
weeks preceding the date of receipt of the order to execute the
transaction by the broker or the date of execution of the transaction
directly with a market maker.
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(b) The
foregoing restriction is expressly agreed to preclude the Company Principal
Stockholder from engaging in any hedging or other transaction which is designed
to, or reasonably expected to lead to, or result in, a sale or disposition
of
the Parent Shares even if such shares would be disposed of by someone other
than
the Company Principal Stockholder. Such prohibited hedging or other transactions
would include without limitation any short sale or any purchase, sale or grant
of any right (including without limitation any put or call option) with respect
to any of the Parent Shares or with respect to any security that includes,
relates to, or derives any significant part of its value from the Parent
Shares.
(c) The
Company Principal Stockholder further represents and agrees that the undersigned
has not taken and will not take, directly or indirectly, any action which is
designed to or which has constituted or which might reasonably be expected
to
cause or result in stabilization or manipulation of the price of any security
of
Parent to facilitate the sale or resale of the Parent Shares, or which has
otherwise constituted or will constitute any prohibited bid for or purchase
of
the Parent Shares or any related securities.
(d) The
Company Principal Stockholder acknowledges and agrees that, pending the Release
Date, any additional Parent Shares acquired by such Stockholder upon exercise
of
replacement stock options may not be sold or otherwise transferred
notwithstanding that a registration statement on Form S-8 or Form S-4
may be effective with respect to the exercise of such options and the sale
of
Parent Shares obtained thereby.
(e) Notwithstanding
the foregoing restrictions on transfer, the Company Principal Stockholder may
transfer the Parent Shares (i) in an amount not to exceed five percent (5%)
of the total amount of Parent Shares received by the Company Principal
Stockholder pursuant to the Merger; provided
however,
that
such Parent Shares may not be transferred unless the Parent Shares are
registered under the Securities Act, or (ii) as transfers by will or
intestacy, or (iii) to any trust for the direct or indirect benefit of the
Company Principal Stockholder or his immediate family; provided
however,
that any such transfer shall not involve a disposition for value. For purposes
of this letter agreement, “immediate family” shall mean any relationship by
blood, marriage or adoption, not more remote than first cousin.
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(f) The
Company Principal Stockholder now has, and, except as contemplated by the
preceding paragraph (e), at all times prior to the Release Date will have,
good and marketable title to the Parent Shares still owned by him, free and
clear of all liens, encumbrances, and claims whatsoever. The Company Principal
Stockholder agrees and consents to the entry of stop transfer instructions
with
the Parent’s transfer agent and registrar against the transfer of the Parent
Shares except in compliance with the foregoing restrictions in
Sections 3(a) and (e) above. The Company Principal Stockholder
understands that the restrictions with respect to the Parent Shares set forth
herein are in addition to any other restrictions upon transfer that may arise
pursuant to any other agreement to which the Company Principal Stockholder
is a
party or under applicable securities laws.
4. Representations
and Warranties of Stockholder. The
Company Principal Stockholder represents and warrants to Parent
as follows:
(a) As
of the
date of this Agreement and at all times through the Expiration
Date:
(i) He
is the
Beneficial Owner (free and clear of any encumbrances or restrictions) of the
outstanding shares of Company Capital Stock set forth under the heading “Shares
of Company Capital Stock Beneficially Owned”, on the signature page
hereof;
(ii) He
is the
Beneficial Owner (free and clear of any encumbrances or restrictions) of the
outstanding Company Options and Other Rights set forth under the heading
“Company Options and Other Rights Beneficially Owned” on the signature page
hereof; and
(iii) He
does
not directly or indirectly Beneficially Own any shares of Company Capital Stock
or Company Options or Other Rights or other securities of the Company, other
than the shares of Company Capital Stock and Company Options and Other Rights
set forth on the signature page hereof.
(b) The
Company Principal Stockholder has the legal capacity, power and authority to
enter into and perform all of its obligations under this Agreement. This
Agreement has been duly executed and delivered by the Company Principal
Stockholder, and upon its execution and delivery by Parent, will constitute
a
legal, valid and binding obligation of the Company Principal Stockholder,
enforceable against him in accordance with its terms, except as enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting or relating to creditors rights generally, and the
availability of injunctive relief and other equitable remedies.
(c) The
execution, delivery and performance by the Company Principal Stockholder of
this
Agreement will not (i) conflict with, require a consent, waiver or approval
under, or result in a breach of or default under, any of the terms of any
contract, commitment or other obligation (written or oral) to which such Company
Principal Stockholder is a party or by which any of his assets may be
bound.
(d) No
filing
with, and no permit, authorization, consent or approval of, any state or federal
public body or authority is necessary for the execution of this Agreement by
the
Company Principal Stockholder and the consummation by Company Principal
Stockholder of the transactions contemplated hereby.
5. Covenants
of Stockholder. The
Company Principal Stockholder covenants and agrees for the
benefit of Parent that, until the Expiration Date, he shall not:
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(a) sell,
transfer, pledge, hypothecate, encumber, assign, tender or otherwise dispose
of,
or enter into any contract, option or other arrangement or understanding with
respect to the sale, transfer, pledge, hypothecation, encumbrance, assignment,
tender or other disposition of, (i) any Subject Shares or any interest
therein, or (ii) any Company Options and Other Rights or any interest
therein; provided,
however,
that
Stockholder may convert, exercise or exchange Company Options and Other Rights
into or for shares of Company Capital Stock in which event such shares of
Capital Stock shall become and be deemed Subject Shares subject to all the
terms
and conditions of this Agreement;
(b) acquire
any shares of the stock of Parent except pursuant to existing Company Options
and Other Rights or unless such shares shall become subject to the terms of
this
Agreement;
(c) grant
any
powers of attorney or proxies or consents in respect of any of the Subject
Shares, deposit any of such Subject Shares into a voting trust, or enter into
a
voting agreement with respect to any of such Subject Shares; or
(d) take
any
other action with respect to the Subject Shares that would in any way restrict,
limit or interfere with the performance of Company Principal Stockholder’s
obligations hereunder or the transactions contemplated hereby and the Merger
Agreement.
6. Adjustments;
Additional Shares. In
the event (a) of any stock dividend, stock split, merger,
recapitalization, reclassification, combination, exchange of shares or the
like
of the capital stock of the Company on, of or affecting the Subject Shares,
or
(b) that Stockholder shall become the Beneficial Owner of any additional
shares of Company Capital Stock or other securities entitling the holder thereof
to vote or give consent with respect to the matters set forth in
Section 2(a), then the terms of this Agreement shall apply to the shares of
Company Capital Stock or other instruments or documents held by Stockholder
immediately following the effectiveness of the events described in
clause (a) or Stockholder becoming the Beneficial Owner thereof as
described in clause (b), as though, in either case, they were Subject
Shares hereunder. The foregoing shall apply (mutatis
mutandis)
to the
Subject Shares and Section 3 of this Agreement.
7. Amendments
and Waivers. Any
provision of this Agreement may be amended or waived if, and
only if, such amendment or waiver is in writing and is signed, in the case
of an
amendment, by each party to this Agreement, or in the case of a waiver, by
the
party against whom the waiver is to be effective. No failure or delay by any
party in exercising any right or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other
or
further exercise thereof or the exercise of any other right, power or privilege.
To the maximum extent permitted by law, (a) no waiver that may be given by
a party shall be applicable except in the specific instance for which it was
given and (b) no notice to or demand on one party shall be deemed to be a
waiver of any obligation of such party or the right of the party giving such
notice or demand to take further action without notice or demand.
8. Assignment. This
Agreement may not be assigned by any party hereto without the
prior written consent of the other parties. Subject to the foregoing, all of
the
terms and provisions of this Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective executors, heirs, personal
representatives, successors and assigns.
9. Entire
Agreement. This
Agreement and the documents, instruments and other agreements
specifically referred to herein or delivered pursuant hereto, set forth the
entire understanding of the parties with respect to the subject matter hereof.
Any and all previous agreements and understandings between or among the parties
regarding the subject matter hereof, whether written or oral, are superseded
by
this Agreement.
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10. Notices. Any
notice, request, demand, waiver, consent, approval or other
communication which is required or permitted hereunder shall be in writing
and
shall be deemed given (a) on the date established by the sender as having
been delivered personally; (b) on the date delivered by a private courier
as established by the sender by evidence obtained from the courier; (c) on
the date sent by facsimile, with confirmation of transmission, if sent during
normal business hours of the recipient, if not, then on the next business day;
or (d) on the fifth day after the date mailed, by certified or registered
mail, return receipt requested, postage prepaid. Such communications, to be
valid, must be addressed as follows:
If
to
Parent, to:
000
Xxxx
00xx
Xxxxxx,
Xxxxx 0000
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxx X. Xxxxxxxx
Facsimile:
000-000-0000
With
a
required copy to:
X.X.
Xxxxxxxx, PLLC
000
Xxxx
00xx
Xxxxxx,
Xxxxx 0000
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxx X. Xxxxxxxx
Facsimile:
000-000-0000
If
to any
of the Company Principal Stockholder:
SecurLinx
Holding Corp.
000
Xxxx
Xxxxxx, Xxxxx 000
Xxxxxxxxxx,
XX 00000
Att:
Xxxxx X. Xxxxx, CEO
Fax:
000-000-0000
With
a
required copy to:
Steptoe
& Xxxxxxx, PLLC
Xxxxx
Xxxxx, Xxxxxx Xxxxx
X.X.
Xxx
0000
Xxxxxxxxxxx,
XX 00000-0000
Att:
Xxxx
Xxxxxx, Esq.
Fax:
000-000-0000
or
to
such other address or to the attention of such person or persons as the
recipient party has specified by prior written notice to the sending party
(or
in the case of counsel, to such other readily ascertainable business address
as
such counsel may hereafter maintain). If more than one method for sending notice
as set forth above is used, the earliest notice date established as set forth
above shall control.
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11.
Captions.
All
captions contained in this Agreement are for convenience of
reference only, do not form a part of this Agreement and shall not affect in
any
way the meaning or interpretation of this Agreement.
12.
Severability;
Enforcement. Any
provision of this Agreement which is invalid or unenforceable in
any jurisdiction shall be ineffective to the extent of such invalidity or
unenforceability without invalidating or rendering unenforceable the remaining
provisions hereof, and any such invalidity or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
13.
Specific
Performance. The
Company Principal Stockholder acknowledges that the agreements
contained in this Agreement are an integral part of the transactions
contemplated by the Merger Agreement, and that, without these agreements, Parent
would not enter into the Merger Agreement, and acknowledges that damages would
be an inadequate remedy for any breach by the Company Principal Stockholder
of
the provisions of this Agreement. Accordingly, the Company Principal Stockholder
agrees that his obligations hereunder shall be specifically enforceable and
he
shall not take any action to impede the other from seeking to enforce such
right
of specific performance.
14.
Consent
to Jurisdiction. Each
party irrevocably submits to the exclusive jurisdiction of
(a) New York County, New York, and (b) the United States District
Court for the Southern District of New York, for the purposes of any action,
suit or proceeding arising out of this Agreement or any transaction contemplated
hereby. Each party agrees to commence any such action, suit or proceeding either
in the United States District Court for the Southern District of New York or
if
such action, suit or proceeding may not be brought in such court for
jurisdictional reasons, in the Supreme Court sitting in New York County
(including its Appellate Division). Each party further agrees that service
of
any process, summons, notice or document by U.S. registered mail to such
party’s respective address set forth above shall be effective service of process
for any action, suit or proceeding in New York with respect to any matters
to
which it has submitted to jurisdiction in this Section 15. Each party
irrevocably and unconditionally waives any objection to the laying of venue
of
any action, suit or proceeding arising out of this Agreement or the transactions
contemplated hereby in (i) the United States District Court for the
Southern District of New York, or (ii) the Supreme Court sitting in New
York County (including its Appellate Division), and hereby further irrevocably
and unconditionally waives and agrees not to plead or claim in any such court
that any such action, suit or proceeding brought in any such court has been
brought in an inconvenient forum. EACH PARTY HEREBY IRREVOCABLY WAIVES ALL
RIGHT
TO TRIAL BY JURY IN ANY ACTION (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF SUCH PARTY IN
THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.
15.
Governing
Law. This
Agreement shall be governed by and interpreted and enforced in
accordance with the laws of the State of New York, without giving effect to
any
choice of law or conflict of laws rules or provisions (whether of the State
of
New York or any other jurisdiction) that would cause the application of the
laws
of any jurisdiction other than the State of New York, except to the extent
that
the voting of the Subject Shares is subject to the corporate law of the State
of
Delaware.
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IN
WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto
all
as of the day and year first above written.
By:
__________________________________
Name:
Xxxxxxx X. Xxxxxxxx
Title:
President
and Chief Executive Officer
COMPANY
PRINCIPAL STOCKHOLDER:
________________________________________
Xxxxx X. Xxxxx
Shares
of
Company Common Stock Beneficially Owned: __________________
Company
Options and Other Rights Beneficially Owned: __________________
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