AMENDED & RESTATED VOTING AGREEMENT
AMENDED
& RESTATED VOTING AGREEMENT
This
Amended & Restated Voting Agreement (this “Agreement”) is made as of March
27, 2009 by and among GCA I Acquisition Corp., a Delaware corporation (“Parent”)
and Xxxxxx X. Xxxxxx, a principal stockholder of Xxxxx Energy Systems, Inc., a
Delaware corporation (the “Company”)(the “Company Principal
Stockholder”).
WHEREAS, Parent and the Company
Principal Stockholder entered into a certain voting agreement as of May 7, 2008
(the “Original Voting Agreement”), which Original Voting Agreement Parent and
Company Principal Stockholder now wish to amend and restate in its entirety in
the form of this Agreement, which shall for all purposes be deemed to supercede
the Original Voting Agreement;
WHEREAS,
concurrently with the execution and delivery of this Agreement, Parent, Xxxxx
Energy Acquisition Corp., a Delaware corporation and wholly-owned subsidiary of
Parent (“Merger Sub”) and the Company are entering into an Amended &
Restated 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. Certain
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.
(b) “Company Capital Stock”
means, jointly, the Company Common Stock and the Company Preferred
Stock.
(c) “Company Common Stock” means
shares of common stock, par value $0.001 per share, of the
Company.
(d) “Company Options and Other
Rights” means options, warrants and other rights to acquire, directly or
indirectly, shares of Company Capital Stock.
(e) “Company Preferred Stock”
means shares of Series A convertible preferred stock, par value $0.001 per
share, of the Company.
(f) “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.
(g) “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.
(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.
(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 as of the record date of such meeting or written
consent:
(i) for
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,
including without limitation the Merger and the amendment to the Company’s
certificate of incorporation relating to the automatic conversion of the Company
Preferred Stock upon consummation of the Merger, 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 transactions contemplated by the Merger
Agreement including without limitation the Merger and the amendment to the
Company’s certificate of incorporation relating to the automatic conversion of
the Company Preferred Stock upon consummation of the Merger): (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 third party 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 Subsection (b) of this
Section 2 of this Agreement.
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(e) The
Company Principal Stockholder hereby waives and agrees not to
exercise or seek 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.
3. Proof of
Vote/Consent.
In the event that approval by the Company stockholders of the Merger, the
Merger Agreement, and the amendment to the Company’s certificate of
incorporation relating to the automatic conversion of the Company Preferred
Stock upon consummation of the Merger is not obtained, then, and in such event,
the Company Principal Stockholder shall promptly provide to Parent evidence in
form reasonably satisfactory to Parent of the fulfillment of his obligations
under this Agreement.
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 Common Stock set forth under the heading
“Shares of Company Common 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 shares of Company Preferred Stock set forth under the heading
“Shares of Company Preferred Stock Beneficially Owned”, on the signature page
hereof;
(iii) 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
(iv) 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.
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5. Covenants of Company
Principal Stockholder. The Company
Principal Stockholder covenants and agrees for the benefit of Parent that, until
the Expiration Date, he shall not:
(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 Company 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 Company Principal 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(b), then the terms of this Agreement shall apply to the shares of
Company Capital Stock or other instruments or documents held by Company
Principal Stockholder immediately following the effectiveness of the events
described in clause (a) or Company Principal Stockholder becoming the
Beneficial Owner thereof as described in clause (b), as though, in either
case, they were Subject Shares hereunder.
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
Company Principal Stockholder:
Xxxxxx X. Xxxxxx
c/o Bixby
Energy Systems, Inc.
0000
000xx Xxxx
XX
Xxxxxx,
XX 00000
Facsimile:
000-000-0000
With a
required copy to:
Xxxxxxxx
& Associates, PA
0000
Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx,
XX 00000
Attn:
Xxxxx Xxxxxxxx, Esq.
Facsimile:
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 14. 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.
[SIGNATURES
ON THE FOLLOWING PAGE]
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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.
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By:
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Name:
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Xxxxxxx
X. Xxxxxxxx
|
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Title:
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President
and Chief Executive
Officer
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COMPANY
PRINCIPAL STOCKHOLDER:
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XXXXXX
X. XXXXXX
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Number of
shares of Company Common Stock Beneficially
Owned: 1,765,002
Number of
shares of Company Preferred Stock Beneficially
Owned: -0-
Number of
Company Options and Other Rights Beneficially
Owned: 1,190,000
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