Voting Agreement and Irrevocable Proxy
Exhibit
10.1
This
Voting
Agreement and Irrevocable Proxy (this
“Agreement”),
dated
as of April
11,
2007, is
entered into
by and
among
Xxxxx
Systems Group, Inc.,
a
Delaware corporation (the “Parent”),
ASG
M&A, Inc.,
a
Delaware corporation and wholly-owned subsidiary of the Parent (the
“Purchaser”),
Mobius
Management Systems, Inc.,
a
Delaware corporation (the “Company”),
and
each of the individuals set
forth
in Schedule I to this Agreement (referred to herein individually as a
“Stockholder”,
and
collectively as the “Stockholders”).
RECITALS
WHEREAS,
the
Stockholders are, as of the date hereof, the record and beneficial owners (as
defined by Rule 13d-3 promulgated under the Securities Exchange Act of 1934,
as
amended (“Rule 13d-3”)) of
the
number of shares of common stock, par value $0.0001 per share, of the Company
(“Common Stock”) set forth opposite the name
of
each
such
Stockholder
on
Schedule I hereto;
WHEREAS,
the
Parent, the Purchaser and the Company,
contemporaneously herewith, are
entering into
an
Agreement and Plan of Merger, dated as of the date hereof (the “Merger
Agreement”),
whereby the Purchaser will merge with and into the Company with the Company
continuing as the surviving corporation (the “Merger”)
upon
the terms and subject to the conditions set forth in the Merger Agreement
(capitalized terms used in this Agreement which have not been otherwise defined
herein shall have the meanings
ascribed
to them in the Merger Agreement);
WHEREAS,
as a
condition to the willingness of the Parent and Purchaser to enter into the
Merger Agreement and as an inducement and in consideration therefor, the
Stockholders have agreed to enter into this Agreement;
WHEREAS,
pursuant to the terms of this Agreement the Stockholders have agreed, among
other things, to furnish and grant to the Parent their respective irrevocable
proxies to vote the Common Shares; and
WHEREAS,
the
Parent is relying on the irrevocable proxies in incurring the expense in
proceeding with, and in undertaking all actions necessary,
for the
consummation of, the Merger;.
NOW,
THEREFORE,
in
consideration of the foregoing and the mutual covenants and agreements set
forth
herein and in the Merger Agreement, and intending to be legally bound hereby,
the parties hereto agree as follows:
Section
1. Representations
and Warranties of the Stockholders.
Each
Stockholder hereby represents and warrants to the Parent and the Purchaser,
severally, as follows:
(a) As
of the
date hereof, each Stockholder is the record and beneficial owner (as defined
by
Rule 13d-3, referred to herein as a “beneficial owner”) of and has good and
marketable title to: (a) that number of shares of Common Stock and Restricted
Shares
with any
voting rights (subject
to any vesting, repurchase or other lapse restrictions with respect to such
Restricted Shares) set
forth
opposite such Stockholder’s name on Schedule I hereto (said Common Stock and
Restricted
Shares,
together
with any voting shares of Company stock acquired by such Stockholder after
the
date of this Agreement, whether upon the exercise of Options or warrants to
purchase shares of Common Stock or otherwise, all as may be adjusted from time
to time pursuant to Section 5 hereof
(the
“Shares”),
and
(b) Options and warrants to purchase that number of shares of Common
Stock
set
forth opposite such Stockholder’s name on Schedule I hereto. Schedule I lists
separately for each Stockholder all of the Shares, Options and
warrants
beneficially owned (as defined by Rule 13d-3, referred to herein as
“beneficially owned” or as “beneficial ownership”) by such
Stockholder. Other than the Shares set forth opposite such Stockholder’s name on
Schedule I hereto, such Stockholder does not beneficially own or
hold
any
other
Shares, Options, warrants, or securities exercisable, convertible, or
exchangeable into Common Stock or Company voting stock.
(b) Each
Stockholder who is a natural person has the legal capacity to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
In the case of any Stockholder that is a limited
partnership, such
Stockholder is an entity duly organized and validly existing under the
Laws
of the
jurisdiction in which it is
constituted, and each such Stockholder has all requisite power and authority
to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby and has taken all necessary corporate action to authorize
the execution, delivery and performance of this Agreement. Each Stockholder
has
the full voting power, power of disposition, and power to agree to all of the
matters regarding such Stockholder set forth in this Agreement, in each case
with respect to all Shares beneficially owned by such Stockholder and as
identified in Schedule I hereof.
(c) This
Agreement has been validly executed and delivered by each Stockholder and
constitutes the legal, valid and binding obligation of such Stockholder,
enforceable against such Stockholder in accordance with its terms (subject
to the Bankruptcy and Equity Exception).
(d) Neither
the execution and delivery of this Agreement nor the performance
of any of the obligations of
such
Stockholder hereunder
(i)
conflicts with or violate the Certificate of Incorporation or the Bylaws of
the
Company or any of the Company Subsidiaries, (ii) conflicts with or violates
any
Law, order, judgment, or decree applicable to such Stockholder, or (iii) results
in a violation of, or a default under (with or without notice of lapse of time,
or both), or conflicts with, constitutes or results in a breach of any term,
condition, or provision of, or result in the creation of a Lien (defined below)
on the Shares pursuant to, any contract, trust, loan or credit agreement, lease,
Permit, commitment, agreement, understanding, instrument, obligation,
arrangement or restriction of any kind to which such Stockholder is a party
or
by which such Stockholder, its assets, the Shares, or the Options or warrants
are bound. The execution and delivery of this Agreement and the consummation
by
such Stockholder of the transactions contemplated hereby does not require any
filing, permit, consent, approval, or notice to or from any Governmental Entity
or other Person (except for any Regulatory Filings).
(e) The
Shares owned by each Stockholder are now,
and
at all times during the term hereof will be, held
by
such Stockholder, or by a nominee or custodian for the benefit of such
Stockholder, free and clear of all liens, rights of first refusal, claims,
security interests, proxies, voting trusts or agreements, options, rights,
understandings or arrangements or any other encumbrances whatsoever on title,
transfer, or exercise of any rights of a stockholder in respect of such Shares
(collectively, “Liens”),
except for any
Liens
arising hereunder. The Stockholder has not appointed or granted any proxies,
which appointments or grants are still effective, with respect to the Shares
the
Option or the warrants.
(f) Each
Stockholder whose Shares, Options or warrants are subject to community property
interests under the Laws
of any
relevant jurisdiction has agreed to have executed and delivered to the Parent,
to the extent necessary, such consents, waivers, and approvals necessary for
the
execution of this Agreement and the consummation of the transactions
contemplated hereby regarding such Stockholder.
(g) Each
Stockholder (i) is a sophisticated investor with respect to the Shares and
has
independently and without reliance upon the Parent or the Purchaser and based
on
such information as the Stockholder has deemed appropriate, made its own
analysis and decision to enter into this Agreement, (ii)
2
acknowledges
that neither the Parent nor the Purchaser has made any representations or
warranty, whether expressed or implied, of any kind or character, other than
as
expressly set forth in this Agreement, (iii) understands and acknowledges that
the Parent and the Purchaser are entering into the Merger Agreement in reliance
upon each such Stockholder’s execution and delivery of this Agreement, and (iv)
acknowledges that the agreements contained herein with respect to the Shares
are
irrevocable, subject
to Section 7 hereof, and
that
such Stockholder shall have no recourse to the Shares or the Parent or Purchaser
with respect to the Shares.
Section
2. Representations
and Warranties of the Parent and the Purchaser.
Each of
the Parent and the Purchaser hereby, jointly and severally, represents and
warrants to the Stockholders as follows:
(a) Each
of
the Parent and the Purchaser is a corporation organized and validly existing
under the Laws
of the
jurisdiction of its respective incorporation and has all requisite corporate
power and authority and all necessary governmental approvals to own, lease
and
operate its properties and to carry on its business as is now being conducted,
except where the failure to be so organized and existing or to have such power,
authority, and governmental approvals would not, individually or in the
aggregate, impair in any material respect the ability of each of the Parent
and
the Purchaser, as the case may be, to perform its obligations under this
Agreement.
(b) Each
of
the Parent and the Purchaser has all the requisite corporate power and authority
to execute and deliver this Agreement and to consummate the transactions
contemplated by this Agreement, and to perform its obligations under this
Agreement. The execution, delivery and performance by the Parent and the
Purchaser of this Agreement and the consummation of the transactions
contemplated hereunder have been duly authorized by all necessary corporate
action in respect thereof on the part of each of the Parent and the Purchaser,
and by the Parent as the sole stockholder of the Purchaser, and no other
corporate action is required on the part of the Parent or the Purchaser to
authorize the execution and delivery by the Parent and the Purchaser of this
Agreement and the consummation of the transactions contemplated thereby. This
Agreement has been duly executed and delivered by the Parent and the Purchaser
and, assuming valid authorization, execution and delivery hereof by the
Stockholders, is the valid and binding obligation of each of the Parent and
the
Purchaser enforceable against each of them in accordance with its terms
(subject
to the Bankruptcy and Equity Exception).
Section
3. Appointment
of Proxy.
(a) Each
Stockholder agrees that, during the time this Agreement is in effect, at any
meeting of the stockholders of the Company (a “Company
Stockholders’ Meeting”),
called for any of the purposes contemplated by clauses (ii) and (iii) of this
Section 3(a), however called, and at every adjournment or postponement thereof,
or in any other circumstances upon which a vote, consent, or other approval
(including by written consent) is sought, such Stockholder shall (i) when a
meeting is held, appear at such meeting or otherwise cause such Stockholder’s
Shares to be counted as present thereat for purposes of establishing a quorum,
(ii) vote, or execute consents in respect of such Stockholder’s Shares, or cause
such Stockholder’s Shares to be voted, or consents to be executed in respect
thereof, in favor of the adoption
of the
Merger Agreement (including any revised or amended Merger Agreement approved
by
the board of directors of the Company;
provided that such revised or amended Merger Agreement is not revised or amended
in any manner which adversely affects the Stockholder in any material manner
including, for the avoidance of doubt, any decrease in the Merger Consideration
or extension of the Outside Termination Date to a date after November 30,
2007)
and any
action required in furtherance thereof, and (iii) vote, or execute consents
in
respect of such Stockholder’s Shares to be voted, or consents to be executed in
respect thereof, against (A) any agreement or transaction relating to an
Acquisition Proposal or transaction or occurrence that if proposed and offered
to the Company or its stockholders (or
3
any
of
them) would constitute an Acquisition Proposal (other than as proposed by the
Parent, the Purchaser, or any of their Subsidiaries or Affiliates) or (B) any
extraordinary corporate transaction (other than the Merger), or any amendment
of
the Company’s Certificate of Incorporation or Bylaws or other proposal, action
or transaction involving the Company or any of the Company Subsidiaries or
any
of its stockholders, which amendment or other proposal, action or transaction
would
prevent
or materially impede or delay the consummation of the Merger or the transactions
contemplated by the Merger Agreement or the consummation of the transactions
contemplated by this Agreement, or to deprive Parent or Purchaser of any
material portion of the benefits anticipated by Parent and Purchaser to be
received from the consummation of the Merger or the transactions contemplated
by
the Merger Agreement or the transactions contemplated by this Agreement, or
to
change in any manner the voting rights of the Shares presented to the
Stockholders of the Company (regardless of any recommendation of the board
of
directors of the Company) or in respect of which the vote or consent of the
Stockholder is requested or sought.
(b) As
security for the Stockholders’ obligations under Section 3(a), each of the
Stockholders hereby irrevocably (subject
to Section 7 hereof) constitutes
and appoints Parent, the President of the Parent and the Secretary of the
Parent, in their respective capacities as officers of the Parent, or any other
designees of the Parent, each of them individually, as such Stockholder’s proxy
and attorney-in-fact, with full power of substitution and resubstitution, to
cause the Stockholder’s Shares to be counted as present at any such Company
Stockholders’ Meetings and to vote such Stockholder’s Shares at any Company
Stockholders’ Meeting, however called, and to execute consents in respect of
such Stockholder’s Shares as and to the extent provided in Section 3(a)(i),
(ii), and (iii) hereof. The Stockholders acknowledge that Parent is relying
on
this Agreement in incurring the expense in undertaking the actions necessary
for
the consummation of the Merger and that the performance of this Agreement is
intended to benefit the Parent. ACCORDINGLY, THIS PROXY AND POWER OF ATTORNEY
IS
IRREVOCABLE (EXCEPT
AS SET FORTH IN SECTION 7 HEREOF) AND
COUPLED WITH AN INTEREST.
(c) Each
Stockholder represents that any proxies heretofore given in respect of the
Shares, if any, are revocable, and hereby revokes all other proxies and powers
of attorney with respect to such Stockholder’s Shares that such Stockholder may
have heretofore appointed or granted, and no subsequent proxy or power of
attorney shall be granted.
(d) Each
Stockholder hereby affirms that the irrevocable proxy set forth in this Section
3 is given in connection with the execution of the Merger Agreement and that
such irrevocable proxy is given to secure the performance of the duties of
such
Stockholder under this Agreement. Such Stockholder hereby further affirms that
the irrevocable proxy is coupled with an interest and, except as set forth
in
this Section 3 or in Section 7, is intended to be irrevocable under applicable
Delaware Law. If for any reason the proxy granted herein is not irrevocable,
then such Stockholder agrees to vote his or its Shares in accordance with
Section 3(a) above as instructed by Parent in writing.
(e) The
parties acknowledge and agree that neither Parent, nor Parent’s successors,
assigns, subsidiaries, divisions, employees, officers, directors, stockholders,
agents and affiliates, shall owe any duty to, whether in Law or otherwise,
or
incur any liability of any kind whatsoever, including without limitation, with
respect to any and all claims, losses, demands, causes of action, costs,
expenses (including reasonable attorneys’ fees) and compensation of any kind or
nature whatsoever to the Stockholder in connection with, as a result of or
otherwise relating to any vote (or refrain from voting) by Parent of the Shares
subject to the irrevocable proxy hereby granted to Parent at any annual,
extraordinary or other meeting or action or the execution of any consent of
the
stockholders of the Company, in each case pursuant to the terms of this
Agreement. The parties acknowledge that, pursuant to the authority
4
hereby
granted under the irrevocable proxy, Parent may vote the Shares pursuant to
Section 3(b) in furtherance of its own interests, and Parent is not acting
as a
fiduciary for the Stockholder.
(f) Except
pursuant to Section 7 of this Agreement, this irrevocable proxy shall not be
terminated by any act of the Stockholder or by operation of Law, whether by
the
death or incapacity of the Stockholder or by the occurrence of any other event
or events (including, without limiting the foregoing, the termination of any
trust or estate for which the Stockholder is acting as a fiduciary or
fiduciaries or the dissolution or liquidation of any corporation or
partnership). If after the execution hereof the Stockholder should die or become
incapacitated, or if any trust or estate should be terminated, or if any
corporation or partnership should be dissolved or liquidated, or if any other
such event or events shall occur before the Termination Date (as defined
herein), certificates representing the Shares shall be delivered by or on behalf
of the Stockholder in accordance with the terms and conditions of the Merger
Agreement and this Agreement, and actions taken by the Parent hereunder shall
be
as valid as if such death, incapacity, termination, dissolution, liquidation
or
other event or events had not occurred, regardless of whether or not the Parent
has received any notice of such death, incapacity, termination, dissolution,
liquidation or other event.
(g) The
vote
of the Parent pursuant to Section 3(b) of this Agreement shall control in any
conflict between its vote of the Shares and a vote by the Stockholders of the
Shares, and the Company agrees to recognize the vote of the Parent instead
of
the vote of the Stockholders in the event the Stockholders do not vote in the
manner required under Section 3(a) hereof. Without derogating from the
generality of the foregoing, each Stockholder represents to each of the Company
and the Parent that such Stockholder hereby waives any rights of revocation
of
the irrevocable proxy granted hereby that such Stockholder may have, if any,
under the Certificate of Incorporation.
.
(h) Each
Stockholder (i) has reviewed the Merger Agreement and is fully aware of the
terms, conditions, and impact of the Merger Agreement and the basis of the
recommendation of the Board of Directors to approve the Merger Agreement and
(ii) together with their counsel, if any, fully understands the Merger
Consideration payable in connection with the Merger and has determined that
the
Merger Consideration is adequate and fair to such Stockholder.
Section
4. Covenants.
Each
Stockholder covenants and agrees as follows:
(a) No
Transfer of Shares, Options or Warrants.
Prior to
the termination of this Agreement, such Stockholder shall not: (i) offer for
sale, sell, transfer, assign, gift-over, encumber, pledge, hypothecate, cause
to
be redeemed or purchased, or otherwise dispose of, directly or indirectly,
or
consent to any of the foregoing (“Transfer”),
the
record ownership or beneficial ownership (or both) of any of the Shares, the
Options, the warrants, or any right or interest therein, or create or permit
to
exist any Lien affecting the Shares; (ii) enter into any contract, option or
other agreement, arrangement or understanding with respect to any Transfer;
(iii) enter into any tender, voting, or other such agreement, or grant any
proxy, power-of-attorney or other authorization or consent with respect to
any
of the Shares or the warrants; (iv) deposit any of the Shares into a voting
trust, or enter into a voting agreement or arrangement with respect to any
of
the Shares; or (v) take any other action that would in any way restrict, limit
or interfere with the performance of such Stockholder’s obligations hereunder or
the transactions contemplated hereby or make any representation or warranty
of
such Stockholder untrue or incorrect.
(b) Additional
Shares.
Each
Stockholder shall as promptly as practicable notify the Parent of the number
of
any additional Shares acquired by such Stockholder, if any, after the date
hereof. Any such additional Shares shall be subject to the terms of this
Agreement as through owned by the Stockholder on the date hereof.
5
(c)
No Solicitation.
Each
Stockholder agrees that it shall not, nor will such Stockholder permit any
of
its Representatives to, directly or indirectly, in such Stockholder’s capacity
as a stockholder of the Company:
(i) initiate,
solicit or knowingly encourage, or take any action to facilitate the making
of,
any offer or proposal which constitutes or which would be reasonably likely
to
lead to any third-party Acquisition Proposal; or
(ii) enter
into any agreement with
respect to any Acquisition Proposal; or
(iii)
in the
event of an unsolicited Acquisition Proposal, engage in negotiations or
discussions
with, or
provide any information or data to, any Person (other than the Parent or any
of
its Affiliates or representatives) relating to an Acquisition
Proposal.
(d) No
Inconsistent Agreements.
Except
as contemplated by this Agreement and the Merger Agreement, the Stockholders
will not enter into any voting or other agreement or grant any power of attorney
with respect to the Shares, or take any action that is
inconsistent with this Agreement, or that would
or would
reasonably be expected to,
in any
manner, compete with, interfere with, impede, frustrate, prevent, burden, delay,
or nullify the Merger, the Merger Agreement, or any of the transactions
contemplated by the Merger Agreement.
Section
5. Certain Events.
In the
event of any change in the Shares by reason of a share 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 Shares or the acquisition of additional
Shares or other securities or rights of the Company by any Stockholder (whether
through the exercise of any Options, warrants or other rights to purchase Shares
or otherwise): (a) the number of Shares owned by such Stockholder shall be
adjusted appropriately, and (b) this Agreement and the obligations hereunder
shall attach to any additional Shares or other securities or rights of the
Company issued to or acquired by each of the Stockholders.
Section
6. Further Assurances.
Each
Stockholder shall, upon request of Parent or Purchaser, execute and deliver
any
additional documents and take such further actions as may reasonably be deemed
by Parent or Purchaser to be necessary or desirable to carry out the provisions
hereof and to vest in Parent the power to vote the Shares as contemplated by
Section 3 hereof.
Section
7. Termination.
This
Agreement, and all rights and obligations of the parties hereunder, shall
terminate immediately upon the earlier of: (a) Effective Time, or (b)
termination of the Merger Agreement in accordance with the terms thereof (the
“Termination
Date”);
provided,
however,
that
Sections 8, 9, and 10(d), of this Agreement shall survive any termination of
this Agreement.
Section
8. Expenses.
All
fees, costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
fees,
costs and expenses, except that the Company shall pay the fees, costs and
expenses of the Stockholders incurred in connection with this Agreement
and
the
transactions contemplated hereby.
Section
9. Public Announcements.
Each of
the Stockholders agrees that it will not issue any press release or otherwise
make any public statement with respect to this Agreement or the transactions
contemplated hereby without the prior consent of the Parent and Purchaser,
except that such disclosure may be made without obtaining such prior consent
if
(a) the disclosure is required by applicable
Law
or is
required by any regulatory authority, trading market or inter-dealer quotation
system on which the Shares
6
trade
and
(b) the party making such disclosure has first used its commercially reasonable
efforts to consult with the other parties about the form and substance of such
disclosure.
Section
10. Miscellaneous.
(a)
Notices .
All
notices and other communications hereunder shall be in writing and shall be
deemed given if delivered personally, telecopied (which is confirmed) or sent
by
a nationally recognized “overnight” courier service, such as Federal Express
(providing proof of delivery), to the parties at the following addresses (or
at
such other address for a party as shall be specified by like
notice):
If
to
Xxxxxxxx Xxxxx, addressed to such Stockholder:
c/o
Mobius Management Systems, Inc.
000
Xxx
Xxxx Xxxx,
Xxx,
Xxx
Xxxx 00000
Facsimile
No.: 000-000-0000
If
to
Xxx
Xxxxxxxx,
addressed to such Stockholder:
At
the
address set forth in Schedule I for such Stockholder.
with
a
copy to:
Xxxxxx
Xxxxx Xxxxxxxx & Xxxxxxx LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx X. Xxxxxxxx
Facsimile
No.: (000) 000-0000
If
to
Parent or Purchaser, to:
Xxxxx
Systems Group, Inc.
0000
Xxxxx Xxxxxx Xxxxx
Xxxxxx,
Xxxxxxx 00000
Attention:
General Counsel
Facsimile
No.: (000) 000-0000
with
a
copy to:
Xxxxxxx
Xxxxxx, P.A.
Corporate
Center Three at International Plaza
0000
X.
Xxx Xxxxx Xxxxxxxxx
Xxxxx,
Xxxxxxx 00000-0000
Telecopy
Number: (000) 000-0000
Attention:
Xxxxxxx X. Xxxxxx, Esq.
(b)
Captions.
The
captions contained in this Agreement are for reference purposes only and are
not
part of this Agreement.
(c)
Entire
Agreement.
This
Agreement (and any other documents and instruments referred to herein and
therein) constitute the entire agreement among the parties with respect to
the
7
subject
matter hereof and thereof and supersedes all other prior agreements and
understandings, both written and oral, among the parties or any of them with
respect to the subject matter hereof and thereof.
(d)
Governing
Law; Venue.
This
Agreement shall in all respects be governed by and construed in accordance
with
the Laws of the State of Delaware. Any suit, action or proceeding seeking to
enforce any provision of, or based on any matter arising out of or in connection
with, this Agreement or the Transactions may be brought against any of the
parties in any federal court located in the State of Delaware or any Delaware
state court, and each of the parties hereto hereby consents to the exclusive
jurisdiction of such courts (and of the appropriate appellate courts therefrom)
in any such suit, action or proceeding and waives any objection to venue laid
therein. Process in any such suit, action or proceeding may be served on any
party anywhere in the world, whether within or without the State of Delaware.
Without limiting the generality of the foregoing, each party hereto agrees
that
service of process upon such party at the address referred to in this Agreement,
together with notice of such service to such party, shall be deemed effective
service of process upon such party.
(e)
Assignment.
Neither
this Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by any of the parties hereto (whether by operation of law or
otherwise) without the prior written consent of the other parties except that
Parent and Purchaser may assign, in their sole discretion and without the
consent of any other party, any or all of their rights, interests and
obligations hereunder to each other or to one or more direct or indirect
wholly-owned Subsidiaries
of Parent, in any case so long as the Parent remains liable for all of its
obligations hereunder, including in connection with a breach of any of the terms
hereof.
(f)
Severability
of Provisions.
If any
term or provision of this Agreement is invalid, illegal or incapable of being
enforced by rule of Law or public policy, 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 by this Agreement
is not affected in any manner adverse to any party. Upon such determination
that
any term or other provision is invalid, illegal or incapable of being enforced,
the parties hereto shall negotiate in good faith to modify this Agreement so
as
to effect the original intent of the parties as closely as possible in an
acceptable manner to the end that the transactions are fulfilled to the extent
possible.
(g)
Specific
Performance.
Each of
the Stockholders acknowledge that irreparable damage to Parent would occur
and
money damages would be an inadequate remedy for any breach of this Agreement
by
such Stockholder and that the obligations of each Stockholder hereto shall
be
enforceable by the Parent or the Purchaser through injunctive or other equitable
relief.
(h)
Amendment.
No
amendment, modification or waiver in respect of this Agreement shall be
effective against any party unless it shall be in writing and signed by such
party.
(i)
Binding
Nature.
This
Agreement is binding upon and is solely for the benefit of the parties hereto
and their respective successors, legal representatives and permitted
assigns.
(j)
Survival.
Except
as otherwise specifically provided in this Agreement, each representation,
warranty or covenant of a party contained in this Agreement shall remain in
full
force and effect notwithstanding any investigation or notice to the contrary
or
any waiver by any other party or beneficiary of a related condition precedent
to
the performance by the other party or beneficiary of an obligation under this
Agreement.
(k)
Fiduciary
Duties.
Nothing
herein shall derogate from the fiduciary
duties
of
those
Stockholders who also are directors and/or
officers of the Company
and,
notwithstanding anything
8
contained
in this Agreement to the contrary, no action or inaction by any Stockholder
in
his role as an officer
and/or a director of the Company shall constitute a breach or violation of
any
of the terms of this Agreement.
(l)
Obligations
of Stockholders are Several, Not Joint.
The
obligations, duties, and liabilities of each Stockholder pursuant to this
Agreement are several and are not jointm
(m)
Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to constitute an original, but all of which together shall constitute
one
and the same instrument.
[Signatures
on Following Pages]
9
IN
WITNESS WHEREOF,
the
parties have executed this Agreement on the date first above
written.
MOBIUS
MANAGEMENT SYSTEMS, INC.
By:________________________________
Xxxxxxxx
Xxxxx,
President
and Chief Executive Officer
XXXXX
SYSTEMS GROUP, INC.,
By:_______________________________
Xxxxxx
X.
Xxxxx
President
and Chief Executive Officer
ASG
M&A, INC.,
By:______________________________
Xxxxxx
X.
Xxxxx
President
and Chief Executive Officer
STOCKHOLDERS:
_________________________________
Xxxxxxxx
Xxxxx,
in his
own capacity and
as
General Partner of XXXXXX, LP
_________________________________
Xxxxxx
X.
Xxxxxxxx
Signature
Page to Voting Agreement and Irrevocable Proxy
10
