EXHIBIT 10.52
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made as of December 21, 2001
(the "Effective Date"), by and among Industrial Data Systems Corporation,
a Nevada corporation (the "Company"), Equus II Incorporated, a Delaware
corporation ("Equus"), Alliance 2000, Ltd., a Texas limited partnership
("Alliance"), and the individuals and entities listed on the attached Schedule
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1 (collectively referred to as the "Significant PEI Shareholders"). Equus,
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Alliance, and the Significant PEI Shareholders are current or prospective
holders of the Common Stock, par value $.001 per share (the "Common Stock"),
of the Company and the Series A Preferred Stock, par value $.001 per share
(together with any shares issued or issuable upon conversion of the Series A
Preferred Stock, the "Series A Preferred Stock"), of the Company. Equus,
Alliance, and the Significant PEI Shareholders are referred to herein
individually as a "Voting Party," and collectively, as the "Voting Parties."
RECITALS
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The Company and Petrocon Engineering, Inc., a Texas corporation
("Petrocon"), entered into that certain Agreement and Plan of Merger dated
as of July 31, 2001 (the "Merger Agreement"), which requires that Equus,
Alliance, and the Significant PEI Shareholders enter into this Agreement at the
closing of the transactions contemplated by the Merger Agreement.
AGREEMENT
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NOW, THEREFORE, in consideration of the mutual promises herein
contained, and other consideration, the receipt and adequacy of which hereby
is acknowledged, the parties agree as follows:
ARTICLE 1
ELECTION OF DIRECTORS
1.1 Board of Directors. From and after the date of this Agreement
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and until the provisions of this Article 1 cease to be effective, each of the
Voting Parties shall vote, or cause the vote of, all shares of Common Stock and
other voting securities of the Company over which such Voting Party has voting
control, and will take all other necessary or desirable actions within his,
her or its control (whether in his, her or its capacity as a stockholder,
director or officer of the Company or otherwise) to ensure that the size of
the Board of Directors (the "Board") shall be no more than seven and to
cause the election to the Board of:
(a) Three representatives designated by Alliance until the
earlier of (i) the date that Xxxxxxx X. Xxxxxx and Xxxxx X. Xxxxxx or their
heirs, individually or collectively, no longer serve as or control the general
partner of Alliance; and (ii) the date that Xxxxxxx X. Xxxxxx and Xxxxx X.
Xxxxxx or their heirs, individually or collectively, own less than 51% of the
partnership interests in Alliance, except to the extent they have made transfers
in connection with income, gift and estate tax planning to charitable or other
non-profit organizations, or to family members;
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(b) One representative designated by Equus, until the later of
(i) the date that certain promissory note dated on the Effective Date from
Petrocon payable to the order of Equus in the original principal amount of
$3,000,000 (the "Equus Note") is paid in full; (ii) the date on which Equus owns
less than 1,000,000 shares of Company Common Stock on an as-converted basis;
(c) Two representatives (one of whom shall be Xxxxxxx X.
Xxxxxx) designated by the Shareholder Representative until the date that Equus
no longer has the right to designate a representative pursuant to Section
1.1(b), and thereafter, three representatives (one of whom shall be Xxxxxxx X.
Xxxxxx) designated by the Shareholder Representative; and
(d) One representative designated by agreement among Alliance
(so long as Alliance has the right to designate directors pursuant to Section
1.1(a)) and the holders of a majority of the Common Stock held by the
Shareholder Representative (the "Independent Director").
Each party to this Agreement agrees to vote in favor of the removal and
replacement of any director if requested to do so by the parties entitled to
name such director to the Board of Directors under this Agreement. If any
director designated for election by an Voting Party or Voting Parties pursuant
to the foregoing provisions of this Section 1.1 dies or resigns as director, or
otherwise ceases to be a director for any other reason, then, subject to
Section 1.2, such Voting Party or Voting Parties which designated such
director, shall have the right to designate a director to fill the resulting
vacancy.
1.2 Replacement of Certain Directors. If any Voting Party shall lose
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the right to designate a director, such Voting Party shall cause such director
to immediately resign and the resulting vacancy shall, in the case of the loss
by Equus of a right to designate a director, be filled by the person designated
by the Shareholder Representative, and in the case of the loss by any other
Voting Party of a right to designate a director, by a majority of the remaining
directors. In each case, the replacement director shall serve pending the next
annual meeting of shareholders of the Company, and thereafter as provided by
this Agreement and the vote of such shareholders.
1.3 Removal of Certain Board Representatives and Officers of the
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Company. As more fully set forth in their respective employment agreements,
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Xxxxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxx shall not be removed as officers of the
Company absent their death, disability, dismissal for cause, resignation, or
the affirmative vote of at least five members of the Board.
1.4 Vacancies. If any representative designated as provided in Section
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1.1 for any reason ceases to serve as a member of the Board during his or her
term of office, the parties hereto shall cause the resulting vacancy to be
filled by a representative designated as provided in Section 1.1 by the
respective person or persons who designated the vacating representative. Each
of the Voting Parties shall give a proxy to vote its securities in accordance
with this Agreement or shall attend, and vote its voting securities of the
Company in accordance with this Agreement at, each special meeting of the
stockholders of the Company involving the election of directors of the Company.
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1.5 Legends on Stock Certificates. The certificates representing
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shares held by the Voting Parties shall bear the following legend (together
with any other legends required by separate agreement and applicable laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
VOTING LIMITATIONS AND RESTRICTIONS SET FORTH IN A VOTING AGREEMENT
AMONG THE COMPANY, THE HOLDER HEREOF AND CERTAIN OTHER STOCKHOLDERS
OF THE COMPANY, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICES
OF THE COMPANY.
The legend on the certificates representing shares held by the Voting
Parties shall be removed immediately prior to any sales permitted by applicable
securities laws and the Lock-Up Agreement of even date herewith, and the
provisions of this Voting Agreement shall not be binding on the transferee of
such shares.
1.6 Application of Agreement to After-Acquired Securities. All of the
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provisions of this Article 1 shall apply to all voting securities held by the
Voting Parties, whether issued before or after the date of this Agreement, and
all securities issued as a replacement for the securities or with respect to
the securities as a result of any stock dividend, stock split or other similar
event.
1.7 Covenants of the Company. The Company agrees to ensure that the
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rights granted hereunder are effective and that the parties hereto enjoy the
benefits thereof. Such actions include, without limitation, the use of the
Company's best efforts to assist in the nomination and election of the
directors as provided above. The Company will not, by any voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to be
performed hereunder by the Company, but will at all times in good faith assist
in the carrying out of all of the provisions of this Agreement and in the
taking of all such actions as may be necessary, appropriate or reasonably
requested by the holders of a majority of the outstanding voting securities
held by the parties hereto assuming conversion of all outstanding securities in
order to protect the rights of the parties hereunder against impairment.
1.8 Nontransferability. Each party to this Agreement hereby agrees
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that the obligations and covenants contained in this Article 1 are unique to
the original parties hereto and that no party may donate, transfer, sell,
assign, pledge, hypothecate or otherwise dispose of (other than to an agent,
wholly-owned subsidiary or other person or entity that such party controls
either directly or indirectly), any of its rights and obligations under this
Agreement unless its transferee signs a joinder agreement agreeing to be bound
by the terms of this Agreement. Any such transfer not effected in accordance
with this Section 1.7 shall be null and void ab initio.
1.9 Representations of Alliance. Alliance hereby represents and
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warrants to each other party to this Agreement that, as of the date hereof,
Xxxxxxx X. Xxxxxx and Xxxxx X. Xxxxxx are the sole general partners of Alliance.
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ARTICLE 2
ADDITIONAL TERMS
2.1 No Heightened Duties. Each party hereby acknowledges and agrees
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that no fiduciary duty, duty of care, duty of loyalty or other heightened duty
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shall be created or imposed upon any party to any other party, the Company or
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other stockholder of the Company, by reason of this Agreement and/or any right
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or obligation hereunder.
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2.2 Amendments; Waiver. Any term in this Agreement may be amended or
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waived only by the written consent of each of the Company, Equus (so long as it
has a right to designate a director under Section 1.1(b)), Alliance, and
holders of a majority of the Common Stock held by the Significant PEI
Shareholders at the time of the amendment or waiver. Any amendment or waiver
not effected in accordance with this Section 2.2 shall be null and void and
non-binding upon the Voting Parties and their respective successors and
assigns. No waivers of any breach of this Agreement extended by any party
hereto and any other party shall be construed as a waiver of any rights or
remedies of such party or any other party hereto with respect to any subsequent
breach.
2.3 Notices. Any notice required or permitted by this Agreement shall
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be in writing and shall be deemed delivered on the date of delivery, when
delivered personally, by overnight courier or sent by telegram or confirmed
fax, or 48 hours after being deposited in the U.S. mail, as certified or
registered mail, with postage prepaid, to the Voting Parties at the address
below their signature below, or at such other address as the Voting Parties
shall have furnished in writing to the other parties hereto.
2.4 Severability. If any provision of this Agreement is held by final
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judgment of a court of competent jurisdiction to be invalid, illegal or
unenforceable, such invalid, illegal or unenforceable provision shall be
severed from the remainder of this Agreement, and the remainder of this
Agreement shall be enforced. In addition, the invalid, illegal or unenforceable
provision shall be deemed to be automatically modified, and, as so modified, to
be included in this Agreement, such modification being made to the minimum
extent necessary to render the provision valid, legal and enforceable.
Notwithstanding the foregoing, however, if the severed or modified provision
concerns all or a portion of the essential consideration to be delivered under
this Agreement by one party to the other, the remaining provisions of this
Agreement shall also be modified to the extent necessary to equitably adjust
the parties= respective rights and obligations hereunder.
2.5 Governing Law. This Agreement and all acts and transactions
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pursuant hereto and the rights and obligations of the parties hereto shall be
governed, construed and interpreted in accordance with the laws of the State of
Texas, without giving effect to principles of conflicts of law. Venue for any
disputes pursuant to this Agreement shall be in Xxxxxx County, Texas, and the
parties agree to submit to the jurisdiction of the state and federal courts in
Xxxxxx County, Texas.
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2.6 Counterparts; Facsimile Signatures. This Agreement may be executed
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by facsimile and in two or more counterparts, each of which shall be deemed an
original and all of which taken together shall constitute one agreement.
Signatures transmitted via facsimile shall be deemed originals for purposes of
this Agreement.
2.7 Successors and Assigns. Subject to Section 1.7, the terms and
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conditions of this Agreement shall inure to the benefit of and be binding upon
the respective successors and assigns of the parties. Nothing in this
Agreement, express or implied, is intended to confer upon any party other than
the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
2.8 Specific Performance. The parties hereby acknowledge that it is
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impossible to measure in money the damages which will accrue to a party hereto
or to its heirs, personal representatives, or assign by reason of a party's
failure to perform its obligations under this Agreement and therefore agree
that, in addition to and without limiting any remedies available at law, each
of the parties hereto shall have full equitable remedies available to such
party.
2.9 Termination. This Agreement shall terminate and the rights and
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obligations of the parties hereunder shall cease upon the earliest of: (i) the
written consent of each of the Company, Equus (as long as it has a right to
elect a director hereunder), Alliance, the Shareholder Representative, and
holders of a majority of the shares of Common Stock held by the Significant PEI
Shareholders, or (ii) the fifth anniversary of the Effective Date.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as
of the Effective Date.
THE COMPANY:
INDUSTRIAL DATA SYSTEMS CORPORATION,
a Nevada corporation
By:__________________________________________
Xxxxxxx X. Xxxxxx, President
Address: 000 Xxxxxxx Xxxxx Xxxxx, Xxxxxxxx 000
Xxxxxxx, Xxxxx 00000
EQUUS:
EQUUS II INCORPORATED,
a Delaware corporation
By:__________________________________________
Xxxxxxx Xxxx, Vice President
Address: 0000 Xxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
ALLIANCE:
ALLIANCE 2000, LTD.,
a Texas limited partnership
By:__________________________________________
Xxxxxxx X. Xxxxxx, Its General Partner
By:__________________________________________
Xxxxx X. Xxxxxx, Its General Partner
Address: 000 Xxxxxxx Xxxxx Xxxxx, Xxxxxxxx 000
Xxxxxxx, Xxxxx 00000
SIGNIFICANT PEI SHAREHOLDERS:
EQUUS II INCORPORATED, a Delaware corporation
By:__________________________________________
Xxxxxxx X. Xxxx, Vice President
X.X. Xxxxxx Family Partnership, Ltd.*
Xxxxxxx X. Xxxxxx*
Xxxxx Xx-Xxxxxx*
Xxxxxxx X. Xxxxxxxx*
Xxxxx X. Xxxxxx*
Xxxxxx X. Xxxxxxxxx*
Xxxxxx X. Xxxxx*
Xxxxxxx X. Xxxxxx Family Partnership, Ltd.*
The Xxxx Xxxxx Family Limited Partnership, Ltd.*
Xxxx X. Xxxxx*
Xxxxx X. Xxxxx*
Xxxxxx X. Xxxxxx, Xx.*
Xxxxx Group, Ltd.*
Xxxxxx X. Xxxxxxx*
Xxxxxx X. Xxxxxxx Family Partnership, Ltd.*
Xxxx X. Xxxxxx, Xx.*
The Xxxxxxxx X. Xxxxxxxx Family
Partnership, Ltd.*
Xxxxxx X. Xxxxx*
Xxxxx Xxxxx*
Xxxxxxx or Xxxxxxx Xxxxxx*
Xxxxxx X. Xxxxxx*
Xxxxx X. Xxxxxx, Xx.*
* Indicates that the Shareholder has executed this Voting Agreement by
execution of a Master Signature Page.
