Exhibit 99.5
IRREVOCABLE PROXY
AND
VOTING AGREEMENT
THIS IRREVOCABLE PROXY AND VOTING AGREEMENT (this "Agreement"), dated as of
December 2, 2003, is entered into by and between Kforce Inc., a Florida
corporation ("Parent"), and Novato Acquisition Corporation, a Delaware
corporation and wholly-owned subsidiary of Parent ("Acquisition"), on the one
hand, and Xxxx X. Xxxxxx ("Stockholder") on the other hand, and, with respect to
Section 8(j) only, Xxxx, Xxxxxx & Associates, Inc., a Delaware corporation (the
"Company").
RECITALS
WHEREAS, concurrently herewith, Parent, Acquisition, and the Company have
entered into an Agreement and Plan of Merger, of even date herewith (as such
agreement may hereafter be amended from time to time in conformity with the
provisions thereof, the "Merger Agreement"), pursuant to which Acquisition will
merge with and into the Company and the Company shall be the surviving
corporation and become a wholly-owned subsidiary of Parent (the "Merger");
WHEREAS, Stockholder is the beneficial owner (as defined below) of six
hundred ninety-seven thousand, nine hundred eighty-four (697,984) shares of
common stock, $0.001 par value per share, of the Company (such shares, together
with all other shares of capital stock or other voting securities of the Company
with respect to which the Stockholder has beneficial ownership as of the date of
this Agreement, and any shares of capital stock or other voting securities of
the Company, beneficial ownership of which is directly or indirectly acquired
after the date hereof, including, without limitation, shares received pursuant
to any stock splits, stock dividends or distributions, shares acquired by
purchase or upon the exercise, conversion or exchange of any option, warrant or
convertible security or otherwise, and shares or any voting securities of the
Company received pursuant to any change in the capital stock of the Company by
reason of any recapitalization, merger, reorganization, consolidation,
combination, exchange of shares or the like, are referred to herein as the
"Stockholder Shares"); and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Parent and Acquisition have requested that Stockholder agree, and
Stockholder has agreed, to enter into this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual premises,
representations, warranties, covenants and agreements contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Definitions. For the purposes of this Agreement, terms not defined
herein but used herein and defined in the Merger Agreement shall have the
meanings set forth in the Merger Agreement, unless the context clearly indicates
otherwise.
2. Disclosure. Stockholder hereby agrees to permit the Company and Parent
to publish and disclose in the S-4 Registration Statement and the Proxy
Statement (including all documents and schedules filed with the SEC), and any
press release or other disclosure document which Parent and the Company
reasonably determine to be necessary or desirable in connection with the Merger
and any transactions related thereto, Stockholder's identity and ownership of
the Stockholder Shares and the nature of Stockholder's commitments, arrangements
and understandings under this Agreement.
3. Voting Agreement. Stockholder hereby irrevocably agrees with Parent and
Acquisition that during the period commencing on the date hereof and continuing
until the first to occur of (a) the Effective Time or (b) the termination of the
Merger Agreement in accordance with its terms (the "Termination Date"), at any
meeting of the Company's stockholders, however called, or in connection with any
written consent of the Company's Stockholders, Stockholder shall appear at each
such meeting, in person or by proxy, or otherwise cause all Stockholder Shares
then outstanding to be counted as present thereat for purposes of establishing a
quorum, and Stockholder shall vote, or cause to be voted (or in connection with
any written consent of the Company's stockholders, act, or cause to be acted, by
written consent) with respect to all Stockholder Shares that Stockholder is
entitled to vote or as to which Stockholder has the right to direct the voting,
as of the relevant record date, (i) in favor of approval of the Merger Agreement
and the transactions contemplated thereby; (ii) against any proposal that is
intended to, or is reasonably likely to result in any of the conditions of the
Parent's or Acquisition's obligations under the Merger Agreement not being
fulfilled; (iii) against any action or agreement that would result in a breach
in any respect of any covenant, representation or warranty, or any other
obligation or agreement, of the Company under the Merger Agreement or
Stockholder under this Agreement; and (iv) against (A) any Third Party
Acquisition Proposal (as defined in the Merger Agreement), or (B) the election
of a group of individuals to replace a majority or more of the individuals
presently on the Company Board; provided that if one or more individuals
presently on the Company Board withdraws his or her nomination for reelection at
any meeting of stockholders for the election of directors, Stockholder may vote
for a replacement director nominated by the Company Board for such
individual(s). The Stockholder agrees that the obligations under this Agreement
are unconditional and will remain in full force and effect notwithstanding that
the Company Board may have withdrawn or amended its recommendation and approval
of the Merger. Further, the Stockholder will not enter into any agreement or
understanding with any Person the effect of which would be inconsistent with or
violative of any provision contained in this Section 3.
4. Irrevocable Proxy.
(a) Stockholder hereby irrevocably constitutes and appoints Parent,
which shall act by and through Xxxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxx, and Xxxxxxx
X. Xxxxxx (each, a "Proxy Holder"), or any of them, with full power of
substitution, its true and lawful proxy and attorney-in-fact to vote at any
meeting (and any adjournment or postponement thereof) of the Company's
stockholders called for purposes of considering whether to approve the Merger
Agreement and transactions contemplated thereby, any Third Party Acquisition
Proposal or any other transaction described in Section 3 hereof, or to execute a
written consent of stockholders in lieu of any such meeting (if so permitted),
all Stockholder Shares held by Stockholder of record as of the relevant record
date in favor of the approval of the Merger Agreement and transactions
contemplated
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thereby and against any Third Party Acquisition Proposal or any other action
described in Section 3(iv)(B) hereof.
(b) The proxy and power of attorney granted herein shall be irrevocable
during the term of this Agreement, shall be deemed to be coupled with an
interest sufficient in law to support an irrevocable proxy and shall revoke all
prior proxies granted by Stockholder which conflicts with the proxy granted
herein. Stockholder shall not grant any proxy to any person which conflicts with
the proxy granted herein, and any attempt to do so shall be void. The power of
attorney granted herein is a durable power of attorney and shall survive the
death or incapacity of Stockholder.
(c) If Stockholder fails for any reason to vote his, her or its
Stockholder Shares as required by Section 3 hereof, then the Proxy Holder shall
have the right to vote the Stockholder Shares at any meeting of the Company's
stockholders and in any action by written consent of the Company's stockholders
in accordance with this Section 4. The vote of a Proxy Holder shall control in
any conflict between a vote of such Stockholder Shares by a Proxy Holder and a
vote of such Stockholder Shares by Stockholder with respect to the matters set
forth in Section 4(a) hereof.
5. Director and Officer Matters Excluded. Parent and Acquisition
acknowledge and agree that no provision of this Agreement shall limit or
otherwise restrict Stockholder with respect to any act or omission that
Stockholder may undertake or authorize in Stockholder's capacity as a director
or officer of the Company, including, without limitation, any vote that
Stockholder may make as a director or officer of the Company with respect to any
matter presented to the Company Board.
6. Other Covenants, Representations and Warranties. Stockholder hereby
represents and warrants to, and covenants with, Parent and Acquisition as
follows:
(a) Title to Stockholder Shares. Stockholder is the beneficial owner (as
defined in Rule 13(d)(3) promulgated under the Exchange Act, "beneficial owner")
of all the Stockholder Shares. Except as set forth in Annex 1, attached hereto,
Stockholder has sole voting power and the sole power of disposition with respect
to all of the Stockholder Shares outstanding on the date hereof, and will have
sole voting power and sole power of disposition with respect to all of the
Stockholder Shares acquired by such Stockholder after the date hereof upon the
exercise, conversion or exchange of any option, warrant or convertible security
owned or held by Stockholder as of the date hereof, with no limitations,
qualifications or restrictions on such rights. Stockholder is the sole record
holder (as reflected in the records maintained by the Company's transfer agent)
of the Stockholder Shares outstanding on the date hereof.
(b) Power; Binding Agreement. Stockholder has and will have the legal
capacity, power and authority to enter into and perform all of Stockholder's
obligations under this Agreement. The execution, delivery and performance of
this Agreement by Stockholder will not violate any agreement or court order to
which Stockholder is a party or is subject, including, without limitation, any
voting agreement or voting trust. This Agreement has been duly and validly
executed and delivered by Stockholder and constitutes a valid and binding
agreement of Stockholder, enforceable against Stockholder in accordance with its
terms.
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(c) Restriction on Transfer, Proxies and Non-Interference; Stop
Transfer. Except as expressly contemplated by this Agreement, during the term of
this Agreement, Stockholder shall not, directly or indirectly: (i) offer for
sale, sell, transfer, tender, pledge, encumber, assign or otherwise dispose of,
or enter into any contract, option or other arrangement or understanding with
respect to, or consent to the offer for sale, sale, transfer, tender, pledge,
encumbrance, assignment or other disposition of, any or all of the Stockholder
Shares or any interest therein; (ii) grant any proxies or powers of attorney
with respect to any Stockholder Shares which conflicts with Section 4(a) hereof
and the proxy granted herein or deposit any Stockholder Shares into a voting
trust or enter into a voting agreement with respect to any Stockholder Shares;
or (iii) take any action that would make any representation or warranty of
Stockholder contained herein untrue or incorrect or have the effect of
preventing or disabling Stockholder from performing any of Stockholder's
obligations under this Agreement. Stockholder further agrees with and covenants
to Parent that Stockholder shall not request that the Company register the
transfer of any certificate or uncertificated interest representing any of the
Stockholder Shares, unless such transfer is made in compliance with this
Agreement. Stockholder agrees that, in order to ensure compliance with the
restrictions referred to herein, the Company may issue appropriate "stop
transfer" instructions to its transfer agent.
(d) No Consents. To his, her or its knowledge, the execution and
delivery of this Agreement by Stockholder does not, and the performance by
Stockholder of his, her or its obligations hereunder will not, require
Stockholder to obtain any consent, approval, authorization or permit of, or to
make any filing with or notification to, any Governmental Entity. There is no
beneficiary or holder of a voting trust certificate or other interest of any
trust of which Stockholder is a trustee whose consent is required for the
execution and delivery of this Agreement or the consummation by Stockholder of
the transactions contemplated hereby. If Stockholder is married and
Stockholder's Shares constitute community property, this Agreement has been duly
authorized, executed and delivered by, and constitutes a valid and binding
agreement of, Stockholder's spouse, enforceable against such person in
accordance with its terms.
(e) Notification of Parent. Stockholder hereby agrees, while this
Agreement is in effect, to notify Parent and Acquisition promptly of the number
of any additional shares of capital stock and the number and type of any other
voting securities of the Company acquired by such Stockholder, if any, after the
date hereof.
(f) Reliance by Parent and Acquisition. Stockholder understands and
acknowledges that Parent and Acquisition are entering into the Merger Agreement
in reliance upon Stockholder's execution and delivery of this Agreement.
(g) Sophistication. Stockholder acknowledges being an informed and
sophisticated investor and, together with Stockholder's advisors, has undertaken
such investigation as they have deemed necessary, including the review of the
Merger Agreement and this Agreement, to enable the Stockholder to make an
informed and intelligent decision with respect to the Merger Agreement and this
Agreement and the transactions contemplated thereby and hereby.
(h) Permitted Transfers. Notwithstanding Section 6(c), Stockholder shall
have the right to (A) transfer Stockholder Shares to (1) any Family Member; (2)
the trustee or trustees of a trust for the benefit of Stockholder and/or one or
more Family Members; (3) a partnership of which Stockholder and/or Family
Members owns a majority of the partnership interests; (4) a
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limited liability company of which Stockholder and/or any Family Members owns a
majority of the membership interests; (5) the executor, administrator or
personal representative of the estate of Stockholder; "Family Member" means
Stockholder's spouse, father, mother, issue (if living with Stockholder),
brother or sister. Stockholder agrees that this Agreement and the obligations
hereunder shall attach to the Stockholder's Shares and shall be binding upon any
Person to which legal or beneficial ownership of such Shares shall pass, whether
by operation of law or otherwise, including without limitation, Stockholder's
heirs, guardians, administrators or successors. Notwithstanding anything to the
contrary in this Section 6(h), Stockholder acknowledges and agrees that any
transfer permitted by this Section 6(h) will not be effective until the
transferee agrees in writing to be bound by the terms of this Agreement.
Notwithstanding any such transfer of Shares, the transferor shall remain liable
for the performance of all obligations under this Agreement.
(i) No Encumbrances. Except as applicable in connection with the
transactions contemplated by Section 3 and 4 hereof, the Stockholder's Shares at
all times during the term hereof will be beneficially owned by Stockholder, free
and clear of all liens, claims, security interests, proxies, voting trusts or
agreements, understandings or arrangements or any other encumbrances whatsoever.
(j) No Conflicts. None of the execution and delivery of this Agreement
by Stockholder, the consummation by Stockholder of the transactions contemplated
hereby or compliance by the Stockholder with any of the provisions hereof (A)
result in a violation or breach of, or constitute (with or without notice or
lapse of time or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration) under any of
the terms, conditions or provisions of any note, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding, agreement or other
instrument or obligation of any kind to which Stockholder is a party or by which
Stockholder or any of his or her properties or assets may be bound, or (B)
violate any order, writ injunction, decree, judgment, order, statute, rule or
regulation applicable to Stockholder or any of his or her properties or assets.
7. Termination. The voting agreement and irrevocable proxy granted pursuant
to Sections 3 and 4 hereof shall terminate immediately upon the earlier to occur
of (a) the Termination Date and (b) the Effective Time.
8. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
other prior agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof.
(b) Assignment. This Agreement shall not be assigned by operation of law
or otherwise without the prior written consent of the other party, and any
attempted assignment in violation hereof shall be void; provided, however, that
Parent may, in its sole discretion, assign its rights and obligations hereunder
to any direct or indirect wholly-owned subsidiary of Parent.
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(c) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by the parties
hereto.
(d) Notices. All notices and other communications pursuant to this
Agreement shall be in writing and shall be deemed given if delivered personally,
sent by facsimile, sent by nationally-recognized overnight courier or mailed by
registered or certified mail (return receipt requested), postage prepaid, to the
parties at the addresses set forth below or to such other address as the party
to whom notice is to be given may have furnished to the other parties hereto in
writing in accordance herewith. Any such notice or communication shall be deemed
to have been delivered and received (i) in the case of personal delivery, on the
date of such delivery, (ii) in the case of facsimile, on the date sent if
confirmation of receipt is received and such notice is also promptly mailed by
registered or certified mail (return receipt requested), (iii) in the case of a
nationally-recognized overnight courier in circumstances under which such
courier guarantees next business day delivery, on the next business day after
the date when sent, and (iv) in the case of mailing, on the third business day
following that on which the piece of mail containing such communication is
posted:
if to Parent or Acquisition: Kforce Inc.
0000 Xxxx Xxxx Xxxxxx
Xxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
with a copy to: Holland & Knight LLP
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
if to Stockholder, to: such address for Stockholder as set
forth on the signature page hereto
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(e) Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
(f) No Waiver. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any
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custom or practice of the parties at variance with the terms hereof, shall not
constitute a waiver by such party of its right to exercise any such or other
right, power or remedy or to demand such compliance.
(g) Governing Law; Venue; Specific Performance; Waiver of Jury Trial.
This Agreement shall be deemed to be made in and in all respects shall be
interpreted, construed and governed by and in accordance with the laws of the
State of Delaware without regard to the conflict of law principles thereof. The
parties hereby irrevocably submit to the jurisdiction of the courts of the State
of Delaware and the Federal courts of the United States of America located in
the State of Delaware solely in respect of the interpretation and enforcement of
the provisions of this Agreement and of the documents referred to in this
Agreement, and in respect of the transactions contemplated hereby, and hereby
waive, and agree not to assert, as a defense in any action, suit or proceeding
for the interpretation or enforcement hereof or of any such document, that it is
not subject thereto or that such action, suit or proceeding may not be brought
or is not maintainable in said courts or that the venue thereof may not be
appropriate or that this Agreement or any such document may not be enforced in
or by such courts, and the parties hereto irrevocably agree that all claims with
respect to such action or proceeding shall be heard and determined in such a
Delaware state or federal court. The parties hereby consent to and grant any
such court jurisdiction over the person of such parties and over the subject
matter of such dispute and agree that mailing of process or other papers in
connection with any such action or proceeding in the manner provided in Section
8(d) hereof or in such other manner as may be permitted by applicable law, shall
be valid and sufficient service thereof.
All rights, powers and remedies provided under this Agreement or
otherwise available in respect hereof at law or in equity shall be cumulative
and not alternative, and the exercise of any such rights, powers or remedies by
any party shall not preclude the simultaneous or later exercise of any other
such right, power or remedy by such party.
The parties agree that irreparable damage would occur and that the
parties would not have any adequate remedy at law in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to seek an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
of this Agreement in any court of the State of Delaware and the Federal courts
of the United States of America located in the State of Delaware, this being in
addition to any other remedy to which they are entitled at law or in equity.
Each party acknowledges and agrees that any controversy which may
arise under this Agreement is likely to involve complicated and difficult
issues, and therefore each such party hereby irrevocably and unconditionally
waives any right such party may have to a trial by jury in respect of any
litigation directly or indirectly arising out of or relating to this Agreement
or the transactions contemplated by this Agreement. Each party certifies and
acknowledges that (i) no representative, agent or attorney of any other party
has represented, expressly or otherwise, that such other party would not, in the
event of litigation, seek to enforce the foregoing waiver, (ii) each such party
understands and has considered the implications of this waiver, (iii) each such
party makes this waiver
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voluntarily, and (iv) each such party has been induced to enter into this
Agreement by, among other things, the waivers and certifications in this Section
8(g).
(h) Counterparts. This Agreement may be executed by facsimile and in
one or more counterparts, each of which shall be deemed to be an original but
all of which shall constitute one and the same agreement.
(i) Further Assurances. At the request of any party to another party
or parties to this Agreement, such other party or parties shall execute and
deliver such instruments or documents to evidence or further effectuate (but not
to enlarge) the respective rights and obligations of the parties and to evidence
and effectuate any termination of this Agreement.
(j) Company Stop Transfer Agreement. The Company hereby acknowledges
the restrictions on transfer of the Stockholder Shares contained in Section 6(c)
hereof. The Company agrees not to register the transfer (book-entry or
otherwise) of any certificate or uncertificated interest representing any
Stockholder Shares, unless such transfer is made pursuant to and in compliance
with this Agreement. The Company further agrees to instruct its transfer agent
(the "Transfer Agent") not to transfer any certificate or uncertificated
interest representing any Stockholder Shares, until (i) the Transfer Agent has
received Parent's consent to such a transfer, or (ii) this Agreement has been
terminated pursuant to Section 7 hereof.
(k) No Third Party Beneficiaries. This Agreement is not intended to
confer upon any person other than the parties hereto any rights or remedies
hereunder.
(l) Description Headings. The description headings used herein are for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement.
(Remainder of page intentionally left blank)
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IN WITNESS WHEREOF, Parent, Acquisition and Stockholder have caused this
Agreement to be duly executed as of the day and year first above written.
KFORCE INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
NOVATO ACQUISITION CORPORATION
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer, President,
Secretary and Treasurer
STOCKHOLDER:
/s/ Xxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Director
Address: 000 Xxxxxx Xxxxx Xxxxx
-------------------------------------
Xxxxxxxxxxx, XX 00000
-------------------------------------
SPOUSE OF STOCKHOLDER (IF APPLICABLE):
_______________________________________________
Name: _________________________________________
Address: ______________________________________
_______________________________________________
ACKNOWLEDGED AND AGREED TO
(with respect to Section 8(j)):
XXXX, XXXXXX & ASSOCIATES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Vice President and Chief Financial Officer
Annex 1
Exceptions to Sole Voting and Disposition Power
Includes 121,000 shares held by Xx. Xxxxxx as custodian for his children and by
Xx. Xxxxxx'x children and 25,000 shares subject to stock options that are
expected to be at or below market value and exercisable upon the closing of the
transaction contemplated by this filing.
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