1
Exhibit 9.2
VOTING AGREEMENT
This Voting Agreement dated as of November 11, 2000, (this "Agreement")
and amended January 19, 2001, is made by and between Elektryon, a Nevada
corporation (the "Company"), and Xxxxx Xxxxxxx ("Xxxxxxx").
WHEREAS, the underwriters of the Company's proposed IPO (as defined below)
have requested that, in order to facilitate the IPO, Xxxxxxx transfer all of
his shares of Common Stock (as defined below) to a blind voting trust; and
WHEREAS, Xxxxxxx is willing to transfer his shares of Common Stock to
blind voting trust created hereby on the terms and conditions set forth herein,
and to so restrict his right to vote his stock to so facilitate the IPO.
IT IS THEREFORE AGREED between the Company and Xxxxxxx that the purpose of
this Voting Agreement is to restrict the right of Xxxxxxx to vote his stock,
and not to limit, diminish, or curtail in any way Xxxxxxx'x right to sell,
transfer, hypothecate or encumber his stock, and that therefore, the parties
agree that this Voting Agreement does not effect Xxxxxxx'x right to sell,
transfer, hypothecated, and/or encumber his stock, but only places restrictions
on how this stock may be voted, and then only according to the terms of this
Voting Agreement, and
NOW, THEREFORE, in consideration for the foregoing premises and the
agreements and undertakings hereinafter set forth, and for other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree
as follows:
ARTICLE I
DEFINITIONS
For purposed of this Agreement, the following terms shall have the
following respective meanings:
An "Affiliate" of any Person, or a Person "Affiliated With" a specific Person,
shall mean a Person that directly, or indirectly through one or more
intermediaries, controls, is controlled by or is under common control with, the
Person specified.
An "Associate" of any Person shall mean (1) any corporation or organization of
which such Person is an officer or partner or is, directly or indirectly, the
beneficial owner of 5% or more of any class or series of equity securities, (2)
any trust or other estate in which such Person has a substantial beneficial
(under all circumstances an interest of 5% or greater will be deemed
substantial) interest or as to which such Person serves as trustee, executor,
nominee,
Voting Agreement
Page 1 of 10
2
administrator, conservator, attorney-in-fact or in a similar fiduciary capacity
or (3) any member of such Person's Immediate Family who resides in such Person's
home.
A person shall be deemed the "beneficial owner" of, and shall be deemed to
"beneficial own" and to have "beneficial ownership" of:
(i) any securities that such Person or any of such Person's Affiliates or
Associates, or any member of any 13D Group of which such Person or any
Affiliate or Associate of such Person is a member, "beneficially owns"
within the meaning of Rule 13d-3 under the Exchange Act, as in effect
on the date of this Agreement; and
(ii) any securities (the "underlying securities") that such Person or any
of such Person's Affiliates or Associates has the right to acquire
(whether such right is exercisable immediately or only after the
passage of time, with or without the provision of notice) pursuant to
any agreement, arrangement or understanding (written or oral), or upon
the exercise of any rights, puts, calls, warrants or options or
otherwise (it being understood that such Personal shall also be deemed
to be the beneficial owner of any securities convertible into or
exchangeable or exercisable for any underlying or derivative
securities).
"Board" shall mean the Board of Directors of the Company.
"Commission" shall mean the Securities and Exchange Commission.
"Common Stock" shall mean the common stock, $.001 par value, of the Company and
all securities of the Company into which such common stock hereafter may be
reconstituted or recapitalized.
"Control" shall have the meaning ascribed to such term in Rule 12b-2 under the
Exchange Act, as in effect on the date of this Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended, or
any successor statute, as in effect on the date in question, unless otherwise
specifically provided.
"Immediate Family" shall mean, with respect to any Person, a Person's spouse,
parents, children, siblings, grandchildren, mother-in-law, father-in-law,
brothers-in-law, sisters-in-law, daughters-in-law or sons-in-law, who reside in
such Person's home.
"Independent Director" shall mean a member of the Board who meets the definition
of an independent director set forth in Rule 4200 of the Rule of the National
Association of Securities Dealers, Inc.
"IPO" shall mean the initial public offering of the Common Stock.
Voting Agreement
Page 2 of 10
3
"Person" shall mean any individual, firm, corporation, partnership, limited
partnership, charitable organization, limited liability company, trust, joint
venture, estate, association, public or governmental authority or other entity.
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
successor statue, as in effect on the date in question, unless otherwise
specifically provided.
"13D Group" shall mean any group of Persons formed for the purpose of, directly
or indirectly, acquiring, holding, voting or disposing of shares of Common
Stock (or any right thereto or interest therein) which would be required under
Section 13(d) of the Exchange Act, and the rules and regulations of the Common
Stock (or any securities exercisable or exchangeable for or convertible into
the Common Stock) representing more than 5% of the Common Stock then
outstanding.
ARTICLE II
LEGEND ON CERTIFICATES
All shares of Common Stock now or hereafter beneficially owned by Xxxxxxx
shall be held in certificated form and shall bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A VOTING
AGREEMENT DATED NOVEMBER 11, 2000 (THE "VOTING AGREEMENT"), BETWEEN THE COMPANY
AND THE ORIGINAL HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE. A
COPY OF THE VOTING AGREEMENT MAY BE OBTAINED FROM THE COMPANY FREE OF CHARGE.
BY ITS ACCEPTANCE HEREOF, THE HOLDER OF THIS CERTIFICATE AGREES TO COMPLY IN
ALL RESPECTS WITH THE REQUIREMENTS OF THE VOTING AGREEMENT.
Upon any transfer by Xxxxxxx to an unaffiliated third party, the foregoing
legend shall be removed.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1. REPRESENTATIONS AND WARRANTIES OR XXXXXXX. Xxxxxxx
represents and warrants to the Company that:
(a) Xxxxxxx has the legal capacity to execute and deliver this Agreement.
(b) This Agreement has been duly executed and delivered by Xxxxxxx, is a
valid and binding agreement of Xxxxxxx, and is enforceable against
Xxxxxxx in accordance with its terms.
Voting Agreement
Page 3 of 10
4
(c) The execution, delivery and performance by Xxxxxxx of this Agreement
does not and will not violate or conflict with or result in breach
of or constitute (with or without notice or lapse of time or both) a
default under contract, commitment, agreement, understanding,
arrangement or restriction of any kind of which Xxxxxxx is a party or
by which he or any of his properties may be bound or subject.
(d) Xxxxxxx is the record owner of approximately one million (1,000,000)
shares of Common Stock of the Company which represent all of the
Common Stock owned or record or beneficially by Xxxxxxx on the date
hereto, no preferred stock, notes, debentures, warrants, options,
puts, calls, rights or other securities convertible into or
exercisable or exchangeable for shares of capital stock ("Securities")
of the Company are owned of record or beneficially by Xxxxxxx.
(e) All shares of Common Stock beneficially owned by Xxxxxxx shall be in
certificated form and under his control or in his possession and bear
the legend contained in Section 2.1.
Section 3.2. REPRESENTATION AND WARRANTIES OF THE COMPANY. The
Company represents and warrants to Xxxxxxx that:
(a) The Company is duly authorized to execute, deliver and perform this
Agreement.
(b) This Agreement has been duly executed by the Company, is a valid and
binding agreement of the Company, and is enforceable against the
Company in accordance with its terms.
(c) The execution, delivery and performance by the Company of this
Agreement does not and will not violate or conflict with or result in
a breach of or constitute (with notice of or lapse of time or both) a
default under the Company's Articles of Incorporation, as amended, the
Company's Bylaws, as amended, or under any contract, commitment,
agreement, understanding, arrangement or restriction of any kind to
which the Company is a party or by which it or any of its properties
may be bound or subject.
ARTICLE IV
COVENANTS
Section 4.1. GRANT OF IRREVOCABLE PROXY. Xxxxxxx hereby irrevocably
grants to and appoints the Independent Directors, and each of them
individually, as Xxxxxxx'x proxy and attorney-in-fact (with full power of
substitution), for and in the name, place and stead of Xxxxxxx to vote all
Common Stock held of record or owned by beneficially be Xxxxxxx now or at any
time in the future, or grant a consent or approval in respect of such Common
Stock, and hereby directs his shares be present and voted in accordance with
the provisions of Section 4.2. Xxxxxxx intends that the proxy granted hereby
shall be coupled with an interest pursuant to this Agreement, and that
therefore such proxy shall be irrevocable so long as this Section 4.1 remains
in effect pursuant to the terms of this Agreement.
Voting Agreement
Page 4 of 10
5
To evidence, carry out and effectuate the intent and purposes of this
Section 4.1, no later than 10 business days following the date of this
Agreement, Xxxxxxx shall execute and deliver to the Independent Directors a
proxy covering the Common Stock held of record and/or beneficially owned by
Xxxxxxx in the form of Exhibit A hereto and thereafter, from time to time during
the term of this Agreement, including, without limitation upon the (a) merger or
reincorporation of the Company or (b) resumption of this Agreement pursuant to
Article V, shall further execute and deliver any and all instruments requested
by the Company to confirm the arrangements contemplated by this Section 4.1.
Section 4.2. VOTING. During the term of this Agreement, for so long as
Xxxxxxx beneficially owns any Common Stock, the Independent Directors will take
such action as may be required such that:
(a) all Common Stock beneficially owned by Xxxxxxx and subject to the
irrevocable proxy granted pursuant to Section 4.1 is present for
quorum purposes, in Person or represented by proxy, at every meeting
of the Company's stockholders; and
(b) all Common Stock beneficially owned by Xxxxxxx and subject to the
irrevocable proxy granted pursuant to Section 4.1 is voted at every
meeting of the Company's stockholders (or, if applicable, written
consent is given), in the same proportion as the votes cast by all
stockholders of Common Stock excluding Xxxxxxx and his Affiliates and
Associates.
Section 4.3. REQUIREMENT TO TENDER. Xxxxxxx will take all such action as
may be required such that, in connection with any tender offer or exchange offer
made for the Common Stock (pursuant to Section 4.1 is voted at every meeting of
the Company's stockholders (or if applicable, written consent is given), in the
same proportion as the votes cast by all stockholders of Common Stock excluding
Xxxxxxx and his Affiliates and Associates.
Section 4.4. BOARD REGISTRATION. Neither Xxxxxxx nor any of his Associates
or Affiliates will be appointed, elected or nominated as an officer or director
of the Company or, directly or indirectly whether alone or in concert with
others, seek election to, seek the removal of any directors of, or seek a change
in the composition or size of, the Board, or otherwise act in any way, directly
or indirectly, to Control the Board or otherwise have any involvement in the
management of the Company. Xxxxxxx agrees not to designate, appoint, elect or
nominate, or to participate in the designation or nomination of, any officers of
the Company or directors to the Board.
Section 4.5. PROXY SOLICITATIONS: Other Actions. Neither Xxxxxxx nor any
of his Associates and Affiliates will, directly or indirectly, whether alone or
in concert with others:
(a) make, or in any way participate in, any "solicitation" of proxies" (as
such terms are used in regulations 14A promulgated by the Commission
under the Exchange Act) or solicitation of written authorizations or
consents (within the meaning of Regulation 14C
Voting Agreement
Page 5 of 10
6
promulgated by the Commission under the Exchange Act) relating to the
Common Stock or any other Securities of the Company
(b) call, conduct or in any way consent to or participate in any special
meeting (or action by written authorization or consent) of stockholders
of the Company;
(c) request, or take any action to obtain or retain, any list of holders of
Common Stock or any Securities of the Company;
(d) initiate, propose, encourage or participate in the making of any
stockholder proposal relating to the Company;
(e) deposit any Common Stock in a voting trust or subject any Common Stock to
any voting agreement or similar agreement or arrangement, including any
grant of an irrevocable proxy, other than as contemplated by this
Agreement;
(f) facilitate, encourage, disclose or pursue any intent, purpose, plan or
proposal with respect to the Company, the Board, management, policies or
affairs of the Company or any of the Company's securities or assets or
with respect to this Agreement or any of the parties hereto that is
inconsistent with the provision of this Agreement, including any intent,
purpose, plan or proposal that is conditioned on, or would require any
waiver, amendment, nullification or validation of, any provision of this
Agreement, or take any action that could require the Company to make any
public disclosure relation to any such intent, purpose, plan, proposal or
condition;
(g) facilitate, encourage, request or seek in any way a waiver, amendment,
consent or modification with respect to Section 4.1, 4.2, 4.3, 4.4 or
this Section 4.5; or
(h) assist, advise, facilitate or encourage any Person with respect to, or
seeking to do any of the foregoing.
Section 4.6. Notification as to Certain Matters Xxxxxxx agrees to notify the
Company in writing of any change in his record or beneficial ownership of
Common Stock arising from acquisition of Common Stock not later than ten
business days after such change.
ARTICLE V
TERMS OF THE AGREEMENT
The term of this agreement shall be 25 years commencing on the date of this
Agreement. If shares of a publicly traded stock of Elektryon owned beneficially
by Xxxxxxx constitute less than 5% of the outstanding Common Stock on a fully
diluted basis; this agreement will be null and void.
Voting Agreement
Page 6 of 10
7
The above paragraph as to term has been modified on January 19, 2001. This
change supercedes the paragraph of November 11, 2000 concerning the term of this
voting agreement.
ARTICLE VI
STOCK REGISTRATION AND SALE RIGHTS OF XXXXXXX
The Corporation agrees and warrants that Xxxxxxx'x stock subject to this
Voting Agreement shall be fully registered at the same time and on the same
basis as the other common stock of the Corporation. The Parties hereto recite
and agree that this Voting Agreement is intended to operate only to restrict
Xxxxxxx'x right to vote his stock and is not intended to and shall not operate
in any way to restrict, limit or diminish Xxxxxxx'x right to sell, encumber,
hypothecate, or transfer, with or without consideration, any of Xxxxxxx'x stock
now owned by him or later acquired by him.
ARTICLE VII
PRIOR TRANSFERS BY XXXXXXX
This Voting Agreement is not intended to, and shall not apply to any stock
formerly owned by Xxxxxxx and transferred to any person or entity prior to the
effective date of this Voting Agreement.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Entire Agreement Assignment. This Agreement (a) constitutes
the entire agreement among the parties with respect to the subject matter hereof
and supersedes all other prior and contemporaneous agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof and is not intended to confer upon any Person other than
the parties hereto any rights or remedies hereunder and (b) shall not be
assigned by operation of law or otherwise without the prior written consent of
the other parties hereto, except that the Company may assign this Agreement to
any corporation into which the Company is merged. Any attempted assignment or
transfer in violation of this Section 7.1 shall be void ab initio and of no
effect. Subject to the foregoing, the provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
estates, heirs, successors and assigns.
Section 8.2 Amendments, Waivers. Neither this Agreement nor any provision
hereof may be waived, modified, amended, altered or supplemented, except upon
the execution and delivery of a written agreement executed by the Company and
Xxxxxxx. The waiver by either party of a
Voting Agreement
Page 7 of 10
8
breach of any provision of this Agreement shall not operate, or be construed, as
a waiver of any subsequent breach thereof or a waiver of any other provision of
this Agreement.
Section 8.3 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed given if
delivered personally or sent by facsimile or overnight courier (providing proof
of delivery), to the parties at the following addresses (or at such other
address for a party as he or it shall specify by like notice):
If to Xxxxxxx, to:
Xxxxx X. Xxxxxxx
XX Xxx 00000
Xxx Xxxxx, Xxxxxx 00000
Facsimile: 000-000-0000
Attention: Xxx Xxxxxxx
If to the Company, to:
Elektryon
000 Xxxx Xxxxxxxxxx 00
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Chief Executive Officer
with a copy to:
Xxxxx, Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxx
Section 8.4 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Nevada, without regard to
any applicable conflicts of law principles of such state.
Section 8.5 Enforcement. The parties agree that irreparable damage would
occur to the Company in the event that any of the provisions of this Agreement
were not performed fully in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the Company shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of the Agreement in any court of
the United States located in the State of Nevada or in Nevada state court, this
being in addition to
Voting Agreement
Page 8 of 10
9
any other remedy to which it is entitle at law or in equity, this being in
addition to any other remedy to which it is entitled at law or in equity.
In addition, each of the parties hereto (a) consents to submit itself to
the personal jurisdiction of any federal court located in the State of Nevada or
any Nevada state court in the event any dispute arises out of this Agreement or
any of the transactions contemplated by this Agreement, (b) agrees that it will
not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court and (c) agrees that it will not bring any
action relating to this Agreement or any of the transactions contemplated by
this Agreement in any court other than a federal or state court sitting in the
State of Nevada.
Section 8.6 Stop Transfer Provision. The company shall enter a stop
transfer order with the transfer agent or agents of the Commons Stock against
the transfer of shares held by Xxxxxxx except in compliance with the
requirements of this Agreement. The Company agrees to remove any stop transfer
order with respect to, and to issue unlegended certificates in substitution for,
any shares of Common Stock that are no longer subject to the restrictions
contained in this Agreement.
Section 8.7 Counterparts; Effectiveness. This Agreement may be executed in
one or more counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more counterparts have been
signed by each of the parties and delivered to the parties.
Section 8.8 Interpretation. When a reference is made in this Agreement to
a Section or Schedule, such reference shall be to a Section of, or Schedule to,
this Agreement unless otherwise indicated. The headings contained in this
Agreement are for reference purpose only and shall not affect in any way the
meaning or interpretation of this Agreement. Whenever the words "include",
"includes" or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation".
Section 8.9 Severability. Whenever possible, each provision or portion of
any provision of this Agreement shall be interpreted in such manner as to be
effective but if any provision or portion of any provision of this Agreement is
held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision, and this
Agreement will be reformed, construed and enforced as if such invalid, illegal
or unenforceable provision or portion of any provision had never been contained
herein. The parties shall endeavor in good faith negotiations to replace any
invalid, illegal or unenforceable provision with a valid provision the effects
of which come as close as possible to those of such invalid, illegal or
unenforceable provision.
Section 8.10 Attorney's Fees. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the Company shall
be entitled to reasonable attorney's fees, costs and necessary disbursements, in
addition to any other relief to which it may be entitled.
Voting Agreement
Page 9 of 10
10
Section 8.11 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations, warranties, covenants and agreements contained in this
Agreement shall survive the executive of this Agreement and any investigation
at any time by or on behalf of Xxxxxxx or the Company.
IN WITNESS WHEREOF, the Company and Xxxxxxx have caused this Agreement to
be duly executed as of the day and year first above written.
ELEKTRYON
By: /s/ M.E. XXXXXXXXX 1/22/01
--------------------------
Name: M.E. XXXXXXXXX
-----------------------
Title: PRESIDENT
-----------------------
/s/ XXXXX X. XXXXXXX
------------------------------
XXXXX X. XXXXXXX
VOTING AGREEMENT
Page 10 of 10
