VOTING AGREEMENT
Exhibit 10.3
VOTING AGREEMENT, dated as of June 24, 2006 (the “Agreement”), by and among Telmar
Network Technology, Inc., a Delaware corporation (“Parent”), Telmar Acquisition Corp., a
Delaware corporation and a wholly owned subsidiary of Parent (“Merger Sub”), and S. Xxxx
Xxxxx (the “Stockholder”), a stockholder of 25,000 shares of Xxxxxx Communications, Inc.
(the “Company”).
W I T N E S S E T H:
WHEREAS, contemporaneously with the execution and delivery of this Agreement, Merger Sub and
the Company are entering into an Agreement and Plan of Merger, dated as of the date hereof (as such
agreement may hereafter be amended from time to time, the “Merger Agreement”), which
provides for, upon the terms and subject to the conditions set forth therein, the merger of Merger
Sub with and into the Company (the “Merger”);
WHEREAS, as of the date hereof, the Stockholder owns beneficially the number of shares of
common stock, par value $0.001 per share, of the Company (the “Company Common Stock”) set
forth above (all such shares so owned and which may hereafter be acquired by the Stockholder prior
to the termination of this Agreement, whether upon the exercise of options, conversion of
convertible securities, exercise of warrants or by means of purchase, dividend, distribution or
otherwise, being referred to herein as the Stockholder’s “Shares”);
WHEREAS, approval of the Merger Agreement by the Company’s stockholders is required in order
to consummate the Merger;
WHEREAS, as a condition to Merger Sub’s willingness to enter into the Merger Agreement, Merger
Sub has requested that the Stockholder enter into this Agreement; and
WHEREAS, in order to induce Merger Sub to enter into the Merger Agreement, the Stockholder is
willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements
herein contained, and intending to be legally bound hereby, Parent, Merger Sub and the Stockholder
hereby agree as follows:
ARTICLE I.
TRANSFER AND VOTING OF SHARES; AND
OTHER COVENANTS OF THE STOCKHOLDER
OTHER COVENANTS OF THE STOCKHOLDER
SECTION 1.1. Voting of Shares. From the date hereof until the termination of this
Agreement pursuant to Section 4.2 hereof (the “Term”), at any meeting of the stockholders
of the Company, however called and at any adjournment or postponement thereof, and in any action by
consent of the stockholders of the Company, the Stockholder shall (A) appear at such meeting or
otherwise cause its Shares to be counted as present thereat for purposes of establishing a quorum
and (B) vote (or cause to be voted) its Shares (i) in favor of the Merger, the Merger Agreement and
all the other transactions contemplated thereby, (ii) against (a) any Takeover Proposal, (b) any
proposal for action or agreement that would result in a breach of any covenant, representation or
warranty or any other obligation or agreement of the Company under the Merger Agreement or which is
reasonably likely to result in any of the conditions of the Company’s obligations under the Merger
Agreement not being fulfilled, (c) any change in the directors of the Company, (d) any change in
the present capitalization of the Company or any amendment to the Company’s Restated Certificate of
Incorporation, as amended, or By-Laws or (e) any other change in the Company’s corporate structure
or business or change in any manner of the voting rights of the Company’s capital stock, or any
other action, which in the case of each of the matters referred to in this clause (ii) could
reasonably be expected to impede, interfere with, delay, postpone or materially adversely affect
the transactions contemplated by the Merger Agreement or the likelihood of such transactions being
consummated and (iii) in favor
of any other matter necessary for consummation of the transactions contemplated by the Merger
Agreement which is considered at any such meeting of stockholders or in such consent, and in
connection therewith to execute any documents which are necessary or appropriate in order to
effectuate the foregoing, including the ability for Merger Sub or its nominees to vote such Shares
directly.
SECTION 1.2. No Inconsistent Arrangements. Except as contemplated by this Agreement,
the Stockholder shall not during the Term (i) transfer (which term shall include,
without limitation, any sale, assignment, gift, pledge, hypothecation or other
disposition), or consent to any transfer of, any or all of the Stockholder’s Shares or any interest
therein, or create or permit to exist any lien or other encumbrance on such Shares, (ii) enter into
any contract, option or other agreement or understanding with respect to any transfer of any or all
of such Shares or any interest therein, (iii) grant any proxy, power-of-attorney or other
authorization in or with respect to such Shares, (iv) deposit such Shares into a voting trust or
enter into a voting agreement or arrangement with respect to such Shares, or (v) take any other
action that would in any way restrict, limit or interfere with the performance of its obligations
hereunder or the transactions contemplated hereby or by the Merger Agreement.
SECTION 1.3. Proxy; Reliance. The Stockholder hereby revokes any and all prior
proxies or powers of attorney in respect of any of the Stockholder’s Shares and constitutes and
appoints Merger Sub and Parent, or any nominee of Merger Sub and Parent, with full power of
substitution and resubstitution, at any time during the Term, as its true and lawful attorney and
proxy (its “Proxy”), for and in its name, place and stead, to demand that the Secretary of
the Company call a special meeting of the stockholders of the Company for the purpose of
considering any matter referred to in Section 1.1 and to vote each of such Shares as its Proxy, at
every annual, special, adjourned or postponed meeting of the stockholders of the Company, including
the right to sign its name (as stockholder) to any consent, certificate or other document relating
to the Company that the General Corporation Law of the State of Delaware may permit or require as
provided in Section 1.1. The Stockholder understands and acknowledges that Merger Sub has entered
into the Merger Agreement in reliance upon the Stockholder’s execution and delivery of this
Agreement.
THE FOREGOING PROXY AND POWER OF ATTORNEY ARE IRREVOCABLE AND COUPLED WITH AN INTEREST
THROUGHOUT THE TERM.
SECTION 1.4. Waiver of Appraisal Rights. The Stockholder hereby waives any rights of
appraisal or rights to dissent from the Merger.
SECTION 1.5. Stop Transfer. The Stockholder shall not request that the Company
register the transfer (book-entry or otherwise) of any certificate or uncertificated interest
representing any of the Stockholder’s Shares, unless such transfer is made in compliance with this
Agreement.
SECTION 1.6. No Solicitation. During the Term, the Stockholder shall not, nor shall
it permit or authorize any of its stockholders, officers, directors, employees, affiliates, agents
or representatives (collectively, the “Representatives”) to, directly or indirectly, (i)
solicit, initiate, encourage, induce, entertain or facilitate the making, submission or
announcement of any Takeover Proposal or take any action that would reasonably be expected to lead
to an Takeover Proposal; (ii) furnish any information or data to any Person in connection with or
in response to an Takeover Proposal or an inquiry or indication of interest that would reasonably
be expected to lead to an Takeover Proposal; (iii) participate or engage in discussions or
negotiations with any Person with respect to any Takeover Proposal; (iv) approve, endorse or
recommend any Takeover Proposal; or (v) enter into any letter of intent or similar document or any
contract or agreement contemplating or otherwise relating to any Acquisition Transaction. Upon
execution of this Agreement, the Stockholder shall, and shall cause its Representatives to,
immediately cease and cause to be terminated any existing activities, discussions or negotiations
with any parties conducted heretofore with respect to any of the foregoing.
Notwithstanding any provision of this Section 1.6 to the contrary, if any Stockholder or any
of its Representatives is a member of the Board of Directors, such member of the Board of Directors
may take actions in such capacity to the extent permitted by Section 5.3 of the Merger Agreement.
SECTION 1.7. Public Announcements. The Stockholder shall consult with Parent before
issuing, and shall first provide Parent the reasonable opportunity to review and comment upon, any
press release or other
public statements with respect to the existence or terms of this Agreement, the Merger, the
Merger Agreement and the other transactions contemplated thereby, and shall not issue any such
press release or make any such public statement without the prior written consent of Parent, except
to the extent necessary in response to a judicial or similar investigative inquiry (including a
discovery request in a lawsuit), in which case the Stockholder shall make such disclosure pursuant
thereto only after first providing reasonable notice to Parent and affording Parent the opportunity
to seek to limit, prevent or protect such disclosure.
SECTION 1.8. Legending of Certificates. If requested by Parent, the Stockholder
agrees to submit to the Company contemporaneously with or as promptly as practicable following
execution of this Agreement all certificates representing its Shares so that the Company may note
thereon a legend, in form and substance reasonably satisfactory to Parent, referring to the Proxy
and other rights granted to Parent by this Agreement.
SECTION 1.9. Additional Shares. The Stockholder hereby agrees, while this Agreement
is in effect, to promptly notify Parent of the number of any new Shares acquired (whether upon the
exercise of options, conversion of convertible securities, exercise of warrants or by means of
purchase, dividend, distribution or otherwise) by the Stockholder, if any, after the date hereof.
SECTION 1.10. Disclosure. The Stockholder hereby authorizes Parent and Merger Sub to
publish and disclose in the Proxy Statement (including all documents and schedules filed with the
SEC), its identity and ownership of the Company Common Stock and the nature of its commitments,
arrangements and understandings under this Agreement.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Stockholder hereby represents and warrants to Parent and Merger Sub as follows:
SECTION 2.1. Due Authorization, etc. The Stockholder has all requisite power and
authority to execute, deliver and perform this Agreement, to appoint Merger Sub and Parent as its
Proxy and to consummate the transactions contemplated hereby. The execution, delivery and
performance of this Agreement, the appointment of Merger Sub and Parent as Stockholder’s Proxy and
the consummation of the transactions contemplated hereby have been duly authorized by all necessary
action on the part of Stockholder. This Agreement has been duly executed and delivered by or on
behalf of the Stockholder and constitutes a legal, valid and binding obligation of the Stockholder,
enforceable against the Stockholder in accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency, moratorium or other similar laws and except that the
availability of equitable remedies, including specific performance, is subject to the discretion of
the court before which any proceeding for such remedy may be brought. There is no beneficiary or
holder of a voting trust certificate or other interest of any trust of which the Stockholder is
trustee whose consent is required for the execution and delivery of this Agreement or the
consummation by the Stockholder of the transactions contemplated hereby.
SECTION 2.2. No Conflicts; Required Filings and Consents.
(a) The execution and delivery of this Agreement by the Stockholder does not, and the
performance of this Agreement by the Stockholder will not, (i) conflict with or violate any trust
agreement or other similar documents relating to any trust of which the Stockholder is trustee,
(ii) conflict with or violate any law applicable to the Stockholder or by which the Stockholder or
any of the Stockholder’s properties is bound or affected or (iii) result in any breach of or
constitute a default (or an event that with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, acceleration or cancellation of, or result in
the creation of a lien or encumbrance on any assets of the Stockholder, including,
without limitation, the Stockholder’s Shares, pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation
to which the Stockholder is a party or by which the Stockholder or any of the Stockholder’s assets
is bound or affected, except, in the case of clauses (ii) and (iii), for any such breaches,
defaults or other occurrences that would not prevent or delay the performance by the Stockholder of
the Stockholder’s obligations under this Agreement.
(b) The execution and delivery of this Agreement by the Stockholder does not, and the
performance of this Agreement by the Stockholder will not, require any consent, approval,
authorization or permit of, or filing with or notification to, any governmental or regulatory
authority (other than any necessary filing under the Exchange Act), domestic or foreign, except
where the failure to obtain such consents, approvals, authorizations or permits, or to make such
filings or notifications, would not prevent or delay the performance by the Stockholder of the
Stockholder’s obligations under this Agreement.
SECTION 2.3. Ownership of Shares. The Stockholder is the record and beneficial owner
of the Shares indicated in the preamble hereto. On the date hereof, such Shares constitute all of
the Shares owned of record or beneficially by the Stockholder. The Stockholder has, with respect
to such Shares, or will have, with respect to any other Shares of the Stockholder, sole voting
power, sole power of disposition and sole power to agree to all of the matters set forth in this
Agreement with respect to all of such Shares, with no restrictions, subject to applicable
securities laws, on the Stockholder’s voting power or rights of disposition pertaining thereto.
The Stockholder has good, valid and marketable title to such Shares, free and clear of all claims,
liens, encumbrances, mortgages, security interests and charges of any nature whatsoever
(“Encumbrances”) (other than the Encumbrance created by this Agreement), and shall not be
subject to any preemptive right of any stockholder of the Company.
SECTION 2.4. No Finder’s Fees. No broker, investment banker, financial advisor or
other person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or
commission in connection with the transactions contemplated hereby based upon arrangements made by
or on behalf of the Stockholder. The Stockholder, on behalf of itself and its affiliates, hereby
acknowledges that it is not entitled to receive any broker’s, finder’s, financial advisor’s or
other similar fee or commission in connection with the transactions contemplated hereby or by the
Merger Agreement.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF
PARENT AND MERGER SUB
PARENT AND MERGER SUB
Parent and Merger Sub hereby, jointly and severally, represent and warrant to the Stockholder
as follows:
SECTION 3.1. Due Organization, Authorization, etc. Merger Sub and Parent are duly
organized, validly existing and in good standing under the laws of the State of Delaware. Merger
Sub and Parent have all requisite corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby by each of Merger Sub
and Parent have been duly authorized by all necessary corporate action on the part of Merger Sub
and Parent, respectively. This Agreement has been duly executed and delivered by each of Merger
Sub and Parent and constitutes a legal, valid and binding obligation of each of Merger Sub and
Parent, enforceable against Merger Sub and Parent in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, moratorium or other similar laws and except
that the availability of equitable remedies, including specific performance, is subject to the
discretion of the court before which any proceeding for such remedy may be brought.
ARTICLE IV.
MISCELLANEOUS
SECTION 4.1. Definitions. Capitalized terms used but not otherwise defined herein
shall have the meanings ascribed to such terms in the Merger Agreement. The Stockholder
acknowledges that the Stockholder has been provided with a copy of the Merger Agreement.
SECTION 4.2. Termination. This Agreement shall terminate and be of no further force
and effect (i) by the written mutual consent of the parties hereto, (ii) automatically and without
any required action of the parties hereto upon the Effective Time or (iii) upon termination of the
Merger Agreement in accordance with its
terms. No such termination of this Agreement shall relieve any party hereto from any
liability for any willful breach of this Agreement prior to termination.
SECTION 4.3. Further Assurance. From time to time, at another party’s request and
without consideration, each party hereto shall execute and deliver such additional documents and
take all such further action as may be necessary or desirable to consummate and make effective, in
the most expeditious manner practicable, the transactions contemplated by this Agreement.
SECTION 4.4. Certain Events. The Stockholder agrees that this Agreement and the
Stockholder’s obligations hereunder shall attach to the Stockholder’s Shares and shall be binding
upon any person or entity to which legal or beneficial ownership of such Shares shall pass, whether
by operation of law or otherwise, including, without limitation, the Stockholder’s
heirs, guardians, administrators or successors. Notwithstanding any transfer of Shares, the
transferor shall remain liable for the performance of all its obligations under this Agreement.
SECTION 4.5. 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, or
any 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.
SECTION 4.6. Specific Performance. The Stockholder acknowledges that if the
Stockholder fails to perform any of its obligations under this Agreement, immediate and irreparable
harm or injury would be caused to Parent and Merger Sub for which money damages would not be an
adequate remedy. In such event, the Stockholder agrees that each of Parent and Merger Sub shall
have the right, in addition to any other rights it may have, to specific performance of this
Agreement. Accordingly, if Parent or Merger Sub should institute an action or proceeding seeking
specific enforcement of the provisions hereof, the Stockholder hereby waives the claim or defense
that Parent or Merger Sub, as the case may be, has an adequate remedy at law and hereby agrees not
to assert in any such action or proceeding the claim or defense that such a remedy at law exists.
The Stockholder further agrees to waive any requirements for the securing or posting of any bond in
connection with obtaining any such equitable relief.
SECTION 4.7. Notice. All notices and other communications given or made pursuant
hereto shall be in writing and shall be deemed to have been duly given or made (i) as of the date
delivered or sent by facsimile if delivered personally or by facsimile, and (ii) on the third
business day after deposit in the U.S. mail, if mailed by registered or certified mail (postage
prepaid, return receipt requested), in each case to the parties at the following addresses (or at
such other address for a party as shall be specified by like notice, except that notices of changes
of address shall be effective upon receipt):
| (a) | If to Parent or Merger Sub: | |||
| c/o Telmar Network Technology, Inc. | ||||
| 00000 Xxxxxx Xxxxxx Xxxx | ||||
| Xxxxxx, XX 00000 | ||||
| Attention: Xxxx Xxxxxxx | ||||
| Facsimile: (000) 000-0000 | ||||
| With a copy to: | ||||
| Xxxxxxx Xxxx & Xxxxxxxxx LLP | ||||
| 000 Xxxxxxx Xxxxxx | ||||
| Xxx Xxxx, Xxx Xxxx 00000 | ||||
| Attention: Xxxxxx X. Xxxxxxx | ||||
| Facsimile: (000) 000-0000; and | ||||
| (b) | If to the Stockholder: | |||
| S. Xxxx Xxxxx | ||||
| 5536 Caladium | ||||
| Xxxxxx, Xxxxx 00000 | ||||
| Facsimile: ___ |
SECTION 4.8. Expenses. Except as otherwise expressly set forth herein, 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.
SECTION 4.9. Headings. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
SECTION 4.10. Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any 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 hereby 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 transactions contemplated hereby are fulfilled to the
maximum extent possible.
SECTION 4.11. Entire Agreement; No Third-Party Beneficiaries. This Agreement
constitutes the entire agreement and supersedes any and all other prior agreements and
undertakings, both written and oral, among the parties, or any of them, with respect to the subject
matter hereof, and this Agreement is not intended to confer upon any other person any rights or
remedies hereunder.
SECTION 4.12. Assignment. Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in part, by operation of law or
otherwise.
SECTION 4.13. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware applicable to contracts executed in and to be
performed entirely within that State.
SECTION 4.14. Amendment. This Agreement may not be amended except by an instrument in
writing signed on behalf of Parent, Merger Sub and the Stockholder to be affected thereby.
SECTION 4.15. Waiver. Any party hereto may (a) extend the time for the performance of
any of the obligations or other acts of the other parties hereto, (b) waive any inaccuracies in the
representations and warranties of the other parties hereto contained herein or in any document
delivered pursuant hereto and (c) waive compliance by the other parties hereto with any of their
agreements or conditions contained herein. Any agreement on the part of a party hereto to any such
extension or waiver shall be valid only as against such party and only if set forth in an
instrument in writing signed by such party. The failure of any party hereto to assert any of its
rights under this Agreement or otherwise shall not constitute a waiver of those rights.
SECTION 4.16. Descriptive Headings; Interpretation. The descriptive headings herein
are inserted for convenience of reference only and are not intended to be part of or to affect the
meaning or interpretation of this Agreement.
SECTION 4.17. Counterparts. This Agreement may be executed (including by facsimile
transmission) in one or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original but all of which shall
constitute one and the same agreement.
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IN WITNESS WHEREOF, Parent, Merger Sub and the Stockholder have caused this Agreement to be
executed as of the date first written above.
| TELMAR NETWORK TECHNOLOGY, INC. |
||||
| By: | /s/ XXXX XXXXXXX | |||
| Name: | Xxxx Xxxxxxx | |||
| Title: | President | |||
| TELMAR ACQUISITION CORP. |
||||
| By: | /s/ XXXXXX XXXXX | |||
| Name: | Xxxxxx Xxxxx | |||
| Title: | President | |||
| /s/ S. XXXX XXXXX | ||||
| S. Xxxx Xxxxx | ||||
