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EXHIBIT 2.1
VOTING AGREEMENT
VOTING AGREEMENT ("Agreement") dated as of January 23, 2000 between I-Net
Holdings, Inc., a Delaware corporation ("I-Net"), and X.X. Xxxxx, Xx. ("Xxxxx")
and each of Xxxxx' affiliates whose name appears on the signature page hereto
(each a "Stockholder" and collectively, the "Stockholders").
W I T N E S S E T H:
WHEREAS, as of the date hereof, the Stockholders beneficially own an
aggregate of 1,553,460 shares of Common Stock, par value $.01 per share ("EVSI
Common Stock"), of Xxxxx Systems, Inc. a Texas corporation ( "EVSI") (such
shares of EVSI Common Stock and any shares of EVSI Common Stock acquired by the
Stockholders after the date hereof, the "Shares");
WHEREAS, I-Net is prepared to enter into an Agreement and Plan of Merger
among EVSI, I-Net and I-Net Acquisition Corp., a Delaware corporation and wholly
owned subsidiary of EVSI ("Sub"), (as amended from time to time, the "Merger
Agreement") providing for the merger of I-Net with Sub (the "Merger"), as a
result of which I-Net will become a wholly owned subsidiary of EVSI;
WHEREAS, in order to encourage I-Net to enter into the Merger Agreement
with EVSI, the Stockholders are willing to enter into certain arrangements with
respect to the Shares;
NOW, THEREFORE, in consideration of the premises set forth above, the
mutual promises set forth below, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Stockholders' Support of the Merger. From the date hereof until the
earliest to occur of (i) the termination of the Merger Agreement, and (ii) the
consummation of the Merger:
(a) Each Stockholder agrees that it will maintain beneficial
ownership of its Shares and will not, directly or indirectly, (i) sell,
transfer, pledge or otherwise dispose of any Shares to any person other
than I-Net or its designee unless such person shall have agreed in writing
to be bound by the terms of this Agreement, or (ii) grant a proxy with
respect to any Shares to any person other than I-Net or its designee, or
grant an option with respect to any of the foregoing, or enter into any
other agreement or arrangement with respect to any of the foregoing.
Notwithstanding anything herein to the contrary, it is expressly
acknowledged that X.X. Xxxxx Systems, Ltd. has pledged an aggregate of
684,250 shares of EVSI Common Stock to secure a margin loan with MacDonald
Investments and that nothing shall prevent the disposition or further
pledge of such shares to satisfy the obligations under such loan.
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(b) Each Stockholder will not initiate, solicit or encourage
(including by way of furnishing information or assistance), or take any
other action to facilitate, any inquiries or the making of any proposal
relating to, or that may reasonably be expected to lead to, any merger,
consolidation, share exchange, business combination or similar transaction
involving EVSI or any of its subsidiaries or the acquisition in any manner,
directly or indirectly, of a material equity interest in any voting
securities of, or a substantial portion of the assets of, EVSI or any of
its subsidiaries, other than the transactions contemplated by this
Agreement, the TSC Agreement (as defined in the Merger Agreement) or the
Merger Agreement (a "Competing Transaction"), or enter into discussions or
negotiate with any person or entity in furtherance of such inquiries or to
obtain a Competing Transaction, or agree to, or endorse, any Competing
Transaction, or authorize or permit any investment banker, financial
advisor, attorney, accountant or other representative retained by the
Stockholder to take any such action. Each Stockholder shall promptly notify
I-Net of all relevant terms of any such inquiries or proposals received by
such Stockholder or by any such investment banker, financial advisor,
attorney, accountant or other representative relating to any of such
matters and if such inquiry or proposal is in writing, such Stockholder
shall deliver or cause to be delivered to I-Net a copy of such inquiry or
proposal.
(c) Each Stockholder agrees that it will vote all Shares (i) in favor
of approval of the Merger Agreement and any other matters that are
conditions to consummation of the Merger and (ii) subject to the provisions
of paragraph (d) below, against any combination proposal or other matter
that may interfere or be inconsistent with the Merger (including without
limitation a Competing Transaction).
(d) Each Stockholder agrees that, if requested by I-Net, such
Stockholder will not attend and such Stockholder will not vote its Shares
at any annual or special meeting of stockholders at which a Competing
Transaction is being considered, or execute any written consent of
stockholders relating directly or indirectly to a Competing Transaction,
during such period.
(e) Each Stockholder acknowledges that the terms of this Agreement
will be required to be described, and this Agreement will be required to be
filed, in certain securities law filings relating to the Merger.
(f) To the extent inconsistent with the provisions of this Section 1,
each Stockholder hereby revokes any and all proxies with respect to its
Shares or any other voting securities of EVSI held by such Stockholder.
Notwithstanding anything to the contrary set forth herein, this Agreement
shall not restrict any Stockholder from acting in accordance with its fiduciary
duties as an officer or director of EVSI.
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2. Miscellaneous
(a) The Stockholders, on the one hand, and I-Net, on the other,
acknowledge and agree that irreparable damage would occur if 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 an injunction or injunctions to prevent
breaches of the provisions of this Agreement and to enforce specifically
the terms and provisions hereof in any court of the United States or any
state thereof having jurisdiction, in addition to any other stockholder to
which they may be entitled at law or equity.
(b) Descriptive headings are for convenience only and shall not
control or affect the meaning or construction of any provision of this
Agreement.
(c) All notices, consents, requests, instructions, approvals and
other communications provided for herein shall be validly given, made or
served, if in writing and delivered personally, by telecopy or sent by
registered mail, postage prepaid:
If to I-Net:
I-Net Holdings,Inc.
0000 X. Xxxxxxx Xxxx Xxxxxx
Xxxxx Xxxx, Xxxxx 00000
Attention: Mr.Xxxxxxx Xxx
Facsimile No.:(000) 000-0000
with a copy to:
Xxxxxxxx & Knight L.L.P.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X.Xxxxx
Fax No: (000)000-0000
If to the Stockholders:
Xxxxx Systems, Inc.
000 Xxxxxx X Xxxxx
Xxx Xxxx, Xxxxx 00000
Attention:X.X. Xxxxx, Xx.
Fax:(000)000-0000
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or to such other address or telecopy number as any party may, from time to
time, designate in a written notice given in a like manner. Notice given by
telecopy shall be deemed delivered on the day the sender receives telecopy
confirmation that such notice was received at the telecopy number of the
addressee. Notice given by mail as set out above shall be deemed delivered
three days after the date the same is postmarked.
(d) From and after the termination of this Agreement, the covenants
of the parties set forth herein shall be of no further force or effect and
the parties shall be under no further obligation with respect thereto.
(e) Definitions. For purposes of this Agreement, the following terms
shall have the following meanings:
(i) Merger. "Merger" shall mean the transaction referred to in
the second whereas clause of this Agreement, or any amendment to or
modification that does not adversely affect the economic value of the
Merger to the Stockholders pursuant to the transaction set forth in
the Merger Agreement.
(ii) Person. A "person" shall mean any individual, firm,
corporation, partnership, trust, limited liability company or other
entity.
(f) Due Authorization; No Conflicts. Each Stockholder hereby
represents and warrants to I-Net as follows: such Stockholder has full
power and authority to enter into this Agreement. Neither the execution or
delivery of this Agreement nor the consummation of the transactions
contemplated herein will (a) conflict with or result in a breach, default
or violation of any agreement, proxy, document, instrument, judgment,
decree, order, governmental permit, certificate, license, law, statute,
rule or regulation to which such Stockholder is a party or to which it is
subject, (b) result in the creation of any lien, charge or other
encumbrance on any of its Shares or (c) require such Stockholder to obtain
the consent of any private non-governmental third party. No consent,
action, approval or authorization of, or registration, declaration or
filing with, any governmental department, commission, agency or other
instrumentality or any other person or entity is required to authorize, or
is otherwise required in connection with, the execution and delivery of
this Agreement or each Stockholder's performance of the terms of this
Agreement or the validity or enforceability of this Agreement.
(g) Successors and Assigns. This Agreement shall be binding upon, and
inure to the benefit of, the parties hereto and their respective heirs,
personal representatives, successors and assigns, but, except as
contemplated pursuant to paragraph 1(a), shall not be assignable by any
party hereto without the prior written consent of the other parties hereto.
(h) Waiver. No party may waive any of the terms or conditions of this
Agreement except by a duly signed writing referring to the specific
provision to be waived.
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(i) Governing Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of Texas.
(j) Entire Agreement. This Agreement constitutes the entire
agreement, and supersedes all other and prior agreements and
understandings, both written and oral, among the parties hereto.
(k) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Stockholder and I-Net have each caused this
Agreement to be duly executed as of the day and year first above written.
I-NET HOLDINGS, INC.
By: /s/ XXXXXXX XXX
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Xxxxxxx Xxx
Chairman and Chief Executive Officer
/s/ X.X. XXXXX, XX.
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X.X. Xxxxx, Xx.
X.X. XXXXX SYSTEMS, LTD.
By: X.X. XXXXX MANAGEMENT, INC., its General
Partner
By: /s/ X.X. XXXXX, XX.
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Name: X.X. Xxxxx, Xx.
Title: President
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